8. Roads and the Immigration Issue

There is a debate now raging within libertarian circles concerning the immigration issue.¹ Should government restrict immigration, or should people be allowed to cross international borders with impunity, without any leaves or permissions granted by the state? We consider this issue in the present chapter since private highways would potentially play an integral role in its determination.

Since this immigration debate is entirely an intra-libertarian one,² all sides would agree to stipulate that, at least ideally, government would play no role in the ownership and management of roads. We, then, assume this to be the case, arguendo.

What is this immigration debate? The anti-immigration side maintains that free immigration amounts to trespass, or forced integration.³ Since all property, not just roads, would be owned in the free society by private individuals, any immigration must of necessity cross these private property rights boundaries. As such, without the willing consent of the owner, free immigration amounts to trespass, or forced integration, nothing any advocate of free enterprise could be expected to support. This is to be sharply distinguished from the free movement of goods, money, and capital across national boundaries. In these latter cases, there is mutual agreement between the buyer and the seller, the consumer and producer, the lender and the borrower, the saver and the investor.⁴ Goods, money and capital cross borders only under such circumstances of mutual agreement. In contrast, immigration is not an instance of such two-part voluntariness. Rather, the immigrant, as it were, plunks himself down in the foreign country, with no permission required of any other second-party private property owner.

What is the position of the free immigration side of this debate? First, it starts off by conceding the absolute truth of what has just been said. If all property is privately owned, there is no scope, whatsoever, for immigration of this sort. However, and this “however” is the crux of the argument, not all property is owned privately at present.

Surprise!, the evil government owns larges swatches of it, mainly in Alaska and west of the Mississippi, but throughout every state in the nation, without exception.⁵

This being the case, no permission of any extant landlord is needed. Homesteading is a one-way arrangement, not a two-way one, such as foreign trade or investment. If Americans act like sheep and decline to homestead these unowned areas, in defiance of their government, they can have no proper objection if foreigners show a bit more initiative and spunk. Nor is the objection tenable from the anti-immigration perspective that Americans “really” own these unsettled tracts of land or, worse, that the government does. For surely it is an uncontroversial premise (at least within the libertarian community) that the only just source of private property rights is homesteading, and, thus, anyone interfering with a homesteader peacefully going about his business is guilty of the initiation of violence. Since there is no reason to distinguish between foreign and domestic would-be homesteaders, the case for precluding the former (or the latter, certainly) on grounds of trespass vanishes.

How does this argument fit in with the institution of private roads? Simple. Assume that the foreign homesteaders helicopter over to unowned (that is, government claimed) land in, say, central Wyoming, and begin to settle there. Can they enter onto the private roads, and have surface access to the entire country, indeed, to all of North America? Or, will they be confined to helicopter (or plane) travel, when they venture out of their newly homesteaded territory?

There is, also, a second way in which the issue of private roads impinges upon that of immigration. Go back to the Hoppean scenario of complete private ownership. Suppose there were a U.S. citizen who purchased, or otherwise legitimately came to own, a vast tract of land in the middle of Alaska, or Nevada—thousands of square miles. He then invited, suppose, one billion Chinese, or Africans, or South Americans, or other foreigners to come and live and work on his land. Since this is a mutually agreed upon situation, there can be no question of trespassing. But the question still remains: would these hordes of people be confined to these hinterlands, or, apart from air travel (with willing hosts at the other end of these trips), would they have access to all⁶ surrounding territory through the roadway network, as in the case of other people?

Thus, we arrive at the same question from both sources. One, if the foreigners homestead out of the way places on their own, and two, if an American property owner invites numerous foreigners onto his territory. Will these people be able to percolate throughout the entire country, as is the practice for everyone else, or will they be confined, by the institution of private road ownership, to their beachheads?

But perhaps we go too fast in blithely assuming that “everyone else,” all those other people already living in the domestic country, will have full freedom of movement. If they do not, the way ahead is easier to see where the newcomers will not enjoy these privileges either.

After all, while racial (sexual, ethnic, orientation, etc., etc.) discrimination is pretty much against the law of the land, it by no means contravenes libertarianism, the philosophy now under discussion.⁷ So, will all racial, sexual and ethnic etc., groups be allowed onto the private network of roads, streets and highways, or not? We ask, under the assumption, at least on the first go round on this, that new foreigners will be treated roughly in the same manner as domestic minority groups.

The problem with this question is that it is exceedingly difficult to anticipate the operation of the free enterprise system regarding the road industry or, indeed, any other for that matter. This task is essentially an entrepreneurial, not an economic, one. If so pedestrian an item as pencils were suddenly moved from the public to the private sector, the analogous questions would come fast and furious, with no obvious objective answers in sight: How long, wide, thick and heavy would these writing implements be? Would erasers be attached, and if so, how so, and if not, who would supply the latter? Would there be specialty stores that sold pencils, or would they be marketed alongside other office materials? How much would they cost? What profits would be earned on them? Who would attach the wood, graphite, rubber to one another, and how on earth would they be gathered together in one place, given that they come from different ends of the earth?⁸ We would have no definitive answers to any of these questions, except that we should “wait and see” what the working of the marketplace churns up. However, had pens always been in the private sector, we might well attempt to extrapolate the future story of the pencil from that example, and this is precisely the tack we shall take in our attempt to foretell the likely reaction of a completely privatized road industry to the questions about street and highway discrimination we are addressing. That is, we shall focus on a related experience, and see if it can shed any light, however clouded, about possible future road operation.

One answer that might be discerned is that discrimination, if it does occur, would likely take place on the basis of uncivilized or obstreperous behavior, not mere skin color (unless the two were highly correlated, and the latter could be used as a cheap proxy variable or indicator of the former). Even statist police, who are sometimes accused of “racial profiling,” rarely if ever interdict a black grandmother. Rather, they tend to focus on that subset of this population proportionately over represented in the crime statistics: males from about ages fifteen to twenty-five, of whatever race (with the exception of those in this age/gender cohort who are easily identifiable as being far removed from the police blotters of the nation, e.g., male teens who are Chasidic, or Amish, or are wearing clerical collars). As it happens, however, for reasons that do not concern us at present,⁹ different racial and ethnic groups are differentially represented in terms of such unwelcome behavior: blacks for ordinary crime, Arabs and Muslims for terrorism.

It is safe to say then, as much as it is safe to say anything about how a hypothetical highway industry would operate in future, that these groups would be more likely to be singled out for heavier scrutiny before being allowed out onto private highways, and perhaps in some cases even forbidden entry. Yes, certain benefits would not accrue to owners who turn away customers; discrimination costs money to firms who engage in such practices.¹⁰ However, the presumption here is that these losses would be more than offset by a majority of paying customers who appreciate the added safety thereby vouchsafed for them.

Let us now return to the question with which we began. We asked if massive numbers of foreign immigrants would likely have the run of the place under a regime of private road ownership. Peering through the murky clouds necessarily surrounding such essentially entrepreneurial issues, my own personal best guess is that this would depend almost totally upon their behavior. If they are hard working and industrious, good safe drivers, not given to criminal behavior, then the likely answer is yes; if not, then, not.

Another dimension comes into play with regard to road access. There are already gated communities which place all would-be entrants under a veritable microscope before allowing admission. To gain entry onto these private, low traffic capacity streets, one must typically convince an armed guard of his bona fides. This is often buttressed by an on-the-spot telephone call to the person being visited. There is very little acceptance, in such venues, of outsiders who wish to engage in joy riding, house viewing, window shopping, touring around, etc.

In contrast, nowadays, the level of examination for major traffic arteries is much less. This might imply that the foreign immigrant homesteader or invitee might find more of a welcome on the highways rather than on the byways of the nation. But any such conclusion is fraught with danger, as ceteris paribus conditions do not at all hold at present. Specifically, the heightened scrutiny for gated communities is all private, while the more relaxed, not to say cavalier, treatment (virtual anonymity for motorists who do not negatively distinguish themselves) is almost entirely a practice of public police. Another, possible, implication, then, of an all-private roadway system might well be increased care with regard to what the customers are up to for all roads, no matter what their traffic bearing capacity. This would have greater negative implications for the freedom of movement of newcomers, and subcategories of the native population who are criminally oriented. Most likely, perhaps, is that private road owners would invest in more information gathering for vehicle owners who seek access to residential neighborhoods for those who whiz along a highway at seventy miles per hour.

What must never be lost sight of in any such analysis is the high probability that there will be different practices with regard to such safety concerns on different roads. This typically occurs concerning virtually all goods and services produced. Burger, car, amusement park entrepreneurs, etc., are now free to implement whatever policies and procedures that seem to them likely to maximize profits.

At present, we are all too much accustomed to the rules of the road emanating from Washington, D.C. In our one-size-fits-all current practice, there is simply no scope for trying one thing on one street or avenue, and something else on others. Thus, we must take with a large grain of salt any one policy adumbrated above. Of course, if there is a reason that some policies are more profitable than others (e.g., cheaper, more in line with consumer tastes, etc.), the market place will tend in that direction, penalizing those firms that do not go along. It is only this latter phenomenon that allows us to speculatively peer through the fog to the degree we have.

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¹Walter Block, “Ethics, Efficiency, Coasean Property Rights and Psychic Income: A Reply to Demsetz,” Review of Austrian Economics 8, no. 2 (1995): 61–125; Hans-Hermann Hoppe, Democracy—The God That Failed: The Economics and Politics of Monarchy, Democracy, and Natural Order (New Brunswick, N.J.: Transaction Publishers, 2001), pp. 159–60, n. 10; Walter Block and Gene Callahan, “Is There a Right to Immigration? A Libertarian Perspective,” Human Rights Review 5, no. 1 (October–December, 2003); Julian Simon, The Economic Consequences of Immigration (Oxford: Basil Blackwell, 1989); James L. Hudson, “The Philosophy of Immigration,” Journal of Libertarian Studies 8, no. 1 (Winter, 1986): 51–62; David Gordon, “The Invisible Hoppe,” Mises Review (Winter, 1997); Donald Boudreaux, “A Free Market Case Against Open Immigration?” The Freeman (October 1996); Peter Brimelow, Alien Nation: Common Sense about America’s Immigration Disaster (New York: Random House, 1995); Patrick J. Buchanan, The Death of the West: How Dying Populations and Immigrant Invasions Imperil Our Country and Civilization (New York: St. Martin’s Press, 2002); William L. Anderson, “Immigration Quandary” (June 24, 2004), http://www.mises.org/fullarticle.asp?control=567&id=68. See also Journal of Libertarian Studies 13, no. 2 (1997) for several other contributions to this topic.

²This, of course, is not to deny that non-libertarians, too, discuss and debate the matter; it is only to assert that in these pages, we shall confine ourselves to the one taking place only amongst libertarians.

³See on anti-immigration, Hoppe, Democracy—The God That Failed, and Gordon, “The Invisible Hoppe.”

⁴But, see, William Barnett II and Walter Block, “Saving and Investing,” New Perspectives on Political Economy 3, no. 2 (2007).

⁵For example, state and federal government own 95.8 percent of Alaska, 87.8 percent of Nevada, 75.2 percent of Utah and 60.4 percent of Oregon; on the other hand, east of the Mississippi the holdings are more modest. For example, 1.5 percent of Rhode Island, 6.2 percent of Connecticut, 6.3 percent of Massachusetts, 7.4 percent of Delaware and 7.6 percent of Maryland. For the U.S. as a whole, the figure is 39.8 percent. See on this: http://www.nwi.org/Maps/LandChart.html

⁶Perhaps we should say “most” here, to incorporate the fact that there might be gated communities, and other institutions that narrowly restricted access to their property. But still, the question remains, would these new one billion immigrants be treated on much the same basis as extant inhabitants of the country?

⁷Richard A. Epstein, Forbidden Grounds: The Case against Employment Discrimination Laws (Cambridge, Mass.: Harvard University Press, 1992); Walter Williams, “On Discrimination, Prejudice, Racial Income Differentials, and Affirmative Action,” in Discrimination, Affirmative Action and Equal Opportunity, Walter Block and Michael Walker, eds. (Vancouver, B.C.: Fraser Institute, 1982); Thomas Sowell, “Weber and Bakke, and the Presuppositions of ‘Affirmative Action’,” in Discrimination, Affirmative Action and Equal Opportunity, Walter Block and Michael Walker, eds. (Vancouver, B.C.: Fraser Institute, 1982); Roy Whitehead and Walter Block, “Should the Government be Allowed to Engage in Racial, Sexual or Other Acts of Discrimination?,” Northern Illinois University Law Review 22, no. 1 (Fall, 2001): 53–84; Roy Whitehead, Walter Block, and Lu Hardin, “Gender Equity in Athletics: Should We Adopt a Non-Discriminatory Model?,” University of Toledo LawReview 30, no. 2 (Winter, 1999): 223–49.

⁸For a very different but not entirely unrelated treatment of the pencil, see Leonard Read, I, Pencil (Irvington-on-Hudson, N.Y.: Foundation for Economic Education, 1958).

⁹For an explanation of this phenomenon see Richard J. Herrnstein and Charles Murray, The Bell Curve: Intelligence and Class Structure in American Life (New York: Free Press, 1994); Michael Levin, Why Race Matters (Westport, Conn.: Praeger, 1997).

¹⁰See Gary Becker, The Economics of Discrimination (Chicago: University of Chicago Press, 1957).