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A Meditation On The Morality Of "Illegal"

by Paul Donnelly

That is pretty tall cotton for an immigration essay. But the whole point of the immigration debate revolves around getting "beyond legal and illegal", does it not? Calls for amnesty or "legalization" (a distinction without a difference) ask that millions who broke the law should be forgiven their trespass; opponents of amnesty invariably insist no, that the laws should be enforced.

But is that right?

This is fundamentally a moral question which seems more appropriate to a theologian or an ethicist than to immigration lawyers and policy wonks, of course. As the late Congressman Sonny Bono observed of the debate over illegal immigration: ""It's illegal" what is there to talk about?"

It is perhaps significant that Bono was a not a lawyer.

Responding to the Anti-Assimilation President, ILW.COM reader Dave Anderson of Georgia asked: "I wish you would write about the "sacred totem" of the anti-immigrant crowd which many of our congressmen seem to have adopted. I'm writing about "we can't reward those who have broken the law."

"Why not? It's done every day. We've just got a lot of people who have bought this idea without thinking it through. "

So, let's think it through.

The basic distinctions seem to be first, between those who insist the law is the law and must be obeyed, and those believe that immigration law is so complex there is no such thing as an "illegal alien" as ILW.COM contributor Cyrus Mehta put it. The moral problem with this approach is that if all laws were like this, there would be no law.

Second, there are those whose argument does not depend on the options available to foreigners with good lawyers, but on moral premises that are superior to the law. Los Angeles' Archbishop Mahoney famously observed: "If the question is between the right of a nation to control its borders and the right of a person to emigrate to seek safe haven from hunger or violence, we believe the first must give way to the second."

The moral problem with this is simple: refugees and asylees are different from immigrants. The former, we will not turn away, if they are truly fleeing danger. The latter, we have invited. But the difficulties created by failing to make that distinction are harder to see and for that reason, all the more difficult to avoid.

The United States accepts refugees and grants asylum primarily to lead the world. It is Never Again, squared, never again should the world stand by and watch another genocide as we did in the Holocaust (although of course we have), and never again should the world allow generations to grow up in refugee camps, as we have in the Palestinian camps in the Middle East. So the goal of refugee policy is not within the United States, but abroad. It would be wrong to send people back to be murdered, and to fail by example to lead other nations to protect those at risk.

But the primary goals of immigration policy are all entirely within the United States. We welcome immigrants because it is good for us; that's why we invited them in the first place. It is not wrong to refuse to invite someone you don't want, although it is wrong to invite someone and not let them in, nor welcome them.

Third, there is the proper moral position toward an unjust law: it must be challenged directly, and changed. The truly important political totem isn't an appeal to American generosity, e.g., let in immigrants because they need safe haven. Nor can it be to economics, because however much immigration advocates want to wish away or alter the 1997 National Research Council report New Americans, Economic, Demographic and Fiscal Effects of Immigration, it concluded that economically immigration is of minimal, even marginal significance, and primarily creates winners AND losers.

No, the truly potent totem is the values Americans have in common with immigrants and immigration: and those are primarily moral, not economic, much less political, and certainly not cultural.

So a significant moral problem in the immigration debate is essentially intellectual: a lack of the clarity necessary to make courage out of convictions. To make sense, make the right distinctions. Put another way, if we can't make the right distinctions, we're not making any sense.

Ethics makes a difference between a thing that is wrong in itself, and a thing that is wrong because it is forbidden. There is nothing inherently immoral about driving on the left side of the road. But it is not simply dangerous, it is also morally reckless to drive on the wrong side of the road, no matter which side of the road that is.

So hiring someone who wants a job at a legal wage under standard working conditions is not wrong in itself, but a very good thing for all concerned. Yet if the worker is not legally authorized for employment in the U.S., that is a thing which is not only legally but morally wrong, not because it is wrong in itself, but because it is forbidden, exactly the way driving on the wrong side of the road is morally wrong.

But this is not true of the union of husbands and wives, parents and small children.

Veracity becomes relevant here, and not merely in the sense of verification. Politics is a branch of ethics after all, and for at least the past twenty years the enforcement of employer sanctions has turned on the political fight over worksite verification. Opponents raise civil libertarian objections to a national identity card, with nominally Christian conservatives especially manipulated by corporate lobbyists with ugly appeals to revulsion for "bar-code tattoos", and the like. The result has been to blur the crucial distinction between something wrong in itself which is actually required by the law, and that which is wrong only because it is forbidden by the law.

In the Clinton administration Mark Reed, the former INS chief literally for middle America, was essentially forced to resign because he sought to enforce employer sanctions. The reaction of immigration activists to Reed's efforts was telling: Reed was going after large employers with substantial numbers of illegal workers using false identification. This was a true conflict, the goal (codified in law) of employer sanctions to identify and fine employers who could be proven to know, through the sheer volume, that they made a practice of hiring illegals, was exactly what immigration activists objected to.

But employer sanctions was not repealed. Compare the separation of nuclear families, outlawed and exiled by current law.

Strategically, immigration advocates have never wanted to raise the values issue at the core of the nuclear family, because that would make two tactical differences. The first is between nuclear families (husbands, wives, parents and young children), and extended families (siblings). Since at least the Hesburgh Commission report in 1981, immigration reformers have proposed eliminating or trading off the extended family category of the siblings of U.S. citizens, in order to deliver on the nuclear family categories for the spouses and minor children of legal permanent residents. Tactically, immigration advocates have argued that this would be fatal to the former, yet they have never managed to find another way to deliver on the latter.

And the backlog of outlawed and exiled nuclear families remains immorally high.

The second tactical road not taken is to parse the politics of family-based immigration from employment. Even the Daschle-Hagel bill which, finally!, proposes to make the nuclear families of green card holders an unlimited category, still connects it to a guest worker program on a model which has always failed.

Leave aside the moral confusion that puts illegally obtaining a job on a par with a legal husband bringing his wife to sleep in the same country that has invited him, but not her. Just consider the political failure of this confusion.

"Civil disobedience exists to remind us that it is not always the case that law is moral," points out Jack Miles, the Pulitzer prize winning author of "God: A Biography" among other excellent books, and one of the world's leading theologians. "There is an important difference between trying to change the law, and trying to evade the law."

"When abolitionists assisted slaves to flee their masters in the days of the fugitive slave laws, they were breaking the law, but they were acting morally. Similarly with those who disobeyed the segregation laws in the civil rights movement," Miles says, noting that he has been meditating on these matters in the debate over same sex marriage.

But Miles, like many others, points out that the sheer ambiguity of immigration law in practice, the lack of bright lines applauded by lawyers, erodes its essentially moral foundation: the distinction between evading the social choices imposed by the law, and making them.

But perhaps the worst consequence of that moral failure is the political myopia it causes. "If you have the integrity of a Martin Luther King, to go to jail when the time comes, that changes minds and can change the law," Miles observes. But there is a fundamental difference between the strategy of civil disobedience practiced the civil rights movement to reform the integrity of the law, and the tactical confusion of contemporary immigration advocates, which is directly related to a self-righteous failure to make moral distinctions.

Consider the recent fiasco at the private home of Karl Rove, President Bush's top political advisor. Immigration advocates calling for passage of the DREAM Act, regarding education benefits for illegal residents, had sought a White House meeting with Rove, who put them off. It seems likely that in a confused way, the advocates thought they were following Dr. King's example, who wrote in his "Letter from the Birmingham Jail" that he had "nearly" come to the conclusion that the great obstacle to equality in America wasn't the Ku Klux Klan, but the "moderate". Why? Because, King wrote in the margins of a newspaper, because it was the only paper he had: "I feel the need to be free now."

Unable to wait for a meeting with Rove, nor to change his political calculation that the President's conservative base is not all that interested in the DREAM Act, advocates staged a demonstration at his home going so far on a pleasant spring Sunday as to pound on the windows. To get rid of them, Rove finally let two activists into his garage, where he gave them two minutes worth of his anger at their blundering.

It does not seem likely that Rove will be more inclined to advise the President that giving in to the folks who made the kids in his house cry in fear is a good idea.

Making kids cry in fear is a thing wrong in itself. It isn't wrong because it is forbidden. But more than that, it is simply stupid politics. And that political stupidity is rooted in moral myopia.

What King and so many others did through civil disobedience was confront Americans with the immorality of the law, by contrasting the obviously wrong-in-itself of jailing people demonstrating for their natural rights, with the law's immoral action in prohibiting those rights. It was brilliant politics.

That could be done for outlawed and exiled families, but it cannot be done regarding employment of illegal workers. It can be done for the illegally resident kids of those workers. But without making the moral distinction between family values and economics, immigration advocates lose focus.

The reason is that any society can choose to set rules regarding employment and immigration; those are fundamental to sovereignty, to even being a free society. To the extent a society cannot rule itself, it is not free. (Whether those rules are good is a separate question.)

But, please Archbishop Mahoney, the right of foreigners to seek a better life is not superior to a free society's choices for itself. Those choices may be wrong, but it is the society's right to make them. Yet for a society to set rules that welcome a husband only without his wife, or welcomes a parent to make a living only if he or she does not also bring the children they are living FOR, is morally wrong in itself. A society has the sovereign right to do it, but that does not make it right; it is always wrong.

For lack of such moral clarity, immigration advocates have all but handed away the most powerful political tool available: the public's sense of right and wrong.

About The Author

Paul Donnelly writes about immigration and citizenship. He can be reached at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.