The Talmud and illegal immigration
The sages provide potential solutions to undocumented immigrant problem

With more than 10 million undocumented immigrants living in the shadows of the United States, proponents from both sides of the political aisle agree that something must be done.
Some argue that an offer of amnesty will allow for organized absorption of these otherwise invisible individuals. Citizenship for millions of able-bodied workers would increase total tax revenues on the state and federal levels, and allow the many “non-skilled” foreign workers currently working the fields and construction sites to continue legally filling positions that most Americans aren’t interested in to begin with. Beyond this, they argue, lies the human toll imposed on a growing population (many brought here as children) who find themselves in an impossible state of perpetual limbo and fear.
On the other end of the spectrum, we find equally impassioned factions lobbying for the deportation of all undocumented immigrants. Anything less, they argue, would be an insult to the millions of immigrants who went through the costly and arduous immigration process through the proper legal channels. Illegal immigration, they note, is a violation of federal law, and should be treated as such. Proponents for deportation also point to the tax burden which arises from caring for illegal immigrants (in health care, education and child care), and decry this unfair burden, which is ultimately passed on to legal, taxpaying Americans.
It seems that the only thing both sides can agree on is that the time has come to finally address the problem. As Jews, it would be enlightening to know how the sages of the Talmud might have addressed this conundrum.
Nochum Mangel and Shmuel Klatzkin (“A Torah Perspective on National Borders and Illegal Immigration”) point to two seemingly contradictory Talmudic principles that are pertinent to the discussion.
On the one hand we find the Talmudic principle of ein chotei niskar, which essentially means the sages of the Talmud were not willing to accept a potential legal outcome that would ostensibly reward someone who refused to abide by the law.
To relate this principle to the case of illegal immigration, an argument could be made that we mustn’t craft legislation that leads in any way toward citizenship, as this essentially rewards those who arrived on these shores illegally.
On the other hand, we find a separate Talmudic principle called takanat hashavim, an enactment made for the benefit of those who wish to repent from their past misdeeds. A classic example involves an unusual case discussed in Talmud Gittin (55a), of a thief who stole a crossbeam and subsequently built it into the structure of his house. According to strict Torah law, the repentant thief is obligated to return the exact item that he stole to its original owner. In this case, however, the sages knew that the repentant thief would have no other option but to deconstruct his house at great personal loss to retrieve the relatively inexpensive crossbeam — an exorbitant requirement that would discourage even the most contrite of men. The rabbis thus addressed this spiritual hurdle by allowing the thief to pay the value of the stolen beam to the original owner and thereby fulfill his halachic obligation. (It should be noted that the nature of the rabbis’ ability to circumvent Torah law is particular to the unique powers that Jewish courts have in monetary law, in particular.)
To draw a parallel, undocumented immigrants have, so to speak, built their homes (their familial and financial lives) illegally. And, if the only path to rectification would require the utter destruction of their houses (in our example, the equivalent of handing themselves over to the authorities and subsequently being deported), who amongst us would come forward? One might argue, then, that the principle of takanat hashavim encourages our government to create a system that encourages illegal immigrants to come forward for processing, with the promise that their lives, as they currently stand, will not be dismantled in the process.
To summarize, there must be a considerable consequence for the illegal immigrants’ past violation of American law (financial penalties, back-taxes or mandatory community service), but not one that would impose such a great sacrifice so as to discourage the undocumented immigrant from coming forward in the first place. This could come in the form of an amnesty of the kind last seen under President Ronald Reagan, or another type of documented work program that allows these residents to stay, work, pay taxes and/or potentially work toward legal citizenship.
Furthermore, while a government has the right to deport anyone living illegally in a country, it would seem a practical impossibility to locate and process the vast majority of illegal immigrants. If we are to solve the conundrum of the millions of undocumented immigrants currently amongst us, it would seem, then, that the only practical solution would be to create a system whereby the illegal immigrant is encouraged to come forward, to create a path toward rectification.
One more pertinent Talmudic source must be considered. The Mishnah in Gittin (4:6) rules that, although it is a great mitzvah to redeem Jewish captives, we are forbidden from overpaying the ransom money. The Talmud, in one of its explanations of the Mishnah, explains that we are concerned lest the overpayment incentivize future Jewish kidnappings.
In our discussion as well, is there not room for concern that lenient judicial measures (amnesty in particular) might serve to incentivize and embolden future waves of illegal immigration? If so, it would seem irresponsible for any bill addressing immigration reform to not simultaneously address pressing matters of border security.
In the end, no amount of legislation will ever fully curb illegal immigration. The migrant flocks to our country, not in the romantic hope of some far-off day in the future when he will be fully embraced into the national fold, but for the promise of something much more pressing and closer at hand — the hope of a better tomorrow for himself and his family. Can even the harshest of legislation ever fully curb such aspirations? Unless we are to become as barbarians, the answer is no. We must, then, find a way to best address this matter.

Leave a Reply