The Right to Immigrate As the Implementation of the Right to Live

Why You Have a Natural Right to Immigrate



Stuart K. Hayashi




He [the impoverished refugee seeking asylum from enslavement and violence] shall dwell with thee, even among you, in that place which he shall choose in one of thy gates, where it liketh him best: thou shalt not oppress him.

—Deuteronomy 23:16

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.

It saddens me that, throughout 2017, I saw so many slurs on Twitter and Facebook against "Third World migrants."  Those "Third World migrants" are explicitly welcomed by a sign next to an important statue associated with the United States.  It is not an accident that the statue that welcomes impoverished immigrants is called Liberty.  Liberty and the freedom of migration are inseparable.



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).

For those who have not yet read Ayn Rand's We the Living, I caution that I will provide a spoiler in italics:

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. On Monday, January 12, 2026, I added the quotation from Deuteronomy..

If All Masters Were Nice, Slavery Would Still Be Evil; If No Husbands Were Abusive, Women's Rights Still Would Need to Be Codified

Stuart K. Hayashi

 We know the horror stories about slavery. The details of "close packing" are horrible (note that the very term "close packing" is very misleading in how it conceals the brutality of what was done). But I want to make another point: even looking at a case of a relatively benign master genuinely concerned about the well-being of his slaves demonstrates what is wrong with slavery.

“Benevolent” Slave Masters?

Robert McCormick and his son Cyrus McCormick receive credit for the mechanical reaper machine named for them. However, Cyrus McCormick's grandson, Cyrus McCormick II, wrote a family history in which he said that much of the credit for co-invention actually must belong to a black slave of the family named Jo Anderson.

There is evidence that the McCormicks genuinely cared about Jo Anderson's well-being: "According to some accounts, Anderson and McCormick were more like brothers than slave and master. ... Family records show that McCormick purchased a log cabin on a small plot for Anderson in his later years and that McCormick and his son supported Anderson until his death sometime after 1888."

If Your Master Was Never Violent Toward You, Your Position As Slave Would Still Be Wrong 

Let's pretend, for argument's sake, that we could wave a magic want that would not have abolished slavery back then but would have suddenly made all slave masters genuinely caring about their slaves, and the more on the benign side, such as the McCormicks. Would that make slavery okay? No, it would not. Let's imagine that you are a slave, and you have one of the more benign masters. For the most part, you can do what you want without him punishing you. Would that make your situation okay? No, it would not. Never mind that even when a slave had one of the more benign masters, it was still the case that if he wandered too far beyond the plantation, he could come across vigilantes who could get away with murdering him without legal recrimination.

It would still be the case that every time you take a bite of food, it is considered a handout from the master. If the master lets you start your own business and keep what you earn from it, it is still the case that you are only doing this at his permission -- whim, really -- and that, if one day on some whim he decided to revoke all these "privileges" from you, the law would be on his side. That's why it was not sufficient merely to ask masters to be more benign. If you were a slave and all the masters chose to be more benign, it would be the case that you remain completely at their mercy and it is only by their mercy that you are not starved, beaten to death, or destroyed. Even if you have the world's nicest master, nothing would justify anyone having that much authority over you and your peaceful actions in the first place.


This Also Applies to the Rights of Women As Independent Entities 

 The same principle applies to how women are treated by the law. Let's imagine you are a woman and married to a very rich man who is also the world's nicest man. He could legally get away with beating you up, but he doesn't because he's so nice. Would that mean your situation is fine? No, it would not be, because you should not have to count on anyone being nice -- you should not be at anyone's mercy -- when it comes to you taking your own peaceful choices and looking peaceably out for your own well-being. Regardless of how nice or mean anyone is, the law should recognize that you own your life and it is yours by right -- not merely at others' charity or mercy.


UPDATE from Monday, January 30, 2017:  Also see the post "Why You Have a Natural Right to Immigrate: The Right to Immigrate As Implementation of the Right to Live." I say:

As Ayn Rand wrote in her Textbook of Americanism, "If, before undertaking some action, you 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.

If You Care More About Blocking Immigrants' Access to Welfare Than Reducing Welfare in General, You're Neo-Malthusian, Not Capitalist

Stuart K. Hayashi

 Insofar as people favor restricting immigration on the basis that they hold zero confidence that their political economy can support that many people, they are necessarily a neo-Malthusian. Yes, that even applies -- especially applies -- if those detractors against open immigration claim to value the free market and to reject the welfare state.

No Increase in a Population’s Size Is Big Enough to Destroy a Market Economy 

 The reason I say that is this: a truly sustainable model of political economy is one that can support an indefinitely large number of people. A market economy has shown itself capable of sustaining a growing population.

If the population grows at a rate that exceeds the rate at which food can be produced, the price of food increases and this incentivizes entrepreneurs to find methods of producing more food. When more food is available on the market, the real (inflation-adjusted) price goes down again.

If there is not enough land to produce more food, land rents increase. That incentivizes entrepreneurs like Karl Bosch, Cyrus McCormick, and John Deere to develop cheaper methods of producing more food on less land. Once those cheaper methods allows more food to be grown on less land, land rents decrease again.

If it comes to housing -- if there are too many people on not enough land, that incentivizes entrepreneurs to improve the carrying capacity of land -- hence, when land prices went up, such entrepreneurs as William LeBaron Jenney, Henry Clay Frick, Elisha Graves Otis, and Willis Haviland Carrier made skyscrapers possible. Skyscrapers allowed for more people to be housed on the same amount of land; land prices (in real, inflation-adjusted terms) decreased. There is no population size too large for a market economy to handle in the long term.

But in the Zero-Sum Game of the Welfare State, Shouldn’t We Side With Native-Borns Over Immigrants? 

 The typical rejoinder to this is, "But we're not a market economy anymore. We are a mixed-economy welfare state. Now immigrants can come and infest our tax-funded schools, use our tax-funded hospitals, and drive on our tax-funded roads. They will deplete everything, rendering the welfare state unsustainable."

What that rejoinder ignores is that the welfare state would continue to be completely unsustainable if there were zero immigration. Were immigration reduced to zero, the welfare state would persist in disincentivizing productivity. Were immigration reduced to zero, the population could have net increases in size if people kept living longer and the death rate dropped. Thus, instead of blaming immigration or other additions to the population's size for making the welfare state unsustainable, you should blame the welfare state itself for making the welfare state unsustainable. 

 If there were no immigration, the welfare state would still collapse upon itself, albeit at a slower rate.

 Were it the case that immigrants were a net drain on the welfare state's coffers -- and that claim is actually dubious -- that would merely mean we would have to face reality sooner rather than later.

It is not the case that the welfare state would be sustainable if not for immigrants being a net drain on it. What many people understand, deep down, is that the welfare state is unsustainable by its nature, and is in for a reckoning.  They blame immigrants to the degree that they believe that the immigrants will make us face this reality sooner rather than later. Too many of us want to believe that if it were not for immigrants, we could go on obliviously pretending that we and our children and grandchildren would not have to worry about the welfare state's self-destruction.

In this respect, the welfare state is an addict. The addict will tell you that you are kind if you give him his next "fix" and help him pretend that his situation is fine and that he is not due for any sort of rude awakening. Conversely, if you refrain from enabling him and let him go through withdrawal -- let him his rock-bottom sooner -- the addict and his army of sycophants will cal you mean-spirited and cruel. But we know that, in the long run, the kindest route is to allow the addict to face the consequences of his poor choices much sooner rather than later, not helping to delay the inevitable. 

 Insofar as a man says that immigration should be restricted on the basis that immigrants deplete the welfare state's coffers at a rate faster than it otherwise would be depleted, that man is disingenuous when he calls himself a critic or detractor of the welfare state. To try to preserve the welfare state's coffers, by blocking immigrants' access to them, is not to let the  addict face what needs to be faced;  it is to be an enabler ensuring that the addict will still be able to get his next few fixes in the near future.

To Block Immigration to Stop Them From Accessing Welfare Is Not to Oppose Welfare But to Conceal Dorian Gray’s Portrait

Recall the story of Dorian Gray. The man remains young and beautiful as he grows old and increasingly performs evil. As this goes on, all of the depravity and corruption appears on a portrait of him -- the ugliness of the portrait represents the ugliness accumulating in Dorian Gray's soul. In time, Dorian Gray hates to look at the portrait, because he does not want to confront the what his choices have made of him. He does not want to contemplate the unpleasant reality.

Were it the case that immigrants were causing the welfare state's coffers to drain at a rate faster than they would otherwise be drained, those immigrants would not be changing the nature of the welfare state; they would simply be showing us its logical conclusion at a date earlier than was expected. That is, they would be helping us face reality sooner rather than later. They would be helping Dorian Gray take a look at his own portrait.

If you block immigrants' access to welfare while preserving that same welfare for the native-born, you are doing nothing to combat the welfare state. You are doing nothing to liberalize the economy and doing nothing to help people keep their private earnings. You are not standing up for anyone’s private property rights on principle. You are not opposing, on principle, the government’s compulsory extractions of wealth from people. You are simply an enabler to Dorian Gray, helping him to avoid looking at his portrait for another day.

Worse, you are violating my private property rights. If I invite a foreigner to come onto my private estate peaceably, and this person agrees to stay on my private estate peaceably, we are not harming anyone else’s person or private property . . . even if that foreigner makes the trip without having gotten permission from the U.S. federal government in the form of a visa. Yet enforcing restrictions on immigration would entail that armed federal agents invade my private parcel and manhandle this peaceful foreigner.

That is what, in practice, advocates of immigration restriction are calling for, and I am incensed that this governmental overreach is advocated under the guise of some sort of free-markters’ defense of private property against the welfare state. Anti-immigrationists who pretend to love the free market are a Dorian Gray, too, and holding up the portrait to them means reminding them that they are the ones begging the government to initiate the use of physical force on peaceful people.


Conclusion
The real test of how sustainable a model of political economy -- be it a constitutional liberal republican Night Watchman State or a welfare entitlement state -- is in the long term is whether it is able to support a growing population, regardless of how it grows or the rate of growth.  If a society must forcibly restrict the size of its population -- be it through immigration restriction or a one-child-per-family policy -- to remain "sustainable," then its model of political economy is not sustainable at all; period.

If someone objects more to immigrants accessing welfare than he objects to the welfare being accessible to anyone, then his main gripe is not with the welfare per se.  By contrast, we principled free-marketers understand that a system that pays welfare exclusively to the native-born is no more sustainable in the long run than a system that pays welfare to the native-born and foreign-born alike.Those who would block immigrants' access to welfare simply to ensure that the native-born will continue receive first dibs on that welfare spending in the coming decades, are not helping us to fight the ill effects of the welfare state but instead are working to preserve those ill effects for future generations.

To the degree that a welfare state pits immigrants against the native-born in a zero-sum competition over who gets more tax-funded loot, those of us who are native-born should stop scapegoating the immigrants, and turn our disapproval to the politicians who imposed and continue to impose this corrupt situation on us in the first place.  Thus, in lieu of scapegoating the foreign-born for destroying a system that would destroy itself if the foreign-born were altogether absent, let us work to dismantle the self-destructive system and replace it with voluntary charity and productive for-profit enterprise.   

How Eight Immigrants Helped Create the United States By Breaking the Law

Stuart K. Hayashi



My former hero Rush Limbaugh resents it when any defense of undocumented immigrants calls attention to the fact that everyone in the United States is either an immigrant or descendant of immigrants. (Even American Indians descended from people who originally came from Siberia.) Rush replies, “For Obama to tell people that you and I are no different from the current crop of illegals, well, the difference is that back then people obeyed the law.”

Oh, really? I can name eight immigrants from olden times who broke the law:

* Matthew Thornton

* Francis Lewis

* John Witherspoon

* Robert Morris

* James L. Smith

* George Taylor

* James Wilson

* Button Gwinnett

These eight immigrants did not follow the law. They committed a serious crime -- treason -- because they signed the Declaration of Independence. 

Note that these eight had something else in common with the present array of undocumented immigrants -- these eight all also came to the North American continent without applying for any visas. There were no federal restrictions on immigration until 1875 with the Page Act, which was intended to stop Asian women from arriving on these shores. The follow-up to that was the Chinese Exclusion Act of 1882, which was protectionist and explicitly racist.

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The infographic I created for this:

Rule of Law, As a Legal Philosophy, Is on the Side of Undocumented Hispanic Immigrants, Not Those Trying to Deport Them

Stuart K. Hayashi

As right-wingers cite “the rule of law” as a reason why undocumented Hispanic immigrants should be deported, those right-wingers invoke a legal philosophy that means the exact opposite of what they assume it means.



The Immigration Skeptics’ Misunderstanding of Rule of Law
They assume that the doctrine of Rule of Law means, The law is the law, and you have to follow the law! This assumption that we have every duty to follow every statute would actually preclude any civil disobedience against unjust laws. Anyone who took this seriously would assume it was wrong for blacks and whites to associate with one another in the South during Jim Crow; it would assume it was wrong to participate in the Underground Railroad; it would assume that it was wrong for entrepreneurs to flout Prohibition by distributing and selling alcohol. It would even assume that the American Revolution was wrong; the Boston Tea Party defied statutes.

Nowadays right-wingers invoke the term “Rule of Law” when demanding punishment of Hispanics who immigrate the United States without getting a visa first, a visa being a license for long-term immigration. They sputter that if you are not keen on deporting a peaceful person who immigrated without a license, you are, at best, being arbitrary in what laws you think should and should not be enforced and, at worst, an anarchist. That is the implication from Ted Cruz’s presidential campaign website when it proclaims that deporting undocumented immigrants is all about enforcing the Rule of Law, obviously ignoring the fact that Ted Cruz was just fine with how Kim Davis brazenly broke the law. On many instances where I defend the rights of undocumented immigrants, right-wingers (here is an example) tweet at me that I am disrespecting the Rule of Law. These right-wingers who try to use “the Rule of Law” as a club with which to bludgeon undocumented immigrants demonstrate that they do not know what the Rule of Law is or what it means.

The Rule of Law has always been a legal philosophy and, thanks to the British legal scholar Albert Venn Dicey in the nineteenth century, it came to be widely known in the West as a distinctly classical-liberal legal philosophy. And this philosophy, taken to its logical conclusion, comes down on the side of the undocumented immigrants and not on the side of those wishing to deport them.



What the Rule of Law Actually Is
An early usage of the term comes from the ancient Roman historian Livy (Titus Livius) who, in the introduction to Book II of his History of Rome, enthused that the Roman republic was finally going through a period of "rule of law, not of men." By this he meant that the Roman republic was clamping down on the arbitrary powers of the Head of State and began placing more emphasis on enforcing a consistent legal code on everyone. The idea also gained currency with John Adams, who wrote that constitutions were to ensure a "government of laws, not a government of men," again with the latter term referring to arbitrary powers on the government’s part. Yet the term Rule of Law gained most renown from the British legal scholar and jurist A. V. Dicey, who said that the Rule of Law has three planks. They are, in my words, not Dicey's:

1. The law must be codified and available to all literate residents of a realm to read and study. That is, it is not sufficient to have a monarch saying that he keeps track of all the laws in his own head without spelling out for everyone else what the laws are. That is arbitrary power -- what Titus Livius and John Adams called the rule "of men."

2. The law applies equally to all residents of the realm. Livy, John Adams, and Dicey most specifically mentioned this because they resented that government officials felt that laws which they enforced on other people did not apply to themselves and their relatives. For example, suppose the governor cracks down on burglars. Then the governor learns that his own nephew is among the burglars. The governor decides, "I will prosecute all burglars, except for my nephew, because I know that his being prosecuted would upset my whole family." That is arbitrary power and not the equal application of the law to all residents of the realm. Hence, it would be a violation of the rule of law and be an instance of “the rule of men.”

Note, however, that there is a wider application of this plank. Dicey said that the law must apply equally to all residents of the realm and not divide them into separate legal classes. That is, he said that it is not the case that members of one class be treated one way by the law and that there be another (second- or third-tier) class treated differently by the law. We will revisit this at the end of my essay.

3. The final plank states outright that your individual rights -- your right to live peaceably with your property, as described by Locke -- are more important than any and all written laws, more important than statutes and even constitutions. As Albert Venn Dicey says, "The 'rule of law,' lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the rules in which foreign countries naturally form part of a constitutional code, are not the true source but the consequence of the rights of individuals, as defined and enforced by the Courts; that, in short, the principles of private law have with us been by the action of the Courts and Parliament so extended as to determine the position of the Crown and its servants; thus the Constitution is the result of the ordinary law of the land" (emphasis added).

The Classical Liberal Freedom, to Do Anything That Is Peaceful, Outranks All Statutes and Even Constitutions
By the third plank, Albert Venn Dicey meant that the individual rights described by John Locke -- to live peaceably with your property, not aggressed upon by the State -- come first, and legislation is valid only to the degree that it protects those rights.  As Dicey puts it, "...each man's individual rights are far less the result of our constitution than the basis on which that constitution is founded." That is, your liberty to do anything that is peaceful is superior to -- outranking -- any statute or ordinance, and even constitutions. Dicey, being a jurist, held more confidence in courts than in statutes, and hoped that courts would overturn -- or at least refuse to enforce -- unjust statutes that violate your right to do anything that is peaceful.

Applying that principle already nullifies the political Right's arguments against undocumented Hispanic immigrants. Applying the third plank means that if you want the law to send armed men after undocumented Hispanic immigrants, you have to do more than say, "They acted contrary to statutes!" You have to show actual violence done to someone else's person or property.

Dicey stated that although he was concerned that people might arbitrarily decide to flout just about any sensible statute they disliked, the principle of Rule of Law could not preclude the moral justness of defying particularly repressive statutes:  "No sensible man can refuse to admit that crises occasionally, though very rarely, arise when armed rebellion against unjust and oppressive laws may be morally justifiable. This admission must certainly be made by any reasoner who sympathises with the principles inherited by modern Liberals from the Whigs of 1688."



How Practicing the Rule of Law Would Preclude Treating Undocumented Immigrants Differently from the Native-Born
However, we can also return to the second plank, the one about how the law must apply equally to all residents of the realm. One might try to interpret it as narrowly as saying that government officials must not be held above the laws they enforce on citizens, such as in my example of a governor refusing to prosecute his nephew for the same infraction for which he prosecutes non-relatives. But Dicey's explanation of this plank is not as narrow as that: "It [Rule of Law] means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts..."

If we apply the third plank Dicey mentioned -- prioritizing your right to live peaceably above any statute -- and also apply the second plank, we can see that Dicey's Rule of Law doctrine disapproves of how undocumented immigrants are treated as a different legal class as the other residents of the realm. Recall that the third plank would have the law err on the side of allowing anything that is peaceful, and that because citing statutory law or even constitutions is not sufficient to prove that a party of people must be prosecuted, the Rule-of-Law doctrine would not consider a Mexican immigrating to the USA without a visa to be a sufficient reason for U.S. government action against that Mexican immigrant. However, the fact that undocumented Mexican immigrants are undocumented puts this peaceful group of citizens in a different legal class from other peaceful residents of the realm. The government treats peaceful, undocumented immigrants differently from peaceful native-born Americans. It is discrimination on the part of the State. That therefore violates the second plank of Dicey's Rule-of-Law Doctrine: "equality before the law, or the equal subjection of all classes to the ordinary law of the land..."



The Man Who Popularized “Rule of Law” Explicitly Condemned Statutes That Restricted Migration As Contrary to Rule of Law
Here, the "immigration skeptics" will probably say I am nitpicking. They will say that Dicey was merely advocating that all citizens be treated equally, and that his Rule-of-Law doctrine is inapplicable to resident aliens, as resident aliens are non-citizens. It is therefore instructive to read what Dicey said specifically about immigrants. In the first decade of the twentieth century he denounced a proposed restriction on immigration to England. This was the Aliens Act of 1905. David Glover writes that Dicey "came to see the Aliens Act as just one among a variety of recent laws through which the state was tearing asunder the fabric of personal freedoms..." In Dicey's own words, governmental restriction and regulation of immigration "shows an indifference to that respect for the personal freedom, even of an alien, which may be called the natural individualism of the common law."

In short, "immigration skeptics" are misappropriating a term. In an attempt to undermine support for the freedom of immigration, these right-wing anti-immigrationists invoke a legal doctrine that, from the very beginning, championed what the right-wing anti-immigrationists are trying to destroy.


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Update Notes -- July 14, 2016: Added the quotations about rebellion and rights being the basis rather than the result of the Constitution.  On January 12, 2018, I corrected some grammar and some links, and added the infographic at the top.

Know What's Worse Than Insulting Someone in a Political Argument? Government Force Itself

Stuart K. Hayashi

I sent a pro-immigration tweet to the actor Mark R. Pellegrino, who plays Lucifer on the CW Network's Supernatural.

I typed, "When people whine about Mexicans coming to US w/ gov permission slips, plz show them this doctor:" I meant to type: "When people whine about Mexicans coming to US w/o gov permission slips, plz show them this doctor:" (emphasis added).  I was referring to undocumented immigrants coming to the USA without "government permission slips."  My tweet links to this video about Dr. Alfredo Quinones-Hinojosa, who came to the USA from Mexico illegally as a migrant farm laborer and eventually became a life-saving, world-renowned brain surgeon.

Pellegrino was generous enough to retweet my tweet, and he added his own caption:  "Hey [Donald] Trump. Suck it."

In reply, someone on Twitter lectured Pellegrino to "grow up" based on his "immature comments" concerning Mr. Trump.

Everything else being equal, I would not mind it if, in general, people switched to political rhetoric that was overall less charged, less accusatory, and less altogether insulting. Nonetheless, I think some perspective is in order.

Many impoverished people come to the United States without visas, escaping from drug cartels and kleptocratic governments, and their sole "crime" is the absence of a visa.  And forcibly deporting those people means sending armed men after them.  In comparison, I think Pellegrino telling Trump to "suck it" is quite minor.

Therefore, here is my response: