The Ethics of Immigration symposium: Social Membership and Territorial Rights

by Michael Blake on May 30, 2014

I

There is a wonderful passage in Julian Barnes’s Flaubert’s Parrot, in which Barnes expresses his anger at a dismissive critic of Flaubert:

All in all, it seems a magisterial negligence towards a writer who must, one way and another, have paid a lot of her gas bills. Quite simply, it makes me furious. Now do you understand why I hate critics?

I have had this passage in mind while I have been reading Joseph Carens’s book. I have written several articles about Carens’s view of immigration, and much of it has been critical. I take it that Barnes’s point is that we must express a certain sort of respect towards those we make the subject of our critical attentions, given how much we would be at sea without them. This seems exactly right, given how much I owe Carens; I would never have started thinking seriously about immigration had he not thought so seriously, and so well, about it first. One way or another, Carens has paid a lot of my gas bills, and done a lot more besides; he has been more gracious, both in print and in person, than he has ever needed to be. His book summarizes and extends his thinking about immigration, and I have come to respect that view and its creator enormously. It is not my view, but it is the very best the field has produced, and I hope I have not treated it with negligence.

In what follows, I am going to ignore much of the dispute I have had with Carens over the moral permissibility of exclusion, and focus on a topic found primarily within the first half of the book: the idea of social membership, and what rights can be adequately grounded in that idea. My arguments here are going to be similar to those made by Ryan Pevnick in his own post, although I hope I will make them in a slightly different way.

II

The idea of social membership does a great deal of work for Carens in the first part of his book. The simple facts of residence and time are understood as proxies for rich networks of social belonging – for, that is, particular relationships to places and persons, to particular forms of social institution and to particular polities. These social forms of membership are understood as sufficiently important that those who have them must be given what is needed to go on having them; those who are members in fact, that is, ought to be given what is needed to go on being members, including the legal right to remain within their places of residency. This idea grounds a great many specific guarantees Carens endorses, including birthright citizenship for children, residency rights for the undocumented (after a certain number of years), and a general hostility to long-term guest worker status. I share Carens’s belief that social membership is morally important; I am not convinced that it necessarily has the implications Carens describes. We might imagine that there are two distinct stories of how social membership ought to lead to legal rights to remain:

(1) Social membership is so important that it can never be rightfully taken away; after social membership is established firmly established, the circumstances under which it began become irrelevant. Social membership is a factual matter, not a legal one, and law must respect social membership – which, on this view, “does not depend upon official permission.” (150)

(2) Social membership is so important that it creates a presumption that it ought to be permanent; this presumption, however, can be overcome – when, for instance, there is a freely made agreement to forego the right to maintain that membership; or, when that social membership was wrongfully acquired, by means of a freely made decision to break a just law precluding access to the territory on which that social membership was developed. On this view, social membership is an important good, but one that can sometimes be rightly forfeited.

I think that some version of the latter view is right; Carens believes that the former is correct. I think we ought to note, first off, that the two views will agree on a great deal. Children, for example, are not capable of freely making decisions of the sort imagined here; Marguerite Grimmond is not rightly subject to deportation. I would also note, further, that the second view is importantly incomplete. It depends upon a story about what makes it rightful for a state to exclude outsiders, and when, and how. My purpose here is not to develop such an account, but to show that some such alternative to Carens’s view might exist, and might have its own attractions.

One such attraction, of course, is that we accept in many other areas of life some version of this view. Lives built on morally faulty foundations may sometimes be legitimately undermined, even at great cost to the one whose life is disrupted. Katherine Ann Power, for example, escaped from custody after a violent bank robbery, and lived as a fugitive for 23 years; she built a life during those 23 years that included a family, education, and a career – all the things that Carens identifies as the markers of a life that cannot be rightly taken from one who lives that life. Power was, of course, made to do just that, and was imprisoned after turning herself in. The point here is not that those who cross the border without right are criminals; as I will discuss, many of those who emigrate without right are fleeing objectionable forms of poverty or oppression, and we have good moral reasons to extend amnesty to those individuals. My only concern is that the passage of time is not enough, in isolation, to establish the right to remain. The fact that imprisonment would disrupt the life Power built during two decades as a fugitive does not make that imprisonment wrongful. Power’s imprisonment might look cruel, or unnecessary; the best version of that claim, though, would say that we have reason to extend mercy to her after seeing the peaceful life she has built – not that we are not within our rights to respond to her crime with imprisonment. Neither can we say that Power’s crime should be regarded as too far in the past to bother with. Contrary to Carens’s suggestion, the statute of limitations generally finds its justification in the fact that evidence, over time, tends to decay – not in the psychic needs of those who have broken the law. The general point, then, is that an individual can sometimes do something to make the life she has created justly subject to disruption. The fact that social membership is valuable to the member in question does not exhaust our moral evaluation; sometimes, that membership can be rightly sacrificed, if there is a good enough reason for us to demand that sacrifice.

We might imagine, then, that there are some circumstances under which a life built within a place is, as it were, justly subject to disruption; if, in particular, the individual makes a free decision to accept that disruption, or a decision to break a justified law precluding entry. Imagine two possible cases to fix our intuitions; both of these are based on real persons, although both are pseudonymous:

(1) Morgan, an artist from Vancouver, enters on a tourist visa, but stays in Portland, working construction jobs to pay for his artistic ambitions. He makes this choice because construction pays more in Portland than in Vancouver, and because the arts scene is better in Portland than in Vancouver. He stays in Portland for ten years.

(2) Molly, a student from Edmonton, enters on a student visa, which allows her to stay within the United States for the duration of her studies. Upon the end of the dissertation, she is obligated by the terms of her visa to exit the United States. She is now reaching the end of her program, after ten years spent as a graduate student; she has no desire to return to Canada.

I take it that Carens would extend to both Morgan and Molly the right to stay within the United States. I would not; I share with Carens the conviction that social membership is morally relevant – but I am convinced that there are cases in which the right to such membership can be rightly alienated. Molly, for instance, seems to have no particular right to stay in the United States, even if all her friends are here. The simple fact is that she agreed, against a fair and free backdrop, to forego the right to stay, and all the relationships she made here should be viewed in light of this agreement. To hold her agreement here as null and void seems oddly disrespectful of her as an agent; allowing people to give up rights in the name of other goods is often a way of demonstrating respect for persons. I can sign myself up for the army, or become a parent – both of which are big decisions, and both of which might lead to some regrets down the line. We allow people to make these decisions, though, and feel these regrets, because the alternative is to undermine freedom to make such decisions for ourselves. Here, Molly is a grownup, and faces no particular oppression or injustice in Canada; she can decide for herself if being educated in another country is worth the social costs of temporary residence.

Morgan seems to have even less of a right to stay. If he is coming from a reasonable set of circumstances in Canada, then he has freely chosen to build a form of life for himself on a set of foundations to which he has no particular right. I am not sure why liberal politics should feel any need to protect him from the consequences of that decision. To use Ronald Dworkin’s language, this seems like a case of option luck, not brute luck; he is making a bet that he will not be discovered and deported. If he is, I do not think he is wronged. He will doubtless experience pain from the deportation, but not all forms of pain constitute forms of injustice. It is, instead, as if he had chosen to create artwork on someone else’s walls. If the rightful owner of the property chooses to paint over those walls, Morgan will experience pain, and perhaps the owner ought to exercise mercy and allow Morgan to take his artwork home. But Morgan is not wronged by someone who refuses this mercy. Morgan has chosen, freely, to build on foundations he had no right to claim as his own, and all the consequences of that decision should fall rightly on him.

III

This may look rather abstract, and unfair; we are rightly concerned with Miguel Sanchez, and not with Morgan or Molly. That, though, is the point I am trying to make. We are concerned, in the case of Miguel, not simply with what he has built here, but what pushed him to leave his home in the first place. Many of the people who become irregular migrants, or work temporarily in another country, are deeply disadvantaged, and willingly accept what look like terrible terms of employment simply because their alternatives are so bad. (Carens spends some time, after all, going over the terrible circumstances under which temporary laborers tend to work; part of the reason this matters, I think, is that only the truly disadvantaged would seek out such terrible jobs.) If this is true, though – and I think it is – then we have occasion to extend our analysis, from the simple metric of time spent in a place, to something more complex, involving not simply the pain of deportation but the circumstances under which the decision was made to cross the border or to accept temporary employment. Miguel, for example, may be facing objectionable forms of poverty and violence in his home country, and a choice between crossing the border and remaining in poverty and oppression. I think the second version of social membership, as described above, can account for our reactions here; we are likely to think that Miguel’s choice is considerably less free than, for instance, Morgan’s choice, and that our reactions to it ought to be different as well. Morgan and Molly might be rightly regarded as making their choices against a backdrop of attractive and morally acceptable alternatives; they are rightly held accountable for their choices. To view Miguel in the same light seems an evasion of reality.

I believe, then, that Carens’s simple metric, on which time spent in a place is enough to establish a claim to residency, isn’t quite enough to tell us which people do in fact have a right to remain. There are many people who spend a lot of time in a place, but have no particular right to remain there. (If we wanted to look out beyond Morgan and Molly, we could consider the tax-avoiding phenomenon of “permanent tourism,” in which the wealthy live year-round in a low-tax country, while their money lives on and grows elsewhere. Why do we think these people have a right to remain, simply because they have made friends with the locals?) There are many other people whose claim is considerably stronger; the grounds for that, though, must be some idea both that their social membership is morally significant, and that the circumstances under which they acquired that membership do not negate their rights to that membership. This is messier, perhaps, and perhaps harder to instantiate in law – although I am not sure that it would be impossible; careful legal drafting might enable us to get closer to what morality here actually demands.

I do, in conclusion, disagree with Carens about the moral value of social membership. I agree with his overall conclusion about Miguel, although for reasons that are distinct from his own. I am more convinced, though, that once again Carens is deserving of our thanks – and my thanks in particular – for having started this conversation; I look forward to disagreeing with him for years to come.

{ 10 comments }

1

Matt 05.30.14 at 1:51 pm

Hi Michael- as you can probably guess, I’m almost completely in agreement with you here. I’ll add some points that I think are friendly additions or clarifications.

1) It’s important to make clear that even if we accept the moral of your “Molly” story (as I at least mostly do), that this doesn’t tell us all that much about what sort of immigration policy is pragmatically or practically justified. I’m at least sympathetic to the argument, for example, that people who earn advanced degrees in the U.S. should be able to remain permanently with only modest formal conditions. (Assuming here no special obligation to return home of the sort found in US K visas, or justified by reasons of the sort Caleb was interested in in Chris’s first post, perhaps.) But, this is justified not by considerations of rights, but because the expected return is high. In lots of discussion on immigration, the fact that something would be a wise (or foolish) policy isn’t distinguished as clearly as it should be from questions about rights. (*)

2) A lot of these cases are made messy because not only the (putative) rights of migrants, but also rights (and interests) of current members, are involved. Most societies recognize, as they should these rights in relation to family membership. Some people argue that these sorts of connections with current members should extend beyond family ties. I’m not especially sympathetic to that argument, but it’s not crazy, and certainly influences how we feel in these cases. (I do think that family ties should be given more weight in removal proceedings than they are in the US, and some of the arbitrary distinctions removed or lessened. I’m not sure how this works in most other countries.) But it’s important, essential even, I’d say, to distinguish the rights of the current (lawful) members and the rights of the would-be member or migrant here if we want clarity on the subject. (I don’t think _you_ disagree, but this distinction is often missed, even in discussion by smart people, so I want to highlight it.)

(*) In discussion of immigration policy and many, perhaps most, other actions by the state, I do think that feasibility isn’t fully distinct from acceptability or justice. (My thinking here is heavily influenced by Joseph Heath and Charles Larmore, among others.) But, there is still a distinction to be made between what rights one has and what would be a better or worse policy to follow in given cases. Obviously, more would need to be said than it reasonable to do here.

2

Luke 05.30.14 at 3:43 pm

“The simple fact is that she agreed, against a fair and free backdrop, to forego the right to stay, and all the relationships she made here should be viewed in light of this agreement. To hold her agreement here as null and void seems oddly disrespectful of her as an agent; allowing people to give up rights in the name of other goods is often a way of demonstrating respect for persons.”

I confess that I don’t follow this line of reasoning. It seems to assume a very warped idea of human agency and necessity. Also, this:

“The idea of social membership does a great deal of work for Carens in the first part of his book. The simple facts of residence and time are understood as proxies for rich networks of social belonging [...]“

“Rich networks of social belonging” is an idea that itself is doing a lot of work. It seems to be conjuring some immaterial idea of national community, versus the reality of material life.

3

SamChevre 05.30.14 at 7:34 pm

I confess that I don’t follow this line of reasoning.

Think of the argument that homosexuals should be allowed to marry. We show respect for their agency as persons by allowing them to give up a right (to date whoever they want if that person agrees) for another good (a stable and recognized relationship with a specific partner.)

4

Kenny Easwaran 06.01.14 at 4:46 am

I agree with Luke here. Some rights we really do have the ability to give up. But others we shouldn’t. I can sell my property, and therefore give up the right to control it. I can even sell some hours of my labor. But I can’t sell myself into slavery. Nor can I forfeit the right to emergency medical care in exchange for permission not to buy health insurance or otherwise participate in the tax-supported medical system. Why shouldn’t those of us who believe in open borders think that Molly’s visa agreement was just one of those immoral terms to a contract that therefore should be unenforceable?

I think the case of Katherine Ann Power is interesting here. It indicates that we think there are circumstances in which membership in a community is a right that can be taken away, which then is supposed to soften us up for the claim that it can be signed away as part of a contract. But I’m not sure why it’s relevant to this point that the crime was committed 20 years in the past. Doesn’t a contemporary crime show this just as well?

As I understand it, the claim is supposed to be that just as a past crime can make one’s community membership liable to be terminated, so in Morgan’s case, the fact that the community membership was founded on a violation of a law could make it liable to be terminated. But I’m still not convinced that the analogies run deep enough.

Still, I think these are really interesting cases, and they make me consider these issues in ways that I haven’t before.

5

Matt 06.01.14 at 5:03 am

Some rights we really do have the ability to give up. But others we shouldn’t. I can sell my property, and therefore give up the right to control it. I can even sell some hours of my labor. But I can’t sell myself into slavery. …Why shouldn’t those of us who believe in open borders think that Molly’s visa agreement was just one of those immoral terms to a contract that therefore should be unenforceable?

Here’s an important difference: if you sell yourself into slavery, you can no longer exercise any of your basic rights on your own say-so. You’re no longer a full moral person for practical purposes. (Slavery is sometimes referred to by scholars as “social death” for this reasons.) But, Molly’s situation isn’t anything like that- even if she has to leave the US, she can go have a perfectly good (maybe even better!) life in Canada, where she can go exercise her rights and moral powers. What she gives up is some of her preferences being satisfied- but she did that willingly, in a way people do all the time. Giving up having some of your preferences being satisfied isn’t at all like selling yourself in to slavery- not even close, I’d say. So, it seems that the burden here is on those who would want to suggest that this is one of “those immoral terms to a contract that therefore should be unenforceable”. I’ll admit that I don’t find any of the arguments for this claim even remotely plausible, but it does seem that the burden falls on those who want to make it, and this analogy won’t go far at all.

6

Ed Herdman 06.01.14 at 6:13 am

Following SamChevre’s analogy, this doesn’t mean that we force people to stay married or, perhaps a better match for the analogy, force them to cohabit under the same roof – they entered into an agreement after all! We’re running a government here, not the Catholic Church position on marriage (which is itself arguably a special case). Of course respect for agency doesn’t mean that we can make a counterfactual about what might have happened true – we can’t get rid of regrets – but it does seem to me to mean that we shouldn’t unnecessarily block off choices without good reasons. That effectively denies people the opportunity to make continuing use of their reason and agency – limiting reason and agency to an immature, early appraisal at one point in time is tantamount to not allowing reason and agency to work. It’s an iterative process.

The other obvious point here is that the agreement is entered into between Morgan or Molly and not another person, but a political entity which has fairly little at stake, especially in comparison with the individual.

In the aggregate, the harm done to the political entity by Morgan or Molly wining an alteration of that agreement is far less (if it even exists in the aggregate, let alone in the individual statistic!) than that done to Morgan or Molly by denying the alteration, claiming “you pays your money and you takes your chances.” What is missing here is what circumstances really could be admitted as mitigating.

Surely Michael agrees with me a bit of the way – we both agree that there are factors that allow altering the bet when it comes to light that a person has need. Interestingly, Michael seems to need to argue that this basic constraint on the process should hold true regardless of the policy arguments that prompted limitations on immigration in the first place. So, tell me, if the nation decides that there can only be 315 million persons in the United States, and asylum seekers x, y, and zed are three people over 315 million, does that mean we need to push some already naturalized citizens out of the country?

Well, of course not.

So I think that to make the case against Molly and Morgan sensible you have to show what harm is being done by them specifically, to find the upper boundary on permissiveness. We can start by agreeing that prospective shoe bombers probably don’t have a right to stay here. But talented graduate students and artists?

To be clear, I agree with the general premise – there are certainly logically plausible reasons for denying an extended stay (harms done to the political entity they entered into agreement with), but “it was a fair and free backdrop” does not bring any apparent answer to the table. What’s more, it’s laughable – if this was any other kind of legal contract, it’d be easily challenged as a contract of adhesion. One side has all the bargaining power; the “fair and free choice” here is that Morgan or Molly are only afforded a very limited horizon within which to realize a lifetime’s worth of dreams and ambitions, for no apparent purpose at all save nativist protectionism and political posturing about the same. Without a tacit realization that the balance is severely shifted to the faceless machinations of bureaucracy and politicization, rather than avoiding harms to the host entity, and without more compelling reasons, it is far more likely that opportunities for abuse will be realized than any actual protection of the system.

As a final note, the attempts to compare X with Y cropping up here and in another thread on immigration, as if one can start to sanitize something truly awful by placing an episode from America’s dark history on a pedestal and saying “but this other thing was really truly, truly awful,” are starting to make me feel nauseous. In another thread we saw people arguing that the ‘social death’ (interesting term!) of years of migrant ambition in detention was nevertheless Not Such A Big Deal, because of a totally unrelated (and certainly repulsive) other event in American history (the corralling of Japanese-Americans in concentration camps). If there ever was a time to invoke the slippery slope, this was it.

7

Ed Herdman 06.01.14 at 6:16 am

Shorter me: Time spent in an area tells us a lot more about a person’s claim to stay there than “the contract is sacrosanct” tells us about why to chuck them out.

8

Ze Kraggash 06.01.14 at 7:38 am

“Molly, for instance, seems to have no particular right to stay in the United States, even if all her friends are here.”

This is kind of important, though, that all her friends are here. Social integration. I’d say after 10 years and with all her friends here Molly has a legitimate claim to permanent residency or citizenship. As opposed to someone who stepped off a plane yesterday. Or Morgan, who (sounds like) is here mostly for the money. We may not want Morgan.

9

Ed Herdman 06.01.14 at 7:48 am

“We may not want Morgan.”

Why Hip-Hop Sucks in ’96

10

Michael Blake 06.03.14 at 6:12 pm

A few, halting attempts at defending myself:

I think I would draw a stronger distinction than Matt between what it is wise to do, and what it is morally permissible to do. I don’t think states benefit from harsh exclusionary policies; I also think many of those policies are morally impermissible. But the former doesn’t explain the latter. Sometimes, a state is well within its rights to refuse someone, even if the state would benefit from their presence – and if that person would benefit from continued residency.

The reason for this is that – on my view, at least – if the rightful response to the violation of a justified law preventing access is deportation, then that deportation is rightful, whether it happens quickly or not. That’s the point of the Power example: if the rightful response to her crime was prison, then that’s what we are right to give her, even if prison now would be more damaging to her than it would be had she been imprisoned right away. The fact that she has built a life here does not, in itself, make the state response impermissible. It may give the state a reason to hesitate, to extend mercy, but a state that refuses to do so is not being unjust.

So it is with migration. If the state is right to exclude Morgan – and that’s a big if – then it’s also right to expel him after he’s been here a long time. (If Morgan is an asylum seeker, as Ed imagines, the case is really rather different – the right of the state to exclude him fails from the beginning.) The life he’s built is not enough reason to prevent that expulsion’s being rightful. It’s not just that Morgan’s in it for the money; it’s that he doesn’t have a right to what he took, at least if the exclusionary laws that precluded him were permissible.

As for the issue of respect for Molly: I don’t know that I have a good response here – but I do think that there’s something a bit disreputable in the attempt to save Molly from the consequences of her contract. We throw around terms like “contract of adhesion,” but in law, most of the time you have to pay your bills to Comcast – even though you hardly have the chance to negotiate terms with Comcast on equal footing. (You could avoid using Comcast, of course, but Molly could similarly have done her PhD in Canada.) If Molly joined the (Canadian) military, explicitly signing up for a particular term, she could hardly claim after the fact that she had a right to leave because she was unhappy and missed her friends back home; maybe the military has a reason to let her go, but it’s not wronging her if it refuses that. I continue to think that there’s something respectful about allowing this sort of exchange, even if I can’t adequately express why it seems more respectful to me than the alternative.

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