Immigration, Positive Law, and Liberty

James over at the Right On! blog recently read and responded to
a post I wrote the other day in which I took him and others to task for their anti-liberty positions. In his case, he is a very strong believer that the State has, and should have, the legitimate authority over where individuals are able to live and work, and with whom they may peacefully associate. Furthermore, it is very clear to me that there is a part to this position that involves racial biases. He left the following comment in that post:

Why don't you just come right out with it Jason... CALL ME A RACIST.

You're so caught up in your borderless crusade that you fail to notice that ILLEGAL IMMIGRATION has no color. You're an illegal immigrant no matter WHAT your nationality if you sneak into this country against our laws.

If you had wandered into the US, you too would be an illegal alien and you too would be on the wrong side of me. I could care less if your brown, red, white, green or black.

I love it when "people like you" lump people into groups to suit a need.

It's entirely possible James is not a racist...but it's very hard to ascertain from listening to your average Joe who is angered by the immigration issue that there is not a race component involved. Many observers have noted the close ties anti-immigration groups like the Minutemen have had with white supremacist groups. Furthermore, I am personal friends with a number of Canadians who tell me that they have had people tell them straight out that they’re “ok”, with strong insinuations that it was because they are white and speak perfect English. The anti-immigration movement does have, to one degree or another, a racist component to it. It’s just dishonest to say otherwise.

As far as who constitutes an "illegal" immigrant, I think James is wrong for a variety of reasons. To say something is illegal is to reference some sort of legal framework as a starting point. If one is referring to the concept of natural law, then the idea of immigration being "illegal" becomes an absurdity. If we are to accept the idea that we are endowed with natural rights (i.e. From our Creator, or as essential component of our natures, or whichever view you are inclined to take) then certainly moving from point A to point B falls into this category. This applies whether someone is moving from Main Street to Park Avenue, from Ohio to Indiana, and yes, even from Mexico to the United States.

Ahh…but moving from Mexico to the US is different, someone might say. The reason is that the government of the US has made a law saying that you need to get permission first before crossing into the territory claimed by that government as its turf. This is what’s known as “positive law”, or law that is essentially decreed to be so by the political class. It is this view of “the law” that James and other Anti-Immigrants hold up as their standard for gauging one’s “legal” status. If you behave in a way that is contrary to the wishes of some other people who also claim the right to use violent force to achieve their goals (we’ll call them politicians, or the State), then you are violating the law, and should be punished. Morality and justice are functions of the arbitrary dictates of those with power. Literally, might makes right.

This has some frightening implications. Under positive law, if one were to be asked the question, if this were 1850, and the Fugitive Slave Laws (ironically, our country’s first immigration laws) were in effect, would you rail for stronger enforcement of controlling the Underground Railroad, and advocating the punishment of those noble souls who provided assistance to runaway slaves? To the positivist, the only answer is a strong, table-pounding “yes!” Why? Because the rule of (positive) law should be respected at all costs. Even if that law is shockingly immoral, the obligation of everyone is to obey, even in violation of his or her conscience, until the law can be changed. Meanwhile, slaves are returned to their masters, Jews are shoveled into ovens, wars are fought, sick people suffer and die, and many, many other tragedies large and small are perpetuated.

I need not say anymore about how intellectually lazy the positivist is. Relying simply on what the politicians say to be just and proper eliminates the need for one to engage in serious moral and philosophical reflection. Instead, the slogan “obey the law!” is embraced like a flotation device, without which, these types feel our country would literally drown and be destroyed.

The only kinds of laws that should be obeyed are ones that are rooted in natural law, and conform to the laws of morality and justice. The Anti-Immigration Crowd, in addition to being thoroughly statist in principle, demands respect for laws that violate natural human rights to private property and free association. They do this by trying to claim that the country is one big piece of property, owned collectively, and has its wishes expressed through the State. Individual property owners are secondary. Correct me if I’m wrong, but isn’t that similar to communism?

So the next time you talk to an Anti-Immigrant, ask them what they think should happen to you, as a “free American”, were you to choose to hire or rent to an unapproved Mexican? Ask them how they can say you are “free”, but yet must conform to the demands of the collective, only able to do things that you have been given permission to do? Ask them, in short, what the difference between a right and a privilege is.

Their answer will tell you how committed they are to liberty.