The duality of federalist nation-building: two strains of Chinese immigration cases revisited.

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The duality of federalist nation-building: two strains of Chinese immigration cases revisited.

I. INTRODUCTION

The terrorist attacks on September 11, 2001 rekindled the national debate on the status of non-citizen immigrants in the United States. (1) While the ostensible cause of this debate--a massive atrocity committed by non-U.S. citizens--is new, its substance is not. (2) Over a century ago, two cases involving the constitutional status of Chinese immigrants in the United States marked the beginning of the modern constitutional debate over immigration. (3) Yick Wo v. Hopkins and Chae Chan Ping v. United States, also known as the Chinese Exclusion Case, each influenced subsequent constitutional developments, although the decisions in these cases were starkly divergent. (4) In the 1886 decision Yick Wo v. Hopkins, the Supreme Court unanimously decided to uphold the equal protection claims of two non-citizen Chinese immigrants. The immigrants were arrested for operating laundries without obtaining special consent, despite the prevalence of non-Chinese laundry operators who conducted their businesses in the same manner. (5) Three years later, the Court also unanimously decided the Chinese Exclusion Case. Despite the structural similarity and chronological proximity to Yick Wo, however, the substantive result of the Chinese Exclusion Case was in stark contrast to its predecessor. (6) In the Chinese Exclusion Case, the Court affirmed the inherent power of Congress to exclude a non-citizen Chinese immigrant from reentering the United States. (7) In the earlier case, the non-citizen plaintiffs were treated as equal to American citizens, while in the later the Chinese plaintiff was seen as nothing but a pariah, completely subject to the sovereign power of the United States. The focus of this article is how these two cases, so similar on the surface, resulted in such different outcomes. In response to this quandary, the course of nation-building in the United States and its connection to American constitutional law will be examined. (8)

This is certainly not the first analysis of the relationship between Yick Wo and the Chinese Exclusion Case, nor the first observation of the significance of these cases in the course of American nation-building. (9) Nevertheless, as of yet no such analysis has produced a comprehensive picture. (10) Some scholarship has been devoted to explaining Yick Wo's role in the development of substantive due process and equal protection for resident aliens. (11) By comparison, scholarly analysis of the Chinese Exclusion Case and its progeny has focused on major immigration law and foreign affairs topics such as national security, national independence and Congress's near absolute authority over immigration matters. (12) Independently, the two types of "Chinese immigration cases" have been fully explored and have made significant contributions to fundamental rights, equal protection and foreign affairs jurisprudence.

This article seeks to achieve a comprehensive reading and reconciliation of the two strands of "Chinese immigration cases". This new perspective can enhance our understanding of both American constitutional development in the 1880s and the notion of nation-building. (13) The duality of federalist nation-building provides the cornerstone for this comprehensive overview of Yick Wo and the Chinese Exclusion Case. The Yick Wo decision emerged from the internal dimension of a federalist nation-building era in which the federal government tried to hold its member states at bay. The Chinese Exclusion Case, however, expresses both the internal and external dimensions of this nation-building process through its emphasis on national sovereignty.

While Part I of this article briefly summarized the current tendency to separate the analysis of these landmark cases, Part II describes the inadequacy of the traditional dichotomous accounts of Yick Wo and the Chinese Exclusion Case. From the perspective of constitutional development, these accounts include three defects: academic irresponsibility, insufficiency, and complete discontinuity. Therefore, a proper analysis requires an approach from a nation-building perspective.

Part III discusses the course of American nation-building during the 1880s as well as the two-dimensional national buildup of that period. When viewed against the backdrop of American nation-building in the 1880s, Yick Wo can be interpreted as a deployment of federal judicial sovereignty. (14) In the same context, the Chinese Exclusion Case epitomizes the soaring drive for nation-state sovereignty in the late 19th century. (15) Both demonstrate the trend--popular at the time the cases were decided--of attempting to strengthen the national image of the United States at home and abroad.

II. THE INADEQUACY OF THE DICHOTOMY TENDENCY

Current legal literature tends to deal with Yick Wo and the Chinese Exclusion Case separately, a trend that shall be referred to as "the dichotomy tendency." (16) Irrespective of the nuanced differences in the various dichotomy...

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