Recent events—particularly the consideration of the DREAM Act in the lame duck session of Congress—have reignited America’s argument over what should be done about illegal immigration. That debate is of great importance for our country not only because of the need to find a just, prudent, and humane solution to the problems posed by illegal immigration, but also because of the way it shapes the public’s beliefs about more fundamental issues. In fact, the rhetoric employed by both sides in this debate tends to emphasize partial truths and thereby undermines the possibility of a fully nuanced public understanding of the rule of law.
The most fervent and rigid opponents of illegal immigration stress its illegality. They oppose any solution that includes an amnesty on the grounds that such a solution would make a mockery of justice and law by rewarding lawbreaking. This position has some merit, but, to borrow an expression from Aristotle, its partisans fasten onto a part of justice but not the whole.
In general, it undoubtedly tends to undermine the rule of law when those who have violated any law escape unpunished. For that matter, the issue posed by a legal amnesty is even more problematic, because it involves the public authority allowing those who are known to have broken the law to escape unpunished.
Nevertheless, it is not the case that an amnesty for lawbreakers is never permissible even in a society seriously committed to the rule of law. No less a proponent of the rule of law than John Locke held that government could legitimately decline to punish some crimes. After all, the purpose of the law is not only to punish the particular injustices committed in individual cases, but also to secure the common good of the whole community. Sometimes more damage to the common good comes from a rigorous insistence on legal punishment than would result from a policy of forgiveness.
By including a pardoning power in our Constitution, the framers of that document demonstrated they had grasped the wisdom of this element of Locke’s teaching. The government of the United States has historically exercised this power of prudently withholding punishment even from serious crimes, and has done so in ways that thoughtful people, calmly reflecting after the events, have approved. For example, President Ford pardoned President Nixon on the belief that a public trial of a former president would inflict unnecessary harm on the country. Those who took up arms against the United States in the American Civil War surely did more harm to the nation than illegal immigrants have done. Still, the government did not insist on prosecuting all Confederate officials and soldiers for treason—as the law would have permitted—because it was believed that a policy of leniency would lay the groundwork for a lasting civil peace.
If the considerations and precedents discussed above are to be taken seriously, an amnesty for illegal immigrants would not necessarily make a mockery of the rule of law.
The other side of the immigration debate latches onto a partial truth as well. In response to the inflexible demands of the anti-amnesty crowd, citizens that are more sympathetic to illegal immigrants and more supportive of amnesty as one component of “comprehensive immigration reform,” stress that most illegal immigrants have come to America only “seeking a better life.” Such rhetoric, however, tends to undermine the respect for positive law that is essential for any stable and flourishing society. It thereby poses an opposite, but no less serious, problem than that posed by the rhetoric of the legal rigorists on the other side.
In the first place, to say that illegal immigrants were only seeking a better life is to say that they were seeking some real good when they chose to break the law. This is true, but it is of limited relevance, because it is surely true of almost all lawbreakers. As Aristotle observes at the beginning of his Nicomachean Ethics, all men do everything for the sake of what is held by them to be good. The vast majority of human wrongdoing is done in the pursuit of genuine goods. It is the work of people pursuing permissible goals by forbidden means. One could say of most any thief that he was seeking a better life by his very crimes. To this extent, the rhetoric of those who favor an amnesty tends to create a presumption in favor of leniency for all lawbreakers.
The supporters of amnesty might well disclaim such consequences. They might hold that they do not intend to suggest that wrongdoing undertaken with a genuine good in view is to be dismissed as unimportant. Rather, by emphasizing that most illegal immigrants came to America only in search of a better life, they are trying to say that there was nothing intrinsically wrong in their decision to enter the country unlawfully. This is certainly true. Our immigration laws are merely positive law, with no direct natural law underpinnings. That is, they are based on no necessary moral truth that it would be unjust for the law to omit enforcing. Sometimes, the law reflects and enforces such a truth, as in the case with laws against theft and murder—actions that would be wrong even if the law did not forbid them. In other cases, we are confronted with things that, in Aristotle’s formulation, could reasonably be resolved one way or another, but only become just or unjust because the law determines the matter. In such cases society decides to forbid some action because the prohibition seems in some way useful, and not because it is forbidden by natural principles of right and wrong. Laws against illegal immigration surely fit into this category.
Precisely because entering the country without permission is not an inherently unjust action, the possibility of forgiveness, of non-enforcement of the law—that is, of amnesty—raises less difficult questions than would be raised by forgiveness of criminal actions that were also intrinsically immoral. Nevertheless, and contrary to what is implied by the easy resort to the reassuring claim that illegal immigrants came to America only “seeking a better life,” it is not the case that forgiveness for such lawbreaking poses no difficult issues. After all, any society depends for its well being on a host of merely positive laws, laws that regulate human actions with a view to a certain uniformity that could be justified as a social convenience, but that is in fact necessary to any healthy social order. Disregard even for such laws—especially when that disregard is publicly promoted—threatens a socially destructive anarchy.
For example, the obligation to pay a defined amount of taxes is an obligation of the positive law. There is certainly an important underlying moral precept—namely, that those who benefit from the services of the government have an obligation to support it to the extent that they can. Nevertheless, there is no natural moral precept to determine exactly how much any particular person should pay in taxes. The matter is determined entirely by the positive laws enacted by the government. Accordingly, one could truly say that a person who conceals part of his income in order to partially avoid taxation has done nothing intrinsically wrong, and that he has acted in pursuit of a “better life.” He may think that he and his family need the money more than the government does. But no one would suggest that such considerations call for an amnesty for tax cheats. For, as anyone can see, a tax system in which individuals are implicitly authorized to decide how much they will pay, in violation of the law’s requirements, is a short cut to social chaos.
Consider another example: the licensing of physicians. It is not strictly necessary for government to license physicians to practice or to punish those who practice without a license. Therefore, a man who does practice medicine without a license cannot be said to be doing anything intrinsically wrong. On the contrary, if he possesses real skills, but simply failed to complete the requirements for licensing, he may be doing a great deal of genuine good by healing the sick. Nevertheless, it would be folly to suggest on these grounds that it would be unjust for government to punish such a man. For the licensing requirement is intended not to prevent whatever good an individual might accomplish by practicing medicine without a license, but to ensure an overall high quality by requiring it. And that good could not be attained without enforcement of the licensing requirement against all who violate it, even those who may possess real medical qualifications.
Laws regulating immigration are analogous to those requiring the payment of taxes or the licensing of physicians. They regulate actions that are not themselves intrinsically wrong but that, if left unregulated, would in the aggregate threaten considerable harm to society. There is nothing wrong in moving from one country to another, but a country has many reasons to regulate such immigration. It must set limits, and such limits are of no effect if they are not enforced.
Our arguments over illegal immigration are framed in the simple terms to which the citizens of a democracy are naturally drawn. As Tocqueville observes, democratic citizens are often the slaves of political slogans because the very busyness of democratic life, the need of citizens to work to support themselves, precludes their ability to pay careful attention to political questions. Yet, as Aristotle observed, the kinds of things to which democrats are naturally drawn are not the things that are most useful in preserving democracy. The sort of public discourse to which democrats are most inclined is not the kind most likely to reveal the path of prudence. That path can only be found by resisting the temptation to moralistic sloganeering and beginning a full consideration of the ethical and practical aspects of all possible policies. Only by striving for such an elevated and serious public discourse can we both find the right way with regard to immigration but also preserve the mature understanding of the rule of law necessary for us to maintain a just and stable public order.