This week, Republican presidential candidate, Donald Trump, urged that Muslims be banned from entering the United States. He demanded a "total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what's going on."
Trump's comments come at a time of growing concern about ISIS and a panic about terrorism committed by radicalized extremists, including last week's fatal mass shooting in San Bernardino, California. Despite widespread criticism, Mr. Trump's rhetoric undeniably appeals to more Americans than many around the world might realize. For months Trump has been a forerunner among Republicans bidding the presidency. His brash sound bites draw huge crowds from Americans and significant media attention. It turns out that more Americans than would have been expected find a kinship with Mr. Trump's ideas--and that should be worrisome.
In our forthcoming essay published in the Harvard Law Review (found here), Dean Erwin Chemerinsky and I document how claims to protect the nation too often served as proxies for nativism, discrimination, political expedience, and racism. Frequently, politicians literally turned to the nation's "public health," as a justification for barring certain groups. We note that "many people of color and vulnerable minority groups have been caused great harm in the name of advancing and protecting" the public. Sadly, even our courts have failed to protect basic civil liberties during times of national panic and people have suffered as a result.
Ironically, protecting the public has at times served as the very justification for harming Americans. It has fueled blatant racial hostility and bias. Protecting the public has harmed women and justified draconian legal policies. A century ago, when politicians feared that that our nation's physical and fiscal health was being "swamped" by people who were "socially unfit," they called for bans on reproduction.
By the late 1920s, boosted by a landmark decision in the U.S. Supreme Court, Buck v. Bell, dozens of states turned to banning poor whites and African Americans from reproducing--literally stripping away a fundamental human right. More than 30 states enacted eugenics laws. These laws served as the prototype adopted by Hitler and the Nazi regime a decade later. (More can be read about that here, here, and here.)
In 1927, the U.S. Supreme Court claimed that the legal foundation for vaccination was "broad enough to cover cutting the Fallopian tubes." That case involved a poor, white teenager who became pregnant due to rape. The state of Virginia wanted girls like her sterilized. The Supreme Court referred to this as a "lesser sacrifice," because "it is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough." It is estimated that well over 60,000 Americans were non-consensually sterilized.
However, nonconsensual sterilization provides only one stunning example of government abuse of power in times of national crisis. Unfortunately, there are many more forgotten or lesser known cases. For example, "children, men, and women have been interned, banned from entering the United States, detained, subjected to horrific human research, and otherwise injured by government abuse of power under the cover of protecting or promoting" our nation and even its health.
Just last year, politicians called for banning all West Africans from entering the U.S. because of an Ebola panic. It was a policy prescription some Americans embraced. In the wake of that, a Texas college rescinded its scholarship offer to a student from Nigeria (who did not have Ebola); little girls from Rwanda were refused entrances at their New Jersey elementary school (even though the country is thousands of miles from the Ebola outbreak). In Maine, the governor forced a nurse who worked on a humanitarian mission in the Ebola outbreak region into quarantine--though she showed no signs of the disease. She wasn't allowed to have any contact with another human being--under threat of law enforcement.
Sadly, the roots of exclusionism extend back, in platforms that galvanized the electorate, but caused significant harms to innocent people. For example, Angel Island and Ellis Island were actually quarantine detention stations, rationing rather than opening entry to the United States. Chinese immigrants on the West Coast and persons of Mediterranean origin on the East Coast were flagged as disease prone and sexually deviant.
As we note, those ports "served the specific and blatant roles to keep out the Chinese (and later all Asians), pregnant women, women of questionable sexual character, homosexuals, the mentally ill, and criminals."
Congress enacted several laws banning Chinese men and women from entering the U.S., including the Chinese Exclusion Act--and the Page Act to exclude their wives and Chinese women generally. In the early 20th century, like now, politicians claimed government needed to launch a war on drugs. Politicians blamed Americans' growing addiction to heroin on Chinese men, claiming they were seducing and corrupting white women. Many white Americans agreed--for various reasons; sometimes they were simply frustrated by their own poverty and substandard living conditions.
Chinese men were scapegoats. Despite the fact that a German pharmaceutical company, Bayer, manufactured and distributed "heroin," and American doctors robustly prescribed it, politicians realized the political power in blaming Americans' drug use on Chinese immigrants.
Importantly, the political rhetoric inciting Americans against Asians caused a horrific radicalization that overtime emboldened groups of white Americans to burn down Chinese communities, rob East Indians of their property, and support internment policies. Japanese-American families that lived in the U.S. for three, four, and even five generations were stripped of their homes and belongings and forced into camps. Political rhetoric lit the euphemistic keg, sparking decades-long bans on Asian immigration to the United States.
Finally, until 1990, the United States banned homosexuals from immigrating to this nation. That is, for decades a person could be deported for simply being gay. That policy was repealed through the 1990 Immigration Act, which "removed homosexuality as a ground for exclusion." Yet it's worth observing that policies to exclude homosexuals were matched by domestic policies that effectuated second-class citizenship for gay Americans.
Donald Trump's political rhetoric has historical resonance--it exposes how our worst fears and anxieties can lead to shameful conduct that not only imposes real costs on "outsiders," but also the American public.