by Matt Barr

Minutemen and Bedroom-men

I'm a fan of the Cafe Hayek blog, but this by Don Boudreaux is not the kind of thoughtful, thought-through post you normally find there. The premise (a premise, anyway) is that the Minutemen, in their efforts to help enforce immigration laws, deserve the kind of opprobrium we would heap on Bedroom-men, if they helped enforce archaic laws against unmarried sex between consenting adults.

Set aside your position on immigration. The post, though obviously the argument of someone who believes in free association and the right of a business owner to contract with any employee he chooses, doesn't by its terms depend on your favoring or disfavoring immigration laws. It says the argument that the Minutemen are just helping uphold the law is weak because you need to consider whether the underlying law is just or not, and for example, laws against unmarried sex are not. Fair enough. The argument still can't be taken seriously.

1. What is the argument that laws against unmarried sex are unjust? One important one is certainly that, to the extent we're talking about two consenting adults, unmarried sex does no harm. There is no legitimate security or police issue impacted by "allowing" unmarried sex, it's strictly a morals law. Certainly, whether sound policy or unsound, well executed or poorly, there is a security and police issue bound up in allowing foreign nationals to enter the country without an accounting. There is no parallel concern in our sex law hypothetical.

2. Another argument that unmarried sex laws are unjust is that enforcement would do more harm than good. We unequivocally don't want the police investigating whether we're having unmarried sex; we certainly don't want them gathering nontestimonial evidence of the crime. The same concern does not exist in the same nature when it comes to hiring immigrants. You may value your privacy enough not to want the government snooping through your employment records, and I appreciate that, but there is no sensible argument that snooping through employment records is equivalent to enforcing a law against unmarried sex.

3. Boudreaux believes illegal immigration laws are unjust; the Minutemen don't. While I personally lean more toward free contract in the matter of immigration, I recognize the importance of the government (its duty, in fact) ensuring it admits only law-abiding people into the country. Whose view prevails? "We shouldn't enforce unjust laws." Ok. Who gets to decide which ones we enforce? If it's each person according to his opinion of each particular law, that's simply untenable. Boudreaux writes:

Just because words are written on paper and subjected to hocus-pocus beneath a soaring marble dome does not mean that these words are truly “law,” or even that the government officials who wrote and voted for them want them to be taken literally.

Presumably, the solution to this is to eliminate the "government officials," those people who grow in the artificially lit environments of soaring marble domes like moss -- how else do they get there? -- in favor either of every citizen voting on which laws will be in force or nobody voting on anything. I hope it's obvious that neither is reasonable nor workable. Churchill had something to say in this vein.

4. Minutemen, as I understand it, attempt to catch someone breaking the law red-handed. Anyone who catches someone breaking the law red-handed is entitled to (though is not obligated to) stop the crime from being committed. Bedroom-men could not similarly help enforce unmarried sex laws without trespassing, possibly burglarizing a home. This is bound up with point 2 above, I suppose.

5. If a group of Bedroom-men formed to try and enforce laws against unmarried sex, and weren't foiled by any of the difficulties above, I guarantee the people states which are currently not enforcing those laws would insist their "government officials" repeal the laws. Successfully. Some laws are legacies of different ages that are so unimportant to today's society that nobody even bothers repealing them. Unless there is a groundswell of support for opening the borders that I'm not aware of, there is a great deal more popular will behind immigration laws. If we agree that whether I or Don Boudreaux think a law is "just" or "unjust" can't dictate whether anyone else follows it or not, we might, in a republic, alight on whether a law has popular force behind it as a way of gauging whether it should be enforced. (The issue whether the Constitution might forbid enforcement of a law backed by popular will is separate because inapplicable here.)

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