April 17, 2006,
With last month's mass demonstrations of illegal aliens, the United States has entered the era of postmodern rights. The protesters looked like conventional rights demonstrators, with their raised fists, chants, and banners. But unlike political protesters of the past, the illegal-alien marchers invoked no legal basis for their claims. Their argument boils down to: "We are here, therefore we have a right to the immigration status we desire." Like the postmodern signifier, this legal claim refers to nothing outside of itself; it is, in the jargon of deconstruction, a presence based on an absence.
The consequences of this novel argument are not insignificant: the demise of nation-states and of the rule of law. Remember: The only basis for the illegals' demands is: "I am here." The "I am here" argument could be made by anyone anywhere a Moroccan sneaking into Sweden could make the same demand for legal status. In one stroke, the border-breaking lobby has nullified the entire edifice of American immigration law and with it, sovereignty itself. None of the distinctions in that law matter, the advocates say. The conditions for legal entry? Null and void. The democratically chosen priorities for who may enter the country and who not? Give me a break! In other words, the United States has no right to decide who may come across its borders and what legal status an alien may obtain upon arrival. Those decisions remain solely the prerogative of the alien himself. The border no longer exists.
The American legal tradition has until now assumed that it takes a congressional enactment or a judicial ruling to overturn a duly enacted law. With the ubiquitous chant, "No person is illegal," first popularized by Los Angeles Cardinal Roger Mahoney, that tradition is over. Pace Cardinal Mahoney, under existing immigration law, a person may in fact be "illegal," if he has broken into the country without permission or has overstayed his visa. Mahoney and the hordes who have taken up the "No person is illegal" slogan beg to differ. No law has the power to confer illegal status on an alien law-breaker, they say. Therefore, the existing laws are void simply because the illegal aliens and their supporters do not like them, not because Congress has decided to withdraw them. This alleged power to overturn laws based on sheer presence is a remarkable new constitutional development.
Efforts to analogize the illegal-alien protests to the civil-rights movement are ludicrous. Blacks were demanding that state governments end the unlawful deprivation of rights that they already possessed under the Constitution, and for which the nation had fought a traumatic civil war. The illegals are claiming rights to which by law they have no right and for which they can make no legal argument whatsoever. If their movement succeeds, it will not be possible to deny any future rights claims in any sphere of life or activity. The claim for same-sex marriage, opposed by many of the same conservatives who so genially support the illegal-alien movement, rests on far stronger Constitutional grounds than the "I am here" claim for legal immigration status. And we will have no basis for opposing the demands for legalization by every future border trespasser, who, along with today's illegal aliens, can simply state: "I am here."
It is easy to understand why the multicultural lobby, with its antagonism to American identity, is pushing so hard for illegal-alien rights. It is less easy to understand why many conservatives, who otherwise stand for unfettered American sovereignty in all matters international, are so eager to dissolve not just our immigration laws but the principle of lawmaking behind them. They may soon discover that a postmodern conception of rights leads to a postmodern conception of nationhood.
Heather Mac Donald is a contributor to the Manhattan Institute's City Journal.