Justice, Not Amnesty, for 'Illegal' Immigrants
Granting "amnesty" supposes that a wrong was committed. But an immigrant without papers has done nothing wrong.
It speaks volumes that the dirtiest word in the Republican and conservative lexicon is amnesty. At a minimum, it exposes as a flagrant lie the claim that Republicans and conservatives want to expand liberty and limit government power. One cannot consistently praise the principle, central to the supposedly beloved Declaration of Independence, that "all men [that is, persons, not only Americans] are created equal" while also demanding that the government control some people's freedom to move.
One also cannot claim to be a champion of liberty and limited power while calling for measures to prevent people without papers from finding work or making a home in the United States. Conservatives should be ashamed of themselves for supporting a national database through which employers must run applicants' names when filling job vacancies. So much for the commitment to free enterprise.
Donald Trump makes the most noise about "illegal immigration," which is merely government-speak for people coming here without the permission of politicians and bureaucrats. Americans would object to being forced to carry papers—hopefully. So if all people are created equal, why should some have to carry government papers just because they were born on the other side of an arbitrary line on a map? Trump, as is his wont, falsely claims that were it not for him, no one would be talking about this issue. That's nonsense, of course. For years Republicans have called for a wall along a hyper-militarized border. Maybe Trump wasn't paying attention. Who's surprised?
Regardless, it's clear that the worst thing that can be said about a Republican today is that he or she favors amnesty. Even candidates who oppose Trump's call for mass deportation and who would support "legalization" of "illegals" (after the imposition of fines and a requirement that they learn English) run like hell from the label.
The last Republican debate made this abundantly clear. Rand Paul, who's since left the race, said about Ted Cruz, "What is particularly insulting, though, is that he is the king of saying, 'you're for amnesty.' Everybody's for amnesty except for Ted Cruz. But it's a falseness, and that's an authenticity problem—that everybody he knows is not as perfect as him because we're all for amnesty."
Marco Rubio agreed, as he strove to escape the charge that he supported amnesty when he favored "comprehensive immigration reform" as part of the bipartisan so-called Gang of Eight.
Well, here's the irony: we all should oppose amnesty—but not for the reasons Republicans oppose it. What we ought to do about people without papers is nothing—except to let them live unmolested. That's the only policy consistent with the principles that conservatives and Republicans say they hold dear.
Ammon Shea of Merriam-Webster writes, "Amnesty means 'the act of an authority (as a government) by which pardon is granted to a large group of individuals.' It comes from the Greek amn?stia, a word which means 'forgotten.'"
Granting amnesty, in other words, supposes that a wrong was committed. It's an authority's way of saying to an offender: "We will overlook—forget—what you have done. You are pardoned."
Thus a person without papers is not in need of amnesty: he's done nothing wrong, and so there's no cause for pardoning him. He should simply be allowed to go about his business in (as H. L. Mencken put it) the theoretical land of the free.
At this point, any good conservative or Trumpist would scream: "But he broke the law!"
No he hasn't.
To be sure, the immigrant without papers acted contrary to a statute, a decree promulgated by a legislative body. But law is another matter. (By the way, before someone crosses into the United States from Mexico or Canada, he is outside the jurisdiction of the U.S. government. So can that person actually violate a congressional statute? Perhaps it is only his remaining in the country that violates the law.)
If conservatives really believed what they say they believe, they would not need to have the distinction between law and legislation explained. They would know that lex injusta non est lex—an unjust law is not a law.
Roderick Long, the libertarian philosopher at Auburn University, notes that this principle "was once, and indeed for over two millennia, the dominant position in western philosophy of law…. This doctrine was upheld by Socrates, Plato, and Xenophon, by the Stoics and by Cicero, by Augustine and Aquinas, and by Blackstone as well. The traditional idea was that law must be distinguished from mere force by its authority, and that nothing unjust could have genuine authority." (From "Inside and Outside Spooner's Jurisprudence"; it will download an unpublished paper in Word format).
If anyone prefers an American source, I refer him to Lysander Spooner, a 19th-century natural-law anarchist and abolitionist. In an 1882 essay Spooner defined natural law as "the science of justice." It was, he said, "the science of all human rights; of all a man's rights of person and property; of all his rights to life, liberty, and the pursuit of happiness."
He went on:
It is the science which alone can tell any man what he can, and cannot, do; what he can, and cannot, have; what he can, and cannot, say, without infringing the rights of any other person.
It is the science of peace; and the only science of peace; since it is the science which alone can tell us on what conditions mankind can live in peace, or ought to live in peace, with each other."
A few years later, in a letter to President Grover Cleveland, Spooner noted that "justice is an immutable, natural principle; and not anything that can be made, unmade, or altered by any human power," adding: "It is also, at all times, and in all places, the supreme law. And being everywhere and always the supreme law, it is necessarily everywhere and always the only law." (For a further discussion, see Long's posts "No Law But Just Laws?" and "No Law But the Natural Law?" here. Scroll down.)
So where does that leave our so-called lawmakers in Washington? Spooner replied:
Lawmakers, as they call themselves, can add nothing to it, nor take anything from it. Therefore all their laws, as they call them,—that is, all the laws of their own making,—have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates men's duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. And nobody is bound to take the least notice of them, unless it be to trample them under foot, as usurpations. [Emphasis added.]
If they command men to do justice, they add nothing to men's obligation to do it, or to any man's right to enforce it. They are therefore mere idle wind, such as would be commands to consider the day as day, and the night as night.
If they command or license any man to do injustice, they are criminal on their face. If they command any man to do anything which justice does not require him to do, they are simple, naked usurpations and tyrannies. If they forbid any man to do anything, which justice could permit him to do, they are criminal invasions of his natural and rightful liberty. In whatever light, therefore, they are viewed, they are utterly destitute of everything like authority or obligation.
It is intrinsically just as false, absurd, ludicrous, and ridiculous to say that lawmakers, so-called, can invent and make any laws, of their own, authoritatively fixing, or declaring, the rights of individuals, or that shall be in any manner authoritative or obligatory upon individuals, or that individuals may rightfully be compelled to obey, as it would be to say that they can invent and make such mathematics, chemistry, physiology, or other sciences, as they see fit, and rightfully compel individuals to conform all their actions to them, instead of conforming them to the mathematics, chemistry, physiology, or other sciences of nature.
We can now see that any law requiring government permission to enter territory presumptuously described as being under the jurisdiction of the American State—that is, any regulation of immigration—is, in Spooner's words, a simple, naked usurpation and tyranny.
Since immigrants without papers do not violate the natural law, they violate no law at all. Thus amnesty would be as inappropriate as deportation. To deny this truth is to deny natural rights and to sanctify the injustice that is embodied in the state.
Trump and his rivals insist that if government does not enforce the borders we have no country. Perhaps, but so what? As Patrick Henry said when asserting the rights of Americans before the American Revolution: "If this be treason, make the most of it."
This piece originally appeared at Richman's "Free Association" blog.