The Ethics of Immigration Symposium: The Theory of Social Membership

Let me begin by saying that The Ethics of Immigration is a wonderful book and that it is a terrific pleasure to participate in this celebration of its publication.  This is exemplary political theory: it addresses issues of fundamental importance to democratic societies and does so through clearly reasoned and provocative challenges to widely held positions.  Partly because of Carens’s unusual ability to sort through complex terrain in ordinary language, the book is a fantastic example of the way that political theory can clarify and contribute to democratic debate.

I

Although Carens’s work is best known for its defense of open borders, I have discussed those arguments at length elsewhere and, so, will use this space to raise some questions about the first part of the book.  There, Carens works under the assumption that the state has the right to restrict immigration and asks about the appropriate treatment of newborn children, permanent residents, temporary workers, and undocumented migrants.

While Carens has written on these topics in other places, one of the great features of the book is that it allows one to appreciate the way in which those discussions are linked by a simple and intuitively attractive theory of social membership.  Carens argues that:

What matters most morally with respect to a person’s legal status and legal rights in a democratic political community is not ancestry or birthplace or culture or identity or values or actions or even the choices that individuals and political communities make but simply the social membership that comes from residence over time…. [Most people] develop deep and rich networks of relationships in the place where they live, and this normal pattern of human life is what makes sense of the idea of social membership. (160)

Over time, people develop relationships in a community, they formulate aims and plans that are shaped by their place within it, and they come to identify as members.  Although it is one’s social connections that matter morally, the passage of time is a useful legal proxy because it prevents political officials from having to establish, on a case-by-case basis, the extent to which an individual has developed connections to a particular community.  Thus, Carens’s claim is that over time people come to have a fundamental interest in being legally recognized as members of the community in which they live.

II

There are many questions to be asked about this theory.  Briefly consider two.

First, what should we think about individuals who neither form, nor wish to form, social connections?  Perhaps an individual moves to a cabin in very rural Montana with the specific intention of avoiding social connections and relationships.  According to Carens, such an individual is nevertheless entitled to citizenship.

The recluse who is the descendent of several generations of citizens is still a member of society, not because of her ancestry but because of where she lives.  The immigrant recluse has the same claims to social membership.  (168)

But, since the recluse does not have the kinds of social connections that are supposed to justify claims of citizenship, this remark seems to suggest that it is not the “rich networks of relationships” that justifies granting individuals citizenship.  What, then, is it?  And if we are willing to depart from the theory of social membership in this case, how can we be confident that it is correctly guiding us in other instances?

Second, we should ask how the theory applies in other contexts.  For example, I have taught at New York University for some 5 years now.  I have forged relationships, acted as a member of the community, built expectations around the assumption that I will continue to be an NYU faculty member, and so forth.  Still, although some might think it sad or unfortunate if NYU dismissed me, few would think that it loses the right do so once I forge sufficient social connections.

Similarly, I doubt whether length of membership allows one to resist being tossed out of one’s religious congregation or country club (regardless of the importance of the relationships built there).  Doesthe simple fact of social connection confer a right of membership on individuals in any context other than the state?  Should we be concerned about a theory that would seem strange or out of place in other contexts?

These questions suggest that:

1. Social connections are not always necessary to establish membership; and

2. Social connections are not always sufficient to establish membership.

If this is correct, we cannot just assume that difficult cases can be unproblematically addressed by applying the maxim that “social membership matters morally” (158).  It would therefore be tremendously useful to have a clearer account of how, when, and why social membership is morally important. So, despite its strong intuitive appeal, there are many further questions about Carens’s theory of social membership (regarding its basis, limits, and extension).

III

Having now raised some initial questions about Carens’s theory of social membership, I would like to consider his application of this theory to issues concerning the appropriate treatment of irregular (e.g. illegal) immigrants.

Given what we have said, it should not be surprising that Carens’s view is that:

The moral right of states to apprehend and deport irregular migrants erodes with the passage of time.  As irregular migrants become more and more settled, their membership in society grows in moral importance, and the fact that they have settled without authorization becomes correspondingly less relevant…. The implication of this analysis is that states … should establish an individual right for migrants to transform their status from irregular to legal after a fixed period of time of residence, such as five to seven years.  (150-151)

So unlike those who think of membership as a two way street (requiring the consent of the potential immigrant and the political community), Carens argues that people who enter a country illegally nevertheless become members of that society after sufficient time has passed.

Carens argues for this position, in part, by presenting two examples:

1. Marguerite Grimmond was born in the United States, but moved to Scotland with her mother while very young.  She does not leave Scotland until going to Australia on a family vacation at the age of 80.  However, she never legally established the right to be in the United Kingdom and, upon her return, it refuses to grant her reentry.

2. After having difficulty finding work in his home country of Mexico, Miguel Sanchez illegally enters the United States.  After a couple years, he marries a US citizen with whom he then has a child (now six years old).  U.S. law gives Sanchez no feasible path towards legalization and, as a result, his family lives in constant fear that a routine traffic stop or similar encounter with law enforcement could lead to his deportation.

Our intuitive unwillingness to accept deportation in these cases carries a lot of argumentative weight for Carens.

Unfortunately, the examples are not ideal because one can accept the view that immigrants in these particular circumstances ought not to be deported without thinking that irregular immigrants come, as a matter of course, to have a right to remain after being in the territory for a number of years.  For example, one might think that although illegal immigrants do not automatically become entitled to stay in their new country after a period of time, it would be wrong to deport individuals whose illegal immigration was not their responsibility (as in Grimmond’s case) or ones whose immediate family members are citizens (as in Sanchez’s case).  So, it is possible to agree with Carens about the specific examples without accepting his broader theory of social membership.  As rhetorically powerful as the examples certainly are, they do not uniquely support Carens’s position.

The other main consideration that Carens gives for his position on irregular migration is that it follows from his broader theory of social membership: the longer one stays, the stronger is one’s claim to remain.  However, as I noted at the outset, it’s at least somewhat unclear how the theory should apply in different contexts.

We should ask, for example, whether the community’s failure to approve one’s initial entry makes a difference to the social membership that one allegedly gains with the passage of time.  It is at least worth noticing that in many ordinary contexts this would seem to matter quite a lot.

Imagine that a student who cannot afford to attend NYU hacks into the university’s computer system and generates a student account.  Over the next couple of years, he is otherwise a model student at the university.  He does well in his coursework and avoids any further violation of university rules.  He also proves to be quite active socially, becoming involved in a number of student clubs and forming a wide range of important relationships with other students and faculty members.  When the university discovers the initial violation, would anybody think that it has lost the rightto expel the student from the university?  Would the university have more of a right to expel the student if he had been less active in developing social connections in the community?

My own view is that the initial violation gives the university the right to expel the student, should it wish to do so.   This, again, at least suggests that social membership may not be sufficient to establish a claim to legal membership.

I emphasize that the issue here is the university’s right to expel the student.  If the student made impressive contributions to the university community during his time there, the university might well decide to allow him to graduate upon paying the tuition owed or even to waive such payments.  Doing so would involve the university electing not to exercise a right that it possesses; this, of course, is importantly different from denying that the university holds such a right.

Similarly, I would personally endorse a policy of regularizing illegal immigrants similar to that advocated by Carens.  In my view, regularizing illegal immigrants who have been in the country for a long period of time without violating important laws would be a humane and decent policy.  It would also reflect the recognition that those of us in receiving countries cannot reasonably claim to deserve the wealth that surrounds us.  This is the kind of policy that I would like for the country claiming to act in my name to endorse.  But, one can disapprove of current policy towards illegal immigrants without denying that states have the right to make it.

Carens needs an argument for the claim that the state lacks this right, but (1) the examples that he calls on to argue for such a position are insufficient because they cannot distinguish between his position and those that would give different types of reasons for resisting the deportation of Grimmond and Sanchez, and (2) more argument is needed to show that the theory of social membership unproblematically travels across cases that are otherwise importantly different (such as when entry is not permitted by the community).  So, however attractive is the policy that Carens recommends, I doubt whether he has given us sufficient reason to think that it uniquely (or best) fits with broader democratic commitments.

IV

Let me briefly discuss two ways in which Carens might respond to this line of argument.

First, he argues that our commitment to statutes of limitations shows that the right to punish fades with time:

It is not right to make people live indefinitely with a threat of serious legal consequences hanging over their heads for some long-past action, except for the most serious sorts of offenses.  Keeping the threat in place for a long period of time does not enhance deterrence and causes great harm to the individual – more than is warranted by the original offense.  (154)

Unfortunately, reference to the statute of limitations is more complicated than this suggests.

For instance, if the violation is a continuing one, the statute of limitations does not typically begin its countdown until the end of the series of violations.  Likewise, on at least some views, the statute of limitations does not begin its countdown until a reasonable person would have discovered the infringement.  So, for example, the fact that Bernie Madoff allegedly began committing fraud in the mid-1980’s did not prevent him from being prosecuted three decades later.

Likewise, the standard view is surely that the presence of the individual is a continuing violation of the political community’s right of self-determination and an illicit claiming of entitlement to the proceeds of a system of social cooperation to which the individual has no rightful claim.  Carens seems to be assuming that the initial entry to the country, as opposed to continuing residence there, is the illegal act that requires forgiveness.  But, if we are working from the assumption that the state has the right to restrict immigration, it is not obvious why we should accept such a position.

Thus, as it stands, it is perfectly reasonable for someone to respond by saying that their endorsement of the statute of limitations commits them to the view that we should not hunt people down after they return to their home country and attempt to punish them for their previous illegal residence.  It need not, as far as I can see, commit them to ignoring ongoing legal violations, even if they happened to begin a long time ago.  In any case, for the argument to be dispositive, we would need a more extended defense of the reasons for accepting a statute of limitations and an exploration of how it applies to the case at hand.

Second, Carens could respond by insisting that the theory of social membership is only applicable in the context of political relationships.  If this were true, it would suggest that my example of an “irregular” NYU student would be beside the point.  Although the distinctive nature of political relationships makes this is a tempting response, I think it is at least somewhat worrisome.  Most importantly, the reason that Carens gives for thinking that length of time matters – namely, that with the passage of time one forms relationships that one has an important interest in maintaining – is not naturally confined to the political context.

In the time that our irregular student spends at NYU, he forms important relationships that he has a strong interest in maintaining and that cannot be adequately pursued in the absence of membership in the university community.  Because the interests involved seem to extend to other kinds of cases, claiming that the theory only applies in the context of the state seems ad hoc and unjustified.  I think that these concerns suggest that there would be something valuable to be gained from a more detailed working out of the justification for the theory of social membership that underpins the book.

However, these (mildly) critical comments should not for a moment distract from the excellence and importance of The Ethics of Immigration.  This is a fantastic book: challenging, provocative, and clearly argued.  It should generate lots of welcome reflection, debate, and discussion about the obligations of democracies in the construction of immigration policy.  Moreover, it should establish the importance of questions of migration to broader debates in political theory about justice, democracy, and citizenship.  For helping to clarify issues of pressing public concern and for providing us with a model of what political theory can and should be, we are all in Carens’s debt.

Ryan Pevnick teaches political theory at New York University and is the author of Immigration and the Constraints of Justice (Cambridge, 2011).