Immigration and Freedom

by
Andrew P. Napolitano

Recently
by Andrew P. Napolitano: Guns
and the President

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 the
politicians and bureaucrats would rather avoid is the natural law.
The natural law is a term used to refer 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. Truly, in the Judeo-Christian tradition, only God is
sovereign – meaning He is the source of His own power.

Having received
freedom from our Creator and, in America, thanks to the values embraced
by most of the Founding Fathers, individuals are sovereign with
respect to our natural rights. St. Thomas Aquinas taught that our
sovereignty is a part of our human nature, and our humanity is a
gift from God. In 1776, Thomas Jefferson himself recognized personal
sovereignty in the Declaration of Independence when he wrote about
Nature’s God as the Creator and thus the originator of our inalienable
human rights.

The rights
that Jefferson identified consist of the well-known litany of life,
liberty and the pursuit of happiness. By the time his ideological
soul mate James Madison was serving as the scrivener at the Constitutional
Convention in 1787, the list of natural rights had been expanded
to include those now encompassed by the Bill of Rights. Yet again,
the authors of the Constitution and its first 10 amendments recognized
that the rights being insulated from government interference had
their origin in a source other than the government.

This view of
the 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. Thus, since the freedom of speech, the development
of personality, 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 personal human right, long recognized under
the natural law as immune from governmental interference. Of course,
governments have been interfering with this right for millennia.
The Romans restricted the travel of Jews; Parliament restricted
the travel of serfs; Congress restricted the travel of slaves; and
starting in the late 19th century, the federal government has restricted
the travel of non-Americans who want to come here and even the travel
of those already here. All of these abominable restrictions of the
right to travel are based not on any culpability of individuals,
but rather on membership in the groups to which persons have belonged
from birth.

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 here. 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. Nativism
teaches that we lack natural rights and enjoy only those rights
the government permits us to exercise.

Yet, the freedom
to travel is a fundamental natural right. This is not a novel view.
In addition to Aquinas and Jefferson, it has been embraced by St.
Augustine, John Locke, Thomas Paine, Rev. Dr. Martin Luther King
Jr., Pope John Paul II and Justice Clarence Thomas. 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. They are not attenuated because our mothers were
not in the United States at the moment of our births. Stated differently,
we all possess natural rights, no more and no less than any others.
All humans have the full panoply of freedom of choice in areas of
personal behavior protected from governmental interference by the
natural law, no matter where they 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 the 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, or if my
neighbor wants a friend of a friend from Mexico City to come here
to work in his shop, 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.

Reprinted
with the author’s permission.

January 31, 2013

Andrew P.
Napolitano [send
him mail], a former judge of the Superior Court of New Jersey,
is the senior judicial analyst at Fox News Channel. Judge Napolitano
has written seven books on the U.S. Constitution. The most recent
is Theodore
and Woodrow: How Two American Presidents Destroyed Constitutional
Freedom. To find out more about Judge Napolitano and to read
features by other Creators Syndicate writers and cartoonists, visit
creators.com.

Copyright
© 2013 Andrew P. Napolitano

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