Volume 78, Number 4

October 2003

The (Un)Favorable Judgment of History: Deportation Hearings, the Palmer Raids, and the Meaning of History

Harlan Grant Cohen

As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history—past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of “special interest” aliens would be closed to the public. Applying Richmond Newspapers’s two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in the past. In this Note, Harlan Grant Cohen argues that the “history” test applied by the two courts has been misconceived. Drawing upon the history of the Palmer Raids of 1919-1920 and the treatment of Russian and Eastern European immigrants during the first Red Scare, Cohen argues that in examining the secret deportation question, Americans must ask themselves not what they have done in the past, but instead what lessons they should learn from those historical practices. Only with this deeper understanding of the past will Americans truly be able to understand the difficult policy choices of the present.