Private: Immigration in the Shadow of Dred Scott

This post is part of an ACSblog symposium in honor of the unveiling of the Martin Luther King Jr. National Memorial. The author, Lucas Guttentag, teaches at Yale Law School, where he is Robina Foundation Distinguished Senior Fellow and Senior Research Scholar.  He also serves as senior counsel to the Immigrants’ Rights Project of the American Civil Liberties Union Foundation, and was the project’s founding director until 2011.  

More than fifty years ago Dr. Martin Luther King Jr. heroically battled segregation and built a coalition of conscience to change our society and its laws. Today, a new struggle is being fought in many of the same places. Arizona, which famously refused to recognize Martin Luther King Day as a holiday, and Alabama, home of the Selma march and Dr. King’s “Letters from a Birmingham Jail,” today defend the most punitive anti-immigrant state laws in the country. 

Under the banner of regulating immigration, these laws would institute a new system of discrimination.  They would encourage – if not compel – racial and ethnic profiling, prohibit offering transportation and housing to undocumented immigrants, impose state punishment for immigration-registration violations, and – under the Alabama law – require  schools to conduct immigration checks on students and their parents in a transparent attempt to deny children their constitutional right to public education. This virtual barricading of Alabama’s public schools by state officials is a grim reminder of earlier refusals to provide equal education for all.

It is telling – and deserves high praise – that the Obama Justice Department has joined Alabama’s religious leaders and a coalition of civil rights groups in suing to stop the Alabama law as it did the earlier Arizona SB1070 statute.

To be sure, immigration is a complex subject. But falling prey to superficial responses that exacerbate discrimination, target all who look or sound “foreign,” and cater to those who fear changing demographics or new immigrants is not the answer. Though sadly, it is nothing new and as much a part of our history as the glorious Statue of Liberty. For example, earlier hostility against Chinese immigrants in California led to racist state and local laws, including the infamous San Francisco anti-Chinese laundry ordinance that was struck down by the Supreme Court in 1886.

But easily overlooked in the current controversy over state anti-immigrant laws is the even more fundamental fact that federal immigration laws and practices routinely deny basic constitutional protections to non-citizens in a system of mass arrest, detention and deportation. 

Immigrants who have lived in the U.S. without incident for years or decades are routinely deported without legal representation, are subjected to proceedings where unconstitutionally obtained evidence is permitted, and can be detained for years without a hearing while their cases drag on. All this is possible because basic constitutional rules do not apply to the deportation system: there is no right to appointed counsel, evidence obtained in violation of Fourth Amendment may be used, and incarceration without bail is allowed. The Obama administration is not only vigorously defending these legal positions but also undertaking the most massive deportations in memory. 

Constitutional safeguards that we take for granted do not protect immigrants because the rights of non-citizens are based on doctrines originating in the era of Dred Scott and Plessy v. Ferguson where racism was sanctified and discrimination endorsed. The foundational cases establishing today’s modern constitutional framework for immigrants are still the so-called Chinese Exclusion Cases and those that followed from the 1890’s and early 1900’s. In those decisions, the Supreme Court denied core constitutional rights and upheld federal laws allowing immigrants to be targeted based on race, expelling those unable to produce a “credible” (i.e., “white”) witness in their defense, and denying protection against summary expulsion because deportation was determined not to be “punishment.” 

Fifty years later, after Brown v. Board of Education rejected constitutional acceptance of segregation and overturned Plessy, the Supreme Court should have abandoned the Chinese Exclusion Cases as decisions of a discredited bygone era. Instead, the Court reaffirmed them in Cold War cases relying on – among other sources – a modern nadir, namely Korematsu and its approval of Japanese-American internment.  As a result, today’s struggle for immigrants’ rights must undo entrenched legal doctrine still grounded in precedents that have been renounced in every other context. 

What would a system that fulfills the Constitution’s specific promise guaranteeing due process and equal protection to every person look like? For starters, the courts would recognize that summary expulsion violates due process, that detention without a hearing is unconstitutional, that every person in deportation proceedings is entitled to a lawyer, that illegally seized evidence must be barred, and that judicial review of arbitrary administrative decision-making lies at the heart of the rule of law. 

The abuse and vulnerability suffered by undocumented immigrants can never be equated with the sin of slavery or the horror of Jim Crow. Nor dare we diminish our obligation to the huge unfinished task of achieving true and complete racial equality. But the legal doctrines that deny immigrants fundamental constitutional protections constitute another enduring consequence of our past. To eradicate that stain is a part of our nation’s great continuing civil rights struggle. 

As we celebrate a memorial to the life and vision of Martin Luther King, who fought a far more entrenched system of laws and against far greater odds, it is especially fitting to reject the legal legacy of official discrimination and to recommit ourselves to bringing immigrants’ rights into the 21^st century.  Dr. King’s call for equality, democracy, hope and love recognizes the shared humanity of all people and compels a constitutional foundation equal to that vision.  

Civil rights, Constitutional Interpretation, Criminal Justice, Equality and Liberty, Immigration, Racial Justice, Supreme Court