In the 1950's American children were taught that their ancestors had come to the USA “for religious liberty, to escape European wars, and for a better life.” These three reasons together, we were told, were the basis of the American Dream: America was the place where one could find moral freedom, freedom from political chaos, and as much wealth as one could earn. These reasons were quite real to our elementary school teachers; the great majority were women and were the first members of their families to earn college degrees in the US, and they, their parents, or grandparents had immigrated between the 1880’s and the 1930’s. The teachers indoctrinated us with the notion that these were the reasons far more effectively than they could have if they had been trained to do so. The teachers believed these were the reasons not because the textbooks and teachers’ colleges said so, but because their own families did. It was American to want these three things; America was supposed to be a good place because one could find them there. These were the three reasons to come to the US; these were the reasons to prefer the US to other countries.
These reasons seem forceful to me. I am a mixed-breed Caucasian. 300 years ago the DNA in my body was scattered around at least 9 different countries. Only in the USA could those genes have been assembled to become me. If I were not committed to the right to immigrate, I would be betraying not only my ancestors, but the conditions that made my own existence possible. The majority of US citizens share similar conditions with me, but most seem less conscious of the implications.
America immigration policies have changed drastically since World War II; the ground has eroded from under the rules that allowed all three reasons for coming to the country. The desire “for a better life” is now called an “economic motive” for immigration. The US government now presumes that to be an illegitimate motive, and to be the main motive for illegal immigration. Cause and effect have been reversed: first the government does not allow undocumented workers to work, then it claims they make no economic “contribution” but want to sponge up the wealth of the country. The government has claimed that the economic motive is illegitimate, so those who have it are presumed to have an illegal motive, and then to know that their motive is illegal. Presumed to be harboring a criminal motive, they are then accused of defrauding the government into allowing them to stay by pretending they have some other motive. The legal presumption that the desire for wealth, or even for sufficiency, is not a legitimate motive for immigration, has been fed back into the concept of the immigrant, converting an innocent impoverished person into a person knowingly harboring a secret illegal motive. This is the awesome power of law: the power of definition, the power to define even the internal conditions of persons, to deem them to know national law and to be attempting to evade or transgress it. The law recognizes no genuine internality: authority tells you who you are without regard for what you say, think, and feel, let alone perceive or imagine, and to stamp an irrevocable value judgment on you without any actual examination. By the standard this power of definition creates, the vast majority of ancestors of US citizens would have been held to have come to the US illegally, with criminal intent. But the standard is not applied to present Americans; it is hypocritically applied only to newcomers. Those who have “a better life” treat others’ desire for it with contempt.
No one knows how many hundreds of millions or billions of people seek to immigrate for economic motives. But over 85% of the world’s people live below the world average income, and so are denied equal access to the world’s resources, a denial that did not exist in the hunting and gathering societies from which we all originally emerged before the rise of “civilization,” a denial that none of the remaining 15%—probably like yourself—nearly all of them in the rich countries, would tolerate personally, but which they hypocritically deny the vast majority.
For myself, I have ancestors who seem to have left Ireland during the potato famine of 1848. They left because they knew they could die of starvation in Ireland; their friends and relatives had. I only exist because the US allowed them to enter. But rich Americans have changed the country’s policies because they would rather keep the impoverished at a distance, in poor countries, where they can exploit them more easily and profitably by destroying all barriers to the mobility of finance capital while keeping workers imprisoned behind national borders. A Bangladeshi worker can be paid 41 cents to sew a shirt that sells in the US for $24.38; the importers get $17.50 pure profit and don’t want her coming to the US to horn in on their share.
America has not only changed, it has betrayed the reasons it always gave as its reasons for existence. Consider the second reason.
The desire “to escape wars” has been reduced to “political asylum.” Now, to claim that, one has to claim not that one’s country of origin is in a chaotic condition, but that one has good evidence that if one returns, particular people have particular motives to single one out to kill or torture. This was never required of immigrants to the US. Members of the Mafia may have been able to claim that if they returned to Sicily a particular person had a particular reason to kill them there, but of course they wouldn’t have made the claim because it would have been a tacit confession of illegal activity. But the claim that political asylum seekers are told they must make is tantamount to just such a claim. One has to prove that people with the power to kill one want to kill one, that they have a reason to want to, and that the reason and the power are still effectual. So one is claiming that one’s prospective murderers are either associated with the government or protected by it or that the government is powerless to control them. Hence one is claiming that one has grievously offended people associated with or protected by one’s government, or that the government is not functioning. If one is claiming one has grievously offended the government or people it protects, one is implying one’s own government regards one as a criminal, and is presuming that the US government will not infer that one’s government is right. So the US government has to be willing to vindicate one against the claims of one’s own government. If one is claiming that one’s own government is not functioning, the US government has to be willing to agree with one. In either case, one has to get the US government to take one’s side against the claims of one’s government. So the real issue is how many governments the US government wants to offend. The granting of political asylum is always an implicit accusation of another government: the receiving government is telling the other, “You have abused this person, and continue to do so without any legitimate reason, and we are on this person’s side against you.”
But people fleeing World War I did not need to claim they were individually targeted by individual people protected by a government with individual reasons for targeting them. No one thought they should have to make such a claim. Everyone knew that war caused chaos and that people suffered and died in it without any individual motivation. Before the American ascent to world domination in World War II, the US was supposed to be a refuge, a safe haven. In 1937, when the US Congress passed the Neutrality Act, polls showed that 95% of US citizens wanted no involvement in foreign wars no matter what alliances had been made. From that “Isolationist” position, the US government did not need to demand individual motives; it simply said in effect, “We know things are crazy over there, no wonder you want to come here.” It was on those terms our ancestors came. But now we hypocritically argue that to have a political motive to enter to the US, one has to be a conspicuous activist against a conspicuously vile government that the US government wants to call conspicuously vile. We even claim one has to know the individual motives of the people who want to kill one. It’s not enough to say, “Someone shot at me but killed my brother instead.” One has to say, “I know who shot at me, and I know the reason he did it, and I can prove it is a bad reason, and I can prove he will try to do it again and that the government won’t stop him because it’s a bad government that wants me dead even though I’m a good person, as I can prove.” That’s more proof than many a murder victim, speaking from beyond the grave, could give. By that standard, most of the people who have been killed in political violence could not have succeeded in a political asylum hearing. It is a standard for the luckiest of the lucky.
By the new standard for political asylum, one has to be a political hero who has opposed the government of a country the US government holds in contempt, and miraculously lived to tell the tale.
I would not have been an American by such a standard. I would not have existed. My mother’s grandfather came from a family of bakers in Bremerhaven. Bismarck was then drafting boys on their fifteenth birthdays. My great-grandfather’s parents sent each of their sixteen children to New York on their fourteenth birthdays to work and send money home to pay for the passage of the next child. By this conveyor belt system they brought all sixteen to a house on 212th Street in Manhattan, then the parents. Not one of them would have qualified for political asylum, but they certainly had political motives. Not one of them could have said, “This person will try to kill me if I return, and this is his reason.” He would have had to have said, “My family conspired to evade the draft.” To which the US government would now reply, “But it was a legally constituted government and such governments have the right to enforce their laws regarding military service, just as the US government does. You have a rather shady family background. Why didn’t you disobey your scofflaw parents, run away from home for a year, and join the army?” The US government is now on the side of all the governments. It orchestrates them.
The UN High Commissioner of Refugees now estimates that 19,783,100 people seek political asylum. That’s a bit less than one out of every three hundred people on earth. That they cannot be granted it means that, on the average, the governments of the world are claiming that to any group of 300 people, 1 more cannot be admitted even when it is clear that the reason they seek admission is that the nations of the world have failed in the role the pledged themselves to in the UN, to prevent war. The majority of these refugees, moreover, come from countries that have been disrupted by the actions of the major powers, particularly the US and UK. But those countries will not accept responsibility for their own actions. In 2001, 88,300 refugees applied to the UK for asylum; this was less than 0.5% of the world’s refugees. But the UK has 1% of the world’s population; if refugees were accepted equally, it would have to accept twice as many. Instead, the UK did the opposite, tightening its criteria so that by 2003 less than half as many, 43,000 applied, and it has inexorably tightened its criteria since then. So the message from the US and UK to the world is, “We assert the right to make war anywhere, in Cambodia, Afghanistan, Iraq, Angola, for instance, to sell weapons to anyone and fund any side we choose. When we make life in a country impossible, it’s the problem of the adjacent countries. Let them fix it. We don’t care what they do, leave people in refugee camps, herd them around any which way. Just don’t let them come to us.”
So much for the vitiation of two of the three traditional reasons to immigrate to the US. The third was religious liberty. The core of the desire for religious liberty is always the desire for moral liberty. This is visible if one asks, “When is one’s religious liberty infringed?” The answer is, “When one’s religion says it is moral to do something and immoral not to do it, but surrounding law or custom says the reverse.” Religious belief itself, as an internal condition, may be at issue for the individual, but it is never actually the issue politically, for one’s oppressors. It is always some act associated with belief that is at issue for them, and they contrive to put it at issue for oneself. Oppressors of religious belief contrive such acts: they tell the believer, “Spit on the Torah, shit on the cross, destroy your idol, burn your icon, eat pork, kill that cow, tell us your god is the devil, take off your turban before the judge, bow to the king, say there is no god.” Belief, say the Pragmatists, is the condition of readiness, in some situation, to act in one way rather than another in respect to something. If there is no conceivable action connected with a belief, there is no belief. Whatever metaphysics people claim to have, in political practice their eye for this principle is unerring. If there is a belief, there is always some potential test of the belief in willingness to perform some action, and that is the action that will be demanded. Hence typically one can claim one has lost one’s religious liberty when one can claim some blasphemy is required of one, for blasphemy is the performance of an act, whether by the saying of words or not, that one believes to be so profoundly immoral that performance of it cuts one off from one’s source of morality, that is, from a deity or a community of believers.
The interface between any non-state religion and the political is necessarily contentious; it is always a compromise, and one that can never be entirely stable. This is true because there is no such thing as a religion without some potential moral injunction; this follows from the nature of belief, that it is readiness to perform some action. If belief were not readiness to perform some action, there would be no potential for conflict between the state and any religion, for the state could require any action and find no resistance. If the state can do that with a religion, of course, the religion is a state religion, and its actual content is that the state is somehow holy. In that case, the moral content of the religion is simple: it is, “Obey the authorities,” with the rationale, “Obey them because you love them because they are good and god is guiding them and you know that.” But so long as the state does not have a state religion to which everyone belongs, the state and each religion contend for moral space because they both claim the right to define what must be done and what must not be done. If either of them cedes that right, it ceases to command respect; if the state cedes the right, it has proclaimed anarchy, while if a religion cedes it, it has proclaimed itself some kind of cultural event, a poetry reading, a philosophical debating society, or a kind of music club where one goes to hear Golden Oldies, those hymns of centuries past when people believed in something. The only kind of non-state religion that could co-exist with a state without conflict is a religion of amorality, the kind Jules Pfeiffer satirizes.
One can see the inherent instability of relations between religion and state in practice by comparing US law with Indian law. In India it is a crime to offend another person’s religious sensibilities. This principle has taken some time to develop; Bhimrao Ambedkar, the chairman of the drafting committee of the Indian Constitution, had mightily offended the sensibilities of Hindus by claiming that Ram and Sita were brother and sister, and so were incestuous, an inference he made from Egyptian archaeology and the anthropology of his day. The Shiv Sena, the right wing of the ruling Bharatiya Janata Party, burns all copies of volume 4 of Ambedkar’s Collected Works as fast as the government of Maharashtra can print them. The central government does nothing to prevent this because under current law, Ambedkar could have been charged with the crime of offending Hindu sensibilities, but the government knows that the Supreme Court is not going make an ex post facto ruling that the drafter of the Constitution was a criminal. Under US law, of course, Ambedkar would not only be free of such a charge, he would be vindicated, and the Shiv Sena would be penalized. But the new concept of “hate speech” that many want to use to combat racism in the US, has the same underlying assumption that Indian law has adopted, that the speaker is responsible for the offense the offended feel. Because religion and the state compete for the same moral space, radically different conceptions of what tolerance and intolerance are can always arise and are, in principle, eternally contestable. The relative burdens of proof, intentionality, and guilt can easily be shifted from one party to another; they are creatures of custom and compromise.
Just before his death in 1957, Ambedkar inspired a conversion of a half million Dalits to Buddhism, a religion upper caste Hindus, primarily for its derogation of the caste system, had driven out of India. Ambedkar did this at a moment in Indian history full of idealistic hopes for a new secular state and an end to the vicious religious bigotry that had killed a million people during the Partition. 50 years later these hopes again face a crisis. Many Indians with Ambedkar’s beliefs now feel they might have to go underground or to leave the country.
How would Indian Buddhists fare if they tried to emigrate to the US for religious freedom? First, most are Dalits, along with Adivasis (tribal people), the most impoverished quarter of the Indian citizenry. US INS officers would reflexively claim their motives were economic. In practice, 99% of them could never receive a visa in the first place—and could not afford the transportation to come, even if they tried to come illegally. To get a visa to the US for a short stay, as tourists, they have to show their bank statements and income tax returns and effectively prove that they will be compelled to return to India to attend to business affairs that will suffer without them. They must also show that they have sponsors in the US who want to receive them, and who have enough money in their bank accounts and on their income tax statements to support them, to pay their medical bills, and to pay return air fare. To come as immigrants not married to US citizens, they have to either have an employer argue that he needs them because no American can do the work they can do or have to argue for themselves that they are businessmen with money to invest that will enlarge the US economy. So to get a visa when one has economic motives, one has to be rich already. It’s all right for rich people to have economic motives, but not for poor people to have them.
Second, they could not claim political asylum. To do that, they would have to be able to say, “I’m a Dalit activist and am known to be. I have personally offended members of the Shiv Sena and they have tried to kill me. They have killed people I know. I have protested but the government protects them. If I return, they will kill me because they believe I may succeed somehow in endangering them.” How many politically oppressed people can make such a claim? One in a thousand.
So can they claim religious oppression? They’re Buddhists in a Hindu country moving rapidly to the right, moved by a hyperactive Hindu minority who want Hinduism to become a state religion. Is this oppressive? Yes. Right wing Hindus massacre Dalits, Muslims, and Christians. Everyone knows this; it is daily news. But it is daily news in a country of a billion people. Is one individually targeted in these massacres? Usually not. One night a right-wing Hindu group goes into a village or a city neighborhood and slaughters people. They’re indiscriminate. They kill the people they find that night. Can one say, “They want to kill me because they know I am a Buddhist leader and I revere Ambedkar and believe Ram and Sita were sisters and say this to every Hindu I meet, and they think if they get rid of me personally the Buddhist movement will die down. Two other Buddhist leaders in my village have been killed and they said they were coming back to get me.” No. But is it real religious oppression? Yes. Just as real as the religious oppression that brought the Pilgrims to Plymouth in 1620.
By the standards the US government uses now, the Pilgrims and Puritans would have been told to stay in Britain. I have another ancestor, a Huguenot, whose last name I bear, who must have escaped France after the St. Bartholomew’s Day Massacre. Probably he escaped impoverished, and probably this somehow got him imprisoned in Britain, because it seems he was put on a prison ship to Georgia. All record of him is lost, probably obliterated in Sherman’s march to the sea, but in Georgia two shacks stand on a site that was once Duffee, Georgia, before the family moved west to Alabama and Mississippi, then moved north after the Civil War. Could he have reached the US now? No. The US isn’t receiving any prisoners. And it isn’t receiving people who leave countries merely because those countries have occasions like St. Bartholomew’s Day. They have to have “special” reasons or they have to come from countries that the US government deems to be oppressive, which means they have to come from countries the US government has targeted for contempt.
India is not such a country, so for starters cross off a sixth of the world’s people as ineligible. The US now finds it convenient to trade favors with Indian businessmen and to use India as a barrier against Pakistan and everything to the west and north of it. Since Indians therefore can’t claim to be oppressed, the only way for them to get into the US is to offer something US business wants. The best method is to imply to US immigration, “I know how to get something valuable out of India into the US. Here, see, I’m brilliant and have a good education, use my brain for American business, you can keep all the patents and India won’t compete with you. Or here, I’ve set up a business that will help you to buy up Indian goods, which you want to do because one dollar spent in India buys what $5.50 does in the US.” The US government likes this system, so it doesn’t want to offend the Indian government by claiming that it doesn’t deliver religious liberty, let alone political liberty or economic sufficiency. And the US has similar relationships with virtually all the nations it views as its “service economies,” that is with the nations that house the great majority of the world’s citizens.
The basic problem is in the concept of what being born in a country means. All modern constitutions state that it is citizenship, that sovereignty resides in the people, that citizens have joined voluntarily in a social compact for their own purposes. But basic international law does not state this. It is based on the Treaty of Westphalia, which holds people to be subjects of sovereigns and holds that sovereigns have the right to protect their subjects because their subjects are their property. The relationship between subject and sovereign is the same as that between slave and master: it is for that reason that slavery thrived so long in the Western world, because it was so easy for dominant groups to think of themselves as having property rights in their subordinates. After all, their kings did, and they were all supposed to be obedient to their kings for that reason, so why shouldn’t their wives, servants, employees, and slaves be obedient to them for the same reason? The subject-sovereign relationship is a remnant of feudalism; one owes loyalty to one’s lord, one is his liegeman because one lives on his property and is subject to his jurisdiction. One fights his wars, supports his manor, pleads one’s case to him, obeys him, and hopes he defends one from other marauding lords and their knights. The concept of citizenship, first popularized in relatively recent history by Rousseau in 1755, was awkwardly grafted on to the international law’s feudal concept of subjecthood after World War II. Like grafting a human face onto a crocodile.
International law since World War II has been skewered on this fundamental hypocrisy. On December 10, 1948, the representatives of the nations of the UN voted unanimously for the Universal Declaration of Human Rights, which embodied the concept of citizenship, but they voted knowing that procedurally anything that was done to enforce it would follow the established conventions of International Law, which were all structured on the subject-sovereign relationship. What has happened is that everyone talks the language of citizenship and human rights, but everyone lives by the concepts of subjects and sovereigns. Europeans are becoming bit blind to the contrast because in their law, the national is being assimilated to the EU, and European law is becoming hard law, while international human rights law remains “soft law” outside the EU. So many Europeans now tend to hallucinate international law everywhere, failing to distinguish clearly between the European human rights system, which has some efficacy, and the international human rights system, which is primarily a propaganda cover for the Bretton Woods Institutions. But better European moralism than American immoralism. Between the US and the poor countries, the contrasts are starkest. The US government says it believes in citizenship, but acts on the assumption that people are subjects of sovereigns. The contradictions of its treatment of modern immigration law follow from this basic hypocrisy about what a person is. The basic assumption is that US citizens are citizens, but all other people are subjects. The ultimate consequence of this is that US citizens are also finally treated as subjects.
See how it works out. A citizen is a person whose consent is necessary for him to be ruled; it is both his right and his duty to participate effectively in his government. Even the mission statement of the Internal Revenue Service states as much: it says US citizens give their taxes voluntarily—even though the tax code requires that money be taken out by the employer and makes it criminal to interfere with this. Why this hypocritical contradiction? The modern state needs this claim that citizenship is voluntary; that is its claim to legitimacy. International lawyers typically ridicule the concept of legitimacy; they know it has no place in international law; the operative concept is effective control of a territory, not legitimacy. But governments all perpetuate the myth. They have a very real reason for doing this, but it is a moral reason, and, in contrast to law, judges are prone to regard morality as mere morality because it does not have the force of law, and so, they think, cannot tell them what they should do. Modern states are all duplicitous with the concept of morality; they need it but they hate it, so they try to hide it whenever it is inconvenient and display it whenever it is advantageous.
The moral need for the assertion that citizenship is voluntary is that the state commands obedience to law, but in some situations it commands the reversal of the moral content to the law. In war, it is illegal for a soldier to do what it is illegal for him not to do in peacetime. It is his duty to murder. There is no religion that does not forbid murder, at least of one’s co-religionists. So long as states reserve their sovereign right to make war, they are reserving the right to compel citizens to murder. Because all religions claim this is immoral, the state needs to be able to trump that moral claim, and it can only do it by a moral claim of its own. The absolutism of religion compels the state to counter with an absolute moral claim. It does this by claiming that citizenship is voluntary.
In this conflict, religion, of course, can also be hypocritical, and it usually is. It finds some way to compromise on its claim. It invents an exception to accommodate the state. But the state is not usually hypocritical, it is essentially hypocritical. It could only stop itself from being hypocritical by giving up its claim to the right to make war. But that claim is the essence of sovereignty. A state that cannot make war is not independent of other states; it has no power ultimately capable of refusing to do what other states demand of it. For the modern state to maintain its right to make war it has to present itself as a voluntary organization composed to individual people who want to make war. Then it can claim is not making anyone violate their conscience, so it is a moral state.
No matter how one wants to equivocate about the concept of legitimacy, to say, for instance, that it is not a legal concept at all, but a moral one, and therefore somehow irrelevant to law, one cannot, by such equivocation, account for the fact that all governments are conscious of the need for legitimacy. They know that people demand that government be legitimate. Officials and politicians can scorn the people for this; privately they can try to explain it away as a childish demand uninformed by knowledge of how government works. They can tell themselves and each other that all that is meant by it is that they must be perceived to be legitimate, so that this issue is reduced to one of public relations. But it is a thorn in their side that cannot go away.
Government must be perceived to be legitimate because of its nature. It tells people what to do and what not to do. If its commands conflict with the opinions of citizens on any issue, it must find some way to trump the claims of the citizens. It can only do this in three basic ways: it can deny any legitimacy to the moral counter-claim; it can claim to incorporate the moral counter-claim in some way, or it can claim to have somehow already been incorporated by some prior moral claim. The first method constitutes a denial that the citizen has any case at all; the state just says it cannot hear such a claim, that it is beneath contempt. This is supposed to leave the citizen voiceless; she is supposed to think she just had a private fantasy. The second method recognizes the counter-claim, but subordinates it; it says, “Oh, yes, but that is an exception to the general rule. You’re misunderstanding something. Really you agree with us, and you’d understand that if you knew the law a little better.” The third method is moralistic: the state says, “Actually, it is precisely for that reason that we do what we do. You just don’t understand reality. We agree with you completely in principle, and we are doing all we can to make sure that your position is vindicated. But the situation being what it is, in order to vindicate you, we have to do the opposite of what you suggest. So help us out. Cooperate now and you’ll see that in the long run it will work out the way you think it is supposed to.”
The conceptual oppositions here are denial and incorporation, and they are orthogonally related. Incorporation has two contrary modes, the state’s incorporation of morality and the state’s claim to have been incorporated by morality. The US officials usually do the first: they claim that the state has already accounted for all the moral positions available, and has assigned them their proper places, and all one needs to do is to read through the relevant Supreme Court cases on the relevant issue to be satisfied that one’s claim has already been placed in its proper legal perspective. If one wants to rebel against this, one has to become a lawyer and work one’s way through the legal debates on the issue to try to get a new precedent established. A very few people try this, and many fewer succeed in some way; most people decide to go along with the system.
The contrary incorporative mode is the classical natural law position, the position that derives ultimately from feudal church-state relations, and, ultimately, from theocracy. The theocratic state claims to be an instrument of god. It says everything it does it does for a moral reason. Therefore, if one opposes it, one is either wicked or deluded. Modern states have tried desperately to escape from this earlier position, but it is always waiting in the wings to reassert itself: the Christian right, anti-abortionists, the Moral Majority, fundamentalists of all types, all want some increase in theocratic content of the state, and all believe in natural law of some sort.
Third, the state can deny a moral claim, in which case, on that point, the state is claiming no moral issue is involved, so it is tacitly claiming that issue is amoral, which is, of course, itself a position on moral claims. This tactic is most commonly used in criminal law: all moral counter-claims are simply overruled; all that matters is whether or not the accused performed the act alleged. Lawyers can get extremely technical about these matters, and many are inclined to the position that there is no moral issue in areas where law is so clearly defined that all that can sway a judgment are particular details of a fact pattern. Yet the claim that there is no moral content in such areas of law is generally misleading; it’s not that there is no moral content, but merely that moral debate is not allowed. Generally the reason it is not allowed is that the moral issue is taken to be so clear, so conclusive, and so entrenched that raising a moral issue is taken to be disingenuous quibbling. The court will not hear that the rapist or murderer believes that, in his case, rape or murder were indeed moral acts, that, for instance, he, David Berkowitz, was commanded to do them by that paragon of morality, his father, the black dog, Sam. The moral milieu makes everyone so certain that such an argument is impossible that everyone assumes that if Mr. Berkowitz says that, he is attempting to establish an insanity defense.
If one conceives of these three ways of handling moral claims as three of the four poles of a pair of orthogonal opposites, it is obvious why the fourth pole cannot exist in law. For the state cannot make the claim contrary to the denial claim, that is, it cannot deny that its own position is moral. It cannot say, “You are right, we are wrong,” because, if it does that, it must concede the argument and mend its ways. So the state always puts up it stiffest resistance when a citizen claims that state is immoral. The state will normally do virtually anything to be perceived to have won on such a point, including killing the person who makes the claim. This, of course, is what happened to Jesus, for that, Pilate was told, was the substance of his claim—that he was King of the Jews, which meant that he had a moral right to rule at a time when Rome ruled Jerusalem. For in Pilate’s understanding, when Jesus stood before him, Jesus was understood by everyone in the court to be asserting that he had the right to replace Pilate, and not only the right, but the duty. To the powerful, legitimacy is always a matter of perception, so when Jesus is asked, “Are you the King of the Jews?” and answers, “Men say it,” for Pilate, that answer is sufficient to convict him. Certainly Pilate does not believe that his own ability to rule Jerusalem depends on any belief of his own that he is its proper ruler; it depends on the belief of his Roman superiors, or his troops, and of the Jews’ perception that the Romans have effective control. So if “men” believe that Jesus is the legitimate ruler, that is, the Messiah, then Jesus is in mutiny against Rome whether Jesus believes it or not. He would have to refute the reported belief to be free of the charge. Silence is not enough for him. This is why he is condemned though Pilate sees no fault in him; the fault does not need to be in Jesus, beliefs about him suffice to make him a direct challenge to effective control. The point the gospel writers were making, that legal guilt and absolute moral innocence can coincide, and that we are therefore necessarily engaged in a perpetual moral struggle to check political institutions, and to improve them, has been lost on conventional Christians. Yet this is the core of the original Christian stance toward the state: the absolute conviction that the state can believe itself compelled to condemn the absolutely innocent, for that is implied by the nature of the state, as Jesus’ execution shows in its purest terms. It is a structural issue. When one claims, or even when it is claimed for one, that the state is morally wrong and one is morally right, whether one is wrong or right, one makes the claim that state officials believe makes the state unviable. That is the quintessence of the barbarity of government, for governments can only rule by relying on their perception of mass perception, and both are often misperception. This reliance cannot be erased from the nature of the state, so all one can do is to remain forever conscious of it, and conscientiously develop customary and institutional means to soften the state’s essential outrage against human dignity.
In the light of all this, we can now return to the position of the immigrant. The immigrant from a poor country can no longer enter a rich one “for a better life.” Instead, she is supposed to come bearing some offering of wealth. Nor can she come “to escape war” and political oppression; she must make out an individualized case showing how she has been singled out, and by whom, and why, and that it will persist. Nor can she come “for religious freedom.” She has to make out a case similar to the political asylum case. What underlies all three denials is the assumption that she is a subject of another sovereign state, and that, no matter how deprived of the means of support, how powerless politically, how despised socially she is, she should stay in the place where she was born. She must somehow make herself an exception.
But why does she need to make herself an exception? Because she is not regarded as a citizen. All the receiving countries, quite contrary to their public pronouncements since 1948, treat her as a foreign subject, not as a person whose consent is required to justify ruling her. She is not allowed to say, “I wanted to leave that country because it was unbearable. I could not tolerate the way things went there. I had no desire to support a government like that one. I didn’t want my taxes to be used to support my own oppression, and that of my friends and family. I didn’t want to spend my life scurrying around like a mouse to get out of the way of the police, because I thought those police were bad people who just wanted to hurt people. I had no desire to work in an economy like that one, where my labor was not valued and where there was no work I could do in which I was not mercilessly exploited. I had no desire to live among people who despised my beliefs and consistently tried to degrade me for them, who treated me contemptuously merely because I am the person I am. I wanted to come to your country because I mistakenly regarded your country as more moral than mine in all three respects. I think it is moral to allow people to be rewarded for their labor. I think it is moral to make, execute, and adjudicate laws consistent with the customs of the people, so that people do not feel perpetually trapped between their government and the people they love. I think it is moral to respect other people as moral beings, who have their own ways to judge what is right and wrong, and who have beliefs that satisfy them. I came to your country because I thought in your country I could live a more moral and complete life than I can live in my country. I did it because I am a sovereign person, and I have the right to choose to live in a polity that I think morally tolerable. I am sorry you disagree with me. I am sorry you do not treat me as a person who wants to become a citizen of your country. I would have given you my full consent, but you do not believe in your own country. You talk about citizenship and human rights, but you are a hypocrite. Really you believe we are all subjects, and that I have done something wrong in leaving my country, as if there were someone who owned me there merely because I was born there. You do not believe you have a better country to offer me, or you would welcome me to share in it and contribute to it. Instead, you worry about the relationship between your government and the government of the country I have left. You want to be sure that my former rulers are not offended by my leaving and by your acceptance of me. You worry about keeping what you have, as though I came as a thief instead of as a citizen, a worker, a creator, a friend, and a family member. I do not know why you are so full of self-hatred and suspicion, that you treat me in this way. But I do know that you do not know what citizenship is, and I do not even believe you are patriots of your own country, or you would be honored that foreigners like me wanted to join you.”
Throughout the world, citizenship is being destroyed by this hypocritical treatment of immigrants. What is needed is a right to moral asylum. It was moral asylum that the United States actually but unofficially offered until World War II. That was how its immigration policies were customarily understood; that was the message all Americans my age received in our public school classes. Now no country offers it. This is a horrendous loss to humanity and a disgrace for all nations.
I will speak personally. But let me explain why, despite everything I was taught, I think it sensible to do so. I was educated to the tune of the myth of objective expertise in social science. Objectivity makes some sense in hard science, but the social scientists and humanists use it to soak up some of the prestige hard scientists have because they can make themselves useful to the rich and powerful by building bridges and nuclear bombs. After you wade through the technicalities, the basic assumption of the social scientists turns out to be rather simple and holistic: you are supposed to have no interest in what you talk about, to convey the idea that it doesn’t matter to you at all, that you are above it or outside it, so that whatever happens to it or is done about it means nothing to you, cannot affect you in any way. That is supposed to make you credible. The question I asked was, “Then how come you’ve spent all this time finding out so much about this subject that you’re supposed to know more about it than any of the people who have a reason to want to know about it?” And the answer to that is supposed to be, “Because somebody knows you’re a smart guy and pays you a hefty sum to figure it out.” Which made me ask, “But why would anybody pay you unless he had a reason to be interested in it, and why wouldn’t your taking the money make you obligated to the guy with that reason?” To which the answer seemed to be, “Well, yes, it does, except the reason that guy is paying you is because everyone is supposed to think you don’t care about the money and aren’t grateful to him, because only if they think you’re not grateful to him will they think you’re objective, and he can’t get what he wants unless they think you’re objective, so he wants you to pretend you’re not doing it for money.” Which made me think, “I see, objectivity is the game of pretending to be a bad servant.”
Since objectivity for hire looked fishy to me, I thought about freelance objectivity. If nobody pays you to know what you know about, and you know more about something that doesn’t concern you than any of the people who are actually concerned about it, what are you then? The answer seemed pretty clear: you’re crazy. You’re spending all your time and money on something that doesn’t concern you, so your family feels you’re wasting your life—and their lives while you’re at it. But once you’ve considered money to be cause for bias, the only way to be objective and not be a slave was to be a selfish heir. You had to have a secure private income from someplace and not want to increase it or benefit anyone in particular with it, but instead to spend your life finding out about something that didn’t affect you. There I’d stumbled across the social origin of the idea: the supposedly truly objective were aristocrats, mainly British, whose inherited wealth sent them through Oxford or Cambridge, who didn’t want to earn money because they had plenty, and so spent their lives turning their hobbies into their claims to fame. But did that make them truly objective? Weren’t they still indebted to somebody? Yes: of course they were. They were indebted to their parents and grandparents, and to the British system that made them members of the leisure class. So being objective was being a member of the leisure class, which was good for its prestige, as if it didn’t have enough.
If you weren’t a member of the leisure class, and you found out a lot about something, what would you have reason to find out about? Something that concerned you in some way. Something you had a passion for, or some kind of interest in. Whatever the source of that interest or passion was, it could be used to discredit you: that made you subject to what logicians call ad hominem circumstantial arguments, which, however illogical they are, still ruin the image of objectivity. (You don’t have to think someone isn’t objective for a logical reason; a rhetorical reason serves perfectly well since the reason academics have always wanted to appear objective is for its rhetorical value.) If it was a passion, then the argument would go, “He just thinks that because he has a complex, that’s what all the neurotics with that complex thinks.” If it was an interest, it would go, “He just thinks that because he’s an immigrant, that’s what immigrants think.”
Unfortunately, I’m not an immigrant because I can’t find any place to immigrate into. I’m only an aspiring immigrant. So I can treat you to what some aspiring immigrants think.
So to the point. I am outraged at the governments of the world because I am in need of moral asylum myself, and so I identify with others who are. I have all three reasons for emigrating that I was taught all foreigners had for coming to America. But I am an American, so I have no America to go to.
My economic motive is that I went to law school because I wanted to be a poor people’s lawyer. But in 1995, the year I was admitted to the Bar, because he hypocritically did not believe that the poor were entitled to legal representation in civil matters, Bill Clinton cut a deal with the Republican Congress to vitiate the Legal Services Corporation, so the work I had trained for no longer existed.
My political motive is that I believe in non-violence, so it violates my conscience to pay for the US military, which acts as the enforcement arm of the G8’s extortion racket designed to keep goods flowing from the poor countries into the rich countries at the maximum cross-the-board discounts unequal currency exchange creates. In the 1980’s I tried withholding military tax, living below the taxable income, and giving more than a third of my income to charity. But I found there was no way to stop paying for the military without having no family, not practicing a profession, or lying. Rather than lie, I found myself losing my family and profession. This seemed not only self-destructive, but destructive of others. So I went to law school in the hope of getting a profession that might allow me to improve the government in some way, or to help people out from under it, tried to get a new family, earned as little as I could, paid the tax, and learned all I could about why we are in the position we’re in. I wrote a bibliography of the international law of peace and trained to be a Legal Services lawyer. When, in 1995, Clinton nixed that one, the compromise with my conscience I’d been trying for eight years collapsed: being a lawyer could no longer be beneficial enough to anyone who actually needed me for me to be willing to put in a substantial part of my work year so that the government could attack people in other countries. India had a lot of people in need of a poor people’s lawyer and, I thought, reason to respect non-violence. So I tried to make myself eligible for Indian citizenship.
The context of my inability to qualify for political asylum is that the leaders of all nations are so intimidated by the US and selectively bribed by its offers of aid packages and special privileges that not one UN representative would say what they all knew before the US and UK invaded Iraq, that both were violating the UN Charter and lying about their reasons for doing so. If none of them will back a crippled nation against an outright violation of international law, but will only quibble about the details, why should I believe that any of them has the gall to tell the US, “We are accepting this refugee from your country because you force him to pay to support your outrageous schemes and pretend that you represent him when you have never any followed any international policy to which he consents, and now your “Patriot Act” threatens to make his views indictable. You are bent on obliterating the very freedom of speech you tell all other countries is the foremost reason they should imitate you. We agree with this man, he has a right to be free of you.” What government will risk saying that after the US claimed in October, 2001, that it counted 69 countries as terrorist states or states that harbored terrorists, that it commanded them to mend their ways because “If you are not for us, you are against us”? Neutrality and non-alignment, the mainstays of Indian foreign policy until 1990, have disappeared. Bush, a true Texan, believes the world is perfectly divided between good guys and bad guys, so the Indian government isn’t going to side with a guy like me who says the US military is the enforcement arm of a profitable extortion racket.
This current elimination of all middle ground eliminates the only ground I have. My political position is like that of an island microstate watching global warming raise sea level to flood it out of existence. The technical details of political asylum are governed by international politics: every month they get stricter. I can’t claim that any of my relatives have been killed by the US government, that I’ve been shot at, that I know the names of people who want to kill or torture me, or that I know exactly why they would want to. All I can claim is that, though I believe the “Patriot Act” unconstitutional, it could be used to indict me, and I doubt that the Republican-packed Supreme Court that appointed Bush as president would concur with my views on constitutionality. In the current climate, I have no reason to believe that claim would be sufficient to persuade any government I needed political asylum. A government that took that stance would be telling the US government, “We think you should rescind the Patriot Act.” To which the Bush Administration could reply, “If you want to tell us what laws to have, you’re meddling in our sovereignty, and we’ll reciprocate by giving you a list of the laws we want you to change,” which, of course, the US already does on WTO issues.
I have the third classical motive to immigrate too. I seek religious freedom. I believe that no one has the right to tell another person what to believe. That is, I believe in both the right to have any religion and to be free of religion altogether. The reason this is not contentless is that I also have two beliefs about belief. First, I believe that beliefs on the order of religious belief, including the many forms of agnosticism and atheism, are also ethical beliefs. Second, I believe that what it is wrong to do oneself, it is also wrong to do through another: that is a legal principle. So if religious-order belief contains ethical belief, and one shares responsibility for the actions of the groups one belongs to and supports, consistent believers in anything bear responsibility for the actions of the governments, civil groups, and economic institutions to which they belong. That’s what I mean by citizenship. That the US government since World War II has followed foreign policies to which I cannot consent, and since 1981 even domestic policies to which I cannot consent, I experience as a violation of my conscience. I want to be free of the guilt I feel for paying taxes to a moral monstrosity. A person who does not believe that what his “representatives” do is supposed to represent him, and that what his taxes are spent on is empowered by him, is confessing to being not fully human, but a slave. And it is moral slavery that the biggest nations are coming to require of their residents as they progressively convert citizenship back into subjecthood.
There is no ontological difference among persons that divides them into those who can define morality for others and those who must conform to the definition. Yet this is exactly what the Bush Administration is asserting in acts like the “Patriot Act.” It is moral garbage.
Yet none of my motives qualifies as a reason to allow me to give up US citizenship to gain any other. Thinking that the land of Gandhi would understand my motives, for eight years I sought to become eligible for Indian citizenship. Then, in November 2003, the Indian Home Ministry told me, “You must leave India. You cannot ask why.” They cut me off from the family I have lived with and supported for six years. Why should the Home Ministry have been so outrageous? In the 1970’s Indira Gandhi ordered the US Peace Corps out of India because the CIA was using it to collect information. From that time Home Ministry officials developed special policies regarding US nationals; they were not to be presumed to be who they said they were. So one major motive for my deportation is what Chalmers Johnson has so beautifully recounted in Blowback; it’s an unintended consequence of CIA activity. Can I sue the US government for creating the conditions under which I could not live in India? Of course not. I’m supposed to blame it on the Indian government. Of course, the Indian government is hardly ideal for non-citizens: the Constitution gives us no due process rights, but only the right not to have the government kill or imprison us without a statable reason. But paranoia treatment of US citizens is blowback from the CIA. This is the problem with superpowers: like control-freak millionaire parents, you can’t get away from them. It’s not just their weapons and their spying equipment that follows everyone everywhere, it’s the false identity they impose on you by making their mark so deep in others’ minds that you can’t dissociate yourself from the stereotype they create for you. I want to give up my citizenship because I don’t want my friendships destroyed by my nationality. For most people on earth, there’s always a lingering suspicion that if you’re a US citizen, you have to be a prick. They’ve got a point.
Of course, a government can say people like me have a choice: we can give up our citizenship and make ourselves stateless persons. Every US schoolchild used to be made to read Edward Everett Hale’s story, “The Man without a Country.” Hale pictures him floating around on a prison ship where every mention of the US is cut out of every paper, and no one is permitted to mention the country to him, so that he grieves inconsolably for his loss. I can accept such that loss. But Hale is glorifying vengeance. His character isn’t actually stateless; he’s imprisoned by a state, a state that is using the legal fiction that he is outside US borders to deny him his civil rights, just as it uses that fiction now in Guantanamo Bay. Statelessness itself isn’t so bad, but it is when the US dominates the UN, intimidating other nations, and when all the nations together can’t cooperate to clean up the messes they’ve made of the lives of so many people. Under present circumstances, to make oneself stateless is to sacrifice substantial human rights all people are entitled to, such as the right to practice a profession. To pursue a principle to its conclusion I need to make myself a useless and dependent person? Why should I be denied the rights of citizenship anywhere just because I want to exercise my right as a citizen to renounce my original citizenship? If citizenship is supposed to be voluntary, then it must be a choice among viable options. I don’t want to renounce my citizenship because I think citizenship isn’t valuable, but because I think citizenship is valuable, but the government that claims me as its “citizen”—actually as its subject—has allowed me only the empty husk of citizenship. I can’t even get a properly elected president.
Because I have been unable to find a way to give up my US citizenship without becoming a stateless person, and the UK automatically gives 6-month visas to US citizens, I live in a Glasgow bedsit. I am not counted as an asylum seeker because there is no category of asylum for which I can apply. I seek moral asylum, but can find no country moral enough to admit that moral asylum is a viable category and that I have a case for it. So what can I do but write essays like this one? Law does not recognize the status I claim; I have fallen “between the cracks.”
I say my status is actual; the law is wrong in failing to recognize it. I am supposed to be qualified to know; I am a lawyer. I say, change the law to recognize my actual status. I seek moral asylum. Create the category of moral asylum for people who want to be liberated from immoral governments of their countries of origin, for people who come from “rogue states” that scoff at international law. But which states are they? Noam Chomsky’s argument is cogent: the US is a rogue state. It arrogates to itself the right to be the “world’s cop;” it asserts just what Augustus Caesar asserted 2000 years ago when he said he had established the “Pax Romana,” the right to make other countries give up their arms while one country kept overwhelming armaments. Just as Ovid and Cicero reported from the Roman provinces, “Augustus calls this peace. It is perpetual war,” honest reporters around the world make the same report. But honesty is not at issue; it is a political debate, and what counts in it practically is only how powerful the bearer of the bad reputation is. But very well, let the debate go on in earnest; see whether, if it is widespread enough, honesty can win out over political favoritism. But let the debate expand from fair and open ground not monopolized by the cowardly governments of the world, which collude with each other to verify each others’ lies in the United Nations—nations united in their politicians’ joint interest in controlling their citizens. The World Social Forum attempts to convene such debate. A structure may be forming, a United Peoples of the World, beneath the United Nations. Let it replace the United Nations, that publicity front for the US and the Bretton Woods Institutions, where governments presumptuously claim to be the sole representatives of their citizens while letting the G8 monopolize the world economy by purely plutocratic means, where government all they degrade their citizens into mere subjects powerless to have any effect on their economic systems, which are reserved for the benefit of investors. I do not believe I am alone in believing that moral asylum ought to exist and be granted. I believe hundreds of millions, if not billions of people, desire the same status I seek for myself. With Cinque, the African kidnapped onto the slave ship Amistad, speaking his first words of English in a Connecticut court in 1826, let us say, “Give us our free!”
The most prominent figures from 1650 to 1950 who together painstakingly assembled the concepts of human rights would find their stomachs turning if they saw us now: not just W.E.B. Dubois and Orwell, who foresaw it, but Spinoza, Voltaire, Rousseau, Hume, Smith, Swift, Godwin, Marx, Mill, and Russell, even Jefferson, Roscoe Pound, Hans Kelsen, and Eleanor Roosevelt. We are all degrading ourselves and each other back into mere subjects. And for what? For money. To secure maximum profits for investors by preventing “the natural flow of labor to the highest wage.” But, wrote Smith in 1776, without allowing that flow, there was no way that a market system could ever be beneficial to the vast majority of humanity. He was right. Witness the rapid increases in the Gini coefficients of nearly all nations as capital moves at ever greater speeds—now at 90 times the flow of goods—to the highest rate of return while humanity is held in the prisons of national borders. Immigration law itself, generally instituted only since 1914, has become a form of random mass murder just as lethal as weapons of mass destruction, but hidden from view by diffusion in refugee camps, hovels, and living rooms scattered all over the globe.
The media has created a paradox of public perception. At the same time that the media does what it can to serve rich governments and to mold perception in the interests of corporations, it nevertheless disseminates images of real people around the world. Each of us has our own knowledge of real people, and we read the images through that knowledge, so the effect the media moguls want is never quite what they get. Illiterate Indian peasants quickly learn to distinguish between the images of actors playing roles they don’t believe in, such as paid spokespeople, political hacks, news commentators, and stars, and the images of people saying things they actually think and feel, such as people whose relatives have just been slaughtered. Hence everyone now knows that nearly everyone else desires dignity and peace, and it is dawning on most of us that few people feel well represented by their governments. Before television, one could easily make people hate each other just by substituting cartoons and political garbage talk for real people. The degree of distortion of the image of the “enemy”—Japanese with sneaky eyes, buck teeth, and malicious grins, drooling Germans with claws—used in the two World Wars is now harder to manage. The UN employs only 79 human rights lawyer, less than one part-timer for each country, so the human rights movement world-wide is only a publicity campaign fighting a losing uphill battle against corporate-controlled governments organizing themselves through the Bretton Woods Institutions. Yet at the same time that television spreads the knowledge that human rights have virtually no existence outside Europe, it unintentionally spreads the desire to actualize human rights. I feel a glimmer of hope that people around the world can bring some of their governments to free themselves of the US government, not only the world superpower, but the world puppeteer. If that happens, I may find some country to emigrate to.
I find most hope in the good will and perceptiveness of those at the bottom of the ladders of the political, economic, and social hierarchies. I participated in an Alternatives to Violence Workshop in a Scottish prison. One exercise required the inmates to invent group projects and then cooperate on them without saying a word. Four of them intently made a boat of newspapers. Four used their newspapers to make a sleeping bag for a homeless man under a table. Four wrapped me up as the Statue of Liberty, a bit less glorious than the original. Later we were all a little puzzled how the three groups had managed to make three objects that fit together in that way. But the inmates agreed that they’d either made New York or the world. The difference seemed negligible; New York rules the world. We thought something a little more pluralistic and open would be better.
Perhaps if the powerful were imprisoned, or impoverished, or humiliated they’d come to their senses. But they prefer to do those things to other people.
--Richard Z. Duffee