July Bonus Links: Open Borders Edition

Hello again, fans. The fascist nightmare engulfing our country merited its own links post, so here you go. At the risk of putting myself on a government watchlist, I must say, never have I felt less enthusiastic about the patriotic celebrations of July 4th. I believe in what America ought to be, but am realizing that–structurally, intentionally–that is not what America is. (White person discovers the obvious, Episode N+1.)

My readers probably don’t know that “Jendi” was not my legal name–until last month, when the Hampshire County Court made my 40-year-long dream a reality. (Long story, of course having to do with my mother, not the point.) Now I am in the middle of the arduous process of changing all my official documents, which must be done at various far-flung government offices in a particular order and sometimes at ridiculous expense. Folks, I am shitting bricks till my expedited passport comes back from the State Department. Not because I plan to go anywhere, but because it’s suddenly occurred to me how creepy it is, that we are all technically imprisoned within the borders of the nation-state where we happen to be born.

George Mason University economics professor Alex Tabarrok makes “The Case for Getting Rid of Borders–Completely” in a 2015 article in The Atlantic. After citing statistics that immigration raises GDP, Tabarrok adds:

Immigration unleashes economic forces that raise real wages throughout an economy. New immigrants possess skills different from those of their hosts, and these differences enable workers in both groups to better exploit their special talents and leverage their comparative advantages. The effect is to improve the welfare of newcomers and natives alike. The immigrant who mows the lawn of the nuclear physicist indirectly helps to unlock the secrets of the universe.

What moral theory justifies using wire, wall, and weapon to prevent people from moving to opportunity? What moral theory justifies using tools of exclusion to prevent people from exercising their right to vote with their feet?

No standard moral framework, be it utilitarian, libertarian, egalitarian, Rawlsian, Christian, or any other well-developed perspective, regards people from foreign lands as less entitled to exercise their rights—or as inherently possessing less moral worth—than people lucky to have been born in the right place at the right time. Nationalism, of course, discounts the rights, interests, and moral value of “the Other, but this disposition is inconsistent with our fundamental moral teachings and beliefs.

Economic data is easy to massage to fit one’s political views, certainly, but it’s worth questioning why conventional wisdom and government policy currently encourage the free movement of capital but not the free movement of workers.

At the leftist political journal Jacobin, Domenic Powell lays out a program for the Democrats to implement meaningful immigration reform in his article “How to Abolish ICE”. The piece suggests strategies we can try at the local level, such as pressuring our law enforcement agencies to stop sharing data with ICE and to end agreements whereby ICE rents space to detain immigrants in our jails. The article also recommends that Congress set up an immigration court system that is independent of the Justice Department, to stop treating all undocumented people as presumptive criminals.

If you’re in Massachusetts, call your state representatives and Governor Charlie Baker to pass the Safe Communities Act, which cleared the Senate in May. Also see this article from Colorlines about “How You Can Support Detained Immigrant Families”. From protesting to donating to making phone calls, there’s something for nearly everyone to do. I’m hosting a birthday fundraiser through Facebook for the National Immigration Law Center.

Meanwhile, white evangelical Trump supporters are doing their best to destroy what’s left of Christianity’s reputation. Last month, Attorney General Jeff Sessions justified tearing immigrant children from their parents by citing Romans 13, saying that everyone must obey the laws because “God has ordained the government for his purposes.” Progressive Christian blogger Fred Clark, a/k/a Slacktivist, deconstructs this interpretation in “Romans 13 and the Gettysburg Address”:

[N]ote the full enormity of what Sessions is doing there. He’s not just invoking the Bible to justify this one policy, but to justify — as beyond question and beyond criticism — any and every policy. Yes, specifically he’s claiming the divine right to put children in cages, but more than that he’s claiming to be an agent of God and therefore that whatever he does is divine, and that we mere mortals have no choice but to submit and obey…

…The idea of “the government” that Sessions is asserting — and attempting to sanction with scripture — is not compatible with the idea stated by our greatest Founding Father, Abraham Lincoln, in the Gettysburg Address: “government of the people, by the people, for the people.”

Slacktivist remarks that most Christian political philosophy, be it liberal or conservative, makes the mistake of treating “the government” as an entity separate from “the people”, something that was true in St. Paul’s time but not in our modern democracies. (As humorist P.J. O’Rourke wrote at the end of his political satire Parliament of Whores, “In a democracy, the whores are us.”)

We don’t have a king or a Caesar, we have usWe are, in this time and place and in this system — however imperfectly realized — the authorities appointed as servants of God to do good.

We must not irresponsibly reject that appointment by reading Romans 13 as though we were first-century subjects of an all-powerful emperor. We shouldn’t be reading that passage for wisdom about our accountability to government, but for wisdom about our accountability as government.

Otherwise we’re conceding the argument to Jeff Sessions and other would-be rulers claiming a divine right to demand our submission. That will make us accountable to him to obey whatever he tells us about children in cages. We need to turn that around. We need to demand that he be accountable to us, and that if what he does is wrong he should fear us, for we have authority and we do not bear it in vain.

It’s been a disappointing year for progressives at the Supreme Court. I’m especially worried about how the Court has been chipping away at the Voting Rights Act, because the Republicans have been trying for decades to rig the system by disenfranchising poor and nonwhite voters. In the Husted case, decided last month, the Court narrowly upheld Ohio’s shady plan to purge voters from the rolls based on their lack of response to an easy-to-miss mass mailing. Over at Slate, commentator Mark Joseph Stern describes the battling jurisprudential philosophies of Justices Sotomayor and Alito in “Sam vs. Sonia”. He thinks the conservatives are winning:

In the legal battles between state officials and Americans who believe their suffrage is under siege, whose voices matter most? Those of lawmakers complaining about the difficulty of performing their duties, or those of minorities who feel their most fundamental right has been suppressed? Which side deserves the Supreme Court’s empathy? Through Alito, this court has clearly picked a side, elevating the voices of state officials who insist that their purges and gerrymanders do not block equal access to the ballot. Its favoritism will have dire consequences for decades to come.

Poor judicial decision-making comes as no surprise to the folks at the socialist journal Current Affairs, such as writers Brianna Rennix and Oren Nimni, who explore the quirky and arbitrary power of individual bench-sitters in their article “Judging the Judges”:

Knowledge of the individual personalities of judges is such an important feature of the legal system that it operates as a skill in a lawyer’s toolkit, one that can be paid for. Supreme Court clerks who choose to go to big law firms after clerking on the court receive massive bonuses, often hundreds of thousands of dollars. The main asset they bring to their new firms is their firsthand knowledge of the intricacies of a particular Supreme Court justice’s mind. Large firms understand the strategic value of knowing a judge personally—what they like, what they dislike, what considerations will make them most likely to agree with you.

With judges wielding such concentrated and individualized power over cases, courtrooms quickly become stages for bizarre legal farces. Lawyers make arguments they don’t believe, that the judges know the lawyers don’t believe, but everyone has to play along. Only the judge has the power to decide when the game will end, and how. Let’s say, for example, that your client lost a case because they didn’t show up for a previous hearing. They likely missed that hearing for some reason that a normal person would find totally understandable: They didn’t have a lawyer at the time, they don’t speak English that well and didn’t understand what the hearing was for, they couldn’t get time off work, the bus got stuck in traffic on the way to the courthouse. But under the applicable statute, it’s likely that none of these perfectly rational and comprehensible explanations are admissible. In this situation, you know, and the judge knows, the real reasons the client missed the hearing. But you’ll have to try to make an argument about something totally different, something that this particular judge might choose to accept, even though they know that your argument has little to nothing to do with the reality of the situation.

At times, this peculiar trade in niche arguments feels thoroughly demented. If the judge wanted a bribe, that would at least feel normal. Everyone wants money. But what judges want is some strange intellectual product. Maybe they want you to cleverly contort the facts into some tiny legal box. Maybe they want to be convinced that doing whatever you’re asking them to do will quickly vanish the case from their docket and free the judge up to go to lunch. Or maybe the judge made up their mind about the case the second they glanced down at the paperwork, and is now simply idly watching you dance.

The fact that legal arguments are usually completely divorced from reality is partially a function of the law itself, and not solely the judges. That said, nothing prevents judges from acting like rational, normal people instead of playing games with people’s lives and making lawyers jump through hoops.

What, then, is the answer? Not “impartiality”, which the authors believe is an impossible ideal. They argue that Americans on both sides of the political spectrum should put less faith in the judiciary to drive social change:

If we aspire to a form of democracy where there is an actual connection between the organizing efforts of the general public and the subsequent behavior of our elected officials, pushing for reforms to make our elected government more responsive to popular concerns is a better route than relying on distant elites to undo the mistakes of other elites. When you put power in the hands of unaccountable elites, you never know what they will do with it.

While it’s not a cure-all, it would also help to reform and diversify legal education, so that judges are not so out of touch with the real lives of the ordinary people before them:

Part of the problem, of course, is that judges are separated from poor litigants by class and, often, race. If we want more judges to exercise discretion in an empathetic direction, it seems crucial to diversify the pool of judges, perhaps directly through quotas, or indirectly by reducing social and financial barriers to entry in the legal profession. Also important is changing the dominant ethos of legal education, which overwhelmingly privileges the pet concerns of legal academics and corporate clients over the kinds of issues that affect the vast majority of the people caught up in our courts.

I second that remark about legal education. Personally, my journey from young libertarian to armchair radical began 21 years ago when I started a clerkship with a New York State appeals judge. He happened to be a progressive, which made my transformation smoother, but what really opened my eyes was the case summaries themselves. Our staff attorneys would write summaries of the legal briefs and the trial record, so we could quickly handle the cases that didn’t present any important legal issue and focus on the knottier ones. For the first time, I was reading true stories of what it was like to live in dangerous public housing, or be sentenced to 5-10 years for selling $10 worth of crack. Relative to my peers in elite schools, I’d felt underprivileged; now I saw how privileged I was compared to other people in my neighborhood, let alone the city. We never read those kinds of stories in law school. That’s outrageous. I do think we brought about some positive changes and did justice in our limited way during my 3-year tenure. The courts alone won’t save us, but wherever you are, do what you can.

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