Closed Borders: A rights-based defense

Harry Binswanger of the Ayn Rand Institute has written on the “right to freedom of travel” here. See also his defense of open borders immigration here.

He writes:

“Freedom of travel is a right. It is a right possessed by every human being, not just by Americans. The Mexican government or the French government has no right to stop you from entering Mexico or France, and our government has no right to stop a Mexican or Frenchman from entering America”; or, “The principle of individual rights demands open immigration. Implementing that would mean phasing out all limitations on immigration. Entry into the United States should ultimately be free for any foreigner, absent objective evidence of criminal intent or infectious disease”; or, “Amnesty for illegal immigrants is not enough, they deserve an apology”

All Binswanger seems to see here is that one private individual who happens to be in Mexico, and one private individual who happens to be in America, both seemingly consent to the Mexican traveling onto or across the American’s property. He writes:

“The country does not belong to the government. It does not belong to the majority. Land belongs to individual, private owners, and only they have the right to invite or bar others from coming on their land.”

Essentially his argument is that if you are a citizen who owns property at the border of the country, and you give your permission for some non-citizen to cross the border and come onto your property, then the government has no right to get in the way of this mutually-consented-to interaction. The citizen with property on the border is giving his consent, so the non-citizen should be able to cross un-hindered.

But the American, by virtue of their citizenship, is already in an agreement with the government not to allow foreigners to cross the border: the citizen has an existing contractual agreement to follow immigration and border control law. You can’t claim they are just simply and freely giving their consent to travel – they can’t give that kind of consent freely, as they already have an agreement prohibiting it.

If it wasn’t for their US citizenship, if they didn’t already have this prior commitment to follow the laws of their country, then sure, it would be as simple as freely giving his consent. But that’s not the case. In reality, if he decides to let in a non-citizen, then he is in criminal violation of the law he has agreed to follow as a citizen. Without the citizen being able to give their legal consent to the travel, of course the foreigner has no right to proceed either.

What Binswanger is missing here is that the United States was founded as – or at least a proper government ought to be – a limited government. A limited government is a government based on the consent of the governed. It is formed by people joining together through a voluntary, contractual agreement, with absolute and consistent respect for the individual rights of its citizens.

(Side note – public property is a valid concept under such a limited government model: the government is established by its citizens, and its property is, ultimately, the property of its citizens. It’s like a corporation, which may have capital or cash on hand which doesn’t belong to any individual shareholder personally, but it’s still owned by them all per the terms of their contractual agreement. It’s still private property, and the terms for the use of that property is still entirely under the control of the shareholders – or the citizens in this case.)

If a person can legitimately bar others from entering his own property, then a group of citizens can legitimately form a limited government together wherein they bar foreigners from crossing their borders except through agreed upon channels.

Are the rights of the citizen being violated by such a policy?

The law is of course not being forced upon the citizen under the limited government model. An individual joins and remains a citizen of a limited government voluntarily, and has a say in the process whereby law is made. If his differences are so irreconcilable that he decides he wants to be free from it, then he can terminate his agreement with the government according to the legal mechanism in place: by renouncing his citizenship. This would remove him from the jurisdiction of the government, as well as from it’s protection, and indeed from any legal relationship with its citizens. Returned to the state of nature, he would then be in the simplified situation Binswanger imagined, where the two individuals unencumbered by legal establishment can take their chances with one another.

Finally, one might object that a proper government shouldn’t restrict immigration and border crossing because it’s not a proper defense policy (I will argue against this elsewhere – it is clear, in my mind at least, that border security is absolutely critical for national defense).

We’ve established that in a limited government this policy of restricting border crossing is entirely taking place within a legitimate, voluntary contractual agreement, and so the policy is ultimately being adopted with the consent of the governed. But let’s say a citizen happens to disagree with the policy, and even though he consents to the legal system which enacted it, he feels that the policy is wrong, and every time this policy is enforced that he is being wronged.

Even still, though the policy may be irrational and harmful, you cannot say that his rights are being violated – that’s just not how voluntary contracts work. As a voluntary signatory to the contract, of course he is going to be subject to the terms of his agreement as a citizen of the government, until and unless he chooses to withdraw from the agreement.

Therefore, in any limited government that has legally closed its borders, there is no inherent right to the freedom of travel which allows someone to cross the border.