America’s experience with Prohibition is routinely cited as an example of why the law should reflect how people actually live.
Today, Prohibition initially appears relevant to our commonly flouted immigration laws. If the American people have accommodated themselves, however uneasily, to the presence of millions of illegal immigrants, isn’t it ridiculous to have laws that do not correspond to life as we actually live it?
Yes, possibly. The day may come when it defies common sense to keep these laws on the books. Drinking alcohol was simply too deeply embedded in American custom to be eradicated by legislative fiat, hence the absurdity of Prohibition – but we are not yet at that point with immigration. Before we abandon our immigration laws, we should work harder to live by them – as long as we still believe that they are based on morally sound principles.
When we say that the law is a teacher, we mean that there is a connection between the law and morality. Yes, the law tells us which procedures we must follow to avoid ending up in court, but it is more than that. The law embodies moral principles based in a transcendent order. Without prior acknowledgment that the law ought to conform to a commonly recognized moral order, we have no grounds to call a law unjust.
The law is always in need of reform to more perfectly reflect justice – that is, an objective, authoritative ideal. This all sounds terribly abstract, but all I’m saying is that while the law has to have some prudential basis in lived experience, we should be reluctant to change basic laws without serious deliberation in light of established principles. Absent that, the law amounts to little more than rules by which we agree to live so that we can get what we want.
Broadly speaking, U.S. immigration law depends on the idea that the common good depends on the American people being able to decide who gets to come into the country, live here and work here. Do we now believe that the free market, which expresses not ideals but consumer preferences, should be the final arbiter of this critical question? Or do we believe that our government – and, in turn, we the people – should act in ways that conform to the laws we already have, and the ideals they express?
How we approach this elementary issue of legal philosophy is important, because it defines how we think of the common good, our national purpose – and, ultimately, who we are as a people. The common good is not an infinitely elastic concept reflecting the sum total of private preferences at a given moment. The common good is something grounded in a set of core beliefs that prescribe duties to fulfill and standards to meet.
Which raises the question: Do we judge the law, or does the law judge us?
Under our constitutional system of government, the answer is, “Both.” But to approach these questions as if discrepancies between society’s preferences and the law’s demands should, by default, be resolved on the basis of the crowd’s will alone is to yield to tyranny of a vulgar sort. It makes desire the ultimate arbiter of social order, implicitly denies the moral authority of the law itself, and finally undermines the rational basis for our common life.
I recently read an anecdote about students at a state college who wouldn’t walk on the sidewalks, but rather cut a footpath through the grass. Eventually, the grounds crew sensibly put a sidewalk where the students had accustomed themselves to walking. Who cares where sidewalks go, anyway?
But get this: The person telling this story was an activist for change in her church, who used it to explain to sympathizers why they shouldn’t wait for church authorities to respond to their demands. They should do what they want to do anyway, the activist counseled, and eventually the laws of the church would have to change to accommodate them.
The idea is that her group would prevail not because they rationally appealed to justice on the basis of shared moral principles, but because they exercised power that legitimate authority would not or could not resist.
Of course, the path this church might follow was far more consequential than the route students took to class. So is the path our country will follow forward through history as a result of immigration.
It’s a sign of political decadence that we’re allowing immigration law to change not by democratic deliberation and moral suasion – think of Martin Luther King Jr. and his campaign to overturn segregationist laws favored by local majorities – but rather by popular neglect and civic disengagement.
Rod Dreher is a Dallas Morning News editorial columnist. E-mail: [email protected]