The rule of law versus overriding goals

In our era of social media, reasoned dialogue does not fare especially well. Too many of us are tempted to post short pithy memes containing half truths at best, all in an effort to score points against opponents whom we will almost certainly fail to persuade. 

In more than one place I have seen one such meme directed against those who may harbour doubts about the legality of current deportation policies in the United States. It runs as follows: if immigrants failed to respect due process in entering the country illegally, why should they themselves expect to be treated in accordance with due process? On the surface this may sound right to some.  But there is an obvious flaw in this reasoning: what if we were to apply it to ordinary criminals, for example, those who commit theft or murder? It would upend the constitutional guarantee of a fair trial for those alleged to have committed such crimes.

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 such 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, which are heir to the tradition of the common law, Magna Carta, the Bill of Rights of 1689, and a series of precedents which together constitute the shared heritage 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 a set of 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? How do we distinguish between legal residents and illegal immigrants? This is obviously where great care needs to be taken. Cutting corners for a supposedly greater good inevitably leads to miscarriage of justice.

One of the persons who has influenced 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. This is from the first chapter of Political Visions and Illusions, where I unpack Goudzwaard’s argument:

Rather than seeing justice as a norm governing political action from the outset, ideology sees it primarily as a final goal of such action. (Therefore even pragmatism, so often seen as the opposite of ideology, is itself an ideology, given its goal orientation.) 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 laudable, it provides no justification for setting aside constitutional protections for the sake of its achievement.

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 general consensus supportive of constitutional governance.