Both candidates for governor—Republican Pat McCrory and Democrat Beverly Perdue—and N.C. Attorney General Roy Cooper, also a Democrat, want to bar aliens from our community colleges, leading to a permanent underclass of unskilled, menial workers. This is a mean-spirited, unworthy goal, though understandable. Fear, mistrust and hatred of foreigners and things foreign have been with us throughout the ages. The ancient Greeks had a name for it: xenophobia. When fear gains the upper hand, people do fearsome things. American history is littered with episodes committed in haste and repented for in the long, second look.
First we feared the French. The ink had hardly dried on the U.S. Constitution when an anti-French sentiment swept the country. Their warships lurked just over the horizon, harassing our merchant marine. President John Adams called a special session of Congress, and as a result, our military might was doubled, and it became illegal to speak ill of the commander in chief. Congress authorized Adams to imprison and deport enemy aliens, similar to our current system of whisking "combatants" away to secret prisons. Only when Thomas Jefferson was elected did alien and sedition laws end.
Then we feared the Irish and Germans. Starting in the 1820s, they arrived in waves but received a bitter welcome. They lived in shantytowns and were hired only at the least-paying and most arduous jobs. Newspapers described them as a "mongrel mass of ignorance." Protestant ministers preached against the dangers of "Irish whiskey and German beer."
Boston adopted a literacy test to bar the Irish from the ballot. In 1849, Nativists in New York formed a secret anti-immigrant society, the Order of the Star Spangled Banner. Members were instructed to reply "I know nothing" if asked about it, hence the Know Nothing Party. Membership spread, and by 1855, 43 Know Nothings were elected to Congress. The Know Nothings later adopted the name American Party, eventually dissolving over the slavery issue.
Next we feared the Chinese. Transcontinental railroad companies brought them in to lay tracks across the High Sierras. The job complete, the Chinese returned to the coast to compete for work during a period of high unemployment. But when employers chose the lower-paid Chinese, much like today's companies that hire the cheapest labor—Mexican and Latin American immigrants—the public outcry was "The Chinese must go." Attacks on Chinese flared from Los Angeles to Seattle. The Chinese were driven out of almost 30 towns, usually with violence. California responded by making it illegal for a Chinese person to testify in court against a white.
In 1882, Congress made it illegal for "Chinese laborers" to come to the United States; the act was soon amended to target not only "laborers" but "all persons of the Chinese race." The law stayed on the books until the end of World War II.
Then we went after the Germans. The United States and its allies were fighting Germany, among other Central Powers, and Montana made it illegal to speak German; publications in that language were banned. Those of German heritage constituted the state's largest ethnic group, and many opposed the war against Germany. Agent provocateurs were hired to frequent German beer halls and provoke discussions. Some 78 Montanans were convicted and sentenced to long prison terms. Some of the inmates' children were shipped to Oregon to be adopted.
Finally, in 2006, the Montana governor pardoned the Germans who had been arrested.
In the 1920s, we turned our hatred to the Russian-Jews. Lenin and the Bolsheviks had seized power in Russia, and in the United States, an anarchist blew himself up outside the home of U.S. Attorney General A. Mitchell Palmer. Other anarchists detonated bombs in the financial section of Manhattan.
On the night of Jan. 2, 1920, the FBI cast a dragnet over 33 cities and caught more than 4,000 supposed radicals. Within days, 6,000 more were rounded up. Although government agents searched homes, they found no bombs and only three handguns. Many were imprisoned in squalid conditions, then released after close questioning. Three hundred-fifty of the 10,000 or so arrested were deported, some questionably.
A New York Times correspondent wrote recently that his mother and father were likely targets: Russian immigrants, Jewish, labor organizers, living in sin. His mother was released after a few days, his father after several weeks (and several beatings). But the trauma never left. Years later some FBI agents called on the correspondent, who wasn't home. When he returned, his mother, pale and agitated, said: "The Palmers have been here" [an understandable slip of the tongue]. What have you done?"
We then cast our hateful eye to the Japanese. At the outbreak of World War II, 112,000 persons of Japanese ancestry resided on the Pacific coast. The U.S. government forcibly uprooted them from their homes, moved them across the mountains to desolate places, and there, detained them in jerry-built shacks behind barbed wire. Military authorities assured President Franklin Roosevelt and the Supreme Court that this barbarity was necessary to prevent espionage and sabotage.
The military was wrong. After the hysteria died down, Congress appointed a blue ribbon panel to investigate the circumstances. The panel reported that the evacuation and detentions "were not driven by analysis of military conditions" but instead flowed from "race prejudice, war hysteria, and a failure of political leadership."
Congress then enacted the Civil Liberties Act of 1988; its purposes were (1) to apologize; (2) to make restitution to those we had injured; and (3) to discourage future occurrences of injustice and violations of civil liberties.
Yet, here we are, in 2008, denying aliens equal access to our community colleges. Admittedly a far cry from the Alien Act of 1798, from the Chinese Exclusion Act of 1888 or the Palmer Raids of 1920, this action nonetheless reflects the dark side of our history.
Unlike N.C. Attorney General Cooper, Gov. Mike Easley stands on the bright side of our heritage when he welcomes all residents to our community colleges. In this he stands with the Supreme Court and the Constitution, our lodestar.
The 14th Amendment provides that "no state shall deny to any person the equal protection of the laws." The Supreme Court has held for more than 100 years that aliens are persons and cannot be denied equal protection.
Three of the court's decisions relate to education, including a 1982 case in which the court held that Texas couldn't withhold funds for the education of children of illegal aliens, nor "treat the hapless children as untouchables and condemn them to lives of peonage."
Turning to higher education, the court held that New York couldn't deny financial assistance to a resident alien at the University of Buffalo because he wouldn't renounce his French citizenship. Similarly, it ruled the University of Maryland couldn't deny resident aliens in-state status, although Maryland wanted to earmark the disputed funds for those "more likely to have an affinity for the state."
There are dozens of cases in which the court has ruled in favor of immigrants' rights—legal or undocumented. The theme of these decisions, as one justice wrote, is that "Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society" and cannot be denied an equal opportunity to engage in the normal ways to earn a livelihood.
To all this there is one narrow exception. Just as the Constitution requires that our president be "a natural born citizen," states may require that "positions that go to the heart of representative government" be restricted to state citizens.
Those who would deny aliens equal access to our community colleges are not alone. Xenophobia is rampant throughout the land. Many don't know or care about the "equal protection of laws" enshrined in our Constitution, the Supreme Court decisions, the very rule of law itself. But they do matter, greatly.
Dan Pollitt is the Kenan professor emeritus at UNC-Chapel Hill School of Law.