White by Law - Haney Lopez 1

36 White Lines
prevent children born here to un immigrant

from acquiring citizenship automatically.77 Cali
fornia voters recently adopted by a two-to-one margin a
proposition to deny basic social services to undocumented
immigrants and their Though I do not intend
here to participate in the debates engendered by resurgent
nativism in this country, perhaps this book is best read Racial Restrictions in the
with this context firmly in mind. Law of Citizenship
T he racial composition of
the U.S. citizenry reflects
in part the accident of world migration patterns. More
than this, however, it reflects the conscious design of U.S.
immigration and naturalization laws.
Federal law restricted immigration to this country on
the basis of race for nearly one hundred years, roughly
from the Chinese exclusion laws of the 1880s until the end
of the national origin quotas in 1965.' The history of this
discrimination can briefly be traced. Nativist sentiment
against Irish and German Catholics on the East Coast and
against Chinese and Mexicans on the West Coast, which
had been doused by the Civil War, reignited during the
economic slump of the 1870s. Though most of the nativist
efforts failed to gain congressional sanction, Congress in
1882 passed the Chinese Exclusion Act, which suspended
the immigration of Chinese laborers for ten The
37
Racial Restrictions in the Law of Citizenship Racial Restrictions in the Law of Citizenship 39
Act was expanded to exclude all Chinese in 1884, and was refusing to ameliorate the backlog of would-be immigrants
eventually implemented In 1917, Congress from the Philippines, India, South Korea, China, and Hong
created “an Asiatic barred zone,” excluding all persons Kong, backlogs created in part through a century of racial
from During this same period, the Senate passed a exclusion. The history of racial discrimination in U.S.
bill to exclude “all members of the African or black race.” immigration law is a long and contuing one.
This effort was defeated in the House only after intensive As discriminatory as the laws of immigration have been,
lobbying by the Efforts to exclude the suppos the laws of citizenship betray an even more dismal record
edly racially undesirable southern and eastern Europeans of racial exclusion. From this country’s inception, the laws
were more successful. In 1921, Congress established a regulating who was or could become a citizen were tainted
temporary quota system designed “to confine immigration by racial prejudice. Birthright citizenship, the automatic
as much as possible to western and northern European acquisition of citizenship by virtue of birth, was tied to
stock,” making this bar permanent three years later in race until 1940. Naturalized citizenship, the acquisition of
the National Origin Act of With the onset of the citizenship by any means other than through birth, was
Depression, attention shifted to Mexican immigrants. Al conditioned on race until 1952. Like immigration laws, the
though no law explicitly targeted this group, federal immi laws of birthright citizenship and naturalization shaped
gration officials began a series of round-ups and mass the racial character of the United States.
deportations of people of Mexican descent under the gen
eral rubric of a “repatriation campaign.” Approximately Birthright Citizenship
500,000 people were forcibly returned to Mexico during
the Depression, more than half of them U.S. This Most persons acquire citizenship by birth rather than
pattern was repeated in the 1 when Attorney General through naturalization. During the for example,
Herbert Brownwell launched a program to expel Mexi naturalization will account for only 7.5 percent of the in
cans. This effort, dubbed “Operation Wetback,” indiscrim crease in the U.S. citizen At the time of the
inately deported more than one million citizens and prerequisite cases, the proportion of persons gaining citi
izens in 1954 zenship through naturalization was probably somewhat
Racial restrictions on immigration were not significantly higher, given the higher ratio of immigrants to total popula
dismantled until 1965, when Congress in a major overhaul tion, but still far smaller than the number of people gaining
of immigration law abolished both the national origin sys citizenship by birth. In order to situate the prerequisite
tem and the Asiatic Barred Even so, purposeful laws, therefore, it is useful first to review the history of
racial discrimination in immigration law by Congress re racial discrimination in the laws of birthright citizenship.
mains constitutionally permissible, since the case that up The U.S. Constitution as ratified did not define the citi
held the Chinese Exclusion Act to this day remains good zenry, probably because it was assumed that the English
law. l o Moreover, arguably racial discrimination in immi common law rule of jus soli would Under jus
gration law continues. For example, Congress has enacted soli, citizenship accrues to “all” born within a nation’s ju
special provisions to encourage Irish immigration, while risdiction. Despite the seeming breadth of this doctrine,
the word “all”is qualified because for the first one hundred States.” On the citizenship of the latter, the Supreme
years and more of this country’s history it did not fully Court answered negatively in 1884,holding in Elk
encompass racial minorities. This is the import of the Dred kins that Native Americans owed allegiance to their tribe
Scott decision. l4 Scott, an enslaved man, sought to use the and so did not acquire citizenship upon Congress
federal courts to sue for his freedom. However, access to responded by granting Native Americans citizenship in
the courts was predicated on citizenship. Dismissing his piecemeal fashion, often tribe by tribe. Not until 1924 did
claim, the United States Supreme Court in the person of Congress pass an act conferring citizenship on all Native
Chief Justice Roger Taney declared in 1857 that Scott and Americans in the United States. l 9 Even then, however,
all other Blacks, free and enslaved, were not and could questions arose regarding the citizenship of those born in
never be citizens because they were “a subordinate and the United States after the effective date of the 1924 act.
inferior class of beings.” The decision protected the These questions were finally resolved, and jus soli fully
holding South and infuriated much of the North, further applied, under the Nationality Act of 1940,which specifi
dividing a country already fractured around the issues of cally bestowed citizenship on all those born in the United
slavery and the power of the national government. Dred States “to a member of an Indian, Eskimo, Aleutian, or
Scott was invalidated after the Civil War by the Civil other aboriginal Thus, the basic law of citizen
Rights Act of 1866,which declared that “All persons born ship, that a person born here is a citizen here, did not
. . . in the United States and not subject to any foreign include all racial minorities until 1940.
power, excluding Indians not taxed, are declared to be Unfortunately, the impulse to restrict birthright citizen
citizens of the United Jus soli subsequently be ship by race is far from dead in this country. Apparently,
came part of the organic law of the land in the form of the California Governor Pete Wilson and many others seek a
Fourteenth Amendment: “All persons born or naturalized return to the times when citizenship depended on racial
in the United States, and subject to the jurisdiction proxies such as immigrant status. Wilson has called for a
thereof, are citizens of the United States and of the state federal constitutional amendment that would prevent the
wherein they reside.” l 6 American-born children of undocumented persons from re
Despite the broad language of the Fourteenth Amend ceiving birthright His call has not been ig
ment-though in keeping with the words of the 1866 nored: thirteen members of Congress recently sponsored a
some racial minorities remained outside the bounds of jus constitutional amendment that would repeal the existing
soli even after its constitutional enactment. In particular, Citizenship Clause of the Fourteenth Amendment and re
questions persisted about the citizenship status of children place it with a provision that “All persons born in the
born in the United States to noncitizen parents, and about United States . . . of mothers who are citizens or legal
the status of Native Americans. The Supreme Court did residents of the United States . . . are citizens of the
not decide the status of the former until 1898, when it United Apparently, such a change is supported
ruled in Wong Kim Ark that native-born children of by 49 percent of In addition to explicitly
aliens, even those permanently barred by race from acquir discriminating against fathers by eliminating their right to
ing citizenship, were birthright citizens of the United confer citizenship through parentage, this proposal
itly discriminates along racial lines. The effort to deny citizenship to “white persons”: Virginia in 1779, South
citizenship to children born here to undocumented immi Carolina in 1784, and Georgia in Though there
grants seems to be motivated not by an abstract concern would be many subsequent changes in the requirements
over the political status of the parents, but by racial ani for federal naturalization, racial identity endured as a bed
mosity against Asians and Latinos, those commonly seen rock requirement for the next 162 years. In every natural
as comprising the vast bulk of undocumented migrants. ization act from 1790 until 1952, Congress included the
Bill Ong Hing writes, “The discussion of who is and who is “white person”
not American, who can and cannot become American, goes The history of racial prerequisites to naturalization can
beyond the technicalities of citizenship and residency re be divided into two periods of approximately eighty years
quirements; it strikes a t the very heart of our nation’s long each. The first period extended from 1790 to 1870, when
and troubled legacy of race As this troubled only Whites were able to naturalize. In the wake of the
legacy reveals, the triumph over racial discrimination in Civil War, the “white person” restriction on naturalization
the laws of citizenship and alienage came slowly and only came under serious attack as part of the effort to expunge
recently. In the campaign for the “control of our borders,” Dred Scott. Some congressmen, Charles Sumner chief
we are once again debating the citizenship of the among them, argued that racial barriers to naturalization
born and the merits of Dred should be struck altogether. However, racial prejudice
against Native Americans and Asians forestalled the com
Naturalization plete elimination of the racial prerequisites. During con
gressional debates, one senator argued against conferring
Although the Constitution did not originally define the citi “the rank, privileges, and immunities of citizenship upon
zenry, it explicitly gave Congress the authority to establish the cruel savages who destroyed [Minnesota’s] peaceful
the criteria for granting citizenship after birth. Article I settlements and massacred the people with circumstances
grants Congress the power “To establish a uniform Rule of of atrocity too horrible to Another senator won
From the start, Congress exercised this dered “whether this door [of citizenship] shall now be
power in a manner that burdened naturalization laws with thrown open to the Asiatic population,” warning that to do
racial restrictions that tracked those in the law of birth so would spell for the Pacific coast “an end to republican
right citizenship. In 1790, only a few months after ratifica government there, because it is very well ascertained that
tion of the Constitution, Congress limited naturalization to those people have no appreciation of that form of govern
“any alien, being a free white person who shall have re ment; it seems to be obnoxious to their very nature; they
sided within the limits and under the jurisdiction of the seem to be incapable either of understanding or carrying it
United States for a term of two This clause mir Sentiments such as these ensured that even after
rored not only the de facto laws of birthright citizenship, the Civil War, bars against Native American and Asian
but also the racially restrictive naturalization laws of sev naturalization would Congress opted to main
eral states. At least three states had previously limited tain the “white person” prerequisite, but to extend the
-4 Racial Restrictions in the Law of Citizenship Racial Restrictions in the Law of Citizenship 45
right to naturalize to ‘‘persons of African nativity, or Afri open to charges of hypocrisy for banning from naturaliza
can After 1870, Blacks as well as Whites could tion the nationals of many of its Asian allies. During the
naturalize, but not others. war, the United States seemed through some of its laws
During the second period, from 1870 until the last of the and social practices to embrace the same racism it was
prerequisite laws were abolished in 1952, the White-Black fighting. Both fronts of the war exposed profound inconsis
dichotomy in American race relations dominated natural tencies between U.S. naturalization law and broader so
ization law. During this period, Whites and Blacks were cial ideals. These considerations, among others, led Con
eligible for citizenship, but others, particularly those from gress to begin a process of piecemeal reform in the laws
Asia, were not. Indeed, increasing antipathy toward governing citizenship.
Asians on the West Coast resulted in an explicit disquali In 1940, Congress opened naturalization to “descen
fication of Chinese persons from naturalization in 1 dants of races indigenous to the Western
The prohibition of Chinese naturalization, the only U.S. Apparently, this “additional limitation was designed ‘to
law ever to exclude by name a particular nationality from more fully cement’ the ties of Pan-Americanism” at a time
citizenship, was coupled with the ban on Chinese immigra of impending In 1943, Congress replaced the pro
tion discussed previously. The Supreme Court readily up hibition on the naturalization of Chinese persons with a
held the bar, writing that “Chinese persons not born in provision explicitly granting them this In 1946, it
this country have never been recognized as citizens of the opened up naturalization to persons from the Philippines
United States, nor authorized to become such under the and India as Thus, at the end of the war, our natu
naturalization While Blacks were permitted to ralization law looked like this:
naturalize beginning in 1870, the Chinese and most “other
The right to become a naturalized citizen under the provisions of
non-Whites” would have to wait until the 1940s for the
this Act shall extend only
right to
World War forced a domestic reconsideration of the (1) white persons, persons of African nativity or descent,
racism integral to U.S. naturalization law. In 1935, and persons of races indigenous to the continents of North
Germany limited citizenship to members of the Aryan or South America or adjacent islands and Filipino persons
race, making Germany the only country other than the or persons of Filipino descent;
(2) persons who possess, either singly or in combination,
United States with a racial restriction on
a preponderance of blood of one or more of the classes
The fact of this bad company was not lost on those adminis
specified in clause
tering our naturalization laws. “When Earl G. Harrison in (3) Chinese persons or persons of Chinese descent; and
1944 resigned as United States Commissioner of Immigra persons of races indigenous to India; and
tion and Naturalization, he said that the only country in (4) persons who possess, either singly or in combination,
the world, outside the United States, that observes racial a preponderance of blood of one or more of the classes
discrimination in matters relating to naturalization was specified in clause or, either singly or in combination, as
Nazi Germany, ‘and we all agree that this is not very desir- much as one-half blood of those classes and some additional
able company.’ ”38 Furthermore, the United States was blood of one of the classes specified in clause
This incremental retreat from a “Whites only” conception woman’s own qualifications, racial or The au
of citizenship made the arbitrariness of U.S. naturalization tomatic naturalization of a woman upon her marriage to a
law increasingly obvious. For example, under the above citizen or upon the naturalization of her husband ended
statute, the right to acquire citizenship depended for some in
on blood-quantum distinctions based on descent from peo The citizenship of American-born women was also af
ples indigenous to islands adjacent to the Americas. In fected by the interplay of gender and racial restrictions.
1952, Congress moved towards wholesale reform, over Even though under English common law a woman’s nation
hauling the naturalization statute to read simply that ality was unaffected by marriage, many courts in this coun
right of a person to become a naturalized citizen of the try stripped women who married noncitizens of their U.S.
United States shall not be denied or abridged because of Congress recognized and mandated this
race or sex or because such person is Thus, in practice in 1907, legislating that an American woman’s
1952, racial bars on naturalization came to an official marriage to an alien terminated her Under
considerable pressure, Congress partially repealed this
Notice the mention of gender in the statutory language act in However, the 1922 act continued to require
ending racial restrictions in naturalization. The issue of the expatriation of any woman who married a foreigner
women and citizenship can only be touched on here, but racially barred from citizenship, flatly declaring that “any
deserves significant study in its own As the lan woman citizen who marries an alien ineligible to citizen
guage of the 1952 Act implies, eligibility for naturalization ship shall cease to be a Until Congress repealed
once depended on a woman’s marital status. Congress in this provision in marriage to a non-White alien
1855 declared that a foreign woman automatically ac by an American woman was akin to treason against this
quired citizenship upon marriage to a U.S. citizen, or upon country: either of these acts justified the stripping of citi
the naturalization of her alien This provision zenship from someone American by birth. Indeed, a
built upon the supposition that a woman’s social and politi woman’s marriage to a foreigner was perhaps a
cal status flowed from her husband. As an 1895 treatise on worse crime, for while a traitor lost his citizenship only
naturalization put it, “A woman partakes of her husband’s after trial, the woman lost hers The laws
nationality; her nationality is merged in that of her hus governing the racial composition of this country’s citizenry
band; her political status follows that of her A came inseverably bound up with and exacerbated by sex
wife’s acquisition of citizenship, however, remained sub ism. It is in this context of combined racial and gender
ject to her individual qualification for that prejudice that we should understand the absence of any
is, on whether she was a “white Thus, the Su women among the petitioners named in the prerequisite
preme Court held in 1868 that only “white women” could cases: it is not that women were unaffected by the racial
gain citizenship by marrying a Racial restric bars, but that they were doubly bound by them, restricted
tions further complicated matters for noncitizen women in both as individuals, and as less than individuals (that is,
that naturalization was denied to those married to a man as wives).
racially ineligible for citizenship, irrespective of the
0 The Prerequisite Cases The Prerequisite Cases 51
was also available to Blacks? The lag between the enact cases turned on whether the applicant was White, when
ment of a racial prerequisite for naturalization and its first every case was litigated after 1870, the year naturalization
legal test may partly reflect the relative insignificance of became equally available to Blacks? This question does
federal as opposed to state citizenship during this coun not permit the tautological response that few sought natu
try’s first century. Prior to the Civil War, state citizenship ralization as Blacks because during this period there were
was more important than federal citizenship for securing few “Black” immigrants. As just mentioned, many who ar
basic rights and privileges. National citizenship gained rived here in the second half of the nineteenth century did
significance only in the wake of the Civil War and the not fit neatly into either the White or Black category. Thus,
Fourteenth Amendment. After 1870, persons born the “race” of the immigrants does not explain the over
within the dominion and allegiance of the United States whelming predominance of “white person” cases. Indeed,
were citizens and constituents of the sovereign commu some immigrant groups, for example the Chinese, were
nity. Their status with respect to the states depended upon initially characterized as Black, suggesting that for some,
this national status and upon their own choice of resi attempting to naturalize as a “white person” was the more
dence, and it could not be impeached or violated by state difficult route. According to Ronald Takaki, “The Chinese
Thus, the spate of naturalization cases that began migrants found that racial qualities previously assigned to
in 1878 may reflect the increased importance of national blacks quickly became ‘Chinese’ characteristics. . . .
versus state citizenship after the Civil War. In addition, White workers referred to the Chinese as ‘nagurs,’ and a
the initial lack of prerequisite litigation may have been a magazine cartoon depicted the Chinese as a bloodsucking
function of the early demographics of migration to this vampire with slanted eyes, a pigtail, dark skin, and thick
country. Those disembarking on U.S. shores through the lips. Like blacks, the Chinese were described as heathen,
first half of the 1800s were for the most part either clearly morally inferior, savage, childlike, and
admissible to or obviously barred from citizenship, for ex prisingly, this early social treatment of the Chinese as akin
ample, peoples from western Europe or western Africa, to Blacks also found legal expression. For example, in the
respectively. “Because few non-Caucasians immigrated to 1854 case People v. the California Supreme Court
the United States during the first half of the 19th century, heard the appeal of a White defendant challenging his con
the words ‘free white alien’ had not then taken on great viction for murder. He appealed on the grounds that he
Under this hypothesis, the prerequisite was convicted only through the testimony of a Chinese
cases arose out of the changing nature of immigration, witness, and that this testimony should have been ex
and more particularly, out of the increased immigration of cluded under an 1850 statute providing that “no Black, or
persons not clearly White or Black. The national identities Mulatto person, or Indian shall be allowed to give evidence
of the prerequisite litigants, who mainly hailed geographi in favor of, or against a White The court agreed
cally from western Asia to Polynesia, support this expla with the defendant that the Chinese witness was barred
nation. from testifying by the 1850 statute, reasoning that Indians
This last point, however, frames the second initial ques originally migrated from Asia, and so all Asians were con
tion: Why is it that all but one of the fifty-two prerequisite versely also Indian, and that, at any rate, “Black” was a
The Prerequisite Cases The Prerequisite Cases 53
generic term encompassing all non-Whites, and thus in a simple procedure by which applicants are slotted into
cluded Chinese persons. This legal equation of Chinese transcendent categories. The racial definitions established
and Black status was not temporally or geographically in the prerequisite cases are products of their particular
unique. Three-quarters of a century later and across the historical setting: they are a function of the milieu of the
country, Mississippi’s Supreme Court reached a similar United States in the half-century after the Civil War, an
decision, holding in 1925 that school segregation laws tar era that included not only social turmoil and political
geting the “colored race” barred children of Chinese de change, but also evolving patterns of migration and the
scent from attending schools for White children.* Given efforts of recent immigrants to define spaces and identities
their social and legal negroization, it may well have been for themselves. The prerequisite opinions do not record
easier for the Chinese and other immigrants to argue their the facile recognition of racial difference, but rather the
qualification for citizenship as Blacks rather than as convoluted processes through which race is socially and
Whites. legally constructed.
That no immigrants adopted this strategy may reflect the
naturalization statute’s geographic emphasis in defining Overview
Blacks: the 1870 act referred to persons of “African nativ
ity, or African descent,” rather than to “black persons.” By Two aspects of the courts’ reasoning in the prerequisite
way of comparison, the naturalization statute referred to cases seem especially striking today. On the one hand,
“white persons,” rather than to “persons of European an in an unexpected and disquieting way, the reasoning is
cestry.” The existence of more firmly established racial amusing in its convoluted and almost quaint approach to
definitions of who was Black may also have obviated the defining the racial identity of people we now easily catego
need for new litigation. The legal definition of Blacks, un rize. It is strangely entertaining to see judges struggle to
like that of Whites, was already well established at the turn use antiquated racial theories to justify what seems self-
of the In addition, however, it seems nearly cer evident today. On the other hand, in a not unexpected
tain that the social stigma and harsh discrimination im manner, the cases are disturbing because of the judges’
posed on those with Black status discouraged applicants patent racism. The opinions are jarring in their willingness
for citizenship from seeking admission on that basis. Immi to express at the highest judicial levels derogatory views
grants to this country quickly learn the value of being White that today are almost universally condemned. The com
rather than Black, and thereby learn to cast themselves as plexity of the rationalizations behind racial assignments
No doubt this lesson influenced many an immi and the racism inherent in such thinking will be more fully
grant’s decision to apply for citizenship as a “whiteperson.” explored in subsequent chapters. As part of an overview of
Whatever the reasons for the advent and character of the cases, however, these two initial observations merit
the racial prerequisite litigation, reviewing the possible comment here as well, for they remind us of our position
provenance of these cases is an important introduction as inheritors of the racial systems created in part by the
to them. These conjectures illustrate that at issue is the prerequisite cases, and also of the powerful role of preju
complicated process by which races are fashioned, not dice in the elaboration of racial identities.
The Prerequisite Cases 55
The Prerequisite Cases

discussions of ethnology, the solicitation of help from mem
The first racial prerequisite case, I n re Ah Y u p , was
bers of the bar, the microscopic examination of Congres
decided in 1878 by a federal court in California.’’ It pre
sional intent in repeatedly limiting naturalization to “white
saged the intellectual struggle and tangled reasoning that
persons, ” all of Judge Sawyer’s efforts seem superfluous
to some degree marked every subsequent prerequisite
and even laughable, in the context of a decision over
case. An excerpted version of this case appears in Appen
whether someone Chinese is answer seems so
dix B. The court there in the person of Circuit Judge Saw
obvious. But that we now view the court’s struggle
yer described Ah Yup as native and citizen of the empire
as quaint or absurd should draw attention to our own his
of China, of the Mongolian race,” framing the issue this
torical position. Our response betrays that we are the
way: “Is a person of the Mongolian race a ‘white person’
immediate and largely unquestioning inheritors of the pro
within the meaning of the Despite the seeming
nouncement that Chinese are not White. Accepting the
simplicity of the question, Judge Sawyer strained to pro
of Chinese as a commonplace truth, we are
vide an answer. Noting that the case constituted the first
naturalization application by someone from China, he pro perplexed and amused by Judge Sawyer’s arduous efforts
to justify, or rather assert, that same conclusion. The
ceeded cautiously, even requesting that “members of the
b a r . . . make such suggestions as amici curiae as occurred lengthy categorical debates in the prerequisite cases seem
to them upon either side of the He also solic ridiculous only because we have fully accepted the catego
ited the opinion of science, wrestling with the contempo ries these cases established. Decisions about racial iden
rary anthropological thought on racial classifications and tity are complex: they appear obvious only in retrospect,
quoting out of the “Ethnology” entry to the New American and then only from a vantage point built upon the assump
Cyclopedia. Not content to rely solely on the amici’s argu tion that races are fixed, transhistorical categories. The
ments and scientific evidence, Judge Sawyer in addition extent to which the definitional struggles in these cases
reviewed the legislative history of the naturalization stat seem quaint measures on some level the extent to which
ute, carefully searching each reenactment of the prerequi we have erroneously accepted their simple conclusions.
The truly curious, then, is not the typological sophistry of
site law for some clue as to its meaning. He focused partic
ularly on the congressional debates spurred by Senator the courts, but our own certainty regarding the obvious
opposition to racial restrictions, as these debates validity of the recently fabricated.
directly raised the question of Chinese naturalization. In addition to its seeming quaintness, the convoluted
Only after considering all of these disparate sources did reasoning in the prerequisite cases is also striking because
Judge Sawyer brave an answer. “I am,” he finally wrote, of its pervasive racism. Some judges showed little reti
“of the opinion that a native of China, of the Mongolian cence in expressing patently racist views. For example, a
race, is not a white
denied Ah Yup citizenship.
On this basis, the court . federal district court in Washington offered this rationale
in 192 1 to justify the racial bar to Asian naturalization:
The lengthy mental tussle over Ah Yup’s race seems
in retrospect strange. Reading the decision, some of the It is obvious that the objection on the part of Congress is not due
language and reasoning seems humorous. The extended to color, as color, but only to color as an evidence of a type of
civilization which it characterizes. The yellow or bronze racial adding, “if there is no obstacle, it would give the court
color is the hallmark of Oriental despotisms. It was deemed that great satisfaction to grant his petition, and admit him to
the subjects of these despotisms, with their fixed and ingrained citizenship.” Such solicitude, however, often seems dis
pride in the type of their civilization, which works for its welfare ingenuous, or at least incapable of overcoming the strong
by subordinating the individual to the personal authority of the taint of racism in these opinions. Thus, the same judge who
sovereign, as the embodiment of the state, were not fitted and expressed this high sentiment regarding Po manifested his
suited to make for the success of a republican form of Govern subscription to the racist hierarchies of the time only a few
ment. Hence they were denied citizenship. l5
lines further on. In sympathy for the excluded applicant,
In District Judge opinion, Asians were right Judge Danaher complained of the 1870 revision allowing
fully barred from citizenship because their “yellow the naturalization of persons of African descent: “A Congo
marked them as unfit for republican government. One negro but five years removed from barbarism can become
might argue that his views turned on cultural or political, a citizen of the United States, but his more intelligent
rather than racial, prejudice. However, these forms of prej fellowmen . . . of the yellow races . . . are denied the
udice blur together, each fading into the other. Indeed, the The judge in Po was not alone in seeing a contra
concept of race incorporates, and arguably partially arose diction between admitting to citizenship Blacks but not
out of, cultural prejudice. Audrey Smedley correctly con Asians. A federal district judge sitting in Oregon lamented
tends that “at no time in the history of its use for human in 1880 that Congress should have the boon
beings was the term reserved for groups based solely of American citizenship to the comparatively savage and
on their biophysical characteristics. From the start it was strange inhabitants of the ‘dark continent, while withhold
a cultural construct composed of social values and beliefs ing it from the intermediate and much-better-qualified red
synergistically related in a comprehensive worldview, in and yellow A generation later and across the
tegral to the cognitive perceptions that the Europeans and continent, a federal district judge in South Carolina, per
white Americans had of themselves and the rest of the haps more pragmatic, resigned himself to the dictates of
world.” l6 Like Judge Cushman, some prerequisite courts Congress thus: “It may be that a highly educated and culti
expressed racial antipathies that ran this spectrum of prej vated Japanese or Chinese or Malay or Siamese is better
udice, denigrating applicants not only in terms of color, ,
calculated to make a useful and desirable citizen than a
but also of cultural and intellectual unfitness for citi savage from the Guinea coast, but it is not for the courts to
zenship. give effect to such
In contrast to such openly racist views, some judges Protestations of solicitude notwithstanding, it seems
writing in the racial prerequisite cases proclaimed fair- safe to say, looking both at the content of the decisions and
mindedness on the issue of race as well as solicitude for at the context of the times, that most if not every judge who
the petitioners. For example, in 1894, Judge Danaher of heard petitions for citizenship at the turn of this century
the City Court of Albany, New York, barred a Burmese harbored profoundly prejudiced beliefs about the appli
petitioner from naturalization in In re Po, but not before cants whose fates they were charged with deciding.
remarking that he “appears to be a man of education,” Thomas Ross reminds us, “Nineteenth-century Americans
E
8 The Prerequisite Cases The Prerequisite Cases 59
lived in a truly racist society. Racist talk and racial epi to which our judicial system, and indeed law itself, has
thets were accepted forms of public discourse. Black per been and remains tainted by the racism that permeates
sons were first enslaved, and later segregated and subju U.S.
gated, by law. And their Supreme Court sanctioned all of This taint, moreover, has consistently led to injustice. If
this in the name of the Constitution. In matters of race, a reminder of the ill effects of judicial racism is needed,
the period was shameful and tragic for the Court and the consider the application of the “white person” restriction
In reading the prerequisite decisions, one on the lives of two applicants, a certain Knight, whose first
should not lose sight of the simple fact that racism played name does not appear in the case report, and Gee Hop. In
a key role in the decisions about who was White. 1909, at the age of forty-three, Knight applied for natural
Although pointing out judicial racism in the midst of a ization. H e had served in the U.S. Navy for more than a
discussion of cases applying laws that obviously originated quarter century, receiving a medal in the battle of Manila
out of racial prejudice might seem unnecessary, doing so Despite his long service to this country, however,
serves an important purpose. Foregrounding racism coun as with everyone else, Knight’s eligibility to naturalize
teracts the “tradition of celebration” in legal scholarship, a turned on whether he was a “white person.” To answer this
tradition that protects the reputations of courts and judges question, the U.S. District Court for the Eastern District
by systematically concealing any taint of racial of New York recited Knight’s genealogy. “It appears from
This tradition of celebration is misplaced in discus the record,” Judge Chatfield wrote, “that he was born on a
sions of law, for as Randall Kennedy notes, “from the point schooner flying the British flag, in the Yellow Sea, off the
of view of racism’s victims, there is little to coast of China; that his father was English by birth and
Nevertheless, it is a prominent tradition, evident even in parentage; and that his mother was one-half Chinese and
scholarly discussions of the prerequisite cases. Thus, one one-half Japanese, having been married to the applicant’s
scholar, Charles Gordon, who opposed the racial restric father at Shanghai, under the British Knight’s ori
tions on naturalization, nevertheless accepted at face gins demonstrate the complexity of individual ancestry as
value the protestations offered by the prerequisite courts well as the absurdity of trying to categorize humanity into
that they were innocent of racism. Gordon sought to pro a small number of rigid races. Nevertheless, the court ex
tect the reputation of the courts by noting that “many of amined Knight’s parentage for evidence of whether he was
the courts which have concluded that the racial exclusions White, and concluded that he was not. Judge Chatfield
barred the naturalization of particular petitioners have asserted that “[a] person, one-half white and one-half of
commented on the eminent qualifications of the persons some other race, belongs to neither of those races, but is
before them and have deplored their inability to admit literally a half-breed,” and concluded, “the application
such individual applicants to American He must be Even though Knight knew no other
cited several cases in support of this proposition, among home and had served this country honorably for two-thirds
them Po. The celebratory tradition in legal scholarship is of his life, U.S. law barred him from naturalizing because
one we must constantly guard against, for its perennial as someone not White he was racially unfit to be a citizen.
regeneration perpetuates an amnesia regarding the extent Unlike Knight, Gee Hop initially succeeded in
The Prerequisite Cases
.
ing as an American. He secured U.S. citizenship in 1890 thought The judges in the prerequisite cases
and in that same year applied for and received a passport passed judgment on the lives of individuals, and, as is
from the State Department. Thus, when in 1895 he sought always the case where law and racism combine, caused
reentry to the country upon returning from a trip to China, immense harm. To the extent that the judicial system still
he arrived armed with an official passport, a citizen of the acts in racially prejudiced ways, and to the extent that we
United Nevertheless, the port of San Francisco continue to accept uncritically the categorical practices
refused him permission to disembark from the steamship evidenced in the prerequisite cases and in law generally,
on which he had sailed, ordering the master of the ship to such harms continue today. The careful study of the pre
retain Gee Hop on board because as a Chinese person he requisite cases is thus imperative.
was legally barred from entering the United States. Gee
Hop sued, arguing that his naturalization and passport Rationalizing Race: The Early Cases
must mean at the least that he could enter the country of
his citizenship. The U.S. District Attorney disagreed, and Between 1878 and 1909, courts heard twelve prerequisite
the federal district court for northern California ordered cases, rejecting the applicants’ claims in eleven of them.
him permanently excluded. Noting that naturalization was The courts barred the naturalization of applicants from
open only to “white persons” and “aliens of African de China, Japan, Burma, and Hawaii, as well as that of two
scent,” District Judge Morrow concluded that “Mongo mixed-race applicants. Given the virulent anti-Asian prej
lians, or persons belonging to the Chinese race, are not udice of the times, these results are not surprising. In the
included in this Therefore, the court reasoned, both one case during this period in which the petitioner did
Gee Hop’s certificate of naturalization and his passport prevail, In re Rodriguez, a federal court in Texas in 1897
were facially void, meaningless pieces of paper because admitted to citizenship the “pure-blooded Mexican” appli
naturalization was a legal impossibility for Chinese per cant, but remarked that the strict scientific classifica
sons. Dismissing these documents, Judge Morrow decided tion of the anthropologist should be adopted, he would
two days before Christmas 1895 that “Gee Hop is not a probably not be classed as The court allowed the
citizen of the United States, as claimed by him, and cannot applicant to naturalize on the basis of a series of treaties
be permitted to land in this Gee Hop thought conferring citizenship on Spaniards and Mexicans in the
he was returning home to his country of citizenship, official wake of U.S. expansion into Florida and the
passport securely in hand, only to be left expatriated at Rodriguez was thus admitted despite the court’s belief that
the border, stranded on a steamship within sight of San he was not As the exception, Rodriguez proves the
Francisco’s hills. rule. In this initial period, courts virtually always opposed
The fates of Knight and Gee Hop were not particularly claims of Whiteness.
tragic or unique. Under the racial prerequisite laws, this These early prerequisite cases are important, however,
country denied citizenship to others who had served in the not in the results they reached, but because of the ratio
repudiated others who were long-time resi nales offered by the courts in making racial assignments.
d e n t ~ and
, ~ ~stripped still others of the citizenship they The task of deciding who was White may at first glance
seem a simple one. However, the evidence suggests other coolie is the ideal industrial machine, the perfect human
wise: the favorable ruling for Rodriguez even though the ox. ” 4 1 argument demonstrates that views regard
court did not believe him to be White; the tentativeness of ing the race of Japanese and Chinese persons and their
the court in Ah Yup; and the naturalization of some Chi fitness for citizenship turned on racial prejudice.
nese such as Gee Hop even in the face the “white person” ore’s determined advocacy, however, shows that many
bar. Consider also the argument John Wigmore earnestly other factors also entered into the debates about who qual
advanced in 1894 in the pages of the American Law Review. ified as White. Race is often seen in fixed terms, either as
The famous evidence scholar and treatise writer con a biological given or a static social category. However, as
tended that while the Chinese were not “white persons,” the debates about race at the turn of the century demon
the Japanese certainly Building his argument care strate, racial categorization is a fluid process that turns
fully, he asserted: the scientific use of language and not only on prejudice, but also on factors ranging from
in the light of modern anthropology, the term ‘white’ may dubious science to national honor.
properly be applied to the ethnical composition of the Jap An extraordinary number of rationales surfaced as crite
anese He continued: ria in the prerequisite decisions. However, in the complex
Having as good a claim to the color “white” as the southern task of racial definition, judges deciding prerequisite cases
European and the Semitic peoples, having to-day greater affinit relied principally on four distinct rationales: common
ies with us in culture and progress and the facility of social knowledge, scientific evidence, congressional in
amalgamation than they have with any Asiatic people, isolated tent, and legal precedent. Each of the first three ratio
as they are to-day from Asia in tendencies and sympathies and nales is present in the first prerequisite case, Ah Yup.
isolated as they have been in racial history, it would seem that a “Common knowledge” rationales appeal to popular concep
liberal interpretation should easily prevail, and that the statute tions of races; for example, Judge Sawyer defined the
should be construed in the direction indicated by American words “white persons” in part by asserting that these
honor and sympathy [to allow the naturalization of Japanese words “have undoubtedly acquired a well settled meaning
in common popular speech, and they are constantly used
Not everyone agreed with Wigmore in his willingness to in the sense so acquired in the literature of the country,
support Japanese but not Chinese naturalization. as well as in common “Scientific evidence”
more’s preference for the Japanese contrasts with the pref rationales appeal to specialized, reputedly objective
erence articulated by the editor of the Republican, knowledge, as when the same court defined White by refer
Chester Rowell, in 1909. While against both Chinese and ence to the theories of Blumenbach, Cuvier, and
Japanese immigration in principle, as a businessman Linnaeus, the leading contemporary students of racial
ell favored the Chinese: “Taking for the moment this [busi intent” refers to those explana
nessman’s] viewpoint, we find the Chinese fitting much tions that turned on an examination of Congress’s will in
better than the Japanese into the status which the white passing particular pieces of legislation. For example,
American prefers them both to occupy- that of biped do Judge Sawyer dedicated significant space to recapitulating
mestic animals in the white man’s service. The Chinese the 1870 debates sparked by the efforts to strike the
“white person” requirement from the naturalization laws. seem to include only individuals of the Caucasian race.
“It is clear,” he wrote, “that Congress retained the word Under the statute, therefore, only members of this race
‘white’ in the naturalization laws for the sole purpose of and of the Ethiopian race can be Common
excluding the Chinese from the right of knowledge and scientific evidence worked hand in hand in
Finally, “legal precedent” indicates reliance on previous the early cases. During this period these two rationales
cases that ruled directly on the race of a particular nation were mutually reinforcing.
ality, but does not include instances where the courts cite Why did common knowledge and scientific evidence par
case precedent for the appropriate legal standard, that is, allel each other? There are at least two ways in which
common knowledge or scientific evidence. As an example common knowledge and scientific evidence would produce
of “legal precedent,” the court in In re Hong Yen Chang the same conclusions regarding racial difference: if they
relied on the holding in Ah Yup that Chinese are not both measured the same physical fact, or, alternately, if
“white” to refuse citizenship to a Chinese they both were tainted by the same social preconceptions
Table 1 in Appendix A lists in chronological order the of racial difference. In the first case, if what people popu
cases considering the “white person” prerequisite to citi larly believed about races correlated to real physical dif
zenship in the period from 1878 to 1909, along with anno ferences, and these same differences were accurately mea
tations regarding the rationales employed. This table sured by science, then no contradiction between common
shows that between 1878 and 1909 common knowledge knowledge and scientific evidence would exist. They
and scientific evidence pushed in the same direction, pro would both be based on the same observable and measur
viding consistent justifications for denying naturalization. able physical differences. Apparently, the courts in the
In two of the three cases in which judges relied on scien early prerequisite cases believed this to be the case. At
tific evidence, they also appealed to common knowledge. least during this early period, the judges who simultane
Similarly, in two of the three cases in which courts invoked ously employed both rationales seemed convinced that so
common knowledge, they also turned to scientific evi i
cial preconceptions about race were grounded on real ra
dence. This simultaneous reliance on popular conceptions cial differences that science accurately elucidated.
of racial difference and on science is evident in Ah Consider In re Saito, a decision rendered by a federal court
which not only offered both of these rationales indepen in Massachusetts in 1894 that denied naturalization to a
dent of each other, but also combined the two. “As every Japanese applicant. The court in the person of Circuit
where used in the United States, one would scarcely fail Judge Colt first relied on common knowledge, stating that
to understand that the party employing the words ‘white a common, popular standpoint, both in ancient and
person’ would intend a person of the Caucasian modern times, the races of mankind have been distin
During this same period, at least one legal commentator guished by difference in color, and they have been classi
interpreting the “white person” prerequisite similarly re fied as white, black, yellow, and brown Here,
lied simultaneously on both rationales: “Whether viewed Judge Colt argues that the popular conception of race is a
in the light of the popular or of the scientific meaning, or of function of easily observed differences in skin color that
Congressional intent, therefore, the words ‘white person’ mark innate racial difference. At the same time, Judge
Colt relied on scientific evidence. He asserted that these save its simple racial taxonomies. The courts responded
differences in skin color provide the basis for the scientific initially with some confusion, but ultimately followed the
division of races: “Writers on ethnology and anthropology Supreme Court in denying these “Caucasians” naturaliza
base their division of mankind upon differences in physical tion in order to preserve the common knowledge about
rather than in intellectual and moral character. . . . all Whiteness.
these marks, the color of the skin is considered the most
important criterion for the distinction of race, and it lies at Scientific Evidence versus Common Knowledge
the foundation of the classification which scientists have
Judge Colt in effect argued that the physical In contrast to the early racial prerequisite cases, the pre
features that allowed popular discernment of racial differ requisite decisions from 1909 to 1923 are riven by contra
ence also served as the basis for the scientific categoriza dictory results and rationales. For the most part, judges
tion of human races. His belief that the popular conception continued to rule that people with mixed or Asian anteced
of race followed real, accurately measured biological dif ents did not qualify as White. Surprisingly, however, a
ferences permitted concurrent reliance on common knowl court in 1909 ruled that Armenians were White, even
edge and scientific evidence to justify racial divisions. In though their origins east of the Bosporus Strait, the official
its linking of popular beliefs and science, seems typi geographic line between Europe and Asia, made them at
cal of this early period. As evidence of this, it is notewor least geographically More perplexing still, judges
thy that the contemporary treatise on naturalization men qualified Syrians as “white persons” in 1909, 1910, and
tioned previously accepted Judge Colt’s reasoning in 1915, but not in 1913 or 1914; 52 and Asian Indians were
without question, virtually plagiarizing that holding to de “white persons” in 1910, 1913, 1919, and 1920, but not in
fine who could naturalize under the “white person” bar on 1909 or 1917, or after 1923 Significantly, these contra
dictory results correlated with the rise of a marked antago
There is, however, the second possibility regarding the nism between scientific evidence and common knowledge
nature of race that would also lead to a congruence be as racial meters. Table 2 in Appendix A presents the racial
tween common knowledge and scientific evidence. If race prerequisite cases decided between 1909 and 1923.
were a social idea that thoroughly infected the scientific Among the lower courts in that period, six relied on scien
study of race, then the two principal racial rationales tific evidence, while seven others embraced a common-
would square: both would measure the same thing, not knowledge approach. No court relied on both rationales.
physical facts but social beliefs. This possibility is far less Moreover, in every scientific evidence case the petitioner
flattering to science and to the courts, but far more plausi was held to be a “white person,” while in every case but
ble, especially in light of the prerequisite decisions one that turned on common knowledge the court barred
reached after 1909. Changing patterns of migration meant the petitioner from naturalization. In the context of natu
that after that year the courts confronted a series of cases ralization law, after 1909 scientific evidence and common
concerning people from western and southern Asia. Sci knowledge were in direct and constant conflict on the is
ence classified these people as Caucasian in an attempt to sue of race- they were mutually exclusive as rationales
and in terms of results. During this period, “white” was jour decision, the legal split between scientific evidence
a highly unstable legal category, subject to contestation, and common knowledge had fully developed. Three courts
expansion, and contraction. quickly followed lead, naturalizing applicants as
The conflict over whether scientific evidence or common “white persons” on the basis of scientific With
knowledge should serve as the arbiter of race arose in the only slightly less rapidity, four decisions rejected Najour,
second case of this period, In re Najour, which was de labeling the applicants non-White on the basis of common
cided in December 1909 by a federal court in Georgia. The resulting chaos was left unresolved until
Nujour is the first case in which an applicant for citizen in 1923 the Supreme Court repudiated approach.
ship prevailed and successfully litigated his status as a Despite Judge assertion in Najour that the
“white Significantly, District Judge Newman term “white person” “refers to race, rather than to color,
relied on scientific evidence to buttress his holding in Nu and fair or dark complexion should not be allowed to con
jour. Excerpts from Najour appear in Appendix B, but the trol” in questions of naturalization, no judge, not even
first lines of this cardinal case merit quotation here: Judge Newman, was particularly comfortable with this le
gal point. Instead, the decisions betray judicial antipathy
In admitting to naturalization the petitioner, Costa George Na
toward allowing dark-skinned persons to naturalize as
jour, I wish to say this: Although the term “free white person” is
used in the statutes, this expression, I think, refers to race,
Whites, a predictable response of the times. This antipathy
rather than to color, and fair or dark complexion should not be can be seen in the way the various courts discussed the
allowed to control, provided the person seeking naturalization applicants’ skin color. Consider two decisions denying pe
comes within the classification of the white or Caucasian race, titions for citizenship issued by a federal court in South
and I consider the Syrians as belonging to what we now recog Carolina. In the first, the judge said of the petitioner, “in
nize, and what the world recognizes, as the white race. . . . color, he is about that of a walnut, or somewhat darker
Quite a recent work, which I have before me now, “The than is the usual mulatto of one-half mixed blood between
World’s People,” by Dr. A. H. Keane, classifies, without ques the white and the negro In the next, the same
tion or qualification in any way, Syrians as part of the Caucasian judge described another ill-fated applicant as “darker than
or white race, and this they are, so far as my information and the usual person of white European descent, and of that
knowledge tinged or sallow appearance which usually accompanies
?
Judge Newman’s reliance on science altered the discourse persons of descent other than purely European.” 59 Though
of racial classification in the prerequisite cases in two im the judge did not identify skin color as a determining factor
portant ways. First, it distinguished between skin color in his decisions, that the court thought it necessary to
and race in a manner that made dark skin no bar to natural describe the applicants’ complexions suggests that this
ization, and hence, to White status. Second, it transformed factor contributed to the decisions to deny them natural
membership in the “Caucasian”race from one among many ization. Concern over skin color also manifests itself, al
criteria into the sole criterion by which to judge whether beit in different form, in those decisions allowing appli
someone was “white.” These two steps immediately di cants to naturalize. Courts ruling for naturalization either
vided the prerequisite courts. Within five years of the Nu- noted the applicant’s light skin color or remained silent as
to physical features. That no judge naturalized a person With some exceptions, students of race pur
identified as having dark skin suggests an unwillingness sued a strategy similar to Keane’s, attempting to fit every
among the courts to find such persons White. This is true known population into one of four metacategories: the “Ne
even of Judge Newman. In Najour, he wrote of the appli gro or Black Division,” the “Mongolic or Yellow Division,”
cant: “He is not particularly dark, and has none of the the “American (Amerind) or Red Division,” or the
characteristics or appearance of the Mongolian race, but, casic or White By the late nineteenth century,
so far as I can see and judge, has the appearance and as European and American colonial expansion brought
characteristics of the Caucasian Similarly, an more and more people into the ambit of Western racial
other federal court admitting several Armenian applicants beliefs, this strategy had provoked a crisis in the science
remarked that they were “white persons in appearance, of race. How would these new groups fit into the extant
not darker in complexion than some persons of northern racial paradigms? For example, the peoples of Oceania are
European descent traceable for among the many population groups of the world, including
holding that color was legally irrelevant to race proved those from western and southern Asia, that did not fit
highly troublesome to the courts considering prerequisite neatly into the existing metatypology of race. Neverthe
cases, both to those deciding upon the application of per less, in order to preserve the underlying categories of
sons perceived as dark-skinned, and, to a lesser degree, to White, Black, Yellow, and Red, Keane and other ethnolo
those finding the petitioners before them to be White. gists were constrained to place them into one or another
Even more troubling for courts hearing prerequisite group. Consider Keane’s solution with respect to Polyne
cases was the strict equation of “Caucasian” and White in sians:
Najour. This linkage eventually became the axis of division
between those courts relying on common knowledge and [Tlhe Maori of New the Tongans, Tahitians, Samoans,
those citing scientific evidence. The significance of a strict Marquesas and Ellis Islanders, and Hawaiians . . . present a
legal congruence between White and “Caucasian” may not most remarkable uniformity in their physical appearance, men
be immediately apparent. This significance, however, is tal qualities, customs, traditions, mythologies, folklore, and reli
intimated by the broad definition of “Caucasian”quoted by gious notions. That they are one people is obvious, and that they
are an Oceanic branch of the Caucasic division is now admitted
Najour from a prominent anthropological text of the times.
by all competent
From A. H. Keane’s The World’sPeople: A Popular Account
of Their Bodily and Mental Characters, Beliefs, Traditions, As Keane’s geographically diverse grouping indicates, the
Political and Social Institutions Judge Newman advent of the twentieth century saw a vast and increasing
cited the following definition: “Caucasians (white and also array of disparate peoples categorized as Caucasian. By
dark), [are indigenous to] North Africa, Europe, Irania, labeling so many people Caucasian, however, raciologists
India, Western Asia and This broad defini had succeeded in expanding this category far beyond the
tion was typical of contemporary raciology. At the turn of popular boundaries of Whiteness.
the century, most typologies divided humans into a handful The Najour court reasoned syllogistically from Cauca
f
of races, although occasionally many more races were sian to “white” to citizen. Doing so, it tied the “white per
*
son” restriction to a rapidly expanding anthropological citizen of the United Judge Smith questioned
classification. Herein lies the significance to the courts of the very use of the term “white person” in the statute,
the strict equation of “white” and “Caucasian.” By making protesting that, as written, “the language of the statute is
persons from North Africa to Oceania “white,” the broad about as open to many constructions as it possibly could
definition of “Caucasian” employed by Judge Newman ar Nevertheless there were some constructions Judge
guably vitiated the restrictive impulse animating the Smith was inclined to reject, most notably the equation
“white person” bar, and thus undercut the prerequisite of White and Caucasian. After some consideration, Judge
laws. If courts accepted that all those categorized as Cau Smith propounded the following definition: “The meaning
casians were “white persons, ” many people generally seen of free white persons is to be such as would have naturally
as non-White would become White, at least for purposes of been given to it when used in the first naturalization act of
citizenship. Nevertheless, within the year, three courts It would not, the court stated, “mean a ‘Cauca
followed the approach pioneered in Najour and relied on sian’ race; a term generally employed only after the date of
expansive scientific definitions of “Caucasian” to admit to the statute and in a most loose and indefinite Nor
citizenship Syrians, Armenians, and Asian Indians as could the term “white person” be equated with other scien
“white tific concepts, for example that of the “Aryan” race, ”one
Other courts, however, did not follow Nujour’s ap still more indefinite than Caucasian,” or that of an “Indo-
proach. Most notably, the federal district court for eastern European” race, “as sometimes ethnologically at the pres
South Carolina heard two cases in rapid succession, and ent day defined as including the present mixed Indo-Euro
in both, the court rejected science generally and the equa pean, Hindu, Malay, and Dravidian inhabitants of East
tion of “white” and “Caucasian” in particular, denying citi India and Scoffing at the notion that very
zenship to the applicants on the basis of common knowl dark brown, almost black, inhabitant of India is entitled to
edge. The first, Shahid, is excerpted in Appendix B. It was rank as a white person, because of a possible or hypotheti
in that case, decided in June 1913, that the court de cal infusion of white blood 30 or 40 centuries Judge
scribed the applicant, Shahid, as being in color Smith insisted that “white persons” would mean “such per
“about that of a walnut.” The court also noted that Shahid sons as were in 1790 known as white In
“writes his name in Arabic, cannot read or write in En rejecting science and in referring to those known as White,
glish, and speaks and understands English very imper the judge in Shahid was rejecting the Whiteness of Hindus,
fectly. . . . His answers to the questions of whether he is a Malays, and, most specifically, of the Syrian applicant then
polygamist or a disbeliever in organized government were before him. Nevertheless, Judge Smith declined to base
in the affirmative, and he could not be made to understand the disposition of the case on Shahid’s supposed racial
in English the purport of the questions Momen ineligibility. Instead, the court denied Shahid citizenship
tarily setting aside the issues raised by Shahid’s limited because of the “personal disqualifications” noted pre
English, the judge, District Judge Smith, turned to the viously, writing that applicant is not one the admis
question of whether Syrian of Asiatic birth and descent sion of whom to citizenship is likely to be for the benefit of
is entitled under the act of Congress to be admitted a the
4 The Prerequisite Cases
Let it be claimed in the argument for the applicant that Christ
Within a year of deciding Shahid, Judge Smith heard and appeared in the form of the Jew and spoke a Semitic language.
decided against naturalization in another case involving a The apostrophic argument that He cannot be supposed to have
Syrian applicant, George However, in an unusual clothed His Divinity in the body of one of a race that an Ameri
judicial move, Judge Smith granted Dow a rehearing, invit can Congress would not admit to citizenship is purely emotional
ing the participation of the Syrian American Associations and without logical sequence. . . . The pertinent statement
of the country, which had objected to the court’s decision rather is that a dark complexioned present inhabitant of what
in Shahid as well as its first holding in Like Shahid, formerly was ancient Phoenicia is not entitled to the inference
George Dow argued that he was entitled to naturalize by that he must be of the race commonly known as the white race
virtue of being a Caucasian, though he also propounded in 1790, merely because 2,000 years ago Judea, a country whose
the additional argument that “the history and position of inhabitants have since changed entirely, was the scene of the
the Syrians, their connection through all times with the labor of one who proclaimed that He had come to save from
spiritual destruction all
peoples to whom the Jewish and Christian peoples owe
their religion, make it inconceivable that the statue could
Judge Smith refused via the rhetorical charge of emotivity
have intended to exclude Though Judge Smith
to engage the question regarding the racial eligibility of
described Dow as being in color “of that tinged or sallow
Christ for citizenship, a very interesting question indeed
appearance which usually accompanies persons of descent
given that in much White supremacist ideology Whiteness
other than purely European,” he also noted that Dow
and Christianity are nearly synonymous. Instead, Judge
“would apparently from his intelligence and degree of in
Smith insisted that the real issue was the eligibility of
formation of a general character be entitled to naturaliza
the “dark complexioned present inhabitant’’ of Syria, thus
tion” if racially Unlike with Shahid, ap
drawing our attention once again to the importance of skin
plication could not be denied on the grounds of personal
color in determining who was White enough to naturalize,
disqualification. The case would be decided squarely on
and more particularly, to the problems posed by the con
the issue of racial eligibility for citizenship.
cept of a Caucasian race not closely tied to complexion.
Judge Smith quickly dismissed the argument that the
Moving away from the theological and historical, Judge
term “white persons” must include Syrians because they
Smith used the opportunity presented in issuing a second
hailed geographically from the birthplace of Judaism and a
opinion in Doze, to expound on his rejection of the scientific
Christianity, suggesting without explanation that argu
definitions of Whiteness. Though he again challenged the
ments of such sort should be addressed to Congress rather
notion of an Aryan or Indo-European race, disparaging
than the With respect to the more particularized
these concepts as, for example, “leading to the manifest
version of that argument, that the denial of White status to
absurdity of classing among whites the black Dravidian
Syrians would be tantamount to the denial of the White
inhabitant of Ceylon or Southern Judge Smith
ness of Jesus Christ, Judge Smith had far more to say.
devoted most of his time to criticizing the idea of a Cauca
Though not directly related to the question of whether
sian race, focusing on the etymology of the term itself as a I
Caucasians qualified as Whites, Judge Smith’s response
way of calling into question its categorical utility. Asking
merits quotation as one of the most intriguing moments in
“What is the white race?” Judge Smith noted that
prerequisite jurisprudence.
I
I The Prerequisite Cases The Prerequisite Cases 77
of the courts in this country that have attempted to deal ment based upon the Syrian being one of a Caucasian race
with the question have referred to the white race as the falls to the
‘Caucasian’ race, and said that a member of the Caucasian But in the wake of the Dow decisions, neither the argu
race was entitled to be naturalized without regard to comment that Syrians were Caucasian nor the notion that
plexion.” 83 Yet, Judge Smith also correctly pointed out “Caucasian”was synonymous with “white persons” did fall
that few agreed as to what peoples were members of the to the ground. Even as Judge Smith sought to define
Caucasian race, and more, that the term “Caucasian” pos Whites by reference to common knowledge, insisting that
sessed highly idiosyncratic origins. In 1781, a German the statute permitted the naturalization only of “people
professor of medicine, Johann Friedrich Blumenbach, pub generally known as other courts continued to
lished a racial scheme of humankind in which he denoted rely on the notion of a Caucasian race to naturalize those
the European peoples as “Caucasians,” a term he coined Judge Smith considered manifestly non-White, for example
on the basis of a single skull in his possession from the the “very dark brown, almost black, of
Caucasus mountains of Russia. In estima If Judge Smith erred regarding immediate fate
tion, this skull strongly resembled the crania of Germans, t of the equation of White and Caucasian, however, he was
i
and so he conjectured that Europeans may have originated more accurate in his characterization of the form taken by
in this mountain Judge Smith rightly found this that equation: “the general inclination would be to con
intellectual pedigree for the popular idea of a Caucasian sider the definition of Caucasian as what is supposed to be
race highly disconcerting. Writing in 19 14, he also found meant by white. This, however, is very loose and indefi
that the concept of a Caucasian race was increasingly ridi nite, for the meaning of Caucasian as at one time prevalent
culed among raciologists. His opinion thus quotes an ex has been now practically exploded. ” 89 Judge Smith here
pert on race who argued that has a single head was correct: the meaning of Caucasian had exploded. What
done more harm to science,” as well as another expert who this explosion would herald, however, was still unknown.
pronounced that the notion of a Caucasian race was an Would it contribute to the demise of racial thinking in law?
“odd myth,” the result of “strange, intellectual hocus Or would the courts follow Judge Smith’s lead and shift
and yet another who warned against crediting this definitions of race entirely onto common knowledge in an
racial category because, among other failings, “it brings effort to save the legal practice of racial categorization?
into one race peoples such as Arabs and Swedes, although These questions would be settled a decade later by the
these were scarcely less different than the Americans and Supreme Court in Ozawa and Thind. Until then, however,
Malays who are set down as two distinct These the cases from Nujour to had set the parameters of
experts were no doubt correct in their criticisms, though the debate between scientific evidence and common
almost certainly in ways they and Judge Smith did not knowledge in terms of whether “white persons” were (1)
fully appreciate. From all of this, however, Judge Smith Caucasians, or (2) those generally known to be White.
concluded the following: there be no such race as the
‘Caucasian race,’ and the term Caucasian be incorrect as
properly describing the white races, then the whole
234 Notes to Chapter 1 Notes to Chapter 2 235
60. Shahid, supra, 205 F. at 814. THOLOGIES: WRITING HISTORY AND THE WEST 990)
6 Thind, supra, 26 1 U.S. at 2 1 1. The holding in Shahid differs from
that in Thind, though in a manner not relevant to the above discussion, The laws defining Whites and Blacks in relation to each other are
in concluding that Whiteness should be defined in terms of common summarized in Paul Finkelman, The Color of Law, 87 NW. U. L. REV.
knowledge as it existed in 1790, rather than as it existed 937, 952-57 and Finkelman, The Crime of Color, supra. See
ously. also Harris, supra, at 1737-41. Several interesting contemporary cases
62. Shahid, supra, 205 F.at 814 (emphasis added). legal definitions of White identity are excerpted in LESLIE
63. F. JAMES DAVIS, WHO IS BLACK? ONE NATION’S ER AND DAAN BRAVEMAN, POWER, PRIVILEGE AND
5 (1991). A CIVIL RIGHTS READER 150-57 For historical
64. Gotanda. supra, at 26. this subject, see generally PAUL MURRAY, STATES’ LAWS
65. Thind, supra, 261 U.S. at 215. E AND COLOR (1950); CHARLES M. MAGNUM, JR., THE
66. Crenshaw, supra, at 1373. L STATUS O F THE NEGRO and GILBERT T.
67. Drawing on a wider range of cases, Neil Gotanda also notes the SON, RACE DISTINCTIONS IN AMERICAN LAW (1910).
close linkage of non-Black minority identities with foreignness. Neil ecent though not specifically legal include DAVIS, supra,
Gotanda, “Other Whites” in American Legal History: A Review d DOMINGUEZ, supra.
Justice at War, 85 COLUM. L. REV. 1186, 1190-92 (1985). 75. David Roediger has recently provided one such study, assessing
68. Ford, Urban Space, supra, at 134 (citation omitted). See also development of White identity among the working class.
JOEL KOVEL, WHITE RACISM: A PSYCHOHISTORY 970). ER, THE WAGES O F WHITENESS, supra. Similarly, Ruth
69. TONI MORRISON, PLAYING IN THE DARK: WHITENESS erg has provided another such study, though focused on the
AND T H E LITERARY IMAGINATION 52 993). ction of race among White women. FRANKENBERG, supra.
70. Flagg, supra, at 957. ALEXANDER BICKEL, THE MORALITY O F CONSENT 53
71. Id. at 1017.
72. Id. at 957 (White identity should be “neither founded on th H.R.J. Res. 129,
implicit acceptance of white racial domination nor productive of dist 78. Proposition 187: Text Law, CALIFORNIA BALLOT
utive effects that systematically advantage whites”); id. at 977-78 MPHLET, GENERAL ELECTION, NOVEMBER 8, 1994, at 91.
development of a positive white racial identity [should]not posit whit
as superior to blacks”).
73. In re Halladjian, 174 F. 834 (C.C.D. Mass. 1909). U.S. COMMISSION ON CIVIL RIGHTS, THE TARNISHED
74. Scholars in many fields have recently begun DEN DOOR: CIVIL RIGHTS ISSUES IN IMMIGRATION
ness. Several recent works stand out. See THEOD
INVENTION O F THE WHITE RACE, VOLUME Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882). Seegenerally
AND SOCIAL CONTROL (history). d Hongju Koh, Bitter Fruit Asian Immigration Cases, 6
BERG, supra (women’s studies); MORRISON, supra (liter ION 69 994). For a sobering account of the many lynchings
DAVID ROEDIGER, TOWARDS THE ABOLITION se in the western United States during this period, see John R.
NESS and THE WAGES O F WHITENESS: RACE AN Anti-Chinese Violence in the American West, 910, LAW
MAKING O F THE AMERICAN WORKING CLASS (la E ELEPHANT, LAW FOR THE BEAVER: ESSAYS IN THE
tory); ALEXANDER THE RISE AND FALL O F HISTORY O F THE NORTH AMERICAN WEST 2 12 (John
WHITE REPUBLIC: CLASS POLITICS AND MASS CULTUR , Foster, and Chet Orloffeds., 1992).Charles McClain,
NINETEENTH-CENTURY AMERICA (history); V the historical origins of anti-Chinese prejudice and the
WARE, BEYOND THE PALE: WHITE WOMEN, RACISM AND responses undertaken by that community on the West Coast.
TORY (1992) (historiography); and ROBERT YOUNG, WHITE The Chinese Strugglefor Civil Rights in Nineteenth
Century America: The First Phase, 72 CAL. L. REV. 529 13. CHARLES GORDON AND STANLEY MAILMAN, IMMI
984). For a discussion of contemporary racial violence against Asian GRATION LAW AND PROCEDURE (rev. ed. 1992).
Americans, see Note, Racial Violence against Asian Americans, 106 14. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 For an
HARV. L. REV. 1926 (1993); Robert Chang. Toward an Asian American insightful discussion of the role of Dred Scott in the development of
Legal Scholarship: Critical Race Theory, Post-Structuralism, and American citizenship, see JAMES THE DEVELOPMENT
81 CAL. L. REV. 1241, 1251-58 O F AMERICAN CITIZENSHIP, 1608-1870, at 300-333 (1978); see
3. Act of July 9, 1884, ch. 220, 23 Stat. 115; Act of May 5, 1892, ch. KENNETH L. KARST, BELONGING TO AMERICA: EQUAL
60, 27 Stat. 25; Act of April 29, 1902, ch. 641, 32 Stat. 176; Act of CITIZENSHIP AND T H E CONSTITUTION 43-61 ( 1 989).
April 27, 1904, ch. 1630, 33 Stat. 428. 15. Civil Rights Act of 1866, ch. 31, 14 Stat. 27.
4. 5, 1917, ch. 29, 874. 16. U.S. Const. amend. XIV.
U.S. COMMISSION ON CIVIL RIGHTS, supra, at 9. 17. 169 U.S. 649 (1898).
6. Id. See Act of May 19, 1921, ch. 8, 42 Stat. 5; Act of May 26, 18. 112 U.S. 94 (1884).
1924, ch. 190, 43 Stat. 153. 19. Act of June 2, 1924, ch. 233, 43 Stat. 253.
7. U.S. COMMISSION ON CIVIL RIGHTS, supra, at 10. 20. Nationality Act of 1940, 54 Stat. 1138. See generally
8. Id, a t 1 1 . See generally JUAN RAMON GARCIA, OPERATION GORDON AND MAILMAN, supra, a t
WETBACK: THE MASS DEPORTATION O F MEXICAN UNDOCU 21. Pete Wilson, Crack Down on USA TODAY, Aug. 20,
MENTED WORKERS IN 1954 1993, at 12A.
9. Act of Oct. 2, 1965, 79 Stat. 91 1. 22. H.R.J. Res. 129, 103d Cong., 1st Sess. An earlier,
10. Chan Ping v. United States, 130 U.S. 581 (1889). The scholarly call to revamp the Fourteenth Amendment can be found in
Court reasoned in part that if “the government of the United States, PETER SCHUCK and ROGER SMITH, CITIZENSHIP WITHOUT
through its legislative department, considers the presence of foreigners CONSENT: ILLEGAL ALIENS IN THE AMERICAN POLITY
of a different race in this country, who will not assimilate with us, to be
dangerous to its peace and security, their exclusion is not to be stayed.” 23. Koh, supra, at 69-70.
For a critique of this deplorable result, see Louis The Constitu 24. Bill Ong Hing, Beyond the Rhetoric of Assimilation and Cultural
tion and United States Sovereignty: A Century of Chinese Exclusion and Pluralism: Addressing the Tension of Separatism and Conflictin an
Its Progeny, 100 HARV. L. REV. 853 Multiracial Society, 81 CAL. L. REV. 863, 866 (1993).
1 . For efforts to encourage Irish immigration, see, Immigration 25. Gerald Neuman warns against amending the Citizenship Clause.
Act of 1990, 131, 104 Stat. 4978 (codified as amended a t 8 U.S.C. Gerald Neuman, Back to Dred Scott? 24 SAN L. REV. 485,
Bill Ong Hing argues that Congress continues See also Note, The Birthright Citizenship Amendment: A
discriminate against Asians. “Through an examination of past e Threat to Equality, 107 HARV. L. REV. 1026 (1994).
laws, previous legislation, and the specific provisions of the I 26. U.S. Const. art. I, 8, 4.
Act of 1990, the conclusion can be drawn that Congress nev 27. Act 26, 1790, ch. 3, 1 Stat. 103.
intended to make up for nearly 80 years of Asian exclusion, and t KETTNER, supra, at 2 15-16.
conscious hostility towards persons of Asian descent continues to 29. One exception exists. In undertaken in 1870, the
vade Congressional circles.” Bill Hing, Asian Americans and hite person” limitation was omitted. However, this omission is
U.S. Immigration Policies: A Legacy of Asian Exclusion, ed as accidental, and the prerequisite was reinserted in 1875 by
AMERICANS AND THE SUPREME COURT: A DOCUME act to correct errors and to supply omissions in the Revised Statutes
HISTORY 1106, 1107 (Hyung-Chan Kim ed., 1992). the United States.” Act of Feb. 18, 1875, ch. 80, 18 Stat. 318. See In
12. Louis and Harry Pachon, Making Americans: Ad h 1 223 1878) (“Upon revision of the
Discretion and Americanization, 12 CHICANO-LATINO L. the revisors, probably inadvertently, as Congress did not
52, 53 (1992). e a change of the laws in force, omitted the words ‘white persons.”’).
30. Statement of Senator Hendricks, 59 CONG. GLOBE, 42nd 44. Immigration and Nationality Act of 1952, ch. 2, 31 1, 66 Stat
Cong., 1st Sess. 2939 (1866). See also John Guendelsberger, Access to 239 (codified as amended at 8 U.S.C. 1422
Citizenship for Children Born Within the State to Foreign Parents, 40 AM. 45. Arguably, the continued substantial exclusion of Asians from
J. COMP. L. 379,407- 9 (1992). immigration, not remedied until 1965, rendered their eligibility for nat
31. Statement of Senator 57 CONG. GLOBE, 42nd Cong., uralization relatively meaningless. national quota system for ad
1 Sess. 499 (1866). For a discussion of the role of anti-Asian prejudice mitting immigrants which was built into the 1952 Act gave the grant of
in the laws governing naturalization, see generally Elizabeth Hull, Natu eligibility a hollow ring.” Chin Kim and Bok Lim Kim, Asian Immigrants
ralization and Denaturalization, ASIAN AMERICANS AND THE SU in American Law: A Look at the Past and the Challenge Which Remains,
PREME COURT: A DOCUMENTARY HISTORY 403 (Hyung-Chan 26 AM. U. L. REV. 373, 390 (1977).
Kim ed., 1992) 46. See generally Ursula Vogel, Is Citizenship Gender-Specific? THE
32. The Senate rejected an amendment that would have allowed FRONTIERS O F CITIZENSHIP 58 (Ursula Vogel and Michael Moran
Chinese persons to naturalize. The proposed amendment read: “That eds., 1991).
the naturalization laws are hereby extended to aliens of African nativ 47. Act of Feb. 10, 1855, ch. 71, 2, 10 Stat. 604. Because
ity, and to persons of African descent, and to persons born in the Chi based laws in the area of citizenship were motivated by the idea that a
nese empire.” BILL ONG HING, MAKING AND REMAKING ASIAN woman’s citizenship should follow that of her husband, no naturaliza
AMERICA THROUGH IMMIGRATION POLICY, 1850-1990, at 239 tion law has explicitly targeted unmarried women. GORDON AND
n.34 (1993). MAILMAN, supra, at (“An unmarried woman has never been
33. Act of July 14, 1870, ch. 255, 7, 16 Stat. 254. [statutorily] barred from naturalization.”).
34. Chinese Exclusion Act, ch. 126, 14, 22 Stat. 58 (1882). 48. PRENTISS WEBSTER, LAW OF NATURALIZATION IN
35. Fong Ting v. United States, 149 U.S. 698, 716 THE UNITED STATES O F AMERICA AND OTHER COUNTRIES
36. Neil Gotanda contends that separate racial ideologies function 80
with respect to “other non-Whites,” meaning non-Black racial minorit 49. Act 10, 1855, ch. 71, 2, 10 Stat. 604.
ies such as Asians, Native Americans, and Latinos. Neil Gotanda, 50. Kelly v. Owen, 74 U.S. 496, 498
“Other in American Legal History: A Review of Justice at 5 1. GORDON AND MAILMAN, supra at
War, 85 COLUM. L. REV. 1186 Gotanda explicitly identifies 52. Act 22, 1922, ch. 41 1, 2, 42 Stat. 1021.
the operation of this separate ideology in the Supreme Court’s jurispru 53. GORDON AND MAILMAN, supra at §
dence regarding Asians and citizenship. Neil Gotanda, Asian American 54. Act of March 2, 1907, ch. 2534, 3, 34 Stat. 1228. This act was
Rights and the “Miss Saigon Syndrome, ASIAN AMERICANS AND
”
upheld in v. Hare, 239 U.S. 299 a
THE SUPREME COURT: A DOCUMENTARY HISTORY 1087, born woman upon her marriage to a British citizen). .
1096-97 (Hyung-Chan Kim ed., 55. Act 22, 1922, ch. 41 1, 3, 42 Stat. 1021.
37. Charles Gordon, The Racial Barrier to American Citizenship, 93 56. Id. The Act also stated that woman whose husband is not
U. PA. L. REV. 237, 252 eligible to citizenship shall be naturalized during the continuance of
38. MILTON KONVITZ, THE ALIEN AND THE ASIATIC IN the marriage.”
AMERICAN LAW 80-8 1 (1946) (citation omitted). 57. Act of March 3, 1931, ch. 442, 46 Stat. 151 1.
39. Act of Oct. 14, 1940, ch. 876, 303, 54 Stat. 1140. 58. The loss of birthright citizenship was particularly harsh for
40. Note, The Nationality Act of 1940, 54 HARV. L. REV. 860, 865 those women whose race made them unable to regain citizenship
n.40 through naturalization, especially after 1924, when the immigration
41. Act of 17, 1943, ch. 344, 3, 57 Stat. 600. laws of this country barred entry any alien i neligible citizenship.
42. Act of July 2, 1946, ch. 534, 60 Stat. 416. Immigration Act of 1924, ch. 190, 43 Stat. 162. See, Ex
43. Id. parte Fung Sing, 6 670 . 1925). In that case, a
but instead concerns the ability of a person racially barred from citizen
U.S. birthright citizen of Chinese descent was expatriated because of
her marriage to a Chinese citizen, and was subsequently refused admit ship to own land under state law. Statutes barring aliens racially ineligi
tance to the United States as an alien ineligible to citizenship. ble for naturalization from owning land, referred to collectively as alien
land laws, are discussed in chapter 6. Note that one legal scholar cites
Notes to Chapter the quoted passage to support his contention that racial barriers to natu
1. In re Ah Yup, 1 223 1878). ralization were "not without foundation in reason." George Gold, The Ra
cial Prerequisite in Naturalization Law, 15 B.U. L. REV. 462 (1935).
2. The only reported case in which a petitioner sought to naturalize
as a person of African nativity came in 1938. In re Cruz, 23 16. AUDREY SMEDLEY, RACE IN NORTH AMERICA: ORIGIN
AND EVOLUTION O F A WORLDVIEW 280 (1993).
774 (E.D.N.Y. 1938). The court held that persons one-quarter African
and three-quarters Native American are not eligible to citizenship as a 17. In re Po, 28 N.Y. 383, 384 (City Ct. 1894).
person of "African descent." 18. Id.
3. JAMES KETTNER, THE DEVELOPMENT O F AMERICAN 19. In re Camille, 6 F. 256, 258 1880).
20. Ex parte Shahid, 205 F. 812, 815 (E.D.S.C. 1913).
CITIZENSHIP, 1608-1870, at 343
2 1. Thomas Ross, The Rhetorical Tapestry of Race: White Innocence
4. Chin Kim and Bok Lim Kim, Asian Immigrants in American Law:
and Black Abstraction, 32 WM MARY L. REV. 1 Ross's thesis
A Look at the Past and the Challenge WhichRemains, 26 AM. U. L. REV.
is that little has changed: he argues that "the rhetorical themes of the
373, 380 (1977).
nineteenth-century cases on race are still the essential themes of our
5. RONALD TAKAKI, IRON CAGES: RACE AND CULTURE IN
contemporary legal rhetoric of race." Id. at 7.
19TH CENTURY AMERICA 101 (1990). See also GARY OKIHIRO,
22. Randall Kennedy, Race Relations Law and the Tradition of Cele
MARGINS AND MAINSTREAMS: ASIANS IN AMERICAN HIS
bration: The of Professor Schmidt, 86 COLUM. L. REV. 1622
TORY AND CULTURE 31-63 994); Dan Caldwell, The
(1986).
of the Chinese Stereotype in California, 53 SO. CAL. Q. 123 (June 197
23. Id.
6. People v. Hall, 4 Cal. 399
7. Id. at 400-402. 24. Charles Gordon, The Racial Barrier to American Citizenship, 93
8. Rice v. Gong Lum, 139 Miss. 760, 104 So. 105 discussed
U. PA. L. REV. 237, 246 (1945).
25. See generally Peter Fitzpatrick, Racism and the Innocence of Law,
in Stanford Lyman, The Race Question and Liberalism: Casuistries in
ANATOMY O F RACISM 247 (David ed., 1990).
American Constitutional Law, 5 INT'L J. POL., CULTURE, AND
26. In re Knight, 171 F. 299,300 (E.D.N.Y. 1909).
SOC. 183, 206
27. Id.
9. See, Gilbert Stephenson, Race Distinctions in American Law,
43 AM. L. REV. 29, 37-46 (1909) (addressing "What is a Negro?"); 28. Id. at 301.
29. In re Gee Hop, 71 F. 274 1895).
see generally F. JAMES DAVIS, WHO IS BLACK? ONE NATION'S
DEFINITION (1991). Of course, as I argue in chapter 6, the legal 30. Id. at 275.
31. Id.
definitions of Black identity in the slave codes and the Jim Crow laws
32. See, In re Kumagai, 163 F. 922, 923
served at least by default to define who was White.
1908). The court wrote:
10. See generally STANLEY LIEBERSON, A PIECE OF THE
BLACKS AND WHITE IMMIGRANTS SINCE 1880 (1 This applicant for naturalization is an educated Japanese gentleman,
11. A h supra, 1 at and, in support of his petition to be admitted to citizenship, he presents
12. Id. at 223. certificate showing that at the expiration of a term for which he
13. Id. ted as a soldier in the regular army of the United States he was
14. Id. at 224. discharged. There appears to be no objection to his
15. Terrace v. Thompson, 274 F. 841, 849 on personal grounds, and the court has given no consideration to
y questions which might be raised of a formal character: the intention
263 U.S. 197 (1923). Terrace is not directly a racial prerequisite
of the court being to rest its decision denying the application on the and evidence rationales in
single ground that Congress has not extended to Japanese people not greater length in chapter 1.
the privilege of becoming adopted 43. Id. at 223-24.
of this country. 44. Id. at
supra, 6 F. 256. Camille moved the Yen Chang, supra, 84 at 164.
States in 1847 at age seventeen, and was denied naturalization in 1880 supra, 1 at 223.
when he was fifty years old, after having lived in the country for thirty- VAN DYNE, A TREATISE ON
three years. O F THE UNITED STATES 42
34. See, In re Hong Yen Chang, 84 Cal. 163, 165 (1890). The 62 F. 126, 127 1894).
court held that the certificate of naturalization and license to practice
law issued by New York courts to Hong Yen Chang were “issued See VAN DYNE, supra, at
out authority of law, and . . . void” in California because the holder was 174 F. 735
nativity.” See also In re Yamashita, 1909); In re
234, 236 (1902). The court denied Yamashita’s application to practice In re Ellis, 179 F. 1003 v.
order admitting him citizenship was 226 145 (4th 1915);
subject to attack at any time and 486 (E.D.S.C. 1914); In re
because he was of the “Japanese race.” (E.D.S.C. 1914).
In re Rodriguez, 81 F. 337, United States Dolla, 177 F. 101
the admission of Rodriguez to citizenship, 694 (2nd 1910); In
Mexicans in the Southwest suffered considerable legal repression in the 1913); In re
U.S. conquest of that region. See In re Thind, 268 F. 683
AMERICA: A HISTORY O F CHICANOS 1909); In re
ed. 1988).The history of legal resistance to such repression is examined 1917); United States v.
Indeterminacy, Judicial Discretion and the
Experience: 1930-1 980, 27 174 Najour is not
REV. favor of an applicant for
37. subsequently drew into question the did as well. However, the court in
v. California, 291 despite concluding that the Asian was
“Whether a person of descent be Balsara, supra, 17 1 294. The
is still an unsettled question. The subject the applicant despite concluding
Rodriguez, but not all that was there Rodriguez, supra, 81 F. 337.
decisions of this court.” For a commentator’s Id. (citation omitted).
grounds that Mexicans are not “white supra, 174 F. 735; Mudarri, supra,
see Gold, supra, at States Balsara, supra, 180 F. 694.
38. John Wigmore, American Naturalization and the Japanese, 28 Wash. 1912);
AM. L. REV. 8 18 . supra, 2 1 1 F. 486; In re 355.
39. Id. at 827. 58. Shahid, supra, 205 F. at
40. Id. 59. Parte Dow, supra, 2 F. at 487.
41. Chinese and Japanese Immigrants-A 60. supra, 174 F. at 735.
34 ANNALS O F AM. ACAD. 223,224 Halladjian, supra, 174 F. at 835.
42. Ah Yup, supra, 1 at 223. The appearance of supra, 174 F. at 735 (quoting A. H.
I
WORLDS PEOPLE: A POPULAR ACCOUNT OF THEIR BODILY

of Race: The Open Door, Ozawa and the Case of Japanese in America, 17
REV. RADICAL POL. ECON. 135 Raymond Leslie
AND MENTAL CHARACTERS, BELIEFS, TRADITIONS, POLITI
CAL AND SOCIAL INSTITUTIONS 5 Some Legal Aspects of the Japanese Question, 17 AM. J. INT’L. L. 29
63. THOMAS GOSSETT, RACE: THE HISTORY O F AN IDEA IN 923).
3. Ichioka, supra, at 12.
NORTH AMERICA 82
64. KEANE, supra, at 13-26, passim. 4. Quoted in id. at 11.
65. Id. at416-17. 5. Id.
66. supra, 176 F. 465 (Syrians are White); Halladjian, su 6. Ozawa, supra, 260 U.S. at 198.
pra, 174 F. 834 (Armenians are White); and United States Balsara, 7. Ichioka, supra, at 9-17.
supra, 180 F. 694 (Asian Indians are White). 8. Ozawa, supra, 260 U.S. at 184.
67. Shahid, supra, 205 F. at 812-13. 9. Brief for Petitioner at 55, 57, 7 Takao Ozawa vs. United States,
68. Id. at 813. 260 U.S. 178 (1922).
69. Id. 10. Ozawa, supra, 260 U.S. at 197.
70. Id. at 814. 11. THOMAS GOSSETT, RACE: THE HISTORY OF AN IDEA IN
71. Id. NORTH AMERICA 69 963) (citation omitted).
72. Id. 12. Ozawa, supra, 260 U.S. at 197.
73. Id. at 815. 13. GOSSETT, supra, at 65-83.
74. Id. at 814. 14. Id. at 69.
75. Id. at 817. 15. Ozawa, supra, 260 U.S. at 189 (citations omitted).
76. E x parte Dow, supra, 2 11 F. 486. 16. But see John Wigmore, American Naturalization and the -
77. In re Dow, supra, 213 F. 355. 28 AM. L. REV. 818 (1894) (articulating the ethnological argument
78. Id. at 357. that the Japanese are Caucasian).
79. Ex parte Dow, supra, 2 11 F. at 486-87. 17. Ozawa, supra, 260 U.S. at 198.
80. I n re 2 13 F. at 363-64.
81. Id. at 364. 19. Ichioka, supra, at 17.
82. Id. at 358.
83. Id. . YUJI ICHIOKA, THE ISSEI: THE WORLD O F THE FIRST
84. GOSSETT, supra, at 37-39. JAPANESE IMMIGRANTS, 1885-1924, at 1-2
85. I n re Dow, supra, 2 13 F. at (reference omitted).
86. Id. at 360. 2. See James Lesser, Always “Outsiders”:Asians, Naturalization,
87. E x Dow, supra, 2 11 F. at 489. the Supreme Court, 12 AMERASIA 83 (the prerequisite
supra, 205 at 815. See, “had the effect of defining Asian immigrants as perpetual
Singh, supra, 257 aliens ineligible for citizenship”).
268 F. 683. United States v. Thind, 261 U.S. 204 Seegenerally JOAN
In re supra, S E N , PASSAGE FROM INDIA: ASIAN INDIAN IMMIGRANTS
ORTH AMERICA 246-69 (1988).
Notes to Chapter . In re Thind, 268 F. 683 1920).
25. RONALD TAKAKI, STRANGERS FROM A DIFFERENT
in original). E: A HISTORY O F ASIAN AMERICANS 294 (1989);
generally Ichioka,
Citizenship: The Background . I n re Thind, supra, 268 F. 683.
C. Yamashita and . Id. at 684 (citing In re Mohan Singh, 257 F. 209

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