The Libertarian Case AGAINST Open Borders

Disclaimer: This is a guest post that does not necessarily reflect the views of the majority of writers on this site.  It is presented here without changes to show one view of the controversy among libertarians on how State borders should be handled in the absence of a truly free society, and in the belief that the truth of the matter is best discovered by vigorous debate over disagreements.

Introduction

Perhaps one of the most hotly debated topics in libertarian circles is that of immigration, and understandably so.   The heated disagreements come from debates regarding what immigration polices most closely align with libertarian principles of justice given a Statist paradigm. Of course no such policies will attain the purity of justice that would result from the absolute privatization of all public goods/services coupled with the elimination of the State. However, the purpose of this essay is to make a case for what the “second-best” solution is.

Keep in mind, recognizing a particular solution to the issue of immigration as second-best is no more an endorsement of it than recognizing Trump as a lesser evil than Clinton would be an endorsement of Trump. Tragically, it seems unlikely that a fully privatized or anarcho-capitalist society will emerge in the near future, thus discussing such a second-best solution is a worthy endeavor. This essay was largely inspired by the works of Hans-Hermann Hoppe and, to a lesser extent, Stephan Kinsella. However, Walter Block and others have put forth some valid critiques of their positions in light of which I have modified my own stance accordingly.

A Critique of Open State Borders

Ironically, the completely unrestricted and “open State border” position is a one size fits all statist solution that would be unjustly imposed upon all domestic tax-paying/property-owning citizens. In contrast, the “invite only” immigration restriction proposed in this essay is the one most in line with private property rights and libertarian principles. This is because it recognizes that domestic tax-payers/property-owners are the legitimate owners of all State “public-property” and, as such, any uninvited foreign invader must necessarily be guilty of trespass (i.e. a property violation). Further it takes the question of whether or not a particular foreigner should be welcome out of the hands of the central State and into the hands of its respective individual property owning domestic citizens. This is a far more decentralized solution than the unconditional “open State border” one.

Some additional complications that would arise include the huge strain the resulting mass influx of immigrants would have on the welfare system. This would greatly increase the demand for such programs which would inevitably result in their expansion and, by extension, the State’s. The negative effects of such a policy are further compounded so long as anti-discrimination laws are in place as this would entail private establishments facing State pressure to employ, serve, cater, and rent to said foreign invaders. Such forced integration will also cause social tension to abound between the foreign invaders and domestic citizens. The cumulative effect of all the preceding issues will result in a substantial increase in aggressive conflict between domestic citizens and the State, foreign invaders and domestic citizens, and foreign invaders and the State.

Finally, proponents of the “open state borders” position may desperately claim that “at least our proposal doesn’t involve aggression on part of the State!” Unfortunately, they are mistaken. An open state border policy would entail that the State could have its agents use force against private citizens who attempt to rightfully evict uninvited foreign invaders from public property/land. Such eviction attempts would incorrectly be interpreted as assault in the eyes of the State as opposed to a justified defense of one’s own property.

Fundamental Disagreement

If one had to identify the root of discord between libertarians on this topic, it would have to be their differing views on whether public property should be seen as unowned, or the private (albeit diffused) property of domestic tax-paying citizens. Of course those who hold the former position will draw vastly different conclusions than those who hold the latter. The latter position seems to be more sound once one considers what fundamentally determines another’s property right to a particular good: his/her superior objectively verifiable link to it. Of course for external goods libertarians recognize that such a link can only be established by original appropriation/homesteading/first use (physical transformation, emborderment, possession) or voluntary exchange. The State has completed this homesteading task but was only able to do so by first generating the requisite funds via domestic taxes. Thus, such “public property” belongs to domestic tax paying citizens as they can demonstrate a superior objective link between themselves and the goods in question with respect to foreigners. Hoppe elaborates:

“The fundamental error in this argument, according to which everyone, foreign immigrants no less domestic bums, has an equal right to domestic public property, is Block’s claim that public property ‘is akin to an unowned good.’ In fact, there exists a fundamental difference between unowned goods and public property. The latter is de facto owned by the taxpaying members of the domestic public. They have financed this property; hence, they, in accordance with the amount of taxes paid by individual members, must be regarded as its legitimate owners. Neither the bum, who has presumably paid no taxes, nor any foreigner, who has most definitely not paid any domestic taxes, can thus be assumed to have any rights regarding public property whatsoever.”¹

Hoppe then proceeds to refute the claim that free trade and free immigration are analogous:

“Free trade and markets mean that private property owners may receive or send goods from and to other owners without government interference. The government stays inactive vis-à-vis the process of foreign and domestic trade, because a willing (paying) recipient exists for every good or service sent, and hence all locational changes, as the outcome of agreements between sender and receiver, must be deemed mutually beneficial…. people, unlike products, possess a will and can migrate. Accordingly, population movements, unlike product shipments, are not per se mutually beneficial events because they are not always—necessarily and invariably—the result of an agreement between a specific receiver and sender. There can be shipments (immigrants) without willing domestic recipients. In this case, immigrants are foreign invaders, and immigration represents an act of invasion.”²

Anarcho-capitalist Hypothetical

Prior to delving into the case for a “second best” solution, it will behoove us to consider some relevant aspects of an anarcho-capitalist society. First, in such a society there would be no such thing as “free immigration”. People would only be able to travel through/on property by first attaining the respective owner’s permission to do so. As Hoppe has correctly recognized, the result will be some residential or commercial areas being more inclusive and others more exclusive. Moreover, all property owners would have the right to evict trespassers from their land regardless of whether or not the trespasser used any force against the owner himself or any other residents. Keep this point in mind for when the “second best” solution is discussed in the following section.

It is also important to ask by what method could formerly “public/state property” be allocated in a manner that most closely aligns with libertarian justice? Hoppe has this to say on the matter:

“The former taxpayers, in accordance with their amount of local, state, and federal taxes paid, should be awarded tradable property titles in local, state, and federal streets. They then can either keep these titles as an investment, or they can divest themselves of their street property and sell it, all the while retaining their unrestricted right-of-way.

The same essentially applies to the privatization of all other public goods, such as schools, hospitals, etc. As a result, all tax payments for the upkeep and operation of such goods stop. The funding and development of schools and hospitals, etc., is henceforth solely up to their new, private owners. Likewise, the new owners of such formerly “public” goods are those residents who actually financed them. They, in accordance with their amount of taxes paid, should be awarded saleable property shares in the schools, hospitals, etc. Other than in the case of streets, however, the new owners of schools and hospitals are unrestricted by any easements or rights-of-way in the future uses of their property. Schools and hospitals, unlike streets, were not first common goods before being turned into “public” goods. Schools and hospitals simply did not exist at all as goods before, i.e., until they had been first produced; and hence no one (except the producers) can have acquired a prior easement or right-of-way concerning their use. Accordingly, the new private owners of schools, hospitals, etc., are at liberty to set the entrance requirements for their properties and determine if they want to continue operating these properties as schools and hospitals or prefer to employ them for a different purpose.”³

One who agrees this method is the optimum way to privatize “public goods” in so doing implicitly recognizes that such domestic tax payers have a superior claim to domestic “public property” with respect to foreigners. Otherwise, he would prefer all public property be “up for grabs” upon the State’s elimination.   Additionally, anyone who can demonstrate a particular public good was taken from him or his ancestor in title via aggression (as is the case with eminent domain) would be re-awarded title to said good. Murray Rothbard elaborates:

“It might be charged that our theory of justice in property titles is deficient because in the real world most landed (and even other) property has a past history so tangled that it becomes impossible to identify who or what has committed coercion and therefore who the current just owner may be. But the point of the “homestead principle” is that if we don’t know what crimes have been committed in acquiring the property in the past, or if we don’t know the victims or their heirs, then the current owner becomes the legitimate and just owner on homestead grounds. In short, if Jones owns a piece of land at the present time, and we don’t know what crimes were committed to arrive at the current title, then Jones, as the current owner, becomes as fully legitimate a property owner of this land as he does over his own person. Overthrow of existing property title only becomes legitimate if the victims or their heirs can present an authenticated, demonstrable, and specific claim to the property. Failing such conditions, existing landowners possess a fully moral right to their property.”⁴

Second Best Solution

Now for the long awaited “second best” solution. The following proposal and its format closely resemble that of Hoppe’s. It is a two-pronged approach composed of corrective and preventative measures to address the issue of immigration.

Corrective

The corrective measures are intended to address the effects of forced integration that have already occurred. Such measures are hardly controversial, especially within libertarian circles but are nevertheless worth mentioning. First and foremost, would be the privatization of as many public goods as possible. This would effectively mitigate the issues of immigration as there would be less public areas to immigrate to. Of near equal importance would be the repeal of anti-discrimination, affirmative action, and other such legislation which inhibits an individual’s ability to discriminate with his private property.

This would greatly reduce the negative effects of any “forced integration” brought on by the invasion of uninvited foreigners. A less obvious measure would be to pursue a truly free trade policy. If foreigners are able to trade with domestic citizens without being penalized by tariffs and/or other State measures designed to artificially disadvantage them, then the demand to immigrate will decrease ceteris paribus. Next would be decentralization. For instance, it would be better for Texas and its tax paying residents to determine immigration policies that affect their territory than the federal government, and better still for the county and its tax paying citizens to determine such policies for their territory and so on until all such questions are handled by the individual with respect to his own property. Finally, foreign visitors, whether invited or uninvited, should be barred from having access to tax funded welfare programs or subsidies of any kind. This too will decrease the demand to immigrate.

Preventative

When considering measures designed to prevent forced integration, it is important to consider which of them would most closely correspond with the desires of the domestic tax paying citizens who have a diffuse yet valid claim to the public property “stewarded” by the State. Stephan Kinsella offers us his insight in the following:

“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

… 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…

….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).;”⁵

Just as an open State border policy would entail forced integration/inclusion it is also important to prevent the State from enacting a policy of forced exclusion. That is, preventing foreigners from visiting who have been invited by a domestic property-owning/tax-paying citizen. Hoppe elaborates:

“Now, if the government excludes a person while there exists a domestic resident. who wants to admit this very person onto his property, the result is forced exclusion; and if the government admits a person while there exists no domestic resident who wants to have this person on his property, the result is forced integration. Moreover, hand in hand with the institution of a government comes the institution of public property and goods, that is, of property and goods owned collectively by all domestic residents and controlled and administered by the government. The larger or smaller the amount of public-government ownership, the greater or lesser will be the potential problem of forced integration.…..by proceeding on public roads, or with public means of transportation, and in staying on public land and in public parks and buildings, an immigrant can potentially cross every domestic resident’s path.”⁶

The solution then is to make any foreigner’s entry into the country (or state/county/municipal area depending on whether an approach of decentralization has been followed) contingent upon a domestic tax-paying/property-owning citizen’s invitation. The inviter would need to provide the visiting foreigner with some proof of the invitation so that a third party may determine whether he is an invited guest or an uninvited trespasser. A public record of such invitations may be kept so as to impose additional social/economic pressures on domestic citizens to not haphazardly invite those who may be dangerous, aggressive, or undesirable.  Hoppe expands on the nature of such invitations in the following:

“Valid invitations are contracts between one or more private domestic recipients, residential or commercial, and the arriving person. Qua contractual admission, the inviting party can dispose only of his own private property. Hence, the admission implies negatively—similarly to the scenario of conditional free immigration—that the immigrant is excluded from all publicly funded welfare.

The invitation may be private (personal) or commercial, temporally limited or unlimited, concerning only housing (accommodation, residency) or housing and employment (but there cannot be a valid contract involving only employment and no housing). In any case, however, as a contractual relationship, every invitation may be revoked or terminated by the invitor; and upon termination, the invitee—whether tourist, visiting businessman, or resident alien—will be required to leave the country (unless another resident citizen enters an invitation contract with him).”⁷

Until now the “property (real estate) owning” aspect of domestic citizens has not been remarked upon. Such citizens would be in a unique position to invite a prospective foreign visitor with respect to a non-property owning domestic citizen as the former can rightfully offer the foreigner a place with which to reside during his stay. Even renters may only be able to do this with the consent of their landlords. Similarly, a foreigner may only acquire citizenship by first purchasing real estate in the host country. Hoppe explains:

“The invitee may lose his legal status as a non-resident or resident alien, who is at all times subject to the potential risk of immediate expulsion, only upon acquiring citizenship. In accordance with the objective of making all immigration (as trade) invited contractual, the fundamental requirement for citizenship is the acquisition of property ownership, or more precisely the ownership of real estate and residential property.

… Rather, becoming a citizen means acquiring the right to stay in a country permanently, and a permanent invitation cannot be secured other than by purchasing residential property from a citizen resident. Only by selling real estate to a foreigner does a citizen indicate that he agrees to a guest’s permanent stay (and only if the immigrant has purchased and paid for real estate and residential housing in the host country will he assume a permanent interest in his new country’s well-being and prosperity).”⁸

Some critics of this solution may object by claiming other liberty violating policies, such as drug prohibition, could be justified on similar grounds. This is a seemingly plausible yet erroneous conclusion. Unlike the aforementioned immigration restrictions, a policy of universal drug prohibition may very well violate the property rights of domestic citizens who have valid claim to public property, due to their status as tax paying and/or property owning citizens. Admittedly this does reveal a grey area in regards to whether those who have a “majority stake” in the public property (owing to their higher net tax expenditures) can justly regulate its use in such a way that impacts their fellow domestic citizens/property owners. (One would have to consider what easements and/or access any partial owner of public property would be entitled due to his status as a partial owner). Such a policy could certainly never be justly applied to any individual’s private property. In distinct contrast, it is quite clear that a prospective foreign visitor/invader has no valid claim/link to domestic public property as he does not pay domestic taxes for its maintenance, protection, and upkeep nor does he have residence in the host country. Thus, there exists no potential principled conflict with subjecting him to such immigration restrictions.

Walter Block was able to detect a valid flaw in the immigration restrictions proposed by Hoppe and Kinsella: that they would entail a positive expenditure of State resources which are ultimately expropriated (stolen via taxes) from its citizens. In essence, that they are incorrectly attempting to utilize the State to solve a problem created by itself:

“Being a victim of the state in no way entitles someone to use the state against anyone else. Since socialist policies are such an inefficient drain on the economy, it is inevitable that people’s grievances will far outweigh the capacity of the state to compensate them. Moreover, the state does not have its own resources and it can only “compensate” people by robbing from others.”⁹

However, what Walter Block and perhaps Hoppe failed to recognize is that a policy of “invitation only immigration” need not be enforced by the State or its agents. Private citizens may form organizations like the Minuteman Project in order to patrol the borders for potential uninvited foreign invaders. If any foreigner is unable to produce verifiable evidence that he was invited by a domestic tax-payer/property-owner, then members of such organizations may rightfully evict these trespassers. In this way, such immigration restrictions may be enforced without requiring extra involvement or expenditures by the State.

1. Hoppe, 2001. Democracy: The God That Failed: The Economics and Politics of Monarchy, Democracy and Natural Order New Brunswick, N.J. Transaction Publishers. ↩

2. Hoppe, The Case For Free Trade and Restricted Immigration ↩

3. Hoppe, Of Private, Common, and Public Property and the Rationale for Total Privatization ↩

4. Murray N. Rothbard, “Justice and Property Rights,” in Property in a Humane Economy, Edit. Samuel L. Blumenfeld (Lasalle: Open Court, 1974), 121. ↩

5. Stephan Kinsella, A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders ↩

6. Hoppe, The Case For Free Trade and Restricted Immigration ↩

7. Ibid. ↩

8. Ibid. ↩

9. Walter Block, On Immigration: Reply to Hoppe ↩