The provision of federal law criminalizing unlawful entry into the United States — which some Democratic presidential candidates now want to undo — was crafted by an avowed white supremacist who opposed the education of black Americans and favored lynching, which he justified by saying, “to hell with the Constitution.”
The law, referred to as Section 1325, became a flash point in the first of two Democratic presidential debates this week, when Julián Castro, a former secretary of housing and urban development, challenged his rivals to back its repeal. The measure’s little-known history did not arise on Wednesday night in Miami, where the first cohort of Democrats vying to compete against President Trump took the stage. No one mentioned Sen. Coleman Livingston Blease.
But the legacy of the criminal lawyer and neo-Confederate politician from South Carolina hangs over the 2020 election. Blease was the architect of Section 1325, the part of Title 8 of the United States Code that makes it a misdemeanor to enter the country without authorization.
The statute, adopted in 1929, is the basis for Trump’s “zero tolerance” immigration policy, which his administration used to justify separating families at the border. And as the contestants in Wednesday’s debates sought to burnish their images as opponents of that policy, it was the call for Section 1325′s repeal that became one of the starkest dividing lines in a crowded field.
Castro’s quest for the statute’s annulment forms part of his “People First Immigration” plan unveiled in April. Some, including Sens. Elizabeth Warren of Massachusetts and Cory Booker of New Jersey, have backed the idea.
“The reason that they’re separating these little children from their families is that they’re using Section 1325 of that act, which criminalizes coming across the border, to incarcerate the parents, and then separate them,” Castro said from the debate stage. “Some of us on this stage have called to end that section, to terminate it.”
Others, he added, singling out his fellow Texan, former congressman Beto O’Rourke, have not.
That Section 1325 got airtime on Wednesday indicates its significance in American political history, according to Kelly Lytle Hernández, a professor of history at the University of California at Los Angeles and the author of a 2017 book that exposes the explicit racial motivations for the statute.
“I’m thankful to hear it’s being brought to the surface,” Hernández, author of “City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles, 1771-1965,” said in an interview with The Washington Post. “One of the things that this president has gifted us is the opportunity to finally talk about what immigration control and immigration law is in the United States. There is no immigration reform without grappling with the hold that Jim Crow has on our immigration regime.”
The influence of Jim Crow on the nation’s immigration laws is personified by Blease, whom Hernández called an “unrepentant white supremacist.” His ideas gained currency as part of a larger effort to enforce racial exclusion a century ago, including through national origin quotas and a complete ban on immigrants from Asia. That system was scrapped during the civil rights era, but criminal penalties for unlawful entry remain.
“The world that Blease imagined in 1929 is very much the world in which we’re living,” Hernández said.
Coleman Livingston Blease was born in 1868 in the foothills of South Carolina, raised near the mill town of Newberry. Tall and slender, he walked with a swift gait. A felt hat with a broad rim covered a shock of dark hair, which matched his prominent mustache.
Asking voters to call him “Coley,” Blease entered politics as a protege of Benjamin Tillman, the white supremacist governor and senator from South Carolina who would go on to denounce his former disciple for his extreme populism, saying, “Catiline among the Romans and Aaron Burr among the Americans are the only other men I have ever read of who were equal to Blease in bamboozling the people.”
“He is a past master in the arts of a demagogue,” Tillman added. “He knows full well that when the angry passions of the masses are aroused they lose their reason.”
Casting himself as an ally of poor whites, including textile workers in upper South Carolina, Blease became a state legislator in 1890 and the governor in 1911. He was a Southern Democrat, in favor of segregation, before party realignment in the second half of the 20th century.
Blease defended violence against people he called racially inferior, saying a band of white men had done “exactly right” for whipping blacks, saying that “the morals and the mode of living between colored people are not up to the standard adopted and lived up to by the white people.”
Blease defended lynching, dismissing legal concerns with vigilante justice.
“Whenever the Constitution comes between me and the virtue of the white women of the South, I say to hell with the Constitution,” he argued.
Blease had similar scorn for the judgments of courts, which he said served mainly to prop up the rich. Before resigning the governorship in 1915, he pardoned more than 1,000 state prisoners, among them a man convicted of murdering his wife, as well as many of his former clients who had enlisted his services as a well-known defense attorney.
Blease won election to the Senate in 1924, bringing his campaign of racial agitation in Washington. He proposed prohibiting interracial marriage by constitutional amendment. Incensed by the decision of the first lady, Lou Hoover, to invite the black wife of a congressman to tea at the White House, he offered a resolution demanding that the president and his wife “remember that the house in which they are temporarily residing is the ‘White House.' "
Many of Blease’s efforts were fool’s errands, Hernández notes in her book. He was less intent on shaping policy than on riding a “wave of anti-black racism” coursing through the country. One of his biographers wrote that he harbored “Negro-phobia that knew no bounds.”
In 1929, however, as Congress strained to develop a policy on Mexican immigration, Blease became the broker of a compromise between nativists and a faction protective of business interests that required cheap labor.
As a result, he was able to transform American immigration law, which bears his imprint to this day.
“Blease shifted the conversation to controlling unauthorized Mexican migration rather than capping authorized migration,” as Hernández’s account explains. “Citing the large number of unauthorized border crossings made by Mexicans each year, Senator Blease proposed criminalizing unlawful entry into the United States.”
His bill was approved in March 1929, yielding Section 1325. By 1939, United States attorneys had prosecuted more than 44,000 cases of unlawful entry, as Hernández chronicles.
In the decades that followed, law enforcement often pursued other priorities, deciding that prosecuting a stream of misdemeanor cases was not worth the time or resources. Immigrants caught crossing the border without authorization could still be returned, as they were before criminalization.
Prosecution was stepped up during the George W. Bush administration, in response to an increase in border crossings. Supporters of such an approach argue that it is necessary to deter unlawful entry, said Tom K. Wong, an associate professor of political science at the University of California at San Diego and an adviser to the White House Initiative on Asian Americans and Pacific Islanders during the Obama administration. But the evidence is not conclusive on that point, he maintained, while the costs have been significant.
Meanwhile, abandoning the criminal classification of unlawful entry, and treating it instead as a civil infraction, could be “immensely consequential for undocumented immigrants,” Wong said. For one, it would prevent large-scale detention and end the practice of separating children from their parents, as the adults would no longer face criminal proceedings.
Critics of Section 1325 also argue that the statute deters migrants from turning themselves in to immigrant officials, which is necessary to claim asylum. Those who do not favor its repeal say it is possible to overhaul the country’s immigration system and do away with “zero tolerance,” while maintaining criminal penalties.
“You’re looking at just one small part of this,” O’Rourke told Castro. “I’m talking about a comprehensive rewrite of our immigration laws. And if we do that, I don’t think it’s asking too much for people to follow our laws when they come to this country.”
Hernández sees benefit in the discussion, which could cast light on the “extraordinary power of federal law enforcement” in the area of immigration, she said, where “what we presume to be people’s constitutional rights can be violated.”
But she is ultimately skeptical about the likelihood of ambitious changes.
“I think it’s more likely that we would satisfy ourselves with fairly moderate reforms to our immigration laws rather than thinking more broadly about how the economic system, political system and military system dictate the flow of human beings around the globe,” she said.
Blease’s transgressions are easy to recognize today. And yet, Hernández said, “there are many Bleases.”
Who’s behind the law making undocumented immigrants criminals? An ‘unrepentant white supremacist.’