A thought experiment about immigration

Thu Feb 23 17:40:17 PST 2006

Ok, I don't get this analogy.  Suppose instead that the Dean of a Law 
School decides to hire a couple of Muslim faculty, making them a few 
percent of the faculty.  Do you (a) say that they should be excluded 
because they might blow up the building or bring in a lot more Muslim 
faculty who would change the culture or (b) accept them as part of 
tolerance and for whatever value they bring.

I come late to this debate.  If the issue were.  Should we let 100 million 
Muslims immigrate to the US suddenly, I would say no.  But that's hardly a 
risk.  I think the US actually benefits from some small Islamic immigration.

At 06:53 PM 2/23/2006, Volokh, Eugene wrote:
>         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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> > >
> > _______________________________________________
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> >
>_______________________________________________
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>Please note that messages sent to this large list cannot be viewed as 
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McCombs School of Business
The University of Texas at Austin
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