Daniel Denvir: Welcome to The Dig, a podcast from Jacobin Magazine. My name is Daniel Denvir and I’m broadcasting from Providence, Rhode Island. Typically, we think about migration as immigration: people crossing international borders from one nation state to another. And for the past half century in the United States, we have tended to think about that immigration in a binary way: legal immigration versus illegal immigration. But to understand the origins of the immigration politics in general and the criminalization of Mexican immigrants in particular, that have become the core of the Trump presidency and of conservatism as a whole, we must explode these categories, identify their origins, and analyze the history that preceded them. Nativist arguments are often made by reference to people’s own forbearers “coming the right way.” But for much of American history, “coming the right way” simply meant showing up as a white person from the colonial period through the early 1920s.
Immigration was basically open for white people––white people who were needed to settle an expanding nation by holding dispossessed Native land and to labor in the industrial armies of an ascendant capitalist empire. Indeed, for much of that history the major dividing line wasn’t between native-born citizens and immigrants at all, but rather, between settlers and colonized populations––subjugated peoples who were either excluded and expelled, or subjugated as low-caste workers consigned to the hardest and most degraded labor and denied basic political rights. So to understand Trump and his “border crisis,” we need to rethink American history using different terms and categories than the ones that the mainstream immigration debate provides us with. We must look at the politics around international immigration as part of a broader set of policies and ideologies governing the movement of people based on where they were fixed by American capitalism’s racialized labor caste system and imperial designs. In other words, immigration can’t be understood apart from policies and ideologies that sought, amongst other things, to provisionally synthesize the contradictory realities of a racist and brutally exploitative political economic order that constantly required the presence of nonwhites.
There’s a lot more to discuss, but I’ll save that for the interview, which is with Aziz Rana, an all-star returning Dig guest. Here’s Aziz Rana, a professor of law at Cornell Law School and the author of the book The Two Faces of American Freedom, and the forthcoming book Rise of the Constitution. His work focuses on how shifting notions of race, citizenship, and empire have shaped legal and political identity since the American founding.
DD: Aziz Rana, returning champion, welcome back to The Dig.
Aziz Rana: Thanks for having me back. Really looking forward to this.
DD: The place I think we need to start a discussion of American immigration politics is within a framework that you write a lot about, which is that of colonial settlement and settler colonialism. This country has, for most of its history, been a project of demographic engineering. We can look back from the moment of British colonization, through the first naturalization law passed shortly after the Revolution, through a system of slavery that made forced African migrants into unfree laborers, through the settlement of the West, which was methodically undertaken to ensure overwhelming white majorities, through Chinese and Asian exclusion stretching from the 1880s through the first half of the 20th century, and through 1965, when a law was finally passed that ended a system that since the twenties had nakedly restricted immigration from outside of northern and western Europe. And those are just some of the explicitly racist policies. So my question is, to frame this interview, if you could explain the ideological and political economic role of white settlement in the formation of the US as a country and how that should inform the way we think about immigration politics.
AR: As a way of getting into the question that you asked, I think it’d be really useful to lay out how most people tend to think about immigration politics and the way that it’s presented in the news or in regular conversation. The idea is that immigration is really just a question of the border. It’s like, people appear. They seem to appear magically at the border, and they want to have access to the country because of various kinds of economic needs, and then the country has to make decisions about whether or not to allow people in, including based on judgments about threat or safety. And then this issue about the border, which is something that is viewed as its own separate domain, that it just happens, it seems to happen out of thin air, is also distinguished from the question about what rights should be afforded to people that are non-citizens. And the thought there is that states are organized just, you know, seemingly naturally, on a distinction between citizens and non-citizen. Citizens are part of a democratic community, they get various kinds of protections and rights and those protections and rights are not appropriately provided to non-citizens. And that whole framing, I think, really misses the fundamental impulse behind American migration policy, really, from the very earliest days of North American colonization, so even before independence. Immigration is part of a much more complicated story of population control, and population management, and the ways in which both control and management were really meant to facilitate settlement out West, and the expansion of a very particular vision of national identity. And so it’s closely tied to domestic colonization, to the way that the US is located in global structures of empire, and also to the types of economic organization, typically the rise of modern industrial capitalism, that went hand in hand with these projects of settlement. And so if you just extract immigration policy from that and just read it as a story of the border that’s not bound to these much thicker, deeper relationships, then you’re essentially missing the stakes of the conversation today.
DD: I want to ask a theoretical question before we get into a lot of historical specifics, which is do we need to stop thinking about immigration politics narrowly as such and instead conceptualize of immigration as a legal and ideological subset of a population politics? I don’t know if that’s the right term, but something along those lines––governing race and place, that functions by creating castes and ideologies that legitimate and synthesize various capitalist modes of accumulation on the one hand, with particular nation state projects on the other? Do you think that this is the sort of framework we need to use, or would you put it another way?
AR: It’s really important to think of what we currently talk about as immigration, as really a story of the demographic management of populations. Who counts as an internal member, what rights are accorded to those that are insiders, and then what kind of treatments face to those that are viewed as “unfit” in various ways, either to remain, or that find themselves facing various kinds of subordinated status. This means that, in a sense, some of the best comparisons are––or continuities that we’d see in terms of thinking about what we today refer to as immigration policy––would be with the treatment of Native peoples in the 19th century, the treatment of enslaved African persons, the structure of policy towards Mexicans that didn’t migrate to the US but that found themselves now as part of the US state because of the outcomes of the Mexican-American War, and that these continuities tell us actually a lot more about the shape of US practices towards different kinds of different populations and movement, than just a simple focus on what’s happening at the border and what kinds of “protections” were needed there.
DD: One last theoretical point before we move on to the history, it seems one key thing that we need to do to accomplish this more comprehensive framework within which immigration is a subset, or the way certain types of population politics appear to us because of their political expression, it seems like one thing we need to do is to move beyond methodological nationalism that takes the boundaries of the nation state as a given and thus treats international migration as this wholly distinct thing, both from domestic migration and, more generally, from the politics of race and class.
AR: Absolutely. So that mythological nationalism is built on a particular kind of post-World War II order at the international level for thinking about the nation states, which is, the world is a product of formally equal states that enjoy various kinds of international guarantees and rights, and that provide a set of protections to their own citizens, and to the extent that their citizens are in other states, those are essentially people that are more or less out of place, and have differential kinds of relationships with the states that they’re visiting or trying to migrate to. The problem with that way of thinking about the world is sort of twofold. One is that it fundamentally obscures the way in which the formal equality of these nation states at the international level is belied by systematic forms of economic and political inequality. So, being a citizen in the United States means something that’s fundamentally different than being a citizen in Kenya, where my father’s family is from. And that has to do with the nature of the global economic and political order writ large, and in particular, it has to do with the long afterlife of the imperial order that preceded our present post-1945 structure, which is the extent to which histories of colonization and empire shape the terms of membership. And it also obscures the way in which the US isn’t just like any other state. The US isn’t even “the first nation among equals.” That, since 1945, it has been the dominant global power, that we live in an era that’s best defined as an era of Pax Americana. It might be retreating in various ways, but it shapes the terms of this larger economic order and it means that just thinking of each state as equal, and that citizens from one state somehow are inexplicably attempting to enter other states, basically ignores the reasons for circulation that shape this global order. And we can get into some of the specifics about American foreign policy in particular, but I think at a theoretical level, the point is to essentially explode the idea that these are all just equal states, and instead to recognize the extent to which what we have is an order that emerges out of the collapse of the old empires and that’s shaped by the dominant global position of the US and that imposes very clear structural inequalities that determine how movement operates and in particular, allows the free flow of capital from the Global North, and the US especially, into the Global South, and that inhibits or constrains the free flow of labor in response.
DD: Okay. We’ve laid a pretty solid theoretical foundation, I think. Let’s turn back to some of the history, starting after the Revolution. The American project required westward conquest, which in turn, required both Native removal and new settlers, to ensure a European majority on the land. The flipside of that expansion conquest was that it provided an escape valve from eastern inequality, which gave whites the settler promise of free labor tied into this measure of internal equality. And I think it’s important to emphasize that white settlers weren’t just allowed in. They were recruited. And white immigrants in the 19th century were even widely allowed to vote before they had naturalized. They were in essence deemed Americans overnight because they were white settlers, which was, definitionally, what an American was. Can you explain how this division between settlers and colonized people, rather than one between Natives and immigrants, dominated the United States and what role it played in the country’s development?
AR: You know, this covers a bit of ground from stuff that we’ve discussed in previous conversations, so my apologies to listeners if this sounds a touch familiar. But the best way to think of the early American project, and really this is from the 17th century to the early 20th century, is as a sustained experiment in what I call settler empire. And this experiment was organized around a variety of fairly clear principles. So you had Anglo colonists that came to North America, and they carried with them a radicalized version of the republican tradition. In other words, they understood free political and economic relationships as built around having control over one’s productive life. So owning land, having a shop of one’s own, and having that tied to direct political participation. So freedom as self-rule is something that was thick. But they also saw the possibility of being able to have this kind of project as requiring a second feature, which is territorial expansion. There needed to be enough land that was broadly available to those that were insider settlers to be able to actually enjoy something like free self-rule. And then, that led to two other key elements. The third was that there was also an understanding that not all forms of work are free. Societies necessarily, and especially agricultural societies, require degraded or hard forms of labor that are not compatible with the position of economic independence. And the way that settlers solved this problem starting, really, in the mid-17th century, was through African slavery. So the idea is that you have communities that are forced or compelled to engage in the most subordinated forms of work, and then you justify that subordination precisely in racial, and to a lesser extent, religious terms as well. And then this led to a fourth point, which was really key to the project of American settlerism and territorial settlement, which was that, pretty soon, in the 17th century, English state policies start to shift. So initially, the crown is interested, actually, in sending people to the colonies, because they are worried about overpopulation, various kinds of economic and political threats. But by the time we get to the second half of the 17th century, England actually wants to have its own working class stay, to be able to build the industrial economy there. And so you have settlers in North America that have a significant demographic need, and the demographic need is that you need to be able to actually populate new territory that you’re taking over, in order for the project to be able to sustain itself. And so what emerges, and what you see, really, through the 19th century, is a surprisingly open policy to foreigners coming from abroad, but in particular, to foreigners that are deemed coethnics, sharing a similar cultural and ethical project and territorial expansion. And so initially this is Protestants. So you have French Huguenots or other kinds of Protestants, from especially Western Europe, but over time, it becomes a larger category of European or white. And we can talk a little bit about what that means. And then there are a series of policies that end up getting implemented to induce both migration from abroad and also westward settlement. So these are some that you’ve already mentioned: you have the provision of easy naturalization processes during the colonial period. You have the provision of noncitizen voting. So voting that’s pegged to residency during the colonial period. And these things end up carrying over after independence. So the first naturalization laws, 1802, say that for “free white men,” you can naturalize as a US citizen after five years, as long as three years before the naturalization you assert your intent to naturalize, and then you have a variety of different states and territories that use that as a basis for providing European noncitizens with voting rights, where they say that if you assert your intent to naturalize, whether or not you ever actually naturalize as a US citizen, that you can enjoy voting rights. And then that goes hand in hand with access to western land grants and essentially the conditions, both economic and political, of enjoying something like free republican citizenship. And it also has all sorts of kind of surprising elements that we might not initially think of. For example, some of the very first states and territories that provide voting rights for women are states and territories in the West in the late 19th century. And the reason is, if you’re committed to a project of demographic settlement, then you actually need to have families. And this becomes very much a politics of not just population control and management, but reproductive management. And so you’re providing voting rights to women to induce white women to move to western territories and land, to be able to facilitate a politics of settlement. And the thing that ties all of this together, for what amounts to a three century period, is what you noted in the beginning. We tend to think of politics as organized between a distinction between citizen and alien, or, during the monarchical period, between the subject of a monarchy and an alien. And instead, what defined the long array of American politics was a distinction between settler and non-settler. And this is really significant because if you take most of the monarchies on the continent during the same era, they had really restrictive inheritance rights, land ownership rights, for noncitizens, based on the thought that, well, wait a second, you don’t want noncitizens to be able to inherit or to own land in your own territory because that would be a foreign potentate, since they’re essentially the subject of a foreign king, having control within your own country. So it’s like a stalking Trojan Horse. But in the US, the thought is precisely the opposite, which is no, you actually want European migrants to come because they’re participating in what amounts to a racially defined project of settlement and control. And indeed, what’s way more important than citizenship status is whether or not the particular individual is ethically part of the project. And you can really see this play out in terms of the variety of treatment that’s instead subject to those that are viewed as on the outside, to the non-settlers.
DD: Such as we see with Indian removal and the debates over slavery, show the way that people who are geographically inside are still very much treated as outsiders in terms of the dominant caste of the settler project. And––
AR: I was just going to say, and just a note about this. So by the time we get to, let’s say, the mid or late 19th century, we could be talking––you know, we’ll talk about, I think, the status of the Chinese in a bit––but if you just look at enslaved African Americans as well as non-slave African Americans, Mexican Americans, and Native peoples, so these are all groups with long and very rich histories on the land. And yet, in distinct ways, they find themselves subject to what amounts to an extreme form of discretionary power that is a product of a kind of old, imperial, royal prerogative that is the form of essentially unlimited course of authority that those on the outside face and that applies in different ways. So you have enslaved persons that essentially are denied any meaningful rights, you have non-slave African Americans whose movement is very closely controlled. So if you’re a non-slave African American and you’re not a resident already, in a southern slave state you weren’t allowed entrance into the slave states. Non-slave African Americans weren’t allowed entrance into various western territories. So were explicitly excluded from the conditions of economic independence and incorporation through these land grants, that European migrants who had just arrived and had no connection to the land, immediately enjoy. And then you can say a similar thing about Mexicans after the Mexican-American War, where the Mexican-American War ends with a treaty that provides all Mexicans that are now on US territory with citizenship status. But the states, and California in particular, quickly move in to say that, well, unless you are white––if you are Mexican but not of white ancestry, then you don’t have voting rights. And Native peoples face their own distinct, but kind of parallel, structures of control, built around the reservation system, and then also systematic denials of voting rights and various other kinds of protections for those that are even formally included as citizens.
DD: And a quick interjection, Mexican Americans, even though they’re technically deemed white by the Treaty of Guadalupe, are subjected to Jim Crow-style segregation, brutal state terrorism in Texas, and, as you mentioned, land dispossession.
AR: Exactly. And the thing that’s really key is that the criteria of being a formal citizen is largely irrelevant to the rights that you actually end up enjoying. African Americans, at least at the state level, and we’ll spend some time talking about Dred Scott and what Dred Scott says about African American federal citizenship, but at the state level, African Americans that are not enslaved, formal citizens; Mexican Americans, formal citizens; Native peoples, oftentimes through congressional naturalization, formal citizens; and yet face systematic rights denials, because what’s actually more important is whether or not you’re seen as somebody that is a participant in the settler project. And that means that a European, in Europe, is in fact more of an American if they’re the kind of person that you want to induce to come and settle than a person that is a formal citizen here. And it also means that the way that these policies operate is through the inducement of bringing particular populations to the continent and then essentially balancing between two different kinds of impulses about non-settler groups that are really colonized subjects here. And one impulse is removal, and you see that through things like the Trail of Tears and Jackson’s policies, and another impulse is not removal but kind of sustained subordination, and subordination to provide something like a pliable labor supply. And you see that especially, for example, with enslaved African labor. But in both cases, managing who stays, who remains, and under what conditions, is the guiding framework that sort of constructs all of this.
DD: I want to make clear that this isn’t just a matter of a historical injustice in the 19th century that has passed. If we want to take seriously the idea that the politics of international immigration, on the one hand, and internal migration on the other, are interconnected parts of something bigger, and we want to look at how decisive the politics of Black migration have been, we can start with Black movement being controlled not only by slavery in the South but also fugitive slave acts and by multiple non-slave states barring the very entry of Black people entirely. And then, as you referred to, the Supreme Court’s Dred Scott decision denying Black citizenship, and then the threat of Black migration out of the South overwhelmingly shapes the debate over abolition, when colonization of slaves to Africa or elsewhere was widely held to be the only way that slavery could be ended. And then it doesn’t end there. The entirety of American history that follows through the present, arguably, in terms of the politics of the Black freedom struggle and of the Great Migration and the system of metropolitan segregation that was erected in response to the Great Migration and Black freedom struggle––these are the key events of American history up to now.
AR: One way of thinking about the past, to the extent that people are willing to recognize this particular kind of settler history, is to essentially divide the past between an era that existed, and then there’s a break, and instead what we have emerge in the 20th century is something like civic nationalism built on free and equal principles that undergird the market and liberal democratic politics. And so it’s essentially a move from an episode that might have previously occurred, to a completely different political order. And I think the key point is that rather than there being a break between a settler past and the civic national present, that these two are really deeply interconnected and they fold into one another throughout this whole period from the 17th century to the present. The kind of impulses that shape the basic terms of the American settler project persist. They persist in novel ways, but they nonetheless have really significant effects for ongoing policy, notions of national identity, and the types of debates that we see at the present. So like one thing that I’ll say, just about the Black migration that you noted, that highlights these continuities. So Chris Muller is a great sociologist that does stuff on mass incarceration. He notes that along with metropolitan segregation, the movement of African Americans north is also, in the period from the 1920s to the 1940s, the time that, in northern prisons, you start seeing, really, the disproportionate imprisonment of African Americans. It’s one of the significant prehistories of the modern kind of mass incarceration story and it’s for comparable reasons, which is, you have a new Black population and a Black population that’s understood by white elites in particular communities as a threat to their notions of identity and membership. And incarceration becomes a tool of managing what amounts to the Black body. That’s a story that we would never think of as an “immigration story.” But if you explode the focus on the border and you think of this as, how is it that different populations in movement end up being controlled and what shapes those forms of movement, then you can see, in lots of interesting ways, what we think of as the story of mass incarceration or the New Jim Crow have direct connections to how a cohesive state project is conceiving of who counts and who doesn’t.
DD: Thinking about nativism more broadly as this threat posed by people outside of the dominant caste, and you write that what settlers viewed as a central danger was that the government would treat settler society insiders in the brutal and subjugating manner that was ostensibly reserved for outsiders, which goes some way towards explaining the Declaration of Independence’s condemnation of King George for having “excited domestic insurrections amongst us and endeavoured to bring on the inhabitants of our frontiers the merciless Indian savages.”
AR: The part of the Declaration that we tend not to talk about.
DD: Though it’s published on the back of the New York Times every July 4th. And settlers, you write, contended that that Britain had relegated them to what they consistently described as a condition of slavery. What does it reveal that white Americans have so consistently looked to subordinated people as a metaphor through which to interpret their own fears of their own political-economic subjugation?
AR: The heart of 17th century settler ideology and legal frameworks was a division between again, settlers and non-settlers, and the thought is that for those that are included as settlers, the benefit is supposed to be this really rich account of freedom, of self-rule. And that means that the way that political life is meant to be organized is through an intricate system of checks and balances, like all of the stuff that we tend to talk about, for example, when we talk about constitutional liberty and protections. But the thought is that for those that are on the outside, that it is appropriate to exercise what I, in the book, call an imperial prerogative, because of its continuities with discretionary royal power, to shape both the differential terms of subjectship that those communities face, but also to just mete out various forms of violence and coercion, from removal to imprisonment, you name it. The worry that you see articulated during the revolutionary period that becomes a kind of continuous refrain of American politics is that it’s the English Empire that’s treating its rightful subjects, so Anglo colonists, as if they’re colonized, dependent subjects. As if they’re non-settlers. That they’re using that royal prerogative in ways that are inappropriate and ignoring the kinds of checks and limitations that are supposed to apply to insiders. And one of the ways that they’re doing this is––this is the reference to enslaved persons and to Native Americans in the Declaration of Independence––is by potentially challenging, in limited ways, whether or not you will have additional rights or protections to those that are enslaved, treating Native populations potentially as also English subjects, and so attempting to balance the interests between settlers and Native populations. I don’t want to suggest that the British Empire is behaving in ways that we should, like, applaud. So this is an empire that’s dealing with lots of different complicated population centers and is attempting to essentially maintain order through a project of balance, but that doesn’t mean that it’s in any way committed to the rights protection of subordinated groups. But that’s a worry that motivates the Revolution. And it’s a worry that persists in the US, and it persists in the US in a sense because there are essentially two ways that republican freedom can be made broadly accessible. One way is over time, as a country becomes more industrialized, by actually transforming the economic institutions of the place, ensuring that those economic institutions are actually being controlled by the bulk of the people on the ground. And another way is through the project of expansion west, which is a constant safety valve for the kinds of internal white class tensions that emerge. The American story is by and large the systematic failure to use energetic government power to control new forms of economic hierarchy that emerge, and because expansion west, and what you can think of as various forms of Native expropriation, a strong color line between whites and African Americans––all of these are the ways that end up sustaining what you can imagine as white, economic populism because these predominate. Then it becomes increasingly clear to more and more white citizens that if they find their own rights being infringed, what that actually looks like in practice is being treated like the types of communities that are meant to serve the state, rather than the states meant to actually aid or enhance. And those arguments just come up over and over and over again.
DD: You can look at Southern massive resistance to integration, which displaces the reality of Southern white despotism over Southern Black people as some sort of federal tyranny; or tax revolts in the 1970s sparked by what were seen as transfers of wealth from the white middle class to subordinate groups; and opposition to school and housing integration, which was seen as this judicial imposition on the properties of white middle class people; Nixon’s Silent Majority; the Reagan Revolution; the Tea Party, quite explicitly a tax revolt. And now, with Trump’s maximalist, white national decline grievance politics––and nativism, I think, is always at the central of this ideology, because it posits the idea that the demos, the very underpinning of the democratic project itself, is being invaded. And you look at the rhetoric around Mexican criminality and demands for citizenship echoing the Declaration of Independence’s description of Native violence.
AR: You know, what I’d say that’s sort of connected to this long story is that one of the things that happens pretty early on in the new republic is that energetic government action, government power, especially energetic government power from the federal government, is viewed as an assault on the kind of local prerogatives of communities on the ground. And it’s also viewed as the kind of thing that’s only supposed to be applied to those that are outsiders, and that a lot of how notions of freedom and self-rule end up playing out is through claims about policing having this imperial prerogative, that’s being asserted by the federal government, apply toward local groups. And so it could be everything from like, it’s that federal government’s prerogative that’s limiting settler slaveholding rights out in the territories that somebody like Taney is so upset about during Dred Scott. But you can see it play out continuously, and it slowly also then becomes a kind of justification both for, if the state is asserting this violent prerogative and it has to be confronted, and that whenever it’s being applied, it’s treating you, as a white insider, as if you’re an excluded outsider population, then the only real place of free choice is through market relations, and that to the extent that your freedom is tied to your market choices, that it has to constantly be pushing back against what’s seen as these impositions from the government. So it’s a kind of continuous theme, so that there’s been debates about the American state, about like, why is it that Americans have this anti-statist “impulse,” or why is that such a strong and powerful strain? And I don’t think it can be understood without recognizing how generations of Americans came to see who should be subject to various forms of coercive power, and then viewing particularly the federal government’s actions through the lens of who should be free from various kinds of imposition and who’s actually rightly subject to it. And so I think you’re absolutely right to see that as something that’s continuous all the way through the Tea Party and the contemporary debates, for example, about standoffs in Oregon and the Michigan militia, and on and on and on and on.
DD: I want to shift gears and turn to opposition to Chinese migration in the late 19th century, which is really the inception of formal immigration politics. How did the closing of the western frontier, which was accomplished, of course, in significant part through Chinese labor on the transcontinental railroad, help facilitate the rise of Asian exclusion? And how was it that the Chinese were simultaneously viewed as an economic, cultural, geopolitical, and political threat?
AR: Starting with the California Gold Rush in the mid-19th century, over the course of the second half of the 19th century, something in the neighborhood of 250,000 Chinese migrants come to the US. By the time we get to the 1880s, like 90% are in the ten westernmost states and territories, two-thirds are in California. Just like with many populations, Chinese migrants come for various reasons, oftentimes tied to economic opportunity, and there are clear inducements on the part of both private actors and state actors to bring these populations over in order to be able to complete some of the economic settlement projects. But what Chinese migrants face almost immediately is this essential backlash about whether or not you can properly include Chinese as free citizens. And you know, even before the closing of the frontier, the fairly systematic answer becomes no. And what you see emerging in the last 20, 30 years of the 19th century is a new federal deportation system. That’s really the first time we have federal deportations at all that apply exclusively to Chinese, and it’s part of a kind of steady or slow roll of policies. So the first thing that happens is that during Reconstruction, you have a move away from 1802’s naturalization policy that said that you can only naturalize free whites as citizens, and you have Radical Republicans like Charles Sumner that say, well, everybody, regardless of their own background, should be able to be naturalized as a US citizen. But instead, the naturalization policy focuses exclusively on previously-enslaved African persons. And the reason why is because you already have a kind of groundswell of opposition to including those that are Chinese, and then, more broadly, Asian migrants find themselves in a category “aliens ineligible to naturalize.” So they’re non-citizens that can never become formal citizens. And then you have the very first federal deportation laws, something called The Page Act. The Page Act is meant to limit entrance and then to be able to remove people that are associated with criminality and prostitution, but really what it ends up targeting are Chinese women.
DD: And to pause you really quickly there, why is it that this heavily gendered framework is the first effort at immigration restriction––formal immigration restriction, period, and Chinese exclusion in particular? Was it aiming to keep the Chinese community from reproducing itself by ensuring that it remained overwhelmingly male?
AR: Absolutely. So between 1875 and by the time we get to like 1890, so in a period of 15 to 20 years, the Chinese population goes from one where there’s a substantial or sizable female population to 27:1 male. And the whole point is to make it impossible for Chinese people to be able to sustain a way of life in the US, to be able to reproduce, to establish families, develop communities, to become fully part, in a sense, of the land and territory. And you can see this as a really interesting inverse to what’s happening at the same time, that I mentioned earlier, which is, all of these various policies that are trying to induce or convince white women settlers to move from the East to the very same territories, including through providing white women voting rights, but there’s a number of different inducements. And the whole thought is that you’re trying to construct a white family and that through control of hearth and home, you can actually both demographically purify the area, but also have the kind of ethically and ethnically appropriate community to engage in settlement politics.
DD: And that’s a reminder that immigration politics in particular and race and place politics more generally are always reproductive politics. And there are just innumerable examples of this, from violently anti-miscegenation ideology being the cornerstone of both slavery and Jim Crow, as economic and social institutions, to today, the long-running nativist alarm over Latina fertility and so-called anchor babies.
AR: Yeah, I mean, you can see things like the Page Act as the prehistory of the obsession with anchor babies. It’s about, you know, how is it that you demographically purify the republic, and the extent to which you’re using ethnic markers as judgments about who can appropriately enjoy the benefits of free citizenship. And you know I’d say that this is not an American story alone. The use of these kinds of reproductive policies as a way of shaping demography we see globally too. And then so first, you have aliens ineligible to naturalize, so this is the experience of Chinese immigrants.
DD: And that’s 1870.
AR: Yeah, so that’s 1870, where the naturalization laws are not written to be universal. Then 1875, you have the Page Act. And then you have the Chinese exclusion laws in 1882 and then 1892. And what these do is they bar, entirely, Chinese labor. And then on top of it, what you end up having are alien land laws. These were laws that were passed at the state level. That if you were an alien ineligible to naturalize, so basically this is targeting Chinese––
DD: And then Japanese––
AR: Yeah. Chinese and Japanese. That you could not own land. And this is a form, just like the treatment of non-slave African Americans and other communities that we’ve discussed in the antebellum period, of essentially disinvesting, disinheriting a population from access to the conditions of economic and political independence.
DD: Which is this ideologically self-serving circular logic, by saying Chinese and Japanese people are not capable of free citizenship, and free citizenship requires economic independence, and we are denying you the basis of that economic independence.
AR: Yeah. I mean, this is the same story that you see repeated over and over again, that you saw with with enslaved African persons. That you need certain populations to engage in degraded or hard forms of work. And that’s, I think, the continuity between enslaved African Americans and Chinese, that we’re engaging in essential work for the construction of the American West. But, you know, then the statement that the reason why we’ve consigned you to this hard work is precisely because you’re unfit for free forms of labor. And then the story with what happens with the Chinese population are, in a sense, a kind of uneasy truce between two different kinds of countervailing pressures. One is, you know, a long-standing labor nativism that we can get to. So the California Workingmen’s Party is a strong backer of Chinese exclusion. So the desire to forcibly remove these populations because they’re understood as a threat to white labor. And then, you know, a business community that wants an industrial reserve army that can both depress white wages, but that can also be used pliably to serve various kinds of corporate interests and territorial expansion out West, but wants to ensure that these populations do not have rights that are meaningful. And so you have this steady balance of a population that’s present, but that’s limited, but that’s essentially denied all the conditions of free citizenship.
DD: Something that you have mentioned a few times in recent minutes of this interview is how Reconstruction era politics surrounding Asian exclusion and modest Black incorporation intersected. You mentioned the 1870 legislation which extended the right to naturalize to Black people but denied it to Asians. And then there is Justice Harlan’s famous lonely dissent in the Supreme Court’s 1896 Plessy v. Ferguson decision, which legalized so-called separate but equal treatment of Black Americans. And Harlan makes a point of favorably comparing Black Americans to disparage Chinese and I’m just going to quote a brief passage from it. “There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the Black race in Louisiana, many of whom, perhaps, risk their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the state and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race.” What does this differential way that two different subordinate groups were treated during this period reveal about how different strands of late 19th century settlerism managed a system of incorporation and exclusion that was changing so much in the wake of slavery’s destruction and also amidst the closing of the frontier and the rise of industrial capitalism?
AR: It’s a remarkable passage and every year when I teach Plessy vs. Ferguson in constitutional law and students read that Harlan dissent, they’re really thrown by those passages, because the way that the dissent is generally treated in our public conversations is, you know, Harlan is the lone voice of Reconstruction here, where he is essentially saying that, well, wait a second, what is it that the Civil War was supposed to be about? The Civil War was not just about ending formal slavery, but it was ending what he, in many opinions, called all of the badges of servitude. And that included a systematic structure of racial subordination, and he views the emergence of a new system of Jim Crow as a continuation of these badges of servitude. So he has this very stirring language about the Constitution’s colorblindness and the importance of thinking of African Americans as full citizens. What he’s highlighting here is a really interesting thing, which is, throughout much of American life, whiteness has a kind of property value; there’s a property interest and a set of benefits that come from being white. He’s saying, well, the whole thing about the Civil War is that Blackness has a kind of property value too, that African Americans fought and died on the side of the Union, and for that reason, to have whites and Blacks separated in these coach cars is a disservice to the point of the Civil War; indeed, to have a situation where you have the children and ex-Confederates lording it over a population that fought for the country, as opposed to behaved treasonously, is like, unacceptable. But––and this is the big “but”––he’s navigating the late 19th century to say that African Americans should be settlers, too. That’s the heart of his argument. But if African-Americans should be settlers too, that doesn’t mean that everybody’s included. There are still communities that are culturally unfit for full membership, and the community that he has in mind, the Chinese. And he’s using the juxtaposition as a kind of rhetorical point for a white audience. The white audience sees Chinese immigrants as so culturally distinct, so dissimilar, not sharing any of the religious or ethnic background in free citizenship. And yet they don’t necessarily face, according to this law, though they did according to a variety of other laws, systems of segregation. Like, how is it acceptable to treat African Americans worse than we’re treating Chinese? And it speaks to something you asked earlier, which is that for an overlapping set of constituencies, there was the view of the Chinese as an unassimilated danger. So that they were a danger––and this ends up including Japanese as well––they’re a danger to some members of the white labor community because of the economic challenge and really the competition over wage-earning jobs, especially as the frontier closes and industrialization becomes more and more intense, they’re viewed as a geostrategic threat because of the sense that China is this powerful empire, that it’s emerging and rising in the Pacific and especially at a time in which you have growing non-white political assertiveness, and that the US is a white outpost in the non-white world, and so the challenge of a non-white empire is particularly pronounced. There are cultural threats because of the thought that they’re not grounded in the same kinds of Christian traditions that even Catholics are that provide a spiritual formation for free citizenship. And that all of these things together mean that you cannot include Chinese as equals. And the best way to understand what’s going on here, and how this plays out, is actually by comparing this case, Plessy vs. Ferguson and Harlan’s opinion, to another case that––usually the two aren’t linked. And that’s a case called Wong Kim Ark, from 1898. And Wong Kim Ark is a case about a Chinese person that is born in the US and so enjoys, under the 14th Amendment, birthright citizenship, and that is returning back to the States and is denied entrance at the border based on the thought that, well, actually, this person isn’t a US citizen––a claim that the person is in fact not a US citizen.
DD: Because their parents were not citizens. And Chinese.
AR: Yeah, because the parents were not citizens. And this ends up litigating the question about whether or not children of non-citizens in the US enjoy birthright citizenship status. And the majority of the court says yes. And the thing that’s really interesting about that case is that the court’s majority is the same as the Plessy majority, and Harlan is in dissent in both cases.
AR: He signs on to an opinion by another judge, named Fuller, which basically says, you cannot provide Chinese people with birthright citizenship precisely because of their cultural unfitness. And that, to him, citizenship means something, it has these substantive values, it brings with it a rich array of rights. The “him” here is Harlan. And so giving all of those rights to the children of Chinese immigrants is to essentially fundamentally compromise the racial composition of the country, and so the ethical composition.
DD: And tellingly, the majority opinion in this rare case that affirms any sorts of rights for Chinese Americans also believes that the basic framework of white citizenship would be challenged by not extending 14th Amendment protections to the children of Chinese citizens. They write, “to hold that the 14th Amendment of the Constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.” So there’s the shared logic in the majority opinion and the dissent.
AR: Yeah, absolutely. So that the majority thinks it’s essential to extend birthright citizenship to Chinese because to reject the principle of birthright citizenship would undermine, as you stated, the citizenship status of a vast array of European migrants. And the majority is still absolutely committed to the project of ensuring settlement by these communities. But then there’s a second thing, and this is in a way what the disagreement between the majority and the dissent ends up turning on, which is the majority is not concerned about providing birthright citizenship to Chinese because there’s no presumption that you have to provide extensive rights to people that are citizens.
AR: So consistent with what we’ve been describing is like, the central divide is between settler and non-settler rather than citizen and noncitizen.
DD: Yeah, these same people voted for Plessy, so they’re like, well, we could just have a caste system that subjugates them.
AR: Exactly. Their view is like, well, they can be formal citizens, but then the only people that have voting rights would be white. Those that enjoy birthright citizenship that are of European ethnic backgrounds. And so they’re perfectly comfortable with the idea, well, the solution to this is establishing a Jim Crow system for people of Chinese and Asian descent. Which is, in fact, what ends up happening out West. And in a way, the reason why this is an interesting moment is because, in a sense, both Harlan and Gray––those who write the majority opinion in all of these, in Wong Kim Ark, and even Brown, who writes the majority opinion in Plessy––all of these are folks that are still committed in a deep sense to the infrastructure of settler politics, but are disagreeing about how to navigate which populations fit where and whether or not the solution is essentially removal or subordination for the populations that don’t fit.
DD: And turning to the dissent, Fuller and Harlan argued that the “subject to the jurisdiction thereof” clause of the 14th Amendment couldn’t apply to the children of Chinese non-citizens born in the United States because Chinese people are bound to the Emperor “by every conception of duty and by every principle of their religion, of which filial piety is the first and greatest commandment.” Which meant they were “subject to a foreign power.” That’s revealing in a lot of ways. One is that it reveals how basically and fundamentally immigration politics are always thoroughly geopolitical. The dissenters here, like many opponents of Chinese migration, very much do see Chinese migrants as agents of the Emperor.
AR: Absolutely. So, just to do this as a gloss, if this was the end of the 18th century, that argument would be applied to which community? That would be applied to Catholics, and in particular, French Catholics. And this is the view of Quebec, for example. That Catholicism is a religion that requires your obedience to a pope. That means that you’re not actually capable of being a free citizen. End of the 19th, early 20th century, these arguments applying to Chinese and then they’re going to apply with increasing intensity to Japanese citizens and migrants as well.
DD: And the anti-Catholic iteration of that emerged in the mid-19th century, right before the Civil War as well, with the Know Nothings.
AR: Absolutely. So there are clearly these different moments. The end story of the treatment of Chinese and Japanese is the 1924 National Origins Act that essentially bans entirely migration from Asia. And then you have the Japanese internment that takes place in World War II, and then I’d say you have a similar set of arguments that get made about Muslim populations, Arab and Muslim populations, today. That there’s something inherent about Islam, like Islam is a religion of authoritarianism, it promotes various kinds of violent sympathies that mean that Muslim populations are on a kind of path to radicalization that makes them unable to participate fully as Americans. And indeed, the forms of things that we see as markers of good American citizenship––dissent, political participation––these are threatening when they come from Muslim communities and have to be criminalized through statutes like material support statutes. And this is why I focused on the ends of these centuries. Like what is it about the late 18th century, the first half of the 20th, the late 19th and the first half of the 20th century, with Chinese and Japanese citizens, and then Muslim populations today? These are all places, geopolitically, where American power is hot. In other words, these are central sites of conflict. And the thing that’s ultimately, in a way, making these communities especially dangerous at these specific moments in time have actually nothing to do with the internal characteristics of the community. Why is it that by the time we get to the mid and late 19th century there is, actually, despite Know Nothing efforts, a pretty steady incorporation of Catholics? You need those populations for the demographic settlement of the West and the geostrategic alignments shift. You can say the same thing about Chinese and Japanese migrants today, which is like, today, the story is that these are “model minorities,” with all of the attendant problems of that framing. But that’s because the site of American power has shifted in various ways. And then what is it about Muslim populations? Again, it has nothing to do with inherent characteristics of these populations; it has to do with, well, it’s the Middle East, and parts of Asia, that are precisely where American geostrategic power is most explicitly present as the effective regional hegemon. And you know, I think this is one of the things that’s pretty consistently missed, which is the story of the “assimilation” of any of these communities is never about, well, the community changed. They became Americanized. It’s always about, actually, the power asserted by the state shifted its gaze or focus in ways that made the population far less threatening in the terms that marked it in a specific moment in time.
DD: Yeah. That’s so important. There’s this consistent threat. You look at Samuel Huntington’s work on Mexican immigration and this idea that there’s something uniquely unassimilable about Mexican migrants to the United States, the idea that they’re forming a nation within the nation, which is such a common trope on the nativist right in recent decades. But it’s an entire projection of the lack of willingness to integrate and incorporate from the dominant classes in the state, that the dominant classes wield power through, projected onto the subordinate group.
AR: Yeah. Absolutely.
DD: There’s another, even weirder level to this, that is commonly believed on the right today, that Mexican migrants are engaged in what is described as a reconquista or reconquest of, at least, the American Southwest. And to me, this seems like a really revealing conspiracy theory, because it is Americans at the center of empire projecting their fear of imperial dominance onto the victims, the subordinate groups, within US empire. I don’t know if this is going too far, but you think it’s fair to say that one of anti-immigrant politics’ central functions is precisely to obscure American empire by fetishizing the immigrant symptoms of that empire?
AR: The thing that’s noteworthy about the story, about the relationship between the US and Mexico that we’ve already highlighted is, first, to the extent that there is a conquest, half of Mexican territory is taken from Mexico. And you have a population of individuals that become US citizens but are systematically denied the basic benefits of, in fact, being a citizen. And then what you end up having in the 20th century is the extensive effort, that’s a unified effort of both state and business, to attempt to essentially use migrant Mexican labor as a way of providing a new pliable labor supply that’s engaged in work under degraded conditions with limited rights. And you have this through various kinds of official programs like the bracero program, that operates in the mid-century that brought annually 200,000 people to work in the US, but then you also have lots of other formal and informal networks that actually make the border something much more of a fluid site of movement, where you have communities that exist and family networks that exist on both sides, dependent on where work is, and what the particular employment or labor pattern consists in. And that throughout this whole mid-20th century period, what ends up happening is that during periods of economic downturn, or white nativist backlash, because of concerns about ethnic or economic threat, that you have the state essentially come in and engage in incredibly violent acts of population control. So during the New Deal, you have hundreds of thousands of Mexicans, including former US citizens that are forced to go back across the border to the US, families broken and destroyed, people killed. You have operations that proceed in the context of the bracero program in the 40s, 50s, and 60s, and most famously, “Operation Wetback,” that forcibly removes, again, massive numbers of Mexicans across the border. All of this as the basic story of the first two-thirds of the 20th century is not a story of “Mexican reconquest,” it’s a story of Mexican labor that’s being facilitated through state and private actors to make the border something that’s fluid and then to face extreme forms of violence and subordination when it’s American business in the American state that views that labor as surplus or unnecessary. And then this, of course, in many ways actually becomes even more significant post-’65, where in 1965, the US ends up finally eliminating racially restrictive immigration quotas. But what it does for the very first time is it then imposes a quota system on the Western Hemisphere. And it means that your movement from Mexico north now becomes subject to a quota structure, where the traditional networks of economy and family that had marked the symbiotic relationship across both sides of the border now end up targeting individuals, who are just doing what they’ve always done, as “illegal.” It’s at this moment, in a way, where you see the explosion of undocumented status for those that are Mexican migrants. None of this has to do with a story of geopolitical threat from Mexico or Central America. I mean, what’s motivating these shifts are shifts in domestic policy that are driven by domestic judgments and that are also located in a set of global relationships in which the US is asserting various forms of not just economic control, but real foreign policy violence on Central and Latin America, as you described with what’s happening in places like El Salvador by the time we get to the 70s and 80s. And so it obscures the history in a way that is super destructive. Telling the story as a story of like, it’s “Americans,” and really, this is coded as white Americans that are under threat from Latinos, not only very aggressively ignores the actual history, but it’s a form of continuous alibi which, in many ways, is a form of continuous alibi for the actual exercise of American global power and violence. And it’s an alibi that’s predicated, as we started the conversation, on this deep or rigid methodological nationalism. Oh, these are just the borders, and the borders protect those around the inside, and these folks, makes no sense why they want to come in, they want to come in because they’re threatening.
DD: And the people either cross it legally or illegally. Which, at this point, becomes the central distinction because, ironically, the 1965 law signed by LBJ, the Hart-Celler Act, prohibits formal racism in immigration law, but then leads to this incredible obfuscation of that deeply racist system at work. And so you have people speaking in this facially race-neutral language about their problem with undocumented immigrants isn’t that they’re Mexican or with immigration, it’s that they “came the wrong way.” Whereas their ancestors came the right way, which of course obscures the fact that for most of American history, the right way was just being white.
AR: And it’s also that for most of American history that the border is essentially a port of entry. And so there was no federal migration system in the same way, and that to the extent that it existed, it existed precisely to import you in because you are white. The other thing that I’d say about this, which is, so Hart-Celler and the 1965 bill, there are these three distinct periods, in a way, that have these overlapping effects. There’s a story of migration policy up to the 1920s. Really, what ends up happening in the teens is that you have the passage of literacy tests for migrants that are coming in 1917, and then two quota laws: the 1921 quota law that’s more racially inclusive and then 1924, which bans entry entirely from Asia and Africa. And that transforms the immigrant population from one that was more mixed in terms of European ancestry to 84% from Western Europe. And it also ends up dramatically decreasing the population of people that are foreign born in the US. By the time I get to the mid-20th century, the foreign-born population is like five percent of the country, where it had been 15% at the turn of the century. And the big thing that’s happening that’s provoking the change between the late 19th century and the imposition of these policies in the 1920s is the closing of the frontier, the way in which there just isn’t the same need for European migrants in order to be able to settle the West, and the sense that, increasingly, migrants are being experienced on the ground as economic competitors rather than co-participants in a shared project of American expansion. That marks the 1920s. And then there’s another kind of decisive moment in the 1960s, and the 1965 law is really part of the post-World War II, Cold War liberal commitment to what you can think of as Cold War civil rights. So it’s part of a civil rights project. The laws pass the same year the Voting Rights Act, the year after the Civil Rights Act; it’s strongly defended by folks like Martin Luther King and it’s understood as an assertion of a particular kind of liberal creed, that the US has stood, from the founding, for the principles of freedom and equality for all, the parts of the Declaration of Independence that we like, not the parts that we don’t like, and, in a way, that kind of ideological ground for the bill––like the bill is built on the idea that the country is a nation of immigrants. Everyone, you know, whether an enslaved African-American person or a person of Chinese descent, or somebody that’s Mexican or European, they’re all equally people that came from abroad and have built the country.
DD: Which is incredibly novel in the 1960s. And Donna Garbaccia has done great research on this. It was only at the beginning of the era of restriction, in the late 19th and early 20th century, that the word immigrant even came into use, and it had a negative connotation at the time. Prior, people were called emigrants, which could refer to either people moving to settle out West, or coming into the country. It was more of a synonym for settler. But then suddenly in the 1960s, after JFK and what-not, there’s this idea that we’re, and amidst the Civil Rights Movement, the Black Freedom Movement, there’s this idea that we’re a nation of immigrants and to this day, liberals especially, I think, reread all of the country’s history backwards through that erroneous lens.
AR: You know, it’s very interesting that we’ve been somewhat anachronistic in talking about the early history, in occasionally up and slipping in the word “immigrant”. The word that was used was emigrant. And it could mean coming from abroad, but an emigrant could just be somebody that’s moving from a different locality, from another county or another state. Oftentimes the people that were actually on ships coming from Europe, the term for them was “passenger.” And the way that migration policy was organized wasn’t even one that really emphasized a distinction between the national border and other local borders. You know, oftentimes it would be done at the state level and the state policy would be about limitations on people with contagious diseases, or concerns about folks that might be “poppers,” or removal of people that were poppers from one state to another, or placing people that are poor in workhouses, in places like Massachusetts or in New York. And immigration becomes the language of the new restrictionism in the late 19th century. And then it only really emerges as a positive language when you’re starting to get to the 1930s and the popular front culture of the New Deal that’s built on white, ethnic, working-class votes in the cities. That’s telling a story of cultural pluralism as what defines a country. Of course, the thing that’s really interesting about it is, it’s precisely at this historical moment where the borders you know most aggressively close.
DD: Including to Jews fleeing the Holocaust.
AR: Exactly. And then it comes back––in the late 50s and early 60s, John F. Kennedy is very closely associated with the termination of immigrants, and it becomes the basis for the 1965 bill. And the reason why telling this is actually useful for the conversation we’re having about nativism is because the Hart-Celler Bill, the arguments around the US as a nation of immigrants, what it does is it obscures the nature of not just the history of population control but how the US is situated in the world. You know, the US, just a country like any other country, it’s relationship to Mexico is really no different than its relationship to any other country globally. There are no real power differences, to the extent that the US has any place in the world, maybe it’s like that first nation among equals. And so it’s totally appropriate. You know, you get rid of racial restrictions, you apply quotas to the Western Hemisphere, you apply quotas to the––
DD: You get country-specific quotas in the 1970s applied evenly, which we still have today. That gives people from Bhutan the same number of visas as Mexicans.
AR: And the only way that this makes any kind of sense is essentially if you’ve stripped all of the historical specificity and truth from the story of migration, which is, the policy has been built around demographic settlement of the right kinds of populations. The US is both a colonial enterprise domestically, and a particular kind of global imperial project, that then also has very complicated relationships with places like Mexico and other countries in Latin America, and that all of these end up shaping very particular population flows. There’s a population flow from Mexico that is not the equivalent of a population flow, as you said, from Bhutan. And the story of the nation of immigrants just means okay, the US is, it’s almost like it’s an island country, and everybody else sees this project of freedom and equality that exists domestically and just, you’re kind of jumping to come in, and so we have to put quotas to limit who can come in, but they come in from all over the place.
DD: So we’re gonna have to be fair and give everyone––
AR: You gotta be fair. And then the problem becomes, more people seem to be coming in than the quotas allow, and then the debate becomes, you know, the liberal positions: well, we should be more inviting about the people that want to come in and the “conservative” position is well, wait a second, laws are laws, and it’s illegal to try to come in in ways that supersede the quota. And so the nativists are able to essentially obscure the racial grounding of their argument, which is an argument about race, about, essentially, demographic purity, which occasionally seeps through. Occasionally you have Sessions––
AR: Say something like, you know, I actually like those 1924 national origins quotas, or Bannon say we should be a “civic society.”
DD: Or Pat Buchanan.
AR: But for the most part, that all gets obscured, because in a way, it’s all framed through a popular conversation about the US as sort of ethically open to all but organized through particular rules that are colorblind and that highlight the country’s status as a nation of immigrants. And then what ends up practically is that communities that, in fact, because of colonial and imperial histories, have thick relationships with the country, find themselves facing the brunt, of course, of violence, in a way in which it’s very difficult, within the terms of American discourse, to even articulate why an undocumented migrant from Mexico is actually a subordinated person in this country––that’s tied to like three centuries of history.
DD: Yeah. You write “now in place of European co-ethnics, immigrants to the United States are overwhelmingly nonwhite, the very individuals that settlers once deemed ‘unfit’ for full membership. And instead of extending settler projects into the frontier or ‘periphery,’ as 19th century immigrants did, today’s new arrivals in essence represent the movement of this periphery into the very center of metropolitan power.” I think this is very right on and as we’ve been discussing, it seems that this entire historical trajectory is obscured precisely by the nation of immigrant stories that pro-immigration liberals and establishment conservatives are so dedicated to telling. By contrast, the people on the most radical fringes of the nativist right are correct that immigration today is fundamentally different, but only the most brazenly white nationalist and paleoconservative nativists will say precisely why.
AR: I think that’s right, which is there’s a particular kind of national myth that obscures the kinds of forces and dynamics that shape population movement. And the only folks that unfortunately seem to be willing to actually highlight the story of racially defined population control are the Sessions and the Bannons of the world that want to affirm a particular kind of demographic project. But I think the thing that, for those of us on the left, what needs to be said is that this operates in a couple different ways. So why is it that you have large numbers of people from the Global South that make up the predominant percentage of people that come to the US? And that’s a story that’s not just about like, oh, you know, folks from everywhere around the world want to come to the country because it’s free and equal. It’s a story about the profound global inequities that are hard-written into the international order, and of which the US enjoys the greatest amount of benefit. The US is a dominant global empire that has constructed international legal arrangements so that its capital essentially flows everywhere, while controlling the terms under which people come to the country, and those terms are, essentially, folks that can come to do hard work domestically but face a continuous shadow of probation and potential removal. Of course it’s going to be people that are from parts of the world that are historically colonized and dispossessed that are willing to move in the first place, but then connected to that general geostrategic point, there’s a point that you’ve made about foreign policy. Well, it’s also oftentimes people that are facing actual violence within their own home countries due to direct American foreign policy interference. I mean this is the story of Syria, of various places in the Middle East; this is the story, obviously, of Central America, Guatemala, El Salvador, etc. And then there’s a third point, which is the American project has been tied to particular kinds of both symbiotic but unequal relationships with particular states, like Mexico, and so obviously you’re going to have migration flows that are quite distinct from what you’d see in other parts of the world. And all of those actually have to be confronted and it’s why, in a sense, the solution can only begin by saying we need to repudiate this focus on the border as some kind of closed barrier that has to be protected for internal democracy, where the whole internal project is one about imperial expansion that has these reverberating effects. That’s why those from the periphery come to the center. And there needs to be recognition that those from the periphery that now are coming to the center are engaged in the same kind of hard work that was historically provided by subordinated populations under conditions that have really clear resonances in terms of limited rights protections, like the constant shadow of state and private violence––in many ways, the continuation of one clear side of the long story of demographic control in the US.
DD: The Wong Kim Ark ruling, which we were talking about a little while ago and led us down the path we’ve been on––I wanted to talk a little bit more about that because what it did was affirm that the 14th Amendment did provide birthright citizenship to anyone born in the US, regardless of the nationality or citizenship status of their parents. And this is incredibly important today because Trump has declared that he can end birthright citizenship by executive order without violating Wong Kim Ark on the grounds, if I have it right, that contrary to all normal interpretation of that decision since it was made, that the decision only granted citizenship in the case in question because the parents were legal residents. What does this reinterpretation of Wong Kim Ark at the moment we find ourselves in today say about the politics of reinventing caste in the United States?
AR: So the thing that I’d say is that we’ve spent a lot of time talking about––I mean scholars and activists over the last decade plus about the New Jim Crow as a way of describing the rise of mass incarceration and the kind of interconnections between race and class that mark Black subordination in the present. And I think that’s been a really powerful and important conversation. But I actually think there are really significant ways in which the contemporary treatment of undocumented populations, but really of large chunks of the immigrant community more generally, actually have very powerful echoes of Jim Crow. And that it’s another site where we’re seeing the replication of something that looks like a New Jim Crow. Maybe it’s just worth teasing out a whole bunch of it and showing how it’s connected to the birthright citizenship question. So, you know, liberal lawyers and scholars have focused on the fact that Trump’s argument about the children of undocumented immigrants not having birthright citizenship basically just fails as a matter of understanding the 14th Amendment, contemporaneous naturalization laws, the doctrine of Wong Kim Ark, and just very quickly make that argument and sort of dispatch it. So the point is that the 14th Amendment includes this language that says everybody’s entitled to birthright citizenship that’s subject to the jurisdiction thereof. And by all accounts, what the framers of the 14th Amendment understood that language to exclude were basically the children of foreign diplomats and foreign officials, based on the thought that if you were a foreign diplomat or foreign minister in a country, you enjoyed benefits of immunity, like you could be immune from local laws.
DD: And just as the actual property of the embassy is technically foreign territory, your child, if they’re born here, is technically foreign.
AR: Yeah. So that you have various kinds of consular protections. And so all of that means that birthright citizenship should not then be extended to your children because of the fact that you’re potentially not subject to local law. That’s essentially what that caveat was meant for. There then becomes a debate about to what extent that actually also ends up including Native peoples––Indians “not taxed.” So these are Native peoples that are not living within US states and territories but remaining on Indian reservations, particularly during the era of the treaty system, where Native communities and Indian nations, essentially their policies with the US state was sort of organized through treaty practices. That’s the basic view that ends up undergirding the legal extension of birthright citizenship in Wong Kim Mark, to a Chinese person whose parents are non-citizens. It’s the basis of how the statutes have been interpreted and it means that this distinction between legal and and illegal resident just doesn’t hold a lot of water because of the fact that even if you’re an undocumented immigrant, you’re still subject to the laws thereof, like you don’t actually have various kinds of immunity, like protections from some foreign government. And then, of course, as a matter of historical argument it also doesn’t work, because the category of “illegal” did not even exist in the late 19th century. So all of these are reasons why these are bad legal arguments. But that’s actually not, I think, what’s at stake here. What’s at stake here is cutting against what was supposed to be the central purpose of birthright citizenship. So why is Section 1 of the 14th Amendment––why does it include birthright citizenship language in the first place? It’s meant to overrule Dred Scott. So Dred Scott is the decision in 1857 where Roger Taney says that African Americans, whether free or enslaved, have no rights that whites are bound to respect and that African Americans in either category are not federal citizens for purposes of the Constitution. And it does something else, which is it also says that if African Americans are not federal citizens, as a constitutional matter, Congress cannot naturalize African Americans, even non-slave African Americans, to be federal citizens. In other words, Congress can’t pass a law like the Naturalization Act of 1802, saying that that African Americans are now naturalized as federal citizens. And the reason why, according to Dred Scott, is because Taney says that the naturalization power that Congress has only applies to individuals that are foreign subjects of a foreign government that are moving to the US. And that enslaved persons and the children of enslaved persons are not moving from another country. They’re, you know, here on the land in the US. And so Congress doesn’t have these naturalization powers. The 14th Amendment’s birthright citizenship clause was meant to overcome that, and say no, that African Americans can be federal citizens. But more than just that, what it was supposed to do was, by establishing federal citizenship for African Americans, ensure––this is the goal of the Radical Republicans, at least––ensure that you have an end to a broader system of racial subordination, because of the thought at the time that there were these other provisions that actually gave substantive teeth to what it meant to be a federal citizen. Being a federal citizen wouldn’t just be an empty formal category with a variety of different stratified statuses and various forms of segregation, subordination, that go hand-in-hand with it. There are supposed to be privileges and immunities that attach to being a federal citizen; there’s supposed to be equal protection that attaches to being a federal citizen, etc. And the story of the last third, really, of the 19th century is that even if the South was no longer formally a slave economy, it was still in fact organized on principles of coerced and enslaved labor, and there wasn’t the political will in the North to fundamentally reconstruct racial and economic relations. And it meant that the old Southern slavocracy, and what became the new kind of white supremacist oligarchy just improvised, time and again, new ways of saying, okay, well, you might have birthright citizenship, but in point of fact, you’re going to be subject still to the same kinds of coercive labor and political regimes. And this ends up being sanctioned by the Supreme Court. So you have a case called The Slaughter-House Cases in 1873, where the court basically says, you know what, we’re going to essentially gut the meaning of the privileges and immunities clause. And so that there are actually very few rights that are associated with being a federal citizen. Most of your rights, like your right to vote, are state guarantees. And the court is only going to be in the business of protecting African Americans when states infringe on this very limited set of federal citizenship guarantees, things like being able to come to the seat of government, or have protections at the high seas, but not stuff like voting in particular. And you end up having the emergence of sharecropping, which sort of improvises new, bonded forms of Black labor. You have systematic voting disenfranchisement. And then you have a broader structure of segregation. And these end up being overlapping modes of white supremacy that maintain a coerced and dependent Black labor supply for white southern economy, while denying to African Americans any of the political rights that would be necessary in order to be able to contest that condition of dependence. And that’s the story of the return of white supremacy in the South, and it’s also the story of the gutting of the meaning of birthright citizenship. I would say that when folks like Trump invoke this rhetoric about how the children of undocumented immigrants should not have birthright citizenship, you should see it as a contemporary effort to essentially replicate many of those old systems and to, again, gut what’s supposed to be the meaning of birthright citizenship, which is like, no subordinated racial caste. Because look at what the present consists in. You have a population of undocumented immigrants––the numbers, depending on how they get counted, some numbers are more like 11 million, others say that the numbers are closer to like 20 million. The majority are from Mexico because of the kind of symbiotic relationships that I just described. They exist within a modern immigration system that’s a product of 1996 reforms, that Clinton signed into law, that essentially use a system of deportation, detention, and criminalization to mean that everyone, including legal residents, are on a condition of permanent probation that could find their status revoked.
DD: And as a quick aside, are deeply embedded in the War on Crime and also in the prehistory of the War on Terror.
AR: Absolutely. 1996 is also the year that you have things like the passage of EDPA, the Antiterrorism and Effective Death Penalty Act, which is a way of essentially creating a new criminal system. That’s supposed to be about antiterrorism, but it again, provides greater criminal sanctions and capacities for the state to confront particular kinds of non-white populations.
DD: And then also the Illegal Immigration and Immigrant Responsibility Act of the same year.
AR: Yeah. So that’s the immigration reform bill that I was describing from 1996. That’s like the key piece of legislation, and what it does is it means that you now have this population. The population is here because of various forms of state and private business inducement, as well as longstanding colonial and imperial patterns and symbiotic relationships that exist between different states, but facing the permanent threat of deportation because of these various reforms, like limited access to social programs and benefits, no voting rights, limited labor rights. And then the other thing that’s just sort the cherry on the top, so to speak––to just highlight the resonances with the late 19th century––that over half of the noncitizen prison population in federal prisons are in segregated prisons. This is incredible work that’s been done by a scholar named Emma Kaufman, and she has an article on this that’s forthcoming, I think, in the Harvard Law Review, but I could be mistaken about the location. Nineteen thousand federal prisoners that are noncitizens are in noncitizen-only prisons and the majority of them are there for low-level drug offenses––so not even for immigration related offenses. This is something that basically started emerging in the late 90s, as a kind of outgrowth of those reforms in 1996 and, not surprisingly, just like with past separate but equal systems, these prisons that, again, house more than half of noncitizens that are in federal prison, have limited health benefits, fewer various programs, higher incidences of violence, tend to be in more isolated locations further away from the families of people that are noncitizens. And if you take a look at this whole structure as a whole, what is it that you see? You see a population from the global periphery, precisely the parts of the world that were historically understood as unfit for full membership, engage domestically in the harder, degraded forms of work that are necessary for the economy but are not viewed as consistent with free labor, from difficult forms of wage-earning agricultural work to domestic household work that exists in the home that’s also highly gendered and feminized, living under circumstances where there’s a continuous shadow of state violence, with no meaningful labor protections, minimal access to social benefits, and on top of it, no meaningful political rights, including the right to vote.
DD: The state violence, the state repression, is integral to producing the category of illegality. You just mentioned the separate prison system––very much interior raids and also this spectacular militarization of the border, which arguably doesn’t do very much to actually keep people from coming in, historically, but does very effectively communicate to the American public this distinction that these people are illegal, through the criminalization.
AR: Yeah and the other thing that you can say––you know, all of these analogies aren’t perfect fits. But the thing that this analogy is highlighting is that a large part of what old Jim Crow was about was an “economic system,” like maintaining a dependent labor supply through racial subordination and state-backed violence, including through spectacular acts of violence and lawlessness on the edges, like lynching and other forms of violence as well. And what it is that we see at present here is a system that’s organized to maintain a dependent labor supply and that operates through systematic disenfranchisement, and that uses spectacular forms of violence as well, including the kinds of state criminality that we’re seeing meted out at the border, like the separation of families, the death of migrant children, and on and on and on. So that means that when Trump talks about rescinding birthright citizenship, you know, maybe birthright citizenship is not going to get rescinded. Maybe it’s just rhetoric. But it shouldn’t be experienced as just hot air for a nativist base. It actually tells us something really foundational about the contemporary nature of migration policy and the way in which our contemporary migration policy essentially reasserts the very worst elements of how population control was managed in the “long 19th century,” and what in fact then might be necessary to overcome it. And that what’s necessary to overcome it is a heck of a lot more than some tradeoff between additional border security and limited domestic amnesty, let’s say, for Dreamers. That if essentially what we see are modern iterations of an old Jim Crow, organized for the old imperial prerogative, then this has to be smashed, root and branch.
DD: One other historical connection, before we close by talking about how we smash it, root and branch, is that just as the early period of restriction that accompanied the closing of the frontier from the late 19th to early 20th century, also restricted was an end to noncitizen voting, which had been so prevalent in the 19th century. Today, the Trump administration is trying to finish off that project or further consolidate it, or take it to the next level or whatever by ensuring that the census separately counts noncitizens, which has gotten a lot of play because it could depress undocumented participation in the census. But it could also potentially be used to do something that conservatives have wanted to do for a long time, which is to shift congressional and state legislative seats away from left-leaning areas with large immigrant populations by excluding noncitizens from the count that’s used for reapportionment. And this is remarkable given that the antebellum conservatives successfully counted their slaves as three-fifths of a person for purposes of their own political power, and also that conservative districts today, especially in rural areas, continue to count disenfranchised prisoners from cities as part of their local population for reapportionment purposes.
AR: This is why I think the heart of an agenda that’s actually a general liberation agenda but that’s also about what immigrant freedom means in the present has to be tied to resident voting. In other words, voting rights for noncitizens. And the reason why is because voting isn’t just about the issue of one’s participation in the political process and being able to exercise your voice about issues that are important to you, which is central to democratic theory. But it’s also fundamentally tied to the kind of power that various groups enjoy in society. And the United States, just like any society, is organized through fundamental contradictions between haves and have-nots: those that enjoy racial, economic, and gender dominance, and those that find themselves subject to various forms of subordination. And the vote is one of the central tools of being able to alter those power disparities. And it’s why voting throughout American history has been so central to truly radical insurgent democratic agendas. You know, it’s hard to imagine right now, but like one of the things that like you know Marx and Engels most wanted in Europe in the 19th century was universal suffrage. We don’t think of it as a radical thought, but the thought was, it’s not just that the vote means that you can participate in a decision, it’s that the vote alters the terms of who has power in the society. And it’s precisely why the long story of white settler ideology has been about systematically attempting to restrict voting rights from those that are viewed as outsiders, and to provide those that are seen as co-ethnic participants in the same project of settlement. And you know, it was central to Jim Crow to engage in systematic disenfranchisement and then to stay one step ahead of efforts to limit those forms of disenfranchisement. And it’s central today to the maintenance of various types of racial and economic hierarchy to dilute and limit the power of the vote, and to do so including through diluting and limiting the power of immigrant voting.
DD: Your argument is that we once had the settler model that imposed internal equality which was premised on external subjugation and exclusion, but that the collapse of that model, if I have it right, has left us with the imperial prerogative being applied both externally and internally, which is the worst of all worlds. And what I’ll close by asking you what the alternative is, and when crafting that alternative, what we can learn from the history of efforts to universalize American freedom, from Radical Republicans to the Populists to the labor movement, and the limits that those efforts confronted?
AR: You know, my vision of emancipation is probably not all that––I mean it’s not all that unique. So I think the goal has to be something like equal and effective freedom for all, and what that means is that everybody has control over the most important decisions that affect their lives, so decisions especially about the nature of their own work, experiences, and about the political society that they’re part of. You know, I see the way that we get there, as through, what sometimes folks called a prefigurative politics, or non-reformist reforms, or revolutionary reforms––pressing for a set of social changes that make it increasingly difficult, if achieved, like small-scale, intermediate social changes that make it increasingly difficult, if achieved, for the existing social order to reproduce itself. In the late 19th century it was things like the eight hour day or universal suffrage. Today, I think we can think of a variety of these kinds of reforms. Everything from a guaranteed job, to prison abolition, to what I was just describing with resident voting. And I think the two things that we can take from the past––one is the centrality of immigrant communities to the revitalization of emancipatory and liberation politics in the US, going all the way back to the Germans that came over after the revolutions in 1848. Those Germans had a central role in abolitionist politics. They formed elements of the Union Army’s officer corps that were really committed to uncompensated abolition and, in various ways, to socialist transformation until the late 19th century. And the role that new European immigrants played in revitalizing the labor movement and highlighting the continuity between American practices and feudal practices on the continent all the way to the present. And the centrality of folks from Mexico and Central America, and Latino immigrants in showing the linkages between capitalism and empire. And that strikes me as a key point of contact, which is the importance of taking the lead from new immigrant activist bases, understanding their own politics as one that shows that immigration is a place that dissolves the distinction between domestic and foreign, that these distinctions make no sense, and that unless you address networks of capital and empire that operate globally that you can’t actually alter conditions domestically, and then the second thing is avoiding the trap, basically, of some of the old elements of the labor movement and of progressive reform. And there’s a persistent tendency to essentially take a symptom, which is the general weakness of the status of workers––of various white and Black, white and Mexican––and then use that as a way of saying, well, look, the problem is the Mexican worker that’s coming across the border, rather than, well no, actually the problem is the structure of capitalism that provides the business elite to profit from the competition between poor workers under a condition in which American power allows capital to move while it places these various kinds of coercive restrictions on labor. And so the heart of this has to be responding to Trump’s emphasis on a racialized politics of demonization that blames the poor worker, essentially by saying, no, actually Trump is an embodiment of an oligarchic system that structures opportunities for both American and non-American workers in ways that are fundamentally unfree.
DD: Well, very well put. Aziz Rana, thank you very much.
AR: My pleasure.
DD: Aziz Rana is a professor of law at Cornell Law School and the author of the book The Two Faces of American Freedom, and the forthcoming book, Rise of the Constitution. Thank you for listening to The Dig from Jacobin Magazine.