Laws? Obey the ones you like. Ignore those that make you feel bad. Would there be consequences if everyone chose to do that?
Today’s heated battle over immigration places this conundrum center stage. It begs two questions that are polarizing us as never before. Are we a nation of compassionate people, insisting that children should not be forcefully separated from their parents? Or are we a sovereign nation, with secure boarders, governed by the rule of law? Proponents of both points of view offer compelling arguments.
Those calling for non-enforcement of existing immigration law have optics and emotion working for them. Yes, some images have mis-represented reality and some of the rhetoric has verged on the hysterical. But no one can deny the human tragedy of parent-child separation.
Beyond emotion, there exists strong historical precedent for Civil Disobedience. After all, our nation was founded by citizens rejecting unjust laws dictated by a distant monarch.
Seven decades later, Henry David Thoreau penned his famous essay Civil Disobedience. In it he questioned how an individual must act in the face of unjust laws: “Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them and obey them until we have succeeded, or shall we transgress them at once?” His stated position left no doubt. “If it (an unjust law) is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law.”
This country’s modern civil rights movement relied on civil disobedience. In his Letter From A Birmingham Jail, Martin Luther King wrote, “There are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.”
More recently we have seen additional acts of Civil Disobedience, such as Occupy Wallstreet and the NFL National Anthem statements. While noteworthy, these nascent movements could use a more focused clarity of purpose.
The argument for defending the rule of law is also compelling. Duhaime’s Law Dictionary defines the Rule of Law this way: “That individuals, persons and government shall submit to, obey and be regulated by law, and not arbitrary action by an individual or a group of individuals.”
Our founding fathers clearly understood that there would be a natural friction between Civil Disobedience and the Rule of Law. James Maddison wrote, “If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the greatest difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself” (Federalist Paper No. 51. 1788).
Articles I, II and III of the Constitution addressed this challenge by establishing three separate branches of government, the Legislative, Executive & Judicial. Each branch exists as a check against the undue concentration of power by the others.
Supreme Court Justices have spoken out on the question. Felix Frankfurter argued that “There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny” (United States v. United Mine Workers, 1947). And Sandra Day O’Connor said, “Commitment to the rule of law provides a basic assurance that people can know what to expect whether what they do is popular or unpopular at the time.”
Salman Rushdie, author of Satanic Verses, bluntly stated “Two things form the bedrock of any open society – freedom of expression and the rule of law. If you don’t have those things, you don’t have a country.”