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January 09, 2008


Steve Smith

The post begins by declaring the assumption that it's physically and morally impossible to expel 12 million illegal immigrants and that this should be axiomatic and thus not to be argued for (although it seems that the post then does go ahead to argue for the proposition, and that the argument should be subject to examination, question, etc.) I have one question, though: how much depends here on the "12 million"? I.e., is it morally reprehensible to expel even a single illegal immigrant (as an argument framed in terms of "rights" might suggest)? So that the implication is that if an alien manages to get here, by whatever means, it is wrong to expel him or her? Or does the utter unacceptability of such proposals arise from the large numbers involved (and perhaps from other associated factors, such as long residency here, etc.)?

Nathan Smith

Well, I would say, of course, that it's morally wrong as a general rule to expel illegal immigrants, but given the sources I've listed as potentially legitimizing law, there might be cases where some justification could be offered. There are, I think, no circumstances in which, say, a Virginian can be expelled from Maryland, and to have the same situation prevail at the global scale seems both desirable and feasible in the long run. To the extent that legitimate goals are served by immigration restrictions I think they could probably all be achieved more effectively, and in some cases at least more justly, by other means. But for now that's pie in the sky. Also, to the extent-- not a very large one, but not negligible either-- that national-security objectives are served by immigration policy, there may at least be a utilitarian case for expelling some illegal immigrants, which carries some weight. Thus, if there is an illegal immigrant who we find has several relatives in Pakistani terrorist organizations, but no evidence that he personally is involved, to expel him might be unjust, but at the same time have a significant chance of saving many American lives. How to deal with trade-offs between justice and utility is a difficult question. I prefer to deal with cases where utility and justice are on the same side.

We can expel a single immigrant without a radical alteration of the nature of our state. Presumably such a person is already in the hands of law enforcement. Our system has a demonstrated capacity to treat an individual detainee humanely. To expel 12 million people would almost surely be impossible without a considerable erosion of the legal protections that we have long lived by. Police would need more authorization to search premises. It might be necessary to require people to obtain and carry with them at all times some kind of documentation. Ordinary legal processes would be unaffordable with such a huge caseload; they would have to become more abbreviated, probably more subject to error. Once you round up 12 million detainees, what do you do with them? Eventually, perhaps, they return to their home countries, but how do you verify what those are? What if their home countries don't want them back (or refuse to collaborate in America's iniquitous actions by receiving them)? And how do we even know what countries they're from? They may not have an incentive to tell us the truth. When people are deprived of freedom to meet their needs, and the satisfaction of their needs must be administered by others, this tends to be done in a highly unsatisfactory manner. At best, years of people's lives would be wasted; very likely, poor care would result in deaths of some prisoners. Hitler's concentration camps were uniquely bad in that (a) the Jews were exploited for their labor, and (b) a program of deliberate extermination was eventually adopted. But there's a reason that the word "concentration camp" in general, not just in the Nazi case, has connotations of moral horror.

I suppose efforts would be made to keep families together to the extent possible. I doubt that the government would do this with complete competence and probably many families would be separated through administrative error, in the shuffles and reshuffles of prisoners. Anyway, if an illegal immigrant couple has a child who is a US citizen, we would have to expel the parents but leave the child. Needless to say, the severing of friendships and community ties would also occur on a huge scale.

Would immigrants accept detainment without resistance? I suspect that very few, proportionally, would resort to violent resistance, but I doubt the proportion would be zero. Even a few policemen shot by desperate people defending their homes and families would create a sensational effect. It would seem to be a cause at least as just as most for which people have fought in the history of mankind. When you look at the history of genocides and ethnic cleansing abroad, what's terrifying and strange is how *quickly* groups that lived together harmoniously enough can begin killing each other, how *fragile* peaceful co-existence is. One reason for this is that people are bad at generalizing and making inferences when quantities of millions are involved. The sensational murder cases that waste time on the news illustrate this: people ought to think, hey, in a nation of 300 million people all kinds of things will happen, but just because some husband in California had an affair and murdered his wife doesn't mean there's a nonnegligible chance of that happening to anyone I know. But they're not smart enough. In the same way, if the government arrests 1 million illegal immigrants, and 100 of them resist by shooting, it would be monstrously unfair for people to conclude that illegal immigrants in general are cop-killers, yet in practice it would be almost inevitable. If, in return, a few native-supremacist vigilantes or hate groups killed 50 immigrants, this would have the same sensational effect in the Hispanic community. Where does the escalation end?

Maybe I'm overstating how bad mass deportation would be, though I doubt it. But even the possibility of causing one-tenth of the horrors I'm suggesting should be more than enough reason to rule out mass deportation.

Steve Smith

For me, at least, the kinds of considerations you present here are much more persuasive and promising than arguments about "natural rights" or a "right to migrate."

Nathan Smith

Well, it's easier to grasp. But the deep reason why mass deportation would lead to horrors is that it involves massive violations of natural rights, or, if you like, of offenses against justice, of wrongdoing. I believe that violating the moral law either typically or always does lead to disutility, but we can't expect everyone in every situation to figure out exactly how. For moral progress to be secure, it needs to be rooted, not in elaborate consequentialist calculus, but in the knee-jerk reactions of conscience.


I would say that a single deportation is like a single violation of free speech: it's probably not of major consequence on its own, but, repeated, it rapidly builds into an objective moral horror.

Joyless Moralist

But of course, there might be people -- me, for instance -- who oppose the mass deportation of 12 million people for reasons like the ones you offer in your later reply, but who don't believe in a preinstitutional right to migrate. They might oppose the deportation because they think it's bad to separate families, or because they oppose particular *measures* that would probably need to be used, or just because they think it would be morally better (so long as it is reasonably within our capacity) to show compassion on what are basically ordinary people who have fallen on hard times. All those reasons are perfectly intelligible and don't seem to depend in any way on recognizing a right to migrate.

You and Nato insinuate that the wrongness of one thing (the mass deportation of millions) is actually related on some deep and non-obvious level to the wrongness of preventing people from going wherever they want. You could possibly be right, but some pretty extensive argumentation would be needed to connect them. The claim reminds me of the people I knew in high school and college in certain service organizations for which I volunteered. They often tended to assume that any desire I had to help the poor (say, through soup kitchens or homeless shelters) was evidence that, deep down inside, I acknowledged the justice of large-scale wealth redistribution. I met people who obviously saw me as a maddening contradiction -- someone with a penchant for service, but an overall rosy outlook on capitalism! How absurd!

Now, obviously you appreciate that there are many economic and political questions that these happy socialists failed to grasp. In this case it could be I who am failing to grasp certain moral truths, but in any event I would assert two things. First, the wrongness of deporting 12 million people en masse should not be counted as strong evidence for your theory about migration rights. At best, it is a data point that is nicely accommodated by your theory, but also by many other possible views. Second, your talk about migration rights is not the best rhetorical strategy if you just want to persuade people to oppose certain planks of the Republicans' platforms, just as arguments for communism are not the best way to persuade people to volunteer in soup kitchens.

By the way... you said in your original post that most Americans are unaware of how difficult/impossible it is for most people to come to our country? Is that really true? I thought it was basically common knowledge.

Nathan Smith

JM and Steve Smith question the notion of a "right to migrate," but they do not say where they dissent from my argument. Maybe they dissent in so many places that they wouldn't know where to begin. Their preference for a utilitarian or consequentialist argument over a rights-based argument may mean that they doubt the existence of *this* right or that they question the existence of rights generally.

If the latter, I think it may be hard to avoid a corollary they might find unwelcome: might-makes-right Hobbesian sovereignty. I attempted to outline the sources of legitimacy for law (natural law, democracy/consent, utilitarianism), and showed why none of the sources provide legitimacy to immigration restrictions. If the method of defining limited just powers for the state is rejected, how is one to avoid the conclusion that the state can do anything it wants?

Joyless Moralist

You're obviously assuming that the only two options on the table, when it comes to ethical theory, are consequentialism and what you call a "rights-based" theory. Why is that? Into which camp would you place Aristotle, or St. Thomas Aquinas?

Though I might disagree with your argument at several points, it will be most convenient if I pick out one, so I'll just say this: I disagree that there exists a particular set of actions that "others are forbidden to prevent me from doing." We've talked about this before. In my view, whether or not a person may prevent me from doing a certain thing depends, not only on the action and the attendant circumstances, but also on the relationship the person has to me.

Take chewing bubble gum, an action that, in the abstract, seems basically harmless, and the sort of thing I can choose to do if I wish. If a random stranger in a park spontaneously orders me to spit out my gum, I have no obligation to heed him. But if I'm a child and my mother tells me that I'm not allowed to chew gum, I think I'm obliged to obey her. If I'm a soldier and my commander gives me a similar order, I have to obey him. Other people might have jurisdiction over particular spheres. I don't know that my parish priest is entitled to order me not to chew gum in general (though he might properly advise against if he somehow thought that it was spiritually harmful to me) but I think I'm obliged to listen if he asks me not to chew gum in his church, or while I'm at Mass. A schoolteacher probably doesn't have the authority to prevent her students from chewing gum at any time, but I think the kids are obliged to obey if she asks them not to do it at school/in the classroom. An employer might make a similar rule for his employees when they're on the job.

So, see, I don't think I have any kind of natural right to chew gum. There isn't a universal moral prohibition against it, though, which means I can do it except when I can't, which is to say, except when some sort of less-than-universal prohibition prevents me. Other activities are like that too, I think, and moving from point A to point B seems to fall into that same class of actions.

Nathan Smith

re: "You're obviously assuming that the only two options on the table, when it comes to ethical theory, are consequentialism and what you call a 'rights-based' theory." Not ethical theory, more like political theory. And I don't know enough about Thomas Aquinas or Aristotle to say for sure; my not-very-educated guess is that they'd straddle the divide and it would be hard to distill from them a system for answering the types of questions that consequentialist and rights-based political theories need to deal with today. Probably Aristotle, with his naturalist leaning and corporatist politics, would be a bit more consequentialist, and Thomas, under the influence of Christianity with its concern for the individual soul, would point more in the direction of rights. But I'm shooting in the dark here.

re: "whether or not a person may prevent me from doing a certain thing depends, not only on the action and the attendant circumstances, but also on the relationship the person has to me..." All the argumentation here has the following weakness: although it is presented as an alternative to an argument from rights, it all fits perfectly well within the rights framework, and in fact it doesn't take much thinking to realize that's just how we do understand it. Yes, parents have special powers to coerce their under-age children in ways that we would not ordinarily condone. Everybody recognizes that. Other than that:
(a) a soldier has made special commitments of obedience, by which he has voluntarily waived all sorts of rights that he would otherwise enjoy, including, perhaps, the right to chew gum,
(b) the church is private property owned by an organization, the Church, and those who attend Mass are there, legally speaking, with its permission, and the priest, as a representative of the Church, can specify the conditions under which people are allowed to be present; one of those conditions may be "not chewing gum,"
(c) likewise with the school.

JM seems to think she has shown that there is *not* a natural right to chew gum, but everything she writes is perfectly consistent with the standard libertarian view that there *is*, so to speak, a natural right to chew gum, which, however, like most such rights, is not necessarily enjoyed by children, and which a person might waive in order to attend church or school or join the army, none of the latter being natural rights since they require assistance from others (e.g., priests, teachers, and generals).

What might show that there is not a natural right to chew gum would be to show that either the state, or other private individuals, can justly coerce you to stop chewing gum. If a law against chewing gum would not be regarded as unjust, or if it would be deemed appropriate for me to stop you on the street and take the gum out of your mouth by force, then maybe there isn't a natural right to chew gum.

Nathan Smith

re: "my parish priest ... might properly advise against if he somehow thought that it was spiritually harmful to me ..."

Forgot to answer this one. Yes, but he oughtn't to have power to *coerce* you to stop chewing gum (or, say, drinking six beers every night, to cite an example where the moral advice is more plausible).

I should say that I'm not definitely committed to natural rights-- there may be a better conceptual framework-- but there's a powerful intellectual tradition surrounding natural rights in America (the world's most successful polity, after all) and the ethical-cum-political-economy arguments for the concept seem to be pretty strong, too.

Joyless Moralist

I don't think of the case of the teacher or priest cases as straightforward cases of "I have an option between ceasing to attend this school/church or spitting out my gum." If I enter a business as a customer and they tell me "we have a rule against gum-chewing on these premises" then I see it as a straightforward choice. I'm not obliged to spit out the gum, but I'm being informed that I have an option between that and leaving. All else being equal, the choice is mine and is morally neutral because the manager is not in a position of authority over me. With the priest or the teacher, I think I have a positive obligation to obey them. I may or may not be able to manipulate circumstances such that I'm not under their authority anymore, and it may or may not be wrong for me to do this, but so long as I *am* under their authority, I should obey.

I understand that a libertarian would just deny that I have a presumptive obligation in the teacher/priest cases, any more than I would in the business case. But the fact remains that people don't necessarily have the option to get away from the authorities that are ordering them to do this or that. If I get drafted into the army, I don't volunteer to be under the command of Major Whoever, but on my view, I'm still obliged to do what he says (with certain limitations, but I won't get into that now.) So, in short, I *don't* voluntarily sign away any rights in that case, but I can still be prevented from doing lots of things, such as chewing gum, or going wherever I want to go.

Children, for their part, don't choose their parents and generally don't have the option to remove themselves from their parents' control. You scoff that "everyone recognizes" the legitimacy of parental control, which is true, but I don't see how that makes the case any less problematic for you. How would you describe it? Would you say that parents are permitted to trample on their children's rights, or that children aren't really full-fledged people and thus don't have human rights in the first place?

Obviously, I would just say that there was no right to chew gum at all. In the absence of other sorts of restrictions, I guess I can do it if I want, and people with no relevant authority shouldn't forcibly prevent me. However, I see no reason why there couldn't (in theory) be a law against it. In practice this would be silly, since there's no good reason for it, but if a reason did arise, I don't think it would be an injustice to anyone if they were prevented from chewing gum.

Nathan Smith

re: teacher/priest.

In the case of the priest, the priest has a right to kick you out of his church by force if you chew gum. But if you say that chewing gum is more important to you than his church, he does not have a right to *coerce* you to return. He may have some non-legally-binding moral authority such that you would be morally in the wrong if you made that choice, but that's a sort of higher morality that ought to remain in the voluntary sphere. (This is required both by the liberal/libertarian conception of the state, and by Christianity itself.) The teacher is in the same position as the priest if her students are adults-- that is, she controls her classroom but can't prevent her students from leaving it-- except that she wouldn't seem to have the same moral authority. If her students are children in the compulsory phase of education, the problem collapses into the general problem of beneficent coercion of children.

re: "Would you say that parents are permitted to trample on their children's rights, or that children aren't really full-fledged people and thus don't have human rights in the first place?"

Something like the latter, though of course children *are* people, nobody doubts that, but they are assumed not to have sufficient mental and/or moral development to have full responsibility for their decisions, or the full freedom that is associated with responsibility. This is a bit of a problem for libertarians who want to be very doctrinaire and purist, because a cut-off age of responsibility, say, 18, is obviously arbitrary. But it's hardly plausible to deny the child/adult distinction or the difference in rights that goes with it. Every society recognizes such a distinction. JM seems to suggest that the non-applicability of the full rights concept to children is odd and discredits the concept as a whole. Are we all like children then, and the state is like our parent, to coerce us in our best interests as it sees fit?

re: "I see no reason why there couldn't (in theory) be a law against [chewing gum]..."

I think it's true that, while there might be considerable outrage among the public about a law against chewing gum, most critics would frame their critique as saying the law was silly or stupid rather than that it was unjust. That might change if people began to be arrested for breaking such a law, particularly if they had some compelling reason to do so (a medical reason, say).

Joyless Moralist

I think we're getting a bit tripped up here by a certain ambiguity: are we talking about *natural* rights here, or *political* rights? You stated the "right to migrate" case as though it was a natural right, so I've been addressing it on that level. I suppose you might try to make a case that there's no *natural* right to migrate, but that it should be a political right (that is, the *state* doesn't have the authority to prevent us from migrating, though somebody else may.) In order to discuss specifically political rights, we'd have to determine in more detail what states specifically should be permitted to do.

"Are we all like children then, and the state is like our parent, to coerce us in our best interests as it sees fit?"

Very possibly, within a certain sphere, yes.

I could say more about this, but I have to go have a driving lesson. :) Maybe later.

Nathan Smith

If we're going to draw distinctions between categories of rights, I'd make it as follows. There are:

(a) Rights as political facts. In this sense, "I have a right to free speech" means that, in fact, I can say whatever I want (with certain limits: "your money or your life!" is not protected speech) and the state will not prevent or punish me. It is a configurations of persons and powers and understandings and traditions that is predictive of the absence of a certain kind of negative consequences for engaging in some action. "I have a right to free speech" would be true (probably) in America, but false in China.

(b) Rights as moral entitlements. In this sense, "I have a right to free speech" is a moral claim that, whatever the state may do to me if I speak to my mind, I *ought* to be allowed to speak it unmolested. In this sense, "I have a right to free speech" would be equally true in America and China, the difference being that in China my rights are liable to be violated by the state, but they still exist, and the Chinese government acts unjustly in violating them.

Now, I think there is a right to migrate in the sense (b). To describe the right to migrate as a natural right is actually quite... well, natural... since migration is something an individual can do with his own strength, without necessarily needing any help from others, and it is something that all sorts of animals do naturally, so that mankind's confinement within borders is especially anomalous. But it does sound a little bit strange to speak of a natural right to chew gum, since gum does not occur naturally (as far as I know) but is the product of a complex economy. Libertarians do typically talk this way, but it sounds a little funny. My claim is that the state does not have just authority to restrict migration, except where there are real grounds to regard migration as a prelude to aggression against the life or property of its citizens, and neither does anyone else by coercion. Possibly there may be others with non-legally-binding moral authority to tell some persons not to migrate.

Steve Smith

Fortunately for everyone, time constraints prevent me from going on at length about what seems to me the mischief of actually trying to resolve difficult questions of justice or political ethics by trying to reason from some ontologically mysterious "natural right," extrapolated from highly simplified and fictional situations and then transferred to complicated real world problems. But let me just say that an essay that might be of interest to some of you is by Vigen Guroian, an Orthodox theologian. It's called "Human Rights and Modern Western Faith: An Orthodox Christian Assessment," and it's in a collection entitled Does Human Rights Need God? (2005). Guroian argues that "Human rights thinking is alien to Orthodoxy; however, the notion that a normative human nature is concretely manifested in every human individual who comes into existence is central to Orthodox anthropology and theology." At the very least, I would think this claim shows the error of maintaining that "It's either natural rights or Hobbes." And for myself, I think that what he says about "normative human nature" is a more promising starting point for thinking about these sorts of questions than is theorizing about "natural rights."

Nathan Smith

Well, thanks for the reference. I'll read the essay if I can find it. I wouldn't be surprised if I'd agree with Guroian's argument and the differences would turn out to be semantic. Some treatments of "natural rights" may be, or at any rate may sound, metaphysically odd, but I don't think mine is, anyway no more so than the moral law itself, of which is a sort of inversion or translation. If Guroian thinks that the realization of a "normative human nature" should be compelled by the state in some thoroughgoing way, I would probably differ, and I know the sayings of Jesus that I would allude to in support of my dissent; but it might be possible to outline a reasonable limited state from this premise. The trouble is that it seems clear that a state must ultimately create positive/political rights in order to govern justly, and so if you strenuously avoid rights language early in the discussion you'll have to engage in a translation back to it at a later stage. I prefer to derive rights directly from the moral law as best I can and then think about how the state can create them. But no doubt I'm writing too much dissenting about an essay that I haven't read. "Human rights" is a phrase used so many ways these days that there are no doubt senses of the phrase which are "alien to Orthodoxy," just as there are senses of the phrase in which the 20th century has underlined with oceans of martyrs' blood how much Orthodoxy needs them. I've defined the sense in which I meant them in the essay above, and I don't think in that sense they require strange metaphysical commitments, and I'm quite confident that the idea they are at odds with Christianity, Orthodox or otherwise, is mistaken.


"...the mischief of actually trying to resolve difficult questions of justice or political ethics by trying to reason from some ontologically mysterious "natural right," extrapolated from highly simplified and fictional situations and then transferred to complicated real world problems."

I hear you, brother.

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