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Leo Pierson Headshot

On Anti-immigration Laws and the Supreme Court

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"Should more creative and positive alternatives to meet [immigration concerns] continue to be neglected, nativist trends will proliferate across the nation."

I wrote that as a policy warning in the conclusion of my Master's thesis back in spring of 2009. Now, nearly three years to the day, the Supreme Court Justices are set to consider the constitutionality of Arizona's restrictionist immigration law. The decision they render could alter the course of American history.

While most conversations will focus on the legal arguments, I'm going to talk about the intent of these laws and the principles these policies seek to undermine. After all, the most important thing to the people and to the stability of our country is the legacy of fairness that undergirds our constitutional principles. It is that ever fragile ideal of 'justice on both sides' to which state level anti-immigrant policies now lay siege.

Immigrants--particularly Latinos in both their specificity and generality--are seen as "other" than what some folks--from everyday citizens to those embedded in our national security apparatus--conceive of as "real Americans", or productive, law abiding members of society. Even though greater than 85% of Latinos are citizens and legal residents, we disproportionately carry the burdensome weight of being illegal as stigma.

While this existentialist belief in illegality--the core of the anti-immigrant argument--runs contrary to every academically rigorous research paper on the subject, political leaders such as Arizona Governor, Jan Brewer, relentlessly push their disingenuous vitriol onto the public sphere with abjectly false statements like:

"We cannot afford all this illegal immigration and everything that comes with it: everything from the crime and to the drugs and the kidnappings and extortion and the beheadings and the fact that people can't feel safe in their communities; it's wrong!"

The American sociologist, Erving Goffman, famously wrote, "By definition...we believe the person with a stigma is not quite human. On this assumption we exercise varieties of discrimination." The type of stigma that particularly fits us Latinos, he called a "tribal stigma" such as "race, nation, [and] religion." These, said Goffman, "can be transmitted through lineages [or entire ethnicities] and equally contaminate all members of a family."

So in the case of the contemporary immigration question, specifically Latinos--not entirely unlike the Irish, Italians and Jews in times past--have been dehumanized and demonized as undesirables, as illegals. And it isn't just those who are undocumented; we are all caricatured as "illegal criminals". Even our children, who represent roughly a full third of our population, are caste in such stigmatizing terms as anchor babies... dog food... parasites. As Elena Schlossberg cogently stated in a 2007 county board meeting, "They are talking about children! And [politicians] have not taken a leadership role to stop this!"

You see, when I think of Latinos, I think of artists and poets and proud, hard working families. I think of the people who will--quite literally--sustain the very foundations of this great nation when, in the not-so-distant future, most other demographics begin a precipitous decline.

But that intolerably pejorative term "illegal" spoils everything positive and powerful about what it means to be Latino. In the process of being labeled as illegals, we move away from the self identity as one of this nation's greatest hopes and toward the social construction of dark, dangerous and dirty criminals; criminals who do not respect U.S. culture, language or laws. Thus, using the term "illegal", which functions as a racial epithet, allows "legals" to justify passing all sorts of race-laced laws because "illegals"--criminals--destroy thriving, safe communities.

Anti-immigrant laws are inherently or structurally discriminatory precisely because their juridical constructions are directly premised, not on fact, but on the wretched foundations of negative stereotypes and stigmas. These laws go beyond the tacit encouragement of racial profiling by overtly validating the coerced removal of security threats, the definitions of which are constructed out of false ideologies of criminality.

These laws should be seen for what they are: attempts to shred the fabric of American culture. This is a state-by-state effort to chip away at the very essence of who we are as a nation. They don't simply mirror nor do they compliment federal policy. Rather, with sweeping and divisive hostility, they both impede upon the sense of justice and fairness laid out by the American Constitution's Enlightenment principles, and vis-à-vis stigma, they attempt to alter the definition(s) of who is and who is not American. The later represents the first material steps toward creating a pervasive "show-me-your-papers" society; a dystopic reality already being forced upon clergy and elementary school students in states like Alabama.

Indeed, Judge Bolton noted in her opinion that these laws will significantly increase "the intrusion of police presence into the lives of legally present aliens (and even United States citizens), who will necessarily be swept up" by requiring everybody to prove their status.

Not once has history rewarded societies that follow this foreshadowed path. So when the Supreme Court Justices hear this case, they truly ought to let their minds wander a bit to the imagery conjured by that notion.

And as you watch and wait for their decision, you ought to do the same.