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THE IMMIGRANT 

PLIGHT/IMMIGRATION LAW:  
A STUDY IN INTRACTABILITY 

 

ROBERT A. FERGUSON

 

 

Intractable problems, ones that defy solution because of conflicting lines of force, almost always require an 
outside catalyst for any movement toward an answer. This Essay explores intractability through two 
parallel historical moments of conflict: debate over slavery in ante-bellum America and debate over aliens 
in current America. Severe discrimination (based on difference, racial prejudice, communal identity 
formation, and larger psychological needs) deprives these disadvantaged groups of human rights and the 
protection of law. Nineteenth-century slavery and twenty-first century illegal immigration also share 
another quality. Both stimulate virulent forms of rhetorical excess that endanger the body politic and 
threaten the social fabric of an increasingly divided United States. The connection of law and literature 
offers a catalyst, an opportunity for a change in perspective through the power of fiction. As Harriet 
Beecher Stowe‘s novel, Uncle Tom‘s Cabin, forced recognitions of a common humanity against slavery, so 
Henry Roth‘s classic immigrant novel, Call It Sleep, indicates some of what is currently needed now. The 
synergy between legal and literary forms of address encourages a deeper realization, and that realization, 
in turn, raises a question about intractable problems in general. Can the rule of law, when law itself is 
questioned, respond through its equal partner, the right to free expression?  

 

I.        THE INTRACTABILITY PROBLEM DEFINED................................... 241 

II.       THE LINES OF FORCE EXPLAINED.................................................... 243 

III.      THE HOLDS OF PREJUDICE AND ASSUMED SUPERIORITY....... 244 
 
IV.      THE FAILURES OF IMMIGRATION LAW.......................................... 246 
  
V.       THE ROLE OF IMAGINATIVE LITERATURE IN LAW.................... 253 
 
VI.      CALL IT SLEEP: THE IMMIGRANT’S PLIGHT RENDERED........... 255 
 
VII.    THE SEARCH FOR ANSWERS................................................................ 261 
 
 
I.        THE INTRACTABILITY PROBLEM DEFINED 
Some intractable difficulties remain unsolved even though fully realized. They remain unsolved 

not because they lack solutions, but because the conflicting lines of force against answers are mutually 

                                                 

 George Edward Woodberry Professor of Law, Literature, and Criticism, Columbia University. Dina Hoffer, 

Alex Lemann, and Caitlin Smith all contributed to this essay as excellent research assistants. My colleagues at Columbia 
Law School made valuable suggestions during a workshop on an earlier draft. 



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reinforcing. As these lines of force compete with each other, they nonetheless join in a mutual 
assessment: nothing will change. A solution, if it is to happen, must therefore come from outside of the 
problem as currently understood. Either impending catastrophe or an alternative frame of reference 
must transform attitudes and stances taken.  

When it becomes necessary to compromise, everyone engaged in a relentless dispute naturally 
prefers the second option, an alternative frame of reference, but few combatants willingly recognize or 
fear the first option, catastrophe, until it is upon them, thus making the implementation of the second 
alternative twice as difficult. To come to a different understanding of an intractable problem, the people 
in conflict must see the need, and change more than the problem itself. Those who absolutely disagree 
must identify the problem in a fresh way, and this typically means they must do so through information 
already available to them. Severe problems do not solve themselves, but they commonly contain a 
submerged language of solution that another perspective can wield to advantage. 

Against intractability, the claims in this Essay are solution oriented. First, they propose that an 
alternative frame of reference can recover realities obscured by dispute. Second, they show that the best 
re-framers of reference seem to be touchstones or catalysts that do not change themselves but shift the 
focus in conflicting points of view. Finally, they show that Alexis de Tocqueville is only half right when 
he argues that disputes in America come down to a legal question.1 Tocqueville sees the centrality of law 
in disputes, but he misses a vital homology between legal and more familiar modes of discourse, namely 
that the catalyst needed for a solution often comes from outside of legal discourse. Law is a reactive 
mode; it is notoriously slow to change until pressure is put upon it. It follows that these first three claims 
lead to a fourth and larger one—the connections between law and literature (and other more popular 
forms of communication) can show us how intractable problems develop and even how they might be 
solved. 

The intractable issues of our times are not hard to find. They include gun violence, the drug 
epidemic, electoral imbalance, unwanted pregnancy, a collapsing infrastructure, economic recession, 
global warming, nuclear proliferation, war, terrorism, overcrowded prisons, serious pockets of poverty, 
urban blight, and the cost of medical care, among others. All of these issues draw public attention in 
mostly futile ways, but the most volatile and unreasoned debate of the moment involves immigration.  

Controversies over aliens in America have grown extreme and increasingly ugly in contemporary 
exchange. What it means to be a foreign person on American soil begins to disappear when a member 
on the floor of Congress can generate whole news cycles with the assertion that pregnant women have 
been flying in from the Middle East carrying ―terror babies‖ in their wombs that will ―destroy our way of 
life.‖2 Without communal reprimand, elected officials now say pregnant immigrants are multiplying rats, 
compare illegal aliens to the threat of Hitler, and say border agents should ―shoot to kill.‖3 

                                                 
1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (1840). 

2 Louis Buller Gohmert, Jr., U.S. Representative from Texas, 1st Congressional District, made this charge on 
the floor of Congress on June 24, 2010, and repeated it on the Anderson Cooper 360 television show, on August 12, 2010. 
Anderson Cooper 360 (CNN television broadcast June 28, 2010); see also Elise Hu, TX Rep. Louie Gohmert Warns of Terrorist 
Babies, TEXAS TRIB., June 28, 2010; Hu, Gohmert Debates ―Terror Babies‖ on CNN, TEXAS TRIB. Aug. 13, 2010. ―Terror 
babies,‖ denied as a problem by the FBI, derives from the similarly unrealistic concept of ―anchor babies,‖ which refers 
to the unsubstantiated assumption that illegal aliens are having their babies in the United States to obtain citizenship 
through them. 

3 State Representative John Yates of Georgia compares the threat from illegal immigration to the rise of Hitler 
in World War II and wants border agents to be free to ―shoot to kill.‖ State Representative Curry Todd of Tennessee 
calls pregnant illegal immigrants multiplying rats. See Charles M. Blow, Silliness and Sleight of Hand, N.Y. TIMES, Apr. 29, 
2011, at A21. Extreme views on the immigrant problem, all supporting the impossibility of ―sealing the border,‖ extend 
to the highest debates in the country as recent exchanges in presidential debates amply attest, and yet no contender for 



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Acrimony of this kind is dangerous far beyond its subject, one of many reasons for reducing the 
subject to analytical terms. Parts II, III, and IV of this Essay detail the objective cultural, political and 
legal lines of force that make immigration an intractable problem. Part V explains why literature, in its 
most flexible form, the novel, can be a catalyst for changing points of view. Part VI turns to the 
immigrant‘s plight through the lens of the most powerful immigrant novel in American literature, Henry 
Roth‘s classic Call It Sleep. Published in the dark year of 1934, Call It Sleep records the life of a bewildered 
Jewish boy from his arrival in the United States at the age of two until he is just eight years old on the 
lower East Side of New York City. Part VII, with the full plight of the immigrant in place, explores the 
dynamic required for a fresh perspective. It looks to the synergy between legal and literary forms of 
address where intractability sometimes yields to deeper realization. It asks a crucial question: can the rule 
of law, if law itself is questioned, respond to its equal partner, the right of free expression? 

II.       THE LINES OF FORCE EXPLAINED 

One can understand the anger in fights over immigration only by grasping the ideological 
contradictions at the core of the subject. Etched on the pedestal of the Statue of Liberty are official 
words from 1886 that greet new arrivals in the harbor of New York City. They read as follows:  

. . . ―Give me your tired, your poor, 
Your huddled masses yearning to breathe free, 
The wretched refuse of your teeming shore.  
Send these, the homeless, tempest-tost to me, 
I lift my lamp beside the golden door!‖4  

These words, placed figuratively in the mouth of the statue as ―The Mother of Exiles,‖ come from a 
solicited sonnet by the poet Emma Lazarus, and they offer an unqualified welcome to all who come 
without exception. Indeed, the more desperate the recipient of these words, the more urgently they claim 
to apply.5 

But does the assumed right to welcome also imply an alternative power to exclude, and if so, 
who gets to exclude and why? Subliminal processes are at work here. In a nation driven by the concept 
of property, no one questions the right of an owner to keep others off of privately held land. Nor, for 
that matter, does anyone deny the right of a government to bar those who threaten its understanding of 
itself. But how do these ideas extend into the common understanding of citizens who ―own‖ a country 
in a way that a new arrival does not? In normative if not legal terms, what is it about a conception of 
country that gives ordinary citizens the right to restrict conditions for an alien on common ground? Put 
another way, what has happened to Emma Lazarus‘s words on the Statue of Liberty? A politics of 
exclusion has denied the spirit of welcome to millions currently in the land, and it has created a helpless 
population out of many recent arrivals. There is now a huge underclass that cannot, in the words of ―The 
Mother of Exiles,‖ ―breathe free‖ anywhere in the United States.  Talk of a ―golden door‖ is shut to 
anyone in this category. Legal regulation has produced its own domestic category of ―wretched refuse,‖ 
and the people in it are treated in ways that would be thought unjust for anyone else in America. ―Illegal 

                                                                                                                                                             
the highest office is in favor of comprehensive reform. See Borderline Ridiculous: The Republican Presidential Candidates Get 
Immigration Wrong, N.Y. TIMES, Sept. 17, 2011, at A20.  

4 Emma Lazarus, The New Colossus, lines 24–36. 

5 The Statute of Liberty, a joint effort of France and the United States, dedicated on October 28, 1886, became 
a project in nationalist identity during the centennial celebration of 1876 in commemoration of the Franco-American 
alliance during the American War of Independence. Emma Lazarus‘s sonnet, written in 1883, was written for the statue 
still under construction at the time. Ironically, the Mother of Exiles ceases to fulfill that title in the very year, 1924, that 
she officially becomes a national monument in Liberty Park under the auspices of the War Department. In that same 
year Congress passed the first laws restricting immigration to the United States. See OSCAR HANDLIN, STATUE OF 

LIBERTY 61–65 (1971). 



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alien‖ describes twelve million souls in limbo in the United States.6 The very term is a crafted double 
negative and a pejorative slogan in contemporary political discourse. 

Both its parameters and the nature of the situation identify immigration as an intractable 
problem. First, you cannot forcibly remove twelve million illegal aliens now living regularly and peaceably 
on American soil without rending the ethos and republican fabric of the United States. Second, and in 
contradiction, a largely white, and now threatened, majority of Americans wishes that people arriving 
from new ethnicities would go away. Third, racial prejudice, as part of ―a superiority complex‖ in human 
thought, shapes many opinions on this subject.7 Fourth, hard economic times increase prejudice and 
vocational anxiety and threaten the assumed superiority of longer-term inhabitants even though recent 
arrivals fill low-end jobs that no one else wants. Fifth, immigration law has devolved into an 
acknowledged failure. No one trusts a system filled with contradictions and hypocrisies for all sides in 
dispute to see. 

III.      THE HOLDS OF PREJUDICE AND ASSUMED SUPERIORITY 

Prejudice based on human difference takes virulent forms in American culture. It is embedded in 
national understandings from the founding moment. The Federal Constitution of 1789 dignifies 
prejudice based on human difference through the institution of slavery. It assumes some people are 
intrinsically unworthy through ethnic distinction, an assumption that applies again to foreign-born 
arrivals during the waves of immigration of different peoples in the nineteenth and twentieth centuries.8 
Race and ethnicity are woven into the very fabric of this nation. Every required decennial federal census 
from the first in 1790 honors racially or ethnically classified distinctions as keys to American identity.9 

The point to be recognized here is the tenacity of prejudice assigned to human difference. The 
end of slavery in 1865 did not reduce prejudice against those freed from bondage; if anything, it seems to 
have exacerbated biases by threatening white hegemony. ―It is tempting,‖ writes Daniel Aaron in The 
Unwritten War, ―to read into the intersectional war a redirected or displaced aggression against blacks—

                                                 
6 Estimates of illegal aliens are necessarily imprecise and fluctuate according to economic conditions and other 

variables. Perhaps the most accurate figures come from the Pew Hispanic Center, putting the figure at 11.9 million in 
2008. See JEFFREY PASSEL & D‘VERA COHN, PEW RESEARCH CTR., A PORTRAIT OF UNAUTHORIZED IMMIGRANTS IN 

THE UNITED STATES 1–2 (2009). Other estimates vary between seven to twenty million illegal aliens in this country.  

7 The most articulate and extensive philosophical rendition of the superiority complex, also a celebration of it, 
can be found in the writings of Friedrich Nietzsche, all of which tie a will to power and the right to conquer the weak to 
forms of anti-Semitism. Nietzsche blames the Jewish mentality for the downward turn in Western history. For examples 
of the superiority complex and the prejudices behind it, see FRIEDRICH NIETZCHE, THUS SPOKE ZARATHUSTRA 62–63, 
202–20, (Thomas Common trans., 1917) (1885); FRIEDRICH NIETZCHE, BEYOND GOOD AND EVIL §§ 48, 62, 195, 210–
12, 258, 265, 293 (Marianne Cowen trans., 1955) (1885); FRIEDRICH NIETZCHE, ON THE GENEALOGY OF MORALS AND 

ECCO HOMO §§ 1.7, 1.9, 1.13, 2.6 (Walter Kaufmann trans., 1967) (1887); FRIEDRICH NIETZCHE, TWILIGHT OF THE 

IDOLS 102–03 (R J. Hollindale trans., 1968) (1888); FRIEDRICH NIETZCHE , THE ANTI-CHRIST §§ 2, 3 (R J. Hollindale 
trans., 1968) (1888). For a good analysis of the implications of prejudice and cruelty in Nietzsche‘s philosophy, see 
JONATHAN GLOVER, HUMANITY: A MORAL HISTORY OF THE TWENTIETH CENTURY 11–17 (1999). 

8 U.S. CONST. art. 1, § 2, distinguishes between ―free persons‖ and ―three-fifths of all other persons‖ for 
purposes of representation. Article one, section nine allows the importation of slaves. Article four, section two creates a 
fugitive slave law that treats a whole category of human beings as lost property. For a detailed account of the inequalities 
fostered by the Constitution, see ROBERT A. DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? 7–39 
(2002).  

9 For a recent in depth discussion of race on which this paragraph depends, see Kenneth Prewitt, Racial 
Classification in America: Where Do We Go From Here?, 134 DAEDALUS 5 (2005); David Hollinger, The One Drop Rule & the 
One Hate Rule, 134 DAEDALUS 18 (2005); Louis H. Pollak, Race, Law & History: The Supreme Court from Dred Scott to 
Grutter v. Bollinger, 134 DAEDALUS 29 (2005). Race and ethnicity belong to the same continuum of perceived 
difference with prejudice reaching across the categories at admittedly different levels of intensity. 



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outcasts before, during, and after the War.‖10 Those figuratively ―outcast‖ could be rejected because they 
belong to ―an alien black race.‖11 Discrimination in a country dedicated to equality depends on stark use 
of such words. To be ―outcast‖ and ―alien‖ justifies otherwise unacceptable levels of negative treatment. 
If you are in either category, you do not belong and are without full rights or legal protection.12  

The term ―outcast‖ pushes away. The term ―alien‖ excludes. Taken together, the two clarify the 
boundaries of an established society. They circumscribe the familiar order, protect the status quo, and 
encourage nationalistic expression based on omission. Sociologists argue that discrimination answers fear 
of outsiders by fostering ―group identification.‖13 When social standing is questioned, ―discriminatory 
behavior is perceived to be instrumental‖ in status formation.14 In more anthropological terms, groups 
stabilize themselves through ―rules of pollution‖ that keep others out. The definition of what one is not 
(and does not want to be) gives form to identity and worth by marking the unworthy.15 

History, sociology, and anthropology all point toward an innate impulse in human nature. The 
so-called ―inferiority complex‖ has been a concept in behavioral disorders and in popular culture from 
the moment the psychotherapist Alfred Adler coined the phrase in 1937, but its wide acceptance beyond 
professional ranks depends on an implicit polar opposite: ―the superiority complex.‖16 Identity formation 
differentiates itself by finding a category outside and preferably inferior to it. Everyone, it seems, needs 
someone or something to look down upon, whether through race, status, ability, class, ancestry, 
association, ownership, vocation, education, fortune, or family connection.17 

Pejorative use of these categories influences attitudes toward new arrivals and allows prejudice to 
become a barometer on immigration issues. Debate is then colored by a questionable but deeply held 
conviction: ―the pervasive tendency to regard people of different races as essentially different kinds of 
people,‖ a conviction that rarely distinguishes between designations based on physical perception and 
geographical origin.18 The ensuing confusion over racial definition renders debate sharp and misdirected. 

                                                 
10 DANIEL AARON, THE UNWRITTEN WAR: AMERICAN WRITERS IN THE CIVIL WAR 333 (1973).  

11 See LEWIS P. SIMPSON, The Civil War and the Failure of Literary Mind in America, in THE BRAZEN FACE OF 

HISTORY: STUDIES IN THE LITERARY CONSCIOUSNESS IN AMERICA 109–10 (1997). 

12 For the logic of how racial deprivation works in practice, see Derrick A. Bell, Jr., The Racial Imperative in 
American Law, in THE AGE OF SEGREGATION: RACE RELATIONS IN THE SOUTH 1890–1945 3, 3–28 (Robert Haws ed., 
1978). 

13 See generally Herbert Blumer, Race Prejudice As a Sense of Group Position, 1 PAC. SOC. REV. 3 (1958); Ryan D. 
King & Darren Wheelock, Group Threat and Social Control: Race, Perceptions of Minorities, and the Desire to Punish, 85 SOC. 
FORCES 1255 (2007). 

14 The quotations are taken from the leading proponent of group threat theory. See HUBERT M. BLALOCK, JR., 
THEORETICAL PROPOSITIONS, TOWARD A THEORY OF MINORITY-GROUP RELATIONS 204 (1967). 

15 Ian Hacking, Why Race Still Matters, 134 DAEDALUS 102, 114 (2005). 

16 See generally Alfred Adler, Psychiatric Aspects Regarding Individual and Social Disorganization, 42 AM. J. SOCIOLOGY 
773 (1937). For an account of ―the superiority complex‖ on which this paragraph depends, see Robert A. Ferguson , 
Historical Contingency and the Spirit of Law, in SESQUICENTENNIAL ESSAYS OF THE FACULTY OF COLUMBIA LAW SCHOOL 
70 (2008), available at http://cms1.runtime.com/null/download?&exclusive=filemgr.download&file_id=18371. 

17 To see the superiority complex at work in popular American culture today, one need only attend an athletic 
contest. More often than not, the athletes who win and their supporters will raise their forefingers in the air and chant 
―we are number one!‖ The practice is as pervasive as it is puerile and superficial, but it wouldn‘t happen with such 
regularity if it didn‘t bespeak a subliminal primal need about identity.  

18 Hacking, supra note 15, at 114. For a geographical emphasis on racial distinction, see CORNEL WEST, A 
Genealogy of Modern Racism, in PROPHESY DELIVERANCE! AN AFRO-AMERICAN REVOLUTIONARY CHRISTIANITY 47, 47–
65 (1982). For a cognitive approach to racial distinction, see generally LAWRENCE HIRSCHFELD, RACE IN THE MAKING: 
COGNITION, CULTURE, AND THE CHILD‘S CONCEPTION OF HUMAN KINDS (1996).  



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Contending voices grow especially shrill through yet another level of confusion that is not always 
recognized. An unresolved ideological concern divides debaters on immigration. Americans can never 
make up their minds whether homogeneity or difference is the main source of strength in the nation, and 
it is a disagreement too sensitive for leading political figures to address in a serious way. 

 The overall effects of these ingrained but confused attitudes on racial assumptions have 
enormous rhetorical significance. As overt expressions of racism become a taboo mode of articulation in 
public life, communal anger, fear, and uncertainty over human difference must find another terminology 
to express the same concerns. The result has been a quantum shift in contemporary political discourse. 
The new term of choice, one that serves conflicting purposes, is the word alien. To be alien today 
signifies more than simply not belonging; the term now means something unpleasant enough to convey 
racial expression without more being said. Never has this been as clear as it is today in the debates over 
immigration.  

 IV.     THE FAILURES OF IMMIGRATION LAW 

The failures of immigration law are often cited but its split nature is obscured by political 
rhetoric. New immigrants who arrive in a nation of previous immigrants suffer from the ironic plight of 
―half identity‖ in communal understandings. The average new immigrant enters the country as a low-
wage laborer in jobs that few citizens or longer-term residents want and look down upon. At the same 
time, the life of that worker beyond the workplace and the life of that worker‘s family are treated as side 
issues to be ignored when they are not dismissed, scorned, or ordered to assimilate as soon as possible. 

The emphasis on available labor also means money drives the legal wheel. Immigration law 
caters slavishly to economic trends. Prosperity leads to legal encouragement of immigration, while 
downturns, when jobs become scarce, demand legal discouragement with many immigrants caught in the 
transitions. Indeed, the institutional history of immigration law tells an even more ominous story. 
Congress created the Bureau of Immigration in 1891 and placed it under the Department of Commerce 
and Labor with encouragement of economic growth in mind.19 The Bureau was then moved more 
narrowly to the Department of Labor in 1913 with its more restricted focus on a cheap work force. In 
1940, under the threat of war, the Bureau, then the Immigration and Naturalization Service, moved into 
the Department of Justice where legality and restriction became its primary focus.20 

The story gets worse during the extended recession and wars of today. Alien workers continue to 
be needed but mostly for interim work, and to find that work they must qualify under hostile scrutiny. 
Reconceived yet again in the wake of the terrorist attack on the United States of September 11, 2001, the 
Immigration and Naturalization Service has been dissolved into three separate units and placed within a 
conglomerate known as the Department of Homeland Security.21 Institutionally, immigration law now 
ratifies its split personality—welcoming but rejecting—with a new emphasis. Surveillance against alien 
forces, the primary mission of Homeland Security, has become the raison d‘être of immigration law. 

                                                 
19 MAE M. NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA xx (2004). 

20 Id. 

21 Originally called the Office of Homeland Security, the Department was created by President George W. 
Bush on September 20, 2011, to ―coordinate a comprehensive national strategy to safeguard our country against 
terrorism.‖ A Nation Challenged on Terrorism, N.Y. TIMES, Sept. 21, 2001, available at 
http://www.nytimes.com/2001/09/21/us/nation-challenged-president-bush-s-address-terrorism-before-joint-
meeting.html. The former Immigration and Naturalization Service was reorganized within the Department of Homeland 
Security in early 2003. See Philip Shenon, Threats and Responses: The Borders; U.S. Arrivals Face Radiation Check, N.Y. TIMES, 
Feb. 28, 2003, www.nytimes.com/2003/03/01/us/threats-and-responses-the-borders-us-arrivals-face-radiation-
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Here is how the system now works. In what one commentator has called ―the Aesopian 
language of the immigration statutes crafted by legislators and bureaucrats,‖ immigration has been 
―trisected into separate entities‖ that work against each other. We have, first, the Bureau of Customs and 
Border Protection (CBP), which is to keep people out; second, the Bureau of Immigration and Customs 
Enforcement (ICE), which is to restrict entry to the country to legal immigrants; and third, the Bureau of 
United States Citizenship and Immigration Services (USCIS), which controls the transformation from 
registered legal alien to citizen while making it impossible for an illegal alien to gain that status. An 
explicit policy orientation exists in these lines of authority. CBP, ICE, and USCIS all report to the 
Department of Homeland Security‘s Undersecretary for Border and Transportation Services.22  

The very term ―illegal alien‖ represents a double negative within this legal construct. Original 
communal understandings of the word ―alien‖ include ―‗a person hostile to this country,‘ ‗a native of an 
unfriendly country,‘ ‗an enemy from a foreign land . . . .‘‖23 Each negative possibility leaps to mind when 
the adjective ―illegal‖ is added to the concept. In law, ―an alien is a person who is not a citizen.‖24 An 
accepted immigrant is ―an alien who comes for permanent settlement—a ‗legal permanent resident‘.‖25 
An unaccepted, or ―illegal‖ immigrant, on the other hand, is an alien who is ―unlawfully present . . . or 
who otherwise commits a deportable offense.‖ 26 

The word that qualifies the term ―unlawful‖ in these understandings is the adverb ―otherwise.‖ 
The distinction between mere presence and an overt act in conferring illegality disappears because of this 
adverb, especially when the connotations refer back to ―hostile,‖ ―unfriendly,‖ ―enemy,‖ or ―foreign‖ as 
definitions of ―alien.‖ All illegal aliens thereby become criminals at large, a danger to ordinary citizens, 
and a menace to be answered by governmental action. Lost in the linguistic shuffle are millions of 
harmless individuals who live in America trapped by legal restrictions that defy solution or even 
amelioration. 

Communal hysteria over aliens has popular sources as well. Concepts take on a life of their own 
in the saturation coverage of an image culture.27 And so it has been with the word ―alien.‖ Since 1979, 
blockbuster science fiction movies have featured the concept in titles and have tied the idea to vicious 
extraterrestrial and subterranean creatures, beings that destroy whole communities for no reason other 
than their innately foreign and malicious natures. These imaginary villains are the worst possible ―illegal 
aliens.‖ They move across the screen as serial murdering psychopaths who must be eliminated, and they 
get purged in movie after movie but always with a hidden residue left over for the next sequel.28 

                                                 
22 ROGER DANIELS, GUARDING THE GOLDEN DOOR: AMERICAN IMMIGRATION POLICY AND IMMIGRANTS 

SINCE 1882 261, 263–64 (2004). 

23 NGAI, AMERICA, supra note 19, at xix. 

24 Id. 

25 Id. 

26 Id. 

27 See DANIEL J. BOORSTIN, IMAGE: A GUIDE TO PSEUDO-EVENTS IN AMERICA 181–238 (1978). Boorstin 
argues that an image culture can be ―summed up as the shift in common experience from an emphasis on ‗truth‘ to an 
emphasis on ‗credibility.‘ All of us . . . are daily less interested in whether something is a fact than in whether it is 
convenient that it should be believed.‖ Id. at 212. It follows that ―public opinion—once the public‘s expression—
becomes more and more an image into which the public fits its expression.‖ Id. at 238. 

28 For popular movies within the ALIEN series that also connect with the equally negative idea of ―predator,‖ 
another form of alien, see generally ALIEN (20th Century Fox 1979); ALIENS (20th Century Fox 1986); ALIEN 3 (20th 
Century Fox 1993); ALIEN RESURRECTION (20th Century Fox 1997); PREDATOR (20th Century Fox 1987); PREDATOR 2 
(20th Century Fox 1990), AVP: ALIEN V.S. PREDATOR (20th Century Fox 2004), AVPR: ALIENS VS. PREDATOR-



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As such, alien movies thrive on racial claims that comport with the history of discrimination in 
immigration law.29 Both settings find and reject what is too different to accept. It is now generally 
forbidden to use racial slurs in public discourse, but parallel terms appear with obsessive frequency in 
alien movies and in many public objections to illegal aliens. In Hollywood marketing, a horrendous 
alternative life-form remains somewhere in American society to be rooted out. Because this being from 
another world often can assume human form, it holds audiences in a special way; viewers are encouraged 
to hate ―the temporary human‖ in racial terms unacceptable when used against a real world entity. 

The attraction in alien movies comes in this manipulative use of an intersecting vocabulary, 
which also informs rhetoric in the anti-immigration movements that have become powerful in American 
politics.30 As racism in public discourse becomes costly to its user, condemnations of aliens supply a 
coded substitute. Cinematic aliens absorb attention by inhabiting negative American feelings for 
everything alien and different. 

Reality then lends a hand by imitating fantasy on immigrant issues. In recent years, armed quasi-
military units along the Mexican border have risen from 2,000 to over 11,000 operatives using high-tech 
devices. Border Patrols close to Mexico deploy unmanned aerial vehicles named ―Predator Bs‖ to find 
illegal immigrants crossing the border.31 Everything about these teams and their weapons implies 
communal danger. 

It is quite deliberate that the term ―illegal alien‖ is central to national politics of fear and racial 
prejudice—so much so that it dominates public discourse even in locales where immigration is not a 
major presence.32 Governor Dave Heineman of Nebraska has made illegal immigration ―the defining 
issue‖ of his successful election campaigns and legislative agendas even though his state has no border 
problem, a low unemployment rate, and no population density issue.33 In Pennsylvania, legislators warn 
against the ―illegal alien invader.‖34 Frequent resort to a language of ―invasion‖ is especially significant 
here; it implies a country in the process of losing its identity. Conservative national commentators like 
Pat Buchanan and Lou Dobbs describe the nation as ―Mexamerica‖ on the way to becoming a ―Third 
World country.‖35 

Excessive rhetoric is the norm on immigration. Politicians in border states gain political capital 
by floating wild exaggerations on the subject. John McCain, seeking re-election to the Senate from 
Arizona in 2010, argued that illegal immigrants were ―intentionally causing accidents on the freeway.‖ If 

                                                                                                                                                             
REQUIEM (20th Century Fox 2007); PREDATORS (20th Century Fox 2010). These movies have spawned books, video 
games, spin-offs, and toys—all tied to the pejorative meaning of ―alien.‖ 

29 For the history of racism and the story of quotas in American immigration law, see NGAI, supra note 19, at 
21–55; see generally Mae M. Ngai, The Architecture of Race in American Immigration Law: A Reexamination of the Immigration Act of 
1924, 86 J. AM. HIST. 67 (1999).  

30 For the sometimes veiled but racist appeals in anti-immigration organizations, see Jason De Parle, Anti-
Immigration Crusader, N.Y. TIMES, Apr. 17, 2011, at A1.  

31 Ross Douthat & Jenny Woodson, The Border, ATLANTIC MONTHLY, Jan. 2006, at 54–55. 

32 For a full analysis of ―the psychology behind America‘s immigration fear‖ and its powerful influence on 
American politics, see John B. Judis, Phantom Menace, NEW REPUBLIC, Feb. 13, 2008, at 21–23. The acknowledged 
founder of modern anti-immigration movements, Dr. John Tanton, comes from an area in Northern Michigan that is 
ninety-four percent white, but that homogeneity has not stopped him from fearing a ―Latin onslaught‖ that must be 
checked. See De Parle, supra note 30. 

33 A.G. Sulzberger, Growing Anti-Immigrant Sentiments in an Unlikely State, N.Y. TIMES, Oct. 3, 2010, at A16.  

34 Julia Preston, Political Battle on Immigration Shifts to States, N.Y. TIMES, Jan. 1, 2011, at A1. 

35 Judis, supra note 32, at 21–23. 



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one were to dwell on that possibility for just a moment, the natural question to be asked is: why would 
fugitives who must hide engage in such activities? In the same campaign year, the governor of the state, 
Jan Brewer, described ―beheadings‖ and ―kidnappings‖ by illegal immigrants without a shred of evidence 
in support. When exposed, these fabrications did not keep Senator McCain or Governor Brewer from 
winning their elections on rhetoric against illegal immigration.36 

Demagoguery of this sort gains legitimacy through the failures and lapses of immigration law. 
Enforcement has not stopped an estimated 850,000 illegal immigrants from entering the country every 
year.37 In the identification of a problem of such threatening scope, the ambiguous meaning of 
―unlawful‖ when attached to ―alien‖—mere presence versus the need for an overt criminal act—allows 
the pejorative term ―illegal alien‖ to trump the official and more neutral designation, ―undocumented 
immigrant.‖ This represents a shift in terminology in keeping with failure to grant immigrants legal 
protections available to others in America.38 

The rule of law itself is stacked against immigrants. Constitutional precedent keeps them from 
using most legal protections and prevents them from gaining standing in federal court. Since 1889, the 
Supreme Court‘s ―plenary power doctrine‖ has left all policy and regulation to the political branches of 
government (Congress and the President) without the prospect of judicial oversight.39 With the judiciary 
tying its own hands, immigration debates are highly political and especially hyperbolic during election 
cycles.40 

Complicating these negatives are several others. Immigration law forbids an illegal alien from 
seeking legal status, much less citizenship.41 Roughly twelve million illegal immigrants, many of whom 
know only the United States as their home, live without access to the opportunities that the country 
offers to citizens and legal immigrants, and even more draconian restrictions are on the way. Frustrated 
by the failures of federal law, a number of states are seeking to place limits on undocumented immigrants 
by denying citizenship to children born of anyone in this category (so-called ―anchor babies‖), by 
denying driving licenses, by denying access to educational institutions, by denying health benefits, by 

                                                 
36 Gail Collins, The Great Undebate, N.Y. TIMES, Sept. 4, 2010, at A19. See also Interview with Jan Brewer, Fox 

News (FOX television broadcast June 16, 2010), as excerpted in Rachel Slajda, Brewer Falsely Claimed Immigrants Beheaded 
People in Arizona, TALKING POINTS MEMO (July 1, 2010, 6:43 PM), 
http://tpmmuckraker.talkingpointsmemo.com/2010/07/brewer_claims_illegals_are_beheading_people_in_the.php. 
(―We cannot afford all this illegal immigration and everything that comes with it, everything from the crime and to the 
drugs and the kidnappings and the extortion and the beheadings . . . .‖). 

37 Peter Skerry & Devin Fernandes, Citizen Pain, NEW REPUBLIC, May 8, 2006, at 14. The authors quote the 
figure of illegal aliens entering the country every year from The Pew Hispanic Center. For other examples of excessive 
political rhetoric based on the failure of immigration law, see Julia Preston, Political Battle on Immigration Shifts to the States, 
N.Y. TIMES, Jan. 1, 2011, at A1. 

38 For a good account of the problems in defining ―illegal alien,‖ see Gerald L. Neuman, Aliens as Outlaws: 
Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV. 1425, 1440–45 (1995); see 
also 8 U.S.C. § 1101; 8 U.S.C. § 1365(b); 29 C.F.R. § 500.20(n). 

39 The plenary power doctrine is first articulated in Chae Chan Ping v. United States (Chinese Exclusion Case), 
130 U.S. 581 (1889). For the history of these restrictions, see Hiroshi Motomura, Immigration Law After a Century of Plenary 
Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545 (1990). For restriction on the nature of 
court review, see Gabriel J. Chin, Is There A Plenary Power Doctrine? A Tentative Apology and Prediction For Our Strange But 
Unexceptional Constitutional Immigration Law, 14 GEO. IMMIGR. L.J. 257 (2000).  

40 For an account of irresponsible rhetoric regarding illegal immigrants during the presidential primaries of 
2011, see Editorial, Borderline Ridiculous: The Republican Presidential Candidates Get Immigration Wrong, N.Y. TIMES, Sept. 17, 
2011, at A20. 

41 See 8 U.S.C. § 1429; 8 U.S.C. § 1227.  



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denying any kind of work, by confiscating vehicles, by denying the right of contract, and by conducting 
police checks on anyone under ―reasonable suspicion.‖42  

The proposals demonstrate a purposeful insensitivity to basic human needs. By pushing illegal 
aliens more deeply into ―outlaw‖ status, the states urge them to ―self-deport.‖43 The strategies are overt, 
but beyond the momentary political leverage they give proposers, the new restrictions are as misguided 
as they are heartless. When Alabama in 2011 decided to pass harsh immigration laws that would make 
the state ―hostile territory‖ for illegal immigrants by demanding proof of citizenship or legal residency 
for such elemental needs as garbage pickup, school attendance, dog licenses, visits to the health 
department, contract reliability, and employment, many farm workers and people with children 
immediately went to other states, ―leaving rotting crops in fields and critical shortages of labor‖ in their 
wake.44 From those who stayed came calls from ―pregnant women afraid to go to the hospital, crime 
victims afraid to go to the police, and parents afraid to send their children to school.‖45 Even state 
lawmakers and executive officers soon had to admit that their actions had ―unintended consequences,‖ 
and a number of them urged that ―they throw out whole sections of the law.‖46 

Even for those who ―self-deport‖ there is still no answer. Leaving the state for another does not 
address the problem for receiving states, and most long-time illegal aliens have no other country to go to. 
―They are Americans in everything but a piece of paper,‖ as one member of Congress recently urged in 
seeking amnesty for illegal immigrants raised in this country.47 The new levels of legal restriction only 
compound an already difficult situation. Whatever people say or try to argue, it is impossible to remove 
twelve million people from the country and equally impossible to prevent undocumented immigrants 
from arriving. The land borders in the lower forty-eight states are too extensive to guard effectively. 
Those borders cover 5,525 miles, and it is hardly surprising that enforcement along Southern borders at 
a cost of $2 billion a year has not measurably slowed the flow of illegal entry.48 

Current immigration policies accomplish just one thing: they increase the desperation of the 
officially unwanted. Federal and state authorities will collaborate on a new program called ―Secure 
Communities,‖ which is a computerized fingerprint database of all entering legal immigrants. This 
program ―will soon turn every local police department in the country into an arm of Immigration and 
Customs Enforcement,‖49 an institution known by the winning acronym of ICE. Unprecedented 
surveillance by ICE has, in fact, caught illegal immigrants at even higher rates, often through casual 

                                                 
42 Preston, supra note 34; Marc Lacey, On Immigration, Birthright Fight in U.S. is Looming, N.Y. TIMES, Jan. 5, 2011, 

at A1.  

43 For a discussion of incentives for ―self-deportation,‖ see Neuman, supra note 38, at 1445; Kim Severson, 
Southern Lawmakers Focus on Illegal Immigrants, N.Y. TIMES, Mar. 26, 2011, at A13 (In supporting such a bill, South Carolina 
State Senator Lawrence K. Grooms declares ―the bill is intended to make South Carolina a very hostile place for those 
who are in this country illegally. Our hope is that they leave the country or go to a state where they are more welcome.‖). 
For a call for a more cooperative rather than an adversarial relation between state and federal regulation on immigration, 
see Cristina M. Rodriguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567 (2008).  

44 Campbell Robertson, After Ruling, Hispanics Flee an Alabama Town, N.Y. TIMES, Oct. 3, 2011, at A1. 

45 Editorial, Alabama‘s Shame: A Harsh Immigration Law Spreads Fear and Punishes the Vulnerable, N.Y. TIMES, Oct. 
4, 2011, at A28.  

46 Campbell Robertson, In Alabama, Calls for Revamping Immigration Law, N.Y. TIMES, Nov. 17, 2011, at A15; 
Editorial, Alabama‘s Second Thoughts, N.Y. TIMES, Dec. 18, 2011, at SR10.  

47 Representative Luis V. Gutierrez, U.S. Representative in Congress from Illinois, quoted in Julia Preston, House 
Backs Legal Status for Many Young Immigrants, N.Y. TIMES, Dec. 9, 2010, at A38.  

48 See DANIELS, supra note 22, at 226–27 (2004); NGAI, supra note 19, at 265–66. 

49 Editorial, Requiem for a Dream, N.Y. TIMES, Dec. 24, 2010, at A22. 



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encounters having nothing to do with their status or behavior. In 2010, there were 390,000 deportations 
of illegal immigrants, a record number but still no match for the much larger numbers gaining illegal 
entry into the United States every year.50 It is also true that deportation rates do not reach minimal levels 
of legal fairness. Those without lawyers have no chance, and for those who do, immigration judges 
―offer a scathing assessment of much of the lawyering they have witnessed in their courtrooms.‖51 

To personalize the impact of restrictive policies on undocumented immigrants, consider the 
plight of one after a minor fender bender in Gwinnett County, Georgia, in March of 2010. Although the 
accident was the other driver‘s fault, the blameless immigrant was incarcerated for twelve days for not 
having a driver‘s license that the state refused to issue her, and she had deportation proceedings started 
against her even though she had lived in the state as a model worker and assistant manager in a 
restaurant for seventeen years while raising two children who were American citizens. ―If they‘re here 
illegally in the United States,‖ insists the sheriff of Gwinnett County, ―they should be deported regardless 
of the charge.‖ The search in Gwinnett County includes Sunday check points near churches with 
Hispanic worshippers. 52 

Illegal aliens are not categorically criminals in a meaningful sense, but people who are barred 
from meaningful employment, who are kept from educational institutions, who fear surveillance at every 
moment, who face imprisonment and deportation if recognized, and who can never call on the law for 
protection must find ways to circumvent the rules of ordinary residents. When boxed in, human beings 
resist imposed restrictions.53 The stringency of current policies leads to a self-fulfilling prophecy. It 
results in a hidden permanent underclass of illegal aliens who will use illegal means to survive. Even 
worse, illegal aliens become a magnet for other crimes through their vulnerability to blackmail, fraud, and 
unchecked intimidation. 

Current immigration law thus creates what it wants to correct: crime. The pathos of this situation 
lies in the mounting numbers and the overall contradiction that no one wants to face. Unyielding 
negatives have created an intransigent problem of growing dimensions, and the hope for reform seems 
to exist only in the poignancy of individual cases that become newsworthy. Notably, one can ignore the 
enforced contradictions that many in an abstract category face, but it is harder to overlook the plight of 
an honest person in front of you who deserves assistance. Given a personal context, the problem 
becomes more apparent and encourages a solution.54 

For confirmation of these rhetorical tendencies, one need only look to Congressional debates in 
December of 2010 over the DREAM Act, which would have given legal status and a chance for 
citizenship to illegal immigrants brought to the country at a young age. The Act offering amnesty 

                                                 
50 Julia Preston, Immigration Vote Leaves Obama‘s Policy in Disarray, N.Y. TIMES, Dec. 19, 2010, at A35.  

51 Kirk Semple, In a Study, Judges Express a Bleak View of Lawyers Representing Immigrants, N.Y. TIMES, Dec. 19, 
2011, at A24; Editorial, For Want of a Good Lawyer: Deportation Without Representation, N.Y. TIMES, Dec. 25, 2011, at SR14.  

52 Julia Preston & Robert Gebeloff, Some Unlicensed Drivers Risk More Than a Fine, N.Y. TIMES, Dec. 10, 2010, at 
A1.  

53 The seminal theoretical work on the reflexive capacities of people to circumvent or break existing rules and 
laws when hampered is MICHAEL DE CERTEAU, THE PRACTICE OF EVERYDAY LIFE (Steven Rendall trans., 1984).  

54 See, e.g., Julia Preston, Deportation Halted for Some Students as Lawmakers Seek New Policy, N.Y. TIMES, April 27, 
2011, http://www.nytimes.com/2011/04/27/us/politics/27immigration.html. Olga Zanella, a Mexican-born college 
student in Texas, now twenty years old and brought to the United States when she was five, has been fighting 
deportation for two years after being pulled over by local police in February of 2009 for driving without a license and 
given over to immigration authorities. Local officers for Immigration and Customs Enforcement (ICE) have recently 
told her that she can remain in this country under the agency‘s supervision if she stays in school and out of trouble. This 
decision and others like it recognize that the federal government‘s ―deportations policy remains confused and erratically 
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received majority votes in both houses, but was stopped in the Senate by failing to reach the 
supermajority necessary to overcome a filibuster on the issue. Not coincidentally, those against the 
DREAM Act spoke in generalities about the will of the American people while supporters detailed the 
plight of individuals caught in the problem.55 

Is there hope in a personal focus on illegal immigration? Experts in legal inquiry agree that those 
with strong feelings on enforcement in the abstract often change their minds when faced with an 
intimate context or when they have more knowledge of a case.56 Can the personal extend to the general? 
When can an individual‘s plight begin to solve a strategic social problem? Case law sometimes works in 
exactly this way when an individual controversy leads to a major change in law, but here, the plenary 
power doctrine blocks salient immigrant issues from reaching the courts, leaving these decisions solely to 
the political branches of the government. 

If the personal in the immigration tangle is to succeed, it must find a forum beyond legal 
cognizance with comparable influence. In one hopeful sign, individuals at risk have begun to emerge 
from their legal twilight. Poster illegal aliens, young people who have succeeded in America, are 
becoming newsworthy. The stories vary but contain the same message. Isabel Castillo, now twenty-six 
years old, graduated from high school and from college magna cum laude but finds herself trapped in 
menial jobs as an illegal alien. She has turned to radio, town-hall meetings, and legislative hearings to 
challenge the law and ―hopes that if people get to see her close up, she will win them over.‖57 Maricela 
Aguilar, nineteen and here from the age of three, attends Marquette University on a full scholarship. 
Describing her ―coming out,‖ she reveals, ―I think losing the shame [of who you are] overshadows the 
fear. I‘d much rather clarify to the public that being undocumented is just a circumstance I find myself 
in.‖58 

The appeal of courageous individuals like Isabel Castillo and Maricela Aguilar is direct. They 
fight for the right to succeed on the terms that American aspirations hold dear through effort, enterprise, 
education, public assertion, and achievement. Neither of these ―undocumented immigrants‖ deserves to 
be classified as a criminal, and both argue for all who have been left in limbo despite achievement and 
skills that should lead to a secure life. In Ms. Aguilar‘s words, ―one day we‘re going to pass this, don‘t 
even worry about it.‖59 Why is courage the best term to apply to their stands? Both women live safely 
only as newsworthy figures. They know that media coverage gives ephemeral protection at best. 

                                                 
55 See Development, Relief, and Education for Alien Minors Acts of 2010, 156 CONG. REC. H8222–41 (daily 

ed. Dec. 8, 2010); DREAM Act, 156 CONG. REC. S8548-S8549 (daily ed. Dec. 6, 2010), 156 CONG. REC. S8660-S8661 
(daily ed. Dec. 9, 2010); and 156 CONG. REC. S10498-S10504 (daily ed. Dec. 17, 2010). 

56 The best example of this phenomenon can be found in people who advocate for the death penalty but refuse 
to support it if asked to do so in a particular case, or if they know anything about a defendant. ―Sometimes even the 
staunchest advocates for the death penalty from a philosophical standpoint, when you ask if they could put pen to paper 
and sign a verdict for death, they say they couldn‘t do it,‖ reports Frederick Benton, Defense Attorney in death penalty 
cases in Ohio. John Futty, Death Penalty Cases in Franklin County Becoming Rarer, THE COLUMBUS DISPATCH, Nov. 3, 2008, 
http://www.dispatch.com/content/stories/local/2008/11/03/cameron.ART_ART_11-03-08_A1_RMBPCE5.html. 
For pragmatic support of the phenomenon, see Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death 
Penalty Cases, 58 N.Y.U. L. REV., 299 (1983), and Michelle E. Barnett et al., When Mitigation Evidence Makes A Difference: 
Effects of Psychological Mitigating Evidence on Sentencing Decisions in Capital Trials, 22 BEHAV. SCI. & L. 751, 751–70 (2004). For 
an argument that more knowledge of the death penalty leads to objection to it, the so-called ―Marshall Hypothesis,‖ see 
Carol S. Steikert, The Marshall Hypothesis Revisited, 52 HOW. L.J. 525, 525–55 (2009). 

57 Michael Winerip, Dream Act Advocate Turns Failure Into Hope, N.Y. TIMES, Feb. 20, 2011, 
http://www.nytimes.com/2011/02/21/education/21winerip.html. 

58 Julia Preston, After a False Dawn, Anxiety for Illegal Immigrant Students, N.Y. TIMES (Feb. 8, 2011), 
http://www.nytimes.com/2011/02/09/us/09immigration.html. 

59 Id. 



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A well told story can have a longer lasting effect. At least once in American history such a story 
has achieved canonical status by answering serious legal injustice. In Uncle Tom‘s Cabin (1852), the 
bestselling book in nineteen-century America after the Bible, Harriet Beecher Stowe describes Senator 
John Bird as one who has proposed and then lived as a complacent supporter of the fugitive slave law. 
Suddenly, however, Senator Bird breaks that law by helping a frantic slave and her child to escape when 
they arrive on his doorstep.60 

Reading about Senator Bird, many in the nation began to change too. Until this moment, the 
Senator‘s ―idea of a fugitive slave was only an idea of the letters that spell the word.‖ Stowe‘s story 
transforms this abstraction into ―the magic of the real presence of distress.‖61 For most Americans the 
idea of an ―illegal immigrant‖ remains just such an abstraction. A more concrete understanding may well 
depend on finding new magic in the presence of distress. 

V.        THE ROLE OF IMAGINATIVE LITERATURE IN LAW 

The ability of fiction to influence legal decision-making is rare, but it does happen. Truman 
Capote‘s non-fiction novel In Cold Blood from 1965 offers a modern example. Critics argue that the 
sympathetic portrait of a condemned man in its pages and Capote‘s graphic rendering of actual 
executions contributed to the temporary ban on capital punishment in the United States between 1972 
and 1976.62 That said, In Cold Blood also typifies the cross-purposes at work in the relatively new scholarly 
discipline of law and literature. Any discussion of influence should acknowledge that the legal figures 
who worked on the case and who appear in Capote‘s book all objected to his versions of the criminal 
investigation, trial, and execution.63 

The tensions between law and the treatment of it by imaginative literature are inevitable ones. 
The law seeks justice before an obligatory audience. Imaginative literature reaches a voluntary reader by 
exposing injustice. The law works through calibration; it eliminates extraneous elements for a decision on 
narrow grounds. Literature seeks ever-expanding awareness. Everything it presents is contingent. A legal 
decision drives toward a single goal. The text of the novel mimics multifaceted Latin origins. The word 
textum means ―web,‖ or ―woven fabric,‖ ―a framework‖ made up of joined strands.64 

The differences become clearest through the concept of ―standing.‖ To appear before the law, 
someone must have ―sufficient stake in a justiciable controversy to obtain judicial resolution of that 
controversy.‖ There are many hidden variables in this short statement. A litigant must be ―adversely 
affected‖ in a proper jurisdiction with ―a personal stake in the outcome‖ of ―a legally protectable and 

                                                 
60 HARRIET BEECHER STOWE, UNCLE TOM‘S CABIN OR, LIFE AMONG THE LOWLY 141–61 (1986). Ann 

Douglas, in her ―Introduction‖ to this edition gives the best-selling status of the novel. Id. at 7.  

61 Id. at 155–56. 

62 See, e.g., David Galloway, Real Toads in Real Gardens: Reflections on the Art of Non-Fiction Fiction and the Legacy of 
Truman Capote, in THE CRITICAL RESPONSE TO TRUMAN CAPOTE 144 (Joseph J. Waldmeir & John C. Waldmeir eds., 
1999). In Cold Blood plainly contributed to a shift in public opinion that led to the temporary abolishment of the death 
penalty in the United States.‖ Furman v. Georgia, 408 U.S. 238 (1972), created the ban. Gregg v. Georgia, 428 U.S. 153 
(1976), lifted it for states that introduced a separate penalty phase in capital cases. Upton Sinclair‘s novel, The Jungle, in 
1906 had perhaps a clearer and more immediate legal impact, though on legislative law-making rather than directly on 
the courts. Sinclair‘s description of corruption and unsanitary conditions in the meatpacking industry led to the Meat 
Inspection and Pure Food and Drug Acts of 1906. See James D. Hart, THE OXFORD COMPANION TO AMERICAN 

LITERATURE 435 (Phillip Leininger ed., 4th ed. 1965). 

63 For an account in which the legal authorities described in Capote‘s book react against it, see George 
Plimpton, Capote‘s Long Ride: Thirty-Two years after the Publication of ‗In Cold Blood,‘ the Rest of the Story Comes Out, NEW 

YORKER, Oct. 13, 1997, at 62, 64–71.  

64 THE OXFORD POCKET LATIN DICTIONARY 139 (James Morwood ed., 2d ed. 1994).  



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tangible interest.‖ This personal stake must also involve a matter that has ―matured or ripened‖ with 
―sufficient immediacy and reality‖ over ―a controversy worthy of adjudication.‖ All of these lock-step 
elements—a clear right in a specific legal conflict before the proper court when the conflict is worthy 
and ready to be resolved—must be present ―to take the initial step that frames legal issues for ultimate 
adjudication.‖65 

Everything, no matter how helter-skelter, has standing in a novel. Nothing in fiction is ever by 
accident. Even the smallest details and distinctions count. By conflating fact with fiction, the novelist 
crafts an artificial conflict until it becomes believable to a reader. The law must grapple instead with the 
arrival of a messy event that must be deciphered a certain way in court. Of course, the dramatic 
advantages that the novel seems to have also depend on the license that lack of official power gives it. 
The law declares and answers. Fiction can only amuse or persuade. In law, fiction typically persuades 
through an injustice that the law has failed to see, found to be without standing, or thought to be unripe 
for decision. 

The ways of talking about the interactions of literature and law can also be verbose or confusing 
as well as helpful. The connection between law and literature can refer to ―a culture of argument‖ in 
which justice becomes a ―translation‖ across fields of inquiry.66 Another method of discussing the 
interaction between the two fields is that it can be ―a witness to crisis.‖67 It can set a scene of ―poetic 
justice‖ that ―constructs empathy and compassion in ways highly relevant to citizenship‖ and ―public 
reasoning.‖68 It can even illuminate ―the ideals of impersonality, neutrality, and objectivity that inform 
the law,‖ while suggesting ―a template . . . when the legal system breaks down.‖69 More dialectically, the 
relationship between law and literature welcomes ―cross-examinations.‖70 

All theories on the subject agree, however, on one basic premise. Fiction on a legal issue thrives 
on what has gone wrong. The connection succeeds when it can make the law see a problem that it has 
not solved. Senator Bird, the legal agent in Uncle Tom‘s Cabin, comes alive when he accepts his own role 
in an injustice that should be rectified because it is suddenly in front of him. The direct confrontation 
and the fact that he risks his own life to do the opposite of what he had previously claimed to represent 
drive the account. Nevertheless, the transfer of his realization to a reading public depends on something 
else. It depends on the power of the story told—the only power that fiction really has. 

Walter Benjamin explains this power by claiming that the ―story contains, openly or covertly, 
something useful.‖ ―The storyteller is a man who has counsel for his readers,‖ where ―counsel woven 
into the fabric of real life is wisdom.‖ Benjamin distinguishes carefully here between information (―It 
lives only in the moment‖) and story (―It does not expend itself.‖). In effect, story remains permanently 
available. ―It preserves and concentrates its strength and is capable of releasing it even after a long 

                                                 
65 ―Standing to sue doctrine,‖ and ―Ripeness doctrine,‖ BLACK‘S LAW DICTIONARY 1328, 1405–06 (6th ed. 

1990). For the best article on the concept of standing in modern law, see Steven L. Winter, The Metaphor of Standing and 
the Problem of Self-Governance, 40 STAN. L. REV. 1371, 1417–57 (1988).  

66 James Boyd White, Introduction to JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM 
i, xiii (1990). 

67 Soshana Felman & Dori Laub, Foreword, TESTIMONY: CRISES OF WITNESSING IN LITERATURE, 
PSYCHOANALYSIS AND HISTORY i, xviii (1992).  

68 MARTHA C. NUSSBAUM, The Literary Imagination, in POETIC JUSTICE: THE LITERARY IMAGINATION AND 

PUBLIC LIFE 1, 8–10 (1995). 

69 RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION 354 (1988).  

70 BROOK THOMAS, CROSS-EXAMINATIONS OF LAW AND LITERATURE: COOPER, HAWTHORNE, STOWE, AND 

MELVILLE 13–16 (1987). 



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time.‖71 Precisely how a given story transcends time and place is a mystery, and many have tried to 
explain the phenomenon. Most agree, though, that ―one purpose of fiction is to present and reveal 
character in such a way as to invite moral appraisal‖ or alternatively, ―to consider moral character from a 
philosophical point of view.‖72 Either way, the good story must appeal to an enduring mentality. As 
Harriet Beecher Stowe has already shown us, there is a deeper register in a timeless story. Robert Penn 
Warren, novelist, poet and critic, may come closest when he asks, ―Why should we, who have the 
constant and often painful experience of conflict in life and who yearn for inner peace and harmonious 
relation with the outer world, turn to fiction, which is the image of conflict?‖ His answer pulls us into 
the essential connection between story and reader: ―we turn to fiction for some slight hint about the 
story in the life we live.‖73 

With that personal touch in mind, we can approach Stowe‘s ―magic of the real presence.‖  E.L. 
Doctorow, who blends historical event with fiction in his novels, gives as good an explanation as any. 
―Complex understandings, indirect, intuitive, and nonverbal, arise from the words of the story, and by a 
ritual transaction between reader and writer, instructive emotion is generated in the reader from the 
illusion of suffering an experience not his own.‖74 The ―ritual transaction‖ between Harriet Beecher 
Stowe and her millions of readers turns ―illusion‖ into ―reality‖ through ―instructive emotion.‖ Stowe 
uses that emotion to graft moral credibility onto an illusion that imagination turns into a believable event. 

Much more than transitory understanding is therefore at stake in a story that changes a reader‘s 
moral compass. Senator Bird and the readers of him in Uncle Tom‘s Cabin see a person—a young woman 
on the run from tyrannical but still legal authority. It undoubtedly helps to know that the escaping slave 
in Senator Bird‘s house is Eliza Harris with her little son Harry, and that she has just miraculously 
crossed the frozen Ohio River from Kentucky on breaking blocks of ice. Stowe could bring this figure to 
life so vividly for herself and her readers by knowing, as many of her contemporaries knew, of an actual 
incident from 1838 when just such an escaping young slave woman crossed the frozen Ohio River to 
freedom in the town of Ripley with a child in her arms.75  

Readers of this scene, or any other in which established authority is causing harm, cannot help 
but feel complicit in that authority. They cannot avoid their own support of a law that hurts an individual 
in their midst. Whether the person hurt belongs in their midst is another question, but that issue 
disappears in the propinquity of the injury done by an unfair law. Story, in other words, can create a 
reality that people will recognize and take seriously. As Abraham Lincoln recognized when meeting 
Harriet Beecher Stowe in November 1862, ―so you‘re the little woman who wrote the book that made 
this great war.‖76 

We read a story that touches reality to recognize the problems it contains for us, to find 
something about ourselves, and with an eye for what we can believe about the conflicts that fill our 
world. These are the timeless qualities that make Henry Roth‘s novel from 1934 a proof text on current 
issues of immigration. Call It Sleep portrays the torments of the most vulnerable immigrant, a small child, 

                                                 
71 WALTER BENJAMIN, The Storyteller: Reflections on the Works of Nikolai Leskov, in ILLUMINATIONS 83, 86–90 

(Harry Zohn trans., 1969). 

72 COLIN MCGINN, ETHICS, EVIL, AND FICTION 3 (1997). 

73 ROBERT PENN WARREN, Why Do We Read Fiction?, in NEW AND SELECTED ESSAYS 55, 55–56 (1989). 

74 E.L. DOCTOROW, False Documents, in E.L. DOCTOROW: ESSAYS AND CONVERSATIONS 16, 16 (Richard 
Trenner ed., 1983). 

75 See ANN HAGEDORN, BEYOND THE RIVER: THE UNTOLD STORY OF THE HEROES OF THE UNDERGROUND 

RAILROAD 135–39 (Simon & Schuster eds., 2002). 

76 CINDY WEINSTEIN, THE CAMBRIDGE COMPANION TO HARRIET BEECHER STOWE 1 (2004).  



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and it accomplishes this task with stunning force. We are made to see the person at stake. An impact of 
this kind forces a question on its readers. How can we add new difficulties to the struggle of an innocent 
child without compromising the dignity and rights that are our own protection and definition? 

VI.      CALL IT SLEEP: THE IMMIGRANT’S PLIGHT RENDERED 

If, as claimed, ―no book in American history molded public opinion more powerfully than Uncle 
Tom‘s Cabin,‖ it may be so because of the book‘s transparency as a novel of sentiment.77 Upton Sinclair‘s 
The Jungle, with its stark realism, and Truman Capote‘s non-fiction novel, In Cold Blood, based on a factual 
event, have great communal impact for the same reason. All three novels are communal touchstones 
through easily grasped and familiar generic form. The same cannot be said of Henry Roth‘s Call It Sleep. 
No less a critic than Leslie Fiedler has said that it took him fifty years to understand the full implications 
of Call It Sleep.78 Why, then, is a modernist novel laced with structural innovations, sudden breaks, 
linguistic byplay in other languages, obscure symbolism, gaps in logic, and endless misconnections, the 
best choice for conveying the reality of the immigrant‘s plight? 

Frederic Jameson gives the beginning of a response when he suggests ―that every age is 
dominated by a privileged form, or genre, which seems by its structure the fittest to express its secret 
truths.‖79 Wolfgang Iser gives the rest of the answer when he explains the nature of generic integrity. 
Fictions of different periods depend on different ―generic control of the esthetic response.‖ The genre 
of a given moment supplies its own ―filter of history.‖ It presents social and historical norms that apply 
―to a particular environment‖ and establish ―an immediate link with the empirical reality familiar to its 
readers.‖ A reader‘s pleasure lies in the ―discovery‖ of the unfamiliar against the familiar, ―the unknown 
through the known,‖ that a timely shift in genre can supply. Readers recognize their own reality around 
them through ―the unfolding of the text as a living event‖ with ―the resultant impression of life-
likeness.‖80 

―Life-likeness‖ in literature in 1934, the year of publication of Call It Sleep, required the 
innovative generic techniques of modernism, a movement committed to ―rebellion and innovation in 
new work which attempts to break with tradition.‖81 In the disillusioned decades following World War I, 
modernism challenged ―a botched civilization‖ with what Ezra Pound famously called ―frankness as 
never before‖ and ―disillusions as never told in the old days.‖82 The only ―secret truths‖ worth telling 
had to be told in a new way, and the grounded quality and the shock value of Call It Sleep owe everything 
to this understanding. 

A certain timeliness within the genre gives life to ―a particular environment‖ in Call It Sleep. 
Modernism coincides with the largest influx of new Americans in the first three decades of the twentieth 
century, and Roth‘s modernist novel captures the most dynamic moments in that influx, 1907 to 1913. 

                                                 
77 DAVID S. REYNOLDS, MIGHTIER THAN THE SWORD: UNCLE TOM‘S CABIN AND THE BATTLE FOR AMERICA 

xi (2011). 

78 Leslie Fiedler, The Many Myths of Henry Roth, in NEW ESSAYS ON CALL IT SLEEP 17, 28 (Hana Wirth-Nesher 
ed., 1996). 

79 FREDRIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM 67, 88–89 (1991) 
(Jameson carries the point into the ―generic estrangement‖ characteristic of writing and imagery in the Postmodern 
period). 

80 WOLFGANG ISER, THE IMPLIED READER: PATTERNS OF COMMUNICATION IN PROSE FICTION FROM 

BUNYAN TO BECKETT xiii, 57–59, 81, 290 (1974). 

81 J.A. CUDDON, A DICTIONARY OF LITERARY TERMS 391 (1977).  

82 Ezra Pound, Hugh Selwyn Mauberly, in THE NORTON ANTHOLOGY OF MODERN POETRY 346, 346 (W.W. 
Norton & Co., 1973).  



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The novel is our proof text because it is absolutely invested in the immigrant experience while stylistically 
using the run-ons and sudden juxtapositions in modernist technique to cauterize emotion and dramatize 
confusion without losing their psychological impact or allowing them to drop into sentimentality. 

Two cohering elements give Call It Sleep a spontaneity often lacking in the genre of the 
immigrant novel, which generally tells its story in retrospective mode. First, Roth insists on a stark, 
concrete presentism as his control of the field of perception, and second, his protagonist is a child, and 
we are held strictly within that child‘s limited but perceptive point of view. As the first element 
encourages electrifying juxtapositions of confusion and awareness to play across the page through 
―severe discontinuities,‖ ―static simultaneity,‖ ―sensory apprehensions of life‘s surfaces,‖ and ―sustained 
mythic parallels‖—all crucial to the heteroglossic mix in modernist narratives—so the second element, 
the desperation to know an unknowing boy, makes childhood the archetypal scene and puzzle of 
immigration.83 

The boy‘s very name, David Schearl, bespeaks the fracture that coming to America creates in his 
existence. ―David‖ means ―beloved,‖ a symbol of his mother Genya‘s obsessive devotion, while the 
patronymic ―Schearl‖ is Yiddish for ―scissors,‖ and it stands for the cutting anger of his father Albert. 
Albert Schearl‘s frequent rages and violent behavior have two sources in Call It Sleep. Arriving two years 
before his family, he has, like many immigrants, been unable to adapt to life in America and, having 
spent a great deal of time apart from his wife, he suspects that his young son might not be his own. 

In trying to fathom an adult world that is only half understood even by the adults around them, 
children are at once the most adaptable, the most vulnerable, and the most frantic of immigrants. 
Questions are the dominant mode of a child, and David Schearl is filled with them. Unlike other 
children, however, he dares not ask those questions aloud in his divided household, representing the 
bewilderment of every mind in a totally new environment. The unspoken questions tumble upon us half 
articulated through an inner stream of consciousness. Roth uses this silence in his frightened child to 
expose the conflict in the immigrant experience for what it is, a familial landscape of ferocious intensity. 

All of David‘s fears are confirmed in the end. The indelible image that he holds of his father is of 
a raised hammer poised to strike, and it will turn into the truth of the book. In a final cataclysm, Albert 
loads his misfortunes onto the belief that David is ―a goy‘s get‖ rather than his own son. By ―whirling 
the whip in his flying hands,‖ he tries to kill the son who is so different from himself and becoming 
more different every day.84  

Much commentary has sought to verify Albert‘s assumption about the paternity of David, but in 
the momentums of immigration, Albert has no son and certainly never had the son he thinks he needs. 
America, not biology, has taken the son from the father. In introduction to others, Albert objectifies 
David as ―what will pray for me after my death‖.85 The phrase bespeaks the Jewish tradition of a son 
who remembers and prays after his father, but Albert is raising a son who, in trying to adapt to the new 
world his father cannot fathom, sees only ―the face of a foe‖.86 The single thing David wants from the 
angry failure of a father he hates is the same physical strength in order to be free of him.87 

                                                 
83 For the quoted characteristics in modernism, see MICHAEL H. LEVENSON, A GENEALOGY OF MODERNISM: 

A STUDY OF ENGLISH LITERARY DOCTRINE 1908–1922 201–06 (1984). For childhood as the archetype of immigration, 
see Ruth Wisse, The Classic of Disinheritance, in NEW ESSAYS ON CALL IT SLEEP 61, 61–62 (Hana Wirth-Nesher ed., 1996).  

84 HENRY ROTH, CALL IT SLEEP 27, 401–02 (2005). 

85 Id. at 29. 

86 Id. at 114. 

87 Id. at 78, 177. 



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Chilling indifference and vortices of fear also define the world beyond the home. The boy‘s first 
expressed thoughts are devastating in their portrayal of the immigrant condition: ―David again became 
aware that this world had been created without thought of him‖.88 Every immigrant experiences this 
alienation from a new reality. The receiving world has no reason to make room, and its rhythms remain 
indifferent to the latest perceiver of them. All of the struggle to understand, all of the adjustments to 
belong, all of the effort to be understood must be made by the new arrival, and David can only do so 
with internalized miscomprehension. Quick to perceive, he lacks a context for understanding. There may 
be no greater terror for a keen observer than the need to know against the knowledge that you cannot 
learn what is important to know. 

The misunderstandings, mistakes, abuse, guilt, and prejudices that guide the immigrant plot 
toward catastrophe are all heightened by the modernist stream of consciousness that Roth uses to 
convey the psychology and thought processes of a figure defined by ―watchful, frightened eyes‖.89 Silent 
except when forced to speak in the confusion of languages available to him, David can find no purchase 
in a world against him. Lost in the city, he jumbles thought processes in panic when taken to a police 
station: 

Trust nothing. Trust nothing. Trust nothing. Wherever you look, never believe. If you 
played hide‘n‘-go-seek, it wasn‘t hide‘n‘-go-seek, it was something else, something 
sinister. If you played follow the leader, the world turned upside down and an evil force 
passed through it. Don‘t play . . . . Never believe. Never play. Never believe. Not 
anything. Everything shifted. Everything changed. Even words . . . . Trust nothing. Even 
sidewalks, even streets, houses, you looked at them. You knew where you were and they 
turned. You watched them and they turned. That way. Slow, cunning. Trust no‘—.90 

David lives by a desperate controlling insight. He must hold himself apart to survive, and there is 
pathos in how lonely he has become in that recognition. The compounded negatives in his thoughts 
convey impossible levels of disbelief and doubt. David‘s alienation carries to every conceivable level of 
implication; people, words, buildings, even play are all suspect. Dimension itself has failed him. 
Everything has animate force, and it is ranged against him with malevolent intent. The quick linear 
sequence of phrases turns David‘s terror into a palpable force that we feel as well as read.  

The power of the novel lies in our visceral awareness of an alienated and necessarily fragmented 
immigrant mind constantly at work but misfiring because it is so obsessively alone. Even so, there is no 
room to blame David‘s erring mind as it causes its own waves of distrust and anxiety. The strength of 
intellect in an innocent child is our guide. Whatever has gone wrong, no reader can place the wrong in 
David Schearl. The circumstances that nearly kill him belong to the immigrant‘s plight. We cannot expect 
David to do better than he does. All we can do is hope for his survival under better conditions. 

Looking to David‘s strength of mind, some readers have found a semiotic bildüngsroman of 
growth in David‘s mastery of the language mix in Call It Sleep (his precocious knowledge of Yiddish, 
English and especially Hebrew, but not the Polish of his parents‘ land).91 Others use Roth‘s interwoven 
Jewish and Christian references to create a unified symbol system.92 Still others rely on the ghetto setting 

                                                 
88 Id. at 17. 

89 Id. at 10, 173. In the second passage, Genya asks her son ―Aren‘t you just a pair of eyes and ears!‖ Then, 
unconsciously, she gives us the problem of the book. ―You see, you hear, you remember, but when will you know?‖ Id. 
at 173. 

90 Id. at 102–03. 

91 See Naomi Diamant, Linguistic Universes in Henry Roth‘s Call It Sleep, 27 CONTEMP. LITERATURE 336, 336–37 
(1986).  

92 James Ferguson, Symbolic Patterns in Call It Sleep, 14 TWENTIETH CENTURY LITERATURE 211, 218–19 (1969). 



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to see a working-class novel with David as the avatar of labor movements.93 Psychoanalytic approaches 
emphasize Oedipal implications.94 Myth critics give David the childhood of a New-World messiah.95 
Mythic subtexts and insertions of the highly spiritual in ordinary life—modernist techniques borrowed 
from T.S. Eliot and James Joyce—have encouraged the widest interpretive range.96 So many possibilities 
also exist because Roth‘s protagonist is very early in the process of being formed by a hostile 
environment that bears no resemblance to the presumed land of promise and opportunity.  

More than anything, the novel describes the struggle of a small immigrant boy teetering on the 
brink of physical and psychological breakdown in a world he dreads far more than he inhabits. From the 
outset, Call It Sleep privileges negative shocks of recognition in the immigrant‘s plight. The book opens 
with the symbolic placement of Genya and David ―in wonder‖ before the Statue of Liberty, but their 
wonder is negative rather than the conventionally assumed scene of awe on arrival. Neither mother nor 
child sees a beckoning beacon of light. In splintered fragments of prose ―the massive figure‖ of the 
statue looms ominously above them ―charred with shadow‖; her halo, ―sparks of darkness roweling the 
air‖; her torch ―the blackened hilt of a broken sword‖.97 Genya‘s articulation is correspondingly bleak. 
―Ach!,‖ she cries. ―Then here in the new land is the same old poverty‖.98 

Roth‘s child protagonist lives in permanent alarm as he endures trauma after trauma in a 
confusing and openly threatening ghetto of mutually antagonistic immigrant groupings, and he is 
eventually driven beyond all endurance. Walking home toward what he expects to be certain doom—a 
reality avoided only by extraordinary interventions—David‘s mind approaches total collapse. So beaten 
down is the boy that he merges his identity in the objects of the store windows that he passes. Roth‘s 
stream of conscious narrative is horrifying in its capacity to illustrate a fragmenting mind falling out of 
control: 

Only his own face met him, a pale oval, and dark, fear-struck, staring eyes, that slid low 
among the windows of the stores, snapping from glass to glass, mingled with the 
enemas, ointment-jars, green globes of the drug-store—snapped off—mingled with the 
baby clothes, button-heaps, underwear of the drygoods store—snapped off—with the 
cans of paint, steel tools, frying pans, clothes-lines of the hardware store—snapped off. 
A variegated pallor, but pallor always, a motley fear, but fear. Or he was not. 

—On the windows how I go. Can see and ain‘t. Can see and ain‘t. And when I ain‘t, 
where? In between them if I stopped, where? Ain‘t nobody. No place. Stand here then. 
BE nobody. Always. Nobody‘d see. Nobody‘d know. Always. Always No.99  

                                                 
93 Kenneth Ledbetter, Henry Roth‘s Call It Sleep: The Revival of a Proletarian Novel, 12 TWENTIETH CENTURY 

LITERATURE 123, 123–30 (1966). 

94 Tom Samet, Henry Roth‘s Bull Story: Guilt and Betrayal in Call It Sleep, 7 STUDIES IN THE NOVEL 569, 569–83 
(1975); Werner Sollors, ‗A world somewhere, somewhere else‘: Language, Nostalgic Mournfulness, and Urban Immigrant Family 
Romance in Call It Sleep, in NEW ESSAYS ON CALL IT SLEEP 147, 147–56 (Hana Wirth-Nesher ed., 1996). 

95 Lynn Altenbernd, An American Messiah: Myth in Henry Roth‘s Call It Sleep, 35 MODERN FICTION STUDIES 673, 
673–74 (1989). 

96 For Roth‘s clear indebtedness to Eliot and Joyce, see Brian McHale, Henry Roth in Nighttown, or, Containing 
Ulysses,‖ and Karen R. Lawrence, Roth‘s Call It Sleep: Modernism on the Lower East Side. Id. at 75–126.  

97 ROTH, supra note 84, at 14. 

98 Id. at 12. 

99 Id. at 378–79. 



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The modernist aesthetic of compression and concreteness illustrates how the windows ―happen‖ 
to the boy instead of receiving his movement across them. The windows ―snap off,‖ and the shift in 
agency allows David to dissolve when his reflection does not appear in them. Passivity of this kind can 
trouble any stranger momentarily on unfamiliar terrain, but David is permanently estranged and much 
more deeply hurt. He no longer exists or wants to exist. ―Ain‘t nobody. No place.‖ Even worse, he asks 
directly to ―BE nobody.‖ 

The traumatized boy lacks all sense of his own identity in place. Caught between home and the 
street without the means of bringing them together in meaningful terms, David suffers from 
disassociations familiar to a new foreign-born resident, but they are magnified in him by the calamity of 
total rejection at every level even though nothing that happens is his fault. The brilliance in Roth‘s use of 
the child protagonist lies in the creation of an innocent figure who can believably think everything is his 
fault.100 Trudging toward the home that is a domestic battleground, David Schearl is immigrant agonistes. 
He turns into the quintessential alien, alienated even from himself. The reader is left asking, ―who or 
what will help?‖ 

Roth‘s answer comes in an astounding affirmation out of relentless negation. Throughout Call It 
Sleep the many separate denizens of the street have been animated by anti-Semitism, malice, theft, 
confrontation, ridicule, and indifference, but they miraculously join together and come to the rescue at 
novel‘s end. Roth posits a subliminal good will in the common denominator of the people, not an 
unusual assumption in either American fiction or American politics. This seemingly collectivized sense of 
virtue is not explained, but it lives in the sporadic exchanges of the misfits and hangers-on that help 
David.  

David nearly dies twice. First, under the uncontrolled blows of his father—―Let me strangle him! 
Let me rid the world of a sin!‖101—and then in panic-stricken flight into the uncaring streets of New 
York. Running away from ―a reeling smear of words, twitching gestures, fractured lights, features, a 
flickering gauntlet of tumult and dismay‖102, the terrified boy reaches for the guiding hand he has never 
had. He unleashes the only alternative source of power he has ever seen, and there is authorial purpose 
in making that source mechanical in origin rather than human. The machinery of industrial America is 
the immigrant‘s resort, the tool for initial advancement, and all too often, a zone of peril and misfortune. 

Peril is the result here. David‘s father has become a milkman, and the boy inserts the father‘s 
steel milk dipper into the live third rail of railroad tracks near his home, nearly electrocuting himself in a 
desperate quest for alternative meaning. Knocked unconscious and badly burned, David is saved by the 
unlikeliest of sources. Street people, the inhabitants of Roth‘s personal version of T.S. Eliot‘s Waste 
Land, led by a medical intern and a stock Irish policeman, join hands to recover the boy and return him 
to his home.  

This last scene also gives us Roth‘s ambiguous, much discussed title. Spurned, nearly 
electrocuted, burned and filled with ―torpid heart-break‖ lying on his bed of pain, the boy hears his 
mother say ―you‘ll go to sleep and forget it all.‖ We know that he will forget nothing, and he tells us so 
when he thinks, without saying, ―one might as well call it sleep‖ with the added phrase ―it was only 
toward sleep that he knew himself‖.103 A mantra repeated over and over again by the boy who watches 

                                                 
100 This device, of an innocent thinking everything is his fault, mimics the tendencies in anyone overwhelmed 

by hegemonic as well as pervasive racial prejudice as Roth seems to have been early in his life. 

101 ROTH, supra note 84, at 402. 

102 Id. at 402–03. 

103 Id. at 440–41. 



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everything around him through half-closed eyes, these phrases complete the book. As always, David‘s 
thoughts are not shared with anyone, and they contradict everything that has been said to him. 

What do these mysteriously reiterated phrases finally mean? Call it sleep, as opposed to actual 
sleep, suggests what the thinker of the phrase has been from the beginning. The words define an active 
mind kept hidden from others and ultimately from itself. The endangered boy finds himself only in the 
privacy that his pretense of sleep creates in a crowded room. He has learned it is unsafe to speak, and so 
he remains proverbially silent. But if this is safety, what kind of growth, except twisted growth, can we 
expect from this? David exists only in a closed prism of apprehension. He is the most traumatized 
immigrant in American fiction, but no one sees it until he is seriously hurt, and here is our real quandary. 
What level of vulnerability is required in an immigrant figure on American soil before the world will 
help? The question could not be more obvious, but what gives it such flashing immediacy in Call It Sleep? 

All of the conventional negatives of the immigrant novel abound in Call It Sleep: dislocation, 
vocational despair, confused realities, misunderstanding, language difficulties, discrimination, racism, 
poverty, generational conflict, domestic strife, fear of authority, and disappointment in America as 
found. Immigrant novels are also tortured by the imperative of assimilation because nothing seems more 
impossible within the generational moment that these novels choose to depict. The typical immigrant 
account is dominated by tribulations viewed from hindsight. Nothing has turned out the way its 
protagonists have imagined, and everything is less than it should be. No other form in American 
literature insists quite so stridently on the unfairness of history. Loss and regret are its defining 
characteristics, the calling cards of the genre.104 

Even so, the question of who will help, who will answer the immigrant‘s plight, does not attract 
notice in the typical immigrant novel in the way that it does in Call It Sleep. The same thematic factors 
percolate across the pages of Henry Roth‘s novel, but his use of them is anything but conventional. The 
hard mimetic look that modernism insists on giving to the ills and fragmentation of civilization through a 
sophisticated intellectual lens allows Roth to break free of literary conformity and rework generic 
needs.105 

Roth uses the exigency that modernism gives narrative trajectory to make the anxieties in the 
immigrant‘s plight uniquely spontaneous, and he couches his themes within a boy‘s naiveté where only 
perception, not sincerity, can be questioned. David Schearl‘s obvious intelligence struggles with his 
childish bewilderment, and the poignancy in that dualism creates a victim who is both a precious 
commodity and a person of worth.106 His situation foreshadows the equally poignant plight of aliens 
made fugitives in America today. 

Today, David Schearl would have a Spanish name, and he would be subject to even deeper 
uncertainties, fears, discrimination, domestic conflict, and abuse because this time, as an undocumented 
immigrant, his ignorance would not have the saving grace of an available education. He would have to 
live in partial hiding, possibly on the move, and his parents would have more difficulty finding work. If 
they found employment at all, they could lose it at any moment, and they would have no communal 

                                                 
104 For canonical examples of these generic characteristics, see ABRAHAM CAHAN, THE RISE OF DAVID 

LEVINSKY (1917); ANZIAYEZIERSKA, BREAD GIVERS (1925); O.E. RÖLVAAG, GIANTS IN THE EARTH (1927); MARIO 

PUZO, THE FORTUNATE PILGRIM (1964).  

105 This intellectual lens includes an ―austerely pessimistic vision of human life and history,‖ an ―unillusioned 
‗classical‘ sophistication,‖ the belief that American civilization has taken a wrong turn, and the tough-minded need to 
expose debased spirituality and lost direction in contemporary understandings. See DAVID PERKINS, A HISTORY OF 

MODERN POETRY: FROM THE 1890S TO POUND, ELIOT, AND YEATS 100–31, 294–300 (1976). 

106 External proof of David‘s high intelligence comes in the section called ―The Rail‖ from the one educated if 
misguided figure in the novel. When David gives an inspired reading in Hebrew, his rabbi drums the boy‘s forehead with 
a blunt finger and finds ―an iron wit‖ there. Roth, supra note 84, at 510.  



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resources against illness or injury. They would find similar but more intense levels of discrimination, 
racial hatred, and exploitation directed at them from surrounding communities in their ―illegality.‖ 

Take the following possibilities. Any one of Albert‘s altercations in the novel—threats and fights 
outside of the home and physical abuse within it—might mean deportation today in an undocumented 
immigrant. The saving rescue and return to the home by the police at the novel‘s end would certainly 
lead to the disaster of identification. David and Genya, if not deported with Albert, would face hard 
choices—they could join the further enraged domestic abuser in impecunious exile or risk destitution or 
seek the alternative of a life in crime. Genya, who lacks knowledge of the ghetto around her and of the 
English language, would be helpless, and her eight-year-old son, if not already deprived of education by 
law, would have to leave school to help in any way he could.107 If by luck or design they thrived, both 
would live in fear of exposure and deportation all of their lives no matter what they did or managed to 
accomplish. 

These differences indicate that Call It Sleep is not the answer but rather a precursor or model 
pointing the way to an aspect of an answer. The pivotal element, a catalyst for change, could be a Latino 
best-selling novel. Perhaps the generic integrities of that moment will dictate a movie instead, or a 
television show, a gigantic blog, a connecting social network online, or even a video game, but regardless 
the inevitable theme will be how current legalities hurt the rule of law more than they help it. It has, after 
all, happened that way before. But if so, the story, like its subject, remains shrouded in amorphous 
American understandings, and fiction is not evidence, it is mental engagement. Left for analysis are the 
emerging conditions that might make such engagement a catalyst toward larger understandings. 

VII. THE SEARCH FOR ANSWERS 

We have seen that ideological contradictions over immigration are deeply embedded in 
American culture just as they once were over slavery. Change depends on how the shifting nature of 
these contradictions play across the events that control them. In one of the consummate strategies of 
Call It Sleep, Henry Roth places the contradictory attitudes toward ethnic minorities in his wayward 
figures of the street. His street people are hostile or caring depending on the moment and a certain 
caprice. In the same way, contending spirits of welcome and restriction—the reflexive helping hand 
against the equally reflexive push of rejection—chase each other in every argument about aliens in 
America. Roth finds a way to turn these ambiguous forces into a helping hand, but it takes a crisis for it 
to happen. 

How close are we to a crisis involving undocumented immigrants? No one can say, but there are 
signs of a more general concern. We can use analogies in public discourse between slavery in antebellum 
America and illegal aliens today to suggest some of the dynamics at work. For just as the Fugitive Slave 
Act of 1850 galvanized heightened controversy, so the severe restrictions that states like Alabama, South 
Carolina, and Arizona have placed on undocumented immigrants have led to heightened communal 
scrutiny today.108 Just as legality over runaway slaves became a focus for public debate, so the decisions 
that judges now make to uphold or block state laws on undocumented immigrants have led to new alarm 
over what those laws might mean to the people affected and surrounding communities.109 

                                                 
107 An immigrant novel that makes much of the need to forego education for the lowest rung of the labor force 

by a very young immigrant boy is: MICHAEL GOLD, JEWS WITHOUT MONEY (Transaction Publishers 1997) (1930). 

108 For protests against the Fugitive Slave Act when it reached a legal forum, see GORDON S. BARKER, 
IMPERFECT REVOLUTION: ANTHONY BURNS AND THE LANDSCAPE OF RACE IN ANTEBELLUM AMERICA (2010). For 
evidence of one of one of many extended public discussions over severe new state restrictions on undocumented 
immigrants, see Campbell Robertson, In Alabama, Calls for Revamping Immigration Law, N.Y. TIMES, Nov. 17, 2011, at A15.  

109 For a good account of antebellum legal tensions, see ALBERT J. VON FRANK, THE TRIALS OF ANTHONY 

BURNS: FREEDOM AND SLAVERY IN EMERSON‘S BOSTON (1998). For parallel tensions today, see Campbell Robertson, 
Alabama Wins in Ruling On Its Immigration Law, N.Y. TIMES, Sept. 29, 2011, at A16; Alabama: Judge Blocks Part of Immigration 



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The fact that controversy in both historical moments focuses on specific legal action suggests 
that an even larger analogy is at work. Uneasiness enters the American rule of law whenever decent 
people under its province are deprived of fundamental rights, and we can see as much in both moments. 
Even as great an avatar of regional legality as John C. Calhoun sounds a little queasy when he claims, 
―[B]e [slavery] good or bad, it has grown up with our society and institutions, and is so interwoven with 
them, that to destroy it would be to destroy us as a people.‖110 An adamant theorist of nullification, 
Calhoun still cannot help sounding misguided when he says that liberty does not belong to ―the 
undeserving‖ as ―the result of some fixed law.‖111 Which fixed law? Where can we find Calhoun‘s 
―necessary moral qualifications‖ that say slaves cannot live ―under any other than an absolute and 
despotic government‖?112 The nature of the problem means that a lawyer like Calhoun cannot rely 
simply on power. He feels compelled to twist the language of law and morality to answer a rule of law 
that is normative logic as well as imposition.113 

Some of the same queasiness drives legal discussions of undocumented immigrants today, and 
for the same reason. The problems defy meaningful legal solutions under present circumstances. Two 
Supreme Court decisions, Graham v. Richardson114 in 1971 and Mathews v. Diaz115 in 1976, symbolize the 
ambivalence at work. Under Graham v. Richardson, the Supreme Court will not let the States ―favor United 
States Citizens over aliens in the distribution of welfare benefits‖116 because the Fourteenth Amendment 
safeguards the life, liberty, and property of ―any person.‖117 The protection of the Amendment thus 
―encompasses lawfully admitted resident aliens as well as citizens of the United States and entitles both 
citizens and aliens to the equal protection of the laws of the State in which they reside.‖118 Graham 
restricts its decision to legal or resident aliens, but Associate Justice Blackmun, writing for the Court, 
goes much further when he announces in dicta that ―classifications based on alienage, like those based 
on nationality or race, are inherently suspect‖ and deserve ―heightened judicial solicitude.‖119 

Nevertheless, this ―solicitude‖ seems to disappear in Mathews v. Diaz. The Supreme Court holds 
there that ―Congress may condition an alien‘s eligibility for participation in a federal medical insurance 

                                                                                                                                                             
Law, N.Y. TIMES, Dec. 13, 2011, at A22; and Robbie Brown, Parts of Immigration Law Blocked in South Carolina, N.Y. 
TIMES, Dec. 23, 2011, at A18.  

110 John C. Calhoun, On the Reception of Abolition Petitions, Address Before the United States Senate (Feb. 6, 
1837), in 2 THE WORKS OF JOHN C. CALHOUN 630 (Richard K. Crallé ed., 1854–1856). 

111 John C. Calhoun, Disquisition on Government and a Discourse on the Constitution and Government of the United States, 
in THE WORKS OF JOHN C. CALHOUN 1, 55 (Richard K. Crallé ed., 1851). Disquisition on Government is generally thought 
to have been written in the early 1840s, though only published in 1851.  

112 Id. at 54. 

113 Robert M. Cover, Nomos and Narrative, 97 HARV. L. REV. 4, 10 (1983). Cover finds that a rule of law must be 
justified by both ―a legal world conceived purely as legal meaning‖ through normative understanding and ―the more 
familiar notion of law as social control.‖ The legal theorist in Calhoun fully understands that he must respond on both 
levels. 

114 Graham v. Richardson, 403 U.S. 365 (1971). 

115 Mathews v. Diaz, 426 U.S. 67 (1976). 

116 Graham, 403 U.S. at 370. 

117 Graham, at 371. 

118 Graham, at 371–72. See also U.S. CONST. amend. XIV, § 1. (―[N]or shall any State deprive any person of life, 
liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the 
laws‖) (emphasis added). 

119 Id. at 372–73. 



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program‖ in a way that ―does not deprive aliens of liberty or property without due process of law.‖120 
Curiously, though, as the Court backs down from Graham, it also strives to limit the distance covered. 
―Even one whose presence in this country is unlawful, involuntary or transitory is entitled to that 
constitutional protection [offered by the Due Process Clause of the Fourteenth Amendment],‖ the Court 
asserts, citing Graham and a string of other opinions in support of immigrant rights.121 Clearly, this 
second comment broadens the scope of the opinion more than it needs to by acknowledging the 
presence of illegal aliens. Unhappiness and uncertainty over the immigration debate is alive in the court‘s 
discussion. 

If there are entitlements for immigrants, what are they, and how far do they extend? Deferring to 
the plenary power doctrine that gives regulation of immigration to ―the political branches of the Federal 
Government,‖ the Court in Mathews shuts the door on a larger solution.  ―[I]t is obvious that Congress 
has no constitutional duty to provide all aliens with the welfare benefits provided to citizens,‖ Associate 
Justice Stevens asserts,122 distinguishing Graham (applicable to the States) from Mathews (applicable to the 
Federal Government) on federalism grounds.123 Is it so obvious? Even here, one can sense some 
queasiness and a twinge of regret. Indeed, Justice Stevens cannot keep himself from acknowledging that 
―disparate treatment is ‗invidious‘‖124 and subject to charges of ―political hypocrisy.‖125 

The legal minuet in cases like Graham and Mathews gives hopeful immigrants the prospect of 
rights without remedies. It holds all immigrants in place, in a no-man‘s land far from the dance floor, 
without elemental protections, and it recognizes undocumented immigrants while keeping them in their 
outlaw status without possibility of meaningful recovery or rectification. The problems, in other words, 
remain intractable in the eyes of the law. Or is it better said that the problems depend on how they will 
be brought to the law? 

The antislavery movement addressed its own intractable problem, that of slavery, in three ways. 
It depended on relatively few leading figures who demonstrated the courage of their convictions.126 It 
fed popular recognition of the problem through antislavery conventions, fairs, publications, lectures, and 
the sale of household artifacts bearing the message of abolition.127 It also told a good story that those 
who believed in a rule of law could not ignore. Harriet Beecher Stowe told the story, but Wendell 
Phillips, ―greatest of the antislavery orators,‖ gave it legal heft when he condemned ―a Christian nation 
denying, by statute, the Bible to every sixth man and woman of its population, and making it illegal for 
‗two or three‘ to meet together, except a white man be present!‖128  

                                                 
120 Mathews, 426 U.S. at 67. 

121 Id. at 82, 85. 

122 Id. at 83. 

123 Id. at 85–86. 

124 Id. at 80. 

125 Id. at 86. 

126 For an account of these leading figures, see JOHN STAUFFER, THE BLACK HEARTS OF MEN: RADICAL 

ABOLITIONISTS AND THE TRANSFORMATION OF RACE IN AMERICA (2002). 

127 Antislavery conventions and fairs were popular events by the 1840s. One held on October 6 and 7, 1840 in 
Worcester, Massachusetts is popularized in THE LIBERATOR. See Eighth Annual Meeting of the Massachusetts Anti-Slavery 
Society, LIBERATOR, Sept. 10, 1840, available at http://www.primaryresearch.org/bh/liberator/290.jpg. 

128 Wendell Phillips, Philosophy of the Abolition Movement, Address to the American Anti-Slavery Society, in SLAVERY 

ATTACKED: THE ABOLITIONIST CRUSADE 142, 142–43 (John L. Thomas ed., 1965). It is Thomas who says Phillips is the 
greatest abolitionist orator. 



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Some of the same combinations of elite articulators attached to local or grassroots performances 
are beginning to emerge in connection to the plight of immigrants in America today. This connection is 
reinforced by the use of instantaneous and widespread electronic communication. When, for example, 
the American Heritage Dictionary in its fifth edition published and then broadcast a bland definition of 
the controversial phrase ―anchor baby‖ in November of 2011, the Immigration Policy Center, a pro-
immigration research group in Washington, led an immediate campaign in the blogosphere against ―the 
poisonous and derogatory nature of the term‖ and quickly gained a revised dictionary definition, which 
then identified the term as ―offensive‖ and relegated ―to how the dictionary treats a wide range of 
slurs.‖129 

A more enduring connection of levels of activism comes through the Coalition of Immokalee 
Workers (CIW), a community center with national outreach. CIW helps documented as well as 
undocumented immigrants by providing attention to their material well-being, by handling specific 
problems in discrimination, and by working with other social agents to win immigrants dignity and 
proper recognition of their rights. The organization works in the field with immigrants, especially with 
those in farming settings. Its website features notable political figures such as Jimmy Carter, Hillary 
Clinton, and Barack Obama and has established connections with members of the U.S. Senate, the 
Department of Labor, the Department of Justice, and the Department of State.130 

These and other initiatives demonstrate a way in which new understandings of a growing 
problem can develop. Already, the federal government has been reviewing the strictness of its 
deportation policies.131 Of course, more official legal reform is the goal of pro-immigration groups. The 
communal impetus for such reform and the catalysts that might make it happen, however, are in the 
future. 

An estimated twelve million illegal immigrants in the current United States live with fear and 
vulnerability every day. If their difficulties are not as apparent as in Call It Sleep, it is because everything 
about them must remain hidden from the law and from anyone who might report them, including law-
abiding employers. For most Americans, undocumented immigrants remain a concept rather than the 
physical reality of hardships inflicted on individual lives. These millions dare not speak in public. They 
cannot apply for better jobs if they are lucky enough to have one, which can all too easily be taken away. 
Communal services are kept from them. They must shun places of worship where they might be 
identified, and they risk exposure and deportation if one of them is placed in an educational institution. 
When does it begin to become dangerous to have so many people living without basic rights or 
possibilities in a country where well-being is defined by those rights and possibilities?  

How does a country recognize its better self? On January 6, 1941, President Franklin D. 
Roosevelt made an important effort through his identification of four vital freedoms: freedom of speech, 
freedom of worship, freedom from want, and freedom from fear. The four together symbolized ―the 
supremacy of human rights‖ in the world and defined ―a friendly, civilized society‖ at home, a society in 
favor of ―a perpetual peaceful revolution—a revolution that goes on steadily, quietly, adjusting itself to 
changing conditions.‖132 Today fixed conditions in the United States deprive every illegal alien of all four 

                                                 
129 Julia Preston, Anchor Baby: A Term Redefined as a Slur, N.Y. TIMES, Dec. 9, 2011, at A21. The original 

definition ran ―a child born to a noncitizen mother in a country that grants automatic citizenship to children born on its 
soil, especially such a child born to parents seeking to secure eventual citizenship for themselves and often other 
members of their family.‖  

130 See COALITION OF IMMOKALEE WORKERS, http://www.CIW-online.org (last visited Apr. 3, 2012). I owe 
the knowledge of this source and information about it to Professor Mark Barenberg and CIW‘s website. 

131 Julia Preston, U.S. to Review Cases Seeking Deportations, N.Y. TIMES, Nov. 17, 2011, at A1. 

132 President Franklin D. Roosevelt, State of the Union Address (Jan. 6, 1941). 

http://www.ciw-online.org/


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freedoms with the dignity that goes with them, and legal surveillance of the deprived has reached levels 
of intrusive sophistication that begin to alter the meaning of community for everyone in it.  

What will it take to correct a problem of such alarming and growing proportions? General 
emancipation came only in the violence of civil war when a slave population had reached almost four 
million or twelve percent of the population then in the United States. Illegal immigrants now represent 
three times that number in population, and if the estimates of illegal entry continue to remain in such 
excess of deportation rates, the same per capita rate of twelve percent could be reached in a lifetime. 
Roughly speaking, that would mean the presence of forty million souls without rights or expectations in 
America.133 

Can the United States, ―a friendly, civilized society‖ find a way to adjust to this ―changing 
condition‖? How will it happen and will it be done ―quietly‖ as part of ―a perpetual, peaceful revolution‖ 
or violently? The catalyst of change, if there is to be one, must almost certainly come from outside of 
official channels, and it must tell a story that large numbers will want to hear and absorb. The form of 
that story, now unknown, must be as highly recognizable and powerful as its message. Whatever its 
form, the message itself will say that current legalities hurt the rule of law more than they help it. Will the 
rule of law, part normative and part impositional, listen? For that to happen, the story will have to be 
extremely well told. It will be the story of the millions of illegal aliens who belong to America because 
they have been brought up in America with American values and have no other place to go. 

 

  

 

                                                 
133 The figures in this paragraph are necessarily estimates and dependent on fluctuating economic conditions 

that either attract or discourage illegal immigration in a given year. United States Census, 1860, finds a total population 
of 31,443,321. The best-informed estimate for a slave population in 1860 is 2,953,760. See DONALD B. DODD, 
HISTORICAL STATISTICS OF THE STATE OF THE UNITED STATES: TWO CENTURIES OF THE CENSUS, 1790–1990 103 
(1993). See also JOHN CUMMINGS & JAMES ADNA HILL, NEGRO POPULATION, 1790–1915, at 53 (1918). U.S. Census 
figures for the current United States place total population at 313,520,824. See U.S. CENSUS BUREAU, 
www.census.gov/population/www/popclockus.html (last visited May 10, 2012).