Keeping the Chinese Out

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The Immigration 101 series tracks my course in immigration law at Hofstra University School of Law.

Reading some of my previous posts, it may strike you that immigration law sometimes seems to conflict with rights protected under various parts of the Federal Constitution, most notably with the First Amendment. You would be right. The evolution of this conflict is seated in a profoundly hysterical reaction to immigration based on a primal racism.

For the first hundred or so years of American history, there were just about no Federal immigration laws. The country had declared its independence in part because King George III had allegedly interfered with immigration to America.  More importantly the Constitution did not make allowances for any immigration laws other than setting up a uniform system for immigrants to apply to become citizens. This was important because under strict constructionist interpretation, if the Constitution did not enumerate a power, then the Federal government does not have that power. In other words, drafting an immigration law would itself be illegal.

I sometimes ask my law students why, before the 1960s, so many Europeans came to the U.S., but so few Asians. I usually get a round of answers over a wide territory. Most commonly though, students point to the greater distance from Asia to the U.S. than from Europe. I respond that while New York is closer to Europe, San Francisco is closer to China, and yet more European immigrants moved to California than Chinese after 1880.

Chinese were the first group of non-White immigrants to come to the United States from overseas in large numbers. They came to work the mines of California and to build the Transcontinental Rail Road. They were described by contemporary White pundits as the “Yellow Peril” and derided as a “Mongoloid Horde”.

It was common for White commentators to speak of the the United States being overwhelmed by Chinese immigrants
but the numbers never bore out the fear mongering. In 1880 there were only 105,000 Chinese immigrant living in the U.S. Only about 2% of all immigrants in the second half of the 19th Century were from Asia, and only a fraction of those were Chinese. By contrast, there were single country immigrations that were overwhelming, but all were from Europe. So, for example, between 1840 and 1880, the same period as peak migration from China, more than 2.4 million Irish immigrated to the United States, a phenomenal number given a total population in Ireland of only 8 million. Another million Irish would immigrate during the last twenty years of the 19th Century. 2.7 million Germans came to the U.S. from 1840 to 1880 with 2 million more coming from 1880 to 1900. Italy would generate one of the true floods of immigrants with 2 million coming in the first decade of the 20th Century. Even this number was exceeded by Immigrants from the old Austro-Hungarian Empire which sent 2.1 million immigrants from 1900 to 1910. So the Chinese were a small stream in the 19th Century river of immigration.

But they were different. They were a different color, spoke a non-Aryan language, and followed a “heathenish” religion. This was enough to inspire panic and prompt the country’s first real immigration laws.

In 1882 the U.S. Congress enacted the Chinese Exclusion Act which prohibited most Chinese from immigrating to the U.S. It also created the first “green card”. Chinese in the U.S. were only allowed to return from visits to their homeland if they possessed a document showing they had lived here legally. This “green card” was not required for Whites traveling back to Europe.

In the mid-1880s there were brutal mob attacks on embattled Chinese communities in the western U.S. Congress responded to terrorism against the Chinese by making the laws against the Chinese tougher.

A law was passed which prohibited most Chinese from entering the U.S. even if they had the 19th Century version of a “green card”. Chae Chan Ping was a native of China. He had lived and worked legally in the U.S. since 1875. In 1887 he decided to return to China for a visit. He obtained one of the “green cards” required under the 1882 Chinese Exclusion Act, but while he was away Congress passed a new law preventing just about all Chinese from returning. He was understandably perplexed. He had played by the rules, obtained the card giving him permission to re-enter the U.S., and done everything according to law. He would never have undertaken his vacation home had he known the rules would change and he would be denied re-entry. And yet here he was, faced with the loss of everything he had spent more than a decade working for.

His case would establish the parameters for protecting immigrants under the law. The court’s decision will be the subject of the next installment in this series.

Read other parts of this series:

Immigration 101 is a comprehensive series on American immigration law for the layperson. This series tracks my course on immigration law at Hofstra Law School and answers many of your questions about immigration policy.


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