An Ominous Threat to Liberty
By Andrew Scott, Political Theory & Philosophy 

“We must preserve a minimum area of personal freedom if we are not to ‘degrade or deny our nature’. We cannot remain absolutely free, and must give up some of our liberty to preserve the rest. But total self-surrender is self-defeating. What then must the minimum be?” [1]

How much are we willing to give away? What must be preserved? Often these questions are posed in an attempt to find balance between state restrictions and individual liberties. Obviously, no restrictions would lead to chaos and too many restrictions would destroy any idea of autonomy - too many restrictions would be, well, “self defeating.” So what boundaries are appropriate within the constraints of a state that seeks to preserve individual liberty? The following is a look at a group of people who wish to preserve such liberty, but also understand that something must be sacrificed in order to preserve it. In this article, a particular form of libertarian thought will be applied to a controversial issue among many of America’s policy makers: immigration. Within this issue, the search for the difference between sacrifice and individual liberties will be revealed. Although abortion, taxes, and property rights are highly controversial among libertarians, the issue of immigration provides an even more interesting controversy not only over the individual’s right to immigrate, but also over the rights of the United States of America to create policies that restrict immigration. Although libertarianism generally favors the individual, this argument in favor of the state will show explicitly why immigrants have the right to move about freely, but not necessarily the right to immigrate successfully.

I. Libertarianism Found
To best understand this argument, it is important to know the arguments that libertarianism puts forward. It would not be a stretch to argue that everyone shares a few ideals in common with libertarians, as surely no one advocates complete control in all facets of life by another party. Even Monarchical, Socialist, Communist, and Fascist societies, which are among some of the most invasive forms of government, contain some element of individual liberty or freedom within their doctrines. Boundaries define each society’s state, creating a difference between individual rights and state control. But in the case of a libertarian society, one which possesses ideals shared among many parties, where do such definitional boundaries lie? And what then becomes the difference between individual liberty and state control? Finally, how does this difference vary with that of other societies?

Let it first be noted that there is a difference between a Libertarian and a libertarian. Libertarians believe that the existing political order is ripe to implement the principles of libertarianism, and often they are members of the Libertarian Party. A libertarian believes in some, most, or all of a set of libertarian principles, and is not necessarily a member of the LP. This article focuses on the latter because those who subscribe to the former are part of the latter, but not vice versa.

An overall tenet of libertarian philosophy is well posited by the United States Libertarian Party:

“ We hold that all individuals have the right to exercise sole dominion over their own lives, and have the right to live in whatever manner they choose, so long as they do not forcibly interfere with the equal right of others to live in whatever manner they choose.” [2]

While this is a Libertarian view of libertarianism, it holds true, to a certain extent, throughout the spectrum of libertarian ideals and provides a nice base from which to start an outline of libertarian ideals. It is also interesting as it exemplifies the struggle to find the difference between “sole dominion over their own lives,” and preventing interference “with the equal right of others to live in whatever manner they choose.” Inviolable rights must be established in order to determine which rights must be given up for the preservation of others. Through these rights and boundaries, a solid definition of libertarianism can be found.

II. Libertarianism Defined
What rights does the individual have? This question is subjectively answered among all libertarians, but there are some constants that all libertarians find common among their individual philosophies. All libertarians agree that the individual has the right to live without unwanted harm being place upon him/her by another party. Along with the right to life without harm, libertarians would all agree that the individual has a right to freedom. From a policy standpoint, this means libertarians read the First Amendment with a strict interpretation. Libertarians believe in freedom of speech, freedom of religion, and the freedom to express thoughts without interference. This is a basic tenet in individual liberty. Finally, libertarians widely agree that individuals possess the right to pursue their goals; more simply put, this is the Jeffersonian ideal of the right to the “pursuit of happiness.” From a libertarian standpoint, the right to life without harm, the right to freedom, and the right to pursue happiness are fundamental natural rights that cannot be infringed upon. That sounds eerily similar to the American concept of life, liberty, and the pursuit of happiness, doesn’t it? So is America a libertarian society? If so, how could an argument justifying the restriction of immigration possibly exist?

III. Finding the Difference

To many, libertarians come off as individualists, isolationists, or even anarchists. While the latter of these three is a bit extreme, it seems the first and perhaps the second provide a very simple, but general overview of what libertarianism strives for: individual liberty. Libertarians want minimal state interference and maximized individual ability to make choices. They argue for a minimal difference between individual liberty and state control. Minimal difference means that the state should minimize action taken that differentiates itself as an authority over an individual. Obviously, the mere presence of a state requisites some control, but libertarians argue that the control necessary to maintain order and to preserve the natural rights of the individual is minimal. For example, libertarians often argue against taxes, as they provide the state with a way to control the money the individual earns and limit the freedom of choice of the individual. On other issues, like gun control, freedom of speech, and sexual orientation, libertarians leave it to the individual to make their own decisions and argue that the state has no place in making these decisions for them. It should be noted that there is widespread disagreement among libertarians on the issue of abortion. Divided between the individual freedom of the mother and the individual freedom of the unborn child, this issue proves too inconclusive to explore further.

We have now defined boundaries that provide a fairly holistic and brief account of libertarianism. Also, we have now found the minimal difference between individual liberty and state interference in a libertarian society. However, a further look into a controversial policy issue might provide a more precise version of what this minimal difference is.

IV. Protection vs. Invasion
We now have a paradox. What seems to be a libertarian society has a serious decision to make concerning individual liberty and its own rights as a governing entity. The next part of this article will deal with the right of the state to act as an autonomous individual when it comes to protecting its citizens, and the extent to which that right can be executed. Several policies, including the Patriot Act, have been made with concern to issues on immigration. This is a cut and dry example of the United States flexing its power as an autonomous individual. However, it must be questioned whether acts such as these have surpassed the extent to which such a state should flex such power.

First, a brief description of the Patriot Act will be put forth. Second, we will examine the arguments within the libertarian school of thought in favor of immigration (in opposition to policies restricting immigration) and in opposition to immigration (in favor of these policies). Finally, a judgment will be place on the actions taken so far on immigration within the United States, and thus we will see if the state has acted within the constraints of its own principles, or if it has in fact violated the natural rights of the individual.

The Patriot Act was signed into law in 2001. Since then, the bill has been reauthorized; though much debate pushed significant change to the bill as it supposedly violated civil liberties, the bill remains very similar to its predecessor. The basic premise of the bill is to grant extended authority to law enforcement in order to protect individuals from the harm of possible terrorist attacks. The act contains 10 titles (I-X), but this article is concerned most with Title IV: Protecting the Borders. This title aims to protect the United States’ citizens through immigration restrictions.

Within this title, a previous act (the Immigration and Nationalization Act of 1952) was amended. [3] In this amendment, action was taken to cut off the right of those individuals who had in any way advocated or endorsed terrorist action to immigrate into the United States. Exceptions are made in the case of individuals who wish to renounce their ties to such rhetoric.

Other actions were taken that obligate the Attorney General to detain any illegal alien who is currently engaged in activity that endangers U.S. national security. Such activity includes espionage, plotting to overthrow the government, and even the exportation of goods. If there is suspicion that an individual has taken one of these actions, then he/she can be detained up to 90 days without evidential proof, and up to six months more if evidence is given “proving” his/her threat to the security of the United States.

V. Immigration – A Libertarian Concept?
Obviously there is much more literature tied to this bill, but we can comfortably stop here and begin our libertarian analysis of immigration in America. There are two strands of libertarian thought on the argument of immigration. Some are for open and free immigration, others are not. How can this be if we, as libertarians, justify the three natural rights of life, liberty, and the pursuit of happiness? As stated earlier, an assumption is made that the state can act as an individual. So, in comparing opinions on immigration within libertarianism, a discourse is made between individual A and individual B rather than state A and individual B.

Let us first examine a group of libertarians, such as the Libertarian Party of the United States, who agree with immigration as a free and open policy. The Libertarian Party states:

The legitimate function and obligation of government to protect the lives, rights and property of its citizens, requires awareness of and control over the entry into our country of foreign nationals who pose a threat to security, health or property. Political freedom and escape from tyranny demands that individuals not be unreasonably constrained by government in the crossing of political boundaries. Economic freedom demands the unrestricted movement of human as well as financial capital across national borders. [4]

It seems that this group of libertarians sees the right to move freely to be parallel in importance to the three natural rights of life, liberty, and the pursuit of happiness. These libertarians might even state that it is un-libertarian to disallow open and free immigration. They demand borders be opened, and in their defense, they demand the borders be secured. They see individual A as equal to individual B, thus neither possesses authority over the other. But I offer an analogy that may provide a libertarian justification for the authority of individual A over individual B.

Think of individual A as a mother. This mother already has children, but wouldn’t mind another as she enjoys taking care of her children. She is very wealthy, and provides more for her children than any other mother. Her children also do well for the family as they help to increase the family’s wealth. She is looking to adopt a child and thus goes to an orphanage to take a child out of an unfortunate situation and give him/her a chance at a good life (notice the parallels to the United States, but also note that this could be any nation). Individual B, the immigrant, is an orphan looking for a better home. Perhaps individual B was born into unfortunate circumstances, or perhaps he/she is a criminal and has been rejected by his/her own family. Whatever the circumstances, individual B is looking for a new family and hopes to improve his/her situation.

The mother has a decision to make. In choosing which orphan to select to be a part of her family, she must consider a number of factors. How does the child relate to her other children – will they get along? Other factors include the productivity of the child, as the benefit of a productive child will allow more children to prosper under her care. She must consider whether the child will be a good addition to the family as a whole, and most importantly, whether or not this child will fit in to her family. This last concern seems to parallel the issue at hand the best. Let’s say that individual B is in fact a parentless criminal. Should the mother then accept her, even though such a choice may threaten the security of her own children?

The orphan has no natural right to be a part of the mother’s family, just as an immigrant has no natural right to be a citizen of a different country. It should be noted too that the mother’s own children do not have natural rights to be a part of the family either; rather, this is a privilege that has been given to them by virtue of birth – it is a associational right rather than a natural right, as their right to be a part of the family stems from association with that family. Furthermore, circumstances may arise to sever the mother and child relationship, unlike a natural right. Similarly, a natural born citizen has no natural right to be a citizen of that country; he/she is privileged to that right through the association of natural birth in that country, and certain breaches in that contract may result in a loss of full citizenship status.

However, the same set of rights given to an individual through association can be earned through contracts. If the mother chooses individual B, then that orphan has a contractual right to be part of the family. Much the same, if the state allows an immigrant to enter its country, then that immigrant now has a contractual right to become a citizen there. Yet, if the mother perceives individual B to be a threat to her family, she then can make a decision to deny that child acceptance into her own family. So it seems logical that if the United States sees a threat in certain potential immigrants, it possesses the right to disallow their entrance in the name of national security.

Finally, to complete the analogy, the same principles will apply to individuals already within the family. Assume the mother already has a couple of adopted children in addition to her natural born children. We have already determined that the mother can break ties with one of her children in the case that they breach the contract that provides acceptance into the family. Thus, if one of her previously adopted children breaks this contract, it seems logical to assume that the mother could give up that child for adoption again. Similarly in the United States, if an immigrant breaks the contract allowing him/her into American society, then that immigrant’s citizenship status can be justifiably removed.

This seems to be a complete justification for the Patriot Act, but take your assumptions no further. It has now been proven that when the state acts as an individual, it can possess authority over other individuals. That is, when a state acts to protect the individual’s right to life, liberty, and pursuit of happiness, it does so holding its own citizens in priority to those who wish to be citizens. But how far can the state go in taking action as an individual? How much authority does the state in fact have over others? The rest of this article seeks to draw the line between protection and invasion.

VI. The Border of Justice
Is it unjust to place restrictions on those seeking life, liberty, and the pursuit of happiness? Is the third of these natural rights not completely violated if such action is taken? The answer to both questions is no. Individuals have the right to move freely without restriction. They have the right to visit a different country and to do as they wish in that country so long as their actions do not violate the three natural rights of any other individual. However, a line is drawn between the right to move freely and the right to claim citizenship. Becoming a citizen of another country is certainly not a right, let alone a natural right. The ability to immigrate successfully into a new country is a contractual right formed between the individual and the state in which he/she wishes to immigrate. While America looks to uphold its principles of life, liberty and the pursuit of happiness, it also has the right to determine the suitability of individuals for its own society and preserve the rights of its own citizens. As the governing body of the United States of America, the state has the responsibility to ensure that the natural rights of its own citizens are protected without fault. To do this, it may require that the contractual right to immigrate be diminished or in some cases abolished.

The question remains: how far may a state go to protect itself from harm, from the violation of liberties, from interference with its own pursuit of happiness? The Patriot Act was enacted to answer threats to our national security, but it seems that in doing so, the state as an individual might have exceeded its authority over other individuals. The terminology in the Patriot Act, though well defined, still leaves much ambiguity, through which unjustifiable authority can be taken by the state to detain or deport a supposed threat. Terms such as “terrorism” and “threat to national security” are loosely defined, and while common sense tells us that they are necessary – their loose interpretations could lead to a debacle of infringements upon individual liberties.

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. While a threat to national security is hardly an unreasonable cause for search and seizure, evidential proof must be put forth in order to legitimize the process of immigration restriction. Within the Patriot Act, several sections of the bill have made it easier to enact search and seizure with less, if any evidence. That is to say that the bill justifies search and seizure as reasonable so long as there is a perceived threat; it doesn’t have to be backed with evidence. Section 209 allows for authorities to access voicemail without a wiretap order; authorities need only to apply for a simple search warrant and search and seizure can commence. Section 220 gives power to the Federal courts to issue nationwide search warrants for electronic surveillance, “even if the warrant doesn’t satisfy the strict requirements of the Fourth Amendment to the Constitution.” [5]

The ACLU, the American Civil Liberties Union, has spoken out against the principles of the Patriot Act. In their argument, they target specific sections of the act on the basis of violations against civil liberties. Their main argument lies in the idea that the act has given Federal authorities too much unchecked power. More specifically, they argue that the act has given authority to search without evidential proof, to investigate without probable cause. [6]

Perhaps the ACLU is right in their argument – maybe the act has given authorities the right to take action without reason. Or perhaps they are completely wrong, and no such incident has ever occurred. It is hard to argue against a policy that is claiming to protect us against harm, to preserve our own liberty and pursuit of happiness. In fact, it is completely irrational to do so. But the line has been drawn between protection and invasion, and whether or not the action taken has crossed that line, the fact that such action could do so poses an ominous threat to our natural rights.

The ideas behind policies such as the Patriot Act have good intentions. They allow the state to act as an individual and to decide who gets to be part of the family. America prides itself on the principles of life, liberty and the pursuit of happiness; without such policies as the Patriot Act to defend against threats to the natural rights of the individual, no such principles would exist. That being said, a difference must be found in the rights we are willing to give up to the state and the rights that the state will then preserve. In no way should a policy that acts to preserve a set of rights jeopardize that very same set of rights. Unfortunately, the Patriot Act does jeopardize the very rights it seeks to protect and therefore, such a policy is unjust. We must look toward policies that can, under no uncertain terms, ensure the basic liberties and natural rights of all who take part in our family.

VII. A Side Note on the Harms of Open Borders
As a closed borders libertarian, I am aware of certain arguments that may question my own philosophical alignment. Many libertarians, especially open border libertarians, seek to ensure the freedom of any individual to either engage in contracts, any agreement that is consensual between two parties concerning transfer of property, or avoid them at will. [7] In today’s world, open borders libertarians look to ensure the freedom of illegal immigrants to engage in contracts with private citizens. They state that illegal immigrants are merely looking to pursue happiness and are engaging in such contracts with private citizens who happen to reside in a different country; therefore, any restriction made on their work in the United States infringes on their right to carry out such consensual contracts. Furthermore, they argue that restricting such freedom cuts down on free market competition, an ideal that all libertarians hold in priority. Philosophers like Randy Barnett place a lot of worth in the freedom of contract, but they mistakenly assume that its worth lies intrinsically within the contract. Allowing illegal immigrants to work in the United States has created a level of uncertainty with regards to our national security. But even more importantly, it has allowed for the diminishing value in the sacredness of the freedom to contract. By allowing individuals to agree to labor for a price that is lower than their true worth, we are causing competition to increase but wages to fall. In return, the only way competition will continue to increase is if laborers agree to work for less than their contract is worth. This is not the competition libertarians seek to preserve. We seek to increase competition but also to increase the well being of the laborer. Thus, it seems that allowing for total freedom of contract without regard to border protection not only causes the individual laborer harm, but slows down market competition and, most importantly, devalues the worth of the contract in the first place.

VIII. Does a Libertarian Society Exist?
The natural rights posited by libertarians coincide nicely with the ideals of American society. The right to life, liberty, and the pursuit of happiness are fundamental ideals that we as Americans cherish and sometimes take for granted. But does this coincidence make America libertarian at heart? It seems on the surface that it would. But deep down, it seems that America prides itself on democratic and republican rather than individual liberal ideals. This is seen clearly in our style of government: a representative democracy. Earlier examples explain the justification of immigration restrictions in the face of preserving the principles of life, liberty, and the pursuit of happiness. Perhaps it is the discrepancy between a democratic and republican heart supported by a libertarian skeleton that justifies the seemingly contradictory acts of restricting immigration in the United States.

To end this argument for justified restriction on immigration, we must try and find out what type of nation we want to be. Do we in fact want to put individual freedom first? Or do we want a majority to decide what is best for our own good? Perhaps we want a small group of representatives to decide for us? But why would we want to take the risk of allowing another party to make choices for us? We as individuals must acknowledge that immigration poses a threat to our natural rights, but the policies America has carried out to deal with this problem pose a much greater threat to the natural rights of all. Therefore, we must reconsider why we choose to live in America. The very issue of immigration shows us that people don’t come here to be a part of the majority or to be told what is best for them by others – they come here to be free. They come here to be accepted as an individual who can live the American dream – the dream of life, liberty, and the pursuit of happiness.

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[1] Isaiah Berlin. Four Essays on Liberty: Two Concepts of Liberty. (Oxford: Oxford University Press, 1969).

2 “Issues and Positions”, The United States Libertarian Party, Portland: Convention 2006. http://www.lp.org/issues/platform_all.shtml (accessed April 2007).

3 “USA Patriot Act: Title IV,” Wikipedia, available at http://en.wikipedia.org/wiki/USA_PATRIOT_Act%2C_Title_IV

4 “Issues and Positions”.

5 Wikipedia. USA Patriot Act: Title II. http://en.wikipedia.org/wiki/USA_PATRIOT_Act%2C_Title_II

6 Ibid.

7 Randy Barnett, The Structure of Liberty. (Oxford: Clarendon Press, 1998).