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580 LEGISLATION AND PUBLIC POLICY [Vol. 11:567
While arguments as inflammatory as Huntington’s meet much
scholarly and lay critique, 70 modern nativism also operates through
the law by using seemingly unobjectionable symbols, or proxies, associated
with differing national origin to exclude and subordinate foreigners.
71 For example, the Supreme Court held in 1954 that potential
jurors could not be excluded solely on the basis of Mexican descent. 72
However, excluding jurors based on their ability to speak Spanish is
permitted and could in effect exclude potential jurors based on national
origin. 73 The Court in Strauder v. West Virginia went so far as
to suggest various proxies that the State could use to effectively keep
African Americans off of juries without violating the Constitution. 74
These suggestions included confining jury selection “to freeholders
. . . or to persons having educational qualifications”: 75 two conditions
which many African Americans could not meet in the late 1800s.
Undocumented status can also serve as a proxy for race. 76 Rather
than state that immigration policy is geared towards keeping Latinos
or Middle Easterners out of the country, the government can cite economic
or security concerns to justify making it difficult for certain
noncitizens to have legal status. 77 Applicants can be excluded on
ing instead their own political and linguistic enclaves—from Los Angeles to Miami—
and rejecting the Anglo-Protestant values that built the American dream. The United
States ignores this challenge at its peril.” Id.
70. David Montejano, Who is Samuel Huntington?, TEX. OBSERVER, Aug. 13, 2004,
at 12 (describing reaction of intellectuals to Huntington’s article).
71. See Perea, supra note 61, at 4–5 (discussing proxies such as language and un- R
documented status).
72. Hernandez v. Texas, 347 U.S. 475, 482 (1954).
73. See Hernandez v. New York, 500 U.S. 352, 371–72 (1991).
74. Strauder v. West Virginia, 100 U.S. 303, 310 (1880).
75. Id.
76. See Leti Volpp, “Obnoxious To Their Very Nature”: Asian Americans and
Constitutional Citizenship, 8 ASIAN L.J. 71, 82 (2001) (“[C]itizenship has served as a
proxy for race, so that ‘American’ is equated with being white.”).
77. These concerns, however, do not always conceal the racist aspects of immigration
policy. For example, the Immigration Act of 1990 encouraged immigration from
northwestern European countries such as Ireland. Dennis Conway, Are There New
Complexities in Global Migration Systems of Consequence for the United States “Nation-State”?,
2 IND. J. GLOBAL LEGAL STUD. 31, 41–42 (1994) (citing Immigration
Act of 1990, Pub. L. No. 101-649, § 132, 104 Stat. 4978, 5000 (codified as amended
at 8 U.S.C. § 1153 (Supp. V 1993)). At the same time, the Border Patrol was constructing
a gate in order to curb illegal border crossings near San Diego. JOSEPH
NEVINS, OPERATION GATEKEEPER: THE RISE OF THE “ILLEGAL ALIEN” AND THE MAK-
ING OF THE U.S.-MEXICO BOUNDARY 3 (2002). The Border Patrol continues to spend
a disproportionate amount of its budget on border enforcement despite the fact that
nearly half of undocumented immigrants crossed legally and overstayed their visas.
PEW HISPANIC CENTER, MODES OF ENTRY FOR THE UNAUTHORIZED MIGRANT POPULA-
TION 4 (2006), http://pewhispanic.org/files/factsheets/19.pdf [hereinafter MODES OF
ENTRY].