##419 The free Society is an open society
January 31, 2017
The Free Society Is an Open Society
by Jacob T. Levy
“He has endeavoured to prevent the population of these
States; for that purpose obstructing the Laws for Naturalization of Foreigners;
refusing to pass others to encourage their migrations hither…” — Declaration of
Independence
“Mister Gorbachev, tear down this wall.” — Ronald Reagan,
June 12, 1987
—
In my previous essays between the election and the
inauguration, I discussed how we got here, and how we didn’t, as well as what’s
distinctively worrying about the new style of politics. In the first week of
the new administration, it’s worth noting that we saw an outpouring of an
identity-based politics of protest against rising illiberalism and misogyny, an
extraordinary level of public untruth repeated by a spokesman who showed signs
of not believing what he was saying but being forced into it, and the continued
surrender of Republican elites to the new order.
I’m going to return to those themes in future posts; but
given that the new administration is now in power, and it’s time to interrupt
analyses of how and why, with discussions of what it is doing.
The populist authoritarianism that is rising across developed
countries, the United States very much included, is characterized by a zeal to
harden borders. Trade and migration are, between them, the great villains of
the modern populist imagination, surpassing even domestic dissent. And,
unsurprisingly, the first week of Donald Trump’s presidency included sharp
blows against both the gradually liberalizing international trade order that
the United States has led since World War II, and the freedom of human beings
to move from place to place in the world. The chaos of the administration’s
cruel and poorly-planned action against border-crossing by those born in seven
Muslim countries is emerging as the defining act of these early days. For an
earlier generation of conservatives, a militarized wall on an international
boundary symbolized the evils of Communism and Soviet domination in eastern
Europe. Now, such a wall will be the symbol of the Trump era as a whole. The administration
is moving astonishingly quickly to make the United States a closed society.
Walls work in both directions—they keep people in, as well as
out. The administration’s decision to suspend reentry for lawful residents who
were abroad at the time of the order tells non-citizens in the United
States—permanent residents, long-since admitted refugees or those granted
asylum, spouses and students and H1-B visa holders doing highly skilled work
that the country needs—that they travel outside the United States at risk of
not being allowed to return. Even the eventual decision to allow permanent
residents to re-enter on a case-by-case basis was presented as an exercise of
agency discretion, not a disavowal of the tactic. The word of the United States
isn’t good anymore—”permanent” resident now means something much less than
that, and refugee status once granted might be revoked with no notice.
Henceforth, peaceful, law-abiding residents will be much more afraid to leave
the country. The barriers to letting people in thus act as a kind of cage to
keep people in. Caged people aren’t free.
I wrote in Rationalism, Pluralism, and Freedom that “The core
of liberal ideas includes religious toleration and freedom […], the rule of
law, and especially the control by law of the executive’s security apparatus
through habeas corpus, procedural rights, and prohibitions on torture and extrajudicial
executions, imprisonment, or dispossession[…], and the desirability of commerce
and international trade.” (p. 87)
Not only have all three elements of this core come under
assault in Trump’s first week in office—they have come under assault
specifically in association with his war on migrants: religious discrimination
in migration, extrajudicial detention being carried in airports as we speak,
and the idea of a 20% tariff wall on goods to pay for the physical border wall.
Notwithstanding some current talking points, the new immigration
restrictions are religiously discriminatory in both intent and effect. Rudy
Giuliani has openly acknowledged that this was the policy crafted in order to
get as close as possible to the ban on Muslim immigration Trump called for on the
campaign trail, while maybe being able to legally get away with it. And the
combination of the identification of seven overwhelmingly-Muslim countries as
the source of the supposed security threat (though zero nationals of those
countries—zero—have killed anyone in an act of terrorism on U.S. soil) with
special exemptions for Christians from those countries turns the new restrictions
into exactly what Giuliani’s account leads us to expect: a
religiously-exclusionary act with a veneer of a security excuse.
As Dylan Matthews argues, the liberal political theorist
Judith Shklar’s essay “The Liberalism of Fear” helps us to see the centrality
of resisting cruelty and lawless state violence to the liberal vision of the
free society. (My first book aimed to apply Shklar’s insights to the political
treatment of ethnic and cultural minorities; its title was a direct reference
to the essay.) Until the end-of-week Muslim ban and abandonment of refugees, I
would have said that the great horror of Trump’s first week was the mooted
possibility of reopening black site prisons and his enthusiasm about torture—an
enthusiasm he says he’ll reluctantly hold in check in deference to the views of
some of his top appointees, though it’s hard to imagine his “deference” to
these subordinates lasting forever.
But the developing war on immigrants puts us squarely into
liberalism-of-fear terrain now. Coercive border control is an especially
central location for those fearful rule-of-law concerns. It routinely involves
indefinite detention without legal counsel or trial. While intelligence
agencies all too often exercise state violence without legal oversight, for
those charged with border control it is a constant. This weekend, legal
residents of the United States were prevented from boarding their planes home,
or on arrival in the U.S., were physically detained without counsel or legal
process.
While at this writing the situation remains unclear, there
are reports that even after judicial rulings against aspects of the new policy,
border patrol agents were refusing to recognize court orders. Trump advisor
Stephen Miller seemed to adopt an especially strong attitude of disregard for
judicial oversight, maintaining that a court order neither “impedes or prevents
the implementation of the president’s executive order which remains in full,
complete and total effect.” And even before the Muslim ban was announced, the
new executive orders on border control significantly expanded the arbitrary
authority of immigration control officers to decide whom to deport, and
insisted on a huge increase in those undocumented migrants—including
asylum-seekers—who would be kept in indefinite detention. (Dara Lind at Vox,
author of that latter piece, has been providing especially important and
valuable coverage of these issues.)
For four months, all refugee admissions will be suspended,
from everywhere in the world, abandoning many to the repression and war from
which they are fleeing. The refugee suspension has perhaps gotten the least attention
in the U.S., as it lacks some easily-understood and high-profile features of
the Muslim ban: both the religious discrimination and the exclusion from
reentry of people who have already lived here.
But it is no less cruel. People whose claim for refuge has already
been judged valid, people who have already been “vetted” as posing no security
risk, people fleeing war zones and repression from anywhere in the world, now
find themselves locked out. This keeps refugee camps that much fuller, leaving
that much less space for new people also fleeing. It further encourages very dangerous
alternatives, such as families entrusting themselves to smugglers or to risky
self-help in boats or on foot. Locking refugees out is a violation of international
law; more to the point, it is monstrous, and renders the U.S. a kind of jailer
for people at risk, keeping them locked in where they are now.
In treating peaceful civilian migration the way states treat
invading armies, coercive border control always involves a deeply suspect kind
of lawless violence. These aren’t permanent features of political life. The
system of passports and visas as required for international movement and
migration is surprisingly recent. Open, document-less borders within Europe
were closed as an emergency measure during World War I; the generalized world
system of passports wasn’t imposed until 1920. The passport as a document was
much older, but mainly offered protection to local subjects traveling abroad.
It could confirm one’s identity, but was not normally a requirement for
crossing frontiers.
The liberal understanding of free societies and politics grew
in part out of life in commercial medieval European cities—cities whose walls
were to keep out armies, not civilians (or goods, as the cities were entirely dependent
on trade). In the famous legal principle that governed those cities, “city air
makes you free;” one who lived in such a city for a year and a day gained the
freedom of city life against the oppression of the feudal countryside. The
cities were proud of this, and grew by it.
After enjoying open borders for half of its history, the U.S.
has had a deeply unhappy series of experiences with border control. The first
federal regulation on entry was a racist restriction on Chinese migrants, the
second a similar de facto regulation of those from Japan. There have been
recurring restrictions on the grounds of political beliefs. During the middle
decades of the 20th century when U.S. immigration was most severely limited,
Franklin Roosevelt turned away Jewish refugees fleeing Hitler on the grounds
that they might include German spies—an approach that is all but indistinguishable
from the contemporary conflation of those fleeing war and persecution in
majority-Muslim countries with radical Islamist terrorists. (Many of those
turned away then died in the Holocaust; and many of those turned away now may
die in their home countries’ civil wars or despotic regimes.) And the long
effort to prevent migration across the southern border has seen a constant
expansion of intrusive police power, and an extension of border control
authority deep into the territory of the United States, putting a majority of
the American population in regions where border agents wield
extra-Constitutional powers.
Many people have gradually come to acknowledge the failure of
a drug war focused on militarized border interdiction, and the cost in
subjecting Americans to a domestic militarized police force trying to suppress
supply of drugs for which there is demand. Such policies finally turned much of
northern Mexico into a near-war-zone, with wealthy and violent drug cartels
enjoying the profits of U.S. prohibition. (This is, of course, not unrelated to
many Mexicans’ attempt to flee into the U.S.)
We should expect no different from a war on immigration. A
wall can’t stop the operation of supply and demand, whether for labor or for
safe refuge; it can only enrich the illegal smugglers who learn how to defeat
it. And hunting migrants peacefully living inside the U.S. requires constant
invasion of everyone’s privacy and liberty, not just that of the migrants
themselves. Every relationship from the workplace to the classroom to marriage
is subject to regulation and prohibition: you may not employ, or teach, or
marry whom you wish. But they’re also all subject to policing: who are your
students? Have you checked your employees’ papers? Are you really married to
your spouse?
Far too many people seem to believe that the system of walls,
cages, and lawless state action can be safely aimed only outward—against strangers,
against those with no claim on the United States—and that the shift toward
populist authoritarian nationalism at the border can be cordoned off from
domestic liberty. Even if it were right (which it’s absolutely not), to
disregard the cost to those strangers’ liberty—to lock them in their countries
of origin, however tyrannical, violent, or impoverished they may be—that’s not
how it works. A society can’t close itself off and remain free.
—
Jacob T. Levy is Tomlinson Professor of Political Theory and
Director of the Yan P. Lin Centre for the Study of Freedom and Global Orders in
the Ancient and Modern Worlds at McGill University; author of Rationalism,
Pluralism, and Freedom; a blogger at Bleeding Heart Libertarians; and a
Niskanen Center Adjunct Fellow and Advisory Board Member
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