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Excerpted From: Lea VanderVelde and Gabriel J. Chin, Sowing the Seeds of Chinese Exclusion as the Reconstruction Congress Debates Civil Rights Inclusion, 25 Asian Pacific American Law Journal 29 (2021) (226 Footnotes) (Full Document)


VanderVeldeAndChinReconstruction is heralded as a period of state building and reflection on some of the highest and most progressive ideals of racial equality and worker autonomy. Debates during this critical time in the nation's history were formative in determining who was an American, what rights Americans were entitled to, and establishing constitutional guarantees. While generations of scholars have written about this important history, few have focused on Reconstruction texts as they refer to Chinese people. Yet for all the commitment to these ideals in the speeches of the Reconstruction Congress, there are distinctly unique and troubling currents beneath the surface when some members of Congress referred to the liberties, rights, and privileges of Chinese in the United States. At the time, many Chinese were involved in building the nation's railroads, and their rights in the states as workers and denizens were also at issue. Examining the Chinese as members of an ascribed racial category and as workers in the American Republic offers an important, under-recognized contretemps to Reconstructions' progressive and reformist discourses on race and labor.

This article examines that dynamic and concludes that while Reconstruction attempted to create a legal regime in which African-Americans would enjoy greater political and economic rights, it simultaneously laid the foundation for the exclusion of Chinese and other Asians from the United States, a policy marking the Chinese as a caste with an ascribed set of characteristics limiting their liberties in American society, a designation that would extend from 1882 to 1965.

During the Reconstruction debates, members of Congress invoked ideas regarding the Chinese that were prevalent in the nineteenth century--that the Chinese were lesser men, and that the Chinese could not assimilate as Americans. But while these comments reflected public opinion in the debates, the legislators were engaging in something more significant and lasting than public opinion, which could be fleeting. They were amending the Constitution to include issues of racial equality, self-worth, and a phrase they often returned to: “the republican form of government.” In that regard, their perceptions of the place of Chinese people in American society informed their constitutional vision, for better or worse.

The Chinese were an “other” about whom little was known, yet they were invoked in more abstract debates about race, religion, equal protection, citizenship, and immigration as Congress attempted to craft a more perfect Constitution. As a category of people, a category more stereotyped than realistic in the minds of Congressmen, Chinese people were invoked sometimes in support of and sometimes against arguments on important measures to reform American democracy and promote free labor. While Congressmen debated grand abstractions such as the universality of human rights, the Chinese were subordinated as “other” in ways that European immigrants, for example, were not. While Congressmen debated ideas about worker independence, workers of Chinese ancestry were subjected to a restricted set of occupations, sometimes under work gangs, in ways that other American workers were not. And while considerable efforts were made in this reform-minded Congress to raise the formerly enslaved to a position of dignity and equality, a discussion that spilled over into the conditions of other peoples, there were pitifully few references to assuring the Chinese were treated similarly. They were not raised up to a position of social and economic parity and political liberty. The ironic result is that one can perceive in these debates--some of the most progressive in American history--the seeds of what would become Chinese exclusion and the Chinese Jim Crow a decade later. In these debates, the seeds were planted by West Coast congressmen and further nurtured by those conservative congressmen who clung to notions of white supremacy despite the nation's general impetus to universal race equality.

While the rights, privileges, and immunities of the Chinese were occasionally center stage, they were more often invoked at the margins of other far-ranging debates as a counterexample sometimes in progressive and sometimes reactionary ways. The subject of Chinese rights was more central in the debates over immigration, citizenship and suffrage. As constitutional scholarship inherently returns its gaze to the origins of the crafting of that fundamental charter of American liberty, it is important to consider the place of the Chinese in these debates. In the words of historian Paula Giddings, it is important to note “when and where [they] entered.” in the debates. Approaching the texts of these very fundamental Congressional debates this way has several benefits. It delineates the implicit, which is: that by invoking the target group by name, that group is not generally included when speaking more generically about those people who form the norm of the population. It also permits us to identify and isolate exactly where--that is, in the service of what kinds of arguments--the speaker chooses to pronounce the name of that group as differentially situated in the polity.

We use the Reconstruction debates for our primary texts and to that end we have developed a digitized database to facilitate this inquiry. By digitizing the Congressional Globe for the entire 12-year period of Reconstruction, from the 38th to 43rd Congress, we are able to find references to the Chinese that were previously overlooked. We are also able to see the debates as a whole, as a continuum taking place over a decade. We can see how certain subjects and certain words became more or less prevalent and took on different inflections over time. In general, we can conclude that references to “the Chinese” increased markedly over this period. Through a comprehensive database like this, we are indeed able to observe when, where and with what significance the Chinese--whether residents, immigrants, workers, or subjects of the Chinese Empire--entered the discourse of Reconstruction. This article focusing on discrimination against the Chinese is the first of two articles based on this database method.

In 1866, when renowned legal theorist Francis Lieber wrote to Congress to oppose taxes on foreign literature, he contended: “The object of our laws cannot be Chinese exclusion.” Notwithstanding Lieber's admonition, it seems that an object of our laws sometimes was exactly that. And even when the Chinese were not the principal object of the law, they could be invoked to limit the universality of many of the entitlements being debated. For example, the hard labor performed by African-Americans in the South and Chinese in the West also presented itself in labor market terms. Free labor advocates had long made two arguments about slavery's effect on free working men. Advocates argued that slavery, in that it was unpaid, brought down the wages of working men who demanded to be paid. Free labor advocates also argued that the demeaning conditions under which slaves labored, without a freehold of their own, subject to the beck and call of their masters, negatively affected the dignity of labor and laboring men everywhere. These key criticisms of slavery similarly applied to the low wages received by Chinese workers. Their difficult and constrained working conditions similarly threatened the working men who formed the base of the Republican Party. Yet, as arguments were made to “elevate” the Freedmen's plight, raise their wages to reasonable levels, and include the Freedmen among the larger society of citizen workers of the republic, there was a stunningly marked silence on the topic of improving Chinese workers' wages, working conditions, autonomy, access to citizenship and access to lands in the United States.

Ultimately, the Reconstruction debates reveal several tensions and even contradictions in the decisions Congress reached. One is a desire to expand the rights guaranteed to Freedmen without completely rejecting racial nationalism. Another is a desire to increase immigration generally, and trade with China, amid a growing ambivalence about immigration by Chinese people. That ambivalence was reflected in the Burlingame Treaty of 1868, which enthusiastically promoted trade between China and the United States and guaranteed Chinese the freedom to immigrate, but simultaneously denied them the right to become naturalized U.S. citizens. The very piece of law which permitted and even invited Chinese to immigrate also warned that they could not become part of the American polity, part of us, the People of the United States.

Part I provides a theoretical alternative to the way discrimination is generally addressed. We propose that the idea of caste more appropriately suits the circumstances here, where different peoples are subordinated vis-à-vis the dominant group, white men, but accorded different and not necessarily linearly arranged statuses within that social and legal order. Part II briefly outlines the unique legal and political situation of Chinese Americans before the Civil War. While the borders were largely open, the general prohibition preventing nonwhites from naturalizing reflected anxiety about immigrants of color. This revolutionary-era prohibition was not designed for Chinese people, but it became a barrier keeping Chinese residents from naturalizing and receiving the benefits that flowed from citizenship. Part III explores the range of ways that the Chinese were invoked in the Congressional debates during Reconstruction. The Chinese were discussed in overarching arguments about race more generally, both in racist and anti-racist terms. Early in the Reconstruction debates, Chinese people were rarely mentioned at all. As trade with Asia increased, however, and American policies were designed to further increase this trade, attention turned to the presence and status of Chinese people in the United States. In their speeches, Congressmen from the West increasingly brought attention to the Chinese people resident in those regions. California Congressmen coined the idea of the “Chinese question.” Thereafter, the topic grew in prevalence. But within Congress itself, in contrast to the attention given to the rights and privileges accorded to Freedmen, there were few who advocated directly for the interests of Chinese people. Congressmen from western states and territories repeatedly introduced anti-Chinese sentiment in increasingly racist terms, raising the call for Chinese exclusion. And Western Congressmen found allies in the conservative Congressmen who advanced arguments of white supremacy. Part IV identifies how these racial attitudes played out with regard to specific legislation. Importantly, the anti-Chinese argument prevailed in connection with many pieces of civil rights legislation, which were tailored to exclude the Chinese. Two prominent examples of this are the restrictions on Asian immigration in the Coolie Act of 1862 and the exclusion of non-citizens from major land ownership programs like the Homestead Act.

[. . .]

Commercial developments during Reconstruction brought the United States ever closer to the nations across the Pacific. However, when Chinese began to take advantage of the open borders that then existed, California Senators and Representatives brought their prejudices to the U.S. Congress and framed the idea of the “Chinese question.” This took place even as Congress was amending the U.S. Constitution and considering the status of the Freedmen, another racially vulnerable group. The Reconstruction debates demonstrated a variety of views on treatment of Chinese, including the universality of rights and race neutrality. But, ultimately, those advocating full rights for Chinese residents did not prevail. Instead, Reconstruction was a missed opportunity to derail more effectively the growing anti-Chinese sentiment that eventually led to exclusion. Despite speech after speech against white supremacy, the Chinese in the United States remained legally constrained in a distinctive set of caste limitations. One of the great ironies of the Congressional debates then, was that in this grand period of social uplift, awash with inspiring mission statements of bringing about an egalitarian republic--a democracy in its best sense--the Chinese were excluded from the notion that a rising tide would raise all boats.

Lea VanderVelde is the Josephine R. Witte Professor of Law at the University of Iowa College of Law. May Brodbeck Humanities Scholar 2019-20. Email: This email address is being protected from spambots. You need JavaScript enabled to view it..

Gabriel J. Chin is the Edward L. Barrett Jr. Chair and Martin Luther King Jr. Professor at the University of California, Davis School of Law. Email: gjchin

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