On May 6, 1882, 135 years ago, the United States made its first attempt to ban an entire group from entry into our country. The effort was clearly discriminatory, as the title of the legislation itself shouted out racism, but also a headache for the court system that eventually washed its hands and abandoned those oppressed by the law to the discretion of executive branch officials. Although much has been written about this effort and its aftermath, this article provides a brief glimpse into the difficulty of distinguishing one group of immigrants from another in a land of immigrants. If history is a teacher, the effort in these pages remind us of the extreme hazards of such an attempt.
Gazing upon the welcoming words of the Statue of Liberty, asking the world to send to the United States their “huddled masses,” suggests that concerns and complaints about immigration are of recent origin. Our history makes it clear that, in addition to wiping out the native population that already resided on the American continent, European immigrants to the United States were concerned about other people coming here and upsetting what they had begun. Even before the United States became a country, with clear borders, immigration and its perceived dangers were an issue for people feeling that their established way of life was being threatened. Founding father Benjamin Franklin expressed concern with the influx of “aliens” 25 years before he affixed his signature to “all men are created equal.” Concerned with German immigrants, he warned in 1751,
Why should Pennsylvania, founded by the English, become a Colony of Aliens, who will shortly be so numerous as to Germanize us instead of us Anglifying them, and will never adopt our Language or Customs, any more than they can acquire our Complexion.1
The country’s first real contested presidential election centered on the treatment of immigrants seeking citizenship and free speech. We all remember reading about the Alien and Sedition Acts in school.2 These studies mostly centered on the Sedition, and not the Alien, Acts. In 1798, however, the Federalist-controlled Congress was concerned that most immigrants who came into the country tended to vote for their political rival, the Democrat-Republican Party, once they became citizens. Therefore, to make sure the Federalists won the next election and to have a long run in control of the Congress and presidency, Congress passed the Alien and Sedition Acts to restrict free speech and to require an immigrant to be a resident of the United States for eight years instead of four, as the law then stated, in order to become a citizen. Adding even more control over who would be able to vote, part of the Alien Act provided that if the president felt an Alien was a threat to the safety of the country, he could summarily deport him. If an effort was made to re-enter the country, the alien could be imprisoned for an indeterminate time. Of course, the Federalists thought they would only need these laws until after the next presidential election, and they did not want to have the law hinder them if they somehow lost that election, so the Alien and Sedition Acts contained a self-ending clause of 1800 unless the Congress acted to extend them. These laws provided incredible ammunition to Thomas Jefferson and the Democrat-Republicans, and they swept to congressional and presidential victory in 1800. They then allowed the Sedition Act and the part of the Alien Acts regarding citizenship to expire. Instead of allowing a part of the legislation entitled the Alien Enemies Act to expire, they extended that Act given concerns they shared with the Federalists that infiltration of British and French immigrants could lead the country into war. This gave the president the right to limit entry and deport those from hostile nations. This law has been revised over the years, but its core still exists today and was cited by President Donald Trump as an authorization for his efforts to restrict immigration.
Franklin’s comments were social commentary and not legal requirements. The Alien and Sedition Acts, although congressional legislation, were before the establishment of judicial review and thus the courts were not involved in rendering opinions on the legality or constitutionality of the Acts. It was not until an entire race was banned from America’s shores that the courts would become actively involved in immigration issues.
The Chinese Exclusion Act of 1882 was the first major law restricting a certain group’s immigration into the United States. It attempted to limit this to Chinese “laborers,” but government officials and courts found this term extremely difficult to define.
After years of court battles, mostly won by petitioners on habeas corpus grounds, the courts decided to turn this difficult issue over to the discretion of government bureaucrats. The history of this rather interesting episode in American history helped establish the stage for later actions, still continuing today, that attempt to limit or totally preclude specific groups of immigrants from entering the United States.
In the 1840s, it was easier to travel from China to San Francisco than from Missouri to San Francisco. The former required one to endure the dangers of sea passage, but the latter had a multitude of dangers to overcome from weather and terrain, including snowy mountains and arid desserts, to hostile Native Americans upset with those crossing their lands. Thus, when gold was discovered in California, Chinese came to work as much desired laborers in the mines. As tracks for railroads became needed, Chinese immigrants provided the labor at a very cheap price. Officials and businesspeople welcomed the Chinese and predicted a rosy future for the new “Americans.” California Governor John McDougall referred to Chinese immigrants in 1852 as the “most desirable of our adopted citizens.”3
That same year, however, more people of European descent began arriving, and within 10 years, the Chinese were seen as indulging in cheap labor and taking jobs away from so-called “native” Americans. And other concerns—including questions about morality and loyalty—were expressed about the desirability of Chinese immigrants. In 1862, California Governor Leland Stanford declared, in words that echo today, that “Asia, with her numberless millions, sends to our shores the dregs of her population.” In that same proclamation, he added that “[t]o my mind, it is clear that the settlement among us of an inferior race is to be discouraged by every legitimate means.”4
For two decades, California tried to prohibit or limit Chinese immigration, but each effort was stricken down by the courts citing California’s Constitution that required that all people regardless of race be treated the same. Although national labor organizations and other groups got involved to clamor for federal action against Chinese immigration, Congress was restricted by the Burlingame Treaty of 1868 with China that promised free migration for each country. By 1876, Chinese immigrants had gradually traveled east, and Atlantic Coast states joined the called for action limiting admission. As a result, Congress formed a Joint Special Committee to Investigate Chinese Immigration. The committee report a year later not only asserted the danger of job loss caused by the immigrants but proclaimed the “racial inferiority of the Chinese.” It further noted that the people of the Pacific Coast viewed the growing influx of Chinese as a “menace to republican institutions . . . and the existence there of Christian civilization.”5 The United States immediately began negotiations to modify the Burlingame Treaty. In 1880, a new treaty was signed that prohibited either country from banning immigration from the other, but allowed the United States to “regulate, limit or suspend” Chinese immigration as long as the suspension did not endure longer than 10 years. With this green light, Congress began drafting legislation. By 1880, Congress passed a bill to ban Chinese immigration for 20 years. The White House signaled it was not opposed to the basic terms of the legislation but vetoed it because it went beyond the 10-year limit set out in the Treaty. Congress then revised and passed the bill limiting the term to 10 years, and the Chinese Exclusion Act of 1882 was signed into law on May 6, 1882, by President Chester A. Arthur. In 1892, the Act was extended for an additional 10 years and was made indefinite (the 10-year limitation being ignored) in 1902.
What the late nineteenth century Congress envisioned as a simple bill to preserve American values and protect American workers against a race it feared threatened American institutions and took away jobs from citizens immediately became a frequent target of court action. The first issue was defining the term “laborer” because the law excluded Chinese “laborers, skilled or unskilled.” How does one define “laborer”? The Act did not do so. The enforcement of the law was initially put in the hands of customs officials who were used to determining the amount of tariff due on items but not determining who was or was not a laborer. As Law and Criminology Professor Kitty Calavita asserted in a very thorough review of the Chinese Exclusion Act of 1882, the attempts to enforce this law highlight the indeterminacy in law which demands a wide role of the judiciary in interpretation and implementation.6 How does one determine if the law is being violated? Is the statute too vague and thus unconstitutional, or can officials enforce the law with clarity? Customs officials struggled mightily in determining who was and who was not a laborer. At one time, the question of whether a doctor fell into the labor category was debated. The paradox of enforcement grew with every case. The courts finally listed non-laborers as merchants and temporary travelers. That controlled for a time until the question arose as to whether a merchant loading goods becomes a laborer. It is clear from the cases that the courts were doing all they could to uphold the law and yet be fair to Chinese immigrants. Indeed, although the U.S. Supreme Court upheld the law in the case of Chae Chan Ping v. United States,7 most cases brought before the courts resulted in a win for the party challenging application of the Act.
Over the years, other problems of determinacy arose. What about a woman accompanying a Chinese immigrant? Is she a laborer or is she a traveler? The court ultimately decided that a woman takes on the classification of her husband. That did not answer the question of a single woman. The court took up questions like the classification of a student, a scientist, a teacher, and others. What about those leaving the United States and then wanting to return? The courts established standards for fairness that sometimes were followed and sometimes not. Customs officials, and later immigration officials after the establishment of that agency, continued to struggle with determinacy.8
In 1905, the Court determined that it was too difficult to determine the application of this Act and decided to wash its hands of this confusing and murky effort to exclude Chinese from entering this country. In United States v. Ju Toy,9 the U.S. Supreme Court decided that a person of Chinese parentage who may even be a U.S. citizen may be excluded from entry into the country without a judicial proceeding because these determinations are best left up to immigration officials.
Thus, by this decision, the judiciary virtually withdrew from resolving the application issues and the pleas of Chinese immigrants seeking to challenge the law went unanswered. In was not until the focus of the nation was on another perceived threat of people from Asia, the Japanese, upon the onset of World War II, that the Chinese Exclusion Act was repealed. As it was repealed, Japanese Americans were being transported to internment camps across America to be held, without any judicial remedy, based on their national background and race. There is a major difference in the legacy of these two actions singling out one race for discrimination. In the 1980s, the United States formally apologized to the Japanese for that wrongful action. To this day, although a few states have formally recognized this injustice, no national apology has been rendered to the Chinese Americans who mined the gold, built the railroads, and performed many other tasks over long hours for low wages that strengthened the United States, only to see their race excluded from its shores in the form of the Chinese Exclusion Act of 1882.
1. Benjamin Franklin, Observations Concerning the Increase of Mankind, 1751.
2. Sess II, Chap. 58, 1 Stat. 577, 5th Congress, ch. 66, 25 June 1798.
3. See J. Thomas Scharf, “The Farce of the Chinese Exclusion Act,” The North American Review, Vol 66, No. 494 (Jan. 1898) pp. 85–97.
4. Ibid., p. 86.
5. Congressional Record, 44th Congress, 1877, p.2005.
6. Kitty Calavita, “The Paradoxes of Race, Class, Identity and ‘Passing’: Enforcing the Chinese Exclusion Acts, 1882-1910,” Law and Social Inquiry, Vol. 25, No. 1 (Winter 2000), pp. 1–40. Published by the American Bar Foundation. This article lists the cites to all the major cases that occurred all the way up to its repeal in 1943.
7. 130 U.S. 581 (1889).
8. President Theodore Roosevelt even requested that officials be nicer to those Chinese immigrants coming in at ports because of protests from the Chinese government and its threat to boycott American goods.
9. 198 U.S. 253 (1905).