Does anyone deserve to be a pariah? Many supporters of laws forbidding the employment of or the denial of public benefits to illegal immigrants would say yes. They would say that people who sneak across borders with the aim of taking advantage of the benefits they might find there deserve to live more miserable lives than their fellow nationals legally admitted to the same territory. Illegal immigrants deserve their pariah status, on this view, not because they are immigrants, but because they have broken the law. Owen Fiss argues that the Constitution does not support such reasoning. As long as immigrants are here, whether or not they are here legally, an antisubordination principle following from the Equal Protection Clause implies that no person can be treated differently in access to social benefits or economic opportunities.
I agree generally with Fiss’s humanist sentiments. I also applaud his use of the principle of antisubordination rather than a principle of nondiscrimination to adjudicate group-based legal classifications. Despite my general agreement with Fiss’s conclusion and his approach, however, I do not think he has convincingly shown that the principle of antisubordination should apply to illegal immigrants in the same way that it applies to everyone else residing in the sovereign territory of the United States.
There is a proper difference, Fiss says, between being a member of the political community and being a member of the society. While it is legitimate to set certain conditions of language, learning and loyalty on political rights, Fiss suggests, social membership itself confers social rights. Members of the society, whether citizens or not, cannot be made to suffer state-imposed social disabilities. When the state explicitly admits immigrants, they are admitted, one might even say welcomed, into the society. As members of the society the Constitution governs, they cannot be made into social pariahs. Thus the antisubordination principle applies to legal immigrants as well as to citizens.
For this argument to apply in the same way to illegal and legal immigrants alike, Fiss must be saying that illegal immigrants are also members of our society. Indeed he does seem to think this. We ought not to subjugate illegal immigrants, he say, because we want to preserve our society as a community of equals; subordinating illegal immigrants creates a social structure inconsistent with that community. But what, for Fiss, has made illegal immigrants into members of this society to whom an antisubordination principle applies? I do not see that Fiss answers this key question.
The question is key because it is precisely what supporters of laws against affording employment opportunities or social benefits to illegal immigrants deny. Legal immigrants have been admitted to the society, they would agree, but illegal immigrants have not. We have a right to deport them simply because they are not members of the society, and for the same reason we have a right to deny them social benefits.
Fiss suggests that merely being within the territory of the United States is sufficient to make illegal immigrants members of the society. But surely this is arbitrary. How can it be that one day a person is not a member of the society because he is in Tijuana, but when he has arrived in San Diego, he is a member? Surely entering the boundaries of a sovereign state does not itself make one a member of a society. Opponents of social benefits for illegal immigrants agree. These are not social members, but alien invaders. Writing social disabilities for them into law does not create a pariah status for them, on this view; it merely recognizes their status as alien invaders.
As I said above, I agree with Fiss’s policy objectives. I agree that it is wrong for the states of Texas or California actively to deny opportunities and benefits to illegal residents of those states. With Fiss I agree that this is wrong primarily because the legal residents of Texas or California are socially connected to the illegal residents, and by extension all those in the territory of the United States may be so connected. The social connection is not founded in legally bounded sovereign territory, however. Rather, those social connections are founded in the cultural, economic, familial, environmental, and communicative movements and interactions across the mountains of the southwest, or indeed across the Pacific Ocean. Citizens of Mexico or Honduras show up in Los Angeles or San Antonio because they are already connected to those places–they have been illegally recruited for jobs, or they have friends and family there, or they have traveled there with a band, or they have seen the spend-thrift gringos coming over the border themselves to pay one-tenth the wages they pay in California or to buy cheap goods under the protection of local police. The social and economic connections between people in Mexico and Central America and the Southwestern United States are wide and dense, arguably denser than my connection with either region as I sit here in Pittsburgh. A sovereign legal border does little to obstruct those connections. The same may be said for the social and economic connections between Shanghai and San Francisco or Manila and Minneapolis.
My point is that the social and economic connections that ground rights and obligations between people do not necessarily coincide today with sovereign state borders. We are in a continuous society with other people when actions and institutions of production, distribution, and communication, among others, connect us so tightly that what some of us do here is likely to affect their lives and vice versa. Those who live within the sovereign borders of the United States are socially connected in these ways to many outsiders. The policies and actions of powerful public and private institutions of the United States affect the lives of millions elsewhere, often to their detriment and our relative benefit. It is because we are already socially connected to them in myriad ways that it is wrong for us to use the law to deny them benefits others enjoy when they are here, especially when they have done no harm other than to have sought a better life. Since here the social connections do not correspond to political jurisdiction, however, I wonder whether the Constitution really can protect the moral rights of illegal as well as legal immigrants. Those who wish to work for transnational justice may do better to rely on and help construct more transnational legal institutions.