Immigration and States’ Rights

Bryan Caplan (arguing the affirmative) and Christopher Wellman recently debated whether immigration is a human right.

Wellman won the debate according to audience votes, but I think his argument was significantly weaker. He made confused arguments that, when given second thought lend credence to Caplan’s position. But through hand waving he transitioned to “and therefore states’ rights!” I am far from convinced that state’s rights are valid, but I do want to explore an interesting issue he raised: the moral weight of collective phenomena.

Markets generate economic information more intelligently than any individual participant. Competition and collaboration in cultural spaces generate more and better art than any individual on their own. Society is the outcome of individual choices, but the collective is something apart from those individuals.

We have various collectives (e.g. cultural regions, markets, local communities, families, national identities, sports fandom, science, etc.), many of which are special. They provide club goods (sometimes club bads), and require the support of their members. These networks exhibit emergent properties–the whole is more than the sum of its parts.

So surely those members should have some say in the management of the collective?

This is where Wellman went off track. Yes, these collectives are important. Yes, they require some form of governance. But that doesn’t unambiguously imply involvement of government.

Consider an excellent example Wellman gives: families. Families are an essential part of the structure of society and one we are each deeply familiar with. If there’s a collective entity with moral weight, surely it’s the family.

Wellman posed the hypothetical around the 32:45 mark: what if he returned home and found that his wife had unilaterally adopted a new child? Clearly this is freedom of association run amok! But the example doesn’t imply the need for state involvement; it implies the need for couples therapy! If he and his wife together decide to adopt, then the question remains, “why should the government have a say in this?” Currently it does, which means that whatever the median voter is cool with is acceptable, even if that means preventing this adoption that clearly doesn’t affect them. That seems untenable unless we have strong evidence that adoptions tend to create large negative spillovers.

The moral weight of a family doesn’t imply either state involvement or democratic decision making. Members can be added to a family through birth or marriage. The decision is made by the one or two individuals most directly involved (perhaps with some role for other family members). And those decisions are made non-coercively. Parents may intervene to prevent teenage Romeos and Juliettes from getting married, but adults are basically allowed to make their own decision.

I’m guessing here, but I’d bet that 90% of people would agree that the way we do freedom of association in families is basically the right way to do things.


The scope of a family does not fit neatly into the boxes drawn on a map, nor do most other collective phenomena. Red Sox Nation isn’t just Boston. Regional cultures overlap. Languages cross borders.

We want the collective decision making institutions to reflect the area of spill-overs. Decisions affecting a family should be made within the family. I shouldn’t be directly involved in decisions about how to provide local public services in San Diego. Global spillovers justify global decision making, but local spillovers don’t.

When it comes to immigration, we have to ask:

  1. What collectives will they affect? (certain labor markets, local communities)
  2. Are they likely to create large negative spillovers?
  3. What is the current form of institutions governing those collectives?

There are high stakes for many potential immigrants (especially those coming from places typical Americans are most afraid of), so we should probably go a step further: if there’s a solution to some potential spillover problem that isn’t significantly more costly than immigration restrictions, we should feel obliged to use that solution. For example, it should be easier to come here to live and work than it is to get welfare benefits (although getting that policy to work raises a host of other questions).

Rights imply action

Let’s agree on this: there are collective phenomena that are special. We want to take care of these phenomena which means figuring out the appropriate form of governance for each case.

Wellman gives another family example that blows his own argument out of the water: what if he was put in an arranged marriage? This would deny him important scope for self-determination. And therefore (he argues) states, being important collective phenomena, have a right to self-determination.

How did the audience not notice this?! Immigration restrictions deny me choice over who to voluntarily associate with and so deny me scope for self-determination.

Even if it feels weird from a rational-individualist perspective, there is something special about (e.g.) a country. But that doesn’t mean we should abandon methodological individualism. We know that only individuals make choices, even if they make those choices for the sake of collectives. A collective can have moral weight but still lack the ability to choose. To my mind, this kills the idea of states’ rights (as in “right to do x” or “right to self-determination”) in general.

What we’re left with is the original question: how do we manage the collective? What decisions do we make collectively, and what do we decide piecemeal?

For many (most?) collectives, including the most important ones, we allow freedom of (dis)association and leave the state out of it. Wellman did not answer the question of “why should immigration be different?” I suspect there are strong arguments to be made, but the closest I heard in this debate is that we can think of this as a question of governance, and that government sometimes provides governance.

As Wellman points out (around the 30:00 mark) there is (sometimes) a tension between rules favoring individual freedom and rules requiring collective decision making. There are plenty of examples of scenarios where we uncontroversially prefer to limit some individual rights–we do this automatically with negative rights by denying you the freedom to murder in support of your right to life.

It’s not clear to me that the expected effects of immigrants are widespread enough to justify as sweeping a policy as “only the following people are allowed in these particular thousands of square miles.” For immigration (but not access to the welfare state), the presumption of liberty seems the way to go.

tl;dr: We have various collective goods that are special (e.g. the “character” of a community). This calls for some form of governance to allow the individuals directly involved to manage collective goods. This frequently calls for constraints on individual freedoms for the benefit of the community, but that doesn’t mean that the special collective identity of a country justifies a presumption of closed borders.

The debate over whether the nation state is violating human rights by restricting immigration (with caveats made for “obviously” reasonable restrictions like keeping out known murderers) is not closed by pointing out that there is a collective good associated with the nation state. States can be special without having states’ rights.