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Fox News Senior Judicial Analyst Judge Andrew P. Napolitano

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My latest column: Immigration and freedom

By Judge Andrew P. Napolitano
Published January 31, 2013
FoxNews.com

As President Obama and Congress grapple for prominence in the debate over immigration, both have lost sight of the true nature of the issue at hand.

The issue the politicians and bureaucrats would rather avoid is the natural law. The natural law is a term used to refer to human rights that all persons possess by virtue of our humanity. These rights encompass areas of human behavior where individuals are sovereign and thus need no permission from the government before making choices in those areas. Truly, in the Judeo-Christian tradition, only God is sovereign -- meaning He is the source of His own power.

Having received freedom from our Creator and, in America, thanks to the values embraced by most of the Founding Fathers, individuals are sovereign with respect to our natural rights. St. Thomas Aquinas taught that our sovereignty is a part of our human nature, and our humanity is a gift from God. In 1776, Thomas Jefferson himself recognized personal sovereignty in the Declaration of Independence when he wrote about Nature’s God as the Creator and thus the originator of our inalienable human rights.

The rights that Jefferson identified consist of the well-known litany of life, liberty and the pursuit of happiness. By the time his ideological soul mate James Madison was serving as the scrivener at the Constitutional Convention in 1787, the list of natural rights had been expanded to include those now encompassed by the Bill of Rights. Yet again, the authors of the Constitution and its first 10 amendments recognized that the rights being insulated from government interference had their origin in a source other than the government.

This view of the natural law is sweet to the heart and pleasing to the ear when politicians praise it at patriotic events, but it is also a bane to them when it restrains their exercise of the coercive powers of the government. Thus, since the freedom of speech, the development of personality, the right to worship or not to worship, the right to use technologically contemporary means for self-defense, the right to be left alone, and the right to own and use property all stem from our humanity, the government simply is without authority to regulate human behavior in these areas, no matter what powers it purports to give to itself and no matter what crises may occur. Among the rights in this category is the freedom of movement, which today is called the right to travel.

The right to travel is an individual personal human right, long recognized under the natural law as immune from governmental interference. Of course, governments have been interfering with this right for millennia. The Romans restricted the travel of Jews; Parliament restricted the travel of serfs; Congress restricted the travel of slaves; and starting in the late 19th century, the federal government has restricted the travel of non-Americans who want to come here and even the travel of those already here. All of these abominable restrictions of the right to travel are based not on any culpability of individuals, but rather on membership in the groups to which persons have belonged from birth.

The initial reasons for these immigration restrictions involved the different appearance and culture of those seeking to come here and the nativism of those running the government here. Somehow, the people who ran the government believed that they who were born here were superior persons and more worthy of American-style freedoms than those who sought to come here. This extols nativism.

Nativism is the arch-enemy of the freedom to travel, as its adherents believe they can use the coercive power of the government to impair the freedom of travel of persons who are unwanted not because of personal behavior, but solely on the basis of where they were born. Nativism teaches that we lack natural rights and enjoy only those rights the government permits us to exercise.

Yet, the freedom to travel is a fundamental natural right. This is not a novel view. In addition to Aquinas and Jefferson, it has been embraced by St. Augustine, John Locke, Thomas Paine, Rev. Dr. Martin Luther King Jr., Pope John Paul II and Justice Clarence Thomas. Our fundamental human rights are not conditioned or even conditionable on the laws or traditions of the place where our mothers were physically located when we were born. They are not attenuated because our mothers were not in the United States at the moment of our births. Stated differently, we all possess natural rights, no more and no less than any others. All humans have the full panoply of freedom of choice in areas of personal behavior protected from governmental interference by the natural law, no matter where they were born.

Americans are not possessed of more natural rights than non-Americans; rather, we enjoy more opportunities to exercise those rights because the government is theoretically restrained by the Constitution, which explicitly recognizes the natural law. That recognition is articulated in the Ninth Amendment, which declares that the enumeration of certain rights in the Constitution shall not be used by the government as an excuse to deny or disparage other unnamed and unnamable rights retained by the people.

So, if I want to invite my cousins from Florence, Italy, to come here and live in my house and work on my farm in New Jersey, or if a multinational corporation wants the best engineers from India to work in its labs in Texas, or if my neighbor wants a friend of a friend from Mexico City to come here to work in his shop, we have the natural right to ask, they have the natural right to come here, and the government has no moral right to interfere with any of these freely made decisions.

If the government can restrain the freedom to travel on the basis of an immutable characteristic of birth, there is no limit to the restraints it can impose.

 

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