Southern Dreams and a New Theory of First Amendment Legal Realism

Abstract

When hundreds of thousands of Latino workers, many of them undocumented, began arriving in the South in the mid-1990s, looking for work, the region greeted them with open arms -- or, if not that, at least neutrally. This was no surprise, as they represented a source of much-needed labor in farming, food processing, construction, and the hospitality industry. The initial reception quickly turned sour, however, as each of the southern states enacted anti-immigrant statutes punishing practically everything that an undocumented person might want to do -- rent an apartment, enroll a child in school, seek medical services at a public hospital, or even get a ride from a friend. The laws were so far-reaching and draconian that a conservative Supreme Court struck most of them down, yet the anti-immigrant attitudes that produced them remained and make life difficult for Latinos in the South even today. Professor Jean Stefancic and I show how these anti-Latino attitudes originated in an early period in Southern history, just before the Civil War, when the region sought to create new states out of Mexico, Nicaragua, and many other Caribbean and Latin American countries by the simple expedient of invading them with volunteer armies led by Southern adventurers and mercenaries. The resulting states would naturally be Southern in outlook and pro-slavery, thus extending the life of that institution a little longer. We show how the cultural memory of this expeditionary ("filibuster") period lingered in the South and found outlet in the intense nativism that the abovementioned arrival of newcomers prompted. We also show how First Amendment formalism obscured how this happened and made it easier for nativists in the region to mask their motives and the consequences of their behavior.

Keywords: immigration, immigrants, nativism, equal protection, first amendment, legal formalism, civil rights, critical race theory, latinos, southern legal history