The Legitimate State’s Right to Control Immigration

A quick note before beginning: I wrote this as a member of an extant state, in the real world. I didn’t waste my time drawing up a libertarian argument for the way things should be, and especially not under ideal conditions. So before you get all, “Oh, this guy is a statist…” I would point you to the fact that we do, in fact, live in a state. As such, we must circumscribe the scope and purpose of our inquiry.

Yours in Contemplation,
Kyle W. Richardson, J.D.



To everyone in the fully developed Western world it seems clear that where they were born plays a prominent role in determining their life prospects. Education, careers, quality of life; all of these things are very nearly taken for granted to those of us who were lucky enough to be born in these developed countries. But it is equally apparent that not all states are equal. In non-developed states, the possibilities for education, satisfying careers, and a decent quality of life are available to only the wealthiest of its citizens, leaving the most unfortunate to worry about whether they will have even the basic necessities of life, like food, water, and shelter. It seems like the miserable citizens of these states have gotten a “raw deal;” God, fate, or bad luck has seen fit to have these people born in states that are either ill-equipped care for them, or they are subjects to a neglectful or oppressive ruling class. Naturally, those who are capable will try to ameliorate their plight by moving to where the possibility of improvement exists. But what are the implications when the opportunities are on the other side of a sovereign border of another state? Does that state have the right to turn away the “refugee of circumstance?” Some insist that it is not merely unjust, but actually immoral to do so. Still others, such as Christopher Heath Wellman, take a different view. In Immigration and Freedom of Association, Wellman argues that legitimate states have a prima facie right to close their borders in any manner they see fit. This is a tough pill for some to swallow, but it is the goal of this paper to demonstrate that Wellman has successfully argued that legitimate, self-determining states have a right to choose with whom to associate, or reject association.




            Wellman begins by acknowledging two of the most powerful, and intuitively appealing arguments against closed borders; those of the egalitarian, and of the libertarian. The former appeals to the remediation of morally arbitrary circumstances of birthplace that have a negative effect on people’s life prospects, while the latter focuses on the rights of individuals as being superior to the rights of a state, specifically in controlling associations.


The egalitarian case for open borders appeals to two forms of egalitarianism; “luck egalitarianism,” and relational equality. Proponents of luck egalitarianism argue simply that it is wrong that people born in different countries should have such drastically different life prospects, and that as a matter of moral rectitude, states should not be permitted to have closed borders so that people may remediate their bad luck by moving to where opportunities are more abundant. Egalitarian Joseph Carens goes so far as to say, “Citizenship in Western liberal democracies is the modern equivalent to feudal privilege…” (Joseph Carens, Aliens and Citizens. P. 252.) The implication here is that “lucky” individuals, having not done anything to deserve such good fortune should not endeavor to keep their “privileges” to themselves, and that all of humanity is equally entitled to a “fair shake.” To the luck egalitarian, there is an imperative to remedy bad luck, and in this particular case, it requires open borders.


Wellman responds succinctly, and effectively. To paraphrase, he rebuts the luck egalitarian by saying, “So what?” The fact people can have bad luck as a result of where nature/fate put them (as opposed to some unjust social system) is not a sufficient condition to generate any obligation to remedy all cases of “natural” bad luck. This is not to say that no moral duty exists to relieve the plight of the less fortunate, but he is saying that justifying the duty on the grounds of luck is unsuccessful. He writes, “…I suggest that the most compelling understanding of equality does not require us to guarantee that no one’s life prospects are affected by matters of luck; more minimally, equality demands that we address those inequalities that render people vulnerable to oppressive relationships.” (Wellman, Immigration. P. 120.) This leads us to the other form of egalitarianism based upon “relation equality.”


Here Wellman notes that this is the more cogent approach for the open-borders crowd, at least as it pertains to those who make their argument based on egalitarianism. To relational egalitarians, the issue is not about fairly divvying up resources; rather, it is about insuring that equitable relationships exist such that no one is prevented from obtaining resources due to oppression, or neglect. To achieve relational equality, everyone must have equal access to resources that will enrich their lives; this is achieved through open borders. This view rightly acknowledges that all people are coequal moral beings, and as such, should be treated equally. But this is not what Wellman is challenging. What Wellman challenges is the inference that the people of the more fortunate state can be justifiably imposed upon and forced to cede their freedom of association in the name of relational equality. Wellman points out that the very fact that we are all coequal moral individuals with the right to self-determination, less fortunate folks do not have the right to demand that other’s rights be abridged, even if it is to remedy some inequality.


In either case, Wellman argues that the samaritan, restitutive, and egalitarian duties we have to the less fortunate may (and perhaps should) be discharged by means other than open borders, including, but certainly not limited to, sending aid abroad, helping develop inferior governments to better serve their people, or forcing rogue states to halt oppressive practices.


The next case for open borders comes from an appeal to libertarianism. As understood by Wellman, the motivation here is two-fold, advanced by claims of property rights, and to freedom of movement. In the former case, an individual’s property rights trump those of the state to the extent that an individual has a right to invite whomever he wishes onto his property, and that that invitee may stay there as long as the property owner wishes. The latter argues the supremacy of a foreigner’s right to freedom of movement compared to a state’s right to close it borders. In both cases, the flaw in their reasoning is glaringly self-evident; they assume that these rights are absolute and without qualification.

The argument based on property rights is assailed by Wellman straightforwardly; “…the crucial point here is that one cannot consistently insist that property rights are totally unlimited without committing oneself to anarchism. This is because political states are functionally incompatible with extending unlimited dominion to their constituents.” (Wellman, Immigration. P. 131.) In Wellman’s mind, the anarchy entailed in unlimited individual property rights puts the argument to bed immediately because of the conclusion’s danger, and the implications to the rest of the group.


Moving on to an individual’s right to freedom of movement, Wellman cleverly invokes an intuitive, and nearly unassailable rationale; “…I do not think that the right to freedom of movement is perfectly general and absolute. My right to freedom of movement does not entitle me to enter your house without your permission… so why think that this right gives me a valid claim to enter a foreign country without that country’s permission?” (Wellman, Immigration. P. 135.) The inference here is that just as homeowner has the prima facie right (requiring no further justification) to control who enters his home, so too do states possess this prima facie right. However, Wellman suggests that a resolution to the conflict between individual freedom of movement, and a state’s prima facie right to control its associations (and therefore its borders) can be achieved by instituting more liberal rules for granting duly limited sojourns into its territory.


Despite these objections, Wellman maintains that legitimate states (those that aim at the widest fulfillment of its demos’ rights) have the prima facie right to control its borders because of the inherent right to self-determination, of which, freedom of association/disassociation is a part.

Yeah. These are the types of people that open borders policies benefit.

Yeah. These are the types of people that open borders policies benefit.




Now that we know the lay of the argumentative land, we can move on to an evaluation aimed at gauging success. Before doing so, however, we must clarify the approach he takes. “… Let me stress that I seek to defend a deontological conclusion about how legitimate states are entitled to act…” (Wellman, Immigration. P. 116.) By invoking the deontological nature of his position, he is trying to make clear that he defends the view that states necessarily have this right, and that no further justification is necessary. This is in contrast to a teleological approach that would focus on the justifications of some right/action based on its consequences. In short, he is arguing for what legitimate states have the right to do, not what they should do. Instead, Wellman digs in, states that “so-and-so” is the case, and let the critics try to prove that it is not so.


The egalitarian approach attempts to demonstrate that the prima facie right to control one’s border is overruled by superior moral claims. This specious reasoning is easily defeated by the highly plausibly, and potentially superior solution to the problem that consists in sending aid abroad, whether by direct aid, or assistance in remediating instances of relational inequality. Further, since this approach does not strictly focus on the issue of rights, as opposed to moral imperatives, the egalitarian claims appear impotent against Wellman’s argument. For that reason, we will focus on the more plausible argument against him.


If all people have fully equal claims to rights, then the libertarian case for open borders has real potential to succeed. After all, the rights one has to make decisions about what to do or not do on his property is entirely his to make, right? Wrong. Although this author, and Wellman, is very sympathetic to the rights of individuals, this position cannot to be adhered to at its logical extreme, which is necessary to defend its use as justification for open-borders. The extreme conclusion here relies on the assertion that individual property rights are perfectly general, and absolute, which, as Wellman rightly points out, “…one cannot consistently insist that property rights are totally unlimited without committing oneself to anarchism. This is because political states are functionally incompatible with extending unlimited dominion to their constituents.” (Wellman, Immigration. P. 131.) It would be impossible to have a well-functioning political society if the members of that society as a whole did not duly curtail some of the freedoms its members may have had in a state of nature; statism necessarily restricts some liberties (within due bounds) in exchange for some other benefits the state provides; which brings us to another problem. If these “guests” were to stay indefinitely, then their requisite inclusion into the political system as full members puts an undue burden on the other members of the state. Lurking behind this argument is the notion that individual property rights are absolute because the decisions made on that property are self-affecting. This is a mistake. The inclusion of these foreigners can, by virtue of its substantial cost, affect all other members of the state, and as a result, the state has the right to decide whom to extend an invitation of membership. Wellman’s answer, pursuant to common sense, suggests that the property owner does have the right to invite foreigners onto his property, but it must only be for a limited time so as to not invite the guest to full participation into the society. This restricts the costs involved to the state as a whole. The mitigated cost of receiving such immigrants temporarily may help spur the desired liberalization of visitation and guest worker programs that encourage interstate travel, and therefore increase the freedom that those individuals could enjoy. Let us observe how Wellman revises the libertarian argument to better suit his position:


  1. Individuals have an absolute and general property rights
  2. The generality of these rights allows for the owner to invite whomever he wishes onto his property
  3. The absolute nature of these individual rights are superior to those of the state
  4. State controlled borders unduly infringe on individual property rights
  5. The remedy is open borders
  6. But opening the borders without restriction puts an unjust, and right-infringing burden on the members of the state
  7. So, open borders is not a solution to resolving the issue of individual property rights


Similar to the argument based on individual property rights is the argument that border restrictions unduly curtail an individual’s freedom of movement. For the same reason that I have to moral claim to enter your home without permission, it is also the case that foreigners have no justifiable moral claim to enter a state without permission. Intuitively, this makes absolute sense. But an opponent could say, “A superior moral claim to uninvited access to one’s home by another can be grounded in necessity. Say, for example, that a killer is chasing a pregnant woman and will surely kill her unless she finds refuge. Seeing an open front door, it is morally permissible for her to enter that home, without permission, to save her life.” This analogy can be extended to those who wish to enter a state without permission, but it would be fallacious to do so. The key, according to Wellman, is not what states should do to maximize moral utility, happiness, or anything else; the focus is simply that the state (as well as the owner of the house) has the right to deny entry to anyone based on their right to freely associate or disassociate as they please.


Regardless of the consequences of such an approach, it is important to note that Wellman defends only what a state has a right to do, not what it should do. It has been said many times throughout this paper that Wellman’s argument rests entirely on the deontological view that legitimate states have the right to control their borders because of a freedom to associate/disassociate, which is a part of that state’s right to self-determination. The arguments presented in favor of open borders do not necessarily claim that this is not so, they merely try to show that moral claims outweigh a states prima facie rights of border control. It is this author’s judgment that Wellman points out the fallacious reasoning upon which these claims are made, and as such, successfully defends his position.

Remember, it is only a group of "good, honest, and hardworking people" trying to provide for their families...

Remember, it is only a group of “good, honest, and hardworking people” trying to provide for their families…

About facedownphilosophy

Proud recipient of the "Award for Outstanding Excellence in the Field of Unrivaled Superiority"
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3 Responses to The Legitimate State’s Right to Control Immigration

  1. Pingback: [Ilya Somin] Why a nation is not like a house or a club – and why the difference matters for debates over immigration – Ben Lee

  2. Pingback: Why a nation is not like a house or a club – and why the difference matters for debates over immigration « Attack the System

  3. Pingback: 12. Ilya Somin on why a country is not like a house – Open Borders 101

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