Editor’s Note: Steven Lubet is Williams Memorial Professor at the Northwestern University Pritzker School of Law and the author of “The ‘Colored Hero’ of Harpers Ferry: John Anthony Copeland and the War against Slavery.” The views expressed in this commentary are his own.
On this day in 1865 – commemorated now as Juneteenth – news of emancipation reached the enslaved people of Texas. The complete abolition of slavery, which became irrevocable later that year with the ratification of the 13th Amendment, meant the end of involuntary servitude and the beatings, assaults and torture that often accompanied it.
It also meant the end of forced family separation, in which children were wrenched away from their parents for the profit and convenience of the slaveholding authorities. We know from the surviving slave narratives that the legalized seizure of children was among the most dreaded incidents of American slavery. As one memoirist put it, the “bitter and cruel punishments … were as nothing to the sufferings I experienced by being separated from my mother.”
It is likely that no one celebrating the original Juneteenth could have imagined that family separation would again become officially authorized – in fact, required – by the United States government over 150 years later.
And yet here we are in 2018, watching the Trump administration forcibly remove children, including nursing infants, from their mothers, in the name of a “zero tolerance” policy toward illegal immigration. According to the Department of Homeland Security, nearly 2,000 children were taken from their “alleged” guardians in the past six weeks, so the adults could be prosecuted for the crime of crossing the US border illegally.
As explained on the DHS website, “The attorney general directed United States attorneys on the southwest border to prosecute all amenable adults who illegally enter the country, including those accompanied by their children.” When parents are “referred for criminal prosecution,” as DHS puts it, their children are “transferred” and “placed” with the Department of Health and Human Services.
But “transfer” is an altogether too delicate word for what actually happens, as children are either dragged screaming from their weeping mothers or, perhaps worse, taken by the subterfuge of bathing or photographing. “Placement,” is also a euphemism, as nearly 1,500 children have been shunted into a converted Walmart, while plans are afoot to construct a tent city for hundreds more in West Texas.
The inhumanity of this policy is evident even to those who have been charged with implementing it. In an interview with National Public Radio, Ryan Patrick, the top federal prosecutor for the Southern District of Texas, called the situation “heartbreaking.” “I have three little children of my own,” he said. “I’m not cold to these issues.”
Nonetheless, Patrick expressed his commitment to strict enforcement, as though he has no alternative. “Well, it is a policy choice by the President and by the attorney general,” he explained. There can be no exceptions for “an entire population of crossers just because they come in in a family unit or they have a child with them and we simply ignore them on the criminal prosecution. They’re still crossing the border illegally.”
In 1850, Congress was concerned about a different group of desperate “crossers,” who happened to be fugitives from slavery seeking freedom in the Northern states, or perhaps hoping to reach asylum in Canada. The resulting legislation was the Fugitive Slave Act, an early example of zero tolerance that required the expedited return of runaways to their masters.
Many public officials believed they had no choice but to cooperate with the Fugitive Slave Act. Even those who rejected slavery invoked the Bible as justification for compliance, quoting St. Paul’s injunction in Romans 13 that “every person be subject to the governing authorities” and “whoever resists authority resists what God has appointed.”
Or, as Attorney General Jeff Sessions put it, in the context of his family separation policy, “I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained the government for his purposes.”
In fact, many Americans in the antebellum era preferred other Biblical verses, including the command in Exodus that, “You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt.”
Following conscience rather than orders, law enforcement officers in Boston and Cleveland thus refused to collaborate in slave hunting and denied federal authorities the use of their jails (at a time when there were no federal lockups). The Supreme Court of Wisconsin in Ableman v. Booth defied the US attorney general by declaring the Fugitive Slave Act unconstitutional and ordered the release of a man who had been convicted for thwarting slave catchers. Eventually, the Fugitive Slave Act became nearly unenforceable in many parts of the North.
Patrick may believe he has no alternative to enforcing the Trump/Sessions policy. “We are following the law,” he told NPR, even though, “There’s going to be some situations that are going to be regrettable or that break your heart or – and it is unfortunate.”
But it is more than unfortunate: It is unconscionable. Here is what family separation leads to, according to one well-known observer: “‘Don’t leave me, Mama – don’t leave me’ screamed the child, as its mother was pushed harshly forward; ‘Don’t leave me; come back Mama,’ she still cried, stretching forth her little arms imploringly. But she cried in vain.”
The observer was Solomon Northup, the author of “12 Years a Slave,” describing the sale of human beings in the 1840s, but an eerily similar scenario is playing out today in the Southwest.
So, heartbroken prosecutors like Patrick do have a choice. They can resign. The entire zero-tolerance policy would become unenforceable if enough prosecutors and DHS agents – and perhaps even Homeland Security secretary Kirstjen Nielsen – would quit their jobs in the face of inhumanity. And Juneteenth would be the perfect day to start.