Illegal Aliens and Rights: Remembering the Reasons Print
By Hadley Arkes   
Monday, 10 May 2010


It seems to come persistently as a surprise to the alumni of our leading colleges and universities that the teachings of the American Founders and Lincoln stand in an adversarial relation to the orthodoxies now dominant on the campuses. Lincoln and the Founders spoke of “natural rights,” rights that were grounded in the nature of men; rights that promised to be the same in all places where that nature remained the same. But in the perspective now of the post-modernists and the radical feminists, there is no fixed human “nature.” Nature, they say, is “socially constructed” from one place to another according to the vagaries of the local culture. Nor are there moral truths, let alone truths that hold their truth in all places and cultures.

Of course, the people who hold to these views keep belying their own signature tunes as they keep casting moral judgments across cultures. They have condemned apartheid in South Africa, genocide in Darfur, and the “wrongs” suffered by women in exotic places. And now, with the country agitated over illegal immigration, the Left seems not to have noticed that their political passions are quite at odds again with the slogans they have taken as principles. We have seen demonstrations of late, fiercely opposing the new law in Arizona to look more searchingly for illegal immigrants. This new wave of protest comes on top of demonstrations over the last two years, claiming nothing less than the wrongness of barring the country to those who are here illegally. The claim then is that there is something wrong with the laws that would prevent just anyone from gaining entrance to the country and gaining the full rights that attach to “citizens.”

In the tradition of political theory we have long absorbed, we have long thought it reasonable to make distinctions of this kind: A visitor from London gets off the plane in New York, and we don’t think it is necessary or apt to ask to see his passport before we protect him from a lawless assault on the street. His right to be protected against an unjustified assault, we have thought, has nothing to do with his citizenship. But the same man cannot take himself over to the City College of New York and expect to enroll on the terms, and with the subsidized rate of tuition, that the people of New York are willing to provide to their fellow citizens. As the line used to go, there are rights that are arise for all humans by nature, in all places; and there are certain rights that are created by governments in different enclaves, or by private associations (such as the right to use the squash courts at Amherst College).

Now if the argument is made these days that illegal aliens in America have a right to become citizens, it should be clear that this right cannot be one that comes to them through citizenship, because clearly they are not citizens. The demonstrators must be invoking a body of rights that are not simply posited or created locally, in America. They must be pointing to a body of rights that could be invoked by any human in any country. In other words, they must be backing into some notion of “natural right” or – gasp – natural law.

The argument is fueled by a moral passion, and yet swept over in the recent arguments has been an awareness of the moral requirements of citizenship, arising from the moral character of the political order itself. To admit people into the circle of citizenship is to admit them into a share of power over our lives, for they may be voting. It becomes reasonable then to ask, as a minimum, whether they are committed to a regime of citizens: That is, are they willing themselves to respect the equal rights of those around them to be governed by their consent, in a regime of free elections? And that is why it was thought reasonable in the past to deny entrance into the country – or to a place on the ballot – to people who were committed to the Communist or Nazi parties. A country that once took the “moral” demands of citizenship more seriously had a clearer sense of the peril in sharing power over our lives with people who were prepared to vote away a regime of elections and constitutional protections.

In the world of the American Civil Liberties Union, the political order is likened to a hotel – it is simply a place where people live, without any invidious moral tests. There is simply an obligation to pay the rent and obey the minimal house rules. I caught last week a notable commentator on my favorite station, FOX News, expressing his anger that “the most powerful country in the world can not control its southern border.” He insisted that the country had a right to bar entrance to people who had no accountable reason for being here. But what were those reasons for being here? Or what were those serious reasons for barring the entry of people? It may be the temper of the times: Even the conservatives may be forgetting that the first reasons are moral reasons. They involve the right of the community to preserve a certain moral character even while it adds to its numbers and seeks to enlarge its economy.

Hadley Arkes is the Ney Professor of Jurisprudence at

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