Sunday, April 18, 2010

For Libertarians, on the Borders

The long-accepted libertarian position on immigration has been to allow peaceful people to cross political borders freely and openly, which implies to most people an open borders policy. Some libertarians have taken that idea to even mean that the borders should be either abolished entirely, or at least the barriers on those borders such as fences be eliminated.

That position is at least partially incorrect, because such a view ignores the property rights of those people on the border who merely own the property but are not transiting the border. Consideration of those rights complicates the issue, and it must be addressed within the issue.

Note also that the discussion here presumes a few things. First, it presumes that land can and in fact is owned by persons legally and legitimately—the premise of “nobody owns land” is rejected, and that argument is outside the scope of this discussion. Second, it presumes the government is either the owner of public property or its proxy controller, as determined by the people through delegated power and republican means, and as such has the power to determine the privilege of whom may or may not make use of the public property—again, the argument of whether such ownership or proxy is legal or legitimate is outside the scope of this discussion. The reality of now states that those presumptions are in play and accurate, and they are treated as such here. Third, an argument for a closed border, Berlin-style, is not entertained here, because it isn’t libertarian to begin with. Fourth, “government” used here means the federal government.

In transiting a political border, one must either do so by traversing public property, private property, or some combination thereof. The term “public property” is referred to herein the common vernacular, that as being public use property owned by government, such as a road, building, sidewalk, etc. Equivalently, “private property” is also referred to in the common vernacular, that as being property owned by private individuals, or groups of individuals, including businesses, but not the government.

When a person transits a political border, one of four combinations must occur:

1. They move from public property on one side to public property on the other side.
2. They move from public property on one side to private property on the other side.
3. They move from private property on one side to public property on the other side.
4. They move from private property on one side to private property on the other side.

In simple terms, for a person to transit a political border and be considered peaceable, where it involves moving between properties, there must first be permission obtained from the property owner to be present on a property at first, and then to transit onto a property. The absence of such consent constitutes a violation of the property rights of the property owners who did not give such consent and is considered trespass, and as such being considered peaceable cannot be resumed—in fact, the presumption must be the opposite, that of hostility. In the case of such a trespass, the property owner is justified in defending his property from intrusion, even to the point of lethal self-defense. This principle has been applied under the law for both private property and public property, and in fact is the underlying basis of most immigration laws. In a state of war, the principle is used to justify repelling invasions. (Yet for some reasons, it is not considered justified when the intrusion is by government, but that’s a different discussion.)

This is where the broad libertarian argument fails: While it is correct to state that peaceable persons should be allowed to cross borders freely, those persons cease to be peaceable once they violate the rights of others. This is rarely emphasized in the argument, and in fact is commonly ignored, when it should not be. Commonly, critics of the argument will state that by crossing the border illegally, those persons automatically are not peaceable. They technically are correct, and the broad argument has no answer for it, which results in the common point of view that libertarians are wrong on immigration.

The counteraction for that point of view lies in a more nuanced understanding of the position and the ability to explain it as has been done above.

So what, then, is the correct libertarian immigration argument? In the broad sense, it could be stated simply:

“Good fences make good neighbors.”

Public border entry points where peaceable, law-abiding persons may transit freely (and safely), combined with a proper respect and safeguarding of property rights along said border is the only possible way for a border policy to accommodate the libertarian argument of peaceable persons transiting freely while simultaneously not undermining its own core libertarianism by disregarding property rights. That is essentially the current implementation of border security operations, albeit with large room for improvement. It is also consistent with the principle of the property owner giving consent to transit onto their property as applied to public property by the public property owner (or its proxy), the government.

Yet one question remains unanswered: Can a private property owner consent to persons transiting across the border onto their private property? If a private property is actually contiguous with the border, the libertarian position is that they certainly may do so, but lacking such consent beyond that private property limits the transient’s options, and the practicality of doing such. The private property owner may not substitute their consent for that of other property owners, either—including public property. In reality, the government claims easements or public property strips along the border for their purposes of border enforcement, eliminating the entire question as moot, because that strip is public property and therefore under government control along with the border barrier.

In conclusion, the proper libertarian position on immigration and borders is neither one of pure open borders, nor one of pure closed borders, but one of limited openings to allow peaceful people to transit freely while still respecting the property rights of others. Since the first (and only) duty of government is to secure the rights of the people from all violations, the government has a duty to provide for private property protection from trespass from border transients in the same way it has a duty to do so within domestic boundaries. To fulfill that duty, the government is delegated the power to operate those limited openings on public property.