Book Review: Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law

I write this review while the nomination of Bill Lann Lee to be assistant attorney general for civil rights is on the front pages, the latest example of the long and intimate involvement of Chinese Americans with civil rights. This involvement has only recently attracted the serious attention of legal historians. To be sure, Carl Brent Swisher wrote about Chinese cases in his Stephen J. Field, Craftsman of the Law (Stanford, 1930), but that was what football referees call incidental contact. Sixteen years later Milton R. Konvitz spelled out a precise victimology of what “the equal protection of the laws” had meant in practice to Chinese and other Asians (The Alien and the Asiatic in American Law [Ithaca, 1946]). But only in the 1980s did legal scholars, with John R. Wunder in the van, begin to realize and explicate the key role that Chinese litigants played in the development of immigration and civil rights law.

The primacy of the Chinese cases was due to the fact that beginning with the Page Act in 1875, and particularly after the first Chinese Exclusion Act in 1882, Chinese were the only ethnic group targeted by immigration statute until 1917. The Chinese Exclusion Act was, in fact, the hinge on which all American immigration policy turned, something that Eurocentric historians took a long time to recognize.

Two recent books, unconsciously complementary, have advanced our knowledge wonderfully, not only by assimilating the scattered existing scholarship, but more importantly by dint of gritty archival research fortified by rigorous analysis. The first, by Charles J. McClain of Berkeley’s law faculty, (In Search of Equality: The Chinese Struggle against Discrimination in Nineteenth-Century America [Berkeley, 1994]), focuses on cases arising from California statutes and local ordinances prior to 1882 and federal cases after that. (See my essay review, “Ah Sin and His Lawyers,” Reviews in American History 23.4 [1995]: 472-77.)

Lucy E. Salyer, a University of New Hampshire historian, analyzes the development of American immigration law from the passage of the 1882 Exclusion Act through 1924 when the “permanent” adoption of the quota system moved its focus away from the Chinese. She divides her analysis into two main parts—”Judicial Justice, 1891-1905″ and “Executive Justice, 1905-1924.” She argues cogently that Chinese litigants were crucial in the often anomalous way in which immigration law developed:

The doctrines providing the foundation for immigration law arose out of struggles … among Chinese immigrants, government officials, and federal judges…. Chinese immigrants … laid claim to principles and practices—habeas corpus, due process, evidentiary rules, judicial review—that were at the heart of Anglo-American jurisprudence…. [Rather than] recognizing Chinese as functional if not formal, members of … society with legitimate claims to its cherished legal heritage…. government officials instead persuaded Congress and the Supreme Court that the nation’s gates could be effectively guarded only if they were allowed full authority and discretion over immigration policy without interference from the federal courts. (247-48)

This persuasion was not immediately successful. Salyer demonstrates that both before and during the era of “Judicial Justice” the federal courts in California, where almost all of the approximately 10,000 [!] Chinese cases arose, generally protected the rights of Chinese litigants. The greater part of these cases involved petitions for habeas corpus to overturn negative rulings on admission to the United States by officials charged with administering the Chinese Exclusion Act. In an overwhelming majority of these cases—more than 80 percent prior to the late 1890s and a clear majority between then and 1905—the courts, usually acting on the recommendations of commissioners, reversed the denial of admission. Sayler attributes the differences between the results of the administrative and the judicial hearings to differing evidentiary standards and, even more, to the fact that in the administrative hearings Chinese were denied counsel, while in judicial hearings, of course, they were allowed counsel. (A minor weakness is the failure to provide any substantive account of the lawyers who took these lower court Chinese cases. This, as well as the appellate representation of Asian-born litigants by some very distinguished counsel, is a topic some scholar should pursue.)

Ironically, as Sayler demonstrates, it was the Supreme Court that sanctioned the triumph of the administrative as opposed to the judicial determination of most immigration cases. In a chain of cases beginning with that of a Japanese woman Nishimura Eiku v. U.S. (1892) and including Fong Yue Ting v. U.S., Lem Moon Sing v. U.S., U.S. v. Sing Tuck, which culminated in U.S. v. Ju Toy (1905), the court all but removed the basic protections of the constitution from aliens seeking admission. In Ju Toy the court ruled that “due process of law does not necessarily require a judicial trial” and that “a person whose right to enter the United States is questioned under the immigration laws is to be regarded as if he had stopped at the limit of its jurisdiction, although physically he may be within its boundaries” (198 US 253).

The author of this doctrine was O. W. Holmes, Jr., who, in what even the admiring Frankfurter called a “cavalier opinion,” relied on an analogy from a case involving seizure of funds from a tax collector whose accounts were in arrears. (Twenty-two years later Holmes would analogize, in a decision upholding mandatory sterilization, that “the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes” [Buck v. Bell at 274 U.S. 208].)

Salyer shows, briefly but trenchantly, how this virtual removal of immigration cases from judicial review carried over from cases involving only what Justices Brewer and Peckham, dissenting, called “an obnoxious race” (198 U.S. 279) to cover first radicals, and then all would-be immigrants after the quota acts of the 1920s.

The North Carolina Press has produced an attractive, well-edited and illustrated volume. A table of cases is lacking, although one can be constructed from the excellent index. Even an extended review cannot do justice to this brilliant, well-researched and well-written volume, which won the book prize of the Immigration History Society. One eagerly awaits Professor Salyer’s next work.

BY: Roger Daniels



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