Letting in your future rulers,
the plenary powerdoctrine,and ideologica...
Malla Pollack
mpollack at uidaho.edu
Sun Feb 19 15:37:20 PST 2006
James Maule sent this post to me off list first, below is my reply
originally sent off list (Which of course did not convince him any more than
he convinced me):
We both agree on the "values" you just listed, but I decline to accept your
bate. Factually, I think you are overstating the problem. I believe that
very few societies approve your list of horribles and that such approval
tends to disappear with entry into the type of polyglot commercial society
an immigrant would meet inside the USA. Since my father and most of my
grandparents were born in Polish/Russian ghettos I have had experience of
how USA openness tends to tug open most people (or at least their children).
Doctrinally, I refuse to say that the USA must be based on any particular
set of values (especially since you seem to be doing the traditional
Christian game move of equating some form of Christian ethics with "natural
law"). The core problem of government is allowing society to work despite
reasonable disagreement. Such problems have to be worked out in messy,
messy practice by dealing with those people who disagree with you.
Once
"we" allow some a priori list of values to trump, we have IMHO a theocracy.
To my Jewish eyes, theocracy is a frightening enemy which has a proven track
record of wrecking horror. I am much more afraid of the (somewhat
realistic) possibility that the so-called "religious right" or "moral
majority" will try to control dissenter's actions than I am of the (to me
unbelievable) scenarios you paint.
Of course, conditions might occur which would change my decision, but I
don't see any realistic possibility of any of your horribles.
Malla Pollack
Professor, American Justice School of Law
Visiting Univ. of Idaho, College of Law
mpollack at uidaho.edu
208-885-2017
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of James Maule
Sent: Sunday, February 19, 2006 3:24 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Re: RE: Letting in your future rulers, the plenary
powerdoctrine,and ideologica...
Would you say that of every value that America (or the majority of
Americans) hold?
What of the value that discourages murder? Or the value that
discourages rape? Or the value that discourages slavery? Or the value
that discourages sale of children?
There are societies in which people so act, as a matter of societally
favored behavior. Are you saying we give emigrants from those
societies
a chance to change our minds, and simply hope we are more persuasive?
Or is the flaw of democracy that if 51%, or 75% or 90% of the
population decides slavery is ok, it should be ok?
Or is there some higher something (natural law, deism, theology,
what?)
that should trump such results?
Jim Maule
----- Original Message -----
From: Malla Pollack <mpollack at uidaho.edu>
Date: Sunday, February 19, 2006 5:09 pm
Subject: RE: Letting in your future rulers, the plenary power doctrine,
and ideologica...
> I have been listening with enjoyment to this chat, but would like
> to put in
> a plea against "assimilation" and in favor of "enrichment." "Our"
> :-)
> culture, country, discussion benefits more from disparate points
> of view and
> experience than from mashing all incoming bananas into assimilated
> mush.This statement is part hope and part seat of the pants
> empiricism. Perhaps
> "we" are wrong about some of "our" current values; the First
> Amendment gives
> new arrivals a chance to convince "us" of this. "We" get a chance
to
> convince new arrivals of "our" beliefs. Some of the most mind
> destroyingstatutes and policies are based on the assumption that
> "our" values must win
> (so that we should fix the rules of the game to make sure of our
final
> victory).
>
> Malla Pollack
> Professor, American Justice School of Law
> Visiting Univ. of Idaho, College of Law
> mpollack at uidaho.edu
> 208-885-2017
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
isomin at gmu.edu
> Sent: Sunday, February 19, 2006 1:59 PM
> To: DavidEBernstein at aol.com
> Cc: VOLOKH at law.ucla.edu; conlawprof at lists.ucla.edu
> Subject: Re: Letting in your future rulers, the plenary power
> doctrine, and
> ideologica...
>
> In extremely brief response:
>
> 1. Actually, quite a few limits on government power do survive
> despite lack
> of support from public opinion (e.g. - many of those enshrined in
> the First
> Amendment). Also, a categorical ban on Muslim immigrants or
> immigrants from
> particular countries would be likely to meet strong oppositio in
many
> quarters too. Ultimately, I think our limited efforts are better
> to put into
> the task of limiting govt than into the task of bolstering plenary
> powr.
> 2. David is right to emphasize the importance of search costs. But
> I'm not
> convinced they are so great as to make a categorical ban based on
> religionor country of origin a preferred policy. I bet taht that
> the extra tax
> revenue from the people we allow in from Muslim countries is more
than
> enough to pay the relevant search costs. However, this point is
> beyond my
> expertise and beyond the subject of the list, so I won't try to
> argue it in
> detail.
>
> 3. Germany and the US are different in various crucial respects.
> To take 2
> of the most important: Germans are less willing to let immigrants
> assimilateand German labor market regulations make it difficult
> for immigrants to find
> jobs (thus further retarding their integration into society). I
> have some
> personal acquiantance with this, as some of my own relatives
(Russian
> immigrants to Germany) have encountered both of these problems. To
> make a
> long story short, as I am once again wondering off-topic, the
> preferablesolution is a combination of open labor markets and
> assimilation. And even
> in the German case, I'm not convinced that they would have been
> better off
> had they never let in Turkish and other guest workers in the first
> place.
> Ilya Somin
> Assistant Professor of Law
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/
>
> ----- Original Message -----
> From: DavidEBernstein at aol.com
> Date: Sunday, February 19, 2006 10:21 am
> Subject: Re: Letting in your future rulers, the plenary power
> doctrine, and
> ideologica...
>
> > I appreciate Ilya's positions, but (1) no limits on government
> > power are
> > going to survive if public opinion doesn't support them, as our
> > own history
> > already shows; (2) one has to balance the potential for abuse of
> > the plenary power
> > with the search costs involved in requiring more nuance; (3)
> > Germany and other
> > countries tried the solution of letting immigrants in by not
> > allowing them
> > citizenship, and wound up with a disgruntled underclass.
> >
> > In a message dated 2/19/2006 2:45:31 AM Eastern Standard Time,
> > isomin at gmu.edu
> > writes:
> > This is a difficult problem, and Eugene is right to raise it. I
> > would make 3
> > points:
> >
> > 1. This dilemma strengthens the argument for imposing strict
> > constitutional
> > limits on the power of government.
> >
> > If goverment lacked the power to engage in censorship, regulate
> > personal
> > behavior (e.g. - force women to wear veils, etc.), and so forth,
> > we need not fear
> > letting in people who disagree with our values on these issues.
> > The reason why
> > the US (and even more so European nations) face a difficult
> > tradeoff in this
> > area is because we have allowed the power of government to grow
> to
> > such
> > enormous lengths.
> >
> > 2. Even given the overgrown nature of the modern state, I'm not
> > convinced
> > that plenary power is the right solution to the problem.
> Unlimited
> > power over any
> > issue area is rarely a good solution to ANY problem, in my view,
> > given the
> > strong tendency of government to abuse its powers. Perhaps
> > Congress should have
> > the power to exclude people on the grounds that they have
> > extremely illibera
> > l views and would be bad "co-rulers." But that doesn't mean that
> > it should
> > have the power to exclude people for whatever reason a
> > congressional majority is
> > willing to vote for.
> >
> > 3. The real problem (except in the case of terrorism) is not
> that
> > people come
> > in, but that they get voting rights. It seems to me perfectly
> > reasonable to
> > require stricter conditions for the acquisition of the franchise
> > than for mere
> > entry into the country, or even long-term residence. Thus, maybe
> > Congress
> > should have broader power to deny citizenship (which gives
> people
> > the power to
> > become "co-rulers") than it does to deny mere entry.
> >
> >
> > Ilya Somin
> > Assistant Professor of Law
> > George Mason University School of Law
> > 3301 Fairfax Dr.
> > Arlington, VA 22201
> > ph: 703-993-8069
> > fax: 703-993-8202
> > e-mail: isomin at gmu.edu
> > Website: http://mason.gmu.edu/~isomin/
> >
> > David E. Bernstein
> > Visiting Professor
> > University of Michigan School of Law
> > Professor
> > George Mason University School of Law
> > http://mason.gmu.edu/~dbernste
> >
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