Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Natalie Behrends
Natalie Behrends is a rising senior majoring in History at New York University.
In a news cycle that seems to be characterized by the unthinkable and the unexpected, it comes as a surprise how consistently immigration comes up as a topic for debate and legislation. Recent months have seen immigration and immigration law crop up in debates over DACA, the DREAM Act, refugee bans, border walls, the isolation and detention of migrant children, and countless discussions over American identity in an age of uncertainty. Often, these stories throw into stark relief the vulnerable positions of those outside the US’s definition of citizenship.
In his 1958 dissent from Perez v. Brownell, former Chief Justice Earl Warren famously summed up citizenship as “man’s basic right, for it is nothing less than the right to have rights .” Warren was, perhaps unintentionally, borrowing a phrase from philosopher Hannah Arendt, who coined the term “right to have rights” in relation to citizenship in her 1949 article, “The Rights of Man: What Are They?” Arendt and others would go on to explore this idea of citizenship as the “right to have rights” in more depth throughout the next half-century, expanding our understanding of what citizenship is, and how it operates .
Crucial to Arendt’s understanding of “the right to have rights” was the idea that it was a “lost right,” something that only became apparent when it was gone . Only after someone’s citizenship rights have been violated is it possible, according to Arendt, to begin discussing what those rights were. Does this mean that we have to wait until some horrific event jars us into changing what it means to be a noncitizen in the US? An example from the early twentieth century suggests that there may be another kind of opportunity to talk about “the right to have rights,” and it is one with which Americans today are all too familiar—a debate over immigration law.
In the summer of 1924, amid nationwide debates over labor, nationalism, far-right radical groups, and the rights of women, Congress turned its eye towards immigration. The 1924 National Origins Act has gone down in history as the beginning of the infamous “quota system,” which restricted immigration into the United States based on an immigrant’s country of origin. Almost every country in the world had a set number of possible immigrants into the United States, calculated by taking twenty percent of the number of immigrants from that country already living in the United States according to the 1890 census. In fact, quotas were only a part of a system of control and selection established by the National Origins Act. Some immigrants were entirely exempt from the quota system. Professors, ministers and, ironically, any immigrants coming from Latin America were considered non-quota immigrants. Immigrants “skilled in agriculture” and the wives and children of current citizens were given preference within quotas. Students could only become exempt from quotas through personal approval by the Department of Labor. Asians were barred entirely, as they had been since the Chinese Exclusion Act. The Act’s systems of restriction and privilege proposed to shape the face of US citizens for decades to come.
During the House debate over the Act, it became clear that what the men of the 68th Congress were particularly interested in was what kind of people ought to be able to become citizens. A key part of the debate focused on the idea that every immigrant who came into the United States would eventually become a citizen. Representative Benjamin Rosenbloom of West Virginia suggested an amendment to the Act that would mandate that “an alien admitted to this country must become an American citizen within a specified period or return to the land from which he came .” “We do not welcome perpetual boarders whose interests may be elsewhere,” said Rosenbloom, and though his amendment was defeated, many in the Congress shared his understanding of the relationship between immigration and eventual citizenship. New York’s Benjamin Fairchild suggested instead that the Act “should admit no one into this country who...is ineligible to citizenship, ” and his suggestion was followed. Besides convicted criminals, the destitute, and Asians, the Act refused entry to any immigrant who for whatever reason would never be eligible for US citizenship. Congress fully intended for the immigrants who came into the United States under the National Origins Act to become citizens, and they used the Act to tailor the kind of people they thought ought to become citizens of the US. By bringing citizenship explicitly into the discussion, lawmakers inadvertently raised that exact question that Hannah Arendt believed was impossible to discuss outside of a humanitarian crisis. The debate over the National Origins Act was, at its core, a debate over who Congress believed should have “the right to have rights.”
In The Origins of Totalitarianism, Arendt wrote: “We become aware of the existence of a right to have rights...only when millions of people emerge who had lost and could not regain these rights because of the new global political situation ”. But the National Origins Act demonstrates that this “lost right” also appears when large groups begin not to lose rights, but to claim them. The debate over the National Origins Act in the summer of 1924 was a rare opportunity for American lawmakers to re-examine who in the United States should have the “right to have rights.” The solution may be to extend citizenship rights to immigrants in the United States, or it may involve a more complex re-structuring of the role of “noncitizen,” so that rights are not something only for citizens. This question is at the heart of every immigration law debate, and it means that for us, now, debates over DACA and the DREAM Act are a chance to discuss not simply stays of deportation or amnesties, but the very definition of what it means to have rights in the United States.
 Perez v. Brownell, 356 U.S. 44 (1958)
 Christoph Menke, Birgit Kaiser, and Kathrin Thiele, “The ‘Aporias of Human Rights’ and the ‘One Human Right’: Regarding the Coherence of Hannah Arendt’s Argument.” Social Research 74, no. 3 (2007), 741.
 Stephanie DeGooyer, Alastair Hunt, Lida Maxwell, and Samuel Moyn, The Right to Have Rights. New York: Verso, 2018, 22.
 National Origins Act of 1924, HR 7995, 68th Cong., 1st sess., Congressional Record 65, pt. 6, 6232-6233.
 65 Cong. Rec. 6227 (1924)
 Hannah Arendt, The Origins of Totalitarianism, New York: Harcourt Brace Jovanovitch, 1951, 296.
Photo Credit: Wikimedia Commons: Mstyslav Chernov
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
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