Stuart K. Hayashi
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| Screen shot from the motion picture "Born in East L.A.," prod. Peter Macgregor-Scott, dir. Cheech Marin, (Universal Pictures, 1987). |
In the comments section of a website I often frequent, I was struck by this comment, as it demonstrates so much of what so many "immigration skeptics" either do not understand or wish not to understand:
I really don’t see what facts of reality give rise to the idea that one has a natural right to cross a foreign border. That’s about as correct as thinking he has a right to a roof over his head. I hate to start from an abstraction here, but to short cut, I think we all agree at least that a man has a natural right to his life. That is not a right to my life or to any of those that make up my group, America.
The presumption in that statement is that your peaceable immigration imposes a burden on other people, comparable to demanding that other people provide you shelter at their own expense. It implies that your ability to immigrate to the United States must be incumbent upon everyone else -- or, more accurately, the State -- granting you permission. Mark Steyn states this more explicitly, "...immigration has to benefit the people who are already here. ...there are too many unskilled Mexican peasants flooding into a country with ever diminishing social mobility and no hope of economic improvement..." (emphasis Steyn's).
No, there is but one constraint that can rightfully be placed upon the implementation of your plan to immigrate: you must do it peaceably. Were someone to immigrate to the United States for the conscious purpose of commencing a planned terrorist attack, of course that person has no right to immigrate. This is because the sole condition that a constitutional liberal republican Night Watchman State can morally place on any action is that the action must be peaceful, not initiating the use of force upon anyone else.
Presuming That Immigrants Are Violent Is What Justifies Restricting Immigration? A Presumption of Guilt Is Not Enough
Many people try to stereotype immigrants as rapists or terrorists, and say that this presumption of guilt would justify the United States banning immigration from countries with which the USA has not so much as declared war. In actuality, the legal presumption of innocence that all U.S. citizens deserve does rightfully apply to non-citizens from nations at which the U.S. is not at war. Note that the United States Constitution properly recognizes that if someone suspects a would-be immigrant of desiring to commit a crime, that the would-be immigrant deserves the same legal presumption of innocence as a native-born citizen. The Fifth Amendment states,
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use... [emphasis added].
Observe the second word. The Bill of Rights does not say "No citizen shall be held to answer for a capital, or otherwise infamous crime...nor deprived of life, liberty, or property, without due process..." It says no person. That includes non-citizens: human "aliens."
To those who insist that the U.S. Constitution's first Ten Amendments are to protect only U.S. citizens and not aliens within the U.S. jurisdiction, it should be pointed out that the word citizen does not appear once in the Bill of Rights (read it here).
We know that the U.S. Founding Fathers interpreted the Fifth Amendment as applying to non-citizen, non-slave foreigners, and not merely U.S. citizens, because Thomas Jefferson himself stated this. The Alien Friends Act of 1798 was supposed to give the U.S. President sweeping powers to deport allegedly dangerous foreigners residing in the USA. Thomas Jefferson opposed that, saying:
The imprisonment of a person under the protection of the laws of this commonwealth, on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by said act intituled [entitled] "An Act concerning aliens" is contrary to the Constitution, one amendment to which has provided that "no person shalt be deprived of liberty without due process of law," and that another having provided that "in all criminal prosecutions the accused shall enjoy the right to public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense," the same act, undertaking to authorize the President to remove a person out of the United States, who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without heating witnesses in his favor, without defense, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, and of no force.
James Madison, father of the U.S. Constitution, explains that himself:
Again it is said, that aliens not being parties to the constitution, the rights and privileges which it secures, cannot be at all claimed by them.
To this reasoning also, it might be answered, that...it does not follow, because aliens are not parties to the constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws, than they are parties to the constitution; yet it will not be disputed, that as they owe on one hand, a temporary obedience, they are entitled in return, to their protection and advantage. . . .
If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens. ... Alien friends [meaning foreigners from nations that the USA has not declared war against] except in the single case of public ministers, are under the municipal law, and must be tried and punished according to that law only.
That is, if the United States has not formally declared war against a country, the U.S. government must treat those born of that country with the same legal presumption of innocence as it does its own citizens. That Immigration and Customs Enforcement (ICE) incessantly tosses people into detention centers, absent of carefully obtained warrants, is not consistent with the Bill of Rights.
And James Madison went farther. He stated that if a foreign national is from a country at which the USA has declared war, and remains in a state of war with the USA, then that foreign national is what he called an "alien enemy." Madison concluded that the U.S. government is authorized to deport such "alien enemies." By contrast, he said, if a foreign national within the USA is from a country at which the USA has not declared war, and is not in a state of war with, then that foreign national is an "alien friend." In today's political context, persons from Mexico are what Madison would categorize as "alien friends." And, in the same line of argumentation, Madison explained that if an immigrant within the USA is not from a country at which the USA has declared war, then the U.S. government has no rightful business at all in deporting that immigrant.
It is said, further, that by the law and practice of nations, aliens may be removed at discretion, for offences against the law of nations; that Congress are authorized to define and punish such offences; and that to be dangerous to the peace of society is, in aliens, one of those offences.
The distinction between alien enemies and alien friends, is a clear and conclusive answer to this argument. Alien enemies are under the law of nations, and liable to be punished for offences against it. Alien friends, except in the single case of public ministers, are under the municipal law, and must be tried and punished according to that law only. . . .
Nor is the act of Congress, for the removal [deportation] of alien friends, more agreeable to the general practice of nations, than it is within the purview of the law of nations. The general practice of nations, distinguishes between alien friends and alien enemies. The latter it has proceeded against, according to the law of nations, by expelling them as enemies. The former it has considered as under a local and temporary allegiance, and entitled to a correspondent protection.
A proper application of the principle that Madison explicated is that since Congress does not acknowledge that the USA is officially in a state of war against Mexico, the U.S. federal government has no rightful business in its deportation of Mexicans.
Freedom Means That, Legally, You Need No One Else's Permission to Do What Is Peaceful
Yes, you do have a right to cross over the parts of a national border that are not private property. Much of the U.S.-Mexican border on the south of Texas is private land (more about that below), and the border splits the community of Nogales in two, the northern part being in Arizona and the southern part being in Sonora, Mexico. But most of the border on the edges of California, Arizona, and New Mexico is federal land that is wilderness area. Because most of the border is wilderness area hardly used by humans, it is not very practical to think of border-crossings in these spots as trespassing. For practical purposes, the very-temporary crossing over this land treats this wilderness area as if it is terra nullius or res nullius, meaning that it is not privately owned or used much by any private party.
In a free society, freedom of action is the default. The default is: non-involvement on the part of the State. If someone wants to use State violence to restrict your freedom, the onus is upon that person to justify the exercise of State violence upon you. If the migrant is intruding upon your private plot and trying to be a squatter on your private property, that is a trespass against you, and you would have the moral right to call the police and ask the police to dispense force to protect you. But if the migrant crosses into my private plot and I consent to that, it is not incumbent upon me or the migrant to beg for the permission of people outside of my private plot that the migrant be allowed by third parties to lodge on my private plot.
Here is the fallacy in how the first quotation conflates my right to immigrate with a demand on my part that the State compel you to provide me shelter and other forms of wealth. If I said I have a right to a roof over my head at your expense, that would be initiating the use of force to compel action on your part. If I cross the national border and find refuge on the private plot of someone who consents to me being on the private plot, that does not violently compel any action on your part. It actually happens without your help.
What About When People Cross Over Private Plots That Are Along the Border?
There are private plots along parts of the U.S.-Mexican border in Texas, though, and sometimes impoverished people from south of the border do have to resort to a quick crossing over the landholders' private plots in the absence of the landholders' permission. Some landholders consider this intolerable and demand federal action to stop it. In most cases I would side with the landholders. However, there are important considerations in these cases that merit attention.
First is the "coming to the nuisance" doctrine. That is the legal doctrine stating that if a "public nuisance" already existed in a particular location, and then you choose to move yourself to that location, you implicitly consent to the nuisance and thereby rightfully forfeit the legal authority to take action against that. Suppose there is a factory emitting soot; it has been there for fifty years. Then, last year, I chose to move next to that factory, failing to anticipate how much the air pollution would bother me. I would be forfeiting the authority to sue the factory's owner, as I was the one who "came to the nuisance"; the factory's actions have been grandfathered in. In the case of private homes on the U.S.-Mexican border, those border crossings have already been numerous since 1965; this has already been recognized throughout the 1980s. were it the case that I moved to one of those plots in the year 2004 and only then started to notice the border crossing, I would be coming to the nuisance, and it would be silly for me to demand State action only now.
Second, there are cases of emergencies where the law should take the emergency into consideration and grant leniency where it would otherwise judge that someone violated private property rights. Suppose that you were on the continental United States in winter in the wilderness and, through a rare error in judgment, you found yourself caught in a snowstorm. However, you find a secluded cabin and recognize that the one way for you to survive the night is to enter the cabin. You find that no one is in it. If you break into the cabin and stay there for the night, that would normally be recognized as violating private property rights. However, if this is an unusual occurrence for you and the cabin's owner, the law should take into consideration both that rarity and the urgency of the situation.
Ordinances and statutes are not deontological categorical imperatives that the State is duty-bound to enforce for their own sake. Ordinances and statutes must exist and be enforced only for the greater end that is maximizing each person's ability to live freely in the long term. For you to demand that other people always provide you food, shelter, education, and health care over the course of years is an entirely different matter -- that is not a sudden emergency situation. For people in Third World kleptocracies, the choice is either to immigrate to a freer country or die. In the cases of impoverished people in Ecuador and Syria, they are in an emergency situation. I don't find it proper for any government to demand that people give them long-term housing and social services. But considering that their choice is to migrate or die, their decision to cross borders -- sans any government's approval -- is reasonable. Also reasonable is that they have resorted to using fake Social Security numbers to find employment (this is also why they put money into the Social Security system but are unable to collect from it).
To the degree that impoverished, desperate people -- people who would otherwise die early if not for the migration -- are resorting to trampling over private land to reach the United States and resorting to using fake Social Security numbers, the long-term solution is to make it easier for such people to enter the USA legally so that they can do so over no one's private land and can find employment without providing any Social Security number. That would involve removing the cap on the number of visas issued annually or, better yet, abolishing the visa system altogether.
And, again, much of the U.S.-Mexican border on the southern edges of California, Arizona, and New Mexico is not private property.
The Right to Migrate Is the Right to Live
Hence, the first commenter contradicts herself with these two statements: (1) "I really don’t see what facts of reality give rise to the idea that one has a natural right to cross a foreign border" and (2) "a man has a right to his own life."
A man's right to his own life is the very fact of reality that gives rise to the idea that one has a natural right to cross a foreign border.
That is, the right to immigrate peacefully is a logical corollary to the right to live peacefully. Peaceful immigration is a noble enterprise, and to deny free immigration is to deny free enterprise.
Recall that in an earlier post, I asked you to imagine the following: that you are a slave in the early 1800s but have a relatively benign master. For the most part, the master lets you do what you want: the master lets you open your own business on the side and you can keep most of your own money. The master allows you to read and write. The master allows you to speak your mind and argue back at him without violent reprisal. The master lets you do what you want in ways similar to a permissive parent permitting adolescent children to do as they please.
This would raise the question over whether your situation would be considered relative freedom, and the answer is no. You do what you want, but this is merely at the master's mercy. If the master undergoes a change of heart, or if legal control over you changes hands to another party, it may be the case that you won't have as much leeway in the future. Even if we assume that your master will outlive you and will not change in temperament, it is unjust that what you do, you do merely at the master's permission. A free man or woman is free to do what he or she wants peaceably in the absence of anyone's permission -- that is what it means to have a right to one's own life.
To live is to take peaceable action. That is, in order to live, you must take peaceable actions -- you must find a means of obtaining food, either as gifts from willing givers, or growing your own food, or exchanging your services for such food. You must make choices on whether you will marry and, if you enter a marriage, with whom it will be. You must make choices on whether to have children and, if you do have children, you must make choices on how to rear them. And, if you were born in a country that is impoverished due to a kleptocratic government discouraging long-term entrepreneurship and investment, you must make a choice on whether to remain in this danger or to immigrate to a freer place such as the United States. Insofar as your legal ability to perform these actions actually hinges on permission from the State, you are not free to perform these actions. Nay, you are free to perform these peaceable actions insofar as other people are unable to request that the State veto these actions of yours.
When you immigrate, that is no less of an action that you take to live than is your choice to start a business or to write a poem or to marry. The right to start a peaceful business -- even without anyone else's permission -- is an implementation of the right to live. The right to express oneself freely -- even without anyone else's permission -- is an implementation of the right to live. The right to immigrate -- even without anyone else's permission -- is an implementation of the right to live. And to deny my right to peaceful immigration is to deny my right to live.
For the benefit of someone like the first commenter, that cannot be stated often enough. To have freedom does not mean that, as a consequence of other people continually approving your requests, you are largely able to go through life doing what you want. To have freedom means that your legal authority to perform any peaceable action required no one else's permission in the first place.
What this means is that if I want an immigrant to stay on my land, and that immigrant travels from his own country to my plot of land, the immigrant has a moral right to do this -- regardless of what the federal laws are concerning visas -- no matter how much that first commenter disapproves and wishes the State would quash this action. That is really not any of the first commenter's business.
As Ayn Rand wrote in her Textbook of Americanism, "If, before undertaking some action, you must obtain the permission of society -- you are not free, whether such permission is granted to you or not. Only a slave acts on permission" alone. That applies to peaceable movement across borders. If I peaceably invite a Mexican to lodge on my own piece of real estate, and other people proclaim that they should have the authority to call upon government force to rescind my invitation if they deem appropriate, then those other people do not respect anyone's right to take actions to sustain one's own life -- they do not respect the Mexican's right to live, nor my own -- even if they ultimately grant their precious permission to the Mexican and me to follow through with our arrangement. To respect anyone's right to live peaceably means acknowledging that one should have no authority at all to call upon the State to overrule, veto, or suspend any party's peaceful action, of which migration qualifies.
Immigration Making the Difference Between Violent Death and Human Flourishing
Do not forget that laws are ultimately enforced at gunpoint, and the U.S.-Mexican border is enforced by the threat of violence toward the undocumented immigrants. From 2010 to 2016 -- this was under the Obama administration -- thirty-three would-be immigrants, such as Sergio Hernandez Guereca, were shot dead by the Border Patrol. James Tomsheck, who was chief of internal affairs at U.S. Immigration and Customs Enforcement (ICE) for much of that duration -- brought this matter to the attention of National Public Radio. The Obama administration claimed it fired Tomsheck for failing to investigate these deaths, but Tomsheck alleges the exact opposite: that he was fired on account of his investigating these deaths, as he found that at least seven of them were under suspicious circumstances. On May 23, 2018, a 19-year-old Guatemalan named Claudia Patricia Gómez González was shot dead in Rio Bravo, Texas, by a border agent because she was in a crowd of undocumented border-crossers defending themselves against the agent with blunt objects (here and here).
when Kira Argounova decided that she would attempt to cross a national border illegally, she implicitly and properly recognized that the justness of that action required no one else's approval. She sought no one else's permission; the idea did not so much as enter her mind. Nor should it have. Her survival and freedom are what mattered. That was a direct consequence of Kira Argounova cherishing her right to her own peaceable life as paramount. Also observe the injustice inflicted on her as a result of government agents successfully enforcing that border.
When the federal government manages to deport impoverished South Americans to the kleptocracies from which they fled, it often precipitates tragedies not unlike what Ayn Rand described in that novel. Steven Sacco elaborates,
One study found that between January 2014 and September 2015 eighty-three deportees who were sent back to Honduras, Guatemala, and El Salvador were murdered after their return. They were people fleeing the killers who eventually took their lives. People like José Marvin Martínez, who fled violence in Honduras and made it to the U.S. when he was 16, but was deported and four months after his forcible return was shot to death. Or Juan Francisco Diaz, also deported back to Honduras, where he too was murdered a few months later. Or Giovanni Miranda, who, after spending most of his life in the U.S., was deported to El Salvador to be murdered in front of his wife and son in June 2015. Or Edgar Chocoy, 16, who ran away from a gang to the U.S. only to be murdered by that same gang seventeen days after he was deported back to Guatemala in 2004. Or an unnamed teenager who was shot to death hours after being deported back to San Pedro Sula, Honduras. Moises, 19, was murdered after he was deported to El Salvador. And there are too many more names we’ll never know.
What’s more, the number of deportees delivered directly to their killers does not include those who survive attempted murder or other violence because of their deportation — a number no one knows. Isais Sosa, who was 19 when the Los Angeles Times covered his story in 2014, survived being shot by a gang days after his deportation. The 19 year old daughter of Dora Lina Meza fled to the U.S. from the same gang that, after she was deported back home, raped her at gun point. After Juan Ines Alanis was deported he was kidnapped and held for ransom while his fingers were smashed with a hammer.
By contrast, what goes unconscionably overlooked are the exhilarating cases of migrants from south of the U.S.-Mexican border not merely surviving, but living and thriving to the greatest extent. Consider that decades ago, Alfred Quinones-Hinojosa of Mexico illegally hopped a fence into the USA. As one would probably expect, he got by as a low-paid migrant farm worker. He also saved his money and eventually sent himself to medical school. As I type these words, he is among the planet's top brain surgeons, a man who has saved the lives of native-born Americans. Decades earlier, numerous Mexicans arrived legally under the the bracero program to labor on California's vineyards. They, too, saved their money. Some of these families eventually purchased vineyards for themselves and have become the entrepreneurs running them. You can read Amanda Machado's profiles of ten such vineyard-owning Napa Valley families.
Similar to the Dreamers, Mexican-born Julissa Arce came to Texas illegally with her parents when still a child -- in her case, at age eleven. She has since risen to the role of one of Goldman Sachs's vice presidents. And the younger generation is no less promising. In 2004, Christian Arcega and three other Mexican-born Arizona-based Dreamers at Carl Hayden Community High School prevailed over mighty MIT in a competition to build the most effectively operating underwater robot.
Nor is Mexico the lone impoverished Spanish-speaking country that serves as a source of productive go-getters. Both Jose Wilfredo Flores and Carlos Castro arrived illegally from El Salvador. Flores started W Concrete, which grossed $6.6 million in 2011. As for Carlos Castro, the firm he started, Todos Supermarket, brought in $18 million in 2012. We are all better off as a result of federal immigration restrictions being unable to thwart the efforts of these people to come to the USA and realize their potential more freely than would have been possible to them had they been confined to their nations of origin.
Such realities expose the injustice of Mark Steyn's presumption that a person's right to immigrate to another country -- that is, a person's right to live -- must hinge on whether the people in that country believe that this will be of benefit to them. If I want an immigrant on my land, and that immigrant agrees to lodge on my land, that immigrant is living justly even if it is widely believed that the immigrant is benefiting no one but himself.
Poor people migrate to freer countries because they are trying to avoid an early death -- that is, they migrate to freer countries to live. To say that they have no natural right to do this peaceably -- that their ability to migrate must be at your mercy -- is to deny them their right to their lives.
On Monday, January 30, 2017, I added the quotation from Ayn Rand's Textbook of Americanism and the rest of the paragraph in which I quote that. On this date, I also added the infographic about how the land of the United States is not all a socialist commons, but instead consists of many plots adjacent to one another, many of which are private parcels owned by separate private parties that can decide for themselves whether they will lodge the foreign-born or not. I actually made that infographic on August 26, 2015. The original draft already quoted Mark Steyn, but, on February 12, 2017, I added the part of the quotation about "Mexican peasants." Also on February 12, 2017, I added the quotation from James Madison about the legal presumption of innocence applying to resident aliens just as well as to U.S. citizens. On March 9, 2017, I added the quotation from Thomas Jefferson citing and explaining the Fifth Amendment. On December 31, 2017, I added the paragraph about immigration and the Statue of Liberty. On January 20, 2018, I added the quotation from Steven Sacco about people dying violently soon after being returned to their kleptocracies of origin, and I added the paragraphs about the success stories from those who came from Mexico and El Salvador. On Wednesday, January 24, 2018, I added the point that the word "citizen" does not appear once in the Bill of Rights. I also added more of the quotation of James Madison. on January 26, 2018, I added the quotation from Madison about alien friends and, for the original quotation about constitutional protection, I changed the link from the Google Books book to a link to the Founders Archives website. On February 21, 2018, I added the mention of most of the border on the southern edges of California, Arizona, and New Mexico being federal wilderness area, in contrast to the border that Texas shares with Mexico, and I added the paragraph about James Tomsheck finding that the Border Patrol shot dead 33 aspiring immigrants. On May June 6, 2018, I added the sentence about the 19-year-old would-be migrant Claudia Patricia Gómez González being shot dead in Rio Bravo, Texas, by a border agent..
