Carens states his thesis right up front, as we like it.
To most people … the power to admit or exclude aliens is inherent in sovereignty and essential for any political community. … I want to challenge that view. … I will argue that borders should generally be open and that people should normally be free to leave their country of origin and settle in another, subject only to the sorts of constraints that bind current citizens in their new country (Carens 1987, 251).
He makes his case by arguing that each of the three major views in contemporary political theory support it: libertarianism, Rawlsian egalitarianism, and utilitarianism.
Where would the libertarian state get the right to stop people at a border? It would have to be through a mechanism like the one that Locke described: all the people within a territory agreed to put their property under the state’s dominion and the state enforces the boundaries of that territory. It would be a little bit like the way private owners sometimes surround public land. While anyone is allowed to use publicly owned land in theory, if it is surrounded by privately owned land there is no way of getting to it without the permission of the private owners.
But, as Carens points out, employers in the libertarian state would surely be interested in hiring foreign labor. Would a libertarian state have the power to ban “capitalist acts among consenting adults” from different societies? It is hard to see how.
The utilitarian case for open borders is similarly straightforward. Generally speaking, people immigrate from places where they are less well off to places where they will be better off. For example, workers are typically more productive in wealthy countries than they are in poorer countries. So for the same amount of time and effort a worker can make more stuff, or produce more services, and get paid accordingly. That makes everyone better off. Consumers have more goods and services to buy and workers get paid more for their time.
Of course it is not as simple as that. There are all sorts of costs of immigration, particularly when it happens rapidly and on a large scale. But utilitarians are very good at this sort of thing. They can begin with the theoretical case for open borders and then modify the conclusion to avoid problems. Utilitarians, unlike libertarians, are not committed to the thought that people have a right to go where they want to. They think that rights are defined by the policies that would promote the greatest overall good. If too much immigration would provoke social problems, they will not allow it to go that high. They do not make sweeping claims about the moral imperative of open borders that they have to walk back awkwardly in the face of political reality. They think that we ought to do whatever produces the best results in the circumstances we actually inhabit.
Rawls and Nozick beat utilitarians over the head for being insufficiently rigid about matters of right and wrong. They are so flexible that they could allow all sorts of horrible things, including slavery! So it is only fair to allow the utilitarians to use this to their advantage when it comes to immigration policy. Utilitarians have a framework for making compromises that theories of justice seem to lack.
Carens finds Rawls’s views to be the most congenial. They also require the most complicated discussion.
Rawls cannot use the original position to settle questions about membership in a society. The original position is made up of people who represent the members of a society. So in order to know who is represented, we have to know who belongs to the society.
That said, there are plenty of arguments in Rawls’s book that seem to bear on the question of membership even if they are not part of his main theory that the principles of justice are chosen by the parties in the original position.
For example, when we discussed Rawls’s reasons for rejecting libertarianism (a.k.a. the “system of natural liberty”), we saw that he thinks it is unfair that some people should do better than others as a result of natural and social forces that are, in his opinion, arbitrary from the moral point of view. Social institutions, according to Rawls, should seek to reduce the influence of these forces or, when that is impossible, mitigate their consequences. Well, what could be more arbitrary than where you are born?
Furthermore, the thrust of Rawls’s theory is that the way to settle questions about justice is to ask what the representatives of everyone concerned would say, provided they do not know who they represent (among other things). A natural development of this idea is to have everyone in the world represented in an original position whose members are charged with determining standards for the world, including the rules about who can move across which boundaries.
Carens reasons that if this were to happen, the parties in the global original position would decide that nations are not allowed to restrict movement across their borders.
Of course, the parties in a global original position would surely overturn a lot of things. If they required all of Rawls’s principles (equal basic liberties, equal opportunity, and the difference principle) on a global scale, there would be a lot less pressure for immigration. If life is good at home, you will not have compelling reasons to want to migrate to another country.
Now, at this point you might be thinking “why are we talking about what an ideal world would be like; what does this have to do with our world?”
I believe that Carens thinks of immigration as a kind of interim step on the path to this ultimate, very distant, goal of global justice. Even open borders would have to be treated as a kind of goal that actual policy can only approximate, given the political realities of democracies.
However, it is not obvious that this is the kind of thing that someone inspired by Rawls can say. Justice is about right and wrong. It is not flexible and does not admit compromises. You would think that if enforcing the border means violating people’s rights, then the state should stop doing it right away.
I do not have the sense that Carens thinks that would be the right thing to do, given the chaos that would result, to say nothing of the inevitable backlash that would reverse the whole project. That sounds sensible to me. I just do not understand how someone who thinks that borders are unjust can consistently say it. On the face of it, to say something like that you need a more flexible moral theory such as utilitarianism.
To illustrate my point, here is Peter Singer, the well-known utilitarian, speaking on exactly this point.
Q. You’ve touched on migration here and there in your writings, and it’s part of your family’s story. But I heard you say on a podcast that we might actually have a moral imperative not to open borders, because it could lead to the kind of backlash that would put the likes of Donald Trump in power. It was a very surprising way of looking at it. What is your view on migration? What should we be doing?
A. I don’t think you should find it surprising, given that I’m a consequentialist. In an ideal world, we would have open borders, no question about that. I think that would have many good consequences and certainly would enable refugees to move away from situations of oppression and genocide. Obviously, my parents did just that, and that’s why I exist.
But I’ve seen the effect of regimes that do open borders, or nearly open borders. I was a founding member of the Australian Greens, which said that we should accept all the so-called boat people from Afghanistan and Iran and other places, who were seeking asylum in Australia in the eighties and nineties. For a time, Labor did as well. But it was clear that those issues were exploited by the conservatives to suggest that Australia was going to be swamped by different people, and I’m pretty sure it cost Labor a federal election on at least one occasion. And then you see the other bad consequences of this: not only did the borders get closed and the refugees were put in horrible detention camps, which the conservative government did, but they also opposed doing something on climate change. They cut foreign aid, they run down the hospitals and schools and universities. There is a real cost to this.
The E.U. has had to realize the same thing. You got right-wing governments in Hungary and Poland and Italy for a while. Clearly, immigration was a factor in Trump getting elected in 2016. So that’s why, as a consequentialist, I think you have to have policies that include some restrictions.
When he says “I don’t think you should find it surprising, given that I’m a consequentialist,” what he means is that consequentialists are flexible about the means they take towards achieving their ends. Someone like Rawls, who insists that justice takes priority over good consequences, has a lot of difficulty being flexible like that.
These are the things you should know or have an opinion about from today’s class.
Here are some facts about immigration.
First, immigration levels in the US are quite high.
“The nation’s 11.1 million unauthorized immigrants made up 26% of the nation’s 43.6 million foreign-born residents in 2014. The U.S. foreign-born population also included 19 million naturalized citizens, 11.7 million lawful permanent residents and 1.7 million lawful residents with temporary status (such as students, diplomats and “guest workers” in the technology sector). In total, immigrants represented 13.6% of the U.S. population in 2014. In 2014, the nation’s civilian labor force consisted of about 133 million U.S.-born workers (83% of the total), 19.5 million lawful immigrant workers (12%) and 8 million unauthorized immigrant workers (5%). The numbers of U.S.-born members of the workforce and lawful immigrant members of the workforce increased from 2009 to 2014, while the number of unauthorized immigrant workers did not.” Pew Research, Nov. 2016
Second, the population of the country under 18 is expected to be majority minority in 2020.
the population under age 10 has become minority white (white non-Hispanic) as the Hispanic, Asian, black, and other racial minority populations continue to rise up the age structure. Brookings, June 2017
By 2055, the U.S. will not have a single racial or ethnic majority. Much of this change has been (and will be) driven by immigration. Nearly 59 million immigrants have arrived in the U.S. in the past 50 years, mostly from Latin America and Asia. Today, a near-record 14% of the country’s population is foreign born compared with just 5% in 1965. Over the next five decades, the majority of U.S. population growth is projected to be linked to new Asian and Hispanic immigration. Pew March 2016
You have to be careful about what that means. The lines between ethnic groups can shift. It may well be that Americans in 2055 still think of themselves as living in a country where whites make up the majority. There will just be a lot of kids whose grandparents did not think of themselves as white in 2022. That’s a guess on my part; you will get to see how it turns out!
In thinking about immigration in the US, I think it helps to consider history; in doing so, I’m drawing on an article by Nicole Hemmer, a professor at the University of Virginia. (Nothing here is terribly controversial.)
The US had a quota system based on national origins until 1965. The quota for Asian countries, for instance, was zero or very low and relatively high for European countries. An exception was made for North America, primarily because of the demand for labor from Mexico in the western states.
The Immigration and Naturalization Act of 1965 eliminated the quotas and gave greater priority to uniting families and skills. Why? Well, racial quotas were awkward after World War II and in the middle of the civil rights movement. Here’s Hemmer.
President Lyndon B. Johnson said it [the old quota system] had “violated the basic principle of American democracy — the principle that values and rewards each man on the basis of his merit as a man.” The new immigration regime restored that principle, knocking down “the twin barriers of prejudice and privilege.”
Incidentally, the 1965 law also capped immigration from the Western Hemisphere. That messed up the system for the western states and Mexico. As the US did more to police the border, workers would cross with their families and stay so as to avoid the risk of being unable to make it back across to find work. Consequently, there are now about eleven million undocumented people who live in the US full time. The end result is that the US has a large number of people who are members of the society without having legal status that gives them protection of the law, the ability to vote, and so on.
Here is a synopsis of work on this by Douglas Massey, a professor of Sociology at Princeton University.1
“Rather than stopping undocumented Mexicans from coming to the U.S., greater enforcement stopped them from going home,” said Douglas Massey, one of the researchers and the Henry G. Bryant Professor of Sociology and Public Affairs at Princeton.
Advocated by bureaucrats, politicians and pundits, the militarization of the U.S. border with Mexico transformed undocumented Mexican migration from a circular flow of predominantly male workers going to a few states into a settled population of about 11 million in all 50 states, Massey said. From 1986 to 2010, the United States spent $35 billion on border enforcement and the net rate of undocumented population growth doubled, he said.
“By the 1990s border enforcement had become a self-sustaining cycle in which rising apprehensions provided proof of the ongoing ‘illegal invasion’ to justify more resources allocated to border enforcement, which produced more apprehensions, even though the actual number of undocumented migrants seeking entry was not increasing,” Massey said.
According to Massey, there will be far less immigration from Mexico for the simple reason that the demography of Mexico has changed.
“Mass immigration from Mexico has ended and won’t be coming back owing to the decline of Mexican fertility from 6.5 children per woman in the 1960s to around 2.2 children per woman today, roughly replacement level,” Massey said. “Labor force growth in Mexico has dropped sharply and Mexico is now becoming an aging society in which fewer and fewer people are in the migration-prone ages of 15-30, so the pressure is off in a demographic sense.”
Most migration now is legal, Massey said, a situation that will continue so long as temporary work visas are matched with U.S. labor needs.
“The greatest need now is a path to legal status for the 11 million undocumented residents who are already here, who mostly have been here now for 15 years or more and increasingly have U.S. citizen children,” he said. “If we were to grant these people permanent legal status, many would actually return home, secure in the knowledge they could re-enter whenever they want.”
When you hear about proposed legislation on immigration, chances are good that what is under discussion is a deal that would offer legal status to the 11 million in exchange for some restrictions on new immigration. Unfortunately, the two political parties have not been able to reach a mutually satisfying compromise and so the 11 million remain in limbo.
In the real world, politicians who care about the goal of global justice think it takes second place to the goal of social justice. They typically worry that attempts to achieve the former will come at the expense of the latter. Here, for example, is democratic socialist Bernie Sanders reacting with horror to the proposal for open borders.
Last year, as his insurgent candidacy began to gain momentum, Bernie Sanders sat for an interview with Ezra Klein, the editor of the Web site Vox. The political world was still figuring out what to make of Trump’s immigration rhetoric, and Klein wondered whether Sanders, who calls himself a democratic socialist, might have a more internationalist perspective. Did he support admitting vastly more immigrants, perhaps even embracing a policy of “open borders”?
Sanders interrupted, looking even more alarmed than usual. “Open borders?” he said. “That’s a right-wing proposal.” He said that it would “make everybody in America poorer,” and added that we should focus, instead, on helping “poor people” — meaning, of course, poor people in America.
Sanders’s characterization of open borders as “right wing” wasn’t without basis. In 1984, as President Reagan was pushing for immigration reform, the editorial page of the Wall Street Journal called for a five-word amendment to the Constitution: “There shall be open borders.” This is the rallying cry of the open-borders movement, which combines faith in free enterprise with a relative lack of compatriot partiality. Bryan Caplan, an economist at George Mason University, argues that it is immoral to condemn countless would-be immigrants to lives of hardship in an effort to nudge up wages for Americans who didn’t graduate from high school. He says that we should think of “low-skilled” American workers as one more “special interest” demanding favors from a complaisant bureaucracy.
In thinking about the politics of this, it is worth asking who benefits from what. For instance, I suspect the employer class likes illegal immigration very much because it yields workers with no rights. Here is an example that illustrates what I have in mind.
On some nights, after the club’s Grille Room closed, head waiter Jose Gabriel Juarez — an undocumented immigrant from Mexico — was told to clock out. … But he didn’t go home.
Instead — on orders from his bosses, Juarez said — he would stay on, sometimes past midnight. He vacuumed carpets, polished silverware and helped get the restaurant … ready for breakfast the next day.
All off the clock. Without being paid.
“It was that way with all the managers: Many of them told us, ‘Just clock out and then stay and do the side work,’” said Juarez, who spent a decade at the golf club, before leaving in May 2018. “There was a lot of side work.” …
One former manager from the Westchester club, who said he thought the undocumented workers at the club were exploited, described an environment where — in managers’ meetings — it was clear that supervisors not only knew these workers lacked authentic documents but used that information to meet the company’s cost-cutting goals. …
“You want to be here? Don’t clock in for overtime,” the former manager said, paraphrasing the message to these workers. “Clock out, and work off the clock.”
“There was a conscious effort to pay less wages, because they knew about the lack of documents,” said the former manager, who spoke on the condition of anonymity to discuss internal company policy. “You know, where are they going to go?”
Immigration is a topic that shakes up our familiar categories. On the one hand, both free-market libertarians and egalitarians who care about global justice favor open borders. On the other hand, open borders are opposed by those on the left who worry about domestic inequality and those on the right who worry about cultural change.
Carens is an egalitarian who cares about global justice. He will be joined by libertarians and opposed by egalitarians who care about social equality and conservatives who care about social change.
Small-d democrats, that is, people who care about democracy as a form of government as opposed to those who belong to the political party, are a bit of a wild card. They think that the members of a society have the right to make decisions about the society. According to them, immigration, like everything other than basic human rights and the form of government, should be up for a vote.
This is a press release about an article, “Why Border Enforcement Backfired” published in the American Journal of Sociology.↩︎