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- Dr. Steiner
- Asian Americans and the Law
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- That any alien, being a free white person, who shall have resided
within the limits and under the jurisdiction of the United States for
the term of two years, may be admitted to become a citizen thereof . . .
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- Linnaeus proposed four races: Americanus, Asiaticus, Africanus, and Europeanus
- Each race had particular traits:
- Europeanus: white, gentle, inventive
- Asiatic: yellow, melancholy, greedy
- Americanus: red, ill-tempered, subjugated
- Africanus: black, impassive, lazy
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- Blumenbach used the word “race” in 1775 to classify humans into five
divisions: Caucasian, Mongolian, Ethiopian, American, and Malay.
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- Blumenbach coined the term “Caucasian” because he believed that the
Caucasus region of Asia Minor produced “the most beautiful race of men.”
- “White . . . we may fairly assume to be the primitive color of mankind,
since it is very easy to degenerate into brown, but very much more
difficult for dark to become white.”
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- Five races
- Xanthochroic (fair whites)
- Melanochroic (dark whites)
- Australioid (chocolate brown)
- Negroid (brown black)
- Mongoloid (yellow)
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- It is needless to remark upon the civilization of these two great stocks
(Xanthochroic and Melanochroic). With them has originated everything
that is highest in science, in art, in law in politics, and in
mechanical inventions. In their hands, at the present moment, lies the
order of the social world, and to them its progress is committed.
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- The first difference which strikes us is that of colour. . . .
[T]he difference is fixed in nature . . . . And is this difference of no importance?
Is it not the foundation of a greater or less share of beauty in the two
races? Are not the fine mixtures of red and white, the expressions of
every passion by greater or less suffusions of colour in the one,
preferable to that eternal monotony, which reigns in the countenances,
that immoveable veil of black which covers all the emotions of the other
race?
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- Add to these, flowing hair, a more elegant symmetry of form, their own
judgment in favour of the whites, declared by their preference of them,
as uniformly as is the preference of the Oranootan for the black women
over those of his own species. The circumstance of superior beauty, is
thought worthy attention in the propagation of our horses, dogs, and
other domestic animals; why not in that of man?
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- Comparing them by their faculties of memory, reason, and imagination,
it appears to me, that in memory they are equal to the whites; in reason
much inferior, as think one could scarcely be found capable of tracing
and comprehending the investigations of Euclid; and that in imagination
they are dull, tasteless, and anomalous. . . .
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- I advance it therefore as a suspicion only, that the blacks, whether
originally a distinct race, or made distinct by time and circumstances,
are inferior to the whites in the endowments both of body and mind. . .
. This unfortunate difference of
colour, and perhaps of faculty, is a powerful obstacle to the
emancipation of these people.
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- Irish, Jews, Italians, Eastern Europeans “become white”
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- Framing the Issue:
- “The only question is, whether the statute authorizes the naturalization
of a native of China of the Mongolian race.”
- “The questions are: 1. Is a person of the Mongolian race a ‘white person
within the meaning of the statute? 2. Do these provisions exclude all
but white persons and persons of African nativity or African descent?”
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- Words in a statute, other than technical terms, should be taken in their
ordinary sense. But these words in this country, at least, have
undoubtedly acquired a well settled meaning in common popular speech,
and they are constantly used in the sense so acquired in the literature
of the country, as well as in common parlance. As ordinarily used
everywhere in the United States, one would scarcely fail to understand
that the party employing the words “white person” would intend a person
of the Caucasian race.
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- At the time of the amendment, in 1870, extending the naturalization
laws to the African race, Mr. Summer made repeated and strenuous efforts
to strike the word “white” from the naturalization laws, or to
accomplish the same object by other language. It was opposed on the sole
ground that the effect would be to authorize the admission of Chinese to
citizenship. Every senator, who spoke upon the subject, assumed that
they were then excluded by the term “white person,” and that the
amendment would admit them . . . .
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- Are Japanese “white”?
- “The Japanese, like the Chinese, belong to the Mongolian race, and the
question presented is whether they are included within the term ‘white
persons.’”
- Sumner’s unsuccessful attempt to amend naturalization law
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- The words of a statute are to be taken in their ordinary sense, unless
it can be shown that they are used in a technical sense.
- From a common, popular standpoint, both in ancient and modern times, the
races of mankind have been distinguished by difference in color, and
they have been classified as the white, black, yellow, and brown races.
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- And this is true from a scientific point of view.
- Writers on ethnology and anthropology base their division of mankind
upon differences in physical rather than in intellectual or moral
character, so that difference in color, conformation of skull, structure
and arrangement of hair, and the general contour of the face are the
marks which distinguish the various types.
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- But, of all these marks, the color of the skin is considered the most
important criterion for the distinction of race, and it lies at the
foundation of the classification which scientists have adopted.
Blumenbach, in 1781, divided mankind into five principal types,-- the
Caucasian or white, Mongolian or yellow, Ethiopian or black, American or
red, and Malay or brown. Cuvier simplified this classification into
Caucasian, Mongol, and Negro, or white, yellow, and black races.
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- Other writers make a still larger number of distinct races. It is said
that Prof. Huxley's division of mankind is the most satisfactory. He
distinguishes four principal types, and he points out the marked
physical characteristics of each. These types are the Australioid
(chocolate brown), Negroid (brown black), Mongoloid (yellow), and
Xanthochroic (fair whites). To these he adds a fifth variety, the
Melanochroic (dark whites).
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- Despite cases such as Saito, there were over 400 naturalized Japanese in
1910
- Supreme Court definitively decided in 1922 whether Japanese could be
“white” in Ozawa.
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- As residents of an American territory, Filipinos were neither aliens nor
American citizens, but “nationals”
- The exclusionist policy toward Asians didn’t apply to Filipinos
- Tydings-McDuffie Act (1934) established Philippines as a commonwealth
and provided for independence within ten years
- As residents of an independent country, Filipinos then could be
excluded
- An annual quota of 50 was established
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- Any alien of the age of twenty-one years and upwards who has enlisted or
may enlist in the United States navy or marine corps, and has served or
may hereafter serve five consecutive years in the United States navy or
one enlistment in the United States marine corps, and has been or may
hereafter be honorably discharged, shall be admitted to become a citizen
of the United States upon his petition, without any previous declaration
of his intention to become such; and the court admitting such alien
shall, in addition to proof of good moral character, be satisfied by
competent proof of such person's service in and honorable discharge from
the United States navy, or marine corps.
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- Alverto served in U.S. Navy for seven years and was honorably
discharged. Can he become a
citizen under the 1894 Act?
- No, because the Navy didn’t make him white. Naturalization is still limited to
“aliens being free white persons, and to aliens of African nativity and
to persons of African descent.”
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- Section 2169 was intended to limit the application of the whole body of
the naturalization laws to aliens being free white persons or of the
African race. ‘Free white persons’ includes members of the white, or
Caucasian race, as distinct from the black, red, yellow, and brown
races.
- The use of the words ‘white persons’ clearly indicates the intention of
Congress to maintain a line of demarcation between races and to extend
the privilege of naturalization only to those of the races named.
- The petitioner is, ethnologically speaking, one-fourth of the white or
Caucasian race and three-fourths of the brown or Malay race.
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- The applicant's service in the navy does not affect his status under
section 2169 (“free white person”). It has been repeatedly held that
service in and an honorable discharge from the military service of the
United States does not extend the right of naturalization to those
persons who are beyond its provision under section 2169.
- It is apparent, therefore, that, however commendable the service of the
applicant in the navy, the provisions of law in relation to
naturalization of persons in the army and navy were intended by Congress
to grant to those serving in the army and navy, who were of the white or
African races, exemption from the necessity of a previous declaration of
intention and from the necessity of proving residence for five years
within the United States, but were not intended to extend the benefit of
the naturalization laws to those not coming within the racial
qualifications.
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- Citizens of the Philippine Islands or of Porto Rico, while not citizens
of the United States, are not aliens, and, prior to the passage of the
Act of 1906, were not capable of becoming naturalized for two reasons:
First, the naturalization laws of the United States applied only to
aliens; and, second, they required a renunciation of former allegiance.
. . .
- The effect of section 30 was to make applicable to citizens of the
Philippine Islands and Porto Rico those provisions which had theretofore
applied only to aliens. If the limitations of section 2169 apply to one
provision of the naturalization laws, they must apply to all and
consequently to section 30 of the Act of 1906. Section 2169 was intended
to limit the application of the whole body of the naturalization laws to
aliens being free white persons or of the African race. 'Free white
persons' includes members of the white, or Caucasian race, as distinct
from the black, red, yellow, and brown races.
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- Congress did not intend to extend the privilege of citizenship to those
who had become citizens of the Philippine Islands under the Act of 1902,
unless they were free white persons or of African nativity or descent.
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- Ozawa was of “the Japanese race born in Japan.”
- He applied for citizenship, which was opposed by the government.
- “Including the period of his residence in Hawaii appellant had
continuously resided in the United States for 20 years. He was a
graduate of the Berkeley, Cal., high school, had been nearly three years
a student in the University of California, had educated his children in
American schools, his family had attended American churches and he had
maintained the use of the English language in his home. That he was well
qualified by character and education for citizenship is conceded.”
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- Ozawa’s brief argued:
- The Japanese are “free.” They
are, at least the dominant strains, are “white persons,” speaking an
Aryan tongue and having Caucasian root stocks; a superior class fit for
citizenship. . . . The Japanese
are commonly called “The Yankees of the Orient.”
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- Attorney General of California’s amicus brief argued:
- The American family reared along the lines of American traditions with
the father managing the farm, the mother presiding in the home, and the
children during their younger years attending school, cannot compete
with the Oriental farm life wherein children and mother join with the
father in the actual farm labor, and in addition do not enjoy conditions
of life which are demanded by the American standard of living.
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- Ozawa also argued that the original Naturalization Act was meant to
exclude only Indians and those of African descent. The court responded:
- “It may be true that those two races were alone thought of as being
excluded, but to say that they were the only ones within the intent of
the statute would be to ignore the affirmative form of the legislation.
The provision is not that Negroes and Indians shall be excluded, but it
is, in effect, that only free white persons shall be included. The
intention was to confer the privilege of citizenship upon that class of
persons whom the fathers knew as white, and to deny it to all who could
not be so classified. It is not enough to say that the framers did not
have in mind the brown or yellow races of Asia.”
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- We have been furnished with elaborate briefs in which the meaning of the
words 'white person' is discussed with ability and at length, both from
the standpoint of judicial decision and from that of the science of
ethnology. It does not seem to us necessary, however, to follow counsel
in their extensive researches in these fields. It is sufficient to note
the fact that these decisions are, in substance, to the effect that the
words import a racial and not an individual test, and with this
conclusion, fortified as it is by reason and authority, we entirely
agree.
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- Manifestly the test afforded by the mere color of the skin of each
individual is impracticable, as that differs greatly among persons of
the same race, even among Anglo-Saxons, ranging by imperceptible
gradations from the fair blond to the swarthy brunette, the latter being
darker than many of the lighter hued persons of the brown or yellow
races. Hence to adopt the color test alone would result in a confused
overlapping of races and a gradual merging of one into the other,
without any practical line of separation.
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- Beginning with [In re Ah Yup], the federal and state courts, in an
almost unbroken line, have held that the words ‘white person’ were meant
to indicate only a person of what is popularly known as the Caucasian
race. . . . With the conclusion reached in these several decisions we
see no reason to differ. . . . The determination that the words
‘white person’ are synonymous with the words ‘a person of the Caucasian
race’ simplifies the problem, although it does not entirely dispose of
it. Controversies have arisen and will no doubt arise again in respect
of the proper classification of individuals in border line cases. The
appellant, in the case now under consideration, however, is clearly of a
race which is not Caucasian. . .
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- United States v. Thind (1922)
- Is Thind “White”?
- Asian Indians are Caucasians
- Caucasians are White
- Thind is from India
- Therefore, . . .
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- Thind isn’t White because “free white person” are “words of common
speech”
- Finding Thind is White would be a shocking result to Whites
- What happened to science?
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- “Is a high-caste Hindu, of full Indian blood, born at Amritsar, Punjab,
India, a white person within the meaning of section 2169 ?”
- Thind argues he’s Caucasian, which is synonymous with white
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- In Ozawa, the court had “held that the words imported a racial and not
an individual test and were meant to indicate only persons of what is
popularly known as the Caucasian race.”
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- In the endeavor to ascertain the meaning of the statute we must not fail
to keep in mind that it does not employ the word ‘Caucasian,’ but the
words ‘white persons,’ and these are words of common speech and not of
scientific origin.
- It may be true that the blond Scandinavian and the brown Hindu have a
common ancestor in the dim reaches of antiquity, but the average man
knows perfectly well that there are unmistakable and profound
differences between them to-day.
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- What we now hold is that the words ‘free white persons’ are words of
common speech, to be interpreted in accordance with the understanding of
the common man, synonymous with the word ‘Caucasian’ only as that word is popularly understood. As so
understood and used, whatever may be the speculations of the
ethnologist, it does not include the body of people to whom the appellee
belongs. It is a matter of familiar observation and knowledge that the
physical group characteristics of the Hindus render them readily
distinguishable from the various groups of persons in this country
commonly recognized as white.
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- What’s the larger meaning of racial pre-requisite cases?
- Classifying groups as foreign makes it easier to deny individuals who
are members of group the equal protection of laws
- Forms part of a larger pattern of white supremacy
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- Asian Americans helped shape law
- Law has shaped Asian Americans
- Asian Americans’ quest for assimilation to “whiteness” has failed
- The citizen-foreigner paradigm
- When Asian Americans are White
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Notes
