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A Torah Perspective on National Borders and Illegal Immigration

A Torah Perspective on National Borders and Illegal Immigration

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The issue of immigration has figured in American politics for many years. Politicians have used it as a banner issue in many campaigns, and proponents of both the closed and the open door, or of amnesty or enforcement for illegals, have used their immigration stance as a defining issue.

As Jews, we are keenly aware of the need to immigrate. To those fleeing reactionary regimes in Central Europe or the pogroms of the czars, America’s open doors offered shelter and opportunity. And when America kept its doors tightly shut as the Nazi menace grew ever more deadly, we suffered the agony of those who were left to die.

Burned into our minds are images like those of the hundreds of refugees on the S. Louis, seeking to escape Hitler, being refused entrance to the United States and Cuba. Instead of being offered a haven from the storm, these Jews were sent back to Europe while Coast Guard boats patrolled to make sure no one slipped off. This is something real to us, not just an abstract argument.

But when approaching a topic as sensitive as immigration, it is important to keep in mind that policies cannot be based solely on emotion, however sincere. There must be some criteria by which we can confidently evaluate positions and give a thoughtful, critical response. The Torah offers us just such a set of criteria, based on its integrated view that every human choice is cosmically significant.

There are many questions surrounding the whole immigration debate: Do countries have the right to admit newcomers only under certain conditions? Can a country make sure that the influx of immigrants will not disrupt its own labor market? Does a country have the right to insist that its laws be respected and its culture honored?

Policies cannot be based solely on emotion.

The point of this article is not to offer a magic solution to a very complicated and sensitive problem. It is to show how many of the issues in the debate about immigration have already been discussed in the Torah, and to share the insights of these discussions. It is our belief that while every country and situation is unique, the application of Torah principles can bring some order out of the chaos of today’s heated political immigration debate.

The Morality of Borders

Before beginning any discussion about migration across borders, we first have to ascertain whether countries have the right to enforce their borders at all. While all the countries of the world assert that right,1 there are some people who say that no country has a right to exclude anyone. It is one world, they assert, into which we are all born, and all have a right to live where they choose. To interfere with that would be discriminatory and anti-democratic.

As one British barrister put it:

Controls are authoritarian. Their most fundamental assumption is that freedom of global movement by migrants, immigrants and asylum seekers is to be determined not by those who wish to move but is to be restricted by those claiming an absolute franchise and right of occupancy over where they wish to move.2

If the heavens and earth and all of mankind are created by one G‑d, what does the Torah, G‑d’s instruction manual, tell us about One World–ism? Does it recognize national boundaries as legitimate?

In the poetic song of Ha’azinu, Moses proclaims:

When the Most High gave nations their lot, when He separated the sons of man,
He set up the boundaries of peoples according to the number of the children of Israel.3

It is clear that from a Torah perspective, national boundaries are both natural and providential. They reflect a divine purpose in the world, and therefore that purpose must be upheld.

Every nation differs from every other nation absolutely in several aspects: its land, its language, its clans and its peoples.4

Such national characteristics are easily observable, though it is morally important to recognize that such stereotypes do not dictate individual behavior. Japanese and Britons wait patiently in queues for trains and buses. Compare that to the scene in a New York City subway at rush hour, or at a crowded Tel Aviv bus stop when there are only a few seats left. The Italian language is melodic, and lends itself to romantic and passionate lyrics; the German language lends itself to scientific and philosophical precision, or to the epic and the serious in poetry and song. Such generalizations reflect some real truth, which the Torah recognizes. These national characteristics, and the distinct bounded lands that give rise to them, are part of G‑d’s providential plan.

Being satisfied that the Torah recognizes the concept of borders, we can now consider the reasons people have offered for supporting and opposing keeping those borders closed, as well as the Torah’s view on the subject

The proponents for open immigration in the United States point to (among other things) humanitarian concerns, the need for inexpensive labor or labor that most citizens don’t want to do, and the energy of the self-selected who choose to come to a country because they really want to be there.

On the flip side, the proponents for limiting or denying immigration point to security concerns, worries about societal and cultural cohesion, negative influence on the sense of national purpose, exploitation of government entitlement benefits, increasing unemployment of the native population, and causing a drop in wages by increasing labor supply.

National boundaries are both natural and providential.

It is true that often the reasons given in support of a certain position have only been rationalizations masking the proponents’ own bigotry. But, granted that sound arguments can always be misused—are the reasons given in the American debate ever justifiable in the light of Torah? Which reasons, in their best presentation, are deemed worthy of consideration by Jewish law and teaching?

Security

Although the Torah’s focus is on Israel, and every country has its own unique challenges and concerns, one can nevertheless extrapolate the Torah’s view from there.

Commenting on the verse “Iron and brass are your locks,”5 which is part of Moses’ blessing to the tribe of Asher before his death, Rabbi Shlomo Yitzchaki (Rashi) explains:

The mighty men of Israel would dwell in the border towns and lock the frontier so no enemies could enter; it was as if it were closed with locks and bars of iron and brass.6

The borders posed a unique danger, and Jewish law mandated that authorities search out the real motivations of those who would enter the country. It cautioned that a deadly danger could lurk, and we should be wary of all who wish to cross it. So much so, that we are permitted to transgress the holy Sabbath for these security concerns. As the Code of Jewish Law puts it:

In a border city, even if the non-Jews approach you [ostensibly] regarding straw and hay, one must violate the Shabbat to repel them, lest they take over the city and proceed from there to conquer the land.7

Modern-day Israel, too, knows the need for stringent control of its borders. The construction of the wall separating the rest of Israel from the PA areas almost completely ended the spate of bombings that killed so many civilians a decade ago.

Obviously, the challenges facing Israel are not necessarily the same as those facing other countries such as the U.S., and they may require different and unique solutions. Mexicans and Canadians don’t pose the same threat to national security as do Hamas, Syria and Egypt. Nevertheless, the Torah recognizes that security is a real concern that needs to be addressed.

Cultural Coherence

In addition to security concerns, Jewish law recognizes that there are ideological dangers as well. Expounding on the negative commandment of not allowing idol-worshippers a holding in the land of Israel,8 Maimonides writes:

When Israel [meets the conditions for observing the Jubilee], it is forbidden for us to allow an idolater among us. Even a temporary resident or a merchant who travels from place to place should not be allowed to pass through our land until he accepts the seven universal laws commanded to Noah and his descendants, as the verse states: “They shall not dwell in your land”9—i.e., even temporarily. A person who accepts these seven mitzvot is a ger toshav, “resident alien.”10

It is not foreignness per se that is the problem, but rather a certain pernicious foreign ideology that is typified by the name “idolatry.” The reason for this is that the Torah sees idolatry as the root of evil, and portrays its effect on the Jewish nation as thoroughly destructive.11

The acceptance of the seven mitzvot is clear evidence that a person has turned away from idolatry and now accepts G‑d’s governance. It is only then, accepting the Sovereign of the land, that he can dwell in the land or pass through it.

Rabbi Menachem Meiri (1249–c. 1310) further explains that we must take a very broad view of the definition of a “resident alien” in the light of the achievements of Abrahamic religion in civilizing the world and taking it beyond the idolatrous mindset. Though he does not name the seven mitzvot, he still insists that those who enter the Land must share a belief in G‑d and a disciplined lifestyle that flows from it.12

While it is clear that idolatry is antithetical to everything that Judaism stands for, what needs to be asked in the present debate is whether there is something that is equivalent to that today that in the US. Is there something today that is equivalent to idolatry, something that poses a legitimate threat and is not just the imagining of xenophobes?

Economics

With regards to charity when there are limited resources, Jewish law sets clear guidelines for our priorities. Poor relatives come before others, and the poor of our own city come before the poor of another city.13 It is implicit that this principle applies not only to charity but to other economic questions as well, for limited resources will always require tough decisions to be made. And for tough decisions to be made well, a sound order of priorities is needed.

Limited resources will always require tough decisions to be made.

Building on this, the Talmud asserts that a community can forbid competition that is so cutthroat as to be unconcerned with its effect on another’s livelihood. Rav Huna extends this principle to restrict outsiders’ access to a town’s markets—but at the same time, he opens a door:

Rav Huna the son of Rav Yehoshua said: It is quite clear to me that the residents of one town can prevent the resident of another town [from setting up in competition in this town], but not, however, if he pays taxes to that town; and that the resident of an alley cannot prevent another resident of the same alley [from setting up in competition in his alley].14

Thus, according to this rule, a community can keep its markets closed to outsiders, unless a person becomes a member through paying taxes. By participating in the economic responsibilities of a town, one gains access to the town’s economic privileges.

Many rabbis are of the opinion that, in light of this, it would appear that Jewish law allows any Jew to move into any other Jewish community in any city or country, as long as he or she pays the taxes; the people of the city cannot stop him or her.15

However, other major voices disagree. And they read the above phrase by Rav Huna as referring to those who already pay taxes to the town, i.e., those who are already residents. Their reading allows room for what came to be called the Right of Settlement (chezkat hayishuv) to arise in Jewish law.

The Right of Settlement, as its name indicates, is a right to live in a certain place. One must possess such a right in order to settle in a city or a community; no one can act as if they may simply settle wherever they might wish, even if they join in the burden of the city by paying taxes.16

While these restrictions never applied during times of trouble or when there was a clear and present danger to the immigrants,17 in general, immigration was restricted by this rule. Advocates of this power to restrict immigration advanced several reasons in its support. Some rabbis cite the issue of the displeasure of the non-Jews with a rapid influx of Jews, and that the safety of the present community is at stake.18 Others cite economic problems: with limited economic opportunities, unrestricted immigration would take bread out of the mouths of the present community.19 Others say that it is based on the sovereign rights of the local ruler, for all political rights devolve from the ruler.20 Others cite the rabbinic mandate to seek tikkun olam—making life better by addressing current social problems that affect the lives of the community.21

What is clear is that rabbis and communities in our past shared many of the modern concerns. However, we also can see that since there were great rabbis who opposed restrictions on settling, as long as one paid taxes, and there were many communities that did not ever accept chezkat hayishuv,22 we therefore cannot say that the debate is one-sided. Hence, while the case for legitimate immigration restrictions may be strong, it must not stop us from being troubled by the distress of those who need to move, and from being spurred by their desire for freedom.

The Compact: Mutual Expectations

It is true that verse tells us that “one Torah and one law shall there be for you and the stranger who comes to live with you.”23 However, the prophet also proclaims:

Also, seek the peace and prosperity of the city to which I have carried you into exile. Pray to G‑d for it, because if it prospers, you too will prosper.24

The Bible is offering no privileges without the responsibilities of the law.

This implies that we must not only conform to the laws of the city to where we migrate, but also to devote ourselves actively to its welfare, not just merely comply with its rules. As Rabbi Yehuda Loew (Maharal of Prague) puts it:

Since the prophet commanded us to pray to G‑d for the place to which we were exiled, how could we ordain something the opposite of that, G‑d forbid, thereby transgressing the prophet’s words? To the contrary: the sages warned us to accept the sovereignty and the rule of the nations. After G‑d decreed that we should be under their authority, it is proper for us to accept their rule, and not to act as if the decree were void.25

At the same time, we are instructed that “the ger who lives with you should be considered by you as a native among you, and you should love him as you love yourself, for you were gerim in the land of Egypt; I am your G‑d.”26

Both the newcomer and the current citizen are obligated by the bonds of a common humanity to respect each other: the community by acceptance of their persons, and the immigrants by the acceptance of the community’s laws and way of life. The Bible is offering no privileges without the responsibilities of the law. Love flows from the mutual respect of those bearing shared responsibilities for a common goal.

Expectations Not Met: Illegal Immigration

Until now we have discussed instances of legal immigration. But what about someone who comes over the border illegally?

The Talmud speaks of a case in which people who refused to accept laws seem to be rewarded. This is objected to on the basis of a commonsense principle: ein chotei niskar, the sinner should not be rewarded by law for his misdeed.27

This is a principle which is found in English and American law as well, and is known as the doctrine of ex turpi causa, meaning, as Lord Mansfield put it, “No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.”28

However, at the same time we find in the Talmud a rabbinic enactment called takkanat hashavim, an enactment for the benefit of those who wish to repent:

Rabbi Yochanan ben Gudgeda testified . . . concerning a stolen crossbeam that the thief builds into a mansion, that the victim takes only the value of the beam as compensation, but may not force the thief to return the beam itself. This was enacted for the benefit of those who wish to repent.29

While strictly speaking, under biblical law, one would have to return the stolen object itself,30 the sages decreed that he may keep the beam and just pay for it, for if he were to be required to return the beam itself it would impose great hardship upon the thief, and would make any thief wishing to repent reluctant to do so.

In other words, sometimes you have to be a little lenient and have some compassion on those who transgressed the law, if you wish that they turn themselves in and repent. Amnesties in law work on the same principle—a little leniency can encourage better compliance in the end, as with the many states that occasionally offer amnesties for tax penalties, and as a result not only spare the expense and the disruption of countless prosecutions, but also collect a lot of delinquent taxes. Can the takkanat hashavim be read in this expansive way, and be applied as a support for amnesty for those in violation of immigration laws?

We also still need to ask: how might the use of the principle of ein chotei niskar apply to the modern debates over immigration? Would that balance out the principle of takkanat hashavim, or overrule it?

Would the principle of ein chotei niskar require that an illegal immigrant leave the country and get to the back of the line before being considered? Keeping in mind the principle of takkanat hashavim, would some other method establish him or her as someone now truly committed to accepting the community’s sovereign laws, or would any such flexibility undermine the credibility of the law? Would a lack of compassion undermine the community’s own commitment to the law?

Additionally, what about those who have not themselves willfully transgressed the law, such as children brought over by their parents: do we extend punishment to them as well?

It is with these lingering questions, rather than definitive conclusions, that we leave off. For it is our hope that the sources cited above have been thought-provoking, and will serve as a starting point for the policymaker and lay person alike.

Footnotes
1.

See for example Article I, Section 8 of the U.S. Constitution, clause 4: “[The Congress shall have the power] . . . to establish an uniform Rule of Naturalization . . .”

2.

Steve Cohen, No One Is Illegal (Stoke-on-Trent, U.K.: Trentham Books, 2003), p. 243.

4.

Rabbi Menachem M. Schneerson (the Lubavitcher Rebbe), Likkutei Sichot, vol. 8, p. 45. See also Genesis 10:20, 31.

6.

Commentary of Rashi, ad loc.

7.

R. Joseph Caro, Shulchan Aruch, Orach Chaim 229:6.

8.

See Deuteronomy 7:2 and Talmud, Avoda Zarah 20a.

10.

Maimonides, Mishneh Torah, Laws Regarding Idol Worship 10:6. Some, however, (see for example R. Joshua Falk, Pnei Yehoshua to Talmud, Gittin 45a) disagree, and deny that the acceptance of the seven mitzvot is a requirement. All agree, however, that renouncing of idolatry is essential.

11.

See for example Judges 2:11–13: “The children of Israel would do that which was evil in G‑d’s eyes: they worshipped the Baals. They deserted G‑d, the G‑d of their fathers who had taken them out of Egypt, and they worshipped other gods, gods of the nations around them, and angered G‑d. They deserted G‑d and worshipped Baal and Ashtoreth. G‑d became angry at Israel, and gave them into the hands of the plunderers.”

12.

Rabbi Menachem Meiri, Beit Habechirah to Talmud, Avoda Zarah 20a.

13.

Maimonides, Mishneh Torah, Laws of Gifts to the Poor 7:13.

14.

Talmud, Bava Batra 21b.

15.

Responsum of Rabbi Asher b. Yechiel, cited in R. Jacob b. Asher, Tur, Choshen Mishpat 156; and Rabbeinu Tam and Rabbi Moshe ben Nachman (Ramban), cited in R. Joseph Caro, Beit Yosef ad loc. It should be noted that this addressed the situation of their day within the Jewish community. It did not address laws of the secular authorities. Modern immigration restrictions were not in place in those days.

16.

A good starting place for information on this principle is Encyclopedia Talmudit, vol. 14, s.v. Chezkat Yishuv. See also Zerach Warhaftig, Hachazakah Be-Mishpat Ha-Ivri (Chazakah in Hebrew Jurisprudence) (Jerusalem: Mosad Harav Kook, 1964).

17.

See R. Mordechai b. Hillel, Mordechai, Bava Batra 3:147: “If refugees come to the settlement fleeing fear and danger, the residents of the settlement may not stop them from attaching themselves and making enough money to keep themselves alive and caring for their households until the fury abates.”

18.

R. Moses Isserles (Rema), responsum 52; R. Joseph Colon (Maharik), responsum 191.

19.

See Mordechai on Talmud, Bava Batra 22a. When the problem is framed as taking bread out of one person’s mouth to give it to another, it is easy to see what drove the rabbis. Making one person’s life better is a good thing—but it becomes problematic if that same act makes another person’s life worse.

20.

“All the land belongs to the [gentile] king, and his is the law for all the common folk to follow. It is they who establish that no one may benefit from their land without his dispensation.”—Rabbi Eliezer of Metz, quoted in R. Isaac of Vienna, Or Zarua, Bava Kamma 447. See also R. Solomon b. Adret (Rashba), responsum 664, and R. Moses Sofer (Chatam Sofer), Chidushei Chatam Sofer to Talmud, Bava Batra 21b. And ultimately, it is the Sovereign of the Land of Israel who does not allow idolaters in.

21.

Beit Yosef, Choshen Mishpat 156.

22.

This is especially true in light of the disappearance of the use of the chezkat hayishuv in Jewish law since the end of the ghettoes. See Warhaftig, p. 258.

23.

Numbers 15:16. It is true that this is speaking strictly about the laws of sacrifice, and of a ger tzedek (convert to Judaism). But the larger point which extends from this, and is upheld by all other biblical verses speaking about gerim, is that both the present citizen and the newcomer are bound by the one system of law (the ger toshav as ger toshav, the ger tzedek as ger tzedek). Newcomers are welcome as followers of the same law. They are not free to take the welcome of the law without the observance of the law.

25.

R. Judah Loew, Be’er Hagolah 7:6.

27.

See, for example, Talmud, Bava Kamma 38a.

28.

Holmann v. Johnson [1775], 98 Engl. Rep. 1120 (1. Cowp. 341).

29.

Talmud, Gittin 55a.

30.

See Leviticus 5:23; Talmud, Bava Metzia 66a.

Rabbi Nochum Mangel directs Chabad-Lubavitch of Greater Dayton, Ohio.
Rabbi Shmuel Klatzkin, a noted scholar, writer and educator, lives in Dayton, Ohio with Naomi, his wife of 29 years. They are proud parents of two grown children.
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Discussion (119)
November 2, 2016
Do we not atone our sins against one another?
As you say yourself, "these restrictions never applied during times of trouble or when there was a clear and present danger to the immigrants". Undocumented immigrants do not risk their lives at sea or in the desert because it is more convenient, but because it offers them and their family a better chance for survival.

We all hopefully already know how the US has contributed to turmoil in Central American through past action. If you strike a match and drop it, setting your neighbor's house ablaze, surely you cannot complain about them trespassing to leave the fire?
Anonymous
December 7, 2014
Like pikuach nefesh, asylum is an exception to the law. The US has laws granting asylum under certain circumstances which are well defined in law. I have seen little discussion about those definitions -- and we didn't speak of them save in passing, to keep focus on the immigration laws themselves, rather than their exception. So, too, the existence of the pikuach nefesh principle s crucial to know, but we must also engage in law for non-emergency situations, which we hope will be most of our lives.
Shmuel Klatzkin
Dayton OH
December 6, 2014
Yes - p'koach nefesh
I'm glad to see this discussion come to life again the subject requires all the intelligent discussion it can get.
Thank you Chaim, for mentioning p'koach nefesh - given that Torah teaches that saving a life comes before all other laws, aren't we obliged to give these kids from Central America refuge?
And A. Groban, Yes, laws always have been subject to circumstances - the US has afforded people asylum based on their circumstances since our country's founding.
Marti Wolfe
Chico CA
December 5, 2014
Mr or Ms Groban- please tell us which point and which writer you are addressing.
Shmuel Klatzkin
Dayton OH
December 3, 2014
Anarchy
Can't see your logic here at all. Are you advocating that laws apply only to some people but not all?? That when addressing the rule of the land, it should be subject to circumstances and individual interpretation? Do you understand how this type of rationalization can lead to corruption and anarchy?? Without laws and legal protection we have nothing. I for one do not want to see my country step back into the Wild West.
A. Groban
Los Angeles
August 11, 2013
This article is good as far as it goes but it does not touch upon the issue of those refugees fleeing from undoubted persecution whose life is in danger. The fact that they attempt to immigrate illegally into any country that will have them is surely totally excusable in view of the pikuakh nefesh situation in which they find themselves.
Chaim Barzell
July 3, 2013
Making Up laws is not OK
Dear Daiell,

I suggest you back up your statement by providing us with a citation to the court case to which you allude.

Without reading the case, it sound merely as if some court found that the federal law did not preempt the entire area of law regarding slave trade so that slave traders may be prosecuted for their criminal behavior under state law, just as any one may be prosecuted for violating a state's criminal statute. But, let's see your case
Rick Abrams
Beverly Hills
July 3, 2013
Understanding the original intent of the naturalization clause
In The Federalist 42, James Madison clarifies the problem the Founders were addressing with the immigration clause, and he writes that it is to make sure that laws throughout the US will be uniform with respect "both to residence and citizenship", avoiding the grave problems that were present in the Confederation, when such decisions were left to the states. When we are talking about residency, it is clear that the clause is at least intended to confer on Congress the power to regulate who can reside here even as a non-citizen. This is pretty much what most people mean by immigration. So it certainly seems that the author of the Constitution meant to delegate this power to Congress.
Shmuel Klatzkin
Dayton
July 3, 2013
Court ruling
This is indeed news -- that the Court has ruled that Congress has no authority in immigration. This would mean that the government, somehow n this instance, has been operating in defiance of the Court for some time, and yet not a peep about it! This is extraordinary -- not only an unparalleled defiance of the Court yet an absolute ignorance of this in the larger world.
To help dispel the ignorance, please supply the name of the case and a quote from the decision.
Shmuel Klatzkin
Dayton
July 2, 2013
Immigration is not naturalization
No, the Court has, indeed, ruled that immigration is not a Federal authority., in a case where it had been claimed that Article I, Section 9 (the clause about the slave trade) actually included voluntary immigration.

Therefore the 10th Amendment applies, because, yes, each Federal power -does- require Constitutional authority.

Jeff Daiell
Texas