David R. Henderson  

Our Rights versus Government "Rights"

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In a post earlier this morning, in which I responded to Kurt Schlichter, I quoted the following from Schlichter:

Number One: We Americans have an absolute right to decide who does and doesn't come into our country and the conditions under which they may do so.
Immigrants have no right to be here. None. They may be granted that privilege, if we choose to grant it. And we may take it away, too.

I then challenged him by asking what he means by "We Americans." I stated "I know that, as a U.S. citizen, I've never had the power to decide who does or doesn't come to this country." I ended by saying "He's saying that the government has the right. At least I think he's saying that."

Various commenters challenged me by claiming that I just have not accepted the nation state. I'll quote from one, Robert Schadler:

I expected far more from the intelligent libertarian economist that David Henderson is. Perhaps his personal experience as an immigrant that was, briefly and innocently, violating immigration law colored his thinking. More likely, as another commentator also suggested, it was that libertarians have still not yet figured out how to deal with the geographical nation-state. Preferring another system is fine, but practical policy proposals need to be in the real world.

By the way, before I start to disagree with Mr. Schadler, I thank him for his generous adjective to describe me.

I can see how my post led him to think this. I also think that in some contexts, this criticism of me could be legitimate. But I don't think it's legitimate in this context.

Why? Because my point was more subtle than Mr. Schadler and other commenters gave me credit for--too subtle, it turns out--and that is probably my fault, not theirs.

Here's why I even raised the issue of what Schlichter means by "We Americans." It wasn't to claim that I should have the right to decide who comes to this country. That's too heavy a lift, especially for a blog post. It's to make a point about Schlichter's use of rhetoric to mislead.

Schlichter is a good rhetorician. What adds power to his rhetoric is his invocation of "We Americans." It can cause the reader to imagine powerful Americans standing up and claiming their rights. What it doesn't do is communicate accurately that all Schlichter means by "We Americans" is "the U.S. government." So it was important for me to point out that "We Americans" doesn't literally mean "We Americans." It means simply "the U.S. government," no matter who is in charge of the U.S. government.

If you doubt the rhetorical effectiveness of Schlichter's use of language, try the following replacement for his bolded statement above:

Number One: The U.S. government, even when run by President Obama, has an absolute right to decide who does and doesn't come into our country and the conditions under which they may do so.

See the difference?




COMMENTS (15 to date)
MikeP writes:
...libertarians have still not yet figured out how to deal with the geographical nation-state.

Libertarians know exactly how to deal with the geographical nation-state.

In particular, libertarians recognize, as the founders of the United States recognized, that governments do not have rights: they have powers. Libertarians also recognize, again as the founders did, that only individuals have rights and that the only legitimate purpose of government is to secure those rights.

So it is to be entirely expected that a libertarian -- intelligent, economist, or neither -- would react negatively to the statement "We Americans have an absolute right." We Americans each have individual rights, but we do not have a collective right.

Furthermore, libertarians recognize that sovereignty is not a rational basis for any claim in a normative argument. Robert Schadler's comment relies entirely on an argument from sovereignty. But sovereignty is simply the positive fact that a nation-state can do whatever it wants within its jurisdiction. It provides no argument or evidence for what a nation-state should do within its jurisdiction. As such, it has no standing in an argument of what immigration policy should be.

LD Bottorff writes:

Illegal immigration is a very emotional issue. Many people who are not at all hurt by the presence of millions of hard workers still object to the idea that someone can jump across a border (or over-stay a visa) and get a job. Others simply think it's wrong to deport people whose only crime was wanting something better for their families.

I applaud your efforts to make reasoned arguments.

John Thacker writes:

It's similar to saying that "We Americans have an absolute right to determine taxation and non-profit status in this country." Does it follow from that that every conservative and Tea Party group denied non-profit status by the IRS under the current Administration should be treated as "illegals" and forcibly dissolved?

"We Americans have an absolute right to regulate commerce and prevent discrimination," so all conservatives like Kurt and others view various Christian bakers in Colorado and Oregon as "illegals" who should submit to having their business licenses revoked, since what they did violated the law in those states, as determined by a majority of voters and their elected representatives?

Technically, according to the Constitution one might say that "we Americans have an absolute right to regulate slavery." It's certainly true that in the 1850s the first thing many people wanted admitted about fugitive slaves in free states was that they were "illegals" who were violating the law. Discussing free soil or the status of slavery was one thing, but helping people violate the law was another thing altogether.

James Hartwick writes:

@ David Henderson

Point taken about the effectiveness of Schlichter's rhetoric. I don't know that any of your readers actually fell for it, though. I think most of us saw through it when we read Schlichter's words, but were then confused by your response.

@ LD Bottorff

Illegal immigration is a very emotional issue. Many people who are not at all hurt by the presence of millions of hard workers still object to the idea that someone can jump across a border (or over-stay a visa) and get a job.
It is perfectly reasonable -- I would almost go so far as to even say "morally right" -- to object to wrongs being done even if one personally isn't hurt by that wrong. By the standard you implicitly propose, nobody would get involved in righting any wrongs that didn't hurt them personally.
Dan King writes:

For a similar point of view, please see my post about immigration: http://trotskyschildren.blogspot.com/2013/07/immigration-si.html

And also a critical review of Mr. Schlichter's book, here: http://trotskyschildren.blogspot.com/2014/08/book-review-conservative-insurgency.html

(Sorry, but inadvertently added to Mr. Caplan's post in error.)

johnleemk writes:

Per John Thacker, this "collective property rights" argument proves too much. It is essentially saying "As long as the nation-state makes the rules, you have to follow them."

LD Bottorff / James Hartwick, the crux of the problem here is actually a disagreement on whether it's immoral to immigrate without government permission.

Most open borders advocates would say as long as you don't do something that would be wrong for a citizen to do (e.g., stealing is a crime whether you're a citizen or not), it's morally permissible to migrate in disregard of a country's immigration laws -- and certainly in disregard of the preferences of that country's citizens.

There are consequentialist defences of the morality of migration restrictions, to be sure. But what we're talking about right now are just communitarian or deontological defences of these laws' morality. And the inexorable conclusion of this communitarian/deontological logic is that any community which structures itself as a nation-state has the right to exclude people from itself via any set of arbitrarily-defined rules it chooses.

But what purpose do these arbitrarily-defined rules serve? What wrongs do they right? Ultimately, the only "wrong" that immigration restrictions instituted on this basis serve to "right" is the "wrong" sort of people settling inside the borders of the nation-state.

So the moral disagreement boils down to: some people believe it is a moral wrong (where 'wrong' is defined purely by the tastes of the community, not on any utilitarian or consequentialist basis) for certain kinds of people to live inside our borders, and thus morally commendable for the law to restrict these people from moving here. Some others don't necessarily believe it is a moral wrong, but believe it is morally permissible for government to enforce laws against the mobility of others if some people in the community believe it is morally wrong for the "wrong" people to live among us. These two groups support and/or accept the border status quo. On the other hand, open borders advocates and libertarians like David Henderson think it is morally impermissible for anyone, even a majority of the public, to commandeer the force of the law to enforce this sort of purely taste-based discrimination -- and thus, in their eyes, immigration restrictions adopted on this basis are morally wrong.

That's where the moral disagreement about illegal immigration comes to a head. Either you think it's morally wrong for people to move to a community where some / most people hate them, or you think it's morally fine.

MikeP writes:

It is perfectly reasonable -- I would almost go so far as to even say "morally right" -- to object to wrongs being done even if one personally isn't hurt by that wrong.

To follow johnleemk, what exactly is the wrong when someone travels, resides, or works on the opposite side of a border from where he was born?

From a first principles position, who is actually committing the wrong? Is it the person who freely resides and works where he finds mutual agreement with someone to sell him housing and employ him? Or is it the person who uses force to prevent that free travel and free association?

John Thacker writes:

Another example of a right that we possess as individuals that the government does not-- the US Supreme Court has held that the government (and local and state governments) cannot refuse to do business with a company on the basis of public statements (which will get Denver in trouble over Chick Fil A.) However, an individual or private group boycotting a company is perfectly legal. (In practice, of course, governments can and do find pretextual reasons, just as individuals and companies can find pretextual reasons when they might be violating an antidiscrimination law in spirit.)

Les Baker writes:

The concept of an "absolute right" is utter nonsense, no matter who it is who claims to hold one.

One person's "right" is a claim against another person's "obligation", where "obligation" is uderstood to refer to a duty to do, or not to do, a certain thing. Rights are infringed only when corresponding obligations are breached. The institution by which obligations are recognized and enforced, and breaches and infringements are remedied, is what we refer to when we say "law."

When used in the way that Kurt Schlichter uses it here, the word "absolute" takes its root meaning: "absolved from the law". The term "absolute right" contemplates not a right under the law, but some sort of right above the law, a nonsensical "right" to behave lawlessly.

Substitute the words "unconstrained power lawlessly to decide" for "have [or 'has'] an absolute right to decide" in either formulation of the proposition under discussion, and the stakes clarify themselves. Anything the U.S. government does is supposed to be done under law and according to law. The government can't have an "absolute right" to do anything. Nor can "we" arrogate to our collective selves such an "absolute right", if we want to continue to live in a community of laws.

When I first studied administrative law, Professor Kenneth Culp Davis made a point to remind the class, at some time during the course, that "aliens have rights." So, "we" owe obligations to them. Kurt Schlichter's assertion boils down to the opposite proposition, that they don't, and we don't.

Bedarz Iliaci writes:

National territory is one thing that the economists have failed to account for properly. It is not a property in the sense that the national territory is owned neither by the Govt nor by the people collectively. The economists have no language and no concept for a territory that is possessed by a people but not owned by them.

It is not that libertarians have failed to account for the geographic nation-state. It is that they failed to account for the nation per se. They have failed to realize that the nation, the family and the individual form three irreducible levels of the human organization.

MikeDC writes:

@Bedarz
Excellent point. I've tried to figure out how to express this before, and every time I do my fellow libertarians seem to blatantly ignore it. Maybe I'm not speaking the same language.

I don't know that the nation is an "irreducible level of the human organization" though. I'd generalize your point about property and geography to say that property rights and enforcement of property rights are reciprocal.

That is, without a community of folks will support my rights, I really have none at all. And even if those people are strangers, that sort of social contract gives them at least a little claim over my property in return.

-------------

To follow johnleemk, what exactly is the wrong when someone travels, resides, or works on the opposite side of a border from where he was born?

Nothing per se. But the question in practice is almost entirely a matter of whether the folks that come are doing other, more objectionable things. Some of them certainly are, even if most are not, and it's my belief that the steadfast refusal to acknowledge the problems causes problems for the vast majority that we should let in.

Chandran writes:

In her maiden speech to the House of Representatives of the Australian Parliament, Pauline Hanson argued that ‘if I can invite whom I want into my home, then I should have the right to have a say in who comes into my country.’ In criticizing Australia’s immigration policy for admitting too many people and too many Asians, the newly elected Member for Oxley was giving expression to a commonly advanced claim: the people have the right to determine who may come to their country. The same argument was made more recently in the United States by Patrick Buchanan, who wrote: ‘America is our home. We decide who comes in and who does not, how large the American family becomes, whom we adopt and whence they come.’

If the issue is whether or not I should be able to decide who comes into my own, single-occupant, home I am all for the principle that I and I alone decide. But once I am no longer the sole occupant things get more worrying. If I share that home with my partner, I agree that we should be free to decide who may and who may not come in. But I would be unhappy if my partner routinely exercised a veto over my wishes to invite someone in. If that home were a family, I would not like it if I were told either that the head of the household exercised a veto, or that everyone I wanted to invite home had to be approved by the majority. If that household were a shared house I would be even less happy about living in it if I could not invite someone in without collective approval.

Extend the size of the home to an apartment block, or to a neighborhood. One could of course have an arrangement that gave everyone either a veto or a vote on who came in. But the less discretion anyone has to invite outsiders in, the less attractive that arrangement seems to me. (I note that a distinction might be drawn between inviting someone to come in to visit or live, and inviting someone to become a member or shareholder. The owners of a condominium might want some say by the collective on who gets to buy in. Though again, the fussier and more meddlesome they are, the less attractive the place would be, at least to me.)

Of course a country is not a house, or an apartment block, or a neighborhood. The analogy is imperfect. Nonetheless, my sense is that if a neighborhood that restricts one’s freedom to let outsiders in is less attractive for that, then a fortiori a country is less attractive to the extent that it denies one that freedom. I readily grant that not everyone feels this way.

MikeP writes:
what exactly is the wrong when someone travels, resides, or works on the opposite side of a border from where he was born?

Nothing per se. But the question in practice is almost entirely a matter of whether the folks that come are doing other, more objectionable things. Some of them certainly are, even if most are not, and it's my belief that the steadfast refusal to acknowledge the problems causes problems for the vast majority that we should let in.

No. The question in practice is that the United States has an immigration policy based on quotas, limited durations, and employment prohibitions, all having nothing whatsoever to do with any of those prospective immigrants doing anything at all objectionable.

Bedarz Iliaci writes:

MikeDC,

"irreducible level of the human organization"

Libertarianism is the reduction of nation into a collection of individuals. If so, you run into all kinds of puzzles eg. chandran's comment above.

In natural law, one acquires or comes to own an unowned resource by mixing one's labor with it.
But how much labor needs to be mixed with which resource?. The answer is not provided by the natural law or even by economics.
The answer is provided by the consensus of a particular society i.e. by laws of a particular nation or tribe. So, private property can only exist within a nation.

Nation or people: possess a territory by brute force.
individuals: own parcels within that territory by law.

That property is secured by law and not by force is most significant and also a point entirely neglected within economics.

MikeDC writes:

Bedarz,
My objection is that in practice "the consensus of a particular society" is not limited to the "laws of a particular nation or tribe".

Groups enter and leave these sorts of arrangements internationally and intranationally all the time.

I'm just suggesting that the scope of arrangements is, in practice, broader than just "nations" and the rationale need not always reduce to "brute force". The nation is just a special case of the overall.

In practice though, you're exactly right that there is always something, a government, a HOA, or your wife's disapproval standing by to "limit" your freedom to do some things while it preserves your freedom to do others.

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