You write:

The Constitution gives the federal government ultimate authority over immigration, for good reason, in my view.

Well, but this just relocates the question. If the Constitution delegates authority in such-and-such a way, what gives authority to the United States Constitution to decide the question? (I can write “Open borders and amnesty for all” on a napkin, and then write “THIS IS A CONSTITUTION FOR THE UNITED STATES” on the top of it; but obviously just writing it down isn’t sufficient to actually delegate the authority.)

If the answer is the authorization of a handful of long-dead men, who were a tiny minority of the population even at the time, then I certainly don’t see where they get the right to impose positive obligations on hundreds of millions of people today as to who should properly make decisions about whether or not to forcibly exclude immigrants from homes or workplaces.

If the answer is unanimous consent by the people currently held subject to the Constitution’s provisions, well, clearly, it doesn’t have that, any more than the particular immigration policies have unanimous consent.

If the answer is the authorization of some subset of the people currently held subject to the Constitution’s provisions (say, the majority of eligible voters or somesuch), then, again, the question is what right one group has to dictate terms to the other group, who does not authorize or consent to the terms.

Both here and in my next point, a question for you is whether a federal compact like the Constitution represents a contract, obligation, and statement of purpose that carries significant weight for you, and if so (as I provisionally assume it does), how much.

A contract between whom? If it’s a contract among individual citizens of the United States, or between each individual citizen and the government, then it is certainly nothing of the sort: I never signed it, was never asked to sign it, and have never been expected to sign it before its terms would be inflicted upon me. I expect the same is true for you. Personally, if I had been asked to sign it, I certainly would have refused, if that meant I would not be held to its terms.

If the compact is understood as a contract among something other than individual citizens — say, among the governments of the several states — then it might very well count as a contract, but then it’s entirely unclear how it gains any authority to settle political questions for either individual citizen, or would-be immigrants, unless some other compact, contract, or other relationship independently establishes an obligation by those individual people to the governments of the several states. I for one never authorized any of the several states to act as my agent, or to contract obligations on my behalf, so if they have a binding contract amongst themselves or with the federal government, then I still don’t see, as yet, how that has anything to say about who I may or may not welcome onto my own property.

Taking care not to imply that immigrants are a “bad”, there’s still the possibility that one locality’s decision will affect its neighbors willy-nilly in ways they perhaps should not have to accept.

I’m not clear on what you have in mind here. Could you be more specific what kind of effects you have in mind that people should not have to accept?

I mean, after all, suppose that all the people in my neighborhood (E. Rochelle Ave.) want to have a very welcoming policy towards would-be immigrants, while all the people the next neighborhood over (University Ave.) wants to keep them all out. If we voluntarily choose to invite immigrant guests into our homes and apartments, to rent or sell land to them, to invite them to work in our shops, etc., while the people on University choose to turn them away, refuse to rent or sell to them, refuse them employent, etc., and if the different policies in each neighborhood are consistently respected, then how exactly does our welcoming policy on Rochelle “affect … willy-nilly” the exclusionists over on University? The immigrants won’t be in their homes or workplaces or renting neighboring property. The only effect is that if people from University want to come over to Rochelle, then they will encounter the immigrants that we have invited to live and work with us. But while I sympathize a great deal with people having to deal with unwanted effects on their own property or in their own communities, I have very little idea why I should care about whether or not people in one neighborhood get their way about how other people should use their own property or what communities other than their own community ought to look like. If the question is properly devolved, then I can’t imagine how it is any of a University resident’s business how we live over here on Rochelle; let alone any business of somebody in New York or Washington, D.C. who I choose to live or work with here in Las Vegas.

Call me crazy, but “states rights” and “local polity trumps all” seem to me to often be a smokescreen for “let us mistreat people the way we want to, come hell or high water.”

I’m not defending a “states’ rights” position.

While I think that, when there are disagreements between states over immigration policy, different states should be able to enact different policies, I also think that, when there are disagreements within a state over immigration policy, different communities should be able to enact different policies, and different neighborhoods within a community should be able to enact different policies, and, ultimately, different individual people should each be able to enact different policies about the use of their own homes and workplaces. I agree that many people who have defended “states’ rights” position use it as a smokescreen for shitty treatment of other, less powerful people within their state. But that’s precisely because they stop devolving the question once they get to the level of the state. Thus, for example, defending the right of states to peacefully secede from the jurisdiction of the federal government, but then turning around and insisting on the supposed right of state governments to brutally crush any efforts by enslaved Southern blacks to peacefully secede from the jurisdiction of state governments or their local taskmasters. The problem there was too little devolution and secession, not too much.

My whole point, on the other hand, is not to fetishize the claims of any particular level of centralized political authority (such as state or even municipal governments), but rather that the question should be devolved downward until you reach genuine consensus on the localized question — if necessary down to the neighborhood; if necessary down to the individual property-owner.

Thus, on the Civil War and the abolition of slavery, I think that the right approach for Northern whites to take would have been, first, the Garrisonian strategy of cutting all political ties with the slaveholding states — thus allowing for the repeal of all Fugitive Slave Laws in the North, removing Northern bayonets from the Southern slavers’ arsenal, and moving the line of freedom from Canada south to Ohio. And then, second, the Harriet Tubman and John Brown strategies of aiding slaves in their efforts to escape slavery, instigating and providing aid to slave uprisings, and aiding efforts to create autonomous Maroon communities within the South. That is to say, strategies that focused on solidarity with black people struggling for their own freedom, rather than strategies which focused on white political prerogatives, or on “saving” black people from slavery through the outside intervention of a white-led, white-manned, white-controlled military engaged in a conventional war of invasion and conquest. Solidarity-based strategies like those proposed by the radical abolitionists could, I think, have ended slavery with substantially less bloodshed (and especially less collateral damage against non-slaveholding Southern whites), and with substantially more empowering results for Southern blacks who had been empowered to fight for and win their own freedom, rather than having to depend on the goodwill, ongoing concern, and military campaigns of Northern whites for it. Indeed, I think that those strategies probably could have averted the dreadful century of immiseration, dispossession, lynch law, and American apartheid that ended up following the formal emancipation, precisely because the Northern white political and military apparatus ended up dropping that goodwill and that concern, and selling out Southern blacks, in the name of “reconciliation” with Southern whites.

To return to open immigration and “undercutting legal labor markets,” I think there’s a basic problem in the way you’re framing the issue. It’s true that, under certain circumstances, when large numbers of poor immigrants move to a particular community, the average wage for existing native-born workers will tend to go down as a result of competition. But the average wage for the immigrant workers goes up from what they could have expected had they not moved; after all, that’s generally why poor immigrants move long distances to begin with. But the status of the native-born workers as “legal” residents can’t be used as part of the justification for making a legal distinction between native-born and immigrant workers, without simply making the argument circular and thus begging the question. And if we are discussing some other difference between the two — like a difference in nationality, or language, or ethnicity, I don’t see how any of those could make the standard of living among the relatively more privileged native-born workers somehow more important than the standard of living among the relatively less privileged immigrant workers. Certainly U.S. workers deserve a decent standard of living, but so do Mexican workers, and it’s not at all clear to me why the former should be able to force the latter out of the country in order to support their own standards of living at the expense of Mexican workers’ standards of living. I think there is no way to treat this sort of market dynamic as a reason for excluding Mexican workers (say) except by tacitly or explicitly accepting the nativist premise that the lives an livelihoods of U.S. workers somehow matter more than the lives and livelihoods of Mexican workers, just because the one group are from the U.S. and the other group are from Mexico. Which claim I find morally and politically indefensible.

(For myself, I’d say that the best solution is to empower all workers, regardless of race, nationality, language, ethnicity, or any of the other lines which are used to divide us. But that’s best accomplished by means of fighting unions that organize the entire working class, and by transnational labor solidarity, not by means of political gamesmanship and immigration policies which protect the wages of one group of workers only by means of screwing other, even more vulnerable and exploited groups of workers out of homes and jobs that they’d otherwise be able to get.)

Does that help clarify?

Thomas,

You write: “This seems like blaming the chickens for the fox’s raid on the chicken coop.”

I’m not sure what you mean. I don’t blame rank-and-file workers for the way the NLRB functions. I blame the politicos, the “Progressive” bosses, and the conservative union bosses who pushed to create the system. (Radical unions, like the I.W.W., rightly opposed the system as an effort to promote conservative unionism and to capture and domesticate unions through a combination of government patronage and government regulation.)

You write: “Rightly administered and empowered, NLRB ought to be a counterweight to moneyed and propertied interests that have no interest in worker’s rights.”

Two things.

First, I have no confidence in anyone’s ability to craft a regulatory agency that successfully resists being substantially captured by the interests that it regulates. I can’t think of any example in the history of American regulatory bodies where this has been pulled off for any length of time, and I don’t think it should be particularly surprising that, since political entities respond to political incentives, they will tend to be administered in a way that systematically benefits the wealthiest and most politically-connected people.

Second, even if the NLRB were ideally administered, the system is designed from the ground up as a means of constraining union demands and restricting unions to the most conservative and least effectual methods. (Thus, the Taft-Hartley bans on secondary strikes, secondary boycotts, union hiring halls, wildcat strikes, etc. etc. etc.; thus the emphasis on a heavily regulated process of collective bargaining, controlled by very elaborate legal requirements that are often next to impossible for rank-and-file workers to understand, in place of extremely effective and very simple to understand tactics, like work-to-rule and other forms of direct action in the workplace.)

You write: “At least for legal representation, that — in theory — is already the case, isn’t it?”

Well, not entirely — you can choose one lawyer rather than another, as long as you can afford their fees, but you can’t choose anyone as your advocate except those who have been officially approved for membership in the government-created and government-regulated lawyer’s guild. But lawyers weren’t the “experts” I was referring to; I was referring to the fact that the government forces people to take legal disputes before specific judges (with jurisdiction fixed by the issue in dispute and by accidents of geography), and excludes other no-less qualified and impartial experts from taking up the dispute simply because the privileged judge has a particular political status and the other would-be arbitrator doesn’t. If we are really talking about a form of specialized expertise here, like that of the watchmaker or of the doctor, then anyone should be able to take the case, not just a judge deemed to have that topic and that location within his bailiwick by the government.

You write: “I don’t see how to bid out for police functions, though, without that turning into yet another part of society baldly favoring the rich and privileged over the poor and disenfranchised.”

Well, I don’t know. Isn’t that already how government policing works?

Tax funding doesn’t prevent government cops from treating poor people pretty shitty, or from acting as an instrument of class power. In fact, the fact that poor neighborhoods have no real control over who provides policing in their neighborhoods, and no way of cutting off their portion of the funding for neglectful or abusive police forces, is part and parcel of the problem.

Anyway, I’m not sure what you mean by “bid out for police functions.” If you mean the government outsourcing policing to private security corporations (Wackenhut, Blackwater, whatever), I’m not for that, and I don’t consider it an example of free market self-defense. I think that all government involvement in policing (whether in-sourced or out-sourced) should be abolished.

If you mean individual people choosing to cover the costs of policing, and having a choice about who, if anyone, they get police services from, then I don’t think there’s any guarantee that the result will be (even more) plutocratic policing. It’s true that, if all policing were based on free association and not on government monopoly, there might well be some policing that is done by private goon squads for hire, and those might have an incentive to favor the rich over the poor. But (1) again, I’m not convinced that they’d have more of an incentive to do so than government cops already have; and (2) there are lots of other ways of using free association to get self-defense and neighborhood defense done. For example, the Black Panthers and the Young Lords organized historically oppressed people to arm themselves, and to patrol and defend their own neighborhoods (including defending them from the predation of abusive white cops). In any case, where there are many, competing and countervailing associations that serve defensive functions, if one association becomes especially neglectful, or, worse, predatory, against marginalized people, other associations can move in to compete, or new associations can be formed, to check the first. But when policing is monopolized by a single institution, there is no real reason for them to try to please anybody outside of their firmest base of support (in the case of political monopolies, that means the ruling class–as is confirmed by how police departments already operate today). If they don’t please marginalized people, why would they care? They stay paid anyway, and there’s no countervailing force to hold them to account for their abusiveness.

My own view is that the need for any form of professional policing at all would be dramatically less in a free society than it is in the present day. (For example, in a free society there would be no drug laws, vice laws, or border laws, and thus no narcs, no vice cops, and no La Migra. There would also be much less entrenched urban poverty, because — for reasons I discuss in the Freeman article — ghettoized urban poverty as we know it is largely a function of interlocking government interventions against poor people’s survival strategies and attemtps to flourish through creative hustling; hence much less economically motivated crime, and also much less of certain kinds of antisocial behavior. So, again, this is, to a great extent, a problem that vanishes along with the needless government laws and endless government “wars” on consensual behavior, which I already favor abolishing. But, even if the demand for specialized policing were to remain just as high as it is today, I still think that it is far, far better to have a situation in which people are free to withdraw their support from abusive agencies, and where there are many acknowledged experts to keep each other in check, than a situation in which people are forced to pay for their own abuse, and in which cops are never held to account for wrongdoing by any means other than “handling it internally” and issuing the occasional “Oops, our bad”.

Thomas,

Thank you for your kind words.

You write: “But I also think there’s specialization and craft in these pursuits, just as there is in, say, cabinetmaking or watchmaking.”

Probably so, although I’m inclined to think that there is, or ought to be, much LESS specialization and craft than the professionalized government enforcers and judges would have you believe. To be sure, the government laws that are on the books today are tremendously complicated and require years of specialized training and practice to even begin to get a good grip on a relatively small specialty. But I think that that’s precisely because the people who make and use the laws have a political and a professional interest in making those laws extremely complicated, and in having them cover an extremely wide and not very well defined scope of human affairs. Libertarians and anarchists believe that regularized enforcement should cover a much more precisely delimited and a much, much smaller field than it currently does, so to some extent the problem vanishes along with the laws that libertarians and anarchists believe ought to be abolished.

For example, labor relations law as it presently exists is extremely complicated — it requires making a lot of very fine distinctions, balancing many different prerogatives granted to and regulatory limitations imposed upon unions, individual employees, and employers, etc. etc. etc. It takes a lot to even understand the basics of the situation, and the tricky details of a concrete case often can’t even be resolved without hashing out the issues in bureaucratic negotiations through the NLRB or in federal court. But the complexity of the legal situation is clearly a function of its being channeled through the federal regulatory bureaucracy. That situation clearly benefits NLRB bureaucrats and professional labor lawyers; it’s much less clear that it benefits the rank-and-file workers for whose benefit this sort of thing was supposedly constructed, but who are substantially deprived of any real control over the process by putting so much of it into the hands of professional legal experts. If agreed-upon norms of justice and enforcement were (as anarchists believe that they should be) limited only to the issue of protecting innocent people from being attacked by physical force, or vindicating their rights after the fact if they should be attacked — with all the rest to be handled by free contracts between the individual parties, unregimented by a government bureaucracy, and by whatever forms of nonviolent leverage and activism that the creativity of organized workers and a fighting union might devise — then it’s much less clear what need for specialization or professionalization there would be. (There might still be a lot of need for impartial arbitrators; but impartiality is distinct from technical expertise, and is something you can get by finding any third party of good will and good sense for the duration of the arbitration; it doesn’t require a distinct class of professional arbitrators.)

Generalizing from that case, I agree with Lysander Spooner that if the realm of enforcement were strictly limited to questions of interpersonal justice, then, quote:

“No objection can be made to these voluntary associations upon the ground that they would lack that knowledge of justice, as a science, which would be necessary to enable them to maintain justice, and themselves avoid doing injustice. Honesty, justice, natural law, is usually a very plain and simple matter, easily understood by common minds. Those who desire to know what it is, in any particular case, seldom have to go far to find it. It is true, it must be learned, like any other science. But it is also true that it is very easily learned. Although as illimitable in its applications as the infinite relations and dealings of men with each other, it is, nevertheless, made up of a few simple elementary principles, of the truth and justice of which every ordinary mind has an almost intuitive perception. And almost all men have the same perceptions of what constitutes justice, or of what justice requires, when they understand alike the facts from which their inferences are to be drawn.

“Men living in contact with each other, and having intercourse together, CANNOT AVOID learning natural law to a very great extent, even if they would. The dealing of men with men, their separate possessions and their individual wants, and the disposition of every man to demand, and insist upon, whatever he believes to be his due, and to resent and resist all invasions of what he believes to be his rights, are continually forcing upon their minds the questions, Is this act just? or is it unjust? Is this thing mine? or is it his? And these are questions of natural law; questions which, in regard to the great mass of cases, are answered alike by the human mind everywhere.”

–Lysander Spooner (1882), Natural Law, or the Science of Justice, section 4. http://www.panarchy.org/spooner/law.1882.html

And I would follow up your second point by urging that it is dangerous, and to some degree irresponsible, to adopt large-scale systems of law and practice that practically require ordinary citizens to abandon the questions of political and interpersonal justice to a privileged, insular, and easily corrupted class of specialists.

But, secondly, I would also argue, further, that even if the requirements of justice ARE complicated enough in some particular case that it requires some specialized training and expertise to sort them out, or where correctly applying and implementing them requires specialized training and expertise in something else (e.g., for enforcers, training and expertise in de-escalating potentially violent situations may be a form of specialization well worth having), that seems to me like an argument for leaving the field open to many specialists, who can offer their services to anyone who is interested in retaining them (e.g. many private associations for arbitration and/or defense, which people go to on the basis of choice rather than being forced to go to one in particular on the basis of fixed territorial monopolies). Not so much an argument for limiting the field to a single fixed, institutionalized class of specialists (e.g. a government court or a government police force with rigidly and exclusively defined territorial or topical jurisdictions).

The first (non-monopolistic) solution really would make the business of law a skilled trade or profession, much like watchmaking or medicine, where people go to acknowledged experts freely, but aren’t forced to choose one particular expert on the basis of political status, and can choose another, on the basis of their own considered judgment and comfort levels, or for that matter can still choose none at all, if they decide to hazard the risks and trouble of doing it for themselves.

The second, monopolistic solution doesn’t make the business of law so much like skilled trades and professions, but rather like a feudal or command economy, in which people are assigned particular experts and forced to turn matters over to that particular expert rather than another, on the basis of the political status of the experts rather than on the basis of broadly and consensually acknowledged expertise. It’s that which, as an anarchist, I really object to.

Does that help? What do you think?

Thomas,

Thank you for the kind mention, and for the thoughtful comments.

You write: “Henley says that the challenge is to ‘correct spontaneous malign orders without the tool of state violence.’ I’m not sure that circle can be squared — some countervailing force is needed against spontaneous malign orders, and that force will need some agreed on norms of justice and enforcement”

There are a couple of different kinds of malign spontaneous orders that need to be differentiated here.

The first are malign undesigned orders that emerge, in part, from diffuse forms of violence — what I called “invisible fist” processes, as with the socio-cultural ripple effects of stranger-rape and other prevalent forms of violence against women.

The second are malign orders that don’t emerge from diffuse forms of violence, but rather from voluntary interactions. Unlike some libertarians, I believe that there are plenty of examples of these, too (for example, certain kinds of widespread credentialism and elitism that have emerged over the past century, and which have a big effect on education and on the workplace). These malign undesigned orders are often intimately connected with social orders that have coercive elements (for example, I’d say that certain pernicious forms of credentialism and managerialism, which contribute to classism and to the exploitation of working folks, have an awful lot to do with consistent government intervention on behalf of the managerial class and against the deskilled proletariat over the past century — cf. for examples my essay “Scratching By” at http://www.fee.org/publications/the-freeman/article.asp?aid=8204 or Kevin Carson’s Mutualist Blog at http://mutualist.blogspot.com/) — but, while intimately connected, are not identical with them (it’s likely that even without that government intervention they might live on through institutionalized cultural prejudices, unless deliberately confronted and undermined).

Libertarians and anarchists can consistently endorse the use of physical force as part of the response to the former (violent) sort of undesigned order; they can’t consistently endorse the use of physical force as part of the response to the latter (non-violent, but still ugly) sort of undesigned order.

In the second case, though, I ought to stress that not abandoning the use of force doesn’t mean abandoning the use of confrontation or hardball tactics–they just have to be carried out through tactics and institutions outside the political arena, the legal arena, or the regulatory bureaucracy. (On what should be done instead, I’m really an old Leftist at heart: I think people should form fighting unions and community organizations, build counter-institutions and mutual aid societies, use targeted and general strikes, boycotts, work-to-rule, hardball forms of social ostracism, stage sit-ins, etc. etc. etc. Forget about the government; we can do this ourselves.)

In the first case, the use of countervailing physical force in defense of self or others is defense, not aggression, so it need not offend any libertarian or anarchist sensibilities (unless one is a principled pacifist–which I’m not, and which most libertarians and anarchists aren’t either). You worry that “that force will need some agreed on norms of justice and enforcement.” I’m inclined to agree with that (although we might disagree on what the importance of “agreement” is here). But supposing that we do agree, I don’t think it tells against Jim’s point. Agreed-upon norms of justice and enforcement aren’t in and of themselves a problem for anarchism or libertarianism. The question is how the agreement on those norms is brought about: whether the agreement comes about by general acquiescence to privileged demands, or whether it comes about by means of a broad consensus among equals.

Government ensures “agreement” upon these norms by erecting privileged institutions which are legally empowered to force everyone else to acquiesce to the norms they propound and act on.

Anarchy, on the other hand, doesn’t mean chaos or the break-up of any agreed-upon norms of justice or enforcement. (At least, that’s not what “anarchy” means in the mouths of anarchists who use the term.) What it does mean is that any agreement upon those norms should be brought about through the free interactions among equals and by the emergence of a broad social consensus.

Further, anarchists generally believe that that kind of consensus can rightfully be acted on by any free association that puts reasonable norms for justice and enforcement into practice — rather than being limited to a privileged class of government-approved cops, judges, etc. The idea here being that the justice of judgments and the righteousness of enforcement are things that ought to be assessed on the merits of the conduct itself, not according to the identity or the political status of the judge or the enforcer. That is to say, that it should be considered as a matter to be resolved by appeals to the content of the norms, rather than to the political status and prerogatives of the body propounding them.

So the ideal here is not to abolish any general norms of justice or enforcement, but rather to keep the ideal of consensus on norms while detaching the crafting of the consensus from the imposition of exclusive government-granted prerogatives.

Does that help clarify, or does it muddify?