On Law and Freedom

“A government of laws, and not of men.”

       – John Adams, Novanglus Essays, No. 7.

This quote keeps coming to mind as I listen to the cacophony of voices objecting to the separation of minor children from parents at the border.  The rhetoric is for the most part directed at the President as the name calling cast his way becomes more and more horrific.    I understand that when people are shown a picture of a crying 2 year old allegedly about to be separated from her mother that there is something wrong with their hearts if they do not ache for the poor child.  But, that heartache does not mean that we should not enforce our country’s laws.

Let’s take a breath for a moment and consider the facts.  John Adams also wrote  “Facts are stubborn things, and whatever may be our wishes, or inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” (Argument in Defense of the British Soldiers in the Boston Massacre Trials, Dec. 4, 1770).

So, what are some of the facts relevant to the separation of children from their parents?  First, we have immigration laws that prohibit illegal border crossings.    When adults illegally cross the border, they are placed in an adult detention center until it can be determined if they have a justifiable reason for entering the United States.  If not, they are returned to their side of the border.  If they have children with them those children are not placed in the adult detention center (would you really want that crying 2 year old or any other child placed in adult detention where a variety of criminals are also residing?).   Instead, those children are placed in a facility specifically designed for them.  No, it’s not home, but it has clean beds, activities, 3 square meals a day.  It is safe for a child until he or she can be reunited with his or her parents.   (We should also note that not all children placed in these centers crossed with their parents or other family members; some were unaccompanied minors and some were with adults unrelated to them who were crossing with the children for a variety of reasons, some very questionable at best).

It may seem cruel to separate these children from their parents, but this is simply a result of enforcing laws that are on the books.  No one complains when someone is placed in detention for breaking other laws and when so placed is separated from their child.  When someone breaks the law there are consequences and, when that someone has minor children then those children will likely suffer some of those consequences. 

And let’s also not forget that the parents of these children are knowingly committing an illegal act and choosing to bring their children into that illegal situation with all of its consequences.  These parents could choose to follow the legal immigration procedures and in so doing not subject their children to the possibility of separation from their parents.

Does this sound cold?  Perhaps so, but actually it is far fairer and more in line with our government and its freedoms than is an inconsistent enforcement of law.  For, when only some laws are enforced, then we become not a government of law, but of men.  And, when we let one or another decide which laws to enforce, or against whom those laws will be enforced, then we are turning over our power and our freedom.

This idea of the rule of law and its connection to freedom is not new.  John Locke wrote that freedom means being subject only to laws made by a legislative body that apply to everyone. (“The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it” Second Treatise of Government, 1690). Aristotle wrote that “It is more proper that law should govern than any one of the citizens.” (Politics, Book 3) The Oxford English Dictionary definition of “rule of law” includes “the principle whereby all members of a society are considered equally subject of publicly disclosed legal codes and procedures.”

John Adams first wrote the phrase “a government of laws and not men” in an essay published in the Boston Gazette in 1775.  In 1780 the Massachusetts Constitution used the phrase in the section outlining the separation of powers.   More recently, the term occurred in  the 1996 State of the Union Address  when President Clinton used the phrase in the context of immigration.  He spoke of his administrations “strong stand to stiffen the protection of our borders,” and then stated, “We should honor every legal immigrant here, working hard to become a new citizen. But we are also a nation of laws.”

We have a legislative branch of government which writes the laws.  The legislators are the duly elected representatives of the people of this country.  Once those laws are enacted we should be able to expect that they will all be enforced and enforced equally.  It is the job of the executive branch of our government to enforce those laws.  It is not up to the executive branch to decide which laws it will and which it will not enforce.  It we allow our executive to do that, then we are turning over our power to one person or group to rule us, perhaps at their whim, but even if done with what we see as compassion it is far more in line with an autocratic rather than democratic form of government.   It is this rule by a select or elite few and their ability to unfairly and arbitrarily apply rules that our founders hoped to protect us from as they created our Constitution and its separation of powers.   

So, next time you see the crying 2 year old, or hear the anti-Trump verbiage about his not stopping the separation of families at the border, remember that all he and the executive branch are doing is enforcing the laws – all of them.   They are doing their jobs.   It is not his or the executive branch’s place in our democratic republic to pick and choose which laws to enforce.  And really, is that a power that you would hand to any president?  That is, would you really rather have a government of men than of law?  A government where the ones in power could select what laws apply and to whom?

If you do not like a particular law, then demand that your legislators rewrite it.  Do not ask that it be ignored.  If the laws are subjectively enforced, then we no longer have a government of laws, but of a selective few who hold power at any given moment.  Wouldn’t you rather have a government in which the people, through their designated representatives in Congress, make the laws and then trust that the executive branch will enforce ALL those laws and apply them equally.    For that is what freedom is.   And that is why I stand behind the full enforcement of all the laws, even when it separates a mother from her child.