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Unacknowledged Harms: Justifying the Texas-Mexico Border Wall

GVER, Vol. 6 No. 2, (2011)

Imagine I am the defendant in a murder trial. I realize that in law, murder is an intentional crime. Why not simply claim that I did not intend to kill? Of course I cannot usually do so. The law allows various ways in which subjective first person reports of intent can be defeated by other evidence. The criminal law is one of the best-developed bodies of doctrine formalizing the use of such evidence and in this paper I propose to apply it to the available public justifications for the construction of the Texas component on the US-Mexico border wall. The stated intent of the policy embodied in the construction of the Texas segments of the US-Mexico border wall is to reduce unauthorized border crossings; but I show that this cannot be its actual intent. I then document the extent of the harmful effects of the wall policy, effects that impose a high burden of justification on the policy. However, since the intent of the policy is unknown, no justification for the wall has been given. This is a very disturbing state of affairs. It might still be possible to provide such a justification, even if public officials are reluctant to do so. But, by analyzing some plausible candidate intentions behind the wall policy, I show that such justifications are highly unlikely to succeed. The best justification would have been on the basis of the stated intention. Indeed it is not implausible to suppose that the reason why the actual intent is not stated openly is exactly because it is obvious to policy makers that it does not justify the policy. Lastly, I shall argue that there is an interpretation of the doctrine of the double effect that has explanatory value in this case. It suggests a refusal to acknowledge the moral relevance of those – usually poor, usually Mexican – unauthorized migrants whose lives are blighted as a result of the policy. In the course of the paper I also offer a novel argument showing by reductio that it cannot be generally impossible (as some suppose) to attribute intent to collective entities.

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