This Land Is Whose Land?

by Butler Shaffer

One of the current questions that helps to distinguish libertarians from conservatives is that involving so-called “illegal immigration.” Because conservatives acknowledge the legitimacy of the state, they tend to regard it as an entity entitled to exercise the same rights of exclusion as do property owners generally. The state’s claim to sovereign authority over its territorial boundaries largely goes unquestioned by most conservatives. If persons from another nation wish to enter the territory claimed by the state, it is appropriate for the entrant to have to get that state’s permission.

Whether one rejects the legitimacy of the state entirely, or regards it as only the agent of those who have selected it to protect their lives and property interest under some illusory “social contract” theory [a topic I explored in my previous article] it is difficult – from the perspective of a libertarian – to think of any political system as enjoying “rights” that parallel those of human beings. As the state had no existence prior to the appearance of humans who either created it, or who were conquered by it, it is hard to grasp an argument that would recognize this entity as having any interests that preceded its creation, and that did not derive either by contract or by violence. No evidence exists for any political system having arisen through mutual agreement of those to be bound, and with a fairly universal rejection of the idea that one can legitimately acquire the interests of some through their forcible usurpation, the state has no claim to the exercise of “rights” that any libertarian would be bound to respect.

The Anglo-American legal system confines property ownership to “persons,” i.e., to self-owning, self-controlling beings. This is why your dog or cat cannot be property owners (people who provide for such animals in their wills leave the property to a trustee who, in turn, will make decisions for them). This is what made the Dred Scott case – with which I begin my Property class each year – so important: was Scott a “person” or the “property” of his master? This also explains the existence of “corporations” as artificial, legal persons, a concept rife with contradictions and inconsistencies not applicable to natural persons.

Can political systems be regarded as “owners”? If so, on what basis? If the state is our agent, upon what logic could it be said to enjoy a claim of ownership against us, its alleged principals? If the ownership of property is an extension of self-ownership, does the state enjoy this same fundamental quality as do the rest of us? If my neighbor and I are self-owning beings – each unable, in principle, to compel the other’s actions – is the state a coequal in this arrangement? If the state wishes to engage in a war, and the rest of us oppose such action, must we respect its decision in the same way we would respect our neighbor’s acts? Is this why voting in elections has historically been such a waste of time, as the state insists upon pursuing its own interests regardless for whom we vote? If the state had been created via a social contract, and if it is considered a self-owning being entitled to own and control property, could those who allegedly created it also agree to terminate it? Is a parent entitled to end the life of its child?

There are too many unexamined questions involved in our recognizing the rights of ownership residing within the state. I have explored many of these issues in my book, Boundaries of Order. Suffice it to say that the authority of the state to prevent foreign persons from entering its territorial boundaries without permission is dependent upon its being able to make a property claim thereto.

Supporters of government restraints on immigration make the deadly mistake of conflating individual and collective claims of ownership, a stance reflecting how deeply embedded collectivism is in our culture. If someone, without my consent, decides to pitch a tent and reside on my front lawn, I would be entitled to remove him; to exclude him from the enjoyment of what is mine. But if this same person decided to take up residence on unowned land, what claim could I legitimately make against his doing so? Further, if all this other person sought to do was to enter the United States, without anyone’s permission, what principles could be invoked to give credibility to the arguments that he ought to be removed?

With the exception of land subject to a claim of ownership by a self-owning person, I am unable to find any principle that could be invoked to prevent people from wandering – or flying to – wherever they choose on the planet. As the state has no legitimacy that I am prepared to recognize, its claim of authority to restrict such movement must fail. To believe otherwise is to confine mankind to primitive, tribal explanations of human society. Modern technologies – particularly the Internet – are premised on the transcendence of traditional geographically-defined social boundaries.

We humans have generated so much conflict, destructiveness, wars, and other social dislocations because of our failure to respect the inviolability of one another’s property interests. The state thrives on such trespasses; could not operate without them. We have been thoughtless enough to let the state get away with its contrived conflicts that set us at war with one another. We buy into this self-perpetuating racket because, to do otherwise, would require us to burden our minds with thoughts we prefer not to consider. We prefer to be entertained – perhaps to wonder who will be the next “American Idol,” or to follow the daily CNN drama on an oil spill.

One of the many diversions offered to keep us focused on the politically-generated conflicts that the state promises to resolve, is found in the mobilization of our dark-side forces. In times of social turmoil – such as we are now experiencing – we feel comfortable in finding “scapegoats” for our problems. So-called “terrorists” – people who react to the American foreign policies most of us prefer not to examine – can be used as a rationalization for bombing and killing people who have caused us no harm. It is enough, for most Americans, to have a president label another nation as “terrorist” and then support an attack upon it.

Dark-side energies can also be set in motion against racial and ethnic groups, whose visible characteristics make them easy targets for collective aggression. While motivations grounded in racial and cultural bigotry will be vigorously denied by those demanding more forceful state action against “illegal immigrants,” it is difficult to imagine such a vociferous campaign being urged if people were streaming into the United States from Canada rather than Mexico. For much the same reasons that most Americans found it acceptable, during World War II, to put Japanese-Americans into concentration camps (ooops, “relocation centers”), but would have rejected efforts to round up and imprison Americans of German ancestry, the current war against Central-American immigrants is easier to sustain.

That the state can rely upon so many of us to activate our dark-side forces on behalf of an immigration “problem” whose resolution will expand police-state powers, is but another example of how we generate the inter-group conflicts that are required by political systems for their continuing health. But beyond this is to be found the further deterioration of the private property principle, and an expansion of the more simplistic sentiment grounded in collective ownership and authority.

As a closing thought, those who so eagerly beat the drums for government troops, walls, and other coercive means of controlling immigration into this country, might pause to reflect upon how they are here because their ancestors were free to enter what was once a country with open borders.

July 21, 2010

Butler Shaffer [send him e-mail] teaches at the Southwestern University School of Law. He is the author of the newly-released In Restraint of Trade: The Business Campaign Against Competition, 1918–1938 and of Calculated Chaos: Institutional Threats to Peace and Human Survival. His latest book is Boundaries of Order.

Copyright © 2010 by Permission to reprint in whole or in part is gladly granted, provided full credit is given.


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