"The Deportation of Dissent"

An excellent April 14 article by Jacob Mchangama and Hirad Marami (The Bedrock Principle); here's an excerpt:

The Department of Homeland Security recently announced that U.S. Citizenship and Immigration Services would begin screening the social media posts of "aliens applying for lawful permanent resident status," as well as foreign students and others affiliated with educational institutions deemed linked to antisemitic activity. In particular, USCIS will deny benefits to applicants whose posts indicate support for "antisemitic terrorism, antisemitic terrorist organizations, or other antisemitic activity."

This move follows several high-profile cases where foreign students — including visa and Green Card holders — were detained, seemingly for their speech or beliefs. This includes a Turkish student at Tufts University, who was seemingly targeted for co-authoring a student newspaper op-ed calling for a boycott of Israel, despite no evidence that she supported terrorism or expressed antisemitism.

The Trump administration is invoking a clause of the Immigration and Nationality Act of 1952 that allows the Secretary of State broad discretion to deport anyone he believes "would have potentially serious adverse foreign policy consequences for the United States." As such, a recently released memo detailing the government's case against the most prominent of the activists, Mahmoud Khalil, refrains from charging him with any crime. On Friday [April 11], a Louisiana immigration judge upheld the Government's decision to deport Khalil. Constitutional scholars debate whether and to what extent the First Amendment protects noncitizens in such cases, and the Supreme Court may eventually weigh in.

But the question is not only constitutional — it is foundational. Is deporting foreigners for expressing disfavored views compatible with a robust commitment to a culture of free speech?

As it turns out, history has a lot to tell us about states that exclude foreigners with controversial opinions and those that welcome non-native dissenters….

Comments

[apedad]

Here's their conclusion (to save everyone's time).

"History teaches a simple lesson: societies that welcome dissenting outsiders tend to flourish — intellectually, culturally, and politically. Those that silence them in the name of vague security grounds or ideological purity often decay.

America now faces that same choice. Will it channel the spirit of Spinoza’s Amsterdam — open and pluralistic — or will it drift toward the brittle paranoia of Ancien Régime France, where orthodoxy crushed inquiry and fear trumped freedom?

From Zenger to Hitchens, from Abrams to Arendt, it has often been immigrants who tested the boundaries of the First Amendment — and in doing so, helped define its meaning. To now deport people for unpopular opinions is not merely a constitutional gray zone. It is a betrayal of the very idea that truth and progress emerge from argument, not conformity.

Silencing foreign voices won’t make America safer. It will make it smaller and less resilient. A confident, free nation doesn’t banish speech — it engages it."

[rloquitur]

Mahmoud Khalil did a little more than just speak. Good riddance. Hope he likes wherever he goes.

[Martinned2]

If he committed a crime, I'm sure the DOJ would have no trouble getting a grand jury to sign off on a prosecution and a petit jury on a conviction.

[rloquitur]

Um, he need not be convicted of a crime. He does not have a free speech right to associate himself with CUAD, participate in occupation of building, extort CU under the guise of negotiations etc. etc. This guy needs to be on the next plane.

[David Nieporent]

It's like people cannot follow simple logical arguments.

Rloquitur says that he did more than speak.
Martinned says, "So, if he committed a crime, prove it."
Rloquitur says, "He doesn't have the free speech right to do what he did," which is utterly nonresponsive and also question begging.

1. If Khalil is being deported for his speech, that's bad.
2. If Khalil is being deported for breaking the law, then the administration should prove the lawbreaking first.

[rloquitur]

Sorry, not gonna play this word game. You guys keep saying that it violates the First Amendment to deport him. I point out the deeds, which do not have First Amendment protection. Then you say that there's no crime here--so what? People can be deported for stuff that isn't a crime.

Mahmoud Khalil, to be blunt, is an insufferable twerp. He associated himself with riots, Hamas, campus mobs making life hard for Jewish students (other than those who were down with the cause) etc. etc.

Harken back a few years ago--do you remember the case where American citizens were booted out of school because they wore American flag regalia. (They were threatened by Latino students for doing so, and the school punished the victims.) Let's say some of those who threatened the kids wearing the flag stuff was an illegal immigrant. Next bus/plane. You don't need a conviction to deport someone. And I wouldn't care if he were 14 years old and dropped off right across the border in Tijuana.

[David Nieporent]

You don't need a conviction to deport someone here illegally. You need a conviction, or at least a good reason, to deport someone here legally. Whim is not a legitimate basis for government action in any context.

[MaddogEngineer]

Of course it is. That's exactly what the law says currently, it's at the secretary of state's discretion to decide. It's not up to you or others to decide what a good reason is. And that law gives no one jurisdiction to second guess that decision.

[Sarcastr0]

Congrats on reading all requirements out of the law by allowing SecState to define everything.

There's a reason it doesn't work like that

[Commenter_XY]

Congress passed the law; SecState Rubio is merely following it.

[Rossami]

No, you don't need a conviction. Yes, you should need a reason and yes, it should be a good reason but requiring it to be a "good reason" is too subjective to be enforceable so the law doesn't actually require even that.

Don't like the executive branch having that much unfettered discretion? Write your congresscritter to get the law changed. And tell them to claw back the rest of their century of over-delegation while they're at it.

[grb]

rloquitur : "Mahmoud Khalil did a little more than just speak."

Such as what? The "lying on his application" thing seems to have vanished, though we were repeatedly assured that was a sure thing. The only other charge I've heard is "advised people planning a sit-in", which has to be one of the most wispy, nebulous, and insubstantial accusations of criminal conduct ever.

But - hey - that's not as bad as the woman being deported for writing a school paper oped. Kinda calls to mind all the wailing on "free speech" we've heard from the Right these past few years. We always knew it was cartoon hypocrisy - but here's the proof, big as day.

[rloquitur]

The news will pop again---his petition to withhold removal is pending.

The Korean woman is a very tough one. I would not do that. But I think the law allows it. But Roger Stone criticized a federal judge, and she shut him up. Don't recall you being pissed.

[Krayt]

This is true, dissenting outsiders. Now do dissenting insiders.

One faction worked mightily to get harrassing tweets and whatnot censored by corporations, threatening to modify or wipe section 230, which would crush their business model, unless they played ball. They even had a discussion unit on it in one of the 2020 Democratic debates, where they fell all over each other to be the most proactive.

This worked, and almost instantly, it moved from being applied to rude yokels to candidates for office, who started having warning labels applied, clickthru warning hides, outright hides. Heads of state around the world expressed concern the US was going off the rails on things it lectured, properly, others about.

Years later, the heads of those companies testified they had, in fact, been wrenched, unlike the lies liars lied they did it voluntarily.

The point isn't "you, too!" It's your actions coming back against you with a vengeance. Apparently it's ok to go after speech, you lousy (censoreds).

You are the reason countries in Europe, without that pesky First Amendment, now are jailing people who say lesser things than you, correctly, defend here. At this moment, anyway. Not half a decade ago.

"Both sides are the bad guys?" That goes without sayin. But you are the instigators of current evils, both here and abroad.

Hell, probably some of you look wistfully at Europe's cavalier free reign on ignoring censorship. Because if there's one thing history shows, democracy can safely weild the tools of tyrants.

[jb]

"One faction worked mightily to get harrassing tweets and whatnot censored by corporations, threatening to modify or wipe section 230"

I think there's legitimate debate about whether the Biden administration went too far during Covid to combat misinformation.

This whole take on "one faction threatened Section 230" is so dumb, though. I've seen way more threats from Republicans over the years than Democrats, including from Trump. Even if you don't agree there's more coming from Republicans, it's certainly not a threat confined to one side or the other.

[Krayt]

I acknowledged both sides are bad, not that "You, too!" is a defense.

I even complained at the time Republicans, usually playing catch up in this sordid game, tried to use threats to section 230 to stop Democrats, threatening it if they did go along with Democrats. The correct answer is neither side should be doing that.

[jb]

I mean sure, neither side should be doing it. But when your lead is "one faction" is trying to do something and in reality the other side is trying to do that thing a lot more, it's not a very honest approach to the problem.

And no, the Republicans threat wasn't to take away Section 230 if the platforms went along with the Democrats. Here's a good example:

https://x.com/realDonaldTrump/status/1313511340124917760

[Stephen Lathrop]

Krayt — Of course the correct rejoinder to your endlessly repeated demand to make Section 230 the only sacrosanct law ever passed, is to reverse Section 230 unconditionally. I agree that enforcing Section 230 conditionally is bad for expressive freedom. Having Section 230 at all has proved worse.

As early as the Bush II administration it had become predictable that Section 230 would lead to a national media regime characterized by a few giantistic media outlets controlled by oligopolists, and in league with government. It was also predictable that free press advocates would find themselves unhappy about that.

I can say that because I predicted both outcomes then, in so many words. I insisted likewise many times since. And here we are.

With Trump 2 those predictions got confirmed in full. What media bystanders thought they saw was a sudden, almost-inexplicable alliance between formnerly-rival media giants, newly brought under government auspices. Those events were in fact only a culmination of trends shaped by Section 230, and already long at work.

Too bad internet utopians continue blind to the reasons why an internet publishing regime run under Section 230 was always destined to turn out that way. Until internet utopians at least notice what actually happened, efforts will remain futile to reform internet publishing law to make it better support both personal expressive freedom, and the public life of the nation.

Too bad. Make it a point to notice, the pro-tyranny implications of today's media–government alliance could make it much harder to reform online media than it might have been previously. It will prove far harder to resist a tyranny supported by a coterie of unified media giants, than it would have been under a diversified regime comprising a myriad of smaller media independents.

[Randal]

You've never understood the distinction between editorial control and censorship.

For sure one of the reasons the Left likes editorial control is to make it easier to shape the narrative. You only have to convince a handful of editors. But there's an important silver lining, which is that editorial control can stand up to government pressure as in the Pentagon Papers and Watergate. (This is a lie by the way: "Years later, the heads of those companies testified they had, in fact, been wrenched, unlike the lies liars lied they did it voluntarily." They did it voluntarily, and they testified as such.)

The Left's love of editorial control contrasts with the Right's love of actually suppressing dissent. The Left doesn't attempt to punish opinions beyond shaming them (which is totes legit anyway). Where the Left tries to shape the narrative via influencers, the Right goes after the opinions themselves and tries to shut them down. No swearing in music. No sex on TV. No violent video games. No drag shows. No books with gay characters. No criticizing Israel. Pretty soon no criticizing Trump.

The Right's approach is infinitely more dangerous (and anti-free-speech) than the Left's.

[Krayt]

I'm not sure how "editorial control" because government is threatening hundreds of billions of dollars in stock loss by crushing the business model that let US companies dominate the Internet, where other countries' companies labor, hampered under standard liability regimes, amounts to not being censorship, nor that wielding it against political opponents is not severely dangerous, but I'll bite.

The Republicans are awful and dangerous, too. I'll still stand by my amply-defended statement, though, that the most dangerous threat to democracy since 2016 has been the mega-pronged attack of government against a political opponent.

Of course, what's happening today is also awful in that respect, and arguably worse, though the jury is still out. But it's tit for tat reaction, one upsmanship, to what the Democrats have been doing.

None of this is out of the blue. You've bullied your bully and he's bullying back. We are shocked. Shocked!

OhNoAnyway.gif

[Krayt]

To put it bluntly, Jan. 6 was a reaction to "fiery but mostly peaceful" demonstrations, and CHAD declared independent areas, which got little pushback from government at the time.

"If they can do it, why not us?"

And, secondly, that this brand of speech punishment, both for deportations, and for punishing universities, derives from pushing speech controls into universities to begin with, under the guise of harrassment, which, whatever the original intent, mutated into something much more sinister with reeducation and U departments with names that would fit in old East Germany.

"If they can do it with facetious reasoning, why not us?"

Tit for tat. This justifies nothing, but explains it quite well.

Thanks for feigning innocent in this historic, disgusting process.

[Randal]

Almost everything you just said was made up by Trump and his media surrogates at Fox News to agitate MAGA into its frothy state. It's tit for fantasy tat... the standard playbook of fascists everywhere.

[halbax]

Yes, that is part of the problem. If people for example are lying that hydroxychloroquinine is safe and can prevent covid, and people who take it are getting sick, then there is a good faith reason to ask private companies not to broadcast that message. This is obviously an area where there are already laws restricting speech…medical claims about products have to be consistent with FDA regs.

Obviously not everything the Biden administration did with Twitter and Facebook fell into that category. But a lot of it did and that makes it really difficult to both sides this issue because the administration often wasn’t just trying to suppress disfavored narratives, but rather was specifically trying to target what they perceived to be lies that were injuring peoples health.

[shawn_dude]

Beating cops with poles and fire extinguishers was the conservative response to liberal protests against police abuse?

Do you even listen to yourself?

Why throw fire when you can just beat them to an inch of their life directly! Must've been one of those conservative "hold my beer" moments where they schooled libs on the RIGHT way to get things done.

[David Nieporent]

government is threatening hundreds of billions of dollars in stock loss by crushing the business model that let US companies dominate the Internet

That never happened. You had some individual legislators, not "the government," talking about wanting to repeal 230. And since 230 applies to all companies, U.S. or otherwise, in the U.S., and no companies, U.S. or otherwise, not in the U.S., I don't understand your last point.

[Sarcastr0]

Krayt's bothsidesism requires some real crazy right-wing wackiness.

And a level conviction on unsupported allegations of Section 230 blackmail that puts him at the head of the right wing pack of crazies. Impressive.

He doesn't need to indulge in nearly as much fiction when he's hating on the GOP, I notice.

[Stephen Lathrop]

You only have to convince a handful of editors.

Randal — I can see you get this. But no, you did not put it right. You have to convince thousands and thousands of editors—ornery, fractious, independently opportunistic editors—all out to identify content-mediated means to gain competitive advantages.

That remains the essence of why independent editing prior to publication so long proved a better bulwark in support of public life. Since private editing largely disappeared, nothing the nation has seen from its media can rival the public advantages of that former system.

And always remember to note that under that former system, economic barriers to media entry by anyone, even people of modest means, were far lower than they are now. That is a supremely important insight for anyone trying to compare media systems, and to note accurately which systems promote influential participation by more people.

[Kleppe]

"From Zenger to Hitchens, from Abrams to Arendt, it has often been immigrants who tested the boundaries of the First Amendment — and in doing so, helped define its meaning."

If that's what they want to do then they need to actually immigrate and become naturalized, not start shit and rile people up while they're here as guests. They need to put their money where their mouths are. Skin in the game. In the mean time, they can fuck right off.

[Sarcastr0]

You also vocally support fucking with legal aliens and permanent residents. Consistency is not your strong suit, eh?

rile people up
Only thing worse than a snowflake is an authoritarian snowflake.

[Thought about __ all my life]

That is just silly...so what differentiates the shrinking citizen from the the spirit of Spinoza is being any old immigrant, Tren de Aragua and MS-13 are the key to a better society

Dershowitz: Harvard Law Doesn’t Focus on Principle and Produces People Like Schiff, Raskin, and Warren
‘It’s just a shame’

[zztop8970]

I am sure you and Eugene were just as upset when these dissenting outsiders were banned from entering the US

https://www.jpost.com/opinion/otzma-party-is-dangerous-i-know-because-i-banned-its-leader-from-the-us-581759

[Darwinnie]

I don’t see your logic. Can you expound? It seems they were banned as terrorists.

[Dr. Ed 2]

"At the time, Ben Ari marveled that Iran’s president, Mahmoud Ahmadinejad, was granted entry (for the United Nations) while he was not."

He wasn't the only one, and remember that it was Columbia that invited him to speak.

COLUMBIA.....

[zztop8970]

No, they were banned for joining a political party that the US had designated as a terrorist organization, some 20 years later, and for "openly consider[ing] himself a disciple and devotee of Kahane." How is that different from being a member, spokesperson or a supporter of Hamas also a designated terror?

[not guilty]

I haven't read the article linked by zztop8970, but denying entry to an alien based on his speech or expression is permissible under the First Amendment. Kleindienst v. Mandel, 408 U.S. 753 (1972). Deportation of an alien based on his protected speech while in the U. S. is a different matter. See Bridges v. Wixon, 326 U.S. 135, 138 (1945) ("Freedom of speech and of press is accorded aliens residing in this country.")

[ReaderY]

“Resident” is a very important qualification.

In United States v. Verdugo-Irquidez, 494 U.S. 259 (1990), the Supreme Court defined “the people” consistently with Wilson, to include legal permanent residents as well as citizens.

So Khalil, having a green card, would be covered. But people here on only a tourist or a student visa, or with no legal status, would not be.

[shawn_dude]

IANAL but "residing" and "resident" could mean different things in this context. Undocumented aliens who've lived here for a while are arguably "residing" but they are not legal "resident(s)." The word "resident" is often shorthand for a non-citizen here legally but one can "reside" in the US without having legal status.

It all depends on the context of the word when used. The common use versus the legal use. The former is more expansive.

[ReaderY]

While they “could” mean many things, the problem is the string of Supreme Court cases establishing what they do mean. We’re not dealing with a clean slate here. And I think that as a practical matter, this court is sufficiently conservative that it is not going to overrule existing conservative precedents on the subject

[not guilty]

SCOTUS has expressly rejected the contention that aliens present in the United States -- lawfully or otherwise -- are unprotected by constitutional guaranties of due process and equal protection:

Appellants argue at the outset that undocumented aliens, because of their immigration status, are not "persons within the jurisdiction" of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessv v. Mezei, 345 U. S. 206, 345 U. S. 212 (1953); Wong Wing v. United States, 163 U. S. 228, 163 U. S. 238 (1896); Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 369 (1886). . .

Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction, while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction." We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority.

The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says:

"Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

"These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the protection of the laws is a pledge of the protection of equal laws."

Yick Wo, supra, at 118 U. S. 369 (emphasis added).

Plyler v. Doe, 457 U.S. 202, 210-212 (1982) (footnotes omitted).

Discrimination among speakers based on the content of their message violates both the First Amendment and Equal Protection guaranties:

"Any restriction on expressive activity because of its content would completely undercut the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' New York Times Co. v. Sullivan, 376 U.S. 254, 376 U. S. 270."

"Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an 'equality of status in the field of ideas,' and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone."

Carey v. Brown, 447 U.S. 455, 462-463 (1980) (footnote omitted), quoting Police Department of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972).

[ReaderY]

But of course, that case is completely irrelevant, for the simple reason that it’s about the 14th Amendment, which doesn’t apply to the federal government. And the key difference between the 5th and 14th Amendments involves aliens. States for example are obligated to treat aliens equally, as the case you cite says about Texas. But the federal government is not. Perhaps the most obvious example is equal protection. The federal government only needs a rational basis to treat aliens differently, but states are subject to strict scrutiny. And for Due Process, as an example, the Supreme Court recently reaffirmed that only aliens who have developed substantial connections to this country have a due process right to appeal decisions of immigration officers to any tribunal, Dept of Homeland Security v. Thuraissigiam (2020).

[not guilty]

The Fifth Amendment Due Process clauses imposes an Equal Protection requirement on the federal government, as recognized in Bolling v. Sharpe, 347 U.S. 497 (1954) (segregation of public schools in the District of Columbia violates Fifth Amendment Due Process).

Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment. Buckley v. Valeo, 424 U.S. 1, 93 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975), and cases cited.

Viewpoint discrimination by the federal government accordingly violates the First and Fifth Amendments, just as viewpoint discrimination by a state government violates the First and Fourteenth Amendments.

[Commenter_XY]

Khalil's green card was revoked. He no longer has one.

[shawn_dude]

I don't believe that is true. He hasn't exhausted his due process options at this point. But the government sure is trying hard to deport him using any avenue at its disposal.

[ReaderY]

While Supreme Court precedent is very conservative on immigration, the distinction it makes between legal permanent residents and other aliens favors Khalil. It suggests that although a would-be asylum seeker can be turned away at the border and that’s that, a green card holder who’s been n this country for some time can’t simply have his green card revoked without a hearing.

[zztop8970]

In terms of the legal due process they are owed , perhaps.
But the quoted article does't make a plea for due process- it advances an ideological position for policy. and as far as the argument by Mchangama & Marami goes, that "societies that welcome dissenting outsiders tend to flourish — intellectually, culturally, and politically. Those that silence them in the name of vague security grounds or ideological purity often decay." goes- what difference does it make?

[ah....Clem]

For reference, here is the 1A text:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Note that it does not say anything about only applying to citizens or permanent residents. Also note that if non-citizens lose their 1A rights, the rest of us are not far behind.

[ReaderY]

“The people” means exactly citizens and legal permanent residents. It’s been used mostly in 2nd Amendment cases, where restrictions on aliens possessing firearms have been upheld on grounds they are not members of the”the people.” But it means the same thing across the board.

[JasonT20]

And the people have the right "peaceably to assemble, and to petition the Government for a redress of grievances."

Petitioning the government seems to usually be interpreted as being able to seek civil remedies in the courts, appeal decisions of regulatory agencies, and the like. Though, I am not sure of that. It could be argued that this is only a right for citizens and legal permanent residents, though I don't see much benefit to that limitation. I can also see why government may wish to have more latitude in limiting the assembly of foreign nationals that haven't been granted permanent resident status, but it is wrong think that a person not having a right to do something means that it is okay to restrict them from doing so arbitrarily.

Unlike those two rights, the freedom of speech, religion, and the press are not reserved only for "the people." They are general prohibitions on government.

[ah....Clem]

A narrow reading of 1A like that would allow the government to outlaw any newspaper, magazine, book, movie, video, etc. produced outside the US. Is that what is being advocated for?

[ReaderY]

“The people” is defined in United States v. Verdigo-Irquidez, 494 U.S. 259 (1990). It includes a list of rights applicable only to “the people.”

[shawn_dude]

"Held: The Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country. Pp. 494 U. S. 264-275."
[ source] emphasis mine

"non-resident" here is used to mean the defendant was residing in and arrested in Mexico and the search and seizure happened in Mexico. They were brought back to the US for trial.

[ReaderY]

One difficulty is the cases upholding federal prohibitions on aliens posessing firearms in this country on grounds that the 2nd Amendment applies only to “the people,” which interpret the case as extending beyond that holding.

[Magister]

The 2nd Amendment is not a sure guide to the meaning of the 1st, since it also contains that pesky "well regulated Militia" bit, which might reduce who "the people" are for that amendment.

[Brett Bellmore]

Or would, if it read, "The right of the well regulated Militia", anyway.

[Randal]

A right can belong to the people and still be in support of a well-regulated militia. The right could apply differently to different people, such as felons or the mentally ill -- who certainly are people -- if not doing so would frustrate the stated purpose of supporting the militia.

[Brett Bellmore]

But there's a purpose in giving the right to the People, not the militia: It's to deny the government the power to minimize the right by curating who gets to exercise it.

[Randal]

Huh? We just agreed that the government has the power to curate who gets to exercise the right, such as having curated felons and the mentally ill out of "the people" for the purposes of the Second Amendment.

So, "the people" can be a different set in practice for different rights. Felons certainly retain the right to petition the government for the redress of grievances, for example.

[ReaderY]

The problem is that Verdigo-Irquidez said that “the people” has the the same consistent meaning across all the constitutional provisions where the term occurs. It listed them. And because the 2nd Amendment cases applied Verdigo-Irquidez, they applied this conception of what “the people” means

[Randal]

So your claim is that since felons and the mentally ill don't get Second Amendment rights, they also don't get the right to peaceably assemble and petition against grievances?

That is incorrect, sir.

[Stephen Lathrop]

The problem is that Verdigo-Irquidez said that “the people” has the the same consistent meaning across all the constitutional provisions where the term occurs.

ReaderY, if that is correct, the only possible conclusion is that the meaning of, "the people," is a reference to collective joint popular sovereignty—the unambiguous intent of the first 3 words in the Constitution.

A lot of commenters here have staked billions of pixels on arguments to the contrary.

[Magister]

You think the 1st Amendment's meaning would be utterly unchanged if it had included "A well regulated Public Debate being necessary to a free State, " at the start (or at least after the religion part)? Substitute various other things for "Public Debate" if you think that one is a poor analogy.

[Randal]

A well-regulated library.

[hobie]

Implicit is the right to assemble and worship your religion. Is anyone here suggesting that people in this country, regardless of status, can be disabused from practicing?

Recently when asked about an immigrant's right to speak, some of the insurrectionists here said something to effect that, 'They can still speak freely when they are in detention. No one is stopping them.' Which, of course, is an asinine argument

[Thought about __ all my life]

FOUR errors

That does not supercede state constitutions on same subject, often stricter and , historically, the source and interpretant of what you are quoting.

It doesn 't say anything about citizens etc because that is a police power of the STATES

You commit a logic error : "if non-citizens lose their 1A rights"
but obfiously there are many forms of speech you never have is a non-citizen, eg you can't vote !!!!

THe rest of us --- by the way ---- disagree with you
83% of Americans favor deporting at least some immigrants here illegally, survey finds
By Tim Vandenack, KSL.com | Posted - April 1, 2025
Say what you want about that 'at least some' but it clearly states that not all have 1A rights.

[Michael P]

Are we supposed to punch, jail and/or kill Nazis or merely deport them? I have lost track of what the left wants, what with its characteristic mismatch between revealed versus asserted preferences.

[Sarcastr0]

Big leftie, that Volokh.

[Michael P]

I appreciate the implied concession that there are no reasonable lefties.

[Foxwhelp]

You are mistaken that this is a just a question of what the left wants. The left is certainly unhappy with the president right now, but so too is that part of the right that actually believes that America was made great by the high value it has traditionally placed on liberty and free inquiry.

[JasonT20]

That you think that it is only "the left" that opposes the Trump administration's abuses of the Constitution is a reflection of the bubble you live in. It is a bubble where "the left" is anyone to your left. Or, even more accurately, anyone that you disagree with.

I make such a sweeping claim about your view because going full Godwin like that is done by people that left rational thought and argumentation behind long ago. To have cocooned yourself in an echo chamber so thoroughly that you don't recognize the simplistic thinking that lead you to bring up the Nazi straw man in response to this argument is sad.

[David Nieporent]

It is a bubble where "the left" is anyone to your left. Or, even more accurately, anyone that you disagree with.

Judge Wilkinson? Lefty. Justice Roberts? Commie. Justice Barrett? Marxist. Ed Whelan or Andrew McCarthy? RINO leftists. The list goes on.

[Michael Ejercito]

A First Amendment challemge against Khlalil's deportation is foreclosed in inferior courts by Harisiades v. Shaughnessy.

What would you argue to the Supreme Court about the continued validity of Harisiades.

[David Nieporent]

Harisiades held that a non-citizen could be deported for unprotected speech. It did not hold that a non-citizen could be deported for protected speech.

(To be clear, the speech at issue in the case would be deemed protected now, but it wasn't at the time the case was decided.)

[Thought about __ all my life]

More basically who gets to decide who is a Nazi, Is it your pro-Nazi lawyer arguiing before a Judge Boasberg aided and abetted by one of history's most lazy Chief Justices
Roberts rushes to the cameras to defend Boasberg then later completely shuts him down all the while pushing Birthright Citizenship back and back from a decision

[Dan Schiavetta]

I'm reminded of the GW Bush Administration's post-9/11 "terrorism alert warnings", which increased from the green end of the scale to the red end when John Kerry seemed to be leading in the polls, but which were never heard of again once he had been safely defeated in the 2004 election (being Democrats, we maturely accepted the loss). We forget this now, but as the election approached there was fear of another attack. Bin Laden obviously preferred Bush to Kerry, and he knew that another attack -- or a declared threat of an attack -- would tip the election in Bush's favor. It was unfortunate that Bush won (and our international reputation suffered), but fortunate that there wasn't another 9/11.

[Michael P]

Your recollection does not resemble factual history: https://en.wikipedia.org/wiki/Homeland_Security_Advisory_System

[Dan Schiavetta]

The Wikipedia article more or less bears me out. And Tom Ridge’s memoirs confirm the political manipulation.

The article also shows how sloppy and incompetently run the system was, but that’s no surprise with the Bush Administration.

[Michael P]

"Less" bears you out, maybe. It disagrees strongly on the threat level increasing after polling results, and also on how long it lasted, which were your key claims about it.

[Dr. Ed 2]

"being Democrats, we maturely accepted the loss"

You hadn't four years earlier, and you wouldn't 8 years later.

And do not forget the 2006 soft drink plot, or the 2009 underwear bomber. This stuff did not end with the 2004 election.

[bernard11]

You hadn't four years earlier, and you wouldn't 8 years later.

Horseshit, Ed, as usual. In 2000 the Democrats took legal action to seek a recount in Florida where the results were extremely close. They lost. Gore conceded and did not run around the country stirring up his supporters with lies and bitterness about stolen elections. In fact, the only thing resembling violence was the "Brooks Brothers riot" to stop recount which mighty have favored Gore.

So STFU.

[not guilty]

Would the MAGA cult defend Donald Trump's State Department if Secretary Rubio were to unilaterally decide to deport any alien who has displayed a Star of David?

(I know that's unlikely to happen, but there is a reason it's called a hypothetical.)

[rloquitur]

No.

[Zarniwoop]

Do you think an order to deport any green card holder who displays a Star of David, based on the Secretary of State’s unilateral determination that their presence or activities could threaten U.S. foreign policy interests, is allowable under the First Amd.?

[not guilty]

As I understand it, the modern nation of Israel bases its claim to territorial integrity at least in part on descent from the ancient nation of Israel, which occupied the land. If the Old Testament is to be believed, that nation, purportedly acting pursuant to instructions from its deity Yahweh, was quite a practitioner of genocide, including the mass slaughter of infants and children. (All quotations here are from the original Revised Standard Version):

"However, in the cities of the nations the LORD your God is giving you as an inheritance, do not leave alive anything that breathes. Completely destroy them—the Hittites, Amorites, Canaanites, Perizzites, Hivites and Jebusites—as the LORD your God has commanded you." Deuteronomy 20:16-17.

Samuel said to Saul, “I am the one the LORD sent to anoint you king over his people Israel; so listen now to the message from the LORD. This is what the LORD Almighty says: ‘I will punish the Amalekites for what they did to Israel when they waylaid them as they came up from Egypt. Now go, attack the Amalekites and totally destroy all that belongs to them. Do not spare them; put to death men and women, children and infants, cattle and sheep, camels and donkeys.’ ” I Samuel 15:1-3 (emphasis added)

"Sama'ria shall bear her guilt, because she has rebelled against her God; they shall fall by the sword, their little ones shall be dashed in pieces, and their pregnant women ripped open." Hosea 13:16 (emphasis added)

"Then they utterly destroyed all in the city [of Jericho,] both men and women, young and old, oxen, sheep, and asses, with the edge of the sword." Joshua 6:21

"And the LORD said to me, 'Behold, I have begun to give Sihon and his land over to you; begin to take possession, that you may occupy his land.' Then Sihon came out against us, he and all his people, to battle at Jahaz. And the LORD our God gave him over to us; and we defeated him and his sons and all his people. And we captured all his cities at that time and utterly destroyed every city, men, women, and children; we left none remaining[.]" Deuteronomy 2:31-34

"So the LORD our God gave into our hand Og also, the king of Bashan, and all his people; and we smote him until no survivor was left to him. And we took all his cities at that time--there was not a city which we did not take from them--sixty cities, the whole region of Argob, the kingdom of Og in Bashan. All these were cities fortified with high walls, gates, and bars, besides very many unwalled villages. And we utterly destroyed them, as we did to Sihon the king of Heshbon, destroying every city, men, women, and children." Deuteronomy 3:3-6

"And Joshua took Makke'dah on that day, and smote it and its king with the edge of the sword; he utterly destroyed every person in it, he left none remaining; and he did to the king of Makke'dah as he had done to the king of Jericho. Then Joshua passed on from Makke'dah, and all Israel with him, to Libnah, and fought against Libnah; and the LORD gave it also and its king into the hand of Israel; and he smote it with the edge of the sword, and every person in it; he left none remaining in it; and he did to its king as he had done to the king of Jericho. And Joshua passed on from Libnah, and all Israel with him, to Lachish, and laid siege to it, and assaulted it: and the LORD gave Lachish into the hand of Israel, and he took it on the second day, and smote it with the edge of the sword, and every person in it, as he had done to Libnah. Then Horam king of Gezer came up to help Lachish; and Joshua smote him and his people, until he left none remaining. And Joshua passed on with all Israel from Lachish to Eglon; and they laid siege to it, and assaulted it; and they took it on that day, and smote it with the edge of the sword; and every person in it he utterly destroyed that day, as he had done to Lachish. Then Joshua went up with all Israel from Eglon to Hebron; and they assaulted it, and took it, and smote it with the edge of the sword, and its king and its towns, and every person in it; he left none remaining, as he had done to Eglon, and utterly destroyed it with every person in it. Then Joshua, with all Israel, turned back to Debir and assaulted it, and he took it with its king and all its towns; and they smote them with the edge of the sword, and utterly destroyed every person in it; he left none remaining; as he had done to Hebron and to Libnah and its king, so he did to Debir and to its king. So Joshua defeated the whole land, the hill country and the Negeb and the lowland and the slopes, and all their kings; he left none remaining, but utterly destroyed all that breathed, as the LORD God of Israel commanded. Joshua 10:28-40

[SRG2]

Would the MAGA cult defend Donald Trump

Question answers itself.

[Brett Bellmore]

I suppose there's a perspective from which displaying a religious symbol is no different from allying with a terrorist group. But I don't think we're obligated to adopt that perspective.

[Sarcastr0]

If your big distinction is 'this is good but that is bad,' you're failing.

[Brett Bellmore]

People routinely accept things they think good, and object to things they think bad, and expect official discretion to be exercised in a way that distinguishes between them.

This isn't a denial that the discretion exists, it's just that we want it exercised sensibly, rather than in a destructive manner.

So, no, I do not, in fact, have to treat an alien voluntarily aligning themselves with a foreign terrorist organization like Hamas, and an alien displaying a Star of David, identically. Though I'll candidly admit there are members of Congress who'd approach that dicotomy from the opposing side.

[Sarcastr0]

You've still failed to name a material distinction.

Good/bad isn't that. That's just vibes.

Works in a monarchy; not so much in a republic.

[Martinned2]

The only monarchy I'm familiar with that works that way is Thailand, which has a well-known problem with free speech. As for republics, Brett's description seems pretty accurate for how the US has been doing things since, basically, always.

[Sarcastr0]

The entire American legal edifice is about constraining determinations to a single standards independent of subjective value judgements. It's hard, and complex, and sometimes unpopular. And like any human endeavor it doesn't always succeed.

It's just knee-jerk antiamericanism to claim all those rules are pretext.
Unless you want to roll like the guy who claims all legal rules are pretext everywhere.

[Martinned2]

It's not anti-Americanism to observe that the US has, historically and today, an above-average tendence to exaggerate its own angelic nature. The first amendment is a classic example of exactly that. JD Vance came to Munich to lecture Europe about our alleged poor free speech record while the administration that he is a member of was deporting people for wrongthink.

Every single week on this blog people tell me I do free speech wrong, without wanting to admit for one second that having the wrong opinions can get you into a lot more trouble in the US than in Europe.

And that is not new. The whole mess of the midnight judges and Marbury v. Madison was about Adams and Jefferson trying to politicise the judiciary, i.e. rewarding people for having the right opinions by giving them lifetime appointments in the judiciary. The only thing they disagreed about was *which* opinions deserved to be rewarded in this way, with each of them seeking to rig the system for partisan advantage.

None of this means that all rules are pretext. It just means that the rigid rules that American judges like so much aren't nearly as objective and inflexible as people like to think.

[Bob from Ohio]

Its your treatment of citizens that constitutes your poor free speech record.

[Sarcastr0]

Your thesis: "Brett's description ["People routinely accept things they think good, and object to things they think bad, and expect official discretion to be exercised in a way that distinguishes between them"] seems pretty accurate for how the US has been doing things since, basically, always"

1. "the US has, historically and today, an above-average tendence to exaggerate its own angelic nature"
True. But not relevant to your thesis.

2. "JD Vance came to Munich to lecture Europe about our alleged poor free speech record while the administration that he is a member of was deporting people for wrongthink."
Yes that is infuriating hypocrisy regarding the US today. But not relevant to your thesis.

3. "Every single week on this blog people tell me I do free speech wrong, without wanting to admit for one second that having the wrong opinions can get you into a lot more trouble in the US than in Europe."
I think reasonable minds can differ on speech, but I do like the US's approach until our recent authoritarian lurch.

4. "The whole mess of the midnight [massacre] and Marbury v. Madison was about Adams and Jefferson trying to politicize the judiciary"
Operative word being try. So not relevant to your thesis.

5. "rewarding people for having the right opinions by giving them lifetime appointments in the judiciary"
Opinions about the law, sure.
That is not the same as good things/bad things vibes.

6. "the rigid rules that American judges like so much aren't nearly as objective and inflexible as people like to think."
Sure, like any human institution from research labs to movie studios to the Office for National Statistics.
But again, not relevant to your thesis.
-----
If you want to argue that America's legal institution does not make it exceptional, I'll agree with you.
I do think America is exceptional but our judiciary merely pretty good. It was once a model of implementation of constitutional governance, but we've stopped inspiring imitators for quite some time now.

[Brett Bellmore]

"2. "JD Vance came to Munich to lecture Europe about our alleged poor free speech record while the administration that he is a member of was deporting people for wrongthink."
Yes that is infuriating hypocrisy regarding the US today. But not relevant to your thesis."

We treat aliens badly, (For some value of "badly", anyway.) they treat citizens badly. You don't think that's a relevant difference?

[Sarcastr0]

First, this is a shitty excuse. Treating people badly is treating people badly.

Second, we also treat citizens badly. Federal employees, university researchers, university students, law firms. Science journals now.

Just not *your kind of people*.

[shawn_dude]

If all it takes is labeling one of them "terrorists," then that's easy peasy. Just call anyone you dislike for any reason a "terrorist" and deport away!

[Randal]

It won't be long before Israeli settlers get the "terrorist" label and support for Israel becomes officially adverse to United States foreign policy, just like support for Palestine already has.

[MaddogEngineer]

The Biden administration previously selectively sanctioned Israelis related to settlements.

https://www.aljazeera.com/news/2024/11/18/biden-issues-more-israeli-settler-sanctions-ahead-of-trump-term

Certainly those mid-level Biden White House staffers who stood in solidarity with the Palestinians will take this and run the next time Democrats win.

[Vryedni]

Lawless, Kahanist vigilantes aren't as bad as Hamas, but they're bad enough. They're a disgrace to Zionism. They can't be sanctioned hard enough.

[Thought about __ all my life]

Rule: Never argue an actual by a hypothetical. This is Kagan's great fault. Five year olds being taught about homosexual perverts and she fears parents will opt out of chemistry classes for their students.

[ReaderY]

I think the reality is the Constitution permits it. Our government and our society does not have to do it. But it can.

Ultimately we can shape the kind of society we want by only accepting immigrants we think compatible with us if we wish.

The Constitution protects the right of the People to peaceably petition THEIR government. But aliens on student visas are not not members of the People, our government is not theirs, and they do not have this right.

[Dr. Ed 2]

Damn right.

And the DC at Tufts had been at Columbia

[David Nieporent]

Direct Current? District Court? Data Center? District of Columbia?

[Magister]

Probably "Doctoral Candidate", referring to Rümeysa Öztürk. (Multiple umlauts are also not a valid reason for deportation.)

[Josh R]

Even if you are right on the law, you are missing the point of the article: it hurts the nation to do so. When we only protect speech we like, we end up suppressing many, many good ideas whether they come from citizens, permanent residents or other non-resident aliens. The reason we have a Freedom of Speech is because we can't trust the government to distinguish between the good and bad.

[jb]

Indeed. A lot of policy debates center around questions where the options are obviously Constitutional but still pose legitimate tradeoffs that people can disagree about: how progressive should the income tax be? should the government subsidize the purchase of electric cars? should we have a legal immigration system based on skills or family ties? There's all sorts of constitutionally/legally valid options that are nonetheless bad ideas, although people may disagree about which options are the bad ones.

[Thought about __ all my life]

I can't even grasp how we have 'Freedom of Speech' And government can't distinguish between good and bad. BUT YOU CAN????
Where is that different from saying "There is no good and bad"

[shawn_dude]

If a legal resident is subject to US laws, then they are "governed" by the US while residing in this country and are part of "the people."

[Bob from Ohio]

If a tourist is subject to US laws, then they are "governed" by the US while residing in this country and are part of "the people."

[shawn_dude]

Tourists don't pay income taxes, send their kids to local schools, etc. Tourists aren't legal residents.

[Bob from Ohio]

But they are "subject to US laws", which was your original point.

[David Nieporent]

That is your own personal view of the constitution.

[MaddogEngineer]

Not like yours, which definitely not personal, but authoritative.

[JasonT20]

The Constitution protects the right of the People to peaceably petition THEIR government. But aliens on student visas are not not members of the People, our government is not theirs, and they do not have this right.

Even so, as I was saying above, petitioning the government and freedom of speech are listed separately in the 1st Amendment. The text starts with "Congress shall make now law...", which means that what follows are general prohibitions on government power. There is no limitation on the freedom of speech, or the press, or religion to only "the people." A foreign student on a visa should be just as protected by the government not being permitted to prohibit free speech as anyone else in the U.S. That is because it is the government that is not allowed to prohibit free speech. It is not that "the people" have the right to free speech.

[Thought about __ all my life]

Well that makes no sense. We are letting people be murdered all over the world on their religious and other convictions. Yet Sen Kerry can go to China and say "we need a climate treaty" and know that human organ harversting, Uyghur detention and Falun Gong persecution is publicly known

[rloquitur]

You can have a robust commitment to free speech, but also have a robust commitment to retaining the polity's right to dictate the terms upon which people join the polity.

[Bob from Ohio]

"polity's right to dictate the terms upon which people join the polity"

Yes, the nut of the issue.

Cliche ridden substack articles from people no one has heard of does not change that basic fact.

[Martinned2]

"polity's right to dictate the terms upon which people join the polity"

What does that have to do with Green Card holders and other people who already have permission to remain in the US indefinitely?

[Brett Bellmore]

Having a Green card is probationary permission to remain in the US. And, "indefinitely"? Excluding some cards issued between 1977 and 1989, the longest they're good for is 10 years at a time, and renewal is discretionary.

[Martinned2]

Having a Green card is probationary permission to remain in the US.

In your imagination, maybe. The notion that Green Card holders aren't part of "the polity" is, frankly, bonkers.

[Brett Bellmore]

They are probationary members of it.

[Martinned2]

Says you?

[Michael P]

Says the fact that they have time-limited, revocable membership. This isn't rocket science.

[Brett Bellmore]

What Michael P said.

Do you not understand the term "probationary", maybe?

If you have a Green card, with few exceptions, you must periodically renew it, and that renewal is discretionary, not automatic. Between renewals you can get the card revoked for a variety of conduct that falls short of criminal. That's the way Green cards have always worked, so far as I know. It certainly was how they worked when my wife had one.

If you don't like your status in the country being probationary, you apply for citizenship.

[Sarcastr0]

You're adding probation to the mix so you can tamp down on liberty regarding people in the outgroup.

Because your libertarianism isn't.

[Commenter_XY]

Are you obtuse?

[Bob from Ohio]

"Green Card holders aren't part of "the polity"

A polity is a group organized for governance. Green card holders can't vote or hold office so are not part.

Its you that are bonkers.

[David Nieporent]

Excluding some cards issued between 1977 and 1989, the longest they're good for is 10 years at a time, and renewal is discretionary.

The card expires; the status does not. Renewal can be denied for the same statutory reasons green cards can be revoked; it is not "discretionary." (With one exception: the bizarre if-the-secretary-of-state-lies-about-you exception that Trump has been relying on, which may or may not be constitutional when applied to protected speech.)

[Randal]

One thing we'll have to do post-Trump is take out all the discretionary options of Cabinet secretaries. Also all the emergency powers of the Executive. The political consequences that previously constrained their abuse seem to have waned.

[Brett Bellmore]

Nah, executive discretion has been abused so long as I can recall, as have emergency powers. But if it takes Trump to make Democrats decide executive discretion is too dangerous for Presidents of ANY party to be allowed, well, at least it finally happened.

[JasonT20]

Does that mean that you support actually reigning in the Trump administration in a meaningful and effective way? To limit Presidential power as much as you would want a President that is a Democrat to be limited?

[Sarcastr0]

Your nah is contradicted by the end of your comment.

Did you forget your thesis halfway through?

[MaddogEngineer]

It's strange, having survived his first term and January 6, that you guys didn't get on that right away. It's almost like you want that authority too. But next time will be different!

Or it will be the revenge revenge tour, and your side will engage in the same behavior, while denying you're engaging in the same behavior.

[Randal]

He didn't go down this path as dramatically in his first term. There was some sort of emergency funding for the wall that the courts rejected, but that was about it. His Cabinet was more reasonable.

[JasonT20]

One thing we'll have to do post-Trump...

I am worried that it is too late. The problem is that the all of the political institutions that were supposed to provide norms have been damaged so severely, that they will not be able to do anything effective, "post-Trump." While MAGA Republicans don't have anyone that can replicate Trump's cult of personality and hold on the party via a loyal following among the GOP base, the Republican Party is not going to give up any power that they've gained from Trump's time in office. They are also not going to stop using his playbook at both the national and state level to hold onto power and further consolidate their control.

Doing anything about the damage Trump and the MAGAified GOP have done to our democratic institutions is going to fail unless MAGA voters lose their dominance of the GOP and MAGA influencers lose their dominance of the right-wing media sphere.

[Randal]

MAGA's only maybe 30% of the electorate. The problem is that liberals miscalculated and assumed that most everyone else would find MAGA to be intolerable, and overreached. There's another 20% or so that find MAGA to be tolerable, shockingly. But that's an easy 20% to persuade if liberals bothered to try.

[Thought about __ all my life]

All Wizard of Oz math to be sure.
Very few of those who you would call MAGA call themselves MAGA. This I am certain of. Randal never says what his belief is for that very reason. and he just can't think..."If liberals bothered to try" another label that only Randal can see. ARe we to think that of millions who hold what Randal calls a liberal position do so for similar reasons!! That is mathematically impossible to know or to find out. Many that Randal would judge to be anti-Trump are gay, pro-abortion, rabidly atheist , trans etc and have NO common basis but only a shared antipathy to anyone who says this is wrong and this is right. Dylan Mulvaney is a pervert. Does that make me MAGA

[Thought about __ all my life]

Jason means to say "unless we all become more like Jason, it will be hard for Jason to tolerate your existence"

[JasonT20]

Yeah, whatever. Nothing I wrote says what you think I meant. Having a broad spectrum of political views in the so-called "marketplace of ideas" is what I want, not for everyone to "become more like" me and share my political views. My whole point is that a rational debate over a broad range of policy ideas is being made virtually impossible by the cult-like following of Trump. That Trump, and this ironclad support from his most strident followers, has reduced the institutions that could check a demagogue to rubble.

I don't see how it is possible to deny that the Republican Party has become more and more intolerant of different ideas and policies within its own ranks. This started well before Trump, but it is loyalty to him and whatever he wants (today, since he might want something different tomorrow) that is the only thing tolerated the majority of Republican voters that show up for primaries. Just look to Congress over the last several years. Which party has had more members of Congress decide not to run for re-election or that were beaten in primaries because of opposition from its populist wing? Which has had more members of Congress flip on issues or self-censor their criticism of their party's leadership out of fear of that populist wing?

Those rhetorical questions have obvious answers, but Trump supporters will proudly celebrate the culling of "RINOs" and the subjugation of "establishment" Republicans until they want to play the victim, when they switch to whataboutism and point at Democrats with false equivalences and non-sequiturs.

[SRG2]

-----

[Bob from Ohio]

"antisemitic terrorism, antisemitic terrorist organizations, or other antisemitic activity."

Do we have a domestic shortage of such views? I don't think so, some commentators even here post such thoughts.

No need to tolerate it in guests.

[rloquitur]

Mahmoud Khalil update:

https://abcnews.go.com/US/mahmoud-khalils-wife-birth-after-ice-denied-request/story?id=121037090

Also, what is the effect of Zadvydas v. Davis: https://supreme.justia.com/cases/federal/us/533/678/

on the continued detention of Khalil? Could a court forbid his deportation then order his released based on Zadvydas?

[Foxwhelp]

No need to get to Zadvydas. He is detained right now solely to facilitate the deportation proceedings. If he is found to not be deportable there will be no reason to detain him and on that account he'll have to be released. Zadvydas requires the release of people whom the courts *will* allow to be deported but for one reason or another the government is unable to deport.

[Michael P]

The movie "The Terminal" suggests a resolution of sorts to this dilemma.

But I don't think a court can create a problem and then (validly) order his release because it forbade his deportation. Zadvydas should only apply if the executive is permitted to pursue deportation.

[Foxwhelp]

"But I don't think a court can create a problem and then (validly) order his release because it forbade his deportation. Zadvydas should only apply if the executive is permitted to pursue deportation."

This would not be the court creating a problem. This man has not been charged with the violation of any law. He is being detained for one reason and one reason only -- the government is trying to deport him. If the government's reason for deporting him proves invalid he must be relased because we do not imprison people until they have been convicted and sentenced following a fair trial. This is not radical leftism, this is something that's been believed to be the fundamental guarantee of a free society by the entire English speaking world since the statue of King Edward implementing the Magna Carta. How the right has come to forget this is beyond me.

[Michael P]

"This would not be the court creating a problem."

That was explicitly part of the hypo:

Could a court forbid his deportation then order his released based on Zadvydas?

Zadvydas says the government cannot indefinitely detain someone while pursuing depression, yet the hypo only specifies a court order as the reason that the detainee cannot be deported.

[JasonT20]

File this under, "The cruelty is the point."

[Brett Bellmore]

It's the paradox of tolerance. You want to live in a tolerant, peaceful society, but if you're too tolerant of people who want an intolerant, violent society, they may end up getting what they want, and your tolerance ends up self-destructing. OTOH, if you officially do NOT tolerate 'intolerance', you create an opening for the intolerant to just declare their own foes to be the real intolerant, and suppress them in the name of "tolerance".

You may even start out honestly only suppressing genuine intolerance, and segue by imperceptible degrees into pretextual suppression, because the people you disagree with will always look more intolerant to you than your ideological kin.

One solution is to be radically tolerant as to those who are already insiders, but to exclude the intolerant from gaining insider status. That way, if you start out a peaceful and tolerant society, you can hopefully remain one.

The present argument, I guess, is where to draw the insider/outsider line. I would say that citizenship is, definitionally, where that line is supposed to be drawn.

[Martinned2]

O, wait, we're supposed to be intolerant to intolerance? I thought that, in the Trump era, that was not OK?

[Brett Bellmore]

" I thought that, in the Trump era, that was not OK?"

Thus demonstrating my point about the temptation to define "intolerance" in a pretextual manner where your political foes get labeled as "intolerant" to have an excuse to suppress them.

[shawn_dude]

Oh... just like calling people you don't like "terrorists!"

[Martinned2]

Yes, I'm having a distinct sense of Inception here.

[Sarcastr0]

Lots of words, but this is literally a lot of words to say:

"Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect."

That's basically lawful evil: the mindset. It takes an incredible lack of self-regard to unironically post it.

[Sarcastr0]

This is the proposition that Brett is explicitly rejecting:

"The law cannot protect anyone unless it binds everyone, and cannot bind anyone unless it protects everyone."

I like this anti-Brett formulation a lot better, actually.

[Brett Bellmore]

Sarcastr0, citizens and aliens stand in very different positions relative to a government.

Citizens are bound by the law of their own country even when elsewhere. Criminal law, tax law. On the other hand, we have a nearly absolute right to enter and remain in our own countries.

Aliens are only bound by the law of another country while present within it. OTOH, aliens simply have no right to enter and remain within a country not their own.

Both are entitled to the protection of the law while in the country. But they have different sets of rights.

[JasonT20]

Both are entitled to the protection of the law while in the country. But they have different sets of rights.

How different? Only citizens have the right to vote. Only citizens have the right to whatever protections and representation the U.S. has negotiated for us outside of the U.S. through treaties.

Other than that, the government, through law, can provide benefits to citizens that aren't available to foreign nationals. Constitutionally, I can't think of much else, off hand, that distinguishes citizen's rights from the rights of foreign nationals. That is, there is the issue ReaderY has been bringing about when/if "the people" includes non-citizens of any type for purposes of the right of petition and assembly or for the 2nd Amendment.

[Sarcastr0]

Both are entitled to the protection of the law while in the country.

Not according to you, Brett. You support no end of government persecution of noncitizens.

You pretend otherwise, but every time you're tested by an actual scenario, you come down against liberty and humanity.

[Brett Bellmore]

"The equal protection of law" means, in a nutshell, that robbing, assaulting, and so forth, an alien, is as much a crime as doing the same to a citizen. It was to put a stop to the Southern states refusing to prosecute when crimes were committed against blacks.

Has anyone claimed otherwise? That you could mug or rape an illegal alien with impunity?

What it does not mean is that the government has to extend to them all the rights of citizenship, such as the right to remain here.

[Sarcastr0]

The government is doing the crimes. Assaults. Kidnapping. Menacing. And of course the kind of oppression only a government can do.

You're into it.

And not just for illegals. You swiftly expanded the set you have no empathy for to include the admin's full assault on all noncitizens.

Do you even realize when you adjust your positions to fit? And what that says about you?

[Brett Bellmore]

Look, unless you're an anarchist, you distinguish between a lot of things when done by government, and when done by others. Arrest vs kidnapping, for instance.

It's true that I have no sympathy for illegal aliens, save those brought here too young to have made the decision themselves. We really ought to arrive at a decent accommodation for them. But legally, not by executive fiat. But the ones who came here illegally voluntarily? Screw them.

But it's NOT a "full assault on all noncitizens". 95% of legally resident non-citizens have absolutely nothing to worry about, because they're NOT protesting in favor of terrorist organizations!

[Sarcastr0]

The government is doing the crimes.

95% of legally resident non-citizens have absolutely nothing to worry about
Where have I heard that before? Oh yeah, every police state says exactly that.

[Bob from Ohio]

"A quotation popularly known as "Wilhoit's law" is often incorrectly attributed to Francis M. Wilhoit:

Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.[10]

However, it was actually a 2018 blog response by 59-year-old Ohio composer Frank Wilhoit, years after Francis Wilhoit's death.[11]"

wikipedia citing
The Pithiest Critique of Modern Conservatism Keeps Getting Credited to the Wrong Man
“Wilhoit’s Law” was created by a different Frank Wilhoit.
By Henry Grabar
June 03, 20222:29 PM Slate"

You can stop using this repeatedly now. A Crooked Timber comment!

[Bob from Ohio]

Since thin skinned Sarcasto mutes me now, maybe someone else can let him know he is a clown quoting this.

[JasonT20]

I don't see where Sarcastr0 attributed the quote to a specific person. Even apocryphal or misattributed quotes can simply be used to make a rhetorical argument.

[Bob from Ohio]

He's citing it, repeatedly, as some sort of authoritative statement. Its from a Crooked Timber poster! Its like quoting Dr. Ed

He left that out on purpose because he gaslights.

[Vryedni]

Who cares where it's from? Sarcastro wasn't citing it as an appeal to authority. He was citing it as an empirically self-evident proposition. Personally, I think it's more airtight as applied to MAGA than to conservatism writ large, but that's approaching to-may-to, to-mah-to.

[JasonT20]

He was citing it as an empirically self-evident proposition.

There's a contradiction in that. Something that is "empirically" true has the support of objective observational evidence. Being "self-evident" is something so obviously true that you don't need to support it with evidence.

That quote is something that "feels" true to those of us opposed to the conservative worldview. I believe it, but I also recognize it as an opinion I hold about conservatism. Is that opinion based on things I see in how conservatives behave, what they say, and what reasoning they give for their views? Absolutely. People can and often do base their opinions on things that can be observed. But it will still be an opinion if it not testable. That quote about conservatism is not a hypothesis that could be "empirical," because it is not a claim that even could be proven correct, in principle, with any conceivable set of objective observations.

[grb]

Brett Bellmore : "You want to live in a tolerant, peaceful society, but if you're too tolerant of people who want an intolerant, violent society, they may end up getting what they want, and your tolerance ends up self-destructing."

OK. Now explain how that applies to the woman being deported because she wrote a school oped calling for the university to divest from Israel as protest against its policies. How do your pretty words relate to that case?

[Brett Bellmore]

BDS, "Boycott, Disinvestment, Sanctions" is an antisemitic movement intolerant of the existence of the state of Israel, which state is not just friendly with the US, but an ally.

[grb]

Uh huh. Just as I thought. All your pretty words above were meaningless. You will define any political message you don't like as intolerant and violent. The justification may be ludicrous as is the case here, but it will still excuse any exercise of state power against anyone you're against.

[David Nieporent]

You want to live in a tolerant, peaceful society, but if you're too tolerant of people who want an intolerant, violent society, they may end up getting what they want, and your tolerance ends up self-destructing.

So… deport all MAGA to CECOT.

[Randal]

Yeah, that was my takeaway. What are you gonna do, Brett, when your country decides that you're part of the violent and intolerant cohort?

[Brett Bellmore]

Notice that I'm a citizen, and I've all along been pointing out that the rights of citizens and aliens are different, so that 'gotcha' isn't particularly effective.

[Randal]

Are you sure you'll still be a citizen once Birthright Citizenship comes to an end? It's not an easy question. Which, by itself, is a problem... "administrative errors" against disfavored groups are surprisingly easy to get away with when the questions aren't practically self-evident.

[shawn_dude]

Meh... once you're "accidentally" deported to CECOT, you'll be outside of US jurisdiction and unable to return. Ooopsie!

[JasonT20]

How do you prove that you're a citizen if you aren't given any due process?

And how much did being a citizen protect Juan Carlos Lopez-Gomez?

[Brett Bellmore]

And how many times do I have to say that people accused of being illegal aliens have a right to an opportunity to dispute that accusation? I think Trump is going about this wrong, procedurally, even if I approve of the goal of deporting every illegal alien.

But illegal aliens have no constitutional or legal right to be in the United States, so the procedure that's due is procedure to confirm that illegality, and not much more.

And legal aliens have only a statutory right to be here, and Congress has foolishly delegated discretion over that statutory right to the Executive branch, so they're not entitled to much more process.

But both are absolutely entitled to the process a citizen wrongly accused would need to defend themselves by proving that citizenship.

[Sarcastr0]

People may be confused because your 'paradox of tolerance' post isn't so limited.
Or limited to noncitizens, really. Just some arbitrary set of ingroup and outgroup.

And you're quite explicit about how unprotected yet bound that second group is.

[Brett Bellmore]

Look, the paradox of tolerance is a real problem, regardless of how you decide to address it. Coming up with a way of stopping a decline into intolerance without instead ending up accelerating it is TOUGH.

The moment you decide that it's alright to punch a Nazi, everyone you want to punch starts looking like a Nazi. That's human nature.

But it's a necessary tough thing to do.

[JasonT20]

One solution is to be radically tolerant as to those who are already insiders, but to exclude the intolerant from gaining insider status. That way, if you start out a peaceful and tolerant society, you can hopefully remain one.

In the first place, the whole concept of "tolerance" vs. "intolerance" in your supposed paradox is subjective with no clear dividing line between them.

This is why I am confused. Who are the "insiders" and who are the "outsiders" and who gets to decide which group you belong to?

This is also why due process is so important: THAT is what we have to counter the "human nature" you bring up here. Trump, and his supporters like you, have decided that "illegal" immigrants are bad and that deporting them is the right solution to that. To use your metaphor, you've decided that it alright to punch them. And so what keeps the government from deciding that everyone that they don't like is an illegal and going ahead with the punching? Due process.

This is why it is not enough for you to just say, on the internet, that you think Trump is doing things wrong. Because, at the end of the day, you aren't doing anything about it. Are you telling the members of Congress that represent you to hold the Trump administration accountable for violating due process? Telling them that your continued support for them is dependent on them doing something effective about it? If the answer to those rhetorical questions is no, then that is why it is happening, why it will continue to happen, or even get worse.

[Randal]

Look, the paradox of tolerance is a real problem, regardless of how you decide to address it.

It's only hard if you insist on there being an out group, which, notably, is your entire insiders / outsiders premise!

That's the sick heart of MAGA, the undying need to have some outsiders to push around, whether it's brown people, trans people, elites, whatever. The more outsiders the better, it seems, which is why we have Trump bragging about how many people he's gonna deport. Because in some misbegotten zero-sum mindset, the more outsiders can be disenfranchised, the more the remaining insiders will be rewarded.

It's gross, and it's so you Brett. It's your entire thing. You're desperate to find people to push out.

The obvious answer to your conundrum is to stop framing the world as insiders vs. outsiders and tolerance vs. intolerance in the first place. First decide that everyone is an insider. That's called "all men are created equal" by the way. Once you've disabused yourself of the crutch of an insiders / outsiders mindset, you'll see that the question of tolerance just becomes a question of balancing the equities. And before you go there, balancing the equities also isn't zero-sum. There are various strategies for optimizing the balance of equities in order to maximize... liberty, utility, equality, stability, whatever. Of course, you can debate what we want to optimize for as a society, but that should never imply a need to be intolerant towards an out group!

[Thought about __ all my life]

NO, the urge to go full AI ihnuman and ignore human values must fail

"Philosopher Karl Popper described the paradox of tolerance as the seemingly counterintuitive idea that “in order to maintain a tolerant society, the society must be intolerant of intolerance.” Essentially, if a so-called tolerant society permits the existence of intolerant philosophies, it is no longer tolerant."

[JoeFromtheBronx]

The celebrated dissents of Holmes and Brandeis regarding free speech partially involved the speech of noncitizens.

The 1A is a general provision.

The back-end references "the people" though even then once people develop a connection to this country (including marrying citizens and raising citizen children), they are now part of "the people" to some significant extent.

Also, the rights of citizens are harmed when they are not able to listen to speech of noncitizens and associate with them.

Supreme Court precedent differentiates entry and removal. And, even as to entry, the cases (including Trump v. Hawaii) leaves open the possibility (such as violation of the Establishment Clause) that a government policy could be illegitimate in some fashion.

[Roger S]

The noncitizens can post their opinions on the internet, after they have been deported.

[Thought about __ all my life]

Careful whop you think is the Owl fo Minerva

In a letter to Harold Laski, Justice Oliver Wendell Holmes famously wrote:

I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.

[HazelMeade]

Just thought I would call attention to the revelations of Edward Snowden regarding the NSA and other intelligence systems datamining of metadata within the US, and remind you that this system is now under Donald Trump's control.
As if you didn't have enough things keeping you awake at night.

[Thought about __ all my life]

You only approve Snowden because you approve Snowden 🙂

[Roger S]

The article complains that people like Communists were deported. So what is the downside? A lot of good people want to come to the USA, and we do not need to be taking in Communist troublemakers. Immigration policy should be for the good of the USA, and that does not include Communist activists.

[Thought about __ all my life]

Eugene, WHERE is the dissent that is by its very nature anti-American ? You are addicted to generalities and Pollyanna Biden-like 'let's just get along"ism .

[Ed Grinberg]

See? It isn't bad enough that we have our own, homegrown antisemites. To demonstrate our "commitment to a culture of free speech," we must import foreign ones too!
This is BS, of course. The sort of foreigners who "support...antisemitic terrorism" also happen to (violently!) oppose freedom of speech. What a coincidence!

[shawn_dude]

This is a tired argument. You haven't shown that the people who opt to move to the US don't share some pre-existing values with their new country. Rather, you appear to assume that they come to the US in order to make us just like their prior home--hence your reference to the blasphemous cartoon and the outrage it created. It's not like American Christians have had their moments fighting blasphemy in the arts.

[TaioF920]

That is why they come. They come because conditions will be better for them here, whether it's because of job opportunities or free shit. I've rarely heard of any modern immigrant coming because they believed in U.S. values prior to coming.

[Thought about __ all my life]

Saint Thomas: “Thirdly, when any foreigners wished to be admitted entirely to their fellowship and mode of worship. With regard to these a certain order was observed. For they were not at once admitted to citizenship: just as it was law with some nations that no one was deemed a citizen except after two or three generations, as the Philosopher says (Polit. iii, 1).”

Commentary: Saint Thomas recognizes that there will be those who will want to stay and become citizens of the lands they visit. However, he sets as the first condition for acceptance a desire to integrate fully into what would today be considered the culture and life of the nation.

A second condition is that the granting of citizenship would not be immediate. The integration process takes time. People need to adapt themselves to the nation. He quotes the philosopher Aristotle as saying this process was once deemed to take two or three generations. Saint Thomas himself does not give a time frame for this integration, but he does admit that it can take a long time.

Saint Thomas: “The reason for this was that if foreigners were allowed to meddle with the affairs of a nation as soon as they settled down in its midst, many dangers might occur, since the foreigners not yet having the common good firmly at heart might attempt something hurtful to the people.”

[The Margrave of Azilia]

The Madison quote in the article is from his 1800 report on the Virginia resolutions. The purpose of Madison's argument it to say that banishment of an alien admitted for permanent residence is a punishment, subject to the constitutional constraints as to what must precede punishment - specifically, a jury trial.

Here's the quote again:

"If the banishment of an alien from a country into which he has been invited, as the asylum most auspicious to his happiness; a country, where he may have formed the most tender of connections, where he may have vested his entire property …where he enjoys under the laws, a greater share of the blessings of personal security and personal liberty, than he can elsewhere hope for; if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom [judgment] to which the name can be applied."

https://founders.archives.gov/documents/Madison/01-17-02-0202

Madison adds that admitting an alien into the U. S. is discretionary, but once admitted, that which had been a "favor" turns into a right of residence.

This analysis only applies to modern green-card holders; it doesn't apply to aliens admitted only temporarily, for a limited purpose (e. g., to study), or who have not been admitted in the first place.

Of course, needless to say, modern jurisprudence rejects Madison's interpretation. Thus, affirming Madison's argument would mean overruling a lot of Supreme Court decisions. I'm game, but there it is.

[The Margrave of Azilia]

Here is the full paragraph:

"But, in the last place, it can never be admitted, that the removal of aliens, authorised by the act, is to be considered, not as punishment for an offence; but as a measure of precaution and prevention. If the banishment of an alien from a country into which he has been invited, as the asylum most auspicious to his happiness; a country, where he may have formed the most tender of connections, where he may have vested his entire property, and acquired property of the real and permanent, as well as the moveable and temporary kind; where he enjoys under the laws, a greater share of the blessings of personal security and personal liberty, than he can elsewhere hope for, and where he may have nearly compleated his probationary title to citizenship; if moreover, in the execution of the sentence against him, he is to be exposed, not only to the ordinary dangers of the sea, but to the peculiar casualties incident to a crisis of war, and of unusual licentiousness on that element, and possibly to vindictive purposes which his emigration itself may have provoked; if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied. And if it be a punishment, it will remain to be enquired, whether it can be constitutionally inflicted, on mere suspicion, by the single will of the executive magistrate, on persons convicted of no personal offence against the laws of the land, nor involved in any offence against the law of nations, charged on the foreign state of which they are members."

And the Virginia and Kentucky Resolutions remain controversial to this day because of the espousal of state interposition against allegedly unconstitutional acts of the federal government.

The McCarran-Walter Act contains a 1798-style provision by which the Secretary of State can banish a permanent alien resident based on supposedly serious foreign policy considerations.

[David Nieporent]

The McCarran-Walter Act contains a 1798-style provision by which the Secretary of State can banish a permanent alien resident based on supposedly serious foreign policy considerations.

And like so many things with the Trump administration, they are taking a statutory provision that assumed that the government would act in good faith and are using it in bad faith. This was meant for extraordinary situations when, e.g., our sheltering of a foreign dissident or leader-in-exile is causing foreign policy problems. (Say, we admit the deposed shah of Iran and that so angers the new government of Iran that they seize our embassy and break off relations. To be clear, I'm not saying that the Shah was admitted for permanent residency or that we used this provision against him. I'm just saying that this is the type of harm the law was contemplating.) That's why it requires the Secretary of State to personally make the decision. Nobody at all contemplated that he would pretend to be deciding this about individual 20-year olds scattered around the country that no foreign country had ever heard of, let alone complained about.

[The Margrave of Azilia]

McCarran and Walter would be *outraged* at what Trump is doing! /sarc

[Avi the K]

They were not invited. They requested to come. A guest must respect the values of his host.

[The Margrave of Azilia]

The values of the host country include the 6th amendment.

[NvEric]

It must be strongly noted that concern for 'due process' of one or a few persons of concern is valid. No one should be unduly removed, however, the country has millions of illegal aliens in need of removal. These illegal aliens where illegally allowed into the country by a rouge and questionably elected president. Therefore, niceties may be bypassed to rid the country of a mass of illegal persons.

The overall impact of these illegal aliens is and will be unknown, but it will not favor the fabric of the country.

[David Nieporent]

I've heard Donald Trump called orange; I've never heard Biden called rouge before.

[Avi the K]

Considering the current atmosphere on campuses, I would say that propagating antisemitism constitutes a clear and present danger to the safety and other personal rights of Jewish students.