The Ethics of Immigration symposium: Democratic equality and internal movement

The right to move within states is a basic human right, acknowledged by multiple international human rights documents including the Universal Declaration of Human Rights.  For Joseph Carens, what is puzzling, and ultimately unjustified, is that the right to move internationally is not similarly recognized as a basic human right – in his view, it ought to be recognized as such.  According to Carens, the right to move domestically (or internally – I use these terms interchangeably to mean movement within the borders of a state) and internationally protect the same interest:  “the vital interest that is at stake here is…freedom itself.  You have a vital interest in being free, and being free to move where you want is an important aspect of being free” (p. 249).  Carens defends this view from attack by those who think that there are important distinctions between internal and international freedom of movement.  In this brief comment, I outline the argument as Carens describes it, and then I join the ranks of those who nevertheless want to justify distinguishing between the internal and international rights to movement.  I suggest that Carens gives short shrift to two important ways in which the distinction can and, in my view, should be justified, and then argue that we ought to understand the right to move internally as a membership-specific human right, according to a slightly modified account of what such a right entails.

Fundamentally, the argument for defending the right to move, internally and internationally, is a simple one:  says Carens, the right to move is an “important aspect” of freedom, whether internally within states or internationally (p. 250).  The right to move freely should “be regarded as a basic human right because of its intrinsic importance as a human liberty” (p. 253).  There is no reason to distinguish between the right to move domestically and internationally – whatever reason we have to move domestically is also one that we have internationally, to seek better economic opportunities, to follow our family, to explore new cultural environments and so on.  Since the borders that define states are morally arbitrary, there is no good reason to limit our understanding of movement as a basic human right to the domestic environment.  Since international borders at least as much, if not more than, than domestic borders, impede the ability of individuals to exercise the right to move, borders should be open for the same reason that we protect internal freedom of movement, i.e., that it is an essential component of freedom and therefore a basic human right.

Carens proceeds to reject a range of attempts to defend restricting the basic human right to move to the domestic environment.  I will consider two of these here: one attempt suggests that domestic movement is special because it protects individuals from discrimination and another suggests that domestic movement is (as I too shall suggest) a membership-specific human right.

As Carens reports, some scholars defend the right to domestic movement as a basic human right for its contribution to protecting individuals from discrimination by the state (p. 242). Carens agrees that freedom of movement may have an important protective role to play here: certainly in many cases where states aggressively restrain the right of individuals to move internally, as for example when Jews in Europe, or the Japanese in North America, were restricted to ghettos or internment camps in World War 2, it is clear that discrimination is at work.  Yet, Carens ultimately rejects the anti-discrimination argument as the foundation for protecting the right to move domestically as a human right.  Carens responds to this claim in two ways.  First, he points to the historical record, which suggests that the reasons offered to protect internal movement were not rooted in a concern for discrimination (p. 243).  Second, the right to movement does so much more than protect individuals from discrimination by the state: “it is far too broad a right for that to be its primary purpose” (p. 243).

I think Carens is right to reject the claim that the right to move is to be justified exclusively for the role it plays in protecting individuals from discrimination.  Yet, I think also think that what Carens characterizes as an anti-discrimination argument might be better reformulated as a democratic equality argument, a key component of which is protection from discrimination.  Democratic states are responsible for protecting the equality of all their citizens, and doing so requires that they protect a range of rights for all citizens on an equal basis.  All of these rights together, including the right to move internally, serve to protect equality in a democratic state; to use Michael Blake’s language, the right to move is one of a complex of rights that protects individuals in democratic states. None of these rights is absolute – not even those that are most conventionally thought to be the strongest, such as freedom of speech and freedom of religion.  At the very least, they are all limited by the harm principle; more than that, however, in democratic states, the rights can sometimes be additionally curtailed where there are compelling reasons to do so.  To the extent that any of these rights is restricted for some more than others, in particular without adequate justification, democratic equality is not protected.  On this view, then, the right to move domestically is defended for its essential contribution to democratic equality; where it is unjustifiably restricted, then, we can say that those who have access to unequal movement are treated in a discriminatory way.

Accounting for the right to movement in terms of its connection to protecting democratic equality has at least two attractive features.   First, as the anti-discrimination argument suggests, it allows us to diagnose discrimination via an assessment of access to the freedom of movement domestically.  For example, consider the history of zoning laws in the United States.  Justified in apparently neutral language, municipalities sometimes deploy zoning laws to restrict in-migration in the name of limiting population density.  One obvious effect is the driving up of property prices in the zoned municipality.   Much research, however, indicates that these laws are in fact adopted in environments where the goal is to prevent the in-migration is of disfavoured minorities, who may not have the resources to pay the inflated property prices.  In this case, while the policy does not appear to target the right to move of disfavoured minorities directly, it does have a significant effect on their ability to move in particular, and this suggests that there is an unjust inequality at work.  It is a focus on the equal right to move, not simply the right to move as a component of freedom, which enables to diagnose the discriminatory basis of zoning regulations.

A second attractive feature of focusing on democratic equality as a way to understand the importance of protecting the right to move is that it makes sense of the fact that there are cases where movement restrictions, and indeed movement inequality, can be justified. As Robert Goodin has noted, one special feature about domestic states is that they can treat their citizens worse than they can treat outsiders along many dimensions, including with respect to movement, so long as adequate justification is offered in the appropriate democratic environment.  A commitment to democratic equality highlights the importance of offering adequate reasons for the unequal distribution of movement among citizens.  Citizens are entitled, in other words, to equal access to movement domestically, or they are entitled to a set of reasons for why their movement is restricted.

Of course, citizens do not have the equal ability to access the right to move.  A range of factors impact whether an individual is free, or feels herself to be free, to move.  At the most basic level, moving requires resources, and those without resources will be less able to move freely, whether they desire to visit or reside elsewhere.  Some individuals feel themselves prevented from moving by the need to provide for their families.  Yet, other, “external” factors, many of which are shaped by deliberate government intervention, also affect whether citizens feel free to move, in particular for purposes of taking up residence elsewhere.  Gay Americans may feel restricted in where they can live because their marriages are recognized only in some states.  Many American states have significant restrictions on where sex-offenders may live and reside.  Eminent domain laws in many states can compel citizens to leave their houses, in many reported cases without adequate compensation for what they are losing.  Subsidized child care options can make some locations more desirable locations in which to reside.  Concerted attempts to locate business, or some other specialized industry, in one or two locations can encourage individuals with particular expertise to migrate.  What we learn from these cases is that governments often implement policies that are intended to influence whether and where individuals chose to migrate.  In each of these cases, citizens are owed justifications for political decisions that often intentionally, and sometimes unintentionally, affect their ability to migrate internally.

How do we know if the ways in which democratically made public policy, which affects internal migration, is consistent with a commitment to democratic equality?  In part, the answer lies simply in defining the nature of equality to which democracy is typically committed:  in terms of equal basic liberties or inclusion in political decision-making procedures, for example.  Another part of the answer lies, however, in the more particular way in which a given political community defines equality.   In some cases, then, whether democratic equality is violated is clear: if a state refuses to create procedures by which new internal migrants can promptly vote in elections (whether federal or sub-state), it is unjustly penalizing those who migrate internally near election time.  In other cases, however, whether democratic equality is violated is less clear: if a sub-state unit decides to subsidize one form of medical care but not another, an individual in need of the medical care that is not provided elsewhere may feel dissuaded from migrating.  As an example of the latter, consider that the Canadian province of Quebec currently subsidizes some forms of assisted reproductive technology, while other Canadian provinces do not.  It is not clear that democratic equality is violated if a resident of Quebec, who is in need of these services, decides to remain in Quebec to take advantage of them.  The point is that states have considerable leeway to define what equality in general, and equality of movement, entails.  This observation is drawn from the distinction David Miller offers between social and global justice where, he argues, a community’s own account of what social justice demands will serve to delineate the package of goods (or rights) that are to be distributed equally to all members.

As a consequence, whether citizens believe their right to move is constrained fairly or unjustly will depend in large part on the way in which its community conceptualizes democratic equality, as well as the ways in which reasons for movement inequality are justified.  The first step to understanding whether movement is unjustly constrained is comparative: individuals will at first glance assess their own abilities to migrate internally in relation to others’ abilities to migrate internally.  The second step is understanding whether the reasons given to explain unequal ability to migrate internally are consistent with the community’s own understanding of democratic equality.

The right to move can therefore be thought of as a membership-specific human right, i.e., as one that is “derived…from one’s social location”, and which draws “attention…to the fact that certain human rights depend upon a person’s connection to a particular community” (p. 97).  Where a right is a membership-specific human right, “the state is morally obliged to grant to citizens and perhaps to residents as well, but not to others within its jurisdiction” (p. 242).  Why, then, doesn’t Carens believe that freedom of movement is properly described as a membership-specific human right?   One reason he offers is that the Universal Declaration of Human Rights notes that everyone and not simply citizens have the right to move freely on a given territory –“there is nothing membership-specific about that” (p. 241).  But the more important reason seems to be that, after all, the freedom to move is essential to accessing many opportunities in a state, not all of which are connected to issues of membership: “it contributes to personal, civil, economic and social dimensions of freedom” (p. 242).

Yet, this doesn’t seem to be enough to make the case.  As I noted above, states regularly make decisions, which they must justify to members and perhaps also to residents, about the extent to which policies will intrude on or constrain their internal migration opportunities.  These decisions inevitably effect whether everyone (whether citizen, temporary resident, or tourist) within the boundaries of a state can move in pursuit of a wide range of opportunities, but it seems sufficient to conclude that movement is a membership-specific human right to note that members especially are entitled to justifications for decisions that affect their movement.  A membership-specific human right is not only one that is restricted to members as Carens suggests, in other words, the way in which it is instantiated must be justified especially to members as well.  (There is more to say of course about whether justification is owed to non-citizens – tourists, for example, and temporary labour migrants, whose movements are often restricted internally – and if so about format this justification ought to take.)

The argument I’ve offered in response to Carens’ account of the foundations for the right to move internally and internationally is not knock-down certainly; indeed it doesn’t even deny that the right to move itself might well be justified first and foremost with respect to the importance of movement in securing freedom more generally.  What it does do, I hope, is encourage us to think more seriously about the ways in which domestic states impact, and in particular restrict, movement in significant ways, ways that demand justifications that are consistent with a state’s understanding of how to instantiate democratic equality.  In assuming that movement internally is basically free, and thus that what demands explanation is the presence of movement-restricting borders, Carens pays inadequate attention to the ways in which domestic states restrict and encourage movement and to the justifications that can and cannot be offered for these restrictions and encouragements.  As I have tried to suggest, these restrictions can only be justified by reference to a state’s own understanding of democratic equality, an understanding that demands justifications be offered to members especially.  Internal freedom of movement is therefore best understood as a membership-specific human right.

Patti Tamara Lenard teaches applied ethics at the Graduate School of Public and International Affairs, University of Ottawa, and is the author of Trust, Democracy and Multicultural Challenges (Penn State Press, 2012).