Does the text of the Free Exercise Clause justify special judicial scrutiny of laws burdening religious freedom?
A foolish consistency, said Emerson, is the hobgoblin of little minds, but how are we to decide which consistency is foolish and which is wise? If in argument we cannot use inconsistency as a means of refutation, what can we use? And yet one knows what Emerson meant. Someone who sticks to principle come what may—for example, to speak the truth and never in any circumstances to varnish it—is not only foolish, but is also likely to be deeply unpleasant.
Nevertheless, inconsistency in political matters often reveals bad faith or special pleading, and in Britain recently there has been a revealing inconsistency of attitude towards immigrant workers in the healthcare and agricultural sectors.
When he left the hospital in which he had been treated for Covid-19, the British Prime Minister, Boris Johnson, praised the National Health Service and in particular the foreign staff who worked in it. This accorded with popular sentiment, even among intellectuals who generally despise Mr. Johnson. Soon afterwards, however, the decision to import Eastern European workers, particularly from Romania, to work on farms and pick fruit was greeted with outrage. This use of foreign labour despite the epidemic was something else entirely from its use in the NHS, being akin to naked exploitation.
It is certainly true that the fruit-pickers would not be well-paid. Moreover, their accommodation during their stay would almost certainly be uncomfortable and overcrowded. The work they would do would be hard and possibly back breaking. It is certainly not the kind of work I should want to do myself, though I might have thought of it as a bit of an adventure for a couple of weeks to earn some pocket money when I was nineteen. But the Romanian workers are not coming for a bit of youthful adventure: they are coming because they are poor and need the money to live.
The fruit season is short. If the fruit is not picked, it will rot where it grows. Prices are such that farmers cannot offer high wages, and it is surely a good thing that fruit is available at a price that everyone can afford. There have been appeals to the British unemployed (in whose numbers there has been a sudden and great increase) to do the work, but they have not responded. The wages are not such as to attract them, and their economic situation would probably have to be considerably worse before the wages did attract them—and if their situation were to worsen to such an extent, they might choose crime, riot, disorder and looting rather than fruit-picking as a means of getting by economically. As for coercing the unemployed to take the work that is theoretically available to them, for example by withdrawing their social security unless they agreed to do it, the political repercussions would be too terrible to contemplate. It is easy to see in the abstract how our system of social security distorts the labour market, such that we have to import labour to perform such unskilled tasks as fruit-picking, but now is not a propitious moment at which to try radical reform. In politics as in life, you are always starting out from where you are, not from where you should have been had your past conduct been wiser or more prudent.
It seems to me, then, that the importation of East European temporary labour is justified and even beneficial, assuming that it is voluntary and not coerced at its source in a way that makes it a form of slavery. Insofar as the labourers recruited may be assumed to be low-skilled persons in whose education and training little has been invested, their work in a foreign country is a large net benefit to their own country.
By contrast, a great deal of the foreign labour recruited to work in the National Health Service (much, but not all) is highly trained at great cost to the countries, often poor, from which it is recruited. Of course, they transfer money back to those countries, which is a benefit to them, but they also deprive those countries of their much-needed, highly skilled and expensively trained services. Where the countries themselves are not the poorest, there is a chain reaction: those countries start importing expensively trained people from yet poorer countries. In the end, it is the poorest who are deprived, though they may also benefit from financial remittances.
Naturally, we do not want a world in which individuals are forbidden from seeking a better life for themselves, one in which they are trapped in the country in which they have been educated or trained. And perhaps we may congratulate ourselves that we have a country in which highly trained people want to work. But our self-congratulation should be tempered by reflection on why our country is unable to supply the need for skilled labour from its own population. We need to import doctors, scientists, and nurses, but not hairdressers and tattooists. Nor do we need to import the economically inactive: we have plenty of those recruited from our own population.
That we “celebrate” (to employ the current cant expression) foreign workers in the National Health Service but lament or reprehend the importation of fruit-pickers from Eastern Europe is surely indicative of willful avoidance of difficult and disturbing questions. We think in connotations rather than in denotations. We see what is on one side of the curtain but choose not to look behind it.
The foreign labour in the health service is praised because it performs work that is “noble,” as caring for the sick is indeed noble. Moreover, in the British system it is not performed for what many of the intellectual class would consider “filthy lucre”—though British doctors have not hesitated to negotiate lucrative contracts for themselves. Picking fruit, however, is not noble, rather the reverse. It is unskilled, poorly paid, unprestigious, and is performed “only” so that someone (the farmers) may make a profit. And the farmers can do so only by exploitation, or taking advantage, of the poverty of others.
Inconsistency of attitude to imported labour is not in itself wrong. Indeed, to have a completely consistent attitude without nuance—all imported labour is good, or all imported labour is bad—would be absurd, a foolish simplification of the complexities and ironies of human existence. It is perfectly possible that there is no single “correct” attitude to it, since advantages and disadvantages may be incommensurable. But examination of inconsistency can reveal a hinterland of attitudes, so to speak, that need to be brought into the open.