A thought experiment about immigration

[Frank Cross]

Forgive my departure from doctrinalism, but I have difficulty dealing with 
fairly implausible scenarios.  I think that in no foreseeable future will 
there be a threat of massive immigration of those who would reject our 
freedoms.  Hence, it doesn't make sense to design constitutional law for 
such an unlikely distant scenario.  Of course, if the threat did come to 
pass, I agree it would be a concern.  But we would just change 
constitutional law, and reintroduce plenary power or otherwise discourage 
it.  Doctrines are altered all the time to conform to changing realities.

How about my scenario.  I'm assuming, Eugene, that you wouldn't introduce 
an authorized religious test into UCLA Law hiring, on the farfetched 
scenario that the school might be overrun later by fundamentalists.


At 11:08 PM 2/23/2006, Volokh, Eugene wrote:
>         Well, I hope the thought experiment suggests something about the
>pragmatic question involved -- how sanguine should we feel about letting
>people into our self-governing structures?  Even shifting the
>hypothetical to refer to religious schools, I suspect that few people at
>secular schools would feel that positive about merging with Ave Maria or
>Regent, even if they were comfortable with the abstract scholarly and
>teaching qualities of the faculties of those schools.
>
>         There are of course two follow-up questions.  First, even if we
>are pragmatically troubled by the prospect of letting in our future
>co-governors who disagree with us about many important things, should we
>nonetheless feel normatively obligated to set aside those pragmatic
>concerns?  I read most of the posts that responded to mine as making the
>pragmatic "don't worry" argument rather than the normative "even if you
>worry, you nonetheless may not exclude people based on those worries"
>argument; but the normative argument is certainly plausible.  I wonder,
>though, how strong that normative argument is, especially when one
>shifts outside the academy, and to immigration -- again, if the
>pragmatic concern is justified.
>
>         The second is Frank's excellent point that our pragmatic worry
>may be much less if we're letting in a few people than if we're letting
>in a vast number.  I alluded to that, I think, in my original post.
>
>         But my original question had to do with whether the plenary
>power doctrine was sensible constitutional law.  And here I'm not sure
>that the distinction between letting in a lot of people and letting in
>only a few is relevant.  I assume that if the plenary power doctrine
>were set aside, and religious or ideological discrimination against
>would-be immigrants were held unconstitutional (just as such
>governmental discrimination against U.S. residents is unconstitutional),
>that would be equally true whether the discrimination is against a few
>immigrants or against tens of millions.  Presumably the government would
>still be free to cap overall immigration -- but it would not be free to
>allow broad immigration and yet cap the influx of people whose views the
>current American majority found quite troubling, and whom the current
>majority didn't want to accept as their new governors.
>
>         Am I mistaken?  If the plenary power doctrine were rejected in
>favor of the principle that the First Amendment applied to the
>immigration context, would the courts nonetheless be likely to draw a
>distinction between impermissible religious/ideological discrimination
>in choice of a few immigrants and permissible religious/ideological
>discrimination when the matter involved a stream of many millions?
>
>         Eugene
>
> > -----Original Message-----
> > From: Frank Cross [mailto:crossf at mail.utexas.edu]
> > Sent: Thursday, February 23, 2006 5:40 PM
> > To: Volokh, Eugene; conlawprof at lists.ucla.edu
> > Subject: Re: A thought experiment about immigration
> >
> >
> >
> > 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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> > **********************************************************
> >
> > Frank Cross
> > McCombs School of Business
> > The University of Texas at Austin
> > 1 University Station B6000
> > Austin, TX 78712-1178
> >
> >
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
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>Please note that messages sent to this large list cannot be viewed as 
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**********************************************************

Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178