The plenary power-shaped hole in the core constitutional law curriculum: Exclusion, unequal protection, and American national identity

California Law Review

Volumn 96, Issue 2, 2008, Pages 553-593

  Thamkul, Janel ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 44449105717     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (413)

1. J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963, 1024 (1998) [hereinafter Canons].
2. See PHILLIP K. KISSAM, THE DISCIPLINE OF LAW SCHOOLS 28 (2003) ("At least since the 1920s law professors and students have vigorously criticized the core curriculum's lack of relationship and progression, its lack of close connections to law practices, its autonomy from the social sciences, its emphasis on private law subjects and its repetitive or boring qualities.");
3. Roger C. Cramton, The Current State of the Law Curriculum, 32 J. LEGAL EDUC. 321, 327-32 (1982) (criticizing the law curriculum's weak structure and lack of diversity, its lukewarm commitment to both theory and practice, and its lack of rigor).
4. See Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 CALIF. L. REV. 1241, 1251 n.25 (1993), 1 ASIAN L.J. 1 (1994) (criticizing U.S. history textbooks which distort or omit Asian Americans from U.S. history);
5. see also CHRISTINE E. SLEETER & CARL A. GRANT, MAKING CHOICES FOR MULTICULTURAL EDUCATION: FIVE APPROACHES TO RACE, CLASS, AND GENDER 114 (5th ed. 2007) (dispelling the myth that education is a neutral process which does not promote any particular ideology or point of view).
6. KISSAM, supra note 2, at 25 ("Most law schools provide the same basic curriculum, which is not unlike the curriculum installed by Dean Langdell at Harvard in the late nineteenth century.") Christopher Columbus Langdell, who developed the new legal education at Harvard Law School in the 1870s, emphasized private law, which governed relations between citizens, over public law, which regulated relations between citizens and the state.
7. See Richard P. Cole & Gabriel J. Chin, Emerging from the Margins of Historical Consciousness: Chinese Immigrants and the History of American Law, 17 L. & HIST. REV. 325, 335-36 (1999). For a brief phase, Harvard primarily focused on common law, such as contract law, and omitted Constitutional Law courses.
8. See id. at 336. However, "the focus upon the development of orthodox legal doctrine by histories of common law tradition was ethnocentric, allowing no room for the study of diverse legal cultures."
9. Id. at 337
10. (citing Robert Gordon, Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography, L. & SOC'Y REV. 9, 19-20 (1975)).
11. KISSAM, supra note 2, at 25 ("Constitutional Law [is] usually [a] required subject[]... [but] may often be taken in a later year.").
12. See also Roderick A. MacDonald, Curricular Development in the 1980's: A Perspective, 32 J. LEGAL EDUC. 569, 571 (1982) (listing first-year required courses, including Constitutional Law);
13. see also Stanford Law School, First-Year Curriculum, http://www.law.stanford.edu/program/courses/lyrcurriculum (last visited Apr. 20, 2007);
14. see also University of California, Berkeley School of Law, Curriculum Advice Guide 2007, http://www.law.berkeley.edu/students/ services/CurriculumAdviceGuide20072.doc (last visited Apr. 20, 2007);
15. see also Yale University Law School, Academic Requirements and Options, http://www.yale.edu/bulletin/html/law/requirements.html (last visited Apr. 20, 2007);
16. see also New York University School of Law, Curriculum Advising Guide, available at http://www.law.nyu.edu/depts/acservices/degrees/ documents/CurricularAdvisingGuide2007-2.pdf (last visited Apr. 20, 2007);
17. see also University of Michigan Law School, Course Descriptions, http://cgi2.www.law.umich.edu/_ClassSchedule/CourseList.asp (last visited Apr. 20, 2007).
18. See, e.g., Harvard Law School, The Curriculum, https://www.law.harvard.edu/admissions/jd/about/curriculum/ (last visited Apr. 20, 2007);
19. University of California Hastings College of the Law, Required Courses, http://www.uchastings.edu/?pid=3300 (last visited Apr. 20, 2007);
20. see also University of California Hastings College of the Law, First Year Curriculum 2006-2007, http://www.uchastings.edu/?pid=3321 (last visited Apr. 20, 2007).
21. See J. M. BALKIN & SANFORD LEVINSON, LEGAL CANONS: AN INTRODUCTION, IN LEGAL CANONS 3 (J. M. Balkin & Sanford Levinson eds., 2000). Balkin and Levinson observe that legal academics look to the common law for their canonical examples, especially to constitutional law: Common law subjects and constitutional law have become, for good or ill, the canonical examples of law for American legal theorists... [A] majority of the most frequently cited articles of all time are about constitutional law subjects, even though there are many subjects of equal or greater importance to government policymakers and to the practicing bar.
22. Id. at 22.
23. See Frances Lee Ansley, Race and the Core Curriculum in Legal Education, 79 CALIF. L. REV. 1511, 1516 n.10 (1991) ("Cultural literacy for an American lawyer unequivocally requires some grounding in the United States Constitution.").
24. See discussion infra Part II.B.
25. 130 U.S. 581 (1889).
26. 149 U.S. 698 (1893).
27. See discussion infra Part III.
28. Gabriel J. Chin, Segregation's Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. REV. 1, 5 (1998)
29. (quoting 4 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 22.2 (2d ed. 1992)).
30. See discussion infra Part II.B.
31. For a definition and an in-depth analysis of the constitutional law canon, see discussion infra Part III.
32. As discussed in Part I, the Supreme Court cases involving Chinese immigrants, which established the government's plenary power over immigration and the framework for America's future treatment of all immigrants, provides an informative parallel with which to understand the experiences of other immigrant and "foreignized" groups. Although this comment focuses on two cases, Chae Chan Ping and Fong Yue Ting, which address the treatment of Chinese immigrants in the United States, this general type of canonical critique can and should be exported to all historically marginalized and excluded groups in order to ensure the accuracy of their portrayal in the American national identity narrative.
33. See Chin, supra note 13, at 5. The use of "plenary power" and "plenary power doctrine" in this comment refer to the Supreme Court's deference to the federal government's sweeping power in the area of immigration. The term "plenary power cases" refers to Chae Chan Ping and Fong Yue Ting.
34. See Natsu Taylor Saito, The Enduring Effect of the Chinese Exclusion Cases: The "Plenary Power" Justification for Ongoing Abuses of Human Rights, 10 ASIAN L.J. 13, 14 (2003).
35. See MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 31-35 (1983) (arguing that citizenship, which regulates the creation and composition of a particular community, raises critical distributive justice issues).
36. See T. Alexander Aleinikoff & Ruben G. Rumbaut, Terms of Belonging: Are Models of Membership Self-Fulfilling Prophecies?, 13 GEO. IMMIGR. L.J. 1, 2-3 (1998). Although 10% of the U.S. population is foreign-born, most residents of the United States were born into citizenship through the rule ofjus soli-citizenship of the place of one's birth.
37. Id. at 3.
38. U.S. CONST, amend. XIV, § 1.
39. Immigration & Nationality Act, 8 U.S.C. § 1101(a)(3) (2006) ("The term 'alien' means any person not a citizen or national of the United States.").
40. See Justia.com, Immigration Law Overview, http://www.justia.com/ immigration (last visited May 2, 2007). Aliens can be "lawful permanent residents,... immigrant visa holders, temporary lawful visitors, or undocumented illegal aliens."
41. Id.
42. See Leonard Dinnerstein, The Supreme Court and the Rights of Aliens, in REPRINTED FROM THIS CONSTITUTION: A BICENTENNIAL CHRONICLE (1985), available at http://www.apsanet.org/imgtest/SupremeCourtAlienRight.pdf.
43. See id.
44. BLACK'S LAW DICTIONARY 765 (8th ed. 2004).
45. See Robert S. Chang & Keith Aoki, Centering the Immigrant in the Inter/National Imagination, 85 CALIF. L. REV. 1395, 1398 (1997).
46. Aleinikoff & Rumbaut, supra note 20, at 1-2.
47. Id.
48. See id.
49. See generally Kevin R. Johnson & Bill Ong Hing, National Identity in a Multicultural Nation: the Challenge of Immigration Law and Immigrants, 103 MICH. L. REV. 1347 (2005). Tensions arise between immigrants and the receiving community, because their presence typically alters the community's existing social, cultural, economic, and political atmosphere, regardless of whether the immigrants vie for citizenship status.
50. See Ming-sung Kuo, The Duality of Federalist Nation-Building: Two Strands of Chinese Immigration Cases Revisited, 67 ALB. L. REV. 27, 66 (2003) (describing two possible responses to immigration by the host political community: exclusion or assimilation).
51. Id. Robert S. Chang and Keith Aoki note that the "project of national self-definition vis-à-vis the immigrant inevitably intersects with the project of national self-definition vis-à-vis this country's racial minorities."
52. Chang & Aoki, supra note 27, at 1396 n.3. "How the United States treats the immigrant is part of the 'project of national self-definition... [which] includes not only deciding whom to admit and expel, but also providing for each alien's transition from outsider to citizen.'"
53. Id. at 1396
54. (quoting Hiroshi Motomura, Whose Alien Nation?: Two Models of Constitutional Immigration Law, 94 MICH. L. REV. 1927, 1944-45 (1996)).
55. See id. at 1399-1400;
56. see also discussion infra Part II.B.
57. See Anthony Alfieri, Teaching the Law of Race, 89 CALIF. L. REV. 1605, 1616 (2001)
58. (reviewing Juan F. Perea, Race and Races: Cases and Resources for a Diverse America (Juan F. Perea et al. eds., 2000)) ("[C]itizenship embroils the concepts of democracy and equality, sometimes erupting in violence. Race and violence permeate the legal history of American citizenship, coloring the grant and denial of status, and the caste of inclusion and exclusion.").
59. For example, the Supreme Court ruled in Dred Scott v. Sanford, 60 U.S. 393 (1856), that Blacks would never be citizens, even though the U.S. Constitution in 1787 did not address national citizenship.
60. See Randall Kennedy, Race Relations in the Canon of Legal Academia, in LEGAL CANONS, supra note 7, at 211, 213.
61. See Kuo, supra note 31, at 58-65;
62. see also discussion infra Part I.D.
63. See Johnson & Hing, supra note 31, at 1348
64. (reviewing SAMUEL P. HUNTINGTON, WHO ARE WE? THE CHALLENGES TO AMERICA'S NATIONAL IDENTITY (2004)).
65. See id. at 1370 ("[T]he resentment toward the Chinese in the 1800s was sustained by a need to preserve 'racial purity' and 'Western civilization'.").
66. For an account of Asian exclusion and marginalization in U.S. history, see Chang, supra note 3, at 1286-1307.
67. See Kevin Coleman, The Asian American Population in the U.S., in ASIAN-AMERICAN ELECTORAL P ARTICIPATION 1, 3 (John W. Lee ed., 2002).
68. See Neil Gotanda, "Other Non-Whites" in American Legal History: A Review of Justice at War, 85 COLUM. L. REV. 1186, 1188 (1985)
69. (reviewing PETER IRONS, JUSTICE AT WAR (1983)).
70. For additional discussion of the United States' long history of race-based immigration policies, see IAN F. HANEY LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE 31-32 (2006) (citations omitted). Between 1790 and 1870, only White persons had the ability to naturalize. Naturalization privileges were extended to Blacks after 1870, but remained unavailable to non-White, non-Black immigrants, separating racial minorities eligible for citizenship into two classes: "Blacks" and "other non-Whites."
71. See id.
72. For a detailed history of racial immigration restrictions, see id. at 27-34.
73. See Charles J. McClain, Jr., The Chinese Struggle for Civil Rights in Nineteenth Century America: the First Phase, 1850-1870, 72 CALIF. L. REV. 529, 561-63 (1984).
74. For further historical background on the Chinese in nineteenth-century America, see RONALD TAKAKI, STRANGERS FROM A DIFFERENT SHORE 79-131 (1989).
75. See Coleman, supra note 38, at 3.
76. See id.
77. See Chae Chan Ping v. United States, 130 U.S. 581, 596 (1889).
78. Gotanda, supra note 39, at 1188. Kenneth L. Karst observes that [d]istrust and fear of persons with different cultural backgrounds usually finds expression in language emphasizing a conflict of values. In American history, however, the expressed concern for values has often provided the excuse-as well as the emotional fuel-for hostile action aimed at preserving interests that are mainly economic. Typically, people who are themselves on the margin of society and economy feel the most threatened by cultural outsiders and are the most likely to resort to intercultural violence... Chinese workers in nineteenth century California received their harshest treatment at the hands of white labor union members.
79. KENNETH L. KARST, BELONGING TO AMERICA 89 (1989). Chang adds that "Irish American workers in the West often led the calls for the exclusion of Asian immigrants."
80. Robert S. Chang, Dreaming in Black and White: Racial-Sexual Policing in The Birth of a Nation, The Cheat, and Who Killed Vincent Chin?, 5 ASIAN L.J. 41, 52 (1998)
81. (citing ALEXANDER SAXTON, THE INDISPENSABLE ENEMY: LABOR AND THE ANTI-CHINESE MOVEMENT IN CALIFORNIA 116-21 (1971)).
82. Law of Mar. 3, 1875, ch. 141, 18 Stat. 477 (repealed. Pub. L. 93-461, Oct. 20, 1974, 88 Stat. 1387).
83. John Hayakawa Torok, Reconstruction and Racial Nativism: Chinese Immigrants and the Debates on the Thirteenth, Fourteenth, and Fifteenth Amendments and Civil Rights Laws, 3 ASIAN L.J. 55, 96-97 (1996). The Page Act targeted Chinese prostitution and "coolie" labor.
84. See John Braeman, Deportation and Expulsion, in ASIAN AMERICANS AND THE SUPREME COURT: A DOCUMENTARY HISTORY 77, 79 (Hyung-Chan Kim ed., 1992);
85. see also Sucheng Chan, The Exclusion of Chinese Women, 1870-1943, in ENTRY DENIED: EXCLUSION AND THE CHINESE COMMUNITY IN AMERICA, 1882-1943 105-09 (Sucheng Chan ed., 1991) (analyzing the effect of the Page Law).
86. Chae Chan Ping, 130 U.S. at 596 (citing the supplemental treaty of Nov. 17, 1880). Notably, the United States' authority only extended to Chinese laborers, not immigration in general.
87. See id.
88. See Braeman, supra note 46, at 80. Previous immigration laws restricted entry of any "convict, lunatic, idiot," or any person likely to become "a public charge."
89. See Immigration Act of 1882, ch. 376, § 2, 22 Stat. 214 (repealed 1917).
90. Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882) (repealed 1943) ("An act to execute certain treaty stipulations relating to Chinese.").
91. See id. ;
92. Chae Chan Ping, 130 U.S. at 597-99.
93. See Torok, supra note 46, at 97 (citations omitted).
94. See Johnson & Hing, supra note 31, at 1371 (discussing how the Exclusion Acts weakened the development of the Chinese American families by barring the immigration of Chinese women).
95. See discussion infra Part II.
96. See Cole & Chin, supra note 4, at 332.
97. See id. at 332 n.37;
98. see also Louis HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 16 (2d ed. 1996) (affirming the Court's conclusion in Chae Chan Ping that Congress's plenary power to regulate aliens derives from powers inherent in the United States' sovereignty and nationhood).
99. See Chin, supra note 13, at 18-22 (revealing the racial bias, reflected in the plenary power cases, of Congress, the Justice Department, and the Supreme Court in excluding Asians reflected in the plenary power cases). "Nativism" has been defined as the "intense opposition to an internal minority on the grounds of its foreign (i.e. 'un-American') connections."
100. Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 11 MINN. L. REV. 269, 278 (1992)
101. (citing JOHN HIGHAM, STRANGERS IN THE LAND 4 (2d ed., 1998)). Perea adds that "American nativism has often taken the form of reinforcing the core culture through the law - using the law to restrict the expression of ethnic traits, including languages, different from those of the majority," resulting in such atrocities in the nation's legal history as the Alien and Sedition Acts and the persecution of Communists during the McCarthy era.
102. Id.
103. 163 U.S. 537 (1896).
104. 130 U.S. 581 (1889).
105. See id. at 609.
106. See id. at 582.
107. See id. at 582, 599.
108. See id. at 589.
109. See Kuo, supra note 31, at 76.
110. See Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889) ("The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one.").
111. Id.
112. Id. at 594 ("[The amendments to the Burlingame Treaty of 1868] have been caused by a well-founded apprehension - from the experience of years - that a limitation to the immigration of certain classes from China was essential to the peace of the community on the Pacific coast, and possibly to the preservation of our civilization there.") (emphasis added).
113. Id. at 544-96.
114. Id. at 595.
115. For discussion of Chae Chan Ping's sovereignty and nation-building implications internally, see Kuo, supra note 31, at 78.
116. See Chae Chan Ping, 130 U.S. at 609-10.
117. Id. at 606.
118. Id. (emphasis added).
119. See id.
120. Id. at 606-09 ("If, therefore, the government... considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities... its determination is conclusive upon the judiciary.");
121. see Chang & Aoki, supra note 27, at 1412.
122. 149 U.S. 698.
123. Id. at 726-30 (citing Act of May 5, 1892, ch. 60, § 6 27 Stat. 25 (1892) (repealed 1943)).
124. Id. at 726-28.
125. Id. at 701 n.1 (citing Act of May 5, 1892, ch. 60, § 6, 27 Stat. 25).
126. See Fong Yue Ting, 149 U.S. at 703-704.
127. See id.
128. See id. at 713 ("The power to exclude aliens and the power to expel them rest upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power.").
129. See id. at 714 ("It is no new thing for the law-making power, acting either through treaties made by the President and Senate, or by the more common method of acts of Congress, to submit the decision of questions, not necessarily of judicial cognizance, either to the final determination of executive officers, or to the decision of such officers in the first instance, with such opportunity for judicial review of their action as Congress may see fit to authorize or permit.").
130. See id. at 717
131. (citing Chae Chan Ping v. United States, 130 U.S. 581, 595-96 (1889)) ("[T]he presence within our territory of large numbers of Chinese laborers, of a distinct race and religion, remaining strangers in the land, residing apart by themselves, tenaciously adhering to the customs and usages of their own country, unfamiliar with our institutions, and apparently incapable of assimilating with our people, might endanger good order, and be injurious to the public interests." (emphasis added)).
132. Fong Yue Ting, 149 U.S. at 724.
133. Id. at 730.
134. See id. at 730-31.
135. See Fran Ansley, Recognizing Race in the American Legal Canon, in LEGAL CANONS, supra note 7, at 255.
136. See, e.g., Browning-Ferris Indus, v. Kelco Disposal, Inc., 492 U.S. 257, 263 (1989)
137. (citing Fong Yue Ting v. United States, 149 U.S. 698 (1893));
138. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984)
139. (citing Fong Yue Ting, 149 U.S. 698);
140. Fiallo v. Bell, 430 U.S. 787, 792 (1977)
141. (citing Fong Yue Ting, 149 U.S. 698,
142. and Chae Chan Ping, 130 U.S. 581).
143. Louis Henkin, states, "The Supreme Court has never reexamined" Chae Chan Ping, and "it has shown no disposition to do so."
144. Chin, supra note 13, at 15 n.94
145. (citing Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 HARV. L. REV. 853, 854 (1987)).
146. See also Saito, supra note 18, at 13 (arguing that Chae Chan Ping and other Chinese exclusion cases of the late 1800s still maintain a tight grip on American law).
147. Gabriel Chin notes that in Reno v. Flores, 507 U.S. 292 (1993), in determining the scope of judicial review of immigration statutes, the Court cited to five cases that either directly cited Fong Yue Ting or Chae Chan Ping or to other cases that cited them.
148. Chin, supra note 13, at 15 n.95 (citations omitted).
149. 347 U.S. 522 (1954).
150. Id. at 531-32. Despite finding that deportation of an alien, who was legally "part of the American community" entitled to the same protection of life, liberty, and property under the due process clause as a citizen, was equivalent to punishment for a crime, Justice Frankfurter deferred to Congress and conceded that the ex post facto clause of the Constitution did not apply to deportation.
151. Id. ("We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens on the basis of which we are unable to find the Act of 1950 [authorizing the petitioner's deportation due to his past membership in the Communist Party] unconstitutional.").
152. See John Hayakawa Torok, Asian American Jurisprudence: On Curriculum, 2005 MICH. ST. L. REV. 635, 674-76 (2005) (listing subsequent immigration laws restricting immigration from Asia);
153. see also Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 550-60 (1990) (tracing the development of the plenary power doctrine from its origins into the Early Modem Era).
154. Karst observes that: [t]o call a group unassimilable implied that its people were not sufficiently similar to the old stock to adapt themselves to a society defined by the old stock's world view, and thus that they should be excluded from the American community... The irony is that the universalism... that full membership in America would be extended to all who would embrace the nation's ideals... was so easily twisted into racist nativism. KARST, supra note 44, at 84.
155. 169 U.S. 649 (1898).
156. Id. at 731 (Fuller, J., & Harlan, J., dissenting)
157. (quoting Fong Yue Ting v. United States, 149 U.S. 698, 717 (1893)).
158. Gotanda, supra note 39, at 1190.
159. 260 U.S. 178 (1922).
160. 261 U.S. 204 (1923).
161. See id. at 215 ("The children of English, French, German, Italian, Scandinavian, and other Europe parentage, quickly merge into the mass of our population and lose the distinctive hallmarks of their European origin. On the other hand, it cannot be doubted that the children born in this country of Hindu parents would retain indefinitely the clear evidence of their ancestry. It is very far from our thought to suggest the slightest question of racial superiority or inferiority. What we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.").
162. For example, Chinese immigration constituted only a minute portion of overall immigration, and anti-immigration proponents did not contest labor competition from White aliens. See Chin, supra note 13, at 29.
163. For statements of senators welcoming European immigrants while disparaging Asian immigrants, see id. at 29-31.
164. Immigration Act of 1924, ch. 190, § 13(c), 43 Stat. 153 (repealed 1952).
165. Chin, supra note 13, at 14
166. (citing the Immigration Act of 1924, ch. 190, § 28(c), 43 Stat. 153, 168 ("The term 'ineligible to citizenship,' when used in reference to any individual, includes an individual who is debarred from becoming a citizen of the United States... under section 14 of the Act entitled 'An Act to execute certain treaty stipulations relating to Chinese.'")).
167. See id. at 14 (arguing that the Exclusion Acts "operated on the basis of race, not nationality or place of birth" and adding that the Acts considered ethnically-Japanese individuals to be Japanese, instead of Brazilian, even if they had lived in Brazil since birth
168. (citing Hitai v. INS, 343 F.2d 466, 467 (2d Cir. 1965))).
169. See Aleinikoff & Rumbaut, supra note 20, at 4
170. (citing HANEY LOPEZ, supra note 39, at 37-38).
171. See Torok, supra note 46, at 101-103.
172. See Aleinikoff & Rumbaut, supra note 20, at 4
173. (citing HANEY LOPEZ, supra note 39, at 46
174. (citing Immigration and Nationality Act of 1952, ch. 2, § 311, 66 Stat. 239 (codified as amended at 8 U.S.C. § 1422 (1998))).
175. Torok, supra note 46, at 101.
176. See Chang & Aoki, supra note 27, at 1409-10. Chang & Aoki discuss how the English-Only movement and restrictive immigration laws, such as California's Proposition 187, resemble the discriminatory alien land laws of the early 1900s, which prevented persons ineligible for citizenship from owning land. These laws were upheld as constitutional because they did not explicitly mention race, even though Asians were the only racial group that could not acquire citizenship.
177. See id.
178. See also Jan C. Ting, "Other Than a Chinaman ": How U.S. Immigration Law Resulted From and Still Reflects a Policy of Excluding and Restricting Asian Immigration, 4 TEMP. POL. & CIV. RTS. L. REV. 301 (1995).
179. See Chang & Aoki, supra note 27, at 1400-01
180. (citing Dennis Conway, Are There New Complexities in Global Migration Systems of Consequence for the United States "Nation-State"?, 2 IND. J. GLOBAL LEGAL STUD. 31, 41-42 (1994)
181. (citing Immigration Act of 1990, Pub. L. No. 101-649, § 131, 104 Stat. 4978, 5000 (codified as amended at 8 U.S.C. § 1153 (Supp. V. 1993)))). Chang and Aoki observe that "[i]n the midst of cries to limit illegal immigration, the figure of the Mexican border-crosser or of the Chinese boat person makes the evening news, whereas the fact that Italians constitute the largest group of undocumented immigrants in New York is obscured. "
182. Chang & Aoki, supra note 27, at 1400 (citation omitted).
183. See William R. Tamayo, Asian Americans and Present U.S. Immigration Policies: A Legacy of Asian Exclusion, in ASIAN AMERICANS AND THE SUPREME COURT 1105-1130. Under the Act, the INS did not have to explain its reason for denial of an application, making it harder for persons seeking admission to correct mistakes in their applications or records.
184. See id. at 1122. The Act also enabled the INS to deport aliens without affording them "their 'real and full day in court.'"
185. Id. at 1122-23.
186. Chin argues that the fact that the plenary power doctrine appears to have been motivated by racism is "a sound basis for departing from precedent." Chin, supra note 13, at 16.
187. See Chae Chan Ping, 130 U.S. at 595, 606-09;
188. see also Fong Yue Ting, 149 U.S. at 717;
189. see also Chang, supra note 44, at 51.
190. In fact, state courts were establishing the racial status of Chinese immigrants in America as early as 1854. In People v. Hall, 4 Cal. 399 (1854), the California Supreme Court established that the racial condition of the Chinese was as inferior as that of Blacks and Indians. Under an 1850 California statute which provided that "no Black, or Mulatto person, or Indian shall be allowed to give evidence in favor of, or against a White man," the California Supreme Court held that Chinese testimony was inadmissible by extending "Indian" to include Chinese and other Asians, and alternatively expanding the definition of "Black" to denote any non-White, thus encompassing the Chinese.
191. Hall, 4 Cal. at 399. The Hall court particularly emphasized the "foreign" nature of the Chinese, which distinguished them from both White and Black Americans: The anomalous spectacle of a distinct people, living in our community, recognizing no laws of this State, except through necessity, bringing with them their prejudices and national feuds, in which they indulge in open violation of law; whose mendacity is proverbial; a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown; differing in language, opinions, color, and physical conformation; between whom and ourselves nature has placed an impassable difference.
192. Id. at 405 (emphasis added).
193. See also Gotanda, supra note 39, at 1189.
194. See Chang, supra note 44, at 51. This comment uses the term "'real' Americans" to denote people who claim membership in the accepted dominant culture of the United States.
195. See Chang & Aoki, supra note 27, at 1400. Indeed, the first racially exclusionary immigration law in U.S. history targeted the Chinese despite the mass influx of European immigrants entering the country prior to this time.
196. See Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (1882) (repealed 1943).
197. See Chang & Aoki, supra note 27, at 1402. Blackness and Asianness "provided the racial predicate for exclusion," while "whiteness became the predicate for inclusion in the family that is America."
198. Chang, supra note 44, at 50-51. Under the false impression of White superiority and the declaration of a common Whiteness, European immigrants created a notion that they were above other marginalized groups, such as Chinese, and later all Asian, immigrants.
199. See id. at 52 (citation omitted).
200. Chang, supra note 44, at 51. "Racial nationalism, or 'the identification of American with white,'" initially excluded Blacks from the political community; the principle of "separate but equal" facilitated the "economic disempowerment, political disenfranchisement, and physical terrorization of Blacks, preserving the national community as White."
201. Chang & Aoki, supra note 27, at 1402-03.
202. Chang, supra note 44, at 50-51;
203. see Chang & Aoki, supra note 27, at 1412 (arguing that citizenship and immigration restrictions derived from the sense of the national community, which defined itself by portraying Asian immigrants and their descendants as "perpetual internal foreigners... Without Asian Americans, the 'real' Americans would not have known who they were").
204. Chin, supra note 13, at 35
205. (citing 13 CONG. REC. 1584, 1636 (1882) (Statement of Sen. Slater));
206. see also Plessy v. Ferguson, 163 U.S. 537 (1896) (Harlan, J., dissenting),
207. overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954). This distinction between non-White Blacks and non-White non-Blacks also affected other immigrant racial minorities.
208. See Tom I. Romero II, Our Selma is Here: The Political and Legal Struggle for Educational Equality in Denver, Colorado and Multiracial Conundrums in American Jurisprudence, 3 SEATTLE SOC. JUST. 73, 100-01 (2004) (discussing how by the early 1900s, courts generally held that the racial standing of Mexican Americans, in terms of the Constitution, was completely different from that of Blacks).
209. See Chin, supra note 13, at 36.
210. 163 U.S. 537 (1896) (Harlan, J., dissenting), overruled by Brown v. Bd. of Educ. 347
211. U.S. 483 (1954). Although Justice Harlan's dissent in Plessy is often cited as the first articulation of "color-blind" constitutional interpretation, Harlan strongly opposed extending the same recognition to the Chinese. His dissent reflected the view that Chinese immigrants' racial and cultural differences precluded them from becoming citizens through birthright or naturalization: There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the [segregation] statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana... who are entitled, by law, to participate in the political control of the State and nation... and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. Id. at 561.
212. For further critique of Harlan's "color-blind" constitutionalism, see Gotanda, supra note 39;
213. see also Gabriel J. Chin, The Plessy Myth: Justice Harlan and the Chinese Cases, 82 IOWA L. REV. 151 (1996). Justice Harlan's nativism is particularly evident in a letter to his son: "Our policy is to keep this country, distinctively, under American influence. Only Americans, or those who become such by long stay here, understand American institutions."
214. Id. at 160 (citing Letter from Justice Harlan to his son, James (Jan. 21, 1883) (unpublished manuscript, available in John Marshall Harlan Papers, Library of Congress)).
215. See See Kristi L. Bowman, The New Face of School Desegregation, 50 DUKE L.J. 1751, 1756 (2001) ("The foundation for Americans' understanding of race is rooted in both the United States' history of slavery and the Jim Crow laws and segregation that followed radical Reconstruction."
216. (citing RICHARD DELGADO, WHEN EQUALITY ENDS: STORIES ABOUT RACE AND RESISTANCE 118 (1999) ('"[T]he classic, the essential racial group is black... When someone mentions 'civil rights,' you immediately think black.'"))).
217. See also Juan F. Perea, The Black/White Binary Paradigm of Race: The "Normal Science " of American Racial Thought, 85 CALIF. L. REV. 1213 (1997), 10 LA RAZA L.J. 127 (1998).
218. See Balkin & Levinson, supra note 7, at 23 ("African Americans, in short, are the canonical example for thinking about issues of equality in the United States.").
219. See id.
220. See also Chang, supra note 3, at 1265-67 (arguing that emphasizing the /White racial paradigm oversimplifies America's complex racial dynamics and overlooks concerns such as nativistic racism);
221. see also Deborah Ramirez, Multicultural Empowerment: It's Not Just Black and White Anymore, 47 STAN. L. REV. 957 (1995).
222. See Bowman, supra note 120, at 1757. Asian Americans, Native Americans, and Latinas/os, are generally invisible in legal race discourse, particularly in the constitutional law canon.
223. See Torok, supra note 46, at 643
224. (citing John Hayakawa Torok, Finding the Me in LatCrit Theory: Thoughts on Language Acquisition and Loss, 53 U. MIAMI L. REV. 1019, 1027-34 (1999) (discussing Native Americans and Critical Race Theory);
225. see also Bowman, supra note 120, at 1796-99 (discussing how the Latina/o experience is "often overlooked in legal education, especially in the area of constitutional law - a required first-year course in law schools across the United States").
226. For discussion of how the United States' Black/White racial paradigm discourages people from relating to the past and present status of Asian Americans and Latinas/os in the U.S., see generally Robert S. Chang, The Nativist's Dream of Return, 9 LA RAZA L.J. 55 (1996) (analyzing how Asians were historically omitted from American racial discourse).
227. Neil Gotanda, Asian American Rights and the "Miss Saigon Syndrome," in ASIAN AMERICANS AND THE SUPREME COURT: A DOCUMENTARY HISTORY 1087, 1096 (Hyung-Chan Kim ed., 1992).
228. See Torok, supra note 46, at 644 (arguing that Asian Americans, whose cultures, beliefs, and origins are extremely diverse, are unified by a "shared legacy of racially defined foreignness").
229. See also Gotanda, supra note 39, at 1188 ("One of the critical features of legal treatment of Other non-Whites has been the inclusion of a notion of 'foreignness' in considering their racial identity and legal status.").
230. For similar challenges faced by other groups perceived as foreign, see Francisco Valdês, Under Construction: LatCrit Consciousness, Community, and Theory, 85 CALIF. L. REV. 1087, 1122-25 (1997), 10 LA RAZA L.J. 1 (1997) (discussing how Asian Americans and Latinas/os share a label of foreignness).
231. But see id. at 1133 (noting differences between the Asian American and Latina/o experience).
232. Harvey Gee observes that throughout history, "Asian Americans were treated as honorary whites, or black, but always foreign." Harvey Gee, Book Review: Race, Rights, And The Asian American Experience, 13 GEO. IMMIGR. L.J. 635, 638 (1999)
233. (reviewing ANGELO N. ANCHETA, RACE, RIGHTS, AND THE ASIAN AMERICAN EXPERIENCE (1998)). Gee discusses how in the 1800s, Chinese laborers in the United States were conceptualized as White, "enjoy[ing] white racial privileges over subordinate black laborers."
234. Id. In contrast, Asian Americans were considered to be Black, for purposes of school desegregation, and "foreign" in World War II as well as in current immigration discourse.
235. See id. Finally, in the recent debates over affirmative action, Asian Americans are regarded as White.
236. See id.
237. (citing ANCHETA, supra, at 3-4).
238. Chang & Aoki, supra note 27, at 1408 (noting that comments like "if you don't like it here, go back where you came from" are directed at groups perceived to be foreign).
239. See Tom I. Romero II, Our Selma is Here: The Political and Legal Struggle for Educational Equality in Denver, Colorado and Multiracial Conundrums in American Jurisprudence, 3 SEATTLE SOC. JUST. 73, 100-01 (2004) (discussing how judicial decisions refused to extend equal protection principles to Mexican Americans even though they encountered discrimination; by viewing them as a nationality group, as opposed to a racial group, courts could hold that the Constitution afforded them less protection).
240. See Gee, supra note 125, at 641-42.
241. 149 U.S. 698, 743 (1893) (Brewer, J., dissenting) (declaring that the 1892 Exclusion Act amounted to a deprivation of liberty without due process of law).
242. See Chin, supra note 13, at 6-7.
243. The government has used the plenary power doctrine to regulate foreign and domestic issues. See id. at 73-74 (arguing that Congress's immunity from judicial review under the plenary power doctrine encouraged its "casual attitude" and artlessness in creating the Immigration and Nationality Act);
244. see also Saito, supra note 18, at 13 ("[T]he plenary power doctrine also became a cornerstone of federal law governing both American Indian nations and external colonies such as Puerto Rico and Guam.").
245. For further discussion of the plenary power doctrine's effect on modern immigration law, see id. at 17-18 (discussing the government's use of its plenary power over immigration to indefinitely detain Mariel Cubans prohibited from returning to Cuba, to imprison and return Haitian refugees found on the high seas, and to prohibit vessels of undocumented Chinese laborers and asylum applicants from entering American ports).
246. See Susan M. Akram & Kevin R. Johnson, "Migration Regulation Goes Local: The Role of States in U.S. Immigration Policy": Race, Civil Rights, and Immigration Law After September 11, 2001: The Targeting of Arabs and Muslims, 58 N.Y.U. ANN. SURV. AM. L. 295, 329-31 (2002)
247. (citing BILL ONG HING, MAKING AND REMAKING ASIAN AMERICA THROUGH IMMIGRATION POLICY, 1850-1990 (1993) (reviewing the negative impact of restrictive federal immigration laws on Asian Americans));
248. HANEY LOPEZ, supra note 39 (discussing legislation in effect between 1790-1952 that required "whiteness" as a condition for naturalization).
249. See, e.g., Kevin R. Johnson, Public Benefits and Immigration: The Intersection of Immigration Status, Ethnicity, Gender, and Class, 41 UCLA L. REV. 1509, 1519-28 (1995) (citing the history of opposition to poor immigrants);
250. see also Kevin R. Johnson, Race, The Immigration Laws, and Domestic Race Relations: A "Magic Mirror" Into the Heart of Darkness, 73 IND. L. J. 1111, 1119-47 (1998) (reviewing how racial minorities were harmed by immigration regulations).
251. Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889).
252. See Kuo, supra note 31, at 76.
253. Chin, supra note 13, at 3-4.
254. th Cong., Grounds for Exclusion of Aliens Under the Immigration and Nationality Act: Historical Background and Analysis 77, 80-83, 113 (Comm. Print 1988);
255. Gabriel C. 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, 279-80 (1996) (discussing the federal government's attempts to reduce immigration from Africa and southern and eastern Europe).
256. See, e.g., Chae Chan Ping, 130 U.S. at 599, 608-09 (upholding and analogizing the federal government's discretion to exclude Chinese immigrants to the government's authority to exclude "incorrigible criminals or hopelessly dependent paupers");
257. see also Nguyen v. INS, 533 U.S. 53 (2001) (upholding immigration provision discriminating on the basis of gender);
258. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (refusing to examine a claim that immigration regulations were discriminatorily applied to Arab and Muslim non-citizens because it was outside the Court's authority);
259. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187-88 (1993) (finding no domestic or international law violations in Executive branch's policy of returning Haitian political refugees found on the high seas to Haiti without hearing asylum claims).
260. See Matthews v. Diaz, 426 U.S. 67, 79-80 (1976) ("In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.");
261. see also KARST, supra note 44, at 85 ("Most of [the measures instituted to bring about Americanization] plainly violate today's constitutional norms.).
262. See Kuo, supra note 31, at 35-36 (noting that although the Court could have implied Congress's power to regulate immigration and exclude aliens from "both the Necessary and Proper Clause and the naturalization power of Article I, section 8, clause 4," it chose to ignore these provisions).
263. See id. at 35-36 (citations omitted).
264. See Chin, supra note 13, at 6-7. The Court failed to address the possibility that the 1888 Exclusion Act violated the Constitution's Ex Post Facto Clause. Ming-sung Kuo argues that the Court's decision to ignore this potential constitutional violation shows that it placed national sovereignty above constitutional principles.
265. See Kuo, supra note 31, at 77.
266. 149 U.S. 698, 730-31 (1893).
267. Id. at 730.
268. See Saito, supra note 18, at 20.
269. 189 U.S. 86 (1903).
270. See id. at 86-94.
271. See id. at 101-02.
272. See Chin, supra note 13, at 7
273. (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 214-15 (1953)).
274. See id.
275. (citing Harisiades v. Shaughnessy, 342 U.S. 580 (1952)).
276. 347 U.S. 497 (1954).
277. See Chin, supra note 13, at 55-58
278. (citing Michael Scaperlanda, Polishing the Tarnished Golden Door, 1993 WISE. L. REV. 965, 976-77).
279. See id. at 57-58 (suggesting that the Court should find that Boiling overruled Chae Chan Ping and Fong Yue Ting).
280. DAVID COLE, ENEMY ALIENS 223-24 (2003).
281. Zadvydas v. Davis, 533 U.S. 678, 684-86 (2001).
282. Id.
283. Id. at 695-96.
284. Id. at 696-97.
285. Demore v. Kim, 538 U.S. 510, 527-28 (2003).
286. COLE, supra note 154, at 224.
287. 323 U.S. 214(1944).
288. Id. at 215, 222-23, 229 (emphasis added).
289. See id. at 219, 242-43 ("[In upholding the exclusion order], we are not unmindful of the hardships imposed by it upon a large group of American citizens. But hardships are a part of war, and war is an aggregation of hardships." (citations omitted)).
290. See Gotanda, supra note 39, at 1191.
291. See Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889).
292. Korematsu v. United States, 323 U.S. 214, 216 (1944).
293. Id. at 218 (citing Hirabayashi v. United States, 320 U.S. 81, 99 (1943) ("[W]e cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.")).
294. Kenneth L. Karst notes that one lesson from Korematsu implicates the relationship between "empathy and judicial defense of the Constitution . . . The invasion of constitutional rights is least likely to encounter judicial resistance when the judges, like the politicians, perceive the victims to be markedly different from themselves. Even a Justice can be blinded by the abstract image of the inscrutable Other." KARST, supra note 44, at 91.
295. See Kuo, supra note 31, at 27-28 (arguing that the September 11th terrorist attacks "rekindled the national debate on the status of non-citizen immigrants in the United States," which resembles the debate over the constitutional standing of Chinese immigrants in the 1800s);
296. see also Akram & Johnson, supra note 132, at 313 (arguing that "institutional racism through the law and its enforcement has contributed to the racialization and targeting of Arabs and Muslims" after September 11th).
297. See Saito, supra note 18, at 13, 20-24.
298. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, 346 (2001) (codified as amended at 8 U.S.C. § 1182(a)(3) (2002)).
299. David Fontana, A Case for the Twenty-First Century Constitutional Canon: Schneiderman v. United States, 35 CONN. L. REV. 35, 81-82 (2002) (citations omitted).
300. Id.
301. Kevin R. Johnson, September 11 and Mexican Immigrants: Collateral Damage Comes Home, 52 DEPAUL L. REV. 849, 851-52 (2003).
302. See Johnson & Hing, National Identity in a Multicultural Nation, 103 MICH. L. REV. 1347, 1369 (2005).
303. See also Johnson, supra note 174.
304. Peggy Nagae, Seventh Annual LatCrit Conference, LatCrit VII, Coalition Theory and Praxis: Social Justice Movements and LatCrit Community-Pari II, LatCrit Perspectives: Individual Liberties, State Security, and the War on Terrorism: Justice and Equity for Whom? A Personal Journey and Local Perspective on Community Justice and Struggles for Dignity, 81 OR. L. REV. 1133, 1150 (2002).
305. Id. at 1149-50.
306. See Johnson & Hing, supra note 31, at 1369 ("Part of this nation's identity has always rested on the respect for fundamental individual rights. That commitment has been placed in question throughout U.S. history by the nation's immigration policies. Most recently, the harshness of the anti-terrorism policies after September 11 dramatically impacted immigrants; Muslims and Arab communities were under siege and suffered hate violence.").
307. Saito, supra note 18, at 24.
308. See also Fontana, supra note 172, at 80 ("Any narrative about discrimination, however, must consider the history of discrimination in determining who could come to the United States and what would happen to immigrants after they arrived here.").
309. Akram & Johnson, supra note 132, at 330-31.
310. 163 U.S. 537 (1896) (Harlan, J., dissenting).
311. See Balkin & Levinson, supra note 7, at 13.
312. 163 U.S. at 552-54 (Harlan, J., dissenting).
313. Interestingly, Harlan's opposition to constitutional rights for Chinese immigrants goes unnoticed in his acclaimed construction of "color- blind" constitutionalism. See generally Gabriel Chin, The Plessy Myth: Justice Harlan and the Chinese Cases, 82 IOWA L. REV. 151 (1996).
314. See Chin, supra note 13, at 6 n.28.
315. Additionally, none of the vigorous dissents in Korematsu v. United States, 323 U.S. 214 (1944) (Jackson, J., Murphy, J., & Roberts, J., dissenting), are as renowned for championing civil rights and equal protection as Harlan's dissent in Plessy.
316. For additional criticisms of Harlan's "color-blind" constitutionalism, see Neil Gotanda, A Critique of "Our Constitution is Color Blind," 44 STAN. L. REV. 1 (1991);
317. Ian F. Haney Lopez, "A Nation of Minorities ": Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985 (2007).
318. See Chin, supra note 13, at 4.
319. Foreign racial classifications in immigration resemble domestic racial classifications now rejected as unconstitutional. See id. at 10-11. Chin notes that "[j]ust as the Jim Crow laws were designed to exclude those of African descent from American society, the laws excluding Asian immigrants upheld in Chae Chan Ping and Fong Yue Ting betray a belief in racial separation."
320. Id. at 2.
321. See id. at 11.
322. Id. at 72.
323. Balkin & Levinson, supra note 7, at 17.
324. See id.
325. Gabriel J. Chin, Segregation's Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. REV. 1, 17 (1998).
326. Leonard Dinnerstein proposes that the Framers failed to define national citizenship because: they saw little reason to restrict the relatively small number of Europeans who arrived periodically and contributed [sic] the nation's wealth. Moreover, they could not imagine that in a land as large as the United States immigration would ever constitute a problem or a source of concern. The young republic needed to bring people in, not keep them out. Dinnerstein, supra note 24, at 1. Ming-sung Kuo observes that the nature of the American nation was unclear at the founding, because the concurrent establishment of "thirteen 'sovereign' colonies . . . complicated the constitutional allocation of sovereignty between the federal and state governments."
327. Kuo, supra note 31, at 52-53.
328. Kuo, supra note 31, at 53 n.121 ("National citizenship is the legal mechanism that gives definition to 'the people'." (citation omitted)). Kuo notes that "[n]either the Articles of Confederation nor the original Constitution expressly provided for national citizenship."
329. Id. at 53 n.121.
330. See id. at 53.
331. Id. at 54.
332. 17 U.S. 316 (1819).
333. Balkin & Levinson, supra note 7, at 17. Marshall's account of the American nation-state became known as "Manifest Destiny."
334. Id. One might argue that aspects of Marshall's Manifest Destiny, which was used to justify America's expansion into the West, echo in the current political vision of an "American 'mission' to promote and defend democracy throughout the world."
335. G. William Rice, Teaching Decolonization: Reacquisition of Indian Lands Within and Without the Box, 82 N. DAK. L. REV. 811, 832 n.97 (2006).
336. See 130 U.S. 581, 594-600 (1889).
337. See also discussion supra Part I.C.I.
338. See 149 U.S. 698, 705-725 (1893).
339. See also Johnson v. M'Intosh, 21 U.S. 543 (1823) (tracing history back two hundred years to a source of sovereignty - the King of England - in order to explain why Native Americans had no ownership rights to land).
340. Sleeter & Grant, supra note 3, at 124 (citing Paul Lauter, Canons and Contexts ix (1991)).
341. Canons, supra note 1, at 1002.
342. Id. at 1002-03 ("[T]hings do not become canonical simply because they are important; often they become important because they are canonical.").
343. Id.
344. Balkin & Levinson, supra note 7, at 3.
345. See KISSAM, supra note 2, at 31-32. Casebooks usually consist of excerpts from appellate court cases, based on editors' ideas of "what 'cases and materials' students ought to be exposed to on their intellectual journey from uninitiated laypersons to well-educated, 'disciplined' lawyers," followed by related notes, questions, and hypothetical scenarios.
346. Balkin & Levinson, supra note 7, at 6.
347. Although law professors play an important role by supplementing the casebook in their individual courses with materials that reflect perspectives missing from the tome, in practice, very few actually do. See Balkin & Levinson, supra note 7, at 6 (noting that while some "energetic law professors sometimes add supplemental materials of their own devising . . . for the most part American law students are fed a steady diet of increasingly thick (and increasingly expensive) casebooks"). Accordingly, if professors do not provide supplementary materials, the casebook remains the sole source of information for the Constitutional Law course; if professors do provide supplementary materials, the casebook defines those perspectives that are already represented and those that need to be included.
348. Canons, supra note 1, at 1014 (describing various ways in which casebook editors can present the law).
349. Id.
350. See id. at 973.
351. Jerry Goldman surveyed eleven major constitutional law casebooks to determine whether a constitutional law canon exists. See Jerry Goldman, Is There a Canon of Constitutional Law?, AM. POL. SCI. ASS'N NEWSL. (Law and Courts Section of the Am. Political Science Ass'n), Spring 1993, at 135-137.
352. For the list of Goldman's canonical cases with case synopses, see Balkin & Levinson, supra note 7, at 6 n.20.
353. Canons, supra note 1, at 973-74. McCulloch has been regarded as the "most canonical of constitutional cases."
354. Id. at 987.
355. See Goldman, supra note 211, at 136.
356. See America's Best Graduate Schools 2007: Schools of Law, U.S NEWS & WORLD REP. (SPECIAL REP.), Apr. 9, 2006, at 92 (listing the following schools: Yale University, Stanford University, Harvard University, Columbia University, New York University, University of Chicago, University of Pennsylvania, University of California at Berkeley, University of Michigan at Ann Arbor, Duke University, and University of Virginia). Out of the top ten schools, constitutional law professors responded from Yale University, Stanford University, Harvard University, New York University, University of Chicago, University of Pennsylvania, University of California at Berkeley, and University of Virginia; however, not every professor contacted at each institution responded.
357. In order of popularity, the seven most commonly used casebooks in basic constitutional law courses were: STONE, SEIDMAN, SUNSTEIN, TUSHNET & KARLAN, CONSTITUTIONAL LAW (5th ed. 2005);
358. BREST, LEVINSON, BALKIN, AMAR & SIEGEL, PROCESSES OF CONSTITUTIONAL DECISIONMAKING (5th ed. 2006);
359. SULLIVAN & GUNTHER, CONSTITUTIONAL LAW (Foundation Press 15th ed. 2004)'
360. CHOPER, FALLON, KAMISAR & SHIFFRIN, CONSTITUTIONAL LAW (10th ed. 2006);
361. FARBER, ESKRIDGE & FRICKEY, CONSTITUTIONAL LAW: THEMES FOR THE CONSTITUTION'S THIRD CENTURY (West 3rd ed. 2003);
362. COHEN, VARAT & AMAR, CONSTITUTIONAL LAW: CASES AND MATERIALS (Foundation Press 12th ed. 2005);
363. and CHEMERINSKY, CONSTITUTIONAL LAW (2nd ed. 2005). Syllabi for Constitutional Law, Fall 2006 & Fall 2007 (on file with author).
364. See BREST, LEVINSON, BALKIN, AMAR & SIEGEL, PROCESSES OF CONSTITUTIONAL DECISIONMAKING 398-405 (5th ed. 2006).
365. See id. at 399-404.
366. Id. at 979-81.
367. Id. at 1157-60.
368. See COHEN, VARAT & AMAR, CONSTITUTIONAL LAW: CASES AND MATERIALS 208 (Foundation Press 12th ed. 2005).
369. Id. at 217
370. (citing Kleindienst v. Mandel, 408 U.S. 753 (1972)). The section on regulation of aliens covered approximately one page.
371. See id. at 217-18.
372. See CHOPER, FALLON, KAMISAR & SHIFFRIN, CONSTITUTIONAL LAW 1346-54, 1354 n.g (10th ed. 2006)
373. (citing Chin, supra note 13).
374. See Canons, supra note 1, at 973-74, 987.
375. See Goldman, supra note 211, at 136.
376. See Kuo, supra note 31, at 66;
377. see discussion, supra, Part I.
378. See Suzanne Last Stone, Cultural Pluralism, Nationalism, and Universal Rights, 21 CARDOZO L. REV. 1211, 1215 (2000) (citation omitted).
379. Kenneth L. Karst, The Bonds of American Nationhood, 21 CARDOZO L. REV. 1141, 1160 (2000).
380. Immigration Act of 1990, Pub. L. No. 101-649, § 131, 104 Stat. 4978, 5000 (codified as amended at 8 U.S.C. § 1153 (Supp. V. 1993)).
381. See Fontana, supra note 172, at 78 ("From 1790 until 1952, federal law stipulated that a person basically had to be considered 'white' in order to be eligible for American citizenship. Were it not for the Chinese Exclusion Act of 1892 and the Immigration Act of 1924, for instance, many more Asian Americans would live in the United States today. These regulations explain why eighty-five percent of the American population in 1900 was white, and why it is projected that it will be about fifty percent non-white by the year 2050. This projected demographic figure might have been the reality in 1850, but for immigration regulation.") (citations omitted).
382. Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)) (emphasis in original).
383. Kevin R. Johnson and Bill Ong Hing point out that "[t]he nation had a more coherent national identity in a time when minorities were subordinated in an era of Jim Crow and other unforgiving assimilationist measures." Johnson & Hing, supra note 31, at 1362-63. Additionally, the century of anti-Asian immigration laws, domestic laws, and violence "may well have facilitated a cohesive national identity."
384. Id. at 1363 ("It is much easier to ensure a unified national identity when a society is not multiracial and multicultural."). Johnson and Hing propose a new formulation of American identity applicable to a multicultural society, consisting of "respect for the laws, for the democratic political and economic system, and for equal opportunity."
385. Id. at 1390. Additionally, they assert that "[t]he requirement of inclusion and respect for diversity is reciprocal and applies to all persons in the United States."
386. Id.
387. th, should change the composition of the constitutional canon).
388. KARST, supra note 44, at 196.
389. For example, Plessy v. Ferguson, 163 U.S. 537 (1896),
390. overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954), which upheld the concept of "separate but equal," is commonly taught to reveal the racist history of the interpretation of the Equal Protection Clause in the United States.
391. See Balkin & Levinson, supra note 7, at 13.
392. See Balkin & Levinson, supra note 7, at 13.
393. Saito, supra note 18, at 14.
394. See id. at 78-79.
395. KARST, supra note 44, at 89.
396. 5 U.S. 137 (1803).
397. 17 U.S. 316 (1819).
398. 163 U.S. 537 (1896).
399. 347 U.S. 483 (1954).
400. See Fontana, supra note 172, at 72 ("[V]ery little attention is paid to the constitutional law of immigration regulation. Most constitutional casebooks discuss, at most, Plyler v. Doe," 457 U.S. 202 (1982), which prohibited state discrimination against aliens in some education policy matters, "while important constitutional law cases that have immigration law components do not discuss the immigration law issues posed by those cases.").
401. See generally INS v. Chadha, 462 U.S. 919 (1983) (invalidating as unconstitutional 8 U.S.C. § 1254(c)'s legislative veto provision in the immigration law's suspension of deportation section).
402. Ansley, supra note 85, at 257
403. (citing Juan Perea, The Statue of Liberty: Notes from Behind the Gilded Door, in IMMIGRANTS OUT! THE NEW NATIVISM AND THE ANTI-IMMIGRANT IMPULSE IN THE UNITED STATES 190, 190-204 (Juan F. Perea ed., 1997)).
404. See Fontana, supra note 172, at 79 ("Any history of the constitutional protection of liberties under the Fifth or Fourteenth Amendment must take into account the way constitutional law has regulated liberty of immigrants.").
405. Ansley, supra note 8, at 1591;
406. see also Ansley, supra note 85, at 242-43 (discussing the "additive" version of canon transformation which focuses on a need to be more inclusive).
407. See MacDonald, supra note 5, at 573 ("If law schools are to respond adequately to the ebb and flow of compulsory/optional pressures, they cannot avoid the issue by increasing obligatory offerings; rather, they must discover or rediscover the values which underlie the selection of basic courses.").
408. See Ansley, supra note 8, at 1591.
409. Fran Ansley recounts how, in her second year of law school, she realized the impact of Reconstruction and the Fourteenth Amendment on the Constitution in a course called "Con Law II": "I found myself worrying about the students who did not take Con Law II. Would they somehow, through some other route, learn this inspiring and thought-provoking fact about the amendment's genesis? It seemed important to me that they should." Ansley, supra note 85, at 239.
410. ARTHUR M. SCHLESINGER, JR., THE DISUNITING OF AMERICA: REFLECTIONS ON A MULTICULTURAL SOCIETY 2-3 (1991).
411. Suzanna Sherry, The Canon in Constitutional Law, in LEGAL CANONS, supra note 7, at 374, 379
412. (citing Amy Gutmann, Introduction, in MULTICULTURALISM: EXAMINING THE POLITICS OF RECOGNITION 3, 17 (Charles Taylor et al. eds., 1994) (footnote omitted)
413. (quoting Ralph Waldo Emerson, The American Scholar, in SELECTED ESSAYS 87 (Larzer Ziff ed., 1982))).