DIASPORIC DREAMS: LAW, WHITENESS, AND THE ASIAN AMERICAN IDENTITY.

• Author: Loh, Nicholas

Introduction 1331 I. Historical Artifacts--Anti-Asian Animus 1335 A. Exclusion and Litigating Whiteness 1335 B. Alien Land Laws and Internment 1341 II. Assimilation, Covering, and Honorary Whiteness 1345 A. Assimilation and the Model Minority Myth 1346 B. Covering 1348 C. The Choice for a New Generation of Assimilated Asian Americans 1351 III. Will Covering Fully Address the Discrimination Asian Americans Face? 1352 A. More Effective Covering and Assimilation 1353 B. Racial Solidarity - "We Will Not Be Used" 1355 IV. A Different Path Must Be Possible 1357 Conclusion 1360 INTRODUCTION

I am the son and grandson of courageous immigrants who left home and created a new life in the United States. Though my family came to the United States for myriad reasons, one driving factor was the search for a stable economic and political environment. Their lives had seen great political upheaval and societal change--following the fall of the last Chinese dynasty, my grandparents witnessed the birth of the Chinese Republic, the Japanese occupation, and the founding of the People's Republic of China. (1)

I grew up listening to stories of my family's hard work and sacrifices after they came to the United States. (2) As a doctor, my paternal grandfather never left the hospital during his first eight months in the United States. Instead, he ate, slept, and diligently worked to improve his English. My paternal grandmother worked full time as a nurse and raised my father and his brother. My maternal grandmother raised four children on her own, all while working full time at a print shop.

My family did the hard work. They learned English without an accent, became professionals, and assimilated to create opportunities for me to reap the benefits of the "American Dream." My father grew up being taught the adage to "work twice as hard as a white person to be treated as his equal." (3) They swallowed the indignities and injustices of being treated unequally at work, and, as a result, I was raised with a life of great privilege. (4) However, life and the law are more complicated than the proverbial house with a white picket fence that my forebearers were able to provide for me.

Realizing this "American Dream" came at significant personal cost. For my family and countless others, they were uprooted from home--taken from a rich cultural context filled with music, food, and a shared mother tongue. (5) They exchanged mooncakes and ducks for mashed potatoes and turkeys on holidays. Implicit in the directive to learn to speak English without an accent was learning to be white.

This Note investigates the impact Asian Americans (6) have had on the development of law in the United States, starting with outright exclusion from entry to the United States, moving through the civil rights laws of the 1960s, and ending with the present where discrimination is more prevalent in places the law does not yet reach. Specifically, there are now covering demands (7) placed on Asian Americans to conform to the trappings of white U.S. culture. Though subtle and at times less harsh than exclusion, the implicit and explicit demands to cover rest on the United States' history of racist statutes, case law, and policies. This Note stands on the shoulders of a long line of scholars who have combatted the erasure of Asian Americans from the law by publishing "identity projects" that challenge and nuance the Black-white dichotomy prevalent in the U.S. legal system. (8)

Part I surveys the xenophobia in the late 1880s that was rooted in the belief that Asian immigrants were inferior and perpetually foreign. It also examines litigation Asian immigrants brought trying to claim whiteness and the Alien Land Laws that prevented land ownership and how these laws seeded the ground for the Japanese internment. (9) Part II examines the cultural makeover of Asian Americans following the enactment of the civil rights laws of the 1960s, exploring assimilation and the model minority myth.

Part III investigates the tension faced by the descendants of earlier generations of Asian Americans, those who have benefitted from assimilation--whether to claim honorary white status or to further ally themselves with Black, Indigenous, and People of Color (BIPOC) communities. (10) Finally, Part IV proposes that Asian Americans could and should do more than simply respond to racism and instead work towards racial solidarity while challenging implicit demands to cover. (11)

1. HISTORICAL ARTIFACTS--ANTI-ASIAN ANIMUS

   This Part discusses the anti-Asian animus that met the earliest Asian immigrants. It covers the Chinese Exclusion Act and highlights litigation that sought to challenge the racial hierarchy explicit in U.S. naturalization law. (12) While a full retelling of the history of the earliest Asian immigrants is beyond the scope of this Note, this Part highlights key areas through which the judiciary contributed to the establishment of the Asian American identity--an identity labeling Asian Americans as perpetual foreigners. (13) While much of this history has been told, enough of it has been consistently rendered invisible such that it becomes necessary to lay the groundwork to fully understand the impact of the courts on the shaping of a modern Asian American identity. (14) This survey demonstrates the law's role in establishing Asian Americans as "perpetual foreigners" and early attempts by immigrants to assimilate and be welcomed in the United States.

   1. Exclusion and Litigating Whiteness

      At the end of the nineteenth century, the early Chinese arrivals to the United States were immigrants seeking opportunity. Not unexpectedly, this influx of new workers created economic competition that stoked nativist fires. (15) This early period has been described by some as the "Driving Out," where U.S. citizens burned Chinatowns while terrorizing and lynching Chinese immigrants. (16) This nativism spurred the enactment of the Chinese Exclusion Act, which suspended the immigration of Chinese laborers--the first federal immigration restriction based solely on membership in a specific ethnic group. (17) In response, Chinese immigrants already in the United States challenged the law. As this Part shows, the Supreme Court upheld exclusion while simultaneously defining the boundaries of whiteness. (18)

      In 1889, the Supreme Court upheld the Chinese Exclusion Act in Chae Chan Ping v. United States when it held that a Chinese laborer's certificate to return had been annulled by the passage of the Act. (19) The Court suggested that exclusion was needed to keep the peace and prevent violence. (20) In its opinion, the majority equated the influx of Chinese to an "invasion" that would be a "menace to our civilization." (21) The Court further reinforced notions of foreignness by describing the Chinese as "inferior" strangers unwilling to change their traditions. (22) In embracing this sentiment, the Supreme Court legitimized decisions from other courts and thus helped solidify the sentiment that the Chinese were incapable of assimilating as citizens of the United States. (23) This language spoke of an "impassable difference" with white people and that the Chinese were "incapable of... intellectual development beyond a certain point." (24) In highlighting these differences, the courts laid foreignness as a foundational aspect of the identity that would soon become "Asian American."

      In response to the nativism of the late nineteenth, many Chinese turned to the courts to recognize their rights by bringing habeas corpus petitions (25) and fighting for birthright citizenship. (26) In the 1920s, some Asian Americans also sought to naturalize as U.S. citizens hoping that naturalization would bring attendant rights and protections. (27) With naturalization limited to "free white persons," (28) a series of litigation called "the naturalization cases" arose when plaintiffs brought suit challenging Congress's restriction of naturalization. (29) As Law Professor Ian Haney Lopez wrote, these naturalization cases brought litigating the definition of whiteness to the forefront because "being a 'white person' was a condition for acquiring citizenship" and thus, "the courts were responsible for deciding not only who was [w]hite, but why someone was [w]hite." (30) These cases demonstrate the important ways in which the courts legally constructed an Asian American "race" by relying on the science of the time, common knowledge, and a performative standard of assimilation. (31) Engaging with the logic and language of the opinions in the naturalization cases demonstrate historical conceptions of racial identity and the role of the court in establishing these identities.

      One of the core naturalization cases, Ozawa v. United States, made its way to the Supreme Court in 1922 when Takao Ozawa sought to naturalize as a U.S. citizen. (32) Born in Japan in 1875, Ozawa attended U.C. Berkeley and had made a life for himself in the United States. (33) In his case, Ozawa drew on "biological, social, and performative conceptions of race" to assert "that he was white." (34) One of the ways that he argued his whiteness was by attempting to show that he had assimilated to U.S. culture. (35) In addition, quoting anthropologists who had previously written about the whiteness of Japanese skin, he argued that his skin color actually was "white." (36) Lastly, in the alternative, he sought to distinguish the Japanese race from that of the Chinese race, whom he argued had a specific Exclusion Act passed against them. (37)

      The Court rejected Ozawa's argument that the color of his skin made him white. (38) Alluding to "numerous scientific authorities" that it did not cite, the Court held that the phrase "white person" was synonymous with "a person of the Caucasian race." (39) As Ozawa was deemed "clearly of a race which is not Caucasian," he thus would not be eligible for naturalization through the Court's "gradual process of judicial inclusion...