Applying John Rawls’ “maximin principle” on the border

The refugee crisis on the southern U.S. border confirms to me how impotent religion is in addressing the most pressing social and moral problems of our day, taking a back seat to political ideology and innate human “fear of the other.” The current administration’s policies of child separation, indeterminate detention, and harsh detention conditions for people convicted of no crime are supported by a large percentage of white Americans, many of whom wear the cross symbol of Christianity with pride.

Millions of people who supposedly know their Bible appear to assume here that one of the best-known of sayings ascribed to Jesus, from Matthew 25, does not apply to them or this circumstance. In this scripture, Jesus tells his disciples that when you minister to the sick, the stranger, the hungry, or the ones in prison, “Whatever you did for one of the least of these brothers and sisters of mine, you did for me.” [1]

Yes, but aren’t they “illegals”?

In legal terms, three undisputed facts rarely make the news, especially on channels popular with conservative Christians. First of all, it is never a crime to present oneself at the border for asylum from persecution. Indeed, this is a protected status from the United Nations Universal Declaration of Human Rights of 1948 and supported by the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. The United States has signed on to these international agreements. Maltreatment of asylum seekers and their families by the U.S. government may well qualify as a “crime against humanity” by accepted international standards.

Second, a violation Section 1325 of Title 8 of the United States Code, “improper entry by an alien,” mandates only a civil penalty, and makes a misdemeanor charge optional for first offense, which is how this law was interpreted for many years. I could list here many other comparable misdemeanors and likely you have been guilty of committing at least one of them yourself. [see note 2] And even if you were convicted of one of these misdemeanors, you would likely not be incarcerated in the manner currently being used on the southern border, especially if you are white. That is not opinion. That is fact.

Finally, the term “illegals” is never expressed without a racial subtext. By one estimate, 92,000 Canadians overstayed their visas in 2017, also a Section 1325 violation. I have yet to hear or read of anyone decrying this large quantity of Canadian “illegals.”

The Rawls “maximin principle”

The late moral and political philosopher John Rawls (1921–2002) was best known for trying to derive practical political rules from his empathy-based approach to morality, as described in his seminal text A Theory of Justice (1971). Under this principle, justice is defined as that set of actions that are of “the greatest benefit to the least-advantaged members of society.” His famous thought experiment called “the veil of ignorance” suggests that we imagine what kind of world we would want to have if we had no idea where and under what circumstances we might be birthed.

If we did not know whether we would be coming out the chute as rich or poor, male or female, or having some sort of disability, or perhaps being born into a socially-repressed racial or ethnic group, how would we want society to treat us? Rawls’ “maximin principle” suggests that we attempt to define the “best possible minimum” that a society, especially a self-described “rich” and “moral” one, can feasibly apply to the least-advantaged. An example of this principle would be to strive for “fair equality of opportunity,” where we think more in terms of “equal claim” on the privileges of society rather than “equal rights,” a term that gets a lot of push-back.

In other words, under “fair equality of opportunity” the society is not obligated to “make everyone equal” through some kind of economic re-distribution (a common charge against the political left), rather it is obligated to actively tear down the barriers faced by many of society’s disadvantaged, such as racism, sexism, homophobia, and their related job and education discriminations. They still exist, despite the protestations that they don’t by many of the same people trying to preserve their own preferred special barriers.

How can this principle be applied at the border?

The most common objection to “empathy-based ethics” is that “we can’t save everybody.” It is true that the large number of people presenting themselves for asylum or work-related entry at the southern border certainly presents logistical challenges. It is easy to jump right to that contention without even considering taking the first steps in what we can do in situations like this. We are clearly emphasizing incarceration over humanitarian solutions, reportedly at up to $775 per day per person paid to for-profit prison contractors. [3]

Remembering the old adage that when all you own are hammers, every problem looks like a nail, U.S. Customs and Border Protection has spent hundreds of millions of dollars since 2001 staffing up the southern border to stop terrorists, assuming all people trying to cross were dangerous criminals. When the humans at the border instead turned out to be economic migrants and families fleeing dangerous conditions at home, this agency continued to treat them all as criminals, which, as noted above, they definitely are not.

This is a humanitarian crisis, not a “crime crisis.” And yet, there has been little attempt by the U.S. government to staff a humanitarian effort and an effective legal asylum adjudication process at the border. Nor has there been any significant attempt to act with other affected nations to help ease the environmental and political causes of the migration. Meanwhile, farms and other businesses cry out for workers, especially in rural parts of the country that have been hollowed out by “benign neglect” and outright destruction of government services over the last decades.

An obvious example of a “best possible minimum” on our southern border would to mount a humanitarian effort that is at least equal to what we are paying instead to incarcerate people who have committed no crime. Simply think of it this way: what level of humanitarian effort could be mounted at a cost of $775 per person per day? For that price, there are likely hundreds of non-profit organizations, churches, and individuals who would provide food, shelter and transportation to thousands of intact families until their immigration status is resolved or employment is found.

But that won’t happen because, for many vocal “Christian” leaders and many more thousands of their supporters, the cruelty and family separation appear to be the point. If you are a white Evangelical and you can’t abide this cruelty in the name of our government, then you need to tell your leaders (e.g., the “Juniors” Falwell and Graham) because they are deeply invested in this corruption.

As I have noted before, we are “only human,” but at our best we certainly strive to be humane in an often-inhumane world. It is “the least” we can do. But then, it is only we who see these folks as “the least.” From the one who proclaimed that “the last shall be first”:

“Whatever you did for one of the least of these brothers and sisters of mine, you did for me.”

A powerful song here about “Illegals” from the late, great singer-songwriter John Stewart with an embedded tribute to Woody Guthrie. Lyrics are here.


Notes:

1. Matthew 25:35-40, The New International Version here, because it is one of the most popular versions among Evangelicals, who overwhelmingly support President Trump’s actions:

“For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.’

“Then the righteous will answer him, ‘Lord, when did we see you hungry and feed you, or thirsty and give you something to drink? When did we see you a stranger and invite you in, or needing clothes and clothe you? When did we see you sick or in prison and go to visit you?’

“The King will reply, ‘Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.’

  1. Examples of common misdemeanors include shoplifting, driving while intoxicated, interference with child custody, and possession of a controlled substance. Indeed, the Section 1325 penalties would be equivalent to the lowest class of misdemeanors in many states.
  2. As I have written in the past, the privatization of prisons and similar services is not capitalism. It is missing most of the key components of a “market economy” and replaces them with a scheme to enrich the politically-well-connected, such as former presidential chief-of-staff John Kelly, using taxpayer money.

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