How does emotion structure legal disputes? Much of the literature on law and emotions assumes this is a question that we ask in an institutional setting—a courtroom or judge’s chambers, a legislature, or a lawyer’s office. But, as legal theorists have argued,1 most disputes have a vital trajectory that occurs before participants formally engage legal institutions; emotion infuses and structures these settings as well. In this chapter I will explore the role of emotion in one such context: the social movement that aims to influence the law. Social movement organisations crystallise and mobilise claims for change on behalf of collectivities who have suffered some injury or injustice. Some aim simply to provide solidarity or raise consciousness; many others seek formal recognition or remedy for their claims, often by engaging legal institutions. Emotional expression, management and display are critical to the way that social movement organisations do their work: as they motivate and organise their members, and as they approach legal actors and the public. Studying how emotion functions and changes in the context of social movements, however, does more than illuminate the process of making the law; it also sheds new light on emotions. Because emotions in the social movement setting have a collective dimension—that is, they are shaped by scripts and assumptions that are shared by members of the group as a whole—analysing them can supplement understandings of emotion in the law and emotions literature that are often individual in character.
In this chapter I will explore the emotional trajectory of a vital movement for social justice: the US movement for immigrant rights. This movement seeks to reform the American immigration system and, more specifically, to seek legal status or relief from deportation, for more than 11 million immigrants who are present in the United States without authorisation.2 Led increasingly by undocumented activists themselves, this movement has mobilised immigrants and addressed the public in ways that involve strong affective appeals: that is, emotion has been prominent on the face of movement narratives and actions. More strikingly, the emotional appeal of the movement has changed over time, encompassing a wider range of affective performances, and foregrounding more critical and contentious emotions. This change is a challenging move for a group which lacks legal status and is still contending for recognition in the political domain. In this chapter I offer an explanation of this controversial shift.
This explanation revolves around the concept of an ‘emotional habitus’, introduced by Deborah Gould in a recent study of AIDS activism in the United States.3 Gould describes an emotional habitus as a set of taken-for-granted assumptions among members of a group that help them to translate their affects, or experienced bodily intensities, into distinct, articulable emotions, and tell them what kinds of emotions are appropriate to feel, express, or display.4 Although the emotional habitus of a group is often constant over time, it may also change, when members negotiate salient changes in their self-conceptions or encounter political developments which cause them to reinterpret the political environment in which they operate. I argue that both kinds of factors have produced a change in the emotional habitus of undocumented activists, leading them to view expressions of frustration, indignation, anguish and outrage as legitimate and potentially productive forms of political engagement.
In section II, I describe the emotional dimension of recent immigrant rights mobilisations, highlighting in particular a broadening and pluralising of the emotional repertoire of undocumented activists.5 A movement that began in a register of aspiration and hope, engaging legislative institutions in a posture of petition and trust, added first a discourse infused with critique, frustration and indignation, and ultimately a mode of defiant protest, marked by expressions of anguish and outrage and demands for political accountability. While all three modes of affective expression remain prominent in the movement, the broadening of its affective range and its growing recourse to more defiant emotional postures remain controversial choices, particularly for a movement of non-citizens. In section III, I investigate the reasons for these shifts. I introduce Gould’s concept of ‘emotional habitus’, and identify a set of factors that appear to have produced changes in the emotional habitus of undocumented activists. In section IV, I conclude by suggesting some important implications that this may have for our understanding of the nature of law and its relationship to emotion.
The past decade has been a tumultuous period in immigration politics. Immigrant rights activists, led increasingly by undocumented immigrants,6 have struggled against anti-immigrant legislation at the state level, and mobilised for immigration reform legislation and executive relief from deportation at the federal level. The period from 2006 to 2010 marked the ascent of ‘attrition by enforcement’: a state strategy that intensified enforcement against undocumented immigrants and denied them a host of benefits, from bail to in-state tuition and state-funded college scholarships, to induce them to return to their countries of origin.7 The high water mark of this effort was Arizona’s SB 1070, which made undocumented presence or labour into crimes, and authorised police, in the course of any legal stop, to ask for identification from anyone they suspected of being in the country without authorisation.8 During this same period pro-immigrant forces waged an unsuccessful effort to pass the DREAM Act, a federal law which would have created a path to citizenship for undocumented immigrants brought to the United States as children. This law failed, most conspicuously in 2010, when it was defeated by five votes in the Senate; yet undocumented activists pressed President Obama successfully to grant Deferred Action for Childhood Arrivals (DACA), an executive mandate that suspended deportation and granted work permits to many undocumented youth, for a renewable period of two years. Following a 2012 election in which undocumented activists mobilised the Latino vote, movement activists worked for Senate passage of a comprehensive immigration reform Bill, which would have included a path to citizenship for most of the nation’s 11 million undocumented immigrants.9 When that Bill was thwarted in the House of Representatives, activists set their sights again on President Obama, pressing for deferred action for undocumented adults.10 In November 2014, Obama announced a programme of Deferred Action for Parents of Americans, which would have provided renewable relief from deportation and work permits to the undocumented parents of American citizens and legal permanent residents.11 This relief, however, was enjoined by the federal courts as an invalid exercise of executive power, and will be addressed by the US Supreme Court in the 2015–16 term.12
Throughout this period, undocumented activists, both youth and adults, mobilised against state restrictions and in favour of federal reforms. In the personal narratives through which undocumented immigrants introduced themselves to the public, and in the movement actions, which ranged from voter canvassing and legislative lobbying to hunger strikes and civil disobedience, emotions were prominent on the face of activists’ appeals. Yet the tenor of these emotions, and the stances they conveyed towards the government, changed strikingly over this decade. Early narratives, protests and other forms of self-presentation by activists were delivered in a carefully modulated affective tone, which emphasised the determination and aspiration that immigrants shared with citizens. This hopeful stance was buttressed by trust or confidence in the federal institutions responsible for immigration policy. This early emotional stance did not disappear from view; indeed, it emerged strongly among activists in the campaign for comprehensive immigration reform in 2013–14.13 Yet as the decade progressed, and activists faced federal inaction and state escalation, new affective strands emerged in their public actions. Particularly in settings where government action was hostile, or where pro-immigrant changes were postponed or thwarted, activists’ discourse grew more critical and their affective stance more aggrieved. They began to voice emotions which went beyond broadly shared states of aspiration. Emotions such as frustration, indignation, or grief, which activists increasingly manifested in public contexts, were used to highlight hardships they had endured specifically as undocumented immigrants. When Congress failed to enact comprehensive reform in 2014, and activists shifted to a demand for deferred action to address record-level deportations, stark expressions of the pain of family separation and outraged condemnation of federal enforcement came to the fore.
Young people were the first undocumented immigrants to organise, at both state and federal level. Some were enlisted by national immigrant rights organisations to share their stories with Congress, in support of the DREAM Act. Others organised themselves, as state strategies of ‘attrition by enforcement’, created barriers to their higher education.
In their public presentations, both in Congress and elsewhere, youth offered narratives of their lives in the United States, putting a human face to a controversial issue and highlighting the qualities that made them desirable as prospective Americans. As sociologist Walter Nicholls has pointed out, these stories highlighted academic achievement, cultural assimilation and innocence in connection with the family’s decision to migrate without authorisation.14 These elements can be found in a narrative offered to Congress by DREAMer Ola Kaso:
I was five years old, but I remember it like it was yesterday. Apprehensively, I teetered into the perplexing classroom. Students spoke in a language completely foreign to me. The teacher, too, spoke and pointed in a certain direction. What did she want me to do? Where did she want me to go? I stood there frozen still and silent like a statue … I’ve come a long way since that day 13 years ago. I’ve become proficient in the English language and I’ve excelled in my studies. Since the third grade, I’ve been placed in advanced programs … I have taken every advanced placement course my high school has offered and I’ve earned a 4.4 GPA doing so. I earned a 30 on ACT with English being my highest score. In high school I was a varsity athlete … I juggle all my schoolwork, after-school activities and community service projects while also having a job. I have completely immersed myself within the American culture of which I so strongly desire to become a citizen. I am currently enrolled in the University of Michigan … I ultimately aspire to become a surgical oncologist … I wish to remain in this country to make a difference … to help American citizens.
… Despite all my hard work and contributions, I face removal from the only country I’ve ever considered home … I am a DREAM Act student. I was brought to this country when I was five years old. I grew up here. I am an American at heart. There are thousands of other dreamers just like me … All we are asking for is a chance to contribute to the country that we love. Please support the DREAM Act.15
While embodying the paradigmatic substantive elements of the early DREAMer statements, this narrative is also typical in its emotional tone. The affective presentation of this DREAMer is carefully controlled. She recounts a series of challenging obstacles—from entering a classroom whose language she could not understand, to facing removal after years of committed work—yet her response to these obstacles remains matter-of-fact. The primary emotions she projects are hope and determination (‘I juggle all my schoolwork, after-school activities and community service projects while also having a job … all we are asking is to have a chance to contribute to the country that we love.’) The tenacious, aspiring emotional tone that marks early DREAMer testimony might be described as universalising, in that it highlights the affective similarities between immigrants and citizens that lie beneath factual differences in their circumstances. Both apply themselves with determination and hope; both aspire to better for themselves and their families. It also creates validating parallels between undocumented immigrants and the upwardly mobile, successfully integrated immigrants of generations past.16 These stories inevitably relate frustrations; exposing the public to the challenges faced by undocumented youth is part of the purpose of these statements. Yet the affective tone of these narratives, which remains even, hopeful and determined, frames such challenges less as injustices imposed by the immigration system on undocumented migrants, than as obstacles to be surmounted through the formidable perseverance of talented, motivated youth. Emotions of frustration, indignation, or resentment—particularised emotions of undocumented immigrants which might set them apart from their documented audiences—are kept carefully off-stage.
Adult activists responding to ‘attrition by enforcement’ also projected universalising emotions, which were both confluent with and distinct from those expressed by DREAMers. When SB 1070 was passed in Arizona, for example, undocumented immigrants, Latinos and their allies mobilised in resistance.17 These protests sought to represent the experiences and emotions of undocumented immigrants, by reframing them not as violent criminals, but as human beings and hard workers. Undocumented immigrants took part in these protests but were rarely explicit about their status. T-shirts that asked ‘do I look undocumented to you?’ or signs that identified the bearer as a ‘hard worker not a criminal’18 were displayed both by those who had some form of legal status and those who did not. This practice underscored the ambiguities of a regime that invited racial profiling, but also provided cover to those whose self-identification could trigger their detention or deportation. The self-presentation of protesters, including undocumented immigrants, was also infused with emotion, but the emotions manifested had a very specific range: protesters manifested steadfastness and dignity, pride in hard work or in being part of a history of immigration to the United States.
The valence of these emotions was slightly different from those projected by DREAMers: dignity registered more strongly than ambition, pride was connected less with distinction or accomplishment than with responsible labour, commitment to family, and perseverance. Yet there were also important continuities, including hope for a better life and determination to achieve it. These latter emotions carried a universalising message: though the circumstances of these immigrants might be different from those of legislators, or privileged members of the public, their hope and perseverance would be likely to seem familiar to those who observed them, and similar as well to ‘successful’ immigrants from previous historical waves. What remained largely backstage in these early protests was the particularity of the undocumented experience: the fear, shame, or outrage sparked by being the targets of this new regime. Documented Latinos leaders sometimes voiced emotions of embarrassment or outrage, describing with indignation the vulnerability of all Latinos to SB 1070’s law enforcement stops.19 But the feelings of fear, precariousness and uncertainty triggered in undocumented immigrants by this law were expressed primarily within their own communities.
In the period between 2010 and 2012, the emotional range of undocumented activism began to shift. The hope and determination that infused early DREAM narratives did not disappear from view; but activists also began to communicate a broader array of emotions. As national debate intensified, first over the prospect of comprehensive immigration reform, and then over the 2010 DREAM Act, DREAMers began to assert their independence from national pro-immigrant non-profits,20 and press for reform in their own voices and settings. Most conspicuously, undocumented youth began to speak publicly about their status, which they described as ‘coming out’ as ‘undocumented and unafraid’.21 Beginning with ‘National Coming Out of the Shadows Day’ orchestrated by Chicago’s Immigrant Youth Justice League (IYJL) on 10 March 2010,22 and continued in March of each subsequent year, undocumented activists across the United States revealed their identities in public rallies or protests and advocated for change. This practice, patterned explicitly on lesbian, gay, bisexual, and transgender (LGBT) coming out,23 sought to humanise a group that had been sharply stigmatised, by associating it with specific individuals. But it also sought to refuse the shame and anxiety that had been imposed by that stigma. A public refusal of stigma, in which activists declared themselves to be not only ‘unafraid’ but ‘unashamed’ and ‘unapologetic’, signalled a subtle but palpable shift in emotional communication. DREAMers spoke of their experience in ways that blended hope with indignation, impatience, even defiance. This narrative, from ‘Coming Out Week’ in Georgia in 2011, provides an example:
I am undocumented and unafraid. I will no longer wait for someone to save me while I am being denied access to an education. I will no longer sit by and watch politicians demonize us to build up their campaigns. I will no longer be apologetic for speaking my native language and for embracing my culture. I am a proud Georgian and a proud Mexicana.24
In this statement, we see several elements of a new emotional stance. The feeling of trust towards the nation and its political processes that undergirded congressional narratives has been replaced by wariness and even indignation. Determination is inflected by impatience (‘I will no longer’) rather than by simple perseverance. Pride is present but emerges from new sources: a willingness to help oneself (‘I will no longer wait for someone to save me’) and to claim one’s culture even as one embraces an identity as a member of an American state. Notably, the narrative highlights not only emotions that undocumented immigrants share with lawmakers or the documented public, but emotions arising specifically from struggles associated with their status.
The ‘undocumented and unafraid’ also expressed new emotions through acts of civil disobedience, sitting-in at legislative offices or blocking public streets.25 These riskier political acts26 conveyed the growing urgency and sense of grievance experienced by undocumented activists, as well as their frustration with the more limited emotional range employed by earlier youth activists. Arizona DREAMer Daniel Rodriguez explained this broader emotional range, commenting on the decision of the first undocumented activists to engage in civil disobedience, at the Tucson office of Senator John McCain:
A lot of people have said these were acts of desperation: I wouldn’t call them acts of desperation, I would call them acts of anger. People are angry that nothing has been done, people are angry that these deportations are happening, people are angry that one day your friend or husband is no longer there next to you, that your family that raised you is no longer there. So I wouldn’t say it’s an act of desperation, I’d say that it’s the next step from everything that we’ve already done, but it’s also an act of anger that people are not dealing with this issue yet … When we have been working for this issue for so long and we know that we have done it the ‘right’ way, and not … ruffled anyone’s feathers, and not done anything that’s given us a bad image, six years, seven years, eight years, nine years, and we still don’t see any change … The[se activists] went down there because … they just can’t deal with, having another year when we don’t have change … they just think, I need to put myself out there, I need to be the catalyst for this change, in order for me to motivate other students.27
In this statement Rodriguez straightforwardly acknowledges anger, an emotion not publicly claimed by undocumented activists in earlier phases of activism,28 and explains the reasons for its emergence. Moreover, Rodriguez’s explanation foregrounds features of undocumented experience that are unfamiliar to most members of the public: having your friend or partner or family member suddenly taken and deported. It also describes the federal government—once approached with trust by undocumented immigrants—as the source of continuing injustices against undocumented communities. This kind of self-presentation aims to elicit the support of the public, not by suggesting that undocumented immigrants are similar to themselves, but by mobilizing citizens’ sense of injustice about the difficulties immigrants have confronted.
This period saw a similar broadening of emotional repertoire in state-based activism against ‘attrition by enforcement’. In protests against Maricopa County (Arizona) Sheriff Joe Arpaio, whose racial profiling, workplace raids and bluntly anti-immigrant stance made him the scourge of immigrant communities, undocumented adults, as well as youth, increasingly came out as ‘undocumented and unafraid’. Some engaged in the acts of civil disobedience which, in early protests against SB 1070, had been performed primarily by citizens. These protests were marked by a confrontational tone, and a candid evocation of the pain that Arpaio had visited on undocumented communities. Because many of these participants did not come to activism through DREAM Act politics, their path to the frank expression of grievance was different from that for those DREAMers described above. Here it emerged as a form of defiance of an official who aimed to terrorise undocumented communities, a means of demonstrating—as protesters asserted—that ‘we will not comply’.29
In 2012, for example, during the Melendres trial,30 four undocumented activists called a ‘people’s press conference’ and came out as undocumented and unafraid. They then sat down in the middle of a busy intersection outside the federal courthouse to await arrest. The emotions of this protest were palpable in the statement of one activist, who said:
My name is Leticia Ramirez. I’ve been in the community for 18 years. I am a mother of three kids. And I’m here to tell Arpaio that he’s been chasing our community, he’s been chasing our people, and I’m here to tell him that I’m making his job easy … I’m not going to stand for what he’s been doing to my community, and come and get me.31
Ramirez’s statement conveys the corrosive fatigue produced by years of fear and intimidation, and its transformation into anger and defiance (‘I’m not going to stand for what he’s been doing to my community … come and get me’). Her act of civil disobedience marks her rejection not only of Arpaio’s regime, but of the posture—terrorised and silent—that it prescribes for her. Though she does not elaborate on what she has experienced, the magnitude of the risk she is willing to take, in courting arrest as an undocumented mother of small children, signals the extent of her suffering and her refusal to submit to stigmatisation and surveillance.
Beginning as early as mid-2013, those who were focused on fighting for legal status and those who were focused on resisting oppressive immigration enforcement converged on a shared effort to fight deportations and demand an executive programme of deferred action for adults as well as youth.32 This convergence followed a concerted yet unsuccessful push for comprehensive immigration reform, in which many undocumented activists felt their new-found political voices eclipsed by the machinations of legislators and the reassertion of control by national pro-immigrant non-profits.33 The campaign for executive relief, frequently referred to as ‘Not1MoreDeportation’,34 brought new forms of emotion management, expression and display to the fore.
This campaign comprised two kinds of efforts: social-media-based struggles against individual deportations, and larger public events at which those with loved ones or friends in detention or deportation proceedings engaged in civil disobedience designed to highlight and thwart mechanisms of immigration enforcement.35 Both kinds of action shared a common substantive theme: the sundering of family ties through record-level detention and deportations was a not only betrayal by the Obama Administration but a violation of the humanity of those targeted. This message was communicated through a distinctive emotional repertoire; the shift in activists’ critique—from claims of injustice to claims of immorality—was underscored by yet another shift in emotional register, from anger and frustration, to outrage and demands for governmental accountability.36 Moreover, the pain of family separation was communicated by anguished, first-person narratives in which those suffering the detention or deportation of a family member abandoned practices of emotional self-restraint, in favour of searing, intimate expressions of the losses that were being imposed by federal immigration enforcement.
A key example of this affective approach was a video created by Arizona DREAMer Erika Andiola, in January 2013, to fight her mother’s deportation.37 When Andiola’s mother and brother were taken from their home by ICE agents, Andiola recorded a statement in which she recounted the circumstances of their detention and pleaded for help in fighting her mother’s imminent deportation. In the video, Andiola is distraught and weeping visibly as she says:
Hello, my name is Erika … my mother and my brother were just taken by Immigration. They just came to my house, they knocked on my door. My brother was outside with the neighbor. They just came to ask for my mom. They said they were not going to do anything to her. My mom came outside and they took her, for no reason. And then they asked me if my brother was related to me. I said yes, he’s my brother. They just took him, they just took him—they didn’t want to tell me why. They just said that they needed to go because they were here illegally, and that they shouldn’t be here. This needs to stop. We need to do something, we need to stop. We need to stop separating families. This is real, this is so real. This is not just happening to me, this is happening to families everywhere. We cannot let this happen anymore. I need everybody to stop pretending like nothing is wrong, to stop pretending like we’re just living normal lives, because we’re not. This could happen to any of us at any time.38
While Andiola’s video draws on a love between family members that may be broadly shared, there is nothing universal about the pain it so starkly conveys. Andiola’s anguish arises from a kind of inhumanity that is unfamiliar to many in her audience; it is directly related to her family’s undocumented status. She abandons, and even critiques, the posture of normalcy and cheerful aspiration that has been part of DREAMers hopeful stance, adding ‘I need everyone to stop pretending like we’re just living normal lives because we’re not. This could happen to any of us at any time’. Also notably, Andiola films herself at the moment of greatest impact, before she has had the opportunity to assimilate her fear, anger and grief; in so doing she makes absolutely clear the emotional pain of family separation. While this timing reflected practical necessity—it was essential to spread the word quickly order to fight her mother’s deportation—it also allowed her to capture, in the most visceral way possible, the pain produced by immigration enforcement.39 Andiola’s video captured not simply vulnerability but immediate loss: it materialised for viewers the raw pain inflicted on hundreds of families each day through immigration enforcement practices.40
Public demonstrations during this period also foregrounded this kind of visceral suffering. In April 2014, undocumented activists from Phoenix organised a 60-mile march into the Arizona desert, culminating in a public vigil at the immigration detention centre at Eloy.41 At the end of the vigil, an organiser asked participants who had children in detention at Eloy to speak to them via a public address system, noting that protesters could often be heard inside the facility. The expressions of love and anguish that followed were difficult to witness—in both their intimacy and their pain—as they echoed off the concrete canyons of the facility.42 Although the self-disclosure required by this part of the action was an exhausting experience for the parents involved, participants treated it as a demanding but necessary expedient, to impress upon an apparently indifferent world the suffering that had been imposed upon them by federal immigration enforcement.
The emotions of anguish that characterised this period of activism were intertwined with emotions intended to elicit accountability: outrage at the inhumanity of the Administration’s enforcement policies, and determination to hold the Administration accountable for this treatment.43