The Uninvited Caretaker
An Ethical Resolution to the Immigration Controversy
Introduction
It is indisputable that the rise of Donald Trump has prompted a division among libertarians, and a struggle to resolve the differences that arose from various orbits within the movement. No greater issue demonstrates this divide than immigration.
Trump, an ardent opponent of illegal immigration, roused a populist following by pitching a plan to build a wall on the Southern border. His unwavering commitment to this aim eventually led him to sign a $1.4 trillion dollar spending bill, with just one percent directed towards wall construction. National debt, though another crowd-pleasing grievance on the campaign trail, became an afterthought when stacked against the wall.
While libertarians find plenty of unity in opposition to America’s debt, the infighting over immigration itself has grown to a boiling point. Does libertarianism demand unrestricted access across arbitrary lines? If not, what principles are at stake by such a proposition?
Libertarian border restrictionists, or “bordertarians" as the pejorative goes, commonly point to the welfare state and politicians that seem invested in pandering to the immigrant population while simultaneously aggrandizing power over the inhabitant population. The state of California met this stereotype in full force when it managed to qualify illegal immigrants under 18 for Medicaid, and expanded the eligibility age to 25.
Restrictions also question the cultural shift inherent in mass immigration. Hans Hermann-Hoppe adopted the phrase “forced integration,” pointing to a lack of consent from communities who perceive an invasion upon their cultural boundaries.
Open borders advocates dismiss these concerns as fundamentally un-libertarian, if not outright prejudiced. The immigrant, they insist, is a peaceful individual struggling in a war with the sinister nation-state, backed by a hostile native population bent on maintaining a racial and economic privilege.
Some argue that open immigration promises economic growth that deserves a warm welcome. There is substantial merit in support of workers from the third world environments migrating to access first world capital goods, and generating greater output for a wage unheard of in their mother nation for a similar endeavor of production.
Another school of unrestricted immigration - the “collapsitarians” – take note of the potentially negative economic and cultural impacts, yet welcome the crash of a broken system. This is unmistakably reminiscent of Cloward-Piven model, which deliberately champions an overwhelming of the welfare state to trigger political unrest and demand for a radical political shift. In the case of the “collapsitarians,” it amounts to “principled crash," making way for a libertarian takeover.
In an effort to conclude a principled resolution, I turn to the libertarian movement’s most prominent forefathers and contemporaries alike, as they thoughtfully contemplated the immigration issue.
Homesteading and Self-Determination
In standard Lockean theory, private property is established by homesteading, in which man validates the initial claim upon unowned property by virtue of its first use. Upon mixing his labor with the soil, he has established the most valid claim on the given property.
As others claim surrounding territory, a community is formed. Cultural norms are developed. The need arises to prevent conflicts between a growing populace. The principles that bind these social conventions are formally codified, and an aristocratic figure is recognized as suitable to affirm the social order.
At this point, classical liberal theorists inadvertently leave open critical ground to the radical libertarian by assuming the hypothetical delegation to the state, often a minarchist arrangement committed to retain the rights of man’s state of nature.
But this simply does not satisfy us, especially with regard to a community’s right of self-determinism in general, and its borders in particular. Nor should we let our classical liberal forefathers off the hook for failing to settle a fundamental issue.
Were the community’s borders delegated at will to an overarching political authority? If so, what were the terms between the community and the authority in question? Was it faithfully upheld, or was there a breach of contract? In light of many federal impositions upon local communities in our lifetime, it’s difficult to envision any mutually agreeable terms with no such breach committed.
If the territorial claim was imposed by the mere threat of violence, we must regard the takeover as illegitimate. In such an event, the claim of authority was simply a thieving of rightful jurisdiction. The community in question no longer possesses a substantial claim to invite or exclude. That has now been transferred to a far-off political authority that can commit grave harm in pursuit of its own interests.
This is an inevitable consequence of allowing a relic of colonial centralization to persist. Worse yet, the nation-state takeover distances the system from self-governance at a deeper level.
Communities and Cultural Boundaries
Prominent Austro-libertarian economist and political theorist Walter Block has asserted the following:
There is simply nothing incompatible with libertarianism and destroying “cultures and languages,” provided only that the latter is done without the initiation of violence. And this goes not only for Latvia and Estonia, but for the U.S. as well.
The point is, there is no such thing as anyone’s “own country.” This is a notion incompatible with libertarianism. What happened to the doctrine of allowing free competition in all matters? Certainly, this should apply to languages and cultures.
This argument makes reference to Murray Rothbard’s observations in Nations By Consent, in which he reflected upon his evolution with immigration. In that essay, Rothbard cited unrestricted immigration as "an accelerating problem for classical liberals."
Rothbard explains:
This is first, because the welfare state increasingly subsidizes immigrants to enter and receive permanent assistance, and second, because cultural boundaries have become increasingly swamped. I began to rethink my views on immigration when, as the Soviet Union collapsed, it became clear that ethnic Russians had been encouraged to flood into Estonia and Latvia in order to destroy the cultures and languages of these peoples.
Culture is not property, strictly speaking. However, it can be expressed and codified in contract. The private sphere of society consists of a large body of contracts for every resident among the population. This would satisfy the assumption that culture is intertwined with the legal system.
Language is also not strictly a matter of private property, but bears significant status in the interpretation of law. This extends to practically every legal school of thought, as judges may explore the meaning of language employed from the time a law is written to its modern usage.
Both culture and language consist of norms and customs of social recognition. They are the end products of peaceful association, voluntary cooperation, and spontaneous order. As demonstrated here, both extend significantly into the legal system, and it would be foolish to assume otherwise.
Then, does an empire or foreign nation have a moral claim to transform those social landmarks? According to this analysis, the answer is no. Joseph Stalin’s actions are impositions that reflect George Orwell's 1984, in a world where language was actively weaponized by a central authority, and culture was commanded from the top-down to subvert these basic forces of civilization.
One’s “own country” – “his" nation-state – is merely figurative in the context of property rights. To the point where a connection can exist, a theoretical contract – if possessing any merit at all – has clearly been breached. On this basis, a grievance claim by its inhabitants can be asserted. If such a “contract” is illegitimate to begin with, the case for a grievance is even stronger, as no other institution in public life can assume your subjugation by no will of your own.
The case for the sovereignty of communities does not violate Block’s defense of free competition in languages in culture. We can ascertain this argument because a purely free society would have communities on the market that establish the norms, whether by a proprietary covenant or through an organic development.
A predominately Hispanic community can establish Spanish as its language, and observe legal customs within its territory that echo various Latin American traditions if they wish. Likewise, a far-away community with a predominately white population can formally adopt the familiar English language and legal customs at will.
Such market-driven enclaves essentially satisfy the demands of both arguments by Rothbard and Block. In addition, they create peaceful separation where present and dangerous tensions exist.
Outside of this model, it is difficult to satisfy the dispute.
Did Joseph Stalin really refrain from initiating violence against these cultures, when it was a proactive political mission to overrun the end products of homesteading and free association?
Should the US government have permitted the mass immigration of Russian communists, employing them with the right to vote? This question is ridiculous by design to demonstrate an absurdity. That is, the potential for political incest with unrestricted immigration and an alleged right to vote.
Community sovereignty, tied to the principle of self-government, and reclaimed by its rightful owners? Great, you may say. But in practical reality, these are the circumstances we face. And while the implications of community sovereignty may be instructive, the reality is that immigration is in the hands of the federal government.
Point taken – but what we have established is that a foreign individual and a domestic nation-state are not the only units of analysis to consider in this controversy. And with chain migration, family reunification, and large caravans entering the debate, one can hardly maintain an “individual verses collective” dichotomy in good faith.
Mises on Self-Determination
Ludwig von Mises, a Nazi-blacklisted Jew, had no illusions about the need to escape his native land during the reign of Adolf Hitler. Nevertheless, he thoughtfully considered the sentiments of a resistant native population.
In his book Liberalism, he writes:
In the absence of any migration barriers whatsoever, vast hordes of immigrants from the comparatively overpopulated areas of Europe would, it is maintained, inundate Australia and America. They would come in such great numbers that it would no longer be possible to count on their assimilation. If in the past immigrants to America soon adopted the English language and American ways and customs, this was in part due to the fact that they did not come over all at once in such great numbers. The small groups of immigrants who distributed themselves over a wide land quickly integrated themselves into the great body of the American people. The individual immigrant was already half assimilated when the next immigrants landed on American soil.
One of the most important reasons for this rapid national assimilation was the fact that the immigrants from foreign countries did not come in too great numbers. This, it is believed, would now change, and there is real danger that the ascendancy, or more correctly, the exclusive dominion of the Anglo-Saxons in the United States would be destroyed. This is especially to be feared in the case of heavy immigration on the part of the Mongolian peoples of Asia.
Mises did not accept today’s common tenets of nationalism and democracy. But inarguably, he employed a view on each of them that reflected self-governance of a free people that maintained a realistic benchmark to preserve domestic tranquility.
In the event of a massive demographic shift, Mises maintained that nativist fears had a justification.
The present inhabitants of these favored lands fear that some day they could be reduced to a minority in their own country and that they would then have to suffer all the horrors of national persecution to which, for instance, the Germans are today exposed in Czechoslovakia, Italy, and Poland.
It cannot be denied that these fears are justified. Because of the enormous power that today stands at the command of the state, a national minority must expect the worst from a majority of a different nationality. As long as the state is granted the vast powers which it has today and which public opinion considers to be its right, the thought of having to live in a state whose government is in the hands of members of a foreign nationality is positively terrifying. It is frightful to live in a state in which at every turn one is exposed to persecution — masquerading under the guise of justice — by a ruling majority. It is dreadful to be handicapped even as a child in school on account of one's nationality and to be in the wrong before every judicial and administrative authority because one belongs to a national minority.
To Mises, liberty demanded unity if a nation-state was to preserve peace.
[T]he nationality principle includes only the rejection of every overlordship; it demands self-determination, autonomy. Then, however, its content expands; not only freedom but also unity is the watchword. But the desire for national unity, too, is above all thoroughly peaceful… [N]ationalism does not clash with cosmopolitanism, for the unified nation does not want discord with neighboring peoples, but peace and friendship.
Kinsella's Restitution for Taxpayers
There exists an ongoing debate on how to view the concept of public property. As a starting point, libertarians view it as illegitimate. But is it unowned land, or stolen property?
Indeed, there can be no debate that it is maintained by taxation. This constitutes a grievance claim not inherent with a frontier ripe for the first user. The resources upon the given parcel of land have been claimed by an illegitimate party, and largely put to use. Not only was a private property claim systematically forestalled, it was thoroughly violated. Trespassing was systematically legalized by allowing public access. Vandalism was committed by any usage of resources the hypothetical homesteader would have utilized differently.
Because this homesteader remains hypothetical, it is the tax base that collectively holds the most legitimate claim. To be sure, there is plenty of disagreement between them as to how the property and its resources are most suitably directed. A mass of subjective and conflicting preferences constitutes the Tragedy of the Commons.
While Stefan Kinsella concedes the imperfections, he has proposed a persuasive case for taxpayers in the current system.
We can allow that a road, for example, is actually, or legally, owned by the state, while also recognizing that the “real” owners are the taxpayers or previous expropriated owners of the land who are entitled to it… As libertarians, we can view this situation as the state holding property on behalf of the real owners, as a sort of uninvited caretaker.
In an absolute sense, one cannot possess both a “right to travel" and a right to manage private roads with any means of discernment at your disposal. What applies to an airline or a maritime operation would apply to the road in question, as a “right to travel” cannot assert a positive right to a seat on an airplane or a ship.
Kinsella continues:
If the feds adopted a rule that only citizens and certain invited outsiders are permitted to use these resources, this would in effect radically restrict immigration. Even if private property owners were not prohibited from inviting whomever they wish onto their own property, the guest would have a hard time getting there, or leaving, without using, say, the public roads. So merely prohibiting non-citizens from using public property would be one means of establishing de facto immigration restrictions. It need not literally prohibit private property owners from having illegal immigrants on their property. It need only prevent them from using the roads or ports — which it owns.
Hornberger on the Immigration Police State
While Stefan Kinsella makes a compelling theoretical argument that stresses the doctrine of invitation, coupled with a form of restitution for taxpayers, the idea struggles to bear with practical reality.
The obvious question: how would the federal government enforce such a grant of power?
Jacob Hornberger has pointed out the current scenario, in which the principles embodied in the Fourth Amendment and their state-level companion protections are systematically eroded.
Under America’s system of immigration controls, federal officials are authorized to enter onto farms and ranches within 100 miles of the border without a judicially issued search warrant. There are also roving Border Patrol searches, where agents stop cars and search them for arbitrary and capricious reasons, again without a search warrant. There are immigration checkpoints on U.S. highways, where federal agents have the same full authority to search people and their vehicles that they have at the border, even if the travelers have never entered Mexico. Immigration agents board buses and demand to see people’s papers. There are violent raids on American businesses. There is forcible separation of children from parents. There are detention centers with wretched conditions for both adults and children.
Clearly, the federal government is not the best option if we seek to resolve this crisis on any peaceful level that reflects any tradition of human liberty. Where Kinsella presents an entertaining hypothetical with a coveted restitution, Jacob Hornberger brings us back to reality.
Given cornerstone issue status under President Donald Trump, it’s no surprise that the press has covered the US Immigration and Customs Enforcement’s (ICE) efforts to enforce immigration law, and the often appalling conditions that undocumented immigrants are held in. The most generous assessment is that the federal government was completely ill-prepared for a President who was genuinely committed to enforce the law, and thus tied the hands of the bureaucracy with a short supply of space, food, and medical care. A cynic may charge that such conditions are a deliberate but ill-conceived attempt to deter the flow of immigrants. In either case, conditions at the detention centers are alarming and unacceptable. With the authority to hold people in confinement comes the duty to provide humane living conditions.
Time magazine reported the following:
Adults and children have been held for days, weeks, or even months in cramped cells, sometimes with no access to soap, toothpaste, or places to wash their hands or shower. Some reports have emerged of children sleeping on concrete floors; others of adults having to stand for days due to lack of space. A May report from the Department of Homeland Security’s inspector general found 900 people crammed into a space designed to accommodate 125 at most.
The border wall may produce an inadvertently humanitarian outcome, in contrast. Barriers to entry can be circumvented with access to such knowledge, resources, and connections, but the overall flow will be reduced. That essentially means fewer apprehensions, thus fewer border horror stories. Such a humanitarian concern must be equated into a cost-benefit analysis, just as cameras that monitor police work incentivize harm reduction.
Hornberger on Central Planning
“America’s system of immigration controls is based on the concept of central planning,” Jacob Hornberger writes. “Open immigration — or, better yet, open borders, which is encompassed by the principle of free trade — is the only — I repeat, only — solution to America’s decades-long, ongoing, never-ending, perpetual immigration crisis.”
To put his case in perspective, it’s a critique of "comprehensive immigration reform" as proposed by central planners in Washington DC, stacked against open borders as his proposed solution.
Many similar arguments identify a nation-state border as merely an arbitrary line, in which the immigrant has harmed nobody in crossing. But in full scope, that arbitrary line determines the growing tax burden, the accommodation of preexistent infrastructure, and the course of unfunded liabilities, giving rise to uncertainty in the ability of the government to deliver on programs its citizens were forced to pay into. To emphasize, these are the same arbitrary lines that undoubtedly impose a real-world consequence when crossed by an invading army.
A theoretical collection of communities with privatized borders isn’t factored in as an alternative, which offers a false choice. But Hornberger can be forgiven for presenting an otherwise compelling argument. He correctly identifies and tackles the folly of central planning, which leads us back to our community framework.
Channels of Invitation
A culturally possessive covenant community is unlikely to possess the resources or the incentive to echo the federal government’s behavior in its effort to exclude an unwanted trespasser. Any reasonable proprietor would hire a policing firm with a reputation for peaceful conflict resolution, as injuries to inhabitants and destruction of private property are commercially disastrous.
Neighboring proprietors would possess a strong incentive to prevent and redress harm against their residents, should he cross borders. Nevertheless, a mere trespasser can be peacefully evicted, and find invitation at a commercial outlet that finds no threat in his arrival.
While there are certain immigration restrictions inherent in libertarian theory, a market-driven society also presents channels of invitation. The supply of private roads adjacent to a shopping district operates on a different set of market signals than the residential supply, as such a commercial venue is open to the public. A commercial proprietor would provide arrangements for parking, and could negotiate a direct fee to the road provider as a public service to attract shoppers. Hotels, motels, and inns serve social outsiders under similar incentives. So long as a hotel finds no reason to suspect harm – and every reason to expect payment – an immigrant can get a temporary stay.
Hornberger’s claim that open borders are “encompassed by the principle of free trade” may sound convincing enough, but Hans-Hermann Hoppe draws a crucial distinction between them.
“The phenomena of trade and immigration are different in a fundamental respect, and the meaning of ‘free’ and ‘restricted’ in conjunction with both terms is categorically different,” Hoppe asserts. “People can move and migrate; goods and services, of themselves, cannot... Hence, in advocating free trade and restricted immigration, one follows the same principle: requiring an invitation for people as for goods and services.”
However, with respect to the movement of people, the same government will have to do more in order to fulfill its protective function than merely permit events to take their own course, because people, unlike products, possess a will and can migrate. Accordingly, population movements, unlike product shipments, are not per se mutually beneficial events because they are not always — necessarily and invariably — the result of an agreement between a specific receiver and sender.
Closing the Case
Today, more so than ever, a potential immigrant can find both an employer and an affordable apartment on the internet to secure an invitation. The provision of an inhabitant’s contact information can be used to verify the arrangement, and confirm him in the clear. The nation-state, insofar as it must possess the authority as the “uninvited caretaker” of immigration, can simply function as a storehouse for such legitimate arrangements. Various means can be used to certify an officiated arrangement – a mailed certificate, a bar-code, a text message – and so on.
A decentralized, invitation-based immigration system could potentially offer similar benefits as open borders – without the drawbacks.
Arrangements made across national borders would be protected between workers and employers, tenants and landlords, migrants and sponsors. The establishment of consent would be greatly enhanced between immigrants and communities they wish to inhabit. A prohibition in Arizona could be an invitation in California. And it could suit both societies just fine.
A repeal of minimum wage laws would attract immigrants with a strong work ethic, opening opportunities that aren’t generally available in their domestic economy. At once, this reinforces the freedom of contract, serves a humanitarian aim, and enriches the developed world.
The folly of central planning is thus averted. America’s unskilled workers would be incentivized to honor their contractual obligations with their employers, or be replaced by those who would.
An invited caretaker can make that call.
Originally written in January 2020.
External Resources:
Nations by Consent by Murray Rothbard
Immigration Roundtable by Jeff Deist (Featuring Hans Hermann-Hoppe, Walter Block, Murray Rothbard, and Ludwig von Mises)