Property Rights, Liberty, and Immigration
by Glenn Jacobs
Libertarian philosophy is based on the concept of self-ownership. Human beings own themselves. When we rightfully acquire property, either by making first claim to that property (homesteading) or through voluntary transfer with another person or persons, that property becomes part of our lives, and thus we lay claim to ownership of that property as we would our own bodies.
One of the problems that libertarians encounter when discussing various issues is determining ownership, or, in many cases, articulating the nuances of applying property rights to the issue. These problems are compounded when government is thrown into the equation since the same rules about property and ownership that apply to private individuals do not apply to coercive government. The hot-button issue of immigration is a great example, illustrating the complexities involved in applying property rights to an issue.
Ownership means that one not only possess something, but one also controls the thing. In other words, if you truly own something, you must be free to use the thing as you wish so long as doing so does not violate the property of others. You must also be free to transfer the thing to another person so long as the transaction is voluntary and consensual. When it comes to land, property rights, i.e. control over that land, include controlling who enters into the boundaries of the land.
When dealing with the topic of immigration, that is, the movement of individuals across political designations, this is where things get confusing. The State claims not only to be able to control who crosses the land that it owns, but also to control who enters land owned by private individuals. It also claims the authority to prohibit certain individuals from living within its borders, even if these individuals acquired their land rightfully (using the criteria above) by homesteading or through voluntary exchange. Those of us who believe that private property is the basis of a free society must ask: how was this authority engendered?
If we continue along this line of thinking, the logical conclusion must be that the State owned all the land within its borders a priori since it is the government which sets the conditions for how that land may be used, and to whom it may be transferred in the future. The State continues to retain a high degree of control since the government has the ultimate authority to make the rules for all property, even property now in private hands.*
To the libertarian, or anyone who believes in the sanctity of property rights, these conclusions are quite troubling. When it comes to land ownership in America, property rights are not at all secure; they are not really rights at all, but government granted privileges.
While our system of property rights is already imperfect, the current immigration policy leads to even greater infringements on these rights. For example, if one owns property on or near the border, the government may claim the authority to build a fence or a wall on one’s property, and government agents may come and go as they please without the property owner’s permission.
These problems remain even if we move away from the border. For example, if the government suspects that I am employing undocumented workers, it claims the authority to raid my business – to enter my property without my permission – with armed agents.
If one truly owns one’s property, how is it that the government can control who is allowed on this property in opposition to the wishes of the property owner? In other words, why should my friend from Mexico beg for permission to enter the country in order to have dinner with me? Shouldn’t free people be able to associate or not associate with whomever they wish so long as those interactions are voluntary, consensual, and do not harm a third party?
The same is true of economic activities. So long as commercial activities are voluntary, consensual, and do not encroach upon other individuals or their property, what is the justification for the government prohibiting these activities or associations?
In the contemporary world of immigration politics, property rights and the freedom of association are trumped by the omnipotent State. Is the State some sort of god before whom we must plead to recognize us as "official" persons? After all, that is the crux of the immigration question – must the individuals coming to America have the sanction of the State? As the State continues to lose legitimacy in the eyes of so many in the liberty movement, one wonders why many of these same folks still demand that individuals who peacefully come to this country seek the State’s approval above all else. After all, it is the State that determines who is "legal" and "illegal."
Now one may argue that despite all this, illegal immigration is a crime and as such must be punished. The question is, who is the victim of this crime? So long as the immigrant has not harmed another individual or violated another individual’s property, who has suffered injury? Just like so many other "crimes," this activity is a crime against the State, and should fall into the category of victimless crime. While such activity may violate State edicts, it can hardly be considered a crime in the sense that no individual was harmed by the activity.
When dealing with laws restricting the movement of human beings, we should keep in mind Thomas Paine’s prophetic observation: "he that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself." Demanding that the government "do something" about illegal immigration will result in bigger, more intrusive government and less freedom for all of us.
Already efforts ostensibly aimed at illegal immigration undermine the ability of Americans to travel freely in our own country. In the Southwest, the Border Patrol has built permanent checkpoints well inside the United States, located along major travel routes like I-35. All travelers must exit the freeway and be processed by ICE agents, including questioning and possible searches. Since federal agents operating in this geographic area are not constrained by the probable cause standard of the Fourth Amendment, there is no protection against arbitrary searches and seizures even for American citizens. This fact has prompted the ACLU to declare the areas within 100 miles of America’s borders as "Constitution Free Zones."
In addition, in some of the airports in this area including Laredo, TX and Tucson, AZ, travelers are subject not only to the indignities of TSA searches but also questioning by ICE agents about their citizenship.
To believe that a government program targeting a specific group of people will not affect everyone in general is naïve and contrary to history. If nothing else, the government faces the problem of determining if an individual belongs to the target group. No one, not even a government agent, has the magical ability to determine one’s nationality simply by looking at him. For example, during the 1950s an aunt of mine, a third generation American, was denied service at a restaurant in New Mexico because she was dark complected and, despite her French and German ancestry, it was assumed that she was a Mexican. If someone has dark skin and Hispanic features, are we automatically to assume that he is an illegal alien? Likewise, what about light-skinned folks who may be here illegally? Will they simply fall through the cracks?
For these reasons, the government will demand to know the legal status of everyone. In other words, it will not be up to the government to prove that one is here illegally. It will be up to you to prove otherwise. That is why Senators Chuck Schumer and Lindsey Graham are proposing a biometric national ID card for all Americans. You see, the government has a compelling need to know who you are, to put your information into another database, and to determine if you are "eligible" to work here. De facto work permits for Americans in America?! Nice. I’m sure it would never cross the mind of any politician to turn off the work permits of his political enemies.
The answer to the immigration debate is the same as it is to all other issues – more freedom, not more government. Instead of asking the government to crack down on immigration, we should recognize that it is government programs and interventions that are the problem and demand that the government cease these activities.
Unfortunately, while recognizing the problems that government causes in so many other areas, many folks, especially conservatives, apply a double-standard when it comes to immigration. For example, while conservatives rightly blasted ObamaCare pointing out that it will result in the nationalization of the health care system, these same people lament how immigrants are destroying "our" hospitals. They are not "our" hospitals; they are, or at least should be, private businesses which should be able to exclude anyone from receiving their services, but are restricted from doing so by government edict. Likewise, we hear that immigrants are overwhelming the public education system, yet conservative icon Ronald Reagan advocated disbanding the Department of Education and, at a federal level anyway, getting the government out of the education business.
Finally, we have social welfare. It is the existence of government welfare programs that are much of the problem, attracting people to this country who wish to live off the labor of others. Eliminate these programs and you eliminate this problem.
When you empower the government to do something, the government often ends up using these powers in ways that you do not foresee or intend. And it may end up using these powers against you. In the preface to her novel Anthem, Ayn Rand lambasted socialists for not recognizing or taking responsibility for the consequences of the policies that they advocated, ‘they expect, when they find themselves in a world of bloody ruins and concentration camps to escape the moral responsibility by wailing: "But I didn’t mean this!"’
As the United States continues its war on immigration, the government is building the infrastructure for a police state – internal checkpoints, national ID cards, work permits. When we wake up in that police state, will the anti-immigration crowd cry: "But I didn’t mean this!"
*Unfortunately, there is much truth to these statements since land titles in the United States are based on a relic of the feudal system, fee simple, meaning that while one can have an "interest" in one’s land, the land is actually owned by the government, i.e. the government has dominium eminens or supreme lordship.
May 26, 2010
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