Asian Immigrants and Constitutional History
ASIAN IMMIGRANTS AND CONSTITUTIONAL HISTORY
Most Americans are aware that Asian immigrants have been the victims of racial prejudice and the objects of racially discriminatory laws repeatedly throughout our history. Less widely appreciated is the fact that they have been vigorous in challenging these laws in the courts and that these cases have contributed in important ways to the shaping of the American constitutional order.
Large numbers of Chinese immigrated to the Pacific coastal states, mainly California, during the second half of the nineteenth century. Their presence soon aroused intense racial antagonism, which in turn led to the enactment of numerous state laws and local ordinances designed to make their lives difficult and discourage them from staying. The Chinese tested many of these laws in state or federal court and were successful in having many of them overturned, either on the grounds that they conflicted with the Constitution, with federal civil rights legislation, or with federal treaties.
In Ho Ah Kow v. Nunan (1879), Supreme Court Justice stephen j. field, sitting as a circuit court judge, nullified a San Francisco ordinance requiring all prisoners in the county jail to have their heads shaved to an inch of the scalp. The ordinance was aimed at humiliating Chinese prisoners who wore their hair in a long braided queue. Field ruled that the ordinance violated the Civil Rights Act of 1870, which forbade differential punishments based on race, and the equal protection clause of the fourteenth amendment, which, he declared, the Chinese, though aliens, were entitled to invoke. In the landmark case of yick wo v. hopkins (1886), a San Francisco ordinance had required anyone operating a laundry in a wooden building to obtain the approval of the Board of Supervisors. Some two hundred Chinese laundry proprietors applied for permission but all were refused. Many continued to operate and were arrested, while some eighty Caucasians who did not have permits continued to operate laundries in wooden buildings with impunity. Two arrested Chinese laundrymen, with the support of the Chinese Laundrymen's League, brought separate actions in state and federal court attacking the constitutionality of the ordinance. The Supreme Court ruled that the ordinance as applied contravened the Constitution. The ordinance was suspect, the Court said, because it vested uncontrolled discretion in the supervisors. Such discretion was subject to abuse and here was an example of such abuse. From the evidence one could not help but conclude that the ordinance, though neutral in wording, was being applied in a racially discriminatory manner ("with an evil eye and an unequal hand") and this violated the equal protection clause. It was the first instance in which the Court affirmed that resident aliens, as well as citizens, were protected by the Fourteenth Amendment. Its provisions, the Court declared, applied "to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality."
In 1882 Congress passed the first of several Chinese Exclusion Acts. These acts suspended the coming of Chinese laborers into the country and regulated the rights of laborers already here. The Chinese mounted several legal challenges to these acts that reached the Supreme Court. Among the most noteworthy are chae chan ping v. united states (the Chinese Exclusion Case) (1889) and Fong Yue Ting v. United States (1893).
In Chae Chan Ping, the Chinese plaintiffs challenged a feature of the 1888 act that had the effect of denying entry into the country of Chinese whose right to enter had been guaranteed by an 1880 treaty with China. But the Court held that the United States had plenary and virtually unconstrained power over immigration, that Congress could abrogate the provisions of a treaty by a later law, and that any rights created under the treaty could similarly be cancelled by later legislation. In Fong Yue Ting, the Chinese plaintiffs successfully attacked many features of the 1892 exclusion act, including a section requiring all resident Chinese laborers to apply for and carry identity cards. The Court held that just as the federal government had unconstrained power to exclude foreigners seeking to enter the country it had "absolute" and "unqualified" power to control the residence of those already here. The federal government could set up a system of identification and registration and provide the most summary procedures for deportation. (In subsequent cases, some brought by Chinese immigrants, the Court has backed off somewhat from this extreme position.)
The first Chinese Exclusion Act forbade any state or federal court from granting naturalization to any person of Chinese ancestry. It remained unclear whether children born in the United States to Chinese parents were citizens under the Fourteenth Amendment. According to section 1 of the amendment "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In United States v. Wong Kim Ark (1896), the Court, relying heavily on common law understandings of citizenship, concluded that, save for the children of diplomats, children of whatever ethnicity born in the United States were American citizens.
By 1900 the Chinese population on the West Coast of the United States had diminished substantially, and the Chinese were ceasing to be the flash point for hostility. Attention shifted to another Asian immigrant group, the Japanese, whose numbers were increasing.
Many Japanese gained a foothold in farming. In response California and other Western states passed the Alien Land Laws, limiting the right to own or lease agricultural land to citizens and aliens eligible for citizenship. Japanese would-be purchasers and Caucasian would-be sellers challenged these laws, but in a pair of decisions handed down in 1923—Terrace v. Thompson and Porterfield v. Webb—the Court validated them all. It held that the states, absent a treaty, could legislate against ownership of real property by foreigners and that they could differentiate between classes of foreigners in determining eligibility for ownership rights without violating the equal protection clause.
The most important twentieth-century cases involving Asians, and some of the most important cases in the history of American constitutional law, arose out of the forcible relocation and internment of over 100,000 Japanese Americans during world war ii. In the wake of the declaration of war on Japan military authorities on the West Coast, with the approval of President franklin d. roosevelt and Congress, issued a series of orders, among other things, imposing a curfew on persons of Japanese ancestry, forbidding them to leave certain designated areas, and ordering them into assembly centers for removal to detention camps. The legitimacy of the orders was attacked in a series of cases brought by American citizens of Japanese ancestry. These tested, as perhaps never before or since, the power of the national government to curtail individual civil liberties.
In Hirabayashi v. United States (1943), the Court upheld the curfew as a valid exercise of the federal government's broad discretion under the war power. In the exercise of that power, the government could infringe radically on civil liberties during wartime and could even do so on a racial basis so long as it could offer a rational justification for the decision. While acknowledging that racial distinctions were by their nature odious to a free people, the Court emphasized that the judiciary was not competent to second-guess the military's judgment.
In korematsu v. united states (1944), the Court affirmed the conviction of a Japanese American for remaining in a designated area against military orders. Korematsu argued that the order was part of an overall plan of forcible removal to detention camps, but the majority opinion of Justice hugo l. black, over three dissents, refused to address that issue. (Justice frank murphy, noting the racial stereotyping that ran through the government's justification of its actions, characterized them as falling into the "ugly abyss of racism.") Significantly, the Court did say that racially discriminatory laws were "suspect," subject to "the most rigid [judicial] scrutiny," and could be justified only by "pressing public necessity." This statement implied clearly that the federal government was bound by the equal protection principle even if not, literally, by the Fourteenth Amendment equal protection clause itself. (It may be doubted whether the Court applied its own test in the Korematsu case.) In Ex parte Endo (1944), decided the same day, the Court, while again refusing to rule on the validity of the use of detention camps, held that the military could not continue to detain a Japanese American woman whose loyalty it had conceded.
Two cases involving the rights of Asian citizens or residents decided in the immediate post–World War II period deserve discussion. In Oyama v. California (1948), the Court revisited the Alien Land Laws. A Japanese national living in California had paid the purchase price for agricultural land and put title in the name of his U.S. citizen son. Under California law this transaction created a presumption that the purchase had been consummated with the intention of evading the Alien Land Law, and the state Attorney General began proceedings to forfeit the land. The Court ruled that the provision violated the equal protection rights of the citizen son. It refused, however, to invalidate the law itself.
A few months later the Court struck down another piece of anti-Japanese legislation. In takahashi v. fish and game commission (1948), the Court nullified a California law denying commercial fishing licenses to resident aliens ineligible for citizenship. (By this time virtually all other Asians had been made eligible for naturalization; thus, the law in practice affected only Japanese fishermen.) Aliens lawfully present in a state had the right to equal legal privileges with all citizens, the Court held. These legal privileges included the right to work for a living, and this right trumped the state's asserted interest in conserving fish within its territorial waters for the benefit of its citizens.
Cases brought by nineteenth-century Chinese immigrants helped establish several important and enduring Fourteenth Amendment principles, among them: (1) that persons born in the United States of alien parents are citizens of the United States, (2) that persons resident in the United States, whether citizens or not, are entitled to dueprocess of law and the equal protection of the laws, making them immune from state-sponsored discrimination at least in most areas of life, and (3) that laws equal on their face can violate the equal protection clause if administered in a discriminatory manner. The Chinese Exclusion Act cases, as noted above, are the fundament on which the modern constitutional law of immigration was built.
The postwar and wartime japanese american cases are significant milestones in the evolution of the modern constitutional order. Oyama and Takahashi extended Fourteenth Amendment equal protection analysis into areas of state regulation previously thought free from such scrutiny and are harbingers of the robust presence the equal protection clause was beginning to assume in constitutional law. The Japanese American curfew and relocation cases, on their face so inhospitable to the nondiscrimination principle, contributed in their own ironic way to the growth of that principle. Both Hirabayashi and Korematsu recognized that racial distinctions were odious. And in Korematsu, Justice Black, even while approving one of the most racially invidious classification schemes in our history, articulated a test that would eventually prove to be fatal when applied to racial classification schemes, whether sanctioned by the state or federal government.
Charles J. Mc c lain
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Mc Clain, Charles J. 1994 In Search of Equality: the Chinese Struggle Against Discrimination in Nineteenth-Century America. Berkeley: University of California Press.
——, ed. 1994 Asian Americans and the Law: Historical and Contemporary Perspectives, 4 vols. New York: Garland Publishing.
Salyer, Lucy E. 1995 Law Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law. Chapel Hill: University of North Carolina Press.