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Immigration Law And The Usmexico Border S Se Puede Kevin R Johnson

Immigration Law And The Usmexico Border S Se Puede Kevin R Johnson Immigration Law And The Usmexico Border S Se Puede Kevin R Johnson Immigration Law And The Usmexico Border S Se Puede Kevin R Johnson

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Immigration Law and the US–Mexico Border
The Mexican American Experience Adela de la Torre, Editor Other books in the series: Mexican Americans and Health: ¡Sana! ¡Sana! Adela de la Torre and Antonio L. Estrada Chicano Popular Culture: Que hable el pueblo Charles M.Tatum Mexican Americans and the US Economy: Quest for buenos días Arturo González Mexican Americans and the Law: ¡El pueblo unido jamás será vencido! Reynaldo AnayaValencia, Sonia R. García, Henry Flores, and José Roberto Juárez Jr. Chicana/o Identity in a Changing US Society: ¿Quién soy? ¿Quiénes somos? Aída Hurtado and Patricia Gurin Mexican Americans and the Environment: Tierra y vida Devon G. Peña Mexican Americans and the Politics of Diversity: ¡Querer es poder! Lisa Magaña Mexican Americans and Language: Del dicho al hecho Glenn A. Martínez Chicano and Chicana Literature Charles M.Tatum Chicana and Chicano Art: ProtestArte Carlos Francisco Jackson
Immigration Law and the US–Mexico Border ¿Sí se puede? Kevin R. Johnson and BernardTrujillo The University of Arizona Press Tucson
The University of Arizona Press © 2011 The Arizona Board of Regents All rights reserved www.uapress.arizona.edu Library of Congress Cataloging-in-Publication Data Johnson, Kevin R. Immigration law and the US–Mexico border ¿Sí se puede? / Kevin R. Johnson, Ber- nard Trujillo.     p. cm. — (Mexican American experience) Includes bibliographical references and index. ISBN 978-0-8165-2780-9 (pbk.) 1. Emigration and immigration law—United States. 2. Illegal aliens—United States. 3. Border security—Mexican-American Border Region. 4. United States— Foreign relations—Mexico. 5. Mexico—Foreign relations—United States. I. Trujillo, Bernard, 1966– II. Title. KF4819.J6435 2011 342.7308'2–dc23 2011024944 Publication of this book is made possible in part by the proceeds of a permanent endow- ment created with the assistance of a Challenge Grant from the National Endowment for the Humanities, a federal agency. Manufactured in the United States of America on acid-free, archival-quality paper con- taining a minimum of 30 percent post-consumer waste and processed chlorine free. 16 15 14 13 12 11  6 5 4 3 2 1
To my parents, Kenneth Johnson (1936–2010) and Angela Gallardo (1938–2007), both of whom taught me about the very best of the United States and Mexico. —Kevin R. Johnson For my father and mother, and for my wife, Victoria. —Bernard Trujillo
Contents List of Illustrations ix Preface xi Acknowledgments xiii 1 Introduction 1 2 A Brief History of Mexico–US Migration Patterns 28 3 Federal Plenary Power over Immigration 43 4 The Administration and Enforcement of US Immigration Laws 73 5 Admissions 87 6 Inadmissibility 106 7 Removal 133 8 Regulating the Migration of Labor 148 9 US–Mexico Border Enforcement 169 10 State and Local Regulation of Immigration 198 11 National Security and Immigration Law and Policy 217 12 Integration, Protest, and Reform 241 Glossary of Terms 273 Index 285
Illustrations Figures 2.1 The vice royalty of New Spain, 1786–1821 29 2.2 Map of the Republic of Texas, 1836–1846 30 2.3 Land ceded to the United States through the Treaty of Guadalupe Hidalgo and the Gadsden Purchase 32 2.4 Hispanic population by county, 2000 39 2.5 Latin American–born population in select cities 40 4.1 Government entities that regulate immigration 76 5.1 Estimates of unauthorized immigrant population in the United States, 2000–2008 103 5.2 Unauthorized foreign-born immigrants 103 8.1 Employment status and education level of immigrants and US natives by gender 151 8.2 Employment status of documented and undocumented foreign nationals and US natives 154 8.3 Labor market status of undocumented foreign-born workers 154 8.4 Latinas/os by age and sex, undocumented, documented, and US natives 156–157 Tables 1.1 Top five countries that send lawful permanent residents to the United States 13 5.1 US Department of State visa chart, April 2009 90 5.2 Visa waiting period comparison between Swiss and Mexican immigrants 91 8.1 Employment of Latinas/os, by industry 150 8.2 Employment by industry and occupation in the United States, by nativity and Mexican birth 152 8.3 Labor market status of foreign-born Latinas/os, by period of arrival 153 8.4 Undocumented foreign national share of selected specific occupations 155 10.1 State and local law enforcement agencies with MOA to enforce federal immigration law 204
Preface O ver the past two hundred years, immigration has been a hot but- ton issue on the American political scene in times of crisis. Anxiet- ies over politics, economics, race and ethnicity, national identity, world events, and the status of US society in general have often been accompanied by public concern with immigration and the quantity and quality of immigrants coming to the United States. There can be no question that immigration is one of the major policy issuesthatthenationmustaddressinthetwenty-firstcentury.Today,people from radically different political persuasions agree on the need to “fix” the “broken” US immigration laws to address serious deficiencies and improve border enforcement. The ideas for reform run the gamut from more—and more—enforcement, including monumental efforts to close the borders, or even a moratorium on immigration, to more generous laws that pro- vide, for example, for “earned legalization” of undocumented immigrants, a guest worker program, and perhaps even more liberal admissions of for- eign workers to better accommodate the nation’s labor needs. The dawn of the new millennium saw considerable—and often very heated—debate over immigration reform. Pundits such as CNN’s Lou Dobbs, who abruptly left the network in fall 2009, and other commenta- tors decried the negative impacts that “illegal aliens” were having on the “American way of life.” Advocates of immigrants strongly disagreed. In spring 2006, tens of thousands of people took to the streets in cities across the United States to protest draconian immigration legislation passed by the US House of Representatives and demanded nothing less than simple justice for undocumented immigrants. Unfortunately, as we discuss in chapter 12, a political stalemate devel- oped, and comprehensive immigration reform subsequently failed in the US Congress—at least through the period in which this book was being written. “Amnesty” became nothing more than a dirty word among some policy makers and segments of the public; more enforcement through, among other things, an extension of the fence along the US–Mexico border was the only immigration reform measure that could carry the day. Recent developments, however, including the 2008 election of Presi- dent Barack Obama, the son of a Kenyan and supporter of comprehen- sive immigration reform, have again placed immigration reform on the national agenda. As this book goes to press, immigration reform continues
xii PrefacePreface to be debated in the halls of Congress and in cities and towns across the United States. Only time will tell, however, whether Congress will ulti- mately enact immigration reform legislation, and if so, what it will entail. This book focuses on what for many is the core of the entire immigration debate in modern America. Immigration to the United States from Mexico affects US citizens, including US citizens of Mexican ancestry; Mexican nationals; federal, state, and local governments in the United States; and the Mexican government. For generations, migrants in significant num- bers have come to the United States from south of the border. Perhaps not surprisingly, migration from Mexico has generated considerable contro- versy in US society. The racial, cultural, linguistic, and other differences of the migrants at times have triggered unquestionably negative reactions, if not xenophobic outbursts. In this book, we seek to explain the basic features of US immigration law and policy in an understandable way, paying special attention to how law and policy affect legal regulation of Mexican migration to the United States; the status of the Mexican-born population in the United States; the status of the Mexican American population in the United States; and rela- tions between the governments of the United States and Mexico. In looking at immigration from these vantage points, we explore two fundamental questions: (1) Why should Mexico and its citizens care about US immigration law and policy? (2) Why should Mexican Americans care about US immigration policy? Chapter 12 sketches some of the reform possibilities, with a brief discus- sion of the current complex politics of immigration in the United States. We have designed the book as an introductory reader on US–Mexico migration for college and university undergraduates as well as for a more general audience. This proved to be a formidable endeavor for two law professors, more familiar with writing about the technicalities of law for lawyers and law professors than writing for a general readership. Although we have striven to simplify where appropriate, we both hope that we have neither oversimplified nor left matters too complex. The reader is the best judge of our success. Students and teachers can keep up to date on current issues in immi- gration law by visiting the ImmigrationProf blog (lawprofessors.typepad. com/immigration), which is managed by four law professors, including Kevin R. Johnson, one of the founders of the blog. Kevin R. Johnson Bernard Trujillo
Acknowledgments I thank my family, Virginia Salazar, Teresa, Tomás, and Elena, for sup- porting all that I do. Thanks to Donarae Reynolds, Glenda McGlashan, and Nina-Marie Bell for editorial and related support. Maryam Sayyed (UC Davis 2010), Janet Kim (UC Davis 2011), Aida Macedo (UC Davis 2011), Joanna Cuevas Ingram (UC Davis 2012), and Michael Wu (UC Davis 2012) provided invaluable research and editorial assistance. Tomás Salazar Johnson provided thoughtful and careful proofreading and editorial assistance. Teresa Salazar Johnson gave us permission to use her photographs from a photography and ethnography class at UC San Diego. Thanks to Adela de la Torre for the encouragement to write this book and for her generous support throughout the publication process. Thanks also to the Mabie-Apallas Chair and the UC Davis School of Law for financial support. Kevin R. Johnson I would like to thank Victoria Trujillo, Jay Conison, JoEllen Lind, Tina Duron, Amelia Peterson, Gabe Franco, Kathryn McEnery, Mitch Gilfillan, Allison Horton, Gabriel Gutierrez, Jennifer Morris Gutierrez, Andrew Huber, and Matthew Skilling. Bernard Trujillo
Immigration Law and the US–Mexico Border
1 Introduction It has always been easier, it always will be easier, to think of someone as a noncitizen than to decide that he is a nonperson. —Alexander M. Bickel, The Morality of Consent (emphasis added) Make no mistake about it: Illegal aliens are the carriers of the new strain of human–swine avian flu from Mexico. —Michael Savage, The Savage Nation (emphasis added) T his book in essence contends that the “problem” of undocumented immigration from Mexico to the United States, which dominates any discussion of immigration in this country, is a product of US immigration laws. There are simply too few legal avenues for low- and moderately skilled workers to migrate lawfully from Mexico to the United States. Consequently, undocumented migrants violate the law to work. Moreover, US immigration laws and their enforcement have disparate impacts based on race and nationality, in no small part because of the high demand for migration to the United States by many low- and moderately skilled workers from the developing world. Despite the disparate impacts of the laws, the courts in the United States have traditionally played an extremely limited role in reviewing the immi- gration laws. Congress—and a political process that sporadically lashes out at immigrants—has “plenary power” over immigration. The president has great discretion to enforce the immigration laws. Ultimately, this dynamic has negatively affected immigrants by contributing to the passage by Con- gress of punitive laws directed at them, enforced by the president, and unchecked by the judiciary. Moreover, as we discuss throughout this book, there is a long history of discrimination against US citizens of Mexican ancestry in the United States. Mexican Americans, US citizens as well as immigrants, are often stereotyped as “foreigners” subject to the full force of US immigration laws
2 Introduction and their enforcement. Unfortunately, the ancestry of Mexican Americans often limits their full acceptance into American society. Finally, despite the United States and Mexico sharing a nearly two- thousand-mile land border, the immigration rules that apply to nonciti- zens from Iceland generally apply with equal force to noncitizens from Mexico. The laws fail to consider the special relationship forged over centuries between the United States and Mexico, including the long his- tory of migration from Mexico to the United States, which has often been expressly or tacitly encouraged by the US government and employers. Immigrants—especially undocumented ones—from Mexico in the United States are often demonized in their new country, both in the communities in which they live and in the public debate over immigration. To clarify the public debate over immigration in the United States, chapter 1 offers critical background. As we shall see throughout this book, immigration law and policy throughout US history have generated great public concern and controversy. In particular, as we discuss in chapter 2, migration from Mexico to the United States has often been a hotly con- tested and controversial issue, especially beginning in the twentieth cen- tury, after the continental United States had been largely settled. The migration of people who are perceived to be of different races, cul- tures, and religions than the norm in the United States has often generated concern among the general American public. Change alone brought by the migration of people into a community can cause uneasiness, if not fear and loathing. Throughout US history, different waves of immigrants— Germans, Irish, Chinese, Japanese, southern and eastern Europeans, Arabs and Muslims, and Mexicans—have all sparked controversy among the general public, often for remarkably similar reasons, such as being seen as racially, culturally, and economically different as well as being seen as “unassimilable” to the American way of life. In this chapter, we step back to look at the broader contours of the debate over immigration in the United States, with a special emphasis on immigration from Mexico. We offer a number of different perspectives on migration from Mexico to this country. The “Alien” in the American Imagination The controversy over immigration to the United States begins with the basic terms used in the discussion of immigration. At first glance, this
The “Alien” in the American Imagination 3 might seem trivial but ultimately has great practical consequences. The word “alien” is a term of art used extensively in discussing the legal, politi- cal, and social rights of noncitizens in the United States.1 By definition, “aliens” are outsiders to the national community. Even if they have lived in this country for many years, have had children here—who, under the law, are US citizens—and work and have developed deep community ties in the United States, noncitizens remain “aliens,” an institutionalized “other,” different and apart from “us” in law and society. The classification of persons as aliens, as opposed to US citizens, has sig- nificant legal, social, and political importance. Citizens have a large bundle of political, social, economic, and civil rights, many of which are guaran- teed by the US Constitution; aliens have a much smaller bundle of rights, thereby enjoying far fewer constitutional and statutory protections. Citizens can protect themselves in the political process through voting and enjoy other political rights, such as jury service. In contrast, aliens, no matter what their ties to the community, enjoy very limited political rights. They generally cannot vote and, under US immigration laws, risk depor- tation if they engage in certain political activities that, if they were citi- zens, would be constitutionally protected. Noncitizens cannot sit on juries deciding the fate of fellow noncitizens charged with crimes, which thereby ensures that the jury in most cases will not reflect a genuine cross-section of the community. Perhaps most importantly, aliens can be deported and banished from the country (and from family, friends, job, and community) while US citizens can never be. For example, under US immigration laws, an alien convicted of possession of a few grams of marijuana—whatever his or her ties to this country, even those developed over an entire adult life in the United States— may be deported, while a US citizen convicted of mass murder can never be. The concept of the “alien” has more subtle social consequences as well. Most importantly, it reinforces and strengthens negative sentiments toward immigrants, which in turn influence US responses to immigration and human rights issues. Aliens have long been unpopular in the United States, though the particular group subject to the most antipathy—what one might call the “demons of the day”—has varied over time. As we dis- cuss in chapter 3, early in this nation’s history, Federalists pressed for pas- sage of the now infamous Alien and Sedition Acts to halt the migration of radical and subversive ideas from France and to cut off the burgeoning support for the Republican Party offered by new immigrants.
4 Introduction Animosity toward other groups of aliens has occurred sporadically in US history. Benjamin Franklin decried the “criminal” (and, in his view, racially different) German immigrants flooding Pennsylvania in colonial times. Viewed as racially inferior, Irish immigrants in the 1800s generated great hostility and suffered widespread discrimination. Near the end of the nineteenth century, Chinese immigrants suffered violence and bore the brunt of a wave of draconian federal immigration laws notoriously known as the Chinese exclusion laws. Animosity directed at Japanese immigrants, as well as citizens of Japanese ancestry, culminated in their exclusion from the United States and their internment during World War II. Mexican immigrants were once disparaged—even in polite com- pany—as “wetbacks.” Today, Mexican immigrants are among the most disfavored in the United States, along with Arabs and Muslims, who find themselves demonized as “terrorists,” especially after the events of Sep- tember 11, 2001. As these historical events suggest, perceived racial difference has influ- enced the social and legal construction of “the alien.” Over time, the term has increasingly become associated with people of color from the develop- ing world who, at least in the United States, are racial minorities. Some restrictionist laws, such as those passed by Congress in the late 1800s bar- ring virtually all Chinese immigration, were expressly race based as well as class conscious (Chinese laborers were the primary focus of the exclusions laws). Before 1952, the law barred most nonwhite immigrants from natu- ralizing to become citizens, thereby forever relegating noncitizens of color to an alien status and effectively defining them as permanent outsiders in US society. The word “aliens” today is often nothing more than code for immi- grants of color, which has been facilitated by the changing racial demo- graphics of immigration. Today, “illegal alien” is often used—especially by self-proclaimed opponents of immigration—to refer to undocumented immigrants from Mexico. Many knowledgeable observers have expressed general concern with “alien” terminology in the US immigration law. Gerald Neuman has noted, “It is no coincidence that we still refer to noncitizens as ‘aliens,’ a term that calls attention to their ‘otherness,’ and even associates them with nonhuman invaders from outer space.”2 Gerald Rosberg acknowledged that “the very word, ‘alien,’ calls to mind someone strange and out of place, and it has often been used in a distinctly pejorative way.”3
The “Alien” in the American Imagination 5 However, despite the concerns, the term is regularly used in discussions of immigration. This is the almost inevitable result of “alien” being the nucleus of the comprehensive federal immigration law, the Immigration and Nationality Act (INA). Indeed, at a fundamental level, “alien” is the very DNA of the INA. The INA succinctly provides that an “alien” is “any person not a citizen or national of the United States.”4 The alien/citizen distinction has great practical importance for immigration laws; its rules for admission and removal primarily apply to aliens, not to US citizens. Today, academics generally consider the concept of “race” and “races” to be social constructions rather than anything fixed by biology or science.5 However, surprisingly little has been written about how the alien is socially and legally constructed as well. The truth of the matter is that the alien is made up out of whole cloth. It is only what we say it is. The alien represents a body of rules established by the courts and Congress and reinforced by popular culture. Society, often through the law, defines who is an alien, an institutionalized “other,” and who is not. It is society, through Congress and the courts, that determines which rights to afford aliens. Nothing is predetermined. All the legal and other baggage attached to the alien is the product of the human imagination. There is no inherent requirement that society establish a category of aliens at all. We as a nation could dole out political rights and obligations depending on residence in the community, which is how the public educa- tion and tax systems generally operate in the United States. Some commen- tators have advocated extending the franchise to noncitizen residents of this country, a common practice in many states and localities in the United States at the beginning of the twentieth century. Many alternatives to the term alien exist, including “human,” “person,” “immigrant,” “undocumented” or “unauthorized immigrant” or “undoc- umented worker.” “Alien” has many negative connotations and, similar to the social construction of races, the construction of the alien has justi- fied our legal system’s restrictive approach, offering noncitizens extremely limited rights. References to the “alien,” “aliens,” and “illegal aliens” as societal others thus helps make the harsh treatment of people from other countries seem reasonable and necessary. Consider the terms of the public debate. Today’s faceless “illegal aliens” are invading and wreaking havoc on the nation; “they” must be stopped or “we” will be destroyed. Such images, which Lou Dobbs for years sen- sationalized almost nightly on CNN, have helped animate and legitimate
6 Introduction the political movement to bolster enforcement of the border between the United States and Mexico and to crack down on immigration and immi- grants in general. The images that “alien” terminology creates have more far-reaching, often subtle, racial consequences. Federal and state laws regularly, and lawfully, discriminate against aliens. In contrast, governmental reliance on racial classifications ordinarily is unconstitutional. Because a majority of immigrants are people of color, alienage classifica- tions all too frequently serve as substitutes, or proxies, for discrimination based on race. Alienage discrimination, although overinclusive because it includes persons who are not minorities (put differently, not all “aliens” are people of color), allows one to disproportionately disadvantage people of color. We see this in operation in modern times, with the blaming of “illegal aliens” for the social ills of the United States, accompanied by a spike in hate crimes directed at Latinas/os, including US citizens as well as legal immigrants. As the increase in hate crimes demonstrates, the terminological issue is not simply a word game. “Alien” terminology serves important legal and social functions. In the quote that prefaces this chapter, Alexander Bickel perhaps said it best in the context of analyzing citizenship: “It has always been easier, it always will be easier, to think of someone as a noncitizen than to decide that he is a nonperson.”6 Aliens are partial members of the community with limited membership rights, which includes being potentially subject to treatment, such as depor- tation, that US citizens could never receive. An extreme example drives this point home. The US Supreme Court has held that, at least in certain circumstances, aliens may be detained indefinitely, consistent with the US Constitution. Citizens, of course, could never be subject to such treatment. The value of US citizenship is nothing new to American law. Long ago, the Supreme Court held that Dred Scott, a black man, was not a citizen and therefore could not sue for his freedom in the federal courts. By deny- ing citizenship to Dred Scott, the Court denied him a right—access to the federal courts—to which US citizens are ordinarily entitled, thereby high- lighting the fact that freed slaves generally were not considered full mem- bers of US society.7 Consider the linkage between alien status and citizenship under mod- ern immigration laws. The INA definition of an “alien” as not a US citizen or national is bland, yet the word “alien” alone evokes rich imagery. One
Legal Rights of “Aliens” and “Illegal Aliens” 7 thinks of frightening (and often predatory) space invaders portrayed regu- larly in science fiction TV programs and movies. Popular culture reinforces the idea that aliens may be killed with impu- nity, and if we do not, “they” will destroy the world as we know it. Some of the synonyms for alien are particularly instructive in this regard: foreigner, interloper, intruder, invader, outsider, squatter, stranger—all terms that suggest the need for harsh treatment. In effect, the term “alien” serves to dehumanizepeopleandlegitimatetheirilltreatment,legallyandotherwise. We have few, if any, legal obligations to alien outsiders to the community, although we have obligations to persons. Persons have rights—including basic human rights—while aliens generally do not. The term “alien” not only intellectually legitimizes the mistreatment of noncitizens but it helps to mask true human suffering. Persons have human dignity, and their rights should be respected. Aliens deserve nei- ther human dignity nor legal rights. By distinguishing between aliens and persons, society is able to reconcile the disparate legal and social treatment afforded the two groups. Consider this phenomenon concretely. If we think that persons who come to the United States from another nation are hard-working and “good,” it is difficult to treat them punitively (as our immigration laws do). We generally would not refer to these good folks in ordinary conversa- tion as “aliens” or “illegal aliens.” If we think about them only as faceless masses of aliens, as criminals who take “American” jobs, sap limited public resources, and damage the environment, it is far easier to rationalize the harsh treatment of human beings. Legal Rights of “Aliens” and “Illegal Aliens” Terminology plays a prominent role in the legal system’s treatment of non- citizens, especially the limits on their legal rights. One justice of the US Supreme Court recognized the subtle yet discernible impact the terminol- ogy denoting different categories of “aliens” has on their treatment under the law. In a case involving the rights of immigrants, Justice William Doug- las dissented: “We cannot allow the Government’s insistent reference to these Mexican citizens as ‘deportable aliens’ to obscure the fact that they come before us as innocent persons who have not been charged with a crime.”8 The most damning terminology for noncitizens is “illegal alien,” unquestionably one of the most unpopular groups of aliens in the United
8 Introduction States today. Restrictionists often rant about the evils of illegal aliens on talk radio. Although “alien” is the centerpiece of the INA, “illegal alien” is not defined by the omnibus federal immigration law. “Illegal alien,” rather, is a deeply pejorative term that implies criminality, thereby suggesting that persons who fall into this category deserve severe punishment, not any kind of legal protection. “They” are “illegal” as well as “aliens.” Despite its severely negative connotations, “illegal aliens” is common, if not standard, terminology in the modern debate over undocumented immigration. The “illegal alien” label, however, suffers from numerous inaccura- cies and inadequacies. Many nuances of US immigration law make it extremely difficult to distinguish between an “illegal” and a “legal” immi- grant. For example, as we discuss in chapter 7, a person living without documents in this country for a number of years may be eligible for relief from removal and to become a lawful permanent resident (LPR). He or she may have children born in this country, who are US citizens by opera- tion of the Fourteenth Amendment, as well as a job and community ties here. It is difficult to contend that this person is an “illegal alien,” indistin- guishable from a person who entered without inspection the day before yesterday. The vaguely defined, but emotionally powerful, “illegal alien” terminol- ogy also fails to distinguish between the different types of undocumented persons in the United States. There are persons who cross the border with- out inspection; another group of noncitizens enter lawfully but overstay or otherwise violate the terms of their business, tourist, student, or other temporary visas. This distinction is important because border enforcement measures, such as border fences and increased numbers of officers along the border, will have little impact on noncitizens who enter legally but overstay their visa. This helps reveal how “illegal alien” in public discus- sion ordinarily refers to a person who enters without inspection, often a national of Mexico. This is not surprising because the furor over illegal aliens often represents an attack on undocumented Mexicans, if not on lawful Mexican immigrants and Mexican American citizens, which is a central theme of this book. In this vein, history teaches that it is difficult to limit anti-alien sentiment to any one segment of the immigrant community, such as undocumented immigrants. This is evidenced by the slow reduction of public benefits to all categories of noncitizens in the 1990s. On the heels of the passage of Proposition 187 by the California voters in 1994, which focused on limiting
Legal Rights of “Aliens” and “Illegal Aliens” 9 benefits to undocumented persons, Congress enacted welfare “reform” leg- islation in 1996 that greatly limited legal immigrants’ eligibility for public benefit programs. Mean-spirited characterizations of aliens have real-life consequences. As we discuss in chapter 10, anti-immigrant rhetoric in cities and coun- ties across the United States has escalated in the last few years. Not California’s Proposition 187 (1994) California’s Proposition 187 is nothing less than an immigration mile- stone of the 1990s and marked the beginning of an increasingly anti- immigrant period of US history. The measure, approved by California voters by a 2–1 margin, would have stripped undocumented immigrants of all public benefits, including a public school elementary and second- ary education for undocumented children.The terminology in regard to immigrants used by its proponents is telling: Some supporters of Proposition 187 expressed hopes and aims well beyond simply fiscal ones. One of the initiative sponsors, Ron Prince, baldly asserted that “illegal aliens are killing us in California. . . .Those who support illegal immigration are, in effect, anti-American.”1 One argument in support of Proposition 187 in the voters’ pamphlet demonstrates the deeply negative feelings about immigration and immi- grants:“Proposition 187 will be the first giant stride in ultimately ending the ILLEGAL ALIEN invasion.” The Proposition 187 media director for Southern California expressed even more disturbing and inflammatory concerns: Proposition 187 is . . . a logical step toward saving California from economic ruin. . . . By flooding the state with 2 million illegal aliens to date, and increasing that figure each of the fol- lowing 10 years, Mexicans in California would number 15 million to (continued)
10 Introduction coincidentally, hate crimes against all Latinas/os—not just immigrants— living in the United States have risen dramatically. In 2008, Latina/o immi- grants were killed in vicious attacks in rural Pennsylvania and suburban New York. The facts surrounding the 2008 killing of a lawful Ecuadoran immigrant, Marcelo Lucero, in Long Island, are chilling. A group of young men allegedly began the events of a hate-filled evening with the ominous statement: “Let’s go find some Mexicans.” The New York Times later reported: “Every now and then, perhaps once a week, seven young friends got together . . . to hunt down, and hurt, Hispanic men. They made a sport of it, calling their victims ‘beaners,’ . . . prosecutors said.”9 Not long before the killing of Marcelo Lucero, the local county executive had blamed undocumented immigrants for fiscal, economic, and various social problems. As the campaign surrounding Proposition 187 suggests, the negative images of the alien, often fed by restrictionist groups and politicians seek- ing punitive immigration measures, carry the day in the political process. “The discourse of legal [immigration] status permits coded discussion in which listeners will understand that reference is being made, not to aliens 20 million by 2004.During those 10 years about 5 million to 8 million Californians would have emigrated to other states. If these trends continued, a Mexico-controlled California could vote to establish Spanish as the sole language of California, 10 million more English- speaking Californians could flee, and there could be a statewide vote to leave the Union and annex California to Mexico. One of the initiative sponsors went even further and conjured up dis- turbing imagery from another era in advocating passage of the initiative: “You are the posse and the SOS [Save Our State, the supporter’s name for the initiative] is the rope.” 1. Kevin R. Johnson,“An Essay on Immigration Politics, Popular Democracy, and California’s Proposition 187: The Political Relevance and Legal Irrelevance of Race,” Washington Law Review 70 (1995): quotations on 629, 653–54, emphasis added; footnotes omitted. ■
Legal Rights of “Aliens” and “Illegal Aliens” 11 in the abstract, but to the particular foreign group that is the principal focus of current hostility.”10 An important first association between aliens and racial minorities can be seen in the foundational immigration cases allowing for the exclusion and deportation of Chinese laborers in the late 1800s, which we discuss in chapter 3. Not long after, in the early part of the twentieth century, some states passed laws known as the “alien land laws” that, through incorpora- tion of the immigration and nationality laws, effectively barred persons of Japanese ancestry from owning real property. As mentioned above, in the modern debate about immigration, the alien has increasingly become associated with racial minorities. The words “alien” and “illegal alien” today carry subtle racial connotations. The domi- nant image of the alien is often that of an undocumented Mexican or some other person of color, perhaps a Haitian, Chinese, or Cuban person travel- ing by sea from a developing nation. Treating racial minorities poorly on the grounds that they are “aliens” or “illegal aliens” allows people to recon- cile the view that they “are not racist” while pursuing policies that punish certain groups of persons viewed as racially or otherwise different. Although the term “illegal alien” is seemingly race neutral, it is rela- tively easy to discern which noncitizens are the ones that provoke concern. Study of the use of the terminology in context reveals that, particularly in the Southwest, the term refers to undocumented Mexicans and plays into popular stereotypes about Mexicans as criminals. The terminology more effectively masks nativist sympathies and downright racism than the pop- ular vernacular that it replaced—“wetbacks,” which is even more closely linked to Mexican immigrants. The link between illegal aliens and Mexican citizens often goes unstated but is clear to the listener, whether it be a fellow anti-immigrant traveler or a person of Mexican ancestry. Indeed, the courts, with little explanation, often have approached the “illegal immigration problem” as an exclusively Mexican problem. For example, the late Justice William Brennan, a lib- eral on many social issues, writing for the US Supreme Court, suggests the equation in his mind between illegal aliens and Mexican immigrants: Employment of illegal aliens in times of high unemployment deprives citi- zens and legally admitted aliens of jobs; acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously
12 Introduction depress wage scales and working conditions of citizens and legally admit- ted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions.These local problems are par- ticularly acute in California in light of the significant influx of illegal aliens from neighboring Mexico.11 The Supreme Court: Migration from Mexico as a “Colossal Problem” In focusing on the “illegal alien” as Mexican, US Supreme Court decisions are replete with negative imagery about undocumented immigration from Mexico. Such immigration, in the Court’s view, is a “colossal problem” posing “enormous difficulties”12 and “formidable law enforcement prob- lems.”13 One justice observed that immigration from Mexico is “virtually uncontrollable.”14 Chief Justice Warren Burger stated that the nation “is powerless to stop the tide of illegal aliens—and dangerous drugs—that daily and freely crosses our 2000-mile southern boundary [with Mexico].”15 Jus- tice William Brennan, in analyzing the lawfulness of a workplace raid in Southern California, stated that “No one doubts that the presence of large numbers of undocumented aliens in the country creates law enforcement problems of titanic proportions.”16 Chief Justice William Rehnquist report- edly referred to Mexican immigrants as “wetbacks” in a conference with his fellow justices in discussing an immigration case. Ignoring the heated debate among social scientists about the contribu- tion of undocumented immigrants to the economy, the Supreme Court stated unequivocally in 1975 that undocumented Mexicans “create sig- nificant economic and social problems, competing with citizens and legal resident aliens for jobs, and generating extra demand for social services.”17 Such perceptions inspired Chief Justice Burger to include an extraordinary appendix to an opinion describing in remarkable detail “the illegal alien problem,” which focused exclusively (and quite negatively) on unauthor- ized migration from Mexico into the United States.18 Similar concerns about “illegal aliens” from Mexico and other devel- oping nations consciously and unconsciously influence policy makers. For example, in arguing for an overhaul of immigration enforcement in 1981, then-attorney general William French Smith proclaimed that “we have lost control of our borders,”19 by which he specifically meant the US–­ Mexico border. Similar perceptions have prompted more recent
Mexico as a Sending Country 13 congressional action designed to bolster border enforcement to the south. While the government fortifies the southern border with Mexico, reports of undocumented immigrants being smuggled across the northern border with Canada fail to provoke comparable public concern. Concern with “aliens” and “illegal aliens” from Mexico is the primary lens through which many Americans view immigration today. The fol- lowing pages offer facts about Mexican migration to the United States and outline various perspectives on US–Mexico migration, “aliens,” and “illegal aliens.” Mexico as a Sending Country Although immigrants from around the world come to the United States, Mexico is the country that sends the most. This is in part due to geography. Mexico and the United States are neighbors that share a land border of almost two thousand miles. In addition, economic disparities exist between the two nations, although the Mexican economy has experienced signifi- cant growth in recent years, and the disparities between the United States and Mexico have consequently decreased over time. Over the last decade, somewhere in the neighborhood of a million immigrants—out of a total US population of more than 300 million (or less than .5 percent)—have lawfully come to the United States every year.20 Roughly one-fifth of the lawful immigrants each year come from Mexico. Table 1.1 shows the top five sending countries of lawful permanent resi- dents to the United States in fiscal year 2008. Table 1.1 Top five countries that send lawful permanent residents to the United States Country Immigrants Percentage of total (%) 1. Mexico 189,989 17.2 2. China, People’s Republic 80,271 7.3 3. India 63,352 5.7 4. Philippines 54,030 4.9 5. Cuba 49,500 4.5 Source: US Department of Homeland Security, Office of Immigration Statistics,“US Legal Per- manent Residents: 2008,” (Mar. 2009) (Table 3), at 4, available at www.dhs.gov/xlibrary/assets/ statistics/publications/lpr_fr_2008.pdf
14 Introduction Today, according to the best estimates available, roughly 11–12 million undocumented immigrants—about 4 percent of the population—live in the United States.21 About 60 percent, or approximately 7.2 million, are from Mexico. Countries throughout Central America, the Caribbean, South America, and Asia also send significant numbers of undocumented immigrants to the United States.22 Despite the growing concern with immigration, the percentage of immi- grants in the United States today—although numerically much greater than past epochs—is not all that different as a percentage of the total US population from that in the early twentieth century. Indeed, the percent- age of immigrants out of the total US population is equaled, and in some instances surpassed, by similar percentages in the early twentieth century.23 Growing pains resulted from the number of immigrants who settled in the United States during this period of US history; however, each wave of immigrants was more or less integrated into US society. Demographics of the Mexican Ancestry Population in the United States Here are some basics about the total population of persons of Mexican ancestry in the United States. “A record 12.7 million Mexican immigrants lived in the United States in 2008, a 17-fold increase since 1970. Mexicans now account for 32 percent of all immigrants. . . . More than half (55 per- cent) of the Mexican immigrants in this country are unauthorized. . . . The current Mexican share of all foreign born living in the United States—32 percent—is the highest concentration of immigrants to the United States from a single country since the late 19th century.”24 TheriseinMexicanmigrationhasfueledageneralgrowthintheLatina/o population in the United States. “According to the US Census Bureau, Latinas/os [today] are the largest minority group in the United States, com- prising approximately 44.3 million people or roughly 14.8 percent of the total US population. . . . The Pew Hispanic Center estimated that, in 2005, approximately 40 percent of the Hispanic population was foreign born. The Census estimates that about a quarter of all Latinas/os in this country are not US citizens. In 2003, 33.5 million foreign-born people lived in the United States, with more than one-half born in Latin America.”25 Because roughly one-quarter of all Latinas/os in the United States are not citizens, they cannot vote. The number of voting-eligible Latinas/os is
Immigration and Immigration Policy:A Mexican Immigrant Perspective 15 further diminished by those under eighteen years old, which is a larger per- centage of the Latina/o community than of others. Thus, the voting power of Latinas/os does not necessarily match the raw numbers of Latinas/os in the United States, a significant factor if one seeks to change US immigra- tion laws and enforcement policies through political means. We discuss the impact of US immigration laws on Latina/o voting power in chapter 12. Importantly, the last two decades have seen a significant change in the settlement patterns of Mexican immigrants in the United States. Mexican immigrant communities have emerged in places in the Midwest, South, and Northeast like Postville, Iowa; Rogers, Arkansas; Prince William County, Virginia; and Hazleton, Pennsylvania, which have not historically been des- tination points for Mexican immigrants. Immigrants have settled in these localities because of the high demand for relatively unskilled labor in agri- culture, poultry and meat, and other industries. As we shall see in chapter 10, the new settlement patterns have at times resulted in social tensions. Immigration and Immigration Policy: A Mexican Immigrant Perspective Contrary to the claims of restrictionists who complain about migrants coming to secure public benefits or to commit crime, the great weight of scholarly research concludes that Mexican immigrants come to the United States primarily for employment opportunities and to rejoin family. More economic opportunities exist in this country than in Mexico. Put simply, migration from Mexico is in large part a labor migration. There is much demand for low-skilled labor in the United States, and workers, with legal immigration status or not, can land jobs. Few avenues for low-skilled citi- zens to immigrate lawfully to the United States exist under US immigra- tion laws, thereby creating incentives for undocumented migration. In addition, political and other freedoms in the United States attract migrants. Importantly, economic opportunities exist for Mexican immigrants in this country whether or not they are documented. The employment of undocumented immigrants in the United States has some labor market impacts. Unfortunately, the segregation of the labor markets along immi- gration status lines today in important ways resembles the systematic seg- regation of whites and African Americans in the days of Jim Crow. A separate and unequal labor market exists for undocumented immigrants, who are predominantly people of color.
16 Introduction US immigration laws have historically operated—and continue to oper- ate—to prevent many poor and working people of color from migrating lawfully to the United States. Although Congress in 1965 eliminated bla- tant racial exclusions from immigration laws, many provisions of current US immigration laws that limit entry into the United States continue to have racially disparate impacts. Everything else being equal, people from the developing world—predominantly “people of color” as that category is popularly understood in the United States—find it much more difficult under US immigration laws to migrate to this country than similarly situ- ated noncitizens from the developed (and predominantly white) world. Consequently, for many prospective immigrants lacking realistic legal avenues, economic incentives exist to migrate or stay unlawfully in the United States. Given those incentives, it should be no surprise that we today have an estimated 12 million undocumented immigrants living in the United States, with close to 60 percent from Mexico. Many of them toil in a separate, largely racially segregated, labor market. Ultimately, we see a labor control system, with immigration law integral to its creation and maintenance, akin to some of the devices that existed in the Jim Crow South in the wake of the abolition of slavery. What causes the flow of undocumented immigrants from Mexico and other developing nations to the United States? Under US immigration laws, as discussed in chapters 5 and 6, unskilled workers without rela- tives in this country have few legal avenues to lawfully immigrate here. Employment visas are generally reserved for highly skilled workers. Low- and medium-skilled workers lack practical lawful immigration opportu- nities. Despite the claims of restrictionists that “illegal aliens” should wait in line like everyone else, there is simply no line for many of them to wait in to lawfully immigrate to the United States. As a result, many of these prospective workers have the incentive to enter or remain in the country in violation of US immigration laws. The exploitation of working-class undocumented immigrants in the United States continues virtually unabated. Unfortunately, undocumented workers often enjoy precious few protections under the law. The state of California, for example, has only a handful of personnel to enforce the state labor code in the vast Central Valley, the home of a thriving population of undocumented workers. In a case involving an undocumented worker from Mexico, the US Supreme Court greatly limited the relief available
Immigration and Immigration Policy:A Mexican Immigrant Perspective 17 (and denied backpay) to an undocumented worker whose right to organize under federal labor law had been flagrantly violated by the employer.26 Undocumented immigrants who successfully make it to this country participate in a labor force with a racial caste quality, due largely to the operation of US immigration laws. Indeed, in the United States today, nothing less than dual labor markets exist. Undocumented workers— predominantly people of color—participate in one market, often without the protection of the minimum wage and other labor laws. Mexican and other Latina/o undocumented immigrants predominate in this secondary labor market. They are easily exploited, quickly disposed of, and generally extremely reluctant to complain about wages and conditions for fear that they will be deported. Wage, labor, and other protections are but a faraway dream for many undocumented workers in the United States. By designating a population of undocumented immigrants, US immigration laws help to create a pliable labor force that employers often easily control and exploit. In another labor market, US citizens and legal immigrants enjoy the protections of the law. In the old days, Jim Crow divided the job markets, with whites enjoy- ing access to higher-paying jobs and African Americans relegated to the lower-wage market. Some fair-complected African Americans would seek to “pass” to secure jobs in the better-paying labor market reserved for whites. Today, undocumented immigrants at times attempt to “pass” as lawful workers by using false identifications and fraudulent Social Secu- rity cards to access the legal and legitimate labor market with higher wages ordinarily reserved for US citizens and lawful immigrants. Aside from the dual labor market structure, another parallel between Jim Crow and the modern treatment of immigrants in the United States is facilitated by US immigration laws. As we discuss in chapter 10, over the last few years, several state and local governments have adopted measures that purport to regulate undocumented immigration and punish immi- grants, in effect seeking to force them out of town. The debates over the local immigration measures in many ways resemble the kinds of vicious local debates—with race and racism at their core—over housing and school integration measures in the 1950s and 1960s. Local ordinances that bar landlords from renting to undocumented immigrants, including ones adopted by the cities of Escondido, Califor- nia; Hazleton, Pennsylvania; Valley Park, Missouri; and Farmer’s Branch,
18 Introduction Texas, are a direct response to an increasing number of Latinas/os—not simply immigrants—moving into those cities. Some supporters of these laws seek to drive as many Latinas/os as possible out of town. This may sound familiar to those knowledgeable of housing discrimination and such things as restrictive covenants in housing deeds designed to exclude African Americans from white neighborhoods in the days of Jim Crow. In addition, states such as Arizona and Oklahoma have passed laws designed to sanction employers of undocumented immigrants and punish these immigrants. Withsimilaraims,somelocalgovernmentshaveunsuccessfullyattempted to address the efforts of day laborers, many of whom in some localities are undocumented immigrants from Mexico and Central America, to secure work. Ordinances have targeted day laborer pickup points, which can be found in cities and towns, large and small, across the United States. Home Depot stores across the country often serve as informal day laborer pickup points. These laborers are among the most vulnerable of all workers, often subject to exploitation, including nonpayment of wages and excessive hours in substandard working conditions. Consider just two examples of local governments attempting to regulate immigration and the impacts of the Latina/o community generally. In 2007, Prince William County, Virginia, responded to an increase of Latinas/os by adopting a measure that, among other things, required police officers to check the immigration status of anyone accused of breaking the law, even for a broken tail light, if the officers for some reason believed that the per- son was in the country unlawfully. This is nothing less than an invitation to racially profile, a frequently criticized practice that plagues Latinas/os (as well as African Americans) in the United States. Fearful of the impacts of the new law, Latinas/os—citizens as well as noncitizens—reportedly have moved out of Prince William County to neighboring localities and states. The upscale community of Escondido, California, less than one hun- dred miles from the US–Mexico border, is another local government that has tried to discourage undocumented immigrants from being visible in the city limits. The city passed an ordinance, which it later rescinded in the face of a formidable legal challenge, barring landlords from renting to undocumented immigrants. It also used traffic checkpoints to check driver’s licenses (in California and most other states, undocumented immi- grants are not eligible for driver’s licenses) and aggressive enforcement of housing, zoning, and other ordinances to discourage undocumented
A Mexican American Perspective 19 immigrants from living there. Like other cities, Escondido officials con- sidered a policy restricting drivers from picking up day laborers. A retired sheriff maintained that the city was doing nothing less than “looking for a way to reduce the number of brown people” in Escondido.27 Importantly, there is little indication that the labor provided by undocu- mented immigrants in cities with ordinances and policies like Prince Wil- liam County and Escondido will not be in demand to maintain the homes and yards and provide child care services, as well as work in restaurants, hotels, construction, and service industries. The elimination of day laborer pickup points, for example, would likely drive the employment of these workers further underground. It would not, however, be likely to dramat- ically affect the informal labor market that thrives and helps satisfy the economy’s thirst for inexpensive labor. A Mexican American Perspective Mexican Americans often have a deeply ambivalent view of immigration and immigrants from Mexico. At times, members of the established Mexi- can American community, like other groups of Americans, have expressed concern with the changes to communities brought by immigrants from Mexico. Tensions in East Los Angeles, California, and Phoenix, Arizona, for example, have grown with changes Mexican migrants have brought to the community. Complaints from Mexican Americans about immigration (like those of other Americans) run the gamut, from claims that the new- comers do not speak English to charges that too many live in one residence and fail to properly maintain the premises. At the same time, Mexican Americans have a great concern with immi- gration and immigration enforcement. Importantly, Mexican Americans— like most Americans—do not generally support open borders with Mexico. However, many persons of Mexican ancestry—US citizens included— express concern about racial profiling in immigration enforcement, which we discuss in detail in chapter 9. In addition, some Mexican American fami- lies are concerned with the impacts of immigration law and enforcement on themselves, their family members, and their friends. Many families are composed of members with different immigration statuses; in 2008, for example, 4 million US citizen children had undocumented parents. Some poor and working-class Mexican Americans also generally fear that immigrant workers will drive down wages. For all of the above
20 Introduction reasons, many Mexican Americans have considerable concern with the level of immigration to the United States and, more generally, with immi- gration law and policy. At times, Mexican Americans, including well-established US citizens, understand that the debate over immigration in the United States is often about popular fears about all persons of Mexican ancestry in the United States, not just about lawful and undocumented immigrants. In 1994, for example, polls showed that Mexican American citizens initially favored Proposition 187, California’s anti-immigrant measure. However, as the campaign clearly became more anti-Mexican as well as anti-immigrant, US citizens of Mexican ancestry moved to oppose the measure. Mexican American voters ultimately opposed it by an overwhelming 2–1 margin, which was the reverse of the final overall vote. Similar patterns can be seen in other related ballot measures, as well as in debates over immigration reform in general. The formation of Mexican American identity in the United States is an incredibly complex series of processes, which touches on immigration but goes well beyond the scope of this book.28 The US Government Perspective As interpreted by the US Supreme Court, the US Constitution entrusts the federal government with regulating immigration. Federal law, specifi- cally the comprehensive federal immigration law known as the Immigra- tion and Nationality Act, generally governs the admission and removal of immigrants. The federal government has general concerns with the uniformity of immigration and naturalization rules and moderation of at times negative domestic reactions to immigrants. Immigration law and policies, as well as the treatment of immigrants generally, can in certain circumstances affect the relations of the United States with foreign nations. The national government also desires to maximize the economic ben- efits of immigration as well as its possible political implications. It receives substantial tax revenues from immigrants, including undocumented immigrants who pay taxes with the hope of sometime regularizing their legal status. (This can be accomplished through securing a Tax Identifi- cation Number; needless to say, the Internal Revenue Service accepts tax returns and taxes without questioning the immigration status of the filer.)
A Mexican Government Perspective 21 Undocumented immigrants who work with false Social Security numbers contribute billions of dollars each year to a system from which they in all likelihood will never collect benefits. Border control and immigration enforcement are popular with the fed- eral government in no small part because they are popular with the general public. The US government also has some interest in protecting human rights of noncitizens and has treaty obligations to not deport noncitizens fleeing torture and political and related forms of persecution to their native countries. A Mexican Government Perspective The Mexican government has many concerns with the migration of its citizens to the United States. We can expect the government to be con- cerned with the treatment and well-being of its citizens, in other words, the human rights of its citizens in the United States who are subject to various border enforcement measures. Restrictionists often claim that the Mexican government is responsible for the migration of its citizens north; however, the Mexican government has limits on what it can do to prevent its nationals from leaving the coun- try. It also feels pressure to save the lives of its citizens in their efforts to journey to the United States. Recall that the US government harshly criti- cized the old Soviet Union, and the Eastern bloc generally, for refusing to allow its citizens to emigrate to the West. The Mexican government also has economic concerns with the migra- tion of its nationals. Each year, billions of dollars in remittances from Mexican workers in the United States flow back to Mexico. Although remittances have fallen somewhat in recent years due to the economic downturn in this country, Mexico received in the neighborhood of $25 bil- lion—a huge supplement to its economy—in 2007 from its citizens work- ing in the United States. In this vein, “hometown clubs” have emerged through which migrants raise funds to send to their hometowns in Mexico and build roads, bridges, and other municipal improvements. The clubs, and remittances generally, greatly benefit the Mexican economy and reduce the fiscal (and political) pressures facing the Mexican government. The Mexican government has political interests in the migration of its citizens to the United States as well. The flow of migrants out of the coun- try serves as a sort of political safety valve, with some of the most unhappy
22 Introduction people leaving the country to pursue economic opportunity, as well as political freedoms, in the United States. The North American Free Trade Agreement, for example, has caused adjustments in the Mexican economy that have resulted in migration pressures in recent years as well as increased internal dissent among certain segments of Mexican society. Immigration to the United States has thus helped to dampen political dissent in Mexico. The Perspective of State and Local Governments As we shall see in chapter 10, tensions over immigration, as well as the changes brought by immigrants, in recent years have been high in some state and local jurisdictions. Some of the concerns grew worse with the failure of Congress to address undocumented immigration and pass immigration reform in 2007. Fears grew as demographic changes resulting from migra- tion affected areas of the United States that had not seen significant immi- gration from Mexico, such as parts of the East, Midwest, and South. Prince William County, Virginia, discussed earlier in this chapter, is one example. The state of Arizona, which passed a controversial anti-­ immigration law in 2010 that was largely struck down by a federal court, is another. A number of concerns contribute to tensions at the state and local lev- els over immigration. First, controversy has emerged over the proper role of the state and local governments vís-a-vís the federal government in regulating immigration in recent years. State and local governments have moved to fill a perceived void and to rectify the failure of the US govern- ment to act on immigration enforcement. Second, immigration imposes costs on state and local governments that are not always reimbursed by the US government, which is primar- ily in charge of regulating immigration and receives the bulk of the tax benefits. For example, state and local governments pay the bulk of the costs of elementary and secondary education, which must be provided to undocumented children, as well as emergency health care and services. In addition to receiving the bulk of tax contributions from immigrants (including roughly one-half of all undocumented immigrants), the fed- eral government also receives Social Security contributions (amounting to billions of dollars each year in contributions from undocumented work- ers who will never be eligible for Social Security benefits).29 The federal government also collects tax revenues from businesses that profit—and
The Ordinary US Citizen Perspective 23 profit handsomely—from low-cost Mexican labor. The “fiscal disconnect” between federal and state and local governments exacerbates frustration with immigration and immigrants by the state and local governments, which in modern times are trying to balance tight budgets. The Ordinary US Citizen Perspective It is difficult to characterize the view of US citizens toward immigrants. On the one hand, the public has had open arms for the immigrants of the world, with the Statue of Liberty exemplifying this ideal. Many Americans sincerely believe in this heroic vision of America. On the other hand, the United States at times has suffered from anti- immigrant backlashes, both historically and in more recent years. Immi- grants have been blamed for the social problems of the day, whether it be the economy, social tensions, crime, disease, or related problems. These xenophobic outbursts are often most fiery when immigrants viewed as racially different are the predominant immigrants of the day. Workers may also hold economic fears, namely that immigrant workers will depress wages as well as compete for scarce public benefits. Such fears increase in tough economic times. Some observers have claimed that Afri- can Americans are especially injured by inexpensive foreign labor. How- ever, studies show that the negative impacts of immigration on workers are relatively small (at most 1–3 percent of a depression in real wages) and generally suffered by only the most vulnerable in the job market, those without high school diplomas. As discussed previously, popular American culture often demonizes prospective immigrants of color—as well as those who reside here—as “aliens” or, even worse, “illegal aliens.” Class as well as racial aspects of the stereotypical noncitizens contribute to the conventional wisdom that immigrants are a pressing social problem. The widespread perception is that all “illegals” are poor and unskilled, a stereotype that is not supported by the available empirical evidence. Nonetheless, “the term ‘illegal alien’ now . . . carries undeniable racial overtones and is typically associated with the stereotype of an unskilled Mexican male laborer.”30 With both racial and class components, the stereotype helps to rationalize the calls for dehumanizing treatment of “illegal aliens” and aggressive enforcement of US immigra- tion laws through, among other things, force, technology, and fences.
24 Introduction ConcludingThoughts One thing is clear from US immigration history. The nation has been espe- cially prone to anti-immigrant outbursts at times of social stress and tur- moil. Untangling the myriad reasons for xenophobic outbursts is not easy. Both legitimate (economic cost) and illegitimate (racism) concerns have contributed to anti-immigrant sentiment. There are many different perspectives on immigration to, and immi- grants living in, the United States. Language and terminology are impor- tant as are care and sensitivity in considering the many issues surrounding, and perspectives about, migration from Mexico to the United States. Importantly, terminology—specifically, the references to “aliens” and “ille- gal aliens”—has direct and indirect impacts on the law, the immigration debate, and the treatment of noncitizens. Discussion Questions 1. Is calling someone an“illegal alien” really any different from calling someone a “wetback”? Is there any other term that could be used in polite company that is as pejorative,distancing,and downright insulting as“alien” (besides“ille- gal alien”)? With respect to terminology, what other term or terms might be better than “aliens” or “illegal aliens”? What about immigrant, undocumented immigrant, unauthorized worker, or human being? Is the term “anchor babies” (used by some to refer to the US-born and therefore US citizen children of undocumented immigrants) pejorative? 2. Should US immigration laws make distinctions between“aliens” and citizens in allocating the constitutional and other legal rights accorded to each group of persons? Why shouldn’t all residents in the community have equal legal rights? 3. Why do so many Americans appear to be hyperconcerned over migration to the United States from Mexico as opposed to that from other countries, such as Canada, Germany, or Russia? Are the fears racial, economic, social, or cultural (or all of the above)? Are the fears generated by the magnitude of the migration from Mexico to the United States? Or are people simply resistant to particular kinds of change? Please explain and support your reasoning. Per- spectives vary widely on the costs and benefits of migration from Mexico to
Notes 25 the United States.How can we as a society promote education,understanding, and common ground on the issue of migration from Mexico, as well as on immigration and immigrants generally? Such an understanding would seem to be necessary for immigration reform. 4. Immigrants have historically been scapegoated and demonized for the prob- lems of the day in the United States.Immigrants,for example,often are blamed for “taking jobs” from US citizens in times of economic distress, being prone to criminal activity, and, as exemplified by the Michael Savage quote at the beginning of the chapter, spreading communicable diseases. Recall the flap in 2009 over the “swine” flu outbreak and previous grossly exaggerated claims by CNN’s Lou Dobbs about immigrants spreading leprosy across the coun- try. Why are persons of Mexican ancestry so often blamed for US society’s problems? 5. Should the United States consider permitting the free migration of labor between Canada, Mexico, and the United States similar to the free trade of goods, services, and capital guaranteed by the North American Free Trade Agreement? See T. Alexander Aleinikoff, “Legal Immigration Reform: Toward Rationality and Equity,” in Blueprints for an Ideal Legal Immigration Policy, Center Paper 17, Richard D. Lamm and Alan Simpson eds. (Washington, D.C.: Center for Immigration Studies, 2001). Explain your reasoning. Suggested Readings Bender, Steven W. 2003. Greasers and Gringos: Latinos, Law, and the American Imagina- tion. New York: New York University Press. Bosniak, Linda. 2006. The Citizen and the Alien: Dilemmas of Contemporary Member- ship. Princeton, N.J.: Princeton University Press. Gutierrez, David. 1995. Walls and Mirrors: Mexican Americans, Mexican Immigrants, and The Politics of Ethnicity. Berkeley: University of California Press. Ngai, Mae. 2004. Impossible Subjects: Illegal Aliens and the Making of Modern America. Princeton, N.J.: Princeton University Press. Notes Epigraphs: Alexander M. Bickel, The Morality of Consent (New Haven, Conn.: Yale University Press, 1975), 53; Michael Savage, The Savage Nation, a talk radio show, April 2009. 1. Parts of the discussion of alien terminology in this chapter have been adapted from Kevin R. Johnson, “‘Aliens’ and US immigration laws: The Social and Legal
26 Introduction Construction of Nonpersons,” University of Miami Inter-American Law Review 28, no. 2 (1996–97): 263. 2. Gerald L. Neuman, “Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection,” UCLA Law Review 42 (1995): 1425, 1428, footnote omitted. 3. Gerald M. Rosberg, “The Protection of Aliens from Discriminatory Treatment by the National Government,” Supreme Court Review 1977 (1977): 275, 303. 4. Immigration and Nationality Act, § 101(a)(3), 8 USC § 1101(a)(3). 5. See Michael Omi and Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s, 2d ed. (New York: Routledge, 1994). 6. Bickel, The Morality of Consent, emphasis added. 7. The Court further stated that African Americans “had no rights which the white man was bound to respect.” Scott v. Sandford, 60 US 393, 407 (1857). 8. Hurtado v. United States, 410 US 578, 604 (1973), Douglas, J., dissenting; emphasis added. 9. Cara Buckley, “Teenagers’ Violent ‘Sport’ Led to Killing, Officials Say,” N.Y. Times, Nov. 20, 2008, A26. 10. Neuman, “Aliens as Outlaws,” note 2, at 1440–41. 11. United States v. Valenzuela-Bernal, 458 US 858, 864n5 (1982). 12. United States v. Cortez, 449 US 411, 418 (1981). 13. United States v. Martinez-Fuerte, 428 US 543, 552 (1976). 14. Plyler v. Doe, 457 US 202, 237 (1982), Powell, J., concurring. 15. United States v. Ortiz, 422 US 891, 899 (1975), Burger, C. J., concurring in judg- ment; emphasis added; footnote omitted. 16. INS v. Delgado, 466 US 210, 239 (1984), Brennan, J., dissenting in part; emphasis added. 17. United States v. Brignoni-Ponce, 422 US 873, 878–79 (1975). 18. United States v. Ortiz, 422 US 891, 900 (1985) (Burger, C.J., concurring in judg- ment), excerpting United States v. Baca, 368 F. Supp. 398, 402–08 (S.D. Cal. 1973). 19. Immigration Reform and Control Act of 1983: Hearings on H.R. 1510 Before the Subcomm. on Immigration, Refugees, and International Law of the House Comm. of the Judiciary, 98th Cong., 1st sess. (1983), testimony of Attorney General William French Smith, 1. 20. See US Department of Homeland Security, US Legal Permanent Residents: 2007 (March 2008), available at www.dhs.gov/xlibrary/assets/statistics/publications/LPR_ FR_2007.pdf 21. See Jeffrey S. Passel, The Size and Characteristics of the Unauthorized Migrant Pop- ulation in the US 5 (Pew Hispanic Center, Mar. 7, 2006). The number decreased to an estimated 11.1 million in March 2009. See Jeffrey Passel and D’Vera Cohn, US Unau- thorized Immigration Flows are Down Sharply Since Mid-Decade (Pew Hispanic Center, Sept. 1, 2010), available at http://pewhispanic.org/reports/report.php?ReportID=126.
Notes 27 22. See Jeffrey S. Passel and D’Vera Cohn, A Portrait of Unauthorized Immigrants in theUnitedStates21(PewHispanicCenter,Apr.14,2009),availableathttp://pewhispanic .org/files/reports/107.pdf. 23. See Migration Policy Institute, Size of the Foreign-Born Population and Foreign Born as a Percentage of the Total Population, for the United States: 1850 to 2006 (2007), available at www.migrationinformation.org/datahub/charts/final.fb.shtml. 24. Pew Hispanic Center, Fact Sheet: Mexican Immigrants in the United States, 2008 (Apr. 15, 2009), at 1–2, available at http://pewhispanic.org/files/factsheets/47.pdf. 25. Kevin R. Johnson, “A Handicapped, Not ‘Sleeping,’ Giant: The Devastating Impact of the Initiative Process on Latina/o and Immigrant Communities,” California Law Review 96 (2008): 1259, 1266, footnotes omitted. 26. Hoffman Plastic Compounds, Inc. v. NLRB 535 US 137 (2002). 27. Anna Gorman, “Undocumented? Unwelcome,” L.A. Times, July 13, 2008, B1, quoting Bill Flores, retired sheriff. 28. See generally Kevin R. Johnson, How Did You Get to Be Mexican?: A White/ Brown Man’s Search for Identity (Philadelphia: Temple University Press, 1999). 29. See Kevin R. Johnson, Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws (New York: New York University Press, 2007), 151–52. 30. Jayashri Srikantiah, “Perfect Victims and Real Survivors: The Iconic Victim in Domestic Human Trafficking Law,” Boston University Law Review 87 (2007): 157, 188–89, emphasis added.
2 A Brief History of Mexico–US Migration Patterns What’s past is prologue. —Shakespeare, The Tempest W hen Mexico won her independence from Spain in 1821, her northern border included all or part of what are now the states of California, Nevada, Utah, Arizona, New Mexico, Colo- rado, Wyoming, Oklahoma, Kansas, and Texas. From 1836 until 1853, the United States accomplished a land grab of epic proportions. By 1853, nearly two-thirds of Mexican territory had been acquired by the United States. This chapter briefly summarizes the history of migration between Mex- ico and the United States. That history properly begins with the tale of how the United States achieved its current geographic character at the expense of its neighbor to the south. Figure 2.1 depicts the northern territories of Mexico in 1821, when she became an independent state. This chapter first examines how the United States acquired, by hook or by crook, most of Mexico’s land. We will see how the Mexican territory of Tejas, now known as Texas, was occupied and finally taken by settlers from the United States. We then consider the project of US expansionism that sought to acquire, at first by negotiation and ultimately by conquest, the lands from California to Colorado. Finally, we examine the migration patterns from Mexico to the United States during the twentieth century, and conclude by summarizing demographic patterns depicting Mexicans residing in the north at the beginning of the twenty-first century. Tejas We are all familiar with newspaper headlines sounding the sensational alarm: “ILLEGAL ALIENS INVADE TEXAS!!!” In this case, however,
Tejas 29 the headline would have been in Spanish, Texas would have been spelled “Tejas,” the year would have been 1830, and the undocumented foreign nationals would have been Anglos moving south into Texas territory belonging to the nation of Mexico. Mexico initially adopted a lax policy of border control. Only three years after emerging as an independent nation, Mexico had passed the Immigra- tion Act of 1824, permitting foreign migration into its northern territories. What followed was a concerted and sustained flow of American settlers into Mexican lands. Mexico then became alarmed by the aggressive and hostile nature of the settlers and in 1830 passed a decree curtailing immi- gration into the Tejas territory. Despite the new law, the flow of Anglo settlers, now consisting largely of unlawful entrants (who today might be called undocumented immigrants), continued unabated. In 1835, the settlers in Tejas declared independence from Mexico. After several battles, including the infamous Battle of the Alamo and the decisive battle at San Jacinto, Texas won independence from Mexico and 2. 2.1. The vice royalty of New Spain, 1786–1821. Source: Reprinted with permission from The Atlas of Mexico (Austin: Bureau of Business Research, 1975), p. 26. Copyright by the Uni- versity of Texas Board of Regents.
30 A Brief History of Mexico–US Migration Patterns established the Lone Star Republic. Figure 2.2 displays the land Mexico lost during the Texas episode. After the declaration of Texas’s independence, a dispute continued over the location of its southern border. Mexico claimed that Texas territory was bordered by the Nueces River (north of present-day Corpus Christi), while Texas claimed its territory was bounded by the Rio Grande (known as the Rio Bravo in Mexico), about 150 miles farther south. This disputed terri- tory would become very important to the start of the US–Mexican War in 1846 and would be resolved only by the war itself. 2.2. Map of the Republic of Texas, 1836–1846, including land Mexico lost to Anglo set- tlers (Texas),disputed territory,and lands still held by Mexico.Source: Illustration by authors, based on maps found at en.wikipedia.org/wiki/Texas Annexation, en.wikipedia.org/wiki/ Gadsden_Purchase, and en.wikipedia.org/wiki/United_States_territorial_acquisitions.
The Treaty Territories 31 TheTreatyTerritories After the loss of Tejas, Mexico wished to avoid further erosion of its ter- ritories. A New York newspaper plainly stated: “Let the tide of emigra- tion flow toward California and the American population will soon be sufficiently numerous to play the Texas game.”1 Eager to preserve the remainder of its northern territories, Mexico from 1836 to 1846 undertook a program of deliberately populating the areas that now comprise Califor- nia and New Mexico. To that end, the Mexican government made large empresario land grants, encouraging Mexicans to move to the northern ter- ritories. Consequently, many Mexicans, referred to as Norteños, relocated to the territories of California and Nuevo Mexico. In 1844, James K. Polk was elected president of the United States on a platform of “Manifest Destiny,” promising the westward expansion of the United States. Within a year, Texas was admitted as a state to the Union. In 1845, President Polk sent a mission, headed by John Slidell, to Mexico to bargain for the purchase of California and New Mexico, and to settle the disputed Texas boundary. The Mexican government rebuffed the Slidell mission, refusing to discuss the sale of its territory. President Polk ordered American troops into the disputed Texas ter- ritory between the Nueces River and the Rio Grande. On April 25, 1846, there was a skirmish between the American and Mexican soldiers. Presi- dent Polk famously declared, “American blood had been spilt on Ameri- can soil.” The US Congress quickly declared war on Mexico. The war against Mexico was unpopular in many quarters of the United States. Many saw it as an unjust provocation, designed simply to acquire land by force from a weaker nation. Others were concerned that the newly acquired land would result in the establishment of new slave states, thus altering the delicate political balance on the United States’ most controver- sial issue of the day: slavery. No less a figure than Abraham Lincoln weighed in against the justness of the US war of aggression on Mexico. In 1847, Lincoln began his first (and, perhaps because of his courageous rejection of the war, his only) term representing Illinois in the US House of Representatives. The freshman member of Congress wrote what was known as the Spot Resolutions, in which he demanded that President Polk produce evidence of the exact spot on which American blood was shed. The House never considered, much less debated, the resolution.
32 A Brief History of Mexico–US Migration Patterns Lasting from 1846 to 1848, the US–Mexican War resulted in a humiliat- ing defeat for Mexico. To end the hostilities, Mexico and the United States negotiated the Treaty of Guadalupe Hidalgo, which, besides ending the war, ceded a tremendous amount of Mexican territory to the United States. Figure 2.3 shows the area of present-day United States that changed hands as a result of the treaty. The war also settled the disputed Texas border (see figure 2.2) in favor of the United States. In 1853, the last bit of land changed hands, as the US government initi- ated the Gadsden Purchase (see figure 2.3 for area of Gadsden Purchase in 2.3. Land Mexico ceded to the United States through the Treaty of Guadalupe Hidalgo (1848),and some of the lands ceded through the Gadsden Purchase (1853).Source: Illustration by authors,based on maps found at en.wikipedia.org/wiki/TexasAnnexation,en.wikipedia.org/ wiki/Gadsden_Purchase, and en.wikipedia.org/wiki/United_States_territorial_acquisitions.
The Treaty Territories 33 New Mexico and Arizona) for the purposes of constructing a transconti- nental railroad through the southern United States. In summary, the US government conducted its land grab from Mexico in four parts: 1.  1836 Texas insurrection, with the land entering the United States in 1845; 2. the disputed southern border of the Texas territories, with the US– Mexican War finally settling these claims in favor of the United States in 1848; 3.  the lands ceded by Mexico to the United States in 1848 by the Treaty of Guadalupe Hidalgo; and 4.  the Gadsden Purchase of 1853. From 1836 to 1853, the United States thus acquired nearly two-thirds of Mexico’s entire territory. With the land came people, including the Norteños who had come north only a few years before the outbreak of war. The treaty included a provision in which Mexicans living on ceded territory could either become citizens of the United States or move south of the newly resettled border. Treaty of Guadalupe Hidalgo (1848),Article IX How Mexicans Remaining in CededTerritories May Become Citizens of the United States Mexicans who,in the territories aforesaid,shall not preserve the charac- ter of citizens of the Mexican republic, conformably with what is stipu- lated in the preceding article, shall be incorporated into the Union of the United States, and be admitted at the proper time (to be judged of by the congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the con- stitution; and in the mean time, shall be maintained and protected in the free enjoyment of their liberty, and property, and secured in the free exercise of their religion without restriction. ■
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“What doesn’t? Whether there is a strike or not?” “I’m not going to strike. They can do as they’ve a mind.” “But if the Union orders us out we’ll have to go.” “Not me.” “Supposing the strike succeeds, as it may—the Union’s very strong,—what will you do then?” “Stick to my work, and mind my own business.” “But the Union won’t let you. If the strike fails you’ll merely get the ill will of all the men; if it succeeds they’ll force you out of the works. There’s no use running your head against a brick wall, Mr. Braunt.” “You speak; you’ve got the gift o’ the gab,” said Braunt. “I’m too young. They won’t listen to me now. But a day will come when they will—aye, and the masters, too. I’d willingly devote my life to the cause of the workingman.” Marsten spoke with the fire of youthful enthusiasm, and was somewhat disconcerted when the other took his pipe from his mouth and laughed. “Why do you laugh?” “I’m laughing at you. I’m glad to know there’s some one that believes in us, but as thou says, thou ’art yoong; thou’ll know better- later on.” “Don’t you believe in yourself and your fellow-workers?” “Not me. I know ’em too well. By the sweat of thy brow shalt thou earn thy bread. Them’s not the right words, happen; but that’s the meaning. It has been, is now, and ever shall be. Amen.”
“I don’t object to that, Mr. Braunt,” cried the young man, rising and pacing the floor in his excitement. “Don’t think it. But I want to see everybody work. What I object to is earning your bread by the sweat of the hired man’s brow, as someone has said. Bless me! look at our numbers. We outnumber the loafers ten to one; yes, a hundred to one in every country in the world. All we need is an unselfish leader.” The elder man looked at him with a quizzical smile on his stern lips. “Look at the number of the sands on the seaside. Will any leader make a rope out of them? Numbers are nothing, my lad. Take care of yourself, Marsten, and never mind the workers; that’s the rule of the world. You may pull yourself up, but you can’t lift them with you. They’ve broken the hearts—aye, and the heads too, of many a one that tried to better them. You think you have only the masters and capital to fight. The masters won’t hurt you; it’s the men you’re fighting for that will down you. Wait till your head is an inch above the crowd, then you’ll catch it from the sticks of every rotten one of them that thinks he’s got as much right as you have to be in command. It isn’t money that helps the masters, it’s because they’ve the sense to know a good man when they see him, and to stand by him when they’ve got him. Don’t be deluded by numbers. What’s the good of them? One determined man who doesn’t need to bother about his backing—who knows his principals will back him through thick and thin—will beat any mob. Why can a small company of soldiers put down a riot? It’s because they’re commanded by one man. When he says ‘jump,’ they jump; when he says ‘shoot,’ they shoot. That’s the whole secret of it.” Braunt resumed his pipe, and smoked vigorously to get back to his usual state of taciturnity. Marsten had never heard him talk so long before, and he stood pondering what had been said. Braunt was the first to speak. “Play the Dead March, Jessie,” he said, gruffly.
The girl hesitated a moment, evidently loath to begin when Marsten was in the room, a slight hectic colour mounting to her cheek: but obedience was strong in her; her father was not a man to be disobeyed. She drew up her chair, and began Chopin’s Funeral March, playing it very badly, but still recognizably. Peace seemed to come over Braunt as he listened to the dirge. He sat back in the chair, his eyes on the ceiling, smoking steadily. Marsten sat down, meditating on what Braunt had said. He was not old enough to have his opinions fixed, and to be impervious to argument, so Braunt’s remarks troubled him. He hoped they were not true, but feared they might be. The mournful cadence of the music, which seemed to soothe the soul of the elder man, wound itself among the younger’s thoughts, and dragged them towards despair; the indifference of the men in front of the public-house flashed across his memory and depressed him. He wished Jessie would stop playing. “Ah,” said Braunt, with a deep sigh when she did stop. “That’s the grandest piece of music ever made. It runs in my head all day. The throb of the machinery at the works seems to be tuned to it. It’s in the roar of the streets. Come, my lad, I’ll go with you, because you want me to, not that it will do any good. I’ll speak if you like, not that they’ll care much for what I say—not hearken, very like. But come along, my lad.”
B CHAPTER VIII. raunt and Marsten passed from the dimness of Rose Garden Court into the brilliancy of Light Street, which on certain nights in the week was like one prolonged fair, each side being lined with heaped-up coster’s barrows, radiant with flaring gasoline. Incense was being burned—evil-smelling incense—to the God of Cheapness. Hordes of women, down at the heel, were bargaining with equally impecunious venders—meeting and chaffering on the common level of poverty. Turning into a side street and then into a narrower lane, the two men came to a huge building where the Salvation Army held its services—a building let temporarily to the employees of Monkton Hope for the discussion of their grievances. The place was crowded to the doors, and the latest comers had some difficulty in making their way along one side of the walls, nearer the front platform, where they at last found room half way between the doors and the speakers. Scimmins was in the chair, looking very uneasy and out of place, not knowing exactly what was expected of him, smiling a wan deprecatory smile occasionally as some of his pals in the crowd made audible remarks about his elevation, and the native dignity he brought to bear on his office. One gave it as his opinion (“if you awsked him”) that Scimmins would have looked more natural with a pint pot in his right hand, instead of the mallet with which he was supposed to keep order. On a row of chairs at the back of the platform sat the members of the committee, looking, most of them, quite as uncomfortable as the chairman. Several reporters were writing at a table provided for them. Sometimes one whispered a question to the chairman or a
member of the committee, and received the almost invariable answer, “Blest if I know, arsk Gibbons.” Gibbons was quite palpably the man of the hour. He was on his feet by virtue of his position as chairman of the committee and secretary to the Union, and was just finishing the reading of the committee’s report as Braunt and Marsten found standing-room at the side of the hall. “—And finally your committee begs leave to report that Mr. Sartwell, having rejected all overtures from your committee, refusing to confer with it either through its chairman, or as a body, it was resolved that this report be drawn up and presented to you in order that definite action may be taken upon it.” Gibbons, when he had finished reading the document, placed it upon the reporters’ table for their closer inspection. He had drawn up the report himself and was naturally rather proud of the wording, and he hoped to see it printed in the newspapers. He turned to his audience, after saluting the chairman. “Now, gentlemen, you have heard the report. The committee appointed by you, empowered by you, acting for you, vested in your authority, has done all in its power to bring this matter to an amicable conclusion; It has left no stone unturned, shrunk from no honourable means, spared no trouble, to bring about an understanding fair alike to employer and employee. But, gentlemen, your committee has been met at the very threshold with a difficulty which it could not surmount; a difficulty that has rendered all its efforts abortive. The firm of Monkton Hope refers the committee to Mr. Sartwell, the manager, and Mr. Sartwell absolutely refuses to see the committee and discuss anything with it. This man, who was once a workman himself, now arrogates——” Here one of the reporters pulled Gibbons’s coat-tail, and a whispered colloquy took place. When it was over, Gibbons continued: “A gentleman of the press has asked me a question—and
a very proper question it is. He asks if we threatened Mr. Sartwell in any way with a strike, as has been rumoured. Gentlemen, no threats of any kind whatever have been used.” (Cheers.) “We have approached Mr. Sartwell with the same deference that we would have approached a member of Her Majesty’s Government if we had a petition to present. The sum and substance of the whole business is that Mr. Sartwell absolutely refuses to treat with his own men when they have——” “That is not true,” said a voice, from the side of the hall. The crowd turned their heads towards the sound, noticeably gleeful at the interruption. It promised liveliness ahead. There was a murmur of pleasurable anticipation. Gibbons turned sharply towards the point from which the voice came. “What is not true?” he demanded. “It’s not true that Mr. Sartwell refuses to see his own men.” “Are you one of them?” “Yes. Are you?” There was a rustle of intense enjoyment at this palpable hit at Gibbons. The glib speaker himself was taken aback by the retort, but only for a moment. “I thought,” continued the secretary, “that it might have been some one sent here to interrupt this meeting. This may still be the case, but we will waive that point. We will not follow Mr. Sartwell’s example, and if there is any friend of his present we shall be pleased to hear from him at the proper time. As I was about to say when I was int——” “I answered your question; answer mine,” cried the voice. Gibbons glanced appealingly at the Chair for protection, and Scimmins rapped feebly with his gavel on the table in front of him,
saying, “Order, order,” but in a tone that he apparently hoped nobody would hear. “What is your question?” asked Gibbons, with an angry ring in his voice. “Are you an employee of Monkton Hope?” “I am secretary of the Union of which that firm’s men are a part, and I may add, the strongest Union in London. I am chairman of this committee, composed of that firm’s men. I did not seek the position, but was unanimously elected to it; therefore I claim that practically I am an employee of Monkton Hope, and that no man here has a better right to speak for those employees—aye, or to stand up for them against oppression—than I have. And I will tell the man who interrupts me—I’ll tell him to his face—that I am not to be brow- beaten from the path of duty, by him, or by Mr. Sartwell either, as long as I retain the confidence of the men who put me here. I acknowledge no other masters. If you want to address this meeting, come up here on the platform and face it like a man, and not stand barking there like a dog. Let’s have a look at you.” There was wild cheering at this. The fight was on, and the crowd was jubilant. This was the kind of talk they liked to hear. Braunt smote young Marsten on the back and pushed him forward. “Take oop the challenge, lad,” he cried. “Oop wi’ ye. I’ll follow ye, and give them some facts about the unemployed. We’ve got this meeting if we work it right. Oop wi’ ye, mate.” Marsten went toward the platform, the crowd making way for him. Gibbons stood for a moment apparently surprised at this unexpected opposition, then walked back to his chair at the head of the committee. The good-natured gathering cheered when they saw the young man standing before them. “Fellow-workingmen—” he began.
“Address the Chair,” admonished some one in the middle of the hall, whereat there was a laugh. Scimmins himself indulged in a sickly smile. The speaker reddened slightly, and in confused haste said: “Mr. Chairman and fellow-workers——-” The crowd cheered lustily, and it was some moments before Marsten could again get a hearing. A feeling of despair came over him as he stood before them. It was only too evident that they all looked upon the whole proceeding as a great lark, something in the way of a music-hall entertainment without the beer,—which was a drawback of course; but also without any charge for admission,— which was an advantage, for it left so much more cash to expend in stimulants after the fun was over. He wondered, as he looked at the chaffing jocular assemblage, whether he was taking too serious a view of the situation. There flashed across his mind a sentence he had heard in a lecture on socialism. “It is not the capitalist nor the government you have to conquer,” the lecturer had said, “but the workmen themselves.” When the disorder had subsided so that his voice could be heard, Marsten went on: “Mr. Gibbons asserted that the manager had refused to consult with his employees, and I claimed that such a statement was not true. Mr. Sartwell told me himself that he was willing to receive a deputation from the men of the works. He said——” “What’s that?” cried Gibbons, springing to his feet and taking a step forward. “Don’t interrupt the speaker,” shouted Braunt, from the body of the hall. “He interrupted me,” roared Gibbons, now thoroughly angry. Turning to the young man who stood there silently, waiting for statement and retort to cease, the secretary demanded:
“When did Sartwell tell you that?” “On Tuesday night.” “On Tuesday night!” repeated Gibbons, coming to the front of the platform. “On Tuesday night! and you have the brazen cheek to stand here and admit it.” “Why shouldn’t I?” asked Marsten, with perceptible self-control, but whitening around his tightened lips. “Why shouldn’t you? I’ll tell you why. Because you sneaked in behind the backs of the committee you had helped to appoint. That’s why.” “I had no hand in appointing the committee.” “Every man in the works had a hand in appointing the committee. If you didn’t vote, then you neglected your duty. If you voted against the committee, you were bound by the result just as the committee would have been bound, if they had been defeated. That’s trade unionism—stand together or fall together. You, knowing a committee had been appointed to deal with this very business, must go crawling to Sartwell, and undermine the work of your fellow- unionists.” “That’s a lie!” hissed Marsten, through his set teeth, in a low but intense tone of voice which was heard to the further end of the hall. The young man strode toward his antagonist, his right hand nervously clinching and unclinching. It was an electric moment,—the crowd held its breath. They expected the next move would be a blow. Gibbons stood his ground without flinching. Not a muscle of his face moved except his eyelids, which partially closed over his eyes, leaving a slit through which a steely glance shot at Marsten; but his answer was not so truculent as his look.
“If it’s a lie,” he said calmly, to the evident disappointment of his hearers, “then the lie is not mine. I was merely putting your own statements in a little terser language; that’s all.” Braunt, who had with difficulty kept his hot temper in hand during this colloquy on the stage, now roared at the top of his voice: “Give t’ lad a chance to speak and shut your silly mouth. He’s called you a liar like a man and you daren’t take him oop like a man. Sit down, you fool!” “I must really ask the protection of the Chair,” protested the secretary, turning to Scimmins. The latter, feeling that something was expected of him, rose rather uncertainly to his feet, and struck the table three or four times with his mallet. “Order, order!” he cried. “If there is any more disturbance down there, the man will be put out of the meeting. “What!” shouted Braunt. “Put me out! Egod! I’ll give ’ee th’ chance.” The big man made his way toward the platform, brushing aside from his path a few who, in the interests of law and order, endeavoured to oppose him. The majority of those present, however, were manifestly of opinion that the progress of the angry man should not be barred, so they cheered his intervention and made encouraging remarks. Braunt sprang upon the platform, advanced to the chair, smote his clinched fist on the table, and cried: “Here I am, Scimmins. Now put me out; d’ye hear?” He paused for a reply, but there was none. Scimmins, shrinking from him, obviously prepared for flight if Braunt attempted to storm the position. The Yorkshireman glared about him, but those on the platform appeared to think that the time for protest had not yet arrived. Meanwhile, the audience was calling loudly for a speech.
“I haven’t much to say, mates,” began Braunt, calming down through lack of opposition, “and I’m no man at the gab. I’m a worker, and all I want is a chance to earn my bread. But I’ll say this: I saw in t’ papers not so long ago that there’s twenty-seven thousand men of our trade out of work in England today. Twenty- seven thousand men anxious for a job. Now what is this man Gibbons asking you to do? He’s asking you to chook up your jobs and have your places taken by some of them twenty-seven thousand. Sartwell has only to put an advertisement in the papers, and he can fill the shops five times over in two days. It’s always easier to chook oop a job than to get a new one these times. I know, because I’ve tried it. So have most of you. Take my advice, and go no further with this nonsense. If Sartwell, as Mar-sten says, is willing to talk over grievances, then I say let us send him a deputation of our own men, with no outsiders among ’em. What’s the Union done for us? Taken our money every week, that’s all I can see. And now they have got so much of it they want to squander it fighting a strong man like Sartwell.” Marsten had sat down on the edge of the platform. We are always quicker to perceive the mistakes of others than to recognize our own, and he did not like Braunt’s talk against the Union. He felt that it would be unpopular, besides he believed in the Union if it were properly led. His fight was against Gibbons, not against the organization. Gibbons was in his chair, and he had rapidly taken the measure of the speaker. He saw that the address was having its effect, and that the crowd was slipping away from his control. It was a risky thing to do with such a powerful man, but he made up his mind that Braunt must be angered, when he would likely, in his violence, lose all the ground he had gained. So Gibbons quietly, with his eye, gathered up his trusty henchmen, who were scattered in different parts of the hall to give an appearance of unanimity to the shouting when the proper time came, and these men had now gradually edged to the front during the speaking. One or two had silently mounted the
platform and held a whispered conference with the secretary, after which they and some others took their places behind the seated committee. When Sartwell was alluded to, Gibbons arose. “Mr. Chairman,” he said, “I cannot allow——” Braunt turned on him like a raging lion. “Don’t you interrupt me,” he cried, rolling up his sleeves, “or I’ll bash you through that window.” “Order, order!” said the chairman, faintly. “Yes, an’ you atop o’ him!” shouted the infuriated man. “I’ve done it before.” “Respect the meeting, if you have no regard for the Chair,” said Gibbons, calmly. “You talk to us as if we were a parcel of fools,” cried a man in front. Braunt, like a baited bull, not knowing in which direction to rush, turned his eyes, blazing with rage, upon the last speaker. He shook his clenched fist and bared arm at the audience. “What else are you?” he roared, at the top of his voice. “A parcel o’ dommed fools, all o’ ye. Led by the nose by a still bigger fool than any o’ ye. Yes; a set o’ chattering idiots, that’s what ye are, with not enough brains among the lot o’ ye to turn a grindstone. I know ye, a beer-sodden gang, with just enough sense to see that your pint mug’s full.” By this time those in the hall were in a state of exasperation bordering on frenzy. A small door, to the right of the stage, connecting with an alley, had been opened, and a number of the more timid, seeing a storm impending, had quietly slipped out. The meeting was now a seething mob, crying for the blood of the man who stood there defying them and heaping contumely upon it.
Gibbons, his lips pale but firm, took a step forward. “We have had enough of this,” he said. “Get off the platform!” Braunt turned as if on a pivot, and rushed at the secretary. The latter stepped nimbly back, and one of his supporters, with a running jump and hop, planted his boot squarely in Braunt’s stomach. The impetus was so great, and the assault so sudden and unexpected, that Braunt, powerful as he was, doubled up like a two- foot rule, and fell backward from the platform to the floor. Instantly a dozen men pounced upon him, and hustled him, in spite of his striking out right and left, through the open door into the alley. The door was closed and bolted in the twinkling of an eye—Braunt outside and his assailants within. It was all so neatly and so quickly done, that the police, who had been on the alert for some time, only reached the spot when the door was bolted. The crowd, with but the vaguest general notion of what had happened, beyond the sudden backward collapse of Braunt, raised a wild cheer for which Gibbons was thankful. He did not wish them to know that Braunt had been taken in hand by the police outside, and he had been very anxious, if an arrest were inevitable, that it should not take place in the hall, for then even Braunt’s violent tirade would not have prevented universal sympathy turning towards him. While the cheer was ringing up to the roof, Gibbons had heard a terrific blow delivered against the door, a blow that nearly burst in the bolt and made the faces of those standing near turn pale. Another crashing hit shattered the panel and gave a glimpse for one moment of bleeding knuckles. Then there was an indication of a short sharp struggle in the alley, and all was quiet save the reverberating echo of the cheer. Gibbons strode to the front of the platform, and held up his hand for silence. “I am very sorry,” he said, “that the last speaker made some remarks which ought not to have been made, but let us all remember that hard words break no bones. However, there has been enough talk for one night, and it is time to proceed to
business. Gentlemen, you have heard the report of the committee— what is your pleasure?” “I move,” said a man, rising in the middle of the hall, “that we go on strike.” “I second that motion,” cried several voices. “Put the motion,” whispered Gibbons to the bewildered chairman. Scimmins rose to his feet. “You have all heard the motion,” he said. “All in favour say aye.” A seemingly universal shout of “Aye” arose. The chairman was on the point of resuming his seat when Gibbons, in a quick aside, said: “Contrary.” “All to the contrary,” called out the chairman, hovering between sitting and standing. There was no dissent, for Marsten had left to see what had become of his friend, and the timorous men had stolen away when they detected signs of disturbance. “Motion’s carried,” said Scimmins, seating himself with every indication of relief. “Unanimously,” added Gibbons loudly, unable to conceal his satisfaction with the result.
T CHAPTER IX. here are streets in Chelsea practically abandoned to studios. Long low buildings of one story, with many doors in front, and great broadsides of windows at the back, multipaned windows letting in from the north the light that artists love, lined these thoroughfares which Barney in his jocular off-hand manner called “aurora borealis” streets, because, as he always explained, they were so full of “northern lights.” Such studios were all very well for the ordinary everyday artist who exhibited at the Royal Academy and places of that sort; but a painter with a soul (and, incidentally, a reliable bank account) desired something better than one of these barns, so Barney had taken a house and fitted it up to meet his requirements. Craigenputtoch House, as Barney called it in tardy recognition of the genius of Thomas Carlyle, was a building of three stories, standing back from the street in grounds of its own. The rooms on the upper floor were allowed to remain as they were, and gave Barney bedrooms for himself and his friends; his hospitality being unique and unlimited. All the partitions on the first floor had been torn away, so that this portion of the house was formed into one vast apartment, with the exception of a space for a noble landing, up to which, in dignified manner befitting a temple of art, arose a broad flight of stone steps that replaced the ordinary wooden stairway which had contented the former occupants of the house. To afford the support necessary for the upper floor, now that the partitions were taken away, huge square beams of timber had been put in, and these gave the ceiling of the roomy studio that barn roof appearance so necessary to the production of works of the higher art. Barney’s mother objected to the bare coldness of the uncovered stone stairs. Being inside the house, she said, and not the steps that led to the front door, they should have a carpet on them. Barney
admitted that under ordinary circumstances this was so, and willingly offered to make a certain concession should the occasion arise. If Royalty visited him, he would put down the customary red carpet which the feet of Royalty were in the habit of treading. In fact, he admitted to his mother that a roll of red carpet had already been purchased, and was at that moment in the closet under the stairs, to be ready at a moment’s notice. But for every-day wear the steps should remain uncovered, because the stone stairways of the Pitti Palace were always bare, and as Barney intended ultimately to make Craigenputtoch House quite as celebrated in the world of art as the Florentine gallery, he would follow its precedent so far as stairs were concerned. There is nothing like beginning right. On the ground floor were dining-room and kitchen, below that a well-filled cellar. The hall was toned a rich Pompeiian red, and was lit by two windows of brilliant stained glass which had been put in when the building was transformed from a residence into a studio. “Oh, yes,” Barney would say, when he was complimented on these windows. “They are all very well in their way, but not original, don’t you know, not original. No, they are simply nicely executed copies of a portion of a window in Cologne Cathedral done in 1508. I placed them there temporarily, because I have been so busy that I have not had time to design anything better myself, which I shall do later on, don’t you know.” But of all the ornamental appendages to this studio, perhaps the most striking was Barney’s “man,” attired in a livery of blue, crimson, and silver, which was exceedingly effective. Although Barney had not had time to design a stained-glass window which would excel those of Cologne, he had been compelled to sketch out this livery, for it was not a thing that one could copy from abroad, and the Hope family had not been established long enough to have a recognized livery of its own. Nothing gives character and dignity to a place so much as a “man” sumptuously fitted out in a style that is palpably regardless of cost, and if it may be plainly seen that the “man” performs no needful function whatever, then is the effect
heightened, for few human beings attain the apex of utter inutility. The great hotels of this country recognize the distinction reflected upon them by the possession of a creature of splendour at their doors, who grandly wafts the incoming guests with a hand-wave towards the hall. But these persons of embellishment often demean themselves by opening the doors of cabs and performing other useful acts, thus detracting from their proper function, which was, Barney insisted, to content themselves with being merely beautiful. When a visitor once complained that the man at the top of the stair had refused to direct him into the studio, Barney laid his right hand in friendly brotherliness on the visitor’s shoulder, and said: “He knew, dear boy, that I would discharge him instantly if he so far forgot himself as to answer a question.” “Then what is he there for?” asked the visitor, with some indignation. “I don’t see the use of him.” “Quite so, quite so,” answered Barney, soothingly. “If you did, I would have to get rid of him and engage another, and, I can assure you, that perfectly useless persons six feet two in height are not to be picked up on every street corner. No, dear boy, they are not, I give you my word. People are so unthinking that they will ask foolish questions. I intend to discourage this habit as much as possible. You want to know what he is there for? Now if I had placed a marble statue at the top of the stair, you would not have been offended if it did not answer your query, don’t you know, and you would not have asked what it was there for, don’t you know. There are so many useful things in this world that something untainted with utilitarianism ought to be welcomed by every thinking man, and if this deplorably proficuous country is ever to be redeemed, we artists must lead the way, don’t you see.” The grand individual at the head of the stair had his uses, nevertheless; for when Haldiman and another, accepting Barney’s effusively cordial invitations to attend one of his “At Homes,”
entered-the hall below, and saw this magnificent person standing like a resplendent statue before and above them, Haldiman gasped, “Great Heavens!” and groped his way out on the pavement again, followed by the no less astounded other, who was an artist also struggling along in the black and white line. The two exchanged glances when at a safe distance from the studio, pausing as they did so. Their amazement was almost too great for words, yet Haldiman remarked solemnly: “I might have expected something of that sort. Imagine us dropping in there in these clothes! Lucky escape! I know a place on the King’s Road where there are fluids to drink. Let us go there and see if we can recover from this blow. O Barney, Barney, what deeds are done in thy name!” So the living statue silently warned off Barney’s two Bohemian friends, who are all right in Paris, don’t you know, but not at all desirable when a man settles down to serious work and expects nobility at his receptions. The calm dignity of Barney’s “man” was offset in a measure by the energetic activity of the boy in buttons who threw open the door with a flourish. “Buttons” might be likened to a torpedo boat, darting hither and thither under the shadow of a stately ironclad. While the left hand of the small boy opened the door, the right swept up to his cap in a semi-military salute that welcomed the coming and sped the parting guest. It would be difficult to imagine a room more suitable for an artistic function like Barney’s “At Homes” than Barney’s studio. The apartment was large, and it contained many nooks and crannies that the Tottenham Court Road furnisher had taken excellent advantage of. There were neat little corners for two; there were secluded alcoves fitted with luxurious seats; there were most alluring divans everywhere, and on the floor were the softest of Oriental rugs. Eastern lamps shed a subdued radiance over retired spots that otherwise would have been dark, and wherever a curtain could
hang, a curtain was hung. Barney’s most important works, framed in gold and silver or the natural wood, were draped effectively, and to prevent the non-artistic mind from making a fool of itself by guessing at the subject, the name of each picture stood out in black letters on the lower part of the frame. There were “Battersea Bridge at Midnight,” “Chelsea in a Fog,” “Cheyne Row at Three A. M.,” and other notable works, while one startling picture of the Thames in crimson and yellow showed Barney’s power to accomplish a feat, which, if we may trust a well-known saying, has been tried by many eminent men, but has been rendered unsuccessful by the incombustible nature of that celebrated river. Barney’s “afternoon” was at its height, when the bell was rung by a young man who had not received a card; but “Buttons” did not know that, and he swung open the door with a florid flourish as if the visitor had been a duke. The incomer was as much taken aback by the triumph of nature and art at the head of the stair as Haldiman had been, but although he paused for a moment in wonder, he did not retreat. He had a vague notion for an instant that it might be Barney himself, but reflection routed that idea. He was entering a world unfamiliar to him, but his common sense whispered that the inhabitants of this world did not dress in such a fashion. “Is Mr. Barnard Hope at home?” he asked. “Yessir,” answered the boy, with a bow and a wave of his hand. “This is his day. What name, sir?” “Marsten.” “Mr. Marsten,” shouted the boy up the stair. The decorated sphinx at the top was uninfluenced by the announcement, but a less resplendent menial appeared, who held back the heavy curtains as Marsten mounted the stair, and, when he entered, his name was flung ahead of him upon the murmur of conversation within. The sight that met Marsten’s eye as he entered the studio was rather disconcerting to a diffident man, but he was
relieved to notice, after a moment’s breathless pause beyond the threshold, that nobody paid the slightest attention to him. The large room seemed bewilderingly full of people, and a row of men were standing with their backs against the wall, as if they were part of the mural decoration. Many of them held tea-cups in their hands, and all of them looked more or less bored. The divans and chairs had been arranged in rows, as if for the viewing of some spectacle, and every seat was taken, most of the occupants being ladies. Two men-servants were handing around tea and cake, while Barney himself flitted hither and thither like a gigantic butterfly in a rose garden, scattering geniality and good-humour wherever he went. The steady hum of conversation was brightened constantly by silvery laughter. It was evident that the gathering, with the possible exception of that part of it standing pensively around the walls, was enjoying itself. As the throng slowly resolved into units before the gaze of young Marsten, his heart suddenly stopped, and then went on again at increased speed, as he recognized Edna Sartwell sitting on one of the front chairs, smiling at some humorous remark which Barney, leaning over her, was making. A moment before, Marsten had been conquering his impulse to retreat, by telling himself that all these idle persons were nothing to him; but now, when he had recognized one person who was everything to him, he had to quell his rising panic with a new formula. Although out of his depth and ill at ease, he knew that he would not quit the field in a fright before the task he had set himself was even begun. At the back of his nature there was a certain bull-dog obstinacy, the limitations of which had never yet been tested, although this unexpected meeting with a number of his fellow-creatures in an evidently higher social station than his own put a severe strain upon his moral courage. In vain he told himself that he was as good as any of them; for in his heart he did not believe that he was, so the assurance was of little value to him. Finally, he took his courage in his hand, and spoke to the servant who had held aside the curtains for him.
“Would you tell Mr. Hope that I wish to speak with him for a moment?” Barney approached the new-comer with smiling face and extended hand. “Oh, how-de-do, how-de-do? I am so glad you found time to come to my little affair. You are just in time—just in time, don’t you know.” Barney’s artistic eye rapidly took in the appearance of his guest, and all at once he realized that his clothes had not quite the air of Bond Street about them, in spite of the fact that they were flagrantly the best suit his visitor had. The smile faded from the artist’s face. “Oh, pardon me!” he added. “I thought I recognized you, but I don’t think I’ve had the pleasure of——” “No. We are not acquainted, Mr. Hope. I am one of the workmen in your father’s factory.” “Really. You have some message for me, perhaps?” “I came of my own motion. I wished very particularly to speak with you on business.” “Oh, but really, my good fellow, don’t you know! This is my ‘At Home’ day. I never talk business on these days, never. If you want to buy any of my pictures, or anything, don’t you know, you must come another day.” “I did not come about pictures, but about something vastly different and more serious.” “My good fellow—you’ll excuse my interrupting you, won’t you? There is no serious business except art, and to-day I don’t even talk art.” “Human lives,” said Marsten, hotly, “are more serious than art.”
“Please don’t raise your voice. You are certainly wrong about things, but I haven’t time to correct you to-day, don’t you know. All one needs to say about your last remark is that human lives are ephemeral, while art is everlasting Therefore is art the more important of the two. But we’ll let that pass. Can’t you come and talk another day? I’m sure I shall be delighted to see you at any time.” “Couldn’t you give me five minutes out on the landing?” “It is impossible. I cannot leave my guests. You see, we have the dancing Earl on in a few moments. His Grace is just now arranging his skirts. I really must go, don’t you know.” “Then I will stay until the Earl has done his dancing, if that is what he is here for.” “Do, my dear fellow, do. A most excellent idea. I am sure you will like it, for though I have not seen the dance myself, I understand it is quite unique. Have a cup of tea. I would have sent you a card, if I had thought that any of my father’s workmen were interested in the latest movements of art; but never mind the lack of invitation. If you care to stay without it, I shall be delighted. It is really very good of you to drop in, in this unexpected way; it is the kind of thing I like, so Bohemian, don’t you know. You’ll excuse me now, I’m sure,” and Barney tripped away to see that all arrangements for the appearance of the Earl were complete. The model-stand had been pushed to one end of the room fronting the audience; heavy curtains had been drawn across the big north window, leaving the place in semi-darkness; there was the hissing and sputtering of a lime-light in the gallery, causing inquisitive people to turn their heads and see what it was. Marsten stood against the wall beside another man, who said to him in a weary tone: “Who is this man, Barnard Hope?”
“He is an artist,” answered Marsten, astonished that one guest should question a stranger regarding their mutual host. “Evidently,” replied the other “But who are his people, or has he any? “His father is one of the richest manufacturers in London.” “Egad, I was sure of it. I knew there was a shop somewhere in the background, the fellow is so beastly civil.” Conversation was here interrupted by a figure leaping on the model-stand, while at the same instant a blinding white light was thrown from the gallery upon it. There was a ripple of applause and the Earl, a beardless youth of perhaps twenty, bowed. He looked like a girl in his clinging fluted skirts. He was a scion of an ancient noble family, founded by an affectionate dancer of the opposite sex in the reign of the second Charles, and it was quite in the regular order of things that there should be a recrudescence of terpsichorean ability in the latest member of the house. The white light changed to red and the skirt dance began. As it went on it was received with tumultuous applause, for a London audience is always easy to please, especially when there is no charge for admission at the doors. Still it must be admitted that the sprightly little Earl deserved the warmth of his reception, for his exhibition was a model of grace and agility, while his manipulation of the voluminous skirts left little to be desired. The variegated colours thrown on the fluttering whirling drapery gave a weird unearthly effect to the rapid movements of his Grace, and the grand finale, where a crimson light was flung upon the flimsy silk waving high above the dancer’s head, gave the agile young nobleman the appearance of one of the early martyrs wrapped in flames. The curtains were drawn back, the entranced assemblage rose to its feet, and, gathering about the host, congratulated him upon the success of his afternoon. Barney received these felicitations with exuberant gratification, and the young Earl, finally emerging from
behind the scenes, clothed and in his right mind, but a trifle breathless, accepted modestly his well-earned share of the compliments, for, let cynics say what they will, true merit is always sure of appreciation in the great city. Edna Sartwell lingered for a moment on the outskirts of the throng that pressed around Barney and the little Earl, then leisurely made her way towards the door, waiting for her step-mother, who lingered to thank her host. The men who had stood along the wall were already in the street, and the other visitors had nearly all departed. Marsten stood alone where he was when the entertainment was going on, gazing with beating heart at the girl he loved. She came slowly towards him, her head averted, watching her step-mother standing in the fast thinning group about Barney. There was a certain unconsciousness about her movements, as if the young man had hypnotized her, and was drawing her to him by mere force of will. At last her skirts touched him and his nerves tingled to his finger ends. Almost involuntarily, he murmured: “Miss Sartwell.” The girl turned her head quickly, and for a moment met his gaze without recognizing him. “My name is Marsten,” he said huskily, seeing she did not know him. “I met you the other evening at your fathers office, when he and I were talking of the strike.” “Oh, yes,” she replied; “at first I did not remember you. I—I did not expect to——” She paused and seemed confused, looking away from him. “To find me here,” said the young man, completing the sentence for her, and gathering courage as the delightful fact that he was actually talking to her impressed its almost unbelievable reality upon him. “I did not know there was anything like this going on. I came to consult with Mr. Hope on the same subject——” He flushed as the
memory of one subject arose in his mind, and he felt his newly acquired courage beginning to ebb again. He pulled himself together and ended lamely, “—about the strike, you know.” “Oh,” said Edna, instantly interested. “Is there anything new about the strike?” “Yes; there was a meeting last night, and it was unanimously resolved to quit work.” The colour left the girl’s cheeks. “And are the men out? Is that why you are here to-day?” “No; they do not go out until Saturday. I did what I could to prevent it, but without success. I applied to your father for this afternoon off, and he gave it to me without asking any questions. It seemed to me that in the few intervening days before the men go out, something might be done, when the enthusiasm of the meeting had died down. That’s why I came, but I’m afraid there is not much to look for here.” “Does father know?” “About the strike? Oh, yes.” The girl’s winsome face clouded with apprehension. “I am so sorry,” she said, at last. “I am sure it is not father’s fault, for he is kind to every one. Even if he is sometimes severe”—she cast a shy upward glance at the young man that made his heart beat faster —“he is always just.” “Yes, I know that is true. He will beat the men, and that is the reason I want moderate counsels to prevail. The workingman is always the under dog. Most of his mouthing friends are fools, and he himself is the greatest fool of all.” “Don’t you think you are a little hard on the workingman? Were you here in time to see the dancing Earl?”
She looked at him with a frank smile, and Marsten smiled in company with her—it brightened his face wonderfully, and established an evanescent bond of comradeship between them. “I had forgotten the Earl,” he said. “I must go now. I see my step-mother looking for me. I hope you will be successful in averting trouble at the works.” She extended her hand to him and he took it tenderly, fearing he might grasp it too closely and betray himself. Mrs. Sartwell and her step-daughter were the last to go. Barney threw himself on a divan and lit a cigarette. “Well, my young friend, here we are alone at last. Help yourself to the cigarettes and allow me to offer you something stronger than the tea with which we regale the ladies. We have several shots in the locker, so just name your particular favourite in the way of stimulant while I order a B and S for myself. You might not believe it, but one of these afternoons takes it out of a fellow more than a day’s work at the factory. Not that I ever indulged in factory work myself, but I think you said it was in your line.” “Yes,” said Marsten, after declining the offerings of his host. “It is about the factory I wish to speak with you. The men resolved last night to go out on strike.” “Foolish beggars.” “I quite agree with you. Their action is worse than foolish—that is why I came to see if you would intervene in any way so that a better state of feeling might be brought about.” “Well, now—let’s see, I believe I have forgotten your name, or did you tell me? Ah, Marsten—thanks—so many things on my mind, don’t you know. You see, Mr. Marsten, it’s really no business of mine, although I must admit that your offer of the position of arbitrator
flatters me. This makes twice I have been asked within a few days, so I think I must really be a born diplomat, don’t you know. But you see, there’s nothing I enjoy so much as minding my own business, and this strike is no affair of mine.” “I think it is. All the luxury you have here is surely earned by the men I am now speaking for.” “My dear fellow, you are not in the least flattering now; you are not, I assure you. You are saying in other words that my pictures do not sell.” “I had no intention of hinting anything of the kind. I have no doubt you can sell anything you paint.” “Ah, you are commending the artistic discernment of the British Public which—at present—is an honour the B. P. does not deserve. It will come round ultimately—the great B. P. always does—but not yet, my boy, not yet. Give it time, and it will pour cash in your lap. I regret that the moment—how shall I put it?—well, up to date, has not arrived. The workmen whom you honour by associating with, at present supply—as with perhaps unnecessary bluntness you state it —the financial deficiency. But the public will pay for it all in the end —every penny of it, my boy. You see these pictures around the walls? Very well; I hold them at two thousand pounds each. I find little difficulty in so holding them, for no section of the great British Public has, up to the present time, evinced any dogged desire to wrench them from me in exchange for so much gold. What is the consequence? I shall increase the price five hundred pounds every year, and the longer they hold off, the bigger sum they will have to pay, and serve them jolly well right, say I. Ten pictures twenty thousand pounds—this year. Next year twenty-five thousand pounds, and so on. With property on my hands increasing at that rate, I should be an idiot to urge people to buy. Ground rents in Belgravia are not in it with my pictures as investments. So you see, Mars-ten, when my day comes, the factory will be a mere triviality as an income producer compared with my brush, don’t you know.”
“But in the meantime?” “In the meantime, I am getting along very nicely, thank you. The strike will not affect me in the least. The men may have to diminish the amount of shag or whatever awful mixture they smoke, but I shall not consume one cigarette the less. I have done nothing to bring on this struggle. If the men want to fight, then, by jingo! let them, say I.” “The fight is not yet actually on and won’t be until Saturday. Now is the time for a cool-headed man to interfere and bring about an amicable understanding. Won’t you at least make the attempt, Mr. Hope?” “My dear Marsten, the way of the self-appointed arbitrator is hard. I was reading in this morning’s paper about your charming meeting, last night, and I noticed that one man who interfered was kicked off the platform and thrown out into a side street. That is the workingman’s idea of how an intellectual discussion should be terminated. I love the workingman myself, but I sometimes wish he would not argue with his hob-nailed boot. By the way, did you see this interesting episode? You were there, I suppose?” “Yes. Braunt, who was kicked out, is one of the best workmen in the factory, but very hot-tempered. He lost control of himself last night, under strong provocation, and when he was outside tried to batter in the door. The police interfered, and he knocked down three of them. This was disastrous, for he was fined five pounds this morning, and I have been trying to raise the money so that he need not go to prison; but we are in the minority—he exasperated our fellow-workmen—and I am not getting on well with the subscription list.” Barney sprang to his feet. “Knocked down three, did he? Goodman. That’s something like. It’s a most deplorable trait in my character that I somehow enjoy an assault on the police, and yet I recognize the general usefulness of
the force. Five pounds did you say? Then there will be the costs; I don’t understand much about these things, but I believe there are usually costs, on the principle of adding insult to injury, I suppose. Will a ten-pound note see him through? Good. Here it is. Three- pound-odd a policeman is not expensive when you think how much some of the luxuries here below cost, don’t you know. No thanks, Marsten, I beg of you; it’s a pleasure, I assure you.” As Marsten took the money a servant came in and said in a low voice: “Simpson wants to know if he may go, sir.” “Bless me, yes. I thought he had gone long ago. Simpson is my ornamental six-footer at the head of the stair; perhaps you noticed him as you came in. Poor fellow, he’s not allowed to do anything but stand there and look pretty, so I suppose it gets wearisome. Imagine such boy-stood-on-the-burning-deck devotion at this end of the nineteenth century! I had forgotten him, absorbed in your interesting conversation. Well, Marsten, I’m sorry I can’t arbitrate, but drop in again, and let me know how things go on. Good afternoon!”
O CHAPTER X. n Saturday the men took their well-earned pay, one by one, and went out of the gates quietly, if sullenly. During the days that had intervened between the meeting and the strike, neither side had made advances to the other. If Sartwell had prepared for the struggle, these preparations had been accomplished so secretly that Gibbons failed to learn of them. The secretary of the Union issued a manifesto to the press, setting forth the position of the men in temperate phrase that had the effect of bringing public sympathy largely to the side of the workers. It was an admirable document, and most of the papers published it, some of them editorially regretting the fact that in this enlightened country and this industrial age, some hundreds of men, the bone and sinew of the land, willing to work, were forced to go into the streets in protest against a tyranny that refused even to discuss their alleged wrongs. The newspapers pointed out that whether their grievances were just or not was beside the question; as the point was that the manager had refused to see a deputation, and this high-handed conduct the papers expressed themselves as forced to deplore. Both members of the firm thought this manifesto should be answered. The manager did not agree with them, so it was not answered. Pickets were placed before the gates, and a few extra policemen appeared, as if by accident, in the neighbourhood; but there was nothing for either policemen or pickets to do. On Monday, some of the men lounging around the place looked up at the tall chimneys, and saw them, for the first time during their remembrance, smokeless. They had never noticed the smoke before, but now its absence created an unexpected void in the murky outlook. It was as if the finger of death had touched those gaunt lofty stacks, and the
unusual silence of the place the men had always known to be so busy seemed to give the situation a lonely feeling of solemnity they had not looked, for. On Tuesday some dray-loads of new machinery arrived at the works, and these the pickets attempted to stop, but without success. Gibbons was consulted, but he took a sensible and liberal view of the matter. “Let them put in all the new machinery they wish. That will mean employment for more men when we go back. We will not interfere with Sartwell until he tries to fill the works with other employees.” For the remainder of the week the shops echoed with the clang of iron on iron, but no smoke came out of the tall chimneys. “Call this a fight?” said one of the men, over his mug of beer. “I call it a bean-feast.” On Saturday, strike pay was given out at headquarters, each man getting his usual wage, for the Union was rich. It was indeed a bean- feast—all pay and no work. The first week had enabled Sartwell to make repairs and to add machinery that had long been needed; but it had another effect which he considered more important still. It allowed Mr. Monkton and Mr. Hope to recover their second wind, as it were. These good but timorous men had been panic-stricken by the going out of their employees, and by the adverse comments of the press. As nothing happened during the week they gradually regained what they called their courage, and, although they perhaps did not realize it, they were more and more committed to the fight when it did come on. They could hardly with decency, after keeping silence for a week during which there was peace, give way if afterwards there should be violence. The vigilance of the pickets perhaps relaxed a little as time went on and there was nothing to do. But one morning they had a rude
awakening. When they arrived at the gates they saw smoke once more pouring from the chimneys; there was a hum of machinery; the works were in full blast; and the former workers were outside the gates. The news spread quickly, and the men gathered around the gates from all quarters. Gibbons was early on the ground, like an energetic general, ready to lead his men to the fray. He saw that the fight was now on, and he counselled moderation when he spoke to the excited men. It was all right, he answered them; he had expected this, and was prepared for it. The gates were closed, and when Gibbons asked admittance to speak with the manager his request was curtly refused. This refusal did not tend to allay the excitement, nor to improve the temper of the men. The police kept the throng on the move as much as possible, but the task became more and more difficult as the crowd increased. At noon a wagon, evidently loaded with provisions, drove down the street, and when the mob learned that its destination was the works, a cry went up that the vehicle should be upset. Again the pacifying influence of Gibbons made itself felt, and the wagon, amidst the jeers of the bystanders, drove in, while the gates were speedily closed after it. Gibbons retired with his captains to headquarters, where a consultation was held. There was a chance that Sartwell, during the first week, when it was supposed he was putting in new machinery, had also been building dormitories for his new men, and that he was going to keep them inside the gates, free from the influence of the Union. This plan had not been foreseen by Gibbons, and he was unprepared for it.
“The men must come out sooner or later, and when they do we will have a talk with them,” said the secretary. “My own opinion is that they will come out to-night at the usual hour, and I propose to act on that supposition. If I find I am wrong, we will meet again to- night, and I will have some proposals to make. In a short time we shall be able to learn whether the scabs are coming out or not. Meanwhile, get back among our own men, and advise them not to make any hostile demonstration when the blacklegs appear; and when the scabs come out, let each man of you persuade as many as you can to come to the big hall, where we can have a talk with them. Tell the men that if there is any violence they will be merely playing into Sartwell’s hands. We don’t want the police down on us, and, until there is a row, they will at least remain neutral.” This advice commended itself to all who heard it, and, the details of the programme having been ar ranged, they all departed for the scene of conflict. Promptly at six o’clock the gates were thrown open, and shortly after the “blacklegs” began to pour forth into the street. There were no hootings nor jeerings, but the strikers regarded the new-comers with scowling looks, while the latter seemed rather uncomfortable, many of them evidently apprehensive regarding their reception. “Men,” cried Gibbons, “who is your leader? I want a word with him.” The stream of humanity paused for a moment, in spite of the commands of the police to move along. The men looked at one another, and Gibbons quickly recognized the state of things—they were strangers to each other, coming as they did from all parts of England. This surmise was confirmed by one man, who spoke up: “We’ve got no leader,” he said. “Then you be the spokesman,” cried Gibbons. “Did you men know, when you came here, that there was a strike on?”
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    Immigration Law and theUS–Mexico Border ¿Sí se puede? Kevin R. Johnson and BernardTrujillo The University of Arizona Press Tucson
  • 9.
    The University ofArizona Press © 2011 The Arizona Board of Regents All rights reserved www.uapress.arizona.edu Library of Congress Cataloging-in-Publication Data Johnson, Kevin R. Immigration law and the US–Mexico border ¿Sí se puede? / Kevin R. Johnson, Ber- nard Trujillo.     p. cm. — (Mexican American experience) Includes bibliographical references and index. ISBN 978-0-8165-2780-9 (pbk.) 1. Emigration and immigration law—United States. 2. Illegal aliens—United States. 3. Border security—Mexican-American Border Region. 4. United States— Foreign relations—Mexico. 5. Mexico—Foreign relations—United States. I. Trujillo, Bernard, 1966– II. Title. KF4819.J6435 2011 342.7308'2–dc23 2011024944 Publication of this book is made possible in part by the proceeds of a permanent endow- ment created with the assistance of a Challenge Grant from the National Endowment for the Humanities, a federal agency. Manufactured in the United States of America on acid-free, archival-quality paper con- taining a minimum of 30 percent post-consumer waste and processed chlorine free. 16 15 14 13 12 11  6 5 4 3 2 1
  • 10.
    To my parents,Kenneth Johnson (1936–2010) and Angela Gallardo (1938–2007), both of whom taught me about the very best of the United States and Mexico. —Kevin R. Johnson For my father and mother, and for my wife, Victoria. —Bernard Trujillo
  • 12.
    Contents List of Illustrationsix Preface xi Acknowledgments xiii 1 Introduction 1 2 A Brief History of Mexico–US Migration Patterns 28 3 Federal Plenary Power over Immigration 43 4 The Administration and Enforcement of US Immigration Laws 73 5 Admissions 87 6 Inadmissibility 106 7 Removal 133 8 Regulating the Migration of Labor 148 9 US–Mexico Border Enforcement 169 10 State and Local Regulation of Immigration 198 11 National Security and Immigration Law and Policy 217 12 Integration, Protest, and Reform 241 Glossary of Terms 273 Index 285
  • 14.
    Illustrations Figures 2.1 The viceroyalty of New Spain, 1786–1821 29 2.2 Map of the Republic of Texas, 1836–1846 30 2.3 Land ceded to the United States through the Treaty of Guadalupe Hidalgo and the Gadsden Purchase 32 2.4 Hispanic population by county, 2000 39 2.5 Latin American–born population in select cities 40 4.1 Government entities that regulate immigration 76 5.1 Estimates of unauthorized immigrant population in the United States, 2000–2008 103 5.2 Unauthorized foreign-born immigrants 103 8.1 Employment status and education level of immigrants and US natives by gender 151 8.2 Employment status of documented and undocumented foreign nationals and US natives 154 8.3 Labor market status of undocumented foreign-born workers 154 8.4 Latinas/os by age and sex, undocumented, documented, and US natives 156–157 Tables 1.1 Top five countries that send lawful permanent residents to the United States 13 5.1 US Department of State visa chart, April 2009 90 5.2 Visa waiting period comparison between Swiss and Mexican immigrants 91 8.1 Employment of Latinas/os, by industry 150 8.2 Employment by industry and occupation in the United States, by nativity and Mexican birth 152 8.3 Labor market status of foreign-born Latinas/os, by period of arrival 153 8.4 Undocumented foreign national share of selected specific occupations 155 10.1 State and local law enforcement agencies with MOA to enforce federal immigration law 204
  • 16.
    Preface O ver the pasttwo hundred years, immigration has been a hot but- ton issue on the American political scene in times of crisis. Anxiet- ies over politics, economics, race and ethnicity, national identity, world events, and the status of US society in general have often been accompanied by public concern with immigration and the quantity and quality of immigrants coming to the United States. There can be no question that immigration is one of the major policy issuesthatthenationmustaddressinthetwenty-firstcentury.Today,people from radically different political persuasions agree on the need to “fix” the “broken” US immigration laws to address serious deficiencies and improve border enforcement. The ideas for reform run the gamut from more—and more—enforcement, including monumental efforts to close the borders, or even a moratorium on immigration, to more generous laws that pro- vide, for example, for “earned legalization” of undocumented immigrants, a guest worker program, and perhaps even more liberal admissions of for- eign workers to better accommodate the nation’s labor needs. The dawn of the new millennium saw considerable—and often very heated—debate over immigration reform. Pundits such as CNN’s Lou Dobbs, who abruptly left the network in fall 2009, and other commenta- tors decried the negative impacts that “illegal aliens” were having on the “American way of life.” Advocates of immigrants strongly disagreed. In spring 2006, tens of thousands of people took to the streets in cities across the United States to protest draconian immigration legislation passed by the US House of Representatives and demanded nothing less than simple justice for undocumented immigrants. Unfortunately, as we discuss in chapter 12, a political stalemate devel- oped, and comprehensive immigration reform subsequently failed in the US Congress—at least through the period in which this book was being written. “Amnesty” became nothing more than a dirty word among some policy makers and segments of the public; more enforcement through, among other things, an extension of the fence along the US–Mexico border was the only immigration reform measure that could carry the day. Recent developments, however, including the 2008 election of Presi- dent Barack Obama, the son of a Kenyan and supporter of comprehen- sive immigration reform, have again placed immigration reform on the national agenda. As this book goes to press, immigration reform continues
  • 17.
    xii PrefacePreface to be debatedin the halls of Congress and in cities and towns across the United States. Only time will tell, however, whether Congress will ulti- mately enact immigration reform legislation, and if so, what it will entail. This book focuses on what for many is the core of the entire immigration debate in modern America. Immigration to the United States from Mexico affects US citizens, including US citizens of Mexican ancestry; Mexican nationals; federal, state, and local governments in the United States; and the Mexican government. For generations, migrants in significant num- bers have come to the United States from south of the border. Perhaps not surprisingly, migration from Mexico has generated considerable contro- versy in US society. The racial, cultural, linguistic, and other differences of the migrants at times have triggered unquestionably negative reactions, if not xenophobic outbursts. In this book, we seek to explain the basic features of US immigration law and policy in an understandable way, paying special attention to how law and policy affect legal regulation of Mexican migration to the United States; the status of the Mexican-born population in the United States; the status of the Mexican American population in the United States; and rela- tions between the governments of the United States and Mexico. In looking at immigration from these vantage points, we explore two fundamental questions: (1) Why should Mexico and its citizens care about US immigration law and policy? (2) Why should Mexican Americans care about US immigration policy? Chapter 12 sketches some of the reform possibilities, with a brief discus- sion of the current complex politics of immigration in the United States. We have designed the book as an introductory reader on US–Mexico migration for college and university undergraduates as well as for a more general audience. This proved to be a formidable endeavor for two law professors, more familiar with writing about the technicalities of law for lawyers and law professors than writing for a general readership. Although we have striven to simplify where appropriate, we both hope that we have neither oversimplified nor left matters too complex. The reader is the best judge of our success. Students and teachers can keep up to date on current issues in immi- gration law by visiting the ImmigrationProf blog (lawprofessors.typepad. com/immigration), which is managed by four law professors, including Kevin R. Johnson, one of the founders of the blog. Kevin R. Johnson Bernard Trujillo
  • 18.
    Acknowledgments I thank my family,Virginia Salazar, Teresa, Tomás, and Elena, for sup- porting all that I do. Thanks to Donarae Reynolds, Glenda McGlashan, and Nina-Marie Bell for editorial and related support. Maryam Sayyed (UC Davis 2010), Janet Kim (UC Davis 2011), Aida Macedo (UC Davis 2011), Joanna Cuevas Ingram (UC Davis 2012), and Michael Wu (UC Davis 2012) provided invaluable research and editorial assistance. Tomás Salazar Johnson provided thoughtful and careful proofreading and editorial assistance. Teresa Salazar Johnson gave us permission to use her photographs from a photography and ethnography class at UC San Diego. Thanks to Adela de la Torre for the encouragement to write this book and for her generous support throughout the publication process. Thanks also to the Mabie-Apallas Chair and the UC Davis School of Law for financial support. Kevin R. Johnson I would like to thank Victoria Trujillo, Jay Conison, JoEllen Lind, Tina Duron, Amelia Peterson, Gabe Franco, Kathryn McEnery, Mitch Gilfillan, Allison Horton, Gabriel Gutierrez, Jennifer Morris Gutierrez, Andrew Huber, and Matthew Skilling. Bernard Trujillo
  • 20.
    Immigration Law and theUS–Mexico Border
  • 22.
    1 Introduction It has alwaysbeen easier, it always will be easier, to think of someone as a noncitizen than to decide that he is a nonperson. —Alexander M. Bickel, The Morality of Consent (emphasis added) Make no mistake about it: Illegal aliens are the carriers of the new strain of human–swine avian flu from Mexico. —Michael Savage, The Savage Nation (emphasis added) T his book in essence contends that the “problem” of undocumented immigration from Mexico to the United States, which dominates any discussion of immigration in this country, is a product of US immigration laws. There are simply too few legal avenues for low- and moderately skilled workers to migrate lawfully from Mexico to the United States. Consequently, undocumented migrants violate the law to work. Moreover, US immigration laws and their enforcement have disparate impacts based on race and nationality, in no small part because of the high demand for migration to the United States by many low- and moderately skilled workers from the developing world. Despite the disparate impacts of the laws, the courts in the United States have traditionally played an extremely limited role in reviewing the immi- gration laws. Congress—and a political process that sporadically lashes out at immigrants—has “plenary power” over immigration. The president has great discretion to enforce the immigration laws. Ultimately, this dynamic has negatively affected immigrants by contributing to the passage by Con- gress of punitive laws directed at them, enforced by the president, and unchecked by the judiciary. Moreover, as we discuss throughout this book, there is a long history of discrimination against US citizens of Mexican ancestry in the United States. Mexican Americans, US citizens as well as immigrants, are often stereotyped as “foreigners” subject to the full force of US immigration laws
  • 23.
    2 Introduction and theirenforcement. Unfortunately, the ancestry of Mexican Americans often limits their full acceptance into American society. Finally, despite the United States and Mexico sharing a nearly two- thousand-mile land border, the immigration rules that apply to nonciti- zens from Iceland generally apply with equal force to noncitizens from Mexico. The laws fail to consider the special relationship forged over centuries between the United States and Mexico, including the long his- tory of migration from Mexico to the United States, which has often been expressly or tacitly encouraged by the US government and employers. Immigrants—especially undocumented ones—from Mexico in the United States are often demonized in their new country, both in the communities in which they live and in the public debate over immigration. To clarify the public debate over immigration in the United States, chapter 1 offers critical background. As we shall see throughout this book, immigration law and policy throughout US history have generated great public concern and controversy. In particular, as we discuss in chapter 2, migration from Mexico to the United States has often been a hotly con- tested and controversial issue, especially beginning in the twentieth cen- tury, after the continental United States had been largely settled. The migration of people who are perceived to be of different races, cul- tures, and religions than the norm in the United States has often generated concern among the general American public. Change alone brought by the migration of people into a community can cause uneasiness, if not fear and loathing. Throughout US history, different waves of immigrants— Germans, Irish, Chinese, Japanese, southern and eastern Europeans, Arabs and Muslims, and Mexicans—have all sparked controversy among the general public, often for remarkably similar reasons, such as being seen as racially, culturally, and economically different as well as being seen as “unassimilable” to the American way of life. In this chapter, we step back to look at the broader contours of the debate over immigration in the United States, with a special emphasis on immigration from Mexico. We offer a number of different perspectives on migration from Mexico to this country. The “Alien” in the American Imagination The controversy over immigration to the United States begins with the basic terms used in the discussion of immigration. At first glance, this
  • 24.
    The “Alien” inthe American Imagination 3 might seem trivial but ultimately has great practical consequences. The word “alien” is a term of art used extensively in discussing the legal, politi- cal, and social rights of noncitizens in the United States.1 By definition, “aliens” are outsiders to the national community. Even if they have lived in this country for many years, have had children here—who, under the law, are US citizens—and work and have developed deep community ties in the United States, noncitizens remain “aliens,” an institutionalized “other,” different and apart from “us” in law and society. The classification of persons as aliens, as opposed to US citizens, has sig- nificant legal, social, and political importance. Citizens have a large bundle of political, social, economic, and civil rights, many of which are guaran- teed by the US Constitution; aliens have a much smaller bundle of rights, thereby enjoying far fewer constitutional and statutory protections. Citizens can protect themselves in the political process through voting and enjoy other political rights, such as jury service. In contrast, aliens, no matter what their ties to the community, enjoy very limited political rights. They generally cannot vote and, under US immigration laws, risk depor- tation if they engage in certain political activities that, if they were citi- zens, would be constitutionally protected. Noncitizens cannot sit on juries deciding the fate of fellow noncitizens charged with crimes, which thereby ensures that the jury in most cases will not reflect a genuine cross-section of the community. Perhaps most importantly, aliens can be deported and banished from the country (and from family, friends, job, and community) while US citizens can never be. For example, under US immigration laws, an alien convicted of possession of a few grams of marijuana—whatever his or her ties to this country, even those developed over an entire adult life in the United States— may be deported, while a US citizen convicted of mass murder can never be. The concept of the “alien” has more subtle social consequences as well. Most importantly, it reinforces and strengthens negative sentiments toward immigrants, which in turn influence US responses to immigration and human rights issues. Aliens have long been unpopular in the United States, though the particular group subject to the most antipathy—what one might call the “demons of the day”—has varied over time. As we dis- cuss in chapter 3, early in this nation’s history, Federalists pressed for pas- sage of the now infamous Alien and Sedition Acts to halt the migration of radical and subversive ideas from France and to cut off the burgeoning support for the Republican Party offered by new immigrants.
  • 25.
    4 Introduction Animosity towardother groups of aliens has occurred sporadically in US history. Benjamin Franklin decried the “criminal” (and, in his view, racially different) German immigrants flooding Pennsylvania in colonial times. Viewed as racially inferior, Irish immigrants in the 1800s generated great hostility and suffered widespread discrimination. Near the end of the nineteenth century, Chinese immigrants suffered violence and bore the brunt of a wave of draconian federal immigration laws notoriously known as the Chinese exclusion laws. Animosity directed at Japanese immigrants, as well as citizens of Japanese ancestry, culminated in their exclusion from the United States and their internment during World War II. Mexican immigrants were once disparaged—even in polite com- pany—as “wetbacks.” Today, Mexican immigrants are among the most disfavored in the United States, along with Arabs and Muslims, who find themselves demonized as “terrorists,” especially after the events of Sep- tember 11, 2001. As these historical events suggest, perceived racial difference has influ- enced the social and legal construction of “the alien.” Over time, the term has increasingly become associated with people of color from the develop- ing world who, at least in the United States, are racial minorities. Some restrictionist laws, such as those passed by Congress in the late 1800s bar- ring virtually all Chinese immigration, were expressly race based as well as class conscious (Chinese laborers were the primary focus of the exclusions laws). Before 1952, the law barred most nonwhite immigrants from natu- ralizing to become citizens, thereby forever relegating noncitizens of color to an alien status and effectively defining them as permanent outsiders in US society. The word “aliens” today is often nothing more than code for immi- grants of color, which has been facilitated by the changing racial demo- graphics of immigration. Today, “illegal alien” is often used—especially by self-proclaimed opponents of immigration—to refer to undocumented immigrants from Mexico. Many knowledgeable observers have expressed general concern with “alien” terminology in the US immigration law. Gerald Neuman has noted, “It is no coincidence that we still refer to noncitizens as ‘aliens,’ a term that calls attention to their ‘otherness,’ and even associates them with nonhuman invaders from outer space.”2 Gerald Rosberg acknowledged that “the very word, ‘alien,’ calls to mind someone strange and out of place, and it has often been used in a distinctly pejorative way.”3
  • 26.
    The “Alien” inthe American Imagination 5 However, despite the concerns, the term is regularly used in discussions of immigration. This is the almost inevitable result of “alien” being the nucleus of the comprehensive federal immigration law, the Immigration and Nationality Act (INA). Indeed, at a fundamental level, “alien” is the very DNA of the INA. The INA succinctly provides that an “alien” is “any person not a citizen or national of the United States.”4 The alien/citizen distinction has great practical importance for immigration laws; its rules for admission and removal primarily apply to aliens, not to US citizens. Today, academics generally consider the concept of “race” and “races” to be social constructions rather than anything fixed by biology or science.5 However, surprisingly little has been written about how the alien is socially and legally constructed as well. The truth of the matter is that the alien is made up out of whole cloth. It is only what we say it is. The alien represents a body of rules established by the courts and Congress and reinforced by popular culture. Society, often through the law, defines who is an alien, an institutionalized “other,” and who is not. It is society, through Congress and the courts, that determines which rights to afford aliens. Nothing is predetermined. All the legal and other baggage attached to the alien is the product of the human imagination. There is no inherent requirement that society establish a category of aliens at all. We as a nation could dole out political rights and obligations depending on residence in the community, which is how the public educa- tion and tax systems generally operate in the United States. Some commen- tators have advocated extending the franchise to noncitizen residents of this country, a common practice in many states and localities in the United States at the beginning of the twentieth century. Many alternatives to the term alien exist, including “human,” “person,” “immigrant,” “undocumented” or “unauthorized immigrant” or “undoc- umented worker.” “Alien” has many negative connotations and, similar to the social construction of races, the construction of the alien has justi- fied our legal system’s restrictive approach, offering noncitizens extremely limited rights. References to the “alien,” “aliens,” and “illegal aliens” as societal others thus helps make the harsh treatment of people from other countries seem reasonable and necessary. Consider the terms of the public debate. Today’s faceless “illegal aliens” are invading and wreaking havoc on the nation; “they” must be stopped or “we” will be destroyed. Such images, which Lou Dobbs for years sen- sationalized almost nightly on CNN, have helped animate and legitimate
  • 27.
    6 Introduction the politicalmovement to bolster enforcement of the border between the United States and Mexico and to crack down on immigration and immi- grants in general. The images that “alien” terminology creates have more far-reaching, often subtle, racial consequences. Federal and state laws regularly, and lawfully, discriminate against aliens. In contrast, governmental reliance on racial classifications ordinarily is unconstitutional. Because a majority of immigrants are people of color, alienage classifica- tions all too frequently serve as substitutes, or proxies, for discrimination based on race. Alienage discrimination, although overinclusive because it includes persons who are not minorities (put differently, not all “aliens” are people of color), allows one to disproportionately disadvantage people of color. We see this in operation in modern times, with the blaming of “illegal aliens” for the social ills of the United States, accompanied by a spike in hate crimes directed at Latinas/os, including US citizens as well as legal immigrants. As the increase in hate crimes demonstrates, the terminological issue is not simply a word game. “Alien” terminology serves important legal and social functions. In the quote that prefaces this chapter, Alexander Bickel perhaps said it best in the context of analyzing citizenship: “It has always been easier, it always will be easier, to think of someone as a noncitizen than to decide that he is a nonperson.”6 Aliens are partial members of the community with limited membership rights, which includes being potentially subject to treatment, such as depor- tation, that US citizens could never receive. An extreme example drives this point home. The US Supreme Court has held that, at least in certain circumstances, aliens may be detained indefinitely, consistent with the US Constitution. Citizens, of course, could never be subject to such treatment. The value of US citizenship is nothing new to American law. Long ago, the Supreme Court held that Dred Scott, a black man, was not a citizen and therefore could not sue for his freedom in the federal courts. By deny- ing citizenship to Dred Scott, the Court denied him a right—access to the federal courts—to which US citizens are ordinarily entitled, thereby high- lighting the fact that freed slaves generally were not considered full mem- bers of US society.7 Consider the linkage between alien status and citizenship under mod- ern immigration laws. The INA definition of an “alien” as not a US citizen or national is bland, yet the word “alien” alone evokes rich imagery. One
  • 28.
    Legal Rights of“Aliens” and “Illegal Aliens” 7 thinks of frightening (and often predatory) space invaders portrayed regu- larly in science fiction TV programs and movies. Popular culture reinforces the idea that aliens may be killed with impu- nity, and if we do not, “they” will destroy the world as we know it. Some of the synonyms for alien are particularly instructive in this regard: foreigner, interloper, intruder, invader, outsider, squatter, stranger—all terms that suggest the need for harsh treatment. In effect, the term “alien” serves to dehumanizepeopleandlegitimatetheirilltreatment,legallyandotherwise. We have few, if any, legal obligations to alien outsiders to the community, although we have obligations to persons. Persons have rights—including basic human rights—while aliens generally do not. The term “alien” not only intellectually legitimizes the mistreatment of noncitizens but it helps to mask true human suffering. Persons have human dignity, and their rights should be respected. Aliens deserve nei- ther human dignity nor legal rights. By distinguishing between aliens and persons, society is able to reconcile the disparate legal and social treatment afforded the two groups. Consider this phenomenon concretely. If we think that persons who come to the United States from another nation are hard-working and “good,” it is difficult to treat them punitively (as our immigration laws do). We generally would not refer to these good folks in ordinary conversa- tion as “aliens” or “illegal aliens.” If we think about them only as faceless masses of aliens, as criminals who take “American” jobs, sap limited public resources, and damage the environment, it is far easier to rationalize the harsh treatment of human beings. Legal Rights of “Aliens” and “Illegal Aliens” Terminology plays a prominent role in the legal system’s treatment of non- citizens, especially the limits on their legal rights. One justice of the US Supreme Court recognized the subtle yet discernible impact the terminol- ogy denoting different categories of “aliens” has on their treatment under the law. In a case involving the rights of immigrants, Justice William Doug- las dissented: “We cannot allow the Government’s insistent reference to these Mexican citizens as ‘deportable aliens’ to obscure the fact that they come before us as innocent persons who have not been charged with a crime.”8 The most damning terminology for noncitizens is “illegal alien,” unquestionably one of the most unpopular groups of aliens in the United
  • 29.
    8 Introduction States today.Restrictionists often rant about the evils of illegal aliens on talk radio. Although “alien” is the centerpiece of the INA, “illegal alien” is not defined by the omnibus federal immigration law. “Illegal alien,” rather, is a deeply pejorative term that implies criminality, thereby suggesting that persons who fall into this category deserve severe punishment, not any kind of legal protection. “They” are “illegal” as well as “aliens.” Despite its severely negative connotations, “illegal aliens” is common, if not standard, terminology in the modern debate over undocumented immigration. The “illegal alien” label, however, suffers from numerous inaccura- cies and inadequacies. Many nuances of US immigration law make it extremely difficult to distinguish between an “illegal” and a “legal” immi- grant. For example, as we discuss in chapter 7, a person living without documents in this country for a number of years may be eligible for relief from removal and to become a lawful permanent resident (LPR). He or she may have children born in this country, who are US citizens by opera- tion of the Fourteenth Amendment, as well as a job and community ties here. It is difficult to contend that this person is an “illegal alien,” indistin- guishable from a person who entered without inspection the day before yesterday. The vaguely defined, but emotionally powerful, “illegal alien” terminol- ogy also fails to distinguish between the different types of undocumented persons in the United States. There are persons who cross the border with- out inspection; another group of noncitizens enter lawfully but overstay or otherwise violate the terms of their business, tourist, student, or other temporary visas. This distinction is important because border enforcement measures, such as border fences and increased numbers of officers along the border, will have little impact on noncitizens who enter legally but overstay their visa. This helps reveal how “illegal alien” in public discus- sion ordinarily refers to a person who enters without inspection, often a national of Mexico. This is not surprising because the furor over illegal aliens often represents an attack on undocumented Mexicans, if not on lawful Mexican immigrants and Mexican American citizens, which is a central theme of this book. In this vein, history teaches that it is difficult to limit anti-alien sentiment to any one segment of the immigrant community, such as undocumented immigrants. This is evidenced by the slow reduction of public benefits to all categories of noncitizens in the 1990s. On the heels of the passage of Proposition 187 by the California voters in 1994, which focused on limiting
  • 30.
    Legal Rights of“Aliens” and “Illegal Aliens” 9 benefits to undocumented persons, Congress enacted welfare “reform” leg- islation in 1996 that greatly limited legal immigrants’ eligibility for public benefit programs. Mean-spirited characterizations of aliens have real-life consequences. As we discuss in chapter 10, anti-immigrant rhetoric in cities and coun- ties across the United States has escalated in the last few years. Not California’s Proposition 187 (1994) California’s Proposition 187 is nothing less than an immigration mile- stone of the 1990s and marked the beginning of an increasingly anti- immigrant period of US history. The measure, approved by California voters by a 2–1 margin, would have stripped undocumented immigrants of all public benefits, including a public school elementary and second- ary education for undocumented children.The terminology in regard to immigrants used by its proponents is telling: Some supporters of Proposition 187 expressed hopes and aims well beyond simply fiscal ones. One of the initiative sponsors, Ron Prince, baldly asserted that “illegal aliens are killing us in California. . . .Those who support illegal immigration are, in effect, anti-American.”1 One argument in support of Proposition 187 in the voters’ pamphlet demonstrates the deeply negative feelings about immigration and immi- grants:“Proposition 187 will be the first giant stride in ultimately ending the ILLEGAL ALIEN invasion.” The Proposition 187 media director for Southern California expressed even more disturbing and inflammatory concerns: Proposition 187 is . . . a logical step toward saving California from economic ruin. . . . By flooding the state with 2 million illegal aliens to date, and increasing that figure each of the fol- lowing 10 years, Mexicans in California would number 15 million to (continued)
  • 31.
    10 Introduction coincidentally, hatecrimes against all Latinas/os—not just immigrants— living in the United States have risen dramatically. In 2008, Latina/o immi- grants were killed in vicious attacks in rural Pennsylvania and suburban New York. The facts surrounding the 2008 killing of a lawful Ecuadoran immigrant, Marcelo Lucero, in Long Island, are chilling. A group of young men allegedly began the events of a hate-filled evening with the ominous statement: “Let’s go find some Mexicans.” The New York Times later reported: “Every now and then, perhaps once a week, seven young friends got together . . . to hunt down, and hurt, Hispanic men. They made a sport of it, calling their victims ‘beaners,’ . . . prosecutors said.”9 Not long before the killing of Marcelo Lucero, the local county executive had blamed undocumented immigrants for fiscal, economic, and various social problems. As the campaign surrounding Proposition 187 suggests, the negative images of the alien, often fed by restrictionist groups and politicians seek- ing punitive immigration measures, carry the day in the political process. “The discourse of legal [immigration] status permits coded discussion in which listeners will understand that reference is being made, not to aliens 20 million by 2004.During those 10 years about 5 million to 8 million Californians would have emigrated to other states. If these trends continued, a Mexico-controlled California could vote to establish Spanish as the sole language of California, 10 million more English- speaking Californians could flee, and there could be a statewide vote to leave the Union and annex California to Mexico. One of the initiative sponsors went even further and conjured up dis- turbing imagery from another era in advocating passage of the initiative: “You are the posse and the SOS [Save Our State, the supporter’s name for the initiative] is the rope.” 1. Kevin R. Johnson,“An Essay on Immigration Politics, Popular Democracy, and California’s Proposition 187: The Political Relevance and Legal Irrelevance of Race,” Washington Law Review 70 (1995): quotations on 629, 653–54, emphasis added; footnotes omitted. ■
  • 32.
    Legal Rights of“Aliens” and “Illegal Aliens” 11 in the abstract, but to the particular foreign group that is the principal focus of current hostility.”10 An important first association between aliens and racial minorities can be seen in the foundational immigration cases allowing for the exclusion and deportation of Chinese laborers in the late 1800s, which we discuss in chapter 3. Not long after, in the early part of the twentieth century, some states passed laws known as the “alien land laws” that, through incorpora- tion of the immigration and nationality laws, effectively barred persons of Japanese ancestry from owning real property. As mentioned above, in the modern debate about immigration, the alien has increasingly become associated with racial minorities. The words “alien” and “illegal alien” today carry subtle racial connotations. The domi- nant image of the alien is often that of an undocumented Mexican or some other person of color, perhaps a Haitian, Chinese, or Cuban person travel- ing by sea from a developing nation. Treating racial minorities poorly on the grounds that they are “aliens” or “illegal aliens” allows people to recon- cile the view that they “are not racist” while pursuing policies that punish certain groups of persons viewed as racially or otherwise different. Although the term “illegal alien” is seemingly race neutral, it is rela- tively easy to discern which noncitizens are the ones that provoke concern. Study of the use of the terminology in context reveals that, particularly in the Southwest, the term refers to undocumented Mexicans and plays into popular stereotypes about Mexicans as criminals. The terminology more effectively masks nativist sympathies and downright racism than the pop- ular vernacular that it replaced—“wetbacks,” which is even more closely linked to Mexican immigrants. The link between illegal aliens and Mexican citizens often goes unstated but is clear to the listener, whether it be a fellow anti-immigrant traveler or a person of Mexican ancestry. Indeed, the courts, with little explanation, often have approached the “illegal immigration problem” as an exclusively Mexican problem. For example, the late Justice William Brennan, a lib- eral on many social issues, writing for the US Supreme Court, suggests the equation in his mind between illegal aliens and Mexican immigrants: Employment of illegal aliens in times of high unemployment deprives citi- zens and legally admitted aliens of jobs; acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously
  • 33.
    12 Introduction depress wagescales and working conditions of citizens and legally admit- ted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions.These local problems are par- ticularly acute in California in light of the significant influx of illegal aliens from neighboring Mexico.11 The Supreme Court: Migration from Mexico as a “Colossal Problem” In focusing on the “illegal alien” as Mexican, US Supreme Court decisions are replete with negative imagery about undocumented immigration from Mexico. Such immigration, in the Court’s view, is a “colossal problem” posing “enormous difficulties”12 and “formidable law enforcement prob- lems.”13 One justice observed that immigration from Mexico is “virtually uncontrollable.”14 Chief Justice Warren Burger stated that the nation “is powerless to stop the tide of illegal aliens—and dangerous drugs—that daily and freely crosses our 2000-mile southern boundary [with Mexico].”15 Jus- tice William Brennan, in analyzing the lawfulness of a workplace raid in Southern California, stated that “No one doubts that the presence of large numbers of undocumented aliens in the country creates law enforcement problems of titanic proportions.”16 Chief Justice William Rehnquist report- edly referred to Mexican immigrants as “wetbacks” in a conference with his fellow justices in discussing an immigration case. Ignoring the heated debate among social scientists about the contribu- tion of undocumented immigrants to the economy, the Supreme Court stated unequivocally in 1975 that undocumented Mexicans “create sig- nificant economic and social problems, competing with citizens and legal resident aliens for jobs, and generating extra demand for social services.”17 Such perceptions inspired Chief Justice Burger to include an extraordinary appendix to an opinion describing in remarkable detail “the illegal alien problem,” which focused exclusively (and quite negatively) on unauthor- ized migration from Mexico into the United States.18 Similar concerns about “illegal aliens” from Mexico and other devel- oping nations consciously and unconsciously influence policy makers. For example, in arguing for an overhaul of immigration enforcement in 1981, then-attorney general William French Smith proclaimed that “we have lost control of our borders,”19 by which he specifically meant the US–­ Mexico border. Similar perceptions have prompted more recent
  • 34.
    Mexico as aSending Country 13 congressional action designed to bolster border enforcement to the south. While the government fortifies the southern border with Mexico, reports of undocumented immigrants being smuggled across the northern border with Canada fail to provoke comparable public concern. Concern with “aliens” and “illegal aliens” from Mexico is the primary lens through which many Americans view immigration today. The fol- lowing pages offer facts about Mexican migration to the United States and outline various perspectives on US–Mexico migration, “aliens,” and “illegal aliens.” Mexico as a Sending Country Although immigrants from around the world come to the United States, Mexico is the country that sends the most. This is in part due to geography. Mexico and the United States are neighbors that share a land border of almost two thousand miles. In addition, economic disparities exist between the two nations, although the Mexican economy has experienced signifi- cant growth in recent years, and the disparities between the United States and Mexico have consequently decreased over time. Over the last decade, somewhere in the neighborhood of a million immigrants—out of a total US population of more than 300 million (or less than .5 percent)—have lawfully come to the United States every year.20 Roughly one-fifth of the lawful immigrants each year come from Mexico. Table 1.1 shows the top five sending countries of lawful permanent resi- dents to the United States in fiscal year 2008. Table 1.1 Top five countries that send lawful permanent residents to the United States Country Immigrants Percentage of total (%) 1. Mexico 189,989 17.2 2. China, People’s Republic 80,271 7.3 3. India 63,352 5.7 4. Philippines 54,030 4.9 5. Cuba 49,500 4.5 Source: US Department of Homeland Security, Office of Immigration Statistics,“US Legal Per- manent Residents: 2008,” (Mar. 2009) (Table 3), at 4, available at www.dhs.gov/xlibrary/assets/ statistics/publications/lpr_fr_2008.pdf
  • 35.
    14 Introduction Today, accordingto the best estimates available, roughly 11–12 million undocumented immigrants—about 4 percent of the population—live in the United States.21 About 60 percent, or approximately 7.2 million, are from Mexico. Countries throughout Central America, the Caribbean, South America, and Asia also send significant numbers of undocumented immigrants to the United States.22 Despite the growing concern with immigration, the percentage of immi- grants in the United States today—although numerically much greater than past epochs—is not all that different as a percentage of the total US population from that in the early twentieth century. Indeed, the percent- age of immigrants out of the total US population is equaled, and in some instances surpassed, by similar percentages in the early twentieth century.23 Growing pains resulted from the number of immigrants who settled in the United States during this period of US history; however, each wave of immigrants was more or less integrated into US society. Demographics of the Mexican Ancestry Population in the United States Here are some basics about the total population of persons of Mexican ancestry in the United States. “A record 12.7 million Mexican immigrants lived in the United States in 2008, a 17-fold increase since 1970. Mexicans now account for 32 percent of all immigrants. . . . More than half (55 per- cent) of the Mexican immigrants in this country are unauthorized. . . . The current Mexican share of all foreign born living in the United States—32 percent—is the highest concentration of immigrants to the United States from a single country since the late 19th century.”24 TheriseinMexicanmigrationhasfueledageneralgrowthintheLatina/o population in the United States. “According to the US Census Bureau, Latinas/os [today] are the largest minority group in the United States, com- prising approximately 44.3 million people or roughly 14.8 percent of the total US population. . . . The Pew Hispanic Center estimated that, in 2005, approximately 40 percent of the Hispanic population was foreign born. The Census estimates that about a quarter of all Latinas/os in this country are not US citizens. In 2003, 33.5 million foreign-born people lived in the United States, with more than one-half born in Latin America.”25 Because roughly one-quarter of all Latinas/os in the United States are not citizens, they cannot vote. The number of voting-eligible Latinas/os is
  • 36.
    Immigration and ImmigrationPolicy:A Mexican Immigrant Perspective 15 further diminished by those under eighteen years old, which is a larger per- centage of the Latina/o community than of others. Thus, the voting power of Latinas/os does not necessarily match the raw numbers of Latinas/os in the United States, a significant factor if one seeks to change US immigra- tion laws and enforcement policies through political means. We discuss the impact of US immigration laws on Latina/o voting power in chapter 12. Importantly, the last two decades have seen a significant change in the settlement patterns of Mexican immigrants in the United States. Mexican immigrant communities have emerged in places in the Midwest, South, and Northeast like Postville, Iowa; Rogers, Arkansas; Prince William County, Virginia; and Hazleton, Pennsylvania, which have not historically been des- tination points for Mexican immigrants. Immigrants have settled in these localities because of the high demand for relatively unskilled labor in agri- culture, poultry and meat, and other industries. As we shall see in chapter 10, the new settlement patterns have at times resulted in social tensions. Immigration and Immigration Policy: A Mexican Immigrant Perspective Contrary to the claims of restrictionists who complain about migrants coming to secure public benefits or to commit crime, the great weight of scholarly research concludes that Mexican immigrants come to the United States primarily for employment opportunities and to rejoin family. More economic opportunities exist in this country than in Mexico. Put simply, migration from Mexico is in large part a labor migration. There is much demand for low-skilled labor in the United States, and workers, with legal immigration status or not, can land jobs. Few avenues for low-skilled citi- zens to immigrate lawfully to the United States exist under US immigra- tion laws, thereby creating incentives for undocumented migration. In addition, political and other freedoms in the United States attract migrants. Importantly, economic opportunities exist for Mexican immigrants in this country whether or not they are documented. The employment of undocumented immigrants in the United States has some labor market impacts. Unfortunately, the segregation of the labor markets along immi- gration status lines today in important ways resembles the systematic seg- regation of whites and African Americans in the days of Jim Crow. A separate and unequal labor market exists for undocumented immigrants, who are predominantly people of color.
  • 37.
    16 Introduction US immigrationlaws have historically operated—and continue to oper- ate—to prevent many poor and working people of color from migrating lawfully to the United States. Although Congress in 1965 eliminated bla- tant racial exclusions from immigration laws, many provisions of current US immigration laws that limit entry into the United States continue to have racially disparate impacts. Everything else being equal, people from the developing world—predominantly “people of color” as that category is popularly understood in the United States—find it much more difficult under US immigration laws to migrate to this country than similarly situ- ated noncitizens from the developed (and predominantly white) world. Consequently, for many prospective immigrants lacking realistic legal avenues, economic incentives exist to migrate or stay unlawfully in the United States. Given those incentives, it should be no surprise that we today have an estimated 12 million undocumented immigrants living in the United States, with close to 60 percent from Mexico. Many of them toil in a separate, largely racially segregated, labor market. Ultimately, we see a labor control system, with immigration law integral to its creation and maintenance, akin to some of the devices that existed in the Jim Crow South in the wake of the abolition of slavery. What causes the flow of undocumented immigrants from Mexico and other developing nations to the United States? Under US immigration laws, as discussed in chapters 5 and 6, unskilled workers without rela- tives in this country have few legal avenues to lawfully immigrate here. Employment visas are generally reserved for highly skilled workers. Low- and medium-skilled workers lack practical lawful immigration opportu- nities. Despite the claims of restrictionists that “illegal aliens” should wait in line like everyone else, there is simply no line for many of them to wait in to lawfully immigrate to the United States. As a result, many of these prospective workers have the incentive to enter or remain in the country in violation of US immigration laws. The exploitation of working-class undocumented immigrants in the United States continues virtually unabated. Unfortunately, undocumented workers often enjoy precious few protections under the law. The state of California, for example, has only a handful of personnel to enforce the state labor code in the vast Central Valley, the home of a thriving population of undocumented workers. In a case involving an undocumented worker from Mexico, the US Supreme Court greatly limited the relief available
  • 38.
    Immigration and ImmigrationPolicy:A Mexican Immigrant Perspective 17 (and denied backpay) to an undocumented worker whose right to organize under federal labor law had been flagrantly violated by the employer.26 Undocumented immigrants who successfully make it to this country participate in a labor force with a racial caste quality, due largely to the operation of US immigration laws. Indeed, in the United States today, nothing less than dual labor markets exist. Undocumented workers— predominantly people of color—participate in one market, often without the protection of the minimum wage and other labor laws. Mexican and other Latina/o undocumented immigrants predominate in this secondary labor market. They are easily exploited, quickly disposed of, and generally extremely reluctant to complain about wages and conditions for fear that they will be deported. Wage, labor, and other protections are but a faraway dream for many undocumented workers in the United States. By designating a population of undocumented immigrants, US immigration laws help to create a pliable labor force that employers often easily control and exploit. In another labor market, US citizens and legal immigrants enjoy the protections of the law. In the old days, Jim Crow divided the job markets, with whites enjoy- ing access to higher-paying jobs and African Americans relegated to the lower-wage market. Some fair-complected African Americans would seek to “pass” to secure jobs in the better-paying labor market reserved for whites. Today, undocumented immigrants at times attempt to “pass” as lawful workers by using false identifications and fraudulent Social Secu- rity cards to access the legal and legitimate labor market with higher wages ordinarily reserved for US citizens and lawful immigrants. Aside from the dual labor market structure, another parallel between Jim Crow and the modern treatment of immigrants in the United States is facilitated by US immigration laws. As we discuss in chapter 10, over the last few years, several state and local governments have adopted measures that purport to regulate undocumented immigration and punish immi- grants, in effect seeking to force them out of town. The debates over the local immigration measures in many ways resemble the kinds of vicious local debates—with race and racism at their core—over housing and school integration measures in the 1950s and 1960s. Local ordinances that bar landlords from renting to undocumented immigrants, including ones adopted by the cities of Escondido, Califor- nia; Hazleton, Pennsylvania; Valley Park, Missouri; and Farmer’s Branch,
  • 39.
    18 Introduction Texas, area direct response to an increasing number of Latinas/os—not simply immigrants—moving into those cities. Some supporters of these laws seek to drive as many Latinas/os as possible out of town. This may sound familiar to those knowledgeable of housing discrimination and such things as restrictive covenants in housing deeds designed to exclude African Americans from white neighborhoods in the days of Jim Crow. In addition, states such as Arizona and Oklahoma have passed laws designed to sanction employers of undocumented immigrants and punish these immigrants. Withsimilaraims,somelocalgovernmentshaveunsuccessfullyattempted to address the efforts of day laborers, many of whom in some localities are undocumented immigrants from Mexico and Central America, to secure work. Ordinances have targeted day laborer pickup points, which can be found in cities and towns, large and small, across the United States. Home Depot stores across the country often serve as informal day laborer pickup points. These laborers are among the most vulnerable of all workers, often subject to exploitation, including nonpayment of wages and excessive hours in substandard working conditions. Consider just two examples of local governments attempting to regulate immigration and the impacts of the Latina/o community generally. In 2007, Prince William County, Virginia, responded to an increase of Latinas/os by adopting a measure that, among other things, required police officers to check the immigration status of anyone accused of breaking the law, even for a broken tail light, if the officers for some reason believed that the per- son was in the country unlawfully. This is nothing less than an invitation to racially profile, a frequently criticized practice that plagues Latinas/os (as well as African Americans) in the United States. Fearful of the impacts of the new law, Latinas/os—citizens as well as noncitizens—reportedly have moved out of Prince William County to neighboring localities and states. The upscale community of Escondido, California, less than one hun- dred miles from the US–Mexico border, is another local government that has tried to discourage undocumented immigrants from being visible in the city limits. The city passed an ordinance, which it later rescinded in the face of a formidable legal challenge, barring landlords from renting to undocumented immigrants. It also used traffic checkpoints to check driver’s licenses (in California and most other states, undocumented immi- grants are not eligible for driver’s licenses) and aggressive enforcement of housing, zoning, and other ordinances to discourage undocumented
  • 40.
    A Mexican AmericanPerspective 19 immigrants from living there. Like other cities, Escondido officials con- sidered a policy restricting drivers from picking up day laborers. A retired sheriff maintained that the city was doing nothing less than “looking for a way to reduce the number of brown people” in Escondido.27 Importantly, there is little indication that the labor provided by undocu- mented immigrants in cities with ordinances and policies like Prince Wil- liam County and Escondido will not be in demand to maintain the homes and yards and provide child care services, as well as work in restaurants, hotels, construction, and service industries. The elimination of day laborer pickup points, for example, would likely drive the employment of these workers further underground. It would not, however, be likely to dramat- ically affect the informal labor market that thrives and helps satisfy the economy’s thirst for inexpensive labor. A Mexican American Perspective Mexican Americans often have a deeply ambivalent view of immigration and immigrants from Mexico. At times, members of the established Mexi- can American community, like other groups of Americans, have expressed concern with the changes to communities brought by immigrants from Mexico. Tensions in East Los Angeles, California, and Phoenix, Arizona, for example, have grown with changes Mexican migrants have brought to the community. Complaints from Mexican Americans about immigration (like those of other Americans) run the gamut, from claims that the new- comers do not speak English to charges that too many live in one residence and fail to properly maintain the premises. At the same time, Mexican Americans have a great concern with immi- gration and immigration enforcement. Importantly, Mexican Americans— like most Americans—do not generally support open borders with Mexico. However, many persons of Mexican ancestry—US citizens included— express concern about racial profiling in immigration enforcement, which we discuss in detail in chapter 9. In addition, some Mexican American fami- lies are concerned with the impacts of immigration law and enforcement on themselves, their family members, and their friends. Many families are composed of members with different immigration statuses; in 2008, for example, 4 million US citizen children had undocumented parents. Some poor and working-class Mexican Americans also generally fear that immigrant workers will drive down wages. For all of the above
  • 41.
    20 Introduction reasons, manyMexican Americans have considerable concern with the level of immigration to the United States and, more generally, with immi- gration law and policy. At times, Mexican Americans, including well-established US citizens, understand that the debate over immigration in the United States is often about popular fears about all persons of Mexican ancestry in the United States, not just about lawful and undocumented immigrants. In 1994, for example, polls showed that Mexican American citizens initially favored Proposition 187, California’s anti-immigrant measure. However, as the campaign clearly became more anti-Mexican as well as anti-immigrant, US citizens of Mexican ancestry moved to oppose the measure. Mexican American voters ultimately opposed it by an overwhelming 2–1 margin, which was the reverse of the final overall vote. Similar patterns can be seen in other related ballot measures, as well as in debates over immigration reform in general. The formation of Mexican American identity in the United States is an incredibly complex series of processes, which touches on immigration but goes well beyond the scope of this book.28 The US Government Perspective As interpreted by the US Supreme Court, the US Constitution entrusts the federal government with regulating immigration. Federal law, specifi- cally the comprehensive federal immigration law known as the Immigra- tion and Nationality Act, generally governs the admission and removal of immigrants. The federal government has general concerns with the uniformity of immigration and naturalization rules and moderation of at times negative domestic reactions to immigrants. Immigration law and policies, as well as the treatment of immigrants generally, can in certain circumstances affect the relations of the United States with foreign nations. The national government also desires to maximize the economic ben- efits of immigration as well as its possible political implications. It receives substantial tax revenues from immigrants, including undocumented immigrants who pay taxes with the hope of sometime regularizing their legal status. (This can be accomplished through securing a Tax Identifi- cation Number; needless to say, the Internal Revenue Service accepts tax returns and taxes without questioning the immigration status of the filer.)
  • 42.
    A Mexican GovernmentPerspective 21 Undocumented immigrants who work with false Social Security numbers contribute billions of dollars each year to a system from which they in all likelihood will never collect benefits. Border control and immigration enforcement are popular with the fed- eral government in no small part because they are popular with the general public. The US government also has some interest in protecting human rights of noncitizens and has treaty obligations to not deport noncitizens fleeing torture and political and related forms of persecution to their native countries. A Mexican Government Perspective The Mexican government has many concerns with the migration of its citizens to the United States. We can expect the government to be con- cerned with the treatment and well-being of its citizens, in other words, the human rights of its citizens in the United States who are subject to various border enforcement measures. Restrictionists often claim that the Mexican government is responsible for the migration of its citizens north; however, the Mexican government has limits on what it can do to prevent its nationals from leaving the coun- try. It also feels pressure to save the lives of its citizens in their efforts to journey to the United States. Recall that the US government harshly criti- cized the old Soviet Union, and the Eastern bloc generally, for refusing to allow its citizens to emigrate to the West. The Mexican government also has economic concerns with the migra- tion of its nationals. Each year, billions of dollars in remittances from Mexican workers in the United States flow back to Mexico. Although remittances have fallen somewhat in recent years due to the economic downturn in this country, Mexico received in the neighborhood of $25 bil- lion—a huge supplement to its economy—in 2007 from its citizens work- ing in the United States. In this vein, “hometown clubs” have emerged through which migrants raise funds to send to their hometowns in Mexico and build roads, bridges, and other municipal improvements. The clubs, and remittances generally, greatly benefit the Mexican economy and reduce the fiscal (and political) pressures facing the Mexican government. The Mexican government has political interests in the migration of its citizens to the United States as well. The flow of migrants out of the coun- try serves as a sort of political safety valve, with some of the most unhappy
  • 43.
    22 Introduction people leavingthe country to pursue economic opportunity, as well as political freedoms, in the United States. The North American Free Trade Agreement, for example, has caused adjustments in the Mexican economy that have resulted in migration pressures in recent years as well as increased internal dissent among certain segments of Mexican society. Immigration to the United States has thus helped to dampen political dissent in Mexico. The Perspective of State and Local Governments As we shall see in chapter 10, tensions over immigration, as well as the changes brought by immigrants, in recent years have been high in some state and local jurisdictions. Some of the concerns grew worse with the failure of Congress to address undocumented immigration and pass immigration reform in 2007. Fears grew as demographic changes resulting from migra- tion affected areas of the United States that had not seen significant immi- gration from Mexico, such as parts of the East, Midwest, and South. Prince William County, Virginia, discussed earlier in this chapter, is one example. The state of Arizona, which passed a controversial anti-­ immigration law in 2010 that was largely struck down by a federal court, is another. A number of concerns contribute to tensions at the state and local lev- els over immigration. First, controversy has emerged over the proper role of the state and local governments vís-a-vís the federal government in regulating immigration in recent years. State and local governments have moved to fill a perceived void and to rectify the failure of the US govern- ment to act on immigration enforcement. Second, immigration imposes costs on state and local governments that are not always reimbursed by the US government, which is primar- ily in charge of regulating immigration and receives the bulk of the tax benefits. For example, state and local governments pay the bulk of the costs of elementary and secondary education, which must be provided to undocumented children, as well as emergency health care and services. In addition to receiving the bulk of tax contributions from immigrants (including roughly one-half of all undocumented immigrants), the fed- eral government also receives Social Security contributions (amounting to billions of dollars each year in contributions from undocumented work- ers who will never be eligible for Social Security benefits).29 The federal government also collects tax revenues from businesses that profit—and
  • 44.
    The Ordinary USCitizen Perspective 23 profit handsomely—from low-cost Mexican labor. The “fiscal disconnect” between federal and state and local governments exacerbates frustration with immigration and immigrants by the state and local governments, which in modern times are trying to balance tight budgets. The Ordinary US Citizen Perspective It is difficult to characterize the view of US citizens toward immigrants. On the one hand, the public has had open arms for the immigrants of the world, with the Statue of Liberty exemplifying this ideal. Many Americans sincerely believe in this heroic vision of America. On the other hand, the United States at times has suffered from anti- immigrant backlashes, both historically and in more recent years. Immi- grants have been blamed for the social problems of the day, whether it be the economy, social tensions, crime, disease, or related problems. These xenophobic outbursts are often most fiery when immigrants viewed as racially different are the predominant immigrants of the day. Workers may also hold economic fears, namely that immigrant workers will depress wages as well as compete for scarce public benefits. Such fears increase in tough economic times. Some observers have claimed that Afri- can Americans are especially injured by inexpensive foreign labor. How- ever, studies show that the negative impacts of immigration on workers are relatively small (at most 1–3 percent of a depression in real wages) and generally suffered by only the most vulnerable in the job market, those without high school diplomas. As discussed previously, popular American culture often demonizes prospective immigrants of color—as well as those who reside here—as “aliens” or, even worse, “illegal aliens.” Class as well as racial aspects of the stereotypical noncitizens contribute to the conventional wisdom that immigrants are a pressing social problem. The widespread perception is that all “illegals” are poor and unskilled, a stereotype that is not supported by the available empirical evidence. Nonetheless, “the term ‘illegal alien’ now . . . carries undeniable racial overtones and is typically associated with the stereotype of an unskilled Mexican male laborer.”30 With both racial and class components, the stereotype helps to rationalize the calls for dehumanizing treatment of “illegal aliens” and aggressive enforcement of US immigra- tion laws through, among other things, force, technology, and fences.
  • 45.
    24 Introduction ConcludingThoughts One thingis clear from US immigration history. The nation has been espe- cially prone to anti-immigrant outbursts at times of social stress and tur- moil. Untangling the myriad reasons for xenophobic outbursts is not easy. Both legitimate (economic cost) and illegitimate (racism) concerns have contributed to anti-immigrant sentiment. There are many different perspectives on immigration to, and immi- grants living in, the United States. Language and terminology are impor- tant as are care and sensitivity in considering the many issues surrounding, and perspectives about, migration from Mexico to the United States. Importantly, terminology—specifically, the references to “aliens” and “ille- gal aliens”—has direct and indirect impacts on the law, the immigration debate, and the treatment of noncitizens. Discussion Questions 1. Is calling someone an“illegal alien” really any different from calling someone a “wetback”? Is there any other term that could be used in polite company that is as pejorative,distancing,and downright insulting as“alien” (besides“ille- gal alien”)? With respect to terminology, what other term or terms might be better than “aliens” or “illegal aliens”? What about immigrant, undocumented immigrant, unauthorized worker, or human being? Is the term “anchor babies” (used by some to refer to the US-born and therefore US citizen children of undocumented immigrants) pejorative? 2. Should US immigration laws make distinctions between“aliens” and citizens in allocating the constitutional and other legal rights accorded to each group of persons? Why shouldn’t all residents in the community have equal legal rights? 3. Why do so many Americans appear to be hyperconcerned over migration to the United States from Mexico as opposed to that from other countries, such as Canada, Germany, or Russia? Are the fears racial, economic, social, or cultural (or all of the above)? Are the fears generated by the magnitude of the migration from Mexico to the United States? Or are people simply resistant to particular kinds of change? Please explain and support your reasoning. Per- spectives vary widely on the costs and benefits of migration from Mexico to
  • 46.
    Notes 25 the UnitedStates.How can we as a society promote education,understanding, and common ground on the issue of migration from Mexico, as well as on immigration and immigrants generally? Such an understanding would seem to be necessary for immigration reform. 4. Immigrants have historically been scapegoated and demonized for the prob- lems of the day in the United States.Immigrants,for example,often are blamed for “taking jobs” from US citizens in times of economic distress, being prone to criminal activity, and, as exemplified by the Michael Savage quote at the beginning of the chapter, spreading communicable diseases. Recall the flap in 2009 over the “swine” flu outbreak and previous grossly exaggerated claims by CNN’s Lou Dobbs about immigrants spreading leprosy across the coun- try. Why are persons of Mexican ancestry so often blamed for US society’s problems? 5. Should the United States consider permitting the free migration of labor between Canada, Mexico, and the United States similar to the free trade of goods, services, and capital guaranteed by the North American Free Trade Agreement? See T. Alexander Aleinikoff, “Legal Immigration Reform: Toward Rationality and Equity,” in Blueprints for an Ideal Legal Immigration Policy, Center Paper 17, Richard D. Lamm and Alan Simpson eds. (Washington, D.C.: Center for Immigration Studies, 2001). Explain your reasoning. Suggested Readings Bender, Steven W. 2003. Greasers and Gringos: Latinos, Law, and the American Imagina- tion. New York: New York University Press. Bosniak, Linda. 2006. The Citizen and the Alien: Dilemmas of Contemporary Member- ship. Princeton, N.J.: Princeton University Press. Gutierrez, David. 1995. Walls and Mirrors: Mexican Americans, Mexican Immigrants, and The Politics of Ethnicity. Berkeley: University of California Press. Ngai, Mae. 2004. Impossible Subjects: Illegal Aliens and the Making of Modern America. Princeton, N.J.: Princeton University Press. Notes Epigraphs: Alexander M. Bickel, The Morality of Consent (New Haven, Conn.: Yale University Press, 1975), 53; Michael Savage, The Savage Nation, a talk radio show, April 2009. 1. Parts of the discussion of alien terminology in this chapter have been adapted from Kevin R. Johnson, “‘Aliens’ and US immigration laws: The Social and Legal
  • 47.
    26 Introduction Construction ofNonpersons,” University of Miami Inter-American Law Review 28, no. 2 (1996–97): 263. 2. Gerald L. Neuman, “Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection,” UCLA Law Review 42 (1995): 1425, 1428, footnote omitted. 3. Gerald M. Rosberg, “The Protection of Aliens from Discriminatory Treatment by the National Government,” Supreme Court Review 1977 (1977): 275, 303. 4. Immigration and Nationality Act, § 101(a)(3), 8 USC § 1101(a)(3). 5. See Michael Omi and Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s, 2d ed. (New York: Routledge, 1994). 6. Bickel, The Morality of Consent, emphasis added. 7. The Court further stated that African Americans “had no rights which the white man was bound to respect.” Scott v. Sandford, 60 US 393, 407 (1857). 8. Hurtado v. United States, 410 US 578, 604 (1973), Douglas, J., dissenting; emphasis added. 9. Cara Buckley, “Teenagers’ Violent ‘Sport’ Led to Killing, Officials Say,” N.Y. Times, Nov. 20, 2008, A26. 10. Neuman, “Aliens as Outlaws,” note 2, at 1440–41. 11. United States v. Valenzuela-Bernal, 458 US 858, 864n5 (1982). 12. United States v. Cortez, 449 US 411, 418 (1981). 13. United States v. Martinez-Fuerte, 428 US 543, 552 (1976). 14. Plyler v. Doe, 457 US 202, 237 (1982), Powell, J., concurring. 15. United States v. Ortiz, 422 US 891, 899 (1975), Burger, C. J., concurring in judg- ment; emphasis added; footnote omitted. 16. INS v. Delgado, 466 US 210, 239 (1984), Brennan, J., dissenting in part; emphasis added. 17. United States v. Brignoni-Ponce, 422 US 873, 878–79 (1975). 18. United States v. Ortiz, 422 US 891, 900 (1985) (Burger, C.J., concurring in judg- ment), excerpting United States v. Baca, 368 F. Supp. 398, 402–08 (S.D. Cal. 1973). 19. Immigration Reform and Control Act of 1983: Hearings on H.R. 1510 Before the Subcomm. on Immigration, Refugees, and International Law of the House Comm. of the Judiciary, 98th Cong., 1st sess. (1983), testimony of Attorney General William French Smith, 1. 20. See US Department of Homeland Security, US Legal Permanent Residents: 2007 (March 2008), available at www.dhs.gov/xlibrary/assets/statistics/publications/LPR_ FR_2007.pdf 21. See Jeffrey S. Passel, The Size and Characteristics of the Unauthorized Migrant Pop- ulation in the US 5 (Pew Hispanic Center, Mar. 7, 2006). The number decreased to an estimated 11.1 million in March 2009. See Jeffrey Passel and D’Vera Cohn, US Unau- thorized Immigration Flows are Down Sharply Since Mid-Decade (Pew Hispanic Center, Sept. 1, 2010), available at http://pewhispanic.org/reports/report.php?ReportID=126.
  • 48.
    Notes 27 22. SeeJeffrey S. Passel and D’Vera Cohn, A Portrait of Unauthorized Immigrants in theUnitedStates21(PewHispanicCenter,Apr.14,2009),availableathttp://pewhispanic .org/files/reports/107.pdf. 23. See Migration Policy Institute, Size of the Foreign-Born Population and Foreign Born as a Percentage of the Total Population, for the United States: 1850 to 2006 (2007), available at www.migrationinformation.org/datahub/charts/final.fb.shtml. 24. Pew Hispanic Center, Fact Sheet: Mexican Immigrants in the United States, 2008 (Apr. 15, 2009), at 1–2, available at http://pewhispanic.org/files/factsheets/47.pdf. 25. Kevin R. Johnson, “A Handicapped, Not ‘Sleeping,’ Giant: The Devastating Impact of the Initiative Process on Latina/o and Immigrant Communities,” California Law Review 96 (2008): 1259, 1266, footnotes omitted. 26. Hoffman Plastic Compounds, Inc. v. NLRB 535 US 137 (2002). 27. Anna Gorman, “Undocumented? Unwelcome,” L.A. Times, July 13, 2008, B1, quoting Bill Flores, retired sheriff. 28. See generally Kevin R. Johnson, How Did You Get to Be Mexican?: A White/ Brown Man’s Search for Identity (Philadelphia: Temple University Press, 1999). 29. See Kevin R. Johnson, Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws (New York: New York University Press, 2007), 151–52. 30. Jayashri Srikantiah, “Perfect Victims and Real Survivors: The Iconic Victim in Domestic Human Trafficking Law,” Boston University Law Review 87 (2007): 157, 188–89, emphasis added.
  • 49.
    2 A Brief Historyof Mexico–US Migration Patterns What’s past is prologue. —Shakespeare, The Tempest W hen Mexico won her independence from Spain in 1821, her northern border included all or part of what are now the states of California, Nevada, Utah, Arizona, New Mexico, Colo- rado, Wyoming, Oklahoma, Kansas, and Texas. From 1836 until 1853, the United States accomplished a land grab of epic proportions. By 1853, nearly two-thirds of Mexican territory had been acquired by the United States. This chapter briefly summarizes the history of migration between Mex- ico and the United States. That history properly begins with the tale of how the United States achieved its current geographic character at the expense of its neighbor to the south. Figure 2.1 depicts the northern territories of Mexico in 1821, when she became an independent state. This chapter first examines how the United States acquired, by hook or by crook, most of Mexico’s land. We will see how the Mexican territory of Tejas, now known as Texas, was occupied and finally taken by settlers from the United States. We then consider the project of US expansionism that sought to acquire, at first by negotiation and ultimately by conquest, the lands from California to Colorado. Finally, we examine the migration patterns from Mexico to the United States during the twentieth century, and conclude by summarizing demographic patterns depicting Mexicans residing in the north at the beginning of the twenty-first century. Tejas We are all familiar with newspaper headlines sounding the sensational alarm: “ILLEGAL ALIENS INVADE TEXAS!!!” In this case, however,
  • 50.
    Tejas 29 the headlinewould have been in Spanish, Texas would have been spelled “Tejas,” the year would have been 1830, and the undocumented foreign nationals would have been Anglos moving south into Texas territory belonging to the nation of Mexico. Mexico initially adopted a lax policy of border control. Only three years after emerging as an independent nation, Mexico had passed the Immigra- tion Act of 1824, permitting foreign migration into its northern territories. What followed was a concerted and sustained flow of American settlers into Mexican lands. Mexico then became alarmed by the aggressive and hostile nature of the settlers and in 1830 passed a decree curtailing immi- gration into the Tejas territory. Despite the new law, the flow of Anglo settlers, now consisting largely of unlawful entrants (who today might be called undocumented immigrants), continued unabated. In 1835, the settlers in Tejas declared independence from Mexico. After several battles, including the infamous Battle of the Alamo and the decisive battle at San Jacinto, Texas won independence from Mexico and 2. 2.1. The vice royalty of New Spain, 1786–1821. Source: Reprinted with permission from The Atlas of Mexico (Austin: Bureau of Business Research, 1975), p. 26. Copyright by the Uni- versity of Texas Board of Regents.
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    30 A BriefHistory of Mexico–US Migration Patterns established the Lone Star Republic. Figure 2.2 displays the land Mexico lost during the Texas episode. After the declaration of Texas’s independence, a dispute continued over the location of its southern border. Mexico claimed that Texas territory was bordered by the Nueces River (north of present-day Corpus Christi), while Texas claimed its territory was bounded by the Rio Grande (known as the Rio Bravo in Mexico), about 150 miles farther south. This disputed terri- tory would become very important to the start of the US–Mexican War in 1846 and would be resolved only by the war itself. 2.2. Map of the Republic of Texas, 1836–1846, including land Mexico lost to Anglo set- tlers (Texas),disputed territory,and lands still held by Mexico.Source: Illustration by authors, based on maps found at en.wikipedia.org/wiki/Texas Annexation, en.wikipedia.org/wiki/ Gadsden_Purchase, and en.wikipedia.org/wiki/United_States_territorial_acquisitions.
  • 52.
    The Treaty Territories31 TheTreatyTerritories After the loss of Tejas, Mexico wished to avoid further erosion of its ter- ritories. A New York newspaper plainly stated: “Let the tide of emigra- tion flow toward California and the American population will soon be sufficiently numerous to play the Texas game.”1 Eager to preserve the remainder of its northern territories, Mexico from 1836 to 1846 undertook a program of deliberately populating the areas that now comprise Califor- nia and New Mexico. To that end, the Mexican government made large empresario land grants, encouraging Mexicans to move to the northern ter- ritories. Consequently, many Mexicans, referred to as Norteños, relocated to the territories of California and Nuevo Mexico. In 1844, James K. Polk was elected president of the United States on a platform of “Manifest Destiny,” promising the westward expansion of the United States. Within a year, Texas was admitted as a state to the Union. In 1845, President Polk sent a mission, headed by John Slidell, to Mexico to bargain for the purchase of California and New Mexico, and to settle the disputed Texas boundary. The Mexican government rebuffed the Slidell mission, refusing to discuss the sale of its territory. President Polk ordered American troops into the disputed Texas ter- ritory between the Nueces River and the Rio Grande. On April 25, 1846, there was a skirmish between the American and Mexican soldiers. Presi- dent Polk famously declared, “American blood had been spilt on Ameri- can soil.” The US Congress quickly declared war on Mexico. The war against Mexico was unpopular in many quarters of the United States. Many saw it as an unjust provocation, designed simply to acquire land by force from a weaker nation. Others were concerned that the newly acquired land would result in the establishment of new slave states, thus altering the delicate political balance on the United States’ most controver- sial issue of the day: slavery. No less a figure than Abraham Lincoln weighed in against the justness of the US war of aggression on Mexico. In 1847, Lincoln began his first (and, perhaps because of his courageous rejection of the war, his only) term representing Illinois in the US House of Representatives. The freshman member of Congress wrote what was known as the Spot Resolutions, in which he demanded that President Polk produce evidence of the exact spot on which American blood was shed. The House never considered, much less debated, the resolution.
  • 53.
    32 A BriefHistory of Mexico–US Migration Patterns Lasting from 1846 to 1848, the US–Mexican War resulted in a humiliat- ing defeat for Mexico. To end the hostilities, Mexico and the United States negotiated the Treaty of Guadalupe Hidalgo, which, besides ending the war, ceded a tremendous amount of Mexican territory to the United States. Figure 2.3 shows the area of present-day United States that changed hands as a result of the treaty. The war also settled the disputed Texas border (see figure 2.2) in favor of the United States. In 1853, the last bit of land changed hands, as the US government initi- ated the Gadsden Purchase (see figure 2.3 for area of Gadsden Purchase in 2.3. Land Mexico ceded to the United States through the Treaty of Guadalupe Hidalgo (1848),and some of the lands ceded through the Gadsden Purchase (1853).Source: Illustration by authors,based on maps found at en.wikipedia.org/wiki/TexasAnnexation,en.wikipedia.org/ wiki/Gadsden_Purchase, and en.wikipedia.org/wiki/United_States_territorial_acquisitions.
  • 54.
    The Treaty Territories33 New Mexico and Arizona) for the purposes of constructing a transconti- nental railroad through the southern United States. In summary, the US government conducted its land grab from Mexico in four parts: 1.  1836 Texas insurrection, with the land entering the United States in 1845; 2. the disputed southern border of the Texas territories, with the US– Mexican War finally settling these claims in favor of the United States in 1848; 3.  the lands ceded by Mexico to the United States in 1848 by the Treaty of Guadalupe Hidalgo; and 4.  the Gadsden Purchase of 1853. From 1836 to 1853, the United States thus acquired nearly two-thirds of Mexico’s entire territory. With the land came people, including the Norteños who had come north only a few years before the outbreak of war. The treaty included a provision in which Mexicans living on ceded territory could either become citizens of the United States or move south of the newly resettled border. Treaty of Guadalupe Hidalgo (1848),Article IX How Mexicans Remaining in CededTerritories May Become Citizens of the United States Mexicans who,in the territories aforesaid,shall not preserve the charac- ter of citizens of the Mexican republic, conformably with what is stipu- lated in the preceding article, shall be incorporated into the Union of the United States, and be admitted at the proper time (to be judged of by the congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the con- stitution; and in the mean time, shall be maintained and protected in the free enjoyment of their liberty, and property, and secured in the free exercise of their religion without restriction. ■
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    “What doesn’t? Whetherthere is a strike or not?” “I’m not going to strike. They can do as they’ve a mind.” “But if the Union orders us out we’ll have to go.” “Not me.” “Supposing the strike succeeds, as it may—the Union’s very strong,—what will you do then?” “Stick to my work, and mind my own business.” “But the Union won’t let you. If the strike fails you’ll merely get the ill will of all the men; if it succeeds they’ll force you out of the works. There’s no use running your head against a brick wall, Mr. Braunt.” “You speak; you’ve got the gift o’ the gab,” said Braunt. “I’m too young. They won’t listen to me now. But a day will come when they will—aye, and the masters, too. I’d willingly devote my life to the cause of the workingman.” Marsten spoke with the fire of youthful enthusiasm, and was somewhat disconcerted when the other took his pipe from his mouth and laughed. “Why do you laugh?” “I’m laughing at you. I’m glad to know there’s some one that believes in us, but as thou says, thou ’art yoong; thou’ll know better- later on.” “Don’t you believe in yourself and your fellow-workers?” “Not me. I know ’em too well. By the sweat of thy brow shalt thou earn thy bread. Them’s not the right words, happen; but that’s the meaning. It has been, is now, and ever shall be. Amen.”
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    “I don’t objectto that, Mr. Braunt,” cried the young man, rising and pacing the floor in his excitement. “Don’t think it. But I want to see everybody work. What I object to is earning your bread by the sweat of the hired man’s brow, as someone has said. Bless me! look at our numbers. We outnumber the loafers ten to one; yes, a hundred to one in every country in the world. All we need is an unselfish leader.” The elder man looked at him with a quizzical smile on his stern lips. “Look at the number of the sands on the seaside. Will any leader make a rope out of them? Numbers are nothing, my lad. Take care of yourself, Marsten, and never mind the workers; that’s the rule of the world. You may pull yourself up, but you can’t lift them with you. They’ve broken the hearts—aye, and the heads too, of many a one that tried to better them. You think you have only the masters and capital to fight. The masters won’t hurt you; it’s the men you’re fighting for that will down you. Wait till your head is an inch above the crowd, then you’ll catch it from the sticks of every rotten one of them that thinks he’s got as much right as you have to be in command. It isn’t money that helps the masters, it’s because they’ve the sense to know a good man when they see him, and to stand by him when they’ve got him. Don’t be deluded by numbers. What’s the good of them? One determined man who doesn’t need to bother about his backing—who knows his principals will back him through thick and thin—will beat any mob. Why can a small company of soldiers put down a riot? It’s because they’re commanded by one man. When he says ‘jump,’ they jump; when he says ‘shoot,’ they shoot. That’s the whole secret of it.” Braunt resumed his pipe, and smoked vigorously to get back to his usual state of taciturnity. Marsten had never heard him talk so long before, and he stood pondering what had been said. Braunt was the first to speak. “Play the Dead March, Jessie,” he said, gruffly.
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    The girl hesitateda moment, evidently loath to begin when Marsten was in the room, a slight hectic colour mounting to her cheek: but obedience was strong in her; her father was not a man to be disobeyed. She drew up her chair, and began Chopin’s Funeral March, playing it very badly, but still recognizably. Peace seemed to come over Braunt as he listened to the dirge. He sat back in the chair, his eyes on the ceiling, smoking steadily. Marsten sat down, meditating on what Braunt had said. He was not old enough to have his opinions fixed, and to be impervious to argument, so Braunt’s remarks troubled him. He hoped they were not true, but feared they might be. The mournful cadence of the music, which seemed to soothe the soul of the elder man, wound itself among the younger’s thoughts, and dragged them towards despair; the indifference of the men in front of the public-house flashed across his memory and depressed him. He wished Jessie would stop playing. “Ah,” said Braunt, with a deep sigh when she did stop. “That’s the grandest piece of music ever made. It runs in my head all day. The throb of the machinery at the works seems to be tuned to it. It’s in the roar of the streets. Come, my lad, I’ll go with you, because you want me to, not that it will do any good. I’ll speak if you like, not that they’ll care much for what I say—not hearken, very like. But come along, my lad.”
  • 60.
    B CHAPTER VIII. raunt andMarsten passed from the dimness of Rose Garden Court into the brilliancy of Light Street, which on certain nights in the week was like one prolonged fair, each side being lined with heaped-up coster’s barrows, radiant with flaring gasoline. Incense was being burned—evil-smelling incense—to the God of Cheapness. Hordes of women, down at the heel, were bargaining with equally impecunious venders—meeting and chaffering on the common level of poverty. Turning into a side street and then into a narrower lane, the two men came to a huge building where the Salvation Army held its services—a building let temporarily to the employees of Monkton Hope for the discussion of their grievances. The place was crowded to the doors, and the latest comers had some difficulty in making their way along one side of the walls, nearer the front platform, where they at last found room half way between the doors and the speakers. Scimmins was in the chair, looking very uneasy and out of place, not knowing exactly what was expected of him, smiling a wan deprecatory smile occasionally as some of his pals in the crowd made audible remarks about his elevation, and the native dignity he brought to bear on his office. One gave it as his opinion (“if you awsked him”) that Scimmins would have looked more natural with a pint pot in his right hand, instead of the mallet with which he was supposed to keep order. On a row of chairs at the back of the platform sat the members of the committee, looking, most of them, quite as uncomfortable as the chairman. Several reporters were writing at a table provided for them. Sometimes one whispered a question to the chairman or a
  • 61.
    member of thecommittee, and received the almost invariable answer, “Blest if I know, arsk Gibbons.” Gibbons was quite palpably the man of the hour. He was on his feet by virtue of his position as chairman of the committee and secretary to the Union, and was just finishing the reading of the committee’s report as Braunt and Marsten found standing-room at the side of the hall. “—And finally your committee begs leave to report that Mr. Sartwell, having rejected all overtures from your committee, refusing to confer with it either through its chairman, or as a body, it was resolved that this report be drawn up and presented to you in order that definite action may be taken upon it.” Gibbons, when he had finished reading the document, placed it upon the reporters’ table for their closer inspection. He had drawn up the report himself and was naturally rather proud of the wording, and he hoped to see it printed in the newspapers. He turned to his audience, after saluting the chairman. “Now, gentlemen, you have heard the report. The committee appointed by you, empowered by you, acting for you, vested in your authority, has done all in its power to bring this matter to an amicable conclusion; It has left no stone unturned, shrunk from no honourable means, spared no trouble, to bring about an understanding fair alike to employer and employee. But, gentlemen, your committee has been met at the very threshold with a difficulty which it could not surmount; a difficulty that has rendered all its efforts abortive. The firm of Monkton Hope refers the committee to Mr. Sartwell, the manager, and Mr. Sartwell absolutely refuses to see the committee and discuss anything with it. This man, who was once a workman himself, now arrogates——” Here one of the reporters pulled Gibbons’s coat-tail, and a whispered colloquy took place. When it was over, Gibbons continued: “A gentleman of the press has asked me a question—and
  • 62.
    a very properquestion it is. He asks if we threatened Mr. Sartwell in any way with a strike, as has been rumoured. Gentlemen, no threats of any kind whatever have been used.” (Cheers.) “We have approached Mr. Sartwell with the same deference that we would have approached a member of Her Majesty’s Government if we had a petition to present. The sum and substance of the whole business is that Mr. Sartwell absolutely refuses to treat with his own men when they have——” “That is not true,” said a voice, from the side of the hall. The crowd turned their heads towards the sound, noticeably gleeful at the interruption. It promised liveliness ahead. There was a murmur of pleasurable anticipation. Gibbons turned sharply towards the point from which the voice came. “What is not true?” he demanded. “It’s not true that Mr. Sartwell refuses to see his own men.” “Are you one of them?” “Yes. Are you?” There was a rustle of intense enjoyment at this palpable hit at Gibbons. The glib speaker himself was taken aback by the retort, but only for a moment. “I thought,” continued the secretary, “that it might have been some one sent here to interrupt this meeting. This may still be the case, but we will waive that point. We will not follow Mr. Sartwell’s example, and if there is any friend of his present we shall be pleased to hear from him at the proper time. As I was about to say when I was int——” “I answered your question; answer mine,” cried the voice. Gibbons glanced appealingly at the Chair for protection, and Scimmins rapped feebly with his gavel on the table in front of him,
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    saying, “Order, order,”but in a tone that he apparently hoped nobody would hear. “What is your question?” asked Gibbons, with an angry ring in his voice. “Are you an employee of Monkton Hope?” “I am secretary of the Union of which that firm’s men are a part, and I may add, the strongest Union in London. I am chairman of this committee, composed of that firm’s men. I did not seek the position, but was unanimously elected to it; therefore I claim that practically I am an employee of Monkton Hope, and that no man here has a better right to speak for those employees—aye, or to stand up for them against oppression—than I have. And I will tell the man who interrupts me—I’ll tell him to his face—that I am not to be brow- beaten from the path of duty, by him, or by Mr. Sartwell either, as long as I retain the confidence of the men who put me here. I acknowledge no other masters. If you want to address this meeting, come up here on the platform and face it like a man, and not stand barking there like a dog. Let’s have a look at you.” There was wild cheering at this. The fight was on, and the crowd was jubilant. This was the kind of talk they liked to hear. Braunt smote young Marsten on the back and pushed him forward. “Take oop the challenge, lad,” he cried. “Oop wi’ ye. I’ll follow ye, and give them some facts about the unemployed. We’ve got this meeting if we work it right. Oop wi’ ye, mate.” Marsten went toward the platform, the crowd making way for him. Gibbons stood for a moment apparently surprised at this unexpected opposition, then walked back to his chair at the head of the committee. The good-natured gathering cheered when they saw the young man standing before them. “Fellow-workingmen—” he began.
  • 64.
    “Address the Chair,”admonished some one in the middle of the hall, whereat there was a laugh. Scimmins himself indulged in a sickly smile. The speaker reddened slightly, and in confused haste said: “Mr. Chairman and fellow-workers——-” The crowd cheered lustily, and it was some moments before Marsten could again get a hearing. A feeling of despair came over him as he stood before them. It was only too evident that they all looked upon the whole proceeding as a great lark, something in the way of a music-hall entertainment without the beer,—which was a drawback of course; but also without any charge for admission,— which was an advantage, for it left so much more cash to expend in stimulants after the fun was over. He wondered, as he looked at the chaffing jocular assemblage, whether he was taking too serious a view of the situation. There flashed across his mind a sentence he had heard in a lecture on socialism. “It is not the capitalist nor the government you have to conquer,” the lecturer had said, “but the workmen themselves.” When the disorder had subsided so that his voice could be heard, Marsten went on: “Mr. Gibbons asserted that the manager had refused to consult with his employees, and I claimed that such a statement was not true. Mr. Sartwell told me himself that he was willing to receive a deputation from the men of the works. He said——” “What’s that?” cried Gibbons, springing to his feet and taking a step forward. “Don’t interrupt the speaker,” shouted Braunt, from the body of the hall. “He interrupted me,” roared Gibbons, now thoroughly angry. Turning to the young man who stood there silently, waiting for statement and retort to cease, the secretary demanded:
  • 65.
    “When did Sartwelltell you that?” “On Tuesday night.” “On Tuesday night!” repeated Gibbons, coming to the front of the platform. “On Tuesday night! and you have the brazen cheek to stand here and admit it.” “Why shouldn’t I?” asked Marsten, with perceptible self-control, but whitening around his tightened lips. “Why shouldn’t you? I’ll tell you why. Because you sneaked in behind the backs of the committee you had helped to appoint. That’s why.” “I had no hand in appointing the committee.” “Every man in the works had a hand in appointing the committee. If you didn’t vote, then you neglected your duty. If you voted against the committee, you were bound by the result just as the committee would have been bound, if they had been defeated. That’s trade unionism—stand together or fall together. You, knowing a committee had been appointed to deal with this very business, must go crawling to Sartwell, and undermine the work of your fellow- unionists.” “That’s a lie!” hissed Marsten, through his set teeth, in a low but intense tone of voice which was heard to the further end of the hall. The young man strode toward his antagonist, his right hand nervously clinching and unclinching. It was an electric moment,—the crowd held its breath. They expected the next move would be a blow. Gibbons stood his ground without flinching. Not a muscle of his face moved except his eyelids, which partially closed over his eyes, leaving a slit through which a steely glance shot at Marsten; but his answer was not so truculent as his look.
  • 66.
    “If it’s alie,” he said calmly, to the evident disappointment of his hearers, “then the lie is not mine. I was merely putting your own statements in a little terser language; that’s all.” Braunt, who had with difficulty kept his hot temper in hand during this colloquy on the stage, now roared at the top of his voice: “Give t’ lad a chance to speak and shut your silly mouth. He’s called you a liar like a man and you daren’t take him oop like a man. Sit down, you fool!” “I must really ask the protection of the Chair,” protested the secretary, turning to Scimmins. The latter, feeling that something was expected of him, rose rather uncertainly to his feet, and struck the table three or four times with his mallet. “Order, order!” he cried. “If there is any more disturbance down there, the man will be put out of the meeting. “What!” shouted Braunt. “Put me out! Egod! I’ll give ’ee th’ chance.” The big man made his way toward the platform, brushing aside from his path a few who, in the interests of law and order, endeavoured to oppose him. The majority of those present, however, were manifestly of opinion that the progress of the angry man should not be barred, so they cheered his intervention and made encouraging remarks. Braunt sprang upon the platform, advanced to the chair, smote his clinched fist on the table, and cried: “Here I am, Scimmins. Now put me out; d’ye hear?” He paused for a reply, but there was none. Scimmins, shrinking from him, obviously prepared for flight if Braunt attempted to storm the position. The Yorkshireman glared about him, but those on the platform appeared to think that the time for protest had not yet arrived. Meanwhile, the audience was calling loudly for a speech.
  • 67.
    “I haven’t muchto say, mates,” began Braunt, calming down through lack of opposition, “and I’m no man at the gab. I’m a worker, and all I want is a chance to earn my bread. But I’ll say this: I saw in t’ papers not so long ago that there’s twenty-seven thousand men of our trade out of work in England today. Twenty- seven thousand men anxious for a job. Now what is this man Gibbons asking you to do? He’s asking you to chook up your jobs and have your places taken by some of them twenty-seven thousand. Sartwell has only to put an advertisement in the papers, and he can fill the shops five times over in two days. It’s always easier to chook oop a job than to get a new one these times. I know, because I’ve tried it. So have most of you. Take my advice, and go no further with this nonsense. If Sartwell, as Mar-sten says, is willing to talk over grievances, then I say let us send him a deputation of our own men, with no outsiders among ’em. What’s the Union done for us? Taken our money every week, that’s all I can see. And now they have got so much of it they want to squander it fighting a strong man like Sartwell.” Marsten had sat down on the edge of the platform. We are always quicker to perceive the mistakes of others than to recognize our own, and he did not like Braunt’s talk against the Union. He felt that it would be unpopular, besides he believed in the Union if it were properly led. His fight was against Gibbons, not against the organization. Gibbons was in his chair, and he had rapidly taken the measure of the speaker. He saw that the address was having its effect, and that the crowd was slipping away from his control. It was a risky thing to do with such a powerful man, but he made up his mind that Braunt must be angered, when he would likely, in his violence, lose all the ground he had gained. So Gibbons quietly, with his eye, gathered up his trusty henchmen, who were scattered in different parts of the hall to give an appearance of unanimity to the shouting when the proper time came, and these men had now gradually edged to the front during the speaking. One or two had silently mounted the
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    platform and helda whispered conference with the secretary, after which they and some others took their places behind the seated committee. When Sartwell was alluded to, Gibbons arose. “Mr. Chairman,” he said, “I cannot allow——” Braunt turned on him like a raging lion. “Don’t you interrupt me,” he cried, rolling up his sleeves, “or I’ll bash you through that window.” “Order, order!” said the chairman, faintly. “Yes, an’ you atop o’ him!” shouted the infuriated man. “I’ve done it before.” “Respect the meeting, if you have no regard for the Chair,” said Gibbons, calmly. “You talk to us as if we were a parcel of fools,” cried a man in front. Braunt, like a baited bull, not knowing in which direction to rush, turned his eyes, blazing with rage, upon the last speaker. He shook his clenched fist and bared arm at the audience. “What else are you?” he roared, at the top of his voice. “A parcel o’ dommed fools, all o’ ye. Led by the nose by a still bigger fool than any o’ ye. Yes; a set o’ chattering idiots, that’s what ye are, with not enough brains among the lot o’ ye to turn a grindstone. I know ye, a beer-sodden gang, with just enough sense to see that your pint mug’s full.” By this time those in the hall were in a state of exasperation bordering on frenzy. A small door, to the right of the stage, connecting with an alley, had been opened, and a number of the more timid, seeing a storm impending, had quietly slipped out. The meeting was now a seething mob, crying for the blood of the man who stood there defying them and heaping contumely upon it.
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    Gibbons, his lipspale but firm, took a step forward. “We have had enough of this,” he said. “Get off the platform!” Braunt turned as if on a pivot, and rushed at the secretary. The latter stepped nimbly back, and one of his supporters, with a running jump and hop, planted his boot squarely in Braunt’s stomach. The impetus was so great, and the assault so sudden and unexpected, that Braunt, powerful as he was, doubled up like a two- foot rule, and fell backward from the platform to the floor. Instantly a dozen men pounced upon him, and hustled him, in spite of his striking out right and left, through the open door into the alley. The door was closed and bolted in the twinkling of an eye—Braunt outside and his assailants within. It was all so neatly and so quickly done, that the police, who had been on the alert for some time, only reached the spot when the door was bolted. The crowd, with but the vaguest general notion of what had happened, beyond the sudden backward collapse of Braunt, raised a wild cheer for which Gibbons was thankful. He did not wish them to know that Braunt had been taken in hand by the police outside, and he had been very anxious, if an arrest were inevitable, that it should not take place in the hall, for then even Braunt’s violent tirade would not have prevented universal sympathy turning towards him. While the cheer was ringing up to the roof, Gibbons had heard a terrific blow delivered against the door, a blow that nearly burst in the bolt and made the faces of those standing near turn pale. Another crashing hit shattered the panel and gave a glimpse for one moment of bleeding knuckles. Then there was an indication of a short sharp struggle in the alley, and all was quiet save the reverberating echo of the cheer. Gibbons strode to the front of the platform, and held up his hand for silence. “I am very sorry,” he said, “that the last speaker made some remarks which ought not to have been made, but let us all remember that hard words break no bones. However, there has been enough talk for one night, and it is time to proceed to
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    business. Gentlemen, youhave heard the report of the committee— what is your pleasure?” “I move,” said a man, rising in the middle of the hall, “that we go on strike.” “I second that motion,” cried several voices. “Put the motion,” whispered Gibbons to the bewildered chairman. Scimmins rose to his feet. “You have all heard the motion,” he said. “All in favour say aye.” A seemingly universal shout of “Aye” arose. The chairman was on the point of resuming his seat when Gibbons, in a quick aside, said: “Contrary.” “All to the contrary,” called out the chairman, hovering between sitting and standing. There was no dissent, for Marsten had left to see what had become of his friend, and the timorous men had stolen away when they detected signs of disturbance. “Motion’s carried,” said Scimmins, seating himself with every indication of relief. “Unanimously,” added Gibbons loudly, unable to conceal his satisfaction with the result.
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    T CHAPTER IX. here arestreets in Chelsea practically abandoned to studios. Long low buildings of one story, with many doors in front, and great broadsides of windows at the back, multipaned windows letting in from the north the light that artists love, lined these thoroughfares which Barney in his jocular off-hand manner called “aurora borealis” streets, because, as he always explained, they were so full of “northern lights.” Such studios were all very well for the ordinary everyday artist who exhibited at the Royal Academy and places of that sort; but a painter with a soul (and, incidentally, a reliable bank account) desired something better than one of these barns, so Barney had taken a house and fitted it up to meet his requirements. Craigenputtoch House, as Barney called it in tardy recognition of the genius of Thomas Carlyle, was a building of three stories, standing back from the street in grounds of its own. The rooms on the upper floor were allowed to remain as they were, and gave Barney bedrooms for himself and his friends; his hospitality being unique and unlimited. All the partitions on the first floor had been torn away, so that this portion of the house was formed into one vast apartment, with the exception of a space for a noble landing, up to which, in dignified manner befitting a temple of art, arose a broad flight of stone steps that replaced the ordinary wooden stairway which had contented the former occupants of the house. To afford the support necessary for the upper floor, now that the partitions were taken away, huge square beams of timber had been put in, and these gave the ceiling of the roomy studio that barn roof appearance so necessary to the production of works of the higher art. Barney’s mother objected to the bare coldness of the uncovered stone stairs. Being inside the house, she said, and not the steps that led to the front door, they should have a carpet on them. Barney
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    admitted that underordinary circumstances this was so, and willingly offered to make a certain concession should the occasion arise. If Royalty visited him, he would put down the customary red carpet which the feet of Royalty were in the habit of treading. In fact, he admitted to his mother that a roll of red carpet had already been purchased, and was at that moment in the closet under the stairs, to be ready at a moment’s notice. But for every-day wear the steps should remain uncovered, because the stone stairways of the Pitti Palace were always bare, and as Barney intended ultimately to make Craigenputtoch House quite as celebrated in the world of art as the Florentine gallery, he would follow its precedent so far as stairs were concerned. There is nothing like beginning right. On the ground floor were dining-room and kitchen, below that a well-filled cellar. The hall was toned a rich Pompeiian red, and was lit by two windows of brilliant stained glass which had been put in when the building was transformed from a residence into a studio. “Oh, yes,” Barney would say, when he was complimented on these windows. “They are all very well in their way, but not original, don’t you know, not original. No, they are simply nicely executed copies of a portion of a window in Cologne Cathedral done in 1508. I placed them there temporarily, because I have been so busy that I have not had time to design anything better myself, which I shall do later on, don’t you know.” But of all the ornamental appendages to this studio, perhaps the most striking was Barney’s “man,” attired in a livery of blue, crimson, and silver, which was exceedingly effective. Although Barney had not had time to design a stained-glass window which would excel those of Cologne, he had been compelled to sketch out this livery, for it was not a thing that one could copy from abroad, and the Hope family had not been established long enough to have a recognized livery of its own. Nothing gives character and dignity to a place so much as a “man” sumptuously fitted out in a style that is palpably regardless of cost, and if it may be plainly seen that the “man” performs no needful function whatever, then is the effect
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    heightened, for fewhuman beings attain the apex of utter inutility. The great hotels of this country recognize the distinction reflected upon them by the possession of a creature of splendour at their doors, who grandly wafts the incoming guests with a hand-wave towards the hall. But these persons of embellishment often demean themselves by opening the doors of cabs and performing other useful acts, thus detracting from their proper function, which was, Barney insisted, to content themselves with being merely beautiful. When a visitor once complained that the man at the top of the stair had refused to direct him into the studio, Barney laid his right hand in friendly brotherliness on the visitor’s shoulder, and said: “He knew, dear boy, that I would discharge him instantly if he so far forgot himself as to answer a question.” “Then what is he there for?” asked the visitor, with some indignation. “I don’t see the use of him.” “Quite so, quite so,” answered Barney, soothingly. “If you did, I would have to get rid of him and engage another, and, I can assure you, that perfectly useless persons six feet two in height are not to be picked up on every street corner. No, dear boy, they are not, I give you my word. People are so unthinking that they will ask foolish questions. I intend to discourage this habit as much as possible. You want to know what he is there for? Now if I had placed a marble statue at the top of the stair, you would not have been offended if it did not answer your query, don’t you know, and you would not have asked what it was there for, don’t you know. There are so many useful things in this world that something untainted with utilitarianism ought to be welcomed by every thinking man, and if this deplorably proficuous country is ever to be redeemed, we artists must lead the way, don’t you see.” The grand individual at the head of the stair had his uses, nevertheless; for when Haldiman and another, accepting Barney’s effusively cordial invitations to attend one of his “At Homes,”
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    entered-the hall below,and saw this magnificent person standing like a resplendent statue before and above them, Haldiman gasped, “Great Heavens!” and groped his way out on the pavement again, followed by the no less astounded other, who was an artist also struggling along in the black and white line. The two exchanged glances when at a safe distance from the studio, pausing as they did so. Their amazement was almost too great for words, yet Haldiman remarked solemnly: “I might have expected something of that sort. Imagine us dropping in there in these clothes! Lucky escape! I know a place on the King’s Road where there are fluids to drink. Let us go there and see if we can recover from this blow. O Barney, Barney, what deeds are done in thy name!” So the living statue silently warned off Barney’s two Bohemian friends, who are all right in Paris, don’t you know, but not at all desirable when a man settles down to serious work and expects nobility at his receptions. The calm dignity of Barney’s “man” was offset in a measure by the energetic activity of the boy in buttons who threw open the door with a flourish. “Buttons” might be likened to a torpedo boat, darting hither and thither under the shadow of a stately ironclad. While the left hand of the small boy opened the door, the right swept up to his cap in a semi-military salute that welcomed the coming and sped the parting guest. It would be difficult to imagine a room more suitable for an artistic function like Barney’s “At Homes” than Barney’s studio. The apartment was large, and it contained many nooks and crannies that the Tottenham Court Road furnisher had taken excellent advantage of. There were neat little corners for two; there were secluded alcoves fitted with luxurious seats; there were most alluring divans everywhere, and on the floor were the softest of Oriental rugs. Eastern lamps shed a subdued radiance over retired spots that otherwise would have been dark, and wherever a curtain could
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    hang, a curtainwas hung. Barney’s most important works, framed in gold and silver or the natural wood, were draped effectively, and to prevent the non-artistic mind from making a fool of itself by guessing at the subject, the name of each picture stood out in black letters on the lower part of the frame. There were “Battersea Bridge at Midnight,” “Chelsea in a Fog,” “Cheyne Row at Three A. M.,” and other notable works, while one startling picture of the Thames in crimson and yellow showed Barney’s power to accomplish a feat, which, if we may trust a well-known saying, has been tried by many eminent men, but has been rendered unsuccessful by the incombustible nature of that celebrated river. Barney’s “afternoon” was at its height, when the bell was rung by a young man who had not received a card; but “Buttons” did not know that, and he swung open the door with a florid flourish as if the visitor had been a duke. The incomer was as much taken aback by the triumph of nature and art at the head of the stair as Haldiman had been, but although he paused for a moment in wonder, he did not retreat. He had a vague notion for an instant that it might be Barney himself, but reflection routed that idea. He was entering a world unfamiliar to him, but his common sense whispered that the inhabitants of this world did not dress in such a fashion. “Is Mr. Barnard Hope at home?” he asked. “Yessir,” answered the boy, with a bow and a wave of his hand. “This is his day. What name, sir?” “Marsten.” “Mr. Marsten,” shouted the boy up the stair. The decorated sphinx at the top was uninfluenced by the announcement, but a less resplendent menial appeared, who held back the heavy curtains as Marsten mounted the stair, and, when he entered, his name was flung ahead of him upon the murmur of conversation within. The sight that met Marsten’s eye as he entered the studio was rather disconcerting to a diffident man, but he was
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    relieved to notice,after a moment’s breathless pause beyond the threshold, that nobody paid the slightest attention to him. The large room seemed bewilderingly full of people, and a row of men were standing with their backs against the wall, as if they were part of the mural decoration. Many of them held tea-cups in their hands, and all of them looked more or less bored. The divans and chairs had been arranged in rows, as if for the viewing of some spectacle, and every seat was taken, most of the occupants being ladies. Two men-servants were handing around tea and cake, while Barney himself flitted hither and thither like a gigantic butterfly in a rose garden, scattering geniality and good-humour wherever he went. The steady hum of conversation was brightened constantly by silvery laughter. It was evident that the gathering, with the possible exception of that part of it standing pensively around the walls, was enjoying itself. As the throng slowly resolved into units before the gaze of young Marsten, his heart suddenly stopped, and then went on again at increased speed, as he recognized Edna Sartwell sitting on one of the front chairs, smiling at some humorous remark which Barney, leaning over her, was making. A moment before, Marsten had been conquering his impulse to retreat, by telling himself that all these idle persons were nothing to him; but now, when he had recognized one person who was everything to him, he had to quell his rising panic with a new formula. Although out of his depth and ill at ease, he knew that he would not quit the field in a fright before the task he had set himself was even begun. At the back of his nature there was a certain bull-dog obstinacy, the limitations of which had never yet been tested, although this unexpected meeting with a number of his fellow-creatures in an evidently higher social station than his own put a severe strain upon his moral courage. In vain he told himself that he was as good as any of them; for in his heart he did not believe that he was, so the assurance was of little value to him. Finally, he took his courage in his hand, and spoke to the servant who had held aside the curtains for him.
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    “Would you tellMr. Hope that I wish to speak with him for a moment?” Barney approached the new-comer with smiling face and extended hand. “Oh, how-de-do, how-de-do? I am so glad you found time to come to my little affair. You are just in time—just in time, don’t you know.” Barney’s artistic eye rapidly took in the appearance of his guest, and all at once he realized that his clothes had not quite the air of Bond Street about them, in spite of the fact that they were flagrantly the best suit his visitor had. The smile faded from the artist’s face. “Oh, pardon me!” he added. “I thought I recognized you, but I don’t think I’ve had the pleasure of——” “No. We are not acquainted, Mr. Hope. I am one of the workmen in your father’s factory.” “Really. You have some message for me, perhaps?” “I came of my own motion. I wished very particularly to speak with you on business.” “Oh, but really, my good fellow, don’t you know! This is my ‘At Home’ day. I never talk business on these days, never. If you want to buy any of my pictures, or anything, don’t you know, you must come another day.” “I did not come about pictures, but about something vastly different and more serious.” “My good fellow—you’ll excuse my interrupting you, won’t you? There is no serious business except art, and to-day I don’t even talk art.” “Human lives,” said Marsten, hotly, “are more serious than art.”
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    “Please don’t raiseyour voice. You are certainly wrong about things, but I haven’t time to correct you to-day, don’t you know. All one needs to say about your last remark is that human lives are ephemeral, while art is everlasting Therefore is art the more important of the two. But we’ll let that pass. Can’t you come and talk another day? I’m sure I shall be delighted to see you at any time.” “Couldn’t you give me five minutes out on the landing?” “It is impossible. I cannot leave my guests. You see, we have the dancing Earl on in a few moments. His Grace is just now arranging his skirts. I really must go, don’t you know.” “Then I will stay until the Earl has done his dancing, if that is what he is here for.” “Do, my dear fellow, do. A most excellent idea. I am sure you will like it, for though I have not seen the dance myself, I understand it is quite unique. Have a cup of tea. I would have sent you a card, if I had thought that any of my father’s workmen were interested in the latest movements of art; but never mind the lack of invitation. If you care to stay without it, I shall be delighted. It is really very good of you to drop in, in this unexpected way; it is the kind of thing I like, so Bohemian, don’t you know. You’ll excuse me now, I’m sure,” and Barney tripped away to see that all arrangements for the appearance of the Earl were complete. The model-stand had been pushed to one end of the room fronting the audience; heavy curtains had been drawn across the big north window, leaving the place in semi-darkness; there was the hissing and sputtering of a lime-light in the gallery, causing inquisitive people to turn their heads and see what it was. Marsten stood against the wall beside another man, who said to him in a weary tone: “Who is this man, Barnard Hope?”
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    “He is anartist,” answered Marsten, astonished that one guest should question a stranger regarding their mutual host. “Evidently,” replied the other “But who are his people, or has he any? “His father is one of the richest manufacturers in London.” “Egad, I was sure of it. I knew there was a shop somewhere in the background, the fellow is so beastly civil.” Conversation was here interrupted by a figure leaping on the model-stand, while at the same instant a blinding white light was thrown from the gallery upon it. There was a ripple of applause and the Earl, a beardless youth of perhaps twenty, bowed. He looked like a girl in his clinging fluted skirts. He was a scion of an ancient noble family, founded by an affectionate dancer of the opposite sex in the reign of the second Charles, and it was quite in the regular order of things that there should be a recrudescence of terpsichorean ability in the latest member of the house. The white light changed to red and the skirt dance began. As it went on it was received with tumultuous applause, for a London audience is always easy to please, especially when there is no charge for admission at the doors. Still it must be admitted that the sprightly little Earl deserved the warmth of his reception, for his exhibition was a model of grace and agility, while his manipulation of the voluminous skirts left little to be desired. The variegated colours thrown on the fluttering whirling drapery gave a weird unearthly effect to the rapid movements of his Grace, and the grand finale, where a crimson light was flung upon the flimsy silk waving high above the dancer’s head, gave the agile young nobleman the appearance of one of the early martyrs wrapped in flames. The curtains were drawn back, the entranced assemblage rose to its feet, and, gathering about the host, congratulated him upon the success of his afternoon. Barney received these felicitations with exuberant gratification, and the young Earl, finally emerging from
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    behind the scenes,clothed and in his right mind, but a trifle breathless, accepted modestly his well-earned share of the compliments, for, let cynics say what they will, true merit is always sure of appreciation in the great city. Edna Sartwell lingered for a moment on the outskirts of the throng that pressed around Barney and the little Earl, then leisurely made her way towards the door, waiting for her step-mother, who lingered to thank her host. The men who had stood along the wall were already in the street, and the other visitors had nearly all departed. Marsten stood alone where he was when the entertainment was going on, gazing with beating heart at the girl he loved. She came slowly towards him, her head averted, watching her step-mother standing in the fast thinning group about Barney. There was a certain unconsciousness about her movements, as if the young man had hypnotized her, and was drawing her to him by mere force of will. At last her skirts touched him and his nerves tingled to his finger ends. Almost involuntarily, he murmured: “Miss Sartwell.” The girl turned her head quickly, and for a moment met his gaze without recognizing him. “My name is Marsten,” he said huskily, seeing she did not know him. “I met you the other evening at your fathers office, when he and I were talking of the strike.” “Oh, yes,” she replied; “at first I did not remember you. I—I did not expect to——” She paused and seemed confused, looking away from him. “To find me here,” said the young man, completing the sentence for her, and gathering courage as the delightful fact that he was actually talking to her impressed its almost unbelievable reality upon him. “I did not know there was anything like this going on. I came to consult with Mr. Hope on the same subject——” He flushed as the
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    memory of onesubject arose in his mind, and he felt his newly acquired courage beginning to ebb again. He pulled himself together and ended lamely, “—about the strike, you know.” “Oh,” said Edna, instantly interested. “Is there anything new about the strike?” “Yes; there was a meeting last night, and it was unanimously resolved to quit work.” The colour left the girl’s cheeks. “And are the men out? Is that why you are here to-day?” “No; they do not go out until Saturday. I did what I could to prevent it, but without success. I applied to your father for this afternoon off, and he gave it to me without asking any questions. It seemed to me that in the few intervening days before the men go out, something might be done, when the enthusiasm of the meeting had died down. That’s why I came, but I’m afraid there is not much to look for here.” “Does father know?” “About the strike? Oh, yes.” The girl’s winsome face clouded with apprehension. “I am so sorry,” she said, at last. “I am sure it is not father’s fault, for he is kind to every one. Even if he is sometimes severe”—she cast a shy upward glance at the young man that made his heart beat faster —“he is always just.” “Yes, I know that is true. He will beat the men, and that is the reason I want moderate counsels to prevail. The workingman is always the under dog. Most of his mouthing friends are fools, and he himself is the greatest fool of all.” “Don’t you think you are a little hard on the workingman? Were you here in time to see the dancing Earl?”
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    She looked athim with a frank smile, and Marsten smiled in company with her—it brightened his face wonderfully, and established an evanescent bond of comradeship between them. “I had forgotten the Earl,” he said. “I must go now. I see my step-mother looking for me. I hope you will be successful in averting trouble at the works.” She extended her hand to him and he took it tenderly, fearing he might grasp it too closely and betray himself. Mrs. Sartwell and her step-daughter were the last to go. Barney threw himself on a divan and lit a cigarette. “Well, my young friend, here we are alone at last. Help yourself to the cigarettes and allow me to offer you something stronger than the tea with which we regale the ladies. We have several shots in the locker, so just name your particular favourite in the way of stimulant while I order a B and S for myself. You might not believe it, but one of these afternoons takes it out of a fellow more than a day’s work at the factory. Not that I ever indulged in factory work myself, but I think you said it was in your line.” “Yes,” said Marsten, after declining the offerings of his host. “It is about the factory I wish to speak with you. The men resolved last night to go out on strike.” “Foolish beggars.” “I quite agree with you. Their action is worse than foolish—that is why I came to see if you would intervene in any way so that a better state of feeling might be brought about.” “Well, now—let’s see, I believe I have forgotten your name, or did you tell me? Ah, Marsten—thanks—so many things on my mind, don’t you know. You see, Mr. Marsten, it’s really no business of mine, although I must admit that your offer of the position of arbitrator
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    flatters me. Thismakes twice I have been asked within a few days, so I think I must really be a born diplomat, don’t you know. But you see, there’s nothing I enjoy so much as minding my own business, and this strike is no affair of mine.” “I think it is. All the luxury you have here is surely earned by the men I am now speaking for.” “My dear fellow, you are not in the least flattering now; you are not, I assure you. You are saying in other words that my pictures do not sell.” “I had no intention of hinting anything of the kind. I have no doubt you can sell anything you paint.” “Ah, you are commending the artistic discernment of the British Public which—at present—is an honour the B. P. does not deserve. It will come round ultimately—the great B. P. always does—but not yet, my boy, not yet. Give it time, and it will pour cash in your lap. I regret that the moment—how shall I put it?—well, up to date, has not arrived. The workmen whom you honour by associating with, at present supply—as with perhaps unnecessary bluntness you state it —the financial deficiency. But the public will pay for it all in the end —every penny of it, my boy. You see these pictures around the walls? Very well; I hold them at two thousand pounds each. I find little difficulty in so holding them, for no section of the great British Public has, up to the present time, evinced any dogged desire to wrench them from me in exchange for so much gold. What is the consequence? I shall increase the price five hundred pounds every year, and the longer they hold off, the bigger sum they will have to pay, and serve them jolly well right, say I. Ten pictures twenty thousand pounds—this year. Next year twenty-five thousand pounds, and so on. With property on my hands increasing at that rate, I should be an idiot to urge people to buy. Ground rents in Belgravia are not in it with my pictures as investments. So you see, Mars-ten, when my day comes, the factory will be a mere triviality as an income producer compared with my brush, don’t you know.”
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    “But in themeantime?” “In the meantime, I am getting along very nicely, thank you. The strike will not affect me in the least. The men may have to diminish the amount of shag or whatever awful mixture they smoke, but I shall not consume one cigarette the less. I have done nothing to bring on this struggle. If the men want to fight, then, by jingo! let them, say I.” “The fight is not yet actually on and won’t be until Saturday. Now is the time for a cool-headed man to interfere and bring about an amicable understanding. Won’t you at least make the attempt, Mr. Hope?” “My dear Marsten, the way of the self-appointed arbitrator is hard. I was reading in this morning’s paper about your charming meeting, last night, and I noticed that one man who interfered was kicked off the platform and thrown out into a side street. That is the workingman’s idea of how an intellectual discussion should be terminated. I love the workingman myself, but I sometimes wish he would not argue with his hob-nailed boot. By the way, did you see this interesting episode? You were there, I suppose?” “Yes. Braunt, who was kicked out, is one of the best workmen in the factory, but very hot-tempered. He lost control of himself last night, under strong provocation, and when he was outside tried to batter in the door. The police interfered, and he knocked down three of them. This was disastrous, for he was fined five pounds this morning, and I have been trying to raise the money so that he need not go to prison; but we are in the minority—he exasperated our fellow-workmen—and I am not getting on well with the subscription list.” Barney sprang to his feet. “Knocked down three, did he? Goodman. That’s something like. It’s a most deplorable trait in my character that I somehow enjoy an assault on the police, and yet I recognize the general usefulness of
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    the force. Fivepounds did you say? Then there will be the costs; I don’t understand much about these things, but I believe there are usually costs, on the principle of adding insult to injury, I suppose. Will a ten-pound note see him through? Good. Here it is. Three- pound-odd a policeman is not expensive when you think how much some of the luxuries here below cost, don’t you know. No thanks, Marsten, I beg of you; it’s a pleasure, I assure you.” As Marsten took the money a servant came in and said in a low voice: “Simpson wants to know if he may go, sir.” “Bless me, yes. I thought he had gone long ago. Simpson is my ornamental six-footer at the head of the stair; perhaps you noticed him as you came in. Poor fellow, he’s not allowed to do anything but stand there and look pretty, so I suppose it gets wearisome. Imagine such boy-stood-on-the-burning-deck devotion at this end of the nineteenth century! I had forgotten him, absorbed in your interesting conversation. Well, Marsten, I’m sorry I can’t arbitrate, but drop in again, and let me know how things go on. Good afternoon!”
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    O CHAPTER X. n Saturdaythe men took their well-earned pay, one by one, and went out of the gates quietly, if sullenly. During the days that had intervened between the meeting and the strike, neither side had made advances to the other. If Sartwell had prepared for the struggle, these preparations had been accomplished so secretly that Gibbons failed to learn of them. The secretary of the Union issued a manifesto to the press, setting forth the position of the men in temperate phrase that had the effect of bringing public sympathy largely to the side of the workers. It was an admirable document, and most of the papers published it, some of them editorially regretting the fact that in this enlightened country and this industrial age, some hundreds of men, the bone and sinew of the land, willing to work, were forced to go into the streets in protest against a tyranny that refused even to discuss their alleged wrongs. The newspapers pointed out that whether their grievances were just or not was beside the question; as the point was that the manager had refused to see a deputation, and this high-handed conduct the papers expressed themselves as forced to deplore. Both members of the firm thought this manifesto should be answered. The manager did not agree with them, so it was not answered. Pickets were placed before the gates, and a few extra policemen appeared, as if by accident, in the neighbourhood; but there was nothing for either policemen or pickets to do. On Monday, some of the men lounging around the place looked up at the tall chimneys, and saw them, for the first time during their remembrance, smokeless. They had never noticed the smoke before, but now its absence created an unexpected void in the murky outlook. It was as if the finger of death had touched those gaunt lofty stacks, and the
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    unusual silence ofthe place the men had always known to be so busy seemed to give the situation a lonely feeling of solemnity they had not looked, for. On Tuesday some dray-loads of new machinery arrived at the works, and these the pickets attempted to stop, but without success. Gibbons was consulted, but he took a sensible and liberal view of the matter. “Let them put in all the new machinery they wish. That will mean employment for more men when we go back. We will not interfere with Sartwell until he tries to fill the works with other employees.” For the remainder of the week the shops echoed with the clang of iron on iron, but no smoke came out of the tall chimneys. “Call this a fight?” said one of the men, over his mug of beer. “I call it a bean-feast.” On Saturday, strike pay was given out at headquarters, each man getting his usual wage, for the Union was rich. It was indeed a bean- feast—all pay and no work. The first week had enabled Sartwell to make repairs and to add machinery that had long been needed; but it had another effect which he considered more important still. It allowed Mr. Monkton and Mr. Hope to recover their second wind, as it were. These good but timorous men had been panic-stricken by the going out of their employees, and by the adverse comments of the press. As nothing happened during the week they gradually regained what they called their courage, and, although they perhaps did not realize it, they were more and more committed to the fight when it did come on. They could hardly with decency, after keeping silence for a week during which there was peace, give way if afterwards there should be violence. The vigilance of the pickets perhaps relaxed a little as time went on and there was nothing to do. But one morning they had a rude
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    awakening. When theyarrived at the gates they saw smoke once more pouring from the chimneys; there was a hum of machinery; the works were in full blast; and the former workers were outside the gates. The news spread quickly, and the men gathered around the gates from all quarters. Gibbons was early on the ground, like an energetic general, ready to lead his men to the fray. He saw that the fight was now on, and he counselled moderation when he spoke to the excited men. It was all right, he answered them; he had expected this, and was prepared for it. The gates were closed, and when Gibbons asked admittance to speak with the manager his request was curtly refused. This refusal did not tend to allay the excitement, nor to improve the temper of the men. The police kept the throng on the move as much as possible, but the task became more and more difficult as the crowd increased. At noon a wagon, evidently loaded with provisions, drove down the street, and when the mob learned that its destination was the works, a cry went up that the vehicle should be upset. Again the pacifying influence of Gibbons made itself felt, and the wagon, amidst the jeers of the bystanders, drove in, while the gates were speedily closed after it. Gibbons retired with his captains to headquarters, where a consultation was held. There was a chance that Sartwell, during the first week, when it was supposed he was putting in new machinery, had also been building dormitories for his new men, and that he was going to keep them inside the gates, free from the influence of the Union. This plan had not been foreseen by Gibbons, and he was unprepared for it.
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    “The men mustcome out sooner or later, and when they do we will have a talk with them,” said the secretary. “My own opinion is that they will come out to-night at the usual hour, and I propose to act on that supposition. If I find I am wrong, we will meet again to- night, and I will have some proposals to make. In a short time we shall be able to learn whether the scabs are coming out or not. Meanwhile, get back among our own men, and advise them not to make any hostile demonstration when the blacklegs appear; and when the scabs come out, let each man of you persuade as many as you can to come to the big hall, where we can have a talk with them. Tell the men that if there is any violence they will be merely playing into Sartwell’s hands. We don’t want the police down on us, and, until there is a row, they will at least remain neutral.” This advice commended itself to all who heard it, and, the details of the programme having been ar ranged, they all departed for the scene of conflict. Promptly at six o’clock the gates were thrown open, and shortly after the “blacklegs” began to pour forth into the street. There were no hootings nor jeerings, but the strikers regarded the new-comers with scowling looks, while the latter seemed rather uncomfortable, many of them evidently apprehensive regarding their reception. “Men,” cried Gibbons, “who is your leader? I want a word with him.” The stream of humanity paused for a moment, in spite of the commands of the police to move along. The men looked at one another, and Gibbons quickly recognized the state of things—they were strangers to each other, coming as they did from all parts of England. This surmise was confirmed by one man, who spoke up: “We’ve got no leader,” he said. “Then you be the spokesman,” cried Gibbons. “Did you men know, when you came here, that there was a strike on?”
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