The Unethical Nature of Current Immigration Laws: Ayn Rand’s Theory of Rights contra Current Immigration Rhetoric

By guest blogger Andrew Ryanbill-of-rights

In this heavily-charged political atmosphere, the issue of immigration once again  Is at the forefront of political discourse. Candidates sharpen their campaign strategies, seeking to align their positions with the most popular and crowd-pleasing platform. Second only, perhaps, to marriage, no other subject has provided so much discourse, controversy and disagreements than that of the immigrant and his or her place in America. As it is usually common in times of economic frailty or recession, general sentiment has recently turned against the role of immigration as a whole, with candidates of either party making certain that they are not too welcoming or friendly to the idea of immigrants.

Several pieces of legislation have come and gone over the years seeking to address ‘the immigrant situation’, and yet the issue has never properly been addressed on the grounds of ethics. No single politician has asked what is the proper immigration policy for America? Politicians have ignored all ethical discourse and have remained ensconced in pragmatism- the results of which have created a baroque and overcomplicated immigration policy that violates the rights of all parties. The answers to the questions not yet posed by legislature are contained within the ethical theory of Ayn Rand’s Objectivism.

How does, then, a proper application of the Objectivist ethics look like in the realm of immigration? Firstly, we must understand the origin of Rand’s stance on rights, and look at the present state of immigration policy as it is. From there, we will then apply an Objectivist critique and proposal to solve the issue at hand, and finally address common objections to an Objectivist Ethics proposal.

As Craig Biddle writes in his article, “Ayn Rand's Theory of Rights”, “Rand discovered that an organism’s life is its ultimate value and thus its standard of value—the standard by which all of its other values and actions are to be evaluated. A tree’s standard of value is the requirements of its life as set by its nature. A tiger’s standard of value is the requirements of its life as set by its nature. And a man’s standard of value is the requirements of his life as set by his nature. Ayn Rand’s ethical theory rests exclusively upon the rights of the individual as necessary to his existence, as only life makes values possible. The pursuit of those values, Rand argues, must be done from a rational position, to determine what is the individual’s rational self-interest (this, unlike many of Rand’s opponents believe, does not discard emotions as unnecessary, but the issue of emotional integration is outside of the scope of this paper) and how to best go about in its pursuit. From the metaphysically given fact that existence makes the pursuit of values possible, Rand explains in “The Objectivist Ethics” that

“Metaphysically, life is the only phenomenon that is an end in itself: a value gained and kept by a constant process of action. Epistemologically, the concept of “value” is genetically dependent upon and derived from the antecedent concept of “life.” To speak of “value” as apart from “life” is worse than a contradiction in terms. “It is only the concept of ‘Life’ that makes the concept of ‘Value’ possible.” (18)

Making the concept of value a concept dependant exclusively of the concept of life, Rand sets up life as the standard of all moral value. This value is not exclusive of one individual or a collective, but rather it is an intrinsic property of each individual, in accordance with the metaphysical nature of a human- and so the violation of those metaphysically-necessary values against one individual by another was an act of immorality. In order to protect those values, and by the necessity of the nature of a man or woman’s existence, Rand points to the concept of rights as an acting principle that stands in the protection of these values, especially when establishing a context in which an individual is to interact with others. To quote Rand:

“Rights” are a moral concept—the concept that provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others—the concept that preserves and protects individual morality in a social context—the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law. (108.)

The principle of rights essentially define and protect an individual’s freedom in society, affirming his nature as an entity for whom the pursuit of values is not only necessary, but vital. Rand’s moral theory, unlike other moral theories, does not hold that the reward of morality is morality itself or some floating abstraction, but rather that the reward of morality is life itself – the ability for the individual to prolong his own life and to thrive, provided it is done morally (Rand, for example, holds that thriving through the imposition of force on others, or violating their rights and property, is immoral- it undermines the basic principles that make any value possible.)

The principle of rights, therefore, takes shape in Rand’s philosophy as the right that an individual has to be protected from the acts of coercive force. Coercive force is defined as any act impinging upon an individual’s right to his life or his property. Explicitly laying down the principle, Rand states that

“The basic political principle of the Objectivist ethics is: no man may initiate the use of physical force against others. No man—or group or society or government—has the right to assume the role of a criminal and initiate the use of physical compulsion against any man. Men have the right to use physical force only in retaliation and only against those who initiate its use. The ethical principle involved is simple and clear-cut: it is the difference between murder and self-defense. A holdup man seeks to gain a value, wealth, by killing his victim; the victim does not grow richer by killing a holdup man. The principle is: no man may obtain any values from others by resorting to physical force.” (32)

Under the present immigration system, immigrants wishing to make their way in the United States face enormous obstacles: decades of baroque legislation have transformed what once was a relaxed immigration system into a veritable maze that only few are able to navigate successfully. Employers seeking to sponsor a foreign national for a work visa must, for example, invest around $7,000 in paperwork and legal fees to start the process. (U.S. Department of State) The following step consists of the potential employee being entered into a “lottery” in order to compete for one of the coveted visas- of which only 65,000 are granted a year by the government (should the employee be unlucky enough not to get a visa during the random lottery, his employer cannot recover the money invested). Should he be fortunate enough to secure one of the coveted visas, he must still wait six months before allowed to work for the employer. While the H-1B visa process is only one of many different processes and visas available in the immigration system, they all follow similar procedures and principle.

Analyzing the unethical nature of current immigration policy, Objectivist philosopher Dr. Harry Binswanger points out that citizenship or residence with a country is not necessary in order to, as individuals, enjoy a moral entitlement “to be secure from governmental coercion against one's life, liberty, and property. In the words of the Declaration of Independence, government is instituted "to secure these rights"—to protect them against their violation by force or fraud(Binswanger, “On Open Immigration”, The Harry Binswanger List), this moral entitlement is not granted by nationality, but by the metaphysical nature of being human. Yet the existence of the specific requirements of these visa programs and caps (only a certain number of visas are allotted each year, by category and country) essentially criminalizes any foreigner who is not lucky enough to be favored in the green card lottery (a random lottery, again restricted by country, with a limited number of green card winners.)

How is this criminalization unethical? The sole act of requiring the granting of a work visa so that an American citizen may hire a foreigner is a violation of the most basic rights of both parties involved. The American employer, as owner of his business, has the full right to determine who is best suited to work for him or her, under his own standards as a business owner. The government intervention, however, violates that right: the law sets a series of standards, government-mandated standards, that he must meet as an employer (how much he must pay for salary, how much he must have advertised to Americans without success before hiring a foreigner is preferable) and that the foreigner must meet as a prospective employee (level of qualification for the job at hand, even if the employer does not regard degrees as pertinent)- these are third-party impositions that are involuntarily forced upon what otherwise would be a simple transaction between free-acting individuals. The element of coercive force is evident: Should the employer refuse to follow the standards the government has chosen for him and simply hire whom he thinks is the best employee (in this case, a foreigner) without the circuitous process that takes up to half a year, then the act is deemed “illegal” and carries the penalty of fines, prison (for employers) , deportation and blacklisting (for the employee.) If the employer has a right to his property, by what principle is he not allowed to exercise it when the exercise thereof causes no violations of rights? The simple answer is: No such principle can exist and still remain concomitant with the right to life, they cannot exist in the same ethical structure because what one grants, the other denies.

There exists, therefore, no right nor principle that can prevent an individual from entering freely into a transaction, as long as such transaction does not prove to be a violation of rights. Is there, then, a violation of rights that happens upon hiring a foreigner? The act of hiring an individual, specifically a native-born citizen, is not illegal. Then, what is the element that turns the transaction illicit? Nationality? By what process does simply having a nationality become immoral and illegal? Binswanger illustrates the fallacy of this in his example:

“If I want to invite my Norwegian friend Klaus to live in my home, either as a guest or as a paying tenant, what right does our government have to stop Klaus and me? To be a Norwegian is not to be a criminal. And if some American business wants to hire Klaus, what right does our government have to interfere?” (Binswanger, On Open Immigration).

Binswanger indicates that the premise at work in these situations is that ‘we’ have a right to restrict who comes into ‘our’ country. Notice the ambiguous ‘we’- what is the definition of this ‘we’? American soil is under no collective ownership- were it so, it would be abolish the individual’s right life and property, for property that belongs to one individual and to all individuals is a paradox- akin to belonging to everybody and nobody at all- and life is unsustainable without property, the ability to dispose of the fruits of one’s efforts in accordance with our best judgment. While an individual has the right to bar access into the boundaries of his property, he does not have the same right outside of those boundaries. The immigrant exists under the same principles of value-from-life as the native of any nation does, and his rights are not subverted by any appeal to collective ownership of land, which is a fallacious appeal to begin with.

One of the common objections to immigration takes different guises: that immigrants lower the quality of life of native-born Americans, that they bring crime, harm the economy, and similar. Immigrants, the arguments go, lower the quality of life of Americans by “taking jobs away” from Americans. The issues with this argument are plain to see at once—if we assume that there is some entitlement to work (there isn’t), then yes, immigrants would be infringing that entitlement. But the elephant in the room is the question that follows the previous assertion: If immigrants harm Americans by “taking away their jobs” – what do the proponents of these objections plan to do about the Americans who “take away the jobs” of other Americans? If every American citizen is entitled to a job, then it means that for every American citizen who is accepted into a company, all of the other applicants have been harmed by being denied the job to which they were “entitled.” Are we, then, to use the same penalties for every American citizen that is hired to a job, because of the ‘harm’ he brought to the other candidates? Of course not, and opponents of immigration would reject that argument outright- but the truth remains that it is an argument that is the direct and logical conclusion of their premises. The cornerstone of that particular guise of the argument rests on the principle of work entitlement. But are we truly ‘entitled to a job’?

A right to a job (or right-to-work) implies that a job must be guaranteed to every individual. Rights, in the legal sense of the word, must be enforced and protected by a government, one of its legitimate functions. How would government enforce this right-to-work, if not by using its legislative and coercive force to make individuals hire other individuals- whether they wish so or not. It is not an altogether strange idea, since current immigration laws forbid individuals from hiring individuals they do wish to employ. This argument, then, is fallacious. As are all other arguments listed so far, since they fall under the category of collective claim. Immigrants should be left out because they might be criminals? What about the American citizens who are criminals, why is their right to be in the country not revoked? Why is potentiality punished, rather than actual action? The answer is the same as to the right-to-work issue: There is no such principle at work, nor can there ever be one.

All arguments against immigration have one thing in common: a collective claim to some sort of ‘quality of life’ which is somehow harmed by immigrants. The invalidity of that argument was addressed by Ayn Rand in her Question and Answer period in the 1973 Ford Hall Lecture:

“No one has the right to pursue his self-interest by law or by force, which is what you’re suggesting [with closing the borders and impede immigration]. You want to forbid immigration on the grounds that it lowers your standards of living—which isn’t true, though if it were true, you’d still have no right to close the borders. You’re not entitled to any ‘self interest’ that injures others, especially when you can’t prove that open immigration affects your self interest. You can’t claim that anything others may do—for example, simply through competition—is against your self interest. But above all, aren’t you dropping a personal context? How could I advocate restricting immigration when I wouldn’t be alive today if our borders had been closed?”

Rand attacked the core of the argument. It is very easy to see that the argument of restricting immigrants because they allegedly affect someone’s “quality of life” could easily be turned against other individuals who allegedly impinge upon someone’s “quality of life” - specifically the group of individuals who can easily be outvoted: minorities (these are exactly the same arguments used against gay marriage today, and which were used against integrated classrooms, marriages, etcetera.) One of Rand’s constant reminders was that the proper role of government was to protect the minority from the tyrannies of a majority- and that the smallest majority was the individual.

The penultimate opposition to open immigration, and in particular the pardoning of illegal immigrants, falls along the appeal to the Rule of Law. Even though immigration laws have become so obtuse as to be almost unmanageable, and even though it restricts liberties and freedoms without basis, and even though the process, as has been mentioned, violates the rights of all parties involved, opponents of immigration call for heavy penalties for ‘illegal’ immigrants because they broke the law of the land in order to come into the country and seek a better life for themselves (exactly the same, it would be good to point out, that most of the ancestors of these opponents did in their time—the only difference being that immigration laws at the earlier twentieth century were far more rights-respecting.) This appeal to blind obedience is essentially a disguised Kantian Categorical Imperative, by which (for example) all laws are to be respected and to act against them is wrong. Rand has, on many occasions, spoken about the moral malignancy of Kant’s philosophical system, but it becomes crystal clear when we simply change the law being broken but retain the same principle at hand. Let the law be, for example, the Fugitive Slave Act of 1850. Said law, forged during the split between the North and the South in matters of slavery pre-Civil war, requires all found runaway slaves to be returned to their masters.

This treatment allows, then, for the perpetuity of unjust laws (such as most current immigration laws), and therefore no progress shall ever be accomplished. Any law that violates the rights of the individuals must remain forever embedded on the books of the legislature, the violability of rights being insignificant (to these argumenters) compared to the sanctity of law- essentially inverting the rational order of government by making humans serve the law, and not have laws that serve the rights and well being of humans. The argument from the Sanctity of Law must be discarded immediately, for no moral law could ever subvert the spirit of the inalienable rights of the individual.

Finally, the last argument against immigration is also the argument that will allow to condense all previous hostile arguments, and facilitate the formulation of an ethical alternative. Opponents of immigration cite the lack of security, especially around the border. The argument alludes to the potential presence of terrorists and criminals slipping through unsecured borders, and therefore proving that tighter security and closed borders are necessary. However, what is never fully explored by the proponents of this argument is that these conditions were caused precisely by current immigration laws. By making legal access to the country nearly impossible, the immigration system has essentially created a ‘black market’ of immigration in the guise of Coyoteros (people who specialize in smuggling immigrants through the border), fence-hoppers, visa-shams and other similar situations.

Under the principles of Rand’s ethics, immigration isn’t a privilege- it is a right, based solely on the right for an individual to choose the course of his life and property in the manner that he sees fit as long as he does not infringe upon the life or property of others. The black market in immigration is nothing more than a sense-of-life reaction to a rights-violating regulation: individuals will go to great lengths to secure their basic rights, even in the face of tyrannical controls. This was the case with a similar regulatory violation, Prohibition, and the same could be said for the War on Drugs. Individuals have the right to determine the course of their lives--- whether it be positive, rational endeavors such as immigrating to a country to find better fortunes, or indulge in a moderate drink in a relaxed social atmosphere, or whether it be negative or even criminal, such as immigration with intent of crime, and complete substance abuse. The laws of a republic’s judicial system are in place in order to enact appropriate punitive action towards those that violate the rights of others: the immigrant who steals will receive his sanction, the substance abuser will be penalized should he drive, for putting the lives of others at risk. Prohibition and the War on Drugs caused no decrease in the use of those substances in question- and it has not created a change in immigration, either. Rather, it has conflated the issue.

All across the border, an uncountable number of immigrants crosses ‘illegally’ each day. Uncountable, because the Border Patrol of the United States is stretched to the limits in its attempts to secure the border. The risk lies in the fact that hidden among the majority of, let’s face it, innocent immigrants (there is no moral crime in the pursuit of that which is a legitimate right, and any law seeking to impede it is, in fact, the moral criminal) are individuals who come to the country with far more nefarious purposes, but using the large number of ‘border-hoppers’ as a screen.

This is the practical result of current immigration policy: the creation of a situation that is unmanageable and which, in the long term, will put the United States at risk in a manner from which it cannot defend itself. Since Ayn Rand defines morality and ethics as the codes that make life possible, sustainable, and able to thrive—can it be honestly said that, by their results alone, these immigration policies are ethical, or even moral? Rather, the interventionist streak of the pragmatist philosophy espoused by politicians, combined with the Categorical Imperative, have created an unsustainable situation.

So what is the rational, ethical, and moral option? Harry Binswanger and most student of Ayn Rand favor an open borders policy that allows people to come into the U.S., work and obtain residence (not citizenship- the issue of whether citizenship should even be given freely at birth is another issue tackled by Objectivists, but it is outside of the scope of this paper) in a mostly hassle-free procedure that consists of a background check and proper identification.

The reason for the background check is simple: while a government may not impede a rights-respecting individual from entering the country, the legitimate role of government is to protect its citizens against threats- and this includes both terrorists and criminals alike. The procedure itself would cost no more than that of a background check (state police checks range from as little as $19.95 to as much as $49.95 ) instead of tens of thousands of dollars as most current immigration processes go.

With this ethical alternative, we would have given legitimate immigrants a means by which they may cast their own lot legally. With a far more expedient procedure and less paperwork, most immigrants will pass through the process as they did when they entered the United States through Ellis Island, many generations ago. Across a far more depopulated border, we will find those who will still be trying to cross the border: The criminals, terrorists and similar individuals who would have red flags in their backgrounds. Of course, catching every single criminal is unrealistic, just like it is impossible to pinpoint which US-born citizen will become a criminal or a terrorist until they act (like Mohammad Atta, but also like the Unabomber) , but the important principle at work is that the system is no longer punishing individuals because they might be something, but rather are treated with courtesy or restrained for what they are, which is shown through their actions.

This provides an ethical means through which to stop the worst threats and the most blatant criminals, who find themselves no longer being able to use millions of people as shields- people whose sole ‘crime’ is that of wanting to breathe free. As a result, the border patrol has a much easier job, the job industry is revitalized with immigrants working both in low-skilled areas and high skilled areas, and a system is in place that, finally, respects the rights of the individual. 

Sources Cited

Biddle, Craig. “Ayn Rand's Theory of Rights: The Moral Foundation of a Free Society.” The Objective Standard. Fall 2011. Vol 6. Glen Allen: Glen Allen Press, LLC, 2011. Print.

Rand, Ayn. “The Objectivist Ethics”, The Virtue Of Selfishness, A New Concept Of Egoism. New York: Signet, 1964.

Rand, Ayn. “Man’s Rights”, The Virtue Of Selfishness, A New Concept Of Egoism. New York: Signet, 1964.

Binswanger, Harry “On Open Immigration”, The Harry Binswanger List

Ayn Rand, Ford Hall Forum, 1973.

U.S. Department of State, "Temporary Worker Visas." U.S. Department of State, 2011. Web. 29 Mar 2012.

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