UNDERGROUND RAILROAD
Time to unveil another of the reasons why I started this blog. This one, I warn you, is a little hare-brained. But see what you think.

The idea is a practical one: if I could get enough like-thinking people together, we could start it tomorrow. It's an idea for a website, a political movement and an NGO, an activist campaign, an extra-legal network, and a commercial venture all rolled into one. I'd like to use the brand name "the Underground Railroad." But to get my idea, we'll have to start with a venture into philosophy.

What is justice? On the one hand, people speak of "the justice system," meaning the law enforcement system. Justice is law enforcement. But no, because we can speak of "an unjust law" without talking nonsense; and law enforcement leads to "miscarriages of justice." Justice, then, is an *aspiration* of law enforcement; but what would it mean for this aspiration to be fulfilled? Some people speak of "social justice." This refers to something like economic equality, but why do they use these words for it? They imply that the existing economic system is "unjust" because it is so unequal; they imply, then, that "justice" means a more equal economic system. Justice is a fancy Latin-derived word which means something similar to the simple Anglo-Saxon word "fairness." Children in large households love to shout "That's not fair" when they feel a sibling is being favored over them. Clearly, there is a norm at work; again, that everyone be treated equally. And the justice system in a democracy proclaims that all people are "equal before the law." So justice clearly has something to do with equality, in almost every usage. Slavery and highly stratified class systems are now widely seen as unjust.

Rawls offers a "theory of justice" which is intuitive and has had widespread appeal. He starts with a thought-experiment: what kind of a society would a person want to live in if he were placed behind a "veil of ignorance" about what his place in that society would be? If you advocate black slavery, you may be born a master or a slave. If you advocate Anglo-Saxon capitalism with no welfare state, you may be born into poverty and end up at the bottom of the heap. If you advocate a caste system, you may be born an untouchable. What kind of society do you want?

I admit I haven't read Rawls; and from what I hear, after this fine beginning, he ends up concluding that all "reasonable" people would advocate tolerant secularism, the welfare state, basically everything that a 1970s East Coast liberal would support. I beg to differ: it is more than plausible that a more risk-loving individual would advocate Reagan-style capitalism and take his chances. I think some theocrats could pass the veil-of-ignorance test too. Rawls doesn't think so, because religion is one of the things you leave behind when you go behind the veil of ignorance; but this is to my mind illegitimate because religion is a set of beliefs that people can choose, and moreover that religion is among the beliefs that people would use to decide, from the veil-of-ignorance vantage point, what kind of society they would want, so that to try to exclude religion from the equation is nonsense.

All of this critique of Rawls actually strengthens the appeal of the initial thought-experiment by suggesting that people of widely varying convictions can accept that as a starting-point. The thought-experiment is indeed simply a way of making more vivid the Golden Rule. "Do unto others as you would have them do unto you," says Jesus. "Arrange society for others as you would arrange it for yourself, if you were in their place," is Rawls' basic message. Rawls is mistaken to think everyone would draw his conclusions from it, but the thought-experiment remains useful as a way to think about the question, "what is justice?"

Yet if the veil-of-ignorance thought-experiment really leads not to a single theory of justice, as Rawls thought, but to many theories of justice, is it any use at all? Doesn't it become an empty idea with no practical force, almost like a tautology?

To deal with this question, let's imagine for the sake of argument that Rawls' extended argument (not only his beginning) is right, and anyone placed behind a veil of ignorance and asked to design a society would design a tolerant, secularist, welfare state straight out of the head of a 1970s liberal. Why, then, do we find some people and political parties opposing this kind of society (in favor of, say, Reagan-style capitalism, or Iranian-style Muslim theocracy)? Simple: they are *not* behind a veil of ignorance; they know what position in society (and what religion) they were born with; and they are more interested in winning privileges for themselves and their own group than in grand notions of the public good. Even if they realize that the tolerant welfare state is better-- is more "just"-- they have no incentive to admit this, to others or to themselves. They are arguing, in short, in a sort of bad faith.

How would you prove this, given that, in practice, we can't place the ayatollahs or the tycoons behind the veil of ignorance and find out if, at the end of the day, the fear of persecution of poverty would change their minds? You can't, but that doesn't mean you're wrong; in fact, sometimes it is almost surely true that a lot of people are arguing in bad faith. Some white slaveowners claimed slavery was better even for the slaves: but if we could really extract their souls from their bodies and re-insert them perfectly at random, wouldn't the 30% chance of being a slave change their minds on the issue? If we could suck Hitler's soul from his body, and ask him to formulate policies for the world in which he was to live knowing that there was (for example) a 5% chance that he would be born a Jew, a 30% chance of being born a Russian, etc., surely he would have envisioned a different world. If the slaveowner or Hitler is arguing in a sort of bad faith, if the veil of ignorance, were it practicable, would change their minds about society, then we have extracted a confession from them that they are being unjust.

I don't want to throw around too many accusations of bad faith and injustice, but there is at least one policy that I believe can be confidently condemned from the standpoint of (this adapted version of) Rawlsian justice: borders.

In this context, by borders I mean immigrations restrictions. (Borders are objectionable in other ways, too, but I won't go into that here).

You are behind a veil of ignorance, and are asked about immigration. You are told the present order and given the chance to change it. The present order: 10% of the population of the world lives in very rich countries, full of abundant opportunities, with wages held at artificially high levels because foreign labor is kept out. You have a one-in-ten chance to be one of these favored citizens of rich countries. 90% of the population of the world lives in countries of varying degrees of poverty, in some cases very extreme. Your odds are nine-in-ten of being born in one of these poor countries. People in the poor countries cannot cross borders in search of better opportunities: they are tied down to the country where they were born, no matter how much the economy unravels, no matter how tyrannical and murderous the government is.

There are people who would argue that, yes, this system is just. Maybe there are some who would persist even after this Rawlsian test. They might be sincere if they know-- or, more to the point, *imagine*-- little about what it is like to spend your life in a poverty trap. In short, though, I think borders are unjust, and basically in bad faith.

Another way to approach it is from the perspective of "rights" (or "human rights"). Rights are spoken of as if they are natural, ethically binding, in quite confident terms, and in this sense they have become part of all sorts of treaties and documents such as the UN Charter. I am quite tempted by the philosopher MacIntyre's appraisal of rights: "the truth is plain; there are no such things, and the belief in them is one with belief in witches and in unicorns." Even MacIntyre, though, would admit that as a social institution rights exist; and he might agree that it is a good thing for rights in this sense to exist. But what rights? What is the content of human rights? There is a certain traditional catalog: freedom of speech, freedom of the press, freedom of thought, freedom of religion, freedom to organize, the right of habeas corpus, the right to a fair trial, and so on. But why these? The catalog is defined by custom and sentiment, I suppose; to some extent it might be arbitrary and it certainly may vary across cultures, but at the same time has its roots in people's feelings, people's *telos,* in our sense of fairness of pity. Thus torture and separation of familes are felt as "human rights' violations."

I would like to add one more right to the list: the right to migrate. To migrate harms no one, per se, and may be part of the realization of one's hopes and dreams, of one's *telos.* To see other countries, to participate in great works wherever they may be taking place, is a natural, a legitimate, a virtuous desire; to deny this right, an injustice and a crime.

To illustrate what this means, let us compare the right to migrate to the right to free speech. Just as the right to free speech does not mean you can say "just anything"-- you do not have the right to perjure yourself in court, to make oral contracts to sell the same cow six times, to yell fire in a crowded theater, to publish classified information, et.-- so the right to migrate (as I envision it) might be legitimately curtailed. Thus, I am not suggesting that borders be dissolved, and that countries will lose any right to regulate entry and exit of people, any more than free speech prevents the state from all regulation of speech. What kinds of regulations of entry and exit might be compatible with the right to migrate I have not yet worked out, nor am I sure exactly what mechanism would be best to do so-- to play the role, that is, that well-intentioned courts have played in working out an institutional realization of the right to free speech. What I am sure of is that today's system does not recognize the right to migration at all. Immigration systems are operated purely in the interests of the country operating them with no concern for the rights or welfare of the immigrant. The result, writ large, is cruel and unusual punishment for all those guilty of being born in the wrong place.

Martin Luther King argued, in "A Letter from Birmingham Jail," that we have an obligation to obey just laws and to disobey unjust laws. Many who find themselves under regimes that deny their rights-- the prophet Daniel, for example, who was to be forced to pray to idols-- exercise those rights anyway, accepting whatever punishment may be in store for them. This is civil disobedience, and it is a great part of the virtue of liberal traditions. Gandhi's noncooperation was a back-handed compliment to the British Empire; his nonviolence would never have worked in a less enlightened empire such as Stalin's. So with Martin Luther King, who was able to transform the country because freedom created a context in which righteous defiance of an unjust law could give conscience the upper hand over bigotry.

And so we come to the founding principle of the Underground Railroad. Immigration restrictions are an unjust law. Man has a natural right to migrate. The proper response to this unjust law, to this violation of human rights, is peaceful, large-scale, organized, highly public civil disobedience.

What activities would be involved, practically? Well, here creativity comes into play.

A website is a natural starting place. Every day, publish a brief biography of an illegal immigrant. Some would be "horror stories:" families separated, people unable to return to their home country for fear of losing jobs and livelihoods, deportations into poverty and tyranny, long wait times-- in short, ruined lives, and there are plenty of them due to the iniquity of immigration restrictions. Some would report on corruption in the Foreign Service: here the angle would be, partly to show that it happens, but not exactly to condemn it, for we would always be clear that the crime is not to be corrupt but to be in the Foreign Service at all (inasmuch as its job is to deny visas); it is better to take a bribe to do the right thing (let them in) than to turn them down. With luck, we could stigmatize the entire profession so that people of conscience were ashamed to go into it. Yet other times, we would publish stories of people whose lives were perfectly normal, people who could be your next-door neighbor, except for one detail, that at sometime in the past they had illegally crossed a border, and because of that they are second-class citizens, "criminals" in the legal though not the moral sense; the goal of these stories would be to show the absurdity of these laws.

The website would also publish resources for illegal immigrants. Ideally, we could generate a national network of people willing to house illegal immigrants, employers willing to hire them, schools willing to educate them, and so on. This would have a character of "commerce with conscience": people would be helping illegal immigrants, and they could take pride in being part of the amelioration of the world's greatest extant injustice, but they could make a buck while they were at it. Of course, people would take some risks publishing on the site. We would be tempting the law enforcement authorities.

Now we come to an important topic: jail time. Jail time, and the courage of activists to face it for a good cause, is the fuel, the key resource, of a movement of noncooperation-- or satyagraha, to use Gandhi's term. Our volunteers would court jail time, would take pride in, like a crown, a prize. We would put their pictures on the website, on pamphlets, get them on the news. "This man went to jail for resisting injustice..." is always a great advertisement for a cause. And it's not such a terrible price to pay. As many in history have discovered, to suffer for a good cause can be a source of joy. Some of us might die of assassins' bullets, too, like Martin Luther King. So be it.

Despite jail time, our movement would be fervently patriotic. Flags would be everywhere. Our offices near the Mexican border, where we would help newcomers find jobs and places to stay as they got on their feet, would have a patriotic tone: "Welcome to America, land of opportunity!" We would argue that all the best American traditions-- the melting pot, all men are created equal, give me your tired, your hungry, your poor, etc.-- are on our side. In arguing this, we would have to fight a lot of prejudice, but we would have an asset: obvious truth.

The movement would continue its labor until it had brought about, first, a change of values, and then a change of policy, until the right to migrate was recognized as an integral, "inalienable" part of human freedom.

So, who's with me?