03 June 2018

Migration and Democratic Self-Determination

Why Does the State Have the Right to Control Immigration?' by Sarah Song in (2017) LVII Nomos comments 
Public debate about immigration proceeds on the assumption that each country has the right to control its own borders.1 The right to control immigration is broadly assumed to flow from state sovereignty. This view is reflected in early American immigration jurisprudence. In establishing the national government’s power over immigration, the U.S. Supreme Court declared, “Every nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominion, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”2 The power to control immigration has been qualified in certain respects by international law, such as in the case of diplomats whose privileges are well-defined in law and over whom the host state’s discretion is limited. However, when it comes to the question of the right to exclude foreigners, international law accords enormous discretion to states. While there are constitutional limits in some countries on how noncitizens already inside the territory can be treated, when it comes to foreigners outside the territory, states may act solely on the basis of considerations of advantage or convenience. As Linda Bosniak has observed, this “hard on the outside and soft on the inside” approach is reflected not only in law but also in many normative theories of migration and citizenship: an ethic of inclusion applies to noncitizens inside the territorial boundaries of the state, while an ethic of exclusion applies to those outside. 
But what, if anything, justifies the modern state’s power over borders? Why, if at all, does the state have the right to control immigration? Many scholars of immigration and citizenship take this question for granted, focusing instead on questions about the substantive content and procedures of immigration law and policy. The reason for this is partly pragmatic. After all, states exist, and they exercise power over borders, whether or not there is a good justification for such exercise. In addition, scholars of migration and citizenship understandably focus their attention on more pressing questions about the substance and procedures of immigration policy. But I also think that many immigration scholars really believe that the state has the right to control its own borders, even if they have not developed the normative grounds of their view. 
How, if at all, might the state’s right to control immigration be justified? This chapter provides an answer in three sections. First, I examine the earliest immigration law cases in U.S. history in order to uncover the underlying assumptions about sovereignty and immigration control that make up the normative foundations of U.S. immigration law. These cases rely on dominant principles of international law of the day, especially the work of Emer de Vattel. I argue that while these cases make clear the great extent of the state’s power over immigration, the leading theorist they rely on falls short of providing adequate normative justification of the state’s right to control immigration. In the second section, I turn to contemporary political theory and philosophy for justifications of the right to control immigration. I critically assess three leading arguments, based on (1) cultural and national identity, (2) freedom of association, and (3) property. In the third and final section, I offer an alternative argument based on the idea of democratic self-determination.
Song argues
We can build on the idea of self-determination to develop an alternative, democratic justification for a state’s right to control immigration. My argument consists of the following claims:
1. A people/demos has the right of self-determination. 
2. The right of self-determination includes the right to control admission and membership. 
3. The demos should be bounded by the territorial boundaries of the state. 
4. Citizens of a territorial state, in virtue of their role as members of the (territorially defined) demos, have the right to control admission and membership.
I briefly elaborate each of these claims in the following. 
(1) A people/demos has the right of self-determination. 
This is the idea of popular sovereignty: that a group of people (the demos) ought to have independent political control over significant aspects of its common life. As a concept in international law, self-determination was seen to apply only to specific territories (first, the defeated European powers; later, the overseas trust territories and colonies) and was understood primarily as a right of secession. It has evolved to be understood as a right of all peoples to participate in democratic processes of governance. The claim of self-determination need not be understood solely as a claim for full political independence or autonomy; it is a claim for some independent political control over significant aspects of its common life. Self-determination implies an independent domain of political control, but it leaves open the domain of control (what sorts of activities and institutions the group controls), the extent of its control over various items in the domain, and the particular political institutions by which the group exercises control over its domain. 
What is the content of the right of self-determination? We can begin by looking to the principles and practices of international law. Thomas Franck suggests three components to the normative entitlement to democracy in international law, which already enjoy “a high degree of legitimacy in international law”: the right to participate in political processes, the right of free political expression, and the right to take part in “periodic and genuine elections which shall be taken by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” Together these elements aim at “creating the opportunity for all persons to assume responsibility for shaping the kind of civil society in which they live and work.” Turning to moral and political theory, a more minimalist interpretation of the right of self-determination says it is a right to some say in the making of the policies to which one is subject. For example, one might focus on accountability rather than equal rights of participation, identifying, as Buchanan does, three features that make up a more minimal conception of democracy: (1) representative majoritarian institutions for making most general laws “such that no competent individual is excluded from participation,” (2) the highest government officials are accountable to the people by being subject to removal from office, and (3) there are institutionally secured freedoms of speech, association, and assembly, which are required for reasonably free deliberation. On a more demanding interpretation of self-determination, what is required are equal rights of participation in the governing processes. For example, Thomas Christiano defends the idea of each citizen having “an equal say” in determining the most fundamental public rules. This more demanding interpretation is required for an account of self-determination to count as democratic self-determination. 
What are the grounds of the right of democratic self-determination? To anticipate the objection that democratic self-determination is inherently incompatible with respecting individual human rights, it is important to see that self-determination can be derived from the premise that all persons qua persons should be treated with equal concern and respect (the moral equality principle). There are different views about what it is about persons that is to receive equal respect (e.g., whether it is the well-being/good of persons or the autonomy of persons that is the proper object of equal consideration), which we need not settle here. The moral equality principle is the most common justification offered for basic human rights, rights whose violation poses the most serious threat to the individual’s chances of living a decent human life. The familiar list of basic human rights includes the right to life, the right to security of the person, the right against enslavement and torture, and the right to resources for subsistence, among others. More controversially, the case can be made that respecting the moral equality of persons also requires recognition of the right to democratic governance. Equal consideration requires that all persons be regarded as equal participants in significant political decisions to which they are subject. The right to democracy is an important element of the institutional recognition of the equality of persons. 
Even if one rejects the idea of a human right to democratic governance, there are instrumental reasons for recognizing the right to democracy as a legal aspiration in international law. Democratic governance is of such great instrumental value for the protection of human rights that it ought to be required for any government to be considered legitimate. Evidence in support of this argument is Amartya Sen’s work showing famines are much less likely in democracies, as well as the “democratic peace” literature that suggests democracy is the most reliable form of government for securing peace, which should lessen the violation of human rights. These arguments support the case for understanding the right of self-determination as a right to democratic governance. 
(2) The right of self-determination includes the right to control admission and membership. 
The right of self-determination of a people is the right to independent political control over significant aspects of its common life. As Frederick Whelan puts it, “The admission of new members into the democratic group . . . would appear to be such a matter, one that could not only affect various private interests of the current members, but that could also, in the aggregate, affect the quality of their public life and the character of their community.”95 Walzer goes even further: “Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination.”96 I agree with the basic claim made here by Whelan and Walzer but part ways with Walzer on the grounds for self-determination. In my view, the right of self-determination derives not out of a concern to preserve a distinctive cultural identity as discussed earlier, but rather from respecting the right of individuals to be regarded as equal participants in significant political decisions to which they are bound.
(3) The demos should be bounded by the territorial boundaries of the state. 
This is a controversial claim, which I have defended in another essay and which I can only briefly summarize here. I begin with the normative requirements of democracy. A settled conviction about democracy is that it is rule by the people who regard one another as equals. What is required to meet this demand of equal regard? The idea of equality might enter a theory of democracy at different levels: at the level of normative justification and at the level of institutional design. A more complex view of democracy differentiates between normative justification and the institutional requirements of democracy. As a matter of justification, the idea of equality places limits on the sorts of reasons that may be given to explain why we should accept one rather than another conception of fair terms of democratic participation. It is the role of a theory of political equality to connect the normative justification with the institutional requirements of democracy. Political equality is a constitutive condition of democracy. Political equality requires protecting certain equal rights and liberties, as well as ensuring the equal worth of these rights and liberties by providing equal opportunities for political influence. The realization of political equality depends on the existence of a stable bounded demos. The modern state demarcates such a stable demos. The boundaries of the demos are already demarcated according to the boundaries of state membership, but my argument is not that we should accept the state system because it is the status quo. My point is that we have reasons internal to democracy for bounding the demos according to the territorial boundaries of states. What are these democratic reasons? 
First, it is a historically contingent but morally relevant fact that the modern state is the primary instrument for securing the substantive rights and freedoms constitutive of democracy. Without the state, individuals will disagree about what rights they have and when rights are violated. Even if individuals agree on what rights they have, some people may not respect those rights without a common third-party enforcer. A state system of public law establishes a common view of the rights of individuals, and it has the coercive means to enforce that view. The state also provides institutions for adjudicating conflicts among individuals. In short, the institutions of the modern state serve legislative, executive, and judicial functions necessary for the creation and maintenance of the system of rights, including rights of participation. A second reason for bounding the demos according to the boundaries of the territorial state has to do with solidarity. The state is not simply an instrument of decision making or a means to securing rights; it is also a key site of solidarity, trust, and participation. Democratic participation happens not in a vacuum but in relation to a rich network of institutions. Trust plays an indispensable role here. As Charles Tilly has argued, trust “consists of placing valued outcomes at risk of others’ malfeasance, mistakes, or failures.” Trust relationships are those in which people regularly take such risks. Trust is more likely among a group of people who come together repeatedly within a stable infrastructure of institutions and who share a sense of solidarity rooted in a shared political culture. To the degree that individuals integrate their trust networks into political institutions, the greater the stake people have in the successful functioning of those institutions. As Tilly puts its, individuals “acquire an unbreakable interest in the performance of government. The political stakes matter.”100 A shared political culture based on common citizenship is crucial for fostering trust and solidarity, which in turn enables democratic participation. 
A third reason for bounding the demos according to the territorial boundaries of states focuses on the connection between citizens and their political representatives. Democratic representatives must be accountable to a specified demos. As Seyla Benhabib has argued, “Democratic laws require closure precisely because democratic representation must be accountable to a specific people.” A system of territorial representation ensures that political representatives know in advance to whom they are accountable. Territorial representatives know they are acting on behalf of the citizens of their state, and the solidarity based on a common political culture within a state is likely to make representatives more attentive to their constituents than if the constituents were all of humanity constituting a global demos or episodic demoi defined by the “all subjected” or “all affected” principles of democratic legitimacy. In sum, the demos should be bounded by state boundaries because the state (1) is the primary instrument for securing the conditions of democracy, (2) serves as the primary site of solidarity conducive to democratic participation, and (3) establishes clear lines of accountability between representatives and their constituents. 
Among the many objections one might raise is that democratic theory, properly understood, presupposes an unbounded demos. Focusing directly on the issue of border control, Arash Abizadeh has argued that the democratic theory of popular sovereignty is incompatible with “the state sovereignty view,” which says immigration control should be under the unilateral discretion of the state itself. Abizadeh comes to this conclusion by way of two premises: (1) that the demos is, in principle, unbounded, and (2) that democratic justification for a state’s regime of border control is owed to all those subject to the border regime’s coercive power. He defends the first premise by arguing that the contrary thesis (that the demos is inherently bounded) is incoherent. The incoherence is said to stem partly from the “boundary problem” in democracy theory: that democracy “cannot be brought to bear on the logically prior matter of the constitution of the group itself, the existence of which it presupposes.” As I have argued elsewhere, the claim that democratic theory cannot answer the boundary problem rests on a narrow, proceduralist conception of democracy. If we instead view democracy as a broader set of substantive values and principles, including the principle of political equality, we have reasons internal to democracy for bounding the demos according to the territorial boundaries of the state. Abizadeh argues that the incoherence of attempts to bound the demos also stems from an externality problem: state action, including its border policies, always involves exercising coercive power over members and nonmembers, and such power must be justified to all subjected to coercion. This point connects to Abizadeh’s second major premise that interprets the idea of democratic legitimacy as requiring all those subject to a state’s coercive power to have an equal say in the exercise of that power. While I agree with Abizadeh that justification is owed to all those subject to the coercive power of the state, I disagree with the conclusion that justification must take the form of equal enfranchisement of all members and nonmembers in state policy making. It is plausible to think the demand for justification can be met in other ways that are compatible with democratic principles, such as supporting policies that respect the basic human rights of all those subjected to the policy and supporting the development of democratic institutions in the home states of nonmembers. 
One reason for thinking that it may be compatible with democratic principles to have different responses for members and nonmembers arises from distinguishing coercion and authority in theorizing democratic legitimacy. Abizadeh interprets the principle of democratic legitimacy as requiring justification to all those who are subject to a state’s coercive power. Another way of approaching democratic legitimacy is more attentive to, in Joshua Cohen’s words, “democracy’s institutional character”: democratic legitimacy “arises from the discussions and decisions of members, as made within and expressed through social and political institutions designed to acknowledge their collective authority.” We can recognize that democracy comes in many forms, but “more determinate conceptions of it depend on an account of membership in the people, and correspondingly, what it takes for a decision to be collective—made by citizens ‘as a body.’” The demos is not an aggregation of individuals who happen to be coerced by the same power but rather an enduring collective that makes decisions with binding authority. 
(4) Citizens of a territorial state, in virtue of their role as members of the (territorially defined) demos, have the right to control admission and membership. 
If claims 1 to 3 are plausible, then it is citizens of a territorial state, in virtue of their role as members of the territorially defined demos, who have the right to control borders and membership. Citizens are both the ultimate beneficiaries and the ultimate authors of the exercise of jurisdictional authority, through democratic processes of participation and representation. In contrast to the property justification, the state’s right to control immigration is neither an instance of nor derived from private property rights; it is a jurisdictional right. In contrast to the cultural and nationalist accounts, the state’s right to control immigration is not grounded on a claim about the importance of preserving a distinctive culture or national identity; it rests on the right of members of the territorially defined demos to be self-governing as political equals. Selfgovernance includes not only control over current collective decision making and the future direction of the political system but also the right to regulate admission into the territory and into full membership. In contrast to the freedom of association argument, the state’s right to control immigration does not rest on analogies with marriage, religious associations, and golf clubs, and it does not elide property rights over golf clubs with jurisdictional rights over a state’s territory. The state is importantly disanalogous from other associations not only because state membership is typically nonvoluntary but also because of the state’s indispensable role in meeting the constitutive and instrumental conditions of democratic participation and representation.