One of the chief complaints that persons opposed to immigration today level against those immigrants now in the United States without permission of the United States government is that these immigrants are here illegally. “They broke the law; they’re criminals” – so the story goes. “Send them home and let them apply to come here legally.”
The phrase “illegal immigrant” is a boon to xenophobes. It permits them to mask their hostility to freedom of movement, to freedom of association, and to foreigners, behind high-sounding rhetoric about the rule of law.
I concede that many people today are in the United States without Uncle Sam’s formal permission. I disagree, however, that these people are ‘illegal’ or ‘criminal’ in any but the most formal and empty sense of the terms.
Law is not so much what legislatures declare it to be; law, instead, is the complex of norms and expectations that motivate most people in a community. In some states – including, I believe, Georgia, Massachusetts, and Mississippi – the legislative codes still prohibit sexual intercourse between unmarried persons. Suppose you’re a resident of one of these states and you’re called to jury duty. The case is State v. Jones, where the state government is prosecuting Ms. Jones (an adult) for having voluntary sex with her boyfriend (also an adult) in the privacy of their own home. Would you vote to convict Ms. Jones even if both Jones and her boyfriend admit that they are not married to one another but that they routinely have sex with each other in private?
Would you find it compelling if someone argued “Look, I personally have no problem with unmarried adults voluntarily having sex with each other. But the law’s the law! If unmarried adults want to have sex, let them do it legally; let them first get married or move to a state that doesn’t criminalize fornication. Then they can screw each other all they want. But if the law says that sex between unmarried people is illegal, then if we let people get away with breaking this law openly, arrogantly, we risk undermining the rule of law in the United States.”
As I’ve argued elsewhere  (and here ), it’s a mistake to confuse legislative declarations with the law. In fact, despite what’s written in the statute books in some American states, it is legal everywhere in the U.S. for unmarried adults to have sex voluntarily with each other. The actual law is revealed by the practice. Statutory language, in this case, obscures the law.
And so it is with so-called “illegal immigration.” Although not as universally accepted today throughout America as is consensual sex among unmarried adults, immigration without permission of government is widely enough accepted that we can conclude that it is lawful, despite what is written in the statute books.
Employers hire foreign workers without caring much whether these workers can document that they are in the U.S. with Uncle Sam’s permission. Consumers patronize commercial establishments without caring enough about the official status of these establishments’ workers to cause these consumers to seek out establishments that clearly document that they hire only ‘legal’ workers. And save for a relatively small handful of busybodies – such as the so-called “Minutemen ” – we Americans in our private choices and actions do virtually nothing to hinder ‘illegal’ foreigners from living and working and playing in our midst.
A ‘law’ that is overwhelmingly ignored – a ‘law’ aimed not at protecting innocent people from the initiation of force or fraud by others but, rather, at protecting one group of people from the economic competition of another group of people – a ‘law’ that depends for its creation and enforcement upon both ideological and economic interest groups whipping up political passions – any ‘law’ with one or more of these characteristics is not really a law. At best such a ‘law’ is a government command that must be enforced without the active cooperation of the populace and, in many cases, against the revealed wishes of this populace.
Anyone in America peacefully going about his or her business is not illegal, regardless of whether or not this person has Uncle Sam’s permission to be here.
SATURDAY-MORNING UPDATE: New York Times columnist John Tierney quite eloquently makes much the same point in his column that appears in today’s edition . Here’s his concluding paragraph:
Railing at them [‘illegal’ immigrants] for breaking the law is not going to make them go home or stop others from following them here. Immigrants will cross the border one way or another. The more of them we let in legally, the better off everyone will be. Whether you welcome more immigrants, as I do, or whether you’d rather see fewer, there’s no point in commanding the tide to ebb.