ICE Protests Contradict the Doctrine of Civil Disobedience
Pete Peterson
The activist left holds dear the idea that “injustice anywhere is a threat to justice everywhere,” and for good reason — Dr. Martin Luther King Jr.’s Letter from a Birmingham Jail is the single most foundational document for protest culture and the positive affirmation of civil disobedience. But as we see protests over ICE unfold in places such as Minneapolis — echoing similar waves of protests in the summer of 2020 over George Floyd’s death — I cannot help but question whether these protests are taking Dr. King’s theoretical framework for civil disobedience seriously.
Critics of the recent anti-ICE demonstrations will likely point to the results of the George Floyd protests of 2020, which on many occasions devolved into rioting, looting, and mob rule — actions clearly prohibited by Dr. King’s dogma of nonviolent resistance. Defenders of the protests might counter that such incidents of violence were related but tangential to the broader BLM movement that aimed to draw attention to perceived injustices around policing in America. Many activists suggest that the degradation of these protests was inevitable, arguing that the voices of the marginalized could not be heard any other way.
However, when the debate shifts to clarifying the obligations of the oppressed and oppressor, the powerless and the powerful, we overlook a foundational question: what exactly are we protesting in the first place?
For Dr. King, it is exactly this question that sets the boundaries of acceptable protest and the appropriate course of action to be undertaken in pursuit of fighting injustice. What was central to King’s promotion of civil disobedience was that it be a response to unjust laws, because, to quote St. Augustine and Dr. King, “An unjust law is no law at all.” Identifying which laws are unjust was the means to constructing both boundaries of protest and an actionable goal for it.
Dr. King’s doctrine is remarkable for having a great reverence for the law, which was why he willingly accepted the punishments for breaking unjust laws.
In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.
Dr. King’s efforts in Birmingham were successful because by breaking unjust laws and accepting the consequences, he and his cohort had successfully demonstrated that said laws ought not to exist at all. For Dr. King, it was only the unjust laws that were to be broken, and never the just ones, especially those that we find are rooted in the moral law.1 This philosophy is particularly profound and diverges from what we have witnessed in Minneapolis recently, watching agitators assault police officers and destroy personal property.
My question to the protestors in Minneapolis and around the country is this: what are the unjust laws that are to be broken in protest? I imagine that many demonstrators would argue that it is our immigration laws that are unjust. But which ones? Those that maintain that there is no universal right to enter and live in the United States? Of course, many would be hard-pressed to make a statement endorsing open borders and a severe limitation of sovereignty, so they’ll make an appeal to something more specific: it isn’t having immigration laws that is unjust, but rather the manner in which we go about enforcing them that is problematic. But here we run back into the original problem: which laws related to the enforcement of immigration law are unjust? What should those laws look like?
For Dr. King and his struggle, this question had a straightforward answer. It was laws enforcing the doctrine of segregation that were unjust, and so it was those laws (and only those laws) that civil disobedience targeted. Civil rights protests had a defined objective: the elimination of specific unjust statutes. Protest grounded in reform, not rage.
The lack of such a vision or goal will be damning for the recent wave of protests, which express no particular desire for reform, but rather an unrefined want for chaos and action when no action is warranted. They are hasty, ill-thought-out, and worst of all, demonstrate a willingness to break any law, even just ones.2 Let’s concede for the sake of the argument that there is something unjust about ICE as an institution: does it thereby follow that illegal hostility towards agents of the institution is warranted? Do issues stemming from the objectives of enforcement magically render those laws that protect enforcers as illegitimate?
To reference another controversial law, many would argue that marijuana prohibitions are wrong or unjust somehow. In this case, we can perfectly understand how civil disobedience could protest such an unjust law. By possessing marijuana and subsequently accepting the unfair punishments of laws prohibiting it, one has perhaps successfully demonstrated that those laws are wrong. It certainly wouldn’t follow from this view that a state trooper searching someone’s car for some weed has forfeited his right to protect himself from agitators who wish to prevent him from doing his job. While weed laws might be unjust and should thus be broken, laws protecting police officers are just and must still be followed.
Let’s go back to the subject at hand: is ICE unjust? If what was at stake here was that there are particular tactics of ICE that might be unjust (like racial profiling, or something), then calls for action would all concern those particular tactics. But that isn’t the rhetoric or mission of these protests, which advocate something much more extreme: abolish ICE. Not replace ICE, reform ICE, but abolish it. We want a country, we want sovereignty, but we aren’t willing to empower the authorities necessary to maintain our border. This position is irreconcilable.
Of course, only the least serious demonstrators would give that account to save face; at the core of the protest is something most Americans would find much more sinister. What is at the core of the recent anti-ICE protests is the belief that laws maintaining the sovereignty of the United States are illegitimate. That Americans possess no right to have a country at all. To many, this statement will appear to be going down a slippery slope, but if we are to take the logic behind immigration laws and their enforcement seriously, it is obvious that without them, we have no country.3 This line of reasoning will not persuade those who don’t believe in countries or borders, but my suspicion is that most people taking up their signs to protest ICE don’t actually want what they are protesting for.
When pitching this argument to a friend, he countered, “The protests do have a specific achievable goal, that is, we want ICE to leave our community.” While certainly more actionable than the abolishment of ICE, this account still struggles under the test of unjust laws. Who gets to decide which states ICE can remove people from? Is it unjust that immigration law is under the umbrella of the federal government? One might remember the Nullification Crisis of 1832, when the great state of South Carolina decided the laws of the federal government did not apply to them when they did not approve. This is not how federalism works. No state can declare federal law carrying out an explicated duty of the Constitution null and void because it simply does not agree.
Perhaps there is no unjust statute to be protested in the case of ICE, but rather, there are actions being taken by ICE that are unlawful, like the suspension of habeas corpus. What should we do then? I would suggest turning back to the words of Dr. King, who wisely states that “in any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices are alive, negotiation, self-purification, and direct action.” The accusation that ICE routinely violates the rights of habeas corpus doesn’t even survive the first step. If a person is given an order to appear in court, and they fail to appear, and then are arrested, have we violated their right to appear in court? Surely not, yet this is the justification for many of the deportations happening right now in our country. If we were so concerned about immigrants not having their day in court, wouldn’t our “direct action” involve escorting our immigrant friends to their local immigration court?
I submit that I have complaints with ICE. It is disconcerting that they drive unmarked cars and conceal their faces; unfortunately, US citizens are mistakenly caught up in ICE raids; it brings me no sick pleasure watching hard-working immigrants being removed alongside the non-working and criminals, as necessary as it is to enforce immigration laws. However, these are not grievances that render ICE an unjust institution, and they do not prompt the direct action we have witnessed by demonstrators across the country.
Liberal activists want to live in the unfulfillable middle, where they can express outrage over perceived injustices without having to grapple with the consequences of reform stemming from the outcry. Without cultural, political, or legal intervention, these protests will inevitably devolve from ‘civil disobedience’ to mob rule – there is no end goal to be achieved beyond the destruction of our country’s sovereignty.
This is a reduction of King’s view for brevity’s sake, and he believes that just laws can be broken if they are being applied in a way that is unjust. His example in the Letter is that he was arrested for parading without a permit, and while there is no problem with such a law requiring a permit, because of the fact that the permit law was being used to restrict Civil Rights activists’ freedom of speech, disobedience was appropriate. The point still stands that Dr. King’s framework here requires civil disobedience to be a response to injustice within law.
It could be objected that I am running together two distinct waves of protests, the lawful and unlawful ones. When I speak about the willingness to break just laws, I am speaking of the unlawful protesters, or those who the Trump admin calls “left-wing agitators”: those such as the late Alex Pretti and Renee Good would fall under the latter category while the Brown student protest marching downtown belongs to the former. Still, both types of demonstrations are vulnerable from the same lack of vision or actionable goal for reform.
This is a claim I haven’t properly defended because it isn’t central to my argument, but roughly the account is that 1) sovereignty requires a distinct political community, 2) in order for a political community to be distinct its must have the ability to self-determinate, 3) therefore from 1&2, sovereignty requires the ability for a political community to self-determinate, 4) self-determination requires rules of membership, therefore from 3&4, a sovereign country requires rules of membership (AKA immigration law).