I’m no expert in Brickerology but I read and replied to his posts for probably a decade or more, and I do not think his brand of constitutional interpretation is so far gone as Max’s–Max genuinely rejects the 14th Amendment as valid law, which is further than most originalists go since most originalists at least concede that the process of amending the constitution is valid, and amendments they may personally dislike, passed via that process, are (begrudgingly) valid.
If he worships the Constitution so reverently, how can he reject a portion of it?
I don’t see why. People who at least believe that they want what’s best for people can at least in theory be persuaded to make concessions. Max has ruthlessly determined that regardless of the consequences–and he has recognized those consequences–he will not budge.
I haven’t seen any posts of Max_S’s where he denies the 14th Amendment is not “valid law”. My understanding of his view is that the use of the terms “nor shall any state deprive any person of life, liberty, or property, without due process of law” does not extend to any new rights (or any existing rights extended to people it was not intended by some magically knowable majority of people, like homosexuals) to people. I may be completely wrong because I don’t follow many of his posts, but, to me, he rejects substantive due process rather than conclude the entirety of the 14th Amendment is not valid. But, again, I may have missed a huge chunk of his views.
And Bricker, who by and large self-identified as a “textualist”, certainly made clear that, were he a judge, he would respect stare decisis even if strict adherence to his judicial philosophy would reach a completely different conclusion (ala Max_S’s no rights exist but those enumerated and only for white men). That allowed him to conclude he wouldn’t overturn Griswold or Brown or Loving/Zablocki so he wasn’t a bad guy, despite the fact they were “activist rulings” that “created new rights”. But, again, that was in my dealings with him.
Perhaps a better example than harboring a fugitive slave in 1858 is harboring an alien today who is known to have entered or remain in the United States unlawfully - for example if they tell me so while pleading for shelter. Under current law,
“any person who […] knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation […] or aids or abets the commission of any of the preceding acts […] shall, for each alien in respect to whom such a violation occurs […] be fined under title 18, imprisoned not more than 5 years, or both;”
I believe the fine under title 18 would be considered an infraction, so the fine would be “not more than $5,000”. Of note I read “conceal, harbor, or shield” as all being modified by the prepositional phrase “from detection”.
I live in Florida - you may remember our wet feet, dry feet policy that ended in the final days of Obama’s presidency. If a Cuban family knocks at my door, telling me they are refugees of Communist oppression heading to sanctuary up North, wanted by immigration officials, and just need a place to stay for the night. Should I agree to provide shelter in violation of the law? Do I agree?
The purpose of morals is to inform action. It is undoubtedly a moral good to help people in need. But it is also relevant to the analysis whether I am putting myself at risk by doing so. I could probably get away with hiding them. I know very good hiding places in my house, in the unlikely event that officials knock at my door. I could probably lie to officials, or bend the truth, with a straight face. And even if I do get caught, being convicted is a high bar. Even if I am convicted, the chances of a jury giving me a harsh sentence such as 5 years or $5,000 is slim to none. So in this case the personal consequences are practically none.
This leaves only my general duty to follow the law, up against the moral good of helping people in need. Which should be more important? I think the answer to this question makes me evil in your eyes. I would offer shelter from the elements but not protection from the law. Because while not absolute, I think the duty to follow the law is very strong. It is only trumped by unconscionable acts, meaning acts so strongly against my conscience that I could not live with myself if I carried it out, such as turning out a child in inclement weather or shooting an innocent.
The question is whether I should violate an immoral law when I think I can get away with it - and the answer is no, not unless the law requires me to do something unconscionable. Why? Most of you already accuse me of lacking a conscience, being a monster, a racist, a sociopath, and just plain evil - because while I respect people whose convictions lead them to civil disobedience, I do not myself think it is a moral practice in all but the most extreme cases. Civil disobedience is antithetical to the concept of ordered society and rule of law. Consider for just an instant what a real sociopath would do, what a real racist would do, if he thought he could get away with it. A racist policeman corners an unarmed suspect in an alleyway. The suspect submits, and he has legal rights. But the policeman thinks he deserves to die, and could probably get away with shooting him in “self defense” right here and now. A racist man in Vermont ante bellum finds a runaway slave sheltering in his barn. He has no compunctions shooting the slave on the spot for trespassing and harassing his animals (the belief being that slaves are subhuman, as contemptible as a wolf), and is sure to get away with it if he does.
So the standard I use is the law, as limited by conscience. Based on personal observation, a person’s conscience is subjective as are his or her personal mores. Extend the problem of the ring of Gyges to reflect the reality of people being able to get away with things all the time: past generations could count on a fear of God to prevent abuse of authority, but that doesn’t apply in this modern day and age if it ever really held at all. I am not myself a God-fearing man. If there ever was a forbidden fruit, we have forgotten how it tastes. Mores vary not only among people but also as a person matures. Originally the solution was self-discipline and rational thought, which works for the individual but not for society. Ours is a world with its share of hedonists, racists, utopians, &etc. Even conscience varies over time as someone can be sensitized or desensitized.
The social compact and the concept of rule of law exist primarily to resolve the conflicts between people’s differences in opinion as to what is right and what is wrong. An individual’s primary obligation to society is to follow its laws even when he or she would rather flout them. In return you are promised protection from anarchy. Morality, and immorality, are irrelevant to the purpose of social order; if you are free to disregard the law when you find it immoral, others are free to disregard the law when they find it immoral.
So I arrive at the conclusion that I should offer shelter from the elements, but if the law comes knocking, I shouldn’t protect them even if I could do so without repercussion. Now I can address the separate issue of cowardice.
Under a different system of morals, the right thing to do may be to protect the Cuban family, should immigration officials ask about them. Revealing their presence under pressure would be an act of moral cowardice. Sticking to your convictions despite fear of retaliation demonstrates bravery and resolve.
With my system of morals it works in reverse. The right thing to do is to tell the officials - if they ask - that the family is, or was, in my house. But say we make fast friends, and while it’s not unconscionable to turn in a friend, I really don’t want to do that. In the moment I might flinch, and protect the Cuban family. That would be moral cowardice because I would be doing the wrong thing (just because they are friends doesn’t tip the moral analysis) so as to avoid personal fear (dealing with the uncomfort of turning in a friend). On the other hand I wouldn’t go so far as to say turning them in demonstrates bravery. It doesn’t, even if it is the right thing to do.
But as I wrote in response to iiandyiiii , writing about a hard decision and facing it in real life are not the same thing. While I do not presently think it unconscionable to turn over a family to immigration authorities (contrast with say, shooting an innocent in cold blood), if actually put in this position, I could have an epiphany that changes the entire moral analysis. It could be something about the officials that makes me lose confidence in the system. It could be something about the family. It could be looking into their eyes and just knowing, this is wrong wrong wrong, who am I kidding, if I go through with this, I’ll never forgive myself.
~Max
This right here is your problem. Your risk is largely irrelevant, to any world view that can define and defend “morals.”
So, you’d be fine with your parents being imprisoned and executed for giving birth to you. Good to know.
Remember, when you say it’s OK to make something illegal, you are also advocating for punishing the people that do those things.
I wouldn’t be fine with that at all! I don’t read the federal constitution (ETA: that is, the due process clause. Hadn’t really thought about it but the equal protection clause works here.) as protecting them if the State wanted to ban interracial marriage. The federal constitution is a deeply flawed document, and I think it needs a lot of amendments. It’s dangerous to keep basing our entire system of civil rights on esoteric theories of legal implications and subjective “fundamental”-ness that I don’t think is supported by the actual text. You should at least recognize the danger, in the wake of the Dobbs draft, of leaving fundamental rights on such a flimsy foundation.
Just because I say a state has legal authority to do something, doesn’t mean I think it’s right for them to use it. Don’t you think the administration here has the authority to ban you for any reason whatsoever? If you say yes, you aren’t advocating for your own banning.
~Max
As it happens, although I am not a lawyer, I have had the opportunity to study US immigration law, spent my most recent semester of law school working in my school’s human trafficking clinic, and wrote a paper on the origins and development of the Sanctuary Movement (beginning as it did as a sort of “new Underground Railroad” in the 1980s, not at first with sanctuary cities, but with religious leaders and their congregations in the US providing just the sort of support to immigrants you posit, and that did in fact lead them to run afoul of the law you quote, culminating in a series of trials in the mid-80s that resulted in several convictions).
That said… I am convinced that US immigration law, and indeed the notion of sovereignty shared by most developed nations (and in particular the “monopoly on violence” that states are presumed to enjoy within their borders) is deeply flawed, to the point of being straight up immoral (or even unconscionable!), and I am now well and truly convinced that the world needs to move towards open borders allowing for the free movement of people about the earth. The only reason we have now a collective memory of a teenager falling to his death from an Air Force plane departing Kabul is because the poor kid couldn’t just hitchhike to the nearest border and keep on going until he reached a place of safety beyond the Taliban’s control.
So I would have no qualms at all about saying the moral thing to do—and indeed the thing I hope I would do—would be to provide assistance to undocumented migrants, even if they are not fleeing oppression, but simply want to live somewhere other than within the confines of the borders within which they happened to have been born.
Further, I do not consider myself as needing “protection” by the government or society from anarchy, at least for certain definitions of anarchy, and particularly if we were to adopt a working definition of anarchy centered around a core principle of “the government should never hurt you” and just see how close to that we can actually get.
I think we live in a deeply flawed society, and as such society’s laws are no basis from which to draw on as a moral foundation. I am for government and the law as a means of protecting liberty and ensuring the maintenance/enjoyment of human rights for all, but no more.
It looks like at least some progress was made on that front since your studies of the '80s, because when I grabbed the snippet of law for the above post, I saw an exception for religious groups.
I will say that your concept of sovereignty is different than mine, perhaps more worldly-wise, because my concept of “anarchy” is the unstable opposite of a government monopoly on violence.
~Max
@ASL_v2.0 - in the context of this thread I feel that your post is doing the opposite of strawmanning. I don’t know if there is a word for that, but I feel your arguments are aimed at refuting a much more ethical position than @Max_S embraces. Your arguments are far better than his crude disdain deserves. Even people who think the borders should be closed to all immigration do not generally exhibit the psychopathic lack of empathy exhibited in this thread by @Max_S.
I don’t see that as an improvement, I see it as a disturbing trend toward theocracy. Same with the Religious Freedom Restoration Act. It’s not that I don’t think the government should have to overcome a high bar to burden someone’s fundamental rights, but rather that I take issue with singling out religion as worthy of special protection. People should have the same rights irrespective of their purported religious beliefs.
I don’t see it that way (unlike the RFRA which is definitely that), though I’m not religious, it is more likely a specific response to the specific incidents involving religious groups that you mentioned. The perfect is not the enemy of the good; perhaps in the future it can be extended like a foot in the door to allow any non-profit group to provide basic room, board, travel, and medical assistance to unlawfully present aliens.
~Max
Unequal laws that place a higher burden on the non-religious than on the religious are waaaaay worse than individual moral decisions to not adhere to the law.
One is an act of government, backed up by the threat (and perhaps actual use of) state violence. The other is just some guy or gal doing what they believe is right: even if that one individual is wrong, it has nothing like the destructive power of biased and unequal government use of violence.
I mean, shoot, by your logic a law that said, say, white people get the first year of college free, but black people have to pay for all four years the same as they do now would be an improvement. Because black people would be paying just as much as before, and white people would be getting it free, hence a net gain. Can’t let perfect be the enemy of good, right? Even if “good” by your analogy is some people get special rights, and others don’t.
I agree. While I don’t think civil disobedience is moral, this is a moral conclusion that isn’t very high on the scale of the moral wrong-ness. As I have written before, I respect people who practice civil disobedience. They aren’t scourges on the good name of society, they just have a different point of view than I do.
A society which gives religion special preference is wrong, more wrong than an individual who practices civil disobedience. But it’s inappropriate to compare the two directly, i.e. to imply that I should practice civil disobedience because it is less wrong than the law being flouted. This is because the morality a law is an input to the question of whether civil disobedience is justified… if you imagine a scale with the pros and cons of defying the law, you would be counting the wrongness of the law twice, if that makes sense.
~Max
This motherfucking troll just lurches from one indefensible disgusting position to another, and you fools are debating him politely.
He’s probably achieved sexual release more times in the last couple of hours than at any time since his mother succumbed to the pox.
Not “less wrong” but actually right. All those troublemaking people of color wanting to use white-only facilities during the civil rights movement? Not merely “less wrong” than the racist state tying to force them into a position of second class citizenship, but actually right to be defying Jim Crow laws.
Oh hey neat, have we now moved into claiming that Gandhi and Dr. King were immoral actors for daring to practice civil disobedience?
Yeah, while it’s commendable in some way the effort @ASL_v2.0 is putting in, he is literally doing nothing but feeding Max everything he wants. There is really no virtue in debating a position with someone who didn’t arrive at that position through sound thinking and who is willing to manipulate it as much as possible to elicit maximum negative response.
That’s a different situation because they were personally being discriminated against. A fat lot of good the social compact does when you are made a second class citizen, or a nonperson altogether. Back when we were talking about runaway slaves I freely admitted that the slave was justified in breaking the law. I thought we were talking about people who are practicing civil disobedience to help others - i.e. a person violating the law to harbor a non-religious alien, a landed white person harboring a fugitive slave.
~Max
You expressed my point rather more concisely.