Fight of the Century

by Michael Chabon

  * * *

  Wait a minute, our alert, perhaps somewhat right-leaning, reader—let’s call him “Len”—may ask at this point. This ruling gives a person convicted of a deportable crime the right to appeal before he or she is deported. But do we mean all deportable crimes?

  Even unto, let’s say, murder?

  There is a temptation, when describing a law one deems bad, to bring forward only the most egregious examples of its application, that is, to highlight the most sympathetic cases, a temptation to which, I admit, I have succumbed above. But a law must also be evaluated as it applies to everyone to whom it might be applied—even, and especially, to the worst-case scenarios. Here we might ask, experimentally, on Len’s behalf: Okay, let’s say there’s a legal immigrant who has been convicted of a brutal murder. Does even that person have the right to be heard by a judge before being deported?

  INS v. St. Cyr concluded: Yes, even this hypothetical immigrant/convicted murderer, having served his time, is entitled to his day in court.

  To which Len might ask bluntly: “Why should such a person, who is not even from here, but only here by our generous consent, be allowed to continue to stay here after being convicted of such a terrible crime? Why bother? Why should we have to endure the extra trouble and expense of ensuring that such a person gets a court hearing? Why not just throw him out and be done with it?”

  Is this an entirely irrational position? After all, what do we lose by deporting this hypothetical murdering fellow without giving him a chance to appeal? Are we a better country if we get rid of him, no questions asked, or if we give him a chance to appear before a judge?

  * * *

  The law, we feel intuitively, reflects our public morality. We are against stealing, and so we make laws that reflect this belief. We observe that smoking is bad for our health, and ban it in public places. But at certain higher altitudes, the law also helps us construct that morality, helps us discover it. Reading about INS v. St. Cyr, I was struck by the way that the law, led by the ACLU’s efforts, kept feeling around for—moving in the direction of—what was right, for what most closely tracked the Constitution’s intent. This process seemed to function something like a rigorous mathematical proof, or, God help us, the writing of a novel: hundreds of small decisions and logical/legal crossroads, traversed via rigorous application of objective criteria, gradually leading to a conclusion that might surprise us, or feel counterintuitive, or which we might even find repellent. In this way, the legal process can be seen as a sort of machine that operates via precedent, the function of which is to ask: What do we really believe? Or: What should we really believe?—a complex logical operation that is smarter and more compassionate than we naturally/habitually are capable of being; a machine whose innards apply legal and logical rigor in order to produce a result we must honor, because that machine (unlike us) runs entirely on our highest principles. The result, having been so produced, is available for us to ponder. If we study that result carefully, we may gain a better understanding of our democracy and its highest intentions.

  So, complex machine, we ask you: What is the benefit of extending the right to appeal to our hypothetical murderer, as you have done via INS v. St. Cyr? If you claim that this is a good thing, why is it a good thing?

  * * *

  Who has not, in these Trump years, noticed a change in the way we think and talk about immigrants? Seeping out from the far right into the larger culture is the notion that immigrants, even legal immigrants, are somehow irredeemably less: deficient, tainted by their origins; surreptitious usurpers, trying to take things away from us “real” Americans; undesirable; suspect; irredeemably and regrettably Other. It’s not a new American idea, but it is making an unwelcome comeback. The tacit intent of this type of thinking is to discourage immigrants from coming and, if they have already come, encourage them to leave. And “immigrant,” on the street and on the Internet, is often code for “nonwhite person,” and “nonwhite person” often incorrectly signifies, to certain people, “immigrant.”

  The immigrant falls even lower on the scale if he or she is, in fact, here “illegally,” that is, here after staying past the expiration of a visa, or without having gone through the legal process of being admitted. But for many, there was (and still is) no viable legal process, no line to join. Legal exclusions have been present for some groups throughout our history. The first immigration law passed by Congress, the Naturalization Act of 1790, provided that only “free white person[s]” could become naturalized citizens. There followed a steady process of racial and ideological exclusions: in 1882, the Chinese, the uneducated, the mentally unwell, those with infectious diseases were excluded; the Japanese were excluded in 1902, anarchists in 1901, the illiterate in 1917. Inspection stations appeared at the southern border in 1891. National quotas were first established in 1921; the Border Patrol came into being in 1924. Even today, a Mexican national who is a close relative of a US citizen can face a wait of more than twenty years for a visa. Filipinos, Chinese, and Indians also face years-long delays, while people of other nationalities face no significant wait time at all. That is to say: the notion of who can come here and how and if they may stay is an evolving notion, one about which, at various times in our history, we have felt in different ways.

  We find, in the contemporaneous discussion around the AEDPA and IIRIRA, a pre-echo of our present discourse, in which it seems that many of the parties inveighing against immigrants may possibly never have met one or, to put it more generously, have only a vague, negative, projective notion of who comprises the immigrant population in our country. (Senator Phil Gramm of Texas, in 2000, arguing against a reform bill that would have modified the AEDPA to address some of the excesses discussed in this essay, suggested, in a hyperbolic and, of late, familiar tone, that the reform “welcomed money launderers, tax evaders, perjurers, fugitives from justice, alien smugglers and an assortment of other scoundrels to live among us.” He did not include “rapists and murderers,” but this was, you know, the year 2000, a simpler, gentler time, God help us.)

  At the other end of the spectrum of ways in which one may feel about immigration is a view that sees no distinction, really, between citizen and occupant: if a person is here, she is here, and deserving of all the rights of the citizen. Her presence is what predicates our protection of her rights, rights that are presumed to have existed always and everywhere, in perpetuity. Her presence here, we might even say, gives us an opportunity to avail her of these rights in which we so fervently believe, regardless of how she got here. This view values a person’s dignity and physical well-being over her legal status; presumes good intentions on her part; would prefer to err on the side of too much mercy over too little, especially given the inherent vulnerability of the type of person in question.

  Why must we resist this view of immigrant-as-less? Because: it contradicts our founding principles. We believe, or claim to believe, that all men are created equal. We do not say “all Americans” or “all native-born Americans” or “all citizens,” or “everyone who has filled out the proper paperwork,” but “all men,” by which we now understand ourselves to mean “all human beings.” The due process clause of the Fifth Amendment does not refer to the rights of citizens only, but to the rights of “all persons.”

  A human being far from home, in a country into which he or she was not born, is still, according to the best version of our founding principles, a human being, and entitled to all of the rights therein. And a human being anywhere who has committed a crime, we believe, should be entitled to her day in court, by which we really, ultimately, mean: we should not cut her off from the human by denying her a chance to explain who she is and how her situation came to pass. It is a beautifully human thing, I think, to build in this fail-safe—an admission of our own limitations, the ritual enactment of a sort of auto-humility that stops us from potentially doing a needlessly harsh thing in error. We have, this way of thinking says, sufficient largesse to show abundant compassion;
it does not sully us to do so but ennobles us.

  So, when we find a person like our hypothetical immigrant murderer, who has done his time within our country, we have a choice: Do we make an exception to our usual view of personhood, saying, “Sorry, these rights, in which we supposedly so passionately believe, are only for citizens,” or do we err on the side of the larger interpretation: these rights are for all human beings, and we will do our best to grant them to as many people as we naturally can, including you, hypothetical murderer, by virtue of the fact that we find you here among us. So much do we believe that all human beings are created equal, with certain inalienable rights, that we delight to offer these rights to any and all we can. Rather than hovering protectively over these rights, doling them out like a miser, we celebrate them and offer them with joy and confidence, as we might a precious gift to a dear friend.

  * * *

  The law, here, seems to say: It is correct and enlightened that our government should make the space for such an appeal to occur—for anyone and everyone. It endorses a view of life that understands the value of particularity and specificity and the wisdom of human interlocution—the notion that the complexities of a truth are best communicated by one human to another theoretically sympathetic human, in person.

  Could there be—could there ever be—a case where our convicted murderer, through the courts, overturns his deportation order and is allowed to stay, and we are happy about that? A case where this person’s individual equities, weighed against the crime for which he has paid the penalty, argue for relief from deportation? In a sense, having concluded that this person’s presence within our border and our understanding of justice confer on him his right to a day in court, we actually don’t need to worry about this. That’s for the judge to decide. But let’s go ahead and worry about it. We might view this consequence of the ruling as an endorsement of a fundamental belief in human malleability—in a human being’s potential to change. Might a convicted murderer’s individual equities conceivably be such that a judge could be persuaded that the country would in fact be better with him in it than out of it? Well, the ruling seems to imply, it’s a big world and anything can happen. Or maybe the ruling is saying: Look, the cost of assuming that such a transformation is possible is less to us than the cost of assuming it is impossible; that is, it is more in keeping with our vision of ourselves to believe in the possibility of such a transformation and to allow a mechanism by which such a transformation might be recognized than to categorically deny it.

  * * *

  One last thought: To extend this way of thinking beyond the realm of INS v. St. Cyr, and for the sake of argument, we might also conclude this: a human being far from home, in a country not his or her own, even he or she who has not followed the local convention on the paperwork, is still a human being and still entitled to the rights therein. That is: anyone within our borders is going to get—we are going to fight to see that he or she gets—treated according to our founding principles: as if he or she, in his or her rights to full personhood, is every bit our equal, regardless of the method by which he or she came to be here.

  It seems to me that part of what the ACLU does for us is force us, through rigorous application of the law and a dedicated seeking after its meaning, to understand our principles at their highest level. Having attempted to see what our beliefs really mean, at high altitudes, in rarefied atmospheres, we are more capable of living into them down here on the ground and more likely to protect them with the appropriate energy.

  LAWRENCE V. TEXAS (2003)

  Lawrence v. Texas struck down a Texas law defining same-sex sexual activity as a crime under state law, simultaneously striking down sodomy laws in twelve other states. The Supreme Court’s ruling made same-sex sexual activity legal in every state and territory of the United States.

  On September 27, 1998, John Lawrence and Tyron Garner were arrested by Texas police after police entered Lawrence’s home, having been called to investigate reports of a “black man going crazy with a gun.” (These reports had come from Garner’s jealous partner.) The police allegedly found Lawrence and Garner engaged in sexual activity in Lawrence’s bedroom and arrested both men.

  In Lawrence, the Court found that the Texas Penal Code, which criminalized sodomy, violated the due process clause of the Fourteenth Amendment. Justice Anthony Kennedy, writing for the 5–4 majority, overturned the Court’s prior ruling in Bowers v. Hardwick (1986), which had previously upheld the constitutionality of sodomy laws and had found no basis for the constitutional protection of sexual privacy.

  Live from the Bedroom

  The Culture War

  MARLON JAMES

  This is not an essay about lynching. But the curious landmark case of Lawrence v. Texas made me think about it all the same. And not just because it was inflamed by two different kinds of panic over a specific fear in the unpoliced white imagination, what writer Greg Tate once called “the black sex machine gone berserk.” Quick recap: When Robert Eubanks, a white man of Harris, Texas, called the police on his friend John Geddes Lawrence Jr., a white, gay fifty-five-year-old medical technologist, and mutual friend Tyron Garner (black), it was because he noticed that Lawrence and his on-and-off-again lover had hit it off way too well, and while he went out to get soda, he jealously surmised that they were getting it on. Many white people profess ignorance at how racism actually affects black people yet demonstrate full awareness of how to use it for the most damage. Eubanks called the police, counting on their hair-trigger reaction, yet more likely discounting how bloody these encounters usually play out.

  But Eubanks, in an action that would go viral with white women twenty years later, called the police on a black person having too much fun. And like quite a few white men from the good old South, Eubanks knew exactly what to say to get his revenge. He called the police to report not a sex but a gun crime, specifically “a black male going crazy with a gun” at Lawrence’s apartment. The recklessness of Eubanks’s imagination remains stunning, but the black gun in the white mind has often been inseparable from the black cock. As for hard black cocks, the police claimed to have seen that and more when they stumbled on Lawrence and Garner in flagrante delicto. If nothing else, Eubanks was as excellent a reader of racial assumptions as he was of sexual chemistry. Garner was two things in the Middle American fancy wrapped into one: big black gun as phallic symbol and a big black penis as gun substitute. It’s remarkable how a case that would go on to make great strides for sexual orientation started out with white America’s warped perceptions about race. This was a case that could have gone to the Supreme Court for very different reasons had the police chosen to act differently—meaning had they assumed that Garner was the kind of threat Eubanks claimed he was. But whatever it was the police saw those two men doing, both were arrested and charged with a misdemeanor under Texas’s antisodomy law.

  But back to lynching. And with it a side on bestiality. Supreme Court Justice Antonin Scalia, in his dissenting opinion, argued that in the wake of the Lawrence v. Texas decision—which invalidated sodomy laws in twelve other states, making same-sex sexual activity legal in every US state and territory state—laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity would not prove sustainable.

  Slippery-slope theory is a common trope of conservative thinkers, as is conflation, but the opinion was nonetheless curious given that in states like Texas, acts of bestiality were actually legal. Texas made it illegal only in 2017 on condition that lines such as “act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl” were struck from the law. As for lynching, that became illegal only in 2019. I make this wide digression to point out that whether it was overturning an unjust illegality (consensual sex between men), or outlawing a long-accepted legality (lynching black men and women, sex with a donkey), there’s a sense in America that justice too often comes too late.

  Y
ou don’t have to be gay to see the ripple effect of Lawrence. For one it overturned Bowers v. Hardwick (1986), a Supreme Court decision that even a few members of the Court knew should never have happened: it upheld a Georgia statute that sexual privacy did not deserve constitutional protection. Intimate sexual activity was one of our freedoms after all; at least it was to benefit from due process. Lawrence v. Texas paved the way for gay marriage and, with it, curiously enough, a wave of gay men who would have disapproved of both Lawrence and Garner.

  But the details of the actual case remain fascinating because it shows two clashing visions of America finally going to war, both clutching the Fourteenth Amendment like a Bible: those demanding that freedom for all should mean all, and those demanding that traditional values must mean that what many consider freedom isn’t freedom at all but leeway to deviate from morality. There are more things you should know. Antonin Scalia’s dissent is fascinating in its frightfulness, especially when you consider that Lawrence was not that long ago. He found this judgment in line with the infamous homosexual agenda, an abstract concept that seemed sprung from a fake document, like a Protocols of the Elders of faggotry.