Wednesday, August 26, 2020

John Bingham in Japan

Gerard N. Magliocca

I want to flag a new book that may be of interest. Samuel Kidder's Of One Blood All Nations discusses John Bingham's long tenure (from 1873-1885) as the United States Ambassador to Japan. In my book on Bingham, I did not do full justice to this phase of his career. Kidder is in a much better position to do so as a former diplomat with considerable experience in Japan.

An important fact that I learned from the book is that Bingham was strongly opposed to the Chinese Exclusion Acts of 1882. His criticism rested partly on the harm that the Act would inflict on America's standing in Asia, but also partly on the fact that the exclusion was racist. The latter points, of course, tie in nicely with Bingham's authorship of the Equal Protection Clause.


I referenced something about books in the last thread and someone replied that I was mistaken ... because the person didn't read closely what I said.

As to this book, sounds interesting.

Interestingly, the early post-Fourteenth Amendment SCOTUS understood that it covered anti-Asian discrimination. Yick Wo is a very interesting case.

Chinese Exclusion got upheld, under what we now call the plenary power doctrine.

The Chinese Exclusion Act, of course, was offensive. The problem courts face on immigration is that distinctions among nationalities are basically universal in immigration law. For instance, look at how we treated Cubans for over 50 years. It was a very dumb policy. But it also represented a foreign policy judgment of Congress and Presidents- they wanted to punish Castro. So if you apply the normal 14th Amendment analysis to it, you end up very quickly in a situation where the Supreme Court is taking tools out of our foreign policy toolkit. (Obviously a preference to Cubans over similarly situated immigrants of other ethnicities would fail conventional equal protection tests.)

I am not sure whether Bingham thought Chinese Exclusion was just dumb and racist (it was) or unconstitutional. But that's why our doctrine evolved the way it did.

I have no interest in BIngham's supposed universalism, without mention of Perry and the "opening" of japan.

There used to be a running gag over at the Volokh site because this guy would show up and bring up Bingham (and some crazy originalist theory) every time the Fourteenth Amendment was mentioned.

What is the timing of Perry/"opening" of Japan?

Bingham's involvement in the 14A happened in 1868.

Looking at the "look in" sample available at Amazon, the author of this post is quoted right away in the book. Here is a discussion of the author of the book talking about the issue covered in the book:

The discussion in part notes that Bingham worked to revise "unequal treaties" [apparently the author's phrasing] that the author of the piece says were "were generally humiliating, unfair, and disadvantageous to Japan."

The discussion was written a few years ago by Kisaki Sagara, U.S. Embassy intern. But, one would have to look at the book, I would say, to determine how the whole matter is covered, including Bingham's complete views.


"Following 200 years of seclusion from the outside world, Japan opened its doors to regular trade and discourse with other countries about 15 years prior to Bingham’s arrival."

Your source is only making it worse. I'm even less interested in a book by an American embassy official.


This comment has been removed by the author.

If you don't want a book by an embassy official, which is a label that involves thousands of people with a range of views, it's up to you.

The summary cites the injustices of "opening," and the portion quoted in the last comment is a summary of someone else. The summary also notes that Bingham worked to revise "unequal treaties" [apparently the author's phrasing] that the author of the piece says were "were generally humiliating, unfair, and disadvantageous to Japan."

One will have to get the book, if one wishes, to see what exactly it says though I think it would cover the Perry business etc. since it is so relevant.

Japan was opened literally at gunpoint. That's not subject to debate.


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