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The complete human rights disaster that is illegal immigration

Townhall Media/Julio Rosas

Time for one of Aaron Walker’s patented ‘take a few Tweets and write a long philosophical post about the subject’ type VIP pieces. This time I wanted to take a moment to talk about illegal immigration.

A bit back, I posted an episode of Tucker on Twitter where Robert Kennedy Jr. spoke eloquently about the illegal immigration problem from a human rights perspective. If you would like a refresher, here’s that video:

Twitter/X makes it hard for me to find a time stamp in the video, but I would say it is about three quarters of the way through. As I said at the time, ‘I have long approached the issue from a humanitarian viewpoint and what we are doing right now is a humanitarian disaster. [I am] tempted to write a separate post on that subject.’ Well, I saw a few Tweets that got a little deeper into the problem in the last few days and it made me want to talk about it.

But before I get started, a point of order. I am sick of people—even some on the right—adopting the new leftward terminology of ‘migration.’ Migration refers to travel within a thing, and when we talk about humans, we typically mean within a country’s borders. Immigration refers to coming into a foreign country. Like many examples of leftist newspeak, this terminology serves to impair communication because while people who travel within the United States might present their own problems, it is the people who cross our borders who create unique problems within this country and that is what we are talking about.

But just the other day I saw Tomi Lahren say this:

So, she seemed to believe that this would lead to illegal immigrants voting. But she’s missing the really dirty part about all of this. The dirty part of all of this is most of the time illegal immigrants will not be allowed to vote, but will still be counted in representation.

To see the problem more clearly, let’s talk about part of the Constitution that has been rendered inoperable: the three-fifths clause. Many people write bitterly about it, saying something like ‘under the Constitution, a black person was only considered three-fifths of a person.’ For instance, here’s the Washington Post saying that kind of thing:

And, dear reader, it was every bit as dumb as they suggested. The article suggests giving black people more ‘voting power’ than everyone else, including Asians, Native Americans and so on. The article mentions the Thirteenth Amendment and Fourteenth Amendment, but ignores that the Fifteenth Amendment would pretty much put the kybosh on that proposal, unless they can convince a supermajority of all Americans to repeal it under Article V of the Constitution.

But more basically, the headline and the article are both wrong. The Constitution did not say black people were only three-fifths of a person. What it said was that slaves were only counted as three-fifths of a person.

Mind you, the Constitution did so in a strange, backwards way that was designed to avoid using the word ‘slave.’ It is a profound fact that the word ‘slavery’ as well as variations such as ‘slave,’ or ‘slaves’ did not appear in the Constitution until the Thirteenth Amendment, which prohibited slavery. The founders had a disdain for slavery, at least officially. One might question their sincerity, but they nearly unanimously stated that we needed to have at least gradual emancipation. In the case of slaveholders like Jefferson, I liken it a man who is addicted to a drug and recognizes he or she needs to stop taking it, but isn’t ready to actually stop just yet. So, whenever they had to talk about slavery in the Constitution, they found these strange workarounds to talk about slavery, without using that word or any variation. Here’s how they talked about it in the three-fifths clause:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The three-fifths of ‘other Persons’ was a reference to slaves. And at the time of the founding there were many free black people living in this Republic. It is not correct to say that they thought the terms were synonymous.

And often it is claimed that it is somehow an injustice to black people or the slaves specifically that the slaves were not counted as full persons. But the opposite was true. I will ignore the issues of taxation right now, but in terms of representation, the fairest outcome would have been to count slaves as zero-fifths of a person.

Think about it. No slave was allowed to vote and how could a person possibly vote freely if they were purported to be owned by another human being?—especially since there was no such thing as anonymous voting, back then. So, when slaves were counted for representation purposes, that would mean greater power for the slaveholder class. You might have a plantation of one owner, his wife, three minor children, and twenty overseers, and 475 slaves. That would be twenty-one voters (women and minor children couldn’t vote), but 500 persons for representation purposes. But does anyone think that slavers would be able to speak for their slaves in any meaningful way? By this method, the bodies of the slaves would be used to increase the political power of their oppressors. No rational person would think that is justice. The only fair solution was not to count slaves in representation at all.

(Well, the only fair solution besides ending slavery.)

I remember reading history books talking about how many Representatives a slave state would gain because of being allowed to count three-fifths of slaves in representation. If I recall correctly, just before the Civil War, one could say that thirteen Southern Representatives could be attributed purely to the political power gained from slaves (but my memory could be wrong). But it came to mind again when I saw this post:

The ugly truth is the census can’t not count illegal immigrants (although we think asking about citizenship should be legal). The beginning of Section 2 of the Fourteenth Amendment says:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

But it is sort of chilling, isn’t it? This time these people—who are disproportionately non-white—are counted as full people, but they still don’t have the right to vote.

I am also reminded of a quote from a Supreme Court case, Plyler v. Doe, 457 U.S. 202 (1982):

Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial ‘shadow population’ of illegal migrants — numbering in the millions — within our borders. This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.

(Footnotes removed.) That would be a quote from Justice Brennan, who is not going to make any conservative’s list of favorite Supreme Court justices, and the outcome of the case—that illegal immigrants have a right to free public education in America—would infuriate most conservatives.

But he is mostly correct in identifying a serious problem. It is an anathema to our Republic to have such a substantial portion of our population be persons who labor under conditions we generally consider too inhuman for our citizens or legal immigrants, to have so many people living here who have no say in our government and at best a problematic affinity with the country they live in. And worse yet, as I noted above, they are even counted in representation. It is not unconstitutional per se to do that, but it is in profound violation of the spirit of the Constitution and closely resembles the situation that existed under the three-fifths clause before it was rendered a dead letter; a population of persons who are used for menial labor, who are denied the right to vote but whose bodies are used to increase the power of those who might not have their best interests at heart.

It is often said that illegal immigrants do the jobs Americans won’t do. But is that really true? The unemployment rate is not zero. Heck, why couldn’t a legal immigrant do the job?

The truth is, I think we are profoundly misunderstanding the problem with illegal immigration. Everyone agrees that the illegal immigrant problem is fed by the illegal immigrant labor problem, but there is another name for the illegal immigrant labor pool: the black market for labor. These are people who are not lawfully being employed, and when they are hired, often work under conditions that would be unlawful for legal immigrants and citizens. Their wages are often below minimum wage, they are worked beyond maximum hours without overtime, they are not granted as many breaks and time off, granted protection from invidious discrimination and so on. Could it be, my liberal friends, that the existence of this black market for labor is the inevitable and predictable result of the onerous regulations placed on businesses when they hire legal workers?

Whether by choice or design, the left has perpetuated a grave injustice on this group. They have created a safety net giving some Americans the false belief that they don’t need to work. They have created regulations so onerous that businesses seek out a black market for labor, ensuring that they will be working under conditions that liberals claim is too inhuman for regular Americans or legal immigrants. And they have blocked any effort to stop the constant flow of new laborers into that illegal work force. And we end up counting them for representation without obtaining their vote—just as we did for three-fifths of all slaves. And what do you know, the people making up this illegal work force are disproportionately non-white. The resemblance of this status quo to that under slavery is creepy and alarming.

And for that matter, some of these illegal immigrants are actually enslaved here in America, specifically in sexual slavery, completing the metaphor in those cases. Additionally, the passage to the United States can be dangerous. Every now and then we hear of tragedies like this:

And Mr. Kennedy also spoke eloquently about the cruelty inflicted on illegal immigrants coming here, including talking about a ‘rape tree.’ The left always tries to pretend that their approach is the compassionate one, but does any of this sound compassionate to you?

The term ‘compassionate conservatism’ has fallen into disfavor lately, probably because of association with former President George W. Bush. I tend to think the mark of true compassion is rationality. It’s not just feeling bad for the person weeping in front of you. The person weeping in front of you might be sad they can’t inflict larger harms on innocent people, for all you know. Rather, rational compassion requires you to think of the larger harm that might be caused by society by a given policy.

Like a liberal might cry for a prisoner on death row. For instance, recently an old Tweet from the ACLU got Community Noted:

The ACLU is all weepy that a person died, that he didn’t get his gender reassignment surgery before he died and so on. But a person with rational compassion thinks about the person Owen killed. Allegedly compassionate liberals often hate the death penalty and weep for those who are executed. Rational compassion wonders what will happen to other good people if we don’t sufficiently deter criminals? Or who might this person have killed if he or she kept living? Even if we assume that person would never make it out of prison (and too often, they do), that killer could have still murdered a guard or another prisoner behind bars.

And even if you believe in transgender ideology (regular readers know I don’t), giving free gender reassignments to prisoners is unbelievably terrible policy. How many people will commit crimes just to be thrown into prison to get free surgery? Creating these kinds of bad incentives is pretty typical of irrational compassion. Whatever argument there is for life-saving medical treatment in prison, cosmetic surgery like this shouldn't be provided.

And to come back to immigration, the rationally compassionate approach is what Kennedy conceded: Get control of our border. A wall, and increased border patrols is part of it, but if this is coming from the black market for labor, then we need to radically reduce the desirability of such labor. That means cutting back the nanny state to reasonable levels.

Oh, and there’s one more thing we can do. For several decades the Supreme Court has claimed that states need to provide voters with proportional representation in Congress. They have done so under a dubious reading of the Fourteenth Amendment, claiming that somehow the Equal Protection Clause requires that there be ‘one person, one vote.’ Even if I don’t agree with their reading of the Constitution, I do think that is a good policy, but the Supreme Court and the lower courts don’t take it far enough. They only pay attention to the distribution of the population and not the distribution of the voters.

So, what the courts need to do—and conservative lawyers need to advocate for this—is for the courts to say that we need not only an even distribution of population but an even distribution of voters and non-voters. That’s not just illegal immigrants. Many people can’t vote in America. Most states ban prisoners from voting while incarcerated and less ban them from voting afterward (either permanently or for a number of years). And minors are not allowed to vote, and all non-citizens—whether they came here legally or not—are barred from the franchise. If District A is made up of 90% voters and only 10% nonvoters and District B is made up 90% nonvoters and 10% voters, then it can't be said that voters in District A have as much political power as the voters in District B. If we really want to make political power more equal in the United States, we have no other choice but to equalize the number of voters and non-voters in setting up these districts.

And, of course, we wonder how many Democratic politicians will favor illegal immigration when they no longer enjoy the advantage in political power they get from illegal immigrants? That might help solve the problem, too.

But I will register a disagreement with Mr. Kennedy. I don’t think most people approach illegal immigration from a nationalist or xenophobic point of view. While I hope this piece brought some new perspective to the discussion, the conservatives I know see the complete human tragedy of the system as it exists now. The conservatives I know recognizes that getting control of our illegal immigration is good for everyone, including those who would become illegal immigrants.


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