I have been dismayed by libertarians arguing for immigration as a human right. The saying, “No human is illegal” has a warm feeling to it. But the rights claim conflicts with the property rights of others. Here’s my hypothetical. Suppose one of America’s large, privately-owned ranches became an independent country. As part of the United States, the owner clearly possesses the right to exclude others; persons entering without permission would be trespassing. How can gaining sovereignty take this property right away from the owner? People from across the world cannot move to this privately-owned country without permission.
Murray Rothbard made a similar point in a 1994 Journal of Libertarian Studies paper, “Nations by Consent.” Professor Rothbard also sees incompatibility, based on anarcho-capitalism, or abstracting to imagine an entirely private nation. He observes:
. . .on rethinking immigration on the basis of the anarcho-capitalist model, it became clear to me that a totally privatized country would not have “open borders” at all. If every piece of land in a country were owned by the same person, group, or corporation, this would mean that no immigrant could enter there unless invited to enter and allowed to rent, or purchase, property. A totally privatized country would be as “closed” as the particular inhabitants and property owners desire. It seems clear, then, that the regime of open borders that exist de facto in the U.S. really amounts to a compulsory opening by the central state.
Property rights provide the basis for adjudicating rights claims. In existing reasonably free nations the public, through government as its representative, owns and manages many “public” spaces. But these spaces are still owned, and the owners can exclude whomever they choose. People from across the globe cannot have a right to enter without permission.
Some libertarians also describe international trade as a right. Again, inconsistency with property rights suggests otherwise. Goods must be shipped across property owned by someone. Without government, infrastructure, and the land it is on would be owned by private individuals, groups, co-ops, or businesses. The property owners presumably build infrastructure and open it to the public to make money but can place conditions on use. They could conceivably prohibit the shipment of selected goods across their property. Prohibiting shipment of foreign-made goods may seem irrational or capricious. But property owners can use their property in any way they wish. And perhaps rival domestic manufacturers will pay infrastructure owners to block their international competitors. No right violation occurs when property owners refuse passage for delivery. Only the existing public infrastructure creates the appearance that customers can have any goods they wish brought to them.
Claiming immigration or trade as rights affects public discourse and ultimately the prospects of public support for either cause. Rights arguments delegitimate opposition; those with reservations about open borders or free trade are wrong and their complaints can be dismissed. A public discourse recognizing that restricting immigration or trade as moral and legal would have to stress the benefits to others and address their concerns and fears.
Many Americans over the past twenty years have feared immigrants burdening taxpayers. Immigration proponents responded by dutifully reading the very limited eligibility of legal and particularly illegal immigrants for government assistance. But Americans’ fears, I think, concerned the direction of policy change in the country and the dissolution of shared purpose. These concerns plausibly follow from the transformation of America from a land of freedom and opportunity to one of entitlement and victimhood. With this sea change, the potential for politicians, bureaucrats, and judges to extend eligibility becomes real and troubling, and increasingly realized. Americans’ concerns can be dismissed if immigration is a human right.
American and European populism involves the revolt of the public, to use Martin Gurri’s phrase. The revolt is against elitist, paternalistic intellectuals trying to dominate others. This revolt has made Americans very attentive to the tone of public discourse, particularly noting those trying to delegitimate and silence others. Rights talk about immigration and trade places libertarians with authoritarian intellectuals seeking to disfranchise regular Americans.
The Trump revolt against bureaucratic tyranny includes enormous deregulation and reducing the dollars flowing through bureaucracies and represents the greatest movement for freedom since at least the Reagan years. It would be ironic if free market economists and libertarians were excluded from an effort to stave off a dictatorship of elitist intellectuals. The market economy embodies the ultimate rejection of planning and control by elites in favor of planning by everyone. Libertarians should be leading this charge. It would also prove tragic. The revolt of the public may fail without our help, and, if successful, will likely usher in less freedom than if we had a seat at the table.
