How Appeals to the Common Good Can Restrict Political Freedom
A government announces a new restriction. It says the measure is necessary for public safety.
Another government limits political membership in the name of national unity. A third insists that newcomers must accept certain common values before becoming full members of the community.
Safety, unity, and shared values are not necessarily bad things. They may help people live together freely.
But something changes when these ideals become reasons for restricting the freedom of others.
The discussion begins with what is good for society. It ends with what the state is entitled to compel people to do.
Who decides what the common good requires? And what happens to those who disagree?
In The World Citizen Revolution, I examine how inherited nationality restricts where people can become full political members. In The World Citizen Society, I consider how freedom of political-community choice might change that arrangement.
Neither book assumes that political communities can exist without rules or obligations. The question is what justifies those rules when they restrict the freedom of others.
A desirable goal and a legitimate means of achieving it are separate questions.
This distinction matters whenever governments invoke moral purposes to justify restrictions on Entry, residence, and political membership.
When a Good Purpose Becomes a Justification
Governments have genuine responsibilities. They must protect people from violence, maintain public institutions, and make decisions about resources and social cooperation.
Security may justify some restrictions. It does not follow that everyone excluded presents a danger.
People may reasonably wish to preserve their language and cultural traditions. But does preservation require excluding others? Could it be pursued through education, participation, and voluntary cooperation?
A government may identify a desirable goal, describe a restriction as necessary, and then portray opposition to that restriction as opposition to the goal itself.
What justifies imposing this particular burden on these particular people?
American history offers a disturbing example of what can happen when that question is not adequately examined.
Security, Korematsu, and Trump v. Hawaii
During the Second World War, the United States government forcibly removed and incarcerated people of Japanese ancestry, including American citizens. The policies were defended as necessary for national security.
Fred Korematsu was convicted of violating a military order requiring people of Japanese ancestry to leave a designated area. He challenged that conviction.
In Korematsu v. United States (1944), the Supreme Court upheld it. The Court accepted the wartime justification without an individual finding that Korematsu himself posed a danger.
The Court was deciding the legality of the exclusion order, not directly ruling on the constitutionality of the entire detention system.
That distinction matters. So does the injustice suffered by those removed from their homes.
In 1983, a federal court set aside Korematsu’s conviction after evidence emerged that the government had withheld important information. A detailed judicial opinion followed in 1984.
In 1988, Congress enacted the Civil Liberties Act, providing an official apology and financial compensation to eligible survivors of the wartime exclusion and incarceration policies.
Decades later, the Supreme Court returned to Korematsu in a different dispute.
In September 2017, President Donald Trump issued Proclamation 9645, restricting entry into the United States for specified categories of nationals from several countries.
The administration pointed to national security concerns, including weaknesses in identity management and information sharing.
In Trump v. Hawaii (2018), the Supreme Court upheld the proclamation by five votes to four.
Chief Justice John Roberts, writing for the majority, concluded that the president had broad authority under immigration law. The Court also rejected the constitutional challenge under a standard that gave considerable weight to the government’s stated reasons.
This did not mean the Court considered the policy wise. It meant that the legal challenge failed under the standards applied in that case.
The dissenting justices disagreed for different reasons.
Justice Stephen Breyer, joined by Justice Elena Kagan, questioned whether the system of exceptions and individual waivers was working as the administration claimed.
Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, emphasized evidence of anti-Muslim hostility and challenged the majority’s constitutional assessment.
Responding to Sotomayor’s comparison with Korematsu, Roberts declared:
“Korematsu was gravely wrong the day it was decided.”
He distinguished the wartime racial exclusion of American citizens from restrictions on admitting certain foreign nationals.
Sotomayor acknowledged the legal differences but argued that the majority was again giving excessive weight to national security claims in the face of evidence of discrimination.
The disagreement is worth considering.
The justices agreed that Korematsu deserved condemnation. They disagreed about what its lessons required in the case before them.
The two cases were not legally identical. One concerned racial exclusion imposed within the United States; the other concerned admission from abroad. The legal rights and standards involved differed.
Yet the cases raise a common question.
How carefully should courts examine the evidence behind a government’s claim of national security when people’s freedoms are restricted?
The lesson is not that security concerns are necessarily false. Governments have real responsibilities to protect people.
But the importance of a goal cannot substitute for examining the evidence, scope, and consequences of coercion undertaken in its name.
Living Together — S.A.S. v. France
A different problem arose in France.
In 2010, France adopted a law generally prohibiting clothing designed to conceal the face in public places, with certain exceptions.
A French Muslim woman challenged the prohibition before the European Court of Human Rights in S.A.S. v. France (2014).
The government invoked public safety, gender equality, human dignity, and the conditions necessary for social interaction.
The Court considered these arguments separately.
It did not accept gender equality or human dignity as sufficient grounds for the general prohibition. Public safety could justify identification requirements in particular situations, but did not by itself establish the need for a ban throughout public life.
The majority nevertheless accepted living together as a purpose connected to protecting the rights and freedoms of others.
By fifteen votes to two, the Court found that France had not violated the applicant’s rights under Articles 8 and 9 of the European Convention on Human Rights.
Two judges dissented. They questioned whether such an abstract idea of common life could justify a broad restriction on individual freedom.
This case was not about immigration or citizenship. The applicant was already a French citizen.
Still, it reveals a problem extending beyond France.
A community may regard certain practices as necessary for living together. Individuals may experience those requirements as unjustified restrictions on their freedom.
Democratic societies need shared rules. They also need freedom to disagree about what those rules should be.
The phrase living together cannot resolve that tension by itself.
Must Membership Require Agreement?
Cultural expectations become especially important when they determine who may join a political community.
Knowledge of a language or constitutional institutions may be relevant to membership. But respecting other people’s rights is not the same as agreeing with the majority’s understanding of national identity.
Existing citizens disagree about religion, history, and culture. Why should prospective members be required to agree on questions over which existing citizens remain free to disagree?
Earlier essays on Francis Fukuyama and Samuel Huntington examined these tensions.
Here the question is whether cultural preservation, however desirable, justifies excluding people from political membership.
Resident Sovereignty treats durable residence, rather than inherited nationality, as the primary basis of ordinary political membership.
This does not require a community to abandon its language or traditions. It requires the restrictions imposed in their name to be justified.
Can Democratic Decisions Justify Exclusion?
A democratic majority may sincerely believe that restricting Entry serves the common good. But the people excluded did not participate in choosing that majority.
This does not mean everyone seeking admission must immediately receive voting rights.
Nor does Foot Democracy—the freedom to choose a political community—automatically override Hand Democracy, the freedom of a community’s members to govern themselves.
Earlier essays examined the tension between these two freedoms. Here the question is narrower.
Can a democratic decision sufficiently justify coercion against people who had no opportunity to participate in making it?
Democratic authorization matters. It cannot, by itself, settle every question about the rights of those excluded.
What Existing Human Rights Law Does Not Settle
International human rights law protects important freedoms, including rights concerning movement, departure from a country, nationality, and entry into one’s own country.
But it does not establish a general right to immigrate into any foreign country one chooses.
Foot Democracy proposes a development beyond that existing framework.
A restriction may be permissible under current law while remaining open to political criticism and institutional reform.
Having the legal authority to impose a restriction does not necessarily answer whether that authority ought to be exercised.
Freedom Needs Institutions, Not Moral Certainty
In his 1958 lecture Two Concepts of Liberty, Isaiah Berlin warned of the danger of coercing people in the name of their supposedly true interests or a higher conception of freedom.
His warning remains relevant whenever political authorities claim to know what is best for others.
It must also apply to the World Citizen Revolution.
The movement cannot seek freedom of political-community choice while disregarding the basic rights of existing residents. Nor can it claim to advance equality while imposing a single moral doctrine on every political community.
The principle of Rights Before Choice, developed in The World Citizen Society, limits collective decision-making and individual choice alike.
Basic rights cannot be sacrificed simply because a majority demands it or because an individual could theoretically leave.
Yet freedom also requires functioning institutions. Courts, administrative procedures, public services, and mechanisms of cooperation help make rights secure.
The task is not to eliminate every form of coercion. Political communities need enforceable rules.
It is to ensure that coercive power remains limited, justified, open to challenge, and subject to change.
This is a standard the World Citizen Revolution must apply to itself.
Who Can Challenge the Common Good?
One question remains: who can challenge the rules?
People excluded from Entry or full membership may have little influence over decisions governing their lives. They may be described as security risks, cultural outsiders, or prospective beneficiaries of reform.
But they are also political actors capable of making claims about the restrictions imposed upon them.
Earlier essays argued that the rights of Foot Democracy must be won and defended through political action.
Here the issue is who can challenge the reasons offered for coercion.
People should have meaningful opportunities to organize, criticize decisions, and work with others to change the rules, even where existing law does not yet recognize them as full political members.
Otherwise, even benevolent policies may leave them dependent on the judgment of others.
The Difference Between a Moral Purpose and Political Freedom
Security matters. So do cultural continuity, democratic self-government, and the protection of basic rights.
The World Citizen Revolution does not require political communities to abandon these responsibilities. It asks them to justify the restrictions imposed in their name.
Korematsu illustrates how grave injustice can be defended through security claims.
Trump v. Hawaii shows that even after a historical wrong is repudiated, people may disagree profoundly about how its lessons apply.
S.A.S. v. France presents a different conflict between common social values and individual freedom.
These cases do not produce one simple rule for every political community.
But they return us to the distinction with which this essay began.
A desirable goal and a legitimate means of achieving it are separate questions.
A World Citizen Society cannot be built by replacing one compulsory ideal of belonging with another.
It must make political belonging more open to choice, disagreement, and change.
The goal is not a society without moral commitments.
It is a society in which moral commitments do not become an unlimited license to govern the lives of others.
Further Reading
Books
- The World Citizen Revolution — On inherited nationality and restrictions on political membership.
- The World Citizen Society — On Hand Democracy, Foot Democracy, Resident Sovereignty, and Rights Before Choice.
Related Essays
- No Permanent Transition: When Temporary Restrictions Become Permanent Inequality
- Once Entry Is Won, How Is It Protected?
- Who Gets to Decide Who Belongs?
- Samuel Huntington and the Limits of Civilizational Membership
Notes
On December 18, 1944, the same day as Korematsu, the Supreme Court decided Ex parte Endo, 323 U.S. 283. It held that the War Relocation Authority lacked legal authority to continue detaining an American citizen whose loyalty was accepted. The Court did not decide whether the detention system as a whole was constitutional.
References
- Supreme Court of the United States. Korematsu v. United States, 323 U.S. 214 (1944). https://supreme.justia.com/cases/federal/us/323/214/
- Supreme Court of the United States. Ex parte Endo, 323 U.S. 283 (1944). https://www.govinfo.gov/content/pkg/USREPORTS-323/pdf/USREPORTS-323-283.pdf
- United States District Court for the Northern District of California. Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984). https://law.justia.com/cases/federal/district-courts/FSupp/584/1406/2270281/
- United States. Civil Liberties Act of 1988, Public Law 100-383. https://www.congress.gov/100/statute/STATUTE-102/STATUTE-102-Pg903.pdf
- Supreme Court of the United States. Trump v. Hawaii, 585 U.S. 667 (2018). https://www.govinfo.gov/content/pkg/USREPORTS-585/pdf/USREPORTS-585-667.pdf
- European Court of Human Rights. S.A.S. v. France, Application No. 43835/11, Grand Chamber Judgment, July 1, 2014. https://hudoc.echr.coe.int/eng?i=001-145466
- Isaiah Berlin. Two Concepts of Liberty. Oxford, 1958. https://berlin.wolf.ox.ac.uk/published_works/tcl/index.html
- United Nations General Assembly. Universal Declaration of Human Rights. 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights
- United Nations. International Covenant on Civil and Political Rights. 1966. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights
