ICE and the rule of law

In the polarized atmosphere south of the border, I have heard more than one person ask an important question relevant to American immigration policy: if illegal immigrants have failed to respect due process in entering the country, why should they themselves expect to receive due process? Despite its superficial logic, there is an obvious flaw in this reasoning: if we were to apply it to accused thieves and murderers, for example, it would upend the constitutional guarantee of a fair trial for alleged lawbreakers.

In the current sweeps conducted by United States Immigration and Customs Enforcement (ICE) agents across that country, some people are being deported or threatened with deportation based on faulty knowledge of their actual status. One recent report in the San Francisco Chronicle concerns Miguel Silvestre, who was born in Stockton, California, but more than once has been targeted for removal, based, it appears, solely on his name and ethnic roots. He is not the only American citizen inadvertently caught up in the ICE raids. Moreover, noncitizens legally in the country have also been targeted for removal.

Until recently, I assumed that the rule of law was firmly rooted in the political cultures of the English-speaking countries, uniquely heir to the tradition of the common law, Magna Carta, the Bill of Rights of 1689, and numerous precedents which together are the shared birthright of our several countries. A key principle of this heritage is that the law applies to our rulers as much as to ordinary citizens, who enjoy constitutional protections against abuse by government officials. Such protections apply as well to non-citizens who have entered the country legally. Moreover, even illegal immigrants must be treated in accordance with their shared humanity. How do we know who is who? Great care needs to be taken to distinguish rightly between legal residents and illegal immigrants. Cutting corners for a supposedly greater good inevitably leads to miscarriage of justice.

A major influence on my own writings is Bob Goudzwaard, the Dutch political economist who died last year at age 90. Goudzwaard’s analytical framework formed the basis of my own treatment of political ideologies in Political Visions and Illusions. According to Goudzwaard, we know we are in the presence of an ideology when its proponents are willing to subordinate ordinary means to an overriding goal held to be important enough to justify them. I unpack Goudzwaard’s argument in the first chapter of my book:

Rather than seeing justice as a norm governing political action from the outset, ideology sees it primarily as a final goal of such action. . . . The relevant question thus becomes, not whether the state is acting justly, but whether it is acting so as eventually to achieve justice. Under the latter approach, justice becomes an ideal located somewhere in the future, and whatever one does in the here and now is permissible if it serves the ultimate attainment of this goal. One can safely put aside for today the immediate issues of justice, as long as current means are serviceable to a better tomorrow. Future justice can therefore be seen to excuse present injustice (16).

The overriding goal of current US policy appears to be to ensure that only legal residents live in the country. That puts the best spin on it. Some, however, have darker suspicions: current policy aims at a whiter America, with ICE disproportionately targeting hispanics and other non-Anglo people irrespective of whether they have the right to be there. Although there may be something to the latter interpretation, let’s assume that the former is correct. Even if the larger goal is legitimate, there is no justification for setting aside constitutional protections to accomplish it.

The rule of law must be maintained for the sake of public justice and the long-term health of the polity. If it is allowed to die in the hearts of our fellow citizens, efforts to revive it will be exceedingly difficult and may take as many generations as it took in the past to achieve a favourable consensus supporting constitutional governance.