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 islamophobia and the law

Islamophobia and the Law is a foundational volume of critical scholarship on the

emerging form of bigotry widely known as Islamophobia. This book brings together
leading legal scholars to explore the emergence and rise of Islamophobia after the 9/11
terror attacks, particularly how the law brings about state-sponsored Islamophobia and
acts as a dynamic catalyst of private Islamophobia and vigilante violence against
Muslims. The first book of its kind, it is a critical read for scholars and practitioners,
advocates and students interested in deepening their knowledge of the subject matter.
This collection addresses Islamophobia in race, immigration and citizenship, criminal
law and national security, in the use of courts to advance anti-Muslim projects and in law
and society.

cyra akila choudhury is Professor of Law at Florida International University College

of Law. She is an internationally recognized expert in property, gender, minorities and
transnational security, and comparative law. Her scholarship appears in leading inter-
national law journals in the United States and a number of edited volumes.
khaled a. beydoun is Associate Professor of Law at University of Arkansas-Fayetteville
School of Law and Senior Affiliated Faculty at University of California-Berkeley Islamo-
phobia Research & Documentation Project. He is a leading law scholar on national
security, Muslim Americans and Islamophobia and the author of American Islamopho-
bia: Understanding the Roots and Rise of Fear.
Islamophobia and the Law

Edited by
CYRA AKILA CHOUDHURY
Florida International University College of Law

KHALED A. BEYDOUN
University of Arkansas-Fayetteville School of Law
 University Printing House, Cambridge cb2 8bs, United Kingdom
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Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781108422123
doi: 10.1017/9781108380768
© Cambridge University Press 2020
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2020
Printed in the United Kingdom by TJ International Ltd, Padstow Cornwall
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
names: Choudhury, Cyra Akila, 1971– editor. | Beydoun, Khaled A., 1978– editor.
title: Islamophobia and the law / edited by Cyra Akila Choudhury,
Florida International University; Khaled A. Beydoun, University of Arkansas School of Law.
description: Cambridge, United Kingdom ; New York, NY, USA Cambridge
University Press, 2020. | Includes index.
identifiers: lccn 2019040747 (print) | lccn 2019040748 (ebook) |
isbn 9781108422123 (hardback) | isbn 9781108433716 (paperback) | isbn 9781108380768 (epub)
subjects: lcsh: Muslims–Legal status, laws, etc.–United States. | Islamophobia–United States.
classification: lcc kf4869.m86 i825 2020 (print) | lcc kf4869.m86 (ebook) |
ddc 342.7308/5297–dc23
LC record available at https://lccn.loc.gov/2019040747
LC ebook record available at https://lccn.loc.gov/2019040748
isbn 978-1-108-42212-3 Hardback
isbn 978-1-108-43371-6 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
 Contents

Note on Contributors page ix

Acknowledgments xv

Introduction 1
Khaled A. Beydoun and Cyra Akila Choudhury
1 What Is Islamophobia?: The Rise of a Concept 1
2 Toward a Comprehensive Understanding of Islamophobia 5
3 A Legal Definition 7
4 The Law’s Islamophobia 12
5 The Structure of the Book 12
6 Conclusion 14

part i race and citizenship

1 The Citizen and the Terrorist 19

Leti Volpp
1 Introduction 19
2 On Racial Profiling 20
3 On Orientalist Tropes 25
4 On Citizenship and Identity 28
5 Conclusion 32

2 Race, Civil Rights, and Immigration Law after September 11, 2001:
The Targeting of Arabs and Muslims 34
Susan Akram and Kevin Johnson
1 Introduction 34
2 The Demonization of Persons of Arab and Muslim Ancestry 36

v
vi Contents

3 Racism in Times of National Crises 40

4 The Civil Rights Implications of the Modern War on Terrorism 47
5 Conclusion 54

3 Constructing Good Aliens and Good Citizens: Legitimizing the

War on Terror(ism) 56
Karen Engle
1 Introduction 56
2 Immigration Law and Bad Aliens 58
3 Bad Citizens 63
4 Bad Aliens and Bad Citizens in the War on Terrorism 64
5 Semiotic Dynamics at Work: The Creation of Good Aliens
and Good Citizens to Legitimize the War on Terrorism 69
6 Conclusion 75

4 A Rage Shared by Law: Post–September 11 Racial Violence

as Crimes of Passion 77
Muneer I. Ahmad
1 Introduction 77
2 “Private” and “Public” Racial Violence in the Aftermath
of September 11 79
3 The Construction of “Muslim-Looking” People and the “Logic” of
Fungibility 84
4 Understanding the Origins of Post–September 11 Hate Violence 85
5 Post–September 11 Racial Violence as Crimes of Passion 89
6 The Role of Violence in Fomenting Law after September 11 89
7 Conclusion 91

part ii the politics of islamophobia in the courts

5 The Lost Story of Iqbal 95

Shirin Sinnar
1 Introduction 95
2 The Lost Story: Javaid Iqbal 97
3 The Lost Story: Race, Religion, and the Post–9/11 Detentions 102
4 Rereading Iqbal at the Juncture of Procedure and Substance 108
5 Conclusion 112

6 “Muslim Bans” and the (Re)making of Political Islamophobia 113

Khaled A. Beydoun
1 Introduction 113
2 America’s First “Muslim Ban” 114
3 The Modern Law of American Islamophobia 117
 Contents vii

4 The Politics of Islamophobia 122

5 Conclusion 130

7 “Islamic Law” in US Courts: Judicial Jihad or

Constitutional Imperative? 132
Faisal Kutty
1 Introduction 132
2 The First Amendment and Religion in US Courts 134
3 Cases Invoking Contract Principles, Comity, and Public Policy 138
4 Multiculturalism and Legal Pluralism 144
5 Conclusion 147

part iii islamophobia in criminal law and national

security law

8 A Muslim Registry: A Look at Past Practices and What May

Come Next 153
Abed A. Ayoub
1 Introduction 153
2 Arab and Muslim 154
3 Operation Boulder 154
4 Gulf War I and Special Registration 161
5 Post 9/11 and the National Security Entry Exit Registration System
(NSEERS) 162
6 Full NSEERS Termination 165
7 The Muslim Registry: What’s Next? 168

9 National Security’s Broken Windows 170

Amna A. Akbar
1 Introduction 170
2 A Taxonomy of National Security Community Policing 172
3 Disorder and Radicalization 182
4 Racializing Muslims 185
5 Conclusion 191

10 Muslim Radicalization in Prison: Responding with Sound

Penal Policy or the Sound of Alarm? 193
SpearIt
1 Approaching and Interpreting Prisoner Radicalization 193
2 Alarmism and Political Distortions 195
3 Muslims in Criminal Justice 197
4 Racial and Religious Discrimination 204
5 Conclusion and Forward 205
viii Contents

part iv law, society, and islamophobia

11 Property Lawfare: Historical Racism and Present Islamophobia

in Anti-Mosque Activism 213
Cyra Akila Choudhury
1 Property Lawfare: The Law’s (Mis)uses in Anti-Mosque Activism 215
2 Property Lawfare and Its Distributional Consequences 222
3 Conclusion 228

12 “Liberty and Death” 230

Karen Ellis Rhone
1 Introduction 230
2 The Legacy of Legally Imposed Segregation in the United States 232
3 Adjudicating Hate 238
4 Segregation, Hate, and the Law since the September 11
Terror Attacks 241
5 Wars and the US Foreign Policies That Segregate
Muslims Globally 245

13 The Gender of Islamophobia 249

Aziza Ahmed
1 Introduction 249
2 September 11 and the Bush Administration 250
3 The Obama Administration 255
4 Donald Trump: Exploiting an Existing Narrative about Gender
and Islam 256
5 Conclusion 260

14 Coercive Assimilationism and Muslim Women’s

Identity Performance in the Workplace 261
Sahar F. Aziz
1 Introduction 261
2 Performing Identity at Work: The Case of Muslim
Women of Color 264
3 The Triple Bind: Irreconcilable Intergroup, Intragroup,
and Intersectional Identity Performance Pressures 267
4 Expanding Title VII Jurisprudence to Keep Up with Discrimination 272
5 Conclusion 279

Index 281
 Note on Contributors

Muneer Ahmad is Clinical Professor of Law at Yale Law School, where he co-
teaches in the Transnational Development Clinic and the Worker and Immigrant
Rights Advocacy Clinic (WIRAC). He received his AB from Harvard University
(1993) and his JD from Harvard Law School (1996). His scholarship examines the
intersections of immigration, race, and citizenship in both legal theory and legal
practice.
Aziza Ahmed is Professor of Law at Northeastern University School of Law. She is
an internationally renowned expert in health law, criminal law, and human rights.
Her scholarship examines the legal, regulatory, and political environments regarding
health in US domestic law, US foreign policy, and international law. She teaches
property law, reproductive and sexual health and rights, and international health
law: governance, development, and rights. Professor Ahmed was selected as a fellow
with the program in Law and Public Affairs (LAPA) at Princeton University for
2017–2018. She combined a sabbatical and her fellowship, spending the academic
year developing her work on law, feminism, and science into a book with particular
emphasis on how women’s health advocates shaped the AIDS response. She has also
written extensively about abortion and reproductive health. Professor Ahmed’s
scholarship has appeared in the University of Miami Law Review, the American
Journal of Law and Medicine, the University of Denver Law Review, the Harvard
Journal of Law and Gender, the Boston University Law Review (online) and the
American Journal of International Law (online), among other journals.
Amna A. Akbar is Associate Professor of Law at The Ohio State University Moritz
College of Law. Her research and teaching focus on social movements, race, and
policing. She received her BA from Barnard College, Columbia University, and her
JD from the University of Michigan.

ix
x Note on Contributors

Susan Akram directs Boston University School of Law’s International Human

Rights Clinic, in which she supervises students engaged in international advocacy
in domestic, international, regional, and UN fora. She earned her BA with honors
from the University of Michigan–Ann Arbor, a JD from Georgetown University, and
a Diplome in International Human Rights from the Institut International des Droits
de l’Homme. Her research and publications focus on immigration, asylum, refu-
gees, forced migration, and human and civil rights issues, with an interest in the
Middle East and the Arab and Muslim world. Since September 11, 2001, she has
presented widely on the USA PATRIOT Act and on immigration-related laws and
policies, as well as on her work challenging standard interpretations of women’s
asylum claims from the Arab/Muslim world.
Abed A. Ayoub serves as the national legal and policy director of the American–Arab
Anti-Discrimination Committee (ADC), the country’s largest Arab American civil
rights organization. Throughout his career Ayoub has worked to address issues
impacting Arabs and Muslims in the United States, including matters related to
discrimination, immigration, hate crimes, surveillance, and profiling. Ayoub works
to enhance the community’s economic empowerment and access to education.
Under his leadership, the ADC legal department has successfully assisted and
provided support to thousands of impacted community members. He regularly
advocates on behalf of the community with lawmakers and government agencies.
Ayoub is a native of Detroit, Michigan.
Sahar F. Aziz is Professor of Law, Chancellor’s Social Justice Scholar, and Middle
East and Legal Studies Scholar at Rutgers University Law School. Professor Aziz’s
scholarship adopts an interdisciplinary approach to examine intersections of
national security, race, and civil rights, with a focus on the adverse impact of
national security laws and policies on racial, ethnic, and religious minorities in
the United States. Her research also investigates the relationship among authoritar-
ianism, terrorism, and the rule of law in Egypt. She is the founding director of the
interdisciplinary Rutgers Center for Security, Race, and Rights. She is also a faculty
affiliate of the African American Studies Department at Rutgers University–Newark
and an editor for the Arab Law Quarterly. Professor Aziz’s academic articles have
been published in the Harvard National Security Journal, the Washington and Lee
Law Review, the Nebraska Law Review, the George Washington International Law
Review, the Penn State Law Review, and the Texas Civil Rights and Civil Liberties
Journal. Her book The Muslim Menace: The Racialization of Religion in the Post-9/
11 Era is forthcoming from Harvard University Press.
Khaled A. Beydoun is a law professor and author. He currently teaches at the
University of Arkansas School of Law and is a senior affiliated faculty member at the
University of California Berkeley School of Law. His work examines the tension
between the First Amendment and the War on Terror, and has been featured in the
 Note on Contributors xi

California Law Review, the UCLA Law Review, the Northwestern Law Review, and
other top journals. He is also the author of the critically acclaimed book American
Islamophobia: Understanding the Roots and Rise of Fear. He was awarded an Open
Society Foundation Equality Fellowship to educate Muslim American commu-
nities about the threat of surveillance. He is a native of Detroit.
Cyra Akila Choudhury is Professor of Law at Florida International University
College of Law in Miami. She also serves as faculty in the Muslim World Studies
Program and the Middle East Studies program at FIU. Her scholarship focuses on
legal theory, race, and comparative law in gender and family, property, and human
rights. Her publications have appeared in the University of Colorado Law Review,
the Columbia Journal of Gender and the Law, the Michigan Journal of International
Law, the Berkeley Journal of International Law, and the Vanderbilt Journal of
Transnational Law, among others. She is part of the Third World Approaches to
International Law (TWAIL) network and served as faculty the Institute for Global
Law and Policy at Harvard. She has a JD cum laude and LLM from Georgetown
University Law Center, an MA in political science from Columbia University, and a
BA (with honors) in political science from The College of Wooster.
Karen Engle is Minerva House Drysdale Regents Chair in Law and Founder and
Co-director of the Bernard and Audre Rapoport Center for Human Rights and
Justice at the University of Texas School of Law. She teaches and researches in the
fields of public international law, international human rights law, and legal theory.
Her books include The Grip of Sexual Violence in Conflict: Feminist Interventions in
International Law (Stanford University Press, 2019), Anti-Impunity and the Human
Rights Agenda (Cambridge University Press, 2016) (co-editor), and The Elusive
Promise of Indigenous Development: Rights, Culture, Strategy (Duke University
Press, 2010), which received the Best Book Award from the American Political
Science Association Section on Human Rights. Engle has been a member of the
Institute for Advanced Study in Princeton, a Fulbright Senior Specialist, and a
resident at the Rockefeller Foundation Bellagio Center. She received her JD magna
cum laude from Harvard Law School and a BA with honors from Baylor University.
Kevin R. Johnson is the dean and Mabie-Apallas Professor of Public Interest Law
and Chicana/o Studies at the University of California–Davis School of Law. Dean
Johnson earned his AB in economics from UC Berkeley and graduated magna cum
laude with a JD from Harvard Law School. He has published extensively on
immigration law and civil rights. Published in 1999, his book How Did You Get to
Be Mexican? A White/Brown Man’s Search for Identity was nominated for the
2000 Robert F. Kennedy Book Award. Dean Johnson’s latest book, Immigration
Law and the U.S.–Mexico Border (2011), received the Latino Literacy Now’s Inter-
national Latino Book Awards for best reference book. Dean Johnson blogs at
ImmigrationProf, and is a regular contributor on immigration on SCOTUSblog.
xii Note on Contributors

Faisal Kutty teaches at Barry University Law School in Orlando, Florida. He also
serves as an adjunct professor at Osgoode Hall Law School of York University in
Toronto and as counsel to Kutty & Associates, a Toronto law firm. He co-founded
the Canadian chapter of the Council on American Islamic Relations (CAIR) and
served as its first legal counsel. He studied economics at York University and holds a
JD from the University of Ottawa and an LLM from Osgoode Hall Law School. He
completed his PhD course work at Osgoode. While in law school, he served as a
book reviews and articles editor for the Ottawa Law Review. In addition to his
academic publications, Faisal has published more than two hundred op-eds in the
Toronto Star, the National Post, the Globe and Mail, Al Jazeera, the Middle East
Eye, the Arab News, the Indian Express, the Express Tribune, and elsewhere. For the
past nine consecutive years he has been included in The Muslim 500: The World’s
Most Influential Muslims.
Karen Ellis Rhone is a scholar of international relations, comparative law, and
global policy. She earned an MA and PhD in political science from the University of
Chicago. She also earned a BS in economics (magna cum laude) and a BA in
political science (magna cum laude) from William Paterson University. She is a
longtime coordinator of the Money, Markets & Governance Workshop at the
University of Chicago. She is also a former law and social sciences doctoral fellow
at the American Bar Foundation. Much of that work focused on Islamic law, Islamic
economics, and on her corresponding fieldwork in Dubai, Doha, and Amman. Her
current projects focus on financial alliances, international institutions, and the
overall distribution of power in the global economy.
Shirin Sinnar is Professor of Law and the John A. Wilson Faculty Scholar at
Stanford Law School. Her scholarship addresses national security law, race, and
civil rights litigation, including the role of institutions in protecting individual rights
and democratic values. Her articles have been published in the Harvard Law
Review, the Stanford Law Review, the Georgetown Law Journal, and in other
journals. Prior to joining Stanford Law School, she served as a civil rights lawyer
with the Asian Law Caucus and the San Francisco Lawyers’ Committee for Civil
Rights, where she represented individuals in employment discrimination and
national security profiling cases. She also clerked for U.S. Ninth Circuit Court of
Appeals Judge Warren J. Ferguson. She is the recipient of the 2017 Mike Lewis Prize
for her article, “The Lost Story of Iqbal,” and the 2016 John Bingham Hurlbut
Award for Excellence in Teaching.
SpearIt earned a BA in philosophy, magna cum laude, from the University of
Houston, a master’s in theological studies at Harvard Divinity School, a PhD in
religious studies at the University of California–Santa Barbara, and a JD from the
University of California Berkeley School of Law. Currently, he is a professor of law
at Thurgood Marshall School of Law, Texas Southern University, where he teaches
 Note on Contributors xiii

evidence, professional responsibility, and criminal procedure. SpearIt has extensive

teaching experience; in addition to teaching law, he has taught undergraduate
courses and taught inmates at San Quentin State Prison. He is the author of
American Prisons: A Critical Primer on Culture and Conversion to Islam (First
Edition Design Publishing, 2017). He also serves as chair of the American Bar
Association Subcommittee on Pell Grant Funding, is a board member of the
American Association of Law Schools Section on Law and Religion and Section
on Minority Groups, and is a contributing editor to The Islamic Monthly magazine
and JOTWELL Criminal Law.
Leti Volpp is the Robert D. and Leslie Kay Raven Professor of Law and the Director
for the Center of Race and Gender at UC Berkeley. She researches immigration
law and citizenship theory. Her recent publications include “Protecting the Nation
from ‘Honor Killings’: The Construction of a Problem,” Constitutional Commen-
tary (2019), “Passports in the Time of Trump,” Symploke (2018), and “Refugees
Welcome?” La Raza Law Journal (2018). She is the co-editor of Looking for Law in
All the Wrong Places (with Marianne Constable and Bryan Wagner) (Fordham
University Press, 2019), and Legal Borderlands: Law and the Construction of Ameri-
can Borders (with Mary Dudziak) (Johns Hopkins University Press, 2005).
 Acknowledgments

This book was conceived in 2015 before the rise of Donald Trump but well into the
War on Terror, during which there has been an unprecedented burgeoning of
Islamophobia. I would like to thank my co-editor Khaled for joining the venture
when I approached him out of the blue, even though he did not know me at the
time. His insights and collaboration have certainly enriched my own work and taken
me in new directions. I consider him a brother in the struggle against Islamophobia
and subordination of all kinds. I thank our contributors for their willingness to be
included in this volume. Many of them trusted us to include and excerpt their work.
A number of our contributors also contributed original pieces, bringing new ideas
about Islamophobia and the law to light. I am very grateful to everyone for their
support and hard work.
The project was funded by summer research grants from Florida International
University (FIU) College of Law. Monica Ishak and William Diab provided excel-
lent research assistance. Marisol Floren at FIU College of Law library was incredibly
helpful in digging up somewhat obscure court materials and also in citation
checking. I am also grateful to our editors at Cambridge University Press, who were
enthusiastic about this volume from the start, John Berger (who is no longer at
Cambridge), Joshua Penney, and Jackie Grant. We are also very lucky to be able to
feature Ebtisam Abdulaziz’s unique art on the cover, and we are thankful for her
support and generosity. Many other colleagues and fellow travelers have been part of
the conversation throughout my career, and I acknowledge their many acts of
intellectual generosity even if I cannot name them all here. I am particularly grateful
to those in the legal academy who supported me through some very difficult times as
a minority woman and junior scholar.
The book would not have been possible without the support of my partner and
intellectual sounding board, Ben Hamlin. His love and understanding have been
sustaining throughout my career. It is a joy to be able to share that which is

xv
xvi Acknowledgments

important and to laugh about that which is insignificant. And since November 2016,
we have found much to laugh about together even in dark times.
My mother and father, Parveen and Abdul Momen Choudhury, were also
important interlocutors and supporters throughout my career. My sister, Naseem
Choudhury, and brother-in-law, Jody Perrett, could always be relied upon to hash
out thoughts about both immigrant Muslim communities and the current political
situation. For the gift of a family that discusses, argues, and expands my thinking,
I am very grateful. My in-laws, the Hamlins, have always been joyous and intellec-
tually challenging; in many ways, they too have shaped me as a scholar and teacher.
This book is dedicated to all those who have lost their lives, been the subject of
violence and hate because they are Muslims, who have been targeted for interven-
tion globally in the Muslim world and who continue to struggle for a more just
world in spite of the difficulties. It is also dedicated to my two nieces, Magda and
Suraiya. May they thrive in a world with less Islamophobia and hate. May they live
in a world that values honesty and kindness.
Cyra Akila Choudhury

Above all, I would like to thank my family, most notably, my mother, Fikrieh
Beydoun. In addition, I would like to thank my intellectual community within
and beyond legal academia, specifically Kimberle Crenshaw, Devon Carbado,
Bernadette Atuahene, Ediberto Roman, Erika Wilson, the UCLA Critical Race
Studies community, and the University of California Islamophobia Research and
Documentation Project community. Finally, I owe gratitude to the Open Society
Foundation, which supported my research and praxis work through the Equality
Fellowship.
Khaled A. Beydoun
 Introduction

Khaled A. Beydoun and Cyra Akila Choudhury

1 what is islamophobia?: the rise of a concept

Muslims in America are no strangers to prejudice and disparate treatment based on
perceived difference. Particularly during moments of crisis, whether local or global,
media pundits and academics offer opinions about political Islam and modernity
regardless of their actual expertise, while Muslims brace for the inevitable backlash.
Much of the current Manichean thinking about Islam has a long history and can be
traced back to the very first encounters between Christians and Muslims. But more
recently scholars like Bernard Lewis and Samuel Huntington have argued that
“Islam” is at odds with “the West” – both of these constructed as mutually exclusive
and monolithic. As part of this long-standing tradition of scholarship that seeks to
differentiate Islam from Judeo-Christianity and Europe, some experts continue to
advance the view that Islam is incompatible with liberal values and democracy at
large because of the essential differences between the two.
In his pathbreaking work, the late Edward Said argued that what is (mis)under-
stood as “Islam” in the West has largely been a projection of Western fears and
fantasy for several centuries. He coined the term Orientalism, and theorized about
Western scholars’ engagement with Islam and Muslims, to describe this scholarship,
which often substituted the voices, experiences, and self-knowledge of Arabs and
Muslims with those of Western experts. Some of these experts had never even been
to the countries they opined about. While genuine scholars with deep expertise, of
course, exist, one of the enduring features of Orientalism is the elevation of the
“objective” scholarship of those who are not themselves Arabs or Muslims. This
expertise has come with the erasure of bona fide Muslim voices until recently. The
self-representation of native scholars, as a result, has often been viewed with suspi-
cion, if not dismissed as biased.
Fast-forwarding several decades, we find the terror attacks of September 11, 2001, a
watershed moment in the United States. In their wake, a renewed interest in the

1
2 Khaled A. Beydoun and Cyra Akila Choudhury

Middle East, North Africa, and Asia flourished, giving rise to both more serious
scholarship and self-appointed, neo-Orientalist experts in Islam. And because few
non-Muslim Americans have had interactions with Muslims, the portrayals on
television, movies, and by scholars have become the prevailing received knowledge
for most people. A great deal of what emerged in the aftermath of 9/11, and with the
rise of an industry of national security experts like Frank Gaffney and Brigitte
Gabriel, has been blatantly prejudiced against Islam and Muslims. For many years,
this form of American animus did not have a name – or at least did not have a name
that scholars agreed upon, one that mainstream media voices regularly used or that
activists and advocates on the ground adopted. However, the political realities and
the lived experiences of the post–9/11 world required new terms and fresh theories.
Orientalism was still a potent phenomenon, yet the term and theory were largely
confined to academic discourses and had been crafted before 9/11.
Unlike earlier crises, the 9/11 attacks were perpetrated on the “homeland.” As a
result, they made clear for the first time that American communities were vulner-
able. The 9/11 attacks were categorically different because the threat was no longer
“out there” but could very well penetrate deep within US communities. The
response to the attacks, as many of the chapters in this volume describe, ranged
from the institutional and political targeting of Muslims through national security
measures to private violence unleashed on the streets. Over the decade that
followed, the targeting of Muslims as subjects of surveillance, regulation, and
violence resulted in the development of a discourse and vocabulary that sought to
carefully describe state and private animus. The rise of the term Islamophobia can
be traced as part of this development, and indeed emerged into a concept within
academic literatures, but also was championed by advocates and activists on the
ground, in the media, and beyond. The term is now widely understood as a
cognizable form of animus toward Muslims and perceived Muslims, but it remains
hotly debated and disparately defined.
Some critics, who believe that the perils posed by Islam and Muslims should be
legitimately feared and confronted, oppose the term because it makes “irrational”
what they claim to be entirely rational. Such critics often see Islam and Muslims as a
monolith and argue that treating Muslims differently is a justified response. In fact,
the ongoing treatment of Muslims as aberrant threats is precisely one of the reasons
the term Islamophobia is useful. Just as Islamophobes carve out Muslims as excep-
tional threats because of their connection to Islam, the term reflects this very specific
operation of using a single identity to exceptionalize by focusing on the basis of that
identity: Islam.
Academic critics may claim that the term Islamophobia is too diffuse and impre-
cise to be of much analytical value. After all, it seeks to describe a host of practices
and beliefs that may be only loosely related by the reference to Islam or Muslims.
But, again, that is precisely why we think the term is valuable. It is capacious enough
to capture the complexity of the various theoretical and practical manifestations of a
 Introduction 3

multifaceted animus towards Islam and Muslims that is not reducible only to race,
religion, or national origin. Islamophobia as a theoretical concept attempts to
encapsulate the intersectional, shifting, dynamic othering of Muslims and Islam
where these are not incidental but central to that othering, even if combined with
other identities. As a result, the term itself is used in multiple ways and in different
contexts throughout this volume. Moreover, the subjects of Islamophobia are not
only “real” Muslims and believers in Islam, but include those who may be mistaken
for Muslims. For instance, when a mathematician is removed from a flight because
mathematics is mistaken for Arabic, we understand this to be an example of
Islamophobia. When turbaned Sikhs or women wearing a scarves are targeted as
Muslims, this is also Islamophobia. These incidents are incomprehensible without
the animus towards Muslims and Islam. They cannot be understood as racism or
sexism alone. We acknowledge that conceptually Islamophobia is necessarily impre-
cise, which is both a strength and a weakness. However, no other term makes these
phenomena immediately intelligible (even if reductively) to a wide range of audi-
ences in way that resonates now more than at any other time in the history of the
United States.
While the targeting of Muslims and the vilification of Islam saw a dramatic
increase in the aftermath of 9/11, it took Donald Trump’s presidential campaign to
elevate Islamophobia to a full-fledged political strategy. From the beginning of his
bid for president, Trump took every opportunity to vilify Islam and Muslims.
Dismissing white nationalist violence and threats, Trump repeatedly focused on
Muslims, tying them collectively to foreign threats. Because of the centrality of this
strategy as a means of mobilizing his supporters, Trump could be called the
“Islamophobia president.”1 Furthermore, following up on his promises to stop
threatening immigrants from invading the country, Trump enshrined Islamophobia
as presidential policy during his first week in office by issuing the first travel ban
targeting seven Muslim-majority nations.2 As such, Islamophobia is now firmly at the
center of American life. It has become a means by which other political aspirants
can gin up fear while consolidating support among a vocal white-supremacist base.
The term Islamophobia has now become mainstream among a diverse collective of
activists and academics confronting the social, political, and legal phenomena. It is
now routinely used in social media, the news, and increasingly in a growing
academic literature of which this volume is a part.
While a full review of the literature is beyond the scope of this introduction, it is
important to briefly sketch the origins of the term. Islamophobia was established in
the scholarly literature by a range of sources. The Runnymede Trust, a British think

1
Khaled A. Beydoun, Donald Trump: The Islamophobia President, Al Jazeera English
(Nov. 9, 2016), available at https://www.aljazeera.com/indepth/opinion/2016/11/donald-trump-
islamophobia-president-161109065355945.html.
2
White House, Executive Order Protecting the Nation from Foreign Terrorist Entry into the
United States, Jan. 27, 2017.
4 Khaled A. Beydoun and Cyra Akila Choudhury

tank, is widely recognized to be the first entity to coin the term Islamophobia. In a
study conducted in the early 1990s, it defined Islamophobia as an “unfounded
hostility towards Muslims, and therefore fear or dislike of all or most Muslims.”3
This definition did not attain broad acceptance or appeal until after the 9/11 terror
attacks and their aftermath, when targeting and scapegoating of Muslims followed.
A 2011 study titled Fear, Inc.: The Roots of the Islamophobia Network in America built
on the foundational definition offered by Runnymede and added another dimen-
sion to the anti-Muslim network based in the United States. The study did not offer
an explicit definition, but exposed the network of pundits, lobbyists, and organiza-
tions committed to and collaborating in the maligning of Islam and Muslims:
And it all starts with the money flowing from a select group of foundations. A small
group of foundations and wealthy donors are the lifeblood of the Islamophobia
network in America, providing critical funding to a clutch of right-wing think tanks
that peddle hate and fear of Muslims and Islam—in the form of books, reports,
websites, blogs, and carefully crafted talking points that anti-Islam grassroots organ-
izations and some right-wing religious groups use as propaganda for their
constituency.4

Fear, Inc. noted the financial interests pushing Islamophobia and demystified the
idea that it was an entirely “irrational” form of animus or fear. Other programs that
popularized the term and added to the growing literature were Georgetown Uni-
versity’s The Bridge Initiative, a research project on Islamophobia and UCLA’s
Islamophobia Research and Documentation Project. Professor Stephen Sheehi’s
book Islamophobia: The Ideological Campaign Against Muslims was one of the first
monograph-length treatments of the subject.5 In the United Kingdom, Dr. David
Tryer’s The Politics of Islamophobia: Race, Power and Fantasy examined similar
themes, such as the racialization of Muslims.6 Most recently, in his book Islamo-
phobia and Racism in America, sociologist Erik Love also offers a definition of
Islamophobia that frames it as racism against Muslims and perceived Muslims.7
Adopting a critical race theory lens, Love sees Islamophobia as a fluid form of racism
unleashed distinctly by state and private actors. These definitions rank among the
most resonant and cogent framings of Islamophobia that inform the definition we
advance in this book.
In the following section, we develop the concept of Islamophobia in greater
depth, exploring some of the shortcomings of the popular use of the term. We then

3
Robin Richardson, Islamophobia: A Challenge for Us All (1997).
4
Wajahat Ali, et al., Fear Inc.: The Roots of the Islamophobia Network in America, Center for
American Progress 1, 9–10 (2011).
5
See Stephen Sheehi, Islamophobia: The Ideological Campaign Against Muslims (2011).
6
See David Tryer, The Politics of Islamophobia: Race, Power and Fantasy (2013).
7
Erik Love, Islamophobia and Racism in America (2017).
 Introduction 5

elaborate on the legal definition of the term and how law is an integral part of
Islamophobia.

2 toward a comprehensive understanding

of islamophobia
Media pundits and politicians, lawyers and advocates, and scholars within the legal
academy and beyond now use the term Islamophobia, further entrenching it into
the scholarly and popular lexicons. However, until recently, a comprehensive
definition was still lacking, and specifically a definition of Islamophobia that encom-
passes the law’s role in maintaining and perpetuating it, the ties the modern animus
toward Islam and Muslims has to preceding systems, and how the intimate relation-
ship between government action and society has the potential to authorize private
violence against Muslims. Before we articulate a fuller definition, it is important to
briefly discuss the shortcomings of the prevailing uses of the term.
First, popular definitions of Islamophobia tend to center on the acts of individ-
uals, specifically those who are framed as deviants or fringe actors and whose actions
are deemed as irrational and disconnected from prevailing political discourses or
“War on Terror” policy. Islamophobes, like Craig Hicks, who executed three
Muslim students in Chapel Hill, North Carolina on February 10, 2015,8 are profiled
as aberrant, lone actors whose hate for Islam and violent actions are not emblematic
of a broader culture or inspired by tropes and narratives endorsed by state policy.
However, Islamophobia is far more than mere ignorance or hatred on the part of
individuals and supersedes “fear and dislike” of Islam and Muslims9 on the part of
presidents or politicians. These definitions caricature Islamophobia as irrational10
when, in fact, demonization of Islam and discriminatory policies are rational and
increasingly successful strategies. This is exemplified most vividly by Donald
Trump’s capitalization of Islamophobia to mobilize supporters during the 2016 presi-
dential campaign and placate his base during the earliest stages of his presidency by
signing the “Muslim Ban” executive order only one week after his inauguration.
Second, these definitions limit Islamophobia to beliefs and actions held by private
actors, not state institutions. This narrow framing exempts the state from charges of
propagating Islamophobia and excuses it from accountability. Such a truncated
description, particularly during the never-ending global War on Terror, fails to
connect how the acts of individuals are inspired by the policies and messages
disseminated by the state in its counterterrorism and national security policies and
actions. For example, the Supreme Court upholding the (third version) of the
8
Saeed Ahmed and Catherine E. Schoichet, 3 Students Killed in Chapel Hill Shooting, CNN
(Feb. 11, 2015).
9
Bridge Initiative Team, Islamophobia: The Right Word for a Real Problem (Ap. 26, 2015).
10
Islamophobia can be deeply irrational. Our point is that it is not always so and that, for several
decades, it has proven to be a well-thought out and productive political strategy.
6 Khaled A. Beydoun and Cyra Akila Choudhury

“Muslim Ban” executive order in Trump v. Hawaii demonstrates the state’s central
role in not only endorsing Islamophobic fears and anxieties,11 but also in authorizing
it through symbolic declarations and state action.
Third, standing definitions largely fixate on the most stark and egregious forms of
Islamophobia. Namely, recorded and registered hate crimes, attacks on conspicuous
Muslims, murders, arson and vandalism of mosques, or explicit slurs, projecting the
idea that Islamophobia is limited to openly visible acts of violence or bigotry. By
training our attention on the spectacular and the extreme, much of the quotidian
forms of Islamophobia that pervade society are ignored. Moreover, people need not
confront the ideology of Islamophobia if Islamophobia is reduced to unconnected,
random acts of violence and hate that occur spontaneously and therefore cannot be
predicted or stopped.
Fourth, definitions of Islamophobia limit its victims to Muslims, when in fact a
number of non-Muslim groups are also vulnerable to and targeted by it. Since Islam
is commonly “racialized” or perceived in racial or religious terms, ethnic groups –
turban-wearing Sikhs, for example – who fit stereotypical caricatures of Muslims and
are frequent targets particularly by individual actors. This was vividly illustrated five
days after the 9/11 terror attacks when Frank Roque shot and killed Balbir Singh
Sodhi, the Sikh owner of a Chevron gas station, in Mesa, Arizona.12
Fifth, formative conceptions of Islamophobia have not adequately recognized it as
a form of animus that intersects with other forms of subordination and discrimin-
ation. As theorized in her landmark piece, “Mapping the Margins: Intersectionality,
Identity Politics, and Discrimination Against Women of Color,”13 Kimberlé Cren-
shaw examined the compounded stigma faced by women of color along the
converging lines of two subordinate identities (gender and racial identity). Crenshaw
coined the term intersectionality, which is now widely used to denote multiple
subordinations. As we note above, Islamophobia is deeply intersectional. It is a form
of animus that interacts and overlaps with other forms of stigma and subordination,
most notably racism, sexism, class/poverty, colorism, and more. The definition of
Islamophobia advanced by this project enables an intersectional examination of
Islamophobia, and the book comprises articles that underscore this analysis.
Finally, early definitions of Islamophobia characterize it as a modern phenom-
enon spawned in the aftermath of the 9/11 terror attacks. In her seminal article “The
Citizen and the Terrorist,” excerpted in this book, Professor Leti Volpp wrote, “We
are witnessing the redeployment of old Orientalist tropes. Historically, Asia and the
Middle East have functioned as phantasmic sites on which the U.S. nation projects
a series of anxieties regarding internal and external threats to the coherence of the

11
Trump v. Hawaii, 138 S.Ct. 2392, 2402, 201 L. Ed. 2d 775 (2018).
12
Tamar Lewin, Sikh Owner of Gas Station Is Fatally Shot in Rampage, N.Y. Times, Sep.
17, 2001.
13
Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Discrimin-
ation against Women of Color, 43 Stan. L. Rev. 1241, 1241 (1993).
 Introduction 7

national body.”14 This observation, made in the immediate wake of the 9/11 terror
attacks and during the earliest stages of the War on Terror, connected the uptick in
animus against Islam and profiling of Muslims with a long-standing discourse of
Orientalism that predates Islamophobia but informs and empowers it.15 Islamopho-
bia, as we argue above, is the progeny of Orientalism which frames the “Orient,” of
which the monolithic and essential “Muslim world” is a part, as the mirror opposite
and civilizational antithesis of the “Occident,” or the West.16 In the next section, we
argue that law is vital to theorizing Islamophobia, and any intervention or discourse
that seeks to grapple with it.

3 a legal definition
Law is central to the broader project of Islamophobia. Islamophobia consequently
cannot be adequately theorized or explained without an account of the operations of
law. By law, we mean both positive laws enacted by the state in local, state, and
federal institutions, but also the social norms that prevail. As such, our broad
understanding of “law” is in keeping with the law and society literature and with
the view that overly formal conceptions of the law miss the ways in which society is
regulated and regulates itself through informal policing of norms that may not
appear in any legislative code or judicial decision. While there are sociological
approaches to the study of Islamophobia, we are interested in this volume in the way
that Islamophobia pervades legal institutions and enactments, and in the laws’
effects on society.17
In the Columbia Law Review Online, Professor Beydoun advanced a legal
definition and theoretical framework for understanding Islamophobia,18 which we
refine and elaborate here. While the authors in this volume may vary in their
understanding of the concept, we think that the articulation advanced by Professor
Beydoun encompasses the variations found in the chapters and provides a starting
point from which to expand the theorization of Islamophobia.
Islamophobia is the presumption that Islam is inherently violent, alien, and
inassimilable, combined with the belief that expressions of Muslim identity are
correlative with a propensity for violence and terrorism. However, because Islamo-
phobia is part of the cultural and political landscape shaped by centuries of

14
Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. Rev. 1575, 1586 (2002).
15
Edward Said, Orientalism (1979).
16
Id.
17
The institutionalization of Islamophobia is made clear in the War on Terror policies and
programs, in executive actions and judicial rulings, and most starkly in the wholesale restruc-
turing of the state national security apparatus and the creation of the Department of Homeland
Security (DHS).
18
Khaled A. Beydoun, Islamophobia: Toward a Legal Definition and Framework, 116 Col.
L. Rev. Online 108, 108 (2016).
8 Khaled A. Beydoun and Cyra Akila Choudhury

differentiation and notions of civilizational superiority, it need not manifest in its

most extreme forms.
We suggest that even those who would disavow any belief that Islam is unassimil-
able and violent may be advancing Islamophobic ideas nevertheless. For example,
the common use of the term moderate Muslim assumes that there are some “good
Muslims” who will assimilate, who are not violent or alien. Yet this very common
liberal formulation incorporates ideas that in order to fit in or to be acceptable,
Muslims must interpret and perform their faith and identity in line with the
dominant culture. There is a shared sense, then, that Islam is Western civilization’s
antithesis or that it is essentially different and/or incompatible. This is the discursive
and structural landscape in which Islamophobia is perpetuated by state institutions,
as well as by private institutions and citizens. Furthermore, and to reiterate some
earlier points, Islamophobia is a fluid and dynamic process by which law, state
policy, and action targeting Muslims endorse prevailing stereotypes and, in turn,
embolden private targeting of Muslims and perceived Muslims.19
The definition advanced by Professor Beydoun includes three dimensions or
subdefinitions, which identify and enable analyses of the distinct forms of Islamo-
phobia that comprise the broader phenomenon. These dimensions are: (1) private
Islamophobia; (2) structural Islamophobia, and; (3) dialectical Islamophobia. These
are not exclusive nor entirely separate, but interact with one another in complex
ways. Professor Choudhury’s work has elaborated on the discursive construction of
Islam and Muslims as a threat.20 By capturing and resignifying the language of Islam
and redefining words like shari’ah, dhimmi, jihad, and others, Islamophobes discur-
sively link Muslims and the practice of Islam to violence and terror. By asserting that
part of Muslim religious practice is to lie to non-Muslims to hide their true purpose
of establishing “shari’ah law,” all Muslims are rendered dishonest and unable to
disavow any such interest. In a maddening catch-22, Muslims can only be believed
when they “confess” to espousing the beliefs that they are accused of by Islamo-
phobes. This discursive construction pervades all the dimensions of Islamophobia
described in this chapter.

3.1 Private Islamophobia

Private Islamophobia is the fear, suspicion, and violent targeting of Muslims by
individuals or private actors. This animus is most obviously carried forward by
nonstate actors’ use of religious or racial slurs, mass protests or rallies, and violence
against Muslim or perceived Muslim subjects.21 Examples of private Islamophobia

19
Id.
20
See generally, Cyra Akila Choudhury, Shari’ah Law as National Security Threat, 46 Akron
L. Rev. 49 (2013).
21
See Beydoun supra note 18 at 111.
 Introduction 9

include the murder of the three Muslim American students in Chapel Hill; vandal-
izing and burning of American mosques, which climaxed to 78 separate recorded
incidents in 2015;22 and the increasing incidence of attacks on conspicuous
Muslims, most notably Muslim women who wear the hijab, emboldened by the
campaign messaging and political rhetoric of Donald Trump. In addition, private
actors may use more subtle, less obvious methods to advance Islamophobic policies.
Subtler forms may be attempts to question Muslim loyalties, to repress speech
against Islamophobia or for causes associated with Arabs and Muslims, and discrim-
inatory hiring practices.

3.2 Structural Islamophobia

Structural Islamophobia is the fear and suspicion of Muslims on the part of public
institutions manifested through law and policy, through both official discourse and
action. These manifestations of state action are built upon the presumption that
Muslim identity is associated with terrorism or the threat of it.23 Structural Islamo-
phobia, while typically exacted and enforced by state actors, is sometimes carried
forward by private actors that closely collaborate with state agents, including think
tanks, corporations, and other networks.
The most obvious examples of structural Islamophobia are the creation of gov-
ernment institutions like the Department of Homeland Security and departments
within existing agencies. Laws, including the U.S. PATRIOT Act and the National
Security Exit and Entry Registration System (NSEERS), both enacted after the 9/11
terror attacks; executive actions, including Trump’s travel bans or President Barack
Obama’s “Countering Violent Extremism” program; and the declaration initiating
the War on Terror,24 by George W. Bush ten days after the 9/11 terror attacks
primarily targeting Muslims are also part of structural Islamophobia. These struc-
tures then endorse and disseminate problematic tropes about Islam and Muslims,
resulting in structural Islamophobia. In other words, the state is not only acting by
way of law or policy, presidential rhetoric, and national security programming, but is
communicating a specific and strategic set of messages to society through insti-
tutional action.

3.3 Dialectical/Co-constructed Islamophobia

This form of Islamophobia may be the most difficult to grasp for those outside the
halls of academia. Professor Beydoun argues that Islamophobia is also a systematic,
22
Talal Ansari, There Was a Huge Increase in Attacks on Mosques Last Year, Buzzfeed, June
20, 2016.
23
Beydoun, supra note 18, at 114.
24
Text of George Bush’s Speech, The Guardian, Sep. 21, 2001.
10 Khaled A. Beydoun and Cyra Akila Choudhury

fluid, and deeply politicized dialectic between the state and its polity, a dialectic
whereby the state shapes and reshapes, endorses, and entrenches popular views,
stereotypes, and attitudes about Islam and Muslim subjects inside and outside of
America’s borders.25 He argues that this is dialectical Islamophobia, the process by
which state action legitimizes prevailing misconceptions, misrepresentations, and
tropes widely held by private citizens and, during times of crisis and political
opportunism, emboldens bigotry and violence against Muslims and subjects per-
ceived to be Muslim. Professor Choudhury argues that the dialectic can be under-
stood differently as the tension between Islamophobia and liberal conceptions of
multiculturalism. The state and sections of the polity can be on both sides of this
tension. What Professor Beydoun describes as a dialectic,26 Professor Choudhury
would define as the co-construction of Islamophobia through an iterative process
actively resisted by those on the opposing side of the dialectic: Muslims, civil rights
activists, and those opposed to Islamophobia. The “Islamophobic state” and its polity
then respond in move and countermove against their opposition and responsive to
their supporters, to advance their policy objectives.
The state’s rubber-stamping of widely held stereotypes of Islam and Muslims in
society through surveillance, religious and racial profiling, and tightened immigra-
tion policies is one cornerstone of dialectical Islamophobia. This exchange, by
which the broader polity absorbs the state’s suspicion of Muslims by way of structur-
ally Islamophobic policies, is an ongoing co-construction that links state policy to
hate and violence unleashed by the polity. Another aspect of the dialectic is the way
in which private actors influence and direct public and state responses. This is most
clearly seen in the ways in which police and law enforcement agencies rely on
manifestly Islamophobic private corporations and individuals for training and infor-
mation. In recent times, Donald Trump has increasingly incorporated the views of
Islamophobes like Sebastian Gorka and Steve Bannon in state policy, even giving
them governmental roles. Thus, we see that the exchange between public and
private is mutually reinforcing. Indeed, the borders between private and public are
highly porous.

3.4 The Interplay among the Three Dimensions of Legal Islamophobia

Prevailing definitions of Islamophobia overlook the interplay between state policy
and the private views about Muslims and Islam. Like other forms of bigotry, the

25
Beydoun, supra note 18, at 119.
26
What Professor Beydoun describes as dialectical is not what is philosophically understood by
that term, which involves the interplay between thesis and antithesis to reveal a greater truth.
This truth does not always have to be positive, as Adorno argued in Negative Dialectics. Rather
Beydoun’s framework elaborates one side of a dialectic in which state and polity co-create
Islamophobia – feeding each other in its construction – in tension with those who resist it on
the opposing side of the dialectic.
 Introduction 11

shape of Islamophobia is contingent upon mass media representations, political

rhetoric, and messaging, but – most crucially – on government programming and
policy. The fluid expansion of structural Islamophobia programming, which is
reaching a second apex fifteen years after 9/11 with commercial vehicle enforcement
(CVE) policing, continuously communicates to the broader polity that Islam is to be
viewed with suspicion. This, in turn, keeps the view foremost in people’s minds that
Muslims and those who may be mistaken as Muslims are potential threats at best
and actual terrorists in our midst at worst. The result has been predictable: an
increase in violence against Muslims.
Structural Islamophobia conscripts the public through repeated overt or subtle
calls to action. For instance, authorities alert private citizens to be on guard
for Muslim radicals. They involve the public through paid informant roles or in
a private capacity, pushing them to participate in policing Muslims. In turn,
private actors often urge government action of a similar sort by calling the
police on innocent people, by asking zoning boards to deny permits to build
mosques, and by seeking the removal of public officials on the basis of their
religion. This dialectic links the structural and private cornerstones of Islamo-
phobia: the rapidly rising animus rooted in centuries’-old tropes and reified by
contemporary War on Terror and counterradicalization policy that drive state
policing of Muslim communities, and popular violence toward Muslims and
perceived Muslims.
Perhaps one of the most obvious examples of how these dimensions of
Islamophobia come together is that of the anti-shari’ah bills that have proliferated
at the state level from 2007 onwards. These bills were originally drafted as a model
law by private actors and organizations that have made it their focus to counter the
perceived “green peril.” The law was then marketed to legislators in various states,
who took up the model and proposed bills in their state legislatures. Some of these
bills, including constitutional amendments, have been enacted into law only to fall
to constitutional challenge. Nevertheless, the very fact that political representatives
have been willing to propose such blatantly unconstitutional laws plays an expressive
role in marginalizing Muslims and underwriting violence against an already vulner-
able community.
Because this book is about the construction of Islamophobia, we do not
explicate the other half of the dialectic, which is the resistance of these construc-
tions. The chapters, however, demonstrate that civil rights activists, lawyers,
academics, and ordinary Muslims have not simply allowed Islamophobia to take
root unchallenged. Rather, they have actively fought back, using well-established
forms of resistance, including law, education, outreach, and popular activism.
This dialectic has resulted in the Islamophobic state and polity shifting strategies,
which is most evident recently in the three travel bans issued by Donald Trump
and by the increasing use of religion-neutral language in the erstwhile anti-
shari’ah bills.
12 Khaled A. Beydoun and Cyra Akila Choudhury

4 the law’s islamophobia 27

As we have argued earlier in this chapter, Islamophobia is neither a transient nor a
temporary form of animus, because of its multifaceted nature. It is woven into the
fabric of American political and social life. Beyond the War on Terror, which
remains a fixture in American domestic and foreign policy, the roots of modern
Islamophobia run deep. Furthermore, politicians continue to find Islamophobia an
indispensable tool to rally support, and thus they keep it visible in the public
domain. The Trump administration is only the latest exemplar of this. Its use of
Islamophobia is simply more brazen than earlier administrations, and it has intro-
duced or raised this latent hate in new communities and mainstream spaces.
This book was conceived of during the year preceding the 2016 presidential
election. During that time, the use of populist rhetoric to roil hatred made the need
to address the rise of Islamophobia urgent. In the month preceding Trump’s
electoral victory and then in the first year of his administration, the repeated
vilification of Muslims and Islam and the alarming rise in hate crimes against
minorities made the book even more important. As we approach another election
year, this urgency has not diminished, but rather increased.
The project is driven by the commitment to not only link Islamophobia to its
antecedents like Orientalism, racism, and religious bigotry, but also to demonstrate
its rapid evolution after the inauguration of the War on Terror and to draw attention
to the ways in which Islamophobia in the present context of an increasingly right-
wing populist mobilization is different and perhaps even more dangerous.

5 the structure of the book

The book contains fourteen chapters, divided into four parts. Part I, “Race and
Citizenship,” includes four chapters based on or excerpted from articles written in
the aftermath of the September 11, 2001 attacks. These early works form the founda-
tional scholarship that gave rise to a growing literature on the treatment of Islam,
Arabs, and Muslims in law and society, which eventually coalesced into a body of
work on Islamophobia and the law. These chapters are critical to the understanding
of how Islamophobia has evolved. Leti Volpp’s excerpted article in Chapter 1, “The
Citizen and the Terrorist,” theorizes the violence done to Muslims after 9/11. She
argues that it is not simply the racialization of this community, but the convergence
of racial profiling, old Orientalist tropes, and the relationship among citizenship,
nation, and identity that explain the “ferocity with which multiple communities
have been interpellated as responsible for the events of September [11].”28

27
Chapters that are excerpted from earlier published works are so noted. The citations have been
formatted for consistency throughout the book and may differ from their original form.
28
Volpp, supra note 14.
Another Random Scribd Document
with Unrelated Content
several merchants, fitted out a caravel and put Gomez in command.
Gomez, if he did not stand as high as some men of his time, was a
navigator of experience. In 1519 he sailed as chief pilot with
Magellan, but incurred much odium by leaving him in the Straits
which now bear Magellan’s name, and returning to Spain. Peter
Martyr, who gives an account of the congress at Badajos, says: “It is
decreed that one Stephanus Gomez, himself a skilful navigator, shall
go another way, whereby, between Baccalaos and Florida, long since
our countries, he says he will find out a way to Cataia. Only one
ship, a caravel, is furnished for him,” and, the chronicler continues,
“he will have no other thing in charge than to search out whether
any passage to the great Chan from among the various windings
and vast compassing of this our ocean is to be found.” Of the voyage
out from Spain few particulars are now available, though the account
of the return was penned by Martyr subsequently to November 13,
1525, and probably before the close of the year. The voyage was,
upon the whole, a short one. Martyr, however, says that he returned
at the end of “ten months,” while Navarrete states that he sailed in
February. Galvano tells us that, having failed to obtain the command
of an expedition to the Moluccas, he went on the coast of the new
world in search of a passage to India, observing that “the Earl Don
Fernando de Andrada, and the doctor Beltram, and the merchant
Christopher de Serro, furnished a galleon for him, and he went from
Groine, in Gallicia, to the Island of Cuba, and to the Cape of Florida,
sailing by day because he knew not the land.” Galvano tells us,
likewise, that he passed the Bay of Angra and the river Enseada, and
so “went over to the other side, reaching Cape Razo in 46° N.” This
means that he sailed up from Florida past the coast of Maine. Martyr,
writing after the return of Gomez, indulges in a strain of ridicule, and
says: “He, neither finding the Straight, nor Cataia, which he
promised, returned back in ten months after his departure;” and
continues: “I always thought and supposed this worthy man’s
fancies to be vain and frivolous. Yet he wanted not for suffrages and
voices in his favor and defense.” Still, Martyr admits that “he found
pleasant and profitable countries agreeable with our parallels and
degrees of the pole.”
 The results of the voyage along the coast from Florida to
Newfoundland are indicated on the Map of Ribeiro, 1529, which
represents a new exploration, as nothing seems to have been
borrowed from either the voyage of Verrazano or from the voyages
made by the Portuguese, with the exception that Ribeiro used old
Portuguese maps of Newfoundland, which was the case with
Verrazano. We must, however, confine our observations to things
that relate to this immediate region, and notice what the
accompanying maps so fully exhibit, the difference of the delineation
of Sandy Hook and Long Island. On the Ribeiro Map Sandy Hook
appears as “Cabo de Arenas,” the Sandy Cape, exaggerated in size,
while Long Island is hardly distinguishable, as the coast line runs too
close to the north. It is indicated by the section of the coast between
two rivers, “Montana Vue,” evidently one of the hills of Long Island
that the navigator now views from the sea. On the Verrazano Map,
the region of Sandy Hook is “Lamuetto” and “Lungavilla,” while Long
Island is indicated as a part of the mainland, bearing the names of
“Cabo de Olimpo” and “Angolesme,” the bay of “San Germano” lying
between. The delineations of Verrazano exhibit his short stay and
hasty departure, while the survey of Gomez must have occupied
more time, at least around Sandy Hook. That this map resulted from
the voyage of Gomez is evident from the legend, which calls the land
“Tierra de Estevan Gomez;” (the country of Stephen Gomez) while
eastward, where the coast of Maine is delineated, is the “Arcipelago”
of Gomez. On this Map of Ribeiro the lower Bay of New York is
indicated by “E. de S. Xpoal,” with several Islands. A river appears
between this bay, given in later documents as Bay of “St.
Chrispstabel,” and Long Island, but the name of the river is not
given. “B. de S. Antonio,” however, is given which indicates the
upper bay or harbor, and subsequently we shall see the river itself
indicated as the river “San Antonio,” while the place of Sandy Hook
in the old cartography will be fully established and identified with
Cape de Arenas. Ribeiro evidently had pretty full notes of the
calculations and observations of Gomez.
 FRA. DRAKE.

As the reverential old navigators were often in the habit of

marking their progress in connection with prominent days in the
Calendar, it is reasonable to suppose that the Hudson was
discovered by Gomez on the festival of St. Anthony, which falls on
January 17. Navarrete indeed says that he left Spain in February, but
the accounts are more or less confusing. If Martyr, who is more
particular, is correct, and Gomez was absent “ten months,” he must
have sailed early in December, which would have brought him to our
coast on the festival of the celebrated Theban Father. At this time
the navigator would have seen the country at its worst. Evidently he
made no extended exploration of the river, as in January it is often
loaded with ice and snow.
Gomez was laughed at by the courtiers, and had no disposition to
return to the American coast. The legend on the Map of Ribeiro
proclaiming his discovery, that is, exploration of the coast, declared
that here were to be found “many trees and fruits similar to those in
Spain,” but Martyr contemptuously exclaims, “What need have we of
these things that are common to all the people of Europe? To the
South! to the South!” he ejaculates, “for the great and exceeding
riches of the Equinoxial,” adding, “They that seek riches must not go
to the cold and frozen North.” Gems, spices, and gold were the
things coveted by Spain, and our temperate region, with its
blustering winters, did not attract natures accustomed to soft
Andalusian air.
After the voyage of Gomez, which, failing to find a route to the
Indies, excited ridicule, there is nothing of special interest to
emphasize in this connection until 1537. In the meanwhile, the
English were active, and in 1527 two ships, commanded by Captain
John Rut, were in American waters. It has been claimed that he
sailed the entire coast, often sending men on land “to search the
state of these unknown regions,” and it has been affirmed that this
is “the first occasion of which we are distinctly informed that
Englishmen landed on the coast.” Also that, “after Cabot, this was
the second English expedition which sailed along the entire east
coast of the United States, as far as South Carolina.” Granting,
however, that the expedition of Rut actually extended down the
American coast, there is no proof that he gave any attention to the
locality of the Hudson.
 A SECTION OF THE
MAP OF ALONZO CHAVES.

We turn now to the account of our particular locality, as given by

Oviedo in 1537, who wrote an account of the coast based largely
upon the Map of Alonzo Chaves. It appears that, in 1536, Charles V.
ordered that the official charts should “be examined and corrected
by experienced men, appointed for that purpose.” Acting under their
instructions, Alonzo Chaves drew up a chart, embodying the
information that he had been able to collect from maps and
narratives. It is evident that he had notes of the voyage of Gomez,
and that he used the Ribeiro Map, but he had no information about
the voyage of Verrazano or that of Cartier in 1534. His delineation of
the coast began in the Bay of Mexico, and extended to
Newfoundland. Oviedo, in his “History of the Indies,” used this map,
and describes the coast by its aid. The Map of Chaves does not
appear to be accessible, but its American features have been
reconstructed from the descriptions of Oviedo, and this portion of
the Map is given herewith, the latitudes and distances being exactly
preserved. From the Cape of Florida, Oviedo moves northward in his
descriptions, which are distinctly recognizable. “Cabo de Sanct
Johan” stands at the mouth of the Chesapeake, and from this place
“Cabo de los Arenas” is thirty leagues to the north-northeast. The
latter cape is 38° 20′ N. From “Arenas” the coast runs thirty leagues
to “Cabo de Santiago,” which is 39° 20′ N. On this map Sandy Hook
appears as Cape Santiago, but generally the name of “Arenas,” the
Sandy Cape, is affixed to the Hook[7]. Oviedo, on reaching the end
of Sandy Hook, proceeds to give an unmistakable delineation of the
Bay and Harbor of New York, and of the river which is now known as
the Hudson. “Thence,” continues Oviedo, with his eye on the Map of
Chaves, “the coast turns southwest twenty leagues to the Bay of
Sanct Christobal, which is in 39°, passes said bay, and goes thirty
leagues to Rio de Sanct Antonio, north and south with the bottom of
this bay; and the ‘Rio de Sanct Antonio’ is in 41° N.” Dr. Kohl says
that “it is impossible to give a more accurate description of the
Hudson River,” but this is not quite true. It was an excellent
description for that period, considering the material at hand; yet it
must be remembered that all the distances are given as general
estimates on the decimal system. Besides, the Map of Chaves, like
all the maps, was drawn on a small scale, and Sandy Hook and the
Lower Bay are both exaggerated, as on the Map of Ribeiro, which
will be seen by a comparison of the two maps, placed side by side to
facilitate investigation. Both Ribeiro and Chaves had erroneous
measurements of distances, and made the Lower Bay quite a large
gulf, while the latitude of “Rio Sanct Antonio” is placed one degree
too high. Ribeiro, however, gave the Hook its right name,
“Arenas.”[8] The size of the Hook is exaggerated on the Maijolla Map,
1527, though not on the Verrazano, 1529. These things show free-
hand drawing on the part of the mapmakers, and defective rule-of-
thumb measurements by the navigator, who probably viewed the
waters behind the Hook when veiled in mist, failing to test his own
estimates.
 Oviedo says that “from the Rio de Sanct Antonio the coast runs
northeast one-fourth east forty leagues to a point (punta), that on
the western side it has a river called the Buena Madre, and on the
eastern part, in front of (de lante) the point, is the Bay of Sanct
Johan Baptista, which point (punta) is 41° 30′ N.”; or, rather,
correcting the error of one degree, in 40° 30′ N. This point is
Montauk Point, Long Island being taken as a part of the main. The
Thames River in Connecticut answers to the River of the Good
Mother, and the Bay of John Baptist is evidently the Narragansett.
Oviedo then goes on to the region of Cape Cod, varying from the
general usage, and calling it “Arrecifes,” or the Reef Cape, instead of
“Cabe de Baxos,” which signifies substantially the same thing. Under
the circumstances, the description of Long Island is remarkably
exact, as its shore trends northward almost exactly half a degree in
running to Montauk Point. What, therefore, lies on either side of the
River San Antonio fixes beyond question the locality of the Hudson,
and proves that it was clearly known from the time of Gomez to
1537.
The next navigator whose work touched our part of the coast was
Jehan or Jean Allefonsce, who, in 1542, came to Canada as pilot of
Roberval, and gained considerable knowledge of the North Atlantic
shores. This hardy sailor was a native of Saintonge, a village of
Cognac, France. After following the sea for a period of more than
forty years, and escaping many dangers, he finally received a mortal
wound while engaged in a naval battle in the harbor of Rochelle.
Melin Saint-Gelais wrote a sonnet in his honor during the year 1559.
It can hardly be doubted that Allefonsce himself ran down the coast
in one of the ships of Roberval, probably when returning to France.
With the aid of Paulin Secalart he wrote a cosmographical
description, which included Canada and the West Indies, with the
American coast. Very recognizable descriptions are given as far down
as Cape Cod and the islands to the southward. The manuscript also
possesses interest in connection with the region of the Hudson,
though farther south the description becomes still more available.
 Allefonsce after disposing of the region of New England, turns
southward, and says: “From the Norombega River,” that is, the
Penobscot, “the coast runs west-southwest about two hundred and
fifty leagues to a large bay (anse) running inland about twenty
leagues, and about twenty-nine leagues wide. In this bay there are
four islands close together. The entrance to the bay is by 38° N., and
the said islands lie in 39° 30′ N. The source of this bay has not been
explored, and I do not know whether it extends further on.... The
whole coast is thickly populated, but I had no intercourse with
them.” Continuing, he says: “From this bay the coast runs west-
northwest about forty-six leagues. Here you come upon a great
fresh-water river, and at its entrance is a sand island.” What is more,
he adds: “Said island is 39° 49′ N.”
From the description of Allefonsce, it is evident that the “great
fresh-water river” is the Hudson, described five years before by
Oviedo, out of the Map of Chaves, as the River of St. Anthony, while
the “island of sand” was Sandy Hook.[9]
Turning from the manuscript of Allefonsce to the printed
cosmography, we discover that the latter is only an abridgement, it
being simply said that after leaving Norombega, the coast turns to
the south-southeast to a cape which is high land (Cape Cod), and
has a great island and three or four small isles. New York and the
entire coast south have no mention. The manuscript, however,
suffices for our purpose and proves that the coast was well known.
It has been already stated that it would be impossible to say when
the first Englishman visited this region; yet in the year 1567-8,
evidence goes to prove that one David Ingram, an Englishman, set
ashore with a number of companions in the Bay of Mexico,
journeyed on foot across the country to the river St. John, New
Brunswick, and sailed thence for France. Possibly he was half crazed
by his sufferings, yet there can be little doubt that he crossed the
continent and passed through the State of New York, traveling on
the Indian paths and crossing many broad rivers. If the story is true,
Ingram is the first Englishman known to have visited these parts.
 In April, 1583, Captain Carline wrote out propositions for a voyage
“to the latitude of fortie degrees or thereabouts, of that hithermost
part of America,” and, in 1583, Sir Humphrey Gilbert had this region
under consideration, Hakluyt observing on the margin of his “Divers
Voyages” that this was “the Countrey of Sir H. G. Uoyage.” Hays says
in his account of the region, that “God hath reserved the same to be
reduced unto Christian civility by the English nation” and, also that
“God would raise him up an instrument to effect the same.” All this is
very interesting in connection with English claims and enterprise. In
the same year the French were active on the coast, and one Stephen
Bellinger, of Rouen, sailed to Cape Breton, and thence coasted
southwesterly six hundred miles “and had trafique with the people in
tenne or twelve places.” Thus the French were moving from both the
north and the south towards this central region; but we cannot say
how far south Bellinger actually came, as there is nothing to indicate
his mode of computation. It is not improbable that he knew and
profited by the rich fur-trade of the Hudson.
In 1598 and there about, we find it asserted that the Dutch were
upon the ground, for, in the year 1644, the Committee of the Dutch
West India Company, known as the General Board of Accounts, to
whom numerous documents and papers have been intrusted, made
a lengthy report, which they begin as follows: “New Netherland,
situated in America, between English Virginia and New England,
extending from the South [Delaware] river, lying in 34½ degrees to
Cape Malabat, in the latitude of 41½ degrees, was first frequented
by the inhabitants of this country in the year 1598, and especially by
those of the Greenland Company, but without making any fixed
settlements, only as a shelter in winter. For which they built on the
North [Hudson] and the South [Delaware] rivers there two little forts
against the attacks of the Indians.” Mr. Brodhead says that the
statement “needs confirmation.” Still it is somewhat easy to
understand why a statement of this kind coming from such a body
should require confirmation; but the Committee had no reason for
misstating the facts, and ought to have been accurately informed.
Yet if confirmation is insisted upon, we are prepared to give it, such
as it is, from an English and, in fact, an unexpected source. Our
authority is no less a personage than Governor Bradford, of
Plymouth Colony, whose office and inclinations led him to challenge
all unfounded claims that might be put forth by the Dutch.
Nevertheless, writing to Sir Ferdinando Gorges, the father of New
England colonization, who likewise was hostile to the pretensions of
the Dutch, Bradford says, under date of June 15, 1627, that the
Dutch on the Hudson “have used trading there this six-or-seven-and-
twenty years, but have begun to plant of later time, and now have
reduced their trade to some order.” Bradford lived in Holland in 1608,
and had abundant opportunities for knowing everything relating to
Dutch enterprise. It is perfectly well known that the Plymouth
Colonists of 1620 intended to settle at the Hudson, though
circumstances directed them to the spot pointed out by Dermer in
1619, when in the service of Gorges. Thus, about seventeen years
before the Committee of 1644 reported, Governor Bradford, an
unwilling, but every way competent and candid witness, carried back
the Dutch occupancy, under the Greenland Company, to the year
1600. Besides, on the English map of the voyage of Linschoten,
1598, there is a dotted trail from the latitude of the Hudson, 40° N.
to the St. Lawrence, showing that the route was one known and
traveled at that time. It is evident, from a variety of considerations,
that both the Dutch and French resorted to the Hudson at this
period to engage in the trade. Linschoten was one of the best
informed of Dutch writers, and probably understood the significance
of the representation upon his map. The probability is that this route
was known a long time before, and that it may be indicated by
Cartier, who, when in Canada, 1534, was told of a route by the way
of the river Richelieu, to a country a month’s distance southward,
supposed to produce cinnamon and cloves, which Cartier thought
the route to Florida. Champlain, writing in Canada, says that, in the
year previous, certain French who lived on the Hudson were taken
prisoners when out on an expedition against the northern Indians,
and were liberated, on the ground that they were friends of the
French in Canada. This agrees with the report of the Labadists, who
taught that a French child, Jean Vigné, was born here in 1614.
Evidently the French had been on the ground in force for some
years, and were able to make expeditions against the savages. Very
likely the French were here quite as early as the Hollanders.
There seems to be, however, another curious piece of
confirmation, which comes from the writings of the celebrated
Father Isaac Jogues, who was in New Amsterdam during the year
1646. In a letter written on August 3d of that year, he says that the
Dutch were here, “about fifty years” before, while they began to
settle permanently only about “twenty years” since. The latter
statement is sufficiently correct, as 1623 was the year when a
permanent colony was established by the Dutch. The former
statement carries us back to the date of the “Greenland Company.”
So far as present evidence goes, it is perhaps unnecessary to say
anything more in vindication of the statement of the Dutch
Committee of 1644, claiming that representatives of the Greenland
Company wintered here in 1598. Nevertheless, as a matter of
interest, and to show how well the Hudson was known at this time
by both Dutch and English, we may quote from the English
translation of the Dutch narrative of Linschoten, which clearly
describes the coast. He says: “There is a countrey under 44 degrees
and a halfe, called Baccalaos.” This country of Baccalaos reached
nine hundred miles, that is, from the Cape de Baccalaos [Cape Race]
to Florida.
The distances are given approximately, of course, by Linschoten,
being on the decimal system, but they distinctly mark the principal
divisions of the coast and fix the fact beyond question that the
Hudson was perfectly well known.
On the general subject it may be said, that the record of the
“Greenland Company” is not satisfactory, yet the word “Greenland”
at that time had a very general use, and all that the Committee of
Accounts may have meant by the phrase was, that a company or
association engaged in the fur and fish trade, which for centuries,
even, had been prosecuted at the north, had sent some ships to this
region in 1598. There is certainly nothing unreasonable in this
supposition, the coast being so well known. Various adventurers of
whom we know nothing doubtless came and went unobserved,
being in no haste to publish the source from which they derived such
a profitable trade in peltries. The Committee of Accounts either
falsified deliberately or followed some old tradition. Why may not a
tradition be true?
We turn next to examine a map recently brought to notice and
which is of unique value. Formerly the map usually pointed out as
the oldest seventeenth century map of this region was the Dutch
“Figurative” Map, which was found by Mr. Brodhead in the Dutch
archives. We have now, however, an earlier map of 1610, which was
prepared from English data for James I., a copy finding its way to
Philip III., by Velasco, March 22, 1611. Sandy Hook, though without
name, is delineated about as it appears in later maps, while Long
Island is shown as a part of the main, with no indication of the
Sound, though Cape Cod and the neighboring islands are well
delineated, and Verrazano’s Island of “Luisa” appears as “Cla[u]dia,”
the mother of Francis I. Clearly at this time neither Block nor any
other Dutch navigator had passed through Hell Gate into Long Island
Sound.
There is nothing whatever in this map relating to explorations by
any nation later than 1607. Jamestown appears on the Virginia
portion, and Sagadehoc in Maine. It was simply a copy of a map
made soon after the voyage to New England and Virginia in 1607.
The compiler had not heard of Hudson’s voyage, as that navigator
did not reach England until November 7, 1609. If he had received
any information from Hudson, he would have shown the river
terminating in a shallow, innavigable brook, whereas the river is
indicated, in accordance with Captain John Smith’s idea, as a strait,
leading to a large body of water. Further, the map contradicts
Hudson, who represents the Hoboken side of the river as
“Manhatta,” while this map puts the name on both sides,
“Manahata,” on the west and “Manahatin” on the east. It is not
unlikely that Hudson had with him a copy of the map, for his
guidance on the voyage in the Half-Moon.
 SIR WALTER RALEIGH.

Though this map bears a date subsequent to Hudson’s voyage,

the contents prove that the original could not have been drawn later
than 1608. It was evidently one of the various maps of which Smith
spoke and which he underrated. Its substance indicates that it was
drawn from a source independent of the Dutch and French, showing
that the English knew of the Bay of New York and its relation to
Sandy Hook, and that they supposed the great river delineated was
a broad stream which, in someway, communicated with the Pacific.
On the original map of which Velasco’s example was a copy, the land
west of the river was colored blue, and the legend says that it is
described by information drawn from the Indians. What we need
now is the original map, which may still exist in some obscure
collection in England or Holland, and quite as likely in the archives of
Spain, sent thither by jealous Spanish spies, who lingered, like
Velasco, at the court of James I., to learn what they could with
respect to English enterprise in America. At all events we have in this
English map the first seventeenth century delineation of this region,
and one showing that the English knew the form and general
character of the country which the crown conveyed to the colonists
of North and South Virginia in 1606. So far as now known, it was
clearly the English who first became acquainted with the name that
the Aborigines applied to the island upon which our great
metropolitan city stands. Whether or not this was an aboriginal word
or a corruption of a Castilian term future investigators may decide.
The unexpected finding of this old English map in the Spanish
archives revives our hopes relating to the discovery of new sources
of information concerning early voyages to this coast. English
enterprise and adventure on the Virginia coast, extending from
Raleigh’s expedition, 1584, to Gosnold’s fatal quest, 1603, must have
brought Englishmen into the Bay of New York, unless miracle was
balanced against curiosity and chance. There are archives yet to be
opened that may give the origin of the delineations of this region
found in the remarkable map from Samancas, and we need to be
cautious in making claims even for the priority of the Dutch in 1598.
The period under consideration was a period of reconnoissance,
one that offered some romantic incident, but more of
disappointment and mortification. Here was a site for one of the
noblest cities in the world, but the voyager was blind. The river
offered no route to the gorgeous Indies, and Verrazano had little
inclination to test its swift tide. Gomez, in the short January days of
1525, had no desire to ascend, for when his ship met the drift ice
tossing on the cold, swirling stream, he thought of Anthony in his
desolate retreat on the Red Sea, put the river under his charge, and
sailed away in search of happier shores. Sailors of other
nationalities, doubtless, ascended the river; but, finding it simply a
river, they took what peltries they could get, and, like Gomez, turned
the whole region over to the care of the solitary Saint, who for
nearly a century stood connected with its neglect. Much remained to
be done before steps could be taken with regard to colonization. The
initial work, however, was inaugurated by the sturdy Englishman,
Henry Hudson, and the proud Spanish caravel disappears, while the
curtain rises upon the memorable voyage of the quaint Dutch fly-
boat, the Half-Moon.

FOOTNOTES
[2] Letter addressed to the writer in 1890.
[3] The vignette on proceeding page is a faithful representation
of the Florentine portrait.
[4] The usual course was to sail southward and reach Florida
coasting north, or to sail to Newfoundland and coast southward.
It required especial boldness to take the direct course, and, in
1562, when Ribault followed this course, he was proud of the
achievement. The fact that Verrazano sailed the direct course at
that time proves the authenticity of his voyage, as a forger would
not have invented the story.
[5] On the Map of Verrazano, to which attention will be
directed, this triangular island is delineated. The voyager
approaching the island from the west comes to a point of the
triangle where he can look away in the easterly direction, and at
a glance take in two sides; while on reaching the eastern limit the
third side plainly appears. In sailing past Block Island, as
Verrazano did, from west to east, the navigator could not fail to
discover its triangular shape. Indeed it is so marked that one is
struck by the fact.
[6] The story of this map is curious. The American contents
were first given to the public by the writer in the “Magazine of
American History,” and afterward reprinted in “Verrazano the
Explorer.”
 [7] In “Cabo de Arenas,” the coast names taken from a large
collection of maps are arranged in parallel columns, illustrating
three main divisions of the coast, showing that Cabo de Baxos
was the name applied to Cape Cod, and Cabo de Arenas to Sandy
Hook. Capo Cod in the early times was not a sandy cape, but a
beautiful and well-wooded cape. Sandy Hook ever since it was
known has borne its present character.
[8] Those who have fancied that Cape Arenas was Cape Cod,
and that the bay behind it was Massachusetts Bay, have the same
difficulty as regards dimensions. Students of American
cartography understand perfectly well that latitudes in the old
maps were often more than two degrees out of the way, the
instruments of that period being so defective.
[9] To convince himself of this fact the reader may compare the
reconstructed Map of Chaves with the coast surveys, when the
main difference will be found to consist in the exaggeration of
Sandy Hook. The “Narrative and Critical History of America,”
dealing with this point, suppresses all allusion to the fact that
Kohl recognizes the cape on the Map of Chaves with the names
“Santiago” and “Arenas” as Sandy Hook, which follows, as the
river inside of the Hook he identifies with the Hudson. Dr. Kohl,
though generally very acute, failed to see that Oviedo’s
description of the Map of Chaves was, substantially, the
description of Ribeiro, and that in identifying, as he chanced to,
the “Arenas” of Ribeiro with Cape Cod, he stultified his own
reasoning. Nor did he consider this, that if the great Cape
“Arenas” was intended for Cape Cod, there is no representation
whatever of Sandy Hook and the Hudson in the old cartography
and that all the voyages to this region geographically went for
nothing. Credat Judaeus Appellus! This exaggeration of Sandy
Hook is conceded, yet the inlets along the New Jersey shore may
have been viewed as connected by Gomez; and indeed, so great
have been the changes along the coast that no one can well deny
that they were connected in 1525, and formed a long bay running
down behind Sandy Hook. It will prove more historic to follow the
writer, who says, “that the coast of New York and the neighboring
district were known to Europeans almost a century before Hudson
ascended the ‘Great River of the North,’ and that this knowledge
is proved by various maps made in the course of the sixteenth
century. Nearly all of them place the mouth of a river between
the fortieth and forty-first degrees of latitude, or what should be
this latitude, but which imperfect instruments have placed farther
north.”—Nar. and Crit. His. of Amer., 4: 432.
 EARLY AMERICAN LITERATURE.
Seventy-odd years ago the Rev. Sydney Smith wrote in the
Edinburg Review as follows: “Literature, the Americans have none—
no native literature, we mean. It is all imported. They had a Franklin,
indeed, and may afford to live for half a century on his fame. There
is, or was, a Mr. Dwight, who wrote some poems, and his baptismal
name was Timothy. There is also a small account of Virginia, by
Jefferson, an epic by Joel Barlow, and some pieces of pleasantry by
Mr. Irving. But why should the Americans write books, when a six
weeks’ passage brings them, in their own tongue, our sense, science
and genius in bales and hogsheads?”
Times have changed since Mr. Smith wrote this somewhat
sarcastic summary of our native literature; for, while it is true that
we still import British “sense, science, and genius in bales and
hogsheads,” it is done now on principles of reciprocity, and we return
quite as good and perhaps nearly as much as we receive.
Americans do not instance Mr. Dwight, whose “baptismal name
was Timothy,” or Mr. Barlow, the author of the epic so sneeringly
referred to, as the chiefs of American poesy; yet we need not blush
for either of them; for the first was a distinguished scholar the
President of Yale College, and the author of the hymn so dear to
many pious hearts:

“I love thy kingdom, Lord!

The house of Thine abode;
The church our blest Redeemer saved
With His own precious blood.”

The other, Mr. Barlow, was a well-known man of letters and

politician in his day, author of the “Columbiad,” the epic referred to
by Mr. Smith, and minister plenipotentiary of the United States to the
coast of France at a critical period of our history. As to the
“Columbiad,” it has been pronounced by competent critics to be
equal in merit to Addison’s “Campaign,” and surely it is no disgrace
to have equalled Addison.
It was the fashion in those days for Englishmen to sneer at
Americans; and so we find in another review, written by the same
gentleman in 1820, this language: “During the thirty or forty years of
their independence, they have done absolutely nothing for the
sciences, for the arts, for literature, or even for the statesmanlike
studies of politics or political economy.... In the four quarters of the
globe who reads an American book? or looks at an American picture
or statue? What does the world yet owe to American physicians or
surgeons? What new substances have their chemists discovered? or
what old ones have they analyzed? What new constellations have
been discovered by the telescopes of Americans? What have they
done in mathematics? Who drinks out of American glasses? or eats
from American plates? or wears American coats or gowns? or sleeps
in American blankets?” In the very same year that this array of
rather insolent queries was propounded by Sydney Smith, the genial
Washington Irving, in the advertisement to the first English edition
of his Sketch Book, remarks: “The author is aware of the austerity
with which the writings of his countrymen have been treated by
British critics.” We have not a particle of doubt as to the “austerity”
in question. The salvos of Old Ironsides and the roar of Jackson’s
guns at New Orleans, were unpleasant facts not yet forgotten by
Englishmen.
But Sydney Smith was not quite fair towards our countrymen. It
was “during the thirty or forty years of their independence” referred
to that Fulton’s steamboat revolutionized navigation, that
Rittenhouse developed a mathematical skill second only to that of
Newton; that West delighted even royalty itself with the creations of
his pencil; while in “the statesmanlike studies of politics or political
economy,” it was during this very period that Jefferson, Hamilton,
Madison, and their coadjutors did more to develop the true
principles of government and politics than had ever been done
before in the history of the world. True, we had not much to boast
of, but it would have been only just to give us credit for what we
were worth. Moreover, in a small way, but to the extent it was
possible under the circumstances, the English colonists in America
had cultivated letters from the beginning. In 1685, Cotton Mather
wrote his Memorable Providences; in 1732, Franklin began to issue
his Poor Richard’s Almanac; in 1749, Jonathan Edwards published his
Life of David Brainerd, and in 1754, his famous treatise on The
Freedom of the Will and Moral Agency. Besides these, which perhaps
stand out most conspicuously, there were many minor works of
more or less excellence, over most of which the iniquity of oblivion,
to use the fine phrase of Sir Thomas Browne, hath scattered her
poppy.
The moment that the Edinburg Review was thus dealing our
fathers these heavy blows seemed to be the real starting point in
our career of literary greatness. William Cullen Bryant, Washington
Irving, James K. Paulding, Richard H. Dana, James Fenimore Cooper,
Mrs. Sigourney and a host of others were giving direction to that
stream of literature that has since flowed broad and free over our
land, imparting life and vigor and beauty to our society and
institutions. It is, however, anterior to the year 1820, the thirty or
forty years of our national independence, during which Mr. Smith
says we have done “absolutely nothing” in literature, science or art,
to which we must more particularly advert. The literary product of
those years was scanty enough, it is true. The student of this period
will not find much, and not all of that of the first order, to reward his
labor—not much, at least, as compared with other nations at the
same time. But may there not have been some sufficient reason for
this, outside of any downright intellectual deficiencies on the part of
our fathers? Let us for a moment consider the condition of things at
that time in this country.
In the first place, at the time referred to, the citizens of the United
States were in a daily struggle with the material difficulties of their
situation. The country was new. The region west and north of the
Ohio and Mississippi was yet an almost unbroken wilderness, while
the country east and south of those rivers was but sparsely
populated. At the same time the tide of immigration was sweeping
into the country, and with it all the rush and turmoil incident to life in
a new country was going on. Forests were to be cut down; farms
were to be cleared up; houses were to be built; roads were to be
made; bridges were to be thrown across the rivers; while a
livelihood was to be compelled from the forests, the streams, and
the fields. The conditions of a new country are not favorable to the
cultivation of the arts, of sciences, or of literature. Why do not
Englishmen twit the people of Australia because during the past forty
or fifty years in which they have prospered so greatly in material
things, they have not produced a Macaulay, a Tennyson, a
Gladstone, a Tyndall, or a Huxley? It would be just as fair to do it.
Not only was there this hand to hand contest with their physical
environment, but the political conditions were also unfavorable to
any general dalliance with the Muses. Only in times of tranquility and
ease is it possible.

“To sport with Amaryllis in the shade,

Or with the tangles of Neaera’s hair.”

The country at the period referred to, had just emerged from a
long and exhausting war. Society was almost broken up; the arts of
peace were well nigh forgotten; the finances were in almost
hopeless confusion; the form of government was unsettled, and
scarcely yet determined upon. The first thing to do was to evolve
some system and some security out of this chaos. Politics alone
occupied the moments of leisure. When, finally, authority had
crystallized into definite government the people were not allowed to
be at rest. Murderous wars with the Indians on the frontiers; the
machinations of French emissaries; British oppression of American
commerce, and at length another long and bloody war with England,
harassed the minds of the people, and prevented them from giving
themselves up more generally to the kindly and refining influences of
literature and art. When we consider all the circumstances in the
case, there seems a degree of severity in Sydney Smith’s sneers and
taunts.
But though circumstances were thus unfavorable to the cultivation
of letters, yet something was done in this direction nevertheless.
Smith refers flippantly enough to Dwight, Jefferson, Barlow and
Irving. But besides these there were others, not brilliant luminaries
perhaps, yet stars shining in the darkness according to their orders
and degrees. We do not design here to enter upon any discussion of
their respective merits, but we may mention as a writer of that
period no less a character than George Washington, whose
greatness in other spheres of life has entirely eclipsed any fame of
which he may be worthy as an author, yet whose Farewell Address
alone would entitle him to a place among the most accurate writers
of English. Among others we may name John Adams, whose pen
was scarcely less eloquent than his tongue; Francis Hopkinson,
author of The Battle of the Kegs and many other pieces, of which it
has been said, that “while they are fully equal to any of Swift’s
writings for wit, they have nothing at all in them of Swift’s vulgarity;”
Dr. Benjamin Rush, a distinguished writer on medical and social
topics; John Trumbull, the author of McFingal and The Progress of
Dullness; James Madison, afterward President of the United States,
one of the ablest writers in The Federalist; Philip Freneau, a poet of
the Revolution and the period immediately following; Alexander
Hamilton, a contributor to The Federalist, and one of the clearest of
political writers; Joseph Dennie, the author of The Lay Preacher, and
editor of The Portfolio; Joseph Hopkinson, author of Hail, Columbia;
Charles Brockden Brown, author of Wieland, Arthur Mervyn, and
other works, and who was perhaps the first American who wholly
devoted his life to literary pursuits; William Wirt, author of the British
Spy, the Life of Patrick Henry, and other works; and Lyman Beecher,
the author of a work on Political Atheism, anti several volumes of
sermons and public addresses. This list might easily be extended,
but its length as it now stands, as well as the merits of the writers
adduced, is sufficient to contradict effectually the statement that
America had “no native literature,” and that during the thirty or forty
years immediately subsequent to the Revolution she had done
“absolutely nothing” for polite letters. Much of this early literature
still remains, and is read; many of these authors are still familiar to
this generation, and it is generally admitted that the writer whose
fame survives a century is assured of a literary immortality. Sydney
Smith was an acute man, a learned man, a great wit, a ready and
elegant writer, a trenchant critic, but the names of some of these
humble Americans whom he did not deign to mention, or mentioned
only to scoff, bid fair to stand as long in the annals of literature as
his own.
On the eastern slope of the Andes are a thousand springs from
which the slender rills, half hidden at times by the grass, scarcely at
any time seen or heard, trickle down the side of the immense
mountain range, here and there falling into each other and swelling
in volume as they flow, until at length is formed the mighty Amazon,
that drains the plateaus and valleys of half a continent. So the
beginnings of our literature, like the beginnings of every literature,
are small, indistinct, half hidden; but as they proceed, these little rills
of thought and expression grow and expand, until the mighty stream
is formed that irrigates the whole world of intellectual activity.
This stream, as we have said, first began to assume definite form
and direction about the time that Sydney Smith was uttering his
tirades against the genius and achievements of our countrymen. In
1817, appeared in the North American Review a remarkable poem
called “Thanatopsis.” The author was a young man named William
Cullen Bryant, only twenty-three years of age; yet the poem had
been written four years before. The annals of literature do not
furnish another example of such excellence at so early an age. The
poem yet stands as one of the most exquisite in the language. A
recent critic has characterized it as “lofty in conception, beautiful in
execution, full of chaste language and delicate and striking imagery,
and, above all, pervaded by a noble and cheerful religious
philosophy.” This first effort on the part of Bryant was succeeded by
a long career of eminence in the field of literature. In 1818 appeared
a volume of miscellanies called “The Sketch Book,” by Washington
Irving, a young man who had already acquired some slight
reputation as a dabbler in literature of a trifling or humorous kind.
The Sketch Book was almost immediately honored by republication
in England. This initial volume was followed by a second series of
miscellanies called “Bracebridge Hall,” which was published in
London in 1822. In the preliminary chapter the author pleasantly
adverts to the general feeling with which American authorship was
regarded in England. “It has been a matter of marvel to my
European readers,” says he, “that a man from the wilds of America
should express himself in tolerable English. I was looked upon as
something new and strange in literature; a kind of demi-savage, with
a feather in his hand instead of on his head; and there was a
curiosity to hear what such a being had to say about civilized
society.” In the same year with Irving’s Sketch Book appeared
Drake’s Culprit Fay, a poem that has not been surpassed in its kind
since Milton’s Comus. In 1821 Percival issued his first volume of
poems, Dana his Idle Man, and Cooper, his Precaution. His last
named volume was at once followed by a long list of works including
such famous titles as The Spy, The Last of the Mohicans, The
Pathfinder, and The Deerslayer. It marked the advent of our most
distinguished novelist—a man who has been styled the Walter Scott
of America. He justly stands in the same rank with the mighty
Wizard of the North, and has no other equal. Thus the stream of
American literature rolled on its course, and was swelled as it flowed
by the contributions of Everett, Prescott, Bancroft, Emerson,
Hawthorne, Poe, Willis, Holmes, Whittier, Lowell, and a host of
others, whose names the world will not willingly let die.
America has not yet produced a Shakespere or a Milton; but it
must be remembered that England has produced but one, each of
these in a period of a thousand years. Anywhere below these two
great names, American literature of the last seventy years is able to
parallel the best work that has been produced by our kinsmen on
the other side of the Atlantic. In wealth and elegance of diction, in
depth of thought or feeling, in brightness and grace of expression, in
any of the thousand forms and flights in which genius seeks to
express himself, the current literature of America stands on a level
with the current literature of England; and Sydney Smith’s sneers,
which must have touched our fathers to the quick, find no response
now except the smile of contempt which alone they ever deserved.
T. J. Chapman.
 THE OHIO SOCIETY, AND OHIO IN
NEW YORK.
I.

There are many things that link the capital city of financial and
commercial America, to the State of Ohio, that New England
enterprise, and New York encouragement, and Virginian patriotism,
did so much to build beyond the Alleghenies. It is not merely in the
associations and connections of to-day that New York and Ohio are
bound together. A pregnant era of the early past, was disposed
toward good results forever, by the patriotic generosity of the Empire
State, at a time when Ohio was but a name in the far off wilderness;
a promise that many things must nurture, before it could be realized.
Historians will recall, when this much has been said, the events
that were pressed close upon each other, before the soil upon which
Ohio now stands, was declared the property of the nation,
disentangled from the conflicting claims of jealous States, and how
New York by her self-renunciation, led the way to harmony. For a
century had Virginia and Connecticut made their claims to the vast
westward territory; vaster than the imagination of any living man
then conceived. When the French were driven from the lands west
of the bounds of Pennsylvania, the contention commenced, and
claims were urged from time to time, until both voices of dispute
were temporarily silenced by the war in which the rivals fought side
by side for the freedom of both. When that conflict was ended, the
question again arose; not, this time, with the English Crown as the
greater power, but with the loose jointed Confederation, under which
America endeavored to work out a national salvation. Virginia, made
her demand under the grant of James, in 1609, which gave her: “All
those lands, countries and territories, situated, lying, and being in
that part of America called Virginia, from the point of the eastern
land called Cape or Point Comfort, all that space and circuit of land
lying, from the seacoast of the precinct aforesaid, up into the land,
throughout, from sea to sea, west and northwest, and also all the
islands lying within one hundred miles along the coast of the both
seas of the precinct aforesaid.”
This generous King, who was giving away so much that did not
belong to him, was really giving more than he dreamed of; for the
writer of the grant evidently believed that the South Sea, or Pacific
Ocean, was but little westward of the Atlantic, and never dreamed
that he was extending his line so as to take in the magnificent
Western and Northwestern empire of to-day.
Connecticut made her claim under Charles the II, who in 1662,
gave to the colony “All that part of our dominion in New England, in
America, bounded on the east by the Narragansett River, commonly
called Narragansett Bay, where the said river falleth into the sea,
and on the north by the line of the Massachusetts plantation, and on
the south by the sea, and in longitude as the line of the
Massachusetts colony, running from east to west; that is to say, from
the said Narragansett Bay, on the east to the South Sea on the west
part, with the islands thereto adjoining.”
It was under this very vague, but very extensive grant, that
Connecticut laid claim to, and maintained that claim, for that part of
Ohio known the world over, as the “Connecticut Western Reserve.”
While Virginia, Connecticut and Pennsylvania were warring in the
courts, in the legislatures, and before the people over their various
claims, there were many others who virtually assumed that the
whole unoccupied and unorganized land to the west, belonged to
the nation at large, and that no state had a right to exclusive
jurisdiction. This discussion threatened all sorts of difficulties, at a
time when peace and prosperity could only come through a mutual
helpfulness and internal harmony, and the wisest and most patriotic
declared themselves willing to waive all personal claims, and allow
the national government to administer the general estate for the
general good. Congress so viewed it, and appealed to the States to
yield their claims. The first response came from New York, which
conceded all her possible ownership to western territory, to the
general government, and the other States followed in her wake.
Virginia followed New York; and Massachusetts Virginia; and
eventually Connecticut came into line.
In the appeal of Congress to the States there was no ambiguity as
to the purpose to which these lands were to be devoted. The act of
October 10, 1780, resolved that “the unappropriated lands that may
be ceded or relinquished to the United States by any particular
State,” should be disposed of “for the common benefit of the United
States, and shall be settled and formed into distinct republican
States, which shall become members of the Federal Union, and have
the same right of sovereignty, freedom and independence as the
other States; that each which shall be so formed shall contain a
suitable extent of territory not less than one hundred nor more than
one hundred and fifty miles square, or as near thereto as
circumstances will admit, that the necessary and reasonable expense
which any particular State shall have incurred since the
commencement of the present war, in subduing any part of the
territory that may be ceded or relinquished to the United States,
shall be reimbursed.” It was further agreed that said lands should be
“granted or settled at such times and under such regulations” as
should be thereafter agreed upon by the United States, or any nine
or more of them.
In less than six months after the issuing of this broad invitation,
New York set an example of generosity to her young sister States,
which had so much yet to learn in the way of mutual concessions for
the general good. And she made no conditions in her surrender. She
simply said that she would draw a line across the western end of
Lake Ontario, north and south, and that while all east of it should be
hers, all west would be forever quit-claimed to the nation. It took
Virginia three years to make up her mind, and when she waived her
claim in March, 1784, she yet reserved nearly four million acres to
the south and east of the Ohio. The year following, Massachusetts
came in with no conditions, while Connecticut followed, in the fall of
1786, conditioning that she should retain the magnificent Western
Reserve, upon which a New Connecticut was eventually built in the
wilderness—that Reserve that has played so important a part in the
history, and the moral development of the republic. South Carolina,
North Carolina and Georgia, at last straggled, one by one, into the
path of manifest destiny; although the century had turned the point
of time by two notches, before the last hand was lessened, and the
Nation became in law what she had already been in fact—the
architect and master of the splendid empire that stretched from the
western edge of the civilization of that day, to where the Spaniard
and the Frenchman still held a nominal right to the westward of the
Mississippi.
With these cessions, the territorial system of our government
came into existence. That which Georgia gave, became the
Mississippi Territory; that from the Carolinas, the Southwest
Territory; and all that north of the Ohio River, the Northwest
Territory; and this brings us to a point where New York again had a
part in creating the State of Ohio, and in dedicating the soil upon
which she was reared, forever to the cause of human liberty.
It was within the limits of her chief city that the very foundation
stones, not only of the one State but of many, were laid with a far-
seeing wisdom and prophetic foresight that mark the men of that
early Congress as among the sages of legislative wisdom. In the old
hall, that stood at the corner of Wall and Broad streets, where the
restless oceans of a financial world roll in a flood that never rests,
and to which the lines of monetary interest center from all the far-off
corners of the land, upon the spot now hallowed to the memory of
Washington by a colossal statue of bronze, there was enacted, in the
midsummer of 1787, an ordinance that has well been called[10] “The
most important legislative act in American History”—there came into
existence a law that gave Ohio and Indiana, and that galaxy of
northwestern states to the Union; those free states, without which
that Union never could have been saved in the day of its imminent
peril.
Many States have been created, many important acts have been
passed by the various Congresses that have sat in New York, in
Philadelphia, and in Washington, but there was in this measure
something that saved the nation from being sometime all slave; that
reserved for freedom an empire that by mere stress of moral
example if in nothing else, was a menace forever before the
slaveholder. In that ordinance was one little clause that made Ohio
and Wisconsin and Illinois what they afterwards became.
“There shall be,” it recited, “neither slavery, nor involuntary
servitude in said territory, otherwise than in the punishment of
crimes.” Simple enough these words sound now, when human
bondage upon American soil is but the echo of a dead past, but for
the day in which they were uttered, they were the clarion call of a
new era—the death knell of a monster wrong; and the voice was
none the less that of God speaking in human legislation, because
many of the men who had become His instrument, had no dream of
the great things to which they had put their hands, and to which
they had given their votes.
So, in one sense, Ohio may be said to have had her beginning in
New York. From the days of her earliest childhood, she has been a
willing neighbor, willing to give and take of friendly offices with her
elder sister to the East. Two of her chief magistrates were the sons
of the Empire State; she has borrowed not a little of her legislation
from the experience of the older State; she patterned her canals
after those which DeWitt Clinton had so largely aided to bring into
being; she has developed many of her native resources by New
York’s financial aid; she has sought to build her railways so that they
should lead direct to the metropolis; she has in a thousand ways
acknowledged the commercial and financial supremacy of the
greater city and State; and last, but not the least, she has sent
scores of her sons to the East, to prove that the Buckeye is capable
of gaining and holding his own among the best, in any lines of
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