Judicial deference to the executive branch is uniquely inappropriate when the government seeks to deport or otherwise deprive people of physical liberty.
While styled as an anti-immigrant movement, according to historian Tyler G. Anbinder in his book, Nativism and Slavery: The Northern Know Nothings and the Politics of the 1850s, the American Party (the “Know Nothings”) of the 1850s did not widely advocate laws that would cap the number of immigrants coming to the U.S. Rather, they channeled their anti-immigrant sentiments most directly into policies that would delay citizenship for new immigrants for a number of years (and sometimes even for decades). The delay aimed to provide time to insure a measure of assimilation for new residents prior to citizenship. (Policies also included more pointedly anti-Catholic measures, including denying Catholic schools public funding, temperance laws, and more.)
But why would an anti-immigrant movement overlook what would seem to be the most direct route to reduce unwanted immigration, namely, legally restricting the number of immigrants admitted into the U.S.? It wasn’t until the 1880s that the U.S. adopted the Chinese Exclusion Act, prohibiting immigration of Chinese laborers into the U.S., and not until the 1920s did the U.S. establish quotas on immigration from a broad set of nations. So why not in the 1850s? While Anbinder notes the puzzle, he doesn’t explain the puzzle. (I don’t intend that as a criticism. Anbinder wrote a meticulously researched, highly informative book.)
While the answer could simply be one of pragmatics – the Know Nothings did not think restrictions on immigration could be enforced in the 1850s (although I’m unsure the situation in the 1880s was much different) – I can’t help but wonder whether the Know Nothings, as a self-consciously Americanist movement, believed governments had no power generally to restrict immigration into the U.S., at least in 1850s America. Philosophical antecedents to the natural rights philosophy widely held in antebellum America, and famously expressed in the Declaration of Independence, articulated limitations on the power of governments to restrict immigration, under certain circumstances.
Among other natural rights philosophers, John Locke and Hugo Grotius grounded the starting point for their philosophies in the idea of humanity’s common ownership of the earth. This could be grounded in the Genesis story, but was also something they thought could be justified on the basis of reason.
Locke starts his argument with this initial condition, but moves his argument along quickly, justifying the development and recognition of private property from this initial condition. Importantly, in his theory, private appropriation of parts of the earthly commons was not generally an imposition on anyone else, “at least where there is enough, and as good, left in common for others.” Rather the opposite. Because of the improvement and cultivation of land, Locke observes that private appropriation of the commons greatly expands the resources available to sustain humanity. Private property can expand the natural bounty of the earth. Massively. It need not contract it.
The original condition, however, continued to carry implications even after the rise of private property. Locke, for example, seems to develop an implication of common ownership when he writes in his First Treatise, that the needy have a “right to the surplusage” of another’s goods, “so that it cannot justly be denied him, when his pressing wants call for it.”
Hugo Grotius, focusing more on relations between nations, provides more attention to how the initial condition interacts with otherwise well-established and recognized private property claims as well as with national claims. In a passage pertinent to immigration, at least in the America of the 1850s, Grotius writes in De Jure Belli:
And if there be any waste or barren land within our dominions, that also is to be given to strangers, at their request, or may be lawfully possessed by them, because whatever remains uncultivated, is not to be esteemed property, only so far as concerns jurisdiction, which always continues the right of the ancient people.
By “waste or barren land” Grotius does not simply mean land claimed by a nation but as yet is “unassigned to private persons.” It is unclear where Grotius draws the line between barren or uncultivated land that foreigners might rightly claim and merely unassigned land which a nation might justly exclude foreigners from claiming. Nonetheless, in the 1850s, it is easy to imagine most Americans believing that the country still included a lot of “waste or barren land” that, consistent with America’s founding natural rights philosophy, foreigners could not justly be kept from claiming. (Grotius does consider the claims of indigenous peoples in his work, but that would take us too far afield; I’m only considering the perspective that Know Nothings of the 1850s might have held.)
There are several additional pertinent lines of argument that Grotius develops. But this one is sufficient to motivate the possibility that because of their Americanism, the Know Nothings might have focused their legislative efforts on policies they thought would promote the assimilation of immigrants into American culture rather than on policies that would exclude immigrants from arriving on American shores.
To be sure, this solution to the puzzle of how the Know Nothings could hold strong anti-immigration sentiments yet not advocate restrictions on immigration into the U.S. is pure speculation on my part. Further, this solution to the puzzle would require an uncommonly high commitment to American principles over Americanist preferences on the part of the Know Nothings.
A lot more can be said about the implications of Locke’s and Grotius’s (and other natural rights philosophers’) commitment to the idea of humanity’s original, common ownership of the earth. Of immediate interest is their belief that, under certain circumstances, the original position limits what, consistent with natural law, even fully sovereign nations can regulate with respect to immigration.
So what, if any of Grotius’s thinking in this area, applies to today’s immigration debates depends in large measure on what those “certain conditions” might be. The human geography of the U.S. of the 2010s is obviously not the same as the U.S. of the 1850s. That said, while Grotius focuses on land use, and it is only the earth that is granted in common to humanity, so unproductive “waste or barren land” is simply about land use itself, one might wonder, for example, whether an intuition supporting, say, the H-1B visa might share a bit of Grotius’s argument here. To wit, if there are insufficient numbers of U.S. workers for specialized positions in industry, then there is, as it were, unrealized domestic production in those areas. This could be akin to the “waste or barrenness” of unemployed land. (I do realize that whether there are in fact insufficient numbers of trained U.S. workers in these areas is contested. I’m simply considering the case of the claims supporting the H-1B visas being in fact true.) Of course, a salaried job, even if unfillable, differs from an unused piece of land, which is given in common to all humanity and might be appropriated by anyone under the right conditions. Still, the commonly articulated view that these private industry jobs are nonetheless in some sense “our jobs,” i.e., that they are in some important sense jobs that are socially owned by the nation as a whole, then perhaps thinking of them as a commons is more plausible than it may originally seem. Just a thought.
In any event, Grotius articulates additional limitations on what, consistent with natural rights, sovereign nations may do by way of excluding “strangers” from entering their borders. I’d like to consider some of his other claims in the future.