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Moving Beyond Immigration Rhetoric

Conversations are essential to human well-being. Consider Tom Hank’s character in the film Castaway. Isolation exposed what he had previously taken for granted – his social nature. The humanity in Hank’s character particularly craved conversation, so much so that he memorably began talking to Wilson – a face painted on a volleyball.

Oddly, as our world has grown digitally interconnected, it appears that we find in ourselves a growing sense of isolation. And this isolation seems to be polarizing. One cannot spend much time on social media without wondering what is going on there. Perhaps perceived anonymity online causes some to forget that they are talking to (and about) other human beings. And God help us if controversial topics are posted in a friend’s status line on the social media feed. Should I “un-friend them” or block their posts? In this world dominated by tweets, selfies, and instagrams – we are facing real danger of finding ourselves stranded, isolated, and alone.

It is very refreshing to enter a digital space intentionally designed to nourish our humanity by bringing us together in Respectful Conversations. I am grateful to Harold Heie for his invitation to participate in this month’s conversation, and I am also grateful to Matthew for his willingness to converse with me.

One of the very special things about this project is the fact that I know I am having a conversation with someone who shares my commitment to honor Christ. We intend to share thoughts regarding an important and challenging topic, and will likely demonstrate that it is possible to disagree respectfully. I hope this conversation enables us (and others) to discover how Christ might be honored through thought, reason, and communication. I especially look forward to reading Matthew’s essays, reflecting on, and responding to them.

Rhetoric – A Conversation Killer

Our conversation this month was initiated by an invitation several months ago to discuss the Christian perspectives regarding the topic of immigration. Harold has provided four leading questions to guide our conversation:

(1) Are current immigration laws and deportation practices just?;

(2) If so, why?;

(3) If not, why not, and what changes should be made?; and

(4) Is there a way for Christians and Christian churches to respond to undocumented immigrants that will avoid harm to both undocumented immigrants and citizens? 

These are all important and challenging questions, and they are impossible to answer with a #hashtag or in 140 characters or less. Rhetoric, not reason, thus reigns over social media battles regarding immigration. Rather than engaging our minds, many, on all sides of the immigration wars, put passion on display, invoke their preferred catchphrase, minimize or mock their political opponents, and impute to all who disagree asserted biases justifying writing off those who might disagree as bigots. This is the rationalization process of our social media culture used to dismiss those who ask questions and then attempt to answer them with reasoned arguments. Conversation is reduced to catchphrase: the wall; Dreamers; the Travel Ban; Sanctuary Cities; and so on. As I see Christians deploy these catchphrases on their social media feeds I can sense Screwtape’s delight as he picks up his smartphone and #raisesanothertoast.

Catchphrases are powerful rhetorical devices. Which is why politicians (of all sorts) deploy them. Catchphrases stir up passions. Unfortunately, human beings often reason poorly when consumed by passions. Catchphrases may secure votes, but at the expense of finding answers to questions concerning immigration law and policy.

In the preface of their book Welcoming the Stranger: Justice, Compassion & Truth in the Immigration Debate, Matthew and his co-authors rightly observe there can be no progress in conversations regarding immigration until we move beyond rhetoric. I agree. But it is very important to note that rhetoric is deployed on all sides of this debate. Our President has reduced the debate to one word – wall. His opponents have their own – dreamers.

It is even possible for Christians to reduce biblical text to something like a catchphrase. “Welcome strangers” becomes an ethical mandate used to justify jettisoning law (or justifying demands for “comprehensive” reforms). The dangers of being deceived by (or deploying) rhetoric is the same for believers and unbelievers alike. 

As an initial matter, then, I want to make clear my understanding that the point of this conversations is to move beyond rhetoric in the immigration conversation. Progress in this conversation calls on us to engage reason, and by reasoning together about the questions we’ve been asked to discuss we just may make discoveries leading us to greater understanding. Along with Matthew, I seek to gain more knowledge in this conversation. As we share our thoughts, informed by the knowledge we have already acquired, in pursuit of greater understanding of issues pertaining to immigration law and policy the conversation may lead us to discovery. Ultimately we seek together to discover something true. Discovery thereby produces knowledge, and knowledge is a crucial part of wisdom. In the words of Proverbs, “An intelligent heart acquires knowledge, and the ear of the wise seeks knowledge.” (Prov. 18:15 ESV).

What if our conversations regarding immigration led us to wisdom? Wisdom refuses to reduce the conversation to catchphrases. Wisdom refuses to marginalize those who disagree. Wisdom refuses to minimalize, always recalling that this conversation is real, and practical, not mere theory. Wisdom refuses to be held captive to passion. Indeed, wisdom is the pathway to righteousness and a step toward our citizenship in heaven. So let us begin the pursuit of knowledge of immigration law and policy.

Asking (and Answering) the Right Questions

Questions regarding immigration law and policy are practical questions. These are questions relating to the real world and the human beings in it. Only the prudent will be able to answer such questions. In other words, examining immigration law and practice requires us to seek wisdom by first acquiring understanding of what immigration law is. What is the content of this law? Why was it created? These questions will lead us to a number of other interconnected issues pertaining to life in human community.

In his recent book Just Immigration: American Policy in a Christian Perspective, Dr. Mark Amstutz, reviews and critiques many recent Christian studies and statements regarding immigration. He argues that many Christian statements and position papers “are based on insufficient analysis of existing immigration conditions and policies. In other words, they emphasize biblical morality, but they contain little political science.” I agree. And as I hope to demonstrate below, Christians who offer book, chapter, and verse arguments in support of “comprehensive immigration reform” would do well to step back and first consider questions of jurisprudence (for example, the law of unintended consequences).  

Before accepting Harold’s invitation to participate in this conversation, I proposed narrowing our conversation’s focus to discussion of a more specific resolution.[1] Specific resolutions focus conversation and highlight potential disagreements. And resolutions also invite discovery and action. Open-ended questions, on the other hand, tend to obscure disagreements and avoid precision. In my experience, one of most significant challenges to meaningful, indeed respectful, conversation is contemporary reluctance to engage well-defined, precise questions. Instead, we ask questions laden with disputed terms, ignore the dispute, and soon end with chaos rather than knowledge.

So, then, if Matthew and I do not first identify disputed terms in our leading questions then we will not be engaged in conversation. We will just be talking at each other, not with one another. Even worse, open-ended questions tend to invite informal fallacies to join the chat. Rhetoric has room at its table for straw men and ad hominem attacks, but truth (and justice) in the immigration debate will not be found there.

Put differently, in order to move beyond mere rhetoric and answer our first leading question (whether current immigration laws and practices are just?) any reasonable person must acquire a great deal of information before he can engage in reasoned conversation.

This first question requires one seeking answers (whether Christian or non-believer) to confront a complex and interrelated set of practical issues regarding law, international relations, political legitimacy, sovereignty, and justice. It is only after considering these questions (and investing oneself in seeking the knowledge to understand the terms of the question) that one can begin to articulate answers. And at this point we are ready to begin considering whether our faith supplies unique answers to these practical questions.

Dr. Amstutz identifies some of the issues necessarily implicated in any meaningful conversation regarding immigration law and policy. “The concerns of border security,” he writes, “are only one small dimension of a very complex and multidimensional policy concern: namely, what should the policy toward foreigners who wish to come to work and live in the United States? Should the United States welcome an unlimited number of immigrants? If not, what should the annual ceiling be? And what should be the policy toward those who have entered the country unlawfully or have entered lawfully as tourists but have decided to remain in the United States?”

All of us who wish to meaningfully engage in the immigration debate (Christians included) face a challenge of fortitude: are we willing to count the cost of asking difficult questions? Are we also willing to invest ourselves in seeking to understand the issues and find answers? To do so, we must humble ourselves (on the left and the right and everywhere in between) and gain a better understanding of the of the issues related to immigration policy. This is the reason why legislative fact-finding hearings ought to be held prior to the act of legislating.  And, for Christians, the love of Christ (for His Kingdom and for our neighbors in it) compels us to step up to the plate of this difficult task of asking the right questions before proposing solutions in the name of Christ.

The Challenge of Defining our Terms

To illustrate why asking the right questions is such a difficult task, consider what is required to meaningfully answer our first leading question.

The question invites us to discuss whether “current immigration laws and deportation practices are just?”

Several things will be required to answer this question. But as explained above, we must start by clearly defining our terms. Specifically, (1) we must identify the content of “immigration laws” in order to know what law we are examining; (2) we must determine what is meant by the addition of the word “current” immigration laws; (3) we must identify and define precisely the “deportation practices” currently being used. It is not possible for us to evaluate law and practices without the facts.

So what is “immigration law”?

The factual inquiry (of identifying immigration law) cannot begin until it is first established whose “laws” and “deportation practices” are to be examined. It is my assumption that Matthew and I are discussing immigration law as it exists in the U.S. legal system. But this assumption also highlights the first ambiguity in our leading question. Many nations have immigration laws, and we could consider whether the immigration laws of Mexico, Canada, or Japan are just. Likewise, we could be examining religious laws pertaining to immigration (such as portions of Shari’a). But is my assumption that both Matthew and I are asked to evaluate the immigration laws of the United States.

Assuming that we are conversing about U.S. immigration law, the starting point for anyone seeking to understand U.S. “immigration law” is the United States Constitution.  Without the U.S. Constitution there is no U.S., and without the U.S. there is no federal immigration law to debate. This fact illustrates one of the complexities hidden within the conversation regarding immigration law. Immigration law, like other legislative action, rests upon sovereignty established by the political compact establishing the law-maker’s authority. It is my assumption that Matthew affirms the legitimacy of the legislative powers established in the U.S. Constitution, but I will look forward to reading his essay to determine if this assumption is sound.

Moving further toward comprehension of U.S. immigration law one discovers that the United States Constitution’s Supremacy Clause establishes federal law as the “supreme law of the land.” Additionally, although the Constitution does not mention immigration, Congress is granted power in Article I § 8 cl. 4 to enact legislative “to establish a uniform Rule of Naturalization.” 

Using this power, Congress first enacted federal immigration law in the Naturalization Act of 1790. Congress significantly narrowed this Act in 1795, and then amended the Act numerous times. The Civil War, and the Civil War Amendments to the Constitution (particularly the fourteenth Amendment), significantly altered the constitutional landscape undergirding U.S. immigration law. Over the next several decades, a number of amendments and acts resulted in a wide-array of varying immigration related statutes.

In 1952, Congress determined that comprehensive immigration reform was necessary. Congress pulled all the then existing immigration statutes together in The Immigration and Nationality Act of 1952 (the INA). The INA was passed by the Congress over President Truman’s veto. Congress, responding to calls for comprehensive immigration reform, is presently debating whether significantly reform the INA. But as of now, the INA remains current federal immigration law.

Since 1952, Congress has amended the INA on multiple occasions, and Presidents from both parties pushed these legislative reforms. Amendments to the INA include the Immigration and Nationality Act Amendments of 1965, the Refugee Act of 1980, the Immigration Reform and Control Act of 1986, the Immigration Act of 1990, the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Each of these legislative amendments were democratic responses to perceived legislative concerns. They are now incorporated into what is considered federal “immigration law”.

In addition to these legislative acts, several Presidents have issued executive orders pertaining to immigration. These executive actions are considered by many to be part of “immigration law”. President Obama’s 2014 Deferred Action for Childhood Arrivals executive orders, for example, created the basis for the “dreamers” program. President Trump’s threat to use his executive power to revoke these prior orders has already generated litigation.

And this leads us to another complexity in defining our terms. Are cases (and the resulting precedents) considered part of “immigration law”? Many people consider the rulings of courts to be “the law” (although, this view of judge-made law is the basis of many significant jurisprudential disputes which we discuss with our first year law students in our Foundations of Law course). For purposes of this conversation, the question is whether we should include recent cases in “immigration law”. For example, should we evaluate whether the Supreme Court’s decision to deny certiorari review of ninth circuit’s decision in the DACA case was just?

The effort to identify U.S. immigration law is not yet complete because Matthew and I are faced with the complexity of dual sovereignty in the U.S. legal system – the co-existence of State and federal law. We need to know whether “immigration law” includes the immigration laws and deportation practices of State and local governments. Should we identify and include State laws (and the law of the District of Columbia) extending State licenses to undocumented immigrants in the category of “immigration laws” mentioned in our first leading question? Should we identify and discuss city ordinances declaring that the cities located within the United States will refuse to enforce federal law and thereby become sanctuaries for those violating federal law?

The point is that meaningful conversation about whether immigration law is just requires accurate definition of the term immigration law. We need to know what we are evaluating. Definition is the starting point. But in modern conversation we (often) fail to define our terms.

Tolkien humorously illustrated this point in The Hobbit:

“Good Morning!” said Bilbo, and he meant it. The sun was shining, and the grass was very green. But Gandalf looked at him from under long bushy eyebrows that stuck out further than the brim of his shady hat.

“What do you mean?” he said. “Do you wish me a good morning, or mean that it is a good morning whether I want it or not; or that you feel good this morning; or that it is a morning to be good on?

Is U.S. Immigration Law Just?

After defining our terms, our first leading question invites us to evaluate. Are current immigration laws just? Are current deportation practices just? Note, again, failure to accurately identify the content of immigration law precludes meaningful evaluation of it, even if we have agreement on the meaning of justice.

And this last point leads to a very significant challenge embedded in our first leading question. Many (Christians and non-believers alike) fail to recognize (or acknowledge in conversation) that justice is itself a disputed concept. Before we begin utilizing “justice” as a standard to evaluate the content of law requires, identification of the nature of justice.   

In Whose Justice? Which Rationality?, Alasdair MacIntyre observed that our post-Enlightenment culture is filled with competing, and often inconsistent, narratives regarding the nature of justice.  When Matthew, or I, (or you) evaluate whether immigration laws are just, which account of justice should we use as the standard? Are we to employ an Aristotelian account of justice? An Augustinian account? Perhaps we ought to engage the synthesis achieved by Aquinas? Or should we be more pragmatic, or perhaps more liberal? Maybe we ought to evaluate the immigration laws and deportation practices we’ve identified in the light of Rawls’s Theory of Justice.

Failure to consider competing conceptions of justice is where many of our conversations regarding immigration (and many other issues) collapse. Assuming we are careful to identify the content of immigration law, asking whether law is just requires one to carefully articulate a conception of justice.

The nature of justice and its relationship to law is, indeed, one of the most deeply rooted and fundamental questions of legal philosophy. Christians disagree on this point. In the fourth century, Augustine famously proclaimed lex iniusta non est lex (an unjust law is no law at all). Some Christians agree with Augustine (Dr. King, for example, cited this maxim in his Letter from a Birmingham Jail). Other Christians disagree, often citing Paul’s words in Romans 13: “Let everyone be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God.” When Christians are allowed (or required) to disobey law is a challenging question on its own. Wisdom answers this question with great care, or else all law is undone.

Conclusion

This first essay is intended to set the stage for a meaningful conversation. If Matthew and I are to successfully discuss immigration law we need to (1) identify the law we are discussing with particularity; (2) identify the conception of justice we are employing to evaluate the law; and (3) articulate our reasoning regarding whether the law we’ve identified is or is not just.

But, perhaps, it is not immigration law that Christians demanding comprehensive immigration reform really want to discuss. Perhaps Christians (relying on passages regarding hospitality, welcoming strangers, and the like) take issue with the entirety of immigration law. After all, by its very nature, legislation pertaining to immigration excludes. Perhaps some Christians (reading the biblical narratives regarding the global unity of the family of God) believe that there ought not be any borders (or walls). If this is the case, then we are not discussing immigration reform – we are discussing a political revolution.

In my next essay I intend to discuss why such a revolution would be unwise, and why borders, and the enforcement of our immigration laws, matter.

 


[1] The resolution I proposed for our conversation is – Resolved: A nation’s failure to enforce its immigration laws is unjust and such failure contributes to moral harm to both immigrant and citizen. Harold advised that he prefers “more ‘open-ended’ questions” in this project, and he suggested the leading questions which Matthew and I are now discussing.

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