There is only one honest place from which to start a discussion of America's current immigration crisis, and that is with an acknowledgment that this crisis is not primarily a political problem -- it is a human rights problem of vast proportions. It is a humanitarian catastrophe that splits children from their parents, locks people away for months or years in detention facilities away from their loved ones, and allows for the maintenance of brutally exploitative labor practices and the denial of collective bargaining. This is where Aviva Chomsky's Undocumented begins, in medias res, and its decision to do so is one of the book's most redeeming features.
Chomsky has written before about the rights of immigrants, and has sought to explode certain popular slanders against them -- that they don't pay taxes, and so forth -- but she begins this book (Boston: Beacon Press, 2014), by reflecting that these earlier claims of hers, while they may be true, basically "miss the point." (p. 7). They are the kinds of considerations that would be most relevant if the immigration crisis were simply a matter of finessing domestic policy and weighing contingent factors. But Chomsky's view now is that it is precisely not this sort of political question-- it is a question, rather, of fundamental human rights that can't be subordinated to utilitarian purposes. This, as I say, is the very first thing we need to get clear on, and Chomsky does so admirably.
Establishing this point does not answer nearly as many questions as we'd like it to, however, which is why I say it is the right place to start the conversation, not the right place to end it. Human rights are a concept that sound a lot simpler than they are, to people who inhabit liberal societies and begin imbibing "the heritage of free thought [...] with one's mother's milk," as Richard Wright put it. From outside this context, it no doubt appears to many people that the core texts of our modern human rights movement, such as the Universal Declaration of Human Rights, are morally inspiring but philosophically muddy documents, and need a great deal of further elaboration to make sense.
This is particularly true when it comes to the rights of migrants. How are we to think of the right to "freedom of movement," for instance (Article XIII of the UDHR), in a world of closed borders? The UDHR takes it for granted that people should be allowed to leave their country of origin (Art. XIII), but do people have a similar right to be received someplace else? That's one of the more obviously puzzling rights in this context, but even the more basic ones, the ones we might have thought entirely immune to confusion, such as the right to live, can prove enigmatic on closer inspection. Supposing for instance that the U.S. government has an obligation to respect in its own actions the rights to"life [...] and security of person," (Art. III) of undocumented people inside its border, which surely even the most miserly interpretation of the doctrine would grant-- does the U.S. have the same obligation to protect those rights from non-state actors-- to positively act to enforce these rights against other agents?
And this is not even to touch upon those "economic and social rights" that place us liberals on such notoriously shaky philosophical terrain. Let's grant -- as most liberals would -- that people have some moral entitlement, by virtue of their humanity, to shelter, food, water, and the rest of it. Stating this still does not tell us who is obliged to give these things to them. Does each state owe all of these things to all other people-- regardless of citizenship? Surely not, but then -- who does owe it to them? And if no one does, in what sense are these "rights," rather than just things people ought, ideally, to have?
Most of these problems arise from the fact that the UDHR seems to assume a world made up of nation-states, each of which can properly be expected to look after its own. One of Chomsky's chief points in this book, however, is that this is not the world we live in-- that the entities that most affect our lives today are not confined by national borders. Chomsky is right that a lot of the UDHR's language about nationality is hard to take seriously, post-Hannah Arendt. But even once we've granted that the nation-state is basically a fictive construct (thank you, Benedict Anderson, even though I haven't read your book), and that the UDHR should not be treated as some final revelation, we still have to live in a world that is divided by borders, and in which there is no global entity to superintend all these rights. So what does it mean, really, when we say that "immigrant rights are human rights"? What does a state owe to non-citizens?
Unfortunately, Chomsky's book offers very little guidance on this point, and it is not even clear that the author would acknowledge that there are genuine difficulties along these lines. Chomsky has a habit of elaborately side-stepping questions like the ones I've posed above, typically by redirecting our attention at the crucial moment. Whenever Chomsky seems about to offer something like a policy recommendation, she suddenly bids us instead to recall, say, the fact that the United States' own policies created the migration crisis in the first place (by devastating Mexico's indigenous agriculture through NAFTA and supporting various bloody dictatorships in Central America over the last century). These latter points, I need hardly add, ring entirely true-- U.S. policy has been profoundly destructive in Latin America. It has swelled the numbers of people fleeing north. (Our ongoing drug war is another source that might be included here of the violence, criminality, and poverty that lead people to risk everything to escape across the border.) But it should be equally clear that we still have to live in this ugly world we've created for ourselves. And in this world of hideous inequalities, the question is: can the United States be expected to offer the same set of citizenship rights to everyone in the world who wants them?
Chomsky's argument seems to push inescapably toward the conclusion that yes, it should be expected to do so. After all, she apparently regards the notion of citizenship as inherently discriminatory. (p. 8, e.g.) But this is a rather astonishing claim, and when it comes time to either commit herself to it decisively or adopt another, she dodges. “In order to talk about solutions, we have to understand the real roots and nature of the problem," is how she begins the final chapter of the book (p. 299). Needless to say, by this point in Undocumented, we have already been told several times over by Chomsky what the "real roots and nature of the problem" are; and we have been waiting on tenterhooks for the promised "Solutions" of the finale. To be told once again at this point that we have to start by meditating on the terribleness of NAFTA, and that this will enable us to proceed somehow to "address[ing] the root global and economic factors that have contributed to today’s problems” (p. 343), is a rather groan-inducing disappointment. (It's probably unfair in a review of anyone's book to mention her parents, but I can't escape the feeling that there is a shadow of Noam here.)
Undocumented is a bounteous source of good reasons for outrage against our current system, but I'm afraid we're going to have to do our own thinking as to what a border policy would look like that respects human rights. To figure this out, we can draw extensively on the information cited in Chomsky's book, but the logic-chopping has to be our own.
And once we get down to it, we discover that there was no reason for the book to be so evasive, since present U.S. policy fails on even the most minimalist interpretation of human rights doctrine. (This is a gift that the present Chomsky shares in common with Chomsky the Elder-- that of making her own arguments seem less plausible than they actually are).
The most entirely close-fisted way we might understand human rights doctrine is to suppose that every governing entity is obliged not to violate certain rights (by killing or arbitrarily detaining people, etc.), but that it has no further obligation to protect these rights by intervening in the actions of non-state actors or private persons who threaten them. This is the "Latest Decalogue" version of rights (which its author, Clough, was mocking, not endorsing): that the state "shalt not kill; but needst not strive / Officiously, to keep alive." This may not sound like a view of human rights anyone would actually have, but as Ajay pointed out to me in a conversation a while back, our own Bill of Rights doesn't go very far beyond this in its language-- it mostly just enshrines the negative rights we have against the government, and not the positive protections we receive from it.
But as I say-- even if we take the "Latest Decalogue" view of rights, our current U.S. policy stands in violation of it. I say this for the simple reason that our government currently places people in detention facilities who have committed no crime, apart from fleeing violence, terror, and poverty in neighboring countries by crossing the border. They are detained, Chomsky reminds us -- generally in appalling conditions -- for months and even years, far past any reasonable standard of access to a "speedy" trial (which our Bill of Rights promises). And when people do eventually appear before the immigration court, Chomsky further informs us, they are left unprotected in a way we would consider outrageous and intolerable in any other legal context. “Immigration court," writes Chomsky, "is a separate entity from the criminal justice system; it is an administrative court. This means that the whole body of law designed to protect those accused of crimes and guarantee them a fair trial does not apply.” (p. 173). She notes that 84 percent of people who appear in immigration court have no legal representation, because the state does not provide counsel to indigent clients when they are not facing criminal charges (Ibid.).
And yet -- people who are threatened with deportation are surely faced with a criminal penalty, or what in practice amounts to one. The ancient Athenians regarded exile as one of the worst, if not the worst, forms of criminal punishment imaginable-- and in their case it only lasted for ten years! Lifelong exile, then, from a country in which one has sunk roots, developed social bonds, and even reared a family, is a truly horrifying penalty, especially when it is visited on someone who has done nothing worse than crossing a national boundary.
Yet our current system not only threatens undocumented people with such exile, it fails even to equip them with the rights of criminal defendants, such as the right to counsel. The cruelest irony of it all is that undocumented people lack these rights precisely because our law-- correctly -- does not regard simply residing in this country without papers as a "crime," but as a fairly innocuous civil violation. So we threaten people with lifelong exile without a chance to defend themselves because we don't think they have done anything especially wrong!
Thus, even the most minimalist interpretation of human rights requires some vast changes in our current system. If we take a more expansive view, as nearly all our existing human rights literature would have us do, the picture falls into an even sharper focus. Suppose we take the view that human rights compel our government not only to respect the rights to life and freedom of movement, etc. in its own actions, but also to protect them from non-state actors; then the case for massive immigration reform-- namely legalization of status for all undocumented people currently residing in the United States -- becomes almost inarguable. Human Rights Watch (HRW) points out, for instance, that being undocumented in this country currently means that one cannot access the usual channels for redress against abuse, rights violations, and crimes against oneself. On our more expansive understanding above, this is itself a rights violation, even if it is not accompanied by any overt state repression. HRW writes: "The International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992, ensures that victims of human rights abuse have access to a remedy, and that no group or category of victims should be unable to access the criminal justice system."
This HRW report goes on further to argue that one of the most basic of rights is that to a "private life"-- which includes the freedom to maintain ties with one's family, without arbitrary state restrictions. The UDHR -- not a binding legal document, but a useful one for understanding the moral intuitions behind human rights law-- asserts that "Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. [….]
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State." (Art. XVI). If we take these words at all seriously, then our government's record toward undocumented people is black indeed. Far from protecting immigrant families, it has been tearing them apart.
This is a point about deportations that is not widely understood -- at least it wasn't understood by me until I read Chomsky's book. While nearly all of us have probably heard before the bloodcurdling stories of parents and children being separated from one another by immigration officials, we may, while listening to them, have heard an ungenerous devil perched on our shoulder whispering to us that "no one is actually being separated from anyone else, technically, since the rest of the family could in theory depart alongside the one who has been forced out of the country, right?" Well don't listen to him-- he is speaking lies, as devils are wont to do. Undocumented people do not always have these options to accompany deported family members. Chomsky cites cases in which judges have actually terminated the parental rights of people who were being deported, and placed their children up for adoption-- wresting children from the care of their natural parents without any finding of abuse or neglect on the latter's part (pp. 265-269). If that isn't a violation of basic human rights I don't know what is.
What emerges from all this is that the United States can only cease to violate the rights of undocumented immigrants by legalizing their status across the board. Of course, as is well known, this only generates further practical quandaries. Politically speaking, the only way that this type of legalization could ever pass Congress is if it were accompanied by vastly expanded border enforcement. But the promise of legalized status within the United States would -- at the same time -- swell the desire of people from other countries to get here. The likeliest scenario is that people will find even more dangerous ways of trying to cross the border and will perish in large numbers as they attempt to do so. Their deaths will, in some sense, be on our hands. (Chomsky alerts us to the fact that people are already dying in huge numbers in the border region, and it is largely because the only places in which they can avoid our border enforcement are deserts and uninhabited wastelands). Do we want our border with Mexico to end up entirely covered by tunnels and bullet-holes and carcasses? Do we want Mexico to become another "open-air prison" (as David Cameron described Gaza), the walls of which are patrolled by a military superpower that keeps its guns trained on the desperate people trying to escape?
The case for open borders makes a great deal of sense. The reasons above contribute mightily to it. However, the case against them is also much more compelling than people on the Left like to admit. Making the latter case, however, requires thinking about the economics and labor implications of immigration, which I will save for part II of this review, which I plan to write next week. The second part will also contain some of my own favored "solutions" to the problem, at long last-- but lest I am accused of being as evasive as Chomsky, and of promising more than I deliver, I assure you now that these solutions will be neither exciting nor original. But more on that next time.