Some libertarianish and conservatives types sometimes like to think of the territory of the U.S. as a big piece of real estate over which citizens have a kind of shared property right. There are lots of things that are wrong with this way of thinking, especially for people who think their philosophy is grounded in a strongly moral conception of property rights. Perhaps the primary flaw in the national-territory-as-collective-property schema is that very little U.S. territory was gained legitimately. Mostly it was gained in the way political territory is generally gained: war, theft, and purchase from thieves. Some worry about the fact that the Louisiana Purchase was unconstitutional. But why not worry instead about the far more troubling fact that the French state could not have been the legitimate owner of large swathes of land already owned by natives? Can James Polk’s brinkmanship really be principle that determines that I have a stake in what happens in in Portland, but not in Vancouver?
I understand that this is the way the territories of kingdoms, principalities, and states are formed. Colonial criminality drew the map. That’s the way it is. No turning back. But shouldn’t we be long past the idea that these traces of regrettable history have truly weighty moral significance–that the Treaty of Guadalupe Hidalgo or the Gadsden Purchase somehow create deep moral facts about where some human beings should and should not be able to go?
Can you give some examples of this kind of thought? I haven't heard such a stark position being advanced.
I am under the impression that most think it is just to exclude outsiders on an instinct that the outsiders and their families and ancestors have not “paid for” and are not “paying for” the country. A nation-state operates kind of like a food coop where citizens have to provide some services to derive the benefits from the country. How the territory was gotten is not as important as how the institutions and infrastructure of the country were built and defended.
I think this is horseshit, but it seems less arbitrary than the position that you're arguing against.
Addendum: Are you thinking of someone like Ron Paul?
Given that personal property rights are all parasitic on the laws of states, doesn't this same problem, if you think it's one, flow down to claims about personal property? You can only live where you do because the land was stolen from the Indians, so if the US didn't have rightful title to it, how can you?
I'd think so. I've always wondered why property-focused natural rights-type libertarians don't act like this is more of a serious problem for them.
One of the objections presented to me about Kerry's immigration position she presented at her lecture last week was that the Constitution gives the government the right to limit migration. I would guess its the Constitutionalist-libertarian crowd that gives so much deference to the constitution and its writers (and their *intent*) are the ones who have to get themselves out of their pretzel logic on this issue. “Those days are gone forever //
Over a long time ago, oh yeah”
As a legal matter, in common law jurisdictions, the person in possession of property will, after a certain length of time, be recognized as the owner, even if there originally was a problem with their claim. The legal issue of the taking of the land from the Indians is also more complex. This doesn't go to the philosophical question, unless that question is predicated on the law as it actually exists.
This is actually should be a sticky question for Constitutionalist-libertarians. Insofar as libertarians tend to be textualists, the Constitution gives no authority to anyone over the movement of persons into the country, save for the fact that it eventually had the power to outlaw the importation of slaves. The Constitution only explicitly grants the authority to the Congress to make rules for naturalization. The Supreme Court, as I recall, came to the conclusion in the Chinese Exclusion Cases that the Congress had power over immigration because within international law, a state has the sovereign power to control who may enter its territory, the Framers necessarily meant that the US would have such power, otherwise the sovereignty of the U.S. Constitutional state would be less than the sovereignty of the international legal state, which could not abide. Thus, U.S. sovereignty, vested in the executive and legislative branches expanded to fill out the gaps, as someone had to have this surplus power. I think this is kind of strange. Within international law, a state can be acting in accordance with its own internal law but be in violation of international law, and vice versa. Why the Supreme Court came down the way it did is mostly a question of political expedience, rather than a solid textual interpretation of the law. Of course, when the Constitution was adopted, no state actually did anything to control their borders. That didn't really start until the Napoleonic Wars, I think.
There's no moral grandeur here. Marshall put it fairly well in Johnson v. M'Intosh:
“Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government, and whose rights have passed to the United States, asserted title to all the lands occupied by Indians, within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the title which occupancy gave to them. These claims have been maintained and established as far west as the river Mississippi, by the sword. The title to a vast portion of the lands we now hold, originates in them. It is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it.”
To grant title is not to deny the past, but to reckon with it in all its amoral complexity.
There is no comparing the scale of the injustice, of course, but the expansion of the Sioux across the northern great plains during the 1700s came at the expense of someone's property. Did that aggression vitiate their claims against us?
Another way of saying all this, I guess, is that you're right that no one has “rights” to land in a natural law, let's-trace-everything-back-to-the-origin-of-life way of thinking. Rather, we continue to assert prerogatives over land we won by force and have not yet lost. In doing so, we have created–occasionally at a very dear price–a society some of us quite like, and we are not prepared to part with it to undertake grand anarchic experiments.
What of the normative repercussions? We can't maintain any property rights, because all properties were once obtained by someone illegitimately? We cannot undo wrongs, but we can try to compensate identifiable victims with calculable losses, and then try to avoid such behavior in the future.
Personally, I don't care which workers come into our country. However, because our state isn't entirely comprised of private property (which I wouldn't find desirable), people must contribute to their share of the costs of the streets that others paid for (and we cannot just write it off by saying that “they are probably owed something, due to something someone in our family might have done to one of their ancestors”- Unless we can accept such obscurity in every other government policy that is meant to apportion things fairly, and then expect positive results).
I am not saying that unbalanced “taking” is common for any immigrant group on the whole, but do you feel that it is fair for an individual immigrant to enter the country, and then contribute less money in taxes than he might receive from taxpayers, many of whom didn't want him to arrive in the first place?
I would support an immigration law, where we would let most people in, yet require they buy health insurance for catastrophic events, and pay a reasonable portion of the costs and negative externalities of immigration (immigration officials and forms, pollution costs, etc).
Absolutely no solution will represent an absolute harmony of “just deserts” (to borrow a phrase from your book review). Someone can always demand that we consider an injustice that we had not considered (does the descendent of Incas deserve priority over the descendent of the Spanish Conquistadors, because the former's family was exploited by some Americans' ancestors). Because our variables include all events in human history, there is no Holy Grail of Equity. We can poke holes in every person's desired appropriation of justice, or we can look for a solution that is “just enough.”
I would guess that many of the “natives” that had their land stolen by Europeans & Americans also took their land by immoral means. Let's not make the Noble Savage mistake and assume that the native Americans were peaceful, natural-rights-respecting innocents before the arrival of Europeans.
Is it OK to take land via immoral means from someone else (who also stole the land, or whose ancestors stole the land) if you then set up a mostly just state that for the most part prevents future land thefts (Kelo notwithstanding)?
Disclosure: I'm not a natural-rights libertarian and I don't mean to make a point about immigration policy with this comment. It's just that I think the “your ancestors stole this land ergo you have no claim to it” argument doesn't work because it is impossible to figure out who really deserves what.
The argument – your property isn't your property because it has a history of theft behind it therefore no one can own property – sounds as dodgy as a $9 note. If there was any truth that style of argument then theft couldn't be defined since there's no ownership ability anyway.
To clarify, I'm not one of those who thinks you can't have legitimate title unless you can trace it back through a chain of voluntary transfers to a just original acquisition. I think that view is completely hopeless. My view is much more pragmatic.
No illegal immigration without illegal annexation!
Will, if
(1) the murkiness of tracing a group's moral claim to land ownership means that
(2) we should “redistribute” access to the land by erring on the side of an open immigration policy,
is it also true that
(1a) the murkiness of tracing an individual's moral claim to property ownership means that
(2a) we should “redistribute” access to the property by erring on the side of a vigorous redistributive welfare state?
MK, I I reject the Nozick- or Rothbard-type view, so this is no problem for me, though I think it would make sense for people with that kind of view to endorse your reason. I don't happen to think national territories are like property at all. That's what I was criticizing. To my mind, a system of property is justified by its generally beneficial effects. David Schmidtz's paper “The Institution of Property” makes the argument correctly. The system of borders has no such justification, and in fact it is generally pernicious. On consequentialist grounds, there's no reason to not loosen immigration restrictions. But even those with strong property-rights views should be able to see that borders have a morally questionable status.
An interesting if now-forgotten writer in this vein is Henry George, who wrote one of the most widely-read radical books of the late 19th C., Progress and Poverty (1879). George argued that land could not be legitimately considered private property (because property rights originate in labor and land is not the product of labor) and so insisted that all real property claims derive from, as Will puts it, “war, theft, and purchase from theives.” George was otherwise as laissez-faire as you could ask and wanted to abolish all forms of taxation except a confiscatory tax on land values (“the single tax”). There's a long tradition of this kind of thinking; Herbert Spencer flirted with it early in his career, and the French Physiocrats had similar ideas. George heavily influenced early libertarianism, mainly via Albert Jay Nock, as well as many of the early progressives. There's still a small Georgist movement.
George also theorized that depressions are mainly caused by speculative bubbles on land values. I'm surprised his work hasn't been resurrected a bit in the current crisis.
What about state borders?
By borders, I take it you mean immigration restrictions adhering to borders, and not borders that serve to delineate the physical space of a legal or administrative jurisdiction.
You mean like the border between Iowa and Minnesota?
That's cool. We need bounded administrative jurisdictions. My argument is that the border between the U.S. and Mexico ought to be more like the border between Iowa and Minnesota. Different jurisdictions, different governments, different laws, but no one is keeping Iowans from moving to St. Paul.
I agree with you. It does strike me that the key phrase of the decision, “Conquest gives a title which the Courts of the conqueror cannot deny,” is optional–I can imagine a court that did deny such a title. And it might even happen some day. But I don't think anything in the deep past will ever be revisited that way.
“Given that personal property rights are all parasitic on the laws of states”
Personal property rights, in the form of owning one's own body, owning the food which one gathered, owning tools, owning a dwelling, owning a cornfield, owning a fishing weir or hunting stand, etc., existed for millenia before any state existed. It is the state which lives parasitically off of personal property rights, not the other way around.
Mind you, those who live in the belly of the state will tell you with a straight face that you owe everything them. It is not good for the business of being a parasite, to let one's true occupation be known.
On the other hand, what if invaders B invade and totally eliminate people A such that people A are outright extinct and the ownership lineage is severed? The Bs ought not to have any right to claim ownership but do people C have a right either? The people C might try to argue “well we didn't cause the loss of people A but since the Bs can't have the land either and since the land is now unowned so we get the land by default”?
“Given that personal property rights are all parasitic on the laws of states”
Personal property rights, in the form of owning one's own body, owning the food which one gathered, owning tools, owning a dwelling, owning a cornfield, owning a fishing weir or hunting stand, etc., existed for millenia before any state existed. It is the state which lives parasitically off of personal property rights, not the other way around.
Mind you, those who live in the belly of the state will tell you with a straight face that you owe everything them. It is not good for the business of being a parasite, to let one's true occupation be known.
On the other hand, what if invaders B invade and totally eliminate people A such that people A are outright extinct and the ownership lineage is severed? The Bs ought not to have any right to claim ownership but do people C have a right either? The people C might try to argue “well we didn't cause the loss of people A but since the Bs can't have the land either and since the land is now unowned so we get the land by default”?