Session 9: Power at the Margins: Race, Ethnicity, and Immigration
Chair: B. Lara Lee

The Codification of Racism
Teri McMurtry-Chubb
Department of Law & Diversity, Fairhaven College at Western Washington University, Bellingham, USA

Through a historical exploration of Georgia's constitutional amendments, criminal codes and criminal sentencing provisions, this paper seeks to examine how autonomous political entities maintain their power over under-represented groups, and how these entities change their strategies over time to maintain power. It uses African Americans in the state of Georgia as its case study. Its starting point is the Thirteenth Amendment to the United States.
The passage of the Thirteenth Amendment to the United States Constitution in 1865 made the defeat of the South by the Northern Union final and binding. It reads simply that: "Slavery and involuntary servitude is unconstitutional except as punishment for a crime." The Thirteenth Amendment memorialized the efforts of slaves, free persons and other Abolitionists to bring about freedom and equality. While it was a blessing for free people of colour and the formerly enslaved, it was a curse for southern legislators. The theatre of the Civil War was the South, and as a result southern land was scorched and devastated, and the infrastructure was severely damaged. In short, southern states had much work to do but lacked a workforce that was legally compelled to do it. Almost immediately, southern legislators seized upon the opportunity to use the exception to the Thirteenth Amendment to their advantage. Using the exception, Georgia's legislators developed their state constitution and criminal codes to suit the South's present economic condition. Simply, the legislation that evolved in the mid to late 19th Century served to criminalize newly freed African Americans and incarcerate them disproportionately for use as free labour. These historical and legal changes that occurred in the 19th Century have shaped Georgia's criminal sentencing and capitol punishment laws well into the 21st century. The end result has been the disproportionate incarceration and capitol punishment rates for Georgia's African American community.

”Too Many Foreigners For My Taste.” Law, Race and Ethnicity in early U.S. California, 1848-1851
Fernando Purcell
History Department, Pontificia Universidad Católica de Chile, Chile

This history paper examines law and justice during the California gold rush of 1848-1851 and its relationship with foreigners. The paper will illustrate how law became a source of evil when applied to certain foreigners including Mexicans and Chileans. Anglo-Americans justified punishment handed out to Mexicans and Chileans in principles of natural law. In reality, however, legal procedures against certain foreigners embraced a strong sense of racial and ethnic discrimination since punishment of Anglo Americans and “white” foreigners had different connotations. This attitude led to infamous lynching actions including one where several Chileans had their heads shaved and their ears cut and the unusual hanging of Josefa, a Mexican woman. In these and many other cases, crowds who shared a similar racial ideology had an active role in influencing the decision of extralegal populace-appointed judges and juries.
The lack of strong and legitimate authorities—especially for the period 1848-1850 when California was not yet organized as State—could be seen as a factor that allowed the existence of what nineteenth-century California historian Hubert Bancroft defined as Popular Tribunals in order to make justice in the gold fields. A close look at post-1850 events and laws however, shows how even after the organization of California as State in 1850, legal authorities were surpassed by extra-legal organizations and even the State took actions to discriminate legally against non-white foreigners. Behind all these legal practices was a clear and widespread discriminatory racial ideology.
This paper combines the examination of many dynamics of law and evil in a crucial period of State formation in California . The lack of legitimately recognized authorities and the struggles for State formation, especially during the gold rush, gave space to the emergence of popular tribunals or extralegal groups, which used law and justice as an excuse to impose their own racial and ethnic agenda against undesirable foreigners such as Mexicans and Chileans. Law and its evil effects on “non-white” foreigners should be understood as part of a broad ideological project of racial manifest destiny in California during the mid-nineteenth century.

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Security and the Use of State Violence: Justifications and Limits in the Treatment of Asylum Seekers
Claudia Tazreiter
School of Sociology and Anthropology, University of New South Wales, Australia

In this paper I explore cruelty and violence institutionalised and practiced by states on the bodies of vulnerable people – in this case asylum seekers. In the area of immigration control, states are asserting their power over individuals who cross territorial borders with increased ferocity, often violently. Violent responses are particularly apparent in state responses to people who are smuggled or trafficked into a territory either seeking protection under the 1951 Refugee Convention, or, in the case of trafficking, people who are subject to various forms of exploitation, abuse and bondage. It has been asserted that the harmonization of strategies dealing with asylum containment are akin to the erection of an idealized or imaginary border around Western states. States have sought to increase measures of exclusion and deterrence of various groups of outsiders, including asylum seekers, through internal and external measures of control, coercion and violence. Asylum seekers are subject to being turned around at airports and land borders before they are able to make an asylum application; they are intercepted en-route to a country of asylum and returned to situations of danger; they are isolated in detention centres for significant periods of time; they are denied basic social and economic rights while a protection claim is assessed; and some are returned to situations of danger while they still have a protection need (refouled). We know from political theory that the modern state has the monopoly of legitimate physical violence, exercised through means of the military, overt and covert forms of surveillance and the legal/political order. A state has the power to present an individual with ‘unrefusable offers’, where coercive acts by a state are impossible to avoid by an individual. Indeed where state violence becomes embedded in law, and administrative techniques, non-compliance or resistance becomes impossible. In this paper I consider the consequences of state violence toward asylum seekers. I ponder whether links can be drawn between heightened international security concerns with increasing international terrorism, and the retreat from human rights protection by Western states. Moreover, what consequences can be anticipated from the more generalised erosion of social trust where state violence is recognised as excessive?