There’s something to be written about apex courts occasionally letting their legal reasoning be shaped by fear of a hypothetical/extreme abuse by the other branches of state. You can see something of this in the U.K. in the Miller II case, where the Supreme Court partly justified its novel review of an exercise of the prerogative to prorogue Parliament, which was for centuries judged as non justiciable, based on its fear of a hypothetical government going rogue and trying to govern without summoning Parliament.
It does not take much imagination to see how damaging this disposition could be to the working of a mixed government if it was widely adopted.
Say, if the legislature insisted that judicial salaries had to be reviewed every year to help make sure they weren’t lapsing into laziness or complacency in resolving cases; or that civil servants shouldn’t be given any robust employment protections because there is a risk they might go off-piste and try and frustrate government policies they personally dislike….
On the one hand you say “no wrong without a remedy” is aspirational. On the other hand you criticize it, notwithstanding the Supreme Court precedents that embrace it. You can’t have it both ways. If it’s aspirational, you should be looking for ways to expand not contract it. Figure it out.
I see no contradiction or even tension between those. Our law has an aspect of fit as well as justification. And that aspiration - if it is one; I said “at most” - is simply not one that our system has pursued to the limits of its logic.
Most rights discourse in liberalism is confused, ill considered. Some rights are personal and thus inalienable, can't be bought or sold or defeased. Other rights are in rem and thus alienable, these may be vested or executory. Those are however private rights. As to public rights, some are legal, others political. I do think "freedom from" versus "right to" is useful shorthand to distinguish liberties from state power as compared to access to various goods, whether public or private. I wrote a fairly detailed piece about Hohfeld to distinguish the varieties of rights liberalism touts like a drunkard unaware its about to get in a bar fight with a gent holding a knife.
Having listened to the oral arguments on injunctive relief regarding birthright citizenship against an executive order that seems unconstitutional, I found this piece philosophical and wistful, but not engaging on the questions raised during the oral arguments.
What distinguishes this case - for litigation would necessarily get to SCOTUS owing to a fundamental bedrock of citizenship being wiped clean by assertion of exclusive Executve authority - was the set of questions from the practical side: where in the Inited States one would be born could decide citizenship. That seems both poignant and chaotic, the result of contradictory nonsense given the concept and, clearly, all but guaranteeing panics.
Both practical and core constitutional issues would seem to make this case one for which the remedy of a nationwide ban ordered by a lower Federal Court a most definitive remedy pending a SCOTUS decision to overturn a precedent from 1898, one that likely covers millions of current citizens or theirs next generation descendants.
Just as slaves who breathe the air of England are free, so also ought those born on US soil enjoy the rights, duties (draft)(taxes) and opportunities of citizenship. The great power of the USA is its capacity to attract hard working intelligent ambitious people. Squaring off against a power 4 times as populous means the USA needs as many smart hard working people as possible.
For legal rights, there is a court remedy. For political rights, there may well be no legal, in other words court, remedy. E.g. the remedy for most taxing decisions is political, not legal. In contrast, takings (justly compensated expropriations) enjoy legal remedy. Political and legal remedies in the US Federal Constitution are structured with various doctrines, notably justiciability, standing, mootness, and ripeness. As I recall these have parallels in German constitutional law. In French law, complaints may or may not be recevable; there I was working on tax law rather than constitutional law, though my impression is the French doctrine may subsume jurisdictional, constitutional, and prudential considerations, though I would double check that opinion as I may be mistaken and the concepts are likely finer, though that is the starting point for comparisons.
There’s nothing objectionable here— but it might be worth noting that one part of the problem is the oddity that being in the country illegally is a *civil* offense, rather than a criminal one. That fact isn’t exactly mentioned in law school, and almost everyone I know was shocked by it because we’re all shottily getting up to speed on immigration law in live time. On the one hand, there’s expediency to it being a civil offense — in theory, if it’s a civil problem, it seems like a public right therefore no right to an Art. III court. On the other, if it’s criminal (the way lots of people assume) then there *is* a free state sponsored attorney, and the chance to look at the constitutionality of every single removal — but that’s slow and costly (costlier, even). Plus, if it’s a public right, with some sort of due process protection grafted on, then even after you go through the administrative process, you get to appeal to Art. III…
I’m open to being wrong about any or all of the above, but that’s my back of the envelope math.
For there to be crime, there must be injury, to the public as well as to an individual. There must also be criminal intention. We may rightly suspect the wanderer, we might even search him without warrant for fear of weapons. But they are not criminals since there is no injury and likely benefit from their presence: all these people are potential patriots, potential employees, potential criminals. And are spies not criminals? And where do we get our spies from?
Surely an illegal alien’s presence harms the common good (ie the public). Sure, the aliens are potential patriots and good citizens, but the law facilitates processes to its good ends, too. Even God coordinates the angels through law.
More to the point, admittedly I’m thinking out loud — but, if all laws have to be aimed at the common good, civil or criminal, and the distinction the criminal law makes is the degree of harm to the public, then does that mean that civil fines are only those harms that hurt the common good, but have the government as the main “victim”? Is that the distinction you’re trying to make?
Criminal laws are distinct from civil laws in that 1. There is an injury 2. There is an intention to injure. 3. The injury is one that not only injures some private person but also the entire public body. What private tort exists in the case of the mere presence of an alien in violation of immigration laws? Probably none! Regarding prudence: how we treat others is how they treat us. It is prudent for one country to treat the citizens of another country humanely: otherwise ships might crash into bridges.
Regarding faith: I am reluctant to quote scriptures since I am likely syncretic however the book of Mathyou 25:35 says “I was a stranger, and ye took me in”.
This world is a testing ground. You may make it into a hell or a heaven. The choice is yours: I suspect the test is graded at the end.
Well now, respectfully, you’ve lost me completely. Is your conclusion that immigration laws are per se unjust then?
To start, yes of course, in the West “collective guilt” has pretty much been done away with — you cannot just ex ante declare that all people born from X bloodline are guilty of Y crime. That’s fine. That’s not what immigration laws do — they, like lots of laws, classify people according to their actions. This is no different than a statute that says “people under 21 may not drink alcohol;” or “people guilty of X crime must register as sex offenders.” (Status following behavior.) In this instance, “people who cross into the United States without going through one of the myriad legal processes are, essentially, trespassers to the State.” Dealing with children in this realm is thorny, but can be put aside as a separate issue.
Second, all laws must be for the common good. That’s a part of the definition of law — that we disagree about its requirements doesn’t defeat that, it merely means a law cannot promote the private goods of one sect of citizens over the other. It has to promote the health of society, generally. That we cannot agree on the common good’s requirements for a given society is the entire conceit of democracy.
Third, that’s not an entirely accurate description of criminal law. What you need, at least, is a culpable mental state and some guilty act — we punish attempted murder on par with murder because we do not live in a consequentialist society. So, harm is not the lodestar for criminality. Clearly, entering a new country and knowingly skirting the legal migration processes involves a guilty act and minimum a negligent mental state. Given the amount of notice people are on that one cannot just *go* to other countries permanently, it is hardly believable that someone staying here illegally is doing so on accident.
I'm just explaining the evolution of law, was reluctant to even mention religion. Most people have a superficial or even simplistic understanding of law, which is usually ok, people should be living their lives, not splitting hairs. You raise other strict liability offenses: offenses are not crimes. If there is strict liability (mens rea) then it is not crime. The res publica is not subject to trespass because it is subject to police power.
Law abandoned status as a determinant with the revolutions of the 1700s: no more collective guilt for all members of a given tribe/nation/clan for example (Sippenhaft). There are many other examples of the end of status: Noble titles fell away or became merely symbolic, slavery was abolished. Criminality requires intent, mens rea, as well as actus reus, a criminal act. It would, I think, be difficult at best to impute criminal intention to for example infant children illegally on U.S. territory. Oddly, I somehow don’t feel harmed by the presence of small children, even those who do not speak English. If anything I fear for them. I do not think my fearing for others is a harm to myself.
Human laws ought aim for the common good though that is not always the case nor do humans always agree what be the common good. I do not inveigh on divine law or divine organization since, and this may surprise, I am neither omniscient nor omnipresent.
There’s something to be written about apex courts occasionally letting their legal reasoning be shaped by fear of a hypothetical/extreme abuse by the other branches of state. You can see something of this in the U.K. in the Miller II case, where the Supreme Court partly justified its novel review of an exercise of the prerogative to prorogue Parliament, which was for centuries judged as non justiciable, based on its fear of a hypothetical government going rogue and trying to govern without summoning Parliament.
It does not take much imagination to see how damaging this disposition could be to the working of a mixed government if it was widely adopted.
Say, if the legislature insisted that judicial salaries had to be reviewed every year to help make sure they weren’t lapsing into laziness or complacency in resolving cases; or that civil servants shouldn’t be given any robust employment protections because there is a risk they might go off-piste and try and frustrate government policies they personally dislike….
On the one hand you say “no wrong without a remedy” is aspirational. On the other hand you criticize it, notwithstanding the Supreme Court precedents that embrace it. You can’t have it both ways. If it’s aspirational, you should be looking for ways to expand not contract it. Figure it out.
I see no contradiction or even tension between those. Our law has an aspect of fit as well as justification. And that aspiration - if it is one; I said “at most” - is simply not one that our system has pursued to the limits of its logic.
Most rights discourse in liberalism is confused, ill considered. Some rights are personal and thus inalienable, can't be bought or sold or defeased. Other rights are in rem and thus alienable, these may be vested or executory. Those are however private rights. As to public rights, some are legal, others political. I do think "freedom from" versus "right to" is useful shorthand to distinguish liberties from state power as compared to access to various goods, whether public or private. I wrote a fairly detailed piece about Hohfeld to distinguish the varieties of rights liberalism touts like a drunkard unaware its about to get in a bar fight with a gent holding a knife.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1424691
Having listened to the oral arguments on injunctive relief regarding birthright citizenship against an executive order that seems unconstitutional, I found this piece philosophical and wistful, but not engaging on the questions raised during the oral arguments.
What distinguishes this case - for litigation would necessarily get to SCOTUS owing to a fundamental bedrock of citizenship being wiped clean by assertion of exclusive Executve authority - was the set of questions from the practical side: where in the Inited States one would be born could decide citizenship. That seems both poignant and chaotic, the result of contradictory nonsense given the concept and, clearly, all but guaranteeing panics.
Both practical and core constitutional issues would seem to make this case one for which the remedy of a nationwide ban ordered by a lower Federal Court a most definitive remedy pending a SCOTUS decision to overturn a precedent from 1898, one that likely covers millions of current citizens or theirs next generation descendants.
The argument was not about the merits issue. It was about the availability of nationwide injunctions, which the post addresses.
Just as slaves who breathe the air of England are free, so also ought those born on US soil enjoy the rights, duties (draft)(taxes) and opportunities of citizenship. The great power of the USA is its capacity to attract hard working intelligent ambitious people. Squaring off against a power 4 times as populous means the USA needs as many smart hard working people as possible.
For legal rights, there is a court remedy. For political rights, there may well be no legal, in other words court, remedy. E.g. the remedy for most taxing decisions is political, not legal. In contrast, takings (justly compensated expropriations) enjoy legal remedy. Political and legal remedies in the US Federal Constitution are structured with various doctrines, notably justiciability, standing, mootness, and ripeness. As I recall these have parallels in German constitutional law. In French law, complaints may or may not be recevable; there I was working on tax law rather than constitutional law, though my impression is the French doctrine may subsume jurisdictional, constitutional, and prudential considerations, though I would double check that opinion as I may be mistaken and the concepts are likely finer, though that is the starting point for comparisons.
There’s nothing objectionable here— but it might be worth noting that one part of the problem is the oddity that being in the country illegally is a *civil* offense, rather than a criminal one. That fact isn’t exactly mentioned in law school, and almost everyone I know was shocked by it because we’re all shottily getting up to speed on immigration law in live time. On the one hand, there’s expediency to it being a civil offense — in theory, if it’s a civil problem, it seems like a public right therefore no right to an Art. III court. On the other, if it’s criminal (the way lots of people assume) then there *is* a free state sponsored attorney, and the chance to look at the constitutionality of every single removal — but that’s slow and costly (costlier, even). Plus, if it’s a public right, with some sort of due process protection grafted on, then even after you go through the administrative process, you get to appeal to Art. III…
I’m open to being wrong about any or all of the above, but that’s my back of the envelope math.
For there to be crime, there must be injury, to the public as well as to an individual. There must also be criminal intention. We may rightly suspect the wanderer, we might even search him without warrant for fear of weapons. But they are not criminals since there is no injury and likely benefit from their presence: all these people are potential patriots, potential employees, potential criminals. And are spies not criminals? And where do we get our spies from?
Surely an illegal alien’s presence harms the common good (ie the public). Sure, the aliens are potential patriots and good citizens, but the law facilitates processes to its good ends, too. Even God coordinates the angels through law.
More to the point, admittedly I’m thinking out loud — but, if all laws have to be aimed at the common good, civil or criminal, and the distinction the criminal law makes is the degree of harm to the public, then does that mean that civil fines are only those harms that hurt the common good, but have the government as the main “victim”? Is that the distinction you’re trying to make?
Criminal laws are distinct from civil laws in that 1. There is an injury 2. There is an intention to injure. 3. The injury is one that not only injures some private person but also the entire public body. What private tort exists in the case of the mere presence of an alien in violation of immigration laws? Probably none! Regarding prudence: how we treat others is how they treat us. It is prudent for one country to treat the citizens of another country humanely: otherwise ships might crash into bridges.
Regarding faith: I am reluctant to quote scriptures since I am likely syncretic however the book of Mathyou 25:35 says “I was a stranger, and ye took me in”.
This world is a testing ground. You may make it into a hell or a heaven. The choice is yours: I suspect the test is graded at the end.
Well now, respectfully, you’ve lost me completely. Is your conclusion that immigration laws are per se unjust then?
To start, yes of course, in the West “collective guilt” has pretty much been done away with — you cannot just ex ante declare that all people born from X bloodline are guilty of Y crime. That’s fine. That’s not what immigration laws do — they, like lots of laws, classify people according to their actions. This is no different than a statute that says “people under 21 may not drink alcohol;” or “people guilty of X crime must register as sex offenders.” (Status following behavior.) In this instance, “people who cross into the United States without going through one of the myriad legal processes are, essentially, trespassers to the State.” Dealing with children in this realm is thorny, but can be put aside as a separate issue.
Second, all laws must be for the common good. That’s a part of the definition of law — that we disagree about its requirements doesn’t defeat that, it merely means a law cannot promote the private goods of one sect of citizens over the other. It has to promote the health of society, generally. That we cannot agree on the common good’s requirements for a given society is the entire conceit of democracy.
Third, that’s not an entirely accurate description of criminal law. What you need, at least, is a culpable mental state and some guilty act — we punish attempted murder on par with murder because we do not live in a consequentialist society. So, harm is not the lodestar for criminality. Clearly, entering a new country and knowingly skirting the legal migration processes involves a guilty act and minimum a negligent mental state. Given the amount of notice people are on that one cannot just *go* to other countries permanently, it is hardly believable that someone staying here illegally is doing so on accident.
I'm just explaining the evolution of law, was reluctant to even mention religion. Most people have a superficial or even simplistic understanding of law, which is usually ok, people should be living their lives, not splitting hairs. You raise other strict liability offenses: offenses are not crimes. If there is strict liability (mens rea) then it is not crime. The res publica is not subject to trespass because it is subject to police power.
Law abandoned status as a determinant with the revolutions of the 1700s: no more collective guilt for all members of a given tribe/nation/clan for example (Sippenhaft). There are many other examples of the end of status: Noble titles fell away or became merely symbolic, slavery was abolished. Criminality requires intent, mens rea, as well as actus reus, a criminal act. It would, I think, be difficult at best to impute criminal intention to for example infant children illegally on U.S. territory. Oddly, I somehow don’t feel harmed by the presence of small children, even those who do not speak English. If anything I fear for them. I do not think my fearing for others is a harm to myself.
Human laws ought aim for the common good though that is not always the case nor do humans always agree what be the common good. I do not inveigh on divine law or divine organization since, and this may surprise, I am neither omniscient nor omnipresent.