human rights

     The United States of America needs more than a wall. The proposed border fence, whose environmental impact will be studied this month in Brownsville, TX, is mere “tokenism,” and negative tokenism at that. Admittedly, the wall will only slow illegal immigration, not end it, so it is little more than a token of politician’s desire for immigration reform without any direct action. Martin Luther King, Jr., writes that tokenism is, “an end in itself. It’s purpose is not to begin a process, but instead to end the process of protest and pressure.” All dialogue has been silenced regarding whether or not we actually want to keep illegal immigrants out of this country, and our politicians have been mute about the 12 million extralegal immigrants already working and living productive lives in our country.



     Our country of immigrants needs more than a wall, and it certainly deserves more than useless discourse about mass deportation. Deportation is a costly, ineffective, and dehumanizing way to provide “token” immigration reform. Currently, we have thousands of adults and children awaiting deportation in our centers around the U.S. The mass deportation discussed in the Senate and the House would cost almost the entire annual budget of Homeland Security, some $40 billion dollars annually over a span of five years, and all for something which has unclear warrant and efficacy.



     Deportation, then, is a costly and ineffective form of dealing with extralegal immigrants. Most tragic, though, is the dehumanization deportation inevitably brings. Illegal immigrants can be deported at any time, with scant means of legal recourse. Families are routinely separated,the length of internment often indefinite, and the prosecution subtle and secretive. It must be the aim of any nonviolent movement for immigrant rights, then, to target deportation and bring these individuals out of the shadows. We must imbue immigrants, both legal and extralegal, with a sense of “somebodiness,” the same self-realization Dr. King discussed was integral to the African-American civil rights movement.



     Approximately 36 million immigrants live within our nation’s assumed borders, divided nearly equally between naturalized citizens, legal permanent residents, and undocumented immigrants. Independently of each other, each of these sub-populations is a hefty constituency in these United States and can directly influence immigrant policy through determined nonviolence. Taken together, though, this enormous population which is constantly growing could and must shape our nation’s immigration policies. Immigrants on both side of the current law must join together in claiming their somebodiness as well as their human rights. Both the woman who has passed her Visa clearance and the teenage man who has been denied must join together in affirming that our current immigration quota system is broken and retrogressive. Both the high-school student with birthright citizenship and his father unable to pass his citizenship test must blend their voices in protest of a system which would keep families separate. The African, the European, the Asian, the Mexican – all immigrants past and present must unite in a nonviolent resistance to this stagnation of American immigration reform. This is a problem which must be addressed, which must be dealt with morally and politically and socially. Together we must demand fair immigration policies and accessible means to citizenship for all.

website metrics


From this week’s reading assignment, I have just two points and a question. First, I will reexamine how King determines what makes disobedience civil. Then I will make an argument about segregation and tokenism as it regards immigration. The question I’ll leave you with is about whether we are in a time of sowing or reaping.

In contrasting the differences between civil- and uncivil-disobedience, Dr. King says:

“In disobeying such unjust laws, the students do so peacefully, openly and nonviolently. Most important, they willingly accept the penalty, whatever it is, for in this way the public comes to reexamine the law in question and will thus decide whether it uplifts or degrades man.

“This distinguishes their position on civil disobedience from the “uncivil disobedience” of the segregationist. In the face of laws they consider unjust, the racists seek to defy, evade and circumvent the law, and they are unwilling to accept the penalty. The end result of their defiance is anarchy and disrespect for the law. The students, on the other hand, believe that he who openly disobeys a law, a law conscience tells him is unjust, and then willingly accepts the penalty, gives evidence thereby that he so respects the law that he belongs in jail until it is changed. Their appeal is to the conscience.”

King lists the qualities of civil disobedience as: peaceful, open, nonviolent, and accepting of penalty. King lists the qualities of uncivil disobedience as: defiant, evasive, and circumventing of the law; and unaccepting of penalty. King lists the outcomes of civil disobedience as: public reexamination of the law, and increased respect for law. King lists the outcome of uncivil disobedience as: anarchy, and disrespect for law.


King’s lifelong fight was against a system that prevented all people from freely associating with those of a different race in all aspects of life. In the United States of America from (roughly) 1896 to 1965, that system was called segregation. In South Africa until the mid 1990s, that same system was called apartheid. In the United States of America, that exact system is called restricted immigration. I cannot freely associate with those who I choose to if the government tells them they do not have a legal right to be here. I think we should come up with a name for restricted migration that makes this reality clear. Perhaps the term “national segregation” could work. I’m not sure, what do you think?


Understanding restricted immigration as segregation makes clear that a system which gives a few people permission to enter the United States, while denying hundreds of thousands of others, is a system of tokenism. Tokenism is also giving amnesty to the undocumented immigrants currently living in the country while blocking the way for others. Ours, instead, “is total commitment to [the] goal of equality and dignity,” and not just for those currently here. This is why Reagan’s amnesty plan failed.

Abraham Lincoln and the Reconstruction Congress well understood this principle. Tokenism for them would have been emancipating a generation of slaves while maintaining the institutions of slavery and the slave trade. Our situation is no difference. We are not fighting for the Mexican; we are fighting for the Chinese, the Japanese, the Indian, the Irish, the Italian, the Mexican, and whatever ethnic group will come next. To paraphrase Dr. King, God is not interested in the freedom of movement of black men and brown men, but in the freedom of movement of all men. Our goal must be unrestricted migration, not just because it is necessary for democracy, but because it is morally compelling.


My question comes from this line. “The current breakthroughs have come about partly as a result of the patient legal, civil and social ground clearing of the previous decades.” While there has been social ground-clearing, there hasn’t been any legal ground clearing (not for 125 years at least). My questions are these. Would civil disobedience be premature right now? Does the legal have to preceed the social? Dr. King’s movement came after the major legal battle to end segregation (Brown v. Board). Is something similar required before civil disobedience will be effective and useful, especially given that disobedient immigrants are not jailed, they are deported? Civil disobedience is designed to change unjust laws. Dr. King used it to change unjust local laws that were out of compliance with newly implemented federal standards. Immigration law is an unjust federal law. Do we need to advance international law before we use civil disobedience to challenge the more local, federal laws?

website metrics

In 2006, the Secure Fences Act was passed in both Congress and the Senate. The funds have since been approved, and the entire project is merely pending a few token studies concerning its impact on the environment, its feasibility, and its pecuniary implications. How did we arrive at such a place in American history?

The whole nation has been crying out for immigration reform since well before the 1960s. JFK heard their voices, but he was killed before he could radically change the quota system. Since then, restrictive immigration laws have been tightened and roughly enforced on our nations’ southernmost border and in our reluctance to accept asylum-seekers (refugees in other countries).

Our borders are places of violent clashes, deportation, and imposing fences.

Our legal immigrants are forced to become pochos, forced to forget their homeland in an effort to distance themselves from extralegal citizens the government and the media has vilified and quietly deported.

“Illegal” immigrants live in terror, working low-wage jobs, foregoing medical care, and paying extortionate rates for normal amenities in an effort to remain in a country which disrespects them and the country they left behind.

The entire nation cries out for immigration reform. Even the politicians could hear it on Capitol Hill. They could hear it, but amidst the din of partisan politics and the difficulty of making tough decisions on true immigration reform, both the Democrats and the Republicans opted for an easy way out, a symbol of border security and “immigration reform.” The wall was passed overwhelmingly by most major politicians, including my own Texas senators Cornyn and Hutchison, as well as mainstream presidential candidates such as Obama and Clinton.

And so here we are today. Brownsville, Texas, will be studied later on this month so that construction of the wall can begin in 2008. The symbol of a wall, laughable and medieval and impossible to believe, looks as if it will be coming next year unless the citizenry of the United States can raise its voice once more, refuse to be distracted by “token” gestures of immigration reform, and demand a real solution instead of this expensive “tokenism.”

Victor Hugo famously said, “There is no greater power on earth than an idea whose time has come.” The idea of immigration has been a long time coming, and it must be nonviolently urged to the forefront of American thinking.

The clearest fight for true immigration reform and against pseudo-solutions is the proposed border wall on our southern border. As Martin Luther King, Jr., outlines in “The Time for Freedom has Come,” we must do this by three key steps. First, any efforts to halt the construction of the border wall must expose the moral defenses of pro-fence politicians. The moral element never figured into the border wall monologue, but if this fence is to be stopped, a dialogue must begin which addresses the moral element of such a symbol of separation. This blog site is a beginning, but it must be preached from the pulpit and headlined in our newspapers. It must be sung over webcasts and it must be written in informed letters to our politicians. The moral element is clear – a Mexican border barrier signifies mistrust, racism, and nationalism – but the message has not been clearly voiced nor loudly proclaimed.

The second keystone concept of nonviolent resistance for King is that it must weaken the morale of its opposition. If well organized, a national boycott against key companies or an illegal immigrant strike could certainly weaken the morale of an opposition which secretly welcomes illegal contribution to our national GDP but publicly denounces extralegal workers. This contradiction has existed for decades, and its demise must be one of the main aims of any nonviolent movement.

Lastly, a nonviolent call for true immigration reform and no border wall must work on our nation’s conscience. So far, deportation detention centers like those at Raymondville, Texas, and the processing centers like the one at Port Isabel, Texas, have worked largely under the radar of human rights groups and national publications. It is difficult to prick the nation’s conscience without media coverage. We must no longer wait for the Associated Press to run a feature article on a single immigrant in a single detention center. These violations of basic human rights must be forced into the public eye via nonviolent demonstrations. Illegal immigrants should no longer suffer in these places alone and unnoticed. The Bible beckons us to be a “voice for the voiceless,” and nonviolent demonstrations should aim to translate these muffled calls for help from Spanish or Sudanese to an English which will awaken the once-great collective conscience of our country which has been lulled to sleep these 45 years.

BY working on the American conscience (and by this I mean all the Americas), by weakening the morale of supporters of immigration tokenism, and by exposing the moral defenses of those who would call for a Mexican border wall, nonviolent resistance will not only block the construction of the wall but will fluently call for reconsideration and reconstruction of our nation’s outdated, provincial philosophy on immigration. But we must begin by countering the wall; to ignore this physical representation of bad immigration policy would make us akin to the priest in the parable of the Good Samaritan, plotting a sermon on brotherly love as he strides past the bleeding wayfarer. The time for this idea has come; the time is now.
website metrics

At the end of perhaps the greatest sermon in history, Jesus of Nazareth said,

Therefore whosoever heareth these sayings of mine, and doeth them, I will liken him unto a wise man, which built his house upon a rock: And the rain descended, and the floods came, and the winds blew, and beat upon that house; and it fell not: for it was founded upon a rock. And every one that heareth these sayings of mine, and doeth them not, shall be likened unto a foolish man, which built his house upon the sand: And the rain descended, and the floods came, and the winds blew, and beat upon that house; and it fell: and great was the fall of it.

The difference, Jesus says, is in the doing. 2000 years later, Dr. Martin Luther King Jr. said,

America has been something of a divided personality, tragically divided against herself. On the one hand we have proudly professed the great principles of democracy, but on the other hand we have sadly practiced the very opposite of these principles.

Dr. King pointed out that we have a problem with the doing. Notice, too, that he didn’t say we had a problem practicing equality; he said we had a problem practicing democracy.

The word democracy is Greek and means ‘rule by the people.’ According to the Oxford Concise Dictionary of Politics, the first question of democracy is “who are to count as ‘the people?’” That question is at the heart of the most fundamental problem of U.S. history. It also brings us back to the problem of actually doing what it is that we say we believe. It gets back to Dr. King’s question of whether we will do what we say we will do.

Thomas Jefferson justified our disloyalty to, and war with, England with these words:

We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.

Dr. King pointed out that the Declaration of Independence “doesn’t say ‘some men,’ it says ‘all men.’ It doesn’t say ‘all white men,’ it says ‘all men.’”

It has always been amazing to me that throughout the struggle for abolition/emancipation in the 1860s, and 100 years later during the civil rights movement, African Americans did not make arguments that the language of the founding was too narrow or too exclusive. Rather, they often quoted that language because they recognized that it wasn’t the language that was insufficient. It is not the language which fails us; it is our inability to believe in, and act upon, the claims made in that language. In other words, our failure as a nation isn’t that we need a new mandate, it is that we have not lived up to the mandate we started with.

This is very poignant to me because Jefferson himself had neither the capacity nor the courage to believe his own words. He relied on the institution of slavery personally and although other duties kept him from the Constitutional Convention, there is little doubt that he would have been willing to ignore his own Declaration of human equality—and dehumanize African American enslaved persons to the legal status of three-fifths of a person, and devoid of human rights—in order to form a union between the thirteen colonies.

This reminds me of Jesus and Caiaphas, the high priest. In the Gospel According to Saint John, Caiaphas and his council said,

If we let him thus alone, all men will believe on him: and the Romans shall come and take away both our place and nation. And one of them, named Caiaphas, being the high priest that same year, said unto them, Ye know nothing at all, Nor consider that it is expedient for us, that one man should die for the people, and that the whole nation perish not. And this spake he not of himself: but being high priest that year, he prophesied that Jesus should die for that nation; And not for that nation only, but that also he should gather together in one the children of God that were scattered abroad.

In this passage, Caiaphas does not mean to be prophesying about the atoning sacrifice of Jesus Christ, but rather of the expedience of killing this popular and dangerous man in order to keep peace.

When I think of Jefferson and the Declaration of Independence, I have to relate it to Caiaphas. Dr. King, like St. John, was able to see the wisdom in the words of people who didn’t have a full understanding of what they themselves were saying.

It is with that perspective that I relate Jefferson and King to immigration. When are we, as a nation, actually going to believe that all humans are equal? When will accept that “there are no gradations in the image of God,” and that “all men are equal in intrinsic worth.”? When will we see that creating the classification illegal immigrant “substitutes an ‘I-It’ relationship for the ‘I-Thou’ relationship and relegates persons to the status of things.”? This isn’t only evident when people use the adjective “illegal” as a noun (thus stripping the humanity of the individual away, leaving only the legal status). It is seen when we—a country who claims that rights are not given to citizens because of their relationship with the state, but rather to persons because of human kind’s relationship with our Creator—acknowledge the rights of some, but not of others. This is the epitome of dehumanization. My personal humanity refuses to allow me to treat my fellow humans as a function of their legal status simply because “this nation” has yet to “rise up and live out the true meaning of its creed: ‘We hold these truths to be self-evident: that all men are created equal.’”

It is this basic belief, this basic sense of justice and fairness, this basic sense of humanity–and our distance from those ideas–that forces me to entertain the ideas of civil disobedience. If this is not a law that morality requires me to break (aiding a so-called illegal immigrant), there never was such a thing.

website metrics

Characteristics of Just and Unjust Laws

About halfway through this speech, Dr. King states that an unjust law, which we have a moral duty to disobey, “is a code that the majority inflicts on the minority that is not binding on itself.” MLK describes this as “difference made legal.” Let us take this idea and apply it to the situation of the paperless people in this country. Doing so will help us understand exactly what it is we should be working for.

Is the illegality of undocumented people a result of a code that the majority inflicts upon them that is not binding on itself? Yes. In essence the majority says, “You have to get permission to be in this country; I don’t. I can reside and work and exercise politically as a matter of natural right; you can’t.” I believe Dr. King would say that this legal distinction, based upon the “immutable characteristic, arbitrary from a moral point of view,” (Rawls words), constitutes a prime example of an unjust law. Just as under Jim Crow law, some were legally discriminated against by others because of the difference in the color of skin between the two groups, the whole idea of an “illegal immigrant” is one based on the idea of legal discrimination based on the difference in the place of birth between the two groups. So I think our goal should be to abolish the semi-slave status of “illegal immigrant” by recognizing that all people have equal claim to live where they want.

King goes on to say “An unjust law is a code which the majority inflicts upon the minority, which that minority had no part in enacting or creating, because that minority had no right to vote in many instances, to that the legislative bodies that made these laws were not democratically elected.” Because democracy is a system of government that derives its legitimacy from the consent of the governed, the Constitution doesn’t limit voting rights only to citizens. In fact, there is basically no Constitutional distinction between the rights of citizens and non-citizens. It could be argued (though I will leave it for another day) that because those excluded by immigration laws were denied the right to vote as to what the immigration laws would be, these laws are unjust and non-democratic. Given MLK’s standards for just and unjust laws, the goal we should have for this movement is to actualize the right of free migration.<!–[if !supportFootnotes]–>[1]<!–[endif]–>



Having identified immigration restrictions based on place of birth as unjust, Dr. King, I believe, would advocate our challenging this unjust system of segregation. But, “the means must be as pure as the end.” Dr. King talked about three competing approaches to social change. The first approach is resignation. Almost all people use this method to deal with injustice. They learn to adjust to injustice. The second approach, to “[rise] up against the oppressor with corroding hatred and physical violence,” is advocated by some today. As those who want to use nonviolence to bring about a free and equal society, we must not associate ourselves with either of these two methods. Just as Dr. King rejected the methods of Malcolm X, we must be very selective about how we will approach immigration reform. This is important because nonviolence is based in part on the idea that “the end is preexistent in the means.” Thus violence cannot (not just should not, but cannot) create a positive change. This is also true of “internal violence of spirit,” of hatred, and dehumanization. When we vilify those who oppose us or who debase and dehumanize undocumented people, we dehumanize them. We can never see them as our enemy, but as our future ally. We must realize that Jim Gilchrist, Lou Dobbs, and Tom Tancredo are children of God with infinite worth. “The image of God is never totally done,” and “even the worst segregationist can become an integrationist,” are powerful concepts. The civil rights movement sought not to advance the interests of one group over another, but knew that because their cause was just, it would benefit all people, even those who opposed them. This will require that we nurture and develop our capacity to love all humankind. Even more important than our unwillingness to tolerate an unjust system is our unwillingness to let that system cause us to hate. We must never call another human “enemy.”


Not Simply Disobedience; Civil Disobedience

It is interesting to read how strongly King supports the idea of civil disobedience. He does not advocate defying law. He even says “I submit that the individual who disobeys the law, whose conscience tells him it is unjust and who is willing to accept the penalty by staying in jail until that law is altered, is expressing at the moment the very highest respect for law.” Disobeying a specific law because of its immorality, but submitting to the general rule of law shows a very high level of respect for law. It is within that context of respect for the general rule of law, but recognition that some laws are unjust, that I encourage civil disobedience. We must break unjust laws openly and publicly, submit to the authorities, and trust that good people will not tolerate a system that allows good people to sit in jail because they refuse to “adjust to injustice.”

This means that we will be disruptive. Dr. King was constantly called an “outside agitator” for his unrelenting use of nonviolent civil disobedience. In this speech, he defends himself by saying that true peace was not disturbed, but only the “negative peace” of injustice. So it will be with us. We will be called outside agitators, we will be called disruptive. The analogy that came to mind for me, though, came from the “don’t rock the boat” idea. If a person is trapped under a small rowboat, s/he of necessity has to disrupt the apparent tranquility of the boat in order to stop from being drowned. But to suppose that because you are sitting in a stationary boat, peace must exist, is to neglect to see that your boat is potentially the instrument of someone’s death. As the drowning person pulls him/herself up over the edge of the boat, the rowboat dips toward the water on that side, but if the person sitting in the boat will be patient, the boat will regain its calm, but this time it will actually have peace, not just the appearance of it.



My biggest question after reading this speech is this: how will the fact that restricted immigration is federal law make this civil disobedience campaign more difficult than the civil disobedience campaign for integration? Could they have succeeded in the 50s and 60s if they were still living under the decision of Plessy v. Ferguson?

<!–[if !supportFootnotes]–>


<!–[if !supportFootnotes]–>[1]<!–[endif]–> The system of restricted migration, like segregation, uses tokenism to claim that justice is being realized, but like Dr. King, I recognize it as a mirage of justice, not justice itself.

website metrics


Last year, on May 1, 2006, roughly two million people marched in the streets in several U.S. cities. It was the largest protest in United States history. Tomorrow, May 1, 2007 will see similar marches in over 75 cities. Be a part of it by following these links to find where to meet and when.


General information can be found here.

Find information about local demonstrations near you.

Those of us in the Rio Grande Valley will be meeting to march in McAllen at 6pm. Meet at the McAllen Municipal Park at the corner of Bicentennial and Pecan. Wear a white t-shirt and bring a bottle of water.

website metrics

This is an excerpt from Alexander M. Bickel‘s classic book, The Morality of Consent. Bickel was a scholar at Yale Law School and is considered to be one of the chief advocates of conservative legal thought. I include it here with the specific idea of demonstrating where political conservatism should lead Republicans in the immigration debate. I also ask the reader to juxtapose in his/her mind these staunchly conservative ideas with what they hear from Republicans on the issue of immigration. I’ll transcribe the rest of the chapter as soon as I can, and then write about how this applies to immigration.

Chapter 2: Citizen or Person? What Is Not Granted Cannot Be Taken Away

In the view both of the ancients and of modern liberal political theorists, the relationship between the individual and the state is largely defined by the concept of citizenship. It is by virtue of his citizenship that the individual is a member of the political community, and by virtue of it that he has rights. Remarkably enough–and as I will suggest, happily–the concept of citizenship plays only the most minimal role in the American constitutional scheme.

Citizenship, Professor Michael Walzer has written, “itself has become a problem.”<!–[if !supportFootnotes]–>[1]<!–[endif]–> I’m not sure what that means and I’m not sure that I subscribe to its somewhat apocalyptic tone. Yet there is something in it. One remembers a time not long gone when patriotism was a word in common usage and of definite and widely accepted meaning. For many people it plainly is not today.

The patriot may be the exaggerated or emotional citizen, but the concept of citizenship, whatever the malaise that may now afflict it, has been central nonetheless to much of the ancient and modern political thought. A person’s relationship to the law and the duty to obey law, while not necessarily exhausted by the concept of citizenship, is surely tied to it. Aristotle asked, What is a state? And replied that it is the citizens who compose it. Who is a citizen, he said, will vary with the form of government, whether oligarchy or democracy—a tyranny presumably has no citizens. A citizen is not simply a resident. Aliens, though resident, are not citizens nor are slaves. “He who has the power to take part in the deliberative or judicial administration of any state is said by us to be a citizen of that state; and speaking generally, a state is a body of citizens sufficing for the purposes of life.”<!–[if !supportFootnotes]–>[2]<!–[endif]–> Modern thinkers, and particularly liberal ones, generally set no less store by the concept of citizenship. Lockean contractarian doctrine, proceeding as it does from natural rights, is not, as might appear, universalist; it is intended to support and justify the national, constitutional state. The notion of contract presupposes parties, and the parties are citizens.

There is a great deal to the Hobbesian notion that we are all really subjects held to obedience, if no longer by divine command then by a simple fear of our fellows. To the extent that this explanation does not fit our situation or ought not, to the extent that it is not the true or the good explanation, liberal as well as classic thought has considred us citizens who owe obedience, as we owe allegiance, chiefly because we are self-governing, and as self-governing because we are citizens. When they freed themselves from subjection, the makers of the French Revolution called each other citizens, denoting their participation in the state; so the communists later called each other comrade, denoting their common allegiance to an ideology, a movement.

Both classic and later liberal statements of the duty to obey law thus subsume the concept of citizenship, even though not as a wholly necessary or sufficient condition. Also subsumed are the clarity and economy of the law to be obeyed, and of the process by which that law is formed. The classic among classics is, of course, the statement of Socrates as reported in the Crito: “In war as in the court of justice, and everywhere, you must do whatever you state and your country tell you to do, or you must persuade them that their commands are unjust.” It is the citizen who has the standing to persuade his fellow citizens that what they are doing is unjust. Our own system does not resemble the one subsumed in the statement of Socrates in clarity or in economy of application, and not in the immediacy with which the citizen can affect the process of law-formation. That makes a difference; so, also, although less directly and certainly, does the striking ambivalence, the great ambiguity that has surrounded the concept of citizenship in our law and in our tradition.

The original Constitution, prior to Reconstruction, contained no definition of citizenship and precious few references to the concept altogether. The subject was not entirely ignored by the Framers. They empowered Congress to make a uniform rule of naturalization. But, wishing to attract immigrants, they rejected nativist suggestions for strict naturalization requirements, such as long residence.<!–[if !supportFootnotes]–>[3]<!–[endif]–> They plainly assumed that birth as well as naturalization would confer citizenship but they made nothing depend on it explicitly, aside from a few offices: president, congressman, senator, but notably not judge. State citizenship provided one, but only one of several, means of access to federal courts (under the diversity jurisdiction) and conferred the not unqualified right, under the privileges and immunities clause of article IV, section 2, to be treated generally by each state in the same fashion as its own citizens were treated. Discrimination on the sole ground of not holding citizenship in a given state is forbidden; discrimination on other and reasonable grounds is, however allowed. Discriminations on the basis of residence, which is different in concept from citizenship, are permitted; and where state citizenship is a reasonable requirement, as for officeholding, discrimination is not prohibited. But if no special reason restricts a privilege sensibly to the state’s own citizens, the state must extend it to the citizens of other states as well.


There is no further mention of citizenship in the Constitution before the Civil War amendments, even though there were plenty of occasions for making rights depend on it. The Preamble speaks of “We the people of the United States,” not, as it might have, of we the citizens of the United States at the time of the formation of this union. And the Bill of Rights throughout defines rights of people, not of citizens. In the First Amendment, it is “the right of the people peaceably to assemble,” in the Second, “the right of the people to keep and bear arms,” whatever that might mean. And so on. No wonder, then, that citizenship was nowhere defined in the original Constitution. It was not important. Under English law, to which the Framers were accustomed, citizenship was conferred automatically by birth, but the Framers undoubtedly assumed that citizenship did not necessarily run with the blood as it did in English law. And while under English law the status was indelible—once a subject, always a subject, and under rather heavy obligations—the men who made our revolution had broken away from that subjection: they did not believe, as they soon demonstrated, in the indelible, inalienable status of citizenship: and they were prepared to receive and naturalize immigrants similarly willing to shed previously inalienable status of subjection. To be sure, implicitly, the citizen had a right freely to enter the country, whereas the alien did not; and implicitly also the citizen, while abroad, could be held to an obligation of allegiance and might under very specific conditions be found guilty of the crime of treason for violating it, while the alien generally could not. But these were hardly critical points, as the Framers demonstrated by saying nothing explicitly about them. It remains true that the original Constitution presented the edifying picture of a government that bestowed rights on people and persons, and held itself out as bound be certain standards of conduct in its relations with people and persons, not with some legal construct called citizen. The idyllic state of affairs was rudely disturbed by the crisis of the 1850s. Like so much else, it foundered on the contradiction of slavery. A majority of the Supreme Court seized on the concept of citizenship in the Dred Scott case,<!–[if !supportFootnotes]–>[4]<!–[endif]–> in a futile and misguided effort, by way of a legalism and an unfounded legalism at that, to resolve the controversy over the spread of slavery.


Dred Scott, the slave of one John Sandford in Missouri, brought suit in the Circuit Court of the United States for his freedom. As the law of Missouri provided for trying questions of personal freedom, Sandford, in effect, was assumed to hold a piece of property, and Scott claimed that Sandford held it unlawfully because he, Scott, owned it. That is to say, Scott sued to recover himself. It was as if he were chattel somebody had wrongfully taken from him.—I, not this man who is holding me, own me. The ground on which Dred Scott claimed title to himself was this: A predecessor owner had taken Scott from Missouri to Illinois—a free state—and from there into the Upper Louisiana territory, north of the latitude 36 degrees and 30 minutes north—also free, under the Compromise of 1820. So Scott had lived in free territory and in a free state for some years before being returned to Missouri. Scott claimed that freedom is infectious, and that he had caught it. However, Scott could come into federal court only by claiming to be a citizen of Missouri; Sandford, who held Scott in Missouri, was himself a citizen of New York. Scott could not be a citizen of Missouri, Sandford said, because he was “a negro of African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves.” If Scott was not a citizen of Missouri, there could be no federal jurisdiction, and that was an end of the matter. The significance of citizenship was in question. The lower court held that Scott could be a citizen, but that freedom was not infectious and that Scott had not caught it.


In the Supreme Court the majority opinion was written by Chief Justice Roger Taney, Marshall’s successor, a figure not without precedent in our history and not without successors. A line of Turgenev’s Fathers and Sons refers to a character as “at once progressive (in the political sense) and a despot, as often happens with Russians.” It happened in this country, and it happened with Taney, a political progressive—if that is a correct designation for a Jacksonian populist—an economic liberal, and a racist who persuaded himself by mid-life that slavery was not only a necessary evil, if that, but right as well. Taney combined personal kindness with public ferocity, he freed his own slaves and cared for them afterward, but he was opposed politically to any large-scare manumission. He was an able man, broken on the rack of slavery. Dred Scott, Taney held, could not be a citizen, not because he was a slave but because, even if he were a free man, he was “a negro of African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves.” The words “people of the United States” and “citizens” are synonymous terms, he held, used interchangeably in the Constitution: “They both describe the political body who, according to our republican institutions, for the sovereignty, and who hold the power and conduct the government through their representatives. They are what we familiarly call the [single] ‘sovereign people’ and every citizen is one of this people, and a constituent member of this sovereignty.”<!–[if !supportFootnotes]–>[5]<!–[endif]–>


At the time of the framing of the Constitution Taney continued, even free Negroes were not viewed as being a portion of “this people,” the constituent membership of the sovereignty. They were not viewed as citizens or as entitled to any of the rights and privileges the Constitution held out to citizens. In this Taney was probably wrong, as the dissenters, I think, demonstrated. Taney’s Constitution held out rights and privileges to citizens, even though the document itself holds out few to citizens as such, does not bother to define the status of citizenship, and altogether appears to set very little store by it. Taney, by an ipse dixit, argued that when the Constitution says “people” it means the same thing as citizens. Yet the Constitution says citizens rarely, and people most of the time, and never the two interchangeably.


When the Constitution was formed, Taney said, Negroes were “considered as 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 right or privileges but such as those who held the power and the Government might choose to grant them.”<!–[if !supportFootnotes]–>[6]<!–[endif]–> Now, this is a perversion of the complex, guilt-ridden, and highly ambivalent attitude of the Framers toward slavery, and of their vague, and possibly evasive and culpably less than candid expectation of some future evolution away from it. It is possible to have some compassion for the Framers in their travail over the contradiction of slavery. It is not possible to have compassion for Taney’s hardening of the Framers’ position, his stripping it of its original aspirations to decency as well as of its illusions, and his reattribution to the Framers of the position thus altered. He claimed “that unfortunate race” was “regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”<!–[if !supportFootnotes]–>[7]<!–[endif]–> The Negro had no rights which the white man is bound to respect. This sentence became a political slogan of the abolitionists and the Republicans, and one can take some satisfaction in knowing that it shocked the conscience and the expectations of good majorities outside the South, and perhaps in the South itself. They thought it brutal and totally unacceptable. If the Negro, as Taney said, “was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it,” how, then, could he be a citizen? Well, no doubt the troubled men who wrote the Constitution tolerated the buying and selling of human beings, but it is not true that their thought was as consistent and brutal as Taney made it out to be. They expected, in some measure fatuously perhaps, to redeem themselves. “I tremble for my country,” said Jefferson, “when I think that God is just.” Yet Taney denied the possibility of any process of redemption under this Constitution, and appealed for good measure to an unjust God.


The original Constitution’s innocence of the concept of citizenship was thus violated in the Dred Scott case, in an encounter with the contradiction of slavery. A rape having occurred, innocence could never be restored. But remarkably enough, after a period of reaction to the trauma, we resumed behaving as if our virginity were intact and with a fair measure of credibility at that. Fewer than four months after the Thirteenth Amendment became law, in December 1865, Congress enacted the Civil Rights Act of 1866. With the express intention of overruling Dred Scott, the act declared that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”<!–[if !supportFootnotes]–>[8]<!–[endif]–> This was the first authoritative definition of citizenship in American law. It had become necessary to make clear that race and descent from slaves was no ground of exclusion. For the first time, and for the same reason, a set of rights depending on citizenship was incidental. A previous version of the statute referred to inhabitants in conferring these new rights, rather than to citizens.<!–[if !supportFootnotes]–>[9]<!–[endif]–> As it occurred to the draftsman that he had better make clear that Negroes could be citizens, it became a matter or ease in drafting also to define rights he was about to confer in terms of citizenship. The Dred Scott decision used the concept of citizenship negatively, as exclusionary. It indicated who was not under the umbrella of rights and privileges and status and thus entrenched the subjection of the Negro in the Constitution. The Civil Rights Act of 1866 was equally negative; Dred Scott had to be exorcised. In the process, as a matter of the flow of the pen, the concept of citizenship was revived.


When the same Congress that passed the 1866 Civil Rights Act wrote the Fourteenth Amendment, it forbade any state to “abridge the privileges or immunities of citizens of the United States.” The author of this phrase was John A. Bingham, a Representative from Ohio, a Republican of abolitionist antecedents. He was a type that frequently occurred in our political live, a man of enthusiastic rhetorical bent, on the whole of generous impulse, and of zero analytical inclination or capacity. A Republican colleague in the House recalling quite specifically the privileges and immunities clause, and that it came from Bingham, said: “Its euphony and indefiniteness of meaning were a charm to him.”<!–[if !supportFootnotes]–>[10]<!–[endif]–> The only explanation of this clause that was attempted in the long course of the congressional debate on the amendment came from Bingham, and it confirms his contemporaries’ estimate of him—it was highly confused. As an afterthought, by amendment in the Senate of the text passed in the House, a definition of citizenship modeled on the Civil Rights Act of 1866 was added: “All persons born or naturalized in the United States and subject to the jurisdiction thereof [which may exclude the children of foreign ambassadors, and means little, if anything more than that], are citizens of the United States and of the state wherein they reside.”


The Dred Scott decision had to be effectively, which is to say constitutionally, overruled by a definition of citizenship in which race played no part. So, in a fashion no one quite understood but everyone apparently found necessary, Dred Scott was exorcised. That having been done, the rest of section 1 of the Fourteenth Amendment made no further reference to citizens. And the distinction between citizens and persons did not go unnoticed. Senator Howard pointed out that the due process and equal protection clauses “disable a State from depriving not merely a citizen of the United States, but any person,… of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State.”<!–[if !supportFootnotes]–>[11]<!–[endif]–>


At this stage of our history we stood at a point where the status of citizenship might have become all-important, not because of a deliberate, reasoned decision, but owing to the particular dialectic of the Dred Scott case, which one may view as an accident, and of the natural reaction to it. Actually, the concept of citizenship, once inserted in the Fourteenth Amendment, survived as a drafting technique in the three later constitutional amendments which safeguarded the right to vote against particular infringements. But on the whole the development was away from this concept—owing to yet another accident.


This other accident was the decision in the Slaughter-House Cases<!–[if !supportFootnotes]–>[12]<!–[endif]–> of 1873, in which the Supreme Court for the first time construed the newly enacted Fourteenth Amendment. The first reading of the great Reconstruction amendment had nothing to do with Negroes, slaver, civil rights, or in any other way with the aftermath of the Civil War. The case arose instead out of a more than ordinarily corrupt enactment of the Louisiana legislature in 1869, which created a slaughtering monopoly in New Orleans. In retrospect, one never ceases to be astonished that the Fourteenth Amendment should have been regarded as relevant to a controversy about butchering in New Orleans. But it did occur to one of counsel for the butchers: John A. Campbell, a former justice of the Supreme Court of the United States and a member of the majority that decided the Dred Scott case, an opponent of secession on political grounds, who—alone among the Southern justices—had thought it his duty to resign when his state seceded. Campbell argued that the Fourteenth Amendment, “with an imperial authority,” had defined national citizenship and had made it primary. The privileges of a citizen of the United States must include the right “to cultivate the ground, or to purchase products, or to carry on trade, or to maintain himself and his family by free industry”.<!–[if !supportFootnotes]–>[13]<!–[endif]–> All this eloquence went for nought. Campbell’s clients lost. “The banded butchers are busted,” Matthew Hale Carpenter, counsel for the monopoly, wired his clients.<!–[if !supportFootnotes]–>[14]<!–[endif]–> The Fourteenth Amendment had wrought a “mighty revolution” in the Constitution, as Campbell had said; it had created “great endowments of privilege, immunity, of right,”<!–[if !supportFootnotes]–>[15]<!–[endif]–> as he claimed, but they were not to depend on citizenship.


The main purpose of the Fourteenth Amendment’s definition of citizenship, Justice Samuel F. Miller began for the Court, was to overrule the Dred Scott case and “to establish the citizenship of the negro.”<!–[if !supportFootnotes]–>[16]<!–[endif]–> In addition, the definition clarified what Miller thought was a previously open but hardly world-shaking question: whether a person born not in a state, but in a territory or in the District of Columbia, who was therefore not a citizen of any state, could be a citizen of the United States. He could be. The Fourteenth Amendment made sure there would be no limbo.


But what could be meant by privileges and immunities of citizens of the United States? The sole purpose of the privileges and immunities clause of the original Constitution, article IV, section 2, said Justice Miller, was “to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of rights of citizens of other States within your jurisdiction.”<!–[if !supportFootnotes]–>[17]<!–[endif]–> But the rights themselves did not depend on the federal government for their existence or protection. Their definition and their limitation lay within the power of the states.


Was the Fourteenth Amendment, by creating national citizenship, meant to work the radical change that Campbell had urged of making basic relationships between the individual and the state turn on federal law? If so, there had been a transfer from the state legislatures to Congress of the power to regulate economic and social conditions. For by secion 5 of the Fourteenth Amendment Congress was given enforcement power. It could, therefore legislate at will on virtually any such subject. What is more, power would be transferred not only to Congress but to the Supreme Court, which would be constituted “a perpetual censor upon all legislation of the states” dealing with social and economic affairs, “with authority to nullify [any regulation enacted by a state that the Supreme Court] did not approve.”<!–[if !supportFootnotes]–>[18]<!–[endif]–> With the experience of a hundred years, we must call Miller’s answer to Campbell’s conception of national citizenship a liberal, a progressive answer, favoring majoritarian political power to enact social and economic regulation. Miller answered for the majority with a vigorous negative. The purpose of the privileges and immunities clause was to define, secure, and protect the citizenship of the newly freed slaves, that and no more. It was a close decision; the Court divided 5 to 4.



<!–[if !supportFootnotes]–>


<!–[if !supportFootnotes]–>[1]<!–[endif]–> Michael Walzer, Obligations: Essays on Disobedience, War and Citizenship (Cambridge: Harvard University Press, 1970), p. 204.

<!–[if !supportFootnotes]–>[2]<!–[endif]–> Walzer, Obligations, pp. 205 et seq.

<!–[if !supportFootnotes]–>[3]<!–[endif]–> See Frank George Franklin, The Legislative History of Naturalization in the United States (New York: Arno Press, 1969), chap. 2.

<!–[if !supportFootnotes]–>[4]<!–[endif]–> Scott v. Sandford, 60 U.S. (19 Howard) 393 (1857).

<!–[if !supportFootnotes]–>[5]<!–[endif]–> Ibid. at 404.

<!–[if !supportFootnotes]–>[6]<!–[endif]–> Ibid. at 404-5. The Framers intended that state citizenship could be conferred on free Negroes, Taney said, but Negroes were not thereby entitled to any rights of citizens of the United States. He and his majority further decreed that the Compromise of 1820 was unconstitutional. The point was central to the great national debate which followed. The Lincoln-Douglas debates chiefly turned on it.

<!–[if !supportFootnotes]–>[7]<!–[endif]–> Ibid. at 407.

<!–[if !supportFootnotes]–>[8]<!–[endif]–> Civil Rights Act of April 9, 1866, ch. 31, § 1, 14 Stat. 27.

<!–[if !supportFootnotes]–>[9]<!–[endif]–> See Charles Fairman, “Reconstruction and Reunion 1864-88,” History of the Supreme Court of the United States (New York: Macmillan Co., 1871), 6: 1172.

<!–[if !supportFootnotes]–>[10]<!–[endif]–> Ibid., p. 1270.

<!–[if !supportFootnotes]–>[11]<!–[endif]–> Ibid., p. 1295.

<!–[if !supportFootnotes]–>[12]<!–[endif]–> Slaugher-House Cases, 83 U.S. (16 Wallace) 36 (1874).

<!–[if !supportFootnotes]–>[13]<!–[endif]–> Fairman, “Reconstruction and Reunion,” p. 1354.

<!–[if !supportFootnotes]–>[14]<!–[endif]–> Ibid., p. 1349.

<!–[if !supportFootnotes]–>[15]<!–[endif]–> Ibid., p. 1346.

<!–[if !supportFootnotes]–>[16]<!–[endif]–> 83 U.S. (16 Wallace) at 73.

<!–[if !supportFootnotes]–>[17]<!–[endif]–> Ibid. at 77.

<!–[if !supportFootnotes]–>[18]<!–[endif]–> Ibid. at 78.

website metrics


The Southern Poverty Law Center released a report yesterday, stating that the current system of exploiting undocumented laborers working in the United States is “Close to Slavery.” The article, which I encourage you to read, can be found here.

How did we end up with a system where some, based on citizenship (which is almost entirely a function of place of birth), can expect one wage while others cannot? It hasn’t always been the case. From 1776 until 1882, immigration to the United States was open. That all ended with the Chinese Exclusion Act. That Act ushered in an immigration system based on racism which still exists today.


From 1882 to 1965, our immigration laws were explicitly racist. They aren’t so overt now, but the same quota system that started in 1924 exists today – with the same intention and the same affects. Immigration restrictions are designed to keep people (specifically brown people) out, and that is exactly what they do.

For a detailed history of U.S. immigration law, click here.


Representative John Lewis speaking at an immigrants’ rights rally.And the leaders of the Southern Poverty Law Center aren’t the only ones pointing out the similarities between the criminalizing of immigrant workers and slavery.

Our civil rights heroes such as John Lewis, have said the same thing. For more discussion on that, follow this link.



website metrics

When the founding fathers of the United States of America drafted our Constitution, they did something I find impressive. They set up a system to limit what government could do. This shows a great deal of humility, in my opinion, because they were basically saying, ‘Here are some things we can’t do.’ They didn’t say, ‘The congress after ours shall make no law abridging the freedom of speech, but since we’re the ones to make up this government, this generation is wise enough to decide what speech should be abridged and what speech should be free.’ By saying ‘These things government will not do,’ they were actually saying ‘These things we will not do.’

Beyond this, the founders created a way (within the government) for their generation or any other, to change any aspect or even the very core of what our government is.

When thinking about this, I’ve been struck with how much humility it must have required them in order to approach what they were doing this way. And I’ve also come to believe that a similar humility usually accompanies the greatest of ideas.

For instance, I’m reading Satyagraha by Mohandas Gandhi right now. It gets into the philosophy of non-violent non-cooperation much more than his autobiography does (which I read last year). Like the founding fathers, Gandhi set up a system of checks in case his ideas were wrong. For instance, non-violence was insisted upon, partly because it was a check against error. If a person believed passionately that s/he was doing the right thing, but in fact wasn’t, the method of non-violence insured that no injury was done to anyone but the person him/herself. In civil disobedience, the practitioner was always required to submit him/herself to jail, rather than trying to avoid the penalties of breaking the law–even though the broken law was done without motivation for personal gain, and was seen as breaking a law that—because it was unjust—was no law at all (St. Augustine’s words). This was done in order that no person became, as Gandhi put it, “a law unto himself.”


I want to create a nonviolent movement to advance the right for humans to change their home and allegiance, effectively turning the clock back 124 years the last time we had non-racist immigration policy.

Nonviolent direct action provides me what I want. First, I want the freedom to be radical if I think I ought to be. (And by radical, I mean unconcerned with the mainstream. Radical, as I see it, is entirely defined by the mainstream.) But more importantly than that, I want to be right. I want truth. Truth, after all, is what Jesus said would make us free. Nonviolent direct action is a method completely aligned to the notion of the humility of great ideas.

So what will this movement look like? Well, first off, I want to start a study group in Matamoros. We will read Gandhi and King primarily, but may read others like John Lewis, Thoreau, Thich Nhat Hanh, and of course Jesus of Nazareth. From this reading group, we will select a corps of satyagrahis who will illegally immigrate to the United States. Those to participate in the civil disobedience campaign will be carefully selected based on several criteria (never having tried to immigrate illegally, having applied and been rejected for immigration prior to involvement with our campaign, a history of community service, employability in critical needs sectors of the economy-like teachers and nurses, among other criteria). These activists will be trained in nonviolence, sign pledges of nonviolence, be organized, etc., like the Student Nonviolent Coordinating Committee members of the 1950’s and 1960’s were. We will conduct thorough criminal background checks and immunization checkups on every individual. We will write short biographies on each of the participants and will invite the local and national press to do the same. Then we will notify the border patrol, local law enforcement, and press of our intention to cross the international border without permission. At a set time and date we will cross the border illegally and await apprehension. At that point, we will argue our case in court, but will encourage all undocumented workers to submit to the law in a civil way.

These ideas are way too untried and untested, and I welcome their modification, but that is what the nonviolent reading group is all about. For those committed to the human right of migration, and committed to the practice and philosophy of nonviolent direct action, I eagerly await their amendments to my ideas.

The humility of great ideas also affects how we will fundraise. Even that will be set up not to expedite our ends, but to check our ends and our means. For instance, in funding his movement in South Africa, Gandhi initially used donations to purchase a property for the purpose of leasing it and using the residual income to fund the month to month operations of the movement, but he later abandoned this practice as a mistake. He said that in social movements, no endowment should be amassed, and no residual income used, nor even should benefactors be allowed to make a pledge to contribute on a regular basis; but a movement should instead rely each month on the contributions it received that very month.

This, of course, does not make any financial sense, but Gandhi said that it was necessary in order to place a check on the movement. A social institution should always be doing the will of the people and one way to ensure that is to make it rely continually on the people for its financial support. Mother Teresa did the exact same thing, and both she and Gandhi regularly turned down money, despite not knowing how they would fund their next projects. Jesus taught a powerful lesson about financing when he taught the parable of the widow’s mite. If in addition to the lessons of finance taught by Gandhi and Mother Teresa, we adopt a widow’s-mite policy and a don’t-let-the-left-hand-know-what-the-right-hand-is-doing policy, we place a very heavy check on our movement.

I’ll discuss these two principles in a later post.

website metrics

Vatican Official Criticizes U.S. Border Fence Plan

ROME, Nov. 14 — A top Vatican official called the Bush administration’s plans for hundreds of miles of new security fences on the United States-Mexico border “inhuman.”
“Speaking of borders, I must unfortunately say that in a world that greeted the fall of the Berlin Wall with joy, new walls are being built between neighborhood and neighborhood, city and city, nation and nation,” said Cardinal Renato Martino, according to news agency reports.


website metrics

« Previous PageNext Page »