05/14/2010 12:52 pm ET Updated May 25, 2011

Fractures in the System: How Arizona Has Forced the Divide between the Ethnic and the Civic

As hundreds of opinions emerge regarding the recent legislation Arizona has enacted regarding immigration and cultural education, it is important that we step back and identify the institutional damage the state of Arizona has done to the lawmaking process it claims to hold in such high regard. Amidst the discussion taking place about SB1070 (now mobilized as the "papers please" law) and HB2281 (the law that currently targets ethnic studies programs in local school districts) the legislative process has been used in place of meaningful public discussion, and as a result, has forced the law-making process to not only overstep its boundaries, but to weaken itself in the process. Anytime a system of laws is abused in such fashion, institutions and governments invariably encounter a cultural backlash, and the system of laws becomes a less credible part of our daily lives. Use something too much, and for things it was not designed to do, and you'll soon find that it won't do the work it's supposed to do when you really need it. This is not a very difficult concept to understand. By passing both laws in temporal proximity to one another, Arizona has revealed itself to have great anxiety not merely about illegal immigration in this nation, but about diversity itself. To use the law as one's vessel for articulating anxieties about one's own populace is not only an abuse of the law-making process, it violates the very credibility that a system of laws needs in order to have meaning for its citizens. The violence done to the state in the case of Arizona's recent legislation is actually more egregious because of the manner with which it implicitly and passive-aggressively renders citizens subject to arbitrary ideas about what constitutes an ethnic identity, while masquerading under the veneer of legal authority.

As other states consider passing similar measures, and as advocates of such legislative measures continue to insist upon the rhetorical stance that they are doing the right thing because "we are a nation of laws," let's stop to think about what a nation of laws really means. I take the term "we are a nation of laws" to mean that we value the lawmaking process of our current political system - a democratic republic founded upon the principles of basic human freedoms and implicit responsibilities to ensure those freedoms are upheld. As a democracy, one of our greatest responsibilities is to be able to withstand the many ways that cultural diversity and multiple-ethnicities challenge us to be who we are and what we believe in. Furthermore, one of the hallmarks of this nation is that its system of laws has been able to adequately contain, if not always in spirit, then formally, the ability for different people of various ideologies and backgrounds to thrive within a larger civil structure. However, Arizona has legislated two bills that on the surface claim to preserve the authority of the laws of the land, but in fact, fracture and weaken it.

To understand this further, let us differentiate between civic and ethnic nationalism. Civic nationalism is a way of perceiving the nation as a community that is bound together by a formal legal structure. In the United States, it is fair to assert that we commonly bind ourselves through the cultural heritage that the Constitution provides for, and we value the history that ties us to the principles of democracy, of checks and balances, and the republic for which it stands. We are acculturated (and indoctrinated) to this system in myriad ways, not the least of which is a pledge of allegiance we teach our children to recite and the many legal and political documents that we have elevated to the status of cultural icons. One of the great things about America is that we provide for civic identities exclusive of an ethnic identity. This is a nation of immigrants not only because people have come here from many places and many walks of life, but also because people are supposed to be welcome here regardless of where they came from, and should they choose to celebrate their heritage, they can, if they choose to forget their pasts, that is also acceptable. In a sense, our political membership is derived from many sources, including our ability to understand and preserve a dynamic legal system.

Ethnic nationalism, on the other hand, is harder to define. It is a way of defining the nation by aligning a specific cultural heritage of a defined ethnicity. For this reason, ethnic nationalism is seen as a thing you can pass on as an inheritance, through blood or through some formal, ritualized association. Already, it's very difficult to understand the distinction between civic nationalism and ethnic nationalism, because the cultural heritage of abiding by the law is itself ethnic. If you are having difficulty finding a solid line between the two, that's a good thing. It demonstrates that there is still a healthy ambiguity between our sense of belonging and the system of laws that provides us the ability to wrestle with our ambiguous origins and the cultural heritage that allows us to both celebrate and resist who we are and how we belong. However, Arizona is using the law itself as a vehicle that presumes that it is capable of defining an ethnicity, which it neither can nor should do. SB1070 exploits a sense of civic nationalism by assuming that we can determine that status of citizenship based on "reasonable suspicion" which necessarily must take into account ethnic features, thus drawing a dangerous line between the ethnic and the civic. But HB2281 goes a step further by formally privileging how one is supposed to react to particular histories or cultural features. The sum of the two bills arrogates that you can fully define an ethnicity, and just as ambiguously as Arizona claims to be able to identify what an illegal immigrant looks like, it also now claims have the ability to explain how an ethnicity produces resentment among others. How does one legislate a feeling? And why would you want to, especially when resentment isn't necessarily a bad thing? I don't have to be Black to resent the United State's legacy of slavery, nor do I have to accept the logical counterpoint to the bill - that I must feel good about my own history or the history being presented to me. That is a terrifying proposition by itself.

I happen to think that it's a good thing to have ambiguous cultural precepts, and it's important to think critically about what it is we call a "common heritage" any time we attempt to use that kind of language. I am not defending those who espouse hatred or who utilize the history of oppression in this country to motivate a sense of self-righteousness or moral superiority based on historical grievances, even when those grievances are some that I find compelling. Arizona State Superintendent Tom Horne, who has lobbied for this bill for several years, claims HB2281 was necessary because ethnic studies programs were producing a sense of "ethnic chauvinism." This seems to be a response to a form of political rhetoric that most people, regardless of ethnicity, find distasteful. Had Tom Horne spoken out as a meaningful interlocutor in a debate against those who, even with the best of intentions, are steeped in the ideologies of their own version of history, I would not find myself writing this article. In fact, I might find myself sympathetic to some of those concerns. Instead, Arizona showed the poverty of its own ability to discuss issues of race, ethnicity, and cultural identity by forcing the law to function as its means of articulation. It shouldn't matter that ethnic studies programs in schools should be a good thing, because they could be used to create access to underappreciated histories, to address cultural politics with more robust materials, and to engender a sense of critical thinking among each of our children, regardless of perceived ethnicities and backgrounds. To root them out with the law as your tool is tyranny. It is what Franco did to the Catalan and the Basque in Spain; it is what Stalin did to the Old Believers in rural Russia, and it is what Hitler did to the Jews and the Roma in Europe. It is the sort of thing that happens today in Myanmar and Darfur, between the Turks and the Kurds, and the Chinese and the Tibetans. I keep repeating to myself to no avail - "it can't happen here. It can't happen here." But Arizona has demonstrated that it can, and it has.

Simply put, HB 2281 is a bill that violates its own principle, and is the very definition of hypocrisy. I can't think of a recent law that produces more resentment delineated along lines of ethnicity than HB2281. By fracturing civic and ethnic nationalism in the way that Arizona has done, they have revealed the poverty of their own thinking, and they encourage a nation of laws to engage in a system that cannibalizes itself.

Effectively, Arizona's recent behavior has highlighted the emergence of a new form of Solomon's Dilemma. In order to defend the lawmaking process from "ethnic chauvinism," it must walk its most horrific contradictions, acting more chauvinistic and engendering more resentment than it can possibly imagine. We need to have a more rigorous discussion about how our legislators, out of fear, anger, and ignorance, have violent intentions toward not only citizens and immigrants alike, but also to the structures that provide for basic governance. The worst tyrants in history have acted under the color of law. If indeed we are a nation of laws, it follows that our civic duty is to defend not only the laws that are in place, but the process that allows one to make good laws, based on values that can have critical weight without having to abuse our ability to make laws and to govern. There is a profound difference between law and justice, and justice is not always within the purview of the law. That is why discussions, free dialogue, and cultural ambiguity are all virtuous, because they force us to think, and call me crazy, but humility and the openness to thought is the very element of justice that we fail to produce when we hastily and absurdly use the law as a cudgel as Arizona has.