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A LESSON FROM MY LATE FRIEND DR. GILBERT LANCE RAIFORD

Long ago I was a youngster with Dreams.  I fancied myself a budding historian, although frankly I was a rather naïve teenager.  Back then I viewed history from the prism of rote memory splashed with romantic notions of the Nobility of Freedom Fighters.  Dr. Raiford, a social worker by profession, met me in my youthful and idealistic period. I had already declared to my parents that I wanted to be a lawyer, and I never knew that I could back away from that claim.  Dr. Raiford in ways small and big guided me in making my declaration a reality.

“Doc,” as he would come to be called, was also an unusual scholar with a broad range of interests and knowledge.  Over time I would come to appreciate him as a Constitutional scholar as well. Even before my first day of law school “Doc” was schooling me about our cherished American Constitution. In particular he would expound on the 14th Amendment.  He went through great lengths to help me understand how the rights of minorities as protected by the Constitution and the broader Civil Rights laws rested on tenuous grounds. In short, his position was that these rights were subject to change. As an example, he drew my attention to the 18th Amendment, known as the Prohibition Act, and how when the country tired of the “Dry Spell” they opted to repeal it with the 21st Amendment.  Prohibition lasted from 1919 to 1933 and was a perfect example of “Doc’s” lesson that day.  As part of that lesson “Doc” showed me how these rights, which we view as fundamental, were an afterthought brought to life not by our Founding Fathers but by later generations of Americans.

Generations of Americans would agitate for change in order to uphold the “Spirit “of Freedom even when the law was not on their side. This battle was best illustrated by the 1857 Supreme Court case of Dred Scott v. Sandford.  This landmark case revealed how much of the country was still tied to the notion that African American “slaves” were not equal, so it was written in our constitution.  The Dred Scott decision found “that enslaved people were not citizens of the United States and, therefore, could not expect any protection from the Federal government or the Courts.”   Of course, in later conversations we would speak about how the North lost the Civil War and how in many respects it was still raging. But all that is for another day.

Dr. Raiford was able to articulate how despite their intellect and strong philosophical ideals our Founding Fathers would fail our nation by excluding from recognition the “Negroes.,” whether freed or enslaved and settled on allowing them to be counted as three-fifths of a person.  Let me be clear he exclaimed; they weren’t really recognizing us as Citizens but rather as chattel or property that had to credited in order to rectify the economic imbalance between the Northern and Southern Colonies.  In short, “Created Equal” was never meant for us. Hard to imagine but true nevertheless.

Despite arguments to the contrary the Civil War was fought primarily over the “Institution of Slavery. “The 14th Amendment came about as a way to justify the carnage between brothers (not to be confused with Bros.).  The victor (the North) had come to the late recognition that indeed “Created Equal” must have been meant to include “Slaves” and that it was about time to state this as clearly as possible. 

The first clause of the 14th Amendment reads, in part, as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Almost immediately the Southern States began to balk. In short order they would reverse most of the gains of the “Reconstruction Era,” and while in theory they “Honored” the Citizenship Clause of the 14th Amendment they would pass laws that would strip and violate not only the spirit of the Amendment but the law itself.  Voting rules from poll taxes to literacy tests were ruthlessly enforced, thereby depriving “American” citizens of the very protection promised by the new and improved Constitution. There remained countless of ways in which society in general allowed all sorts of violations of the Constitution to go unchallenged.  That is until Pres. Lydon B. Johnson at the prodding of Dr. Martin Luther King, Jr. and others ushered in the Civil Rights era and brought us a measure of equality. Mid you, I did say “a” measure. With Affirmative Action being put to bed and Diversity, Equity, and Inclusion all on the ropes one can see the importance of the lessons taught to us by our Elders and our ancestors.

The important lesson Dr. Raiford imprinted upon me long ago was simply that our rights as citizens were mostly created by Amendments and not the foundational document itself, and thus they are subject to change at any time. Mostly, at the whim of a “privileged” few. Two things that I urge you to consider today are: 1) the history of the United States of deporting American citizens, and 2) the quest to end birth-right citizenship.  Both of these have transversed a tangled and twist journey throughout our history.

In 1882 Congress enacted the Chinese Exclusion Act of 1882. The act was the first major restrictive immigration law which in addition excluding the entry of Chinese immigrants resulted in the deportation of Chinese-American citizens.  American citizens were also deported during the Palmer Raids of 1919-1920.  Although the raids focused on Italian and Eastern European immigrants who were considered radicals American citizens were nevertheless rounded up and deported.  Within the decade the Depression would lead to the launch of the Mexican Repatriation program. The scarcity of jobs placed many Americans on the “Soup Line” and our leaders felt the urge to protect the few opportunities available for “White” Americans.  The program ran from 1929-1936 resulting in the deportation of Mexican immigrants as well as Mexican-Americans citizens. Then came the attack on Pearl Harbor in 1941.  The U.S. government reacted in two significant ways. The better known was the infamous Japanese-American Interment Program. Less spoken of is the actual deportation of Japanese-American citizens.

The question of “Birth Right” citizenship is right there on the first line of the h Amendment.  That line also contains the phrase “and subject to the jurisdiction thereof.”  These words have in the past, and even more recently, been interpreted by some as support for the proposition that children born in the U.S. to parents in the U.S. who are not themselves citizens are also  not citizens.  This twisted reading of the Amendment was at the very core of the 1898 case of United States vs. Wong Kim Ark a Chinese-American born in San Francisco to parents who were lawful permanent residents but not naturalized U.S. citizens.  The Court considered the key facts that Wong Kim Ark’s parents were neither diplomats nor otherwise official emissaries of the Emperor of China and thus were indeed “subject to the jurisdiction of the United States.”  The Court laid this stretch of an argument to rest and its decision has maintained precedential value ever since.  Nevertheless, the argument has regained currency with the far-right fringe and “White Supremacists” alike. They have found additional support from their De Facto leader President Donald J. Trump. 

Pres. Trump apparently never studied Civics and fails to understand the Constitutional process.  He has proclaimed through an Executive Order the end of “Birth-Right” citizenship.  He has been swiftly rebuked in the case of State of Washington vs. Donald Trump, et. al.  Federal Judge John Coughenour issued a Temporary Restraining Order on the basis that the State of Washington demonstrated a strong likelihood of success on the merits of its claim.  The Judge went further and stated during arguments that the Executive Order was “blatantly unconstitutional.”   The Judge went further and stated “I have been on the bench for over four decades. I can’t remember another case where the question presented was as clear.”  What is clear is that a Constitutional Amendment can be repealed through the Legislative process but not revoked by Executive Action.

My take-away is to recall my friend’s lesson of years ago, as supplemented by my own knowledge and experience, and stand guard against efforts to erode our Constitutional rights, especially that of Birth Right citizenship.

It is not inconceivable that future efforts could expand from eroding the 14th Amendment’s Birth-Right protection to eviscerating it in its entirety.  May God have Mercy on us. And thank you my dear friend for your wisdom and valuable lessons that have kept me grounded.

Posted on by rdaviddc17

DOWN BY THE BORDER

Current events have once again brought the tragedy on our southern Border front and center. And, once again the finger pointing has resumed. Pres. Biden deserves a failing grade for his performance thus far.  Engaging in a semantic battle over words such as “surge” and “crisis” is simply absurd.  The real question, year after year, has been what to do for the children.  So far the perennial answer has been nothing.  Pres. Obama back in 2008 pronounced that there was indeed a “Humanitarian Crisis” on our southern border, and even then it was nothing new. A humanitarian response remains off-limits.

This lack of action should come as no surprise seeing as how the anti-immigrant forces have long-ago hijacked Congress and stalled efforts at immigration reform.   Twenty-five years since the last Congressional Reform bill was passed these forces have solidified their grip on the Hill. Once again unaccompanied minors find themselves betwixt border defenders and hand-cuffed politicians of all stripes.    

 Just as before the administration continues to ignores the true dynamics of the exodus of refugees from the Northern Triangle region.  Waves of refugees have crossed our southern border since the 1980’s when the civilian population began fleeing the fighting, massacres, and U.S. sponsored mayhem in order to avoid being trapped between the cross-fire of government and rebel troops and their opposing ideologies.  The Reagan administration considered these refugees “collateral damage” of the Cold-War era.  It refused, with disastrous consequences, to recognize them as “war refugees,” insisting they were mere “economic refugees.”  That play on words resulted in Federal Court litigation which led the government to concede that it had systematically skewed the asylum process against legitimate claimants.  Consequently, it entered into a Consent Decree requiring it to reopen the process to allow thousands of class members to refile their asylum claims and have a new and fair review of them, consistent with the law.  Dramatically, the Court rejected the government’s notion that citizens from our allied neighbors could ever qualify as refugees. 

Subsequent waves of refugees came fleeing financial and other insecurities facing propped-up governments trying to rebuild their war-torn economies while forcing civilians and former combatants to live side by side as if the atrocities of the wars could be forgotten and their now tainted neighbors forgiven.  Uneasiness over this “Peace” arrangement produced another round of refugees streaming across our southern border.  Never once did “Uncle Sam” admit to its complicity nor bother to provide the American public a straight answer.   Unfortunately, nothing has seemed to change.

Not to be forgotten was Mother Nature’s imprint.  It visited the Northern Triangle and ravaged it with Hurricanes, Earthquakes, and multi-year droughts.  These natural disasters contributed greatly to additional waves of refugees.  Over the past twenty years Congress in its periodic reauthorization process for TPS has consistently revisited El Salvador’s country conditions and declared them mostly unfavorable.  Because of this thousands of Salvadorans refugees continue to obtain an extension of their TPS and avoid expulsion.  However, this “safe haven” has not been available to those who have entered the U.S. after 2001, creating a new “mixed-status” underclass.  Of course, none of this mattered to Pres. Trump who, without any thought, canceled the TPS program while kicking the exit date down the field. 

A constant overlay through most of the past few decades has been the societal impact of reverse migration of Central American youth.  Those who had spent years in the MS-13 and Barrio-18 street gangs wreaking havoc on our communities began to be deported as felons.  They returned home with a vengeance creating a new International Criminal Syndicate. Without much government interference they have ruled the extortion and kidnapping rackets and have more recently entered into the smuggling racket.  Now, if their extortion threats forces refugees to run, they are still guaranteed their smuggler’s fee.  That there is a hell of a racket. 

Next came the terrorists acts of 9/11 birthing a new breed of “National Security” concerns on our southern border.  In the name of “National Security” we devised a malicious plan to deter future border crossers by choking off their normal entry points and forcing them to take the more hazardous routes through the deadly Sonoran Desert.  In spite of the reports of an unknown number of deaths on the trail, and the criminal prosecution of those leaving water for them, the waves of refugees simply continue to find their way North.  And the harder the U.S. government tries to make their journey impossible the more lucrative the smuggling business becomes. 

Last weekend DHS Secretary Alejandro Majorca’s did his part to help clarify the situation. He stated in unequivocal terms that our southern Border is “CLOSED.”  He noted that families, and single adults, continue to be deported and sent back home.  In that sense, Sec. Mayorkas was telling us the truth, if only the half of it.  The other half is that the children are still deemed to be illegal border crossers.  They will be placed in removal proceedings while the fools on the hill debate semantics.  These border games show no sign of being play according to the “Queens Rules” let alone U.S. asylum laws. Thus, Pres. Biden may well inherit the tag of the new “Deporter-In-Chief.” This is what happens when politicians feign concern and promise to examine the root causes of “crises.”    

The truth has always been that our southern border was closed.  Blink – Blink.  When it was just Mexican laborers and farmworkers crossing over to work and take their earnings back home with them everybody recognized when a good Blink was in order.  When the southern border crossers became “war refugees” fleeing with their families the blinking became subtle and buried from plain view.  Thus it was, that another much-needed discussion on immigration was avoided and remains unresolved. The Trump administration annoyed about this state of affairs unabashedly went about truly closing the southern border without regard to laws or humanitarian considerations.  It did everything short of ordering Federal troops to open fire on border-crossers.

Sealing the border has replaced thoughtful analysis of immigration policies.  Following Trump’s lead, and at the 11th hour, his Acting Attorney General (via the Board of Immigration Appeals) issued a revised A.G. Decision in Matter of A-B.  To clear up any remaining doubts left by his predecessor he ruled that applying the law correctly most victims of gang violence, generalized crime, and Domestic Violence are suffering from “localized” incidents, are unlikely to show that their government is unable to protect them and should make efforts to relocate in their own country.  In short, they have no basis under the law to qualify for asylum.  This ruling applies to adult border crossers and unaccompanied minors alike. The difference being that the children will not be turned away at the border.  The hidden truth is that they will continue to be considered as being here illegally and will be allowed to pursue their asylum claims in removal proceedings where they will find Matter of A-B insurmountable.  And, given the extent to which the asylum process has been tampered with we can reasonably conclude that they do not have a fighting chance of prevailing.  They are mere pawns being subjected to a cruel and inhumane exercise of procedural due process.

At this rate, and left unchanged, the effect could easily result in Pres. Biden becoming the next “Deporter-in-Chief.”  Like Pres. Obama before him Biden, having inherited a sinking ship, will find himself before a Board of Inquest and held to account due to his being at the Helm and in charge.  The real question remains, who has the courage to stop playing word games and fess up to the American public, would-be refugees, and the International Community?