In Democracy's Shadow: Fences, Raids and the Production of Migrant Illegality

Abstract:     
Why is the United States building a border fence and raiding workplaces? How has it come to harbor 12 million people without legal status? This article proposes that we can understand these phenomena as the product of a legal culture which privileges the desires and perspective of the demos over nearly every other value. Accordingly, government is structured so that it approaches immigration in a way that flatters this democratic epistemology, instead of a judicious, effective and humane policy perspective. Put into practice, the current emphasis means that immigration regulation is an exercise in symbolic action. We see the effects of this majoritarian architecture in the construction of the border fence, which the Congressional Research Service has acknowledged does little to control illegal immigration, but succeeds in increasing the rate of migrant border deaths. Nevertheless, the fence prevails as policy because it confirms and assuages the polity's fear of racial invasion; that it does little to prevent undocumented migration is irrelevant.

The article also considers how the United States engages in these kinds of actions and still maintains its outward image as liberty enlightening the world. Part II illustrates how the adoption of antidiscrimination provisions in immigration law were intended to preserve this enlightenment image, but had the practical effect of facilitating the employment of unauthorized migrants, leading the polity to demand visible action, which in turn produced stigmatizing employer raids. Finally, the article explores the way in which courts maintain the narrative of the United States as an open-armed refuge, while managing the radical potential of the Fourteenth Amendment's birthright citizenship provision. All these political and legal forces combine, then, to produce the 12 million stigmatized illegal migrants who live in democracy's shadow.

Keywords: Border Law, Border Security, Migration, Immigration, Administrative law, Secure Fence Act of 2006

JEL Classifications: K00

Accepted Paper Series