Is the Exclusionary Nation State Justified?

Who gets to be part of a political community?  More generally how should membership in a political community be determined?  I would like to start by looking at this debate in theoretical terms and then, in a follow up post, consider how this debate is taking place today.  Joseph Carens (1987) is an advocate for open borders, based on the idea that liberal ideas are universal in scope and limit government authority (of any territorial state) to keep people from being able to move around the earth as they choose. Michael Walzer (1983) develops a communitarian critique of liberalism, which insists on the primacy of community over individual rights and hence the right of communities to determine membership policy in whatever way they like.  These arguments are rehearsed below.  

      

       Walzer, “The Distribution of Membership”

Walzer focuses on a fundamental question of rights.  Not which rights should be accorded to citizens, but who gets to be a citizen in the first place?  Walzer thinks that any political community has the right to determine criteria for membership.  There are several ways in which to think about these criteria.  States can formulate membership criteria as neighborhoods.  This neighborhood conception of membership was aligned with the laissez faire perspectives of the 19^th century.  According to this conception, the state had no business in maintaining borders.  The U.S. in the late 19^th century had no immigration policy with the exception of the Chinese Exclusion Act.  The initial border “wall” – a barbed wire fence stretching along the Texas border in 1910 – was meant to keep limit cows infected with Texas Fever from crossing the border.  The role of government was not to regulate the movement of people, but simply to maintain order over the territory that it governs so that “the natural advantages of markets should be open to all comers” (214).  But Walzer  argues against this view on three grounds:  1) open borders would mean lack of internal cohesion; 2) free movement might interfere with efforts to raise standards of living among existing citizens; and 3) the efficient working of political institutions and the promotion of a moral and intellectual culture would be impeded by open borders. 

Walzer’s key point is that treating the nation state as if it were a neighborhood will not work because it undermines fundamental rights of self-determination.  Even the integration of neighborhoods is problematic.  A good example of this is the racial backlash from the integrated housing movement in Northern cities during the 1960s.  The migration of African Americans from the south to the north remained manageable for whites only insofar as ghettoes functioned to contain blacks and segregate them from the rest of the society.  But as the ghetto disintegrated as a strategy of containment, open conflict erupted and political polarization around racial issues ensued.  And we are still living with that. 

With respect to immigration, I would suggest that a similar story can be told.  For a long time, migrants from Mexico participated in farm labor.  Between 1942 and 1964, there was a guest worker program (called the Bracero program) that recruited Mexicans to work in U.S. agriculture.  As long as Mexicans and other migrants remained contained within agriculture, working at the rural margins of society, immigration was not a significant political issue.  The Immigration Reform Act of 1965 expanded immigration quotas from Asia and Latin America, ending 40 years of immigration restriction dating back to 1924.  Migration flows from Latin America – in particular, from Mexico and Central America – were subsequently shaped by civil war (in Central America) and economic crisis (Mexico) – both of which the United States played a key role in inducing.  These increased migration flows meant that migrants were now shifting from agriculture to sectors of the economy dependent on cheap labor – construction, hospitality, domestic work, fast food, healthcare, beef packing, poultry processing, and so forth. 

Some of these migrants had become citizens as a result of Ronald Reagan’s Immigration Reform and Control Act of 1986.  The act also started a process of border fortification which changed the migration patterns from Mexico.  Previously, migrants were sojourners, working in the United States part of the year, returning to Mexico another part of the year.  After border fortification, they settled permanently in the United States, often in communities that had not experienced major migration in more than a century.  Like African Americans, Latin American migrants were de-contained, generating conflict and political polarization that, once again, we are still living with today.

To return to Walzer, here is another metaphor for how states might formulate membership policies:  they might act as clubs where the members of the club have the exclusive right to set criteria for who and who cannot be a member.  In this instance, individuals might give good reasons for inclusion, but no one on the outside has a right to be included.

The club metaphor may be supplemented by the family metaphor.  States are like families.  Outsider may be admitted because they are relatives of the family – they are from the same ethnic group.  This concept is operative in the family reunification principles of immigration policy (particularly, policy embedded in the 1965 Immigration Reform Act) where family members can sponsor the emigration of their close relatives.  This recognizes the fact that people that emigrate to the US in order to work also have family obligations to fulfill and admissions policy should facilitate the fulfillment of these duties. 

On a larger scale, states have affirmed ties with kindred ethnic groups.  Of course, this speaks to the idea that the relationship between states and nations is uneven.  One might speak of the German nation, for example, that is transnational in scope.  The admission of Germans expelled from Poland and Czechoslovakia after WW2 illustrates the idea of states having obligations to nationals who are not citizens.  This has been a recurring rationale for Russian foreign policy in its near abroad:  protection of the interests of Russian nationals. 

The upshot of all of this is that establishing membership policy is a basic right of peoples.  This is the right of self-determination.  There can no self-determination without membership policy.  Hence some form of membership policy is just.  Of course, membership entails equal status rather than some form of civic inferiority.  Nor can a majority group arbitrarily expand the scope of its rule.   This is clearly beyond the scope of self-determination. But it is not, of course, beyond the scope of what dominant ethnic or national groups have done historically.                

     

           The Case for Open Borders

The case for open border begins by evoking the armed border.  People who enter the US without authorization do so at great risk, with armed guards pointing guns at them.  What gives anyone the right to point guns at them?  Well, we would say, there is a right to self-determination, and this right is a part of our ancestry.  Here is the point where Carens diverges from the communitarian argument developed by Walzer.  He says that the fact that we live in the US is like feudal birthright.  It is a form of arbitrary privilege, which has no ultimate justification.  This is particularly the case if we start our thinking from the presupposition of the equal moral worth of all individuals.  This view is near and dear to the heart of liberalism because it treats individuals as being prior to the community.  

Carens develops this view by focusing on three different versions of liberal individuality:  a) Nozick’s rendition of Locke’s natural law; b) a globalist view of Rawls’ original position, and c) Bentham’s utilitarian calculus.   Let us review each of these arguments.

•  Michael Nozick.  The justification for closed borders is that we can keep them out because it is our nation.  In essence, this view sees the national territory as a kind of collective property, but this is inconsistent with the state’s commitment to protect individual rights.  Once again, we are confronted with the universal scope of liberalism.  The state is accordingly obliged to protect the rights of citizens and non-citizens equally.  These individuals have the right to enter into voluntary exchanges with one another.  This right should not be encroached upon by closed borders. 

• John Rawls.  Rawls limits his version of the original position to a given people.  By why should we accept this as a starting point?  Globalization has created interdependence.  Humanity rather than the nation state is now the relevant community of fate.  And so the original position has to be situated at the level of humanity.  If that is the case, then behind the veil of ignorance we lose our nationality and we would have to argue for membership policy – as one of many important principles of justice.  What membership policy would we choose if we did not know what nation we belonged to?  And wouldn’t that choice be the just one? 

Our membership in a political community is accidental (a matter, in most cases, of where we happened to be born).  This view undermines discourses of national pride and belonging.  It is all an illusion that must dispensed with in the interests of justice.  Civic identities are concoctions that sit oddly with liberal principles, but which are nonetheless important in order to establish the basis of political rule.  For elites to govern the nation state, after all, they must summon a national people into existence.  We might regard national belonging as part of the dense thicket of stories through which our identities are constructed.  We can point to how deeply rooted our stories of civic identity are – they go back to John Winthrop! – but does this justify them?  From a liberal perspective, the answer can only be no.  It follows from this that civic identity is illiberal, in many cases. 

• Jeremy Bentham.  Bentham’s utilitarian ethic was  the most good for the most people, with each individual choosing his or her own conception of the good.  Who would be included in the utilitarian calculus?  Everyone according to the principle of the moral equality of all human beings.  Why should one restrict this calculus to just the citizens of the US or any other developed country.  If we were to tally costs and benefits, the costs of immigration to citizens would not outweigh the benefits to immigrants.  Carens raises questions about the pleasures and pains that can be factored into a utilitarian calculus.  Some people resent the presence of non-white people, but is racial prejudice a sentiment that should be considered in any utilitarian calculation of the good? 

Walzer diverges from Carens position with respect to who decides issues of justice.  He thinks that questions of distributive justice “should not be addressed not from behind a veil of ignorance, but from the perspective of membership in a political community in which people share a common culture and a common understanding of justice” (219).

But in response to Walzer, it is easy to imagine states with open border policies which can still engage in some form of self-determination.  Just look at individual states in the US.  No state in the U.S. restricts internal migration.  Internal freedom of movement overrides the claims of local communities, so why should freedom of movement across nation states be restricted?  The idea that states are clubs is also misplaced because it ignores the distinction between public and private spheres.  Yes, private clubs can have whatever membership policies they like, although liberal states limit even these.  But in the public sphere principles of universal justice apply.

What Carens’ critique of communitarian represents, he concludes, is the inner logic of liberalism.  This logic is a universalizing logic based on the equal moral worth of all human beings.  Historically, it has extended outward to formerly oppressed categories of groups.  If we accept this inner logic of liberalism, we must accept open borders.

References

Carens, J. (2010, Spring). Aliens and Citizens: The Case of Open Borders. In P. Shumaker, The Political Theory Reader (pp. 216-22). Malden, MA: Wiley Blackwell.

Walzer, M. (2010). "The Distribution of Membership. In P. Schumaker, Political Theory Reader (pp. 213-16). Malden, MA: Wiley-Blackwell.