Academic journal article Washington and Lee Law Review

From Plyler V. Doe to Trayvon Martin: Toward Closing the Open Society

Academic journal article Washington and Lee Law Review

From Plyler V. Doe to Trayvon Martin: Toward Closing the Open Society

Article excerpt

It is a distinct privilege and a high honor to be invited to deliver a lecture on your campus, in honor of Justice Powell - an esteemed graduate of your university and your law school, a Virginia gentleman capable of deep kindness and great tolerance, and a most distinguished (if initially reluctant) member of the Supreme Court of the United States, where he served for fifteen years.1 It is rewarding to know that the university houses Justice Powell's papers,2 which well document a judicial career in which he was a dominant figure, making majorities in an oftenfragmented Court, and standing courageously alone when he felt the need to do so.

I am much indebted to your colleague and classmate, Parker Kasmer, who has made it easy for me to be here, and I am grateful to the students for their civic act in inaugurating the Powell Lecture Series a decade ago.3 I know I am in good company when I take this place.

My topic tonight is a sober one, but I would like to begin on a more pleasant note: a story about Justice Powell that, in fact, I heard from a student when I visited this campus some years ago.

A student who sat next to me at dinner said his father was a friend of Justice Powell's, and during a visit to Powell's chambers, was strongly urged to send his son to Washington and Lee. The Justice was very enthusiastic about the college during that conversation. After the discussion moved on to other topics and then ended, the father left Powell's chambers. As he was walking down the corridor, Powell came swiftly after him, caught up with him, and again urged the father to make sure that the boy went to W&L. This time, though, he offered an argument that he must have felt would be most convincing: he ticked off the names of women's colleges and the exact number of miles each was from Lexington. The lad did not tell me whether that was the clincher.

May I turn, then, to my subject and start with an opinion written by Justice Powell almost exactly thirty years ago. It was a separate opinion in the case of Plyler v. Doe.4 The case had a secondary title, and it is far more descriptive: Texas v. Certain Named and Unnamed Undocumented Alien Children.5

Justice Powell's opinion6 speaks of an open society7 that, to my mind, no longer exists in this country for undocumented immigrants. You will know my sensitivity on this subject when I tell you that, as I write stories today about it, I refuse to describe such human beings as "aliens."

Still, the actual or threatened closing of an open society goes well beyond the fate of those who live in America without legal permission to be here. The trend is, for me, apparent in a variety of current policies and legal developments, perhaps very different from each other in fundamental ways but, in combination, moving people or ideas beyond the pale or, indeed, out of sight. We find it much easier to define something of which we are ignorant, or something that stirs fear in us, as necessarily to be excluded from our circle of acceptance.

Part of it has to do with the creation of pariah classes, pushed into the category of The Other.8 Another part of it has to do with the refusal to confront - openly and candidly - very deep wrongs. And part of it has to do with intentionally clogging or closing the channels of public discourse.

The phenomenon extends to the creation of a military garrison with wired enclosures at Guantanamo Bay in Cuba, in order to detain - perhaps for the remainder of their lives for some of them - a class of people we want nowhere near our shores and are unwilling to bring before our courts so that their fate might be decided justly.9

And it reaches to a fearsome prison outside of Kabul, Afghanistan, where we have chosen to place another group of people detained as terrorist suspects, precisely to put them beyond the reach of our nation's courts of law.10

Further, it reaches the impenetrable wall of secrecy that surrounds a national policy that is, slowly but perceptibly, turning the entire American intelligence apparatus into a lethal military machine that does not even exempt United States citizens from its retribution. …

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