National Security Cannot Be Achieved By Eroding Property Rights

The term “national security” is something of a misnomer. The safety of all lies in the securing of the safety of one. In other words, individual cases matter. This is nowhere so well evidenced as in cases where the media and certain pandering partisans condemn the brutal criminal behavior of a single illegal immigrant (as is proper) and extrapolate it to paint immigrants with a broad-brush as some sort of invading mercenary force (as is improper.)

The power of this argument lies in its ability to appeal to the most fundamental of human fears: destruction, particularly born of violence, and particularly born of violence instigated by others. So long as death and decline — which generally precedes death — can be invoked, anything is justified in the name of preservation. This is the morality of barbarism.

But its protection of the individual is inconsistent at best. Those who invoke the national security rationale as an unassailable justification for intrusive government action do so under guise of protection of individual rights. They advance the tired old collectivist platitude that none are safe if one is unsafe. Security, supposedly, comes through the stability of state, whose power is necessary to secure the free exercise of rights.

But if this is true — if the security of the whole is merely a reflection of security attained for each constitutive member of the polity — how then can national security be achieved when the actions taken under its guise run roughshod over individual rights?

Construction of the border wall is not making America safer. Just as construction of Bush’s border fence in 2007 (yes, the idea of a barrier at the border precedes the unparalleled genius of Donald Trump) resulted in agents of the federal government exploiting eminent domain and ignoring the property rights of those whose land happens to abut the nation’s southern border, so too will construction of Trump’s border fence.

A short documentary produced by ReasonTV does a fantastic job illustrating a few specific cases of individuals who have effectively ceded control over their property simply because it happens to be border-adjacent.

Particularly troubling is the fact that sections of the border wall will cut across contiguous privately-held properties, effectively making it impossible for individuals to access their own property. It is one thing to argue that aliens who flagrantly ignore U.S. law ought to be excluded from the country for which they have shown little respect, but is rule of law really served by effectively excluding individuals from their own property?

By denying the government access to people’s persons, houses, papers and effects without a warrant issued only on demonstration of probable cause, the Fourth Amendment affirms the individual’s de facto right to privacy. Various measures, including the Real I.D. Act, a post 9/11 measure signed by then-President Bush, have carved out exceptions to these inalienable rights. Customs and Border Patrol has heightened search and seizure powers, which lower the level of scrutiny agents of the government must meet when taking invasive actions, inside the “border zone,” defined by 1950s regulation as land lying within 100 miles of the physical border. The Real I.D. Act specifically gave CBP the right to, without warrant, access private-land within 25 miles of the border. This means roughly 65% of the U.S. population effectively have no functional Fourth Amendment rights. The real perfidy of this type of regulation is that it does nothing to change the inalienability of rights, merely to alter the way in which they can be exercised, which — as citizens supposedly rely on the stability of the U.S. government to be ensured their rights –supposedly renders moot opposition to aggressive federal actions done in the name of security.

This is quite the paradox: securing the free exercise of rights requires ceding the free exercise of rights.

The emphasis placed on the public interest, particularly as a force that overrides more narrow private interests, is hardly novel. Article I, Section 8 of the Constitution gives Congress power to:

“exercise legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.”

In Federalist 43, Madison argues that the supremacy of federal control is justified under what is effectively a national security rationale: “Nor would it be proper for the places on which the security of the entire Union may depend to be in any degree dependent on a particular member of it.”

But the security of the entire union does depend on its particular members. A body is not healthy if one of its parts is diseased; the whole is the sum of its parts. If the cost of national security is the weakening of the rights of even one individual, then the citizenry is not secure. The injustice done to one citizens is an outrage; the precedent this sets is a long-term exigent threat to individual rights. If one is insecure, all are insecure.

National security cannot come if property rights are eroded. If the National Butterfly Center loses agency over its own property and loses access to its own property, this is a much greater threat to the nation than the bogeyman of violent illegal immigrants. The federal government is actively working to suppress individual rights under the guise of rule of law. It is sending a message that the wrongs done to the vast minority of individuals — when considered against the populace as a whole — are irrelevant in the face of national concerns, even as it holds up the unfortunate fate of individuals as the catalyst behind sweeping national policies. There can be no rule of law when government behaves this way because it is actively deciding whose grievances are deserving of redress and whose can be dismissed as irrelevant to the cause of the greater good.

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All content protected by copyright. The Politics of Discretion, 2016.
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