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

• Author: Wu, Frank

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...