“to deny birthright citizenship … exemplifies current efforts to write facially neutral laws with racially discriminatory effects” (Haney Lopez)

Immigration laws targeting presumptively Latinx immigrants serve as Haney Lopez’s chief example of facially neutral laws that nevertheless have a racially disparate impact. / WBL 141ff

The proposed constitutional amendment to repeal the [142] Citizenship Clause of the Fourteenth Amendment in order to deny birthright citizenship to children born in the United States to undocumented persons exemplifies current efforts to write facially neutral laws with racially discriminatory effects.[54] So does California’s Proposition 187, the “Save Our State” (S.O.S.) initiative, which makes undocumented persons and their children ineligible for public social services ranging from primary education to non-emergency doctor’s visits and prenatal care.[55] Approved in 1994 by a two-to-one margin but currently blocked by a series of court challenges, S.O.S. is being hailed by some national leaders as a model for the entire country. Its success dramatically confirms the role of unconscious racism in the legal construction of race.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 141ff.

 

  1. [54]H.R.J. Res. 129, 103d Cong., 1st Sess. (1993). See chapter 2.
  2. [55]Proposition 187: Text of Proposed Law, CALIFORNIA BALLOT PAMPHLET, GENERAL ELECTION, NOVEMBER 8, 1994, at 91.

“National citizenship gained significance only in the wake of the Civil War and the Fourteenth Amendment” (Haney López)

significance of the nationalization of citizenship vs. old state citizenship system / WBL p. 50

The lag between the enactment of a racial prerequisite for naturalization and its first legal test may partly reflect the relative insignificance of federal as opposed to state citizenship during this country’s first century. Prior to the Civil War, state citizenship was more important than federal citizenship for securing basic rights and privileges. National citizenship gained significance only in the wake of the Civil War and the Fourteenth Amendment. After 1870, “[a]ll persons born within the dominion and allegiance of the United States were citizens and constituents of the sovereign community. Their status with respect to the states depended upon this national status and upon their own choice of residence, and it could not be impeached or violated by state action.”[3] Thus, the spate of naturalization cases that began in 1878 may reflect the increased importance of national versus state citizenship after the civil war.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 50.

 

  1. [3]Ichioka, supra, at 12.