Libertarian Arguments Against Open Borders

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K

I am dedicated to an ideologically pure form of anarcho-capitalist thought in the libertarian style, following the mold of great thinkers like Murray Rothbard.

I’ve been asked to appear (or rather, I asked to appear and now the time has finally come) to talk about the libertarian argument against open borders for the Daniel 3 Podcast. These are notes I prepared to give myself some references if I forgot what I was going to say, although I have polished them (barely) and added some additional stuff for readers who don’t want to watch the full video.

Nonetheless, I strongly suggest listening to/watching it. I’ve linked to it on Odysee, but you can find it elsewhere. Odysee is just where I watch/listen to Daniel 3.

Daniel 3 Ep. 70 – April Call in Show : Borders, Political Realism and Privatizing the Commons

Now, there are a few things we should mention at the start. The libertarian position against open borders is not “closed borders” in the strawman sense. Much like most conservatives, nobody would seriously argue that there should be no movement of people across borders.

However, there are many of us opposed to the idea of inviting everyone in, and there are a few things to talk about that help set up why.

Throughout this piece, I will be using the term “access control” to refer to our position. This is more accurate, both because nobody libertarian (that I have encountered, and maybe I am simply ignorant here) is really for “closing borders” entirely, and because it is distinct from conservative/progressive arguments for closed borders.

It Is Not Aggression to be Told No

The ideal of any good libertarian system is to minimize aggression. That is—a good and just law (which would reflect natural law, and not legislative law) is one which leaves nobody with the rightful claim to having been aggressed against.

Of course, there will still be aggressions and damages to which a legal remedy may apply, but this should also be “self-evident” in the sense that someone can point to exactly what they lost because of aggression and therefore make a valid claim to restitution of their own property (including self-ownership).

Because a would-be immigrant cannot point to harms done to them by a refusal to cross borders, it’s not actually clear that any restriction would be libertarian on the sole focus on them being left out.

Rather, we would need to prove a libertarian theory to support immigration, which exists but supports nothing remotely resembling open borders.

Public Property

The first issue that many people will make is that public property ought to belong to “everyone.”

This is a misconception.

If we assume that all property is a subject of economic action with a valid claim (e.g. using Hoppean or Rothbardian ownership ethics, which I won’t go into detail here but can be summed up as homesteading-derived rights), then we must consider that everything has been the subject of some economic action.

We have not truly surrendered public property to everyone. It is private property released into the public domain (e.g. that with a valid claim but whose owner has expressed no interest in enforcing it), it is state property, or it has reverted to unclaimed property.

In the first case, the matter of public domain, the claim may be irrevocable but the ownership still, under libertarian legal theory, must revert to the owner. It is a choice not to enforce rights.

However, this may also constitute abandonment to unclaimed property, in which case the rights may be appropriated by a third party, making the legal concept fraught with issues.

I would argue that state property, with the odd exception of donated goods not gained through taxation (which can be thought of as belonging to a firm with an executive), is inherently illegitimate. This will form the foundation of one libertarian argument against open borders.

The reversion to unclaimed property is irrelevant to the immigration debate. If someone can prove that property has no valid owner (because owners may die without heirs, proper ownership has ended, or a complete abandonment of rights by an owner), they may have it.

Public Lands

One objection that people make is that lands which ought, under a libertarian legal theory, to be unclaimed are being held hostage by the state without a valid claim.

This is true.

If the immigration debate were really people settling unused lands at the borders and eroding from Uncle Sam’s bandit kingdom, then there would be only a dubious utilitarian case that borders may be where they are to make enforcement easier, in which case there would be no issue with giving away the lands.

In short, it is important not to confuse the nebulous concept of “public lands” which really are ripe for homesteading and appropriation, and public property—which is that which the state claims an ownership right to and which is validly owned property, albeit perhaps not the state’s.

Further, while the usual encirclement issues would not negate the ability to claim these lands, it is nonetheless the case that in practice anyone seeking to use public lands will almost certainly pass public or private property to get there.

Citizenship

As an anarchist, I have little respect for the notion of citizenship, but it is not illegitimate as a form of access control.

In a perfect world, the state would cease to exist and all access controls would involve private property simply off limits to individuals as a direct response to that property owner’s directives.

In the real world, however, it is worth pointing out that the alien may be excluded from the property of a native citizen.

This is perhaps not fair, or just, but it does not represent an act of aggression against foreigners to be told that they cannot enter the domain of the state.

Because this is not an act of aggression, it is not illibertarian to deny access, even if we can question whether we’re doing it for good reasons or not.

The fact remains that there are those who would rightly be denied access to a libertarian social order’s spaces and who would be confined to either their own private property or lands elsewhere (e.g. murderers, rapists, and criminals), and as a result there would be de facto borders, just not on the arbitrary idea of citizen or foreigner.

Against the Invitation Argument

Invitation is the normal process by which one may enter another’s property without gaining a claim.

As such, it may be argued that anyone invited into a country, regardless of background, should be let in.

However, this is only clear when there is a single person’s property involved or a contractual arrangement. Since the state has stolen property, anyone who is inviting someone else in is simply asking that stolen property be extended further.

It may be objected, of course, that the people under the domain of any state are basically doing this, but there is a difference between being locked in a kidnapper’s basement and eating food you know they stole and going over to a friend’s house and eating food you know they stole.

In the former case there is a matter of necessity. In the second case, it would behoove you to avoid encouraging theft or knowingly consuming stolen objects.

Plus, if anything, this only make the case that life under a state is morally degrading, a case that most of us would readily agree to. It does not make cooperation with the state ethical, especially when it involves going above and beyond the moral degradation needed to survive.

What We Don’t Believe

To sort out some confusion, I want to first create a list of things that get applied by open-borders advocates to libertarians who support access controls.

They Took Our Jobs

One thing that advocates for immigration get right is that it is typically Pareto-optimal.

In the US context, people who come here may still be paid less than a long-term resident with higher expectations for standard of living, which drives down prices. They make more money, and can send portions home to support family members abroad in palces with a lower cost of living.

In practice, if the complaint is really that immigrants drive native-born citizens out of work, the proper solution would be to look at why that is occurring, such as minimum wage laws, labor preferences, and the like.

The economics of immigration are almost always massively pro-immigration, and when they do not come out as a net positive there is usually some reason that can be cited, such as infrastructure issues, that are almost all more the fault of the state than of the free market.

However, the fact that immigration is positive does not mean that open borders can be supported on this basis alone. That’s a utilitarian argument and ignores underlying issues.

If It Saves One Life

One argument that is made is that citizens have a claim to safety and any crime or serious accident that involves an immigrant harming a citizen is a breach of duty by the state to its citizens.

This is somewhat absurd, given that citizens aggress against each other as well and this rarely seems to lead closed borders types to call for the exile of criminals, much less potential criminals.

And this is precisely why the exclusion of people on the mere basis of potential crime is necessary to avoid. Both libertarian access control supporters and closed borders supporters may argue that a lesser crime merits exile for an outsider than it would for a citizen—where would the citizen go?—but we would also argue that exclusion may be a valid penalty for all private associations. Since we would generally minimize private property, you could wind up with de facto, if not de jure, exiles.

We are not so much concerned about criminal immigrants as the basis for a border policy.

We may argue that access controls are good precisely because they forbid criminals from entry, but this is distinct. Access controls that specifically target known criminals are not what the closed-borders advocates would want, because any non-criminal (or anyone who can satisfy the criteria set by the access controller) would still be free to enter.

Further, the argument that border security should exist simply to keep out criminals and force everyone through a port of entry where this restriction can be applied is valid, but not necessary.

Plus, this argument is utilitarian, which I generally regard as a bad basis for libertarians (since few utilitarian arguments wind up being substantively libertarian from a utilitarian frame of reference, and my own preference is for deontology).

America is for Americans

One of the common anti-immigration concerns is that it will lead to social change.

From a libertarian perspective, this may be an objection only within a particular libertarian framework (e.g. America is more libertarian than other countries, so we should set up immigration in a way that leads to libertarian political victories), in the same way that conservatives or progressives would make this argument should they believe that elections matter.

First, democracy is by its nature anti-libertarian. We can reject this idea out of hand. At the very least, a libertarian who is a “democrat” is forced to greatly restrict the field of democratic decision making, or they are really not a libertarian.

However, libertarianism is not consequentialist. We do not have freedom because we always like what it brings—though it may be argued that freedom will almost certainly improve everything.

Instead, we have freedom because it is a moral imperative. Restricting immigration may improve freedom, but to argue this relies on making arguments from demographics (see “If it Saves One Life” above), and doesn’t stand up to scrutiny.

Second, social change is not undesirable from a libertarian perspective. We may argue that particular social changes are bad—I lament the modern loss of family values as well as traditional and cultural elements that have been homogenized out of popularions.

However, many social changes are neutral or beneficial. It is not change itself, but the direction of change, that matters. This is why I do not call myself a conservative despite my right-wing pedigrees, because I would argue that we should actively make society more right-wing, in Kuehnelt-Leddihn’s style of the reactionary.

This is irrelevant to whether or not borders should be opened or closed because it is not a prescription for immigration on the basis of a policy but rather immigration in pursuit of an end.

It would be nice if everywhere had a bunch of libertarians move in Free State-style, of course. But it’s not a border issue.

We Must Get Rid of the Welfare State First

Although it is true that getting rid of the welfare state would get rid of almost all arguments against immigration, if only because people would lose their right to claim that they were aggressed against by the state permitting access to territory (since there would be, in the complete cessation of welfare state, no public property and indeed no state other than mere banditry), this is not a relevant factor to a truly libertarian analysis of immigration.

Primarily, if something is a moral imperative we ought to push for it immediately.

My argument, and any good libertarian argument against open borders, must be that the open border is not inherently required by a libertarian ethical or moral position.

Moral Universality

One of the touch-stones of the libertarian cases for access control is that any action which is right is right regardless of who is doing it.

Note that this depends on the operator. As a crude approximation, we would argue that, for instance:

One may not kill an innocent man.

One may kill a violent aggressor.

One may not kill a disarmed and incarcerated murderer.

The universality here stems from the fact that you can put anything in the first part of the statement, not that the law universally applies to all individuals (though, of course, it recognizes classes for distinctions, not particular individuals).

When it comes to the borders debate, libertarians who support access controls are arguing from the basis that one may exclude people from their property.

The state is a criminal enterprise—but it is not a criminal enterprise that has different moral opportunities than any other individual or enterprise would have.

Instead, it is a criminal enterprise because of its (self-recognized) immunities, monopolies, and thefts.

If something would be permissible within the libertarian social order or for individuals, it would be permissible for the state.

Of course, this does not mean that the state cannot open itself up to unique miscarriages of justice or morality, and it often does. But this must involve some action of the state (for instance, becoming an intermediary that prevents voluntary association between two capable consenting parties).

This is often the argument made for open borders—that the state is doing precisely this when it forbids immigration (as we can see from Rothbard and Hoppe, who both raise this point).  

A consequence of this is that any argument that the state should enforce access controls must essentially exceed the rights of association, and I have found two cases in which I believe that occurs.

That is, does anyone have a valid case to complain that they are aggressed against when the state permits immigration? I would argue the affirmative on two bases. Both of these would disappear following the abolition of the state, but would both be valid reasons for individuals to exclude others from their property.

Individuals would be free not to press claims, of course, but the state cannot press these claims precisely because it is actually hurting others’ claims when it permits immigration, rather than its own.

Case 1: Property Protection

The first libertarian case against open borders is the protection of property.

I’ve written about this before at length, so I’ll just recap the key details.

In this case, the state is presumed to have an obligation to taxpayers (e.g. banditry victims) to preserve and return the property they have stolen.

It is accompanied by a Hoppean-style idea that the proper role of the state is to liquidate all its assets to private buyers then to cease to exist.

Taken to its purest and most extreme form, the state cannot validly recognize any claim to immigration, and must make a cost/benefit analysis over how to protect that property while undergoing the liquidation process.

In a more moderate form, we could argue that anyone who wishes to come into the state must pay for the use of infrastructure and other civic services.

The reason for this depends on the libertarian understanding of public property. Since we understand that taxation is theft, and the proper response to theft is restitution, the state must protect the stolen property if only until it goes back to the proper owner.

By permitting people to access the property as if they had a valid claim, they are doing something very different than permitting taxpayers to access the property. At least a taxpayer is reducing the proportion of post-liquidation assets they should receive when they impose wear and tear on public infrastructure.

Case 2: Association

This issue depends on the existence of the state, but it could actually be remedied without the complete abolition of the state.

Under the current legal regimen in the United States—and in most countries—individuals are expected to associate with people in various enterprises and endeavors without their own final say over matters.

One of the problems with this is that by permitting immigration, they are essentially growing this bubble of forced association, and the state often has rules that forbid discrimination with implicit or explicit aims at preventing citizens from refusing to associate with non-citizens.

This can also be combined with the property protection case, since, for instance, public infrastructure such as public education draws no distinction between immigrants and non-immigrants.

Beyond imposing the ordinary costs of service, associating with foreigners may impose additional costs—if schools are obligated to provide, for instance, translation of materials sent home to parents, specialized instruction for students arriving with limited language skills or educational deficits from their life in other countries, and so forth this imposes a cost.

Locality Preference

This is an example of a non-discriminatory reason why people may choose not to associate, since they might simply argue that having English proficiency would be a pre-requisite for immigration (or coming to schools).

However, the fact also remains that some people may choose to associate only with people from their own regon. This could be for practical and relatively neutral reasons. People who live in a small town may have connections to each other they do not have with outsiders, even if they have no particular animus against any outsider in particular to accompany this nebulous distrust of all outsiders.

This could be because local law enforcement is functionally non-existent, for instance. Without any security firms, individuals would bear the risk of any interactions with outsiders themselves.

This makes less sense on a nation scale, but the absurdity of the nation state is to blame for this.

Further, there might be people who do explicitly want to discriminate. While I find the reasons these people usually give to be unconvincing, we understand human action as steps taken to avoid discomfort. Even if the reasoning behind an action (or a psychological discomfort) is faulty, it does not change the fact that a neurotic may have as solid a claim to harm on the basis of forced association—which denies them the opportunity to dispose of their property in a non-associative way.

Democratic Dilution

Another question here (and the reason I prefer for access restrictions) would be the democratic issue, in which a democratic state in particular has issues that, say, a monarchy would not. Immigration does not change the king, but it does change the votes.

Since political power can have aggressive or libertarian ends, it is entirely right for people to point out that people coming to a country will have says in society that alter things.

And since democratic voting is not just limited to the major national elections, which are typically off-limits to outsiders, but also to local and larger functions, and many political activities besides voting are accessible to non-taxpayers and non-citizens when the borders are opened, the citizens of a democratic regime may claim aggression on this basis.

It may be objected that people outside borders can interfere with democratic processes as well, but I already despise democracy as an anarchist and do not see the need to point out how failed or fraudulent the notion of democracy as a representation of the will of a regime’s inhabitants is.

Non-Aggressive Access Controls

Another point to be made here is that any access controls are non-aggressive so long as they do not impose harms on others.

My preference is for essentially unlimited immigration, but only if the following conditions are met:

There is a productive enterprise awaiting the potential immigrant which they have been invited to or they have a claim or invitation to property in the area.

Caveat: If the property in the area is retrievable, it may be presented to the prospective entrant instead of permitting access (e.g. “lost baseball in backyard”).

They are not engaged in a criminal enterprise, such as fraud or violent aggression, nor is there a valid and recognized judgment against them in a court of law that they have not yet made restitution for.

They pay any prices for access to thoroughfares and spaces per agreement with the providers of roads and infrastructure.

These would be entirely non-aggressive, and therefore morally acceptable, and they would be possible within the state context.

Non-Aggressive Access Controls Under the State

We generally deplore the use of massive armed police forces at the border. This is both needlessly brutal and needlessly expensive.

We know that this leads to massive loss of life, both from those preyed upon by smugglers and those who fail to cross the border.

The solution is to think beyond borders. Linking public services to proof of citizenship or a mandatory contribution of money (which might also be a way to render taxes “voluntary” by allowing people to forego paying passes and let their citizenship proof lapse, but that’s a subject for another time and I doubt the government would pull that off in a way that isn’t needlessly awful).

This reduces the incentive to come, since you’d come and then have to pay for roads, pay for schools, pay for policing (a surcharge on residency?), and so forth. By selling these services in this way it creates a gradient of enforcement. Since this would be handled per institution, in the same way that a public library requires one to show ID and proof of residence to get a library card or may sell access to people from outside the local jurisdiction, it makes it substantially less valuable to come from abroad without following the immigration process.

While this would, of course, represent less access to these public services (which are, of course, paid for by expropriated taxpayers), it would permit more opportunity going forward.

Another advantage here would be a move toward privatization. While we would not expect to see the public sector fees really represent the market prices of goods, having these fees would normalize the idea of paying for things like public schools and public roads and would put a foot in the door for full privatization.

It would also mean that those who really wanted to employ people who had not been granted legal permission to immigrate could do so, with the costs imposed on taxpayer-funded property partly made up for by the additional fees for non-citizen users.

Until we reach a libertarian social order and the abolition of the state, this seems like a step that would

Refugees

It is worth noting that there is a particular problem with state sponsorship of refugees. I am not anti-refugee, but I think that all this must be handled privately.

Bringing refugees from distant countries to our lands involves massive additional expenditures in social support—if the government wanted to assist these people it would be much easier to support them in culturally similar areas, where, for instance, refugees are less likely to face a language barrier.

There could also be the same provisos about private sponsors paying refugees’ ways into the country. I do not even ask that these people host the refugees themselves, merely that they contribute to a charitable organization to do so.

For instance, my church takes in homeless people. It would not be massively more difficult for them to take in refugees, and there would likely be networks of donors to pay for the civil infrastructure costs related to the refugees.

All I ask is that refugees not be invited in on taxpayer dime, or at least that we not consider them when considering the border control argument, especially as it relates to the “fence hopping” sort of illegal immigration that has become a favorite of the left after the Trump administration’s effort to crack down on it.

This is especially cogent in the American context, since both Mexico and Canada offer decent quality of living, political stability, and safety. With the exception of Cubans fleeing their regime, people who show up on our shores uninvited should be turned back and asked to apply for immigration.

We may make an exception for the Cubans only because sending them back to that murderous regime would have known consequences, given the traditional communist treatment of refugees, and even this should involve some recognition that they have arrived to lay claim to what belongs, legally, to other people.

Conclusion

The reason why I have developed this piece is to show three things:

1.     That open borders policies are not the one true libertarian policy, and must actually answer for legitimate libertarian concerns before being endorsed, despite the fact that they are the darlings of regime libertarians.

2.     That there are deeper moral and ethical considerations than the raw utilitarian, namely the fact that the state is not acting in clean hands when it offers access to its territory.

3.     That there are libertarian-adjacent goals that can be accomplished with a reevaluation of policies in such a way that they align with libertarian moral axioms usually left out of the debate by those who think primarily emotionally.