“Hard cases make bad law:” It’s a legal principle in U.S. court decisions that dates back at least 170 years. Its origin may go back even further, to Roman jurisprudence. The idea behind it makes sense. Laws should be made for the benefit of the general population. They should reflect and regulate normal circumstances.
Good law is not based on exceptions – and especially not exceptions wrapped in emotion. The law should embody sound reasoning rooted in a desire for justice, not warm feelings.
The trouble comes when a good principle meets complicated reality. It comes when “exceptions” become more the rule and less and less exceptional, and when enforcing a law does more damage than it fixes. Here’s an example.
Jaime L. (name changed) is a student at one of our Philadelphia-area parish schools. He and his younger brother were both born in the United States. Thus both are U.S. citizens. Earlier this month their parents’ car was stopped on the way to dropping Jaime at school. Their mother – an undocumented worker – was arrested on the spot by immigration authorities and transferred to a detention facility in York, Pa.
The mother has no criminal record. She speaks little English. She has little understanding of the proceedings she now faces. Her family is now in turmoil. Her husband has the burden of trying to find legal help for his wife while caring for their children alone and working a full-time job to support them. The parish is providing as much support to the family as it can, but the prospects for the mother are not good.
So where am I going with this story? On the surface, it sounds like just another emotional appeal to set aside a necessary law in the name of “compassion.” But that’s not my point. Every nation has a duty to regulate its borders and protect its own citizens. No sovereign state can legitimately do otherwise. We elect our representatives to serve our needs, and they make our immigration laws to ensure our public health and security.
Jaime’s mother broke the law. She may deserve special consideration – any sensible person should see that she does; she’s not a violent felon, not a hardened criminal, and two young American citizens urgently depend on her care – but just as importantly, the law itself, the law that currently incarcerates her, is broken. It’s not just, and not effective.
Despite nearly two decades of posturing, hand-wringing and name-calling, neither of our political parties has successfully reformed our immigration system. The cost for that gridlock is being paid by children like Jaime L. and his brother, and tens of thousands of other innocents just like them.
With 11 million “illegals” in the United States – the great majority with no criminal record or intent — Jaime’s mother is not an exception. Hard cases like hers are now too common to count or ignore. Immigration arrests are happening all over the United States and within our own archdiocese. The broken families they leave behind are a social disaster, not just now but in the years to come as the citizen-children of deportees grow to adulthood.
If hard cases make bad law, the evidence is irrefutable that bad law makes hard cases; cases of real suffering with human faces.
Earlier this week we celebrated Memorial Day, the unofficial beginning of summer. For many of us, our thoughts will be turning to the shore, warm weather, vacation, relaxation and time with our families.
That won’t be happening for Jaime and his family. We need to remember them in our prayers. And we need to demand a better grasp of justice and common sense from the people who make our laws.