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Excerpted from: Gabriel J. Chin, The Plessy Myth: Justice Harlan and the Chinese Cases, 82 Iowa Law Review 151-182, 151-167 (October, 1996)(176 Footnotes)

For a century, the vision of racial equality expressed in John Marshall Harlan's dissent in Plessy v. Ferguson has captured the legal imagination in a way matched by few other texts. Even today, the symbolic power of Harlan's rejection of segregation of African Americans and whites in New Orleans streetcars is rivaled only by the Reverend Martin Luther King, Jr.'s I Have a Dream speech and Brown v. Board of Education itself. William Bradford Reynolds was probably close to the mark when he wrote that "[i]n any consideration of the Constitution, Justice Harlan's dissent in Plessy invariably emerges as the definitive statement of the proper construction of the 14th Amendment." Indeed, the NAACP Legal Defense and Education Fund's fabled Brief on Reargument in Brown made a similar claim. Today, "liberals" and "conservatives" alike invoke the special authority and power of Justice Harlan, a man hailed by G. Edward White as a "visionary prophet." On the issue of affirmative action, scholars such as Reynolds, Charles Fried, Sidney Hook, Terry Eastland, and William Bennett claim that the rule of Harlan's dissent would prohibit race-conscious programs, as do Justices William Rehnquist, Potter Stewart, Antonin Scalia, Clarence Thomas, and Anthony Kennedy. An impressive array of scholars takes a contrasting view. T. Alexander Aleinikoff, G. Sidney Buchanan, Garrett Epps, Charles Lawrence, Cass Sunstein, Kathleen Sullivan, and Laurence Tribe suggest that Harlan's words, correctly understood, support race-conscious programs. The Justices also debate the relevance of the Plessy dissent in cases concerning discrimination against homosexuals and redistricting; FN25] Harlan's words have even been appealed to on the question of whether Americans of African ancestry should be called "Black" or "African American." Little wonder that all sides covet the endorsement of Harlan's dissent. Like Reverend King's dream that his "children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character," Justice Harlan's expression of the idea of legal equality is as evocative now as when the words were first written: [I]n view of the constitution, in the eye of the law, there is in this country no superior, dominant ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. Even if the "color-blind" principle is too formalistic to support the suggestion that Harlan was the first critical race theorist, it is nevertheless clear that he had an appreciation of the subordinating effects of legal messages: "The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law." The achievement of Harlan's dissent is even more remarkable by its accurate forecast of the absurdities that could be fostered by Plessy's reasoning. Harlan's opinion also reflected a deserved confidence in the power of his analysis; even in 1896, even writing alone, he correctly predicted that judicial fiat could not forever impose a policy that was fundamentally wrong. Though Harlan passed away more than eighty years ago, he has not left the scene. Biographies continue to appear, and academic lawyers remain deeply interested in him. One recent law review article, for example, asked whether he had an African American half-brother. Other justices, including Harlan contemporaries Joseph McKenna and Horace Gray, also had long tenures on the Court, but no one particularly cares about them or their family situations. While Harlan also wrote memorable dissents in Lochner and the Civil Rights Cases, and was otherwise a competent member of the Supreme Court for more than thirty years, he is remembered as "the great dissenter" in large measure because of his triumph in Plessy. There is a tiny fault in Harlan's Plessy dissent, a slip. After arguing that the government should guarantee "equality before the law of all citizens of the United States, without regard to race," the next paragraph begins like this: There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race [cannot].... What can this possibly mean? . . .Harlan's comments about the Chinese in the Plessy dissent strike the modern ear as racist. Harlan, of course, was well aware of the discrimination imposed upon Chinese by the national government; they could neither immigrate nor become citizens, disadvantages imposed on no other race at that time. Harlan must also have known that this federal discrimination perpetuated a system of disadvantage imposed by the states. Aliens "ineligible to citizenship," a category that was essentially limited to Asians, were subject to various legal disabilities, such as prohibitions on entering licensed professions and owning real property. However, Harlan's reaction to disadvantages imposed on Chinese by law was not that they should be invalidated according to his color-blindness principle. In this respect, Harlan's response not only failed to comport with modern arguments about the anti-subordination purpose of the Fourteenth Amendment, it did not even satisfy the notion of simple formal equality. Instead, Harlan made what seems to have been an early "underinclusiveness" argument similar to that found in modern equal protection analysis: the law was irrational because it burdened one despised minority but not another, and the one that was not burdened was even more worthy of segregation from Caucasians. It is conceivable, of course, that Harlan's comment was a regrettable but isolated faux pas, rather than an expression of an abiding viewpoint. Indeed, in some cases, Harlan voted in favor of Chinese litigants. Harlan's voting record as a whole, however, shows that his animosity towards Chinese was fixed and strong. A. Application of the Citizenship Clause to Chinese Harlan's vote in United States v. Wong Kim Ark was potentially the most damaging to the Chinese and other immigrants. In that case, the Justice Department tested its theory that the Citizenship Clause of the Fourteenth Amendment did not apply to persons of Chinese racial ancestry born in the United States. Wong Kim Ark, a native San Franciscan, was refused admission to the United States upon his return from an overseas visit on the ground that he was not a citizen, and could not be admitted as an immigrant because of the Chinese Exclusion Act. Harlan agreed with the Solicitor General that Chinese cannot become citizens simply by being born in the United States, and that, because Chinese were racially ineligible for naturalization, there were no circumstances under which people with Chinese blood could become Americans. The Justice Department could have rested its argument solely on the technical principle of international law which, it claimed, rendered Chinese not fully "subject to the jurisdiction" of the United States. Instead, the government appealed explicitly to race: For the most persuasive reasons we have refused citizenship to Chinese subjects; and yet, as to their offspring, who are just as obnoxious, and to whom the same reasons for exclusion apply with equal force, we are told that we must accept them as fellow-citizens, and that, too, because of the mere accident of birth. There certainly should be some honor and dignity in American citizenship that would be sacred from the foul and corrupting taint of a debasing alienage. Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of the importance and dignity of citizenship by birth? If so, then verily there has been a most degenerate departure from the patriotic ideals of our forefathers; and surely in that case American citizenship is not worth having. A majority of the Court was unpersuaded, holding that Wong Kim Ark, and by implication, other American-born Chinese, were indeed citizens of the United States. The consequences of the contrary holding would have been far-reaching. It might have been reasonable to anticipate that Harlan would be with the majority, given the understanding of the Citizenship Clause he announced in Plessy: "[T]he recent amendments of the supreme law," he said, "established universal civil freedom, gave citizenship to all born or naturalized in the United States, and residing here, [and] obliterated the race line from our systems of governments." When faced with the prospect of Chinese citizens, however, Harlan, along with Chief Justice Fuller, balked. Evidently persuaded by the reasoning of the Justice Department, they determined that American-born Chinese "cannot become citizens nor acquire a permanent home here, no matter what the length of their stay may be." Harlan and Fuller could have relied solely on niceties of international law, but, like the Justice Department, they felt compelled to note the danger of "the presence within our territory of large numbers of Chinese laborers, of a distinct race and religion, remaining strangers in the land, residing apart by themselves, tenaciously adhering to the customs and usages of their own country, unfamiliar with our institutions, and apparently incapable of assimilating with our people." Echoing the language of the brief for the United States, Harlan and Fuller concluded that "[i]t is not to be admitted that the children of persons so situated become citizens by accident of birth." B. Right To Enter the United States In Harlan's view, immigration law was no more bound to follow the color-blind principle than was the law of citizenship. This conclusion is apparently supported by a draft argument Harlan wrote for his son, James, who was preparing for a college debate. Harlan's suggestions included the following remarks: [W]e are not bound, upon any broad principle of humanity, to harm our own country in order to benefit the Chinese who may arrive here.... Now, if by introduction of Chinese labor we [jeopardize] our own laborers, why not restrict immigration of Chinese. The Chinese are of a different race, as distinct from ours as ours is from the negro.... [S]uppose there was a tide of immigration ... of uneducated African savages--would we not restrict their coming? Would we desist because they are human beings & upon the idea that they have a right to better their condition? ... [Chinese] will not assimilate to our people. If they come, we must admit them to citizenship, then to suffrage--what would become of the country in such a contingency.... Under the ten year statute [i.e., the first Chinese Exclusion Act] we have an opportunity to test the question whether it is safe to let down the bars and permit unrestricted immigration--The Chinese here will, in that time, show of what stuff they are made. Our policy is to keep this country, distinctively, under American influence. Only Americans, or those who become such by long stay here, understand American institutions. There is, of course, the literal point that these views were only an argument; Harlan did not adopt them as his own. Surely, though, Harlan would not have offered arguments he believed ridiculous or absurd; at a minimum, Harlan's assistance to his son suggests that Harlan believed plausible the claims that neither African savages nor Chinese drones were fit for United States citizenship. Consistent with his argument, Harlan joined decisions of the Court supporting the right of the United States to exclude members of particular races because of their perceived defects. In Chae Chan Ping v. United States, the Court upheld a ban on Chinese immigration. The Justices did not claim that they were simply submitting to the Constitution's allocation of the immigration power to the legislative branch; instead, they indicated that they supported the action. The Chinese, the Court explained, "remained strangers in the land, residing apart by themselves, and adhering to the customs and usages of their own country. It seemed impossible for them to assimilate with our people, or to make any changes in their habits or modes of living." Accordingly, Congress could exclude the Chinese in self-defense: To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us.... If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects. Harlan apparently did not participate in Fong Yue Ting v. United States, where a majority of the Court upheld the constitutionality of a statute providing that any Chinese person in the United States was presumed to be unlawfully present, unless he or she could prove lawful presence with a federal registration certificate. During this period, no other aliens were required to register or otherwise prove lawful presence. However, Harlan's frequent citation of Fong Yue Ting betrayed no lack of sympathy for its reasoning or result. Harlan's work in interpreting the nuances of the regime of exclusion laws was more mixed after the constitutionality of racial exclusion was settled. For example, he twice joined decisions of the Court finding in favor of Chinese deportees on the facts. He interpreted some provisions of the exclusion laws in favor of Chinese immigrants. Finally, Harlan joined a unanimous Court in holding that the Constitution required indictment and jury trial before a deportable Chinese person could be criminally punished for being in the United States. More often, though, he construed ambiguous sections of statutes and treaties against Chinese litigants. In Li Sing v. United States, for example, in the face of an explicit equal protection argument, Harlan was apparently untroubled by statutes which disadvantaged Chinese. The statutes at issue put the burden of proof on Chinese in deportation proceedings, and, in an exception to the policy of race-neutrality in the witness box created by the Civil Rights Act of 1870, required testimony by at least two credible non-Chinese witnesses to establish lawful presence in the United States. C. Due Process in Immigration Perhaps Harlan's most significant contribution to immigration due process jurisprudence was in Lem Moon Sing v. United States. While taking pains not to intimate that the decision below was substantively correct, Justice Harlan upheld a statute forbidding judicial review of administrative determinations that Chinese at the border should be excluded, even though the petitioner in that case was a resident of the United States returning from a temporary overseas visit. In a series of decisions, this rule was held to apply even to those excluded persons who claimed to be citizens of the United States. Lack of judicial review was not the only hurdle faced by would-be Chinese immigrants; under regulations applicable only to Chinese exclusion proceedings, would-be entrants were not permitted to communicate with counsel, or anyone else, until after a closed exclusion hearing, and only witnesses designated by the authorities could be heard. After the hearing, the would-be immigrant could consult with counsel, but only two days were allowed for filing a notice of appeal to higher administrative authorities, and only evidence introduced at the initial, closed hearing could be considered on appeal. There was no provision allowing the Chinese person to gather testimony or any compulsory process for obtaining witnesses. Harlan's conclusion that returning resident aliens had no more rights than persons seeking to enter the country for the first time is no longer the law; modern decisions of the Supreme Court hold that returning residents are entitled to procedural due process when applying to reenter the United States, at least after temporary travel abroad. When Harlan did reach the merits of particular claims, he often found compliance with due process in situations which now seem outrageously unfair. In The Japanese Immigrant Case (Yamataya v. Fisher), a would-be Japanese immigrant in exclusion proceedings claimed she had been denied due process by the immigration authorities. Harlan agreed that even in immigration proceedings the government could not "disregard the fundamental principles that inhere in 'due process of law.' " Part of due process was an "opportunity, at some time, to be heard." Astonishingly, the fact that the proceeding was conducted in English, a language unfamiliar to the defendant, did not strike Harlan as a constitutional infirmity. If the appellant's want of knowledge of the English language put her at some disadvantage in the investigation conducted by that officer, that was her misfortune, and constitutes no reason, under the acts of Congress, or under any rule of law, for the intervention of the court by habeas corpus. We perceive no ground for such intervention,--none for the contention that due process of law was denied to appellant. Harlan's prescience failed him here; judges now reject the idea that a hearing in an unfamiliar language satisfies the requirements of due process of law. Similarly, in United States v. Jung Ah Lung, the Great Dissenter used his rhetorical powers to criticize the majority's interpretation of a statute that required Chinese residents of the United States to produce a government certificate authorizing re-entry after a foreign visit. Because Jung Ah Lung's certificate had been stolen, the majority held that other government records could be examined to establish his identity and right to enter. Harlan disagreed, concluding that only the certificate itself was sufficient evidence under the statute: "If appellee's certificate was forcibly taken from him by a band of pirates ... that is his misfortune. That fact ought not to defeat what was manifestly the intention of the legislative branch of the Government." Other than his vote in Wong Kim Ark, perhaps Harlan was not significantly more hostile to Chinese than many others of his time. However, none of his judicial contemporaries are hailed in the same way as racial heroes. In any event, little in Harlan's record on the Court contradicts one commentator's conclusion regarding the meaning of the Plessy dissent's remarks about Chinese: "Apparently, for Harlan, it was legitimate to preserve superior and inferior ranks of persons in the country by denying certain classes of people access to citizenship. And in Harlan's understanding, these discriminations could be made tenably on the basis of race." It is true that many Chinese were not citizens, while virtually all persons of African descent in the United States in 1896 were citizens. But if the government can pick and choose which races to make citizens, then Dred Scott v. Sandford was entirely sound. If this view is correct, the Fourteenth Amendment is a mere policy decision, not the expression of a great moral truth; it is worthy of no more deference in the face of changed circumstances or opinions than, for example, the fifty-five mile-per-hour speed limit or the Eighteenth Amendment.