Immigration Policy and the Consent of the Governed

In observing the situation at our southern border, one is reminded of Alexander’s Hamilton’s words in Federalist 15: “We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience.”

In March, Customs and Border Protection (CBP) stopped over 100,000 illegal migrants from crossing our southern border. That is the equivalent of ten army divisions. Any other nation would call the streaming in of 100,000 aliens—unannounced, uninvited, unvetted, and in flagrant disregard of our remarkably humane asylum policy—an invasion. But not us. We are told by our elites that to call it such is immoral. As one academic put it:

The belief that we in the West have the right to decide who has the right to move, and to where, is perhaps one of the most hazardous myths of our times. . . . Open borders are already a reality, not some future utopian dream. . . . we need to rid the world of a highly discriminatory approach to immigration.

March’s numbers are not unique. Each month, tens of thousands of people enter our country illegally. In fact, we don’t even know how many illegal migrants populate the nation. Official figures (released by those who cannot stop their entry) put the number at 12.5 million, while a recent study published by Yale University estimated that the number is higher—likely somewhere between 16.7 and 29 million.

Our constitution is founded on the principle of the consent of the governed: the public chooses not just the policies by which it is ruled, but the future of its own nation. Yet this flagrant violation of our laws and the public’s will continues to take place despite the American public’s disapproval. Polls show that a majority of citizens consistently oppose illegal immigration. Why is the American people’s reasonable opposition to illegal immigration constantly delegitimized?

Why our Present Circumstance Continues

An unseemly unity of interested factions has brought about our present circumstance. First is the outsized influence of the many immigration activists motivated by moral fanaticism. Take the example of “Pueblos sin Fronteras” or “People without Borders.” These are the organizers of the “caravan” of 14,000 Central American migrants that tried to illegally force its way into America last year. Much of the mainstream press defended the caravan, portraying its participants as courageous.

The caravan’s slogan is “We are all Americans, say no to discrimination.” The clear implication is that any exclusion from the nation constitutes discrimination. Since a majority of Americans would discriminate in this way, the implication is that Americans are moral inferiors animated by a racist animus in denying these individuals entry.

The audience for the continuing stand-off theater at the border is those Americans who, having lost their sense of the nation, have made compassion the highest—and perhaps the only— virtue. In our late liberal democracy, once real religious belief (which would instruct believers to save souls), and a capacity for genuine political sentiment (which would deal with the justice one owes to fellow citizens or one’s nation) no longer animate citizens, a thin form of compassion becomes their only virtue. This compassion allows one to profess love for all humanity without ever having to make sacrifices for it. It does not require one to reflect on justice rationally, only to sympathize with pain. The extreme rule of compassion encourages individuals to judge the nation from the apolitical perspective of a household.

This relentless campaign directed at middle-class decency would not be possible, just as there would be no migrant crisis, if the border were secure. Without a wall to secure the border, America’s cycle of migrant crises will continue year after year. Most Americans and illegal aliens sense that amnesty is around the corner. Once that vote comes before Congress, the American public will be placed in a situation where the scale is rigged, tilted in favor of amnesty because few will have the stomach to remove so many illegal migrants from the nation. This is rule by manipulation of decency, not consent.

Yet none of this explains the ruling elite’s motives on immigration. Last year on Meet the Press, Ben Rhodes, the former deputy national security advisor to President Obama, explained the point frankly and shockingly. He observed that President Obama said he became president ten or twenty years too early. Obama, said Rhodes, “kind of arrived before the demographic tipping point.” Apparently, demographic change is a prerequisite for unalterable and complete liberal rule. Working in unison with those like Rhodes, though less clear-minded about the long-term social effects, is the oligarchic class thirsty for cheap labor.

Intellectual elites frequently talk about the inevitability of limitless migration to try to prevent public anger or action. They do not seek the public’s consent for political outcomes; instead, they would prefer to force them on a reluctant public. Today, the fanaticism of activists, the ambitions of elite political operatives, and the passive passions of an apolitical public combine to determine our nation’s future through immigration policy.

By What Principle Should We Be Ruled?

Many well-meaning people think that the universal principles of the Declaration of Independence mean that anybody who wants to be an American should be able to become one. While this may be a noble sentiment, we might recall that the reason that the colonies rebelled against English rule was the trampling of citizens’ consent. America has a “separate and equal station” among the nations of the world, the Declaration states. We are not a homogenized, borderless humanity, but a particular nation.

In fact, the purpose of our constitution is to secure the rights of American citizens. For this reason, the Constitution grants the federal government the power to secure the nation from foreign threats. This means, most obviously, enforcing the nation’s borders. Thus, Congress is given not only the power to command the Army and Navy to protect national borders, but also the power to “repel Invasions.”

The unconsented habitation in the United States by 12.5 million (and likely more) illegal aliens is a form of invasion. An invasion need not consist of armed soldiers. As Robert Natelson points out:

Nathan Bailey’s 1783 English dictionary defined “invasion” as “a descent upon a country, an [sic] usurpation, or encroachment.” Similarly, Thomas Sheridan’s 1789 dictionary and the 1785 edition of Samuel Johnson’s dictionary defined “invasion” as “Hostile entrance upon the rights or possessions of another, hostile encroachments.”

The founders relied heavily on certain political theorists in creating the Constitution. Those theorists considered it a gross dereliction of duty to the nation’s citizens for the government to fail to protect its borders. For example, Samuel von Pufendorf held that a sovereign state has both the right to decide whom to exclude and the right to punish those who disregard its decision. He deemed it:

very gross and absurd, to allow others an indefinite or unlimited Right of traveling and living among us, without reflecting either on their Number, or on the Design of their coming; whether supposing them to pass harmlessly, they intend only to take a short view of our Country, or whether they claim a Right of fixing themselves with us for ever.

Making clear political judgments regarding who enters the nation and whether this entry benefits citizens is the right of a free people. The Supreme Court has for a long time agreed, holding that “The exclusion of aliens is a fundamental act of sovereignty.”

If the US Government does not control the nation’s borders, American sovereignty is effectively defined by foreign citizens, foreign nations, and the domestic factions that support them. This transformation takes place slowly, almost imperceptibly, and over a number of years.  It is unmistakable, for instance, that Mexico (and other nations from which large numbers of migrants originate) now depend economically on remittances sent from the United States.

Indeed, many nations now have a crucial interest in continuing to increase the number of migrants that enter the United States. More than half (6.6 million) of America’s illegal migrants are from Mexico. The World Bank estimates that Mexico received a total (from legal and illegal aliens) of 30 billion dollars in remittances in 2017. That’s around 2 percent of its gross domestic product. For smaller countries, the proportions are even more significant. 750,000 illegal migrants from El Salvador reside in the United States; total remittances account for 18.5 percent of El Salvador’s GDP. Similarly, 440,000 thousand Hondurans live in the United States illegally, and total remittances account for 18.4 percent of Honduras’s GDP. The list goes on. While these are obviously small countries compared to America, they have developed a national interest in sending more of their citizens to the United States. That means that they also have a vested interest in building up a supportive domestic voting bloc.

In the past, this could have been less significant, but the rise of identity politics today, which teaches the sacredness of ethnic and racial identity and hatred of America for its sins, makes possible the creation of unbending factionalism of the kind our constitutional system cannot sustain. James Madison’s solution to domestic factions—an extended republic containing many competing factions—works only when America is divided primarily into economic factions. Economic interests, Madison hoped, would subsume factions that would otherwise be based in religious, racial, and ethnic difference.

From the founding until the late nineteenth century, many of America’s states, acting out of consideration for the interest of their citizens, banned the entrance of convicts, paupers, the sick or diseased, and those not able to work. They chose whom to accept and whom to exclude. After this period, the federal government, through its legitimate representatives, began to set immigration policy.

Americans today still have the right and duty to choose what kinds of immigrants the nation receives. Migration requires mutual consent between citizens and immigrants. There is no constitutional or moral justification for this hodge-podge of ruling factions—partly interested, partly fanatical, partly ambitious—to choose for the American public its own future.

Previously, the essay mentioned Immigration and Customs Enforcement (ICE) instead of Customs and Border Protection (CBP). This mistake has since been corrected.