to be aware of consequences. >> consequences of a certain kind. if you are talking about the first amendment you are talking about consequences related to free speech or free religion. if you are talking about the fourth amendment you are talking consequences related to unreasonable searches and seizures. you are not talking the consequences of whether someone writes a horrible editorial about the in some news

>> there's a question for a whole lot of different reasons that you ought to address to members of the administration. and can be if you want to know some of the reasons that i can't really answer the question is, one, i don't know. i haven't studied the laws. that's always a good reason for not really making an opinion. [laughter] i agree with you that sometimes it doesn't stop me. [laughter] but another reason is some of those questions could come in front of us, and the reason that we, that i and other members of the judges in general tend, try not to express opinions on something that comes in front of them. it isn't just some odd moral code of ethics, though it is a code of ethics. it's because you will find, and i have found that very often when you really have to think something through and when you have good briefing and really good arguments on all sides and

maybe even as we had many that right-to-die case, 80 briefs, or in the affirmative action case, 100 briefs -- and we'll read those briefs when they're on the merits of the case -- when you get finished reading that, your opinion's not always the same as when you started. so beware of giving answers that you might give at a cocktail party because you don't want to be held to that. [laughter] there are good reasons for not expressing, in my opinion in this case, on something i don't know much about. that's all right, it was a good question so i could explain it. >> sure. >> when you and ken feinberg and i would work until the middle of the night writing legislative history and soon thereafter having one of your colleagues who shall remain -- justice scalia -- saying he never looked -- [laughter] he never looks at that. i'd like to know how important it is to the court as a whole,

justice scalia notwithstanding, that stuff that we wrote -- >> different people have different views on that. i mean, my view is i will look and read it and really self-pitying remark i'm about to make. i, too, have a vote. [laughter] and so it's different people have different views. some say, no, we shouldn't read that because we're just interested in this what the text says that the representative has voted on. and, you see, it's the question of that vote on a text -- and don't go beyond that because there's too much risk of distortion and so forth. and others, like myself, say i want to read whatever i can read to get enlightenment about what those obscure words -- and believe me, they are obscure, because if they were not obscure on its face, what's that case doing in our court? and i want to see what you wrote. and be i suspect you, like me,

when you wrote it would have tried to write something that was not going to be viewed as wrong by the congressman or senator for whom we worked. >> is there a difference between a committee report and debate on the floor where individual members get up and be opine? >> when there's a committee report, i know perfectly well i think in virtually every case it was sent around to the members, staffs of the committee. so they all had a chance to go over it. and they could object and congressman, maybe he or she won't object, but the staff person will. because he knows what he's supposed to be doing there. but with a floor statement people can say anything -- >> and do. >> and do. but times it's not -- i'm not thinking of, you know, things that are great political moments. sometimes they're a little political moment. they might be some obscure provision of a bankruptcy code. and and suddenly somebody wakes

up because a lawyer told him that, my god, look at those words. nobody's going to know what they mean. you say, what shall we do? well, here, give this floor statement. you then go to that lawyer's worst enemy and say, what do you think of this -- [laughter] and sometimes it turns out that everybody thinks, oh, please, introduce it. it'll help. and so you introduce it. and that kind of statement, i can remember one in section 13 of -- [inaudible] you remember what that was, that's the uniform, that have the something. i can't remember what it stood for, mass transit act in relations with unions, it was very, very obscure. and they had a couple senators there who said the way it works is it doesn't mean us. and and then the introducer says, yes, that's what it means. and somebody else says, absolutely, we're sure it means that. and when you see everybody around the room saying that's what it means, well, they wanted

it to serve that purpose. sometimes it doesn't mean that at all. that's somewhat less helpful. >> thank you. >> with respect to the presidential war power, in may of 1941 franklin roosevelt received a message from british prime minister winston churchill that the business mark had broken out into the atlantic and was a menace to all shipping and a mortal threat to england. having asked his non-lawyer adviser, robert sherwood, if he would be impeached if be he ordered the americans to try to sink the ship, he settled for authorizing the pby patrol plane partly piloted by an american crew to help search for the bismarck when the british lost the chase, and the pby found the ship. is o this is six and a half months -- this is six and a half months before parallel harbor -- pearl harbor. if justice breyer were sitting

in a court ruling on that, was that a lawful exercise of the president' war power? president's war power? the. [laughter] >> there are many questions involving the war power and the past that, luckily, could never come before us. [laughter] >> nobody would have standing to wring that case. >> be -- but you're actually sort of suggesting something that's interesting that was present in the core mat sue case. what jackson said in his dissent is he said here's what we should do. 1944 we know there was no risk of invasion in california. there isn't today. and probably there wasn't in 1942. but in january of '42 in california people thought this was. there was. and as long as they think there is, they will act. they will act.

to protect the country. regardless of what we say. so let them do it. and in 1944 we'll say they were rogue. but don't say they were right because if we say they were right, that precedent lies there like a loaded gun ready to be misused in the next time. now that's dramatic, and it makes a lot of sense. but actually i have to say when you really think about it, i don't think that's right. i preferred murphy who said it was wrong then, and it's wrong now. and the reason i don't like it is because if you try to have rules that are so unrealistic that the president feels he has to violate the law to save the country, sometimes he won't because he just can't, and the country won't be saved. and sometimes he'll violate l the law too often. so it's better if be you can do

it that you make the law consistent with those necessities that will arise to save the country. and that's much of easier said than done. and that's why there aren't really good, definite, clear, overarching answers to this kind of question, and you perceive bit by bit, little bit by little bit, and don't hold too much too fast. [applause] >> how do you feel the court adapts with new justices being appoint bed every so many years, and then again how do you feel the greater public of the united states of america interprets the judges as beings? >> as? >> as judges are put in and as they retire, how do you feel that the american public interprets their different opinions of them? >> well, the justice byron white

said on many occasions the answer, as far as i know it to your question, and what he said was with each new appointment, it becomes a new court. and how right he is. i mean, one person changes the dynamic. you get to know the people on the court very well. you get used to working together. you know pretty well what they think and how they'll react to different situations. and it's a good working relationship. it's a healthy working relationship. i've not heard, as i said, people shout at each other, no words raised in anger, no people being rude to each other. we're perfectly good friends on a personal basis. that was true and it is true. and a new person will change that working dynamic. he will not or she will not lead to raise voices. she will not lead o o people being rude.

she in this case, in the last two, will make a difference because they'll come with different approaches, and they'll change the argument about many things in different ways, so it remains to be seen. >> do you feel that the american public views you differently every time that there's a new justice? >> every time do they? i don't -- the public by and large gets its views through the press and television and so forth, and so a lot depends on what is said there. it's only in a, in a very long run and maybe never, you know, that people will understand fully. i mean, linda's gone back and be written a really good book on harry blackman and what was the abortion decisions at that time, and she had to go through dozens of papers and so forth. and that book will probably have an influence on how people see that court and those abortion decisions. but that's the job of historians.

>> good evening, justice. my name is jennedy. i've lived the past 21 years of my life in new york. i remember every second of 9/11. a girl down the street lost her father, so it was a very hard time for people in my area. now, my question is this: one day at work i opened up the paper e and it says that mayor bloomberg is advocating that the constitutional right to have a mosque near ground zero. my question to you is do you believe it's a constitutional right, or do the people of new york have a reason to deny a mosque being put up 13 stories high for reasons that it outshines any memorial that we had to these people who died --? >> well, yeah. i know you're talking about something that is very emotional and of very great, intense emotional interest to a lot of people. and moreover, i can't say too much about it because who knows

what will happen legally. but i would say this, that i have an impression that when we as a country do sometimes get into these very emotional arguments, there is also a countervailing tendency before deciding anything and before really making up your mind to go back to try to find out what the facts actually are. and that's a legal instinct, and a lot of people share it. and then once you find out what the facts really are, then you try to figure out what really would make since given a lot of desires that sometimes conflict. so i think, what i would suggest to people who are interested in this is there are people who have web sites on this. including the group that wants to put up -- i think, from what i know of it, it's a community center. and it will have a mosque, place of worship inside from what i read in the paper. just in the paper. for muslims, jews, christians and others. so i would suggest you go look

up the facts and find out what you think is the case and what isn't the case, and then make up your mind. that's an answer you'd expect from me. i'm a judge. [laughter] >> okay. i think we have time for the three people in line and probably that'll be it. >> so it would seem to me that your pragmatist approach would require you to have some sort of knowledge or understanding of the general will of the people or the value system, the current values of the people as a whole. justice holmes kind of thought about the prudent p man of average experience and how you can establish laws on that as a sort of aggregate of different experiences in this our country. so my question, first of all, is does it require some sort of understanding of public opinion, because it require some sort of understanding of the value systems that we as a country have right now? and secondly, how do can you find that aggregate of experience? is it just through opinion polls like you've talked about, or are there alternative methods to sort of understand --

>> no. you see, my reaction when i hear the question is to say no, yes. and it's a more complex thing. i'm not taking into account some poll of how people are feeling about a particular case when i decide it. that's out. it has no bearing. what i do think, and pragmatism isn't necessarily the right word either. i've called this thing sort of practical approach, i've called it not a set theory, but a series of approaches, and the approaches different from area to area -- differ from area to area. and it's, what, what can i say here? there isn't a good way of knowing what everybody's thinking, no. and that doesn't have too much bearing on how i'm going to decide cases. but i, now i'm tempted to contradict what i just said. [laughter] of course, i do have some concerns that people don't understand well enough how the court works. and i think it might help a

little bit, a little bit, it's really just sort of trying to do my part to write something that will help explain how i see it. even if my approach isn't the right approach. there are many different ways of going about this. >> i guess kind of what i was getting at is you spoke earlier about how -- >> i think we need to get on to the next -- >> okay. >> hi. good evening. i enjoy the colloquy so much. i'm recalling an incident which seems rather rare to me. i have recollection of it only happening once in my adult life, and i wonder if you could comment on this as to whether it was a way for the court to make democracy work. and that was where the court invited i don't remember if it was a party or a judge -- an -- there was an issue that was not

presented by the parties that were arguing before the court, and the court itself reached out, and i believe it was to mr. coleman, to come in and argue on behalf of another interest. i think it was a civil rights case. >> bob jones case. >> and i don't remember when it was or if you were on the court at the time. >> early 1980s. >> it seemed such an unusual thing -- [laughter] for the court to do. and i wonder be you might comment -- i wonder if you might comment on whether that was appropriate and would it advance your concept of making the court -- >> well, mr. coleman is here, and linda remembers that incident, and i will plead bias because mr. coleman is a friend of mine. so i'll say i'm sure it was a good idea. [laughter] >> just, five seconds of of context on that. that was an instance where the reagan administration was new

and had refused to defend the position taken by the internal revenue service under many previous administrations. and so the question was, who was going to, who's going to argue the case? and so bill coleman, very distinguished supreme court advocate, was invited by the court to take the position that the new administration had abandoned, and there was nothing at all inappropriate about it. it was, it was the court's way of making sure that the argument got heard. >> and that happens sometimes. i mean, it's not totally rare. it might have been rare in the circumstance because the whole thing was ready, but sometimes, usually we'll spot an advance when the two sides, for example, don't want to argue something. and even before the case is being argued fully, we'll appoint a lawyer to argue this point that isn't being -- >> you have the honor, sir, of the last question. >> and my name's coleman, too,

by the way. [laughter] i suspect i could probably get in trouble if i were to offer a donation to a policeman who stopped me in traffic, and yet i could probably not get in trouble for offering a few billion dollars to a congressman to affect a change that would be personally beneficial to me. as someone who's lived in this area for a long time, and can i sort of feel pity for the five today of the -- naivete of the tea party people coming in here with very little understanding of the dynamics of money in this government, certainly in this city, and i'm just wondering, you're talking about things you could undo. if you could undo something that, where people would say, yeah, we have the best government money can buy -- >> question, question. >> is there a legal way to undo

confession of bribery and the first amendment right? >> you're thinking of the case that came up with the citizens united, and i joined john stevens dissent in that. and every instinct i have about being cautious suggests that i should go no further than that in trying to answer your question. [laughter] [applause] >> i think we've had a good time, and we're grateful to you for joining us. [applause] >> thank you. thank you very much. >> stephen breyer is an associate justice of the u.s. supreme court. he was appointed to the court in 1994 by president bill clinton. to find out more about the court, visit supreme court.gov. >> next, joseph carens, political science professor at the university of toronto, argues that unauthorized immigrants who have lived in the united states for a sustained

period of time should be granted the right to ree main in the country. he presents his argument in a discussion with carol swain, political science and law professor at vanderbilt university, and jennifer hochschild, government and african-american studies professor at harvard university. the event is hosted by the massachusetts institute of technology in cambridge, massachusetts. it's an hour and 20 minutes. >> happy to serve as the moderator for what proms to be really -- promises to be really a provocative and informative talk and discussion. our lead speaker today is joseph carens. he is professor of political science at the university of toronto. his book, "culture, citizenship and community: a contextual look at justice and even handedness," won the c.b. pearson award. his research interest focuses on questions about justice, equality and freedom in the

democratic communities. he is particularly interested in the issues raised by the movement of people across borders and by ethnic and cultural diversity in all of its forms. his book was published last month by mit press and will be available for sale after the panel, and it's right behind us. so professor carens will speak for about 25 minutes. after that i'm going to moderate a discussion with our distinguishedded panelists who include starting from my left here, carol swain. she is currently professor of political science and professor of law at vanderbilt university and a member of the james madison society at princeton university where she was tenured professor prior to coming to vanderbilt. she's the author most recently of debating immigration which is a collection ofs essays that explores the nuances of immigration and citizenship in the u.s. and europe. she is also the author of black faces, black interests: the representation of african-americans in congress, which received the 1994 woodrow wilson prize for the best book

published in the u.s. on government, politics and international affairs, and that book also won numerous other awards. jennifer or hochschild joined harvard or in january 2001 after coming from princeton and is now the professor of government. professor of government and african-american studies, and she's also a harvard college professor. she also holds lectureships in the kennedy school of government and the graduation graduate school of education. she studies the intersection of american politics and political philosophy, particularly the areas of race, ethnicity and immigration and education l policy. she also works on issues in public opinion. she's the co-author most recently of the american dream in public schools published by ox university press, and she's also the co-editor of recent collection, bringing insiders in, transatlantic perspectives on immigrant corporation which is also for sale. our final presenter is mathews

risse. he's professor of public policy at harvard's kennedy school. he works mostly in social and political philosophy and in ethics and is the author of a quite influential article published in the journal of ethics and international affairs. before coming to harvard, he taught in the department of philosophy, in the program of economics at yale. he is currently working on a book, an essay on global political philosophy. so joe will do can his thing, and afterwards for the final -- we'll have a debate in which i'll be moderating, and i expect it'll be quite spirit bed. and for the final 30 be minutes we'll open up for questions from the audience. so with that, joe. >> well, thanks very much, melissa, for the introduction, and my thanks to deb for organizing this session and my thanks to carol and jennifer and mathias for agreeing to participate in the discussion. i should say i grew up just down

the road in wellesley and went to college a little further down the road at holy cross, so it feels like a hind of homecoming here today, and it's nice to be back home, and i'm looking forward to the discussion. in a book that provides the occasion for this workshop -- as you can see, it's a mini book really, but it's cheap. [laughter] in the book that provides the occasion for this workshop, i offer an argument as to why we should grant amnesty to regular my grants. i say we, i'm an american even though i live in canada where i'm also a citizen. i embrace the term amnesty, as you will note, though i prefer the term irregular migrants to the more common term illegal immigrants for reasons we can discuss later if you want. now, in the arguing for amnesty, i'm not going to challenge the conventional view that the state has the right to decide whom it will admit and the right to apprehend and deport migrants who settle without

authorization. there are reasons to question that assumption, but it's the one that most people hold, and so for the purposes of this discussion today, i just want to accept it as a premise. even with that premise, i think, states are sometimes morally obliged to grant legal resident status to irregular migrants, and i want to explain why. so let me start with a claim, an example of a claim for amnesty that i suspect most of you will accept, and this is the case of margaret grim ponce. this is a true story, by the way. so margaret was born in the united states. she moved to scotland with her or mother as a young child, at age 4 or so. and a few years ago at the age of 80 she left the u.k. for the first time to go on a family vacation to australia using her newly-acquired american passport. when she got back to britain, the immigration officials at the airport told her that, well, she was not legally entitled to stay. she had four weeks to leave the country. she was, in effect, identified as someone who had been an

irregular migrant for the 70-plus years that she had lived in this britain. since she had never established a legal right to reside there. and, of course, she clearly knew she was not a citizen since she had acquired an american passport for her trip, so the officials were saying in effect be, send her back home putting into practice the rhetoric one hears about what are often called illegal immigrants. well, you will be relieved and happy to hear that granny was not reported. once the story appeared in the newspapers, the moral absurdity of forcing this elderly come to leave -- woman to leave a place she had lived most of her life was obvious to the public. even if she had been an irregular migrant all those years, that clearly no longer mattered. so but think about that case. grimmond, i'm saying, had a moral claim, a moral claim to say in -- stay in britain and that was especially strong for

three reasons; she had arrived at a young age, she had immediate family members in britain, and she'd been there for a long time. and each of these elements is worth considering separately. so first the fact that grimmond arrived as a child meant she was not responsible for the decision to settle in the united kingdom. almost all young children where you live, for all young children, is a product of your parents' choice, not of your own choice. and that's important because people often insist that irregular migrants deserve to be deported because they have knowingly violated the law. well, you can't really say that about children. they can't be held responsible for violating immigration laws. but it matters where they live. in this g rick mmond's case, being raised in the united kingdom made her a member of british society regardless of her legal status, and it's the same for all children. the years of childhood are the formative years of education and wider socialization. and it's just morally wrong to

force someone to leave the place where she has been raised, where she's received her social formation, where she has her most important human connections just because her parents brought her there without official authorization. human beings who have been raised in a democratic society become members of that society and not recognizing their social membership is cruel and unjust. and currently, the rules in north america and europe threaten many young people in just this way. some of you may be familiar with the story of the young man at harvard that was in the newspaper a few months ago. i've forgot cannen his name, but he was brought from new mexico to texas as a small child, raised by a poor single mom. he went to school, worked hard, he did well. classic american dream story, won a scholarship to harvard. on his way home to see his mother, he was detained and threatened with deportation. well, fortunately, that deportation order has been put on hold, and it seemings as

though -- seems as though he'll get legal status. but granting legal status to children like him should be our normal policy, not a lucky exception for those who happen to get the support of a powerful community. in fact, there is a proposal before congress. it's called the dream act, that would do just that. and i must say i'm bewildered as to why anybody would oppose that. now, the principle that irregular status becomes irrelevant over time is clearest for those with young children, but i think it applies to adults as well, especially when they have close family connections to citizens or residents. take another case, the case of miguel sanchez. in this case i've changed some of the identifying details. so miguel sanchez could not earn enough to pay the bills in his hometown. he tried for several years to obtain a visa to come to the united states, he was rejected every time. so in 2000 he entered on foot.

he made his way to chicago where he had relatives and friends, and he started working in construction, sending money home to his father. he worked weekends at dunken doughnuts, he went to school in the evening to learn english. in 2002 he met an american-born u.s. citizen who lived in his neighborhood. they married in 2003, they now have a 6-year-old son. sanchez, his wife and son live in another city which causes high stress because a traffic stop can lead to his deportation. nor can they travel by plane. their son has never met his grandparents in mexico. meanwhile, they have friends, they own a home, they pay taxes, their child attends preschool, they've become friends with other parents. so he's an american, it's an american family.

but under current u.s. law there's no feasible path to regularize his status. and there should be. living with one's family is a fundamental human interest. the right to family life is recognized as a basic human right in european human rights legislation, and concern for family values has played a central role in american political rhetoric in recent decades. all liberal democratic state recognize the principle of family reunification, that is to say citizens and legal residents should normally be able to have their foreign spouses and minor children join them, and that usually takes priority over the normal discretionary or power that states exercise over immigration. but not when it comes to those who have settled without authorization. and it used to be possible to at least gain exemptions from the normal restrictions, but that's no longer the case. this is wrong. once someone has married an american citizen or resident with ties to the united states,

her interest in living here and her spouse's interest in having her live here all assume a new importance, and they greatly outweigh any interest the state has in departing a -- deporting a person in order to enforce immigration laws. so even if you think as i'm assuming here that the state is entitled to enforce it immigration laws, it's not right to do so without regard to the harm that is done by deportation. if an irregular migrant marries a citizen or a legal permanent resident, he or she should no longer be subject to deportation. miguel sanchez should have a legal right to stay. now, the final element in grimmond's case, the sheer length of time she had lived in the u.k., is also powerful. suppose she'd arrived in the britain at 20 rather than 4, would anyone really think that this difference would make it acceptable to deport her 60 years later? grimmond's case clearly illustrates there's some period of time beyond which it's

reasonable to deport people who have settled without legal authorization. but how long is too long? what if grimmond had been 60 and not 80? would that have diminished her claim to stay? i assume not. what if she'd been 40? well, the poignancy certainly diminishes, but the underlying principle remains. there's something deeply wrong in forcing people to leave a place where they've lived for a long time. most people form the deepest human connections where they live. it becomes home. even if someone has arrived only as an adult, it seems cruel and humane to uproot a person in the name of enforcing immigration restrictions. the harm is entirely out of proportion to whatever wrong is caused by illegal entry. when her own ordeal was over, grimmond expressed relief. i'm quoting, she said she had worried about moving to america because i don't have any friends or family there. when i first read this passage i

kind of smiled, but then i started to think about this. normally we don't think of moving to america as such a terrible prospect. think for a moment what it would have meant for an 80-year-old woman to be uprooted from the only home she's ever known? think about the fear and anxiety she must have felt being threatened with that. it might have happened. and then think about the reality of irregular migrants who can be and are deported even after very long periods of residence. now, grimmond was lucky because her case attracted much public attention. but had it not, the bureaucracy might well have sent her home. grimmond poses a particularly difficult challenge for those that would uphold the state's right to deport irregular my grants. is there anyone here who seriously would defend that grimmond should have been deported?

the moral rights of states reroads with the passage of -- erodes with the passage of time. as irregular migrants become more and more settled, their membership in society grows in moral importance. and the fact that they settled without authorization becomes correspondingly less relevant. at some point a threshold is crossed. they acquire a moral claim to have their actual social membership legally recognized. they should acquire a legal right of permanent residence and all the rights that go with that, including eventual citizenship. you might say how can migrants become members of a society without legal authorization? well, the answer is that becoming a member of society doesn't depend upon getting official permission to be there. it's a social fact. people who live and work and raise their families in a society become members, whatever their legal status, and that's why we find it hard to expel them when they're discovered. their presence may be against the law, but they're not criminals like thieves and murderers, and it would be wrong

to force them to leave once they become members. over time the circumstances of entry become less important, and eventually they become altogetherrer relevant. people who had been admitted as guest workers with the very explicit expectations that they would leave after a limited period were nevertheless granted permanent resident status. now, of course, the claim to stay was somewhat stronger because they had been officially invited in, but the difference is not decisive because, after all, the guest worker's permanent p settlement contradicted the terms of their original admission. what was morally important was that these people had established themselves firmly as members of society. they had to change the terms under which they had been admitted. of course, my argument that time matters cuts in both directions. if there's a threshold of time after which it's wrong to expel migrants, then there's some period of time before this threshold is crossed in which it's okay to ec pell them.

well, how much time must pass before irregular migrants acquire a strong moral claim to stay, or how long does the state have to apprehend and expel irregular migrants? i don't think there's a clear answer to that question, certainly not one i'm going to propose. the growth of the moral claim is continuous, though at some point be it becomes strong enough that further time is irrelevant. the examples i've cited, i think, suggest that 15 or 20 years are much more than enough. ten years would seem to me like a maximum, and i'd even argue that five years of settled residence without any criminal convictions would be sufficient to establish anyone as a responsible member of society, but i recognize one can argue about the details of the time. on the other hand, and it does seem plausible to say a year or two is just not enough to establish such a strong claim. well, the policy implication of this analysis is that liberal democratic states should move away from a practice of granting occasional large-scale amnesties

or applying the right to appeal to humanitarian considerations. instead, states should establish an individual right for my grants to transform their status from irregular to legal after a fixed period of time of residence. now, having a specific moment after which illegal migrants have a right to stay inevitably involves a moment of arbitrariness arbitrariness. it's more a matter of social psychology and of coordination given the need to settle on one point within a range. but if one asks why 5 rather than 1 or 15 it's easier to make the case that 1 is too short and 15 is too long. some people are puzzled by the weight that my approach gives to the passage of time rather than the actual range and intensity of the migrant's social ties in the new society. is it right to pay attention only to the passage of time as

opposed to this? well, there's merit many that concern. but people form attachments and become members of a community at different rates and the harm that's done to someone in forcing him to leave will vary as well, that's true. it's not the passage of time per se, but what that normally signifies about the development of human life. so i think it's appropriate to give special weight to the fact that an irregular migrants has received her social formation or married a citizen or a resident and to the person's not having a criminal record and having a history of employment. these are relevant considerations. but it would be a mistake to try to establish a much wider range of criteria of belonging and be an especially big mistake to grant more discretion to officials in judging whether individual my grants have passed the terrible hold of belonging that should entitle them to say this is an invitation to arbitrariness and

discrimination. now, i know that many people find my argument persuasive, quite possibly some people in this audience. but maybe the strong e principled objection is that amnesty rewards law brakier. law breaking. and it's true the rules governing our legislation are laws, but we don't describe drivers who exceed the speed limit as illegal drivers or criminals. in most states violations of immigration law are treated as an administrative or civil matter rather than a criminal offense. but then if you think about that, and there are good reasons why they do that, and so if you're accused of an immigration violation, you don't get all the protections you do if you're accused of a crime. but if thai not criminal offenses -- they're not criminal offenses, well, there's something wrong with describing those who break the law as criminals in any event, laws vary enormously in the order

they seek to maintain. laws against murder are more important against laws against theft. the laws restricting immigration seem to me a lot more like traffic regulations than like the laws prohibiting murder and theft. they serve a useful social function, but that function can be served reasonably well even if there's a fair amount of deviance and even if most of those violating rules never get caught. for enforce bement purpose bees, it makes sense to focus on the really dangerous violaters, those driving drunk or so recklessly as to endanger lives in the case of traffic laws and those who engage in terrorism or crime in the case of immigration laws. but for run of the mill violations; ordinary speeding and regular migration for work, just having the rules in place and occasional enforcement will maintain order. settling without authorization violates immigration laws, but that doesn't mean we should punish people many years after the fact, and there's a parallel

between statutes of limitations for criminal offenses and can a policy of not deporting long-settled irregular migrants. most states recognize that the passage of time matters morally, at least for less serious criminal violations. if a person has not been arrested and charged within a specified period, it's often 3-5 years actually, legal authorities may no longer pursue her for that offense. it's usually him, but not always. why do states establish statutes of limitations? well, some people say, well, that's because the evidence becomes less reliable over time, but i don't think that's a persuasive explanation because then you'd think it'd be particularly important to have statutes of limitations for the serious crimes, but those are the ones where we don't have statutes of limitations. so i think what it really reflects is it's not right to make people live indefinitely with the threat of serious legal consequences hanging over their heads for some long-passed action. except for the most serious sorts of offenses. keeping the threat in place for

long periods serves no good general deterrent function and causes great harm to the individual, a harm that's out of proportion to the original offense. well, if we're prepared to let time erode the states' power to pursue actual crimes, it makes even more sense to let time erode the power of the state to pursue immigration violations which are not normally treated as crimes, as i said, and shouldn't be viewed as crimes. many of the people who favor amnesty or as people prefer to put be it, earned legalization, stress the social cost and disruption that would be involved in trying to deport most of the 12 million -- many estimates say there are about 12 million people who have settled in the united states without authorization. deportation, the add slow e candidates say, is impractical and unrealistic, and i think the arguments are valid and helpful. but there's another more important reason why we should not try to deport most of these people. it would be moral hi wrong to do -- morally wrong to do so.

it would be unjust. and the argument that i've been developing is a constraint on the states' right to control immigration. it's not a repudiation of it. nothing in my argument denies the governments moral and legal right to deport those who settle without authorization as long as the expulsions take place at a relatively early stage of rez cens. even if we accept the state's right to control immigration, that right is not absolute and unqualified. the state eat right to deport irregular migrants weakens as the migrants become members of society. over time irregular migration status becomes morally irrelevant while the harm that deportation inflicts grows. liberal democratic states should recognize that fact by institutionalizing an automatic transition to legal status for irregular my grants who have settled in a state for any extended period. thanks a lot.

[applause] >> thank you for a very prosock ty talk -- provocative talk. very interesting too. carol, i know that you probably disagree most sharply with professor carens, and so my question to you is what issues or maybe who is missing from his argument, in your view? >> i think that he's tone an excellent job -- done an excellent job of trying to deal with a very difficult issue and acknowledging, you know, some of the problems, some of the views of the other side. one of the things he neglects, however, is the group that i care most about in this debate, and that is disadvantaged americans. the low-skilled, low-wage americans that are harmed by the competition with new immigrants.

and especially blacks, legal hispanics and poor whites with high school educations or less. so, i mean, that's one problem that i have with the essay. another is the fact that he calls them irregular migrants. under u.s. law they are illegal aliens, and that's what i intend to call them today. i think that by adhering o closely to political correctness that we have blurred the distinction between legal immigrants and illegal ones and that we shouldn't blur the distinction. i think laws matter. look at what has taken place now on our southern border. all the violence. and many of the immigrants that come, you know, from mexico, they're coming from a place where the rule of law is not respected. i think it's important for us in america if we really care about our country and if we really

care about the new immigrants, we need to enforce the rule of law. >> so in your view, you -- so for what -- so what should be done then for persons who are living here undocumented for years? joe makes the argument that the passage of time has some bearing. in your view, what should be done for those persons? >> well, first of all, i think it's up to the american people to decide what should be done. and until they have made their decision through their elected representatives that have not been compromised, i think we should enforce the laws that are on the books. and if we enforce the laws on the books, we say we can't deport 12 million people. first of all, we don't know how many are here. it's an estimate. it could be anywhere from 12 knoll 18 million. i don't know why we're saying 12 million. but if we enforce the laws on the books and go after the employers that are hiring, you

know, illegal aliens, i think that some people will deport themselves. they will leave. and for the others i think that administrative judges do an excellent job of deciding the cases that come before them. they can decide if there are circumstances that warrant an individual to stay. until we have actually reformed the legislation, i think it's just critical that we enforce the laws that are on the books. so i'm not saying that we should have a mass deportation, but i believe that a mass amnesty is problematic because it's not a win/win for america that there are calls to local communities that are not being borne by the federal dollars. and if you look at the situation we are in today in america, there's so many americans -- and, jennifer, you know this -- they themselves are waiting for the american dream. many of them are people of color, but some of them are poor whites in appalachia.

they need the american dream. so i think it's important we don't neglect the citizens. i think in america i think our greatest obligation are to those that are here legally. [applause] >> jennifer, so -- okay. i know, jennifer, that you're largely sympathetic to an open borders idea, so i'm going to tie a bit -- responding to carol's remarks here. but i wonder if you think -- and this is a question that suggests that she seems to be echoing in a certain way samuel huntington's thesis about the idea there may be too many immigrants of a particular nationality and such. do you think there's any merit in that idea? >> i don't think, actually, that's what carol's arguing, but i do think it's a terribly important issue. so huntington, i've spent a lot of time thinking about my former colleague's argument. as probably most people know,

his concern is not so much about immigration in general, but in particular mexican immigrants living this highly-concentrated southern, southwestern communities. and his arguments are when you have a population of immigrants who are highly concentrated who continue to speak the language of the country of origin, in this case predominantly spanish be, who don't evidence much desire to become citizens who remain very attached to the country of origin, that's a dangerous situation for american democracy. now, i actually think that he's wrong. in part he's wrong from pure call grounds that, certainly, the children of concentrations of -- in concentrated immigrant communities learning very fast, much faster than their parent bees actually want them to and by the fact you have a second and third generation, they stop taking spanish altogether, and they take spanish classes when they go to college. i think there's some serious

empirical problems, and the idea of remaining attached to your country of origin doesn't both err me. so i'm not persuaded by the argument, but i do think that there's an underlying question that is important. and i guess i would ask joe to think about -- i'm guessing what both joe and carol's views would be. which is to say, is there a point at which a democratic political system can get overloaded with people who are not, don't grow up in a comparable democratic political system? that's probably the most neutral way i can put it. you think about a democratic political system, it requires, first of all, a great deal of tolerance or respect or accommodation or at least acceptance of people whose views you hate, right? it accepts the tolerance of losing an election where you passionately care about the outcome because we're right and they're wrong and whoever they

are -- [inaudible] as was the case in 1800. the whole notion of kind of liberal right seems to be entirely intertwined with american democratic practices. i'm actually pretty close to an open borders person, so i'm not terribly concerned about any of these questions, but i do think there is a legitimate political debate over the politics around immigration. not so much the politics about deciding about immigration laws, but the politics around imdwrapts, i guess, is the way i want to phrase it. and i think what huntington's book does is raise in a rather every misguided way the question of whether there is some point at which a democratic political system either in local communities or in the cup as a whole -- country as a whole can get, in effect, overloaded. i can't imagine we ever would be, so this is not a concern i'm expressing about borders or

about immigration. but it's a somewhat different issue than the one joe's raising, and there's somewhat different than the one carol's raising, and i guess i would like to get it on the floor. if you've got a large immigrant population who fundamentally don't want to live by the norms that the receiving country thinks they should live by for perfectly legitimate reasons, is there ever a point at which this is a worrisome issue? and, again, my view is just be clear one more time. i'm not worried about this. [laughter] but i think it's a he jet mate issue -- legitimate issue to worry about. >> okay. i'd like to ask jennifer a question. i know much of your career was spent dealing with the issues that affected african-americans, and i just wonder how you feel about, you know, the data that actually shows that the people that are harmed most are legal hispanics, blacks with a high

school education or less, and if you look at their unemployment rates for both groups, it's over 20%. and meanwhile, the pew hispanic center has shown that there's something like it was eight billion illegal aliens holding jobs, and now it's been placed at an estimated six million, whether or not you think there's some -- >> i think it's a perfectly legitimate issue to worry about, absolutely. as you point out,s this is what i spent most of my career worrying about. i'm not persuaded about the empirical case you're making which is to say -- >> get the microphone -- >> yeah. my understanding is that it's actually pretty hard to find good evidence, sustained evidence other than in particular communities and in particular small job sectors where there is direct competition between immigrants either legal or illegal and the low-wage, low-skill american labor market. in the general, immigrants take

jobs or are offered jobs that americans don't take, don't necessarily want. now, there will be exceptions, and there will surely be direct competition in the some cases, and that's worrisome. but the economists will tell us, even the economists who look for this we're talking about a very small marginal impact on wages even in -- >> [inaudible] >> let me finish. a couple other points. the second thing i think to say about this is that a lot of economists will argue that, in fact, the american economy in general is much better off as a consequence of having a lot of relatively exploited workers, basically, which is to say low-wage, low-skill workers who take jobs for which they're paid very poorly. and that on balance is not necessarily terribly good for them but, in fact, is good for the economy, and the best way to try to grow jobs and grow the economy and enhance the possibility of other americans getting jobs is to have

low-skill, low-wage jobs filled with people who are willing and able to take them. and the third point i'd make and this is kind of the moral issue since we have two real philosophers, so i'll just raise it and ask them to talk about it, i'm not totally persuaded that there's a moral responsibility to residents of our country that's greater than the moral responsibility to residents of some other country who are desperately poor and want to enhance the quality of life for themselves and their families and their children. i think there's a rod moral responsibility about that -- broad moral responsibility about that issue, but i don't -- i'm not persuaded that the historical case which i know almost as well as you do is a moral case about extra claims from poor people who happen to live in los angeles as compared to poor people who happen to live in southern rural mexico. i think it's a -- the moral responsibility is a general one rather than a country-specific one. >> one of the things i see in that essay is that there's a lot

of compassion that i see among liberal elites for the poor of other countries. i wish a little of that would be shown towards our fellow americans. and the economists, what i've read they say that it's only a small sector of the population that's adversely impacted, but that small sector is the americans that have a low, high school education or less. and so there are millions of those people that are being displaced, and in parts of the country where there's not a lot of immigrants or whenever there's been an immigration raid you see whites, you see blacks, you see legal immigrants lining up to do those jobs that americans won't do. they do make hotels -- work in hotels. americans do work in restaurants. americans do landscaping. americans do construction. these are all jobs that

americans do when the jobs are there. they line up to do those jobs, even working in the meat packing industry. and i don't see how anyone could argue that we don't have a greater obligation to our own citizens, especially african-american descendants of slaves. and i feel like what the liberal elite has done is they've abandoned one group for the latest group, and, you know, maybe they abandoned the latest group for yet another group. and i find it problematic. and if we want to help the poor of the world, then don't just help the ones that can walk across the border illegally. create some type of lottery system where the poor from any part of the world would be able to compete for a certain number of visas and rather than have a situation where we sort of privilege the poor that can, like, mcgill that can sneak across the border and get it over here. what about the par poor in burr -- about the poor in burma and african nations or places where you can't cross the border? i think that's very problem