Among deeply divided Americans, immigration has emerged as one of the most divisive issues. Before we can have a productive conversation about enforcement and reform of our immigration laws, we need to clear some conceptual ground.
Unfortunately, conversations about immigration today are dominated by rhetoric that obscures more than it clarifies. The immigration debate is often framed as a contest between the fundamental rights of immigrants and the national identity of Americans who are already here. But those norms only appear to be in conflict because they are misunderstood.
There is no reason the American people cannot honor and secure the fundamental rights of others and remain American. Indeed, as our founding documents teach, it is precisely to secure the rights each person receives from nature and nature’s God that governments are instituted.
Idealistic vs. Pragmatic Cases for Amnesty and Open Borders
Proponents of open borders and amnesty for immigration offenses sometimes argue that immigration enforcement inherently violates the fundamental rights of immigrants, even those who have come here without satisfying the formal predicates stipulated in United States law. Even thoughtful people characterize the right to cross national borders as “one of the most important human rights.” Less thoughtful (but no less influential) advocates for open borders even compare immigration restrictions to the Fugitive Slave Act, likening the right to enter another nation to the right not to be enslaved.
This is a radically different kind of argument from the pragmatic case for relaxing our immigration restrictions. And it is less amenable to nuance and countervailing considerations.
The pragmatic case is more modest. It largely turns on empirical questions and is amenable to sensible compromise. For example, to argue that increased immigration would enhance the labor force and improve our economy is to argue that we should relax immigration restrictions to the extent required to enhance the labor force and improve our economy. This is not an argument for open borders. Nor does it justify refusal to enforce the laws we have. It justifies changing the laws in certain respects and to a certain degree.
By contrast, the argument from a purported right to enter and reside in the United States (or any other particular nation) is a compromise-stopper. If every human being has a fundamental right to cross national boundaries at will, then it would be arbitrary and unjust to allow only some people to enter the United States. Except to declare existing limits on the right itself, such as forfeiture by committing some crime, the law must not limit the right. The argument for a fundamental right to immigrate forces us to choose all or nothing.
The argument is also confused. The underlying muddle is a confusion of two different rights. The right to leave a country where people are oppressed—a real fundamental right—is jumbled together with the right to choose some other country in which to live. Unlike the right to emigrate from a country, which is fundamental and universal, there is no universal, fundamental right to immigrate to a specific country. The right to immigrate is inherently conditional and contingent.
To see this distinction, we can consider how rights work generally. A right has no juridical effect unless it directs some person to act in response to some legal responsibility. The meaning of a right is supplied by the duty, liability, or other legal disadvantage with which it correlates. Unless someone bears legal responsibility to act or refrain from acting because of a right, the right is merely a rhetorical device.
For example, there is no universal or fundamental right to buy a house, because one has no right to buy any particular house. In order to obtain ownership of a house, I must find someone who is willing to sell his house to me. If you offer your house for sale, and I agree to buy it and pay the deposit, then I have a right to acquire title to the house, contingent upon the stipulations in our contract. I have a right to the house insofar as you have a duty to provide it.
We cannot generalize my right to buy your house beyond the bilateral transaction between you and me. I have no right to buy a house in a national park, for instance, or in a neighborhood consisting entirely of condominium units and apartments.
Obviously, the right to immigrate to any particular nation is more momentous than the right to buy a house. But, like the right to acquire a house, the right to immigrate is contingent upon the assent of a particular duty-bearer. It requires that the nation against which one claims the right shall have some duty to take the immigrant in and give her the equal protection of its laws. The right to immigrate is therefore contingent upon the existence of such a nation and its laws, and it is conditional upon the formal requirements stipulated in those laws.
The American National Identity
Without ideals and laws, we would not be a nation. We would simply be a collection of people who happen to reside in the same geographic area. But proponents of open borders do not seek a universal right to immigrate to a geographic area on the north American continent. They seek a universal right to immigrate to the United States of America.
It might seem like a truism to say that any right to immigrate to the United States of America is contingent upon there being a United States of America. But the existence of the United States as a distinct nation is in fact at stake in the assertion of a fundamental right to cross national boundaries.
Consider what this nation is. This nation, of all nations, is constituted by its political commitments and its laws, including the laws that define citizenship and legal residence. Many people miss this when speaking of our national identity. An American is not identified by his race or ethnicity but by his acceptance of the burdens and benefits of living in a nation committed to particular jurisprudential principles (especially our idea that all humans are endowed with natural rights and are capable of self-governance, our presumption in favor of ordered liberty, and the equal protection of the laws) and our particular institutions (especially private property, due process of law, and religious liberty). It is, of course, those very same commitments that have made the United States of America so free, so prosperous, and so attractive to immigrants.
To be sure, our laws could be other than they are. Theoretically, we could abolish all legal definitions and limitations on citizenship and residency. We would still have political ideals, civic institutions, and laws, and thus we would still have a national identity. But we would lack the power to secure and protect our national identity as a people committed to our distinctive principles. In potentiality and principle, the United States of America would be a different nation than she is.
Because American national identity is grounded in principles of natural rights, liberty, and equal protection rather than race and ethnicity, the effect of any particular immigrant on the coherence of our national commitments is also contingent rather than fixed. An immigrant’s fit with our national character depends not on the immigrant’s race or ethnicity but rather on his willingness to accept American principles as his own.
What makes the United States of America this nation—the nation that it is in fact—and not some other nation is determined by the security that our laws provide for our common commitment to our principles and institutions. A fundamental right to immigrate to the United States would mean that the United States has no power to make laws restricting or regulating citizenship and residence in the United States. The United States would have no means to preserve the character of her people as a people committed to what makes this nation the nation it is, the nation in which hundreds of millions of people around the world long to reside. So, any right to immigrate to the United States is contingent upon the very laws that a universal right to immigrate to the United States would in principle negate.
Universal Rights—and Duties
None of this is to deny that there exist universal, fundamental rights. Indeed, there are such rights, and they are grounded in the law of reason and human nature. Genuine fundamental rights do not depend on the particular laws of any state or nation. But such rights are very different from a right to immigrate to the United States.
Like particular rights to acquire houses and to establish residence in different nations, universal rights are defined and understood by their correlative duties. A universal, fundamental right correlates with a universal duty of abstention—a duty not to perform some action—rather than a duty of action. This feature is at the core of a universal right, which is the same for everyone. Everyone can obey the same duty of abstention with respect to everyone else and in all circumstances, no matter what particular laws provide, by doing nothing.
For example, everyone has the right not to be enslaved or trafficked. The meaning of this right is supplied by its correlative duty: the duty each and every one of us bears not to enslave each and every other human being in the world. Because this is a duty to refrain from acting, it requires no prior agreement or laws or conditions or materials. It requires only that each of us not supervene his will upon the autonomy of another person by asserting ownership over that person.
Nearly all fundamental rights correlate with duties of abstention. The right to life means that all of us owe everyone else a duty not to kill them intentionally. The right not to be defamed means that each of us owes everyone else a duty not to slander or libel them. These duties are not contingent upon any particular laws. We can know them through the exercise of reason. And we can satisfy them everywhere, under any circumstances, in the same way.
Because of these duties of abstention, everyone has fundamental rights not to be intentionally harmed. Americans owe these duties to each other and to non-Americans. And everyone else owe these duties to us. So, we should not intentionally harm foreigners among us, just as we expect not to be intentionally harmed when traveling abroad.
Among the universal, fundamental rights every person enjoys is the right to leave his nation of origin. This right to emigrate is unlike the right to immigrate, because it is not contingent upon any legal conditions or stipulations. Every political official can honor this right by doing nothing. Indeed, the right is not even contingent upon the existence of political officials. Every person can honor every other person’s right to leave an oppressive society simply by not preventing their exit. But that right does not entail the right to enter any particular nation.
Immigration policy is a complicated issue, far more complicated than many people seem willing to acknowledge. Until we work through the considerations at stake, we should enforce the laws we have, except to the extent that they infringe genuine, fundamental rights.