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Public Affairs Q uarterly
Volume 29, Number 2, April 2015
217
ON THE MILITARIZATION OF BORDERS AND
THE JURIDICAL RIGHT TO EXCLUDE
Grant J. Silva
The rst person who, having enclosed a plot of land, took it into his head
to say this is mine and found people simple enough to believe him, was the
true founder of civil society. What crimes, wars, murders, what miseries
and horrors would the human race have been spared, had someone pulled
up the stakes or lled in the ditch and cried out to his fellow men: “Do
not listen to this impostor. You are lost if you forget the fruits of the earth
belong to all and the earth to no one!”
—Jean-Jacques Rousseau, Discourse on the Origin of Inequality
On Sunday July 28, 2013, at the San Ysidro port of entry, the border crossing
between Tijuana, Mexico, and San Diego, California, a gathering of about
one hundred immigrant rights activists and allies (many minors, some undocu-
mented) protested the recent rise in deportations; the increasing incarceration,
criminalization and detention of undocumented immigrants; and the militarization
of the southwestern segment of the United States border. What started as a simple
march quickly escalated into mayhem when protesters approached a small fence
providing space for pedestrians to exit the edice housing the actual port of entry.
What happened next serves as a visceral reminder, an almost perfect example,
of the recent response to migratorially disobedient, “unwanted” immigrants: as
if taking a cue from popular demands that call for the construction of bigger and
better barriers along the US-Mexican border, United States Customs and Border
Protection (CBP) agents literally wielded a small metal fence, the kind that is seen
at concerts or parades, to push back and pin down protesters.1 While it is unclear
if the protesters actually crossed the barrier meant to provide ample space for
travelers—subsequent explanations for the CBP’s response make note of protest-
ers sitting on the wrong side of the barricade without a permit—the brutal and
aggressive reaction was all too apparent. Several protesters were dragged, injured,
pinned on the ground, and then arrested. With the help of a metallic fence, ofcers
of the Department of Homeland Security forcefully ended the civil protest, an
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218 PUBLIC AFFAIRS QUARTERLY
event that stands as a microcosm, if you will, for what is actually taking place
on the US border with Mexico.
This essay rst calls attention to the increasing militarization of national
borders, a phenomenon that is not exclusive to the US southwestern border with
Mexico but is occurring on national divides across the globe, especially those
situated between so-called “First World,” developed countries and “Third World,”
underdeveloped nations.2 By “militarization,” I have in mind “the use of military
rhetoric and ideology, as well as military tactics, strategy, technology, equipment
and forces.”3 A s K a r m a R . Chávez notes, “militarization suggest the intermingling
between police and military forces, so much so that police engage in military
functions and the military engages in police activity.”4 Wayne A. Cornelius pro-
vides perspective into the dangers of militarized borders when he writes:
[T]he fortied US border with Mexico has been more than 10 times deadlier
to migrants from Mexico during the past nine years than the Berlin Wall
was to East Germans throughout its 28-year existence. More migrants (at
least 3,218) have died trying to cross the US-Mexico border since 1995 than
people—2,752—were killed in the World Trade Center attacks on 11 Sep-
tember 2001.5
As Cornelius explains, the possibility of migrants dying en route to the United
States nearly doubled between 1998 and 2005. Almost a decade later, U.S. Cus-
toms and Border Protection (CBP) recorded over 6,000 deaths between 1998
and 2013 on the southwestern border (probably more since not all bodies are
recovered).6 It is for this reason that the militarization of the border is a major
concern voiced by immigrant rights activists today. It is a concern, however, that
should trouble anyone who believes that a state has the right to enforce immigra-
tion restrictions and articulate policies of exclusion, as this essay will show.
Militarized national divides are what Étienne Balibar refers to as “hyper-
borders”: fortied divisions that are meant to enclose and protect national or
geopolitical space from perceived threats.7 The primary targets of hyper-borders
are not other states but non-state transnational actors, such as individuals, groups,
social and political movements, organizations, and even industries.8 Hyper-
borders render existing walls and divides, as well as the concept of a border
itself, “complex and equivocal.”9 That is to say, amidst their hardening across
the globe, the policing of borders increasingly occurs at sites away from the bor-
der, at places such as airports, highways, workplace E-verication visa checks,
schools and universities (in terms of who is entitled to in-state tuition and who is
not), among other places. Borders are not simple lines in the sand or self-evident
divides based on historic ethnic/national groupings or geographic topography,
but “world-conguring” aspects of modern political organization that perform
an assortment of functions, some of which are obsolete and harmful while others
remain crucial to the efcacy of political institutions as we know it.10
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THE MILITARIZATION OF BORDERS 219
By calling attention to the militarization of borders, I contribute to a conceptual
re-orientation that is critical of tropes of “border security.” The latter is often a
rhetorical ploy wedded to any talk of immigration reform throughout popular
discourses in the United States, and meant to generate trepidation when put in
the context of national security.11 This reconceptualization necessitates a renewed
and more difcult ethical justication for the building of walls, the continuance
of attrition-based enforcement policies, and the devastation of communities in
the vicinity of the southern border or immigrant communities across the United
States. How does recognizing the border with Mexico as a militarized zone
change the tone of the immigration debate in the United States? My hope is that
the idea (and reality) of the US southwestern border as a militarized zone offers
a moment of reective sobriety that makes the citizenry and government of the
United States rethink its attitude toward immigrants, its demeanor regarding in-
ternational relations, and the need for transborder regional development, which
would help ameliorate the social and economic conditions of sending countries.
My worry is that some will appreciate the idea of the border as militarized, but
for all the wrong reasons, namely the concern that such a response is necessary
to deter the hordes of would be “illegals” seeking entry into the United States.
At the very least, thinking in terms of militarization repositions public debates
on immigration in ways where all participants must justify their stance without
relying upon fear-mongering tactics or already conceding the need to wed im-
migration reform and the building of walls.
In order to explore the relationship between the idea of “militarization” and
philosophical discussions of the right to exclude, the second part of this essay
critically examines Michael Blake’s jurisdictional theory of immigration restric-
tions. In light of public debates centered upon “illegal” immigration and the need
for a tougher stance at the border, Blake’s juridical framing has much to offer.
For him, the right to exclude is best situated within a state’s standing as a sov-
ereign legal institution that must effectively rule a given area and population.12
It is within the nature and workings of legal sovereignty that there are territorial
limits of enforceability, thus borders. Blake’s discussion therefore situates the
right to exclude within a theoretical framework where juridical boundaries, the
liberty of citizens, the rights of persons, and tempered instances of coercive force
are all relevant. I agree with Blake that a theoretical right to exclude does little to
justify the practice of walling as it practiced by wealthy states today. Nevertheless,
what else could this right permit if not the erecting of barriers and other coercive
mechanisms that sufciently keep out and deter would-be irregular migrants,
especially when said right serves to protect the liberties of current members? Can
the right to “exclude” really be exercised in a way that does not depend upon
coercive force? Although Blake is clear that the contours of the right to exclude
remain to be detailed,13 I believe that his rationale for even a tempered right to
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220 PUBLIC AFFAIRS QUARTERLY
exclude inevitably leads to a reduction of the border to that of champion of liberty,
the great barrier against unwanted obligations. The fact that political thinkers are
hard-pressed to answer the above questions demonstrates how entrenched political
theory and philosophy remain in border practice.
Insofar as popular discourse (and even political philosophy) remains locked in
a paradigm committed to “border security,” where borders protect the privileges,
advantages, or even the safety of current members, alternative ways of exercising
the right to exclude without depending on militarized divides will continue to
evade discussion. The shift from rhetoric of border security to that of militariza-
tion represents the kind of conceptual reframing that may channel public and
scholarly discourses into directions where novel and creative answers to how to
“exclude” within political institutions that are geographically constrained but not
necessarily fortied becomes possible.
Conceptual Framing: From Border Security
to the Militarization of the Border
Like any other politicized, popular debate, what passes for the “immigration
debate” in the United States harbors an assortment of conceptual assumptions
that reect the locale from where this debate occurs. Paul Apostolidis alludes to
this when he writes:
[T]he debate about immigration control and reform proceeded then, as it does
today, largely through native-born Americans’ statements about immigrants
and proposals for what to do to with and (less often) for immigrants. Immi-
grants, in other words, were then and remain the objects for discussion and
analysis, the targets of apprehension strategies, the dangerously inscrutable
entities whose likely responses to carrot-or-stick incentives were the subject
of predictive calculation and ceaseless debate.14
The “immigration debate” takes places within the connes of the American
imaginary, such that the epistemological underpinnings of this debate favor
native-born US citizens, a fact that precludes certain outcomes or responses in
favor of others. Proof of this predisposition is visible in the call for tougher border
security, a need articulated from both sides of the political spectrum. Rarely is
this demand questioned. In fact, although it did not survive the House of Rep-
resentatives, the most recent U.S. Senate Bill dealing with immigration reform,
The Senate Immigration Reform Bill (S. 744), would have helped to regularize
the status of many undocumented individuals, but it also commanded the use of
$46 billion for a 100 percent increase in border agents (from twenty thousand to
forty thousand), the incorporation of more surveillance and unmanned technology,
as well as the strengthening of the actual border fence. As the founding director
of Border Network for Human Rights, Fernando Garcia, pointed out, “the only
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THE MILITARIZATION OF BORDERS 221
other border that has more that 40,000 or close to 40,000 armed soldiers . . . is the
North Korea and South Korea [border],” an area also (inappropriately) referred
to as “the demilitarized zone” (the DMZ).15
Typical justications for the “securization” of the US-Mexican border highlight
the problems created by the drug trade, the persistence of undocumented immi-
gration, and the ever-present threat of terrorism. Along these lines, both Customs
and Border Protection (CBP) and Immigration and Customs Enforcement (ICE)
describe their primary mission as “protecting America.” The CBP’s priority is to
“keep terrorists and their weapons from entering the U.S. while welcoming all
legitimate travelers and commerce. CBP ofcers and agents enforce all appli-
cable U.S. laws, including against illegal immigration, narcotics smuggling and
illegal importation. CBP deploys highly trained law enforcement personnel who
apprehend more than 1,000 individuals each day for suspected violation of U.S.
laws.”16 Immigration and Customs Enforcement exists to “promote homeland
security and public safety through the criminal and civil enforcement of federal
laws governing border control, customs, trade and immigration.”17 Both agen-
cies state that their missions were dened in the wake of September 11, 2001.
In fact, neither agency existed prior to this event as both grew out what was then
Immigration and Naturalization Service (INS).
David Aguilar, the former Acting Commissioner for the CBP, explains that “the
evolution of the Border Patrol as a risk-based, intelligence-driven law enforcement
organization is part of a much larger change in the U.S. Government’s approach
to border and homeland security.” He continues: “[T]he Sept. 11, 2001 terrorist
attacks initiated a fundamental rethinking about cross-border movements and
security, including border security.”18 I cal l yo ur a tten tio n to Commissioner Agui-
lar’s use of the term “rethinking.” Customs and Border Protection is very proud
of the fact that its approach to “keeping dangerous people and dangerous things
away from the American homeland, especially terrorists and terrorist weapons,”
is, Aguilar explains, nowadays knowledge-based. Similarly, as Chief Michael J.
Fisher explains, “the principle theme of the Strategic Plan is to use Information,
Integration, and Rapid Response to meet all threats.” Fisher continues, “We
will build upon an approach that puts the Border Patrol’s greatest capabilities in
place to combat the greatest risk. We will gather and analyze Information, ensure
Integration through operational planning and execution with our international,
Federal, state, local and tribal law enforcement partners, and based on risk, deploy
the appropriate Rapid Response to the threat.”19
To what extent September 11 impacted the militarization of the border remains
a contentious issue. Drawing from Timothy J. Dunn, Chávez explains that the
militarization of the border has been “the U.S. government’s plan at least since the
Reagan administration, and has virtually nothing to do with the events of Septem-
ber 11, 2001.”20 Chávez offers as example “the Immigration and Naturalization
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222 PUBLIC AFFAIRS QUARTERLY
Services’ (INS’s) four-phase ‘Southwest Border Strategy,’ implemented post-
NAFTA i n 1 9 94 , [w h ic h ] s t ra te g ic al ly p la nn ed t o m il it a ri z e t h e US-Mexico border
in order to deter clandestine crossings.”21 One need only remind of the infamous
“Operation Wetback” (1950s), and more recently “Operation Gatekeeper,” “Hold
the Line” (both 1994), and “Desert Safeguard” (1996) to see that the United States
has been in the business of ramping-up border security for quite some time. One
can even venture as far back as José Doroteo Arango Arámbula, better known as
Pancho Villa, arguably the rst great “terrorist” of the early twentieth century,
and the infamous Zimmerman telegram, to get a sense for how long distrust has
plagued the southern US border.
While it is clear that “border securization” has been taking place prior to re-
cent concerns regarding terrorism, the rhetoric of national security as connected
to border enforcement acquired new light after September 11. As Christopher
Rudolph explains, “[t]he terrorist attacks on New York and Washington, D.C., in
2001 had a profound effect on how American national security is conceived and
the ways that immigration may impact it.”22 Since the early Cold War, Rudolph
reminds, immigration and border policies had security implications connected
to the United States’ economic, geopolitical (i.e., military defense), and societal
interests. During the Cold War, when geopolitical risks were high, there was great
need to be exible in terms of immigration policies insofar as they promoted
international alliances and served US interests. Similarly, the United States’
economic health is best safeguarded when the ow of goods, labor, and resources
can pass through borders with ease (the purpose of North American Free Trade
Agreement, NAFTA ). P os t- Se pt e mb er 1 1, h ow ev er, c ro ss -b or d er ow constitutes
a unique threat that the United States cannot afford to take lightly. And while the
economy might prefer less obstruction at the border, domestic national safety
requires not the complete closure of the border, for that would severely hinder
our economic well-being, but the establishment of more bureaucracy and policies
of regulation, that is, increased screening and tracking abilities.
Regardless of the “newfound” role the border now plays in preventing inter-
national terror, insofar as one of goals of such revamped approaches to border
securization is stopping unauthorized entry, this border-centric approach has not
been as successful. As Cornelius explains, “illegal entries have been redistributed
along the south-west border; the nancial cost of illegal entry has more than qua-
drupled; undocumented immigrants are staying longer in the United States and
more of them are settling permanently; migrant deaths have rise sharply; and there
has been an alarming increasing in anti-immigrant vigilante activity.”23 Cornelius
adds that little has been done to effectively curb employment of undocumented
people or address the extra-national reasons for immigration. What can explain
the persistence of such failed border-centric policies? Cornelius offers three an-
swers: rst, political maneuvering so as to not appear to have lost control of the
border; second, the symbolism of border security as connected to a commitment
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THE MILITARIZATION OF BORDERS 223
against terrorism; third, an insatiable appetite for cheap, low-skilled labor. He
summarizes this last point by saying “much of illegality in low-skilled employ-
ment today is ‘manufactured’ illegality: a direct function of unrealistically low
[formal immigration] quotas for low-skilled foreign workers, quotas that are set
so low for political rather than market-based reasons.”24
Rather than view increases of border agents, drones, and the building of walls
through the lens of “border security,” an idea that allows for tropes of terrorism
and national security to tantalize the latent xenophobia and jingoism of nation-
states, “the militarization of the border” marks a conceptual shift in thinking about
current responses to cross-border trafc and immigration. “Militarization” reveals
an analectical re-orientation that represents how those on “the underside of the
immigration debate,” that is, those on the receiving end of current immigration
enforcement policies and initiatives, think about what is happening at the border
and in communities across the United States.25 The argument for this conceptual
re-orientation has to do with (1) the impact the act of militarization has upon
immigrant and citizen identities, (2) the increasing dangers caused by height-
ened militarized policing of the border, and (3) the failures of a border-centric
immigration enforcement strategy. Drawing from Cornelius and Rudolph, I laid
out a brief explanation of the last two points above; Balibar’s comments on the
“production of strangeness” assist with the rst.
As he explains, the militarization of the border blurs the line between “en-
emy,” those whom militarized borders are meant to keep out, and “stranger,”
those residents or members of a polity who resemble outsiders, a kind of guilt
via racial, ethnic, linguistic, or even religious association. For Balibar, the slip-
page between the “enemy” and “stranger” leads to the production of a perpetual
kind of “strangeness” that works to alienate certain groups from ongoing nation-
formations in places like the United States.26 This phenomenon gives rise to what
Mae Ngai refers to as “alien citizens,” individuals assigned perpetual foreigner
status regardless of their standing as citizens.27 Balibar suggests that the cre-
ation of alien citizens may be “inherent to the structure of the nation-state, and
periodically activated by situations of cold or hot war.”28 Borders play a role in
the production and reproduction of national imaginings, which, in conjunction
with the production of strangeness, often take on racial, ethnic, and religious
dimensions. While borders are supposed to demarcate territorial boundaries,
when militarized, they often stand in as divides for racial, ethnic, or linguistic
differences between peoples. Borders are thereby supported or bolstered by such
things as racial, ethnic, or religious difference, even when such differences are
the product of national imaginaries. When borders assume these contexts, they
become more than just lines in the sand; they become “color lines.”29
Thinking about the border as a militarized zone where local, state and federal
agencies align themselves against external (and thus internal) threats should
generate some concern regarding the US stance on international relations, its
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224 PUBLIC AFFAIRS QUARTERLY
investment in transborder local regional development, and the country’s attitude
toward immigrants and the citizens who do not t the racial, ethnic, or religious
normativity of American identity. The militarization of the border is proof of
what Phillip Cole considers to be “a Hobbesian attitude” amongst political com-
munities at the international level.30 This attitude does not require actual war,31
but a realpolitik that “atomizes” each polity and denies the historical relations
between existing states, historical relations that may have created conditions that
led to inuxes in immigration from poorer states. In light of the history of almost
every border in the world, such a militarized stance is not surprising; almost every
border in existence is the remnant of colonial/imperial projects or war. As Jorge
Valadez put it, “[I]t is historically well established that practically all nation-states
acquired their territories through conquest, invasive settlement, broken treaties,
partitioning between imperial powers, and other morally illegitimate means. Even
those nation-states that might have acquired their territories peacefully and without
displacing pre-existing communities cannot claim to have acquired their territorial
powers legitimately, since they did not obtain the consent of the world community
to obtain exclusive control of their land and natural resources.”32 Thus there is
something inherent to national boundaries leading to the creation of “war-like”
atmospheres. Borders begin from an understanding of national sovereignty and
state membership where inter-state peace is not the primary starting point.
The idea of the border as a militarized zone places the onus upon the US govern-
ment to justify its actions without fear-mongering tactics that prime a particular
ideological response. As Chávez points out, “[i]f more people understood how
militarization works and the careful way that the rhetoric of security disguises its
material impacts, it is likely that the US government would be forced to be more
accountable to its people.”33 For Chávez, “the problem with the emphasis scholars
place on analyses of the rhetoric of security is that it enables state apparatuses
and conservative ideology to dictate the framing of discussions and debate.”34 I
cannot underscore this last point enough. Nevertheless, I am not only concerned
with the ways in which conservative ideology dictates the terms of the immigra-
tion debate. The more we remain stuck within a paradigm of security, the more
borders will be thought of only in ways that remain connected to the well-being
and prioritization of the interests of the nation or citizenry that comprise a state.
This prioritization should be untenable, since it primarily privileges those benet-
ting from historical contingency.35
“Securization” is a simplication of the border, a reduction of complexity.36
Borders provide an assortment of functions that remain crucial to the workings
of political institutions. They demarcate the territory that a state has control over,
provide juridical limits to political and legal power, allow for the efcacious
dispersal of burdens and benets for members, and even play a role in the cre-
ation of national identities, in addition to other functions. Focusing on security
reduces the border to a single function, one that over-determines the prospects
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THE MILITARIZATION OF BORDERS 225
for immigration reform such that no reform is possible without a political and
nancial commitment to building walls. With the demand for border security in
mind, Tim Canova writes:
The proposed separation fence may or may not succeed at walling off “the
other,” the would-be immigrant from south of the border, but it does represent
a symbol of exclusion, a failure of reformist imagination, and the stiing of
any broader discussion about the meaning and boundaries of national citizen-
ship—the very nature of rights and duties of citizens in a time of complex
change and globalization. . . . I argue that border control should be part of a
far wider discourse, one that draws on multiple disciplines and perspectives
to re-imagine the range of creative possibilities for reforming our borders
and the boundaries of citizenship. Such inquiry, comparative and historical
in nature, requires a degree of humility. It recognizes that how we presently
structure relations with our neighbors may not be ideal and we may learn from
the experiences of other people in other times and places.37
In the next section, I offer example of how political philosophers inadvertently
perpetuate the above reduction when justications for the right to exclude remain
locked in paradigms that view the central role of the border a the protection of the
liberty of citizens. Ultimately, my goal is to ask if the militarization of the border
is a product of the right to exclude, or does the right justify militarization?
The Juridical Right to Exclude and the
Militarization of the Border
In “Immigration, Jurisdiction, and Exclusion,” Blake provides an argument for
a tempered right to exclude, that is, one that cannot discharge the claims of all
would-be immigrants, especially those from poorer and oppressed countries,
nor can it justify the practice of walling as it takes place today. His argument
is predicated on (1) the nature of states as sovereign legal communities, which
necessarily implies territorial bounds and a stable population over which laws are
enforced; and (2) losses of liberty accrued by current members of a state when
its laws recognize the rights of all persons within its territory, regardless of their
alienage or citizenship.
I appreciate Blake’s view for two reasons. First, he is critical of deontic asser-
tions of the right to exclude that begin from shared ideas of belonging or personal
desires regarding whom one wants to associate with or not in civil society.
Instead, Blake starts with “facts on the ground,” what is the case and not what
ought to be: political communities as sites of shared liability and obligation that
are “bound together by ties of law and politics rather than simply by the shared
understanding of its inhabitants.” 38 This appeal to fact provides a legal positivist
orientation that will prove to be valuable later on. Blake, however, intends for
this to serve as a criticism of Christopher Heath Wellman’s emphasis placed upon
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226 PUBLIC AFFAIRS QUARTERLY
the freedom of association, a freedom that, as Blake points out, is at times tamed
by anti-discrimination laws.39 Second, Blake is attentive to the fact that persons
and not citizens are the bearers of rights and civil protections in liberal states, a
point that is hard to nd in most philosophical discussions of the ethics of im-
migration.40 Blake recognizes that a state may be under a universal obligation to
not violate human rights in general, but it is not under a particular obligation to
hold as equal the rights of all persons in the world, just those within its jurisdic-
tion. Blake qualies this as equality needing “to be made operational in a world
of territorial states.”41 This point also connects to the efcacy of states, since it
is easier to control or enforce laws over a portion of humanity and not all of it.
Moreover, one cannot enforce laws in areas beyond one’s jurisdiction.
Blake limits his argument to an understanding of the state that does not presume
a right to exclude. Instead, drawing from the Montevideo Convention (1934),
he begins with an understanding of the state that necessitates it to be an effec-
tive government capable of exerting coercive control over a particular part of the
world’s surface populated by a particular group of people over whom that control
is exercised.42 He writes: “Whatever else a state may be—a site for culture, a par-
ticular sort of self-understanding, a particular historical project—it is at its heart
a jurisdictional project, in that it is dened with reference to a particular sort of
power held over a particular sort of place.”43 Lon Fuller said something similar in
“The Case of the Speluncean Explorers”: “Jurisdiction rests on a territorial basis.
. . . It is feasible to impose a single legal order upon a group of men only if they live
together within the connes of a given area of the earth’s surface. The premise that
men shall coexist in a group underlies, then, the territorial principle, as it does all
of law.”44 The territorial dimension is paramount, and, even though Blake does not
mention this, I think that this is especially important to underscore for developing
nations as a means of protection from nations with imperializing tendencies, sort
of an argument for asymmetrical borders (or perhaps just border symmetry) that
protect the developing world from exploitative, neoliberal economic expansion.45
The categorical extension of legal protection to all persons that are within the
boundaries of a state is also crucial to Blake’s view. As a site for the ourishing
of a particular group of humans, a view akin to Aristotle’s understanding of the
purpose of the state, states must preserve the liberty of their current members
as much as possible while also respecting the rights of those persons within its
jurisdiction. Insofar as a state recognizes the rights of nonmembers within its ju-
risdiction and does not limit rights to current members or citizens only, all people
within the boundaries of the state are capable of articulating rights-claims (think
in terms of equal protections as found in the Fourteenth Amendment). These
claims truncate the liberty of current members by imposing obligations upon
them, thereby impinging on their freedom. He writes: “[O]ne who enters into a
jurisdiction imposes an obligation on those who are present within that jurisdic-
tion: an obligation, most crucially, to create and support institutions capable of
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THE MILITARIZATION OF BORDERS 227
protecting and fullling the rights of the newcomer, and then to act within these
institutions so as to ensure that they do in fact defend these rights.”46 Insofar as
legal institutions may rightfully enforce these obligations when one does not
comply, coercion remains an option. Blake focuses not on the morality of being
obliged but on the act of obliging others. Immigrants impose upon others when
they enter into the premises of a state, and as such, they ought to be prepared to
provide a compelling rationale.47 As a result, current members of a state have a
license to avoid accruing further obligations whenever possible. Blake is adamant
that this is not about the accrual of nancial costs, but moral and legal obligations.
“If we are legitimately able to exclude unwanted would-be immigrants, it will
be because we have some right to refuse to take this sort of new obligation.”48
This is seemingly where the territorial dimension becomes relevant again, since
not being within a jurisdiction (either because one was denied entry or perhaps
removed) would free up the accrued obligation.
In sum, when immigrants, wanted or not, enter the premises of a liberal state,
they are afforded basic rights and protections that truncate the liberty of current
members. The current inhabitants of a state have a license to prevent unwanted
migrants from entering into their domain, especially when not doing so truncates
their liberty. The right to exclude stems from the right to not accrue additional
rights-claimants or be placed under unwanted obligations. Blake insists that this
right will not be as effective in excluding those from oppressive and underprivi-
leged regions since these will amount to compelling reasons for their imposition.49
He also explains that appealing to improvements to society made by would-be
immigrants who nonetheless impose additional obligations does not work.50
At this point, I worry that there is a bit of slippage in Blake’s argument. All
along, he is cautious not to presume a right to exclude but wants to deduce it from
the understanding of the state posited above, that is, the state as “an effective
government able to exert political and legal control over a particular jurisdic-
tion.”51 In articulating the right to exclude, however, Blake infers this right from
the fact that a state is obliged to respect the rights of all those who fall within its
jurisdiction.
Why safeguarding the freedom or liberty of current members takes priority
over nonmembers remains an open question. I do not mean to suggest that states
should take the freedom of nonmembers as seriously as members. This is imprac-
tical, as states are under an obligation to recognize the rights not of all humans
but only those within its borders. Nonetheless, why do current members have
a privileged status in Blake’s argument such that we should worry about their
loss of freedom? Does their current standing as members drive their privilege
status? If so, this must be ethically justied. Similarly, while pointing out that
one does not have a right to enforce limits on childbirth even though every time
a child is born in my state, I lose a bit of my freedom, Blake admits that there are
certain obligations we cannot help but accrue. Why co-members are the relevant
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228 PUBLIC AFFAIRS QUARTERLY
community for moral consideration remains to be seen. Again, appealing to the
parents’ standing as members begs the above question.
More poignant to this paper is the question regarding how to enact or enforce
a right to exclude. As Blake writes:
Even if legitimate states have a right to exclude unwanted would-be immi-
grants, much work needs to be done to gure out the contours of that right.
It is possible for us to have the right to exclude, after all, and still question
whether or not that right is able to ground a particular exclusionary policy. We
might ask, after all, whether the right to exclude allows the use of a particular
program of enforcement; the militarization of the southern border of the United
States, for example, might be morally problematic even if the United States
is permitted to exclude migrants.52
I appreciate these comments greatly, especially since they ask about the possibil-
ity of exclusionary tactics that do not rely upon militarization. However, insofar
as the goal of a right to exclude is to maintain the freedom of current members,
what else could this right entail if not the creation of walls and other coercive
mechanisms that hinder the freedom of movement of migrants? Again, it is the
movement of people across tracts of land claimed by states that leads to the loss
of freedom for current members. What else besides stopping their movement can
the right to exclude lead to? While Blake may not want to justify the practice of
walling as it is practiced by wealthy states today, I do not see how he can avoid it
in light of the territorial basis of contemporary states. What makes things worse is
that for Blake, the right to exclude is fundamentally about protecting the liberty
of existing members of a polity. I worry that this all too easily falls prey to a
model of securization that justies morally problematic practices of walling on
account of protecting the nation. While one way of putting it might be to argue
that the rights of persons within a jurisdiction, regardless of the alienage or status,
impinge on the liberty of members, another way to phrase it is to say that the
liberty of members depends upon the exclusion (and perhaps even removal?) of
those who would impose new obligations. While the former sounds better, the
latter is where problems arise.
So as to assist in providing for novel and creative answers to this last question,
I have tried to resituate philosophical discussions of the right to exclude in theo-
retical and practical paradigms that disembark from rhetoric of national or border
security—again, I think security makes it to easy to rationalize such practices.
The question remains: How does the fascination and fetishization of borders
conne theoretical work and perhaps even public policy to ways of thinking that
are limited by border practice? The geographer, John Agnew, put it best when
he wrote that “[borders] trap thinking about and acting in the world in territorial
terms. They not only limit the movement of things, money, and people, but they
also limit the exercise of intellect, imagination, and political will. The challenge
is to think and then act beyond their present limitations.”53
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THE MILITARIZATION OF BORDERS 229
My own view is that the militarization is indicative of the contrived nature of
borders. By “contrived,” I have in mind the way in which borders are articial
divides that require continual safeguarding. This way of thinking about borders,
as Agnew put it, is to view them as “artefacts [sic] of dominant discursive pro-
cesses that have led to the fencing off of chunks of territory and people from
one another.” He continues: “[Borders are] complex human creations that are
perpetually open to question.”54 This is not to suggest that borders are unreal
in any way; in fact, this work views borders as all-too-real, especially to the
migrants who die while trying to cross them. My point is that borders are the
sites where political, juridical, and sovereign power suddenly begins or ends. On
one side, the state is all-powerful; on the other side, this is no longer the case.55
Borders thus represent the ideals, aims, and aspirations of nations and/or states.
By demarcating the territory that is supposed to be under the exclusive domain
of a particular legal, sovereign order, borders reveal an image of what a state or
political institution thinks itself to be. It takes tremendous power and might to
uphold the ambitions that borders delineate, and therein resides much vulnerability
that only coercive force can compensate for when noncompliance abounds, be
it internal or external noncompliance. If national divides demarcate the juridical
limits of political institutions as legal sovereigns, then borders are the sites where
legitimately coercive forces meet. When these coercive institutions cannot rely
upon their status as such, militarized divides make up for any shortfalls in status.
In this sense, every border has the potential to be hyper-emphasized. Curiously,
only some are.
All this lays the ground for the following distinction (which, for spatial
constraints, I will only briey touch on). I think an argument can be made that
separates the validity of immigration restrictions or the right to exclude from the
possibility of just exclu sio nar y pr act ice s. Laws and policies derived from “a right
to exclude” may bear sufcient pedigree in terms of their legal validity, mean-
ing that we can recognize immigration policies as articulated by their rightful,
legitimate authors, but does that in anyway render them just? My goal is not to
resuscitate the debate between positive and natural law or the 1958 Hart-Fuller
debate. I argue that most theorists who posit that a state has the right to demarcate
the limits of political membership and enforce its borders speak from a perspec-
tive concerned with the validity of such law. In the context of the United States,
the federal government maintains the exclusive power and ability to enforce its
borders and determine immigration levels. Those who are critical of this view—
or at the minimum, wish to constrain a state’s right to exclude and enforce its
borders, perhaps even limit this immigration law to its proper place56—represent
a perspective that does not easily separate ethics from law. At the very least, this
essay offers the distinction between legal validity and justice in immigration law in
order to demonstrate how many of the disagreements in the contemporary discus-
sion of the ethics of immigration are products of this divide. One consequence of
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230 PUBLIC AFFAIRS QUARTERLY
this division is the ability for immigrant rights activists to situate and voice their
protests in ways consistent with the history of civil disobedience in the United
States. Thus border militarization may be lawful, but so were racial segregation
and Jim Crow laws. How do we begin to think about borders that are not simply
lawful, but just?
Marquette University
NOTES
A Rynne Faculty Research Fellowship provided by the Marquette University Center for
Peacemaking made additional research and writing time for this essay possible. I thank the
Center’s staff, especially Patrick Kennelly, Carole Poth, and Chris Jeske, for supporting
a philosopher trying to escape the armchair. True to the mission of Marquette’s Center
for Peacemaking, this essay asks, How does the increasing militarization of the border
affect the prospects for peace in the world today?
1. http://www.youtube.com/watch?v=7VRrql4fLRI (accessed December 15, 2014;
video).
2. At the onset of Philosophies of Exclusion, Phillip Cole explains that the movement
of people attempting to follow the ow of wealth to places where it pools is an important
context in which political theory must reckon with the reality of human migration. See
Cole, Philosophies of Exclusion, 1, 13–14, 165–91. In addition, as Cole explains, when
the borders between developed and developing nations are emphasized (and militarized),
they serve to perpetuate colonial divides. Thus, a thorough decolonial analysis of borders
remains necessary.
3. Dunn, Militarization of the U.S.-Mexico Border, 3.
4. Chávez, “Border Interventions,” 50.
5. Cornelius, “Controlling ‘Unwanted’ Immigration,” 783.
6. http://www.cbp.gov/sites/default/files/documents/U.S.%20Border%20Patrol
%20Fiscal%20Year%20Statistics%20SWB%20Sector%20Deaths%20FY1998%20-
%20FY2013.pdf (accessed December 15, 2014). Fiscal year 2014 had the lowest number
of deaths in the past decade and a half, with only 307.
7. Balibar, “Strangers as Enemies,” 3.
8. Brown, Walled States, Waning Sovereignty, 21.
9. Balibar, “Strangers as Enemies,” 3.
10. Balibar, “What Is a Border?,” 79; see also John Agnew, “Borders on the Mind,”
175–76.
11. Cornelius, “Controlling ‘Unwanted’ Immigration,” 777.
12. Blake, “Immigration, Jurisdiction, and Exclusion,” 104, 109 (particularly Blake’s
discussion of the Montevideo Convention).
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THE MILITARIZATION OF BORDERS 231
13. Ibid., 121.
14. Apostolidis, Breaks in the Chains, xiii.
15. Garcia’s comments can be found in the transcribed version of the interview in
Democracy Now! (Garcia, “Senate Bill Creates Path”).
16. http://www.cbp.gov/border-security.
17. http://www.ice.gov/overview.
18. U.S. Customs and Border Protection, “2012–2016 Border Patrol Strategic Plan,”
4.
19. Ibid., 6.
20. Chávez, “Border Interventions,” 49.
21. Ibid.
22. Rudolph, “Immigration and Security in the United States,” 211.
23. Cornelius, “Controlling ‘Unwanted’ Immigration,” 784.
24. Ibid., 789.
25. I borrow the ideas of “analectical thought” and “underside” from Enrique Dussel.
See Dussel, Philosophy of Liberation, 158. Dussel’s use of “analectical” is derived from
the Ancient Greek particle ano (“beyond” or “from above”) and logos (“rational account
of” or “science of”). One can think about analectical thought as “the reason or rational-
ity that comes from beyond” or “the rationality that generates analectically, that is, from
somewhere beyond the self.” For Dussel, this necessitates that it be “the reason from an
Other,” where this Other is subjected to oppressive social relations, a necessary condition
for analectical thought, that is, the “underside.”
26. Balibar, “Strangers as Enemies,” 2–4.
27. Ngai, Impossible Subjects, 8.
28. Balibar, “Strangers as Enemies,” 2.
29. See Silva, “Embodying a New Color Line.”
30. Cole, Philosophies of Exclusion, 13–14.
31. Here, I use “war” and “warlike” similar to Thomas Hobbes’s characterization of
war in The Leviathan:
WAR consists not only in battle or the act of ghting, but also in the tract of time when
it is sufciently know that there is the will to contend in battle. The notion of time is to be
considered in the nature of war as it is in the nature of weather. The nature of foul weather
does not lie in a shower or two of rain, but the inclination of rain for many days together. In
the same way the nature of war consists not in actual ghting, but in the known disposition
to ght. (83)
32. Valadez, “Immigration and the Territorial Powers,” 9.
33. Chávez, “Border Interventions,” 49–50.
34. Ibid., 48.
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232 PUBLIC AFFAIRS QUARTERLY
35. In his now famous essay, “Aliens and Citizens: The Case for Open Borders,”
Joseph Carens makes this point. He writes: “Citizenship in Western liberal democracies
is the modern equivalent of feudal privilege—an inherited status that greatly enhances
one’s life chances. Like feudal birthright privileges, restrictive citizenship is hard to justify
when one thinks about it closely” (Carens, “Aliens and Citizens,” 252).
36. Balibar, “What Is a Border?,” 75.
37. Canova, “Closing the Border,” 343.
38. Blake, “Immigration, Jurisdiction, and Exclusion,” 107.
39. Ibid., 107.
40. Ibid., 111.
41. Ibid.
42. Ibid., 109.
43. Ibid., 108.
44. Fuller, “Case of the Speluncean Explorers,” 620–21; emphasis added.
45. While it may be the case that developed countries have less of a right to exclude
those from poorer or oppressed nations, since the reason for obliging current members
of a state would be rather compelling (see Blake, “Immigration, Jurisdiction, and Exclu-
sion,” 128), I think there may be more of an argument for poorer developing nations to be
more stringent on members of developed states entering their premises. Not that poorer
or oppressed states should keep the rich out, but the asymmetry of passports should not
be what it is today. In addition, borders should work to assist developing nations from
exploitative nations.
46. Blake, “Immigration, Jurisdiction, and Exclusion,” 114.
47. Ibid., 118.
48. Ibid., 114.
49. See Blake, “Immigration, Jurisdiction, and Exclusion,” 128–29.
50. Ibid., 117.
51. Ibid., 11.
52. Blake, “Immigration, Jurisdiction, and Exclusion,” 121.
53. Agnew, “Borders on the Mind,” 176; emphasis in original.
54. Agnew, “Borders on the Mind,” 176.
55. This is somewhat of a simplication. I understand that international organizations,
alliances, or compacts, and other inter-state agreements may extend jurisdictional powers.
Part of what Balibar terms the “complexity” of the border implies the fact that the practice
of walling that accompanies borders frequently takes place away from the border and even
beyond the territorial jurisdiction of a political institution. See also Flynn, “Where’s the
U.S. Border?,” 2–21.
56. See Bosniak, “Membership, Equality.”
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THE MILITARIZATION OF BORDERS 233
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