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US Courts Deflate Anti-Immigration Legislation; The Supreme Court Insistent on Rights for Immigrants
from American Immigration Law Foundation

A recent law review article traces the historical and social context of the nativism movement. The author argues that a multi-faceted judicial approach has proven an effective means of countering anti-immigrant legislation.1

The first nationally organized movement against immigrants originated in the 1800's and peaked in the early part of the 20th century. Following the devastating depression of 1893-1897, business failures abounded and unemployment was rampant. Allegations that immigrants were involved in fomenting worker unrest impelled business leaders to become increasingly hostile towards the newcomers. Furthermore, the era's organized labor unions grew leery of immigrant job competition.

Truax v Raich (1915)

In 1915, the Supreme Court considered a 1914 state statute, which required that a company with a payroll exceeding five must employ at least eighty percent eligible voters or native-born citizens. Violation of the law carried a possible misdemeanor conviction, fine, and imprisonment. Truax employed Raich, an Austrian native and resident of Arizona, but not an eligible voter. Seven of Truax's nine employees were neither native-born citizens nor otherwise qualified to vote. Consequently, Truax was arrested for violating the statute.

Upon reviewing the act, the Supreme Court found its purpose clear: to force someone from a job simply because he was an alien. According to the Court, legislative discretion, based on race or nationality, did not make it possible for the state to deny its lawful inhabitant the ordinary means of earning a livelihood. In the end, the Court declared the act a violation of the Fourteenth Amendment's Equal Protection Clause, emphasizing that the principles of equal protection were universal in their application, without regard to race, color, or nationality.

According to the author, anti-immigrant sentiment culminated in the movement known as "One Hundred Percent Americanism." They believed that "the maintenance of the existing social pattern was dependent upon the individual's sense of complete identification with the nation."

Many attempts to "Americanize" as many foreigners as possible became a national priority. By 1919, several States had enacted laws mandating that English be the only language used in both private and public schools. Though such restrictions brought notoriety to the "Hundred Percent" movement, in 1920 it suffered a great decline in momentum.

Despite this setback, anti-foreign sentiment continued through the early 1920s. This led to a second wave of legislation, fueled by the confluence of several events. The establishment of revolutionary governments in Russia (1917), Germany (1918), and Hungary (1919), the labor strikes of 1919, and the ensuing Red Scare brought to pass the exclusion of foreigners from several occupations, as well as their deportation. Congress passed a series of Immigration Acts (1921, 1923, 1924), which instituted a new quota system, based on national origin. As a direct result, deportations and illegal immigration increased drastically.

Meyer v Nebraska (1923)

A landmark case, shed light on the courts' efforts to ameliorate the harsh effects of nativist legislation. The case's impact lies in a vision of the substantive due process clause, which protects individuals from state interference in their personal lives. Hence, the case represents the first time the Supreme Court invoked the doctrine to invalidate legislation intended to create "One Hundred Percent Americans."

The Court viewed a declaration by the Nebraskan legislature that prohibited the teaching of foreign languages to elementary school students. According to the article, the court observed that the protection of the Constitution extends to all, including those who speak a foreign language. Though the Court acknowledged the legislature's desire to foster a homogenous population following World War I, it held that the due process clause of the fourteenth amendment precluded Nebraska from prohibiting the teaching of foreign languages to elementary school students. Meyer v Nebraska was the first occasion in which substantive due process was invoked to protect rights of a more personal nature than those traditionally understood to derive from the clause.



The "Alien Land Laws" prohibited those who were ineligible to naturalize from holding title to agricultural land, or from having business interests dealing with that land.

The article discusses additional means by which the courts curtailed anti-immigrant legislation: they demanded that its language be read strictly. Strict reading of statutes also helped immigrants defend against other types of legislation. The "Alien Land Laws" prohibited those who were ineligible to naturalize from holding title to agricultural land, or from having business interests dealing with that land. These laws were directed at those of Japanese descent.

Jordan v Tashiro (1928)

The Supreme Court adhered to the time-honored principle of liberal construction of treaties. Japanese natives made an appeal to allow them to operate a hospital they owned; despite California's denial of the application based on the reasoning that by doing so, the corporation would violate a section of the Alien Land Law. This section prohibited those ineligible for naturalization from forming a corporation whose purposes would be to possess, use, or occupy real property.

According to the Court, the treaty in force between the United States and Japan provided for natives of Japan to do business in the United States. Furthermore, the Court iterated that diplomatic relations require treaties to be liberally construed. A strict interpretation, authorizing Japanese subjects to operate a hospital while denying them control over the property on which it lay did not comport with a reasonable liberal construction.



The Supreme Court ruled in Jordan v Tashiro (1928) that Japanese natives should be allowed to own and operate their hospital, despite the "Alien Land Laws."

Conclusion

The article asserts that early 20th century anti-immigrant legislation was largely the result of historical and social events. In order to contest these laws, the courts took an activist approach.

Prepared January 2001


Endnotes 1 Scharf, Irene, "Tired of Your Masses: A History of and Judicial Responses to Early 20th Century Anti-Immigrant Legislation," University of Hawaii Law Review, Summer, 1999, 21 Hawaii L. Rev. 131.

About The Author

The American Immigration Law Foundation was established in 1987 as a tax-exempt, not-for-profit educational and service organization. The Foundation's mission is to promote understanding among the general public of immigration law and policy, through education, policy analysis, and support to litigators. AILF is governed by a Board of Directors and a Board of Trustees.

Working closely with leading immigration experts throughout the country, AILF has established three core program areas: the Legal Action Center, the Public Education Program, and an Exchange Visitor Program. Through these programs, the Foundation sponsors numerous awards programs, publishes policy reports, engages in impact litigation, and provides policymakers and the public with complete and accurate information about the benefits of immigration.


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