Immigration, civil rights & the evolution of the people

Daedalus

Volumn 142, Issue 3, 2013, Pages 228-241

  Rodríguez, Cristina M ^a  

^a YALE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 84879973670     PISSN: 00115266     EISSN: 15486192     Source Type: Journal    
DOI: 10.1162/DAED_a_00229     Document Type: Article

References (78)

1. Cristina M. Rodríguez, "Immigration and the Civil Rights Agenda," Stanford Journal of Civil Rights and Civil Liberties 6 (2010): 125-127.
2. My aim here is largely descriptive-to provide a socio-legal account of how non-citizens become members of "the people." I leave for another day whether the process of incorporation should be governed by certain moral imperatives, such that it might be illegitimate for existing members of the polity to exclude non-citizens who seek incorporation. For an influential defense of the polity's right to exclude.
3. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), 34-42.
4. Hiroshi Motomura, Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States (Oxford: Oxford University Press, 2006), 80-95.
5. Peter Spiro, Beyond Citizenship: American Identity After Globalization (Oxford: Oxford University Press, 2007), 81-108.
6. Cristina M. Rodríguez and Ruth Rubio-Marín, "The Constitutional Status of Irregular Migrants: Testing the Boundaries of Human Rights Protection in Spain and the United States," in Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States, ed. Marie Dembour and Tobias Kelley (New York: Routledge, 2011), 74, 81-84, 92-98.
7. Daniel Kanstroom, Deportation Nation: Outsiders in American History (Cambridge, Mass.: Harvard University Press, 2007), 3-5.
8. For an account of how immigration enforcement, particularly at the state and local levels, raises civil rights concerns, albeit different in kind from Jim Crow segregation.
9. Kevin R. Johnson, "Immigration and Civil Rights: State and Local Efforts to Regulate Immigration," Georgia Law Review 46 (2012): 629-638.
10. Johnson asks, "[H]ow can racial pro1/2ling in border enforcement, massive detentions of non-citizens, and record levels of deportations not implicate civil rights concerns" (611).
11. Kevin R. Johnson, "A Case Study of Color-Blindness: The Racially Disparate Impacts of Arizona's S.B. 1070 and the Failure of Comprehensive Immigration Reform," UC Irvine Law Review 2 (1) (2012): 352-356.
12. Rodríguez and Rubio-Marín, "The Constitutional Status of Irregular Migrants," in Are Human Rights for Migrants? ed. Dembour and Kelley, 74.
13. For an account of these rights as "sovereignty" rights, see, 83.
14. For a discussion of this point.
15. Spiro, Beyond Citizenship, 81-108.
16. Mathews v. Diaz, 426 U.S. 67 (1976).
17. Gabriel J. Chin, "The Civil Rights Revolution Comes to Immigration Law: A New Look at the Immigration and Nationality Act of 1965," North Carolina Law Review 75 (1996): 279-297.
18. In the years leading up to the 1965 reforms, "cumulative ad hoc measures," often driven by foreign policy, led to the gradual erasure of racial exclusion from the code.
19. Christian Joppke, Selecting by Origin: Ethnic Migration in the Liberal State (Cambridge, Mass.: Harvard University Press, 2005), 51-53.
20. Congress, for example, eliminated the Chinese exclusion laws in 1943, and presidents used their executive authority to admit refugees from the otherwise disfavored region of Eastern Europe.
21. Pursuant to this scheme, which Congress added to the Immigration and Nationality Act in 1952 to replace the "Asiatic Barred Zone," two thousand visas were allocated annually for "all nonwhite immigrants born within an Asian-Pacific Triangle stretching from India to Japan to the Pacific Islands."
22. Daniel J. Tichenor, Dividing Lines: The Politics of Immigration Control in America (Princeton, N.J.: Princeton University Press, 2002), 191.
23. Joppke, Selecting by Origin, 55.
24. Tichenor, Dividing Lines, 176-181. Scholars have identified this dynamic in the passage of civil rights legislation generally. For influential accounts.
25. John Skrentny, "The Effect of the Cold War on African-American Civil Rights," Theory and Society 27 (1998): 237-285.
26. Mary Dudziak, "Desegregation as a Cold War Imperative," Stanford Law Review 41 (1988): 61-120.
27. Joppke, Selecting by Origin, 56.
28. Quoted in., 261 n.66.
29. Quoted in Tichenor, Dividing Lines, 215.
30. Chin, "The Civil Rights Revolution Comes to Immigration Law," 300-302.
31. In his work on the subject, Jack Chin challenges the view that the 1965 Act was designed to expand white Southern and Eastern European immigration.
32. Chin, "The Civil Rights Revolution Comes to Immigration Law," 275.
33. He argues that "Congress meant exactly what it said-that race was no longer to be a factor in America's immigration law" (278).
34. He points to evidence throughout the legislative record suggesting that lawmakers were aware that they might transform the country's demography by enabling the admission of large numbers of Asian immigrants, in addition to Europeans, underscoring the dramatic egalitarian nature of the reforms (303-321).
35. The adoption of this rule in 1868 undid the most discredited of the Supreme Court's efforts to define "the people," in Dred Scott v. Sandford. The Court concluded that blacks were "not included, and were not intended to be included," and that, at the time of the Constitution's formation, they were thought to be a "subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to give them".
36. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
37. U.S. 259, 265 (1990). In his concurring opinion, Justice Kennedy rejects this construct and writes: "Given the history of our Nation's concern over warrantless and unreasonable searches, explicit recognition of 'the right of the people' to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it" (at 276).
38. Motomura, Americans in Waiting, 11-12.
39. United States v. Huitron-Guizar, 678 F. 3d 1164, 1166, 1168 (10th Cir. 2012).
40. Huitron-Guizar, at 1169.
41. United States v. Portillo-Munoz, 643 F.3d 437, 442-443, 446 (5th Cir. 2011) (Dennis, J., concurring in part and dissenting in part). In elaborating this view, the dissenter tacks back and forth between an effort to define the people as a term of art and the more fundamental concept of the person reflected in the due process precedents, thus demonstrating how robust defenses of the rights of personhood inevitably inform articulation of the collective people (at 445-446).
42. To this dissenter, the rights to bear arms, to be free from unwarranted searches, and to peaceably assemble, which all belong to "the people," represent mechanisms of self-defense against the state that all persons who make their home in the United States ought to be considered to possess (at 444).
43. Linda Bosniak, for example, expresses her sympathy for an "ethical territoriality" according to which membership is treated as "a matter of social fact rather than as a legal formality".
44. Linda Bosniak, "Being Here: Ethical Territoriality and the Rights of Immigrants," Theoretical Inquiries in Law 8 (2) (2007): 392.
45. Huitron-Guizar, at 1170. Both the Tenth and Fifth Circuits found it permissible for the government to prevent unauthorized aliens from possessing firearms, and in the course of so finding described unauthorized immigrants as having unknowable identities-as persons "who. are likely to maintain no permanent address in this country, elude detection through an assumed identity, and already living outside the law, resort to illegal activities to maintain a livelihood".
46. Portillo-Munoz, at 441.
47. Catherine Dauvergne writes: "Globalization brings a range of pressures to national borders, and they are increasingly permeable to flows of money and ideas. Although it is evident that prosperous states would like to assert complete control over those who cross their borders, it is equally evident that this is not possible. Or, at least, that states (especially democratic capitalist ones) are not willing to undertake the trade-offs (mostly economic) that would be necessary to come anywhere close to achieving this goal".
48. Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law (Cambridge: Cambridge University Press, 2008), 17.
49. Linda Bosniak, "Exclusion and Membership: The Dual Identity of the Undocumented Worker Under United States Law," Wisconsin Law Review (1988): 956.
50. U.S. 202 (1982).
51. Justice Brennan invoked justice as a basis for his conclusion, noting that "legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice. [I]mposing disabilities on the child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing".
52. Plyler, at 220 (quotations omitted).
53. As Daniel Tichenor has documented, in implementing the Immigration Reform Control Act, the Reagan administration "set out to restrict the number of amnesty grants that were issued" under the statute.
54. Tichenor, Dividing Lines, 263-265.
55. Cristina M. Rodríguez, "The Significance of the Local in Immigration Regulation," Michigan Law Review 106 (4) (2008).
56. The Supreme Court's recent intervention into this debate through its decision to strike down most, but not all, of Arizona's S.B. 1070 will limit the tools with which states and localities may respond to anti-incorporationist sentiments in particular, but it remains to be seen how the Court's decision will affect the broader debate over whether and how to incorporate unauthorized immigrants. By limiting the states' capacity for action, the decision might accelerate the debate at the federal level, though the same opposition to incorporation reflected in Arizona's enforcement laws may simply entrench the stalemate in Congress.
57. United States v. Arizona, 567 U.S. _ (2012).
58. As Joseph Carens has put it, "Human beings who have been raised in a society become members of that society: not recognizing their social membership is cruel and unjust".
59. Joseph Carens, "The Case for Amnesty," Boston Review (May/June 2009), http://bostonreview.net/BR34.3/carens.php.
60. This imperative feels urgent, but its realization demands patience. As the history of the 1986 reforms highlights, a legislative breakthrough can take years of agitation; though the 1980s began with an American public "convinced that the country had lost control of its borders" and willing to "embrace. harsh crackdowns on illegal immigration," by the middle of the decade, previously unthinkable legislative victories had been won. Tichenor, Dividing Lines, 242.
61. Peter H. Schuck, Citizens, Strangers, and In-Betweens: Essays on Immigration and Citizenship (Boulder, Colo.: Westview Press, 1998), 93-96.
62. For a detailed account of the forces responsible for the 1986 reforms.
63. Tichenor, Dividing Lines, 261-262.
64. The willingness of unauthorized youth to publicly state their claims to membership provides something of a model, as their actions helped create the political and moral pressure that prompted the Obama administration to announce its plan for deferred action for childhood arrivals-a plan that has allowed those who meet certain eligibility criteria to be considered for a form of temporary relief from removal and authorization to work. See the memorandum from Janet Napolitano, Secretary of Homeland Security, to dhs Officials, "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children," June 15, 2012, http://www.dhs.gov/ynews/releases/20120612-napolitano-announces -deferred-action-process-for-young-people.shtm. Note
65. Joseph Carens has argued that "[i]rregular migrants should be. allowed to remain with legal status as residents-if they have been settled for a long time. Some circumstances- arriving as children or marrying citizens or permanent residents-may accelerate or strengthen their moral claims to stay".
66. Carens, "The Case for Amnesty." Rogers Smith has called for legalization of those who have been present at least ten years and who do not possess a criminal record, on the ground that such a conservative proposal would stand a chance of "breaking the destructive gridlock on immigration".
67. Rogers M. Smith, "A More Conservative Proposal has a Better Chance of Succeeding," Boston Review (May/June 2009), http://bostonreview.net/BR34.3/smith.php.
68. Linda Bosniak has developed an argument she calls "ethical territoriality," or the "conviction that rights and recognition should extend to all persons who are territorially present within the geographical space of a national state by virtue of that presence".
69. Bosniak, "Being Here," 390-391.
70. As Catherine Dauvergne has emphasized, "The minimal content of the term 'illegal' obscures the identities of those to whom it is affixed".
71. Dauvergne, Making People Illegal, 16.
72. Dauvergne notes the increasing shift in perception toward illegality as criminal in a "mala in se sense".
73. For an account of how U.S. immigration policy since 1986 has contributed directly to the rise of illegal immigration.
74. Douglas S. Massey, Jorge Durand, and Nolan J. Malone, Beyond Smoke and Mirrors: Mexican Immigration in an Era of Economic Integration (New York: Russell Sage Foundation, 2002), 73-104.
75. These scholars also have identi1/2ed the reforms of 1965 as a culprit in the creation of large-scale unauthorized immigration. These and other legal reforms meant that between 1968 and 1980, the number of visas available to Mexicans "dropped from an unlimited supply" to twenty thousand per year; coupled with demographic and economic factors, the changes in the law meant that "only one outcome was possible: an explosion of undocumented migration" (43-44).
76. In United States v. Arizona, the Supreme Court described additional concerns, relying on reports presenting descriptive statistics, as well as anecdotal evidence: "Accounts in the record suggest there is an 'epidemic of crime, safety risks, serious property damage, and environmental problems' associated with the influx of illegal migration across private land near the Mexican border".
77. Carol Swain has emphasized consideration of the "impact of illegal immigration on the most vulnerable members of American society: native-born Americans and legal immigrants with low skills and low levels of education"; and has contended that moral claims of these individuals "trump" those of the "unknown millions who are in the country illegally."
78. Carol M. Swain, "Apply Compassion Offered Illegal Immigrants to the Most Vulnerable Citizens," Boston Review (May/June 2009), http://bostonreview.net/BR34.3/swain.php.