Ghosts in History?
May 31st marked the last day of Asian Pacific American Heritage Month. To celebrate, the Pan Asian Lawyers of San Diego recruited other local bar associations for some lawyerly fun – reenacting Chy Lung v. Freeman, 92 U.S. 275 (1875), otherwise known as the “22 Lewd Chinese Women” case. The Asian American Bar Association of New York had fashioned a script from historical transcripts, briefs and their own research. It struck me that this particular case and these 22 women did so much for the rights of immigrants, but except for a bunch of lawyers keeping that knowledge alive, the impact seemed lost to the ghosts of history. I especially feel that we aren’t learning from history in light of recent hateful rhetoric aimed at particular religions and cultures by some in the public sphere, and the ordering of raids and deportations of vulnerable mothers and children by this administration.
I represented AILA’s San Diego Chapter in this reenactment but wholly admit that I participated because I really wanted to shout in Chinese and tell people that I was a part of the “22 Lewd Chinese Women.” Sadly, I was not cast as one of the women. But as I listened to the direct and cross-examinations, the quick condemnations of an entire population of people seemed so similar to what is going on today. Back then, society questioned the motives of Chinese women entering the country. It was enough for someone, with no expertise in the culture, to say that their clothes resembled those worn by prostitutes because they were gaudy with large sleeves. That’s all it took to affirm the notion that they were whores and for a California court to order the women be returned to China.
The California statute was drafted to prevent foreign women found to be lewd and debauched to enter the state, but in practice it targeted Chinese women. It was a backhanded approach to stem the flow of Chinese to the state. Unhappy with the Circuit Court’s holding that the statute was unconstitutional, California Congressman Page garnered support for his Page Act restricting immigration from “China, Japan, or any Oriental country.”
The “22 Lewd Chinese Women” case led to the Circuit Court’s analysis that all people, not just citizens, were owed the proper course of law when addressing issues of the deprivation of life, liberty or property. The court noted the statute’s differing use of the word “citizen” when addressing the “privileges and immunities clause” versus the use of the word “person” when addressing due process rights.
The U.S. Supreme Court’s holding in Chy Lung v. Freeman stemmed from a Commerce Clause argument but alluded to the protections afforded by the Fourteenth Amendment. Despite this precedent, today’s government seems unable to learn from history, as shown by the admission by ICE that they are instituting a new wave of raids with the express purpose of deporting Central American families and young people.
My concern, really my fear, is that history will indeed repeat itself when century-old decisions that all people are entitled to due process are ignored and the most vulnerable of populations faces mass, expedited deportations without these protections or their day in court. The protections for the Chinese, under Chy Lung v. Freeman, were stymied by visceral racism and fear of an entire population that led to the Congressional passage of the Chinese Exclusion Act of 1882, the Geary Act that renewed it for another 10 years eventually leading to its permanency in 1902. It would be four decades before it was repealed.
Justice Kennedy, in his opinion for another case involving a state overstepping their authority (Arizona v. United States, 641 F. 3d 339), wrote, “Immigration policy shapes the destiny of the Nation.” He went on to write that the federal government’s power to regulate immigration comes with a responsibility and “the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.” My hope is that the federal government and the public will look back on cases like Chy Lung and engage in a thoughtful, rational civic discourse so the protections laid by past case law and the Fourteenth Amendment don’t become ghosts in history.
Written by Tammy Lin, Member, AILA Media Advocacy Committee