Alien Nation Review: Yale Law Journal, May 1996 - (Part 4 of 4)

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Neckerman, `We'd Love to Hire Them, But. . ': The Meaning of Race for Employers, in The Urban Underclass 203, 204 (Christopher Jencks & Paul E. Peterson eds., 1991). For a vivid illustration of this point, see Mary C. Waters, BLACK Like Who? (forthcoming 1996) (finding West Indians preferred to African-americans as employees). (119.) See George J. Borjas, The Economic Benefits from Immigration, 9 J. Econ. Persp. 3, 10 (1995) (citing other studies). (120.) See Thomas Muller, Immigrants and the American City 166-85 (1993). (121.) See Elaine Sorensen & Frank D. Bean, The Immigration Reform and Control Act and the Wages of Mexican Origin Workers: Evidence from Current Population Surveys, 75 Soc. Sci. Q. 1, 16 (1994). (122.) After claiming that the post-1965 immigration has contributed to the economic woes of black workers, Alien Nation, supra note 1, at 173-75, Brimelow exhibits some caution, saying that it is "at least a possibility," id. at 175. His discussion is entirely one-sided on this point. Reviewing the studies in 1989, Robert Reischauer concluded that "careful and sophisticated analyses by a number of social scientists provide little evidence that immigrants have had any significant negative impacts on the employment situation of black Americans." Robert D. Reischauer, Immigration and the Underclass, 501 Annals Am. Acad. Pol. & Soc. Sci. 120, 120 (1989) (abstract). A recent study by the U.S. Bureau of Labor Statistics, however, finds that recent high levels of immmigration are depressing the wages of low-skilled workers. See Immigrants Contribute to Rising Gap Between Rich and Poor, FAIR Immigration Report, Feb. 1996, at 6 (citing David Jaeger, Skill Differentials and the Effect of Immigrants on the Wages of Natives (Bureau of Labor Statistics, U.S. Department of Labor Working Paper No. 273, 1995)). The study does not appear to have examined the effects of immigration specifically on low- and unskilled African-American workers. (123.) These possibilities are discussed in Frank D. Bean et al., Labor Market Dynamics and the Effects of Immigration on African Americans, in Blacks, Immigration and Race Relations (Gerald Jaynes ed., forthcoming 1996) (manuscript at 5-18, on file with author), which concludes that immigration into tight labor markets might reduce black unemployment, while immigration into loose ones might increase it. (124.) See Alien Nation, supra note 1, at 178-90, 211-18. (125.) Seee, g., Waters, supra note 118 (finding these values to be preferred by immigrants' employers and co-workers). (126.) Id. at 88-89, 145 (English proficiency); id. at 181 (illegitimacy); id. at 182-86 (crime). (127.) An estimated 75% of the aliens in federal prisons, compared to 56% of the U.S. citizens there, are incarcerated for drug-related charges. Criminal Aliens: Hearing Before the Subcomm. on International Law, Immigration and Refugees of the House Comm. on the Judiciary, 103d Cong., 2d Sess. 165 (1994) [hereinafter 1994 Criminal Aliens Hearing! (testimony of Kathleen Hawk, Director, U.S. Bureau of Prisons). (128.) Criminal Aliens in the United States: Hearings Before the Permanent Subcomm. on Investigations of the Senate Comm. on Government Affairs, 103d Cong., 1st Sess. 12 (1993) [hereinafter 1993 Criminal Aliens Hearing). (129.) See John Williams, The Criminal Alien Problem 1 n.2 (Oct. 20, 1995) (memorandum on file with author). (130.) A recent statistical study of foreign-born state inmates found that approximately 45% were illegal aliens. See Rebecca L. Clark et al., Fiscal Impacts of Undocumented Aliens: Selected Estimates for Seven States tbls. 3.2, 3.4 (1994). The INS estimates that 20% of foreign-born state inmates are not deportable at all. Removal of Criminal and Illegal Aliens: Hearings before the Subcomm. on Immigration and Claims of the House Judiciary Comm., 104th Cong., 1st Sess. (Mar. 23, 1995) (testimony of T. Alexander Aleinikoff, General Counsel, Immigration and Naturalization Service), available in LEXIS, News Library, Curnws File [hereinafter Aleinikoff Testimony]. This figure suggests that the remaining 35% of foreign-born inmates are deportable aliens who are not in illegal status. (131.) See 1994 Criminal Aliens Hearing, supra note 127, at 133 (statement of Rep. Richard H. Lehman). (132.) Aleinikoff Testimony, supra note 130. (133.) The data, such as they are, appear in Julian L. Simon, The Economic Consequences of Immigration 102-03 (1989). (134.) On the Dillingham Commission, see Maldwyn Allen Jones, American Immigration 152-57 (2d ed. 1992). (135.) See Simon, supra note 133, at 102-03. (136.) See, e.g., John Kifner, Immigrant Waves From Asia Brings an Underworld Ashore, N.Y Times, Jan. 6, 1991, at 1 (reporting on Asian gangs in New York). (137.) See, e.g., Clifford Krauss, Drug Arrests in Colombia Lead to Killings in Queens, N.Y Times, Nov. 25, 1995, at 1. (138.) See, e.g., Joseph P. Fried, Sheik and 9 Followers Guilty of a Conspiracy of Terrorism, N.Y Times, Oct. 2, 1995, at A1. (139.) See, e.g., Selwyn Raab, Influx of Russian Gangsters Troubles F.B.I. in Brooklyn, N.Y. Times, Aug. 23, 1994, at A1. (140.) See Steven A. Holmes, Large Increase in Deportations Occurred in '95, N.Y. Times, Dec. 28, 1995, at A1. (141.) See 1993 Criminal Aliens Hearing, supra note 128, at 77. (142.) The Border Patrol now includes 5000 officers, and Congress has instructed the INS to add 1000 more on the Mexican border. Migration News (Jan. 1996) (migrant news PLM <migrant@primal.ucdavis. edu>). (143.) For example, in the El Paso, Texas, sector of the U.S.-Mexico border, the INS in September 1993 implemented "Operation Hold-the-Line," in which Border Patrol officers were stationed every hundred yards or so along the border. See Joel Brinkley, A Rare Success at the Border Brought Scant Official Praise, N.Y. Times, Sept. 14, 1994, at A1. The deployment reduced apprehensions of illegals from 700 to around 200 per day. Wayne A. Cornelius et al., Introduction: The Ambivalent Quest for Immigrant Controls, in Controlling Immigration, supra note 16, at 3, 35. A 1994 study of "Operation Hold-the-Line," however, determined that the program had not deterred long-distance immigration, diverting such immigration instead to other crossing points along the border. James Bornemeier, El Paso Plan Deters Illegal Immigrants, L.A. Times, July 27, 1994, at A3, A15 (discussing report prepared by Frank Bean and others for U.S. Commission on Immigration Reform).

The INS has also staged simulations at the southern border of an immigration deluge provoked by an internal crisis in Mexico. Sam Dillon, U.S. Tests Border Plan in Event of Mexico Crisis, N.Y. Times, Dec. 8, 1995, at B16. (144.) Aleinikoff Testimony, supra note 130; see also Holmes, supra note 140, at D18 (detailing INS's increased efforts). (145.) See Espenshade, supra note 37, at 211-12 (citing data and reasons for failure of enforcement efforts). Espenshade points out that once an illegal immigrant has taken up residence in the interior, "the annual probability of being apprehended is roughly 1-2%." Id. at 212. Immigration control efforts in Europe have also been generally ineffective. See generally Controlling Immigration, supra note 16, at 143-97. (146.) See Robert Pear, Clinton to Ban Contracts to Companies that Hire Illegal Aliens, N.Y. Times, Jan. 23, 1996, at A12. (147.) Barry R. Chiswick & Paul W. Miller, The Endogeneity Between Language and Earnings: International Analyses, 12 J. Labor Econ. 246, 278-79 (1995). (148.) Alien Nation, supra note 1, at 88-89. (149.) Twenty-two states have already adopted "official English" laws. Joyce Price, English-Only Advocates Sense Momentum; See Passing Chance for Proposed Bills, Wash. Times, sept. 7, 1995, at A2 (listing 22 states). Senator Robert Dole has proposed such a rule at the federal level, id., and other presidential contenders will not be far behind. Indeed, President Clinton signed such a law for Arkansas when he was governor of that state. Campaign English from Senator Dole, N.Y Times, Sept. 10, 1995, [sections]4, at 16. While Dole originally pledged, if elected, to seek to eliminate federal support for bilingual education, see id., he subsequently toned down his rhetoric to permitting bilingual education programs "`that ensure that people learn English in a timely fashion,'" Margot Homblower, Putting Tongues in Cheek: Should Bilingual Education Be Silenced?, Time, Oct. 9, 1995, at 40, 42. Congress recently held hearings on English as the common language of the United States. House Holds Hearing on English as the Common Language, 72 Interpreter Releases 1542 (1995). (150.) Alejandro Portes puts the point this way:

[F]irst-generation immigrants are not regarded generally as poor, no matter what their objective

situation is, because they are seen as somehow different from domestic minorities. The same

is not true of their children who as U.S. citizens and full participants in American society, are

unlikely to use a foreign country as a point of reference or as a place to return to. Instead, they

will be evaluated and will evaluate themselves by the standards of their new country. Portes, supra note 103, at 15. (151.) Chiswick & Miller, supra note 147, at 278-79. In another paper based on Australian data, Chiswick and Miller show that "ethnic network" variables--particularly the existence of an ethnic press, proximity of relatives, and spouse's origin language--are more important than the mere fact of living in a minority-language enclave in explaining dominant-language fluency. Barry R. Chiswick & Paul W. Miller, Ethnic Networks and Language Proficiency Among Immigrants (1995) (unpublished manuscript, on file with author). (152.) In a 1995 survey, 81% of immigrants living in the United States for more than 20 years report using "English at home most often"; for those in their first decade, the figure is 49%. See The Immigrant Experience, supra note 68, at 103. (153.) Alejandro Portes & Richard Schauffler, Language and the Second Generation: Bilingualism Yesterday and Today, 28 Int'l Migration Rev. 640, 641, 643 (1994) (citing sources). (154.) id. at 647. The authors state that "self-reports of language ability, unlike other individual characteristics, are both reliable and valid." Id. at 646 (citing sources). (155.) Id. at 647, 652. Indeed, the authors note that because fluent bilingualism is increasingly an economic asset, the loss of parental-language fluency may pose a greater risk for today's second generation than the nonproblem of inadequate English. Id. at 659. This preference for English was even stronger among Cuban children, who were educated in bilingual schools at the core of an ethnic enclave. Id. at 652. Brimelow does cite (incorrectly, see Alien Nation, supra note 1, at 306 n.4) a study of second-generation schoolchildren in the San Diego and Miami areas that found that Mexican-American children, including those who claimed to be proficient in English, nevertheless retained and preferred to speak the parental language (Spanish) to a much greater degree than children from other nationality groups did. See Ruben G. Rumbaut, The Crucible Within: Ethnic Identity, Self-esteem, and Segmented Assimilation Among Children of Immigrants, 28 Int'l Migration Rev. 748, tbl. 3 at 768 (1994). (156.) Despite the much higher Spanish preference rate of the Mexican-American children in the Rumbaut study, they are not really an exception. Their English fluency was only slightly lower than some foreign-language groups and was higher than several others, especially some Asian groups. Rumbaut, supra note 155, tbl. 3 at 768. Spanish-language speakers, especially Mexicans, tend to have higher parental-language retention rates, especially if they live near the border, interact with frequent border crossers, live in a community constantly being replenished by first-generation Spanish-speaking immigrants, or adopt an adversarial stance toward Anglo society. By the third generation, however, virtually everyone is monolingual. See Alejandro Portes & Ruben G. Rumbaut, Immigrant America: A Portrait 183 (1990). (157.) Alien Nation, supra note 1, at 181. (158.) Charles Hirschman, Problems and Prospects of Studying immigrant Adaptation from the 1990 Population Census: From Generational Comparisons to the Process of "Becoming American," 28 Int'l Migration Rev. 690, 708-10 (1994). The rates among Asian refugees, however, are much higher than for other Asians. Id. at 710. (159.) Alien Nation, supra note 1, at 184. (160.) Hirschman, supra note 158, at 711. (161.) See Frank D. Bean et al., Socioeconomic and Cultural Incorporation and Marital Disruption Among Mexican Americans (Sept. 1995) (unpublished paper, on file with author). (162.) Id. at 26-27. Frank Bean and his colleagues attribute the rise in divorce rates in the second and third generations to the special uncertainties and vulnerabilities surrounding the immigration experience in the United States that keep families together in the first generation. Id. at 25-26. Even in the third generation, the Hispanic divorce rate does not exceed that of U.S. natives, whereas the black divorce rate is higher than the U.S. average. Nevertheless, this dynamic could have worrisome implications for Mexican-American progress in the United States. As the authors put it, "The greater marital stability of lower socioeconomic status immigrants, when included in average rates of marital disruption, leads to what some might term a falsely rosy picture." Id. at 26. (163.) See Alejandro Portes & Min Zhou, The New Second Generation: Segmented Assimilation and Its Variants, 530 Annals Am. Acad. Pol. & Soc. Sci. 74, 74 (1993). (164.) Portes, supra note 103, at 17 (citations omitted). (165.) Id. at 23. (166.) Portes and Zhou have found empirical evidence for this form of self-consciously delayed assimilation among the Cuban and Punjabi Sikh enclaves in South Florida and California, respectively, contrasting the experiences of these groups to the less protected, downwardly assimilating Haitians in Miami, and Mexicans and Mexican-Americans in central California. See Portes & Zhou, supra note 163, at 87-91. (167.) See Bean et al., supra note 101, at 76-77. The Mexican-American experience in educational attainment, furthermore, suggests that continued progress beyond the second generation is by no means assured. See supra note 101 and accompanying text. (168.) See Alein Nation, supra note 1, at 193-95. For another discussion of this possibility, see Leon Bouvier, What if ...? Immigration Decisions: What Could Have Been, What Could be 15 (1994). (169.) See Alien Nation, supra note 1, at 195-201. As precedent, Brimelow points to the brief rise of the Know-Nothings' American party in the 1850s. He emphasizes that the Know-Nothings, while rabidly anti-Catholic, did not in fact seek to restrict immigration and placed a higher priority on abolition. Id. at 12-13, 200. (170.) See Steven A. Holmes, House Panel Keeps Intact Bill to Restrict Immigration, N.Y. Times, Oct. 12, 1995, at A20 (discussing Republican bill to restrict legal immigration); Robert Pear, Clinton Embraces a Proposal to Cut Immigration by a Third, N.Y. Times, June 8, 1995, at B10 (reporting President Clinton's endorsement of proposal by Commission on Immigration Reform to reduce legal immigration by one-third). (171.) See Alien Nation, supra note 1, at 123-33. (172.) The term "imagined" is taken, of course, from Benedict Anderson's coinage. see Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (2d ed. 1991). (173.) See Alien Nation, supra note 1, at 230-32. Brimelow defines the "New Class" (a term he explicitly borrows from Irving Kristol, see Irving Kristol, Two Cheers For Capitalism 26-31 (1978)) as "the professionals who run and benefit from the state ... and its power to tax." Id. at 230. For an avowedly liberal critique of the balkanizing tendencies of contemporary society that rejects this distinction between the "new class" and other powerful class interests, see Lind, supra note 13, at 327. (174.) Alien Nation, supra note 1, at 219. (175.) Id. (176.) Indeed, the fact that many of the new immigrants are refugees fleeing cruel regimes in harsh societies, which Brimelow insists was not true in the good old days, id. at 246, suggests that the newcomers' loyalties are, if anything, less conflicted than those of their predecessors. (177.) See The Immigrant Experience, supra note 68, at 101 (relating 1995 survey data from June 1995 that indicate that immigrants' belief in American values is as great or greater than that of natives). (178.) Alein Nation, supra note 1, at 219. (179.) Brimelow fails to mention another policy-racially defined and gerrymandered legislative districting--that I believe is perhaps even more dangerous because it reinforces racialist thinking and creates perverse incentives for political behavior, and because it is especially difficult to dislodge once it is in place. See infra notes 208-12 and accompanying text. (180.) See supra notes 153-56 and accompanying text.

(181.) For instances of this ideological subordination, see, for example, Stephanie Gutmann, The Bilingual Ghetto: Why New York's Schools Won't Teach Immigrants English, City J., Winter 1992, at 29; Abigail M. Thernstrom, E Pluribus Plura--Congress and Bilingual Education, Pub. Interest, summer 1980, at 3. I say "presumed" because of claims that assignment to bilingual classes sometimes reflects nothing more than the school's ascription of ethnicity to the child based on her surname. For an example of this practice, see Gutmann, supra, at 29. (182.) See Toby L. Bovitz, Bilingual Education in New York No Longer Serves Students, N.Y. Times, Mar. 23, 1995, at A24 (letter to editor from bilingual psychologist in school system); Sam Dillon, Report Faults Bilingual Education in New York, N.Y. Times, Oct. 20, 1994, at A1; Gutmann, supra note 181, at 29; Jacques Steinberg, Lawsuit Is Filed Accusing State of Overuse of Bilingual Classes, N.Y. Times, Sept. 19, 1995, at B6 (reporting suit by parents' group). But see Mafia Newman, Schools are Likely to Stop Automatic English Testing, N.Y. Times, Feb. 27, 1996, at B3 (describing plan to terminate automatic testing of children with Spanish surnames for possible placement in bilingual programs). (183.) Legislation pending in Congress would greatly restrict or even eliminate bilingual education. See, e.g., H.R. 1005, 104th Cong., 1st Sess. [sections] 3(a) (1995) (repealing former Bilingual Education Act, 20 U.S.C. [subsections] 3281-3341 (1994)); see also Homblower, supra note 149, at 42 (detailing congressional and administration positions on bilingual education). To the extent that these changes would eliminate even genuinely transitional, short-term bilingual education entirely, they may go too far. (184.) Canada, for example, has made multiculturalism a constitutionally-protected value. Can. Const. (Constitution Act, 1982), Pt. I (Canadian Charter of Rights and Freedoms), [sections] 27 ("This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canada."). The U.S. Supreme Court has also protected the right of religious and ethnic minorities to preserve their cultural practices. Eg., Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925) (invalidating Oregon law requiring children between ages of eight and 16 to attend public school); Meyer v. Nebraska, 262 U.S. 390 (1923) (striking down Nebraska statute prohibiting teaching of languages other than English and instruction in languages other than English). (185.) Glazer, supra note 60, at 46-47. (186.) For a spirited attack on this "ideal of authenticity" and on the contrived character of many multiculturalists' symbols, see Lind, supra note 13, at 122-27. (187.) For alarming and sometimes tragi-comical examples by insightful observers, see Richard Bernstein, Dictatorship of Virtue: Multiculturalism and the Battle for America's Future (1994); Lynne V. Cheney, Telling the Truth: Why Our Culture and Our Country Have Stopped Making Sense--and What We Can Do About It (1995). (188.) See, e.g., Mary Lefkownz, Not out of Africa: How Afrocentrism Became an Excuse To Teach Myth as History (1996). (189.) See, e.g., Lind, supra note 13, at 118-37; Mary C. Waters, Ethnic Options: Choosing Identities in America 16-51 (1990); Christopher A. Ford, Administering Identity: The Determination of "Race" in Race-Conscious Law, 82 Cal. L. Rev. 1231, 1239-40 (1994). (190.) The percentage of white-identifying Hispanics depends in pan on the structure of the survey instrument and the methodology of the questioner. Bureau of the Census, U.S. Dep't of Commerce, Current Population Reports, Series P23-182, Exploring Alternative Pace-Ethnic Comparison Groups in Current Population Surveys 2-3 (1992). For an historical survey of the changing racial and ethnic questions in the census, including the mutability of Hispanic self-identification, see Stephan Thernstrom, American Ethnic Statistics, in Immigrants in Two Democracies: French and American Experience 80, 100 n.5 (Donald L. Horowitz & Gerard Noiriel eds., 1992) (reporting that 21.1% of people who identified with Spanish-origin group in 1971 gave different origin just one year later; 12% of all those who self-identified as Hispanic had abandoned it). (191.) For these exogamy data, see Frank D. Bean et al., The Changing Demography of U.S. Immigration Flows: Patterns, Projections, and Contexts 13 (July 1995) (unpublished paper presented at Conference on German-American Migration and Refugee Policies, on file with author). (192.) See id. tbl. 4. (193.) In a curious, brief discussion of interracial marriage, he acknowledges that it would tend to dissipate the Pincers' pressure and then adds the following "BUT" (italics and capitalization in original): "while more Hispanics are intermarrying, the proportion of all Hispanic marriages has fallen, swamped by the sheer growth of the Hispanic population." Alien Nation, supra note 1, at 274. The meaning and relevance of this observation escape me. (194.) Bean et al., supra note 191, at 14. (195.) See Barry Edmonston et al., Ethnicity, Ancestry, and Exogamy in U.S. Population Projections (Apr. 1994) (unpublished paper presented before Population Association of America, on file with author). (196.) See Bean et al., supra note 191, at 14-15 (summarizing findings in Edmonston et al., supra note 195, at 28). The actual number would depend on how such individuals self-identify in reporting to the census. This in turn may depend on how the Census Bureau resolves the issue of whether a mixed ancestry category should be established. On the Census Bureau's approach to this question, see Lawrence Wright, One Drop of Blood, New Yorker, July 25, 1994, at 46. (197.) For two discussions of this question, see Ford Found., Changing Relations: Newcomers and Established Residents IN U.S. Communities (1993); Opening the Door, supra note 55. The first of these would change the focus from immigrants' assimilation to their accommodation, defined as "a process by which all sides in a multifaceted situation, including established residents and groups at different stages of settlement, find ways of adjusting to and supporting one another." Ford Found., supra, at 4. To the extent that this change is an exhortation to receiving communities to welcome immigrants, it is benign, but to the extent that it is meant to shift the initiative for, and the principal burdens of, assimilation from immigrants to the established community, it is probably misguided and will engender resistance. (198.) See e.g., Paul M. Banett, Pentagon Move to Hurt Minority Builders, Wall St. J., Oct. 25, 1995, at B2 (reporting that Defense Department, Small Business Administration, and other agencies are curtailing affirmative action programs); Steven A. Holmes, White House to Suspend a Program for Minorities, N.Y. Times, Mar. 8, 1996, at A1 (ordering three-year suspension of minority and female set-aside programs for contracts). (199.) The struggle to limit affirmative action will be extended and will proceed differently in different policy domains. See, e.g., B. Drummond Ayres Jr., Efforts to End Job Preferences Are Faltering, N.Y. Times, Nov. 20, 1995, at A1. My criticisms of affirmative action do not refer to policies that require employers, universities, and other entities to engage in more broad-ranging recruitment processes, which I strongly support. These policies are not seriously in question. Rather, I am concerned with policies that either require, or as a practical matter demand, quotas or preferences based (200.) See Peter H. Schuck, The New Immigration and the Old Civil Rights, Am. Prospect, Fall 1993, at 102, 108-11. (201.) No one can gauge precisely the overall social effects of race-based affirmative action on its supposed beneficiaries. There are, however, reasons to believe that the net effects are either inconsequential or negative.

For example, Thomas Sowell, who has written extensively on affirmative action both in the United States and abroad, has compared the pre- and postaffirmative action periods and found that black employment gains were actually greater during the earlier period. Thomas Sowell, Preferential Policies: An International Perspective 113, 115 (1990). In a recent study comparing protected minorities' employment patterns in private firms that adopted either "identity-conscious" (making race relevant) or "identity-blind" (merit-based) personnel decisions, the authors (both strong affirmative action proponents) found that by most measures, improvement in the groups' employment status was not affected by identity-conscious interventions. Alison M. Konrad & Frank Linnehan, Formalized HRM Structures: Coordinating Equal Employment Opportunity Or Concealing Organizational Practices?, 38 Acad. Mgmt. J. 787 (1995).

On the negative side, members of protected groups whose genuine, hard-won achievements on the job and in universities are unfairly depreciated because of the supposed favoritism ascribed to affirmative action have suffered much personal indignity, reputational harm, and psychic injury as a result. The social damage to relations between the races has been incalculably great, in my view. According to a recent study, white opposition to affirmative action now encompasses the liberal core of the Democratic party; it is just as strong among those most committed to racial equality as among those least committed to such values. See Martin Gilens et al., Affirmative Action and the Politics of Realignment 3-4 (Apr. 1995) (unpublished conference paper prepared for annual meeting of Midwest Political Science Association, on file with author). One fervently hopes that this damage is not irreversible. (202.) The beneficiaries of this program, after all, come from countries that were unfairly favored by the pre-1965 immigration policy. For a general critique of diversity programs, including this one, see Stephen H. Legomsky, Immigration, Equality and Diversity, 31 Colum. J. Transnat'l L L. 319, 330-35 (1993). (203.) Many of these countries, of course, were advantaged by the pre-1965 law. In fact, the chief beneficiaries of this program, as was intended at the time of enactment, are the Irish, for whom 41% of the diversity visas were reserved during 1992-94. See Schuck, supra note 96, at 71-72. (204.) See Schuck, supra note 200, at 108-11 (noting invidious group comparisons invited by race-based affirmative action, and favoring class-based remedies instead); see also Richard D. Kahlenberg, Equal Opportunity Critics, New Republic July 17 & 24, 1995, at 20 (noting that some opponents of race-based affirmative action are beginning to embrace class-based preferences). Class-based affirmative action also has its critics, see, e.g., Michael Kinsley, The Spoils of Victimhood, New Yorker, Mar. 27, 1995, at 62, 65-66, and would be difficult to implement, see, e.g., Sarah Kershaw, California's Universities Confront New Diversity Rules, N.Y. Times, Jan. 22, 1996, at A10 (discussing problems in applying class-based criteria). (205.) see Nathan Glazer, Affirmative Discrimination: Ethnic Inequality and Public Policy 168-205 (1975); Nathan Glazer, Immigrants and Education, in Clamor at the Gates: The New American Immigration 213 (Nathan Glazer ed., 1985) [hereinafter Clamor at the Gates]; Ivan Light, Immigrant Entrepreneurs in America: Koreans in Los Angeles, in Clamor at the Gates, supra, at 16 1; Peter I. Rose, Asian Americans: From Pariahs to Paragons, in Clamor at the Gates, supra, at 181; Schuck, supra note 200, at 107. For a microscopic view of these invidious comparisons as they operate in the workplace, see generally Waters, supra note 118. (206.) See, e.g., Ford, supra note 189, at 1234 ("However analytically `soft' a particular classification may be, making it a centerpiece of government resource-allocation will require that it be `hardened' dramatically."); Wright, supra note 196, at 46. (207.) Alien Nation, supra note 1, at 65 (emphasis omitted). This possibility seems especially great among Asian-Americans, who tend to be more conservative politically than African-Americans. (208.) 42 U.S.C. [subsections] 1971-1973p (1988 & Supp. 1993). (209.) See, e.g., Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy 41-70 (1994); Carol M. Swain, Black Faces, Black Interests: The Representation of African Americans in Congress, at vii-ix, 193-225 (1993); Abigail Thernstrom, Whose Votes Count?: Affirmative Action and Minority Voting Rights (1987); James F. Blumstein, Racial Gerrymandering and Vote Dilution: Shaw v. Reno in Doctrinal Context, 26 Rutgers L.J. 517 (1995); Schuck, supra note 200, at 105-11; Peter H. Schuck, What Went Wrong with the Voting Rights Act, Wash. Monthly, Nov. 1987, at 51. Other scholars have enthusiastically endorsed it. See, e.g., Bernard Grofman et al., Minority Representation and the Quest for Voting Equality 131-37 (1992); Luis R. Fraga, Latino Political Incorporation and the Voting Rights Act, in Controversies in Minority Voting: The Voting Rights Act in Perspective 278 (Bernard Grofman Chandler Davidson eds., 19,92) [hereinafter Controversies in Minority Voting]; Pamela S. Karlan, The Rights to Vote: Some Pessimism About Formalism, 71 Tex. L. Rev. 1705, 1737-40 (1993); Allan J. Lichtman, Redistricting, in Black and White, N.Y. Times, Dec. 7, 1994, at A23. (210.) See, e.g., Juan Williams, Blacked Out in the Newt Congress: The Black Caucus Regroups as Jesse Mulls a Third Party Bid, Wash. Post, Nov. 20, 1994, at C1. (211.) The leading cases are Shaw v. Reno, 113 S. Ct. 2816 (1993), and Miller v. Johnson, 115 S. Ct. 2475 (1995). (212.) See Hugh Davis Graham, Voting Rights and the American Regulatory State, in Controversies in Minority Voting, supra note 209, at 177, 195-96. On growing Asian-American political activism, see Steven A. Holmes, Anti-Immigrant Mood Moves Asians to Organize, N.Y. Times, Jan. 3, 1996, at Al. (213.) Alien Nation, supra note 1, at 219 (emphasis omitted). The key, he writes, is "[a]voiding the Romans' mistake of diluting their citizenship into insignificance." Id. at 267. (214.) Id. at 264-67. (215.) See Schuck Testimony, supra note 3; Supplemental Letter, supra note 3; see also Neil A. Lewis, Bill Seeks to End Automatic Citizenship for All Barn in the U.S., N.Y. Times, Dec. 14, 1995, at A26. (216.) U.S. Const. amend. XIV, [sections] 1. (217.) Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity 5, 72-89 (1985); see also Peter H. Schuck, Membership in the Liberal Polity: The Devaluation of American Citizenship, 3 Geo. Immigr. L.J. 1 (arguing that birthright citizenship and minimal incentives for aliens to naturalize have lowered value of U.S. citizenship). (218.) Schuck & Smith, supra note 217, at 90-115. (219.) The most probing criticisms--although not persuasive in our view--are found in Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders and Fundamental Law (forthcoming 1996) (manuscript at 473-535, on file with author); David A. Martin, Membership and Consent: Abstract or Organic?, 11 Yale J. Int'l L. 278 (1985). But see Peter H. Schuck & Rogers M. Smith, Membership and Consent: Actual or Mythic? A Reply to David A. Martin, 11 Yale J. Int'l L. 545 (1986). (220.) See Schuck & Smith, supra note 217, at 97-100, 136-37. (221.) Id. at 99, 135. Our book was published well before Congress enacted such an amnesty in the 1986 IRCA legislation. We recommended such a measure in the book. (222.) See discussion supra note 149 and accompanying text; see also Montana Law on English, N.Y. Times, Apr. 3, 1995, at B8 (describing law that makes English official language of state government). But see Court Strikes Language Law, N.Y. Times, Dec. 9, 1994, at A18 (relating decision of Ninth Circuit that invalidated on First Amendment grounds amendment to Arizona Constitution requiring state employees to speak only English on job). (223.) See Jack Citrin, Language Politics and American Identity, Pub. Interest, Spring 1990, at 96, 108 (The instrumental consequences of state and local 'official English' legislation are virtually nil, and in the absence of a genuine threat to the status of English, the formal subordination of other languages is mainly divisive."). (224.) For a description of the Americanization movements of the first two decades of the twentieth century, see Philip Gleason, American identity and Americanization, in Harvard Encyclopedia, supra note 82, at 31, 39-41, 57-58 (entry and bibliographic sources). (225.) Such classes are chronically over-subscribed, and the waiting lists are long. David Leanhardt, Immigrants' Hopes Converge on English Class: Eager to Break Language Barrier Would-Be Students Overwhelm Programs for Adults, Wash.

Post, July 25, 1994, at B1; Deborah Sontag, English as a Precious Language: immigrants Hungry for Literacy Find That Classes Are Few, N.Y. Times, Aug. 29, 1993, at 29. (226.) The current INS administration is already instituting such a change, with some success. Its timing could hardly be better. For reasons having little to do with the INS's new effort and much to do with the threat to legal immigrants' public benefits posed by pending legislation and an imminent change in Mexico's own citizenship law, see Sam Dillon, Mexico Woos U.S. Mexicans, Proposing Dual Nationality, N.Y. Times, Dec. 10, 1995, [sections] 1, at 16 (discussing proposed Mexican constitutional amendment that would permit Mexicans living in United States to retain Mexican nationality upon becoming U.S. citizens), a stunning increase in the number of naturalization petitions is now occurring. See, e.g., Louis Freedberg, Citizenship Wave Surprises INS. Applications Pour in as Immigrants Act to Protect Benefits, S.F. Chron., Apr. 13, 1995, at A1, A23 (detailing increase in naturalization petitions in INS'S San Francisco district and in United States). The total for 1995 will probably exceed one million.

One presumes that Brimelow opposes this development, since he thinks that naturalization should be a far more protracted process and therefore applauds the Know-Nothings' battle cry: "Nationalize, then naturalize." Alien Nanon, supra note 1, at 12-13, 265. I believe that the current five-year minimum period, which is already longer than those in a number of immigrant nations, has served us well. In any event, most naturalizing immigrants take longer than five years. See 1994 INS Statistical Yearbook, supra note 29, tbl. K at 128. (227.) For a recent, thoughtful exploration of some normative issues concerning citizenship, see the papers on that subject in Symposium, immigration Law and the New Century: The Developing Regime, 35 Va. J. Int'l L. 1 (1994). (228.) See Alien Nation, supra note 1, at 232, 264-67. (229.) For scholars advocating open borders, or at least a strong presumption in favor of them, see, for example, Bruce A. Ackerman, Social Justice in the Liberal State 89-95 (1980); Joseph H. Carens, Aliens and Citizens: The Case for Open Borders, 49 Rev. Pol. 251 (1987); R. George Wright, Federal Immigration Law and the Case for Open Entry, 27 Loy. L.A. L. Rev. 1265 (1994). (230.) Even the group Negative Population Growth, which is radical enough to want to reduce the U.S. population to 125-150 million (about half its present size), proposes legal immigration of up to 100,000 per year. See advertisement in New Republic, Oct. 23, 1995, after 37. But see Lind, supra note 13, at 206-07 (discussing proposals for increased immigration). (231.) See Gleason, supra note 224, at 39-41. (232.) For an interesting effort by one immigrant to define Americanism, see Ted Morgan, On Becoming American (1978). (233.) For one such effort that strongly eschews "Anglo-centric" conceptions of the American nation (such as Brimelow's), see Lind, supra note 13, at 352-88. (234.) I say "little," not none. Aliens' drug-related crime, see supra notes 127-46 and accompanying text, is the principal exception. (235.) He tells us that he and his brother "gave it an A+." Alien Nation, supra note 1, at 221. (236.) He says that "we still give it an A+" but then adds "what's left of it." Id. By this qualification he presumably means the part that the new immigrants have not yet destroyed. (237.) A March 1995 Census Bureau report indicates that 30.8% of families with children were headed by a single parent in 1994; the corresponding rate was 13% in 1970. Of the 11.5 million such families, the vast majority--9.9 million--were headed by women. 2-Parent Families Increasing in U.S., N.Y. Times, Oct. 17, 1995, at A17. (238.) See supra notes 160-67 and accompanying text. Other American (mis)behaviors also seem to rub off on immigrants. For example, the prostate cancer rate among Japanese men increases markedly when they immigrate to the United States, apparently because of their change to a high-fat diet here. The prostate cancer rate per 100,000 increased from eight for men in Japan to 30 for first-generation Japanese immigrants in Los Angeles and to 34 for second-generation immigrants; among white men in Los Angeles it is 66. Jane Brody, Low-Fat Diet in Mice Slows Prostate Cancer, N.Y. Times, Oct. 18, 1995, at C13. (239.) The per capita gross national product increased almost 60% in constant dollars between 1965 and 1993; per capita disposable income increased almost 75% during the same period. 1994 U.S. Statistical Abstract, supra note 55, tbl. 691. (240.) See sources cited supra note 17. (241.) See, e.g., Muller, supra note 120, at 151-60; Louis Winnick, New People in Old Neighborhoods: The Role of New Immigrants in Rejuvenating New York's Communities (1990). (242.) Brimelow's narrative of decline is commonplace today. It is also told by some who would probably agree with him on little else. See, e.g., Charles A. Reich, Opposing the System (1995). (243.) Alien Nation, supra note 1, at 187-90. (244.) For a detailed discussion of these changes, see generally Gregg Easterbrook, A Moment on the Earth: The Coming Age of Environmental Optimism (1995); Aaron Wildavsky, But Is it True? A Citizen's Guide to Environmental Health and Safety Issues (1995); The True State of the Planet: Ten of the World's Premier Environmental Researchers in a Major Challenge to the Environmental Movement (Ronald Bailey ed., 1995). (245.) 42 U.S.C. [subsections] 1971-1973p (1988 & Supp. 1993). (246.) 29 U.S.C. [subsections] 621-634 (1988 & Supp. 1993). (247.) 42 U.S.C. [subsections] 6101-6107 (1988). (248.) 20 U.S.C. [subsections] 1400-1485 (1994). (249.) 42 U.S.C. [subsections] 12101-12213 (Supp. 1993). (250.) Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 107 (codified at scattered sections of 42 U.S.C.). (251.) Indeed, one can argue that it is too responsive to special interests of all kinds and insufficiently deliberative. (252.) See Adam Clymer, With Political Discipline, It Works Like Parliament, N.Y. Times, Aug. 6, 1995, [sections] 4, at 6 (analyzing high level of party discipline among congressional Republicans and resulting improvement in discipline among congressional Democrats). (253.) See supra note 239. (254.) See Daniel T. Slesnick, Gaining Ground: Poverty in the Postwar United States, 101 J. Pol. Econ. 1, tbl. 3 at 16 (1993). As the share of the poor has diminished, moreover, the ranks of the wealthy have swelled. According to one estimate, the number of families with earnings of over $100,000 in constant dollars has increased from slightly more than 1 million in 1967 to 5.6 million in 1993. David Frum, Welcome, Nouveaux Riches, N.Y Times, Aug. 14, 1995, at A15. For a recent account of the improved living conditions of the rural South Carolina poor between the 1960s and today, see Dana Milbank, Up from Hunger: War on Poverty Won Some Baules as Return to Poor Region Shows, Wall St. J., Oct. 30, 1995, at Al. (255.)For an account of this development, see R. Shep Melnick, Between the Lines: Interpreting Welfare Rights 183-232 (1994). The quality of life for the most destitute Americans, including the homeless and panhandlers, has improved dramatically as well. See Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 Yale L.J. 1165, 1190-91, 1203-04 (1996). (256.) John C. Weicher, Private Production: Has the Rising Tide Lifted All Boats?, in Housing America's Poor 45, 46 (Peter D. Salins ed., 1987). The data also indicate that blacks have shared in these improvements:

The percentage of black households lacking complete plumbing plunged . . . and the percentage

living with more than one person per room dropped from 28.3% in 1960 to 9.1% in

1980.... The available data indicate that these auspicious trends have continued since 1980.

The residential situation of the institutionalized poor has also improved as prisons, mental

hospitals, and similar accommodations have become much more livable. Robert C. Ellickson, The Untenable Case for an Unconditional Right to Sheiter, 15 Harv. J.L. & Pub. Pol. 17, 27 (1992) (footnotes omitted). (257.) 1994 U.S. Statistical Abstract, supra note 55, tbl. 114. (258.) Id. tbl. 120. The decline was almost as rapid for blacks and other nonwhites. Id. 259. Steven A. Holmes, A Generally Healthy America Emerges in a Census Report, N.Y. Times, Oct. 13, 1994, at B13. (260.) The inadequacy of many of the dominant measures of public and private wealth, income, and consumption is an old complaint. See, e.g., Peter Passell, Economic Scene, N.Y. Times, Oct. 12, 1995, at D2 (reviewing previous and current criticisms of national income accounting). (261.) The difficulty of this question is not eased much by A Tale of Ten Cities: Immigration's Effect on the Family Environment in American Cities, a report coauthored by demographer Leon Bouvier and Scipio Garling and published by the Federation for American Immigration Reform in November 1995. Federation for American Immigration Reform, A Tale of Ten Cities: Immigration's Effect on the Family Environment in American Cities (1995). This report compares the quality of life in five pairs of matched cities, each pair of which includes a high- and a low-immigration city. The report finds in the low-immigration cities a much better quality of life, as measured by nine categories of variables: education, income, occupation, home life, housing, cultural adaptation, crime, community, and health. Comparisons of this kind, however, usually suffer from methodological weaknesses that make causal inferences highly problematic, especially the inability to control for the many variables that make the paired cities different for nonimmigration reasons. For a critique of the methodology of this report, see John E. Berthoud, FAIR's "A Tale of Ten Cities": A Fair Analysis? (Nov. 1995) (unpublished report by Vice-President of Alexis de Tocqueville Institution, on file with author). In addition to this serious problem, A Tale of Ten Cities selected high-immigration cities with large concentrations of illegal aliens, which inevitably distort the data. It also ignored the fact that, while most immigration-related costs are borne locally, most immigration-generated benefits (e.g., increased tax revenues and economic efficiency) are realized at higher levels.

(dagger) Simeon E. Baldwin Professor of Law, Yale Law School. I wish to acknowledge the valuable comments on an earlier draft by Frank Bean, Boris Bittker, Kevin Johnson, Stephen Legomsky, David Martin, Dorothy Nelkin, Gerald Neuman, Stephan Thernstrom, and the participants in a faculty workshop at the Washington University School of Law on October 24, 1995.

Review Grade: C