We can be more effective in our arguments about the Chinese Exclusion Act of 1882 and the Japanese American internment during World War II.
I have a personal perspective. I teach argument. Specifically, I teach legal argument. Even more specifically, I teach legal argument in the areas of procedure and immigration. And in addition, I specialize in research on Asian American legal history, such as the Chinese Exclusion Act and the Japanese American internment. I also happen to be Chinese American, the child of immigrants; my wife, Japanese American, whose late parents were locked up for no good reason (her father was released to work with the United States Army as a cartographer).
All of that is to say I am immersed in the issues that are presented by the current controversy over airport detention as part of a so-called “Muslim Ban” program. I claim no expertise. But I have delved into the details of the precedent and considered how it might be applied or avoided.
From that vantage point, I offer a thought about the news of the day. I realize I retain that abiding belief, despite circumstances, in rule of law, that reason ultimately will prevail. We have no choice but to hope.
My students sometimes believe that my political opinions are the opposite of what they are. I take that as a good sign. It means, contrary to what some critics of professors might suppose, that I am not attempting to indoctrinate them into anything other than the best techniques of legal argument. I am not surprised by their error, because among the most important points I have to offer, for their training as advocates, is that they must be able to see the world as their adversary does, if only to anticipate what her next move likely will be. Dismissing opposing counsel, or her client, as stupid or bigoted is not an advisable strategy, since it will lead only to underestimating their ability to persuade others ― who will not be unaware of your condescension. I usually take the side against my students, sparring with them to ready them for what they will face.
Here is what I have to share. We have to contend with the proposition that The Chinese Exclusion Act and the Japanese American internment were wrong, but they are distinguishable from the current situation. Please don’t misunderstand me: while I am fine being attacked for the positions that I do hold, it is not productive for anyone to assault me for opinions I am not expressing. To the contrary, I want to clarify for my friends what they are confronting, to make them more successful in their cause, which I support. I am explaining an attitude out there, not endorsing it.
The Chinese Exclusion Act and the Japanese American internment targeted particular demographic groups. These formal rules used race, as it was deemed then, or ethnicity, as it has come to be called. But the decisions were not general, about all immigrants or all people with ancestral relations to enemy nations, respectively; they relied on immutable, ascribed characteristics that were stigmatized and scorned. From those features, of ancestry and lineage, inferences were made about probable behaviors, who would constitute unfair competition in the labor market or turn out to be saboteurs and spies during military conflict.
The Chinese Exclusion Act was promoted by agitators who included immigrants themselves. They were open in their ideology: Manifest Destiny meant the continent was reserved for white Christians. Their anger extended beyond California, where most Chinese were to be found. On a national level, political candidates sought to outdo one another in describing the harsh measures they would enact against Yellow Peril.
The Japanese American internment was not an anomaly brought on by the December 7, 1941 “Day of Infamy” at Pearl Harbor. The anti-Chinese campaign turned into an anti-Asian crusade. An “Asiatic Barred Zone” was the result. Japanese American were restricted in everything from intermarriage to land ownership to fishing licenses, well before America entered “the good war.” The internment affected about 120,000 people, including men, women, the elderly, and children alike, two-thirds of them native born, even though Japanese American soldiers would become the most highly-decorated units in our nation’s history for their heroics in the European theatre, fighting for our flag even as those wearing the same uniform pointed guns at their families.
Since the passage of the Chinese Exclusion Act in 1882 and Executive Order 9066 authorizing the Japanese American internment, the federal government has come around. Both the Senate and the House passed expressions of regret recently, which are about as much an apology as they ever offer, for the Exclusion. Presidents of both major political parties have said the internment was misguided and unnecessary, and Congress in 1988 authorized monetary redress for those who lost their liberty, equality, jobs, and possessions.
In the polite consensus, then, each of these episodes settled into a status as negative examples ― what we as a nation should not do again. They might have been regarded as shameful proposals beyond the pale, not to be condoned much less celebrated, at least in mainstream political discourse. Yet they also have been invoked positively in explicit terms. No doubt they present parallels to what is happening today.
People who accept it assume an analogy is all that is needed. The Chinese Exclusion Act and the Japanese American internment were ineffective on their own terms and mass civil rights violations as well. So anything resembling them cannot be contemplated.
Yet we are too confident of our own opinions. Some do not accept the premise. They have no problem with the precursors of exclusion and internment, or their minor qualms can be overcome by the shibboleths of national identity or national security. Laying out how the contemporary Executive Order on immigration from certain predominantly Muslim nations logically resembles exclusion and internment scores no points with someone who would have voted for those policies.
There is something else that I have heard said, however, which must be addressed: the notion that the Chinese Exclusion Act and the Japanese American internment were wrong, but that the various ideas being pitched about the war on terrorism, or for those who style it as such, a war on radical Islam, are not the same. The crux of legal reasoning is the back and forth of comparing and contrasting. It is not smart to assert in a conclusory manner that two things are the same when some see them as clearly different, or vice versa. Analysis is needed.
People I respect, or whom I once respected, have made the claim. I want to listen to them. Here is what I hear.
They are making a classic move in Western philosophy. Instead of arguing about an abstract principle — whether or not it is proper to generalize about groups of people, rather than treating individuals as individuals — they are arguing about concrete facts and consequences. Thus they, in good faith, can say that what was done to Chinese to bar their entry and eject them, and the Japanese Americans to incarcerate them and subject them to second-class status, was improper. They concede that the Chinese who wanted to come and stay and the Japanese Americans who were by and large assimilated and virtually to a person loyal were good, decent, and potentially productive members of the democratic society.
But this new threat, they suppose, is not the same. That is their key distinction: some prejudices are baseless; others have a basis. A profile is justified or excused if it is plausible and limited. (If you want to be fancy about the two schools of thought, they are deontological ethics versus consequentialist or utilitarian models. This is not a new debate.)
I must reiterate: I reject their rationalization. I highlight it, as more of an observer than a participant in the ongoing controversy. It requires rebuttal. My friends, who allude eloquently to the Chinese Exclusion Act and Japanese American internment, your argument is excellent. I am persuaded. But your argument is only the beginning. Others are not persuaded.
To win the case, you have to fight both fights. Social justice movements have that practical quality. They involve more than one problem. To say an action is racist (or religiously intolerant) is to say not only that race (or religion) is at the core of the impulse but also that such animus is not morally permissible. These are two separate claims. They are weakened when they are confused.
One fight is about principle. That fight is about whether to group people together, for administrative convenience and out of urgency.
Another fight is about facts and consequences. That fight is about whether the grouping is related to reality, whether the benefits outweigh the costs.
I spend my days working with first-year law students. I help them develop the ability to fight using the law and the facts. That means taking on all the challenges that are presented, not only half of them.
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