Three years ago, I drove to a small village in Poland. It was a rainy day, and I spent my time alternating nervous glances between Google Maps and unfamiliar street signs while navigating the roads to the hotel. The houses were small, with occasionally large, vibrant green lawns. When I had time to find my hotel and look at the small town, it struck me how familiar it was. I found myself looking quizzically at those houses though, wondering how people could live here, go shopping, fall in love, get married, and go to work. How could people live in it like it was any other town?
Oświęcim may not be well known, but is Germanized form, Auschwitz, is known all over the world as one of the most infamous concentration camps the Nazi regime set up. It’s neighbor death camp, Auschwitz II-Birkenau, would become the heaviest driver for mortality; of the 1.3 million people sent to these facilities, 1.1 million would die. To walk the streets of Oświęcim is to see more than just the concentration and death camps; it is to see a small town with a prospering economy, nice homes, and good schools. It is hard to reconcile the village with the history. Again — how can people live there, like it is any other town?
This week, I had the same feeling in the Untied States. I got up in the mornings, I drove on busy highways at 8am. I checked emails as I drank coffee. Life was normal, but I knew what was happening on the US-Mexico border. Because:
Beginning in April, the US government began separating the children of families trying to cross the border. While the reason stated by the US government was that the out-of-power opposition party was responsible for the policy change, it is clear that the decision came directly from the White House in response to increasing immigration. It is also clear that rather than being impartial legal decisions about law enforcement, considerable racial animus lies behind them.
Now, let’s pause here for a minute — there is a deliberate parallel being drawn here between the Holocaust — an event in which 12 million people were murdered including 6 million Jews — and the detention of ~2,000 children from their parents at the US border. I am not trying to argue that these are in any way equivalent. Rather, it is the the ideas behind citizenship, laws, and treatment of second-class citizens in 1930’s Germany that provides a more relevant comparison. We are not talking about the final form of the buildings in the village of Oświęcim, but rather their foundations in the early 1930’s.
For now, let’s return to the situation at the US border. Less enthusiastic supporters of this policy change of separating children from their parents will focus on three arguments: 1) They shouldn’t have broken the law, 2) They are not citizens, and 3) The holding conditions are not inhumane. Let’s look at these arguments in turn.
They shouldn’t have broken the law
The children being imprisoned range in age from a few months to 16 years of age. We can debate how old you can be to commit a crime worth imprisonment, but I’m pretty sure the baby who was being breastfed was too young to commit a crime.
But let’s say, for the sake of argument, that these children were young enough to commit a crime worthy of imprisonment— even the infant being breastfed. What crime is it exactly? Let’s start with the order of authorities in the US, which ranks the US Constitution as #1.
As it turns out, the Constitution has very little to say about immigration in general with two exceptions: only a natural-born citizen can be President (Article II, Section 2) and the process of naturalization must be decided by Congress (Article I, Section 8). Other than that, the Constitution says nothing about immigration, not even recognizes a distinction between legal vs. illegal immigration. Though, the Bill of Rights has very strong language on the nature of punishment
Amendment V: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”
Amendment VI: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
Amendment VIII: “Excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
One may note that the 8th amendment is obvious — imprisoning children indefinitely is both very cruel and very unusual. But because we are talking about indefinite detention, we are talking about depriving children of liberty without due process. Regardless of whether or not you agree with it or not, the rights outlined in the Constitution and its amendments apply to all people, regardless of their citizenship status. There is no part in the green card process where you suddenly get your right to free speech. Or, in this case, protection from cruel and unusual punishment.
If it is a crime, are children allowed to defend themselves? Hire attorneys? File appeals? Well, it’s complicated.
A proper definition of citizenship didn’t arrive to amendments to the Constitution until July 9th, 1866, when after the Civil War the XVI amendment was ratified. This defined citizenship to all persons born within the US, but was done so in the context of the abolition of slavery. This is the extent to which the Constitution defines immigration. Prior to this, citizenship had been entirely defined by Congress via stand-alone legislation.
Congress, in 1790, fulfilled its duties to naturalization laid out in Article I, section 8 with the Naturalization Act (this is the second order of authorities, for those keeping track). This indicated that immigrants who came to the US could apply for citizenship after 2 years (1790), 5 years (1795) then 14 years (1798) as the legislation was updated. It wasn’t until the Chinese Exclusion Act of 1882 when an immigration policy, rather than process, was defined by Congress. As the name implies, the birth of our distinction between legal vs. illegal immigration was racial from the beginning. From then on, Congress began to set racial definitions on immigration. This process was fine-tuned in 1921 under the Emergency Quota Act, which set limits for various groups separately. The Supreme Court, in one of its most reviled (and also forgotten) decisions, retroactively removed citizenship from South Asians by declaring them non-white in The United States vs. Bhagat Singh Thind. The Immigration Act of 1924 continued the racial quotas, pinging them to each groups population as of the 1890 census to keep a desired racial balance in the country. Our system of deportation began with President Herbert Hoover in 1929, when he began deporting hundreds of thousands of Mexican immigrants as a response to the Great Depression. Though the word “Mexican immigrant” is not appropriate here, as a majority (60%) of those deported were born in the US and thus were US citizens. Presumably, if legal vs. illegal immigration were about the Constitution, and not about race, those Americans would not have been permanently exiled.
It wasn’t until 1943 that the Chinese exclusion laws were repealed, and until 1946 that South Asian discrimination ceased. If you are wondering what changed around that time…
They are not citizens
Once, when passing through the inner City, I suddenly encountered a phenomenon in a long caftan and wearing black side-locks. My first thought was: Is this a Jew? They certainly did not have this appearance in Linz. I watched the man stealthily and cautiously; but the longer I gazed at the strange countenance and examined it feature by feature, the more the question shaped itself in my brain: Is this a German? — Adolph Hitler, Mein Kampf
The legal rights of illegal immigrants are also enshrined in the Constitution. Just like you and me, they have a right to privacy (Amendment IV), a right to free speech and assembly (Amendment I), and they can’t be forced to quarter British troops (Amendment III). So nothing is different on the surface. But underneath is a crucial distinction — immigration is considered an administrative matter, not a criminal one. This has two implications. First, the argument over whether immigration is a crime is moot, since under current law immigration is not a criminal manner. But immigration proceedings are not treated the same way. As of today, Congress can pass laws that only affect immigrants, and the Supreme Court (US vs. Bhagat not withstanding) tends not to interfere. This creates a grey zone where, in theory yesterday and in practice today, immigrants can be treated in ways that would be considered unacceptable for anyone else (legally, not ethically, speaking). The root of our current crises lies in this gap. As you can probably infer from the history of US immigration, this gap is racial from the point at which it opens.
The US is hardly the only nation to open a legal definition of second class citizens (or subjects, if you prefer). What makes the US unusual is its economic dependence on those second class citizens. Today there are around 11 million unauthorized immigrants in the US, roughly 3.3% of the population. While a large number, it actually represents a stabilization which followed the economic crises of 2008.
This group is highly employed, they have a labor participation rate of 71% (compared to 49% for citizens). But that employment is heavily concentrated in low-paying, unskilled labor. The crux of the matter is that the low prices Americans pay for food related to the presence of this undocumented workforce. In their absence, prices would rise as citizen laborers demand much higher salaries. Aside from the price of food and its nasty habit of fomenting revolution, this would arguably be a positive. But it doesn’t change the fact that the large body of unauthorized immigrants who pay billions on federal taxes do not enjoy full protection of the law. The moral issue trumps the economic one.
The biggest moral problem historically with a large number of second class citizens is that it opens the door to human rights abuses. Take the historical high water mark for this, Nazi Germany. The underpinnings of this regime were rooted in Adolph Hitler’s views on race:
On this first and fundamental lie, the purpose of which is to make people believe that Jewry is not a nation but a religion, other lies are subsequently based.
…
Thus he [the Jew] gradually came to form a State within a State. He came to look upon the commercial domain and all money transactions as a privilege belonging exclusively to himself and he exploited it ruthlessly. — Adolph Hitler, Mein Kampf, Chapter XI
The Holocaust remains one of the most horrifying events in history. While there have been genocides in the past, none were as coldly industrial as the final years of Nazi Germany. In his book Mein Kampf, written in 1925, Adolph Hitler carefully lays out the case for why the Jewish people represented an existential threat: they were a separate nation state from Germany. Judaism, to Hitler, wasn’t a religion, but a foreign power which had infiltrated Germany. Thus, the Jewish people were to be treated like any other enemy wartime power. The root of state-sanctioned violence against a minority hinges on a more esoteric debate about the nature of citizenship.
I bring this history up not to accuse those in America who believe that the border must be secured and unauthorized immigration halted. Who doesn’t want an orderly process for people to come into the country? The problem lies in defining people who live in the country as being an “other” that must be removed for national security reasons. This type of thinking has an appalling historical precedent. Our views on human rights are at their strongest when we discuss the merits of individuals. They are at their weakest when we discuss the merits of groups.
People may also take issue with any comparison between Nazi Germany and the present-day treatment of unauthorized immigrants and asylum-seekers — America does not hold eliminationalist aims against those crossing the border. This is obvious to almost all on the face of it, but we can easily distinguish between the two because:
The holding conditions are not inhumane
Inside, where there was once a McDonald’s, cafeteria workers served chicken, vegetables and plastic fruit cups. In the former loading docks, children watched the animated movie “Moana,” dubbed in Spanish. In what used to be a garage, six young people played basketball. source.
When I visited Auschwitz I, I was asked an unusual question, can the x-ray fluorescence (XRF) instrument I used be useful for finding out what was in pigments? I answered yes — arguably that was one of its most useful features. I had worked on paintings from artists like Rembrandt and Cezanne with the system. But why would they need this at Auschwitz?
They took me to the basement of one of the uniform buildings. I followed behind them, XRF gun and MacBook in hand. At the end of the hall, to my astonishment, was a wall painting featuring rabbits eating grass.
When the Russians first entered Auschwitz, they had reported bodies being stacked on either side of this wall painting. The painting itself, however, had been made early in the camp’s history. A guard or administrator had decided that the inmates could be put to work making the area presentable. And the painter got credit — they even signed with their identification number.
These photos are all from me. I share these because it is is crucial to remember that history is filled with nuanced details that complicate simplistic moral narratives. It is hard to imagine a push to make cute paintings at Auschwitz, but it highlights the human element of the story. For most of the time Auschwitz existed, it was not used to kill millions of people.
There has been a cottage industry of making the concentration camps horrible beyond recognition. And, in the later years of their existence, this was certainly true. But their final form was not representative of their beginnings, or early history. Dachau, founded in 1933, was used to intern communists and some Social Democrats (the opposition party to the Nazis). At its maximum, it held 5,000 people. Many were released, and by the final years of the 1930’s, the total number of prisoners held in all of the Nazi’s concentration camps had fallen to a little over 7,000. All but 4 had been closed by 1937. To any observer at that time, the concentration camps looked like an early flirtation with radicalism and the early disruptions of a young regime. It was this kind of viewpoint that led politicians like Neville Chamberlain to consider Nazi Germany a moderating state, if still run by an autocratic leader.
Of course, later History would take a radically different direction. After 1941, the Nazi regime would peruse annihilation of undesirable groups of people, exterminating 13 million total in a rejuvenated camp system, including 6 million Jews. The early use of concentration camps were not predictive of their final form at the end of World War II.
The proper comparison between the current American internment of children and the Nazi concentration camps isn’t to their final stages, but to their more modest beginnings as ways to detain undesirable populations. Those initial detainments formed the foundations of the later horrors. Without that initial tolerance of the detention camps, the later horrors would not have had an infrastructure to occur on the industrial scale in which they did. While we know the direction history took with the Nazi’s, there are many paths forward for America as of today.
Conclusion
Today, you and I both find ourselves in the village of Oświęcim. It is as it was yesterday except for one thing — strange buildings are being built on the other side of the road. We don’t know yet what their final form will be, or what the train tracks leading up to them will bring.
We look back at the Holocaust, and perhaps convince ourselves that we would have sheltered fugitive Jews or fought back against the Nazis. The problem is that the process lasted from 1932 to 1945. What year would have been the right one to fight back? 1932? People would have said give him a chance. 1936? Are you unpatriotic — Germany has the Olympics! 1937? The concentration camps are being closed, things worked themselves out. 1939? Germany is at war, do you work for Germany’s enemies? There were few punctuated moments when morality demanded a different course of action. On a different continent, at a different time, the same moral ambiguity to action against injustice inspired Martin Luther King Jr. to take the problem on in his Letter from a Birmingham Jail:
First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Council-er or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.
Few Germans were fully on board with Hitler’s plans. The Nazis only received 36.8% of the vote, and gained power despite the popular vote because of the arcane details of the Weimar Republic. The Nazi’s were unpopular, and their first foothold into power was widely protested, including demonstrations by tens of thousands in Berlin.
The problem is that the lukewarm acceptance of the Nazi regime enabled its horrors. Had the deportation of the Jewish population death camps happened the day of Hitler’s initial appointment as Chancellor, there would have been outrage. But the degradation of political and cultural norms between 1932 and 1939 eased the German nation into a disastrous complacency. When the war came, so too did the humanitarian disaster.
The question for you and I to ask of ourselves is how far the expansion buildings in our village must go before we say enough is enough.
What You Can Do Right Now
First, call your elected representatives. You can do so easily using the Congressional Switchboard: (202) 224–3121
In addition to this, you can text RESIST to 50409, and Resistbot, an automated text messaging program, can help you send faxes to your Congressional representation.
Letting your representatives know your concern is good — but there are other ways to help as well. An excellent list of resources is available here. high up on the list is the Asylum Seeker Advocacy Project, which helps to prevent the deportation of families fleeing violence in their home countries. One of the biggest problems with the current detention system is that children as young as a few months old are often left to represent themselves in courtroom immigration proceedings — Kids In Need of Defence (KIND) helps them get representation when they need it. The Young Center for Children’s Immigrant Rights is another critical resource for those children.
Thank you for reading this far.
