State of Innovation

Patents and Innovation Economics

The Flawed Private Property Argument Against Immigration

One of the arguments being bandied about for limiting or stopping immigration is based the idea that all the people in the U.S. have some sort of collective property rights in the land.  As property owners we can decide who we allow on our land and it is the job of government to protect our property rights.

This argument shows a flawed understanding of property rights.  You obtain property rights in something because you made it productive or created it.  Of course you can also trade your rights in something you created for currency and then contract to buy something else, thus obtaining property rights in the item.  Your rights in say land are limited by the activity you undertook to obtain those rights.  For instance, if you farmed the land and say put a house on it, then you have a right to continue those activities and ones reasonably related to them.  However, this does mean that your property rights extend to the center of the earth or up infinitely into space.  It also does not mean you can put a huge pigsty on the edge your land next to your neighbor’s house.  Note this was/is true under common law, no need for regulatory law or home owners’ associations.

Similarly your property rights in land cannot be used to make someone a prisoner, that would be a contradiction of the whole idea of rights.  Natural rights are based on the foundation of self-ownership or self-sovereignty.

Is man a sovereign individual who owns his person, his mind, his life and its products – or is he the property of the tribe …[1]

Capitalism: The Unknown Ideal, What is Capitalism, p 10.

Locke also based natural rights on self-ownership or self-sovereignty.  These ideas are not axioms but derived from observation and logic.[2]  Since you own yourself, you own those things you create, however the limits of your property rights are determined by what you created (made productive) and some practical legal implications.  Similarly, self-ownership means that you can travel freely.  If that was not the case then someone could control where you went, which means you do not own yourself.  In other words that means you a prisoner or a slave.  The logical opposite of the freedom to travel, is imprisonment. 

StatueofLibertyAre these rights in conflict?  No.  Property rights cannot be used to imprison someone or to keep two free people who want to meet or trade from doing so.  There have been cases in which a person sold a land locked plot without an easement.  The courts have uniformly ruled that there was an implied easement, because otherwise land would be an island or a prison and the sale of the land would have to be considered fraudulent.  The sale of the land implies being able to use and access the land.  This idea was incorporated into Homestead Act.  Public roads or thoroughfares were built into the structure of the Homestead Act.  This concept of freedom to travel is also incorporated into the idea of navigable rivers and the freedom of the seas, which the U.S. and British navies have fought to preserve for over 300 years.

Public thoroughfares are controlled by the government.  The government does not own these public thoroughfares, but it does police them.  The only right that people relinquish to a proper government is the right to use retaliatory force.  This is true in both Rand and Locke.  This means that a proper government cannot initiate force against anyone.  Public thoroughfares are by definition public and can be used by anyone and a proper government cannot stop, question, ask for papers, etc., of anyone unless they are suspected of crime and crossing a border is not crime under a proper government.  To undertake any of these actions is to initiate force.  This principle is part of the US constitution in the fourth and first amendments.

Many people want to scream, “but what about the gulch in Atlas Shrugged”.  First of all, the gulch is private property and that private property did not limit anyone’s ability to travel freely.  Second, the people in the gulch were at war.  Remember that Ragnar Danneskjöld had openly attacked the ships of the nations of the world.  Every person in the gulch took the oath which put them at war with the governments of the world, just as surely as signing the Declaration of Independence.  Ragnar and the people in the gulch did not initiate force against anyone.  For anyone to compare the government of the United States to the gulch is repulsive.  The U.S. government initiates force against its people all the time, from the NSA spying on everyone, to stealing the work of innocent people, to profiting off of civil asset forfeiture, to its theft of peoples’ property rights in land through wetlands and other legislation.  It is also absurd to suggest that the U.S. is at war with every other country in the world.  No armies are crossing our border.  The terrorists are not mounting a war against.  The biggest damage inflicted by all the terrorist attacks on the U.S. by foreigners is their ability to get us to ignore the values that created the U.S.  This damage is infinitely worse than all the damage they have caused including 9-11.

There is a principled solution to the immigration problem and that involves eliminating all welfare (including Social Security and Medicare overtime), ending the war on drugs, and eliminating the income tax system.  The standard retort is that is not practical.  This sort of argument philosophically is the argument of a pragmatist.  The goal of a pragmatist argument is to suggest principles are impractical.  As Hank Rearden told the Wet Nurse “try pouting a ton of steel without rigid principles.”  Do we ever say the principles of physics get in the way of building an MRI machine or a computer or an airplane?  The only person who would make such a statement is a charlatan or a lunatic, but somehow this is considered a reasonable position in the realm of politics and ethics.

Despite this the pragmatist whines that you could never get any of these solutions passed in today’s political environment, so we have to abandon our principles they proclaim.  Really?  Given the scandals surrounding the IRS and the clear case that it is a political agency designed to punish political enemies, it should be easy to make a principled, politically popular stand against the income tax.  This is really a no brainer and the fact that it is not one of the main topics of the republican primaries shows that most people in the GOP have no interest in freedom/capitalism.  There is already a wide spread national movement to legalize marijuana.  It is a political no brainer to tap into this and make it part of a program to eliminate the war or drugs including eliminating the FDA, which has also become politically unpopular.  That just leaves the need to eliminate welfare.  No it cannot be done overnight, but with Obama corporate welfare, the anti-federal reserve movement, the anti-bank bailout movement, it should be easy to make a politically popular case that all welfare is counter-productive or worse.  For instance, it is easy to show that if welfare were really about helping people then we would have eliminated poverty (financial) a long time ago.  Tying these ideas in with the fact that welfare provides a perverse incentive for foreigners to come here and not work, should be an easy political position to sell.

The fact is that the anti-immigration position is a political loser in any national election.  The people who support this position are in a minority as Ed Hudgins convincingly explains in his book The Republican Party’s Civil War.  Even the pragmatic argument against immigration and free travel fails by its own perverted standards.

The pragmatist argument is not really about being practical it is used to hide a collectivist or xenophobic agenda.  Anyone who continues to push a border wall, or a national ID card, or any other limits on the immigration and travel of people across the US border can no longer pretend they are freedom.



[1] Rand in other places states that Rights are based on the right to life.  She necessarily had to mean the right your own life, to be consistent with inalienable rights.  It is clear that she was not opposed to the idea of self-ownership and did not see this inconsistent with the idea of natural rights.  It is also easier to understand natural rights from a self-ownership point of view than a right to (your own) life.

[2] It is beyond the scope of this paper to explain the derivation of natural rights by Locke and Rand.


September 20, 2015 - Posted by | Blog


  1. Laws covering “real property” (real estate) are broader than those covering personal property (cars, clothing, furniture, etc). Don’t confuse the types of property.

    Comment by Winston | September 21, 2015 | Reply

    • I am not confusing them. All proper laws on any property are based on what is created and in fact with land, the rights are actually less than most personal property.

      Comment by dbhalling | September 22, 2015 | Reply

  2. Let’s assume you are a land owner bordering Mexico. People cross your property line which is identical to the U.S. border. People who cross your property line within the United States can be charged with trespassing. With open borders and without designated ports of entry people from Mexico could trespass with impunity. As a land owner you do not want your gates left open, your land trashed with refuse and your crops trampled or stolen. How do you address this issue?

    Comment by Dale Netherton | September 21, 2015 | Reply

    • No that is not true. Just like people who live in the US,, you are not allowed to trespass. That is a straw-man argument.
      However, I am aware of that this is real problem for ranchers and farmers. Why is it a problem? Because we have highly restrictive travel laws.

      The correct answer to all the legitimate immigration problems lies in a pro-freedom solution that eliminates welfare, the war on drugs, and eliminates the IRS.

      Comment by dbhalling | September 22, 2015 | Reply

  3. Yes, the welfare state should be eliminated. But I recall from an Objectivist lecture by Peikoff, (and Ayn Rand may have been present and listening at that one, I don’t
    remember for sure) the remark that diseases can be carried from one locality to another. That being the case, there should be a medical examination required, in case
    the person entering is contagious. Also, if there is evidence, perhaps there should be some kind of check to make sure the entering person is not a criminal or a

    Comment by Jill Joybelle VanSise | September 22, 2015 | Reply

    • Yes and if I cross a county line or a state line the same might be true This path leads to tyranny A proper government can only use retaliatory force (Rand and Locke). Stopping someone for any reason is the use of non-retaliatory force. That does not mean that the person cannot be held liable if they make a bunch of people sick negligently.

      Comment by dbhalling | September 23, 2015 | Reply

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