The New Form of Compromise

   If the last two elections, 2010 and 2012, have shown anything, it is that the citizens of this republic are divided more than ever about basic political ends.  We now have, yet again, a divided government: the Presidency and Senate in the hands of one party, and the House of Representatives in the hands of the other.  This situation means one of two things: either there will be no significant legislation passed for at least the next two years, or whatever legislation is passed will represent a compromise in the goals of the two major parties in question.  Obviously the political reality is that we will have some of both scenarios: proposals for which no compromise can be found will be blocked from passage, and only those that are amenable to compromise will pass.

   OK, you may say; so what is different?  Divided government is often the norm in the United States, and legislation was enacted anyway.  What is different?  The difference is the degree of polarization, and that will require a different form of compromise.  In the past, compromise was often along lines such as these: the President and his party proposes X, which the other party opposes, and is in a position to block.  A compromise would often be worked out along the lines of this: Proposal X is enacted, but is less sweeping than the President desires, or doesn't cover as many situations, for example.  In other words, the classic "half a loaf." This has been the most common form of compromise in the past, because both political parties were "big tent" coalitions; the Republican party would consist of libertarian, Goldwater type conservatives, social conservatives, neo-cons, and big business moderates.  The Democrat party was equally divided, including southern conservative populists, trade union advocates, civil rights organizations, mid-west progressive populists, and cold war liberals.  With such diverse memberships, half a loaf type compromise was a necessary tactic.

  Today the party memberships are far more polarized.  Commentators decry the lack of Republican moderates, of the Rockefeller type Republicans, but the blue-dog Democrats are an equally endangered breed, and the cold-war liberal--one who believes in progressive domestic policy and an almost neo-con foreign policy--are almost equally endangered.  More so than at any time in the 20th Century, the American political parties represent deep ideological differences as much as they do parochial interest groups.  Tweaking legislative proposals on fine details will not satisfy the powerful fire-breathers of either party.  The nature of political bargaining will have to change.

   I think it will have to work along lines such as this:  You want a policy which is opposed by my party, so if I am to go along with it, you will have to give me something that my party wants and yours opposes.  How would that work in practice?  Let's look at one of the most famous--and most successful--of such compromises: the debt legislation of Gaius Julius Caesar, enacted just before his death.  Rome was hobbled by a serious problem of debt in the middle classes, and there was considerable agitation for what was called a general abolition of debt in which the state would require the forgiveness of any debt.  Naturally, this alarmed those who had lent money out, since such legislation would, in turn, impoverish them.  Now, it has to be noted that this was not a proposal directed to the benefit of the lower classes of Roman society; they may have been poor, but they were rarely, if ever, in debt, since no one would loan anything to them in the first place; it was a middle-class issue.  Caesar saw that such a general abolition of debt would not work, since no one would ever loan money again even for worthwhile reasons, yet the current debt load was crushing.  Some solution had to be found.

   Here is what he did: He affirmed the validity of the principal of all debts; the money would have to be repaid.  However, compound interest was forbidden--as it technically always had been--and would be replaced in all cases by simple interest.  All interest paid to that point counted against the principal.  This meant, for example, that if you borrowed $10,000 at 10%, instead of an annual APR, you would only owe, in total, $11,000.  If by the time the legislation was enacted you had paid $4000, your balance would be now only $6000, plus the original 10%.  This compromise satisfied no one completely, and offended no one completely.  The burden was lowered, but the validity of the debt itself was upheld.  No one got everything they wanted, but the economic structure was kept intact.

  A modern example might look like this: the President wants the tax rates for the "middle class" lowered permanently, and the tax rates for the upper classes raised, permanently.  Republicans want both lowered permanently.   A compromise might work along these lines: both would be lowered for another 10 years, but still linked.  The President has to swallow the lowered rates for the wealthy, and the Republicans have to swallow the fact that the issue will have to be fought again, with no guarantee that they will be in a position to force the issue again.  It will work out like this: for a compromise the work, you will have to offend the fire-breathers in your base.  Any good legislation will mean that the radicals on both sides scream "rape!"

  
  

Nature and Source of Rights

  

  It is a normal part of political discourse to speak of rights to this or that, or that some act is a violation of one’s rights.  Like most terms used in normal discount, however, this is one of those words that can mean something different to each speaker.  There are several questions that deserve to be clarified: what are rights, what is their source, and what is the proper role of government vis-à-vis what we call rights?

   In the United States we often begin such discussions with reference to the first ten amendments to our Constitution, known as the Bill of Rights.  Of course others have been added, but these are the best known.  They are “known,” I suppose, but extremely misunderstood at the same time.  For example, the First Amendment reads as follows:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances.”  The government cannot create an official religion nor restrict its free practice.  What is often overlooked is the nature of the language used in writing the amendment.

   To see that more clearly, look at the language involving the freedom of the press.  The Constitution says that Congress, and by extension any other branch of government, may not abridge its freedom.  One is free to write what one chooses, but what is lacking?  It is that the government, while not having to power to censor what is written, has no affirmative obligation to provide any outlet for opinions or news.  It has been said, quite appropriately, that the Constitution requires freedom of the press if you happen to own a press.   No one, either public or private, has even the slightest obligation under the Constitution to provide any citizen with an outlet to express his opinion.  If I disagree with an editorial opinion in my local paper, I am perfectly free to write a letter expressing my disagreement.  No official at any level may censor my letter or prevent me from mailing it.  The state may take no action of any kind.

   On the other hand, the newspaper publisher has no legal obligation to publish my letter in any form.  The government cannot compel him to publish it in the name of fairness or diversity; he may reject the letter on whatever arbitrary grounds he may choose.  True, it may not be good business sense for a publisher to refuse to print letters with which he disagrees; it might really hurt his paper’s circulation.  That is, however, his decision, not mine, and not the government’s.  It is the same with freedom of religion.  I am free to worship whatever god or gods I may choose, or not to worship any deity at all.  The government simply has no role to play whatsoever.

  There is one possible exception to this rule in the Bill of Rights, and that concerns to right to counsel in any trial in which I am a defendant.  It is not clear that the original intent was that the state could be compelled to provide counsel, merely that the state could not prevent one from obtaining counsel if one wished.  The Supreme Court has held otherwise, and for good reason.  I can only be a defendant in a criminal trial because the government has decided to charge me with a crime.  Since the government has put me in this jeopardy, it must be willing to provide counsel if I cannot afford one.  However, I have no right to publicly paid counsel if I am the either the respondent or the plaintiff in a civil case, or if I wish legal advice on personal or business matters.  I am only entitled if I am the subject of government action.

   Rights that are a result of Court decisions take a similarly negative tone.  Many people erroneously think that, as a result of the decision Roe v. Wade, the Supreme Court established a right to an abortion. It did nothing of the sort.  What it said is that the Texas law improperly restricted the plaintiff’s right of privacy, in that the matter of terminating the pregnancy was, in this case, purely between her and her doctor.[1]  If she wished, she was free to terminate the pregnancy by procuring an abortion.  The state was not permitted to interfere in any way.  Note, however, that the Court did not establish the right to an abortion, in that it did not state that the Federal Government, the State of Texas, or any local authority had any obligation to facilitate the action in any manner, other than to step out of the way.  No agency had a Constitutionalobligation to provide an abortion, or provide funding for a private one.  Just like the aphorism about the freedom of the press only applying to those who own one, the only right affirmed is the right to procure one, and nothing else.  Even if a legislature makes a decision to fund abortions for those who cannot afford them, that is a legislative, not a Constitutional, decision.  If at a later date the legislature decides to end such funding, no constitutional rights have been violated in the process.  In short, rights are not what the government is obliged to do for the citizen; they are what the government is forbidden to do to him.

   We do hear a lot of discussion about things like a “right to health care” or a “right to housing.”  Such talk is different from traditional statements about rights because they assert affirmative obligations on the part of the government.  In the face of such claims, we must ask two questions.  Who is obligated to act by such a right, and what is the source of that right?  To begin with the first question, we must remember that collective entities are really no more than descriptions or categories of totally discrete individuals; they do not exist.  How can something that does not really exist, outside of rhetoric, possess responsibilities?  If we have an affirmative right to X, then someone is responsible for providing X, and something that does not exist cannot do so.

   If “X” in this case is health care, then if I assert that I have a right to health care, then I am asserting that the individuals described in that category have the obligation to provide it, or provide the funds to pay for it.  The government has no money except what it takes from the citizens in taxes, so if “it” is going to pay for health care, it has only three ways in which to do so.  The first would be to confiscate the necessary equipment, supplies and labor from those who provide them, but this would be a violation of the Fifth Amendment, which states “nor shall private property be taken for public use, without just compensation.”  It could raise taxes to pay for it, but that would be no more than demanding that the taxpayers pay for it, which is precisely what they would be doing, each individual one of them.  Lastly, it could stop funding some existing program in order to pay for the new one, but that only postpones the issue of whether or not one taxpayer has an obligation to pay for a service for a second taxpayer.

   Before returning to this point, we need to inquire a little further into the source of such rights, those that are not found in the Constitution, if they exist.  First, if the people are the source of law, they are the source of rights.  This will not be a popular position to take once the consequences are admitted, however, either for those on the left or on the right.  Those on the right often point to the words of the Declaration of Independence, that our rights are “endowed by our Creator.”  Politicians on the left have spoken of natural law as the source of our rights, or of the march of history.  In either case government is only recognizing, or should recognize, rights that properly belong to man as man.  They transcend government.  Admittedly, it is likely that the founders thought along the former lines; the language of the Bill of Rights certainly seems to treat rights as if they transcend whatever government is in power.  Either way, to the true believers of either camp, the idea that rights and law come solely from the people leads to the suspicion that it would be all to easy to abolish our rights if they were no more transcendent that laws governing speed limits on interstate highways.

   In reality, however, what assurance do we ever have that a society will remain free, not lapse into some form of oppression?  We have certainly seen religious states that are free, and religious states that are oppressive.  There are free secular states, and oppressive ones.  Did the belief that our creator endowed us with these rights prevent the passage of Jim Crow laws?  Did the belief in the natural rights of man prevent freedom from degenerating into the Reign of Terror?  Did the belief in the rights of working men and women prevent the establishment of the Gulag and Stalin’s NKVD? These arguments seem to have had no impact upon our ability or willingness to step on our fellow man.

  No, they have not, and they can lead to even worse.  There are two types of oppressive societies.  The first is the expression of pure, simple greed for power or money.  Being the top dog in an autocratic society simply makes it easier to get the power or money you want.  Religious moral beliefs may seem to be elevating, but they have never seemed to prevent this type of oppression.  The second type is far more pernicious, because it actually comes about as a result of moral principles.  It arises when we see those who oppose us, not as being fellow citizens with different goals, but as our enemies who are on the wrong side of history.[2]  The worst oppression always arises when those in power see themselves as fighting on the side of the angels, and those who oppose them as agents of evil.  One can endeavor to convince an opponent, but enemies are to be crushed.

   Can “international law” serve as a source for or foundation of human or civil rights?  Before we can answer that we have to ask, “what is international law?’  Rhetorically the phrase sounds inspiring enough, but perhaps that is precisely the problem.  It is inspiring, but it is also empty.  International law is, in one sense, no more than a euphemism for the way nations have become accustomed to conduct their international business.  The term is descriptive, not prescriptive.  There is no international body that has the authority to legislate.  By its own charter, the United Nations can issue only resolutions, and only those of the Security Council are considered “binding.”  The Security Council is still not sovereign, because any one of the Five Permanent members has the right to veto an action of the Council, and there are no enforcement provisions.  Resolutions from the General Assembly are really no more than opinions, since they are not binding even in theory. 

   Treaties are supposed to be “binding” on their signatories, and our Constitution states that a properly ratified treaty is, along with the Constitution and enacted legislation, the “law of the land.”  That, however, is the point; they are only binding if they are ratified, which in our case must be by the Senate.  If not, they are no more than sheets of paper.  A proposed treaty may have the enthusiastic and popular backing of every other nation in the world, but it is not ratified by our Senate, it is no more than an expression of popular opinion.  The people, through the organs of government, remain sovereign.  Like any other law, a treaty is only a law if the people of the United States say that it is.

   Even if we grant that there are no sources of law of rights other than the citizens themselves, suppose that the people becomes seduced by the promises of “panem et circum,” and demand that the government provide a cradle to grave welfare state.  If they are the source of the law, wouldn’t that then, in fact, be a right?  I concede that point; from a legal point of view it certainly would.[3]  This is why men like Madison labored so diligently to produce a government that would prevent one group of citizens from plundering another simply for their own enrichment.  America might be fortunate in the government is obliged to do for the citizen; they are what the government is forbidden to do t that we could well have the opportunity to witness the economic collapse of the European social welfare experiment.  It is becoming clear how untenable this attempt at statism has become.  If we can delay adopting such policies ourselves until the European collapse is complete, then the voters themselves, who are generally middle of the road and tend to reject extremes of either the right or the left, might refuse to countenance such a system.  They key to this success will be to refuse to compromise on issues that would weaken our system of checks and balances in the name of “democracy.”  If we fail, then the alternative is to learn from our own economic collapse, our own misery.

                

Why, as a libertarian, I will not vote Libertarian

  I generally consider myself a libertarian with a small "l", so why do I say in this title that I am not willing to vote for the Libertarian candidate?  Doesn't this mean that I am betraying my principles in order to settle for the "lesser of two evils?"

  You could make this accusation, but only at the expense of ignoring political and constitutional realities.  In the United States 3rd parties, with the exception of the Republican party in 1860, have been political failures, and there is a reason for that.  In almost all cases, a vote for a third party means that the more objectionable candidate will win, unless there are "3rd parties" running on both the left and the right.

   Why?  There are two facts that have to be considered on this issue, and both of them are fatal to 3rd party activity, even in the long term.

   1.  The United States does not at the federal or state level have a system of proportional representation.  Congressional and Senatorial races are "winner take all" races.

   2.  Our government is not parliamentary; by design, the President is not responsible to the Congress, but to the citizen body as a whole, even if, admittedly, through the Electoral College.

   Third parties do best when the government has a system of proportional representation.  For example, in Germany the voter, in effect, casts two ballots.  The first is for his or her elected representative in the Bundestag, the lower house.  That election is winner take all.  However, he also casts a vote for the party, and some seats in the Bundestag are allotted based upon the results of this election.  That means that a party might field candidates, NONE of whom win a direct seat in the Bundestag, but can still earn some seats if they get a high enough percentage of the popular vote.

  We don't do that in the United States.  Even if the Libertarian--or any other 3rd party--runs a candidate in every Congressional district, only those candidates who actually win a majority for that district will get a seat in Congress.  The Libertarian Party could get, say, 25% of the vote across the nation and still not win even a single seat in Congress or the Senate.  Since the Libertarians will probably be splitting the vote of citizens on the center-right, that can help Democrats win more seats. 

   In Parliamentary governments, the majority party in lower house selects the chief executive, call him or her the Prime Minister, Premier, or Chancellor, whatever the title might be.  That also does not apply to the United States.  Short of impeachment for a criminal offense, the Congress has absolutely no say in who will be the Chief Executive of the United States.   Because the President is not selected by the Congress, there is no option for the kind of power-sharing coalitions that can occur in Parliamentary systems.

   I am convinced that the best hope for those who consider themselves to be libertarian is to become an active part of the Republican party, and create a power bloc to force libertarian ideals on the party.  America may be, and I think is, a center-right nation, but that is the point--center right, not conservative.  This Gallup poll shows that fact rather clearly.  We can be an influence, we can attract supporters and voters, but we have to do so intelligently, not emotionally.  .http://www.theblaze.com/stories/gallup-conservatives-outnumber-liberals-nearly-2-to-1/

A Proposal for Immigration Reform

   Most Americans will agree that our immigration law is not working, but there is no agreement on how we should change it, particularly on the issue of those who have entered the country in violation of our laws. To be able to make any meaningful change, we have to use some common sense and agree on these three points.  First, each nation has the prerogative to control immigration; there is no “right” to immigrate to another country.  Secondly, we have to be practical when we propose solutions.  It may be one thing to be legally correct, and yet another to propose something that might have sufficient popular support to be enacted.  Third, we are going to be innovative.  “Business as usual” is not going to work.

    Most proposed solutions to this issue fit one of two categories.  The first involves granting amnesty to those who are in the country illegally.  In an economic climate with large numbers of unemployed and underemployed workers, this is neither a realistic nor a moral option.   Blanket amnesty has simplyemployed, this is simply  encouraged further illegal immigration.  It is also unfair to those who have followed the law and sought immigration through the proper channels. The second approach is to insist that the government simply enforce the existing laws and deport everyone who came here without the proper paperwork.  This is even less likely to be carried out than a general amnesty.  The American people would not agree to massive involuntary deportations.  Just imagine, for a moment, the outcry when the press reports, cameras rolling, some massive sweep in some real community composed of real people, particularly when it involves childrennts are abruptly depohan fa.  It simply won’t happen.

   The third is to devise some sort of compromise which will avoid both extremes of massive deportations and total amnesty.  Every politician proposing amnesty has made the promise that THIS amnesty will be the last; in the future, we will enforce the law. We never do.   This has made many citizens skeptical about such intentions, and any compromise will have to address this perception.   We will have to send the message that we are no longer doing “business as usual.”  We should make a real distinction in law between those immigrants who have complied with our laws and those who did not.   Basic justice, a decent sense of fair play, requires that somehow we favor those who obeyed our immigration law.  I suggest that any future amnesty be offered with limits, that we create a new legal status for those who were here illegally that would differ from the normal resident alien status.  The recipients would receive a form of permanent “guest worker” status that would provide all necessary legal protections, to include the right to live and work in America, but it would be a dead end.  They would be permitted to remain in the country indefinitely, work and educate their children without the fear of deportationt would allow the dt alienren, and they would be provided all the protection of our legal system.  The difference would be that they would never be eligible for citizenship.  Those who might wish to become citizens of the United States would have to start from the beginning and apply through normal channels for a visa.    We might make an exception for those willing to serve in the military or some other form of alternative civilian status but, otherwise, citizenship—and thus the franchise—would not be an option.eek redress for abuse.and they would be provid  

   This approach would recognize that those who have shown no regard for our law should not have a role in making those laws, and that those who did should, on the other hand, be given all of the rights of any new citizen.  It would provide a humanitarian approach for those who can contribute to the economic welfare of the country, preserve the integrity of their families, and allow them a new start in life.  This should appeal to legislators who favor a form of amnesty, even if it does not provide them with future voters since few, if any, will take the necessary steps to citizenship.  It should also satisfy those who oppose amnesty, because it will not create, at least for this generation, a new crop of voters.  Perhaps, as was said of Julius Caesar’s debt legislation, it is a good compromise because it neither completely satisfies everyone, nor does it offend everyone.         

  

  

A Ciceronian Republic or Democracy

   When people say that "America is a Republic, not a Democracy," that does not mean that there are no democratic elements to our Constitution.  There are, in the exact same way that there were democratic elements to the Roman government as well.  The key point is that both have deliberately established, non-democratic checks on the popular power.

   In Rome, for example, the democratic aspect of the constitution was to be found in the Assemblies, of which there were several.  The magistrates were elected through the Assemblies, and all legislation had to be enacted through the appropriate one.  Most people are not aware that the Roman Senate could not enact laws.  Yes, it controlled foreign policy, the purse, military appointments, and for most of the Republic its prior approval was required in order for a vote on enacting a law.  It would pass a "Senatus Consultus" that a proposed law should be enacted, and then it went to the people for an up or down vote.  This power was eventually lost, and legislation could also originate in the assemblies, usually the Plebian Assembly.

   In addition to the Assemblies, the people--or more correctly, I'll grant, the plebians--selected several men to serve as Plebian Tribunes.  The initial purpose of this office was to rescue a member of the plebs from a magistrate, who was at first always a Patrician.  Later, they obtained the power to veto the action of any magistrate within the city of Rome, and could even veto acts of the Senate and courts.  In addition, Tribunes could bring any former magistrate to trial for misconduct during his tenure of office and earned the right to sit in the Senate, even after their term of office was over, provided that they met the property qualifications.

   The democratic elements were checked, however, by several forces.  First, as mentioned above, legislation had to receive, for most of the Republic, prior approval by the Senate.  Even afterwards, only the Senate could appropriate money for public expenses, thus emasculating laws passed by the Assemblies if the required public funds.  During their tenure of office, magistrates were immune from any prosecution except for crimes of sedition or rebellion, and there were no provisions for the impeachment of magistrates.  Senators were not elected but either adlected by the Censors, or took office once elected to the quaestorship or above.

   Inspired by Cicero's writings, our founding fathers attempted to adopt this same sort of mixed government to our Constitution.  The House of Representatives would represent the people themselves, and be elected directly by the citizens.  The Senate, on the other hand, was to represent the upper classes, and was chosen by the state legislatures--which they knew were in the hands of the aristocracy--until the Constitution was amended.  Senators were not responsible to the voters.  The President, of course, was not, and is still not, directly elected by the people, but by the Electors who are chosen by the people in their various states.

   We can date the emerging failure of the Roman Republic from the time when the people started to amass more and more power at the expense of the Senate and the magistrates.  As the government became more and more dysfunctional, personal power and influence became more and more important to candidates for the Consulship, and the Senate, which had successfully guided Rome through the wars with Hannibal and other enemies, became sidelined.  No, it is not the right that usually initiates dictatorship or some other form of authoritarian rule, but the left, in the case of the Romans the Populares.    

 

The Meaning of Republic

   In the United States we say that we live in a republic, and we use this phrase in our pledge of allegiance.  We pledge that allegiance to the flag, and the "republic, for which it stands."  The term gets misunderstood, however, and not just in America.  What really is a "republic?"

   Examining the Latin root of the word tells us a great deal about the true meaning of the word.  “Republic” actually comes from two Latin words, res publica, which means “the people’s thing.”  This was a major step in the development of political theory, the awareness that the government, the organs of state, actually belonged to the people themselves.  In a classic monarchy, the king is the sovereign; the organs of state power belong to him, even if he chooses—or has been forced—to share his power with the nobles of the realm, or even the common citizens.  Even today, in the United Kingdom it is the Queen’s Parliament, not the peoples’, that enacts the laws, and it is her ministers who form the government.  She is still, in theory, the fountainhead of political power, even though she rules only through the Parliament and the cabinet. To this day, one is not a citizen of the United Kingdom; one is a subject of Her Majesty the Queen.

    In the Roman Republic, however, the citizens were the source of power and laws, with no check on their power, if even tradition did limit what they would and would not do.  The people, in the Centuriate Assembly, elected the magistrates of the Republic, and gave them their imperium, the power to command.[1]  The magistrates only had their authority because the people gave it to them, not the gods.  Unlike what Paul would say about government, it was instituted by the people; it was not the agent of God or the gods.  This was an advance over even Athenian democracy, where the magistrates were chosen by lot.  The people enacted the laws through one of two popular assemblies, the Centuriate, or the Assembly of the Plebs, which represented the people who did not have Patrician ancestors.  This assembly also elected the tribunes of the plebs, who had the power to veto the action of virtually any magistrate or even the Senate.[2]

   In his address at the dedication of Gettysburg, President Lincoln uttered a phrase which encapsulates the true nature of a republic.  In his speech he referred to our government as one that is “…of the people, by the people, and for the people…”.  All three of these qualities are important, but it is the first of these, the phrase “of the people” that best indicates the feature that makes a republic a republic. 

   If we examine each of these in reverse order, the first thing that becomes obvious is that the phrase “for the people” could be used to describe virtually any form of government, as long as those who held power honestly acted in the best interests of the people.  Even a tyranny, if it was truly beneficent, could be said to act “for the people,’ at least in terms of their material interests.  This doesn’t mean that the people will be satisfied with such a government; in fact, the more educated they are, the less likely they are to accept such an arrangement.  Most people end up resenting any form of authority that treats them as if they were helpless children.  Furthermore, what happens if the government ceases to be beneficent?  The Roman Emperor Domitian, who was assassinated as a despot, started his rule as one known for the honesty and justice of all the officials, qualities that were enforced by the Emperor himself.  Perhaps Lord Acton’s observation is truly universal.[3]

   Of course it is good if a government can also be described as being “by the people,” that they get to chose those will be in authority over them.  This is also an important feature of an enlightened government, but even the existence of free, contested, elections are not enough to make a nation a republic.  How many times have we witnessed new nations starting out with truly free elections, only to realize that those are the last elections that will be held until the government is overthrown?  

   Even if the pattern of free and contested elections continues, these qualities are still not enough to earn a nation the title of a republic.  Here is the catch: if the will of the people is limited by a “higher law” of any type that is not itself subject to the people, then it is not a republic.  This is what truly matters, that the people are the source of the law, that every other point of reference, any other possible source, is subordinate to them.  Whether that “higher law” be a religious text like the Bible or the Quran, or a secular text like Das Kapital,  or a body of experts who can rule on the legitimacy of the law in the name of this “higher law,” the existence of such a standard means that the government is not truly a republic.  The people must be the final authority.

   What if, like in the United States, the government operates under the authority of a constitution that is supreme over any law enacted either by legislature or plebiscite?  What is the real difference between, say, the Supreme Court of the United States and the Constitution, and the Guardian Council and the Quran of Iran?  Why, with such a supreme law, is the former a republic but not the latter?  What, if anything, is the real difference? 

   There is, actually, a great deal of difference between the two institutions, and the differences can be found both in the source of state authority and in the methods of choosing the ruling body.  First, the Constitution, ratified by the representatives of the people, reflects the conscious decision to limit the power of the government in the interests of the ultimate goal, which is the preservation of liberty.[4]  Granted, the power to remove a Justice of the Supreme Court is limited to that of impeachment, which virtually requires the commission of a criminal offense, but membership on the Court is the prerogative of the President and the elected representatives of the people.  Furthermore, the people can, if they disapprove of a Supreme Court ruling, overturn the ruling by amending the Constitution, even to the extent of abolishing the Supreme Court itself, as unlikely as that might be in actuality.  In Iran, the people have no such power.  Clearly, the Quran can not be amended by the people, nor do they have any power, even indirect, over the membership of the Guardian Council.

   To repeat, what matter is that the people, acting through the established organs of the government, and to whom those organs are responsible, are sovereign; they are the final authority in all that matters, not a deity, not a philosophy, nor even morality.

---

[1] It is true that Rome did not have a tradition of “one man, one vote.”  The people did not directly elect the magistrates; the majority of a century directed how the century would vote, and the majority of the centuries elected the magistrates.  The same indirect process worked in the passage of legislation.

[2] A tribune could not veto a magistrate in his military capacity outside of the city, nor could a tribune exercise the veto against a lawfully appointed Dictator such as Quintus Fabius Maximus the Delayer.

[3] He wrote, Power tends to corrupt, and absolute power corrupts absolutely.

[4] This, the preservation of liberty, was the highest concern of the founders of the United States.  Everything, even the acceptance of democratic principles, was engineered to protect the liberty of the citizens.  Even the idea of majority rule is not seen as being important in its own right, but because it help preserve liberty.

An Immigration Solution

   Several states have passed legislation to attempt, at the state level, to manage the influx of illegal immigrants,’ ‘undocumented workers,’ or whatever other terms the chattering classes may yet devise.   Almost all Americans agree that the current situation is unacceptable, but that is the extent of our agreement; there is no general consensus on how to change it.  We have to devise some method to control the influx of immigrants to this country, particularly those who do so in violation of our laws.

   I think we have to agree on the following matters.  First, each nation has the right to control immigration; there is no “right” to enter another country and live there.  Secondly, we have to deal in practicalities when we propose solutions.  It may be one thing to be legally correct, and yet another to realize that it will never have sufficient popular support to be enacted.  Third, we are going to have to be willing to think in an innovative manner.  “Business as usual” is not going to work.

    Any proposed solution to the issue can be put into one of three categories.  The first is total amnesty for those who are in the country illegally.  In this economic climate, with a large percentage of the workforce unemployed, whether off the books or not, and even larger numbers underemployed, this is simply not a realistic option, nor is it a moral one.   Furthermore, amnesty for those currently in the United States does nothing to prevent the problem from recurring.  In fact, amnesty encourages further illegal immigration to the country.  It is also very discouraging to those who have followed the law and sought immigration through the proper channels. 

   The second, more popular on the right, is to simply deport everyone who came here without the proper paperwork.  This approach might allow its advocates to claim that all they are advocating is that the government should enforce the laws that have already been enacted, but this is even less likely to be carried out than a general amnesty.  The American people would not agree to massive involuntary deportations.  If you think it will, just imagine the outcry when the press reports, cameras rolling, some massive sweep of some real community composed of real people.  It is also too simplistic; what will happen to the children—often citizens by right of birth—whose parents are abruptly deported for no reason other than failing to have the proper papers.  It simply won’t happen.

   The third is to devise some sort of compromise which will avoid massive deportations but somehow control present and future immigration.  Of course, each new change to the law has included the promise that THIS amnesty will be the last; give us this amnesty and, in the future, we will enforce the law, but we never do.   This consistent failure by our government to live up such promises has made many citizens skeptical about such intentions, and any compromise will have to address this perception.   There are several possible improvements that would meet this criterion, but I am proposing one that I think would be the best for sending the message that things have changed, that we are no longer doing “business as usual.”

   The law must make a real distinction between those immigrants who have followed the proper procedures and have complied with the existing laws and those who did not.   Basic justice, a decent sense of fair play, requires it.  It is simply not right to tell those potential citizens that we are sorry for whatever inconvenience or even hardship they may have endured, but that we now intend to reward those who flouted the law so brazenly by giving them the same consideration, the same privileges.  Therefore, I suggest that any such amnesty be offered with limits; that we create a new legal status for those who were formerly here illegally that would be different from the normal resident alien status.  I will be honest; I did not think of this proposal in a vacuum.  It was inspired by the laws relating to non-citizens of Athens or those in Republican Rome holding the “Latin Right.”   They would receive a form of permanent “guest worker” status that would provide all necessary legal protections, to include the right to live and work in America, but it would be a dead end.  They would be permitted to remain in the country indefinitely, work and educate their children with the security that they would not be deported, unless they committed a crime that would allow the deportation of any resident alien, and they would be provided the protection of our labor laws.  Freed of any threat of deportation, they could avail themselves of the courts to seek redress for abuse.  The difference is that it would not provide a path to citizenship.  Those who wish to pursue the path to future citizenship in the United States would have to start from the beginning and apply through normal channels for a visa.  We might amend the current law to allow them to do so while remaining here in America under their new status, but they would have to start over.  We might choose to make an exception for those willing to serve in the military or some other form of alternative civilian status but, without applying for regular status, citizenship—and thus the franchise—would not be an option.eek redress for abuse.and they would be provid  

   This simply recognizes that those who show so little regard for our law should not have a role in making those laws, and that those who did should, on the other hand, be given all of the rights of a citizen insofar as the Constitution permits.  It would provide a humanitarian approach for those who can contribute to the economic welfare of the country, preserve the integrity of their families, and allow them a new start in life.  This should appeal to legislators who favor a form of amnesty, even if it does not provide them with future voters since few, if any, will take the necessary steps to citizenship.  It should also satisfy those who oppose amnesty, because it will not create, at least for this generation, a new crop of voters.  Perhaps, as was said of Julius Caesar’s debt legislation, it is a good compromise because it neither completely satisfies everyone, nor does it offend everyone.