Jason,

The short answer on “What’s all the fuss about?” is that two corporate coalitions are crashing into each other in the regulatory arena. Big Internet providers — the telcos and the cable companies mainly — want the ability to ration or charge extra for access to their bandwidth. Big Internet content companies, especially those such as Google, Yahoo, and Vonage, who are rolling out bandwidth-intensive products — want to be able to force the bandwidth providers to carry their services. Since they’re both pouring a lot of money into their P.R. fronts, and the “Net Neutrality” types can enlist the aid of a lot of the trade press, it’s resulted in a lot of noise over what’s really a pretty sordid tussle over just who gets to hold the captured agency.

Stephen,

Carriers could in theory cut all kinds of crazy deals with providers. What if Comcast cut a deal to replace half the normal channels with Animal Planet for a week? What if the USPS had Netflix and WalMart offer bids and did faster deliveries for all the DVDs from the higher bidder? What if UPS cut a deal with Amazon to deliver all their packages twice as fast as their competitors’? I don’t know, but there are pretty strong incentives not to engage in this kind of dickery. Of course, most carrier services that are able to, do have tiered cost structures for different levels of service (first-class/coach; Express/Priority/first-class/media/bulk, etc.). But the tiers are generally based on how much you’re willing to pay for the premium carriage, not who you are or where you’re coming from.

You’re right that we’re very far from a free market in the telecom industry, and that as a result broadband Internet is clutched in the fists of a corporate oligopoly. But since government-granted monopolies and FCC regulation are what created the oligopoly in the first place, it seems like the obvious solution is to stop protecting the monopolies and roll back the regulation, not to add more regulation in the attempt to calculate the “right” level of Internet service. If providers are damaging the network, the thing to do is to let entrepreneurs get in there and route around the damage.

As far as transparency goes, it’s pretty easy, actually, to find out where the problem is: just give a ring to a buddy of yours who doesn’t use the same ISP and see if she is having the same problem. If behind-the-scenes dickery becomes a common practice from ISPs, it would not be hard to create services that automate this process and aggregate the results, so that people can find out which providers are being dicks and which aren’t. If a noisy enough minority of customers make it clear that this kind of behavior is unacceptable then companies will, by and large, not do it, or will provide ways around it. If customers don’t care enough about it to do anything about it, well, it’s probably not much of a problem to begin with.

Tom,

If you’re taking this from the standpoint of concrete historical acts, then the abolition of slavery is a far more complex issue than the unilateral acts of any American politician, involving the actions of millions of people (including the slaves themselves, who often freed themselves by rebelling or leaving; this was nearly as large a military liability for the South throughout the Civil War as the Union army was).

If you’re taking this from the standpoint of legal ritual, the Emancipation Proclamation professed to free only slaves in some of the rebelling states, and as a matter of military necessity rather than as a legal abolition of slavery. Slavery was abolished by the Thirteenth Amendment, which was passed not by the unilateral action of the President, but rather by the Congress and the legislatures of the several states, and which was not ratified until well after Lincoln’s death.

Ed,

If learning the right lessons about history and political participation is so important, doesn’t that make it more important, not less, to keep the government out of it, given that the results of bad instruction are not just stupid, but in fact dangerous?

The worst that happens with government-taught chemistry classes is that students will learn something false from an incompetant teacher and will be disabused of the notion if they ever do the extra coursework required to do anything serious in the field of chemistry. But a government-taught civics class is an invitation for an admittedly duplicitous and power-hungry State to directly propagandize a captive audience. Not all teachers will allow it to be like that, but given the direct power that governments have over educational curricula and approved materials (I’ve read some currently popular civics textbooks, and it’s not pretty), and given the incentive that most teachers have to go along with the approved curriculum most of the time, I can’t say this sounds like a promising set-up.

As for the test, the non-meaningless questions include some where the expected answers are philosophically indefensible (cf. “Where does freedom of speech come from?” Expected answer: “The Bill of Rights;” apparently all naturalized citizens are now expected to be legal positivists) or historically false (“Which President freed the slaves?” Expected answer: “Abraham Lincoln”). These sorts of myths and platitudes don’t make me think that attempts to reform the test and similar exercises, by the government that crafted this rubbish in the first place, are going to turn out as anything other than mindless propaganda.

“Why did we have a civics curriculum in 1950 and no longer have one now?”

Because the governing party at the time felt that it served domestic propaganda interests during the Cold War.

Ed, if you think that politicians are willing to deliberately keep students ignorant in order to further their political aims, why in the world would you trust the government schools to teach people about history, the political system, the rights they should expect, how to exercise them, etc.? Do you go to used-car salesmen for consumer product testing, too?

P.S.: I notice that the sample citizenship test expects you to name the “Which President freed the slaves” (!) and that more than 10% of your grade on the test depends on your ability to recite meaningless trivia about theo-political rituals such as the flag (the first 7 questions of the test!) and the national anthem. I’m a little surprised to find no questions about the national bird, or the current state tree in your state of residence.

Jason,

Three things.

First, while you probably do have a right to use force to defend yourself against certain kinds of known criminals, even by forcing your way onto my property against my will in order to take her into custody, it’s quite another thing to claim that you have a right to force your way onto my property in order to do ex ante screening of everyone who passes through it, in order to find out whether they are criminals or not. But of course that’ latter is precisely what the border patrol and internal immigration cops need to do in order to enforce an immigration policy. Do you think that your right to self-defense extends to commandeering my property for ex-ante screening? If not, where will your immigration cops even find a place to stand?

Second, to confine criminals in prisons the burden is on the government to demonstrate guilt. As you note, domestic cops have no power to make you stop at checkpoints and do ex ante screening without probable cause. (Actually, they do get away with this on the roads, but that’s low-intensity occasional screening rather than systematic.)

But if your argument in favor of ex ante screening is that you have a right to keep criminals away from you, why doesn’t that give you an even stronger right to have the government do the same thing at state lines, or just randomly search other people’s houses whenever they feel like it? They have no less probable cause for people crossing state borders, than they do for people crossing international borders. And whatever microscopic contribution to your safety you think it makes to stop a criminal from moving from one city a thousand miles away from you to another city a thousand miles away from you, you surely make yourself more safe by stopping a criminal from moving into your state, city, or neighborhood.

It’s true that limiting checkpoints to the border crossings would be less inconvenient (since it means fewer checkpoints) than an extensive internal checkpoint system. But precisely because it’s less disruptive the actual meaningful contribution that it makes to anyone’s safety is correspondingly microscopic. As you remove the defeating condition, the supposedly justifying condition also evaporates.

Third, if the moral justification for confining and exiling immigrant criminals is the same as the moral justification for arresting and confining domestic criminals, why treat them differently at all? Why not throw both in prison, or exile both, rather than adopting different responses depending on the nationality of the person who’s allegedly posing a threat to your safety?

Thanks for your patience, by the way. I realize this is a pretty long pile-on and a lot of questions being fired your way over a disagreement that, from the standpoint of policy results, no doubt seems quite small when fully considered. (I’m just of the opinion that similarities or differences in moral principle are much more worth spending time on than similarities or differences in concrete policy outcomes.)

Jason: “I may also protect my legitimate interests through other means — as in prohibiting criminals from entering the country. It’s impossible, after all, to protect your land day and night while still making a living, and the task of the government is likewise made easier if criminals are screened out at the border. … The only groups I have advocated deporting are criminals and terrorists. These people have no right to be here, because criminals have fewer rights than the rest of us.”

1. Do you think that the government would be within its moral prerogatives to use similar “screening” procedures to keep criminals, terrorists, etc. from moving from, say, Ohio to Michigan? From Detroit to Ann Arbor? After all, insofar as it succeeded, that would materially improve my safety a lot more than stopping criminals from moving from Tijuana to San Diego.

2. There are two different aspects to immigration policy: border patrol and internal policing. Suppose that someone who is not, in fact, a criminal, a terrorist, the bearer of a dangerous disease, or anything of the sort, doesn’t want to deal with immigration paperwork and somehow skirts your border patrol. Suppose that she stays at my place while she works for a willing employer who doesn’t care about her immigration status. Should she be arrested and deported if she is found out? Should I be forced to do “screening” for her immigration status before I give her a place to stay? Should her employer be forced to do the same?

3. What kind of crimes do you have in mind when you say that “criminals” should be stopped at the border and/or exiled from the country? Do you think that U.S. citizens who commit similar crimes should also be exiled, or prevented from re-entering the country if they leave it? If not, what makes the difference between the two cases?

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.

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.

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.”)