Constitutionally speaking at Village of Westbury Court
“The only thing new in the world is the history you do not know.” —President Harry Truman
Think the bitter debate over immigration policy and restricting foreigners began in our time? Think again.
Those in attendance at the Village of Westbury Justice Court/Town Hall for Constitution Day, Sept. 17, were in for a history lesson. In the course of an evening they learned that, when it comes to that contentious topic, what’s old is new again.
Village of Westbury Justice Thomas Liotti hosted his 11th annual program honoring our nation’s governing document. And as usual, he gathered an impressive panel to discuss immigration, presidential power and character, the First Amendment—and Abraham Lincoln.
Liotti noted that the building is on Lincoln Place, and in the course of the event he unveiled a bust of the 16th president he had ordered and praised the work of Westbury mason Domenico Buffolino, who created the granite pedestal.
Liotti dedicated the sculpture to Westbury’s Larry Boes and his late wife Joan, deputy mayor, for their long years of service to Westbury.
It joins the copies of documents hanging on the wall and representing the advancement of the rule of law and self-governance: The Magna Carta, Declaration of Independence, Constitution and Bill of Rights. Liotti thanked Mayor Peter Cavallaro and the village trustees for permission to add the statue.
Attendees watched two short videos, one on Lincoln and the other on immigration.
The printed program reproduced letters from various notables, including the White House on behalf of President Trump, declining Liotti’s invitations. Before the speakers started, Liotti held up a letter he had received from the office of Supreme Court Justice Clarence Thomas that day. Like his colleagues Ruth Bader Ginsburg and Chief Justice John Roberts, Thomas cited the demands of his schedule as a reason to decline.
“Part of our jobs as judges is to promote a greater understanding in our communities of the law and Constitution,” Liotti stated. “As a model court, we are hopeful that our good example will be followed by other courts in bringing the message of the rule of law to the people.”
“I remember as a child visiting Washington, DC, and seeing the original Declaration of Independence and Constitution. And it was thrilling,” said Westbury’s Arthur Dobrin, a Hofstra University professor. “I am still inspired by the ideals to which they point—justice, liberty and equality, in short, human dignity.”
Dobrin’s topic was titled, “What Kind of People Do We Want to Be?”
He talked of his paternal and maternal grandfathers emigrating from Europe—one for economic opportunity, the other to escape persecution.
Turning to the moral issues immigration raises, Dobrin said, “The Bible reminds us that we, too, were once strangers in a strange land. If the Bible speaks to you as a guide for living a honorable life, if it challenges you to be a better person today than you were yesterday, then it asks you to consider a place for a stranger—the refugee, the migrant, the asylum seeker.”
Dobrin, former executive director of the Long Island Ethical Humanist Society, continued in that vein, stating, “Moral progress is slow, but it can be measured by the expanding circle of who we believe we are and who is worthy of moral consideration. But progress isn’t always assured and it sometimes contracts in frightening ways.”
He concluded, “The Constitution is but a document, but when it is infused with the spirit of liberty and justice, then it is a document worth defending with our very lives. Compassion is the foundation of ethics. And without ethics, laws become bludgeons. But when we ourselves embody the spirit of open-heartedness, then our country can come closer to the ideal to which we aspire. The Constitution cannot save us from ourselves. But we can save the Constitution with truth and the moral courage to reach out to one another in the belief in the intrinsic worth and dignity of every human being.”
They Came For…
Erica Dubno has been a familiar face at Liotti’s programs. Based in Manhattan, she has handled cases before the Supreme Court and her topic was “Immigration and the First Amendment.” She asked that the famous quote by Lutheran Pastor Martin Niemoller, dated to 1946, be included in the program handout:
“First they came for the socialists, and I did not speak out—Because I was not a socialist.
Then they came for the trade unionists, and I did not speak out—Because I was not a trade unionist.
Then they came for the Jews, and I did not speak out—Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.”
“It’s important for us today to realize that we must be able to speak out for people whose voices are silenced and don’t have the microphones or the platforms to do so,” Dubno stated. “The dark side of the First Amendment is that it does allow people to speak and say hurtful, harmful, racist things. But it also allows people to come back and talk about how much immigrants provide to our community, how much they enrich all of us in the tapestry that is part of our [heritage].”
She emphasized that the First Amendment only applies to government restrictions on speech.
As far as the Bill of Rights, she wrote in a follow-up email to The Westbury Times, “The Supreme Court has extended constitutional rights to anyone in the country—regardless of their status. This includes due process and the right to counsel, etc.”
Lately there has been some disturbing cases of undocumented immigrant activists who’ve spoken out and soon after were arrested by Immigration and Customs Enforcement (ICE), Dubno related.
She mentioned that Twitter and Facebook do have restrictions on hate speech.
Echoing Niemoller, Dubno concluded, “Ultimately, if you don’t speak out now, there will be no one left to speak out for us.”
Edward Paltzik, who like Dubno also spoke at the May 1 Law Day program in the same chambers, covered the legal perspective on immigration.
He began with the first major crisis affecting the young nation. Fear of and panic over America’s former ally, France, led President John Adams and the Congress to pass the Alien and Sedition Acts in 1798. Among other legislation, it restricted speech and gave the president the power to deport any foreigner considered to be dangerous to the country.
The law was opposed by Thomas Jefferson and the Democratic-Republican Party he formed in opposition to Adams’ Federalists. When Jefferson captured the presidency in 1800, he let the Acts lapse.
“You have the same dynamic now,” Paltzik reflected. “Whenever there is an issue of immigration, generally speaking, there’s going to be one party that stands to gain from immigration and one that stands to lose.”
In the 1840s and 1850s there was an enormous wave of Catholic immigration, resulting in a very strong anti-Catholic backlash. A major political party, the Know-Nothings, arose as a result and nominated former President Millard Fillmore and actually got 21½ percent of the vote in the 1856 presidential election.
Long Island’s own President Teddy Roosevelt presided over one of the most significant periods of immigration growth. According to Paltzik, TR had a mixed record on immigration, progressive in some ways and restrictive in others.
TR’s policy can best be summed up by this quote: “We should insist that if the immigrant who comes here in good faith becomes an American and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin. But this is predicated upon the person’s becoming in every facet an American, and nothing but an American.”
TR’s cousin, Franklin Roosevelt, per Paltzik, “was involved in one of the more regrettable incidents in American history” when he signed Executive Order 1066, incarcerating about 120,000 Japanese-Americans who were living on the West Coast.
“There was little public opposition at the time to what was a very unfortunate measure,” Paltzik observed.
Speaking of executive orders, until the Obama and Trump presidencies, these presidential directives were rarely used in the realm of immigration—policy was mostly done via Congressional legislation.
But in today’s bitterly divided and partisan politics, he affirmed, such legislation is almost impossible to pass.
“So we’ve had times of crisis, and although politics was just as nasty then as it is now, there was a little bit more bipartisanship and collegiality,” Paltzik said. “But if you look at some of the votes on some of those laws that I’ve mentioned, they were passed [by overwhelming majorities].”
Regarding President Trump’s so-called “Muslim Ban,” at first blocked by the courts and then modified by the administration and subsequently approved by the Supreme Court, Paltzik noted the law gives the executive such power.
“The question is, does Trump—no matter what side you’re on—have the power to [impose] the Muslim ban and appropriate military funds to build his wall? The answer, in my opinion, whether you like it or not, is yes.”
He quoted Section 212 of the Immigration and Nationality Act of 1952, which states, “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Courts, he said, have upheld the president’s authority in this area over the years.
“Ultimately, a lot of [immigration] discussion today is ideological and it’s cultural,” Paltzik stated. “People have different opinions. What the law has to say about the issue is a little different than what the cultural debate has to say.”
No Chinese, Please
Peter T. Cavallaro, son of the mayor, practices commercial litigation law in Manhattan. He focused on the Chinese Exclusion Act of 1882, the first time Congress passed a law explicitly restricting immigration from one country.
In the decades after the Civil War, the U.S. experienced great economic growth. Chinese laborers were encouraged to come to the U.S. to work on the expanding railroads. But they were despised and viewed with suspicion by many Americans, who thought the foreigners were taking their jobs.
In the legislative debates that led to the Exclusion Act, the Irish enclaves in the northeast were in favor of an open door policy with the Chinese, Cavallaro noted, because they suspected that if exclusion was applied to one group, it could easily be applied to another.
Big business, as today, was in favor of having an untapped pool of cheap labor and wanted to keep the door open.
In 1882, the Exclusion Act passed Congress and banned Chinese immigrants from coming to the country and forbid those already here from becoming naturalized citizens. A later act imposed restrictions on the resident Chinese, requiring them to carry an ID card—essentially an internal passport.
“Just like today, after those acts were passed, a flurry of litigation arose to challenge them,” Cavallaro said. “And just like today, the Supreme Court was seen as the ultimate arbiter of if those acts would be allowed to stand.”
The nation’s highest court sided with the government in these challenges, articulating what is called the plenary doctrine. It states that Congress’ authority to regulate matters of immigration policy rises from the very essence of its sovereignty as a co-equal branch of government.
“Pursuant to this doctrine, Congress’ authority is treated deferentially by the courts and today you will rarely, if ever, see a court step in and invalidate a broadly applicable act of Congress regarding immigration law,” Cavallaro affirmed, going on to say that courts will rule on particular cases challenging the validity of one’s detention or deportation based on the facts of those cases.
“But because of the plenary power doctrine, you will not see a case of a court invalidating an immigration law pass by Congress,” he said.
The 1924 Immigration Act, according to Cavallaro, took the plenary power of Congress to its logical conclusion as it imposed severe restrictions in the form of quotas and permanent numerical limits on immigration.
“It hit hard Jews, Catholics and Italians—immigrants from impoverished areas of Southern and Eastern Europe,” he observed.
The Immigration and Nationality Act in 1952 abolished discrimination on matters of race with respect to naturalization and it also retroactively took out discriminatory language. Reflecting the contemporary fear of communism, it also gave the government more tools to deport those illegals suspected of communist sympathies.
Perhaps most consequential were the amendments to the 1952 Act, passed in 1965, which repealed the national-origin quotas and gave preference to those who already had family here, as well as immigrants possessing vocational skills.
The results were to vastly increase immigration from Asia and Latin America and as a consequence, profoundly change the racial/ethnic composition of the United States.
Cavallaro summed up, “United States constitutional history—and history in general—is a series of stops and starts when it comes to our understanding of who is part of the American family. We learned the lesson in respect to a particular group in a particular circumstance, but it doesn’t always translate to the next group. We have to learn the lesson all over again.”
Village of Westbury Trustee Beaumont Jefferson, who also serves as Nassau County treasurer, said the topic was near and dear to him as both he and his wife Luisa were naturalized citizens.
Jefferson’s talk was on the economics of immigration. He noted that the economy and the influx of immigrants have always been linked, and the charge that illegal immigrants take jobs away from citizens and don’t pay taxes goes back a long way.
Based on his research, Jefferson argued that “undocumented immigrants contribute more and get less, and are exploited.” He quoted an estimate that they add $13 billion yearly to the Social Security fund and $3 billion to Medicare.
By some estimates, the Social Security fund could be depleted by 2034. Without the contributions of the undocumented, he warned, this depletion could come sooner.
Further, according to the Institute of Taxation and Economic Policy, undocumented immigrants pay approximately $11.8 billion in state and local taxes.
He relayed one economist’s concern that Baby Boomers are retiring in huge numbers and the economy will face a major labor shortage. Immigrants can help make up this difference.
Jefferson asserted that undocumented workers are taking on the jobs that no one wants to do.
He spoke of the August ICE raids on chicken processing plants in Mississippi, where nearly 700 undocumented workers were detained, and asked who would want to do those thankless jobs.
According to several sources, Americans’ increasing appetite for chicken and the attempts by African-Americans—who previously dominated the plant labor ranks—to unionize led plant owners to seek undocumented workers to fill the positions.
“Where will our food supply come from if we don’t have people willing to pick our fruits and vegetables?” Jefferson wondered.
As county treasurer, he was in a position to affirm that the governments are running out of options to raise revenue—thus the recourse to things such as red light cameras and marijuana legalization.
“One of the resources that we have is a workforce that we need to tap into,” Jefferson said, going on to say he was in favor of secure borders, giving the undocumented a path to citizenship, and against the border wall and separating families,
Liotti said that the Constitution Day program had been renamed in honor of Westbury resident Michael Simons, dean of the St. John’s University School of Law. He singled out the alumni of the law school in the audience, such as Mayor Cavallaro and Anthony Mastroianni, and Lucia Ciaravino from his own law firm.
Further, Simons was the John A. Brennan professor of law and Liotti affirmed what a distinction it was to be so named and affiliated with a chair endowed by millions of dollars.
As the judge talked about him, Simons quipped, “Tom, this isn’t coming out of my 15 minutes [allotted speaking time] is it?” to laughter.
The dean noted that he and his wife Karen had raised five kids in Westbury, and they loved the village and it was an honor to be part of the program.
Simons held up the printed program to show the ad on the back for the play, “What the Constitution Means to Me,” and put in a personal plug and urged the audience to see it when it would be shown on television.
“It is a remarkable, funny, moving personal meditation on what the Constitution means to the playwright. And it’s a great reminder that the constitution is not the province of lawyers, judges and politicians,” he stated. “It is the document that binds us together as citizens and it’s important for each of us individually.”
Simons also praised fellow speaker Cavallaro, telling the audience that he had given his talk without the benefit of notes. That also sparked applause.
“How wonderful it is that we come together as a village to celebrate the Constitution, to talk about it, to argue about it, to think about it,” Simons observed.
Simons talked at length about Lincoln, asserting that “he refocused the nation’s moral center on the proposition that all men are created equal.”
He added, “What Lincoln did in the Gettysburg Address was pull the Declaration out of the 1700s and drop it right in the middle of the conversation about the Civil War. By doing that, he laid the groundwork for what would become the fixing of the Constitution in the Thirteenth, Fourteenth and Fifteenth Amendments that eliminated slavery and granted equal rights to all citizens.”
Lincoln also presided over our country’s greatest crisis, “and it’s in the times of crises the executive power and the rule of law come into the most direct conflict,” Simons said after pointing to the copy of the Magna Carta on the wall. “The idea that the king or the executive or the president is bound by the law. And Lincoln was a lawyer and had a deep respect for the rule of law, but he was also the executive in a time of our greatest national crisis.”
He listed of some of the things that Lincoln or his subordinates did during the Civil War that were of questionable legality, such as jailing dissidents, shutting down newspapers and most crucially, suspending the writ of habeas corpus. This last, written in the Constitution, had deep roots in English common law. Its purpose is to give anyone imprisoned a chance to appear before a judge, where the government must show a valid reason for that person’s detention.
“Lincoln did those things very conscious of his obligation to the rule of law and he never sought to abrogate constitutional power to himself that he didn’t have without at least a decent argument that what he was doing was legal,” Simons said. “He was the commander-in-chief of the largest standing army our country has ever had; he could have turned himself into a Caesar. But he didn’t, [due to] his personal restraint, his moral character, his commitment to liberty, his personal dedication to the proposition that all men are created equal. [All are] essential to the survival of the rule of law under our constitution.”
Simons discussed the expansion of presidential power after the terrorist attacks on 9/11. President George W. Bush’s war in Afghanistan “was blessed by Congress, not with a declaration of war, but with a authorization for the use of force.”
The executive branch then authorized state-sanctioned torture (named “enhanced interrogation techniques”) and kidnapping (called “extraordinary rendition”). It suspended the writ of habeas corpus for those detained at Guantanamo Bay in Cuba and established military tribunals.
“The torture and the kidnapping and military detentions were almost certainly illegal,” Simons stated. “If you think about the Civil War and the War on Terror and the responses to the expansion of executive power, there are differences. In the Civil War, the limits were imposed by Lincoln’s restraint. In the War on Terror the limits on executive action were eventually imposed by the courts, not in the immediate aftermath of the crisis…[but when] the perceived danger had waned.”
He went on to say, “The danger today is that there will be a crisis—maybe a real one, maybe a manufactured one, maybe a falsified crisis. And the crisis will be followed by expansion of presidential power and hesitancy of the courts to step in and limit that presidential power in the immediate aftermath. And the danger is that, in that moment, we will not have a president with the moral character to impose that restraint [as Lincoln did].”
The dean concluded, “Under our constitutional system, the president has enormous powers, and that’s necessary to protect the nation in a crisis. But that also means that the rule of law and the ability of courts to impose limits on the president is essential to preserving liberty and protecting democracy. And courts are not enough. Presidential character is essential. Abraham Lincoln had that character. And so it’s wonderfully fitting that in this, our village courtroom, which is already adorned with the great documents of the rule of law…now has those documents watched over by the visage of the Great Emancipator.”
Liotti thanked Lucia Ciaravino and Phyllis Ciaravino, who prepared the video presentations.
Rosemary Ellerby worked on invitations to speakers and attendees, gathered the information for the press releases and the program. She also designed the program cover and found and ordered the bust of Abraham Lincoln.
Thanks were also in order to Rita Geraldi, Anita Hardwardt, Donna Giambruno, Gail Slotnik, Ray Muntz and Mayor Peter I. Cavallaro and the board of trustees.