Immigration and Law: Red Mass, Archdiocese of Galveston-Houston

Immigration and Law

Red Mass

Archdiocese of Galveston-Houston

30 October 2018

The topic this evening is immigration and law. I pray you ask for the intercession of St Thomas More, patron saint of the legal community. He had a gift for distinguishing between the chaff and the wheat when it came to discerning what was relevant in deciding the great issues of his day. His soul was supple, never fastidious. Our public discourses and decision-making need the cultivation of the practical goodness, free of pedantics, that St Thomas More exemplified.

1. The Good of Human Relations

Pope Benedict XVI said the following in Caritas in Veritate no 7:

The more we strive to secure a common good corresponding to the real needs of our neighbors, the more effectively we love them. Every Christian is called to practice this charity, in a manner corresponding to his vocation and according to the degree of influence he wields in the pólis. This is the institutional path — we might also call it the political path — of charity, no less excellent and effective than the kind of charity which encounters the neighbor directly, outside the institutional mediation of the pólis.

The political world Catholics in the United States inhabit seems to have no room for the kind of political path of charity Pope Benedict wrote about. Charity has been privatized, that is to say minimized to a purely individual response to another individual’s situation. Charity as a notion that influences political judgment is ancient in the Church, but has all but disappeared in modern political discourse. In a nutshell, the Christian application of the parable of the Good Samaritan on the level of communal responsibility has been part of the Church’s preaching tradition for a long time. Theologically, this is rooted in the notion that the pursuit of justice in society is anemic and easy prey to self-interest without the selfless discipline the gift of charity provides.

Catholic moral teaching, including the Social Justice magisterium, presumes a metaphysics of human nature in relation. We come into this world connected to each other and this begins in the family. These connections are not volitional in origin. They are part of who we are as individuals. From family flows community and nation and world, all of which are traceable to the God who created us “not to be alone.” These relations are injured by sin, self-interest and passions of retribution, and the redemptive grace of Christ is meant to extend to the healing and strengthening of all these relations by faith, hope, and charity.

The Church stubbornly insists that human political judgment cannot prescind from a metaphysically prior existential relatedness of all human beings.  This priority in being of human solidarity is more substantive than subsequent decisions involving political governance. Governance, in fact, is ordered to help place in right order and practice the prior metaphysics of human relatedness.

Part of our current predicament is that individuals' relations to the world outside ourselves are no longer widely understood as involving a given solidarity with the rest of the human race. It is increasingly difficult to account for any human relations, apart from those we will into being. Our wider culture has little basis to talk about mutual concern and compassion apart from the language of purely willed associations. These willed associations resolve to isolated individuals who tend to view relations indifferently if not suspiciously, and who understand themselves radically free to decide what relationships may be allowed to impact decision-making. When social relations are conceived as fundamentally voluntary, they are subject to severance for whatever provocation an encounter might unpleasantly cause. The “I do not want to deal with you” that is an ever present temptation to fallen nature has become a normative and politically acceptable response to social questions.

When there is no intellectual respect within public discourse for the given of human relatedness, we end up with what Pope Francis calls the culture of indifference. Indifference perceives no moral claim based on prior relation, and it kills by neglect. In the Church's life this breakdown of relationality is reflected in the privatization of charity, the loss of the sense that in addition to being an individually willed act of selflessness, charity is also a robust gift of social cohesion.

The eclipse of human relationality as a fundamental given of politics and law is the legacy of a post-Kantian search for an expression of law that serves as a kind of imperative derived a priori and applied universally. The tragedy of our age is that the a priori universal that seems to govern our moral/political discourse is that of individual autonomy and the radical freedom of the will. Limitation of freedom by secondary laws is permitted only in so far as the freedom is perceived to cause injury to another. At present the “perception of injury” that society permits to be legally prohibited capriciously excludes vast swaths of the population, from the unborn to the comatose patent, with the poor and the immigrant standing temporally somewhere in between.

In our current social predicament law is conceived as primarily a matter of discerning how to avoid the evils that unrestrained relationality might cause to the good of national sovereignty, community safety and personal rights. This state of affairs is precisely the result of the dropping out of our political consciousness a sense of legally expressed positive norms that govern the prior good of human relationality. Law is not often understood as aimed at promoting the good ordering of relations, so that goods can be achieved by individuals and families within a community; this seems to have passed out of our perception of social order.

This makes it extremely difficult, for example, to discuss legal reforms that address the human goods of immigrants and immigrant communities. Moral claims based on the responsibilities that flow from our common humanity are unintelligible to large parts of the population. Such a discourse would include issues of national security, protection against criminal elements and violence. But it would see these as threats against the nation and also as threats against the immigrant population itself.

It is cruelly ironic from a Catholic point of view that the same radical autonomy of the will that is used to sustain the argument for a human right to abortion is also used on the level of national policy to exclude the immigrant from humanitarian consideration. Notice I said humanitarian consideration, not open borders. Rhetorically, the unborn child and the immigrant as immigrant are described in terms of the threat they pose to either personal autonomy or national autonomy. As a society we have little room to consider the good that they are or that they may offer. In short, their status as human beings somehow related to us is excised from the discussion. Even before a discussion of law and justice, this poverty of philosophical anthropology cripples us at the outset.

2. Power and Reasonable Judgment

As Pope Benedict and Pope Francis have pointed out, a morality that takes as its first principle the radical autonomy of the will is in fact a morality that is based on power. Nietzsche and Darwin have strongly infiltrated our cultural caravan. The alternative view proposes that the first principle of moral discourse is based on a clear-eyed vision of what is good for the human person and the human community, regardless of their status or power. Thomas More understood this, as did St Thomas Aquinas before him.

Pope Francis, in Laudato Si’, number 105, soberly states it this way:

Each age tends to have only a meagre awareness of its own limitations. It is possible that we do not grasp the gravity of the challenges now before us. “The risk is growing day by day that man will not use his power as he should”; in effect, “power is never considered in terms of the responsibility of choice which is inherent in freedom” since its “only norms are taken from alleged necessity, from either utility or security”. But human beings are not completely autonomous. Our freedom fades when it is handed over to the blind forces of the unconscious, of immediate needs, of self-interest, and of violence. In this sense, we stand naked and exposed in the face of our ever-increasing power, lacking the wherewithal to control it. We have certain superficial mechanisms, but we cannot claim to have a sound ethics, a culture and spirituality genuinely capable of setting limits and teaching clear-minded self-restraint.

A principal factor affecting the political will to reach consensus on a whole host of social issues has to do with the way we reason about what law is intended to accomplish. We seem to have lost the public habitual ability to derive positive principles about what constitutes the human good, and then discern their applicability within contingent historical circumstances. Law in a Catholic Tradition is adaptably aimed at promoting the most basic human goods and necessarily involves thinking about goods and circumstances at the same time.  This is related to what Pope Francis, quoting Romano Guardini, describes as: “the responsibility of choice which is inherent in freedom”

Unfortunately, politics, and by extension law, are increasingly perceived as ahistorical. This is to say, the principles once written into law, are treated as universal imperatives that admit of no adaptation to particular historical circumstances. The law is the law. If we seem to be facing a choice between extremes, between high border walls on one side and open borders on another, it is because the discourse does not have room for integrating principles. Yes, nations have the right to sovereign borders, and yes people have a right to flee from mortal threats and seek life for themselves in another land. These are not in themselves absolute, however, and must be ordered in ways that address changing circumstances. The refugee crisis in Europe after the Second World War was just such an altered circumstance, and national laws adjusted to the circumstances in view of the human good that needed to be protected.

Catholic moral life and thought is essentially integrative, that is to say, it assembles relevant aspects of a human situation and in so doing begins the work of forming an evaluative judgment about how particular situations do or do not attain to the more universal human goods like life, family, work, and society as a whole. The move to the particular application is a move of practical reason that assesses goods and circumstances in a prioritized way. This way of thinking and speaking is essentially dialogical and integrative. It flows from a tradition of moral discourse that finds exemplary, though not exclusive, expression in Saint Thomas Aquinas.

The move from the reality of historical humanity, to the consideration of prioritized universal human goods, and then a renewed consideration of how to support these goods among particular peoples is the social analogue to what in Thomistic epistemology is the return to the phantasm. Such dialogical movement is a necessary and always needed verification of a rational conformity to the aims of the human good under diverse circumstances (adequatio mentis ad rem socialem). The move from the particular to the universal back to the particular again is basic in Catholic social teaching. This way of reasoning recognizes that at times particular laws need to change because human circumstances have changed to such an extent that human goods are no longer protected and are in fact imperiled.

The papacy in contemporary times, from Pope Pius XII to Pope Francis, has spoken with increasing urgency about the phenomenon of human migration, and what a Christian and politically responsible response looks like. Most people migrate not because they want to but because they sense that they have to in order to survive. Most people love their own native land, and would prefer to stay there to raise their families. The development of the Magisterium on this issue has been largely a matter of expressing how a theological anthropology rooted in the Scriptural tradition lived in the Church (presupposing as it does a metaphysics of human relationality) impacts good political judgement about the social order as it develops and changes. Obviously this teaching precludes an attitude that says "every country is on its own".

This aspect of the Social Magisterium responds to a recognition that the primordial goods of human life, family and social cohesion have been radically affected by the development of the modern nation-state and the emergence of post-modern global economic structures. Pope Francis is particularly focused on how the global economy unrestrained dehumanizes, it uses people for the creation of wealth. The economy was made for man, not man for the economy.

The attempt to formulate a cohesive immigration policy in the United States and elsewhere in the world is by its nature an attempt to move toward the particular application of more universal principles about human goods that should be protected in this globalized economic technocracy we call the post-modern, post-contemporary world. Laudato Si’ as a papal encyclical is largely about how we can order things in such a way as to avoid becoming a post-human world.

3. Church Teaching and Prudential Political Judgment

But there is at present no political consensus on principles, nor is there a will to craft a practical policy that aims to integrate human goods. The Church in the United States talks about these principles and proposes the need to integrate them in a practical way that both respects our national sovereignty and also lives up to our responsibilities to peoples beyond our borders in great, often life-threatening distress. Yet, it is at this more particular level of seeking to integrate principles politically that the Church is often told she has no relevance to the conversation. Often our own people do not know what to make of what bishops say about the application of principles to the issue of immigration. And this is because there is no longer much awareness that Church teaching does in fact impact prudential judgment about the public order in a way that is vitally relevant to the moral life of a Catholic.

It is important that we understand, however, that if the Church as teacher, and if Catholics in general, cannot engage actively in the articulation of norms that require careful prudential application in law and in practice, then we are, de facto, limiting ourselves to the poverty of the post-Kantian search for ahistorical universal norms I spoke about earlier. The Church does indeed teach norms derived from the Gospel that admit of no exceptions, but she teaches much more, also derived from the Gospel. The culture suffers and persons suffer if we do not also teach about human goods that must be balanced politically in a prioritized way.

A Catholic view of human goods argues that national policy should reflect the fact that the family is the most basic pedagogical vehicle for wider human and social cohesion. For this reason, to give an example, the bishops continue to ask that the law recognize that deportations resulting in the separation of parents and children is harmful to the good individuals, of the family, and of the country, and should be avoided whenever possible. If families are separated, the whole fabric of the culture unravels. The breakdown of the family structure vitiates the social good because it directly affects the formation of the young.

This view presupposes that it is grossly inadequate to base a national immigration policy on purely economic criteria. And if the Church is told that a nation is sovereign and can decide (if it wants to) to admit only those who reach a certain threshold of education or economic success, than we are back to a simple claim that we have the power to decide any which way we choose. And, thus, back to an illustration of what Pope Francis means when he says that as a political order we stand naked and exposed in the face of our ever-increasing power, lacking the wherewithal to control it.

The contemporary fact of global economic displacements, of war or lawless violence in numerous parts of the world must be addressed in a way that reflects a realistic response to a proximate threat to human life and its proximate goods. Obviously addressing this reality is not the responsibility of the United States alone. It is a world-scale tragedy that is unfolding before our eyes, not only in the Americas but in Africa and the Middle East as well.

Finally, part of what we lack today are reliable descriptions of what is actually happening that causes people to leave their country with their children. In the political order, to frame the discussion around cases of obvious crimes and misdeeds committed by members of “the immigrant population”, for example, aims rhetorically to short-circuit the discussion. Demonizing the poor serves to justify our not having to deal with them.

Within a generous response to immigrant persons and families can be accommodated a legitimate concern for stopping criminal elements from injuring others, either here or abroad. A great many immigrants that I know are seeking permission to stay in the United States because they are fleeing the very same kinds of criminal elements and activities that we rightly do not want causing harm here.

Ours is the poverty of a discourse that is governed by mutually exclusive and insufficiently nuanced narratives. This is abundantly evident in the current discussion about the “caravan”. Are they a band of marauders, or are they the poor fleeing from marauders? Realistically, I have little reason to doubt that criminal elements infiltrate caravans of immigrants who are in the great majority the poor, who are themselves fleeing from criminal elements controlling vast parts of their native countries. They travel in groups precisely so as to have a little security, since the governments responsible for defending human rights have not dedicated the necessary resources to defend the immigrant population threatened from all sides. If there are criminals in the caravan, the immigrant poor are the first to suffer the consequence of their presence.

To seek asylum at terrible moments of life is a human right recognized by the laws of the United States as well as of the Republic of Mexico. To ask for asylum is not a crime, and ought to be an orderly process and proceed in a way respecting the laws of each nation. Today the governments of the different countries affected by forced immigration can in fact cooperate among themselves to develop just ways to distinguish between persons and families truly escaping from humanly intolerable circumstances and those criminal elements that seek to infiltrate and manipulate the vulnerable condition of the immigrant. Our government, in fact has the means to engage in this kind of screening. I know because I talk to the Border Patrol agents in my diocese. Nevertheless, during the entire process, those who experience the need to seek asylum deserve respect for their humanity, human assistance, and protection from any type violent or criminal elements.

The government must formulate its laws, and the Church must participate actively in the discourse, placing before the eyes of our contemporaries the very thing that is so often eclipsed in our politically charged debates, namely the dignity of the human person in relation to the entire human family, whether they are rich or poor, born or unborn, healthy or comatose.

However it is that the nation chooses to enact and enforce its laws, though, the Church must, in the end, witness as a body to the truth of justice in charity, of freedom expressed as a freedom to protect and serve and in many cases save those vulnerable among us who have no standing in a world too often governed by concerns for power and self-interest. For this is Christ’s will for us. The Church’s witness should, like the Gospel, speak for itself.

In closing, as you may be aware, the federal government has sought permission to enter Church property in my diocese, for survey rights aimed at the eventual construction of the border wall. I had several amicable discussions with federal officials about this. And I have great respect for border security agents. I know many of them personally. Still, I decided not to consent to this request on the grounds that it limits the freedom of the Church and is a counter-sign to her mission. And thus the federal government has filed against us. This did not surprise me.  The Church is not angry with anybody, just interested in remaining who she is. A wall is not an intrinsic evil, but it is a prudential social disaster. I am a realist; the government has virtually unlimited resources, the Diocese of Brownsville does not. I have hopes we can prevail, but from what I am told eminent domain is rarely successful challenged. If in the end the wall is not built on our property, then we have defended our principled position; but, if in the end the barrier is built; it will not be because the Church signed a permission. This, would, in fact, speak for itself.

With that I will close, and thank you for your heroically kind attention.

+Daniel E. Flores

Bishop of Brownsville