The Chinese Exclusion Act: What It Can Teach Us about America

What It Can Teach Us about America

B. Railton

• Publisher: Palgrave Pivot
• Year: 2013
• ISBN:
  9781137339096
• Topic: History
• Subtopic: Asian History
• Index: History

This book explores two critical strands in American Studies: policy conversations on legal and illegal immigration and social and educational conversations on diversity and multiculturalism. As author Benjamin Railton shows, a fresh look at the Chinese Exclusion Act overturns much of the received wisdom on immigration and American identity.

1

What the Act Can Teach Us about Immigration History and Laws

Abstract: The phrase “My ancestors came here legally,” whether deployed by Sarah Palin, Colin Powell, or anonymous web commenters, represents a widely accepted yet fundamentally inaccurate understanding of the history of immigration and law in America. Remembering the Chinese Exclusion Act helps us consider the absence of national immigration laws for the first post-revolutionary century, and thus highlights the historical meaningless of concepts such as “legal immigrant” and “illegal immigrant” during that era. It also connects us to the ethnically and nationally discriminatory laws that developed from the 1882 Exclusion Act through the 1920s Quota Acts (and lasted until the 1965 Immigration Act), under which “legal” and “illegal” were still far from consistent or stable categories.

Keywords: Chinese Exclusion Act; Ellis Island; illegal immigrants; immigration; immigration laws; legal immigrants

Railton, Ben. The Chinese Exclusion Act: What It Can Teach Us about America. New York: Palgrave Macmillan, 2013. DOI: 10.1057/9781137339096.

On June 1, 2011, Sarah Palin’s bus tour of America arrived at Ellis Island, where the former vice presidential candidate and current media figure delivered a brief speech on the site and its connection to the history of American immigration. Palin’s speeches throughout the tour were geared directly toward contemporary, contested issues and debates—an emphasis best illustrated by her revision, a few days later at a stop in Massachusetts, of the purposes of Paul Revere’s ride to include support for gun ownership—and the Ellis Island speech was no exception: she used it as an opportunity to critique the DREAM Act (which was during that period being debated in Congress) and what she called its “usurping” of the American legal system.

Yet despite that explicitly contemporary and partisan component to Palin’s Ellis Island remarks, in her speech’s most central point she expressed a longstanding, widely shared, and indeed I would argue generally accepted American narrative: that in the past most immigrants to the United States came here legally, that it has thus always been a matter of choice whether a new arrival pursues that legal path (“stands in line and follows the rules,” as Palin put it) or opts for illegal immigration instead, and that the larger numbers of late 20th and early 21st century illegal immigrants represent an increase in the community of arrivals choosing the path outside of the law. “My ancestors came here legally,” goes a particularly common version of this narrative, one found again and again in letters to the editor and the comments sections of online news articles or opinion pieces related to any aspect of immigration policy or history, and even immortalized on a series of t-shirts (featuring different national flags) available for purchase at the website CafePress.com. That seemingly straightforward and factual statement is, moreover, almost always accompanied by the implicit, and indeed often explicit, follow up argument that “it’s only fair that we require all current immigrants to do the same and punish those who choose not to.”

In September 2011, New Hampshire Congressman Frank Guinta articulated a particularly clear version of each element of this narrative, in a piece entitled “Frankly Speaking: Illegal Immigration—Making Washington Enforce the Law” that Guinta posted on his website to explain his support for H.R. 2497, the HALT (Hinder the Administration’s Legalization Temptation) Act. Guinta, who is Italian American in heritage but whose family has apparently been in the United States since at least the early 20th century, wrote “I am not opposed to legal immigration. I’m a product of it, just like many of you are. My ancestors came here legally from overseas. But illegal immigration is something entirely different. The U.S. is a nation of laws. Illegal immigrants choose not to play by the rules, and then expect to receive all the privileges given to those who followed the law and now live here legally.”

Guinta’s words have been echoed by other political figures and commentators on numerous occasions, as exemplified by several from just the last two years. In a 2011 series of biographical and policy statements from candidates for the Kansas State Legislature, retired Federal Judge John Rubin noted that, “I am a child and grandchild of immigrants who came to this country from Italy, Greece, and Russia in the late 19th and early 20th centuries. So I take a back seat to no one in my admiration and respect for the foreign-born immigrants of all nations and cultures who, like my ancestors, came here legally, assimilated and contributed so much to our country’s strength, freedom, diversity, and economic prosperity. But they came here legally; that is the key.” When Virginia legislators announced their 2011 plans for a series of anti-illegal-immigration laws, they did so with a statement that began, “House Republicans believe that playing by the rules and abiding by the law is important. Countless immigrants to this great nation have come here to embrace the American Dream, and we very much honor legal immigrants by ensuring that when people enter our country for legal purposes and they observe the rules, we welcome them. It’s that simple.” In articulating his support for his state’s own high-profile and controversial police profiling law, S.B. 1070, Arizona State Representative Steve Montenegro, a descendant of immigrants from El Salvador, argued that, “I am saying if you came here illegally, get in line, come in the right way.” And throughout the spring of 2012, in promotional appearances to publicize his memoir and expound on the presidential race and the state of American politics, former Secretary of State Colin Powell framed points about immigration reform by noting, “My parents came here 90 years ago [from Jamaica], legally I might add.”

As was the case with Palin’s remarks, there are of course political and partisan elements to each of these examples and their contexts: voters to sway, laws to pass, points to score. But I would argue that in each instance this particular narrative of legal and illegal immigration, the idea that both are longstanding and relatively stable historical categories (and thus in each era represent two distinct choices that individuals can and do make), is being presented as a given, a shared history outside of those political debates, something on which all Americans can and would agree. And in case that narrative has not been sufficiently internalized by the average American, less overtly political (or at least partisan) institutions such as the Center for Immigration Studies (CIS), an independent, nonprofit research organization that has been funded in part by the U.S. Census Bureau, continue to work at reinforcing it. For example, throughout his 2006 study entitled “Two Sides of the Same Coin: The Connection Between Legal and Illegal Immigration,” CIS author James R. Edwards, Jr., creates very similar narratives of the consistent and longstanding histories of and relationships between legal and illegal immigration: in broad framing ideas, such as Edwards’ thesis that “when legal immigration levels have been high, illegal immigration levels have also tended to be high”, and in specific historical references to the two categories, as when he writes that “an average of 520,000 legal immigrants entered each year between 1880–1890.”

Given the frequency with which these narratives of the longstanding histories of legal and illegal immigration are referenced in our political arguments, policy studies, and news stories, it’s no surprise that even many vocal public advocates for more immigrant-friendly policies (the DREAM Act, amnesties for undocumented immigrants already in the country, changes in the laws for new arrivals, etc.) tend to focus on arguments about our current “broken system” or on empathetic appeals to human experiences and suffering, rather than to challenge these predominant narratives and histories in any overt way. Indeed, it takes a significant effort to find any mainstream journalist, politician or public figure, or commentator willing to acknowledge, in a clear and central way, the simple and vital fact at the heart of American immigration history: for nearly all of our nation’s past, from the first 16th and 17th century moments of European arrival until the mid-1920s, the categories of “legal” and “illegal” immigration did not exist, and so referring to immigrants from any and all of those periods as legal or illegal is a disingenuous and almost entirely meaningless exercise in anachronism and inaccuracy.

Academic historians and scholars tend to be familiar with these basic facts, and such familiarity can make it seem unnecessary to write about them at length (or even at all). One of this manuscript’s anonymous reviewers, responding to this chapter’s frame and the “My ancestors came here legally” idea, put the question to me directly: “Who is arguing that?” It’s undoubtedly the case that few if any academics or scholars are doing so, and thus as viewed from within academic conversations and communities I might seem to be responding to straw men. But Palin, Powell, and the other figures I quoted above are not made of straw; indeed, they are public and prominent voices whose words and arguments have the potential to influence many Americans and reinforce shared narratives. Moreover, I would reiterate that I see their references to the “my ancestors” concept as precisely the least controversial aspect of their ideas or perspectives, as instead an engagement with what is a widely shared and generally accepted national narrative about the histories of legal and illegal immigration (if one that each figure then uses for his or her own, often more divisive purposes). If we academic scholars do not make public our very distinct ideas about immigration history and law, we will leave that narrative unchallenged; whatever more complex and nuanced issues we analyze instead, we will thus be leaving many of our fellow Americans with a largely inaccurate sense of some of the core questions of American immigration history. And my contention in this chapter is that for those of us who seek to push back publicly on those narratives and histories, the 1882 Chinese Exclusion Act represents a particularly striking and effective starting point through which to do so.

* * *

The Chinese Exclusion Act was, in every meaningful sense, the first national immigration law. There have been national laws pertaining to citizenship for new arrivals since the Naturalization Acts of the 1790s¹; laws dealing with basic documentation of ships and passengers coming to the United States have been on the books since the 1819 Steerage Act; and with the 1862 Anti-Coolie Act, Congress responded for the first time to a particular group of arrivals, making it illegal for certain kinds of forced Chinese labor to be imported into the country. The latter law was extended and made slightly more anti-immigrant by the 1875 Page Act; while the Act continued to regulate forced immigration (i.e., kidnapping) of “Coolies,” it also allowed the federal government to prohibit immigrants in a couple of very specific categories: prostitutes,² and individuals convicted of and still serving their sentences for crimes (other than political ones) in their native countries. Each of these Acts certainly represents an influential and interesting part of our evolving national histories of immigration, citizenship, and government; the more we can collectively engage with all of them, the broader and deeper will be our resulting knowledge of those histories and of how they developed alongside our national identity throughout the post-Revolutionary century. But when it comes to immigration laws, the bottom line is this: if an American’s ancestors arrived in the United States prior to 1882 and weren’t kidnapped Chinese laborers, prostitutes, or escaped convicts, they were subject to no national laws of any kind, and thus were neither legal nor illegal immigrants.³

The Chinese Exclusion Act both represented a significant shift in that history and yet still left virtually all immigrant arrivals unaffected by the law. On the one hand, the Act, which made it illegal for nearly all Chinese immigrants to enter the United States (temporary visitors such as students, merchants, and diplomats were exempt from this Act), was the first law to restrict, and indeed the first that applied to, a broad community of arrivals.⁴ Initially the Act excluded Chinese arrivals only for a period of ten years, but the 1892 Geary Act extended the ban for another decade, and in 1902 a revised act established the ban as the law of the land with no horizon of expiration. In case the Act’s overtly exclusionary and discriminatory function was not sufficiently apparent, a series of follow up laws and decisions thoroughly reinforced that purpose: an 1884 amendment to the Act clarified that the law applied to ethnic Chinese regardless of their country of origin (among other amplifications of the law’s enforcement); the 1888 Scott Act prohibited any Chinese American who left the United States from returning; and an 1894 Act made it illegal for individuals affected by any of these laws to petition the government for redress. In at least four significant cases the Supreme Court weighed in on and sided with these laws: ruling in 1889’s Chae Chan Ping vs. United States that the Exclusion Act and Scott Act were both constitutional; and in 1895’s United States vs. Lem Moon Sing, 1896’s Wong Wing vs. United States, and 1898’s United States vs. Wong Kim Ark ruling in favor of (respectively) the ban on petitions, federal customs officers’ complete and unchallengeable authority to make the decisions of restriction or admission, and the law denying readmission for those who left the country. Gradually these restrictions were apparently also applied by customs officers to arrivals from other Asian nations and communities; that practice was solidified by 1917’s Immigration Act, which prohibited all arrivals from the so-called Asiatic Barred Zone (basically any South and Southeast Asian nation not “owned by the United States”).

So, again, a significant shift: as of 1882 the majority of the tens of thousands of continuing Chinese arrivals to the United States⁵ were now deemed illegal immigrants, and that newly meaningful—really, outside of certain classes of criminals, newly created—national legal category would gradually be extended to other Asian immigrants over the next four decades. It would also produce the first mechanisms through which illegal arrivals skirted the law, including the complex case of the “paper sons,” young Chinese men who in the aftermath of the 1906 San Francisco fire (which destroyed many immigration records at the Angel Island station) forged papers stating familial relationships with Chinese Americans in order to gain entry to the United States. Yet despite this striking change for certain immigrant communities, for any other arrival (outside of those aforementioned criminal classes and other socially outcast categories such as “lunatics”), anyone coming to the United States from another region or nation—as of 1882, anywhere besides China; as of 1920, still many parts of Asia (such as the Philippines, Turkey, and the Middle East) and all of Europe, Africa, Australia and the South Pacific, and Latin and South America—this law did not apply to them, and hence did not change their situation at all. That is, I am arguing, it did not render them suddenly legal immigrants—the fact that Chinese (and eventually other Asian) immigrants were now excluded by law, after all, did not address in any sense the issue of immigrants from other nations and regions. These other immigrants were no more legal or illegal than they had been prior to the Exclusion Act; they were simply immigrant arrivals, ones outside of any legal restriction or categorization.

As this is one of the more significant points of my arguments here, I want to push on it for a moment more. Certainly it would be possible to argue that doing something in the absence of any legal restrictions (or indeed laws of any kind) is doing something “legally,” but I don’t believe that’s how the term is generally (if ever) used or meant. Would we say that we’re “breathing legally,” just because there are no laws making it illegal?⁶ If breathing were made illegal for only those in a certain community (people who have been exposed to and thus might exhale poisonous gases, for example), would we then describe everyone else as “legal breathers”? To my mind, the answer to both questions is clearly “no”—that the only way it makes sense to describe an action as “legal” or “illegal” is if the law applies to those taking the action, if an individual and his or her actions exist under that law’s jurisdiction. Again, for all other (noncriminal) immigrants during these decades after the Exclusion Act’s passage, there remained no immigration laws that applied to them. And to put that crucial fact in relationship to one other defining thread of our national narratives, the argument that so frequently follows the phrase “my ancestors came here legally” (and that is to my mind implied by the phrase whether it is explicitly stated or not): those other immigrants certainly did not “choose” any aspect of their status, no more than a Chinese immigrant could “choose” whether or not he or she was subject to the Exclusion Act; the idea of “choice” simply continues to have no meaningful connection to the realities of immigration, law, and identity during this period.

It was not, indeed, until the early 1920s, in response to World War I–inspired fears of sedition and anarchism, the ongoing “Red Scare,” reinvigorated anti-Catholic bigotry, and other complex influences, that Congress passed immigration laws that genuinely encompassed most arrivals to the United States. That shift be...

Table of contents

• Cover
• Title
• Introduction: Teaching Americans the Chinese Exclusion Act
• 1  What the Act Can Teach Us about Immigration History and Laws
• 2  What the Act Can Teach Us about Diversity
• 3  What the Act Can Teach Us about Forgotten and Inspiring American Stories
• Conclusion: So What?
• A Few Suggestions for Further Reading
• Index