Browsing articles in "North America"
Feb 13, 2014
Erika Hernandez

The Path of Deserving


It is often said that undocumented immigrants entering the U.S. break the law. It is also said that they displace American low-skilled workers, causing their unemployment. Perhaps the lack of a better regulation has further avoided local low-skilled labor from gaining useful skills that could help them get employed in other sectors. It might be that the structural inequality in the States causes these workers to rant against immigrants without questioning why has the current system done relatively little to protect employment rights. True, no system is free from flaws. But systems granting minimum unemployment benefits are extant. Such as system is in place in Scandinavian countries like Sweden. The newspapers “El Pais” and “The New York Times” just realeased two interesting articles regarding the formation of a new NGO, Immigrant Justice Corps whose purpose is to provide legal counseling to immigrants. It is quite possible that, the lack of a better immigration system, led this NGO to seek to provide legal services to them. Such a decision could have been triggered by the recent consular services denials in states like Texas.

Source: Joe Klamar/AFP/Getty Images

Civil society has sought to put some order to the obsolete immigration system by incarnating groups such as the Immigrant Justice Corps. Its members are highly-renown people such as Chief Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit. Its Executive Director is the bright lawyer, Nisha Agarwal, who graduated Oxford University and Harvard Law School. In 2007, its founding members performed a study (the New York Immigrant Representation Study) and found that 60% of the detained immigrants to be deported in New York City did not receive legal counseling before deportation. Moreover, 40% of undocumented children are thought to be eligible for legal immigration but, by not receiving legal assistance, often end up in court for deportation. The NGO is currently seeking recent law graduates to commit for a two-year of service that would initially operate in NYC but its activities are expected to eventually expand to the rest of the country. Engagements like this are not only praiseworthy but also force us to think whether there exists a vacuum of power in the immigration system? For starters, the potential influence of such a coordinated CSO seems to be huge.

Edgar Arias Tamayo, who was sentenced to death in Texas on January without resource to consular services, has been one prominent case where consular services were denied. It could be the case that civil society did not reach out to provide legal services. Either way, Tamayo was sentenced to death without getting any legal recourse. Such a case is an indication that the immigration system in the U.S. needs to be reformed by looking after the displaced labor, the current system’s needs for labor and the new labor. Reaching consensus for such a system is so complex because its results are yet unknown and certain conservative citizens are highly opposed. Some of the measures that the GOP and the Democratic Party seem to agree are: increased enforcement, implementation of an electronic employment-verification system, and that labor offer will be sought to satisfy demand. However, negotiations on other areas are yet to be defined. These are: payments for outstanding taxes, issues granting permits to family members, whether there should be a point-based immigration system and if the bill will incorporate a long-term commitment to citizenship. Critiques say that GOP’s House Speaker, John Boehner, is compromising the bill’s future by catering to far-right conservatives in face of the coming midterm elections. By the same token, immigration advocates –like members of the Fair Immigration Reform Movement– have apparently become more radical by saying that they will confront GOP members. Whatever the reasoning for contention may be, it seems that immigration reform is not likely to resolve but after midterm elections.

The current labor structure in America looks in need of refurbishment. Labor reform needs to take place in order to protect American workers and “imported” human capital. Authors like Page and Simmons (2000) indicate that the majority of the poor in the U.S. are a ‘working’ poor class. Most of the lower-skilled workers are being employed by having false SSNs and, every day, they live in fear of being caught by the police. It is true that some came to the U.S. out of disappointment from their own country and perhaps do not have enough excuses. But many others came to America to feed their families and to fulfill their dreams of living a better life. I agree that America is a land where dreams come true. I also agree that there exist limited jobs to be evenly distributed to all. Yet, I also believe that it is a moral obligation for those in power to make sure that all those in need get an opportunity to thrive and to work enough to feed their children.

Jan 24, 2014
Erika Hernandez

The Need for Politics of Compassion


Protests supporting Edgar  Tamayo in the state of Morelos, Mexico. Source: AP.

Protests supporting Edgar
Tamayo in the state of Morelos, Mexico. Source: AP.

This Wednesday, Edgar Tamayo –a Mexican by birth– died through lethal injection in Texas. Texan authorities denied Edgar the right to use Mexico’s consular services and opposed to cancel such decision as advocated by the International Court of Justice and by Obama’s Administration. Whether Edgar was guilty or not for having killed a policeman, such issue reveals a deeper issue in the U.S. That of attaining inclusiveness. An important feature that any democratic polity bares is to cover all, if not most, of its societal groups under its umbrella of policies. Despite Martin Luther King’s fight to expand civil and political rights to African-Americans here, the first and most recent minority is not yet fully included in American policymaking –Hispanics.

In 1994, policeman Guy Gaddis, captured Edgar Tamayo for having committed robbery. Edgar tried to escape and shot officer Gaddis in the head. Twenty years after, he was charged with dead penalty and died. Indeed, anyone who bypasses the rule of law needs to be judged for his or her acts. Yet, what happens when the polities of a subnational unity, such as that of a local state, clash with those of the national unity which has adopted treaties protecting human rights? Well, in this case, we get a clash between a majority and a democratic polities.

The U.S., Mexico and other 174 countries have ratified the Vienna Convention on Consular Relations of the United Nations. However, in 2004 the International Court of Justice ruled that the U.S. had breached its obligations by having detained 51 Mexican nationals and deprived them from consular assistance, such as the right to gain legal representation. Through its Embassy in Washington D.C., the Mexican government tried to influence such decision but the attempts were futile. The OAS Inter-American Commission on Human Rights also tried but no echo resonated in Texas. With the hopes of having Edgar avoid the death penalty, citizens his hometown in the state of Morelos, congregated either to pray or protest his death.

Regardless of these appeals, the Governor of Texas, Rick Perry eloquently declared that this was not about racial discrimination but that of equality before the law. Through the State Department, the Obama Administration carefully cautioned the Governor that such measure could negatively impact the treatment of Americans abroad. This is of particular importance since there are around 1 million American expats living in Mexico. The administration condemned such action and called upon Congress to pass the Consular Notification Compliance Act. Whether the law passes or not, the lack of inclusion is more serious than what we might consider. As of 2011, nearly 60% of the inmates in the United States were minorities –blacks and Hispanics. However, both groups are only 28% of the American population and are greatly overrepresented in jail. Is it because racial profiling makes easier to catch criminals? Is it because poverty leads many steal to feed their families? Is it because resentment causes them to behave socially unacceptable? Or is it because the system simply does not offer them equal opportunities to thrive?

Whatever reasons you may want to attribute, the fact is that figures show the need for a better approach to this subject. A better and more inclusive approach or engaging in “politics of compassion” would be beneficial for the U.S. in different arenas. For starters, “politics of compassion” would be consistent with Martin Luther King’s calls for social justice. These new policies would also reinforce the core values of the American melting pot –no matter where you come from, this is the land where many come to make their dreams come true. First, Mexico and the U.S. are now deeply intertwined in several different dimensions: political, economic, trade-wise, social, among others. So, disregarding the rights of foreign nationals’ can foster resentment that can affect other areas of the bilateral relation. And second, the presence of Hispanics here is undeniable. True, some Hispanics are illegal and break the law. But this doesn’t make them undeserving of their human rights. If in a democracy all members are to abide by the rule, then they should also be equally incorporated. Whether documented or undocumented Hispanics, they constituted a reality in the states that can no longer be ignored. Such reality has already had a far-reaching impact. President Obama was voted in with and by the Hispanic support but he contradictorily paid back by increasing the number of Hispanics deportations. For now, it seems plausible that politics of compassion could drive the next presidential candidate into office.

Jun 4, 2013

Manning in Maryland

Bradley Manning walking to the court on the first day of the trial (from El País).

Bradley Manning walking to the court on the first day of the trial (from El País).

Yesterday began in the Fort Meade base in Maryland the military trial against Bradley Manning for accessing classified documents of the Army and sharing them while being deployed in Iraq as an intelligence analyst, which ultimately led to their publication in the Wikileaks website. He faces 22 charges, which are mostly related to wrongfully accessing computers and to misusing their information, government-owned and sensitive. The most relevant one, as foreseen in the pre-trial hearings, is that of aiding the enemy (namely, Al-Qaeda) for which he faces a life-long sentence. He has pleaded guilty of 10 of those charges, not including the latter.

The process and the charges must be considered in two stages. First, Manning’s direct actions. He has mentioned that he decided to share the documents for wide publication expecting to increase awareness about some of the failures of the U.S. military campaigns in Iraq. Otherwise said, Bradley wanted to promotion of transparency in governmental information.

Clearly, it was a very dumb way to do it. To begin with, he broke the ethics of any public servant, which is that the information with which one works belongs to the government and must be handled with the utmost care. In addition, the nature of the data he shared could have put his and his teammates’ integrities at risk. Next, he did put the U.S. in a very shameful situation as diplomatic communications, containing judgments sometimes not so favorable about other countries’ politicians which are publicly called friends but are privately criticized. And finally, he did not need to expose his military career in such a way for the world to know the severe problems in the U.S. foreign policy and armed interventions. Manning’s lawyer statement that he was “young and naïve but well-intentioned” is maybe a correct but too soft description of his actions.

The second stage of the process and the charges is helping the enemy. Once Manning has accepted his culpability in the first stage, the trial will move to demonstrating that Osama bin Laden asked for and received information that was available in Wikileaks. Whether or not this happened was out of control of Manning or, at least, he shares responsibility with Julian Assange, the manager of the Wikileaks site, and its webmaster, who are not wanted by justice for those charges. In the second stage of the process Manning will not be trialed for what he did, but for what happened after he acted. Can he be processed for something over which he did not (or not solely) have control?

Manning’s process is a court martial, thus having a special set of assumptions and rules. It is not a “normal” case of disclosed governmental information; its most disastrous use will lead not the destruction of a political career benefitting the adversary political party, but to endangering the lives of soldiers, the nullification of any progress made in the campaign, and, ultimately, putting at risk the national security. In any democratic regime government transparency must be enhanced, and the public must be made aware of the failures of government actions. Similarly, public officers who abuse of the access they have to privileged information must be punished. That is out of the question here, and Manning seems to understand it. What is pending of decision is whether he can be held accountable for what other people did with the information he released. That might be an unjustified burden on a single person, given the openness and plurality expected in a democratic regime. But, again, this is a military environment, and it is not only a judge, but his superiors, who will have the last word.

Mar 28, 2013
Center for Democracy and Civil Society

Same-Sex Marriage and the Expectations of Citizenship

Same-sex marriage rally in front of the U.S. Supreme Court

Same-sex marriage rally in front of the U.S. Supreme Court (March 27, 2013)

What should citizens expect from their government? The answer, of course, is relative. Demands in Syria, from a population engaged in armed revolt to secure a basic level of freedom from autocratic rule, are quite different than the demands we might find in Greece, where citizen protest continues to fixate on economic austerity and its painful impact on everyday life. Circumstance dictates the hierarchy of needs. But more importantly, circumstance can awaken new levels of political consciousness that change what citizens believe is reasonable and right to expect from a government.

We see examples of this right here at home, where earlier this week the United States Supreme Court received arguments on two cases that address the issue of gay marriage. One challenges the constitutionality of Proposition 8, a 2008 ballot initiative in California that bans gay marriage in that state. The other seeks to strike down the Defense of Marriage Act (DOMA), a Bill Clinton-era law that narrowly defines marriage as a union between one man and one woman in order to prevent the distribution of federal benefits to citizens in same-sex relationships. Over one thousand people rallied in front of the Supreme Court on Tuesday and Wednesday, almost all of whom displayed strong support for what has come to be known as marriage equality. For them, and millions of other supporters across the United States, expectations of their government are fundamentally an issue of fair treatment under the law.

By couching the debate in rhetoric of equality — like the movements for African American and women’s rights — gay marriage activists are forcing their government, and the country, to reconsider the meaning of citizenship in contemporary America. However, if we assume that the country itself is moving in the direction of marriage equality — as a number of polls suggest — then the more relevant debate is not one of definition or even growing public support. Rather, it’s about the proper role of the state in protecting an expanded form of citizenship, as well as meeting the expectations that come along with it.

During the oral arguments on Wednesday, Chief Justice John Roberts had an interesting exchange with the lead counsel for the party challenging DOMA. In referencing a “sea change” in the political landscape, Roberts seemed to imply that perhaps the issue of gay marriage should be settled by elected officials, either at the state or federal level. Put another way, it might be improper for an unelected judiciary to preempt a political solution by the country’s various elected institutions, if in fact those institutions reflect a popular will that is already moving in the direction of marriage equality. This argument is grounded in the supremacy of legitimacy, the idea that settlements by elected representatives are more likely to be respected and implemented on a broad scale, thus giving the country and its laws a genuine, coherent, and enduring democratic quality. It also displays a common fear, seen primarily on the conservative end of the spectrum, that judicial overreach is a dangerous abuse of power that drains society of its right to legislate according to its values or needs.

Yet, we need only take a tour through U.S. history to see where this argument loses steam. Minority rights, left to the democratic judgment of majority rule, often suffer without a stronger institutional protection. While it’s true that legislation often carries with it an immediate legitimacy that reflects a snap-shot reading of society, it’s no less true that Supreme Court decisions in this country carry with them a durable quality that is resistent to moments in time where society succumbs to fear or demagoguery, preventing the adoption or enforcement of illiberal laws. If citizenship is composed of certain rights, and those rights are to be applied universally, then they must not be held hostage to a public opinion that, while important, is fluid and reversible. Institutionally, citizenship is defined in the constitution, applied through democratic political institutions, but protected by the judiciary. For the Supreme Court to absolve itself of responsibility for this protection would be an act of institutional negligence, particularly when the core issue within same-sex marriage is not one of religion, values, or even federalism — it is about equal treatment for all citizens under the law. And this treatment cannot be put to a public referendum.

Nor can this treatment wait for a favorable political environment. Marriage has historically been managed on a state level, and the cultural and ideological differences across the country have created stunted, inconsistent, and wildly dysfunctional results. Nine states and the District of Columbia have so far legalized same-sex marriage. Thirty-eight other states have banned it. Unlike their straight counterparts, gay couples legally married in one state therefore risk having their union invalidated on a symbolic and practical level should they move to a state with a ban in place. The national “sea change” alluded to by Justice Roberts is a distraction from the reality that the rights under debate are controlled by states with very different politics. Even if same-sex couples remain in a state where their marriage is legal, they are still shut out from any of the 1,100 federal laws or programs that distribute marital benefits. Yet, a federal fix to legislative discrimination remains elusive, and the current state of congressional politics provides little reason to expect change in the near-term. Even in a highly developed and consolidated democracy like the United States, political institutions are not perfectly reflective of popular will. We see this on issues from gun control, to health care, to financial reform, where decisive legislative action is regularly disrupted by powerful interests in spite of widespread public support.

Reasonable people can disagree about the proper pace of change on many issues, or argue the merits of legislative incrementalism. But institutionalized discrimination, in this country, is worthy of rapid and decisive action. And we are fortunate to have a strong judiciary in place for just that task. In an environment of polarization and legislative paralysis, judicial action to protect the rights of citizenship is a reasonable expectation.

Nov 9, 2012

Burmese Days

Earlier this year, in April, Burma held a by-election to fill around 46 vacant seats (in the press, figures range from 44 to 48) in the Lower and Upper Houses of Parliament and regional assemblies. The largest portion of the contested places were in the Lower House, of whose 440 members 110 are guaranteed to be military and 80% of the rest are for the ruling Union Solidarity and Development Party (USDP), who won them in a restricted election in 2010. In this year’s contest, the party of Aung Suu Kyi (National League for Democracy, NLD), a conscience prisoner for almost twenty years and the main opposition figure against the military regime, won all but one of the seats for which it ran. Suu Kyi herself was elected to Parliament.

Some days before the election, Suu Kyi mentioned that there were some irregularities in the process, mainly intimidation and vandalism of political publicity, which called into question the free and fair nature of the process. On the one hand, NLD’s victories suggest that notwithstanding the certainly informed doubts cast by Suu Kyi, the election was not seriously altered in its realization or results by the government. In a recent article published by the Journal of Democracy¸ Larry Diamond calls the elections free and fair, especially if contrasted with previous elections celebrated under the military rule. On the other hand, there are some commentaries in the press pointing to the fact that, although it is noticeable that such a closed regime as the Burmese invited international observers for the by-election of 2012, these invitations arrived late and, once in place, observers faced some restrictions which prevented them from conducting an adequate assessment of the process.

With this background in mind, it is now useful to talk about the visit of a Burmese delegation to the DC area to observe the recent US elections. The day after Election Day, Jeff Fischer’s International Electoral Policy class at Georgetown University met with the delegation to exchange points of view on the election. These are some of the commentaries made.

Having visited polling stations in DC, Maryland and Virginia, the Burmese delegation was able to notice the decentralization of voting regulations: in some places an ID with a picture was required, in others an ID not necessarily with a picture and in still others no ID at all was needed. Furthermore, even within the same electoral district polling station workers enacted regulations differently. In Maryland, the delegation was allowed to enter a polling station but when they tried to do the same thing in another one in the same electoral district and county, their access was denied (apparently, the reason for this was that it was too crowded inside and the delegation had to wait until some people left the place). For someone not entirely familiarized with American electoral legislation the differences among or even within each state can be very confusing and, even more, the delegation noticed it opened spaces for the eventual commission of electoral crimes.

Indeed, the preoccupation for electoral crimes is large. By all means, the misbehavior expected in the US has really nothing to do with the frauds conducted in Russia in favor of Vladimir Putin or the rigging organized by Mexico’s PRI to stay in power. In its last week’s issue, The New Yorker published an article on the effects on having no national ID with a photo on eventual electoral crimes. One of the conclusions was that one of the crimes most likely to be associated with the lack of a national ID, voter impersonation, had very low rates, even marginal, of occurrence. On Election Day, the Washington Post website had a section where voting irregularities were enumerated. Very long waiting lines, regardless of which polling stations closed leaving people without voting. Due to crowded polling stations, provisional paper ballots were used, arousing suspicions among some electors. Some people could not find their polling station and ended up giving up. Problems with voting machines, which got jammed and delayed the process at the polling station or which allegedly switched the vote from one candidate to another. Of course, practically all of these issues were focalized and did not threaten the election. But in some countries they might have been able to raise questions on the overall integrity of the process.

So, notwithstanding those problems of diverse regulations and practical situations, the Burmese visitors, in a Tocquevillian fashion, happily underscored the democratic attitude of electors, polling station workers, candidates, and their supporters. Thus, political adversaries were very tolerant of each other (they mentioned that in Burma the reconciliation had been much more between Suu Kyi and the military rulers than at the level of the still very divided society), people did not try to overcome holes in the legislation and in fact everyone who wanted to vote could actually do so, without encountering language, physical accessibility or other kinds of barriers, and the high spirit of voluntarism from polling station workers allowed for voting sites to keep running in a cordial environment notwithstanding, so to speak, technical problems. These were lessons for them to take home.

However, they expressed their concern or surprise with the apparently little space provided for political minorities in the American party system. Congressional practices, media, and electors consciously or not supported the bi-partisan mode, leaving smaller parties without platforms to show their projects and to achieve representation. It can be said that the bi-partisan system is part of a very long tradition in American politics, and that it is the result of the combination of a strongly institutionalized system plus the median-voter theorem. As well, it is an interesting invitation to reflect upon the relative polarization and disenchantment produced by today’s parties. Hopefully, this dialogue will continue in the future.





Founded in 2004, Democracy and Society is a biannual print journal published by the Center for Democracy and Civil Society at Georgetown University. The D&S Blog provides web-only content, including special reports and investigative series, on issues relating to democracy and development.

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