Best George Washington Quotes

George Washington by Gilbert Stuart

Today is Presidents Day and therefore George Washington's birthday. In honor of the day, I have compiled my favorite quotes attributed to America's first president. I hope you can appreciate the wisdom here and are inspired by this great man.

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“I hope I shall possess firmness and virtue enough to maintain what I consider the most enviable of all titles, the character of an honest man.” ― George Washington

Be courteous to all, but intimate with few, and let those few be well tried before you give them your confidence. - George Washington

True friendship is a plant of slow growth, and must undergo and withstand the shocks of adversity, before it is entitled to the appellation. - George Washington

Let your heart feel for the afflictions and distress of everyone, and let your hand give in proportion to your purse. - George Washington

I walk on untrodden ground. There is scarcely any part of my conduct which may not hereafter be drawn into precedent. - George Washington

Washington Crossing the Delaware by Emanuel Leutze

“To encourage literature and the arts is a duty which every good citizen owes to his country.” ― George Washington

“Real men despise battle, but will never run from it.” ― George Washington

“Be not glad at the misfortune of another, though he may be your enemy.” ― George Washington

George Washington by Robert Field

“The hour is fast approaching, on which the Honor and Success of this army, and the safety of our bleeding Country depend. Remember officers and Soldiers, that you are free men, fighting for the blessings of Liberty -- that slavery will be your portion, and that of your posterity, if you do not acquit yourselves like men.” ― George Washington

“I had rather be on my farm than be emperor of the world.” ― George Washington

“LIBERTY, when it begins to take root, is a plant of rapid growth.” ― George Washington

Truth will ultimately prevail where there is pains to bring it to light. - George Washington

It may be laid down as a primary position, and the basis of our system, that every Citizen who enjoys the protection of a Free Government, owes not only a proportion of his property, but even of his personal services to the defense of it. - George Washington

While we are contending for our own liberty, we should be very cautious not to violate the rights of conscience in others, ever considering that God alone is the judge of the hearts of men, and to him only in this case they are answerable. - George Washington

Signing of the Constitution by Howard Chandler Christy

Post by Jeremiah Lorrig

FDR's Supreme Court

In 1933 Franklin Delano Roosevelt replaced Herbert Hoover as President of the United States. At that time, the progressive democratic movement had hit a barrier in the Supreme Court. A number of progressive legislative initiatives had been declared unconstitutional, as were significant portions of Roosevelt's first wave of New Deal legislation. To counter that, Roosevelt sought judicial appointments who were more sympathetic to his legislative ends.

This is the story Noah Feldman, professor at Harvard Law School, addresses in his book Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices. Specifically, Feldmon focuses on four particular appointments: Hugo Black, William Douglas, Felix Frankfurter, and Robert Jackson. These four men would influence the legal system for decades--Justice Douglas served until 1975.

As Feldman shows, however, each of these four men solved the issue of disliked Supreme Court precedent in his own way--and by so doing laid the foundation for nearly the entire spectrum of what we now consider judicial philosophies. Black took an originalist route, focusing on ideas such as historical research and original intent to correct the errors that had crept into the Court's jurisprudence. Douglas ended up taking a rights-based tack, using the court to further individual rights (more liberal than libertarian, although Feldman conflates the two). Jackson (who took a break from the Court to be a prosecutor at the Nuremberg trials) took a pragmatist approach, using the balance of powers as his guide in determining disputes between the governmental branches. And finally, Frankfurther took a position of deference to the legislature--a position that guaranteed liberal outcomes when a liberal legislature was in power yet ended up affirming much more conservative outcomes as the makeup of the legislature changed (allegations that he was inconsistent reveal more about the changing political landcape than his own changes in philosophy). So although they were all appointed by Roosevelt, and although during Roosevelt's administration they were all fairly reliable votes for him, after his death their various strands of jurisprudence diverged. One of the Justices' clerks referred to them as scorpions fighting in a bottle (hence FEldman's somewhat odd title.)

What was most surprising to me (well, besides the fact that neither FDR nor Jackson graduated from law school) was that although all four were deemed "liberal" in their day, in hindsight they largely encompass the entire spectrum of judicial philosophies used today, be they liberal or conservative, activist or deferential. In this sense, then, we are all "liberals" now in our thinking about judicial philosophy at all.

Yet this reveals one of the key elements missing from the book. Although Feldman does an excellent job of tracing the constitutional legacy of these Justices, and of introducing the reader to their individual histories, he does not nearly pay enough attention to any judicial philosophies that existed prior to their appointment. One is left with the impression that Black invented originalism, or that Frankfurther was the first to view judicial review through a lens of deference to the legislature. However, as the Court was over 150 years old at the time of their appointment, there were plenty of prior Justices who had also left their interpretative mark. Yet Feldman leaves the impression that (apart from Holmes and Brandeis) FDR's Justices largely stepped into a vacuum. In short, while he is quite insightful of the downstream effects of the FDR Court, he could have spent more time developing the upstream influences.

Be that as it may, it was not the emphasis of the book, and is only a side critique. Apart from that, Feldman's book makes a good guide for anyone seeking an introduction to the constitutional thought of the FDR Court and its lasting legacy. It also reveals the individual personalities of the various Justices and lets the reader see past their judicial opinions into how they thought.

Click here for more book reviews.

Immigration History: The Constitutional Question

Previous: A National Policy

In this post we finally directly face the constitutional question that has been haunting this entire series. Prior to the Civil War, most constitutional discussion about immigration authority involved the commerce clause. However, and quite likely as a result of distaste with the "people as commerce" implications of such an argument in light of the slavery question, that line of thinking was largely abandoned in the second round of immigration cases.

In 1875 the Supreme Court again considered to what extent states could restrict immigration. After the Passenger Cases resulted in the invalidation of the state taxes on immigration, New York modified its laws. Instead of a tax on immigrants, New York adopted a $300.00 per-passenger bond on ship captains for the purpose of indemnifying the city for any expense the immigrants might cause during their first four years in the country. However, instead of paying the bond, the captain also had the alternative of paying a $1.50 per-passenger fee. If neither was paid, a $500 per-pauper penalty was imposed on the captain.

The Court reviewed this statute in Henderson v. Mayor of City of New York, 92 U.S. 259 (1875) and held that it was an unconstitutional because regulation of commerce and international relations were exclusive matters for the federal government. The Court explained:

A regulation which imposes onerous, perhaps impossible, conditions on those engaged in active commerce with foreign nations, must of necessity be national in its character. It is more than this, for it may properly be called international. It belongs to that class of laws which concern the exterior relation of this whole nation with other nations and governments. If our government should make the restrictions of these burdens on commerce the subject of a treaty, there could be no doubt that such a treaty would fall within the power conferred on the President and the Senate by the Constitution. It is in fact, in an eminent degree, a subject which concerns our international relations, in regard to which foreign nations ought to be considered and their rights respected, whether the rule be established by treaty or by legislation. 

It is equally clear that the matter of these statutes may be, and ought to be, the subject of a uniform system or plan. The laws which govern the right to land passengers in the United States from other countries ought to be the same in New York, Boston, New Orleans, and San Francisco. A striking evidence of the truth of this proposition is to be found in the similarity, we might almost say in the identity, of the statutes of New York, of Louisiana, and California, now before us for consideration in these three cases. 

It is apparent, therefore, that if there be a class of laws which may be valid when passed by the states until the same ground is occupied by a treaty or an act of Congress, this statute is not of that class.

 * * *

We are of opinion that this whole subject has been confided to Congress by the Constitution; that Congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national; that by providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question, which has long been matter of contest and complaint, may be effectually and satisfactorily settled.

This decision was released six months after Congress adopted its first national restrictions on immigration. However, Henderson is not the case pointed to for the federal immigration authority. For that, we need to fast forward another fourteen years. This time, instead of a challenge to state policies (which only indirectly involved federal powers), the Court was squarely face with the question: are federal immigration restrictions permitted under the Constitution.

The answer was yes, but the reasoning is one that ought to bother both originalists and textualists.

As you will remember from the last post, Congress passed the first of the Chinese Exclusion Acts in 1882. In 1889, a challenge to these restrictions was decided by the Supreme Court in The Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581 (1889).

In 1884 Congress had established a system of giving licenses to certain Chinese laborers who were in the country which would grant them permission to return should they visit China. However, in 1888 Congress revoked that return privilege, resulting in the exclusion of all those who had departed the country with the expectation of an ability to return. Chae Chan Ping was one such laborer. After working in the United States for a number of years, he obtained the certificate permitting his return entry and departed for China. However, since the law was changed in his absence, he was denied reentry upon his return to the United States. He brought suit on two grounds: that the Congressional act violated a treaty with China and that it was an unconstitutional exercise of federal power. He lost on both grounds.

First the Court examined the law in light of the 1868 treaty with China which guaranteed free migration between the two countries (an 1880 modification permitted some restrictions, but not absolute prohibition) and held that treaties have no force without implementing legislation and do not bind the legislature:

The treaties were of no greater legal obligation than the act of Congress. By the Constitution, laws made in pursuance thereof, and treaties made under the authority of the United States, are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. A treaty, it is true, is in its nature a contract between nations, and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case, the last expression of the sovereign will must control.

In short, the courts are not the proper mechanism for holding Congress to a treaty and Congress can follow or not follow a treaty as it sees fit.

The Court next turned to the constitutional question, holding that since immigration was a national issue, of course power to regulate it belonged to the national government:

That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. 

* * * 

The power of the government to exclude foreigners from the country whenever in its judgment the public interests require such exclusion has been asserted in repeated instances, and never denied by the executive or legislative departments.

* * * 

The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of anyone.

I said earlier that this analysis should be troubling to originalists and textulists. Here's why. The Constitution was intentionally written, and the federal government was intentionally structured, to not exercise all powers inherent to sovereignty. This is a primary feature, not a accidental byproduct. The national legislature does not have all powers "incident of sovereignty," but only those explicitly delegated (plus those "necessary and proper" to exercise the powers explicitly delegated). The Constitution itself states this, and were that not clear enough the Tenth Amendment states it again.

The Chae Chan Ping case involved none of this analysis. The Court did not categorize immigration restrictions under the delegated power to regulate naturalization, nor did it place them under the delegated power to regulate commerce. In fact, it tied the restrictions to no specific delegated power whatsoever. Instead, it skipped that entire analysis and simply said that as a sovereign nation, of course the legislature could adopt such an act. Yet if the federal government can act in any "incident of sovereignty," the entire separation of powers doctrine is obsolete.

And that is how the Supreme Court solved immigration's constitutional problem.


Next: The Chinese Exclusion Acts (link will be provided upon publication)


Sources:

Mary Sarah Bilder, The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce, 61 Missouri Law Review 4 (Fall 1996) 743-824.

Immigration History: The Constitution

Previous: Before the Constitution

As explained previously, the lack of a national naturalization policy in the Articles of Confederation was one of the motivations for adopting the Constitution. The Constitution fixed this deficiency in Article 1 Section 8 by granting Congress the power "[t]o establish an uniform Rule of Naturalization."

However, there was no corresponding grant of power to Congress to establish or otherwise restrict immigration. The closest the Constitution comes is in Article 1 Section 9, where it provides:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

This clause is widely interpreted to be a reference to prohibiting the slave trade, nothing more. And in fact, relying on this clause, Congress passed and President Jefferson signed legislation prohibiting the slave trade in 1808.

During the ratification debates opponents of the Constitution attempted to argue that this clause could be used to "prevent voluntary and beneficial emigrations from Europe to America." James Madison in Federalist No. 42, after affirming that it was directed at the slave trade, dismissed, among others, the immigration argument: "I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government."

Now, the Constitution only granted the new national government limited legislative powers. It specifically states in Article 1 Section 1 that "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (emphasis added). This is in contrast to the opening of Articles 2 and 3, which grant "[t]he executive Power" and  "[t]he judicial Power" to the President and the courts, respectively. Unlike the other two, the legislative grant of power is limited, not plenary. And were there any confusion about this, the Tenth Amendment was added: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

So here's the problem. Under the Constitution, Congress has limited legislative powers, and those powers do not explicitly include the power to regulate immigration (remember, immigration is distinct from naturalization). So to the extent that immigration restrictions are classified as legislative, there is a significant problem.

There are a few ways around this. If immigration restrictions are somehow "necessary and proper for carrying into Execution" the naturalization power, it could be included there. Or if immigration is considered part of commerce, it could be regulated through the commerce clause. And there always is the slave trade clause. However, none of that is clear from the founding era or founding debates. Consequently, under a strict textualist approach, an argument remains that Congress has no Constitutional authority to legislate an immigration policy.

Hold that thought, for we shall return to it. It will take the judicial branch nearly a hundred years to sort it out.

Next: Naturalization and Deportation

DiLorenzo's Fake Lincoln

Some weeks back I was in an online discussion about good Lincoln biographies. The book that received the most mentions was The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, by Thomas DiLorenzo. Some brief internet searching revealed that the book is quite controversial and has been charged with gross distortion of history. Nevertheless, I was morbidly curious enough to read it myself.

DiLorenzo's stated goal is to get past the "myths" of Lincoln that he believes is all too common and reveal the truth about the man. (p. 1-2) Yet despite his claims, DiLorenzo actually fails to uncover anything particularly novel about our sixteenth president. Instead, he does the opposite, and in so doing becomes the very type of historian he decries. He presents an abridged history, selectively using events, quotes, and supporting scholars to further his thesis driven work. In fact, DiLorenzo identifies nothing about Lincoln's views of  race, southern succession, national unity, or methods of emancipation that is not addressed with greater care and context in Doris Kearns Goodwin's much superior Team of Rivals. In comparison, The Real Lincoln reminds me of a rushed college paper where all facts must be squeezed into the neatly predetermined premise and no argument should be examined too closely.

The thesis is quite simple. Too simple. Abraham Lincoln began the Civil War to further the centralized "American System," which he identifies as the combination of a protective tariff, internal improvements (subsidies, particularly for railroads), and a national bank. Addressing the issue of slavery was merely a means to that end. In fact, DiLorenzo goes so far as to conclude that subsidizing railroads "seems more and more like the sole reason the Republican Party was created in the first place." (p. 222-23)

DiLorenzo's historical errors have been addressed elsewhere and elsewhere. They could, and did, fill an entire book. Even a sympathetic reviewer concluded: "The Real Lincoln is a travesty of historical method and documentation. Exasperating, maddening, and deeply disappointing." These reviewers have quite adequately pointed out the worst errors concerning Lincoln. I want to focus on the errors concerning Lincoln's world.

First of all, DiLorenzo repeatedly accuses Lincoln of subverting or ignoring the Constitution. Yet his constitutional reasoning makes me wonder if  he has ever carefully read the document or if he simply uses the term "unconstitutional" for anything he doesn't like.For example, DiLorenzo faults Lincoln for:

ignor[ing] the economic logic of the commerce clause of the U.S. Constitution, which--in order to guarantee free interstate commerce--made it illegal for one state to impose a tariff on goods imported from another state. If free trade among states is a good idea--and it is--it is just as good an idea with regard to international trade. This was the thinking of the framers of the idea as well. Jefferson and Washington, for example, were staunch advocates of free international commerce as well as interstate commerce. (p. 69-70)

Yet he fails to mention that tariffs on international commerce are explicitly permitted by the Constitution (Article 1, section 1, clause 1) and one of the first major acts passed by the new Congress was the Tariff Act of 1789, which was signed into law by President Washington.

Likewise, DiLorenzo labels the whole "American System" (tariffs, banking, and subsidies) "mercantilist" (p. 56) and favorably references the "constitutional arguments" made against such a system by "Jefferson, Madison, Monroe, Jackson, Tyler and others." (p. 234). Yet he never informs his readers that John Marshal, himself a member of the founding generation and delegate to the Virginia ratification convention, wrote a unanimous opinion for the Supreme Court finding that chartering a national bank was a proper exercise of the power to regulate interstate commerce. Instead, DiLorenzo leaves the reader with the distinct impression that both tariffs and the bank are obvious unconstitutional overreaches of federal power.

Much ink is also shed over Lincoln's suspension of habeas corpus, but despite that ink the reader would not know that the Constitution says: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (Article 1, section 9, clause 2.) Nor is the reader told that despite this same phrase's appearance in the Confederate Constitution, Jefferson Davis also suspended habeas corpus and other civil liberties. Failure to even engage the constitution text does not make for a strong constitutional argument. For those truly interested in a serious discussion of the habeas corpus suspension, as well as other constitutional questions from the era, see Mark Neely's Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War.

DiLorenzo's Constitutional double standard is further on show in his discussion of internal improvement subsidies. Somehow, after railing against the corruption that invariably accompanies internal improvement subsidies (not to mention his skepticism of their constitutionality),  DiLorenzo faults Lincoln for not adopting a method of compensated emancipation. Apart from the fact that Lincoln and the Republicans had initially pursued that avenue with no cooperation from the states, such a measure would be subject to the exact same criticisms that DiLorenzo had for other subsidy systems. Yet for DiLorenzo, no stick seems too poor to beat Lincoln. By this point, he looks less like lady justice blindly weighing the facts and more like a blindfolded child wildly waving a stick at a piñata.

Apart from his stilted view of the Constitution, DiLorenzo also repeatedly demonstrates that he has little knowledge of pre-Lincoln American history. In an odd twist, the author who claims to be giving a closer look than anyone else to one of our most famous Presidents has failed to look closely at anyone else. DiLorenzo paints the American founding as a libertarian happy place marred only by the existence of Alexander Hamilton and his ilk.  In his portrayal, all the founding fathers (except Hamilton) believed in right of succession/revolt against oppression (except for slaves), in freedom and liberty (except for slaves), in free markets (with slave labor), and in strong restrictions on the use of state authority (except for runaway slaves). Lurking in the shadows were Alexander Hamilton, Daniel Webster, and Henry Clay, held at bay by Thomas Jefferson, James Madison, Andrew Jackson, and John Calhoun. Lincoln finally accomplished what Hamilton etc. could only dream about, the destruction of the federalist system.

That the loose confederation model of voluntary enforcement did not work under the Articles of Confederation is apparently an irrelevant detail. As is Jefferson's complete absence from the Constitutional Convention. As is the passage of tariffs and chartering of national bank by the very first Congress. As is the early passage of the Alien and Sedition Acts (DiLorenzo calls their "quick[]" abandonment a demonstration of how the foundation generation "jealously protected rights," (p. 131) but does does not bother to enlighten us what their initial adoption a mere 11 years after the Constitution was ratified means). Lincoln is even blamed for the ill treatment of Native Americans that took place in the wars after his death (and some during his administration), while Andrew Jackson is somehow lionized for his proper view of government with no mention made of his awful Indian policies.

Lincoln is routinely weighed against those who DiLorenzo believes are the truly great presidents, Jefferson, Madison, and Jackson, and found wanting. But it takes little more than a basic knowledge of these other presidents to realize that DiLorenzo's standard is one of convenience, not history. Madison's co-authorship of the Federalist Papers with Hamilton is hardly mentioned. Lincoln is chastised for his eagerness for war, but Madison's War of 1812 (pushed for by Calhoun) is also not mentioned. And there is not even attempt to reconcile Jefferson's Louisiana Purchase with DiLorenzo's version of Jefferson as a strict adherent to limited spending and executive power.

But the oddest historical oversight is DiLorenzo's treatment of Andrew Jackson. DiLorenzo holds up Jackson as one of the strongest supports of states rights, including the right of states to nullify federal laws and secede from the Union. Apparently, he has either never heard of or didn't think it worthwhile to mention the Nullification Crisis in 1832--the incident where Jackson was on the verge of ordering federal troops into South Carolina to enforce federal laws. Madison likewise stated during this time that South Carolina was in the wrong. In the lead up to the Civil War, Lincoln looked to Jackson for guidance on how to respond to rogue states. Jon Meacham addresses this in detail in American Lion: Andrew Jackson in the White House. Yet ignoring all this, DiLorenzo tells his readers that "Thomas Jefferson was perhaps the most articulate defender of states' rights, followed by Andrew Jackson..."(p. 261) Yet for all DiLorenzo's rhetoric, I'd put $5.01 on Lincoln in any debate between him and DiLorenzo over a proper understanding of Jackson's legacy.

Towards the end of the book, we get a fascinating glimpse of DiLorenzo's dizzying intellect, which I will quote in its entirety to avoid any accusations of tampering. He speculates that had Lincoln allowed the southern states to peacefully leave,

[a]fter a number of years, the same reasons that led the colonists to form a Union in the first place would likely have become more appealing to both sections, and the Union would probably have been reunited. 

After that, knowing that secession was a real threat, the federal government would have stuck closer to its constitutional bearings. The mere threat of peaceful secession would have had that effect on it. Its imperialistic tendencies and the large tax increases necessary to finance such adventures would have been checked. We may never have had a Spanish-American War. We may also have never had a president like Woodrow Wilson, who was so eager to involve Americans in a foreign war. Economist Han-Hermann Hoppe argues in a recent book that if America had not intervened in World War I, the European monarchies would have eventually worked out a peace agreement that was not so punishing on Germany, and that may have even precluded the rise of the Nazi Party, which itself was partly a reaction to the Versailles treaty of World War I. (p. 272-73)

Yes, DiLorenzo traces the Holocaust back to Abraham Lincoln. But why stop with Lincoln? This sort of reasoning can trace infinitely back to any person. Which only demonstrates how malleable and faulty this sort of historical analysis is.

DiLorenzo opened his book claiming that "much of what has been written about Lincoln is a myth." (p. 1) Whether true or not of others, DiLorenzo ensures that it is a self-fulfilling prophecy for his own work, not only for Lincoln but also for the Constitution, the founding generation, and Andrew Jackson. His premise is simply too neat and tidy to be considered a serious history.

The “Liberty” Amendments: A Review

My first introduction to Mark Levin came quite a few years ago when I picked up a copy of his Men In Black: How The Supreme Court Is Destroying America from my local library. I had heard good things about the book through various conservative circles and articles, and was intrigued.

I was not impressed. At all. I finished convinced that Levin was an intellectual lightweight, more interested in airing dirty laundry than in engaging in true political or legal discussion. What’s more, his critique of judicial review (more about that in a minute) convinced me—a lowly undergrad at the time who had merely scratched the surface of Constitutional law—that he didn’t know what he was talking about.

I ran across Levin again some few years later, when at a homeschool conference a high-school student in the booth next to mine was extolling Levin’s Liberty and Tyranny: A Conservative Manifesto while simultaneously defending the Confederacy as not being about slavery and lambasting Abraham Lincoln. Again, I was unimpressed. And while I don’t listen to talk radio, I have heard that Levin has quite the reputation for being less than civil to his callers, elevating noise over discourse.

So imagine my surprise when I found out that my alma mater’s Chancellor (and my first Constitutional Law teacher) was joining forces with Levin in advocating calling a convention of states to amend the Constitution. My skepticism piqued, and I decided to read Levin’s most recent book: The Liberty Amendments: Restoring The American Republic.

Maybe I had underestimated Levin. After all, he has a JD, practiced as an attorney, and was Chief of Staff to President Reagan’s Attorney General Edwin Meese. That alone makes writing him off as a legally ignorant hack more difficult.

Unfortunately—at least, unfortunately for Levin—my opinion after reading his latest bestseller remains unchanged. No, strike that. It solidified. If the book wasn’t borrowed, it would be full of scribbles (and not the friendly kind); as well as dents from when it would have gone sailing across the room.

In short, Levin is the sort of polemical hack who sounds compelling only insofar as his audience doesn’t know what he’s actually talking about. He has just enough truth, uses just enough facts, and blurs over just enough nuances, that he pulls off sounding convincing. Give me a well thought and intellectually honest liberal whom I can heartily disagree with any day. There are reasons I respect people like Nicholas Kristof and Tony Blair and will read The Atlantic over many “conservative” publications.

But anyway, back to Levin and his plan to save us all. The starting point of his book is actually based on a prior book Ameritopia: The Unmaking of America which had as its premise that we are living in a “post-Constitutional society.” “The Liberty Amendments,” then, is his grand scheme to, well, as the subtitle states it “Restore[] the American Republic.”

And this was my first red flag. Levin’s entire thesis is about restoration; about some undefined golden era in our past that needs to be be recaptured. America, he writes,  must be rescued from the “statists,” the “progressives” (likely the progressive statists), and most of all, President Obama. (I’ll go out on a limb here and say that the latter problem will disappear sometime in early 2017). Those political views are the ones that have hijacked our destiny and are preventing us from utopia/golden age/our best life now.

This is likely my own progressive side speaking, but I've noticed that time, after all moves forward. Cultures change. Local and global politics shift. Even if there were a golden age to restore (something I increasingly doubt the more I study history), such restoration would be impossible and trying to usher it in would result in a failed and painful attempt to “fundamentally transform” the nation (a phrase that terrifies this stripe of conservatives when the President used it, but which they so often secretly wish to do themselves). In short, however much I believe in learning from the past, nostalgia makes a poor political starting point.

The second main problem is Levin’s approach to the Constitution. And while he is not alone in this failing, it very much comes to the forefront in his book. Levin views the Constitution as predominantly a policy guide instead of a set structure that contains policy debates.

However, this is not fundamentally what the Constitution does, nor is it what it was intended to do. While it does have some outright prohibitions on uses of powers, and the Bill of Rights certainly adds to this element, at its heart the Constitution is about allocating powers vertically (federal/state) and horizontally (three branches). Whether those powers would be used for good or ill by their respective branches is something left to the political process itself. As Franklin famously quipped, they’d given the people a republic “if they could keep it.”

Consequently, the Constitution is not and ought not to be used as the end of political discussion. Plenty of bad policies are constitutional, and I’d even dare to suggest that a number of good policies may be unconstitutional. If it is a liberal failing to shoehorn every policy preference into the constitution, it is an equally damaging conservative failing to categorically label every disliked policy “unconstitutional.” Neither treats the Constitution properly, which is to view it as laying out the fundamental rules of the game while allowing the various actors to play it out.

Levin’s proposals largely fall into this trap. He disagrees, for example, with the budget process, so he seeks to chain it down more—reclassifying debt from simply bad policy to unconstitutional. To correct perceived overreach, he guts the commerce clause. He writes the specifics of tax code—down to the filing date and percentage of GDP that can be spent—into the Constitution. He would add a constitutional requirement for photo-ID for voting, as well as a constitutional prohibition on using “Electronic or other technology-based voting systems … unless a reliable identification and secure voting regimen is established by the state legislature.” In all, Levin proposes eleven amendments, which constitute 50 sections and over 1,950 words. The original Constitution has only about 4,500 words and 24 sections. Including the Bill of Rights, we’ve since added 27 amendments constituting 49 sections and just over 3,000 words. In short, Levin’s proposal equates to nearly 50% of the original Constitution and rivals the sum total of 226 years of Constitutional amendment. Calling them "amendments" in this context may be an understatement.

The result of these amendments is not to restore the Constitution to its true form, but instead to write specific policy positions into the Constitution instead of leaving them up to the legislative process. Chief Justice Marshall, himself of the founding generation and a member of the Virginia delegation that ratified the Constitution, specifically criticized this approach in McCullogh v. Maryland:

A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language.

Seeking to change the rules by writing detailed policy into the Constitution signals an inability to win electorally, and there is actually something fundamentally undemocratic about it. It's a surrender of the policy realm. In effect, Levin’s proposals stem from the presumption that the Framers’ vision failed. “We the People” cannot be trusted to elect good representatives, republican democracy doesn’t work, politics is ineffective, and what is needed is a structure that mechanically works regardless of who is elected. That’s a valid position to take, but it’s intellectually dishonest to say that such a position is something the Founders would agree with.

Furthermore, state constitutions have already tried using their constitutions as policy manuals with less than appealing results. G. Alan Tarr, in his book Understanding State Constitutions, devotes the entire first chapter to this distinction between the federal Constitution and state constitutions.  He notes: “Relatively few provisions of the federal Constitution directly address public policy issues, although the Constitution’s grants of power can be interpreted as suggesting the purposes for which national power is to be exercised. State constitutions, in contrast, deal directly with matters of public policy, sometimes in considerable detail.” He then goes to note that state constitutions are considerably less stable than their federal counterpart. While the federal constitution has been amended less than once per decade since the Bill of Rights:

[T]he American states have regularly revised and amended their constitutions. Only nineteen states still retain their original constitutions, and a majority of states have established three or more. Louisiana’s current constitution is the state’s eleventh, and Georgia its tenth. The level of constitutional amendment likewise underscores the states’ willingness to initiate formal constitutional change. As of 1996, over 9,500 amendments had been proposed to the states’ current constitutions and over 5,900 adopted—an average of almost 120 amendments per state. The Alabama Constitution of 1901 has been amended over 580 times, and the California Convention of 1879 almost 500 times. Even these figures, impressive as they are, substantially underestimate the states’ propensity for constitutional tinkering, because they omit amendments and proposed amendments to the states’ earlier constitutions. For example, in 1980, three years before adopting a new constitution, Georgia submitted to its voters 137 proposed amendments—16 general amendments and 121 local amendments; and Louisiana’s constitution of 1921 was amended 536 times before its replacement in 1974.

I think these two developments are related. While elevating every policy question to a constitutional plane may appear to solidify the position, in reality it drags the constitution down to the level of policy arguments, lessening its authority and lasting influence, and making it much more difficult to understand. If we treat the Constitution as the tax code, it will soon look like the tax code. Try reading your own state constitution if you doubt this.

Third and finally, is Levin’s confusion about both the source of the problem and how it relates to the separation of powers. This is particularly evident in his discussion of the Judiciary. And if you thought my second point was involved, trust me, I’m holding back here.

Take the example of Legislative delegation of power to the Executive to craft regulations. Yes, Congress is irresponsible when it does this. But again more often than not the Executive action is a symptom of Legislative dereliction. Someone, after all, needs to administer the laws, and the Legislatures’ poor drafting doesn’t excuse the Executive from his duty to enforce. If the Legislature can’t or won’t draft the law clearly the first time and can’t or won’t rouse itself to amend the law (and thereby supercede all regulatory rules stemming from the obsolete law)—both of which are exercises of preexistent powers—why should I believe that it would properly exercise this new power to invalidate regulations? Giving more power to the very branch that, according to the book’s premise, can’t be trusted with the power it has, is simply inconsistent. But it’s what happens when one fails to identify the problem and instead relies on partisan talking points.

On the other hand, there are times when the Legislature is over eager to exercise powers it doesn’t have. Levin identifies some of these. Yet in an odd twist, Levin still somehow fails to lay the blame with the Legislature and instead claims it belongs with the Judiciary.

But first let me first explain judicial review, which is the idea that a court can declare a law unconstitutional and void. Hamilton sums up the rationale for this doctrine well in Federalist 78:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. 

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This is why the powers are separated, to minimize Legislative influence on the Judiciary's review. This is the same reasoning adopted by Chief Justice Marshall in Marbury v. Madison, which was the first time the Supreme Court addressed this question. Levin specifically attacks the Marbury decision, as he did in his prior book "Men in Black," writing that it “claim[ed] authority not specifically granted in the Constitution,” “altered and extended the Court’s limited authority,” and “snatched the authority” to interpret the Constitution.

Oddly enough, President Obama seemed to channel Levin’s very argument just prior to the Obamacare decision when he stated “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” Needless to say, the President was roundly criticized for those statements in conservative press, the same press that seems to overlook Levin’s argument coming to the same conclusion.

In short, Levin’s critique of the Court is twofold: First, he condemns the court for seizing power that it doesn’t have under the Constitution (judicial review). Second, he then condemns the Court for not exercising the very power that it in his view unconstitutionally seized, with the New Deal and Obamacare cases being his primary examples. The two critiques simply cannot both be true under the Constitution, yet Levin never even recognizes the conflict.

His confusion comes from a failure to understand the Judicial branch. Yes, the Supreme Court has failed to hold the Legislative branch’s expansion of its own powers in check. But the origin of that problem lies with the Legislature, not the Court. Had the Legislature determined that Obamacare were unconstitutional and accordingly not passed it, the Court would have never been involved. As it was, insofar as there was a Constitutional violation, the Court can only be blamed for failure to correct, not for the source. The power claimed was invented not by the Court, but by the Legislature.

But Levin’s solution demonstrates that he doesn’t grasp this. He proposes solving for judicial overreach (demonstrated, remember, primarily by judicial inaction) by giving the same Legislative branch that invented the unconstitutional power the additional power of overturning the Court’s decisions. Applied to the Obamacare for example, the Legislature could overturn the decision under this proposal. Which, in effect, would mean that the Legislature would determine that the Court was wrong in declaring that the Legislature was permitted to do what the Legislature did. Not only is it nonsense, but with a three-fifth vote requirement, is is actually harder than doing the straightforward thing and repealing the law at issue because the Legislature deems it unconstitutional. Levin is effectively asserting that the solution for ineffective guards is to let the inmates run the asylum. Neither the critique, nor the solution, actually makes much sense.

Levin's proposal that the states likewise have a Constitutional override runs into the same problem, where the states would be permitted in continue to act unconstitutionally if enough of them agree. History may show that the Court isn't always the best keeper of the Constitution; but it also shows that the States and Legislature are no better. In fact, since every unconstitutional act reviewed originates in a legislative body, I'm inclined to say that the Legislature and states have a demonstrated history of being worse keepers of the Constitution than the courts.

But believe it or not, it gets better. Because Levin’s solution to our political problems is his nearly 2,000 word restoration to the Constitution, dictating in detail such policy matters as voting requirements, budget cap in relation to GDP, dollar amounts for regulations that must be approved by the Legislature, Legislative and party makeup of regulation review committee, and level of regulation that becomes a property taking. If the Congress or the Executive thumb their noses at these new requirements, or even interpret them differently than Levin thinks they mean, what will he do?

Well, he doesn't say. But I can imagine he (or someone else) would file suit to ensure their proper enforcement.

Yes, he’ll appeal to the very branch that properly (although he disputes this) has the authority to enforce these provisions. He’ll do it after laying most of the blame for our constitutional troubles at their feet and denying that they have the authority to do what he asks them to do.

And if he prevails, he’d better pray really hard that three-fifths of the Legislature doesn’t think otherwise.

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Finding out what's in it

During the healthcare debate, Representative Pelosi infamously stated that "we have to pass the bill so that we can find out what is in it." You can see the clip here.

The comment sounds silly, as if those voting on legislation didn't know what was going to happen.

So imagine my surprise when I found James Madison making a very similar (although more verbose) argument about adopting the Constitution. Here he is in the Federalist 37 (sorry, no video available). After stating what a miracle it was that the Constitutional Convention could agree at all, he turns to those who are demanding more clarity from the proposed Constitution:

Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science. 

The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.

Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and State jurisdictions, must have experienced the full effect of them all.

Now granted, there is still quite a difference between Madison's argument and Pelosi's. Madison is saying that they were as clear as language permitted, while Pelosi was simply dodging a question about poor policy writing. Madison was not hiding behind poor drafting, but instead arguing that the drafting was as good as possible even if it wasn't always as clear as some wanted.

I think Madison's point is well worth remembering. He notes that even in what was likely considered one of the most legally advanced nations at the time and in large part a model for the drafters--Great Britain--the laws still needed to be worked through after passage to determine what exactly they meant. Madison reminds us that even the Constitution is subject to this limitation of language.

Homeschooling, Asylum, and the Attorney General

Dear homeschooling community:

Despite what you may have heard, the arguments presented by the Department Justice in the case involving German homeschoolers do not pose a direct threat to your homeschooling freedoms.

Over the last few weeks I’ve watch as, in a game of online telephone, this story has evolved from HSLDA’s Mike Farris’ musings, to the question of whether domestic homeschooling rises or falls with this case to, finally, “Holder vs. home schooling.”

Unfortunately, in the hysteria, the actual issue at stake seems to have been lost.

As a brief background on the case, in January of 2010, an Immigration Judge granted asylum to the family. The Department of Homeland Security appealed that decision to the Board of Immigration Appeals, which reversed the Immigration Judge in May of 2012. The family has now appealed to the Sixth Circuit Court of Appeals and is awaiting a decision. Once that decision is made, the losing side can request the Supreme Court for review.

Three primary issues need to be remembered as we think about this case.

First, the dispute is not really about constitutional rights. Yes, parental rights are considered a fundamental constitutional right here in the United States, but that is largely beside the point. Since the German state is not bound by our Constitution, whether it has “violated” it or whether its actions would be permitted if conducted by a US political entity is immaterial. Germany, as a sovereign political entity, has the authority to make the laws governing German citizens.

Asylum, in a general sense, is inherently a check on sovereignty. And it must be couched in such terms. More than a mere preference, it is a statement that the oppressing state acted in an illegitimate manner toward its citizens. This transfers the debate about homeschooling from one of US Constitutional rights (which are largely irrelevant to asylum claims) to one of international human rights.

As I’ve written before, there is support for parental choice in education being a peremptory human right. That, and not domestic constitutional rights language, is where the debate lies. This case does have the potential to make a large impact on the status of parental rights in the international sphere, and for that reason I’m hopeful that the family wins. But even if the family loses, Eric Holder won’t be sending out SWAT teams to round up US homeschooling families.

Second, the litigation is not concentrated on whether the homeschooling family is wanted, is desirable, or would otherwise make a positive contribution to the nation. It is not about whether the family should or can homeschool here. The government is not attempting to deport them because they homeschool. Instead, the question is whether Germany’s denial of the family’s right to homeschool makes them a “refugee.” If it does not, they do not have legal immigration status and, like all others without status, they would be required to leave or find some other way to obtain status.

To qualify as a refugee the family must show that they are someone “who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA 101(a)(42)(B); 8 USC § 1101(a)(42)(B).

This definition is easily broken into two parts, the treatment part (persecution) and the prosecutor's motivation (“on account of...”). Even if “persecution”--which Congress never bothered to define--is shown, only certain types of persecution make one eligible for asylum. The persecuting government must be doing the persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.”

The litigation before the Sixth Circuit includes parts of both elements. First, the government is making the case that Germany’s treatment of the family does not amount to persecution. Under the legal standard, not every form of mistreatment constitutes persecution. It must reach a certain level of seriousness--often including physical beatings or threats of death. However, it can also include economic coercion. For the German family, even the initial Immigration Judge who granted asylum did not find that they had suffered past persecution. However, he did find that they had a well-founded fear of future persecution based on Germany’s treatment of homeschoolers in general.

But persecution aside, the family also has to show that they were targeted on “on account of race, religion, nationality, membership in a particular social group, or political opinion.” Race, nationality, and political opinion are not even being argued, so the only two arguments the family is using are religion and membership in a particular social group. Religion is tricky, since while the law does interfere with their religions beliefs, it is a general law that does not single them out or in any other way target them. Social group is the other argument, but that term is so loosely defined and unclear that there is little hope to avoid litigation when asserting it. That German homeschoolers are a particular social group is certainly a strong argument, but it is not one that asylum law has previously recognized, so it should not be surprising that DOJ would resist.

And asylum claims against general laws are often unsuccessful, the most notorious example being the BIA’s 1989 holding that those fleeing China’s one-child policy were not eligible for asylum (in 1996 the asylum definition was specifically amended to fix this). Conscientious objectors to a general draft law have also been denied. The rationale here is that states have authority to pass laws that apply to everyone, and absent something extreme, enforcing that law is not persecution on account of one of the protected grounds.

So, although one can characterize the government’s motivations in continuing the litigation as opposition to homeschooling, it is just as easy to interpret it as a strict adherence to our immigration laws. And isn’t that something conservatives want?

Third, it is dangerous to impose personal motivations on the attorneys or departments based on their positions. If this approach were viable, then the following conclusions must also be drawn:

• That the Reagan/Bush administration welcomed China’s one-child policy (asylum denied, 1989).

• That the Clinton administration endorsed husbands brutally beating their wives (asylum denied).

• That the Clinton administration (and now-Justice Alito) support Iran’s discriminatory treatment of women (asylum denied, 1999-2001).

• That the Clinton administration backed rape by guerrilla forces (asylum denied, 1999).

• That the Bush administration, and specifically Attorney General Ashcroft, supported child soldiers in Uganda (asylum granted by Third Circuit, but DOJ litigated against, 2003).

• That Attorney General Ashcroft endorsed female genital mutilation (asylum granted by Sixth Circuit, but DOJ litigated against, 2004).

• That the Bush Administration somehow wanted the death of Edgar Chocoy, the Guatemalan teen who escaped a gang with a price on his head, made it to the United States, and claimed asylum. His claim was denied and he was returned to Guatemala. He was shot to death one week later.

And that is only a small sample of the asylum cases either denied or objected to by the US government over the past thirty years. DHS/DOJ routinely denies or opposes asylum claims from those who believe they are going back to situations much worse than the German family. That is their job.

Please don’t get me wrong. Germany is violating peremptory human rights in its denial of homeschooling freedoms, and the family should be granted asylum. But the mere fact that the attorneys at DOJ oppose what they see as an expansion of asylum law--as they routinely oppose situations much worse than this--is no grounds to vilify them.

If anything, the litigation calls into question whether our asylum law is too strict.

Immigration Debate Groundwork

One of the difficulties in having a national debate over immigration issues is the confusing nature of our immigration policy. So to help solve part of that problem, here is some foundational information about our immigration system.

• Immigration is a distinctly different process than naturalization. The former gives legal permanent resident (LPR) status (also known as a green-card). The latter bestows citizenship. With very few exceptions (such children adopted by US citizens), an alien must first be a legal resident for a set number of years before he can apply for citizenship. Bestowing legal residence is not the same as bestowing citizenship. Popular discussions often confuse the two.

• The Constitution nowhere gives the federal government power to establish or enforce an immigration policy. It only addresses naturalization. (Article 1, Section 8, clause 4.) When faced with this issue, the Supreme Court upheld the power of the Federal Government to exclude and remove aliens as part of inherent sovereignty. See Chae Chan Ping v. United States, 130 U.S. 581 (1889) and Fong Yue Ting v. United States, 149 U.S. 698 (1893). For a bit of interesting historical trivia, Justice Field, who authored the 1889 opinion finding authority to exclude aliens dissented from the 1893 opinion finding authority to deport them.

• The United States had virtually open borders for almost its first hundred years. The first substantive immigration restrictions, excluding criminals and prostitutes, were adopted in 1875. The first categorical restrictions, excluding Chinese, were adopted in 1882 (these were the ones challenged on Constitutional grounds). The first numerical limitations on immigration were adopted in 1921.

• Most immigration violations are administrative matters, not criminal violations. The only “sentence” an immigration judge can impose is deportation. Consequently, illegal immigrants, by and large, are not “criminals” and cannot be treated as such. See Wong Wing v. United States, 163 U.S. 228 (1896). However, because these are not criminal proceedings, the aliens involved do not benefit from criminal due process protections (such as the right to state-paid attorney or innocent until proven guilty, among others). Instead, it is a much more streamlined setting; and the burden of proof is always on the alien.

• With very few exceptions (asylum, lottery, and those with special skills being some of the larger ones), aliens cannot petition to enter the United States. Instead, they need either a relative or an employer to make the petition on their  behalf. Aliens who have neither here legally are out of luck. This means that for many, there is no line to get into.

• For those who can get a petition filed on their behalf by a family member, the type of relationship determines which line they go into:

• Spouses and children of US Citizens: no cap/no wait
• Unmarried sons or daughters (over 21) of US citizens: 7 year wait
• Spouses and children of permanent residents: 3 year wait
• Unmarried sons and daughters (over 21) of permanent residents: 8 year wait
• Married sons and daughters of US citizens: 11 year wait
• Brothers and sisters of US citizens: 12 year wait

If a child ages out of a category or otherwise loses qualification (gets married) prior to the application being processed, they lose their place. Notice that there are no sponsorships available for married children or siblings of LPRs. Also, because we still have some country limitations, the wait can be longer for those from China, India, Mexico, or the Philippines. For example, right now, applications filed in 1989 on behalf of US Citizen siblings in the Philippines are just being processed. Yes, that is a 24 year wait list.

• Those sponsoring immigrant family members must fill out an affidavit of support, demonstrating sufficient income so that the immigrant will not resort to public assistance. This is a legally binding contract, and the sponsor can be required to pay back any public assistance the immigrant does use. Additionally, the likelihood of being a public charge is grounds for exclusion, and actually becoming a public charge after entry can result in deportation.

• For those taking the employment route, unless they have exceptional abilities or advanced degrees, the wait is 6 years.

• Employers sponsoring immigrant employees must first go through a labor certification process with the Department of Labor, certifying that there are no US workers who can or will do the job.

• For those over eighteen who have been here illegally for over a year, there is a 10 year bar on applying. This is added to the above wait times. For those who have crossed the border without inspection twice, even if they were minors accompanying their parents, there is a lifetime bar. Absent a waiver, they can never be admitted legally.

• President Obama’s “amnesty” (Deferred Action for Childhood Arrivals, or DACA) merely uses prosecutorial discretion to not pursue or deport immigrants who entered illegally as minors (provided certain other criteria are met). This administrative procedure predates Obama. It was brought into the limelight in the 1970's by none other the Beatle John Lennon, who used it to avoid deportation on drug charges.

Immigration policy debate has been lurking under the headlines ever since the election, when the Republicans discovered that for some reason, their anti-illegal immigrant rhetoric didn’t resonate well with those whose friends and relatives are illegal. This week a bipartisan group of Senators outlined their reforms. It will be exciting to see where this goes next.