Last week's reading for our honours class was Kristen Maher's 'Who Has a Right to Rights? Citizenship's Exclusions in an Age of Migration'. It was pretty interesting, actually, looking at U.S. attitudes towards illegal immigrants, and suggesting that their sub-citizen treatment violates their human rights. Interesting. But rather sloppy as a work of philosophy, I thought.
The biggest problem is that Maher never squarely addresses the question of the legitimacy of immigration restrictions. She appears to simply assume that illegal immigrants should be accepted and treated just like citizens. And perhaps they should, but this is a controversial enough position that you really need to provide some argument for it, and not merely assume it to be the case! What's worse is that she doesn't even acknowledge the assumption. That struck me as an incredible oversight.
After all, if such restrictions may be legitimate, then so presumably is their enforcement. That may include disincentives, i.e. the poor treatment of law-breakers, in hopes of deterring others from breaking the law in the first place. Maher never properly considers any of this. She does lament a Border Patrol policy which "prioritizes successful border control over the lives of migrants" (by channelling crossing attempts into more dangerous terrain where apprehensions are easier). While I'm sympathetic to her conclusions, an argument here would have been nice. It is not enough to make a simplistic appeal to "human rights", because we are not typically obliged to ensure that people can carry out criminal activities safely. (An electric fence prioritizes security over the comfort of would-be trespassers -- but that's the whole point!)
So: is it legitimate for a state to restrict immigration? Most left-wingers frown upon the Zionist "invasion" of Palestine. If we respect Arabian sovereignty, how can we not do the same for the United States when they're faced with an influx of unwelcome Mexican colonists? Surely the Mexicans have no greater claim to need or asylum than did early 20th century Jews!
Now, while I don't have any firm views on the subject, I'm actually more inclined to favour open immigration. I think it would be better if the U.S. opened its borders, and I wish the Palestinians had been more welcoming too. Nevertheless, I hold that a nation may legitimately make bad decisions of this type. (This is a perfectly consistent position, as I explained in comments to this uncharitable Right Reason post. The right-wingers ignored my explanation, prefering to tar all liberals as racist anti-semites. All this despite the fact that the author concluded his post by asking, "What is the hidden consistency that underlies this apparently inconsistent but fashionable view? Can someone help me out here?" I guess they were merely rhetorical questions.)
Back to the Maher piece: I also think she was sloppy in characterizing all poor treatment of migrants as violating their human rights. Consider the right to shelter. Suppose that a homeless man and I are both walking down a street where we lack shelter. Are our rights equally violated? Surely not. For I have a home where I can shelter; I simply chose to go elsewhere. The right to shelter is not the right to shelter wherever you want; it is merely the right to have access to some shelter or other. If I have such access, and then freely choose to go somewhere else where I no longer have access to shelter, I cannot very well claim that my rights have been violated. It would be unreasonable for me to turn up at your doorstep, exhausted, and demand that you let me in. (It would be a nice thing for you to do, no doubt; depending on my circumstances, perhaps you even ought to help. But still, I can't reasonably demand it of you. It isn't a "rights" issue.)
The analogy to migrants is obvious. Some of them may come from places where their rights are fulfilled. If so, they do not need their new country to accommodate them in order to fulfill their human rights. You can have a right to shelter, without having a right to shelter in the United States. Again, Maher never considers this crucial point.
The trickier cases involve genuine refugees and asylum-seekers, who have nowhere else to go. For them, being welcome in the new country plausibly is a human rights issue. (It isn't clear who has the obligation to ensure that this right is fulfilled, but let's ignore such complications for now.) At least, their rights have previously been violated, so we need to find some way or other to remedy this situation -- whether it be by inviting them into a new country, or working to improve the situation in their old one.
Another problem with Maher's piece is that she seems to assume that there is only one class of rights: "human rights". But we should distinguish the minimal level of universal and unalienable human rights, from the more expansive set of political rights assigned to citizens in a polity. The former include protections against torture and the like, and have truly universal application: even to criminals and non-citizens. The respecting of such human rights is perfectly consistent with granting citizens further rights. So there's nothing about "citizenship's exclusions" which is necessarily inimical to human rights. Insofar as Maher implies the contrary, she is simply confused.
One interesting point, which our lecturer heavily emphasized, was Maher's identification of 'racist' or 'neo-colonial' aspects to the citizen/alien dualism. There are particular job types which come to be associated with particular groups, and seen as their "rightful place". This is morally deplorable. It is an interesting psychological, sociological, or political point. But I don't see the philosophical interest. Everyone agrees that such racism is abhorrent; there aren't any philosophical issues which need debating here. To focus on this issue is to set up a straw man; it simply isn't where the real disagreement lies. And by failing to address the strongest arguments for the opposing position, Maher fails to provide an adequate defence of her own.
The genuinely contentious issue here is the one (discussed above) that Maher ignores: whether sovereign nations may justly restrict entry/immigration. She does briefly mention the "liberal/contractarian" position, but I cannot discern in her paper anything resembling an argument against it. She instead appeals to anecdotes which associate this position with the racist one, and apparently dismisses it on that basis. Needless to say, that's not good philosophy.