Kennedy: Nobody’s buying it, and this is precisely why you should deal with arguments first.

Look, just to be clear, I think that there are plenty of racist creeps involved in immigration debates, but that Jason is not one of them. When I am arguing with them (contrary to Jason’s suggestion, I do argue with some of them) I don’t flinch at calling their position racist. That’s not a failure to “deal with arguments first;” it’s a characterization of the type of argument being mounted. Maybe a racist argument is cogent and maybe it’s not; but whatever it is somebody mounting one does have a responsibility to own up to the fact that that’s what she or he is doing.

However, I don’t think that that’s what Jason is doing, and whether anybody is “buying it” or not, I was not suggesting that it was. If you think saying “That’s mighty white of you” is necessarily intended as an insinuation of racism, you’re mistaken. (See, for example, here, here, or myself here, in contexts that clearly have nothing in particular to do with accusations of racism.)

If I wanted to say that his argument was racist, I would have said, “Your argument is racist,” or something to that effect.

DevP: “Immigration needs reform, and illegal immigration is indeed a crime.”

A crime against whom, exactly?

Thanks for this post. One correction, though:

“The Libertarian platform, which speaks to harming no other’s life or property, is silent (at this time) on the issue of abortion.”

Here’s the Platform as of the 2004 Convention, section 20 http://www.lp.org/issues/platform_all.shtml#womerigh:

“Recognizing that abortion is a very sensitive issue and that people, including libertarians, can hold good-faith views on both sides, we believe the government should be kept out of the question. We condemn state-funded and state-mandated abortions. It is particularly harsh to force someone who believes that abortion is murder to pay for another’s abortion.”

This plank has come under concerted attack from those who believe that the government has a right to commandeer women’s wombs for the benefit of fetuses they don’t want (most of them have aimed at getting the platform silent on this point, in the name of “not being controversial” or somesuch). But as far as I know, it’s still there for now.

Kennedy:

Mexican immigrants tend to have more in common than ethnicity. If a comparable number of demographically comparable Scots were entering the country I have little doubt the reaction would be similar.

Well, at least the reactions from nativist bullies were pretty similar when comparable numbers of demographically comparable Irish immigrants were entering the country.

So I’m sure it’s true that part of what motivates nativists is based on socioeconomic status at least as much as it’s based on race. Still, I’m not sure why this would make the argument based on something other than bigotry. Isn’t there class bigotry as well as racial bigotry?

The arguments of people like Du Toit are largely sincere, I think, and must be addresses on their merits in any case.

Right, but pointing out that an argument rests on bigoted premises isn’t necessarily an evasion of the merits of the argument. Bigotry is a form of collectivism, and if you have a general case against using violence on the basis of collectivist premises than afortiori you have a case against using violence on the basis of bigoted premises. So pointing out that someone is trying to use bigotry to defend aggression seems to me just as good an argument as pointing out that someone is trying to use other forms of collectivism (e.g. constitutionalism or democratic mysticism) to justify aggression. If the latter doesn’t work, the former doesn’t either.

Jason, I’m not insinuating that you’re a racist. “That’s mighty white of you” is an idiomatic expression that was once common among whites in the American South. It’s now used by some people, especially African-Americans, to sarcastically suggest that someone is being condescending or presumptuous (while presenting themselves as doing you a favor). The meaning is roughly equivalent to “That’s mighty big of you,” when uttered with a sarcastic tone of voice.

So what I’m insinuating is that pronouncements about who you’d “let … in” to other people’s property are condescending and presumptuous. I’m glad that you advocate measures that are less illiberal than those advocated by, say, Sandefur, but fundamentally it is not up to you to decide how welcoming or unwelcoming to be here. (To what are you “welcoming” people who aren’t setting foot on your property?) Much less is it up to you to decide whether or not to use violence against them to force them off of other people’s property (and then, having declined to, pat yourself on the back about how “welcoming” you are). Really, how dare you?

You could claim that you have some rights here because — as you argued in your reply to Kennedy — you have a right to use force against people who have harmed you or threatened to harm you. But I directly asked you what specific violations of your rights (threatened or enacted) you had in mind that would justify doing this to undocumented immigrants. And also whether arrest, confinement, and exile (“deportation”) was a proportionate response to whatever specific violation of your rights you had in mind. You haven’t answered either of those questions, but until you’ve answered them you haven’t provided any reason for claiming that you’ve got some kind of right to screen immigrants or enforce any immigration-restriction policy at all, as long as they are not trespassing on your own property.

As to the one serious question you do raise, forcing children to go to school is not a violation of anyone’s rights; it is fully proper that a society should do so. If kids don’t want to go to school, well, that’s too bad. They don’t have the full rights of a citizen until adulthood.

“Society” doesn’t force children to go to school. Their parents do; or their guardians do; or government truant officers do, depending on the breaks.

It may be that parents and guardians have a legitimate right to do that. If so, they get that right from the fact that they are, for some purposes at least, acting on behalf of the child for the purposes of contracts and legal decision-making.

Are you suggesting that government officials (legislators, school officials, truant officers, etc.) have the same rights to make decisions for children that their parents or guardians do? If you are, where do they get that right? (Do they have the right to make your children get braces or do their homework, if you don’t make them do it?)

Anyway, you didn’t suggest that your “civics lessons” would be limited to schoolchildren; you said that you’d “make everyone” take it. Since adult immigrants are currently forced to take civics classes as a prerequisite for naturalized citizenship, I took it that you intended to include adults as well as children. If that’s not what you meant, then I apologize for misreading you.

Jason:

As to Mexicans, I would let nearly all of them enter who wished.

Well, that’s mighty white of you.

Could you explain more carefully what specific immigrants have violated your rights in concrete, actionable cases, and what you consider to be a proportional response to those violations of rights? (Do you think, for example, that refusing to take a damned government-sponsored civics class is an actionable violation of your rights? Or that arrest, confinement, and exile is a proportional response to it?)

And as to civics lessons, how do you suppose that a liberal society either takes root or endures if its population does not understand or has contempt for liberal ideas?

Kennedy’s point isn’t that liberal ideas are unnecessary or irrelevant. It’s that whatever their merits may be, you haven’t got the right to force people to take classes on liberalism.

It’s true that freedom of movement across government borders is not a civil right. So what? Most of what the so-called “civil rights” movement was asking for were more than just civil rights, as well.

“As long as we’re running around here asking the white man for civil rights, we’re at his mercy. As long as we’re in Washington, D.C., asking him for civil rights, we’re at his mercy. The entire civil rights program has to be expanded: expanded from the level of civil rights to the level of human rights. … It’s true that it’s within the power of Uncle Sam to give or not give you and me civil rights. But human rights are something that you have when you’re born. Human rights involves the right to be a human being. … But there has been a conspiracy, to keep you and me barking up the civil rights tree, so that we wouldn’t be aware of the human rights tree.” – Malcolm X

Bithead: ‘When Jefferson wrote that “WE HOLD THESE TRUTHS TO BE SELF-EVIDENT” he was not speaking a universal truth at all. The operative word in that phrase is “WE”.’

Jefferson was not claiming that everybody held those truths to be self-evident. He was, however, claiming that in fact all men (without qualification) are created equal, and endowed by their Creator with certain inalienable rights, and that among these are life, liberty, and the pursuit of happiness. That includes Mexicans, incidentally.

If you want to make up a new position on which only people within certain cultures are created equal, you’re free to do so, but it is irresponsible of you to go around pretending that you are just explaining Jefferson’s views as expressed in the Declaration of Independence.

Bithead: “Morals, you see, are a group thing, and never individualistic in nature. They are, as a result, (yet again) set mostly by the culture. Wherein, if you re-read, you’ll find is the crux of my position on this matter.”

She didn’t say you were an agent-relativist. She just said that you’re a moral relativist. What you’re endorsing here is a straightforward form of cultural relativism, which is indeed one form of moral relativism (since it holds that the moral obligations you have are relative to the culture, and can vary from one culture to the next).

It’s not a very promising foundation for politics, either, since if it were true, it would mean that absolutely any form of tyranny whatsoever could be defended, and any crime justified, no matter how monstrous it is, as long as a commanding faction of the culture in which it is being committed approved of it.

Craig Bolton: “Further, it is questionable what such a right would involve if robust property rights were otherwise defined and enforced.”

Well, O.K., but this is true of just about any other right on the books, too. (What would a freedom of the press, or free exercise of religion, or the right to keep and bear arms, involve if robust property rights were otherwise defined and enforced? Well, pretty much nothing; but I can’t see how that’s an argument against appealing to freedom of the press, the free exercise of religion, or the right to keep and bear arms as principles in legal reasoning about rights.)

Barnett:

When the text is vague, appealing to the underlying principles to determine whether or not it covers a particular situation is appropriate and inevitable. But what is not kosher is to dive beneath the surface of the text to ferret out the “underlying principles” and then resurface somewhere else entirely.

Jonathan:

The original meaning of the text trumps and underlying principles are properly used only to supplement when the text is indeterminate in a specific case or controversy.

I’m not so sure that this is true. The role that you think “underlying principles” ought to play in legal reasoning is going to depend on the status that you take those principles to have. If the underlying principles are invoked only to do explanatory work — by offering some kind of plausible general understanding of the intent behind or meaning of several passages, some of them ambiguous — then it’s true that these kind of appeals are valuable only for expository purposes, have force only as far as explaining the actual passages you’re considering, and cannot issue in results that either contradict the text, or even add any novel provisions that aren’t already made explicit in the text. So if that’s all the appeal is doing, then you’re right that it doesn’t make sense to “resurface somewhere else entirely.”

But it’s not clear to me that this is the only status that the “underlying principles” discovered in the course of legal reasoning can have. They might not be explanatory; they might be justificatory. You might think about certain provisions of the law and find that there is a general principle behind them, not just in the sense that the people who wrote the law had the principle in mind (so the principle explains what they meant in writing it), but in the sense that it provides a justification for the provision, underwrites it, establishes the domain within which the law can legitimately claim authority (and also the limits of that domain). But if that’s what you’ve discovered, then you’ve discovered something that can provide a basis for completely novel provisions, and that even can overrule specific parts of the text. (If a general principle is what gives a provision of the law whatever legitimacy it has, then the provision is only binding where, and insofar, it lives up to that principle; where it fails to express, or conform to, the principle, it fails to have legitimate authority.)

Of course, I don’t doubt that originalists would be inclined to say that we should only be interested in general principles from an explanatory standpoint, not a justificatory one. But that raises the question of why we shouldn’t be interested in the justificatory principles behind provisions of the law. If there aren’t any such principles, why aren’t there? And if there are, why shouldn’t we concern ourselves with them when we do legal reasoning?

Jason:

When the Eighth Amendment declares that we must not employ cruel and unusual punishment, for instance, it is impossible to read this coherently unless it refers to the present day.

Well, this is a question about whether “cruel and unusual punishment” is being used as a rigid designator or a non-rigid designator. You could try to argue that it’s being used rigidly, so that “unusual punishment” continues to pick out those punishments unusual in 1787. It’s a reading compatible with the text; although I think it is a bad one for roughly the reasons you cite.

Probably so, although if there is reference to contemporary conditions, it would have to be the word “unusual” that’s doing that work, not “cruel.” There’s good reason to think that what is genuinely cruel in one age is genuinely cruel in any age. (Branding with hot irons was cruel in 1787 just as it is cruel today, although it was not unusual.) Actually, I think the phrasing is rather unfortunate, since it apparently allows for any legally approved punishment, no matter how monstrous, as long as it is consistently and commonly applied rather than being assigned capriciously or arbitrarily. But it shouldn’t; cruel punishment is, after all, worse rather than better when it’s systematic and unrelenting. (This is one of the few areas where the Universal Declaration of Human Rights does one better on the Bill of Rights: “No one shall be subjected to . . . inhuman or degrading treatment or punishment.”)

Jaime:

One can refuse, and no one ever said otherwise. There is an imposed condition that results from not agreeing, but no one has taken away your right to refuse the law.

The “imposed condition” being what, exactly?

If it’s something like what is done to undocumented immigrants today (arrest, confinement, and exile), then I should like to know by what right you think that you (or some third party) can impose this condition on me. You seem to want to treat this as if it were a matter of a contractual quid pro quo — I either agree or don’t agree to attend your class, and in return you agree to give me something that I want. But the peaceful enjoyment of my own life, liberty, and property are not goods in your possession that you can legitimately agree or decline to turn over to me. They are things that you owe me whenever and wherever we happen to interact (just as I owe you the same respect for your rights), prior to any agreements, contracts, covenants, or pledges we may or may not have made. I never agreed to take the class you propose forcing me to take, and I never agreed to accept anything from you that you made (or had any right to make) conditional on taking it. So what right would you have to make me take it, or to use any force against me as retribution for refusing to take it?

If it’s some other penalty that you have in mind, one not involving the use of force against my person or my property, then maybe you could clarify what you mean to do to people who refuse to attend the class.