Is blanket denial of the right to migrate based on criminal history unjust?

Post by Vipul Naik (regular blogger and site founder, launched site and started blogging March 2012). See:

John Roccia, a supporter of open borders, wrote a blog post about a month back titled Compassion Within The Lines, where he critiqued self-proclaimed supporters of immigration for their very restrictive conception of what it means to be pro-immigration — supporting immigration only for some classes of people. By and large, I agree with his critique. I’ve been critical of pro-immigration immigrant rights activists and Nathan has pointed out how moderate restrictionists often position themselves as being principled non-extremists by casting open borders as an extreme strawman position. Nathan’s also been critical of the “only high IQ immigrants” position that John Roccia is critical of. Nonetheless, some of John’s critique also extends to open borders advocates on this site, specifically me. In a blog post titled free speech absolutism versus viewpoint-based immigration restrictions, I wrote:

My thumb rule for blanket denials is: anything that constitutes sufficient reason for blanket denial of migration should also constitute sufficient reason for punitive measures under criminal or civil law in the target country of immigration. For instance, murder is sufficient grounds for imprisonment, and hence also, in my book, sufficient grounds for a blanket denial of the right to migrate. In some cases, I think the punitive measure under domestic criminal law really is morally unjustified, and hence restricting immigration on that basis is also unjustified. An example is laws against drug use in many countries — I don’t think drug use is sufficient grounds for imprisonment, and hence also not sufficient grounds for denying immigrants entry. But others, who hold different views on drug use, may come to the opposite conclusion.

So far, so good. It is when we move from criminal law to civil law that things get more interesting. Certain activities, such as libel, contract fraud, and copyright infringement, are punishable under civil, but not criminal, law in most jurisdiction — they are litigated by persons, not prosecuted by the state. Libertarians (and others) are probably unanimous about the evil of contract fraud, and may have the view that, at least in some extreme cases, this may be sufficient grounds for denying the right to migrate. Libel and copyright infringement are trickier, since many libertarians (and others) feel that copyright infringement is not immoral at all, and some hold a similar view about libel. Even for those who are opposed to libel and copyright infringement, deporting people, or denying entry, for these “crimes” may seem like overkill. Other minor “crimes” like traffic infractions may also seem like insufficient grounds for denying the right to migrate.

In other words, for most migrants, any negative externalities caused by the migrant should be dealt with through pecuniary transfers such as tariffs or taxes, or by imposing linguistic and cultural fluency requirements, but for crimes that merit imprisonment, blanket denial of the right to migrate may be the right thing.

Prior to the debate with John Roccia, I hadn’t given a lot of thought to this matter, mostly because most of the people I debate on open borders tend to be far more restrictionist than I am, so I’m not usually in a position of needing to defend specific restrictions. In fact, most people featured in the pro-open borders people list on this website have tacitly conceded the legitimacy of keeping criminals out. For instance, David Henderson describes his version of open borders as follows [emphasis mine, not in original]:

Assume that the U.S. government decided to let anyone in who wanted to come, unless the person had a criminal record or carried a dangerous communicable disease. [...] Now, under my scheme, the U.S. government would couple open borders with a 20-year residency requirement for U.S. citizenship and a requirement that one be a citizen in order to get any kind of welfare, including government schooling. That way, people wouldn’t come here for welfare (I think most of them don’t anyway) and we wouldn’t worry about their voting away the very economic system that made this country attractive to them.

Alex Nowrasteh has also, repeatedly in his writings, acknowledged that restricting the immigration of violent and property criminals, and perhaps even deporting them, is morally legitimate. For instance, while praising California’s TRUST Act, Alex writes [emphasis mine, not in original]:

First, it [the TRUST Act] would limit immigration detainers to unauthorized immigrants convicted or currently charged with a serious or violent felony. If SCOMM must exist, it should exist for violent or property offenders and not otherwise peaceful unauthorized immigrants.

Similarly, he praises some aspects of US immigration policy towards Cuba with the following language [emphasis mine, not in original]:

First, the United States has a unique immigration policy for Cubans. Known as the “wet foot/dry foot policy,” if a Cuban reaches American soil he or she is allowed to gain permanent residency within a year. If a Cuban is captured at sea, he or she is returned to Cuba unless they cite fears of persecution. This means that most Cubans who want to leave, with the exception of violent or other criminal offenders, will be able to stay in the United States if they are able to make it to American soil. No other nationality in nearly a century, except the Hungarians in the 1950s, has been subject to such a generous policy.

John Lee, my co-blogger at Open Borders, has also been similarly accommodating of blanket restrictions and deportations of violent criminals, as witnessed in this blog post [emphasis mine, not in original]:

If, as Obama claims, the US kicked out 1.5 million criminals — ~0.5% of the 300 million-strong US population — why didn’t the crime rate fall precipitously? Oh, that’s right — because, unlike what some selective reports would have you believe, crime rates among immigrants are actually lower than among native-born Americans. Who is Obama kidding? I am sure he deported plenty of vile criminals who don’t deserve the opportunity to live and work in a developed economy, but there is no way he rounded up 1.5 million such criminals without deporting hundreds of thousands of US citizens.

Bryan Caplan, in his Haiti ICE hypothetical, also make an allowance for the legitimacy of immigration restrictions based on the prospective immigrant’s criminal history [emphasis mine, not in original]:

You: Why are you denying me permission to travel to the U.S.?

U.S. Immigration and Customs Enforcement [ICE] Agent: You just can’t go. End of story.

You: Why not? There’s got to be a reason.

ICE Agent: Sir, I don’t have to give you a reason.

You: This is going to ruin my life! Have you looked outside the embassy window? People here are literally eating dirt.

ICE Agent: It doesn’t matter. You can’t come, and I refuse to tell you why.

You: Well, it would have to be a pretty good reason to do something so awful to me…

ICE Agent: No comment.

You: Look, I’m not a criminal. I’m not a parasite. I’m not asking for charity. I’ve got a job and an apartment.

ICE Agent: Unfortunately, you don’t have legal permission to work at that job or live in that apartment.

So in some ways I’ve grown complacent about the idea of blanket immigration restrictions for people with criminal backgrounds, rather than trying to devote my energies to coming up with more humane keyhole solutions. Rightly, John Roccia challenged my argument for a blanket denial to criminals in a comment on his own post. I quote the relevant excerpt:

Second, I don’t morally agree with all the keyhole solutions. In particular, I’m not a fan of restricting immigration based on what would be criminally prosecutable here, for a number of reasons. There are simply too many factors of culture to consider. For instance, what is a “criminal?” Is it someone that has committed a crime? That seems unduly harsh, then – lots of people commit crimes, are rehabilitated, and then live productive lives. A career criminal? What defines that? How many crimes, how often, of what severity, and over how long a time? Any limit here would seem arbitrary. Also, are we basing the “criminal identity” on what their home country says, or what they would have been arrested for here? Seems like you’d have to do the latter, or you’d potentially have two different people with an identical history of actions, one who’d be allowed to immigrate and one not simply because of country of origin. But even if it’s based on what they’d be arrested for here, that leads to its own problems. We’re all aware that a huge amount of crime is created by economic conditions. Who knows if the “criminal” would have committed those crimes if he or she had the life they might have had in America? And why should we believe that someone who stole to survive in Venezuela would still steal here? Pure “criminality” isn’t something easily measured. There are too many external reasons why a crime gets committed, reasons that change if you radically change your environment.

I think that John makes some very good points. In fact, I can think of a lot of people — born and brought up in developed countries — who committed theft and other crimes as youngsters, and are now successful as adults. Actor-cum-tech-investor Ashton Kutcher broke into his high school at midnight to steal money, and was convicted of third-degree burglary. Personal development guru Steve Pavlina was arrested for grand theft in Sacramento, California in his late teens. Vivek Kundra, who served as the first Chief Information Officer of the United States, shoplifted four shirts from JC Penney in his youth.

At the same time, as John concedes, there are some people who are “career criminals” — and they differ from people who committed youthful indiscretions and have successfully rehabilitated themselves. I would argue that it is morally legitimate and socially prudent to deny them entry for the welfare of natives and others residing within the territory. Of course, many “career criminals” are already behind bars within the country they are currently residing in as well, and/or have their emigration rights restricted by their own country, so additional immigration restrictions may not be necessary. But there are probably edge cases. What about a person who committed murders, but had his sentence commuted or drastically reduced due to good behavior in prison or proof of temporary insanity or a sympathetic judge? Does the person still have the right to migrate, or is it morally permissible to restrict that right citing a risk, albeit not a certainty, that this person could commit more crimes?

These are difficult questions. Further, somebody who has committed a relatively minor crime is still more likely than a person without a criminal background to proceed to more major crimes. Are there any keyhole solutions? I’ve been thinking about this, and here are some possibilities.

Restricting immigration for people who have committed crimes recently

One idea is to restrict the immigration of people who have been convicted of committing crimes in the recent past, where the definition of “recent” would vary based on the nature of the crime. For instance, a person arrested for shoplifting in the UK may have his/her right to immigrate to the US restricted for one year following the shoplifting charge. For a more serious charge, the right to immigrate may be restricted longer. The time-limited restrictions would also apply to people who are accused of crimes but have not yet been convicted, until such time as they receive an exoneration.

In crimes that are punished with incarceration, it may be relevant to impose the time limit from the time of release from prison. This makes more sense, because what’s relevant for the purpose of the immigrant-receiving country is whether the person can refrain from crime while free. Thus, a person accused of battery or assault may spend a number of years in prison without further accusations of battery or assault, but this time spent in prison does not prove that the person would refrain from these activities once free. So, the restriction may be “three years not in prison without any charges of battery or assault” in order for the person to be eligible to immigrate.

What this does is to give people with criminal history the hope of rehabilitation. At the same time, it does serve as an additional incentive to deter people in poor countries (who hope to migrate to lands of more opportunity) from engaging in petty criminal activity that may significantly delay the day they can leave.

Additional security deposits

Another possibility, which applies particularly to people with histories of non-violent theft (such as “cold” burglaries, where they do not confront or use violence against the victim of the theft) is to require high security deposits to insure against the possibility of the person committing theft. The security deposits could be designed to be refundable (i.e., returned when they leave the country, or deductible against taxes if they stay) or non-refundable, or perhaps partly refundable. If we’re following Nathan Smith’s DRITI keyhole solution, then the security deposit could be added (for people with criminal histories) to the refundable return deposit as an initial payment that the migrant needs to make, and then transferred to the person’s mandatory savings account if the person stays for a long period of time without any criminal activity.

Presumption of denial

My general understanding of open borders is that the presumption would shift towards allowing people to migrate, and that any visa denial would need to be explicitly justified and would need to stand up to scrutiny and challenge. Under the de jure status quo, consular officers can deny visa applications at will, and in so far as they provide reasons for rejecting a visa, this is out of the goodness of their hearts, and is not obligatory for them. The burden of proof is on the visa applicant to demonstrate that he/she is worthy of getting a visa. With open borders, the burden of proof would shift onto the consular officer if he/she wanted to deny a visa application. My co-blogger John Lee has written about this in the past (see also his blog posts tagged “arbitrariness”) so I won’t stress this point too much here.

In the case of people with criminal histories, however, I think it is reasonable for the presumption to be against migration and for the applicant to need to affirmatively overcome the presumption. In other words, I’m saying that the way the status quo is currently (at least de jure) stacked against all potential immigrants is applicable only to immigrants with criminal histories. If they are able to make a strong case for themselves to overcome the presumption, as I’m sure people like Ashton Kutcher can, then they get to migrate. However, the consular officer can reject their application based on the criminal history alone and does not need to offer further justification.

Combining these keyhole solutions

The three ideas I have outlined above can be combined in different ways. One can imagine a “hard” limit of a certain number of crime-free years before a person gets the opportunity to immigrate. Beyond that, one can imagine a security deposit whose amount reduces gradually with time. Thus, perhaps a person arrested for burglary cannot immigrate for at least five years after the burglary charge, with at least two years out of prison. If the person wants to immigrate immediately afterward, he/she needs to pay a security deposit of (say) $3000. However, the security deposit amount goes down by $500 every year, so that six years after the original restriction expired, the person’s security deposit requirement vanishes. One can also imagine that within that window period of six years between the end of the hard restriction and the vanishing of the security deposit, the consular officer has discretionary authority to deny entry without needing to specify additional reasons. Various other combinations of these keyhole solutions are also possible.

20 thoughts on “Is blanket denial of the right to migrate based on criminal history unjust?”

  1. I’m glad you wrote this – especially since I didn’t seem to have time to do it proper justice. As seems to be the case with me, I’m better at replying than initially writing – so let me do so here!

    I have some issues with your solutions, but I agree with some of what you said. There ARE “career criminals” out there – but again, how many? And in what circumstance? While there are serial arsonists and serial killers out there, they’re a VAST minority. Most career criminals are of the “theft/illegal trafficking of goods/fraud” sort. A huge number of these criminals in our own country are created via restrictive drug laws, and many more are created by a “justice” system that ruins lives for single offences. An inner-city young black male, for example, has a hard enough time without a rap sheet – and once he gets one (for something as minor as marijuana possession, perhaps), his options often boil down to petty crime or minimum wage. It’s no shock that someone can become a career criminal in that case – and in countries with significantly worse economic outlook than ours, those symptoms can only be worse. So again, what metric of “career criminal” is truly just, when you consider that the punishment for such a title is being denied the right to come to America?

    Furthermore, let’s do a little risk-analysis. How many career criminals are there, really? Out of all the people that want to immigrate, what percentage would realistically become career criminals here? Is that percentage large enough to even warrant the resources that would need to be spent determining “career criminal” status for every potential immigrant?

    I like even less the “security deposit” idea, for the simple reason that any meaningful deposit amount is probably vastly outside the average third-world immigrant’s ability to raise. And how are they likely to raise it if they do? We might be encouraging them to steal MORE just to raise their “come to America” money!

    My own keyhole solution is a simple one. If you are an immigrant, and you commit a crime in America that would get you any jail time here, you are instead deported back to country of origin. Given the crime rates among immigrants, it seems like this should be more than sufficient. It solves a number of problems – first, if heavily advertised, it’s a HUGE disincentive to commit crimes! After all, most American prisons are still preferable to the life some immigrants had prior to immigration. It also removes the concern of immigrant criminals becoming a burden on our prison system. Lastly, it’s tough to be a career criminal if your first crime gets you deported!

    To avoid unjust cruelty, the deportation wouldn’t even have to be permanent. It could simply be a ban lasting as long as your jail sentence would have lasted had you stayed.

    Which brings me to a point I agree with you on – an immigration ban for those that have committed crimes recently seems just enough. My only concern there is logistics – are we in good enough communication with the justice systems of the countries of origin to determine this accurately? And do we trust the fairness of those justice systems? Many people flee their home countries not only for economic reasons, but political. The members of the band Pussy Riot are in a Russian prison right now – but I certainly wouldn’t ban them from immigrating to America on the basis of their “crimes.”

    All in all, I feel we should take the fact that immigrants, as a group, are significantly less likely to be criminals than native-born citizens to be a sign that there should be a strong presumption in favor of allowing immigration for everyone, even if they DO have a “rap sheet.” After all, if even low-IQ, low-skill immigrants are a net boon, then why should we assume criminals have nothing to offer?

    I’ll close with an anecdote. I was a hiring manager for several years for a staffing agency. One day my last interview of the day walked in and introduced himself – his name was Eddie. Directly after shaking my hand, he said “Sir, I don’t want to waste your time, so I’d like to put this out there right away,” and showed me his ankle monitor. Since he was my last interview, and his demeanor had intrigued me, I asked him to tell me his story. He was 30 years old, and had just gotten out of prison, for 12 years, for murder. He was Puerto Rican, and had shot and killed a rival gang member when he was 18. I asked him why he was in a gang – “I was 18 in Puerto Rico. You had to be.” I asked him why he killed the other man – “He was trying to kill me.” While in prison, he’d finished both high school and college, and was a model prisoner. Now a free man, he had no career history and desperately few prospects. He made a fantastic impression, and after the regular interview I told him I’d see what I could find for him. I found a company our agency worked with that didn’t have a provision against hiring felons, called them up and explained Eddie’s situation. I also highly recommended him based on our interview. He got the job, and I kept in touch with him.

    Within six months he was promoted to manager. He works there still.

    1. I think you bring up a good point, which is do we trust the immigration authorities of the world to fairly evaluate claims of refugee status (such as the Pussy Riot case, if the members of Pussy Riot were to seek asylum outside Russia)? Something I’ve been meaning to blog about but haven’t had the time to is the concerning case of refugees, who under international law are about the only people with a clear right to immigrate to another country, and yet who are so routinely turned away or deported, often under legal technicalities, because governments just don’t want to deal with them.

      I agree with you and Vipul that banning recent criminals and deporting actual criminals are good ideas, at least in theory. But I share your concern that the justice systems of the world aren’t actually just enough to avoid abusing these principles for the sake of turning away valid refugees or otherwise well-intentioned immigrants acting in good faith. The sole consolation is that it would still be a huge advance for open borders and human rights if governments were to say “We can’t turn away or deport anyone who isn’t a criminal, but have carte blanche for anyone with an actual criminal record”.

      (For what it’s worth, anecdotally the US seems to have the strictest immigration laws when it comes to criminal records. My family’s migrated to various countries and the US had by far the most burdensome process for verifying criminal backgrounds — my parents needed to write to the police authorities in every jurisdiction they’ve lived in for the last 15 or 20 odd years to obtain letters verifying their lack of criminal histories, and this is apparently standard procedure for getting a green card. There was notably less red tape getting visas for Singapore, Australia, or New Zealand.)

    2. Thanks for the reply, John (Roccia). Here are some responses to your concerns.

      I think that the idea of an additional security deposit is not as bad as you do. To me, it’s like an insurer requiring a higher premium for a pre-existing medical condition or for people who smoke. We understand that many pre-existing medical conditions are not the “fault” of the person, and while a decision to smoke is definitely one for which people can be held morally responsible, there are probably many people who have circumstances that explain their decision (just as with some crimes). Nonetheless, we understand that an insurance company needs to charge a rate that reflects its risk. I think that additional security deposits could serve the same function.

      The chief criticism of this argument is that in a non-competitive landscape, the additional security deposit, rather than being an accurate premium for risk, might just turn into another cash cow. Making the deposit refundable could be part of the solution (this would probably raise the deposit value prima facie, but at the same time, would reduce incentives to turn it into a revenue source).

      Now, regarding the implementation, I think the security deposit idea can be combined in various ways with the time limited restriction ideas, as I hinted above. For instance, we may agree that, as a general rule, a person needs to have X years of a crime-free record before being allowed to immigrate. But there may be some special exceptional cases of people who have a very high need to immigrate and generate huge social benefits by immigrating, but have not completed the X years. A deposit for such people could therefore be an improvement over the hard-and-fast rule. Since these are likely to be people who have a huge wealth-generating opportunity, they would also be likely to be able to pay the deposit.

      While I have nothing in principle against your idea of deporting immigrants if they commit crimes (in lieu of imprisonment) I think that this approach has its own problems. First, if somebody has committed a heinous crime like murder, then dumping that person back to the country that person came from either means he/she will be loose on the streets in that country, or that that other country will need to pay the costs of incarceration for that person. This could create tensions between countries. Also, if the source country of the immigrant does not successfully imprison or track the immigrant, that immigrant might sneak back in illegally into other countries and create crime problems there. However, it may be that these problems are less severe than the problems with the keyhole solution I proposed.

      Regarding your note on career criminals, there are several categories of people (both independently acting psychopaths and members of large-scale organized crime rings) whose hopes for rehabilitation are slim, and for whom deterrence and avoidance is indeed the best path. At the same time, there are loads of other people whose criminality was probably situational and who have successfully rehabilitated. It is obviously difficult for consular officers to make out the difference, since they are not experts in this matter (though, if we had near-open borders for non-criminals, there would be more room to hire consular officers and investigators who are better equipped at making these judgments, but it would still be a lot of guesswork). That is why I suggest the “no recent crime” standard, which would de facto weed out (hopefully!) most career criminals, considering that being a “career criminal” probably means you can’t go for a long time without committing some crime.

      You also say that the current patterns of immigration and crime in the United States suggest that immigrant criminality is not something to be much worried about. I think the story is more complicated than that, because the current patterns of immigration may not be reflective of what would happen under open borders. I did try to do a speculative analysis of the matter, and concluded (tentatively) that crime would not be a big problem under open borders. But there were some interesting counterpoints in the comments that I hope to address in a subsequent post. Unfortunately, there hasn’t been a lot of study of what crime might look like under open borders, apart from my blog post, and extrapolating from current trends might paint a misleading picture. Moreover, the main reason why immigration would not be a big issue crime-wise for the US is that the US already has a relatively high crime rate. If we were talking about immigration policy for the UK, China, or Japan (Japan has 1/10 the intentional homicide rate of the US) the same analysis would indicate that open borders could spell disaster for Japan. Since my goal here is to provide a general framework of possibilities that different countries could adopt in their own steps towards open borders, I’ve been trying to put forward a number of solutions that have value even if a cost-benefit analysis reveals them to be unnecessary for the US.

      1. You make an excellent point about the prevailing crime rates in other countries more likely to accept immigrants than send them, such as Japan. I hadn’t considered that the fact that immigrants are so low-crime might not be because the immigrants are particularly well-behaved, but because the natives aren’t!

        I’ll admit I’m a bit out of my depth there – I don’t know anywhere near enough about the policies in Japan, etc. to make informed comments, so I’ll have to yield that point to you.

        In regards to the security deposit point, however: I don’t think the comparison to higher-risk insurance customers is just, because that indicates that a.) America is providing some sort of service to immigrants by letting them come, and b.) America has any right to charge people to enter. We don’t charge native-born citizens to have children, do we?

        Consider the following. By default, the vast majority of movement you could do on the globe is unrestricted. If I go from here to Wisconsin, I don’t have to justify it to anyone. Same for most travel. That’s the natural state of things – only government policies make it otherwise at very specific geographical points – national boundaries. Since I believe very strongly in the Presumption of Liberty, in my mind you don’t have to justify immigration – you have to justify restricting it. From a moral standpoint, I can’t justify taking money from someone in order to “allow” them what they would be naturally able to do if I didn’t interfere in the first place.

        Plus, I still think you’d have a HECK of a time figuring out the actual amount to charge. Consider the economies of different countries, the exchange rates, etc.! Do we charge the same for an immigrant from Germany as from Ethiopia? That hardly seems fair, but trying to tie it to some other measure unique to each country (per capita GDP? Median wage? What?) would be a logistically nightmare, and still probably grossly unfair. And I just can’t bring myself to believe that it wouldn’t somehow be used as another governmental revenue source. “Sure, we’ll hold onto this money for you, in trust. The same way we did with Social Security.”

        Lastly, I think that there’s a very strong case for immigration as an ANSWER to crime. Consider the following hypothetical – by dint of worldwide governmental fiat (UN action, maybe?), all geographical relocation becomes completely forbidden, even within countries. You can’t move more than a mile from where you are when the action passes. If you live in Milwaukee or Baghdad, that’s where you’ll live forever. Wouldn’t we expect crime to increase in the very worst areas? We’d certainly expect economic performance across the world to decrease as productive workers could no longer move around, and with worse economic climate comes increased crime. So if the complete lack of immigration would equal more crime, couldn’t the case be made that increased immigration might lessen worldwide crime? In other words, I don’t think crime (and criminals) is zero-sum – just because Cuba loses a criminal doesn’t have to mean we gain one.

  2. I would say that (a) yes, a blanket denial of the opportunity to immigrate to criminals is almost certainly going to create a lot of injustice, but (b) I’m willing to tolerate this as part of a compromise if that could lead to open borders for the law-abiding majority.

    I don’t think I would support John Roccia’s suggestion of deporting immigrants for jailable offenses, because that’s too light. As Dostoyevsky wrote somewhere, it’s like punishing a fish by tossing them in the water. If a person ought to be in jail for a crime, they shouldn’t be at large in a foreign country. In some cases, it might be good to make agreements with particular foreign countries to deport their nationals who commit crimes, if we can be confident that they’ll get justice in their home country. In general, though, I have yet to find a situation where I think deportation would be appropriate.

    If criminals were barred from immigrating, under, say the DRITI scheme, many of them might find it advantageous to come illegally. What do you do then? Do you punish employers for hiring a good employee supporting a family who picked a pocket thirty years ago? Do you deport an ex-litterbug who now has five US-born citizen children? My ideal system might constrain criminals’ freedom of migration somewhat– it could be a potent yet not inhumane form of punishment if applied wisely and moderately– but it would have to be quite circumspect to avoid injustice.

    1. That’s definitely a solid point about deportation. I think ultimately the solution is just accepting that immigration is a net boon even if we DON’T exclude those with a criminal past. By doing so, I think we not only avoid more injustice than we’d allow (is keeping out one million “potential criminals” justifiable when allowing them might only result in 500 crimes?), but we’d also err on the side of presuming liberty, something I’m always in favor of.

  3. Apologies for being repetitive, but:

    There are multiple countries on this planet with top-flight living standards and institutions. Given the level of disagreement on this subject, I see very good reasons for having discussions like this to clarify your own thinking, but I have zero respect for the continued insistence that *every* country is *morally obligated* to change their policies in the way you want.

    There is no obligation. Your intuition that existing good institutions have enough reserve “surface tension” that loading them with more people of *any* background will consistently improve human welfare, instead of redistributing it and weakening the institutions if too many of the wrong people are admitted, is nowhere close to being universally accepted, and this is not always due to ignorance. There are enough complex and nonlinear interactions in modern human society that jumping from some econometric numbers to demanding that a highly unpopular policy change be universally applied is, at best, criminally negligent.

    Work to secure a platform for testing your theories that is smaller and less important to global prosperity than the US. (http://www.seasteading.org/ is where my charity dollars have been going, but I think you have better options such as working with a less prosperous but safe country with minimal public opposition to heavy immigration.) Identify practical limits to your current schemes, address them, iterate. Build something which majorities in developed economies want to copy because they can observe it to be a win-win under their own values, rather than just under your values and some models that inadequately reflect rational human preferences.

    No, this is not easy. But I’d argue that this is a more moral approach to human advancement than the aggressive stances some of you have taken, and one that is more likely to succeed.

    1. Oops, I forgot to comment on justice.

      A theory of justice that predictably causes the societies which apply it to degrade is not very useful, regardless of its theoretical appeal. The future belongs to those who are approximately right according to reality and their own values, not those who are perfectly right according to their own values and suicidal according to reality.

    2. Without wanting to appear glib, this seems to me to be an extreme instance of status quo-ism. Virtually identical arguments could have and probably have been made with respect to seemingly insane ideas such as the abolition of slavery (why on earth did abolitionists start with the British Empire instead of somewhere smaller and less influential?), free trade, the abolition of conscription in most Western democracies, or even the repeal of prohibition of certain drugs like marijuana.

      If one takes the economic estimates of immigration’s benefits to be even half-true (and note that Clemens, Pritchett, et al. have summaries of the theoretical benefits, but that governments across the world have in fact produced empirical economic estimates of immigration’s benefit to their economies), closing of the borders is about as harmful to human welfare if not even more so than at least one if not more of the above listed “crazy” ideas.

      Everyone respects that individual countries have their own right to their own labour policies, trade policies, conscription policies, and drug policies. All advocates ask is that immoral and arbitrary policies be regarded as morally beyond the pall for any civilised state. Most realistic free trade advocates don’t expect every state to abolish all tariffs and duties (even Milton Friedman said states had the right to inspect exports/imports for prohibited or regulated goods and could assess a tariff to cover inspection costs). Most realistic anti-conscription advocates can see instances such as Israel, South Korea, or more disputably Singapore, where the draft might be necessary. Even anti-slavery advocates typically reserve exceptions for where labour is coerced by reason of penal servitude.

      Likewise, open borders advocates are open to cases or areas where strict border controls might be necessary or justified. All we ask is that the modern state revisit its fundamental presumption that immigrants have no rights and that the state has virtual carte blanche in dealing with them. Each country can pursue its own immigration policy, because there are many different ways to open the borders.

      Even if you refuse to go all that far, consider that Australia has nearly double the proportion of immigrants that the US has (some 22 odd per cent by some reckonings, versus 12 to 13% in the US). Consider that Canada, Sweden, and Germany all have more foreign-born residents as a proportion of their population than the US. If high levels of immigration truly wreck institutions, surely that should be evident from these cases by now. My view is that many, perhaps most, countries should be able to handle at least Australian levels of immigration, if not more, and that the obligation is on the country to prove otherwise if it wants to arbitrarily cap immigration (Japan is probably a country with a strong case for an exception I think, though even that is open to question).

      You are quite right to question the US-centrism that sometimes manifests on this site (though at the same time you are also quite right to observe that we push for as many countries as possible to observe the fundamental human right to migrate). But that I think is a function of the fact that the US has a robust debate already on immigration for us to plug in to, and also because it has a lot of potential to absorb more immigrants. If the US is uniquely fragile when it comes to immigration, the onus is on the one arguing this to support it with evidence.

      Having said that, I agree other countries could use some focus. Developing countries likely benefit from open borders too (in both directions, sending and receiving). And the UK’s recent tightening of immigration law deserves more scrutiny than we’ve given it. There are also issues in the EU worth discussing. The problem here is that none of us on the blog are terribly personally familiar with most of these cases, although we’ve (or at least I have) read about our fair share of studies on immigration’s impact in these countries.

      1. Australia and Canada have much stronger immigration quality control than the US. I’d have no problem with the US becoming more like them… and a key step toward that is enforcement of the law against illegal immigrants so resources can be freed up to absorb the highest quality legal immigrants the US can get.

        As I’ve mentioned before, the collapse of Californian student performance is all the evidence needed to justify stronger US immigration controls. There is nothing unreasonable about my request that someone who attributes the collapse entirely to e.g. Proposition 13 should provide a working demonstration of how to effectively absorb a low-skill immigrant flood.

  4. Also:

    – After the US broke free, there was no slavery in England, and the rest of the British Empire wasn’t very dependent on slavery either. It was an obvious starting point for an abolitionist movement with broad public support.

    To the extent that the US is currently fertile ground for broadly supported immigration reform, it is in the citizenist rather than open borders direction. Your analogy does not imply what you think it does.

    – If the benefits of open borders are anywhere near as large as you claim, it should not be too difficult to produce a working demonstration that convincingly disproves most restrictionist claims; you could screw many things up and still come out obviously ahead. So I’m not imposing an unreasonable standard of proof that amounts to an “extreme instance of status quo-ism”; there are a LOT of countries out there, you’ve already identified some with populations that are open to heavy immigration, and you only need a very small number to work with. And Singapore government bureaucrats have listened to Bryan Caplan before.

    – After you’ve worked out all the bugs and made a convincing practical case for open borders, universal adoption may happen. In that event, you and your memetic descendants will have successfully CREATED a human right of free migration, which will hopefully stick around. This is how the real world works, as opposed to the idealized one imagined by some mostly well-meaning but misguided philosophers.

    1. To your second point, there have been numerous historical and if one really thinks about it even current demonstrations of the benefits of open borders. Ignoring the open borders of 19th century America or the open borders decades prior to WW1 which lead to great gains, today there is the EU. There is major differences in productivity, culture, and political beliefs within the EU, and yet there hasn’t been a dramatic decline in European institutions caused by immigration (the problems the EU currently faces typically have more to do with native benefits). Every country with no restrictions on travel or residency within it’s borders is also an example. Many of these countries are ethnically, linguistically, and economically highly diverse and yet I’m hard pressed to think of a country which has collapsed because they didn’t try to regulate internal migrations.

      The ultimate problem for restrictionists is that the borders which currently exist in the world are not based on attempts to maximize any kind of homogeneity or to produce groups which might be considered ideal from a restrictionist perspective. If the concerns of restrictionists were at all likely to occur then diverse countries like The United States, Switzerland, New Zealand, Brazil and Malaysia should be in terrible shape rather than either well developed or developing strongly. We’ve frankly had small and large scale tests of the success of open borders for centuries. Another small scale test will do nothing to change attitudes. If centuries of tests within and between countries is not enough I’m not sure there is “enough” testing beyond just going ahead with as many countries and as large of countries as possible and opening the borders.

      Also to the point on how rights are “created” in the real world, this may sound like a quibble but this is just the natural rights supporter in me coming out. As a practical matter yes it takes time and sometimes tests to prove to people that something should be treated as a right. That doesn’t mean the right was created. When Liebniz and Newton developed calculus they had to present proofs to show it was correct, that doesn’t mean they created calculus. They discovered a way in which the world operates. For a natural rights believer there’s nothing contradictory in saying that there must be evidence for a right and saying a right is not created. Calculus was always correct even before humans realized it. Slavery was always a violation of human rights even before humans realized it. Slavery always contradicted basic moral precepts like “harming innocent people is wrong.” That people failed to consistently apply basic concepts in which they believed is not particularly surprising anymore than the failure of people to consistently follow the rules of mathematics to calculus. Both were true and both went (mostly) unrealized for centuries. However, I admit this is a more esoteric tangent.

      1. The strongest anti-immigration sentiments in the EU are directed at Muslims and Gypsies. Though opposition exists to other types of immigration (e.g. some anti-Eastern European sentiment within Britain), it’s much weaker since it’s generally accepted that they don’t present the same level of threat to cultural/institutional capital. There is nothing unreasonable about opening borders within a moderately homogeneous region, while encouraging all countries in that region to restrict immigration of outsiders to a manageable level. The “manageable level” can increase over time, and there’s some incentive for countries to make that happen (otherwise they leave able and willing human capital on the table).

        Your claim that the tests of the past resolve everything, and “Another small scale test will do nothing to change attitudes”, is rather pathetic in light of the documented inaccuracy of predictions made by 1965 Immigration Act supporters. As long as you can’t acknowledge that your current universalist theories have already been proven wrong and there’s some debugging you need to do, you don’t deserve to be taken seriously.

        Re: natural rights, your analogy to calculus unambiguously fails. Calculus is a purely abstract system; while details like notation are contingent on historical happenstance, the basic math can only come out one way once you agree on starting axioms, and the starting axioms have very low Kolmogorov complexity. In contrast, anything nontrivial involving actual humans has true Kolmogorov complexity proportional to that of humans themselves; even the most “obvious” rules (e.g. prohibition of murder) are riddled with corner cases that can reasonably be resolved in multiple ways (e.g. what constitutes self-defense? and see John Lee’s remark about a possible slavery corner case). What is “obvious” to you can be “obviously wrong” to someone else, without either person being unreasonable; this happens all the time in politics (in fact, predilections toward different perspectives seems to be partially heritable). Homo economicus is a useful abstraction, but there’s a lot that it misses.

        1. A few other things (yeah, I usually like to be able to edit my comments):

          The Ottoman Empire is an example of a highly diverse polity that slowly degraded.

          Brazil is doing reasonably well, but it has no real hope of being in the same league of e.g. China when it comes to power projection, let alone today’s US. Do you think a China-dominated world would not be meaningfully different from today’s US-dominated world? If yes, okay, your beliefs are internally consistent. If not, and you think the change is more likely to be negative than positive, you may want to oppose policies that predictably lower US relative technical prowess to something closer to Brazil’s level.

          1. Sorry for the delay in response, but I think you’re overestimating the homogeneity of Eastern Europeans vis-a-vis Western Europeans. The basic problem I see is that we haven’t defined clear standards for calling groups “hetero-” or “homogeneous.” Language, work ethics, political views, and religion are all clearly insufficient if Eastern or Southern Europeans are to be considered “relatively homogeneous” with Western Europeans. If we are to use popular reactions as our guide we can see from history that those views seem variable for reasons divorced from economics or political externalities. Given their rankings on economic freedom, Frenchmen concerned about immigrants holding different beliefs on economic freedom should be more concerned about Italians than Turks. Even in terms of religiosity, Poland has a smaller proportion of the populace that never attends religious services than Turkey. Furthermore, we might say that Islam is very distinct from Christianity, but on a fundamental level isn’t atheism an even more distinct set of beliefs and yet there is little complaint there. Really many of these distinctions on hetero or homogeneity seem rather arbitrary. Indeed, one should expect that the people of European are likely to have arbitrary or irrationality political views about immigrants given the low cost of irrationality in politics. Without a firm definition of “heterogeneous” or “homogeneous” polities we both run the intellectual risk of simply defining those terms to match pre-existing beliefs.

            If the predictions of the supporters of the 1965 Immigration Act were wrong about the places of origin and the amount of immigrants who came in this doesn’t mean that they were wrong on what truly matters, whether or not increased immigration has produced net harm on the native people of the United States. It’s worth remembering that not all predictions are equally important in promoting a world view. For instance, say protectionists made the prediction that if all illegal immigration from Mexico was stopped tomorrow 90% of the Mexican restaurants in my hometown would stay open. Then when all that illegal immigration is halted, 60% of the Mexican restaurants shut down in response would that fatally undermine the restrictionist position? Of course not unless the single most important issue to someone was the number of Mexican restaurants available to him. On the other hand if political outcomes improved, the economy became stronger, and people were generally happier with life, even with that wrong position on the number of Mexican restaurants the protectionist position would be greatly strengthened. Similarly, if advocates of increased immigration were wrong on the number or origin of the immigrants but right about the positive economic impacts, that latter consideration is significantly more important than the former. After all, the concern about the origin and number of immigrants for most restrictionists seems to be contingent on the expectation of poorer economic and political outcomes. Debugging is always useful, but there is always improvements to be made. So long as the bugs do not significantly impact the important expected outcomes then that’s no reason to avoid implementation. The primary case for open borders is not built upon the expectation of the exact number of immigrants who will move but on the efficacy of markets in determining the proper number of immigrants over the ability of bureaucrats and politicians to do so.

            With the natural rights discussion, I still don’t think I can agree with you here. The moral corner cases you talk about are developed from the interaction of various axioms. Being able to defend yourself is widely accepted corner case which is not simply random but can be derived from another basic axiom such as “immoral acts should be prevented” for which more corner cases can be found. The fact that this is a complex process does not imply that it is inherently an arbitrary one. Modern physics has many corner cases from basic Newtonian laws but in no sense has been created. Furthermore, until the math, logic, and experiments get fully worked out disagreements between reasonable people are commonplace in physics. Is string theory right or is M theory better? Did the Higgs Boson exist or were we missing something? etc. None of this proves physics is an arbitrary creation of humans as opposed to a discovery by humans. I will readily admit that morality is extremely complex and harder to discover because of that, but that is not proof that morality is simply an arbitrary creation.

            Finally, I’m a bit curious about your example of the Ottoman Empire. Yes it eventually went into decline and disintegrated, but that’s been true of almost every historical state ever whether homogeneous or not. Furthermore, that ignores the centuries in which the Ottoman Empire was the dominant power of the Mediterranean basin while being a highly diverse empire. If you’re going to include an example you need to consider both it’s successes and failures. It’s also worth noting that much more homogeneous Turkey doesn’t seem to have attained anything close to the prestige of it’s more heterogeneous predecessor. Furthermore your Brazil comparison also seems a bit odd given that Brazilians currently have a higher standard of living than more homogeneous China. That gap may be closing some but a comparison of Brazil to China from the citizen’s point of view doesn’t look nearly as favorable for the more “pro-homogeneity” case. The point that Brazil isn’t likely to become a world power is also ignoring that Brazil has a much smaller population than either China or the US. In particular in competition with China, Brazil would have to produce economic outcomes almost 7 times greater per capita than China to match their economic weight. A failure to do so hardly seems to be a strong condemnation of heterogeneity.

            Ultimately we have data points both historically and currently, within and between countries. Economic theory then backs up that there is little reason to fear immigration except perhaps (though this seems up in the air) for political externalities or government welfare systems, the solution to which are keyhole solutions not blocked immigration.

    1. I think that there are different interpretations of the term “right” — the interpretation that is most commonly used on this site is that rights are presumptive or prima facie rather than absolute, i.e., if we establish that A has a right to do X, then the use of coercion to stop A from doing X faces a very high burden of proof. I know that “very high burden of proof” is a weasel word, which is why we need to flesh out in more detail the edge cases and the standard of proof needed to overcome the presumption. This post tried to do just that.

      Most rights that we think of are presumptive rather than absolute. People have a right to life — a right against being killed, to put it bluntly — but death penalty supporters argue that this right can be overridden by the state under certain circumstances. Those who support wars of liberation argue that some individuals’ right to life can be overcome if the consequences are huge (in terms of liberating a nation from an oppressive tyrant). Supporters of the right to free speech often accept restrictions on grounds of libel, copyright infringement, direct incitement to violence, obscenity, etc., though the exact nature of the boundary and the burden of proof differs based on differing conceptions of “free speech” — with the more passionate advocates of free speech demanding a higher standard of proof and fewer restrictions on free speech. As supporters of free migration, we’re exploring some of the edge cases here, partly to better understand just how strong we think the presumption should be.

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