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An article was recently written on Being Libertarian attempting to “debunk” the claim that net taxpayers are the rightful owners of public property. This debate is an extension of the broader intra-libertarian debate over borders and immigration. The author of this article, being an open borders advocate, believes that public property, instead of being treated as the rightful property of net victims of taxation, should be freely and indiscriminately accessible to anyone who wishes to migrate to the country in question.

There have already been a number of excellent articles written against the open borders position such as this one, but it may be helpful to specifically address the arguments presented here, as well as the more particular question of whether the net victims of taxation have a legitimate claim to public property to the exclusion of others.

First, as must always be done when discussing an issue from a libertarian perspective, libertarianism itself must be defined. Many libertarian theorists from Murray Rothbard to Stephan Kinsella to Walter Block to Christopher Chase Rachels have provided excellent concise definitions of libertarianism, but for the context of this debate, I believe Hans Hermann Hoppe’s definition laid out in his PFS 2017 speech will be the most helpful:

If there were no scarcity in the world, human conflicts or more precisely physical clashes would be impossible. Interpersonal conflicts are always conflicts concerning scarce things. I want to do A with a given thing and you want to do B with the same thing. Because of such conflicts – and because we are able to communicate and argue with each other – we seek out norms of behavior with the purpose of avoiding these conflicts. The purpose of norms is conflict-avoidance. If we did not want to avoid conflicts, the search for norms of conduct would be senseless. We would simply fight and struggle. Absent a perfect harmony of all interests, conflicts regarding scarce resources can only be avoided if all scarce resources are assigned as private, exclusive property to some specified individual or group of individuals. Only then can I act independently, with my own things, from you, with your own things, without you and me clashing. But who owns what scarce resource as his private property and who does not? First: Each person owns his physical body that only he and no one else controls directly. And second, as for scarce resources that can be controlled only indirectly (that must be appropriated with our own nature-given, i.e., un-appropriated, body): Exclusive control (property) is acquired by and assigned to that person, who appropriated the resource in question first or who acquired it through voluntary (conflict-free) exchange from its previous owner. For only the first appropriator of a resource (and all later owners connected to him through a chain of voluntary exchanges) can possibly acquire and gain control over it without conflict, i.e., peacefully. Otherwise, if exclusive control is assigned instead to latecomers, conflict is not avoided but contrary to the very purpose of norms made unavoidable and permanent.

Hoppe’s emphasis on physical scarcity as the basis for his property ethics framework is key, and is often lacking from the arguments of open borders proponents, as we shall see. So let’s dive into the article!

If I were to pick one issue that causes the most infighting amongst libertarians, it would almost certainly be immigration. Some within the liberty movement see controlling borders as a rightful function of government, while others see it as a restriction of liberty and a harmful intervention in the marketplace.

Already in the second sentence, we see that the author’s starting point is flawed. Libertarianism is not based on an abstract notion of “liberty,” but on a concrete framework of private property ethics. Liberty is defined in terms of property norms, not the other way around. While libertarianism most certainly supports free markets, they are merely the catallitic conditions which arise under a privatized social order, not the foundation of libertarian theory. Like with “liberty,” any libertarian conception of free markets must be logically preceded by a rigorous formulation of property ethics, not the other way around (this is why appeals to the “free movement of labor” are not real arguments unless one can logically derive such a concept from libertarian property ethics, which Hoppe demonstrates is impossible in his essay “The Case For Free Trade and Restricted Immigration”).

While this may seem like a nitpicking exercise, the distinctions drawn here are crucial to understanding the errors made in this article.

This issue is not limited to fighting between those who believe in the existence of a state and those who advocate for its abolishment; even anarcho-capitalists have fought amongst themselves over it. This quarreling comes from a disagreement over what to do with the borders while the state still exists. Those anarcho-capitalists who are against all forms of border control argue that national borders are illegitimate, as the land the state claims to own was not homesteaded in a traditional sense or acquired via a voluntary transaction with the previous owner. Rather, it was wholly claimed by a small group of people with a monopoly on force (the state) who did not actually mix their labor with the land.

The author here makes the mistake of conflating “labor-mixing” with original appropriation/homesteading. From the subjective theory of value, we know that different individuals can value the same type of resource differently. This is because individuals employ physical resources as means of pursuing their desired ends, which vary from individual to individual, and thus the utility of a particular resource is subjective for each person based on the purpose for which one wishes to employ said resource. We see, for example, that many people who live in rural, less-developed areas – particularly ranchers and farmers, enclose/emborder large amounts of “unimproved land” to claim as their own property, as a means of defending their acquired resources against uninvited latecomers. This is a legitimate “first use” of the land, and makes for just as valid of an original appropriation as one who “mixes his labor” with it. According to the author, though, such unimproved land remains “unowned” and is available for the taking. Such a standard, however, is untenable in real life and would result in massive amounts of conflict between people pursuing rivalrous uses of this “unimproved” land. Squatters, for example, would be able to trespass on on privately owned nature reserves, ranching fields, and people’s backyards. While this was surely not what John Locke intended when he developed his “labor-mixing” theory of homesteading, it is the logical consequence of it, and his theory must, therefore, be rejected as inadequate. Original appropriation or homesteading entails first use, not necessarily the mixing of labor with land.

Those who are in favor of the state enforcing borders (while it exists) argue that exclusion of outsiders is legitimate because the taxpayers are the rightful owners of public property. This idea comes from the fact that taxpayers have been robbed from in order to fund the creation and maintenance of it. The call for this property to be put into the hands of the individuals who paid for it is essentially a call for a form of restitution, in which those who had money taken from them are compensated with land rights.

Correct. The entire purpose of property norms, in fact, is to exclude uninvited latecomers from property access. Property rights do not imply a right to the inclusion of uninvited latecomers on jointly owned property such as the public property that is acquired and maintained with the stolen funds of tax victims.

One could make a convincing argument that an individual should receive the rights to what their tax money paid for, but only if logistics are ignored. There is no way of knowing exactly where an individual’s tax money went. It is possible that some net taxpayers have paid little to nothing toward the maintenance of public property, but rather had their money go toward military spending, entitlements, or even paying down the public debt. It is also practically impossible to figure out who is a “net taxpayer” and how their standing as a net taxpayer relates to others (whether they deserve more compensation than their neighbor, for instance). To theoretically make such a calculation, one would need to add up every tax amount that an individual has paid in his lifetime (of which there is likely no record, unless someone has a receipt of everything they’ve ever bought in order to calculate sales tax) and then subtract the amount that this person has benefited from government services, including entitlements, public infrastructure, and national defense. Any calculation of this benefit would be entirely subjective, as there is no objective mathematical formula that can be used to decide exactly how much an individual has gained from public services. Person A may have received an education in a public school that helped him advance further in his career than person B. Person C may have benefited more economically from the right to use public roads than did person D. Person E may have been on welfare, but this may be because his business was a victim of government regulation that caused it to fail. There is no real way of knowing or quantifying any of this.

It is precisely because there is no way to perfectly calculate restitution that this debate over the access and use of public property even exists. If perfect restitution were pragmatically possible, then that is what we would be demanding from the state. But the fact that the exact amount of restitution owed to each net taxpayer cannot be precisely calculated does not justify generating even more conflict over the stolen property in question by allowing indiscriminate access to it. To suggest such a thing amounts to tactical nihilism. Rather, we must search for the option that best minimizes the conflict over public resources generated by the state’s theft such that net victims of taxation are not victimized further than they already are. In this sense, it is not so much restitution that we are immediately seeking (although that doesn’t negate the ethical demand for it) but rather minimization of further aggression and physical conflict. An open borders policy, by expanding public property access to the whole world, would maximize conflict over public property (which, remember, still consists of scarce physical resources), which would result in the net victims of taxation being looted even more to subsidize the incoming migrants. What the author here fails to take into account is that government theft is not a static phenomenon. As demand for public resources increases, the state will be compelled to increase its looting of taxpayers, thus generating further social conflict. And when public property is made indiscriminately accessible to latecomers from around the world, a tragedy of the commons becomes ever more severe.

While not every immigrant is necessarily a direct recipient of welfare, they still make use of other public resources and also contribute to forced integration.Lew Rockwell writes:

In the current situation, immigrants have access to public roads, public transportation, public buildings, and so on. Combine this with the state’s other curtailments of private property rights, and the result is artificial demographic shifts that would not occur in a free market. Property owners are forced to associate and do business with individuals they might otherwise avoid.

Quoting Hans Hoppe, he continues:

“Commercial property owners such as stores, hotels, and restaurants are no longer free to exclude or restrict access as they see fit,” writes Hans. “Employers can no longer hire or fire who they wish. In the housing market, landlords are no longer free to exclude unwanted tenants. Furthermore, restrictive covenants are compelled to accept members and actions in violation of their very own rules and regulations.”

To prevent the maximization of conflict over scarce physical resources and the further victimization of net taxpayers, we must pursue the available immigration policy that is most in keeping with libertarian property ethics. Based on the ethical framework we have already established, such a solution would be the one that takes into account the fact of physical scarcity and minimizes the severity of a tragedy of the commons. Hoppe provides such a proposal in his PFS speech, where he argues that the state’s immigration policy should approximate private property norms as closely as possible (i.e. what immigration would look like in a completely privatized society) through an “invite-only” policy combined with a prohibition of cost externalization.

Immigration must be by invitation only. All immigrants must be productive people and hence, be barred from all domestic welfare payments. To ensure this, they or their inviting party must place a bond with the community in which they are to settle, and which is to be forfeited and lead to the immigrant’s deportation should he ever become a public burden. As well, every immigrant, inviting party or employer should not only pay for the immigrant’s upkeep or salary, but must also pay the residential community for the additional wear and tear of its public facilities associated with the immigrant’s presence, so as to avoid the socialization of any and all costs incurred with his settlement. Moreover, even before his admission, every potential immigrant invitee must be carefully screened and tested not only for his productivity but also for cultural affinity (or “good neighborliness”) – with the empirically predictable result of mostly, but by no means exclusively, western-white immigrant-candidates. And any known communist or socialist, of any color, denomination or country of origin, must be barred from permanent settlement – unless, that is, the community where the potential immigrant wants to settle officially sanctions the looting of its residents’ property by new, foreign arrivals, which is not very likely to say the least (even within already existing ‘commie’ communes).

It might not be possible to provide exact restitution to the net victims of taxation, but allowing free and indiscriminate public property access to 7 billion people eliminates the possibility of any kind of restitution and guarantees a tragedy of the commons tantamount to a socialist hellscape. However, an invite-only policy like the one Hoppe suggests allows tax victims at least some degree of control over the use and access of the public property which they rightfully own (even if it’s unclear exactly to what extent they own it).

Let’s move on.

I would personally argue that every person who has been stolen from is a victim of the state (even if they have received welfare benefits), given that they have had money taken from them without their consent. But the discussion within this article must take place in the “net taxpayer” framework, in which input and output are taken into account.

Net beneficiaries of the state are also entitled to restitution? That’s quite a bizarre position.

Let us assume for a second that we could objectively calculate who the real victims of the state are. Even in this situation, it would be wrong to say that each victim is automatically the rightful owner of public property. Such victims would certainly be owed restitution, as long as it was possible to compensate them without creating more victims (thus additional taxation would not be an appropriate method). But performing this restitution through giving the victims shares of public property is only the preferred method of those who advocate it, not a method commanded by deductive reasoning. There are numerous ways that victims could be compensated for the loss of their tax money (or for other losses); it does not necessarily have to involve state land. One can, indeed, argue that it is the best possible way to do it, but “best” is subjective and cannot be deemed to automatically be in effect.

So what’s the solution, then? How should the net victims of taxation be compensated?

Because of the fact that a method of restitution has not yet been decided upon, it is inaccurate to say that net taxpayers are already the present owners of this property. Thus, they cannot yet rightfully exercise control over it.

Ah, so they shouldn’t be compensated at all.

The author here conflates possession with ownership. The fact that net taxpayers cannot currently exercise control over public property does not prove they are not the rightful owners of it. To claim that it does is to deny the very nature of theft, for a victim of theft does not lose ownership when he is stolen from, but only possession.

To further illustrate why taxpayers are not entitled to public property, I will use a brief analogy. Suppose that a thief steals a valuable painting from me and trades it for a television. In this case, I am not the rightful owner of the television, but rather of the painting. It is what has been stolen from me and what should be returned, even if it ends up in someone else’s hands. The painting should be given back to me, with the television going back to its original owner (and the thief receiving nothing). The same is true in regard to what has happened to the taxpayer. The taxpayer has had money stolen from him, not land. The fact that the thief (in this case, the state) has traded that money for land does not make the taxpayer the rightful owner of said land. The land should be returned to its rightful owner, which if there was no previous owner, is the state of nature.

The analogy used here does not accurately describe the economics of taxation. If a thief with no legitimately acquired possessions of his own steals someone’s money and uses it to purchase certain goods, then offers those goods indiscriminately to whoever passes by and wants them, restitution to the theft victim becomes all the more difficult due to the addition of latecomers with whom conflict over the stolen resources must be resolved. Furthermore, if the beneficiaries of this “generous” thief become dependent on the thief’s handouts and demand more, the thief will be compelled to steal more. As I explained earlier, government theft is not a static phenomenon. The more demand there is for the state’s redistributive powers to be exercised (especially under a democracy), the more severe the theft will become, and the more property norms will be eroded through the maximization of conflict over scarce physical resources. When forced integration (i.e. “non-discrimination”) policies and democracy are added to the mix, the conflict-generation caused by indiscriminate public property access becomes all the more destructive.

If the net victims of taxation cannot lay claim to property purchased and maintained by their own stolen money, and the state then offers indiscriminate access to that property to all uninvited latecomers, social conflict will be maximized, the tragedy of the commons will be exacerbated, and taxpayers will be victimized even further. Is this truly the “principled” libertarian position? (The correct answer is a resounding “no.”)

One could argue that whatever organization the government paid to alter the land (such as a construction company who worked on a road) should become the legitimate owner, but it is likely that the company was granted an illegitimate monopoly on that area prior to homesteading. As the great Murray Rothbard wrote in The Ethics of Liberty: “On the other hand, there are cases where the oil company uses the government of the undeveloped country to grant it, in advance of drilling, a monopoly concession to all the oil in a vast land area, thereby agreeing to the use of force to squeeze out all competing oil producers who might search for and drill oil in that area. In that case… the first oil company is illegitimately using the government to become a land-and-oil monopolist.” The corporations building the roads, libraries, and other public works are given an unfair advantage by the state in that they are given the right to have no competition in homesteading the area; a rival company is not allowed to start building on the virgin land of the proposed road site, even before construction begins. Thus, it would be wrong under libertarian principles to grant the property titles to these firms.

This isn’t what most libertarian restricted immigration advocates argue, so the entire section here is irrelevant to the debate at hand. Again, we see the author erroneously assuming that labor-mixing is the only way to homestead land, which Rothbard himself does not argue in the quoted passage. In fact, the author even suggests that rival companies have a right to build on land reserved for another company’s construction all the way up until the point when construction actually begins. Obviously, state land monopoly grants are illegitimate, but there is no reason why a private company cannot reserve land for future use absent the state. To suggest that reserving land for future use is an inadequate homestead is an untenable position in practice and would inevitably result in massive amounts of conflict being generated over land use, as I explained earlier in the previous discussion on labor mixing.

Given all of the problems listed above, I would propose that public property be opened up to perspective homesteaders in the event of the dissolution of the state. Whoever mixes their labor with the land should be given the private property right to it. While taxpayers have certainly been victimized by the state, such victimization does not entitle them to absolute control of public property.

The author’s conclusion inadvertently introduces yet another absurd concept. How exactly is the state going to be “dissolved”? By convincing a majority of the population to become anarcho-capitalists? That’s highly unlikely since most people are not even interested in political theory, and of the ones that are, many are not likely to be receptive to anarcho-capitalist ideas. Mass education, while upheld as the ideal strategy for undermining the state by people like Larken Rose, is based on the fantastical notion that once a majority of people have been convinced to read Mises and Rothbard (unless, like Larken, you consider them to be statists), learn Austrian economics, and become ideologically committed anarcho-capitalists, they will then be able to simply make the state disappear and establish anarchy throughout the whole country. This would then provide the context for what the author describes here, where public property would suddenly be up-for-grabs and available for homesteading.

But this would not be the case if another route to statelessness were pursued, namely secession. There have already been many articles such as this one arguing the practical merits of secession, so I will not rehash the many arguments here. Suffice it to say, secession easily comports with the tribal nature of humans, while mass education ignores the fact that most are simply not interested in abstract political ideologies, let alone anarcho-capitalism. But if statelessness were achieved through a gradual chain of secession movements, there would not be large amounts of public property suddenly up-for-grabs. Rather, the more stable process of moving the locus of sovereignty closer to individual property owners and taxpayers would have resulted in net tax victims being gradually compensated with increasing degrees of control over their rightfully owned public property. Eventually, the process of political decentralization would lead to the re-establishment of private property norms once it reached the level of individual secession, or more likely, the re-establishment of sovereign covenant communities and neighborhoods. All of this would be achieved without the chaotic land-grabbing race that would take place under instantaneous state dissolution.

Of these two proposed paths to a stateless society, which one is more viable and will do a better job of mitigating and avoiding conflict over scarce physical resources?

Conclusion

The fatal flaw in the “libertarian” open borders position is that it fails to take into account the reality of physical scarcity. Since physical scarcity is the very reason property norms are needed to resolve conflicts, any formulation of property ethics that fails to take physical scarcity into account is bound to result in untenable positions that generate conflict over scarce resources. Any property norms that do this are self-defeating since the consequence of adopting such norms would be antithetical to the very purpose for which property norms are established in the first place. Open borders, being a position that would maximize conflict over public property, is therefore an untenable position that is contradictory to libertarian property ethics – or as Lew Rockwell put it, an assault on private property.