Immigration

‘This Is Not Who We Are,’ Said Someone With No Knowledge Of U.S. History

'Those who cannot remember the past are condemned to repeat it.'

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As we continue to debate the Trump Administration’s “zero tolerance” immigration policy, and whether or not it exists, who started it, and a whole host of other things that ought to be obvious if facts existed in the United States….

I’ll start again.  When all is said and done, the thing that I’m most tired of hearing is “this is not who we are.”  I understand the notion that people saying this would like to appeal to our moral fiber, to suggest that really “this is who we ought not to be.”  But today, I engage in a brief history lesson for those who might not know exactly what the U.S. has done to people, whether its own or not, over the course of its history.  In other words, Santayana was right:  “Those who cannot remember the past are condemned to repeat it.”

The “zero tolerance” policy of the Trump administration is meant to have a deterrence signal: Immigrants not welcome.  Or as President Trump said, “we’re closed.”  The whole theory of this policy is that when word spreads that we rip children out of your arms if you show up at the border, then people will not try to enter the U.S. illegally.  However, few are masters of U.S. immigration law, and the result will likely be that those who may seek asylum may suffer hardship in their homeland to avoid the U.S. baby-snatchers.

This isn’t the first instance in which draconian deterrence has been used.  Recall the limitations that FDR had in place during the Great Depression.  Few visa applications were approved, and any immigrant “likely to be a public charge” was denied entry.  For Jews fleeing Germany, the “deterrence signal” had a profound effect, namely death.

Some have called the DHS facilities for children “concentration camps.” Concentration camps are nothing new to the United States, either.  No, I’m not just talking about horrific Japanese internment during World War II, although that can be, and has been, described as a most certain hell.  Upon taking over the Philippines in the early 1900s, the U.S. resorted to concentration camps.  As one commander described in his report to Congress:

Upon arrival I found 30 cases of smallpox and average fresh ones 5 a day which practically have to be turned out to die. At nightfall crowds of huge vampire bats softly swirl out on their orgies over the dead. Mosquitoes work in relays and keep up their pestering day night.  There is a pleasing uncertainty as to your being boloed before morning or being cut down in the long grass or sniped at.  It way out of the world without a sight of the sea in fact more some suburb of hell.

The U.S. even has had forced marches in its history, such as the 1500 Dakota women and children who were marched 150 miles to Fort Snelling after the U.S. Dakota War of 1862.  As a letter written at the time conveyed: “I have learned that orders have been issued to convey all the Indians who have not been convicted to the neighborhood of Ft. Snelling.  They will probably take up their march tomorrow.  The men who have been convicted are to be taken to Mankato for what disposal is not made known.  It is a sad sight to see so many women & children marching off — not knowing whether they will ever see their husbands & fathers again.”  During the march, a band of settlers formed an angry mob.  One person witnessed “an enraged white woman . . . snatch a nursing babe from its mother’s breast and dash it violently to the ground.”  The baby was returned to its mother, but it later died and its body was “quietly laid away in the crotch of a tree, according to Dakota custom.”

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The first lesson of history, then, is that which I learned from Battlestar Galactica: “All this has happened before, and it will happen again.”  History doesn’t require parity of parties in every iteration, only that circumstances be sufficiently similar to let yet another iteration of an atrocity go on repeatedly.

The second lesson of history is that our faith in our judicial institutions to stop atrocities from happening is misplaced.   We all know the names of those terrible Supreme Court cases:  Korematsu, Dredd Scott, Plessy v. Ferguson, Buck v. Bell, etc.  What these cases teach you is that the Supreme Court is fallible, and sometimes is severely on the wrong side of history.  In many instances, the Supreme Court turns out to echo the contemporary fear, hatred, xenophobia, and racism of the time.

The third lesson of history is that sometimes Congress refuses to stop atrocities despite protestations from members of Congress that they like things like freedom of religion or speech.   Congress is frequently a reactionary institution, which passes laws after crisis that themselves become the tool for commission of atrocities.  In fear of the Red scare, for example, Congress passed the McCarran Internal Security Act of 1950, which would set up a system of concentration camps for political prisoners.  Let’s not forget that the 100-mile border exception to due process was crafted by statute and interpreted by DOJ regulation.  This list would be incomplete without mentioning the Public Law 503, the Indian Removal Act, the Alien and Sedition Act, etc.

I mention all of this not to make you feel worse about the screaming children in the audio, or the children in fenced areas we aren’t supposed to call cages.  I mention it because saying “this is not who we are” ignores the fact that history tells us, and as Sarah Kendzior eloquently points out, “If your words are not matched in deeds, this is exactly who you are.”  That means a little soul-searching and navel-gazing is in order.  There is a reason this is happening, and it isn’t the work of just one orange-haired President.

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LawProfBlawg is an anonymous professor at a top-100 law school. You can see more of his musings here.  He is way funnier on social media, he claims.  Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

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