Libertarianism and Immigration: A Reply to Michael Huemer

In previous posts I have challenged the idea that there are doctrinaire libertarian positions favoring an isolationist foreign policy (// and disfavoring the recognition of intellectual property rights (// I am now going to engage in a comparable exercise with respect to immigration, critiquing the notion that an “open borders” immigration policy is implied by basic libertarian principles governing property rights. I will use as my jumping off point Michael Huemer’s excellent recent essay on this subject, “Is There a Right to Immigrate?”, which is available here: Page references to Huemer’s essay are to this draft.

Huemer’s argumentative strategy is relatively simple. He starts with the observation that laws that exclude “ordinary, noncriminal migrants who wish to leave their country of origin for morally innocent reasons” (2) have three characteristics that mark them as prima facie rights violations. Specifically, these laws are coercive, restrictive and harmful to potential immigrants (3-4). Moreover, they require the agents of the state to “prevent those in need from satisfying their needs” (30).

Thus, those who favor the regulation of immigration cannot rely on the traditional philosophical distinction between the culpability involved in actually inflicting harm on others, and merely failing to take steps to prevent it. In light of the above considerations, one need not (says Huemer) accept any particular theory of justice to find such a policy disturbing, and accordingly the normative burden shifts to the defenders of regulation to articulate a persuasive justification for it. Huemer then considers various arguments that might be advanced in this regard, and finds them all wanting. I will focus initially on the one he calls “Club U.S.A.” (19-25).

This argument likens the U.S. (or for that matter any nation facing substantial immigration) to a private club, where the policies governing it are set through some sort of democratic process. If the analogy is apt, then even if individual members of the club desire to rent apartments to or employ non-members, their wishes may legitimately be forbidden if the rules of the organization do not permit such actions. But, as Huemer correctly points out, libertarians must reject this analogy because it would imply our consent to be bound by the will of the majority, wherever that might happen to take us, including the outermost reaches of the Nanny State (23-5).

Nevertheless, there are norms governing property usage, more congenial to libertarian values, which do not employ the “club” analogy and consent theory. I am referring here to the idea of externalities. While libertarians of all stripes regard property rights as having great stringency, none believe that such rights give owners carte blanch to conduct activities on their land that harm others. So, of course, one does not have the right to incinerate material on one’s property if in doing so you release toxins that are deadly to those downwind (in Chapter 6 of my book, Nozick’s Libertarian Project, I discuss a possible libertarian approach to regulating externalities of this sort).

Might unlimited immigration be reasonably likened to harmful externalities that may be regulated under traditional libertarian principles? Huemer does address this possibility, but does not focus on what I regard as the most serious negative consequences of open borders. In his discussion of the argument he labels “Cultural Preservation” (16-9), he notes that a number of philosophers have held that citizens of a particular state have a legitimate interest in preserving the distinctive culture of their community.

However, in what is probably the weakest part of his essay, Huemer conceptualizes the concern about the preservation of Western culture in terms of our attachment to Coke, McDonald’s and trashy Hollywood entertainment. He argues that these phenomena are so ubiquitous that we have nothing to worry about. Right; but I am not worried about losing my favorite fast food option. What I and most other libertarians concerned about immigration fear is the loss of our political culture and consequently our liberty.

Accordingly, when Huemer proceeds to argue that even the loss of more substantial elements of our culture would not justify restrictions on immigration, he still misses the mark. He uses as an example the possibility that many Buddhists might move into your neighborhood and thus change its character from mostly Christian to predominately Buddhist. Since, as he frames it, the Buddhists “do not coercively interfere with your practice of your own religion” (17), you are not justified in using force to try to exclude them from your community. Yes, but what if unrestricted immigration did endanger the rule of law in your jurisdiction? Huemer does not specifically address this issue.

I contend that under libertarian principles we do have a right to insist on the maintenance of the rule of law (as Hayek understood it), even the highly imperfect version we have here. And, this commitment potentially justifies the regulation of immigration. As I argue in my book, Robert Nozick built a convincing case for libertarian rights on the ethical foundation of respect for moral agency, and this agency can only express itself in a society that respects rights, including economic liberty. Accordingly, the libertarian worry about unlimited immigration is unlike Huemer’s Buddhist/Christian case.

Would unregulated immigration imperil or degrade the rule of law here? I believe that it is plausible to think so. Mexico, the source of most of our existing illegal immigration, cannot be said to enjoy the rule of law to this day. There is massive corruption and a great concentration of economic power through crony capitalism that is incompatible with this ideal. While it may be politically incorrect to say so, due to historical developments the political culture in Mexico is substantially different than our own. But Mexico is a virtual utopia in this regard when compared to many other parts of the world, where the state (with the full support of the populace) executes people for blasphemy and sorcery, and freedom of religion and conscience do not exist.

As previously noted, Huemer limits his claim of a right to immigrate to those who wish to do so for “morally innocent reasons.” The problem is that even the most intolerant and illiberal immigrants may come here for “morally innocent reasons.” They may seek economic opportunity, but they would also bring their intolerance and backwardness with them, just as they would retain other elements of their culture. Moreover, this potentially destructive influence may be felt whether or not these immigrants have the right to vote. Supposedly civilized European countries have experienced widespread violence, including even murder, directed against those perceived to have insulted Islam, and it makes no difference in this respect if the perpetrators also happen to be voters.

Having rebutted, I think, the presumption Huemer identifies in favor of open borders on the basis of our legitimate interest in regulating negative (political) externalities, we now face the question of defining the permissible scope of such regulation. Unfortunately, because there is no way to quantify the effect of immigration on political culture in the short run, and because in the long run it may be too late, there can be no simple, bright line answer. It does seem clear that a policy of zero or near zero immigration would be irrational and would violate the right of immigrants and U.S. citizens to enter into mutually advantageous arrangements. Beyond this, however, determining how much immigration should be permitted, who should be admitted, and from where, will depend on the good faith judgment of the political authorities.


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19 Responses to Libertarianism and Immigration: A Reply to Michael Huemer

  1. Simon says:

    I feel uneasy about this argument. Yes, I agree that those who cause externalities should pay their cost or negotiate a compromise with those they affect. But I think it is difficult to go from this to saying that governments have the right to control immigration. Of course, I agree that in current welfare states they do, because immigrants are a potential call on the rightful property of others, but Huemer is not talking about such a state and libertarians should address the ideal picture.

    It is interesting that the Dutch politician Pym Fortuyn (later assasinated) used a similar argument. Why should gay people in Rotterdam, becoming increasingly occupied by Muslim immigrants, be in danger of having their rights usurped by the democratic process? This seems correct insofar as it goes (other unpleasant views of Mr Fortuyn notwithstanding). But we are not talking about a state where the majoritarian process is to be allowed to countermand basic liberty rights, either.

    The thought seems to be that Mexicans (I appreciate that this is but an example), since they come from a state in which all sorts of nasty things happen, will somehow pollute the public space in the US. This seems to me to be rather dangerous. It seems to suggest that the part should be tarred with the sins of the whole – even though individual immigrants may be just as opposed to what happens in their homeland as are US citizens. Surely anyone should be judged after a crime has been committed, not presumed to be guilty before they’ve even arrived. Besides, even if the argument goes forward, it would presumably allow citizens of states on a par with the US free entry without restriction. It would be interesting to examine the obstacles that such a policy might encounter.

    The thought of being descended upon by hordes of poverty-stricken immigrants with different values to our own is bound to cause worry, but I’m not convinced that the argument being deployed will pass a libertarian test .

    • Mark Friedman says:

      Thanks for visiting and leaving this thoughtful comment. I too am a little uneasy with my argument, but I hold to it nonetheless. I would say first that Huemer is making a very strong claim, i.e. that all who would come here (to the U.S.) for “morally innocent reasons” have that right, provided they have secured a place to stay from a willing property owner. I do not believe that he limits this claim to ideal states, although he does limit his argument to a right to travel and reside here–not voting rights or social aid.

      He does concede at the end (section 7, titled “The Immigrant Flood and the Collapse of America”) that since he cannot predict the effect of unrestricted immigration, “it may be wise to move only gradually towards open borders.” But, the negative consequences he fears are not the same ones that trouble me. I also acknowledge that I cannot foresee the consequences of unlimited immigration, which might be benign, but I contend that the existing citizens of the U.S. have a right to the preservation of the rule of law, which is where I think I diverge from Huemer.

      For the reasons stated in the post I do not believe that only the paranoid or nativist should be worried about the effect on our political culture of open borders. I also do not believe that we are required to risk losing the rule of law, which is why I hold that we are entitled to shape the number and composition of the immigrant population. I do not contend that Mexicans are in any way “bad” people, or that they should be excluded from the pool of acceptable immigrants, but based on my study of Mexican history (see Chapter 5 of my book) I think it is undeniable that their political culture is much different than ours.

      So, in light of the risk presented, I think it is morally legitimate for the authorities to try to ensure that the overall population of immigrants generally share our core values. But with respect to immigration from our southern neighbor, this might only require regulating the process in such a way that we have a somewhat lower percentage of Mexicans than would be present under purely open borders.

  2. Tom Burroughes says:

    I just wanted to say how much I am impressed by this website and its driving philosophy. I am looking forward to when your book on Nozick comes out in hardback.

    • Mark Friedman says:

      Hi Tom,
      Your kind words are much apprecated. I think you mean paperback edition, which will be out in September. In the meantime, you might ask your local library to order a copy for your reading pleasure, since it can spread the high cost of the hardcover out over their entire user base. Thanks again.

    • Mark Friedman says:

      Hi Jake:
      Thanks for bringing Mr. Boudreaux’s essay to my attention. To answer your question, he (like Professor Huemer) does not address the danger I identify from open borders in my post. I am not worried about the spread of different cultures or radical ideas, but a surge in political violence that would destroy what we have left here of the rule of law. Although he does not discuss this specific objection to open borders, he does acknowledge that this is at heart a matter of empirical assumptions:

      I’m frequently accused of being an airy-fairy “unrealistic” ideologue for ignoring the cultural consequences of open immigration. (I don’t, by the way, ignore those prospective consequences. I consider them. And I conclude from that consideration that those prospective consequences are not remotely likely or severe enough to justify the actual oppressive government policy of preventing peaceful people from moving to wherever they wish and from associating with whomever they choose to associate.)

      I agree with him here, as I believe reasonable libertarians can reach different conclusions about the threat to liberty posed by unrestricted immigration. Please let me know if I missed the point of your question.

      • Jake says:

        First off, I want to say that I mostly agree with you, and I have to admit that I only skimmed his essay, but it sounds similar to things he’s said in the past about it. Anyway, i guess my main devil’s advocate points are that many people claim that even though Mexico’s government is deep in corruption and cronyism, many Mexicans that come here have strong religious beliefs, have tight families, and tend to be entrepreneurial, so they wouldn’t conflict with our political culture. Also, why do you think uncontrolled Mexican immigration will lead to political violence if you said you’re not trying to stop the spread of ideas?

        • Mark Friedman says:

          Hi Jake:
          Perhaps my OP wasn’t clear enough. My primary concern with open borders is the potential for violence committed by Islamic extremists against those perceived to have insulted Islam and Jews. We see this already in many major European cities. Even though Europe does not have open borders, it has permitted more immigration from Muslim-majority nations than we have. I would favor open borders with Mexico if this did not include welfare benefits and the vote.

          • Jake says:

            That makes sense. Would this be the same if people from the Middle East were only guest workers, or would they have to be green card holders?

  3. Mark Friedman says:

    I support the right of any person, from whatever country or region, to travel or work here, provided that their values are not in conflict with those required to sustain the highly imperfect version of the rule of law we now have. The question of how you screen visitors for this quality, within budgetary constraints, and whether they should get a green card or a work permit is beyond my expertise. My main point is simply that implementing open borders would ignore the threat I have identified.

    • Jake says:

      Actually now I’ve come across something that looks like what you are trying to advocate and I’m not sure if it’s constitutional,

      • Mark Friedman says:

        Thanks. As it happens, I’m a lawyer by training, and had 20 years of practice before I quit. But, here I am practicing moral/political philosophy, and so my primary concern is whether the sort of restriction on immigration we have discussed is consistent with libertarian principles. I think it is for the reasons I set forth.

        • Jake says:

          If I could make a request for an article, I think you should talk about the NSA, surveillance, the Fourth Amendment and libertarian principles.

        • Jake says:

          What I’m asking is do you think people should be kept out for their views and not just their actions?

          • Mark Friedman says:

            We’ve been over this ground quite a bit, so this will be my last comment on this subject. With respect to fundamentalist Muslims, I think there is a sufficiently great risk that their “views” will translate into violent “actions” that we are not required under libertarian principles to throw open our borders to them.

  4. I found your argument unconvincing. It requires using force against people who have committed no crimes.
    It is very disturbing to suggest punishing a factually innocent person for some attribute that you associate to the group. That hardly seems compatible with the “rule of law”.
    Saying that a person’s influence might dilute the rule of law is mere speculation and seems way below probable cause. By definition we already have laws for that.

    Following your argument, would you recommend violence against natives that support and spread controversial political ideas (anarchism, civil disobedience, self-defense against cops, communism, religious theories of justice, …)? (Doesn’t Huemer weaken the rule of law by questioning the government’s authority? Doesn’t Walter Block lionize smugglers and drug dealers in this Defending the Undefendable?)
    Would you prohibit natives from travelling to Mexico, trading with Mexico or exchanging ideas (books, radio, internet)? (They might become contaminated with those bad influences!)
    Would you prohibit people from Detroit moving to Texas (Detroit has such a culture of crime, doesn’t it)?

    • Mark Friedman says:

      Hi Julien:
      Thanks for stopping by, and for your comment. In my view, being a member of a community gives a person certain rights, such as the right not to be punished without due process, the right to enter into contracts with other members, and freedom of movement within the community’s boundaries. These rights rule out the type of things you describe at the end of your comment.

      Of course I am not claiming that would-be immigrants are guilty of a crime, but I am suggesting that they are not automatically entitled to all rights, such as freedom of contract and freedom of movement, enjoyed by members of the community. This would constitute “punishment” or a wrong against them only if they were already members of the community, which is the very point in question. One reason to deny outsiders a universal, unrestricted right of entry, is if this would predictably lead to a material degradation of the rule of law within the home community.

      With respect to any actual community, the consequences of allowing open borders are entirely empirical, and reasonable libertarians can disagree over this. But, if open borders led to the influx of even a relatively small number of people who murder cartoonists for drawing offensive images, or who murder Jews for being Jewish, a great many of our freedoms would be endangered. And, if this were the likely outcome of open borders, then I believe restrictions on immigration are consistent with libertarian principles. It does not seem plausible to me that a commitment natural rights should require us to surrender them.

  5. LoboSolo says:

    While I LIKE the IDEA of open borders, I must also deal with reality. The reality is that the US, tho a big country landwise, it has less than 5% of the world’s folks. We could eathly be overwhelmd.

    While some hispanics are assimilating, many are not. (Please don’t try to convince me that they’re assimilating like immigrants of the past … I’v seen those writs and poorly done studies that ignore reality.) The Pew study tells us:

    Unlike the European ethnics who came to the United States from Italy or Hungary, for example, Hispanics do not want to give up their language. Fully 95 percent say it is very important (75 percent) or somewhat important (20 percent) for future generations of Hispanics to speak Spanish.

    … more than half of Hispanics identify with their parents’ nationality—Mexican or Guatemalan, for example—and only 21 percent call themselves “Americans.”

    There is also the Mexican Nationalist Front. It naysays Anglo-American culture and rejects the Treaty of Guadalupe Hidalgo, as well as what its members consider the “American occupation” of territory formerly belonging to Mexico and now form the southwestern United States.

    An advocate of Reconquista is Professor Charles Truxillo (University of New Mexico), who sees a sovereign Hispanic nation called the República del Norte (Republic of the North) that would inhold the Northern Mexico, Baja California, California, Arizona, New Mexico, Texas and suthern Colorado.

    So it’s not only Islamists who may be a threat.

    On the other hand, we could open the borders to others of a like lifeway and/or tung (language). We could throw open the door to Canada (pop. 35m), Australia & New Zealand (about 28m), Belize (332k), Ireland (5m), even the UK (65m), and a few others … None of these countries or even all them together would overwhelm the US. They come from like backgrounds and speak English. They would eathly assimilate. Of course, I would expect reciprocity for those Americans who want to move.

    That’s not to say that immigration should only come from those countries but those are the ones would could pretty throw the door open for. Getting good talent from other lands is always worthy and we can screen those applicants.

    Throwing the doors open to the world is, sadly, a pipe dream.

    • Mark Friedman says:

      Hi LS:
      Thanks for dropping by with this comment. I agree with your conclusion. From the libertarian perspective, I believe that the only relevant cultural criterion is whether immigrants hold values that are consistent with the rule of law, i.e. tolerance for opposing views and lifestyles, acceptance of pluralism, respect for property rights, and so on. I agree that in the real world there are many countries whose citizens do not generally hold such values. The Mexican immigration issue is factual, and I claim no special expertise, but I am more optimistic than you are. I think that perhaps we are moving backwards with respect to such attitudes, and they may be improving. I discuss this in more depth and hopefully with more clarity in my new book Libertarian Philosophy in the Real World.

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