When I was younger, there was a gentleman who often rode his bike around our neighborhood and would constantly try talking to my sister, whom he had a liking toward. I don’t remember liking him very much. On one such occasion, while he was talking to my sister, I heard him use a curse word. Being the good defensive brother that I was, I called out to him in pristine prophetic fashion, “the Bible says not to cuss.” His scholarly response nearly threw me off my steeple with its abrasive precision, “Oh yeah? Well, the Bible says you’re dumb.” As I contemplated whether he was actually correct, he rode off in frustration. I don’t think he appreciated me getting in the middle of his “pursuits”.
I walked away from that situation having learned a valuable lesson, namely, that “the Bible says so” is not a very convincing argument. The reason being that not everyone accepts it as a legitimate authority over their lives. When it comes to the task of how we should order our life, simply referring to an inscribed authority, when people disagree on the inscribed authority, is not a sufficient argument. Many conservatives, invoking the similar “the law says so”, it seems, have not learned this valuable lesson.
Considering recent events, it is becoming increasingly clear that the Democrats are fashioning political scandal out of the current child separation policy that was solidified by the Florence decision under the Obama administration. The aim is clear: fashion a catch-22 for the sitting President to further paint him as a monster, or, if he refuses to operate within the catch-22, force him to dispose with enforcing immigration entirely, thereby undercutting the single issue that propelled him to the presidency.
Daily Wire’s Ben Shapiro makes precisely this point, saying, “they didn’t care all that much about separation, because when the separation is rectified, that too is awful. All those on the Left really want is the full release of all illegal immigrants with children. End of story.” The rhetorical hammer here is obviously to say that Democrats don’t actually want to enforce immigration law. Republicans like Ben Shapiro are quick to point out this apparent horror of releasing all these job-seekers with children on unsuspecting America to mutually exchange labor and store of value.
In the final calculation, however, this argument is overstated. This isn’t truly the Democrats’ aim. In fact, just last week, three Democrats put forward legislation to abolish ICE, only to vote against it when the Republicans brought it to the floor for a vote. While the Democrats are betting big on a bluff hand, trying to buy the pot the libertarians have been calling on a full straight, daring everyone to show their real hands.
Libertarians have no problem admitting to the world what their true aim is: the full abolition of immigration restrictions; not just for families, taking it one step further than the Democrats, but all free individuals. The backing for this radical position will not be found in examining the political minutia of the current era, as important as that is, but in asking a simple question: is this law moral? This is really the foundational question for the libertarian. As with so many other mainline libertarian stances, such as taxation, known as theft and conscription, better known as slavery, we must deconstruct the Orwellian speech to understand what we are really advocating. When it comes down to the final analysis, we are not actually talking about enforcing laws against illegal immigration; we are talking about aggressing against free individuals, in the name of law and order, for traveling without permission. Put this way, the conversation becomes quite simple: Is it wrong to keep someone from traveling onto public, unowned territory? The consideration of someone’s immigrant status, whether or not it is the law, is simply irrelevant to the ethical question.
There are many responses to this position in defense of kidnapping free traveling individuals, all of which are weak, but the one that is the most precarious is the appeal to the law. Let me list three reasons why.
The logic is clearly circular
The entire conversation revolves around what the law should be, so it is nonsensical and unhelpful to say “it’s the law” and “immigrants should follow the law” as if this settles the issue. As noted above, this is practically identical to the Christian, in response to an atheist questioning religious principles, saying “it’s in the Bible.” Of course it’s in the Bible. No one is doubting that. The question at hand is, is it right that it is in the Bible? No matter your stance on spiritual matters, it must be admitted, at the very least, that this is not a convincing response. In the same way, in a conversation that comes down to a jurisprudential matter, no one is doubting what the law is, the question is what should the law be?
It forces you to defend the indefensible
It wasn’t too long ago that slavery was codified into law, and no one would argue that that in any way merited its existence. In fact, the record of fugitive slave laws are a lot more relevant than many are willing to admit on this issue.
Consider the history: In 1788, the U.S. Constitution comes into force containing clause 3 of Article 4, stating essentially that slaves escaping the borders, and therefore the jurisdiction, of their state, remained the property of their masters regardless of the laws in the newly arrived state of residence. The Fugitive Slave Act of 1793 further allowed masters to enter the jurisdiction of another state and reclaim an escaped slave upon proving it to a judge, as well as creating penalties for any who interfered.
But this was not enough, for in 1850, another law was passed. This law was like the first, except that it further enlisted the officials of the state to use its resources to aid in the recapture of runaway slaves by raising the penalty of not arresting a suspected runaway to $1,000 and providing additional incentives for doing so.
It should be noted that during all this legislation, the northern states were resisting and nullifying the federal law at every level. It is precisely because of this resistance that more laws were necessary.
None of us today would doubt the moral superiority of resisting such a law that demands the return of a slave to his oppressor. We scoff at people from this time that justified their actions by appealing to the rule of law, yet we do the same thing. It was the masters of slaves and the supporters of that barbaric institution that were making these very same arguments. For the man that would make an appeal to the law and then rest his case, he is not in very good company.
It will be said that that these two offenses are not comparable, since the slave is the victim of a clear evil, while the immigrant is traveling without permission. Furthermore, we are talking about state borders, not a country. But these details are irrelevant to the principle: No matter which way you slice it, in both cases you have a person seeing a better future by entering into a different jurisdiction and doing so without violating anyone’s rights. The similarities are uncanny. The only notable difference is that we seem to have lost of spines when it comes to nullification.
It suggests that the government is the creator and distributor of rights
The law exists to protect the rights of a government’s citizens. Government precedes law, and rights precede Government. Laws are simply those officially-stated obligations of government by the government to protect those rights which already exist. It does not escape the imagination that a law might get it wrong and improperly protect rights which don’t exist or invade rights which it doesn’t acknowledge.
To end your argument of what is just with what the law is, obviously implies that no wrong has been done as long as the law is followed. This leads to an understanding of the government and the laws it creates as the necessary originator and distributor of rights, which is a terrible way to ground morality. This is exactly the reason that the Declaration of Independence grounds rights, not in government which is temporal, but in a Creator, which is eternal. A government that creates rights can also take them away.
Certainly it can be admitted without controversy that some good and moral arguments supporting immigration restrictions may exist. But a mere appeal to the law can’t be it.
* Tyler Maas works in the meat packing industry and is pursuing a Bachelor’s Degree in English. He is co-administrator of the Libertarian Gentleman and enjoys reading and writing about Libertarian Philosophy, Religion, and Manhood.