Legally Constructed Walls

Photo courtesy of Noor Al-Sharif.


President Trump’s executive order, “Protecting the Nation from foreign terrorist entry into the United States,” was issued on January 27th, 2017. It suspends all refugee admissions to the country for 120 days, entry of visa-holders and immigrants from 7 Muslim-majority states for 90 days, and includes the banning of immigrants who have been granted permanent residency in the US from the 7 effected countries. While much attention was paid to the President’s promises to erect a wall along the border with Mexico (that he arrogantly and chauvinistically claimed they would pay for), many of us ignored the more insidious “legally constructed walls” he promised.

Walls which prevent or inhibit the free movement of people, that make the lives of certain communities precarious and contingent upon the very power that bans them, are never only physical ornaments of bricks and mortar but edifices constructed from the policies, decrees, and laws of white supremacy. Whether it is through executive orders, prerogative powers, primary or delegated legislation, these “legally constructed walls” problematize the existence of certain individuals when they cross arbitrary lines in the corresponding ground—often the creations of imperial cartographers. Imbued in their logic, they try to naturalize the socially constructed, though enduring, racist “link” between migration and criminality (even though Americans have only a 1 in 3.6 billion per year chance of being killed by an ‘immigrant terrorist’ of any kind).

Indeed, legally constructed walls are more insidious for they are invisible. The imaginary boundaries of legally constructed walls are indeterminate, able either to be broken down or buttressed, receded or expanded, at the whim of the wall maker. Physical walls, whether in Northern Ireland or Palestine, are destructive but they have some level of permanence, tangibility and are therefore easier to target and destroy. The limitations of the physical wall are that its violence is concentrated to its space and proximity.

Legally constructed walls, however, imbue a paradox of being invisible but pervasive, materializing and operating at every port at sea or on land where “undesirables” appear. Rather than being constructed at a particular site, legally constructed walls emerge when “undesirables” exist in spaces that they ought not to—they do not have to commit any violence or agitate for the wall to emerge, they merely have to exist for it to manifest. The violence of legally constructed walls therefore lies not in their permanence like physical walls, but in their ephemerality and the latent racism underpinning the “pragmatism” with which the laws enacting them can be exercised. They require fewer resources of capital and time, and expedite the process of white supremacy without ever laying down a single brick.

The response therefore must be both within and without the courtroom. As Mari Matsuda puts it: “there are times to stand outside the courtroom door and say ‘this procedure is a farce, the legal system is corrupt, justice will never prevail in this land as long as privilege rules in the courtroom.’ There are times to stand in the courtroom and say, ‘this is a nation of laws, laws recognizing fundamental values of rights, equality and personhood.’”

It is not surprising, therefore, because of the pervasiveness of legally constructed walls (such that they can form at any port or border) that resistance has organized from JFK, LAX, to O’Hare, to Detroit, Denver and Newark; and lawsuits from Virginia (Aziz v. Trump) to New York (Darweesh v. Trump) have similarly emerged. Because of the form of legally constructed walls, the fight back must be multi-pronged, sustained, and pervasive.

Everywhere is a battleground and therefore a point of resistance.

Tanzil Chowdhury has a doctorate in Law from the University of Manchester, where he teachers in Public Law, Counter-Terrorism and Jurisprudence. His current research adopts a genealogical approach to the UK's legal power to declare war and commit troops abroad. He also co-founded the Northern Police Monitoring Project and the Greater Manchester Law Centre. You can follow him on Twitter @tchowdhury88.