Elusive Citizenship: Immigration, Asian Americans, and the Paradox of Civil Rights

Notes

Notes notes to chapter 1 1. Tex. Educ. Code Ann. §21.031 (1981). For a brief but useful summary of recent state responses to undocumented aliens in education, including the case in Texas, see Lora Grandrath, Illegal Immigrants and Public Education: Is There a Right to the 3 R’s? 30 Val. U. L. Rev. 749 (1996). 2. Plyler v. Doe, 457 U.S. 202, 205 (1982). 3. Id., at 210. 4. Id., at 213, where Brennan quotes Field from Wong Wing v. United States, 163 U.S. 228 (1896). 5. Id., at 218–219. 6. Id., at 220, quoting Trimble v. Gordon, 430 U.S. 762, 770. 7. Id. 8. Id. 9. Id., at 222. 10. Id., at 221. See San Antonio School District v. Rodriguez, 411 U.S. 1 (1973); Meyer v. Nebraska, 262 U.S. 390 (1923); Ambach v. Norwick, 441 U.S. 68 (1979); and Wisconsin v. Yoder, 406 U.S. 205 (1972). That education is not a “fundamental right” has a direct bearing on Equal Protection analysis , at least during Plyler. A government denial of a “fundamental right”—a right specifically mentioned in the Constitution or a right articulated as “fundamental ” within the Court’s own precedents—requires the courts to apply a “strict” level of scrutiny to the grounds of the denial. The courts would search for a “compelling justification” for why the right was or should be denied, and unless they found one, the denial would be rendered unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. 11. Brown v. Board of Education, 347 U.S. 483, 493 (1954). The quote continues : “Today it is a principal instrument in awakening the child to cultural values , in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education . Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” 159 12. 457 U.S., at 222. 13. Id., at 223–224. Moreover, “the stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions. . . . In determining the rationality of [the state’s rule], we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in [the Texas rule] can hardly be considered rational.” 14. Id., at 226. Brennan’s reference was clearly to the Immigration Reform and Control Act of 1986 (IRCA). This federal law punished American employers who knowingly hired illegal immigrants, but it also “legalized” large numbers of illegal immigrants who had resided in the United States for a number of years. Provided that such persons could prove extended residency in the United States, they were eligible for permanent residency as a form of relief. 15. Id., at 230. This reasoning has led several influential scholars to conclude that the Equal Protection Clause and other important constitutional safeguards stand for an “anti-caste” principle in American law. In other words, AngloAmerican legal principles either mitigate against, or should mitigate against, the development and continuation of a permanent caste in liberal democracies like the United States. For a statement of this position, see Cass Sunstein, The AntiCaste Principle, 94 Mich. L. Rev. 2410 (1994). 16. 457 U.S., at 252–253. 17. Id., at 253–254. Burger cited from Brennan’s majority opinion, at 221. 18. Id., at 254. notes to chapter 2 1. See generally, First Treatise, and Robert Filmer, Patriarchia, in John Locke, Two Treatises of Government (Thomas Cook, ed., 1947), hereafter Filmer. Hereafter, references to “First Treatise” and “Second Treatise” refer to Locke’s Two Treatises of Government. 2. See Filmer, ch. 1, §§4–6; Locke, First Treatise, §§16–20, and also, Second Treatise, §§75–76, discussed later. A thorough review of this debate, as well as a full discussion of the theory of equality developed by Locke, is presented in Jeremy Waldron, God, Locke, and Equality: Christian Foundations in Locke’s Political Thought (2003). According to Waldron, contemporary theorists have underestimated or ignored the importance of Christianity to Locke’s political philosophy. Waldron suggests a corrective: “I want to ask, not...