When is it morally justifiable for cities and states to willfully break or obstruct federal law?
Most would agree that it was morally justifiable in the 1850s for Northern states to resist Dred Scott and the ‘fugitive slave’ laws.
Historians, however, are less sympathetic to John C. Calhoun’s doctrine of nullification, which propounds that states can ignore federal statutes they deem to be unconstitutional.
Currently, Democrat mayors of big cities across the country are refusing to enforce federal immigration law.
People who support open borders believe they have a strong moral case. In particular, many libertarians believe that borders and citizenship laws are just means of oppressing people, denying them the basic right to move freely in search of work and a better life.
This argument clearly has some merit, but I don’t find it entirely convincing. Effective borders serve to reduce chaos and ethnic strife. Moreover, open borders, as a practical matter, are incompatible with the modern welfare state. As Milton Friedman said long ago, you can have open borders or a welfare state, but not both. If libertarians want to open up borders, they should first work on setting the necessary preconditions by rolling back the welfare state.
Deciding which federal laws we can ignore is a tricky and dangerous business. If liberals and libertarians think that their moral arguments trump federal law, then can conservative localities do the same? In particular, can a conservative state like Utah or Oklahoma choose to ignore Supreme Court case law and enforce a statewide ban on abortion or gay marriage? Libertarians may disagree, but most citizens of those states believe they have a strong moral case.
How do we resolve conflicts between the law and our moral conscience? I’m not sure I know the answer, but Lincoln’s dictum that a nation divided against itself cannot stand should serve as a cautionary warning.
And as long as we’re on the subject of morality and the law, I have a question about when it’s OK for a private business to refuse service. For instance, Twitter this past week implemented a purge of numerous clients who were using the medium to propagate right-wing views. Many of the users who had their accounts terminated had never tweeted threats of violence, nor had they singled out other users for harassment. Some of the banned users even possessed accounts that had previously been ‘verified’ by Twitter, a distinction usually reserved for celebrities and public figures. Yet Twitter banned them on the basis, apparently, of their political views.
Many commentators defended Twitter’s actions by asserting that, as a private company, Twitter is not bound by the First Amendment, and can therefore censor views it doesn’t like. This argument was made repeatedly in the comment threads of both conservative and liberal websites. For instance, at the USA Today, the most ‘liked’ comment among hundreds made essentially this point.
If Twitter were a newspaper or a book publisher, I would agree. But in the case of Twitter, the legal analysis does not seem so obvious. Twitter, it could be argued, is less like a private club and more like a public accommodation that offers a service to the public like a phone company. And the fact is that public accommodations are not legally free in all cases to censor speech. The phone company cannot terminate your service for telling an offensive joke over the phone. And under the Supreme Court’s 1980 “Pruneyard” decision, a California shopping mall–a private entity, to be sure–was told that it had to accommodate free speech.
In any event, I am not a First Amendment lawyer, but I do wonder about the apparent legal double standard. How is it that Twitter, as a private platform, can refuse service to right-wingers merely on the basis of their political views, but a private bakery cannot legally refuse to participate in a gay wedding? Can someone clarify that for me?
Furthermore, the foregoing discussion concerns only the law, and not what is morally right. Twitter might be able to censor speech legally, but that does not imply that it is moral for them to do so. As we have seen, morality and the law are often in conflict.