Bryan Caplan  

Immigration, Trespassing, and Socialism

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To trespass is to enter a piece of land without the owner's consent.  What should we infer, then, when people argue that illegal immigrants are guilty of trespassing?

At first glance, the trespassing shoe doesn't fit.  The typical illegal immigrant:

1. Occupies his place of residence with his landlord's consent.

2. Occupies his place of work with his employer's consent.

3. Occupies each place he shops with the merchant's consent.

Indeed, it is precisely because of these facts that the law actively punishes employers for hiring illegal immigrants.  The government doesn't merely alert employers to the fact that an employer is an illegal immigrant, then allow the employer to take whatever action he deems appropriate.  Instead, the government makes it illegal for an employer to knowingly invite an illegal immigrant to come work for him.

At least this is how things appear on the surface.  How then could illegal immigration constitute trespassing, surface facts notwithstanding?

There's really only one way: If the government - and not landlords, employers, and merchants - is the true owner of the nation's homes, businesses, and stores.  If the government is the legitimate owner of all the property in the nation, then and only then do you become a trespasser simply by entering any piece of property in the nation without the government's consent.

The name for the view that government (or "the people" if you prefer) rightfully owns everything, of course, is socialism.  The socialist needn't believe that everything government does is right.  He does however need to believe that government has a right to do anything to everything - and everyone - under its rule.  (Why everyone, and not just everything?  Because by remaining on the government's land, you're consenting to its rules.  Love it or leave it). 

Socialism is a internally consistent doctrine.  You can't sway the true believer with moral counter-examples.  No matter what godawful thing the government does, the socialist can say:

1. The government has a right to use the nation's resources however it wishes.

2. When in doubt, see #1.

A few decades ago, the world was full of people who found socialism morally plausible - or even true.  In those days, the claim that "Unless socialism is true, illegal immigrants aren't trespassing," would have little force.  It might even become an argument for socialism. 

In our post-Soviet age, fortunately, socialism has become extremely morally implausible to almost everyone.  "Unless socialism is true, illegal immigrants aren't trespassing," should be an awkward dilemma for even the harshest critics of immigration.  So I have to ask them: Would you rather embrace socialism - or abandon one of your most rhetorically powerful arguments against immigration?



COMMENTS (67 to date)
gwern writes:

> Socialism is a internally consistent doctrine. You can't sway the true believer with moral counter-examples.

And of course, you can't sway the libertarian true believer with problems either: the logic you use for the illegal immigrant can be applied to any crime short of coercion. No matter what godawful thing can be committed without immediate coercion, the libertarian can..#1...#2 ah forget it, you can substitute in the various values yourself.

(Bullets don't taste very good, whether you bite libertarian-sold bullets or socialist-forged bullets.)

Vipul Naik writes:

I have to call you out on this one. The sophisticated proponent of collective property rights is focused on immigrants' use of public streets and parks, not on immigrants' use of private homes, businesses, and shops. While I don't think that the restrictionist case based on these arguments is slam dunk, it's a glaring omission to not explicitly consider these in a blog post explicitly devoted to the collective property rights argument. Nathan Smith developed a theory of the streets in order to overcome this objection and justify the right to migrate.

Lorenzo from Oz writes:

Surely, a polity can be a club good. And one can trespass on a club's territories.

8 writes:

This argument is lame because the trespassing argument is lame. Nations are collective enterprises.

Tom West writes:

I think we're approaching a tautology here. The entity that has the ability to control the resources of the country *is* the government. How it chooses to use that power is a different matter.

If there's some dream that some greater authority prevents the government from exercising that authority over resources, then that greater authority is the government...

The government is the entity that sets the rules, so by definition, there cannot be a limit on government - be it a government that is currently choosing to rule within a constitutional framework, a Libertarian framework or a socialist framework.

Bedarz Iliaci writes:

The economists start with an individual with his property--both lacking a context.

Alternatively, we can start with a Nation or a tribe with its territory.

This is the proper context in which private property (in land) exists or is meaningful even.

A Right is a conclusion of a series of Arguments. Thus a Right makes sense only in a state of laws.

Nations exist in a state of nature (Locke). They occupy territory (they do not "own" territory) by Force and not by Argument.

The individuals exist in states of laws. A particular state of laws, we may add. Thus an American exists in an American state of laws, a Frenchman exists in a French state of laws.

The libertarian error here is simply the logical end of the liberal stream of thought.

Alex Godofsky writes:

This post is long on semantics and short on actual arguments for the merits (of which there are many) of permitting more immigration.

Feudalism would work with a similar premise: the king owns everything and can revoke your rights to your property because you only have it as a fief. So if the king does not want you here in the first place, then bad luck, no matter what his underlings would want.

Since modern states (at least in Europe) have evolved from such states, I guess such a view comes as rather natural to many people, and it has more of a conservative overtone.

Hence your argument does not work as well because someone does not have to advocate something as radical as a socialist revolution to apply their argument. The king (or state) does not have to meddle with everything on a regular basis, only retain a right to do so if he (it) likes to.

Arguably, feudalism and socialism are quite similar and can be fused to something like Bismarckian state socialism (perhaps a good description of the prevailing ideology today). Incidentally, Bismarck started to deport Poles from Austria-Hungary and Russia in the 1880's after a period of open borders in Germany.

BK writes:

People want to immigrate to rich countries because they have good institutions. It's much better to live under the laws and rule of the United States and its electorate, or Singapore and the PAP, than it is to live under most systems of governance.

It's not the geography, or just the skills of particular people one deals with on a day to day basis, that is most valuable to immigrants. The U.S. government was set up by Americans for themselves and their posterity, with procedures for regulating the admission and naturalization of additional citizens where this was the desire or interest of the existing citizenry.

What's so shocking about a polity deciding who gets the benefit created by living under its rule, especially when different entries may improve or damage that institutional quality, and may help or hurt the aims of the people who set up and sustain the institutions?

Pharmaceuticals are developed because governments use their monopoly of force to enforce patents, preventing willing makers of illegal knockoff drugs from employing willing workers to sell to willing customers. But without patents we wouldn't have the huge pharmaceutical formulary that we do, and a lot of people would be worse off.

If the law sets limits on the fish that can be taken from a fishery, to prevent catastrophic overfishing destroying the resource, fisherman who fish without quotas have to be stopped by state force. Even if they employ willing workers and sell the fish to willing consumers.

Any attempt to solve a collective action problem has to deal with holdouts and those who would like to make a profit by violating the rules. But most of our wealth depends on such solutions.

A libertarian or anarcho-capitalist extremist can condemn them all, or demand that the benefits exceed costs by ten times, as Bryan has suggested. That is a standard so demanding that it could destroy most of our prosperity: a policy that was responsible for 90% of GDP but inflicted costs of 12% in violation of libertarian norms would fail Bryan's test. And much of our wealth is built up from the accumulation of many non-libertarian policies with sub-10x gains.

But for the rest of us, if states with the power to enact laws that affect holdouts, including immigration laws, make most of the residents much better off while leaving plenty of land elsewhere (which is comparably good in respects other than the very government institutions being called into question) they have a pretty good case to justify their existence and authority.

Now, one could move away from the libertarian deontology and argue about facts and consequences, and whether the world as a whole or various electorates making decisions would be better off under different institutional arrangements (which I would be more interested in), but this appeal to libertarian axiom is not very compelling.

BK writes:

In this post Bryan allows that "private governments" such as collectively held condominium buildings, neighborhood associations, and so forth would be justified. This even though there are children born in such communities who did not agree themselves to the terms. So if the early history of the United States were different (uninhabited land seized by a company that then set up a democratic republic within its private land), but it was otherwise as it is today then this trespassing argument would reverse.

I think this illustrates the flimsiness of the OP not just for socialists, but for non-libertarians in general.

Jason Malloy writes:

In our post-Soviet age, fortunately, socialism has become extremely morally implausible to almost everyone.

This will certainly come as a surprise to every developed economy in the world which mix market and socialized structures to serve popular preferences. Meanwhile there isn't one "Universalist Libertarian" nation, nor could such a far-fetched oxymoron sustain itself.

Tracy W writes:

I'm with Vipal. The analogy falls apart because the illegal immigrants (and everyone else) use publicly-owned roads, pavements, etc to get around.
And I'm much more pro-immigration than most.

Steve Sailer writes:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Steve Sailer writes:

By the way, Bryan, how has your theory that illegal immigration will just make voters more libertarian been holding up over the last week? Any new evidence?

Ghost of Christmas Past writes:

"What do you call a worker who is involuntarily confined to his employer's property?"

"A slave."

An illegal alien occupies his place of work for several hours each day with his employer's consent (and at his employer's risk), then, if he is not a slave, he may leave his place of work and occupy his residence with his landlord's consent, or occupy someone else's residence without her consent...

The point isn't the crime rate of illegal aliens,* the point is that people are autonomous actors.  They don't just disappear when they are not at work, they hang around creating externalities and risks which their employers do not bear. So all Caplan's huffing and puffing about "trespassing" or the injustice of interfering with "willing workers" striking bargains with "willing employers" is nearly irrelevant:  if Caplan thinks employers should confine and utterly control their workers then he is calling for slavery (which seems rather un-libertarian to me, not to mention un-pacifist) and if Caplan is not calling for that, then everyone else in society still has to deal with those "willing workers" all the hours they're off their employer's clock-- and it may still be the case that the best way to deal with them is to exclude them from the country altogether.

*In America today, illegal alien workers are not very criminal on average, but their children and grandchildren are much more criminal than non-minority natives, possibly due to reversion toward the mean.

Roger Sweeny writes:

In our post-Soviet age, fortunately, socialism has become extremely morally implausible to almost everyone.

True, few people claim to believe, "1. The government has a right to use the nation's resources however it wishes."

However, lots of people do believe, "1a. The government has a right to use the nation's resources however it wishes, as long as people like me make those decisions.

Few will come right out and say it ...

Thomas Boyle writes:

"The government has a right to use the nation's resources however it wishes" isn't necessarily socialist. It is statist. Socialism is one type of statism, but so is traditional European monarchy. In this view, "private property" within a country is simply shorthand for a perpetual lease subject to the country's terms and conditions. Indeed, this is exactly the same view that led to the term "real estate" (royal estate) in reference to assets tied to land.

It's even consistent with libertarianism, if you simply view the government as the private owner of a mixed-use property called a "country". In this view, the occupants of the country are tenants, and are free to leave if they wish (although, weirdly, most other country owners won't let them in - a fact that suggests the owners are colluding to constrain migration, probably both to limit the poor from coming in to claim benefits, and to limit the middle class from using the threat of exit to improve their bargaining position vis a vis taxes and benefits).

egd writes:

I don't think I've ever seen a conservative make the "trespass" case as anything more than rhetoric. It is not a alleged that illegal immigration is a trespass, rather that illegal immigration is like a trespass.

tommy writes:

To paraphrase E.O. Wilson, "Marx had the right idea, he just picked the wrong species." Marxism is a better match for ants, bees, or naked mole rats than it is social primates. There is too much intra-group competition to make Marxism feasible among humans.

The same could be said for libertarians. They should have picked cougars or bears or other creatures that live alone or with offspring and that have a simple idea of territory. There is too much of a demand for cohesion and a shared moral space in human life to make all out libertarianism feasible among humans.

You'd think a guy who wrote the "The Myth of the Rational Voter" would understand that the emotional life and cognitive biases of humans aren't likely random, but an adaptive product of evolution, and they cannot be safely be ignored. It appears that libertarians, likes Marxists, still haven't come to grips with the fact that we're, in fact, social primates and that excessively spergish, legalistic libertarianism is not highly congruent with a communal human nature.

MikeDC writes:

Bedarz is exactly right. I'd put it slightly differently, but in essence our property rights are those we mutually recognize with other people.

This system is perfectly compatible with libertarian thought. It doesn't mean the government owns and distributes property rights. It means our rights are established and protected by mutual agreement.

Whether it's wise or not, certainly a libertarian should think we should have the right to make an agreement with others about when we'll come to each others' aid and what are our freedoms within the scope of our agreement.

Ownership always comes with limits, but that doesn't mean I'm not the "true owner" of something. That's utterly simplistic.

Illegal immigration, then, isn't a matter of tresspass, it's a matter of jurisdiction and contract. The illegal immigrant isn't a party to the agreement between the citizens of a country. What's more, the illegal immigrant has willfully ignored the provided means of becoming a party to that agreement.

darjen writes:

I don't agree with the comments arguing that immigration restrictions are okay because government owns the roads. That won't persuade many libertarians like Bryan. All it does is bring up the question of why should the government own our roads? See Walter Block's books and articles, for example.

ladderff writes:

Bryan Caplan is very good at arguing for open borders. Just not today. Glad to see the commenters here are on top of it.

William Barghest writes:

It's not just socialism, in any sovereigntist theory of government, --fascism, feudalism, monarchy - the state is the real owner of all property within its zone of military control.

If you think that anarchy or libertarianism does not achieve objectively better governance you could make exactly the same argument as you,

1) Each person has the right to do whatever they want with their property.

2) In case of doubt see #1

But why should the point be to decide who has the proper right to do a particular thing and then assume that good things happen as long as these rights are not infringed? Should not the purpose be to understand which governance models result in objectively better outcomes?

Phil writes:

The essence of property rights is the right to exclude. This is where the concept of trespass comes from. But since our property laws evolved from the feudal system, no one except the sovereign has a complete set of property rights. If the government wants to declare eminent domain and take your property, they can. Easement for a new sewer line? You lose. Want to exclude a person of color from your shop because you are a racist, you cannot. Property rights are not binary, they are best conceived as a bundle of rights. An owner has a lot, a landlord or tenant has fewer. The rules governing what you can and cannot do with those rights are in laws that are constitutionally determined. That's not socialism, it is an organized society.

Illegal immigration can be considered trespass because the government did not consent to them crossing the border. Just as you can decide who can and cannot cross the threshold to your home (and you have that right whether you own or rent), the sovereign retains that right when it comes to the nation's borders. This is true regardless of the form of government.

Ted Levy writes:

Funniest unintended correct argument of the day: " the logic you use for the illegal immigrant can be applied to any crime short of coercion."

Jbob writes:

Bryan, this argument comes closest to the one I've been waiting to see you make for a while. Namely, that political borders are arbitrary lines drawn on maps by governments, having nothing to do with property owned by individuals. These lines ought to have zero bearing on who can travel, work, and live on either side of them.

If you're going to be an anarchist, then why not save yourself time and make the fundamental argument?

Kevin L writes:

Wow, lots of statist stuff here, but BK was most long-winded so I'll take on the challenge of responding to him:

People want to immigrate to rich countries because they have good institutions. It's much better to live under the laws and rule of the United States and its electorate, or Singapore and the PAP, than it is to live under most systems of governance.

It's not the geography, or just the skills of particular people one deals with on a day to day basis, that is most valuable to immigrants. The U.S. government was set up by Americans for themselves and their posterity, with procedures for regulating the admission and naturalization of additional citizens where this was the desire or interest of the existing citizenry.


You're confusing citizenship and residency. Or how do you explain why prior to the 20th century there was no such thing as passports? You might say that immigrants' children "dilute" the culture, but back in the day that used to be called racism.
What's so shocking about a polity deciding who gets the benefit created by living under its rule, especially when different entries may improve or damage that institutional quality, and may help or hurt the aims of the people who set up and sustain the institutions?

Now you're confusing majority rule with unanimous consent, and treating a nation of individuals as a single-minded body. The marginal person does not set up or sustain official institutions, and quite often the aims of those institutions are in direct conflict with the aims of the individual.

Pharmaceuticals are developed because governments use their monopoly of force to enforce patents, preventing willing makers of illegal knockoff drugs from employing willing workers to sell to willing customers. But without patents we wouldn't have the huge pharmaceutical formulary that we do, and a lot of people would be worse off.

The pharmaceutical patent trope - classic. How come this wasn't the case with Italy? They had weak patents for years and were a source of lots of innovation.

If the law sets limits on the fish that can be taken from a fishery, to prevent catastrophic overfishing destroying the resource, fisherman who fish without quotas have to be stopped by state force. Even if they employ willing workers and sell the fish to willing consumers.

Any attempt to solve a collective action problem has to deal with holdouts and those who would like to make a profit by violating the rules. But most of our wealth depends on such solutions.

Such solutions already apply to citizen and non-citizen alike. Unless all you can afford to the defense of immigration laws is a tautology, these last two paragraphs are irrelevant.

A libertarian or anarcho-capitalist extremist can condemn them all, or demand that the benefits exceed costs by ten times, as Bryan has suggested. That is a standard so demanding that it could destroy most of our prosperity: a policy that was responsible for 90% of GDP but inflicted costs of 12% in violation of libertarian norms would fail Bryan's test. And much of our wealth is built up from the accumulation of many non-libertarian policies with sub-10x gains.

Where do you get the idea that some non-libertarian policies produce 90% of GDP? Classical economists have been saying for centuries that more liberty precisely leads to more prosperity. Most people are too economically illiterate to care about that, so Bryan is appealing to people who (rightly) condemn socialism, and attempting to show that anti-immigration policies rest upon the same assumptions as a socialist state.

But for the rest of us, if states with the power to enact laws that affect holdouts, including immigration laws, make most of the residents much better off while leaving plenty of land elsewhere (which is comparably good in respects other than the very government institutions being called into question) they have a pretty good case to justify their existence and authority.

Again, you're assuming that immigrants who are not here under the auspices of the state are holdouts, and the only way to say that is to tautologically state that they are illegal because illegal immigration is illegal. If not, why don't we strip the citizenship and legal residency away from anyone who is a "holdout", as I'm sure many citizens are. And if you argue that illegal immigrants are holdouts because they don't pay taxes (even though they pay sales taxes, property taxes through rent, and presumably up their employers' profits and corporate tax bill, as well as increasing capital gains for investors), remember it's the federal government who prevents them from paying taxes by refusing to recognize them.

Now, one could move away from the libertarian deontology and argue about facts and consequences, and whether the world as a whole or various electorates making decisions would be better off under different institutional arrangements (which I would be more interested in), but this appeal to libertarian axiom is not very compelling.

I didn't read this as an appeal to libertarian deontology at all, but rather an appeal to anti-socialist sentiment.

P.S., to those who bring up the "they use the roads!" argument, remember that roads are supposedly paid for by gas taxes and local property taxes, which even illegal immigrants pay for by buying gas and paying rent.

Sonic Charmer writes:

I wonder, does Bryan pay his property taxes? Why? Doesn't he "OWN" his house and land? What gives a local or state government the right to charge him (effectively) rent on something he "OWNS"?

Once again, the (this type of) open-borders advocate is incapable of imagining or acknowledging the possibility of multiple, overlapping layers of (something akin to) 'ownership'. It's all-or-nothing. If I think the government is supposed to act in trust as sovereign over the interior of the nation for certain specific, limited purposes (such as, oh I don't know, defending the interior of the borders against external attack), I am also required to go all the way to infinity and think that it 'has a right to use the nation's resources however it wishes'. There is absolutely nothing imaginable in between granting certain limited powers intended for the good of the polity, and allowing the government to do whatever it wishes in an absolute, totalitarian sense.

This is, indeed, a 3 a.m. dorm room type of argument.

P.S. By the way, while I haven't looked this up, has anyone considered that it's probably the case that the U.S. Government does in fact literally own a fair amount (most? all?) of the actual property buttressing the border, in which case illegal immigrants (i.e. people who by definition are traversing such land without the landowner's - the U.S. Government's - permission) literally are trespassing, socialist regime or not? But that's beside the point here...

Jeff writes:
There's really only one way: If the government - and not landlords, employers, and merchants - is the true owner of the nation's homes, businesses, and stores. If the government is the legitimate owner of all the property in the nation, then and only then do you become a trespasser simply by entering any piece of property in the nation without the government's consent.

The name for the view that government (or "the people" if you prefer) rightfully owns everything, of course, is socialism.

No it isn't. What you have discovered is merely what the rest of us non-anarcho-capitalists call sovereignty. A sovereign entity can recognize private rights in certain property while at the same time maintaining restrictions on how that property can be utilized. It is able to do this because the title holder is reliant on the sovereign entity to enforce his claim on the property. The relevant questions, it seems to me, when it comes to such restrictions are a)are they morally justified and b)are they optimal from a public policy standpoint (ie, do they achieve some desirable end and do so at the minimum cost as compared to alternative policies)?

We know where you stand on these questions, of course. I, of course, disagree. But calling people who do not share this perspective with you socialists is a)wrongheaded and b)not likely to really convince anyone who doesn't already agree with you.

Consider the period from the 1920's to 1960's, when immigration was drastically curtailed in the U.S. What do you suppose was a more pleasant place to live...the United States, or an actual socialist country like Soviet Russia?

Mark H writes:

Nobody is arguing that immigrants are trespassing when they go to work. Plenty of people argue that they are trespassing when they use public resources like roads or schools.

I generally agree with you on immigration, but it is pointless to dispute an allegation that nobody is making. I wouldn't have expected to see such an absurd straw-man argument in this space.

Nathan Smith writes:

I'll jump in to defend Bryan Caplan against Vipul Naik. Yes, if you establish that government doesn't own all the factories, shops, and houses in the country, and therefore has no right to prohibit immigrants from entering them, you could still claim that the government owns the streets and open spaces, and can prohibit immigrants from using them. This is a kind of loophole in the case for open borders which restrictionists can exploit, and my theory of streets which Vipul referenced closes that loophole. (In brief: streets aren't government property, rather they're zones where overlapping private transit rights exclude development for purposes inconsistent with transit but do not justify the exclusion of anyone who is only using them for transit. That's why segregation is wrong, and also why the government doesn't have a completely arbitrary right to regulate migration. What it has instead is a right to prevent armed invasion, because that threatens its citizens' human and property rights.)

But if you did try to close the borders via the "government owns the streets" loophole, it seems you'd have to have a different system of laws than today's governments do. Property that was on the border or the coastline would be a free-access zone for immigrants. Immigrants who dropped out of helicopters or something would be all right too. (When I go flying in my uncle's power parachute, I don't need permission from the owners of the land we fly over, even when we're flying pretty low.) They could then go from one patch to another of private land, with the owners' permission. It would be entirely legal to establish internal charter cities with fly-in access for foreigners, say on large ranches in Texas or Montana. Immigrants wouldn't be allowed to leave the property except by plane. We'd also need to establish WHICH roads were owned by WHICH levels of government. Roads built by a local government with local tax revenues would be owned by the local government, and the federal government would have no right to prevent immigrants from using those. Sometimes, if immigrants not authorized to use federal roads were found in places they could not have arrived at except by using these roads, the federal government might be justified in arresting them even on private land. It might even be justified in prosecuting employers who knowingly abetted them in trespassing on federal land. But very often it could not be established whether immigrants not authorized to use federal land had done so-- even if they in fact did so habitually-- so many cases would have to be dropped.

Of course, I think the government does not own the roads. I believe my theory of streets. But that's not a huge hole in Caplan's argument. "Government owns the streets" could justify *some* sort of migration control, but nothing like what we have today.

Nathan Smith writes:

I'll also defend Bryan against the charges that what he's really talking about is "statism" or "sovereignty." If sovereignty is well defined, that definition is the work of Thomas Hobbes in Leviathan, and the claim is basically that the government can do anything it wants. Hobbes' argument is ingenious if wildly unpersuasive as a mere argument. It alienated readers, yet it is influential because it flatters the time-old human bias in favor of might makes right, which gets much more credence than it deserves because it pays to flatter the powerful. How likely would a courtier who says, "No, your Majesty, you do not have a right to do anything you like in the kingdom" be to become prime minister, or for that matter to keep his head on his shoulders? By the same token, how would a democratic politician who says, "No, American people, you can't just do anything you like with the country" fare in an election. But sovereignty recognizes no effectual limits on what government can do. As MikeP said a while ago, it could order everyone whose last name ends in a vowel to be executed. According to Hobbes, the condemned would have a right to resist, but no one else would have a right to come to their aid, and the sovereign would have a right to do this, because he is still in the state of nature and has a right to everything. And when claims of "sovereignty" are made, e.g., in international relations, it is generally just this right to do anything they like which is being defended. Thus, the US was "not allowed" to overthrow Saddam because it violated "Iraq's" "sovereignty," as if in Hobbesian fashion the Iraqi people had authorized a sovereign, even if only because of fear, permanently and justly forfeiting their liberty, and he embodied a "real unity of them all," and how oppressive and brutal his regime was is irrelevant.

I suppose it wouldn't be too much of an exaggeration to say that sovereignty is the root of all evil.

Anyway, when immigration restrictionists make arguments based on *trespassing,* they are not appealing to any such utterly depraved notion as sovereignty. Rather, they are appealing to the much more respectable notion of property rights. They are saying that "we" have property rights in "the nation," and "they" are invading "our" property rights by entering it without "our" permission. This suggests a certain just proportionality. For example, whereas Hobbes would have no objection to illegal immigrants being shot on sight, a restrictionist who considers illegal immigration "trespassing" would presume endorse only the kinds of penalties usually associated with trespassing. So Bryan is going after this concept of collective ownership. The rebuttal is tailored to the argument it is rebutting.

To call the US government "sovereign" is an insult it does not deserve. It has indeed borrowed some of the language and practices of sovereignty from other nations, perhaps even initiated a few of its own, but it still has some vestigial reverence for natural rights and limited government. It is a bit like the court of King Ahab in the Bible, worshipping Baal, yet also willing to give Elijah a hearing.

Simone Simonini writes:

The government does hold allodial title over all land. You don't have to be a socialist to agree.

Ken B writes:

I believe as a matter of law and language I might be said to trespass on public land. This vitiates BC's entire argument-from-narrow-meaning.

Philippe Belanger writes:

So that as long as the state owns a piece of land on the border (highways inculded) free immigration is inefficient, because the owners of that land (every american) have not voluntarily agreed to letting the immigrants enter.

BZ writes:

Fascinating list of responses. If I read it right, they can be divided into:

1. Yea, we're socialists, so what?
2. Wait, OK, then we're only talking about the governments property. Let's talk about that instead.

darjen writes:

Ken B - no, it doesn't vitiate Bryan. Public ownership of land is a basic principle of socialism.

Ken B writes:

@darjen: No. BC's argument is that since trespass only applies to privately owned land, etc. The etc is his particular notion of what's involved in re-defining trespass to make it cover public land. That particular notion is not in fact required. Trespass already covers public land.

Trespass is about a right of entry not identical with ownership. If I lease your land I can enter it even if you no longer wish me to; I can even debar you.

andy writes:

I thought the state is supposed to have a monopoly on the power in a given teritory. That doesn't mean it is the owner, right? If I am the strongest in my community, that doesn't mean I am the owner of everything. It depends on how I choose to use/abuse my power. It seems to me the commentors who say that the state is in fact the owner of everthing are in fact saying, that it is not abuse of power, if the government does anything; that the strongest one never can abuse it's power, because he is the law. The opposing (libertarian?) view is that the government can either act as a protector of the law or as an abuser. If it can protect the low then even for government there are some limits as to what is appropriate and what isn't. And the article argues that limiting immigrants is over the limits.

As for government being an owner of all land - I think Roderick Long somewhere addressed this:
I think that the person who makes this argument is already assuming that the
government has some legitimate jurisdiction over this territory. And then they say, well,
now, anyone who is in the territory is therefore agreeing to the prevailing rules. But
they’re assuming the very thing they’re trying to prove – namely that this jurisdiction
over the territory is legitimate. If it’s not, then the government is just one more group of
people living in this broad general geographical territory. But I’ve got my property, and
exactly what their arrangements are I don’t know, but here I am in my property and they
don’t own it – at least they haven’t given me any argument that they do – and so, the fact that I am living in “this country” means I am living in a certain geographical region that they have certain pretensions over – but the question is whether those pretensions are legitimate. You can’t assume it as a means to proving it.

This was about social contract, but I think it applies to government owning everything rather well.

darjen writes:

@Ken B: You're still arguing that illegal immigrants are trespassing on public land. Perhaps if BC wanted to be more airtight, he would have included public roads and parks in his analysis. But in any case, if the government owns land and bars immigrants from entering, based on trespass, that is an argument rooted in socialism. If government's ownership of the land is illegitimate, then so are the restrictions that government places on immigrants. It is a violation of my right as a property owner to rent my house or hire someone from another country.

tommy writes:

Yes, you are legally entitled to have recently released ex-convicts from San Quentin over at your house every weekend for barbecues just because you like to hang out with guys you perceive as tough and cool. If you should exercise such poor judgment, then don't be surprised if you get your teeth knocked or you get a bullet in your head if one of your dinner guests decides to rape your neighbor's daughter. It may not be right and it's certainly not legal, but get a clue.

And don't be too surprised if other people in your neighborhood, on getting wind of your hobby, would act to prevent your weekend gatherings, their possible outcome, and the subsequent retaliation by any legal means afforded to them, even if rather underhanded. Surprisingly, social primates seem to believe that there are some risks and conflicts taken by individuals on behalf of the entire community that are worth preventing when the perceived benefit belongs to the individual alone, and especially when the benefit appears very small or like no benefit at all. This may not be in line with austere ideological tendencies, but it makes a lot of sense from an evolutionary perspective, and it wasn't the relentless pursuit of untainted ideology that made our species or built civilization. Rather than pursue libertarian ideals to an extreme from which humans naturally shy away, might it not be better to formulate a more pragmatic program that argues the benefits of libertarianism and is sustainable for more than the blink of an eye?

If not accepting an immigration stance that would invariably shift the country in the direction of California makes one a socialist, then I plead guilty.

Zack Parsons writes:

[Comment removed for supplying false email address and for multiple policy violations.--Econlib Ed.]

MikeP writes:

Of course, I think the government does not own the roads. I believe my theory of streets. But that's not a huge hole in Caplan's argument. "Government owns the streets" could justify *some* sort of migration control, but nothing like what we have today.

The way I view it is that government owns the improvements it makes to roads. But the roads -- or at least some subset of roads wholly connected to all accessible property -- are rights of way and are as such unowned commons.

It is longstanding common law that property comes with well defined rights of way. The government cannot abrogate those rights of way solely because it chooses to claim the right of way as its road or to improve the road. To do so would be to render property rights virtually meaningless.

So the government cannot legitimately prohibit travel on the road, but it can (should!) charge for the improvements it makes to the road. Considering the monopoly power the government is claiming in improving a right of way, this charge would of course need to be reasonable and fairly applied.

Phil C. writes:

It is interesting the original post chose to frame this as trespass. Trespass is a strict liability offense - if you are on the land of another without privilege or permission, you have trespassed. Intent and effect are immaterial. So it matters not if the trespasser is there to bestow a benefit on the possessor of the land; without permission, the trespasser is in the wrong.

If I am having a party and 20 people are in my house by invitation and they want guest X to come join the party because guest X intends to give everyone $100 bills, if I do not consent, guest X is a trespasser. Do I need to follow the will of my guests? Not if I have reasons to exclude X. Presumably, if I am a rational actor, those reasons should be worth more than the good X's presence would bestow.

As the sole agent with rights to grant permission to cross the border, if the government does not grant permission (through visas or other tools), the illegal immigrant is in the wrong, regardless of how much good he is for the economy and regardless of how much the others who are there legitimately want him to come. If we really think X's presence is for the best, we need to convince the guy at the door to let him in. Calling him names (Socialist) is not very helpful.


On a tangential point, Nathan Smith wrote:

When I go flying in my uncle's power parachute, I don't need permission from the owners of the land we fly over, even when we're flying pretty low.

Yes, you do. One can trespass over or under the property of another. Stepping foot onto the surface of the land is not an exclusive form of trespass. How high becomes the point of dispute: for public policy reasons, aircraft can fly thousands of feet up, but a remote control helicopter at 15 feet is trespass. Your parachute... it depends.

tommy writes:

Forget the public infrastructure argument, that's an obvious objection, lets restate the libertarian case: if your next-door neighbor wants to synthesize and store a few tons of explosives, highly sensitive or otherwise, in his house, and he's got reasonable hazardous waste disposal and ventilation protocols in place so that you're not harmed in the event it all goes as planned, whose rights is he infringing upon? It's his house, damn it!

I suppose only a socialist could argue that society ought to prevent such a risk. (We must, of course, exclude any middle position between libertarian and socialist as ideologically unsound, as there is nothing more important than maintaining such purity.) Besides, if it all goes wrong, and you don't make it, your estate can always file a lawsuit so no big deal.

Yet, sadly, social primates are, for reasons we can't begin to fathom, big into this collective risk mitigation stuff. It's just not very rational.

Arthur_500 writes:

I think your fundamental base is incorrect. the constitution of the US protects the individual rights of its citizens. Therefore, it is the basic requirement of the government to secure the borders from invasion.

Not all invasions are military in nature.

Therefore, the idea of illegal immigration is the government protecting its citizens from invasion which is the basic purpose of government. While this may look like the government owns the property and allows each of us to use it as the government sees fit, in reality it is a matter of perspective.

Those who want Socialism/ communism see the government as doling out privilege while those who actually read the Constitution see it as protecting the borders.

"By the way, Bryan, how has your theory that illegal immigration will just make voters more libertarian been holding up over the last week? Any new evidence?"

A few months ago, I said that the decline in immigration might put Republicans in trouble.

Nathan Smith writes:

re: "Illegal immigration, then, isn't a matter of tresspass, it's a matter of jurisdiction and contract. The illegal immigrant isn't a party to the agreement between the citizens of a country. What's more, the illegal immigrant has willfully ignored the provided means of becoming a party to that agreement."

Fascinating. This commenter believes that a right to migrate already exists in current law, that "means of becoming a party to the contract" have been "provided." In fact, of course, states insists that the right to grant or deny visas is discretionary, and the US government rejects most visa applications. Illegal immigrants usually had no prospect of legal immigration. But I love this stuff because it's evidence that at a popular level, a lot of people share the moral intuitions of open borders advocates, and are simply ignorant of the facts. If the government did, in fact, recognize a right to migrate, merely requesting that people follow a process for the benefit of its own record-keeping and policy-planning, then the case for open borders would be much weakened. If a lot of people hold beliefs like this, that makes open borders advocates' jobs easier. All they need to do is show that most people are excluded by birth from US territory, and critics will acknowledge the injustice of this and embrace radical immigration reform.

By the way, the social contract argument does not, strictly speaking, work. Illegal immigrants are not a party to the US social contract, and therefore are not bound by its laws. They are bound by natural law, and cannot justly violate the persons or property of US natives, but, to a first approximation, they do nothing wrong by simply being in the country. They may do wrong if they are frequently require to lie about their status. That becomes a delicate question.

guthrie writes:

'Say what you will about national socialism, at least there's an ethos...'

MikeDC writes:

@ Nathan Smith
Careful. I did not claim a there is a right to migrate in the current law, nor do I think there should be one.

I'm neither ignorant of the reality that this process is ridiculously complex, expensive, arbitrary, and stupid, nor opposed to increasing immigration and making it more rational.

However, I'm quite sure I'm in the minority in my views. But, back to the essential point. If we want a free government, then there cannot be a "right to migrate" because a free government is one in which its membership voluntarily agree (by as close to the unanimity rule as possible). By definition, it must have discretion, or it cannot be free.

Now, I agree that illegal immigrants, not being party to the US social contract, do not do anything wrong simply by being here. But, if their ultimate aim in being here is to become a part of the society, thumbing one's nose at its laws is 1) not a good way to start and 2) ample reason for said society to exercise its discretion to not allow that person in.

While I'm not a believer in natural law, I think your point is well stated that. If someone is putting themselves in a situation that frequently requires them to lie, and would be at odds with the laws and procedures of the society they want to be a part of, that's a reason for the society to exercise care, if not discretion, in allowing that person in.

Insight writes:

One could make the argument that the government owns the land "at the border" of the country (say a "strip" one millimeter wide). Then anyone who crosses that land without permission has at that moment committed a tresspass, regardless of what may happen later between the immigrant and their landlord, etc.

Nathan Smith writes:

@ MikeDC

re: "If we want a free government, then there cannot be a 'right to migrate' because a free government is one in which its membership voluntarily agree (by as close to the unanimity rule as possible). By definition, it must have discretion, or it cannot be free."

No. Think about the terms of the agreement. In Lockean terms, it might be "I agree to surrender to this new state we are making the right to avenge injuries which I would ordinarily possess by natural law, if you also agree to surrender the same right to the state." The state has territorial jurisdiction, in the sense that it undertakes to protect its citizens mainly as long as they are present within a particular territory. For this purpose it may seek to establish a monopoly of force within this territory.

None of this implies that the state must or justly can exercise discretion as regards to who is admitted to the territory. Those who enter the territory of the state, provided they remain on roads/open space and/or private land with the owner's consent, do not violate anyone's rights, so there is no occasion for the state to intervene in defense of, or to avenge the violation of, its citizens' rights. At any rate, there is no logical problem with the establishment of a social contract of this kind, which simply does not invest the government with power to exclude foreigners from its territory. Nor is it clear how a social contract which *did* thus authorize the government to do this could be just. I can delegate to the state my right to avenge injuries against myself because I possess that right in natural law. I cannot delegate to the state the right to exclude foreigners from the territory of the United States because I did not have that right in natural law. Neither did anyone else have it. Therefore no one can delegate it to the state. Therefore the state does not have such a right, either.

And once again, you cannot blame illegal immigrants for "thumbing their nose at [US] laws" when no process by which they could have been admitted legally is available. The connotation of DISRESPECT for US laws is particularly inapt. Your original argument had some force ASSUMING you were ignorant of the fact that a right to migrate does not exist in current law. If you're aware that many or most people are permanently excluded from legal immigration to the US based on the circumstances of their birth, then it makes no sense to blame them for not following a legal immigration process which was not available to them. Given that US society has offered amnesties in the past, entering without permission is quite a reasonable way for people to enter. It's almost surely the best chance that a lot of people have to become Americans. It's not a reason for us not to let them in; on the contrary, we act unjustly by failing to do so.

Concerning the issue of illegal immigrants needing to lie, some of them probably don't. If you come here, work for cash only, and mingle in your own community, you may never need to tell any lies. If you do tell lies, the seriousness of the offense may vary. Using a fake Social Security card strikes me as an offense of similar magnitude to checking the box on a contract saying, "I have read the terms of the agreement" when you really didn't: the statement is false, but it's a lie told to a system rather than a person. What if you say, "Here's my Social Security card, but it's fake" and your boss says, "That's OK, we just need a number to enter into the system." Your boss is not deceived. Maybe no one in the system is deceived exactly: they know this sort of thing happens, just like the lawyers who put "I have read the terms..." on the site know that most people won't.

Peter writes:

"It is interesting the original post chose to frame this as trespass. Trespass is a strict liability offense - if you are on the land of another without privilege or permission, you have trespassed. Intent and effect are immaterial. So it matters not if the trespasser is there to bestow a benefit on the possessor of the land; without permission, the trespasser is in the wrong."

Try that one in court sometime when the police stick a camera on your property (but outside the curtilage) or you ask the prosecutor to bring criminal trespass charges against the girl scout who knocks on your door and/or the police who chases somebody on foot across your front yard.

Paul writes:

I am very confused about what natural law means. The state of nature is a war of all against all. So in a state of nature, I can't see what would be considered unjust; how could it be anything other than a question of force? I don't understand what rights would be excluded to me in a state of nature. If I feel that any action by another is injurious to me, don't I, in a state of nature, have the right to avenge that action, regardless any actual damages?

Also, @MikeDC

"According to Hobbes, the condemned would have a right to resist, but no one else would have a right to come to their aid, and the sovereign would have a right to do this, because he is still in the state of nature and has a right to everything."

The categories don't really match up well with that case. Insofar as a subject of a sovereign is in rebellion, are they actually a subject, or are they actually in a state of nature again? If they are a subject, then they are in the wrong. But if they aren't, then the laws of nature apply to them, which is really to say the law of all against all. But how do we know which state they are in, except after the fact from whether their rebellion is successful?

Evan writes:

@Steve Sailer

By the way, Bryan, how has your theory that illegal immigration will just make voters more libertarian been holding up over the last week? Any new evidence?

Obama won by a lower percentage of the popular vote than he did in 2008. The Democrats also performed less well in congressional elections than they did in 2008. Could this be for reasons unrelated to illegal immigration? Maybe. But it's some small bit of evidence.

Also, I'm pretty sure that immigration was one of the big issues the Republicans focused on when they won big in 2010. True, they focused on it in an ugly and restrictionist manner. But if the point we're trying to establish is that the presence of immigrant populations turns voters rightward, then it shouldn't matter whether the voters turn into low-quality or high-quality right wingers.

So actually yes, it could be argued that there is some new evidence for Bryan's theory.

@tommy

The same could be said for libertarians. They should have picked cougars or bears or other creatures that live alone or with offspring and that have a simple idea of territory. There is too much of a demand for cohesion and a shared moral space in human life to make all out libertarianism feasible among humans.

Very few libertarians, except for the most extreme Objectivists, disagree with you. The majority of libertarians believe that various types of group interaction and cohesion are positive things. What they don't approve of is making the government the primary institution responsible for maintaining these positive things.

You are actually making another common socialist fallacy, equivocating opposing government enforcement and promotion of a good with opposing a good's existence. Socialist and social democrats frequently claim that libertarians and conservatives are heartless monsters. The justification for their claim is that since libertarians and conservatives oppose government programs for the poor and unlucky, they must want those people to die. Libertarians and conservatives protest that they support various non-governmental ways of addressing these problems, such as private charity. However, socialists typically ignore these protests. They cannot comprehend how one can simultaneously believe something is a good thing, and oppose the government doing it.

@Sonic Charmer

I wonder, does Bryan pay his property taxes? Why? Doesn't he "OWN" his house and land? What gives a local or state government the right to charge him (effectively) rent on something he "OWNS"?

Bryan has stated in the past that he pays his taxes out of fear of punishment by the IRS, not because he thinks they own his house (relevant passage is in point 1 of the linked post).

@Arthur_500

Not all invasions are military in nature.

Yes they are. Using the term "invasion" to refer to anything else is what Thomas Sowell called "verbal inflation."

Referring to illegal immigration as either "trespassing" or an "invasion" are both forms of the Noncentral Fallacy - the worst argument in the world. This argument essentially goes: "X is in a category whose archetypal member gives us a certain emotional reaction. Therefore, we should apply that emotional reaction to X, even X differs from the archetypal member in many important ways." The problems with such an argument are obvious.

ColRebSez writes:

I rarely hear of "trespass" being used in terms of immigration, but I would point out that all property is held of the sovereign and subject to the laws of the sovereign. In the United States "We the People" are the sovereign.

There is, inherent with the initial grant of the property, a covenant to use the property in a manner that is consistent with the laws of the sovereign, and should grantee fail to do so grantor may take and reenter the property or otherwise enforce its rights.

A better solution would be to build border fences, identify and expel all illegal immigrants and not waste any more ink or keystrokes arguing over this.

Dunnyveg writes:

"To trespass is to enter a piece of land without the owner's consent. What should we infer, then, when people argue that illegal immigrants are guilty of trespassing?"

The above is correct, and does apply to the United States. The US is a republic, which comes from two Latin words, res and publica, meaning thing of the people. In other words, the US belongs to its citizens. As such, we have the right to admit who we want in our country the same as we have the right to admit who we want into our homes. It simply blows my mind that Americans have let themselves be convinced they have no right to their own country.

Svigor writes:

To trespass is to enter a piece of land without the owner's consent. What should we infer, then, when people argue that illegal immigrants are guilty of trespassing?

I know what we should infer from your opening salvo, here: that you're going to delve into legalism and semantics. You're going to take an analogy too far. And then maybe play dumb when we re-phrase "trespass" into "national trespass."

At least this is how things appear on the surface. How then could illegal immigration constitute trespassing, surface facts notwithstanding?

There's really only one way: If the government - and not landlords, employers, and merchants - is the true owner of the nation's homes, businesses, and stores. If the government is the legitimate owner of all the property in the nation, then and only then do you become a trespasser simply by entering any piece of property in the nation without the government's consent.

Welcome to real life. If you don't pay property taxes on your real estate, the gov't will take it from you. Essentially, if you fail to pay the rent, the landlord repossesses it.

If Caplan's asking me if I'd prefer National Socialism to his or his supporters' version of "libertarianism," the answer is a resounding "yes": sane people prefer National Socialism to suicide pacts.

Svigor writes:

It simply blows my mind that Americans have let themselves be convinced they have no right to their own country.

Indeed. I don't think such people deserve a country. I think we need to divest ourselves from them ASAP.

TimothySS writes:

Do I really OWN my own home? Why must I pay for the right to occupy it? How long would I last in MY own home if I refused to pay taxes on it? The government owns everything, you are just a renter. You are able to reduce your rent by paying off your mortgage.

MikeDC writes:

@ Nathan
I disagree because I don't see the logic in calling what we'd have in a state of nature "rights" in the Lockean sense. In economics terms, I think it's more accurate to say our agreement with another is what brings a right into existence than to say we're negotiating away our endowment in some sort of bargain. To follow the property meme, we're creating a piece of intangible property, not trading it away for insurance.

The upshot of this is that the folks who negotiate themselves into a citizenship/state arrangement don't have to completely or permanently surrender anything. The terms of the deal could take on a wide variety of forms, no? Independent of natural law. So, to get to the crux of the matter...

I can delegate to the state my right to avenge injuries against myself because I possess that right in natural law. I cannot delegate to the state the right to exclude foreigners from the territory of the United States because I did not have that right in natural law. Neither did anyone else have it. Therefore no one can delegate it to the state. Therefore the state does not have such a right, either.

... and say that if there is no natural law or rights, what we, as citizens, create is recognition of each other's claims to property. But what about folks that aren't party to the agreement? No, we don't have a natural right to exclude them, but we don't have anything at all telling us how we should treat them. We have an ability to recognize rights in them, and they have an ability to recognize rights in us. But that mutual recognition, that agreement, needs to actually happen. Without it, we're not endowed with anything.

Now we need to think about what sort of rights we recognize in each other. Among those most everyone thinks essential is the right to associate and enter into agreements freely, and since our rights are coming into being only through association and agreement in the first place. So it defies logic that the seminal act in forming a society would be surrendering a right you're busy bringing into a meaningful existence.

If you're aware that many or most people are permanently excluded from legal immigration to the US based on the circumstances of their birth, then it makes no sense to blame them for not following a legal immigration process which was not available to them.

A legal process for seeking admission to the "club" is available. That does not, however, mean the outcome of that process must go in their favor and the group must accept them. I'm excluded from all sorts of groups based on the circumstances of my birth, but it doesn't mean those groups must include me, or that I can legally force them to admit me into membership of the group.

That's the unfortunate thing about freedom, isn't it? It's great, but people routinely exercise it in terrible, mindless ways. It might defy logic to you and I that most societies are the functional equivalent of the No-Homers Club, but to deny them that right means denying us the right to (potentially) do something good.

jonathan writes:

Does this hypothetical illegal immigrant pay for his health care, his kid's schooling, etc., or do I as a taxpaying citizen pay for it? How is forcing me to pay for illegal immigrants libertarian?

Steve Sailer writes:

I see only one mention in the comments of the word "externalities," which is obviously relevant to this issue.

Bedarz Iliaci writes:

Sovereignty is Pure Assertion and the illegal immigrant, while not doing anything wrong simply, has challenged the Sovereign Assertion, the same as any other invader.

It is entirely just for a Sovereign to respond to any challenge to its Assertion over its territory.

However, the Catholic Church insists that immigrants respect the laws of the host country.
The legal immigrant has, of course, not challenged the Host.

Bedarz Iliaci writes:

MikeDC,
If you start with Lockean premises, you end up with libertarianism and no nations.
That is, if individuals are prior to nations and societies are formed by contracts among free individuals then of course, it is possible to re-order any society to any extent for better individual fulfillment.

Only if. you reject the Lockean and Hobbesian premises, and start with the Nation or the Tribe, you get the conclusions that you want.
Otherwise, you will have to make an unprincipled exception in favor of Nation.

MikeDC writes:

Bedarz,
I should have specified more clearly. I don't reject the Lockean premise that we can contract ourselves into a society. I reject the Lockean premise of natural rights and that our ability to reach agreements with others is based on these rights.

I suppose I don't reject the much simpler Hobbesian premise (perhaps also found in Smith's Theory of Moral Sentiments if you read it closely) that we have a "right" to use our abilities to preserve ourselves, but I personally wouldn't call that a right as much as I'd call it a physical reality (or perhaps a "will to power" at the philosophical level).

Phil C. writes:

Re: Peter's response,

"It is interesting the original post chose to frame this as trespass. Trespass is a strict liability offense - if you are on the land of another without privilege or permission, you have trespassed. Intent and effect are immaterial. So it matters not if the trespasser is there to bestow a benefit on the possessor of the land; without permission, the trespasser is in the wrong."

Try that one in court sometime when the police stick a camera on your property (but outside the curtilage) or you ask the prosecutor to bring criminal trespass charges against the girl scout who knocks on your door and/or the police who chases somebody on foot across your front yard.

Those examples all fall under the privilege exception in my post.

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