A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders

by Stephan Kinsella on September 1, 2005

My latest article: A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders, LewRockwell.com, September 1, 2005. The version now on LRC is corrupted; see the version below. See also followup posted on LRC blog (reprinted below).

A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders

By Stephan Kinsella

September 1, 2005

[LewRockwell.com]

To own means one has the right to control a given resource. Ownership is distinct from mere possession or actual control; it is the right to control. (On the nature of ownership, see Hans-Hermann Hoppe’s A Theory of Socialism and Capitalism, chs. 1, 2, esp. pp. 5—6, 8—18, discussing notions of scarcity, aggression, property, norms, and justification, and ch. 9, esp. pp. 130—145; also links in this post.) ¹

As H.L.A. Hart argued, the question of what the law is, is different from the question of whether a particular law is moral or just. We can distinguish the way things are from the way things should be. Fact and norm, is and ought, are different things. When we speak of the actual state of affairs, we are talking about actual or legal ownership, and the positive, legal right to control a resource.

What I am getting at is that the state does own many resources, even if (as I and other anarcho-libertarians believe) the state has no natural or moral right to own these things. Nonetheless the state does own some resources — roads, ports, buildings and facilities, military bases, etc. We can allow that a road, for example, is actually, or legally, owned by the state, while also recognizing that the “real” owners are the taxpayers or previous expropriated owners of the land who are entitled to it. This poses no conceptual problem: there is no conflict between the proposition that the taxpayers have a moral or natural right to the land, i.e. they should have the (legal) right to control it; and the assertion that the state has the actual positive or legal right to control the land. The state is the legal owner; but this legal ownership is unjustified, because it amounts to continuing trespass by the state against property “really” owned (normatively or morally) by certain victims of the state (e.g., taxpayers or the resource’s previous owners).

The point here is the state does (legally) own resources which are “really” owned by others. As libertarians, we can view this situation as the state holding property on behalf of the real owners, as a sort of uninvited caretaker.

Now my contention is that given the existence of significant public property in a certain country, it is not necessarily unlibertarian for immigration to be restricted by means of usage-rules established on public property by the state-owner.

Consider this case. I live in a small independent city, which has about 10,000 residents. It is very small and dense, and smack-dab in the middle of Houston, which has 4 million people. Our City has a public pool a few blocks from my house. As a resident of the City (and hence a taxpayer) I am entitled to use the pool for a very small fee — say, $2 per visit. Nonresidents — outsiders — may use the pool too, but they pay three times as much: $6 per visit.

Now let’s say that as a libertarian I would rather the pool be privatized, or sold and the proceeds returned to those who have been victimized to found or maintain it — the taxpayers, or residents, of this City. This would be a type of restitution for the crime committed against them. Alternatively, if the land for the pool had been expropriated, the owner ought to be paid restitution. Etc. The point is that given a government theft, taking, or trespass, it is better, other things being equal, for the victims to receive restitution; and more restitution is better than a smaller, insufficient amount.

But restitution need not be made only in dollars. It can be made by providing other value or benefits to the victims. One such benefit to me is the ability to use a nice, uncrowded, local pool for a cheap price. It is arguably better, even more libertarian, for the City to discriminate against outsiders. If it did not, the pool would be overrun by outsiders seeking cheap swimming. It would be virtually worthless to me and most of my fellow residents of the City if there were no rules on entry, or no discrimination against outsiders. The rule set on the usage of this property by its caretaker-owner, the City, is a reasonable one — one that the owner of a private pool might adopt, and also one that generates more restitution for the victims of the City’s aggression, than a less discriminatory rule would.

This example illustrates the general point that when the state assumes ownership of a resource, then it has to establish some rules as to the resource’s usage. This is what it means to own something: to be able to determine how the thing is used. Coming back to immigration, let’s take the case of the federal government as owner-caretaker of an extensive network of public roads and other facilities. If the feds adopted a rule that only citizens and certain invited outsiders are permitted to use these resources, this would in effect radically restrict immigration. Even if private property owners were not prohibited from inviting whomever they wish onto their own property, the guest would have a hard time getting there, or leaving, without using, say, the public roads. So merely prohibiting non-citizens from using public property would be one means of establishing de facto immigration restrictions. It need not literally prohibit private property owners from having illegal immigrants on their property. It need only prevent them from using the roads or ports — which it owns.

It seems to me establishing rules as to how public roads are to be used is not inherently unlibertarian. Even libertarians who say the state has no right to make any rules at all regarding property it possesses — even speed limits etc. — really advocate the following rule: allow anyone to use it, and/or return it to the people. This is a way of using a piece of property. But most libertarians don’t seem to have a principled opposition to the very idea of rule-setting itself. Sure, the state should not own a sports stadium or road, but so long as it does, it is not inherently unlibertarian for the state-owner to promulgate and enforce some rules regarding usage of the resource. A road may have speed limits; a stadium or museum may charge an entrance fee; the sheriff’s office and the courthouse might have locks on the doors preventing anyone but employees from entering.

Advocates of open-borders/unrestricted immigration are simply those who prefer a certain rule of usage be issued by the feds: that anyone at all may use federal roads, ports, etc. Whereas other citizens have a different preference: they prefer that the feds not allow everyone, but only some people. By having the latter rule, obviously, a version of immigration restriction could be established de facto.

Now I am not so far arguing for the latter rule. I am simply noting that it is not necessarily unlibertarian, as the open-borders types want to maintain. They urge that the illegitimate owner-caretaker of public property use it in this way; others want it used another way. We all agree the rule that really should be adopted is: return the property to private hands. Where we differ is on what second-best rule is more libertarian, or more preferred. Is one second-best rule more clearly libertarian than the other? It seems to me that one useful way to compare alternative rules is to examine the restitution that would be provided by various usage-rules. A rule that generates more restitution for more people is, other things being equal, probably preferable to other rules.

In the case of federal highways, for example, most citizens currently get a benefit from being able to use roads. Is it “worth” the cost of being taxed to maintain the roads, or to pay for compensation fees paid to expropriated or bought-out property owners, or the associated liberty violations? No. But given a rights violation, some restitution is better than none. If the feds announced tomorrow that no rules at all applied to the federal highways, the utility of the roads to most people would fall dramatically, meaning that restitution has decreased. The resource would be wasted. If the feds announced tomorrow that no one could use the roads except the military, then again, this would reduce overall restitution. Some more reasonable rule in between would obviously generate a more respectable amount of restitution than either extreme.

Is there an “optimal” rule that leads to “optimal” restitution? Most certainly not. Private property is the only way to objectively and efficiently allocate capital. But some rules are better than others; and one reasonable rule of thumb used to judge the validity of a given usage rule for a publicly owned resource is to ask whether a private owner of a similar resource might adopt a similar rule; or to compare the amount and types of restitution corresponding to alternative usage-rules. And since it is impossible for the state to adopt a rule that perfectly satisfies all citizens — this is one problem with having public property in the first place — then, other things being equal, a rule that is favored by the overwhelming majority may be viewed as providing “more” overall restitution than one that is favored only by a few people.

Given these considerations, it seems obvious to me that, just as my neighborhood pool discriminates against outsiders, and just as a private pool also does this, so the state owner-caretaker of federal property might also establish rules that discriminate against some immigrants. It is obvious that the overwhelming majority of citizens do not want open borders; which means almost every American taxpayer would prefer that public property not be open to everyone. It is also clear that given federal anti-discrimination laws, providing unlimited access to public roads is tantamount to forced integration, has Hoppe has argued (1, 2). This cost is yet another reason why most Americans would prefer not to have public property open to all with no discrimination or restrictions. Given that values are subjective, using property to cater to the subjective preferences of the vast majority would seem to be one way of achieving a more substantial degree of restitution.

What are my own personal preferences? Well, I would prefer the public property be returned as restitution to the victims and the mafia called the state disbanded. Barring that, so long as they hold property rightfully “owned” by me and others to whom the state owes damages/restitution, I would prefer property they own to be used only for peaceful purposes of the type that would exist in the free market (can any libertarian seriously deny that it’s objectively better for the state to build a library or park on public property than an IRS office or chemical weapons factory?). I would prefer rules to be set regarding the usage of these resources so that they are not wasted, and so as to act in a reasonable manner like private owners would, and to maximize restitution. So far, I think my “preferences” are the only libertarian ones possible.

But what actual rules should we prefer? Here I think we start to veer from libertarianism into the realm of personal preference. I would not want the feds to allow any and all comers onto federal property, for the reasons mentioned above — I believe it would reduce the utility of public property, and impose costs (such as forced integration). In any event, even if this were now my own preference, I have to admit 99% of my fellow taxpayers would simply prefer some immigration restrictions, and therefore probably would prefer some kinds of rules of the road that discriminate against outsiders — given this preference, which does not seem per se unlibertarian — it is obvious that far more restitution is made overall if such rules are enacted.

Libertarians who righteously assume that their open borders view is the only principled one can only maintain this stance if they argue that the state should not ever establish any rules on property it asserts ownership of. Once they grant that some rules should be set, then they can not assume that discriminatory rules are automatically unlibertarian; all rules are “discriminatory.” And I do not personally believe it can be convincingly argued that there should be no rules on public property, because this would result in significant costs to citizens who are victimized enough. It cannot be a libertarian requirement to add injury to injury; libertarianism is about vindicating and defending the victim, not about victimizing him further.

***

More on Immigration and Open Borders

Stephan Kinsella

11:54 am on September 1, 2005

Re my LRC column A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders, I’ve already received many comments, most, surprisingly, positive. One thoughtful reader writes to tell me he is concerned that the argument could be used to justify all sorts of unlibertarian laws. For example, the State could say citizens can only use the roads if they agree to submit to taxation and narcotics prohibitions.Let me quickly summarize my thesis and then reply to this. My basic idea is that the citizens are the true owners of public property, and should have some say-so over how the state uses that property. Their interests and preferences should be taken into account. This will result in a greater degree of restitution, and thus an overall smaller degree of net harm, to them. Now obviously all their preferences cannot be simultaneously satisfied, but it seems reasonable, other things being equal, for the state to try to use the property in reasonable ways (like a private owner would) so as to result in partial restitution being made the citizens, or as many of them as possible. Obviously a greater degree of restitution (a better use of the property) made to a larger number of citizens is “better” (even from a libertarian standpoint) than a smaller degree of restitution (a more wasteful use of the property) made to fewer citizens. This does not imply there is an “optimal” usage of state property (other than to privatize it) but it does imply some uses are clearly worse than others. And it also implies that not every rule that ends up reducing usage by outsiders (immigrants) is necessary or inherently unlibertarian.

And yes, I share the concerns that this can be abused and it could be used to impose illiberal regulations on us. Gray areas and slippery slopes are a problem, but that is the unavoidable problem accompanying a state-run society. Given such a society, I see no reason we have to throw up our hands and say that any (second-, third-, or fourth-best) rule of property usage is just as good as any other. I threw in a lot of ceteris paribuses in my argument.

Given public ownership of property, which is already an offense, a rights-invasion, is it not libertarian to at least prefer certain public uses (and rules) to others, namely, those rules that don’t further victimize people, and/or that return to them some benefit to partially compensate them for the damage done to them by the public system in the first place?

And is it not sensible then to ask, what would a private owner do? to determine a better public use of property? Sure, this can be limited, and can only go so far, because the state is not a private owner. For example: a private road might not discriminate against outsiders–it might allow immigrants to move on the roads to property of willing participants. But the private road would also charge a fee (which is a way of filtering out some people); and would only take people who had a destination to go to (a willing invitee); and would not be imposing affirmative action and anti-discrimination requirements on citizens, so that its trafficking immigrants would not be a costly action.

And consider this too: whose rights are violated if the state does not permit immigrants onto roads? The immigrant’s rights? How so? This is a resource collectively owned by the citizens of the U.S. Whatever rule “they” adopt, I don’t see how the outsider has a right to complain. So I don’t see that it violates immigrants’ rights to not be permitted to use a U.S. public resource.

So whose rights are violated? arguably, those citizens who want to use the roads to transport immigrants to their own property. These citizens are “part owners” of the road and are unable to have it used in the way they wish. But for every citizen like this, there are 99 others who do not want the roads open to all–because that means dumping tons of immigrants onto public services and having the right to sue for discrimination and having access to everyone’s neighborhood due to the network of public roads. So if the open borders citizen has his way with the property, then 99 of his neighbors have their rights violated, because the road is being used the way 1 guy wants but not the way 99 others prefer. So there is no way to avoid violating someone’s rights, since the property is public and it has to be used one way.

It seems to me it is reasonable to use the property in this case the way 99 prefer, instead of the one prefers.

Now, as I stated in the article, if the state let only the military use the roads, that would harm the citizens by failing to let them use the roads. The state could theoretically enforce all kinds of bad “law”–taxes, drug laws–by saying to citizens: you may use the roads only if you agree to submit to taxes, drug laws. However, notice that this is just a conditional grant of usage of the property. I would not agree that is a good use of it–it’s tantamount to saying only the government can use it. Given that the citizens own it, it’s reasonable to allow the citizens to use it (with orderly rules, like speed limits) instead of to ban them from using it. If you prevent citizens from using it, that is reducing the restitution. So I would say that conditioning a citizen’s right ot use the roads to establish de facto unlibertarian laws is reducing the restitution, and increaseing the state aggression and harm, so I would oppose it. But denying an outsider the right to use the roads is not the same at all.

Bottom line: any libertarian who disagrees with me her must do so on one of two grounds: (a) there are no second-best rules; the state may not impose any rules at all; or (b) there are second-best rules but they require the state not discriminate against outsiders in the rules set on public property.

I reject (a) because it means you can’t prefer a peaceful use (a park or library) over a tyrannical one (IRS office, nuclear weapons facility); and it means you can’t prefer a reasonable use that gives some benefit back to citizens (public roads with reasonable rules and usable by citizens) rather than a wasteful use that provides no restitution (roads with no rules at all; or usable only by the military). And as for (b), the critic would need to set forth a theory of second-best usage of property. I tried to sketch some of these factors: prefer a peaceful to a criminal use; prefer a reasonable use along the lines of what a private owner would do, and taking into account the level and degree of restitution and the preferences of citizens. If someone has a better theory, let’s hear it.

Coda:

Email from a reader:

Stephan:

I’m surprised you’re surprised about all the positive comments on your recent essay. There seems to be a disconnect between people I would consider at the “top” of the libertarian community (academics, writers and political activists) and “rank-and-file” libertarians. Perhaps more people (not necessarily you) realize that the cause of liberty is hampered by the importation of millions of people with no tradition of limited government. These new arrivals (the ones here legally) owe the blessing of US residency not to the locality where they live but to the District of Columbia.

I think the libertarian arguments against immigration can be summarized as follows:

1. Mass immigration is a form of rent-seeking. Employers can increase their margins and off-load the increased infrastructure and various non-monetary costs on others.

2. Government is enforcing compulsory association. “Civil rights” laws and welfare benefits mean that those who do not want immigrants around are forced to abide and pay for them.

3. Government is importing more welfare-warfare state constituents.

4. Government is deliberately changing the native culture over the wishes of its own citizens. Substantively, there is no difference between the US open borders policy and the American Indians de facto open borders policy.

5. Open borders are a tragedy of the commons.

6. Government is inflating citizenship and residency in the US, as it did with college educations. Prior purchasers of these assets now see them devalued.

Few people realize that prior to a Supreme Court ruling in the 1850’s, immigration was a matter for the individual States, where the expense of immigration is actually borne.

Keep up the good work.