Is There a Right to Immigrate?

1. The Immigration Question

Every year, close to one million individuals from foreign nations migrate to the United States legally. But many more are turned away.

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Individuals seeking to enter without the permission of the U.S. government are regularly barred at the border, and those discovered in the territory without authorization are forcibly removed. The government expels over one million people from the country each year. Hundreds of thousands continue to try to smuggle themselves in, occasionally dying in the attempt. On the face of it, this raises ethical questions. Is it right to forcibly prevent would-be immigrants from living in the United States? Those excluded seem, on the face of it, to suffer a serious harm. Why are we justified in imposing this harm?

       Some reason that, just as a private club may exercise its discretion as to whom to admit or exclude, so a nation-state has the right to choose whom to admit or exclude. Some believe that we must exclude most would-be immigrants in order to maintain the integrity of our national culture. Others argue that immigrants cause economic hardship for existing citizens—that they take jobs from American workers, depress wages, and place an undue burden on social services provided by the state. Some go so far as to warn that unchecked immigration would bring on environmental, economic, and social catastrophes that would reduce the United States to the status of a Third World country.

       Few would question the state’s right to exclude at least some potential migrants. For example, the state may deny entry to international terrorists or fugitives from the law. The interesting question concerns the vast majority of other potential immigrants—ordinary people who are simply seeking a new home and a better life. Does the state have the right to exclude these ordinary people?

       In the following, I argue that the answer to this question is no. I shall assume that we are considering ordinary, noncriminal migrants who wish to leave their country of origin for morally innocent reasons, whether to escape persecution or economic hardship, or simply to join a society they would prefer to live in. Though I shall conduct the discussion in terms of the situation of the United States, most of my arguments apply equally well to other countries.

       My strategy is to argue, first, that immigration restriction is at least a prima facie violation of the rights of potential immigrants. This imposes a burden on advocates of restriction to cite some special conditions that either neutralize or outweigh the relevant prima facie right. I then examine the most popular justifications offered for restricting immigration, finding that none of them offers a credible rationale for claiming either that such restriction does not violate rights or that the rights violation is justified. This leaves immigration restrictions ultimately unjustified.

       A word about theoretical assumptions. In my view, most general theories or theoretical approaches in political philosophy—liberal egalitarianism, contractarianism, utilitarianism, and so on—are too controversial to form a secure basis for reasoning. It is not known which, if any, of those theories are correct. I have therefore sought to minimize the reliance on such theories. This does not mean that I assume that all such broad theories are false; I merely refrain from resting my arguments on them. Thus, I do not assume utilitarianism, contractarianism, libertarian rights theory, liberal egalitarianism, nor any general account of harm or rights. Nor do I assume the negation of any of those theories. Instead, I aim to rest conclusions on widely-shared ethical intuitions about relatively specific cases. The method is to describe a case in which nearly everyone will share a particular, clear intuitive evaluation of some action, and then to draw a parallel from the case described to some controversial case of interest. This methodology follows a well-established tradition in applied ethics; I propose that the approach be applied to the issue of immigration. The approach can, of course, be subjected to criticism, particularly for the weight placed on common ethical intuitions, but this is not the place for a general discussion of the value of ethical intuition. In any event, the intuitive premises I shall rely on are, I hope, much less controversial than the broad philosophical theories of the sort mentioned above, and much less initially controversial than the immigration issue itself... 

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This article originally appeared in Social Theory and Practice, Vol. 36, No. 3 (2010), pp.429-61. Reprinted by permission of Social Theory and Practice.