Immigration, Precision, and Casebook Authors with Agendas

In my Immigration Law class, the author of our casebook, Stephen Legomsky, has an agenda. That's probably not surprising, but I don't know when I've seen it quite so blatent, or done with such potential for misunderstanding the subject matter because of it.

Specifically, I find it very troubling that in the very first pages of the book, anounces that he will henceforth refuse to use the term “alien,” except in direct quotes, as he feels it “str[ikes] a disturbing chord,” and that it (even without the “illegal”):

"...connotes dehumanizing qualities of either strangeness or inferiority (space aliens come readily to mine), and that its use builds walls, strips human beings of their essential dignity, and needlessly reinforces an ‘outsider’ status. Some believe that its constant use and repetition also solidify racial and cultural stereotypes." Stephen H. Legomsky, Immigration and Refugee Law and Policy, 4th Ed. (2005), Pg. 1-2.

Ridiculous. And remember, this is even without the “illegal.”

“Alien” is a term of art with a precise legal meaning. It is central to the language of our statutes and our case law on immigration. It has nothing to do with racism, ethnocentrism, “basic human dignity,” or any other euphemism for “bigot” people use to vilify their opponents when the facts aren’t in their favor. Instead, he uses the term “noncitizen,” which he fully acknowledges to be less precise. Political Correctness just won another battle against Academic Integrity.

To refuse to use a term which describes a legal status that is central to the topic of the book you are writing does a grave disservice to those of us who are more interested in understanding the current state of the law than in the author’s policy preferences. It is like refusing to use the word “husband” in a family law class, because one thinks gay marriage should be legal.

Even worse is the refusal to use the term “illegal alien,” and the attempt to demonize those who do. Logomsky complains it is a “pejorative, irritating, and technically meaningless term,” ironically complaining that it has no “statutory or legal warrant.” He even stoops to the meaningless “no-person-is-illegal” meme – not that he insists on calling them “criminals.” Legomsky at 1192.

Again, “alien” is a legal term of art which refers to a certain legal status, not unlike the word “husband” in that sense. “Illegal” isn’t modifying the person, but the status descriptor noun “alien.” Their status is indeed illegal, as they are here in contravention of the law. Just as one could accurately be described as an “illegal husband” for marrying a girl too young to consent, the term is both useful and accurate.

With accuracy as the goal, compare “illegal aliens” to “undocumented migrants,” Legomsky’s preferred euphemism. A “migrant” can refer to anyone. It doesn’t tell you if they’re coming or going. It doesn’t tell you if they’re moving across state lines or international ones – citizens can be, and are, migrant farm workers. It doesn’t even tell you if they’re an alien – not all aliens are “migrating.” It has no “statutory or legal warrant,” which is so selectively important to the author. And it implies that people move all over international boundaries all the time, almost as if there’s as many Americans sneaking into Mexico as the other way around.

As for “Undocumented,” it can have so many meanings that it’s meaningless. Does it mean you don’t have documentation with you, or never got it at all? De minimus immigration violations? The implication certainly is that it’s merely a technical violation. “Undocumented” makes me think of driving with my license and insurance information at home, as opposed to “illegally” driving after never having obtained a license in the first place. The second is far worse, and is far more analogous to the situation of people sneaking across the border.

What’s more, there are plenty of illegal aliens who are documented to the nines – it’s just forged or stolen documentation. And there are plenty of perfectly legal undocumented aliens, such as those commuting back and forth from Canada or Mexico, or people awaiting status determinations.

If “Illegal” has pejorative or negative connotations, it’s because it should. We live in a society that respects the rule of law, and looks down upon those who ignore it. That’s part of American culture. It’s a reason people come here – they flee the lawless regimes of their home where their property and fundamental rights exist only at the pleasure of the corrupt government, or worse, of mob rule. Subverting the laws via that same mob rule (such as those who help illegals sneak across) instead of voting to change them is the surest way to destroy a free society, which is why people here illegally raise so much ire in most of America – and should.

“Undocumented migrant” is designed to do one thing – imply that violating immigration laws – and by extension, our immigration laws themselves – are just no big deal. And that attitude is as dangerous as it is absurd.

But Legomsky’s flexible quest for accuracy isn’t limited to muddying legal terms for aliens. Creative language can be employed to vilify an opposing ideology just as easily – and as inaccurately – as it can serve to excuse the lawless.

He refers to “anti-immigration lobbying organizations” when referring to any advocates of a more controlled border – another gross inaccuracy. Even Pat Buchanan (whom I’m not defending) isn’t “anti-immigration.” It’s the illegal immigration that we’re “anti.” To imply that the 80% + of Americans who want tougher border enforcement are against any immigration at all, or are racists, is simply dishonest and insulting.

Immigration law is complex enough without the casebook author deliberately attempting to muddy things by substituting what he thinks should be the law instead of describing what it actually is. Worse, it makes me have to wonder what else Legomsky is spinning or leaving out entirely that's less obvious to me. It's unfortunate that legal academics can't resist such PC madness, and instead stick to the language of the statutes, case law, and common sense.

What the ABA Talks About

The American Bar Association just finished up its conference in Honolulu. Thanks to the Federalist Society keeping tabs on them and keeping its membership updated, here's a sample of what the conversation is:

Professor Elaine Chiu of St. John's School of Law discussed "The Criminal Law in an Age of Multiculturalism." Chiu bemoaned that, right after 9/11, race relations dropped into the "dark ages" due in part to an "unassailable public support" for racial profiling and deportation. This was due to an increased commitment toward national security at the expense of "equality, respect, and dignity." However, changing demographics will lead to an "age of multiculturalism" that will in turn lead to other, new questions about the substantive criminal law. According to Chiu, "As awful as selective enforcement and racial profiling are, their effects are compounded if individuals are prosecuted on the basis of laws that are themselves inherently unequal and unjust."

Chiu describes current criminal law as "assimilationist," as it "expresses the values and norms of the dominant Anglo-American culture to the exclusion of other minority cultures." Although some may protest this characterization, "their failure to appreciate the presence of culture in our penal codes is the result of their moral absolutism and legal centralism." An example of this phenomenon is the use of deadly force to defend a home from a burglar. Chiu describes this as an "alarming trend of valuing self-defense over retreat." Not all cultures, she emphasized, value property over life. Property rights are a very Anglo-American concept. This "assimilationist" approach leads to outdated criminal laws out of step with the American populace. To have criminal laws (based on British laws) that reflect the beliefs of only half of the American populace is "preposterous." A second consequence is the "loss of justice and equality for defendants of minority descent." Ultimately, "assimilationism is a recipe for disaster."

Instead, Chiu advocates a combined pluralistic/individualistic approach to criminal law. Minorities would be able to receive a hearing for their side of the case. Chiu maintains that a "respect for a defendant's culture is respect for the defendant itself." She supports a "cultural defense." Minorities must demonstrate that they are "deadly serious in their cultural commitments...The majority's refusal even to consider minority practices as an alternative is intolerable."

So. A "cultural defense." Does that mean that white culture is different than black culture, and that we should treat black people differently in court than whites? What was the civil rights struggle all about anyway?

This kind of talk is profoundly anti-American. (Yeah, I said it.) We are a nation of laws, not of people. Lady justice is blind to color and "culture," and rightfully so. America is about taking personal responsibility for our actions, and about being treated equally under the law. We are an exceptional nation, and our "Anglo-American" culture, which respects property rights and personal liberty, is demonstrably supreme over any other in the world.

The American culture, economy, and way of life has produced the most successful and prosperous nation that has ever existed on the face of the earth. People from all over the world come to this country because they have rejected their culture and have chosen to become a part of ours. Why on earth would we want to backslide and make our laws conform with whatever defective cultures people have expended so much energy to escape?

Imagine if Professor Chiu were to get her way. Does that mean domestic violence among certain cultures should be excused? What if a Muslim killed a Jew? What counts as "black culture?" Should we allow slavery? Polygamy? Cannibalism? Bribery? Forced female circumcision of teenage girls? Arranged marriages of 12 year olds? (So much for international feminism...) I doubt that any Chinese immigrant, despite their Communist upbringing, respects property rights so little that they wouldn't think it was a big deal if someone broke into their home.

The ABA will always lean left. Most people go to law school because they want to save the world using government, and are thus big believers in big government. Fair enough. But this kind of thing (and there was plenty more ridiculousness) is beyond the pale. Until this stupidity is rejected, the ABA will never get one thin dime of mine.

By the way, one of the benefits of the $5 per year Federalist Society membership is that they have a reporter at all such ABA events, and E-mail out updates to the membership. (If anyone missed the last round and wants them forwarded, just shoot me an E-mail.) They also publish the ABA Watch, which keeps you apprised of what lobbying efforts they're spending the dues they're asking you for on.

The True Impact of Yesterday's March

After thousands of people who went to great effort to escape their socialist and lawless crappy homelands and sneak into this one protested that our country isn't socialist and doesn't ignore laws on the International Day of Communism, the real impact is summed up in a single image.


Yawn.

The impact would have been a net positive if the illegals actually dropped out of our country for a while day.

Let the backlash begin. Build a wall, and punish the companies who exploit poor workers who can't seek legal protection. Tyson Foods didn't close their plants because they actually give a damn about "illegal immigrant rights" - they did it because they desperately want to keep their cheap labor.

(And by the way, where are all the "labor and justice" liberals who are all fired up about the plight of the worker?)

This is the most capitalist, and as a result, the most successful, country in the world. We have a culture and tradition I am very, very proud of. I'm proud that millions of people desperately want to be part of it, and I welcome them (to come legally). It's a better, more successful culture and tradition than Mexico's (or any of the other places illegals come from) which is why they come here in the first place. If they're truly here to become Americans, let's at the very, very least honor that by ensuring it's still America that they're coming to.

The Smartest Perspective I've Heard Yet on Immigration

As always, Peggy Noonan is able to articulate so simply and so eloquently what I think is the truest comment yet on the immigration issue. She notes why it's important not just to us, but to them, for us to enforce our border laws, and why the "open borders" people are missing the point.

We are a sovereign nation operating under the rule of law. That, in fact, is why many immigrants come here. They come from places where the law, such as it is, is corrupt, malleable, limiting. Does it make sense to subvert our own laws to facilitate the entrance of those in pursuit of government by law? Whatever our sentiments and sympathies as individuals, America has the right, and the responsibility, to protect the integrity of its borders, to make the laws by which immigrants are granted entrance, and to enforce those laws.

I'll See Your Feingold and Raise You a Reid

Just when you thought Democrats couldn't pick a dumber issue to attack Bush on than being "too tough on terrorism," as Senator Feingold did in calling for censure, now their Senate Minority Leader has decided to expend political capitol fighting to keep illegal immigration flowing freely. To draw the line in the sand against the feelings of 75% of Americans on an issue seems to me to be less than politically wise, and would surprise me if the Democrats hadn't shown their political ineptness so many times.

I know, I know - they have a real plan, too, and they won't do amnesty, and they have a "better idea"... Yawn. Too many prominant democrats have used too much hyperbolic language against any attempt at immigration reform (such as Sen. Clinton's "police state" remarks) for this to be anything other than manna from heaven politically for the Republicans. At this point, it doesn't matter how good their ideas are. They've already defined themselves as "pro illegal immigration".

Once again - Democrats insist on hitting the Republicans where they are the strongest. Or worse, misunderstanding so badly WHY they're unpopular that they actually come out on a LESS popular side of an issue. It's like attacking a castle with only one wall by beating on the wall with your fists, instead of walking around to the other side. Wile E. Coyote would be proud.