Academic journal article The Journal of Gender, Race and Justice

The "Ethical" Surplus of the War on Illegal Immigration

Academic journal article The Journal of Gender, Race and Justice

The "Ethical" Surplus of the War on Illegal Immigration

Article excerpt

I. Introduction1

The Aristotelian philosopher, Gene Garver, argues that rhetorical claims have an "ethical surplus."* 1 2 When a person argues for a policy position, she commits herself to more than the specific claim for which she is arguing and also for more than what that specific claim logically entails. Ethical surplus exists as a result of the nature of practical reasoning, in which the character of the person speaking necessarily plays a role. Garver explains this concept in the context of legal argumentation by emphasizing that Brown v. Board of Education3 re-committed the nation to the equality principle,4 even though the decision regrettably failed to provide quality, integrated public schools to all children.5 In this Article, we adopt Garver's thesis of "ethical surplus," but we elaborate his thesis in a negative context. The war on illegal immigration generated a rhetorical commitment that extends beyond the specific claim to secure the borders against unlawful entry. The rhetoric of "war" in this setting generates an ethical surplus-ethical in the sense of an ethos, rather than being morally correct. After providing a short context of the rhetoric of "war" used in connection with Arizona's adoption of recent anti-immigrant legislation, we explore the implications of this rhetoric in the more recent effort to eliminate race-conscious educational programs focused on Mexican Americans in the public schools of Arizona. We conclude that the war on illegal immigration has generated its ethical surplus in a manner that betrays the true character of this war. It is not a war against illegal border crossing; rather, it is a war against the perceived threat posed by Mexicans living in the United States. As the ethical surplus of the antiimmigrant hyperbole becomes manifest, it reveals clearly the immoral and discriminatory character of the rhetoric at work.

II. ETHOS AND ARGUMENTATION: THE CONCEPT OF "ETHICAL SURPLUS"

Garver's proposition that legal arguments have an ethical dimension might seem strange, given the adversarial and representative nature of the judicial system. Lawyers regularly make arguments in the course of representing clients that are persuasive (in general) and effective (in the particular case) without personally subscribing to the goal of the argument. For example, good men and women regularly make legal arguments that result in guilty individuals walking out of the courtroom as free persons, and even most laypersons understand that good legal arguments can sometimes lead to such results. But it is also clear that a lawyer cannot misrepresent the state of the law in an effort to secure the acquittal of her client. Legal arguments have integrity as arguments. The integrity of an argument is not judged solely by the ability of the speaker to achieve the desired result (e.g., her client is acquitted); this would embrace sophism.6 Nor is the integrity of an argument judged solely by the desirability of that result in its own right (e.g., the wetlands are protected from development); this would embrace instrumentalism.7 Therefore, a compelling and responsible legal argument might fail to persuade a given judge, or it might result in a guilty person avoiding criminal sanction, without ceasing to have integrity as an exercise of practical reasoning.

If a lawyer cannot demonstrate a claim with logic, some conclude that the resulting argumentation is nothing more than a sophistic effort to secure the (illogical) adherence of the audience. Garver reveals that practical reasoning is more than sophism, and he suggests that legal argumentation is a paradigm of practical reasoning because it cannot claim the status of logical deduction, and yet it is not defined simply by whether one successfully motivates one's audience.8 Aristotle's view of rhetoric explains how legal arguments have an integrity that cannot be equated with their success in motivating the listener to act.9 Lawyers argue about matters that are indeterminate, utilizing practical judgment rather than drawing deductions about necessary truths by using strict reason. …

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