This chapter seeks to advance the conceptual and normative analysis of what Rogers Smith (2014) calls “appropriately differentiated citizenship” for a particular category of would-be border crossers who have so far been absent from the normative literature on immigration and exclusion: border crossing peoples.
Such peoples are defined by a longstanding history of crossing a particular international border for reasons — cultural, political, and/or economic — central to their collective identity. National territorial rights theorists such as David Miller argue that restrictive immigration policies can be justified via a collectivist Lockean analogy: Private property rights are to individuals as national territory rights are to national communities. In this chapter, I accept the basic validity of this analogy but suggest it may demand heretofore unappreciated restrictions on the scope of permissible territorial exclusions.
In particular, I argue (following the private property analogy) that national territorial rights ought to be understood as being subject to border crossing easements. Such border crossing rights have been granted in a number of cases, most commonly for residents or those who have regular business in territorial enclaves, and indigenous peoples whose traditional territory straddled an international border.
Beyond those easements currently existing, I argue that other longstanding migration patterns, such as labor migration from Lesotho to South Africa or Mexico to the United States, also meet the conditions for an easement right. National territorial rights theorists are mistaken insofar as they deploy the collectivist Lockean property analogy one-sidedly in the direction of justifying restrictions.
Available at: http://works.bepress.com/david_watkins/5/