This dual system was reproduced both domestically and internationally, and race played a big role in it. Legal systems were created to justify and sustain it. Globally, the system was expressed through colonialism. Europeans colonized people of color around the world and benefited from their forced labor and their resources. In the United States, slavery played a big role in sustaining a dual labor system, where whites could move up, but blacks could not.
The United States took some colonies, too, at the end of the nineteenth century, like the Philippines, Cuba, and Puerto Rico. But US companies and citizens also benefited from the dual labor system when American companies like United Fruit established plantations in Central America and produced bananas using cheap labor there. They benefited when Brazilian slaveholders or German coffee planters in Guatemala used forced labor in those countries to supply cheap coffee for US markets.
Mexico played a big role in the dual labor market in the United States, both domestically and internationally. US mining companies operated in both countries from the late 1800s, and in both, they employed an explicit dual wage system. Mexicans received a lower, “Mexican” wage, while white US citizens received a so-called gold or US wage.5
Inside the United States, Mexicans were welcomed as migrant workers as American investment in the southwest grew after the territory was taken from Mexico in 1848 and 1853. A reliance on Mexican workers who contribute their labor to US economic enterprises—but are denied access to the benefits that US law affords its citizens—has underpinned the economy for over a century. Over the course of time, different legal and structural mechanisms have been used to maintain this system. Early on, it was done by legally distinguishing immigrants from workers. Immigrants were the Europeans who came to Ellis Island; workers were the Mexicans and Chinese who built the railroads and planted the food that sustained white settlement in the newly conquered west of the country. They were not expected to settle, stay, or become citizens. Citizenship, after all, was reserved for people defined as white until after the Civil War.
US immigration law thus treated Mexicans not as potential immigrants but as sojourners, temporary migrants who entered the country to work, rather than as immigrants who intended to stay. Anti-immigrant sentiment was directed against newly arrived Europeans, not against Mexicans. Anti-Mexican racism was also common, but it was directed against the supposed racial category of Mexicans rather than their status or citizenship.
Until 1924, the new border between the United States and Mexico was virtually unpoliced, and migration flowed openly. Mexicans were exempted from the immigration restrictions passed into law before 1965. Because they were not considered immigrants, Mexicans were also permanently deportable and were, in fact, singled out for mass deportations in the 1930s and 1950s. The nonimmigrant status of Mexican workers over time underlies the apparent paradox between the United States as a so-called country of immigrants and its xenophobia and restrictive immigration policies.
The creation of citizenship by birth through the Fourteenth Amendment was aimed at remedying the historic exclusion of African Americans. But it also created the apparent paradox that other nonwhites—like the Chinese—could become citizens through birth. Congress quickly moved to remedy this by restricting the entry of Chinese women in 1873 and all Chinese with the Chinese Exclusion Act in 1882. California’s farms then became even more dependent on Mexicans who, unlike the Chinese, could still be counted on to leave after the harvest rather than remain in the country and eventually become citizens.
In 1928, the Saturday Evening Post reported that there were some 136,000 farmers in California, 100,000 with farms of under 100 acres, and 83,000 farming fewer than 40 acres. These small farmers did not use hired labor during most of the year, but during the harvest, required some 10 to 50 additional workers. “Fluid, casual labor is for them a factor determining profits or ruin,” the Post explained.
“Mexican labor fits the requirements of the California farm as no other labor has done in the past. The Mexican can withstand the high temperatures of the Imperial and San Joaquin valleys. He is adapted to field conditions. He moves from one locality to another as the rotation of the seasonal crops progresses. He does heavy field work—particularly in the so-called ‘stoop crops’ and ‘knee crops’ of vegetable and cantaloupe production—which white labor refuses to do and is constitutionally unsuited to perform.” Mexican labor, the author estimated, comprised from 70 to 80 percent of “casual” or seasonal farm labor.6
This informal system of rotating labor prevailed until the 1940s, when it was supplemented by a government-run system that continued until the mid-1960s, the Bracero Program. The Bracero Program, which brought in over 4 million workers between 1942 and 1964, was terminated in the context of civil rights organizing that highlighted the discriminatory treatment of these guest workers. But the economic structures that relied on these workers didn’t disappear, and neither did the workers; they just returned to the old, informal system.
But, suddenly, the old system became illegal. The 1965 immigration law, which coincided with the termination of the Bracero Program, responded to the domestic and international movements for racial equality by getting rid of the racial and national quota system that had prevailed until then. It gave every country an equal quota. And it included the countries of the Western Hemisphere for the first time, considering Mexicans as potential immigrants rather than just exploitable workers.
Given the structural realities of Mexican migrant labor, treating Mexicans equally under the new law was actually a way to keep exploiting them, but now, by calling them “illegal.” From 1965 on, new laws made them more and more illegal and took more and more rights away from them.
Although it may seem contradictory, restrictive immigration laws actually contributed to a rise in both legal and “illegal” immigration. Two immigration scholars point to a synergy between the way the 1965 law privileged family members of US citizens and legal residents—in many cases, exempting them from the new quotas—and the barrage of laws after 1965 that progressively restricted the rights of noncitizens. It wasn’t the new quota that led to increased Mexican legal immigration after 1965, since the quota drastically reduced the number of Mexicans allowed to immigrate. Instead, it was the punitive aspects of that and subsequent laws that increased the numbers of those who decided to become immigrants, rather than sojourners.7 In other words, workers decided to stay, bring their families, and become immigrants because the earlier, seasonal pattern was becoming increasingly criminalized.
Some of the very organizations that were pushing to expand legal and social rights in the United States in the 1960s continued to draw a line at the border. The United Farm Workers union campaigned against “illegal” workers in the 1970s.8 California Rural Legal Assistance and the UFW supported the nation’s first employer sanctions law—making it illegal for employers to hire undocumented workers—in 1971.9 The first attempt to implement such sanctions at the national level was in 1973, at the initiative of the AFL-CIO and the NAACP.10 (By the 1990s, all of these organizations had changed their positions and opposed the employer sanctions that were created by the 1986 Immigration Reform and Control Act.) But employer sanctions turned out to be just one more way to maintain a large, exploitable pool of workers to fill agriculture’s most backbreaking jobs. The sanctions could be suspended, as they were after Hurricane Katrina, when federal contractors desperately needed migrant laborers to clean up and rebuild the city of New Orleans.
Agriculture continues to employ large numbers of undocumented workers in the twenty-first century, as farmers and their organizations throughout the United States have publicly acknowledged. Larry Wooten, the president of the North Carolina Farm Bureau, explained at an agricultural summit in Atlanta in 2012 that “agricultural employers who advertise jobs—as is required for those who are part of the federal guest worker program—for nearly two months get little to no response. ‘We have no choice,’ Wooten said. ‘We must use immigrants.
’”11
Since the 1980s, economic restructuring in the United States has created some huge new demands for extra-legal workers who will contribute to the economy for low wages and few benefits. Many undocumented people today work at jobs that have been in-sourced. While most of us are familiar with outsourcing—when jobs, from manufacturing to call centers, are shifted overseas—in-sourcing is less well known. The phrase can refer to a company’s decision to carry out internally those tasks that were previously contracted out, or it can mean that a company brings back a job that had been outsourced abroad. Here, though, I’m referring to a particular kind of in-sourcing: when a company closes down an operation in order to move it somewhere else inside the United States where it will have access to cheaper (often immigrant) workers, lower taxes, fewer environmental or health and safety regulations, or other financial incentives.
Almost everybody in the United States benefits from that labor in one way or another, because it underlies almost all of the goods and services we use. Whether they work in agriculture or in-sourced industries like meatpacking, or whether they work in landscaping, newspaper delivery, or cleanup after environmental disasters, the invisible labor of undocumented workers sustains the economy. Moreover, the presence of these migrants also serves to create more jobs. By living in the United States, by spending money and consuming goods and services themselves, they sustain the jobs of other workers.
The work that undocumented migrants do is essential to the functioning of the economy and to the comfort of citizens. The system is also, however, fundamentally unjust. By creating a necessarily subordinate workforce without legal status, we maintain a system of legalized inequality. It’s a domestic reproduction of a global system. The border is used to rationalize the system globally; it makes it seem right and natural that exploited workers in one place should produce cheap goods and services for consumers in another place. Illegality replicates the rationale domestically: it makes it seem right and natural that a legally marginalized group of workers should produce cheap goods and services for another group defined as legally superior.
STATUS, RACE, AND THE NEW JIM CROWS
At the same time that these big economic shifts were occurring, other political, social, and cultural changes were happening globally. After World War II, overt racism and white supremacy began to lose ground. Europe slowly and painfully let go of most of its colonies, and the number of independent countries proliferated. Almost all of the new independent countries were run by people of color. In the United States, civil rights movements fought to dismantle legalized discrimination. South Africa became an international pariah and finally ended apartheid.
In an important book published in 2010, though, Michelle Alexander argues that the racial caste system that United States has maintained since the days of slavery did not end with the passage of civil rights legislation in the 1950s and ’60s. Rather, a new system of legalized discrimination developed to replace the old Jim Crow system. The new system, she writes, is mass incarceration. Black people—and, as I argue here, Mexicans and other Latin Americans as well—were systematically criminalized. Although, on the surface, the system is color-blind, in fact, it targets people of color. But it works better in this supposedly postracial age, because it never uses race directly to discriminate. Instead, it criminalizes people of color and then discriminates on the basis of their criminal status.
Most citizens who rail against the undocumented insist that their opposition is based solely on technical, legal grounds: they oppose people who broke the law. But becoming undocumented is a highly racialized crime. Nationality itself has its origins in racial thinking and still bases itself on birth and origin in ways that echo racialism. The categories “Mexican” and “Latino” have been racialized in the United States, and the category of illegality is heavily associated with the category “Mexican,” whether this is understood as a nationality, an ethnicity, or a race. In 2011, 93 percent of federal immigration crimes were committed by noncitizens, and 89.3 percent of them were committed by Hispanics.12
Another way to look at the racialized nature of undocumentedness is to compare the criminalization of immigrants (especially Latino immigrants) in the post–civil rights era with the criminalization of blacks. Alexander argues that laws passed and implemented in the aftermath of the civil rights movement and legislation that accompanied it effectively countered the gains made in the 1950s and ’60s. “We have not ended racial caste in America,” she writes, “we have merely redesigned it.”13 The new system, mass incarceration, consists of “not only . . . the criminal justice system but also . . . the larger web of laws, rules, policies, and customs that control those labeled criminals both in and out of prison.” Once caught in the web, former prisoners are in it forever. They “enter a hidden underworld of legalized discrimination and permanent social exclusion. . . . The current system of control permanently locks a huge percentage of the African American community out of the mainstream society and economy.”14
Alexander focuses not only on incarceration itself, but on what happens after release. “Once [prisoners] are released, they are often denied the right to vote, excluded from juries, and relegated to a racially segregated and subordinated existence. . . . They are legally denied the ability to obtain employment, housing, and public benefits.”15 Possession of a felony conviction, then, replicates the very legal restrictions that used to be enforced by Jim Crow.
In the ideology and culture of exclusion, as well as in the laws and mechanics of its implementation, the arguments Alexander makes about African Americans have a parallel in the situation of immigrants. Like the African Americans that Alexander studies, large portions of the Latin American immigrant population have also been permanently criminalized and legally excluded. As with African Americans, undocumented immigrants are criminalized by a system that is superficially race-blind and defended on that basis.
Just as African Americans have become stigmatized in the post–civil rights era through criminalization, so have immigrants. Before, legal discrimination could be based explicitly on race. When race-based discrimination was outlawed, a new system emerged: turn people of color into criminals. Then you can discriminate against them because of their criminality, rather than because of their race. A new legitimacy for discrimination was thus born.16
Alexander meticulously details the ways in which criminal status follows black people into every area of life. With minor drug charges turned into felonies and defendants urged to plea bargain, huge numbers of black men become permanent “felons”:
When a defendant pleads guilty to a minor drug offense, nobody will likely tell him that he may be permanently forfeiting his right to vote as well as his right to serve on a jury. . . . He will also be told little or nothing about the parallel universe he is about to enter, one that promises a form of punishment that is often more difficult to bear than prison time: a lifetime of shame, contempt, scorn, and exclusion. In this hidden world, discrimination is perfectly legal. . . . Commentators liken the prison label to “the mark of Cain” and characterize the perpetual nature of the sanction as “internal exile.” Myriad laws, rules, and regulations operate to discriminate against ex-offenders and effectively prevent their reintegration into the mainstream society and economy. These restrictions amount to a form of “civic death” and send the unequivocal message that “they” are no longer part of “us.”17
Like convicted felons—mostly African Americans—the undocumented live in a strange world of internal exile or civic death. While physically present, they are legally excluded by an official status that has been ascribed to them. They can’t vote, serve on a jury, work, live in public housing, or receive public benefits. These exclusions apply equally to those, mostly blacks, with a criminal record and those, mostly Mexican, who are undocumented. Stigmatization and exclusion create a vicious circle of further stigmatization and exclusion.
“In the era of colorblindness,” Alexander writes, “it is no longer permi
ssible to hate blacks, but we can hate criminals.”18 The same argument could be made for Mexicans and criminalized immigrants. Anti-immigrant blogs, commentaries, and general opinion frequently emphasize the legalistic nature of their anti-immigrant sentiment: “They broke the law!” But it’s a law that, in design and in fact, is aimed at one, racially defined, sector of society.
Another aspect that links the criminalization of blacks and of Hispanics is the enormous rise in detention and what some have termed the “prison-industrial complex.”19 The Supreme Court commented in 2010 on the dramatic changes in federal immigration law over the previous ninety years. “While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation.” As criminal convictions of people of color for minor offenses have risen, so have the consequences of these convictions. Now, even legal permanent residents can be deported for minor convictions, well after the fact.20
PUTTING IT ALL TOGETHER
This new criminalization of African Americans and Latinos relates to their different places in a changing labor market. Alexander points out that earlier racial caste systems (slavery and Jim Crow) served to keep African Americans as an exploitable labor force. Now, the criminalization of African Americans has coincided with their removal from the labor force. With the collapse of the urban manufacturing sector, their labor was no longer necessary. They have become a surplus population, to be warehoused in the prison system.
Undocumented : How Immigration Became Illegal (9780807001684) Page 2