Photo credit: Corbis
I hope that this link works.
Here's what the link should do.
It should take you to the Annenberg Media "learner.org" site. The link above is for a discussion on immigration law. If you get stuck at registration, go ahead. It's free and immediate. If you get stuck, the main page for this series of videos is here. Scroll down to “11.Immigration Reform” and click the “VoD” button. You will be asked to register. It’s free and fast.
For those of you who remember this program, originally aired in 1984, it's instructive to be reminded of how the debate on immigration reform was framed 24 years ago. Twelve years before this program aired I was working with illegal immigrants to improve the conditions that the users of this illegal labour provided.
In the series of posts where I have attempted to follow the theme of Trust and the Level Playing Field, I started writing after posting an article by Mr. Arrigo Levy originally published in the Saturday Review. In 1976, between the time President Carter was elected and then became President of the United States, an argument was being developed that our system of democracy needed to be replaced.
It needed to be replaced because there are those, who view themselves as elite, who are stymied by a system which protects individuals through the establishment of fundamental protections against the government, known to us as our constitutional rights. But the expression “constitutional rights” is not a complete expression of the power of our constitution. Too often we hear discussion about the relationship between the state and the individual as being defined wholly by these constitutional rights. That is, those rights that are generally defined as residing within the context of the Bill of Rights, the first ten amendments to the Constitution.
But our protections under the Constitution are not limited solely to those rights enumerated under the Bill of Rights. The bulk, the majority of our protection from our government comes from the main body of the text, the Constitution itself.
What does this reliance of law mean to those of us who engage in a discussion on the rights of illegal immigrants? The case of Mayor Rudy Guiliani is the most instructive. Prior to his coming to the office of Mayor of New York City Mr. Guiliani’s first instinct is to rely upon the law for guidance.
You’ll see the tension between conservatives and liberals in the video link. Most notably, I direct your attention to the discussion of a federal attorney, Mr. Guiliani, and a federal judge, a Mr. Shoob. (This discussion begins about 20 minutes into the video.)
Mr. Guiliani talks about the law. Mr. Shoob talks about what is right in his opinion.
The process we use to determine the status of individuals, to the status of legal immigrant, and the process we use to determine the status of illegal immigrants is a single process. And it’s a frankly simple process. A Bill is proposed. The Congress votes on the Bill. If passed, the President signs the Bill into Law.
Pretty simple, huh? Simple, yet what happens when competing visions of what should be incorporated into law meets disagreement?
In “Eurocommunism: A foot in the Door or a Seat at the Table”, Mr. Levy says:
“…the democratic West ought to concentrate its attention on the hasty construction and completion of Western and worldwide institutions, in order to strengthen our economies and our societies and to contain within a more stable framework the great risks of Euro-communism.”
Unfortunately for Mr. Levy, our system of government is not well-suited for this type of hasty construction.
One of the fundamental differences between American democracy and European democracies is the value placed upon the individual living within those societies. The process that was designed for changing the law is simple. And difficult. There is increasing difficulty in passing changes to current law because there is division between starting points in the purpose of law in our state and national legislatures. This difference is exacerbated by various externalities, among them a biased national and local press, criticism from various outside agencies—foreign governments and certain NGO’s, e.g., the United Nations, and public policy organizations that advocate changes to the structures of our state and national governments to fit their public policy goals.
For most of us, exposure to foreign law is based upon a quick reading of the differences between common law—based upon the English legal tradition—and the eponymous Napoleonic law. While it is true in the main that there exist huge differences in the presumptions of individual rights and liberties between these two systems, what is overlooked in most American classrooms is the American exceptionalism of American law and English common law. And that single difference is best defined as the concept of “class”.
In the United States we have no class structure. There is no recognition that membership of a certain group or party carries with it a presumption of special status. I believe that there are persons who would wish this were not so. And I believe that there are people living and working among us who carry on with their lives under the impression that they do belong to a different class, with certain exceptions, than the rest of us. But whether that person was a newpaper reporter or district attorney, that person found, much to his own disbelief, that the law of the land recognizes no special distinction such as class. And that all of us are required to obey the word and meaning of the law.
And it is no less imperative that we review the concept of class in the State of Oregon. In Oregon there are, have been and will continue to be attempts to promote certain individuals and organizations into a status with special privilege and legal benefits. There are also those who have worked to create a special place within their communities that provides them safe harbour from the demands of accountability for their words and actions.
For those of you who are truly curious about the nature and state of play of class and law, I refer you to Judge Robert Bork’s book The Tempting of America, Free Press, 1990. That Judge Bork is anathema to elitists is no surprise. Judge Bork has been demonized, and is demonized, every time his name comes up. Typically by people who have never read a word of his writings on judicial philosophy. (Most curious was my correspondence with Senator Bob Packwood f0llowing the publication of this book. I had been unaware of the enmity shown Justice Bork by Oregon’s junior senator. There is a certain karmic balance that can be shown between the senator’s treatment of Bork, and the Senate’s treatment of Packwood.)
The issue surrounding Judge Bork? Can you guess?
At issue was whether or not the wrongly decided Rowe v. Wade decision was, or was not, correctly decided. For elitists the issue is never one about law. For elitists the issue is always about getting what one feels entitled to receive. A strict adherence to law and the plain language of law limits what liberals can receive through a form of lawmaking known as judicial ukase. (For a brief description of the struggle between the plain understanding and enforcement of law, an article here from New Jersey Assemblyman Michael Patrick Carroll.)
“…(T)he hasty construction and completion of Western and worldwide institutions” contemplated by Mr. Levy is a goal of the international elite, but stands opposed in the United States not so much for its rightness or wrongness of outcome, but simply the role played by the legislature in determining what is or isn’t law for, or in, the United States. That the national legislative process is a deliberative process.
And within the constraints of the Constitution, the ability or inability of the legislature to make law that would take itself outside the constitutional limits of legislation.
And where those attempts at legislating outside the boundaries of permissible law vis Constitution, there is yet another deliberative process that would allow such a law; the amendment process.
But Mr. Levy points out the need for “hasty construction and completion”. Our legal system can respond quickly when it needs. (Please note there is no attempt at equivocation through my use of the “legal system” incorporating the entirety of its component parts; executive, legislative and judicial. For a better understanding of our legal system, the advocates of liberal policies tend to focus on the judicial, ignoring the role of the executive and legislative branches in determining what is, or isn’t legal.) And there’s a reason why the amendment process is ignored. The last amendment to our constitution was proposed in 1789. It was ratified in 1992. Is this relatively long process symptomatic or asymptomatic of our legal system? I assert that the legal system can respond quickly when it needs. The only caveat being that the legislative action must be constitutional. When it is extra-constitutional—and our national legislators dread the constitutional amendment process—we must find a sympathetic judge.
What does a conservative say when extra-constitutional law is proposed? Amend the Constitution. What does the liberal say?
Our legal system isn’t simply whatever a judge says it is. Although there is argument both ways. And beyond the federal legal system is another layer of legality, the state legislatures. No more important to our federal system than when there is need to further modify our Constitution through the amendment process.
How important is this legal process? What we define in large part as our “civil rights” refer directly to the first ten amendments to the Constitution. In reality, it is the original Constitution itself which is often overlooked by social or political critics. It is not the proposed legislative palliative to social ill being offered that is either good or bad. The question itself is, given the nature of the Constitution, is this proposed legal adjuncture within an area that is allowed or prohibited by law?
It is not whether or not the thing itself is desirable or detestable. The Great Dissenter wrote, “Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States”. (Oliver Wendell Holmes, Lochner v. New York, 1905).
You will hear echoes of Holmes in Bork. Why the Left demonizes Bork and worships Holmes has more to do with the amount of reading demonstrated by those opinions than the actual work of the authors themselves. And Holmes has the cool nickname. Bork was simply smarter than everyone else in the room.
But the pace of the legislative process is too slow for the Liberal when contemplating extra-constitutional activity. It’s much faster to enroll elitist judges to perform through judicial ukase the implementation of the Liberal agenda. What critics call “legislating from the bench”, requiring no debate or vote by the legislature at all. While much is made of the imperial Presidency, the elite rarely question the super-legislative role often adopted by the court. Because it takes an elitist to assert that one’s individual view or right or wrong is more important than the plain meaning of words.
So watch the video link above. And take to heart the words of these participants, especially the words of Judge Shoob. While cloaking himself in the warm and fuzzy robes of doing the right thing, he strikes a blow to the heart of American exceptionalism and egalitarianism. He invokes class over law. He replaces his view of what is right and wrong for the decision of the legislative.
The elite laud the Judge Shoobs of the world for their bravery, their willingness to achieve standing for the rights of the oppressed. The elite ridicule and lampoon the Robert Borks of the world for their solemn and somnambulant reading of words; preferring the solipsistic solatium of result over substance.
The elitists prefer results. The American tradition prefers law. The egalitarian concept of law. Where no class exists.