CHAPTER 1
Most of us think that we know what the word illegal means and why some people fall into this category. It seems right and natural to us that people should be divided by citizenship, and by documents, into different categories with differential rights.
We assume that the world is naturally divided into countries and that every human being somehow belongs in one country or another. People are supposed to stay in the country that they were born in, unless they can get special permission to enter another. Each country expresses its sovereignty by deciding who is allowed to enter into its territory and who is allowed access to citizenship. So we rarely question the idea that countries should be able to decide who can cross their borders and treat people differently under the law depending on statuses that these same countries assign them.
But there is nothing natural about this state of affairs. Countries, sovereignty, citizenship, and laws are all social constructions: abstractions invented by humans. What’s more, they are all fairly recent inventions. Today, we use them to justify differences in legal status. In this chapter, I will call into question the contemporary concept of illegality by looking at how we came to accept this particular kind of status difference as legitimate, even as we have rejected other historical rationales for laws that inscribe inequality.
We assume that these social constructions have some kind of independent reality or existence, but in fact they don’t: people invented them to serve their own interests. There were historical reasons that people created them, and it’s important to understand those reasons in order to think critically about them.
Our current system of organizing the world into sovereign countries made up of citizens (and, in almost all cases, noncitizens) has roots in past ideas and categories, which have evolved over hundreds of years. The laws that make some immigration—and thus, some people—“illegal” are recent creations, though they grow out of older ideas. Once we carefully examine the history of these concepts, they start to look more and more untenable. Rather than the question we often hear, “What part of illegal don’t you understand?” perhaps we need to ask, “What part of illegal do you understand?”
There are several concepts that can help us to trace the roots of illegality. First, we’ll look at ideologies of European domination that spurred the continent’s expansion after 1492. Ideas about mobility, and who has the right to move where, played an important role in the ideologies of European superiority that justified conquests and colonization.
Connected to ideas about mobility are ideas about the law. In 1894, French novelist Anatole France noted with irony “the majestic equality of the laws, which forbid rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread.”1 Even if a law looks like it treats everybody equally, laws only exist in social contexts. If the social context is unequal or unfair, even a law that purports to be equal might serve to cover up, or even reinforce, existing inequalities. Recently, the discipline of critical legal studies has developed this perspective, arguing that despite its pretensions, the law is never neutral, but rather reflects power relationships in society. As we talk about mobility, we’ll look at how Europeans used laws to assert their superiority and their right to move, and to deny others the right to freedom of movement, all the while asserting that the rule of law must be held sacred.
We’ll also look at how, over the past one thousand years, Europeans have used religion, race, and nationality—that is, countries and citizenship—as organizing principles to divide people into categories or castes. Each has been used hierarchically to justify social inequalities and differential legal treatment of different groups. Once status is inscribed in the law, this becomes an automatic justification for inequality: “it’s the law!”
Status has been used historically to justify forcing people defined as inferior or outsiders to work for those defined as superior or insiders. Low-status people are forced to work in society’s dirtiest, hardest, and most dangerous jobs.
In today’s world, the connection of status to work is different. Until recently, one of the main purposes of status was to create a subject labor force through enslavement and other systems of forced labor. In the twenty-first century, laws are still used keep certain people working in low-wage, undesirable jobs. But the way status is used to enforce labor has changed. Force became more subtle, and work itself became redefined as a privilege. As twentieth-century economic changes in the United States and abroad made it more and more difficult for people to produce their own subsistence, overt force became less and less necessary as a way of making people work. Now, people work out of need.
Along with these structural changes came ideological changes. In today’s ideology, work is a privilege reserved for those of superior status, rather than a burden imposed on those of inferior status. Of course, those of inferior status still work, and they still do the worst jobs. But the system is upheld by laws that claim to prevent people of inferior status from working. But the laws are only actually enforced in more desirable sectors of the labor market; thus, people labeled inferior are once again relegated to the worst jobs. Still, it’s notable that the late twentieth century was the first time that laws have claimed to try to reserve jobs for the privileged, rather than force them upon the unprivileged.
These issues are interrelated in many ways. While we’ll address them one by one, the discussion will also build an argument about the arbitrary and historically specific nature of illegality and the role it serves in the modern world.
DOMINATION AND MOBILITY
Some of the unspoken foundations that support the idea of illegality today come to us thanks to Christopher Columbus and the European expansion that followed in his wake. It might surprise readers to hear that many of the structures that have led to the current ways that people are moving around the planet—or prevented from this movement—date back to that same colonial expansion.
The “age of exploration” sent Europeans around the globe with the aim of settling and ruling distant lands and peoples. They developed an ideology to justify this exploration: an ideology that granted full humanity, free will, intellect, and strength to white Christians. To those who did not fall into that category, the Europeans (who did not at that time think of themselves as Europeans or even as white but rather primarily as Christians) attributed irrationality, brutality, stupidity, and barbarity.2
Along with these ideologies went ideas about movement: who belonged where. Europeans, apparently, belonged everywhere. Christians needed to spread their religion to heathens, European governments needed to expand their realms and bestow the benefits of their government to others, and settlers needed to fulfill their pioneering spirit and manifest destiny by applying their will and their capital to new lands and peoples. And they created countries, governments, and laws to authorize themselves to do these things.
In the mind frame undergirding European exploration, non-Europeans were not capable, nor had they the right, to make their own decisions about residence or movement. It was up to Europeans to forcibly relocate them to where they could best serve European needs. Native Americans and Africans were both subject to transportation—Native Americans to mines and haciendas (in Spanish America) or simply off of lands that Europeans desired (in British America), and Africans to those same lands, to work for Europeans.
In the New Imperialism of the nineteenth century, Europeans (who by now identified explicitly with that term) once more demonstrated their will to move, to rule, and to displace. In the Scramble for Africa, Britain, France, and Germany laid their claims to the continent. The new United States followed its Manifest Destiny and displaced Native Americans westward and onto reservations, and then went on to appropriate colonies like Puerto Rico, Cuba, and the Philippines from the declining Spanish empire. After abolishing slavery, the United States established legal systems of segregation to prohibit African Americans from whites-only spaces. Meanwhile, the new imperial powers transported indentured Africans, East Indians, and Chinese to the Caribbean and the American continent to work on their plantations, railroads, and other enterprises.
In the intellectual spirit of the time, King Leopold of Belgium offered a pseudoscientific justification for this European control of migrations, explaining that “the races inhabiting [the southern continents] are captives in the bonds of all powerful nature; they will never break down the fences that sunder them from us. It is for us, the favored races, to go to them.”3 Go to them, and then confine them. As one white settler in Arizona proposed, the United States should “[p]lace the Indians on reservations . . . establish military posts along their limits, and shoot every Indian found off the reservations.”4
From apartheid South Africa to the Jim Crow South, white Europeans during the twentieth century made it clear that the right to decide who could move where was inherent to domination. In 1917, the United States created the Asiatic Barred Zone prohibiting immigration by “Asiatics,” who were defined as “aliens ineligible to citizenship” because of their race. Meanwhile, US forces were demanding the opening of China and Japan to US migration, trade, and business enterprise and, indeed, demanding the right of extraterritoriality for its citizens there. As Woodrow Wilson declared in 1907 (before he became president), “The doors of the nations which are closed . . . must be battered down. Concessions obtained by financiers must be safeguarded by ministers of state, even if the sovereignty of unwilling nations be outraged in the process. Colonies must be obtained or planted in order that no useful corner of the world may be overlooked or left unused.”5 Although China was not a colony, with the Treaty of Wanghia in 1844, the United States insisted on American access to Chinese ports and, moreover, that US citizens in China would be subject to US rather than Chinese law. In the words of Teemu Ruskola, not only were Americans guaranteed the right to enter China, but “when Americans entered China, American law traveled with them, effectively attaching to their very bodies.”6
Americans and Europeans currently assume that freedom to travel is their birthright. “Over much of the world today citizens of many countries can travel freely,” Jared Diamond asserts confidently. “To cross the border into another country, either we arrive unannounced and just show our passport, or else we have to obtain a visa in advance but can then travel without restrictions.”7 What he really means is that citizens of the former colonial powers (and also, generally, postcolonial elites) can travel freely. These same countries routinely deny entry to people, especially poor people, from their former colonies. Freedom to travel, then, is still a privilege reserved for those in control.
Americans and Europeans also rarely question their right to send troops and establish governments in their former colonies. Iraq and Afghanistan, they implicitly believe (like Puerto Rico, Cuba, Nicaragua, Haiti, the Dominican Republic, Vietnam, and so on), simply can’t govern themselves without a US and European presence. People from all of those former colonies, however, also need to have their mobility severely restricted. Countries like the United States established themselves by driving out nonwhites or non-Europeans or non-Christians, and establishing rule over nonwhites, non-Europeans, and non-Christians in the Global South. Now, they argue, they need to erect militarized borders to prevent the descendants of those nonwhites from infiltrating, at the same time that they continue to send their citizens to those countries as occupying armies, aid workers, investors, tourists, or students.
FROM RELIGION TO RACE
Columbus and those who traveled with and after him were heirs to a medieval Spanish tradition that used religion as the main principle for organizing and categorizing people. Muslim Spain, from 711 to 1492, like many other medieval and earlier (and some later) empires, was based on the idea of convivencia, or religious tolerance, among Muslim, Christian, and Jewish communities. Not so Christian Spain. The reconquista, or reconquest, of the Iberian peninsula by Christians drew on the spirit of the Crusades: to drive out and destroy the infidels.
Spanish Christian ideas about religion were much more essentialist than the way most people think about religion today. Religion was thought to be defined by blood. The Spanish developed elaborate theories of lineage based on what was called Christians’ purity of blood. Jews’ and Muslims’ blood was considered to be stained. Even if they converted to Christianity, they would continue to bear the stain of their non-Christian ancestry. So-called New Christians were viewed with suspicion and periodically repressed or expelled.
Ideas about mobility—who belonged where—were based on religion. The Spanish conquest in the Americas began the same year—1492—that the last Muslims and Jews were driven out of the Iberian Peninsula, and the Spaniards took their ideologies with them. Spanish Christians were already transporting and enslaving Africans with the rationale that they were not Christian. They debated the humanity of the native peoples of the Americas, in the end deciding that they were, in theory, capable of being converted to Christianity and, therefore, not to be enslaved.
Capable of being converted or not, though, the indigenous inhabitants clearly did not have pure blood. In the Americas, Christian Spaniards’ struggle to assert, define, and justify their so-called purity of blood began to take on a more racial cast. The term purity came to mean the absence of African or indigenous ancestry.
In the elaborate legal hierarchy of Spanish America, racialized castes proliferated by the eighteenth century. Spaniards born in Spain were the purest, because there was no chance that their ancestry could have been compromised with indigenous or African admixture. People of (supposedly) 100 percent Spanish ancestry born in the New World occupied a space on a rung lower, and from there, the ranks descended all the way down to enslaved Africans and tributary Indians, with multiple mixtures in between.
Emerging ideas about race were also part of an elaborate system of legal status and access—or lack of access—to rights in society. People defined as belonging to the lower races were prohibited from spaces reserved for the privileged and subject to special taxes and forced labor. Purity of blood could also be purchased. Suspicious or inferior ancestry could be erased for a fee, thus strengthening the relationship between race and social status.8
British colonizers in North America were heirs to some of the same broad European cultural mores as the Spanish, but their colonial enterprise was also infused with a form of Protestant, northern European ethno-nationalism exemplified in the “Black Legend.” Promoted by British and Dutch thinkers and artists like Theodore de Bry, the Black Legend depicted the cruelties of Spanish conquest and attributed them to Spanish Catholicism and the Spanish racialized character. British and Dutch colonialism, in contrast, was conceived as a benign project.9
Religion was a key factor for the British in defining who they were as a people and justifying their right to conquer, dominate, and exclude. Legal scholar Aziz Rana argues that, for the British, the original “savages” were the Catholic Irish. The conquest of Ireland served as a “test case” or “rehearsal” for subsequent British conquest in the Americas. In Ireland, the British refined their rationale for land expropriation. If the natives didn’t cultivate the land according to British standards or did not accept British religious dictates, they lost their rights to the land itself.10
In the American colonies, British ideas about race grew from and eventually came to supersede those about religion. In King Philip’s War (1675), colonists slaughtered Native Americans, Christianized or not.11 By the 1700s, white indentured servants were moving off the plantations and being replaced by African slaves. As whites took advantage of the economic rewards of freedom, they also began to impose laws that protected their privileges and their access to slave labor—the first racial laws that targeted free blacks solely on the basis of race. Thus, by the 1700s, free blacks had become “a segregated and separate caste” in American society.12
Just as religion became a palimpsest for race in the first centuries of European colonialism, the race/religion complex likewise became a palimpsest for what came to be called the nation. New ideas evolved from, and were shaped by, what came before. When the United States declared itself an independent nation, race was the key factor in determining who belonged to the polity. Emerging European nation-states, too, based their legitimacy on what Benedict Anderson called “imagined communities” of peoples connected primordially, ethnically—essentially, racially or by blood.13
FROM RACE TO NATION
Racially based ideas held considerable sway well into the twentieth century, even as policies and ideologies came to replace race with nation as the prime rationale for legal domination, discrimination, and restrictions on mobility. The abolition of racially based slavery, most analysts now agree, led to an upsurge in racially exclusive and repressive policies and attitudes throughout the Americas. Not until the late twentieth century, with Europe’s rejection of Nazism and the dismantling of the racial regime in the United States, did overtly racialist thought lose its legitimacy. Precisely in this recent period, the use of nationality as an excuse for discrimination and persecution rose to new prominence. It was not a new concept or justification, but it emerged, perhaps, in full ideological flower, after generations of germination.
What we think of as countries today—also known as nation-states—first emerged in Europe several centuries ago. The idea of the nation-state was that the country was the manifestation of a historical unity or essence of the people that lived there—the nation. Older, multicultural empires like the Russian, Austro-Hungarian, and Ottoman gave way by the twentieth century to a proliferation of countries or states, each claiming to represent a people or nation.
In the United States, rights and access that used to be assigned on the basis of religion or race were gradually transferred to citizenship status. Racial restrictions on immigration and citizenship were replaced by national restrictions. Historian John Torpey wrote that gaining a monopoly over “legitimate means of movement” was precisely how emerging nation-states established their claims to sovereignty.14
To examine the different components of this second shift—from race to nation—let us look for a moment at the evolution of controls on mobility in the United States. In the nineteenth-century United States, private individuals and subnational localities held the right to control freedom of movement, especially that of enslaved and even free blacks. National membership was overtly based on race: until 1868, citizenship was restricted to whites. The Dred Scott decision in 1857 reiterated the primacy of race as a justification for deprivation of rights, but also of individual rights to control mobility. Until the civil rights acts of the 1960s, racial controls on physical access and individual, local, or institutional controls on access prevailed. School and bus segregation may be the best-known examples, but sundown towns, in which blacks were allowed to work but not remain after sunset, also hung on until 1968.15
Explicitly national manifestations of control of movement emerged in the late nineteenth century, imbued with racial ideas. The first restrictive immigration laws in the United States conflated race and nation. Chinese exclusion in 1882 was based on race: as “racially ineligible to citizenship,” the Chinese should be excluded from entering the country as well. The quota system that restricted southern and eastern European immigration—and virtually proscribed non-European immigration—starting in 1921, likewise relied on racialized notions of nationality: Italian was as much a race as an official citizenship status.
Even as national citizenship became more important in the early twentieth century, race continued to play an important role in determining status and access to rights. Hiroshi Motomura uses the term “intending citizenship” to explain the privileges granted to white immigrants in the nineteenth century. Although not formally citizens, by virtue of their race they were accorded privileges of access to the benefits of society, including the right to vote and virtually automatic naturalization. Aziz Rana elaborates by distinguishing formal citizenship from “free citizenship”—the latter available only to whites. Mexicans, after 1848, and blacks, after 1868, were accorded formal citizenship, but still denied the right to vote, to own land, and to move freely.16 New immigrants from Europe—Motomura’s “intended” citizens—were accorded all of those rights, even when they were not yet formally citizens. Thus, race frequently trumped nationality in determining access to rights.
As the twentieth century progressed, national citizenship more and more joined race as a primordial legal identification and determinant of status. For example, voting laws were changed to prohibit noncitizens from voting. Instead of being considered automatically part of the country on the basis of their whiteness, European immigrants came to be considered foreign because of their immigrant status.17 For the first time, white Europeans were treated as legally other and subordinate, the way conquered and racially differentiated peoples—African and Indian—had been since the first days of British settlement. Noncitizens were also told that, like Africans and Indians, they were no longer in charge of their own mobility. State authorities now had the right to exclude or deport them.18
The 1924 immigration legislation illustrates some of the ways that national citizenship was coming to stand in for race. Asians were excluded as “aliens ineligible to citizenship” based on the same legal ideas that had previously excluded African Americans. The new legal category of national origins was invented for Europeans.19 They were defined as implicitly belonging to the white race, but having so-called nationalities or ethnicities that did not preclude assimilation into the United States. Mexican and Chinese nationalities, though, became legally defined as nonwhite. So while race and nationality were separated for European Americans (i.e., a person could be both white and Italian), they became one for Asians and Mexicans; their nationalities were essentially legislated to be nonwhite races.20
These legal changes complicated racial categories by overlaying them with nation. If Chinese and Mexican became races, the very meaning of race was changing fundamentally, its power giving way to nation. If Congress and the courts had to resort more and more to nationality as a pretext for the denial of rights, it was precisely because racial justifications were being chipped away, at least in the legal sphere.
During most of the twentieth century, legal subjection by race and by immigration or citizenship status coexisted. By the end of the twentieth century, though, differential legal treatment on the basis of race had fallen from international favor. Formal abolition of racial discrimination may not have created actual racial equality, but it did dismantle and delegitimize legal structures of discrimination, including racialized restrictions on freedom of movement. Facilities formerly justified as separate-but-equal were abolished, along with sundown towns. Federal antidiscrimination law prohibited long-standing practices that denied access to jobs, spaces, and benefits on the basis of race.
But just as the first round of antiracialist legislation after the Civil War led to a surge in anti-immigrant legislation—aimed at racially defined unwanteds—so did the second round after World War II. If citizenship were to be granted to all by birth, as per the Fourteenth Amendment, then race could no longer be explicitly used to deny citizenship. So nationality stood in for it, and citizens of countries like China lost their right to immigrate. If formal citizenship was to be made real—if citizens could no longer be excluded from jobs, landownership, voting, and other rights on the basis of race—nationality could once again be mobilized as a method of exclusion. In 1965, numerical immigration restrictions were applied for the first time to the Western Hemisphere. Mexicans could no longer be discriminated against for belonging to the Mexican race; now they would be discriminated against for their nationality, their Mexican citizenship, their lack of US citizenship, or their illegality.
The status of illegality and its concomitant legal exclusion affected more individuals by the early 2000s than did the Jim Crow system in the US South at its height.21 Just as Jim Crow had imposed discrimination on the basis of race, new legislation in the late twentieth century increased discrimination against noncitizens and especially those who challenged their exclusion from the country by nonviolent direct action—that is, entering “illegally” or overstaying a visa. A study of Hispanic immigrants in rural North Carolina found that they felt that their lack of citizenship status, rather than their ambiguous place in the black-white racial hierarchy, was the main factor causing the discrimination they experienced.22
Recently, political scientist Jacqueline Stevens has suggested that discrimination on the basis of citizenship is incompatible with the notion of a liberal, egalitarian society, as much so as earlier laws and institutions that discriminated on the basis of religion or race. “The history of the United States, as for all countries, is one of a struggle between the voices on behalf of rationality and equality, on the one hand, and those urging the imposition of rigid distinctions based on ancestry and religion,” she writes.23 The idea of birthright citizenship—that people belong and should have rights only in the place they happen to be born—is the epitome of a “rigid distinction based on ancestry.” An immigration system that attempts to force people to reside inside the national territory in which they were born is in fact one of “global apartheid,” she insists.24
Restricting freedom of movement, as in apartheid, is a way of enforcing domination and maintaining inequality. This is true whether the restriction is based on something defined as religion, race, or the arbitrary fact of birthplace. On a global level, patrolled borders prevent the poor of the world from escaping the poverty they were born into and gaining access to the jobs, education, and health and welfare that are reserved for those fortunate enough to be born in the wealthy countries that border them. Global apartheid is enforced with walls, stadium lights, and guns. And global apartheid never talks about race, only nationality.
THE USES OF ILLEGALITY
Throughout most of human history, both states and economic enterprises have struggled to incorporate people into their projects.25 A strikingly different characteristic of the contemporary era is the extent to which access to states and to the right to work has come to be seen as a privilege. In some ways, this change reflects very real shifts in the functioning of states and economies, but in other ways, the differences are more apparent than real.
People have always needed to work for their subsistence. Until well into the twentieth century—and in some regions, into the twenty-first—this has meant, primarily, that they have needed access to land. Most people worked for themselves. Labor for others generally happened as a result of force: when one group conquered another, took control of land, or took prisoners of war, those conquered could be forced to work for their conquerors, often as slaves. “The use of socially marginalized communities for menial tasks helped maintain a higher standard of living and greater property ownership for settlers,” Rana wrote of the early United States.26 While creating privilege for settlers was characteristic of settler colonial societies, the creation and use of the socially marginalized for labor was pretty much a universal of civilization.
Would-be employers initially had to rely on state power to force people into working for them. Gradually, though, direct force was no longer required. In the nineteenth century, industrialization and colonialism separated more and more people worldwide from their lands and left them no option except wage labor. As access to land diminished, people started voluntarily moving to cities and seeking to work for others. Some sectors of the labor force gained access to the privileges and benefits of consumer society. Other sectors remained marginalized, creating what sociologists have termed a segmented or dual labor market. Even in the marginalized sectors, though, a lack of alternatives rather than force became the prime motivation for workers. Work, in fact, had become a privilege.
In her study of mass incarceration, Michelle Alexander notes that coerced labor has given way to mass unemployment among black men. First slavery and then Jim Crow were designed to make blacks work for the white-dominated economy. The dismantling of Jim Crow, she argues, coincided with the collapse of the American manufacturing sector and loss of the jobs that sustained African American communities. She cites sociologist Loïc Wacquant, who “emphasizes that the one thing that makes the current penal apparatus strikingly different from previous racial caste systems is that ‘it does not carry out the positive economic mission of recruitment and disciplining of the workforce.’ Instead it serves only to warehouse poor black and brown people for increasingly lengthy periods of time, often until old age. The new system does not seek primarily to benefit unfairly from black labor, as earlier caste systems have, but instead views African Americans as largely irrelevant and unnecessary to the newly structured economy.”27
The newly structured economy may not need to benefit unfairly from black labor, but it still needs to benefit unfairly from the labor of some socially marginalized community. In the late twentieth century, African Americans became less “cheap” because they gained legal rights, gained access to social services, and organized unions. Simultaneously, the sectors like manufacturing and government that had employed them collapsed, contributing to high unemployment among African Americans. But other sectors—“downgraded manufacturing and expanded service sectors,” in Nicolas De Genova’s study of Chicago—began to massively employ immigrant and, especially, undocumented immigrant workers.28 (Chapters 5 and 6, on the topic of working, go into more detail about the kinds of work undocumented people do.)
Here, however, I’d like to emphasize how useful illegality has been in the late twentieth-century reconfiguration of work from an obligation to a privilege. Illegality is a way to enforce a dual labor market and keep some labor cheap, in a supposedly postracial era. Illegality uses lack of citizenship—that is, being born in the wrong place—to make workers more exploitable. Once naturalized, the status neatly hides the human agency that forces workers into this marginalized status. It is not just coincidence that illegality has burgeoned in the postindustrial societies of the Global North at the end of the twentieth century. It serves a crucial role in their economies and ideologies.