A great improvement. Arnold helped in ways that Cohen couldn't to provide a context for your interpretation of the current context.

There are some places where I think you've done the easy thing by adopting my point in more or less my own words, where the goal I had in mind was to offer another point of departure, so you could climb to a new idea using the rung I fit in the ladder frame.

Your conclusion is still too tentative. You take up my European comparisons, which are part of the global political situation, but you don't take a close enough look at the US politics to ask where the other side of the debate will go. The President's decisions in the early part of this campaign show some very important calculations that you would also want to take into account.

THE POLITICS OF IMMIGRATION

THE IMMIGRATION MYTH

The idea that immigrants are taking jobs that Americans would otherwise hold is not a driving force behind the debate. Most people will acknowledge that a large proportion of the jobs undocumented workers tend to have – whether in farm labor, meat-processing plants, or other sectors – are not very appealing to many Americans. The economic impact of recent immigration legislation in Alabama and Georgia, which has hurt the farming and food preparation industries in both states, is a good demonstration of this.

So what, then, is the source of the passion and fervor that fuels immigration reform opponents? The emotions behind this debate are reminiscent of those surrounding the “war on crime” I remember from earlier in my childhood, during the last period of widespread national economic distress. It seems that, given the fact crime rates are at historically low rates across the country, the fears and anger generated by the latest recession are being channeled in a different direction – xenophobia. This can help explain the current spike in anti-immigrant sentiment among segments of the U.S. population. I believe that these period-specific concerns are strengthened by the long-term demographic shift in the country’s population. One sign that points directly to the heart of the matter is the rhetoric surrounding President Obama that has now become so mainstream, the likely, establishment-backed Republican presidential nominee frequently uses it. Popular slogans expressing the need to “take back America,” or claims that Obama doesn’t understand “real Americans” have not caught on because they refer to one economic class of Americans as opposed to another. Rather, the unprecedented and lingering “birther” concerns voiced by the base of the Republican Party and tacitly endorsed by its establishment shed light on the popularity and deeper meaning behind these slogans.

In the minds of many in the base of the Republican Party, President Obama’s election confirms the fears that fuel the most virulent opposition to immigration. Obama is not only the country’s first black president. His father was Kenyan. The name Barak Hussein Obama doesn’t have the same ring to it as John Smith or George Bush. To many, his election embodies their fears – namely, that the “true” America, as they see it, is being drowned out under a wave of immigration and cultural changes resulting from the rapidly changing demographic forces shaping the country.

DIFFERENT CHANGES – SAME TACTICS

The debate surrounding immigration is an emotional issue, and for many people in America it has come to embody the fears and uncertainty surrounding their and their children’s economic opportunities and livelihoods. Of course, this is too often not recognized or voiced as such. Instead, the debate is discussed in terms of rule of law or national security concerns. It is clear that the United States will not deport an estimated 14 million “illegal” immigrants from its shores. Most serious politicians, on both sides of the isle, recognize that the sheer scale of such a deportation would be a crime against humanity, not to mention a logistical nightmare. Any resolution of the issue must involve some form of amnesty for the majority of “illegal” immigrants in the country. The fact that this outcome is anathema to many in the base of the Republican Party has left Republicans leaders in the tough position of pandering to their base while tacitly acknowledging the reality of the situation – hence Mitt Romney’s fanciful plan to rely on “self-deportation” to solve the dispute. Any fair, rational resolution to this issue must focus on the lives of the millions of people implicated in the debate, and not be couched as a simple issue of law.

That this is not happening should not be surprising, however. Politics appeals not to rationality but to emotion. Politicians (mostly) in the Republican party are capitalizing on the dynamic of fear and uncertainty caused by economic hardship and the country’s shifting demographics to further their political aspirations, just as Arnold described them doing so with regards to the “isms” of the 20th century. The widespread use of the labels “Communism” and “Fascism” by some conservatives, tacitly promoted by conservative networks such as Fox News, to describe Democratic policies or the current administration make it even easier for politicians on the right to use the toolbox their predecessors left behind to discredit previous social movements and political ideologies.

CONCLUSION

The political strategy currently being employed by conservatives appeals to a vocal but narrow segment of the electorate. In a two party political system, it will be difficult for conservatives to actually realize a draconian national immigration policy like those promoted by the Front National in France or Geert Wilders in the Netherlands. However, I doubt that the mainstream politicians currently advocating for or grudgingly tolerating the promotion of such policies are too concerned about them ever being implemented. What matters is that they see them as politically beneficial in the short-term. As Arnold explained, “one does not speak of successful political strategy as statesmanship.” (p. 117). Leaders in both political parties recognize this – but most of us “thinking men” have yet to do so.

But for a reason, as you go on to show, that has a great deal more to do with Thurman Arnold's point than Felix Cohen's.

Perhaps it would be more germane to say that it has absorbed the passion that is at other times invested in "run-of-the-mill law and order issues." Which means, now that we are experiencing low crime levels previously associated with prosperous periods in a period of economic hardship, working-class discontent is being channeled towards xenophobia, where at earlier moments in your lifetime it was being channeled into an anti-crime form of hostility to and within the working class.

The idea that immigrants are taking jobs that Americans would otherwise hold is not a driving force behind the debate, either. Most people will acknowledge that a large proportion of the jobs undocumented workers tend to have – whether in farm labor, meat-processing plants, or other sectors – are not very appealing to many Americans. The economic impact of recent immigration legislation in Alabama and Georgia, which has hurt the farming and food preparation industries in both states, is a good demonstration of this. So what, then, is the source of the passion and fervor that fuels immigration reform opponents? One sign that points directly to the heart of the matter is the rhetoric surrounding President Obama that has now become so mainstream, the likely, establishment-backed Republican presidential nominee frequently uses it. Popular slogans expressing the need to “take back America,” or claims that Obama doesn’t understand “real Americans” have not caught on because they refer to one economic class of Americans as opposed to another. Rather, the unprecedented and lingering “birther” concerns voiced by the base of the Republican Party and tacitly endorsed by its establishment shed light on the popularity and deeper meaning behind these slogans. In the minds of many in the base of the Republican Party, President Obama’s election confirms the fears that fuel the most virulent opposition to immigration. Obama is not only the country’s first black president. His father was Kenyan. The name Barak Hussein Obama doesn’t have the same ring to it as John Smith or George Bush. To many, his election embodies their fears – namely, that the “true” America, as they see it, is being drowned out under a wave of immigration and cultural changes resulting from the rapidly changing demographic forces shaping the country. Although these fears drive the passion behind the immigration debate, they are rarely voiced as such. Instead, the debate is discussed in terms of rule of law or national security concerns. It is clear that the United States will not deport an estimated 14 million “illegal” immigrants from its shores. Most serious politicians, on both sides of the isle, recognize that the sheer scale of such a deportation would be an affront to human dignity, not to mention a logistical nightmare.

Not to mention being, in a technical sense, a crime against humanity. No one supposes for an instant, I think, that nativism in the form presently being practiced by Merine Le Pen in France's presidential campaign, or even more strikingly, associated to government in the Netherlands in the person of Geert Wilders, can be effective in the United States now. Proportional representation allows such parties to enter Parliaments on the strength of the maximum vote they can get under social conditions like those presently tearing at European and US society. But in the environment of the rigidly duopolistic, first-past-the-post electoral regime and Presidential government of the US, they're not capable of swaying the policy-making of governments elected under normal conditions. Mr Romney's flirtation with "self-deportation" rhetoric, despicable—and, dare I say it, French, in a scary sense—as it was, will do him serious harm this season, despite to the extent to which he'll soon be trying to erase it. But he went that far because he was in a very narrow electorate, white as a sheet and—to the eye of an American historian—more Know Nothing than Republican, which administers the admission test to national Republicanism at the moment.

Any resolution of the issue must involve some form of amnesty for the majority of “illegal” immigrants in the country. The fact that this outcome is anathema to many in the base of the Republican Party has left Republicans leaders in the tough position of pandering to their base while tacitly acknowledging the reality of the situation – hence Mitt Romney’s fanciful plan to rely on “self-deportation” to solve the dispute. Any fair resolution to this issue must focus on the lives of the millions of people implicated in the debate, and not be couched as a simple issue of law.

Nor is there any chance that it will be. But this isn't about fair resolutions of issues, like the social processes Felix Cohen writes about. This is about politics. Which has nothing to do with fair resolutions of issues, and which always couches things in ways that appeal to the unconscious rather than rational elements of group behavior. That's why, as Arnold taught you, this will be conducted in ways that make it possible to use the creed of democratic inclusiveness to embrace appeals to violent nativism by presenting anti-democratic xenophobic behavior as religiously required by the religion of the rule of law.

This long graf says little that hasn't been said in many places by others. But two short sentences tying this to the phenomenon identified by Arnold, as I suggested above, would have made an appropriate quick, sharp point.

This is not a conclusion. It's a soft exit with no real meaning at the single most rhetorically important place in any piece of writing: the end.

I've suggested one possible route of rethinking. Arnold serves your purpose because he writes about what you're discussing, which is politics. He shows why politics will pretend to talk law, which is what you are trying to discover. It seems logical to make use of him. But there are other ways of answering more or less the same set of questions.

POLITICAL TRANSCENDENTAL NONSENSE

-- By ZeHailu - 16 Feb 2012

In Transcendental Nonsense and the Functional Approach, Cohen wrote that “[w]hen the vivid fictions and metaphors of traditional jurisprudence are thought of as reasons for decisions, rather than poetical or mnemonic devices for formulating decisions reached on other grounds, then the author, as well as the reader, of the opinion or argument, is apt to forget the social forces which mold the law and the social ideals by which the law is to be judged.” (812) Cohen’s assertion regarding legal fictions can be paralleled with the political arena, where concerns such as “illegal” immigration and voter fraud are ostensibly debated as law and order related issues, without sufficiently acknowledging the core social and ethical stakes surrounding these disputes.

IMMIGRATION

The current debate over “illegal” immigration in America has certain unmistakable undertones that any honest observer can quickly discern. The passion surrounding the debate supersedes that of your run-of-the-mill law and order issues. The idea that immigrants are taking jobs that Americans would otherwise hold is not a driving force behind the debate, either. Most people will acknowledge that a large proportion of the jobs undocumented workers tend to have – whether in farm labor, meat-processing plants, or other sectors – are not very appealing to many Americans. The economic impact of recent immigration legislation in Alabama and Georgia, which has hurt the farming and food preparation industries in both states, is a good demonstration of this. So what, then, is the source of the passion and fervor that fuels immigration reform opponents? One sign that points directly to the heart of the matter is the rhetoric surrounding President Obama that has now become so mainstream, the likely, establishment-backed Republican presidential nominee frequently uses it. Popular slogans expressing the need to “take back America,” or claims that Obama doesn’t understand “real Americans” have not caught on because they refer to one economic class of Americans as opposed to another. Rather, the unprecedented and lingering “birther” concerns voiced by the base of the Republican Party and tacitly endorsed by its establishment shed light on the popularity and deeper meaning behind these slogans. In the minds of many in the base of the Republican Party, President Obama’s election confirms the fears that fuel the most virulent opposition to immigration. Obama is not only the country’s first black president. His father was Kenyan. The name Barak Hussein Obama doesn’t have the same ring to it as John Smith or George Bush. To many, his election embodies their fears – namely, that the “true” America, as they see it, is being drowned out under a wave of immigration and cultural changes resulting from the rapidly changing demographic forces shaping the country. Although these fears drive the passion behind the immigration debate, they are rarely voiced as such. Instead, the debate is discussed in terms of rule of law or national security concerns. It is clear that the United States will not deport an estimated 14 million “illegal” immigrants from its shores. Most serious politicians, on both sides of the isle, recognize that the sheer scale of such a deportation would be an affront to human dignity, not to mention a logistical nightmare. Any resolution of the issue must involve some form of amnesty for the majority of “illegal” immigrants in the country. The fact that this outcome is anathema to many in the base of the Republican Party has left Republicans leaders in the tough position of pandering to their base while tacitly acknowledging the reality of the situation – hence Mitt Romney’s fanciful plan to rely on “self-deportation” to solve the dispute. Any fair resolution to this issue must focus on the lives of the millions of people implicated in the debate, and not be couched as a simple issue of law.

VOTER FRAUD LEGISLATION

The same fears driving the immigration debate are also at the heart of the recent push by conservative legislatures in several states to reform voter identification laws. The primary concerns and motivations cited by proponents of these reforms regard voter fraud. This is an interesting concern given that there have been very few documented instances of voter fraud. Even proponents of these laws often have a difficult time pointing out a substantial number of such cases. The real dispute here is clearly political. Several studies have shown that stricter voting laws requiring, for example, state-issued photo identification in order to vote, are likely to have a disproportionate impact on young, minority, and low-income voters. These demographics traditionally tend to be voting blocks for Democrats. Yet proponents of these types of laws insist that their only concern is preserving the sanctity of the ballot box. The law and order narrative whereby proponents of these laws portray them as protecting the integrity and just outcome of the voting process is incomplete. The real, unspoken question, is whom are they protecting the process from? If the protection of the integrity of voting is such a big concern among conservatives, then why are many conservative groups simultaneously pushing to repeal or dilute the Voting Rights Act? The obvious answer is that this is a partisan political strategy hidden in a veneer of objectivity and concern for fairness. By limiting turnout among targeted portions of the population viewed as being likely to vote for the other party, Republican-controlled legislatures hope to gain an edge in future elections.

MOVING FORWARD

Several challenges to stringent state immigration and voter ID laws are currently working their way through the courts. Let’s hope that in evaluating these issues, courts don’t issue rulings “without [the appropriate] appreciation of the economic, social, and ethical issues which [they] involve.” (812)

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