These are dark and difficult days. The economy is flourishing, but the spirit is mean. Rather than using the freedom that prosperity brings to extend an extra hand to the needy, we seem determined, as Rogers Smith put it, “to shore up the rotting but still deeply entrenched timbers of our old politically-crafted racial and ethnic hierarchies.” Smith’s observation applies with particular force to the treatment of immigrants.
My article seeks to counter this trend and to explain why recent measures affecting immigrants are inconsistent with the constitutional principle against caste. I turned to the judiciary for the implementation of that principle, and in so doing, reflected a certain unease–detected by a number of the respondents–about organized politics as the avenue for the pursuit of justice. My critics are right when they say that politics need not be reduced to the pursuit of self-interest and can be a domain for the discharge of our moral responsibility, but the sad truth is that far too often other, less attractive considerations come into play and the results are utterly deplorable.
A case in point is the June 1998 amendment to the 1996 welfare act, extolled by Myron Weiner, Muzaffar Chishti, and others. This amendment enables needy immigrants who are disabled to obtain food stamps, thereby moderating the harshness of the welfare law, but only if these individuals can show that they lawfully entered the United States before August 22, 1996 (the date of the enactment of the welfare law) and even more bizarrely, that their disability arose prior to that date. Jennifer Gordon proposes that immigrants be given some participatory rights, but such reforms are unlikely to preclude results such as those embodied in the 1998 or 1996 statutes or to transform politics into, borrowing Ronald Dworkin’s phrase, a forum of principle.
But if we cannot expect much from politics, why have high hopes for judicial decisions? Judges are, as John Ely once reminded us, people, and suffer all the human foibles. The exercise of the judicial power is limited, however, by certain procedural norms that have no counterpart in politics. I refer here not just to the independence of the judiciary from the will of the electorate, so uncharitable these days, but also to the requirements that judges must respond to grievances that they might otherwise prefer to ignore, hear from all aggrieved parties, assume individual responsibility for their decisions, and justify their decisions in terms of publicly accepted norms. Judges engage in a special dialogue with the public. Through this dialogue they achieve a certain distance from their personal proclivities and come face to face with what Mark Tushnet might call universal reason.
Sometimes this faith in reason proves justified, as it did one bright and sunny day in 1954. The exercise of judicial reason in Brown v. Board of Education did not, reading Robin West’s fears back into history, divest the political agencies of responsibility. Rather, it acted as a catalyst, a call to action, to which all the nation, including the President and Congress, responded, first to enforce that decision and then to extend it. The 1960s were marked by a coordination, rather than a separation, of powers and the Court was very much at the helm, though no one should slight the contribution of various political agencies or ordinary citizens, who often took to the streets or voiced their grievances in the halls of justice or before the bar of politics.
The antisubjugation principle emerged from this extraordinary process of reform, guided by Justice Brennan, that came to be known as the Second Reconstruction. Ulrich Preuss underscores the exceptional nature of what the Court was then attempting and the task I envision for the judiciary in my article. From the German perspective, it is not imaginable that the courts would, in his words, “correct for structural deficiencies of society.” This is precisely, however, what Brown attempted and is a source of the uniqueness and greatness of the American constitutional tradition.
Alex Aleinikoff warmly endorses this tradition and the undertaking begun in Brown, but urges that the principle of that case, specifically the rule against subjugation, be confined to remedying the plight of African Americans. Otherwise, he fears, we might have an “equality revolution” on our hands. In trying to contain the antisubjugation principle in this way, he slights the multitude of connections–underscored by many participants in this symposium, most notably Rogers Smith, Richard Freeman, and Iris Young–between racial hierarchies and the social structures that subjugate other groups, including immigrants or those defined in terms of income, gender, language, sexual orientation, or disability. He overlooks the essential unity of equality. The Second Reconstruction began with race, as indeed was right and proper, since our treatment of blacks represented the greatest constitutional betrayal, but was soon extended to other disadvantaged groups.
The 1982 decision in Plyler v. Doe is of this tradition, affirming what Jagdish Bhagwati calls the “essential truth” about ourselves as a nation, a self-understanding that he sees symbolized by the Statue of Liberty and our reverence for it, but that decision was more a sign of the past than an indication of where the Court was heading. By the mid-1970s, the Court had already abandoned the project begun in Brown. Congress filled the void during the 1970s and 1980s and in fact countered many of the judicial setbacks to civil rights during that period, but it dramatically reversed course after the 1994 elections. It now is pursuing a different path altogether. The White House withdrew from the civil rights coalition after the election of President Nixon in 1968, and with the exception of the Carter intermezzo, remained hostile to egalitarianism throughout the 1970s and 1980s. The election of President Clinton in 1992 was a cause for some hope, but by August 1996, when he signed the welfare bill that lies at the heart of this symposium, it became clear, all too clear, that the Second Reconstruction was at an end.
Much of the work of the Second Reconstruction remains. It achieved notable successes for African Americans in enlarging the franchise, opening the doors of public accommodations, and integrating the upper echelons of society. It also improved the positions of women and the handicapped. For other disadvantaged groups, like immigrants, the immediate focus of my article, those structures have been reinforced. All the respondents are unified in the thought that the present Court is unlikely to accept the full force of the Plyler decision and give substance to its underlying principle, much less issue a call for a third reconstruction. I am not of different mind. I am impelled, however, by a commitment to reason and a certain vision of the responsibilities of intellectuals in these troubled times. Our task is not to anticipate the response of the Court, even less that of the political branches, but to address the great issues of the day and to discover and then explain what justice requires, with the hope that some day and in some way the truth will find a home in this world. We have to begin somewhere.