To set the stage for a fuller discussion of immigration, I want to start by asking, what is an illegal immigrant?
Ponder for a moment: at what point does immigration become illegal? Say a man is standing just south of the border, and someone tells him, “we have a law that says, only American citizens are permitted on this land.”
Him: but your law only applies to people in your country, which I am not. Therefore, your law can’t apply to me.
I think his logic is faultless.
This simple thought-experiment already shows that there is something wrong with the logic of “illegal immigration.” But let’s continue:
American: OK I see your point; but then we have the right to set up a barrier to prevent you from coming in.
Him: Do it then.
So, perhaps a country has the “right” to build a big fence all around its border to keep outsiders out. City-states from ancient times until about 1800 did this, with gate-keepers keeping watch. (Think Jericho. The opera La Bohème depicts such a gate in Paris in the 1800’s.)
But such a right of exclusionary force has to do with our activity, not that of the man south of the border. Why does he get tagged with the label “illegal”?
Perhaps someone grants that the jurisdiction of US law does not extend into other territories; but once the hypothetical alien crosses the border into our territory, then he is subject to the law against aliens. Let’s follow it through.
The man south of the border is not subject to US law. He decides to “hop” over the border. Now he is in US territory, which has a law that says, “you can’t be here.”
Let’s consider the case that such a law is meaningful, valid.
So the man, being a law-abiding Christian, obeys it. He hops back over, to south of the border.
Now he is no longer subject to the US law. So, he hops northward over the border. Doing so is not illegal according to Mexican law.
But now he is subject to US law. He must hop back.
Hop. Hop. Hop.
This is a perfect illustration of dialectic.
Whenever dialectic is inescapable, it shows a wrong turn has been taken somewhere.
Let’s examine the form of the law, “you can’t be here.”
Him: but I am here.
His logic is sound.
Perhaps the law is ambiguous around the word, “can’t.” Can with regard to ability, versus can with regard to right.
Every question of right has an implied answer to another question: “or what?”
A law regarding illegal immigration has to be something that applies to us—what we can do, should not do, or ought to do. It can’t deal directly with this abstracted person that is not even subject to our law.
So, I suppose we have reached rock bottom finally. The question, “who is an illegal alien?” is answered by, “someone that does not have papers, whom we therefore have the right to put on a train.”
TJH:
How would your analysis affect ordinar trespass?
Is the law (the historical, common law) simply that once you are on Tim’s land you must hop off, or is the law that you cannot enter his land without permission in the first place?
How, also, would it affect the actions that South Carolina took many years ago to expel unwanted foreigners from her borders?
Surely the answers are that entry itself is wrong, and it wrongs the land-owner as does the overstay. Even so, entering the U.S. without permission is a wrong against the U.S., and staying when you lack permission to stay is a wrong against the country. And a country, even if that country is South Carolina, has a right to use the power of the sword to address this wrong, just as private landowners have a right to call upon the state’s power of the sword to enforce their exclusionary rights.
-Turretinfan
This makes sense to me (but I’m not the one being addressed!)
TF — you may be on to a good model for how to think about the situation, with the analogy to property rights. Here’s my first question — can you universalize this principle without making the government the joint owner of all property?
Dear Tim,
I’m not sure what you mean by “universalize” here, nor what you mean by making the government a joint owner.
I sense, though, that you are on to something, namely that the government has umbrella rights/responsibilities over “its” terratory.
The rights that the American government has with respect to your land are not the same as your own, but it does have certain rights.
One right that it has, and that the Bill of Rights recognized that it has, is the right to purchase your land whether or not you want to sell it.
It can search your land, it can remove people and items from your land, it can tax your land, and so on and so forth.
In America, the government’s rights with respect to your land are not unqualified, even though they may be headed that way. For example, it can buy your land regardless of your will, but can only do so for a “public” purpose.
But analyzing the American realities is messy.
I think the easiest way to analyze the problem is to start from an intuitive scenario in which the sovereign is absolute, in which case we the people are but tenants at the whim of the sovereign and the sovereign is the owner, and then work backward to a real-world scenario like the U.S.
-Turretinfan
Sorry, this article is just silly. I hope you were having a bad or rushed day. In form it is no better than a 15 year old dope smoker mocking drug laws. For example:
Let’s examine the form of the law, “you can’t be here.”
Him: but I am here.
His logic is sound.
WHAT? You equivocate on the word can’t, in which it means “may not according to law” to the speaker and “it is physically impossible for you to be here” by the listener. Yet you say his logic is sound?
You may agree or disagree with immigration laws, but the parallels between crossing the border and theft/trespassing are pretty apparent and accurate. So much so, that to mock anti-immigration laws (at least in the way you have done) is to mock personal property laws. The immigrant steals the rights, privileges, and blessings of a land that does not belong to him, and from which he is forbidden by the owners.
mkm -
Mocking and posing a question in an unconventional way are two different things. I find no mockery in this post.
Your problem seems to be, being unable to look at a problem from a perspective that has never before been considered. This is a feminine way of thinking, as Wotan pointed out to Fricka. My colleague may be wrong, but you have not even touched his argument. Indeed, I don’t think you understand what he is getting at.
TF — It seems like on the model of “trespass” per se the distinction of “alien” (vs any other non-alien trespasser) disappears unless you bring in a “Sovereign” as the only real and ultimate landowner, and who is able to identify his subjects, and desires non-subjects not to enter.
In the OT, you could say that Jehovah was the Sovereign land-owner of Canaan; but then he gave title to the tribes and clans by lottery. For many years, there was no human that could have even made the claim of ultimate cogerent ownership. But even in the time of the kings, this appears not to have been asserted. Think of the problem Ahab had trying to get Naboth’s vineyard.
Dear Tim,
Interesting points. Yes, Israel had particular, divinely established land distribution rules that prevented people from permanently transferring their title to the land. (In contrast, total ownership of Egypt was procured for the Pharaoh by the wisdom of Joseph, Genesis 47:20.)
Nevertheless, law against “alien” trespass were known (and enforced) even before entry into the promised land. Recall how some of the nations refused passage to the nation of Israel through their borders when they were on their journey to Canaan (see Numbers 20:17, 21:22, and context, for example)
Recall also that Egypt is described as having “borders” Genesis 47:21, and Philistia (Joshua 13:2) and Canaan too (Exodus 16:35). God promised to make the borders of Israel larger (Exodus 34:24).
Recall also the sense of national trespass conveyed in Micah 5:6 by the idea that the enemy treaded within their national boundaries.
But I think that you are more concerned with how we can justify exclusionary laws philosophically than historically, yes?
-Turretinfan
TF — but you’re missing the point in a big way. My point is to show a divinely authorized national arrangement which did not involve a magistrate owning all the land; therefore it falsifies any universal which says that that is the only ideal concept of land ownership.
Mere historical occurance is not the point at all.
Dear Tim,
Although I am a theonomist, I’m inclined to lump Israel’s inalienable right of inheritance in with other ceremonial laws, as shadowing the elect’s inalienable God-preordained inheritance.
Thus, I’m not much more inclined to view it as an “ideal concept of land ownership,” than I would view “pork abstension” as an ideal concept of dietary practice, and I would view the rending of the veil as marking the end of Israel’s inalienable land rights (with its ordinary land rights being terminated by conquest).
But isn’t that a tangent?
Isn’t the real question whether there is a sense in which every government has some land rights? Even Ahab had the right to go onto a man’s land to arrest that man as a criminal, yes?
-Turretinfan
No where did I appeal to a theonomic principle. I appeal to the proposition, “if God ordains X, then even if X is not normative in all times and places, still X is not evil.”
So… while the trespass-on-private property seemed promising as a model to explain “illegal immigrant,” it fails because
1. It only distinguishes alien from non-alien if the State (or Sovereign) is the ultimate owner of everything, and this is neither normative nor actually the case.
2. As to real property owners, some may complain of trespass, others might not. This is a contingency.
Moreover, in point of actual fact, the meaning of a law includes its intent to enforce and convict. Are all Americans “law-breakers” because we all exceed the speed limit? Now here, we have a situation where one sign at the border says “do not enter” while another one says, as it were, “but if you do, ‘this way’ for free medical care, and ‘that way’ for free education.” Can anyone blame a Mexican for counting that as an invitation, and coming on over?
Dear Tim,
a) I don’t know how you think you’ve proved the first half of (1), particularly the “only.” I see that you asserted it, but it does not appear to follow from anything. Maybe I overlooked a comment somewhere.
a1) And the rebuttal is that land rights are separable.
a2) I wonder how your appealled-to principle would apply to the way that the Israelites obtained their land. In other words, is conquest and genocide, while not normative, acceptable? If you will (with most people) view it as an exception because God specifically ordered that invasion and slaughter, the same could be equally argued of the Israeli land rules.
c) As for your “moreover,” yes, obviously we can and do blame them for counting that as an invitation.
c1) The analogy that proves that such is proper, even though your analysis is tempting, is Paul’s discussion regarding our continued duty to obey the moral law, even though we are not condemned by the law, because Christ is our substitute. Indeed, when we break the law, good comes of it, but we are still required not to break the law.
c2)The law is “do not enter.” It’s a clear law, and the reason that illegals sneak across the border rather than taking a highway is because they are aware of the illegality of their activity.
-Turretinfan
TF — as far as you know, is it illegal in all 50 states to invite an “illegal alien” over to your house for tea?
I suppose one could argue that it is somehow aiding and abetting (or soliciting) their continued violation of federal immigration law, and thus an accessory violation of that law.
Otherwise, no, I think it is just as legal as inviting a convicted felon who is presently serving a life sentence over to your house for tea.
It is a cruel joke, but it is not specifically prohibited.
-Turretinfan
Well, I’ll take that as a no.
Do you agree then that as a matter of historical fact, the law against illegal immigration (whatever it is) is not modeled as the government trumping individual property rights and declaring all non-citizens on anyone’s property to be trespassing?
(I’ll get to the ideal case later.)
I’m not sure why you take that as a “no,” but if my entire answers must be reduced to monosyllabic affirmations or denials, then you should probably take this one as a “no” to your number 16.
If, however, you want more meat than that, perhaps you could explain your question, because its negative wording and complexity making it hard to affirm.
I’m not even sure we are on the same page.
I’m talking about us, as philosophers, modeling the legal system in order to understand it.
We could, alternatively, talk about how the legal system developed, and whether historically such a model was relied upon. We could also show the historical acceptance of exclusionary immigration laws. I suppose we could even ask what the founders took as a model when writing the laws of the United States (answer, they mostly looked to the English tradition).
But what you are asking is not something readily comprehensible, perhaps because of the wording.
Could you rephrase?
-Turretinfan
(sigh)
Your proper response, TF, is this: “yes, Tim, I grant that today, the US govt’s definition of, and case against illegal immigrants is not that they have committed trespass against private property. Now, I am ready to move into the theoretical discussion of what should be the case.”
Dear Tim:
I can fully agree with this part:
Nor do I think that such should be the case.
-Turretinfan
That’s it. I’m not going to keep playing this game of deflection and evasion. TF, you are either too smart for me, or you are just someone that takes perverse pleasure in little intellectual games of negation and evasion. I’ll let each of our readers judge for himself.
I’ll tell you what. Fully explain and defend your theory of “magistrate’s property rights” or whatever it is you are putting forth ON YOUR OWN BLOG, and then I will permit you to post a link to it here. Apart from that, you are banned from further posts on this thread. I don’t have two hours a day to spend playing a guessing game with you. And I don’t want to subject our readers to it either.
I see I over-reacted again. Ban lifted; my apologies. I’ll try to get to your questions over the holiday.
Dear Tim,
Thank you for the courtesy. I apologize for the indirectness of my responses. As you requested, here is a post on my blog that tries to summarize what I am attempting to convey.
Perhaps it will be useful to you in seeing where I am coming from.
http://turretinfan.blogspot.com/2007/05/sovereignty-as-applied-to-land.html
I don’t think its going to answer your questions above regarding where this goes when one tries to “universalize” the issue, but perhaps it is because I’m not sure which direction you are seeking to universalize.
However, I may well be suffering from the affliction of not knowing where you are going with this discussion. I’m not even sure whether you trying define immigration laws more precisely, to strengthen them, or to oppose them.
Maybe you are simply trying to point out that a law must not only prohibit behavior, but also assign punishment.
Maybe you are simply trying to point out that an encampment of Mexicans with swim trunks on the far bank of the Rio Grande are not illegal aliens yet, because they haven’t violated the law yet.
But perhaps after a relaxing Memorial Day, you may have to clarify and (quite likely) disabuse me of my misunderstandings as to what you wrote and meant.
Until then, may God’s blessing rest on you, brother,
-Turretinfan
TF: I was setting out to restate my cryptic points, but soon realized (especially after seeing your own post) that we may not have the same concept of the point at issue.
At this point the discussion is not whether the magistrate can keep aliens out, but whether that right derives from ownership of property; whether the act of forbidding entry to an alien is exactly the same as (a) asserting ownership of all the property and (b) forbidding a certain class of persons to enter that property (i.e. traspass).
So, for example, your assertion that the right to keep people out has always been recognized, from ancient times, though debatable in its own right, is off target– the question is, was that right recognized as being equivalent to property right.
So, before restating the steps in the argument, I want to make sure we are on the same page as to what the thesis to be argued for and against actually is.
Dear Tim,
The short answer is “no, not exactly the same, yet the comparison is helpful” but hopefully, the more detailed response below will be useful in avoiding misunderstanding.
Ownership vs. Rights
Note that I view property rights as a divisible bundle, such that you and I could contract together for me to have the right to exclude oxen (to take a non-controversial example) from your land, while you would maintain ownership (as that term is used in common parlance) of the land.
State’s Rights in Land not Actually Result of Contract
Now, despite what Locke may think, the State’s rights with respect to our land is not the result of us contracting away those rights to the State (in a “social contract”), even if that is a useful model.
States are Commonly Said to Own the Land
Nevertheless, with that clarification, getting back to your question, there are certainly senses in which the state is said to “own” land. Thus, for example, the United States obtained ownership of much of the West by purchase from France and by conquest from Mexico. Likewise, ownership of Alaska was obtained by purchase from Russia. And we could go on and on.
The Examples above Included at least Some Privately Owned Land
As I recall, while most of the affected land was largely uninhabited, or inhabited by what were considered savages, at least in the Louisiana Purchase, some populated cities were included within the purchase.
So, perhaps the right to exclude aliens is derivable from property right principles.
Return to your Question
Nevertheless, you asked the more narrow question, whether “that right derives from ownership of property” by which you mean: “whether the act of forbidding entry to an alien is exactly the same as (a) asserting ownership of all the property and (b) forbidding a certain class of persons to enter that property (i.e. traspass).”
Response: No, not Exactly the Same
To that I would respond that although it is conventional to speak of the state owning all of the land (in contrast to other states owning the land), state “ownership” is not exactly the same as personal “ownership” in societies like America.
Yet the Comparison is Helpful
Nevertheless, despite the differences, I think trespass may be a useful analogy. In other words, while it may not be exactly the same, it is close enough to make the analogy useful and intuitive.
I hope that this response is helpful, even if not to persuade of you my position, to help identify where I am coming from.
-Turretinfan