Monday, February 03, 2014

Franchise limitation isn't the solution to illegal immigration

A few days ago, Roger L. Simon of PJ Media posted "A Modest Proposal for Immigration Reform".
"So here’s my simple — call it simple-minded, if you want — solution, my modest proposal.  Illegal immigrants, assuming they have lived here for a decent period of time and have not committed a felony, can have amnesty, but they can NEVER be allowed to vote.  They can do anything else that is legal, but if they want to vote — or run for office or practice law in our country, as just happened in California — they must return home and go through the normal immigrant application process, however long that may take until they have citizenship."
Now, Simon is a smart and well read man, and by invoking Swift in his title, it's possible that he is cueing the reader that the piece is satire... but it reads as straight to me.


Oh, on its face it sounds like a decent, practical idea, as Simon writes:
"This takes political motivations off the table in immigration policy and allows it to be about the lives of the people themselves, not the advancement of politicians and their parties.  If our Democratic friends mean what they say about their “compassion,” they should have no objection. If they do, they simply expose themselves as political opportunists with no real interest in the welfare of what they euphemistically choose to call “undocumented workers,” only in creating a voting bloc."
That would be nice... and overall, denying the franchise to illegals given amnesty citizenship seems like an OK idea... better than nothing, better than most legislation ideas being bandied about, and addressing one of the biggest problems with mass amnesty.

Except that passing such a law would, in fact, be disastrous.

Sebastian of PAGunBlog referred to the idea as "Amnesty Light", which isn't a bad way of putting it. More accurate though, would be to call it "Citizenship light"... which is a problem in several ways.

First of all, purely from a practical standpoint, the franchise limitation provision would fail in its intended goal.

The core issue, is that if such a law passed, it would effectively create multi-tiered citizenship: "Amnesty Citizens" and "Full Citizens"

In addition to the MANY other areas where this could be legally problematic; this would almost certainly be ruled, by just about any court, to be a 14th amendment violation (a privileges and immunities clause violation at the least, and possibly an equal protection violation).

Of course, it is not necessarily unconstitutional to limit the franchise by legislation (though based on court rulings over the past 60 years, that has some pretty strict, if ill defined, limits). For example, federally, we limit the franchise to those over 18. In most states they limit the franchise of felons, to some degree or another.

It is almost certainly unconstitutional however, to permanently deny franchise en-bloc, based on arbitrary characteristics, or on acts that were committed prior to passage of such a law.

It may even simply be ruled to be a fundamental violation of our system of citizenship as a whole; and that congress does not have the power to create a limited class of citizenship through legislation.

... I actually think that's likely. I don't believe congress has the power to create a limited citizenship by legislation.

I'd say that was absolutely the case, but there is a little wiggle room in the constitution, the 14th amendment, and the body of citizenship law; which potentially leaves it open to interpretation by a judge.

In that case, creating a limited citizenship would require a constitutional amendment... which will NEVER happen.
Oh an important aside... Some may suggest that the legal problems could be circumvented by requiring amnesty seekers to voluntarily agree to give up the franchise as part of their citizenship agreement. Effectively, each amnesty seeker would sign a consent decree voluntarily surrendering the franchise.
Normally, a consent decree can be used to enforce conditions that the government otherwise would not have the power to enforce, but there here are a few major exceptions.
This country has a body of anti-slavery and anti-abuse jurisprudence, which has enshrined a basic principle of law and contracts: American citizens cannot voluntarily give up their basic rights, privileges, and immunities. They can agree to reasonable restrictions such as non-disclosure agreements, but they can't contract themselves into slavery for example.
There may be some ways to make it work legislatively of course. For example, in order to get citizenship via the amnesty, each illegal immigrant would have to plead guilty to a felony (don't get me started on felonies), but that could get very messy very quickly.

Really though, which specific issue the franchise restriction was struck down for is unimportant. There are enough issues here that eventually (likely very quickly), there would be a successful challenge.

Given that any law passed would almost certainly have a severability clause, and that the supreme court would almost certainly strike down such a broad restriction on the franchise (certainly, many groups would litigate the issue constantly, and until they got the result they desired); effectively there would be no compromise. A few years after the law passed... possibly even a few months.... the voting provision would be struck down, and the amnesty citizens would be voters.

And let's just ignore fact that this would inevitably become an incredibly nasty race issue...

It's not just impracticable though. As a matter of principle, such a law would be morally and ethically wrong, and corrosive to our liberty.

Citizenship is, and must be, absolute. It's an all or nothing thing. The United States cannot create multiple classes of citizenship, de jure or de facto, and survive in any recognizable form.

Simply put, that way lies tyranny.

This is not to say that all people should be treated the same at all times.

Individuals may, through their own actions and choices, cause the PRIVILEGES* society grants them to change. A society can restrict certain privileges to certain individuals, who qualify by their own actions and choices; or deny them to others, disqualified by their actions and choices.

... so long as all have equal status under law, and the law is applied equally.

*The franchise is a privilege, not a right; as for that matter, is citizenship. They can be granted or denied by society, as society defines; so long as the law is applied equally to all, and not arbitrary or capricious.

Citizenship though, is absolute in this country. With one single and extremely limited exception, a citizen is a citizen, with equal rights, privileges, and immunities.

In this country, you can't say "you're a citizen EXCEPT...". It just goes against the nature of what we are... or at least what we're supposed to be.

There's a reason why there is only one office in this country that a naturalized citizen can't hold (Ok, technically two, since you have to be qualified to the the president in order to be the VP... but it's entirely likely that part of the constitution will eventually either be changed, or that the supremes will decide the 14th amendment moots it). There's a very big reason why it's explicitly called out in the constitution, as the sole exception to the rule that citizenship is citizenship, no matter what.

When the constitution specifies very broad rights and principles, and very narrow restrictions and exceptions to them, that's not an accident.

I'm not denying that giving somewhere between 10 and 20 million (and no matter what the propaganda says, largely unassimilated. I've lived in Arizona, California, Texas, Florida) illegal immigrants the franchise all at once could be a major problem. No matter what, it would be incredibly destabilizing, and we almost certainly shouldn't do that.

Neither though, should we weaken the essential protections our rights, privileges, and immunities have against an overreaching state, in order to attempt to address that problem.

It's a matter of the camels nose... or if you prefer, perhaps the slippery slope (slippery slopes may be a formal logical fallacy, but they do in fact exist. That's how incrementalism works).

Today, it's former illegal immigrants having the franchise restricted. If we allow that though, in principle, it could be acceptable to remove the franchise from any group. You'd simply need to come up with "compelling justification".

If you try to say "oh, that can't happen here"... it already has. In the civil war, WW1, WW2... The internment of the Japanese is the best known example, but far from the only one.

The fact is, several times in our not so distant past, the government has arbitrarily decided, based on "compelling interest"; that some people weren't "real" citizens, with all the rights and privileges thereof. That it was acceptable to simply ignore these peoples fundamental rights as human beings, never mind as citizens.

... and each time, the supreme court ruled it constitutional.

The principle of absolute citizenship should be just that, absolute. You either have citizenship, and all the privileges and immunities thereof... or you don't. That's it. there is no "in between"

Of course and unfortunately, these are principles that we rarely manage to uphold. The "real world" has more examples of inequitable treatment under law, than you could ever count.

That this is true, despite what are in theory our best efforts, should not make us discard the principle however.

On the contrary... That this is true, should make it incredibly clear, that we should avoid deliberately writing inequality into law; no matter how compelling the cause, no matter how limited the scope.

Oh... There's one thing I agree with Simon on in the entire:

"Our country lives by the rule of law — at least we should.  Immigration policy has been a farce."