A Plan for Immigration Reform

The right-wingnuttery is getting intense. Senator John Kyl, R-Ariz., has joined Senator Lindsay Graham, R-S.C., in a call for hearings on repealing the 14^th Amendment to the Constitution. His intent is to deny citizenship to the children of people who have immigrated to the U.S. illegally. Here’s the relevant section:

Amendment XIV

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2 deals with proportional representation, eliminating the counting of slaves as 2/3 of a person. Section 3 prevents former rebels from holding elected office. Section 4 authorizes public debt for paying the bounties and pensions of Unions soldiers, but renders invalid and illegal claims against the government by former slave owners for the loss of slaves.

That is a sizeable baby going out the window with the bathwater. Senator Kyle would bring us back to a pre-Civil War situation, with the states free to abridge our rights and pitch out due process. We might even get compensation claims from the descendants of slave owners. The main intent of the 14^th Amendment was to prevent the oppression and disenfranchisement of former slaves by southern states. Jim Crow, here we come.

The GOP joins the conservative wing of the Supreme Court in having no constitutional theory beyond expediency. Like the Roberts majority, the far right claims to follow constitutional originalism, a kind of ouija-board mind-reading of the founding fathers. They rail against their opponents for failing to uphold the constitution. Somehow I doubt that Senator Kyle will get any friendly fire from the GOP on this.

So what is to be done? The present immigration laws don’t work, except for big agribusiness and other employers looking for cheap, docile labor. Here are six basic ideas. Let me preface all of them by noting that we’ll need campaign finance reform first. Too many big donors are making too much money off the present situation.

1. Stop supporting wretched corrupt governments in Mexico and Central America. This has been our policy for a couple of centuries, intervening directly when democracy glimmers on the horizon. We have good relations with the Calderon administration in Mexico, despite video footage from the last election of Calderon supporters literally stuffing ballots into ballot boxes by the fistful, and supposedly secure ballot warehouses standing open and looted. Mexican citizens would get a better economic chance at home if they were actually represented by their government.

2. Change the way we subsidize corn production. Before the 1970’s we used price supports. When there was a good year and high production, corn prices would be forced down by the glut. The U.S. government would buy corn at a price that gave farmers a small profit margin. Later, in a bad year, the government would sell that corn at a somewhat higher price, making some money but damping down the shortage induced increase. This kept corn prices in a band that was profitable for the farmers but not ruinous for consumers.

In the mid 1970’s Earl Butz, then Secretary of Agribusiness, I mean Agriculture, decided (on behalf of his corporate sponsors) that we should have cheap corn. He pushed through a change in the law so that the government simply paid farmers some dollar amount per bushel. Farmers started planting every spare acre with corn, and the price plummeted. We got cheap corn, and with it, cheap chicken, pork, and beef from concentrated animal feeding operations. By which I mean a thousand cattle crammed in a pen, up to their shins in shit, pumped full of antibiotics.

This cheap corn made its way south of the border and destroyed the unsubsidized indigenous corn farmers, along with the local economies that depended upon them. Faced with a choice between abject poverty at home and not-quite-so-abject poverty in the U.S., people headed north.

If we went back to price supports the price of a bag of corn chips or a corn-syrup-sweetened soda would go up slightly, the price of a burger would go up somewhat more, and the farm economies of Mexico and Central America would have a chance to recover. People don’t leave their homes for a dangerous cross border journey and wretched jobs in a hostile country unless they have run out of options at home. Give them half a chance to make a living and they will stay south of the border.

3. Get the hell out of the North American Free Trade Agreement (NAFTA). Aside from the whole concept of free trade being an oxymoronic lie, it hasn’t done ordinary people any good. Decent U.S. jobs have become crappy Mexican jobs. Wages have dropped on both sides of the border. Subsidized U.S. grain has bankrupted Mexican farmers. It’s really the North American Corporate Behemoths Stomping on Ordinary People Act (NACBSOPA?) and it should die.

4. Legalize the possession and cultivation of small amounts of marijuana, as California may do with Proposition 19. Mexican drug gangs get 60% of their income from marijuana smuggling. Cutting off that money would go a long way towards promoting good governance and public safety in Mexico. Side benefit: freeing up huge numbers of police up here to pursue violent criminals.

5. This one is just the perversely humorous side of me coming out. Offer amnesty and citizenship to the first three illegal immigrants who turn in an employer for employing them. Lay in some big fines and some jail time for employing illegal immigrants. Watch the jobs dry up.

6. But seriously, there are somewhere between 11 and 14 million illegal immigrants living and working in the U.S. That’s one out of thirty of us. They have become an integral part of the economy. They have a lower crime rate than the rest of us. They are the reason that you don’t need a home equity loan to shop for produce. They are also putting downward pressure on wages and working conditions, because they can’t ask for better.

Yes, I’m talking amnesty. You want amnesty for your everyday crimes, and they want it for their paperwork crime. Picking our lettuce and gutting our chickens are not crimes in and of themselves. Give them a path to a work visa, if not citizenship. Then they will be subject to minimum wage laws and workplace safety laws, as well as unionization, making them less appealing to employers. It’s a strange paradox: offering them the opportunity to work here legally will reduce the opportunities for them to do so.

A hundred years ago, my ancestors were the bad guys. There were mass produced signs saying “Help Wanted – Irish Need Not Apply.” My people were the dirty, drunken, foreign, lazy, disease-ridden, fast breeding masses that threatened to overwhelm the country. As were the Italians, the Spanish, the Poles, the Hungarians, and everyone else from the slums and fields of Europe. It’s always the latest immigrants who get reviled by the established immigrants, their own history glorified. Let’s get over it and deal with the underlying reasons for the real problems.

Proposition 19

(Webmaster's note: I am noticing a lot of hits to this post from searches for "essays on proposition 19" and paraphrases of the same. Plagiarism is both dishonest and useless for learning. You are welcome to quote short passages with proper attribution, but do yourself a favor and do the real work.)

In November Californians will be voting on Proposition 19, a law that will legalize the possession, transport, and cultivation of small amounts of marijuana. Polls indicate that over 50% of Californians support the measure. It raises some interesting political questions.

The law is not going to authorize a marijuana free-for-all. Consuming it in public will still be prohibited, as will driving under the influence and selling it to minors. In fact, private individuals will be prohibited from selling it at all. Only licensed outlets would be able to sell it, and then in amounts less than one ounce. Private individuals would be limited to growing it on 25 square foot plots.

So what happens if it passes?

Depending on how you count it, California has between the seventh and tenth largest economy in the world, if you treated it as an independent nation. It has a population of roughly 38 million out of a U.S. population of 305 million, a little over 12%. It also has a projected $20 billion budget deficit and a crippled tax system. From what I read, the projected market for legalized marijuana in California would be $14 billion a year, dwarfing its vegetable crops and providing over a billion dollars a year in revenues. Releasing the 74,000 people in California prisons for marijuana offenses would save the state another billion.

I can see California fighting for 10% of its deficit. Money not only talks, it gets belligerent. Obviously, the state law would be in conflict with a welter of federal drug laws and enforcement efforts. The question is whether Washington and the Obama administration have the will to face down that 12% of the country.

It makes me think of the Berlin Wall. I was in West Berlin in 1988 and the wall seemed as if it would be there for another century. In 1989 the Soviet Union was coming out of the disastrous Afghan war and floundering in red ink due to low oil revenues. Hungary opened itself up as a conduit from East Germany to Austria in August 1989 and a stream of packed automobiles started making the trip to the west. There was some turmoil between this and the final opening of the border in November, but what it came down to was a lack of will on the part of the Soviets and Soviet bloc governments to intervene.

The Obama administration has been more compromising than combative in the face of opposition. I can’t see the feds raiding 25 square foot plots all over California without the cooperation of local and state police. It will go to the courts, for sure, but much can happen in the meantime.

Here’s a narrative for you: Proposition 19 passes. Various members of Congress express deep concern, as does the Obama administration, which starts legal proceedings. Much legal maneuvering ensues, paralleled by political maneuvering. California goes ahead with its implementation while the case goes through levels of appeal. Marijuana becomes legal in California and the world doesn’t end. Hundreds of millions of dollars in tax revenue start rolling in. California police are freed up to pursue criminals of all other types. Other states start noticing the cash flow and look thoughtfully at their own budget problems. Hawaii, which has already essentially legalized small possession and cultivation, follows suit. Colorado joins the revenue rush, along with Oregon, and Massachusetts. More states follow, and any Supreme Court decision is rendered moot. The feds drop whatever appeal is pending.

The thing that interests me about this possibility is the change in the balance of power between states and the federal government. I hear a lot in the news media about reactionary political movements such as the Tea Party, which emphasize a distrust of the federal government and an emphasis on state and local authority.  To them Prop 19 must be a case of “be careful what you wish for.” There are also more progressive decentralists who would welcome legalization. The reactionaries see the feds as pushing an economic and social agenda anathema to their beliefs. The progressives see the feds as sellouts to corporate power. Either interpretation can be used to promote devolution of power to the states.

It’s partly a question of legitimacy. Does the government in question act in a way that serves the best interests of its citizens? In the case of the War on Drugs, I would join many people, including over half of Californians, in saying no. Without legitimacy, it is a question of force and the will to use force. Sure, there are constitutional issues and the path through the federal courts, but even if the Supreme Court decides against California, what are the consequences? Sanctions on 12% of our population and a huge section of our economy? California sends more money to the U.S. Treasury than it gets back and exports huge amounts of food to the rest of the country. Federal troops? Not even a remote chance of that. California’s conformity with federal law depends on California’s willingness to play the game.

Arizona’s recent foray into immigration law was mostly shot down. The judge ruled that the law transgressed on federal jurisdiction over borders and immigration. In contrast, Proposition 19 specifically prohibits the import or export of marijuana across California’s borders, which dodges a constitutional challenge via the interstate commerce clause.

What happens when a state looks the federal government in the eye and Washington blinks?

Is this the beginning of a new sense of initiative at the state level? With a Democratic governor Vermont could implement the single payer system that Congress never considered. Same-sex marriage laws are cropping up, despite the federal Defense of Marriage Act. Will there be more state-chartered banks, like North Dakota’s, to challenge the Wall Street behemoths? Is this the beginning of the devolution of an empire? The federal government is hobbled by corruption, both in terms of legislative paralysis and credibility. The wealthy and the corporate beasts enjoy privilege and protection while the working stiffs struggle and seethe. The government is deep in debt, not yet fatal, but seemingly without a plan to dig itself out. It is in the slow process of extracting itself from two long, debilitating wars, without any signal success in either. What couldn’t be achieved directly by rebellion in the 1860s may be accomplished de facto by an enfeebled grip. Proposition 19 looks like the beginning of a trend to me.

Heat

It’s been too hot to blog. The high temperatures and humidity make your Minor Heretic’s brain whimper and try to shrink back into its reptilian bottom third. We just had a top-5 heat wave here in Vermont, five days in the 90s, setting records. Ok, nothing to you folks in Arizona, but a lot of us haven’t invested in air conditioning.

This June, according to NASA, was the hottest since modern record keeping began in 1880. It followed the hottest January to June in recorded history, despite the sun being at the bottom of its cycle. 2009 was essentially tied with 1998, 2002, 2003, 2006 and 2007 as the second hottest year in recorded history. 2005 took the gold, if one can call it that, contributing to the first decade of this century being the warmest on record. According to the NOAA, this June caps 304 consecutive months that are as above the 20^th century average as the kids of Lake Wobegon. Oh, and the Arctic sea ice is at its lowest area for June (42%) since anybody has been keeping track.

I was thinking about ice the other day, and not just because it was disappearing from my drink so quickly. I went down to the Lake Champlain Maritime Museum and attended the opening of the new Hazlitt Small Boat Exhibit. The museum has built a place to display their collection of historic small water craft. At the center of the building is a fully rigged ice boat. It’s basically a big timber with a couple of outriggers on skates, with a mast and sail. Ice boats can easily exceed 60 mph with a stiff wind and smooth ice. If there is ice. While visiting the exhibit I listened to some people talking about their iceboating experiences. They used to sail out on the broad lake almost every winter. Now they mostly sail in the shallower bays. The broad lake doesn’t “close” with the consistency it used to. I looked up the National Weather Service records of Lake Champlain freezing over. It only missed two years in the 19^th century. It failed to ice over four times in the first half of the 20^th century and twenty-five times in the second half. Seventeen of those ice free winters occurred in the last 25 years.

As I noted a couple of years ago, the mythical Northwest Passage, pursued for centuries by unfortunate explorers, is no longer a myth. You can now take a summer boat ride from the Atlantic to the Pacific north of Canada.

I’ve been thinking about global warming of late, wondering how many record setting heat waves we’ll be enduring over the next decade. I’ve also been thinking about resistance to the concept of anthropogenic global warming (AGW). I suppose some people are just born skeptical, but it seems to be more than that.

Of course, employees of coal, oil, natural gas, power, and car companies have a vested interest in disbelief. As Sinclair Lewis once wrote, “It’s hard to convince a man of something if his salary depends on not being convinced of that thing.” Beyond sheer economic self-interest or profit motivated mendacity, there is a political divide. Global warming is “liberal.” I’d contend that geophysics is beyond politics, even though individual scientists have political beliefs. The whole structure of science is bent on correcting factual error and refining our understanding of the natural world. Nevertheless, it’s those lefty environmentalists who are yammering about it, so it must be wrong.

Some observers have noted that climate change has another political facet – the negation of conservative theories about the balance of the individual and the community. Dealing with climate change requires cooperative action and strong government intervention. The corporate fossil-fuel promoters won’t give up revenue voluntarily.

It’s frightening, too. It promises extreme weather, crop failures, submerged coastlines…cue the four horsemen.

There’s a deeper resistance, though, and it involves guilt and responsibility. If I accept the concept that human activity is causing a dangerous change in the climate, then I bear guilt. Every time I put the key in the ignition or hit the thermostat I am committing a little crime. Every day I do my bit part in the grand terracide of modern fossil-fueled life. When I get on an airplane, hell, it’s a gun to some island kid’s head. Who wants to think of themselves that way? Sure, in a way we are bounded by our infrastructure and the expectations of society. But still, we have some options. This is the responsibility part, because with knowledge comes responsibility. If you know you are culpable then basic ethics requires you to act. In this case, acting means going against the current of our society, dealing with change and inconvenience, and creating a new lifestyle. Dissonance and inconvenience are not hot tickets in our culture. Personal change, although celebrated in a thousand books, is more popular in print than in fact.

The biggest obstacle to people dealing with AGW is their desire to feel good about themselves and just get on with life. Especially as getting on with life has become more difficult of late. I get the feeling that a lot of people realize that the oil companies are bullshitting us about it, for obvious reasons. There’s still that emotional hurdle, though.

As always with humans, it’s a marketing problem. Make the economic opportunity pitch? Make it a sport? People love the human drama of athletic competition*, so why not carbon competition? There are a thousand ideas, but downplaying the guilt and the looming disaster is a start. It seems counterintuitive, but that’s us.

*Name that TV show



Judicial Theory, Judicial Practice

I have been reading about the recent Supreme Court decision, McDonald vs. City of Chicago, striking down Chicago’s ban on the private possession of handguns. What interests me about this decision is not so much the subject itself as the way it illuminates the lack of a consistent judicial theory among the court majority.

Theoretically, this is a state's rights court. The majority claim to want the minimum of federal interference in the rights of states to chart their own legislative and judicial courses. Agree with it or disagree with it, McDonald is yet another extension of federal jurisdiction. Of course, the court pitched out states rights in favor of political interest with the Bush vs. Gore decision, but this is not an aberration – it’s a trend.

There is another odd contradiction here. The majority opinion in this supposed state’s rights court discussed with approval the so-called “privileges or immunities” clause of the 14^th Amendment.  That clause reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;” The clause was written specifically to protect newly freed slaves from racist laws in southern states. Back in 1873 the Supreme Court invalidated this clause in what are known as the Slaughter-House cases, and did so on a strong state’s rights basis. While the present court didn’t actually overturn the 1873 decision, it showed a decided interest in the revival of the privileges or immunities clause.

David Gans, in an article on the Scotusblog, notes that Justice Alito promotes a “robust” interpretation of the due process clause of the 14^th Amendment as an alternative to a revival of the privileges or immunities clause. (“;nor shall any State deprive any person of life, liberty, or property without due process of law;”) Wait a sec. The use of the due process clause has caused much clamor in conservative circles, as progressive judges have used it as just such an end run around Slaughter-House to advance civil liberties cases. Conservatives tend to view this practice as legal gymnastics in the service of judicial activism. Apparently it isn’t judicial activism if the NRA approves of it.

Also, theoretically, this is an originalist court. They claim to be, as Chief Justice Roberts expressed it, umpires calling balls and strikes, looking back to the original intent of the framers of the constitution. Originalists try to decipher the meaning of words to the framers in their time and attempt to determine the mindset of those men at that time. I (and many constitutional scholars) think this position is a crock for a variety of reasons, but it is the majority opinion in this court.

Even so, they are inserting an imaginary "A musket over the fireplace being necessary for farmhouse defense" clause in place of the actual "A well regulated militia being necessary for the security of a free state" clause. The majority opinion in McDonald, as in the Heller decision overturning Washington D.C.’s handgun ban, also cited the popularity of handguns as the self defense weapon of choice for modern Americans. With the handgun popularity issue, these so-called originalists are arguing from a position of modern day utility.

An originalist would recognize the militia clause as explaining the framers' intent. The framers of the constitution still held the romantic notion that yeoman farmers were capable of picking up muskets and defeating a professional army. George Washington knew better and relied on the Continental line troops, but the Jeffersonians had a utopian agrarian vision. (Which cost them the burning of D.C. in the War of 1812) The framers offered citizens a collective right to "bear arms" (a military term at that time) in order to defend the state, not themselves. We do, in fact have a well regulated militia, the National Guard, but this pseudo-originalist court wouldn't recognize that. Contrast this with many state constitutions (such as ours in Vermont) that actually specify personal self defense (Article 16) as a reason for possessing arms.

Whether you agree with the decision or not, it presents a court majority that has functional, though unacknowledged, political theories, but only pays lip service to a consistent judicial theory. It touts states rights when that suits its purposes, and resorts to federal authority when that suits. Originalism works for them when striking down progressive legislation, but takes a back seat when modern conservative opinion disagrees. 

Wait Just a Goddamned Minute

I have two issues under that heading, one big and national, one small and local.

First, the national issue, under the sub-heading of “Confirming your distrust of BP,” or perhaps, “Start trembling with rage.” It involved the statements of Kindra Arnesen, the wife of a Louisiana shrimp fisherman. For some unknown reason, probably a misguided attempt at PR, BP gave Ms. Arnesen complete access to their cleanup operations, including staff meetings. She was, as she says in this video “a fly on the wall.” What she heard and saw confirms our worst suspicions about the unstated attitude of BP towards the disaster. This includes BP officials emphasizing cost cutting, before the spill is even under control. It includes the practice of Potemkin cleanup, using a phrase that I hope will become a national watchword: “Ponies and balloons.” What it means is that whenever a government official is about to show up, BP deploys all the cleanup resources available. When the official leaves, 75% of the equipment and personnel leave as well. Arnesen also mentions BP restricting the use of respirators among its cleanup workers, despite widespread evidence of illness among people working on and downwind of the spill. She also addresses new illnesses among the residents of coastal Louisiana, including her own children. She paints a picture of a corporation that doesn’t give a damn about anything but its own bottom line and state and federal government officials willing to be bullied and fooled. If you had any doubt that major corporations run the show, cease doubting. And start working for campaign finance reform.

The second issue came to me courtesy of the flyer for the Vermont Mozart Festival. The Vermont Legislature, in its desperate search for revenue, passed a bill that includes a 6% sales tax on tickets to musical events put on by non-profits such as the VMF. I know we have a deficit, but wait just a goddamned minute. They aren’t making any money. Tickets only account for 40% of their revenue, the rest being sponsorships and donations. The last thing organizations like VMF need is in times like these is downward pressure on their ticket prices. Next time you talk to your favorite Vermont legislator, you might mention this in passing.