Is There a Right to Immigrate?
Here, I explain how immigration restrictions violate individual rights.*
[ *Based on: “Is There a Right to Immigrate?”, Social Theory and Practice 36 (2010): 429-61. ]
1. Starvin Marvin
Marvin is hungry. He plans to walk to a nearby marketplace, where he would be able to successfully trade for food. Sam, however, shows up with his M16, deliberately blocking the road and demanding that Marvin go back. As a result, Marvin is forced to return home emptyhanded, where he starves.
Q: Did Sam harm Marvin? Did he violate Marvin’s rights? Did he act wrongly?
The answer to all three questions is obviously yes.
What does this have to do with immigration policy? There are many people suffering poverty or oppression who would like to remedy those problems by moving to the U.S. There are people in the U.S. who would be happy to trade with these people, hire them, rent them housing. But almost all of them are prevented from reaching the U.S. by armed guards hired by the U.S. government. As a result, they continue to suffer poverty and oppression.
On the face of it, the U.S. government’s behavior seems wrong in a way similar to Sam’s treatment of Marvin.
2. The Simple Argument
Individuals have a prima facie right to be free from harmful coercion.
Immigration restrictions are harmful and coercive.
The reasons in support of immigration restrictions are (normally) insufficient to override the prima facie right against harmful coercion.
So immigration restrictions are (normally) wrong.
Re: premise 1: It’s normally wrong, for example, to shoot people, beat them up, or threaten to do these things to them. This is best explained by a general right against harmful coercion. I say “prima facie” because even such behavior can be justified in special circumstances, e.g., if it is necessary to hurt one innocent person to prevent World War III.
Re: 2: Immigration restrictions are not voluntary; the state hires men with guns to enforce them. Hence, they are coercive. They are also harmful, as shown by the Starving Marvin example above.
Re: 3: The reasons in support of restriction are discussed below. Qualification: (3) and (4) apply to normal people who are seeking to migrate for innocent reasons (e.g., escaping poverty and oppression), not terrorists or other criminals. There is no dispute that the overwhelming majority of migrants are normal people, as described.
3. Objections
Objection 1: Maybe immigration restrictions do not count as harming potential migrants; rather, they merely refuse to benefit potential migrants. This might be true because the goods that migrants are prevented from obtaining are goods that would have been provided by the U.S. itself; in general, preventing someone from obtaining a good from yourself counts as failing to benefit them, not harming them.
This matters, because many people in ethics think that it’s easier to justify failing to benefit than to justify actively harming.
Reply: See the Starving Marvin example above. Sam does not merely fail to benefit Marvin. Rather, he actively intervenes to prevent Marvin from remedying a problem. This counts as harming Marvin. Similarly, when the state actively intervenes to prevent migrants from being hired by American employers, it harms them.
About goods that would have been provided by oneself: Granted, the U.S. government is preventing migrants from obtaining benefits from the government (e.g., Welfare payments), and that counts as mere failure to benefit, not harm. But in addition, the government prevents migrants from obtaining benefits from private parties. That counts as the government’s harming the migrants.
Objection 2: If you have a club, the current members have the right to decide who else is and isn’t allowed to join. A country is like that: the current members have the right to decide who they do and don’t want to join them.
Reply: This analogy proves too much. It implies that any constraints that members of a private club could impose on membership would also be legitimate for the state to impose. So, e.g., there could be a private club for people who (a) never criticize the government, (b) never vote if they are female, (c) don’t own guns, or (d) cut off their left arms. Therefore, it would also be legitimate for the government to make laws that (a) no one may criticize the government, (b) no one may vote, (c) no one can own guns, or (d) everyone has to cut off their left arm.
4. Reasons for Restricting
Since I wrote the paper, immigration has become more of a hot button issue, and the arguments have changed somewhat. But immigration restrictions have been in place for many decades, and traditionally, the most common argument was the first one below.
4.1. Jobs
It is said that immigrants “steal American jobs”. More precisely, immigrants compete with low-skilled American workers, which (slightly) lowers their wages and makes it harder for them to find work.
Reply: Imagine that Sam tried a similar justification in the Starving Marvin case: Some of Sam’s nephews and nieces were going to be trading in the marketplace, and Sam feared that if Marvin got there, he might slightly bid up the price of food, which would slightly economically disadvantage some of Sam’s nephews and nieces. To be a good uncle, Sam decided that he had to forcibly stop the competition from arriving.
Or take a closer analogy. I’m competing with you for a job, for which I know that we are the only two finalists. When you’re about to go to your job interview, I intercept you with my M16 and order you to return home so that you miss the interview and I get the job.
These actions are clearly wrong. They illustrate that you don’t have a right against normal marketplace competition, and the desire to prevent such competition does not override the prima facie right against harmful coercion.
4.2. Culture
It is said that immigrants threaten to change our culture in ways the current citizens may not like.
Reply: Compare Sam’s analogous argument: Marvin speaks a different language, wears different clothes, and worships a different god from most of the people currently in the marketplace. Sam was concerned that if Marvin reached the marketplace, he might influence the current patrons to adopt some of his practices. Therefore, he decided to forcibly stop Marvin from getting there.
Again, this seems obviously wrong. This illustrates that you don’t have a right to have people around you practice a particular culture. Nor is it permissible to harmfully coerce people in order to secure something that you don’t have a right to.
4.3. Special Duties to Current Citizens
It is said that the government has special obligations to its current citizens, whereby it must prioritize their interests over those of foreigners. This is why it’s okay to ignore the interests of potential immigrants.
Reply: Sam also has special duties to his nephews and nieces. (Note: If you don’t care about nephews and nieces, change it to Sam’s sons and daughters.) Yet this doesn’t mean that Sam has the right to forcibly stop other people from competing with his nephews and nieces in the marketplace.
Special obligations can curtail your personal prerogatives, but they can’t curtail the rights of third parties. Hence, you can’t justify harmful coercion merely by saying that it benefits someone to whom you have special duties.
4.4. Prioritizing the Poor
Some would add that the government is obligated to prioritize the interests of its poorest citizens in particular. Immigration benefits most Americans, but it disadvantages some of the worst-off American workers.
Reply: Again, even if the state has special duties to the poorest Americans, these would have to be discharged within the constraints provided by other people’s rights. That is why, e.g., the government could not steal money from poor Africans in order to give it to the poorest Americans. As argued above, immigration restrictions violate foreigners’ prima facie right against harmful coercion. So special duties to poor Americans cannot justify this.
4.5. The Impending Flood
Some believe that, in the absence of immigration restrictions, a vast sea of immigrants would flood into America, completely overwhelming us and causing societal collapse. Philosopher Brian Barry suggested that a “quite conservative estimate” would be that a billion migrants would enter the country.
Reply: My guess would be closer to 20 million over the next several years. This is based on the number of people worldwide who have, as of now, actually made at least some effort to enter the U.S. but were not permitted by the U.S. government to do so. (When I looked up numbers, 9 million people had applied for the Diversity Visa Lottery and another 4 million were on the immigrant visa waiting list.) Note also that the U.S. government need not, and would not, pay for transport or housing for potential migrants. A billion people worldwide do not have a way of getting to the U.S.
I expect that the U.S. could easily (eventually) accommodate many more immigrants than we currently have. Note that we have had much higher immigration rates (as a percentage of the population) in the past. Note also that our current population density is less than a quarter of China’s.
Having said that, a reasonable intermediate position would be to simply increase the annual quota for legal immigration—say, to a few million a year (it’s currently about 1 million). This would greatly benefit millions of people each year, without the danger of the country being overwhelmed by a billion people.
5. Conclusion
Immigration restriction may be the most harmful policy in the U.S.; there are literally millions of lives that would be drastically improved if we lost these restrictions.
Why are the restrictions so popular? Mostly because of nationalism, which includes a tendency to discount or ignore the rights and interests of people of other nations. This is analogous to (but not literally the same as) racism: racists discount or ignore the rights and interests of people of other races. We’ve long acknowledged the error of racism, yet we still accept nationalism. It’s fine for a politician to say, for example, “America is the greatest country on Earth”, in a way that it is not at all fine to say, “Whites are the greatest race in the world”.
Yet the nation you happened to be born in is no more under your control, and no more morally significant, than the race you happened to be born with. You could just as well have been born into a poor and oppressive society; it was merely luck that you were born where you were. Your good luck doesn’t seem like a reason for discounting the rights or interests of those who were less lucky.
Preventing someone from trespassing on my property is not necessarily a harm. When is it a harm? When should that override my property right?
All roads and other transportation infrastructure belong to someone. If they all unanimously refuse to allow Marvin to use their infrastructure to pursue his needs, can we say they have harmed him? How many or few options does Marvin need access to for their refusal to count as harm? So long as he has one viable effective alternative, other refusals might count as inconvenient but not harmful.
Only when all gatekeepers, however many there may be, agree that Marvin can’t pass would the harm take place. But this seems odd. If there are 100 alternatives, whether or not they are responsible for the harm depends on what others, perhaps one other, have done, not what each have done themselves. If I refuse and someone else allows Marvin to pass, I have done no harm. If no one else accepts him, we have all done harm. But only one person has done something different.
J.C. Lester has tried to address some of these questions in his book Escape from Leviathan. E.g., someone escaping from a natural disaster has a right to trespass. I am not entirely satisfied by his account, though my criticisms are too vague to include here. I prefer to think that disaster victims are still liable for trespassing, or any other torts they create, and should compensate the victim if a dispute results. But that leads to further questions: what sorts of defense am I entitled to raise against such trespassers? If I am obligated to allow them to pass, what is the basis of my obligation?
Bernard Gert's framework might be relevant, in that he allows that rules can be broken in emergencies if done “publicly.” I was not able to satisfy myself as to exactly what that involves, but I assume it means that many people know about the violation and regard it as a valid exception to the rule. Is Marvin facing an emergency?
Perhaps if I knew more about ethical intuitionism I would be able to answer all these questions.
You suggest that the club analogy "proves too much," implying that any constraints a private club may impose on membership would also be legitimate for the state. However, this is not what the analogy implies. Rather, it illustrates that just as individuals and private associations have the right to determine with whom they associate and whom they admit as members, states likewise have a right to political self-determination.
The right to free association is a robust liberty right that significantly limits the scope of unrestricted movement—whether it be an individual entering my home or an immigrant crossing national borders. Given that different liberal rights inherently constrain one another, state self-determination arguably serves as a crucial mechanism for resolving coordination problems that arise in the absence of predefined metaphysical limits to these rights.
Admittedly, certain grounds for exclusion may be morally questionable and reflect poorly on those invoking them. However, we generally extend similar liberty rights to individuals—for instance, when someone refuses a marriage proposal for explicitly racist reasons. At the same time, there are also strong justifications for exclusion, particularly when it serves to safeguard the foundational principles of liberal democracy, foster social cohesion, and preserve local cultures—all of which contribute to social meaning and stability.
Your Marvin example, on the other hand, approaches cases where the right to exclude reaches its limits—namely, individuals seeking to cross national borders under conditions of imminent threat, such as political dissidents or members of persecuted ethnic, religious, or sexual minorities. Excluding such individuals would arguably exceed the moral boundaries of free association and be ethically indefensible, much like it would be impermissible to deny entry to someone seeking refuge in my home if they were severely injured and in urgent need of medical assistance.