The US border is now officially closed to everyone, unless the crossing falls under the rather ill-defined category of “essential.” This move is officially described as a public health response to the spread of Coronavirus, but it also happens to coincide with the Trump administration’s frequently stated view that the country is “full.” Furthermore, it reinforces this administration’s claim that the “Chinese Virus,” as Trump calls it, or the Wuhan Virus, as the Secretary of State Mike Pompeo calls it, is a consequence of insufficiently rigid border controls. The link between the virus and the threat posed by immigrants is an effective rhetorical move that reinforces Trump’s messaging since his run for president in 2016: America will be great again if it can push back against all things foreign, including international organizations, international treaties, and of course international travelers who don’t happen to be wealthy and white. The virus is a “foreign” threat, just as immigrants, particularly those crossing the US border from Mexico, are criminals and rapists who pose a threat to the US domestic population.

None of this is terribly new, alas, but the vociferousness of this administration in its employment of racist and xenophobic rhetoric to justify manifestly illegal actions taken against, for example, asylum seekers, is jarring. Most of us thought that such efforts would be quashed in the courts, but decisions in the courts, right up to the Supreme Court’s seal of judicial approval on the outrageous Muslim Ban(s), has proven that the anti-immigrant rhetoric doesn’t just find resonance in Trump’s much-touted base, it also resounds with conservative judges, all the way to the top of the judicial ladder. This is surprising, because the treaties to which the US is party, and the case law that has emerged over the years, affirm clear obligations on the part of signatories to the 1951 Refugee Convention and the 1967 Protocol. In order to analyze these obligations, I have been working on a wide-ranging project that describes the judicial, historical and political context within which the 1967 Refugee Protocol was negotiated. In a forthcoming article in the International Journal of Refugee Law, I argue that since that Protocol is a stand-alone treaty, we need to look to that context to understand what it means in regards to state obligations towards refugees.

This work is of particular importance in the case of the US, since the 1980 Refugee Act (Public Law 96-212) roots US obligations towards refugees in the 1967 Refugee Protocol, signed by the US in 1968. Only the US, Venezuela and Cabo Verde are parties to the Protocol without having signed the 1951 Convention, to which it specifically refers (and, according to the UNHCR’s own description, it “amends”). My reading of the documents that recreate the context of US adherence to the Protocol suggests that the LBJ Administration and Congress had a strong desire to join the international refugee law regime, probably for reasons connected to Cold War politics, and lawmakers anticipated a liberal approach to refugee admission and integration. They wanted to ensure that vulnerable migrants would have the opportunity to live rich and full lives in their new home country, and not be treated as public charges or, worse still, like foreigners who will corrupt the sanctified space of America. This approach found specific support in the recent ruling by Judge Sullivan in the case of Grace v. Whitaker, in which he repeatedly invokes the “intention” of Congress at the time of the Senate’s unanimous vote to adhere to the Protocol, in his reasoning to strike down Trump’s proposed rules about gender and gang violence.

Linking “foreigners” to viruses and dirt

In my previous book about undocumented migrants, I considered the rhetorical power of linking “foreigners” to dirt, filth, viruses and diseases, a tactic that has been employed with frightening success by a broad array of host country officials who are anxious to limit the entrance of migrants. It’s instructive to compare these efforts with other efforts made to exclude individuals and goods that are deemed, for whatever reason, to be foreign. One interesting comparison can be made to “foreign” literature, beginning with the case of a famous couple of English translators and publishers named Henry and Ernest Vizetelly. They were engaged in the translation and dissemination of works by Émile Zola that were deemed “obscene” in France, and prosecuted as such in England. With the insights of that example, current actions taken against undocumented immigrants and asylum seekers draws attention to the overlap between what was said against Henry Vizetelly at his trial, and what Trump and others in his administration say about immigrants as purveyors of viruses and illegal activities.

The story begins in 1888, when Henry Vizetelly was prosecuted for “obscene libel” on account of his having translated Émile Zola’s novel La Terre into English. The transcripts from the trial contain numerous references to other “obscene” texts, including Baudelaire’s Les Fleurs du mal, which had been denounced by Gustave Bourdin in Le Figaro (5 July, 1857) as “l’odieux y coudoie l’ignoble, le repoussant s’y allie a l’infect.” In a remarkable utterance that links literature to hospitals (!), he then added that “ce livre est un hôpital ouvert à toutes les démences de l’esprit, à toutes les putridités du coeur”. The prosecution also made reference to the works of Swinburne’s “Hermaphroditus” which were described as “filthy” because they exploried, and transgressed, liminal spaces, those boundaries where, in Swinburne’s words, “pleasure culminates in pain, affection in anger, and desire in despair.” In spite of the many differences between the works of Swinburne, Zola and Baudelaire, and despite considerable variation in the legal systems employed to prosecute them in England and in France, the critical vocabulary deployed against them all seems to make one thing clear: In the eyes of many of their contemporaries, and certainly in the courtrooms of justice, the works that were being scrutinized were all portrayed as a kind of “dirt” that was imposed upon an unsuspecting reading public that risked, in its exposure to it, an irreversible infection. For the offense, Vizetelly was fined £100 and warned to halt future translation of Zola’s texts. Despite the risks, he decided to continue his work, but to avoid further prosecution he edited out passages that he thought might upset public mores. The prosecutors weren’t satisfied, and so he was once again dragged into court, found guilty, fined £200, and imprisoned for three months. He died shortly thereafter.

When prosecutors link foreign or obscene texts to “dirt”, they are suggesting that they are acceptable if they remain in their place of origin (the garden, the place of origin), but they become unacceptable when they cross a border. Dirt, from this perspective, is “matter out of place,” it comes from another realm, and in that respect is generally unwelcome. Richard Sieburth has written that dirt “exists outside of system, it escapes classification, it represents a disorder which must be excluded, bounded, interdicted, so that order may be instituted and maintained.” Like objects or individuals who are stuck in borderline spaces, dirt’s “location is always somehow liminal, interstitial, in between; its lack of clear differentiation is precisely what renders it so potentially defiling.”

Exposing ourselves to the foreign

Thinking about viruses, dirt, and matter that is out of place, also connects us to the issue of vulnerability, which is foremost on people’s minds during a pandemic, or in the course of an invasion. There is a fear, which can be literal or metaphorical, that body or the body politic is vulnerable when borders, including the body’s own flesh (the border between inner organs and the outside world) is opened up. The image that is used to promote borders is that open flesh allows for the entrance of dirt, pollution, foreignness, and, of course, viruses. One of the great fears in the current Coronavirus pandemic is whether we are sufficiently protected from it, if our masks or gloves or borders are secure. Like obscene literature, or like things or people who are deemed “foreign,” the Coronavirus’s effects are all mysterious, and largely invisible, until they strike us to our core, sicken us, or kill us.

The ways in which a link is made in the media or the social discourse that connects viruses, foreignness and borders is brought into focus when we look at the language employed against Henry Vizetelly in the course of his trial. The National Vigilance Association documented both the trial and the press’s response to it in a widely-disseminated pamphlet called Pernicious Literature. In a particularly poignant example for the current Coronavirus scare, The Methodist Times’ editor notes in regards to Émile Zola’s novels that “Zolaism is a disease. It is a study of the putrid… No one can read Zola without oral contamination, and the only plea that can be made is that the disgust inspired destroys the fascination of the evil. It is time that the legislative action was taken against other authors besides Zola, who are contributing to the literature of the Sewer…. Broadcast translations are an offence which demands the utmost severity of punishment and repression.” The editor of The Western Morning News agreed: “Whatever may be said in favor of the state shutting its eyes to the circulation of Zolaesque literature, there can be no question that Zola is filthy in the extreme, and obscene to the point of bestiality. He is more unclean, and realistically so, than any other writer, … We could prove our point in a moment if in the very proof we were not likely to do the evil which we deprecate.”

Foreigners Crossing Borders from Unsafe Places

What’s so terrifying about the Coronavirus, and what makes the rhetoric of isolation, exclusion and anti-foreign work so well, is that the disease is transmitted, reproduced, and caught without our being aware of it. Authorities insist that the population needs to be vigilant, particularly if the place from which the carrier of the disease came (Iran, Italy, China, Korea) isn’t vigilant enough. This again links it directly to migration and border crossing, and to some of the testimony from the Vizetelly trial: “A class of vile scoundrels came over to England simply because the freedom of our laws enabled them to carry on their nefarious trade which their own country probably would not allow”. In hearings held at the House of Commons in regard to the case, one witness suggested that law enforcement officials need to do more to limit the incursion of unwanted texts: “We ought not to have stood by while this terrible pestilence was spreading throughout the country. In other countries, the State undertook this duty” and that “on the whole, it was a much better and a more thorough way of dealing with this evil.” He then suggested that one role that the State should play is to “create a sounder public opinion” and that the House of Commons “could do that”. All of this is an interesting take on the role of the state that suggests that it should actively intervene. Interestingly, the Secretary of State replied that “the public judgment was a safer guide than that of any official, and if the general moral sense of the community did not compel individuals to prosecute, no good would be done by trying to create an artificial moral sense by the actions of the prosecutor”.

At the same time, though, it’s Henry Vizetelly who is being demonized during this trial, because by translating Zola he is spreading the disease of Zolaism, broadening the exposure of the virus to an otherwise healthy native population. In these same hearings, a Mr. De Lisle, of Leicestershire, suggested that the state should intervene as a kind of gatekeeper for unwanted discourse because “the evil affected the class of persons who were least able to resist it. Those who were rich and had comfortable homes might keep the evil from their doors; but the poor, who had little scope for the higher enjoyments of life, naturally picked up the literature which was nearest at hand. It was a terrible evil that this filth should be thrown in the faces of the people day after day; and therefore he hoped that the House, if it did express an opinion on the matter, would speak most emphatically, and be prepared, if necessary, to limit that liberty of publication of which in most respects we were so justly proud. The highest duty of Conservatives was the safeguard of the morals of the people; indeed he was convinced that if they allowed the corruption of moral sentiment, which had been going on for years, to continue, there was no system of government which could be erected which would long stave off the threatened clouds of revolution”. Another witness, Mr. Mundella, noted that there was an antidote in the form of a kind of vaccine, notably “the supply of healthy literature, and an intellectual training to preserve the young from the pernicious effects of the poisonous stuff to be met with” (14).

Licensing Crack-downs, Controls, and the Closing of Borders

So what is emerging here is an image of a moral duty, to be carried out by presumably enlightened officials, to control the borders by choosing appropriate imports. And interestingly, this control is to be effected on behalf of the poor, the downtrodden, and those who cannot protect themselves from the plague. To draw a comparison, we can suggest that domestic workers who consider themselves vulnerable to foreign workers are those who feel disadvantaged, and so rather than feeling international solidarity with the working class, they feel under siege from “foreign” workers. This explains why people who hardly benefit from, for example, Republican tax cuts to the wealthy and to big corporations, nevertheless consider that their interests are being served by Trump’s agenda. For them, the idea that international accords favoring environmental protection, international treaties that provide obligations to all host countries to protect vulnerable migrants, or international organizations that advocate for united nations, are all threats to their own body politic.

Similarly, those who prefer a cosmopolitan world, and who find benefit rather than threats from foreign goods and foreigners, feel that we should cooperate with international authorities, participate in international trade, and open up our borders to people who will bring new kinds of riches to our already rich and diverse society. For them, the challenge during a pandemic is to learn from the international community, to collaborate with officials all around the world, and to share rather than hoard knowledge and equipment. Rather than accusing foreigners and stereotyping people based on their countries of origin, internationalist-minded individuals suggest that we need to work with organizations such as the CDC and, moreover, the WHO, recognizing that a virus represents a threat to the entire world, and that during a pandemic, the source of the disease is everywhere, not just China, or Wuhan. From this perspective, the idea of borders, border patrol, and border protection are all expanded, and we learn a lot about our borders when considered in this light, because rather than militarizing our borders and demonizing foreigners, we see ourselves are part of complex, rich and diverse spaces that are naturally open to the world. Protecting the population involves invoking universal standards, established by experts, rather than blaming people who aren’t ourselves.

Instead, what we often hear, directly or indirectly, is a discourse of blame employed against so-called foreigners, including undocumented migrants, who are being branded as “filthy,” “dirty,” or “infected,” as though people who aren’t “from here” are more likely to have the virus. This is where the slippage occurs from appropriate quarantine or social distancing, to noxious xenophobia and racism. Putting the blame on foreigners doesn’t help rid the country of infected people, all it does is reinforce the idea, promulgated recently amongst the spring break revelers on the beaches of Florida, that the native population is somehow immune as long as foreigners aren’t allowed in. The same goes for rhetoric of hatred against “foreigners,” such as the manifestly false ideas that immigrants are more likely to commit crimes, and are therefore less deserving than we are of fundamental rights. These tendencies challenge the cosmopolitanism, the foundational universal values, and the human rights ideals that underwrite our immigration laws. Such documents as the 1948 Declaration of Human Rights, the 1951 refugee Convention, and the 1967 Protocol, which have provided beacons of hope, decency and respect, are now being attacked in the name of isolating domestic populations from dangerous influences from outside of America. The real threat to America, alas, are these very dangerous views of persons deemed “foreign.”

Robert F. Barsky is a Professor of Law, French, English, and Jewish Studies at Vanderbilt University.