We’ve been getting a lot of comments about the immigration issue, which the ACLU responds to generally as it does to most issues – in terms of the law, the Constitution, and individual rights. Equal rights for all people. We start from taking for granted the inherent equality of people, even though we see from our daily experience that not everyone is treated equally.
Stepping outside of my ACLU shoes and into a my postmodern galoshes, I want to ask a question that starts somewhere else. Rather than ask, “How do we make people equal under the law?”, we might ask, “How do we make people?” — that is, how do we think about what a person is in a legal framework?
When the concept of a social contract started to emerge, it took as a premise the equality of people. But at that time (1650-1800), who “counted” as a person? Enslaved Africans certainly weren’t. Women didn’t have the vote and had limited roles in public life. Not to mention Native Americans, who had been killed or run off their land when Europeans arrived to settle on the continent.
Over time, our society has been more or less promoting various groups of people to the status of “persons” under the law – after a lot of hard-fought battles by people claiming that recognition. And the legal realm is still a very important site for these battles and for gaining recognition.
But there are limits to mere recognition, and our current political system has its roots in a time when whiteness, middle class status, male gender, heterosexuality, and able-bodiedness shaped the definition of personhood – and the legal and political norms of society. Our laws – and the way they are interpreted and enacted – still contain the legacy of their history.
So while we try at the ACLU to make the law live up to its promise of equality, I – as a citizen of this country – struggle to understand the ways the law is limited. Is it possible to define ourselves by difference (immigrant, LGBT, African American, female), but still have equality? Hidden behind our “differences” is an assumed norm. What defines the norm, and why is it the norm?
These are questions we can ask that might push us to consider how the law limits our understanding of difference, at the same time that it offers opportunity to achieve a better quality of life for all people. And when the sticky issues of immigration rear their heads, it might be a good time to question the unspoken norms we all live with and that we each help to either protect or disrupt.
Jess in Philly
with thanks to Charles W. Mills (1998)