Immigration & freedom
By Andrew P. Napolitano
Published: Saturday, Feb. 2, 2013, 9:00 p.m.
As President Obama and Congress grapple for prominence in the debate over immigration, both have lost sight of the true nature of the issue at hand.
The issue that politicians and bureaucrats would rather avoid is natural law. Natural law refers to human rights that all persons possess by virtue of our humanity. These rights encompass areas of human behavior where individuals are sovereign and thus need no permission from the government before making choices in those areas.
This view of natural law is sweet to the heart and pleasing to the ear when politicians praise it at patriotic events. But it is also a bane to them when it restrains their exercise of the coercive powers of the government.
Freedom of speech, the right to worship or not to worship, the right to use technologically contemporary means for self-defense, the right to be left alone, and the right to own and use property all stem from our humanity. The government simply is without authority to regulate human behavior in these areas, no matter what powers it purports to give to itself and no matter what crises may occur.
Among the rights in this category is the freedom of movement, which today is called the right to travel.
The right to travel is an individual human right, long recognized under natural law as immune from governmental interference. Of course, governments have been interfering with this right for millennia.
The federal government has restricted the travel of non-Americans who want to come here and even the travel of those already here.
The initial reasons for these immigration restrictions involved the different appearance and culture of those seeking to come here and the nativism of those running the government. Somehow, the people who ran the government believed that they who were born here were superior persons and more worthy of American-style freedoms than those who sought to come here. This extols nativism.
Nativism is the arch-enemy of the freedom to travel, as its adherents believe they can use the coercive power of the government to impair the freedom of travel of persons who are unwanted not because of personal behavior but solely on the basis of where they were born.
Our fundamental human rights are not conditioned or even conditionable on the laws or traditions of the place where our mothers were physically located when we were born. Americans are not possessed of more natural rights than non-Americans; rather, we enjoy more opportunities to exercise those rights because the government is theoretically restrained by the Constitution, which explicitly recognizes natural law. That recognition is articulated in the Ninth Amendment, which declares that the enumeration of certain rights in the Constitution shall not be used by the government as an excuse to deny or disparage other unnamed and unnamable rights retained by the people.
So, if I want to invite my cousins from Florence, Italy, to come here and live in my house and work on my farm in New Jersey, or if a multinational corporation wants the best engineers from India to work in its labs in Texas, we have the natural right to ask, they have the natural right to come here, and the government has no moral right to interfere with any of these freely made decisions.
If the government can restrain the freedom to travel on the basis of an immutable characteristic of birth, there is no limit to the restraints it can impose.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.
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