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:

A 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:

.@FBastiat1 @pmarca Great. I’ll charge rent, buy more houses, and soon be the richest man in the world. — Bryan Caplan (@bryan_caplan) July 17, 2014

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:

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.