Several months ago, when I on went on Dave Smith’s podcast Part of the Problem to discuss my problems with his promotion of Stefan Molyneux, the conversation eventually turned to our differences on immigration. Smith, in trying to make his point that it is not unlibertarian or in violation of anarcho-capitalist theory to support state border enforcement while the state exists, used the analogy of someone smoking meth inside of a public school, reasoning that it is reasonable for the school to use force to remove the meth user from the premises. For Smith, this was analogous to the state using force to keep out foreigners.

My response at the time was that the difference is that the meth user is being disruptive in interfering with classes. Although I will be the first to admit that my reasoning could have been better, something about the situation seemed different to me in a way that I could not put into words, given my unfamiliarity with the argument he was making. Smith contended that for someone to say that national border enforcement was not a libertarian position, they would also have to say that the school could not remove the meth user.

I will note that there is merit to the argument that the public school could not remove the meth user and stay consistent with libertarian principles. This argument was put forward as the “bum in the library” example by anarcho-capitalist scholar Walter Block:

But what if it is a public library? Here, the paleos and their libertarian colleagues part company. The latter would argue that the public libraries are per se illegitimate. As such, they are akin to an unowned good. Any occupant has as much right to them as any other. If we are in a revolutionary state of war, then the first homesteader may seize control. But if not, as at present, then, given “just war” considerations, any reasonable interference with public property would be legitimate.

The fact that certain outcomes (i.e. a “bum” in a library) are regarded as “bad” by the majority of people is not an argument that immigration enforcement is in line with libertarian principles but is instead used in an argument by the person making it for sacrificing those principles. If someone were to say, for example, that they recognize that individuals are able to use drugs given that they have the right to put whatever they want into their bodies, but that they are against drug legalization because of the way it may affect society or increase healthcare costs, this does not make drug prohibition a libertarian position; it would instead be a pragmatic rejection of libertarian principles. Likewise, border enforcement cannot be said to be a libertarian position in itself, even if some who call themselves libertarians argue for it pragmatically (wrongly, in my opinion).

Alternatively, let us for the sake of argument dismiss Block’s reasoning as illegitimate and contend that it is acceptable under libertarian principles for the school to remove the meth user. Are we now at an impasse, where we must either admit that libertarianism permits the state to engage in immigration enforcement while the state exists or knowingly contradict ourselves? Not quite, based on an argument put forward by Murray Rothbard, the father of anarcho-capitalism.

In Rothbard’s “Confiscation and the Homestead Principle,” he reasons that by way of the homesteading principle, “property justly belongs to the person who finds, occupies, and transforms it by his labor.” He applies the real-world example of state universities:

The proper owners of this university are the “homesteaders”, those who have already been using and therefore “mixing their labor” with the facilities. The prime consideration is to deprive the thief, in this case the State, as quickly as possible of the ownership and control of its ill-gotten gains, to return the property to the innocent, private sector. This means student and/or faculty ownership of the universities.

Rothbard goes on to say that he would favor the students over the faculty, in part because the faculty are “to some extent a part of the state apparatus.” Applying this reasoning to Smith’s example of a public school, one could argue that the students (and to some extent, the faculty, although this can be negated by Rothbard’s state apparatus reasoning) are the homesteaders in this situation, given that they are using the school for the purpose of education (libertarian arguments as to the quality of this education notwithstanding). In such a scenario, the students (or someone acting on behalf of them) would be justified in removing from the premises someone who is being disruptive. As I alluded to earlier, this is in no way condoning the current state of compulsory public schooling, but such schools are supposed to be at least in theory about providing an education to children.

But wouldn’t using agents of the state to remove someone from a school still be in conflict with anarcho-capitalist theory? To a point, yes, given that the state itself is considered to be illegitimate. But such a scenario would be more analogous to state agents responding to an actual “victim” crime (such as robbery, murder, etc.) than the “crime” of crossing a national border without the state’s permission.

Accepting this line of reasoning would bring us to another question: wouldn’t this also mean that the state could act to keep out foreigners on behalf of its citizenry? I contend that the answer is no. The amount of barren, unimproved land within the United States is massive. Given that some mixing of labor or use is required to homestead land under Rothbardian theory, a random man in Iowa has no more claim to barren land in the southwest United States than does a random man in Guatemala. The issue of whether “net-taxpayers” have the right to government-owned land (which I’ve discussed in detail here, finding that such an argument is full of holes) is one of restitution (which would also be owed to victims of the state across the world, not just domestic net-taxpayers), not homesteading. There is no victim in a scenario where someone peacefully crosses through land that does not have a legitimate owner; the way to create a victim is to use violence against the person to prevent them from crossing.

One could try to stretch to make an argument that under “Confiscation and the Homestead Principle,” those currently enforcing immigration restrictions on the ground would at least have the right to the areas designated for legally crossing the border, but Rothbard’s contention that those who are part of the state apparatus are less deserving would seem to negate such a claim. Even if this were to be accepted, for the sake of argument, there would still be countless square miles of barren land throughout the border and within the United States that could not be considered to have already been homesteaded.

Throughout this article, I purposefully did not take a position on whether I agree with the Blockean or Rothbardian argument more, as I wanted to illustrate that there are multiple possible arguments that can be used to dismiss the claim that “immigration restriction can be libertarian because removing an unwanted guest from a public school can be libertarian.” I will say, however, that the argument that the state, while it exists, should act as if it were a private property owner (as put forward by Smith and others) is extremely dangerous. The entire point of anarcho-capitalist theory in the Rothbardian tradition is that the state is not a legitimate property owner but a “gang of thieves writ large.” An anarcho-capitalist acknowledging that fact, and then essentially ignoring it to say that we should pretend the state is not that while the state exists, is like saying that we should consider a fugitive serial killer to be a doctor helping out his victims with assisted suicide until he is captured. It is getting the theory right in the beginning and then proceeding to misapply it to the point where the spirit of what was said is ignored.

As I have attempted to illustrate, the idea that state immigration enforcement is justified from a libertarian standpoint by the “meth user in a public school” example is easily objectionable. Either the decision to remove the meth user from the school is a deviation from libertarian principles that in no way legitimizes other deviations as part of strict libertarian theory, or it is based in homesteading grounds upon which state immigration enforcement cannot stand. It is my hope that Smith and others who have made this argument move to abandon it in favor of the idea that state border enforcement should be opposed.