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Threat of Dissent: a Reflection on Writing the Book I Wanted to Read

“The High Tide of Immigration – A National Menace,” by Louis Dalrymple, published in Judge, vol. 45, no. 1140, 1903, The Ohio State University, Billy Ireland Cartoon Library and Museum.

In June 2020, as COVID-19 ravaged New York City leaving no community, neighborhood, and apartment building untouched, including my own, I opened a large cardboard box and held my book in my hands for the first time. Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States is a legal, social, and political history of ideological exclusion and deportation, which I define as the barring and expulsion of foreign noncitizens from the United States based on their political beliefs, associations, and expressions. The book is a chronological narrative that traces this history, beginning with the Alien Friends Act of 1798 and ending with the War on Terror and the Trump administration. I argue that ideological exclusion and deportation laws exploited and scapegoated foreign noncitizens as the source of subversion in the United States. These laws also served as tools of political repression used to suppress the threat of dissent, such as criticism of politicians and policies, advocacy for reform or revolution, and challenges to the status quo and capitalism. This form of censorship has endured because the majority of the Supreme Court has interpreted ideological exclusions and deportations as an immigration issue, rather than a First Amendment issue, and thus, applied immigration legal doctrine insulating them from substantive judicial review and strict scrutiny.

A book that I had wanted to read when I began studying this unique intersection of immigration and First Amendment law and history.

Threat of Dissent had been a labor of love and the culmination of almost two decades of research that began in law school and continued in graduate school and after I obtained my doctorate. As I sat there in my tiny apartment holding this book, I recalled when I first became interested in ideological exclusion and deportation in the United States and how I was so determined to write an interdisciplinary book about it – a book that I had wanted to read when I began studying this unique intersection of immigration and First Amendment law and history.

During the early years of the War on Terror, I was a law student who enjoyed studying legal history, as well as immigration and constitutional law. I remember reading newspaper articles about visa denials to foreign noncitizen scholars seeking entry to the United States to teach at universities or speak at academic conferences. Some received little information about their exclusion while others eventually learned that they were barred under federal anti-terrorism laws. These scholars argued that they had nothing to do with terrorism and posed no actual threat to the United States. They were, however, critical of the War on Terror and US foreign and domestic policies and believed that they were excluded because of their ideas and identities.

Organizations including the American Civil Liberties Union, PEN America, and the American Association of University Professors brought a legal challenge to ideological exclusion during the War on Terror. They claimed that the ideological exclusion of foreign noncitizens violated the First Amendment rights held by those within the United States who wished to hear them, to interact and exchange ideas with them, and to learn from them. The First Amendment protected not only the freedom to speak and to associate, but also it protected the right to receive information and the right to hear.

Kleindienst v. Mandel (1972) was the legal precedent cited to support this argument and intriguing legal challenge to exclusion. It concerned the Nixon administration’s exclusion of a Belgian Marxist economist named Ernest Mandel in 1969 under the McCarran-Walter Act of 1952. The American professors who had invited Mandel to speak on their college and university campuses challenged his exclusion as a violation of their First Amendment rights. The Supreme Court upheld the Nixon administration’s right to exclude Mandel under the plenary power doctrine. This doctrine requires judicial deference to the legislative branch’s power to pass exclusion and deportation laws inherent in a nation’s sovereignty and right to self-preservation, as well as judicial deference to the executive branch and the federal officials who implement and enforce these laws. Yet, the Court also upheld the right of those American professors within the United States to challenge Mandel’s exclusion as a violation of their First Amendment rights. It not only provided a pathway to challenge the constitutionality of exclusions from the United States in the future, but also slightly curbed federal officials’ absolute, unchecked power and discretion to bar foreign noncitizens by requiring them to provide a “facially legitimate and bona fide reason,” which is the current legal standard applied in such cases.

Once I read Kleindienst v. Mandel, I knew I wanted to learn more about ideological exclusion and why it was seldom discussed in immigration and First Amendment law courses and college classes. After conducting more research, I found that ideological exclusions and deportations were firmly within both the history of immigration and of civil liberties advocacy and the evolution of First Amendment jurisprudence in the United States. I could trace ideological deportation back to the Alien Friends Act of 1798 and ideological exclusion back to barring anarchists as part of the War on Anarchy after the assassination of President William McKinley in 1901. I could find the use of ideological deportations during and after World War I, the Great Depression, and the Cold War. Ideological exclusions became tools of political repression used to suppress dissent and radicalism in the 1940s and 1950s, through both the Nixon and Reagan administrations, and in the twenty-first century during the War on Terror.

Once I read Kleindienst v. Mandel, I knew I wanted to learn more about ideological exclusion and why it was seldom discussed in immigration and First Amendment law courses and college classes.

What I did not find was a book about ideological exclusion and deportation. I wanted a book that traced ideological exclusion and deportation laws in the United States and placed them in historical context. I wanted to read a narrative that provided a discussion and analysis of the statutes and court decisions, and also described the legal and political dynamics behind ideological exclusions and deportations. I wanted a social history that included the voices of those who passed, enforced, and challenged these laws, and of those excluded and deported under them, like Emma Goldman, Charlie Chaplin, Graham Greene, and Carlos Fuentes.

Anarchist Emma Goldman’s mugshot taken in 1901. Bain News Service, George Grantham Bain Collection, Library of Congress, Prints & Photographs Division, LC-DIG-ggbain-00751. Goldman was ideologically deported in 1919.

So, I decided to write the legal, social, and political history of ideological exclusion and deportation in the United States that I wished had existed when I was in law school and graduate school. I would shed light on this consistent and continuous use of immigration restrictions to suppress dissent over the course of the twentieth century and into the twenty-first, which had somehow fallen through the cracks of immigration and civil liberties scholarship. To do so, I would draw on my training in history and law to craft a narrative that would be accessible to the public, as well as useful to students and scholars, with the ability to be incorporated by law and history professors into existing courses on immigration and civil liberties in the United States.

In order to write this interdisciplinary book, I knew I had to review congressional debates as well as court briefs, but also, and most importantly, I had to conduct archival research to learn more about the actors and organizations that shaped the history of ideological exclusion and deportation. It was through my research at the National Archives that I learned that the Nixon administration’s use of exclusion and deportation was part of its abuse of power to suppress dissent and to secure Richard Nixon’s reelection. After excluding Ernest Mandel, the Nixon administration had excluded writer and activist Shirley Graham Du Bois, the widow of W.E.B. Du Bois, from the United States and sought to prevent her from speaking on college campuses. The administration had also used immigration law as a tool of political repression when it tried to deport John Lennon because of his public expressions of dissent and criticism and his popularity.

The importance of using archival research and an interdisciplinary approach to tell the story of ideological exclusion and deportation in the United States became crystal clear when I located the revelatory documents that would illuminate the legal challenge and the Supreme Court’s decision in Kleindienst v. Mandel. If I had just read the Court’s majority opinion written by Justice Harry Blackmun and Justice Thurgood Marshall’s dissenting opinion, I would not have known that Marshall had changed his mind and switched his position. It was only through my examination of the papers of Supreme Court justices held at the Library of Congress, that I discovered a letter Marshall had sent to Chief Justice Warren Burger explaining the reason why he could no longer join or write the majority opinion to uphold Mandel’s exclusion. Moreover, if I had not read the litigation and correspondence files of the National Emergency Civil Liberties Committee and the oral history of renowned First Amendment attorney Leonard Boudin held at Columbia University’s Rare Book & Manuscript Library, I would have never been able to write about the development of the groundbreaking legal strategy to represent the American professors who had invited Ernest Mandel to come to the United States and to challenge Mandel’s exclusion as a violation of those professors’ First Amendment rights.

This interdisciplinary research also led me to realize that tracing this history from the Alien Friends Act of 1798 to the War on Terror was essential to understanding ideological exclusion and deportation laws in the United States and the challenges to these laws. While writing this book, I not only wanted the reader to reflect on the interconnection of restrictions, organizations, and people, but also to learn how the historical actors included in this narrative reflected on their connection to the past and its relevancy to their present experience of ideological exclusion and deportation. Those challenging ideological deportation and political repression during McCarthyism cited the Palmer Raids and the Alien Friends Act of 1798 as points of comparison, as they warned not to repeat the mistakes of the past. Those who denounced ideological exclusions during the Reagan administration cited exclusions during McCarthyism. I wanted each chapter to be able to stand independently, while also building on the previous chapter and setting the stage for the next one. This structure would reveal the persistent use of ideological exclusion and deportation laws as part of a long path of political repression, while also providing historical context and the roadmap of those who sought to challenge these laws.

 

 “PUT THEM OUT AND KEEP THEM OUT,” by Fred Morgan, published in Literary Digest, vol. 63, no. 4, October 25, 1919, Columbia University Libraries.

Presenting a chronological narrative, as opposed to a thematic one, enabled the book to highlight the continuities and consistencies of ideological exclusions and deportations and of the arguments for and against them over time. Laws passed to suppress the threat of dissent in one period were used, revised, and amended to exclude or deport foreign noncitizens decades later, and legal advocates turned to past precedent and struggled to circumvent it. Those who supported ideological exclusions and deportations argued that they were necessary to protect and preserve American institutions and democracy, while those who opposed exclusions and deportations argued that they undermined liberal, democratic values, restricted free expression necessary to self-government, and damaged America’s identity as a nation of immigrants.

While I had planned on ending Threat of Dissent in the War on Terror, I did not anticipate taking the narrative so close to the present, within a year of the book’s publication. As I finished the manuscript, I found that this long history of ideological exclusion and deportation in the United States was crucial to understanding extreme vetting under the Trump administration, including the Travel Ban (referred to as the “Muslim Ban”) upheld by the Supreme Court in Trump v. Hawaii (2018), as well as the use of social media to ideologically exclude at the border. While the targets of exclusion and the technology used to implement it had changed, the law, justifications, and motivations behind exclusion had remained the same. So, I not only pushed to include the extreme vetting during the Trump presidency in my narrative, but also the challenges to it, including public protests, litigation, and the National Origin-Based Antidiscrimination for Nonimmigrants Act (referred to as the “NO BAN Act”).

While the targets of exclusion and the technology used to implement it had changed, the law, justifications, and motivations behind exclusion had remained the same.

Three months after I held Threat of Dissent in my hands for the first time, I was still sitting in my tiny apartment in New York City, reflecting on how and why I wrote this book, but this time, I was not alone. I was a guest speaker describing my archival finds to students during their immigration law class conducted over Zoom. The incorporation of ideological exclusion and deportation into an immigration course, and our discussion of the legal precedent established in Kleindienst v. Mandel, its use in Trump v. Hawaii, and how knowledge of the past helps us to understand the present, was precisely what I had envisioned when I decided to write my book. It was at that moment that I knew that writing this interdisciplinary history had been worth it.

Knowledge of the past helps us to understand the present . . .

Julia Rose Kraut, JD, Ph.D., is a lawyer and historian living in New York City. She is the author of Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States (Harvard University Press, 2020) and was the inaugural Judith S. Kaye Fellow for the Historical Society of the New York Courts and an Andrew W. Mellon Foundation Fellow at the New-York Historical Society. 

 

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