Defending People Over Property: Historical Protections in the U.S. Constitution

a conversation with Bruce Nestor, immigration attorney (longer version than what was in print)

Unidos MN underwrote a project with Minnesota Women’s Press that enabled us to create a 28-page magazine, in English and Spanish, about constitutional rights, especially impacting immigrants and allies who stand up against unlawful detentions and deportations. Future translations are expected in Creole and Ukrainian.

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I went to law school and graduated from the University of Iowa in 1992, then went to work with people who had endured domestic abuse and were seeking protection in the courts. It was not high-paying work compared to my fellow graduates. I have since been in private practice for decades — sometimes in criminal defense, but always with an orientation toward working with social movements. 

After graduating from law school in 1992, I became involved in the National Lawyers Guild, which was founded in 1937 as the first racially integrated bar association in the U.S. It was founded to the ends that human rights will be more sacred than property interests. That really captures the focus on human rights as being important:

• the right of people to determine their own future, 
• to speak freely, 
• to be free from unreasonable government abuse and intervention in their lives, 
• to have a livelihood to care for themselves, their family, and their community, and to be able to come together in association to defend those rights.

It speaks to some of the weaknesses in our society — that property interests are often more powerful and more represented in government. That is clear over the history of much of the world, but certainly of the United States. 

It also expresses a tension between the two — that in order to have human rights be more sacred than property interests, you have to counterpose the two as being in struggle with each other. Many people motivated to work in social movements, to defend human rights, want to go to law school. I encourage that, but I also try to speak to them about the reality that much of law school tries to beat that sense out of you because so much of the work of lawyers is often protecting those who currently have property, power, and wealth. 

Constitutional rights were written to protect a slave-holding class, and yet, at the same time, the Bill of Rights is a powerful tool to protect human rights — to protect the rights of people to organize, to speak, to be secure in their own homes, and to be free from arbitrary and unjust government intervention in their lives. 

 

When Rights Have Been Trampled

I ended up being president of the National Lawyers Guild from 2000 to 2003, which coincided with the attacks in New York City on September 11, 2001. The reaction we saw to that was the targeting of Arabs and Muslims, the restrictions of civil liberties, the increase in government power to take away political and human rights, and surveillance power targeting Muslims and people from the Middle East.

Around that time, I met my current law and life partner, Susana De León, who was an immigration lawyer in Minneapolis. I moved to Minneapolis, and we started practicing immigration law. We worked with Centro Campesino, a nonprofit group in Owatonna working to defend the rights of immigrants and farmworkers in rural Minnesota. They were recruited by Minnesota corporations to do seasonal work, often in substandard housing and denied wages. We were called in by the United Food and Commercial Workers International Union to go to Worthington after an immigration raid on the meat-packing plant in 2006. We saw how Immigration and Customs Enforcement (ICE) segregated workers within the plant. White workers were allowed to leave the plant — Black and brown workers were detained and interrogated and had to prove their lawful immigration status. Susana worked with families whose children came home from school and their parents weren’t there to meet them, and there was nobody to explain where their parents were.

We met with families who had been in the United States for years, were married to citizens, maybe had a pathway to acquire citizenship status that they hadn’t pursued, partly because it was difficult. We saw the trauma that was caused, not only to the immigrant community, but to the broader community. People seized in this workplace raid were parents who were involved in their schools and in extracurricular activities of their children. They bought automobiles at local car dealerships, shopped in local stores, opened up new businesses and restaurants. They were involved in community organizations. 

A few years later, Susanna also took the lead of another meat-packing raid in Postville, Iowa, where ICE held immigrant workers at the grounds of the National Cattle Congress in Waterloo. They were literally held in pens that were used to hold farm animals. It spoke to the approach of some people in our society who are willing to demonize immigrants on the basis of a different national origin, often on the basis of race and skin color. They were treated in ways that were inhuman, subjected to criminal penalties and incarceration. Sometimes, if they didn’t accept a criminal penalty, if they wanted to challenge it and fight it, they were told they would face years in prison, or they could agree to deportation. The criminal justice system was used in a coercive way to try to take rights away from people. 

In both Minnesota and Iowa, there was powerful pushback from community members, not just immigrant members. People were organizing and using the rights of freedom of speech under the First Amendment to organize politically and to educate the community and the state and the nation about what was happening and what it meant for our humanity.

We’ve continued to work with the immigrant rights movement in Minnesota, to educate people on “Know Your Rights” — what your rights are when you encounter a government official and when you go through the immigration court system. 

 

The Right to Organize

Allies of the immigrant community really need to take to heart their right to form organizations, to advocate for and defend the immigrant community, and to speak and to educate the broader community about the contributions of immigrants, about the humanity of people who are fleeing violence or economic poverty or political persecution to seek a better life. What applies to everybody is the right to due process, the right to have a hearing, to argue your case, to present your evidence and to be heard. That’s a right that flows from the Fifth Amendment to the Constitution of the United States. 

You also have a right to remain silent if you are being questioned or detained by a government official. Many people grow up with a sense of respect for authority — an idea that if I am only trying to work to support my family, if I’ve done nothing wrong, what do I have to fear? It’s hard sometimes, when you’re confronted at that moment — even if you’ve been told that you have the right to remain silent, the right to consult with an attorney — to exercise that right. Because the default is to want to answer the questions from law enforcement.. But that official in that moment is not there to help you or have a human relationship with you. So, in “Know Your Rights” trainings, we role play and model those situations so people can learn to exercise their rights.

 

The Right to Be Secure in Your Home

There also is a right under the Fourth Amendment to be secure in your own home. You don’t have to let government officials, immigration officials, or law enforcement officials into your home simply because they knock on your door. They can only enter your home if they have a judicially issued arrest warrant. That’s an important right that belongs to all people, regardless of your immigration status. And it’s a right that, again, is one that people sometimes have trouble exercising out of this default of wanting to be respectful and work with authority. But it’s an important right. It’s a right to keep your door closed. It’s a right to ask: Why are you here? What paperwork do you have to authorize yourself to come into my home? What right do you have to enter my home? 

The origins of that right were that the British Empire sent British soldiers to knock on the doors of people engaged in the revolutionary movement. People who were powerful — slave holders, property owners, since only white men of property could vote and be in government — wrote that into the Constitution. They knew the importance of the right to not have arbitrary and undue government intrusion into our homes and the lives of our families.

 

The Rights of States

The 10th Amendment reserves certain rights to the states. That speaks to our ability to work with our city and state officials and demand that they create structures and avenues to protect our entire community. That means making sure local law enforcement is emphasizing public safety to immigrants rather than becoming part of the deportation machinery. These are residents contributing to our community regardless of having a federally recognized immigration status. Those of us with citizenship status have the ability to organize and put pressure on local and state officials to stand with our entire community — to stand with immigrants who are our neighbors, the parents of children our kids go to school with, our coworkers, in our unions, who go to our churches.

What is needed in this moment in history is to stand up and fight back. Make your voice be heard, defend all of our community, and defend human rights to decency, shelter, and survival. Stand up and fight back.