A thought experiment about immigration
Malla Pollack
mpollack at uidaho.edu
Thu Feb 23 17:05:10 PST 2006
I would take Eugene's argument more seriously if we were discussing the
amount of immigration proportional to his faculty hypothetical, but we are
not. Also unlike his hypo, immigrants do not get voting rights immediately,
or with out "indoctrination," or without having to swear allegiance to the
Constitution. Furthermore, I think that this is the type of situation were
empiricism may be the best guide. All the large immigrations into the USA so
far have improved the USA, despite contemporary arguments similar to
Eugene's.
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 Volokh, Eugene
Sent: Thursday, February 23, 2006 4:54 PM
To: conlawprof at lists.ucla.edu
Subject: A thought experiment about immigration
Here's one more item in response to last weekend's posts on
immigration.
Imagine that the Dean of George Mason University School of Law
approaches your law school with a proposition: Let's merge our two law
schools, and our two law faculties. This will give us all sorts of
valuable synergies, even if we don't physically move the schools. And
it won't interfere with faculty self-government -- all of us put
together will just be one big faculty, which will vote on policy
matters, appointments matters, and so on. Let's assume there are
plausible arguments that this will likely have at least some educational
and scholarly benefit. Let's also assume that the average scholarly and
teaching quality of the Mason faculty is the same as that of your
faculty. (I have very high regard for the Mason people myself.)
Here's one twist, though: Your law school, like most law
schools, is overwhelmingly liberal (at least by the standards of the
American public, if not of the legal academy). George Mason is mostly
conservative/libertarian. Mason actually has a smaller faculty than
yours (a bit under 40 full-time faculty members), and of course it's not
by any means politically monolithic; but its inclusion will still very
much change the political balance of your school.
Do you say "Absolutely!"? Do you say "We believe in the
marketplace of ideas, so we're eager not just to have conservative and
libertarian speakers coming to speak at our schools, but also to have
them vote in our faculty meetings"? Do you say "There are already many
people with whom I disagree on my faculty, so it really won't matter
much if the faculty is joined by a lot of other people with whom I
disagree"?
Here's my conjecture: Even though the Mason faculty are hardly
as different from you as the typical radical Muslim might be, and even
though law schools tend to have norms that frown on overtly partisan
ideological decisionmaking in the average hiring decision (i.e., at most
law schools it would be thought wrong to say "I won't hire X because I
don't like his politics and I'm afraid he'll vote for policies I
disapprove of"), many people on this list would be hesitant to adopt
this merger. And this hesitation will remain even if they're persuaded
that all the nonpolitical factors are neutral and possibly mildly
positive (e.g., that there won't be problems stemming from the faculty
getting too large, or that there won't be any degradation of average
quality). Even if you respect people on the other side of various
debates from you, you won't be eager to give them voting power in your
institution.
Should things really be that different as to letting in future
voters who'll govern your community and country, as opposed to letting
in future voters who'll govern your law school?
Eugene
> -----Original Message-----
> From: Elizabeth Dale [mailto:edale1 at bellsouth.net]
> Sent: Sunday, February 19, 2006 9:42 AM
> To: aleinikt at law.georgetown.edu; Volokh, Eugene
> Cc: conlawprof at lists.ucla.edu
> Subject: RE: Letting in your future rulers, the plenary power
> doctrine, and ideological restrictions on immigration
>
>
> I'm a little confused about an underlying premise in this
> question. There are many people on this list whose "views on
> free speech, gay rights, women's rights, and other matters
> (including religious freedom and separation of church and
> state) that may be quite different from" mine. I am also
> reasonably confident that the majority of the Supreme Court
> do not share my views on some of those issues, and that the
> same can be said of many members of Congress, the current
> president of the United States, and political leadership of
> my state. It is also probably true that my positions on many
> if not most of these issues are not shared by a majority of
> my fellow citizens.
>
> I'll be the first to admit that's it's not a very comfortable
> feeling to wake up and realize the things you value are
> marginalized in the polity you live in. But it's a pretty
> inevitable part of life in a democracy, I'd think, elections
> matter, after all. It's a good reason to have constitutional
> protections of minority rights/interests, and, at least in
> the context of some of the areas listed above, a very good
> reason to favor a separation of church and state.
>
> I'm not sure it's a reason to restrict immigation. I realize
> that this last point assumes that immigrants do not pose a
> threat to our fundamental constitutional order or democratic
> principles, but I confess I don't think there is a reason to
> restrict the access of some immigrant groups on the theory
> that they are philosophically/theologically opposed to democracy.
>
> For one thing, any argument that asserts that all people of a
> certain group (religion, ethnicity, or some combination of
> the above) are hostile to democratic values bans the
> dissidents within that group (who presumably do value
> democratic values) along with those who are philosphically or
> theologically inclined to threaten those values.
>
> For another thing, I think history suggests we are perfectly
> capable of fostering homegrown
> anti-democratic/anti-constitutional elements. So I'll grant
> Eugene's anxiety about the future of democracy, I even share
> it. But I'd argue that it is threatened (and always has been
> threatened) as much by people who are part of the polity as
> by those who seek to attack it from without. I don't think
> that's a situation that's unique to our day and age, it seems
> like a part of every generation in this country's history has
> been convinced that it will be the last to live under a democracy.
>
>
>
>
> Elizabeth Dale
>
> Associate Professor, US Legal History, Department of History,
> Affiliate Professor of Legal History, Levin College of Law
>
> University of Florida
> PO Box 117320
> Gainesville, Florida 32611
>
> edale at history.ufl.edu
> http://plaza.ufl.edu/edale
> 352-392-0271 ex 262 (phone)
> 352-392-6927 (fax)
>
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Alex
> Aleinikoff
> Sent: Sunday, February 19, 2006 11:21 AM
> To: Volokh, Eugene
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: Letting in your future rulers, the plenary power
> doctrine, and ideological restrictions on immigration
>
> Concerns about "future co-rulers" go back a long way in US history.
> Catholic immigration in the 19th century was opposed on "anti-Papist"
> grounds: the argument was that immigrants who became
> citizens would be more loyal to the Pope than to American
> notions of democracy. Claims that non-citizens were not
> ready for American political institutions and traditions
> confronted southern and eastern European immigrants and were
> also used to argue that the Constitution didn't "follow the
> flag" in the Insular Cases.
>
> Birthright citizenship in the US means that non-citizens make
> citizens (co-rulers, when they reach the age of 18)--not the
> usual way that clubs, associations or communities (or law
> faculties) make membership decisions, but a membership rule
> that does not seem to have disserved the nation. How far
> would Eugene press his point?
>
> Alex Aleinikoff
>
>
> Volokh, Eugene wrote:
>
> > Unless I'm mistaken, many scholars have criticized the
> plenary power
>
> >doctrine in immigration law. As I understand it, their arguments
> >-- and I think there is much to these arguments -- are that otherwise
> >impermissible discrimination based on race, national origin,
> ideology,
> >religion, and the like should be no more permissible in immigration
> >decisions, including decisions about whom to let into the
> country (or
> >whom to give permanent resident status or citizenship to), than they
> >are in other government decisions.
> >
> > Nonetheless, I've always been concerned about
> immigration (though
> I'm
> >an immigrant myself) in part because when you let in immigrants, you
> >let in your future (co-)rulers. A recent article, which
> reports that
> >40% of Muslim respondents to a survey wanted to implement
> Islamic law
> >in parts of the UK,
> >http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/02/
> 19/nsharia
> >1 9.xml&sSheet=/portal/2006/02/19/ixportaltop.html, reminds
> me of this.
> >We can be quite sanguine about immigration, but should we be
> quite as
> >sanguine about it if it means that millions of new voters will have
> >views on free speech, gay rights, women's rights, and other matters
> >(including religious freedom and separation of church and
> state) that
> >may be quite different from ours? (Those views may actually not be
> >that different from those of some of our fellow citizens;
> yet if we're
> >in the majority and those fellow citizens are in the
> minority, should
> >we be obligated to let in a wave of immigrants that can shift that
> >political
> >balance?)
> >
> > Naturally, we like to think that with the proper assimilationist
> >strategy, this wouldn't happen here; and I should also note that the
> >size of the US population certainly makes these concerns less
> >significant than they might be in, say, Norway or even the
> UK. On the
> >other hand, while we can try to get immigrants to assimilate to our
> >values, I find it hard to see how we can guarantee that, or
> even make
> >it highly likely (especially given the constitutional and cultural
> >constraints under which the assimilationist project may
> labor once we
> >get outside the immigration field). And if ideological and
> religious
> >discrimination -- either direct, in selecting which
> particular people
> >can come here or stay here, or indirect, in selecting quotas for
> >immigrants from various countries -- is unconstitutional
> when it comes
> >to a group that's likely to form 1% of the U.S. population,
> it seems to
> >me that it would be equally unconstitutional if the group
> were part of
> >a wave that would form 5% or 10% of the U.S. population, and thus
> >become a highly influential voting bloc.
> >
> > So this is a long way of asking: Is the plenary power
> doctrine, at
> >least as applied to ideology and religion, perhaps sound after all?
> >Or are the concerns I raise here either in fact unimportant, or in
> >principle impermissible for the legal system (including the
> immigration
> >system) to take into account?
> >
> > I should note, by the way, that I have little concern
> about Muslims
> >generally entering the U.S.; but I do have considerable
> concern about
> >the actions of some extremist Muslims overseas, which lead me to not
> >want to see people who share that ideology transplanted
> here. I should
> >also add that there are plenty of ideological groups in the U.S.
> >that I strongly disagree with. I'm not thrilled about their
> being my
> >co-rulers, either, and I wouldn't be surprised if they
> weren't thrilled
> >about me and those who share my views being their co-rulers.
> But the
> >fact is that we Americans are stuck with each other, gay
> activists with
> >anti-gay activists, feminists with anti-feminists, libertines with
> >puritans, and vice versa. It doesn't necessarily follow (or
> does it?)
> >that we should embrace being stuck with lots of people with whom we
> >equally disagree, but whom we aren't yet stuck with..
> >
> > Eugene
> >_______________________________________________
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