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View Diary: Immigrants Like Me (118 comments)

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  •  On the rule of law (0+ / 0-)

    As my daddy used to say, "when you assume, you make an ass out of you and me."  I am amazed and amused as your haughtiness and presumptuousness:

    Like all nativists, you completely misunderstand what "rule of law" means.  It does not just mean punishment for lawbreakers.  Justice and mercy must coexist in order for a legal system to function properly.

    But I've had this kind of debate 100 times, and I've already learned that guys like you just plain don't understand that at all.  You think that mercy is weakness.  You have no idea what discretion means.  You just want to inflict pain and suffering, cloaking punitive desires in a false flag of law.

    Do you add the Founding Fathers in your list of "nativists?"  The Framers envisioned judges as dutiful interpreters of the law, as opposed to its (self-appointed) authors.  Alexander Hamilton explained that to "avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case before them."  The Federalist No. 78.  Blackstone observed that a judge’s duty to follow precedent was derived from the nature of the judicial power itself: a judge is "sworn to determine, not according to his own judgments, but according to the known laws."  1 Blackstone, Commentaries on the Laws of England 69 (1765).  A century earlier, Lord Coke wrote, "[i]t is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion."  1 E. Coke, Institutes of the Laws of England 51 (1642).  As in all but the most exotic cases, the law has been clearly established, the judge is expected to be little more than an administrator, playing what Professor Llewellyn called "the game of matching cases."  Karl N. Llewellyn, The Bramble Bush 49 (1960).

    If the rule of law is to mean anything, it is not the place of the judge to say, "The law says that you have to leave, but I'm going to let you stay, anyway" to Defendant A, but not to Defendant B.  If you permit that, you replace the rule of law with the rule of judges.  Accordingly, there are limits to judicial discretion.

    My attitude is that we should be aggressively creating the circumstances that would enable illegal immigrants to return to their families.  Reliable guest-worker programs, coupled with a repudiation of NAFTA, would go a long way toward curing the problem in a humane way.  Is that prescription really that cold?

    Realize that the largest problem in Central and South America is wealth inequality; Venezuela has a GINI score around 50, and Mexico's is in the staggeringly high 60s.  How do you fix that, when you eschew intervention in other countries' internal affairs?

    [I'll address your other points presently]

    •  As I said, you don't understand. (1+ / 0-)
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      Sentido

      Quoting Blackstone and Coke does not disguise the obvious fact that you completely fail to understand what I'm talking about.

      Although I must admit, it reminds me of some papers I bullshitted my way through in college!

      Oh you're so wrong to think that my talk about mercy and discretion boils down to a "judge" refusing to throw the book at someone.

      I've been thinking about this, and I think your root error is the false belief that it is trivial for "professionals" to determine what the law is in a particular case. But in reality it is almost never black-and-white. In a deportation case, for example, there is nearly always some doubt whether the person (1) is who is claimed to be, (2) actually is an alien, and (3) actually is deportable.  Tens of thousands of people get deported every year where the government never actually proved those core facts, due to lack of legal counsel.

      In addition, even if a person is "deportable," he may well have many different kinds of relief from deportation available, each of which is very complex and problematic.

      In short, you REALLY don't know what you're talking about!

      And are you aware that these days the U.S. Government is regularly deporting hundreds or thousands of U.S. citizen children and also quite a few U.S. citizen adults?? YOU could be next!

      Nobody on the planet believes in the rule of law more than I do. But no more pearls for you tonight!

      •  How do we solve the problem? (0+ / 0-)

        I've been thinking about this, and I think your root error is the false belief that it is trivial for "professionals" to determine what the law is in a particular case.

        It would naturally depend on the case.  If the violation is a technical one, then salient facts can probably be stipulated to.  But in the case of a deportation proceeding, I can see where it might be problematic.

        But in reality it is almost never black-and-white. In a deportation case, for example, there is nearly always some doubt whether the person (1) is who is claimed to be, (2) actually is an alien, and (3) actually is deportable.  Tens of thousands of people get deported every year where the government never actually proved those core facts, due to lack of legal counsel.

        How do we solve these problems efficiently?  

        If we took a DNA sample of every alien eligible to work in the country and put it into a searchable data base (requiring it as a condition of entry would not be a constitutional violation), it seems to me that that would solve about 95% of the mis-identification problems.  If the suspect is in the database and hasn't overstayed his visa, he's clear.  If he is the child of a citizen, there is a pretty fair chance that he has living relatives.

        If this eliminates 90% of the docket, the remaining 10% can be dealt with both promptly and efficiently. There are always going to be problems in any system, but at least, they won't be compounded by unconscionable delays.

        If we can't have a rational discussion as to how we should fix the system without it being poisoned by accusations of "nativism," "heartlessness," or any other ad hominem argument customarily invoked in these discussions, dialogue probably isn't worth our time.    

           

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