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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