The Institute for Justice podcast is always an interesting listen. I could write exclusively about the cases they talk about, but that's sort of what they do in their newsletter, and if I've learned anything about the law, it's that I don't want a lawyer suing me for plagiarism.
But one case made me rewind the podcast to make me sure heard it correctly, and sure enough, I did.
An internet security firm, Tiversa, intentionally broke into a medical laboratory's server, stole sensitive data, then approached the lab's management in an attempt to land them as a client. The lab refused, probably figuring that they'd be better served by a firm with a sightly more ethical approach.
When Tiversa did not get the job, they reported the breach to the Federal Trade Commission in the hopes that the heavy hand of the government would pressure the lab into purchasing their services.
Here's where I got confused. I was expecting that Tiversa would have been prosecuted for stealing the data. I was wrong. It took about 4 years, but the FTC eventually sued the lab over the data breach.
Maybe it's just me, but blaming the victim is never good policy. This is the kind of abuse that I trust Rand Paul would attempt to curb. I hope Donald Trump will as well.
Matthew Parris tells the story about devouring the book that made him become a Tory at the age of ten.
Older readers may remember this series. Younger readers should know that Pookie was a small winged rabbit with blue trousers, rescued in distress by a loving, poor but honest girl called Belinda, who lived alone in the wood, made Pookie a padded bed in a sort of shoebox, and helped him grow wings. The pair became the greatest friends.
One late autumn day, Winter — drawn as a scary giant with icicle fingers — arrives. There’s a great storm. Trees blow down. Burrows flood. All the animals in the wood (Pookie’s friends) are devastated; homes destroyed, food stores ruined, wings and paws wounded. Pookie and Belinda take in the casualties, warm them by the fire and feed and tend to them. But Pookie (with whom I identified) strides out into the storm in a rage and, shaking his little paw at Winter, tells him to stop being so cruel, go back to the North Pole and never return.
And to Pookie’s shock, Winter withdraws. Pookie is briefly feted. Autumn is followed by spring. Then all nature is thrown into confusion. Flowers have no time to prepare to flower again; dead leaves and branches have not been cleared, nor animals refreshed by hibernation. Now all the woodland folk protest, and Pookie becomes a figure of hate.
So, in the biggest adventure of his life, Pookie flies all the way to the North Pole, nearly perishing in the attempt. He confronts Winter a second time (this full-page picture was so frightening I kept it under my pillow to sneak glances in the night). Pookie confesses he had been wrong, apologises, and begs Winter to return. The little rabbit now realises that the seasons have a purpose, that lazy or foolish animals with ill-sited burrows or nests have to be shown their folly, and every creature given an incentive to work hard, prepare and store.
Admiring Pookie’s courage, Winter relents, agrees to return, and wafts the exhausted bunny home on a storm cloud.
Being a confirmed enemy of winter as we all know it and a believer in directing human ingenuity toward a tightening of winter to the length of one month and a radical reduction of the shortened winter event to immaculate winter wonderland conditions, I would tend to extend the lesson to be learned from the above story to approximate more of a conservative-progressive compromise: let us respect personal responsibility as a pivotal means for changing the world in unheard-of ways. Let us not just brave what is, but achieve what is not yet. And let us not be too shy to do it collectively.
The late Sir George Martin [producer and arranger of The Beatles] created substantial British exports. Had the import of his music to America been banned to save the jobs of US musicians, Britain would have missed out on some revenue but the American consumer would have been the biggest loser, missing out on the music. Trade benefits the importing country: that’s why it happens.
Frankly, we might as well be living in the 17th century, so antiquated are our current debates over trade, both here over Brexit and in America over the presidential nominations. Many current assumptions about trade were debunked more than two hundred years ago and then tested to destruction in the mid-19th century.
In the 17th and 18th centuries European governments were in thrall to “mercantilism”, the belief that the purpose of trade was (roughly) to push exports on to other countries in exchange for cash and so build up a surplus of treasure with which to pay armies to fight wars. So they sought to restrain imports with tariffs and bans, while encouraging exports with monopolies and gunboats. Britain’s Navigation Acts after 1651, and the chartering of companies such as the East India Company, were part of this policy.
Along came Adam Smith and made a different argument, that mercantilism punished consumers and the poor, while rewarding producers and the rich; that imports were a good thing because they raised people’s standard of living by giving them what they wanted at lower prices. With money to spare, consumers bought more things from producers, creating jobs and generating prosperity. If bread was cheaper, people could afford more textiles. Gradually, with the help of David Ricardo and John Stuart Mill, Britain was persuaded of this and by the time Robert Peel, William Ewart Gladstone and Richard Cobden were in charge, Britain had declared unilateral free trade and dared the world to follow.
[...]
It is true that unilateral declarations of free trade, while benefiting everyone as consumers, can hurt those producers who have previously been protected from competition by tariffs and other barriers. Because the pain is more concentrated than the gain, their voice is louder, and Donald Trump and Bernie Sanders have been amplifying it. (America has never been as convinced by the free trade case as Britain: its infamous Smoot-Hawley tariffs of the 1930s worsened the depression and hastened war.)
Yet the effect of trade on jobs is no different from the effect of innovation. Just as imported Chinese goods have destroyed the jobs of British manufacturers, so threshing machines destroyed the jobs of farm labourers, washing machines destroyed jobs in laundries and Uber will destroy the jobs of taxi drivers, yet everybody was net better off.
[...]
Governments should certainly compensate people for locally destructive effects of changing trade or technology, but not by raising barriers against imports. That just punishes consumers and stifles economic growth.
Ridley denies that the
... European single market is a free trade area. It’s not: it’s a customs union — a fortress protected by an external tariff. And it’s shrinking as a share of world trade.
Ridley thinks, the UK would be better off after a Brexit:
Professor Patrick Minford of Cardiff Business School argues in a recent study that the single market distorts Britain’s economy, making us “produce more of what we are worst at and less of what we are best at, while our consumers have to pay excessive prices”. If Britain left the EU it would gain about 4 per cent of GDP as a result, he calculates.
Although the current low oil price is bankrupting many producers and explorers in North Dakota and elsewhere, and many rigs are now standing idle with jobs being lost, there has only been a very modest fall in production.
That is because the technology for getting oil out is improving rapidly and the cost is falling fast, so some producers can break even at $30 or even $20 a barrel and it takes fewer rigs to generate more oil. It is one of the cruel features of innovation that it usually benefits the consumers more than the inventors.
This means the shale industry can now put a lid on oil prices in future. Aguilera and Radetzki argue that not only is the US shale industry still in its infancy, but that there is another revolution on the way: when the price is right, conventional oil fields can now be redrilled with the new techniques developed for shale, producing another surge of supply from fields once thought depleted. They also expect that other countries — beginning with Australia, Argentina, China and Mexico — are ripe to join the technology revolution begun in American shale.
Volkswagen’s deception was a self-deception because with some of the best engineers and scientists, they chose to accept the claims of the Intergovernmental Panel on Climate Change (IPCC). Clearly they did not look at the IPCC reports because if they had they would discover what Klaus-Eckart Puls discovered.
“Ten years ago I simply parroted what the IPCC told us. One day I started checking the facts and data—first I started with a sense of doubt but then I became outraged when I discovered that much of what the IPCC and the media were telling us was sheer nonsense and was not even supported by any scientific facts and measurements. To this day I still feel shame that as a scientist I made presentations of their science without first checking it.” ”Scientifically it is sheer absurdity to think we can get a nice climate by turning a CO2 adjustment knob.”
If they looked at the IPCC Reports and didn’t reach the same conclusion, then they are grossly incompetent, or the corporation took a political decision with their tacit approval.
They, like all automotive producers chose to pursue CO2 reduction as a marketing tool rather than examine the science and make the proper decision. Figure 2 shows their, now laughable, attempt to exploit the marketing opportunity.
Volkswagen was not alone in the decision to capitulate to the green lobby and government deception about climate change. Almost all industry chose to cow and beg forgiveness for their sin of using fossil fuels. [...]
They surrendered to the eco-bullying even promoting what they had to know, or could easily discover, was bad science. They abjectly backed away despite simple and plausible options – they became appeasers. Like all appeasers, they only created bigger problems for themselves and society.
The crocodile is now eating them. Consider the case of Exxon. They totally surrendered to the ridiculous charge that they spent $16 million on climate change research. A simple comparison with government spending on climate research offsets the charge of bias as Joanne Nova so ably exposed. Couple this with the legitimate argument that understanding climate and climate change is basic research and development essential for any energy company. No sensible investor would put money into a company that was not doing such research. Now compare Exxon’s behavior with that of the insurance industry. They spend millions, to great praise, funding documentaries and promoting and exploiting severe weather threats for the sole purpose of selling more products.
4.0 New Strategies for a Paradigm Shift (1850 - 1900) - Economising Justice and the Machinery of Legitimation
In a free society, attempts at spurring innovation of the political infrastructure are an important part of the discovery process supported by politics and the state. A formative outcome of political innovation specific to an open-access society is the shift in the relative weight of decisions or policies designated as “just” compared to those categorised as “legitimate.” In traditional, culturally uniform societies with little value diversity, the minutest details of life may be regulated in terms of being “just” or “unjust.” In a complex and populous society that grants considerable personal autonomy, there is a need to economise on absolute judgements. Justice as an absolute value becomes reserved to authenticate fundamental requirements of coexistence, the constitutive rules of the game. Many other contentious issues are processed by the political infrastructure to classify them as “legitimate” or “not legitimate.” Once a policy proposal has passed the various tests of legitimacy it may still not be regarded as “just” by sizeable numbers of players, but it will be tolerated as “legitimate,” i.e. legitimately arrived at. For instance, legislation concerning abortion may be countenanced as “legitimate” by the same people who view it as “unjust.” The political construct of legitimacy provides a peaceable diversion around a deadly battlefield where absolute concepts of justice collide unforgivingly. Again, we encounter a case of repeated games helping to transcend rational impasses by showing promise to improve the odds for mutually advantageous long-term conditions of coexistence. It is for this reason that the machinery of legitimation figures as a prime target for political innovation in a free society.
When by the mid-1800s restrictionist interest groups found themselves cut off from effective political support by the dominant parties, and emerging third parties congenial to their cause foundered, they poured energy into developing innovative ways to influence the machinery of legitimation. By (1) aligning themselves with trendy intellectual developments favourable to their cause and (2) pioneering extra-party and non-electoral forms of political influence they came close to bringing about a shift of paradigm in the public outlook on immigration.
As for intellectual developments, one needs to bear in mind that for many people it used to be second nature to think of certain other humans in racial, quasi-racial or otherwise discriminatory terms. The inviting attitude in regard to immigration was largely a form of favourable racial discrimination confined to males hailing from the Northwest of Europe. At the time, the Darwinian revolution was acquiring new guises in the social sciences, some influential variants of which would lend the dignity of science to blatantly racist taxonomies. Eugenics, founded by Darwin’s cousin Francis Galton, was beginning to gain popular credibility and scientific respect.
“In an outpouring of scholarly articles published during the 1890s, several of the countries most respected intellectuals fundamentally recast the American immigration debate.” (p.77) The new paradigm spawned a multi-variant arsenal of reasons for excluding aliens, such as differentiating between old immigrants, needful at the time and of hardy stock, and new immigrants, depraved, effeminate and unneeded in the face of an allegedly lessened demand of unskilled labour.
The movement was spearheaded by the Immigration Restriction league (IRL), an organisation founded by Harvard alumni fearing for their political and economic clout, and drawing support “from the ranks of upper-class academics, businessmen, politicians, and various professionals who saw themselves as the last line of defence for Anglo-Saxon traditions.” (p.76)
Taking skilfully advantage of (1) the newly acquired scientific semblance of discriminatory theories, and (2) frustration with corruption in politics, the IRL also pioneered new ways to benefit from (3) the growth of the federal state and the increased bureaucratic complexity of government.
Aware of the expansion of congressional administrative tasks and tools, protagonists of the IRL realised that the new standing congressional committees resembled what Woodrow Wilson was to designate as “little legislatures” and “the most essential machinery of our government system.” (p.76)
They set out to advocate Progressive notions of “scientific government” and “direct democracy,” capturing the bureaucracies’ natural need for and susceptibility to direct input by those successfully presenting themselves as experts. Given the intellectual climate and their direct connection with policy makers, restrictionists had the edge over expansionists, especially over the new targets of anti-immigration initiatives: politically unorganised newcomers from eastern and southern Europe. IRL activists became integral part of a national immigration policy network, supplying the pertinent House and Senate committees with a welcome stream of statistical material, research papers, and expert witnesses. In this way, the IRL was able to seize the initiative in shaping policies and providing rationalisations that reform-minded lawmakers were happy to ponder or even adopt.
The lynch-pin of the envisioned shift in the national policy paradigm was a bill requiring a mandatory literacy test for all immigrants.
In 1898, the bill won passage in the Senate, its success owing “much to the endorsement of the immigration committee, prominent support from social scientists, and the relative absence of interest group opposition.” (p.82) But when House and Senate conferees met to discuss the bill, increasingly organised interests, pro-immigrant business and ethnic groups, began to build a formidable front of resistance. The bill’s fate showcases how under political freedom different interests compete over the right to change the social contract. In the face of mounting opposition, the IRL ultimately failed to rally significant additional support for the bill, notably from organised labour, while key ethnic constituencies of the Democratic party exerted pressure on president Grover Cleveland to veto the literacy test bill. The president complied. However, the bill’s sponsors were confident that a large Republican majority in Congress would override the presidential veto. But the oppositional forces from business groups, German organisations, Jewish, Italian and Catholic leaders, the Chamber of Commerce and other organisations were relentless, demonstrating a cautious Congress the determination and prowess of a whole phalanx of pro-immigration interests. At the end of the day, Congress elected not to overturn the presidential decision. Also, the near success of the bill alerted oppositional forces to the political innovation that the anti-immigrant movement had been able to exploit to its advantage.
Political competition always affects and is affected by intellectual currents vying for epistemic hegemony in the public discourse. Both in a dependent position as well as a driving force, the political discovery process is enmeshed in the evolution of intellectual and scientific trends. A vast subject in its own right, we can only touch on the fact that politics is exposed to episodes of intellectual history whose soundness may be revealed, if ever, only by some considerable delay. Add to it that the subjects of political discourse may not be amenable to objective assessment, and that politics is faced with rational ignorance and substantive ignorance on a massive scale. Cognitive separation, i.e. completely different and irreconcilable perceptions, among the contestants in the political race is substantial, normal, and inevitable. It must be admitted and peaceably managed in a free society.
5.0 Conclusion
Discovery through political competition is not without risks, and it cannot guarantee the absence of severe error, but it is still the best way (1) to incorporate knowledge generated in civil society, (2) to keep politically dominant views exposed to ongoing corroboration and (3) to include the largest possible number of interest groups in the permanent sequel of repeated games that produce effective trust in society, thus bringing about the dynamic equilibrium of dissension and pacification which defines feasible freedom.
5.1 Lessons for Freedom
Classical liberalism tends to misunderstand or ignore the political logic of freedom, owing to a monadic conception of the rights underlying personal freedom. In theory, these rights are absolute, immutable, and monadic, i.e. attached to and owned by the individual in inalienable form. Under feasible freedom, however, people, in exercising their liberty, negotiate and renegotiate these rights, both in politics and in private transactions. Free citizens constantly renegotiate new permutations of feasible freedom, thereby constantly rewriting the social contract.
We detect an unexpected and rather incongruous similarity of deficiency in socialist ambitions for central planning and liberal calls for a depoliticised society. Both desiderata are based on incomprehension of a vital spontaneous order which concerns the economy in the case of socialism and politics and the state in the case of liberalism. Both political camps underrate or misconstrue the need and the logic of the indispensable discovery procedures required for strong economic performance and, respectively, the feasibility of civil society at large.
As there is no single person or group of persons capable of registering all inputs needed to calculate an efficient allocative distribution, Hayek suggests inclusion of all citizens in a free economy to approximate far better the needed range and quality of information. Analogously, no single person or group of persons is capable of registering the inputs needed to take better political decisions than are available from a regime that guarantees the possibility for all citizens to make their contribution to political decision making. Incongruously, liberalisms akin to Hayek’s insinuate the equivalent of an impersonal central planer by suggesting that observance of certain rules activate automatisms in a free society, notably the market mechanism and the rule of law, that reduce the need of politics to such an extent as to portray freedom as a state of affairs distinguished by the absence of significant levels of politicisation - a visionary predilection that amounts to the disenfranchisement of the public.
A free society, this is the claim of the present paper, is akin to a free economy, in so far as only the mobilisation of dispersed knowledge lodged in decentralised units (citizens and their organisations) can bring about a discovery process capable of sustaining human relations that make freedom is feasible.
Liberalism cannot fulfil its role in a free society unless it acknowledges that its leadership in matters of constitutional integrity does not carry over into the area of legitimate political discretion. And liberalism must recognise that within the boundaries of constitutional integrity there is substantial leeway for political discretion by players of quite distinct emphases of vision. Freedom remains an open-ended project.
In order to establish her meaning and detailed shape, liberty depends on a political infrastructure that engages contestants in a competitive discovery process that is likely to result in eclectic policy outcomes deviating from puristic ideological positions. Adaptability is a survival requirement for any agent participating in the political discovery process. Puristic ideologies fail to stay in touch with the diversity of interests and views that push toward concrete policies. Feasible freedom may be conceived of as a dynamic equilibrium balancing dissension and peaceableness. Approximating the balance requires that the competing agents continuously search for new information about the prospects of their agendas, swiftly adjusting the latter to sustain support and the power to exercise influence. Precise and consistent accounts of freedom such as endeavoured by classical liberalism play an important role in clarifying the rules of the discovery game and the inalienable contours of freedom, but they are too abstract and too general to be able to prejudge the differing aims that people ought to be free to pursue within the competitive political framework of an open access society. Ideologies lend impetus to freedom’s sine qua non: discovery by political competition, but they do so fruitfully only when being capable of changing and renewing themselves in response to the findings elicited by the search.
The success of politics under feasible freedom is to be judged by the ability to balance dissension and peaceableness under the auxiliary conditions of high levels of personal autonomy, productivity, and wealth. We may register good performance and even progress along these lines in the very presence of state of affairs that appear insufferable from a classical liberal point of view. But it should not be forgotten that classical liberalism is just a set of hypotheses, some of which are rejected by freedom. Freedom is not identical with liberalism. Freedom is not identical with liberalism‘s account or expectations of her.
Studying politics and the state from an angle that reveals them as an emergent order may be instrumental in overcoming the liberal’s or indeed anybody’s sweepingly hostile presumption against them. A change of perspective of this kind may enable us to discern among the tangle and turmoil of politics moves as if by an invisible hand, bringing to the fore the benign effects of practices habitually dismissed as corrupt or underhanded. Consider political opportunism.
2.1 The Indeterminacy of Freedom and Heuristic Opportunism
What lends the system of political freedom an often sordid and even corrupt quality, namely the opportunism of shifting and duplicitous positions, makes it also more flexible and representative. After all, in an adaptable political order, there is a need for trial, error, and error elimination, demanding a kind of responsiveness that leaves behind patterns both of apparent and real opportunism. Introducing erratic and unpredictable conduct into politics and thus dividing contestants, such patterns of opportunism may eventually mark a path that brings foes together or at least allows for pacific competition. There is a fine line between genuine opportunism, on one hand, and political learning and experimentation, on the other. In large measure, politics is about reconciling the irreconcilable. Indeed, politics is the art of finding compromises and forms of power sharing suitable to sustain repeated games that, in turn, produce a durable atmosphere of effective trust.
2.2 Opportunism, Political Learning and Effective Trust
Effective trust is attained when people act as if they trusted one another, without entering into relationships of personal trust. Entrusting one’s political enemy with a high political office is a case in point. Effective trust is brought about not by personal encounters and the subsequent discovery of mutual congeniality but rather by virtue of the constraining effects of institutions that ensure fairness and prevent vicious and costly retribution. Office and person become separable. The political and the private personae are assigned distinct spheres. People cooperate peacefully and productively in one sphere - say as employer and employee - while being fundamentally at odds with each other in a different sphere where they act as political partisans.
The classical liberal expectation that social order may be derived from observing firm principles and certain generally applicable rules of just conduct represents a necessary, yet not a sufficient condition for citizenship in civil society. The classical liberal’s overly pronounced confidence in static rules is unrealistic because patterns of apparent and real opportunism play a key role in balancing (1) the right to disagree with one another in a free society against (2) the need to establish effective trust and peaceable conditions. Political reality is subtle. Behaviour that gives the appearance of opportunism and duplicity may be beneficial in helping to feel one’s way in unchartered terrain, sound out the popular consensus and its tolerance for innovation and nonconformity, forge alliances on issues of lesser weight to gain support on questions deemed more significant, withdraw from or reduce the impact of infelicitous political experiments etc. Political manoeuvring is not exhaustively captured when viewed solely under the aspects of mischief and bad faith. Moreover, a measure of deviousness on the part of the politically active may be inevitable and even required to effect the benefit of living in a society that supports (1) high levels of rivalry alongside (2) a condition of robust pacification.
3.0 Path Dependent Consolidation (1800 - 1900) – Establishing Effective Trust, the Invisible Hand of Politics, and Feasible Freedom
From a divisive plurality of views on immigration emerges in the 18th century a range of conditions ensuring a preponderance and continuity of policies that favour immigration in the U.S. While ineffective in terms of asserting their preferred policies in that period, as becomes clear with hindsight, nativist and other restrictionist forces always maintained a significant presence in the political process and never ceased to search for opportunities to gain the upper hand. Before we look at the factors supporting the path dependent unfolding of a pro-immigration consensus in early U.S. policy regimes, three fundamental starting conditions merit attention.
While the Constitution (1) outlines the framework for political competition and the political discovery process in the new republic, it is (2) parsimonious in regard to specific substantive issues, avoiding preconceptions on controversial subjects like immigration. Add to this that (3) the Constitution has been prepared, ratified and actualised in a manner highly democratic by historical comparison and, in that way, inclusive of the main interests and protagonists invested in immigration. As a result, political competition and discovery were made credible as fair processes. creating an environment for trust-building repeated games and credible commitment, which, in turn, encourage loyalty to the political order not only by the winners but also by the losers in a given episode of political decision making. By reinforcing trust in the rules of the new political game, it was possible to meet the defining conditions of feasible freedom: namely the ability of strike a balance between the two pans of the scales of liberty: maximal dissension, on the one side, and, on the other, peaceableness during competition and later in the face of policy enforcement. This is a result that is as subtle as it is important and powerful: it reflects the transrational mechanisms of politics in a free society – an aspect that falls in the category of “moves by the invisible hand of politics and the state.” Having reached an insurmountable impasse on the rational level, with neither of the parties willing to give up on their views concerning immigration (abortion, capital punishment etc.), irreconcilability and emotional tension are reduced by converting them into effective trust in a repeated game that may yield disappointing outcomes on individual issues but promises a net gain in terms of long-term overall coexistence. While Jeffersonians steadfastly continued to translate “pro-immigrant polices into foreign-born votes” (p. 55), the Federalists, later the Whigs and still later the Republicans grappled with a legacy of nativism and other anti-immigrant positions. It proved an inheritance hard to shed, partly for reasons of conviction, partly for reasons of credibility, and partly for reasons of electoral calculation.
Until its total demise in the 1820s, the Federalist Party was split on the immigration issue, with its leader Alexander Hamilton urging the need to accommodate immigrant voters by advocating open immigration policies, a position resonating strongly with Federalists in the urban centres where immigrant voting blocs were substantial.
Dissension among the Federalists is indicative of the discovery and learning process that political agents are subjected to by changing circumstances and competing proposals of adapting to them. With unprecedented mass immigration setting in, there were opportunities to profit from xenophobic propaganda, notably during the 1837 depression. Especially Catholics and the Irish were subjected to venomous attacks. But the long-term trend in favour of the newcomers could not be reversed. During the 1844 presidential campaign, the Whigs ran for the last time on an anti-immigrant platform, only to conclude eventually that their narrow defeat had been due to a lack of immigrant support. From then on, the Whigs dissociated themselves from nativist currents. With that, the party system closed itself off from anti-immigrant constituencies. From 1820 to 1860, immigrants as a proportion of the total population had grown from 4.4% to 31.5 %.
Path dependent patterns of generous immigration conditions were boosted when the expansion of U.S. territory thanks to the Louisiana Purchase (1803) and the Mexican-American War (1846/47) significantly increased demand for settlers and labourers. Receptivity for immigrants was further strengthened with the spread of industrialisation in the New World. Indubitably, the most basic and weighty factor, however, helping to turn the first hundred years of the U.S. into an era of accommodating immigration policies is to be found in the “extraordinary shift in American government from … “a regime of notables” to the world’s first mass-based democracy in which universal white male suffrage, party organizations, and competitive elections predominated.” (p.59)
From the draft of an unpublished paper that I have recently presented at a Conference on immigration:
1.1 Classical Liberalism, Feasible Freedom, and Immigration Politics in the US (1776 – 1900)
While the classical liberal tradition from Locke to Hayek is united by an emphasis on the self-organising features of free societies, it entirely fails to account for politics and the state as a spontaneous order, thus missing the political nature of liberty. Hayek correctly describes economic competition as a discovery procedure, yet neglects to appreciate that politics too is a discovery procedure, in the absence of which freedom is impossible. Thus, owing to an inability to understand that political practices and institutions lie at the heart of freedom, classical liberalism suffers from nothing less than a misconception of her central value, its normative vision of liberty being blind to the conditions of feasible freedom.
In this paper we wish to highlight some of the pivotal features of freedom overlooked by classical liberalism and sketch the contours of a theory of feasible freedom. To this purpose, we are drawing upon evidence from immigration politics as it was to unfold during the first 120 years after the founding of the United States of America. The history of the new American republic, which was strongly inspired by the ideas of classical liberalism, promises to yield interesting insights into the advancement of feasible freedom.
2.0 Trend Finding (1776 - 1800) – Political Competition as a Discovery Process
“Americans have been ambivalent about immigration since the earliest days of their republic. The founding generation grew up in British North American colonies that had contrasting traditions of governing European immigration. Some colonies were routinely hostile to outsiders; some granted entry and equal membership to immigrants who shared their ecclesiastical goals; some recruited immigrant labor but limited the rights newcomers enjoyed; and still others extended generous terms of immigration and membership to all white male settlers […]” (p.49f.)
This and all subsequent page references in the present selective draft paper refer to Tichenor, D.J. (2002), Dividing Lines. The Politics of Immigration Control in America, Princeton and Oxford, Princeton Paperbacks.
In 1781, Thomas Jefferson expressed apprehension about European immigration doubting that newcomers would be able to renounce their Old World loyalties to “absolute monarchy.” He did not believe that new waves of immigrants were capable of honouring republican principles, individual liberty and self-government. In order to avert the danger, he advocated constraints on future admissions.
By contrast, Thomas Paine urged “the nation to adopt the cosmopolitan individualism of Pennsylvania, where the equal membership of English, Dutch, Germans and Swedes showed that <we surmount the force of local prejudice as we enlarge our acquaintance with the world>.” (p.51). Paine’s universalist cosmopolitanism was echoed in George Washington’s pronouncement of 1783 that “America is open to receive not only the Opulent and respectable Stranger, but the oppressed and persecuted of all Nations and Religions.” (p.51)
In a summer of closed meetings in Philadelphia, when America’s leading statesmen were deliberating the Constitution which they finally published in the same year on September 17, 1787, the debate revealed significant differences of opinion and among them also rather ambiguous positions. George Mason, for instance, hailed the economic benefits of alien labour, while opposing broad political rights to “foreigners and adventurers.” (p.52) By contrast, James Madison was worried that denial of public office to immigrants would “give a tincture of illiberality to the Constitution.” (p.52). In the end, the delegates to the convention struck a compromise by determining the foreign-born to be ineligible only for the presidency, while resolving on modest residency requirements for congressional office. (p.52)
The framers did not touch on the subject of immigration in the text of the Constitution (except indirectly, as noted above). It was wise of them not to prejudge the issue, as, we conjecture, their restraint kept the political discovery process open, a condition vital to political stability in the early years of the new republic. At the time, however, the founding fathers had tactical options to consider. To all intents and purposes, practical immigration issues were handled by the states, which the framers did not wish to alienate by pre-emptive constitutional determinations. Also, it appears, in remaining seemingly neutral, they effectively relied on the expectation that the states would continue to pursue policies of pragmatic leniency toward immigrants. Only a few years later, the first Congress in 1790 enacted a uniform rule of naturalization that made citizenship very easy to acquire for European men. It provided that <free white persons> who resided in the United States for as little as two years could be naturalized by <any common law court of record in any of the States.> (p.53)
At once, the restrictionists prepared to strike back. During the 1790s, the atmosphere for immigration grew inclement. The Anglo-French conflict fuelled support for restrictionist demands. One of the two leading parties at the time, the Federalists denounced French and Irish immigrants for putatively aligning themselves with the ideals of the French Revolution and fostering factionalism by participating in democratic clubs. What is more, the Federalists were alerted by the fact that in large cities, Irish and other immigrants would tend to cast their votes in favour of the other large party: the Democratic Republicans. Thus, taking advantage of congressional majorities, the Federalists enacted laws curbing access of European aliens to citizenship and enfranchisement. In 1798, Congress passed the Alien and Sedition Acts which increased the residency requirement for eligibility to citizenship to 14 years, and allowed the president to imprison or deport aliens considered "dangerous to the peace and safety of the United States" at any time. An effort at forestalling the political decline of the Federalists, the Acts did not have the intended effect, and strengthened the bond between foreign-born voters and the Democratic-Republican party. With their help, Jefferson won the presidential election in 1800, and proceeded quickly to rescind the restrictionist legislation of the Federalists. He presided over the return of control of alien admissions to the states and the restoration of generous conditions of naturalisation. Once a man of nativist inclinations, Jefferson emerged as a staunch defender of the rights of white male immigrants, cementing the pro-immigration trend of the 18th century and handing a structure of expansionist path dependency on to the new century.
The political search for a dominant trend was accompanied by uncertainty and erratic turns. By the late-eighteenth century, however, compelling circumstances and pragmatic considerations predisposed a preponderance of political forces to embrace European immigration: (1) a paucity of labour, (2) abundant territory and (3) a vibrant desire for rapid settlement and economic development along the advancing frontiers of the United States.
Jefferson and other leading political figures, such as Benjamin Franklin, betrayed duplicity, opportunism and even full reversal of opinion in the matter of immigration. Why? The political discovery process of a free society confronted them with new evidence, forcing them to learn and adjust their public-facing agendas.
I find this video and the tool it introduces very useful. Of course, I don't know what the pros say. At any rate, Nebraska appears in good shape - keep it that way:
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