Does our nation have the right to control immigration? When considering this issue, you have to consider the principles of mutual consent between our citizens and our government. In addition, it's imperative to understand the principles of the law of nations, national sovereignty and how far our government's jurisdiction and protection extend.
(1) Mutual Consent - The United States of America is a society of individuals who have a mutual consent compact with their government. So what is mutual consent, and why is it important? This was best explained in the 1780 Massachusetts Constitution where it says “The body-politic is formed by a voluntary association of individuals: It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.”
Or as one of our founders, James Wilson, said in “Of Citizens and Aliens” (1791): “The social contract is an assemblage equal in number to the number of individuals who form the society. And that to each of these agreements, a single individual is one party and all the other individuals of the society are the other party. Just as the individual must consent to live within the community, the community must consent to the membership of each individual.”
Each of these examples describe the concept of Mutual Consent. Each person has to agree to be part of the society, but the consent also has to work in the other direction. In other words, the rest of the people in that society have to consent to take on the other person as a member of that society. If you don’t have that mutual consent, it’s not a relationship of equals and it opens up the possibility that one party to the contract can simply impose his will on the other parties to the compact. And therefore it’s not a basis for free self-government or voluntary citizenship.
So how does our government give "consent" to foreigners wanting to join our society? This power for our government to give consent to foreigners is authorized in the Constitution in Article 1, Section 8, Clause 4 where it says "The Congress shall have Power...To establish an uniform Rule of Naturalization..." What this means, essentially, is that the federal government, acting as the agent of the people of the United States, can declare the terms upon which an outsider can come into our society, can live here, and become an American citizen. If the outsider, the alien, voluntarily agrees to those terms, and lives according to them, then we will extend citizenship to that person according to the procedures and laws of our society. However, a foreigner who crosses our nation’s borders without the consent of our society has rejected this compact by refusing to give their consent to follow our rules of naturalization, and therefore they have not received the reciprocal consent from our society that is required to join it.
Our founders debated at length about the issue of allowing foreigners into our country. In their discussions you can see clearly that they were concerned about the challenges our nation faces in deciding who to allow in, what character of people we should desire to allow in, how many foreigners to allow at one time, and even where we should allow them to settle. Regarding the character of foreigners Thomas Jefferson stated in his “Notes on the State of Virginia” (1784) that we have peculiar principles which he describes as “a combination of the freest principles of the English Constitution with others derived from natural right and from natural reason. To these, nothing can be more opposed than the maxim of absolute monarchies.” Meaning, people are going to want to come here as a refuge for the oppressed, which is great, but we must understand that they will come here with the habits of mind and behavior they have developed that were greatly influenced by the tyrannical regimes from which they originated. And it’s going to be very difficult for many of them to assimilate to our way of life. Jefferson continues “They will bring with them the principles of the governments they leave, imbibed in their early youth; or, if able to throw them off, it will be in exchange for an unbounded licentiousness, passing, as is usual, from one extreme to another. It would be a miracle were they to stop precisely at the point of temperate liberty.” The founders also were concerned that too many immigrants at a time has the risk of changing the character of the nation. Benjamin Franklin noted in the 1750’s that Pennsylvania will “in a few years become a German colony. Instead of their learning our language, we will learn theirs or live as in a foreign country.” They also felt it is a problem when too many immigrants from the same place settle in one particular locale because it encourages them to retain their old values, their old customs, their old traditions. George Washington recognized this and said to John Adams in 1794 “[The advantage of immigration and settlement] taking place in a body (I mean the settling of them in a body) may be much questioned; for, by so doing, they retain the language, habits, principles, good or bad, which they bring with them.” All of these discussions simply go to show that the founders were concerned with allowing foreigners into our country and they established the Naturalization clause in the Constitution to enable the government to manage the process of immigration.
(2) The Law of Nations - What did our founders say about how our nation is brought into existence? James Wilson, in “Of Man, as a Member of Society” (1791) said “A state may be described a complete body of free persons united together for their common benefit to enjoy peaceably what is their own and to do justice to others. It is an artificial person. It has an understanding and a will peculiar to itself. It deliberates and resolves. It has rules, it has obligations, and it has rights.” So like an individual, a society has power over its property restricting access to outsiders. And this too is enshrined in the Constitution. The power in Article 1, Section 8 “to define and punish offenses... against the law of nations.” This concept of the law of nations is simply the law of nature, natural law applied to nations. Thomas Jefferson confirms that the foremost component of the law of nations is “the moral law of our nature” and this is because “the moral duties which exist between each individual in a state of nature accompany them into a state of society. And the aggregate of the duties of all the individuals composing the society composes the duties of that society toward any other. So that between society and society the same moral duties exist as did between the individuals composing them while in an unassociated state. Their maker not having released them from those duties on their forming themselves into a nation.” What all this adds up to is that non-citizens have no right to be here and cannot impose themselves on us. The immigrant has no right to establish himself as the lawful superior of any person now existing in the United States. You have to have a relationship of equals. And if one party can dictate to the other without the other’s consent then that’s not a relationship of equals.
(3) Jurisdiction and Protection - Our nation’s borders set the boundaries for where our government’s jurisdiction and protection extend. You cannot separate the jurisdiction of our government from the protection of our government, they go hand in hand. Where the jurisdiction extends, so does the protection. Private property rights are an important topic, but the protection of those rights are only as good as the extent of the jurisdiction and protection by the government.
Remember, there is no natural right to citizenship within a particular community. That’s a right accorded by the society itself. Remember what natural rights are, they are rights that exist when there are no civil societies. So there can’t be a natural right to live in a particular civil society because those rights are not granted or do not exist with regard to a particular society. So membership in a society is a matter of compact or contract among people, and not a matter of inherent rights. A society has a right to regulate who is allowed to enter its territory. A nation to the rest of the world is a single entity. So when the citizens or governments of foreign nations look at the United States they don’t see my house, and your house, and your neighbor’s house they see the sovereign territory of the United States. And as far as the rest of the world is concerned, that simply is the United States. And the people of the United States, acting through their government, can regulate ingress into the United States just as you on your own property, your own home, or your farm, your business have the right under the natural law to regulate ingress on that property.
As a society, we have established national boundaries to define where the jurisdiction and protection of our government extends. The reason each nation establishes borders with its neighboring nations is to set the limits of its jurisdiction and its protection of its own citizens. Each nation, and therefore the citizens within each nation, agree to respect the boundaries of jurisdiction and protection of the other nations.
As members of our society, through mutual consent, we have agreed to abide by the laws we have established and we have agreed to protect the rights of each member in our society. This then begs the question, “Where does the jurisdiction of the nation extend to AND where does the protection of our mutual citizens extend to?” The answer is, to the nation’s boundaries, or borders. Our government has jurisdiction, in other words it’s laws that our citizens are bound by, to the extent of our nation’s borders, and no further. Likewise, our nation can protect the rights of our citizens as far as our borders reach, from one end of the country to the other. This covers both private property and public property.
Because the jurisdiction of our government extends within the borders of our country, and no further, a citizen in El Paso, Texas must obey all Constitutional laws as a citizen in Kansas City, Kansas does. However, as soon as a citizen steps foot outside the borders of the U.S., our nation’s jurisdiction ends and no longer covers them. This is why our nation will have to communicate with the leaders of the other nation for matters related to extradition for example.
Just as the principle of jurisdiction extends within our nation’s borders, so does the principle of protection of rights. The U.S. government has an obligation to protect the fundamental rights of its citizens within the borders of the nation, and no further. This is regardless of whether the citizen is on private property or public property. A citizen whose home, which is private property, is being invaded by burglars is owed protection by their government and will receive protection from local law enforcement to assist them in protecting their rights to life and property. Likewise, a citizen who is being assaulted on public property is also owed protection by our government and will also receive protection from local law enforcement. As a group, as a society, of individuals we are owed overall protection by our government from foreign invaders from other nations. This is the responsibility of our national military, to protect all of us within the borders of our nation. However, the protection of our nation ends at the borders. As soon as a citizen steps foot outside the borders of the U.S., our nation’s protection ends and no longer covers them. This is why our nation cannot protect a citizen who ventures into China or North Korea.
All of this being said, property rights and the protection of those rights are only possible with the principles of the jurisdiction and protection by the government within our national borders. If you eliminate the protection by our government, by advocating for unrestricted travel by foreigners into our nation across our borders, you are trampling the other principles of mutual consent and jurisdiction that are necessary for the very concepts of private property.