Thirty years ago, the Supreme Court decided Plyler v. Doe, 457 U.S. 202 (1982). We stand at a delicately poised moment in American law and politics. On the June 15, 2012, anniversary of Plyler, an executive order enabled many illegal aliens brought to the United States as children to remain in the country and, under certain conditions, to qualify eventually for citizenship. As of this very moment, we await the Supreme Court's decision in Arizona v. United States, No. 11-182 (cert. granted, Dec. 9, 2011; argued, April 25, 2012). In a forum that has taken pains to praise United States v. Wong Kim Ark, 169 U.S. 649 (1898), and the interests of new Americans, whether they are or are not born in the U.S.A., I think it is entirely appropriate on this occasion to highlight my three favorite passages from Plyler:
- "Undocumented aliens cannot be treated as a suspect class, because their presence in this country in violation of federal law is not a "constitutional irrelevancy." Nor is education a fundamental right; a State need not justify by compelling necessity every variation in the manner in which education is provided to its population. But more is involved in these cases than the abstract question whether [Texas law] discriminates against a suspect class, or whether education is a fundamental right. [The law] imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining the rationality of [this law], we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in [this law] can hardly be considered rational unless it furthers some substantial goal of the State." 457 U.S. at 223-24 (citations omitted).
- "It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation." 457 U.S. at 230.
- "The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection." 457 U.S. at 213.
- Don't let constitutional doctrine get in the way of the right result.
- Condemning children to lifelong ostracization and social disability, especially for their parents' mistakes, is rarely if ever the right result. Cf. Levy v. Louisiana, 391 U.S. 68 (1968).
- When in doubt, remember that the United States Constitution should aspire to something. As default goals go, greatness will do.