Justice, Compassion, and the Dreamers

DACA controversy reveals conflict between blind justice and broad compassion

Fresno Bee, September 8, 2017

The reconsideration of DACA presents an example of the conflict between justice and compassion. It also shows us the conflict between a narrow conception of our obligations and a broader point of view.

Justice requires impartial application of rules. The goddess of justice is blind. She administers law without considering the identity of those who receive her decisions. Justice is a goddess of the public sphere. She demands that we extend moral concern universally, fairly, and without exception.

Compassion operates differently. The goddess of compassion opens her eyes and her arms. She attends to people’s concrete situations, making exceptions for the disabled, the displaced and the disadvantaged. The motherly goddess of home and hospitality focuses on individual identity and relations of care.

Compassion and justice disagree whenever there is a conflict between mercy and rule-following. Justice requires equal treatment and unbiased judgment. Compassion makes exceptions for special needs and mitigating circumstances.

The DACA debate asks whether we should extend compassion to the children of immigrants who did not knowingly violate the law when their parents brought them here. Justice may ignore this fact and simply apply a rule that says if you are not here legally, you must leave. Compassion begs us to consider that these young people have no other home to return to and bear no responsibility for their predicament.

President Trump’s statement about DACA uses moral language. But he prioritizes compassion for Americans, saying, “We must also have heart and compassion for unemployed, struggling, and forgotten Americans.” He admits there is something unfair about punishing children for the actions of their parents. But he said that fairness for American citizens was his first priority. He explained, “Before we ask what is fair to illegal immigrants, we must also ask what is fair to American families, students, taxpayers and job seekers.”

Trumpian morality applies compassion and justice in a limited nationalistic way. This fits with the president’s America first agenda.

Moralists have often criticized this kind of nationalism. The goddesses of justice and compassion are not national deities. Morality universalizes.

Justice and compassion extend across borders. The goddess of justice is blind even to national identity claims. And the “mother of exiles” – as the Statue of Liberty has been called – opens her arms to the world’s homeless and huddled masses, yearning to breathe free.

ANY RESOLUTION WILL REQUIRE US TO THINK CAREFULLY ABOUT THE NATURE OF LAW AND MORALITY.
IT WILL ALSO REQUIRE US TO REFLECT ON WHAT IT MEANS TO BE AN AMERICAN.

It is not surprising that American religious leaders responded with dismay to Trump’s announcement. The U.S. Conference of Catholic Bishops condemned Trump’s decision. The bishops wrote, “Today’s actions represent a heartbreaking moment in our history that shows the absence of mercy and good will, and a short-sighted vision for the future.”

Mercy and good will are the heart of the ethics of compassion. The bishops extend this globally, applying the commandment to love one’s neighbor in a universal direction.

Trump and his supporters reject this view of morality. They also discount the religious critique of this policy. Steve Bannon, Trump’s former chief strategist, said that limiting immigration was a matter of “national sovereignty.” He also said that the Catholic church has “an economic interest in unlimited immigration,” suggesting that the church wants immigrants to fill pews and coffers.

The president and his supporters have also claimed that Obama’s Deferred Action for Childhood Arrivals program was unconstitutional. They want Congress to take action. But hundreds of law professors, governors, and other legal and political leaders have argued that DACA is constitutional.

The constitutional question is related to the moral question. Does our legal system require strict impartiality and blind justice or does it permit discretion and compassion? Is the Constitution a system that puts America first and focuses only on questions of national sovereignty? Or are there values in our constitutional system that point in a more cosmopolitan direction?

These are not easy questions to answer. We disagree about religion, morality, and the Constitution itself. These conflicts run so deep that they may never be resolved.

But any resolution will require us to think carefully about the nature of law and morality. It will also require us to reflect on what it means to be an American.

http://www.fresnobee.com/article172036532.html

Trump and Machiavelli

Machiavelli and Trump are brothers, bullying their way to power

Fresno Bee, November 12, 2016

Donald Trump’s victory demonstrates that virtue is not necessary for political success. For those who value virtue, Trump’s victory comes as a blow. But we should not be surprised.

We’ve known that virtue is irrelevant to politics since Machiavelli first explained how princes obtain power. A Machiavellian leader is bold, shameless and aggressive. He is not constrained by truth or morality. He gains power using fear, threats and false promises.

And it works. The people love their Machiavellian princes. He flatters their egos and fulfills their desires. The people can quickly turn against him, since their loyalty is based on mercurial emotion. So once the prince takes power, he must continue to manipulate desire and fear, pride and hope.

In his victory speech, Trump claimed he wanted to “bind the wounds of division.” He said, “It is time for us to come together as one united people.” He said he wants to be president for all Americans.

Those words ring hollow for those who remember his divisive campaign. But most people have short memories. And we want to believe him. We also want to believe that there is a united America, despite the deep and obvious divisions that Trump’s victory exposed.

The red states throb in the middle, while the blue states hug the coasts. In California, the Valley bleeds red (with the exception of faintly fuchsia Fresno). But in the true blue Bay Area they are already marching in the streets, yelling “not my president.”

Our disagreements run so deep that Trumplandia must seem a foreign country to the liberals of Berkeley or Westwood. We disagree about the death penalty, abortion, homosexuality, climate change and so on. Some believe in Jesus, others in Mohammed, and some in science. Thankfully, the Constitution allows us to co-exist without killing each other.

But it is inevitable that Americans will continue to take to the streets, the courts and the ballot box. If our team wins, we praise the inherent wisdom of the voters. If our side loses, the system must be rigged. And off we go again.

TRUMP IS THE ULTIMATE MACHIAVELLIAN –
A PARADIGM CASE OF HOW POWER COMES TO THE BULLY WHO GRABS HER BY THE CROTCH.

This generation did not invent political turmoil. Nor did we invent lying, corruption, racism, misogyny, murder or war. Human beings have always been venal and vicious. And Machiavelli has always been watching from the wings.

Republicans obstructed Obama. Democrats hated George W. Bush. Clinton was impeached. Reagan was shot. Nixon resigned. Unprincipled opportunists often rise to power in both parties.

Nor has our polity ever been at peace for long. First-time voters already have witnessed Black Lives Matter, Occupy Wall Street, wars in Iraq and Afghanistan and 9/11. Each generation has its riots and revolutions. There are more to come.

The Greek philosopher Heraclitus explained that war is the father of all, and strife is necessary and common. Machiavelli would agree. He described Fortune as a two-faced female dog who must be beaten into submission. A successful prince rides the wild beast of political discord, holding on long enough to triumph.

The ugly truth is that Machiavellians often prevail. They understand that we define ourselves in opposition to others. They manipulate our hatreds, loves, fears and desires. They pander and cajole, soothe and provoke – as it suits their purposes.

There is no permanent solution to this problem. Education can help. But the will to power cannot be eliminated. It can only be channeled and directed by laws and social norms.

Unfortunately, our social norms have been weakened by TV, Twitter and internet trolls. We succumb to shysters and charlatans. And we tolerate outrageous behavior.

IF OUR TEAM WINS, WE PRAISE THE INHERENT WISDOM OF THE VOTERS.
IF OUR SIDE LOSES, THE SYSTEM MUST BE RIGGED.

This is a bipartisan problem. If Trump had lost, Republicans would lambast the Clinton machine. But Trump is the ultimate Machiavellian – a paradigm case of how power comes to the bully who grabs her by the crotch.

It’s going to be a long four years. The comedians are licking their chops. The critics are sharpening their knives. And we’ve got a lot of thinking to do.

We ought to begin by reading Machiavelli. But then we ought to dust off the Constitution and the Federalist Papers. The only known antidote to Machiavellian disease is a division of powers, a system of checks and balances, and the right to protest, criticize and think for ourselves.

Read more here: http://www.fresnobee.com/living/liv-columns-blogs/andrew-fiala/article114066188.html#storylink=cpy

Impeachment, The Constitution, and Civics

Is the United States heading for an impeachment crisis?

Fresno Bee, September 10, 2016

 

Democracy is both inspiring and appalling. This year in California we will vote on initiatives involving the death penalty, firearms, taxes and health care. We also will vote on whether marijuana should be legal and whether porn actors should wear condoms.

There is no guarantee that voting will produce wise and virtuous outcomes. Porn addicts and potheads will cast votes alongside priests and police officers.

The national race does not inspire confidence in the electoral process. The primaries have given us two flawed candidates for president. Each accuses the other of mendacity and incompetence. With this level of animosity before the election, dysfunction likely will follow. Some commentators have suggested that there will be an impeachment crisis in the next few years, no matter who gets elected president.

Democracy can produce good outcomes. Smart and sincere voters can elect virtuous officials who are dedicated to the common good. But the fact of diversity means that we will disagree about what we mean by virtue and the common good. And so democracy also gives us gripes, grievances and gridlock.

THE PRESENT ELECTION PROVIDES A WONDERFUL TEACHABLE MOMENT. CIVICS EDUCATION INCLUDES A DISCUSSION OF THE VIRTUES AND VICES OF DEMOCRACY AS WELL AS ANALYSIS OF THE STRUCTURE AND HISTORY OF THE CONSTITUTION.

Philosophers have often criticized democracy. Plato warned that democracy can quickly turn to tyranny, as the people elect tyrants who make populist promises while plotting to take advantage.

John Adams, our second president, shared Plato’s worry. He warned about the dangers of direct democracy. He said: “Remember democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet, that did not commit suicide.”

The framers of the U.S. Constitution tried to remedy the flaws of democracy by giving us mixed government with a separation of powers. That idea goes all the way back to the ancient Greeks. A mixed government is not very efficient. But it aims to prevent tyranny by frustrating the machinations of those who lust for power.

Another remedy focuses on educating citizens. This idea was dear to Thomas Jefferson. In a letter to James Madison in 1787, Jefferson wrote that education of the common people is the best way to secure liberty.

A similar argument is made in a forthcoming book by educational and moral theorists Nel Noddings and Laurie Brooks. The book “Teaching Controversial Issues” maintains that critical thinking and moral education are essential for democracy.

NO NATION IS PERFECT.

The authors argue that democratic schools should encourage critical thinking rather than blind obedience. We need to give young people the tools to analyze and evaluate controversial topics, while inspiring them to remain committed to the common good. The goal “is to develop thoughtful, well-informed citizens for a participatory democracy.”

The present election provides a wonderful teachable moment. Civics education includes a discussion of the virtues and vices of democracy as well as analysis of the structure and history of the Constitution.

It is easy and fun to celebrate the myths of uncritical patriotism. But the truth is more complicated. No nation is perfect. There are no utopias. The flaws in political systems reflect flaws in human nature. People are not perfect. Nor are the systems we construct.

On Sept. 17, 1787, when Benjamin Franklin made a motion to approve the Constitution, he acknowledged that there was no perfect constitution. Human beings always bring with them “their prejudices, their passions, their errors of opinion, their local interests, and their selfish views.” So no human constitution can ever be perfect.

But rather than leaving us discouraged, this should invigorate us. There is work to be done to improve the world. In the end, we get the democracy we deserve. We build the world we live in with our questions and criticism as well as our votes.

Read more here: http://www.fresnobee.com/living/liv-columns-blogs/andrew-fiala/article100862147.html#storylink=cpy

Good Citizenship Takes Commitment

Citizenship and The Constitution

Fresno Bee, September 4, 2015

 

No one is born a citizen. Our Constitution allows so-called “birthright citizenship.” But no one is born understanding the Constitution. Real citizenship requires active commitment to the values of the community.

That’s why civic education is important. Some states have instituted mandatory civics test, requiring high school students to score 60% on the U.S. Citizenship test, the same score required for immigrants to qualify for U.S. citizenship.

In California, State Superintendent of Schools Tom Torlakson and Chief Justice of the California Supreme Court Tani Cantil-Sakauye are leading a new civic education initiative. The chief justice explains, “The strength of our democratic institutions relies on the public’s understanding of those institutions.” Civic Education Partnerships have been created in six counties, including Fresno.

Of course, knowledge about the Constitution is not sufficient. Citizenship is deeper than factual knowledge. It includes a set of values and active commitments. Can those values and commitments be created by education?

I talked about this with John Minkler, a retired educator who is one of the leaders in Fresno County’s Civic Education Partnership. Minkler’s passion for civics is evident from a bumper sticker on his car that reads, “E Pluribus Unum.” Minkler points out that we carry this motto in our pockets every day. Take a look at your coins. They proclaim, E Pluribus Unum – “out of many, one.”

This is the basic idea behind the social contract: we join together to form a community. Individuals reap benefits from belonging to the community. We also have obligations to participate in the life of the community.

Minkler worries, however, that the social contract has eroded. One problem is materialistic individualism. We are often more focused on self-interest than the common good. A related problem is an educational system that focuses on test results and obedience rather than engaged citizenship.

Many have become disillusioned with political life. Young people are especially cynical. Studies show that millennials are less politically aware and committed than older adults. They vote less and don’t trust the political system.

Critical scrutiny of our system is wise. Democratic government requires vigilant citizens. But cynical disengagement is self-defeating. If you believe you can’t change things, then you will not work to change them. And then – lo and behold – things don’t change!

Minkler explains that citizenship develops from involvement in the community, which teaches that individual commitment matters. Minkler has long been an advocate of service-learning. He says that service-learning helps disengaged kids develop the spark of citizenship, as they discover that their effort and commitment actually matters.

Teachers and schools already have a difficult task of developing college- and career-ready graduates. Creating good citizens is yet another difficult task. We can’t expect the schools to do this alone. That’s why the idea of a Civic Education Partnership is important. In Fresno County, the Civic Education Partnership includes educational leaders, business and community leaders, as well as members of the legal profession.

To support this effort, the Ethics Center at Fresno State is co-sponsoring a Constitution Day event at Fresno State on Sept. 17. In case you forgot, Sept. 17 is the anniversary of the signing of the Constitution. Around the country, that day is celebrated as Constitution and Citizenship Day.

The event at Fresno State will focus on the question of how civic education connects youths to our constitutional system. Speakers will include former Assemblyman Juan Arambula, Fresno City Council Member Esmeralda Soria, Lorenzo Rios, CEO of Clovis Veterans Memorial District, Justice Rosendo Peña, Jr. from the California Fifth District Court of Appeal, Deborah Nankivell, CEO of the Fresno Business Council, and Minkler.

Citizenship involves understanding the Constitution and the basic principles of democratic government. It also requires commitment and engagement. Communities are not abstract ideas created on paper documents. They are living entities in which diverse individuals work together within a framework of common values. No community is perfect. But communities are improved when citizens understand their rights and responsibilities, and when individuals actively participate in the shared life of “we, the people.”

Read more here: http://www.fresnobee.com/living/article34140597.html#storylink=cpy

Shutdown raises questions

Fresno Bee

October 4, 2013

http://www.fresnobee.com/2013/10/04/3535794/shut-down-raises-questions-about.html

We don’t really think about our tools until they break. The proper functioning of a car, for example, is simply taken for granted. But when your car breaks down, you may stop to wonder whether it is time to get a new one — or even to switch to a bicycle.

In recent days, it is the government that has had a breakdown. Is it time to replace the 225-year-old vehicle of the Constitution with a different one?

Thomas Jefferson once suggested, in a letter to James Madison, that no society can make a perpetual constitution. As Jefferson put it in 1789, the earth belongs to the living, not the dead. Each generation is entitled to reassess the rules and institutions under which it lives. Jefferson suggested that every 19 years or so, the previous constitution naturally expires.

But we venerate our good old Constitution, often forgetting that it was the result of compromise and war, produced by men who were not perfect. The “three-fifths compromise” is one notorious bargain, intended to get slave-holders to accept the document by counting slaves as partial persons. A brutal Civil War resolved the constitutional crisis caused by slave-holding states who challenged the power of the federal government.

But structural problems remain. Consider the system of representation. A compromise gives all states equal representation in the Senate, while state populations are more evenly represented in the House. This gives small states inordinate power in the Senate.

And some citizens have no representation in the Senate. Residents of the District of Columbia outnumber the residents of small states such as Wyoming or Vermont. But Vermont and Wyoming each get two Senators, while D.C. gets none. Similar lack of representation holds for citizens of Puerto Rico, whose population outnumbers that of dozens of states.

A further problem is that presidential elections occur through Electoral College votes. In combination with the winner-takes-all voting procedure, this gives inordinate power to swing states. And as a result, the popular vote for president does not matter.

There are other problems. Consider how odd it is to provide lifetime terms for nonelected judges, some of whom serve into their 80s. Or consider the fact that simple majorities among justices can overturn laws. Wouldn’t it make more sense for Supreme Court justices to serve limited terms — or to increase the number of justices, or to appoint justices by geographical region or to require more than a one-vote majority to overturn a law?

The Constitution does allow amendments. But the requirements of the amendment process are onerous. A two-thirds majority in both houses of Congress is needed to propose an amendment, which must be ratified by three-fourths of the states. In the era of two-party partisanship, amendments are rare. The last amendment lowered the voting age to 18 — in 1971. How many new cars have your purchased since 1971?

Other problems include the two-party system and the power of lobbyists and special-interest money. The outcomes and results have not been great in recent years: unjust wars, governmental spying, the use of torture, lobbying scandals, massive debt, biased enforcement at the IRS, economic inequality and now a government shutdown. The glitches and flaws in the system should incense both Republicans and Democrats.

Every school child learns that the three branches of government and the bicameral legislature create a system of checks and balances. This system does not facilitate seamless and speedy decision-making. Instead, this vehicle is built for safety and stability — by protecting the rights of individuals and minorities.

The current shutdown occurred is an example of this. A few representatives in one house of Congress manipulated the system. It depends on your perspective as to whether this is a good or bad thing. But the shutdown is legal and permitted by the Constitution.

Some may think that this indicates the need for a trade-in. The 19-year lease on constitutions imagined by Jefferson expired long ago. But perhaps we prefer our rusty, inefficient old clunker. Given our disagreements, we’d never be able to agree to a new make and model. In the meantime, let’s hope the congressional grease monkeys get our jalopy back on the road again soon.

Read more here: http://www.fresnobee.com/2013/10/04/3535794/shut-down-raises-questions-about.html#storylink=cpy