The Plessy Myth: Justice Harlan and the Chinese Cases

Iowa Law Review

Volumn 82, Issue 1, 1996, Pages 151-182

  Chin, Gabriel J ^a,b,c,d  

^a WESTERN NEW ENGLAND UNIVERSITY   (United States)

^b WESLEYAN UNIVERSITY   (United States)

^c UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

^d YALE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 0346678134     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (247)

1. 163 U.S. 537, 552 (1896) (Harlan, J., dissenting). For the background of the case, see Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (1987); Paul Oberst, The Strange Career of Plessy v. Ferguson, 15 Ariz. L. Rev. 389 (1973); C. Vann Woodward, The Case of the Louisiana Traveler, in Quarrels That Have Shaped the Constitution 157 (John Garraty ed., rev. ed. 1987).
2. 163 U.S. 537, 552 (1896) (Harlan, J., dissenting). For the background of the case, see Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (1987); Paul Oberst, The Strange Career of Plessy v. Ferguson, 15 Ariz. L. Rev. 389 (1973); C. Vann Woodward, The Case of the Louisiana Traveler, in Quarrels That Have Shaped the Constitution 157 (John Garraty ed., rev. ed. 1987).
3. 163 U.S. 537, 552 (1896) (Harlan, J., dissenting). For the background of the case, see Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (1987); Paul Oberst, The Strange Career of Plessy v. Ferguson, 15 Ariz. L. Rev. 389 (1973); C. Vann Woodward, The Case of the Louisiana Traveler, in Quarrels That Have Shaped the Constitution 157 (John Garraty ed., rev. ed. 1987).
4. 347 U.S. 483 (1954).
5. See William J. Brennan, Jr., In Defense of Dissents, 37 Hastings L.J. 427, 431 (1986) (calling the dissent "masterful"); Michael McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1120 (1995) (calling the dissent "justly famous"); Derek Bok, A Call for Pressure on Apartheid, Boston Globe, Apr. 7, 1985, Focus Section, at A21 (stating that the sentiments in Harlan's dissent "reflect ideals central to our national creed"); Edwin Yoder, Another Blunder on Civil Rights, Wash. Post, June 7, 1983, at 1 (noting that the dissent was "heroic"); see also Patterson v. McLean Credit Union, 491 U.S. 164, 174-75 (1989) (citing Plessy dissent, along with Brown and one other case, as evidence of "our society's deep commitment to the eradication of discrimination based on a person's race or the color of his or her skin"); T. Alexander Aleinikoff, Re-Reading Justice Harlan's Dissent in Plessy v. Ferguson: Freedom, Anti-Racism, and Citizenship, 1992 U. Ill. L. Rev. 961, 961 ("Justice Harlan's [Plessy dissent] has become an important cultural text in late twentieth century America."); Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 Const. Commentary 257, 266 (1996) (calling dissent "justly lauded"); Louis Filler, John M. Harlan, in 2 The Justices Of The Supreme Court, 1789-1969, Their Lives And Major Opinions 289 (Leon Friedman & Fred Israel eds., 1969) ("Like all great truths, Harlan's brilliantly expressed dissent In Plessy seems obvious now.");.
6. See William J. Brennan, Jr., In Defense of Dissents, 37 Hastings L.J. 427, 431 (1986) (calling the dissent "masterful"); Michael McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1120 (1995) (calling the dissent "justly famous"); Derek Bok, A Call for Pressure on Apartheid, Boston Globe, Apr. 7, 1985, Focus Section, at A21 (stating that the sentiments in Harlan's dissent "reflect ideals central to our national creed"); Edwin Yoder, Another Blunder on Civil Rights, Wash. Post, June 7, 1983, at 1 (noting that the dissent was "heroic"); see also Patterson v. McLean Credit Union, 491 U.S. 164, 174-75 (1989) (citing Plessy dissent, along with Brown and one other case, as evidence of "our society's deep commitment to the eradication of discrimination based on a person's race or the color of his or her skin"); T. Alexander Aleinikoff, Re-Reading Justice Harlan's Dissent in Plessy v. Ferguson: Freedom, Anti-Racism, and Citizenship, 1992 U. Ill. L. Rev. 961, 961 ("Justice Harlan's [Plessy dissent] has become an important cultural text in late twentieth century America."); Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 Const. Commentary 257, 266 (1996) (calling dissent "justly lauded"); Louis Filler, John M. Harlan, in 2 The Justices Of The Supreme Court, 1789-1969, Their Lives And Major Opinions 289 (Leon Friedman & Fred Israel eds., 1969) ("Like all great truths, Harlan's brilliantly expressed dissent In Plessy seems obvious now.");.
7. See William J. Brennan, Jr., In Defense of Dissents, 37 Hastings L.J. 427, 431 (1986) (calling the dissent "masterful"); Michael McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1120 (1995) (calling the dissent "justly famous"); Derek Bok, A Call for Pressure on Apartheid, Boston Globe, Apr. 7, 1985, Focus Section, at A21 (stating that the sentiments in Harlan's dissent "reflect ideals central to our national creed"); Edwin Yoder, Another Blunder on Civil Rights, Wash. Post, June 7, 1983, at 1 (noting that the dissent was "heroic"); see also Patterson v. McLean Credit Union, 491 U.S. 164, 174-75 (1989) (citing Plessy dissent, along with Brown and one other case, as evidence of "our society's deep commitment to the eradication of discrimination based on a person's race or the color of his or her skin"); T. Alexander Aleinikoff, Re-Reading Justice Harlan's Dissent in Plessy v. Ferguson: Freedom, Anti-Racism, and Citizenship, 1992 U. Ill. L. Rev. 961, 961 ("Justice Harlan's [Plessy dissent] has become an important cultural text in late twentieth century America."); Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 Const. Commentary 257, 266 (1996) (calling dissent "justly lauded"); Louis Filler, John M. Harlan, in 2 The Justices Of The Supreme Court, 1789-1969, Their Lives And Major Opinions 289 (Leon Friedman & Fred Israel eds., 1969) ("Like all great truths, Harlan's brilliantly expressed dissent In Plessy seems obvious now.");.
8. See William J. Brennan, Jr., In Defense of Dissents, 37 Hastings L.J. 427, 431 (1986) (calling the dissent "masterful"); Michael McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1120 (1995) (calling the dissent "justly famous"); Derek Bok, A Call for Pressure on Apartheid, Boston Globe, Apr. 7, 1985, Focus Section, at A21 (stating that the sentiments in Harlan's dissent "reflect ideals central to our national creed"); Edwin Yoder, Another Blunder on Civil Rights, Wash. Post, June 7, 1983, at 1 (noting that the dissent was "heroic"); see also Patterson v. McLean Credit Union, 491 U.S. 164, 174-75 (1989) (citing Plessy dissent, along with Brown and one other case, as evidence of "our society's deep commitment to the eradication of discrimination based on a person's race or the color of his or her skin"); T. Alexander Aleinikoff, Re-Reading Justice Harlan's Dissent in Plessy v. Ferguson: Freedom, Anti-Racism, and Citizenship, 1992 U. Ill. L. Rev. 961, 961 ("Justice Harlan's [Plessy dissent] has become an important cultural text in late twentieth century America."); Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 Const. Commentary 257, 266 (1996) (calling dissent "justly lauded"); Louis Filler, John M. Harlan, in 2 The Justices Of The Supreme Court, 1789-1969, Their Lives And Major Opinions 289 (Leon Friedman & Fred Israel eds., 1969) ("Like all great truths, Harlan's brilliantly expressed dissent In Plessy seems obvious now.");.
9. See William J. Brennan, Jr., In Defense of Dissents, 37 Hastings L.J. 427, 431 (1986) (calling the dissent "masterful"); Michael McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1120 (1995) (calling the dissent "justly famous"); Derek Bok, A Call for Pressure on Apartheid, Boston Globe, Apr. 7, 1985, Focus Section, at A21 (stating that the sentiments in Harlan's dissent "reflect ideals central to our national creed"); Edwin Yoder, Another Blunder on Civil Rights, Wash. Post, June 7, 1983, at 1 (noting that the dissent was "heroic"); see also Patterson v. McLean Credit Union, 491 U.S. 164, 174-75 (1989) (citing Plessy dissent, along with Brown and one other case, as evidence of "our society's deep commitment to the eradication of discrimination based on a person's race or the color of his or her skin"); T. Alexander Aleinikoff, Re-Reading Justice Harlan's Dissent in Plessy v. Ferguson: Freedom, Anti-Racism, and Citizenship, 1992 U. Ill. L. Rev. 961, 961 ("Justice Harlan's [Plessy dissent] has become an important cultural text in late twentieth century America."); Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 Const. Commentary 257, 266 (1996) (calling dissent "justly lauded"); Louis Filler, John M. Harlan, in 2 The Justices Of The Supreme Court, 1789-1969, Their Lives And Major Opinions 289 (Leon Friedman & Fred Israel eds., 1969) ("Like all great truths, Harlan's brilliantly expressed dissent In Plessy seems obvious now.");.
10. See William J. Brennan, Jr., In Defense of Dissents, 37 Hastings L.J. 427, 431 (1986) (calling the dissent "masterful"); Michael McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1120 (1995) (calling the dissent "justly famous"); Derek Bok, A Call for Pressure on Apartheid, Boston Globe, Apr. 7, 1985, Focus Section, at A21 (stating that the sentiments in Harlan's dissent "reflect ideals central to our national creed"); Edwin Yoder, Another Blunder on Civil Rights, Wash. Post, June 7, 1983, at 1 (noting that the dissent was "heroic"); see also Patterson v. McLean Credit Union, 491 U.S. 164, 174-75 (1989) (citing Plessy dissent, along with Brown and one other case, as evidence of "our society's deep commitment to the eradication of discrimination based on a person's race or the color of his or her skin"); T. Alexander Aleinikoff, Re-Reading Justice Harlan's Dissent in Plessy v. Ferguson: Freedom, Anti-Racism, and Citizenship, 1992 U. Ill. L. Rev. 961, 961 ("Justice Harlan's [Plessy dissent] has become an important cultural text in late twentieth century America."); Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 Const. Commentary 257, 266 (1996) (calling dissent "justly lauded"); Louis Filler, John M. Harlan, in 2 The Justices Of The Supreme Court, 1789-1969, Their Lives And Major Opinions 289 (Leon Friedman & Fred Israel eds., 1969) ("Like all great truths, Harlan's brilliantly expressed dissent In Plessy seems obvious now.");.
11. See William J. Brennan, Jr., In Defense of Dissents, 37 Hastings L.J. 427, 431 (1986) (calling the dissent "masterful"); Michael McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1120 (1995) (calling the dissent "justly famous"); Derek Bok, A Call for Pressure on Apartheid, Boston Globe, Apr. 7, 1985, Focus Section, at A21 (stating that the sentiments in Harlan's dissent "reflect ideals central to our national creed"); Edwin Yoder, Another Blunder on Civil Rights, Wash. Post, June 7, 1983, at 1 (noting that the dissent was "heroic"); see also Patterson v. McLean Credit Union, 491 U.S. 164, 174-75 (1989) (citing Plessy dissent, along with Brown and one other case, as evidence of "our society's deep commitment to the eradication of discrimination based on a person's race or the color of his or her skin"); T. Alexander Aleinikoff, Re-Reading Justice Harlan's Dissent in Plessy v. Ferguson: Freedom, Anti-Racism, and Citizenship, 1992 U. Ill. L. Rev. 961, 961 ("Justice Harlan's [Plessy dissent] has become an important cultural text in late twentieth century America."); Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 Const. Commentary 257, 266 (1996) (calling dissent "justly lauded"); Louis Filler, John M. Harlan, in 2 The Justices Of The Supreme Court, 1789-1969, Their Lives And Major Opinions 289 (Leon Friedman & Fred Israel eds., 1969) ("Like all great truths, Harlan's brilliantly expressed dissent In Plessy seems obvious now.");.
12. William Bradford Reynolds, Racial Quotas Hurt Blacks and the Constitution, N.Y. Times, Dec. 9, 1985, at A22 (letter to the editor); see also William Bradford Reynolds, An Equal Opportunity Scorecard, 21 Ga. L. Rev. 1007, 1011-12 (1987) (praising Plessy dissent); William Bradford Reynolds, Individualism v. Group Rights: The Legacy of Brown, 93 Yale L.J. 995, 997 (1984) (same).
13. William Bradford Reynolds, Racial Quotas Hurt Blacks and the Constitution, N.Y. Times, Dec. 9, 1985, at A22 (letter to the editor); see also William Bradford Reynolds, An Equal Opportunity Scorecard, 21 Ga. L. Rev. 1007, 1011-12 (1987) (praising Plessy dissent); William Bradford Reynolds, Individualism v. Group Rights: The Legacy of Brown, 93 Yale L.J. 995, 997 (1984) (same).
14. William Bradford Reynolds, Racial Quotas Hurt Blacks and the Constitution, N.Y. Times, Dec. 9, 1985, at A22 (letter to the editor); see also William Bradford Reynolds, An Equal Opportunity Scorecard, 21 Ga. L. Rev. 1007, 1011-12 (1987) (praising Plessy dissent); William Bradford Reynolds, Individualism v. Group Rights: The Legacy of Brown, 93 Yale L.J. 995, 997 (1984) (same).
15. The brief was unambiguous about the meaning of the Plessy dissent "Our Constitution," said Justice Harlan . . . "is color-blind, and neither knows nor tolerates classes among citizens." It is the dissenting opinion of Justice Harlan, rather than the majority opinion in Plessy v. Ferguson, that is in keeping with the scope and meaning of the Fourteenth Amendment as consistently defined by this Court both before and after Plessy v. Ferguson. Brief for Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument at 41, Brown v. Board of Educ., 347 U.S. 483 (1954), reprinted in 49 Landmark Briefs And Arguments Of The Supreme Court Of The United States: Constitutional Law 481, 554 (Philip B. Kurland & Gerhard Casper eds., 1975) [hereinafter Landmark Briefs]. Among the brief's signers were future Supreme Court Justice Thurgood Marshall; future federal judges Robert L. Carter, Constance Baker Motley, Spottswood Robinson, III, and Jack Weinstein; Charles L. Black, Jr., later Sterling Professor at Yale Law School; and U.S. Transportation Secretary-to-be William T. Coleman, Jr.
16. See G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges 131 (1976).
17. See Charles Fried, Order and Law: Arguing the Reagan Revolution: A First-Hand Account 101 (1991) (noting that the term "color-blind," used by Harlan in the Plessy dissent, "offered a pretty good slogan for . . . the Reagan Revolution['s attack on racial quotas and preferences]").
18. See Sidney Hook, Punishing the Innocent is Unjust Redress, N.Y. Times, June 7, 1986, at A26.
19. See Terry Eastland & William Bennett, Counting by Race: Equality from the Founding Fathers to Bakke and Weber 88 (1979) ("The idea of moral equality had been frustrated, and the dissents of John Harlan in 1883 and 1896 had proved tiny resistance to a flood tide of racism and its apologists.").
20. Letters to newspaper editors opposing affirmative action measures routinely rely on the dissent See, e.g., Bruce Fein, Choosing by Race is Doing the Wrong Thing, USA Today, June 29, 1990, News Section, at 10A (guest column); Steven Hayward, A Peek Under the Rug at the Politics of Race, Chi. Trib., Nov. 25, 1991, Perspective Section, at 19; J. Al Latham, Jr., Set Aside System for Minority Businesses is Flawed, N.Y. Times, May 2, 1986, at A34 (letter by the Staff Director of the U.S. Commission on Civil Rights).
21. Letters to newspaper editors opposing affirmative action measures routinely rely on the dissent See, e.g., Bruce Fein, Choosing by Race is Doing the Wrong Thing, USA Today, June 29, 1990, News Section, at 10A (guest column); Steven Hayward, A Peek Under the Rug at the Politics of Race, Chi. Trib., Nov. 25, 1991, Perspective Section, at 19; J. Al Latham, Jr., Set Aside System for Minority Businesses is Flawed, N.Y. Times, May 2, 1986, at A34 (letter by the Staff Director of the U.S. Commission on Civil Rights).
22. Letters to newspaper editors opposing affirmative action measures routinely rely on the dissent See, e.g., Bruce Fein, Choosing by Race is Doing the Wrong Thing, USA Today, June 29, 1990, News Section, at 10A (guest column); Steven Hayward, A Peek Under the Rug at the Politics of Race, Chi. Trib., Nov. 25, 1991, Perspective Section, at 19; J. Al Latham, Jr., Set Aside System for Minority Businesses is Flawed, N.Y. Times, May 2, 1986, at A34 (letter by the Staff Director of the U.S. Commission on Civil Rights).
23. See Fullilove v. Klutznick, 448 U.S. 448, 522-23 (1980) (Stewart, J., joined by Rehnquist, J., dissenting).
24. See id.
25. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 521 (1989) (Scalia, J., concurring in the judgment).
26. See James Wright, . . . Get Over It, L.A. Times, Nov. 9, 1994, at B7 (quoting Justice Clarence Thomas as relying on Plessy dissent for his opposition to affirmative action).
27. See Metro Broad., Inc. v. FCC, 497 U.S. 547, 631-38 (1990) (Kennedy, J., joined by Scalia, J., dissenting), overruled in part by Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995).
28. See Aleinikoff, supra note 3.
29. See G. Sidney Buchanan, Johnson v. Transportation Agency, Santa Clara County: A Paradigm of Affirmative Action, 26 Hous. L. Rev. 229, 272 (1989) ("Can affirmative action in its modern form be reconciled with Harlan's famous 'color-blind' statement? I believe that it can.").
30. See Garrett Epps, Of Constitutional Seances and Color-Blind Ghosts, 72 N.C. L. Rev. 401, 442-43 (1994).
31. Professor Lawrence criticizes color-blindness as a "disease" because it posits that equality has already been achieved; Harlan's version of color-blindness, in contrast, was "benign" because he was describing an ideal. Charles R. Lawrence III, The Epidemiology of Color-Blindness: Learning to Think and Talk about Race, Again, 15 B.C. Third World L.J. 1,5 (1995); see also Charles R. Lawrence III, Race, Multiculturalism, and the Jurisprudence of Transformation, 47 Stan. L. Rev. 819, 823 (1995) ("Race is irrelevant, or should be. This is the meaning of Justice Harlan's admonition, 'Our Constitution is color-blind,' and of Martin Luther King's challenge that we judge one another by the 'content of our character' rather than the color of our skin.").
32. Professor Lawrence criticizes color-blindness as a "disease" because it posits that equality has already been achieved; Harlan's version of color-blindness, in contrast, was "benign" because he was describing an ideal. Charles R. Lawrence III, The Epidemiology of Color-Blindness: Learning to Think and Talk about Race, Again, 15 B.C. Third World L.J. 1,5 (1995); see also Charles R. Lawrence III, Race, Multiculturalism, and the Jurisprudence of Transformation, 47 Stan. L. Rev. 819, 823 (1995) ("Race is irrelevant, or should be. This is the meaning of Justice Harlan's admonition, 'Our Constitution is color-blind,' and of Martin Luther King's challenge that we judge one another by the 'content of our character' rather than the color of our skin.").
33. See Cass R. Sunstein, The Anticaste Principle, 92 Mich. L. Rev. 2410, 2435-36 (1994).
34. See Kathleen Sullivan, City of Richmond v. J.A. Croson Co.: The Backlash Against Affirmative Action, 64 Tul. L. Rev. 1609, 1613 n.23 (1990).
35. Laurence H. Tribe, American Constitutional Law 1525 (2d ed. 1988) ("Even for [Harlan,] this late nineteenth-century proponent of white dominance, it appears that the color-blind ideal was only shorthand for the concept that the fourteenth amendment prevents our law from enshrining and perpetuating white supremacy.").
36. See also Sally Morris, Comment, One More Battle in the Ongoing War over Affirmative Action: Metro Broadcasting, Inc. v. FCC, 26 New Eng. L. Rev. 921, 957 (1992) ("In affirmative action cases, Justice Harlan's words have been taken from their original context, where they meant that the Constitution lends no support to government sanctioned white supremacy, not that the benign use of race is always prohibited.").
37. A century to the week after it was issued, the Supreme Court honored Justice Harlan's dissent by using it to begin its historic decision in Romer v. Evans, prohibiting singling out of homosexuals for special discrimination: "One century ago, the first Justice Harlan admonished this Court that the Constitution 'neither knows nor tolerates classes among citizens.' Plessy[, 163 U.S. at 559] (dissenting opinion). Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake." Romer v. Evans, 116 S. Ct. 1620, 1623 (1996). This may be as dose as the dissent has ever come to being treated as positive law by a majority of the Court Cf. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 355 (1978) (Brennan, J., concurring in part and dissenting in part) ("[T]he position that [race] must be 'constitutionally an irrelevance' . . . , summed up by the shorthand phrase '[o]ur Constitution is color-blind,'" Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting), has never been adopted by this Court as the proper meaning of the Equal Protection Clause.") (citation omitted). The dissenters in Romer, by contrast, argued that in spite of Harlan's status as "an equal-protection lodestar[]" and notwithstanding the quoted language from Plessy, Harlan's jurisprudence did not support the majority's result. See Romer, 116 S. Ct. at 1636 (Scalia, J., dissenting).
38. Compare Bush v. Vera, 116 S. Ct. 1941, 2011 (1996) (Souter, J., dissenting) ("[D]espite their invocation of the ideal of a 'color blind' Constitution [citing Plessy dissent] appellants appear to concede that race-conscious districting is not always unconstitutional. . . that concession is wise.") (quoting Shaw v. Reno, 509 U.S. 630, 642 (1993)), with Johnson v. Grandy, 114 S. Ct. 2647, 2664 (1994) (Kennedy, J., concurring) (arguing that prohibition on racial classifications applies to districting, citing, inter alia, Harlan's Plessy dissent).
39. See W.B. Allen, It's a Big Mistake to Switch to "African American," Newsday, June 4, 1989, Ideas Section, at 7.
40. Hortense J. Spillers, Martin Luther King and the Style of the Black Sermon (quoting I Have a Dream speech), in III Martin Luther King, Jr.: Civil Rights Leader, Theologian, Orator 876, 888 (David J. Garrow ed., 1989).
41. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
42. Neil Gotanda and John a. powell, among others, have argued that strict color-blindness would perpetuate subordination. See Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 Stan. L. Rev. 1 (1991); john a. powell, An Agenda for the Post-Civil Rights Era, 29 U.S.F. L. Rev. 889 (1995).
43. Neil Gotanda and John a. powell, among others, have argued that strict color-blindness would perpetuate subordination. See Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 Stan. L. Rev. 1 (1991); john a. powell, An Agenda for the Post-Civil Rights Era, 29 U.S.F. L. Rev. 889 (1995).
44. Critical Race Theory is a school of thought in the legal academy which challenges traditional liberal-legalist approaches to civil rights law. See Richard Delgado, Introduction to Critical Race Theory: The Cutting Edge xiv (Richard Delgado ed., 1995) (discussing ideas developed by critical race theorists, of which one of the most prominent is that "racism is normal, not aberrant, in American society"); see also Critical Race Theory, The Key Writings That Formed the Movement (Kimberlé Crenshaw et al. eds., 1995). Harlan's dissent also contains a troubling apologia to white supremacy: The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. Plessy, 163 U.S. at 559. One wonders, though, if this can be read as largely descriptive, or as Toastmaster politesse, rather than as a commitment to hierarchy.
45. Critical Race Theory is a school of thought in the legal academy which challenges traditional liberal-legalist approaches to civil rights law. See Richard Delgado, Introduction to Critical Race Theory: The Cutting Edge xiv (Richard Delgado ed., 1995) (discussing ideas developed by critical race theorists, of which one of the most prominent is that "racism is normal, not aberrant, in American society"); see also Critical Race Theory, The Key Writings That Formed the Movement (Kimberlé Crenshaw et al. eds., 1995). Harlan's dissent also contains a troubling apologia to white supremacy: The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. Plessy, 163 U.S. at 559. One wonders, though, if this can be read as largely descriptive, or as Toastmaster politesse, rather than as a commitment to hierarchy.
46. Plessy, 163 U.S. at 560.
47. See id. at 557-58.
48. "[T]he judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case." Id. at 559.
49. See Loren Beth, John Marshall Harlan: The Last Whig Justice (1992); Tinsley E. Yarbrough, Judicial Enigma: The First Justice Harlan (1995).
50. See Loren Beth, John Marshall Harlan: The Last Whig Justice (1992); Tinsley E. Yarbrough, Judicial Enigma: The First Justice Harlan (1995).
51. See James Gordon, Did the First Justice Harlan Have a Black Brother?, 15 W. New Eng. L. Rev. 159, 236 (1993) (concluding based on examination of historical records that James Harlan, John Marshall Harlan's father, was both owner and father of Robert Harlan, who was born a slave, freed in 1848, and later an important Black Republican in Ohio), reprinted in Critical Race Theory: The Cutting Edge, supra note 30, at 122.
52. See James Gordon, Did the First Justice Harlan Have a Black Brother?, 15 W. New Eng. L. Rev. 159, 236 (1993) (concluding based on examination of historical records that James Harlan, John Marshall Harlan's father, was both owner and father of Robert Harlan, who was born a slave, freed in 1848, and later an important Black Republican in Ohio), reprinted in Critical Race Theory: The Cutting Edge, supra note 30, at 122.
53. Lochner v. New York, 198 U.S. 45, 65 (1905) (Harlan, J., dissenting).
54. The Civil Rights Cases, 109 U.S. 3, 33 (1883) (Harlan, J., dissenting).
55. Harlan served from 1877-1911.
56. Harlan ranked as one of twelve "greats" of the first hundred justices in a 1970 poll of legal scholars and historians. Albert Blaustein & Roy Mersky, The First 100 Justices 37 (1978) (discussing poll which appeared in the October 15, 1971 issue of LIFE and the November 1972 issue of the ABA Journal). Blaustein and Mersky report that Harlan "is best remembered for his dissent in Plessy v. Ferguson." Id. at 42. In a 1993 survey, Professors Mersky and Blaustein found that Harlan remained in the top ten. See William G. Ross, The Ratings Game: Factors that Influence Judicial Reputation, 79 Marq. L. Rev. 401, 445 (1996); see also Owen M. Fiss, Troubled Beginnings of the Modern State, 1888-1910, at 352 (1993) (The Oliver Wendell Holmes Devise History of the Supreme Court of the United States vol. VIII): For the New Deal generation, Holmes's dissent in Lochner was of the greatest importance, because it repudiated the constituitive theory of state power and made the New Deal constitutionally possible. For the next generation, defined by its attachment to Brown, it was Harlan's dissent in Plessy v. Farguson that was foundation-al. Id. (footnote omitted); Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle For Equality 715 (1976) ("Of the elder Harlan's many famous dissents, none was more luminous than his sole vote against the Court in Plessy."); Bernard Schwartz, A History of the Supreme Court 188 (1993) ("The Plessy decision gave rise to what has been termed one of the most vigorous dissents in Supreme Court history - certainly the greatest delivered by Justice Harlan . . . .") (citation omitted).
57. Harlan ranked as one of twelve "greats" of the first hundred justices in a 1970 poll of legal scholars and historians. Albert Blaustein & Roy Mersky, The First 100 Justices 37 (1978) (discussing poll which appeared in the October 15, 1971 issue of LIFE and the November 1972 issue of the ABA Journal). Blaustein and Mersky report that Harlan "is best remembered for his dissent in Plessy v. Ferguson." Id. at 42. In a 1993 survey, Professors Mersky and Blaustein found that Harlan remained in the top ten. See William G. Ross, The Ratings Game: Factors that Influence Judicial Reputation, 79 Marq. L. Rev. 401, 445 (1996); see also Owen M. Fiss, Troubled Beginnings of the Modern State, 1888-1910, at 352 (1993) (The Oliver Wendell Holmes Devise History of the Supreme Court of the United States vol. VIII): For the New Deal generation, Holmes's dissent in Lochner was of the greatest importance, because it repudiated the constituitive theory of state power and made the New Deal constitutionally possible. For the next generation, defined by its attachment to Brown, it was Harlan's dissent in Plessy v. Farguson that was foundation-al. Id. (footnote omitted); Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle For Equality 715 (1976) ("Of the elder Harlan's many famous dissents, none was more luminous than his sole vote against the Court in Plessy."); Bernard Schwartz, A History of the Supreme Court 188 (1993) ("The Plessy decision gave rise to what has been termed one of the most vigorous dissents in Supreme Court history - certainly the greatest delivered by Justice Harlan . . . .") (citation omitted).
58. Harlan ranked as one of twelve "greats" of the first hundred justices in a 1970 poll of legal scholars and historians. Albert Blaustein & Roy Mersky, The First 100 Justices 37 (1978) (discussing poll which appeared in the October 15, 1971 issue of LIFE and the November 1972 issue of the ABA Journal). Blaustein and Mersky report that Harlan "is best remembered for his dissent in Plessy v. Ferguson." Id. at 42. In a 1993 survey, Professors Mersky and Blaustein found that Harlan remained in the top ten. See William G. Ross, The Ratings Game: Factors that Influence Judicial Reputation, 79 Marq. L. Rev. 401, 445 (1996); see also Owen M. Fiss, Troubled Beginnings of the Modern State, 1888-1910, at 352 (1993) (The Oliver Wendell Holmes Devise History of the Supreme Court of the United States vol. VIII): For the New Deal generation, Holmes's dissent in Lochner was of the greatest importance, because it repudiated the constituitive theory of state power and made the New Deal constitutionally possible. For the next generation, defined by its attachment to Brown, it was Harlan's dissent in Plessy v. Farguson that was foundation-al. Id. (footnote omitted); Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle For Equality 715 (1976) ("Of the elder Harlan's many famous dissents, none was more luminous than his sole vote against the Court in Plessy."); Bernard Schwartz, A History of the Supreme Court 188 (1993) ("The Plessy decision gave rise to what has been termed one of the most vigorous dissents in Supreme Court history - certainly the greatest delivered by Justice Harlan . . . .") (citation omitted).
59. Harlan ranked as one of twelve "greats" of the first hundred justices in a 1970 poll of legal scholars and historians. Albert Blaustein & Roy Mersky, The First 100 Justices 37 (1978) (discussing poll which appeared in the October 15, 1971 issue of LIFE and the November 1972 issue of the ABA Journal). Blaustein and Mersky report that Harlan "is best remembered for his dissent in Plessy v. Ferguson." Id. at 42. In a 1993 survey, Professors Mersky and Blaustein found that Harlan remained in the top ten. See William G. Ross, The Ratings Game: Factors that Influence Judicial Reputation, 79 Marq. L. Rev. 401, 445 (1996); see also Owen M. Fiss, Troubled Beginnings of the Modern State, 1888-1910, at 352 (1993) (The Oliver Wendell Holmes Devise History of the Supreme Court of the United States vol. VIII): For the New Deal generation, Holmes's dissent in Lochner was of the greatest importance, because it repudiated the constituitive theory of state power and made the New Deal constitutionally possible. For the next generation, defined by its attachment to Brown, it was Harlan's dissent in Plessy v. Farguson that was foundation-al. Id. (footnote omitted); Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle For Equality 715 (1976) ("Of the elder Harlan's many famous dissents, none was more luminous than his sole vote against the Court in Plessy."); Bernard Schwartz, A History of the Supreme Court 188 (1993) ("The Plessy decision gave rise to what has been termed one of the most vigorous dissents in Supreme Court history - certainly the greatest delivered by Justice Harlan . . . .") (citation omitted).
60. Harlan ranked as one of twelve "greats" of the first hundred justices in a 1970 poll of legal scholars and historians. Albert Blaustein & Roy Mersky, The First 100 Justices 37 (1978) (discussing poll which appeared in the October 15, 1971 issue of LIFE and the November 1972 issue of the ABA Journal). Blaustein and Mersky report that Harlan "is best remembered for his dissent in Plessy v. Ferguson." Id. at 42. In a 1993 survey, Professors Mersky and Blaustein found that Harlan remained in the top ten. See William G. Ross, The Ratings Game: Factors that Influence Judicial Reputation, 79 Marq. L. Rev. 401, 445 (1996); see also Owen M. Fiss, Troubled Beginnings of the Modern State, 1888-1910, at 352 (1993) (The Oliver Wendell Holmes Devise History of the Supreme Court of the United States vol. VIII): For the New Deal generation, Holmes's dissent in Lochner was of the greatest importance, because it repudiated the constituitive theory of state power and made the New Deal constitutionally possible. For the next generation, defined by its attachment to Brown, it was Harlan's dissent in Plessy v. Farguson that was foundation-al. Id. (footnote omitted); Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle For Equality 715 (1976) ("Of the elder Harlan's many famous dissents, none was more luminous than his sole vote against the Court in Plessy."); Bernard Schwartz, A History of the Supreme Court 188 (1993) ("The Plessy decision gave rise to what has been termed one of the most vigorous dissents in Supreme Court history - certainly the greatest delivered by Justice Harlan . . . .") (citation omitted).
61. Plessy v. Ferguson, 163 U.S. 537, 560 (1896).
62. Id. at 561.
63. See infra text accompanying notes 46-101.
64. This Article generally uses "Chinese" to mean would-be immigrants of Chinese ancestry, and "Chinese Americans" to refer to citizens or permanent immigrants. Of course, these categories are not mutually exclusive.
65. See infra text accompanying notes 102-30.
66. See infra text accompanying notes 131-64.
67. For a description of racial discrimination in American naturalization law, see Elizabeth Hull, Naturalization and Denaturalisation, in Asian Americans and the Supreme Court 403-24 (Hyung-chan Kim ed., 1992). See also Gabriel J. Chin, Sumi Cho, Jerry Kang & Frank Wu, Beyond Self-interest Asian Pacific Americans Toward a Community of Justice 13-17 (1996) (describing historical discrimination against Asian Americans).
68. For a description of racial discrimination in American naturalization law, see Elizabeth Hull, Naturalization and Denaturalisation, in Asian Americans and the Supreme Court 403-24 (Hyung-chan Kim ed., 1992). See also Gabriel J. Chin, Sumi Cho, Jerry Kang & Frank Wu, Beyond Self-interest Asian Pacific Americans Toward a Community of Justice 13-17 (1996) (describing historical discrimination against Asian Americans).
69. The leading cases on this point are In re Hong Yen Chang, 24 P. 156, 157 (Cal. 1890) and In re Takuji Yamashita, 70 P. 482, 483 (Wash. 1902), in which the naturalization proceedings undergone by Asian graduates of American law schools were deemed void because Asians were racially ineligible for naturalization. See also Philip T. Nash, Asian-Americans and Their Rights for Employment and Education, in Asian Americans And The Supreme Court, supra note 46, at 897-908 (discussing statutory discrimination against Asians in employment and education).
70. The leading cases on this point are In re Hong Yen Chang, 24 P. 156, 157 (Cal. 1890) and In re Takuji Yamashita, 70 P. 482, 483 (Wash. 1902), in which the naturalization proceedings undergone by Asian graduates of American law schools were deemed void because Asians were racially ineligible for naturalization. See also Philip T. Nash, Asian-Americans and Their Rights for Employment and Education, in Asian Americans And The Supreme Court, supra note 46, at 897-908 (discussing statutory discrimination against Asians in employment and education).
71. The leading cases on this point are In re Hong Yen Chang, 24 P. 156, 157 (Cal. 1890) and In re Takuji Yamashita, 70 P. 482, 483 (Wash. 1902), in which the naturalization proceedings undergone by Asian graduates of American law schools were deemed void because Asians were racially ineligible for naturalization. See also Philip T. Nash, Asian-Americans and Their Rights for Employment and Education, in Asian Americans And The Supreme Court, supra note 46, at 897-908 (discussing statutory discrimination against Asians in employment and education).
72. See Thomas E. Stuen, Asian Americans and their Rights for Land Ownership, in Asian Americans And The Supreme Court, supra note 46, at 603-30 (discussing statutory prohibitions on Asian land ownership).
73. See, e.g., Baldwin v. Franks, 120 U.S. 678, 694-96 (1887) (Harlan, J., dissenting) (arguing that civil rights statute applicable to "persons" applies to Chinese and prohibits violation of rights secured to them under treaties); Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (Matthews, J., for a unanimous court, including Harlan, J.) (holding unconstitutional selective enforcement of facially-neutral zoning laws against Chinese laundry operators). 50. During Harlan's tenure on the Court, most of the Asian litigants were Chinese, so it may be unfair to saddle Harlan with a charge of being against all Asians. Yet, the legal framework he helped establish was applied to non-Chinese Asian immigrants as they began to immigrate. For a discussion of the development of the Asian Exclusion Acts, see Bill Ong Hing, Making And Remaking Asian America Through Immigration Policy, 1850-1990 (1993), See also Fiss, supra note 39, at 298-322 (addressing the Court's citizenship and immigration jurisprudence with regard to Chinese in the period 1888-1910).
74. 169 U.S. 649 (1898).
75. U.S. Const. amend. XIV, § 1 ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside.").
76. Act of May 6, 1882, ch. 126, 22 Stat. 58, repealed by Chinese Exclusion Repeal Act of 1943, ch. 344, 57 Stat. 600.
77. Act of Mar. 26, 1790, ch. 3, 1 Stat. 103 (limiting naturalization to "free white persons"), amended by Act of July 14, 1870, ch. 254, 16 Stat. 254, 256 (extending naturalization privileges to persons of African descent).
78. See Brief for the United States at 3-39, United States v. Wong Kim Ark, 169 U.S. 649 (1898) (No. 95-904), reprinted in 14 Landmark Briefs, supra note 5, at 6-42. The essence of the argument seemed to be that because Wong Kim Ark's parents were subjects of the Chinese Empire they were subject to its jurisdiction, and thus could not also be fully "subject to the jurisdiction" of the United States for purposes of the Citizenship Clause. See Brief for United States at 49-51, Wong Kim Ark (No. 95-904), reprinted in 14 Landmark Briefs, supra note 5, at 100-02.
79. Id. at 37.
80. United States v. Wong Kim Ark, 169 U.S. 649, 705 (1898). The majority made the persuasive observation that to hold that American-born Chinese were not citizens, simply because their parents were subjects of a foreign nation "would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States." Id. at 694.
81. Plessy v. Ferguson, 163 U.S. 537, 563 (1896) (Harlan, J., dissenting).
82. Wong Kim Ark, 169 U.S. at 731 (Fuller, C.J., joined by Harlan, J., dissenting).
83. Id. (quoting Fong Yue Ting v. United States, 149 U.S. 698, 717 (1893)).
84. Id.
85. See Letter from Justice Harlan to his son, James (Jan. 21, 1883) (unpublished manuscript, available in John Marshall Harlan Papers, Library of Congress).
86. Id.
87. For a general discussion of the Asian Exclusion cases, see Harold Hongju Koh, Bitter Fruit of the Asian Immigration Cases, 6 Const 69 (1994).
88. 130 U.S. 581, 609 (1889).
89. Id. at 595.
90. Id. at 606.
91. 149 U.S. 698 (1893).
92. See id. at 728-32. Harlan was in Paris when Fong Yue Ting was argued. See id. at 698 (noting that case was argued on May 10, 1893); 149 U.S. iii n.1 ("Mr. Justice Harlan, having been appointed an Arbitrator on the part of the United States in the Behring Sea Fur-Seal arbitration in Paris, heard argument for the last time, this term, on Monday, December 5, 1892, and left for Paris soon after."); Yarbrough, supra note 34, at 18-88.
93. The United States imposed a general registration requirement on all resident aliens only in 1940. See Alien Registration Act of 1940, ch. 439, 54 Stat. 670 (June 28, 1940).
94. Justice Harlan relied most plainly on the merits of Fong Yue Ting in his opinions in Yamataya v. Fisher and Lem Moon Sing. See Yamataya v. Fisher, 189 U.S. 86, 97, 100-01 (1902) (Harlan, J.) (reiving on Fong Yue Ting for principle that race-based exclusion is constitutional, and that judicial review of executive action may be sharply curtailed); Lem Moon Sing v. United States, 158 U.S. 538, 544-46 (1894) (Harlan, J.) (discussing Fong Yue Ting at length with approval). Chief Justice Fuller's dissent in Wong Kim Ark, which Justice Harlan joined, also relied heavily on racist language from Fong Yue Ting as grounds for denying citizenship to persons of Chinese descent born in the United States. See United States v. Wong Kim Ark, 169 U.S. 649, 731-32 (1898); see also La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1889) (Harlan, J.) (citing Fong Yue Ting); ICC v. Brimson, 154 U.S. 447, 488 (1894) (Harlan, J.) (citing Fong Yue Ting).
95. See Liu Hop Fong v. United States, 209 U.S. 453 (1908) (Day, J., for a unanimous Court) (holding that evidence showed that the Chinese appellant was a student, and thus eligible to enter); Tom Hong v. United States, 193 U.S. 517, 522 (1904) (Day, J., for a unanimous Court) (finding that evidence showed Chinese were merchants, and thus eligible to enter). But see Quock Ting v. United States, 140 U.S. 417, 419 (1891) (Field, J., joined by seven other justices including Harlan, J.) (affirming rejection by trial court of uncontradicted testimony that petitioner was born in the United States).
96. Harlan joined a decision holding that a statutory requirement of obtaining an immigration certificate from the Chinese government did not apply to a merchant resident in the United States who left only briefly. Lau Ow Bew v. United States, 144 U.S. 47, 64 (1892) (Fuller, C.J., for a unanimous Court). He also joined a unanimous judgment that wives and children of eligible classes of Chinese immigrants could enter based on the entry certificate of their husband or father, a critical holding because spouses and children were ineligible for entry certificates in their own names. See United States v. Mrs. Gue Lim, 176 U.S. 459, 467-68 (1900) (Peckham, J.); see also Chew Heong v. United States, 112 U.S. 536, 560 (1884) (Harlan, J.) (holding that statute requiring Chinese re-entry permit would not be applied to Chinese person who was out of the country when the law was passed).
97. In Wong Wing v. United States, 163 U.S. 228, 237 (1896), the Court held as follows: No limits can be put by the courts upon the power of congress to protect, by summary methods, the country from the advent of aliens whose race or habits render them undesirable as citizens, or to expel them if they have already found their way into our land, and unlawfully remain therein. But to declare unlawful residence within the country to be an infamous crime, punishable by deprivation of liberty and properly, would be to pass out of the sphere of constitutional legislation, unless provision were made that the fact of guilt should first be established by a judicial trial. Id.
98. 180 U.S. 486 (1901) (Shiras, J., for a unanimous Court).
99. See Civil Rights Act of 1870, ch. 114, § 16, 16 Stat. 140, 144 (1869-71) ("[A]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory of the United States to . . . give evidence . . . .") (codified at 42 U.S.C. § 1981).
100. See Li Sing, 180 U.S. at 493-94; see also Ah How v. United States, 193 U.S. 65, 76 (1904) (Holmes, J., for a majority of seven, including Harlan, J.) (holding that appellants, Chinese residents of the United States, were properly required to bear the burden of proving their right to be in the United States); Lee Lung v. Patterson, 186 U.S. 168, 175-76 (1902) (McKenna, J., for a majority of six including Harlan, J.) (upholding administrative discretion to exclude Chinese immigrants, despite their possession of admission certificates required by statute); Lee Gon Yung v. United States, 185 U.S. 306, 307 (1902) (upholding regulations of Chinese in-transit through United States); Fok Young Yo v. United States, 185 U.S. 296, 305 (1902) (Fuller, C.J., for a majority of seven including Harlan, J.) (same); United States v. Lee Yen Tal, 185 U.S. 213, 222-23 (1902) (Harlan, J.) (holding that a certain statutory provision governing deportation of Chinese was not repealed by subsequent treaty); Wan Shing v. United States, 140 U.S. 424, 428 (1891) (Field, J., for a unanimous Court) (holding that Chinese temporarily absent from United States required certificate for re-entry).
101. 158 U.S. 538 (1895).
102. See id. at 549-50.
103. See id. at 546-48.
104. See United States v. Ju Toy, 198 U.S. 253, 262 (1905) (Holmes, J., for a majority of six, including Harlan, J.); United States v. Sing Tuck, 194 U.S. 161, 164 (1904) (Holmes, J., for a majority of seven including Harlan, J.); Chin Bak Kan v. United States, 186 U.S. 193, 200 (1902) (Fuller, C.J., for a unanimous Court).
105. See Sing Tuck, 194 U.S. at 177 (Brewer, J., dissenting).
106. See id. at 177-78. In Chin Yow v. United States, 208 U.S. 8, 11 (1908), Justice Holmes, writing for a unanimous Court, granted a writ of habeas corpus based on allegations that a Chinese person in exclusion proceedings was denied a fair opportunity to obtain witnesses and otherwise establish his citizenship. Justice Brewer concurred in the result only. Id. at 13. For a description of the experience of Chinese immigrants with federal immigration authorities, see Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (1995).
107. See Landon v. Placensia, 459 U.S. 21, 32 (1982) (citing, inter alia, Kwong Hai Chew v. Colding, 344 U.S. 590 (1953)).
108. 189 U.S. 86 (1902).
109. The case was heard in 1903; it took the United States another four years to impose a blanket exclusion of Japanese through the so-called "Gentlemen's Agreement" See Hing, supra note 50, at 207-12 (reprinting portions of Gentlemen's Agreement).
110. Yamataya, 189 U.S. at 100.
111. Id. at 101.
112. Id. at 102.
113. See, e.g., Kotasz v. INS, 31 F.3d 847, 850 n.2 (9th Cir. 1994) ("It is well established that aliens have a Fifth Amendment due process right to a full and fair hearing in deportation proceedings. If the alien does not speak English fluently, the presence of a competent interpreter is critical to the fairness of a hearing.") (citations omitted); Haitian Refugee Ctr., Inc. v. Nelson, 872 F.2d 1555, 1562 (11th Cir. 1989) (noting constitutional right to an interpreter), aff'd on other grounds sub nom. McNory v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991); Niarchos v. INS, 393 F.2d 509, 510 (7th Cir. 1968) (noting constitutional right to an interpreter).
114. 124 U.S. 621 (1888).
115. See id. at 634-35. Professor Hudson Janisch offers some details about Jung Ah Lung and his co-petitioner: The petitioners spoke perfect English and were positively identified by white friends and teachers at Rev. Mr. Gibson's mission as Sunday school scholars and active members of the mission church. They could demonstrate an intimate knowledge not only of San Francisco but also of New York. The records of the custom house showed that certificates bad been issued to them and they fitted the description in every particular. There could be no doubt whatsoever that they were who they claimed to be. Hudson N. Janisch, The Chinese, The Courts and the Constitution: A Study of the Legal Issues Raised by Chinese Immigration to the United States, 1850-1902, at 673 (1971) (unpublished J.S.D. dissertation, University of Chicago) (on file with author).
116. Jung Ah Lung, 124 U.S. at 639 (Harlan, J., dissenting).
117. It may even be that Harlan's votes in Yamataya and Jung Ah Lung were uninfluenced by the racist sentiments that his words suggest Yet, a Chinese litigant's doubt about Harlan's impartiality would be supported by at least modern notions of judicial ethics. As Justice Anthony Kennedy wrote as a Ninth Circuit judge, even the "slightest indication" of "racial bias" is enough in many cases to require recusal of a judge. United States v. Conforte, 624 F.2d 869, 881 (9th Or. 1980); see also Berger v. United States, 255 U.S. 22, 35 (1921) (finding that evidence of judge's statements of bias against a particular ethnic group required recusal); United States v. Thompson, 483 F.2d 527, 530 (3d Cir. 1973) (Adams, J., dissenting) (arguing that "a bent against orientals" would require recusal); cf. Tumey v. Ohio, 273 U.S. 510, 523 (1927) (holding that due process prohibits conviction based on a trial presided over by a biased judge). See generally Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv. L. Rev. 736, 756-57 (1973) (discussing recusal based on ethnic or racial bias).
118. If Asian Americans were to vote, Justice David Brewer might well win the title of "the great dissenter." Professor J. Gordon Hylton reports that Brewer sided with the Asian party in 18 of 23 cases that came before the Court during his tenure; he was part of a majority in only six of those decisions. See J. Gordon Hylton, The Judge Who Abstained in Plessy v. Ferguson: Justice David Brewer and the Problem of Race, 61 Miss. L.J. 315, 317 (1991). He also dissented at a higher rate than any other colleague on the Court, including Harlan. See id. at 319. Plessy is a 7 to 1 decision because Brewer did not participate in the case; a child's death kept him out of Washington on the day the Court heard argument See id. at 315, 341-43. His sympathy towards Asians might suggest that this default makes him the Pete Best of the Supreme Court; if he had participated in Plessy, he may have helped Harlan write a better opinion or himself written one for the ages. Professor Hylton suggests this view is wrong; Brewer's record in cases involving African Americans was much less consistent than it was with Asians. Although Brewer was marginally better than the Court as a whole, see id. at 321 & n.22, he also wrote or joined several decisions upholding segregation or other discrimination against African Americans, including Berea College v. Kentucky, 211 U.S. 45 (1908), where Brewer upheld the conviction of a college that had educated African Americans and whites together in violation of state law. Far from being the real great dissenter, then, he was merely the anti-Harlan. How disappointingly ironic that each judge passionately opposed discrimination against one racial group, but had great difficulty even recognizing discrimination against another. For a biography of Brewer, see Michael J. Brodhead, David J. Brewer The Life of A Supreme Court Justice, 1837-1910 (1994). See also Owen M. Fiss, David J. Brewer: The Judge as Missionary, in The Fields and the Law (1986).
119. If Asian Americans were to vote, Justice David Brewer might well win the title of "the great dissenter." Professor J. Gordon Hylton reports that Brewer sided with the Asian party in 18 of 23 cases that came before the Court during his tenure; he was part of a majority in only six of those decisions. See J. Gordon Hylton, The Judge Who Abstained in Plessy v. Ferguson: Justice David Brewer and the Problem of Race, 61 Miss. L.J. 315, 317 (1991). He also dissented at a higher rate than any other colleague on the Court, including Harlan. See id. at 319. Plessy is a 7 to 1 decision because Brewer did not participate in the case; a child's death kept him out of Washington on the day the Court heard argument See id. at 315, 341-43. His sympathy towards Asians might suggest that this default makes him the Pete Best of the Supreme Court; if he had participated in Plessy, he may have helped Harlan write a better opinion or himself written one for the ages. Professor Hylton suggests this view is wrong; Brewer's record in cases involving African Americans was much less consistent than it was with Asians. Although Brewer was marginally better than the Court as a whole, see id. at 321 & n.22, he also wrote or joined several decisions upholding segregation or other discrimination against African Americans, including Berea College v. Kentucky, 211 U.S. 45 (1908), where Brewer upheld the conviction of a college that had educated African Americans and whites together in violation of state law. Far from being the real great dissenter, then, he was merely the anti-Harlan. How disappointingly ironic that each judge passionately opposed discrimination against one racial group, but had great difficulty even recognizing discrimination against another. For a biography of Brewer, see Michael J. Brodhead, David J. Brewer The Life of A Supreme Court Justice, 1837-1910 (1994). See also Owen M. Fiss, David J. Brewer: The Judge as Missionary, in The Fields and the Law (1986).
120. If Asian Americans were to vote, Justice David Brewer might well win the title of "the great dissenter." Professor J. Gordon Hylton reports that Brewer sided with the Asian party in 18 of 23 cases that came before the Court during his tenure; he was part of a majority in only six of those decisions. See J. Gordon Hylton, The Judge Who Abstained in Plessy v. Ferguson: Justice David Brewer and the Problem of Race, 61 Miss. L.J. 315, 317 (1991). He also dissented at a higher rate than any other colleague on the Court, including Harlan. See id. at 319. Plessy is a 7 to 1 decision because Brewer did not participate in the case; a child's death kept him out of Washington on the day the Court heard argument See id. at 315, 341-43. His sympathy towards Asians might suggest that this default makes him the Pete Best of the Supreme Court; if he had participated in Plessy, he may have helped Harlan write a better opinion or himself written one for the ages. Professor Hylton suggests this view is wrong; Brewer's record in cases involving African Americans was much less consistent than it was with Asians. Although Brewer was marginally better than the Court as a whole, see id. at 321 & n.22, he also wrote or joined several decisions upholding segregation or other discrimination against African Americans, including Berea College v. Kentucky, 211 U.S. 45 (1908), where Brewer upheld the conviction of a college that had educated African Americans and whites together in violation of state law. Far from being the real great dissenter, then, he was merely the anti-Harlan. How disappointingly ironic that each judge passionately opposed discrimination against one racial group, but had great difficulty even recognizing discrimination against another. For a biography of Brewer, see Michael J. Brodhead, David J. Brewer The Life of A Supreme Court Justice, 1837-1910 (1994). See also Owen M. Fiss, David J. Brewer: The Judge as Missionary, in The Fields and the Law (1986).
121. Hadley Arkes, The Shadow of Natural Rights, or Guide from the Perplexed, 86 Mich. L. Rev. 1492, 1519 (1988) (book review).
122. All native-bom African Americans were made citizens by virtue of the Fourteenth Amendment in 1868. Few Africans entered as immigrants until recent years. Cf. Bill Ong Hing, Immigration Policies: Messages of Exclusion to African Americans, 37 How. LJ. 237, 239 (1994) ("Before 1965, Africans represented less than 1% of the total immigrant population.").
123. 60 U.S. (19 How.) 393 (1856) (holding that descendants of slaves could never become citizens of the United States).
124. It is no coincidence that the United States in Wong Kim Ark relied on Dred Scott See Brief for the United States at 15-16, 25-26, Wong Kim Ark (No. 95-904) (arguing that Dred Scott correctly set forth the legal underpinnings of national citizenship), reprinted in 14 Landmark Briefs, supra note 5, at 18-19, 28-29; Brief for the United States on Reargument at 18, United States v. Wong Kim Ark, 169 U.S. 649 (1898) (No. 96-449) (relying on Dred Scott to explain distinction between state and national citizenship), reprinted in 14 Landmark Briefs, supra note 5, at 69.
125. See Pub. L. No. 104-59, § 205(d), 109 Stat. 568 (1995) (repealing provisions mandating 55 mile-per-hour speed limit).
126. U.S. Const amend. XVIII ("[T]he manufacture, sale, or transportation of intoxicating liquors within . . . the United States . . . is hereby prohibited,"), repealed by U.S. Const. amend. XXI.
127. Of special note is Neil Gotanda, "Other Non-Whites" in American Legal History: A Review of Justice at War, 85 Colum. L. Rev. 1186, 1189 & n.11, 1190 (1985) (book review) (discussing Harlan's work in Plessy and Wong Kim Ark). See also Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 34 & n.152 (1994) (noting Harlan's characterization of Chinese as perpetual foreigners) ; Thomas Wuil Joo, New "Conspiracy Theory " of the Fourteenth Amendment: Nineteenth Century Chinese Civil Rights Cases and the Development of Substantive Due Process Jurisprudence, 29 U.S.F. L. Rev. 353, 354 & n.11, 368 & n.114, 387-S8 (1995) (pointing out problematic language in Plessy dissent); Leti Volpp, (Mis)identifying Culture: Asian Women and the "Cultural Defense," 17 Harv. Women's L.J. 57, 66 n.43 (1994) (citing Harlan's perception of Asians as "foreign"); Jerry Kang, Note, Racial Violence Against Asian Americans, 106 Harv. L. Rev. 1926, 1937 n.69 (1993) (quoting Harlan's dissent in Plessy).
128. Of special note is Neil Gotanda, "Other Non-Whites" in American Legal History: A Review of Justice at War, 85 Colum. L. Rev. 1186, 1189 & n.11, 1190 (1985) (book review) (discussing Harlan's work in Plessy and Wong Kim Ark). See also Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 34 & n.152 (1994) (noting Harlan's characterization of Chinese as perpetual foreigners) ; Thomas Wuil Joo, New "Conspiracy Theory " of the Fourteenth Amendment: Nineteenth Century Chinese Civil Rights Cases and the Development of Substantive Due Process Jurisprudence, 29 U.S.F. L. Rev. 353, 354 & n.11, 368 & n.114, 387-S8 (1995) (pointing out problematic language in Plessy dissent); Leti Volpp, (Mis)identifying Culture: Asian Women and the "Cultural Defense," 17 Harv. Women's L.J. 57, 66 n.43 (1994) (citing Harlan's perception of Asians as "foreign"); Jerry Kang, Note, Racial Violence Against Asian Americans, 106 Harv. L. Rev. 1926, 1937 n.69 (1993) (quoting Harlan's dissent in Plessy).
129. Of special note is Neil Gotanda, "Other Non-Whites" in American Legal History: A Review of Justice at War, 85 Colum. L. Rev. 1186, 1189 & n.11, 1190 (1985) (book review) (discussing Harlan's work in Plessy and Wong Kim Ark). See also Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 34 & n.152 (1994) (noting Harlan's characterization of Chinese as perpetual foreigners) ; Thomas Wuil Joo, New "Conspiracy Theory " of the Fourteenth Amendment: Nineteenth Century Chinese Civil Rights Cases and the Development of Substantive Due Process Jurisprudence, 29 U.S.F. L. Rev. 353, 354 & n.11, 368 & n.114, 387-S8 (1995) (pointing out problematic language in Plessy dissent); Leti Volpp, (Mis)identifying Culture: Asian Women and the "Cultural Defense," 17 Harv. Women's L.J. 57, 66 n.43 (1994) (citing Harlan's perception of Asians as "foreign"); Jerry Kang, Note, Racial Violence Against Asian Americans, 106 Harv. L. Rev. 1926, 1937 n.69 (1993) (quoting Harlan's dissent in Plessy).
130. Of special note is Neil Gotanda, "Other Non-Whites" in American Legal History: A Review of Justice at War, 85 Colum. L. Rev. 1186, 1189 & n.11, 1190 (1985) (book review) (discussing Harlan's work in Plessy and Wong Kim Ark). See also Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 34 & n.152 (1994) (noting Harlan's characterization of Chinese as perpetual foreigners) ; Thomas Wuil Joo, New "Conspiracy Theory " of the Fourteenth Amendment: Nineteenth Century Chinese Civil Rights Cases and the Development of Substantive Due Process Jurisprudence, 29 U.S.F. L. Rev. 353, 354 & n.11, 368 & n.114, 387-S8 (1995) (pointing out problematic language in Plessy dissent); Leti Volpp, (Mis)identifying Culture: Asian Women and the "Cultural Defense," 17 Harv. Women's L.J. 57, 66 n.43 (1994) (citing Harlan's perception of Asians as "foreign"); Jerry Kang, Note, Racial Violence Against Asian Americans, 106 Harv. L. Rev. 1926, 1937 n.69 (1993) (quoting Harlan's dissent in Plessy).
131. Of special note is Neil Gotanda, "Other Non-Whites" in American Legal History: A Review of Justice at War, 85 Colum. L. Rev. 1186, 1189 & n.11, 1190 (1985) (book review) (discussing Harlan's work in Plessy and Wong Kim Ark). See also Pat K. Chew, Asian Americans: The "Reticent" Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 34 & n.152 (1994) (noting Harlan's characterization of Chinese as perpetual foreigners) ; Thomas Wuil Joo, New "Conspiracy Theory " of the Fourteenth Amendment: Nineteenth Century Chinese Civil Rights Cases and the Development of Substantive Due Process Jurisprudence, 29 U.S.F. L. Rev. 353, 354 & n.11, 368 & n.114, 387-S8 (1995) (pointing out problematic language in Plessy dissent); Leti Volpp, (Mis)identifying Culture: Asian Women and the "Cultural Defense," 17 Harv. Women's L.J. 57, 66 n.43 (1994) (citing Harlan's perception of Asians as "foreign"); Jerry Kang, Note, Racial Violence Against Asian Americans, 106 Harv. L. Rev. 1926, 1937 n.69 (1993) (quoting Harlan's dissent in Plessy).
132. For exceptions, see powell, supra note 29, at 895-96; John R. Kramer, Introduction, 67 Tul. L. Rev. 1725, 1725-26 (1993) (noting inconsistency of seeking rights for Plessy while seemingly approving discrimination against Chinese). See also Herbert Hovenkamp, Book Review, 45 J. Legal Educ. 610, 612 (1995) (reviewing Tinsley E. Yarbrough, Judicial Enigma: The First Justice Harlan (1995)) (observing that "[h]istory provides no reason for viewing Harlan as a kind of primordial Earl Warren or Thurgood Marshall"). A valuable recent treatment, which came out while this Article was in the final stages of editing, is Earl M Maltz, Only Partially Colorblind: John Marshall Harlan's View of Race and the Constitution, 12 Ga. St U. L. Rev. 973 (1996).
133. For exceptions, see powell, supra note 29, at 895-96; John R. Kramer, Introduction, 67 Tul. L. Rev. 1725, 1725-26 (1993) (noting inconsistency of seeking rights for Plessy while seemingly approving discrimination against Chinese). See also Herbert Hovenkamp, Book Review, 45 J. Legal Educ. 610, 612 (1995) (reviewing Tinsley E. Yarbrough, Judicial Enigma: The First Justice Harlan (1995)) (observing that "[h]istory provides no reason for viewing Harlan as a kind of primordial Earl Warren or Thurgood Marshall"). A valuable recent treatment, which came out while this Article was in the final stages of editing, is Earl M Maltz, Only Partially Colorblind: John Marshall Harlan's View of Race and the Constitution, 12 Ga. St U. L. Rev. 973 (1996).
134. For exceptions, see powell, supra note 29, at 895-96; John R. Kramer, Introduction, 67 Tul. L. Rev. 1725, 1725-26 (1993) (noting inconsistency of seeking rights for Plessy while seemingly approving discrimination against Chinese). See also Herbert Hovenkamp, Book Review, 45 J. Legal Educ. 610, 612 (1995) (reviewing Tinsley E. Yarbrough, Judicial Enigma: The First Justice Harlan (1995)) (observing that "[h]istory provides no reason for viewing Harlan as a kind of primordial Earl Warren or Thurgood Marshall"). A valuable recent treatment, which came out while this Article was in the final stages of editing, is Earl M Maltz, Only Partially Colorblind: John Marshall Harlan's View of Race and the Constitution, 12 Ga. St U. L. Rev. 973 (1996).
135. For exceptions, see powell, supra note 29, at 895-96; John R. Kramer, Introduction, 67 Tul. L. Rev. 1725, 1725-26 (1993) (noting inconsistency of seeking rights for Plessy while seemingly approving discrimination against Chinese). See also Herbert Hovenkamp, Book Review, 45 J. Legal Educ. 610, 612 (1995) (reviewing Tinsley E. Yarbrough, Judicial Enigma: The First Justice Harlan (1995)) (observing that "[h]istory provides no reason for viewing Harlan as a kind of primordial Earl Warren or Thurgood Marshall"). A valuable recent treatment, which came out while this Article was in the final stages of editing, is Earl M Maltz, Only Partially Colorblind: John Marshall Harlan's View of Race and the Constitution, 12 Ga. St U. L. Rev. 973 (1996).
136. There is more criticism of his record with regard to African Americans. See, e.g., Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2134-35 (1995) (Ginsburg, J., joined by Breyer, J., dissenting) (observing that Harlan's Plessy dissent contained language indicating support of white supremacy with regard to African Americans) ; Derrick Bell, Race, Racism and American Law 537-39 (3d ed. 1992) (noting that Harlan wrote and joined decisions applying Plessy). But if Harlan was ahead of his time with regard to African Americans, it is only a limited criticism that he was not perfect.
137. See E. Barrett Prettyman, Jr., Making the Rights Decisions, Wash. Post, Jan. 24, 1993, Book World, at 8.
138. For at least five decades, academics have measured the profession's treatment of Justice Harlan by examining the inclusion and editing decisions of law school casebook editors. See Richard Watt & Richard Orlikoff, The Coming Vindication of Mr. Justice Harlan, 44 Ill. L. Rev. 13, 14 & n.7 (1949) (noting that Harlan had been "slighted by the compilers of casebooks"); see also Aleinikoff, supra note 3, at 966 (noting that "several casebooks delete" what Aleinikoff believes is "crucial language"); Arkes, supra note 96, at 1518-19 (in review of a constitutional law casebook, noting that "the editors neglect[ed] to reproduce . . . [a] telling section in Harlan's opinion").
139. But see Daniel Farber, William Eskridge & Philip Frickey, Constitutional Law: Themes For The Constitution's Third Century (1993) (in which Plessy is not a principal case).
140. See Daan Braveman, William Banks & Rodney Smolla, Constitutional Law: Structure And Rights In Our Federal System 920-21 (2d ed. 1991); Paul Brest & Sanford Levinson, Processes Of Constitutional Dedsionmaking 247-49 (3d ed. 1992); William Cohen & Jonathan Varat, Constitutional Law 724-25 (9th ed. 1991); Gerald Gunther, Constitutional Law 647-48 (12th ed. 1991); William B. Lockhart, Yale Kamisar, Jesse Choper & Steven Shiffrin, Constitutional Law 1228 (7th ed. 1991); Norman Redlich, Bernard Schwartz & John Attanasio, Constitutional Law 574-76 (2d ed. 1989); Ronald Rotunda, Modern Constitutional Law 486 (3d ed. 1993); Geoffrey R Stone, Louis Seidman, Cass Sunstein & Mark Tushnet, Constitutional Law 489-90 (2d ed. 1991); see also Jerome A. Barron, C. Thomas Dienes, Wayne McCormack & Martin Redish, Constitutional Law: Principles and Policy 595-96 (4th ed. 1992) (omitting Harlan's Chinese discussion, but only briefly excerpting the dissent); David Crump, Eugene Gressman & David Day, Cases And Materials On Constitutional Law 637-38 (2d ed. 1993) (omitting Harlan's Chinese discussion, but quoting only five sentences from the dissent).
141. See Daan Braveman, William Banks & Rodney Smolla, Constitutional Law: Structure And Rights In Our Federal System 920-21 (2d ed. 1991); Paul Brest & Sanford Levinson, Processes Of Constitutional Dedsionmaking 247-49 (3d ed. 1992); William Cohen & Jonathan Varat, Constitutional Law 724-25 (9th ed. 1991); Gerald Gunther, Constitutional Law 647-48 (12th ed. 1991); William B. Lockhart, Yale Kamisar, Jesse Choper & Steven Shiffrin, Constitutional Law 1228 (7th ed. 1991); Norman Redlich, Bernard Schwartz & John Attanasio, Constitutional Law 574-76 (2d ed. 1989); Ronald Rotunda, Modern Constitutional Law 486 (3d ed. 1993); Geoffrey R Stone, Louis Seidman, Cass Sunstein & Mark Tushnet, Constitutional Law 489-90 (2d ed. 1991); see also Jerome A. Barron, C. Thomas Dienes, Wayne McCormack & Martin Redish, Constitutional Law: Principles and Policy 595-96 (4th ed. 1992) (omitting Harlan's Chinese discussion, but only briefly excerpting the dissent); David Crump, Eugene Gressman & David Day, Cases And Materials On Constitutional Law 637-38 (2d ed. 1993) (omitting Harlan's Chinese discussion, but quoting only five sentences from the dissent).
142. See Daan Braveman, William Banks & Rodney Smolla, Constitutional Law: Structure And Rights In Our Federal System 920-21 (2d ed. 1991); Paul Brest & Sanford Levinson, Processes Of Constitutional Dedsionmaking 247-49 (3d ed. 1992); William Cohen & Jonathan Varat, Constitutional Law 724-25 (9th ed. 1991); Gerald Gunther, Constitutional Law 647-48 (12th ed. 1991); William B. Lockhart, Yale Kamisar, Jesse Choper & Steven Shiffrin, Constitutional Law 1228 (7th ed. 1991); Norman Redlich, Bernard Schwartz & John Attanasio, Constitutional Law 574-76 (2d ed. 1989); Ronald Rotunda, Modern Constitutional Law 486 (3d ed. 1993); Geoffrey R Stone, Louis Seidman, Cass Sunstein & Mark Tushnet, Constitutional Law 489-90 (2d ed. 1991); see also Jerome A. Barron, C. Thomas Dienes, Wayne McCormack & Martin Redish, Constitutional Law: Principles and Policy 595-96 (4th ed. 1992) (omitting Harlan's Chinese discussion, but only briefly excerpting the dissent); David Crump, Eugene Gressman & David Day, Cases And Materials On Constitutional Law 637-38 (2d ed. 1993) (omitting Harlan's Chinese discussion, but quoting only five sentences from the dissent).
143. See Daan Braveman, William Banks & Rodney Smolla, Constitutional Law: Structure And Rights In Our Federal System 920-21 (2d ed. 1991); Paul Brest & Sanford Levinson, Processes Of Constitutional Dedsionmaking 247-49 (3d ed. 1992); William Cohen & Jonathan Varat, Constitutional Law 724-25 (9th ed. 1991); Gerald Gunther, Constitutional Law 647-48 (12th ed. 1991); William B. Lockhart, Yale Kamisar, Jesse Choper & Steven Shiffrin, Constitutional Law 1228 (7th ed. 1991); Norman Redlich, Bernard Schwartz & John Attanasio, Constitutional Law 574-76 (2d ed. 1989); Ronald Rotunda, Modern Constitutional Law 486 (3d ed. 1993); Geoffrey R Stone, Louis Seidman, Cass Sunstein & Mark Tushnet, Constitutional Law 489-90 (2d ed. 1991); see also Jerome A. Barron, C. Thomas Dienes, Wayne McCormack & Martin Redish, Constitutional Law: Principles and Policy 595-96 (4th ed. 1992) (omitting Harlan's Chinese discussion, but only briefly excerpting the dissent); David Crump, Eugene Gressman & David Day, Cases And Materials On Constitutional Law 637-38 (2d ed. 1993) (omitting Harlan's Chinese discussion, but quoting only five sentences from the dissent).
144. See Daan Braveman, William Banks & Rodney Smolla, Constitutional Law: Structure And Rights In Our Federal System 920-21 (2d ed. 1991); Paul Brest & Sanford Levinson, Processes Of Constitutional Dedsionmaking 247-49 (3d ed. 1992); William Cohen & Jonathan Varat, Constitutional Law 724-25 (9th ed. 1991); Gerald Gunther, Constitutional Law 647-48 (12th ed. 1991); William B. Lockhart, Yale Kamisar, Jesse Choper & Steven Shiffrin, Constitutional Law 1228 (7th ed. 1991); Norman Redlich, Bernard Schwartz & John Attanasio, Constitutional Law 574-76 (2d ed. 1989); Ronald Rotunda, Modern Constitutional Law 486 (3d ed. 1993); Geoffrey R Stone, Louis Seidman, Cass Sunstein & Mark Tushnet, Constitutional Law 489-90 (2d ed. 1991); see also Jerome A. Barron, C. Thomas Dienes, Wayne McCormack & Martin Redish, Constitutional Law: Principles and Policy 595-96 (4th ed. 1992) (omitting Harlan's Chinese discussion, but only briefly excerpting the dissent); David Crump, Eugene Gressman & David Day, Cases And Materials On Constitutional Law 637-38 (2d ed. 1993) (omitting Harlan's Chinese discussion, but quoting only five sentences from the dissent).
145. See Daan Braveman, William Banks & Rodney Smolla, Constitutional Law: Structure And Rights In Our Federal System 920-21 (2d ed. 1991); Paul Brest & Sanford Levinson, Processes Of Constitutional Dedsionmaking 247-49 (3d ed. 1992); William Cohen & Jonathan Varat, Constitutional Law 724-25 (9th ed. 1991); Gerald Gunther, Constitutional Law 647-48 (12th ed. 1991); William B. Lockhart, Yale Kamisar, Jesse Choper & Steven Shiffrin, Constitutional Law 1228 (7th ed. 1991); Norman Redlich, Bernard Schwartz & John Attanasio, Constitutional Law 574-76 (2d ed. 1989); Ronald Rotunda, Modern Constitutional Law 486 (3d ed. 1993); Geoffrey R Stone, Louis Seidman, Cass Sunstein & Mark Tushnet, Constitutional Law 489-90 (2d ed. 1991); see also Jerome A. Barron, C. Thomas Dienes, Wayne McCormack & Martin Redish, Constitutional Law: Principles and Policy 595-96 (4th ed. 1992) (omitting Harlan's Chinese discussion, but only briefly excerpting the dissent); David Crump, Eugene Gressman & David Day, Cases And Materials On Constitutional Law 637-38 (2d ed. 1993) (omitting Harlan's Chinese discussion, but quoting only five sentences from the dissent).
146. See Daan Braveman, William Banks & Rodney Smolla, Constitutional Law: Structure And Rights In Our Federal System 920-21 (2d ed. 1991); Paul Brest & Sanford Levinson, Processes Of Constitutional Dedsionmaking 247-49 (3d ed. 1992); William Cohen & Jonathan Varat, Constitutional Law 724-25 (9th ed. 1991); Gerald Gunther, Constitutional Law 647-48 (12th ed. 1991); William B. Lockhart, Yale Kamisar, Jesse Choper & Steven Shiffrin, Constitutional Law 1228 (7th ed. 1991); Norman Redlich, Bernard Schwartz & John Attanasio, Constitutional Law 574-76 (2d ed. 1989); Ronald Rotunda, Modern Constitutional Law 486 (3d ed. 1993); Geoffrey R Stone, Louis Seidman, Cass Sunstein & Mark Tushnet, Constitutional Law 489-90 (2d ed. 1991); see also Jerome A. Barron, C. Thomas Dienes, Wayne McCormack & Martin Redish, Constitutional Law: Principles and Policy 595-96 (4th ed. 1992) (omitting Harlan's Chinese discussion, but only briefly excerpting the dissent); David Crump, Eugene Gressman & David Day, Cases And Materials On Constitutional Law 637-38 (2d ed. 1993) (omitting Harlan's Chinese discussion, but quoting only five sentences from the dissent).
147. See Daan Braveman, William Banks & Rodney Smolla, Constitutional Law: Structure And Rights In Our Federal System 920-21 (2d ed. 1991); Paul Brest & Sanford Levinson, Processes Of Constitutional Dedsionmaking 247-49 (3d ed. 1992); William Cohen & Jonathan Varat, Constitutional Law 724-25 (9th ed. 1991); Gerald Gunther, Constitutional Law 647-48 (12th ed. 1991); William B. Lockhart, Yale Kamisar, Jesse Choper & Steven Shiffrin, Constitutional Law 1228 (7th ed. 1991); Norman Redlich, Bernard Schwartz & John Attanasio, Constitutional Law 574-76 (2d ed. 1989); Ronald Rotunda, Modern Constitutional Law 486 (3d ed. 1993); Geoffrey R Stone, Louis Seidman, Cass Sunstein & Mark Tushnet, Constitutional Law 489-90 (2d ed. 1991); see also Jerome A. Barron, C. Thomas Dienes, Wayne McCormack & Martin Redish, Constitutional Law: Principles and Policy 595-96 (4th ed. 1992) (omitting Harlan's Chinese discussion, but only briefly excerpting the dissent); David Crump, Eugene Gressman & David Day, Cases And Materials On Constitutional Law 637-38 (2d ed. 1993) (omitting Harlan's Chinese discussion, but quoting only five sentences from the dissent).
148. See Daan Braveman, William Banks & Rodney Smolla, Constitutional Law: Structure And Rights In Our Federal System 920-21 (2d ed. 1991); Paul Brest & Sanford Levinson, Processes Of Constitutional Dedsionmaking 247-49 (3d ed. 1992); William Cohen & Jonathan Varat, Constitutional Law 724-25 (9th ed. 1991); Gerald Gunther, Constitutional Law 647-48 (12th ed. 1991); William B. Lockhart, Yale Kamisar, Jesse Choper & Steven Shiffrin, Constitutional Law 1228 (7th ed. 1991); Norman Redlich, Bernard Schwartz & John Attanasio, Constitutional Law 574-76 (2d ed. 1989); Ronald Rotunda, Modern Constitutional Law 486 (3d ed. 1993); Geoffrey R Stone, Louis Seidman, Cass Sunstein & Mark Tushnet, Constitutional Law 489-90 (2d ed. 1991); see also Jerome A. Barron, C. Thomas Dienes, Wayne McCormack & Martin Redish, Constitutional Law: Principles and Policy 595-96 (4th ed. 1992) (omitting Harlan's Chinese discussion, but only briefly excerpting the dissent); David Crump, Eugene Gressman & David Day, Cases And Materials On Constitutional Law 637-38 (2d ed. 1993) (omitting Harlan's Chinese discussion, but quoting only five sentences from the dissent).
149. See Daan Braveman, William Banks & Rodney Smolla, Constitutional Law: Structure And Rights In Our Federal System 920-21 (2d ed. 1991); Paul Brest & Sanford Levinson, Processes Of Constitutional Dedsionmaking 247-49 (3d ed. 1992); William Cohen & Jonathan Varat, Constitutional Law 724-25 (9th ed. 1991); Gerald Gunther, Constitutional Law 647-48 (12th ed. 1991); William B. Lockhart, Yale Kamisar, Jesse Choper & Steven Shiffrin, Constitutional Law 1228 (7th ed. 1991); Norman Redlich, Bernard Schwartz & John Attanasio, Constitutional Law 574-76 (2d ed. 1989); Ronald Rotunda, Modern Constitutional Law 486 (3d ed. 1993); Geoffrey R Stone, Louis Seidman, Cass Sunstein & Mark Tushnet, Constitutional Law 489-90 (2d ed. 1991); see also Jerome A. Barron, C. Thomas Dienes, Wayne McCormack & Martin Redish, Constitutional Law: Principles and Policy 595-96 (4th ed. 1992) (omitting Harlan's Chinese discussion, but only briefly excerpting the dissent); David Crump, Eugene Gressman & David Day, Cases And Materials On Constitutional Law 637-38 (2d ed. 1993) (omitting Harlan's Chinese discussion, but quoting only five sentences from the dissent).
150. See Leslie Bender & Daan Braveman, Power, Privilege & Law: A Civil Rights Reader 194 (1995) (quoting Harlan's Chinese discussion). The authors describe the book as "part of an ongoing conversation about power, privilege, and law," and used the materials in courses in "Civil Rights, Contemporary Legal Theories, Social Justice and Law, Jurisprudence, first year and upper-level Constitutional Law courses, and Lawyer's Role." Id. at v.
151. See, e.g., The Struggles for Racial Equality 31-34 (Henry Steele Commager ed., 1967) (reprinting portions of the Plessy dissent but omitting the offending language); 5 The Supreme Court in American Life: The Fuller Court 1888-1910, at 148-63 (Howard B. Furer ed., 1986) [hereinafter Supreme Court in American Life] (omitting discussion of Chinese in extensive excerpt from Harlan dissent). Yarbrough, supra note 34, at 190-92, by contrast, makes no effort to sugarcoat Harlan's antipathy towards Chinese, observing that Harlan had a "spotty record in racial discrimination and related cases not involving the former slaves." Id. at 191. In Alan Barth, Prophets with Honor: Great Dissents and Great Dissenters in the Supreme Court 197-206 (1975), the language is not discussed in the text, but the entire dissent is reprinted in an appendix.
152. See, e.g., The Struggles for Racial Equality 31-34 (Henry Steele Commager ed., 1967) (reprinting portions of the Plessy dissent but omitting the offending language); 5 The Supreme Court in American Life: The Fuller Court 1888-1910, at 148-63 (Howard B. Furer ed., 1986) [hereinafter Supreme Court in American Life] (omitting discussion of Chinese in extensive excerpt from Harlan dissent). Yarbrough, supra note 34, at 190-92, by contrast, makes no effort to sugarcoat Harlan's antipathy towards Chinese, observing that Harlan had a "spotty record in racial discrimination and related cases not involving the former slaves." Id. at 191. In Alan Barth, Prophets with Honor: Great Dissents and Great Dissenters in the Supreme Court 197-206 (1975), the language is not discussed in the text, but the entire dissent is reprinted in an appendix.
153. See, e.g., The Struggles for Racial Equality 31-34 (Henry Steele Commager ed., 1967) (reprinting portions of the Plessy dissent but omitting the offending language); 5 The Supreme Court in American Life: The Fuller Court 1888-1910, at 148-63 (Howard B. Furer ed., 1986) [hereinafter Supreme Court in American Life] (omitting discussion of Chinese in extensive excerpt from Harlan dissent). Yarbrough, supra note 34, at 190-92, by contrast, makes no effort to sugarcoat Harlan's antipathy towards Chinese, observing that Harlan had a "spotty record in racial discrimination and related cases not involving the former slaves." Id. at 191. In Alan Barth, Prophets with Honor: Great Dissents and Great Dissenters in the Supreme Court 197-206 (1975), the language is not discussed in the text, but the entire dissent is reprinted in an appendix.
154. Supreme Court in American Life, supra note 110, at 138.
155. Henry J. Abraham, John Marshall Harlan: A Justice Neglected, 41 Va. L. Rev. 871 (1955).
156. "John Harlan's strong words in [Plessy and the Civil Rights Cases] ensured a revival of interest in him among historians and others when the Supreme Court delivered Brown v. Board of Education in 1954 and declared segregation in the public schools to be unconstitutional." Linda Przybyszewski, The Evolution of John Marshall Harlan the Elder, in Great Justices of the U.S. Supreme Court 101 (William Pederson & Norman Provizer eds., 1993) (footnotes omitted); see also White, supra note 6, at 144 ("The dramatic turnaround in attitudes towards racial equality in the 1950s and 1960s seems to have been the chief catalyst in augmenting Harlan's reputation.").
157. Abraham, supra note 112, at 880 (emphasis added); see also Henry Abraham, John Marshall Harlan: The Justice and the Man, 46 Ky. L.J. 448, 466 (1958) (offering similar observations).
158. 169 U.S. 649, 705 (1898) (Fuller, C.J., joined by Harlan, J., dissenting).
159. 124 U.S. 621, 638-39 (1888) (Harlan, J., dissenting).
160. Other post-Brown commentators cited Harlan's treatment of Chinese litigants approvingly. See Florian Bartosic, The Constitution, Civil Liberties and John Marshall Harlan, 46 Ky. L.J. 407, 435 (1958) ("When the civil liberties of Chinese aliens were imperiled, Justice Harlan entered the lists with his usual vigor and devotion."); Alan F. Westin, John Marshall Harlan and the Constitutional Rights of Negroes: The Transformation of a Southerner, 66 Yale L.J. 637, 696 (1957) ("Harlan could be found demanding that the Court do substantive justice, whether the injured party was a Negro . . . , a liquor dealer, a resident Chinese alien, a patentee, a merchant seaman, the holder of a government bond, or an Indian.") (footnotes omitted). More recently, a Harlan biographer suggested that "Harlan and the Court were . . . concerned about discrimination on the West Coast against the Chinese," Beth, supra note 34, at 236. Strictly speaking, this may have been true, in that Harlan voted with the majority in Yick Wo, and dissented in Baldwin v. Franks, as discussed supra, note 49. Yet these claims are dubious to the extent that they suggest a general sympathy for the rights of Chinese. Similarly, Professor Lofgren offers an implausibly benign explanation for the passage: it simply supported Harlan's argument that integrated riding would not promote "social equality." See Lofgren, supra note 1, at 194.
161. Other post-Brown commentators cited Harlan's treatment of Chinese litigants approvingly. See Florian Bartosic, The Constitution, Civil Liberties and John Marshall Harlan, 46 Ky. L.J. 407, 435 (1958) ("When the civil liberties of Chinese aliens were imperiled, Justice Harlan entered the lists with his usual vigor and devotion."); Alan F. Westin, John Marshall Harlan and the Constitutional Rights of Negroes: The Transformation of a Southerner, 66 Yale L.J. 637, 696 (1957) ("Harlan could be found demanding that the Court do substantive justice, whether the injured party was a Negro . . . , a liquor dealer, a resident Chinese alien, a patentee, a merchant seaman, the holder of a government bond, or an Indian.") (footnotes omitted). More recently, a Harlan biographer suggested that "Harlan and the Court were . . . concerned about discrimination on the West Coast against the Chinese," Beth, supra note 34, at 236. Strictly speaking, this may have been true, in that Harlan voted with the majority in Yick Wo, and dissented in Baldwin v. Franks, as discussed supra, note 49. Yet these claims are dubious to the extent that they suggest a general sympathy for the rights of Chinese. Similarly, Professor Lofgren offers an implausibly benign explanation for the passage: it simply supported Harlan's argument that integrated riding would not promote "social equality." See Lofgren, supra note 1, at 194.
162. White, supra note 6, at 139.
163. Id. at 143.
164. See Aleinikoff, supra note 3.
165. Id. at 969.
166. See id. at 966.
167. Id. at 972 n.48 (quoting Plessy v . Ferguson, 163 U.S. 537, 559 (1896)).
168. Sunstein, supra note 20, at 2435 (footnotes omitted).
169. Professor Sunstein also pointed out that "the Civil War Amendments were targeted at caste legislation, that is, at specific laws that embodied discrimination and in this way helped to create caste. This is what Justice Harlan had in mind in Plessy." Id. at 2436. Sunstein's failure to explain why Harlan's discussion of Chinese is not inconsistent with the anti-caste principle makes his invocation of Harlan's Plessy dissent as a source of special authority seem romantic.
170. See Fullilove v. Klutznick, 448 U.S. 448, 522-23 (1980) (Stewart, J., joined by Rehnquist, J., dissenting).
171. For example, the dissent cites Yick Wo v. Hopkins, 118 U.S. 356 (1880), which involved discrimination against Chinese, and Hernandez v. Texas, 347 U.S. 475 (1954), which involved discrimination against Americans of Mexican heritage. Fullilove, 448 U.S. at 526.
172. Fullilove, 448 U.S. at 524.
173. Eastland & Bennett, supra note 9, at 82.
174. See also Ralph A. Rossum, Justice Harlan's Constitution, The Weekly Standard, May 31, 1996, at 32. Rossum writes: Harlan grounded his opinion firmly on the principle that all men are created equal. Because of this equality, he insisted that no man should be discriminated against or preferred because of his race and that no man should have his claims to justice evaluated on the basis of his race. Id.
175. Plessyv. Ferguson, 163 U.S. 537, 559 (1896) (emphasis added).
176. Id. at 562 (emphasis added).
177. Id. at 563.
178. Id. at 560-61.
179. See Minor v. Happersett, 88 U.S. 162 (1874) (holding that female litigant was a citizen of the United States, but was nevertheless properly denied the right to vote).
180. Cf U.S. Const amend. XXIV, § 1 (1964) ("The right of citizens of the United States to vote [for federal offices] shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.").
181. Arkes, supra note 96, at 1519. Another analyst may have been making the same point when he observed that "the Plessy rule was not objectively wrong." Francis J. Mootz, III, The Ontological Basis of Legal Hermeneutics: A Proposed Model of Inquiry Based on the Work of Gadamer, Habermas and Ricoeur, 68 B.U. L. Rev. 523, 547 (1988). Similarly, Owen Fiss wrote that Harlan "accepted the framework of the majority, merely applying their principles differently." Fiss, supra note 39, at 360. Thus, the scope of his argument was limited. As Fiss explains: Many have taken the Court's decision on Brown v. Board of Education as a vindication of Harlan's position in Plessy, and then have read Earl Warren's opinion back into Harlan's dissent But Harlan worked within the contractatrian tradition and analyzed the case in terms of liberty, while for Warren the fundamental issue was one of equality. Id. at 365.
182. See Williamson v. Lee Optical, 348 U.S. 482 (1955) (applying deferential standard of equal protection review to economic classification).
183. See New Orleans v. Dukes, 427 U.S. 297 (1976) (per curiam) (applying deferential standard of equal protection review to economic classification).
184. Random House Dictionary Of The English Language 406 (2d ed. 1987).
185. Webster's New Twentieth Century Dictionary 358 (2d ed. 1983) (emphasis added).
186. Plessyv. Ferguson, 163 U.S. 539, 560 (1896).
187. Harlan wrote that the Reconstruction Amendments declared, in legal effect, this Court has . . . said, "that the law in the states shall be the same for the black as for the white, that all persons, whether colored or white, shall stand equal before the laws of the states; and in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color." Id. at 556.
188. 169 U.S. 649 (1898).
189. See supra notes 51-61 and accompanying text (discussing Harlan's argument in Wong Kim Ark that American-born Chinese were not citizens of the United States). Perhaps Harlan's service in the Civil War, and the experience of having an African American half-brother, contributed to a more empathetic appreciation of the situation of African Americans.
190. See Andrew Kull, The Color-Blind Constitution (1992) (tracing history of color-blind concept). However, Kull credits Harlan with crystallizing the phrase "color-blind," and with writing a "luminous opinion [giving] lasting form to an idea that might not otherwise have survived him." Id. at 119.
191. C. Vann Woodward, for example, noted that the dissent "echoed many of Tourgee's ringing phrases." Woodward, supra note 1, at 166; see also Epps, supra note 18, at 442 n.282 (noting that Harlan was inspired by Tourgee brief); John Minor Wisdom, The Advance of Civil Rights, 29 U.S.F. L. Rev. 633, 633 (1995) (noting that Harlan paraphrased parts of the Tourgee brief). Examination of the brief bears out these observations, which imply no impropriety, but may suggest somewhat less brilliance as an author. See Brief for Plaintiff in Error, Plessy v. Ferguson, 163 U.S. 537 (1896) (No. 210), reprinted in 13 Landmark Briefs, supra note 5, at 27. Owen Fiss concluded that it was Tourgee, not Harlan, who advanced a "visionary. . . argument" and offered "a new understanding of American citizenship." Fiss, supra note 39, at 360. Among the arguments in the Tourgee brief: "Justice is pictured blind and her daughter, the Law, ought at least to be color-blind." Brief for Plaintiff in Error at 19, Plessy (No. 210), reprinted in 13 Landmark Briefs, supra note 5, at 46. Tourgee also introduced the anti-caste idea: "The experience of the civilized world proves that it is not a matter of public health or morals, but simply a matter intended to reintroduce the caste-like ideal on which slavery rested." Brief for Plaintiff in Error at 26, Plessy (No. 210), reprinted in 13 Landmark Briefs, supra note 5, at 53. For other discussions of caste and its elimination by the Reconstruction Amendments, see Brief for Plaintiff in Error at 11, 14, 35-36, Plessy (No. 210), reprinted in 13 Landmark Briefs, supra note 5, at 38, 41, 62-63. Harlan is honored for perceiving that segregation was discrimination where the majority could not See Plessy, 163 U.S. at 557 ("Everyone knows that the statute in question had its origin in the purpose, not so much as to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons."). This idea, too, came from the Tourgee Brief: The court will take notice of a fact inseparable from human nature, that, when the law distinguishes between the civil rights or privileges of two classes, it always is, and always must be, to the detriment of the weaker class or race. A dominant race or class does not demand or enact class-distinctions for the sake of the weaker but for their own pleasure or enjoyment. . . The object of such a law is simply to debase and distinguish against the inferior race. . . . Its object is to separate the Negroes from the whites in public conveyances for the gratification and recognition of the sentiment of white superiority and white supremacy of right and power. Brief for Plaintiff in Error at 26, Plessy (No. 210), reprinted in 13 Landmark Briefs, supra note 5, at 53. Harlan's listing of the absurd kinds of degradation which Jim Crow could justify, Plessy, 163 U.S. at 557-58, was inspired by the Tourgee Brief, which asked: Why may [the state] not require all colored people to walk on one side of the street and the whites on the other? Why may it not require every white man's house to be painted white and every colored man's black? Why may it not require every white man's vehicle to be of one color and compel the colored citizen to use one of a different color on the highway? Brief for Plaintiff in Error at 29, Plessy (No. 210), reprinted in 13 Landmark Briefs, supra note 5, at 56.
192. C. Vann Woodward, for example, noted that the dissent "echoed many of Tourgee's ringing phrases." Woodward, supra note 1, at 166; see also Epps, supra note 18, at 442 n.282 (noting that Harlan was inspired by Tourgee brief); John Minor Wisdom, The Advance of Civil Rights, 29 U.S.F. L. Rev. 633, 633 (1995) (noting that Harlan paraphrased parts of the Tourgee brief). Examination of the brief bears out these observations, which imply no impropriety, but may suggest somewhat less brilliance as an author. See Brief for Plaintiff in Error, Plessy v. Ferguson, 163 U.S. 537 (1896) (No. 210), reprinted in 13 Landmark Briefs, supra note 5, at 27. Owen Fiss concluded that it was Tourgee, not Harlan, who advanced a "visionary. . . argument" and offered "a new understanding of American citizenship." Fiss, supra note 39, at 360. Among the arguments in the Tourgee brief: "Justice is pictured blind and her daughter, the Law, ought at least to be color-blind." Brief for Plaintiff in Error at 19, Plessy (No. 210), reprinted in 13 Landmark Briefs, supra note 5, at 46. Tourgee also introduced the anti-caste idea: "The experience of the civilized world proves that it is not a matter of public health or morals, but simply a matter intended to reintroduce the caste-like ideal on which slavery rested." Brief for Plaintiff in Error at 26, Plessy (No. 210), reprinted in 13 Landmark Briefs, supra note 5, at 53. For other discussions of caste and its elimination by the Reconstruction Amendments, see Brief for Plaintiff in Error at 11, 14, 35-36, Plessy (No. 210), reprinted in 13 Landmark Briefs, supra note 5, at 38, 41, 62-63. Harlan is honored for perceiving that segregation was discrimination where the majority could not See Plessy, 163 U.S. at 557 ("Everyone knows that the statute in question had its origin in the purpose, not so much as to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons."). This idea, too, came from the Tourgee Brief: The court will take notice of a fact inseparable from human nature, that, when the law distinguishes between the civil rights or privileges of two classes, it always is, and always must be, to the detriment of the weaker class or race. A dominant race or class does not demand or enact class-distinctions for the sake of the weaker but for their own pleasure or enjoyment. . . The object of such a law is simply to debase and distinguish against the inferior race. . . . Its object is to separate the Negroes from the whites in public conveyances for the gratification and recognition of the sentiment of white superiority and white supremacy of right and power. Brief for Plaintiff in Error at 26, Plessy (No. 210), reprinted in 13 Landmark Briefs, supra note 5, at 53. Harlan's listing of the absurd kinds of degradation which Jim Crow could justify, Plessy, 163 U.S. at 557-58, was inspired by the Tourgee Brief, which asked: Why may [the state] not require all colored people to walk on one side of the street and the whites on the other? Why may it not require every white man's house to be painted white and every colored man's black? Why may it not require every white man's vehicle to be of one color and compel the colored citizen to use one of a different color on the highway? Brief for Plaintiff in Error at 29, Plessy (No. 210), reprinted in 13 Landmark Briefs, supra note 5, at 56.
193. Plessy, 163 U.S. at 561.
194. One of the African American lawyers who argued Brown before the Supreme Court made this point with eloquence in the last moments of his presentation: Now, I've finished my legal argument, but I want to say this before I sit down. In this Court, the house of the law, the Negro today stands outside, and he knocks on the door, over and over again, he knocks on the door and cries out, "Let me in, let me in, for I too have helped build this house." The Solicitor General's Office, Justice Frankfurter, and Civil Rights Litigation, 1946-1960: An Oral History, 100 Harv. L. Rev. 817, 820 (1987) (interview of Philip Elman by Norman Silber).
195. See, e.g., Stephen Steinberg, The Ethnic Myth: Race, Ethnicity, and Class In America 268, 295 (1989). Steinberg writes: Of course, it is ironic that blacks, through their protest movement, helped to lower immigration barriers against nationalities that previously were racially ineligible, when those same groups are then used to suggest that black economic problems cannot be blamed on "race". . . . We need manpower policies that will assess immigration policy with respect to native workers, and minority workers in particular. Id; see also Michael Lind, Editorial, Liberals Duck Immigration Debate, N.Y. Times, Sept 7, 1995, at A27 ("[T]he black working poor have suffered again from competition . . . with Latin Americans and Asians. . . . [M]any employers discriminate against African American [s] . . . in favor of immigrants. . . . Why have liberals been silent about the economic effects of immigration on ... the working poor, and black workers in particular?"). It may be no coincidence that the late Barbara Jordan, an African American, was named chair of the Federal Commission on Immigration Reform. See Robert Pear, Change of Policy on U.S. Immigrants is Urged by Panel, N.Y. Times, June 5, 1995, at Al; Roberto Suro, Fortress America? Suddenly, the Golden Door is Closing, Wash. Post, Nov. 6, 1994, at C3 ("Immigration advocates complain that Jordan, perhaps unwittingly, provided white liberals, African Americans and assorted democrats all the political cover they needed to take up a restrictionist agenda."). If someone intended to create political divisions between people of color, it would be hard to think of a better way to do it For additional discussions of this problem, see Lisa C. Ikemoto, Traces of the Master Narrative in the Story of African American/Korean American Conflict: How We Constructed "Los Angeles,* 66 S. Cal. L. Rev. 1581 (1993); Jack Miles, Blacks vs. Browns, in Arguing Immigration supra, at 101 (Nicolaus Mills ed., 1994); Toni Morrison, On the Backs of Blacks, in Arguing Immigration 97; Reginald Robinson, The Other Against Itself": Deconstructing the Violent Discourse Between Korean and African Americans, 67 S. Cal. L. Rev. 15 (1993) .
196. See, e.g., Stephen Steinberg, The Ethnic Myth: Race, Ethnicity, and Class In America 268, 295 (1989). Steinberg writes: Of course, it is ironic that blacks, through their protest movement, helped to lower immigration barriers against nationalities that previously were racially ineligible, when those same groups are then used to suggest that black economic problems cannot be blamed on "race". . . . We need manpower policies that will assess immigration policy with respect to native workers, and minority workers in particular. Id; see also Michael Lind, Editorial, Liberals Duck Immigration Debate, N.Y. Times, Sept 7, 1995, at A27 ("[T]he black working poor have suffered again from competition . . . with Latin Americans and Asians. . . . [M]any employers discriminate against African American [s] . . . in favor of immigrants. . . . Why have liberals been silent about the economic effects of immigration on ... the working poor, and black workers in particular?"). It may be no coincidence that the late Barbara Jordan, an African American, was named chair of the Federal Commission on Immigration Reform. See Robert Pear, Change of Policy on U.S. Immigrants is Urged by Panel, N.Y. Times, June 5, 1995, at Al; Roberto Suro, Fortress America? Suddenly, the Golden Door is Closing, Wash. Post, Nov. 6, 1994, at C3 ("Immigration advocates complain that Jordan, perhaps unwittingly, provided white liberals, African Americans and assorted democrats all the political cover they needed to take up a restrictionist agenda."). If someone intended to create political divisions between people of color, it would be hard to think of a better way to do it For additional discussions of this problem, see Lisa C. Ikemoto, Traces of the Master Narrative in the Story of African American/Korean American Conflict: How We Constructed "Los Angeles,* 66 S. Cal. L. Rev. 1581 (1993); Jack Miles, Blacks vs. Browns, in Arguing Immigration supra, at 101 (Nicolaus Mills ed., 1994); Toni Morrison, On the Backs of Blacks, in Arguing Immigration 97; Reginald Robinson, The Other Against Itself": Deconstructing the Violent Discourse Between Korean and African Americans, 67 S. Cal. L. Rev. 15 (1993) .
197. See, e.g., Stephen Steinberg, The Ethnic Myth: Race, Ethnicity, and Class In America 268, 295 (1989). Steinberg writes: Of course, it is ironic that blacks, through their protest movement, helped to lower immigration barriers against nationalities that previously were racially ineligible, when those same groups are then used to suggest that black economic problems cannot be blamed on "race". . . . We need manpower policies that will assess immigration policy with respect to native workers, and minority workers in particular. Id; see also Michael Lind, Editorial, Liberals Duck Immigration Debate, N.Y. Times, Sept 7, 1995, at A27 ("[T]he black working poor have suffered again from competition . . . with Latin Americans and Asians. . . . [M]any employers discriminate against African American [s] . . . in favor of immigrants. . . . Why have liberals been silent about the economic effects of immigration on ... the working poor, and black workers in particular?"). It may be no coincidence that the late Barbara Jordan, an African American, was named chair of the Federal Commission on Immigration Reform. See Robert Pear, Change of Policy on U.S. Immigrants is Urged by Panel, N.Y. Times, June 5, 1995, at Al; Roberto Suro, Fortress America? Suddenly, the Golden Door is Closing, Wash. Post, Nov. 6, 1994, at C3 ("Immigration advocates complain that Jordan, perhaps unwittingly, provided white liberals, African Americans and assorted democrats all the political cover they needed to take up a restrictionist agenda."). If someone intended to create political divisions between people of color, it would be hard to think of a better way to do it For additional discussions of this problem, see Lisa C. Ikemoto, Traces of the Master Narrative in the Story of African American/Korean American Conflict: How We Constructed "Los Angeles,* 66 S. Cal. L. Rev. 1581 (1993); Jack Miles, Blacks vs. Browns, in Arguing Immigration supra, at 101 (Nicolaus Mills ed., 1994); Toni Morrison, On the Backs of Blacks, in Arguing Immigration 97; Reginald Robinson, The Other Against Itself": Deconstructing the Violent Discourse Between Korean and African Americans, 67 S. Cal. L. Rev. 15 (1993) .
198. See, e.g., Stephen Steinberg, The Ethnic Myth: Race, Ethnicity, and Class In America 268, 295 (1989). Steinberg writes: Of course, it is ironic that blacks, through their protest movement, helped to lower immigration barriers against nationalities that previously were racially ineligible, when those same groups are then used to suggest that black economic problems cannot be blamed on "race". . . . We need manpower policies that will assess immigration policy with respect to native workers, and minority workers in particular. Id; see also Michael Lind, Editorial, Liberals Duck Immigration Debate, N.Y. Times, Sept 7, 1995, at A27 ("[T]he black working poor have suffered again from competition . . . with Latin Americans and Asians. . . . [M]any employers discriminate against African American [s] . . . in favor of immigrants. . . . Why have liberals been silent about the economic effects of immigration on ... the working poor, and black workers in particular?"). It may be no coincidence that the late Barbara Jordan, an African American, was named chair of the Federal Commission on Immigration Reform. See Robert Pear, Change of Policy on U.S. Immigrants is Urged by Panel, N.Y. Times, June 5, 1995, at Al; Roberto Suro, Fortress America? Suddenly, the Golden Door is Closing, Wash. Post, Nov. 6, 1994, at C3 ("Immigration advocates complain that Jordan, perhaps unwittingly, provided white liberals, African Americans and assorted democrats all the political cover they needed to take up a restrictionist agenda."). If someone intended to create political divisions between people of color, it would be hard to think of a better way to do it For additional discussions of this problem, see Lisa C. Ikemoto, Traces of the Master Narrative in the Story of African American/Korean American Conflict: How We Constructed "Los Angeles,* 66 S. Cal. L. Rev. 1581 (1993); Jack Miles, Blacks vs. Browns, in Arguing Immigration supra, at 101 (Nicolaus Mills ed., 1994); Toni Morrison, On the Backs of Blacks, in Arguing Immigration 97; Reginald Robinson, The Other Against Itself": Deconstructing the Violent Discourse Between Korean and African Americans, 67 S. Cal. L. Rev. 15 (1993) .
199. See, e.g., Stephen Steinberg, The Ethnic Myth: Race, Ethnicity, and Class In America 268, 295 (1989). Steinberg writes: Of course, it is ironic that blacks, through their protest movement, helped to lower immigration barriers against nationalities that previously were racially ineligible, when those same groups are then used to suggest that black economic problems cannot be blamed on "race". . . . We need manpower policies that will assess immigration policy with respect to native workers, and minority workers in particular. Id; see also Michael Lind, Editorial, Liberals Duck Immigration Debate, N.Y. Times, Sept 7, 1995, at A27 ("[T]he black working poor have suffered again from competition . . . with Latin Americans and Asians. . . . [M]any employers discriminate against African American [s] . . . in favor of immigrants. . . . Why have liberals been silent about the economic effects of immigration on ... the working poor, and black workers in particular?"). It may be no coincidence that the late Barbara Jordan, an African American, was named chair of the Federal Commission on Immigration Reform. See Robert Pear, Change of Policy on U.S. Immigrants is Urged by Panel, N.Y. Times, June 5, 1995, at Al; Roberto Suro, Fortress America? Suddenly, the Golden Door is Closing, Wash. Post, Nov. 6, 1994, at C3 ("Immigration advocates complain that Jordan, perhaps unwittingly, provided white liberals, African Americans and assorted democrats all the political cover they needed to take up a restrictionist agenda."). If someone intended to create political divisions between people of color, it would be hard to think of a better way to do it For additional discussions of this problem, see Lisa C. Ikemoto, Traces of the Master Narrative in the Story of African American/Korean American Conflict: How We Constructed "Los Angeles,* 66 S. Cal. L. Rev. 1581 (1993); Jack Miles, Blacks vs. Browns, in Arguing Immigration supra, at 101 (Nicolaus Mills ed., 1994); Toni Morrison, On the Backs of Blacks, in Arguing Immigration 97; Reginald Robinson, The Other Against Itself": Deconstructing the Violent Discourse Between Korean and African Americans, 67 S. Cal. L. Rev. 15 (1993) .
200. See, e.g., Stephen Steinberg, The Ethnic Myth: Race, Ethnicity, and Class In America 268, 295 (1989). Steinberg writes: Of course, it is ironic that blacks, through their protest movement, helped to lower immigration barriers against nationalities that previously were racially ineligible, when those same groups are then used to suggest that black economic problems cannot be blamed on "race". . . . We need manpower policies that will assess immigration policy with respect to native workers, and minority workers in particular. Id; see also Michael Lind, Editorial, Liberals Duck Immigration Debate, N.Y. Times, Sept 7, 1995, at A27 ("[T]he black working poor have suffered again from competition . . . with Latin Americans and Asians. . . . [M]any employers discriminate against African American [s] . . . in favor of immigrants. . . . Why have liberals been silent about the economic effects of immigration on ... the working poor, and black workers in particular?"). It may be no coincidence that the late Barbara Jordan, an African American, was named chair of the Federal Commission on Immigration Reform. See Robert Pear, Change of Policy on U.S. Immigrants is Urged by Panel, N.Y. Times, June 5, 1995, at Al; Roberto Suro, Fortress America? Suddenly, the Golden Door is Closing, Wash. Post, Nov. 6, 1994, at C3 ("Immigration advocates complain that Jordan, perhaps unwittingly, provided white liberals, African Americans and assorted democrats all the political cover they needed to take up a restrictionist agenda."). If someone intended to create political divisions between people of color, it would be hard to think of a better way to do it For additional discussions of this problem, see Lisa C. Ikemoto, Traces of the Master Narrative in the Story of African American/Korean American Conflict: How We Constructed "Los Angeles,* 66 S. Cal. L. Rev. 1581 (1993); Jack Miles, Blacks vs. Browns, in Arguing Immigration supra, at 101 (Nicolaus Mills ed., 1994); Toni Morrison, On the Backs of Blacks, in Arguing Immigration 97; Reginald Robinson, The Other Against Itself": Deconstructing the Violent Discourse Between Korean and African Americans, 67 S. Cal. L. Rev. 15 (1993) .
201. See, e.g., Stephen Steinberg, The Ethnic Myth: Race, Ethnicity, and Class In America 268, 295 (1989). Steinberg writes: Of course, it is ironic that blacks, through their protest movement, helped to lower immigration barriers against nationalities that previously were racially ineligible, when those same groups are then used to suggest that black economic problems cannot be blamed on "race". . . . We need manpower policies that will assess immigration policy with respect to native workers, and minority workers in particular. Id; see also Michael Lind, Editorial, Liberals Duck Immigration Debate, N.Y. Times, Sept 7, 1995, at A27 ("[T]he black working poor have suffered again from competition . . . with Latin Americans and Asians. . . . [M]any employers discriminate against African American [s] . . . in favor of immigrants. . . . Why have liberals been silent about the economic effects of immigration on ... the working poor, and black workers in particular?"). It may be no coincidence that the late Barbara Jordan, an African American, was named chair of the Federal Commission on Immigration Reform. See Robert Pear, Change of Policy on U.S. Immigrants is Urged by Panel, N.Y. Times, June 5, 1995, at Al; Roberto Suro, Fortress America? Suddenly, the Golden Door is Closing, Wash. Post, Nov. 6, 1994, at C3 ("Immigration advocates complain that Jordan, perhaps unwittingly, provided white liberals, African Americans and assorted democrats all the political cover they needed to take up a restrictionist agenda."). If someone intended to create political divisions between people of color, it would be hard to think of a better way to do it For additional discussions of this problem, see Lisa C. Ikemoto, Traces of the Master Narrative in the Story of African American/Korean American Conflict: How We Constructed "Los Angeles,* 66 S. Cal. L. Rev. 1581 (1993); Jack Miles, Blacks vs. Browns, in Arguing Immigration supra, at 101 (Nicolaus Mills ed., 1994); Toni Morrison, On the Backs of Blacks, in Arguing Immigration 97; Reginald Robinson, The Other Against Itself": Deconstructing the Violent Discourse Between Korean and African Americans, 67 S. Cal. L. Rev. 15 (1993) .
202. See, e.g., Stephen Steinberg, The Ethnic Myth: Race, Ethnicity, and Class In America 268, 295 (1989). Steinberg writes: Of course, it is ironic that blacks, through their protest movement, helped to lower immigration barriers against nationalities that previously were racially ineligible, when those same groups are then used to suggest that black economic problems cannot be blamed on "race". . . . We need manpower policies that will assess immigration policy with respect to native workers, and minority workers in particular. Id; see also Michael Lind, Editorial, Liberals Duck Immigration Debate, N.Y. Times, Sept 7, 1995, at A27 ("[T]he black working poor have suffered again from competition . . . with Latin Americans and Asians. . . . [M]any employers discriminate against African American [s] . . . in favor of immigrants. . . . Why have liberals been silent about the economic effects of immigration on ... the working poor, and black workers in particular?"). It may be no coincidence that the late Barbara Jordan, an African American, was named chair of the Federal Commission on Immigration Reform. See Robert Pear, Change of Policy on U.S. Immigrants is Urged by Panel, N.Y. Times, June 5, 1995, at Al; Roberto Suro, Fortress America? Suddenly, the Golden Door is Closing, Wash.
203. Consequently, some Asian Americans and Latinos perceive the immigration reform movement as an attack on their communities. See, e.g., Bill Ong Hing, Reframing the Immigration Debate: An Overview, in Refraining the Immigration Debate 1 (Bill Ong Hing & Ronald Lee eds., 1996) ("Undoubtedly, in some quarters, the influx of Asian and Pacific immigrants and refugees has contributed to a backlash against immigrants and immigration policies."); Kevin R. Johnson, Fear of an "Alien Nation": Race, Immigration and Immigrants, 7 Stan. L. & Pol'y Rev. 111, 112 (1996) (noting that "some anti-immigrant sentiment in the United States, though clearly not all, is animated by anti-Latino sentiment"); Robert Pear, Clinton Embraces a Proposal to Cut Immigration by a Third, N.Y. Times, June 8, 1995, at B10 (noting Celelia Munoz, deputy vice president of the National Council of La Raza and Karen Narasaki, executive director of the National Asian Pacific Legal Consortium, criticizing immigration reform proposals).
204. Consequently, some Asian Americans and Latinos perceive the immigration reform movement as an attack on their communities. See, e.g., Bill Ong Hing, Reframing the Immigration Debate: An Overview, in Refraining the Immigration Debate 1 (Bill Ong Hing & Ronald Lee eds., 1996) ("Undoubtedly, in some quarters, the influx of Asian and Pacific immigrants and refugees has contributed to a backlash against immigrants and immigration policies."); Kevin R. Johnson, Fear of an "Alien Nation": Race, Immigration and Immigrants, 7 Stan. L. & Pol'y Rev. 111, 112 (1996) (noting that "some anti-immigrant sentiment in the United States, though clearly not all, is animated by anti-Latino sentiment"); Robert Pear, Clinton Embraces a Proposal to Cut Immigration by a Third, N.Y. Times, June 8, 1995, at B10 (noting Celelia Munoz, deputy vice president of the National Council of La Raza and Karen Narasaki, executive director of the National Asian Pacific Legal Consortium, criticizing immigration reform proposals).
205. Consequently, some Asian Americans and Latinos perceive the immigration reform movement as an attack on their communities. See, e.g., Bill Ong Hing, Reframing the Immigration Debate: An Overview, in Refraining the Immigration Debate 1 (Bill Ong Hing & Ronald Lee eds., 1996) ("Undoubtedly, in some quarters, the influx of Asian and Pacific immigrants and refugees has contributed to a backlash against immigrants and immigration policies."); Kevin R. Johnson, Fear of an "Alien Nation": Race, Immigration and Immigrants, 7 Stan. L. & Pol'y Rev. 111, 112 (1996) (noting that "some anti-immigrant sentiment in the United States, though clearly not all, is animated by anti-Latino sentiment"); Robert Pear, Clinton Embraces a Proposal to Cut Immigration by a Third, N.Y. Times, June 8, 1995, at B10 (noting Celelia Munoz, deputy vice president of the National Council of La Raza and Karen Narasaki, executive director of the National Asian Pacific Legal Consortium, criticizing immigration reform proposals).
206. See, e.g., Frank H. Wu, Neither Black nor White: Asian Americans and Affirmative Action, 15 B.C. Third World L.J. 225, 268-69 (1995) (citing testimony of then-Assistant Attorney General for Civil Rights William Bradford Reynolds that "the phenomenon of a 'ceiling' on Asian-American [college] admissions is the inevitable result of the 'floor' that has been built for a variety of other, favored groups"); Laura Kurtzman, Academic Goals at Odds with Community's Long Tradition of Civil Rights Activism, San Jose Mercury News, July 29, 1995, at 1A (quoting Berkeley professor Ronald Takaki as suggesting that Asians were being used by whites to make the case that affirmative action is unfair; noting that Republican California state Senator Tom Campbell criticized affirmative action because it penalized high achieving Asians). Kurtzman also reported that an Asian American Regent at the University of California voted against affirmative action, stating: When you benefit a group of people, you take away rights from somebody else. The blacks and Hispanics have come a long way, and I would say affirmative action has played a part in it But there comes a time when you really don't need it anymore and the program is oppressive to others. Id; see also Clarence Page, Asian Americans Split on Benefits of Racial Policies, Sacramento Bee, May 23, 1995, at B7 ("House speaker Newt Gingrich, for example, has said that 'Asian Americans are facing a very real danger of being discriminated against' because they are becoming overrepresented at prestigious universities that have affirmative-action plans."); cf. Mari J. Matsuda, We Will not be Used, 1 UCLA Asian Am. Pac. Is. L.J. 79, 80 (1993) (pointing out the danger that Asian American situation will be used unfairly to stigmatize other racial groups) .
207. See, e.g., Frank H. Wu, Neither Black nor White: Asian Americans and Affirmative Action, 15 B.C. Third World L.J. 225, 268-69 (1995) (citing testimony of then-Assistant Attorney General for Civil Rights William Bradford Reynolds that "the phenomenon of a 'ceiling' on Asian-American [college] admissions is the inevitable result of the 'floor' that has been built for a variety of other, favored groups"); Laura Kurtzman, Academic Goals at Odds with Community's Long Tradition of Civil Rights Activism, San Jose Mercury News, July 29, 1995, at 1A (quoting Berkeley professor Ronald Takaki as suggesting that Asians were being used by whites to make the case that affirmative action is unfair; noting that Republican California state Senator Tom Campbell criticized affirmative action because it penalized high achieving Asians). Kurtzman also reported that an Asian American Regent at the University of California voted against affirmative action, stating: When you benefit a group of people, you take away rights from somebody else. The blacks and Hispanics have come a long way, and I would say affirmative action has played a part in it But there comes a time when you really don't need it anymore and the program is oppressive to others. Id; see also Clarence Page, Asian Americans Split on Benefits of Racial Policies, Sacramento Bee, May 23, 1995, at B7 ("House speaker Newt Gingrich, for example, has said that 'Asian Americans are facing a very real danger of being discriminated against' because they are becoming overrepresented at prestigious universities that have affirmative-action plans."); cf. Mari J. Matsuda, We Will not be Used, 1 UCLA Asian Am. Pac. Is. L.J. 79, 80 (1993) (pointing out the danger that Asian American situation will be used unfairly to stigmatize other racial groups) .
208. See, e.g., Frank H. Wu, Neither Black nor White: Asian Americans and Affirmative Action, 15 B.C. Third World L.J. 225, 268-69 (1995) (citing testimony of then-Assistant Attorney General for Civil Rights William Bradford Reynolds that "the phenomenon of a 'ceiling' on Asian-American [college] admissions is the inevitable result of the 'floor' that has been built for a variety of other, favored groups"); Laura Kurtzman, Academic Goals at Odds with Community's Long Tradition of Civil Rights Activism, San Jose Mercury News, July 29, 1995, at 1A (quoting Berkeley professor Ronald Takaki as suggesting that Asians were being used by whites to make the case that affirmative action is unfair; noting that Republican California state Senator Tom Campbell criticized affirmative action because it penalized high achieving Asians). Kurtzman also reported that an Asian American Regent at the University of California voted against affirmative action, stating: When you benefit a group of people, you take away rights from somebody else. The blacks and Hispanics have come a long way, and I would say affirmative action has played a part in it But there comes a time when you really don't need it anymore and the program is oppressive to others. Id; see also Clarence Page, Asian Americans Split on Benefits of Racial Policies, Sacramento Bee, May 23, 1995, at B7 ("House speaker Newt Gingrich, for example, has said that 'Asian Americans are facing a very real danger of being discriminated against' because they are becoming overrepresented at prestigious universities that have affirmative-action plans."); cf. Mari J. Matsuda, We Will not be Used, 1 UCLA Asian Am. Pac. Is. L.J. 79, 80 (1993) (pointing out the danger that Asian American situation will be used unfairly to stigmatize other racial groups) .
209. See, e.g., Frank H. Wu, Neither Black nor White: Asian Americans and Affirmative Action, 15 B.C. Third World L.J. 225, 268-69 (1995) (citing testimony of then-Assistant Attorney General for Civil Rights William Bradford Reynolds that "the phenomenon of a 'ceiling' on Asian-American [college] admissions is the inevitable result of the 'floor' that has been built for a variety of other, favored groups"); Laura Kurtzman, Academic Goals at Odds with Community's Long Tradition of Civil Rights Activism, San Jose Mercury News, July 29, 1995, at 1A (quoting Berkeley professor Ronald Takaki as suggesting that Asians were being used by whites to make the case that affirmative action is unfair; noting that Republican California state Senator Tom Campbell criticized affirmative action because it penalized high achieving Asians). Kurtzman also reported that an Asian American Regent at the University of California voted against affirmative action, stating: When you benefit a group of people, you take away rights from somebody else. The blacks and Hispanics have come a long way, and I would say affirmative action has played a part in it But there comes a time when you really don't need it anymore and the program is oppressive to others. Id; see also Clarence Page, Asian Americans Split on Benefits of Racial Policies, Sacramento Bee, May 23, 1995, at B7 ("House speaker Newt Gingrich, for example, has said that 'Asian Americans are facing a very real danger of being discriminated against' because they are becoming overrepresented at prestigious universities that have affirmative-action plans."); cf. Mari J. Matsuda, We Will not be Used, 1 UCLA Asian Am. Pac. Is. L.J. 79, 80 (1993) (pointing out the danger that Asian American situation will be used unfairly to stigmatize other racial groups) .
210. See Rebecca E. Zietlow, Two Wrongs Don't Add up to Rights: The Importance of Preserving Due Process in Light of Recent Welfare Reform Measures, 45 Am. U. L. Rev. 1111, 1113 n.6 (1996) (presenting statistics showing that whites constitute the largest group of welfare recipients); Bob Herbert, In America: Scapegoat Time, N.Y. Times, Nov. 16, 1994, at A19 (noting that about 38% of welfare recipients are black, the same percentage white, and the black proportion has been decreasing over time); Kimberly McLarin, For the Poor, Defining Who Deserves What, N.Y. Times, Sept 17, 1995, § 4, at 1 (noting "welfare queen" stereotype; "black, illiterate and producing babies at an alarming clip," but that in fact "most people on welfare are white - and are either children or elderly"); cf. Rosemary L. Bray, So How Did I Get Here, N.Y. Times, Nov. 8, 1992, § 6, at 35 (objecting to stereotypes of people on welfare).
211. See Rebecca E. Zietlow, Two Wrongs Don't Add up to Rights: The Importance of Preserving Due Process in Light of Recent Welfare Reform Measures, 45 Am. U. L. Rev. 1111, 1113 n.6 (1996) (presenting statistics showing that whites constitute the largest group of welfare recipients); Bob Herbert, In America: Scapegoat Time, N.Y. Times, Nov. 16, 1994, at A19 (noting that about 38% of welfare recipients are black, the same percentage white, and the black proportion has been decreasing over time); Kimberly McLarin, For the Poor, Defining Who Deserves What, N.Y. Times, Sept 17, 1995, § 4, at 1 (noting "welfare queen" stereotype; "black, illiterate and producing babies at an alarming clip," but that in fact "most people on welfare are white - and are either children or elderly"); cf. Rosemary L. Bray, So How Did I Get Here, N.Y. Times, Nov. 8, 1992, § 6, at 35 (objecting to stereotypes of people on welfare).
212. See Rebecca E. Zietlow, Two Wrongs Don't Add up to Rights: The Importance of Preserving Due Process in Light of Recent Welfare Reform Measures, 45 Am. U. L. Rev. 1111, 1113 n.6 (1996) (presenting statistics showing that whites constitute the largest group of welfare recipients); Bob Herbert, In America: Scapegoat Time, N.Y. Times, Nov. 16, 1994, at A19 (noting that about 38% of welfare recipients are black, the same percentage white, and the black proportion has been decreasing over time); Kimberly McLarin, For the Poor, Defining Who Deserves What, N.Y. Times, Sept 17, 1995, § 4, at 1 (noting "welfare queen" stereotype; "black, illiterate and producing babies at an alarming clip," but that in fact "most people on welfare are white - and are either children or elderly"); cf. Rosemary L. Bray, So How Did I Get Here, N.Y. Times, Nov. 8, 1992, § 6, at 35 (objecting to stereotypes of people on welfare).
213. See Rebecca E. Zietlow, Two Wrongs Don't Add up to Rights: The Importance of Preserving Due Process in Light of Recent Welfare Reform Measures, 45 Am. U. L. Rev. 1111, 1113 n.6 (1996) (presenting statistics showing that whites constitute the largest group of welfare recipients); Bob Herbert, In America: Scapegoat Time, N.Y. Times, Nov. 16, 1994, at A19 (noting that about 38% of welfare recipients are black, the same percentage white, and the black proportion has been decreasing over time); Kimberly McLarin, For the Poor, Defining Who Deserves What, N.Y. Times, Sept 17, 1995, § 4, at 1 (noting "welfare queen" stereotype; "black, illiterate and producing babies at an alarming clip," but that in fact "most people on welfare are white - and are either children or elderly"); cf. Rosemary L. Bray, So How Did I Get Here, N.Y. Times, Nov. 8, 1992, § 6, at 35 (objecting to stereotypes of people on welfare).
214. Peter Brimelow, Alien Nation: Common Sense About America's Immigration Disaster 173-75 (1995).
215. Id. at 173. Some of the conflicts between blacks and "new immigrants" are discussed in Peter H. Schuck, The Evolving Civil Rights Movement: Old Civil Rights and New Immigration, Current, Jan. 1994, at 13.
216. See Brimelow, supra note 154, at 123-28. Brimelow's book is trenchantly critiqued in several reviews. See Johnson, supra note 151, at 111; Hiroshi Motomura, Whose Alien Nation, 94 Mich. L. Rev. 1927 (1996) (book review); Peter Schuck, Alien Ruminations, 105 Yale L.J. 1963 (1996) (book review).
217. See Brimelow, supra note 154, at 123-28. Brimelow's book is trenchantly critiqued in several reviews. See Johnson, supra note 151, at 111; Hiroshi Motomura, Whose Alien Nation, 94 Mich. L. Rev. 1927 (1996) (book review); Peter Schuck, Alien Ruminations, 105 Yale L.J. 1963 (1996) (book review).
218. See Brimelow, supra note 154, at 203 ("And what is a 'nation'? It is an ethno-caltural community - an interlacing of ethnicity and culture.").
219. The quota system awarded visas to countries based on their representation in the American population. However, generally, Americans from Asia and Africa were not counted. Accordingly, the system gave strong preferences to northern Europeans, and disadvantaged Africans, Asians, as well as southern and eastern Europeans. For more details about the system, see Edward P. Hutchinson, Legislative History of American Immigration Policy 1798-1965, at 468-74 (1981); id. at 187-96 (discussing 1924 quota law); id. at 303-11 (discussing 1952 amendment); U.S. Dep't of Justice, An Immigrant Nation: United States Regulation of Immigration, 1789-1991 (1991) (offering an historical overview of the immigration system).
220. Senator Allen Ellender could not "understand those who attack our basic law simply because it attempts to continue the cultural heritage, political and social traditions of this Nation." 111 Cong. Rec. 24,772 (1965). Similarly, Senator Spessard Holland "believe[d] that we have the complete right as a nation to safeguard ourselves and our own traditions and our own people." Id. at 24,777. Senator James O. Eastland insisted that the national origins quota system was reasonable because although "it is action which recognizes the differences among the ethnic groups in our population . . . preservation of this new American culture and the fundamental institutions of this Nation can most likely be preserved and strengthened by the preservation of the relative proportions of those different people in our society." Id. at 24,551-52; see also Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration Law: A New Look at the Immigration and Nationality Act of 1965, 75 N.C. L. Rev. 273 (1996).
221. Senators James Eastland, Allen Ellender, Sam Ervin, Jr., Spessard Holland, John McClellan, and Strom Thurmond voted against both the Civil Rights Act of 1964, 110 Cong. Rec. 14,511 (1964), and the Voting Rights Act of 1965, 111 Cong. Rec. 11,751-52 (1965); only Ervin switched sides and voted for the Immigration and Nationality Act Amendments of 1965. Id. at 24,783.
222. In August 1939 Hitler and Stalin concluded a non-aggression pact pursuant to which the Third Reich and the Soviet Union secretly decided which empire would control the independent nations of Estonia, Finland, Lithuania, Latvia, and Poland. See Treaty of Non-Aggression Between Germany and the Union of Soviet Socialist Republics, Aug. 23, 1939, reprinted in Raymond James Sontag & James Stuart Beddie, Nazi-Soviet Relations, 1939-1941, at 76-78 (1948). In June 1941 the Third Reich invaded the USSR, its nominal ally.
223. Pamela Smart was a New Hampshire high school teacher who encouraged her teenage student/lover to kill her husband. See New Hampshire v. Smart, 622 A.2d 1197 (NH. 1993). For additional accounts of the case, see Fox Butterfield, Final Arguments Heard in New Hampshire Trial that Rivals Soap Opera, N.Y. Times, Mar. 21, 1991, at A16; Fox Butterfield, New Hampshire Teacher is Guilty in Murder Plot, N.Y. Times, Mar. 23, 1991, at A6; Teen-ager Sentenced in Love-Triangle Killing, N.Y. Times, Aug. 20, 1992, at A25.
224. Pamela Smart was a New Hampshire high school teacher who encouraged her teenage student/lover to kill her husband. See New Hampshire v. Smart, 622 A.2d 1197 (NH. 1993). For additional accounts of the case, see Fox Butterfield, Final Arguments Heard in New Hampshire Trial that Rivals Soap Opera, N.Y. Times, Mar. 21, 1991, at A16; Fox Butterfield, New Hampshire Teacher is Guilty in Murder Plot, N.Y. Times, Mar. 23, 1991, at A6; Teen-ager Sentenced in Love-Triangle Killing, N.Y. Times, Aug. 20, 1992, at A25.
225. Pamela Smart was a New Hampshire high school teacher who encouraged her teenage student/lover to kill her husband. See New Hampshire v. Smart, 622 A.2d 1197 (NH. 1993). For additional accounts of the case, see Fox Butterfield, Final Arguments Heard in New Hampshire Trial that Rivals Soap Opera, N.Y. Times, Mar. 21, 1991, at A16; Fox Butterfield, New Hampshire Teacher is Guilty in Murder Plot, N.Y. Times, Mar. 23, 1991, at A6; Teen-ager Sentenced in Love-Triangle Killing, N.Y. Times, Aug. 20, 1992, at A25.
226. When the topic is immigration, Asian and Latino immigrants can be cast as foreigners who take jobs from deserving African Americans and other hard-working natives. When the topic is affirmative action or welfare everyone switches sides: lazy, coddled African Americans can be accused of taking all of the good jobs, academic spots, and tax dollars from industrious Cuban and Asian immigrants who legitimately enjoy the fruits of the American dream.
227. None of this is to say that immigration, welfare, and affirmative action reform should not be considered and discussed. But reform would be much more palatable if the appearance that it is driven in large part by race were not so close to the surface.
228. See generally Mary L. Dudziak, Desegregation as Cold War Imperative, 41 Stan. L. Rev. 61 (1988) (observing that by the time of Brown, segregation had significant adverse propaganda effects worldwide).
229. Thus, one prominent scholar wrote: Even at the nadir of fourteenth amendment jurisprudence, an undercurrent of judicial opinion remained true to the promise of equality. Dissenting from the spurious concept of "separate but equal" in Plessy v. Ferguson, the elder Justice Harlan wrote that the Constitution recognizes "no superior, dominant, ruling class of citizens. There is no caste here." Tribe, supra note 22, at 1516; see also Watt & Orlikoff, supra note 106, at 14 ("Fortunately for the cause of civil rights, the Court was not unanimous: Mr. Justice Harlan dissented.").
230. See supra note 113 (explaining how changing racial attitudes in the 1950s and 1960s catapulted Harlan's reputation).
231. Simeon McIntosh, Reading Dred Scott, Plessy and Brown: Toward a Constitutional Hermeneutics, 38 How. L.J. 53, 71 (1994).
232. Dred Scott was a disaster, of course, but it did not create the injustice of slavery. Even if the Court had decided correctly, however, it is unlikely that a mere judicial decree could have directly eliminated slavery, or that the Court could somehow have established a lasting and just political compromise which could have avoided the Civil War and ended slavery.
233. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 863 (1992) (opinion of Kennedy, O'Connor & Souter, JJ.).
234. See, e.g., Robert Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1243 (1993) (arguing for a post-structuralist basis for a distinctive Asian American legal scholarship); Deborah Ramirez, Multicultural Empowerment: It's not Just Black and White Anymore, 47 Stan. L. Rev. 957 (1995); Wu, supra note 152; Alexandra Natapoff, Note, Trouble in Paradise: Equal Protection and the Dilemma of Interminority Group Conflict, 47 Stan. L. Rev. 1059 (1995).
235. See, e.g., Robert Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1243 (1993) (arguing for a post-structuralist basis for a distinctive Asian American legal scholarship); Deborah Ramirez, Multicultural Empowerment: It's not Just Black and White Anymore, 47 Stan. L. Rev. 957 (1995); Wu, supra note 152; Alexandra Natapoff, Note, Trouble in Paradise: Equal Protection and the Dilemma of Interminority Group Conflict, 47 Stan. L. Rev. 1059 (1995).
236. See, e.g., Robert Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1243 (1993) (arguing for a post-structuralist basis for a distinctive Asian American legal scholarship); Deborah Ramirez, Multicultural Empowerment: It's not Just Black and White Anymore, 47 Stan. L. Rev. 957 (1995); Wu, supra note 152; Alexandra Natapoff, Note, Trouble in Paradise: Equal Protection and the Dilemma of Interminority Group Conflict, 47 Stan. L. Rev. 1059 (1995).
237. The most famous example of this is the Kerner Commission's report that "[o]ur Nation is moving toward two societies, one black, one white - separate and unequal." Report Of The National Advisory Commission On Civil Disorders 1 (1968). This idea seems to be expressed by one of the authors discussed herein: "We live in a world of racial inequality. In almost every important category, blacks as a group are worse off than whites." T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 Colum. L. Rev. 1060, 1065-66 (1991).
238. Chris Bjima explores the merits of retaining the black-white paradigm because of its usefulness in illuminating structures of white supremacy. See Chris K Iijima, Deconstruction, Reconstruction and We-Construction: The Politics of Racial Identity and Reflectins on the Critique of the Black/White Paradigm (1996) (unpublished manuscript, on file with the Iowa Law Review).
239. Chris Bjima explores the merits of retaining the black-white paradigm because of its usefulness in illuminating structures of white supremacy. See Chris K Iijima, Deconstruction, Reconstruction and We-Construction: The Politics of Racial Identity and Reflectins on the Critique of the Black/White Paradigm (1996) (unpublished manuscript, on file with the Iowa Law Review).
240. See, e.g., John C. Brittain, Affirmative Action Still Alive but Badly Wounded, in 11 Civil Rights Litigation And Attorney's Fees Annual Handbook 10-11 n.4 (Jules Lobel & Steven Saltzman eds., 1996); Wendy R. Brown, School Desegregation Litigation: Crossroads or Dead End, 37 St Louis U. L.J. 923, 936 (1993); Alan Freeman, Racism, Rights and the Quest for Equality of Opportunity: A Critical Legal Essay, 23 Harv. C.R.-C.L. L. Rev. 295, 356 (1988); David B. Wilkins, Two Paths to the Mountaintop? The Role of Legal Education in Shaping the Values of Black Corporate Lawyers, 45 Stan. L. Rev. 1981, 1999 (1993); Adolphus Levi Williams, Jr., A Critical Analysis of the Bakke Case, 16 S.U. L. Rev. 129, 147 (1989); Paul R. Dimond & Gene Sperling, Of Cultural Determinism and the Limits of the Law, 83 Mich. L. Rev. 1065, 1072 (1985) (book review).
241. See, e.g., John C. Brittain, Affirmative Action Still Alive but Badly Wounded, in 11 Civil Rights Litigation And Attorney's Fees Annual Handbook 10-11 n.4 (Jules Lobel & Steven Saltzman eds., 1996); Wendy R. Brown, School Desegregation Litigation: Crossroads or Dead End, 37 St Louis U. L.J. 923, 936 (1993); Alan Freeman, Racism, Rights and the Quest for Equality of Opportunity: A Critical Legal Essay, 23 Harv. C.R.-C.L. L. Rev. 295, 356 (1988); David B. Wilkins, Two Paths to the Mountaintop? The Role of Legal Education in Shaping the Values of Black Corporate Lawyers, 45 Stan. L. Rev. 1981, 1999 (1993); Adolphus Levi Williams, Jr., A Critical Analysis of the Bakke Case, 16 S.U. L. Rev. 129, 147 (1989); Paul R. Dimond & Gene Sperling, Of Cultural Determinism and the Limits of the Law, 83 Mich. L. Rev. 1065, 1072 (1985) (book review).
242. See, e.g., John C. Brittain, Affirmative Action Still Alive but Badly Wounded, in 11 Civil Rights Litigation And Attorney's Fees Annual Handbook 10-11 n.4 (Jules Lobel & Steven Saltzman eds., 1996); Wendy R. Brown, School Desegregation Litigation: Crossroads or Dead End, 37 St Louis U. L.J. 923, 936 (1993); Alan Freeman, Racism, Rights and the Quest for Equality of Opportunity: A Critical Legal Essay, 23 Harv. C.R.-C.L. L. Rev. 295, 356 (1988); David B. Wilkins, Two Paths to the Mountaintop? The Role of Legal Education in Shaping the Values of Black Corporate Lawyers, 45 Stan. L. Rev. 1981, 1999 (1993); Adolphus Levi Williams, Jr., A Critical Analysis of the Bakke Case, 16 S.U. L. Rev. 129, 147 (1989); Paul R. Dimond & Gene Sperling, Of Cultural Determinism and the Limits of the Law, 83 Mich. L. Rev. 1065, 1072 (1985) (book review).
243. See, e.g., John C. Brittain, Affirmative Action Still Alive but Badly Wounded, in 11 Civil Rights Litigation And Attorney's Fees Annual Handbook 10-11 n.4 (Jules Lobel & Steven Saltzman eds., 1996); Wendy R. Brown, School Desegregation Litigation: Crossroads or Dead End, 37 St Louis U. L.J. 923, 936 (1993); Alan Freeman, Racism, Rights and the Quest for Equality of Opportunity: A Critical Legal Essay, 23 Harv. C.R.-C.L. L. Rev. 295, 356 (1988); David B. Wilkins, Two Paths to the Mountaintop? The Role of Legal Education in Shaping the Values of Black Corporate Lawyers, 45 Stan. L. Rev. 1981, 1999 (1993); Adolphus Levi Williams, Jr., A Critical Analysis of the Bakke Case, 16 S.U. L. Rev. 129, 147 (1989); Paul R. Dimond & Gene Sperling, Of Cultural Determinism and the Limits of the Law, 83 Mich. L. Rev. 1065, 1072 (1985) (book review).
244. See, e.g., John C. Brittain, Affirmative Action Still Alive but Badly Wounded, in 11 Civil Rights Litigation And Attorney's Fees Annual Handbook 10-11 n.4 (Jules Lobel & Steven Saltzman eds., 1996); Wendy R. Brown, School Desegregation Litigation: Crossroads or Dead End, 37 St Louis U. L.J. 923, 936 (1993); Alan Freeman, Racism, Rights and the Quest for Equality of Opportunity: A Critical Legal Essay, 23 Harv. C.R.-C.L. L. Rev. 295, 356 (1988); David B. Wilkins, Two Paths to the Mountaintop? The Role of Legal Education in Shaping the Values of Black Corporate Lawyers, 45 Stan. L. Rev. 1981, 1999 (1993); Adolphus Levi Williams, Jr., A Critical Analysis of the Bakke Case, 16 S.U. L. Rev. 129, 147 (1989); Paul R. Dimond & Gene Sperling, Of Cultural Determinism and the Limits of the Law, 83 Mich. L. Rev. 1065, 1072 (1985) (book review).
245. See, e.g., John C. Brittain, Affirmative Action Still Alive but Badly Wounded, in 11 Civil Rights Litigation And Attorney's Fees Annual Handbook 10-11 n.4 (Jules Lobel & Steven Saltzman eds., 1996); Wendy R. Brown, School Desegregation Litigation: Crossroads or Dead End, 37 St Louis U. L.J. 923, 936 (1993); Alan Freeman, Racism, Rights and the Quest for Equality of Opportunity: A Critical Legal Essay, 23 Harv. C.R.-C.L. L. Rev. 295, 356 (1988); David B. Wilkins, Two Paths to the Mountaintop? The Role of Legal Education in Shaping the Values of Black Corporate Lawyers, 45 Stan. L. Rev. 1981, 1999 (1993); Adolphus Levi Williams, Jr., A Critical Analysis of the Bakke Case, 16 S.U. L. Rev. 129, 147 (1989); Paul R. Dimond & Gene Sperling, Of Cultural Determinism and the Limits of the Law, 83 Mich. L. Rev. 1065, 1072 (1985) (book review).
246. W.E.B. DuBois, The Souls Of Black Folk 13 (1904).
247. Arkes, supra note 96, at 1519.