Whatever Mileage We Put On, We’ll Take Off

Stephan Kinsella:

Even if private property owners were not prohibited from inviting whomever they wish onto their own property, the guest would have a hard time getting there, or leaving, without using, say, the public roads. So merely prohibiting non-citizens from using public property would be one means of establishing de facto immigration restrictions. It need not literally prohibit private property owners from having illegal immigrants on their property. It need only prevent them from using the roads or ports – which it owns.

Note: the above quotation and link is not intended as a claim that Stephan ultimately supports state immigration laws or closed border (see comments) but to compare the argument he describes in light of other considerations.

Roderick Long (mp3):

Suppose that you homestead an area like this [draws square] and then I come along and homestead an area like this [draw a larger, concentric square]. You want to leave your property now. And I say, “Sorry. Unless you have a helicopter or something, you’re not leaving; or at least you’re not leaving unless you pay me a heck of a lot” or whatever. Is that legitimate? I would say no, I don’t have the right to interfere with your coming and going and so I have to allow you some form of getting onto and off of your land. In law, this is known as an easement.

It seems to me that if you hold the latter to be the right position then it would be difficult to hold the former position without some creative juggling. Long’s position, which does seem prima facie correct, would apply to the following case:

Say Stephan lives on a plot of land in Uttar Pradesh and Roderick wants Stephan to come to his plot of land in Santiago, Chile (I just picked some fun sounding places that are really far apart, nearly antipodes in fact). Now imagine that every conceivable plot of land or square mile of ocean between them is owned. Can Stephan not be allowed to visit Roderick and vice versa? I see no reason why the size or complexity of the barrier should have anything to do with allowance covered by the general easement concept.

Let’s say that Stephan has an easement to get to the airport near him and flies to the Santiago airport. All the airports along the way give him permission to be there (after all, that’s how they make money). Standing in the taxi line, a taxi driver with permission to drive on the road to Roderick’s place gives him a ride. Now at Roderick’s, Stephan would like to go exploring the wonders of Santiago. It looks like Stephan is really in no different position than Roderick at this point, the only difference being that Roderick can make Stephan leave his plot. Whatever methods, agreements, contracts and easements Roderick can use or make, Stephan can use or make.

It is difficult for me to see how a de facto immigration policy could develop if anyone on the interior of the supposedly closed off area granted permission to an outsider. So if there is a person who wants to go somewhere and another person that wants them there, Roderick’s argument appears to require a path from A to B. Now what the details are and how it all works out is anybody’s guess, but anything resembling the de facto immigration policy that Stephan describes would only exist in the case where no one on the interior of the area under discussion wanted anyone to come in. That’s not very robust and would probably best be described as de facto open borders in the general case and de facto closed borders only in the exceptional case.

It is also unreasonable to expect that someone would have to prove the existance of the person granting them the permission (e.g. “Papers please?”). This would imply that if some free-roaming person is moving along a public road, there is good reason, given what roads are for, to assume they are going somewhere they are allowed to be and that as long as they “move along now” that there is no real issue. Easements don’t even mean that you shouldn’t still be able to seek compensation, as long as that compensation isn’t so great as to stretch the meaning of easement beyond recognition. Easements, I expect, would tend to take the least obtrusive form. Roads and undeveloped land, even if owned, by their nature are going to be less obtrusive means of moving people along than asking people to jump through hoops (perhaps literally). Telling someone they can’t use your road but must instead convince his neighbor to let you pass through his house (I’m reminded of Ferris Bueller’s race through people’s backyards to beat his sister home) would be pretty uncivilized and likely to lead away from the minimization of conflict that is always touted as a foundation for private property. If you want to own roads, then I think there is an argument to be made that you accept the nature of roads as “paths of least resistence” in situations where easements are needed, i.e. where these roads are surrounded by less transportation-conducive forms of property.