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Kunal M. Parker
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. |
