Vol. 26 No. 1 (May 2016) pp. 16-21
MAKING FOREIGNERS: IMMIGRATION AND CITIZENSHIP LAW IN AMERICA, 1600-2000, by Kunal M. Parker New York: Cambridge University Press, 2015. 259 pp. Cloth $99.99 ISBN-10: 1107030218 Paper $24.99 ISBN-10: 1107698510
Reviewed by Anna O. Law, Department of Political Science, City University of New York, Brooklyn College. Email: firstname.lastname@example.org
On the subject of writing, the Haitian-American writer Edwidge Danticat once said, “When you write, it’s like braiding your hair. Taking a handful of coarse unruly strands and attempting to bring them unity” (1995, 220). Indeed, this is also the goal of academic writing, to bring a jumble of ideas, data/evidence, and theories into some semblance of accord. Professor of Law and historian Kunal Parker has managed to accomplish just this task by combining a wide range of literatures that usually stand apart under one theory, into a concise and lucid volume.
Making Foreigners manages to contribute to the scholarship in the areas of: U.S. immigration law and policy, Latino Studies, Native American Studies, African American studies, women’s studies, Asian Americans, and studies of the poor. What the groups represented in all these literatures have in common is that at one time or another, the American state (both national and subnational) has purposely treated them as if they were immigrant foreigners, also known in the U.S. immigration and nationality code as “aliens.” Indeed Parker is challenging the traditional understanding of “alien” and “foreigner” as the people who come from a place outside of the U.S., into U.S. territory and, citizenship as a package of rights to be conferred on outsiders by insiders upon arrival.
His entire thesis is that geographically reliant conceptions of citizenship, nationality, and foreignness are wholly inadequate to capture the actual U.S. pattern and practice of making whole groups of insiders into outsiders while still in their own country. Parker maintains that traditional conceptions of “foreigner” and “alien” elide the U.S.’s physical relocation and deportation of insiders, the restriction of movement within and across U.S. territory of insiders, the “indiscriminately mingling of citizens with aliens” for bureaucratic expediency or in time of war, “the subjecting of domestic populations with the legal disabilities comparable to those visited upon aliens”, and the refusal to recognize that long-term residents may at some point have claims to being insiders despite not having the proper immigration documents (p. 5). All of these, Parker submits, are examples of the American state rendering insiders foreigners within their own nation.
Chapter 2 begins in the colonial period and tracks the diverse range of immigrants coming to the British colonies, most of them in unfree statuses; these groups included African slaves, indentured servants, redemptioners, and convicts. Despite the generousness of the JUS SOLIS birthright citizenship grant to most white ethnics, the benefits of citizenship were withheld to native-born blacks and Native-Americans. Moreover, the poor and free blacks were greatly restricted in their movement within and across U.S. territory. Following the logic of Elizabethan poor laws, the poor were designated as “foreign” not based on [*17] whether they were actually from an overseas destination, but based on whether they were “settled” in a locality and therefore the financial responsibility of the town.
Chapter 3 describes the conferral, manipulation, and ultimate withholding of American citizenship to certain groups in the early American Republic by the states. By practical necessity, because the new nation had to populate itself, the U.S. conception of citizenship was more liberal than the British version. While the latter conceived of nationality and citizenship as immutable and perpetual loyalty to the sovereign, the American version of citizenship embodied a consensual embrace of citizenship and a comparably generous JUS SOLIS birthright citizenship policy for those born on U.S. soil. Quickly however, circles were drawn excluding groups from these benefits. Native Americans and blacks, despite their birth in U.S. territory, were deemed “aliens” or mere “inhabitants” (p. 32). Meanwhile, native populations of free blacks and the poor were severely restricted in their movement and residence as state after state, in both north and south, passed laws about when they could travel through state territory and where they could live. All of these laws were vivid illustrations that in the U.S. example, the federal system did not mean more freedom for politically vulnerable minorities; it simply multiplied the possible permutations of exclusionary and restrictive policies by the states and localities beyond what one national government might be able to perpetrate under a unitary system (Law 2014, p. 108).
The whole pre-Civil War period, part of the “lost century” of immigration law, was a time when states, not the national government, exercised virtually exclusive authority over immigration policy, including having the ability to deport and banish both immigrants and the native-born (Neuman 1993). When hearing the terms “exclusion,” “deportation,” or “removal,” contemporary readers today might assume these terms pertain to the unfortunate immigrants who are being excluded or expelled from U.S. territory. However, in Chapter 4, Parker details the exclusions and deportations that groups of “internal foreigners” have been subjected to. Free blacks, whether native-born or foreign, were subject to a phalanx of laws in both northern and southern states that prohibited their movement and stay in certain states—even if they were returning to their own home state after they had been freed from slavery and had traveled out of state temporarily. As Parker noted, these laws made clear, “there was to be no place for blacks in the United States once they were not slaves” (p. 97).
Chapter 4 also details the laws and policies of the state of Massachusetts, which were particularly insidious about “disowning their own poor and passing them off as foreigners” (p. 110). In Massachusetts, driven by crass fiscal incentive, town officials artificially inflated their numbers of the “immigrant” poor that were eligible for reimbursement from the Commonwealth, but were also subject to the euphemistic “resettlement” either outside of Massachusetts, or outside of the U.S.
Chapter 5 picks up after the Civil War and traces the rise of the national immigration bureaucracy, which was only possible after slavery was taken off the table and the southern states stopped resisting federal control over policies regarding the freedom of movement. Meanwhile, northeastern states no longer wanted the responsibility to regulate immigration as one by one the Supreme Court invalidated their policies to protect themselves from the immigrant sick and poor (Law 2014). As Parker points out [*18] though, the federalization of migration policy did not mean a liberalization of it. While some egregious forms of rendering natives foreign such as the states’ ability to declare blacks noncitizens was overturned by the Fourteenth Amendment, new forms of discrimination emerged with different targets. Whereas state and local exclusion laws via a haphazard patchwork screened out the poor, sick, convicted, or black (both slave and free), for the first time in the nation’s history, the national government singled out an ethnic group for exclusion from the U.S. with the passage of the Chinese Exclusion Act of 1882.
Even more ominous for immigrants and Native Americans was the doctrinal development rise of the ideas “plenary power” and “national sovereignty” during this period. These two concepts, first deployed against Native Americans in U.S. V. KAGAMA (1886) and a few years later against Chinese immigrants (and really all immigrants) in CHAE CHAN PING V. U.S. (1889) and FONG YUE TING V. U.S. (1892), stood for the propositions that inherent aspects of a sovereign nation’s existence is that it, specifically via Congress, has the right to determine who may enter its borders and to regulate the status of persons and entities falling within its geographical jurisdiction. In the Native American’s case, the concept of congressional plenary power, a concept without basis in the U.S. Constitution, could override Native American’s status as a U.S. citizen (p. 134). In the instance of immigrants, congressional plenary power could override an immigrant’s due process protections of any kind and suspend any claim of equal protection (at least in entry/exit decisions).
Chapter 6 details the early twentieth century’s inconsistent racial construction of federal naturalization policy that sought to grant citizenship to “white” persons. The period also marks the first introduction of numerical based national origins quotas, undergirded by eugenic theories of the supremacy of western and northern Europeans over all others. Meanwhile, the now familiar practice of “disowning” one’s own, or “making Americans foreigners” continued with policies endorsing racial residential segregation in the north, U.S. born women’s loss of their citizenship upon marriage to an alien via the Cable Act, the repatriation of both Mexicans and Mexican-Americans, and the selective granting and refusal of citizenship to persons residing in U.S. territorial holdings in the Philippines, Guam, and Puerto Rico. What becomes evident is the American state’s ad hoc and capricious nature of the grants and withholding of the rights and privileges of citizenship.
Chapter 7 suggests that the rights revolution of the 1960s was not a tide that lifted all boats and even as old forms of discrimination were erased, new barriers were erected. On the one hand, the ability of states to bar persons from voting or strip them of formal citizenship decreased dramatically. On the other hand, “the gulf between citizen and alien had never been wider” and one of the most vulnerable classes to emerge post-1960s were aliens, especially undocumented immigrants (p. 117). As well, lawful permanent residents’ statuses were made far more precarious as new laws were passed making it easier to deport them when they committed even minor crimes and these laws also severely limited their access to federal court review of their cases. Also, the staying power of the plenary power doctrine in immigration law ensured that the federal government could continue to treat aliens in ways that would be constitutionally impermissible if directed toward citizens in a variety of legal contexts, [*19] from denying them free speech and freedom of association to withholding even minimal due process during deportation/removal proceedings. Parker notes the Supreme Court only very sporadically stepped in to protect alien rights as it did in GRAHAM V. RICHARDSON (1971) and PLYLER V. DOE (1982), and several other instances that were in the context of immigration federalism cases where federal preemption was invoked.
In the Coda, Parker restates his thesis that the history of the U.S. immigration and citizenship has focused primarily on “the story of those coming from the territorial ‘outside.’” He instead wishes to redirect the inquiry to “rendering insiders foreigners” or how those on the “territorial ‘inside’ have been subjected to the same travails” as aliens hailing from foreign countries (p. 221). He argues that the gulf between foreign-born and native-born, insider and outsider rather than narrowing has instead “grown wider over time” and he cautions readers that, “Strangers… can be made at home and at the border” (p. 230).
Arguably, the individual histories of discrimination and oppression of Native Americans, women, African Americans, Latinos, and the poor are not new, but the framework Parker places these into, the interrogation of who is made into a “foreigner”, when, and under what circumstances, is original. While the scholarship on African American history and U.S. immigration history usually remain discrete, and indeed, combining them into one study is controversial, Parker does it effectively and without fanfare; although, he never stops to theorize about the implications of it. Instead by deploying the sheer force of historical evidence, he quiets those who may protest that the experiences of voluntary migration and the forced migration of slaves are incomparable. Objections usually run along the lines of, “Your ancestors may have immigrated freely, but my ancestors arrived in chains” (Paraphrasing Magee 2009, p. 273). What Parker’s analysis has done is to point out conceptual commonalities and shared experiences between groups whose ancestors arrived voluntarily and those who did not. At a time when the public discourse around immigration issues is at an all time low and politicians seemingly seek to divide rather than unite, his research has practical implications beyond the academy for reimagining immigration and ethnic histories, and for forming contemporary political coalitions.
To achieve coverage of so many groups and so much historical ground, from 1600-2000, a very large swath of time even by the standards of American Political Development research, Parker’s analysis in much of the book cruises at high altitude. Some specialists in these fields might yearn for more granularity in the author’s presentation of evidence instead of the broad brushstrokes he sometimes paints in. It appears that the style the book was written in was dictated by the series, New Histories in American Law, which intends the series to consist of “bold, synthetic, and path-breaking interpretive books.” Readers who wish to dig deeper will find more information in the concluding Bibliographical Essay where Parker enumerates and annotates many of his sources.
Of particular importance is that Parker chose to devote half the book (Chapters 2, 3, and 4) to covering the pre-Civil War period. This move is a welcome and important corrective because much of the U.S. immigration law and policy scholarship skips entirely the antebellum period, thereby [*20] erroneously suggesting that not much was happening before the Civil War in terms of migration controls. Parker’s coverage of the state and local level activities, along with a group of small but growing number of scholars who have added to this area, lays to rest the myth that U.S. borders were open before the federal government began enforcing immigration policy in earnest in 1882.
No book can do all things and although it was not Parker’s focus, his book alludes to the immigration federalism questions that may be of particular interest to political scientists. Especially in the nineteenth century, the two states receiving the highest volume of immigrants were New York and Massachusetts, yet both took drastically different approaches to the immigrants. Parker’s chapters on the Massachusetts laws, when read alongside the recent work of two other historians, Hidetaka Hirota (also writing on Massachusetts in the nineteenth century) and Brendan O’Malley (writing on New York in the nineteenth century), suggest that more research needs to be done to explain why there was such a wide variation between the restrictive approaches of Massachusetts, and the comparatively benign and welcoming pro-immigration bureaucracy and policies of New York (Hirota 2013, O’Malley 2015). Was it political culture, the configuration of state bureaucracy, the ethnicity of those in the dominating political party interacting with the ethnic makeup of arriving immigrants, or some other explanation?
One may have quibbles with how Parker makes his arguments, but one cannot contest that the book lays out a provocative new thesis that deserves serious discussion and engagement. In light of MAKING FOREIGNERS, Emma Lazarus’ “New Colossus” poem sounds downright mawkish. The borders were never open to all. And even for those born in the USA, they were not automatically insiders, and worse yet, one could at some point in one’s lifetime lose one’s insider status. Ultimately the book is a rebuke to the still persistent myth that circulates even among scholars today, not to mention the general public, that in the days of yore, this nation of immigrants had open borders, and once “in,” you were home free.
Danticat, Edwidge. 1995. KRIK? KRAK! New York: Vintage Books.
Hirota, Hidetaka. 2013. “The Moment of Transition: State Officials, the Federal Government, and the Formation of American Immigration Policy” JOURNAL OF AMERICAN HISTORY. 99 (4): 1092-1108.
Law, Anna O. 2014. “Lunatics, Idiots, Paupers, and Negro Seamen—Immigration Federalism and the Early American State” STUDIES IN AMERICAN POLITICAL DEVELOPMENT. 20(2): 107-128.
Magee, Rhonda. 2009. “Slavery as Immigration?” UNIVERSITY OF SAN FRANCISCO LAW REVIEW. 44: 273-306.
Neuman, Gerald. 1993. “The Lost Century of American Immigration Law (1776-1875)” COLUMBIA LAW REVIEW. 93(8): 1833-1901.
O’Malley, Brendan. 2015. “Protecting the Stranger: The Origins of US Immigration Regulation in Nineteenth-Century New York" (Doctoral dissertation in History, CUNY Graduate Center). [*21]
CHAE CHAN PING V. U.S., 130 U.S. 581 (1889)
FONG YUE TING V. U.S., 149 U.S. 698 (1892)
GRAHAM V. RICHARDSON, 403 U.S. 365 (1971)
PLYLER V. DOE, 457 U.S. 202 (1982)
U.S. V. KAGAMA, 118 U.S. 375 (1886)
© Copyright 2016 by author, Anna O. Law