TGIF: Immigration in an Nth-Best World

We live in an nth-best society. It's neither fully libertarian (though libertarians disagree over exactly what that would mean) nor totalitarian like the Soviet Union, Nazi Germany, Fascist Italy, Maoist China, or North Korea. It's somewhere in between, closer to libertarian than many other places but not close enough.

One challenge for libertarians is knowing which proposals to favor and which to oppose in an nth-best society. Merely reciting the nonaggression obligation is not enough if our goal is to persuade many people that the freedom philosophy is both right and practical.

A mixed economy, the system combining markets with heavy doses of government interference, produces problems that libertarians need to address to be relevant. Many problems concern so-called public property, government-controlled land and buildings, many of which are presumptively open to all U.S. residents. Roads, parks, museums, and courthouses are examples. Libertarians would privatize most or all of it. (Roderick Long notes that nongovernmental publicly owned property can exist and has existed.) However, simply proclaiming the pure libertarian vision based on private property fails to address today's acute problems involving public property, such as the obstruction and defilement of sidewalks and parks by disorderly homeless, jobless, and troubled individuals who prevent civil self-supporting taxpayers from using those facilities as intended.

It is equally unreasonable to address those problems by giving politicians and bureaucrats carte blanche to regulate "the people's" property.

If this sounds relevant to the immigration issue, go and buy yourself a cigar. There's a view floating around social media and elsewhere that free immigration, or open borders, is not a libertarian position because "we the people," the true owners of government-controlled property, have the same right as any private owner to set rules for entry and use. Therefore, non-owners properly could and perhaps should be excluded. This rule-setting presumably would occur through the democratic process, that is, voting.

Right off the bat, that seems odd. The democratic process is majority takes all  -- the bloc of minority "owners" would lose out. If 50 percent minus one welcomes new arrivals to deal with and 50 percent plus one does not, the smaller group loses out simply because it is smaller. If a member of the minority persists, he is punished.

This would seem like Rousseauian "general will" libertarianism, except that's a contradiction in terms.

This position is presented as the grown-up libertarian position in today's world. I disagree.

Bear in mind that this proposal is intended to answer naive, immature, likely new social-media libertarians who believe that in today's mixed economy, the government must not set any rules whatsoever for public property. I'm sure such libertarians exist, but libertarians are not logically or morally obligated to favor the no-rules position. On the other hand, a better version of libertarian theory also does not entail restrictions on people's nonaggressive freedom of movement.

Those who think otherwise prove far too much. If "we" through the democratic process may shut immigrants out by keeping them off "our" public property, why can't we make other rules? How about a rule that says if you hold certain political or social views, you can't drive on the roads or use the courts and libraries? Why the distinction between the native-born and the foreign-born? A country is not a country club.

Making rules for today's public property requires nuance and reasonableness. There is a difference between excluding drunken, unwashed, screaming people without clothing from the DMV and excluding civil people without government permission papers from the roads and sidewalks. Forbidding homeless people from defecating, urinating, and discarding drug paraphernalia in public differs from forbidding Americans to hire, sell to, rent to, or live with, and otherwise associate with any peaceful people they choose regardless of where they were born.

The first instances disrupt taxpayers' peaceful use of public property; the second do not. Is the nondisruption principle a distinctively libertarian standard? Not specifically, but so what? We're in an nth-best society, remember. Culture, convention, and context help determine exactly what constitutes disruption, but the spirit of individual liberty never disappears. We can expect hard cases, but that doesn't make the principle worthless.

Is the principle arbitrary? No. In a partially free society, public property is presumptively open to the public: if someone makes it impossible for others to use it as intended, that person can properly be excluded. (Not by any means, of course.)

Could the nondisruption principle be used to justify any government restriction, such as closed borders? No. The case for any given rule should not rest on hypotheticals or highly unlikely events not intrinsic to a situation. That's why a border wall is different from a stop sign. There is no necessary connection between immigrants freely coming here to look for jobs, sellers, buyers, houses, apartments, friends, lovers, spouses, etc. and the disruption of public property. We can easily imagine the orderly movement of people over the border if residency and work were legal and entrepreneurial Americans were free to create businesses that match newcomers with opportunities. If a specific disruption occurs, law enforcement should be directed at actual disrupters, not at whole classes of people just because they might be disruptive. Americans might be disruptive too.

What about the tax burden, which is a different sort of potential problem from acute disruption? For a full discussion, see Bryan Caplan's graphic nonfiction work, Open Borders: The Science and Ethics of Immigration. Caplan is a libertarian, but more importantly here, a solid social scientist who knows the immigration data as well as anyone. (The Cato Institute also has examined the data closely. For example, here.)

The story revealed by that data is not what most people imagine. Caplan writes: "Free immigration with a U.S.-style welfare state is not a recipe for fiscal disaster. Even under open orders, the burdensome immigrant would be the exception, not the rule.... Most immigrants pull their own weight -- and then some. A few don't [just as with the native-born]. But that's a flimsy reason to ditch the principle of free immigration." (Nor would we ditch the principle of free reproduction because some Americans will produce future net tax-consumers.)

Libertarians would better use their time working to shrink and repeal welfare-state programs than trying to save them from the stresses and strains they're bound to encounter. Despite hard cases in the world as we find it, the presumption should favor liberty for all, even newcomers. How can that not be the libertarian position?

Open borders are moral and desirable because prohibiting free movement necessarily aggresses against nonaggressors, including Americans; condemns the most wretched people on earth to poverty and tyranny; and keeps us all from getting richer. Strictly speaking, the right at stake is not the right to immigrate. Rather, it's the right not to be subjected to initiatory force. The right to immigrate, as Roderick Long might put it, is just one of many specific applications of that one right.

TGIF: Anti-Woke Isn't Necessarily Pro-Liberty

I had a reminder this week that those who oppose fashionable postmodernist-style attacks on reason and objectivity, such as "critical" race and gender theories, are not necessarily consistent friends of liberty and the free society.

That reminder came in a recent video commentary by Dave Rubin on a year-old speech by Homeland Security Secretary Alejandro N. Mayorkas before the U.S. Conference of Mayors. What upset Rubin so much that he had to play the video clip several times was this statement from Mayorkas: "Unlawful presence in the United States will alone not be a basis for an immigration enforcement action...." Mayorkas said more (hence my ellipsis), but that's all that Rubin drew attention to. (I'll cover the rest in a bit.)

Here's what Rubin had to say in reaction:

How insane is that?.... We are literally saying, "If you are here illegally, but you don't do anything bad, we just ain't gonna do anything about it." That's not how a country is run. Dare I quote that orange guy, who said, "Without borders you don't have a country"? Well, that's pretty much where we're at at this point.

So what's wrong here? Quite a bit, actually, so it's tough to know where to start. It tells me a lot that Rubin's cognitive system -- the part that chooses words and phrases -- isn't set up to avoid suggesting that anyone could or should run our country. Think about that phrase. To quote Rubin, "How insane is that?" We shouldn't want anyone or any group to even try to run the country (no matter how that is defined) because even though the effort would fail, the attempt would inflict a lot of pain.

Why doesn't Rubin know that a free society (which he says he wants) runs itself -- it's a bottom-up, emergent, undesigned order -- when the politicians and bureaucrats leave it alone, and it does so better than anything the politicians and bureaucrats have come up with? Dave, read your Thomas Paine, whom I quoted recently and will do so again:

Great part of that order which reigns among mankind is not the effect of government. It has its origin in the principles of society and the natural constitution of man. It existed prior to government, and would exist if the formality of government was abolished. The mutual dependence and reciprocal interest which man has upon man, and all the parts of civilised community upon each other, create that great chain of connection which holds it together. The landholder, the farmer, the manufacturer, the merchant, the tradesman, and every occupation, prospers by the aid which each receives from the other, and from the whole. Common interest regulates their concerns, and forms their law; and the laws which common usage ordains, have a greater influence than the laws of government. In fine, society performs for itself almost everything which is ascribed to government.

As to Trump's dictum that you can't have a country without borders, Rubin might want to give that another thought because maybe that definition of country is unnecessarily narrow. On the other hand, if we accept that notion of country, maybe we'd opt for something else after closer consideration.

Rubin and the orange guy beg this question: What kind of society do or should we want? They assume that virtually everyone (or everyone who matters) already agrees on the answer even though that is what needs to be discussed explicitly before we decide. (That's how I still understand the phrase beg the question.)

As the political philosopher Chandran Kukathas points out, "border control" is not really about controlling borders. It's not even mainly about controlling immigrants. Rather it's about controlling citizens. You can't restrict immigration without restricting the peaceful activities of those identified as citizens. That identification process is based on contingent political decisions made by fallible, vain, and even corrupt rulers; it is not a metaphysical process conducted by high priests. (See Kukathas's book Immigration and Freedom.)

Kukathas writes:

[T]he threat to freedom comes not from immigration but from immigration control…. Immigration control is not merely about restricting border-crossing but as much, if not more, about constraining what outsiders might do once they have crossed the border in a society. But it is difficult to control outsiders without also controlling insiders, since insiders are all too ready and willing to hire, teach, rent to, trade with, marry, and generally associate with outsiders. Moreover, insiders and outsiders are not readily distinguishable unless there are instruments of control in place to identify one or the other. [Emphasis added.]

Yikes!

Some citizens may say they are willing to accept those restrictions because the imagined benefits of immigrant control outweigh the costs. Kukathas suggests two responses. First, are those who express such willingness really aware of the costs in terms of lost liberty, prosperity, social opportunities, and cultural vitality?

And second, what about the citizens who think the costs swamp any benefits? Why should their welfare preferences be overridden by people who are more change-averse? Someone who doesn't want to associate with immigrants is free not to do so. Why, then, isn't the freedom to associate extended to those who would welcome immigrants?

Kukathas writes that if we're serious about freedom, we shouldn't think that society “is some kind of unit comprised largely of people who belong together in some way, and whose belonging entitles them to determine who may or may not become a part of that unit, or indeed even enter the geographic space or territory it occupies.” In other words, freedom is incompatible with the ancient notion of society that we still labor under in many ways. (See Benjamin Constant's classic 1819 essay, "The Liberty of the Ancients Compared with that of the Moderns.")

Needless to say, if someone (immigrant or not) commits aggression against another person or his property, the system of governance (whether a monopoly state or a stateless competitive arrangement) ought to respond appropriately, observing the long-accepted safeguards, such as the presumption of innocence and burden of proof.

Now let's turn to Mayorkas's remarks. As noted, Rubin only quotes a fragment, and in isolation it's not bad. Rubin's rewording highlights its virtue: "If you are here illegally, but you don't do anything bad, we just ain't gonna do anything about it." What's wrong with that?

Mayorkas did not go nearly far enough, however. As I explain here, since U.S. laws do not apply outside of U.S. territory, a person standing on Mexican soil cannot violate a U.S. prohibition against unauthorized border crossings. By the time he is on U.S. soil and subject to U.S. law, the crossing has already occurred. This means that people like Rubin who can't stand the thought of living among people whose first act with respect to the United States was to break the law can rest easy.

If they are concerned about those who overstay their visas, we might ask on what grounds bureaucrats (as opposed to property owners) have the authority to set the terms of visits to America. That implies that the government or the people as a whole own the country, but that's a question that we haven't debated yet. It's more question-begging.

Unfortunately, Mayorkas didn't leave the matter there. He watered down the statement with conditions that are too vague to make a freedom-lover comfortable. That should be unsurprising since the Biden administration has not kept its promise to undo the outrageous Trump approach to immigration.

Mayorkas completed his sentence this way: "we will allocate our efforts, we will allocate our resources on those individuals who present a current public safety threat, a threat to national security, or a threat to our border security, and that is a very important principle."

He's pretty much taken away with the right-hand everything he had given with the left.

At any rate, as Rubin and others make clear, the anti-woke left and right have a long way to go.

Borderlands: What's Happening to America?

The U.S. government regards a large part of the country as close enough to a border or coast to justify treating individuals — citizens or not — as though they have no rights whatsoever. People have been beaten and had their personal belongings seized — without warrant or charge — just because they resented being treated like criminals. This should alarm anyone who thinks America is the “land of the free.”

 Read the full op-ed.

You Can’t Be for Freedom and Border Control

Conservatives who lie awake nights worrying about “illegal immigration” reveal something unflattering about themselves. Isn’t it odd for people who claim to favor individual liberty and limited government to at the same time fret that people “cross our border” without government permission? Why would anyone need the government’s permission to cross an arbitrary political boundary?  What happened to natural rights? And why would self-proclaimed champions of the free market demand harsh penalties for employers who dare to hire people who haven’t first gotten permission from the government to live and work here? Employment is peaceful exchange. Where does the government get the moral authority to regulate exchange?

If one favors freedom, one favors freedom of movement. Does that mean I favor amnesty? No, it doesn’t. I oppose amnesty on two grounds.

First, amnesty presupposes wrongdoing and “illegal immigrants” have done nothing wrong; they are merely people without government papers—big deal. There is no duty to obey a “law” that conflicts with natural law.

Second, I do not think government officials should be forgiven for the injustice committed against people without government papers. Thus I oppose amnesty for those officials.

Greatest Commercial Ever?

I can't resist sharing this classic Coca Cola commercial. It brings a tear to my eye. Watch the men's faces closely. The spot says so much -- far more than Coke intended, I'm sure -- without a word spoken.



HT: Roderick Long