Immigration III – The Rule of Law
Illegal immigrants violate American immigration laws. America is a society based on the rule of law. If we change American laws to accommodate criminal immigrants, we will be rewarding them. We will be encouraging them to break the law in the future and to scoff at the authority of law in the present. We must resist law-breaking criminals even if their crimes never end. After all, people may never stop committing theft or murder, but that isn’t a reason to stop punishing those crimes.
Or so the argument goes.
First some specificity. Granting amnesty (residency) to illegal immigrants does not incentivize people to immigrate, or to break laws. Immigrants do not break immigration laws merely because they rejoice in criminality. They break the laws because they want to immigrate, and the laws make it too hard to do so legally. The opportunities available to immigrants in America are their own incentive. Immigration amnesty simply decreases the disincentives to illegal immigration. Amnesty does not make it easier to commit murder, theft, or any non-immigration crime (one might say “real crimes”).
The right question is, should we enforce our current immigration laws? Yes, say immigration opponents, because they are the law.
This argument boils down to legal positivism – the unthinkingly amoral idea that what is right is what the law says. Under the doctrine of legal positivism, it was wrong for the American Colonies to revolt against British rule in the 1770s, wrong for black slaves to flee the plantation in the 1850s, wrong for Americans to drink alcohol in the 1920s – and it is wrong for immigrants to ignore immigration laws today.
The solution to bad laws or unjust regimes is to end them. Laws that conflict with our basic moral intuitions will never be made legitimate by brute enforcement. Enforcing unjust laws will make people cynically resent, not respect, the power of law. As I resent it today. As, I would imagine, most illegal immigrants must resent it. What person could love a legal system that treated him like an animal to be caged if caught? Illegal immigrants cannot participate in our justice system. They cannot even pay taxes. The only way to extend the rule of law to their communities is to make them legal.
Murder and theft are obvious violations of human sanctity. The law legitimately attempts to prevent these crimes. But immigration is a crime without a victim. It is a crime that is committed merely by exercising a person’s freedom to live with other consenting individuals. Enforcing these immigration restrictions makes the rule of law enemy to its legitimacy.