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

AuthorKuo, Ming-sung
  1. 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.

  2. 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 strands, the common characteristic is to place these two cases in different categories of constitutional law. In other words, "constitutional law" is the only link between Yick Wo and the Chinese Exclusion Case. The remainder of this section offers an overview and critique of the tendency among legal scholars to dichotomize these two cases.

    1. The Dichotomy Tendency: Two Varieties

      Two dichotomous analyses of Yick Wo and the Chinese Exclusion Case exist: irrelevance and bifurcation.

      1. The Irrelevance Perspective

        In this analysis, Yick Wo and the Chinese Exclusion Case are presented as falling into two distinct categories, irrelevant to each other. (17) The former falls in the category of fundamental rights; the latter resides in the field of governmental power. (18) While Yick Wo is viewed as the precursor to the Lochner ideal of protecting economic liberty, (19) the Chinese Exclusion Case is held up as the cornerstone of the modern plenary power doctrine in the area of foreign affairs. (20) Because of the tenuous relationship between economic regulation (the perspective through which Yick Wo is commonly viewed) and foreign affairs (the perspective through which the Chinese Exclusion Case is commonly viewed) in American constitutional jurisprudence, (21) this analysis will be termed "the irrelevance version."

        1. Yick Wo as the Antecedent of Economic Liberty

          From the irrelevance perspective, Yick Wo is a typical case involving fundamental rights. Nevertheless, the significance of Yick Wo to fundamental rights is not comprehensive, but specific. Despite the Court's explicit invocation of the Equal Protection Clause to strike down the disputed municipal ordinance in Yick Wo, (22) legal scholarship has tended to overlook this aspect of the case. Thus, Yick Wo was the predecessor of cases that examined substantive due process issues irrespective of the Equal Protection Clause. (23)

          The plausibility of this irrelevance reading of Yick Wo seems to be based on the following rationale. First, the catchall nature of the Equal Protection Clause makes it possible to ignore the Court's opinion concerning the textual foundation of its decisions. Although the Equal Protection Clause coexists with other constitutional provisions, it is more formal than substantive. (24) All equal protection cases simultaneously entail substantive rights. (25) Thus, some legal scholars have found room to establish the irrelevance version of Yick Wo outside the purview of equal protection. Ignoring the Court's explicit reference to the Equal Protection Clause in deciding the constitutionality of the municipal regulation at issue, the irrelevance perspective dismisses this aspect of the case as rhetorical and empty. Under the irrelevance perspective, the issue was the Court's due process analysis. (26)

          In addition to the structural nature of equal protection, the facts of Yick Wo and the Court's reasoning give material support to the irrelevance perspective. The contested right in Yick Wo was the right of the plaintiffs to run their laundry free from the arbitrary and unregulated discretion of the Board of Supervisors of San Francisco. (27) This occupational freedom falls into the category of economic liberty. (28) The Court took this position by acknowledging that the disputed ordinance constituted a prohibition of the plaintiffs' occupation, and the destruction of the their business and property. (29)

          Supporters of the irrelevance version of Yick Wo also look for support beyond the text of the Court's opinion. They look to the contemporaneous related opinions of the Court of Appeals for the Ninth Circuit, whose jurisdiction includes San Francisco, where the conduct at issue in Yick Wo took place. Based on the fact that the Ninth Circuit Chinese cases generally involved state interference with property or contracts, it is conceivable that Yick Wo was a case of the same kind. (30) Furthermore, one of the justices hearing Yick Wo, Justice Stephen Field, had been a chief defender of property rights and freedom of contract on the Ninth Circuit before he was appointed to the Supreme Court in 1863. (31) The fact that Field joined the decision in Yick Wo suggests that his primary stance on private economic liberty was not compromised by Justice Matthew's opinion. Yick Wo is accordingly interpreted by this school as a case of substantive due process instead of one of equal protection. (32)

          Other scholars who support the irrelevance perspective have approached the issue from a sociological point of view. According to this view, the rights created by the Civil War Amendments were restricted to blacks. If non-blacks were to benefit, they needed to show that the Civil War Amendments did not intend otherwise. (33) Thus, as the Equal Protection Clause was enacted in response to the atrocities inflicted on blacks by southern states in the years following the Civil War, the argument goes that it did not protect the Chinese. (34) As a consequence, the other major...

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