Tag Archives: slavery

The Practice of Immigration Law as Manumission

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I do not want to equate the evil of chattel slavery with the evil of immigration restrictions. They may or may not be equal in one person’s experience or another’s, but I am not out to make a claim one way or another. I want to avoid at all costs what Elizabeth Martinez terms an “oppression Olympics,”1 referring to the weighing of which group is more or less oppressed than another such that the comparison succeeds in turning oppressed people against each other, which is of course a win for the oppressor. All I want to do here is re-frame the moral context of immigration law practice by way of analogy to the practice of manumission law in centuries past.

I. Manumission Law and Immigration Law

During the centuries that chattel slavery persisted in the Americas, there existed also in many jurisdictions the law of “manumission,” or the emancipation of a person from status as a slave through legal means, such as by purchasing or contracting for their freedom from their owner, or having it granted to them by their owner’s will and testament, making them a “free person.”2 Sometimes this involved slave owners asking a tribunal to manumit the human beings they themselves owned,3 but in other contexts it involved enslaved people directly asking the court to allow themselves to be manumitted,4 sometimes with representation by counsel.5 It is this latter scenario of self-manumission through an advocate that we’re referring to here – where an advocate argued on behalf of an enslaved person for their freedom.

The practice of immigration law6 is the lawful application for enhanced liberty or rights for individuals without U.S. Citizenship, before and against a government agency designed to restrict their liberty and their right to have rights, as Hannah Arendt put it.7 The immigration law practitioner petitions a government officer or judge for their recognition of a human being’s right to move, work and survive. This is to say, the non-citizen, through their immigration lawyer, asks the government officer or judge for permission to be treated as a full human being; put even more simply, a non-citizens asks the government, through counsel, to recognize their humanity.

The same law that affords the non-citizen the ability to petition for this recognition and permission is the same law that endows that officer or judge with the unchallenged power to dismember families, crush freedom and sentence deportees to death. Just as the enslaved person asked for their freedom on the authority of their owner’s will or contract – the same owner with the power to end their family, their freedom or their life. But, without comparing the degree of dehumanization or the frequency of torture and murder visited upon human beings within either of these institutions, what other aspects of them appear comparable?

In both instances the law afforded a narrow route of escape (albeit with limited rights to the escapee) from the institution. In both instances a legal advocate, a lawyer, had to work within the laws of the time and make arguments based on those laws and the assumptions that undergird them – seeking relief from the same power that presumed the authority to destroy their client. In both instances, engaging in this kind of advocacy against the institution did not actually challenge the institution’s authority or legitimacy, but rather reinforced them.8 Certainly it failed/fails to challenge but reinforces the artifice of white supremacy. In both cases the advocacy nonetheless enhanced the liberty of individual people on a case-by-case basis

One author describes manumission this way: “Slaves used the law designed essentially to keep them as slaves to win their freedom, and free people of color used the law to maintain and often to fight vigorously to safeguard their liberty.”9 Replace “slaves” with “undocumented people” and the former part of this explanation could easily describe removal defense and bond hearings while the latter could just as easily describe applications for legal permanent residence or naturalization.

II. Moral Tension

Another way in which the practice of manumission is comparable to the practice of immigration law is that neither was/is devoid of moral ambiguity. In each case well-meaning people were working within an institution they may have fundamentally disagreed with or even hated. In doing so they obeyed the rules of that institution and called upon the authority of the slave owner’s ownership to manumit, and thus arguably kowtowed to its authority, thereby legitimizing and reinforcing it. In this sense they were to some degree complicit in the crimes of the institution itself. When we ask the government today to give a person relief from deportation or detention, we imply that we agree that the government has the authority to destroy that person’s life; inasmuch as we appeal to a power, we also consent to it.

But at the same time, there’s a strong moral argument that an attorney’s practice of manumission law to secure a client’s freedom was necessary for a simple reason: it saved lives. It did require a lawyer to play by the rules of slavery, but practically it also saved the lives of individual human beings, shielding them from torture, murder and rape – just as deportation defense often does today.10 Ultimately manumission won an individual person’s liberty (or at least reduced their level of bondage11), albeit without injuring or truly challenging the evil institution from which they were liberated. The same can be said of the practice of immigration law today – like manumission before it, it may be necessary to save lives.

Historian Jessica Millward, in her article discussing how enslaved women used manumission laws to gain their freedom, describes this moral tension:

Manumissions were granted on an individual basis and never jeopardized the balance of power, which positioned the laws of the slaveholding South as an omnipresent force in the lives of African Americans. After all, manumission laws were slaveholders’ laws, and any space left for a slave to gain freedom through them was a loophole, not an open door. However, the ability to negotiate one’s manumission and that of one’s kin became a very important vehicle of resistance for enslaved women.12

As immigration lawyers, especially in the world of public interest law, we take enormous emotional shelter in the perception that we are on the just side of a war between right and wrong, and with good reason – we are. But we do not enough acknowledge the moral tension Millward describes in the context of manumission, where that tension is more obvious: we are doing the right thing, yes, but in a context that is so wrong that any proximity to it at all puts us closer than we want to be to culpability. As such that proximity deserves our scrutiny and critical thoughtfulness.

So this comparison is not to say that a lawyer’s practice of manumission or immigration law was/is evil in and of themselves; rather manumission practice, like immigration practice, could be a necessary vehicle of resistance (to use Millward’s words) when and inasmuch as it becomes a necessary intervention to save lives and protect people from harm. This comparison prompts us to conclude that their practice does not by itself satisfy the moral responsibility of the practitioner. Such a practice is necessary, but insufficient. It was not enough for a lawyer to advocate for the manumission of individuals during a time when the terrorism of slavery thrived – rather the minimum level of moral responsibility required that they call for the abolition of slavery as an institution.

Thus, like legal manumitters before them, it is not enough for immigration lawyers to practice the law – we must be abolitionists. It is morally insufficient to fall somewhere in the middle or to fail to take that position. And it is in that sense too that these two areas of law are analogous – not in the depth of the cruelty of the institution that they were a part of – no oppression Olympics please – but in their failure of each in and of themselves to be morally adequate conduct on the part of the practitioner in each of their respective contexts.

For both the manumitter advocate and the immigration lawyer, it is a failure of their moral imagination to believe that their responsibility ends with their legal work. Our duty does not end with advocacy on behalf of someone’s life or liberty, but with calling for the abolition of the institution that threatens them in the first place. Our job may begin with filing a Notice of Appearance, but it ends only with speaking out in favor of abolishing the border.13

Footnotes

1 Martinez, Elizabeth. 1993. “Beyond Black/White: The Racisms of our Times.” Social Justice 20 (1/2): 22–34.
2See, e.g., Michael P. Mills, Slave Law in Mississippi from 1817-1861: Constitutions, Codes and Cases, 71 Miss. L.J. 153, 184-188 (2001); Andrew Kull, Restitution in Favor of Former Slaves, Symposium: The Jurisprudence of Slavery Reparations, 84 B.U.L. Rev. 1277-78, 1280-81, 1286 (Dec. 2004); Warran T. Burns, Book Review: Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862, 78 Tul. L. Rev. 2339, 2340 (“slaves nevertheless continued to enter into contracts for self-purchase during the antebellum period”).
3 A. Leon Higginbotham, Jr. & F. Michael Higginbothom, “Yearning to Breathe Free”: Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U. L. Rev. 1213, 1255 (Dec. 1993); Michael P. Mills, Slave Law in Mississippi from 1817-1861: Constitutions, Codes and Cases, 71 Miss. L.J. 153, 184-188 (2001).
4 See Warran T. Burns, Book Review: Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862, 78 Tul. L. Rev. 2339, 2340 (“slaves in Louisiana had the right to bring suits for their freedom in their individual capacities . . .”); A. Leon Higginbotham, Jr. & F. Michael Higginbothom, “Yearning to Breathe Free”: Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U. L. Rev. 1213, 1260-61 (Dec. 1993).
5 See Eric Foner, Gateway to Freedom: The Hidden History of the Underground Railroad 42, 133 (2015).
6 I don’t use this phrase here to refer to attorneys who work for Immigration and Customs Enforcement or Citizenship and Immigration Service – although they are practicing immigration law as well, inasmuch as a lawyer representing a slave state in opposition to an enslaved persons request for manumission could be said to have been practicing manumission law.
7 Hannah Arendt, The Origins of Totalitarianism, new edition 296 (1968).
8 This is probably not the case with federal impact litigators who might challenge an immigration law on constitutional grounds, for example, since they may be challenging the institution itself, just as, say, the 13th Amendment did to slavery, or Brown v. Board of Education did to slavery’s later incarnation, Jim Crow.
9 Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans at xiii (Jan. 2003).
10 In truth, the lawyer defending the person from deportation does not “save” that person – but merely engages in a partnership in which the non-citizen saves themselves through that partnership, and the same can be said for any attorney who defended an enslaved person against a nineteenth century tribunal.
11 Manumission did not restore a former slave to full human being-status – they could still face violence and discrimination and in some jurisdiction could be re-enslaved to pay off their owners debts. Likewise, a non-citizen may win Legal Permanent Residence before an immigration court, but could still be deported if they commit a crime or engage in any number of other actions.
12 Jessica Millward, The Relics of Slavery: Interracial Sex and Manumission in the American South, Frontiers: A J. of Women Studies, Vol. 31, No. 3 (2010), pp. 22-30, at 26.
13 And when I say abolishing the border I mean abolishing the border.

What Open Borders Can Learn from the Abolition of Slavery

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I occasionally hear people linking gay marriage and open borders. Thus, Jose Antonio Vargas (whom I wrote about here and here) says:

We are fighting for more than immigration reform. We are fighting for the dignity of people and liberation. More than anything Define American is trying to change media and culture. Again, LGBT rights would not have happened without culture shifting.

And Charles Kenny, in “Why Immigration is the New Gay Marriage,” writes:

The evolution of public attitudes toward gay marriage—which a majority of Americans now support—demonstrates that cultural shifts can be dramatic and rapid when circumstances are right. Perhaps U.S. citizens will start realizing that more people aspiring to become Americans is no threat to the institutions of America, just as they have come to accept that more people wanting to get married—some to people of the same sex—is no threat to the institution of marriage.

I’ll explain in a follow-up post why I don’t think open borders can expect to get much benefit from riding the coattails of, or emulating, the gay marriage movement. First, I want to describe the historical movement that open borders does resemble, and which it should emulate, namely: the movement to abolish slavery.

An excellent short history of the abolition of slavery, in Chapter 5 of his book For the Glory of God by sociologist Rodney Stark, which correctly treats it as part of the history of Christian social justice, begins with a sad history of this deplorable institution, which “has… been a nearly universal feature of ‘civilization’ [and] was also common in a number of ‘aboriginal’ societies that were sufficiently affluent to afford it– for example, slavery was very prevalent among the Northwest Indians,” and which, in fact, before the advent of Christian social justice, essentially occurred wherever “the average person can produce sufficient surplus that it becomes profitable for someone to own him or her” (Stark, p. 292-293). Stark describes slavery among the Northwest Coast Indians; in classical Greece and Rome; in the Muslim world; in black Africa long before the Atlantic slave trade; and in the New World in modern times. Stark pays less attention to China– space is limited, after all– but slavery also existed there.

The Bible doesn’t condemn slavery, though the Mosaic law does greatly ameliorate it:

Although Jews were prohibited from enslaving their fellow Jews, and their slaves therefore came from among the “heathen,” there were still severe limits on their treatment. Death was decreed for any Jewish master who killed a slave. The Torah admonished that freedom was to be awarded any slave as compensation for suffering acts of violence: “And if a man smite the eye of his servant, or the eye of his maid, that it perish; he shall go free for his eye’s sake. And if he smite out his manservant’s tooth, or his maidservant’s tooth; he shall let him go free for his tooth’s sake” (Exodus 21:26-27). Hebrew law held that children of slaves must not be parted from their parents, nor a wife from her husband. Moreover, in Deuteronomy 23:15-16 Jews were admonished not to return escaped slaves: “Thou shalt not deliver unto his master the servant which is escape from his master unto thee: he shall dwell with thee, even among you… thou shalt not oppress him.” (Stark, p. 328)

Is it embarrassing that God condones slavery in the Mosaic Law? In such cases, one must be careful not to kick away the ladder by which we ascended. Christians believe that God is trying to redeem fallen mankind. That sometimes means meeting fallen man where he is at a given time, improving him by small steps, and condoning much that is defective with respect to loftier ethical standards that he may attain later. Compared to the brutal exploitation of slaves by so many other civilizations, slavery as prescribed in the Mosaic law is humane. Jesus later told the Pharisees that Moses had permitted men to divorce their wives “because of the hardness of your hearts” (Matthew 19:8), and I think (and more importantly, Christians have long held) that the same principle applies to much of the Mosaic law. It was a kind of compromise between ethical perfection and human weakness. The subsequent history of the Jews shows how little they were able even to live up to this limited standard. But in the teachings of Jesus the fullness of ethical perfection was revealed, and this rendered obsolete some of the rituals and minor rules, and especially the imperfections and compromises, of the Mosaic law.

Yet even in the New Testament, slaves are told to obey their masters by both St. Peter– see 1 Peter 2:18— and St. Paul– see Ephesians 6:5 and Colossians 3:22. I don’t find these passages troubling, because I see them as instances of Jesus’s teaching to “turn the other cheek” (Matthew 5:39) and, in general, to submit to coercion and even give more than what is demanded: “If anyone forces you to go one mile, go with them two miles” (Matthew 5:41). After all, if we ought to serve our fellow men, then why should it be an unmitigated evil to be legally bound to serve one of our fellow men? More troubling, possibly, is that in advising the Ephesians, St. Paul does not command Christian masters to manumit their slaves, saying only “And masters, do the same things [i.e., render sincere service] to them [i.e., to your slaves], and give up threatening, knowing that both their Master and yours is in heaven, and there is no partiality with Him” (Ephesians 6:9). Certainly for masters to serve their slaves and to stop threatening them is a step in the right direction, but how can any kind of slavery, even an ameliorated form, be compatible with the Gospel of love?

I would offer three defenses of St. Paul here. First, the apostles weren’t trying to make a secular political revolution, for which they didn’t have the strength, but to save souls, to work a moral transformation from within. Had they attempted to launch a revolution against slavery, the Roman Empire would have crushed them. Even semi-public exhortations to manumission in letters to churches might have been dangerous. Second, this is another case of God meeting us where we are, and not giving us moral standards we’re not yet ready to live by. What would masters in the early Ephesian church have done, had St. Paul commanded them to manumit all their slaves? Let’s assume it would have been good for their souls as well as their slaves if they had obeyed. But, perhaps they would not have obeyed, but left the church instead. Would that justify Paul in limiting his exhortations to good treatment rather than manumission? I think so. Third, what happens to a manumitted slave? Don’t think of the ancient Roman Empire as a modern capitalist economy where any random person can find a job and support himself. A typical slave would probably have trouble making it on his or her own. To urge masters to manumit their slaves into isolation and destitution might have been no mercy. The slaveless society was a social model yet to be developed.

Theologian David Bentley Hart describes (in his book Atheist Delusions: The Christian Revolution and its Fashionable Enemies, pp. 176ff.) the attitudes of the early Church fathers towards slavery…

The attitudes of many of the fathers of the church toward slavery ranged from (at best) resigned acceptance to (at worst) a kind of prudential approval. All of them regarded slavery as a mark of sin, of course, and all could take some comfort in the knowledge that, at the restoration of creation in the Kingdom of God, it would vanish altogether. They even understood that this expectation necessarily involved certain moral implications for the present. But, for most of them, the best that could be hoped for within a fallen world (apart from certain legal reforms) was a spirit of charity, gentleness, and familial regard on the part of masters and a spirit of longsuffering on the part of servants. Basil of Caesarea found it necessary to defend the subjection of some men to others, on the grounds that not all are capable of governing themselves wisely and virtuously. John Chrysostom dreamed of a perfect (probably eschatological) society in which none would rule over another, celebrated the extension of legal rights and protections to slaves, and fulminated against Christian masters who would dare to humiliate or beat their slaves. Augustine, with his darker, colder, more brutal vision of the fallen world, disliked slavery but did not think it wise always to spare the rod, at least not when the welfare of the soul should take precedence over the welfare of the flesh. Each of them knew that slavery was essentially a damnable thing– which in itself was a considerable advance in moral intelligence over the ethos of pagan antiquity– but damnation, after all, is reserved for the end of time; none of them found it possible to convert that eschatological certainty into a program for the present… Given the inherently restive quality of the human moral imagination, it is only natural that certain of the moral values of the pagan past should have lingered on so long into the Christian era, just as any number of Christian moral values continue today to enjoy a tacit and largely unexamined authority in minds and cultures that no longer believe the Christian story.

It is in this context that a certain stunning insight occurred to a certain 4th-century theologian, Gregory of Nyssa, to whom, as far as I can tell, the abolition of slavery may be traced.

And yet– confusingly enough for any conventional calculation of history probability– there is Gregory of Nyssa, Basil’s younger and more brilliant brother, who sounded a very different note, one that almost seems to have issued from some altogether different frame of reality. At least, one searches in vain through the literary remains of antiquity– pagan, Jewish, or Christian– for any other document remotely comparable in tone or content to Gregory’s fourth sermon on the book of Ecclesiastes, which he preached during Lent in 379, and which comprises a long passage unequivocally and indignantly condemning slavery as an institution. That is to say, in this sermon Gregory does not simply treat slavery as an extravagance in which Christians ought not to indulge beyond the dictates of necessity, nor does he confine himself to denouncing the injustices and cruelties of which slaveholders are frequently guilty. These things one would naturally expect, since moral admonitions and exhortations to repentance are part of the standard Lenten repertoire of any competent homilist. Moreover, ever since 321, when Constantine had granted the churches the power of legally certifying manumissions (the power of manumissio in ecclesia), propertied Christians had often taken Easter as an occasion for emancipating slaves, and Gregory was no doubt hoping to encourage his parishioners to follow the custom. But if all he had wanted to do was recommend manumission as a spiritual hygiene or as a gesture of benevolence, he could have done so quite (and perhaps more) effectively by using a considerably more temperate tone than one actually finds in his sermon. For there he directs his anger not at the abuse of slavery but at its use; he reproaches his parishioners not for mistreating their slaves but for daring to imagine that they have the right to own other human beings in the first place.

One cannot overemphasize this distinction. On occasion, scholars who have attempted to make this sermon conform to their expectations of fourth century rhetoric have tried to read it as belonging to some standard type of penitential oration, perhaps rather more hyperbolic in some of its language but ultimately intended to do no more than impress the consciences of its hearers with the need for humility… [But] Gregory’s language in the sermon is simply too unambiguous to be read as anything other than what it is. He leaves no room for Christian slaveholders to console themselves with the thought that they, at any rate, are merciful masters, generous enough to liberate the occasional worthy servant but wise enough to know when they must continue to exercise stewardship over less responsible souls. He certainly could have done just this; he begins his diatribe (which is not too strong a word) with a brief exegetical excursus on a single, rather unexpectional verse, Eccesiastes 2:7 (“I got me male and female slaves, and had my home-born slaves as well”); a text that would seem to invite only a few bracing imprecations against luxuriance and sloth, and nothing more. As he warms to his theme, however, Gregory goes well beyond this…

Continue reading What Open Borders Can Learn from the Abolition of Slavery →

Schindler or Eichmann?

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More than a few times I’ve heard sentiments like this expressed: “I would support the legalization of immigration, but as long as it remains illegal, those that break the law shouldn’t be allowed to stay.” This appeal to authority can seem reasonable at first-glance: It denotes a respect for law, while also giving lip-service to support for immigration. There’s something to be said for respecting the rule of law in general, even if you disagree with specific laws. After all, some might claim, if we simply disobeyed every law we thought was unjust without respect for the avenues by which we might legally change those laws, then what is the point of legislation at all?

However, nearly all people have a point at which they would disobey a law – the point at which it conflicts sufficiently with their own ideas of true morality. That point may be different for every person, but almost all people have such a point. If a law was passed tomorrow legally mandating that parents abandon their children in the woods, it’s unlikely that many would obey such a law. So does this mean that people only obey laws that they morally agree with – or at least, don’t morally disagree with strongly? Not necessarily.

Numerous examples in history and psychology have demonstrated that a person’s moral limit on obedience is not an immovable line, but rather is quite malleable depending on circumstance – and technique. The Milgram experiments done in response to the trial of Adolf Eichmann, the Stanford Prison Experiments, and the Mount Washington McDonald’s incident all provide examples of how people can be pushed beyond their stated moral limits. If you know about those (and other) examples of the malleability of human morals, then it suddenly doesn’t become so far-fetched to imagine that people could be convinced to obey a number of laws they’d find immoral if asked directly.

So is that what’s happened? Have the citizens of the developed world been slowly conditioned to accept immigration restrictions as moral, when philosophical reasoning so easily reveals them to be the opposite? It’s certainly possible. It’s in the nature of authority to condition those under it to respect that authority for authority’s sake – to accept that authority itself is morality. Even though the residents of a nation usually benefit from migration, individual political leaders often oppose it, and the gradual effect is cyclical: politicians oppose immigration, which helps to condition people to oppose it. People conditioned to oppose it demand politicians that oppose it. Those politicians oppose it, and the cycle continues.

The effect is not absolute, however. The Milgram Experiments demonstrated that while people may have a tendency to allow their morals to be eroded by the proper conditions, there were always those who bucked the trend and opposed the commands. When slavery was the law, there were still those who, as a part of the Underground Railroad, helped to break that law because it was morally right to do so. Those people were lawbreakers, but history regards them positively. Despite the fact that they broke the laws, history sees people like Harriet Tubman and Oskar Schindler (and many others) as heroes. Those we see as heroic in history were often those who bucked the trend of allowing authority to dictate morality, despite the pressures.

One hundred years from now, will the cause of Open Borders have a Tubman or a Schindler to admire?

Open Borders editorial note: The following posts suggest some possibilities: Why Jose Antonio Vargas Matters: Making Human Rights Real by Nathan Smith, and How Undocumented Organizers Can Lead the Way to Open Borders by David Bennion. Nathan Smith’s post Illegal immigrants and runaway slaves is also related to the point Roccia makes about the Underground Railroad.

Are Open Borders Utopian?

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I can’t remember if anyone has ever actually responded to my advocacy of open borders by calling them “utopian,” but they often seem to be thinking it. Are open borders utopian? It would be truer to think of them as “back to normal.” The attempt to control migration through a comprehensive passport regime is a 20th-century innovation. The late 19th century was a kind of golden age of open borders, when passport regimes were removed and the world’s leading countries accepted immigrants with few or no restrictions, but even before that migration was restricted only in certain places and for certain groups and not very rigorously. Certain countries– England in the Middle Ages, Spain a couple of centuries later– expelled the Jews, but you didn’t need a visa to travel from Rome to London.

That said, for most of history, no one, native or foreign, enjoyed the degree of protection of human rights that people in the advanced nations of the West take for granted today. Much of the history of civilization was dominated by absolute monarchs of one kind or another, who were above any law. Often, too, aristocratic castes had the de facto power and/or the de jure right arbitrarily to violate the property or persons of their social inferiors. Courts have tended to be more arbitrary and corrupt than in the contemporary West; and crime rates were higher. Economic opportunity was limited and more dependent on scarce resources, which gave people more valid reasons to see a migrant as a security threat. (How will he survive, unless by stealing our cattle?) Literacy was less widespread, and there has never been a lingua franca with a reach comparable to that enjoyed by English today. For all these reasons, the practical opportunities for safe migration have surely been limited for most of historical mankind, even if passport control was not among the obstacles.

So if we were to abolish passport controls today, we would be giving rise to something rather new under the sun. Relative to the late 19th century, freedom of migration has been politically restricted but technologically and socially enabled. It’s hard to get a visa, but once you do, you can hop on a plane, arrive speaking English, and are unlikely to encounter racism. If we were to remove the passport controls, human beings worldwide would be born with a far greater prospect of practical mobility than ever before in history. Considering that (a) it’s always presumptively good to give people more options, and (b) a glance at the global distribution of income makes it clear that some people could benefit a lot by moving, that’s a very good thing. Is it too good? Are open borders utopian? Continue reading Are Open Borders Utopian? →