Excavating the "Chinese Wall": Towards a Socio-Historical Perspective on the Development of United States Immigration Administration and Chinese Exclusion / Laws Harsh as
Lau, Estelle T., Northwestern University Law Review
LAWS HARSH AS TIGERS: CHINESE IMMIGRANTS AND THE SHAPING of MODERN IMMIGRATION LAW. By Lucy E. Salyer. University of North Carolina Press, 1995. Pp. 338. $17.95.
In 1893, the Supreme Court issued its seminal immigration decision Fong Yue Ting1 which held that a nation has the right to deport aliens lawfully residing within its borders. Justice Brewer dissented, but reaffirmed a sovereign nation's right to exclude. He stated that a national government has control of all matters relating to other nations and therefore has the power to build, what he called, a "Chinese wall." He argued that "the national government has the power to build a Chinese wall around our borders and absolutely forbid aliens to enter."2
At the time that Justice Brewer wrote his dissent he may not have been aware of the particular accuracy of his choice of metaphors. Burgeoning research now recognizes the irony of Justice Brewer's predictive choice of imagery by demonstrating that the United States' immigration administrative processes and Chinese immigrant identities are products of their mutual confrontation and interaction. We have started to find that with the pronouncement as a nation of our right to exclude and to deport, we truly began to build a Chinese wall.
Lucy Salyer's book, Laws Harsh as Tigers3 provides a needed, though limited, starting point in our archeological excavation of this Chinese wall. In this Essay, I describe how Salyer's book appears to challenge traditional legal scholarship, but disappoints in its actual focus. I then suggest the need for sociological and historical explanations of the development of U.S. immigration administration. Finally, I argue that to understand how enforcement policies developed we must turn our attention to how laws become part of our lived experience.
II. AN UNCOMFORTABLE FIT
Salyer sets out to explore restrictive immigration policies aimed at the Chinese and their enforcement in the United States between 1891 and 1924.(4) Such a project fits uncomfortably at best within what has been considered traditional legal scholarship because the legal academic community marginalizes both the subject explored and the techniques applied: the book focuses on Asian Americans-specifically the Chinese-and sets out to explore the social and legal history of their exclusion. Indeed, because Salyer's book lies at the intersection of these dual marginalities, it is especially vulnerable to disregard. Thus, it is particularly important to focus our attention on Laws Harsh as Tigers and extract as much as possible from it.
Strangely enough, despite the fact that this book may be perceived by the legal academic community as relevant only to those few who are interested in the Chinese community or social history, my central complaint about Salyer's project is that she does not go far enough with her initial premise. Indeed, despite her desire to provide a social and legal history of the San Francisco Chinese during the exclusion period and of the rise of administrative discretion in the context of immigration control, Salyer ends up discussing the interaction between the judiciary and the Immigration Bureau. In particular, she focuses on doctrinal development, finding within the jurisdictional struggles between the federal courts and the Immigration Bureau, the rise of administrative discretion that contributed to the implementation of restrictivist objectives. At heart, her story is one of doctrinal contestation and interpretation consistent with traditional legal analysis.
Salyer begins by observing that while ample attention has been paid to the campaigns to enact restrictivist legislation, little consideration has been paid to how these laws were actually enforced. She contends that this oversight is especially important given current anti-immigrant sentiment and the legislation now being enacted. Responding to this dearth in scholarship, Salyer wants to provide an institutional explanation, based on the idea that enforcement of immigration policies may be better understood by looking at the influence of structure on the enforcement of policy. …