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Words on Paper about Papers Do Not Alone Make Law

Here’s a letter sent yesterday to the Washington Post:

George Will rightly charges left-liberal opponents of Arizona’s immigration statute of cynically exploiting it to discredit the courageous men and women who object to Washington’s current agenda of politicizing all aspects of Americans’ lives (“Arizona law’s foes are using the real immigration scare tactics,” May 2).

Unusually for Mr. Will, though, his defense of Arizona’s statute rests on weak reeds.  For example, excusing Arizona’s threat to punish immigrants who don’t carry documentation, Mr. Will notes that since 1952 federal legislation specifically requires the carrying of such documentation.  So Arizona is now simply enforcing the law, right?

Wrong.  That requirement from 1952 has long gone unenforced – a fact that means that it isn’t really the law.

Those who disagree with this conception of law should consider these words, currently on the books as Chapter 272, Section 18 of the General Laws of Massachusetts: “Whoever commits fornication shall be punished by imprisonment for not more than three months or by a fine of not more than thirty dollars.”  If a Javert-like Attorney General of the Bay State began to arrest unmarried adults who have consensual sex with each other, would Mr. Will – or anyone else – endorse this official’s actions as appropriate enforcement of the law?

Donald J. Boudreaux

Note that the point of this letter responding to George Will’s column is not to insist that the 1952 statutory requirement that immigrants carry documentation is unwise or unjustified (although I do believe it to be so).  The point, rather, is merely to reveal that words in a statute book are not necessarily law – and, as a corrolary, that if suddenly government begins to enforce any such statutory words that have long remained unenforced, then the new enforcement does indeed represent a change in the law (or, actually, a breaking of the law by the current government).

Here’s a post from 2006 on the same topic.