A Way Out of the Trap of Red v. Blue?

Immigration and the moralist historian

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Hi, I’m Alison Peck and this is How We Got Here, a journey through the history of United States immigration law with bulletins from the front lines of today, by a law professor and immigration lawyer.

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I never intended to study immigration history. But — counterintuitively — doing it helps me spring the trap of Red versus Blue that threatens to destroy our nation.

Practicing immigration law forced me to it. Sitting elbow to elbow with a person who has suffered extreme trauma and seeks nothing more than to live in peace, I have way too much occasion to feel furious at an immigration law system that throws up myriad roadblocks – both intentional and (maybe) unintentional.

The conceptual mismatches can be distressing enough. To take one example, asylum law protects Russians who oppose the war in Ukraine but not Ukrainians who flee the war, because asylum by definition involves persecution by one’s own government, not a foreign invader.

The second category of outrages – those that result from glitches in the system – can be maddeningly gratuitous. I have seen the Department of Homeland Security make flat-out mistakes in denying applications – overlooking evidence, miscommunicating with another agency, that kind of thing. There is no appeal. While the client can point out the error through a Motion to Reconsider, that costs $675 in filing fees. Those without pro bono counsel would pay hundreds of dollars of attorney’s fees and costs, too. Not everyone can afford it.

If I have to deliver news like this to someone earnestly trying to follow the rules to get here, I can’t help lying awake at night wondering How did we get here?

That’s why I started combing through the archives, peering into the minds and lives of the people who created this system.

But that quickly brings up another question: Why ask why?

Lord Acton and the Moralist Historian

Do we peer into the minds of past actors to judge their motives? If so, must we make those judgments in the context of the times in which they lived? If we fail to do so (or try but fail), do we really understand their motives at all? If we do take context sufficiently into account, do we let them off the hook for their moral failures?

These questions preoccupied – and eventually paralyzed – Lord Acton (John Emerich Edward Dalberg-Acton), the English Catholic historian and politician. In Victorian Minds, historian Gertrude Himmelfarb explored the dilemma that eventually ensnared Acton (whose lifetime (1834-1902) closely paralleled the years of Queen Victoria’s reign (1837-1901)).

Acton’s crisis began over the doctrine of papal infallibility. Acton, who observed the First Vatican Council in 1869-70, believed the Pope thrust the doctrine upon the bishops with machinations and manipulation. Those who dissented from the doctrine were excommunicated. Acton, a layperson, had a choice to leave the Catholic Church or to stay. He stayed, on the notion that departure over this one example of corruption would vindicate all past examples – including, most disturbingly, the Inquisition. He believed (as the Church herself taught) that the Church would eventually right herself by God’s grace.

The historian, Acton believed, stood aside from such events and thus shouldered the duty to bear ultimate moral witness. To forgive or to tolerate, as many of his contemporaries eventually did of the Church, was a greater sin than the one it failed to judge.

Acton’s contemporaries flatly disagreed. The typical historian of his day – Protestant, progressive, and Whig – had the practice (in the words of a classic essay by historian Herbert Butterfield) “to praise revolutions provided they have been successful, to emphasize certain principles of progress in the past and to produce a story which is the ratification if not the glorification of the present.”

This meant (in Acton’s view, at least) that they let the actors of history off the hook. As one of Acton’s students, G.M. Trevelyan, said of him, “I am more inclined than he was to make some allowance for the standards of an age and country in judging the culpability of individuals, who for the most part do as they see others doing.”

Acton the moralist historian could neither do as his contemporaries did nor, he knew, persuade them to his viewpoint. When even his excommunicated mentor appeared to pardon those whom Acton believed had succumbed to Church pressure, Acton felt utterly isolated. With no hope of influencing the historical discourse, he concluded, “I have no right to sacrifice to it my own tranquility and my duty of educating my children.” Though he lived another twenty-two years, he produced no other major works of history.

Alienation from Modern Alienation

We live in a very different age than Acton’s. Unlike the Whig historian, the modern Western historian (or citizen) teethes on alienation from authority. Himmelfarb viewed Acton as essentially modern in his statement of alienation; “[i]ndeed, more devastating, for he had not the consolation of a later generation for whom alienation itself has become a rite of fraternity.” (If only Acton could have lived to see the 60s.)

Himmelfarb’s essay about Acton gripped me immediately, because I saw much of myself in his dilemma (as she portrayed it). Raised by a mother who spent two years as a Franciscan novice, I share Acton’s conviction of an absolute moral Truth. That conviction, even more directly than the text of Matthew 25:35, drives my compulsion to do battle within the immigration system, which I cannot reconcile with any Christian understanding of morality.

But does my relative political liberalism undermine the moralistic duty of the historian, as I (and Acton) see it? After all, political conservatives today often reject liberalism’s credo of pluralism as a descent into moral relativism. If I tolerate your behavior (present or past) regardless of my view of its moral value, do I not abdicate any duty to stand as moralist? Indeed, this tension may underlie some of the more principled critiques of the “woke” left: that it tolerates every moral code except that which it judges to oppress some marginalized identity. The only thing morally unacceptable, to caricature this view, is being in the majority.

Immigration History and Moral Judgment

Fortunately, I see an out that Acton did not, perhaps because I stand on the opposite side of an ocean and a revolution from him. While I accept Acton’s conviction of an absolute moral Truth, I depart from him in supposing that I, he, or anyone else possesses access to it. Mankind is fallible; God knows all. Moral Truth, then, is something that can only be approached, not possessed, by human beings. And since no single person can see all dimensions, mankind stands its best chance of drawing near to moral Truth by approaching it collectively

When I explore history, I explore it for my own process of seeking moral Truth. When I share my observations in writing, I offer them for the reader’s examination while inviting (insisting, really) that they form their own judgment. The fact that none of us can know Truth individually does not spare us the duty of seeking it; just the opposite. Only through collective effort – by all actors of the past, present, and future – can we hope to approach it.

Red versus Blue: A Path Forward

When it comes to judging the moral actors of the past, like those who made our immigration laws, this viewpoint creates an escape hatch that poor Acton lacked. Because moral Truth exists, we must fight for our view of it, and that includes forming judgments of both the present and the past. But because no single human being (save one who died two millennia ago) can possess the key to absolute moral Truth, we absolutely must maintain humility in our judgments. If I lean Blue and you lean Red, that matters much less than our collective striving toward moral Truth.

For that reason, I lose all sense of time when I pore through the archives. For history will judge us too. Do we want to say that we neglected the lessons left to us by generations past? If we do that, what will history say of us?