The Legacy of David Boaz

I had the privilege of working with David Boaz for four years as his staff writer, the last of a dozen or so he brought into this role over the decades to help launch our careers. Working with David was not just a job, it was an education. It was also an opportunity to become a close friend as we spent the days discussing political philosophy, history, and the ideas to which he’d devoted his life.

I was already an eager young libertarian but David’s influence shaped how I view the world in ways I didn’t expect, deepening my understanding of these concepts as not just a litany of policy positions but a coherent set of fundamental principles.

David also brought a sense of historical perspective, a remarkable way to recognize the through-lines and craft a compelling narrative. I once remarked my favorite of his books was The Libertarian Reader, his selection of historical documents and excerpts. His characteristically deadpan reply was “so, the one full of stuff I didn’t write,” with a wry smile. But I meant it, including his prefatory explanations. We weren’t just promoting a niche 20th century ideology, but a heritage of moral progress stretching back to time immemorial.

One of these principles was a phrase David liked to use in his speeches, including the last one he gave to a Students for Liberty conference shortly before his death.

Asked to define the greatest libertarian accomplishment – and to David, “libertarian” was nothing more than a radical application of liberal principles – he would initially point to the abolition of slavery. Pressed further, he hit upon the true heart of the matter: “bringing power under the rule of law.”

Unfortunately, not everyone in the fractious libertarian movement appreciates this central importance of law. Law, after all, is how the state imposes its will, how it wields its hated monopoly on force. But it is also how we constrain the state, how we replace the arbitrary rule of kings and despots with predictable rules and impersonal due process. Through the rule of law and its ultimate manifestation, constitutionalism, we find the only mechanism which has ever succeeded over the long term at securing human freedom.

The contrary temptation can be alluring to devotees of smaller government and free markets, just as much as any ideology with a firm set of policy commitments. Instead of the tedious process of public persuasion, of legislation and courts, what if we simply vested power in one man to slash the state? Such thinking is reflected in the gullibility many have had for Elon Musk’s chaotic slash-and-burn approach through his so-called Department of Government Efficiency. After all, he is indeed slashing agencies and mass firing federal employees. If it were up to us, many if not all of the same bureaucracies would be shuttered. Shouldn’t that be more important to us than the arcane proceduralism of things like the Appointments Clause, the separation of powers, and the congressional power of the purse?

As David was acutely aware, it is all too easy to succumb to the libertarian version of an enlightened despot and join a cult of the presidency, be it in Washington or far-flung capitals such as Budapest, Manila, and Moscow. To paraphrase Thomas More in Robert Bolt’s A Man for All Seasons, there is an impulse to cut down all the laws to get at the ‘devil’ of modern big government. But as he always does, the devil has now turned ‘round on us.

A government which can illegally slash programs created by Congress and upheld by the courts (even if we rightly disagree) can just as easily, as this one is, lawlessly create new bureaucracies, seize new powers, levy new taxes. A tyrant is no friend of freedom, even when there is some superficial overlap with your own preferences. The Faustian bargain never works out in the end.

David was not a moderate, as some misunderstand this kind of commitment. He was a proud radical, an unabashed “taxation is theft” libertarian. The kind who was not quite an anarchist, but whose ideal cut as close to it as he thought possible. Nor did he have any love for the Beltway political class, the elites who’d created and maintained the status quo and all its injustices and failures. He would often listen to NPR only to complain about its credulous, left-leaning coverage of the latest big government imposition.

David understood, however, it was ultimately self-defeating to attempt to win policy debates not by persuasion and through lawful, constitutional processes, but through force and arbitrary power. He was appalled by January 6th and the attempt to steal an election, regardless of his dim view of the normal business happening on Capitol Hill. David’s path to freedom was not one built on the ashes of America’s constitutional republic, but as the highest embodiment of its ideals, taking its principles of freedom and power constrained by law to their logical conclusion.

Fundamental principles aside, David was also attuned to how a lawless populist regime does not even deliver on its promises. While he rejected, as any good libertarian would, the bloated taxpayer-funded welfare and administrative state, he understood these were not the state at its worst. The “size” of government is best measured not by a balance sheet, not in dollars and cents, but in the coercive harms it inflicts on innocent people.

In the grand scheme, little tax money is spent on things like denying marriage equality to gay people, or brutally seizing peaceful immigrants for deportation, or waging the war on drugs with all its atrocities. As a portion of the government budget, they pale in comparison to transfer payments and welfare programs. In economic consequences, they matter much less than regulatory policy. But these were, he recognized, some of the most immoral uses of state power, brought to bear against the most vulnerable and marginalized.

Nothing offended David more than picking and choosing some people as more deserving of freedom than others, treating some people’s rights as important and other people’s rights as disposable. He would chastise libertarians for telling a story of ever-shrinking freedom and growing government while neglecting how the age of the Founding Fathers didn’t sound so gloriously free if you were black, or a woman, or gay, or an atheist.

As David put it, with a tone of exasperation at needing to remind people, “We believe that all people are endowed with inalienable rights, that among these are life, liberty, and the pursuit of happiness. Not just some people.” He knew the first principle of bringing power under the rule of law is every person’s right to equality before the law, from which everything else flows.

David’s deep empathy, his firm conviction all are created equal in our inalienable rights, would never let him trade people away for a reduction in marginal tax rates or a rollback of regulations. He was not afraid to buck the traditional ‘fusionist’ combination of somewhat market-friendly policies paired with social authoritarianism. And in today’s post-fusionist GOP, he saw how the balance was being tipped aggressively towards unrestrained statism and performative cruelty.

David did not indulge mealy mouthed false equivalency, the “both-sides-ism” which equated the threat of an anti-constitutional populist autocracy with the many misguided policy failures of its opponents. He’d much rather have been debating free markets and smaller government with misguided progressives, as opposed to basic human dignity and the perils of dictatorship with those on his right lurching towards fascism. But he had no doubt where his kind of libertarianism belonged in such a contest.

At the end of the day, laws and constitutions are just words. But David, who justifiably prided himself on his extraordinary skills as a writer and editor, knew words are never just words. They represent ideas, and our ability to communicate, share, and ultimately act upon those ideas. They embody our capacity for reason. If language is what separates humans from other animals, the written word is what separates our humanity from the worst of our animal instincts. The rule of law is ultimately about countering the power of violence with the power of words.

Political opportunists and power-hungry madmen come and go. There will always be those who succumb to making a deal with the devil. But the desire for freedom, the great cause of human history, will never be snuffed out completely. David carried that torch, refusing to let it be extinguished, determined to pass it to the future generations. As he concluded in his final public remarks:

David Boaz did not write much on immigration. But what he did say on the subject indicates his understanding that breaking down harsh migration restrictions should be a high-priority issue for all who value liberty.

In David’s final public speech, “The Rise of Illiberalism in the Shadow of Liberal Triumph,” he emphasized the enduring value of “equal rights for people regardless of color, gender, religion, sexuality or language. Equal rights based on our common humanity.” He warned that the liberal ideal of “inalienable rights” to a ”life, liberty, and the pursuit of happiness” for all people is “incompatible with political ideas based on 'blood and soil' or treating people differently because of race or religion.” In our time, there is no greater example of that incompatibility than immigration restrictions, which severely undermine liberty based simply on the fact that would-be migrants were born in the wrong place, to the wrong parents, or are members of the wrong “race or religion.” Severe immigration restrictions, of course, are central to the ideology of “blood and soil” nationalists in the US and Europe, the greatest enemies of liberty in the Western world today.

In a 2006 article, David praised the immigration policy of pre-Chinese Exclusion Act America, in which “there were no restrictions on immigration and thus no "illegal immigrants". There were rules governing naturalisation and citizenship, but anyone who could get here could live and work here.” That is an ideal we should aspire to return to.

In David’s contribution to National Review's 2016 “Against Trump” symposium, he wrote that "From a libertarian point of view…. Trump's greatest offenses against American tradition and our founding principles are his nativism and his promise of one-man rule." He was right then, and remains right today. Nativism – the main source of support for migration restrictions – is indeed an offense against America’s founding principles, and those of liberalism, more generally.

Among the grievances the Declaration of Independence enumerates as justification for renouncing allegiance to King George III is the following:

This complaint against the King was aimed at a series of royal orders issued in 1772 and 1773, which forbade the colonies from naturalizing aliens, banned the passage of any laws facilitating that purpose, including laws promoting migration, and overrode a North Carolina law exempting immigrants from Europe from taxation for a period of four years. It's tempting to dismiss this as just a disagreement over policy. But it actually goes further than that, since it is one of the items on the list of “repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.”

The King's efforts to restrict immigration to the American colonies were not just a flawed policy, the Declaration claims, but a step towards the “establishment of an absolute Tyranny.”

Nor was it merely a tyranny over the colonial governments' supposed right to determine immigration policy for themselves. It was also a tyrannical action towards the would-be immigrants.

Many of the leaders of the American Revolution saw the new nation as a refuge for the oppressed of the world. In George Washington’s General Orders to the Continental Army, issued at the end of the Revolutionary War in 1783, Washington stated that one of the reasons the United States was founded was to create “an Asylum for the poor and oppressed of all nations and religions.” He expressed similar views on other occasions, including writing to a group of newly arrived Irish immigrants that ”[t]he bosom of America is open to receive not only the opulent & respectable Stranger, but the oppressed & persecuted of all Nations & Religions.” Thomas Jefferson, the principal author of the Declaration, similarly wrote, in 1781, that “It [has] been the wise policy of these states to extend the protection of their laws to all those who should settle among them of whatever nation or religion they might be and to admit them to a participation of the benefits of civil and religious freedom.”

As in the case of slavery and other issues, the founders and succeeding generations of Americans have not always lived up to the high principles of the Founding when it comes to immigration. But that doesn’t make those principles any less valid.

Today, immigration restrictions are among the greatest threats to liberty in America, and many other nations. Most obviously, they block the liberty of millions of would-be migrants, consigning many to a lifetime of oppression and poverty, under the rule of brutal authoritarian and socialist regimes, such as those of China, Russia, Cuba, and Venezuela. For some, exclusion and deportation are the equivalent of a death sentence.

Immigration restrictions are also a grave menace to the liberty of native-born Americans. By blocking millions of potentially beneficial transactions between potential immigrants and natives who wish to employ them, purchase products they make, or benefit from their innovations, migration restrictions undermine the economic freedom of native-born Americans more than any other US government policy.

Economists estimate that eliminating legal barriers to migration throughout the world would roughly double world GDP, creating vast new wealth, much of which would accrue to native-born citizens of receiving countries. Immigrants also disproportionately contribute to entrepreneurial, scientific, and medical innovations, many of them literally life-saving – such as the development of new medicines and vaccines. The immigrant we keep out today might be one who would have saved your life tomorrow, if given the chance to do so.

Immigration restrictions also threaten the civil liberties of American citizens. Even under relatively conventional administrations, the weak due process protections in the immigration detention and deportation system lead to the mistaken arrest and sometimes even deportation of thousands of US citizens each year, before the mistakes are discovered. Such problems are likely getting more severe thanks to the Trump Administration’s efforts to ramp up deportation beyond previous levels.

Not only do immigration restrictions massively undermine liberty and economic growth, they also do so for terrible reasons. Historically, many immigration restrictions have their origins in racial and ethnic bigotry, as David Boaz recognized was true of the Chinese Exclusion Act of 1882, the first major US federal immigration restriction law, born of anti-Chinese prejudice.

Even immigration restrictions that are not motivated by racial or ethnic prejudice still restrict liberty based on arbitrary circumstances of birth and ancestry. State-imposed racial segregation is a grave injustice because it restricts people’s liberty based on morally irrelevant characteristics over which they have no control. Whether you are born black, white, or Asian is morally irrelevant and says nothing about how much liberty you should be allowed, including where you are permitted to live and work. As Martin Luther King Jr. famously put it, people should “not be judged by the color of their skin, but by the content of their character.”

Immigration restrictions are much the same. Whether you were born in the United States or to US-citizen parents is a morally arbitrary characteristic that says nothing about the content of your character, or how much freedom you should have. Yet such arbitrary circumstances of birth determine the fate of millions, condemning most would-be migrants to lifelong oppression and poverty.

David Boaz knew immigration policy must not be an exception to our rejection of “political ideas based on 'blood and soil' or treating people differently because of race or religion.” Almost all of our immigration restrictions run afoul of these ideals.

For these and other reasons, curbing immigration restrictions must be a high-priority issue for all who value liberty and human happiness, especially libertarians. As David Boaz recognized, this issue is also central to promoting America’s “founding principles” in our time.

If David were still with us today, he would be proud of the work on immigration issues done by libertarians such as his (and my) Cato Institute colleagues David Bier and Alex Nowrasteh. But he might be disappointed that too many libertarians continue to underrate the significance of this issue or – worse still – actually defend harsh immigration restrictions based on dubious rationales they would reject in almost any other context.

For example, libertarian-leaning immigration restrictionists love to cite Milton Friedman’s statement that “[y]ou cannot simultaneously have a welfare state and free immigration”; we must keep out many or most immigrants, it is said, lest they increase welfare state spending. This argument simultaneously misconstrues Friedman’s position (ignoring his support for illegal migration), and ignores evidence that immigrants contribute more to the public fisc than they take out. Worse still, consistently applying this reasoning would justify destroying most other types of liberty. Elsewhere, I describe how a vast range of freedoms can be used in ways that might increase welfare state spending:

The children of poor people are disproportionately likely to use welfare benefits. Even those from relatively affluent families are likely to consume public education spending.

Examples like this can easily be multiplied.

In my book Free to Move: Foot Voting, Migration, and Political Freedom (which the Cato Institute co-published with Oxford University Press, thanks in part to David’s support), I describe how many other standard rationales for immigration restrictions have similar liberty-destroying implications. If, for example, governments can keep out immigrants because they have bad political views or harmful cultural values, that implies governments should also have the power to restrict free speech and regulate cultural development among native-born citizens. Otherwise, they too might develop bad views or values! I also outline how nearly all supposed negative side effects of immigration are overblown, can be addressed by “keyhole solutions” that do not require keeping people out, or both.

David Boaz should be remembered as a great champion of universal liberal values, what he called “equal rights based on our common humanity.” Immigration is now a central front in the struggle for the great principles to which he devoted his life.

Ilya Somin is a law professor at George Mason University, the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute and author of Free to Move: Foot Voting, Migration, and Political Freedom.