Corruption of Blood and In-State Tuition

Colorado recently extended in-state tuition eligibility to certain unauthorized immigrants. This was a good move. Unauthorized immigrants who came to the United States when they were children, and subsequently graduated from a State high school, should be treated the same as resident citizens who likewise grew up in a state and graduated from a state high school.

One opponent of Colorado's move said that because unauthorized immigrants pay very little in taxes, their children should not be given the same opportunities as US children. He is correct that unauthorized immigrants do not pay as much taxes as US citizens, on average. Unauthorized immigrants pay less taxes, because they tend to be very poor in comparison to US citizens. However. the fact that someone is poor (and therefore pays less taxes) is not a good reason to treat them differently under the law in education.

First, it is worth stating that unauthorized immigrants do pay some taxes. Unauthorized immigrants do make some (though not a lot of) money, and they pay taxes with that money (sales taxes, income taxes, and in many cases property taxes). Some people mistakenly believe that immigrants do not pay income taxes, but the evidence that is available suggests that the vast majority do pay income taxes, because they are working using false information--other peoples' IDs and social security numbers. Yet they do not get the same benefits for paying taxes. Despite paying taxes, unauthorized immigrants do not have access to the vast majority of public benefits. Unauthorized immigrants are NOT entitled to any benefits besides public education and emergency medical care. This means that many unauthorized immigrants are actually paying more in taxes than the receive in benefits.

Second,the fact that a child's parents are are poor (and can't pay very much in taxes) is not a good reason to require them to pay more for a public education, because this is inimical to the idea of equal opportunity. In order for the US to be a country of equality and opportunity it is critical that all people be able to compete on an even playing field. Therefore, it is essential that all children be afforded an opportunity to get a quality education.

Third, excluding the children of unauthorized immigrants from US schools will create a permanent underclass in the United States. If these children are treated differently at public schools, they will be much less likely to gain a complete education and become productive members of society. If the goal is to collect taxes from immigrants, than educating the next generation is critical. If these children never receive a good education, they will continue to be a burden to the US. Without an education they will be forced to rely on the same low-paying jobs as their parents, and will likely be forced into a system of low-paid seasonal labor that currently fuels unauthorized immigration in the US. Thus, treating these children differently contributes to the perpetuation of the status quo--a permanent underclass of cheap labor. Because discriminatory laws in education perpetuate a permanent underclass of exploitable labor, such education laws have the same effect as discriminatory education laws in the Jim Crow South. Because immigrants pay less taxes because they are poor, and because treating people differently because they are poor can create a permanent underclass that offends notions of equal opportunity, it is good policy to treat children of unauthorized immigrants the same as the children of U.S. citizens in education.

An opponent of the Colorado policy stated that "there are many US citizens that already struggle to pay for their own children's schooling, many of whom are qualified to receive grants but are not awarded such grants because they are not a protected minority under affirmative action laws." Unauthorized immigrants do not qualify for federal grants. Because unauthorized immigrants do not qualify for federal grants, US citizens are not competing with these children for grants. So no one need worry about unauthorized immigrant children competing with US citizens for federal grants.

Finally, my opponent stated that he believed it was unfair to reward unauthorized immigrants by providing education to their children. He said, "[h]ow is it equal or fair for US citizens to bear the burden of raising and educating the children of individuals who have no respect for US laws?" I believe I've already answered this question somewhat, but I would also point out that my opponent is here are shifting the analysis from the children to the parents. A good argument can be made that such parents should not be given public benefits, because doing so encourages unauthorized migration (and in fact such parents do NOT receive public benefits for this very reason). However, the children of unauthorized children did nothing to warrant punishment. Many of them were brought to the United States when they were infants. One of these children may have parents that are Mexican, but for them Mexico is a distant place to which they have no connection. They are American. It is not fair for the law to treat such children differently just because their parents made a bad choice.

Our founders agreed that people should not be punished for the crimes of their parents. In England there were legal punishments that attached to the children of wrongdoers based on "corruption of blood." Our founders explicitly rejected such laws and wrote in our Constitution that there shall be no such "bills of attainder." Again, it is not equal or fair to treat someone differently because their parents made a mistake.

We are a nation of immigrants descended from colonists who invaded the US and took it from its native inhabitants. Because we are also the descendants of illegal immigrants, we have no claim to preferential treatment over an immigrant who came her as a child and is now seeking to better herself through education. We are a nation of immigrants. If anything justifies our past, it is our progress in realizing equal opportunity under the law. Therefore, Colorado's choice to extend in-state tuition to the children of unauthorized immigrants is good policy.

Confession--I do not have perfect faith in "Free Markets" (Blasphemy?)

My buddy Mike wrote a great post comparing Free Market ideology to Christian ideology (ultimately making a convincing argument that Free Market Conservatism is a form of idolatry).  I liked his analogy so much that I wanted to make a contribution.  Please read Mike's blog post first, so that you understand the context.

The left, at its best, does not claim access to Truth.  “There is no big Other,” as Lacan said.  Instead, the left-at-its-best only points out that which is not Truth (which is essentially everything). The left-at-its-best tears down ideology; while, conservatism, at its purist is an attempt to maintain the dominant order—an order built on ideology.  The left tears down (the critique), and the right builds-up and reinforces (the apology).   (Perhaps I’m not perfectly capturing the right-left dynamic, but I think it fits this discussion of this particular political divide quite well.)

Mike used the acronym TFM for The Free Market, “because acronyms are sexy,” so I’m going to adopt his terminology.

The central difference between conservative and leftist economics right now, is that conservatism has faith in TFM (the God of the Market); whereas, the left has doubts.  And there is good reason to doubt TFM.  Because TFM has never and will never exist.  It is a utopia, a construct, a dream.  Like mercury, it combusts as soon as it is taken out into the air.  This is because if ever there is a single government involvement in the market, the tiniest “distortion” and the market is no longer TFM.  This is useful to conservative ideology.  When markets fail--and they have a tendency to collapse spectacularly--Conservatism can always shield its faith in TFM by blaming government.  The market never fails because of TFM; if the market fails it is because TFM was driven away by the unholy presence of government.  If TFM is the Holy Spirit, then “government” is Satan’s presence on Earth.  

So for conservatives in 2008, it was not the derivatives market that failed, instead it was government intervention in the housing markets that caused the biggest credit crunch since the Great Depression.   (Never mind that the derivatives market was the primary driver of the housing bubble, and never mind that the derivatives market was expressly exempted from regulation by the CFMA).  When the God of the Market fails them, conservatives see it as a test of their faith in TFM’s principles.

There is another factor complicating my analogy, however, because anyone who has read Coase should also know that the markets rely on governments to provide a basic structure—rules that allow a market to function.  Without police, “property rights” become empty.  Mob rule, and violence can take the place of voluntary market transactions if there is not a strong regulatory structure.  As a result, without government, the market devolves into a Hobbesian state of nature.  Government is a necessary condition for efficient markets.

“Government,” TFM says, “can’t live with it; can’t live without it.”  This puts us humans in a double-bind--no intervention, and the market falls apart; some intervention (such as subsidizing the rich by paying for the enforcement of their property rights) and suddenly there are distortions that get rid of perfect TFM.  We can't win.

Perhaps, the reason we never seem to be worthy of TFM is because we live in a carnal and fallen state.  Our only hope, is to give ourselves entirely to TFM, devote our lives to it, and hope that TFM will make-up the difference.  Hence, Free-Market conservatism is idolatry. 

Critique of Equivalence Theory of U.S. Partisanship

So, I am an open partisan. I'm a lefty, so I cannot be certain that my perspective is fair.

That said, the false equivalence drawn between Republican partisanship and Democratic partisanship is annoying.

I offer three examples to illustrate my point: 2 of Republican intransigence, and 1 of Democratic willingness to deal.

First, Republicans were in favor of Health Care Reform before they were against it. The individual mandate was originally developed by Republicans. Bob Bennet, with possibly the most conservative voting record in the Senate, proposed the Healthy Americans Act, which was substantially the same as the PPAC. So it was really weird when Repubs unanimously opposed Obama's plan, because they supported it before. Obama and the Dems responded graciously to Republican animosity by giving tons of concessions on their Health Care Plan. This bipartisan gesture to the Repubs was ignored. When the PPACA comes up to a vote, only one Repub (in the entire Congress) breaks ranks to vote for the plan that they originally proposed.

Second, in a gesture of political hostility and brinkmanship, the Republicans, as a unified whole, refuse to raise the debt ceiling. This almost brings the nations finances crashing to a halt. Dems finally cave, so as to not plunge the nation into economic crisis, and sign some fairly ugly spending cuts into law. As a result of this stupid gesture of intransigence on the part of Repubs, the rating agency Standard & Poors downgrades the U.S. credit rating, for the first time in history, citing "political brinkmanship" as the problem. Repubs are willing to hold the nation hostage to get what they want. Dems have not yet resorted to such extreme, coercive methods.

Third, despite the hostility and unwillingness to play fair on the part of Repubs, Dems are still willing to help the "Just Say No Republicans" pass legislation for the good of the country. Recently, Obama and the Dems got behind a Republican proposal to make it easier for small businesses to obtain financing and investment. Dems are still willing to listen to Republican ideas.

Finally, political scientists can actually chart the Republicans swift shift to the hard right. This same study shows that Dems haven't moved very much, or at least their not doing so at a rate nearly as fast as Republicans. Therefore, the empirical evidence suggests that the gridlock in Congress is a Republican shift, not a Democratic one.

I know there are some ideologues among the Dems too. But as a rule, the Dems have demonstrated more willingness to listen and compromise than have the Repubs.

The problem with Normativity

The problem with normativity is that "the ideal is always threatening to collapse into the real" (Pierre Schlag). Essentially, the danger is that what we should do, will simply become that which we already do. At that point there is nowhere else to go. Critical reflection ceases. Normative evaluation ceases to be fruitful because all it does is tell us to do what we’re already doing. What’s the point of that?

For this reason, a critical stance is preferable to a normative stance.

I am the Law: Critical Pragmatism

The Law is something. We all seem to agree on that. But none of us seem to agree on what it is. In fact in order to define the Law, a person must resort to some theory about law, which the Law itself cannot provide. This lack, this inability of the law to tell us what it is, makes the law seem somewhat like a void. Different people fill this void with different meanings. Therefore, the meaning of the law, is aporiatic. It exists, but at the same time does not, because it can only be determined by reference to some outside theory. It has no independent existence as existence.

Now, my feeling in the past was that the utter indeterminacy of law made it somewhat of a non-entity, without any kind of existence. However, even phenomenologically, the law seems to persist. Within our minds we struggle against the Law, perhaps as a way to resist the gaze of a popular paradigm, or else to protect what we perceive the popular view of the Law to be from a minority view. (Critical Phenomenology of Judging, Duncan Kennedy, p. 53).

Therefore, the Law does have some kind of existence, even if it is a contingent existence. It occurs to me now that a critical approach does not deny the existence of the Law; Rather, I accept that the Law's has several beings, with no apparent way to rank which theory controls. Because, for instance, the standards by which a textualist would judge an ontology of the Law are are incommensurate with the standards which a pragmatist would use to judge the same interprative paradigm. Because there is no intervening, superseding Master standard which can authoritatively say what the Law is, we are left with many equally suitable definitions for what the law is. As a result, the ontology of the law is dependent on what legal theory one accepts.

From here it is clear that a critical approach gives up on the impossible game of saying which theory is best, because there is no objective plane from which to view the multiplicity of theories. A critical approach is a pluralistic approach which accepts as given every theory of what the law is, especially contradicting theories. Then, going from there one must weigh options, make arguments, and render decisions. A pluralistic approach is ultimately a pragmatic approach, but also one that accepts the limits of discourse, and as such recognizes that at the bottom of each decision is an act of pure will; therefore, whatever binds in the law is internal to the subject (i.e. the gaze, desire for certainty, fear of censure, etc.): The subject cannot be detached from the unit of analysis.

I am the Law. But the Law is not free.

First Semester Law School Stifles Critical Thinking

I thought law school would be creatively challenging. Instead, I have never experienced anything as stifling of critical thinking as the first semester of law school. Is my experience unique, or do other people feel this way? I had professors who really believed that the law had a correct answer for every question. There was no room for indeterminacy in their minds, and questioning or interrogating legal rules was discouraged. Were they really that naive, or do time constraints train legal teachers to treat doctrine as though it is solid and indisputable.

This semester is coming along much better. Pierre Schlag and Ahmed White are much more interested in delving into the aporiatic sea that is the law and taking a look about. As such, my classes are much more enjoyable, but I feel like my mind has been handicapped by last semester's teachers and I'm having a little trouble keeping up with Schlag and White.

Constitutional Law SEX

Part of the reason I originally applied at CU Law was because I am enamored with Pierre Schlag whose writings I find to be quite titillating. I've written about some of his ideas on this blog before. And today I got to meet Schlag.

Today I had my first class with Pierre Schlag. He was on sabbatical in Europe for my first semester, and so very few of my senior classmates knew much about him, which as a fan seemed to further enhance his mystique. Despite my heightened expectations, he did not disappoint. He dresses a little rockstaresque in a blazer and jeans with a tuft of chest hair sticking out of his low-buttoned shirt. He has a mullet. And he speaks with subtle accent which adds to his gravitas without distracting from what he says.

He was quite theatrical and moved about the classroom like he had a nervous tick. Half-way into the lecture he excitedly gushed "Constitutional law is about SEX," rousing several people from slumber he then continued less loudly, "and race, allocation of power between states and the Federal government, and of power between the branches."

Schlag tries to make constitutional law as sexy as possible, but I'm afraid no one will ever get hot thinking about this subject.