In defense of Open Borders

A reply to Chilly Willers

I’ve been very pleased by the reception to my previous post, Immigration, Privatization, and Ownership in the Statist Commonwealth. I would like to take the time to address a critique by a twitter friend of mine, Chilly Willers, who wrote a very thoughtful critique of some of my claims in Against Open Borders. I think the critiques are thoughtful but ultimately incorrect and I hope to show why. Nonetheless, I appreciate the challenge.

Chilly writes:

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We begin with Hoppe’s argument that the net taxpayers of a country should be considered the legitimate owners of public property. Ace dissents citing misapplied title transfer theory:

I believe the fatal flaw in professor Hoppe’s claim stems from a misapplication of title transfer theory concerning property (specifically, stolen property), and as such, I claim he deduces an incorrect conclusion from false premises.

Followed by a simple example to illustrate the point and an argument that laborers and material suppliers should be considered the owners:

Alice, a wealthy businesswoman, is robbed of $30,000 by Bob. Bob, who is now the unjust possessor of the money, buys a used car from Carl. Now Bob is in possession of the car, and Carl is in possession of the $30,000. Because Bob purchased the car with Alice’s stolen money, does Alice own the car?

No, absolutely not.

Bob had no right to use or transfer Alice’s $30,000 in exchange for the car, and Carl only exchanged the car on the condition that he would be the title owner of the $30,000, and because Carl did not become the legitimate owner, the condition of the exchange was not fulfilled, which makes the transaction fraudulent. So it follows that Alice would be owed the $30,000 and Carl would still own the car, as no title was transferred in reality, the “transaction” was all a sleight of hand.

When the state expropriates taxpayer money to build a park or any public infrastructure, the money is not legitimately owned by the state, and thus, the state has no right to transfer it to another party as compensation to the laborers to build the park in question. So when the state uses taxes to “purchase” materials and labor from some 3rd party, the 3rd party is being defrauded as they only exchanged with the state on the condition that they would legitimately own the title to the tax money, and as we demonstrated above, this would mean that any economic arrangement the state makes is fraudulent, and thus the respective property titles never actually transfer from their legitimate owners. This has profound implications, as the laborers, and material suppliers would be the owners of ALL public infrastructure in the U.S. and not the taxpayers.

While I don’t object to the logic of this argument, it stops short of exploring the path to restitution. It is certainly true that Alice does not own the car immediately following its purchase, but it would likely be awarded to her as restitution after suing Bob if Carl cannot be reached for a refund. Likewise, if there were to be restitution from laborers and material suppliers to net taxpayers, the most likely scenario would be a transfer of most public property. Therefore, when Ace says that Hoppe has failed to make the case for public property ownership by net taxpayers, it would be more accurate to say that Ace disagrees with Hoppe’s assumptions about how restitution would play out.

Restitution is addressed in a response to objections. Ace:

Objection 3. If It is my money, why am I not owed restitution in the form of the state’s property? That doesn’t sound libertarian at all!

Response: Because the state does not own the property, the state is a predator, not a producer. It has nothing it hasn’t stolen from you or someone else in its possession. As I showed above, the state did not legitimately acquire title from you or the material/labor supplier in the creation of any public property, and thus by libertarian norms, the public spaces would be owned by the material/labor supplier, whereas you would be entitled to the money itself as restitution.

We are led to believe monetary compensation is the most likely outcome, however, it seems quite unlikely that laborers and material suppliers would have the ability or desire to pay back such vast sums.

This topic is revisited in the last section where you can see Ace’s position and my rebuttal.

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I think there are a few problems with Chilly’s analysis here.

1. If X owed Y the sum of $500, X would be obligated to pay that amount back to Y, but it wouldn’t inherently justify Y entering X’s house to take items he perceived to be worth $500. So in the case of the taxpayers, they would have a right to forcefully reclaim their money from the business, and if the business did not have all the money, they could garnish the business’ income until it was paid off.

2. Many state policies harm people in other countries all across the world, so if public property can be granted by restitution for state aggression, then it seems that people in other parts of the world, (the middle east, south America, etc,) would also have a right to that public property, thereby undercutting the purpose of the restricted immigration argument in the first place.

3. We can’t claim to know how restitution would play out until we reach that point. We can only work off of what we know from following the tenets of title transfer theory, which is clear that the title remains with the original owner if a fraudulent purchase has occurred. The material and labor suppliers may offer up their property to the taxpayers to settle, or they might not, but we do not yet know.

4. Hoppe tries to bridge libertarian property theory to the position of closed borders, and as discussed in my post, I don’t think he succeeds, so it is not merely a disagreement of how the restitution will play out in practice.

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Free Trade and Restricted Immigration

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In ‘The Case for Free Trade and Restricted Immigration’, Hoppe argues that although free trade is often associated with open immigration and protectionism with restricted immigration, this need not be the case and to the contrary free trade and restricted immigration are mutually reinforcing:

Appearances to the contrary notwithstanding, I will argue that this thesis and its implicit claim are fundamentally mistaken. In particular, I will demonstrate that free trade and restricted immigration are not only perfectly consistent but even mutually reinforcing policies. That is, it is not the advocates of free trade and restricted immigration who are wrong, but rather the proponents of free trade and free immigration. In thus taking the “intellectual guilt” out of the free-trade-and-restricted-immigration position and putting it where it actually belongs, I hope to promote a change in the present state of public opinion and facilitate substantial political realignment.

Let’s look at Ace’s rebuttal and the question of whether treating public resources as the private property of net taxpayers and arguing against open borders undermines the case for free trade. Ace:

Under Dr. Hoppe’s framework here, it would seem that the immigrant can be restricted from the public property as it is, in reality, the private property of the taxpayers. The problem here is that once we assume this is the case, then Hoppe’s provided justification for free trade in the current context becomes dubious. Hoppe claims that free trade is justified where immigration is not because the transaction is consensual between the parties - but wait a moment - if we must treat the roads and interstates as private property, then the taxpayers of the country would have to consensually authorize the transportation of the goods in question being transported for the trade to be truly consensual by all parties involved, and if they do not, (and they currently do not) then it seems the transportation of goods itself without permission in public areas would count as trespass. It doesn’t seem at all apparent why the taxpayers would feel the need to restrict only immigrants on public property. The taxpayers would have just as much of a right to stop the transportation of any goods they desired from traveling on their road to get from A to B, in the same way, you or I would have the right to restrict a person from entering our property if they were in possession of a gun, drugs, alcohol, or even if they were thought to be potentially carrying a virus or any other innumerable variables we could conceive.

I believe this criticism is misguided because it is not Hoppe’s intention to provide ultimate justifications for either free trade or restricted immigration, rather, it is merely to argue that contrary to popular opinion, they are mutually reinforcing. In addition, the invite-only model for immigration does not mean getting a majority on your side to increase or decrease immigration, rather it means that immigrants should be invited and sponsored by someone residing in a given territory.

As for the concern about restrictions extending to trade and conduct, this is a possible state of affairs under any scenario and part of the rationale for privatization, secession, and decentralization. This is already addressed in the same article by Hoppe:

Clearly, in this kind of society, there is no such thing as freedom of immigration, or an immigrant’s right of way. What does exist is the freedom of independent private property owners to admit or exclude others from their own property in accordance with their own restricted or unrestricted property titles. Admission to some territories might be easy, while to others it might be nearly impossible. Moreover, admission to one party’s property does not imply the “freedom to move around,” unless other property owners have agreed to such movements. There will be as much immigration or non-immigration, inclusivity or exclusivity, desegregation or segregation, non-discrimination or discrimination as individual owners or owners associations desire.

And by Rothbard in ‘Nations by Consent’:

Under total privatization, many local conflicts and "externality" problems—not merely the immigration problem—would be neatly settled. With every locale and neighborhood owned by private firms, corporations, or contractual communities, true diversity would reign, in accordance with the preferences of each community. Some neighborhoods would be ethnically or economically diverse, while others would be ethnically or economically homogeneous. Some localities would permit pornography or prostitution or drugs or abortions, others would prohibit any or all of them. The prohibitions would not be state imposed, but would simply be requirements for residence or use of some person's or community's land area. While statists who have the itch to impose their values on everyone else would be disappointed, every group or interest would at least have the satisfaction of living in neighborhoods of people who share its values and preferences. While neighborhood ownership would not provide Utopia or a panacea for all conflict, it would at least provide a "second-best" solution that most people might be willing to live with.

Let us now consider the case of undeveloped land held by the federal government. Ace contends that even if a right to exclude exists for developed public property, there is no justification for exclusion from undeveloped federal public lands, some of which lies directly on the border. Ace:

Another problem I have yet to discuss is one I feel many proponents of Dr. Hoppe’s argument fail to consider. Let’s again assume, for the sake of argument, that Hoppe is correct that the net taxpayers are indeed the legitimate owners of the public property in the US. This would still not justify the exclusion of immigrants from crossing most of the border territory as I will show.

This would render most state border patrol on the southern border to be aggressive even if we assume the net taxpayers own homesteaded public property.

I agree that no justification exists for excluding immigrants from undeveloped land, however, this is not an immigration question at present because it not just aspiring immigrants but everyone who is excluded from this land. If and when this land is released anyone should have the ability to settle it. In addition, we know it is not the intention of immigrants to settle this land, but continue inland, so this discussion merely delays the problem.

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The point in my critique of Hoppe here was to show that Hoppe’s current advocacy for immigration restriction would entail the increased restriction of trade from how it currently manifests in America, as an American buying a product from China could not do so unless the public property owners consented to the transfer of that item from China all the way through to the buyer.

If the immigrant entering public land is unjustified, even if a business owner hires them for a job, then trade would also be unjustified, as the taxpayers by default would need to consent to each and every good that gets transported on their property.

Even if one sponsors an immigrant, it doesn’t seem apparent why this would seemingly justify the immigrant then being allowed to cross if the rest of the taxpayers disagree. If I invite someone over to my house, it doesn’t seem justified for the guest to sponsor someone else to enter my property even if they cover the cost for them. I still retain the right to exclude anyone for any reason from my property, even if they are being sponsored by a person who is justified in being there.

In the case of undeveloped land, it absolutely factors into the debate over immigration, as the open borders position from the libertarian viewpoint is that people have a right to cross the state’s border, (which does not imply they have a right to cross on private land.)

As much of the borderlands are undeveloped by private actors, it stands to reason that it is unowned, which would imply that U.S. border enforcement on the southern border is unjustified, as it is keeping immigrants out of undeveloped land.

I strongly reject the claim that we can know what the intention of immigrants is, even if we can assume. We have no way of knowing that immigrants would not settle this land. Either way, the border enforcement on the southern border is unjustified as long as it continues to keep immigrants from entering the undeveloped areas.

I agree that the state holding this undeveloped land hostage is not just aggressing against the would-be immigrants, but also every person who may desire to use this land. Despite this, this doesn’t imply that it’s not also an issue that pertains to immigration, as much of the undeveloped land is connected to the border.

Chilly continues:

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How immigration affects the welfare system is an empirical question whose answer varies by country, time period, and immigrant. Each new analysis of the relevant data may strengthen or weaken the case for increased immigration. In addition, there are numerous other considerations apart from welfare one may wish to include in their cost-benefit analysis. Ultimately, a principled position should be based on property rights.

As Ace points out, it is not permissible to initiate aggression based on the reasoning that you’re simply defending yourself against further aggression by the tax authorities. Ace:

Until we can remove this socialization, would healthy people in this society have a right to forcibly stop people from engaging in unhealthy behavior? Would a healthy person have the right to forcibly stop a person from consuming alcohol, drugs, or fast food? Would it be justified to force fast-food establishments to serve only healthy food, and if they did not, force them out of business? Would it be justified to force people to exercise?

To tie it back, this should show that the existence of a state coercing the populace does not give the populace a right to direct their force at people who are not aggressing. Even if this would lessen the burden the populace faces.

While I think this analogy is a useful exercise, it falls short because we have assumed the very thing we want to find out - whether or not excluding immigrants from public property should be considered aggression. We already know that regulating diet and exercise is considered aggression.

A subsequent section considers crime, but I won’t be addressing it because my argument would be identical. 

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My hypothetical here in itself does not assume that it is aggression, it asks a question. The purpose is to demonstrate that if one uses the existence of the welfare state to justify restricting immigration, we can apply the form of that argument to many other arguments that share the structure.

One can view immigration through a cost/benefit analysis, or a utilitarian lens, but that was not the purpose of my article, I was specifically viewing every argument through the lens of thin libertarian property theory.

I think it’s important that I restate that my arguments opposing the welfare argument are not the same reasoning I use to oppose the net taxpayer argument.

Chilly continues:

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Now for voting patterns and the implications for migration. Ace argues that taken to its logical conclusion, restrictions motivated by political concerns could make it quite difficult to move around within the United States:

If it is permissible to use force to stop immigrants from coming into the united states because they may vote for politicians that will increase the size of the state, then what principled reason stops us from applying this principle domestically? After all, a democrat migrating from California to Texas is just as much of a net increase in the local democratic voting bloc in Texas as the immigrant from Mexico would be to the United States nationally. If it would be justified to forcefully stop people from migrating from California to Texas, then why stop there? What about restricting with force people from Roma Texas from entering Perryton Texas until we can end the tyranny of democracy? The end result of this would be a travel lockdown within the united states where no one of X political persuasion could enter the jurisdiction of Y or X/Y jurisdictions for the same reason the libertarian wishes to restrict immigration. This would mean even domestically, people could not travel from region to region to trade goods or offer up their labor to others outside of the political jurisdiction they were born into. There is no non-arbitrary line we can draw here to mitigate this conclusion.

Similar to welfare and crime, political concerns on their own are not enough to decide migration questions and immaterial to the question of whether immigration restrictions constitute aggression. I agree that the above scenario may be disconcerting, but it has been addressed already in the section on free trade and restricted immigration. Here I return to the same passage from Hoppe:

Clearly, in this kind of society, there is no such thing as freedom of immigration, or an immigrant’s right of way. What does exist is the freedom of independent private property owners to admit or exclude others from their own property in accordance with their own restricted or unrestricted property titles. Admission to some territories might be easy, while to others it might be nearly impossible. Moreover, admission to one party’s property does not imply the “freedom to move around,” unless other property owners have agreed to such movements. There will be as much immigration or non-immigration, inclusivity or exclusivity, desegregation or segregation, non-discrimination or discrimination as individual owners or owners associations desire.

Although likely to meet resistance, even today states and localities could implement policies aimed at limiting the political influence of newcomers.

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As before, my hypothetical alone is not decisive, but I do think it logically commits the libertarian to accept other propositions that rest on similar underlying assumptions. If the libertarian would view forceful restriction of childbirth to couples of X political persuasion for the fear that the child could grow up and vote for state programs as aggression, then I’d argue the libertarian is logically bound to accept restricting immigration on the same reasoning to be aggression.

I would again disagree with the conclusion that one could be justly locked in their locality or property with no right to exit. No one has a right to be a member of a polity, but one does have a right to not be imprisoned. This offers a wrong and right answer to this problem of immigration from a libertarian perspective. The act of entering a particular polity is not aggression, it is only aggression IF one participates in aggressive action through the polity.

Chilly continues:

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Next we look at Rothbard’s recommendations for property management while it remains in the public sphere and Ace’s rebuttal:

While I certainly agree with Rothbard that the state’s control of these resources generates negative externalities for many, I do not think Rothbard’s argument here holds the weight he wishes. The assertion that it should be run like it was under the control of a private owner doesn’t tell us anything. There is no platonic ideal of what a private owner should do on the grounds of their property, and even if there was, it certainly could not be deduced from the libertarian axiom that Rothbard vigorously supported throughout his life. What one private owner would want to do on their property may be completely contrary to what another may wish to do on their respective property. The libertarian merely asserts that one has an exclusive claim to their property, they do not assert that there is a correct way for them to use their property vis-à-vis libertarianism.

One struggles to understand the thesis of this criticism because Rothbard never asserts that the libertarian axiom tells us how private property ought to be managed. Here Rothbard is exploring alternatives and I would have liked to see an alternative to Rothbard’s proposal included in Ace’s reply.

Of course every property owner is different, but we know enough from economics and experience to observe some features common to private owners and how they contrast with public administration. Anyone can distinguish efficient from inefficient, orderly from disorderly, safe from hazardous, etc. In fact, Hoppe has written extensively about the differences between private and public government.

Even assuming we have no idea how any given private resource would be managed, this same criticism would apply equally well to a resource which is to be considered as “unowned”.

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The purpose of my criticism was to show that Rothbard’s claim that these public places should be run as if they were private in order to enforce certain norms that we regularly see on private property does not tell us as anything in regard to WHAT norms should be implemented vis-à-vis the property.

A private owner could allow everyone on their property at any time for any reason, and thus the state could claim they are acting as a private owner right now.

The ultimate point is the state doing this is an infringement on the actual owner of the property. Imagine a scenario where the state steals your house through eminent domain and turns it into a public space. This is obviously a rights violation without question, but would it be different if the state treated it as a private establishment? Well no, not really. The state would still be using the stolen property, even if they were doing so in a more efficient way, and in doing so, they would still be acting unjustly.

Chilly concludes:

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Before signing off, we return to public property and Ace’s argument that public property should ultimately go to its consistent users:

I made the case earlier in this post that the true owners of the state’s publicly controlled property are the laborers/material suppliers that were defrauded by the state’s purchase of those materials and solicitations of labor with the use of stolen money. I would like to expand this claim and consider other possibilities.

Let’s imagine a state-controlled park. While I still hold that the person, group, or firm that supplied the materials and labor owns the park, I do not think this property title is eternally retained outside of contextual events.

To come to own something is to incorporate a currently unincorporated rivalrous resource of the world into your ongoing projects toward an end. If a person neglects their property for an extended amount of time and shows no indication of future use of the property, then one can make a case that the resource has become unincorporated and therefore abandoned.

If a resource has been abandoned, by Libertarian-Lockean norms, the resource is now legitimately open for homestead as it was prior to the original incorporation.

I would argue that while the park was originally owned, the owners have not shown any sign of retaining their claim. Thus, for most cases of “Public Property” in the U.S., I would claim the actual owners are the consistent users of the property in general, as they have homesteaded the now abandoned property. This means a public school is owned by the faculty and parents (by proxy of their children), a public library is owned by the faculty and perhaps its consistent users, and of course the same for the public park, etc.

Ultimately, this means the libertarian must intellectually defend the right of the property owners of these spaces to determine how they are used, and not the taxpayers at large merely because they are taxpayers.

In my view, all of this taken together leaves only one conclusion in regards to the correct libertarian position of state immigration enforcement: All state border enforcement is unjustified on libertarian grounds and if libertarians wish to be consistent in their framework, they should all support the abolition of all state border enforcement.

Assuming we accept that laborers and material suppliers are the rightful owners of public property, most infrastructure requires frequent maintenance and management so I don’t think the neglect/abandonment perspective makes sense here. On the other hand, if we view consistent users as the rightful owners, they will overlap a great deal with taxpayers (especially for locally funded projects) so the distinction doesn’t add much value.

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Yes, my position was not to prescribe who owns what between the material and labor suppliers and the consistent users, but only to show that these were the two scenarios of who could own any particular “public property”.

The important distinction is that the taxpayers do not own the property vis-à-vis being a taxpayer, they must first homestead it like any other person would have to if it was unowned/abandoned.

I do appreciate the engagement with my argument, but I don’t feel persuaded by the critiques inherently. I am happy to answer any questions people may have in the future, and I’d be happy to read any future critiques of my arguments.

Thank you Chilly for taking the time. You can follow him on twitter at @chillywillers

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Thanks for reading everyone.