Race, the Immigration Laws, and Domestic Race Relations: A "Magic Mirror

Indiana Law Journal Volume 73 | Issue 4 Article 2 Fall 1998 Race, the Immigration Laws, and Domestic Race Relations: A "Magic Mirror'' into the Heart of Darkness Kevin R. Johnson University of California at Davis Follow this and additional works at: http://www.repository.law.indiana.edu/ilj Part of the Civil Rights and Discrimination Commons, and the Immigration Law Commons Recommended Citation Johnson, Kevin R. (1998) "Race, the Immigration Laws, and Domestic Race Relations: A "Magic Mirror'' into the Heart of Darkness," Indiana Law Journal: Vol. 73: Iss. 4, Article 2. Available at: http://www.repository.law.indiana.edu/ilj/vol73/iss4/2 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact . Race, the Immigration Laws, and Domestic Race Relations: A "Magic Mirror''t into the Heart of Darkness KEViN R. JOHNSON* TABLE OF CONTENTS INTRODUCTION ................................................. 1112 I. THE HISTORY OF RACIAL EXCLUSION IN THE U.S. IMMIGRATION LAWS. 1119 A. From Chinese Exclusion to GeneralAsian Subordination ........ 1120 1. Chinese Exclusion and Reconstruction .................... 1122 2. Japanese Internment and Brown v. Boardof Education ........ 1124 B. The NationalOrigins Quota System ........................... 1127 C. Modern RacialExclusion .................................... 1131 1. The War on "Illegal Aliens" a/k/a Mexican Immigrants ........ 1136 2. Asylum, Haitian Interdiction, and the Politics of Race ......... 1140 3. Proposition 187 and Race ................................. 1144 II. LESSONS FROM THE IMMIGRATION LAWS FOR DOMESTIC MINORITIES.. 1148 A. Racial Exclusions in the ImmigrationLaws Reinforce the SubordinatedStatus of Minority Citizens in the United States ..... 1148 B. Lessonsfrom Psychological Theory: Why Immigrants of Color Are Society's Scapegoats ....................................... 1154 CONCLUSION ................................................... 1158 t The "magic mirror" metaphor is from Lennon v. INS, 527 F.2d 187 (2d Cir. 1975), in which the court stated that the list of grounds for exclusion of noncitizens from admission into the United States "is like a magic mirror, reflecting the fears and concerns of past Congresses." Id. at 189 (emphasis added). * Professor of Law, University of California at Davis. A.B., University of California at Berkeley; J.D., Harvard University. This paper, which is part of a larger project analyzing the implications of the immigration laws for U.S. citizens, was prepared for the Critical Race Theory Conference at Yale Law School in November 1997. I thank the participants at that conference, especially Mary Romero, Margaret Montoya, Leslie Espinoza, Chris Cameron, Deborah Waire Post, Jo Carrillo, John Park, Maria Ontiveros, and Neil Gotanda, for their comments and support. Correspondence with Richard Delgado on preliminary ideas focused my thinking; his encouraging comments on a draft proved valuable. I am indebted to Michael Olivas for his continued encouragement and support as I test new academic waters. Conversations with George A. Martinez, as well as his comments on a draft, assisted greatly in the evolution and development of the arguments in this paper. I also thank John Scanlan, Sylvia Lazos, Stephen Shie-Wei Fan, Guadalupe Luna, Jack Chin, Victor Romero, Jan ChingAn Ting, Gil Gott, and Alex Aleinikoff for helpful, though often critical, comments on a draft. Frank Valdes offered insightful suggestions on an adapted version of this paper. I, of course, am responsible for all errors. Christine Shen, Melissa Corral, and Sushil Narayanan provided first-rate research assistance. 1112 INDIANA LA W JOURNAL [Vol. 73:1111 Well Papa go to bed now it's getting late Nothing we can say can change anything now Because there's just different people coming down here now and they see things in different ways And soon everything we've known will just be swept away.' INTRODUCTION In the face of persistent, often virulent attacks in the popular press,2 as well as academia,3 the critical study of the impact of race on the social fabric of the United States continues. Despite the rich analysis of race in critical scholarship, a body of law chock full of insights remains largely unexplored. 4 Immigration law traditionally has been considered a specialty area of practitioners spumed by academics. However, the treatment of "aliens," particularly noncitizens of color, under the U.S. immigration laws reveals volumes about domestic race relations in the nation. A deeply complicated, often volatile, relationship exists between racism directed toward citizens and that aimed at noncitizens. Peter Brimelow's anti-immigrant book, Alien Nation,5 exemplifies this relationship; while ostensibly criticizing the state of U.S. immigration law, the book attacks affirmative action, "Hispanics," multiculturalism, bilingual education, and virtually any program designed to remedy discrimination in the United States. As the legacy of chattel slavery and forced migration from Africa would have it, the United States has a long history of treating racial minorities in the United States harshly, at times savagely. Noncitizen racial minorities, as foreigners not part of the national community, generally have been subject to similar cruelties 1.BRUCE SPRINGSTEEN, Independence Day, on THE RIVER (Columbia Records 1980). 2. See, e.g., Alex Kozinski, Bending the Law, N.Y. TIMES, Nov. 2, 1997, § 7, at 46 (reviewing BeyondAll Reason by Daniel A. Farber and Suzanna Sherry); Neil A. Lewis, For Black Scholars Wedded to Prism ofRace, New andSeparate Goals,N.Y. TIMES, May 5, 1997, at B9; Richard A. Posner, The Skin Trade, NEW REPUBLIC, Oct. 13, 1997, at 40 (reviewing BeyondAll Reason); Jeffrey Rosen, The Bloods and the Crits,NEW REPUBLIC, Dec. 9, 1996, at 27. 3. See, e.g., DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON (1997); Randall L. Kennedy, Racial Critiquesof Legal Academia, 102 HARV. L. REV. 1745, 1749 (1989); Mark Tushnet, The Degradationof ConstitutionalDiscourse,81 GEO. L.J. 251 (1992); see also Keith Aoki, The Scholarshipof Reconstructionand the Politics ofBaclash, 81 IOWA L. REV. 1467, 1471-72 (1996) (observing that Critical Race Theory has been the subject of "'attack' scholarship" designed "to preempt and shut down debate"). 4. There are, of course, some works that consider the relationship between immigration and race relations. See, e.g., Bill Ong Hing, Beyond the Rhetoric ofAssimilation and Cultural Pluralism:Addressing the Tension of Separatism and Conflict in an Immigration-Driven MultiracialSociety, 81 CAL. L. REV. 863 (1993). 5. PETER BRIMELOW, ALIEN NATION (1995). 1998] IMMIGRATION LAW AND RACE RELATIONS 1113 but also have suffered deportation, 6 indefinite detention, 7 and (...truncated)