Tuesday, September 26, 2017

Excerpted from: Kunal M. Parker, Making Blacks Foreigners: The Legal Construction of Former Slaves in Post Revolutionary Massachusetts, 2001 Utah Law Review 75-124, 75-84 (2001)(116 Footnotes Omitted)

How might one conceive of African-American history as U.S. immigration history, and with what implications for our understanding of immigration itself? The historiography of U.S. immigration has been heavily invested in producing an idea of immigrants as individuals who move from "there" to "here," with both "there" and "here" taken to be actually existing territorial entities. Even a cursory inspection of the titles of vastly different immigration histories--Oscar Handlin's The Uprooted: The Epic Story of the Great Migrations that Made the American People, Ronald Takaki's Strangers from a Different Shore: A History of Asian Americans, and Roger Daniels' Coming to America: A History of Immigration and Ethnicity in American Life--testifies to the centrality of spatial movement in historians' understanding of immigration. Over the years, African-Americans have been represented differently depending upon the kinds of spatial movement that immigration historians have elected to valorize.

Until recently, African-Americans tended to fare poorly within the historiography of U.S. immigration because of the weight immigration historians placed on voluntarism in spatial movement. As it emerged in the 1920s, the "Whiggish" historiography of U.S. immigration celebrated the figure of the immigrant as an individual who "chose" to move from "there" (the Old World) to "here" (the New World) in search of freedom, opportunity, and so on. Not surprisingly, this construction of the figure of the immigrant completely erased the African-American experience from immigration histories. Although subsequent immigration histories dropped the awkward "Whiggish" focus on the immigrant's quest for freedom and opportunity, the emphasis on voluntarism in movement persisted. Most immigration histories displayed a certain discomfort with representing the African-American experience as an immigrant experience.

Under the pressures of liberal multicultural inclusiveness, there has been in recent years a concerted scholarly attempt to link African-American history to U.S. immigration history by underplaying the requirement that an individual move voluntarily from "there" to "here" in order to qualify as an immigrant, and by emphasizing the simple fact that African-Americans moved from "there" (Africa) to "here" (the New World). This fact--the brute fact of spatial movement--is taken to be the key to representing African-Americans as bona fide immigrants. Thus, in his general overview of the history of immigration to the United States, Roger Daniels represents African-Americans as immigrants by asserting that "the slave trade was one of the major means of bringing immigrants to the New World in general and the United States in particular." In other words, while contemporary immigration historians have abandoned the focus on voluntarism in movement, which is an entirely salutary advance in our understanding of immigration, they have retained a view of immigration as a spatial movement from "there" to "here."

It is relatively easy to trace this specific linking of African- American history to U.S. immigration history to the pressures of liberal multicultural inclusiveness. Ideologues of liberal multiculturalism have placed immigration--understood as a spatial movement from "there" to "here"--at the heart of what they view as a robust American multiculturalism. For example, in a tract entitled What it Means to Be an American, Michael Walzer asserts:

This is not Europe; we are a society of immigrants, and the experience of leaving a homeland and coming to this new place is an almost universal "American" experience. It should be celebrated. But the celebration will be inauthentic and hypocritical if we are busy building walls around our country. Whatever regulation is necessary--we can argue about that--the flow of people, the material base of multiculturalism, should not be cut off. In this rendering, immigration--described in resolutely voluntaristic terms as "the experience of leaving a homeland and coming to this new place"--is viewed as the "material base" of a thriving American multiculturalism. Immigrants bring distinctive cultural identities with them when they move from "there" to "here." Not surprisingly, if African-Americans are to participate on equal terms alongside others in a multicultural order founded upon immigration, they must also claim--or have claimed for them--"the experience of leaving a homeland and coming to this new place." This is something that a focus on the brute fact of African- Americans' movement from Africa to the New World--their lack of voluntarism in this movement notwithstanding--can readily accomplish.

The problem with this particular linking of African-American history to U.S. immigration history is that it simply reproduces the dominant historiographical view of immigration as a spatial movement of individuals from "there" to "here." In so doing, it completely misses the highly significant ways in which African-American history can compel a radical rethinking of immigration itself. Through an examination of a fragment of African-American history--the debates surrounding the proper legal construction of emancipated slaves in the context of poor relief administration in late eighteenth century Massachusetts--this Article attempts just such a rethinking.

At this juncture, one might well ask why it is at all necessary to rethink the dominant historiographical view of immigration as the spatial movement of individuals from "there" to "here." After all, this view of immigration has a venerable lineage, sits comfortably with celebrations of liberal multiculturalism, and corresponds to our sense of what immigration is "really" all about. I would argue that such a rethinking is imperative because this view of immigration fetishizes territory in ways that feed into, and ultimately enable, pernicious contemporary renderings of the problem of immigration, the solution to the problem of immigration, and, perhaps most important, influential legal-theoretical justifications of the solution to the problem of immigration.

The contemporary American state's construction of both the problem of immigration and its solution reveals the extent of this fetishization of territory. Within official discourses and practices, the problem of immigration is that unwanted immigrants come "here;" the solution to the problem lies in keeping unwanted immigrants "there." Accordingly, the state devotes a significant portion of its energies to erecting fences to keep potential immigrants out, to patrolling its territory to weed out immigrants who have entered without its permission, to restricting resident immigrants' access to welfare on the theory that others will be discouraged from coming, and so on.

But the fetishization of territory also underpins influential legal- theoretical approaches to immigration that justify the contemporary American construction of the problem of immigration and its solution. Within these approaches, precisely because the immigrant is imagined as moving spatially from "there" to "here," the immigrant's claims upon the community--whether these consist of claims to enter and remain within the territory of the community or claims upon the resources of the community once within the territory of the community--might safely be deemed inferior, less deserving of recognition, or more susceptible to rejection.

It is worth exploring how the sense of the immigrant as one who moves spatially from "there" to "here" translates into the conviction that the immigrant's claims upon the community are susceptible to rejection. For the most part, we are not dealing here with explicit, crude, or vulgar nationalist arguments that might be dismissed out of hand. Rather, essential to this act of translation is the sense that the immigrant comes "here" as one who is already a member of an actually existing, legally recognized, territorial community. Unlike members of the community "here" who have no other community in which to turn, immigrants can always go "there" if refused admission "here;" always draw upon resources "there" if denied claims upon resources "here;" and always participate "there" if barred from participating "here." The possibilities assumed to be available to the immigrant "there"--typically, the country from which the immigrant comes--permit, sanction, and otherwise enable us to mark the immigrant's claims "here" as inferior to the claims of citizens.

Of course, given the vast resource differences that exist among the various countries in the contemporary world, any sense of comfort that we derive from knowing that immigrants can always levy claims upon their countries of origin is suspect. Nevertheless, this sense of comfort continues quite persistently to animate both the constitutional law of immigration and influential theoretical approaches to immigration. It rests upon some sense of the formal, legal equivalence of territorial states. In a world carved up into actually existing, mutually exclusive, and legally equivalent territorial states--a world in which memberships and places are represented by passports, all of which look alike, even if the memberships and places they represent do not--it remains possible to refuse the immigrant's claims uponthe community on the ground that every immigrant carries some passport that represents some country, a real place where the immigrant can levy his claims, even if everyone knows that those claims are likely to be frustrated there.

The idea that immigrants' claims upon the community might be refused at will on the ground that immigrants are citizens of another country has always informed the constitutional law of immigration. Within the register of the "plenary power doctrine" that underpins the constitutional law of immigration, the refusal of immigrants' claims has often adhered to the following logic. Precisely because immigrants are citizens of other countries, in all matters involving immigration, courts may safely transpose the redress of immigrants' claims from the realm of constitutional law to the realm of foreign relations. In this latter realm, the countries to which immigrants belong may be expected to take up immigrants' grievances with the United States. Accordingly, in Chae Chan Ping v. United States, a late nineteenth century case widely viewed as having inaugurated the "plenary power doctrine," the United States Supreme Court rejected the plaintiff's constitutional challenge to the first Chinese exclusion laws inter alia on the ground that China--the country to which the plaintiff belonged--could argue on the plaintiff's behalf in the arena of government-to-government relations. Other examples of judicial invocations of the protections that immigrants allegedly derive from their countries of origin as a basis for denying their claims in American courts of law could be cited, but are unnecessary for present purposes.

This constitutional abdication of responsibility for safeguarding immigrants' claims upon the community finds its analogue in influential theoretical approaches to immigration that derive comfort from the fact that immigrants come from some other country in order to justify their representation of immigrants' claims upon the community as inferior. First, proceeding from the view that "[t]he primary good that we distribute to one another is membership in some human community," Michael Walzer has famously argued that territorially constituted communities--by which he means countries--are not morally bound to admit strangers into their territory because their own associational activities take precedence over strangers' claims to admittance. However, the fact that Walzer assumes everyone to possess membership in "some human community" betrays his conviction that strangers refused admittance have some country to which they can return. This conviction is then further revealed in Walzer's recognition that the claims of refugees might be entitled to special consideration precisely because they have no country to which they can return: "Might not admission, then, be morally imperative, at least for these strangers, who have no other place to go?" Second, at the opening of her work on American citizenship, Judith Skhlar asserts that immigrants' claims for recognition of their historic suffering are less deserving of her attention than the claims of natives precisely because immigrants come from other countries: "The history of immigration and naturalization policies is not, however, my subject. It has its own ups and downs, but it is not the same as that of the exclusion of native- born Americans from citizenship." The idea here is that because immigrants--unlike natives--come from somewhere else, a real place where they can levy their claims, the claims of natives to citizenship take precedence over the claims of immigrants to citizenship. Finally, Peter Schuck argues that immigrants who fail to naturalize reveal a lack of commitment to American civic life that ultimately robs their welfare claims of legitimacy. In his view, immigrants' welfare claims are marked as inferior precisely because immigrants cling to the countries from which they come. As suggested by these legal-theoretical approaches to immigration, the understanding of the immigrant as one moving in space from "there" to "here"--with both "there" and "here" imagined as actually existing territorial entities--becomes critical to justifying a denial of the immigrant's claims "here." The fragment of African- American history explored in this Article seeks to challenge this understanding of the immigrant.

In late eighteenth century Massachusetts, the system of poor relief administration came closest to regulating what we recognize today as immigration; it sought to secure territorial communities against the claims of outsiders. Within this system, just as under contemporary immigration regimes, individuals were seen as moving in space from "there" to "here. " "There" and "here" were taken to be actually existing territorial entities, typically towns. The fact that an individual came from some town community ("there") became critical to how the town community he had entered ("here") would deal with his claims. Legal responsibility for the recognition of the individual's claims lay with the town community from which he came; accordingly, an individual's claims could be refused "here" because they could be made--indeed properly belonged--"there."

As they emerged from slavery in the late eighteenth century, African- Americans threw this entire system into a crisis. While they had been slaves, African-Americans had been the legal responsibility of their masters. As subjects of claims, enslaved African-Americans were thus invisible to the town communities in which they lived and worked. When they emerged from slavery, however, African-Americans suddenly surfaced as subjects of claims who came from no place in particular; there was simply no actually existing territorial entity upon which to pin the legal responsibility for their support. African- Americans were "here" without having come from "there."

How were the claims of these new subjects to be handled? While racial ideology had everything to do with how the claims of African-Americans were handled, this racial ideology acquired significant form through a strategy, the logic of which was determined within the framework of a system of poor relief administration that rested upon a view of individuals moving in space from "there" to "here." In entirely brazen attempts to refuse legal responsibility for the claims of former slaves, town communities sought to represent former slaves as "foreigners;" they assigned "foreign" geographic origins to former slaves. Former slaves thus came to be represented as coming from territorial entities outside Massachusetts, typically from a place called "Africa," so that town communities would not be burdened with the legal responsibility of recognizing their claims.

The problem that African-Americans emerging from slavery posed for the system of poor relief administration--and the geographic origins that town communities assigned to former slaves in order to deal with the problem--exposes the fetishization of territory underlying the dominant understanding of immigration as a process of spatial movement from "there" to "here." From it, we can draw two important conclusions. First, the fact that immigrants move in space from "there" to "here"--such that the problem of immigration and its solution come to be imagined in territorial terms--might not be the critical fact about immigrants. If the African-American experience in late eighteenth century Massachusetts is taken as a guide, the problem with immigrants is revealed to be not so much the fact that they simply show up "here," but the fact that they emerge at given moments as legally visible subjects of claims on what we might think of as a "landscape of claims." This landscape of claims does not necessarily correspond to the territory of the community. It corresponds rather to the public register within which individuals arelegally recognized (and thus become legally visible) as subjects of claims upon the community. As long as they were slaves--and thus the legal responsibility of their masters-- African-Americans did not pose a problem to the town communities in which they lived and worked. This was precisely because they were legally invisible on the landscape of claims. African-Americans became a problem for town communities-- communities they had physically neither left nor entered--only once they were no longer slaves, no longer the legal responsibility of their masters, and thus legally visible on the landscape of claims.

Understanding the problem of immigration as one of managing immigrants' legal visibility on the landscape of claims--rather than as one of managing territorial boundaries--draws attention to the role of the state in constantly making immigrants legally invisible on the landscape of claims. Understood this way, keeping immigrants outside the territorial boundaries of the community appears to be only one--albeit an extremely important one--among various strategies of rendering immigrants legally invisible as subjects of claims. Other viable strategies include resolutely maintaining millions of immigrants in a state of "illegality" so that they do not dare articulate claims upon the community, simply refusing to recognize "legal" immigrants' claims for welfare, and so on.

Second, and more important, the state's invocation of the immigrant's coming from an actually existing territorial entity outside the territorial boundaries of the community as a basis for refusing the immigrant's claims upon the community is revealed with breathtaking clarity as the pure effect of a prior desire to refuse the immigrant's claims upon the community. Although African- Americans had in fact come from slavery, town communities assigned them geographic origins outside Massachusetts--in a place called "Africa"--with a view to representing them as "foreigners" who were the legal responsibility of "somewhere else." The object was purely to deny legal responsibility for former slaves. This assignment of geographic origins to African-Americans should be read not as underscoring a basic mismatch between former slaves and the immigrant who "really" comes from "somewhere else," but rather as underscoring the politics routinely underlying the construction of the "somewhere else" from which the immigrant supposedly comes. The point is that the state invokes immigrants' origins in some place outside the community when--and insofar as-- this invocation serves to justify refusing the immigrant's claims upon the community. If there is an acceptance that the state invokes the "there" from which immigrants come to justify its refusal of immigrants' claims--which is not to deny that immigrants do "in fact" come from outside the territorial boundaries of the community--there might at least be a revision of influential theoretical approaches to immigration that uncritically invoke immigrants' places of origin as a basis for justifying a refusal of their claims upon the community.

There have, of course, been some attempts to link African-American history to immigration history through a focus on the legal construction of free blacks, most notably in the extremely valuable work of Gerald Neuman. In his excellent survey of immigration restriction in the early Republic, Neuman describes (1) the ways in which several antebellum states, both free and slave, barred the entry of free blacks and (2) the ways in which the slave states sought to compel free blacks to leave slave territory on pain of incurring more or less horrific penalties, including re-enslavement. However, Neuman operates with precisely the territorially-driven understanding of immigration as a spatial movement from "there" to "here" that this Article eschews. For his purposes, "a statute regulates immigration if it seeks to prevent or discourage the movement of aliens across an international border, even if the statutealso regulates the movement of citizens, or movement across interstate borders, and even if the alien's movement is involuntary." Not surprisingly, Neuman does not seek to advance our understanding of immigration through an exploration of African-American history in the way that is attempted here. By contrast, historians who have written about the free black experience in the antebellum United States have for the most part focused on themes such as race, the preservation of slavery, and so on without seeing the free black experience as a particular species of immigrant experience that might afford a critique of the pernicious fetishization of territory that underlies the contemporary construction of immigration.

It should be pointed out at this juncture that this Article cannot pretend to capture the full complexity of the African-American experience of emancipation in late eighteenth century Massachusetts. Fortunately, it is possible to refer the reader to Joanne Melish's brilliant intellectual, social, and cultural history of the "problem of emancipation"--and the corresponding development of racial ideology--in late eighteenth century New England. Among other things, Melish argues convincingly that, decades before the full-scale emergence of the colonization movement, the successfully realized desire to rid New England of slavery was accompanied by the less successfully realized desire to rid New England of those who had formerly been slaves. White New Englanders were never able to remove black New Englanders from their midst. However, they were able to enact their rejection of black New Englanders in all sorts of ways; the attempt to assimilate emancipated slaves to the legal status of "foreigners" was one such way. . .

. Associate-Professor of Law, Cleveland-Marshall College of Law, Cleveland State University. This Article was written while I was a Visiting Research Fellow at the American Bar Foundation (1999-2000). Earlier versions of this Article were presented at the Speaker Series at the American Bar Foundation (Spring 2000) and the Annual Conference of the Law and Society Association (May 2000). I would like to thank (1) the audiences at the American Bar Foundation and the Law and Society Association Annual Conference for their reactions to the Article and (2) Nicholas Blomley, Indrani Chatterjee, Ruth Herndon, Bonnie Honig, Ritty Lukose, Patricia McCoy, Mae Ngai, Joanne Melish, Annelise Riles, James Sidbury, Christopher Tomlins, and Leti Volpp for their comments on earlier drafts of this Article. I would also like to acknowledge both the financial support of the American Bar Foundation and the Cleveland- Marshall Fund and the research assistance of William Knox. Special thanks go to the personnel of the Massachusetts Archives (especially Stephanie Dyson) and to Elizabeth Bouvier of the Massachusetts Supreme Judicial Court Archives.

. To avoid any confusion, I should make it clear that I am not suggesting that historians have written immigration histories that are organized thematically around spatial movement. Rather, I am drawing attention to the fact that spatial movement has featured prominently in historians' understanding of how an immigrant comes to be an immigrant.

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