Asian Americans and the Constitution

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ASIAN AMERICANS AND THE CONSTITUTION

Asians first arrived in the United States in substantial numbers in the mid-nineteenth century. Initially tolerated, these Chinese laborers were soon vilified, especially when the economy soured. By 1882, Congress enacted the chinese exclusion act, the first federal race-based restriction on immigration. Frustrated with what were viewed as loopholes, Congress passed the Scott Act in 1888, which retroactively denied reentry of tens of thousands of Chinese, even those who held official certificates guaranteeing their right to return. In chae chan ping v. united states (1889) (the Chinese Exclusion Case), the Supreme Court explained that the due process rights of these Chinese were not violated. As an incident to sovereignty, Congress could defend America against an "Oriental invasion" by revoking at will whatever residency permission previously granted.

In 1892, Congress took another drastic step by passing the Geary Act, which created a registration requirement for all Chinese laborers. Those found without proper papers could be summarily deported unless they could prove their legal residence through "at least one credible white witness." In Fong Yue Ting v. United States (1893), the Court upheld this act and emphasized that Congress's inherent power to exclude aliens—made clear in ChaeChan Ping—also included the power to deport. In these and two other cases involving Asians, Nishimura Ekiu v. United States (1892) and Yamataya v. Fisher (1903), the Court established Congress's plenary power over immigration, the exercise of which remains subject to cursory judicial review.

Exclusion of Asian Americans reached beyond the physical border to the political border of citizenship. The first naturalization statute, passed in 1790, restricted naturalization to "free white persons," and was amended after the civil war to include persons of African descent. In Ozawa v. United States (1922), a person of Japanese ancestry argued that he should be eligible for citizenship because "white" was a catch-all category excluding only blacks and american indians. The Court rejected this argument and explained that white meant Caucasian, an equivalence "so well established" that it could not be disturbed.

The next year, an Asian Indian argued that under prevailing ethnological theories, he was in fact Caucasian and thus eligible for citizenship. In United States v. Thind (1923), the Court backed away from the equivalence it had drawn just one year before. Instead of interpreting "white" as Caucasian (considered to be a technical term of art), the Court now opted to interpret "white" in its popular sense. On this view, "white" meant people who looked Northwest European, who were "bone of their bone and flesh of their flesh." Thus, "white" would not include "Hindus" who would retain "indefinitely the clear evidence of their ancestry."

The one bright spot in the Court's immigration jurisprudence for Asian Americans is wong kim ark v. united states (1898). There, the Court first recognized that the fourteenth amendment granted citizenship to all persons born on American soil—even to the unpopular Chinese.

The prejudices that fueled physical and political exclusion also burdened Asian Americans' daily lives. In the 1880s, for example, San Francisco manipulated facially neutral ordinances to close Chinese laundries while keeping White laundries open. Surprisingly, in yick wo v. hopkins (1886), the Court held that this biased exercise of discretion violated the Fourteenth Amendment's equal protection clause. This victory, however, was exceptional. Consider, for instance, the initial upholding of the alien land laws. Threatened by Japanese competition in farming, white agricultural interests persuaded Western state governments to forbid "aliens ineligible for citizenship" (the code phrase for Asians) from owning land. In Terrace v. Thompson (1923) and Porterfield v. Webb (1923), the Court concluded that these laws did not amount to racial discrimination and that states could limit property ownership to citizens. Eventually, after world war ii and the related internment of Japanese Americans, the Court began to express doubts about the continuing constitutionality of alien land laws in oyama v. california (1948) and of related laws barring "aliens ineligible for citizenship" from certain lines of work (such as fishing) in takahashi v. fish and game commission (1948). Following the Court's cues, various state supreme courts and legislatures removed these laws in the 1950s and 1960s.

As another example, consider how Asian Americans were often subject to educational segregation. When challenged on equal protection grounds, the Court held in gong lum v. rice (1927) that a Chinese American girl could be forced to attend the "colored" school. On the authority of plessy v. ferguson (1896), separate was deemed equal for Asians as it was for blacks.

The Constitution's most tragic failure of Asian Americans occurred just one-half century ago with the internment of approximately 120,000 persons of Japanese descent. Over two-thirds were American citizens, mostly young children born on American soil. Blinded by prejudice, America could not distinguish between the enemy Japan and Americans who happened to be of Japanese descent.

The internment plan, which comprised curfew, evacuation, and detention orders, was challenged in the japanese american cases. In Hirabayashi v. United States (1943) and Yasui v. United States (1943), the Court addressed only the narrow question of curfews and concluded that "[r]easonably prudent men" had "ample ground" and "[s]ubstantial basis" to believe that Japanese Americans might "aid a threatened enemy invasion." In korematsu v. united states (1943), the Court again refused to address the constitutionality of the total internment plan and addressed only the evacuation orders. The Court introduced what would evolve into the suspect classifications doctrine of equal protection law, that "all legal restrictions which curtail the civil rights of any single racial group are immediately suspect." Despite this suggestion of heightened scrutiny, the Court deferred to the government's claims of military necessity. The majority insisted that Korematsu was evacuated not "because of hostility to him or his race…but because we are at war with the Japanese Empire." Perhaps the Court's misstep was caused by the government's suppression of exculpatory evidence, uncovered four decades later. On the other hand, even without such evidence, Justice frank murphy knew enough to call the majority opinion a fall into "the ugly abyss of racism."

Only in the final case, Endo v. United States (1943), did the Court confront the issue of indefinite detention of concededly loyal Americans of Japanese descent. But even here, the Court avoided striking down such detention as unconstitutional. Instead, it decided the case on statutory grounds and declared that the War Relocation Authority, which managed the internment camps, had gone beyond its delegated powers. In other words, indefinite detention was the work of rogue bureaucrats, not President franklin d. roosevelt or the Congress. In sum, the Constitution has been an unreliable ally in the Asian American struggle for civil rights.

Jerry Kang
(2000)