A Simple Libertarian Argument Against Unrestricted Immigration and
Open Borders
by
N. Stephan Kinsella
by
N. Stephan Kinsella
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.)
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.
September
1, 2005
Stephan
Kinsella [send
him mail] is an attorney in Houston. His website is www.StephanKinsella.com.
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