Resource: Border Wall Foundations

By: F. Cartwright Weiland

January 1, 2018

Williamette L. Rev.

This article examines law and history related to President Donald Trump's "border wall, " and Mexico's alleged financial responsibility for the wall's construction. It argues that two classical texts provide a useful framing for the supplementary role Mexico - and Mexican law plays in achieving US. border security. Relying on the nineteenth-century accounts of Alexis de Tocqueville and Alexander von Humboldt, the article suggests that similar laws in the United States and Mexico historically have produced different results, since the characteristics of each country's democracy are distinct. That fact is crucial because Tocqueville and Humboldt show a pattern that repeats itself today: Mexico imports a U.S. legal model, that model does not function in optimal ways, social disorder persists in Mexico, and, finally, Mexico's weak rule-of-law triggers a U.S. response. The article then uses that historical template to analyze present-day border controls. The article shows that Mexico, on its own southern border, has adopted the three core features of the US. model - regulation functioning not only as a "wall," but also as a 'gate, " and "bridge." Since those legal structures were adopted in recent years, however, Central American migrants have arrived en masse on the US. 's southern border, and widespread violence related to illicit drugs continues unabated in Mexico, suggesting the limited effectiveness of Mexico's embrace of US-style approaches. To explain this problem, the article returns to Tocqueville and Humboldt to conclude that social mores - ones related to immigration in the United States, and criminality in Mexico - provide one reason for why regulatory fixes on both sides of the border are at best partial remedies, shedding light on issues that the law has difficulty addressing. The article concludes by offering brief reflections.