Social Justice, Book/Article Reviews

The Marginal Cases Argument for Open Immigration

Christopher Freiman has a paper coming out called “The Marginal Cases Argument for Open Immigration.” I’ll briefly summarize it here. I probably have lots of typos. Oh well.

Freiman wants to argue for open borders using a move Peter Singer made when discussing animal rights. Singer says to readers (this is a paraphrase, not a real quotation): “Okay, so you believe it’s permissible to eat animals and perform medical experiments on them, but not permissible to eat humans or perform experiments on them (without their consent). Fine. Give me some feature F that humans have, which non-human animals lack, that plausibly explains why it’s prohibited to eat and perform experiments on one but not the other. And you can’t just say F = is human, because that’s the very thing we’re asking about. What it is about being human that makes it wrong to treat them the way everyone thinks it’s okay to treat non-human animals?”

The reader/hypothetical dialogue partner then offers a range of possible Fs, such as “possesses free will” or “is a moral agent” or “has autonomy” or “has the capacity to reason” or “has the potential to develop the capacity to reason”.

But for every putative F that people identify, Singer responds, “Okay, but here’s the problem for your putative explanation. I can point to a bunch of non-human animals that have more F than a bunch of humans. For instance, this cow might have more autonomy or capacity to reason than this mentally disabled person. This chimp might have more potential to develop the capacity to reason than this terminally ill toddler. So, if F–the explanation you supplied–really were what explains why we can eat or perform certain invasive medical experiments on non-human animals, then you ought to agree that I can eat or perform those invasive experiments on these people.” So, it seems, Singer catches people in a trap. They must either bite the bullet and say, “Yes, eat the mentally disabled person if you so desire,” or admit that F isn’t really a good explanation of the difference. After all the plausible Fs run out, Singer thinks you’re stuck admitting that maybe we shouldn’t eat animals or perform certain invasive experiments on them.

Freiman makes a similar move. Freiman says to readers (again, a paraphrase, not a real quotation): “Okay, so you believe it’s permissible to prohibit foreigners from moving to your country (even when there’s someone who wants to hire them or let them lease a house), but it’s not permissible to deport current citizens. Fine. Give me some feature F that citizens have, which non-citizens lack, that plausibly explains why it’s permissible to exclude one but not to deport the other. Or give me some feature G that non-citizens have, but citizens lack, that explains why it’s permissible to exclude foreigners but not deport citizens. Let’s confine ourselves to cases where the harm done to the foreigner by excluding him is equal to the harm done to the citizen by deporting her. And, no, you can’t just say F = is a citizen or is a member of the social contract, or that G = is a foreigner or is not a member of the social contract, because that’s the very thing we’re asking about. What is it about natively-born people that they count as having certain rights while foreign-born people don’t?”

The reader/hypothetical dialogue partner then offers a range of possible Fs, such as “enhances our culture” or “speaks our language” or “improves our wealth” or “is a net taxpayer.” Or the reader offers a range of possible Gs, such as “will be a net tax consumer” or “may depress domestic wages” or “belongs to a religious group more likely than average to produce Charlie Hebdo-type attacks” or “might sully our culture” or “belongs to a demographic more likely to commit crime” or whatnot.

For every such putative F or G that people offer, Frieman responds, “Here’s the problem for your putative explanation. I can point to a bunch of foreigners who have more of good thing F than most or many citizens. I can point to a bunch of foreigners that have less of bad thing G than many or most citizens. Etc. So, for instance, if “might commit crime” is a reason to exclude Mexicans, then we should deport most poor domestic-born citizens, regardless of race, since as a matter of demonstrable fact, they are statistically more likely to commit crime then Mexican-immigrants. If “they might consume more taxes than they pay” is a reason to exclude Haitians, isn’t it also a reason to deport American citizens who are likely to be net tax-consumers? If “will vote for religious rules as law” is a reason to exclude Arabs, isn’t it also a reason to deport many conservative Christians? “They might vote badly” is a reason to deport almost every American. “They might consume too much welfare” is a reason to deport all these damn baby-boomers who wrongfully chose not to save enough for their retirements. And so on.

So, Freiman catches people in a trap. They must either bite the bullet and say, “Yes, let’s deport all white people from Mississippi born to families with incomes lower than…,” or they must admit that F and G weren’t good grounds for treating foreigners and domestic-citizens differently. After all the plausible Fs and Gs run out, Freiman thinks you’re stuck admitting that we shouldn’t exclude foreigners.

  • jtkennedy

    1. Can’t the disputants bite the bullets and say, “Okay, you’ve convinced me it’s sometimes acceptable to eat people and deport citizens?”

    • Jason Brennan

      Yes. It’s just a consistency argument.

  • Sean II

    Both arguments are equally tidy, and yet somehow I suspect that around here {advocates of open borders} vastly > {vegetarians against medical research}.

    Something to think about next time you’re on a runaway trolley eating steak served by an immigrant while you try to figure out whether uninvited photons count as interpersonal aggression.

    • Jameson Graber

      I gotta give you props for this comment, even as someone who is an open borders advocate.

      Honestly, this argument doesn’t do much for me, other than make me want to deport baby boomers.

      • Sean II

        If we act quickly, we can offload those boomers before they accomplish their fiendish plot to destroy 3x all the value they ever created in end-of-life care.

        But upon what enemy would we wish such a burden?

  • It may not be philosophically sound as an argument, but as a practical matter it seem that this is just a standard in-group/out-group situation: members of the in-group (“citizens”) are presumed to have a right to remain part of the in-group, members of the out-group (“non-citizens”) have no automatic right to become part of the in-group. In the case of US citizenship this presume “right to remain a citizen” is so strong that it can’t be revoked in the case of natural-born citizens. Naturalized US citizens *can* have their citizenship revoked; this is presumably a reflection of the fact that they are “in-group members by invitation” and thus remain to some extent “on probation” as far as other in-group members are concerned.

  • For what it’s worth, I made a similar argument at Open Borders.

  • Jameson Graber

    OK, you’ve convinced me we need to start deporting old people.

    • j r

      Not a bad idea; although at some point I don’t think we’d need to resort to deportation.

      A trade of retired older Americans living on fixed pensions for working age Latin Americans is pretty close to a win-win in my book. Of course my book doesn’t have any de facto fears about who “real Americans” are or ought to be.

  • j r

    So, Freiman catches people in a trap.

    Sure, but it’s a pretty flimsy trap. I eat animals and don’t eat human beings for the simple reason that human beings occupy a distinct place in my metaphysics and other animals don’t. You can try to argue me out of that world view with linguistic tricks, but you’re unlikely to be successful unless you can offer me a convincing replacement for my current world view.

    If pushed, I might elaborate further and say that I choose to honor moral obligations to other human beings, because I believe that human beings are likely to honor similar moral obligations to me in ways that most animals will not. This would also explain why I have no problem eating pigs, chickens and cows, but have no interest in eating dogs, dolphins and great apes. There is a marginal case to be made, but Singer’s argument is unpersuasive to anyone not bound by the formal logic of analytic philosophy.

    I am pretty much an open borders advocate, but you can easily make a similar claim about citizenship. There’s nothing magical about citizenship that morally elevates one person over another, but we are necessarily limited in our ability to honor obligations to other people. The result is that we end up with some arrangement of concentric spheres of fealty. I am responsible for my children in ways that I am not responsible for yours. I have a relationship with my close friends and family that I don’t have with strangers. None of this is because those other children and other people are any less human, but simply because that is not the relationship that I have with them. Extending this metaphor to citizenship is not a huge leap (even if it is one that I’m not entirely enthused about).

    If this is a trap, it doesn’t exactly take Houdini to break out of it. So, “Ta da!”

    • Yes, but this merely tees-up the argument that open borders is a very low-cost way of greatly improving the lives of others at minimal personal expense. Because the gains from open borders are so large and the costs so minimal, even your response to the “why don’t we deport people” argument eventually implies that not doing so – and allowing more immigration – is morally sound policy.

      So even if the argument is a weak initial “trap,” it sets up the primary argument perfectly.

      • j r

        I agree that when you add up the net economic, political and cultural benefits of open immigration, they greatly outweigh the net economic, political and cultural befits of a nativist or even semi-closed border immigration policy. I just think that it is largely an empirical argument to make, not a moral one.

        There is nothing morally wrong with categorizing people into citizen and non-citizen categories, so long as your treatment of non-citizens is not morally wrong. And barring someone from citizenship is not a de facto moral wrong anymore than not adopting every starving child in the world.

        • I definitely agree with regard to citizenship. The matter changes slightly for me if we talk about residency rather than outright citizenship.

        • Sean II

          You’ve inadvertently spoiled the party, JR.

          If the question is empirical, that argues for a very gradual deviation from the status quo. We do a little of this, we see what happens. We run a little pilot program here, we study the resulting case. Inevitably this means some evidence for you, and some against. You’ll have to contend with Malmo. I’ll have to contend with early 1900s New York. And after awhile maybe we’ll find something to break the tie.

          But I’m not hearing that from anyone on your side. The people on team Open don’t seem terribly interested in gathering more empirical evidence. Their idea of empiricism often turns out to be something like “Bryan Caplan told me that in opinion polls the typical immigrant is a moderate Democrat, so there.”

          That’s “empirical” in roughly the same sense that Ho-Ho’s are a “pastry”.

      • Gene Callahan

        So, Freiman spent a lot of time making a very bad argument in order to “set up” the real argument? Why not just make the real argument?

        • No, Gene, I’m not making any claims about Freiman’s intent.

          • Gene Callahan


  • David Owen

    What if F is the property of one’s individual autonomy and welfare being intrinsically linked to the collective autonomy and welfare of the state? Then the price of excluding foreigners is that we are willing to deport people whose actions disavow this link – for example, domestic terrorists – ok but doesn’t get anywhere near being a open immigration argument, plenty of states trying to do this now (cf. EUDO Citizenship date on return of banishment)

  • Jameson Graber

    A more serious reply than my last comment:
    I appreciate almost none of Peter Singer’s arguments. He insists on not seeing the difference between anything–which I suppose is what you get when you take a hard line materialist view of the universe. Refusing to see the difference on a metaphysical level between a cow and a human is not going to win many hearts and minds–well, it might when you a few rationalist minds, but not many hearts.

    Similarly, even as an open borders advocate, I think the difference between citizen and non-citizen is meaningful. You’re not going to win anything by trying to treat it as some arbitrary fiction we made up. It’s only something we made up in the same way that civilization, language, and morals are things we “made up.”

    We don’t deport citizens because citizenship is a binding promise on government. (Of course, we can revoke citizenship if the cause is severe enough.) Now, I don’t think we should deport non-citizens either, but I think that’s because humans–all humans–are special (sacred, if you will) and ought to be treated with a certain basic respect that includes not forcing them out of homes they have established for themselves, even when they aren’t citizens. But I think trying to argue on the basis that citizens and non-citizens are interchangeable is not going to work, and perhaps there might just be a reason for that.

    If there’s one thing I took away from reading Hayek, it’s that when a lot of people cling to a certain moral category, it’s worth reflecting on why that category is so important, rather than making the rationalist presumption that everyone just needs to stop being so inconsistent.

  • Gene Callahan

    So, does someone out there take Friedman’s argument seriously?! Because this is laughable.

    • Sean II

      As I said above: the argument is fine and tidy and quite as good as all the other deductively sound moral arguments which yield absurd conclusions. Like Singer’s for example. Or like the argument against white lying, which none of us can refute and all of us ignore.

      Because ignore it is what you should do when confronted with a moral argument that yields an absurd conclusion.

      This is easily seen if you just look back a bit. Athens had no moral reason not to allow unlimited Persian immigration. None. Not one decent argument in that city of immortal arguers. To have a border around Athens was clearly arbitrary. To enforce it was clearly cruel and undeniably violent.

      Come to think of it, homo sapiens had no moral reason not to welcome homo erectus into their territory (or the other way around). To do so was clearly arbitrary, cruel, and violent.

      Indeed, the absurdity of this whole debate can be seen by imagining a chapter in a history book which begins “The Freimanite civilization was distinguished by its refusal to indulge arbitrary national boundaries or concepts of citizenism. It reigned on the Anatolian peninsula from approximately 1500bc to 1499bc, most likely a bit less. The exact chronology is still disputed by historians.”

  • Chris Freiman

    First of all, thanks to Jason for such a nice summary of my paper. And thanks to all of the commentators for their thoughts. I haven’t posted in a while, but I figure that now is a good time to start up again.

    Regarding the citizen/non-citizen distinction, what you don’t want to say is that citizens are morally special simply because they fall on one side of a line (the border) rather than another. Being located on one side of a line rather than another is not morally important in itself. Once you start listing potentially morally relevant qualities–maybe it is that a citizen pays taxes but a non-citizen doesn’t–you run straight into the marginal cases argument. If paying taxes is what is morally important, does that mean that we can deport citizens who don’t pay taxes?

    • Gene Callahan

      And certainly we don’t want to say that, for instance, we have an obligation to feed children just because they are “our” children, simply because they are located on one side some “family line” rather than another!

      In the very phrasing “simply because they fall on one side of a line (the border) rather than another” in fact, the entire argument here! You begin by denying that a nation is or should be any sort of community whose members have special obligations to each other in the way you characterize the relationship, and at the end you “reach” the conclusion that a nation is not any sort of community whose members have special obligations to each other they do not have to others.

      And to make a sausage, start with some sausage…

    • Gene Callahan

      And: “And, no, you can’t just say F = is a citizen or is a member of the
      social contract, or that G = is a foreigner or is not a member of the
      social contract, because that’s the very thing we’re asking about.”

      Or, to paraphrase:

      “OK, so let me first ban from consideration the very reason that one of these things is permissible and the other not, and then see what those who want to make this distinction have left to say!”

    • j r

      Being located on one side of a line rather than another is not morally important in itself.

      Why not? Or rather, “not morally important in itself” can certainly give rise to certain moral obligations.

      Being born your child as opposed to my child is not morally important in itself, but it’s a distinction that has moral implications.

      • Chris Freiman

        Think of it this way: suppose I am on a sidewalk and draw a line with a piece of chalk. I then proceed to step across that line. Has my moral status changed? I don’t think so. Of course, being on one side of the border rather than another might give rise to morally relevant qualities in many cases. The point is simply that not everyone on that side (that is, not all citizens) will possess the morally relevant quality, in which case standard arguments for excluding immigrants will imply that these citizens are also eligible for exclusion.

        • j r

          OK, but no one is arguing that a line, or a border, creates a moral distinction between two people.

          Rather, the border is simply the recognition of an existing distinction between citizen and non-citizen, and while there is no moral distinction between the two, there are moral distinctions in the relationships and mutual obligations that category creates.

    • David Owen

      The territorial boundary and civic boundary are different though so no need to say citizens special because fall one side of border, the argument could be reframed thus:
      a) expatriate citizen has a right to re-entry, non-citizen has no right of entry – what quality distinguishes expat citizen from non-citizen? (this also gets us away from the problematic assumption that non-admissions and deportation are normatively equivalent)
      but then the argument is open to the claim that the relevant property is just whatever entitles people to citizenship on one’s favoured account where that is ‘a range property’ (e.g., having had one’s identity coercively shaped by education/upbringing in the state, having resided in state for x years, the linkage of individual freedom to collective freedom of polity, etc.)

      I assume I must be missing something here?

    • brandonberg

      I can think of two counterarguments:

      1. Except in the case of refugees (to whom the government gives special consideration) deportation is more harmful than exclusion. Native citizens are adapted to and invested in life in the US in ways in which foreigners are not. They may only speak English, they have family and friends here, etc. This may not be true in absolutely every case, but it’s a pretty solid basis for a general rule.

      2. Is deportation even an option? They have to go somewhere. What country is going to take our rejects? I’m not, in principle, opposed to trading our deadbeats for the best and brightest Mexicans, but why would the Mexican government take that deal?

  • Dan

    It’s dialectically delicate, but it strikes me as question-begging to rule out “being a citizen” as a property that relevantly grounds the differences in rights. (Similarly in the Singer case — “being a human” seems a pretty good reason to not eat something to me). There’s absolutely nothing inconsistent about someone who holds that view. Sure, you might find the position unsatisfying unless the relevance of citizenship is explained; but that’s a different criticism altogether.

  • CbyN

    A similar thought experiment: consider an alien race coming to our planet, demonstrating orders of magnitude greater cognitive functioning where, while we cannot understand its depths, we can at least agree that it exceeds ours by far greater a gap than what currently exists between humans and Earth animals we commonly eat. In their estimation, we are mere marginal improvements over bacteria.

    They want to eat us. What would we argue, not to them (which would presumably involve lots of pleading), but to ourselves in justifying why we should be spared the misfortune?

    Now, instead of wanting to eat us, they just want to keep us away from them. They have access to economic and well-being opportunities beyond our wildest dreams. Would we argue to them that they have a moral obligation to share it with us?

  • stevenjohnson2

    Well, Freiman is wrong in phrasing the loss of citizenship solely as deportation, and selective in setting the bar at total loss. It is extremely common to deprive native-born people of full citizenship, which means that the anti-immigrant position is at least consistent. Also, since there is no obvious place to deport native-born people to in the first place, the deportation question is pretty irrelevant. Lastly, no one so far as I know wants to forbid any immigration, so it is not a case of one group being possessed of rights forbidden to another group.

  • Betty Tracy

    We deport illegal immigrants because they broke the law to come here. This act shows that no matter what they might benefit our country, their ultimate effect is to break down our very government. If you don’t like the law, (and frankly, I don’t like our immigration laws and think they need to be drastically changed to allow more to come here legally) than change them. But don’t undermine all our laws by ignoring the bad ones. This will only result in the collapse of society.

    Should we then deport criminals? Sure, if we could find anyone to take them:-)

    Humans are created in the image of God and have souls. Animals do not. intelligence, compassion, etc. is irrelevant.

    If you remove God, though, you do remove the uniqueness of humanity, removing the moral prohibition to all kinds of murder, abuse, tyranny, etc. You make no difference between animals and humans allowing humans to act and treat each other as animals. You remove all civility.

    Our very freedoms, those freedoms we Libertarians are trying to restore, are based on the dignity and free will we have as image bearers of God. Without that image, we have nothing, no distinction from animals at all except the ability make bigger weapons.

    The civility and freedom we all enjoy today is directly based on 2000 years of society moving towards the Christian God. Now that we are moving away from Him, we can expect the return of barbarity.

    • William

      Betty seems to have a good understanding of what’s happening in our society right now.
      Unfortunately, what we have to look forward to is not all that exciting.

      “Our very freedoms, those freedoms Libertarians are trying to
      restore, are based on the dignity and free will we have as image bearers
      of God. Without that image, we have nothing, no distinction from
      animals at all except the ability make bigger weapons.”

      “Civility and freedom we all enjoy today is directly based on 2000 years
      of society moving towards the Christian God. Now that we are moving away
      from Him, we can expect the return of barbarity.”

  • LLC

    Open immigration is, to me, economically unsupportable (especially if migrants are given government benefits). Plus, there aren’t enough jobs for the people already here, and there will be relatively fewer in the future. And, while we can amuse ourselves by crafting arguments which bear up to standards of Aristotelian logic, to make decisions like who is and is not a citizen, and what should be done about each condition, on purely moral questions is to open an endless can of worms. Who gets to determine what is moral? Do the beneficiaries of the next election cycle get to change some or all of this according to their particular religious
    or philosophical dictates? It would all be just too damned messy. And that’s
    probably why we do it like we do it.

  • Jerome Bigge

    Human societies throughout history have been “territorial”. Immigrants are generally considered to be “outsiders”. Even hunter-gather societies have their “territory”. Many animals are also territorial. Early societies kept dogs for their own territorial instincts.

  • Kernel

    How long have you been a vegetarian?

  • Guest

    “They might consume too much welfare” is a reason to deport all these damn baby-boomers who wrongfully chose not to save enough for their retirements.

    I would prefer that. But deporting net welfare consumers is not politically possible; reducing the intake of new ones is (for now).

    The status quo is actually the ideal situation. Immigrants come here, work, and contribute cultural diversity, but they aren’t eligible for all current benefits or to vote for them in all states. If the path to citizenship were made easier, they’d get more benefits and vote for more. If borders are tightened, you miss out on work and diversity.

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  • Bob

    Yes, but in reality foreigners can’t vote so nobody cares about them.
    BTW, what is libertarian view on democracy?