What is Illegal?: Precedent

Once upon a time in this country, a woman who tried to vote was an illegal voter, an interracial couple that tried to marry were consummating an illegal love, and an African American trying to drink from a whites-only drinking fountain was taking an illegal drink. Can a female vote, love, and a drink of water really be illegal? Not in this country, not anymore- yet we’ve still got “illegal” people.

The recent campaign to get USA Today to drop the term “illegal student” was successful, but they’re still using the term “illegal immigrant”, like most media outlets. The natural extension of this term is the classification of people living in the country as either legal or not legal: you have papers, no papers, some papers, papers that don’t matter when you turn 21, and papers that are the wrong papers because of immigration attorneys.

Anybody not in the first category gets slapped with the term “illegal immigrant”, and we know that it’s totally, horribly wrong. We say it all the time- no human being is illegal.

So it’s clearly a mistake, but not only that, it’s a mistake we have made over and over again. As the saying goes, those who do not study history are doomed to repeat it.  As a country, this is not the first time we have made this mistake, and yet we seem to be making paper planes in class instead of reading the textbooks.

Only a couple hundred years ago, a slave who escaped from southern states to the north was basically an “illegal” citizen, a concept that became law with one of the few Supreme Court cases that people can cite off the top of their head: the Dred Scott v. Sandford decision.

Imagine northern nativists posting on Ye Olde Comment Boards in that era: “What part of illegal don’t you understand? Slaves who break the law and cross the Mason-Dixon Line have to go back to where they came from, get in line, and become citizens the legal way- by waiting for their masters to free them! If not, it’s totally unfair to all the other slaves.”

Ye Olde USA Today’s (actual name) company policy probably supported the use of terminology such as “illegal citizen” even in that time.  Clearly, by escaping slavery, these African Americans were breaking laws about property (property can’t just run away), and were, therefore, illegal.

The imaginary rhetoric from Ye Olde Comment Boards is not that far from the truth.

The Dred Scott decision boiled down to a lot of technical arguments about jurisdiction, states rights, and property issues, in the same way that we are taught that the Civil War was about the economy/states’ rights/ southern culture- it’s generally code for racism.

The decision claimed that the constitution did not guarantee protections for non-citizens, and laid out a string of all the horrible things that could happen if the decision went in favor of Scott:

“It would give to persons of the negro race… the right to enter every other State whenever they pleased, … the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

Oh, the horror. Not.

The decision was in no way unanimous. It was probably one of the most controversial of the century.

One of the dissenting justices, Justice Curtis, was so upset by this ruling that within a few months he quit the court.

The other dissenting justice, Justice McLean, stated that

“Plea as to jurisdiction is radically defective. It has never been held necessary that to constitute a citizen a man should have the qualification of an elector.”

Translation: The jurisdiction argument is garbage.  You don’t have to be a voter to be a citizen, and by extension, have rights protected by the constitution.

The bad news: the Dred Scott decision was never formally overturned. The good news: It was basically overturned with the passage of the 14th amendment, and commemorated as the rancid piece of garbage that it is.

The situation is only marginally different today.  Instead of issues of race, it’s become about place of birth.  Fortunately, we too have a Supreme Court Justice in our corner- Justice Sotomayor, who was the first to use the term “undocumented immigrant” (but please don’t pull a Curtis and quit).

What is more, dissenting Justice McLean pointed out that determining that Scott was not a citizen was

“more a matter of taste than of law”.

We’re not going to let people get away with letting their personal tastes about who gets to be a citizen make the law.  We’re not going to let people get away with calling human beings illegal.  In this fight, we have historical precedent- it’s only a matter of time before we win.

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3 thoughts on “What is Illegal?: Precedent

  1. Pingback: Tweets that mention DREAMActivist.org | Blog | What is Illegal?: Precedent -- Topsy.com

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