
We’ve seen an increasing number of anecdotes trickling out about once-loyal voters rejecting the Administration’s ham-handed deportation policies. Though it’s hard to derive meaningful data from isolated anecdotes, the number of stories like this one and this one about Trump voters getting burned by the administration they once supported. Many stories share a theme: “we” thought the Administration would only deport “criminals,” and we don’t consider ourselves criminals.
On one level, they’re correct: under American statutes, immigration falls under civil, not criminal, law. “Illegal” immigration is a non-category, because the word illegal refers only to crimes, not civil violations. But on another level, this reveals something uncomfortable for many Americans, that “crime” itself isn’t a fixed concept. Many undocumented immigrants don’t consider themselves criminals because they’ve committed no violent or property crime; so the Administration simply redefines “crime.”
Much American political discourse centers on “crime,” especially when Democrats hold the Oval Office. As sociologist Barry Glassner writes, fear of crime is a powerful motivator for tradition-minded voters, a motivator Republicans employ effectively. Glassner writes about how rabble rousers used fear of crime to shanghai the Clinton Administration, but the same applies broadly whenever Democrats hold majority power. We saw it during the Obama and Biden years too.
However, exactly what constitutes crime depends on who does the constituting. My core readership probably remembers John Erlichman, former White House Counsel, who admitted the Nixon Administration simply fabricated the War on Drugs as pretext to harass anti-war and Civil Rights protesters. The notorious Comstock Laws channeled one man’s sense of injured propriety to criminalize porn, contraception, pharmaceutical abortion, and the kitchen sink. Moral umbrage beats harm in defining “crimes.”
This doesn’t mean harm doesn’t exist or states should repeal every law. Murder, theft, and sexual assault are clearly wrong, because they cause manifest harm and devalue victims’ lives, bodies, and labors. But these transgressions only become “crimes” when governments pass laws against them. Legal philosophers might debate whether decriminalizing murder would make murder happen more often. Personally, I doubt it; neither Prohibition nor its repeal affected drinking numbers much.
Prohibition, therefore, proves the moral fuzziness of crimes. Both the Al Capone-style Prohibition, and contemporary drug prohibition, arose not from obvious harm (most pot-heads are too lethargic to hurt anybody), but from moral panic and public outrage. Governments made laws against substances lawmakers found abhorrent, then assumed citizens would avoid those substances, simply because they’re illegal. Then they act surprised when drinking or drugs persist.

This happens because these things aren’t innately crimes; they become crimes because lawmakers make laws. Similarly, while it’s clearly harmful if I steal money from your wallet, other property “crimes” have squishier histories. Squatting, for instance: once legal, it became illegal in America, as James Loewen writes, largely to circumscribe where Native Americans were allowed to hunt and camp. Lawmakers created laws, where none previously existed, to punish transgressors.
Immigration law follows similar patterns. Abrahamic scripture urges the faithful to welcome immigrants because, in that time, borders didn’t really exist. People moved freely, and provided they followed local laws and customs, largely changed nationhood liberally. Though serfdom tied workers to lands and lords in the late medieval period, modern concepts of the nation-state and international borders existed only as legal abstractions. Only during wartime did states enforce borders much.
This Administration can redefine civil infractions, like undocumented immigration, as crimes, because that’s how things become crimes. States will borders into existence by legal legerdemain, then demand that people remain permanently circumscribed by these fictional lines. Perhaps that’s why “the Wall” looms so large in MAGA mythology: because borders don’t really exist, so we need something manifest and palpable to make borders real.
These MAGA voters who feel betrayed because the Administration deported their loved ones, assumed that they weren’t “criminals” because they used a broad, popular definition of criminality. They didn’t perform acts of violence or property destruction, they reckoned, so therefore they weren’t criminals. They didn’t anticipate the Administration using crime’s fuzzy, amorphous nature against them, and therefore were caught unprepared when the definition of “crime” moved to surround them.
Civil society has two responses available. We could eliminate self-serving, avaricious laws, and allow people more discretion. There’s no objective reason people must live within certain borders, except that lawmakers need to control despised minorities. But we know society probably won’t choose that response. More likely, our lawmakers will write harsher, more draconian laws to eliminate this flexibility. Which will then be used against us ordinary people.