Stephan Kinsella should be lauded for his great contributions toward exposing the fraud that is “intellectual property”. This state-enforced artificial-scarcity and monopoly protection-racket is not characteristic of genuine property. This has been the position of left-libertarians for quite a long time and it is nice to see self-described libertarians of other stripes hacking away at the hallowed roots of IP.

However, Kinsella is no left-libertarian—sometimes perhaps, not a libertarian at all! So while we may rightly thank him for his efforts against IP, we must also chastise him from time to time on other matters. I recently came across an old piece he wrote for LewRockwell.com, disgustingly entitled, A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders. In it, he makes an argument for respecting the state’s purported “right” to restrict the movement of peoples (and, by extension, goods) across borders through a line of reasoning that assumes the state’s legitimate authority and ownership of “roads, ports, buildings and facilities, military bases, etc.” His argument is that if we dismiss for a moment the illegitimacy of the notion of “public property” and assume that the government really owns what it claims to own, then it must naturally have a right to put restrictions on usage. He claims that this is “not inherently unlibertarian”.

Speaking of roads, this is a dangerous one to travel. It is precisely this kind of thinking which has led to every expansion of government power. There is an existing evil. We take that as a given and work to find a “solution” within that framework—a least evil. Take healthcare, for instance. The problems of HMOs and managed care, already creatures of the state, spurred a call to rework and expand government control over healthcare. And now that we have ObamaCare, we find calls to restrict the lifestyles of individuals—eating habits, exercise, etc.—because the costs of their choices are now externalized to society at large. This constant drive toward more and more restrictions on our freedoms justified by past restrictions is monstrous and insane.

However, this is precisely the tactic that Kinsella adopts when he claims that,

“Advocates of open-borders/unrestricted immigration are simply those who prefer a certain rule of usage be issued by the feds: that anyone at all may use federal roads, ports, etc. Whereas other citizens have a different preference: they prefer that the feds not allow everyone, but only some people. By having the latter rule, obviously, a version of immigration restriction could be established de facto.

Now I am not so far arguing for the latter rule. I am simply noting that it is not necessarily unlibertarian, as the open-borders types want to maintain. They urge that the illegitimate owner-caretaker of public property use it in this way; others want it used another way. We all agree the rule that really should be adopted is: return the property to private hands. Where we differ is on what second-best rule is more libertarian, or more preferred. Is one second-best rule more clearly libertarian than the other? It seems to me that one useful way to compare alternative rules is to examine the restitution that would be provided by various usage-rules. A rule that generates more restitution for more people is, other things being equal, probably preferable to other rules.

In the case of federal highways, for example, most citizens currently get a benefit from being able to use roads. Is it “worth” the cost of being taxed to maintain the roads, or to pay for compensation fees paid to expropriated or bought-out property owners, or the associated liberty violations? No. But given a rights violation, some restitution is better than none. If the feds announced tomorrow that no rules at all applied to the federal highways, the utility of the roads to most people would fall dramatically, meaning that restitution has decreased. The resource would be wasted. If the feds announced tomorrow that no one could use the roads except the military, then again, this would reduce overall restitution. Some more reasonable rule in between would obviously generate a more respectable amount of restitution than either extreme.”

Before responding, I must note that these roads and other state property are not property at all. They are built with stolen goods. The US is not a joint-stock company. I did not consent to have funds taken from me to be used to construct these roads. I did not consent to have the property of others forcibly taken from them via eminent domain in order that a clear path could be made for them. The state cannot rightfully claim ownership, thus they are essentially abandoned and up for grabs. They rightfully belong to everyone and anyone who wishes to use and maintain them via the homesteading principle. Only private roads can be properly said to be owned.

However, even if we play his game and take public-property and political borders as a given, Kinsella’s attempt to find the “second-best rule” that will provide the most restitution to the most people is absurd. The contributions of individuals (i.e. just how much was stolen from them and how much applied to the roads) cannot be traced back. Nor can he claim that there is a clear distinction between citizen taxpayers and new-immigrants—legal or otherwise. Just as the burden of cost is not evenly distributed among citizens, the benefit of use is not either. Many citizens pay far fewer taxes. Large corporations externalize their costs of doing business to society at large via public roads (the damage done to roads, and the subsequent cost of maintainence, is higher for a fleet of 18-wheelers than for a family sedan). And finally, Kinsella fails to address the fact that unresticted immigration and open borders would not decrease, but instead increase, tax revenue. It is our current system of restricted immigration that has produced a sub-population of millions of non-taxpaying “illegal immigrants” who use Kinsella’s precious roads and swimming pools.

Perhaps it takes an Agorist to appreciate it, but what Kinsella fails to recognize is that, “If the feds announced tomorrow that no rules at all applied to the federal highways, the utility of the roads to most people would fall dramatically” is a good thing! The public would begin to recognize that publicly held assets built with stolen funds are neither optimally maintained nor proportinately beneficial. This would create incentive for market-driven private-property road development and maintainence.

Rather than responding to an existing evil (i.e. state-“owned” property) by restricting the natural right of people to travel, trade and associate with whomever wishes to reciprocate, we would have both freedom to travel, trade and associate and, at the very least, a drive towards the dismantling of the state monopoly over roads and other publicly-owned assets.

Just as in the issue of public healthcare, the solution to the problem is not more government regulation and restriction of freedoms, but less. The proper response to ObamaCare is not legislating the amount of salt in soups at restaurants, but rather repealing ObamaCare. Likewise, the proper response to state-owned property is not immigration control or closed borders. It is the dismantling of the state-ownership apparatus.

Contra Kinsella, the correct libertarian position is not to multiply the evils and injustices caused by statism, but instead, to eliminate them.