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70 Wash. L. Rev. 629 (1995)
An Essay on Immigration Politics, Popular Democracy, and California's Proposition 187: The Political Relevance and Legal Irrelevance of Race

handle is hein.journals/washlr70 and id is 639 raw text is: Copyright 0 1995 by Washington Law Review Association

AN ESSAY ON IMMIGRATION POLITICS, POPULAR
DEMOCRACY, AND CALIFORNIA'S PROPOSITION 187:
THE POLITICAL RELEVANCE AND LEGAL
IRRELEVANCE OF RACE
Kevin R. Johnson*
In elegantly referring to government of the people, by the people, and
for the people,' Abraham Lincoln famously tapped into the nation's
enthusiasm for democracy. From the founding of this nation, however,
the potential excesses of democracy also have generated considerable
concern.2 In an attempt to avoid such excesses, the Constitution
moderates popular sentiment through a representative form of
government.3
An odd combination of devotion to and ambivalence about democracy
carries forward to this day. The debates over civic republicanism, for
example, reflect differing visions about the benefits of a more democratic
government. Some applaud an expanded role for the people in
governance while others express fear about how the majority might treat
the minority.4 Similarly, conflicting views about trial by jury typify the
sharp disagreements about democracy in action. While juries are often
* Professor of Law, University of California at Davis. A-B. 1980, University of California,
Berkeley; J.D. 1983, Harvard University. This Article was prepared for the immigration symposium
held at the University of Washington School of Law in May 1995. Mary Waltermire, Mark Windsor,
Minty Siu Chung, E. Dion Costa, and Nipa Rahim provided excellent research and editorial
assistance. Vik Amar, Arturo Gfndara, Bill Ong Hing, Gerald Neuman, Peter Reich, and Michael
Scaperlanda offered helpful comments on a draft of this Article. Special thanks to Dean Wallace
Loh, Joan Fitzpatrick, and the Washington Law Review for inviting me to participate in the
Symposium and for extending gracious hospitality during my stay in Seattle. Finally, I appreciate the
financial and other support of the U.C. Davis School of Law.
1. Gettysburg Address (Nov. 19, 1863), reproduced in Garry Wills, Lincoln at Gettysburg 261
(1992) (analyzing intellectual foundations for Lincoln's famous speech).
2. See Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall 7
(1989) (Americans of the Revolutionary era were profoundly ambivalent about democracy.);
Terrance Sandalow, Judicial Protection of Minorities, 75 Mich. L. Rev. 1162, 1164 (1977) (The
concern that democratic government will provide inadequate protection for minorities is as old as the
nation-perhaps as old as the idea of democracy itself.).
3. See infra text accompanying notes 61-74 (analyzing framers' concerns with direct democracy).
4. Compare Cass R. Sunstein, Beyond the Republican Revival, 97 Yale L.J. 1539 (1988) (arguing
that liberal republican ideas suggest need for reform of a number of areas of public law) with Derrick
Bell & Preeta Bansal, The Republican Revival and Racial Politics, 97 Yale L.J. 1609 (1988)
(expressing skepticism about what Republican revival has to offer people of color).

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