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Thursday, March 10, 2016

Immigration and Colorblindness

Birthplace, Like Race, Does Not Determine One's Moral Worth

In a famous 1855 letter, Abraham Lincoln drew a connection between racism and hostility towards immigrants, then epitomized by the nativist Know-Nothing movement:

I am not a Know-Nothing. That is certain. How could I be? How can any one who abhors the oppression of negroes, be in favor or degrading classes of white people? Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that ‘all men are created equal.’ We now practically read it ‘all men are created equal, except negroes.’

When the Know-Nothings get control, it will read ‘all men are created equal, except negroes, and foreigners, and Catholics.’ When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty — to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocracy [sic].

Lincoln understood the similarity between racial prejudice against blacks and xenophobic hostility to immigrants. That is one of the reasons why he took a favorable view of immigration throughout his career, and opposed efforts to exclude potential immigrants from the US or otherwise discriminate against them. So too did a good many other prominent 19th century opponents of slavery and racial discrimination, such as Frederick Douglass.

Sadly, this passage from Lincoln’s letter has obvious relevance to our own time. A few minor edits can easily bring it up to date:

“When Trump gets control, it will read ‘all men are created equal, except Mexicans, and foreigners, and Muslims.’”

As in the 1850s, the problem is not limited to just a single demagogue and his most committed followers. Thanks in part to the popularity of Trump’s anti-immigrant rhetoric among many Republican voters, other GOP presidential contenders have reversed their previous more open positions on immigration, and moved closer to Trump, including Ted Cruz and Marco Rubio.

When it comes to immigration, much of the Party of Lincoln has abandoned his principles.

I. How Discrimination Based on Place of Birth is Similar to Racial and Ethnic Discrimination.

Even as many of them favor ratcheting up immigration restrictions, most conservatives continue to profess a commitment to color-blindness: the idea that government should not discriminate on the basis of race or ethnicity, even where it might be convenient for it to do so. Many who are not conservative find that ideal appealing, as well.

Why? Primarily because race and ethnicity are morally irrelevant characteristics that people have no control over. Whether you are black, Asian, white, or Hispanic says nothing about your moral worth, or what rights you should have. Most Americans 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 equally true of place of birth. Whether you were born in the US, Mexico, or China is also a morally arbitrary characteristic that you have no control over, and which should not determine how much freedom you are entitled to. Place of birth is no more indicative of the content of your character than race of birth.

Obviously, place of birth might sometimes correlate with morally relevant characteristics, even though it does not cause them. People born in one nation may, among other things, be more likely to become criminals or terrorists than those born in another. Such claims are often overblown. For example, immigrants actually have much lower violent crime rates than native-born citizens. Still, such negative statistical generalizations about particular immigrant groups may sometimes be accurate.

But the same is true of different racial and ethnic groups. Young black males, on average, have higher crime rates than members of many other ethnic groups. White males are disproportionately likely to become domestic terrorists. It does not follow, however, that we would be justified in imposing severe restrictions on the freedom of blacks or whites as a group.

In both cases, it would be deeply unjust to restrict people’s freedom merely because they happen to be members of the same racial or ethnic group as others who have committed various crimes and misdeeds. The same point applies to potential immigrant groups singled out for exclusion merely because others born in the same place have a disproportionate propensity to commit various wrongs.

The government should, of course, apprehend and punish violent criminals, terrorists, and the like – regardless of where they were born. It can also, in some cases, justifiably restrict the movement of people who pose a serious threat to public health (as with carriers of deadly contagious diseases). What it cannot justly do, however, is discriminate on the basis of race, ethnicity, and place of birth in the process of pursuing its other objectives.

Conservatives readily understand that it is wrong for the government act on racial and ethnic generalizations when it comes to, for example, racial preferences in college admissions. Even if members of some racial groups are more likely to have suffered discrimination than others, or more likely to contribute to educational diversity, that generally is not sufficient justification for imposing generalized policies of racial preference.

The same point applies to restrictions on freedom of movement, housing, and employment based simply on where a person happens to be born. And it applies with considerably greater force, because victims of racial preferences in admissions generally suffer only the relatively modest harm of having to attend a lower-ranked college. By contrast, victims of immigration restrictions often suffer life-long confinement to poverty and oppression in the Third World, a far worse fate. If able to stay in the US, but only in “the shadows,” they may be categorically barred from all legal employment and most educational institutions.

Nor is this simply a matter of withholding some form of positive government assistance on the basis of a morally arbitrary characteristic. It is using that characteristic to justify the active use of force to prevent immigrants from escaping the terrible conditions many fled from – even in cases where there are Americans who are perfectly willing to engage in voluntary transactions with those migrants, by hiring them or letting them rent housing.

II. How Immigration Restrictions Lead to Racial and Ethnic Discrimination, Even Against Natives.

Immigration restrictions also undermine color-blindness in a much more direct way: they lead to massive racial and ethnic profiling by law enforcement agencies. In late 2014, the Obama administration decided to continue such extensive racial profiling because officials concluded that they can’t effectively enforce immigration restrictions without it.

Under the administration’s policy, racial and ethnic profiling by immigration enforcement agencies remains officially permitted over some one third of US territory, where two thirds of the population lives. This is by the far the most extensive racial and ethnic discrimination officially endorsed by the US government. It affects not only immigrants, but large numbers of US citizens who merely look like they might belong to the same racial or ethnic group as illegal immigrants.

Sadly, this ongoing injustice has not gotten nearly the attention it deserves from either liberal critics of racial profiling or conservative advocates of color-blindness. It is one of a number of ways in which immigrants are far from the only victims of immigration restrictions.

I do not claim that people have an absolute right to be free of all racial, ethnic, and place-of-birth discrimination regardless of circumstances. Just as there are extreme cases that can justify restrictions on other important rights if it is the only way to avoid some great evil, so the same is true of various forms of unjust discrimination by the state.

In rare cases, a limited use of racial discrimination might be the only way to, say, prevent a massive terrorist attack, or compensate victims of a great historic injustice. But, at the very least, there should be a strong presumption against such discrimination – a presumption that can only be overcome in the kinds of dire cases where we are willing to set aside other important principles, such as freedom of speech and religion. To justify committing such wrongs, the government should meet a heavy burden of proof, requiring it to show both that the policy really is necessary to prevent some great evil, and that it cannot be averted by less unjust means.

Some immigration restrictions might prove to be justified even if subjected to the kind of scrutiny necessitated by the recognition that would-be immigrants are people too, with moral standing equal to our own. But such discrimination should not be resorted to lightly, and it should not be just business as usual, as it all too often is. If we want to protect both immigrants and natives against invidious discrimination, we would do well to relearn the principles that Lincoln understood.

This post first appeared at the Volokh Conspiracy.

  • ILYA SOMIN is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy.