Editor’s Note: In this BC Law Magazine “Vision Project” series, we are engaged in a lengthy discussion with Boston College Law School faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.
PROFESSOR DANIEL KANSTROOM
Kanstroom is Professor of Law, Thomas F. Carney Distinguished Scholar, faculty director of the Rappaport Center for Law and Public Policy, and codirector of the Center for Human Rights and International Justice. His books include Aftermath: Deportation Law and the New American Diaspora (Oxford, 2012) and Deportation Nation: Outsiders in American History (Harvard, 2007). His work has also appeared in the Harvard Law Review, Yale Journal of International Law, UCLA Law Review, New York Times, Washington Post, and many other publications.
What have these twin pandemics revealed about our understanding of human rights and the strengths and weaknesses of our immigration system? First, let me respectfully challenge one of the premises of your question. Although this not an uncommon formulation, I do not think it is wise or accurate to equate the Covid-19 pandemic with deep, historical problems of police misconduct and violence directed at the African-American/Black community. To be sure, diseases and plagues have long been viewed metaphorically, often with very painful consequences for those who suffer from them. They have also been used by demagogues to push racist narratives, as writers ranging from Albert Camus to Susan Sontag and Gabriel García Márquez have well noted. (Fortunately, few have adopted the current US President’s rather nasty “Chinese virus” trope.)
One can certainly see connections, such as the tragic resonance of the phrase “I can’t breathe” and the now well documented disparate impact of the virus on communities of color. But I do not think that the analogy of disease works especially well as we seek to critique and understand either police violence—a relatively tractable problem for which certain solutions are already apparent—let alone the much deeper issues of systematic and structural racism, emanating from the original American sin of slavery and its innumerable legacies, which have stained this country for more than 400 years.
One must worry, of course, about narratives that blame victims: the elderly, people suffering from obesity or other “underlying conditions,” the poor, African-Americans, Asians, Latinx people, immigrants, workers who must use public transportation, etc. And there are quite troubling ideological configurations and fault lines developing around wearing masks and other measures.
On the other hand, some of our experiences with Covid-19 and the powerful reactions to the murder of George Floyd (and so many other tragic deaths) due to police violence and other forms of personal and systemic racism offer some cause for guarded optimism. This is perhaps more true in the general realm of human and civil rights than it is in the specific arenas of immigration policy and law.
Regarding human and civil rights, one sees a remarkable, multifaceted upsurge in solidarity and social justice among a very diverse cohort of young people, redolent in some ways of the most energetic moments of the 1960s and the Obama elections. This connects to—but transcends—the incredible ascendance of Black Lives Matter. For example, the pandemic has highlighted the critical importance of viewing health care as a right for all people. It has also demonstrated how government must play in role in maintaining basic levels of support for people in all strata of our economy. Despite my concerns about how plagues may spur new forms of bigotry and discrimination, what we have seen so far is in many respects a healthier sense of broad social solidarity.
Moreover, despite–or perhaps because of–the Trump Administration’s intransigence, state and local legislative and policy initiatives are moving quickly to reform police practices. The lessons of history counsel cautious optimism if not skepticism; and they certainly demand continued engagement. But, as I write, there is significant positive movement.
Unfortunately, though, this has been less true—and I fear it will continue to be less true—regarding immigration and the rights of noncitizens. Historically, disease has powerfully justified calls for border control and has spurred xenophobia. In this country, one saw this as far back as the Yellow Fever episodes that devastated Philadelphia and other large cities in the late 18th century, leading to the first authorization of federal power to quarantine in 1796.
I fear that powerful narratives of state sovereign border control will be much enhanced by our experience with COVID-19 and the general move towards globalization will continue to face powerful headwinds for many years. This has had—and it will likely continue to have—devastating consequences for those seeking to migrate, especially those fleeing persecution, violence, climate change, and dreadful poverty.
But there are also important counter-narratives. An increasingly generalized revulsion to xenophobic, nationalist demagogues in the US, the UK, Hungary, Brazil, Russia, India (all of which have done poorly in curbing the spread of the virus) and elsewhere, offers hope for a more vigorous dialogue to resume between the narrow ideals of exclusion and nationalism and those of diversity, pluralism, social dynamism, and human rights.
What short- and long-term opportunities do you see arising from the pandemics for improving how we define and deliver justice? In the short term, we should take the time to evaluate and reconsider a range of policy experiments that have been begun in response to Covid-19. Some have been clearly excessive (indeed illegal) and should be changed as soon as possible. Mr. Trump, for example, proudly highlights the ban on travel from China and a subsequent near total ban on migrants, including asylum seekers and unaccompanied children. In addition, his administration has used the COVID-19 pandemic as a pretext to continue to exclude, detain, and deport people in myriad horrific ways that would have been unthinkable to all but the most rabid xenophobes of the past. As Human Rights Watch notes, the Migrant Protection Protocols (MPP) program, known as Remain in Mexico, has forced asylum seekers to stay in unhygienic camps and shelters in Mexican border cities, where they are at heightened risk of contracting Covid-19. Moreover, conditions in ICE detention facilities have been horrific. One recent study revealed that more than 50 percent of all the individuals tested in detention had tested positive. By contrast, in late June the positive test rate in Massachusetts was under 2 percent.
Sadly, this general convergence of immigrant (and racialized) exclusion and fear of disease stands in a long history of exclusionary measures taken in response to real and perceived threats of disease brought into US communities by “others.” Virtually all such measures have had nasty racial overtones. In March, 1662, for example, the town of East Hampton, Long Island, ordered, “…that no Indian shall come to towne into the street after sufficient notice upon penalty of 5s. or be whipped until they be free of the smallpoxe…”
In 1891, in the midst of the explicitly racist, so-called Chinese Exclusion Era, Congress authorized the exclusion of those with “loathsome or dangerous contagious disease[s],” a perilously flexible term to be implemented through largely unreviewable discretionary determinations at US ports of entry. One historical account describes health officers as “proud, uniformed agents of the United States government [who] saw Ellis Island’s ornate turrets as towers of vigilance from which they dutifully guarded their country against disease and debility.” Race was always a factor in such decisions, whether consciously or not. The percentage of (mostly) Asian immigrants excluded at Angel Island exceeded 10 percent, much higher than the percentage of Europeans excluded by officials at Ellis Island. Similar racialized exclusions—particularly of Haitian immigrants—took place in the HIV/AIDS epidemic of the 1980s and 1990s.
On the other hand, some public health and economic support measures, as I noted above, express a deeper sense of social solidarity and care than we have seen in this country since the Franklin D. Roosevelt Administration. All of this is to say that we stand at a tectonic moment, a point of inflection during which much attention must be paid not only to short-term crises but also to historic opportunities to engage in real, progressive change.
What is your vision for a post-pandemic world? What policies and plans would you recommend to guide us toward building and sustaining a stronger and more just society? I am afraid that I lack the imagination to envision a completely post-pandemic world. The sad fact is that in an inevitably globalized economy, we face a dangerous array of diseases, including drug-resistant TB, MERS, SARS, Ebola, Zika, West Nile, and so on. The view of the nation-state as a gated community—while perhaps technologically feasible in the very short term—is an unsustainable xenophobic fantasy in the long term, with devastating economic and human rights consequences that we must avoid.
Though they are clearly different types of phenomena, the Covid-19 pandemic and the recent movements to challenge police violence and the legacies of race-based slavery and oppression lead me to the same stance: We must recognize that our task is to harness the energy and enthusiasm that we see among young people in street demonstrations and elsewhere. We need to find better ways of living in diverse communities and of mitigating as best we can certain inevitable risks together. For those accustomed to the perquisites of white privilege, this is an important time to listen and to learn with humility. Silence is not acceptable; but neither are defensive reactions or attempts to speak in an overly authoritative manner.
Through dialogue, introspection, empathy, historical awareness, and genuine commitment to principles of human dignity, fairness, and equity, we can, I believe, find new ways to bend the arc of history towards justice, without which there can clearly be no peace.
Read all faculty Vision Project interviews here.