From Chinese Exclusion to Guantanamo Bay: Plenary Power and the Prerogative State. By Natsu Taylor Saito. (Boulder: University Press of Colorado, 2007. xii, 497 pp. $34.95, ISBN 978-0-87081-851-6.)

Abstract

Natsu Taylor Saito's From Chinese Exclusion to Guantánamo Bay, seeks to “reveal in broad strokes” the “significance” of the plenary power doctrine to “American law” (p. 15). Saito argues that the progress of the doctrine reveals much about the way America deals with “those not explicitly enslaved but [who are] the subjugated Other under U.S. law—the people in external colonies, those subject to internal colonial rule, and those explicitly recognized as subjects of another sovereign” (ibid.). Working along with its doctrinal cousin “military necessity,” the doctrine allows the American government to deprive relatively powerless groups of protections of judicial review. Presenting itself as “a nation of laws that gives optimal protection to human rights and democratic processes,” the United States eschews the jurisdiction of international decision-making bodies,” leaving those injured by abusive government policy without effective remedies (p. 14). Saito traces the history of the plenary power doctrine in the Supreme Court's jurisprudence. After the Civil War and the subjugation of American Indians, the country addressed two principal concerns: “the place of those deemed Other within American Society, and the extent to which the United States would follow the path of European imperialism” (p. 16). The plenary power doctrine emerged as a way to resolve these crucial issues, doing grievous harm to many in the process. The infamous Chinese exclusion cases, The Cherokee Tobacco case (1870) (in which the Court declined to strike down a federal act that violated a treaty with American Indians), and the so-called Insular Cases (in which the Court held that those living in American territories were not entitled to the full protections of the U.S. Constitution) were all products of the extreme judicial deference given to the political branches of government. Those measures were enacted and tolerated by the majority of American citizens because the people being deprived of their rights were racial or ethnic minorities: hence the national acceptance later of the internment of Japanese Americans during World War II and the refusal to prohibit “immigration laws that discriminate on the basis of race, ethnicity, national origin, or religion” (p. 26). What gives Saito's critique of plenary power its particular urgency, of course, is what has happened to the country since September 11, 2001. The perpetrators of the attack were Arab, Muslim, and foreign. It was easy to cast those who shared their ethnic and religious identities as, in Saito's term, “the Other,” whose rights could be abrogated without much recourse.