As right-wingers cite “the rule of law” as a reason why undocumented Hispanic immigrants should be deported, those right-wingers invoke a legal philosophy that means the exact opposite of what they assume it means.
The Immigration Skeptics’ Misunderstanding of Rule of Law
They assume that the doctrine of Rule of Law means, The law is the law, and you have to follow the law! This assumption that we have every duty to follow every statute would actually preclude any civil disobedience against unjust laws. Anyone who took this seriously would assume it was wrong for blacks and whites to associate with one another in the South during Jim Crow; it would assume it was wrong to participate in the Underground Railroad; it would assume that it was wrong for entrepreneurs to flout Prohibition by distributing and selling alcohol. It would even assume that the American Revolution was wrong; the Boston Tea Party defied statutes.
Nowadays right-wingers invoke the term “Rule of Law” when demanding punishment of Hispanics who immigrate the United States without getting a visa first, a visa being a license for long-term immigration. They sputter that if you are not keen on deporting a peaceful person who immigrated without a license, you are, at best, being arbitrary in what laws you think should and should not be enforced and, at worst, an anarchist. That is the implication from Ted Cruz’s presidential campaign website when it proclaims that deporting undocumented immigrants is all about enforcing the Rule of Law, obviously ignoring the fact that Ted Cruz was just fine with how Kim Davis brazenly broke the law. On many instances where I defend the rights of undocumented immigrants, right-wingers (here is an example) tweet at me that I am disrespecting the Rule of Law. These right-wingers who try to use “the Rule of Law” as a club with which to bludgeon undocumented immigrants demonstrate that they do not know what the Rule of Law is or what it means.
The Rule of Law has always been a legal philosophy and, thanks to the British legal scholar Albert Venn Dicey in the nineteenth century, it came to be widely known in the West as a distinctly classical-liberal legal philosophy. And this philosophy, taken to its logical conclusion, comes down on the side of the undocumented immigrants and not on the side of those wishing to deport them.
What the Rule of Law Actually Is
An early usage of the term comes from the ancient Roman historian Livy (Titus Livius) who, in the introduction to Book II of his History of Rome, enthused that the Roman republic was finally going through a period of "rule of law, not of men." By this he meant that the Roman republic was clamping down on the arbitrary powers of the Head of State and began placing more emphasis on enforcing a consistent legal code on everyone. The idea also gained currency with John Adams, who wrote that constitutions were to ensure a "government of laws, not a government of men," again with the latter term referring to arbitrary powers on the government’s part. Yet the term Rule of Law gained most renown from the British legal scholar and jurist A. V. Dicey, who said that the Rule of Law has three planks. They are, in my words, not Dicey's:
1. The law must be codified and available to all literate residents of a realm to read and study. That is, it is not sufficient to have a monarch saying that he keeps track of all the laws in his own head without spelling out for everyone else what the laws are. That is arbitrary power -- what Titus Livius and John Adams called the rule "of men."
2. The law applies equally to all residents of the realm. Livy, John Adams, and Dicey most specifically mentioned this because they resented that government officials felt that laws which they enforced on other people did not apply to themselves and their relatives. For example, suppose the governor cracks down on burglars. Then the governor learns that his own nephew is among the burglars. The governor decides, "I will prosecute all burglars, except for my nephew, because I know that his being prosecuted would upset my whole family." That is arbitrary power and not the equal application of the law to all residents of the realm. Hence, it would be a violation of the rule of law and be an instance of “the rule of men.”
Note, however, that there is a wider application of this plank. Dicey said that the law must apply equally to all residents of the realm and not divide them into separate legal classes. That is, he said that it is not the case that members of one class be treated one way by the law and that there be another (second- or third-tier) class treated differently by the law. We will revisit this at the end of my essay.
3. The final plank states outright that your individual rights -- your right to live peaceably with your property, as described by Locke -- are more important than any and all written laws, more important than statutes and even constitutions. As Albert Venn Dicey says, "The 'rule of law,' lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the rules in which foreign countries naturally form part of a constitutional code, are not the true source but the consequence of the rights of individuals, as defined and enforced by the Courts; that, in short, the principles of private law have with us been by the action of the Courts and Parliament so extended as to determine the position of the Crown and its servants; thus the Constitution is the result of the ordinary law of the land" (emphasis added).
The Classical Liberal Freedom, to Do Anything That Is Peaceful, Outranks All Statutes and Even Constitutions
By the third plank, Albert Venn Dicey meant that the individual rights described by John Locke -- to live peaceably with your property, not aggressed upon by the State -- come first, and legislation is valid only to the degree that it protects those rights. As Dicey puts it, "...each man's individual rights are far less the result of our constitution than the basis on which that constitution is founded." That is, your liberty to do anything that is peaceful is superior to -- outranking -- any statute or ordinance, and even constitutions. Dicey, being a jurist, held more confidence in courts than in statutes, and hoped that courts would overturn -- or at least refuse to enforce -- unjust statutes that violate your right to do anything that is peaceful.
Applying that principle already nullifies the political Right's arguments against undocumented Hispanic immigrants. Applying the third plank means that if you want the law to send armed men after undocumented Hispanic immigrants, you have to do more than say, "They acted contrary to statutes!" You have to show actual violence done to someone else's person or property.
Dicey stated that although he was concerned that people might arbitrarily decide to flout just about any sensible statute they disliked, the principle of Rule of Law could not preclude the moral justness of defying particularly repressive statutes: "No sensible man can refuse to admit that crises occasionally, though very rarely, arise when armed rebellion against unjust and oppressive laws may be morally justifiable. This admission must certainly be made by any reasoner who sympathises with the principles inherited by modern Liberals from the Whigs of 1688."
How Practicing the Rule of Law Would Preclude Treating Undocumented Immigrants Differently from the Native-Born
However, we can also return to the second plank, the one about how the law must apply equally to all residents of the realm. One might try to interpret it as narrowly as saying that government officials must not be held above the laws they enforce on citizens, such as in my example of a governor refusing to prosecute his nephew for the same infraction for which he prosecutes non-relatives. But Dicey's explanation of this plank is not as narrow as that: "It [Rule of Law] means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts..."
If we apply the third plank Dicey mentioned -- prioritizing your right to live peaceably above any statute -- and also apply the second plank, we can see that Dicey's Rule of Law doctrine disapproves of how undocumented immigrants are treated as a different legal class as the other residents of the realm. Recall that the third plank would have the law err on the side of allowing anything that is peaceful, and that because citing statutory law or even constitutions is not sufficient to prove that a party of people must be prosecuted, the Rule-of-Law doctrine would not consider a Mexican immigrating to the USA without a visa to be a sufficient reason for U.S. government action against that Mexican immigrant. However, the fact that undocumented Mexican immigrants are undocumented puts this peaceful group of citizens in a different legal class from other peaceful residents of the realm. The government treats peaceful, undocumented immigrants differently from peaceful native-born Americans. It is discrimination on the part of the State. That therefore violates the second plank of Dicey's Rule-of-Law Doctrine: "equality before the law, or the equal subjection of all classes to the ordinary law of the land..."
The Man Who Popularized “Rule of Law” Explicitly Condemned Statutes That Restricted Migration As Contrary to Rule of Law
Here, the "immigration skeptics" will probably say I am nitpicking. They will say that Dicey was merely advocating that all citizens be treated equally, and that his Rule-of-Law doctrine is inapplicable to resident aliens, as resident aliens are non-citizens. It is therefore instructive to read what Dicey said specifically about immigrants. In the first decade of the twentieth century he denounced a proposed restriction on immigration to England. This was the Aliens Act of 1905. David Glover writes that Dicey "came to see the Aliens Act as just one among a variety of recent laws through which the state was tearing asunder the fabric of personal freedoms..." In Dicey's own words, governmental restriction and regulation of immigration "shows an indifference to that respect for the personal freedom, even of an alien, which may be called the natural individualism of the common law."
In short, "immigration skeptics" are misappropriating a term. In an attempt to undermine support for the freedom of immigration, these right-wing anti-immigrationists invoke a legal doctrine that, from the very beginning, championed what the right-wing anti-immigrationists are trying to destroy.
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Update Notes -- July 14, 2016: Added the quotations about rebellion and rights being the basis rather than the result of the Constitution. On January 12, 2018, I corrected some grammar and some links, and added the infographic at the top.
