In her 2013 article “Immigration, Civil Rights, & the Evolution of the People,” Cristina Rodríguez explains how two competing notions of “civil rights” operate within the context of immigration. One of these notions relies on the idea of personhood to make rights claims for non-citizens on the basis of their humanity. The other follows an incorporation model, which involves a “reciprocal” relationship between rights-seeking non-citizens and the rights/preferences of the existing polity. The difference between these two notions, says Rodríguez, “reflects the difference between civil rights as a basic legal regime and civil rights as an ongoing social struggle” (2). Rodríguez focuses on the latter notion of civil rights here in order to consider how we define “the people,” to understand how non-citizens fit into that construct, and to weigh the usefulness of invoking “civil rights history” into this inquiry (2).
Rodríguez points out that while personhood can be invoked to secure certain rights, personhood “falls short of the sort of incorporation reflected in the highest ambitions of the civil rights project” because it does not guarantee two key aspects of incorporation into the polity (3). First, the right to vote and to stay in the US do not follow from personhood, and second, being recognized as a person also does not mean that the people must meaningfully consider or address the “political interests” or needs for “public resources” of non-citizens (3). This is so because the rights of non-citizens do not trump the interest of national sovereignty and because the polity is understood to be a unit that is bound together “for historical, emotional, and practical reasons” (4). Such bonds necessarily take time to build, and the idea of “the people” that grows out of historical and emotional ties evolves over time. Thus, to fully incorporate non-citizens into the people requires reckoning with the priority given to national sovereignty and acknowledging that sociocultural norms must be established or modified over time through both political and social contestation.
Many barriers stand in the way of the type of policy discourse Rodríguez describes. To begin with, immigration reforms that began in the 1960s did not derive from any kind of clear model of what non-citizens’ membership into the polity should look like. Rather, Rodríguez explains, the passage of the Immigration and Nationality Act of 1965 was driven in large part by a desire to “remov[e] the taint of racial preference from the law” and to serve an American “self-conception” as non-racist—motivations that did not translate into “deep popular debate” on the constitution of the people through exclusion (5). Furthermore, the needs of legal migrants who wish to work, but not remain in, the US, and a growing rise in unauthorized immigrants make the questions of if and how to include these populations more difficult. Non-citizens in both of these categories, Rodríguez points out, usually enter the US without the expectation that they will be incorporated into the polity; however, the interests that each group tries to promote can and do develop into membership claims in particular ways. Such a situation necessitates making “sociological judgments” beyond the legal understanding of the people and understanding “nation-building” as a “more fluid” concept than the narrative of the ideal incorporation (legal immigrant status followed by nationalization and assimilation) allows (5).
The courts have, to some extent, already defined a concept of the people that “entails earned membership” while not conferring a “formal legal status” (6). For example, in United States v. Verdugo-Urquidez, the Supreme court ruled that some non-citizens have the right of freedom from unreasonable searches and seizures as outlined in the Fourteenth Amendment because the people is defined in the ruling as those who have “‘developed sufficient connection within this country to be considered part of that community’” (6). Cases such as this and others have borne out a definition of the people that is malleable and dependent on a variety of circumstantial factors that, one, cannot be boiled down to individual rights, and, two, are weighed according to the relative cost or benefit that excluding non-citizens may have on the existing polity. In the case of Plyer v. Doe, says Rodríguez, Justice Brennan cited the “unauthorized child’s lack of blame” (i.e. s/he has no control over the fact of migrating to the US) and also pointed to the potential detrimental effects to American society if the courts permitted the denial of education to unauthorized children (who would subsequently fail to “absorb the values and skills upon which our social order rests”) (7). In both of the cases outlined above, it is primarily the needs of the existing polity, represented by the court’s ability to set the terms by which the people is defined—not the appeal to individual human rights—that determines whether non-citizens are afforded membership. It would seem that the rights of the minority group are only granted insofar as they can be interpreted as representative of the majority, whether in terms of representing a mythologized notion of America as a nation of immigrants based on the ideals of freedom and equality or in terms of representing potential good or harm to existing rights and resources of the polity.
Next, Rodríguez points out that the debate about whether to include aliens as “de facto members, or as false claimants” boils down to competing notions about the nature of the non-citizen’s legal status; that is, whether that status is “a technicality that can be fixed” through formal recognition of the non-citizen’s “sociological” ties to the polity or if the non-citizen’s illegal status in itself undermines her/his membership claim (8). Rodríguez points out that even claims that, like the Plyer case, are based in lack of blame for unauthorized status often fail to produce legal protections. Furthermore, says Rodríguez, regardless of the side one takes in the debate on inclusion, most of the debaters share the belief that illegality itself is harmful and that trying to incorporate a large population of unauthorized persons into existing social structures is not viable. Thus, ‘solutions’ to the problem of immigration often take the form of “some combination of enforcement measures and imposition of legal disabilities” (8). Rodríguez, however, advocates for a different approach, one that begins with “accept[ing] the premise that many of the unauthorized constitute members sociologically speaking” and aims at “broad support through legal recognition through legislation, to stabilize and anchor the social fact of membership” (8).
In order to foster the kind of conversation that would place sociological grounds for membership at the center of the debate, we must reconsider our approach to several factors. Factors such as one’s relative blame for being in the US illegally (e.g. the case of children), ties to a community, military service, or the existence of a criminal record must be considered in a more complex manner. For instance, should a criminal record be seen as an indicator of lack of respect for the polity into which one seeks membership? And ought we to base our decisions about who is fit for membership based on this indicator of “good moral character” in the first place (9)? Is illegality “best understood as an administrative violation” or a reflection of “bad character” (9)? Such questions, says Rodríguez, may spur a conversation about the possible “motives” for illegal immigration, such as “a desire for self-improvement and a wiliness to work,” as well as the possibility of “the existing polity’s own ‘blame’ for illegal immigration” in the form of increased barriers to legal immigration (9).
“[F]inally,” Rodríguez writes, “the transformation of the sociological case into a political claim for legal recognition requires consideration of incorporation’s likely effects on existing citizens and future iterations of the polity,” such as the creation of “incentives for future illegal immigration” and detrimental effects to the most disadvantaged members” (9). We cannot simply always assume that the interests of the existing polity must be prioritized over the rights of non-citizens seeking membership if policy changes are to have a lasting, meaningful impact. At the same time, the “reciprocal” element of incorporation—a balance between the interests of citizens and non-citizens—must be taken into consideration in order to support “the long-term stability of the nation-building project” (10). An honest and useful dialogue about incorporation must begin by accepting that “the formal legal regime has failed and must be brought into line with the complex social structures that define actual membership” (10). Ultimately, Rodríguez shows that any project invoking civil rights claims for non-citizens necessitates engaging in a tricky process of balancing the interests of non-citizens with those of the existing polity within a legal structure that privileges the project of “nation-building” (10).
Rodríguez, Cristina. "Immigration, Civil Rights, & the Evolution of the People." Daedalus, the Journal of the American Academy of Arts & Sciences. 142.3 (2013): 1-14.