A Community of Equals: The Constitutional Protection of New Americans (New Democracy Forum Series).

A Community of Equals: The Constitutional Protection of New Americans (New Democracy Forum Series) by Owen Fiss Beacon Press. 120 pages. $10.00.

Depending on your perspective, Owen Fiss has either terrific or terrible timing.

The Yale professor's new book argues that the United States should extend the Fourteenth Amendment guarantee of "equal protection" to immigrants. Shortly before the book appeared in print, the Supreme Court declared that First Amendment free speech rights do not belong to aliens facing deportation. It appears that Fiss and those sympathetic to his suggestions will have to wait awhile before the justices embrace immigrants.

In the meantime, Fiss has produced an excellent rejoinder to the Supreme Court.

His essay opens the latest volume in the Beacon Press "New Democracy Forum" series on contemporary issues. It is introduced by novelist Edwidge Danticat and accompanied by responses from eleven other academics ranging from law professor and former immigration official Alexander Aleinikoff and economist Jagdish Bhagwati to historian Rogers Smith and political theorist Iris Young. This short book is worth reading.

Fiss asks the courts to understand "equal protection" doctrines as preventing both discrimination against individuals and subjugation of groups. He says that by turning immigrants into pariahs, we disfigure society. We are no longer "a community of equals" as we ideally imagine ourselves. Instead, we have unnecessarily created a class "forced ... to live at the margins of society and to prey upon it" with "no education, no welfare, no work."

And he writes that by denying illegal immigrants and their children access to public schools, the United States would ensure that they "become the new underclass."

The standard justification for virtually any immigration policy rests on a notion of collective entitlement--the common-sense proposition that people who arrived first, and have been here longer, have gained the right to exclude those who seek entry later. Upon reflection, Fiss says, collective entitlement turns out to be an assertion about ancestry, if not exactly race. It is rooted in a sense of group belonging.

Although Fiss advances the case for immigrants, he makes several concessions that render his brief less persuasive. For one thing, he says that there are real differences between citizens and aliens and argues that it is acceptable for immigrants to be politically "disabled" unless they become citizens. It isn't clear, however, which inequalities Fiss would permit and which he would prohibit. His distinctions between the rights of citizens and more basic human rights are murky at best.

Fiss also concedes that national sovereignty demands restrictive policies to control immigration. He says he is "prepared to assume" that current immigration standards are just and he does not wish to "otherwise open the borders." He would tolerate "fences at the borders, deportation proceedings, or criminal sanctions." Following Clinton Administration approaches, Fiss likewise bargains that intolerance at the borders can be traded to gain tolerance within them.

Novelist Danticat places herself in partial opposition to Fiss by observing that the anti-immigrant backlash has a racial side to it. This has also been true of the naturalization statutes for the better part of this century. They required that people prove they were "free white persons," or of African descent, in order to become citizens.

It would be wrong to suppose that every individual who opposes more newcomers is motivated solely by demographic trends. Many people of color are less than enthusiastic about welcoming anyone else into their country. It would be naive, though, to assume that race is irrelevant to this debate. The resurgent nativism espoused by Presidential candidate Pat Buchanan, Louisiana politician David Duke, and author Peter Brimelow, among others, is helping to make race central to the citizenship debates.

Yet as Danticat notes, "immigrants are transnational, global ambassadors for both the country they live in and the one they've moved from." They participate in both societies, and those societies have become inextricably connected through much more than their activities alone.

Fiss's respondents present a range of objections to his essay. Myron Weiner insists that gains for immigrants must come "at the expense of workers and taxpayers." If these responses reach any consensus, it is the belief that, as Robin West argues, the people rather than the courts should be persuaded.

And public opinion changes. Jennifer Gordon observes that immigrants have been allowed to vote in the past. Muzaffar Chishti notes that immigrants have been inspired in part by anti-immigrant rhetoric to become citizens and to become active in politics.

One of the contributors, Mark Tushnet, best summarizes the overriding critique: "Owen Fiss's proposal doesn't go far enough."

In trying to distinguish between citizenship and race, Fiss has touched upon a tension that is likely to trouble the left in the future. Distinguishing between citizens and aliens may be as wrong as favoring whites over nonwhites. Given global economic disparities, this is one issue that will not go away.

Frank Wu is associate professor at Howard University Law School. He wrote "Motion Denied" in the March issue.