Big Jolly Politics

politics in Harris County and Texas

The Journey Ahead II

by

Ed Hubbard

The closeness of this last election, and the divisions among us that it revealed over the course of many months, proves something we all have known instinctively for a long time now:  we live in dangerous and immoderate times, and we have been caught up in an enlarging cycle of immoderation, at home and abroad, for most of the last two decades since the fall of the Soviet Union and the end of the first Gulf War.  We have learned to our chagrin, and at great human cost, that we can not cure the immoderation of our enemies, and we may, indeed, be facing a continuing long fight abroad whether we want it or not.  But we can, and must, overcome our immoderation at home.  We must remember, as Shakespeare noted, “[i]t is not in the stars to hold our destiny, but in ourselves.”

Let me be clear:  being partisan in a democratic society is not the same as being immoderate—and in confusing these concepts, I believe one of my heroes, Barry Goldwater, did a great disservice to conservatives and conservatism.  Representative government works best when competing ideas about the principles and specifics of public policy are debated and tested vigorously.  But, at some point, debate must lead to compromise and consensus over the specifics of public policy (without compromising principles), or else debate devolves into mere noise and stalemate.  Moreover, endless, partisan argument over issues that government has little or no ability to resolve, or has no business being involved in, creates needless discord that impairs our ability to find consensus on those matters that government can handle.  It is not that such issues should not be debated, but continually injecting such issues into debates over governmental policy distracts our attention away from those issues that are properly within the government’s scope of responsibility, and eventually stretches the reach of government into matters that it is incompetent to resolve.

Unfortunately, the cumulative noise created by endless arguments over the last few decades has become a nuisance to good government—and both sides of our politics are equally guilty for creating this situation.  Our immoderation has evolved from our unwillingness to acknowledge those vast areas of public policy goals with which we agree, and then, to listen to, and frankly debate those issues on which we actually disagree.  At the most basic level, regardless of religion or politics, virtually all Americans agree that individually, and as a community, our most important aspiration is to care for each human being as we would care for ourselves, and we want our government to reflect that goal in its policy choices.  Virtually all of us agree that we want a secure and peaceful relationship among nations, and we share an aspiration that the blessings of liberty, and of individual participation in the political determination of nations, be a right of all people.  Even on a specific domestic issue like energy independence, we agree on so much of what needs to be done even though we come to our positions from different perspectives as to the cause and effect of the problem.  Why, then, has it been so hard for us to acknowledge these agreements and arrive at a consensus as to how to write them into public policy?

When you strip away all of the demographic and educational variables that exacerbate our divisions, I think our differences are grounded in two fundamental sources:  our different view on the proper sphere of responsibility of each level of government and the proper allocation of responsibility between the public and private institutions in our country at every level from the neighborhood to the nation; and our different view on the meaning and role of morality in the shaping of individual behavior and public policy.

The basis of our differences over the responsibilities and roles of government are pretty well understood, even if they are mischaracterized in the media and by partisan spin.  But I have come to the conclusion that we stopped listening to each other over moral issues a long time ago, and so a whole generation has grown up without understanding the different perspectives that have created the great divide in this country—or without fully understanding the basis for their own perpsective.  If we are ever to bridge this divide, we must first understand it—not just demagogue it, but understand it.

So, the rest of this post is intended to offer insight into the nature of our differences on the second issue from an admittedly conservative perspective.  But, rather than argue over who is right or who is wrong, I am just going to lay out the conservative perspective.  To do that, I am not going to re-invent the wheel, but instead, I am going to provide you with C.S. Lewis’ description of the role of Morality in our society, from his book Mere Christianity:

God cannot give us a happiness and peace apart from Himself, because it is not there. There is no such thing. That is the key to history. Terrific energy is expended–civilizations are built up–excellent institutions devised; but each time something goes wrong. Some fatal flaw always brings the selfish and cruel people to the top and it all slides back into misery and ruin. In fact, the machine conks. It seems to start up all right and runs a few yards, and then it breaks down. They are trying to run it on the wrong juice.

… I am afraid that … the word Morality raises in a good many people’s minds:  something that interferes, something that stops you having a good time.  In reality, moral rules are directions for running the human machine.  Every moral rule is there to prevent a breakdown, or a strain, or a friction, in the running of the machine.  That is why these rules at first seem to be constantly interfering with our natural inclinations.  When you are being taught how to use any machine, the instructor keeps on saying, ‘No, don’t do it like that,’ because, of course, there are all sorts of things that look all right and seem to you the natural way of treating the machine, but do not really work.  …

… Perfect behavior may be as unattainable as perfect gear-changing when we drive; but it is a necessary ideal prescribed for all men by the very nature of the human machine just as perfect gear-changing is an ideal prescribed for all drivers by the very nature of cars.  …

… There are two ways in which the human machine goes wrong.  One is when human individuals drift apart from one another, or else collide with one another and do one another damage by cheating or bullying.  The other is when things go wrong inside the individual—when the different parts of him (his different faculties and desires and so on) either drift apart or interfere with one another.  …

… Morality, then, seems to be concerned with three things.  Firstly, with fair play and harmony between individuals.  Secondly, with what might be called tidying up or harmonizing the things inside each individual.  Thirdly, with the general purpose of human life as a whole:  what man was made for:  what course the whole fleet ought to be on:  what tune the conductor of the band wants to play.  …

… You may have noticed that modern people are nearly always thinking about the first thing and forgetting the other two.  When people say in the newspapers that we are striving for Christian moral standards, they usually mean that we are striving for kindness and fair play between nations, and classes, and individuals; that is they are thinking only of the first thing.  When a man says about something he wants to do, ‘It can’t be wrong because it doesn’t do anyone else any harm,’ he is thinking only of the first thing.  … And it is quite natural, when we start thinking about morality to begin with the first thing, social relations.  …But though it is natural to begin with all that, if our thinking about morality stops there, we might just as well not have thought at all.  Unless we go on to the second thing—the tidying up inside each human being—we are only deceiving ourselves.  …

… I don not mean for a moment that we ought not to think, and think hard, about improvements in our social and economic system.  What I do mean is that all that thinking will be mere moonshine unless we realize that nothing but the courage and unselfishness of individuals is ever going to make any system work properly.  … You cannot make men good by law:  and without good men you cannot have a good society.  That is why we must go on to think of the second thing:  of morality inside the individual.

But I do not think we can stop there either.  We are now getting to the point at which different beliefs about the universe lead to different behaviour.  …

Again, Christianity asserts that every individual human being is going to live for ever, and this must be either true or false.  … If individuals live only seventy years, then a state, or a nation, or a civilization, which may last for a thousand years, is more important than an individual.  But if Christianity is true, then the individual is not only more important but incomparably more important, for he is everlasting and the life of a state or a civilization, compared with his, is only a moment.

It seem, then, that if we are to think about morality, we must think of all three departments:  relations between man and man:  things inside each man: and relations between man and the power that made him.  We can all co-operate in the first one.  Disagreements begin with the second and become more serious with the third.  It is dealing with the third that the main difference between Christian and non-Christian morality come out.

And, it is dealing with our different perspectives about the second and third aspects of Morality, as well as about the extent to which government at each level ( or at any level) should be involved with the first aspect,  that is so vexing to us today; and it is these differences that are fueling such continuing political and social immoderation across the partisan camps.  I don’t have an answer as to how to build a bridge between these camps, except to start to understand the source of the divide between us, which is why I presented Lewis’ writing on the subject at length.  Maybe by presenting this side of the debate, we can start a better, more constructive—dare I say, more moderate—dialogue for the future.

In closing, let me punctuate what Lewis wrote with the final passages from the Virginia Declaration of Rights of June, 1776, which were written by George Mason, with the help of James Madison and Patrick Henry:

…no free government, or the blessings of liberty, can be preserved to any people, but by firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles…..the duty which we owe our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence;…and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

Let’s keep this passage in mind as we try to find the right path ahead.

Can the 10th Amendment provide a path to address the “Immigration Issue”?

by

Why can’t we seem to resolve the “immigration issue” this country has been debating, off and on, for the last forty years (and which we have debated intensely and incessantly for the last 4-5 years)?

This question has been nagging at me for more than a month now.  It most recently arose during the November meeting of the Clear Lake Area Republicans, when our focus-group discussion identified several issues that we bundle together as the “immigration issue” as the most important local and federal issues we currently face.  Then, in mid-December, I attended a debate about immigration policy between two well-intentioned and well-regarded local Republican leaders sponsored by a local chamber of commerce, which ended-up stirring the issues around rather than providing much clarity. I walked away from both of these events feeling that this issue—or bundle of issues—seems to be a wound that we can’t get to heal, no matter how hard we try.  In fact, the harder we try to close this wound, the more we seem to bleed from it.

This feeling is exacerbated for me, because I deeply believe that the long-term solutions to many of this country’s problems will be solved, if at all, by re-balancing the allocation of responsibility and power of government based on the principles contained in the 10th Amendment—and yet, effectively addressing the immigration issue has seemed to me to require a more coherent and aggressive federal, rather than a state and local response.  Because Washington seems increasingly incapable of addressing its own responsibilities wisely and effectively, this problem has seemed impervious to resolution, which is why States have tried to act on their own to attack the issue.

But, just when I decided to stop thinking of this issue for a while, some thoughts came to me, which I want to share with you as we move into 2012.  I am not promising that my thoughts provide all the right answers, or even the right path toward any of the right answers.  But, I hope they will provide a different perspective that could get us closer to finding at least some answers.

I think the reason that the present immigration debate seems like it is beyond resolution, is because the current problem arises from a structural dilemma related to the federal structure of our governments.  To understand this dilemma, I first want to digress to discuss that federal structure.

In Federalist 45, James Madison made this following observation about the nature of the different spheres of responsibility and powers delegated to the federal government and retained by the states:

The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State government are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Consistent with this view, the Supreme Court, after the Civil War and the passage of the post-war amendments that expanded the scope of federal authority over civil rights of citizens, articulated the difference this way:

… the United States is not only a government, but it is a national government, and the only government in this country that has the character of nationality. It is invested with power over all the foreign relations of the country, …, all of which are forbidden to the state governments. It has jurisdiction over all those general subjects of legislation and sovereignty which affect the interests of the whole people equally and alike, and which require uniformity of regulations and laws, …– all which subjects are expressly or impliedly prohibited to the state governments.

Knox v. Lee, 79 U.S. 457, 555 (1871).

While under our Constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.

The Chinese Exclusion Case, 130 U.S. 581, 604 (1889).

What these statements show is that the general division of responsibility and power between the federal and state governments was based on a division between authority over external and purely national issues on the one hand, and authority over local issues on the other hand; and on a further understanding that most issues faced by government were local in nature.  With these general understandings in mind, Hamilton, in Federalist 32, describes the further idea of the limited nature of the delegation of authority to the federal government this way:

But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.

He goes on to identify three types of exclusive delegation:

…where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance the authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union to which a similar authority in the States would be absolutely and totally contradictory and repugnant.

Finally, Hamilton identifies the express delegation of the power to “establish an Uniform Rule of naturalization throughout the United States,” as an example of the third type of express delegation, and this view is elaborated upon by Madison in Federalist 42.  So, what our Founders intended was to give us a federal government vested with expressly delegated responsibilities, which were intended to address external and purely national issues.  One of those expressly delegated issues was Naturalization.

Now, before we return to the primary topic of this post, we need to address the difference between “naturalization” and “immigration”.  Naturalization is the process by which a foreigner, once having arrived in the country, may stay and become a citizen.  Immigration is the process by which a foreigner comes to, and enters the country.  The power over naturalization was expressly delegated to the federal government, in large part because of the problems the colonists encountered with restrictions imposed by Britain prior to the Revolution, and inconsistencies created by the States under the Articles of Confederation.  However, the Constitution is silent as to the power over immigration (except for an odd reference in the provision related to the continued importation of slaves until 1808).  Consistent with this silence, and with the colonists’ anger over limitations on voluntary immigration imposed by Britain before the Revolution, the federal government did not impose restrictions on voluntary immigration until the 1880s.

When the federal government first imposed restrictions upon immigration, the action was not justified as an exercise of the “necessary and proper” power related to naturalization but, instead, was justified as enforcement of treaty provisions with China and Japan, which restricted immigration from those countries. Eventually, the Supreme Court ruled that the authority to regulate immigration was inherent in, and arose from all of the powers vested in the federal government to conduct foreign affairs—or, as the Founders would have said, from the delegation of powers over external issues.  Then, as we in Texas remember all too well, about 30 years ago in Plyer v. Doe, the Supreme Court narrowed the ability of States to regulate the conduct and status of persons who had entered and stayed in the country in violation of federal immigration laws, by requiring that States provide the children of such persons equal access to public education.  And that opinion has led, in large part, to the tremendous strain on States and communities caused by the “immigration problem” in this country ever since.

So what is the structural dilemma I spoke of earlier?  Unlike most of the problems that have arisen from the allocation of power during our history, the current immigration problem is unique.  During most of our history, we have battled over the adequacy, extent, or legitimacy of the power delegated to, or usurped by the federal government from the states or individuals.  Whether the issues have been slavery, civil rights, economic, or social regulation, the debates normally centered on whether the national effects from local actions actually made the issues national in scope, and whether the power being debated could be exercised legally and effectively from Washington.  The current immigration debate is the exact opposite.  The immigration debate involves an issue that is expressly or inherently vested in the federal government to address (whether it be naturalization, immigration, or border security), but which creates negative effects that are almost exclusively local in nature.  From the strain on public schools and hospitals, to the local insurance and job markets, communities are absorbing the brunt of federal inaction.  In the meantime, communities and States have very limited legal means at their disposal to address these effects.

That the federal government has failed, and continues to fail, to address today’s immigration and naturalization issues is beyond serious debate.  It has failed to develop and maintain an appropriate bilateral relationship with Mexico within which border security and immigration could and should be handled.  It has failed to secure our borders to know who is coming and going, and to enforce current restrictions on entry.  It has failed to address the problem of expired visas for students and temporary workers.  It has failed to enforce laws on the books designed to stop the employment of persons who have entered and stayed in violation of law.  It has failed to enforce deportation laws.  It has failed to create positive laws that promote immigration of workers we need for today’s economy.  These failures have created a de facto federal policy of non-enforcement of illegal entry restrictions.

Though this de facto federal policy has created stresses on State and local governments throughout the nation, the problem is most acute where the policy is most abused:  in the States and communities closest to the border with Mexico.  In the meantime (though we should get some clarification from the U.S. Supreme Court on this issue by June, 2012), current legal precedents limit the extent to which States and local governments can address the impact of this policy.  While there is no question that State and local governments can, and constitutionally should enforce federal immigration laws, the current administration has been hostile to even modest attempts by state and local governments to cooperate in or assist with such enforcement.  Beyond basic enforcement, state or local regulations that attempt to regulate the activity of people because of their immigration status, to deny benefits to people because of their immigration status, or to impose additional state-law penalties for violating the federal immigration laws, have rarely been upheld by the courts.

So, while the federal government continues to dither, what can we do?  What should we do?

The simple answer is that we must do what we can do, and what we can do is take back control of our communities and States, consistent with the 10th Amendment and with the federal structure I discussed above.  To take back this control, we are going to have to embrace a paradigm shift in our thinking, though.  This paradigm shift will require a more realistic and forgiving attitude toward those who have come here, or who have stayed here, in violation of the law; and it will require a more appropriate self-image of ourselves and our role in this process.

First, the realism:  millions of people who crossed the Rio Grande and stayed illegally over the last generation, or who over-stayed their visas, will never go home.  Whether it is because we won’t have the stomach or the resources to do it, we will not deport that many people; and many of them will have planted too many roots here to ever leave voluntarily, no matter how bad the economy gets.  Moreover, for those who have established homes in the Southwestern U.S., why would they go home when they can build a better life in a place that is still culturally and historically familiar to them?

Second, the forgiveness:  except for our most serious crimes, such as murder, every crime has a “statute of limitations” period, after which someone can no longer be prosecuted.  Crossing the border and staying without complying with federal law in order to work and make a living are crimes, but they aren’t murder.  Just as society forgives other crimes over time, we need to begin forgiveness (especially if it comes with repentance, such as compliance with payment of fines and prohibition against citizenship).  We also need to remember that one of the hallmarks of our legal rights has been the principle that the “son is not liable for the sins of the father,” which is embodied in the Constitutional prohibition against bills of attainder, and to stop condemning children for the crimes of the parents.  Finally, we have to understand that all of us—citizen and illegal immigrant alike—have been harmed by the failures of the U.S. and Mexican governments to address the problems that have caused and attracted this continued exodus into the U.S.

Third, and maybe most importantly, we have to stop wallowing as victims over this issue.  For years, we have seen ourselves as the victims of a wave of illegal activity without protection from our federal government, and, to add insult to injury, we’ve seen ourselves as having to support the “villains” with public benefits.  In response to this feeling of victimization, we’ve come to sound and act collectively like “Inspector Javert,” the character from Victor Hugo’s Les Miserables, who eventually loses his soul over his quest to bring the petty criminal Jean Valjean to “justice” long after Valjean had paid his penance.

Ladies and gentlemen, these “villains” are our neighbors, regardless of who they are, where they came from, or how they got here.  And, as I noted before, most of them and their children will be here a very long time.  The Democrats and other organizations know this, and they are advocating that these neighbors remain separate from the rest of the larger community, and, therefore, dependent on unions, government and their political party for years to come.  As long as the Democrats can maintain the federal status quo, and we refuse to engage with these new neighbors, we condemn these newcomers to become wards of the long-term Democratic strategy for our country.

So, if the federal government won’t act, the paradigm shift requires us to use the principles of the 10th Amendment positively and aggressively to build better communities for the future.  To accomplish this shift, we will have to take control and build neighborhoods with these new neighbors.  The only way to build these bonds of neighborhood is through assimilation, and real assimilation is hard work—and takes both parties to make it happen.

That means, it is time we roll-up our sleeves and help our new neighbors to assimilate:  to privately establish the network of churches and private organizations that help neighbors and build communities; to teach English and help them become literate in our culture and history; and to mentor the establishment of private businesses and employment through which they can pay taxes, and support the public institutions that now support them.  We can not, and should not, reward the adults among them who committed the initial crime by granting them amnesty through a citizenship path (and we couldn’t do that anyway because that is the essence of the power of naturalization delegated to federal responsibility), but we must begin to fold their families into our neighborhoods so that their children—who will stay here because this is the only home they have known—become productive neighbors, and their children and grandchildren become productive citizens.

I know this paradigm shift does not address the actual needs at the federal level.  I do not address the federal problems, because, frankly, we know what needs to be done to secure the border and re-gain control over the legal flow of people into this country.  Our elected leaders in Washington will either have the will to pass this legislation, or we will have to keep electing new leaders until we find those who will.

But we can not wait for the stalemates in Washington, and between Washington and Mexico City, to resolve themselves before we begin to retake control of our lives and our communities.  That is the purpose of this idea of the paradigm shift—to use the ideas of the 10th Amendment to positively address the problems created by federal inaction and build stronger citizens and communities in the future; rather than to use the 10th Amendment as a negative argument to joust with the federal authorities over whether and how to should enforce federal law.

Some may label my paradigm shift as amnesty by another name, but it is not.  Amnesty, or other such regulations, deal with naturalization, and that is a federal responsibility.  In fact, if my idea would be implemented, there may indeed be neighbors who we help who eventually will be deported if and when the federal stalemate ends.  But the conditions of our schools and our communities, and the demands on our local infrastructures, require that we take control of this situation here and now where we live and work.  Frankly, this is what the Founders would have expected us to do.

I know many of you will disagree with what I have written here.  Do me a favor—read it once, give it some thought, then read it again.  Afterwards, give me your comments and let’s start a dialogue on this important issue.