Elusive Citizenship

Immigration, Asian Americans, and the Paradox of Civil Rights

John S. W. Park

• Publisher: NYU Press
• Year: 2004
• Print ISBN: 9780814767146
• eBook ISBN: 9780814768105
• Topic: Social Sciences
• Subtopic: Civil Rights in Law
• Index: Social Sciences

Since the late nineteenth century, federal and state rules governing immigration and naturalization have placed persons of Asian ancestry outside the boundaries of formal membership. A review of leading cases in American constitutional law regarding Asians would suggest that initially, Asian immigrants tended to evade exclusionary laws through deliberate misrepresentations of their identities or through extralegal means. Eventually, many of these immigrants and their descendants came to accept prevailing legal norms governing their citizenship in the United States. In many cases, this involved embracing notions of white supremacy.
John S. W. Park argues that American rules governing citizenship and belonging remain fundamentally unjust, even though they suggest the triumph of a "civil rights" vision, where all citizens share the same basic rights. By continuing to privilege members over non-members in ways that are politically popular, these rules mask injustices that violate principles of fairness. Importantly, Elusive Citizenship also suggests that politically and socially, full membership in American society remains closely linked with participation in exclusionary practices that isolate racial minorities in America.

1
“A Subclass within Our Boundaries”

In June of 1982, the United States Supreme Court issued its decision in Plyler v. Doe, a case from Texas involving the education of undocumented alien children in that state. Since 1975, the Texas Legislature had authorized the withholding of state funds for the education of undocumented children, and had also allowed local school districts to deny enrollment to such children.¹ In part, the state had passed these restrictions to discourage illegal immigrants from settling there. The plaintiffs in the original suit in 1977 were undocumented, school-age children in Texas “who could not establish that they had been legally admitted into the United States.” Although their very presence was in violation of several federal immigration rules, they still pressed their suit, as anonymous “Does” against the Superintendent Plyler, on the grounds that the Texas rule violated the Constitution: “The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or lawfully admitted aliens.”² The Court divided as evenly as it could, with five Justices supporting the plaintiffs, the other four the State of Texas; altogether, there were five separate opinions from the Court, including the dissent by Chief Justice Warren Burger.

“Fundamental Conceptions of Justice”

In his majority opinion, Justice William Brennan immediately rejected the claim by the State of Texas that undocumented children, simply because of their immigration status, were not “persons” within the meaning of the Fourteenth Amendment. Citing several precedents, a few from the late 19th century, Brennan said “aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”³ Brennan quoted from Justice Stephen Field, who had once rejected a similar argument about the scope of Fourteenth Amendment protections in an early Chinese Exclusion Case almost a hundred years earlier: “The contention that persons within the territorial jurisdiction of this republic might be beyond the protection of the law was heard with pain on the argument at the bar—in face of the great constitutional amendment which declares that ‘no State shall deny to any person within its jurisdiction the equal protection of the laws.’”⁴ Clearly, according to Brennan, these undocumented children were “persons” in the eyes of the Constitution, and as persons they could invoke the Equal Protection Clause of the Fourteenth Amendment.

Yet Justice Brennan expressed appreciation for the strangeness of this situation, of applying the Constitution to persons who were within the territorial jurisdiction of the United States, but without the nation’s consent. It would seem odd that these illegal immigrants could be entitled to anything, let alone the protection of the nation’s highest law. These persons were of a “special status,” their very presence a sign of the nation’s failure to police its lawful boundaries. “Sheer incapacity or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a ‘shadow population’ of illegal immigrants—numbering in the million—within our borders.” Their continued presence outside the law could still evolve into a potentially larger political problem. “This situation raises the specter of a permanent caste of undocumented resident aliens.”⁵ The threat of a special caste might be especially true of undocumented children, Brennan said, who were of an even more peculiar subclass among this “shadow population”: “The children who are plaintiffs in these cases ‘can affect neither their parents’ conduct nor their own status.’”⁶ The Texas rule was unjust, he argued, because by targeting children, it “imposes its discriminatory burden on the basis of a legal characteristic over which children can have little control.” In other words, the rule functioned to “[penalize] these children for their presence in the United States.”⁷ “Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”⁸ Brennan wrote that the Texas rule violated the essence of the Equal Protection Clause, which had been conceived to abolish “governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit.”⁹

The barriers were “unreasonable” precisely because they involved public education, which, according to the Court’s earlier precedents, wasn’t quite a “fundamental right,” but an “important governmental interest.”¹⁰ The interest was an important one because of the special role of public education in American public life. Citing Brown v. Board of Education from 1954, perhaps the most important Supreme Court decision of the Civil Rights Era, Justice Brennan said that “education is perhaps the most important function of state and local governments.… It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship.”¹¹ Public education served to assimilate children into the prevailing norms of society, to help them cope with their lives in the United States, and to participate in the economic and political life of the country. “What we said twenty-eight years ago in Brown still holds true.”¹² Moreover, citing Justice Hugo Black, Brennan insisted that this precedent ought to apply for all persons, including undocumented children.

After all, the Texas rule “imposes a lifetime hardship on a discrete class of children not accountable for their disabling status,” and “forecloses any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.”¹³ Perhaps like many Americans, Brennan conceded in part that the “lifetime hardship” faced by the undocumented children would most likely occur within the nation’s borders, because the children might never leave the country. “There is no assurance that a child subject to deportation will ever be deported.” First of all, they were hard to detect. Most were of Mexican ancestry, but so were a very large number of their peers in the public school districts. In terms of their educational costs and needs, the lower federal courts had already found that undocumented children were “basically indistinguishable” from the children of American citizens. In addition, recent federal rules had “legalized,” or “provided amnesty,” to persons who were once undocumented, and so it was clearly possible that, in the future, “An illegal entrant might be granted federal permission to continue to reside in the country, or to even become a citizen.”¹⁴ Unless determined otherwise, undocumented children thus had an “inchoate federal permission to remain”; given that many of them would remain in Texas, Brennan suggested that a policy of denying them public education made no rational sense.

Brennan also predicted that the rule would succeed only in creating a perpetual class of unassimilated, poor, and hostile outsiders: “It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime.”¹⁵

Chief Justice Burger half agreed that the Texas rule did appear irrational in this way, but he objected to the majority’s willingness to substitute its version of the best social policy over the judgments of the Texas Legislature. “Denying a free education to illegal alien children is not a choice I would make were I a legislator,” but “the fact that there are sound policy arguments against the Texas Legislature’s choice does not render that choice an unconstitutional one.” In other words, Texas had a sovereign right to make this public choice even though its choice may be all wrong. Burger implied that the Court’s majority was merely privileging its choice impermissibly, over the legitimate decisions of popularly elected officials.¹⁶

In addition, Burger argued that as far as the immigration and fate of illegal aliens was concerned, the Court had traditionally played a very limited role. According to settled precedents in American immigration law, again dating back to the Chinese Exclusion cases, “Congress … bears primary responsibility for addressing the problems occasioned by the millions of illegal aliens flooding across our southern border.” “Similarly, it is for Congress, not this Court, to assess the ‘social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.’”¹⁷ As sad and miserable as the fate of uneducated, undocumented families and children might be, “it is but one segment of a larger problem, which is for the political branches to solve.”¹⁸ The majority in Plyler, Burger argued, had acted in a manner beyond its traditional role in immigration law, by intervening in an area normally reserved for legislatures. That Congress should have “plenary power” over immigrants and immigration had its roots in the late 19th century, with the early Chinese cases.

Membership and Belonging in Liberal Political Theory and American Public Law

The Plyler case introduces the main themes of this study because of its very strangeness—how is it possible that a state like Texas could be required to educate persons who had no permission to be in the country in the first place? Granted, on the one hand, the case involved “innocent children,” as Brennan had pointed out, but on the other hand, they or their parents had clearly violated federal rules by coming into the United States without the nation’s consent. That Brennan had cited cases from the late 19th century for the proposition that all persons had rights—no matter the manner of their entry—was offset by Burger’s allusions to national sovereignty and congressional authority over matters of immigration, which were also legal precedents that dated to the late 19th century. Ironically, both sets of precedents were, as we shall see, authored by a single Justice, the same Justice Field, confused himself over these very issues. Confronted by “barbarians” who seemed “unassimilable,” the Supreme Court created a strange and contradictory body of law that both sides evoked in the debate over Plyler.

But these contradictions were far more basic, as the first section of this study attempts to show. Most scholars can agree that Anglo-American law has been based on various strains of liberal political theory, the philosophies of the Enlightenment articulated by John Locke, Jean-Jacques Rousseau, and John Stuart Mill, and carried forward into our own day by influential scholars like John Rawls and Ronald Dworkin. First of all, this study explains how this political theory supports within it conflicting commitments between principles of equality and fairness on the one hand, and principles of national sovereignty within bounded political communities on the other. These theoretical tensions can largely explain the muddled origins of federal immigration law in the late 19th century, as well as why Texas was required to educate illegal immigrants in the late 20th century. These tensions remain unresolved, and are perhaps irresolvable.

The second section of this study explores the first federal efforts at a resolution, undertaken by Justice Field, the primary author of several of the most important immigration precedents in American history. Field served on the Supreme Court before, during, and well after the Civil War, when questions of federal sovereignty and race-based citizenship were most intense. In response to a rising tide of anti-immigrant sentiment directed against migrants from Asia, Field at first defended the rights of all persons irrespective of their immigration status, but then eventually supported Chinese Exclusion. Even as the Chinese Exclusion Act became a precedent for other immigration rules and legal disabilities directed at Asians, Field hesitated in his support of racially hostile immigration rules. In the end, he expressed intense sympathy for the very immigrants he had worked so hard to exclude. Near his death, Field affirmed their common humanity and condemned his colleagues and government for their harshness and severity.

Finally, the last section of this study shows how Asian immigrants—the last group of immigrants legally forbidden from becoming American citizens—managed to cope with a wide variety of racially hostile rules in the United States. Many of these rules depended on the idea that some persons, namely Asians, were so different from the current American citizens that they themselves could never become American citizens. As “aliens ineligible from citizenship,” Asian immigrants were constantly harassed in American law. Until recently, Asian American legal scholarship often focused on what happened to these immigrants, as relatively passive victims to the battery of horrible state and federal rules that brutalized, stigmatized, and harassed them. More contemporary scholarship has remedied this tendency by focusing on the courageous ways that Asian immigrants fought at every turn against practically all the discriminatory statutes passed against them. This study shows something in between, by detailing the ways that specific actors and litigants evaded, fought, and embraced American law, first when they were told that they could not belong, and then, ultimately, when they were told that they could. Their story is one of resisting and embracing the principles of white supremacy, which were (and perhaps still are) at the core of American citizenship.

Altogether, this study attempts to explain how theoretical tensions within liberal theory are reflected in American public law, which in turn shaped the legal strategies of those treated as racial pariahs. The study concludes by suggesting that the experiences of Asian Americans from the late 19th century to the mid-20th century reveal the triumph of a civil rights discourse, where equality and fairness before the law remain the privilege of those who belong—or at least those capable of belonging. Despite whatever theoretical confusion, we still live in a legal regime where liberal notions of sovereignty often precede liberal notions of equality. Rather than conceiving of immigration status as an arbitrary characteristic that should not be used as the basis for legal disabilities, immigration status remains a compelling disability. That would explain why, for example, the schoolchildren in Plyler remained safely anonymous, even as they made their public claims for equality. Immigration status may be a morally arbitrary characteristic, but it is not a legally insignificant one. That has not changed since the late 19th century. What has changed in American immigration and naturalization law since Chinese Exclusion is merely the universe of “barbarians” who are conceived as capable of joining the political community. That shift, as we shall see, came at a very heavy price for generations of Asian immigrants and Asian Americans.

PART I
Theory

2
“Characteristics Arbitrary from a Moral Point of View”

Conflicting Commitments

In this section I outline why immigration rules pose significant problems for liberal theory and liberal democratic societies. I argue here that the problems arise, fundamentally, from within liberal theory itself, and from two different types of liberal commitments. On the one hand, liberal theorists have articulated ideas of equality and fairness in a way that rejects arbitrary factors as a ground for greater rights or privileges. On the other, liberal theorists have either insisted on, or assumed the need for, a bounded nation-state, with enforceable borders and a relatively clear set of rules to determine membership. At the outset, these values would seem not to conflict—ideally, a liberal nation-state, with a fixed and determinate membership, would guarantee equality and fairness to all members irrespective of qualities such as race or gender or some other arbitrary criteria. But what happens in less than ideal circumstances, when persons cross national boundaries and find themselves in liberal societies that either do not want them or treat them unfairly? On what grounds can liberal nation-states deny the claims and needs of persons who, b...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• 1 “A Subclass within Our Boundaries”
• I Theory
• II Law
• III Homeless Strangers
• Notes
• Index
• About the Author