Paul Simon

Mr. SIMON

Mr. SIMON. That is correct.

Mr. SIMON. The Senator from Iowa is absolutely correct. It is interesting that the former chief executive of the American operation received awards for his labor-management relations and the improvement of productivity that took place. Now, all of a sudden, with the change in executives, things went downhill fast. We have to do what we can to encourage the two sides to get together.

Mr. SIMON. I wish to commend him for his statement, and I simply want the officers of that corporation to know this vote today was just the first salvo. This is not the end of the road. The Senator is talking about when the Japanese Prime Minister is here. I do not know what other opportunities we are going to have. All I know is what has happened is wrong, wrong, wrong. We have to turn it around in some way. I do not know whether the rubber workers are right in all their requests. I do not know all the things that management has requested. All I know is that the right way to settle this dispute is to sit down and work it out between labor and management, not to hire workers permanently to replace workers of those families the Senator is talking about. So I commend my colleague, and I look forward to working with him.

Mr. SIMON. Will my colleague yield?

Mr. SIMON. I am willing to yield back my time and move to a vote.

Mr. SIMON. Mr. President, I ask unanimous consent to have Senator Kennedy added as a cosponsor of the amendment.

Mr. SIMON. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SIMON. Mr. President, I am a great believer in sitting down and working things out. Any time anybody in this body wants to put up a resolution for any corporation where there is a strike resolution, encouraging both sides to sit down, I am willing to support it. I think that is a sensible position for the U.S. Senate to take. Let me add that I am willing to vote soon. I understand Senator Harkin is on his way over here to speak. I hope we can just give him another minute or two to get over here. I am sure he will speak briefly, because I know some people are anxious to get out of here. I do not want to hold anyone up. If no one else seeks the floor, I will suggest the absence of a quorum for about 3 minutes. If Senator Harkin is not here, we will move ahead.

Mr. SIMON. Absolutely. In terms of cluttering up this bill, as the Senator from Kansas indicated, if she will indicate to me that she will be happy to support this legislation if we introduce it independently and not on this bill, I will be happy to withdraw it, and we will bring it up independently.

Mr. SIMON. That is correct.

Mr. SIMON. And to negotiate, that is correct.

Mr. SIMON. That is correct.

Mr. SIMON. I yield, of course, to my colleague from Illinois.

Mr. SIMON. Mr. President, let me say in response to my colleague from Kansas, that we are not passing the law on striker replacement. This is simply a sense of the Senate stating they ought to sit down and work these things out. We do have traditions of not hiring permanent replacements for strikers. And as far as interfering in a labor- management situation, we have passed a lot of resolutions on these, including specific legislation. This is not legislation. We have, on at least three occasions that I know of, passed legislation dictating what is going to happen in railroad strikes, since I have been in the Senate. And since my colleague from Kansas has been here longer, she has probably voted for more than three of these. This is only a sense-of-the-Senate resolution urging the two parties to sit down and work things out. We do not take sides. We do not say one side is right and one side is wrong. We do say that firing these thousands of workers who are on strike is not the direction we think they should go. I have participated in the striker replacement legislation, and I think everyone here on the floor said we do not think this is the way people should go, even though that ultimate right should be there for employers.

Mr. SIMON. I always welcome Senator Kassebaum's speech.

Mr. SIMON. I say to my colleague from Iowa, if he is going to yield his time, I am willing to yield my time and proceed to a vote.

Mr. SIMON. I thank Senator Glenn. Mr. President, let me just add one other point. In addition to the labor-management factor here, I think the other factor is United States-Japan relations. This is not the kind of thing that is going to help relations between our two countries. So I hope that, if we adopt this resolution--and I hope we do--that the corporation would take another look at this. This is not good for United States-Japan relations as well as not good for the future of this corporation, Bridgestone/Firestone. The rubber workers have taken the position they should have the same contract as they do with the Firestone competitor, Goodyear. I do not know whether they are right or wrong. That is not the point. All we say is sit down and negotiate and see if this can be worked out. Mr. President, if no one else seeks the floor, I question the presence of a quorum.

Mr. SIMON. Mr. President, this is a sense-of-the-Senate resolution regarding a strike situation that we face in this country. Bridgestone/ Firestone is a company wholly owned by a Japanese corporation. They bought Firestone, merged the two companies. They have had a strike on since July. And back, I guess about a month ago, Senator Glenn and Senator Harkin and Senator Moseley-Braun and several of us met with the Japanese Ambassador and urged that they negotiate, that they sit down and negotiate. I, frankly, do not know, in terms of the dispute between labor and management, which side is right. What I do know is that they ought to sit down and negotiate. But the Bridgestone/Firestone has announced they are going to fire all the strikers and permanently replace them. That is--I have been doing some checking--we have had only two precedents like that since the 1930's. We have had no striker replacement law, as Western Europe and Canada and the other countries do, but we have had a tradition that you do not do that. And this resolution simply says to the corporation: Sit down and negotiate, rather than just firing several thousand workers. I would hope that we could adopt this resolution. My friend from Iowa indicates that he has some concerns, otherwise we could adopt it by voice vote. That is basically the situation. Let me point out one other thing. This is a Japanese--wholly-owned Japanese firm now. In Japan it would be illegal for them to do what they are doing in Illinois, in Iowa, in Oklahoma, Ohio, and Indiana. My hope is that this sense-of-the-Senate resolution could be adopted and that we can move forward. I yield the floor.

Mr. SIMON. I did not let the clerk read it but I will be happy to explain the amendment.

Mr. SIMON

Mr. SIMON. Mr. President, I picked up the fall 1994 issue of the publication, Constitution put out twice a year by the Foundation for the U.S. Constitution in New York City. The chairman of the foundation is Dwayne O. Andreas, the chief executive officer of Archer Daniels Midland [ADM] and a public-spirited citizen who has been willing to come to the fore on many key national concerns. I opened the magazine to read a preamble by Dwayne Andreas, and it is so loaded with common sense that I ask that it be inserted into the Congressional Record at the end of my remarks. Democracy can prevail only if citizens exercise self-restraint. We cannot see how close to the edge of the cliff we can come in exercising our freedoms. What Dwayne Andreas calls civic responsibility is the obligation of those of us in public office and of all American citizens. An item he refers to later in the publication is good but is, frankly, not as pointed as the Dwayne Andreas comment. I urge my colleagues and their staffs to read Dwayne Andreas's comments, which follows. At this point, I ask that Mr. Andreas's statement be printed in the Record. The statement follows: The rights we enjoy as American citizens have been a central focus of Constitution since we began publishing the magazine in 1988. In this issue we present a Special Report in which we consider the other side of the contract: the obligations of citizens to their society. These days, I sometimes wonder whether there is a contract--whether we Americans recognize any limits on our freedom to do as we please. We seem to have forgotten that the Constitution guarantees our rights within society. Increasingly, individuals and groups manifest a kind of ``in your face'' contempt for the rights of their fellow citizens; social obligations take a back seat to personal fulfillment and economic gain. Nowhere is this lack of civility more evident than in the area of social expression protected by the First Amendment to the Constitution. Brutality, obscenity and raw sex have become the common coin of television, film and popular music; all who question the fitness of these materials for a generally youthful audience are derided as prudes or thought controllers. And the purveyors of this destructive effluvium assert their right to sell it; few dare to speak of society's right to resist the tide. But society does have that right, and I fear that those who abuse the First Amendment in this way may be endangering the splendid guarantee that has protected them for so long. Even sober commentators like Irving Kristol worry about whether the First Amendment can survive. Writing for the wall Street Journal not long ago, Kristol labeled television violence a form of child abuse and suggested that ``modest limits on adult liberties ought to be perfectly acceptable if they prevent tens of thousands of children from growing up into criminal adults.'' Are such legislated limits truly necessary? I don't think so. Rather what's required is recalling that there is such a thing as civic responsibility--that with the rights of citizenship go some obligations. To remind readers of these obligations, we have prepared the Special Report that begins on page 50. These pages carry a timely reminder. Ignoring it could menace the guarantees about which this magazine has written so much since it was founded six years ago.

Mr. SIMON

Mr. SIMON. Mr. President, we are slowly but solidly making progress to reduce television entertainment violence in our country. We still have a long way to go, but I came across an Associated Press item reporting that even in Great Britain, which has much stricter standards on television violence than we do, there is concern about television violence. I thought my colleagues might be interested in the Associated Press story about violence on British television and some of the things that are happening there. I ask that the Associated Press article be printed in the Record at this point. The article follows: Britain Joins Americans in Attacking TV Violence London.--British television concerned over the soaring number of violent crimes in Britain, is moving to cut down on the amount of violence and brutality shown on TV screens here. Both the British Broadcasting Corp. and the Independent Television Commission announced changes last week. The ITC told commercial TV companies to cut the amount of violence they screen and said they will be monitored to ensure they comply. Among competitor BBC's revised guidelines for programmers: Viewers should be given more information about what programs contain before screening, so they can switch off if they wish. Programmers should have sharper awareness of portrayals of sexual violence and violence against women. U.S. programmers face a similar battle. The four U.S. broadcast networks, hoping to head off government intervention, have agreed to air parental warnings before certain shows. The BBC included no enforcement provisions in its guidelines. But as a private network, financed by license fees paid by viewers, it could simply edit out offending segments or censor entire programs. Companies who ignore the ITC guidelines can be reprimanded or fined. The commission, established by Act of Parliament, regulates Britain's Independent Television network. David Glencross, chief executive of the ITC said in announcing ITC guidelines Thursday. ``What we are seeing is a public revulsion against violence in society which is feeding through to a desire for greater sensitivity by TV programmakers and the makers of films and videos.'' ITC guidelines tell program-makers to consider carefully in each case whether violent scenes are justified. Programmers should not look at violent scenes in isolation but consider the accumulation of such scenes on viewers. Program-makers should avoid programming which ``appears to promote violence as a solution to problems or difficulties.'' In the area of news, the guidelines note that ``violent images are becoming increasingly available to news editors'' and said TV news bulletins should take account of the time they are to be shown. The ITC guidelines say no proof exists that violence on TV encourages violent crime in real life but state: ``Caution is required in the television portrayal of violence, given concern about the level of violence in society and the possibility of behavior or attitudes being influenced by what is shown on television. Broadcasters should therefore be especially vigilant about the amount of violence in their programs.'' Will Wyatt, managing director of BBC network TV, said in announcing the BBC guidelines, ``We must ensure that where violent scenes--in fictional programs or in news coverage-- are felt to be editorially necessary, they are included only after careful and detailed consideration. ``Although we cannot control what happens in the home, we must ensure that before material is transmitted it is tested for suitability for the time and place of its transmission-- or whether it should be transmitted at all.''

Mr. SIMON

Mr. SIMON. Mr. President, no one doubts that the schools in our Nation should do better. What is still not widely known is that we really do understand how to do better, but we're not applying the knowledge we have. Education simply has not become enough of a priority. Those of us in public life talk a good game, but too few of us do anything about it. An illustration of what can happen is an article that appeared several weeks ago in Newsweek magazine titled ``In Defiance of Darwin,'' written by Lynnell Hancock. I ask that the article be printed in the Record at this point. The article follows: [From Newsweek, Oct. 24, 1994] In Defiance of Darwin--How a Public School in the Bronx Turns Dropouts Into Scholars (By Lynnell Hancock) It's a notorious corner in the South Bronx--once a grand address, now the hub of the nation's poorest neighborhood. Today, at 149th Street and the Grand Concourse, a public high school for at-risk children defies Darwin on a daily basis. Inside Hostos-Lincoln Academy of Science, a class of seniors grapples with ``The Seafarer,'' an Old English poem about danger, survival and destiny. None of these teenagers was expected to ever navigate into the treacherous pages of medieval lit. In fact, their eight-grade counselors had written off most of them as probable dropouts, based on low reading scores and spotty attendance. That's how they landed at Hostos. Now, after four years here, more than 80 percent are headed for college. And they engage in a lively discussion about the sailor who believes his imminent death at sea is a stark inevitability, written in foam. ``The Anglo-Saxons thought every person's fate was predetermined,'' the teacher, Vincent Sottile, reminds the class. ``But we know we have to help ourselves.'' These 300 black and Latino students provide the basis for a strong retort to ``The Bell Curve.'' Richard Herrnstein and Charles Murray argue that IQ is largely genetic and that low IQ means scant success in society. Therefore, they contend, neither effective schools nor a healthier environment can do much to alter a person's destiny. Yet, at Hostos, reading scores nearly doubled over two years. The dropout rate is low, and attendance is high. About 70 percent of the class of 1989 graduated on time, double the city's average. Among last year's graduates, one was accepted at Columbia University's School of Engineering. Others are attending Fordham University and Hamilton College. Hostos was established by the city seven years ago for South Bronx children who live ``stressing lives,'' as one student puts it, in broken families and dangerous neigh borhoods that offer only huge, anonymous public schools. Hostos is small, attentive to individual students, and demanding. To ensure that no child goes astray, one teacher is assigned for four years to the same homeroom class, which combines lessons in rudimentary social skills with those in computer and civics. Most students take honors and even college-level courses. ``We threw out the Mickey Mouse curriculum and introduced [University of the State of New York] Regents-level courses,'' said Dr. Michele Cataldi, Hostos's founder and principal. Where students once had business math, they now have trigonometry. ``At first we felt students couldn't do it, but we were wrong,'' says Cataldi. Teachers worked overtime to provide intensive one-on-one tutoring. The results were impressive. The number of students in each class who passed the state's regents biology test rose from 9 to 50 percent in two years. ``You have to believe in them,'' says Donna Light-Donovan, a biology teacher. ``Most kids don't have anyone at home who does.'' Stanley Mustafa is one student who found a haven at Hostos. A few years ago he was stabbed on the street by a neighborhood teen. His life was saved by a trauma surgeon. That's the profession he now expects to enter some day. ``It made me grow up faster,'' says Mustafa, 17, dressed in baggy jeans and an oversize Black Sheep T shirt. ``I don't want to end up on the corner, hanging with the homeboys.'' He takes chemistry and cellular biology at Hostos, studies radiology at a local hospital and hopes to attend Atlanta's Morehouse School of Medicine or the University of Virginia. Nationwide, more and more districts are establishing small ``restructured'' schools like Hostos that stress team teaching, a familylike environment and high expectations. New York City has more than 35 of them, with plans for about 50 more. Herrnstein and Murray argue that 30 years of such experimental schools for disadvantaged children have shown paltry improvements, and that federal money should be funneled away from them, and toward schools for the ``cognitive elite.'' But a new study comparing 820 high schools--some big and traditional, others small and cooperative--proves otherwise. From eighth to 10th grade, students in the restructured schools showed 30 percent higher gains in math and 24 percent higher gains in reading compared with students in traditional schools. The study, commissioned by the Center on Organization and Restructuring of Schools at the University of Wisconsin in Madison, also found that the gap between the poor and those who were not poor shrank in the more nurturing schools. ``When high expectations for student learning are embodied in the formal structure of the school, very positive effects can occur for at-risk youth,'' says Anthony Bryk, director of the University of Chicago's Center for School Improvement, one of the report's analysts. Yet in ``The Bell Curve'' scenario, most Hostos students would give up their goals and find a valued place in society'' back in the South Bronx. ``The idea that people with the most capacity to be educated should become the most educated sounds dangerously elitist,'' they write. In fact, at 149th and the Grand Concourse, it sounds more like ``Beowulf.'' ``Fate is more strong, God more mighty than any man's thought,'' writes the anonymous Anglo-Saxon seafarer. And students like Mustafa know they can help themselves.

Mr. SIMON

Mr. SIMON. Mr. President, the Republican contract calls for the old star wars program--the strategic defense initiative [SDI]--to be retooled, reinvigorated, and deployed ``at the earliest possible date.'' We have spent a fortune on this program since 1983, with next to nothing to show for it, except perhaps how wasteful and foolish our defense spending can sometimes be. The following article, written by Robert Wright in the New Republic in December 1994, makes a clear case for discontinuing the high levels of treasure we spend on missile defense every year. President Clinton, who seems intent on spending far too much on defense over the next few years, must know that the new threats to our national security cannot be parried by building fanciful, expensive, uncertain missile defenses. The President and Congress instead ought to acknowledge that SDI by any name remains nothing more than a 1990's version of the old French Maginot Line. The Maginot Line didn't work in World War I, and star wars can't work today, for reasons made clear over the past 10 years of congressional and public debate. Sadly, we are visiting an issue now that should have gone away in the late 1980's. I commend the New Republic article to my colleagues, and I ask that it be printed in the Record. The article follows: Crazy State (By Robert Wright) Gingrich argued that conservatives adopt space exploration and Reagan's Strategic Defense Initiative, the so-called Star Wars program, as causes for tactical political gain. ``Young people like space,'' he said.--The Washington Post, 1985) The Strategic Defense Initiative is back. It's right there in the Republicans' Contract with America--or, at least, in the exegesis. The National Security Restoration Act, one of ten bills the contract would bring to a vote by spring, demands ``deployment at the earliest possible date'' of an anti-ballistic missile defense. The Republicans haven't said whether that means a space-based defense or a land-based defense. Either way it means trashing the 1972 Anti-Ballistic Missile Treaty, upping Pentagon spending by several billion a year for research and upping it by much more when deployment starts. Why aren't you excited? A surprisingly large number of people are. The new SDI comes with a new post-cold war rationale that has attracted not just Republicans, but some centrist Democrats. Indeed, research for a land-based SDI has stayed alive--if barely, and under another name--during the Clinton administration. Accelerated research and early deployment are thus a real political possibility, even if space-based weapons are a long shot. But before we make that leap, could somebody explain why the post-cold war rationale deserves anything less than the derision that finally overwhelmed the cold war rationale? The cold war derision had two pillars. First, there were firm doubts about technical feasibility. Nothing has since happened to undermine them. The Pentagon's initial claim of a 96 percent success rate for the Patriot Missile against Iraqi Scuds turned out to be fantasy. Second, we realized that plain old deterrence worked just fine as a missile defense; so long as Leonid Brezhnev could count on tit for tat, he wouldn't attack. If anything, indeed, a missile defense could weaken the perverse logic behind deterrence by making mutually assured destruction less assured; the ``protected'' nation might feel too nervy and the unprotected nation too nervous. Now, all of a sudden, we're told that deterrence won't work. Why? Because now we face not coolly rational, game- theoretical Soviets, but a different class of enemy: ``rogue states''--Saddam Hussein's Iraq, Kim Jong Il's North Korea, Muammar Qaddafi's Libya. How does one qualify as a ``rogue state''? So far as I can tell, it helps if your leader (a) doesn't have white skin, (b) dislikes the United States and (c) does not behave in genteel fashion (often failing, for example, to wear a necktie during affairs of state). The less polite term for ``rogue state,'' and its real meaning, is ``crazy state.'' But there is zero evidence that any of these leaders is ``crazy'' in the relevant sense: suicidal. Quite the contrary. Ronald Reagan gave Qaddafi the litmus test for sanity and he passed: we bombed his house, and he modified his behavior. Hussein has shown repeatedly that, once he knows where the brink is, he doesn't step over it. Bear in mind that a nuclear attack on the United States would be more suicidal for these men than it would have been for the Soviets. Brezhnev might conceivably have weathered a firestorm and emerged from his bunker to inherit a world destroyed. If Saddam Hussein tried that, he would be squashed like a bug upon emerging. And he knows it. Besides, if any ``crazy'' leader does want to blow up an American city, there are SDI-proof ways: drive a bomb across the Mexican border, sail it up the Potomac on a yacht or mail it. For a seventy-pound package, second-day UPS costs less than a ballistic missile. Neo-SDI advocates also invoke fear of ``accidental launch.'' But, as John Pike of the Federation of American Scientists has written in this magazine, ``Lots of things have to happen for a missile to fire. The chances of its leaping unbidden from its silo are about the same as the chances of a car starting itself up, opening the garage door and backing out into the driveway without human assistance.'' Besides, how many missiles are aimed at America these days? Russia has agreed to point no missiles at us in exchange for our reciprocal pledge. And whether or not you trust the Russians, their own strategic logic argues increasingly for aiming elsewhere (e.g., at other former Soviet states). Similarly, North Korea's top two targets would be South Korea and Japan. That's the way tensions are in the post-cold war world: regionalized. The surest American defense against ``accidental launch'' is to stay on good terms with Brazil. Of course, however slight the chances of nuclear attack, and however real the chances that a missile defense would fail to repel it, a little insurance would be appealing if it were cheap enough. First of all, it isn't cheap ($50 billion assuming meager cost overruns). Moreover, ``insurance'' conduces to solipsism; if we feel (however falsely) safe inside our little shell, waning support for internationalism will wane even faster. I'm not saying the new SDI enthusiasm is driven by nascent Republican isolationism. But the enthusiasm accommodates and nourishes the party's isolationist strain. In the Republican summary of the Security Restoration Act, only one goal gets more prominent billing than SDI: ``to ensure that U.S. troops are only deployed to support missions in the U.S.'s national security interests.'' We all care about ``national security interests.'' But some of us think that national security (in various senses) is increasingly tied to global stability. The Republicans' post- election rhetoric, in contrast, fixates on keeping U.S. troops out of peacekeeping roles, keeping U.S. dollars from supporting other peacekeepers and stifling the foreign aid that helps stabilize places like Russia and the Middle East. Also, of course, the Republicans don't favor one-worldish projects like . . . well, like continued adherence to the 1972 ABM Treaty. And violating that treaty (which, alas, even the Clinton administration's battlefield missile-defense research program threatens to do) is itself a dangerous retreat from internationalism. What's scarier than an Indian- Pakistani border flanked by nuclear arsenals? An Indian- Pakistani border flanked by destabilizing ABMs as well. We might yet be able to head that prospect off, but not once we've built our own shell. The United States is now uniquely positioned to lead the world in avoiding two bad things: a global race to build destabilizing missile defense systems, and a global race to carry destabilizing weapons into space--not just anti-missile weapons, but anti-satellite weapons. The Republicans are now on record as wanting to start the first of these races, and they are clearly inclined to start the second. It's time for President Clinton to crawl out of his bomb shelter, survey the wreckage and start fighting.

Mr. SIMON

Mr. SIMON. Mr. President, I will be reintroducing the desalination research bill, which I have introduced in two previous Congresses. It has passed the Senate twice. Unfortunately, it got caught up in the last-minute, partisan wrangling that had nothing to do with the desalination bill, and it did not pass. The need for it becomes more and more clear every day. Recently, I had the chance to read responses of Israeli Foreign Minister Simon Peres to questions at the National Press Club Forum on October 4. In response to a question by Jim Anderson of the German Press Agency, Foreign Minister Peres said: ``If you want to save your children from poverty, pay attention to the water. The rivers do not follow the frontiers and the rain doesn't go through the customs.'' Then, in response to another question from a reporter, whose name I do postponed. For example, the production of water, which is a must in order to satisfy basic needs of--(inaudible)--and it must be done on a regional basis.'' He talks about the need for supplying water for drinking, for industrial purposes, and for agricultural purposes and the need for desalination. The unfortunate reality is that desalination research has been minimal in recent years. When John F. Kennedy was President of the United States, he pushed it, but since that time, desalination research has been almost on hold. It is critical that we move ahead, and the Middle East is just one area where that is evident.

Mr. SIMON

Mr. SIMON. Mr. President, in an unusual publication called simply ``Constitution,'' published by the Foundation for the United States Constitution, there is an article by Professor Harold Hongju Koh of Yale University titled, ``Bitter Fruit of the Asian Immigration Cases.'' It interested me because of my long association with the cause of civil rights and because I grew up in the State of Oregon and recall the criticism my father took when, as a Lutheran minister, he objected to the 1942 unconstitutional transfer of Japanese American citizens away from the West Coast. Another reason for my interest is that I serve on the Senate Judiciary's Subcommittee on Immigration and Refugee Affairs. Our record in the field of immigration has not always been a good one, and that is particularly true as it applies to the Asian community. There is no question that we face problems in the field of immigration, but the answer is not passing things like Proposition 187 in California or the other abuses that we have tolerated through the history of our country. I believe my colleagues will find the article by Professor Koh a matter of more than casual interest. At this point, I ask that it be printed in the Record. The article follows: Bitter Fruit of the Asian Immigration Cases (By Harold Hongju Koh) Schoolchildren everywhere can recite the Statue of Liberty's inspirational message about ``huddled masses, yearning to breathe free.'' Yet history shows that our national attitude toward immigrants has been as hostile as it has been solicitious--especially in hard times. One need only look at today's headlines. As we endure our latest recession, newspapers report polls showing that 60 percent of Americans believe current levels of immigration are too high. News stories tell of the government's harsh policies toward Haitian and Chinese refugees, of public concern over the illicit smuggling of aliens, of anti-immigrant sentiment spurred by the World Trade Center bombing, and of lawsuits brought by California, Texas and Florida against the federal government to recoup costs arising from the influx of undocumented aliens. Politicians, says the New York Times, call for ``a get-tough effort to control immigration . . . prompted by polls showing that the issue is gaining an importance among voters . . . increasingly worried about the economic impact of immigrants and their effect on American culture.'' Not only is immigrant bashing as American as apple pie, but bias against immigrants has helped shape our constitutional law. Occasionally, the bias has been overt: a proposed constitutional amendment, for example, (favored, apparently, by 49 percent of Americans) would deny citizenship to the American-born children of undocumented aliens. And ``reforms'' that hurt immigrants have emerged as themes embroidered on Supreme Court decisions. It has been a long time since Justice Harry Blackmun led a unanimous Supreme Court to declare that ``aliens as a class are a prime example of a discrete and insular minority . . . for whom . . . heightened judicial solicitude is appropriate'' Graham v. Richardson, 1971). His last major immigration opinion Sale v. Haitian Centers Council, 1993) was a solitary dissent decrying the summary return of Haitian refugees to a brutal dictatorship without first granting them a hearing. In his dissent, Blackmun laid bare the themes that run through the modern Court's immigration and naturalization jurisprudence: an obsession with sovereignty and governmental power, an unwillingness to scrutinize the immigration decisions of government officials, contempt for international law and indifference to the due process and equal protection claims of foreigners seeking entry to the United States. Where and when did these attitudes originate? The latest volume of the Oliver Wendell Holmes Devise: History of the Supreme Court, Owen Fiss's impressive Troubled Beginnings of the Modern State, 1888-1910, illuminates a source: a series of Asian immigration cases decided by the Court in the late 19th century. Before these cases, immigration into the United States went virtually unregulated, driven by the perceived need to remedy underpopulation. Indeed, the Declaration of Independence assailed the King of England for ``endeavor[ing] to prevent the Population of these States; for that Purpose obstructing the Laws for Naturalization of Foreigners; [and] refusing to pass others to encourage their Migrations hither. . . .'' The Constitution's framers responded with the fourth clause of Article I, Section 8, which granted Congress power to ``establish an uniform Rule of Naturalization.'' In 1790 Congress invoked new power to pass a law permitting only ``free white persons'' to naturalize, a right not granted to Asian immigrants until 1952. Significantly, this language did not authorize Congress to regulate the admission of aliens who might seek citizenship. In fact, another clause of Article I forbade Congress to prohibit the ``Migration or Importation of such Persons as any of the States now existing shall think proper to admit'' before 1808. Designed to protect the slave trade, the clause was invoked by Jeffersonians to challenge the constitutionality of the Alien Act of 1798, which authorized the President to expel ``all such aliens as he shall judge dangerous to the peace and safety of the United States.'' During the years of free immigration few Asians came to these shores. Between 1820, when immigration records were first kept, and 1849, when the California Gold Rush began, only 43 Chinese were reported to have arrived in America. But once gold was discovered, thousands of Chinese miners flooded into ``Kumshan''--the Golden Moutain--as they called California. In 1850, 4,000 Chinese arrived in California. The next year the Chinese population stood at 25,000; in 1852, 45,000. These immigrants--mostly men who had left their families in China--came to work the mines. But by the mid- 1860s, thousands had depleted their mining claims or been forced off them. They found work on the western slopes of the Sierra Nevada, building the Central Pacific Railroad; in one year the company procured 15,000 laborers. Other Chinese opened laundries, restaurants and small shops, or worked as gardeners, domestic servants, farmers, fishermen, mechanics and artisans. By the mid-1870s, some 115,000 Chinese lived in the United States, 70 percent in California, where one person in 10 was Chinese. The first Chinese were welcomed with curiosity. In 1852 the governor of California claimed he wanted ``further immigration and settlement of the Chinese--one of the most worthy classes of our newly adopted citizens.'' But by the 1860s hospitality had soured. White workers assailed the Chinese for working too hard for too little, while the popular press vilified them as lairs, criminals, prostitutes and opium addicts. Unlike the European immigrants then flooding into the United States, the Chinese were thought unassimilable. In Justice Stephen Field's works, ``they remained strangers in the land, residing apart by themselves, and adhering to the customs and usages of their own country. As they grew in numbers each year, the people of the [West] coast saw, or believed they saw . . . great danger that at no distant day that portion of our country would be overrun by them unless prompt action was taken to restrict their immigration.'' When drought and depression hit California in the early 1860s, the Chinese were scapegoated. ``To an American,'' the 1876 manifesto of the Workingmen's Party of California declared, ``death is preferable to life on a par with the Chinaman.'' California and its cities began to enact restrictive laws. The first were revenue measures (such as entry, license and occupation taxes) and other laws neutral on their face but applied harshly against the Chinese. Chinese paid 98 percent of the monies collected under the California Foreign Miner's Tax, for example, and an 1870 law authorizing the state's immigration commissioner to remove ``debauched women'' was quickly applied to Chinese women arriving by ship. Soon the laws became overtly racist; a San Francisco ordinance required all Chinese residents to move to prescribed ghettoes, and another humiliated Chinese prisoners in the county jail by requiring them to cut their queues to one inch in length. Between 1855 and 1870 California passed acts bearing such titles as ``An Act to Discourage the Immigration to This State of Persons Who Cannot Become Citizens,'' ``An Act to Protect Free White Labor Against Competition with Chinese Coolie Labor'' and ``An Act to Prevent the Further Immigration of Chinese or Mongolians to This State.'' Chinese were denied the vote and the rights to own or inherit land, to testify in court, to attend public schools with whites. In 1879 California's new constitution asserted that ``the presence of foreigners ineligible to become citizens . . . is dangerous to the well-being of the State, and the Legislature shall discourage their immigration by all means within its power.'' Meanwhile, assaults on the Chinese became commonplace. In 1871 a Los Angeles race riot killed 19 Chinese. In September 1885, 28 Chinese laborers in a settlement near Rock Springs, Wyoming, were brutally murdered, and vigilantes killed several Chinese residents of the Washington territories. The next year mobs invaded the Chinese sections of several West Coast cities and forced residents out. Across Washington, Oregon and California, mass meetings demanded the expulsion of Chinese. California's restrictiveness contrasted sharply with federal immigration policy. An 1868 act of Congress declared that the right to leave the land of one's birth and resettle elsewhere was ``a natural and inherent right of all people,'' in recognition of which the United states ``has freely received emigrants from all nations and invested them with rights of citizenship.'' That year the United States and China concluded the Burlingame Treaty to improve trade with China and encourage the immigration of coolies to build the railroads. The treaty recognized that free migration and an ``inherent and inalienable right of man to change his home and allegiance'' were matters of ``mutual advantage'' for both nations. by its terms, Chinese could become ``permanent residents'' of the United States. Federal receptivity extended not just to immigration but also to citizenship by birth. In 1866, two years before the Burlingame Treaty, Congress passed a civil rights law (designed to overturn the 1857 Dred Scott decision) that reaffirmed the citizenship of native-born blacks. Its language was echoed in the birthright citizenship clause of Section 1 of the 14th Amendment, soon to be drafted by Congress: ``All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.'' California Senator John Conness supported this language and declared his desire for equal rights for children of Chinese parentage. By accepting the clause, notes constitutional scholar Gerald Neuman, Congress ``refused the invitation to create an hereditary caste of voteless denizens, vulnerable to expulsion and exploitation.'' But the tide soon changed. In 1872 political pressure led President Ulysses S. Grant to call for legislation to counteract the evils associated with Chinese immigration. The resulting Immigration Act of 1875 was the first federal legislation to control immigration. It outlawed contracts to supply coolie labor, barred importation of aliens without their consent and made it illegal to bring in women for purposes of prostitution. As applied against the Chinese, the restrictionist statute seemed inconsistent with the spirit of the Burlingame Treaty. Four years later President Rutherford Hayes invoked the treaty to veto a bill forbidding ships to bring more than 15 Chinese at a time into the country. But in 1880, under pressure from Congress, Hayes renegotiated the Burlingame Treaty to recognize America's right to regulate, limit and suspend Chinese immigration. Two years later Congress enacted the first Chinese Exclusion Act, which suspended immigration of Chinese, with minor exceptions, for 10 years. That law was amended and reenacted repeatedly and was not finally revoked until 1943. The 1882 act expressly prohibited the naturalization of Chinese as American citizens and denied entry to the wives of Chinese, even permanent U.S. residents--a restriction that continued for the next 60 years. This shortage of women forced many Chinese laborers to return to China simply to marry or have families. In 1884 Congress amended the exclusion law to require returning Chinese laborers to produce certificates of residence signed by two non-Chinese American citizens--a requisite designed to thwart ``the notorious capabilities of the lower classes of Chinese for perjury.'' The act was soon challenged. Chae Chan Ping, a Chinese laborer who had entered the United States lawfully in 1875, obtained the required certificate of residence before visiting China in 1887. In 1888, shortly before he was to return, Congress amended the Exclusion Act to revoke all reentry certificates. Chae Chan Ping was denied reentry, and he sued. He challenged the amended Chinese Exclusion Act on the grounds that it violated the Constitution's due process and equal protection clauses and conflicted with the Burlingame Treaty. In other times his case would have seemed easy. But a unanimous Court rejected his claim and in the process laid down the five planks of our modern immigration jurisprudence. Justice Stephen J. Field wrote the opinion. The first plank came with Field's title, the Chinese Exclusion case, an inapt name for a case that actually concerned the reentry of a longtime resident. By framing the case as an analysis of the federal government's supposed power to exclude, Field portrayed Chae Chan Ping's claim as an assault on the Chinese Exclusion Act, which he defined as the statutory expression of an inherent, unenumerated foreign-affairs power that lay beyond substantive constitutional attack. This power, he said, was an essential feature of national sovereignty. That ``the government of the United States. . .can exclude aliens from its territories,'' he declared, ``is a proposition which we do not think open to controversy. . .The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time, when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one.'' Justice Field conceded that the 1888 act violated the open terms of the Burlingame Treaty. But, he concluded, the act was ``not on that account invalid,'' since statutes and treaties are equivalent federal laws, and the most recent controls. In effect, he suggested, laying down what became the second plank of the Court's immigration jurisprudence, Congress has the power not just to disregard but also to abrogate solemn treaty obligations. Third, Field noted, a Chinese laborer's right to reenter the United States ``is held at the will of the government, revocable at any time, at its pleasure,'' despite any due process claim. Although the Court did not elaborate on that conclusion, later decisions have construed it as resting on several implicit premises: that perhaps the Constitution does not apply to aliens outside the United States; that a person's right to return home is neither a ``liberty'' nor a ``property'' interest protected by constitutional due process; or that an individual's due process interest can be outweighed by the public's interest in ``preserv[ing] its independence, and giving] security against foreign aggression and encroachment.'' As the constitutional scholar Louis Henkin has noted, ``whatever the Court intended, both its holding and its sweeping dictum have been taken to mean that there are no constitutional limitations on the power of Congress to regulate immigration.'' The fourth plank was an omission. In Yick Wo v. Hopkins, decided only three years earlier, the Court had held a San Francisco ordinance invalid under the 14th Amendment, based on evidence that it was applied dicriminatorily against Chinese launderers. Here the Court never examined whether, by extension, the federal exclusion laws also offended the constitutional guarantee of equal protection of the laws. Finally, Justice Field labeled the government's actions a ``political question'' that barred judicial review. ``Whether a proper consideration by our government of its previous laws, or a proper respect for the nation whose subjects are affected by its action, ought to have qualified its inhibition and made it applicable only to persons departing from the country after the passage of the act are not questions for judicial determination,'' he wrote. During the next decade the Court expanded upon each principle in a series of Asian immigration cases. In Nishimura Ekiu v. United States (1892), it backed an immigration official who refused a Japanese woman admission to the United States, relying on a statute authorizing such refusal if in the official's opinion immigrants were likely to become ``public charges.'' Justice Horace Gray delivered the opinion upholding the act, repeating Field's language about a sovereign nation's power to exclude aliens. Since the statute had granted the officer discretionary power, Gray reasoned, ``no other tribunal. . .is at liberty to reexamine or controvert the sufficiency of the evidence on which he acted.'' A year later, in Fong Yue Ting v. United States (1893), Gray expanded those claims. At issue was whether a Chinese laborer, a U.S. resident for 14 years and, of course, barred from becoming a citizen, could be arrested and expelled for lacking a certificate of residence. Based on the testimony of a Chinese witness, a federal judge had found that the laborer was a permanent resident of the United States. But Gray extended Field's arguments from the Chinese Exclusion case. He recognized an ``absolute and unqualified'' governmental right not just to exclude aliens who have never entered, but ``to expel or deport foreigners, who have not been naturalized or taken any step toward becoming citizens.'' In an incredible catch-22, Gray turned Fong Yue Ting's acceptance of a legal disability (his inability to become a naturalized American citizen) into a justification for barring him from his adopted home. In so doing he rejected both due process and equal protection claims. In Fiss's words, he left ``Yick Wo on the books but denied it any operative effect.'' In 1895 the Court added the last piece of the puzzle. Lem Moon Sing, a Chinese druggist permanently domiciled in San Francisco, visited his native home. Upon being denied reentry in 1894, he provided proof of his prior residence from two credible non-Chinese witnesses, but he was nevertheless restrained and confined. Writing for the Court, the elder Justice John Marshall Harlan upheld the denial of Lem Moon Sing's writ of habeas corpus, reasoning that a decision of an immigration official to deny an alien admission to the United States could not be reexamined in a habeas corpus proceeding (Lem Moon Sing v. United States). The decision had two startling results. First, it transformed the doctrine of plenary federal power over exclusion from a congressional power to an executive authority, once Congress had delegated it to executive officials. Second, the case made clear that courts could not intervene to examine even blatant officials. Thus, as this century began, the Court viewed Congress's power to control immigration--nowhere specified in the Constitution--as complete, inherent and mandated by sovereignty and international law. That power overrode state law, prior treaties and fundamental constitutional protections, and it could be exercised virtually free from judicial scrutiny. A doctrine so sweeping attracted criticism. The extension of the power to exclude, granted in Chinese Exclusion, to deportation and expulsion proved too much even for Justice Field, who not only dissented but also wrote a letter urging that additional members be added to the Court, reasoning that ``where [a] decision goes to the very essentials of Constitutional Government, the question of an increase of the bench may properly be considered and acted upon.'' But as Fiss reveals, the one consistent and enlightened critic of the Asian immigration decisions was Field's nephew, Justice David Brewer, who dissented in Nishimura Ekiu, Fong Yue Ting and Lem Moon Sing, showing the kind of clarity and inde pendence of mind that marked him as the Blackmun of his day. The son of missionary parents in Asia Minor, Brewer was one of the few Justices who sought to understand the role of aliens in the constitutional community. In his Fong Yue Ting dissent, he highlighted the racist character of the law in question, asking, ``In view of this enactment of the highest legislative body of the foremost Christian nation, may not the thoughtful Chinese disciple of Confucius fairly ask, Why do they send missionaries here?'' For all his enlightenment, even Brewer did not argue that the Constitution's protections applied outside the United States. To the contrary, his Fong Yue Ting dissent declared that ``the Constitution has no extraterritorial effect, and those who have not come lawfully within our territory cannot claim any protection from its provisions.'' Years later the Court would exploit that loophole by creating a legal fiction--that even aliens who have physically entered the United States remain legally outside it, thereby intentionally denying even longtime residents of this country meaningful constitutional protection. As the century turned, the question of whether aliens outside the United States have constitutional rights was absorbed by the larger issue of ``whether the Constitution follows the flag''--that is, whether the Constitution extends to the furthest reaches of the emerging American empire. The characteristic executive-branch response to this question, ascribed by Fiss to Secretary of War Elihu Root, was, ``As near as I can make out the Constitution follows the flag--but doesn't quite catch up with it.'' Only one decision ran against the anti-Asian tide: United States v. Wong Kim Ark (1898). That case asked whether children born in the United States of Chinese parents became American citizens by virtue of the 14th Amendments birthright citizenship clause. Given the earlier Chinese decisions, the case seemed an uphill struggle. The Chinese Exclusion Act had denied Wong Kim Ark's parents the opportunity for citizenship through naturalization, and Chae Chan Ping and Fong Yue Ting had settled that those parents could have been deported, expelled or forbidden reentry upon leaving the country. Justice Gray began inauspiciously, asserting that ``the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship. ``Yet surprisingly, he went on to hold that the 14th Amendment denied the federal government the power to withhold citizenship from children born in the United States of alien parents. The decision rested on the birthright citizenship clause, which confers citizenship on U.S.-born persons of parents ``subject to [U.S.] jurisdiction.'' The Court's holding that Chinese parents of American-born children were so subject reaffirmed the themes of sovereignty and absolute territorial jurisdiction that ran through the earlier Chinese cases. Ironically, the decision also seems to have been driven by the potential impact of a contrary holding on ethnic groups other than Asians. As Justice Gray noted, ``To hold that the 14th Amendment . . . excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship of thousands of persons of English, Scotch, Irish, German, or other European parentage, who always have been considered a citizens of the United States. All this might seem like ancient history, made irrelevant by the New Deal, the Warren court, the Bill of Rights revolution and the global era of international human rights. Nor does it seem plausible that blatantly racist laws could survive after Brown v. Board of Education, the end of official racial discrimination and the advent of strict judicial scrutiny. But our government's position in recent cases reveals that immigration is caught in a time warp. Chinese refugees, arriving on Long Island's south shore aboard the Golden Venture, fall squarely within the Chinese Exclusion holding. Poor black Haitian boat people, fleeing persecution after a coup d'etat overthrew their first democratically elected government, encounter as obstacles to their entry into the United States claims of inherent sovereignty and plenary congressional power, allegedly delegated to the President and the Coast Guard. Haitians who raise due process and equal protection claims are told that the Constitution does not protect them on the high seas. Their efforts to invoke multilateral and bilateral refugee treaties similarly founder on American claims of territoriality. When Haitians challenge their summary repatriation to Haiti, our government in its defense cites grounds of foreign policy, national security and nonreviewability. Refused admission as public charges and health risks, HIV-positive Haitian asylum seekers are detained for nearly two years in a U.S. government internment camp at Guantanamo Bay, Cuba, in an eerie parallel of the government's internment of Japanese-Americans during World War II. At this writing, thousands of Haitians are again detained at Guantanamo. Ironically, the question arises whether Haitian children born in the Guantanamo camp are Haitian, Cuban or perhaps even American citizens. Other infamous decisions from the 19th century, such as Dred Scott and Plessy v. Ferguson (which legalized separate but equal), have been overruled, both at law and in the court of public opinion. But the Asian immigration cases of that era--no less shocking--still bear bitter fruit. Today, no public official would embrace the racism, hatred and nativism that drove those decisions. Yet the legal principles they enunciated still rule our borders.