Last Call

This may be the most truly misguided if not utterly naive argument I've heard on dealing with the crush of winger nutjob laws at the state level.  Temple University law professor Peter Spiro argues that the Supreme Court, hearing oral arguments on Arizona's "Papers, please" immigration law this week, should let the law stand because the invisible hand of the free market will deal with those states accordingly.

No, really.  That's his argument.

In other words, the problem will largely self-correct. But even to the extent that it doesn’t, the courts should still refrain from overturning such laws. Judicial intervention risks generating its own backlash. If the Supreme Court strikes down S.B. 1070, anti-immigrant constituencies will redouble their efforts to enact tougher laws at the federal level. A cautionary tale here is California’s Proposition 187, a punitive immigration law that was blocked by a federal court in 1994 before it went into effect. Two years later, undaunted supporters helped push through the harshest overhaul of federal immigration policy in decades.

Even if some of these state immigration laws survive political, corporate and consumer opposition on the ground, it’s better to have the scattered imposition of state laws than the blanket coverage of a federal measure. Other states and localities are welcoming immigrants, legal or not. That fact gets lost in the common indictment of state and local immigration measures as a “patchwork.” One of federalism’s core virtues is the possibility of competition among states. Competition in this context is likely to vindicate pro-immigrant policies.

We should hold our noses and hope the Supreme Court lets S.B. 1070 stand, so we can watch it wither away on its own.

If I recall, we tried that for about a century or so at the beginning of the United States of America, and about 1860 or so it got to the point where that whole federalism thing didn't work out really well as a solution to slavery and civil rights.  As a matter of fact, given that Spiro admits Arizona's law is basically odious racial profiling, I'm trying to figure out an example where either a SCOTUS or a federal legislative solution to civil rights issues did not have to be resorted to because of the continuing damage to society that resulted in waiting for the free market to act.

Slavery went on in one form or another in the South for quite a long time mainly because of the economic conditions there.  In a very real sense the only reason that businesses are opposed to Arizona-style immigration nonsense is the loss of cheap, nearly indentured labor driving their costs up.  There's no altruism here.

When you profitize basic services and government duties, the least profitable among us are the ones who are left in the ditch.  What Spiro is suggesting is profitizing basic civil rights.  It's bad enough when laws protecting minority groups are put up for mob rule and subject to the tyranny of the majority.  Subjecting them to the invisible hand of the free market all but guarantees they will be lost.