Tag Archives: right to migrate

Do I have a right to be here?

December 14, 2015 Steven Sacco 13 Comments

Every human being has an inalienable right to migrate across their planet without restriction or fear.^¹It is impossible to place a restriction upon this right that is not animated by racism and classism.^² An immigration law is an act of violence that enforces and reinforces the idea that it is morally acceptable to hate^³ someone because of where they were born. There is no migrant crisis – there is a migration-restriction crisis. These are the presumptions I begin with and proceed from.

In 1896, my great grandmother, Nicolina “Nellie” Falvo, boarded the S.S. Algeria in Naples, Italy for the United States.^⁴ She arrived in New York City on August 15, 1896 as a 15-year old domestic servant.^⁵ It was easy for Great grandma Nellie to enter the United States because the law was different then, and with some racist exceptions,^⁶ many people were permitted to cross the border and settle indefinitely without a visa or papers of any kind.^⁷

Open Borders: The Case editorial note: Check out Vipul Naik’s posts Ellis Island and keyhole solutions and How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910)

The law is different today. Today, my great grandmother would be barred by law from entering New York City and from remaining here indefinitely, with very few exceptions. Instead of standing in line at Ellis Island, she would be received by armed police, prison and forced relocation back to Italy. If great grandma Nellie tried to cross the border today, the law would measure her against an impossibly elaborate list of arbitrary factors to judge her deserving or not deserving of entering and remaining in the U.S. What makes these factors arbitrary is not their complexity or rationale, but their lack of equity. Equity is a wonderful legal concept – more than equality, it means fairness, or more precisely it presumes that all human beings are equal before the law, and that therefore they should be treated fairly as to one another. Black’s law dictionary defines equity this way: “Fairness; impartiality; evenhanded dealing . . . The body of principles constituting what is fair and right; natural law .”^⁸

Immigration restrictions under U.S. law are not equitable because they do not first presume that all human beings are equal. Instead, all immigration restrictions are built upon the foundational idea that non-citizens may be treated differently than citizens only because they are not citizens. This difference and this difference alone justifies their mistreatment, and this is what I mean when I described immigration laws as inequitable or arbitrary – they are morally arbitrary.Immigration laws are fundamentally unfair in their application to human beings and this becomes clearer when we imagine how a rule made for non-citizens might look if it were applied to citizens. Take, for example, the immigration law that says someone may be denied legal permanent residency if that person is designated “a public charge,” that is, using certain forms of welfare for which they were nonetheless financially eligible.^⁹ What about all of the citizens who are “public charges” – the poor, the disabled, the elderly, the Wall Street bankers^¹⁰ – why not deport them? As author and open borders advocate Teresa Hayter notes:

“. . . in general people over the age of 70 receive more from public expenditure than they contribute to it, an argument corresponding to the one on immigration would have to be that such persons are undesirable and should be expelled from the country. Doubtless the same would apply to the unemployed, the severely handicapped, perhaps to religious people and artists. . .”^¹¹

The only reason this Jonathan Swift-like argument is not rejected, Hayter points out, is that it concerns non-citizens. Thus “to take this argument seriously is to contribute to the dehumanization of the migrant.”^¹² I agree with Hayter that to take immigration laws seriously is to accept that non-citizens are less human than citizens – a fundamentally inequitable idea.

Which brings me back to great grandma Nellie and the point of this article. If Nellie could come here without legal restriction, then it seems only fair that others coming in the same manner today should be afforded the same unencumbered access to enter and remain.If persons in Nellie’s position today are not given the same leave she was, how then can I, a beneficiary of the leave granted Nellie, equitably claim more of right than they to stay and remain and live and seek work here? Why do I deserve to stay and remain at all, and why don’t others? As Hayter has said of immigration controls, they give a state “the right to choose between the deserving and the undeserving.”^¹³ Many factors are often called upon in U.S. immigration law and policy to justify whether someone like Nellie or I “deserves” to be here, some of the more common ones include; birth in the U.S; time in the U.S.; having family in the U.S.; and the fact that someone will face specific kinds of danger if they leave the U.S. I consider these justifications below, and reflect on why they are morally arbitrary and unfair, and question if and why I deserve to be here.

What you will not find below are arguments against immigration controls that are rooted in economics, utilitarianism, or negative policy outcomes.^¹⁴ Instead I question whether immigration restrictions on their face can be called fair by any person who assumes all human being are equal.^¹⁵ As author and professor of history Aviva Chomsky has observed about the very idea that it is ok to restrict the immigration of people for some of the below reasons, “with a bit of critical distance, the notion appears more and more absurd.”^¹⁶

I. Do I deserve to live here because I was born here?

Nellie was not born in the U.S., and would that she had tried to enter today, she would have been punished for that fact. Under current law persons born inside U.S. territory are U.S. citizens at birth, pursuant to the clause of the Fourteenth Amendment of the federal U.S. constitution, which says “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Such people are welcomed by the law with open arms, completely and unconditionally. By contrast persons born outside U.S. territory(with the exception of some persons who have U.S. citizen parents^¹⁷) incur the law’s disdain and suspicion as “aliens.”

Open Borders: The Case editorial note: Check out Joel Newman’s post Open Borders Allow People, Not Their Place of Birth, To Control Their Lives

That an immutable characteristic like place of birth should justify discrimination contravenes the idea of equality. Professor of immigration law Hiroshi Motomora, understating what should be more obvious than it is, has pointed out the “inherent tension in immigration law- between the basic idea of national borders, which inherently discriminate between insiders and outsiders – with a sense of justice that embraces a commitment to equality.”^¹⁸ Political scientist Jacqueline Stephens, putting a finer point on it, says the idea of birthright citizenship is as incompatible with a liberal, egalitarian society as discrimination based on race or religion because it is “the epitome of discrimination based on ancestry” and thus constitutes “global apartheid.”^¹⁹ And she’s right: I did not earn my birth here; I did not chose my ancestry or pick my passport, any more than I decided my skin color or worked toward my sex at birth. How then, could I have possibly earned access to a life and a job here more than anyone else who has earned and chosen as much as I have, but been born elsewhere? Can I claim anything other than the most naked luck and arbitrary participation in the lottery we call “nationality?” I am not a person who immigrated to the U.S, who performed, what Teresa Hayter has called “staggering feats of ingenuity, courage and endurance to assert their right to move and to flee,”^²⁰ in order to be in the U.S. Instead, I was born with an American spoon in my mouth. If birthright citizen were about anything more meritorious than immutable characteristics, then maybe people like me, who exerted no effort or initiative to be here, should be deported. But of course it seems unfair to deport people who have lived here their whole lives. Yet that is exactly what the rules of deservingness do to noncitizens in identical positions – those brought here as infants, lived here their whole lives and known no other country, but still subject to deportation.^²¹ This is the brutality of birthright citizenship.

Birthright citizenship is about privilege. One effect of privilege – whether it comes from skin color, or genitalia or locos of birth –is that it bestows enormous power but asks nothing in return. It is a free lunch in every sense of the term;a gift sent to the wrong address; an inheritance from a relative you never acknowledged; the beneficiary is a spoiled child that did not chose its family. By what right do the privileged hoard the good graces of the universe? By no right, of course, that is why it is a privilege. The same can be said of the birthright privilege to remain. As Aviva Chomsky notes, “[i]llegality is the flipside of inequality. It serves to preserve the privileged spaces for those deemed citizens and justify their privilege by creating a legal apparatus to sustain it.”^²² This is why Joseph Carens hit the nail on the head when he compared birthright citizenship to the system of nobility and peasantry during the European middle ages – where your opportunity in life is dictatedentirely by the family of your birth.^²³

Some have challenged the birth-right citizenship rule, typically to exclude, not include, and this challenge, by virtue of its effort to disenfranchise some people who were born in the U.S., ironically highlights the arbitrary nature of birthright citizenship itself. The effort to deprive citizens of birthright citizenship has been a pet project of the political right in the United States at least since 1985, when a book^²⁴ introduced the idea into the minds of people looking to justify their contempt for immigrants.^²⁵ The authors and their proponents have argued, among other things, that “subject to the jurisdiction thereof” does not apply to babies born to persons who are inside U.S. territory against its laws, because they were not “subject” to the legal jurisdiction of the U.S.^²⁶ That interpretationof the Fourteenth Amendment has never been accepted by the Supreme Court,^²⁷ nonetheless, the implications of that argument against birthright citizenship stagger the mind, since its retroactive implementation would literally disenfranchise a hundred million people^²⁸ whose parents, or grandparents, or great grandparents were not U.S. citizens when their children were born in the U.S.^²⁹ I could be one of those people, if, say, my grandfather was born when great-grandma Nellie was still a citizen of Italy and not the U.S. (I actually don’t know when she naturalized). After all, if Nellie’s youngest (my grandfather) was not a U.S. citizen when he was born to her, then neither was my father when he was born, and thus neither am I.

If the idea of taking U.S. citizenship from whole families living in the U.S. for three or four generations should seem unfair or inequitable to anyone, then it’s worth asking why. Does it seem unfair because people born here to noncitizen parents are in the same position as peopleborn here to citizens? Why, after all, should one group be treated differently for reasons they can’t possibly control?Yet the same can be said of birthright citizenship as it exists today. Birthright citizenship deprives the unluckily-born outside the U.S. of rights for immutable reasons, ones related to ancestors and parents they had no choice about. Nellie would have no right to enter the U.S. because she was unlucky enough to have had a mother who went into labor outside its borders. Birthright citizenship excludes persons born outside the U.S. just as unfairly as would a rule precluding birthright citizenship altogether –in both scenarios people are denied rights because of immutable characteristics.

Do I deserve to live here because I was born here? Equitably speaking, if I don’t then it’s difficult to say who does, and if I do, then it’s equally hard to say who doesn’t.

II. Do I deserve to live here because I grew up here?

Another justification for identifying those who deserve to be here from those who do not, is by bean-counting the number of years they can claim they’ve lived within the U.S. The theory is that the longer a person lives here, the stronger their claim to continue to live here.^³⁰ One relatively rare form of relief from deportation, for example, is called “cancellation of removal,” and it applies the bean-counting logic. Upon a showing of a number of other arbitrary factors,^³¹ cancellation of removal may be available to an undocumented non-citizen whois in the U.S. against its unjust laws for ten years. Another, even rarer form of relief will allow someone to have permeant legal residency if they’ve accomplished the difficult feat of remaining undocumented inside the U.S. continuously since January 1, 1972.^³² Length of time in the U.S. has also been identified as a “favorable” factor in any discretionary grant of permission to remain in the U.S.^³³

First, the argument that a person deserves to live in a place more than other people because they grew up there is itself an argument that is not,in practice, applied as consistently to non-citizens as it is to citizens. For example, east-coaster that I am, I have never set foot in California or Kansas or Alaska, yet the millions of non-citizens who have called these places home for years or decades have less of a right to be there than I do, because they’re paperwork is different? I, who could not tell you which way Sacramento is from Los Angeles, have, in fact, a legally absolute right to travel, live and work in LA, while someone with different paperwork who has lived in LA enough years to memorize every interstate number may have no such right.

Open Borders: The Case editorial note: Check out The Difference Between an Illegal Immigrant and Me: A Little Memoir and Some Questions It Raises by Robert Higgs

More to the point though, why should my three-plus decades in the U.S. and, say, my two years living in New York City, make me more deserving to live here than someone with fewer years? Why should the accumulation of time in any one location (unearned time vis-a-vis accidental birth, at that) by bootstrapping, create an exclusive right to accumulate more time in that same location? I am here, therefore I should be?

Even assuming time plus geography equals superiority of right to reside, the equitably arbitrary nature of that rule is exposed when one attempts to apply it: Recall that ten years of residence is what an undocumented person^³⁴ would need to get “cancellation of removal.” The law says ten, and it means ten.^³⁵ So, ten years is enough to deserve to stay here but not nine, never nine – nine would be a ridiculous assertion, as would nine and a half, or nine and three quarters.^³⁶ Five years or eight years could never do it, for some just-because reason. And what of the twelve year old child who has lived here for nine years, three quarters of her life? Shouldn’t she have more of a right than a fifty year old who’s lived here for ten years, only one fifth of their life? Ten, in this case, is a number based on little more, it seems, than the vague emotional sense that a decade is a pretty long time, and if deservingness is to sprout out of any length of time, a decade seems a safe duration to choose.

I understand that time is how we measure home – length of time builds bonding with places and the more time the greater the pain of separation. So perhaps the law is simply saying it’s less inclined to tear someone away from the U.S. the longer they’re here, for, say, humanitarian or sentimental reasons. Of course people shouldn’t be torn from places they love, but neither should they be exiled from places just because they lack nostalgia for them. Isn’t nostalgia itself an unfair standard to measure deservingness to enter and remain? Does that mean a ten year old citizen is more easily deportable than a ninety year old citizen, since the latter is clearly more closely bonded with their city or state? What about the U.S. citizens who live in a place, but don’t like it very much (say, teenagers who are tired of their boring hometown), should they be forced to go? No, of course, because citizens cannot be deported at all.^³⁷ Thinking it through reveals there is nothing equitable about bean-counting years as it treats non-citizens compared to citizens.

Nellie eventually lived in the U.S. for several decades after her arrival, but before doing so, of course, she could not have claimed deservingness on this ground. I have lived in the United States almost since I was born here, in July 16 of 1982. (I say almost, because counting all the time I’ve spent outside the U.S. leaves me with thirty one and a half years, give or take, of living inside the territory of the U.S). The rationale in immigration law implies that these three decades are a sort of fertile temporal soil out of which my deservingness has sprouted. Yet, as we’ve seen, even for the non-citizen born outside the U.S. who nonetheless lives here for the same period of time, the law says the same is not true for them. One potential retort to the magical ten year line, or for that matter to birthright citizenship, or any other arbitrary rule, is that “we have to draw the line somewhere.” But actually, the whole point of a thousand blog posts on this very site is that no, actually, you don’t have to draw the line anywhere.^³⁸ Immigration law is fundamentally unfair precisely because it presumes it can draw a line at all.

III. Do I deserve to live here because I have family here?

The manifest of the S.S. Algeria does not show Nellie arriving with any relatives, though she was only 15.^³⁹ It’s possible that she had relatives here already, but it’s also possible she had no family here to greet her. In which case Nellie’s lack of family in the U.S. would today probably keep her out of lawful status her entire life, if not out of the country itself. The law makes out a number of ways for noncitizens to remain in the U.S. if they can show some special relationship to a U.S. citizen or legal permanent resident. For example, remember “cancellation of removal”? In addition to the ten years in the U.S., the undocumented noncitizen would have to show, among other things, that their deportation would result in “exceptional and extremely unusual hardship” to their U.S. Citizen of green card-holding spouse, parent or child.^⁴⁰ Putting aside for a moment the fact that this “exceptional and extremely unusual” standard is extremely high and incredibly difficult to reach,^⁴¹ this relief shows that the immigration court is concerned, not with the life or death of the noncitizen(indeed their deportation could result in their certain death for all the immigration court cares (more on that below)) but with the “hardship” caused to the citizen or LPR. In other words the non-citizens presence in the citizen’s life must benefit them so much that their deportation would cause them this astronomically high level of “hardship.”

Open Borders: The Case editorial note: Check out Nathan Smith’s blog post The right to invite

But whether or not a person’s presence benefits or does not benefit a U.S. citizen is really just a way to measure someone’s worth or desirability based on how much use they are to others. The law of “cancellation of removal” is saying the non-citizen has no inherent worth, not by themselves anyway – their value is measured only by how much their absence does or does not negatively affect citizens, whether financially, socially or otherwise. This is an unambiguous statement about the inferiority or sub-human character of a person because they were born elsewhere. Of course plenty of citizens give no benefit to other citizens, but we don’t deport them. There are also many citizens who have no spouse or child in their lives, such that their deportation would really affect no child or spouse negatively, except themselves(for example,former Chief Justice of the Supreme Court David Souter or Oprah Winfrey) – but the law will not deport them.Reducing a person to what they’re materially “worth” is what the law does when it asks about their “family ties” and how much “hardship” they would cause the citizen if they were exiled from the country. The inquiry is just a euphemistically veiled process of treating a living human being like a broken kitchen appliance, which is to say like an object, and disposing of them with proportional inhumanity when they’re without use to a citizen. This idea that a noncitizen’s worth can be altered only by way of their relationship to a citizen is also the foundational idea for how many people acquire the infamous green card, or permanent residency in the U.S. Unless you can get a green card through an employer (itself a difficult task),^⁴² or something called the “diversity lottery” (you can’t get more arbitrary than a lottery!),^⁴³ or you’re one of the rare ones who gets some form of (very) rare humanitarian relief,^⁴⁴ acquiring a green card through a close family member is just about^⁴⁵ the only other way one can hope to acquire permanent residency in the U.S. Assuming you meet a handful of threshold criteria,^⁴⁶ you might be able to get a green card, for example, through a spouse, parent,twenty-one-year-old-or-older child, or sibling. Without one of these relationships the law will deem the noncitizen undeserving of living in the U.S., classifying such a person as an invisible non-human creature, until they are bestowed with equality and humanity through their marriage to or parenting of a citizen. Again, this rulesuggests that citizens can bestow worth upon noncitizens, but not vice versa – implicitly assigning more humanity to one than the other.

As it happens, I am not married to my partner, so if I lost my citizenship through, say, some vicious reinterpretation of the Fourteenth Amendment, my partner wouldn’t be able to help me stay here at all – our relationship, like my worth as a person, would be invisible to the law.I do have two parents and a brother in the U.S. who are U.S. citizens, and I suppose, in a scenario where I was without U.S. citizenship,I could rely on them as the measure of my value as a human being. I’m certain, however,that were I to try and make out a claim for “cancellation of removal,” I could absolutely not show “exceptional and extremely unusual hardship” to thesefamily members in any event(a standard which is, it bears repeating, unbelievably high),^⁴⁷ because they simply don’t rely on my enough to make my departure “extremely unusual,” to them. Yet, no one’s ever come knocking on my door with a one-way ticket for Naples or forced me to weigh my right not to be exiled from my life in the U.S. against how useful I am to other, more privileged people.

IV. Do I deserve to live here because I would face danger elsewhere?

To quote Teresa Hayter, “I do not accept the moral distinction between political refugees and those who cross frontiers in search of work.”^⁴⁸ This is not meant to lessen at all the moral imperative of giving sanctuary to the asylum seeker – but is instead meant toaffirm the right to immigrate as so fundamental and unconditional, that the reason for a person’s migration is irrelevant. We should not even reach the question of why the person is migrating because, as Hayter put it, “the people best able to decide whether they need to migrate, or to seek refuge, are migrants themselves.”^⁴⁹ Any implication that an asylum seeker has even a smidgen more of a right to enter and remain than someone coming for different reasons, serves to deny everyone their fundamental right to migrate.

The most common way a non-U.S. citizen might seek safety in the U.S. from danger in their home country is through asylum – but qualifying for asylum is notoriously difficult because it requires applicants to squeeze through some very narrow criteria. Like birthright citizenship, the narrow criteria of asylum eligibility highlights the arbitrariness with which the law excludes so many people, even under asylum law’s most liberal interpretation. Under asylum law, a noncitizen may remain in the U.S. if they can demonstrate that they have been persecuted or have a “well-founded fear” of future persecution in their home country. But actually, it’s much narrower than all that – because the non-citizen has to show they were or will be persecuted on account of their race, religion, nationality, their political opinion, or their “membership in a particular social group”^⁵⁰– persecution for any other reasons, or danger from any other source, won’t get you asylum.^⁵¹ But actually, it’s even narrower than that, because the non-citizen also has to show their government can’t or won’t protect them from the persecutor, and that theycan’t relocate safely within their own country, and they have never participated in the persecution of anyone else themselves, oh and that they’ve never committed a “particularly serious” crime anywhere.^⁵² If you can’t show all of these things – and I do mean all of these things – the person can be deported, even if their deportation would lead to their death, or immense suffering, or a life of grinding poverty, or anything else really.^⁵³ That means there are many more scenarios that asylum does not protect you from than the ones it does protect you from – crushing poverty, natural disasters, disease, etc. – even if the end result is the same and just as likely: your bodily harm or death.^⁵⁴

Suppose Nellie, 15 years old, were someone who faced poverty, or sickness, or death or murder if returned to Italy (I have no idea what she actually faced if she was returned to Italy, although poverty is a safe bet). The question of who, under asylum law, “deserves” to live in the U.S. (this often means who deserves to live at all) is ultimately in such tension with the idea of equality, that it does not take much effort to imagine multiple scenarios that highlight this. Let’s list some scenarios in which asylum law would not protect someone like Nellie from harm. Feel free to reflect on whether or not you feel the scenario increases or decreases Nellie’s deservingness to enter the U.S. as compared to someone eligible for asylum, which is to say the merits of Nellie’s right to live at all (I would invite you to substitute your own loved one’s name for Nellie’s):

Suppose Nellie faces lethal poverty in Italyif she is not permitted to enter and stayin theU.S., does she deserve to enter and stay as much as a traditional asylum seeker? What if Nellie is certain to return to homelessness or famine? What if a volcano went off in Italy and covered Naples in a pyroclastic flow – does she deserve to flee and enter the U.S. as much as an asylee now? Suppose Italy is engulfed by civil-war, or the government collapsed and Naples is just Mad-Max-like bedlam ruled by pale gangsters in spikey cars, does she deserve to flee and remain in the U.S.? What if Naples has the highest murder rate in the world? What if it has the highest rate of accidental traffic death in the world? What if turn-of-the-century Italy is overcome by the ebola virus? What if it’s sinking into the sea? What if the water was tainted or a chemical-plant exploded and there was just a higher risk of poisoning or food-born illness, not certain doom, but a much higher likelihood of doom, does she deserve to enter as much then?What if it’s just a higher risk of doom instead of a much higher risk? Are you willing to let your loved one risk it? Forget big macro-level causes of death, what if Nellie is being chased by a bear, and the only way to save her life is to let her cross the border? Replace the bear with a chainsaw-wielding maniac, how does her life fare against an asylee’s life now? What if Nellie needs medical attention she can’t get in Italy? What if she needs medication or care for a chronic illness she can’t get in Italy, and staying there is certain to cut her life short? What if Nellie’s crossing the border is the only way to save someone else’s life? Maybe she has blood or a kidney someone needs. How about if that someone else is a noncitizen? If they’re a citizen does your answer change? What if Nellie has a toddler and Italy has the highest infant mortality rate in the world? What if it’s your toddler? What’s if it’s you?

Open Borders: The Case editorial note: Check out John Lee’s blog post Junk the international refugee system, and open the borders

How little it would matter to any of us exactly what the cause or method of our loved one’s death or maiming is – all we would care about is the fact that they faced death or maiming at all. How unwilling we would be to weigh in our minds their merits of living or even their merits of being happy, against someone else’s “stronger” claim to life or happiness. Why then should immigration law distinguish in the same way between other people’s lives – between who deserves sanctuary from harm and who doesn’t? Why should, in each scenario above, a non-citizen be denied asylum (and they would be, in each of those scenarios above, with the possible exception of the chainsaw wielding maniac^⁵⁶), denied the right to live, or the right to be safe, because their method of death or maiming just didn’t fit one of the five protected grounds?^⁵⁷ Why would we limit at all the number of grounds for which we’re willing to protect human life or human freedom?There are few examples outside asylum that show as clearly as it just how unambiguously the law values the lives of non-citizens less than citizens.

V. Do I deserve to live here because I am a human being?

I have a right to be here because I am a person and this is my planet. I’m unwilling to gauge anyone else on any criteria beyond those. These laws raise questions about what broader principles of inequity are at work behind them, but here are some possibilities: noncitizens are worth less than citizens; humanity is tied to citizenship; non-Americans are sub-human; the value of human life is contingent on locus of birth.

When a person’s right to something is not recognized, the law must instead rely upon an arbitrary judgment of their deservingness in order to determine their fate. Toask whether someone deserves to be free or safe is to make that person’s wellbeing entirely dependent on the discretionary mercy, compassion or contempt of someone else. Author and professor of political science, Ayten Gündoğdu describes this condition of the immigrant as one of “rightlessness,” that is, having not even the right to have rights, becausethey have “lives that are dependent on the favors, privileges, or discretions of compassionate others.”^⁵⁸ Gündoğdu observes that relying on the “capricious moral sentiment” of others, instead of enjoying the protection a right would afford them, “risks unmaking the equal personhood of migrants.”^⁵⁹ A person dependent on compassion to be alive is a person without a right to be alive. Without a right to be here a person loses their status as an equal human being altogether, and they will be subjected to state violence vis-à-vis a thousand arbitrary rules animated by the moral inequity of rightlessness. Sorting through the cruel minutia of U.S. immigration law, I can find no rational justification for why I have more of a right to be here than someone else born, raised, or running from somewhere else. And I can see no reason in the idea that my great grandmother or someone like her, had or would now have less of a right to enter and remain than anyone else born or raised or related to someone here. All I can see in the immigration laws are double standards – one set of rules for this group of people and another set of rules for that group of people – all justified by the dehumanizing idea that U.S. citizenship is the arbiter of human worth.Either everyone has a right to be here, or no one does. Anything in between is a lie.

Footnotes

1 More on this right to come in future posts.

2 “Nationality itself has its origins in racial thinking and still bases itself on birth and origin in ways that echo racialism.” Aviva Chomsky, Undocumented: How Immigration Became Illegal 14 (2014).

3 I do not use the word ‘hate’ lightly. In my view, racialism and white supremacy cannot be separated from U.S. immigration law and policy (I’m not even convinced they can be separated from the very concept of nationality). See supra note 2. Like the ideas that fuel racist ideology, the ideas encouraging immigration restrictions are often sub-conscious and the person acting on them may be unaware they are doing so, or may believe themselves to be unbiased. Nonetheless, these ideas come from a place that is very much fueled by hate, inasmuch as the word ‘hate’ is semantic shorthand for those beliefs that allow us to de-humanize other human beings. That is how I’m using the word here.

4 See ship manifest on file with author.

5Under “occupation” the shipping records list my great grandmother’s occupation as “Help”. See shipmanifest on file with author.

6 The Chinese exclusion Act of 1882 prevented persons of Chinese or Japanese ancestry from migrating to the United States. [FIX!] See Erin L. Murphy, “Prelude to Imperialism”: Whiteness and Chinese Exclusion in the Reimagining of the United States, 4 J. of Historical Sociology 457-490, 476 (Dec. 2005).

7 See Hiroshi Motomura, Immigration Outside the Law 67-68 (2014).

8 Black’s Law Dictionary (9th Ed., edited by Bryan A. Garner) 619 (2009).

9 See 8 U.S.C. 1182(a)(4).

10 See, e.g.,http://money.cnn.com/news/specials/storysupplement/bankbailout/.

11 Teresa Hayter, Open Borders: The Case Against Immigration Controls (2d Ed.) 2004, at 161

12 Hayter, at 161.

13 Hayter, at xxV.

14 Many others have already made these argument far better than I can. At any rate, one does not need to reach or rely on these if one accepts that immigration restrictions are wrong in principle, regardless of their outcome.

15 Of course I’m far from the first to confront these questions – others have asked them before and in more eloquentprose than I (See, for example, the writings of Joseph Carens, Linda Bosniak, or other authors referenced here). I engage these questions again here both because (our world being what it is) they bear repeating, and because I think it is important for immigration lawyers, who may be seen as proponents of the immigration system, to be vocal about their personal opposition to immigration restrictions generally.

16 Aviva Chomsky at 20.

17 See 8 U.S.C. § 1401.

18 Motomora at 98.

19 Chomsky at 36.

20 HAYTER, at 152.

21 In one 2009 case, for example, a man who was “born in Mexico in 1972 and 1973,” was nonetheless ordered deported. See Hernandez-Aguilar v. Holder, 2009 WL 4067644 (9th Cir. 2009), 86 No. 46 Interpreter Releases 2932, at 2935 (2009).

22 Chomsky at 19.

23 23http://opinionator.blogs.nytimes.com/2014/11/25/should-immigrants-lose-their-human-rights/#more-155068

24 Rogers Smith & Peter Schuck, Citizenship Without Consent: the Illegal Alien in the American Polity (1985).

25 See Cristina M. Rodriguez, Symposium: The Second Founding: The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment, 11 U. PA. J. CONST. L. 1363 (2009).

26 See Rogers Smith & Peter Schuck, Citizenship Without Consent: the Illegal Alien in the American Polity (1985).

27 See, e.g.,U.S. v. Wong Kim Ark, 169 U.S. 649, at 688 (1898)(“. . . the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well-considered opinions of the executive departments of the government, since the adoption of the fourteenth amendment of the constitution.”).

28Jessica Jerreat, The map that shows where America came from: Fascinating illustration shows the ancestry of EVERY county in the U.S., The Daily Mail (Sept. 1, 2013),

29 In theory, of course – barring any statute or like-policy that would preclude a retroactive application of such a catastrophic idea.

30 Actually, this justification is not even afforded to non-citizens in immigration law as much as you might imagine – and there are plenty of circumstances where living here for decades earns you nothing in the eyes of the law, save a prison cell and a flight back where you came from.

31 In addition to continuous presence in the u.s. for ten years, the person must have “good moral character,” not have been convicted of certain crimes, and demonstrate that their deportation would result in “exceptional and extremely unusual hardship” to their U.S. Citizen of Green card holding spouse, parent or child. See 8 USC 1229b(b)(1).

32 See 9 USC § 1259.

33 33SeeJeh Charles Johnson, “Memorandum: Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” November 20, 2014; John Morton, “Memorandum: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens,” June 17, 2011

34 For what it’s worth, I hate this term “undocumented,” but I have not year heard of any more polite alternative to describe persons residing in U.S. territory without the permission of the U.S. government. I welcome others to volunteer alternative nomenclature because I am actively seeking out the same.

35 35See, e.g., Galvez-Martinez v. Holder, 356 Fed.Appx. 47, at 49 (9th Cir. 2009) (“Petitioners’ argument that Jose’s longer physical presence in the United States should be imputed to his daughter Alma so that she might satisfy the 10-year statutory presence requirement of 8 U.S.C. § 1229b(b)(1)(A) is foreclosed … [t]he BIA correctly found that Alma lacked the 10 years of physical presence necessary to qualify for cancellation of removal.”)

36 There is actually an exception to this rule – a temporary absence of no more than 90 consecutive days is permitted, but if the aggregate amount of time outside the U.S. is 180 days or more, then you areineligible, strict standards that open themselves up to the same criticism the strict 10 year-rule does. See8 USC § 1229b(d)(2).

37 See Lopez v. Franklin, 427 F.Supp. 345, 347 (E.D.Mich. 1977).

38 See literally any post on this website.

39 See ship manifest on file with author.

40 See 8 USC 1229b(b)(1).

41 For example, the fact that a non-citizen’s U.S. citizen child, upon the non-citizen’s deportation, would suffer from poverty and poor schools in their home country was simply not unusual enough, let alone extremely unusual, to rise to the level of the kind of hardship you’d have to show. SeeIn Re: Angel Lojano A.K.A. Manuel Pauta, 2012 WL 1705667, at *2.

42 For example, you might be able to get a green card through employment if you were an Iraqi translator for the U.S. government, you worked on the Panama Canal, you’re “an alien of extraordinary ability,” (i.e. you’re a genius in your field, and not, as it sounds, a Kryptonian) or if you can show there aren’t enough “U.S. workers able, willing, qualified and available to accept” the job you want. See, e.g., U.S. Immigration and Customs Service’s “Green Card Through A Job” at http://www.uscis.gov/green-card/green-card-through-job.

43 See 8 U.S.C. § 1153(c).

44 Only a few forms of humanitarian relief, each more difficult to acquire than the last, provide a path to a green card,including such options as asylum, relief under the Violence Against Women Act, special immigrant juvenile status, a U-visa (given to certain non-citizens who were the victim of crime in the u.s. and reported that crime to the police) or T-visa (for victims of human trafficking). If you’ve lived in the U.S. since January 1, 1972, you’re also eligible for a green card, but there aren’t many undocumented people left who’ve managed to live under radar for forty three years.

45 You can also get a green card via that cancelation of removal thing I mentioned before, or by being one of the
slippery 43+ year olds whose evaded capture since 1972.

46 You’ve entered lawfully, or in some cases you have no unlawful presence, or you have a waiver for one of these, or there’s actually not a ten year wait for someone in your category, etc., etc., etc.

47 “Extremely unusual” means the hardship must be “substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here,” so even though a mother demonstrates that her deportation would cause her daughters, aged 11 and 6, to “face complete upheaval in their lives and hardship that could conceivably ruin their lives,” in Mexico, this still does not rise to the level of “extremely usual,” because any child forcibly taken away from their family and lives in the U.S. would have their lives ruined. See In re Andazola-Rivas, 23 I. & N. Dec. 319, at 322-324 (BIA 2002).

48 Hayter, at vii.

49 Hayter, at xxv.

50 (a phrase that is legally more complicated than I can possibly relate here).

51 See 8.S.C. § 1158(a).

52 See 8 U.S.C. § 1158(b).

53 One possible exception to those denied asylum is relief under the Convention Against Torture (CAT) – which doesn’t require persecution on one of those five protected grounds, but does demand you meet a much higher burden of proof – vastly reducing the number of people who can seek refuge under CAT.

54 See, e.g., Begzatowski v. I.N.S., 278 F.3d 665, 670 (7th Cir. 2002) (“. . . if war, famine, political violence or other dangerous conditions affect an entire nation, those conditions cannot establish an individual claim for asylum.”). Sichone v. Gonzales, 183 Fed.Appx. 50, 51 (2d. Cir. 2006) (finding Zambian applicant ineligiblefor asylum, even though “however regrettable” it may be, the applicant is HIV positive and will not have access to medications in Zambia.); Fakalawa v. Mukasey,279 Fed.Appx. 573 (9th Cir. 2008) (finding applicant ineligible for asylum because she “only fears a life of poverty,” if returned to Fiji).

55 Take, for example, the guy who was not eligible for asylum even though his home was destroyed by a Hurricane and he was indebted to the mob. See Cruz-Funez v. Gonzales, 406 F.3d 1187, 1190-91 (10th Cir. 2005).

56 If, say, the maniac were trying to kill Nellie because of one of those five protected grounds and Italy could not protect her from said maniac, then she might have an asylum claim – but if the maniac were just a serial killer, then she would not no claim.

57 One might qualify for relief for similar relief to asylum, such releif under the Convention Against Torture (CAT) where they don’t qualify for asylum, but each comes with their own comparably narrow, inequitable criteria. See, e.g., Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005).

58 Ayten Gündoğdu, Rightlessness in an Age of Rights 93 (2015).

59 Gündoğduat 113.

Terror in Paris and Open Borders

February 10, 2015 Nathan Smith 9 Comments

My recent exchange with Bryan Caplan about tolerance (see here, here and here) suddenly seems terribly topical in light of events in France last month, where 12 people were killed in a murderous attack on the French satirical newspaper Charlie Hebdo, by gunmen shouting “Allahu Akbar!”

The attacks may strengthen anti-immigration parties in Europe, and they have provoked attacks against Muslims. They seem to lend support to the tolerance=>migration restrictions argument that I mentioned at the end of the last post in my back-and-forth with Caplan:

2. Tolerance => Migration restrictions. Tolerant moral and social values are a distinctive Western achievement which will be diluted if we let in foreigners from less tolerant cultures. So we should keep most foreigners out.

Now, you don’t have to think tolerance, as a concept, does much useful work in ethical or political argument, to think this kind of intolerance is a big problem. In one sense, tolerance is beside the point: what France needs to do isn’t so much to promote tolerance as to prevent murder. Still, if intolerant attitudes were the motive for murder, promoting tolerance might promote public safety. But public safety would be equally promoted if intolerance were kept peaceful. And peaceful intolerance– scorn and ostracism– for the kinds of attitudes and views that lead to violent intolerance, might be an effective way of making such attitudes scarce.

My take on tolerance, Islam, and open borders may sound paradoxical. I view Islam as inherently, and perhaps incorrigibly, intolerant and violent. But I nonetheless believe that the West and the world generally should be much more open to Muslim immigrants. Why? Because even Muslims shouldn’t have to live under Muslim rule.

On Charlie Hebdo

The attackers were avenging the paper’s depictions of the prophet Muhammad, and most recently, a cartoon depicting two men kissing, one in Muslim dress and the other labeled “Charlie Hebdo,” with the slogan “Love is stronger than hate.” From a Muslim perspective, I suppose, the cartoon is pornographic as well as blasphemous. I agree with the attackers in considering it offensive, though obviously not in how they responded. It’s symptomatic of the contemporary West’s degradation of the old Christian virtue of love into mere sensuality, as well as of its obsession with homosexuality. And there is a bitter irony in a cartoon that pretends to proclaim love while deliberately insulting those for whom it is pretending to advocate love.

I found the pope’s remarks in the Philippines refreshing. “Killing in the name of God is wrong,” he said, but also that it is wrong to belittle someone’s religion, adding that if a friend “says a swear word against my mother, then a punch awaits him.” I’m wary of the suggestion that violence can be an appropriate response to speech, but as a moral matter, we should have strong inhibitions against mocking what others hold sacred. If we do so– as God sometimes does in the Bible (or even more memorably, Elijah)– it should be with the loftiest of motives: to challenge evil powers, dispel myths, and save souls. But while I don’t think one should gratuitously offend Muslims by depicting Mohammed, serious criticism of Islam is another matter. We need more of it.

On Islam

It can be conceded, I suppose, that the Charlie Hebdo perpetrators don’t represent Islam: they went a bit further than most Muslims would. But the idea that Islam is a “religion of peace” is only wishful thinking; Sam Harris is closer to the truth. The advent of Islam ushered in a thousand years of tyranny in the lands the Arabs conquered, and as Rowley and I showed in a 2009 paper, there is a striking democracy deficit in the Muslim world to this day, especially in the historic heartland of Islam, the territories conquered by Islam before 800 AD. We found that there were no democracies at all in Islam’s historic heartland. Moreover, the correlation between GDP and democracy is reversed in Islam. In the non-Islamic world, higher GDP per capita is associated with a greater likelihood of democracy; in Islam, with a lesser likelihood. Islam’s freedom deficit is worse than its democracy deficit. The lack of religious freedom, in particular, is strikingly captured by the fact that apostasy is legally punishable in most Muslim countries, sometimes by death, which seems to have been the normal penalty for apostasy before the arrival of European colonialism.

Tolerance vs. freedom of conscience

I am not all that worried about Islam’s democracy deficit per se, since I regard democracy as a considerably overrated form of government. But democracy is, so to speak, overrated for a good reason, namely, that it is correlated with something much more important: freedom of conscience. But the freedom that Charlie Hebdo exercised, and that the terrorists violently cut short, is not a part of what I consider freedom of conscience.

There are a number of expressions which some hear as nearly synonymous with “tolerance,” but which, under closer scrutiny, vary in meaning, though they also overlap. “Freedom of speech” is a venerable phrase, but we don’t mean it literally. By what principle is it OK to prohibit perjury, false advertisement, inciting a crowd to violence, libel, and certain IP violations, if “freedom of speech” is sacrosanct? And on the other hand, how are Charlie Hedbo‘s cartoons protected by freedom of speech? “Freedom of thought” is very important but doesn’t demand enough: in a narrowly logical sense, a prisoner in chains is still free to think as he likes. “Free inquiry” is a noble ideal, in defense of which Socrates was martyred; but we want the freedom not only to inquire after truth, but to preach it when we find it. “Freedom of the press” makes the extension of free speech to printed material explicit; “freedom of expression” sounds vaguer but seems to cover all media.

“Freedom of religion” is narrower than freedom of speech, but includes elements of “free association” as well, e.g., the right to assemble with fellow believers to worship God. Problematically, “freedom of religion” crosses the line between speech and action, and it violates freedom of religion to be forced to bake a cake for a gay commitment ceremony even if you’re allowed to protest all the while that you don’t believe in it. It might also be a violation of freedom of religion to have to work on Sunday, or provide contraceptive coverage for one’s employees, or refrain from giving alcohol to children. Free speech sometimes crosses the speech/action divide, too, e.g., if people demand the right to conduct public protests– disrupting traffic, etc.– in the name of free speech.

My way through this confusion is to stress freedom of conscience as the key principle that explains all the others and defines their scope. Freedom of conscience is my right to obey conscience, to do what is right and refrain from doing what is wrong. “Free speech,” “free press,” and “free expression” mean freedom to state the truth as I see it, in whatever medium is most expedient, to speak as conscience compels me to speak. But my conscience doesn’t necessarily deny to the government a say in what media are expedient. If, for example, all print media were prohibited for environmental reasons, “freedom of the press” in the literal sense seems clearly extinguished, but I would not regard that as a violation of freedom of conscience. “Freedom of religion” is of special importance because conscience obliges me to worship God, and more generally, for Christians, what religion commands and what conscience commands are essentially identical. “Freedom of association” requires not only that I be able to assemble with fellow believers to worship God, but also that I be able to collaborate with a team of bloggers to advocate open borders, because both of those activities arise from the demands of conscience; but it is not a violation of freedom of conscience, even if it is a curtailment of freedom of association, if I’m forbidden to found a company with a whites-only hiring policy.

I would regard an environmentalist prohibition of all print media as very foolish, and I’m skeptical about whether the government either has the right or is well-advised to prohibit workplace discrimination. But since such policies, even if unwise, do not violate freedom of conscience, I am relatively relaxed about them. But when freedom of conscience is violated, when the government commands someone to do what is wrong, or forbids someone to do what is right, a deep alienation occurs, and the social contract is shattered.

Patrick Henry’s ultimatum, “Give me liberty or give me death!” might have been a bit overwrought as a response to the mild misrule of King George III. But it is absolutely correct as a response to threats to freedom of conscience. A person who would surrender his freedom of conscience even in the face of certain death is, in the end, a person not worth knowing, a person whose actions and utterances have no real meaning, a person without value, except inasmuch as he might repent someday and become brave, become fully human, become real. Why trust a person’s utterances, when they are only a function of his circumstances? Society bribes us in all sorts of subtle ways to lie, if we’re willing to be bribed. Socrates and Jesus preferred death to denying the truth, to doing what is wrong. So should we all.

I have a tentative and vague preference for democracy over the alternatives. I have a firm, definite, and strong preference for market capitalism over the alternatives. But neither democracy nor market capitalism matters much relative to freedom of conscience. Any amount of unaccountable autocracy or needless and inefficient regulation is preferable to being forced by the state to do what one knows is wrong, or prohibited from doing what one knows is right.

In defense of Voltaire

Now, in Bryan Caplan’s recent dissent from the militant tolerance of Voltaire, I detect a reluctance to be drafted into fighting for freedom of the press as exercised by Charlie Hebdo, which I share:

If standing up for your own right to utter truth X is a grave mistake, why is standing up for someone else’s right to do the same any better? Indeed, common sense morality says you have only modest obligations to help perfect strangers in dire need. Why then should you assume a blanket obligation to die in defense of strangers’ rights to speak when they could easily remain silent?

But my reasons are a bit different. The conduct of Charlie Hebdo was gratuitously offensive. It certainly didn’t deserve death, but they didn’t deserve to be elevated to hero status by mass marches either, and it might, just possibly, be sensible for civilized societies to say that Charlie Hebdo kind of had it coming, and that protecting such useless, reckless, and vicious behavior isn’t the best use of scarce police resources. But when Caplan writes that…

Sure, you can devise hypotheticals where courting death by asserting the right to say X is an admirable choice. Maybe standing up for the right to say X will, via your death, save many innocent lives, or replace an awful tyranny with something much better. Maybe you only have ten minutes left to live, and want to go out with a noble bang. Except in such unusual circumstances, however, throwing your life away to speak a few forbidden words seems not only imprudent, but wrong. Any true friend would beg you to come to your senses and shut your piehole.

… he treats as odd “hypotheticals” what is really the normal situation of the courageous person speaking truth to power. Socrates and Jesus, the apostles, the Christian martyrs, and Martin Luther King all spoke truth to power and died for it. Just for that reason, their historical impact is wildly disproportionate to their numbers, and infinitely beneficent. For everyone who spoke truth to power and died for it, there are probably a hundred who spoke truth to power knowing that they might die for it, and where would the human race be without them? How much of the moral progress of mankind, in the end, is traceable to such people? Half? Nine-tenths? As the song says, “He freed a lot of people, but it seems the good, they die young.” Bryan Caplan calls himself (or at least invites others to call him) a “coward” at the end of the post, and says that “staying alive> asserting your own right to say truths.” A nation of such cowards is a nation of slaves.

The point Caplan is missing is that we all face a collective action problem, which is captured in (let’s call it) the Parable of the Playground. Suppose there are 50 Nerds in the playground, and 1 Bully. The Nerds are nice, tolerant, productive, independent-minded people who make the world a better place. The Bully is an intolerant, parasitic thug. Collectively, the Nerds are stronger than the Bully, but the Bully is stronger than any 1 Nerd alone. The Bully threatens to beat up any Nerd who speaks against him. If the Nerds think “staying alive > asserting your own right to say truths,” then no one will ever be able to tell the truth. But if the Nerds believe, with Voltaire, that “I disapprove of what you say, but I will defend to the death your right to say it,” then as soon as the Bully enforces his rule against one Nerd, he’ll be challenged and defeated by them all. Such is the foundation of courage on which free societies are built.

So we should certainly be ready to fight for our own freedom of conscience and that of others; but what is the scope of this freedom? I have said that freedom of conscience is the freedom to do what is right and refrain from doing what is wrong, but our knowledge of what is right and wrong must be fallible, since there is so much disagreement about it. So should freedom of conscience mean the freedom to do what is really right, or the freedom to do what we think is right? Here a balance must be struck: some accommodation of eccentric ideas of right and wrong is needed, but we can’t respect the freedom of conscience of the armed jihadist. It’s all manageable enough as long as there is a certain degree of right-minded consensus about what conscience demands, such as prevailed in 19th-century America, where almost everyone was a Christian of some sort. In today’s America, afflicted as it is with people who think it’s morally acceptable to force photographers to serve at gay commitment ceremonies, I have grave doubts about the sustainability of freedom of conscience.

On courage

And that is one reason why I’m relaxed about Muslim immigration: I’m less afraid of Muslim intolerance than of the home-grown sort. I’d much rather have occasional random terrorist attacks against the publishers of gratuitously offensive cartoons, than Swedish-style arrests of pastors for preaching against homosexuality. Doubtless, the Charlie Hebdo attackers wouldn’t like an outspoken Christian apologist and critic of Islam like myself. But I’m much less afraid of them than I am of the PC police and the rising LGBT state.

More importantly, though, I want freedom of conscience for Muslims, and I think they’re unlikely to get it in their home countries any time soon. If you believe, as I do, that Islam is a false religion, then you ought to be very concerned about the fact that hundreds of millions of people live in countries where they are forced to believe it, or pretend to believe it, on pain of losing civic rights or even their lives. While I’m an unapologetic supporter of the 2003 liberation of Iraq, I think it’s clear that the West can’t impose freedom, least of all religious freedom, on the Muslim world by force (even if we can and should overthrow the worst totalitarian regimes). For the foreseeable future, the path to full freedom of conscience for Muslims is emigration. The West should give them that chance, even if it involves some risk to ourselves.

And that is why I don’t believe Caplan’s confession that he’s a “coward.” He surely knows there are risks, risks to the freedom of speech which few take more advantage of than he does, in letting in tens or hundreds of millions of immigrants, but he still wants to do it. He’s got a comfortable and secure life, but he’s willing to jeopardize that for the sake of a reform that he knows would be a great leap forward for the liberty and flourishing of mankind as a whole. I call that courage. Meanwhile, the nativist cowards are in a panic to build the walls higher.

Open Borders editorial note: As described on our general blog and comments policies page: “The moral and intellectual responsibility for each blog post also lies with the individual author. Other bloggers are not responsible for the views expressed by any author in any individual blog post, and the views of bloggers expressed in individual blog posts should not be construed as views of the site per se.”

UPDATE: In addition to the comments here, you might also be interested in some discussion of this blog post in the comments on an Open Borders Action Group post about the blog post.

Is there a right to migrate to outer space?

February 3, 2015 Michelangelo Landgrave 1 Comment

During the height of the cold war a common fear among the west and Soviet blocs about the other side placing nuclear weapons in outer space. This was why Sputnik mattered so much – Americans weren’t angry that Soviets had proven their intellectual superiority. Americans were scared that the Soviets might use their artificial satellites to attack them.

The immediate reaction to Sputnik was sparking the space race, an unofficial competition between the Soviet and western blocs to show their mastery over navigation in outer space. Publicly the space race culminated with the American moon landing in 1969. The initial fear about nuclear weapons in space however was dealt a few years prior in 1967 with the passage of the Outer Space Treaty between the world powers.

The Outer Space Treaty today forms the base of international law regarding space and the celestial bodies. It not only barred the installation of weapons or military bases in space, but also set up the parameters regarding property rights in space. Of interest to us, it effectively recognized the right to migrate to outer space.

Article 1 of the treaty reads that:

Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

A plain reading of the treaty’s text appeals to the notion that anyone may migrate to outer space, so long as they do so peacefully. There are a few other catches, such as the need for non-governmental entities to follow the laws of their respective earth-bound government.

Article 6 reads:

The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.

Outer space does not have open borders as such. In order to initially arrive in outer space one must follow the rules of a state and continue to follow the rules of said state to remain in space. This is similar to existing maritime law, where a ship’s flag designates under which rules it sails. Despite these limitations outer space does enjoy a lite version of open borders.

Hopeful space migrants must follow the rules of a state, but it does not matter which state’s rules are followed. Spaceships marked with a Mexican or Madagascar flag have as much right to explore space as ships marked with an EU or USA flag. I suspect that future space explorers will make frequent use of flags of convenience in order to gain access into space.

Am I suggesting that the open borders movement shift its focus to getting people to migrate to outer space? Not at all. Outer space has countless artificial satellites but no permanent colonies at present. For the foreseeable future this will remain the case. Even when a serious effort is made to colonize outer space I would not recommend migration there to the greater number of mankind as the journey itself would be expensive and have little reward.

Some significant catalyst must occur before it becomes efficient for large numbers of humans to settle space. Migration to the new world occurred when large economic opportunities awaited at the other side and/or when domestic forces pushed a population toward migration. The same general forces will be at play in deciding when space is colonized. Perhaps early colonization will be lead by Patri Friedman’s great-grandson in an attempt to promote space-steading. Who can say?

All the same there is some comfort in knowing that when these catalysts occur mankind will have the right to migrate to outer space. They will still have to find a means to do so, but at minimum they will not be pulled over at a border check point outside Mars and present their visas.

In the present the right to migrate to outer space presents us with a rhetorical weapon. If as I argue there is a right to migrate to outer space, why is there not a right to migrate to the new world? Outer space is described as the common heritage of mankind, but does this definition not also apply to the new world? Christopher Columbus first set sail in 1492, a little over five hundred years ago. This is a small amount of time in historical terms. When first discovered the new lands had a negligible existing population and today most of its inhabitants are descended from European, African, and Asian migrants. There is no meaningful ‘American’ race.

A Spaniard had no lesser right than an Englishman to settle the new world back then. Under what justification then do modern American countries erect barriers to entry? Did the new world cease to be a common heritage of mankind? If so, when and under what conditions? Under those conditions would it be proper for future Lunians, the descendants of human colonizers on the Moon, to set a quota on the number of migrants from Earth?

Further Reading

Will technology make borders obsolete? by Chris Hendrix

Argentina and Open Borders by John Lee

Full text of the Outer Space Treaty via the US Department of State.

Full text of the Moon Treaty via Wikisource.

The Moon Treaty was a proposed follow-up agreement to the above mentioned Outer Space Treaty. The Moon Treaty would have handed governmental control over the Moon, outer space, and celestial bodies to the United Nations. The Moon Treaty is widely considered defunct as it failed to acquire the agreement of those nations actually capable of space exploration.

A rose by any other name: open borders, freedom of movement, and the right to migrate

January 16, 2015 John Lee 10 Comments

In our welcome blog post, we state:

This website is dedicated to making the case for open borders. The term “open borders” is used to describe a world where there is a strong presumption in favor of allowing people to migrate and where this presumption can be overridden or curtailed only under exceptional circumstances.

Many of our leading influencers and those associated with the open borders movement in some fashion spurn the label “open borders”, however. A good example is economist Michael Clemens. Clemens’s chief contributions to open borders are his work summarising the economic literature suggesting free migration would double world GDP and his analysis of the place premium showing the vast wage discrimination effects of the borders status quo. Clemens’s “double world GDP” is literally our website’s motto, yet in an interview with economist Russ Roberts, he states:

People often ask me if I am in favor of open borders. And I take an agnostic approach to that question. That’s kind of a strange term but by it I mean that I think the question is ill-posed. I don’t understand what people are asking when they ask it.

Do they mean anyone from everyone in the world should be able to freely move to every other spot on the world? Well, I don’t have that right right now. I don’t know of anybody who has ever had that right, actually. I can’t walk into your house. I can’t walk into a military base. I can’t go sit on the street–police would remove me after a while. My movements are tightly regulated. Property markets are regulating where I can pitch a tent and live.

If open borders means absolutely free movements then we certainly don’t have that in this country. If open borders means anybody can come get immediate access to any public service no matter whether or not they’ve paid into the system, that’s not something that I enjoy either. I don’t get to take Social Security money out unless I put money in. That’s also true for immigrants, by the way–you can’t get any money out of Social Security until you have paid into it for at least 40 quarters, that is a minimum of a decade of work or more. If open borders means absolutely free movement of people without any sort of tracking of who they are or any sort of concern for free riding in public services or any concern for trespassing on private property, then, no.

Open borders doesn’t exist in any space that I’ve ever seen. I don’t really want it to exist. Before we talk about open borders, I need to know what that means. Usually people mean something like a great relaxation to the policy barriers that people face right now.

Clemens quite clearly wants a “great relaxation” of barriers to human movement, which is how he ultimately winds up defining what people mean by “open borders”, yet he spends almost hundreds of words denouncing the label.

Take too philosopher Kieran Oberman, who supports the concept of a human right to migrate:

Commitment to these already recognized human rights thus requires commitment to the further human right to immigrate, for without this further right the underlying interests are not sufficiently protected.

Does this mean immigration restrictions are always unjust? On the view of human rights adopted here, human rights are not absolute. Restrictions might be justified in extreme circumstances in which immigration threatens severe social costs that cannot otherwise be prevented. Outside these circumstances, however, immigration restrictions are unjust. The idea of a human right to immigrate is not then a demand for open borders.

Rather it is a demand that basic liberties (to move, associate, speak, worship, work and marry) be awarded the same level of protection when people seek to exercise them across borders as when people seek to exercise them within borders. Immigration restrictions deserve no special exemption from the purview of human freedom rights.

Oberman too rejects the label of “open borders”, but he clearly believes that there is a human right to cross international borders that can only be restricted in the most extreme of circumstances. In other words, he accepts the presumptive right to migrate which we at Open Borders: The Case consider the clarion call of open borders, but rejects open borders!

On the flipside, consider philosopher Phillip Cole, who endorses a set of views virtually identical to Oberman’s in his defence of open borders:

…the right to cross borders is embodied in international law, but only in one direction. Everyone has the right to leave any state including their own. This is a right that can only be over-ridden by states in extreme circumstances, some kind of public emergency which threatens the life of the nation. What we have is an asymmetry between immigration and emigration, where states have to meet highly stringent tests to justify any degree of control over emigration, but aren’t required to justify their control over immigration at all.

In effect all I’m proposing is that immigration should be brought under the same international legal framework as emigration. Immigration controls would become the exception rather than the rule, and would need to meet stringent tests in terms of evidence of national catastrophe that threatens the life of the nation, and so would be subject to international standards of fairness and legality. This is far from a picture of borderless, lawless anarchy.

Cole describes his argument as making the case for open borders from the basic principles of human rights — just as Oberman does! The two endorse the same logic, and yet one embraces the label of open borders, and the other rejects it.

Rather than affirm or reject any one of these views (partial as I am to Cole’s views, I would also endorse almost everything I have seen from Clemens and Oberman when it comes to immigration), I would say this points to the nascent nature of the open borders movement. Although suspicion and hostility to the stranger in our land has almost always been a feature of human nature, it is not until recently that anyone has felt compelled to defend the right to migrate; strong outbursts of nationalism in the late 19th century compelled civil rights activists such as Frederick Douglass to speak out for open borders. But even in that climate, German legislators took it for granted that borders were to be crossed at will in peace (their only debate was over whether governments could arbitrarily deport migrants), and Argentina had no problem entrenching the rights of immigrants into its constitution.

The development of borders that are closed by default — the closed borders regime, I like to call it — is a historically recent feature. Because closed borders are so young, the movement to overturn them is even younger. It should not be terribly surprising then that different opponents of the borders status quo have different ways of describing their views, even if all have the same end in mind.

Beyond that, there are pragmatic reasons why we might want to avoid the label of open borders. A good one, exemplified in Clemens’s wariness of “open borders”, is the usage of this term by closed borders regime advocates as an instance of what blogger Scott Alexander calls the Worst Argument in the World:

I declare the Worst Argument In The World to be this: “If we can apply an emotionally charged word to something, we must judge it exactly the same as a typical instance of that emotionally charged word.”

Immigration restrictionists frequently tar moderate immigration liberalisations with the label of “open borders” — never mind that giving a few million people a reprieve from deportation is nowhere close to literally tearing down border checkpoints or striking thousands of immigration laws off the statute books. The reason they do this, as Clemens alludes to, is that many people, intentionally or otherwise, conflate free peaceful movement across borders with something far more extreme or obviously undesirable such as:

the abolition of the nation-state
the abolition of national defence
free rein for criminals or infectious diseases to travel without inspection
abolition of any individual right to exclude others from one’s private property as one sees fit

“Open borders” is meant to be pejorative; it is meant to be a dogwhistle, striking an emotional chord with people who consider it an emotional article of faith that sovereignty can never co-exist with open borders (never mind that nation-states existed for centuries after the Treaty of Westphalia without closing their borders). If restrictionists get away with taunting moderates for supporting slightly-less restrictive policies because they amount to “open borders”, imagine the opprobrium and the closed minds we may encounter if we publicly proclaim our support for open borders! So I perfectly understand Clemens’s eagerness to demur here, and state he supports freer human mobility across international borders in lieu of saying he supports open borders.

But what happens if we try Oberman’s preferred formulation? What if we just say we are for a right to migrate? Does this clear up the confusion, since one cannot accuse us directly of wanting to undermine the peace and security of modern societies? Does this preemptively address the unfounded concern that we are out to abolish the right of private property owners to exclude foreigners from their own living rooms and dining tables? It would seem not; on more than one occasion (here and here), I’ve encountered people who allege the right to migrate infringes individuals’ right to keep strangers out of their own homes.

To be honest, it does not bother me much either way whether we call it open borders, the right to migrate, human mobility, freedom of movement, or just the right to be left alone in peace. Whatever you call it, like all those I have cited, I believe in a world where any person who wants to go somewhere for pleasure, family, work, or study, and is willing to pay the fare it will take to get him or her there, will be able to do so in peace. And I believe a major precondition for getting there is to abolish most of the immigration laws in place today.

As I wrote during the Ebola crisis of 2014, immigration laws aimed at quarantining and treating infectious diseases do not bother me. I am no more distressed about immigration laws that prevent terrorists from entering than I am about trade controls that prevent international trade in weapons of mass destruction. But beyond these, I believe most immigration laws are spurious, unnecessary, and aimed purely at excluding people who have done nothing wrong except being born on the wrong side of an arbitrary line.

How do we operationalise open borders? How do we enact the right to migrate into law, and guarantee freedom of movement to all people? The nation-state is not going away any time soon, and so the answer lies in getting our nation-states to change their laws. I am on-board with the liberal premise that the ultimate purpose of government is to protect individuals’ liberty to go about their own lives in peace — and so as sympathetic as I might be to the utopic vision of having no borders at all, I believe we should at least hold our own governments accountable for protecting the liberties of all who seek protection and peace within our borders.

Clemens notes that he tries to refocus the discussion not on the semantics of “open borders”, but rather on what operationally we seek to achieve. I think we in the movement, wonks like Clemens aside, often shy away from articulating a specific policy we would like to see. Part of this is because the legal and policy analysis necessary to enact open borders has rarely been done, and would vary significantly from country to country. Our goal is simply to place freedom of movement on the political agenda in the first place — to force citizens to reckon with the malicious wrongdoings of our own governments in persecuting people who have done nothing wrong.

But a further part of this is also because, just as our goal has many labels, it also has many possible routes — we’ve discussed these paths to open borders plenty in the past and intend to keep doing so. And I do think one appeal of the “freedom of movement” or “right to migrate” labels is that they are somewhat more agnostic about which of the options we have are the best or the appropriate route(s) to take.

Open borders tends to imply, just as it says on the box, borders that are open. This would suggest borders with no checkpoints (perhaps just a sign such as “You are now entering Germany”), or borders with checkpoints where very few are stopped — i.e., guards are posted, but they do not stop anyone unless the person appears suspicious, similar to how guards are often posted in airports or train stations, but they do not stop anyone unless that person fits a suspicious profile.

You are now entering Germany; the Germany-Austria border. Original photographer unknown; image downloaded from The Lobby.

Meanwhile, freedom of movement and the right to migrate carry fewer explicit connotations about how our societies would in practice respect and protect these liberties. Of course, we could always abolish or minimise border controls, as literal open borders would suggest. But we could also simply offer visas to anyone who applies for them (subject to standard exclusions for people bearing diseases, weapons, or criminal intent of course). We could maintain checkpoints and inspect every traveller while still waving 98% of them through, as was actually done on the famous US checkpoint of Ellis Island in the era of open borders. Or we could even technically maintain more controls on immigration, while blatantly waiving most of these controls, as Argentina does.

But this potential semantic-implementation distinction does not bother me much either. After all, these days virtually every domestic traveller getting on an aeroplane at a regular port of travel is subject to a screening and document inspection of some kind. Beyond the most absolute of pedants, and a handful of laudable liberty-of-travel advocates, I think most of us would agree that this does not mean we lack internal open borders. The internal borders of our countries are porous to virtually all of us except those on government watchlists; our borders are internally open.

At the end of it all, I am less concerned about what kinds of checkpoints we have, or what screenings we may subject travellers to (as worthy a set of issues these might be) than I am about ensuring as many people travelling in peace are able to do so free from government agents standing in their way, preventing them from moving in peace with all the coercive force of the state. To my mind, it is a waste of taxpayer money, a danger to peace and safety, and worst of all abusive and discriminatory for law enforcement officials to be treating people seeking to visit friends and family or work for a fair wage as though they are dangerous criminals. It does nobody any good for our governments to consider peaceful, orderly movement a threat to the fundamental order of society.

It is this dangerous and unjust treatment of migration as a crime that I want to end. And I do not much care what we call our goal, or how we reach it. What I want is a world where my government, and every government, dispenses justice to every person seeking it from them. Where every government respects the right of individuals to go about their own lives and arrange their own affairs in peace, no matter their nationality or circumstance of birth.

A world with open borders; a world with freedom of movement; a world with the right to migrate. It matters not what we call it, but to all of us, it should matter very much that we achieve it. For as two German legislators rising in favour of abolishing deportation once said:

Liebknecht: A right that does not exist for all is no right.

Lasker: …it is a barbarity to make a distinction between foreigners and the indigenous in the right to hospitable residence. Not only every German, but every human being has the right to not be chased away like a dog.

The image featured at the top of this post is of graffiti in the city of Cardiff, the United Kingdom. Photo by David Mordey; original graffiti artist unknown.

Frederick Douglass: Migration is, and always has been, a fundamental human right

December 3, 2014 John Lee 3 Comments

It is almost impossible to make it through an explanation of the right to migrate without a listener interrupting: “But you can’t let everyone come! You just can’t!” There’s often a litany of plausible-sounding reasons.

Now, I suspect that these plausible-sounding reasons are actually much less defensible and plausible than you might think. But before we get into a deep discussion of the evidence here, the interrupting interlocutor often concludes: “What you say sounds nice in theory, but will destroy us. Your fancy moral theories will sink our ship of state. You are stupidly blinding yourself to the consequences of recognising a right to migrate.”

Yet when I probe into why our objector believes this, I often find he has no evidence for his belief that freedom of migration will destroy his country or the world. All he has to go on is the insistence that it’s a theoretical possibility that recognising the right to migrate will be disastrous. Yes, that’s a possibility — one we’ve thought about a lot.

But you could make such objections against just about every right. We restrict freedom of speech for much less than catastrophic disaster: most countries’ laws ban libel and slander, and many go even farther than that. This doesn’t mean the right to freedom of speech must be exterminated and never recognised — it just means that the right to free speech must be balanced against others’ rights. Such is the case with the right to migrate.

Peculiarly, people often seem allergic to the idea that foreigners have rights at all (never mind that humanity has recognised this ever since the first laws of war were drawn up), let alone the right to migrate. One of the most common objections I hear is that while such a right was feasible to recognise in earlier times, such a right is infeasible in the modern world.
(Image source: Christian Science Monitor)
But these objections are not new. They are so old, in fact, that they were anticipated almost 150 years ago. Here is Frederick Douglass, speaking in 1869 against the movement to ban Chinese immigration:

I have said that the Chinese will come, and have given some reasons why we may expect them in very large numbers in no very distant future. Do you ask, if I favor such immigration, I answer I would. Would you have them naturalized, and have them invested with all the rights of American citizenship? I would. Would you allow them to vote? I would. Would you allow them to hold office? I would.

But are there not reasons against all this? Is there not such a law or principle as that of self-preservation? Does not every race owe something to itself? Should it not attend to the dictates of common sense? Should not a superior race protect itself from contact with inferior ones? Are not the white people the owners of this continent? Have they not the right to say, what kind of people shall be allowed to come here and settle? Is there not such a thing as being more generous than wise? In the effort to promote civilization may we not corrupt and destroy what we have? Is it best to take on board more passengers than the ship will carry?

I submit that this question of Chinese immigration should be settled upon higher principles than those of a cold and selfish expediency.

There are such things in the world as human rights. They rest upon no conventional foundation, but are external, universal, and indestructible. Among these, is the right of locomotion; the right of migration; the right which belongs to no particular race, but belongs alike to all and to all alike. It is the right you assert by staying here, and your fathers asserted by coming here. It is this great right that I assert for the Chinese and Japanese, and for all other varieties of men equally with yourselves, now and forever. I know of no rights of race superior to the rights of humanity, and when there is a supposed conflict between human and national rights, it is safe to go to the side of humanity. I have great respect for the blue eyed and light haired races of America. They are a mighty people. In any struggle for the good things of this world they need have no fear. They have no need to doubt that they will get their full share.

But I reject the arrogant and scornful theory by which they would limit migratory rights, or any other essential human rights to themselves, and which would make them the owners of this great continent to the exclusion of all other races of men.

I want a home here not only for the negro, the mulatto and the Latin races; but I want the Asiatic to find a home here in the United States, and feel at home here, both for his sake and for ours. Right wrongs no man. If respect is had to majorities, the fact that only one fifth of the population of the globe is white, the other four fifths are colored, ought to have some weight and influence in disposing of this and similar questions. It would be a sad reflection upon the laws of nature and upon the idea of justice, to say nothing of a common Creator, if four fifths of mankind were deprived of the rights of migration to make room for the one fifth. If the white race may exclude all other races from this continent, it may rightfully do the same in respect to all other lands, islands, capes and continents, and thus have all the world to itself.

People often say that the words of the Statue of Liberty no longer apply today, because things are just fundamentally different. No longer should we declare:

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!

Whether stated or unstated, the suggestion is that the people of the 19th century who so eagerly embraced the right to migrate would, today, agree we ought to shut the door and wall out the “wretched refuse” of the world. But reading Douglass’s words, I find this difficult if not impossible to believe.

The same concerns people have about migration today were the ones raised to Douglass in the 1860s. Yet Douglass did not contemplate any reduction or circumscription of the right to migrate. He recognised the theoretical problems that the spectre of migration raises — and he rejected arbitrary prohibitions on human movement as the only solution to these problems.

He did not say they are categorically unfounded, nor did he say they should not be managed. He simply insisted that these theoretical problems are not a good enough reason in of themselves to restrict “essential human rights” — such as the right to migrate. It behooves us to solve these problems with solutions that least-infringe upon fundamental human rights.

People say that times change and that what was once a right might not be valid today. But how then can they answer Douglass’s insistence that the right to migrate is universal and indestructible? How can they explain that restricting migration isn’t really so wrong, when in Douglass’s time it was clear that this constituted an “essential human right”, one that he asserted for all other varieties of men equally with yourselves, now and forever?

I say that Douglass’s words ring as true today as they did well over a century ago. Migration is a fundamental human right. Like all rights, there may come a time when it must be restricted. But restrictions have to balance one set of rights against another — not to categorically declare that a right simply does not exist, and that we have carte blanche to utterly disregard it. As did Douglass, I assert today the universal and indestructible right to migrate equally for all human beings — now, and forever.

Source for featured image: Wikimedia Commons, original photographer unknown.

Open Borders Editorial Note: See also Open Borders guest blogger Ilya Somin’s blog post Frederick Douglass on immigration at the Volokh Conspiracy.

Open Borders: The Case