Between two Americas: in the post-Sept. 11 era, state and local governments are being forced to choose sides on the immigrant rights debate.(Cover)(Cover Story)

Philadelphia, San Francisco, Alaska, and Vermont are among the 120-plus cities and states that have passed resolutions denouncing the Patriot Act as a "threat to fundamental rights." Yet Alabama, Colorado and Los Angeles County are seeking arrangements with the Department of Homeland Security to help enforce immigration laws, a precursor of things to come if the proposed federal CLEAR Act is enacted. (The CLEAR Act would require state and local police to enforce federal, civil immigration laws. This means that local police would be charged with investigating students who have dropped from full-time to part-time status, individuals who have remained in the U.S. longer than the date on their tourist visa allows, or businesses that have hired immigrants without legal papers.) In New York City, a coalition of elected officials, labor unions and community groups are pushing a proposal to extend the right to vote in local elections to lawful resident aliens; five towns in Maryland already allow noncitizens--even the undocumented--to vote in local elections. But in California where the plot to introduce the "son of Proposition 187" has been hatched, one of Arnold Schwarzenneger's first acts as governor was to cancel the right of undocumented workers to drivers' licenses.

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The bidirectional actions of state and local entities is emblematic of the two Americas in which we live. Both begin with the understanding that America is a land of immigrants. One America has embraced the notion of welcoming newcomers from different parts of the world, although depending on the era, even this more welcoming perspective may not have been open to people from certain parts of the world or of different cultural and ethnic backgrounds. The other America has remained largely mired in a Eurocentric (originally western Eurocentric) vision of America that idealized the true American as white, Anglo-Saxon, English-speaking and Christian. For the most part, this America has opposed more immigration, especially from regions of the world that are not white or supportive of our brand of democracy. So even though we are a "land of immigrants," we are also a land that has debated immigration policy since the revolutionary period.

Local efforts to control immigration generally are considered unconstitutional. At first, the U.S. Supreme Court permitted state laws and local ordinances that targeted immigrants of color to stand. Those laws generally were intended to make life challenging for those immigrants. For example, California's foreign miners tax was first aimed at Latin migrants, then Asians. And California's infamous alien land law of 1912 (mimicked by other states and upheld by the Supreme Court in 1923) targeted all Asian immigrants--especially Japanese and Indians who had become successful farmers. In several parts of the country, Asian Americans, like blacks, were forced into segregated school systems under the country's apartheid-like "separate but equal" principle (again upheld by the Supreme Court in 1927). A noteworthy exception to the Supreme Court's early deference to states' rights in the immigration field was in Yick Wo v. Hopkins (1886), where the Court struck down San Francisco's no-wooden-laundries restrictions aimed at Chinese on an economic rights principle.

The Supreme Court had long recognized that the Constitution granted the federal Congress virtually unlimited ("plenary") power over the admission and exclusion of immigrants. Eventually the Court expanded that concept by holding that Congress had preempted the field, leaving the states without authority to enact laws that smacked of regulating immigration. Thus, the Supreme Court disapproved of alien land laws and fishing license restrictions in cases brought by Japanese Americans in 1948. The Court even threw out state attempts to bar lawful resident aliens from becoming lawyers or practicing other ...