Settling the Libertarian Immigration Debate, by Kent Van Cleave

Special to TLE

It's a shame to have to take sides in the disagreement between Steve Kubby and Karen De Coster over the correct libertarian position on immigration, but the debate has been generating more heat than light.

Both Kubby and De Coster swear allegiance to the libertarian non-aggression principle. Both agree that one's freedom of movement doesn't include the right to trespass on private property. Both are aware that the government welfare state and its abrogation of our freedoms of association and contract create artificial distortions in the relations between citizen property owners and immigrants. So where's the beef?

Sorry, but I have to lay blame at De Coster's doorstep (which, given her normal insight and accuracy, is surprising). Not only does her argument falter due to a fatal presupposition, but she allows herself to stoop to the ad hominem (and, as far as I can tell, unwarranted) implication that Kubby is not a libertarian, but merely a libertine -- the standard canard by which conservatives try to dismiss libertarians en masse.

For his part, Kubby does a bit of name-calling himself, referring to De Coster and Pat Buchanan as "xenophobes" -- unfortunately invited by the fact that De Coster never acknowledges the possiblity that American property owners might voluntarily associate with immigrants if given the choice. He then offers a correct but somewhat inadequate rejoinder -- grazing the source of their disagreement without disposing of it decisively:

Only under the extraordinary circumstance of there being no property owners willing to rent to immigrants would libertarian guru Murray Rothbard agree with Buchanan or De Coster, because only then would there be no one "on whose property ... someone else ha[s] the right to trample."

What Kubby has spotted in De Coster's article is the presumption that free immigration entails trespass. In her words,

Mr. Kubby does not -- as he says -- stand for clear-cut property rights. He claims to be a supporter of this basic libertarian principle, but never once explains how the alleged right to immigrate can possibly exist in a setting where true property rights exist.

De Coster presumes that immigrants will necessarily intrude on the property rights of individuals, and this is simply not the case -- for several reasons.

First, as Kubby notes, we can't presume that property owners will not welcome the presence of immigrants on their land. To be sure, under the ordinary circumstances found near the Mexican border, property owners very likely consider immigrant traffic across their land to be trespass. But why are the immigrants trekking across the inhospitable desert and thereby committing this kind of trespass? One reason alone: government interferes with their right of free movement. Otherwise, these immigrants would arrive sensibly by highway, by air, or by other ordinary private or commercial conveyance. Only because these avenues are blocked by anti-immigration policy do they resort to cross-country trespass.

Do we trespass every time we enter a grocery store without a personal invitation? When we approach a private toll road booth, are we trespassing until the moment we are issued an entry ticket? Hardly. The natural and automatic presumption is that property used in business is open to anyone willing to purchase (or even just investigate) the products or services offered therein. Therefore, even if all property in America were privately owned, on what grounds can one presume that owners using their property for public transportation, housing, etc., will reject approaching customers just because they lack some government papers?

But, De Coster might object, there is no way immigrants can enter the U.S. without trespassing on American soil. Private landowners and common carriers are prohibited from providing transit into the country for unapproved immigrants, and public roads are owned by the government, which specifically treats unapproved immigration as trespass. Indeed, one thrust of her argument is that property owners are prevented by the state from protecting themselves against the intrusions of immigrants.

But this distorts the notion of 'trespass,' for it substitutes the force of law for the voluntary consent of property owners -- who might well welcome the chance to augment their ranching income by providing safe and convenient immigrant transit at a price. It also presumes that government can properly deny immigrants the use of public (non-private) thoroughfares crossing the border.

De Coster correctly notes that the government wrongly "owns" property that should, by rights, be in private hands. But the fact of the matter is that right now, right here, not all property is privately owned. And the notion of trespass doesn't properly apply to property with no legitimate owner.

Consider just one of the border states into which much "illegal" immigration traffic arrives, Arizona. Try as you will, you won't be able to scrape up actual flesh-and-blood property owners to account for more than about 13 percent (!) of the land in Arizona. You can wander for days without stumbling across private land. So, for the sake of argument, let's imagine that "illegal" immigrants traverse only "public" lands. What libertarian will claim trespass when the only "victim" is a government lacking the right to own the land in the first place?

Now, let's imaginarily erase the anti-immigration laws. Immigrants use "public" thoroughfares, don't trespass on private land, and all is fine. All that remains is for libertarians to get all that "public" land into private hands -- an entirely separate issue.

The immigration debate simply makes no sense as a private property issue. The only problem we have is government policy -- policies that invite immigrants to seek handouts rather than work, deny Americans the right to deal in transportation services for unapproved immigrants, prevent would-be immigrants from traveling on public thoroughfares (creating the strong temptation to trespass on private property instead), and encourage the establishment of immigrant conclaves and voting blocs to Balkanize and exploit our statist society.

How did a professed libertarian like Karen De Coster come to be mistaken on this issue? I think it most likely comes from having given up on restoring certain kinds of freedom in America. She provides good reasons to suspect this. Much of her article is devoted to complaining about the violence done to Americans by the government for the purpose of helping immigrants. Somehow, though, she loses sight of the fact that immigrants play a merely accessory role (and many play no such role at all), while the government carries out all the criminal activity. So why blame the immigrants?

I think a good, charitable explanation is that for some reason De Coster and others are seduced by the notion that anti-immigration laws are genuinely subject to legislative change, and must be defended in order to avoid a worse assault on property rights than currently exists. Why? Because they view our welfare state laws as permanent and unchangeable aspects of American life, against which legislative reform is impossible! On this view, to restore the right of free movement for immigrants automatically threatens the property rights of citizens, for the government will immediately increase theft from Americans in order to provide goodies to and buy votes from the newcomers. Therefore, the anti-immigration laws must be supported. To restore the rights that languish under the welfare state is never considered a real possibility.

Kubby's genuinely libertarian position, that the solution is freedom across the board -- freedom from taxation and unconstitutional "entitlement" programs as well as freedom of movement for all -- simply doesn't compute when the welfare state looms as large and immovable as the Rocky Mountains in one's mind.

Consider the contradiction inherent in the dream of protecting private property rights through restricted immigration while tolerating the underlying wholesale violation of private property rights that is welfare statism! Ultimately, it seems a bit ridiculous to imagine that we actually have viable property rights (as opposed to privileges granted by the state) as long as welfare state cryptosocialism is the reality in America. Sacrificing the rights of immigrants does nothing to regain our own; it merely acknowledges our obesiance to the Gods of Socialism.

Freedom is, and always has been, the libertarian solution. De Coster's position is a pragmatic, conservative one, probably based on the belief that freedom from the welfare state is an impossible goal. The only cure for such creeping conservatism is a concentrated dose of undiluted commitment to liberty, taken with a drink of either optimism or determination.

I realize optimism may be harder to come by these days ... but even lacking faith in success for the struggle for freedom, libertarians are still obliged to fight on, through sheer dogged determination.

Fortunately, I think, the situation isn't that grim. Libertarian activism can be effective and even fun, thanks to certain realities about the psychology of our opponents. Remember, this whole mess is the result of do-goodism that "just growed." These opponents delude themselves that their gutter is really moral high ground. And these delusions are so feeble and easy to strip away that libertarians must carefully avoid misguided sympathy for the discomfort naturally results. Think "tough love."

Deep down, liberals don't believe their policies are based on raw aggression -- yet that's so manifestly the case that libertarians need only keep rubbing their noses in the fact to reduce them to quivering blobs of guilt. Deep down, conservatives don't believe their policies are based on immorality -- yet that's so manifestly the case that libertarians need only keep rubbing their noses in the fact to reduce them to groveling supplicants for forgiveness.

Why hasn't this approach been actively pursued by the Libertarian Party? Because the focus has been on recruiting Libertarians by leaving them their delusions and glossing over the harms they do, on the (probably correct) theory that people won't join an organization that criticizes their behavior. This approach produces at best weak loyalties lacking any passionate commitment to principle.

The proper approach is to manufacture libertarians (with no particular concern for whether they enroll in the LP) by shaming them into forswearing statism as the pure evil it is. This approach produces converts with contrition in their hearts and fire in their bellies. It is these born-again libertarians, freshly mindful of their sins and mortified over their crimes, who will drive the only peaceful libertarian revolution that is possible for America.

By day, Kent Van Cleave is a philosopher studying and teaching at Indiana University, Bloomington. By night, he's the radical libertarian founder of VoteBuddy.com and the still rather new satire site, Welcome to Homeland Security.

T
H
E

L
I
B
E
R
T
A
R
I
A
N

E
N
T
E
R
P
R
I
S
E