Tuesday, May 26, 2020


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II. Lesson One: The Court Should Not Participate in What It Knows Is Evil, Even If the Court Cannot Find a Constitutional Justification for Challenging It

The first history lesson that Yick Wo and the other Chinese cases should teach us is that Justice Jackson was right in his Korematsu dissent: it is better for the Supreme Court not to decide a case than to decide it in violation of the true meaning and spirit of the Constitution. Faced with the choice of invalidating or upholding the constitutionality of President Roosevelt's 1942 order (backed up by criminal legislation) authorizing the military to intern Japanese citizens, Justice Jackson chose neither unpalatable alternative. He confessed that the Constitution could not be read idealistically to invalidate every unconstitutional military command in a time of war: the Constitution entrusted wartime decisions to the Executive, and the need for military success was often immediate. On the other hand, the Supreme Court would deal a far worse blow to liberty than the order itself by validating an unconstitutional government decision premised on racism, panic, or ill-informed decision making. The short-term harm from the order itself is magnified if racist government action is rationalized by the Court as consonant with the Constitution or the Constitution is rationalized to conform to the order. Justice Jackson argued,

[O]nce a judicial opinion rationalizes such an order . . . the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.

Of course, the principle that the Court should not participate in the justification and implementation of evil depends on two basic premises: first, the Court must know of the unjust and unconstitutional conditions facing appellants to the Court, and second, the Court must understand that these conditions are unjust and evil, given all of the circumstances. Certainly, as in this case, the law can perpetuate injustice so intrinsically evil that no amount of immediate social good can conceivably outweigh it. Yet, we have to acknowledge the rare possibility that an otherwise seemingly unconstitutional order may be so critical to protecting the Constitution or security of the nation that a failure to enforce would be tantamount to a violation of the Court's oath to protect and defend the Constitution.

In this case, however, the first criterion--knowledge of the pervasive discrimination--surely had to be met. The United States Supreme Court during the Yick Wo era had to be familiar with the intentional harm being visited upon the Chinese in California and elsewhere. Most obviously, Justice Stephen Field, who sat on the Court from 1863 to 1897, was the presiding circuit judge in a number of the important Chinese decisions that came before the lower federal courts in the latter part of the nineteenth century. Justice Field had previously participated as a California Supreme Court judge in at least some of the early Chinese victories, such as the invalidation of the Foreign Miners' License Tax. His opinions as a circuit judge demonstrate his familiarity with the pervasiveness of the racial discrimination occurring in California. A telling example is Justice Field's opinion as a circuit judge in the previously mentioned In re Quong Woo in 1882, which had to do with a law passed to rid suburban residential neighborhoods of Chinese laundries. In In re Quong Woo, Justice Field demonstrated that he understood that the Chinese were targeted: any kinds of onerous conditions could be imposed on some of our worthy resident aliens from Europe if the ordinance were constitutional, even if their businesses were not in themselves against good morals or contrary to public order or decency, or dangerous to the public health and safety, like laundries. In an apparent jab at the ruling elite in San Francisco, Justice Field noted that this kind of ordinance could also be applied to lawyers, bankers, merchants, traders, mechanics, journalists, indeed, [to] all brain-workers and hand-workers whose business could depend upon the caprice of others. In fact, if the laundry ordinances were lawful, the supervisors could prohibit almost any person from conducting any business on his own property. Justice Field noted that such ordinances must be reasonable--that is, not oppressive nor unequal nor unjust in their operation--or they will not be Even more pointedly, he remarked that as a Chinese alien protected by treaties, Quong Woo had the right to pursue any ordinary trade without let or hindrance . . . except such as may arise from the enforcement of equal and impartial

In another case heard by Field, Chy Lung v. Freeman, also known as the Case of the Twenty-Two Chinese Women, Justice Field in oral argument expressed his belief that the Chinese women who were refused the right to immigrate for alleged prostitution were selectively prosecuted because they were Chinese, something the Fourteenth Amendment forbade. Indeed, in the end, the Supreme Court itself invalidated the requirement that ship owners post a bond before their Chinese passengers could deboard in the first case involving Chinese litigants to be decided by the Supreme Court. Again sitting as circuit judge, Justice Field decided in In re Look Tin Sing that an American-born citizen of Chinese parentage did not lose his citizenship simply because he traveled to China, despite the U.S. district attorney's claim that an ethnic Chinese man born in the United States had to have a certificate to deboard just like eligible resident aliens who traveled to China. Reminding the district attorney that the noncitizen parentage of former slaves and of American-born Chinese residents was irrelevant to their own citizenship, Justice Field went further in noting that the United States also happily naturalizes those who renounce their former country and declare themselves willing to be U.S. citizens (so long, he might have wryly noted, as they are not

California Supreme Court cases also demonstrated the animosity of the state and local government to the Chinese, and these cases were also available to the U.S. Supreme Court. People v. Hall was perhaps the worst of such cases; it upheld a statute that provided, [n]o Black or Mulatto person, or Indian, shall be permitted to give evidence in favor of, or against, any White In that case, Chief Justice Murray began with the odd premise that Columbus had confused American natives with Mongolians or Asiatics and concluded by saying that the prohibition against Indians testifying was really meant to apply to ethnic Asians. He then expressed the worry that if Chinese people could be witnesses, they would next be voters, jurors, legislators, and judges--an actual and present danger given their refusal to follow the law and racial inferiority. Sometimes state legislation was so extreme in its hostility that even the California Supreme Court, with all of its race prejudice, could not sustain it. One example was a statute that prohibited Chinese from coming into California at all, invalidated in Ex parte Ah Cue. Similarly, in Lin Sing v. Washburn, the California Supreme Court narrowly invalidated a head tax imposed only on Chinese immigrants designed (as the bill title states) to get rid of Chinese coolie labor.

Governmental hostility was not confined to routine legislation. Even provisions of California's new constitution had to be struck down for their clear attempts to target the Chinese, political decisions likely to be available to the Supreme Court. In In re Tiburcio Parrott, the federal circuit court invalidated a provision of the new constitution that prohibited California corporations from employing Chinese resident aliens. In In re Ah Up, Judge Lorenzo Sawyer ruled against a California provision that declared Chinese resident aliens ineligible for naturalization.

Finally, unless members of the Court were scrupulously avoiding the press altogether, they could not avoid popular references to the Yellow Peril, the hysterical view that Chinese and other Asian immigrants would overwhelm Caucasian civilization. That was a Los Angeles Times headline. Popular American author Bret Harte also coined the term heathen Chinese to describe the Chinese. Some warned that the Chinese were an immoral lot, involved in gambling, prostitution and opium smuggling, that they kept unsanitary hovels, and ate unusual food. One children's chant, echoing a popular misconception, claimed that the Chinese ate dead rats like gingersnaps.

A more ambivalent pamphlet in circulation expressed the feelings of admiration and resentment felt by many workers, noting that the Chinese were remarkable[ly] hard-working and careful farmers who could live off small plots of land rented to them at exorbitant prices by White landowners. The pamphlet ends with the note that [m]an is the only weed tolerated in China, and he teems everywhere, and that it would be harder to get population control in China than to Christianize the Chinese. Another notes that no country can equal China as an industrial supplanter and trade-absorber since Chinese laborers will work twenty hours per day to a White man's twelve hours, on incomparably poorer food, housing and clothing and without fresh air or sunshine. A third warns that the Chinaman will learn a trade to supplant his teachers in business through his industry, suavity and apparent child-like innocence, seconded by unequaled patience . . . keenest business ability and disregard of truth.

Members of the Court might also have been aware of news reports of legislative history for oppressive bills that the California legislature passed. For example, during the 1858 passage of a bill to prevent Chinese immigrants from coming through California ports, a legislative committee reported that Chinese habits, manners, and appearance are disgusting in the extreme, and noted that California is peculiarly the country of the [W]hite man and that we should exclude the inferior Or they might have read the Evening Post's post-Exclusion Act warning that unless employers replaced them with good White workers, Chinese laborers would still be making clothes, bread, cigars, and shoes for Californians.

In national politics, members of the Supreme Court would surely have noted the post-Reconstruction appeal by West Coast Democrats that the Republican doctrine of universal equality for all races' would lead to an Asiatic influx and control of the state by an alliance of the Mongolian and Indian and They might also have been aware of Congressional debates over post-Reconstruction constitutional amendments, including California Republican senator Cornelius Cole's argument that if the Fifteenth Amendment were written to include non-Blacks (e.g., Asians), it would kill our party as dead as a

Moreover, persistent Congressional efforts to further restrict Chinese immigration must have surely impressed the Supreme Court. After the Burlingame Treaty Amendments in 1880 permitted United States restrictions on laborers coming into the country, Congress passed a series of Chinese Exclusion acts that prohibited the Chinese from becoming naturalized citizens, suspended Chinese laborer immigration for ten years, and required laborers to have registration documents to come and go from the United States. The 1884 Exclusion Act confirmed that Chinese laborers of any nationality were excluded, expanded the exclusions to include miners and skilled laborers, and narrowed the favorable treatment provided merchants. The law provided that the re-entry certificate would be the only acceptable evidence permitting laborers visiting China to re-enter the United States. Unsatisfied, Congress passed the Scott Act in 1888, prohibiting any laborer who left after the effective date of the Act from ever re-entering the U.S.; the Geary Act in 1892, which extended the ban on laborers for another ten years and instituted a pass system for Chinese laborers; and the 1924 Act that prohibited all immigration by aliens ineligible for citizenship (that is, all Asians.)

If all of this evidence was insufficient to demonstrate pervasive discrimination against the Chinese, the Court might have followed Congressional debates over the extension of the Exclusion Acts. A chilling illustration is the 1890 debate in which members were regaled with tales of Asian hordes waiting to inundate the country and of prophecies of the imminent collapse of Western civilization if new and more radical measures were not The Court would surely also have been aware of New York Times reports on the East Coast Chinese community's mobilization against the Geary Act, which required Chinese to have their certificate of residence on them at all times, a pass system reminiscent of modern-day South Africa.

Despite this clear evidence of malignant intention by authorities and legislatures from local to national levels, the U.S. Supreme Court did not take any significant lead in responding to anti-Chinese sentiment. Although, as suggested, it did overrule some state legislation as in Yick Wo, the Court's interpretation of federal immigration law piled on to the discrimination experienced by the Chinese at the state level. For example, in United States v. Wong You, a Chinese laborer who had entered the country in violation of the Chinese Exclusion Acts claimed that he had to be deported under earlier, more fulsome procedures for Chinese deportation rather than later, swifter, general deportation laws. Justice Holmes demurred, noting that the whole purpose of the earlier law was to ensure that the Chinese would indeed be deported, and concluding that it would be illogical to give the Chinese essentially more rights to deportation due process than other deportees on the strength of an earlier law that deported only them.

The Chinese cases offer an important footnote: the federal courts' track record in protecting civil rights of minorities is not necessarily dependent upon how enlightened judges' personal views of the minorities in question may be. The fact that justices are often affected by the social and political times may be an explanation--but it is not an excuse--for their failure to ensure the civil rights of all. The Chinese cases are a telling example of how personal prejudice of a federal judge does not prevent him or her from enforcing the basic commands of the Constitution against hostile legislation. Justice Field, a key player at both the trial and the appellate level in the Chinese cases, expressed the clear opinion that Chinese immigration was unwise, noting in In re Ah Fong that the dissimilarity in physical characteristics, in language, in manners, religion and habits, will always prevent any possible assimilation of them with our That was not the only time he expressed misgivings about the Chinese as immigrants. Indeed, some have credited him with the proposal to enact the first Chinese Exclusion Act.

Yet, while his record was not consistently in favor of the Chinese-- particularly after Congress gave him more authorization to justify rulings against them--in many cases Justice Field invalidated laws on what we would now call equality grounds. In In re Ah Fong, despite his comments, Justice Field struck down a state law prohibiting Chinese immigrants from landing. Perhaps most dramatically, in the Case of the Twenty-Two Chinese Women, Justice Field objected to differential treatment of Chinese and White American prostitutes, arguing that while the State can exclude all dangerous persons, [t]he idea is that whatever protection the law gives shall be uniform and shall extend to all In other cases early in his career, he sided with the Chinese as well.

Similarly, Judge Hoffman, who decided many of these cases for the Chinese, was strongly negative about Chinese immigration. He once noted that the flood of Chinese labor not only harmed native labor, but also menaced our interest, our safety, and even our While he was deeply hurt by popular criticism of his opinions and wearied by the large number of these cases he had to decide, his sense of judicial duty drove him to decide cases as he believed the law required. Indeed, prior to passage of the Chinese Restriction Acts, Judges Sawyer and Hoffman were accused of playing with and creating loopholes in federal immigration laws that benefitted the Chinese. Judge Hoffman continued to hold for the Chinese even after Field found sanction in the Exclusion Acts to start holding against them. (By contrast, Justice John Harlan, the dissenting civil rights hero of Plessy v. Ferguson, consistently treated the Chinese with animosity, noting in Plessy that [t]here is a race so different from our own that we do not permit those belonging to it to become )

As suggested earlier, the Court may also decide that a case manifests constitutional evil that is yet not as serious as the evil to be prevented by the statute, such as the protection of the nation. Certainly, there are any number of constitutional cases, including Korematsu, where the Court seems troubled by the prospect that basic civil rights are being violated and yet concludes that the evil to be prevented by the law strongly outweighs the particular harm to individuals. Korematsu's pronouncement that, in wartime, civil liberties of some must give way to the protection of all is echoed by the Court in many of the wartime First Amendment cases.

In retrospect, the thought that Chinese immigration might offer a similar parallel to the feared Japanese or German invasion of American shores in World War II seems absurd to modern ears. But, in fact, this sense of dread about the hordes of immigrants who were flooding the country and threatening civilization was not limited to federal judges. The newspapers and politicians of the day took up this cause and fed the public fear that the Chinese were the cause of all kinds of social evils that they had nothing to do with. In 1856, a California legislator compared the Chinese miners to the plague of locusts that visited Egypt. One can see this kind of panic in modern commentaries on illegal immigration, where Mexican migrants evading the border fence are equated with al-Quaeda terrorists and accused of everything from starting epidemics to creating stealth citizens, i.e., anchor babies. And the political pandering to the fear of Chinese coolie labor can be seen everywhere in this period, from Dennis Kearney's speeches on the sandlots of San Francisco to the pronouncements of the President and key Congressmen. We can also see resounding echoes of the serious economic structural problems that the United States faces today, including significant wealth disparities, great distrust of bankers and capitalists, the willingness of immigrants lured by employers to take low-wage labor jobs, and job displacement caused by the disappearance of key industries. Some historians have argued that the Chinese cases represent a major struggle between the federal government and the states over who would have the power over immigrants and the responsibility for the issues created by immigration, an argument not dissimilar to today's immigration debates. Then, as now, immigrants serve as an easy and visible group to blame for the failure of both federal and state government to acknowledge that our voracious need for immigrants, often to do our dirty work, has to be balanced with responsibility for its effects, both on the immigrants themselves and on the wider community.

However, Korematsu and the Chinese cases are perhaps the cases that prove the rule. Perhaps the most poignant evidence of what can occur if we disregard the history of the Chinese exclusion period is United States v. Dennis, the case justifying the punishment of small Communist cells for teaching the overthrow of the government. In that case, the Court cites Chae Chan Ping v. United States, the Chinese Exclusion case, for the proposition that:

The right of a government to maintain its existence--self-preservation--is the most pervasive aspect of sovereignty . . . . To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come . . . .

The nineteenth century Supreme Court's validation of hysterical fears that Chinese immigrants, like small Communist cells, were ready to engulf the country should give the modern Court pause before it validates similar hysterical fears taken up by Congress, the Executive, or a state. In case after case where the Court has thrown its weight behind Congressional or Executive decisions to repress civil liberties, history has determined that there is often more smoke than fire behind governmental excuses for suppressing liberties--from the anti-syndicalism acts of the early 1920s to the detention of Guantanamo Bay detainees. Thus, Justice Jackson has been proven right: the Court should be wary when it finds itself pulled into a battle in which civil liberties or basic constitutional principles are going to be victims of social and economic fear and resentment. If after searching precedents and souls, the Supreme Court justices believe that they cannot legitimately or effectively stand up for the civil liberties of immigrants and other minorities, the Court will do less damage by denying certiorari rather than by giving sanction to the government's effort which is bound to do evil. As Justice Jackson rightly warned, any precedent against civil liberties lies around like a loaded gun to be used during the next anxious historical moment to thwart the human rights of another group.