Who Owns America?
July 30, 2010, ABF news, Los Angeles Daily Journal
ABF Research Professor Christopher Tomlins published commentary in the Los Angeles Daily Journal, July 29, 2010:
Arizona’s attempt to pass and enforce its own immigration law has prompted much local and national debate — reasoned, impassioned, occasionally ugly. Debate, even whenheated, always raises interesting questions. Sometimes answerscan be found in strange places. History, for instance. A recent Anaheim demonstration in support of Arizona’s law and its declared objective to halt illegal immigration raised an interesting — and very old — question. Who belongs here? Who owns America? The question came via two members of the Brown Berets, a Mexican American organization that dates to the Chicano rights movement of the 1960s. Speaking for La Raza — the mestizo fusion of European, Indigenous and African peoples that began in the 16th century Iberian New World empires — the Brown Berets “invited” Americans of Northern European heritage to return to Europe. “This is America,” they told those rallying in Anaheim, and America did not belong to them. They were too white. “You don’t belong here. Go back to Europe.”
Like so much law, immigration law is about jurisdiction. Arizona’s lawhas posed one kind of jurisdictional question — whether or not a state can enforce its own immigration regime without infringing upon powers reserved to the federal government. But the federal claim to exclusive defi nition of the legalities of immigration simply raises the same jurisdictionalquestion at a more basic level: does occupation of a piece of territory carry with it a right to refuse access to a subsequent entrant, to declare who is a legal immigrant and who isn’t, who can enter and who cannot?
The Brown Berets and those rallying in Anaheim, and the state of Arizona and the federal government, all agree that prior occupancy vests rights to control access in the occupant. What they are disagreeing about is who has priority — who gets to exercise the right to refuse. So far as the federal government is concerned, it has exclusive jurisdiction. According to the Justice Department’s pending suit to block enforcement of the Arizona law, “The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.” So far as Arizona and those supporting it are concerned, a state can take action to protect itself andits citizens, as Gov. Jan Brewer has stated, “from violent Mexican drugand immigrant smuggling cartels.” The state can police the boundaries of the terrain it occupies. So far as the Brown Berets are concerned, it is up to the original indigenous occupants, and their descendants, to say who can enter America and who can’t.
In an early 21st century beset by terrorism and global economic crisis, it is diffi cult to imagine fl ows of population unrestrained by authority. We embrace many freedoms, but freedom of movement across frontiers (of people, as opposed to goods) isn’t one of them. Witness the fear of hordes of Polish plumbers menacing the new Europe of open borders stoked by British and French tabloids only a few years ago. It is interesting to refl ect, then, on how much of the immigration that built this nation of immigrants was, by our standards, “illegal” — unrestrained.
Four hundred years ago, when English colonizers began venturing westward to create settlements on the North American mainland, they sought no permission save that of their own monarch, who claimed a vaguely defi ned empire somewhere in the North Atlantic. Elizabeth Tudor, and after her, James Stuart, granted the adventurers leave to exit England. After that they were on their own. On landfall they built crudely defended settlements and resisted clear indigenous indications that their presence was unwelcome. They had every right to be there, they told themselves, for there was room enough for all, and land was meant to be used, not — as it seemed to them — left to lie idle. And by the law of nations (a European ideal, part natural law, part biblical, part Roman in origin) the existing inhabitants had no right to refuse strangers who came to trade with them, or to preach to them, or to cultivate their vacant places.
The English were prepared to take what they wanted by force, althoughbeing practical men they recognized that it was usually cheaper to acquire the land they craved by offering “some consideration” than by killing for it. Once land had been obtained, whether by guns or money, the English began importing population — free and enslaved — to fi ll what they had won. They sought population avidly, for they knew population was the multiplier for the wealth they sought. They manned no check points, inspected no passports, granted no entry visas. They did not particularly care where the people they “imported” came from, how old they were, whether they came willing or unwilling, sickly or well. The one law they all obeyed was the law of “loco-motion” — of movement.
So matters would continue for the better part of 300 years. Populationentered eastern ports and fl owed westward. Often those who moved westward became squatters, trespassers, “in defi ance of law” as the eminent American historian Willard Hurst wrote in 1956, “without color of title other than that created by the impact of a popular feeling that would not be denied.” Our romance of American history celebrates that popular feeling as “enterprise,” we don’t condemn it as illegal migration. Hurst called it “the release of energy.”
People on the move always make those who have settled down anxious, even when those who have settled down are themselves simply the previous generation of people on the move.
Nomads everywhere excite suspicion. Many of the earliest English migrants to North America had been “the strolling poor” in England— vagrants, which is to say criminals by the English law of their day. When they were shipped westward to America they died in droves, both during the voyage and after. But at least no one sent the survivors back. When those who want to move in and settle among us are also of different races or ethnicities, our fears tend to run riot. The Irish, Jews, Southern and Eastern Europeans, Africans, Asians and Mexicans have all been the subjects of exclusion of one kind or another at one time or another. This is how, in fact, our immigration laws fi rst came about — not out of some original rational desire to manage inclusion but out of an impulse to refuse it. In the process we have usually forgotten that we were once on the move ourselves. We have “settled down,” occupied a place, and decided our occupancy gives us title to exclude.
No one can now recreate some pristine New World moment before the European empires arrived. Those who speak for La Raza should remember — proudly — that they speak for mixture, the mixture of migrant and indigenous peoples. We can remind them — respectfully — that even the indigenous were once migrants. But while we are reminding others of their origins the rest of us have some remembering of our own to do, about ours. We should try to remember how we came to be here, where we have settled down; and how, at some point, somewhere, we (or our ancestor) were most likely a poor stranger from elsewhere — someone who could easily have been refused entry if our standards had been applied, but was not.
Laws that manage the process of including newcomers make sense. Laws that make coming into a crime do not because America “belongs” to no one. That is how we all ended up here.
Christopher Tomlins is Chancellor’sProfessor of Law at the University of California, Irvine and a research professor affi liated with the American Bar Foundation, Chicago. His book, “Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580-1865” will be published in September by Cambridge University Press.
This article is posted with the permission of Daily Journal Corp. (2010).
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