IMMIGRATION AND DEMOCRACY, by Sarah Song. New York: Oxford University Press, 2019. 192 pp. Cloth $34.95. ISBN: 9780190909222
Reviewed by John S.W. Park, Department of Asian American Studies, University of California, Santa Barbara. Email: jswpark@asamst.ucsb.edu.
Toward the middle of her book, IMMIGRATION AND DEMOCRACY, Professor Sarah Song notes that many intellectuals have stopped defending a thick, robust national sovereignty, at least in terms of an unqualified right of nation-states to control immigration. Instead, she claims, “open borders” has become a “dominant position among philosophers and political theorists writing about immigration” (p. 75). Song argues for an intermediate position, something between open borders and blunt forms of national sovereignty: “what is required is neither closed nor open borders but controlled borders and open doors” (p. 77). She devotes the first third of her book to critiques of existing accounts of national sovereignty, the next third to how open borders still aren’t a good idea, and then the last third to outline her own position.
Professor Song gives reasons for why liberal nation-states should retain some level of sovereignty, and then why they should also provide generous policies for family reunification and for refugee admissions. She also gives reasons for why adjustments and legalization might be necessary for some long-term migrants, even those who entered unlawfully. Throughout, as in her other books, Professor Song brings an intellectual rigor to this project that is most admirable, and her writing is clear, accessible, and free of jargon, all of which makes this work an excellent choice for a wide audience. The rest of this review might sound overly critical, but the disagreements I’ll express should not detract from the tremendous respect I have for Professor Song in her attempt to find a reasonable middle position within this polarizing, acrimonious area of public law.
Many scholars — including Joseph Carnes, Kevin Johnson, and Ayelet Shachar — have indeed questioned the ways in which liberal democracies have assigned citizenship at birth and the ways citizens have excluded others through law and policy, often in racist ways. Liberal democracies practiced race-based forms of exclusion ever since they were established, and even though their framers stated lofty principles about the inalienable rights of all “men,” they excluded all women and people of color from full citizenship. “Indians not taxed,” “the migration and importation of such persons” — these phrases from the United States Constitution alluded to certain kinds of people whom the framers did not consider citizens or capable of citizenship. It’s an older, deeper problem than just in the immigration law. The Supreme Court went on to say that Native Americans were members of “domestic dependent nations,” that the members of various tribes were not American citizens, and thus the individual members of those tribes didn’t really have “constitutional” rights.
Slaves posed other problems: they were dangerous, and for white people lots of slaves living among a smaller group of white people were even more dangerous, so the framers envisioned a time when the federal government might want to stop its citizens from “importing” such persons. That, too, as a constitutional provision in Article I, was as much a migration rule as it was a limit on the right of Congress to regulate the American citizens participating in that particular market. In cases like DRED SCOTT (1857), African people appeared as property, not as persons at all, and although this provision might seem as though it’s not about migration, it was. Indeed, if we look at that provision along with the one in Article IV, about how the United States shall protect every state from “domestic violence,” and if we combine [*80] this with what we know already about slave revolts in the late 17th and 18th centuries, we can see how the framers worried about their own slaves, about how there could be too many slaves, and how, if an insurrection did occur, they’d want the federal government to step in. White men wrote the constitution to protect their “property” and allay the fears of other white men.
And in the middle of the 19th century, as the United States imploded into a Civil War and Asian immigrants came to the West Coast, their presence inspired yet a new set of federal rules and precedents through which the United States would express its right to national sovereignty. Over time, the federal courts said that all Asian immigrants should remain “aliens ineligible for citizenship,” perpetually foreign no matter the length of their stay in the United States. Thus, Native Americans, African Americans, and Asian immigrants were systemically excluded from full political membership in the United States based on explicit racial criteria.
As most scholars have done when talking about migration into the United States Professor Song discussed Native Americans and African American in passing, but I wish that she’d spent more time on these two groups instead of focusing primarily on Chinese Exclusion. Native American removal, for example, allowed for an expanding United States to incorporate many more European immigrants — Andrew Jackson’s political career was built upon a set of promises to these “new” Americans, whom he and others understood as “white.” His promises came at the expense of the Native Americans themselves who lost their ancestral lands. In Georgia, by 1840, Irish immigrants who’d passed into American citizenship were voting and running for public office in jurisdictions and lands that had once belonged to Native Americans. Irish immigrants “passed” into whiteness, even though many white citizens in New England or in New York had claimed that such persons were not-quite-white.
In California, state and local officials were attempting to discourage Chinese migrants well before the Chinese Exclusion Act of 1882. We should remember, however, that many state and local officials in California were not themselves American citizens, but rather immigrants from Europe and second-generation European Americans; people who’d come to California not because they were the social and political elites of Europe, of the East Coast or even of the Midwest, but because many of them were also sort-of white, relatively new to the United States, poorer and unskilled laborers, and some not very fluent in English at all. Some of the most vitriolic anti-Asian figures in California spoke with thick Irish and Italian accents. By focusing too much on the federal courts from this era, including CHAE CHAN PING V. UNTIED STATES (1889) — which was the Chinese Exclusion case — we might miss how the political struggles for California often involved the systemic murder of Native Americans, as well as the right of new European immigrants to claim “whiteness,” and to make and to keep California a “white man’s republic.” Professor Song acknowledges that the Chinese Exclusion Acts were “intimately connected with racism,” and that the Supreme Court’s defense of these rules justified the federal government “virtually absolute control over immigration…in the name of protecting white Americans from racialized others deemed ‘dangerous’ to national security” (p. 29).
Professor Song clearly rejects these horrible and racist grounds for immigration exclusion, but she defends her own (limited) account of national sovereignty on a right to self-determination: “I propose an alternative conception of political membership based on participation in shared institutions. According to this participatory model, political membership is valuable because it provides an indispensable scheme of social and economic cooperation and because it enables collective self-determination. Although members of a political community are strangers to one another, they come to identify with the community through a shared history of cooperating together” (p. 9). Later, she writes: “If we take the value of collective self-determination seriously, we see that the power to shape the future of one’s political community is not a brute, amoral power or a mere convention but a legitimate power of a people aspiring to [*81] govern itself. “Collective self-determination is the moral claim of a collective to rule itself” (p. 53).
When reading these passages, however, I couldn’t help but think of those exclusionists and racists in California, so many years ago, appealing for Chinese Exclusion. These were people who had insisted upon eerily similar things, people who had even framed their arguments in similar ways. White ethnics in California did not want to share their institutions with Asian people; excluded or marginalized in other parts of the United States, these “suspect whites” from Europe found a political voice and an American citizenship in California. Even though they themselves came from very different parts of Europe, many speaking poor English or no English at all, resistance to Asians provided them the common glue to build their own “indispensable scheme of social and economic cooperation.” Indeed, the Chinese were, in the words of another prominent historian, “the indispensable enemy.” The Chinese Exclusion Act was undemocratic — Chinese individuals couldn’t vote — but it was also, for white folks in California, a sign that democracy, national sovereignty, citizenship, and self-determination were working for them. From their point of view, Chinese Exclusion was an expression of their collective self-determination, even though these people had just recently seized lands from other people. Cherokee removal had worked essentially the same way—new white immigrants passed into citizenship and started voting for Andrew Jackson, not in spite of his racism, but because of it, precisely because he had promised them lands and an American citizenship at the expense of other people.
All of this is to suggest a fundamental problem with the right of “self-determination,” however qualified it might be. Perhaps it shouldn’t be de-historicized, at least not in the ways that some philosophers and political theorists have proposed, including Professor Song. Perhaps, in some countries and places, where there were always Tibetans or Koreans, we can and should acknowledge a right to self-determination, the right of a nation or a people to govern themselves and to determine their own destiny. Perhaps, in such cases, we can mourn when these people lose sovereignty, and we can celebrate when they recover it.
But in the United States or in a place like California, anyone now pressing for a thick right to self-determination will, inevitably, resemble the most troublesome and disquieting voices from the (recent) history of those places. Indeed, the most strident of them will appear as the most repellent, at least for those of us who remember the history of the United States or of California. Perhaps some nations and places belong to no one — the original inhabitants are all gone, their descendants are far outnumbered by newcomers — and as such, no one should claim a thick right to exclude anyone else from these places. It’s not just a “legitimacy occupancy problem,” as Professor Song describes it (p. 62), it’s more like an “historical resemblance problem”: when we hear people say, these days, that some Congresswomen, all women of color, should “go back” to their own countries, even though they’re all American citizens, or that we should build a wall to protect our nation, or that Americans have this right to self-determination, such that they have the right do these things, it’s all very repellent. It resembles a white supremacy that reflects — starkly and obviously — that era when “America was great again” for white people while it was a living hell for people of color.
To be blunt, American history suggests that when white folks say such things, and when these arguments come from the tweeting fingers and from the filthy mouth of an asinine American President, it’s still even more repellent. This behavior should inspire loathing, and a very historically embedded form of it, specific to this nation and to its history. In these political times, any philosopher or theorist willing to defend “self-determination” — which is another way of saying “national sovereignty” — must be careful to avoid supporting the wrong kind of people. That is, one can easily see how a Trumpian person, including the ones who insist, with a straight face, that they’re not racists, might embrace Song’s (limited) defense of self-determination, which I believe is a big [*82] problem, especially for this time, for this nation, and for our current moment.
If the right of “self-determination” can’t and shouldn’t be de-historicized, the general principle also suffers from present and future problems. In the 17th,18th, and 19th centuries, when scholars and judges developed the law of national sovereignty, commercial air travel just didn’t exist, and neither did televisions, cell phones, or laptops. These days, however, we can see one another and travel more quickly to more distant portions of the world, clearer and faster than ever before. In light of these developments, it’s no wonder that every decent, functioning nation-state has within its boundaries people coming from places that were and are falling apart, as well as large groups of people who entered lawfully and then overstayed. Having seen how another life could be possible, they’ve left for better conditions elsewhere, and on modes of transportation that simply didn’t exist during the Chinese Exclusion era.
There certainly has been a lot of uncontrollable movement in the last four decades, and the pace seems to be accelerating. Syrian refugees have used their iPhones to find Germany, lots of Koreans “overstay” their tourist visas and hang out in Los Angeles or in New York, and Southeast Asians and Filipinos do the same in South Korea. Some states can be insular and closed, like North Korea, but people are fleeing from there to China, to Russia, and to the mortal enemy of North Korea, South Korea; even in the most remote parts of North Korea, the people can see quite easily that life is better anywhere other than in their own country. In the United States, a wall along the southern border may deter the poorest and the most desperate — but everyone else will fly over it. Mexico will build four dozen more international airports over the next decade or two, a middle class is growing there, and so there will be a lot of flying over that wall, should it ever be built. Thus, if North Korea has trouble keeping its people in, and if the United States has trouble keeping people out, then perhaps we should see this resurgent desire for a closed, self-sustaining country, a wall all around it, as a symptom of a far deeper anxiety, arising from the inescapable fact that no place or country will remain economically, politically, or demographically static in this hyperconnected, kinetic world in which we live.
All of this traveling, all of this movement — they have already challenged “peoplehood” most everywhere. Professor Song defines “peoplehood” as “a valuable form of group membership and a source of associative obligations… Members of a people have special obligations to one another in virtue of their relationship to one another,” and “the state creates a people by exercising its coercive power over individuals in a territory” (pp. 56-57). In light of the coercion, Song argues that membership should be open, so that the governed can also govern: “all persons present in the territory of a state for a period of time have a strong moral claim to be included as full members in virtue of their participation in shared institutions” (p. 59). Provided that the state is inclusive enough, “the right to control immigration is the right of the demos to rule itself” (p. 69). And Song, again, ultimately defends the modern state: “The modern state is perhaps the most consequential scheme of social and political cooperation humans have developed. The purpose of political institutions is to make, enforce, and interpret laws to govern our interactions with one another; they are supposed to ensure our security and survival and enable collective self-determination” (p. 177).
To illustrate her point, Professor Song gave this example, between her comments about the “demos” and her remarks about the modern state: “If someone from Georgia moves to New York, she will already share with her new co-residents a common language and cultural idioms and practices, such as celebrating many of the same national holidays and watching the same TV shows and sporting events. By contrast, the cultural distance will be much greater for international migrants to the United States, whether they are from Norway or Ethiopia, because they do not have the experiences of living under common political institutions and sharing cultural idioms and [*83] practices” (p. 102). Moving from Georgia to New York is just different than moving from Ethiopia to the United States — one type of movement is less jarring than another, according to her argument, and so the modern state can claim a right to control that more jarring version.
And yet I think that this argument misses the extent to which the hyperconnected, kinetic world in which we live has created local communities that really are very similar to one another, even though they are oceans apart. Koreatown in Los Angeles, for example, is very similar to Seoul — indeed, in some of the neighborhoods in Seoul, you can also forget that you’re not in Los Angeles, as the food, the cars, the people, their manner, their dress, their cosmetics, and their preferences are all so similar. In many instances, they are the same. There are people who now live here, now live there, back and forth. A hundred years ago, when commercial airlines did not exist, this was not possible and yet now it is. Lots of affluent people do it and they already live a reality not unlike “open borders.” The “demos” was the smallest unit within the ancient Greek world — something like a village or a town — and I assure you, in the demos of Seoul and in the Korean version of the demos in Los Angeles, the people do celebrate the same holidays, they root for the same teams, and they enjoy the same yummy cuisine. Going back and forth for them is not so jarring.
The modern nation state might actually be an impediment to such demoi given how intertwined they have become. What is now true of Koreatown and Seoul is also becoming as true for Little Saigon and Saigon (which is what the locals still call it), for San Gabriel and Taipei, for Flushing, Fouzhou, and Xiamen. It means that a non-Chinese urban professional from Manhattan might feel like a foreigner in Flushing, but a new arrival from Fouzhou would fit right in. As to why an American citizen in Manhattan or in Wyoming should have a thick right to limit immigration from Fouzhou or Xiamen to a place like Flushing might seem, at least to the people in Flushing or in Fouzhou, a great mystery. And wouldn’t the Chinese folks in Fouzhou and in Flushing have the right to complain that such an exercise of national sovereignty impedes their demoi, their existing, robust connections between here and there?
When local communities worlds apart start looking like one another and when mutual affinities can and do stretch across international boundaries in surprising ways, as they do now, the problems with arguments about “self-determination” are that they don’t tell us which demos or demoi we should now privilege over others, nor can they tell us which unit or units of the modern state might be more legitimate (village, region, nation) as the very candidate to exercise that right of self-determination. That is, many citizens of New York may not care, and may even like, that Flushing is so close to Fouzhou culturally and otherwise—they, too, might object to a severing exercise of “self-determination” by the United States federal government. It’s not clear why the federal government should even have the right to do that, nor is it clear that its “right to self-determination,” flowing from federal representatives in Wyoming or in Idaho, should trump the right of people in Flushing and Fouzhou to maintain, and maybe even to thicken, their already considerable attachments.
Even if we grant that the “demos” provides, to paraphrase another political philosopher, the structure through which citizens come to understand their political community as a mutually beneficial scheme of social cooperation, it’s not clear how or why a national government as opposed to a local or regional government should have the final say whether these units that might better represent the locals, the people who see one another every day, and thus do cooperate all the time. In the immigration context, for example, some local law enforcement agencies have refused to cooperate with federal authorities to “round up the illegals” or to separate their families. If the federal government exercises a heavier hand, forcing them to cooperate, does that not violate the right of local governments to determine and to protect members of their community? By using that word, “demos,” throughout her argument, Professor Song might rather favor the locals over the federal government, and I would [*84] press her to clarify the theory so that we might better understand who ought to have the final word in shaping these interconnected, international communities in many modern cities around the world.
Finally, in recent months, many Americans have watched in horror as the United States federal government has incarcerated children, separated children from their parents, and conducted itself in ways that otherwise shock the conscience. Immigration prisons are now some of the largest and most notorious institutions. They are not strictly “criminal” or “penal,” and no one running these places claims that they’re “punishing” the children within them; yet they stand as harrowing reminders of how an irresponsible, careless, and incompetent government can devolve “detention” and “enforcement” into punishing conditions, and into systemic child abuse. Many Americans have found these conditions unacceptable: hundreds of non-profit organizations, charities, and pro-bono attorneys have tried to help people who have been held in this system, and yet federal officials ultimately control who can or can’t see these detainees. Family relationships mean nothing in this system, even as family relationships are the very vehicles through which this system exacts its harshest consequences upon the detainees themselves.
These circumstances point to other major arguments in Song’s book, about the duty of modern nation states to admit refugees (perhaps far more than they lawfully admit now) and about the right to family reunification. Professor Song argues that the duty to admit persons fleeing violence and chaos in their own countries — when these governments cannot guarantee basic rights or even the right to survive — circumscribes a nation’s right to self-determination. “What is normatively significant about refugees is not simply that their basic needs are not being met. Rather, it is that their basic needs can only be met by allowing them to enter a safe country and not returning them to the country where they will face danger. Refugees are defined by their need for membership itself, which can only be granted by taking them in” (p. 119).
These “necessitous migrants” are different from “voluntary migrants,” Song argues, because unlike urban professionals or other skilled workers, people seeking refuge don’t really have a choice. Nations may exclude persons who already live a decent life, and yet they ought to be receptive to those who face danger — this is one of those key “open doors” that is an integral part of Song’s theory. A particular nation’s resources and its history matter: “Wealthier countries with stronger integrative capabilities should bear more responsibility than poorer countries with weaker integrative capabilities” (p. 125). Further, if another country caused the chaotic conditions, the country causing the chaos may need to admit some of the refugees fleeing the chaos: “Causal responsibility for creating refugee crises should also play a part in the process of assigning refugees to specific countries” (p. 125). In Song’s view, the wealthier countries simply haven’t fulfilled their obligations, and thus they may have, collectively, eroded the stability and legitimacy of self-determination and of national sovereignty within a broader international system.
Similarly, “political membership offers a distinct ground for the duty of states to permit family reunification through immigration. The right to sponsor one’s family is a right of political membership” (p. 135). Song argues for an expansive definition of “family”: “If the reason for privileging marital family relationships is on account of the caregiving function, we should stop privileging family per se and recognize all relationships that serve the same function, including non-familial ones. On this more radical approach, family relationships based on biology or marriage alone would no longer serve as a basis for allocating public benefits and burdens.” (p. 145). Additionally, she argues, “equality requires recognizing familial and nonfamilial relationships that fulfill the caretaking function” (p. 146). Presumably, this position would require the state to curb or to suspend the right of self-determination when citizens establish and can prove that they have strong, care-taking and care-giving [*85] attachments to people who are not members, such that those persons can then migrate and re-unify within the state’s boundaries.
Although she may not have written these passages with incarcerated, child detainees in mind, Professor Song’s remarks help us measure how national self-determination — in this moment, and during this time — rather impedes care-giving relationships, and it infringes upon the right of American citizens to offer and to form thick caregiving arrangements to people in distress. The current administration’s policies toward refugees also reflects an utter and total failure to fulfill this nation’s commitments to people fleeing danger. Diverting migrants to third countries, presuming that they do not have valid claims for asylum, separating family members from one another, and then detaining them in punishing conditions — we cannot interpret any of these policies as reasonably connected to national or international commitments for the protection of refugees.
By pursuing policies of interdiction, separation, and incarceration, the United States federal government has prevented progressive Americans from aiding the people most in need, legally and materially. Professor Song insists that the United States in particular is not doing enough. “While the number of refugees is at a historic high, the 21.3 million refugees still constitute less than 0.3 percent of the world’s population. The UNCHR’s budget for 2016 is substantially lower than the amount Americans consumers spend annually on Halloween costumes, decorations, and candy. The ‘crisis’ of refugees is less a crisis in terms of numbers and protection capacity and more a failure among states to meet their moral responsibilities” (p. 126). Professor Song would applaud, I think, the non-profit organizations, religious groups, and teams of lawyers who have attempted to reach out to Central American migrants, and who have attempted to comfort and to resettle them in the United States. But their own government, as it did in the 1980s, during the Reagan Administration, has stood in the way of that work, and as some state governments have moved to limit the deportations and detentions that the federal government now pursues more zealously, the right of states to determine who belongs has come into stark conflict against the right of the national government to exclude and to remove. Once again, whose version of “self-determination” ought to prevail?
Of course, the resolution for these conflicts might be in political campaigning at the national level, in running against the Trump administration and then electing a new set of representatives and officials who might open more doors — for refugees, for family reunification, and for the adjustment of persons who’ve been residing in the United States for many years without lawful status. Toward the last policy, Professor Song writes in favor of adjustment: “Even though unauthorized migrants are present in the territory in violation of immigration law, their presence entitles them to basic rights and over time, they acquire the right to remain… Non-citizens are entitled to certain basic protections in virtue of their territorial presence” (p. 182). And, “in my view, the longer unauthorized migrants remain in the territory, the stronger their claim for legal residency status. Once unauthorized migrants have settled in a country, we should regard their violation of immigration law as having been overridden by countervailing factors” (p. 185).
But I would propose that this is precisely where the intellectuals and the general public divide, where those who favor open borders, or even wider doors, collide with the political realities of our time. Even if “open borders” may have become a “dominant position” intellectually, it certainly hasn’t been anything close to a winning position electorally. Even in California, Massachusetts, and New York, the three most progressive and bluish states with regard to immigrants and immigration, it’s hard to find prominent politician in favor of straight-up open borders. Thus far, no major Democratic candidate has taken such a position—all of them, like the Republican incumbent, rather prefer or assume varieties of “self-determination.” Even though some of the Democrats have promised to adjust younger Dreamers, as President Trump himself once did, or to take more refugees, I highly doubt that any [*86] candidate would stake their political campaigns on “open borders.” Even the most progressive politicians would prefer, I think, the qualified right to self-determination described in Professor Song’s book—it would be circumscribed by an obligation to admit refugees, by a more expansive view of family reunification, and by legal adjustments of long-term residents. This approach might be possible in our current political climate, and these policies would be vastly better than the regime we’ve had since 2017.
And yet I think that we still have far more hard work to do in political theory and in political philosophy, if just to describe why national sovereignty — even a highly qualified right to national self-determination — may or may not, or should or should not, survive the kinetic, interconnected world in which we live. Very likely, some version of national sovereignty will survive, and of all these versions, I would prefer Professor Song’s. But as the world’s climate changes, as weaker states fall apart, and as more people must move to survive or to pursue livable conditions, I worry that her more sensible version of self-determination will rather not prevail over the harsher, racist, parochial, and acid versions that destroy and criminalize local communities, rip families apart, or justify the long-term incarceration of children. I think that we still need to clarify what “self-determination” should not entail, in light of our specific past, as well as in our collective future. I also think that we still need to figure out how national sovereignty might make sense during this moment when our technologies can easily bring together so many people, virtually and physically, across vast distances, thereby changing large cities and regions. I am thankful for Professor Song’s contributions, but I do hope that she’ll write a sequel to explore these questions further.
CASES:
CHAE CHAN PING V. UNTIED STATES, 130 U.S. 581 (1889).
DRED SCOTT V. SANDFORD, 60 U.S. 393 (1857).
© Copyright 2019 by author, John S.W. Park.
