An Objection to Allocation of Citizenship By Accident of Birth

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The public conversation about immigration reform in the U.S. relies on several flawed policy assumptions, for instance, that criminalization of employment and imprisonment for immigration violations are necessary elements of a system of restrictions on entry for noncitizens. I believe that a workable system of immigration controls could be created without those two policies.

These and other consensus policies are predicated on the idea that restrictions on entry and residence are rightfully imposed on noncitizens by sovereign states. That is, that a government has the right--and arguably the obligation--to regulate the entry of noncitizens into otherwise public spaces within its territory.

Contributors to the libertarian-leaning site Open Borders have been deconstructing the assumption that border restrictions are necessary or morally permissible. The site is a great resource, and I agree with many of the arguments made there.

But I want to make a stronger argument: that defining membership in a sovereign polity by accident of birth is not consistent with basic principles of justice. This means that, not only are closed border policies unjust, but the current international citizenship regime is unjust. There can be no "just and humane immigration reform" within this fundamentally unjust system.

Restrictions on travel and immigration are derived from legal distinctions between citizens and noncitizens. Unlike noncitizens, citizens typically have free access to the territory of the state and formal access to political participation in the state.

In practice, the distinction between citizen and noncitizen is not always clear. For instance, an educated, European, professional lawful permanent resident of the U.S. is likely to have more rights and privileges than a nonwhite U.S. citizen imprisoned for a felony conviction. In that scenario, the noncitizen could be materially secure, able to travel freely around the world, able to eventually obtain U.S. citizenship and the ability to vote, and free from racial discrimination. The citizen felon could be subject to long-term imprisonment, permanent disenfranchisement, racial discrimination, physical harm without recourse, and destitution. In general, though, governments create and police important distinctions between citizens and noncitizens that provide citizens with certain rights and benefits vis-a-vis noncitizens.

My objective is to outline a rights-based critique of the legitimacy of the processes by which sovereign states define membership criteria. My crude attempt so far, based primarily on my reading of John Rawls and Ayelet Shachar, is this:

  1. Legal regimes must be rooted in and reinforce principles of justice.

  2. It is unjust for people to be rewarded or punished for things not within their control.

  3. Consistent with Rawls's second principle of justice, legal systems should not formally differentiate among individuals with respect to factors over which they have no control in ways that limit equality of opportunity. (Note: I generally accept Rawls's principles outlined in A Theory of Justice while rejecting his limitation of the application of the principles to national societies.)

  4. National legal regimes, individually and collectively, distribute citizenship based on a person's place or family of birth in almost all instances.

  5. Each person has no control over his or her place or family of birth.

  6. A person's citizenship, in large part, determines a person's life opportunities. For most people, opportunities and resources are closely connected to citizenship, and are plentiful for some and scarce for others.

  7. Hence, national legal systems distribute citizenship, and the attending resources and opportunities, to individuals based on factors not within their control. This violates the principle that a just legal regime must formally treat people equally with respect to factors over which they have no control. Distributing citizenship by accident of birth is unjust.

One objection to this argument could be that mutable citizenship, and the resulting right to enter and remain in the sovereign territory of a state, would expose existing citizens to harm from enemies of the state. I won't address this objection in detail, but it is vulnerable on the ground that citizens of a state can and often do harm other citizens (for instance, perpetrators of many mass killings in the U.S. have been citizens, and many more citizens have been killed in homicides committed by other citizens than have been killed in recent wars abroad). In addition, if reforming the citizenship regime led to increased equality and justice, overall levels of intercommunal violence could--and I argue would--significantly decrease.

Another argument against a more open citizenship regime is that communities should have the right to impose restrictions on membership in order to maintain cultural and linguistic independence from other communities. However, it assumes that existing cultural characteristics are fixed and that they are more valuable than whatever cultural characteristics might emerge from a reformed citizenship regime. Also, many communities are not aligned with the territorial boundaries of states. In fact, many borders were drawn by outsiders in ways that fragmented existing communities. There are also examples of states that have relaxed their membership criteria and maintained cultural independence; for example, the original colonies that became the U.S. and the states of the European Union.

An objection could be made that the principles I have outlined also lead to the conclusion that differential distribution of wealth (and hence, opportunities) based on accident of birth is unjust. I do not disagree with that conclusion, but it does not necessarily undermine the argument I make here.

Another objection could be that formal equality of opportunity in the current international citizenship regime already exists because citizenship is mutable; that is, it can be changed through processes open to anyone willing to undergo the necessary difficulties (wait time, expense, dislocation, etc.). This is a common misconception in the U.S. and is false, for reasons I won't get into here.

The current citizenship regime was constructed over time and could be reformed over time. The processes for allocating citizenship in and among national legal systems are not immutable, nor is the current international system of sovereign states.

There would be costs to disrupting the status quo; however, these could be mitigated. If undertaken with care, the benefits to reforming national citizenship regimes would far outweigh the costs. More importantly, this is a matter of fundamental rights and should not be deferred because of potential transitional costs to those who are advantaged by the current system.

My argument here is that, as long as there are significant discrepancies in wealth and power among states which accrue to the benefit of their citizens, allocation of citizenship by accident of birth is inconsistent with basic principles of justice. It is a policy of "separate but equal" writ large, and is not supportable under any coherent rights-based legal framework.

This is relevant to the immigration reform debate in the U.S. because of the implicit premise that it is fair to distribute citizenship by accident of birth. Challenging that assumption drastically changes the terms of the debate in favor of liberalizing the immigration system.

(This is an initial and partial attempt to articulate rights-based objections to the current citizenship and immigration regime. I've probably replicated arguments made elsewhere. I hope to further address some of the issues touched upon here. Please share any responses or suggestions in comments.)

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This page contains a single entry by David Bennion published on July 13, 2013 5:19 PM.

Why the Sequester is Good News for Immigrant Families was the previous entry in this blog.

Deporter-In-Chief Will Keep Deporting. So What Happens Next? is the next entry in this blog.

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