A dubious theory held by some libertarians has been knocking about. It goes something like this:

The claim that government-controlled land is actually unowned—and thus not properly subject to government rulemaking—would lead to consequences that reasonable people would find abhorrent. Therefore, in the U.S. case, such land should be regarded as owned by Americans with the government as their representative. While privatization is the best course, it is unlikely to occur anytime soon. In the meantime, the government should make policy as though it were a private owner or the agent of private owners. For example, if the politicians think that private owners would want to restrict immigration, that is, keep them off the land, the politicians should do that.

Is government-held land owned or unowned? It is not a simple question. As Simon Guenzl reminds us, some of that land was obtained from its rightful owners by force through eminent domain. Those owners or their heirs could probably be identified. But much government-held land was obtained not by theft but through preemption. Since the government forbade and continues to forbid homesteading, the land has never had private owners. Hence, no owners could be identified. (The complicated matter of the Indians must be reserved for another day.) Guenzl thus distinguishes between state-claimed land and state-seized land.

Stolen land should not be regarded as unowned; it was taken from its owners. The government took it by force (even if it paid some cash), and now it is owned (controlled) by the government—but illegitimately.

What about the never-owned land? Is it unowned? Control is at the core of ownership. The government controls the land. Therefore, it makes more sense to regard it as illegitimately owned rather than as unowned. (How to privatize state-held land is not today’s topic.)

Reasonable people will agree that the consequences of treating government-held land as unowned would be substantially negative. The homeless, drug-soaked, unsanitary encampments on public parks and sidewalks have degraded life in some “progressive” big cities. Responsible, self-supporting individuals and their families can’t simply walk to shops and enjoy other amenities. That should not stand. Protest demonstrations have sometimes blocked major roads, impeding ambulances and the normal conduct of life.

We may thus regard the unowned status of government-held land as seriously problematic, and I am happy to reject it. The question, then, is: having rejected that status, must we prefer that the government make policy as though it were the private owner?

I’m not sure what that means, but I can’t see how it would be possible under any interpretation. Sometimes it’s said to mean that the government ought to act on behalf of the true private owners. “How would private owners want the land to be used?” I’ve already shown that much of the land never had owners. The state would have to imagine how private owners, had they existed, would have wanted the land to be used. But how can politicians and bureaucrats know that? Maybe those imaginary owners wouldn’t want schools or libraries on their land.

With government-seized land, a similar problem would confront the policymakers. Moreover, why assume that all the dispossessed owners (if alive) would want the same thing? The socialist-calculation problem is relevant here. People don’t really know what they will do until they confront alternatives, prices, and opportunity costs of particular circumstances. How arrogant for the politicians to presume to know what hypothetical people would want! How realistic is “the collectivist notion of the state [making policy] that emulates the market decisions and choices of the taxpayers?” Walter Block and Anthony Gregory write. Not very, I say.

A further problem plagues this approach. Along with the federal government, state, county, and local governments have seized land under eminent domain. Why should the federal government make policy for those lower levels of government, which would also be obliged to legislate on behalf of hypothetical owners? It’s an all-around mess.

So where do we go from here? Again and alas, privatization is off the table for now. (How to privatize government assets is no easy question; thankfully, I don’t have to deal with it today.)

Before answering my question, I’ll raise a matter that is closely related: safety. Part of what governments at all levels have done is reserve to themselves the power to safeguard the people they rule. To be sure, governments endanger us all the time, but they also protect us in various ways, however ineptly. Some police activity protects innocent people from murderers, rapists, and thieves. Politicians have a (self-)interest in this. I remember a button that libertarians sold at conventions: “Don’t Steal. Government Hates Competition.” Officials will tend to want to discourage private criminals from attacking us if for no other reason than they want the booty for themselves. Plus, they want to be re-elected.

Since the government has forced itself on us as our protector, it seems obligated to carry out that function (in ways that don’t further violate individual rights). Here’s an imperfect analogy. A pilot friend with a small plane takes you on a flight. At 10,000 feet he informs you he’s about to parachute home and leave the flying to you, whom he knows can’t fly. (Some friend.) I submit that this would be a serious breach. The same with a surgeon who opens his patient’s chest and then decides he’d rather be playing golf.

Similarly, if the government, without notice, closed all the police departments and courts without giving us a chance to form private protection agencies, we’d be in a right fix, especially the poorest, most vulnerable parts of town.

Thus, the government owes the taxpayers protection from private aggression. Among other things, its agents may properly keep public facilities free of real threats, for example, adult strangers using a bathroom in a public school. Further, the state is obligated to forbid aggressive interference with peaceful people who use the facilities as intended. Protest demonstrations that block streets are properly banned, not because of their views, but because others have a right to use the streets too. Noisy, grossly unwashed people may be excluded from public libraries. And so on. (As always, hard cases can arise.)

But assertions of state power that have objectives other than safe and appropriate use should not be allowed to sneak in under what I call the “nondisruption principle (NDP). Immigration control is an example. The general power to restrict immigration is unrelated to keeping “public” facilities safe and usable.

Concerning “public” property, then, we have two conflicting standards for how the government should behave. The first is that it should minimize its own aggression against non-aggressors, whoever they are, and permit the maximum peaceful use of “public” facilities as they were intended to be used. If you violate no one’s rights, you’re okay.

The second standard is that the government should seek to represent the hypothetical owners of currently government-held land. As we’ve seen, that is impossible. This standard is often invoked to justify restrictions on immigration, but it could easily license state aggression regarding drugs, guns, gambling, prostitution, and religion, restrictions libertarians rightly oppose. There is no limiting principle. Once you allow the standard to control immigration, you have no grounds to oppose it in other matters. The second standard is tantamount to assuming the government legitimately owns all the property it controls.

Defenders of the second standard will try to defend their position by claiming that people who have not paid taxes in the past have no claim to use public facilities now. That proves too much. Interstate travel entails people using facilities they have not contributed to previously. Children have not paid taxes. In fact, today’s taxpayers once used the facilities before they had paid any taxes. Were they free-riding? But here’s another problem: people who relocate (from wherever) will, alas, soon start paying sales, excise, income, property, and gasoline taxes and hence contribute to the upkeep of the facilities, including those they’ll never use.

So, is it the case, as some have said, that libertarians have nothing reasonable to say about public property except that it should be privatized—that there are no right answers in a statist world? Resoundingly, I say no.