I. The Current Conflicts

On April 23, 2010, Arizona Governor Jan Brewer signed into law Senate Bill 1070, the “Support Our Law Enforcement and Safe Neighborhoods Act.”Footnote ⁵ Its proponents presented the bill as a means to insure that all Arizona governments and agencies would actively contribute to enforcement of federal immigration laws, rather than abstaining from or even obstructing enforcement, as state legislators believed some local officials were doing. Among other provisions, the bill required all cities to aid immigration enforcement, by collecting and reporting information on immigrant statuses to appropriate federal agencies, and by requesting status information from federal immigration authorities. The law also added state penalties for violations of some federal immigration laws and for the commission of various immigration-related crimes. Most controversially, it authorized Arizona law officers to require persons to give proof of their immigration status whenever the officials had “reasonable suspicion” of illegality. Officials could also arrest immigration law violators without warrants, so long as police had “probable cause” to believe them guilty of such violations.

The Obama Justice Department immediately challenged the law on the grounds that it represented state interference with national policies concerning the enforcement of immigration laws, and because it might encourage stops, searches, and arrests on the basis of suspicions that amounted to illegal racial profiling. The President of Mexico, Felipe Calderón, and other Mexican officials also condemned the law, calling it a “violation of human rights.”Footnote ⁶ On April 30, the Arizona legislature enacted and the Governor signed a further measure guaranteeing that state prosecutors would not investigate complaints based on “race, color, or national origin.” But on July 28, 2010, a day before SB 1070 was to go into effect, U.S. District Judge Susan Bolton issued a preliminary injunction against its authorizations to demand proof of status and to arrest without warrants, though she allowed most of the law to go into effect.Footnote ⁷

Two related developments during the summer of 2010 merit notice. On May 12, less than three weeks after enacting SB 1070, the Arizona legislature passed and Governor Brewer signed HB 2281, which banned Arizona school districts and charter schools from offering classes or courses that were “designed primarily for students of a particular ethnic group” or that “advocate ethnic solidarity instead of the treatment of pupils as individuals.”Footnote ⁸ The State Superintendent of Public Instruction said the bill was primarily aimed at ending the Chicano studies program in the Tucson schools (and on January 4, 2011, his successor took further steps to do exactly that).Footnote ⁹ The law advanced the educational goals of the Arizona voters who gave overwhelming approval in 2000 to Proposition 203, which abolished bilingual education and replaced it with English-immersion classes. Similarly, SB 1070 extended earlier Arizona measures against undocumented immigrants, including Proposition 200, the Arizona Taxpayer and Citizenship Protection Act, which required proof of citizenship to vote and obtain public benefits, and the 2007 Legal Arizona Workers Act, which prohibits businesses from hiring undocumented workers but has been only sporadically enforced.Footnote ¹⁰

Also in summer 2010, many prominent national Republicans, including Senator Lindsey Graham of Florida and Senator Orrin Hatch of Utah, endorsed an amendment to the Fourteenth Amendment to deny automatic citizenship to children of undocumented aliens born on U.S. soil, or, failing that, legislation to achieve that end—a step that a few scholars (including me, in 1985) have argued to be permissible under the existing Fourteenth Amendment.Footnote ¹¹ Then, as a new Congress with a Republican House opened on January 5, 2011, a group calling itself “State Legislators for Legal Immigration” proposed state laws declaring that children of undocumented aliens were not citizens and requiring their states to issue distinct birth certificates for those children. Representative Steven King of Iowa promised to introduce a bill eliminating birthright citizenship for children when both parents were illegal immigrants.Footnote ¹² Although the chances of his measure being enacted either by statute or amendment are nil, and although the courts are unlikely to uphold state laws that restrict or deny citizenship to children of undocumented immigrants, these proposals, along with the Arizona legislation and litigation, have kept immigration disputes near the forefront of American politics.

Even as many American lawmakers have been worrying more and more about undocumented immigrants, predominantly from Mexico, the government of the United Mexican States has in the last fifteen years taken two major steps to maintain its affiliation with its nationals who go abroad, particularly to the United States. In 1996, Mexico's governments ratified several constitutional amendments that permitted Mexicans to hold both foreign citizenship and Mexican nationality. The amendments' chief impacts were to allow Mexicans residing in other countries to naturalize there while still retaining their rights to own land in Mexico, to own Mexican businesses and stocks, and to transmit their Mexican property to their heirs—including their children born abroad, who now automatically possess Mexican nationality without having to renounce all other citizenships, as formerly required.Footnote ¹³

The 1996 amendments left undisturbed the distinction between Mexican nationality and citizenship: the law confined voting rights to citizens, while treating Mexicans resident in other countries simply as nationals. But in 2005, Mexico amended its constitution further to permit Mexicans living abroad who had obtained voter registration cards in Mexico and who mailed in ballots to have their votes counted in presidential elections. Efforts to permit Mexicans to register to vote entirely outside the country, to vote by other means, and to conduct campaigns in other countries were defeated.Footnote ¹⁴ But attempts to further expand the voting rights of non-resident Mexicans have continued, particularly on behalf of Mexicans resident in the United States. Even if these movements do not succeed, the Mexican national government has already shown great willingness to accommodate people with Mexican origins who wish to be members of both U.S. and Mexican economic, political, and cultural communities.

II. The Aspirations of Mexicans and Mexican Americans

As numerous scholars in several disciplines have documented, especially in the last quarter-century, such wishes to be culturally, economically, and sometimes politically both American and Mexican have long been expressed by many, though by no means all, persons of Mexican descent born on both sides of the border. In 1985, for example, political historian Mario García noted that after the United States took much of what is now the American southwest from Mexico after its victory in the Mexican-American War, “nineteenth-century Mexicans reacted in different ways. Some refused to submit to conquest and defended themselves against Anglo control. Others, however, accommodated themselves to the transformation. Nevertheless, both groups maintained a Mexican cultural, political, and economic presence until reinforced by extensive Mexican immigration” in the first third of the twentieth century.Footnote ¹⁵

García then identified the conceptions of Mexican-American identity expressed in three southern California Mexican-American newspapers from the 1920s through the 1970s. La Opiníon in the 1920s accepted the loss of Mexican lands to the U.S. but insisted that Mexicans in the U.S. remained “an organic part of Mexico” who should see themselves as serving their patria by learning skills and gaining income they could contribute upon returning home—and who should therefore not become U.S. citizens.Footnote ¹⁶ From the 1930s to the 1960s, El Espectador by contrast supported “a modified form of Mexican-American nationalism … the integration of Mexicans into the mainstream of American society, but not at the expense of cultural heritage.”Footnote ¹⁷ Mexican Americans and Mexican immigrants should instead embrace “a type of dual cultural citizenship.”Footnote ¹⁸ Then, in the 1960s and 1970s, Sin Fronteras (Without Borders) argued that Mexicans both north and south of the border were victims of “Yankee political, economic, and cultural colonialism,” denounced immigration restrictions, and dreamed of establishing a “greater Mexican workers' state” built from “Mexican workers on both sides of the border.”Footnote ¹⁹ Despite their differences, all three papers argued both that many persons of Mexican descent living on what was officially U.S. soil were there legitimately, and that their identification with Mexicans south of the border was also legitimate.

Subsequently, political anthropologist Leo Chavez used ethnographic research, interviews, and regression analyses of opinion surveys to argue that undocumented Latino immigrants “can have multiple identities; they can imagine themselves to be part of their communities ‘back home,’ and they can also imagine places for themselves in their ‘new,’ or host, communities.”Footnote ²⁰ Chavez also contended that “history, social relationships, and economic structures” have expanded Mexicans' conceptions of “where they may legitimately work…. Their possible labor market includes places in the United States where they (or a relative or friend) have worked before. The political border between Mexico and the United States does not limit this expanded concept.”Footnote ²¹

Political scientists concur. In 2003, William V. Flores insisted that even after the fading of the socialist Chicano radicalism of the late 1960s and 1970s represented by Sin Fronteras, both undocumented and legally resident Latinos in the U.S. were continuing to reject “the artificial boundaries established by the state to distinguish between citizens and noncitizens” through “a counterideology that stresses Latino unity” and “cultural citizenship.”Footnote ²² Flores maintained, however, that the society they imagine “may be more like the ideal America than the America that exists,” in that it is “committed to values of democracy and social justice.” As a result, while “Latinos may not fully belong to America, their hopes and frustrations do.”Footnote ²³

In a major new collaborative study, Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa, Valerie Martinez-Evers and Gary M. Segura agree with Flores's conclusions. They argue that “Latinos have the same long-term goals as other Americans in similar socioeconomic circumstances” and in fact “remain more optimistic about their prospects for achieving their ‘Americano dream’ than their American counterparts.” Most are “willing to take difficult steps to achieve these goals, including ‘adapting’ so as to better fit into American society,” even as they “strive to maintain their distinct cultural and language traditions.”Footnote ²⁴ The authors note that “Latinos simultaneously hold multiple identities” and have social networks that are in many cases based on their country of origin; but they also note “an equally meaningful and vibrant pan-ethnic identity” among “most Latinos” that “is increasingly self-conscious, crosses nationalities, and is politically relevant.”Footnote ²⁵ Even so, variations within and across different national-origin Latino groups mean efforts to mobilize Latinos on the basis of shared ethnic identities and interests remain both philosophically and politically problematic.Footnote ²⁶

These studies confirm that, although not all persons of Mexican descent living on either side of the border hope to build lives that belong to, benefit from, and that shape societies in both the United States and Mexico, many do. Those aspirations are what the Mexican government has sought to facilitate. In many regards, they are also what the Arizona government has sought to obstruct. The fact that Arizona has legislated not only against what it views as illegitimate economic and political activity by undocumented aliens, but also against educational curricula designed to support “dual cultural citizenship,” shows that the concerns of the state's governing officials and the majority of its electorate extend beyond simply opposition to the presence of persons in violation of U.S. immigration laws. The Arizona government is opposed to the kinds of cultural, economic, and political dual citizenships that the Mexican government is encouraging and that many Mexican Americans (as well as many Mexicans) endorse.

What, then, are the obligations of the government of the United States—if any—in relation to the opposed goals of these two governments, and in relation to the Mexicans and Mexican Americans who favor these kinds of dual nationality, and in relation to other Americans who do not? There is no easy answer to this question.

III. The Principle of Coercively Constituted Identities

The principle that I offer as a partial guide to defining the obligations of all the governments involved—though here I focus on the U.S. government—builds on the premise that political communities are forged and sustained in part through what I have termed “ethically constitutive stories of peoplehood,” stories expressing dominant views of the normative purposes and worth of those memberships.Footnote ²⁷ It relies also on Will Kymlicka's claim that persons can only make “meaningful” life choices within the frameworks of the (usually multiple and complex) cultural contexts and narratives that have partly constituted their identities and values.Footnote ²⁸

The first step in my argument is the claim that members of political communities generally feel and should feel senses of obligation, varying in strength, to live up to the demands of their “ethically constitutive” stories.Footnote ²⁹ Next, I presume that the “ethically constitutive stories” advanced by the United States government, the Arizona state government, the Mexican government, and other governments involved in immigration controversies all express foundational commitments to respecting and advancing human dignity, rights, and freedoms. And even though these governments and their communities display many different understandings within and between themselves concerning what those very general commitments mean, all would accept that, so far as possible, government policies should aid rather than hinder persons seeking to pursue lives those persons feel to be meaningful expressions of their identities, values, and aspirations. Finally, if we agree with Kymlicka that most people can lead meaningful lives only within the cultural contexts that have partly constituted those identities, values, and aspirations, and if we recognize that governments have often used their coercive powers to structure the cultural context and narratives that play these constitutive roles in people's lives, then it follows that governments committed to dignity, rights, and freedom have a prima facie obligation to help those whose aspirations they have coercively shaped to realize those aspirations.

There are limits to this obligation. All these governments (like democratic governments generally) understandably recognize special duties to their own citizens, from whom their authority derives, that usually take priority over any obligations to non-citizens. But whether or not this priority is justified—as I think it generally is—most of us would agree that governments that honor human rights and dignity have to acknowledge some duties to human beings outside their officially delineated community. Here I am suggesting that their own values imply that modern constitutional democracies must recognize special obligations to all persons who are who they are, and who have the values and aspirations they have, partly because their identities have been constituted by the governments' coercive measures—whether or not those persons are currently legally citizens of those democracies. It seems undeniable that when governments impose educational systems, religious practices, economic systems, marital and familial structures, forms of expression, and systems of government on people, rewarding those who live as the governments wish and punishing those who do not, they necessarily shape (if they do not indeed constitute) the core values, affiliations, and senses of self of many of those people. We should also expect that many of the people coercively shaped in these ways will feel they can best lead meaningful lives, or can only lead meaningful lives, if they pursue cultural, social, economic, and political endeavors that reflect their mandated forms of socialization—in some cases complying with those forms of socialization, in some cases seeking to adapt or resist them. And just as parents have responsibilities to and for their children, governments should acknowledge that they have responsibilities to and for those they have helped bring into being as persons with particular dreams and prospects.Footnote ³⁰ In sum, governments that are committed to respecting and assisting people's aspirations to lead free and fulfilling lives, and who have exercised their coercive power to make those people's aspirations what they are, have special duties to help them pursue their preferred ways of life, so far as those governments can, consistent with their capacities and their other obligations.

Or so I contend. There are many plausible objections to this claim. None is more potent than the worry that, like many conclusions to abstract moral arguments, this claim provides no practical guidance for real-world dilemmas, and is in any case politically a non-starter. But if we consider the principle's implications for the U.S. government's responsibilities to the leaders and citizens of Arizona and other areas particularly affected by immigration, including Mexican Americans, and also to Mexican nationals, I would argue that this objection loses its force. In a nutshell, those implications are that the U.S. should join the Mexican government in facilitating forms of dual nationality or dual economic and cultural citizenship, rather than reinforcing the policies of state and local governments like Arizona's that seek to reduce the presence of dual nationals, especially Mexicans. Making this case involves attention to how the U.S. government has contributed coercively to the identities, affiliations, hopes and dreams of the populations involved in current immigration disputes. But my argument is not a call to rectify or make reparations for past policies. It does not seek to assess the costs of any harms done to those whose identities the U.S. has coercively shaped, nor to restore them to the condition they might have had without those actions. Nor yet does it turn on the legitimacy of these people's claims for the lands, resources, institutions and ways of life that they or their ancestors held prior to the U.S. government's coercive actions. It rests simply on the reality that the U.S. government has coercively shaped their identities, aspirations, and opportunities into what they are.Footnote ³¹ It is this coercive constituting that makes it imperative for the U.S. to discern how it may fulfill its core commitments to respecting and advancing human dignity, rights, and freedom in general to all these people.

IV. The Role of Governments in Coercively Constituting “Anglo-Americans,” “Mexican-Americans,” and Mexicans

This is not the place for a comprehensive account of how the policies of the United States, the states along the U.S.-Mexico border, and the Mexican government have all contributed to the constituting of the identities of the communities involved in current controversies. Along with others, I have previously argued that during the Jacksonian era, aggressive American westward expansion, justified partly in terms of ideologies of Anglo-Saxon racial superiority and partly in terms of the nation's providential “Manifest Destiny,” precipitated increasing conflicts with Mexico.Footnote ³² In May of 1846, the U.S. government, desiring land and concerned in part about the impact on southern slavery of Mexico's recent abolition of the institution, finally declared war on Mexico after provoking a Mexican attack on U.S. forces seeking to occupy disputed territory. U.S. forces defeated the Mexicans and occupied Mexico City, and on February 2, 1848, the war ended with the signing of the Treaty of Guadalupe Hidalgo. According to its terms, Mexico forfeited its claim to Texas and, in return for $15 million, transferred northwest Mexico, including all of what is now California, Nevada, and Utah, and parts of what is now Arizona, New Mexico, Colorado, and Wyoming, to the United States—roughly half of Mexico's territory (albeit territory thinly occupied by a small percentage of its population).Footnote ³³ Only indigenous tribes inside the modern borders of the U.S., and territories the U.S. acquired in the Spanish-American War (whose inhabitants have since been made U.S. nationals or citizens by various statutes), have been coercively compelled to surrender a greater percentage of their territory to the United States.

The treaty gave Mexicans who chose to remain in the transferred lands the option of obtaining U.S. citizenship. Virtually all the estimated 75,000 who stayed did so.Footnote ³⁴ But as the nineteenth century ended and the twentieth century began, persons of Latino descent increasingly found themselves subjected to discrimination by U.S. territorial and then state governments. Even before the Civil War, California, New Mexico, Arizona, and Texas adopted constitutions that confined voting rights and jury service to white men, (although New Mexico permitted Pueblo Indians to vote until Congress changed the policy in 1853).Footnote ³⁵ Many Mexican Americans were of mixed-race ancestry and were considered non-white—especially poor farmers and laborers. Most of them soon found themselves governed by officials, policed by state and local law enforcement, and tried by courts with only a limited commitment to their equal treatment. Over time, many Mexican Americans responded to this discrimination with various forms of what scholars term “resistant adaptation”—accepting some forms of assimilation in return for economic opportunities and somewhat broader rights, while refusing to accept fully the identities and statuses imposed by the American territorial and then state governments upon most persons of Mexican descent.Footnote ³⁶

Though the Treaty of Guadalupe Hidalgo guaranteed that the property rights of Mexicans in the transferred territories would be upheld, any property claims they made had to be adjudicated in American courts. These courts often proved unreceptive to the limited documentation many Mexicans could offer, and state governments sometimes legislated in favor of squatter rights, actively encouraging whites to occupy Mexican-owned lands.Footnote ³⁷ The resulting loss of Mexican lands was accelerated by the late-nineteenth century development policies of the Mexican government under the dictatorial President Porfirio Díaz, and of the United States during its corporate-dominated Gilded Age. Through various means, both governments took control of lands held by indigenous tribes, churches, and many small farmers to advance the expansion of largely U.S.-owned railroads and mining companies on both sides of the border. U.S. agencies also created irrigation systems that made large-scale commercial farms in the American southwest profitable.Footnote ³⁸ As a result, by 1890, innumerable small farmers in Mexico, and almost all Mexicans living in the American southwest, had lost their land. Many Mexican farmers moved to northern Mexico, and then across the border, seeking employment in the rapidly-expanding railroad, mining, and commercial farming industries, and moving to growing cities in the region, notably El Paso and San Antonio in Texas, and Los Angeles in California. Many of them eventually brought their families along—though often without any sense that they were thus forever leaving Mexico.Footnote ³⁹

The significance of this history is that the U.S. government, American territorial and state governments, and the Mexican government all used their coercive authority in the late nineteenth and early twentieth centuries in ways that displaced substantial populations from their former lands and homes and made them eager to gain better economic opportunities in the United States, even though they still felt strong links to and identifications with Mexico and its territories, language, and cultural traditions. The U.S. government and state governments in the southwest generally welcomed the labor of these immigrants, yet they also discriminated against (especially poorer) Mexican immigrants and Mexican Americans. This discrimination was informed and reinforced by increasingly popular evolution-based doctrines of racial superiority that characterized not only the late-nineteenth century Gilded Age, but also the American Progressive era.Footnote ⁴⁰

In Arizona in particular, the part the U.S. government played in official discrimination was striking. In the early 1900s, the chairman of the U.S. Senate Committee on Territories, Albert Beveridge of Indiana—later a leader of the Progressive Party and always a leading proponent of Anglo-Saxon supremacy—opposed statehood for Arizona and New Mexico because of their Mexican-descended populations. The Fifteenth Amendment had abolished explicit racial restrictions on the franchise in 1870. But to win Senate support and gain admission to the Union, the Arizona territorial assembly in the early 1900s imposed a $2.50 poll tax, and then an English literacy test for voting, effectively disfranchising poorer and less-educated Mexican Americans. The Arizona state constitution included a ban on voting by those “under guardianship,” a provision used to disfranchise many with both tribal and Hispanic ancestry. And in 1912, the state legislature passed a law requiring voters to be able to “read the Constitution of the United States in the English language” well enough to show they were not doing so from memory.Footnote ⁴¹

In this way, the United States used its power over admission to the Union to prompt, if not indeed to compel, “whiter” and more prosperous Arizonans to see themselves as the proper governors of their state because of their racial, cultural, and class identities, and to act accordingly, or else remain territorial residents and so less-than-full citizens themselves. In a time when U.S. government agencies and courts declared former Spanish colonies acquired in the Spanish-American war to be racially and culturally unfit to be fully “incorporated” into the United States, Americans of northern European descent in other states felt authorized to enact similar restrictions on the rights of their residents with Mexican ancestry using the same justification.Footnote ⁴²

And, during the first half of the twentieth century, most southwestern states had such restrictions. They used various means—sometimes explicit Jim Crow segregation laws, sometimes restrictive covenants, sometimes police harassment, sometimes deportation—to impose segregated schooling, housing, and constrained economic and political rights and opportunities on Mexican Americans and Mexican immigrants who were deemed non-white. Predictably, many Mexican Americans resisted this discrimination. But some responded by distancing themselves from African-Americans, who also suffered from discrimination, and espousing both the superiority of the white race and their membership within it—thereby reinforcing the beliefs of all “whites” that they deserved their superior status. Some Mexican Americans even opposed further Mexican immigration, particularly undocumented immigration, seeing it as a source of their own stigmatization.Footnote ⁴³ These political circumstances helped make possible various guest worker arrangements, including the Bracero program begun in 1942, through which U.S. employers could legally hire Mexican laborers and subject them to harsh discrimination under the protection of the law. Federal authorities could then deport the laborers—and sometimes their American-born children, and even other Mexican American citizens—when job markets dried up.Footnote ⁴⁴

In the second half of the twentieth century, anti-Mexican educational and residential segregation and economic discrimination persisted, even in more prosperous regions like northern California—as did divisions among Mexican Americans over how to respond to this treatment (though most of them embraced both American and Mexican identities in one way or another).Footnote ⁴⁵ But the triumphs of the modern African American civil rights movement, the heightened political and cultural consciousness stirred by the Chicano movement of the late 1960s and 1970s, expanded protections against voter discrimination affecting Mexican Americans provided by the 1965 Voting Rights Act (and then particularly its 1975 amendments), and the rise of modern multiculturalism all helped reduce public and private discrimination against Mexican Americans and Mexican immigrants, and encouraged a renewed, widespread sense of transnational Mexican American dual “cultural citizenships.”Footnote ⁴⁶ Under pressure from allied civil rights and labor forces, Congress also ended the Bracero program in 1963.Footnote ⁴⁷ These symbolic affirmations and public policies designed to promote equal rights and to facilitate cultural diversity that the U.S. government and many state and local governments established in the 1960s and 1970s are further examples of how these governments used their power and authority to constitute persons' values and aspirations, if now in a more inclusive way.

Yet after the 1965 Immigration Act, both documented and undocumented Mexican immigration grew. The Immigration Reform and Control Act (IRCA) of 1986, a major Congressional effort at comprehensive immigration reform that sought to stem the influx of undocumented immigrants while granting amnesty to millions already present in the U.S., and the Congressional modifications of those reforms in 1990, increased legal immigration from less-represented countries but failed to reduce the number of undocumented people crossing the border, still overwhelmingly Mexican.Footnote ⁴⁸ Though policy analysts dispute the relative amounts, most agree that the costs of providing social services to documented and undocumented immigrants have grown substantially. These costs have fallen mostly on the state and local governments in the areas where these immigrants are concentrated (even as the federal government benefits from immigrants' taxes and the national economy in general gains from immigrant labor).Footnote ⁴⁹

The decisions of the U.S., Mexican, and Canadian governments to join the North American Free Trade Agreement (NAFTA) in 1992 only accelerated the movement of persons across the U.S.-Mexican border.Footnote ⁵⁰ In the 1990s, some immigrant-receiving states, particularly those in which Anglo majorities confronted substantial minority populations, responded by adopting their own measures to reduce immigration, in the manner of Arizona; these measures, too, had little impact.Footnote ⁵¹ And as the decisions of the Arizona state legislators to require that all the state's municipalities cooperate in immigration enforcement have shown, while some local governments and agencies have enthusiastically complied with these requirements, others have resisted efforts to crack down on undocumented immigrants.

In 1996, the U.S. federal government, whose policies had done so much both to generate the contemporary level of immigration and to combat various forms of discrimination against immigrants, began again to restrict immigrant rights, particularly with regard to social welfare entitlements and procedural protections against deportation. It encouraged, and in some ways compelled, the states to follow suit. In June of 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which expedited the exclusion, arrest, punishment, and removal of those suspected of being alien terrorists or criminals; it authorized a special removal court, limited the judicial review of deportations, sped up the timetable for deportation proceedings, limited the discretion of the U.S. Attorney General to admit or grant asylum to suspect aliens, and made many immigration law offenses subject to the expansive punitive measures authorized by the Racketeer Influenced and Corrupt Organizations Act (RICO) passed in 1970. Section 439 of the AEDPA also authorized state and local officials to assist the federal government in these endeavors.Footnote ⁵²

In August 1996, President Bill Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), ending the Aid to Families with Dependent Children (AFDC) program established in the original New Deal Social Security Act and replacing it with Temporary Assistance to Needy Families (TANF) block grants to the states. That law also made immigrants arriving after its enactment ineligible for all federally-funded, means-tested benefit programs, like TANF and Medicaid, for five years. States were required to enforce these restrictions. And the law denied new immigrants Supplemental Security Income (SSI) and food stamps altogether (though they could regain their eligibility by naturalizing).Footnote ⁵³

In September 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) increased resources for immigration law enforcement, further streamlined procedures to expedite exclusions and deportations, further limited the Attorney General's discretionary authority to grant entry to the needy via “parole,” banned Social Security benefits for undocumented aliens, authorized states to limit public assistance to aliens, mandated new data-collection on aliens (including requirements that educational institutions report on their foreign students), and authorized increased worksite investigations, among other measures. Its sections 133 and 372 specifically empowered states to play larger roles in immigration law enforcement.Footnote ⁵⁴

Consequently, when the Arizona legislature passed its recent measures requiring evidence of citizenship to vote, barring cities from granting undocumented aliens any public benefits and requiring their assistance in immigration enforcement, and authorizing police to stop and arrest persons suspected of being in the country illegally, it could and did claim it was seeking to comply more fully with existing federal policies that were failing to achieve their objectives, not to interfere with them. Again, the fact that the legislature also banned ethnic studies classes indicates that their concerns went beyond removing illegal aliens from their state. Yet it must be acknowledged that in doing this the legislature was expressing ethnocultural notions of who should be an Arizonan and a resident of the U.S. that the federal government had actively fostered in the past, and was arguably fostering again.

V. Toward Appropriate Policies and an Enabling Politics

Even if, as I contend, this history provides grounds for recognizing that the U.S. government has special obligations to Mexicans and Mexican Americans as a result of the ways it has coercively constituted their identities, values, and aspirations, the federal government also has special obligations to the states, local governments, and citizens most affected by immigration. Finding policies that can meet these obligations effectively, and building political support to enact them, are challenges. But it may help to understand the responsibilities these policies should seek to fulfill.

To summarize the “special obligations” case: by coercively taking the lands that many Mexicans inhabited, the United States created a population—Mexicans who remained on those lands—whose members had no choice but to accept U.S. authority and some form of membership in its community if they wished to continue living there. Both the U.S. and Mexican governments then mandated forms of economic development that cost many mestizo Mexicans and Mexican Americans their farms and left them laboring for U.S.-owned production, transportation, and agricultural enterprises, on both sides of the border, as their best economic opportunities. But the U.S. territorial governments also adopted mandatory policies that provided these Mexican and Mexican American workers with restricted political, legal, residential, educational, and economic rights and opportunities. And, most strikingly in the case of Arizona, the U.S. government actively pressured the Anglo citizens of those regions to create states that did the same. Those policies and restrictions persisted through much of the twentieth century, even as the national government began mandating an end to many forms of discrimination and encouraging various kinds of cultural accommodation, and even as its immigration and trade policies produced national revenues and economic benefits, while generating social policy costs that fell most heavily on immigrant-receiving states and locales.

It is perfectly understandable, if not indeed inevitable, that these past and present policies have generated large numbers of persons who in various ways feel themselves to be dual nationals—who value the economic opportunities available in the U.S., who endorse many official American values of human rights, social mobility earned through work, and democratic self-determination, but who also feel themselves to be part of Mexican cultural traditions and communities. Many see themselves as effectively compelled to seek homes and jobs in the United States; and while they wish to be productive, contributing residents, they also wish to maintain as much of their Mexican cultural identities and to maintain close ties to their relatives and ancestral regions in Mexico. They see and feel in these ways in significant measure because that is how U.S. policies, along with Mexican ones, have constructed their experiences in the world. In recent years, the Mexican government, perhaps for reasons of enlightened self-interest, has responded to their wishes and needs by making the adoption of formal dual citizenship more feasible, and by protesting U.S. and American state actions against Mexican immigrants. The United States government is if anything even more obligated to do the same.

But the U.S. government has also used its power to shape the identities, values, interests, and policies of the southwestern and western states and their officially “white” citizens. It long fostered beliefs that those states needed to be governed primarily by whites, even as its immigration and economic policies fostered (and continue to foster) the presence of many poorer Mexican and Mexican American laborers in those states. The resulting political tensions and social policy burdens must be seen as in part burdens the U.S. government has coercively imposed on these citizens and states, through the same policies that have produced Mexicans and Mexican Americans with aspirations for various forms of dual political, economic, and cultural citizenship. If the U.S. has obligations that point toward facilitating these dual citizenships, then it also has obligations to its states and localities and their citizens to help them resolve the economic and political challenges that such forms of citizenship would generate.

What policies might best respond to these conflicting imperatives? The United States, like most modern nations, has structured its immigration priorities overwhelmingly in terms of the perceived interests of its current citizens. Since 1965, American policymakers have decided this means giving priority to immediate family members, a criterion that favors Mexican immigration, and to persons with economically valuable skills, a criterion that favors the highly-educated and technically-skilled—groups to which most Mexican applicants for immigration do not belong. The U.S. also imposes a somewhat flexible overall cap on legal immigration that limits the numbers admitted under both criteria, and it caps the immigration that can come from any individual country as well. No country's citizens can receive visas in numbers exceeding 7% of the total permissible family-sponsored and employment-based entries; currently that number is 25,620.Footnote ⁵⁵ Nations with large numbers of applicants that can meet family-sponsorship and employment criteria, like Mexico, quickly hit their caps. Other nations with few recent immigrants to the U.S., or few skilled applicants, or both often fail to reach their caps.

Like the claim that the United States has some special obligations to Mexicans and Mexican Americans, these immigration priorities are legitimately controversial—there are reasonable arguments both for and against them that turn on a large number of empirical and normative considerations. The U.S. needs a comprehensive set of policies governing immigration and immigrants that balances competing claims via policies that can be both effective and politically sustainable; but discerning that set of policies is a huge task. Here I simply suggest some ways to translate the U.S. government's obligations that I have delineated here into policy.

Precisely because U.S. policies have done so much to make Mexico the most numerous source of both legal and illegal immigrants to the U.S., the U.S. has strong reasons to give explicit priority to Mexicans in the legal immigration queues. One way to do so would be to allocate a substantially larger number of visas of all kinds to Mexicans, abandoning the policy of applying the same cap to all countries, regardless of their past and present relationships to the U.S. or their numbers of applicants. This might be done without raising the overall immigration ceiling or otherwise altering immigration categories—though raising the overall immigration cap would increase Mexican legal immigration even further, as would changes in employment priorities to provide more visas for employable but less-skilled immigrants.

Whether permitting more Mexican legal immigrants in these ways would reduce the number of Mexican illegal immigrants can be debated, just as it is debatable whether denying birthright citizenship to children of illegal aliens would decrease or increase the illegal alien population over time. History gives ample evidence that the consequences of immigration policies are often unpredictable. The arguments for special obligations to Mexicans made here also inescapably imply special consideration for undocumented Mexicans already in the United States, probably including some viable paths to citizenship for those not guilty of any illegal activities (except their undocumented presence in the country). But what those paths should be, given the meritorious claims of legal applicants for immigration and naturalization—including especially other Mexicans—is philosophically and politically hard to establish. To give preference in immigration policies to Mexicans who have entered illegally over applicants from other countries who have followed legal processes would not be entirely fair. Yet doing so would bring the United States' official immigration policies more in line with what its actual immigration policies have been and are likely to remain, in ways that would recognize the special status of Mexican applicants that the U.S. has coercively created.

Similarly, the U.S. has a special obligation to facilitate the adoption of official and practical forms of dual Mexican-American political, economic, and cultural citizenship, as the Mexican national government has done, since the U.S. has done so much to constitute populations who have trouble conceiving of themselves as having meaningful identities and lives without access to those forms of citizenship. The U.S. is officially already receptive to dual political citizenship, despite the language of its naturalization oath.Footnote ⁵⁶ But its policies toward immigrants stand in striking and growing contrast to Canada's, in ways that Irene Bloemraad has found to be associated with much lower naturalization rates in the U.S.Footnote ⁵⁷ Canada offers immigrants courses designed to aid general language acquisition, especially language skills needed specifically in the labor market; job counseling and training; a Host program that links new immigrants with resident volunteers who can help with initial settlement; and funds for community organizations that provide a range of services to immigrants, including orientation, translation, interpretation, referrals to community resources, and para-professional legal and medical advice. It also gives grants to immigrant ethnic associations, offers funds for ethnic studies programs and the writing of ethic histories, and aids heritage language programs and other immigrant cultural activities.Footnote ⁵⁸

Establishing such initiatives and requiring state and local governments to assist in them would, however, further compound the economic, political, and social pressures generated in the major immigrant-receiving states by the Mexican immigration the U.S. has fostered. The United States therefore has obligations to help alleviate those pressures. For both political and policy reasons, it is likely that any measures to encourage increased legal Mexican immigration must be accompanied by credible efforts to enforce effectively the immigration limits that remain, such as heightened border patrols and more stringent employer sanctions. The U.S. government and taxpayers across the nation should also assume the lion's share of the costs of all immigrant settlement and assistance and social benefit programs, as well as enforcement measures and other policies affecting immigrants, rather than shifting many of those burdens to the states, as happened in 1996. The United States should also require that immigrant workers receive wages and working conditions that match those provided to native employees, as the Obama administration is urging, while trying to find more ways to generate greater economic opportunities and improved working conditions in Mexico, reducing economically-driven immigration to whatever degree proves possible.

Are these suggestions politically utopian? Perhaps; they certainly require the creation of favorable coalitions that do not currently exist. Yet there is more in place on which to build than may first meet the eye. Although the United States has powerful political traditions that support opposition to immigrants, especially those perceived as undesirable non-whites, it also has traditions that celebrate America as a haven for all immigrants, including ones in need. The Anglo-authored 1986 hit song invoked in the title of this essay, “Living in the Promiseland,” is a reminder that many Americans of all backgrounds can be moved by those traditions of immigrant receptivity. So is a 2009 resolution of the theologically and often politically conservative National Association of Evangelicals. Noting that immigrants “are made in the image of God and have supreme value with the potential to contribute greatly to society,” the resolution urged that “the government recognize the central importance of the family in society by reconsidering the number and categories of visas available for family reunification,” “establishing a sound, equitable process toward earned legal status for currently undocumented immigrants,” and “legislat[ing] fair labor and civil laws for all residing within the United States.” Although the NAE did not address Mexican immigration in particular, its resolution invoking biblical traditions of “grace to the foreigner” praised the “positive impact of multiple cultures on national life,” and policies supporting family reunification and pathways to legal status for the undocumented would disproportionately benefit Mexicans.Footnote ⁵⁹

Also, today's Latino organizations are more pro-immigrant than their predecessors, and they work in closer alliance on many issues with a range of other civil rights organizations. The same day that the State Legislators for Legal Immigration introduced their two model bills, Wade Henderson, president of the Leadership Conference on Human and Civil Rights, announced his association would act in concert with the NAACP, the National Council of La Raza, and immigrant groups to defeat what he described as efforts to “create two tiers of citizens, a modern-day caste system.”Footnote ⁶⁰ Latinos can expect to benefit from their membership in what Desmond King and I have termed the “race-conscious policy alliance” in American politics, and though it is not nearly so politically potent as its “color-blind policy” counterpart, it still poses a major challenge to measures hostile to immigrants, especially those who appear to be objects of racial and ethnic animosity.Footnote ⁶¹

Further, despite mounting concerns over Mexican immigration, many officials in national, state, and local government agencies still favor policies welcoming immigrants, strengthening immigrant rights, and facilitating many of the forms of cultural recognition that Mexican Americans seek. Over 50 state and local governments, for example, passed resolutions opposing Arizona's SB 1070.Footnote ⁶² One reason is that, as a result of modern immigration policies, and also anti-immigrant movements that have sparked heightened rates of naturalization and voting, Latinos represent the fastest-growing sector of the U.S. electorate, and they are increasingly being elected to local, state, and national offices.Footnote ⁶³ Though they differ on many issues, most Latinos oppose most policies hostile to Mexican immigrants and to aspirations to gain or maintain various forms of dual citizenship.Footnote ⁶⁴ Political leaders ignore these positions at their partisan peril.

Moreover, as Janice Fine and Daniel Tichenor have argued, although the American labor movement continues its longstanding internal struggles over immigration issues—particularly in regard to guest-worker programs—today labor overall is far more pro-immigration and pro-immigrant rights than ever before. Most unions recognize that the labor movement both in the U.S. and internationally needs to recruit service industry workers who are often immigrants, and few modern labor leaders wish to distance themselves from modern civil rights causes. As a result, rather than “a clear-cut division between restriction versus solidarity within organized labor,” today all sides in labor debates over immigration endorse “solidarity” and champion “immigrant rights.” The fights now are simply over “the best strategy to defend labor standards while welcoming new immigrant workers as the lifeblood of a revitalized labor movement.”Footnote ⁶⁵ In that context, Mexican Americans and Mexican immigrants can usually find labor allies at local, state, and national levels.

Finally, and perhaps most fundamentally for the political prospects of immigration reform, many influential American employers and economic conservatives continue to regard relatively unrestricted Mexican labor immigration as economically valuable, perhaps indispensable.Footnote ⁶⁶ Their power, which obviously remains substantial in American politics, is probably the chief reason why national policies sharply restrictive of such immigration have not been enacted.

Despite the current anti-immigrant and especially anti-Mexican fervor, it is therefore not inconceivable that a potent coalition could be built in favor of restructured immigration policies that would give greater priority to the legal immigration of Mexicans, perhaps even including Mexicans currently working in the United States without legal authorization but also without any other history of illegal conduct. The construction of such a coalition would surely be aided by challenges to prevalent notions of Mexican immigrants as undeserving intruders, and by political efforts to foster acceptance of the idea that the United States has special obligations to Mexicans and Mexican Americans—obligations that exceed those to many other immigrants whose identities and aspirations have not been shaped as significantly by America's coercive policies. The burden of this essay has been to show that there is much to be said in favor of recognizing such obligations.