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Floods and invasions: Immigration metaphors in the courts

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Does the way in which immigrants and immigration are referred to in the federal court system influence judicial outcomes, and the broader immigration debate overall? A fascinating analysis in the March issue of the Fordham Law Review examines the terminology of immigration in U.S. Supreme Court cases, digging into the rich array of immigration metaphors used in court.

The terms aren't typically flattering ones. There are documented references to toxic waste, floods, invasions, attacks and general alienage. One example from a case in the 1980s:

Writing for the 5-4 majority, Justice Sandra Day O’Connor radically altered the target domain of the poisonous tree metaphor. In contrast to criminal cases, in which pieces of evidence are viewed as tainted fruit that defile the courtroom, the metaphors of Lopez-Mendoza describe immigrants as tainted bodies that defile the nation. As Justice O’Connor wrote:

Presumably no one would argue that the exclusionary rule should be invoked to prevent an agency from ordering corrective action at a leaking hazardous waste dump if the evidence underlying the order had been improperly obtained, or to compel police to return contraband explosives or drugs to their owner if the contraband had been unlawfully seized.

Keith Cunningham-Parmeter, who wrote the piece, makes an argument for the ways in which language choices shape the broader immigration discussion, getting into the history of immigrant terminology in the courts and the legal and social consequences of simple words. He writes:
William Rehnquist referred to Mexican children as “wetbacks.” No one disputes that the future Chief Justice of the Supreme Court used the ethnic slur in front of his colleagues in 1981. When a shocked Justice Thurgood Marshall objected, Justice Rehnquist defended himself arguing that “wetback” still carried “currency in his part of the country.”

Justice Rehnquist would go on to author some of the most important immigration decisions of the late twentieth century. In those opinions, he did not refer to immigrants as “wetbacks.” Rather he employed a rich array of metaphors to describe a nation at risk. He wrote of “an avalanche of claims” coming from unauthorized immigrants. He described the fight against illegal immigration as a form of “‘national self protection.’” He argued that federal law must “combat the employment of illegal aliens.”

The larger cognitive frame structuring these statements might be described as IMMIGRATION IS A LOSING BATTLE. Illegal aliens are entering the country like an avalanche—dangerous, monolithic, overpowering, and unstoppable. Law enforcement officers are engaged in combat for national self-protection. In this metaphoric war, Supreme Court Justices become soldiers who must protect citizens against the impending alien offensive.

A growing body of research in cognitive linguistics demonstrates that human beings view the world in metaphoric terms. In attempting to comprehend new ideas, people borrow from familiar concepts. The metaphors floating in our minds determine our linguistic choices, which in turn affect social discourse and ultimately social action.

Thus, how we think metaphorically affects how we talk about problems and the solutions we formulate in response to those problems. This becomes a self- fulfilling prophecy: the more we repeat, circulate, and repackage certain metaphors, the more our conceptual domains become tied to a limited set of associations.

Among the citations in the article is “Brown Tide Rising,” a 2002 book by UCLA Chicano studies professor Otto Santa Ana, who dissected media coverage pertaining to illegal immigration, immigrants and Latinos in general in the Los Angeles Times and other media during the 1994 election year. It was that year that California voters approved Proposition 197, a ballot initiative intended to bar undocumented immigrants from social services that eventually failed to make it through the courts.

In the book, Santa Ana described a series of metaphors used in news stories at the time to describe Latino immigrants, among them “brown tide,” “human flows,” “human surge” and  “a sea of brown faces.” He wrote:

The major metaphor for the process of the movement of substantial numbers of human beings to the United States is characterized as IMMIGRATION AS DANGEROUS WATERS.

The entire law journal article can be downloaded here.