Bernard E. Harcourt | Introduction to 12/13 on Borders

By Bernard E. Harcourt

Border control regimes—like the beams that crumble when you try to drive a screw into them—are rotten and cannot be fixed, but they stand because of all the institutional and economic structures around them act like a scaffold. These border regimes should come down.

— Paulina Ochoa Espejo, “Abolish ICE!”

In Border and Rule, just published this month, Harsha Walia connects the struggle over borders to the broader abolitionist efforts to dismantle the carceral state. Walia traces the problems we conventionally associate with the current immigration crises to the long history of conquest, expropriation, and extraction that has characterized American and, more generally, Western politics. “The borders of today,” Walia writes, “are completely bound up in the violences of dispossession, accumulation, exploitation, and their imbrications with race, caste, gender, sexuality, and ability.”[1]

Walia urges us to rethink the crisis at our borders today: not to conceive of the problem as one caused by refugees crossing borders or taking to the seas, but instead to understand the problem as an economic and political crisis; not to “depict migrants and refugees as the cause of an imagined crisis at the border, when, in fact, mass migration is the outcome of the actual crises of capitalism, conquest, and climate change.”[2] Walia calls for an entirely different understanding of our contemporary situation and for very different action: “Instead of romanticizing migrants and refugees as either poor victims or heroic survivors, totalizing their experiences, I turn our gaze away from varied subjectivities to the systems of power that create migrants yet criminalize migration.”[3] Robin D.G. Kelley captures this powerfully in his foreword to Border and Rule:

Walia exposes this story [the ‘nation of immigrants’ paradigm] for what it is: a lie. The US, Canada, and Australia were not the creation of hardworking, plucky pioneers seeking a better, more democratic life for all but, rather, the product of the violence of capitalist expansion and racial ideology, armed settlers backed by joint stock companies, a colonial state apparatus, and capital in the form of kidnapped labor.[4]

In a similar way, methodologically, Seyla Benhabib urges us, in her article titled “The End of the 1951 Refugee Convention?,” to analyze and understand how we, in the West, participate in these harrowing experiences of migrations. She too urges us to take responsibility for our actions and politics. We must ask ourselves, Benhabib emphasizes, “what responsibilities do we bear toward those who knock on our doors?” We must search for “the roots of the ethical responsibilities we bear toward each other resulting from the economic and political systems we are situated in.”[5]

Walia, Benhabib, and Paulina Ochoa Espejo highlight the deep interconnections between US border policy—not just under the last administration, but also those of Presidents Clinton, Obama, and Biden—and the enforcement of domestic order. Benhabib emphasizes the punitive turn in immigration enforcement, or what is called crimmigration, already under Democratic administrations, and the tendency since 9/11 toward a counterrevolutionary paradigm both at the border and in the heartland. Ochoa Espejo traces the influence of identitarian politics on border enforcement and policing. Walia highlights the deep interconnection between the counterrevolutionary forces that today govern domestically and those used to police the U.S.-Mexico border.

At the broadest level of governing—regarding the logics and practices of government—border enforcement and domestic policy are deeply implicated. “Police, prisons, and borders operate through a shared logic of immobilization, containing oppressed communities under racial capitalism,” Walia writes.[6] But this is evident as well at the most concrete level, when the US Border Patrol becomes the counterinsurgency shock troops of the executive branch. We saw this time and time again under the last presidential administration when Border Patrol agents in full counterinsurgency gear were sent to police the protests. As Walia notes, “this is unmistakable in the deployment of US Border Patrol Tactical Unit (BORTAC) to train border guards in Iraq and Guatemala, while engaging in SWAT-style operations to grab protestors off the streets of Portland in unmarked vehicles at the height of Black-led uprisings against police violence in 2020.”[7]

The resulting injustices feel tantamount to the injustice of feudalism. In his classic argument for open borders in his 2013 book, The Ethics of Immigration, Joseph Carens in fact compares global citizenship today to feudalism: where one is born today, fortuitously, determines one’s place in the social and racial hierarchy of the world. “To be born a citizen of a rich state in Europe or North America is like being born into the nobility. To be born a citizen of a poor country in Asia or Africa is like being born into the peasantry in the Middle Ages.”[8] The result is fundamentally unjust.

As to where this all leads us, though, there is little consensus even among border skeptics and opponents.

For a long time now, Carens has been carrying the brief for open borders. All forms of social order are human-made, he argues, and if we start, rightly, from the assumption that all humans are of equal moral worth, then there is no good moral justification for closed borders and limits on mobility.[9] As a matter of ideal theory, of moral theory, borders should be open: “the freedom to move across borders should be seen as a fundamental freedom.”[10]

The movement to abolish ICE is consistent with open borders, although some proponents go further. Harsha Walia certainly does, and embraces a politics of no borders: “A no borders politics is more expansive than an open borders one,” Walia writes; “it calls on us to transform the underlying social, political, and economic conditions giving rise to what we know as ‘the migration crisis.’”[11] This entails a revolutionary politics that would eliminate private property regimes and the carceral state, and reimagine a new world. For Walia, it is a revolutionary project, explicitly.[12] It is a call for worldmaking[13]: “A meaningful no borders politics requires an end to forced displacement caused by the brutalities of conquest, the voraciousness of capital, and the wreckages of climate change.”[14]

By contrast, for Seyla Benhabib, the problem is not the existence of borders, but the way we now patrol them. Benhabib develops a theory of cosmopolitan interdependence: cosmopolitan, in the sense that mobility and movement across borders should be understood as a normal part of being human, which gives rise to the need for forms of reciprocity and interdependence between citizens and nations. “This is not a plea for a world without borders, because democracies require jurisdictional boundaries,” Benhabib writes. “In that sense, the liberal nationalists are right: We must know in whose name the law is being enacted and how we can request accountability from those who enact it. But these jurisdictional boundaries need not be co-terminous with militarily armed and violently guarded border regimes.”[15]

Benhabib argues for democratic self-determination combined with what she calls a new international law of interdependent sovereignties that does not allow for the forms of deterritorialization and exceptionalism that are now so frequently used to shield states from their responsibility.[16]

Although sympathetic to a no borders politics, Paulina Ochoa Espejo develops a different approach. She proposes a paradigm shift in the way we think about borders and immigration: instead of thinking about sovereignty and borders through the lens of a people or identity, Ochoa Espejo argues that we should think of borders in terms of place and place-specific obligations—where the notion of place is not limited to location, but includes the environment, social relations, and cultural meaning.

The identity approach to borders, Ochoa Espejo contends, leads to an all-or-nothing approach to borders—either fortified borders to protect the integrity of the people, or the opposite, no borders, to undo the pernicious effects of identity. Taking a place-specific and environmental approach to territory, rather than national identities, Ochoa Espejo proposes, opens up myriad different ways of modeling borders, including the following many possibilities:

one is an open border, such as that between France and Germany, which is a single market with no movement restrictions but with a clearly demarcated border between the two countries. Another is a regulated and demarcated but unfortified border, like that between the United States and Canada, which has no dividing barriers but regulates both movement and cross-border trade and is clearly demarcated with boundary markers. There are regulated and delimited but un-demarcated borders, such as that between Mexico and the United States in the late nineteenth century, where the border was delimited on a map and movement and trade were regulated, but physical boundary markers were lacking. Some borders do not regulate movement but do regulate trade, like that between Switzerland and the European Union, which share the Schengen Agreement but are not in a customs union.[17]

By taking a place-sensitive approach to obligations and environment, Ochoa Espejo hopes to delineate mixed models of borders, including the possibility of open borders, that recognize the obligations created by the terrain and social relations of the areas. This retains a place-sensitive theory of border depending on presence rather than membership. It allows for the abolition of border policing—as Ochoa Espejo writes, in the title of her blog post for 12/13, “Abolish ICE!” It provides a different path forward. “Rather than reject [borders] or dismiss them as necessary evils, as many do, I believe we should better understand them and examine whether they could be justified (and improved). However, I agree with many no-borders activists that identity-based justifications at the state level fail and often ratchet up violence and solidify historical injustices. The task is to understand whether territorial borders can be justified on the basis of universal principles, while minimizing unjustified exclusions and without falling back on identity groups.”[18]

Meanwhile, as I write and as we think, a record number of unaccompanied children and teenagers from Honduras, El Salvador, and Guatemala are attempting to enter the United States to seek refuge, resulting in record numbers of apprehensions likely to exceed anything we have seen over the past two decades. In February 2021 alone, the U.S. Border Patrol detained about 100,000 persons at the US-Mexico border. In the Middle East, the Syrian refugee crisis enters its tenth year and continues unabated, with 6.6 million Syrians living as refugees and another 6.7 million people displaced within Syria. In South America, the Venezuelan crisis has pushed about 4 million Venezuelans out of the country as refugees; in Africa, about 2.2 million people from South Sudan are displaced as refugees abroad. Across the world at end of year 2019, there were almost 80 million people displaced from their homes, 26 million of whom are living as refugees abroad—and 40% of those persons were children under the age of 18. And the Mediterranean Sea has now become a graveyard, with deaths of persons trying to emigrate by boat reaching over 5,000 in 2016 alone.

What then do we do about borders today? Should we abolish borders? Or do we abolish ICE and the policing of borders? Do we open our borders? Or adopt cosmopolitan interdependence? Or reimagine sovereignty entirely through a place-specific perspective? These are some of the questions we turn to in Abolition Democracy 12/13 with an extraordinary panel of brilliant critical thinkers.

Welcome to Abolition Democracy 12/13!


[1] Harsha Walia, Border and Rule (Chicago: Haymarket, 2021), at 213.

[2] Walia, Border and Rule, at 3.

[3] Walia, Border and Rule, at 2.

[4] Robin D. G. Kelley, “Foreword,” to Walia, Border and Rule, at xvii.

[5] Benhabib, “The End of the 1951 Refugee Convention? Dilemmas of Sovereignty, Territoriality, and Human Rights,” Jus Cogens  (2020).

[6] Walia, Border and Rule, at 5.

[7] Walia, Border and Rule, at 3.

[8] Joseph H. Carens, The Ethics of Immigration (Oxford: Oxford University Press, 2013), at 226.

[9] Carens, The Ethics of Immigration, at 226-227.

[10] Carens, The Ethics of Immigration, at 254.

[11] Walia, Border and Rule, at 213.

[12] Walia, Border and Rule, at 214 (“A no border politics, then, is a politics of refusal, a politics of revolution, and a politics of repair.”)

[13] Walia, Border and Rule, at 215.

[14] Walia, Border and Rule, at 213.

[15] Benhabib, “The End of the 1951 Refugee Convention?”  (2020).

[16] Benhabib, “The End of the 1951 Refugee Convention?”  (2020).

[17] Paulina Ochoa Espejo, On Borders: Territoriality, Legitimacy, and the Rights of Place (Oxford: Oxford University Press, 2020), at 13.

[18] Ochoa Espejo, On Borders, at 149.

[19] Arendt, “We Refugees,” at 274.

[20] Arendt, “We Refugees,” at 273.

[21] Arendt, “We Refugees,” at 274.

[22] Benhabib, “The End of the 1951 Refugee Convention?”  (2020).

Bernard Harcourt