How Immigration Can Restrict and Enhance Liberty

An argument for letting in more newcomers—and a warning about a potential pitfall


Recent items at the Volokh Conspiracy, the exceptional legal blog now published by the Washington Post, offer two perspectives on immigration policy that deserve wider attention before various policy changes are next considered by Congress. Taken together, the items urge policymakers to reflect on the underappreciated ways that immigration policy touches on questions of individual liberty.

Eugene Volokh, who generally favors higher levels of legal immigration, focuses on instances when that policy could bring about restrictions on individual liberty. He cites a court case in which high-school students were forbidden from wearing American flags to school on Cinco de Mayo on the theory that it would be perceived as a provocation to immigrant students who might retaliate with violence. "If letting in immigrants leaves us as free as we ever were, that’s great," he writes. "But the more it means our liberty must be restricted to accommodate immigrants—and even their descendants—the more we should worry about immigration ..."

Whether or not people should factor this into their support for mass immigration—I tend to agree that "we should rightly value liberty highly"—it will be a factor. Gay citizens of a small country like Amsterdam are going to favor the immigration of religious conservatives only insofar as they think any resulting demographic shift is compatible with their ongoing ability to enjoy equal marriage rights. Support for more guest workers in the United States will decrease insofar as women in directly affected communities perceive that it will make them less free as a concentrated population of young, single men leads to more street harassment.

Insofar as proponents of mass immigration can mitigate such concerns, they're more likely to win support for their preferred policies among the population at large.

Meanwhile, Ilya Somin, who agrees that "immigration policy decisions should take account of the full costs and benefits of letting in more people, including the danger that increased immigration might reduce the quality of government policy by increasing welfare spending or causing new restrictions on our freedoms," rightly argues that immigration restrictions diminish liberty in significant, underappreciated ways, especially if one treats would-be immigrants as people.

"For many current and potential immigrants, denying them entry or deporting them once they have arrived means consigning them to a life of poverty and oppression in Third World countries. That is a very severe harm indeed. It is also a serious infringement on their liberty," he writes. "Freedom of movement is itself an important aspect of liberty, as is the freedom to seek jobs from willing employers or rent homes from willing landlords. To the extent that many of those who wish to hire immigrants or rent to them are American citizens, immigration restrictions infringe their liberty too, not just those of the immigrants themselves."

Particularly important is his emphasis on what immigration restrictions actually entail:

One can argue that the US government is not responsible for the poverty and oppression that exists in Third World countries, and therefore we have no moral obligation to let in immigrants fleeing from it. But when we restrict immigration, we do more than simply ignore poverty and oppression created by others. We actively use force to prevent immigrants from escaping those terrible conditions—even in cases where there are Americans who are perfectly willing to engage in voluntary transactions with those migrants, by hiring them for jobs or letting them rent housing. The US government in the 1930s was not responsible for the oppression of Jews in Nazi Germany. But it was responsible for using the threat of force to deny many of them an opportunity to escape that oppression by coming to America.

"If we realize that immigrants are people too, we should set an appropriately high burden of proof before we decide to use force to consign them to lives of poverty and oppression," Somin later concludes. "At the very least, we should demand proof that the claimed harm really exists, cannot be avoided by less draconian means, and is great enough to justify imposing severe infringements on liberty."

That sounds like the right standard to me. There isn't, I don't think, an absolute right to immigration, but America could permit more people to immigrate legally than it does today—and legalize the status of illegal immigrants already here—without bearing costs that justify severe infringements on liberty. In fact, as I've previously argued, odds are that when your ancestors came to this country, the burdens their arrival imposed on the folks already here was many times greater than anything Americans face today. The Europeans who initially came to this continent spread diseases that wiped out Native American populations—and the ones who survived disease were often kicked off their land or brutally killed. People of Irish or German ancestry who complain that their cities are overcrowded today should read about New York City tenements during the biggest waves of immigration. Are you worried about violent immigrant gangs like MS-13? So am I, but it's doubtful that any imported criminal organization will prove more burdensome than the Italian mafia or the organized-crime families that exist in many other ethnic groups that immigrated to U.S. 

Name any problem associated with immigration today, and odds are it was much worse at some point in the American past—and our ancestors grappled with those problems despite living in a country many times poorer than the America of today. Unless you're a Native American, fairness would seem to demand that you don't favor restrictionist immigration policies that, were they in place when your ancestors came, would've prevented their arrival and your status as an American. That past immigration conferred huge benefits too only strengthens the case.