The Chinese before the courts: Ethnoracial construction and marginalization

Abstract

Listen

Translate article

Justice Field's decision inHo Ah Kow v. Nunan, like the Supreme Court's decision seven years later inYick Wo v. Hopkins,45 stands out in the otherwise dreary history of Chinese litigants seeking equitable justice in the courts of the United States.46 Although the addition of “person” to the due process and equal protection clauses of the Constitution's Fourteenth Amendment provided the basis for a great many Chinese aliens to seek redress for the violation of their personal and property rights,47 the denial of citizenship, affirmed inAh Yup and remaining in force until 1943, stood as a bar to their integration into the American political community and civil society. Until 1943, when the right to naturalization was granted to Chinese aliens as part of a gesture to America's Kuomintang ally in the war against Japan, immigrant Chinese were officially marginalized in America's invidious hierarchy of races. They all too often were made to bear the burden of a juridical interpretation that had originated in the joint and separate employment of a conjectural ethnohistory, a dubious and contradictory ethnology, and, with rare and occasional exception, the judiciary's failure to discover and evaluate the real intent of the classificatory schemas that had begun to stigmatize them when they were first designated as generic “Indians” or as equally generic “blacks”. Like blacks, Chinese had been tarred with what Justice Harlan insisted wasthe badge of slavery: race discrimination. But, unlike blacks, Chinese had not been emancipated in 1865.48