Tag Archives: collective property rights

Confusing public and private: the nonsensical private property argument against open borders

A popular argument against open borders runs as follows:

  • Individuals who own their own homes and businesses have the right to exclude anyone they like from their property
  • Immigration controls are a way for groups of individuals to collectively exclude people they don’t like from their property
  • Ergo, reducing or abolishing immigration controls infringe these individuals’ property rights

I think this cartoon that ran in the Indianapolis Star analogising immigrants to trespassers is a pretty good summary of how people who make this argument view laws that protect freedom of movement:

Indianapolis Star anti-amnesty cartoonA simpler version of this argument is: if you want open borders so bad, why don’t you leave your front door open and let in anyone who wants to sleep in your bed?

The legal/philosophical pedigree of this argument is somewhat thin, although neo-reactionary/libertarian scholar Hans-Hermann Hoppe is often cited in its support. Nevertheless, the “why don’t you open your front door?” argument is a popular one in discussions of immigration.

I must say I like Bryan Caplan’s pithy retort to this:

The biggest problem with this kind of “respect my property rights!” reasoning is that it confuses the public and the private. Removing border controls would no more obligate citizens to let foreigners sleep in their beds than the status quo obligates me as a US resident to let any US citizen commandeer my bed. Border controls act to exclude foreign individuals from the public square, from the marketplace, from the streets.

It is this use of public power to exclude foreign people from our public spaces that open borders advocates challenge. Governments cannot simply declare our public squares off-limits to anyone without good reason. If you don’t like having foreign people in your home, that’s your personal choice. I respect that. But if I want to host a foreign person in my home, you need a better reason than “But they’re not from this country!” to order my friend deported. What happened to my property rights?

More than respecting the private spaces of those who would welcome migrants and strangers, it is particularly important that we challenge the arbitrary exclusion of these people from our public spaces. Banning foreigners from hawking their goods, applying for jobs, or simply going for a stroll may not violate any individual’s property rights per se. But the use of government power to exclude people based on a characteristic out of their control — where they were born — is inherently suspect. This is particularly so when a favourite justification of those who advocate this exclusion seems to boil down to: “I don’t like these people and I wouldn’t allow them onto my private property, so I think society should enforce my personal preferences on everyone, and force these people out of all our public spaces altogether.”

There may be good reasons to single out foreigners for special treatment, maybe even for banishment or exclusion (espionage and invasion are the obvious examples here). But the point is that you need a reason rooted in the public interest to justify excluding someone by the violent force of the state. It is fine if you want to exclude someone from your property, and call the cops to enforce your private rights. But that is not at all the same as siccing the cops on someone applying for a job because that someone is an immigrant. Dressing this process up by electing legislators who pass exclusionary laws that allow you to sic the cops on peaceful foreigners in the public square does not alter the fundamental reality here: you have misleadingly appropriated your private rights to impose your personal preferences and prejudices on the public at large.

Confusing the public and the private is hardly unique to questions of freedom of movement and residence. I was reminded of this by another comic, this time from XKCD:

XKCD free_speech

In this instance, cartoonist Randall Munroe is addressing people who object to criticisms of their speech by responding: “I have the right to freedom of speech!” Yes, you do: the government cannot infringe your freedom of speech without good reason (violent incitement, slander, and so on). But other private individuals can respond to your speech as they please.

Objecting to others’ freedom of movement because “I have the right to peacefully enjoy my private property!” is the flipside of this. Yes, you do have that right, and if others are threatening your peaceful enjoyment, you can seek government intervention to enjoin them from disturbing you. But so long as others are not disturbing you, you have no basis for complaining about them.

Most immigrants are not criminals, not soldiers in an invading army. They don’t want to disturb you: they want to study, to live in a safe home, to work, to play, to love in peace. Unless they are causing a disturbance, you do not have a reason to demand their exclusion from the public square. Imposing your personal preferences on the public is not exercising your private property rights. It is the arrogant assumption of dictatorial power over public spaces: you are claiming the public square as your own private property, to the exclusion of anyone who happens to displease you.

Some disclaim the weak “You wouldn’t let an immigrant sleep in your bed” private property arguments, but insist that as a collective, the nation privately owns its land and can exclude non-citizens at will. In this version of the argument, the nation as a collective owns its public spaces, and morally may exclude foreign nationals from these public spaces.

This more sophisticated version of the private property argument falls flat for a different reason: it holds public stewards of law and order to the same bar as private property owners. In this telling, a democratic majority, or democratically-elected government, may exclude anyone from public spaces, because they are acting as private property owners.

But private property owners aren’t accountable in the same way that a public government is. The organs of the state are not the private property of a democratic majority. Public institutions do not belong to their citizens in quite the same way that I own my personal computer or refrigerator. I can do whatever I like with my personal property. Governments cannot do whatever they like with the organs of the state, even if a majority of citizens approve.

The most fundamental function of the state is to dispense justice. The organs of the state are accountable for dispensing justice; I as a private property-owner am not. If I wastefully throw away my food before its expiry date instead of giving it to someone in need, or if I burn my books instead of giving them to the local library, I may be doing something morally wrong, perhaps even unjust. But I am not accountable to the public for the choices I make about my property. I am not accountable for disposing of my property in a fair and just manner.

Governments are clearly different. If the sole function of government was to do whatever the majority wants it to do, then government could rightly exclude targeted minorities from the public square. It could confiscate the property of hated minorities, ban them from pursuing opportunities, and even jail or deport them. In fact, this is what governments used to (and some still) do: the victims of injustice have ranged from ethnic minorities to sexual minorities, to almost any human characteristic or grouping you can name.

Foreign individuals are just such another unjustly targeted minority. Just as homosexuals were once banned in many countries from certain occupations and hunted down by the police, our governments today persecute people for the audacity to live their lives outside the country they were born in. Author Orson Scott Card put it well when he criticised proposals in the US that would punish immigrants who don’t speak English:

Efforts to “protect English” are the exact equivalent of those signs saying “No Irish Need Apply” or the rules limiting the number of Jews who could be admitted to prestigious universities or the laws telling black people where they could and could not sit in buses and trains. English doesn’t need protection. People need protection from those who would hurt them because they weren’t born to English-speaking parents.

You might object that this is not an injustice: that the difference between other minorities versus immigrants is only that it’s unjust to persecute or exclude any citizen. In this view, non-citizens are fair game: it is just for government to exclude foreigners from our public spaces, as long as that’s what citizens determine through a democratic process.

Now, I agree it is fair for governments to discriminate against foreigners in a number of circumstances. But state-sponsored exclusion from the public square and from the marketplace is not one of these. As economist Steve Landsburg puts it:

Yes, the U.S. government is elected by Americans to serve Americans. There was a time when a lot of southern sheriffs could have said they’d been elected by white citizens to serve white citizens. It does not follow that it’s okay to run roughshod over the rights of everyone else.

…It is no more inappropriate for the U.S. Army to defend Americans instead of Peruvians than it is for Burger King to provide food for Burger King customers instead of McDonald’s customers. But the labor market isn’t like that at all… After all, if it’s okay to enrich ourselves by denying foreigners the right to earn a living, why not enrich ourselves by invading peaceful countries and seizing their assets? Most of us don’t think that’s a good idea, and not just because it might backfire. We don’t think it’s a good idea because we believe human beings have human rights, whatever their color and wherever they live. Stealing assets is wrong, and so is stealing the right to earn a living, no matter where the victim was born.

How did we conclude that it is wrong and unjust for the state to violently exclude racial, religious, or sexual minorities from public spaces? We view such exclusion as fundamentally wrong because access to the streets, the square, the marketplace is essential for an ordinary life. To force people into the shadows without good reason is wrong.

Are foreigners not people too? “Yes, they are,” says the immigration restrictionist. “But if they want to live an ordinary life, they can do that in their country. They have no right to live such a life here.” That is the nub of the moral disagreement: I think people have the right to live an ordinary life in any country they please, as long as they submit to the same laws that apply to its citizens.

I do not question the state’s ability to exclude foreigners, or the capability of a democratic majority to demand their government banish the alien. These are self-evident. But I question the justice and morality of any law that excludes people simply by the alien condition of their birth.

Justice is blind. The state’s obligation to dispense justice does not disappear when one party to the dispute is foreign. Foreigners have the same right to the fruits of their labour as anyone else, the same right to pay rent for a safe home as anyone else — the same right as any citizen to walk the street in peace. Attacking someone in the street because of their birthplace is just as wrong when the government does it in the name of a democratic majority as it would be wrong when done by a lynch mob in the name of xenophobic prejudice.

The image featured at the top of this post is from Detroit, Michigan in the mid-20th century, when denizens protested African-Americans settling in their community. The original photo can be found at the Library of Congress.

Frederick Douglass: Migration is, and always has been, a fundamental human right

It is almost impossible to make it through an explanation of the right to migrate without a listener interrupting: “But you can’t let everyone come! You just can’t!” There’s often a litany of plausible-sounding reasons.

Now, I suspect that these plausible-sounding reasons are actually much less defensible and plausible than you might think. But before we get into a deep discussion of the evidence here, the interrupting interlocutor often concludes: “What you say sounds nice in theory, but will destroy us. Your fancy moral theories will sink our ship of state. You are stupidly blinding yourself to the consequences of recognising a right to migrate.”

Yet when I probe into why our objector believes this, I often find he has no evidence for his belief that freedom of migration will destroy his country or the world. All he has to go on is the insistence that it’s a theoretical possibility that recognising the right to migrate will be disastrous. Yes, that’s a possibility — one we’ve thought about a lot.

But you could make such objections against just about every right. We restrict freedom of speech for much less than catastrophic disaster: most countries’ laws ban libel and slander, and many go even farther than that. This doesn’t mean the right to freedom of speech must be exterminated and never recognised — it just means that the right to free speech must be balanced against others’ rights. Such is the case with the right to migrate.

Peculiarly, people often seem allergic to the idea that foreigners have rights at all (never mind that humanity has recognised this ever since the first laws of war were drawn up), let alone the right to migrate. One of the most common objections I hear is that while such a right was feasible to recognise in earlier times, such a right is infeasible in the modern world.
Statue of Liberty(Image source: Christian Science Monitor)
But these objections are not new. They are so old, in fact, that they were anticipated almost 150 years ago. Here is Frederick Douglass, speaking in 1869 against the movement to ban Chinese immigration:

I have said that the Chinese will come, and have given some reasons why we may expect them in very large numbers in no very distant future. Do you ask, if I favor such immigration, I answer I would. Would you have them naturalized, and have them invested with all the rights of American citizenship? I would. Would you allow them to vote? I would. Would you allow them to hold office? I would.

But are there not reasons against all this? Is there not such a law or principle as that of self-preservation? Does not every race owe something to itself? Should it not attend to the dictates of common sense? Should not a superior race protect itself from contact with inferior ones? Are not the white people the owners of this continent? Have they not the right to say, what kind of people shall be allowed to come here and settle? Is there not such a thing as being more generous than wise? In the effort to promote civilization may we not corrupt and destroy what we have? Is it best to take on board more passengers than the ship will carry?

I submit that this question of Chinese immigration should be settled upon higher principles than those of a cold and selfish expediency.

There are such things in the world as human rights. They rest upon no conventional foundation, but are external, universal, and indestructible. Among these, is the right of locomotion; the right of migration; the right which belongs to no particular race, but belongs alike to all and to all alike. It is the right you assert by staying here, and your fathers asserted by coming here. It is this great right that I assert for the Chinese and Japanese, and for all other varieties of men equally with yourselves, now and forever. I know of no rights of race superior to the rights of humanity, and when there is a supposed conflict between human and national rights, it is safe to go to the side of humanity. I have great respect for the blue eyed and light haired races of America. They are a mighty people. In any struggle for the good things of this world they need have no fear. They have no need to doubt that they will get their full share.

But I reject the arrogant and scornful theory by which they would limit migratory rights, or any other essential human rights to themselves, and which would make them the owners of this great continent to the exclusion of all other races of men.

I want a home here not only for the negro, the mulatto and the Latin races; but I want the Asiatic to find a home here in the United States, and feel at home here, both for his sake and for ours. Right wrongs no man. If respect is had to majorities, the fact that only one fifth of the population of the globe is white, the other four fifths are colored, ought to have some weight and influence in disposing of this and similar questions. It would be a sad reflection upon the laws of nature and upon the idea of justice, to say nothing of a common Creator, if four fifths of mankind were deprived of the rights of migration to make room for the one fifth. If the white race may exclude all other races from this continent, it may rightfully do the same in respect to all other lands, islands, capes and continents, and thus have all the world to itself.

People often say that the words of the Statue of Liberty no longer apply today, because things are just fundamentally different. No longer should we declare:

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!

Whether stated or unstated, the suggestion is that the people of the 19th century who so eagerly embraced the right to migrate would, today, agree we ought to shut the door and wall out the “wretched refuse” of the world. But reading Douglass’s words, I find this difficult if not impossible to believe.

The same concerns people have about migration today were the ones raised to Douglass in the 1860s. Yet Douglass did not contemplate any reduction or circumscription of the right to migrate. He recognised the theoretical problems that the spectre of migration raises — and he rejected arbitrary prohibitions on human movement as the only solution to these problems.

He did not say they are categorically unfounded, nor did he say they should not be managed. He simply insisted that these theoretical problems are not a good enough reason in of themselves to restrict “essential human rights” — such as the right to migrate. It behooves us to solve these problems with solutions that least-infringe upon fundamental human rights.

People say that times change and that what was once a right might not be valid today. But how then can they answer Douglass’s insistence that the right to migrate is universal and indestructible? How can they explain that restricting migration isn’t really so wrong, when in Douglass’s time it was clear that this constituted an “essential human right”, one that he asserted for all other varieties of men equally with yourselves, now and forever?

I say that Douglass’s words ring as true today as they did well over a century ago. Migration is a fundamental human right. Like all rights, there may come a time when it must be restricted. But restrictions have to balance one set of rights against another — not to categorically declare that a right simply does not exist, and that we have carte blanche to utterly disregard it. As did Douglass, I assert today the universal and indestructible right to migrate equally for all human beings — now, and forever.

Source for featured image: Wikimedia Commons, original photographer unknown.

Open Borders Editorial Note: See also Open Borders guest blogger Ilya Somin’s blog post Frederick Douglass on immigration at the Volokh Conspiracy.

Let them come: treasuring the immigrant legacy of Thanksgiving

US President Barack Obama’s announcement of deferred deportation for millions of irregular migrants is a wonderful gift for many American families this Thanksgiving, whatever the greater (de)merits of his executive action. Truly, the biggest regret one might have is that Obama did not go far enough. Or to put it in the way only an Onion headline can, “5 Million Illegal Immigrants To Realize Dreams Of Having Deportation Deferred.”

As I’ve written, no sane person can defend the immoral persecution which most of these immigrants living in the shadows unjustfly face. But if you haven’t considered the issue well enough, you might unfortunately produce such dross as this cartoon that recently ran in the Indianapolis Star:

Indianapolis Star anti-amnesty cartoonIt is truly curious to me that the main reaction of the mainstream media was to label this as racist. The Indianapolis Star actually initially responded to criticism by removing the immigrant’s mustache and republishing an otherwise identical cartoon! Of all the the things wrong with this image, race is the last thing I would single out. The problem isn’t inherently its depiction of race relations; if anything, it’s hard to say without knowledge of the political context what the ethnicity of that immigrant might be. The problem is inherent to this image’s portrayal of how immigrants actually conduct themselves in society.

Now, the basic idea of this cartoon is pretty simple: immigrants need to ask the government for permission to settle in a new country. Without permission, these immigrants are akin to trespassers. Just as it is wrong for me to set foot in your house without your permission, it is wrong for migrants to set foot on the country’s soil without its government’s permission. In short: illegal immigration violates citizens’ “collective property rights“.

There’s a fundamental problem with this analogy, because it ignores the simple reality that irregular immigrants are not trespassers. After all, what exactly is the problem with me sitting down at your Thanksgiving dinner table, uninvited? The problem is that I am there without your permission.

So where are the immigrants sitting themselves down at dinner tables uninvited? What have they done that is the equivalent of inviting themselves over to stay at your house? The reality is that most immigrants, even those who have entered unlawfully, have done no such thing. You cannot say with a straight face that millions of people have literally invaded the homes of Americans.

The average undocumented immigrant paid for his own passage. Transportation providers — some unauthorised coyotes, others actual bus, train, or airline companies — offered these migrants a seat in return for the market rate. No trespassing or theft occurred; the transportation carriers gladly and willingly offered their services because they were compensated by these migrants. You cannot say these migrants robbed Greyhound by daring to buy a bus ticket.

What next? The migrants settled down, and began looking for work. Again, your average migrant isn’t illegally camping out in someone’s house, or sleeping on the sidewalk: your average migrant is renting a room or a home from someone. It is generally agreed that some one-third of undocumented immigrants in the US actually own their own homes! Whose property were they trespassing on when they paid their rent, or paid the market price for their own home? Who did they steal from?

You may think me obtuse: after all, the answer is that these people trespassed on the land collectively owned by all citizens of the country they’re in. But this frankly ignores the reality that the laws of the US, and most countries, recognise no such concept as collective ownership: if the land belongs to you, John Doe, then you get to decide what to do with it, as long as all applicable real estate, zoning, or tenancy laws are followed. The furthest that most democracies go is limiting the sale of land to foreigners, but in such cases, foreigners remain free to rent their own homes from citizen landlords: after all, the homes belong to the individual citizens, not to the state.

Now, am I saying that there is no public interest in managing the flow of migration, no sovereign authority competent to regulate the flow of people across borders? No; I simply hold that the authority of governments to regulate borders flows from the public interest — not “collective property rights”, which don’t exist outside of communist states which refuse to recognise an individual right to private property.

The invocation of “property rights” as an excuse to dispossess people of property they have paid for in this particular instance is particularly ridiculous, because in no other arena of public life in a modern civilised state do we see such logic trotted out. When the government bans you from building a meth lab in your backyard, nobody says the government is justified in doing this because the citizens that collectively own your land haven’t given you permission to do that. The problem with you building a meth lab on your land isn’t that you failed to obtain the necessary permission from the collective that owns it. The problem is that the public has an interest in not having their own homes burned down if your meth lab explodes.

Immigrants who actually enter with the intention to commit crime, to steal, to trespass on private property — these are immigrants the government ought to detain, punish, and perhaps exclude via deportation. There I think I and the cartoonist have no quarrel. But where we differ is that the cartoonist clearly believes those who enter with peaceful intentions, those who pay for the homes they live in and the food they eat with the wages of their own sweat, are somehow also tantamount to criminal trespassers.

It is as though you tore down the treehouse I built in my backyard, using the lame excuse that some people might build meth labs in their backyards; that if I really wanted to build a treehouse I should have waited eighty years in line for the requisite bureaucratic approvals to prove that I’m not building a meth lab; that if I don’t like waiting eight decades to jump through bullshit hoops just to go about my own quiet business, I still have no right to question this because it’s the public’s land, not my own.

When it comes to travel, there is an obvious public interest in detaining criminals, treating contagious disease-carriers, and deterring invading armies. This is equally true inside a nation’s borders as it might be true outside. The health and security of the populace are obvious public interests where governments have a role to play. To the extent that we might impose restrictions on where someone can travel, these controls are justified not by imaginary collective property rights, but by the defence of the nation against actual threats to public safety and order.

I say, if someone wants to go somewhere in peace, and is willing to pay the required fare, it’s simply none of my business where that person goes. As long as he doesn’t trespass on my home, I have no business interfering with the peaceful conduct of that person. And if that person pays market rent for a home, I certainly have no business telling that person he is a trespasser — that he ought to get out of the home he has already paid the market price for.

It is all the more shameful and regretful that this ignorant, dehumanising cartoon had to mark the festival of Thanksgiving — a traditional American holiday which commemorates the cooperation of Pilgrims who immigrated to North America with the native Americans who welcomed them. In reality, of course the picture is much less rosier than the traditional account; the Pilgrims themselves might have had peaceful intentions, but many other European colonists were certainly more invaders than immigrants. And of course there is something to be said for the accuracy of this depiction, from a New Yorker cover marking Thanksgiving a few years back:

New Yorker cover of Pilgrims as illegal immigrants

But all the same, whatever the evils wrought by invading colonists, the people of the United States today owe their heritage to peaceful immigration. Most of their ancestors — poor Germans, Irish, Italians — came not to steal land, but to rent or buy their own homes in peace, and build a better future for their families through hard work. Thanksgiving is a holiday which at least in the popular imagination marks the American legacy of immigration — and yet ironically, sentiments like those of the Indianapolis Star cartoon endorse Soviet- or Maoist-style collectivism, the antithesis of all that the US stands for!

Amidst all those Americans who will mark this Thanksgiving by complaining about immigrants who have done nothing worse than crawl through sewers for the chance to pay market rent and earn a market wage, I hope at least some might remember the words of another President, one George Washington:

The bosom of America is open to receive not only the Opulent and respectable Stranger, but the oppressed and persecuted of all Nations And Religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.

There was no qualification for who could or should be welcomed, as long as their conduct was decent. Most immigrants conduct themselves no worse than anyone else: they pay the fair price for their homes, and they expect only a fair wage for their labour. There is nothing indecent or improper about that. The janitor in your office and the line cook in your cafeteria are not invading anyone’s home. It disgraces Washington to pretend otherwise — to pretend that paying rent constitutes theft and trespassing.

People say that today is different; that things have changed. That’s not how I see it. People have always used bigotry to justify excluding innocent people from our societies, always ignorantly used prejudice to justify treating common people as though they are criminals. And people struggling to earn the dignity of a better life with honest labour have always been willing to risk it all for their dreams of a better tomorrow. It is as true today, and as true for people of all creeds and colours, as it has ever been:

Liu said he was happy to hear what his children told him one day about American history that they studied at school: “America was actually founded by people like dad who was unhappy with his home country and decided to take a boat to come to America.”

Liu said, “I heard their boat was called the May Flower. Mine was called Golden Venture.”

There may be much to regret in the history of Thanksgiving — in how many European newcomers to the Americas came as invaders, rather than peaceful immigrants. But all the same, the legacy of Thanksgiving is one of freedom of movement, freedom to search for a better life wherever your peaceful ambitions may lead you.

I am not American myself, but I am grateful today that I at least have the unearned privilege of being able to live in peace in the US. I am grateful that America’s legacy of open borders defended moral decency and civilisation from the depravity of dictatorship during World War II; that, as my German colleague Hansjoerg Walther says, American open borders changed the course of world history. I am thankful for the truly American legacy of open borders:

Haudenosaunee protest new border regulations

To all my American friends, happy Thanksgiving.

Immigration And Property Rights

Opponents of immigration often compare nations to households. Under this analogy, citizens are members of the household, while an illegal immigrant is “like a roommate who doesn’t pay the rent.” We wouldn’t allow someone to barge into our household and use all of our private property, so why would anyone allow an immigrant to barge into a country and attempt to find a job?

Weaknesses of this analogy aside, it rests on a view of property rights that is perhaps best outlined here by blogger Simon Grey. In summary, the argument goes:

  1. Under most reasonable people’s understanding of property rights, a single owner of private property is entitled to keep anyone of his or her property for any reason whatsoever.

  1. A group of private property owners on adjacent properties may fence their properties together and do likewise.

  1. Such a group of property owners can further outsource the management of property linkages, such as common roads, sidewalks, etc. to a third-party (e.g. a homeowners’ association) if they so choose.

  1. The above is similar enough to a state that appeals to property rights are consistent with this analogy.

I find this argument unpersuasive, for following reasons: First, under this argument, natives also have a right to transact with immigrants, thus the concept provides no special reason to oppose immigration. Second, because this argument makes certain assumptions about governance of the commons, it ceases to be an argument about property rights and reduces to a declaration about moral governance (an argument which can be disputed on a purely moral basis independent of property rights). Finally, advocating for open borders is in no shape or form a violation of anyone’s property rights.

Some Problems With Collective Property

Property transactions involve property’s being either bought-and-sold or rented. Unless an immigrant intends to sleep on the streets, someone within the country has voluntarily elected to either sell or rent property to the newcomer. And while it’s always true that one might run away from his or her debts, the fact remains that any immigrant is always a party to some kind of business transaction in being here. Unless those business transactions occur exclusively among fellow-immigrants (a totally unreasonable assumption), immigrants are trading with domestic natives who wish to trade with them, too. Thus, this is exactly the opposite of “a roommate who doesn’t pay his rent.”

Almost paradoxically, the anarcho-capitalist counterfactual utilizes just this rationale in its argument against open borders. The argument is that, because every free market transaction is a de facto “restriction” on absolutely uninhibited use of another person’s property rights, the open borders concept is logically impossible. Clever logic like this is classic Hans-Hermann Hoppe, but it nonetheless misses the mark.

Giving things away for free is hardly what we have in mind when we argue for free markets. Similarly, opening borders to free human migration means allowing people to travel so that they can solicit the kind of free trade to which Hoppe refers. Knocking on doors, renting apartments, and answering wanted ads are not the kinds of activities we typically call property rights violations, and this is all we really have in mind when we talk about open borders. The anarcho-capitalist counterfactual is neither an argument against this kind of activity nor a particularly strong justification for the restriction of it.

Suppose I live in a private, gated community with Steve Sailer, Joe Arpaio, and Mike Huckabee. Further suppose that John Lee wishes to live in our community. If John wants to purchase or rent land from Sailer, Arpaio, Huckabee, or the homeowners’ association in which theirs is the majority opinion, they would be within their rights to decide that they don’t want John in their community, and refuse to sell or rent to him. But what if I choose to rent my property to John? Aren’t I within my own property rights to enter into a leasing agreement with John?

Opponents of immigration may counter that my participation in the homeowners’ association bars me from doing so. If true, what’s to stop me from ending my contract with the homeowners’ association and renting to John, anyway?

Only by asserting that the homeowners’ association’s collective control over my personal property – i.e. by asserting that collective property rights trump individual property rights – can we conclude that I cannot rent to John. Of course, opponents of immigration can always invoke the principle of collective property rights to argue against open borders, but such claims run contrary to the spirit in which property rights were invoked in the first place.

After all, I doubt that what conservative opponents of immigration have in mind is the supremacy of collective use of property over individual property rights. If they did, a significant shift in public opinion would invalidate their argument. Indeed, a significant shift in public opinion might even invalidate their individual claim to property.

Claiming The Commons

A second problem with the property rights argument against immigration is that it assumes that only immigration’s opponents own the commons. Embedded in an appeal to property rights to close the border is the assumption that the border itself and the state mechanisms deployed to enforce it work only for those who oppose immigration, and not for those of us who do not.

In truth, public land, public offices, and public resources are merely stewarded by the state. We call it “public property” only because it is not owned by private individuals. It is tempting for libertarian minds to reason that this is unfair or inappropriate – perhaps such reasoning even has a sound basis – but so long as property is owned and operated by the state, it is subject only to the will of the state.

Therefore, if the state decides to take an anti-immigration policy stance, the borders will be closed. If the state chooses to open the borders to the many benefits of free human migration, the borders will be open.

Vipul Naik previously summarized how the state might choose to govern its decisions here:

  • Radical agnosticism: The nation-state’s government can admit or deny non-citizens in a completely arbitrary fashion, without having to justify itself to either citizens or non-citizens. In this view, whatever the government decrees is the right thing.

  • Agnostic democratic fundamentalism: Non-citizens should be allowed or denied entry based on whether the majority of citizens would consent to their entry. […]

  • Citizenism via democratic fundamentalism: Here, elected representatives need to make decisions based on what the majority wants. But in addition, individual citizens, whether as voters or political lobbyists or elected representatives, need to make and justify their political decisions using citizenist premises.

  • Citizenism as a direct basis for political decision-making: Here, elected representatives directly make decisions on a citizenist basis, irrespective of what the democratic majority decrees. In the ideal world here, the ruler is a benevolent citizenist dictator.

Thus governance of the commons effectively reduces to a choice between the arbitrary decisions of our rulers, the democratic process, or Citizenism.

Nearly everyone agrees that the first choice is senseless by virtue of its being arbitrary.

Meanwhile, if proponents of the property rights argument object to democratic fundamentalism under the assumption that it violates their property rights, they must not subscribe to the principle of collective property rights discussed in the previous section. (Thus, my desire to trade with immigrants is an exercise of individual property rights equal to their desire that I not trade with immigrants.)

Finally, if proponents of the property rights argument wish to object on grounds of Citizenism, then they are not really making a property rights argument at all. Instead, they are arguing that those property rights held by immigrants and the native citizens who choose to trade with them can and should be violated if the transaction fails the Citizenist moral test.

In light of the above, it seems that property rights arguments cannot appeal to the commons at all and truly remain property rights arguments.

Ethical Shortcomings

The previous two sections discuss problems with the validity of the property rights argument, but this argument isn’t just invalid; it’s also irrelevant. Why irrelevant? Because I need not deprive you of your property rights to make the case for open borders.

Consider Simon Grey’s position:

Let us also suppose that the man and his neighbors are all of the same ethnicity and thus decide to form a group that allows all members to utilize each other’s properties for travel (with reasonable but equal limits, of course) while simultaneously blocking everyone who is not a member of the group from crossing the properties at all.  Would all the members of this group be within their rights do so, even if we personally find this to be quite distasteful?  Again, the answer is yes.

Or, alternatively, as expressed by blogger “The Crimson Reach:”

People have bad reasons for how they wish to dispose of their property, of course. We can second-guess them and complain about them. But we too might have bad reasons for doing so…. In any event, simply having a bad reason for what you want to do with your property can’t, in and of itself, add up to an argument that you shouldn’t be allowed to do so. Not without, again, demolishing the concept of property.

We see that appeals to property rights are often made with full awareness of the fact that one’s motives for closing borders might not be good at all. They might even be terrible reasons for closing the border. This is likewise acknowledged in the academic literature. For example, philosopher Christopher Heath Wellman writes:

First, let me stress that I seek to defend a deontological conclusion about how legitimate states are entitled to act, not a consequential prescription for how to maximize happiness or a practical recipe for how states might best promote their own interests. I understand that groups can have weighty reasons to limit immigration in certain circumstances, but what the best policy would be for any given state’s constituents (and/or for those foreigners affected) will presumably depend upon a variety of empirical matters, matters about which others are more knowledgeable. Thus, I doubt that any one-size-fits-all immigration policy exists, and I, qua philosopher, have no special qualification to comment on the empirical information that would be relevant to fashioning the best policy for any given state. However, if anything, I am personally inclined toward more open borders…. My aim is merely to show that whatever deontological reasons there are to respect freedom of association count in favor of allowing political communities to set their own immigration policy.

All three people I have quoted argue the case that states, like individuals, are within their rights to determine to close the borders if they so choose.

But so what? Open borders advocates don’t want to deprive anyone of their property rights. It is full cognizance of and respect for property rights that moves us to make the case for open borders through persuasive reasoning. We certainly know that you are freely entitled to oppose immigration. But we think the benefits are clear, obvious, ethical, and rational; hence, we aim to make the case for opening the border to human migration – by choice.


In light of all of the above, I can only conclude the following:

  • Every economic transaction between an immigrant and a native reflects an implicit endorsement by the native of that immigrant’s status in the country, in full consideration of that native’s property rights. Thus, property rights are as much an argument for open borders as they are against open borders.

  • Ignoring this fact amounts to a presumption that either immigration restrictionists feel they own the commons, or feel they are more entitled to public property than the rest of us. But as we have seen, this position calls into question its validity as a position based on property rights.

  • Even if immigration restrictionists are within their rights to close the borders, that still does not address the fact that the arguments for opening the borders are an appeal to change minds, and are therefore no threat to anyone’s property rights whatsoever.

On all points, I find the property rights argument against immigration unpersuasive.

Citizenists need to clarify their views on moral side-constraints (a response to commenters on Caplan’s Himmler post)

The occasionally nasty but frequently lucid discussion triggered by Bryan Caplan’s provocative post about Himmler shed new light, for me, on citizenism. While I’m convinced by Vipul’s arguments that citizenism is (much) more influential than its currency in public discourse would suggest, it’s unusual to encounter people explicitly defending it. However, to Caplan’s challenge– “How did Himmler misapply citizenism?”– I think the citizenists’ answer is quite clear: moral side-constraints. My favorite comment was by Theo Clifford, who basically summed up the whole discussion…

The obvious point here is that the citizenists show up and reply, “of course we believe in moral side-constraints to citizenism!” And then it’s the same old philosophical and empirical argument about whether freedom of migration should be one of those side constraints.

… while also pointing to where the discussion could most productively go next. I would characterize Peter Hurley, Tom West, Eric Falkenstein, Kenneth Regas, and possibly Hansjorg Walther as suggesting some form of moral side-constraints, whether they were themselves self-identified citizenists (like Ken) or definitely not (like Peter) or non-committal (like, I think, everyone else). Of course, I may be biased because “moral side-constraints” is my term, and I noted early on in the discussion that this was a tack citizenists were likely to take. I was right, and the discussion tends to confirm my knee-jerk reaction that citizenists aren’t like Himmler because they accept, albeit usually implicitly and half-unconsciously, moral side-constraints. By the way, my least favorite comment was Eric Falkenstein’s response to Theo Clifford:

Theo: citizenists show up and reply, “of course we believe in moral side-constraints to citizenism!”

That’s silly, characterizing the reasonable limits of a citizen-centric policy as an ad hoc confabulation. Every virtue becomes a vice if sought to an extreme. Balancing competing principles (liberty vs. property) is what makes prudence essential. Moderation in all things.

This comment is the kind of vapid, platitudinous, condescending humbug that gets in the way of serious argument. Falkenstein wants to replace the useful phrase “moral side-constraints” with the loaded, cumbersome phrase “reasonable limits of a citizen-centric policy,” because he doesn’t want to accept Theo’s invitation to engage in “philosophical… argument about whether freedom of migration should be one of those side-constraints. ” His mention of “property” is an allusion to an earlier comment in which he argued that “a nation is the ‘commons’ of a population,” a view which I think I could pretty easily tear apart in an argument but which has at least a crude surface plausibility. But to quote “property” against open borders advocates as if they hadn’t heard of it is ridiculous. No, Theo is right to posit that all citizenists seem to accept moral side-constraints of one kind or another, and to steer the conversation towards a discussion of what appropriate side-constraints are. Incidentally, Hansjorg Walther’s comment

Just a question. Sailer in the quote you give says the following:

– My starting point in analyzing policies is: “What is in the best overall interests of the current citizens of the United States?”

How do you get from that to your claim that his position is equivalent to Himmler’s position:

– Himmler embraces absolute devotion to “the best overall interests of the current citizens of Germany” as the highest morality.

Can’t you take something as a starting point for analyzing a policy without embracing it with absolute devotion as the highest morality which trumps everything else?

I don’t see how you can make this leap.

… is important because Steve Sailer, coiner of the term “citizenism,” endorsed it with a one-word comment: “Right.” Perhaps I’m overthinking this, but Sailer seems to have picked his moment shrewdly. For his comment dodges the Himmler analogy while being extremely non-committal. Citizenism, he suggests, is his starting point for analyzing a policy, but it does not follow that he embraces absolute devotion as the highest morality. Maybe Sailer means that he acccepts some other, higher morality as more absolute, but citizenism as a starting-point, as indeed even Vipul suggests might be appropriate when a policy doesn’t affect the welfare of non-citizens much. Maybe Sailer does embrace absolute devotion to citizenism as the highest moral value, agreeing with Himmler, but doesn’t want to say so openly, and is eager to establish that he can’t actually be proven guilty of that view based on what he’s written. Maybe Sailer wants to pursue citizenist ends subject to a certain basic respect for human rights. At any rate, he doesn’t say. Which is why I think he’s shrewd. This is not an argument that can work out favorably for him. He’s got popular prejudices on his side at least to some extent. He does not have reason on his side. “I’m not like Himmler, but I won’t tell you why I’m not,” may be his best bet here. But I shouldn’t make too much of an argument from near-silence.

By contrast, Kenneth Regas, self-declared citizenist, directly met Caplan’s challenge with admirable forthrightness, in one of the clearest defense of citizenism by an avowed citizenist that I have ever heard. For the rest of this post, all blockquotes are from his comment. Continue reading “Citizenists need to clarify their views on moral side-constraints (a response to commenters on Caplan’s Himmler post)” »