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My current argument is not one about what the substance of our immigration policy should be (I’ve made such arguments in, e.g.,  A comprehensive overview of the immigration issue, Legality, Morality, and Reality Regarding U.S. Immigration Policy, Godwin’s Law Notwithstanding, Basal Ganglia v. Cerebral Cortex, Basal Ganglia Keeping Score, The Nature of the SB 126 Colorado ASSET DebateGodwin’s Law, Revisited, and A Humane & Rational People), but rather about what the process for determining our immigration policy should be. As always, this argument is just one instance of the larger argument that we should commit ourselves to striving to apply reason to evidence in service to humanity, rather than engaging in careless habits that result in the application of irrationality to ignorance in service to inhumanity.

The focus of this essay is one clearly fallacious argument, that is, in fact, the principal argument used by those who take a stand unyieldingly hostile to millions of people, of a certain status, who currently reside in this country (and, by implication, millions more who would like to, but have no legal pathway toward doing so). Debunking this one argument does not, by itself, debunk their entire position, but rather merely forces the debate into a more appropriate framework, where any and all substantive arguments they may have can compete with any and all substantive counterarguments, in a process which best serves our better angels by giving our baser demons fewer shadows in which to hide.

The fallacious argument to which I refer is that the current widespread hostility toward undocumented immigrants and residents, in which these particular ideologues actively participate, is not only legally warranted but legally mandated. Their error is their failure to understand that the law, in the final analysis, is our servant, not our master. (Yes, in an intermediate sense the utility of the law is that it is binding and not optional, but it is designed to be a malleable and adaptable tool rather than, in its particulars, a fixed and permanent shackle.)

As an aside, the irony of this error is one thread of a larger hypocrisy: The people who make it are overwhelmingly the same people who insist that they are the most committed to “Liberty,” while in reality being the most committed to authoritarianism. But that is a topic for other essays (see, e.g., The Catastrophic Marriage of Extreme Individualism and Ultra-Nationalism).

The argument frequently invoked by this particular faction, that their hostility is not directed toward immigrants but rather only toward illegal immigrants, and that the word “illegal” conclusively supports their public policy positions on the issues of immigration and residency, reflects a fundamental misconception of the nature of law and the responsibilities of citizenship in a popular sovereignty. They mistakenly believe that a current legal status quo is the definitive refutation of both any public policy arguments that critique it, and any public policy arguments that defend other aspects of the current or proposed legal status quo that they erroneously consider somehow legally prohibited by some presumed inconsistency with the aspects they prefer. In other words, they presume that public policy arguments can’t challenge existing laws that they do like, and, at the same time, can’t defend existing or proposed laws that they don’t like, the latter based on some presumption of a legal prohibition against the existence of any laws which presuppose the violation of other laws. Both of these beliefs are easily debunked, and their mobilization in service to a blindly ideological position easily demonstrated.

Laws are something we make, implement, interpret, modify, and rescind according to processes that are themselves established by law (see The Fractal Geometry of Law (and Government)). They do not define what the conclusion of public policy debates and legal processes should be, but rather what they thus far have been. They obligate, with varying degrees of flexibility, individual behavioral compliance, not collective ideological conformity, rigid administrative enforcement, or perpetual universal legal consistency. The fact that laws do not mandate the latter three is in large measure how they evolve and adapt to changing circumstances, values, and understandings.

The response to an argument that we should, within the constraints and according to the guidelines of our current legal framework, alter or reinterpret or modify our implementation of our legal framework, with the counterargument that we can’t because the current substantive legal status quo is different from what the modified legal status quo would be, is like arguing a century and a half ago that we can’t abolish slavery because the right to own slaves is protected by law (an argument which was, in fact, frequently and persistently made). And to argue that we can’t pass laws short of a comprehensive change of paradigm because it would be an affront to that dominant paradigm is analogous to having maintained that we couldn’t have made the morally laudible step of allowing escaped slaves to attain their freedom in non-slave states because to have done so would have simply encouraged more slaves to escape.

Let me be clear: I am not comparing current anti-undocumented immigrant ideology to slavery. Rather, I am comparing the defense of one set of laws that we recognize in retrospect to have been morally repugnant and well worthy of being changed with the defense of a current set of laws that some (including myself) argue is also morally repugnant and well worthy of being changed, in order to illustrate that the public policy debate should focus on the value of the law rather than on the fact of its existence. A debate can and should be had about whether the current set of immigration and immigration-related laws are ideal or morally repugnant or somewhere in between. The mere fact that that set is the current law is irrelevant to that debate.

(It’s worth noting, however, that there are some similarities: Slaves were considered not to be citizens, a perception codified in law by the Supreme Court’s infamous Dred Scott decision. Abolishing slavery would have admitted this formerly excluded class into national membership. Allowing escaped slaves to attain freedom but not necessarily citizenship in non-slave states would have been analogous to allowing undocumented immigrants to enjoy some of the opportunities afforded citizens and legal residents without being automatically granted that status itself. The 14th Amendment’s establishment of jus soli, the doctrine that anyone born on American soil is an American citizen, was part of the long-unsuccessful attempt to demolish the legacy of slavery, root and branch, and still has implications relevant to immigration policy. Though the differences are greater than the similarities, the fact remains that exclusionary policies that tend to dehumanize those excluded inevitably resemble one another to some degree. See, e.g., Godwin’s Law Notwithstanding.)

It is our responsibility to determine what our laws should be, while also considering how best to implement and enforce the laws that currently are. Those with a zero-tolerance attitude toward undocumented residents, insisting that we are legally required both to in no way accommodate their presence here and to remove them all regardless of the costs (fiscal, economic, social, demographic, and moral), should also, for consistency, insist that every motorist who ever drifts even just one mph over the posted speed limit should be caught and fined regardless of the costs, and that laws which presuppose violations of the speed limit (e.g., prohibiting driving in the passing lane, even at or above the speed limit, on the basis that it obstructs other motorists who might want to pass) are somehow unacceptable (or themselves “illegal”).

Or, to pick a more illuminating example, even though it is illegal to jaywalk, a motorist is still legally obligated to yield to that law-breaker, who is thus protected from some of the negative consequences of his or her infraction by another law accommodating it. (After all, aren’t we just encouraging more people to jaywalk by requiring motorists not to run them over?)

Again, let me be clear: I am not comparing illegal immigration to speeding or jaywalking.  I am, rather, debunking the fallacy that no law can or should exist which presupposes, or even at times accommodates and implicitly “encourages,” the violation of another law. Our laws neither require nor benefit from that kind of rigid consistency: We can, and should, have laws which both prohibit certain activities, and that protect or accommodate those who violate them. Such laws are particularly well advised when the infraction is non-violent and non-predatory, the protection vital to that person’s safety or sustenance, or the accommodation ultimately in the public as well as private interest (such as by giving all residents of the country maximal opportunities to become productive members of society, rather than denying such opportunities and thus increasing the rate of socially, fiscally, and economically costly dependency and predation).

When people oppose, for instance, a law which would allow in-state undocumented high school graduates to attend state universities at in-state tuition rates, with the argument that the current law somehow prohibits the passage of such a law (“what part of ‘illegal’ don’t you understand?!”), they are inventing a legal doctrine that doesn’t exist (a requirement for perfect consistency among all laws), in order to insist on a particularly vindictive and counterproductive policy position.

Our national debate regarding immigration (as with all issues) needs to focus on what set of policies realized through what legal paradigm best serves our national interests and values. Citing the current legal status quo as an argument in that debate is, in reality, an attempt to insulate preferred elements of that status quo against criticism without having to mobilize any rational or informed argument, or address any rational and informed counterarguments, to do so. At the same time, citing one aspect of the current legal status quo (e.g., the laws against entering and being in the country without legal authorization) as an argument against another aspect of the current legal status quo (e.g., administrative policies not to target for removal those who have not committed other crimes) is an attempt to argue in favor of a change in the legal status quo without having to mobilize any rational or informed argument in support of such a change.

These are not just irrational and, to put it politely, “information-disregarding” arguments in our national debate on immigration policy, but are also instances of a larger contest in American political discourse: The contest between, on the one hand, a commitment to reason applied to evidence in service to humanity, and, on the other, a commitment to irrationality applied to a disregard of the evidence in sevice to inhumanity. It is a contest which those of us who champion the former must win both issue-by-issue, and in more profound ways as well, transcending the individual issues, reaching into the heart of our collective consciousness, transforming with the spirits of reason and goodwill the memes and emes of our own persistent inhumanity.

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(The following is a complete Facebook thread on DW’s Facebook page, omitting only a few casual initial comments, and adding in two new paragraphs -the third and fourth- inserted into my final comment, on the anti-intellectualism of oppressive movements, even those that were established on the basis of intellectual doctrines, and one long parenthetical on the meaning of “republic.” I post it, as usual, to highlight the contrast between the tone, tenor, and substance of the opposing positions.)   DW: “Timid men prefer the calm of despotism to the tempestuous sea of liberty.” Thomas Jefferson.   Steve Harvey: I like the quote, but to transcend historical context I would amend it to read: “Timid men prefer the calm of false certainties to the tempestuous sea of true liberty.” What we normally mean by “despotism” is one kind of false certainty, but the broader reality of despotism is the despotism of blind ideologies over minds that cease to believe in their own capacity for freedom, the despotism of anti-intellectualism and ignorance.   BS: In the era of Obama “freedom” refers to the freedom to live off the labors of others, “anti-intellectualism and ignorance” is the refusal to believe in globull warming, and the insistence that embracing the principles of the Constitution and Bill of Rights is a “false certainty.”   BS: The current Occupy Wall Street movement is the best illustration to date of what President Barack Obama’s America looks like. It is an America where the lawless, unaccomplished, ignorant and incompetent rule. It is an America where those who have sacrificed nothing pillage and destroy the lives of those who have sacrificed greatly.

It is an America where history is rewritten to honor dictators, murderers and thieves. It is an America where violence, racism, hatred, class warfare and murder are all promoted as acceptable means of overturning the American civil society.

It is an America where humans have been degraded to the level of animals: defecating in public, having sex in public, devoid of basic hygiene. It is an America where the basic tenets of a civil society, including faith, family, a free press and individual rights, have been rejected. It is an America where our founding documents have been shredded and, with them, every person’s guaranteed liberties.

It is an America where, ultimately, great suffering will come to the American people, but the rulers like Obama, Michelle Obama, Harry Reid, Nancy Pelosi, Barney Frank, Chris Dodd, Joe Biden, Jesse Jackson, Louis Farrakhan, liberal college professors, union bosses and other loyal liberal/Communist Party members will live in opulent splendor.

It is the America that Obama and the Democratic Party have created with the willing assistance of the American media, Hollywood , unions, universities, the Communist Party of America, the Black Panthers and numerous anti-American foreign entities.

Barack Obama has brought more destruction upon this country in four years than any other event in the history of our nation, but it is just the beginning of what he and his comrades are capable of.

The Occupy Wall Street movement is just another step in their plan for the annihilation of America .

“Socialism, in general, has a record of failure so blatant that only an intellectual could ignore or evade it.”

–Thomas Sowell (born June 30, 1930) is an American economist, social theorist, political philosopher, and author. A National Humanities Medal winner, he advocates laissez-faire economics and writes from a libertarian perspective. He is currently a Rose and Milton Friedman Senior Fellow on Public Policy at the Hoover Institution at Stanford University.

Steve Harvey: 1) “Living off the labors of others” exists in some form or another in all paradigms, including a radical libertarian one, in which investors still live off the labor of workers. The main difference is whether you are concerned that there is some semblance of equality of opportunity and a diminution of the effects of inequalities due to chances of birth. Certainly, the issue of avoiding perverse incentives, in which effort isn’t rewarded while non-effort is, is a vital consideration. But reducing that to some simple platitude which both ignores reality and rationalizes various forms of predation and exploitation is not the right way to address it.

2) Those who crow the loudest about their commitment to the Constitution are, ironically, those who are working the hardest to undermine it, by arbitrarily insisting that it supports only their own ideology in every instance, whether it does or doesn’t. In a previous discussion, when I pointed out the clauses that do not support your interpretation (e.g., the necessary and proper clause, the general welfare clause, the commerce clause, etc.), you insisted that your interpretation had to prevail, because otherwise the Constitution could be read to mean something other than what you want it to. That may be convenient for you, but it’s death to Constitutional Democracy. When the meaning of the Constitution becomes subject to ideological plebiscite, there is no constitution, but only ideological plebiscite.

3) The science supporting global warming, for example, is truly overwhelming. But you’re right that all questions should be subject to the discipline of scientific methodology, rather than the whims of those who wish to impose their own arbitrary truths on society at large, justifying actual tyranny with the ruse of claiming it to be the response to a fictional tyranny. It’s as old as the Inquisition, and smells exactly the same.

Steve Harvey: Buddy, I have my own issues with the “Occupy” movement, and especially with the argument that enforcement of laws is unconstitutional whenever someone claims that they are breaking it as an act of free speech, but are you suggesting that demonstrating is itself un-American? So, when Sam Adams led the Sons of Liberty on such lawless acts as The Boston Tea Party, he was emblematic of the America of Obama that you would rise above? No demonstrations, no lawlessness, but rather an America ruled by non-Ignorant people like yourself, people who have transcended ignorance by arbitrarily declaring themselves omniscient, whatever they believe or assert or advocate to be by definition the inviolable truth, and therefore all who disagree with them the weak and parasitic who must be extermina…, uh, let’s just say “reviled”?

You’re going to tell me that all “intellectuals” are incompetent and ignorant, while wise blind fanatics such as yourself have simply gotten it right? And how do we know that you got it right? Because you insist that it is so! No damned peer-review articles for you! Oh no! That’s the clever ruse of those idiot intellectuals, who think that you have to try to discipline knowledge by applying reason to evidence. The hell with that crap! Everyone knows what the one absolute truth is: Whatever Buddy Shipley says it is!

This is the fundamental, obvious flaw in all that you are saying: While those of us who realize that absolute truth is harder to determine than simply claiming that whatever the speaker believes it to be must be it, there are others who simply never take that step, and insist that the only truth that matters is the one they are already certain of. Might global warming be wrong? Absolutely. But not because people shout loudly enough that it is, but rather because careful application of scientific methodology bears the weight of evidence against it. And that is simply not the case at this moment in time. (All of the narrative used to claim that is just normal, human-cluttered science in action; always imperfect, and always better than arbitrary claims to knowledge forged without recourse to any, even imperfect, methodology at all).

I know that I don’t know, despite my decades of studying as diligently and broadly and intensively as I can. I’ve studied economics, but am less certain than you of the absolute economic truth, because I recognize complexity, I recognize uncertainty, I recognize the limitations of human comprehension. And without that, those who fail to take that step, are just a bunch of Jihadists trying to impose their own fanatical false certainty on a world that does not necessarily reduce to the caricature of their imaginations.

What we really need, what would really serve us as a nation and humanity as a whole, is to recognize our imperfections, to commit ourselves to some degree of humility and to reason and to goodwill, and to work together in that spirit to do the best we can. That’s the one absolute truth you can hang your hat on.

WS: It is very interesting that the people who say the most, actually say the least. Factual correction – the USA is a Republic, not a constitutional democracy.   Steve Harvey: I’m well aware of that semantic obsession, but the particular rigid label you’re relying on is relevant in the context only of one particular taxonomy, and not in the context of using words according to their generally applicable meanings. It is, in fact, perfectly correct to refer to the United States as a constitutional democracy, since it operates according to a combination of democratic and constitutional principles. It is also perfectly correct to refer to it as a republic, because it is by definition a republic within a taxonomy of political forms established in classical times. Either terminology is acceptable, and both are in widespread usage, including among political scientists and others who spend their lives studying precisely these issues.

(In a broad sense, “Democracy” and “Res Publica” are merely the Greek and Latin terms, respectively, for essentially the same thing: Government by the people. The classical meaning of “republic” is that of mixed government, incorporating elements of monarchy, oligarchy, and democracy, and that is the reason why America is “technically” a republic rather than a democracy. Ironically, the fact that it is technically a republic rather than a democracy disfavors rather than favors the ideology of those who insist on rigid adherence to this terminology: America was designed to balance democratic processes with a strong executive and a deliberative legislature rather than to reduce to government by plebiscite. The major distinction between a republic and a democracy is that a republic has a stronger central government.)

Secondly, it’s remarkable how frequently people who are unable to make a compelling substantive argument zero-in on form instead (such as harping on a shallow semantic obsession, or referring to the length or writing style of the argument they would like to debunk but can only flail against).

Third, the notion that more quantity automatically corresponds to less quality or substance is convincing to those who will grab hold of anything they can, but is absurd on the face of it. The Encyclopedia Britannica is rather lengthy, but says much, as would a library of all scientific literature, or any other comprehensive examination of any aspect of our existence or our surroundings. What I write may or may not be substantive; it may or may not be compelling; it may or may not be well-argued; but mere declarations in service to a desperate ideological preference, shored up by nothing other than an irrelevant observation about length or style, does nothing to inform anyone of whether it is or isn’t.

Steve Harvey: Now, I’d like to address the frequently invoked specter of anti-intellectualism that is so essential to your ideology. Intellectualism can indeed go astray: Marxism, for instance, was an intellectual doctrine that was disastrously wrong, both pragmatically and theoretically. The banner of intellectualism guarantees nothing. And all human endeavors, whether intellectual or not, are still human endeavors, contaminated by the messiness of all things that are pursued by mere talking animals.

But some disciplines, some procedures, some frameworks that humans create channel that messy on-going enterprise better than others. Scientific methodology, for instance, has proven itself to be much more robust in the reduction of error, and the production of insight, than any alternative approach to discerning the nature of our empirically observable context. Even though this is so, no scientific enterprise, no great discovery, no evolution of thought, was ever devoid of the human messiness that is inherent to all human enterprises. The effort to debunk science by pointing out instances of that human messiness is really just an effort to obscure the more reliable source of information in favor of less reliable sources of information.

Though some brutal and oppressive doctrines and movements have intellectual roots or supports (often, though not always, through misinterpretation of the theories they claim as their legitimation), it is also true that virtually all liberating and life-affirming doctrines and movements do as well. Furthermore, many oppressive doctrines and movements do not, relying instead on blind dogmas and fanaticisms without even a veneer of rational justification.

All oppressive or inhumane doctrines and movements eventually rely on anti-intellectualism to survive, because there is no bulwark against them as effective as the active engagement of the human mind, in service to humanity, and so no enemy against which they must more vigorously rally. (In fact, the presence of anti-intellectualism in a doctrine or movement is a fairly certain indicator that it is an oppressive or inhumane doctrine, for if it were not, it would not have to fortify itself against the glare of rational scrutiny.) No blind dogma, no rote deference to the often perverted and always interpreted doctrines of the past, no rigid enslavement of the human mind to any set of seemingly error-proof platitudes on which to rely, can or should free us of the responsibility to exercise our freedom as conscious and compassionate beings, applying the wisdom of the past to the challenges of the present and future.

We should all strive to be as rational, as imaginative, and as disciplined as we can be, and always apply that vital resource of human consciousness to the benefit of humanity to the best of our ability. We all implicitly agree with that. For instance, Buddy likes to post long strings of quotes by more or less revered thinkers of the past, as proof that his position is venerable and well-conceived. He is invoking intellectual authorities in service to his argument (such as it is). The problem is that you have to do it with a certain amount of integrity, based on testing tentative hypothesis in a context of skepticism and uncertainty, rather than doing it as an exercise in confirmation bias, cherry picking quotes to shore-up a presumed ideological certainty.

There is nothing undemocratic about using our brains. It does not undermine democracy to try to apply more rather than less living human genius to the challenges that face us as a nation and as humanity. We will do so more or less efficaciously, with better or worse results, bungling it sometimes, and achieving marvelous successes in others. But there is no better way to go, no preferable approach to confronting the challenges of self-governance and human existence.

Part of that methodology involves listening to and reading the diligent research and analysis of others, since no one of us has the time to contemplate and study and research all things all on our own. I can’t make a particle accelerator, or use one, or even interpret the data collected by using one, but I can benefit from the efforts of those who do. That is how human consciousness grows and is used to greatest effect.

We are in a shared enterprise, a complex and subtle and very significant one. We should treat it with the respect it deserves, and treat humanity with the compassion and commitment that we all deserve.

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