God and the Illegal Alien: United States Immigration Law and a Theology of Politics
Migrants and Citizens: Justice and Responsibility in the Ethics of Immigration
Not long before the last U.S. presidential election, on my pre-dawn bicycle ride to work, a companion Southern Californian road user in a car took umbrage at my having the audacity to signal to change lanes to turn left. Lit up like a Christmas tree, I was clearly visible, but my not staying to the side of the road irked this driver who, upon arriving at the red light jointly with me, wound down her window to upbraid me. I was asked why I was cycling illegally. I pointed out that I had every right to use the lanes of the road to make a turn. Upon hearing my English accent, I was immediately asked if I was a citizen. Answering in the negative unleashed an angry exclamation: “You immigrants are all the same. Always breaking the law.” The driver took a photo of me bedecked in my bright yellow helmet and reflective jacket, saying she would report me to the police, and drove off in a fury. I was shaken. As a one-off incident contrary to the privilege I normally enjoy (even with my accent), I was certainly not as shocked as others whose ethnicity or religious identity has occasioned verbal and physical attacks in order to send the “alien” “home.”
Now why is it that immigrants, non-citizens, and illegality co-exist for this early morning driver? Immigration is both headline news and fodder for partisan trolling. A young female runner is assaulted and killed, and the residency status of her assailant is the immediate focus of reports. Immigration officers extract people from courthouses because certain city police forces refuse to cooperate with Immigration and Customs Enforcement (ICE). Children are separated from families. A French teenage jogger accidentally wanders into the U.S. from British Columbia and is detained for two weeks. Beyond the U.S., pregnant Venezuelans travel to Brazil to give birth; Spain’s north African outpost, Cueta, has its gate scaled by the young and adventurous from multiple sub-Saharan African nations; and millions of the displaced occupy shadowy existences in refugee camps at national borders.
In a number of ways, both Tisha Rajendra and Robert Heimburger bring scholarly clarity to the present problems we have navigating the phenomenon of immigration in answer to this question of migrants, citizens, and legality. Both aim to give cogent reasons to change the way we imagine ourselves as participants in the conversations about immigration. Both commend a responsibility and empathy born out of the recognition of relationships. These relationships in turn sustain a better narrative that plots the migrant and the citizen as neighbor. Both books emerge from the discipline of Christian ethics, and the differences between them illustrate the generative breadth of the field. There are remarkably few shared references or sources despite the shared topic area. This is not due to flawed research, but rather points to the diversity of material that should be traversed in order to think Christianly about migration. Without nuance, we can claim that Rajendra draws on philosophy and sociology as foils to formulate a Christian theological position, whereas Heimburger turns to the discipline of law for his formative conversation partner with theology. Because Rajendra does such a good job of locating contemporary discourse, and because Heimburger unwittingly takes up the main charge of her book in fruitful ways, I review their arguments consecutively, starting with Rajendra’s Migrants and Citizens.
In her opening chapter, Rajendra recognizes that much Christian reflection on immigration has been driven by sympathies for Liberation Theology. She finds that although a preferential option for the poor is much to be lauded, when it comes to who among citizens actually bears responsibility for non-citizen migrants, the principles fall flat on the actual terrain of real-life questions. Equally flat-footed are attempts to address the struggles of migrants through human rights discourse. Such discourse cannot identify who has the responsibility to uphold which rights in the face of claims from those with contested standing at the margins of any given society. Rajendra is generous to her reader. Each chapter ends with further reading recommendations including short descriptions of each text, implying that the motivated reader can learn more and need not depend solely on her judgments in doing so.
Rajendra tackles the secular theories she finds lacking in chapter 2, “Migration Theory and Migration Ethics,” in which she sets out a wonderfully concise and insightful description of the different approaches to theorizing immigration in contemporary discourse. Some theories remain agency-centered, focusing on the individual rational choices that motivate migrants. Others are structurally oriented. Both fail to meet Rajendra’s concern for a true anthropology that accounts for the complex humanity of migrants. Her preference is for migration-systems theory that takes both individual agency and structural factors into account. Even so, the narrative of migration fails if it does not fully consider the historical embeddedness of patterns of migration. These patterns can only really receive appropriate recognition when the complexity of relationships of migrants to former migrants and citizens is reckoned with.
In chapter 3, Rajendra proceeds “In Search of Better Narratives,” telling the differing stories along the way of colonial, guest worker, and foreign investment- led patterns of migration. The North American Free Trade Agreement (NAFTA, now defunct) plays a large role in her account of the Mexico-U.S. migration history of foreign investment-led migration. The lessons of her account do not depend on the endurance of this piece of legislation, just as Germany’s guest worker programs or Britain’s post-colonial immigration, as historical phenomena, continue to influence present-day migration. Her conclusion is instructive:
The examination of the relationships between citizens and migrants leads to the critical insight about the central question of this book. The question of who has responsibility for migrants must take into account the fact that any discussion of responsibility is not starting from an abstract, neutral place free of the ties of history. Rather, the question of responsibility must be addressed from the reality that citizens and migrants have been in relationship with one another—often for a very long time. Though we did not choose these histories, we cannot dispense with them either. The central question facing the citizens of receiving countries is about how to respond rightly to these inherited relationships. (74)
My additional observation is that migrants who are not citizens, such as myself, are also the ones who face these questions in our countries of reception—not only in patient and empathetic recognition of the considerations of our hosts, but as fellow deliberators, and in the case of Christian ethics, fellow citizens with the saints in the household of God.
Because her goal is to provide a Christian theory of justice for the migrant, Rajendra also describes the ways her questions of the migrant among citizens is largely ignored by the political philosophy of the last half century. In her chapter “Theories of Justice in Global Perspective,” she classifies John Rawls as a social contract thinker, Onora O’Neill as a Kantian deontologist, and also describes Martha Nussbaum’s capabilities approach. What Rajendra finds lacking in the accounts of justice from such key thinkers is an account of responsibilities toward the migrant that are borne out in a specific direction by relationship. Justice for her account is “fidelity as responsibility to relationships” rather than an abstract theory.
In chapter 5, “Justice as Fidelity to the Demands of a Relationship,” Rajendra seeks to inform her Christian ethical sensibilities with Scripture. The chapter works well, and her reading of the Torah material is clearly presented. In particular, she focuses on the meaning of “ger” and the “gerim” in the law. Rajendra commends richer narratives, but her hermeneutic restricts her to fairly standard accounts of the migrant as “ger” from the Old Testament, because, in her judgment, the New Testament sees Christians as marginalized under oppressive imperial rule. The latter position of domination is much more like the present American context. A few pages are devoted to New Testament hospitality and ethnic inclusivity, but Rajendra finds that the Bible is at its most useful when offering up a parallel social situation akin to those of her readers whom she interestingly presumes to be settled citizens in a land needing to understand their citizenship in relation to migrants. (As an immigrant reader myself, I hope that she has many immigrant readers who contest that tacit assumption). The real problem of this reading of Scripture from the present to an analogous textual location, however, is that the norming authorization of Scriptural relevance is dictated by the circumstance and perspective of the ethicist. And in this case, Rajendra misses ways the Christian confession could take her deeper into the Exodus-Covenant logic of migrant care and on to the gospel life of the church in its full Scriptural shape. It seems to me a mistake to read sovereign states as analogous to Israel, and therefore to read the Torah’s law as legislation from a comparable bordered nation-state context in which such a state of affairs could support a theory of justice that happened to be God-oriented. Indeed, in the biblical re-narration that Heimburger will offer, an imaginative reading of Revelation, for example, shows that Christians, whatever their sociological position, found ample prophetic theological resources to imagine a civil order and judgments under the Lordship of Jesus notwithstanding social marginalization.
Rajendra begins her book suggesting that the parable of the good Samaritan is problematic for discussions of migration because it looks like a purely episodic chance encounter fostering dependence so cannot speak to norms for practical justice. In her conclusion, she re-visits the parable not as a universal example of charity, but this time located in the narrative complexities of the relationships between Jews and Samaritans, suggesting that the parable itself is a narrative already working to transform the imagination of both parties as mercy is displayed. Although her book cannot answer concrete questions of policy, it does provide the reader with a redefinition of the tired narrative that assumes it knows the identity of the “alien” without patience for the fuller story.
Rajendra’s conviction is that better narratives will resource contemporary conversation on immigration. Robert W. Heimburger sets himself the task to re-narrate how it is that the migrant comes to be spoken of as “alien” or “illegal alien” or simply an “illegal.” That is, he is engaging in the very narrative revision that Rajendra calls for. In this sense, these two scholarly works can be read as companion volumes.
In God and the Illegal Alien: United States Immigration Law and a Theology of Politics, Heimburger juxtaposes his account of the developing legal tradition with rich exegetical and theological investigation, fleshing out a counter narrative to that which is developing in the legal sphere. Ostensibly, these theological resources are always available to the church and would warrant a different imaginative mode of engaging the questions migration poses. While Rajendra develops a Christian theory of justice, Heimburger, in what I believe is a subtle but significant contrast, does not turn to justice but to judgment. That is, he traces the ways legal judgments and legislative acts have determined what it means to be found to be a migrant 315 in the United States. For example, in Part I, he traces a fascinating journey from seventeenth-century judgments in England under James I to the formation of American legal norms. One key case concerns the owning of property in England by a subject to the King of Scotland (James VI) who has now, by his liege’s succession to the English throne, become an English subject. Is he an alien or not? According to Heimburger, “alien” begins to function as the opposite of subject, although never alone. It is a qualified term, as in “alien born,” only later becoming “alien.” He explains, “Those from far away are made aliens, alienated and isolated” (39). But still nothing yet is meant in terms of legality of personal status, and certainly there is no implicit sense of the illegal or criminal. When Americans became citizens, and ceased to be subjects, the language of “alien” in law was kept, but sovereignty came to belong to the constitutionally ordered republic and not to a sovereign. So the inevitable development is that territory rather than rule can come to dominate the extent of sovereignty. Borders make aliens.
As theological counter-narrative, Heimburger turns to an extended exposition of Karl Barth’s account of the near and distant neighbor in his Church Dogmatics. This is joined to a recent theological commentary on I Corinthians by Brock and Wannenwetsch so that Heimburger can uphold the missionary-migrant character of the church as a counter to the settled identification of any Christian as statically a secular citizen who might need to “receive” “aliens.”1 Solidarity with the migrant is not just a function of remembrance of past exodus as in the Torah—a pious version of the claim that “we are a nation of immigrants”—but rather a reflection of present fundamental migrant identity of the Christian over against any sovereign nation’s claim to politicize all of life within its borders.
In Part II, Heimburger tells us that U.S. law only recognized “illegal immigration” in the 1980s. Nevertheless, he weaves a narrative through the cases of Chinese immigrants who fell foul of immigration acts of the late 1800s to establish when it is that crossing borders establishes one as an alien, insofar as governments claim to regulate and control the border. Thomas Hobbes and Emmerich de Vattel had set in motion a vision of the sovereign state as bordered for self-preservation, whereas another colossal legal figure, Hugo Grotius, saw justice arising not from self-interest but from the desire for community, whereby mutual aid rather than defensive walls is more in order.
Against this imagination of borders warding off vicious threats—along with Martin Luther, Jacques Ellul, Oliver O’Donovan, and Leo XIII—Heimburger argues that the guarding of place, as a task of government, is a necessarily humbled one. It is valid in the light of the kingdom of God and his coming eternal city, so the U.S. may exercise right in controlling its borders. A careful study of Deuteronomy allows Heimburger to conclude dramatically that the U.S. “risks losing control of its lands if it does not treat noncitizens with justice” (123).
For what is meant by justice here, Heimburger introduces the jurisprudential insight of William Blackstone. He employs the distinction, in Blackstone’s framing of the legal tradition, between malum in se and malum prohibitum—that which is wrong/evil/critical in itself and worthy of moral and possibly legal censure, and that which is subject to legal censure because prohibited although not wrong in itself. The obvious instance in the case of migration is the fact of happening to occupy space as a person on this or on that side of a border. Agreeing with Catholic Social thought that a person should have freedom to emigrate, Heimburger is really asking about the seriousness of the “illegality” ascribed to some migrants. He works out a number of case studies based on real events, and observes at one point, in view of assessment of harm through diffused relationships (Rajendra would be pleased), that a “government that displaces settled people who do not commit serious crimes is a government that goes beyond its remit, holding an excess of power over the persons in its lands” (145).
In Part III, Heimburger specifically focuses on the U.S.’s neighboring country of Mexico. Here the relational aspect mentioned above, which also drives Rajendra’s proposal, really kicks into gear. Study of the law, in very brief, shows that 1960s legal efforts to establish fairness of access to immigration to the U.S. gave equal treatment to all nations, thus disfavoring the one nation whose migration patterns are strongly and beneficially established, and, following both Rajendra and Heimburger, inevitably impossible to expunge. The Mexico border becomes— that is, is re-narrated as a site for illegal crossing. Heimburger, too, turns to the parable of the merciful alien, the good Samaritan, to show that Scripture invites individuals and communities to look to receive the mercy of the stranger in order to become neighbors:
In modern America, the divide between legal and illegal residents has a power akin to the divide between Jew and Samaritan in the parable. When women and men move across this divide to become neighbors, overcoming aversion and judgment, they are drawn into worshipping God. When men and women allow this divide to stand and avoid becoming neighbors, they neglect an opportunity to bring honor to Jesus Christ. Even those who care little for Jesus or believe in no god may find an experience of becoming a neighbor speaks of something beyond the ordinary. (199)
Let us note, finally, that Heimburger’s book title, God and the Illegal Alien, is at least misleading for those triggered by the use of the term “illegal alien” rather than, say, “undocumented migrant.” His critical explorations in the body of the book makes this clear, but it would be a pity if readers are lost for this reason.
Neither of these books proposes concrete legislation to transform the landscape of present immigration in the U.S. or elsewhere. But what we do find here, in very different tones, are carefully honed considerations of what needs to change in our collective imaginations, and integrated academic disciplines, to better narrate the story of migration. For the lives of migrants and citizens need not be alienated from each other.
Both of these books are timely and substantial scholarly and pastoral contributions to our contemporary discussions of immigration. Both are generous with case studies that give narrative depth and concrete location to their work. Both could be commended to serious thinkers among activists and laity who wish to engage issues of migration beyond the important popular books in the Christian press. An abundant Christian imagination needs both, as together their strengths will enrich participation in the intellectual task of discerning how to be neighborly as Jesus has commanded. As one defined myself as an alien residing in the U.S., I am grateful to both authors, acknowledging with Heimburger’s closing exclamation from Psalm 146:9a: “Yhwh keeps the migrants” (216).