Immigration and citizenship have been central concerns of US policy makers, dating back to the Founders. Generally speaking, laws governing US immigration and citizenship have fixated on race and ethnicity as factors determining eligibility for entry and citizenship — that is, on who would be included among “We the people.”
Over the next few weeks, Cimarrón examines the truths and fallacies attached to immigration — legal and not — and its impact on the Black community’s past and present from the historical perspective of the ongoing struggle for Black Liberation — Ω
“Illegal,” Says Who?
The simmering controversy over whether/not illegal immigration poses a threat to the African American community is a lively source of debate in Black barbershops and on Black talk-radio. Most Black Americans will readily profess sympathy for the plight of exploited immigrant workers and their families in one breath, while insisting that “they” should not be “rewarded” for breaking “our” laws in the next.
Breaking “our” laws?
I find this notion curiously disturbing — particularly since history has shown that Black Americans were usually ill-served by The Rule of Law. In fact, for most of our 390-odd years in this country, The Law has preserved an arbitrary social order privileging Whites in every way imaginable — most often at the expense not-Whites. Even the handful of laws enacted to affirm the civil and political rights of Black people have been cynically turned against our interests to defend some White entitlement claim. [More on this in future postings.]
In today’s post-slavery, post-civil rights and (according to some) “post-racial” society, the notion that The Rule Law will ultimately provide justice and equity for all who Believe-and-Obey turns history — as we’ve lived it — on its head.
Fortunately, our kids aren’t so easily fooled.
My wife, Berta, is a fifth grade public school teacher in Boston. Her students are Latino immigrants — or the children of recent immigrants — from the Caribbean, Mexico, and Central and South America. They are designated ELLs (English-language learners) or LEPs (Limited-English Proficient) and struggle with the demands of a society that sees their home language and culture as deficits to overcome.
Each year, as part of their American history unit, Room 204 treks Boston’s Black Heritage Trail — 14 sites of historic significance for the city’s Black community. This particular class trip roughly coincided with media fallout from the March 2007 raid by ICE agents on the Michael Bianco factory in New Bedford.
The seventh stop on the Trail is the John Coburn House at 2 Phillips Street on Beacon Hill. Coburn was a freeborn Black man, and a prominent abolitionist active on the Boston Vigilance Committee, a multiracial group created to block enforcement of federal sanctions against escaped slaves. In 1851, Coburn was among those arrested, tried, and eventually acquitted for rescuing a fugitive slave called “Shadrach.”
The Fugitive Slave Act of 1850, made a crime of providing aid, comfort, shelter, or employment to any person adjudged a “fugitive from service or labor” (a legal euphemism for “escaped slave”). Fugitive slaves were routinely denied a trial by jury and barred from testifying in their own defense. The Act also provided for special commissioners holding concurrent jurisdiction with the U.S. district courts. Then, as now, the legally-sanctioned kidnapping and transportation of alleged fugitives was called “rendition.”
At this point, the Park Service Ranger leading the tour paused and asked if anyone had questions about Coburn or fugitive slave laws.
“They’re still doing that today,” piped Oris, a sharp-witted 11-year-old. “I mean, like, in New Bedford,” he clarified.
The dramatic Bianco factory raid netted some 361 workers — mostly women — suspected of being “illegals.” Within 48-hours, ICE, with ruthless efficiency, had processed, interrogated, and dispatched some 200 workers from an abandoned military base in Massachusetts to detention centers in south Texas. Leaving at least 200 frightened children without a parental caretaker sparked a firestorm of protest among child advocates and civil libertarians. ICE caved to the public outcry and grudgingly released a number of female detainees.
Oris saw startling parallels in the perils shared by fugitives slaves in 1851, and undocumented Latino families over 150 years later. Drawing from the story of two American-born Black men from Boston’s past, he found lessons that were still relevant to a child of Dominican immigrants living in Boston’s present.
On May 13, last — just over 14 months after the notorious New Bedford raid — ICE made new headlines for the largest immigration raid in US history, a meatpacking plant in Pottsville, Iowa. Pouring out of Blackhawk helicopters, the ICE strikeforce came in “hot,” dressed in black riot gear and heavily armed. This time, 361 workers from Guatemala, Mexico, Israel, and the Ukraine were captured and held without bail for suspicion of “aggravated identity theft, fraudulent use of a Social Security number, and other offenses.” The “presumption of innocence” — vaunted cornerstone of American juris prudence — was the first casualty to ICE’s “fast-tracking” tactics, as detainees hurried through perfunctory criminal arraignments in groups of ten shackled at the wrists, waist, and ankles.
As I followed this latest coverage, I remembered Oris’ insightful comment. How, I mused, would the contemporary immigration situation look through the lens of Black History? And what might this perspective bring to the broader, and still unfinished, struggle for racial justice?
I decided to do a little research on the matter. And with the election of a black man and first-generation immigrant to the presidency, it seemed appropriate to share what I’ve learned about the twisted path and the costs of becoming an “American.”
Justice, the Rule of Law, and people of color
The Rule of Law structures everyday relations between members of society: it defines rights and privileges, draws distinctions between classes, and settles disputes over property and truth-claims. In the US, the Rule of Law maintained an absolute race-based dictatorship lasting some 250 years, and created an artificial White political majority benefiting rigid racial segregation and subordination, seizure of Indian lands, and selective immigration. As legal scholar, Cheryl Harris noted:
The racialization of identity and the racial subordination of Blacks and Native Americans provided the ideological basis for slavery and conquest…Although the systems of oppression of Blacks and Native Americans differed…undergirding both was a racialized conception of property implemented by force of law (1993:1715).
Under the Rule of Law, abolitionist leader, Frederick Douglass, was a “fugitive,” a Black man living illegally in Massachusetts — from 1838, when he escaped bondage in Baltimore, until the 14th amendment finally extended citizenship to anyone born or naturalized in the US. For most of that time, some 30 years, Douglass risked being dragged off the street (or from his bed), shackled and imprisoned by local magistrates, and forcibly returned to his former condition of servitude in Maryland. All perfectly legal.
The draconian severity of these measures invariably led to frequent abuses and many false arrests; cases of mistaken identity were commonplace. In 1841, Solomon Northup, a freeborn Black man and property holder from upstate New York, was kidnapped and bundled onto a New Orleans-bound ship, sold on the block, and held in bondage for the next 12 years. His eventual release engendered no apology, no offer of compensation or damages for his wrongful imprisonment, and no punishment for his captors. And despite being a freeman-of-property, Northup was denied the right to confront his captors in court.
The US Civil War and Reconstruction formally ended the 260-year regime of slave-based capitalism in the south. However, the defeated states of the former Confederacy quickly found ways to restore the essential social and economic relations of slavery in all but name. By the end of 1865, eight southern states had enacted “Black Codes” imposing race-based constraints on political rights exercised by freedmen (e.g., voting, sitting on a jury, testifying in court, carrying firearms). Some states limited property ownership, while others excluded Blacks from certain businesses and skilled trades.
The Black Codes enforced racially-restrictive labor contracts limiting the job mobility of Black workers, and prosecuting unemployment as a felony (i.e., “idleness” or “vagrancy”) circumvented the 13th amendment’s prohibition against “involuntary servitude.” New mechanisms for managing the emerging system of penal slavery (e.g., “chain gangs,” prison farms, and convict-leasing) were mandated in state legislatures dominated by former slaveholders. Whereas chattel slavery had created the wealth of the plantation capitalists, state-coerced Black labor was vital to rebuilding the south’s industrial and commercial infrastructure in the post-Reconstruction era. The only discernable difference being the slim distinction between unfree labor leased from the state, and unfree labor that was privately owned.
Contemporary sweatshop and stoop-labor enterprises borrow heavily from the repressive and exploitive practices ushered in by the Black Codes and refined under Jim Crow. Like the Black convict laborers of yesterday, the precarious legal and social status of today’s undocumented workers enables employers to depress wages across entire industries, undermine occupational safety and health provisions, limit job-mobility, and squash workplace grievances through physical threat and legal intimidation.
Much like the fugitive slaves of old, ICE detainees apparently have “no rights which the white man was bound to respect.” ICE needs neither probable cause, nor warrants to detain or interrogate individuals, or to seize evidence. Ice is further empowered to conduct its own closed-door “administrative” hearings; and, finally, indigent detainees have no right to due process, legal counsel, or even adequate medical care. In fact, a reasonable person might conclude that ICE’s relentless pursuit and prosecution of "criminal aliens" has less to do with immigration enforcement than grabbing headlines with impressive body counts.
What else does history reveal about the Rule of Law and its treatment of not-White people?
Law, immigration, and the “Ownership Society”
Long before G.W. Bush elevated it to a soundbite, the US was an “ownership society.” At its core, the concept of owning involves the exclusive right to the use, control, and disposition of property. And from the earliest days of English North America, the pursuit of property has fueled wars of conquest subjugating the Indians and appropriating traditional lands, and the system of slavery, which appropriated the labor of kidnapped Africans to cultivate the stolen land.
Irony and contradiction has always been a singular feature of this nation’s historical record. For example, in July 1619, the Virginia House of Burgesses became the first representative legislature in the so-called New World. Within weeks, however, the future course of democratic governance was shaped when the colony bartered food and water for 20 captive Africans — introducing a new wrinkle to existing class hierarchies. Gradually, beginning with Massachusetts in 1641, the colonies enacted laws defining imported Africans as property held in perpetual bondage. By contrast, White indentured servants were exempted from the dirtiest and most dangerous jobs, even granted a form of limited citizenship and the satisfaction of not being Black — a psycho-emotional consolation prize for their relative impoverishment.
Flash forward a few generations to John Adams, signer of the Declaration of Independence and second US president. Adams was confident that the newly-created United States would be “a nation of laws, not of men” — meaning that the coercive power of the state would never be subject to the whims of a despot. However, the Framers soon backed away from the noble promises of the Declaration and, instead of defending the “inalienable rights” of all, the US Constitution (1787) pledged to preserve and uphold the property rights — in land, livestock, and slaves — of the few. Clearly, Adams had failed to appreciate that a system of laws formulated by an elite minority comprised of propertied White men would have little interest in justice for the vast majority of those without property — let alone for the millions held as property.
In truth, our hallowed Bill of Rights was mostly an afterthought, appended to the Constitution nearly five years after its ratification. Accordingly, the first two acts of the 1790 Congress — which authorized a national census (applying the “three-fifths rule,” Article 1, Section 2:3) and limited US immigration and naturalization to “white persons” (a legal requirement until 1952) — established the nation’s identity as a white-Christian state, and consigned Native Americans to the curious status of “domestic foreigners.” Many who claimed to oppose slavery — including presidents Thomas Jefferson and Abraham Lincoln — assumed that the institution would eventually pass away, and that freed Blacks would willingly return to Africa. So while the US might indeed become a nation of immigrants, the Founders assumed they would be White and could prove it in court. Consequently, from the beginning, determinations of who could lawfully “become an American” was intimately bound up with racial profiling
Five years after Solomon Northup’s release, the US Supreme Court attempted to settle the matter of the Black man’s place in US society in Dred Scott v. Sandford, declaring that: “[U]pon the facts stated… “Dred Scott was not a citizen of Missouri within the meaning of the constitution of the United States, and not entitled as such to sue in its courts.” A decade, and one bloody civil war later, slavery was no more and Black men would soon gain the franchise, the essential marker of citizenship. Yet, it would still take a full century before the federal government would actually enforce the provisions of the 14th and 15th amendments — and 140 years before a Black man would occupy the Oval Office.
Lastly, in Plessy v. Ferguson, the Supreme Court not only endorsed state laws mandating racial segregation, drawing a dubious distinction between “social” and “political” rights, it recognized the quality of “whiteness” as a form of personal property — making interracial intimacy and racial “passing” crimes against property.
The Plessy decision was situated in a period characterized by growing international — some might say, “imperialist” — aspirations. In this context, “whiteness” and “being an American” were conflated and defending White Supremacy became an implicit assumption guiding the pursuit of US national security and foreign policy interests to this day.
Of course, whenever the Rule of Law proved insufficient — or overly cumbersome — responsibility for defending White Supremacy was readily assumed by armed mobs, or paramilitary terrorist groups like the Ku Klux Klan or today’s anti-immigrant Minute Men.
The Rule of Law vs. Simple Justice, who decides?
In April 1963, a full century after Emancipation, Dr. Martin Luther King, Jr. penned his famous “Letter” from a cramped jail cell in Birmingham. King challenged critics of non-violent direct action, asserting “that there were two types of laws: just and unjust.” An unjust law was: (1) a law imposed by “a numerical or power majority group” on a minority group, that is not binding on the majority; (2) a law that purposely denied the minority any voice in its making; and, lastly, (3) a law conceived and enforced in a climate of ignorance, deceitful self-interest, and complacency.
Conversely, a just law reflects both the popular will and respect for minorities. Just laws are binding on all society members, mindful of disparate outcomes and unintended consequences, and only enacted after broad and open debate. Dr. King’s rule-of-thumb: unjust laws degrade and oppress; just laws uplift and liberate.
Quoting St. Augustine, Dr. King insisted that, “an unjust law is no law at all,” finally concluding that, “one has not only a legal but a moral right to disobey unjust laws.”
Some people maintain that disobeying any law, no matter how unfair or misguided, merely encourages the indiscriminant breaking of all laws, leading ultimately to chaos and a general social decline — the Slippery Slope Argument. This time-worn line of reasoning is further buttressed by the Costly Consequences Argument, which posits that widespread lawlessness imposes an unfair burden, or social cost, on the entire community.
The social ferment unleashed by the civil rights struggle not only hastened the final demise of Jim Crow, but the dismantling of most legal barriers to non-European immigration.
And, so what? (¿Y Qué?)
Since 9/11, irrational fear over US border security barely mask a dramatic escalation of the long-running “culture wars” — the right-wing crusade targeting those criminal, morally deviant, and mostly non-white, native- and foreign-born “Others” threatening America’s Anglo-centric, Christian Ideal merely by being here. The Minute Men grabbed national headlines in 2005 for its outspoken advocacy of strict border-control measures, including fielding a mostly-White cadre of armed volunteers patrolling southern border areas.
In 2003, the Bush administration overhauled the Immigration and Naturalization Service (INS) — “La Migra” — creating Immigration and Customs Enforcement (ICE) under the umbrella of the Department for Homeland Security (DHS). And just as the operational logic of the War on Drugs criminalized young Black and Latino men (for being young, poor, unskilled, and not white), it’s hardly surprising that the centerpiece of the domestic arm on the equally dubious “War on Terror” is a beefed up immigration policy “targeting fugitive aliens” for “aggressive litigation and prosecution.”
ICE is known for its pre-dawn, “no-knock” home invasions whereby the terrified occupants — often legal immigrants and foreign-born US citizens innocent of wrong-doing — are held at gunpoint and verbally abused while their possessions are ransacked. Recently, ICE scooped up an L.A.-born 29-year-old, described by relatives as “mildly developmentally disabled,” and deported him to Mexico for failing to provide proof of US citizenship. After three months wandering along the border, the young man was finally found and returned to his family. In response to widespread criticism over this incident, an ICE spokesperson flatly denied responsibility for verifying the actual citizenship status of detainees slated for rendition.
Many critics of ICE’s enforcement-only policy are suggesting that the raid on Iowa-based Agriprocessors was not quite kosher: that, in fact, ICE might be complicit in the company’s unlawful efforts to break a union organizing drive at the plant. Whether this allegation is true and reflective of a pattern of official abuse, or not, there is mounting evidence that ICE blatantly violated its detainees’ rights to counsel and due process. And the word from the top is that Pottsville is being studied as a model for future ICE workplace actions.
The incoming administration will be under a national microscope throughout its first 100 days. Nevertheless, we suspect that President-elect Obama is keenly aware that Latinos provided the margin of victory in his election — withdrawing support from the GOP following McCain’s dramatic reversal on the question of immigrant rights. Obama’s obvious political savvy and the urgency to address the rising tide of anti-immigrant sentiment — in particular, the recent outburst of anti-Latino violence — should push resolution of this thorny question to the top of his policy agenda.
Let’s “hope” that Mr. Obama’s vision of “change” is guided by Dr. King’s timeless idea that, “injustice anywhere is a threat to justice everywhere.”
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