February 21, 2024 | Rome, Italy


By |2018-03-21T18:49:12+01:00April 30th, 2012|"Closing Argument"|
Chief Justice Roger Taney: Blacks are "beings of an inferior order, and altogether unfit to associate with the white race... "

llegal immigration is a bonfire that won’t go out. People at the end of their rope, many badly in need of state support, are its tinder. Many provide much needed labor. Their numbers are culturally diverse, including the decent and the criminal.

Europe and the United States have each been wrestling with legal responses to the immigration flow, with questionable results. Italy, population 60 million, has close to a million illegal immigrants, while the U.S., population 313 million, has 12-20 million. Wholesale deportation is a non-starter and amnesty unpopular. Political ground in U.S. states with the greatest influx is shifting towards laws intended to police the undocumented, making security and enforcement top priorities.

Italy, which espouses these same priorities, has some of the toughest immigration laws in Europe. Legislation that went into effect in 2009 punishes illegal immigrants with fines and immediate expulsion. Large numbers of Italians are wary of all migrants, and not just those in the illegal community, and this is expressed in many ways, including incidents of violence and racism. The sentiment is mirrored in parts of the U.S., particularly some southern border states. A recent Arizona law based on the “self-deportation” philosophy — tighter policing, employment verification, and mandated IDs — is under national scrutiny, with Republican presidential hopeful Mitt Romney embracing the idea.

Arizona’s “Support Our Law Enforcement and Safe Neighborhood Act” SD 1070 was signed into law in April 2010. The law attempts to co-exist with federal immigration statutes but also significantly expands state police power. Officers are allowed to inquire about the immigration status of anyone lawfully stopped, detained or arrested, if the “totality of the circumstances” creates a reasonable suspicion that a crime has been committed. It also tacks on state penalties to the standing federal crime of not being in possession of alien registration documents.

In July 2010 the Obama Administration challenged the Arizona law, contending that the federal government has exclusive control over immigration enforcement and that federal laws preempt state laws. After the federal government won injunctions against certain provisions of the Arizona law in federal court, the State of Arizona appealed and the U.S. Supreme Court accepted the challenge of adjudicating whether federal immigration laws preclude a state’s efforts at cooperative law enforcement. Oral arguments were heard on April 25, 2012 and a decision is expected before the November presidential vote. It will be defining moment for this Supreme Court.

In the U.S., vigilante killings of illegal immigrants are offset by stories of ranchers being shot by migrant workers. In reality, many American businesses simply couldn’t survive without the flow of people entering the country illegally seeking work, any work, and a chance to better their existence. A balance must be reached.

We’ve been here before.

In 1857, the Supreme Court decided the case of Dred Scott v. John F. A. Sanford. The plaintiff, born a slave in Virginia, moved with his owner to the free states of Illinois and Wisconsin, where he remained a slave over an 18-year period. Although his owner, once in those northern states, was in violation of any number of state and territorial anti-slavery laws, Scott did not seek his freedom in court until 1846. By then he was in Missouri.

Though Missouri law contained many court precedents freeing slaves in similar situations, Scott lost a lower court decision on technical grounds, only to later win a jury trial. But in 1852, the Missouri Supreme Court reversed both the jury verdict and more than 25 years of Missouri case precedent. “Times had changed” according to the Court insisting that slavery in Missouri had to be preserved.

Scott then appealed to the Supreme Court. Under pressure from President-elect James Buchanan to solidify state rights in favor of retaining slavery, the Court ruled 7-2 that Scott had no standing to bring a federal court suit, as he was not a U.S. citizen. In the opinion of Chief Justice Roger Taney, the authors of the Constitution believed that blacks were “beings of an inferior order, and altogether unfit to associate with the white race… and so far inferior that they had no rights which the white man was bound to respect.” Scott was just a piece of property.

By upholding slavery and using an incendiary, unsubstantiated reference to the framers of the Constitution, the Supreme Court helped ignite the Civil War. President Abraham Lincoln, a Republican, and Congress, would later have to smother slavery through force and law.

But racism can’t be legislated away. Nor can it be confined to the shadows.

In Arizona v. United States the Court is being asked to decide whether the historic line on federal exclusivity can be breached. While Arizona and other states have a vested interest in solving a serious problem that federal enforcement has so far failed to rein in, at stake is whether every state should be allowed to weigh in on national immigration policy and assert local biases and prejudices.

In its history, the Supreme Court has risen to act with the responsibility entrusted to it by the nation’s founders to set the tone for a wiser future. Once again it has a chance to remind the country that its heritage is built on the acceptance of waves of immigrants, and to strike a balance in constitutional interpretation that both secures national borders and encourages the assimilation of those who seek refuge and a better future.

About the Author:

Don Carroll wrote the Closing Argument column from 2011 through 2018.