Among the arguments that libertarian advocates of border controls often use is the sovereignty argument. It goes like this: Since government is the owner of the highways, it can legitimately control who travels on them, much as a private owner has the right to control who comes into his home or business. These libertarians claim that if the highways were privately owned, the private owners would bar foreigners from freely using them and, therefore, the federal government should do the same thing.
There are several flaws, however, with this argument.
While government is the owner of the highways, does that mean that it should have all the rights of ownership that private owners have? Surely not! For example, the government owns and operates the public schools. As the owner, should the government be able to establish one set of schools for blacks and other set of schools for whites? Most everyone today would say no. While private owners should be free to discriminate on any basis they wish, most of us do not want government to be able to do so. Of course, libertarians would agree that the government shouldn’t own schools. But given that it does, I would think that most libertarians would not want the government to discriminate against students on the basis of such things as race, religion, or economic status.
The same principle applies to such things as highways. While libertarians would favor the privatization of highways, as long as government owns them most people, including border-control libertarians, would agree that it would be wrong for government to discriminate against highway users on the basis or race, religion, economic status, and other such factors.
Highways are simply a means by which people are able to get from private property to private property. It is estimated that there are about 10 million illegal aliens in the United States. None of them are sleeping on the highways. They have made their way into private homes and businesses through the consent of the owners of those establishments. To the extent they’ve used the roads, they have done so for the same reason everyone else does — as a means of getting from point A to point B.
When foreigners enter the United States, they are exercising what libertarians consider are fundamental rights: freedom of travel, freedom of association, and economic liberty. They use the highways simply as a convenient means to getting to the private establishments where they exercise such rights.
Thus, there are two important points here. First, in making their sovereignty argument the border-control advocates automatically assume that private owners of highways would prevent foreigners from using their highways to enter the United States. However, how valid is that assumption, given the high number of Americans who have permitted illegal immigrants to enter their homes and businesses all across the United States? Why would private owners of highways be any more willing to give up revenue than private owners of homes and businesses? Have you ever seen any retail store with the following sign in its window: “We don’t wish make money from immigrants. Please take your business elsewhere”?
Second, in making their sovereignty argument, libertarian border-control advocates are calling on government to suppress what libertarians themselves consider to be fundamental, inherent rights that preexist government. How can such rights be fundamental and inherent if government wields the power to suppress them simply because it happens to own the means by which people get from point A to Point B to exercise them?
Additionally, it’s interesting that libertarian border-control advocates never extend their sovereignty argument to state and local governments. In other words, if the federal government, as owner of highways, has the sovereign authority to prevent foreigners from using its highways, why don’t states and localities have the same authority to erect border controls around their respective states and communities?
There is another fatal flaw in the libertarian sovereignty argument, one that I raised many years ago but which, as far as I know, no libertarian border-control advocate has ever addressed. My hunch is that the reason they’ve never addressed it is that they don’t have an answer to it.
Suppose I own a ranch in New Mexico that adjoins the Mexican border. My home is located on the ranch, 5 miles from the highway and near the border. I also own the adjoining ranch on the Mexican side, where my brother, who happens to be a Mexican citizen, resides. One day I invite my brother over for dinner.
On that day, the libertarian border-control advocate happens to be riding with a U.S. Border Patrol agent along the government highway that adjoins my property, in search of people illegally crossing the border. They take a turn to enter onto my ranch but encounter a locked gate. They have no warrant to enter my property but proceed to enter onto it anyway pursuant to the power to control the border. To get past the locked gate, they simply shoot the lock off.
They then travel five miles toward the border, go past my house, and station themselves on my property in order to control the border. Now, keep in mind that the border is simply an imaginary line that divides one large tract of land that I own. The libertarian border-control advocate and the Border Patrol Agent can’t really stand on the border; they’ve got to stand on my property, without my consent, to protect the border.
That evening, my brother approaches the border on his way to my house for dinner. The Border Patrol agent declares, “Don’t cross that imaginary line! We have border controls in this country.”
My brother responds, “I have the fundamental right to travel on my brother’s ranch and to come to his house for dinner. Haven’t you heard of private property and freedom of association?” My brother adds, “You have no right to be standing on my brother’s ranch without his consent. You had no right to shoot the lock off his gate. You are trespassers — both of you.”
My brother proceeds to cross the border, heading to my house for dinner. The Border Patrol agent now has a choice — either step aside and let him pass or initiate force against him, e.g., by shooting him. One can only imagine the spectacle of a libertarian border-control advocate exhorting the Border Patrol agent to enforce the border by shooting my brother, notwithstanding the fact that my brother has engaged in the purely peaceful act of coming onto my property for dinner at my invitation.
How can the libertarian reconcile his exhortation to shoot my brother with the libertarian non-aggression principle? He cannot, which is a fairly good sign that his sovereignty argument is fatally flawed, at least from a libertarian standpoint.
Virtually every part of the federal government’s welfare-warfare state is in crisis and chaos, and its decades-long war on immigrants is no exception. As Americans reflect on all the bad things the welfare-warfare state has brought our nation, today — Good Friday — would be a good place to start questioning the war on immigrants. When asked what the first and greatest commandment was, Jesus replied “You shall love the Lord your God with all your heart and with all your soul and with all your mind. And the second is like it: Love your neighbor as yourself.” Every Christian owes it to himself to ask how it is possible to reconcile America’s war on immigrants with those sacred commandments.
