Based on his public policy statements, it seems likely that Donald Trump would not know a libertarian principle if one came up and bit him on his nonaggression axiom. I suspect he would not know Hayek from a hole in the ground.
But is it possible that his position could be consonant with libertarian principles? Can we make a libertarian argument for immigration restrictions and border control?
Libertarians have, over the years, taken a variety of views on the subject. In today’s libertarian mainstream (if there is such a thing), however, there appear to be two dominant views:
Position 1: Border control + unlimited legal immigration
Libertarians hold that people, capital, labor, and ideas should all enjoy freedom of movement. Controls on immigration, insofar as they restrict the movement of people, are a violation of that freedom of movement. However, given that it is also the role of even the most minarchist government to protect the citizens who empower that government, many hold that the state can and should maintain and control borders to prevent criminals and enemies from entering the country.
Position 2: Open borders
Some libertarians argue that government enforcement of borders not only restricts the free movement of people, it also involves the initiation of force and, as such, is a violation of the nonaggression principle. In order to prevent this violation, borders must be open. Some further argue that the state itself is illegitimate, and thus borders are artificial barriers between people and should not exist at all.
As I have argued elsewhere, the nonaggression principle (which states that it is morally wrong for one person to initiate force against another) on its own may not be the ideal way to frame the core operating principle of libertarianism. The focus should be less on the force itself and more on the purpose of the force. In my view, the core principle should be stated thusly: force is only legitimate when it serves the purpose of protecting rights. Protecting human freedom (and all the rights concomitant therewith) is generally held to be the libertarian’s primary goal.1 Thus, our core operating axiom should focus on rights.
And when analyzing questions of immigration—To what degree do we restrict it? How do we control our borders? Should we even have borders at all?—we should look at it all in terms of human rights.
#1: Social Contract
Whose rights are we protecting?
Human beings almost never exist in isolation. We want and need to associate with others. And it is our right to do so. We have the right to gather in groups—based on kinship, fellow feeling, shared beliefs, mutual goals, or for whatever reason we wish—free from the interference of the state or any outside entity. If we wish to formalize that association, we may do so. We can combine our right to association with our right to engage in voluntary commerce and form a business entity. We can also formalize an association for broader community-based goals through our right to mutually agree to a social contract.
Some people scoff at phrases like “social contract” and “state of nature,” suggesting that when it comes to the formation of nation states, these are purely artificial constructs with no real-world application. Setting aside for the moment that these concepts, even as artificial constructs, have proved both useful and seminal in producing the philosophies of the Enlightenment, the American Revolution, and the libertarian and conservatives principles that have sprung therefrom . . . they also can and do apply in the real world . . .
The state of nature is not only a primordial or Edenic condition.2 It can exist in situations in which formal government is absent or has broken down:
One is in a state of nature if one is sufficiently removed from society and formal governance, such as on a deserted island.
A temporary breakdown in law and order, following a natural disaster or during a war, can place people into a relative state of nature for some amount of time.
A transformative revolution that completely overthrows an existing order, leaving a tabula rasa, is a temporary state of nature until a new order is etched into that blank slate. This is what happened in the American founding, with the Declaration of Independence constituting a sort of social contract among the people and the Constitution being a social contract to form a consensual government.3
A community or tribe that codifies some sort of rule of law and develops the ability to enforce that law may be said to have transitioned from a primordial condition to formal statehood. If that rule of law, and the operation thereof, has a consensual character and can be altered by the people, it can be said that this involves a form of social contract.
The devil is always in the details (some of which we will explore elsewhere), but the bottom line is that any group of people may agree to associate, and to formalize that association via social contract, even up to the level of a nation state.4
Thus, I am not simply saying to fellow libertarians, “Nation states exist—get used to it.” This is not solely a call for a form of libertarian realpolitik. Rather, I am saying that nation states can be legitimate expressions of human association.
When you hear that, try not to think of the massive, wealth-redistributing, rights-violating mega-states that predominate today. Assuming we are not pure anarchocapitalists (a fine discussion for another time) and believe that some sort of minimal, consensual state can be justified, it is then entirely reasonable to consider that such a state can be a legitimate result of group’s desire to associate for a purpose.
Establishing the notion of a legitimate, consensual state in turn creates an inescapable distinction: citizens and non-citizens.
This distinction is not only inescapable, it is also reasonable. A social contract reflects the character and wishes of those who formed it in the first place, and the subsequent generations who continue to consent to it (and who hopefully retain the ability to alter or abolish it). Such a social contract is not between a group of people and the entire rest of the world. It is between and among those who formed it. And is that not reasonable? Is it not the right of a group of people to do this Suggesting that it is not—that any group of people must welcome all comers, without choice, without scrutiny, as would happen in an open-borders scenario—seems like it would violate the rights of that group, no?
Libertarian advocates of open borders appear to come at the question solely from the perspective of the would-be immigrant, ignoring the perspective of the citizens of the society the migrant wishes to enter. Does that make sense? Does the migrant’s right to movement trump all other considerations, even if that movement takes him across a border into a national “association” of which he is not (yet) a part? Are there not other rights at stake—rights that also need to be defended?
The reason people consent to government in the first place!
It is sometimes said that conservatives believe what they see whereas modern liberals (read: progressives, statists, leftists, etc.) see what they believe. In other words, conservatives accept the world as it is and attempt to create policy that conforms to reality, whereas the leftist pretends that reality conforms to his belief of how it should be, rather than seeing how it actually is. Unfortunately, some libertarians seem more inclined to behave like leftists in this regard.
It isn’t just a tendency towards heady philosophizing and ideological absolutism, though we are guilty of those too. (It’s easy to fall into this pattern given the glorious, inescapable moral logic of libertarian principles!) But many libertarians go much further. Like the Marxian vision of the communist utopia at the end of the socialist rainbow, some libertarians speak and act as if the world is not only capable of becoming the libertarian utopia they believe it can be, but that we’ve already arrived there. They then proceed to make policy recommendations based on a world that, even if we believe it can exist, certainly does not exist now.5
All too often, libertarians suggest approaches to immigration that seem to see the world not as it is, but as it would need to be in order to justify the suggested approach. It is an approach that must pretend that there are no criminals, no bad actors, no enemies wishing the citizens of a nation harm. It must pretend that everyone crossing the border shares the same belief in individual liberty and the civilizing principles of western culture that we do, and to the same degree.
It is an approach that must be justified through hypothetical scenarios about peaceful brothers who own adjoining ranches on either side of the U.S.-Mexico border, rather than dealing with the reality of beleaguered property owners subjected to endless waves of trespass, property damage, and direct physical threats by border-crossers.
The individual human has the core natural right of self-defense. When combined with our right of association, we have a right to mutual defense—we can work together to protect each other. In a state, this gives rise to the formation of police forces and military in order to secure individual rights generally.6
We can argue about how dangerous the world is—about just how much internal and external security is needed to meet that danger—but we cannot pretend that there is no danger. Protecting its citizens from force is the most basic core function of even the most minimal state. (There is no night-watchman state if there is no night watchman.) Immigration policy that pretends there is no danger, or that underplays the danger in order to justify a worldview, not only prefers the objectives of non-citizens to those of citizens, it puts those citizens at risk of being subjected to force. As such, would this not constitute a fundamental failure to perform one of the few actual legitimate functions of government?
Yes, a government must use force to protect against whatever danger exists, and giving a government such power is always a risk. And yes, some of the danger is caused by the fact that migrants feel the need to sneak in, in contravention of existing immigration policy, creating chaotic trespass scenarios. That too is not ideal (though it would be significantly alleviated by an ironclad border coupled with a better legal entry system). But suggesting that there is no danger—that migrants do not also include among their number criminals, future net tax-consumers, and others whose intention in coming into the country is to cause its citizens harm at some point in the future—is in itself dangerous.
Pretending that all migrants are harmless, freedom-loving people carrying the works of Locke and Rothbard in their bindles risks marginalizing us to the sidelines. We’ll look awesome there, donning our turtlenecks of ideological purity, but we’ll be sipping mocha-lattes of comparative irrelevance.
#3: Property Rights
Even if we stipulate that in some ideal world, nation states with borders ought not to exist, they do exist. But is it bad that they exist?
I have a border around my property. It tells everyone, “Here begins what is mine. I can exclude you from this.”
Most libertarian schools of thought see property rights as not only a core principle, but a sine-qua-non principle for any free society.7 And history has shown, time and time again, what happens to societies that do not respect property rights. Property rights are a cornerstone of any functional, free civilization.
When a migrant crosses a national border, he must either cross over private property or public (government) property:
A government that not only allows migrants to cross private property, but that also ties the hands of the property owner, telling her that she cannot defend her property against trespass, is failing at its core duty and violating a fundamental right. (In doing so, such a government is ceding its legitimacy.)
When it comes to public property, the state (if it should exist at all) should certainly “own” as little property as possible—only that which is necessary to carry out its small number of legitimate core functions. Moreover, in any state that can be considered the result of a consensual social contract, the people are rightly considered to be the “owners” of the government and all its property.8 (Once the government truly starts to become an entity unto itself, over and above the people, such that its property is not longer considered to be the people’s, that society has a big problem.) Thus, it does not seem morally reasonable to suggest that a migrant who enters the country but solely trespasses on public property is of no concern to the taxpayers who “own” that property.
The free movement of peoples within a nation state is, without question, a core natural right. But does that apply to moving across national borders too?
Excludability—the ability to keep others from using or occupying one’s property against one’s wishes—is at the core of private property. We let people move around the country, but they don’t get to violate the property of others. That’s why we build roads and sidewalks—to help balance the human right of property with the human right to move, travel, and migrate. We can discuss at a later time what of those infrastructural elements can and should be created privately, but however they are created, they serve the purpose of balancing, hopefully as harmoniously as possible, these two essential rights.
Why should the principle that motivates the creation of such an infrastructure break down at the national level? Why are property rights fine within a country, but meaningless at its border?
Can government take down the “No Girls Allowed” sign on your boys’ treehouse?
So far, we’ve mostly taken on position #2: the belief that borders should be open or nonexistent. Those who hold position #1—that border control is reasonable, but that legal immigration should be largely unrestricted—would most likely agree with much of what we have said here.
But what about legal immigration? Are there any natural-rights principles that might justify restriction there too? Possibly.
We begin with the notion that just as people have the right to choose with whom we associate, we also have a right to choose not to associate.
I am married to a very attractive redhead who consistently looks 15 years younger than she is. I am not bragging—I am merely pointing out that out there among the eight billion people of the world, there is probably some man (or woman) who would enjoy gaining access to all the perquisites of our conjugal arrangement. But our marriage is an exclusive association, just for us two. We have the right to exclude anyone—indeed, everyone else on the planet—from joining together with us in a marital threesome.
Groups—associations of individual humans—enjoy this same right:
The dojo where my wife, son, and I study karate is open to the public, but if a violent psychopath wants to start studying there too, our sensei, for the safety of all concerned, has every right to say no. A group of friends, a neighborhood supper club, a civic institution, a business, or any other group has the same moral right to exclude people.9
So does this right rise to the level of a nation state? If we presuppose a comparatively consensual, legitimate, representative government, would it be moral for the policy of that government to reflect an aggregate desire of the people it represents to place restrictions on who is allowed to become a citizen?10
The starting point of a legitimate government presupposes a particular group of people. It does not presuppose all people in the world. What if that particular people has a culture it wishes to maintain? I know that sounds controversial—that people might wish to exclude others because they wish to maintain some sort of cultural “purity”—but is it unreasonable from a rights standpoint to allow them that option? Does the government empowered by such a people simply have the authority to say, “Sorry, you do not get to decide what your culture is going to be—we do”? Is it ethical to force a group of people to accept others into their association?11
What if the very nature of the association is dependent on some cultural element? I am an English-speaker, and one good look at the history of the world indicates that living in the Anglosphere, my individual rights are safer than pretty much anywhere else on the planet. (Not perfectly respected, but safer.) In many other cultures, respect for individual rights is far less robust, and in some cases, it is basically nonexistent. Does it put the very nature of the social arrangement of which I am a part at risk if large numbers of people arrive from cultures who do not understand, care about, or wish to perpetuate the very elements that have made that arrangement so uniquely protective of individual human rights? Is one not even allowed to ask this question?
Do would-be migrants have an automatic right join in someone else’s association just because they want to? If that association says no, are any of the would-be migrant’s rights being violated? A culture itself does not have rights, per se—but do people have a right to exercise the excludability component of their right to association in order to maintain a particular culture or national character?
What if the concern of the polity in question is not cultural but environmental? What if the country is small and a large influx would further reduce their already-dwindling wild spaces, habitats, or unique biomes? Is that concern legitimate? And is it wise to empower a government to pick and choose what reasons they deem reasonable and thus allowable?
These, and all of the questions I have raised above, are difficult and do not yield themselves to easy answers. But they are suggestive . . .
To the libertarians who are convinced that an open-borders policy does a better job of respecting human rights overall: Are you sure?
If a government says to the people, “To heck with you—we’re letting these people in and there’s not a damn thing you can do about it,” does that government really represent libertarian principles better than one that takes into account citizens’ rights of privacy, defense, property, and association? Are you sure?
The guiding light of libertarianism is the belief that power is dangerous and should be used sparingly, and avoided (in favor of persuasion and voluntary action) whenever possible. And when power is used, it must only be used to protect, secure, and equilibrate legitimate natural human rights. When it comes to immigration policy, perhaps we should give more thought to what approach would best accomplish that aim, rather than jumping on an open-borders bandwagon too quickly.
1 This of course refers to deontological libertarians, who base their views on the notion that the nature of human existence and interaction produces certain ethical imperatives that must be respected. Purely consequentialist libertarians’ goal is human flourishing; they believe that libertarian principles produce the best results and adhere to those principles for that reason. Most libertarians tend to be a combination of the two.
2 There is obviously a similarity between a “state of nature” and “anarchy.” Some distinctions can be drawn, though, and this is a subject I will eventually cover.
3I am trying to find the issue of Imprimis where I first read this terrific formulation. I believe it was from a speech by Edward Erler, but I am not sure. Still looking!
4 Madison frequently stated that all “just and free government” is derived from social compact—the idea embodied in the Declaration of Independence, which notes that the “just powers” of government are derived “from the consent of the governed.” Social compact, wrote Madison, “contemplates a certain number of individuals as meeting and agreeing to form one political society, in order that the rights, the safety, and the interests of each may be under the safeguard of the whole.” The rights to be protected by the political society are not created by government—they exist by nature—although governments are necessary to secure them. Thus political society exists to secure the equal protection of the equal rights of all who consent to be governed. Edward Erler, “The Second Amendment as an Expression of First Principles,” Imprimis, March 2013 — Volume 42, Number 3
5 Don’t get me wrong—I believe deeply in the inescapable moral logic of our core principles, and ideologically, I am all for unwavering adherence to those principles. And I am always (much to the chagrin of my wife when we’re driving somewhere and I begin to wax rhapsodic about those principles!) up for some heady philosophizing. But outright utopian thinking, especially that which ignores the basic realities of the world as it actually exists, risks marginalizing libertarians even further than we already are. That is counterproductive—liberty has too few friends as it is!
6 And that state ceases to be legitimate if the activities of police and military cease to conform to that goal.
7 I prefer allies to enemies, and thus am not one to anathematize other libertarians and conservatives for disagreements on specific points, but less face it—anti-propertarian “libertarians” are just Marxists nesting in libertarian circles like bats in an attic!
8 There are some good notes on the subject of government property and who owns it in “A Libertarian Case Against Mass Immigration,” by British paleo-libertarian Keir Martland.
9 I am aware that this sounds like I am positing the existence of the kind of collective rights that you hear the left trumpeting about. I am not. First of all, the left tends to cite “collective rights” in a desperate attempt to discredit the concept of individual rights—to suggest that there are no individual rights, only social forces that impact groups. Individual rights are the single-biggest philosophical impediment to their agenda.
Associative rights, on the other hand, are an entirely legitimate outgrowth of individual rights—the aggregated result when individuals exercise their right to association in various ways. If there were individual rights but no associative rights, then government could dictate how and when churches conduct their services; force businesses to reveal their trade secrets; break up private clubs; disallow private exchanges; etc. Government officials could say, “Sure, you have rights as individuals, but your group has no rights.” Think of associative rights as a collective expression of individual rights—we want to get together to do something in a particular way with particular people for a particular purpose, keep our activities private, etc. Saying that we cannot do that is saying that we lose our individual rights as soon as we gather in a group.
10 Please note that I am not a fetishist of “democracy” or even the far more preferable system of “representative democracy” we currently have. I do not believe everything should be up for a vote. In fact, I believe very little should be up for a vote—most of the governing principles of a society should already be enshrined in a robust constitution that protects the maximum enjoyment of rights by the individual and strictly limits what government can do and what is available for the people to vote on. Indeed, I believe that if we are to improve upon our current situation and continue the long, slow march away from tyranny and towards greater liberty that has been underway for the last millennium or so, I think that is the direction we may want to head. Certainly representative democracy is an improvement on earlier systems, but it, in and of itself, is a stopping point on that journey, not the ultimate destination of it.
All of that being said, though, is it a greater protection of rights to allow a group of people to decide who becomes a part of their social contract, or to structurally forbid them from doing so? That is the question we are asking here.
11 One possible answer here is to use the principle of subsidiarity. The smaller the unit of decision-making, the less likely it is that conflict will arise and the more likely it is that some sort of unanimity is possible. Obviously, this approach has rights implications as well, but these are questions we need to ask, rather than just assuming that the only position consonant with rights theory is to support open borders.