Tag Archives: 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.

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.