Zorro at the Border

The American Superhero Myth Relies on a Distinction Between Breaking a Law and Criminality.

Photo by the author. Outside El Fuerte, Sinaloa, Mexico.

What makes a criminal?

The question loops in my mind as we pull up to the U.S.-Mexico border. From the Mexican side, from Nogales, Sonora I can see, through the security checkpoint, Nogales, Arizona. Two cities that share a name and straddle a border. They were birthed together, these two cities, born attached. Siamese twins connected by some vital organ. The operation to separate them is both tremendously complicated and potentially lethal.

“This isn’t a border, it’s a scar,” I remember Mexican novelist Carlos Fuentes has said.

The question of the Siamese Cities quiets and the question of what makes a criminal takes over again. It’s a loop in my head again.

What makes a criminal?…What makes a criminal?…

Before I can pursue the question, the American border agent asks for our passports. For a brief instant, my lunch drops in my stomach as I search frantically in my bag. I realize, with relief, that it’s sitting on my lap. We hand over our passports — bought with money that would be equivalent to the monthly minimum wage in Guatemala. The agent asks where we’ve been and where we’re going. He asks how many people are in the car.

“Two of us,” my friend says.

We’ve pulled up to the border in a large Sprinter Van. The agent’s not exactly incredulous, but he cocks an eyebrow nevertheless. Do two guys need such a large van? he seems to be thinking.

We haven’t been smuggling anything. No undocumented individuals are in the van. My buddy lives in Mexico, in a small surf town on Mexico’s westcoast. I agreed to drive with him back to Oregon. It’s been the better part of four days on the road. I’m here to help him drive, but also to research Zorro. It’s a new project for me. I’m investigating the myth and history surrounding the pop culture icon. We stayed in a Zorro-themed hotel in El Fuerte, Sinaloa. It claims to be the birthplace of the fictional Don Diego de la Vega, Zorro’s alter ego. We also visited the very real birthplace of another individual. Joaquin Murrieta, a Mexican bandit some have said gave inspiration to the 1919 pulp novel The Curse of Capistrano, written by Johnston McCulley. The McCulley novel is where the Zorro character made its debut.

“Swiftly out of the night rode the masked and cloaked Zorro, with flashing sword, ready to right a great wrong!”

I snap out of my Zorro thoughts and the question of What makes a Criminal? comes back to me.

Because I love pop culture, and study it professionally, the answer comes to me from another pop culture source. Not Zorro, immediately, but from a genre that is close to Zorro. The Western. I think of the Coen Brothers’ 2010 adaptation of True Grit. Matt Damon plays LaBoeuf, a buckskin clad dandy and Texas lawman. “You could argue,” LaBoeuf tells Rooster Cogburn (Jeff Bridges) and Mattie (Hailee Steinfeld), “ that the shooting of the dog was merely an instance of malum prohibitum, but the shooting of a senator is indubitably an instance of malum in se.”

“Malla-men what?” Cogburn spits back.

Mattie, the smart-as-a-whip protagonist, answers: “Malum in se. The distinction is between an act that is wrong in itself, and an act that is wrong only according to our laws and mores. It is Latin.”

The context doesn’t matter — shooting a dog or a senator — but the distinction hits me like a slap. The looping question, What makes a Criminal? finally stops, and I’m able to make sense of the question.

Isn’t our whole notion of justice in America based on this distinction? I think to myself. We have a love and a devotion, in America, to a species of individual — the avenger, the superhero, the vigilante, even — who operates on a distinction between actions being considered wrong because they are prohibited, and actions that are wrong because they are morally evil. We give room, in popular culture, for the breaking of laws in the pursuit of justice. We actually believe that justice is sometimes achieved outside the law.

From Zorro, to Batman, to Superman, to the Justice League, and the Avengers — and I should note an early Zorro story called Zorro’s companions the Avengers — all our biggest heroes establish their action of putting the world to rights based on the distinction between malum prohibitum (wrong based on breaking a statute) and malum in se (wrong because it is intrinsically, morally evil.)

I try to close the loop in my head. Zorro…legal distinctions…the border…undocumented immigrants. As we drive north, through a landscape that looks virtually the same as the it did on the Mexican side of the border, what I’ve been wrestling with finally gets pinned down.

We, in America, expect criminality to be judged, ultimately, not on breaking a statute but on whether the action is fundamentally right or wrong. There’s a whole moral aspect, whether one wants to admit it, that’s part of the family separation crisis. I think of the many “choiceless choices” made by migrant parents. Fleeing volcanoes, earthquakes, violence, and poverty — but, still, the decision to remain with their children to seek something better. That seems pretty morally upright, I think. But, at the border, criminality comes in the form of a piece of paper. It’s based on American statutes, American politics. These papers are gained through money (which many migrants don’t have), through power (which many migrants don’t have), and through sheer luck (which many migrants don’t have).

Is there a distinction to be made between crossing the border without papers and the act of separating children from parents at the border? Perhaps LaBoeuf and perhaps Zorro would say, certainly, that this, indeed, is a distinction to be made. The undocumented are not criminals for crossing a border. A family separation policy that the American Academy of Pediatrics has called child abuse, is criminal. Even Laura Bush, no liberal herself, has recently said, “this zero-tolerance policy is cruel. It is immoral. And it breaks my heart.”

As we drive on, I imagine a lone rider, masked and cloaked, silhouetted against the distant hill overlooking the border. Zorro and other heroes, which Americans love and venerate — even the conservative darling Jack Reacher — break the law, but in the pursuit of justice. Many migrant parents are making just such a choice in trying to cross the U.S.-Mexican border with their children.

Stephen Andes, Ph.D. is a history professor. His current project is the myth and history of Zorro. Stay tuned until next time…