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McKanders on State & Local Immigration Laws & Jim Crow

By Lawrence Solum

Karla Mari McKanders (University of Tennessee College of Law) has posted Sustaining Tiered Personhood: Jim Crow and Anti-Immigrant Laws (Harvard Journal of Racial and Ethnic Justice, Vol. 26, p. 163, 2010) on SSRN. Here is the abstract:

Latino immigrants are moving to areas of the country that have not seen a major influx of immigrants. As a result of this influx, citizens of these formerly homogenous communities have become increasingly critical of federal immigration law. State and local legislatures are responding by passing their own laws targeting immigrants. While many legislators and city council members state that the purpose of the anti-immigrant laws is to restrict illegal immigration where the federal government has failed to do so, opponents claim that the laws are passed to enable discrimination and exclusion of all Latinos, regardless of their immigration status. In challenging one anti-immigration ordinance in Hazleton, Pennsylvania, the American Civil Liberties Union stated that ?[i]f the ordinance is allowed to stand, anyone who looks or sounds foreign ? regardless of their actual immigration status ? will not be able to participate meaningfully in life in Hazleton, returning to the days when discriminatory laws forbade certain classes of people from owning land, running businesses or living in certain places.?

This paper theorizes that state and local anti-immigrant laws lead to the segregation, exclusion, and degradation of Latinos from American society in the same way that Jim Crow laws excluded African Americans from membership in social, political, and economic institutions within the United States and relegated them to second-class citizenship status. To support this argument, the paper examines the tension that was present between local, state, and federal governments during Reconstruction, which led to the proliferation of Jim Crow laws, and compares it to modern day tension between the federal, state, and local governments over immigration policies, which has led to numerous anti-immigrant laws. Specifically, this paper contrasts and compares the legislative motives behind both Jim Crow and state and local anti-immigrant laws, noting in both instances that states and localities utilize their constitutional authority to regulate matters of state concern to mask discriminatory motives. A normative theme throughout this paper is how the law reifies race by legislating cultural norms that reinforce racial divisions and hierarchy in our country. In conclusion, the paper acknowledges that change in the perception on the status of Latino immigrants may only come from a change in public opinion along with proper federal government action on immigration reform.

Full post as published by Legal Theory Blog on July 30, 2010 (boomark / email).