Bryan Caplan  

Association, Exclusion, Liberty, and the Status Quo

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One of my conservative friends keeps telling me that, "The right to associate is the right to exclude."  As a libertarian, I agree.  But the subtext of his slogan is that libertarians focus far too much on government regulations that abridge the freedom of association - and far too little on government regulations that abridge the freedom of exclusion.  His claim, in fact, is that the only feasible way to protect the freedom to exclude is to restrict the freedom to associate.  Since discrimination laws make it impossible for voluntary contracts to keep foreigners out of a neighborhood, for example, it's OK for immigration laws to keep foreigners out of the country entirely.

All this suggests one big question: To what extent do existing policies that restrict freedom of association and exclusion actually bind?  In other words, how different would the modern U.S. look if people were free to live, work, and play anywhere if and only if the property owner consented?

Let's start with exclusion.  Many existing laws restrict the right to refuse to hire workers and serve customers.  In real estate, restrictive covenants and home owners' associations are common, but if you try to use them for racial exclusion, courts won't enforce them.  Single-gender clubs also occasionally face lawsuits.

I'm against all of these limitations on the right to exclude, but how much do they actually change behavior in the modern U.S.?  Only slightly, for a long list of reasons. 

1. The law focuses on business.  In dating, marriage, friendship, etc., the law doesn't even pretend to try to restrict the freedom to exclude.

2. As standard economics of discrimination explains, people who run businesses face intense selection pressure to see only one color: green.  Businesspeople are usually too greedy to want to exercise their freedom to turn away qualified applicants or paying customers.   Unless, of course, workers or customers are willing to pay a premium for segregation...

3. In the modern U.S., however, there's little demand for segregation.  In fact, demand for segregation is usually negative.  Most American customers would be uncomfortable patronizing a store that turned away blacks or gays.  Existing laws might prevent a small niche market for segregated stores, but that's about it.

4. Under existing laws, there are still plenty of ways for businesses and other groups to "keep out the riff-raff."  Charging high prices is the most obvious; as a fancy mall advertised on The Simpsons, "Our prices discriminate because we can't."  Restaurants can impose dress codes.  Employers can require educational credentials.  Home owners' associations can tell everyone how to cut their lawn.  Cult compounds can require all inhabitants to blindly obey the guru.   Etc. In the real world, mildly clever entrepreneurs can still supply workers and customers with almost all the exclusion they're willing to pay for.

I don't deny that laws against exclusion occasionally have important effects.  But their main effect in the modern U.S. economy isn't to reduce exclusion, but to pressure businesses to either overpay or avoid hiring workers who can easily sue for "discrimination."

Now consider regulations on the freedom of association.  Many are marginal, too.  Not much would change if you legalized gay marriage or polygamy; they're just niche markets.  But one class of regulations has a massive effect: immigration laws.  Indeed, they probably have a bigger effect than all other regulations combined.

It's simple.  Billions of people around the world live on a few dollars a day or less.  Under open borders, tens of millions of them would migrate to the U.S. every year.  Remember: Even if you're an illiterate peasant from Bangladesh, credit markets and/or employers would be happy to front the money for airfare. 

This immigration flow wouldn't stabilize until real estate prices massively increased and low-skilled wages drastically declined.  The U.S. population could easily increase by 50% in a decade.  New cities would blanket the country.  The level of output would skyrocket - and its composition would rapidly change, too.  Whether you love this vision or hate it, you can't deny that free association would radically and rapidly reshape the face of America.

I'm as supportive of the right to exclude as anyone.  But current restrictions on this right are pretty minor.  There are plenty of ways for markets to engineer exclusion, and there's not much demand for greater stringency.  In contrast, restrictions on the right to associate are massive, and there is enormous pent-up demand to migrate.  Hundreds of millions of people want to move here, landlords want to rent to them, employers want to hire them - but the law won't allow it. 

Contrary to my conservative friend, then, libertarians aren't the ones with a blind spot.  He is.   While restrictions on exclusion are occasionally irksome, they rarely ruin lives.  Immigration laws, in contrast, usually condemn their victims to life - and often early death - in the Third World.  Libertarians rightly emphasize the freedom to associate, because the status quo's restrictions on exclusion are minor and mild - and the status quo's restrictions on association are massive and monstrous.



COMMENTS (14 to date)
TJ Hooker writes:

But current restrictions on this right are pretty minor. There are plenty of ways for markets to engineer exclusion, and there's not much demand for greater stringency.

I don't understand this? Isn't there a common meme that people pay an enormous premium to buy houses in good school districts. Doesn't this price show that the demand for exclusion is high?

Two other points.
1. Would landlords and employers really want to rent to or employee these immigrants if they weren't being subsidized by the US government? If you are not taking the poorest of poor, is it really wise to take the middle class out of these developing countries.

2.Immigration laws, in contrast, usually condemn their victims to life - and often early death - in the Third World.

If you believe this, then you are saying that there is no hope that the third world will improve its standard of living. If this is not because of the people, then it has to be because of the societal structure. If societal structure is the driver of a good society, why do you want to radically change the the US's?

agnostic writes:

You must not read the news.

Attacks on the right to exclude are huge and not limited to the private sector. Any business policy that has a disparate impact on men vs. women, non-Asian minorities vs. whites and Asians, etc., is treated as though it were exclusionary -- regardless of intent.

This attack applies to schools of all types and no matter whether they're public or private (private institutions that rely on federal funds are whacked by the state for misbehavior). Fire and police departments. Sports programs for young people. LENDERS forced to make crummy loans to avoid disparate impact...

It's hard to think of an important industry, other than the military, where the in-group *is* allowed to set its admissions criteria as it wants, whether or not that has a "disparate impact" on some group and therefore metaphorically excludes them.

There are some exceptions, such as rich people's housing co-ops, elite law schools, etc. They have enough power to engineer exclusion by other means like requiring high income, 99th percentile LSAT scores, etc. Of course, these Rube Goldberg solutions are more costly and thus more inefficient than the banned alternatives -- else they would've been implemented in the absence of anti-discrimination laws.

So if you've got enough clout and dough, you can devise some way to exclude by means Y if means X is banned. (You might also need a high IQ if the roundabout way isn't obvious.) Thus, while it's anti-exclusion laws are only a minor nuisance for the elite, they kill everyone else.

Henry writes:
I don't understand this? Isn't there a common meme that people pay an enormous premium to buy houses in good school districts. Doesn't this price show that the demand for exclusion is high?

How much of the premium is due to a desire to stop your kids from mingling with "undesirables" (racial or socioeconomic) versus simply a desire for better quality education?


If you believe this, then you are saying that there is no hope that the third world will improve its standard of living. If this is not because of the people, then it has to be because of the societal structure. If societal structure is the driver of a good society, why do you want to radically change the the US's?

You seem to be saying that immigrants will import their societal structure with them. I see no historical parallels with past immigration that suggest this will happen. I don't believe Bryan is suggesting that they all be immediately awarded citizenship, so even if they had an initial inclination to vote for copies of the bad policies in their home countries, they wouldn't be able to.

agnostic writes:

There's also a hydraulic aspect to whether we focus on exclusion or association policies. If we open our borders and lick the massive restraint you see on freedom of association, what consequence will that have on restraints against freedom to exclude? Obviously individuals and groups will have an even greater demand for exclusionary acts -- imagine the Third World moving next door.

With the amount of exclusion thus driven up, the state will mount an even more intense battle against the right to exclude. Then it will be the right to exclude that would be your primary focus.

Without very precise estimates of the magnitudes of these various changes in both areas, it's not obvious that your strategy would on net advance the libertarian cause. You might end up no freer than you started, and you just might end up less, given how Harrison Bergeron-esque your imagined society would become, given how unequal it would be, and given popular and elite taste for freedom-reducing policies that equalize outcomes.

agnostic writes:

"You seem to be saying that immigrants will import their societal structure with them. I see no historical parallels with past immigration that suggest this will happen."

How about the Anglo immigrants who founded America, Canada, Australia, and New Zealand? Clearest example is Common Law, but also applies to family structure, trust / good faith in others (a key basis for functioning of markets), etc. Or the sub-Saharan Africans who populated the Caribbean, Brazil, and the old South in the US?

Obviously you learned all of this stuff in school or elsewhere at some point. It goes to show how self-blinding people become once they want to rationalize open borders.

Henry writes:
How about the Anglo immigrants who founded America, Canada, Australia, and New Zealand? Clearest example is Common Law, but also applies to family structure, trust / good faith in others (a key basis for functioning of markets), etc. Or the sub-Saharan Africans who populated the Caribbean, Brazil, and the old South in the US?

Obviously you learned all of this stuff in school or elsewhere at some point. It goes to show how self-blinding people become once they want to rationalize open borders.

Clarifying: US immigration. In those cases, the immigrants were more numerous than the native populations and more economically and militarily powerful.

Brian Clendinen writes:
"The U.S. population could easily increase by 50% in a decade."

Bryan, not sure if you understand the significant issues associated with rapid growth. 50% one decade growth rate would be ridicules, there is no way state and local entities could handle an additional 150 million people in 10 years.

The general population and anti-immigration back lash due to such a rapid change of culture would not be pretty. Generally speaking people do not like to change, in a democracy this can result in a major popular back lash. I think a 20% growth rate is more reasonable.
It would be interesting if government subsided housing and rent controls were removed. I personal think this is the single largest contributor to inner city urban decay. Not sure how this would effect immigrants internal migration patterns though. There is still the local building restrictions that would cause immigration patterns to flow in unusual directions if your housing price theory is correct. One might actually see the steal belt be repopulated due to the excess of real estate. Not sure were the job growth would come from in the steel belt with their economic restrictions. Telecommuting jobs might work in these regions but not sure how many immigrants would have the skill sets to provide these type of skills.

Alex J. writes:

I wonder how much of our lack of demand for segregation is caused by the suppression of our freedom to exclude. That is, certain acts are banned, and we decide -- or claim -- that the grapes must be sour. I think that the demand for exclusion is much stronger in the heart of hearts of urban property owners than it is in the words of guests of a dinner party.

"open" borders are only fair, or work, if you get rid of all anti-discrimination regulations for the private sector, and allow bunch of people to incorporate into exclusive private townships. The freedom to exclude is a corollary to freedom of assocation

Rebecca Burlingame writes:

Unfortunately, policies of exclusion are the direct cause for the breakdown of governmental budgeting in the present. The limited number of medical schools are the primary cause for the unaffordability of health care in the world. If we were to limit manufacturing in a similar manner, no one could afford manufactured products, either.

ajb writes:

I'm not even going to go into the questionable premise that limits on exclusion are minor and unimportant -- wrong as Bryan is on these. But I'm just going to add that his utilitarian take on this issue is surprising. If the citizens of a nation wish to exclude or regulate who else comes in so as to favor the incumbents (as Canada does through their skill based immigration system) should I really take the utility of the world's poor into account?

I doubt that Bryan would agree to be taxed 80% on his income knowing that the money could help so many more poor people. In fact if Bryan were forced to work so as to earn more income, I'm sure even more people would be helped. Yet somehow he gets to draw the line on which freedoms are important, while the right of exclusion for nationalist reasons (yes, even for narrowly chauvinistic ones) is something he's willing to gloss over. I'm sorry, but **I** have the right to decide that a loss in terms of association for me is worth a "greater" loss to poor people outside the nation. To deny that principle is to make a mockery of liberty and property rights.

Bill writes:

I take serious issue with the idea and arguments regarding property rights that libertarians espouse. Any property anyone in America owns right now is in large part the result of chance, government takings, prejudices, and luck, all based on the history of the last four hundred years. Given this fact, to say that property rights are so absolute is to purposely ignore the reality that those rights now protect ill-gotten gains (to various degrees).

Instead, I would argue property rights are worth many protections, but not to the exclusion of considerations of fuzzy things like justice, humanity, providing education for everyone, etc.

Therefore, attempting to make sense of immigration through a "property rights" lense is a mistake. It should be looked at by balancing interests, not trying to figure out the correct analogy to property rights.

crossofcrimson writes:
Any property anyone in America owns right now is in large part the result of chance, government takings, prejudices, and luck, all based on the history of the last four hundred years. Given this fact, to say that property rights are so absolute is to purposely ignore the reality that those rights now protect ill-gotten gains (to various degrees).

I agree with the first part of this to a degree; and it's worth talking about. I'm not so-much sold on the second assertion. You (as a human being) are probably also "in large part the result of chance, government takings, prejudices, and luck." Yet I would not be so quick to disregard your individual sovereignty for the sake of "balancing interests." Your house may have been built on land that was stolen from Native Americans in a very real way hundreds of years ago, but I'm not willing to protest that I have more of a claim on it than you do - regardless of my good intentions.

If we're going to apply property rights in the context of the complete history of every piece of matter we've happened upon, we're going to have some serious issues measuring the validity of just about ANYTHING we do. That being said, there are many theories on property out there - even within the libertarian sphere. You'll find yourself in good company with libertarians in asserting that a lot of things have (historically) been acquired unjustly. However, reasoning through the dissolution of property rights of, say, German civilians simply because Scandinavia or the Holy Roman Empire has a more "genuine" (earlier) claim on that land...that's a more complicated issue.

Evan writes:
How about the Anglo immigrants who founded America, Canada, Australia, and New Zealand? Clearest example is Common Law, but also applies to family structure, trust / good faith in others (a key basis for functioning of markets), etc. Or the sub-Saharan Africans who populated the Caribbean, Brazil, and the old South in the US?

The first group you list weren't immigrants, they were invaders. That would be like saying the Huns or Mongols were immigrants to Eastern Europe. The second group were kidnapped slaves, not immigrants, and they still absorbed most of their culture from their captors (black southerners talk mostly like white southerners, not like Africans).

I'm not even going to go into the questionable premise that limits on exclusion are minor and unimportant -- wrong as Bryan is on these. But I'm just going to add that his utilitarian take on this issue is surprising. If the citizens of a nation wish to exclude or regulate who else comes in so as to favor the incumbents (as Canada does through their skill based immigration system) should I really take the utility of the world's poor into account?
The reason Bryan seems selective to you is that you are treating freedom of association and exclusion as collective rights, whereas Bryan treats them as individual ones. To provide a concrete example, in a world that respects people's rights (according to Bryan), if I wanted to employ some foreigners or rent property to them, that would be my business. If the rest of the citizens disagree, tough. Trying to tell me I can't do that is on the same moral level as trying to force me to change my religion.

Bryan's utilitarian arguments are, I believe, secondary. He is primarily defending the property and association rights of pro-immigrant citizens from the encroachment of anti-immigrant citizens.

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