“What part of illegal don’t you understand?”
This question—usually launched by immigration restrictionists and aimed at immigration advocates—is a good one. The United States considers itself a country of laws, and letting people off the hook formajor legal transgressions isn’t (officially) tolerated or popular.
But in assessing the status of illegal immigrants and the penalties they deserve for unlawful action, it’s helpful to consider the severity of their transgressions. What should the penalty be for crossing the border unlawfully in order to sustain your family?
Furthermore, one needs to consider that laws change. Immigrants’ reasons for leaving home and traveling to the United States have remained remarkably constant. End-of-the-world hysteria opposing immigration is also old. What has changed most is immigration law and how we classify newcomers.
The earliest European immigrants to North America—mostly English arriving in Virginia and New England during the early 1600s—were considered settlers in an open continent. Immigration was encouraged and restrictions about who could migrate were minimal.
In a reversal of the contemporary dynamic, these early European colonial immigrants excluded the native culture from the incipient social order and defined the colonies on their own terms, largely as the domain of English Anglo-Saxon Protestant immigrants. Restrictionists have mythologized these early immigrants and contrasted them with later waves of less desirable newcomers. But the composition of the early settlers would have horrified today’s anti-immigrant activists.
Researchers estimate that England sent 50,000 convicts to America in the 18th century and a smaller number in the 17th century. Between half and two-thirds of all early immigrants to America were indentured servants. The earliest immigrants from northwest Europe included few high-born. Most were uneducated agricultural laborers. In spite of this, they were encouraged by the British government to travel to America to labor in the South’s growing plantation economy.
Even in New England, where English immigrants typically possessed more agricultural and artisanal skills, most were defined as “ordinary workmen with moderate to low social status.” Although higher socioeconomic status migrants followed later in the 17th century, the majority of immigrants continued to be drawn from the lower social classes.
In the post-Civil War era, new and large streams of immigrants began arriving from southern and eastern Europe. The Slavs, Italians, and Jews who arrived in the United States by the millions were seen as an existential threat to the country’s Anglo-Saxon Protestant core. Groups such as the Immigration Restriction League sought to reduce immigration to prevent those deemed “undesirable … or injurious to our national character.”
Today these groups are celebrated by anti-immigration activists as “model” immigrants who followed the rules in arriving in the United States legally, unlike Latin American border-jumpers. But at the time these immigrants were portrayed as Europe’s trash being dumped on America’s shores. Public depictions of immigrants as rats and snakes were not uncommon. Immigrants were seen as harbingers of organized crime and radical political ideologies.
But even as fear of immigration grew, legal restrictions against the entry of Europeans were minimal, even for the poor. Ellis Island immigrants were so successful at adhering to U.S. immigration law largely because it barely existed. Of the 12 million immigrants who passed through Ellis Island, only 2 percent were denied entry to the United States. Upon arrival, the vast majority of immigrants — most of them poor and uneducated — spent several hours at Ellis Island before they were legally admitted to America.
The legality threshold for 19th- and 18th-century European immigrants is incomparable to the gauntlet of restrictions facing contemporary immigrants. The immigration bureaucracy has increased so that today’s immigrants—perhaps more educated and skilled than Europeans arriving a century ago—face unprecedented barriers. It can take years for a immigrant with family already in the United States to gain legal entry.
So while restrictionists state “the law is the law,” the fact is that the laws facing newcomers have changed radically. The law turns immigrants into illegal aliens and aliens into national pioneers. If we were sticking with Ellis Island Rules, most Mexican immigrants would stop at the border for a few hours before they were permitted make their way in America with the government’s stamp of approval.
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