The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In previous posts based on my new book Free to Move: Foot Voting, Migration, and Political Freedom, I explained what the book is about and why I wrote it, described the advantages of foot voting over ballot box voting, and took a closer look at the three major types of foot voting, highlighting their various advantages.
In this one, I preview some of the arguments made in Chapters 5 and 6 of the book, which address a variety of justifications for excluding migrants. I divide those theories into two broad categories: claims that natives have a general right to exclude migrants based on a right to self-determination, and claims that there is a right to exclude in order to forestall specific harmful consequences of migration. Today, such arguments are usually advanced to justify restricting international migration. But, as well shall see, most can also be used to justify restricting internal migration, as well.
I. Does Group or Individual Self-Determination Give Natives a Right to Exclude Migrants?
A standard objection to foot voting rights is that the existing population within a jurisdiction has a right of self-determination that entitles it to keep out migrants. The political freedom of migrants, it is said, must be restricted to protect that of natives.
Perhaps the most common justification for a power to restrict immigration is based on the rights of distinct ethnic, racial, or cultural groups to self-determination. Thus, France is the rightful property of the French, Germany of Germans, and so on.
Arguments for restrictions on migration based on group membership founder on the flaws inherent in claims that there is a right to live in a polity that privileges a particular culture or ethnic group. Such a right would imply the power to coerce even currently existing residents to keep them from changing their cultural practices.
After all, a culture can be transformed through internal change no less than through immigration. Older generations often complain about the cultural changes created by the choices of the young. Yet few argue that their elders have a right to use force to prevent it, much less to the point of expelling anyone who fails to conform.
Another problem with the group self-determination argument is trying to determine which group has the "right" to control which territory. Perhaps such rights are created when an group that has acquired previously unoccupied territory, and then developed it, without forcibly displacing anyone else But, if so, virtually no actual government can claim such a right, as nearly all are the products of repeated conquest or coercion, and most rule territories occupied by multiple cultural or ethnic groups, not just one.
Ethnic and cultural group-based claims for a right to exclude are particularly problematic for those committed to the principle of non-discrimination on the basis of race and ethnicity. The standard defense of racial and ethnic non-discrimination is that race and ethnicity are morally irrelevant characteristics that people have no control over. Whether a person is black, Asian, white, or Hispanic says nothing about her moral worth, or what rights she should have. Most liberal democrats recoil at the idea that we should restrict people's freedom because they chose the wrong parents.
What is true of race and ethnicity is also true of place of birth. Whether a person was born in the United States, Mexico, or China is also a morally arbitrary characteristic that she has no control over, and which should not determine how much freedom she is entitled to. To adapt a famous quote from Martin Luther King, Jr., place of birth is no more indicative of "the content of your character" than race of birth.
In the book, I also address a number of other, less prominent group-based justifications for exclusion. These include the idea that exclusion is essential to democratic self-determination regardless of whether the group in question has a distinct culture, that rights to exclude are inherent in the very nature of state sovereignty, and that exclusion is needed to enable existing residents to avoid "unwanted obligations."
In addition to group rights claims for states' authority to exclude migrants, there are also individual rights theories, which analogize the nation-state to a private house or club. If a homeowner has the right to bar outsiders from her property, the same reasoning gives a national government the power to exclude migrants.
Despite its widespread use, the house analogy has severe flaws. It appeals to property rights. But it actually ends up undermining private property. Far from protecting property rights, immigration restrictions actually abrogate the rights of property owners who want to rent their property to migrants, associate with them, or employ them on their land.
Perhaps, however, the government is a kind of super-owner that has the right to supersede the decisions of private owners whenever it passes a law that does so. With this modification, the house analogy could indeed potentially justify almost any immigration restrictions a government might choose to set up. But it can also justify a variety of repressive government policies that target natives, as well.
If a state has the same powers over land as a homeowner has over her house, then the state has broad power to suppress speech and religion the rulers disapprove of. A homeowner has every right to mandate that only Muslim prayer will be permitted in his house, or that only left-wing political speech be tolerated within its walls.
We might potentially forestall some of the illiberal implications of the house analogy by establishing constitutional rights against them. But if the analogy is valid, such guarantees are not morally required. They can be granted or withheld at the discretion of the government.
The club analogy has the same implications as the house version. Private clubs can and do restrict membership on the basis of speech, religion, and other similar criteria. A Republican club can exclude Democrats, a Muslim club can exclude Christians and Jews, and so on.
II. Consequentialist Justifications for Exclusion
Many advocates of migration restrictions claim not that there is a general right to exclude migrants for any reasons, but instead that exclusion is often justified by the need to avoid specific negative consequences of migration. These include such dangers as overburdening the welfare state, increased crime and terrorism, and undermining of a nation's political institutions by new citizens who vote for harmful policies. The coronavirus pandemic has highlighted the danger that migrants might spread deadly diseases.
The book addresses a wide range of concerns like this. In addition to those already mentioned, they include the danger of spreading harmful cultural values, the possibility that migration will damage the environment, and the risk that immigrants will undermine "social trust" and damage receiving nations' political institutions.
Here, I briefly summarize my three-stage approach for addressing such issues. First, many of the standard objections to free migration are significantly overblown. If there is little or no problem to begin with, we should not be willing to make any significant sacrifices to "solve" it.
Second, where migration creates genuine problems, it is often possible to deal with the issue by means of "keyhole solutions" that minimize the risk without barring migrants. Instead of applying a meat cleaver that undermines political freedom and inflicts great sacrifices on potential migrants, it is better to apply a scalpel.
Finally, where keyhole solutions are inadequate, policymakers should consider tapping the vast wealth created by expanded migration to mitigate negative side-effects that cannot be addressed in other ways.
I do not claim this approach can solve all conceivable problems potentially caused by foot voting. There are likely to be extreme cases where it fails. But the framework can be effectively applied to a wide range of issues often seen as strong justifications for imposing migration restrictions.
Consider, for example, claims that immigration will overburden the welfare state. Evidence from both the US and Europe indicates that this problem is overblown, as jurisdictions with more immigrants do not have higher per capita welfare spending than those with fewer, and the vast majority of immigrants contribute more to the public fisc than they take out. But to the extent this is a problem, there are a variety of keyhole solutions, most notably restricting immigrants' eligibility for various welfare state benefits, as many nations – including the US—already do. Finally, if keyhole mechanisms prove insufficient, we have the option of taxing some of the vast new wealth created by immigration and using it to defray any additional welfare expenses.
The three-step framework also works for claims that migration needs to be restricted in order to contain the spread of diseases, such as the ongoing coronavirus pandemic – the ostensible justification for Donald Trump's recently extended near-total suspension of entry into the United States by migrants seeking permanent residency. This issue is not in the book, which was written before the pandemic began. But the approach I set out can handle it, nonetheless.
Here, there is a genuine problem, as the coronavirus really is an unusually dangerous public health threat. But it is not clear that travel restrictions can do much to slow its spread, especially when there is already extensive "community spread" in the destination country. Pandemics such as the "Black Death" devastated the world in even in eras when the vast majority of people were peasants or serfs who rarely left the villages where they were born.
There is also keyhole alternative to excluding migrants: impose a 14 day quarantine on entrants, as has been done by South Korea, which has done a far better job of constraining Covid 19 than the US. By that means, migrants can be isolated until it is clear they do not have the virus or are no longer contagious.
A 14-day quarantine may be a deal-breaker for tourists or business travelers. But, for most migrants, it is a small price to pay for the opportunity to live in a society that offers greater freedom and opportunity. And unlike migration restrictions, the combination of free migration and the quarantine keyhole solution does not create a large population of undocumented migrants, who in turn have strong incentives to avoid testing for Covid, thereby facilitating its spread. In the long run, the wealth created by migration also facilitates improvements in public health, including increased medical innovation to combat diseases.
Today, most standard arguments for barring migration are usually used only to justify excluding international migrants. But they apply just as readily to internal foot voting. If the US is analogous to a private club and can therefore bar migrants from Cuba or Mexico, then the same analogy can justify Texas in barring Californians. If the dominant ethnic group of France can bar foreigners with different cultures, then the majority ethnic group of a given US state should be able to exclude people from other parts of the United States who have different cultural and ethnic backgrounds. And if the US government can bar foreigners lest they overburden our welfare state, then wealthier states should be able to bar internal migrants from poorer ones.
Those unwilling to bite such bullets in the domestic context should carefully consider whether international migration is really so different. Indeed, historically these kinds of arguments were used to justify state-government restrictions on the entry of African-Americans, "paupers," and others.
In Chapter 5 of Free to Move, I also address arguments that restrictions on migration are justified in order to protect the rights and interests of the citizens of would-be migrants countries of origin. These include claims that migrants have a duty to "stay home and fix their own countries," arguments that governments should have the power to prevent "brain drain," and claims that potential migrants must work for the betterment of their native lands so that the latter can recoup investments made in their upbringing and education. I criticize such theories on both moral and pragmatic grounds. Like arguments for excluding immigrants, these rationales for barring emigration readily justify restrictions on internal emigration as well as the international kind. If Cubans have a duty to stay home and fix Cuba, perhaps Californians have a similar obligation to fix California, instead of moving to Texas.
I do not claim migration rights are absolute. A sufficiently great evil that can only be prevented by such restrictions might justify imposing them, just as similar tragic situations might justify violating other important human rights. But the immense value of foot voting should at least create a strong presumption against restriction. The right to vote with your feet cannot be absolute. But it should not be lightly set aside.
Note: The Introduction to the book, which provides an overview of the rest, is available for free download on the SSRN website here.