November 14, 2015

On November 5, 2015 the eminent Lew Rockwell lectured on “Open Borders: A Libertarian Reappraisal (though the link to the article is quite different, and more honest: "Open Borders are an Assault on Private Property”). Let’s count Lew and Ron Paul as the two greatest living libertarians. The exact order is irrelevant. The point here is that I acknowledge that Lew, along with Hans Hoppe (another libertarian heavyweight), have contributed tremendously to the cause of liberty. But they’re cultural conservatism has lead them astray on the question of immigration and borders.

Like the left-right binary in American politics, the open-closed border binary is a poor framework for a libertarian analysis of immigration. A more nuanced approach is required.

To arrive at the consistent libertarian position, we must first inquire as to whether the borders to be opened or closed are private or public borders.

In the case of private borders, libertarians will agree that whether the particular private border in question (say, the door to your house or business) should be open or closed is up to you, the owner of the property enclosed by the private borders. Libertarians will also agree that the owner of the enclosed private property, and any contracted associates (like private security), have a legitimate right to enforce those private borders. This right of enforcement is an extension of self-defense. As individuals have the right to forcefully prevent trespass on their body (self-defense), so to do they have the right to prevent trespass on their private property, since property–as Bastiat argued–is simply the natural extension of one’s personality.

That is the case of private property borders. The question that many libertarians struggle with–myself included–has to do instead with political borders.

Political borders are illegitimate. Agents of the state have employed coercion at some point in the past to deprive private owners of their just property claims. After the coercion occurs, the stolen private property is euphemistically referred to as public property. “Public property” is an oxymoron. I hasten to clarify that the word “public” in “public property” really means “state.” Few if any operate under the assumption that “public” property is literally controlled by the public (try entering a policed public park past “closing time” and see how much control you have). Those who refer to “public property” should call a spade a spade; namely, state property. This makes the paradoxical status of the term even more apparent.

Strictly speaking, states have no legitimate property, because state agents did not voluntary trade for, homestead, or receive as a voluntary gift the property over which they claim ownership. This is not to say that the particular property in question doesn’t exist, just that its status as “owned by the state” is illegitimate.

Property that is controlled by the state under the auspices of “state (public) property” is enclosed by state borders. I’ll refer to these state borders as political borders to contrast them with private borders. We might think of national borders as the prime example of political borders, but others exist. The border (usually an invisible line) around your local state park, the doors to your local Post Office, and the barbed wire and concrete walls at state jails are all political borders, enclosing (illegitimately controlled) so-called “state property.”

Just as the notion of state property is inherently illegitimate in the libertarian view, so too are the political borders that enclose it. If the status of the property in question is illegitimate, so too is the status of the borders surrounding that property. Just as state property is really expropriated private property, political borders simply indicate where in real life this particular quantity of stolen private property begins and ends. Whereas private borders arise from mutual agreement through voluntary exchange, political borders arise from involuntary exchange; thus, they are arbitrary. Arbitrary, political borders carry no weight in libertarian analysis of immigration.

Thus far we have established a few basic facts. Private property is the only legitimate form of property. State property is internally contradictory, since state agents may not legitimately acquire property. Enforcement of private borders is necessarily just and legitimate, since individuals have a right to self-defense and private property-defense.

But what about enforcement of political borders? This is where many libertarians, like Lew and Hans, go astray.

Enforcement of political borders by state agents must be judged as necessarily illegitimate, since it constitutes a violation of the non-aggression principle, and assumes that state property is legitimate.

State agents who enforce political borders by employing coercive force against an individual seeking entrance to so-called state property is a violation of the immigrant’s private property rights. Indeed, an immigrant who attempted to cross a political border and who was confronted by a state agent and threatened with force could legitimately respond with defensive force.

The core objection to this point is that the state property, as discussed above, is actually stolen private property; therefore, the argument goes, the original owners of the now-stolen private property should have the ultimate say as to who may enter the property and who may not. Since private persons still have a right to their stolen property, they still have a right to enforce the borders surrounding that property; that is, prevent would-be trespassers (immigrants) from entering.

For argument’s sake, and to the benefit of those who support political enforcement of state borders, we can set aside what may very well be an impossible problem to solve: the actual assignment of private property titles back to the true owners. Whether or not it is technically possible now or in the future to right the wrong of state expropriation and return stolen property to its rightful owners is not the point here.

The problem is that the closed borders crowd doesn’t get to have its cake and eat it too. One cannot consistently claim that state property is illegitimate, which means that state borders are also illegitimate, and then in the next breath claim that violations of the property rights of would-be immigrants by state border enforcement agents is acceptable. Either the property is stolen, is currently under the illegitimate control of state agents, and should be returned to private persons, or not.

Suppose X legitimately owns a car. Y steals the car and maintains illegitimate control over it. Z wants to enter X’s car that Y currently and illegitimately controls. X, tossing out his principled stand that Y is a thief and the car is rightfully X’s property, pleads to Y to prevent Z from entering the car. X goes further. X somehow maintains that Y should forfeit his nature as thief and adopt the role of valiant protector of X’s property, in order to preserve X’s current (that is, better) culture. Y enjoys the hell out of this. He’s managed to distract X away from the fact that his car has been stolen, and instead convinced X that Z poses a terrible threat to the stolen car. Maybe Y has even persuaded X that once he’s done protecting the stolen car from Z, he’ll hand it back over to the rightful owner X.

This is what the closed borders crowd would have libertarians believe. State agents–thieves–despite the illegitimacy of their control over stolen private property, should exercise that control by violating the private property rights of would be immigrants. In this way, state agents might temporarily disavow themselves of their thieving nature, and instead act as if they were legitimate stewards of the property they themselves stole.

The problem with this is that state agents enforcing political borders are not voluntarily contracted agents of the original owners of the stolen property. I don’t know if this is a hangover of the notion that government police exist to “protect and serve,” but if it is, it should be thrown out. If closed borders advocates were consistent in their support for the enforcement of political borders, they would first be engaged in petitioning for their portion of the stolen property. After all, there cannot be legitimate enforcement of private property borders without the reestablishment of those private borders in the first place.

The appropriate position in the XYZ case is: Y should return the car to X. The appropriate immigration position is: political borders are illegitimate; state property should be returned to private individuals so that private borders may be established; private persons should then enforce their private borders as they see fit. In the period between now and the return of the stolen property, we uphold the non-aggression principle; namely, acts of violence carried out by state agents against would-be immigrants is illegitimate.

Only the enforcement of private borders against trespass is legitimate. Defense of justly acquired property and one’s person are exceptions to the non-aggression principle’s prohibition against the use of force. In other words, if something has been unjustly acquired, it is not legitimate for the individual who unjustly acquired it to continue to violate the rights of others by asserting his control over the stolen property.

It is important to point out that a thief does not defend his stolen loot against others who would seek to get in on the action, at least not in the meaningful sense of the word. In actuality, the thief simply reasserts his control over the stolen property by forcefully preventing others from acquiring it. The thief has not committed some act of defensive valor by further preventing use or access to what he has stolen.

Here we encounter another objection. In the XYZ case the argument goes, “are you suggesting that it’s OK for Z to use the car that Y stole from X?” In the immigration case the argument goes, “are you suggesting that it’s OK for immigrants to trespass on what is really the rightful property of private persons?” This is uncharted territory in the immigration debate for libertarians.

In the XYZ case it is clear that if Z uses X’s car without X’s permission, then Z is violating the property rights of X, just as Y has. But in the case of immigration, things are less clear. Take the case of land controlled by the federal government. It is unclear how private property borders over federal land would be drawn if the federal government were to one day relinquish control of the land back to the rightful owners. The private property has been expropriated and the true private borders have been erased.

“Ah-hah!” the closed border crowd proclaims. Since it is unclear who really owns what portions of the land currently controlled by the state, the state must act as steward of the public and prevent immigration, they say. But wait. It is not clear that the true owners of the land currently under the illegitimate control of the state would in fact choose to exclude new-comers to their property. The true owners may, for instance, recognize the economic benefits of employing low cost labor, and invite in as many immigrants as space permits. In this case, enforcement of political borders by state agents under the assumption that the state agent is acting as temporary steward of stolen property to be returned would be acting against the wishes of the true owner.

What gives? We cannot actually know whether true owners of stolen property currently controlled by the state would open or close their private borders to prospective immigrants. Yet somehow, the closed border crowd suggests a typical one-size-fits-all government approach: close the borders and keep them out–violations of the natural rights of immigrants be damned.

This is problematic.

As libertarians, we want the circumstances of reality to reflect as closely as possible the decisions made over the use and exchange of private property by its true owners. In other words, we prefer that reality align as much as possible with the non-aggression principle. In the case of immigration, the libertarian position is that the true owners of property currently controlled by the state should be able to open or close their respective (private) borders to immigrants as they so choose.

Some refer to this as the “open border” position. It’s not. If we weren’t such sticklers for private property, it would be the “anti-border” position. In fact, this is the “anti-political border” position.

So far we have established the following: the only borders that may be legitimately enforced are private ones; state property is illegitimate; state borders are illegitimate; it is inconsistent to claim that state property and state borders are illegitimate, and to then claim that state border enforcement agents should violate the NAP against prospective immigrants anyway; the state is not a voluntarily contracted steward of the public’s property; even if state agents were to suddenly become trusted stewards of true owners of property, a “keep the immigrants out” policy ignores the possibility that true owners may prefer to invite immigration.

I recognize that some true owners of property currently controlled by the state would prefer to close their borders to immigration. But crushing the rights of the pro-immigration true owners in order to please what we speculate to be the preferences of the anti-immigration true owners is not a consistent libertarian position. The consistent position is that true owners who desire immigration onto their property should be able to open their borders, and those who desire to keep them closed should be allowed to do so as well. The only way to accomplish this is to abolish state borders, and reestablish private ones.

Lew sites various consequences of so-called “mass immigration” today as reasons why there should be less migration. These reasons fail to provide state agents the moral authority they would need to violate the private property rights of prospective immigrants and immigration-friendly true owners with the implementation of what is commonly referred to as “closed border” policy–but which is really a policy of aggression and reassertion of state control over stolen property.

“Cultural collapse”–as if a culture of cat videos, the Kardashians, and state-lust isn’t begging for collapse–is not a reason to coerce others. The possibility of the demise of a “liberal order”–as if anything in the United States of America even remotely resembles a classical liberal order–is not a reason to coerce against others. The correlation between foreign-born immigrants in this country and consumption of welfare services is not a reason to coerce others. The possibility that immigrants may commit crimes in the future is not a reason to coerce others, just as my conviction that San Francisco is rife with wild, leftist, would-be future aggressors does not justify my nuking the city at present. Malicious intentions of political authorities who choose not to order the violent enforcement of political borders is not a reason to coerce others, just as my belief that if a political authority allowed prostitution businesses in my neighborhood with the hope that it would distract libertarian dissent with sex does not justify my coercing against prostitutes.

The question for libertarians concerned with immigration is not “should the national borders be open or closed?” The question is “should there by political borders in the first place?” And given that political borders exist, the question should become “how do we get rid of them?” not “how do we keep people from crossing them?”

Problems persist for the closed border crowd. Though many make what is a more innocuous-sounding argument to the effect of “well, we just can’t let them in,” the closed border position boils down to outright support for forcefully preventing individuals from entering the country. Ostensibly, some institutions or procedures must be established to do so (think of Trump’s wall, a fence, or a drone bombing zone). What will the closed borders crowd say when these state institutions and state procedures are used to keep citizens in, rather than immigrants out?

As a libertarian writer, I’ve found that there is always one solid person with which to end an article: Ron Paul.

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