We Americans view ourselves as having a special place in the world. We're the lotus growing out of the European mud.
Our Declaration of Independence, drafted by Thomas Jefferson in 1776 to explain why King George III had to go, was a remarkable document in a long history of forgettable documents because it said prominently for the first time in inspiring language that caught the spirit of a time and place we like to think we can emulate when it said "We hold these truths to be self-evident that all men are created Equal."
We have the words "Equal justice under law" carved in stone on our central federal courthouse, the one built in 1935 that houses the United States Supreme Court in Washington, D.C.
It's taken a civil war and a revamp of the Constitution, more in line with the vision expressed by Pres. Abraham Lincoln at Gettysburg when he said that government was created of the people, for the people, and by the people.
Jefferson glorified the people but his words were ignored until Lincoln put the people back on top in a complex world where many forces combine to keep people down.
Samuel Langhorne Clemens, a Southerner from Hannibal, Missouri, by birth, skedaddled to the goldfields of California when he was asked to serve the South in the rebellion. Although a Southerner he was more truly an American. From America he did not skedaddle. That's his word, meaning to vamoose. He got out of Dodge, but came back after the war.
In the meantime, he'd taken his hand to writing. With great issues such as slavery, Civil War, and what kind of nation we should be, and with people like Abraham Lincoln pointing the way, Clemens, writing as Mark Twain, found that he had something to contribute to the discussion in his writing.
One book he wrote, The Adventures of Huckleberry Finn, is about an American boy, Huckleberry Finn, who is something like a lot of American boys, a free spirit who thinks what he wants, decides for himself, and does what he likes. Sort of a Conlawprof in the making. Along the way he gets into a lot of trouble. One of Huck's problems is that he, a white southern boy during the time of slavery, has grown up with a black slave named Jim who is running away.
Huck and Jim find themselves floating on a raft down the broad and mighty Mississippi River, Huck for the fun of it and Jim fleeing pursuers. Jim hopes to reunite with his wife and children. When the bounty hunters coming for Jim appear out of the fog on the river, they call out to Huck, asking whether he's seen Jim, the slave.
Huck, the good ol' Southern Boy was suddenly presented with a choice. If he told the truth, Jim would be captured by slavers and returned to the plantation, if not killed. He'd never see his family again. But if Huck lied, he'd be breaking the law. He'd be breaking the southern social, moral, and legal code, the very thing that held the South together.
Oh, what to do?!
Poor Huck.
Poor Jim.
Poor slavers, who were only trying to reclaim some guy's property, a guy who hadn't done any harm to Huck at all.
What would you have done?
You'd have turned in Jim, of course, because you're a law student trained to uphold the rule of law, and would have felt better for doing your civic duty, right?
Well, maybe that's not a fair question, or answer. Why should I attribute lack of moral courage to a reader who may never have been put on such a spot, such as Huck and Jim's raft. Jim, after all, was hardly even a person, according to the views of many living on the safe side of the law in those days in America.
Huck, as is well known, refuses to turn in Jim. Huck tells the lie that spares Jim and the slave catchers float off to look elsewhere, fruitlessly.
"All right, I'll go to Hell," thinks Huck, in a remark that defines a big part of what it means to be a true American. Huck's morality was more American than South. He overcame his moral, cultural, social, and legal limits simply by refusing to turn in Nigger Jim, as he was called, exemplifying the supposed lack of humanity that Huck was unable to ignore.
Well, that was in the time of slavery and has no relevance to today.
Okay, that IS over a hundred years ago and might just as well have been in the time of Hannibal.
How about Amsterdam, the Netherlands, after that small country was overrun by Hitler, and the Jewish people being rounded up or hidden. Would you have hidden a Jew? Too risky? Violate the law? My hope is that you and I would lie to spare another person, law or no law.
I hope Justice Scalia would lie his ass off, and Chief Justice Rehnquist, as well as Stevens, Breyer, Ginsburg, and the rest, law or no law. Sometimes you have to decide first and justify the decision later, like Huck.
Over twenty years ago I included immigration law in my practice and volunteered a morning a week interviewing prisoners in the jail at the Immigration and Naturalizaton Service building at 630 Sansome Street, San Francisco, California, U.S.A. These would be Mexican prisoners, rounded up on farms near Fresno or wherever. A young man, his wife, and two kids, were typical customers. They had no papers. There was no legal recourse. They were being shipped home, forthwith, after a perfunctory hearing before an immigration judge. If they hadn't committed some other wrong than jumping the border, you could request, and usually receive, the benefit of voluntary departure. The immigrant still went home, but without the legal stigma of having been deported.
This Mexican father had brought his family here, up north, because there was no job in Mexico. They'd starve.
My father was born in the U.S. We never had to worry about being deported back to some ancestral homeland(s) (because there was more than one, none very good).
Sometimes these Mexicans, when they didn't jump the border, lied to get into the U.S. Oh, this was very bad. It was wrong. It violated page after page of legal gobbledegook designed to protect the processes of the U.S. government in all its majesty. Thwarting an investigation, cutting off lines of inquiry, preventing the United States of America from knowing the alien's real circumstances, were some of the legal and moral wrongs that these free customers had committed.
In looking at the man with the wide-brimmed straw hat, his wife, and two kids, I asked myself whether, had my father been born in Mexico, say, instead of Staten Island, N.Y., whether he would have lied to get Mom, me, and my two sisters into this country so we could eat and live.
I certainly hoped he would have.
I have no doubt that he would.
StatNislandahs are made of stern stuff. We know, as most Americans do, that some laws are made to be broken.
We reserve to ourselves which ones to break, just as my wife, a devout American Catholic, knows when to overrule the pope, but only on the important things.
We Americans, it seems, reserve to ourselves, the right to invoke a higher law whenever the man-made variety proves lacking in justice and humanity, just like Huck. I guess this is what it means to have absorbed an American sensibililty about law and justice.
What prompts these reflections is an article by Nina Bernstein in today's New York Times (5/05/05, El Cinco de Mayo) entitled "Routine License Check Can Mean Jail and Deportation." A picture of a Guatemalan couple appears, along with their two young daughters.
Jorge, the dad, is in jail. He's here illegally and got stopped by a cop who ran his license and found out he was the subject of an order of deportation. Jorge is going back. He is SO illegal here. He's today's Nigger Jim, and he has been caught dead-to-rights. All the king's horses and all the king's men will not be able to put Jorge back together again with his family, not in this country.
Jorge is 42 and has been living in the U.S. under a phony I.D. for the past 13 years. His daughters, Raquel, 6, and Daniela, 9, have been born, raised, and schooled in the U.S. They are Americans, citizens of the U.S. by virtue of birth here, under Amendment 14, U.S. Constitution.
However, their father is in jail for the civil crime of ignoring an order of deportation. Given a choice, Jorge apparently decided that this was one law he couldn't afford not to ignore. The higher law he chose to follow was to feed his family, which he did for thirteen years until his time ran out.
Jorge is now in deportation proceedings again, in custody, and no longer working as a cook to support his family.
Jorge is your father and mine. Those kids are you. This country, with all its laws, is ours.
Will you turn in Nigger Jim?
Will you turn in Anne Frank?
Will you turn in Jorge Medina?
Congress is considering legislation establishing a national system of drivers license requirements which includes proof of legal residence in the United States. Soon we will be able to round up and deport thousands and thousands of Jorge Medinas. Anne Frank will have no chance. Nigger Jim is dead.
All we have to do is to make it easer to round them up with a national system of registration such as with drivers licenses. How is this different than a license to buy food? This is actually a wonderful idea. We could insure that there would be almost no illegal immigration in this country if only we required a license to purchase food in the Safeway or Wal-Mart. To shop there, we could have a club, with a red card, that keeps track of who buys what, how much, and where. If someone suddenly started buying rice and beans by the heavy bagful, they could be investigated to see whether they were feeding a family illegally, and sent home. The forces of law and order would prevail, and we Americans could continue to be exceptional in the world, as we are, of course.
Over the weekend I met up with friends I hadn't seen in decades. One was a swift boat commander in America's brown water navy in Vietnam, where guys on shore would shoot at him with some frequency. Bill had 50-caliber machine guns on his boat, and he would have occasion to order his men to shoot back.
But something that Bill said has stuck with me. These 50-caliber rounds are this big, showing me a large section of a forefinger, Bill said. They have an effective range of so-many thousand yards and a few thousand more beyond that if anyone is in the way, he explained.
Sometimes Bill and his boat would be shot at by a guy on shore, a VC, but Bill would order his men NOT to return fire.
Why would any American commander order his men not to shoot back at an enemy who was firing at them, I wondered. Bill was a very hairy guy. I grew up with him. You would never want to take a shot at Bill.
Bill explained that the enemy was firing from the reeds along the flat shore. A 50-caliber round, fired low enough to make a difference, would fly perilously close to the surface of the bay. Rounds tended to ricochet both off the water and the flat grassy shore land and keep going for a mile.
"I wasn't going to order my men to shoot at some asshole who was firing at us when there was a village of people right behind him," Bill explained.
Bill would have been perfectly in his rights to shoot at an enemy shooting at him, I suppose, but standing behind the enemy was a village of more or less innocent people, grandparents, women, children, and babies who were not shooting at Bill.
Bill would have protected Nigger Jim, and Anne Frank, and Jorge.
"I don't care what any damn law says," is what Bill would've said.
Bill is an American. He has a sense of right and wrong that I would rather trust with my life than some of the other sensibilities I see around me.
This is what it means to be an American, that is when we think of ourselves in the best sense. You won't find this in a law book. Almost by definition you have to look for this outside of the law books,
We don't want to act like the Gestapo, rounding up the Jews, or the slaves, or all the illegal immigrants. Because behind some of those illegal immigrants stands a village of wives, children, and grandparents who aren't shooting at us.
Congress is aiming at Bin Laden and his airplane hijackers who fly into the Trade Center, the Pentagon and the White House, but hitting Jorge, Jose, and Maria with those 50 caliber rounds in the process.
Good for Congress.
The rule of law will be upheld.
You have relatiffs in ziss country?
Show me your papers.
Vere iss your yellow star?
Achtung!
Perhaps Congress could think of a more constructive approach to dealing with immigration than sending out rafts of slave-catchers.
After all, we do need someone to do the hard labor of this country while the rest of us sit at keyboards.