Monday, July 16, 2018
There Is Nothing New Under the Sun - Xenophobia Edition
Part of this is recycled from something I posted (can it be?) on Christmas Day, 2007 over on Legal Profession Blog. At the time it was a tribute to my wife Alene's grandfather, Nathan Milstein, one of the longest serving lawyers in the history of the Michigan bar. (That is him on the left, Alene on the right, and our niece, Paris Franklin, in the middle.) The last couple paragraphs in that post prompt me to reprise much of it.
Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929. Nathan passed away in 2003, having continued to practice until his late eighties.
Nathan's practice in the 1930s included, among other things, immigration. That came up in a conversation Alene had with my colleague, Prof. Ragini Shah, who founded Suffolk's Immigration Clinic.
I am burying the lede here, so bear with me.
What prompted the post over ten years ago was the renewed interest in Diego Rivera and Frida Kahlo. Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude: their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts. We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to Nathan, who represented and befriended Rivera and Kahlo during their stay in Detroit. (Family legend has it that Kahlo made a pass at Nathan, but this is unconfirmed.)After Nathan passed away (at 96), Alene and I spent many hours going through his voluminous files. One truly appreciates the historian's and the biographer's art of distilling the story from the data when looking at records like these. The documents are tantalizing.
For example, Nathan was a bachelor until 1946, when he married Alene's grandmother, who was a widow with two children. Before that, he was supporting his mother and sisters. When the war broke out, he tried for years to find a way to serve without being drafted as a private (which in 1941 paid $21 a month, not enough to support the family.) Ultimately he found a job as a civilian flight instructor, but the file of letters and rejections to almost every branch of the military and government agency is about two inches thick. I have framed in my office my personal favorite: the letter signed by John Edgar Hoover advising Nathan he had failed the F.B.I entrance exam, which I had first interpreted as having been on account of Nathan's being Jewish while taking it.
Back in 2007, the interest in Rivera inspired me to go back through some of Nathan's files. What became clear was that it was likely Hoover objected to Nathan not only because of his ethnicity, but also because he consorted, in the course of his immigration practice, with all sorts of "undesirables," and espoused public positions to which the FBI director of long memory must have objected. (I like to think that Hoover's two issues with Nathan were related to each other.)
For example, there was a file of correspondence relating to his representation in late 1932 of one Halvard Lange Bojer, the son of noted Norwegian author, Johan Bojer. The younger Bojer, an engineer who had emigrated to the U.S. in 1928, was working for General Electric in Fort Wayne, Indiana, when he was arrested by the Immigration Service, and transported to the Wayne County Jail in Detroit, on the grounds that he was a member of the Communist Party. Bojer himself described it to a reporter as follows: "They tell me that I'm a Communist. . .It so happens that I'm a member of the Communist Party Opposition, whose headquarters is in New York. Members of that Party, though glad to take Moscow's advice, refuse to take Moscow's dictation. There are other differences, such as our belief that the worker's solution is in the organization of a Labor Party, comprised of Trade Unions, similar to that of England. Also, we disbelieve in Moscow's theory that existing labor organizations, such as the A.F. of L., should be wrecked for the formation of Communist units."
The American Civil Liberties Union attempted to intervene on Bojer's behalf. (I couldn't tell if Nathan was already representing Bojer or if the ACLU retained him on Bojer's behalf.) On December 12, 1932, Roger Baldwin, the ACLU Director, wrote to Nathan, urging Bojer to fight deportation as a test case. Baldwin stated: "The issue is far more than personal to him. This is the first case, so far as we are aware, when a member of his particular Communist group has been held for deportation on the ground of membership. It is worth fighting through because it offers a test of the application of the law to other than members of the Communist Party." Nathan met with Bojer in the Wayne County jail, where Bojer, "a very affable and highly cultured young man," advised that he had no desire to appeal the deportation, and was willing to return to Norway. He was released pursuant to a bond posted by his friends in Fort Wayne, and joined an "East bound deportation party" on December 29, 1932.
There was an interesting postscript to that story. Bojer's son or grandson (I don't remember which) in Norway somehow saw the blog post, got in touch with me, and I ended up sending him copies of all the papers.
So finally here is the lede, which was something of an afterthought in the 2007 post, but which in the past two years takes on relevance if not prescience. The files contained an excerpt from Nathan's tribute to Judge Arthur C. Denison on the occasion of his retirement from the 6th Circuit Court of Appeals in January, 1932:
Humanizing the enforcement of existing laws relating to admission and deportation of aliens has become a serious problem confronting social leaders throughout the country. In the present delirium of unemployment when a vague terror seizes the nation, this fear is translated into alien hatred. Public discontent must be directed away from the cause of the unrest and to accomplish this, a counter irritant is administered. The ever oppressed alien is again victimized. The term alien becomes synonymous with undesirable. Deportation "drives" and "spectacular raids" then become common occurrences. Wholesale deportation follows as a panacea for what ails the nation. This national hysteria influences the action of public officials and finds expression in more rigid and relentless enforcement of deportation laws. Even the courts are sometimes swept into the whirling cyclone, marring the annals of juridical science with unprecedented decisions. To espouse the cause of the under-privileged requires great courage. Those who bear the courage of their convictions and refuse to be swayed, belong to the school of Holmes and Brandeis. So few do they number that a loss in the ranks is keenly felt by liberty loving citizens.
And here's more.
The recent resignation of Judge Arthur C. Denison of the United States Circuit Court of Appeals for the Sixth Circuit is such a loss. As a student of social conditions, he has clearly recognized a festering condition to which the Congress of the United States has closed its eyes. Dwelling above the sound of passing shibboleths, he has refused to harken to the murmur of the moment. Recognizing that immigration statutes are very drastic and deal arbitrarily with human liberty, he has found it necessary to remind Immigration Authorities that aliens are human beings and as such have rights in any country in which they are domiciled, not under the principles of natural justice, but under the Constitution itself. Aliens help to create the wealth of our nation; they are subject to its laws and must comply with all its demands of taxation. Aliens, therefore, who have become part of our household and who have cast their lot permanently with ours, must be accorded the protection of law that is granted our citizens.
Very relevant today, Jeff. Great post. The heartening thing about Milstein’s files is how clear an impact he made on
his clients and for immigrant justice in general. Such a privilege to get to page through his notes!
Posted by: Ragini Shan | Jul 16, 2018 7:54:14 PM