E-mail:
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Bruce Ackerman bruce.ackerman at yale.edu
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Abbe Gluck abbe.gluck at yale.edu
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Deborah Pearlstein dpearlst at yu.edu
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Alice Ristroph alice.ristroph at shu.edu
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David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In
American By Birth, Carol Nackenoff and Julie Novkov tell the story of
Wong Kim Ark, whose Supreme Court case interpreted the Fourteenth Amendment so
as to secure the principle of birthright citizenship, especially through
patrilineal descent. Their book is a richly-textured presentation of not only the
twists and turns of that particular litigation, but also other efforts by
Chinese migrants and their allies to contest the various restrictions on their
ability to enter the United States.
I
had the pleasure awhile back to write a review essay on historian Beth Lew-Williams’
book, The Chinese Must Go. Nackenoff and Novkov’s offering should be
read together with Lew-Williams’ book to get a complete picture of this period.
Lew-Williams does the archival work in presenting the complicated forms of extra-legal
violence perpetrated against Chinese migrants as well as the nascent methods of
formal interdiction. I have called these “racial purges” to underscore how the
Chinese removals fell along a broad spectrum of methods for controlling unwanted
populations. I also treat extra-legal removals of Chinese migrants from Tacoma,
Washington, and elsewhere as dark acts of popular sovereignty because they were
defended in such civic terminology, and because these events were ultimately considered
by mainstream figures as coherent expressions of political dissatisfaction,
even if they deplored lawbreaking as a tactic.
Nackenoff
and Novkov remind us that political violence occurred, but they don’t dwell on
it. Instead, their focus is on the action that took place within the formal
constitutional order (i.e., the legal system and in Congress). The authors take
pains to show how advocacy succeeded in reuniting some migrants with loved ones
after they were wrongly deported or prevented from reentering the United
States. The authors also do an admirable job of presenting the backgrounds and
philosophical leanings of the federal judges on the West Coast who are deluged
with thousands of petitions for writs of habeas corpus.
The
Wong Kim Ark case forms the heart of the book. Nackenoff and Novkov render a
vivid account of Kim Ark’s life and his lawsuit challenging the government’s
refusal to allow him to reenter the country. Noteworthy are the ways that both
sides invoke the Dred Scott case and how enduring suspicions of
potentially disloyal people born to non-citizens influence the U.S. government’s
legal position.
Allow
me a few broader observations about the implications of Nackenoff and Novkov’s
terrific book. First, despite a popular tendency to glorify a handful of
decisions that are compatible with a modern sensibility about liberal constitutionalism,
American By Birth actually demonstrates the cultural and political
limits to judge-centered accounts of constitutionalism. Chinese migrants, often
represented by skilled lawyers and organizations looking for test cases, were
able to win some cases and gain reentry, especially when travelers were trapped
by laws in flux and detained by hostile bureaucrats. That’s the good news.
By
and large, however, these wins should be classified as limited instances of
individual harm reduction rather than as evidence that Article III judges can
withstand mobilized sentiment for long. A surprising bright spot for many readers
will be that judges took international law seriously at this time—the U.S.
treaty with China plays a role in several decisions in which judges ordered
relief for migrants. But the potency of this rationale is quickly blunted by
congressional action to exclude unwanted social groups for racial, economic,
and cultural reasons. Judges then fell in line.
The
sudden rise of habeas petitions filed by Chinese migrants also seemed to have a
negative effect on the judicial mindset. Nackenoff and Novkov mention that
Justice Stephen Field grew irate during oral argument in one case, telling
counsel that “it was because the Courts were overcrowded that the second Act
was passed.” He seemed to be searching for a broad-based solution by closing
the courthouse doors so judges wouldn’t have to “give each one of them a
separate trial” if they chose to leave the country.
In
Chae Chan Pingv. United States, Justice Field staked out an expansive
view that Congress’s power over demographic control need not be enumerated in
the Constitution but can be derived by considering deeper theories of
sovereignty. In upholding the Chinese Exclusion Acts, Justice Field also notoriously
endorsed the cultural incompatibility thesis when it comes to people of Chinese
ancestry.
That
Chinese people were perpetual strangers, unwilling to or incapable of adopting
American ways, was promoted by both mainstream figures and the perpetrators of
extra-legal purges as a legitimate justification for eliminating people of
Chinese ancestry from the polity. Field called the Chinese “foreigners of a
different race … who will not assimilate with us” and therefore “dangerous to
its peace and security.” Thus ratified by the Supreme Court, the cultural
incompatibility thesis gained additional favor among the populace and underpinned
the Immigration Act of 1924. And despite the towering achievement of the
Immigration Act of 1965, the logic of cultural incompatibility returns with a
vengeance from time to time—along with associated ideas of popular sovereignty,
national identity, and the right of self-defense.
Second,
despite liberals’ understandable desire to extol Justice Gray’s decision in Wong
Kim Ark for embracing birthright citizenship as a constitutional baseline, the
truth is more complicated. As the work of my colleague Kris Collins
illuminates, citizenship for children born abroad to Americans remains deeply
contested and unequally regulated. Moreover, the perspectives expressed in
Justice Fuller’s dissent, whether grounded in notions of civic republicanism or
racist sentiment, have not been defeated. As Nackenoff and Novkov point out
toward the end of their book, the Wong Kim Ark case merely serves as a
“substantial obstacle” to immigration restrictionists rather than the end of
debate. It didn’t even settle the matter of who gets to decide the basis and
limits of political community.
In
subsequent struggles over citizenship, some have continued to advance “original
intent”-style arguments that the Fourteenth Amendment should be understood only
to solve the problem of citizenship for former slaves and for no other group. Others
have pushed a textual reading of the “subject to the jurisdiction thereof”
clause in a way that excludes non-citizens, claiming that Wong Kim Ark
is either wrong, can be distinguished, or perhaps be overruled through ordinary
legislation or executive order.
Nackenoff
and Novkov recognize that these conversations persist, but defend the dominant reading
of the Fourteenth Amendment, calling constitutional amendment “the only likely
path to eliminate birthright citizenship.”
They
might be correct, but if so this brings me to a third and final observation: Given
how difficult it is to make formal changes to the Constitution when people
disagree with Supreme Court interpretations, intensification of policy battles
in related areas would seem to be the predictable result. In that sense,
judicial settlement of fundamental disputes can only redirect conflict, and not
always in desirable ways. What this probably means for the foreseeable future is
that we will be locked into deeply polarizing battles over border policy and the
resources available to the children of unauthorized migrants as proxy fights over
belonging.
Robert L. Tsai is Professor of Law and Law Alumni Scholar at Boston University School of Law. You can reach him by e-mail at rltsai@bu.edu.