Owen Fiss is right to argue that the equal protection clause should be read to ban not only discrimination but also “the creation of a near-caste structure.” He is also right to think that recent anti-immigrant measures pose the danger of contributing to caste-like statuses within the United States. Understandably, he seeks to make an unimpeachable legal case for that conclusion by focusing strictly on the consequences of the disadvantages imposed on immigrants by recent measures.

Fiss’s analysis is, however, open to objections that make it far less than a lay-down hand. His case needs to be supplemented by viewing these measures in historical and political perspective. This vantage point makes clear that what we face now is not the creation of a new caste system, but rather the predictable efforts to shore up rotting but still deeply entrenched timbers of our old politically-crafted racial and ethnic hierarchies. We pledged ourselves as a nation to eliminate those systems 130 years ago. Instead we have repeatedly protected, even strengthened them. Given those realities, we should see it as constitutionally appropriate for courts, lawmakers, and citizens to concern themsevles with challenging government actions that work to preserve or even enhance, the caste systems intertwining color and class that have loomed so large and for so long in American life.

The heart of Fiss’s case is summed up in the sentence, “We ought not to subjugate immigrants, not because we owe them anything, but to preserve our society as a community of equals.” That appealing argument is open to two major objections, both of which Fiss addresses, but not decisively.

The first objection is that it makes no sense in this context to say that we must “preserve” America as a “community of equals,” because even legal immigrants have never been fully equal members of the US political community, and not even Fiss thinks they should be. He does not think they should vote. He says it makes sense to confine voting to those who have professed loyalty to the political principles that voters are supposed to sustain and extend, and that immigrants have relatively easy access to that status via naturalization. But precisely because immigrants do have easy access to citizenship and voting, many might say that resident aliens who forego naturalization have indicated they do not accept equal responsibility for the fate of the American republic. Hence, arguably, they cannot claim equal benefits as a matter of right. As they could get both citizenship and full benefits if they wanted, but have chosen not to do so, their deprivation appears to be their choice. Undocumented aliens, in contrast, cannot choose to become citizens, and so they might more plausibly be seen as having a status that was merely the best among dreadful alternatives-not the product of meaningfully free choices.

The second objection, however, is that it makes no sense to say that we must “preserve” our “community of equals” when we are discussing undocumented immigrants, who are not legally part of the American “community” at all. If, as Fiss says, “the very existence of the nation as a community” rests in its power “to determine its own membership,” then this lack of legal membership in the American community seems decisive. Whether undocumented aliens are subjugated or not appears irrelevant to maintaining equality within the community. If subjugating them remains wrong, then spending resources to return them whence they came may seem at least as obvious a course as spending resources to aid their continued presence in the United States.

Fiss responds the same way to both these possibilities-he claims that legal immigrants may choose not to take citizenship despite loss of benefits, and that some immigrants may choose to come without legal permission to do. The Constitution, he says, forbids “even voluntary subjugation” because it “would disfigure society.” Here he overstates. The Thirteenth Amendment only forbids “involuntary servitude.” It is true that we understand this ban to prohibit someone from selling herself into chattel slavery, but only because most of us believe this can never be a truly free choice. It is far less certain that someone who remains a resident alien without benefits when citizenship is available to her is really in the thralls of any such “involuntary servitude.” And even in regard to those with undocumented status, reasonable people can disagree over whether this represents a free choice or not.

Fiss can probably defend his position further. Still, these problems are enough to justify pursuing his conclusion by a different route. Fiss is right to judge statutes by their consequences, but those consequences should be appraised in light of the broader historical contexts in which statutes arise and are implemented. We should recall that up until 1965, US citizenship laws visibly defined an elaborate racial and ethnic caste system. The national origins quota system, enacted explicitly to limit the access of the “lower races” to US citizenship, prevailed until the 1965 Immigration Act. Numerous state and local measures explicitly aimed at disfranchising African-Americans in the south and many Latinos in the southwest also remained effective until the 1965 Voting Rights Act. Racially and ethnically-based denials of access to full US citizenship thus operated against most of the people of color within and outside US borders up to a generation ago.

It is painful to recognize that the United States was so recently a caste society, but that is the reality. It was, to be sure, always a contested reality: hence the thin veil of “separate but equal” for the Jim Crow system of disfranchisement and subordination. The cumulative results of those contests have produced great and enduring gains for the nation’s racial and ethnic minorities. We must also recognize, however, that every period of racially egalitarian reforms in American life has been followed by a backlash in which progress ceased and some systems of racial inequality were reestablished in modified form. For example, blacks in North Carolina gained the vote after the American Revolution, then lost it in the 1830s, regained it during Reconstruction, then effectively lost it in the 1890s, regaining it only after 1965. The Civil War and Reconstruction also saw federal efforts to encourage immigration and relax racial restrictions on naturalization, but with the end of Reconstruction new race-based immigration restrictions spread.

Though backlash is not the whole story, it is impossible to deny that the movement against immigrants today in part expresses opposition to the results of the civil rights and immigration reforms of the 1960s. In 1992 and more elaborately in 1995, Forbes and National Review editor Peter Brimelow lamented that the 1965 immigration reforms threatened the traditional “racial hegemony of white Americans” in the United States and also added new colored beneficiaries of affirmative action. In 1994, Herrnstein and Murray’s Bell Curve complained that “Latino and black” immigration was lowering American intelligence and providing new beneficiaries for America’s allegedly counterproductive welfare, antidiscrimination, and affirmative action laws.1 Then came the anti-immigrant Prop. 187 in California, followed by Prop. 209, ending affirmative action there, and the 1996 welfare reform act, which cut off benefits to immigrants, identified in the popular mind primarily with Mexicans, Haitians, and other often impoverished people of color. They are people the United States long excluded and/or subjugated by law; they are the people already much-reviled under the label “underclass”; and they are the people most hurt by recent anti-immigrant and anti-welfare laws. Seen in historical and political perspective, then, these measures appear simply to recast all-too-familiar American caste systems.

I believe the Fourteenth Amendment is a constitutional mandate for American governments to make sure their policies are not perpetuating these old caste systems, but rather working to alleviate them and their effects: to achieve equal protection for all. Because these recent laws do the reverse, I agree with Fiss that courts should invalidate them. I recognize, however, that courts may be reluctant to rely so much on history and surrounding contemporary circumstances in assessing the consequences of recent legislation. But if those problems mean that efforts to repudiate these laws by judicial means may not work, then American citizens have all the more reason to take action themselves to reject these measures and all others that threaten to extend the cruel legacies of our racist past…

1 Richard J. Herrnstein and Charles Murray, The Bell Curve: Intelligence and Class Structure in American Life (New York: The Free Press, 1994), pp. 356-64, 479-526; Peter Brimelow, Alien Nation: Common Sense About America’s Immigration Disaster (New York: Random House, 1995), pp. 1, 58-59, 122, 217-19, 263-64.