The Conservative Attack on Birthright Citizenship

About Sherrilyn A. Ifill

CREDIT: (c) Jim Morin

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

United States Constitution, Amendment XIV, Section 1

Among the many low moments of Republican leadership last year, the call by Sen. Lindsey Graham (R-SC) for hearings on a constitutional amendment to repeal the birthright citizenship provisions of the 14th Amendment to the Constitution was among the most dispiriting.[i] Back in 2007, the National Council of La Raza had honored Graham for his commitment to finding solutions to the immigration issue. He had played the responsible grown up among his Republican colleagues at the Senate confirmation hearings of Supreme Court Justices Sonia Sotomayor and Elena Kagan.

But with the rise of the Tea Party and its increasingly ruthless attempts to purge Republicans of other persuasions from party leadership, Graham seemed anxious to prove his conservative bona fides. He argued that birthright citizenship had encouraged Mexican women to come to the United States to have “anchor babies,” who would enable the parents to remain in the country legally. “It’s called ‘drop and leave,’” Graham explained.

Graham’s evocation of a ruthless Mexican woman who breeds for the purpose of gaining privileges and immunities was unaccompanied by facts, statistics, or even one verifiable story. But in the fantasy world where affirmative action underachievers, welfare queens, Manchurian candidates, and anchor babies appropriate resources from deserving Americans, facts don’t matter. Reactionary rhetoric, bedecked with catchy phrases that insult immigrant families, is a surefire way to demonstrate conservative allegiance. Graham’s defection to the fringes of the immigration debate provided a patina of legitimacy to attacks on the birthright citizenship provisions of the Constitution—which had previously come from far beyond the mainstream. Among those advocating a repeal, some argued that Congress needn’t bother with amending the Constitution—a simple statute would do. Others suggested that birthright citizenship could be denied as a matter of state law, without regard either to the Constitution or federal statutes.[ii]

In the United States, legislation that targets groups based on racial identity or national origin is subject to the most rigid scrutiny. It is unconstitutional unless it is narrowly tailored to serve a compelling governmental interest. The challenge to birthright citizenship is repugnant on several grounds: it stigmatizes the children of undocumented immigrants. It is targeted at a specific racial/ethnic group—Latinos—and at a specific nationality—Mexicans. The movement to repeal—and mainstream acceptance of its legitimacy—has grown up in a context in which members of far-right groups feel emboldened to violently attack Latinos in border states, all the while cloaking themselves in the language of “security” and “border control.”[iii]

But facts do matter. So does law. Both the facts and the law demonstrate that arguments calling for a repeal of birthright citizenship cannot be supported by the history leading up to the passage of the 14th Amendment, the intent of the Framers who drafted it, or the Supreme Court’s interpretation of the birthright citizenship provision.

The Case That Started the Civil War

The 1857 Supreme Court case Dred Scott v. Sanford has been called the case that started the Civil War. In it, the court, led by Chief Justice Roger Taney of Maryland, held that Blacks “are not. . . and were not intended to be included under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens.”[iv] The decision was sweeping in its scope. It foreclosed citizenship rights for slaves and stripped free Blacks (many of whom were property owners and even voters in the North) of their citizenship.

After the Civil War, Black Codes—local laws that created a labor-contract system that forced Black families into indentured servitude, limited Black access to the justice system, and restricted Black movement—threatened to make Blacks “slaves in everything but name,” in the words of W.E.B. DuBois.[v] (In the restrictions the Black Codes placed on where Blacks could live and work, they resemble today’s statutes that attempt to regulate Latinos’ access to jobs and home rental.) Under the Black Codes, newly freed slaves were “required to reside on and cultivate the soil without the right to purchase or own it[,] . . . were excluded from many occupations of gain and were not permitted to give testimony in the courts of any case where a white man was a party,” explained the Supreme Court in one case.[vi] By maintaining the former slaves as a servile class, one correspondent observed that Southerners were “determined to do by policy what they had failed to do with arms.”[vii]

Nevertheless the use of arms by Southerners constituted its own problem: violence by intransigent Southerners directed at both former slaves and Union officials suggested that without the presence of Union soldiers in the South, the peace was precarious indeed. Violence was encouraged by Southern legislators, who exhorted their constituents to resist “acts of Congress … by the bayonet.”[viii] The loyalty of the South to the Union remained in question. Bombastic secessionist rhetoric continued unabated.

Any attempt to understand the meaning and intent of the provisions of the 14th Amendment must be made with the knowledge of this historical context. The physical battles of the Civil War were over, but the legislative war was yet to be won. Neither the loss of 600,000 lives in the Civil War, Lincoln’s Emancipation Proclamation, nor even the passage of the 13th Amendment, which abolished slavery, could restore or create citizenship status for former slaves and free Blacks. By the summer of 1866, Republicans—both moderate and radical—understood that strong legislation protecting the rights of newly freed Blacks would be necessary to ensure that the war had not been fought in vain. Before settling the debates about the meaning of “privileges and immunities” or even “equality” as used in the 14th Amendment, the Reconstruction Congress understood that, first and foremost, the newly freed slaves, and indeed all Blacks, needed to be entitled to citizenship on the same terms as Whites. As a result, the birthright citizenship provision was the first and least controversial provision of the 14th amendment. It was also the most important.

For this reason, attacks on the birthright citizenship provision not only target Latinos, they also constitute an affront to African Americans, for whom the provision was originally enacted. Efforts to undo birthright citizenship undermine the foundation of Black—and indeed all—civil rights. In this regard, contemporary efforts to repeal birthright citizenship strike at the most lasting and important legacy of the Reconstruction Congress: the post-Civil War transformation of American ideals and identity.

The Framers’ Determination to Extend Birthright Citizenship to All

When the Reconstruction Congress guaranteed that anyone born on U.S. soil would become a citizen, it did so consciously, deliberately, and explicitly. Any fair examination of the legislative history reveals that Congress considered and rejected many of the arguments made by contemporary repeal supporters. Conservatives who in other contexts contend that the Constitution should mean only what the Framers intended conveniently ignore the great weight of the historical record surrounding their decision to embrace birthright citizenship.

When the 14th Amendment was enacted, there was no more disfavored immigrant group than Chinese laborers. Nineteenth-century U.S. history (and indeed a good part of twentieth-century history as well) is replete with national and local discriminatory legislation targeted at Chinese immigrants. Justice John Marshall Harlan’s dissent from the Supreme Court’s Plessy v. Ferguson decision, which upheld the constitutionality of segregation, is well-known for its courageous and prescient articulation of Black equality—but it is less well-known for its explicit denigration of Chinese immigrants. In support of his argument that segregation in public accommodations is unconstitutional, Harlan criticized Louisiana’s segregation laws, which restricted Blacks but not other races. He reminded the majority that “there is a race so different than our own that we do not permit those belonging to it to become citizens of the United States . . . I allude to the Chinese race.”[ix] Segregation of Blacks on railway cars could not be justified, reasoned Harlan, if no such laws existed to similarly restrict the Chinese. Indeed, as a matter of federal law, Chinese immigrants were effectively barred from becoming citizens until 1943[x]—a sweeping restriction placed on no other immigrant group in U.S. history.

Prejudice against the Chinese was no less intense in 1866, when Congress was debating the birthright citizenship provision of the 14th Amendment. During the debate, some opponents asked, “Is the child of the Chinese immigrant in California a citizen? Is the child of Gypsy born in Pennsylvania a citizen?”[xi] Others openly expressed the fear that “the tide of emigration that might pour in upon the Pacific States from the surcharged populations of eastern Asia” would overrun “[o]ur Christian civilization and our [g]overnment.”[xii] A senator opposed to Section I asked “Are [the people of California] to be immigrated out of house and home by the Chinese?”[xiii]

These concerns failed to win the day. Instead, the principle of birthright citizenship was deemed critical to the transformation of the United States. One Republican senator from California who had expressed concerns about Chinese immigration nevertheless offered his support for the birthright citizenship provision, announcing, “[W]e are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law.”[xiv]

Clearly, in the interest of articulating an undiluted principle of equality in citizenship, the Framers chose to ensure that any person born on U.S. soil would be a citizen of the new United States, as ushered in by the Civil War Amendments to the Constitution.

“Subject to the Jurisdiction”

On the first day of the 2011 congressional session, Rep. Steven King (R-IA) introduced legislation to amend the Immigration and Nationality Act to outlaw automatic birthright citizenship.[xv] King argued that the 14th Amendment on its face gives Congress the authority to restrict birthright citizenship because of the language of Section 1, which includes the qualification that potential citizens born on U.S. soil must be “subject to the jurisdiction” of the United States. King contends that this enables Congress to deny citizenship to the children of illegal immigrants who, he says, are not “subject to the jurisdiction” of the United States.

A simple originalist analysis of the birthright citizenship provision defeats King’s argument. The intense prejudice against the Chinese again led to the Supreme Court’s most cogent and unequivocal interpretation of the birthright citizenship provision, in the 1898 case, U.S. v. Wong Kim Ark.[xvi] In that case, the court had to decide whether the U.S.-born child of Chinese immigrants was a citizen. Wong Kim Ark was born and raised in San Francisco, the son of Chinese laborers who were forbidden by federal law from becoming naturalized citizens. When he was about seventeen, Wong Kim Ark and his parents visited China, and upon his return to the United States, he was permitted to enter the country by customs officers, on the grounds that he was a U.S. citizen. However, when he went to China for a second visit four years later, customs officers prohibited him from re-entering, claiming that he was not a U.S. citizen.

At the outset of the case, the court noted an important fact: Wong Kim Ark’s parents were laborers. They had never been “employed in any diplomatic or official capacity under the Emperor of China.”[xvii] This was the key to the court’s resolution of the case. It found that the words “subject to the jurisdiction” confirmed the common-law understanding that diplomats are “subject to the jurisdiction” not of the country in which they serve, but of their sovereigns. (Similarly, an embassy represents the actual territory of the home country, and the conferral of diplomatic immunity recognizes that foreign ambassadors are subject to their countries’ laws.) The Framers intended to recognize and carry forward this tradition. Thus, the children of foreign diplomats who are born in the U.S. do not become U.S. citizens.

Common law also recognized a second category of children born in the United States who were excluded from birthright citizenship: those born to soldiers in hostile armies of occupation. Thus, according to the court, “The real object of . . . the addition [of the words] ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words … the two classes of cases—children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State.”[xviii] The amendment, according to the court, “was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States.”

Congress regulates naturalized citizenship. But the fact that Congress had exercised its power over naturalization to exclude Chinese immigrants was irrelevant to the citizenship of Wong Kim Ark. The court held that “[t]he fact … that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution.”[xix] The 14th Amendment, said the court, “has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.”[xx] Birthright citizenship is limited only by “birth within the dominion of the United States, notwithstanding alienage of parents.”[xxi] Wong Kim Ark was unequivocally a U.S. citizen. And Congress is powerless to restrict birthright citizenship.

Rep. King’s efforts to restrict birthright citizenship by statute, therefore, constitute a patently unconstitutional usurpation of authority. The birthright citizenship provision of the 14th Amendment cannot be altered by legislation. Only a constitutional amendment can overturn a constitutional provision—much as Section 2 of 14th Amendment, which requires the inclusion of Blacks in the enumeration of population for congressional districts, overturned the hideous “3/5 clause” of Article I of the Constitution, which counted only a fraction of each slave for purposes of apportionment.

The Benefits of Birthright Citizenship

The U.S. is among a minority of countries that provide birthright citizenship—also called jus soli. Most countries, including many in Europe as well as India, determine citizenship according to jus sanguinis—or “blood law.” Under jus sanguinis a child’s citizenship depends on the citizenship of the parents. To be a citizen, one parent, or in some cases grandparent, must also have been a citizen. Jus sanguinis often results in generations of permanent immigrants who, despite their longstanding presence and work in a country, never count as citizens. In Germany, for example, generations of Turkish “guest workers” were never accepted as Germans, resulting in parallel, separate, self-contained Turkish communities in cities like Berlin and Hamburg.[xxii] After 9/11, German authorities recognized that they had little meaningful understanding of or contacts with the large Turkish-Muslim communities in those cities.

Ironically, nativists who attack birthright citizenship fail to recognize that it furthers the aims many of them purport to advance in other contexts. For example, many right-wing anti-immigrant groups support “English only” initiatives and argue that immigrants to the United States should integrate themselves fully into U.S. culture. But it is birthright citizenship that has fostered the integration of immigrants into mainstream American life at a rate and with an intensity unprecedented among immigrants internationally.

Although racial and national origin, and language-minority discrimination continue to pose substantial challenges to Blacks, Latinos, and others in the United States, when compared to other western nations, this country has been remarkably successful in absorbing immigrants. Contrary to conservative rhetoric, empirical evidence demonstrates that the children of immigrants to the U.S. today quickly become integrated.[xxiii] Even when segregated, immigrants enjoy a support network of social service organizations, political leaders, and activists. Birthright citizenship and the presence of a well-developed civil rights infrastructure ensures that successive generations benefit from accumulated political power and social justice organizing.

What Graham, King, and other antibirthright citizenship advocates propose is trading in America’s relatively successful (although troubled) immigrant integration experience for the failures of Western Europe.

The New United States

Despite the high aspirations of the Framers of the 14th Amendment, it took nearly 100 years for the Civil War Amendments to begin to yield fruit from the trees they so painstakingly planted. The early flower of Reconstruction—the election of seven Black congressmen,[xxiv] the construction of 630 schoolhouses, eleven colleges and universities,[xxv] and participation of 700,000 Black voters in the presidential election of 1872[xxvi]—soon gave way to the reign of violence, repression, and terror that marked the years 1875 – 1900.[xxvii] During this period, known as “the nadir,” southern segregationists, apathetic white northerners, and an acquiescent Supreme Court read out of the 14th Amendment the very protections the Framers had carefully debated and adopted. The equal protection clause was interpreted by the Supreme Court in 1896 to mean “separate but equal.” The due process clause was hijacked by corporations, which became the primary beneficiaries of its protections for the first seventy years after the amendment’s passage. The one provision that remained untouched, and that formed the foundation from which the other provisions drew their strength, was the birthright citizenship provision. With the Supreme Court’s decisive determination in Wong Kim Ark, the birthright citizenship provision became the least controversial and least-litigated provision of the 14th Amendment and ensured that America would retain its unique position as a “nation of immigrants.”

Contemporary attacks on birthright citizenship are transparent and odious attacks on Latino immigrants and immigrant families. But they are also attacks on the rebirth of the United States after the Civil War. The new Constitution that accompanied America’s rebirth was one designed to reframe the terms of citizenship in this country. Under these terms, this country for the first time removed the stain and shame of slavery, and created the promise of equality which, although yet still unmet for many in this country, has become enshrined as the highest national ideal.

 

The Conversion of Lindsey Graham

Senator Lindsey Graham’s statements opposing birthright citizenship were particularly tough for Latinos and immigration advocates to swallow. When Graham received an award from the National Council of La Raza in 2007 because of his courageous vow to act on immigration reform, he took a great deal of heat from conservatives. At the time, his response was to call his opponents out of touch.

But that was before the 2008 election of Barack Obama. The ascent of the first Black president unleashed a wave of nativism that has swept the immigration debate far from the shores of rational discourse. Obama’s election itself has been persistently challenged by “birthers” who insist he was born not in Hawaii but in Kenya. Because the Constitution limits the presidency to native-born U.S. citizens (as opposed to naturalized citizens), the birthers claim Obama’s presidency is illegal.

Both the birthers and those who wish to repeal birthright citizenship seem to be impervious to facts. The birthers refuse to accept Obama’s birth certificate, while repeal activists insist that the United States is being invaded by “anchor babies” in the absence of any empirical evidence. Despite their questionable ideas, both birthers and birthright citizenship repeal activists have succeeded in mobilizing an influential bloc of the Republican Party. The Tea Party has put congressional Republicans on notice that if they make common cause with Democrats on immigration, or even behave cordially to the president, they will be seen as traitors to the party.

To his credit, Graham criticized the Tea Party as late as last July, when he announced that it was “unsustainable.”[xxviii] His critical comments about the Tea Party in a New York Times Magazine profile were the last straw for some.[xxix] One Republican website labeled him a RINO—Republican In Name Only.[xxx] His willingness to work out a pragmatic conservative position on closing Guantanamo, to support Democrats on climate change legislation, and to vote in support of Supreme Court nominee Elena Kagan had placed him squarely within the sights of Tea Party activists.

In August, Graham announced that he would introduce legislation to overturn birthright citizenship. Although he doesn’t face re-election until 2014, given the aggressive challenges mounted by the Tea Party to establishment Republican candidates last fall, he is surely concerned about the likelihood of drawing a Tea Party challenger in 2014. To shore up his support among conservatives, a reversal on immigration may seem like a small price to pay—his state of South Carolina is only 4.5 percent Latino.[xxxi]

Graham is likely to throw more red meat to the Right during the next few months. A recent poll found that forty percent of Republican voters think Graham is “too liberal.”[xxxii] Already, his website has a new look[xxxiii]; it touts Graham as “A Conservative Problem Solver” and features photos of Graham posing with South Carolina Tea Party darlings Governor Nikki Haley and Senator Jim DeMint.

Completing his conversion, Graham recently announced that the Republican Party needs a coalition of “Main Street, the Chamber of Commerce, and the Tea Party.”[xxxiv]

 

Anchor Babies, Welfare Queens, and Other Tropes

The crude use of the term “anchor baby” to describe a child born to an undocumented Mexican mother in the United States is part of a long tradition of the successful deployment of imagery that plays to coarse racial and gender stereotypes. It was President Ronald Reagan who invoked the idea of the “welfare queen”[xxxv] during his 1976 presidential campaign. Referring to a single story of welfare fraud in Chicago, he denounced women who supposedly “drove Cadillacs” while living on welfare checks. It was understood that these women were Black. The “welfare queen” myth took on a life of its own, dramatizing the racialized anger of Whites on the Right toward the Black poor. Reagan used the story to stoke the ire of those he called “hard-working” Americans.

The right-wing activist Clint Bolick used the residue of the “welfare queen” image in his distorted description of the civil-rights scholar Lani Guinier as a “quota queen” in the Wall Street Journal.[xxxvi] Bolick’s op-ed essay was the opening salvo in a campaign of character assassination designed to derail President Clinton’s nomination of Guinier as assistant attorney general for civil rights. An article in U.S. News and World Report marked Guinier as an “other” on the basis of gender and ethnicity when it said of her, “strange hair, strange name, strange ideas—she’s finished.”[xxxvii]

The “anchor baby” trope has similar possibilities. It both demonizes Mexican mothers, who allegedly use their newborns as tickets to welfare and other citizenship benefits, and dehumanizes their children as just so much immigration baggage. The thin logic behind this notion is illustrated by Lindsey Graham’s claim that the process of coming to the U.S. to have “anchor babies” is called “drop and leave.” Either Mexican women are crossing the border to have their babies in the U.S. to obtain welfare benefits, or they are having babies and leaving for Mexico. Both cannot be true. (In an additional twist, Rep. Louie Gohmert [R-TX] told Congress last summer that Arab women come to the United States to have babies, take them home to be indoctrinated as “terrorists,” and then unleash them into the United States.[xxxviii])

There are real dangers attendant to this kind of dehumanizing language. When children are no longer regarded as vulnerable members of our society, entitled to the protection of the state, then it is easy to justify such actions as workplace immigration raids that leave children frightened and devastated by the abrupt arrest and detention of their parents. Indeed the children themselves can be detained in conditions likely to leave them psychologically scarred.[xxxix]

Only certain immigrant children are dehumanized in this way, however. Dismissive references to Mexican “anchor babies” stand in stark contrast to the solicitous welcome extended by those on the political Right to the noncitizen, undocumented child-immigrant Elian Gonzales, who arrived from Cuba in 2000, after his mother drowned at sea during an attempt to gain access to the United States. Conservative Cuban-Americans and others campaigned to allow Gonzales to stay—although he was eventually deported.[xxxx]

Of course, no empirical data has ever been presented to support the existence of “anchor babies.” Instead the same anecdotes are circulated as right-wing talking points: hotels that offer “birth holidays” in the U.S.; pregnant Mexicans who time their dilation precisely and show up at hospitals across the border. In fact, the Mexican-national parent of a U.S. born infant could not even apply for citizenship until the child was 21 years old. [xxxxi] Thereafter, the average wait time for the successful processing of a citizenship application is ten years. This means that a Mexican-national mother would have to wait at least 31 years for her baby to provide her with the reward of citizenship—an unlikely motivation for her to give birth in the U.S.

Mexicans come to the United States for the same reason that millions of immigrants have traveled to the U.S. over the past 200 years: economic survival. The impending birth of a child can make the need for employment and a chance at a better life even more urgent than usual. Irish, Scottish, Italians, Norwegians, Russians, and others were assisted by U.S. immigration policies that until the 1960s discriminated in favor of European immigrants. This “affirmative action” ensured that millions of White children born in the U.S. to newly arrived families would never be labeled “anchor babies.”


[i] Andy Barr, “Graham Eyes ‘Birthright Citizenship,’” Politico, July 29, 2010, available at http://www.politico.com/news/stories/0710/40395.html (last visited February 14, 2011)

[ii] Jacques Billeaud, “Vote Eyed in Arizona on Denial of Citizenship to Kids,” Atlanta Journal-Constitution (online), February 7, 2011, available at http://www.ajc.com/news/nation-world/vote-eyed-in-az-831770.html (last visited on February 14, 2011)

[iii]http://colorlines.com/archives/2011/02/minuteman_vigilante_shawna_forde_convicted_for_brisenia_flores_murder.html#

[iv] Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 404 (1857).

[v] W.E.B. DuBois, Black Reconstruction in America, 678 (Russell & Russell 1962) (1935).

[vi] Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873).

[vii] William E. Nelson, The Fourteenth Amendment (Harvard University Press, 1988) at p. 41, quoting from correspondence of Jesse Shortess of Springfield, Missouri to General Sherman, December 24, 1865.

[viii] Id, letter from W.W. Trimble to John Sherman, February 12, 1866.

[ix] Plessy v. Ferguson, 163. U.S. 537, (1896), J, Harlan dissenting. Available at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0163_0537_ZD.html

[x] For a summary of Chinese Exclusions laws dating from the 19th century, see http://www.archives.gov/pacific/education/curriculum/4th-grade/chinese-exclusion.html

[xi] Nelson, The Fourteenth Amendment supra note ii at p. 101, quoting remarks of Sen. Edgar Cowan of Pennsylvania in Congressional Globe, 39th Cong., 1st Sess, 2890 (1866).

[xii] Id., quoting remarks of Sen. Garrett Davis of Kentucky in Congressional Globe, 40th Cong., 3d. Sess. 287 app. (1869).

[xiii] Id., quoting remarks of Sen. Edgar Cowan in Congressional Globe, 39th Cong., 1st Sess. 2890-2891.

[xiv] Id. at p. 114, quoting remarks of Sen. John Conness of California in Congressional Globe, 39th Cong., 1st Sess. 2892 (1866).

[xv]Simmi Aujla, “Steve King Unveils Birthright Bill,” Politico, January 5, 2011. Available at http://www.politico.com/news/stories/0111/47125.html (last visited February 14, 2011)

[xvi] 169 U.S. 649 (1898)

[xvii] U.S. v. Wong Kim Ark, supra n. x
at 652.

[xviii] Id. at 683.

[xix] Id. at 704.

[xx] Id. at 703.

[xxi] Id. at 688.

[xxii] Matthias Barsch, Andrea Brandt and Daniel Steinvorth, “Turkish Immigration to Germany: A Sorry History of Self-Deception and Wasted Opportunities,” Spiegel Online International, September 7, 2010, available at http://www.spiegel.de/international/germany/0,1518,716067,00.html (last visited on February 14, 2011).

[xxiii] http://www.urban.org/pdfs/immig_integration.pdf.

[xxiv] Philip Dray, Capitol Men: The Epic Story of Reconstruction Through the Lives of The First Black Congressmen, (First Mariner Books, 2008).

[xxv] Robert Westley, Many Billions Gone: Is It Time To Reconsider The Case for Black Reparations?, 19 B.C. Third World L.J. 429,461 (1998).

[xxvi] Derrick Bell, Race, Racism & American Law, Sixth Edition (Aspen Publishers 2008)at p. 51.

[xxvii] W.E.B. DuBois, Black Reconstruction,

[xxviii] Howard Kurtz, “Lindsey Graham Spits Out Tea Party,” Washington Post, July , 2010, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/07/02/AR2010070201530.html (last viewed March 13, 2011)

[xxix]Robert Draper, “Lindsey Graham: This Year’s Maverick” New York Times Magazine, July 1, 2010 available at http://www.nytimes.com/2010/07/04/magazine/04graham-t.html?_r=2&src=twt&twt=nytimespolitics&pagewanted=all .

[xxx] See http://www.redstate.com/skipmaclure/2010/03/09/lindsey-gr-amnesty-rino-extraordinaire/

[xxxi] U.S. Census Bureau, State and County Quick Facts, available at http://quickfacts.census.gov/qfd/states/45000.html , (last visited on March 13, 2011)

[xxxii] Public Policy Polling, February 3, 2011, available at http://www.publicpolicypolling.com/pdf/PPP_Release_SC_0203.pdf (last visited on March 13, 2011)

[xxxiii] http://www.lindseygraham.com/

[xxxiv] Scott Wong & Manu Raju,“Lindsey Graham Tempers
Tea Party Stance,” Politico, March 14, 2011, available at http://www.politico.com/news/stories/0311/51214.html (last visited on March 14, 2011).

[xxxv] “Welfare Queen Becomes Issue in Reagan Campaign,” New York Times, February 15, 1976 available at http://picofarad.info/misc/welfarequeen.pdf (last visited on March 13, 2011).

[xxxvi] cite WSJ article appeared on April 30, 1993. In fact the title of Bolick’s article – “Clinton’s Quota Queens” was directed at two women of color nominated by President Clinton – Norma Cantu, who was nominated to serve as assistant secretary for civil rights in the Department of Education, and Guinier.

[xxxvii] http://www.usnews.com/usnews/news/articles/930607/archive_015266.htm

[xxxviii] http://articles.nydailynews.com/2010-06-27/news/27068389_1_terrorists-baby-pregnant-woman

[xxxix] Emily Bazar, “Workplace Raids Ensnare Kids in Net Too,” USA Today, October 31, 2007, available at http://www.usatoday.com/news/nation/2007-10-31-immigration-kids_N.htm, (last visited on March 13, 2011).

[xxxx] http://www.pbs.org/wgbh/pages/frontline/shows/elian/etc/eliancron.html

[xxxxi] http://voices.washingtonpost.com/right-turn/2011/01/birthright_citizenship.html

Sherrilyn A. Ifill is a professor at the University of Maryland School of Law and a civil rights lawyer.