The Johns agree: Rawls, Finnis, and Locke on open immigration from Mexico to the United States.

Author:Garrett, James

    The United States should have a law allowing for open immigration into the United States from Mexico. The movie Born in East L.A. has a scene depicting La Migra (Immigration and Naturalization Service Officers) picking up Cheech Marin. The officers are in the process of picking up undocumented workers (illegal immigrants) take Cheech along with them. The officers deport him, but leave him to his own devices to cross the border clandestinely back into his home turf of east Los Angeles (1) The United States wastes money on La Migra and illegal immigrants while destroying lives in the process. (2) An open immigration policy will increase the wealth and strength of the United States and immigrants.

    1. Historical Background

      Everyone in the United States is an immigrant or the product of immigration. Some people believe that humans originated in East Africa between 99,000 and 200,000 years ago. (3) Others believe that humans originated in the Garden of Eden--Iraq. (4) No matter the worldview, everyone in America, including Native Americans, is a product of immigration.

      The argument this paper presents requires historical background. Fights, debates, and reforms over immigration have persisted in the United States since its beginning. In 1790, a free white person only had to go to a common law court within his or her state of residence to apply for naturalization so long as they had lived within the United States for a minimum of two years. (5) In the years that followed, many Africans were forcibly brought to this country. Yet, this forced migration ended in 1808 when the United States banned slave importation. (6) The Thirteenth Amendment outlawed slavery throughout the United States (7) and in 1868 these newly freed slaves were granted citizenship with the ratification of the Fourteenth Amendment. (8)

      Irish, German, and other European immigrants flooded into the United States just a decade and a half before America's own civil war due to famine, revolution, and industrialization. The native-born resisted every wave of ethnic groups. (9)

      A shortage of American laborers during World War II prompted the Bracero Program in August 1942. In 1848, the United States signed the Treaty of Guadalupe Hidalgo, incorporating 80,000 Mexicans into the United States without their consent. (10) After an estimated 3 million Mexican laborers migrated to the United States, exploitation and overwhelming numbers of migrants prompted the United States to end the program in 1964. (11) Exacerbated by a shared and porous border, the flow of migrant workers continues, resulting in a massive number of undocumented immigrants present in America today.

    2. Outline of Theories

      This paper presents three legal theories in an attempt to argue the United States must have a law which allows for open Mexican immigration: John Rawls' A Theory of Justice argument, John Finnis's natural law argument, and John Locke's natural rights argument.


    John Rawls was born in 1921 in Baltimore to the prominent attorney William Rawls. (12) Two of Rawls siblings died from illness that they had caught from him. (13) During World War II he fought as an infantryman in the Pacific Theater, earned a Bronze Star, witnessed the aftermath of the Hiroshima atomic bombing, was promoted to sergeant, and later demoted to private when he disobeyed an order to punish a soldier he thought undeserving of punishment. (14) 15 These types of events make a man postulate a theory of justice. An understanding of Rawls' theory of justice as fairness is required to understand a "Rawlsian" argument for open immigration.


      A society must start in the original position, behind a veil of ignorance, in order to achieve justice as fairness. (15) The original position is a purely hypothetical situation. It is not some untamed place in the wild where a group of people decided to build a town. (16) Rawls links the original position to the contractarian tradition that is associated with the philosophy of rights. (17) The original position provides a secure grounding for basic rights. (18) In the original position no person knows his societal position or social status, nor does he know how natural assets and abilities are dealt out. (19) Rawls further assumes the parties "do not know their conceptions of the good or their special psychological propensities." (20) Rawls refers to the unknowingness of the parties of the original position as the veil of ignorance. (21) According to one author's interpretation of Rawls' original position, "[t]hese people know they have interests and plans, but they are behind a 'veil of ignorance,' not permitted to know their class, race, sex, religion or the precise content of their plans of life." (22) It is used as a device to arrive at fair and unbiased judgments. (23) Thus, principles of justice must be agreed to in an initial situation that is fair. (24)

    2. Primary Goods

      At the original position, certain goods are distributed equally among those entering the new society. Rawls assumes everyone wants these goods, regardless of their future plans. (25) Rawls further assumes the primary goods at the original position include social and natural goods. He lists social primary goods to include: liberty, opportunity and powers; income and wealth; and the bases of self-respect. He lists natural primary goods to include: health and vigor, intelligence, and imagination. (26) Further explanation is required to understand the importance of liberty.

      First, Rawls holds liberty has priority over the other primary goods. (27) He asserts, however, that income and wealth have priority up to the point that everyone has his sustenance met; then liberty takes priority and continually gains priority as income and wealth increase. (28)

      Black's Law Dictionary defines liberty as freedom from arbitrary or undue external restraint, especially by a government, and defines natural liberty as the power to act as one wishes, without any restraint or control, unless by nature. (29) One can argue liberty encompasses many attributes. Rawls includes political liberty, freedom of speech and assembly, freedom of the person, and the right to hold property within the definition of liberty. (30) Norman Daniels asserted liberty includes the freedom of movement within a country and across its borders, as well as freedom of choice in personal life decisions. (31) Justice William Douglas, pointing to many sources, stated that "[t]he right to travel is a part of the 'liberty' of which the citizen cannot be deprived without the due process of law under the Fifth Amendment." (32) Zechariah Chafee expressed the importance of the freedom of movement, stating that "[freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads." (33) Because the distribution of goods and liberty have been discussed, we must turn to the question of how, or by what, Rawls believed these goods are to be distributed.

    3. Two Principles of Justice

      Rawls assumes two principles of justice are chosen in the original position and continues to improve the principles' clarity as he progresses through his writing. He initially states that "each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others" as the first principle. (34) Rawls further states that "social and economic inequalities are to be arranged so that they are both reasonable," and they are "expected to be to everyone's advantage, and attached to positions and offices open to all." (35) In Rawls' original position, these two principles are chosen and used to govern the distribution of primary goods. Rawls explains that all social values--all primary goods--are distributed equally, unless unequal distribution of one, or all, of these goods is to everyone's advantage. (36) The first step in the distribution process, then, is to distribute all primary goods equally. (37) This step provides an equal starting point that allows the original group to move to the second principle.

      The second step requires the original group to watch for instances in which inequalities would create a better situation for all. (38) Rex Martin explains the deviation--inequality in a particular good--is allowed "only if the deviation makes available a greater amount of the very same good to each and all." (39) Thus, any inequality is permissible if, and only if, the overall position for everyone improves. The improvement in overall position compensates men for the liberty lost.

    4. The Difference Principle

      Some men are born tall, strong, and healthy--to rich and powerful families. Some are born with a propensity to illness, weak, and with learning disabilities--to poor families. Some are born between these extremes. Rawls states these natural distributions are neither just nor unjust. (40) Instead, how one deals with these facts is just or unjust. (41) Thus, society "must give more attention to those with fewer native assets and to those born into the less favorable social positions." (42) Rawls explains the difference principle as "an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution." (43) The difference principle requires a social system in which a man born with fewer natural assets or born into a lower class in society receives compensating advantages in return. (44)

    5. Global Civil Society

      Black's Law Dictionary defines a society as a community of people, state, nation, or locality, with common cultures, traditions, and interests. (45) Rawls makes the simplifying assumption that the society within his theory is self-sufficient...

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