Jurisdiction and Exclusion

Given agreement on most of the important questions, this commentary focuses on a few questions that Sarah Song’s view on immigration, jurisdiction, and exclusion in “Why Does the State Have the Right to Control Immigration?” will have to deal with. These questions are not designed to show that the view is wrong; instead, they show that there are some points at which the moral story about immigration will have to be supplemented. The chapter begins with the things about which Song is right. It then gives two arguments with which views like hers will have to deal. It then gives some brief notes about how it is that she would have to deal with them.

Why Does the State Have the Right to Control Immigration?

Public debate about immigration proceeds on the assumption that each country has the right to control its own borders. But what, if anything, justifies the modern state’s power over borders? This chapter provides an answer in three parts. First, it examines the earliest immigration law cases in U.S. history and finds that the leading theorist they rely upon falls short of providing adequate normative justification of the state’s right to control immigration. In the second part, it turns to contemporary political theory and philosophy, critically assessing three leading arguments for the state’s right to control immigration: (1) national identity, (2) freedom of association, and (3) ownership/property. The third and final section offers an alternative argument based on the requirements of democracy.

Citizens and Persons

This commentary questions whether the utopian model of the postal service adequately captures current possibilities for ending a growing system of domination built around the criminalization and illegalization of migrants. Given that states are now committed to enlarging their current systems of domination over migrants, I offer an alternative to the role of the utopian ideal of the universal postal service that Resnik advances. I argue that more effective models would be based not on sovereign states but on such universal arrangements found in emerging new kinds of political units such as the European Union. Such a transnational approach, it seems to me, is both universal in scope and democratic in form.

Bordering by Law

Law is filled with segmented narratives. The literature mapping the illegalization of the migration of peoples does not reference that many borders have become readily traversable, if not invisible, through the internationalization of mail services by cooperative government efforts. This chapter links these domains not to equate the migration of persons with the movement of objects but rather to clarify how reliant on border crossings we are. The argument is that depending on borders as justifications for legal rules deflects attention from two major shifts during the last two centuries: one imagining the globe as a “single postal territory” and the other turning migration into a crime. In pursuit of both, governments expanded their capacities as providers of services—from forwarding mail to patrolling borders. The aim is to probe whether states’ coordination to facilitate movements of persons seeking to cross boundaries could become a taken-for-granted government service, akin to state-subsidized interjurisdictional, cooperative postal systems.

Commentary on “Bordering by Law” by Judith Resnik

Judith Resnik’s “Bordering by Law” has three major themes. First, the United States is strongly and increasingly criminalizing immigration and stigmatizing immigrants, to the detriment of everyone. Second, the United States is engaging in more and more harmful surveillance of migrants as well as citizens. Third, the history of the Universal Postal Union provides a model for how to overcome nationalist solipsism, as well as a warning that the virtues of public governance are threatened by privatized services. This commentary focuses mostly on the first theme, disagreeing to some extent with Resnik’s characterization of the trajectory of policies surrounding immigration and immigrants, and aiming to substitute a more complicated and multifaceted characterization. Her final theme provokes several larger questions, which are explored but not answered. The overall message is that we need more political analysis to fully understand the United States’ ambivalent treatment of migration and migrants.

Democracy, Migration, and International Institutions

This chapter defends two main theses. First, it argues that there is a source of legitimate authority in migration decisions, but that it lies primarily in international society. International society is a society of states that represent their citizens reasonably well and fairly negotiate with one another concerning the terms of migration. Representative states have a share in that legitimate authority, but they must share decision making over the management of migration with other states in international society. Second, it argues that societies do have legitimate interests in shaping and perhaps sometimes constraining the process of migration. Societies may shape and constrain migration in good faith negotiations with other societies. The chapter explains and argue for these theses within a cosmopolitan framework, which is taken for granted.

Regulatory Pluralism and the Interests of Migrants

Among the important and challenging observations Thomas Christiano makes in “Democracy, Migration and International Institutions” is his claim that the interests and judgments of potential and actual migrants must be taken into account in the regulation of migration. After briefly justifying this premise, this chapter takes off from this cosmopolitan objective to explore whether and how different institutional arrangements available to regulate the movement of people might be capable of incorporating migrants’ points of view. Its primary objective is to explore whether it makes sense to equate the international with the cosmopolitan in this setting, or whether the institutional dynamics of the nation-state, at least in its democratic form, will better serve the individual migrant’s objectives. If we set our goal as designing a system that reasonably takes account of potential and actual migrants’ interests, should regulatory energy and advocacy efforts be directed toward multilateralism, bilateralism, or old-fashioned domestic regulation?

Three Mistakes in Open Borders Debates

What might justify laws that restrict the free movement of people across international borders? This chapter corrects three common mistakes made by those who try to answer this question. First, debates about open borders often conflate three quite distinct questions—about whether border restrictions are permissible, when they are permissible, and who gets to decide. Second, the early American immigration jurisprudence often cited by legal scholars was not about open borders arguments as many have supposed. Third, it will be very difficult to make a persuasive argument in favor of border restrictions without simultaneously tackling the question of what principles of equality require for those who are admitted into a state’s territory. These twin questions are typically segregated in philosophical work on immigration, but they are tied together in ways that are too often overlooked.