We are to build structures and conduct our daily lives with the idea that every person is loved specially and equally by God and thus is due never to suffer affront to his human dignity. This notion is reiterated constantly by Pope John Paul II, and is especially relevant to our treatment of immigrants in the United States. I was grieved to see that Edwin Sabillón, a 13 year old native of Honduras in police custody in New York, was demonized by the press because he had fabricated details about his tragic life. He stated that his mother had abandoned him and that his father had died in Hurricane Mitch, and that he had a horrendous journey to the United States. Well, the truth came out that his father had abandoned him and had contracted AIDS, his mother was nowhere to be found, and he had been raised by his grandmother until deciding to come to the United States. This journey, for all undocumented immigrants is horrific, grueling, and dangerous. Once in the United States he learned that his aunt in Hialeah, Florida, did not have the means to care for him. It turns out his assumably very poor grandmother was the only one willing to take him back. It seems to me the truth of his life is every bit as tragic as any story he may have fabricated. Of course, by demonizing this “bad boy,” we also justify not helping and forgetting about those Hondurans who continue to struggle between starvation and hope by securing that day’s meal.
I have been asked to review, or rather discuss, a small book that is structured as a symposium on the constitutionality of the informally named 1996 Immigration Laws. It is called A Community of Equals: The Constitutional Protection of New Americans (Boston: Beacon Press, 1999). The symposium leader, esteemed law professor Owen Fiss, proposes the thesis, part I, which experts in the fields of political science (as it relates to immigration policy) and law(as it relates to the Constitution) respond to and critique, part II. Beyond their interpretation of the Constitution and national policies some of the respondents propose innovative solutions to the “immigrant problem” (which dates back to 1492, at least). Part III is Prof. Fiss’s response and shoring up of his anti-subjugation argument.
In his thesis, Professor Fiss argues that the current legal strictures put on immigrants, documented and undocumented, affected largely by the 1996 immigration laws, animates the creation of a subclass of person in the sovereign United States. The 1996 laws, among other restrictions, took away food stamps and financial support to aged and disabled immigrants, documented or not. In addition, the laws stripped the constitutionally ensured due process of law and judicial review for immigrants just entering the country-frequently, not-so-high-ranking immigration officials have decided someone does not have a legitimate case for asylum. Furthermore, the 1996 laws made it harder to sponsor new immigrants by raising the minimum income needed to sponsor them, effectively cutting out over half of the individuals of families that could have sponsored relatives (mostly Hispanic). Fiss astutely notes that subjugation, the creating of a caste class, is expressly prohibited in the Equal Protection Clause of the Fourteenth Amendment. This is the position taken by the majority of the Supreme Court in the 1982 case, Plyer v. Doe, in which the education of undocumented children in Texas was the point of contention. In ruling for these children’s education, Judge Brennan wrote in the majority opinion that denying these children education had the possibility of creating a permanent subclass of illiterates.
In articulating his argument, Fiss distinguishes between social and political benefits. He believes only the former should be granted all persons in the United States, regardless of immigration status. Social benefits include emergency medical care, primary and secondary education, and some welfare benefits (food stamps, financial support to aged and disabled person). This, he argues, would avoid creating a subclass. He also alludes to allowing undocumented immi-grants some legal way to work so that they are not forever at the margins of the world’s wealthiest country. (As one who works with immigrants, I assure, Fiss is correct on this observation.) The most significant political benefit he would reserve for citizens, that is “full” members of the Union, is the right to vote. [Note: many undocumented immigrants pay a citizen’s share of taxes without ever reaping the benefits, because of false social security numbers.] The point in his argument most criticized by detractors and supporters alike is his concession that would permit the militarizing as much as possible of the border(s) to deter more immigrants from entering.
The book cannot help but compel the reader to register his opinion in light of the insights of the “experts.” As a person shaped by his religion first and his nationality second, I began to ask myself several questions. The most pronounced is, “How do I reconcile my Catholic faith, which is not mentioned in the book, with the Law of the Land, which is the lens through which our national identity is to be lived by each citizen, as it concerns the treatment of immigrants. It is what is not considered in the book that most intrigues and helps me to understand my relationship to persons who are immigrants. The book does not make use of the resources of faith, be it Christian, Muslim, or Jewish, because these are not at the writers’ disposal in the Constitution or any branch of government. I agree, with Gandhi, in the definite separation of religion and state. I also concur with this great statesman, all the saints, and Jesus Christ that one should never forsake his religion for the mere demands of the state. This is true whether the state be one’s own (for Jesus, the Sanhedrin), or an occupying government (for Jesus, the Romans). I could not help but think for some of the respondents the absence of the consideration of religion (nature abhors a vacuum) caused them to turn to the Constitution, or the State, as the source of salvation of “us” and “them.” Mr. Aleinikoff is content to point out that Fiss should have emphasized the anti-discrimination principle of the Fourteenth Amendment instead of the anti-subjugation principle, without promoting personal response to a real immigrant’s travails. Mr. Freeman emphasizes the electorate’s. that is, the people’s, responsibility to decide the fate of immigrants without giving any instruction into how “the people” are to be truly informed about deciding another people’s fate (the immigrants’!). If I may be so bold, the treatment of any human being in any society is a matter of love (instructed by religion, in my case, the Gospel) guiding the law (the Constitution) so that a person’s dignity is never compromised. Is this how we are treating our neighbors, whether they be from the United States or Samaria, er…, I mean Mexico? St. Paul tells us following the law will save no one (Romans 7).
This is not to say that Prof. Fiss and many of the respondents appealed solely to enlightened interpretation of the Constitution. They emphasized a moral sense of duty to treat non-citizens with a certain measure of dignity. That is to say, immigrants should be afforded social and, according to one respondent, Ms. Gordon, political benefits if they are on U. S. soil. In developing this sense of moral duty, some respondents emphasized the history of this country-it is a country founded by and built upon immigrants. Others made vague references to the harsh conditions the immigrants leave,, and the death-defying journey they make to come to the U.S. and try to support their families: reaffirming that the best jobs for the working poor in Mexico and Central America are worse than the worst jobs here.
Still, the essayists’ moral scope lacked at least two ingredients of a moral vision that leads to our action on behalf of the less fortunate: 1) Our responsibility in causing the poor of Mexico and Central America to immigrate because of our all-consuming lifestyle (from chicken wings to Wal-mart weekends) and 2) the relationship of moral action to human freedom, a freedom which can only exist if every person’s dignity is fought for and preserved. We can find the seeds of the latter notion in the opening lines of our Declaration of Independence: “We hold these truths to be self-evident that all men are created equal…” While it is true the founding fathers of the U.S. did not themselves act upon this belief (hence, slavery), it cannot be denied they dreamed it, by God’s grace.
It is Emmanuel Mounier’s philosophy of personalism which rightly orders morality to the law with the ultimate end being the freedom of every human person: “Mediating as [law] does between theory and practice, between the absolute inwardness of moral choice and the propagation of the moral idea to the general public, the law directed to freedom, is the instrument of our progressive liberation and of our deepening fellowship in a universe of moral persons. But the tension between the ethic of the law and the ethic of love places the vast field of personal morality between the banality of the rule and the paradox of the exception; between the patient transformation of everyday life and the wildly reformative efforts of exasperated freedom” (Personalism, University of Notre Dame Press, p. 77). If our moralizing does not lead us to personally help those who suffer, whomever they are, and take account of our role in their suffering, as with immigrants, it is pharisaical. Morality, being both a personal and communal matter, goes to the trunk of the three government branches, the people! If our roots are not in the selfless loving of our poor neighbors, we are part of a dying tree.
At least one respondent, Ms. Young, was willing to admit the implications of transnational connections. That is to say, that one reason immigrants come is because U. s. Companies provide poor wages in their clothing and appliance factories, banana fields, and car and computer assembly lines. She fails, however, to recognize that her being in Pittsburgh makes her no less connected to these immigrants than someone in the Southwest United States. I invite each reader to check their clothing, appliance, and car labels to help visualize our connection to our brothers and sisters south of the order. It is no coincidence that since the passing of NAFTA the border patrol has been tripled and deportation proceedings have gone up 100% in this past year alone. We must maintain a slave labor source even as our favorite brand names cross the border.
Globalization is not just about expanding the market to benefit stockholders, business owners, and a few landowners and politicians in developing nations. It is about our responsibility to provide a living wage and help with infrastructure (schools and medical care) to the same developing nations, on the same scale. Commendably, Mr. Tushnet lobbies for the opening of borders to allow immigrants to work here. He anticipates the eventual equalizing of wages across the Americas. This is the most love-filled idea presented in the book.
Certainly the freedom provided for by our great Constitution must be tempered by our failure to act out of love for our poor, hard-working brothers and sisters here and to the South. Immigrants risk their lives and their “inalienable rights” by crossing an arbitrary boundary of lifestyle sustained by those who do not cross. Each immigrant is a person as is each U.S. citizen, created by the same God, deserving of the same love (i.e., food, clothing, shelter, a living wage, and freedom). As far as I know, we are still “one nation under God.” A god who will not ask us our citizenship status or how well we interpreted the law, but rather how much did we love? Did we feed the hungry, clothe the naked, welcome the stranger, bury the dead?
Houston Catholic Worker, Vol. XIX, No. 5, September-October 1999.
