Update: On October 6 the U.S. Senate passed a resolution apologizing for the 1882 Chinese Exclusion Act. No action yet on the companion bill introduced in the House of Representatives:
* LA Times: Senate apologizes for discrimination against Chinese immigrants
* Mercury News: U.S. Senate apologizes for decades of anti-Chinese discrimination
* Xinhua: U.S. Senate apologizes for discriminating laws targeting Chinese
The Chinese Exclusion Act
The 1882 Act’s preamble claimed that “the coming of Chinese laborers to this country endangers the good order of certain localities.” The Act placed a ten-year moratorium on entry to the U.S. of Chinese laborers, required registration of all Chinese laborers already in the U.S., and denied them naturalization as U.S. citizens.
This was the first U.S. law to ban immigration based on race or nationality. It focused on laborers but effectively reached all Chinese people except travelers, merchants, teachers, students, and those born in the U.S.
The law was extended several times and was effective until 1943.
In the nineteenth century the U.S. witnessed two waves of Chinese immigration. The first came after the discovery of gold in California in 1848. The Chinese, like other immigrants, came hoping to strike it rich in the mines. The second wave began in the 1860s during the construction of the Central Pacific Railroad.
Migration was also influenced by poverty and instability at home. The Opium War with Britain (1839-42) spawned resentment towards foreigners, but the ensuing economic troubles also drove some to emigrate. Then the Taiping Rebellion (1850-64), led by the self-proclaimed Son of God, Hong Xiuquan, took twenty to thirty million lives and increased the flow of refugees.
During the early stages of the gold rush, when gold was plentiful, the Chinese were tolerated. But as gold became harder to find and competition increased, animosity toward the Chinese grew. Forced out of mining and other occupations, many Chinese settled in enclaves in cities like San Francisco and took up low-end work in restaurants and laundries. Nativists stoked anti-Chinese sentiments. This included labor leader Denis Kearney and his Workingman’s Party as well as by California Governor John Bigler, both of whom blamed Chinese “coolies” for depressed wage levels. Chinese immigrants even faced racial ostracism and violent assaults, including the 1887 Snake River Massacre in Oregon, at which 31 Chinese miners were killed.
Some Americans opposed the nativists. For example, Senator George Frisbie Hoar (Republican–Massachusetts), an anti-slavery activist, considered the Chinese Exclusion Act as the legalization of racial discrimination.
Chae Chan Ping v. United States
The Chinese Exclusion Act was challenged as unconstitutional in Chae Chan Ping v. United States (1889) (the Chinese Exclusion Case).
The Fourteenth Amendment, passed in the wake of the Civil War, guarantees “equal protection of the laws” to all persons regardless of race or nationality. But the Supreme Court rebuffed the challenge, writing that “If … the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security … its determination is conclusive upon the judiciary.” And in what has come to be known as the plenary power doctrine, the Court announced the rule that the power of Congress over the admission of aliens to this country is absolute.
This has put U.S. immigration law out of step with the modern era of American constitutional law. That began with Brown v. Board of Education (1954),, in which the Supreme Court introduced the presumption against the constitutionality of racial discrimination. Because of the revolution it started, Brown has been called the most important legal event in twentieth-century America. Brown has led the Supreme Court to invalidate racial discrimination in virtually every area of American life–employment, public benefits, voting, jury selection, criminal justice, marriage, and the family. But not immigration law.
It’s conceivable that that foreign policy concerns might justify laws with national origin classifications. For example, courts have found it reasonable for the United States to restrict the immigration of enemy aliens. But Chae Chan Ping should be overruled. The courts should apply to immigration law the constitutional presumption that racial and national origin classifications are unlawful, unless the law has a reasonable basis, at least.
Impact of the Chinese Exclusion Act
Due to the Chinese Exclusion Act, Chinese population in America declined from over 140,000 in the mid-19th century to 75,000 in 1940. Those who remained were permanently classified as foreigners because they were barred from naturalizing as U.S. citizens.
Most Chinese immigrants confronted a stark reality in terms of their family life. While husbands worked in the United States, wives and children remained in China. Chinatown was known as a “bachelor society.” Men hesitated to travel to China because it was difficult to get the certificate needed for reentry to the U.S.
Human smuggling proliferated. For example, some Chinese merchants lawfully in the U.S., who were allowed to bring dependents to the U.S., falsely testified that unrelated children were their sons and daughters. Other “paper” sons and daughters were created when the 1906 earthquake destroyed San Francisco’s City Hall and Hall of Records, leading to false claims of U.S. citizenship by birth. To pass official interrogations, which often took place at Angel Island Immigration Station in San Francisco and could last for weeks or months, these “paper” sons and daughters would memorize coaching books with specific information about family histories and ancestral villages (“How many water buffalo were there in your village?”).
The Act’s worst legacy is that it reinforced stereotypes that Chinese immigrants are dangerous, inferior, “alien,” un-American, and unwilling or unable to assimilate.
Repeal of the Act
The Chinese Exclusion Act was repealed in 1943 after China became a World War II ally of the United States in the war against Japan. That year the Magnuson Act permitted Chinese nationals already residing in the country to become naturalized citizens. It also allowed a quota of just 105 Chinese immigrants per year. Not until the Immigration Act of 1965 was more significant Chinese immigration allowed.
The Resolution of Regret
Congress has previously apologized for slavery of African-Americans, for holding Japanese-Americans in camps during World War II, and for the 1893 overthrow of the Kingdom of Hawaii.
Now, in the Senate, the resolution of regret for the Chinese Exclusion Act was authored by Scott Brown (Republican–Massachusetts) and passed by unanimous consent. In the House, which has yet to vote on the resolution, it is authored by Judy Chu (Democrat–California).
Chu said the purpose of the recently introduced resolution is to call on Congress “to illuminate a past mistake, and reaffirm our commitment to freedom and equality.” It does not provide for monetary reparations.
As an immigration lawyer, I would hope the resolution acts as an impetus for the Supreme Court to reconsider the plenary power doctrine. That doctrine, which originated in the racially-tainted Chae Chan Ping decision, is out of step with modern constitutional doctrine, which adopts a more inclusive view of national membership and a more robust interpretation of individual rights.
Gary Chodorow is the Chief Representative, Beijing Office for the Law Offices of Frederick W. Hong. Gary graduated Summa Cum Laude with a Bachelor of Arts degree from Duke University in 1989 and earned his Juris Doctor degree from the University of California at Berkeley (Boalt Hall) in 1993. He was a partner in the law firm of Gessler Hughes Socol Piers Resnick & Dym, Chicago, Illinois, for ten years practicing immigration law and employment law. He is an adjunct professor at Chicago-Kent Law School. In China, he has taught law courses at Beijing University, Beijing Foreign Studies University, and Liaoning University. He is a member of the American Immigration Lawyers Association. He speaks conversational Mandarin and Spanish. Visit his academic website and immigration law blog at www.lawandborder.com.