[Congressional Record Volume 141, Number 3 (Friday, January 6, 1995)]
[Senate]
[Pages S569-S571]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


              BITTER FRUIT OF THE ASIAN IMMIGRATION CASES

 Mr. SIMON. Mr. President, in an unusual publication called 
simply ``Constitution,'' published by the Foundation for the United 
States Constitution, there is an article by Professor Harold Hongju Koh 
of Yale University titled, ``Bitter Fruit of the Asian Immigration 
Cases.''
  It interested me because of my long association with the cause of 
civil rights and because I grew up in the State of Oregon and recall 
the criticism my father took when, as a Lutheran minister, he objected 
to the 1942 unconstitutional transfer of Japanese American citizens 
away from the West Coast. Another reason for my interest is that I 
serve on the Senate Judiciary's Subcommittee on Immigration and Refugee 
Affairs.
  Our record in the field of immigration has not always been a good 
one, and that is particularly true as it applies to the Asian 
community.
  There is no question that we face problems in the field of 
immigration, but the answer is not passing things like Proposition 187 
in California or the other abuses that we have tolerated through the 
history of our country.
  I believe my colleagues will find the article by Professor Koh a 
matter of more than casual interest.
  At this point, I ask that it be printed in the Record.
  The article follows:

              Bitter Fruit of the Asian Immigration Cases

                         (By Harold Hongju Koh)

       Schoolchildren everywhere can recite the Statue of 
     Liberty's inspirational message about ``huddled masses, 
     yearning to breathe free.'' Yet history shows that our 
     national attitude toward immigrants has been as hostile as it 
     has been solicitious--especially in hard times. One need only 
     look at today's headlines. As we endure our latest recession, 
     newspapers report polls showing that 60 percent of Americans 
     believe current levels of immigration are too high. News 
     stories tell of the government's harsh policies toward 
     Haitian and Chinese refugees, of public concern over the 
     illicit smuggling of aliens, of anti-immigrant sentiment 
     spurred by the World Trade Center bombing, and of lawsuits 
     brought by California, Texas and Florida against the federal 
     government to recoup costs arising from the influx of 
     undocumented aliens. Politicians, says the New York Times, 
     call for ``a get-tough effort to control immigration . . . 
     prompted by polls showing that the issue is gaining an 
     importance among voters . . . increasingly worried about the 
     economic impact of immigrants and their effect on American 
     culture.''
       Not only is immigrant bashing as American as apple pie, but 
     bias against immigrants has helped shape our constitutional 
     law. Occasionally, the bias has been overt: a proposed 
     constitutional amendment, for example, (favored, apparently, 
     by 49 percent of Americans) would
      deny citizenship to the American-born children of 
     undocumented aliens. And ``reforms'' that hurt immigrants 
     have emerged as themes embroidered on Supreme Court 
     decisions. It has been a long time since Justice Harry 
     Blackmun led a unanimous Supreme Court to declare that 
     ``aliens as a class are a prime example of a discrete and 
     insular minority . . . for whom . . . heightened judicial 
     solicitude is appropriate'' Graham v. Richardson, 1971). 
     His last major immigration opinion Sale v. Haitian Centers 
     Council, 1993) was a solitary dissent decrying the summary 
     return of Haitian refugees to a brutal dictatorship 
     without first granting them a hearing. In his dissent, 
     Blackmun laid bare the themes that run through the modern 
     Court's immigration and naturalization jurisprudence: an 
     obsession with sovereignty and governmental power, an 
     unwillingness to scrutinize the immigration decisions of 
     government officials, contempt for international law and 
     indifference to the due process and equal protection 
     claims of foreigners seeking entry to the United States.
       Where and when did these attitudes originate? The latest 
     volume of the Oliver Wendell Holmes Devise: History of the 
     Supreme Court, Owen Fiss's impressive Troubled Beginnings of 
     the Modern State, 1888-1910, illuminates a source: a series 
     of Asian immigration cases decided by the Court in the late 
     19th century. Before these cases, immigration into the United 
     States went virtually unregulated, driven by the perceived 
     need to remedy underpopulation. Indeed, the Declaration of 
     Independence assailed the King of England for ``endeavor[ing] 
     to prevent the Population of these States; for that Purpose 
     obstructing the Laws for Naturalization of Foreigners; [and] 
     refusing to pass others to encourage their Migrations hither. 
     . . .'' The Constitution's framers responded with the fourth 
     clause of Article I, Section 8, which granted Congress power 
     to ``establish an uniform Rule of Naturalization.'' In 1790 
     Congress invoked new power to pass a law permitting only 
     ``free white persons'' to naturalize, a right not granted to 
     Asian immigrants until 1952.
       Significantly, this language did not authorize Congress to 
     regulate the admission of aliens who might seek citizenship. 
     In fact, another clause of Article I forbade Congress to 
     prohibit the ``Migration or Importation of such Persons as 
     any of the States now existing shall think proper to admit'' 
     before 1808. Designed to protect the slave trade, the clause 
     was invoked by Jeffersonians to challenge the 
     constitutionality of the Alien Act of 1798, which authorized 
     the President to expel ``all such aliens as he shall judge 
     dangerous to the peace and safety of the United States.''
       During the years of free immigration few Asians came to 
     these shores. Between 1820, when immigration records were 
     first kept, and 1849, when the California Gold Rush began, 
     only 43 Chinese were reported to have arrived in America. But 
     once gold was discovered, thousands of Chinese miners flooded 
     into ``Kumshan''--the Golden Moutain--as they called 
     California. In 1850, 4,000 Chinese arrived in California. The 
     next year the Chinese population stood at 25,000; in 1852, 
     45,000. These immigrants--mostly men who had left their 
     families in China--came to work the mines. But by the mid-
     1860s, thousands had depleted their mining claims or been 
     forced off them. They found work on the western slopes of the 
     Sierra Nevada, building the Central Pacific Railroad; in one 
     year the company procured 15,000 laborers. Other Chinese 
     opened laundries, restaurants and small shops, or worked as 
     gardeners, domestic servants, farmers, fishermen, mechanics 
     and artisans. By the mid-1870s, some 115,000 Chinese lived in 
     the United States, 70 percent in California, where one person 
     in 10 was Chinese.
       The first Chinese were welcomed with curiosity. In 1852 the 
     governor of California claimed he wanted ``further 
     immigration and settlement of the Chinese--one of the most 
     worthy classes of our newly adopted citizens.'' But by the 
     1860s hospitality had soured. White workers assailed the 
     Chinese for working too hard for too little, while the 
     popular press vilified them as lairs, criminals, prostitutes 
     and opium addicts.
       Unlike the European immigrants then flooding into the 
     United States, the Chinese were thought unassimilable. In 
     Justice Stephen Field's works, ``they remained strangers in 
     the land, residing apart by themselves, and adhering to the 
     customs and usages of their own country. As they grew in 
     numbers each year, the people of the [West] coast saw, or 
     believed they saw . . . great danger that at no distant day 
     that portion of our country would be overrun by them unless 
     prompt action was taken to restrict their immigration.'' When 
     drought and depression hit California in the early 1860s, the 
     Chinese were scapegoated. ``To an American,'' the 1876 
     manifesto of the Workingmen's Party of California declared, 
     ``death is preferable to life on a par with the Chinaman.''
        California and its cities began to enact restrictive laws. 
     The first were revenue measures (such as entry, license and 
     occupation taxes) and other laws neutral on their face but 
     applied harshly against the Chinese. Chinese paid 98 percent 
     of the monies collected under the California Foreign Miner's 
     Tax, for example, and an 1870 law authorizing the state's 
     immigration commissioner to remove ``debauched women'' was 
     quickly applied to Chinese women arriving by ship. Soon the 
     laws became overtly racist; a San Francisco ordinance 
     required all Chinese residents to move to prescribed 
     ghettoes, and another humiliated Chinese prisoners in the 
     county jail by requiring them to cut their queues to one inch 
     in length. Between 1855 and 1870 California passed acts 
     bearing such titles as ``An Act to Discourage the Immigration 
     to This State of Persons Who Cannot Become Citizens,'' ``An 
     Act to Protect Free White Labor Against Competition with 
     Chinese Coolie Labor'' and ``An Act to Prevent the Further 
     Immigration of Chinese or Mongolians to This State.'' Chinese 
     were denied the vote and the rights to own or inherit land, 
     to testify in court, to attend public schools with 
     [[Page S570]] whites or to live in the same neighborhoods as 
     whites. In 1879 California's new constitution asserted that 
     ``the presence of foreigners ineligible to become citizens . 
     . . is dangerous to the well-being of the State, and the 
     Legislature shall discourage their immigration by all means 
     within its power.''
       Meanwhile, assaults on the Chinese became commonplace. In 
     1871 a Los Angeles race riot killed 19 Chinese. In September 
     1885, 28 Chinese laborers in a settlement near Rock Springs, 
     Wyoming, were brutally murdered, and vigilantes killed 
     several Chinese residents of the Washington territories. The 
     next year mobs invaded the Chinese sections of several West 
     Coast cities and forced residents out. Across Washington, 
     Oregon and California, mass meetings demanded the expulsion 
     of Chinese.
        California's restrictiveness contrasted sharply with 
     federal immigration policy. An 1868 act of Congress declared 
     that the right to leave the land of one's
      birth and resettle elsewhere was ``a natural and inherent 
     right of all people,'' in recognition of which the United 
     states ``has freely received emigrants from all nations 
     and invested them with rights of citizenship.'' That year 
     the United States and China concluded the Burlingame 
     Treaty to improve trade with China and encourage the 
     immigration of coolies to build the railroads. The treaty 
     recognized that free migration and an ``inherent and 
     inalienable right of man to change his home and 
     allegiance'' were matters of ``mutual advantage'' for both 
     nations. by its terms, Chinese could become ``permanent 
     residents'' of the United States. Federal receptivity 
     extended not just to immigration but also to citizenship 
     by birth. In 1866, two years before the Burlingame Treaty, 
     Congress passed a civil rights law (designed to overturn 
     the 1857 Dred Scott decision) that reaffirmed the 
     citizenship of native-born blacks. Its language was echoed 
     in the birthright citizenship clause of Section 1 of the 
     14th Amendment, soon to be drafted by Congress: ``All 
     persons born or naturalized in the United States and 
     subject to the jurisdiction thereof, are citizens of the 
     United States and of the State wherein they reside.'' 
     California Senator John Conness supported this language 
     and declared his desire for equal rights for children of 
     Chinese parentage. By accepting the clause, notes 
     constitutional scholar Gerald Neuman, Congress ``refused 
     the invitation to create an hereditary caste of voteless 
     denizens, vulnerable to expulsion and exploitation.''
       But the tide soon changed. In 1872 political pressure led 
     President Ulysses S. Grant to call for legislation to 
     counteract the evils associated with Chinese immigration. The 
     resulting Immigration Act of 1875 was the first federal 
     legislation to control immigration. It outlawed contracts to 
     supply coolie labor, barred importation of aliens without 
     their consent and made it illegal to bring in women for 
     purposes of prostitution. As applied against the Chinese, the 
     restrictionist statute seemed inconsistent with the spirit of 
     the Burlingame Treaty. Four years later President Rutherford 
     Hayes invoked the treaty to veto a bill forbidding ships to 
     bring more than 15 Chinese at a time into the country. But in 
     1880, under pressure from Congress, Hayes renegotiated the 
     Burlingame Treaty to recognize America's right to regulate, 
     limit and suspend Chinese immigration. Two years later 
     Congress enacted the first Chinese Exclusion Act, which 
     suspended immigration of Chinese, with minor exceptions, for 
     10 years. That law was amended and reenacted repeatedly and 
     was not finally revoked until 1943. The 1882 act expressly 
     prohibited the naturalization of Chinese as American citizens 
     and denied entry to the wives of Chinese, even permanent U.S. 
     residents--a restriction that continued for the next 60 
     years. This shortage of women forced many Chinese laborers to 
     return to China simply to marry or have families. In 1884 
     Congress amended the exclusion law to require returning 
     Chinese laborers to produce certificates of residence signed 
     by two non-Chinese American citizens--a requisite designed to 
     thwart ``the notorious capabilities of the lower classes of 
     Chinese for perjury.''
       The act was soon challenged. Chae Chan Ping, a Chinese 
     laborer who had entered the United States lawfully in 1875, 
     obtained the required certificate of residence before 
     visiting China in 1887. In 1888, shortly before he was to 
     return, Congress amended the Exclusion Act to revoke all 
     reentry certificates. Chae Chan Ping was denied reentry, and 
     he sued. He challenged the amended Chinese Exclusion Act on 
     the grounds that it violated the Constitution's due process 
     and equal protection clauses and conflicted with the 
     Burlingame Treaty.
       In other times his case would have seemed easy. But a 
     unanimous Court rejected his claim and in the process laid 
     down the five planks of our modern immigration jurisprudence. 
     Justice Stephen J. Field wrote the opinion.
       The first plank came with Field's title, the Chinese 
     Exclusion case, an inapt name for a case that actually 
     concerned the reentry of a longtime resident. By framing the 
     case as an analysis of the federal government's supposed 
     power to exclude, Field portrayed Chae Chan Ping's claim as 
     an assault on the Chinese Exclusion Act, which he defined as 
     the statutory expression of an inherent, unenumerated 
     foreign-affairs power that lay beyond substantive 
     constitutional attack. This power, he said, was an essential 
     feature of national sovereignty. That ``the government of the 
     United States. . .can exclude aliens from its territories,'' 
     he declared, ``is a proposition which we do not think open to 
     controversy. . .The power of exclusion of foreigners being an 
     incident of sovereignty belonging to the government of the 
     United States, as a part of those sovereign powers delegated 
     by the Constitution, the right to its exercise at any time, 
     when, in the judgment of the government, the interests of the 
     country require it, cannot be granted away or restrained on 
     behalf of any one.''
       Justice Field conceded that the 1888 act violated the open 
     terms of the Burlingame Treaty. But, he concluded, the act 
     was ``not on that account invalid,'' since statutes and 
     treaties are equivalent federal laws, and the most recent 
     controls. In effect, he suggested, laying down what became 
     the second plank of the Court's immigration jurisprudence, 
     Congress has the power not just to disregard but also to 
     abrogate solemn treaty obligations.
       Third, Field noted, a Chinese laborer's right to reenter 
     the United States ``is held at the will of the government, 
     revocable at any time, at its pleasure,'' despite any due 
     process claim. Although the Court did not elaborate on that 
     conclusion, later decisions have construed it as resting on 
     several implicit premises: that perhaps the Constitution does 
     not apply to aliens outside the United States; that a 
     person's right to return home is neither a ``liberty'' nor a 
     ``property'' interest protected by constitutional due 
     process; or that an individual's due process interest can be 
     outweighed by the public's interest in ``preserv[ing] its 
     independence, and giving] security against foreign aggression 
     and encroachment.'' As the constitutional scholar Louis 
     Henkin has noted, ``whatever the Court intended, both its 
     holding and its sweeping dictum have been taken to mean that 
     there are no constitutional limitations on the power of 
     Congress to regulate immigration.''
       The fourth plank was an omission. In Yick Wo v. Hopkins, 
     decided only three years earlier, the Court had held a San 
     Francisco ordinance invalid under the 14th Amendment, based 
     on evidence that it was applied dicriminatorily against 
     Chinese launderers. Here the Court never examined whether, by 
     extension, the federal exclusion laws also offended the 
     constitutional guarantee of equal protection of the laws.
       Finally, Justice Field labeled the government's actions a 
     ``political question'' that barred judicial review. ``Whether 
     a proper consideration by our government of its previous 
     laws, or a proper respect for the nation whose subjects are 
     affected by its action, ought to have qualified its 
     inhibition and made it applicable only to persons departing 
     from the country after the passage of the act are not 
     questions for judicial determination,'' he wrote.
       During the next decade the Court expanded upon each 
     principle in a series of Asian immigration cases. In 
     Nishimura Ekiu v. United States (1892), it backed an 
     immigration official who refused a Japanese woman admission 
     to the United States, relying on a statute authorizing such 
     refusal if in the official's opinion immigrants were likely 
     to become ``public charges.'' Justice Horace Gray delivered 
     the opinion upholding the act, repeating Field's language 
     about a sovereign nation's power to exclude aliens. Since the 
     statute had granted the officer discretionary power, Gray 
     reasoned, ``no other tribunal. . .is at liberty to reexamine 
     or controvert the sufficiency of the evidence on which he 
     acted.''
       A year later, in Fong Yue Ting v. United States (1893), 
     Gray expanded those claims. At issue was whether a Chinese 
     laborer, a U.S. resident for 14 years and, of course, barred 
     from becoming a citizen, could be arrested and expelled for 
     lacking a certificate of residence. Based on the testimony of 
     a Chinese witness, a federal judge had found that the laborer 
     was a permanent resident of the United States. But Gray 
     extended Field's arguments from the Chinese Exclusion case. 
     He recognized an ``absolute and unqualified'' governmental 
     right not just to exclude aliens who have never entered, but 
     ``to expel or deport foreigners, who have not been 
     naturalized or taken any step toward becoming citizens.'' In 
     an incredible catch-22, Gray turned Fong Yue Ting's 
     acceptance of a legal disability (his inability to become a 
     naturalized American citizen) into a justification for 
     barring him from his adopted home. In so doing he rejected 
     both due process and equal protection claims. In Fiss's 
     words, he left ``Yick Wo on the books but denied it any 
     operative effect.''
       In 1895 the Court added the last piece of the puzzle. Lem 
     Moon Sing, a Chinese druggist permanently domiciled in San 
     Francisco, visited his native home. Upon being denied reentry 
     in 1894, he provided proof of his prior residence from two 
     credible non-Chinese witnesses, but he was nevertheless 
     restrained and confined. Writing for the Court, the elder 
     Justice John Marshall Harlan upheld the denial of Lem Moon 
     Sing's writ of habeas corpus, reasoning that a decision of an 
     immigration official to deny an alien admission to the United 
     States could not be reexamined in a habeas corpus proceeding 
     (Lem Moon Sing v. United States). The decision had two 
     startling results. First, it transformed the doctrine of 
     plenary federal power over exclusion from a congressional 
     power to an executive authority, once Congress had delegated 
     it to executive officials. Second, the case made clear that 
     courts could not intervene to examine even blatant 
     [[Page S571]] misuses of the exclusion power by immigration 
     officials. Thus, as this century began, the Court viewed 
     Congress's power to control immigration--nowhere specified in 
     the Constitution--as complete, inherent and mandated by 
     sovereignty and international law. That power overrode state 
     law, prior treaties and fundamental constitutional 
     protections, and it could be exercised virtually free from 
     judicial scrutiny.
       A doctrine so sweeping attracted criticism. The extension 
     of the power to exclude, granted in Chinese Exclusion, to 
     deportation and expulsion proved too much even for Justice 
     Field, who not only dissented but also wrote a letter urging 
     that additional members be added to the Court, reasoning that 
     ``where [a] decision goes to the very essentials of 
     Constitutional Government, the question of an increase of the 
     bench may properly be considered and acted upon.'' But as 
     Fiss reveals, the one consistent and enlightened critic of 
     the Asian immigration decisions was Field's nephew, Justice 
     David Brewer, who dissented in Nishimura Ekiu, Fong Yue Ting 
     and Lem Moon Sing, showing the kind of clarity and inde
      pendence of mind that marked him as the Blackmun of his day. 
     The son of missionary parents in Asia Minor, Brewer was 
     one of the few Justices who sought to understand the role 
     of aliens in the constitutional community. In his Fong Yue 
     Ting dissent, he highlighted the racist character of the 
     law in question, asking, ``In view of this enactment of 
     the highest legislative body of the foremost Christian 
     nation, may not the thoughtful Chinese disciple of 
     Confucius fairly ask, Why do they send missionaries 
     here?''
       For all his enlightenment, even Brewer did not argue that 
     the Constitution's protections applied outside the United 
     States. To the contrary, his Fong Yue Ting dissent declared 
     that ``the Constitution has no extraterritorial effect, and 
     those who have not come lawfully within our territory cannot 
     claim any protection from its provisions.'' Years later the 
     Court would exploit that loophole by creating a legal 
     fiction--that even aliens who have physically entered the 
     United States remain legally outside it, thereby 
     intentionally denying even longtime residents of this country 
     meaningful constitutional protection.
       As the century turned, the question of whether aliens 
     outside the United States have constitutional rights was 
     absorbed by the larger issue of ``whether the Constitution 
     follows the flag''--that is, whether the Constitution extends 
     to the furthest reaches of the emerging American empire. The 
     characteristic executive-branch response to this question, 
     ascribed by Fiss to Secretary of War Elihu Root, was, ``As 
     near as I can make out the Constitution follows the flag--but 
     doesn't quite catch up with it.''
       Only one decision ran against the anti-Asian tide: United 
     States v. Wong Kim Ark (1898). That case asked whether 
     children born in the United States of Chinese parents became 
     American citizens by virtue of the 14th Amendments birthright 
     citizenship clause. Given the earlier Chinese decisions, the 
     case seemed an uphill struggle. The Chinese Exclusion Act had 
     denied Wong Kim Ark's parents the opportunity for citizenship 
     through naturalization, and Chae Chan Ping and Fong Yue Ting 
     had settled that those parents could have been deported, 
     expelled or forbidden reentry upon leaving the country. 
     Justice Gray began inauspiciously, asserting that ``the 
     inherent right of every independent nation to determine for 
     itself, and according to its own constitution and laws, what 
     classes of persons shall be entitled to its citizenship. 
     ``Yet surprisingly, he went on to hold that the 14th 
     Amendment denied the federal government the power to withhold 
     citizenship from children born in the United States of alien 
     parents.
       The decision rested on the birthright citizenship clause, 
     which confers citizenship on U.S.-born persons of parents 
     ``subject to [U.S.] jurisdiction.'' The Court's holding that 
     Chinese parents of American-born children were so subject 
     reaffirmed the themes of sovereignty and absolute territorial 
     jurisdiction that ran through the earlier Chinese cases. 
     Ironically, the decision also seems to have been driven by 
     the potential impact of a contrary holding on ethnic groups 
     other than Asians. As Justice Gray noted, ``To hold that the 
     14th Amendment . . . excludes from citizenship the children 
     born in the United States of citizens or subjects of other 
     countries, would be to deny citizenship of thousands of 
     persons of English, Scotch, Irish, German, or other European 
     parentage, who always have been considered a citizens of the 
     United States.
       All this might seem like ancient history, made irrelevant 
     by the New Deal, the Warren court, the Bill of Rights 
     revolution and the global era of international human rights. 
     Nor does it seem plausible that blatantly racist laws could 
     survive after Brown v. Board of Education, the end of 
     official racial discrimination and the advent of strict 
     judicial scrutiny. But our government's position in recent 
     cases reveals that immigration is caught in a time warp.
       Chinese refugees, arriving on Long Island's south shore 
     aboard the Golden Venture, fall squarely within the Chinese 
     Exclusion holding. Poor black Haitian boat people, fleeing 
     persecution after a coup d'etat overthrew their first 
     democratically elected government, encounter as obstacles to 
     their entry into the United States claims of inherent 
     sovereignty and plenary congressional power, allegedly 
     delegated to the President and the Coast Guard. Haitians who 
     raise due process and equal protection claims are told that 
     the Constitution does not protect them on the high seas. 
     Their efforts to invoke multilateral and bilateral refugee 
     treaties similarly founder on American claims of 
     territoriality. When Haitians challenge their summary 
     repatriation to Haiti, our government in its defense cites 
     grounds of foreign policy, national security and 
     nonreviewability. Refused admission as public 
     charges and health risks, HIV-positive Haitian asylum seekers 
     are detained for nearly two years in a U.S. government 
     internment camp at Guantanamo Bay, Cuba, in an eerie parallel 
     of the government's internment of Japanese-Americans during 
     World War II. At this writing, thousands of Haitians are 
     again detained at Guantanamo. Ironically, the question arises 
     whether Haitian children born in the Guantanamo camp are 
     Haitian, Cuban or perhaps even American citizens.
       Other infamous decisions from the 19th century, such as 
     Dred Scott and Plessy v. Ferguson (which legalized separate 
     but equal), have been overruled, both at law and in the court 
     of public opinion. But the Asian immigration cases of that 
     era--no less shocking--still bear bitter fruit. Today, no 
     public official would embrace the racism, hatred and nativism 
     that drove those decisions. Yet the legal principles they 
     enunciated still rule our borders.
     

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