Legal theory


Judy Ackerman Protesting at Rio Bosque

EL PASO – A 55-year-old Army veteran hunkered down in front of construction crews who were building the fence along the U.S.-Mexico border Wednesday, halting work for about eight hours before she was arrested.

Judy Ackerman, one of about a dozen people at a peaceful protest east of El Paso on Wednesday, was handcuffed by Texas Department of Public Safety troopers after several hours of figuring out which authority was responsible for removing her. It wasn’t clear what charges she’d face.

Work on the fence resumed immediately after Ms. Ackerman was led away. Before her arrest, the white-haired woman sporting a reflective vest and hard hat cheerfully chatted with authorities. About 20 workers were milling around the site, leaning against heavy equipment and dump trucks and taking pictures of her with their cellphones.

“They have a job to do, but today their job is to take a break,” said Ms. Ackerman, a retired sergeant major who spent 26 years in the Army.

She crossed a canal before workers arrived and took up a position on a levee where large steel poles were being erected. The levee is in a desolate area several miles east of downtown El Paso, near the 370-acre Rio Bosque Wetlands Park.

“They have this wonderful park here, and the wall is messing it up,” Ms. Ackerman said.

She was on land maintained by the International Boundary and Water Commission. Al Riera, the principal engineer for the commission, said officials were notified about her presence early Wednesday and spent several hours trying to figure out what agency should remove her.

The Associated Press

www.vmlaw.us

Follow the link below to hear NYU Law Professor Cristina Rodriguez’ lecture at Yale Law School entitled Burden Sharing in an Age of Migration.
Graphiti Art in Bethlehem

Graphiti Art in Bethlehem

www.vmlaw.us






 

website metrics

Today, I gave this speech to the Brownsville City Council Meeting during the public comment portion.  The Brownsville Herald ran an article on Sunday that said that the Mayor was betrayed by the City Council who went behind closed doors to allow the Army Corps of Engineers onto city land to survey for the wall.  It is in response to that that I wrote this speech-on the back, and in the margins of the agenda.   

Yesterday, Princeton University recognized five of my 8th grade students for essays they wrote on the topic “What would Martin Luther King say and do about immigration?”  Princeton opened this year’s essay contest to my students because they used my blog, nonviolent migration, as a resource for their contest.  These five students, Melissa Guerra, Yessenia Martinez, Abigail Cabrera, Vanessa Trevino, and Blanca Gonzalez were the only five students who had the faith to submit an essay and all were recognized by Princeton. 

I asked the rest of my 121 students to speak honestly about why they had decided not to write for the contest.  The overwhelming number of students responded that it wasn’t worth trying because they felt that because Princeton is in the North, they would prejudge their work since they live on the border.  This experience reminded me once again just how excluded these children feel.   Even though this wall will be South of most of my students, my students are smart enough to know that the same motive behind this wall is also shouting at them, saying, “You are not us; keep out!” 

These students, who started with such enthusiasm when the contest was announced, lost hope and they let their fears overcome their faith.  This broke my heart because I love my students, but your capitulation is something other than heartbreaking because you are no longer 8th graders.  We expect you to hold out hope.  We expect you to keep the faith.  We expect you to work for us, and let us fight this fight. 

At this time, we want to express our love… and forgiveness… to all the members of the commission.  However, as a result of your action, we must now find a legal way to undo what you’ve done so that my 8th graders don’t come to learn that you prejudged them too. 

website metrics

Siding with justice if not the law

GERALD E. SHENK

In today’s parlance, Douglass, a runaway slave, was an “illegal immigrant” into the free states. Under Maryland law in the 1840s, Douglass was the private property of Thomas Auld. Not only was it illegal for him to run away, it was illegal for others to assist him.

Article IV, Section 2, of the U.S. Constitution required the authorities of any state to which Douglass traveled to arrest and return him to his owner, whether or not slavery was legal in that state.

By the 1850s, federal law required citizens of every state to assist in the capture and return of slaves. Thousands of average citizens knowingly faced arrest and imprisonment for violating this law. Some died for their refusal.

Today, every argument against “illegal immigrants” has its analog in the defense of slavery. Runaway, or freed, slaves created unfair competition for jobs; they were, by definition, criminals; they threatened social and cultural cohesion.

The only argument they and their allies had was justice.

The full article can be found here.

website metrics

The next three week’s readings come from Martin Luther King’s most influential book, Why We Can’t Wait.  In this week’s chapter, “The Sword That Heals,” Dr. King discusses many of the same principles that we have discussed in earlier weeks.  This time, the principles of nonviolent civil disobedience are told in their historical context.

 

Civil Disobedience

            One of the most persuasive passages I’ve read about civil disobedience comes from this chapter.  Dr. King wrote,

          There were no more powerful moments in the Birmingham episode than during the closing days of the campaign, when Negro youngsters ran after white policemen, asking to be locked up.  There was an element of unmalicious mischief in this.  The Negro youngsters, although perfectly willing to submit to imprisonment, knew that we had already filled up the jails, and that the police had no place left to take them.

            When, for decades, you have been able to make a man compromise his manhood by threatening him with a cruel and unjust punishment, and when suddenly he turns upon you and says: “Punish me.  I do not deserve it, I will accept it so that the world will know that I am right and you are wrong,” you hardly know what to do.  You feel defeated and secretly ashamed.  You know that this man is as good as you are; that from some mysterious source he has found the courage and the conviction to meet physical force with soul force.

            So it was that, to the Negro, going to jail was no longer a disgrace but a badge of honor.

When I read these paragraphs, I am completely convinced that nonviolent civil disobedience—when practiced widely—has more power to break the psychological shackles of unjust laws crippling our community than almost any other principle.  Moving across international borders to pursue happiness is not wrong!  We must stop acting like it is.  We must challenge (not just ignore) the laws that prevent that pursuit.

 

Constitutional Litigation

            In this chapter, Dr. King gave a summary of the various approaches for equality since Emancipation.  He started with Booker T. Washington’s admonition to work hard, moved on to W. E. B. Dubois’s call for education, explained Marcus Garvey’s ideas about racial pride and a return to Africa, and ended up describing the NAACP’s recourse to Constitutional litigation.  It is then that Dr. King said, “Nonviolent action, the Negro saw, was the way to supplement—not replace the process of change through legal recourse.”

            This quote brings me back to a problem I have been wrestling with for quite some time, without sufficient success.  What success can we hope to see in a civil disobedience campaign without Constitutional litigation?  This is difficult because of the plenary power doctrine, which says that Congress has absolute power of the area of immigration and the courts cannot overturn its legislation.  If the Supreme Court is unwilling to apply the Constitutional guarantees to immigration law, how damaging is that for us?  How necessary is litigation in the fight for rights in the United States?

Nonviolent vs. Violent Reform

            I love King’s quote here in pages 27 and 28, and just have to share it.

          Angry exhortation from street corners and stirring calls for the Negro to arm and go forth to do battle stimulate loud applause.  But when the applause dies, the stirred and the stirring return to their homes, and lie in their beds for still one more night with no progress in view.  They cannot solve the problem they face because they have offered no challenge but only a call to arms, which they themselves are unwilling to lead, knowing that doom would be its reward.  They cannot solve the problem because they seek to overcome a negative situation with a negative means….  The conservatives who say, ‘Let us not move so fast,’ and the extremists who say, ‘Let us go out and whip the world,’ would tell you that they are as far apart as the poles.  But there is a striking parallel: They accomplish nothing.

Let us not be guilty of the same accusation.  When I am properly trained, I plan to actually do what I’m talking about.  I plan to break the law and submit myself to arrest.  I am trying to get in contact with a law student who is organizing a civil disobedience campaign for this summer in the Arizona desert.  He plans to defy the law that makes it a felony to aid someone that a reasonable person would consider to be an “illegal immigrant.”  Given that people are dying in the desert, he plans to provide food, water, and a car ride to anyone who needs it.  I’m hoping he plans to get arrested.  If so, I’ll likely join him.

 

The African American Example

            Dr. King knew this day would come.  On page 31, King said, “The Negro saw that by proving the sweeping and majestic power of nonviolence to bring about the beloved community, it might be possible for him to set an example to a whole world caught up in conflict.”  He often said some variation of,

          When the history books are written in the future, somebody will have to say ‘There lived a race of people, black people, fleecy locks and black complexion, of people who had the moral courage to stand up for their rights.” And thereby they injected a new meaning into the veins of history and of civilization.

When I study history, I am compelled to say it – to quote it just like King said it.  When I study history, I am compelled to look at the sacrifice of the hundreds of thousands who marched, the thousands who were jailed, the hundreds who were beaten, and each person who was killed, and say ‘I will not let your lesson go unlearned.’

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

Next Page »