Law in Contemporary Society

Paper Title

-- By JoshuaHochman - 26 Feb 2010

I don't have an exact quote to start with, but Eben said something early in the semester that I felt provided a good undercurrent for wherever I go with my first paper, as well as for my budding identity as a law school student, lawyer, and adult. There are people smarter than me, more deserving of my seat in his classroom. There are people on other continents that, given the circumstances I was given, would do a better job on this paper, on my piss-poor moot court brief, on last semester's civil procedure exam...

My assertion here is that a misplaced sense of entitlement resulting from an assumed national identity plagues contemporary society by confusing responsibilities to our fellow man. My paper will utilize, for the sake of example, the context of immigration law enforcement in the United States.

But the example wrenches the idea out of its context. I didn't say that everyone who is smarter than you are lives outside the boundaries of the United States, or is a non-citizen. Yet once you've taken the step you take here, national identity and the State's power over its borders suddenly become important elements in the analysis, though they have nothing directly to do with the subject.

I ended up in an immigration discussion because of an unrelated discussion I had been having outside of class. I wanted to focus on unequal barriers, which is where I have found that the borders/immigration example applicable(but certainly not all-encompassing). For gifted individuals born abroad, 'national identity' and a 'State's power over its borders' create or reinforce these barriers, do they not? Basically, I am just trying to set up the perspective that 'national identity' or rather, aspects of how it is instilled in youths, fosters an unpleasant/unproductive sense of entitlement.

Section I - The Insincerity of Identity and the Law

Genetics and religion aside, I don't believe a rational explanation exists for why I'm here and someone else with a higher I.Q. and more focus is farming or fighting or dying a world away.

I don't understand this sentence. Are genetics and religion rational explanations, and there are no others? Are genetics and religion explanations at all? Do you mean genetics explains where you are because you are the genetic descendant of someone else who provided heritable advantages? What does religion explain? That God wanted you instead of some other people to have your advantages?

No, no no, definitely not. They are far from rational (in my opinion) but they aren't arguments that I had word count space to refute. They just seem to be ever-present in these sort of discussions, or wherever nativism rears its head

What I do believe, however, is that the 'American identity,' the one linked to my rights, residence, and quadrennial hockey interest, is secondary to my identity as a man who wants to live righteously.

Subsection A - The Border

Immigrants seeking entry to the U.S. are often perceived as different because of where they were born--on the other side of the border.

But some citizens are born on the other side of the border, and grow up there. Are they then "different" in the same way that immigrants are different? If so, then the test of difference between immigrants and citizens won't work very well; while, if not, the whole idea of the difference collapses back into white supremacy.

I added "seeking entry" to reflect a disparity that may have been unclear. From the perspective of those arguing for borders/barriers/stronger controls, "difference" may mean something that resembles "white supremacy" (in the form of this "american entitlement"). At this point in my argument, all I meant was to say in the simplest, most far-removed and broadest sense, that people who seek admittance to the U.S. and cannot secure it (so this would exclude U.S. citizens living abroad)were born on the other side of the border.

Border’s originate from natural land formations, wars, conquests and/or agreements whereby two or more groups of people decide that they are different in some unresolvable respect, and they therefore they should live apart.

Surely you're historically literate enough to recognize that no one ever asks the people who live along the borders, and that they play no significant role in any sovereign's choice?

This is a fair point, but describing the theories and historical considerations of border-drawing could fill several 1,000 word papers. For the sake of just introducing the concept of borders (and the social/cultural sentiments that people derive from them), is this generalization unfair? Granted, those living at the border at the time it is being drawn have little or no say, but if no conflict follows, then can their assent (or a presumption that they have no actionable problem with being among the same group as the "sovereign') be assumed?

Subsub 1 - Historical Relevance

Borders endure as long as they are respected. Do ancient military accords really matter when nobody remembers the conditions under which they were signed in the first place? Even in situations where border-creation is well documented, the wars of past generations may not seem as pressing as contemporary struggles across the world.

Excuse me? That depends who you are and how you are situated with respect to "contemporary struggles across the world." That's not how Partition is viewed between India and Pakistan, or the events of 1947, 1956, 1967, 1973, etc. are seen in the arc from Damascus to Cairo. It might be more accurate to say that the wars of past generations are more pressing than contemporary events.

As it reads, this paragraph is an unfair generalization. I will re-write it to fix this.

Subsub 2 - Practical Relevance

The practical relevance of the border is that it's a protective mechanism. Without going into the intricacies of political philosophy, a government is (assumed to be) charged with protecting the welfare of its citizenry. Limiting the size of the citizenry makes it easier for a government to fulfill its responsibilities to its people.

This is impractical, whether relevant or not. Until the day before yesterday, no state in the world thought that governments should inhibit population growth. Even the infinitesimal proportion of governments concerned with fulfilling their responsibilities didn't do so by limiting the size of the army. The United States, in particular, has been a beneficiary of constant demographic expansion.

What about the One-child policies in China? Limiting the size of the infantry in the past is a tough analogy to draw today because of the technological advances to warfare (making manpower somewhat less important when compared to bombs) as well as the decreased frequency of warfare between the world's largest economies. I understand that this is a rough generalization, but my original point (about governments' responsibilities to protect citizens) had to do with protecting rights and privileges that are sought by outsiders. Practically speaking, the more people laying claim to a particular right/social service/political privilege, the harder it becomes for a state to defend it. On a final note, I certainly agree that the U.S. has benefited from constant demographic expansion, but this too depends on 'who you are and how you are situated.' Plenty of Americans throughout history (and now) would disagree, and their reasoning usually disintegrates into the same nativist points that under lie your questions above (about using religion or genetics/white supremacy as an explanation.

Subsection B - The Human Element

The practical relevance of borders is often manipulated, but it appears to me to be the strongest of border defense arguments.

(obviously stronger than genetics/God, and I would also think that it provides a stronger defense than the historical arguments laid out above, but I may have to reconsider this).

However, I do not feel it is impervious to challenge. Specifically, a construction of governmental responsibility that prioritizes humanity in general, rather than individual citizenries, would provide a challenge to border mechanics that, while incredibly idealistic, makes much more sense when considering the flawed reasoning that underlies these defenses.

Subsub 1 - Borders are Irrelevant in the Human Element

Assuming that I am not incorrect in concluding that no explanation exists for my life-force materializing on this side of the border, then it follows that I could just as easily have been born on that side. My entitlement to American rights and the protections of the American government is therefore the result of randomness.

Protecting individual rights is important, but a forward-thinking government needs to take into consideration a broader amalgamation of environmental, public health, scientific, and technological concerns to make sure life on earth endures and people have a place to exercise their rights. Although it seems obvious to us, the actions of one may affect the rest of the world. When considering resource management and environmental destruction, it appears to be more ideal for one body to govern as many individuals as possible.

Your "of" is supposed to be "to," I suppose. But this is merely the same basic political mistake again: that only the centralization of authority enables sustainable decision-making. This isn't established, it's just uncritically supposed.

I'm not 100% sure I understand this point. My intention here was to provide support for the idea that narrowly-constructed governmental aims (e.g. to protect the 'citizenry') that are largely associated with border politics can be short-sighted when it comes to matters where global governance is important (like resource management, pollution, etc.).

Section II - A Misguided Focus Within U.S. Immigration Law

I am aware that, for some, the above points may be difficult or impossible to see as a realistic approach for governments to take. Too much judgment is clouded by a history of entitlement—derived from religion, race, socioeconomic class, etc.—to garner support for such a broad approach, and of course, all governmental platforms are inherently flawed and self-serving because of the (presumably) flawed and self-serving individuals that run them. These extremes do not reflect my exact beliefs, but I do see their logic. Regardless, shifting the focus of immigration enforcement away from border-protection would help resolve several problems with the current U.S. immigration framework.

I don't know why judgment clouded by history of entitlement can't go anywhere productive; my experience is that clouded judgment can be found just about everywhere, so either it is produced comprehensively in situ or it can move just fine. I thought the point of the rule of law was that it made government platforms less flawed and self-serving than the individuals that run them (isn't this "the government of laws and not of men"?)

In discussing the 'clouded judgment' I specifically meant reasoning drawn from the same misguided tenets/defenses discussed in the earlier parts of the paper (genetics, God, etc.). While I agree that these viewpoints can be found just about everywhere, my phrasing was unclear- I only meant that they prevent movement towards the broader focus for which I advocate... The second-part about this (self-serving governments) is the other, perhaps equally convoluted perspective, that a government undertaking a larger responsibility (e.g., a supra-national governmental body overseeing North America for matters of immigration, environmental protection, and human rights) would only become more corrupt and self-serving, thereby defeating the purpose of broadening its scope.

Subsection A - Workplace Enforcement is a Flawed Approach

In 1986, Congress enacted the most recent comprehensive immigration law, the Immigration Reform and Control Act (IRCA). With IRCA, it became the official policy of the federal government to enlist U.S. employers to enforce immigration law by verifying worker identity and eligibility at the point of hire. The logic underlying workplace enforcement is that, since a major motivator for migrants in coming to America is the prospect of a more favorable employment situation, that eliminating work opportunities would thus decrease the flow of migrants.

No. No sane government actually attempts to eliminate tax payers. The logic underlying workplace enforcement is the unproven conviction that immigrants without working papers displace citizen workers, and the entirely obvious proposition that increasing the supply of labor drives down the wages of unskilled and semi-skilled workers.

Perhaps this is why the policy is so obviously flawed. Perhaps facially the logic is as I have laid it out above, while the underlying reasoning for the laws is concerned with the displacement of American workers and the protection of wages. As it stands, the U.S. government gets a pretty sweet tax credit from workers using fraudulent documents, but this benefit wouldn't interfere with processing a large scale bust. Whether the policies are crafted in such a way (leaving the employers to enforcement, with no real incentives and questionable penalization) so as to maintain just enough legitimacy to assuage concerns over the "unproven conviction" you discussed above is a question that makes the logic I described inherently suspect.

Regardless, the arguments you brought up fuel immigration debates, but do little to explain why, specifically, the workplace was chosen as an enforcement arena. This concept is what I sought to explain.

Subsub 1 - The Prevailing Tradition

Workplace history has generally witnessed employers taking advantage of workers. The balance of power traditionally tips in favor of employers, with workers fighting for collective bargaining and occupational safety rights following patterned abuses. Even after these regulations come to passage, the law shifts to a push-pull of fitting individuals into different categories (employee, independent contractor, manager, etc.) in order to deprive workers of certain privileges. This dynamic is preserved when an employer hires a migrant worker. Making it more difficult to find work once the trip has been made forces migrant workers to accept more oppressive, illicit jobs.

Why not just say that employers like vulnerable workers who are easy to underpay and exploit because they are afraid of government and law enforcement authorities?
This is basically a perfect summation of my point here, but I also wanted to incorporate (1) that these practices are historically patterned, and (2)the implication that employers maneuver around laws within legal categorizations to subvert the supposed objectives of these laws. This is all intended to shed doubt on the concept of workplace immigration enforcement as it is presently carried out (workers and employers both transact to create something 'illegal' but the parties are placed in a very different position by the law).

Subsub 2 - Conflicting Authority and Identity Fraud

Furthermore, IRCA’s approach has given rise in recent years to an influx of state and municipal ordinances whereby local legislators have undertaken immigration enforcement initiatives under the guise of employment regulations. Besides presenting preemption questions for courts, an inconsistent web of local immigration policies further marginalizes those individuals in the toughest situations (as well as creating a confusing enforcement protocol for employers). Additionally, IRCA created a market for fraudulent identity documentation.

Now there's a make-weight argument if ever I heard one. So? Raising the legal drinking age to 21 does the same thing. And?

This got cut for the word limit, but what I meant by including the identity fraud (to which I'm assuming your comment is directed) is that it's an additional criminal offense that further complicates and distorts the relationship between undocumented workers and the parties hiring them. Obtaining fraudulent documentation burdens workers and benefits employers. Besides the obvious financial burden, fraudulent documentation attaches a criminal (deport-able) offense, while providing employers with a higher degree of 'good-faith' deniability.

If your comment was directed at the other argument (against sub-federal immigration enforcement), I can respond to this in more detail. The recent Arizona law has since provided a strong example of how problematic local immigration enforcement initiatives can become.

Subsection B - Shifting the Focus

One fundamental reason why workplace enforcement doesn’t work is because it relies on identification of individual parties—a task that is exceedingly difficult from the federal or even state level. Workplace identification as a step towards deportation is less helpful to everyone than integrative programming in the vein of hiring centers, temporary work visa programs, medical clinics, etc.

The latter measures are only comparable if you don't want to put "illegal" immigrants out of the country. To such people, deportation is helpful, and every step towards deportation is therefore helpful too, while all the "midnight basketball" in the world is unhelpful because it leaves the "illegal" immigrants here. If you want to contest that point of view you must meet it directly, and if you don't want to contest that point of view you can't pretend to be persuading anybody.

I have incorporated my response to this comment into my last comment.

Subsub 1 - Misreading Integrative Measures

An extremely common argument against integrative measures is that tax dollars are not charity for non-taxpaying citizens. However, are these dollars better spent striving to accommodate, understand, and manage a population that is already here or on the endless cycle of arrest, detain, and deport. It seems to me that the former is a much more productive use of public attention than the latter.

It seems to me the essay has two basic problems: if it is about immigration law it should not begin with a point tangent to its outer curves, and it should not be presenting an argument against individual enforcement without a clear answer for those who believe that people "jumping the line" should be excluded. If, on the other hand, immigration law is an "example" only, as the second paragraph states, the discussion is at once too technical and too inconclusive to establish any proposition that could be played back into your original enclosing argument.

I would think that my problem rests within the second conditional described above. I started my paper with an idea: that a misplaced sense of entitlement resulting from an assumed national identity fuels this sort of damaging border politics (sought to appease the people who want to banish the "illegals" and grow with their support). The idea came from how I interpreted (or perhaps, misinterpreted) the quote referenced above. In the outline stage, I developed this approach (second problem: employer sanctions immigration law as an "example" of how enforcement focusing on individual-identification, worker status, and deportation is flawed despite being crafted to accommodate the perspective outlined in Part I).

I have attempted to provide some clarification in my green comments, but some of these problems still persist. For example, I intended for my discussion of and (general) disagreement with the defenses for border policing (e.g. religion, race, practical relevance, history) to serve as a confrontation of people who blindly want "illegals" out, thereby serving as an adequate backdrop for me to declare that integrative measures, or "midnight basketball" would be a more productive means of immigration management than workplace enforcement. I will attempt to re-write these parts after a bit more thinking.

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r9 - 13 Jan 2012 - 23:14:18 - IanSullivan
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