Abstract

Excerpted From: Ernesto Hernández-López, Border Brutalism, 46 Fordham International Law Journal 213 (January, 2023) (216 Footnotes) (Full Document)

Americans have always had a keen and inspired sense of their place in the world. Popular sayings remind us of this. “Go west young man” urged settlers into territory occupied by Native Americans or México in the nineteenth century. “A splendid little war” evoked pride in new overseas possessions (e.g., Puerto Rico and the Philippines), creating a global empire after the Spanish-American War in 1898. “Be all you can be” encouraged personal growth through joining the military after disillusionment with the Vietnam War. These figurative places--a conquered West, far reaching overseas, and a source of pride--hit deeper than a distinct political past intrinsic to Independence in 1776. American exceptionalism thrives from these conceptual localities.

These memories galvanize but they carry important racial implications that are largely erased from national narratives. Said simply, American national narratives emphasize ideals of manifest destiny and overseas military necessities to downplay the racial violence intrinsic to expansion. This has become a species of inattention, beginning with the American Indian Wars to control “the West” and continuing through the War on Terror and its “longest war” in Afghanistan. African American, Native American, Mexican, Asian, Caribbean, Pacific Islander populations, and more communities in the Global South have been forced to confront this inattention. Their experiences describe stories of loss, suffering, and self-governance denied. They starkly contrast triumphant tales of democracy, capitalism, individual rights, and freedom that fueled Americans' reach.

This mythos and slogans like “Make America Great Again” capture the central themes of Greg Grandin's book The End of the Myth: From the Frontier to the Border Wall in the Mind of America. Grandin discusses how Americans saw their global role driven by concepts deemed innately positive, born from the Enlightenment and American Independence in the eighteenth century. He also demonstrates how loss and disillusion overseas now shape American sentiments. President Donald Trump's obsessions with American carnage and a border wall manifest this political trend labeled “border brutalism” by Grandin. The End of the Myth is one of many recent books explaining American power and its global place amidst conflict, autocracy, racial violence, and the declining legitimacy of leaders worldwide. Some books concentrate on politics, international relations, or race to analyze America's place. However, Grandin explains the interplay between race relations and America's foreign relations by emphasizing ideas in national history, their evolution, and their consistency. This emphasis delivers a message that needs to be understood. It shows how Americans view the United States three decades after the Cold War and two decades into the War on Terror.

This detailed book contends that two myths drive Americans: the frontier myth and the border myth. The frontier myth was the historic need to expand influence in North America and then overseas. The border myth ends talk of optimistic frontiers and taps into various forms of racism, to shape current politics. Racism, including its violence and subordination, impacts both myths. For most of American history, frontier mindsets of hope and progress downplayed racism and extremism, pushing them to geographic edges, deflecting them overseas, or painting them as necessary wrongs. The myth was that freedom, stability, and capitalism moved West and abroad with American presence. Ever since colonies became states, notions of expansion provided a safety valve from confronting racism's domestic tensions which were evident in the politics of slavery, migration, and civil rights. Presently, a border myth invites racism--its hatreds, disenfranchising, and violence--as a more accepted element of American politics. Grandin shows how figurative frontiers have closed, consequently extremism now turns inward. Border brutalism gives these sentiments political force.

The End of the Myth has garnered wide acclaim with a Pulitzer Prize for nonfiction and impressive reviews in the popular press, from multiple disciplines, and from activists. Its appeal lies in emphasizing the frontier myth's continuity over centuries and its gradual unraveling, which has become impossible to ignore after Trump-era policies on migration, trade, alliances, and global threats such as viral pandemics and climate change. Grandin describes the resulting policies as border brutalism motivated by national pessimism. Border brutalism develops when American expansion can no longer offset domestic tensions. The End of the Myth is an indispensable description of American inspirations on the world stage. It offers as an eye-opening history of the present. There is a great deal to unpack in its sophisticated fusing of domestic and international analysis along with cultural and economic explanations. Unfortunately, legal audiences have yet to effectively incorporate its arguments or predictions into legal scholarship.

This Essay argues that legal scholars interested in race should follow Grandin's arguments for three reasons: myths influence laws, laws change borders, and the book implicitly points to a framework to isolate these influences and changes. First, The End of the Myth explains how ideas, such as the frontier or the need for overseas wars, and their context shape the law's role in American society. Ideologies sustain political, economic, and cultural actors, and these factors eventually impact the law. The book shows what fuels doctrinal development and how norms and institutions contribute to racialization. Myths and mythmaking are intrinsically connected to the public legitimacy that leaders seek. Grandin's lessons illuminate what is at stake today: if American law can remedy racial tensions (versus entrenching majority rule), and whether the United States works with overseas partners, rather than unilaterally. Popular motivations--the notion of a frontier--pushed the United States from a group of small colonies to a global power. Future leaders will face similar popular demands as world powers shuffle and threats cross national lines. Grandin predicts the border myth as the future's popular motivation. In preparing for tomorrow, scholars of immigration, national security, and constitutional law can benefit from The End of the Myth's deft analysis of popular ideas, their popular appeal, and their impact on norms, institutions, and governance in the United States.

Second, The End of the Myth points to racial implications developing from contemporary legal debates at our borders. As a legal preview, this Essay picks up where the book stops; for instance, the start of the Trump presidency in 2017. The Essay examines Supreme Court decisions since 2017 on law's contributions to border brutalism. By interpreting American authority at the border, these court cases ask if legal protections should be cut off at our national boundary. Supreme Court rulings illustrate this trend by addressing the border and foreign national admission (Trump v. Hawaii, 2018), judicial review for noncitizens (DHS v. Thuraissigiam, 2020), and killings by border agents (Hernández v. Mesa, 2020). These decisions point to more limited judicial roles when reviewing border policies. For example, the Court fashioned legal norms that defer to discriminate, distort history and legal claims, and focus on abstract threats versus violence, respectively. The Supreme Court has similarly examined how border management comes into conflict with Congress or states with wall construction (Trump v. Sierra Club and others, 2020-21) and turning asylum seekers away (Biden v. Texas, 2022). In all these cases, the Justices answered a simple question: do new realities require less individual rights protections at the border? This effectively asked whether border brutalism is required? These rulings offer early illumination for border brutalism's doctrinal path. These illuminations point to concepts consistent with border mythologies described by Grandin.

Third, The End of the Myth inspires a framework (“Brutal Framework”) to identify the law's contribution to this border brutalism and how it is racialized. This framework specifically identifies four factors: geopolitics, racial consequences, public limits, and policies needed to carry out security and material objectives. Each of these factors is explained more fully below. First, geopolitics view events and actors overseas, including migrants, as potential threats. Second, racial consequences result from prejudice and racial hierarchy. Third, public limits refer to how legal resolutions are justified by constraining resources or rights. Lastly, policies delineate how geopolitics and public limits informgovernmental action and lead to racial consequences. The factors of this Brutal Framework illustrate how laws add to a border myth and they identify the racial implications of this process. The Framework shows how the doctrinal rulings intensify border brutalism policies and the conceptual motivations of this border myth. These factors show how legal reasoning can justify brutality by capitalizing on national security fears, xenophobia, and economic justifications.

This Framework offers many benefits. With it, legal scholars interested in race can move away from examining security, immigration, economics, and policymaking as separate silos. Instead, this approach considers the influence of these factors while analyzing legal reasoning and racial consequences together. Race is not merely a domestic issue since international developments can have racialized impacts. More importantly, this method illuminates the law's role in racialization when policies are devised as neutral or when they lack the intent to discriminate. Expanded upon below, an application of the Framework indicates that the Supreme Court deferred to discriminate in Trump v. Hawaii, distorted the past and present to exclude in Thuraissigiam, and prioritized abstract threats versus border violence in Hernández. Seen doctrinally, these decisions reinterpret judicial roles at the border. Viewed under a framework lens, these rulings emphasize geopolitics and public limits to justify border policies with racial consequences. These three cases suggest that judicial rulings add normative footing to border brutalism and strengthen contemporary border myths.

The Brutal Framework provides a powerful tool to examine a developing future. Legal developments now shape tomorrow's race relations through migration, security, and foreign policies. The End of the Myth reminds us that similar trends in history--manifest destiny, overseas military campaigns, and anti-migrant movements--inspired fundamental legal changes. Pointing to these reminders, this Essay argues that legal scholars should study our conceptual past to make sense of current evolutions. Immigration, national security, and constitutional law scholarship can move to incorporate this dynamic approach to race and notions of national identity. Race is never far from American myths, policies, or legal disputes. Racial contests can simultaneously be about admission (immigration), protection (security), public limits (economics), and governmental ordering (constitutional law). The End of the Myth points to an analytical framework to unpack these overlapping influences.

To build on these arguments, this Essay has three parts. Part I summarizes the central claims in The End of the Myth and demonstrates the significance that law plays in Grandin's long story and the Framework it inspires. Part II offers a preliminary example of the Brutal Framework applied to Supreme Court disputes on the border since 2017. This shows how geopolitics, racial consequences, and public limits justify policies with legal reasoning focused on the border. Here, border brutalism addresses: noncitizen entry, habeas privileges at the border, and border killings. These decisions effectively reinterpret court roles at the border to defer and discriminate, distort to exclude, and ignore violence, respectively. The Framework suggests methods to pinpoint the interrelations between law, race, and notions about American power. The Conclusion emphasizes the Framework's utility and points to suggestions from The End of the Myth to address border brutalism.

[. . .]

Popular concepts like liberty and freedom drive foreign relations and shape race relations in the United States since the country's foundation. The End of the Myth expertly presents this as a long story of frontier myths, motivated by hope and expansion, that transformed into a border myth. Domestic pessimism inspires the border myth and its consequential border brutalism policies. The End of the Myth shows law's recurring role in frontier and border myths since the country's beginnings as a collection of small colonies to evolving into a global power to its ongoing disillusions with foreign wars and globalized trade. This Essay argues that legal scholars should follow these analytical suggestions. Popular ideas influence lawmaking, legal interpretation, and institutions. Calls to “Make America Great Again” and build a “big, beautiful wall” echo racial and nativist tensions from past mindsets. But now, the animosity aims inward and domestically.

To unpack these developing forces, this Essay proposes a “Brutal Framework” to identify law's role in border brutalism. It pinpoints four factors: geopolitics, racial implications, public limits, and consequential policies. This Essay analyzes borders and: noncitizen admission in Trump v. Hawaii, judicial powers in Thuraissigiam, and violence in Hernández. The Framework shows how these cases offer conceptual rationales and normative footing that aid a border myth.

The Brutal Framework offers a powerful methodology to examine law's contribution to an evolving border myth. With it, legal scholars move away from studying security, migration, economics, and policymaking as separate trends. It shows race is a domestic and international issue. Future Framework applications can unpack racial consequences of conflicts between government branches, like with border wall construction, and between states and federal authority over border management and foreign affairs, as with the Remain in Mexico program.

The Framework also points to law's place in solutions. Grandin argues that a border myth forces Americans to choose between barbarism or social rights. Foreign relations, migration, and border policies already push these choices. Recent efforts use exclusions at the border to: address domestic labor challenges, screen for affluent foreign nationals, and apply public health exclusions beyond pandemic responses. In a similar vein, immigration policy protects privileges with work, travel, and education benefits, sparking domestic resentment, especially when these efforts help those who have been out of status since childhood. An examination of all of these and other examples suggest racial consequences appear when law: acts as a geopolitical instrument, determines resource allocations, or defers to elected political authority (i.e., popular approval). Said simply, on many fronts, legal reasoning works in the service of border brutalism.

In sum, The End of the Myth offers a descriptive tour de force specific to what motivates Americans and the racial consequences of these inspirations. This tale spans national history from liberated colonies in the late eighteenth century to endless wars of liberation since 2001. This Essay picks up where history reaches the present. It proposes a framework to identify law's role in a border myth conceptually and how it contributes to tensions dividing Americans.

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Professor of Law, Fowler School of Law, Chapman University.