My wife and I were at a dinner party on Saturday at which one of the guests, who favors President Trump’s proposal for a wall, claimed that if you object to a wall, you have no right to object to someone coming on your property without your permission.
I said that one doesn’t follow from the other: a wall keeps people from coming into the country without the government’s permission whereas a wall around your property prevents people from coming on to your property without your permission.
He didn’t seem to grasp my point.
So I asked him if he thought the government should be able to stop someone from moving from Illinois to California. And if he doesn’t object, does that mean they should be able to go on his property without his permission? He said he didn’t object to their coming here because they’re presumably legal residents. He didn’t answer the other part but presumably he thinks Illinoisans shouldn’t be able to come on his property without his permission.
But notice what that means: he understands fully well the difference between a wall that keeps people out of a country (or a state) and a wall that keeps them off one’s property.
That doesn’t mean he’s wrong about the illegal issue. I think he is, but that’s a longer discussion. You can think it’s a good idea to restrict immigration. You can even think it’s a good idea to build a wall.
My point is more modest: there is an important difference between a wall around a country and a wall around one’s property.
Notice here someone who not only thinks there’s no difference but also acts on it by trespassing on a prominent politician’s property, while taking advantage of illegal immigrants while she’s at it.
READER COMMENTS
Ben Kennedy
Jan 22 2019 at 2:02pm
The house analogy is compelling to people who view the population of the US as a single family that is on the page about who is allowed to be inside. It’s less a dispute over walls and more a dispute over what a “nation” even is. Conservatives and Libertarians are working under very different assumptions and models, which is why simple analogies are incomprehensible to the other side.
Jairaj Devadiga
Jan 22 2019 at 2:57pm
Protectionists (as that’s what the border wall advocates essentially are) are too similar to the socialists they often (though by no means always) claim to oppose.
Consider, for example, their argument that foreigners are too socialistic in nature and will vote for bigger government. Yet, they unironically consider the entire country as the collective property of those already living in it, and vote on that belief.
Below is an illustration of what liberals believe vs what border protectionists believe. (Hat-tip: Alex Nowrasteh)
David Henderson
Jan 22 2019 at 4:22pm
Your illustration is missing.
Jairaj Devadiga
Jan 23 2019 at 2:58am
That’s odd. I remember pasting the link. I hope it works this time.
https://imgur.com/a/Hbf5dPT
Don Boudreaux
Jan 22 2019 at 4:14pm
David:
I agree with you.
David Henderson
Jan 22 2019 at 4:23pm
Good article, Don. I remember it now.
Kurt Schuler
Jan 22 2019 at 4:37pm
David, Scott Adams (the creator of the Dilbert comic strip) said that he would welcome talking on his podcast to an advocate of open borders about how the United States would handle the consequences. I suggest that you take him up on it; listening to two sharp intellects would be at least entertaining and possibly informative.
To the point in your post: the U.S. border facilitates your enjoyment of certain rights that many people outside it lack. For instance, your property is safer both from seizure by the government and from theft by private criminals than it is in a host of countries that I will tactfully refrain from naming, because their reach stops at the border.
David Henderson
Jan 22 2019 at 7:44pm
Kurt, you wrote:
David, Scott Adams (the creator of the Dilbert comic strip) said that he would welcome talking on his podcast to an advocate of open borders about how the United States would handle the consequences. I suggest that you take him up on it; listening to two sharp intellects would be at least entertaining and possibly informative.
Thanks for your suggestion. As I’ve written before, I’m not an advocate of open borders, but that’s mainly because I think the term is inapt and because I do want certain checks on criminals and people with communicable diseases. I want approximately the immigration laws of 1880.
Thanks also for your compliment.
You also wrote:
To the point in your post: the U.S. border facilitates your enjoyment of certain rights that many people outside it lack. For instance, your property is safer both from seizure by the government and from theft by private criminals than it is in a host of countries that I will tactfully refrain from naming, because their reach stops at the border.
That’s true. See my point about criminals above. But also note what I said in my post. This isn’t about whether walls or immigration restrictions are a good or bad idea. It’s about the narrower point I laid out in my post.
Billy Kaubashine
Jan 23 2019 at 1:27pm
The immigration laws of the 1880s might be preferable to you and others, but they are not the current law. Until and unless they become the law again the executive branch is charged with enforcing the existing law.
While a wall may not be the best means of enforcing the current laws, it certainly will be an improvement over the status quo.
David Henderson
Jan 23 2019 at 7:06pm
Your point is beside the point. I was responding to Kurt Schuler and telling him what my views are. That’s what matters given what Kurt suggested.
Joe Haschka
Jan 22 2019 at 4:48pm
I believe the writer misses the point about completing the border walls already started. Comparing border walls to personal property walls is legitimate when you see that both kinds of walls have entry points that are controlled. In the case of border walls for the US, we are not restricting immigration. We are controlling immigration (both legal and illegal), which is what our Federal Government should do.
Hana
Jan 22 2019 at 5:40pm
Large sections of the lands adjacent to the northern and southern borders of the U.S. are privately owned. Does a private owner have the right to restrict access to his land from domestic and international trespassers? What level of force should he be allowed to use to defend his property? How does he collect damages if the trespasser has no legal standing in the US? Can he sue the US government for not protecting his property from international trespassers?
David Henderson
Jan 22 2019 at 7:50pm
Hana, you wrote:
Large sections of the lands adjacent to the northern and southern borders of the U.S. are privately owned. Does a private owner have the right to restrict access to his land from domestic and international trespassers?
I think so. You’ve put your finger on one reason (see my response to Kurt Shuler above) that I don’t advocate open borders. It’s also a reason why a government-funded wall placed there using eminent domain is a bad idea and wrong.
You wrote:
What level of force should he be allowed to use to defend his property?
I haven’t thought about it a lot but offhand I would say the minimum necessary. So, for example, if the trespasser is not threatening bodily harm, it is wrong to shoot him.
You wrote:
How does he collect damages if the trespasser has no legal standing in the US?
I don’t know.
You wrote:
Can he sue the US government for not protecting his property from international trespassers?
I’m positive I know the answer to this one: no. He can’t even sue governments for not protecting his property from domestic trespassers. A large amount of legal precedent says that.
Handle
Jan 22 2019 at 6:28pm
I think it’s reasonable to say that walls around houses and walls around countries are both different in important ways, but also similar in important ways.
Libertarians tend to dismiss social compact theories of consent. But if you adopt the perspective that the state is in the same position with regards to citizens as the corporate government of a very large and exclusive private club with regard to its members, or a landlord with expansive holdings with regard to his tenants, then there in principle there is no difference between these entities erecting security barriers around institutional property and the state building infrastructure to manage access to national territory.
Fundamentally, the argument isn’t about the perfect validity of metaphors or analogies. It’s about whether one accepts a social compact theory of consent as a basis for law and legitimate state authorities over territory and individuals.
If one doesn’t accept it, then it’s easier to simply say so and to say that 99% of what the state does is illegitimate, not just immigration control.
David Henderson
Jan 22 2019 at 7:58pm
Handle, you wrote:
But if you adopt the perspective that the state is in the same position with regards to citizens as the corporate government of a very large and exclusive private club with regard to its members, or a landlord with expansive holdings with regard to his tenants, then there in principle there is no difference between these entities erecting security barriers around institutional property and the state building infrastructure to manage access to national territory.
I agree, and I don’t adopt that perspective. I don’t think it makes sense. To see why, read Don Boudreaux’s essay that he cites above.
You wrote:
Fundamentally, the argument isn’t about the perfect validity of metaphors or analogies. It’s about whether one accepts a social compact theory of consent as a basis for law and legitimate state authorities over territory and individuals.
I’m not sure that’s true, which is why I wrote the post. Is there a social compact theory of consent to California law? If you say yes, then when I say that people from Illinois should be able to move here, am I saying that they should be allowed to stay in my house without my consent? That’s what I’m addressing. Look again at what the guy at the dinner party said.
Handle
Jan 23 2019 at 10:34am
“I’m not sure that’s true, which is why I wrote the post. Is there a social compact theory of consent to California law? If you say yes, then when I say that people from Illinois should be able to move here, am I saying that they should be allowed to stay in my house without my consent? That’s what I’m addressing. Look again at what the guy at the dinner party said.”
Yes, there is a social compact theory of California law, which is the same as the theory for any jurisdiction up and down the hierarchy of sovereign authority in a democratic system. The representatives of the people of any state or territory entering the union knew that such entrance would be conditioned upon acceptance of the restriction that the new state could make no laws which abridge the privileges or immunities of citizens of the United States, which were understood at the time by the petitioners to include rights of domestic migration, relocation of residence, and freedom to transit, ingress into, and egress from the state.
So, the representatives of residents of California territory agreed to irrevocably permit U.S. citizens from Illinois, or anywhere else, move to California. The right to control migration is both legitimate and alienable, and California agreed to abandon it. With regards to restrictions on non-U.S. Persons, they also agreed that the laws of the United States shall be the supreme law of the land in general.
That’s why there’s a key difference between California restricting migration of out-of-staters, and the United States restricting the migration of foreigners. There is no agreement between, say, Canada and the US establishing a regime of open international movement between the two countries. There is an agreement between all U.S. states and the national state.
This is similar to European countries agreeing to permit similar rights to citizens of other European Union nations, as a condition of entering the EU. But it’s easy to imagine an EU arrangement which includes most of the other benefits and obligations, except with countries retaining migration controls.
The house analogy holds because, with certain curtailments as regards agents acting under lawful state authority to the contrary, one must obtain the consent of the owner of the property to enter, or those to whom the owner has delegated that right of invitation and exclusion.
Illinoisans have that consent from Californians. Foreigners do not have that consent from Americans. The situation of unwanted guests not having the consent of a homeowner is thus more like the latter statement than the former.
So, again, the question boils down to whether one accepts the social compact notion of an individual acceding to collective consent of the laws by virtue of choosing to remain in a jurisdiction and not electing to expatriate himself.
One doesn’t have to believe in the social compact theory of legitimacy of state authority in a democratic system of course, but if one drops it, then the state’s authority to prohibit equivalently exclusionary internal arrangements via private contract is also curtailed.
Hazel Meade
Jan 25 2019 at 10:34am
One doesn’t have to believe in the social compact theory of legitimacy of state authority in a democratic system of course, but if one drops it, then the state’s authority to prohibit equivalently exclusionary internal arrangements via private contract is also curtailed.
Maybe the state shouldn’t be permitted to prohibit exclusionary agreements via private contract.
There’s a second issue here. In the above case with California, and in some private contracts, the original people who agreed to the contract have died. For example, in some parts of the country there were areas governed by deed covenants which mandated that the property never be sold to African Americans. Also historically there have been cases in which wills have been drafted which bound descendants to certain requirements multiple generations later.
Libertarian theory should hold that every person entering a contract should do so voluntarily. Even leaving aside the fact that, with respect to social contracts, a 51% majority essentially imposes it’s will involuntarily on the other 49%, there’s the problem that California became a state in 1850, so everyone who voted for it is dead. In order for the social contract to be legitimate you should hold referendums on it every 20 years or so, and the terms of the contract should be open to renegotiation.
Mark Z
Jan 23 2019 at 12:20am
I don’t think acceptance of the validity of the social compact necessarily vindicates the metaphor. Social compact vindicates some state authority over territory and individuals, but not unlimited authority. For the analogy between a border wall and prohibiting access to one’s own property, one must accept the state’s relationship to its territory as analogous to a person’s relationship to land he owns. Most people who accept social compact theory, I expect, don’t think of it as entailing state ownership of all land in its domain. Most would not accept the idea that all of us only own are land at the discretion of the state. Even eminent domain requires a process and a set of standards to be met. Agents of states aren’t owners of their countries according to the social contract.
Handle
Jan 23 2019 at 12:22pm
“Most people who accept social compact theory, I expect, don’t think of it as entailing state ownership of all land in its domain. Most would not accept the idea that all of us only own are land at the discretion of the state. Even eminent domain requires a process and a set of standards to be met. Agents of states aren’t owners of their countries according to the social contract.”
The common legal metaphor for property ownership is a bundle of sticks, each stick representing some aspect of the rights of maximal, complete, and supreme sovereign dominion over the land, which is sometimes calls, “dominium directum et utile”.
The prevailing theory of property rights and “estates in land” is that, indeed, the state is the exclusive holder of complete sovereign rights to any land, and anyone who owns any real property within that’s sovereign’s territory really only acquires some of those sticks, and the land remains subject the those rights reserved by the sovereign. So, for example, no one is entitled to avoid state property taxes, or to exclude the agents of the state executing a lawful search or arrest warrant. No one has to right to stop an eminent domain action by merely withholding consent. The right to exclude such individuals or prevent such actions were sticks the state retained for itself, and which the owner never purchased or acquired.
One wonders how much those sticks would be worth! But in general, it is a circumstance of a split title. This means that all property is in reality owned in “condominium” with the state, which is in relation to owners as a landlord is to his tenants, and which acts as the management of the communal and collective rights and rules of the overall condominium complex, i.e., the national territory.
When the condominium management decides, legitimately according to its charter and by-laws to which all residents give constructive consent, to erect physical barriers to improve control of access to the overall property, individual condominium owners can always choose whether to acquiesce or exit.
Hazel Meade
Jan 25 2019 at 11:05am
Two problems here.
Condominium contracts are not like social contracts, because the condo owners voluntarily enter those agreements.
The charter and by-laws of the condo contract may well include terms which grant certain “rights” to the residents to have individual control over their property and who is allowed onto it. Those terms can’t be violated without having the voluntary consent of the residents to agree to different terms.
Returning to social contract theory, the 5th amendment states that property cannot be taken without due process of law, and cannot be taken for a public use without just compensation. American culture has long enshrined the notion that individual property holders have absolute rights over their own property, including who is and is not allow on their property. This is essentially the basis of the libertarian objection to public accomodations law – business owners have a fundamental right to decide who enters their premises or not. So arguably part of the “social contract” upon which America is founded does actually include strong individual property rights, which are enshrined by law in the constitution, and NOT an unlimited grant of power to the state. In America, the states power to take private property and control what owners do with it has always been limited both by the social contract.
Mark
Jan 22 2019 at 7:39pm
The distinction between private property and sovereign territory is also clear in the moral basis for land ownership. People usually defend the morality of land ownership on some basis that the first person to use their labor to improve the land can claim ownership of the land so long as enough is left for others.
Private property generally meets both parts of this test while sovereign territory does not. On the first part, nearly all private persons acquired their land through their own labor, namely working and then using the proceeds of that work to buy their land. Whereas most sovereign territory in the world was acquired by conquest, which is not a legitimate moral basis for ownership.
On the second part, one’s ownership of a house does not deprive other people of any meaningful economic opportunities. Even the greatest landowners in the world do not own that much land in the grand scheme of things. Moreover, there is plenty of empty land where new houses can be built. And in situations where a few landowners really do own all the land, it would be immoral for them to treat it as their unconditional private property (as was the case in feudal regimes). Contrast this with the situation of sovereign territory. There are less than 200 countries in the world, which collectively own all of the land. Nobody can build a new country the way they could build a new house. Moreover, those 200 countries are highly unequal. Just four countries–the US, China, Germany, and Japan–make up over half of global GDP. The US itself is 20% of the world’s economy and likely makes up an even greater share of the world’s economic opportunities. So when the US excludes potential immigrants, it creates far more hardship on them than when a private person excludes trespassers. If 50% of all land and housing in the US were owned by just four people or companies, and it was illegal to build new houses, I think we would not give those four people or companies unfettered discretion to decide who to let on their property.
Benjamin Cole
Jan 22 2019 at 8:22pm
This is a rather weak analogy.
Sovereign nations have the right to control their borders, define citizenship, print money, operate civil court systems and provide for national security and so on.
If a border region is frequently crossed illegally, then a border wall make sense.
Any and all government powers will be abused, but anarchy is not the best alternative.
Rick Stewart
Feb 4 2019 at 4:14pm
“If a border region is frequently crossed illegally, then a border wall make sense.”
What if a border wall will have no significant impact on illegal border crossings?
What if a border wall will have no significant impact on illegal border crossings, and it will cost billions of dollars to build?
BC
Jan 22 2019 at 9:43pm
I don’t know David’s friend, so I would not invite him into my home. I would not dream, however, of suggesting that the government should build a wall to keep David’s friend out of the country just because I would not invite him into my home. Hopefully, David’s friend will extend that same courtesy to (non-criminal, non-terrorist) foreigners that all of us who would not invite him into our homes extend to him.
By David’s friend’s logic, only David’s close personal friends should be allowed in the country. After all, David wouldn’t want perfect strangers, even American citizens, trespassing on his property. Therefore, by David’s friend’s logic, David should favor building a wall to keep all of those strangers out of the country.
Tony Brewer
Jan 23 2019 at 12:26am
I disagree with your example of moving from Illinois to California. It’s not comparing apples to apples. To compare having a right to enter the country illegally or trespass onto someone’s property to being allowed to move from state to state has one major and very important difference. The difference is that it’s not illegal to move from state to state but it is illegal to enter this, or any, country illegally or trespass onto someone’s property without permission. Illegal immigration is simply wrong. It’s a very hard choice to make as a president because there is an element of compassion but that’s part of the job.
David Henderson
Jan 23 2019 at 10:47am
You wrote:
That’s a very good point if and only if he was saying that he had no problem with people coming into the United States legally. I thought in the moment that he was arguing against allowing millions of people to come here legally. But maybe he was simply arguing against their coming here illegally. I’ll have to ask him next time I see him.
Floccina
Jan 23 2019 at 10:30am
What I usually say to those people, is that I have a right to use the public property like the roads in this country (which BTW are supposed to funded by gasoline taxes). So if I want to let someone in using my right to use the roads why can’t I? What if I go pick them up in my car?
Tony Brewer
Jan 25 2019 at 11:54pm
I may be missing your point. Are saying you should be allowed to transport illegal immigrants into the country in your own vehicle as long as its on public roads? Sorry if I missed the point completely.
Rob Weir
Jan 23 2019 at 1:38pm
A home is an example of a private good. Legal residency or citizenship are examples of club goods. (Some countries even explicitly sell citizenship to wealthy buyers.) I think most people get the difference, once it is explained to them.
TMC
Jan 24 2019 at 8:12am
Yes, I’ve used the example of an HOA. There may be a pool for the members, and they have every right to exclude those who are not members. Basic property rights that libertarians oddly make contorted arguments to circumvent.
RPLong
Jan 24 2019 at 8:41am
Maybe your HOA works differently than mine does. At my pool, I’m entitled to bring any guest I want to, as long as the guest abides by HOA rules. Other HOA members do not have “every right to exclude” my guests. Any attempt to exclude my guests is a violation of HOA rules, and indeed my rights under the contract I signed with my HOA.
So, back to immigration. I agree with Floccina’s point. Even if the country were a giant, glorified HOA, I am still entitled to invite guests and no one else is entitled to exclude my guests.
In other words, one of the main shortcomings of the household metaphor is that it fails to acknowledge that a good many of us want more immigrants to be allowed in the country. Attempts to wall them out of the country are a violation of the same sort of “household rights” claimed by immigration opponents.
D Wallace
Jan 25 2019 at 9:56am
It is of course great that you can invite someone in, and natural that they can then use the pool. But I presume that you stand as guarantor for their behaviour, and you I take it would want to do likewise for any immigrant you sponsor.
Trump’s wall may be great, insane or merely a total waste of money, but it is at root an attempt to distinguish between gatecrashers and invited – and welcome! – guests.
Hazel Meade
Jan 25 2019 at 11:21am
Correct, and let’s remember the motivation for this.
The motivation is largely that your “guests” are going to “steal jobs” from other members of the HOA. In other words, this is the plumber that lives down the street trying to prevent the plumbing company you want to hire from entering the HOA in order to do work on your house, because he wants you to be compelled to hire him, so he can charge more for his labor. No HOA in America prevents people from hiring people from outside the HOA to come in to do temporary work, that I know of. Nor would they prevent your plumber from buying a house in the HOA, if it were up for sale. Whereas in the HOA version of America, they have rules saying things like “no entering the HOA unless you have a job lined up”, and “no offering someone a job unless they are an HOA member”. And these rules were imposed after you joined the HOA.
So it’s more like this HOA is actually some weird commune where everything has to be internally self-sufficient and you are not allowed to hire anyone or import anything from outside the HOA.
Jay
Jan 24 2019 at 1:06pm
The Illinois to California analogy is a weak one to me, California does setup state border checks on the interstate highways into the state to check for various things and stop cars entering the state. I know its the not the same as “stopping someone from moving” but movement isn’t completely free.
Phil
Jan 24 2019 at 1:53pm
Those checkpoints are run by the state Department of Food and Agriculture to protect California’s crops from certain invasive insects and plant species. It has nothing to do with the movement of humans.
Jay
Jan 25 2019 at 1:56pm
They are a still a restriction on movement should I have those forbidden (by CA) items. I’m not saying its a convincing argument, just that it isn’t 100% freedom and I would have picked any other state in my example.
adam
Jan 28 2019 at 2:46pm
Even if you accept this analogy, it doesn’t actually support the case for the border wall. A recent study estimated that two-thirds of those who arrived in 2014 did not illegally cross a border, but were admitted (after screening) on non-immigrant (temporary) visas, and then overstayed their period of admission or otherwise violated the terms of their visas. And the caravans that are so much in the news are made up of people who are presenting themselves at the border for asylum. So, if we want to play on your friend’s analogy, building the border wall is like putting a fence around your house because a house-guest overstayed his welcome and because your neighbor keeps showing up at your front door to ask if he can watch TV with you.
John Donnelly
Feb 4 2019 at 5:43pm
Most of the walls I see in neighborhoods are for privacy. They rarely keep out anyone of criminal intent. There are exceptions of course but those are few.
No one is interested in a border wall for privacy and they do not work in cases where overcoming it is a matter of life or death.
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