On Sunday, a good friend and I began talking about illegal aliens and the law. My friend is very bright, and understands the economic magnet that draws so many to cross our border, but he also has a deep and abiding respect for the legal process established in the constitution and the laws that develop through that process. He believes in the rule of law, the principle that nobody is above the law, and in crossing our border illegally, these people put themselves above the law. What he does not understand is why so many illegal aliens unabashedly demand rights once established within our country.
I have heard the same question voiced by others and I would like to take a crack at answering it. Like many deep questions in life, it reminds me of a conversation between Spock and McCoy in a Star Trek movie. Through a series of movies, Spock dies, but transfers is "katra" the essence of his soul, to McCoy's body. His body is laid to rest on a planet undergoing the rapid evolution to life through the Genesis technology. The process not only creates life on this dead planet, but brings back a Spock that does not have his soul. Our heroes are able to transfer Spock's katra to his body. McCoy asks the obvious question, "What is it like being dead?" Spock answers by telling him that they cannot discuss this question because they do not have a common experience, death, on which to base their discussion.
We do not share a common experience, the rule of law, with most people living in our country illegally. Largely, they come from countries that North, Wallis, and Weingast refer to as a limited access order. The most powerful groups form a dominant coalition that rules the country. It doles out economic benefits to coalition members roughly in proportion to the violence each group could bring to the coalition if not rewarded. Economic benefits are distributed, not earned.
Groups and individuals outside the ruling coalition have resources, and attempt to use them to earn profits or income to better their lives, but their ability to use these resources is limited by the ruling or dominant coalition. The dominant coalition will protect the economic distribution of benefits they establish because disrupting it could plunge the country into something akin to a civil war.
Hernando De Soto wrote an influential book titled, El Otro Sendero, or The Other Path, in which he describes the plight of many Peruvians, most of whom are indigenous, and outside the dominant ruling coalition. They have resources and energy, but the law is against them. The law makes it hard for them to migrate to the cities where there are better economic opportunities, and better access to health care and education. When the book was written, they could not build homes, obtain business licenses, or otherwise legally engage in production or retail trade.
They responded by operating outside the law in informal markets exercising what our founders believed were God given rights of life, liberty (economic and otherwise) and the pursuit of happiness. These illegal activities improved their lives, increasing their economic prosperity, and access to better health care and education for their children. They would like to live within the law, but the law as currently constituted is stacked against them. They would like to change their country through elections, but this is dangerous because it challenges the dominant coalition that limits violence, bringing peace.
When people from these countries cross our borders illegally, their frame of reference is a land of limited access, where the law was designed to punish them. Before they arrive, they know that they will be acting illegally, but for them, it is no different than their current existence. Their law and our law punishes them. They don't understand how our constitution provides opportunity to all citizens operating within the law. It is beyond their experience.
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