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 enfore 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.
Email from a reader:
11:54 am on September 1, 2005 Email Stephan Kinsella
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.