The great success of originalism is that it offers an external constraint on judges that is more objective than any contemporary vision of justice.
“Li—is that a Chinese name?”
“No, it’s an American name.”
Many of us might remember learning Plessy v. Ferguson for the patently odious claim that races could by law be “separate but equal” in public accommodations. A few of us might remember Justice Harlan’s passionate dissent that the Constitution is colorblind and that state-enforced racial segregation is anathema to its principles. I would bet that even fewer of us would remember Harlan’s colloquy on the Chinese, which is often edited out of textbooks that quote his dissent.
There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.
Harlan was trying to make the point that it made no sense for the Constitution to allow laws that prohibited black citizens from sitting with fellow white citizens, but allowed the Chinese, who, at the time were generally incapable of naturalizing, to sit with white citizens. But Harlan’s otherwise moving dissent on the equality of races under the law, paired with his almost matter-of-fact claim that the Chinese were “so different from our own” that America “did not permit” them citizenship, illustrates a tension in conceptions of citizenship that continued past his time, and even after Brown declared that separate could never be equal.
Harlan was consistent. After his Plessy dissent, Harlan continued to express his views on the Chinese by joining the dissent in Wong Kim Ark. That case established that the Fourteenth Amendment’s citizenship clause meant jus soli—law of the soil—as opposed to jus sanguinis, law of the blood. It’s by being born on American soil that we are clothed in citizenship, not by the blood of our parents. While Harlan didn’t pen the dissent in Wong Kim Ark, a hint of his reasoning for joining the dissent is present in a nearly contemporaneous speech he gave to law students, noting the exclusion of the Chinese from American society was due to the belief that the Chinese “is a race utterly foreign to us and never will assimilate with us.”
Harlan voted differently in a third major case involving those of Chinese descent, Yick Wo v. Hopkins, a seminal Equal Protection case. Yick Wo involved a San Francisco ordinance that prohibited laundromat owners from operating inside wooden buildings without a permit from the city. While purportedly enacted for fire hazard concerns, the ordinance was alleged to have targeted the predominantly Chinese laundromat business. The discrimination was more obvious in how the ordinance was enforced. Permits were granted to only 0.5% of Chinese applicants but were granted to nearly 99% of non-Chinese applicants. The Court, including Harlan, held that the Equal Protection clause applied not just to how laws were written but also to how they were executed. Yick Wo is still cited today for that proposition.
East Asians in America
More well known than Harlan’s Plessy dissent, Wong Kim Ark, and Yick Wo are the internment cases that arrived in the wake of World War II. Those cases seem to give credence to that cynical phrase “in times of war, the laws fall silent.” In the most famous internment case, Korematsu, the Supreme Court shamefully upheld the internment of Japanese-American citizens on the government’s theory that it was a necessary wartime measure against the nation of Japan.
The history of East Asians in America is a relatively recent one, partially by historical accident, but also by legal design. While immigration was relatively open at the start of American history, a strain of nativism began to appear near the mid-19th to early 20th century. This manifested itself in the Quota Act of 1921, which purposefully restricted the immigration of Southern and Eastern Europeans to favor Northern and Western Europeans. That nativist impulse applied to East Asians through Theodore Roosevelt’s “Gentlemen’s Agreement” in 1907, where he promised to end certain types of mistreatment of the Japanese in America in return for a promise from Japan to bar Japanese immigration into America. The most extreme restriction was imposed by the Chinese Exclusion Act of 1882, which attempted to halt almost all Chinese immigration. It has the dubious distinction of being the only law that tried to stop immigration based openly on ethnicity. As a result, Chinese immigration was stymied until the 1960s. The common motivator in these laws was partially economic (immigrants were willing to work more for less, threatening the wages of native laborers), but also largely driven by the belief, expressed by Harlan, that those immigrants were too alien to adopt American values.
This history and the Supreme Court cases discussed above all raise the question of foreignness. At their heart, the question is whether East Asians can ever be truly “American” or whether they will always be “others,” or, at best, conditional Americans. Unfortunately, the belief that East Asians can never be Americans isn’t just embraced by the traditional exclusionists but increasingly internalized by certain groups of East Asians themselves. Perhaps disillusioned by historical and personal experience, these individuals may be tempted to even reject the desirability of being American, ironically realizing, but through a different path, Harlan’s prediction that East Asians will never assimilate with Americans.
But the brief history traced above, especially in the internment cases, shows how wrong this posture is. Well-intentioned activists emphasizing difference, and incompatibility with Americanness, actually set up East Asians as an unassimilated discrete group that can be abused. Rather, as Wong Kim Ark and Yick Wo teach us, the real safety is in demanding that general laws are applied equally, without regard to racial identity. The protection of general and impartial rules is that much more important to East Asians, who, as a sliver of a minority in many areas of the United States, cannot protect their interests by voting in numbers except perhaps in the rare circumstance they find themselves as kingmakers.
A modern-day test of this proposition occurs in the high-profile case Students for Fair Admissions v. Harvard. It’s been an open secret that affirmative action policies at elite universities, holding all else equal, disadvantage Asian-American students in admissions. One response by some Asian-American groups has been to reject the neutral solution of eliminating considerations of race in admissions, and instead advocate for the inclusion of Asian Americans as a favored racial category. Setting aside principled objections to such a scheme, it also happens to be imprudent. The Constitution, with its guarantees of race neutrality, protects individuals from being bullied by political fortunes based on their race. To reject its protection in the hopes that one can pick up benefits in the ensuing political scramble is not only wrong, but foolhardy when one has been historically weak in political contests.
Assimilation doesn’t mean giving up unique customs or cherished cultural heritage. Assimilation into being American means to have allegiance to a certain creed, that is, a set of distinctly American values. While we can debate about which exact principles are and aren’t American, we all know deep down that there are certain principles that are core to our existence as a nation. A wise man once told me that we’re the only people who swear allegiance to a document, the Constitution. Rather than give up on becoming American, Americans of East Asian descent should work to broaden the idea of being an American to its essential values, and reject attempts to base it on superficial characteristics, especially racial ones.
A Beautiful Vision
Despite his faults, Harlan was a great man. His ringing dissent in Plessy still should—and does—inspire a hope for a racially equal America. That his vision didn’t extend quite as far as it should have doesn’t mean that we shouldn’t celebrate how far it stretched (perhaps if Harlan looked a little carefully at the culture he found so foreign that it could not be American, he would have come across this useful lesson: “Men of talents and virtue can love others and yet acknowledge the evil that is in them.”) At around the time that Harlan was announcing a certain view of the Chinese, another conception of Americanness was being developed by Abraham Lincoln and Frederick Douglas.
During a celebration of the Fourth of July, in what came to be known as the Electric Cord speech, Lincoln explained that while less than half the Americans in his day were direct descendants of the Founding generation, when Americans
look through that old Declaration of Independence they find that those old men say that “We hold these truths to be self-evident, that all men are created equal,” and then they feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration and so they are.
Frederick Douglass, in a speech well worth reading in its entirety, went even further. Explicitly opposing the popular anti-Chinese sentiment at the time, Douglass posed and answered a series of rhetorical questions:
Do you ask, if I favor [Chinese] immigration, I answer I would. Would you have them naturalized, and have them invested with all the rights of American citizenship? I would. Would you allow them to vote? I would. Would you allow them to hold office? I would.
Douglass didn’t think to narrowly define his allegiance to his racial identity, explaining, “I want a home here not only for the negro, the mulatto, and the Latin races; but I want the Asiatic to find a home here in the United States, and feel at home here, both for his sake and for ours.”
Explaining his notion of America as fundamentally a composite nation, Douglass announces a vision and program for Americans: “We shall mold them all, each after his kind, into Americans; Indian and Celt; negro and Saxon; Latin and Teuton; Mongolian and Caucasian; Jew and Gentile; all shall here bow to the same law, speak the same language, support the same Government, enjoy the same liberty, vibrate with the same national enthusiasm, and seek the same national ends.”
Douglass took Harlan’s kernel and drew out its full implications. In the same generation when Harlan voiced his belief that the Chinese could never assimilate, Douglas confidently asserted the capability of America to impart its values and the capability of any race to accept those values. That vision is a beautiful one and is the promise, if not immediately fulfilled, of our founding. It’s a vision worth fighting for.