A thought experiment about immigration

[Volokh, Eugene]

	Do people think that having to swear allegiance to the
Constitution is really a serious constraint on the concern that I raise?
Presumably even an extraordinarily scrupulous person would be able to
swear allegiance to the Constitution even if he strongly opposes, say,
sexual equality, sexual autonomy rights, religious freedom rights, free
speech rights, and the like; Article V is, after all, part of the
Constitution, as are the rules for appointing Justices and amending the
Constitution through that alternative process.  And a not overly
scrupulous person (or one who doesn't really focus on the meaning of
that particular oath) would be even less constrained, it seems to me.

	As to "indoctrination," I thought it was Malla who saw
immigration as an occasion not for assimilating the immigrants, but for
enriching the nation by the introduction of the immigrants' perspectives
(presumably ones that haven't been assimilated, or at least fully
assimilated, to our own, or else they wouldn't be very enriching).  But
even if Malla's proposal is rejected, just how much effect would seven
years' worth of living in the U.S. have on the worldview of the typical
radical Muslim immigrant?  I'd love to think that the answer is "a vast
amount," as they see the superiority of our views to theirs (I speak
here of views on questions like, as I said, sexual equality, religious
freedom, free speech, the impropriet of governing society by Shari'a
law, and the like, not of views on purely theological questions).  I
just wonder whether it would be so.

	Finally, as I said before, I'd love to assume that because we've
done well with assimilating quite different religious and cultural
groups in the past, we'll continue to do so in the future.  I guess I'm
just not sure that this is so -- and, returning to the constitutional
question, I'm not sure that the Constitution requires Congress to assume
that this is so.  The plenary power doctrine is the device that gives
Congress the flexibility (which I recognize may well be abused) to weigh
the risks and benefits.

	Eugene

> -----Original Message-----
> From: Malla Pollack [mailto:mpollack at uidaho.edu] 
> Sent: Thursday, February 23, 2006 5:05 PM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: A thought experiment about immigration
> 
> 
> 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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> > 
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