Abstract
The phrase “My ancestors came here legally,” whether deployed by Sarah Palin, Colin Powell, or anonymous web commenters, represents a widely accepted yet fundamentally inaccurate understanding of the history of immigration and law in America. Remembering the Chinese Exclusion Act helps us consider the absence of national immigration laws for the first post-revolutionary century, and thus highlights the historical meaningless of concepts such as “legal immigrant” and “illegal immigrant” during that era. It also connects us to the ethnically and nationally discriminatory laws that developed from the 1882 Exclusion Act through the 1920s Quota Acts (and lasted until the 1965 Immigration Act), under which “legal” and “illegal” were still far from consistent or stable categories.
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Notes
Interestingly, the 1870 Naturalization Act, an element of Federal Reconstruction that naturalized Africans and their descendants living in the United States, purposefully did not include Asian Americans in its purview (limiting its effects to “white persons and persons of African descent”), despite the urging of Senators Charles Sumner and Lyman Trumbull that it do so. That detail makes clear both the era’s rising xenophobic and nativist sentiments (which contributed directly to the Exclusion Act) and the ways in which naturalization debates have often paralleled questions of immigration and restriction; calling the Exclusion Act the first national immigration law, as I do here, should not prohibit us from recognizing and analyzing such earlier and ongoing links. I am indebted to the aforementioned anonymous reviewer for the connection to the 1870 Act.
Many historians believe that this provision was directed more broadly at single Chinese women; the vast majority of early Chinese arrivals had been men, and a part of the decade’s fears of the “yellow peril” was the idea that women would join those men and start to create more settled American families as a result. This interpretation would certainly make the Page Act a more direct predecessor to the Chinese Exclusion Act, but does not change my broader point about the specificity of the targets of these early laws.
Some states did during this pre-1882 era have laws related to particular classes of arrivals, such as free blacks in many Southern states; in my analysis those laws were passed in response to and tended to focus much more on internal American migration rather than on immigration, and they were not at all consistent across different states, but they could be added to this paragraph’s lists. For a contrasting argument that these state laws do in fact constitute a prior history of national immigration law, see Gerald Neuman, “The Lost Century of American Immigration Law,” Columbia Law Review 93 (1993): 1833, 1889.
The full text of the brief Act is available at this website (among others): https://www.mtholyoke.edu/acad/intrel/chinex.htm.
The 1880 census reported just over 105,000 Chinese Americans; the 1890 census reported about 60,000 more, which means either that they all came in the two years prior to the Exclusion Act or (more likely) that at least some of them came after it was implemented.
There are, of course, bumper sticker slogans such as “Think: It isn’t illegal yet.” While I take the point of those sayings, I don’t believe, in the absence of such restrictive laws, that anyone would describe him or herself as “thinking legally.” Moreover, to connect this idea to the argument with which I conclude this paragraph, it would be nonsensical in the absence of such laws to claim “I choose to think legally.”
A provision, it’s worth noting, that renders Colin Powell’s aforementioned point about his parents’ “legal” arrival from Jamaica in the 1920s as inaccurate as most other such statements.
Article I, Section 9 does allow the importation of slaves to continue until 1808, when it would be (and was) outlawed. But to my mind the slave trade is an entirely separate issue from immigration, for obvious reasons.
References
Daniels, Roger. Guarding the Golden Door: American Immigration Policy and Immigrants since 1882. New York: Hill and Wang, 2004.
Gerber, David. American Immigration: A Very Short Introduction. Oxford: Oxford University Press, 2011.
Hing, Bill Ong. Defining America through Immigration Policy. Philadelphia: Temple University Press, 2004.
Lau, Estelle. Paper Families: Identity, Immigration Administration, and Chinese Exclusion. Durham: Duke University Press, 2006.
LeMay, Michael. From Open Door to Dutch Door: An Analysis of U.S. Immigration Policy since 1820. New York: Praeger, 1987.
Moloney, Deirdre. National Insecurities: Immigrants and U.S. Deportation Policy since 1882. Chapel Hill: University of North Carolina Press, 2012.
Salyer, Lucy Elizabeth. Guarding the “White Man’s Frontier”: Courts, Politics, and the Regulation of Immigration, 1891–1924. PhD Thesis, University of California, Berkeley, 1989.
Soennichsen, John Robert. The Chinese Exclusion Act of 1882. Santa Barbara, CA: Greenwood, 2011.
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© 2013 Ben Railton
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Railton, B. (2013). What the Act Can Teach Us about Immigration History and Laws. In: The Chinese Exclusion Act: What It Can Teach Us about America. Palgrave Pivot, New York. https://doi.org/10.1057/9781137339096_2
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DOI: https://doi.org/10.1057/9781137339096_2
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