An Unsound Argument Against National Borders

The Dark Ostrich extracts the following argument from a TED video:

(1) It is wrong that anyone subject to the force of the law should not be subject to its protection, but

(2) those immediately outside the border and forcibly prevented from entering are subject to the force of the law but not its protection, ergo

(3) this is wrong.

The conclusion follows from the premises, but the conclusion is false. Therefore, one of the premises is false.  Which one? The first. To accept (1) is equivalent to rejecting nations and their sovereignty.

If you insist that the above deductive argument is sound in the technical sense in which most philosophers use the term (valid in point of logical form and possessing premises all of which are true), then I will point out that it is not rationally compelling.  

For it can be run in reverse with no breach of logical propriety.  "One man's modus ponens is another man's modus tollens."

I could also say that the above argument begs the question at the first premise.

If you accuse me of begging the question, then I say we have a stand-off. I will then suggest that you leave my country and go live in the borderless world of your dreams.

................................

Jacques responds:

"If you accuse me of begging the question, then I say we have a stand-off. I will then suggest that you leave my country and go live in the borderless world of your dreams."

I think it's not even a stand-off (rationally).  Either premise 2 is patently false, or the argument is just invalid, or 1 has to be interpreted in such a way that 1 is patently false: 

First of all, when American immigration agents (legally) deport people or keep them from entering the country, they usually do so in ways that are legal relative to American law.  And they can be charged with crimes themselves if they don't.  They don't mow down would-be illegal immigrants with machine guns or drop them back in Mexico from helicopters.  They don't force them to convert to Islam or steal their pocket change.  When aliens [are] being deported or prevented from entering [,] the legal standing or rights assigned to such people by American law are generally respected, and are supposed to be respected under American law.  So 2 is patently false on one reasonable interpretation. 

BV: I agree.

Maybe the meaning of premise 2 is that illegal aliens, or would-be illegal aliens, are not legally granted exactly the same protections (rights or powers or whatever) as some other people--American citizens, for example.  But then, in order for the argument to be valid, premise 1 would have to say something like this:

BV: That is the way I read premise (2).

(1*) It is wrong that anyone subject to the force of the law should not be subject to all the same legal 'protections'  to which any other arbitrary person subject to the force of the law is subject.

BV: And that is the way I read premise (1).

But 1* is even more absurd than 1.  If 1* were true, then all the following scenarios would be morally wrong:

i. The President of the United States is legally protected by the Secret Service in ways that some Americans are not.

ii. Some citizens who are poor and unemployed are legally protected against starvation and life-threatening illness by means of welfare payments and publicly subsidized healthcare but the President of the United States is not.

iii. Some citizens who are not convicted child molesters are legally protected against certain forms of invasion of privacy in ways that citizens who are convicted child molesters are not.

iv. Some citizens who are not in the process of carrying out an armed robbery are legally protected against gunfire from police officers but some of those who are in the process of carrying out armed robberies are not.

v. Female citizens are legally protected against sexual harassment in ways that male citizens are not.

vi. Citizens who are 7 years old are legally protected against certain forms of self-harm--doing tequila shots at strip clubs, for example, or having sexual relationships with people who are 30 years old--but some other citizens are not. 

BV: Those are all good points.

Well, this could go on for a while.  So either 2 is patently false or 1, on the relevant interpretation, is patently false. 

BV: I say that (1) is false, (2) is true, charitably interpreted, the argument is valid but unsound. I think we agree or could agree on this.

Why then did I say that it is a stand-off?  Because the open borders defender could bite the bullet and insist on (1)/(1*).  To so insist is equivalent to denying the moral legitimacy of nation-states and their sovereignty. If he is denying said legitimacy, and I am affirming it in virtue of running the argument in reverse, then we are at loggerheads and we have a stand-off. 

Of course I could go on to argue why we have need of nation-states and why they are morally justified. But then we are deep into the bowels of political philosophy. What if the opponent turns out to be a (philosophical) anarchist who denies the moral justification of states and their coercive powers?  We will soon encounter other stand-offs. For example, we will soon enough enter the philosophy of human nature (philosophical anthropology).  What if he takes the anarchist line that people are by nature good and that states and their laws are corrupt and corrupting? Of course, one can argue against that too, and as a conservative I will, but have sophisticated anarchists been decisively refuted to the satisfaction of all competent practitioners of political philosophy?

The task of the political philosopher is to dig down to the deepest underpinnings of the 'surface' debates such as DACA, the need for a border wall, etc.  Unfortunately, when we dig deep, we find that we cannot get to bedrock, a bedrock upon which we can all agree.

I fear that I must now open the ComBox.

Comments

[The Dark Ostrich]

As an aside, Jacob Berkson was a student of Michael Dummett

I am struggling with the ‘one mans modus ponens’. I take it to be this. Assume that A (logically) implies B. One man, taking A to be obvious, argues to B. But another man, who take the falsity of B to be equally obvious, argues from not-B to not-A, which is equally valid. So you are challenging the assumption that premises be ‘better and prior known than the conclusion’. In this case, apparently not, so there is a stand off.

[Jacques]

Hi Bill,
You say there's still a stand-off "Because the open borders defender could bite the bullet and insist on (1)/(1*). To so insist is equivalent to denying the moral legitimacy of nation-states and their sovereignty."

But insisting on 1* is not merely equivalent to denying the moral legitimacy of the nation state. It's also (I think?) equivalent to denying that--for example--it's morally legitimate for children to be protected against self-harms unless everyone else is also protected against just the same self-harms in just the same ways. Could a reasonable person really deny that? Could a reasonable person believe it's immoral for society to legally protect children from the harms they might do to themselves by smoking or having sex with adults, without failing to 'protect' normal adults from those harms? I'd say this is (at least) way more counter-intuitive and silly even than denying the moral legitimacy of nation states. Unless the anti-open-borders proponent has to commit to something equally counter-intuitive and silly it's not a stand-off. Of course you are right that there's a stand-off of some kind if the opponent just 'bites the bullet' on every seemingly absurd commitment; and I agree that no argument about this kind of thing is rationally compelling, if that means the argument must be accepted on pain of violating some basic principle of rationality or logic. But it's not a stand-off under some less demanding idea of reasonable-ness. If one view commits us to something that's just utterly silly, but the other does not, the first view is less rational or reasonable than the second...no?

[BV]

Ostrich,

We surely will agree on the following narrowly logical point: A logically implies B iff ~B logically implies ~A.

Now let A be a conjunction of premises, and B a conclusion that follows from those premises. I say the argument from A to B can be run in reverse with no breach of logical propriety, meaning that the argument from ~B to ~A is equally valid. Deny the conclusion and deny one or more of the premises.

This much is very clear. Agree?

[Malcolm Pollack]

I think 1 is simply false, for the reason that the people of a nation, and their nation's laws, are essentially (or, at least, to the extent that they choose to be) a closed system.

A nation may choose to grant outsiders certain protections and privileges, and all wise and civilized nations do indeed offer such considerations to legitimate visitors. But even so, such people are simply not part of the system in the way that citizens and legal residents are -- and those who are there without permission are already in violation of the host nation's laws, and so have very little ground to expect any such generosity. They tarry at their peril.

To skip over all of this, as premise 1 does, and further to insist that the premise as written is plainly and intuitively axiomatic, simply invalidates the argument, at least as far as I'm concerned. (I imagine that goes a long way toward explaining why none of us finds it rationally compelling.)

Moreover, premise 2 as stated refers not even to illegal aliens within a nation's borders (which can be a more complicated situation for a generous people, as we have seen), but to those standing outside. Being outside, such people are not subject to the nation's laws at all -- they are not about to be arrested, or sued, or given a summons. What they are confronting is not a system of laws -- on what assumption do a nation's laws extend beyond its borders? -- but a barrier.

[The Dark Ostrich]

>>We surely will agree on the following narrowly logical point

That is completely obvious, and no one denies.

The question hangs on Aristotle's principle (Posterior Analytics somewhere) that the premises should be more obvious than the conclusion. If so for the A implies B case, there is no stand-off.

You are claiming, by contrast, that ~B is obvious. So there is a stand-off.

However, as a point of fact, when I discussed this with a liberal she thought that A is obvious in the case of barbarians attacking the gates of Rome. So she accepts the idea of national sovereignty in that case. But she rejects it in the case of immigrants crossing in the boat to Rome, up the Tiber. In fact she claims that is the whole problem: it is completely wrong to equate migrants with barbarians.

[BV]

Ostrich,

I sidestepped the real point of your comment @2:58 because it is so bloody difficult. The logic is clear; the dialectics is not.

I will write a separate entry on the notion of a stand-off.

The argument you gave us from Berkson is really too murky to evaluate as Jacques showed.

[BV]

Malcolm,

I agree with you. But I have a question about U. S. law. Citizens have the legal right under the Constitution to freedom of assembly. Do illegal aliens? I am inclined to say that they ought have no such legal right because they are not citizens.

What does current U. S. law say about this?

[BV]

Jacques,

Any comments on my presentism post? If you have any, put therm there, not here. The murky argument from Berkson is not worth any further discussion.

[The Dark Ostrich]

Malcolm sez "Being outside, such people are not subject to the nation's laws at all"

That's the key point. Those who have the patience to listen through Berkson's tedious lecture will understand he is not talking about illegal immigrants, i.e. those inside the country's borders and thus subject both to legal force and legal protection do not fall within his argument.

He is talking about those who besiege the gates of Rome. Outside the empire. He believes that, even outside the gate, they are subjected to its laws, in virtue of being physically prevented from entering, and thus are entitled to its protection.

[john droan]

isn't there a simple reductio for this? if that argument is sound, wouldn't it entail, for example, that anyone who can be forcibly excluded from the premises of my house would so far forth actually have a right to enter my house?

that said, the argument fails on purely legal grounds: illegal aliens are subject to the protection of the laws: it is only the rule of (US) law that makes it illegal for US citizens (e.g. border guards and police) summarily to execute border-jumpers; without such a law on the books - without a general recognition of illegals as "persons", and without a general proscription against harming persons in certain ways, any non-citizen could just be treated as a non-entity, and killed (or maimed, or tortured, or...), in much the same way as unborn children can be.

of course, as jacques notes in his 1*, the argument is not militating for just any protections for illegals, but certain very specific ones. but that is as may be: as currently stated, it fails.

[Angra Mainyu]

Hi Bill,

I agree this argument is clearly unsound (even if the premises are unclear, because on any reasonable interpretation, one or the other or both are false). The best argument I've seen against most limits on immigration (though not entirely against borders, since it's not against, say, preventing gang members from entering a country to commit crimes) is Huemer's. I don't think it succeeds, but if you're looking to engage your opponents' strongest arguments on this matter, I would suggest that one.

[BV]

Thanks for the comments, Angra.

I address an argument of Huemer's in an earlier entry: http://maverickphilosopher.typepad.com/maverick_philosopher/2015/11/a-case-for-open-immigration.html?cid=6a010535ce1cf6970c01bb08959e44970d#comment-6a010535ce1cf6970c01bb08959e44970d

[BV]

Let me add that there is a difference bertween cleverness and wisdom. There is no wisdom on the Left, and little among the libertarians. I'll grant you that Bryan Caplan is a very clever fellow. But no one who give the 'bathtub argument' counts in my book as having basic good sense.

See here: http://maverickphilosopher.typepad.com/maverick_philosopher/2017/03/terrorism-and-the-bath-tub-argument.html

[Angra Mainyu]

Thanks for the replies and the link.

In the full version of his argument (http://spot.colorado.edu/~huemer/immigration.htm), Huemer he goes to considerably greater lengths to defend his claims, even against several objections raised in the comments of your previous post. But I think a significant problem with unrestricted immigration is the predicted consequences in terms of social change in the country to the recipient country, since massive waves of
immigrants are very likely to take much of their social practices with them rather than adapt, and life in many places is much worse than in other precisely as a result of some (many) of the social practices in those places. That, I think, justify many restrictions (there are other reasons too). In short, the recipient country is likely to get a significant increase the social illnesses suffered in the countries of origin.

As an aside, I don't think that a person who would otherwise likely die of thirst has a moral obligation not to take some of your water if you have more than enough of it for yourself, even if she is in that situation due to her own mistakes (and if her children would otherwise likely die of thirst, I think she has a moral obligation to take your water if she can do so without inflicting serious injury on you, even if their predicament is the result of her negligent behavior). Perhaps, this or other similar differences in intuitions explain why you find Huemer's argument weaker than I do, even if ultimately I also don't find it persuasive.

[BV]

Angra,

I agree entirely with your first paragraph. *Pace* the libertarians, one cannot reasonably think of immigration in solely economic terms.

As for your second para, I didn't talk about any children -- that change makes a difference.

I have a duty not to harm, but do I have a moral duty to help? Not clear. But it is an important question not easy to answer. I suppose my answer will be that it is (usually) good to help people, which is why I contribute to charities I have vetted, but that such charitable activities are supererogatory.

[Angra Mainyu]

Bill,

I tend to agree with your assessment that donations are supererogatory (at least usually). On the other hand, I think if, say, I see an accident and a victim appears seriously injured and incapacitated and no one else is helping, I have (other things equal, no other emergencies, etc.) an obligation to at least call 911 (or do more, if I know how to), so I think there are some obligations to help in some cases, even without previous agreement or promise. But I generally don't think giving to charity is among those (though that might depend on your resources; perhaps, if you are a billionaire, you have an obligation to give something).

Also, in the case of water or food, I think the obligations of one party do not always correspond with those of the other. For example, if someone asks for some of your food and say that they or their children are actually starving, depending on the circumstances I think you might not have an obligation to give it to them. In fact, you might not even have good reason to believe that their situation is as they say. However, they might also not have an obligation not to take it from you if they can without harming you. I think this partly is due to the differences in availability of information to different parties, and partly due to different obligations to third parties (e.g., one's children, elderly parents, etc.).
I do agree it's a difficult question(s).

Regarding thinking of immigration in economic terms, Huemer does address the matter of cultural preservation and other non-economic issues. I think he goes wrong in that he underestimates the likelihood of some of the negative consequences of generally unrestricted immigration (though he does propose moving gradually towards open borders rather than quickly. But I don't think that would not resolve the problem, even if it would be less bad than quickly).

[Bill Tingley]

Malcolm,

This is an answer your question about what legal protections U.S. law affords an illegal alien. The U.S. Supreme Court has long settled the issue. An illegal alien has the same rights as any other alien outside the borders of the U.S. In short, none. However, an illegal alien is provided the minimum due process to determine whether or not he is in fact an illegal alien (e.g., a traveler who lost his visa) or is a person eligible for entry as an asylee or refugee. The fact that the courts, law enforcement, and bureaucrats in the U.S. routinely ignore settled law is another matter.

Bill T

[BV]

Bill T,

That was actually my question to Malcolm, but thanks for the answer!

SCOTUS made the right call. And now we have a POTUS who might enforce federal law in rogue states such as as the once great & golden state of Californication.

[Angra Mainyu]

Bill T.,

I'd like to ask which SCOTUS ruling(s) you have in mind.

In Plyler v. Doe (source: http://caselaw.findlaw.com/us-supreme-court/457/202.html ), they ruled that "Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term. This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws."

One may agree or disagree with the SCOTUS, but it seems clear that according to the Court, illegal immigrants do have significant Constitutional rights. Later cases (in particular, Kerry v. Din) do not seem to have reversed previous law in that regard, even if they rejected the specific claims made by some illegal immigrants. Do you think they did reverse it?

That aside, when illegal immigrants are accused of a crime, it seems to me they have the right to due process even if it has already been established that they are in the US illegally. They can't lawfully be sentenced to death, imprisonment, etc., if they get accused of armed robbery or murder without previous due process to establish whether they committed armed robbery or murder; establishing that he is an illegal immigrant is not enough.

I could give other examples, but I'm thinking perhaps there is a misunderstanding, and you meant to talk about some specific set of protections?

[Malcolm Pollack]

I'm a bit tardy in returning to this discussion, I'm afraid. I'm curious to explore the SCOTUS opinions on all of this.

Bill, you asked whether illegal aliens have freedom of assembly. They certainly do in practice. For example, Chuck Schumer lives a few blocks from my home in Brooklyn. After his cave-in on the shutdown, there was a mob of illegal aliens picketing his apartment building, interfering with traffic, etc.

What I'd like to see one of these days would be for actual U.S. citizens to be granted freedom of association: to be able to hire and fire employees, and serve customers, as they choose; to have male-only clubs if they prefer, without persecution; and so on.

[BV]

Malcolm,

My question was quid facti, not quid juris: do illegals have a legal *right* to freedom of assembly. Bill T above says no, Angra says or seems to say no.

I don't know enough about it to have a (justifiable) opinion.

You live near Chucky Schumer? Go over there and try to reason with him. (I'm joking of course.)

[Malcolm Pollack]

Bill,

I don't know either, but it's a nice occasion to read some Supreme Court opinions, which I rather enjoy doing.

On the other hand, where the "rubber meets the road", of course, is how things are done in practice. The Consitution is little more than a "serving suggestion" at this point, it seems.

Yes, Chick and Iris Schumer and I live in the same little neighborhood, and our kids went to the same schools. We actually used to bump into each other from time to time, at parent-teacher conferences and the occasional dinner-party, back when he was still a nobody. How I wish he still was!

[Angra Mainyu]

Bill,

I didn't mean to comment on whether illegal immigrants have freedom of assembly according to the US Constitution (or generally, US laws). I'm not sure whether they do, though I think probably so, albeit in a limited fashion.

Of course, since they do not have the right to remain in the country, that restricts severely any freedom of assembly (because even when they are trying to assemble, they could be lawfully be arrested and later deported). However, I think this is an indirect restriction. To go to the heart of the problem, I think one should ask questions such as: If Congress were to pass a law making it a felony for illegal immigrants to peacefully assemble, would that be a violation of the First Amendment?

Tentatively, I'm inclined to think probably so, but I'm not an expert on the matter, and there seems to be no case in point (at least, I haven't been able to find one after a reasonable amount of searching).

[Bill Tingley]

Bill V.,

I see my error. The brilliance of the discussions at MP occasionally blind me to the obvious.

Angra,

You hang too much on the word "person". Setting aside that Plyler v. Doe is legislation from the bench, Brennan's statement that illegal aliens are "persons" under the Fifth and Fourteenth Amendments merely acknowledges what had not been disputed. As a "person" an illegal alien is guaranteed due process -- e.g., a deportation proceeding. He is also guaranteed equal protection of the law -- i.e., the law protects him against offenses to his person and property as it does anyone else within a U.S. jurisdiction.

Through judicial fiat, in a sloppy opinion, Plyler mandated a social policy by stretching out of shape the intent of equal protection to apply it to public funding the education of minor illegal aliens. The rationale was that these particular children were not responsible for their unlawful presence in the U.S. and it would be a terrible thing if they grew up illiterate. At best Plyler distorted equal protection of the law to include the public benefit of education for so-called innocent illegal aliens. What it did not do is challenge the bedrock case law that illegal aliens are "persons" only for the purposes of the constitutional guarantees of due process and equal protection.

And what Plyler may have given to minor illegal aliens, the hard fact that they like all illegal aliens remain subject to immediate detention and then deportation (excluding DACA) takes away. No Supreme Court has changed the federal government's authority to deport illegal aliens promptly. Granted, an illegal alien could speak out, assemble, and attend school per Plyler without legal consequence for doing so before he is detained and deported. But engaging in those activities has no effect on his illegal status.

In short, an illegal alien will not run afoul of the law doing any number of things while within the U.S. Whether facilitating his peaceful activities is good social policy, as in Plyler, does not change one whit that he is subject to deportation once federal authorities catch up with him. [I note that you appear to draw a similar conclusion in a later post.]

[Angra Mainyu]

Bill T.,

Even if Plyler v. Doe is legislation from the bench, the reason I brought it up is because it (and other rulings) hold that illegal immigrants have some constitutional rights. Since you had said they had "in short, none" according to the SCOTUS, that seemed to contradict your claim, though as I said, I thought maybe there was a misunderstanding and you did not mean to claim they had essentially no constitutional rights (other than the minimum due process you mentioned, in order to determine whether they are illegally in the US).

Given your reply, I think there probably is a misunderstanding. For example, you say that there is "bedrock case law that illegal aliens are "persons" only for the purposes of the constitutional guarantees of due process and equal protection.". But that does not challenge what I'm saying. I made no claim for or against their having more rights than those two according to SCOTUS, but that is already a considerable amount of protection - how much is debatable, given the different takes on due process and equal protection in different rulings.

The rest of your points also suggest miscommunication. I did not mean to suggest that SCOTUS had limited the federal government's authority to deport illegal immigrants promptly [which you seem to have noticed given your comment about my later post], or that they were not subject to immediate detention and deportation.

So, I'm not sure what our disagreement actually is about, regarding the position of the SCOTUS (in context, I suspect there might be some disagreements about some of the moral questions involved, but that is another matter).

[Bill Tingley]

Angra,

To clarify, I responded "in short, none" within the common understanding here that, of course, an illegal alien cannot be murdered or robbed. He has the same protection of the law as all others within the U.S. in that regard. Hence, the citation the Supreme Court citation of the Fifth and Fourteenth Amendments as support for recognizing the basic dignity of all persons.

The fact that an illegal alien can jack his jaw on public soapbox and not suffer any penalty for doing so does not lead to the conclusion that he has a First Amendment right of free speech. He has no means of forcing the government to recognize it, because the government's power to deport him trumps his recourse to the courts. As a matter of positive law, an unenforceable right is no right at all. (Yes, the rationale for the rights protected in the Constitution is in natural law, but the Constitution itself is positive law.)

That is why I disputed that an illegal alien has constitutional rights: He has none except the basic protections of the law for crimes committed against him -- which every decent country extends to everyone within its jurisdiction. So there probably isn't much disagreement between us.