Month: September 2025

The Clamor of Many Voices

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September 28, 2025

By Stephen Stofka

This week I have been reading Jill Lepore’s recently published book We the People. She writes about our legal and legislative institutions and processes, but it is very much a book about people. What became clear to me while reading the book is that we deny others agency and rights in order to protect our own agency and interests. We defend our values and point of view in defiance of accusations of prejudice.

To keep this within a reasonable reading length, I will break this down into two parts. This week, I’ll discuss the topics in Lepore’s book. Next week, I will use some examples in Lepore’s book to explore the similarities and contrasts in political ideology and judicial interpretation.

Lepore explores the history of trying to amend the Constitution. Only a few of the more than 12,000 amendments proposed to Congress in the past 225 years have been ratified. Throughout the country’s history there have been repeated attempts to amend Article 5 of the Constitution, the article that sets the rules for an amendment’s ratification. An amendment must win two-thirds of the vote in both houses of Congress before it is sent to the states for ratification. Three-quarters of  the states must ratify it before the amendment is added to the Constitution.

Leverage of power by a small minority had weakened the colonies under the Articles of Confederation and led to the drafting of the Constitution. Because of the three-fifths rule that counted slaves as three-fifths of a person, slavery gave the southern states excessive representation in Congress and in the Electoral College. Naturally, the slave states wanted to expand slavery to new territories and states to preserve and enhance those advantages. As the country expanded after the 1803 Louisiana Purchase, the framers knew that the ratification requirements set out in Article 5 were too onerous. The southern states and the newer states commanded far more legislative power despite their smaller populations. They used that power to block any amendments that threatened their advantage.

Throughout the country’s history, the amendment process has produced a lurching effect. Long periods of Constitutional inaction are followed by several amendments when there is a shift in popular sentiment and one party gains an electoral advantage strong enough to complete the obstacle path of ratification.

In the first part of the 19th century, sixty years passed without an amendment jumping the high hurdle set by Article 5. The deaths of 600,000 soldiers in the Civil War changed that political landscape, and the 13th, 14th, and 15th amendments were passed. Another 45 years went by before the four amendments of the so-called progressive movement passed during the Wilson era. These included the 16th amendment permitting the federal government to tax income, the 17th amendment enacting the direct election of senators, the 18th amendment prohibiting the sale of alcohol, and the 19th amendment, giving women the right to vote.

Lepore notes that there are two ways to amend the constitution. The first is by actual amendment and ratification. The second is through judicial interpretation. Because ratification is such an arduous process, each party tries to amend the constitution through judicial interpretation. There are two types of constitutional interpretation, statutory and contractual. A statutory approach reads the text of the Constitution as though it were a statute. A contractual approach regards the Constitution as a contract between states. Understanding the intention of the parties involved is key to deciding case law. That understanding may require the use of historical documents and other secondary sources.

Who decides how to interpret the Constitution? Jefferson and Madison favored a contractual reading, which emphasizes the mutual consent of the parties to the contract. The sanctity of contract was so important to the framers that Section 10 of Article I prohibits the states from passing any “Law impairing the Obligation of Contracts” (Source). Both men were advocates of the principle of nullification, that a state had a right to nullify any federal law that the state thought was unconstitutional. Hamilton and Adams preferred a statutory approach, relying solely on the text (p. 149-150. Note: any references I made with just page numbers will be to Lepore’s book).

Lepore writes, “Early Americans talked about their Constitution the way the English talked about theirs, less as a bucket of words than as a bag of principles. As Protestants, they considered any claim to an exclusive authority to interpret the meaning of scripture to be an act of religious oppression” (p. 149). A decade after the ratification of the Constitution chief Justice, John Marshall disagreed.

In the 1805 landmark case of Marbury versus Madison, Marshall established the principal that it is the Supreme Court that determines the meaning of the Constitution. Jefferson was President, and Madison was Secretary of State at the time of the decision, and neither agreed with this reasoning but Marshall’s decision scored a win for the administration so they did not protest. Under this principle, a few people, usually men, decide what the Constitution means. The formal process of amendment ratification requires thousands of people to agree.

Because it is so difficult to amend the Constitution, Congress and advocacy groups have tried to amend the constitution through judicial interpretation. The Executive and the Senate align to appoint federal judges and justices on the Supreme Court who will interpret the law in accordance with a political ideology. As early as 1801, a lame duck Federalist Congress reshaped the judiciary and Federalist President John Adams rushed to fill new positions in his last days in office (Source).

A strong disagreement with a Court’s decision has sometimes been the impetus for the passage of an amendment. The 14th amendment overrode the Supreme Court’s 1857 Dred Scott decision that all Negroes, slave or free, could not be American citizens (Source). The 16th amendment was passed to override the Supreme Court’s 1895 decision that a federal income tax was illegal (Source).

Let’s say that there are two broad types of judicial interpretations. One of those is that the constitution is fixed or, in Supreme Court Justice Antonin Scalia’s words, “It’s dead. Dead, dead, dead!” (p. 527). This type of interpretation tries to minimize any reliance on what the text implies, to “read between the lines.” Scalia adopted a form of originalism which Jack Rakove called “public meaning originalism” (Source). This school of originalism uses historical sources to understand the public meaning of the text of Constitution when it was written. This is essentially a statutory approach that I mentioned earlier. In the 1875 case Minor v Happersett, the Court ruled that the 14th Amendment did not guarantee women’s suffrage. In a strict textual interpretation of the amendment, the Court decided that suffrage was not explicitly included and could not be implied in the general phrase “privileges and immunities.”

In contrast, Chief Justice Roger Taney supported his opinion in the 1857 Dred Scott decision with a school of originalism that searches for the original intent of the framers (p. 212). That school relies less on the Constitutional text itself and more on traditional practice (Maltz, 2007). Taney wrote:

When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its “people or citizens.” Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being “citizens” within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit. (Source)

The second interpretative approach is that of retired Supreme Court Justice Stephen Breyer, who regarded the Constitution as a living document of values, principles and purposes, a contract between people and the governments who represent them (Breyer, 2024, p. xvii). The text of the Constitution points to the issues in the debate and cannot be the final word. As Jack Rakove (1996) pointed out in his book Original Meanings, there were inconsistencies in the wording of the hand-copied texts that were sent to the various states for ratification. In Breyer’s view, a judge’s task is to balance individual rights and the objectives of government policy.

Scalia and Breyer often debated in public (Breyer, p. 33). Scalia thought Breyer’s approach was ungrounded and arbitrary. Breyer thought that Scalia’s approach was too mechanical. He argued that an originalist approach did not achieve the objectiveness it aimed for. Since Scalia’s death in 2016, the Court’s conservative justices have struggled to apply an originalist interpretation in a consistent manner. They pick and choose the history that supports their opinions and reject the research and opinions of historians who come to different conclusions.

In Chapter 13, Lepore details this conflict in Second Amendment cases. After Justice Thomas invented a “text, history and tradition” test in writing the majority opinion in the Bruen decision, lower courts struggled to apply this multi-faceted analysis that combined both a textual emphasis and a historical-traditionalist approach. The confusion prompted another case, U.S. v Rahini, in which most of the conservative justices wrote separate opinions either concurring or dissenting with the majority decision (Source).

Lepore’s book is both informative and entertaining. She introduces us to long dead historical figures whose legacy affects our everyday lives and institutions. She takes us to seminal moments in history to give the reader a sense of time and place. She provides insightful analysis into the impassioned conflict between interests and principles. Next week, I will compare and contrast some of the judicial opinions and justices in Lepore’s book. Until then, baseball fans will have to content themselves with the start of an exciting playoff season!

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Photo by Rob Curran on Unsplash

Breyer, S. G. (2024). Reading the Constitution: Why I chose pragmatism, not textualism. Simon & Schuster.

Maltz, E. M. (2007). Dred Scott and the politics of slavery. University Press of Kansas.

Rakove, J. N. (1996). Original meanings: Politics and ideas in the making of the Constitution. Knopf.

The Intersection of Politics and Philosophy

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September 21, 2025

By Stephen Stofka

Last November, I first introduced Abel and Cain as a narrative device to explore two sides of an issue (Substack, Innocent Investor). I hope readers have enjoyed some of the arguments, whether you agreed with them or not. I often found it difficult to adhere to the discipline of reaching for arguments and reasoning that I did not agree with. Could it be that there was a bias in my thinking? Perish the thought! The boys are going fishing for a while as I analyze opposing perspectives in a more traditional format.

In politics, we contrast progressive and conservative ideologies. In philosophy, we contrast subjective and objective viewpoints. Let’s combine these two axes of comparison and look at some intersections. What does it mean to be conservative and subjective? Someone like Adam Smith might fit that description. The free market was an emerging consensus of individuals and businesses trying to satisfy their needs. He believed that this exchange, despite its flaws, would improve the general welfare of society.

What about progressive and subjective? Progressives want to manage the agenda in schools to instill the “correct” social attitudes in children, to steer their subjective experience along a progressive ideology. In his recently published book The Progress Trap, Ben Cobley (2025) writes that schools manage their reading lists and curricula to ‘decolonize’ the subject matter students are exposed to. Books that tell a historical narrative from the viewpoint of the colonizing nations are removed from the curricula. Is this a version of Fahrenheit 451?

Conservatives act to implant their ideology in the subjective experience of the population. In 2022, Florida passed the “Florida Parental Rights in Education Act.” After amendments in 2023, the policy required the removal of books with any gay character in them from K-12 school libraries (Source). Like the progressives, conservatives want to instill the “correct” attitudes in children.

Can conservative and progressives agree on what are the “correct” attitudes? It seems unlikely. In the preface to his book, Cobley identifies one cause of the policy failures and disagreements we have. We assume “that we are right and good and can only cause good to occur in the world, while our opponents can only cause bad” (p. vii). He notes that progressives rely on social science as their authority. They see the world in a mechanistic way of cause and effect, oppressors and victims. Arnold Kling (2017) has written about the three languages of politics and echoes the same point. Conservatives rely on cultural and religious traditions as an objective authority. In Kling’s typology conservatives view the world as a struggle between civilization and barbarism.

Is there a middle ground, an alternative authority that might resolve their differences? People form groups based on an allegiance to an authority, and group allegiances are not easily changed. There are several methods to effect change, some directed toward the subjective, others employing a more objective approach.

Subjective methods use persuasion to get others to change their authority allegiance. These include essays, videos, and debates that appeal to rationale as well as emotion. A more negative type of persuasion is ridicule, often used to silence opposition rather than convert opinion. Activist groups on both the right and left organize ridicule campaigns on social media to attack unwanted behavior and opinions.

In an objective approach, interest groups win control of civil institutions to exert change by legislation or policy. The Florida law mentioned above is an example of civil force by conservative groups. On the left we see mandates of diversity, equity and inclusion training in college curriculums. Copley writes that progressives have a “comforting illusion that things will inevitably get better so long as they and their allies are in control of things” (p. vii). Conservatives have a similar illusion but a different goal, the preservation of civil and moral order.

Critical to any human society are its resources. Progressives promote policies and investments that preserve the environment. The costs, both in terms of money and convenience, are a small price to pay for the benefits of a healthy ecosystem. The resources that conservatives care about are cultural and religious. These are the glue, the connections that evolve between members of a society. If preserving the environment means the sacrifice of these community connections, then conservatives would rather preserve those connections rather than the environment.

In a large multicultural democracy like ours, groups compete to design or control those institutions which shape the subjective experience of people in society. Since children are so impressionable, school curricula can become a battleground for ideologies.

Beginning in the 19th century, schools in states and local districts have struggled to control the religious traditions of students in their charge. A Wikipedia article has a history of the conflict over school prayer (Source). Since the 16th century, Protestants and Catholics have quarreled over Christian text and doctrine. Today, the Catholics include the Apocrypha, early Christian writings, in their Biblical canon. Most Protestants do not. Catholic doctrine holds that God inspired the authors of the Bible. Some Protestant sects believe that the Bible is the literal word of God.

Naturally, these two religious denominations brought their disputes into the schoolroom. Ending the practice of prayer in schools came not from a Christian denomination but a Jewish family disturbed that their son was forced to pray in a Christian manner. In Engel v Vitale (1962), the Supreme Court ruled that publicly funded schools must not promote any particular religion. They based their decision on the Establishment Clause of the First Amendment that prohibited the federal government from favoring a particular religion (Source). The Fourteenth Amendment extended those prohibitions to the state governments as well. The Legal Information Institute at Cornell University writes that it is “one of the most unpopular decisions in Supreme Court history” (Source). Numerous attempts to amend the constitution have failed to reach the required two-thirds majorities in Congress. Lastly could the current conservative court overturn that decision? In Kennedy v. Bremerton School District (2022), it allowed private prayer in public places, but it has reaffirmed that 1962 precedent prohibiting state-sponsored religious practice.

Is this the familiar battle between science and religion or between secularists and religiously affiliated? According to Pew Research, 70% of Americans are religiously affiliated and 90% of those affiliated are Christian (Source). In the battle between Christian sects for control of the classroom, Christians have lost the battle to secularists. Could the many Christian sects join together, agree on some central canon, then pass an amendment to the Constitution? Agreement over religious doctrine is a tall hurdle and amending the Constitution is particularly difficult.

In addition to persuasion, ridicule and civil regulations, governments can enforce ideologies through police force. In the former Soviet Union, the KGB suppressed unwanted thought by arrest and exile to the Gulag. In Nazi Germany, neighbors were encouraged to “rat” on their neighbors if they suspected any anti-Nazi opinion or behavior. In the three decades following World War 2, Red Guards in Maoist China punished their citizens for incorrect thinking by beatings and re-education in labor camps. Today, the citizens of North Korea are brutally tortured for expressing disloyalty to the Kim family who rules the nation.

What drives human beings to replicate their ideologies? While they may lack substance, they promote social cohesion among the followers, and endow the leaders with economic benefits. In his book The Social Conquest of Earth, E.O. Wilson (2012) described a critical aspect of human societies, their eusociality. First coined in the 1960s to describe bee colonies, Wilson expanded the term to describe the ability of human beings to build multigenerational societies and cultures. Biological organisms evolve through discrete or sporadic genetic mutations that provide an adaptive advantage. The evolution of ideologies is not discrete, but a continuous adaptation to social, cultural and political pressures.

In E. O. Wilson’s analysis, human societies evolve through the conflict between group cooperation and individual competition. Individuals struggle within each group to define the group’s shared values and outlook. As I’ve shown above, there is also individual cooperation within each group to win the competition between groups for control of a society’s institutions. The tension between the individual and the collective, the subjective experience and the objective shared environment, drives change in any human society.

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Photo by Dimmis Vart on Unsplash

Cobley, B. (2025). The progress trap: The modern left and the false authority of history. Polity Press. Available from Amazon

Kling, A. (2017). The three languages of politics: Talking across the political divides (Rev. ed.). Cato Institute. Available from https://www.cato.org/three-languages-of-politics

Wilson, E. O. (2012). The social conquest of earth. Liveright Publishing.

A red brick and pale rose stucco wall in a basement. In the upper portion of the wall, the brick is exposed

The Walls Within Us

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September 14, 2025

By Stephen Stofka

Sunday morning and another breakfast with the boys. This week Abel and Cain discuss political divisions. The conversations are voiced by Abel, a Wilsonian with a faith that government can ameliorate social and economic injustices to improve society’s welfare, and Cain, who believes that individual autonomy, the free market and the price system promote the greatest good.

Abel tucked some butter between his pancakes. “I usually turned off Charlie Kirk a few minutes after listening to him, but I was shocked when I heard he had been shot. His family must be devastated.”

Cain sighed. “You know, we come up with ideas every week. It’s another thing to have the energy and guts to follow through. Kirk was like 31 when he died. He started the Turning Points USA organization when he was 18. He walked the talk.”

Abel argued, “Kirk was a professional provocateur. Whether right or left, it’s not my style. I didn’t like the way that TP went after professors and universities.”

Cain shook his head. “Look, democracy is a fight to gain control of the agenda of a country’s institutions. The liberals had a lock on the educational institutions in this country. Kirk helped expose that and bring the policy pendulum back toward center.”

Abel smirked. “The pandemic lockdowns did that. Parents finally paid attention to their kids and what they were learning. Some parents weren’t pleased. Organizations like TP used that momentum to go after education at all levels. Critical theory, a graduate level course, became a punching bag for parents angry about what their third graders were reading.”

Cain argued, “Look, advocacy organizations throw a bunch of ideas and tropes against the wall and see what sticks. Liberal or conservative, that’s how these organizations work. So don’t pick on TP for using the same tactics.”

Abel shrugged. “Ok, good point.”

Cain continued, “We criticize these public figures but it takes a lot of courage to put yourself in harm’s way in public like that. Like Kirk, Trump was standing on stage when he got shot. That guy just missed. Robert Kennedy and Malcolm X were both sitting ducks on stage. JFK was in an open car. Martin Luther King on a balcony. All vulnerable to some nut with a gun.”

Abel shrugged. “Like I said, I felt bad for his family, but I didn’t like the way he milked hate.”

Cain argued, “Come on, promoting one’s values is not ‘milking hate.’”

Abel tilted his head slightly. “I disagree. He was contentious because he wanted to arouse divisive sentiments in his audience. The audience was entertained by that vitriol. Some people like to listen to hateful talk radio. Strong emotions help people feel they’re alive.”

Cain looked over his glasses at Abel. “And liberals don’t have strong emotions?”

Abel shook his head. “So many liberal talk radio stations have failed. It’s remarkable that a progressive like Thom Hartmann has survived (Source). A 2007 study found that 91% of talk radio stations in the largest markets were conservative (Source). Why? Liberals actually want to find solutions. That may be informative but it’s not entertaining. Conservative talk radio feeds the anger monkey in people.”

Cain smiled. “Oh, like liberals don’t have an anger monkey. Come to think of it, I don’t know when I last listened to talk radio. Too many commercials. I think I’ve become less tolerant of advertising in my listening stream. I don’t miss the days when all we had to listen to was radio stations while at work.”

Abel paused in thought. “I wonder if technology will advance enough that public figures will appear as lifelike avatars on stage. Already there are hologram recreations of past performances (Source). Combine AI technology to create a live performance? The day may be coming.”

Cain replied, “Politicians are reluctant to do townhall meetings. Sure, some would like to avoid protesters but also partly because of the security concerns (Source). 9-11 was sudden. After that, security precautions affected our lives. Tight security protocols at airports and on public transportation. A before and after moment. The increased targeting of public figures may mark a more gradual trend to ‘democracy by Zoom,’ or something like that. It might just become too risky to appear in person in a public venue.”

Abel woke up his phone. “I was reading a working paper published this year by the United Nations. The authors, Patricia Justino and Melissa Samarin, identified two dimensions of public trust. One is a trust in society’s institutions and government. The other is an interpersonal trust (Source).”

Cain interrupted, “Interpersonal like with people you know? Work mates and family?”

Abel replied, “Trust in dealing with strangers. Like, how well can you trust people in your daily life? Anyhow, that level of trust affects how we comply with laws and regulations, and how we cooperate with others. They cited a World Values Survey that’s been going on since the early eighties and they say there has been a decline in trust the past two decades.”

Cain asked, “Institutional? I get that. 9-11, the financial crisis, the pandemic.”

Abel nodded. “It’s global, not just in this country. The biggest declines are in Africa and Latin America.”

Cain asked, “What about the U.S.?”

Abel replied, “The U.S., U.K. and Australia decreased slightly. In China and Vietnam, institutional trust has increased.”

Cain frowned. “I think there’s also a decrease in trust between the states, between government institutions. Texas is suing New York over the mailing of abortion pills. Reminds me of the controversy over fugitive slaves. The non-slavery northern states did not honor orders from a slave state to return a slave that had fled into a northern state. There are sanctuary cities which won’t cooperate with federal immigration enforcement.”

Abel sighed. “Yeah, immigration is one issue. The abortion pill thing is different, I think. The states don’t regulate the mail. The federal government does. Congress has passed laws against mailing lottery tickets into some states but hasn’t passed a law against mailing prescription medicine (Source – Title 18 U.S.C. 1301). Besides, most mail-order prescriptions get sent from a California pharmacy so that involves California even if the controversy is between New York and Texas. This is an issue for Congress unless this activist court steps in and issues yet another decision with no explanation.”

Cain said, “Back in the sixties, people in southern states used to hang Chief Justice Earl Warren in effigy. They didn’t like the court’s decisions requiring them to desegregate schools, or allow marriages between consenting adults, regardless of race.”

Abel smirked. “Rural folks did not like ‘one person, one vote,’ something we take for granted today. Apportionment in a lot of states negated any population growth in urban areas and ensured rural control of state legislatures (Source).”

Cain nodded. “Yeah, that was the Warren court too. Another 5-4 decision that affected the balance of power. I’ve been reading Rick Perlstein’s book Before the Storm. It’s about the birth and growth of the conservative movement in American during the 1950s and early 1960s. It’s like a month by month account of what was going in in America during that time, seen through the lens of political ideology and alliances.”

Abel frowned. “Did he write Nixonland? Or am I thinking about Robert Caro?”

Cain replied, “Perlstein wrote that. He also wrote on the Reagan years. Caro did the biography of Johnson.”

Abel shook his head. “It’s weird. Both Johnson and Nixon were melancholy men. Why did Americans elect melancholy candidates during the 1960s? Kennedy’s election was aspirational, uplifting. He was assassinated in 1963. The 1964 election was a memorial to Kennedy in a way. Sometimes we elect people who reflect ourselves. Other time we elect those who seem to represent something we aspire to be.”

Cain nodded. “Maybe it’s a struggle between those two forces. Kennedy worried whether he could win reelection. He campaigned in Dallas to help shore up support in that state. According to Perlstein, the south was already turning away from Democrats. Nixon’s so called ‘Southern Strategy’ really began with Goldwater’s campaign in that election. Goldwater was so popular that he filled Dodger Stadium with people who paid to see him.”

Abel looked quizzical. “I thought Johnson trounced Goldwater in that campaign.”

Cain nodded. “He did (Source). Johnson ran his own election campaign and he used every bit of Presidential power to tarnish Goldwater. But all of the deep south states went with Goldwater, a total flip from the 1960 election. It wasn’t just folks in the south who were unhappy with decisions from the Warren court. The reaction to integrated schools and busing, another Warren court decision, was strong in northern cities. Big protests in New York City against busing. In Chicago, union activists protested affirmative action policies. They were afraid they were going to lose their jobs to black workers. In the 1968 election, the industrial Midwest states flipped red (Source).”

Abel sighed. “I think this country will ever be cursed by slavery. Trump wants the Smithsonian to put away some of its slavery exhibits. A ‘stick your head in the sand’ approach to solving problems. I think a lot of people thought that by electing Obama, a bi-racial candidate, America would finally put the issue to rest.”

Cain smiled. “Yeah, like China would adopt democracy and laissez-faire capitalism after being admitted to the World Trade Organization in the early 2000s. Like the country would play by the rules of free trade and floating exchange rates. Fat chance.”

Abel replied, “I think the International Monetary Fund supervises exchange rates, not the WTO. Actors within the system get away with murder because regulation and supervision is separated among different organizations. The U.S. complained about it a lot, but these international organizations are toothless.”  

Cain argued, “I think they’re constructed to have weak enforcement capabilities so that they do not threaten the sovereignty of the more powerful countries who set up these organizations in the first place. Every country complains about the anarchy that’s inherent in the international system, but no country wants to recognize any authority greater than their own.”

Abel laughed. “It’s the rule of self-interest. If a country wants help, then they are all about consensus values in the international community, blah, blah, blah.”

Cain frowned. “Back on the subject of slavery. Perlstein’s book reminded me that there have always been regional differences in this country. Madison worried about factions in general. Factions based on religion, culture, social class, economic self-interest (Source). As the country spread westward in the first half of the 19th century, he worried about factions based on geography, particularly North and South, and the issue of slavery (Source). While slavery was no longer an issue in the 20th century, racial prejudices run like an undercurrent through our history.”

Abel nodded. “I liked your idea a few weeks ago. Having four regions within each party. Fight faction with more faction. Formalize the regional differences in this country so that they are not just categories in some economic or political study. Let the divided interests speak and compete within each party. Otherwise, I’m worried that we are coming to blows.”

Cain stood up. “I feel bad for Kirk’s family, his wife and kids. His parents. No parent should see their child die. If I got to make one rule in the universe, that would be it.”

Abel looked up. “Like I said, I was shocked. I didn’t want to give you the impression that I lacked sympathy for his family. We’ve both been there. We know the hole that an early death leaves in our lives.”

Cain pursed his lips. “Yeah. Hey, I’ll see you next week.”

Abel said, “Here’s hoping to better news next week. See ya.”

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Photo by H&CO on Unsplash

Who Writes the Rules?

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September 7, 2025

By Stephen Stofka

Sunday morning and another breakfast with the boys. This week Abel and Cain discuss immigration and the limits of Presidential authority. The conversations are voiced by Abel, a Wilsonian with a faith that government can ameliorate social and economic injustices to improve society’s welfare, and Cain, who believes that individual autonomy, the free market and the price system promote the greatest good.

Abel said, “I was reading that the National Parks are so understaffed after all the DOGE cuts, there is no one at the entry stations to collect admission fees. People were stealing artifacts from one exhibit in Yellowstone (Source).”

Cain frowned. “The world will never be rid of free riders. A lot of people on the right view illegal immigrants as free riders. They skip the immigration line, bring their kids here to get free health care, free education and then they say that they don’t want handouts.”

Abel put down his fork. “My whole point was that the Trump administration is losing more money in admission fees than they are saving with these personnel cuts.”

Cain nodded. “I get that. I am drawing an analogy between unrestricted admission to National Parks and unrestricted immigration at the southern border. The Biden administration understaffed border patrol and told officers to help immigrants disobey the law. So which problem is worse? A few thousand people who don’t pay at National Parks this summer or several million people coming into the country, needing medical care, education and legal services? I think we need to keep things in perspective.”

Abel argued, “I think a key distinction of free riding is that a person is not doing anything illegal. They are benefiting from some common resource without contributing to the cost (Source). People who drive into a national park without paying a fee are not breaking the law if the gates are open and there is simply no one there to collect the money. Immigrants seeking asylum are not doing anything illegal.”

Cain replied, “Most of these people are not asylum seekers. They are lying to stay in the country until their case is heard years later. The cartels in Central American countries teach these people what to say. Smuggling people is more profitable than smuggling drugs (Source). The Biden administration was facilitating cartel profits. Trump shut that down.”

Abel smirked. “Despite all the conservative rhetoric about the ‘immigration surge,’ migration in 2023 was less than it was during any year in the Bush administration except one (Source). For most of that time, Republicans held the Presidency, the Senate and the House. So its OK to let immigrants in when Republicans are in power but not so for Democrats. The right wing media has fooled the public and Democrats were too clueless to combat it.”

Cain shrugged. “Bush increased funding for more fencing along the southern border. He called on Congress to pass immigration reform and they just can’t get the job done (Source).”

Abel said, “A big stumbling block is that employers don’t want to be held responsible for any immigration violations. Sometimes, employers hire employees through a staffing agency for seasonal or temporary work (Source). The benefit of this arrangement is that there is some legal distance between the employer and the employees. They technically work for the staffing agency who deals with the immigration stuff like the I-9 form (Source).”

Cain nodded. “The immigration raid at the Hyundai plant in Georgia this week was an example. Most of those who were arrested, it was like almost 500 people, were not employees of Hyundai. They were contractors or subcontractors (Source).”

Abel replied, “Yeah, we talked about this a week or so ago. Employers classify workers as subcontractors to avoid paying employment taxes.”

Cain shook his head. “I think a bigger problem is there are too many immigrant advocacy groups that don’t believe in national borders. Major immigration reform was like in 1986, I think. If immigration policy can’t be resolved over several decades, then there are influential constituencies who don’t want to resolve it.”

Abel laughed. “They are making money from seeking a resolution, not reaching a resolution. And politicians know how to cover their tracks. They can look like they are working on a solution while taking steps to sabotage the effort.”

Cain nodded. “Well, all I know is that these immigrants are costing a lot of money. New York City estimated a cost of $12 billion over three years (Source). Where does that money come from? Reduced services and higher taxes. The Congressional Budget Office released a report this summer estimating the three-year cost of the immigrant surge. A net cost of $9.2 billion in fed, state and local services after accounting for higher sales tax receipts from these immigrants (Source).”

Abel thought a second. “Look, I’ll grant you there are some short term costs but don’t forget the long term gains.”

Cain interrupted, “Any long term gains are offset by higher house prices. Immigrants increase demand for housing. House prices go up. Econ101.”

Abel shrugged. “It’s hard to argue that immigrants are responsible for higher home prices. Another false flag that conservatives raise is that immigrants were taking jobs from Americans. That didn’t happen. By the end of 2021, less than a year into Biden’s presidency, construction employment recovered to its pre-pandemic level. By the time he left office, construction jobs were up more than 600,000 (Source). So that surge had little measurable effect on construction jobs.”

Cain argued, “Conservative economists like Oren Cass argue that illegal immigrants drive down the wages of lower skilled construction employees (Source). The number of employees won’t tell you that.”

Abel checked his phone. “Well, it does show that demand for labor remained strong. Hold on, I looked at wages too. Here it is. The Bureau of Labor Statistics tracks the hourly wages of production and non-supervisory employees. That will give us a good approximate picture of any impact on wages. There was a short time in 2022 when real wages for those employees declined (Source). That was during the inflation surge. It quickly recovered. If there is any effect, it was small. The data just doesn’t support conservatives’ claims about the effect of immigration.”

Cain protested, “Look, the bottom line is that most of these people are lying and jumping the immigration line. The cartels are using people as a distraction from the transport of drugs and guns across the border and taxpayers are indirectly funding the cartels.”

Abel asked, “Do you agree with Trump that he can go after these cartels as though they were terrorists or paramilitary groups? This week, we just blew up a ship in the Caribbean that was supposedly run by the Venezuelan Tren de Aragua gang.”

Cain shrugged. “Hey, I’m not a lawyer but I agree that these cartels act like paramilitary groups. We should treat them as such.”

Abel asked, “No trials? No evidence? No oversight? What if Trump adopts the same policy as Duterte, the former president of the Philippines (Source). Trump could start sending hit squads into American cities to kill drug dealers. Is that OK? Where is the line?”

Cain shook his head. “No, that’s on American soil. That’s entirely different.”

Abel asked, “So a Border Patrol officer could just shoot someone on the Mexico side of the border if he suspected that person of being a cartel member? Like I said, where is the line?”

Cain nodded. “Ok, now you’re sounding like a lawyer. The boat they blew up was in international waters. That’s entirely different.”

Abel sighed. “I don’t know why conservatives hesitate to define boundaries for this President. He pardoned the January 6th rioters that tried to kill members of Congress, including the Vice President. What does this Republican Congress say? Silence. Edmund Burke, the 19th century founder of conservatism, would be ashamed of this Republican Congress. Society is bound together by morals, conventions and institutions as much as laws (Source). This Republican Congress has abandoned those standards for political expediency.”

Cain nodded. “Fear for their personal and political safety, I’d guess. What’s happening is that the MAGA crowd is trying to overturn policies set largely by Democrats when they controlled the House during the twelve years of FDR’s presidency and for forty straight years from 1955 to 1995 (Source). Immigration is a big one. What are the limits of Presidential Authority and can he declare emergencies without consulting Congress? Another contentious issue. Who was the first President to grab extraordinary power after declaring an emergency? FDR, a Democrat (Source). It’s ironic that Trump is using the same mechanisms to undo Democratic policies that began with FDR.”

Abel frowned. “The court ruled against FDR in the Humphrey’s Executor decision. They ruled unanimously President cannot fire members of an independent agency at will (Source). The court has recently loosened that restriction (Source) and Trump wants to fire Powell, the Fed chairman. The question I have is whether a President can undo 80 years of Congressional policy? Who writes the rules, Congress or the President? This court seems like they are ready to confer kingship on the President under this judicial theory of the Unitary Executive. I mean, even if Congress does pass immigration reform, what does it matter if a President can ignore the law?”

Cain argued, “Well, nobody said the President can ignore the law.”

Abel replied, “The court has deferred to the President’s interpretation of the law (Source) and Trump has shown a willful disregard for Congress and the law in general. I mean we all saw him on the debate stage in the 2016 campaign. He has an open disdain for politicians and both parties as institutions. I mean, this guy is not a conservative.”

Cain sighed. “I’ll grant you he has undermined conservative principles and taken over the Republican Party.”

Abel smirked. “And these supposed Christians who support him. Compassion is a hallmark of the New Testament in the Bible. There are too many Christians who lack compassion for anyone outside their group. Immigrants, blacks, liberals, mainstream Republicans even.”

Cain raised his eyebrows. “Their sympathies remind me of Christians during the Crusader era. Lots of fire and retribution. Protect Christendom from the infidels. That type of thing.”

Abel laughed. “Everyone who doesn’t agree with them is an infidel, I guess. There has to be a way to bring all these political groups together in this country or this nation is going down in fifty to a hundred years.”

Cain asked, “Going down or splitting up? We’ve got oceans on both sides, a tremendous amount of resources and weak neighbors to the north and south. I doubt if we are going down.”

Abel smiled as he stood up. “Ok, splitting up. We’re already split along partisan lines. People in one party don’t trust those in the other party. I think that trend will continue. Trump is just precipitating the break up of the country.”

Cain leaned forward. “A few weeks ago, we talked about each party electing candidates from regional partitions with the party. For decades, voters are sorting themselves out by region. Democrats on the Northeast and West coast. Republicans in the Midwest and South (Source). It may be the only way to keep this country together.”

Abel nodded as he moved his chair back and stood. “You may be right. Madison wrote in Federalist 10, I think it was, that the best way to curb the power of factions was to pit them against each other (Source). A ‘fight fire with fire’ approach. That’s why I think the Unitary Executive theory is not in the spirit of the Constitution.”

Cain asked, “Maybe we could talk about that next week. You heading out?”

Abel nodded. “I promised Claire I’d help her move some furniture around this afternoon.”

Cain laughed. “You don’t sound too excited. I’ll see you next week.”

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Photo by Seongil Park on Unsplash

Note: Real wages. Average hourly wages are FRED series CES2000000008. The Fed’s favorite inflation gauge is PCEPI series. Subtract the annual percent change of one from the other to get the percent change in real wages.