Public Roads and the Right to Immiserate Would-Be Immigrants

By On February 20, 2012 · 21 Comments · In Democracy, Rights Theory, Social Justice

While writing the section on free immigration for my forthcoming book, Libertarianism: What Everyone Needs to Know, I posted this as my Facebook status: “If you claim to care about the poor and support social justice, but you are not in favor of open immigration, I do not have to and do not take you seriously.”

A Facebook friend offered an interesting challenge to the libertarian position. In this post, I’ll give a brief overview of the libertarian view, and then explain and respond to that challenge.

Immigration restrictions cause poverty, misery, suffering, and death. Michael Huemer explains this with a thought experiment: Imagine starving Marvin heads to the market in search of food. Imagine Marvin has little to trade. Yet there are people in the market willing to trade food for whatever Marvin has. Imagine that in the absence of interference, Marvin will successfully get to the market, make the trade, and eat. However, now imagine that you forcibly prevent Marvin from getting to the market. You post guards to keep him out. Suppose this works. The guards continually capture Marvin and turn him away. As a result, Marvin starves and dies. In this situation, Huemer says, you have done something morally comparable to killing Marvin. His blood is on your hands.

We could alter this thought experiment. Imagine Marvin is not starving, but is instead desperately poor. Imagine that if Marvin makes it to the market, he will make various trades and instantly become ten to twenty times richer. Imagine Marvin will be able to send large amounts of money home and feed his entire extended family back in his poor village. However, again, imagine you pay guards to turn Marvin away.  In this case, you do something morally equivalent to forcing Marvin to stay poor. It was not your fault he and his family were poor to begin with, but it is your fault that they remain poor.

 

In these thought experiments, you do not simply fail to help Marvin. Instead, you actively hurt Marvin by using violence to prevent him from making a trade with a willing partner. That is, your behavior is not morally equivalent to walking past a beggar without sparing some change. It is more as though you saw someone offering a beggar $5 to wash a car window, but you scare the beggar and the car owner off with your gun. Your behavior, on its face, is vile and despicable.

Here’s the challenge from my Facebook friend: Marvin has to use public roads to get to the market. Thus, Marvin cannot simply assert a right to get to the market. To get to the market, he must use public property. Just as I have the right to turn away homeless people from my property, the government has the right to turn away immigrants who are trying to get to the market to sell their labor. Immigrants invade public property.

I think this challenge is unsuccessful for a number of reasons. I will not go through all the reasons here. I’ll just discuss one.

Let’s think about what it takes for private property to be legitimate. Imagine that you own a small plot of land, say, 1/3 of an acre in the residential neighborhood of Lake Barcroft, Virginia. Other plots of land surround yours. Your land is connected to a road. (It doesn’t matter, for our purposes, whether it’s a public or private road). Now, suppose that for some reason, in one day, I purchase all the land—including the road—that surrounds your house. I immediately post “No Trespassing” signs and say I will shoot trespassers on the spot. I put a fence around all my property, and thus put you in a cage.

You are now trapped in your land. Let’s add that if you don’t trespass over my land, you will starve and die. (Or, if you wish, imagine that you have a small garden, and will just barely survive.)

Almost everyone who reflects on this scenario, regardless of ideology, concludes that my actions are illegitimate. While I am permitted to purchase the land surrounding yours, I cannot then use my property rights to trap you in your own property. There are a number of arguments one could use to get to this conclusion, but I won’t offer them here. I think the conclusion is intuitive enough.

Most people conclude that in a scenario like this, you are entitled to some sort of easement. That is, I am obligated to permit you to cross some portion my property at will so that you may get to the market, to work, etc., and not be imprisoned in your own land.

As private individuals, we have rights to acquire property in land. We are not obligated to let anyone use our land at any time just because he or she needs it. But, we are obligated to allow people right of way over our land if our ownership would otherwise trap them.

Now, back to the point about public roads. This same reasoning applies. Just as a private individual must grant easements to others rather than trap them, so governments must grant easements to others rather than trap them. A government cannot put a public road around the market and say, “Ha, ha! Now you can only come to the market with our permission! And we don’t grant you permission, so you must starve and die!”

 

 

 
  • Javier Hidalgo

    Here is a suggestion. We need to distinguish between different ways of understanding what a “right” amounts to. You can have a right to perform some action if it is morally permissible for you to perform this action. But you can also have a right to perform some action if it is wrong for someone to interfere with your exercise of this right. These two kinds of rights don’t always go together.

    How does this relate to your example? It relates as follows: you can have a right to your property in the sense that it is wrong for someone to take it away from you or damage it, but it can also be morally wrong to refuse to let people use your property. Property rights are, to an extent, rights to do wrong.

    Let’s return to your example. It might be wrong for you to cross my property without my permission. But that doesn’t necessarily mean that it is morally permissible for me to forbid you from doing so. Suppose that states have property rights over their public roads or territories more generally (I deny this, btw). Nothing necessarily follows about the permissibility of exclusion. It could still be wrong for the state to forbid people from using these roads, especially if allowing people to use public roads would impose few costs on other people.

  • http://www.facebook.com/profile.php?id=1244040243 Alex Silverman

    For those who understand the importance of property-rights and are having a hard time reconciling the social obligation with the private right, Coase might help: the immigrant can (and does) pay taxes.

  • MARK_D_FRIEDMAN

    Jason,
    Depending on exactly what you mean by “open borders” (voting and welfare rights? the complete absence of governmental regulation?), it is possible that you will not be taking Huemer seriously. I have read his excellent essay, and I believe he acknowledges that the case for voting and welfare rights is weaker than for free movement. Also, in sec. 7 he acknowledges that the possible results of open borders might be so negative that it may be desirable to move only gradually towards open borders.

    I believe that there are two important arguments that Huemer (and you?) have failed to adequately consider. First, a country that does not minimally respect the rule of law violates the fundamental rights of its citizens/subjects. There are many (perhaps a majority) of nations that fail this test. In many places (for example)if you hold minority religious views (or atheism) you will be killed and women are routinely subject to barbaric genital mutilation, honor killings, and otherwise severely abused. I believe that members of socities that minimally respect the rule of law do not have to sacrifice their rights on the alter of open immigration. You do not have to be paranoid or nativist to fear that free immigration could have this effect, and thus to authorize the state to regulate immigration to this extent.

    Second, it is plausible to me that open borders would kill the “golden goose” of relatively advanced, liberal societies that produce the goods that make the Marvins of the world desire to come here. So, in the long run the Marvins of the world are made worse off by completely open borders.

    • http://profiles.google.com/entelechy77 Kurt Horner

      How exactly does having an open immigration policy undermine the rule of law?

      • MARK_D_FRIEDMAN

        Kurt,
        First, I said “could” not “would for certain.”  Second, per Hayek, the rule of law is ultimately sustained by certain widely-held societal attitudes, e.g. tolerance, the desire to be governed by laws, not men, etc. Just to take an extreme example to make the point, if tomorrow 100 million Pakistanis moved here, do you really think there would be no change in the political culture of this nation?

        • Joshua Katz

          If tomorrow 100 million Pakistanis decided to move here, do you really think you could stop them?

          • http://pulse.yahoo.com/_MDIV45JOQY347TWLT6YWI2OZU4 Jeff Crowe

            Me, personally? No. Doable with voluntary collective action? Sure.

          • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

            And guns. Lots and lots of guns. :-P

  • Ethan Pooley (furball4)

    The roads argument is a red herring and I hope it won’t distract people, because public/private roads are their own can of worms for libertarians. It is a red herring because immigrants don’t absolutely need to use the roads to reach the market. If that was the only legal barrier, they’d have gotten around it long ago. By seeing border properties purchased by friendly nationals, for example, and making their way to market on private property with permission of the owners. The taxes response and many others work as well.

    There are still a lot of issues not addressed in this article, such as the political enfranchisement of immigrants. That’s an interesting one to me, because while I seriously dislike the thought of have un-enfranchised adult inhabitants, I also find us trending too far toward pure democracy. The purer the democracy, the greater the political danger of a tyranny of the 51% majority and therefore the understandable concern about the content of the 51%. There is a fear of bringing people into our nation who don’t understand our country and might tend to wish it were like another. Can this fear be cast as a legitimate political concern and immigration restrictions as a legitimate political response? While I wouldn’t stand in the way of very open immigration (or at least transit/labor/trade) policies, I would feel a lot better doing so if the U.S. were still a constitutional republic (in practice).

    I think this conversation would be more constructive if you would lay out the immigration system that you see being justifiable.

  • Damien S.

    “Almost everyone who reflects on this scenario, regardless of ideology, concludes that my actions are illegitimate… Most people conclude that in a scenario like this, you are entitled to some sort of easement.”

    My experience with libertarians would not lead me to expect most of them to fall in your ‘most people’.  After all, if the property titles were legitimate, and legitimately bought up, the trappee has no right to infringe on such legitimate title! *cough*

    The roads argument is overly specific.  The more fundamental analogy would be between a private landowner keeping people off his land and not being obliged to donate to maximize utility or even keep people from starving, and the nation as collective owner of its land, likewise un-obliged.  Or, conversely, if the nation is obliged, then so is the landowner.  Pure libertarians deny the nation, thus assert a right to immigration but no right to individual help, but people who don’t share the libertarian axiom, i.e. almost everyone, won’t be convinced.

  • Jay_Z

    A problem is that all borders need to be open both ways and there needs to be no advantage to a nation that closes them.  Pancho Villa makes a raid into Texas, raping and robbing, then retreats into Mexico.  Mexico won’t extradite.  Cuba sends a bunch of criminals and disabled people on a one-way boat ride to Miami.  They won’t take in any of the same.

    Unless you have a worldwide police force that ensures all areas have open borders, why wouldn’t a jurisdiction take advantage of the strategy of closed borders if it’s adventageous?

  • Jessica Flanigan

    I think this is totally right, that property rights aren’t absolute and the scope of our property rights will to some extent be limited by other people’s entitlements, so ::even if:: the government has property rights over public roads, it could be wrong for it to use those roads to exclude immigrants.

    But the government doesn’t have property rights over public roads! A state is not like a house. For one thing, I’m really skeptical that states have the moral authority to set all sorts of limits on liberty, including freedom of association, movement, economic liberties, including the liberties of strangers. That is, I’m skeptical that states have rights to exclude outsiders for the same reasons that I reject the unjustified coercion of citizens.

    For another, there are a lot of people in that market who would like the state to let in their potential customers (or family members, or strangers, whatever) and why should their claim lose out? Even if a state were like a house, which it isn’t, there are some people in that house that want to have friends over, who made the anti-immigrant faction the boss? (h/t Javier on these points, his research on immigration has convinced me that justice requires open borders for all these reasons, though I’m sure he could say it better!)

    • Damien S.

      Does a homeowner’s association have the right to regulate what you do with your property within the HOA, and to regulate access to common property?  Are those rules, and the decision-making process that make them, binding on children and grandchildren who inherit property in the HOA?

      • Joshua Katz

        I’d say that such associations do, although states are not really like HOA.  Also, if they start to behave unreasonably, they shouldn’t be surprised when my children revolt – if I’ve brought them up well.

        • Damien S.

          Revolt?  Aggressive seizure of legitimate property because of perceived grievances over economic “coercion”?  Sounds rather socialist.

  • 3cantuna

    “The state is that great fiction by which everyone seeks to live at the expense of everyone else.”  Bastiat

    Resorting to a private property order at least gets rid of the worst political monster, the state, and its artificial distorting of labor allocation. The power of the state to choose favorites and enforce it creates incredible enmity and demographic disequilibrium; costs/benefits are disconnected from responsibility. Citizen v. non-citizen is a class conflict necessarily resulting from the state. A private order colored by market conciousness cannot, structurally speaking, externalize responsibility for immigration/emigration. A private order will have an emigration problem if it cannot compete with neighboring market societies. 

    Public roads exemplify the perversity of statism.  They are not market based so are economically unaccountable. Private roads are much more strictly regulated by competition. Plus, when it comes time for easements, one can resort to answering ‘who was there first’ in working out problems. In contrast, what is decided when the state owns everything and there is no empirically individuated property?

  • http://www.psychopolitik.com longbongsilver

    The challenge actually manages to throw the status of roads into question: if they are “public”, then they’re for everybody and no one has standing to block use. 

    To say the government can stop people from using those roads is effectively to say the state owns them, not the public.

    • Damien S.

      Or it is to say that the ‘public’ that owns them is all citizens of the nation, rather than all human beings, and that they are for the free use of all citizens.

      • http://www.psychopolitik.com longbongsilver

        It’s not all citizens of the nation making that decision though.  We’re talking about a few people claiming power allegedly on their behalf who in the end can completely contradict whatever consensus the citizens may come to.

        Sure, there can be local ordinances at least arguable as coming directly from the ones who live near and regularly use those streets, but that generally isn’t where immigration law comes from.

  • Dale Miller

    I guess that I’m friend who sparked the post. However, I’m not sure that my original comment was sufficiently clear, because my intention wasn’t to make the argument that immigrants invade public property. My point, or at least the point that I intended to make, is that it seems hard to produce “micro analogies” to the immigration case that aren’t question begging and don’t cause relevant features of the real question at issue to be lost. 
    When Jason initially introduced the “Marvin” example, in response to an earlier point of mine, I responded by saying it seemed question begging in assuming that the road and the market were places that Marvin had a right to be, when the whole issue in question is whether immigrants have a right to be in this country. (I admitted that a micro analogy that I had somewhat flippantly made in a response to Jason’t initial post was question begging in the same way.)  

    It seems to me that even libertarians ought to be able to accept that micro analogies are problematic here. From a Nozickian standpoint, let’s say, the minimal state is obligated to provide protection services to everyone within a given territory. There seems to be a real issue, then, about whether it is obligated to allow new people to enter the territory from the outside, people whom it would then also be forced to protect. It doesn’t seem out of the question to suggest that its current membership might be entitled to some kind of say about this. And I don’t see any micro analogy that could capture all of the relevant features of this situation. I have to say that Jason’s response here, while very interesting, only fuels my sense that trying to talk about immigration in terms of micro analogies leaves out something important. The situation of person who has complete freedom of movement within Mexico, which covers  over 75,000 sq miles and borders both the Pacific Ocean and the Gulf of Mexico, seems to be quite different in relevant ways from that of someone who is trapped on a small patch of land completely surrounded by other patches. The example he offers raises plenty of interesting questions of its own, though. If I have to give you an easement, can I charge you for it? Can I at least, say, demand that you pay to reseed or pave the path that you wear through my grass? To what standard must I maintain this easement? If you step in a hole and break your ankle while crossing my land, am I liable? Fun issues to think about.And by the way, nothing that I said to Jason on Facebook or that I’ve said here should be construed as a comment on what immigration policy the U.S. should have. I won’t get into that except to say that I certainly believe we should have more immigration than we do.

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