However, that does not include illegal or undocumented immigrants. In 2005, the government estimated that there were 10.5 million unauthorized immigrants living in the United States. Some have estimated that the number might be as high as 20 million.
This new wave of immigration has produced its own fearful reaction among some native-born Americans. While some discomfort has stemmed from the sheer number of immigrants as well as the fact that so many are nonwhite, much of the current debate centers on illegal immigration. First there was the 1986 Immigration Reform and Control Act, which allowed a pathway to citizenship for a few million illegal immigrants and penalized businesses for hiring undocumented workers. Then there was the fight in California in the 1990s over Proposition 187, which would have denied government benefits to illegal immigrants. Most recently, Congress failed to pass immigration reform legislation in 2007, which opponents blocked because they argued it would have given amnesty to illegal immigrants.
In this most recent debate, some conservative opponents of the bill have harkened back to the memory of Ellis Island. Former Republican state legislator and columnist Matt Towery called for an “Ellis Island solution” to America’s immigration problems. He argued for the creation of modern replicas of Ellis Island, where illegal immigrants would “surrender” to authorities. While officials processed their cases and decided whom to admit, these immigrants would be put to work on public projects like building roads and schools. “Why the heck not,” says Towery, ignoring the fact that detained immigrants were rarely put to work while kept at Ellis Island.
“Why was an ‘Ellis Island’ approach good for the goose of American history, but not for the gander of the present day,” Towery asked. Ellis Island immigrants, he continued, had to do more than “put two feet on American soil before earning their status.” Why not demand the same for new immigrants? For Towery, Ellis Island regains its former sievelike quality, which weeded out the desirable from the undesirable, and he wonders why we cannot return to such a process in the twenty-first century.
In a similar vein, Congressman Mike Pence, a Republican from Indiana, crafted his own immigration reform plan that included something called “Ellis Island centers.” Such centers would be located in NAFTA and CAFTA-DR countries and be managed by “American-owned private employment agencies.” The goal would be to screen nonimmigrant temporary workers who could demonstrate that they had employment in the States and no criminal record.
Despite their name, these new centers would be fundamentally different from the historic Ellis Island. Pence’s plan deals with nonimmigrants, not immigrants; the centers would not be run by the federal government, but by private companies; they would be located in foreign countries, not on American soil; and they would mandate that immigrants prove they had jobs, while Ellis Island strictly enforced contract-labor laws to prevent the importation of immigrant labor to undercut the wages of native workers.
Most likely, Pence wanted to capitalize on the belief that the words “Ellis Island” harkened back to a supposedly happier and more successful time in American history. Pence no doubt hoped that these centers would ease the concerns of Americans and provide a screening process for those entering the country.
Unhappy with the new immigration, Harvard political scientist Samuel Huntington also looks to Ellis Island. For him, it was a great success, when “control of immigrants coming by ship was fairly easy and a good proportion of those arriving at Ellis Island were denied entry.” Huntington inflates the estimate of those denied entry to 15 percent, well over the average of 2 percent excluded. His naïve belief in both the restrictive nature of Ellis Island and its relative ease in regulating immigrants would have amused those who ran the inspection station and believed they were barely holding back the flood of European immigrants seeking entry. For Huntington and the other commentators, Ellis Island stands as an historical rebuke to what they feel is America’s current unrestrictive immigration policy.
The use—or misuse—of the memory of Ellis Island masks a common thread in past and present immigration debates. Then as now, Americans are asking themselves: How does the United States decide who gets to enter the country and who does not?
There has never been a time when Americans did not ask themselves that question. It is a myth that before the late 1800s America had an open door to all immigrants. Prior to the rise of federal laws regulating immigration, state governments passed laws banning paupers, criminals, and those with diseases. Those laws were not well enforced, and it was not until the era of Ellis Island that the federal government nationalized and regularized immigration inspection.
It is another myth that debate about immigration divides us between noble liberal ideals that support immigration and ignoble, illiberal ideals that seek to restrict it. In reality, this debate highlights fundamental conflicts and contradictions within the American ideal. Our adherence to the virtues of democratic self-rule collides with the universalist strains of our national creed in which all men and women are created equal. If everyone is equal, then how can the government sift through immigrants and decide who may or may not enter the country? But if we are a representative democracy, then should our immigration laws not reflect the popular will?
To take the belief in the universalist creed to its logical end means to deny the relevance or justice of borders and boundaries, which are by definition designed to exclude. American sovereignty, under which the nation secures our freedoms, liberties, and democracy, sits uneasily with the notion of the United States as a refuge for the world’s poor and oppressed. Similarly, the United States has increasingly sought to erase invidious forms of discrimination in its laws, but discrimination is at the heart of any immigration policy. How can these beliefs be reconciled?
As Barbara Jordan, the chair of the U.S. Commission on Immigration Reform, put it in 1995, “immigration to the United States should be understood as a privilege, not a right,” and has been so held for most of our history. But as Jordan’s own life as a female, lesbian, AfricanAmerican politician demonstrates, the late twentieth century witnessed the legal and social explosion of a rights revolution that has expanded liberties to women, minorities, and homosexuals. The logical next step was an expansion of rights not just to immigrants legally residing in the country, but also to those who seek entry into the country and who traditionally have possessed fewer constitutional rights.
Much of the discussion of expanding rights has been rooted in the human rights revolution that followed World War II. Universalist notions of human rights and a greater emphasis on international law strike at the heart of the nation-state. There is a contradiction in one of the bedrock documents of international law—the 1948 Universal Declaration of Human Rights. It grants all human beings the right to asylum in other countries, the right to flee persecution, and the right to change their nationality if they please. However, the document does not say that nations have the obligation to accept such refugees and grant them entry and citizenship. It is an unenforceable one-way right. The authors of the Universal Declaration created these rights, but in their silence upheld the sovereignty of nation-states.
As Americans, we believe that all individuals are created equal and that this is a democracy where the people are allowed a voice in the writing of their country’s laws. We believe in the sovereignty of the United States and the sanctity of borders, but we recognize the moral obligation and historical legacy of this country as a sanctuary for those who no longer can abide the conditions in their homeland. That we believe all of these things—often at the same time—comes out most starkly when we talk about immigration. It is this confusion and intellectual schizophrenia that has helped muddle how we think and talk about immigration.
To make matters more complicated, many recent social, economic, political, and ideological trends are helping to weaken the idea of national sovereignty. We live in an era of rapid globalization, which has diluted the idea of national borders. Money, goods, and jobs flow back and forth ac
ross borders with little regulation in a world of increasing free trade.
As migrants continually cross borders, ideas of transnationalism are taking root and challenging notions of sovereignty. In an era with relatively easy access to airplanes, telephones, and satellite television, immigrants are able to stay connected with their homelands in ways unimaginable in earlier years. Combine these technological innovations with the ideological ascendancy of multiculturalism over assimilation, and you get the realization of an age of transnationalism whose outlines Randolph Bourne could only have sketched in 1916.
The plenary power doctrine, which has dominated immigration law since the late nineteenth century, is slowly losing its hold. It gives Congress and the executive branch broad authority to regulate immigration with little interference from the courts. The practical result is that would-be immigrants seeking entry to the United States have fewer constitutional guarantees than citizens or nonnaturalized immigrants already in the country. Legal scholars and immigrant activists have been training their collective critical fire against the plenary power doctrine for years. Although never explicitly overturned by the courts, the government has been less and less able to shield the execution of immigration law from court challenges.
In a 2001 Supreme Court case dealing with the rights of a detained immigrant who had been ordered deported, Justice Antonin Scalia repeated words that were familiar for over a hundred years of immigration law. “Insofar as a claimed legal right to release into this country is concerned,” Scalia wrote, “an alien under final order of removal stands on an equal footing with an inadmissible alien at the threshold of entry: He has no such right.” But in 2001, Scalia’s defense of the plenary power doctrine was found in the dissent. He was correct to note that the majority of the Court refused to overturn the precedent of the Mezei decision, but instead chose to “obscure it in a legal fog.” In the twenty-first century, it appears that much of U.S. immigration law is mired in that same fog.
The terrorist attacks of September 11 and the war on terror have led to more questions about immigrant admissions and the rights of aliens. Could the United States pass new laws—and more strictly enforce the current ones—against immigrants from the Middle East, a form of ethnic and racial discrimination akin to the Chinese Exclusion Act? On the other side of the equation, the status of suspected terrorists detained by the U.S. military has brought about a legal debate as to the constitutional rights of noncitizens. None of these issues have been settled and the future will likely bring only more confusion and conflict over these laws.
In the early twenty-first century, few Americans are satisfied with the nation’s immigration law. Some Americans find that the law is broken and unenforced, that millions enter the country illegally and little is done. Others complain about the arcane regulations that govern much of immigration law, for instance, treating refugees from one country differently than those from another. They criticize an immigration law that can be so inflexible that it forces millions to enter the country surreptitiously.
Immigrants are faced with a bifurcated system. Those who seek to enter legally are often faced with a daunting bureaucratic challenge in dealing with an increasingly byzantine system. Those who enter illegally bypass the red tape, but live under the radar and outside the bounds of the national community. Many find the two-tiered society of legal and illegal immigrants troubling and un-American. Wherever you fall on the immigration spectrum, current American immigration law is bound to disappoint, frustrate, and anger.
If the regulation of immigration is somehow tied to the rise of the burgeoning federal government, then our contemporary attitudes toward that government are not helping. Many of those who wish stricter controls and regulation of immigrants are often on the political right and are often the same people who call for limited government intervention in the marketplace. Conservative attacks on government make the call for stronger action against immigrants seem hollow.
Many who call for fewer restrictions on immigration and support open borders are on the political left, but they are often the same people who call for greater government involvement in the economy. They increasingly minimize the right of national sovereignty and dismiss nationalism as an outmoded and reactionary ideal, yet they wish to galvanize the nation for universal health care and other welfare-state programs. They claim to be concerned about rising income inequality, but are relatively uninterested in the idea that cheap immigrant labor keeps wages down for foreign- and native-born alike. These liberals support federal action everywhere but immigration, where they turn as laissez-faire as the editorial page of the Wall Street Journal.
To make matters even more confusing, labor unions, which used to be counted among the most ardent supporters of immigration restriction because of their genuine concerns for the effects of cheap labor on wages, have by the dawn of the twenty-first century become supporters of a laissez-faire approach to immigration. This has more to do with the increasingly weak position of unions in this country and the unions’ belief that their survival hinges upon support from foreignborn workers in the service economy.
The battle over the status of immigrants in a globalized world where borders are increasingly fuzzy will only grow more heated. Americans are in for a debate that might prove itself even more contentious than the one fought over Ellis Island. It will involve not only the question of American identity but also the relevance of America as a nation. Back in 1908, Henry Cabot Lodge put forth the primacy of national sovereignty when he said: “No one has a right to come into the United States, or become part of its citizenship, except by permission of the people of the United States.” Americans are still trying to come to grips with the implications of this idea some one hundred years later.
Can modern Americans learn any lessons from the history of Ellis Island? Historians should be wary of writing history that provides a “usable past.” Studying Ellis Island’s history provides little ammunition for those who wish either stricter or more lenient immigration laws. Studying this history should lead us neither to the elevation nor the condemnation of Ellis Island immigrants for their successes. History rarely provides neat lessons that can be utilized for present political purposes. If history teaches anything, it is that the past was filled with imperfect people who made imperfect decisions in dealing with an imperfect world. In this, they are very much like ourselves.
Even though very little of what was done at Ellis Island could be replicated today, its history can shed some light on our own times. The dustbin of history is littered with the now-discredited warnings of anti-immigrant writers like Francis Walker, Prescott Hall, and William Williams. Their fears about the quality of immigrants passing through Ellis Island now appear unfounded and mean-spirited. Not only did the United States absorb this wave of immigrants, it thrived in the twentieth century in part due to their contributions. We should be aware of similar fears about the supposed poor quality of today’s immigrants and not make the same mistakes of that bygone era.
That is not to say that the problems of today are exactly comparable to those of the Ellis Island era. History does not simply repeat itself in an endless loop. However, the history of Ellis Island should remind us that the problems that the United States is dealing with today are not unique and the questions Americans are asking themselves today are very similar to the ones that bedeviled those who came before us.
During the Ellis Island years, most Americans sought a balance between a completely open door to immigrants and a completely closed door. As modern-day Americans seek ways to deal with immigration, they too will have to find their own balance between the competing ideals of universalism versus national sovereignty, a policy of nondiscrimination versus democratic self-rule, and feelings of generosity versus pragmatism.
Most Americans today believe they live in a great country and understand why people from around the world want to live here. The idea of America as a nation of immigrants is a powerful image that rings true for many across the
political spectrum. Yet many of those same Americans are also a little anxious that their country will somehow change in a fundamental way because of mass immigration; they worry that new immigrants are a little too different and that assimilation is not occurring fast enough. Many Americans believe this even if these are the same arguments that were used against their immigrant forebears.
Keeping in mind these deeply conflicted ideas about immigration, modern Americans must find their own compromise, one that takes into account the fears and concerns—legitimate or not—of nativeborn Americans, while respecting the rights and humanity of those who arrive at our borders. The United States cannot open its doors to the entire world, but it cannot close its borders either. A successful immigration policy will keep the gates open to continue our long history of welcoming strangers who in turn help build this unfinished nation, while reassuring native-born Americans that the laws are being enforced and social dislocations that arise from immigration are minimized.
If Americans are not reassured that immigration is taking place in a legal and orderly manner that is beneficial to the economic well-being, social cohesion, and national security of the nation, then the entire ideal of immigration is at risk. That elusive balance is what Americans have to debate.
Before the rise of national quotas in the 1920s, the debates of the Ellis Island era—in which restrictionists supported some kind of immigration and their opponents favored some kind of restriction of undesirable immigrants—tried to find that balance. We can see that same dynamic playing out in our own time. Legal scholar Peter Schuck, a pro-immigrant liberal, admits that, “the tension between liberalism’s universal aspirations and our need as a society to achieve the degree of solidarity that effective activist government requires must be resolved at some level of exclusion.” On the other side, restrictionist conservative Mark Krikorian supports a “pro-immigrant policy of low immigration, one that admits fewer immigrants but extends a warmer welcome to those who are admitted.” Where to draw that line of exclusion? The devil, of course, is in the details.
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