Immigration, Adoption, and the Permissibility of Excluding Newcomers by Birth

Abstract

A recent challenge to statist arguments defending the right of states to exclude prospective immigrants maintains that such statist arguments prove too much.  Specifically, the challenge argues that statist arguments, insofar as they are correct, entail that states may permissibily exclude current members' newcomers by birth, which seems to violate a widely held intuition that members' newcomers by birth ought automatically to be granted membership rights.  The basic claim is that statist arguments cannot account for the differntial treatment between prospective immigrants and newcomers by birth.  Call this the newcomer-by-birth objection.  This article rejects the newcomer-by-birth rejection.  It begins by sketching the precise extent to which the objection applies to statist arguments.  It then examines the case of newcomers by birth and argues for a principled basis for treating them differentially from prospective immigrants such that a right to exclude prospective immigrants need not entail a right to exclude newcomers by birth.  But this distinction holds only in most cases, not all, and therefore the newcomer-by-birth objection is not entirely defeated.  With respect to the cases in which the objection does hold, it is argued that such cases are morally akin to international adoption, and thus morally benign.  All considered, statist arguments easily survive the newcomer-by-birth objection.