Why is there no right to live where you please?
The progression of a caravan of mostly Honduran migrants, now reportedly 7,000 strong, toward our southern border has inflamed America's perpetual immigration debate. Restrictionists quiver and fume about "invasion" and "assault," and we revisit well-worn controversies over amnesty and jobs, DACA and visas, crime and family separations and whether you should say "undocumented" or "illegal."
But there is a more fundamental question which, so far as I can tell, generally goes unexamined in our immigration conversations: Why is there no right to live where you please?
Of course, there are many practical constraints to an unfettered right to live where you please. As an extreme example: It would obviously be impossible (or at least extremely uncomfortable) if all the world's 7.6 billion people wanted to settle down in Florida.
But set aside for a moment the practical or logistical hurdles and have this debate on its ideological merits: Why is there not a fundamental human right to live where you want?
America's Constitution enumerates many specific rights. Its First Amendment guarantees that the government cannot interfere with our right to worship, speak, and assemble as we want. We cannot be deprived of our lives, liberty, or property without due process. We have a right to privacy and to quick trials judged by our peers.
And those are simply the most overt protections the Bill of Rights includes. It is not a complete list. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," the Ninth Amendment affirms. We have the right to marry whom we please, to have children and raise them as we please, to choose the line of work we please. Yes, these rights are imperfectly defended and subject to some regulation of disputable constitutionality. But often in practice and always in our collective national imagination, they are inviolate.
Why is there not among them a right to live where we please?
Surely choosing where to live is as integral to our lives as choosing where to work, for where we live enormously affects what we do and who we become. You might be a Republican if you'd grown up in South Carolina, or a Democrat were you a native Californian. If you'd moved somewhere else after college, maybe you'd have an entirely different spouse, different kids, a different dog.
It is difficult to overstate the chain of consequences that result from where we choose to locate ourselves. There is a reason, after all, we consider it so serious a punishment to confine someone to a place they do not wish to be or to ban them from the place they want: Prison and exile deprive us of the right to live where we please. For those of us who have not lost that right via due process, why is it not acknowledged and defended? Why would we ever accept the government — any government — telling us where we may or may not live?
If it would be unthinkable for the state to say you may not be a Baptist or a Muslim, or a plumber or a writer, or a husband or a mother, it should be equally unacceptable for the law to dictate whether you may live in Minnesota or Mississippi — or Mexico.
Let me pause here to offer a few words of explanation and caveat. First, the right to live where you please is closely related to the concept of freedom of movement (and sometimes they are used interchangeably), but freedom of movement is often more concerned with travel than residence. It is in this sense already long recognized by our courts and protected by law in America in the form of our right to unrestricted movement between the states and travel abroad with a passport.
Second, what I am describing here is not a positive right (a right to some good) but a negative one (a freedom from some evil). Just as the right to work the job you please depends on someone hiring you, the right to live where you please has practical limits: Someone must be willing to rent or sell you a place to live. "The First Amendment does not require that government supply people with printing presses," notes Peter Edgerton at the University of Chicago Law Review. "Similarly, the right to live where you want does not require that housing be supplied, it simply means government may not exclude you from an area without due process."
Third, and perhaps most crucially, to affirm the right to live where you please is not to advocate an abolition of borders, citizenship, or the restriction of certain political rights and privileges to citizens. (You could affirm both, but it is not necessary.) "People can have a natural right to freedom of movement without also having a natural right to citizenship or voting," explains George Mason University law professor Ilya Somin.
But now that the question of citizenship has been raised, it would be wise to address it outright. Perhaps you may find convincing my proposal of a right to travel and even to live where we please for Americans in America — but not for citizens of other countries who wish to live here with us. There are obviously complex financial, political, legal, infrastructural, and governmental constraints if billions of "them" wanted to come live here with the 320 million of "us." But as a general matter, the Constitution does not predicate rights on citizenship — or, when it does, it explicitly uses the language of "citizens" rather than "people."
This is not a controversial claim. As far back as 1893, in a time marked by significant anti-Asian prejudice, the Supreme Court held in Fong Yue Ting v. U.S. that Chinese immigrants, "like all other aliens residing in the United States," are protected by our laws. Foreigners in the United States have an equal right to free exercise of religion, assembly, speech, privacy, dues process, and so on. Lack of citizenship makes no difference. Thus, if we have a right to live where we want here, so do they. These fundamental rights stem from our humanity, not our citizenship.
"Undoubtedly," the Supreme Court held in 1900, "the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty." The court then had the right to travel in mind, but its words are just as true where the right of residence is concerned. The state should not be able to dictate where the people live. To permit it is to accept a sort of tyranny on par with restrictions on religion, speech, marriage, work, childbearing, and other basic human choices — restrictions we rightfully deplore.