This paper was submitted on December 7th, 2020 as my course paper for PY201: Philosophy and Ethical Reasoning.

Immigration has been one of the more hotly debated topics in American and European politics in the 21^st century. Arguments can become very emotional and personal, so it is important to take a step back from the issue and examine the moral and ethical principles that lie at the heart of the debate. Two writers, Christopher Heath Wellman and Sarah Fine, present educated and informed, yet opposing views on the issue of immigration. Wellman believes there is a qualified liberal case to be made for restricting immigration, while Fine responds to Wellman in firm disagreement. In disagreement with both arguments, I believe the United States has no obligation to create a path to citizenship for illegal immigrants, from both utilitarian and pseudo-deontological perspectives. Namely, that accepting immigrants from developing nations is a net negative to long-run global prosperity, and that each culture has a right to exist and to exclude in order to conserve the practicing of its culture for future generations.

Wellman’s essay, “Immigration and Freedom of Association,” is divided into four sections. First, he makes the case for restricting immigration based on the generalization of the individual freedom of association. Second and third, he refutes the egalitarian and libertarian cases for unrestricted immigration. Fourth, he explores the ethics of a discriminatory immigration policy. To begin his first section, Wellman establishes freedom of association as an acceptable moral principle. In choosing to marry or not marry, or in choosing to practice a religion or not, Wellman explains that we respect an individual’s right to associate or dissociate with anyone they choose. Arranged marriages and forced conversions are not permitted anymore because liberal societies have accepted the freedom of association as each person’s individual right, and that nobody can be forced into a contract he does not choose. The main point in this section comes when Wellman extends this freedom of association from the individual to the state, saying that a state has the right to determine who should be invited into its political community. Just as groups like country clubs and fraternal organizations can exclude those they do not want as members, so should a state be allowed to reject membership to any potential immigrants, Wellman argues.

Some critics, Wellman points out, believe that a political community on the scale of a country cannot possibly be entirely voluntary, and thus not free associations. Wellman responds that it would be unethical to force a nation to join NAFTA or the European Union, so a state has at least some degree of associative freedom. Wellman asks rhetorically if it would be wrong for the United States to annex Canada. Surely, he argues, Canada has a right to determine if it wants to be annexed or not because it has a right to self-determination as a state. Wellman also explains that it is permissible to restrict immigration because citizens have a right to care about who might come to join their political association, and that a nation made up of people who dislike each other’s presence is not healthy. Wellman makes clear, however, that he does not defend a consequentialist case for immigration restriction.

Wellman summarizes the egalitarian case for open borders as holding that some people are born advantaged or disadvantaged to others so opening borders is necessary to allow everyone equal access to the benefits of wealthy societies. Wellman accepts the premise that all people are of equal worth but does not believe that exactly equal outcome is necessary; only that there must be no structures of oppression forcing certain people to be below others. This, in his view, does not require the free movement of people across borders. Second, Wellman argues that helping certain disadvantaged immigrants could further disadvantage the native population of a state and thus work counter to the goal of equality. To the libertarian argument that a state cannot restrict the free movement or voluntary interactions of a person by closing a border, Wellman says that if this idea was taken to its extreme, then anarchy would be the only legitimate form of governance, as all government requires the precedence of the state’s sovereignty over individual property rights. A landowner is not the absolute dictator of his property; he is still beholden to the laws of the state in which he resides.

Wellman does not believe that a state has the right to deny immigration based on race or culture in most cases. He argues that if a state has any members of a group that might be discriminated against in immigration, then it is unethical to restrict this kind of immigration because it would not be treating those who are already citizens as equal members of the political association. For example, if a state were to deny entry to all blacks, this would be unacceptable because blacks in the country would be made to feel inferior to other groups. The exception that Wellman provides is a state like Israel, which was designed to be a settlement for Jews only. In that case, it would be acceptable for only Jews to be admitted, so long as all current citizens are also Jewish. This is not actually the case but is the one hypothetical exception Wellman describes.

I disagree with Wellman’s generalization of the freedom of association to an entire state. He selectively applies it to certain situations, making arbitrary distinctions between them like in the case of race-discriminatory immigration policies. The logically pure form of Wellman’s argument would permit racial discrimination in immigration, as the right of white people to not associate with black people is indeed an issue of associative freedom, however discriminatory and abhorrent it may be. Wellman’s argument about forced entry into the European Union or NAFTA also does not hold, because to functionally force a nation into a contract would require the use of force against that nation, and the moral sin in that case would not be the violation of the nation’s associative freedom but rather the act of aggression against another state. Simply declaring a nation to be part of NAFTA does not have any real effect and thus cannot be a violation of anyone’s freedom of association. States cannot have associative rights in the same way that individuals do.

In her essay, “Freedom of Association Is Not the Answer,” Fine refutes Wellman’s liberal case for immigration restriction from the perspective of a fellow liberal. Fine first briefly summarizes Wellman’s essay. She offers three main criticisms of Wellman’s arguments: that exclusion of immigrants can be harmful to potential immigrants; that a state cannot be considered a voluntary association; and that the claim to rightfully held territory that many states have is contentious.

Fine agrees that the right to self-determination is important, but that one’s right to do as he wishes with whom he wishes ends when it begins to infringe on the rights of others or harm them and their interests. This is a commonly held belief in the classical liberal school of thought and is even enshrined in the Ninth Amendment to the United States Constitution. Fine argues that denying an impoverished immigrant, who has no belongings or home to return to, entry to a state that has the capacity to help him, indeed causes harm to this person and therefore is not justifiable. That potential immigrant might be sent back to violence, instability, plague, or drought. Re-entering those situations would likely cause death or serious harm. Fine believes the burden of responsibility for harm to this person lies on the state that had the ability to take them in and chose to turn them away.

Fine also critiques Wellman’s assertion that a state could be considered a voluntary association and given the same rights accordingly. Many modern nations are considerably diverse—in religion, in race, in ideology, et cetera. To follow the interests of one group of citizens and restrict immigration would be to act contrary to the interests of those who support immigration, and thus the political association would not be voluntary. Most citizens of a state do not expressly choose to be there, but rather are born there and continue to live there. A truly voluntary association would require the explicit consent and agreement of every single citizen to decide to live together and abide by certain principles. This means that Wellman’s argument for a collective freedom of association at the state level is invalid, as the rights of the individual cannot be generalized to a collective unless the collective is homogeneous in its values and desires.

I agree with Fine that a state cannot be considered a voluntary association. A private social club or fraternal organization, which requires each potential member to pledge into the organization and accept its values, and to likewise be accepted by the existing members, is indeed a voluntary association. However, citizenship in a nation like the United States is conferred by birth. Most Americans never chose to become Americans; they just are. In this sense, America can certainly exist as a culture and as a nation, but it cannot be considered a voluntary association on the same level as a professional guild or sports team and thus does not derive its rights to exclude from this concept. America’s right to exclude is derived from its status as a sovereign nation with rights to its land that possesses a distinct culture.

Fine’s final point brings into question the legitimacy of a state to attempt to place any restriction on its border. If the borders of a country were secured by force against others, as is the case in nearly every modern nation, then the government does not have a legitimate claim to that land. Fine provides the example of a private golf club that seeks to exclude certain people from their property. She grants them the right to exclude, so long as they legally own the land upon which the club exists. If the land is stolen, they have no right to deny anyone access. Fine grants that many of Wellman’s points could be valid if more evidence was provided and finishes by again calling into question the right of any state to control its border.

Neither Fine nor Wellman believe that “ethnic, cultural, or national groups have a right to limit immigration in order to preserve their distinctive characters.” Both writers generalize this point by equating culture and race, which is intellectually dishonest. For example, Germans and Frenchmen are genetically identical down to the Y-Haplogroup, but one cannot possibly argue that their cultures are the same or entirely compatible with each other.

I do not believe there is anything wrong with a nation seeking to conserve its historical culture. In fact, I believe there is a moral imperative to conserve cultures and that an attempt to needlessly erase cultures and traditions is immoral. Thus, in my view, the only immigrants that have a right to settle in a country are those who are culturally similar to their target nation or express a desire and ability to fully assimilate. Someone who wishes to move to China but refuses to adopt Chinese language, dress, and customs has no right to enter China. Likewise, someone who wishes to move to the United States but refuses to learn English and partake in traditional American culture has no right to enter. Criticisms of this view include the assertion that America is a “nation of immigrants” (a neologism of the 1960s developed as a political slogan to garner support for more relaxed immigration policies) or that America has no singular culture due to its diversity. These ideas are absurd. For centuries, Americans have spoken English and abided to Protestant Christian social teachings. These are characteristics distinct to an Anglo-Protestant society, strongly influenced by the Calvinist religious and social beliefs of America’s first colonists, with a legal system based in English common law. The Mayflower Compact of 1620, which was the first document of American self-governance, states: “We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord King James… Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a Voyage to plant the first Colony in the northern Parts of Virginia; Do by these Presents, solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick.” Each of the 101 passengers aboard the Mayflower was English and Protestant, including the 41 men who signed the Compact. The document unequivocally establishes a Christian society to be ruled by English law.

America was settled by Protestant Englishmen, governed by Protestant Englishmen, and populated primarily by Protestant Englishmen for a significant part of its history. Indeed, America has welcomed immigrants in great numbers in the past, to the point that America is no longer a majority English or Protestant country, but most of those immigrants were granted residence under the condition of full assimilation to the existing culture. In the late 19^th and early 20^th centuries, many Catholic and Jewish immigrants came to America from Mediterranean and Eastern European cultures but in a generation or two their descendants were fully assimilated into Anglo-Protestant culture, speaking English and valuing American Constitutional ideals and social values. American culture has of course been shaped by the contributions of many who were neither English nor Protestant, but English tradition lies at the root of American culture and underpins everything American culture adopts. Unless potential immigrants to America in the modern day express a similar desire to assimilate, I do not believe there is any moral imperative to allow them residence. I do not wish this argument to be confused for a race-based immigration policy. Such a policy is absurd, as one’s race does not determine one’s culture. Indeed, a black immigrant from Africa may in many cases be better suited to assimilate to American culture than a white immigrant from Europe.

Fine argues that the freedom of association does not apply to a nation when immigrants would be harmed by being turned away. This argument comes from the right place but is ultimately misguided. Granting citizenship to the people of developing countries is not the only way to help them. In fact, the flow of human capital out of a struggling nation might only further worsen the condition of such a nation and lead to even more emigration—meaning that accepting immigrants might only worsen a migration crisis. If inhabitants of a country were encouraged to remain there and take initiative to fix their own domestic problems, the country could see a turnaround in the quality of life. Take Africa, for example. For years, the best and brightest minds from many African countries have been given opportunities to study and work in Europe and America. This is great for those Africans and their immediate families, as well as for Europe and America, but the overall net global prosperity in the long run is diminished. The home country of that individual loses any potential contributions they could have made in science, government, or academia. That contribution instead goes to foreign countries. This is especially critical for developing nations that desperately need innovation and leadership as their countries face political instability, poverty, and resource shortages. The moral thing for a developed country to do, instead of taking human capital from other countries, would be to invest in a developing nation to improve their systems of government, their economies, and their educational opportunities. That way, the problems that these countries face could be solved from within and there would be less need for flight to other countries. As the saying goes: “Give a man a fish and he eats for a day, teach a man to fish and he eats forever.” In this case, giving a fish could be equated to awarding a visa, and teaching to fish to equipping with tools to fix one’s own country.

Fine also believes that a government that does not rightfully occupy its land cannot morally control those who can and cannot enter, as the government is there illegally in the first place. Thus, conquered land cannot be justly governed. Wellman generally agrees with this point. The implication of Fine’s argument, though not explicitly stated, is that America exists on lands stolen from Native American Indians and thus no government of white people can have any say over the control of America’s borders.

The idea that the Natives lived in peace and harmony before the advent of the European is a myth and is not grounded in historical evidence. In fact, modern anthropological studies suggest the opposite. According to the Science journal, pre-Columbian America was a violent and brutal place. The Crow Creek Massacre of 1325 was a mass slaughter and scalping of over 500 men and children in a singular event in modern-day South Dakota, perpetrated by the Mandan and Hidatsa tribes against the Arikara tribe. Heather Pringle writes for Science, “for years, with prehistoric America seen as a peaceful place, Crow Creek was generally thought to be an extreme and isolated case of violence. Now, new analyses suggest that this massacre was merely one act in a long-running life-and-death struggle between Crow Creek and the ancestors of two neighboring tribes: the historic Mandan and Hidatsa.”

When English colonists took land from Native peoples, the chances are that the same plot of land was taken from another tribe a generation prior, and so on. In this sense, the English were just the winning tribe. The point of this argument is that ownership of American lands was contentious even prior to European arrival, so to say that the US government has no right to govern conquered land but then to grant a certain tribe ‘rightful’ ownership over land is to deny the right of conquest and then affirm it. There is no logical consistency in such an argument. What makes the Mandan’s and Hidatsa’s claim to Arikara land more valid than the Europeans’ claim? What makes the Arikara’s claim to that land any more valid than the claim of the tribe they conquered it from? The reality of human history is that all land at one point was conquered by force and has violently changed hands. This does not make conquest morally justified, but it does render Fine’s implication that America wrongfully occupies land that was once rightfully occupied as absurd. American lands have never been rightfully owned without conquest.

However, the current American government does have legitimate claim to the land it occupies, due to its actions after conquest, in accordance with the established legal doctrine of accession. The land, under the Natives, was largely undeveloped. Agriculture was limited and there were few permanent structures. The American land of today has an abundance of permanent structures and land development. According to the Harvard Law Review, in an article on accession (that is, legally obtaining property from another owner without consent) and property ownership, “The disparity-of-value rule awards ownership to the party that contributes the most value to the final product, which roughly tracks intuitions of desert.” This means that, because the European civilization on American land has contributed more to the final product of modern America than Native civilizations had, the current American government is legitimate. In this way, Fine’s implication in the case of America is invalid and America does in fact have a right to restrict its borders. Additionally, on a more technical point, Native Americans never formally claimed ownership to land by way of establishing governments, but rather occupied the land without a concept of property in the same way that modern legal theory sees property.

Wellman and Fine attempt to approach the issue of immigration from the consensus of the freedom of association. I disregard the freedom of association as irrelevant to the immigration debate altogether, and rather justify border restrictions through pragmatic utilitarian calculation and a moral imperative to conserve global cultures. In debating this issue, it is important to detach oneself from impassioned, anecdotal, and personal arguments and instead to evaluate the facts and truths of the issue in order to find a reasonable and effective solution.

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Works Cited

“Accession on the Frontiers of Property,” Harvard Law Review 2381, May 2020, 133. Accessed 5 December 2020. https://harvardlawreview.org/2020/05/accession-on-the-frontiers-of-property/.

Fine, Sarah, “Freedom of Association Is Not the Answer,” Ethics 120, January 2010, 338-56.

“Mayflower Compact : 1620,” Avalon Project, Yale Law School, 2008. Accessed 6 December 2020. https://avalon.law.yale.edu/17th_century/mayflower.asp.

Pringle, Heather, “Crow Creek’s Revenge,” Science 279, March 1998, 2039. Accessed 5 December 2020. https://science.sciencemag.org/content/279/5359/2039.

Wellman, Christopher Heath, “Immigration and Freedom of Association,” Ethics 119, October 2008, 109-41.