The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
If you follow debates over immigration, it is hard to avoid arguments for restrictionism that analogize a nation to a house or a club. Such claims are ubiquitous in public debate, and are sometimes advanced by professional political philosophers as well. The intuition behind these analogies is simple: As a homeowner, I generally have the right to exclude whoever I want from my property. I don't even have to have a good justification for the exclusion. I can choose to bar you from my home for virtually any reason I want, or even just no reason at all. Similarly, a nation has the right to bar foreigners from its land for almost any reason it wants, or perhaps even for no reason at all. All it is doing is exercising its property rights, much like the homeowner who bars strangers from entering her house. In the words of a leading academic defender of this theory, "My right to freedom of movement does not entitle me to enter your house without your permission… so why think that this right gives me a valid claim to enter a foreign country without that country's permission?"
The club analogy is similar: The members of a private club can choose almost any membership criteria they want, and exclude anyone who does not meet them. For example, my friends and I could establish a club limited to baseball fans; fans of other sports are barred. If a member loses interest in baseball and becomes a basketball fan instead, he can be expelled. Just as club members have broad power to set membership criteria for their organization, so nations have the power to restrict membership in their "club." And in both cases, the criteria can be almost anything that the club decides them to be.
I. The House Analogy and its Sweeping Implications.
Many people find the house and club analogies to be intuitively appealing. But they quickly fall apart under scrutiny.
The house analogy appeals to the notion of property rights. But, as Georgetown political philosopher Jason Brennan points out, it actually ends up undermining private property rights rather than upholding them:
When we close borders, we aren't doing the same thing as putting fences around our houses. Suppose there is a neighborhood made up of 10 landowners. 8 out of 10 of them vote to keep out all foreigners. 1 out of 10, Larry, votes to let them in because he wants to rent his house to them. 1 of them votes to let them in because he's a decent human being, but he doesn't himself plan to rent his house. When the 8 put up a fence around the neighborhood, they don't merely keep immigrants off their own property. Rather, they keep the immigrants off Larry's property, against his will.
Far from protecting property rights, immigration restrictions abrogate the rights of property owners who want to rent their property to the excluded migrants, associate with them, or employ them on their land. This is an interesting result, given that many immigration restrictionists are also conservatives who strongly support private property rights in other contexts.
Perhaps, however, the government is a kind of super-owner that has the right to supersede the decisions of private owners whenever it passes a law that does so. On that view, the state has all the same rights over land within its jurisdiction as a private owner has over his house. And when the two types of property rights conflict, the state prevails.
Restated in this way, the house analogy could indeed potentially justify almost any immigration restrictions a government might choose to set up. But it can also justify all kinds of repressive government policies that target natives, as well. If a state has the same powers over land within the national territory as a homeowner has over her house, then the state has broad power to suppress speech and religion the rulers disapprove of. After all, a homeowner has every right to mandate that only Muslim prayer will be permitted in his house, or that the only political speech permitted within its walls is that which supports the Republican Party. The same logic would justify all kinds of other illiberal and oppressive policies, as well, so long as a homeowner could adopt the same rules within her house. Ironically, the house analogy argument for immigration restrictions—most often advanced by those on the right—has the same kinds of dangerous implications as the traditional left-wing argument that government can override and restructure property rights as it wishes, because it supposedly created them in the first place.
In a democratic society, the extent of the resulting oppression might well be less than in a dictatorship. Still, the house analogy would justify suppression of religion, speech, association, and other behavior that the political majority disapproves of.
Perhaps a democratic society would limit some of the illiberal consequences by establishing constitutional rights against them. But if the house analogy is valid, such guarantees are not morally required. They can be granted or withheld at the discretion of the government. In the same way, I can choose to let people who disagree with my political views enter my house, or host religious services for faiths I disapprove of. I could even promulgate rules guaranteeing freedom of speech and religion on my land. But I have no moral duty to do so.
II. Problems with the Club Analogy.
The club analogy has many of the same flaws as the house analogy. It too would justify a variety of illiberal and oppressive policies. After all, private clubs can and do restrict membership on the basis of speech, religion, and other similar criteria. Like the house analogy, the club analogy ends up justifying policies that trample on private property rights.
In addition, there are crucial differences between a government and a private club. The latter includes only members who join voluntarily and agree to follow all of the club's rules. If members wish to leave the club, they can do so while retaining all of their preexisting property and other rights. The justification for the club's broad power to set membership criteria and expel violators is that it is a consensual organization. No one has to join it unless they have consented to it.
By contrast, governments are not consensual in anything like the same way. Most people do not choose to accept the domination of the government they live under; they are instead born into it. Even in a relatively free society that allows emigration, it is difficult for citizens to fully escape the rule of their government. Emigration is costly, and does not enable the migrant to take all of their property (especially land) with them.
Democratic governments are more consensual than authoritarian states, but not nearly as much so as the club analogy assumes. Unlike genuine private clubs, every real-world democratic state was initially established in large part by coercion. For example, the American Revolution that established the United States prevailed only because the revolutionaries successfully coerced the substantial minority of Loyalist supporters of the British Empire into accepting the new government or, in many cases, fleeing. Black slaves had even less opportunity to meaningfully consent than white loyalists. That does not necessarily mean that the Revolution was unjustified or that the United States should not exist; despite its nonconsensual aspects, the new regime was preferable to the old. It does suggest that the US government is not meaningfully analogous to a genuinely consensual private club.
Most people would take a dim view of a private club that proclaims everyone within a 100 mile radius has to be a member whether they want to be or not, and is therefore subject to all club rules. If such a mandatory club should exist at all, it at the very least should not be given the broad powers permitted a voluntary organization. As philosopher Michael Huemer explains, are much more like mandatory clubs than voluntary ones. When a genuinely consensual club asks you to join, it has to take "no" for an answer. The state usually treats "no" as if it were just another way of saying "yes."
Political theorists and libertarian activists have sometimes imagined governments established through genuinely consensual processes more akin to those by which clubs are formed. Perhaps such a government really would be analogous to a private club, and be entitled to exercise all the same rights. But, sadly, there are no such club-like governments in the real world and we are unlikely to see one established anytime soon.
Rejecting the house and club analogies does not by itself justify open borders immigration or anything close to it. There are many other arguments both for and against immigration restrictions that do not depend on these tropes. However, the quality of debate over these issues would improve if we recognize that it is a mistake to assume that nations are meaningfully similar to houses or clubs. They are not, and it is dangerous to ignore the difference.