Lenni Benson
Professor of Law, New York Law School

America and Immigrants: A Fraught History

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Immigration expert Lenni Benson says the notion that America once welcomed foreigners with open arms is a serious misconception. The ongoing debate over immigration has been a constant of the American experience

Lenni Benson

Professor Lenni Benson specializes in immigration law and political asylum and is nationally recognized in the field. In 2008 she was honored with other members of the Safe Passage Project and received the State Bar President’s Award for Pro Bono Law School Project. 1999, the American Immigration Lawyers Association named Professor Benson the outstanding professor in immigration law based on her contributions to the professional and scholarly development of the field and her role as a mentor of students and young attorneys.

Professor Benson was partner in the international law firm Bryan Cave LLP, where her twelve years of practice focused on immigration. She is an active participant in immigrant rights projects coordinated by the National Lawyers Guild and the American Civil Liberties Union, and she serves on the board of the Center for Human Rights and Constitutional Law Foundation and is a trustee emeritus for the American Immigration Law Foundation. She is currently the Chair of the Immigration Committee of the Administrative Law Section of the American Bar Association and is the President-Elect of the Immigration Section of the American Association of Law Schools.


Question: How have American attitudes towards immigration changed over history?

Lenni Benson: A few years ago there was a great cartoon, I think in the New Yorker, where you see some native people on the shore and out in the harbor come the big tall ships. One Native American says to the other, "I knew that immigration policy was something we had to work on." That's a little bit of a humorous approach but my first year in teaching in Arizona where I grew up—I was teaching at Arizona State, the course “Immigration Law.” There were Native American students in the class, and they seriously asked all of us and taught me to re-evaluate what we tell ourselves about immigration law.

We often talk about the United States being this open territory where everyone was free to come, where the land was ours for developing, and we forget that—even at the time of the founding of our country and the first western Europeans coming to the United States—there were negotiations with existing people and there were bilateral treaties, in negotiation about who could live here and who couldn’t.

I think another aspect of it is: we often think of our immigration history as two or three paragraphs in our eighth grade civics book. First came Columbus in the ships, then came the Pilgrims, and each story of the first European settlers in the United States has with it aspects of immigration limitation. So, for example, people coming [to live] with the Puritans were not anyone who wanted to come. There was an application process, people had to qualify, they had to be selected through the theocratic leaders of the puritans and their religious community, and if you didn’t come with the original puritan group and you wanted to join later—perhaps you were living in Rhode Island and you wanted to become part of the Puritan communities and Massachusetts, you had to apply and be vetted and be qualified much as we do with immigrants today.

So tensions quickly rose in those early religious communities about people who were maybe the second generation, not quite as committed to the Puritan way of life, or the mercantilism that was growing in the Boston area and other part of New England that was changing the migration patterns. So there’s always been debates about who we going to live next door, who qualifies to come.

Question: How did the Industrial Revolution affect U.S. immigration policy?

Lenni Benson: Sure. Again, when we say we're talking about immigration and the industrial revolution and the agriculture revolutions before, often the story is told as just the migration of the free laborer, the free white male or the people who could come. Of course, part of all immigration history in the United States is also forced migration, slavery. People subjugated to work here temporarily, such as in indentured servants or the convicts who settled briefly in the state of Georgia. But the industrial revolution, let's say post-Civil War, the birth of factories, [there was] greater need for labor, people living off some of the farms. We begin to have denser populations in cities and increased ability for ships to bring people from Europe in a safer, more economical method.

So the great period of American rapid immigration—we think of the Ellis Island experience, right? All the Europeans that were coming, the millions of people coming in that period. We often think of that as everyone was welcome, it was all positive. Sure people suffered as they were doing the passage, but once they settled in Boston or came to Chicago or found work in Chinatown in San Francisco, it was all good. But actually there’s always been great tensions about all migration populations.

One of the sad stories in my view of our history is that organized labor, early on, took the position that it was better to be pro-immigration controls and restriction rather than working to organize the new immigrants coming; their earliest, most grievous example is not today’s unions, but the organized labor groups or political groups of California opposing Chinese migration. The California delegates to Congress were successful in passing our first complete immigration ban—the Chinese Exclusion Acts—and there were several of them between 1880 and 1890s, but ultimately the motivations were rhetoric that you hear today. Things like, "These people come to this country but they don’t want to learn our language, they don’t integrate into our society, they don’t go to church, they will live ten men in a room in conditions no civilized man would live and work for wages that no honest American would work for." So that’s often stories you heard about Chinese; where you hear today about people from Mexico and Central and South America—that it’s an unfair competition to American labor.

Question: What characterizes the immigrants coming to America today?

Lenni Benson: So, let’s start with a proposition that in any historical period of migration, whether we're talking about the Irish coming in the 1830s to the 1860s—we often say the Irish came in response to the potato famine. Well, we can do that as a short hand, as a sound bite, but the actual stories are much more nuanced. And in any American economic history, you’ll know there are boom and bust periods.

So we have the growth of the railroads, the growth of factories, but there’s huge recession in 1893. There’s a collapse of markets again later, maybe the Spanish American War of 1898 was, in part, complicated and necessary by economic need. Ellis Island at its peak in the first ten to 20 years of the 20th century—so 1900 to 1920—we had enormous recessions post-World War I around the world. So when we think today and we think America is in a recession, some would say a depression—the world is in a recession, we can’t afford new immigrants, they’ll take our jobs. Again, that’s a truth that has been explored in immigration policy throughout the history or our county and all countries.

I’m not an economist, but like any good law professor I can read the economic literature and I can tell you there are arguments on any side. So there are economists who will say that, actually, when you are in a recession, having relatively open borders or having the ability to bring in labor and make sure that labor is paid fair wages—and we can have debates about the minimum wage or higher adversely affected wages—actually creates economic employment opportunity, helps your country rebound from a period of stagnation or economic depression.

They're similar to the debates that many people make to argue against a minimum wage. They say a minimum wage actually deters entrepreneurs from investing because the capital risks are too high. I wouldn’t go that far, but I do think there are many examples in history where it is immigrants, industry and the willingness to start at lower wages that has let industries develop, flourish and come back.

Recorded on: August 31, 2009