This book is a carefully crafted and innovative attempt to trace the ethical underpinnings of immigration policy. Ryan Pevnick boldly asserts the primacy of citizens' ownership rights over national institutions and territorial boundaries (pp. 11, 44, 54–60). He argues that citizens have a special claim over and above foreigners on the goods and institutions they produce through their labor, taxation, cooperation, and coordination (p. 11). At the same time, ownership claims via self-determination are not absolute, and minority rights must be protected as a matter of justice (p. 63–66). Equally, self-determination is not an unlimited justification for ownership claims, though it provides sufficient reason for considerable exclusions of many would-be immigrants. This perspective, which Pevnick calls “the associative ownership view,” rejects the views of both open-border advocates calling for unrestricted mobility across national boundaries and policies asserting absolute state sovereignty (statism through immigration controls in an effort to protect national interest). In both accounts, the moral and legal rights of “foreigners” come up against state sovereignty and self-determination.
According to Pevnick, statists give little consideration “to the interests of foreigners,” all the while emphasizing the right of citizens to select an immigration policy that is best for themselves (p. 8). Citizens determine the national interest, and therefore, they will choose any new members of the political community. He argues that statism mistakenly justifies a state's right to exclude foreigners based on an inadequate understanding of sovereignty. He asserts that sovereignty alone cannot explain self-determination in which the claims of others impose no restriction on the citizenry. To Pevnick, foreigners “are neither beyond the scope of justice nor trumped by considerations of sovereignty” (pp. 20–21). Sovereignty is bound by norms of justice in which all individuals possess “an equal moral status” (p. 21). But having an equal moral status does not necessitate a right to free movement.
Pevnick denies “the right to free movement” by distinguishing between moral rights (basic conditions for human well-being) and legal rights (conditions “protected by law”) (p. 81). Instead, he proposes that the legal right to movement is in fact based on the instrumental need to protect individuals' moral right to subsistence (p. 87). He stops short of accepting open borders as an inherent right, despite sharing similar concerns with proponents of open borders. Stressing the right of individuals to enjoy a basic threshold of subsistence—and therefore the right to move to obtain such a minimum standard (pp. 87, 90–94), Pevnick both makes an exception for refugees and immigrants from extremely impoverished countries and defends the right to exit. He believes that clarifying the right to free movement not as a basic moral right but as a means of protecting other such rights allows us to better judge appropriate immigration policy (p. 100).
Subsistence becomes a categorical limitation on free movement in Pevnick's formulation, since individuals above a certain threshold do not qualify (pp. 95–96). Unequal distribution of wealth in the world requires that those in persistent poverty be allowed international mobility to gain access to wealth (pp. 91–92). But not all inequalities in opportunity are unjust; rather, a commitment to self-determination recognizes that there are some instances (Pevnick discusses four) when inequality is in fact a form of injustice (pp. 117–30). He can oppose inequalities that contravene norms of justice “without embracing an unbounded commitment to equality of opportunity” (p. 117).
The author objects to those who wish to exclude foreigners due to concerns about national identity because they fail to “explain why members of the cultural majority are entitled in the first place to make decisions about the future cultural composition of the country” (p. 135). Claims about the cultural nation mistake the relationship between state institutions and citizens as one of shared identity when it is actually about their entitlements and ownership (p. 15).
Pevnick's associative ownership view speaks well to the need to find middle ground on debates surrounding the ethics of immigration. It powerfully captures the nuanced relationship between moral rights and instrumental public policy. In the process, the author contends with rival ethical constraints on immigration policy, forcefully defending the efficacy of his “ownership”-based claims on territory and membership. While some of Pevnick's examples are contrived, and he could have done much more to draw on actual immigrant testimonies, life stories, and experiences, his vigorous defense of his “associative ownership” thesis and its expansion to newer terrains is an impressive contribution to the current literature on the ethics of immigration policy. Indeed, it will initiate an important new debate on immigration ethics. Let me begin that discussion now.
First, Pevnick opposes “integrationist” scholars who advocate the regularization of long-term resident illegal immigrants (pp. 163–70). He claims this move will violate the political community's right to ownership, self-determination, and consent of membership. Much hinges on the political communities' ownership of the state (pp. 37–39), and yet, most citizens inherit “the state”—a legacy of autonomous institutions left over from previous residents. In attempting to weaken the citizenship claim of resident noncitizens, Pevnick neglects to specify what qualifies one for citizenship status. His ownership claim will stimulate a discussion of precisely the type of social, political, and economic activities by residents that strengthen and affirm their claim on the state.
Second, Pevnick thinks in terms of dichotomies—owner/nonowner, citizen/foreigner, citizen/outsider, member/foreigner—in an effort to generate ideal types that will test the limits of hypothetical norms underpinning immigrants' place in the world. In adopting this strategy, he is able to disaggregate normative claims, but in so doing, he obscures the actual gradients of membership that presently exist. On entering a territory, immigrants can often be on a path to membership—the boundaries separating territory and citizenship within it are permeable. A sole focus on citizenship status as the only means of membership leaves out a continuum of membership claims acquired through citizenship practices. Associative ownership has no place for immigrants' evolving stake in the political community or their gradual ownership of the state. The author accommodates only two categories leading to citizenship: one based on subsistence (poor immigrants) and the other on victimhood (children of illegal immigrants and refugees). We are left wondering about other forms of membership. Are long-term residents and permanent residents (Green Card holders) members of the political community in the same way as citizens who are members by virtue of their birth? What about dual citizens or multiple citizenship holders? A failure to acknowledge a continuum of membership claims limits his theoretical approach.
Third, Pevnick makes clear that since the political community owns and builds institutions—though he never specifies the range of eligible institutions—it legitimately has the right to restrict membership (with some exceptions). In doing so, he assumes that the political community is homogenous and that a shared stand on immigration policy is possible. For example, he emphasizes the role that consent plays in determining who future members will be (pp. 164–70), but again this assumes that a consensus can be reached within the political community. This is ironic since he ignores domestic hierarchies based on race, class, and, importantly, immigrant group. Pevnick's main case, the United States, is an immigrant land, and therefore ethnic networks and enclaves abound. The citizenry is a collage of ethnic neighborhoods, groups, and identities, holding differing views regarding access to citizenship. One immigrant ethnic group will support amnesty for illegal immigrants; another will oppose it. Missing from his account of the political community is the dissonance of diversity introduced by constant immigration. A nation of immigrants rarely speaks with one voice on immigration.
Lastly, Pevnick argues that social cooperation is critical for defining the legitimate claims of ownership between and among members, but he does not define the ways members engage in social cooperation or the limits of that cooperation. To say simply that social cooperation is nonconsensual and intergenerational fails to acknowledge the various expressions of civic engagement. Postnational subjects create a thick environment of coordination and social cooperation across the citizen/foreigner dichotomy. In all such domestic interactions, immigrants practice economic, social, and civic rights, regularly building a record of their employment, civic behavior, and social value (evidence sufficient for the citizenship and immigration authorities to confer citizenship). Over time, they accumulate both legitimacy and graded claims to legal citizenship, eroding the sharp boundaries between themselves and citizens. These everyday iterations of citizenship practice are the basis of social and political cohesion—of political order. This is not a mere “social fact” (p. 164); such daily practices legitimize and strengthen the institutions of the state, whose ownership Pevnick confines to citizens. The nonconsensual, illegal entry of illegal immigrants cannot be a lifetime sentence. Over time, norms of equality and ownership cannot be maintained by disrupting communities into separate spheres of citizens and foreigners.
The enduring impact of immigrants contests any definitive claim to the state and its institutions. Immigration inevitably redefines citizenship returning us to the ethical limits that Pevnick reveals. If Immigration and the Constraints of Justice is read as carefully and widely as it should be, Pevnick's valuable intervention will prompt us to think more deeply about the appropriate stakeholders in immigration policy.
