Libertarianism and Open Borders

There are some who think of themselves as Minimal Government Libertarians who nonetheless believe in restrictive immigration policy, or, at least, are perfectly happy to vote for politicians committed to such policies. On its face, this is inconsistent. Restrictive immigration is state use of force and coercion to keep people from going where they would go and from entering into labor contracts that both sides would enthusiastically execute. Libertarians are great friends of labor contracts, condemning such government interferences as minimum wage and overtime laws. You can’t have a free market in labor without open borders. So how can any libertarian have anything to do with a restrictive immigration policy?

Here are some possibilities from popular political culture:

Only citizens have rights against state interference?

This is crude, and no one can really believe it.  A non-citizen presenting at a US border crossing cannot be killed, raped, kidnapped, robbed, or punched out by immigration officers. It is a matter of bedrock libertarian principles that fundamental rights arise from human status, not citizenship status. States do not give rise to rights for the libertarian. Instead, rights limit states.

Foreigners can be excluded because they take the jobs of citizens?

This too is a non-starter for the same reasons. The state has no libertarian business keeping employers from hiring whom they want or job seekers from applying where they want.

Citizens have a right to protect their culture against being swamped by outside influence?

This is objectionable even without adding the colorful vocabulary in which it sometimes appears on the internet, e.g. “degrading our white, northern European culture.” The state, for libertarians, is not a culture referee. Culture is left to the private sphere and individual choice.

Foreigners can be excluded in exercise of the state’s protective function?

This time we have a starter. If there is one thing that even the smallest of small state libertarians believes a state can legitimately do, it is to try to limit crime and violence. Sometimes, indeed, it sounds as if this is the only thing a state can legitimately do. (When pushed a little, of course, it comes out that states can and should do some other things, for example, enforce contracts and correct selected torts. An energetic examination of the additional state functions that the libertarian will grant he can’t live without may lead him to conclusions he did not anticipate. That, however, is a topic for another day.)

If there were no probability that any immigrant would ever commit a crime, this rationale for border restriction would not apply. No one, however, wears glasses that rosy. It does not defeat a protective theory of the border if immigrants are less likely to commit crimes than citizens. As long as immigration leads to any increase in crime, the protective justification might kick in. A policy that prevents a single crime (net) is protective; it need not cut crime per thousand inhabitants.

So we have found a candidate libertarian ground for restricting immigration. This, however, is only step one. No evidence will ever be good enough to reduce to absolute zero the probability that you or I will commit a serious crime in the future. Yet the state, in its protective function, cannot legitimately grab us off the street. Any libertarian would be aghast at the idea that all the inhabitants of the highest crime square mile in the country be rounded up for incarceration or banishment, although that would very likely cut crime. Even aliens in our territory within the terms of their visa cannot be so treated without predicate acts on their part.

So there must be something special about aliens at the border. The question is: Is it a special status that can be made to fit with libertarian theory to justify restrictive immigration?

A Property Right to Exclude?

Libertarians love property rights. Indeed, the right to untrammeled control over one’s property, from toothbrushes to industrial complexes, seems to be the most important of human liberties to libertarians, and whatever liberty is in second place engenders far less enthusiasm.

It might seem that we are here in the right neighborhood for a theory of border restriction. An owner of  real property, traditionally, could prohibit anyone she chooses from crossing her threshold (under all but extraordinary circumstances). This remains so when the ownership is joint, and even when the property right is vested in a group. The Exalted Order of Porcupines can exclude any non-Porcupine from the Venerated Den. So is, perhaps, a nation’s citizens such a group, that can exclude, as a matter of a property right aliens from the nation’s territory?

No. The property relation, at least as normally understood, will not support a libertarian theory of restrictive immigration. The nationals of a country own some of its territory in a way reasonably close to the way the members of a fraternal lodge own the lodge. Citizens, it is piously said, own the capitol and national parks. But then there remains quite a bit of privately held real estate. Libertarians insist that the state does not have anything remotely like any property right in privately owned acreage and ought have very restricted say over it. Even publicly owned property, they say, should be as little restricted as possible with respect to private access and use. The Porcupines can require that anyone on their property, members and visitors, wear quilled hats with pointy ears.  Libertarians join the rest of us in thinking that the government couldn’t properly order that for the national territory.

A quasi-property right or sovereign territory right to exclude?

Perhaps, although the libertarian state does not have a full blown property right over its entire territory, it is a corollary of statehood that it has something at least distantly related to a property right. Start with a full blown property right, but then shear off all components of the right remotely similar to the right to require the wearing of hats with pointy ears. Without going into detail as to exactly what else is shorn off and what remains, isn’t it plausible that one of the rights that remains is an absolute right to exclude outsiders insofar (and only insofar) as that lessens crime and violence?

How, as a matter of theory, do we get this special quasi-property right from a libertarian conception of state sovereignty with respect to a particular patch of the earth’s surface? To see whether it is plausible that it can be done I want to hearken back to individual rights in a state of nature. This is the traditional venue for theoretical constructions of a libertarian state.

A state of nature thought experiment.

There are five of us eking out our existence on the highlands above the lake. (It makes no difference whether you imagine us to be living in the year 30,000 BCE or in the 21^st century after a plane crash in this remote region.) Four of us have gotten together and agreed to protect each other from violence or the depredations on our individual property, either by wild animals, by one of ourselves, or by Oscar, who declined to enter into the agreement. 

 

We are a little worried about Oscar. He is getting better and better at fermenting berry juice, and we have observed some ill effects on his behavior. Oscar has not offered violence towards any of us, but we have increasing concerns that he might. It is proposed in our Protective Council of Four that we ban Oscar from the Easy Path down to the lake.  That is where any of us is most likely to encounter him. Ever since we five came to this spot, we have all used the EP. There is another obvious way to the lake, the Hard Trail, but it is steeper and with looser footing. It would be no fun carrying water up it, but it could be done.

With our numbers, we could certainly enforce a ban against Oscar’s using the EP, effectively forcing him onto the HT. Can a libertarian agree to the exercise of this coercion by our sub-minimal state? 

A: I think we can predict with near certainty that sooner or later Oscar is going to get drunk and bump one of us off the EP, or grab one of our full water gourds, or simply haul off and slug one of us.

L: I agree that the probability of some such disagreeable event is high. We can properly try to deter anything of the sort by letting Oscar know that we would punish even a minor transgression. Among other punishments, we could then ban him from the EP. Without some actual wrongful act on Oscar’s part, however, we ought not restrict his liberty.

A: What if Oscar threatens to do injury to one of us on the path, or suggests that he might shorten his trip by helping himself to the water one of us is carrying up?

L: If we take his threat seriously, I think we could demand that he withdraw and renounce it and commit to behaving peaceably. If he won’t satisfy us in this fashion, then I perhaps we could properly ban him from the EP. This, however, would be the very lightest predicate for such a ban. He has rights we cannot infringe by way of preemption.

I suggest that L, here, represents libertarian principle. If that is so, then, the minimal state libertarians have some explaining to do as to why they are not committed supporters of open borders and free labor markets.

Perhaps you will object that the EP does not constitute territory over which our sub-minimal state can properly be said to be sovereign. As such it is not a fair analogue of the territory of a modern state.

 

What is it you would require to establish that a territory is under the sort of state sovereignty claimed by the United State, China, and Tuvalu?  In every case the extent of the national territory, although added to or subtracted from here and there by a genuinely uncoerced agreement, was primarily a matter of the successful use or threat of force. The ability effectively to assert such force is exactly what A, in the above dialogue, can claim for the Council. Moreover, the force would be used for a generally permissible libertarian state purpose – crime prevention.

I conclude that the EP is, for purposes of libertarian political theory, a suitable proxy for the territory of a modern state. So no libertarian who would reject A’s proposal preemptively to bar Oscar from the EP can consistently plead the government’s protective function to exclude immigrants who have never committed a crime and are not attempting or conspiring to do so.

What libertarians call “statist” political theories can come up with all sorts of reasons for regarding the territorial border as having great significance, sometimes nearly a mystical significance. This, in turn, grounds assertions of strong state powers against the liberty of individuals. The theoretical construction of a state by a minimal state libertarian, however, will have very different theorems about the territorial border. So far as I can see they must end up with what their nativist opponents will call an “open border.” 

 

Libertarians are not, of course, committed to a wide open border. The prisoner just escaped from Collins Bay prison in Ontario would not get a libertarian pass at the Thousand Islands crossing into the US. Consistent libertarians must, however, support a very inclusive immigration policy. How many of them do?

Postscript: I have not read it, but it appears that there is a graphic novel, which is to say what we used to call a big comic book, supporting open borders on a libertarian basis, written by Bryan Caplan and Zach Weinersmith. A graphic summary of it is at http://www.smbc-comics.com/comic/open-borders.

For an extended thought experiment comparing "libertarianism" with "left libertarianism" see:
https://lawrencecrocker.blogspot.com/2017/05/choosing-libertarian-island.html
https://lawrencecrocker.blogspot.com/2017/06/libertarian-island-ii-individual-rights.html
https://lawrencecrocker.blogspot.com/2019/02/libertarian-island-iii-coercion-and.html