Antidiscrimination Beyond the State
Are all grounds for excluding immigrants morally equal? Or are some, such as racial grounds, distinctively wrong? Under the view that (ideally) borders should be open or that there is a (defeasible) right to migrate, then, say, racial exclusions may be no more condemnable than any others. But there is also a growing tendency to identify particular restrictions in terms of “discrimination”. However, this typically proceeds without examining whether a state’s membership decisions are rightfully subject to antidiscrimination principles in the first place. This is somewhat understandable since, within a state, it is familiar enough that discrimination on certain grounds is wrong. However, if it is wrong for states to discriminate when selecting members, what factors about states explains this? Moreover, what exactly does this mean, and what does this imply for states’ rights and the rights of nonmembers? These are some of the questions addressed in this paper.
Specifically, this paper demonstrates not just that certain grounds for exclusion are wrong—indeed, that is not the central aim—but, more importantly, that states are morally appropriate sites for antidiscrimination concerns. This not only means states that have certain nondiscrimination duties to nonmembers, but also suggests, in contrast to conventional views on states’ rights, that states may not unilaterally determine their memberships. Antidiscrimination norms present us with their own distinct framework for analyzing immigration—one that incorporates the importance of social identity and context, and provides a principled way of explaining central matters that do not seem to be explained either by open border views or conventional views of states’ rights.
Updated: June, 2017
It is standard to think that people living in the same state must have, at the very minimum, the kind of formal equality expressed by notions like equal participation or equal rights, and “subjection theories” are arguably our best theories for explaining why. These theories highlight the moral relations that are generated when people are mutually subject to the state’s laws, policies, and directives. Despite their many virtues, however, subjection theories seem to permit a system of “benign apartheid”: namely, by limiting some members’ subjection to the state’s laws against their will, it seems we may treat those members quite differently, including by segregating them. I conclude by briefly demonstrating how the paper’s analysis suggests that whether certain kinds of inequality are objectionable may not depend on sharing a state even broadly considered.
“Freedom of Association and Immigration Restrictions”
This paper takes off from where a previous one ended (“Stripping Citizenship”), where it was argued that states are permitted to revoke the citizenship of law-abiding members for the same reasons that they may withhold it from newcomers. This paper argues that despite initial appearance, the result that citizenship revocation, among other unappealing things, is permissible should not strike us as surprising. For the philosophical view concerning the membership authority of states largely emerges from the dominant intuition that states are just like other communities, at least concerning their membership rights. Moreover, this intuition fails to acknowledge important differences between a wide variety of domestic associations. For instance, some, such as marriages and partnerships, are almost entirely free to use whatever selection criteria they choose; others, such as large businesses, are constrained in various ways. Thus the best chance we have for objecting to stripping citizenship is to recognize the variety of associational rights, as well as obligations, and to stop viewing states as merely another type of community or association. There are many reasons to think states as different, but a central reason is that states control and shape access to a significant interlocking web of economic, political, cultural, and geographic opportunities. Because of this fact, the idea that each state should have sole discretion in determining its membership should begin to strike us as implausible and problematic.
“Liberal State for Us; Minimal State for them?”
“Justifying the Firm, Justifying the State”
“Markets in Everything?”