Wednesday, July 28, 2010

The Rules of Laws

The courts are attempting to rule on the Department of Justice lawsuit against the Arizona immigration law in the days leading up to its implementation on July 29th. This is but the first of many challenges that have been filed against this state legislation by both the government and by interested parties around the country, and one would expect that state lawyers will not soon see relief from their labors for some time to come. 

What seems to have become lost in the debate on this particular piece of legislation however is the concept that this country is one which follows "The Rule of Law". Now this concept, for those who have never bothered to consider its implications, simply means that neither the position of individuals or of governments shall be held to be above the laws of the land. The concept was posited at least as early as the days of the Greeks, and by no lesser an individual than Aristotle. 

During Medieval times, the concept was identified with the Code of Justinian from the Holy Roman Empire and the signing of the English Magna Carta in 1215. And even though the latter at least, did not provide the protections to the common man that many seem to think, it did at least provide some relief to barons from the abuses of a monarch. 

Later still, James Madison, the father of our Constitution spoke of the rule in Federalist 57, saying that a legislature can, "can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society". Nowhere is any mitigation for this concept seen either in the writings of the Founding Fathers, or in the Constitution itself. In fact, specific provision was made in this founding document which limits and defines the government methods to change improper or onerous laws, up to and including changing the Constitution itself (by making Amendments)

I therefore fail to understand how the current discussion of the immigration law seems to justify the attempt to make a certain group of people exempt from such law. We are asked to forgive the violation of such laws because violators have been here so long. Yet many laws already have a "statute of limitations" which prevents the state from prosecuting a person from legal violation after a certain period of time has passed, and immigration law is not one of them. We are asked to forgive the violation of such laws because those doing so only seek a better life for their families. What other laws should we forgive for such benevolent reasons: bank robbing, kidnapping, petty theft? We are asked to forgive such violations because they are after all, only misdemeanors and require no punishment. What other misdemeanors will also be forgivable without further punishment: drug possession, drunk driving, spousal abuse? 

Of course when viewed through the window of such cold logic and using reason as a basis for discussion, such comparisons seem ludicrous. In fact, many of those same compassionate people are calling for increasing enforcement of many of the offenses that I list. Additionally, mandatory minimum sentences have now been made part of law for many such violations in order to remove from the judge the potential for compassion or leniency for violators. 

Also seemingly forgotten in the discussion is the fact that two previous opportunities were provided (in federal law) for legal immigration mechanisms for those in this country illegally. It was promised by Congress that each of these opportunities would solve the problem and would begin the process of stricter enforcement. Yet only the most foolish would believe that they were successful or that stricter enforcement did in fact follow, and those making any claim of belief have no good answer as to why if they were a success, further relief is now required. 

If we are a remain a nation living under the rule of law, we do not get to pick and choose those that we will ignore. While there are stupid laws out there that cannot be enforced, they are still laws until changed. While there are probably more laws on the books at every level of government than can be enforced by all of the enforcement officers in the country, there are mechanisms that can be used to add enforcement or eliminate laws. 

If we are to abandon the principles of governance in this country however, if we are allow selective enforcement for compassionate reasons, if we are to allow the demeaning of one of the principles by which the government functions by that government itself, can we not allow the government and the people of Arizona to similarly choose which laws they will enforce and ask that the federal government not interfere with such choice and drop the frivolous suits?


Roland Hansen said...

I find your well thought out approach to this polarizing social issue in American politics and public policy to be extremely refreshing.

mud_rake said...

Neither major political party wants to tackle the illegal immigration issue- each for different reasons [although neither wish to stir the hornet's nest at all if they can avoid it].

I think that the Arizona hubbub is worthless pap which was resurrected by the far-right wing in order to coalesce the constituents into a singular, united bloc for the upcoming November elections.

The law's 'worthlessness' is based on conflict preemption under the Supremacy Clause; thus the 'effort' to pass this state law serves only as a catalyst of aggregation for those on the far-right side of the political spectrum.