I am pleased to announce Danny Frederick’s and my paper, “The Liberal Defense of Immigration Control,” has been accepted for publication in the peer-reviewed, open access journal, Cosmos + Taxis. I will link to this journal when our paper becomes available. As you may know from prior posts, and as reflected in our title, we argue there that the characteristic duty of a liberal state is to secure “the maximum freedom of each person that is compatible with the equal freedom of all persons,” and that this obligation may in the circumstances we hypothesize require restrictions on immigration.
However, this does not exhaust the set
of arguments for immigration control. Here, I wish to highlight an aspect of
the immigration debate that I believe to be problematic for open borders proponents,
and which has not to my knowledge been previously discussed (including in our
paper). That is, their acknowledgement that states may have more stringent
positive duties to their citizens than they do to would-be migrants. This
recognition is necessarily coupled with the claim that this dichotomy has no
application in the realm of negative duties.
Thus, in the Freiman/Hidalgo paper that is one of those Danny and I critique in ours, they say:
Perhaps states have stronger positive duties to their citizens [that is, to promote their interests] than they owe to foreigners…Yet it is implausible that states owe weightier negative duties [such as respecting the right of free movement] to their own citizens than they owe foreigners” (p.17, their emphasis).
If this differential duty exists, it might be because the bond that a state has with its citizens in some way resembles the relationship we have with relatives and friends, in contrast to what we feel regarding complete strangers.
In any case, the apparent relative strength of the state’s positive duties to citizens prompt Freiman/Hidalgo consider the possibility (which they call the “partiality objection”) that such an obligation might outweigh the putative right of entry: “If immigration imposes large costs on a state’s citizens, then the state’s special obligation to protect the interests of citizens can override its negative duty to abstain from coercing potential immigrants” (p.18). However, they reject this outcome because “negative duties to foreigners normally defeat positive duties to compatriots” (p.19).
They first seek to establish the “normally” in the sentence quoted immediately above with “trolley car” style examples, noting that even foes of open borders think it impermissible to divert a trolley about to kill a citizen so that it will instead kill an innocent foreigner. However, this thought experiment obscures rather than illuminates the problem it is supposed to resolve.
This analogy fails because the situation described is governed by an entirely different and inflexible moral paradigm in place of the one we use for deciding the merits of unregulated immigration. Rather than turning on the competing interests of citizens and potential migrants, the weight of which may be context-dependent, it trades on the well-known distinction moral philosophers make between killing and letting die, with the former held to be more repugnant than the latter. In the trolley case, the about-to-be-crushed person is simply in the proverbial “wrong place at the wrong time.” Following the “killing/letting die” logic, it is always wrong to divert the trolley to save them; their status as citizen or foreigner is completely irrelevant. It’s not that a legitimate interest is overridden by a rival one, it’s that under this paradigm no moral claim for diverting the trolley can ever arise.
Moreover, rather than resorting to dubious and otiose analogies we can simply directly ask the relevant question: “Should a state permit an innocent foreigner to enter the country, thereby saving their life, if this would somehow cause the death of an equally innocent citizen?” I believe most people would respond to this query differently than they would to the trolley scenario.
Freiman/Hidalgo also offer a second analogy, this time involving the special concern parents have for their children’s welfare.[1] They argue that even such a strong and natural commitment clearly cannot warrant the physical restraint of a foreign applicant heading to an employment interview so as to ensure that your daughter gets this coveted job (p.19). Accordingly, a fortiori, our regard for our fellow citizens cannot justify abusing foreigners. But this analogy is no more persuasive than the trolley case.
First, the daughter here is simply not threatened by the sort of serious harm that restrictionists typically cite as reasons for immigration control. Furthermore, preventing the foreigner from getting to the interview not only thwarts their interests but also those of the would-be domestic employer. Recall, the state does, by hypothesis, have positive duties to its citizens that may, again by hypothesis, override the interests of migrants. In light of the distinctions noted, the second analogy gives us no reason to think the judgment we reach in that example would apply generally to all or even most immigration restrictions. It is no more helpful than a counter-example in which your daughter is on her way to participate in a well-publicized “Draw Muhammad” contest, and the foreigner had expressed his intent to kill anyone who dared.
By their own admission, the onus falls on Freiman/Hidalgo
to show that the deference they grant liberal states with respect to positive
duties should not extend to immigration policy. I believe they have failed to
meet this burden.
[1] Freiman/Hidalgo acknowledge (p. 19n) that they have adapted this case from the one offered by Michael Heumer in “Is There a Right to Immigrate,” Social Theory and Practice 36: at 439. If the counterargument presented here is effective against their version, it equally rebuts Heumer’s scenario.
