by Harry Binswanger, Ph.D.
Now that the Arizona immigration-control law is at the Supreme Court, it’s time to analyze that law.
There are two levels: the philosophic level and the level of Constitutional law. Fortunately, they both point to the same conclusion.
The philosophical issue is my main concern. There is no dichotomy between property rights and “human rights”. Just as foreign businessmen have the absolute right to send their products to domestic buyers, foreign individuals have the absolute right to enter the country. If you support free trade, consistency requires supporting free immigration. (But granting citizenship, and the vote, is a different matter; restrictions on that are proper—and should be applied even to natural born citizens.)
And let’s go further: if you abhor the inspection of goods at the border, you should abhor the inspection of men at the border. (The premise of this entire discussion is that we are not at war and not in the midst of an epidemic or other emergency). There is no justification for inspecting parcels or persons at the border. The widespread view that government may properly “inspect for disease and criminal records” is well motivated, but mistaken. The terms of when a person may be inspected by government has nothing to do with whether the person is domestic or foreign, nor whether he is standing at the nation’s border or on the corner of Hollywood and Vine. Police need probable cause (or whatever the legal standard is) in order to interfere with free movement.
There should be no visible border. The border between the U.S. and Mexico (and between the U.S. and Canada) should be exactly like the border between Connecticut and Massachusetts: you see “Welcome to Massachusetts” and otherwise you are unaware of the difference.
A logical error makes some people think a government has the right to exclude, detain, or otherwise interfere with foreigners. The error is confusing the protection of rights and the non-violation of rights. The fact that a government is limited to protecting its citizens’ rights doesn’t mean the government is allowed to violate non-citizens’ rights. The San Diego police are not authorized to enter Tijuana to start protecting Mexican’s rights, but that doesn’t mean it can enslave Tijunans (whether those Tijunans are inside or outside the U.S.).
Back to first principles: the source of government authority is the delegation of rights by the citizenry. A citizen has no right to interfere with the free movement of any individual, foreign or not, so neither does the government. You could not stand at the national, state, or municipal border and demand people stop for inspection, to prove they are not criminals and not diseased. You cannot delegate to the state a right you do not possess.
Notice that, stemming from your right of self-defense, the state certainly does have the authority to detain and inspect—or even imprison—anyone who gives specific evidence of initiating force. Contra anarchism, if a foreigner is brandishing a gun, that is full justification for police action. But that governmental authority applies in exactly the same way to citizens. It is not whether someone is Mexican or American that justifies government action, it is whether he is objectively threatening force.
Collectivism is usually involved in people’s thinking on this subject: xenophobia is a form of collectivism, and that accounts for a lot of the opposition to open immigration; but collectivism in regard to America is often involved—on both the Left and the Right. For example, people will say: “If government didn’t inspect fruits and vegetables coming in from unsanitary places like Mexico, we’d be hit with diseases, which is a form of force.” But no one forces you to buy or eat particular fruits or vegetables: they end up in your mouth by a series of voluntary transactions on the free market. A&P chooses to buy Mexican fruits and vegetables, and you choose to buy them from A&P. It is highly against A&P’s interest to sell tainted produce—from anywhere. (And food poisoning is not contagious.)
Collectivism means viewing this issue as: “Their unsanitary food enters our country.” But it is not “them” and “us”—it is a particular Mexican vendor dealing with a particular American supermarket dealing with a particular citizen. And it’s all voluntary.
Now here’s an example of collectivism from Wednesday’s Wall Street Journal. An editorial on the Arizona law refers to “the authority that Congress bestowed as part of its power to manage the nation’s borders.” There is no such proper power. The relation of Congress to the U.S. border is not the relation of an individual to his property line. Congress does not hold the U.S. as its property. Again, no individual has the right to go to some jurisdictional boundary and use force against people trying to cross it; he can do that at the border of his property (subject to the requirements of objectivity vs. anarchist vigilantism), but it is collectivism to transfer one’s thinking about property lines to border lines.
The border is a line demarcating jurisdiction not ownership. Its function is to tell the government where its authority ends (and to tell the citizen what legal jurisdiction he has entered). The only proper governmental “managing” of our borders, in peacetime, that I can think of is keeping in good repair the “Welcome to America” signs.
The legal-Constitutional side of the Arizona law is something I am not expert on, but given my limited knowledge it seems that the issue is federal vs. state authority regarding immigration. The Constitution gives that authority to the federal government. It is said that all the states are doing is enforcing federal law. E.g., the same Wall Street Journal editorial says:
[Arizona] carefully crafted a state law that is consistent with the federal immigration laws already on the books. All Arizona does is instruct state police to enforce federal immigration laws—for instance, by calling federal officials if a person they arrest can’t verify his legal status. . . . The state is simply using its own resources to execute rules set up by Congress.
These “rules” are themselves wrong, as I showed above. But let’s waive that and try to straighten out the resulting (ultimately irresolvable) mess. In a conflict between the federal government’s interpretation of how its laws should be executed and a states interpretation of that, which body should prevail? Clearly, the federal government’s. I gather that the federal government does not agree with how Arizona is executing federal law. If that’s the case, it’s sufficient grounds for the Supreme Court to void the Arizona law.
What complicates the case here is that not only is the federal law improper, the objections to how Arizona is administering it, from the little I have read, are improper. The objections seem to center around “profiling,” which is a conceptual package-deal. The proper part of the package is: it is wrong to use statistics about groups as evidence regarding the volitional choices of individuals. The improper part of the package is the reverse: it is wrong to ignore evidence about the volitional choices of an individual because he is a member of some group. If one sees a thuggish looking individual engaged in suspicious behavior, that is not to be ignored on the grounds that he is a member of some race. (This is only an indication of how to approach what can be a difficult issue in application.)
Aside from the legal issues, the symbolic meaning of the Arizona law is well understood and transcends the issue of Left vs. Right. The supporters of the law are anti-immigration; the opponents of the law are pro-immigration. As an individualist, I oppose the law.
Dr. Binswanger, a longtime associate of Ayn Rand, is a professor of philosophy at the Objectivist Academic Center of the Ayn Rand Institute. Special Offer: Dr. Binswanger moderates Harry Binswanger’s List (HBL)–an email list for Objectivists for discussing philosophic and cultural issues — a free one-month trial is available at: www.hblist.com.