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tv   Landmark Cases Supreme Court Landmark Case Yick Wo v. Hopkins  CSPAN  July 23, 2020 8:43am-10:23am EDT

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>> well, it said -- the law said that all new laundries had to be constructed out of brick or stone, but existing laundries, which were made out of wood, which they all were, practically all were, could only continue to operate if they got a permit from the city. and this is what led to this charade, really, where they approved all the permit applications that white people made, say for one, and they denied all the chinese. so in a way this is not really about fire safety. it was one of quite a number of municipal ordinances that were passed to harass the chinese. if we make life so miserable
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for them, if we make it impossible for them to earn a living, maybe they will leave. >> so enter lee wiyick, who is e of the proprietors, he had been running it for 20 years. >> his name was not yick wo, his name was lee yick. that was the name of the laundromat. when the original case was filed, no one bothered to fix it that they didn't get the guy's name right, which showed you how much they cared about people living in that jurisdiction. he was a laundromat owner and he refused to pay a fine of $10 because he was denied this permit. he was then sentenced to a term in prison because he wouldn't pay this fine. he filed what's called a writ of habeas corpus to try to get himself freed. the california supreme court rejected his appeal and then it went to the u.s. supreme court where the u.s. supreme court
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reversed and said you have to let mr. lee yick go free. this california law is arbitrary and deprives him of his rights under the 14th amendment. >> he was representing a number of chinese laundry people, he really took the case on, but, in fact, there were a group of people protesting this. when i thought about this at the time, these are people who are not in their own country, and not a country where they have the same rule of law, yet they chose a legal path to protest. i'd like to have both of you comment about what that means about their confidence in the american system. >> the chinese were very savvy. they were organized, and they knew the laws of the country they were living in. it may not have been the laws from their own country, but they knew they were living in a foreign country, and they wanted to play by the rules, so they knew the laws. mr. lee, for 22 years when he ran that laundry, he was duly licensed, had his laundry
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inspected every year according to the law. they know the rules. they learn the rules, and they want to play by the rules. so, now this case was not a random case. it was a test case. the chinese were organized just like the naacp brought test cases like brown and other cases to test the constitutionality of laws that they believe are discriminatory. the chinese also brought test cases, and they were well organized. they were backed by an organization called the chinese six companies, which was a coalition of the merchant leaders of the community that represented chinese according to their home district. these are like mutual aid associations that all immigrants have based on their hometowns. is while the chinese, the leaders were -- had money. they also were supported by the chinese consul, which also supported these cases. so they challenged these
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cases in the courts and they also did that because they did not have the vote. the exclusion laws said that chinese could not naturalize as citizens. they had no political muscle whatsoever because they could not elect people to congress. so they used the courts as their strategy. >> the case bears also the name hopkins. who was hopkins? >> hopkins was the sheriff at issue who is responsible for enforcing the fire law. not too much is known about him. i think mae raises a very fair point. there were several cases brought by these chinese immigrants challenging these various policies, and they basically lost them all. yick wo was one of the few cases that actually ruled in favor of the chinese immigrant. in a sense it was a very smart test case. it wasn't testing the power of congress to deny entry. it wasn't testing the power of congress to deport people. it was testing the power of the state to deprive someone of a
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property interest, a liberty interest. what was at issue? these were small business owners who had a lawful business, wasn't bothering anyone, they were safe. and then this arbitrary regime was put in their place. this was action argument that would appeal to the fairly conservative supreme court, a liberty interest in having a right to pursue an honest living. that is where they actually prevailed. the other cases they all lost. >> you're watching our discussion of landmark case called yick wo. from 1886, which still has implications today because it said that the constitution's due process guarantees under the 14th amendment apply to citizens and non-citizens equally. we'll be going to your calls, and then in the next segment we will learn how this case went to the supreme court in 1886. what the court looked like then, and how it was decided. but as we get into that, let's listen to a current member of the supreme court, anthony kennedy, as he talks about the importance of the yick wo case. >> this law, assuming that it was passed for a legitimate purpose, and i have a big
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question about that, was applied with an evil eye and an unequal hand, a metaphor that bothers me a little bit. it's kind of a mixed metaphor. it should have been with an evil eye and a malicious hand, i think, poetically to make it the same. but he said it was discriminatory in its application, and he had a lot of evidence for that. the number of -- the whites that were given permits, the number of chinese that were denied, a very strong case. it says that even though the law is valid, or neutral, fair on its face, if, in application, it's being applied in order to hurt a particular race, it's void.
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it's a tremendously powerful principle. that's why the yick wo case is cited today. >> justice anthony kennedy on the importance of yick wo on our society today. let's begin with your calls, we're beginning with jim in omaha, nebraska. welcome to landmark cases. >> caller: thanks for taking my call. i noticed when you first started your show you talked about the second sentence of the 14th amendment. you said noncitizens and basically because of what it says as far as persons twice, it said nor shall any state deprive any person of life, liberty or property. and i know the other part is you said any person within its jurisdiction, equal protection. but the first sentence of the 14th amendment clearly states "all persons," so you can use that persons, born or naturalized in the united states, and subject to the jurisdiction thereof, that a lot of people don't really understand what that is, are citizens of the united states and of the state wherein they
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reside. so my question to your guests there, see if they can talk about this, is we use the same phrase person to describe what a person -- a citizen of the united states is. so i'm thinking of the persons later on are considered citizens too. these amendments in our constitution, and the constitution as a whole, are for citizens of the united states, and not for noncitizens or individuals that come across our border. so i was wondering -- >> thank you, jim. why don't we pick it up from there. thanks for your call. >> the constitution, as i knocked my microphone over to get out my pocket constitution, provides that all persons born or naturalized become citizens, but it also says that all persons, whether a citizen or not, are given certain rights, rights of life, liberty and property, and equal protection
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of law. for example, if you're a resident alien you cannot contribute to a campaign. if you're a resident alien you cannot bear arms. there are certain rights that do not apply to noncitizens. for the most part, citizens and noncitizens within the united states, according to the supreme court, are given equal protections of the law. >> you talked about this before, but we have a tweet from doc darnel, were some chinese immigrants educated in the law in order to file on the launderer's behalf. >> they all hired white lawyers to argue their cases. >> interesting. next is the call from james in california. hi, james, you're on in our discussion of yick wo v. hopkins. welcome >> caller: thanks for taking the call. and thanks, c-span for putting on these shows. they're quite terrific. my question is rather specific, not related so much to the law. but the guest spoke about chinese coming over here to work in the gold fields. i live in an area that is a played out, basically, it's a
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ghost town in the sierras. and how many chinese, percentage, if you know this, were able to make a successful living in gold mining? very few people did, i think. i think most people who came went into something else, again, chinese going into laundries and restaurants, the white people going into all sorts of other things. very few people made money in gold. did any or did a lot -- did a decent percentage of chinese make money in the gold fields? >> i think they did about as well or as not as well as anybody else. >> which means not so well except for a few lucky people. >> onto the supreme court, at the time the case came to the court, grover cleveland was president of the united states. but the supreme court itself looked very much like it did in our last case, the civil rights cases, the chief justice was morrison wait who had been
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nominated by ulysses sfrmgts grant, and the associates justices were all republicans, except for one. they were samuel freeman miller, a lincoln appointee. he served the second longest tenure, 1863 to 1897. william woods, joseph bradley, horace gray, an arthur appointee, stanley matthews who wrote the decision in this case, garrfield appointee, john marshall harlan, a haste appointee, and the johnson democrat appointee was samuel blacksford. what should we know about this court in general? >> as a whole in the civil rights cases, the court was fairly consistent that congress lacked the power to provide additional protections for the freed men, that case was one dissenter, john marshal harlan, who said that laws discriminating against the
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freed men were badges in instances of slavery. he thought the 13th and 14th amendments prohibited this form of racial segregation against african-americans. notice justice har lin did not write anything separately in yick wo. a few years later in plessy versus ferguson, harlan again dissented arguing that exclusionary laws is unconstitutional. his famous part of the opinion while we're able to give protection for the freed men, there is a people, a race different than ours, that is chinese people. harlan who was very much progressive with respect to equality for african-americans didn't seem to feel quite the same way about chinese people. on this court there wasn't much of a friend for racial equality for people from china but this decision was a unanimous decision for lee wick. >> for some just learning about
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these cases, we have a companion book available. it is $8.95, our cost, and we'll get it to you real quickly if you're interested. you can go to c-span's website "landmark cases." tony morrow, a veteran supreme court reporter has written all of the synopsis of the case and tells you more about the time it was argued and also its current legacy. this case was argued on may 10th, 1886. at that point the supreme court was meeting in the part of the capital called the old senate chamber. i think we've got a picture of that room, which is a very ornate room, still available and still in use in the united states capitol. what's unusual about this, there was no oral argument and they depended on briefs. why is that? >> well, back then, the court heard a lot more cases than it does today. and it simply wasn't feasible to have every single case argued. in fact, these parties from california, it was quite an arduous journey. to be frank, i'm sure mr. lee yick wanted to get out as quickly as possible.
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they didn't mind having the case resolved on the papers. the court back then wasn't as big as it is today. i think it's very common to apply 20th century lens to 19th century supreme court. it wasn't until the warren court in the '60s that people starred caring what the supreme court said. these cases were relevant, but for the most people went onto their business. there were no c-span specials. about the supreme court in the 1880s. >> and no c-span, of course. >> the arguments made on behalf of the laundry owners focused on what? what were the points they made? >> the laundry owners tried to say these laws are not being enforced in any sort of consistent manner. the key point is arbitrariness. generally, if you want to have a permit, you say you need to have proper ventilation for this laundromat. it has to be clean, it has to have good equipment, right? the law at issue in this case in san francisco had no standards. it just said you apply for a permit, period.
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and they said that there's no standard against which these permits should be granted. and that arbitrary enforcement itself was unconstitutional. >> take some more calls and then we'll hear about the arguments made by the city's lawyers. next up is robert in middletown, new york. hi, robert, welcome. >> caller: good evening, i'd like to thank the guests for taking their time and sharing their insights into this important case. it's clear that in yick wo, contrast to the previous now interpretations of the 14th amendment, they held 14th amendment applied to noncitizens. however, not until much later in cases like grizwold v. connecticut. that yick wo came to stand for fair and equal government. however, the holding in yick wo was no help in preventing discriminatory ruling in cases like plessy v. ferguson. why do the panel members believe this is so? >> thank you. >> well, i think yick wo has -- i think it has actually more than one meaning. one of the reasons why the court
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passed it was to extend the rights of the 14th amendment to economic rights, the right to pursue an occupation or a trade or a living. and that is also why we have, i think, part of the wording for person. because a legal person need not be a human being. legal person could be a corporation. so there was a lot of interest in this case as a property case, as my colleague here mentioned before, the right to have a business, but i think it also has come to stand as a case about discrimination and about arbitrary application of the law. it's very -- i think it's very telling that in the decision, the justices said that even if it's not explicit in the law, if its application is manifestly discriminatory, it is discriminatory. >> send us a question by
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tweet @c-span, #landmarkcases. your comment for that caller? >> the yick wo case took on a different meaning in the 20th century. if you look at yick wo in 1886 and only a couple years later you have the plessy versus ferguson. which have held a separate but equal, you say, how can the court do both. how can you say, if you have an evil eye and an uneven hand, in the same breath as separate but equal, right, that's why a lot of scholars suggest that yick wo wasn't really a race case. that this had nothing to do with the plaintiffs -- i'm sorry, the defendants being chinese. the fact that you had an arbitrary violation of a property interest, that could have played a huge role in this case. if you look at it that way, the chronology makes sense. but you're absolutely right, today, and until the 1960s, yick wo took on a very different meaning, that when you have a
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facially neutral law that has an improper motivation, the courts can then still set it aside because of that behind it. >> a little bit more on the operation of the court. chief justice morrison wait reached a unanimous decision in this case. was that something he pushed for in almost all the cases he heard? >> i haven't done a thorough study of the waite court. how unanimous the decisions were. back then there wasn't as much dissenting as there was today. they were very busy. today the supreme court here is going to be 80, back then they heard hundreds of cases a year. it was tough writing a lot of dissents. you'd often have a justice saying i dissent with no written opinion. i thinks they was -- this was par for the course. there was no vigorous disagreement. in other cases there were dissents, and they were vocal about them. but here everyone was on the same page. >> so what did the arguments on the side of the city of san francisco, what were they all about? >> well, the city tried to argue
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that the chinese laundries were unsafe, efforts to tie it to the opium industry, which was fairly prevalent back then. these were not credible arguments because the legislation at issue didn't actually determine if the laundromats were safe, that is, all the white laundry owners were having the exact same wooden structures as the chinese laundry owners, and there wasn't any meaningful attempts saying why these were safe or unsafe. this wasn't a pretext, class legislation designed to protect a favored group. not a law premised on the health and safety. >> in our notes we said the city submitted photographs of the laundries, photography was really pretty nascent back then. can you tell us about that? >> it was actually fairly rare to have photograph attached to a brief, but they were trying to show the judge this was a problem. justice field, one of the members of the court, had been on the california supreme court, probably had firsthand experience, and didn't blanch at all at this. i think
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he understood that this was not a -- this was a good legal argument, but not the true reason why these permits were being denied. >> mae ngai, a twitter comment from epwv law, were other definable immigrant groups as likely to resort to the courts as were the chinese? if not, was there a cultural tradition in their native country that made the chinese immigrants more prone to seek redress in the courts? >> i don't think the chinese recourse to the courts has anything to do with their cultural background. it was a tactic they adopted because, as i said before, they did not have access to the vote. and they studied the law, and they knew that they were being discriminated against. they saw justice through the courts. there are other cases where immigrant groups went to the courts for justice. i'm thinking of myer v. nebraska, which is a case of a
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german language school, so that's one case i can think of offhand. can you think of others, josh? >> well, the leading example, which mae mentioned earlier, was the naacp defense fund, grew up in the 1930s, 40s and 50s to try to chip away at the separate but equal doctrine. one of the reasons why the various immigrant groups had to turn to the courts was even with the franchise, right, even with the franchise, they still lacked the political power, and the courts at the time were viewed as reenforcing the representation of these politically powerless racial and ethnic minorities. it was an important channel they could seek redress where the democratic process was not helping them. our next question comes by phone from john in west palm beach, florida. hello, john. >> caller: yes, hello. i haven't watched this series much because i had to turn it off when you first started. it seems like you always have these very liberal cases with
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liberal commentators. ms. mae -- am i saying your name correctly? >> mae ngai. >> caller: i thought that in chinese, the first name is last, and the last name is first. am i mistaken? >> in china, but i'm an american, so my last name is ngai. >> john, do you have a question for us? >> caller: i had a comment, and then a question. i'll be brief. you made a comment earlier about how the white men wanted to drink, and they weren't following orders as well as the chinese. that's kind of a bigoted statement, considering i'm of irish descent, and a lot of irishmen were heading west when they were building the railroad. my question is this, if the chinese were here illegally, how in the world could they be opening up businesses? now, i know this is the 1880s, and it's not like today.
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but i don't hear anyone mentioning that. i mean, was that argued in the supreme court? >> okay. so to your first comment, that's not my opinion. that was what was said by the railroad companies, why they had trouble holding white labor. that wasn't my opinion, that was the opinion of the railroad companies. and they were not really targeting irish as an ethnic group. they were targeting former gold miners who had more of, shall we say, an adventurous spirit rather than wanting to work hours on a clock, you know, for the railroad. to your second question, well, the chinese exclusion law is not passed until 1882. so before that time there were no restrictions on chinese entry, so there were no -- they were not illegal. they were not undocumented. they only needed to pass through an interrogation and receive a document after the exclusion law was passed.
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and they were mightily interrogated. they sometimes had to sit for days or weeks before immigration officials who asked them questions to see if they were legitimate or not, you could come in if you were a merchant, if you had a certificate issued in china that said you were a merchant. the first exclusion law was aimed at laborers. so if you were a laundry owner, and if you were here before 1882, you were not illegal. and if you came after 1882, you qualified to be a merchant. so these people were not here without authorization. >> and would you explain, once again, they could not apply for citizenship, they were restricted from that? >> that's right. the exclusion act of 1882 suspended immigration of chinese laborers for ten years, and it excluded all chinese from naturalization. >> this is a variation of that question from matt smith on twitter, how were noncitizens
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treated under the law prior to yick wo. >> well, the most obvious example was the scott decision covered on your program. chief juice tis tawny held people of african descent could never be citizens of the united states and lacked the privileges and immunities, the rights citizens are entitled to. this raised the paradox who was a citizen of the united states before the 14th amendment. the constitution didn't specify who was a citizen. it was very much an open question. section 1 of the 14th amendment sought to reverse that and said all persons born or naturalized in the united states or subject to the jurisdiction thereof are citizens of the united states in the state in which they reside. if you had a child in the united states, that child became a u.s. citizen. but the parent could not because the parent had to appeal to congress for naturalization. that's why the exclusionary acts excluded all foreign subjects from ever becoming u.s. citizens.
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>> next is a call from brandon watching us in south bend, indiana. hi, brandon. >> caller: hi there, i'm a first time watcher, first time caller. >> great. glad to have you. what's your question? brandon, are you there? >> caller: yes, i'm sorry. looking back at history in a case such as this, involving chinese immigrants, which there are still chinese immigrants, they're going south korean, north korean immigrants, and we're going to have immigrants in this country, that's what it was built on. how do we apply these lessons that we learned from this case to -- >> thank you very much. that's something we do want to talk about in this program. how do we apply the lessons in this case to our society today? >> i think it's really important that americans understand that the constitution, the protections in the constitution
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apply to all persons who are living in the united states regardless of their citizenship status, and i might say that that's the same thing with the bill of rights, the first ten amendments. they speak of persons also, not just citizens. the right of free speech, the first amendment, that applies to all persons. so i think we have a tradition in this country that goes back to the writing of the constitution, including the reconstruction amendments, that recognizes that there's a large population in the u.s. that are not all citizens, not just the former slaves or african-americans, but also people from immigrant backgrounds. >> well, speaking to the specifics of this case, mari lane on twitter asked about a certain aspect of history. we may not have touched on. they write, there was a treaty with china that guaranteed privileges and immunity the for chinese subjects in the u.s. 1868, that is a part of the
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story we should touch on. >> that's a very important part of the story. in fact, the plaintiffs in yick wo, when they made their argument before the court, many of their arguments actually concerned the treaty, that under treaty rights chinese had the right to pursue a business and an occupation in the united states. the burlingame treaty was signed in 1868. he's an interesting person. he was a free soiler in massachusetts who was sent over to china in 1861. he was appointed by lincoln to be the american representative to china. and when he was there he was kind of appalled at the way britain and other european powers treated the chinese. and he was not a fan of gun boat diplomacy and what he called taking them by the throat. and he wanted to have a more friendly relationship with china. and so he lobbied other ambassadors in peking, and he
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was made friends with the chinese ministers. and in 1867 china appointed him to be their representatives to negotiate better treaties with western countries. and burlingame led a group of diplomats, and also included a british diplomat, a french diplomat, and several chinese ministers to the united states. and then they went on to europe. so the burlingame treaty that was signed, sometimes called the burlingame-seward treaty because it was negotiated with seward from lincoln's cabinet, it was called the treaty of friendship and amity, friendship and trade, and it had a provision in it that there would be free migration between the two countries, nationals of each country would enjoy entry and privileges and equal protections in each country. it did not include the right to naturalize, but it did include
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the right to immigrate and the right to pursue an occupation or a trade, and to have the same protection as other people in the country. >> so it seems like an important thing to mention in the arguments because of this treaty the chinese actually had special status that other immigrants might not. how did it figure in the arguments? >> well, this treaty was one of the first treaties. there was a follow-up in 1880. between 1868 when the first treaty was signed and 1880 when the second treaty was signed, sentiments in the united states turned against chinese-americans. the 1880 treaty allowed the government to put restrictions on the importation -- on the immigration of chinese aliens. it also let them do some other things, one of which was it still protected the privileges and immunities of chinese immigrants. and, in fact, in the yick wo decision, the supreme court cited this treaty of 1880 saying
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that even though he's here, he still is protected by virtue of this treaty. the international aspect of this case actually figured prominently in the supreme court's decision. >> well, we heard the arguments on both sides for this case. and the opinion was assigned to justice stanley matthews. can you tell us anything about him? >> not a particularly well-known justice, no, in fact -- >> i can tell you a few copy points. let me do that and then you can add to it. former republican senator from ohio, nominated by hayess in 1881 and rejected, renominated by president garfield in march of 1881. and confirmed by a 24-23 vote in the senate, the narrowest ever for a justice. it says on my notes yick wo was his biggest contribution to the court. >> i can't think of much else justice matthews did, although this opinion, which was significant in that it recognized a few major points, it recognized that the due process clause applies to
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nonsequence, that equal protection clause applies to noncitizens. it even made reference to famous civil rights act of 1866 which said people cannot be denied access to certain rights based on their skin color. so this opinion looped together a lot of major themes of the time. >> here's just a little bit of justice matthews decision. it was a unanimous decision. he wrote it on behalf of the entire court, and here's what -- some of what he wrote. "no reason for it is shown and the conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong and which, in the eye of the law is not justified. the discrimination is, therefore, illegal and the public administration which enforces it is the denial of equal protection of the laws and a violation of the 14th amendment of the constitution." more of that is discriminatory enforcement, the law itself be fair on its face and impartial in its appearance. yet, if it is applied and
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administered by public authority with an evil eye and an unequal hand. so as practically to make unjust in illegals discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution." mae ngai, what was the country's reaction to this decision? do you know? was it a big deal at the time? >> i'm not sure that it was. was it a big deal? i don't think people really remarked on it that much. the chinese were happy. justice field was happy because he had long pursued an agenda of economic rights, and restraining governments interference in people's economic rights. but i don't think it got a lot of attention. >> we found newspaper editorials in california that weren't so happy about it which probably would not be surprising in the context of the papers at the time? >> right.
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california had long been nursing a grudge against the chinese and they had many, many laws against chinese and discriminating against them. and, you know, it's a time when chinese exclusion had been recently passed and there's still a lot of agitation about getting rid of the chinese, and the chinese exclusion laws will be upheld by the supreme court. it's not until 1889 so there is still a fair amount of uncertainty going on. >> we'll talk more about that in our next segment. but before we leave this part of it, the weight court overall and you did touch on this, when we read those provisions of the decision, it's not consistent with other things coming out of the court at that time. can you help us understand the court's mentality, psychology, thinking about these kinds of cases? >> so, this case was decided at the very beginning of what's often called the progressive era. before this era, states usually had a laissez-faire approach to economics. they would let businesses do
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what they wished. but during this time the progressive movement to regulate health, safety, welfare, legislation. and the biggest opposition to this era were the courts, both state courts and federal courts, which in the 1890s and early 1900s, courts began to find various pieces of economic legislation unconstitutional that deprive people of their property or liberty interests without due process of law. this became known as substantive due process many decades later. yick wo fits well within that chronology in that you had a business owner who was being arbitrarily denied the right to continue a business that he had run for two decades. if you try to read it as a racial equality case, it sticks out like a sore thumb. it was only a few years later you had plessy and a lot of other cases that looked away at blatant racial discrimination, right? if you have -- if the court is striking down a law based on
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evil eye, how can they pull something which is actually legitimately separate? i think the economic liberty approach helps to fit this case in with the broader era. although there was a fairly early on opinion in this movement. >> welcome to our conversation about yick wo v. hopkins. case that dealt with the 14th amendment application to noncitizens. next up is sonya in philadelphia. you're on. >>. >> caller: hi, thanks for taking my call. i guess you already mentioned that at the time when the decision was handed down, there wasn't really a lot of reaction from, you know, people outside of the chinese community. but i'm wondering like down the line, since san francisco at the time and california was becoming so multi cultural, if it helped that it was there at all because if there hadn't been a strong chinese community and strong asian society, they might not have been able to have the resource s to get this case to court. and at a time when a lot of new states were still needing to
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join the u.s., did it really kind of snowball and the effects became clear that aliens would have more rights like in the coming of the 20th century, or would kind of gone unnoticed if it happened somewhere else as not multi cultural? >> thank you very much. there is much of this for both of you. let's start with mae ngai. >> it's hard to think of california as being multi cultural in the late 19th century. it's overwhelmingly white. asians or chinese at this point, there aren't really that many other asians yet, make up about 10% of the population. and the black population is fairly small. unfortunately, most native americans had already been wiped out. so, i don't know if we could really say it's a multi cultural population.
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and the chinese are almost uniformly despised by the white population. they don't have many allies in san francisco. sad to say. >> alas this case was a bit of a blip. in the years and decades following yick wo, the supreme court upheld exclusionary policies aimed directly at chinese immigrants. indeed, the original 1882 act which prohibited chinese immigration for ten years was renewed another ten years, and then made ultimately permanent. so until 1965, with the immigration and nationality act, you had basically a blanket ban on chinese immigrants. so, this case is very much an outlier, perhaps a celebrated outlier, but it didn't do much good until almost half a century later. >> well, you've just given a synopsis of things we're going to delve into in our last half hour. we have about 35 minutes left to go in our discussion of yick wo v. hopkins. facebook says, with so many preaching about laws and rights,
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history is an easy way to show how far we have come. there had to be a law to protect noncitizens from citizens. think about that. most laws are created to build a society where one man is not allowed to wrong another man without repercussions. it's called being civil. next call is from bill in new york city. hi, bill, you're on. welcome. >> caller: hi, yes, thank you so much for doing this. my question is, does this -- does this extend to united states territories like guam? and when did that happen? and also does it extend to, you know, united states consulates, people working there who are from a foreign country working under, you know, in consulates? and also prisoners at guantanamo. i'm sure there are different rules that govern those, but does this extend to united states territories or wherever americans are in control?
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>> so, it's actually a very complicated question. i'll take each piece in turn. the short answer is the constitution does not apply in u.s. territories abroad. you mentioned guam, american samoa. there were decisions called the insular cases. these cases held that people born abroad are not citizens by birth. and to this day, if you are born in guam, you are not a natural born citizen. you are a citizen by statute. you get citizenship at birth, but you are not a citizen by virtue of the 14th amendment. as far as u.s. citizens living abroad, anywhere a u.s. citizen goes, the u.s. government has to protect them. if you're a u.s. citizen in japan and you commit a crime you are entitled to a jury trial. there is a famous case about that. the final part, does the constitution apply at guantanamo bay. this is a decision, 2008 case, where the supreme court held that the writ of habeas corpus actually runs to guantanamo
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because it is part of the territorial sovereignty of the united states. that is a dubious holding from justice kennedy who spoke a few minutes earlier. he's not one to criticize mixed metaphors, but justice kennedy actually cited yick wo that noncitizens do get rights even though they are outside the boundaries of the united states. >> any more for that question? >> well, you know, when united states acquired the territories it did after the spanish-american war, puerto rico, philippines being the two major ones, there was a question posed by these insular cases as josh referenced which were mostly custom cases, did you have to pay duty on goods imported from puerto rico into the united states and the way that the question was framed in the popular press at the time was, does the constitution follow the flag? what the supreme court said was, well maybe. we get to decide when it does
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and when it doesn't. so, what parts of the constitution applied abroad to the territories was actually quite arbitrary. in the philippines, for example, people could not -- did not have the right to a jury trial and they were not citizens, they were not even citizens by statute like they would be in puerto rico. they invented a new category called the national who is neither an alien nor a citizen. >> joe is in michigan. hi, welcome. >> caller: hello. was the chinese seclusion act ever tested in the courts? what happened? what was the result? >> yes, and yes. so, the question was were the chinese exclusion acts tested in the court and yes, they were upheld. there were a number of decisions, one called fong fong yu teng in 1883, this considered whether a chinese person needed to obtain
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a certificate of residency to maintain his residency in the united states. and the courts upheld this. another case chay chan ping, the supreme court upheld these exclusionary policies. the yick wo is the outlier, the only case where the chinese person won. in all the other cases involving immigration and china, there were victories for the united states government. >> let's take a call and then come back and spend more time with that. chuck in alexandria, louisiana. hi, welcome. >> caller: thank you. i'd like to say whoever came up with the idea for the show, they need a pay raise. and my question is how does rulings from the 1800s affect rulings today? are they used a lot or have there been enough rulings in the 1900s to where they're not the rulings in the 1800s aren't really studied much? and i'm assuming this is what law clerks do, and i'll wait for your answer.
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>> we are going to learn that there have been about 125 citations. just spend a moment on that. >> i was a former law court. yes, you do deserve a pay raise. you're doing a wonderful job tonight. the yick wo has been cited more than 150 times generally for this idea that even to face -- i'm sorry, even if a statute is neutral on its face courts are able to look behind the statute and find the motivation. in the case of lawrence v. texas which considered texas's ban on, justice o'connor wrote a concurring opinion where she said whether a sodomy which is neutral both in terms of effects and application violates a constitution, that is whether or not the sodom y applies to gays and heterosexual alike, the court can still decide.
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this is cited for the broader proposition than it was decided in 1886. >> well you said this was the only case that chinese won. >> not the only one. >> the first big one they won. we'll put it that way. thank you. did life change for the chinese immigrants in san francisco after this? >> no. it got worse actually, notwithstanding the decision in yick wo, because with the exclusion laws being passed in 1882, it didn't end there. there was actually an uptick of violence against chinese because the racists and the nativists wanted chinese thrown out of the country. so there was the worst violence in chinese in the 19th century happened in the 1880s. >> there were massacres, the most famous in rock springs, wyoming n 1885 where nearly 30 chinese were killed. people who worked in the coal mine, 75 houses were burned down, the mob mutilated bodies
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and tortured them. it was absolutely horrific all over the west coast there were lynchings and mobs that drove people out of town, sunset resolutions, get out by sunset, burningings in chinatown, people attacked everywhere. things got a lot worse before they got better. >> and did the law help to protect them at all? were any of these people prosecuted for these acts that they committed against the chinese? >> occasionally there would be arrests, but in general they were not prosecuted. in the rock springs case that i just mentioned, there were whites who were arrested -- well, first they had a very hard time arresting anybody because nobody would be a witness to say, you know, who were the suspects. nobody was ever convicted in that case. >> specifically do you know what happened to the chinese laundries since they were the heart of this? were they able to continue their
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business? >> they did continue, they did continue. and chinese laundries sprung up all over the country. new york city had a lot of chinese laundries in the early 20th century. >> so, josh, you told us from a legal perspective, more laws kept piling up that would try to insulate the white majority public from the effects of chinese immigration. and you made reference to this case, but the geary act was the one that was examined in the fung yu ting case in 1883. here's a little bit of what the geary act did in 1892. expanded restrictions on chinese immigrants, required them to carry resident permits. chinese immigrants were not allowed to be witnesses in legal trials. and also they could not receive bail if they were arrested. so were they -- the chinese really the only ones that had to carry identity papers in this country? >> so, our immigration laws, what we know today, began with chinese americans. there weren't many immigration laws on the books for these exclusionary acts.
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and in the fong yu ting case in 1893, the court upheld the validity of this provision. they said the equal protection clause doesn't prevent a person from being deported, right? so long as they don't have their paperwork in order. so even if the constitution protected the yick wo laundromat to stay open, they didn't protect the right to be deported if they didn't comply with the laws requiring these certifications. >> can i add to that? >> please. >> i think the two immigration cases fong yu ting and the one that preceded it in 1889, those are really landmark cases that changed the course, not only for chinese immigrants, but for all immigrants and they apply today. and in these cases, the courts said that immigration is a matter of national security. before this time, immigration was understood to be under the commerce clause.
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to justify chinese exclusion and to justify the denial of equal protection, they said immigration was a matter of national security. therefore, it was outside the constitution. it's in the same basket of matters that congress regulates like declaring war, making treaties, having diplomatic relations with foreign countries. so, in matters of entry and removal, aliens have no rights under the constitution, none. and this is what our current president has used, the so-called plenary power, or executive power over immigration to justify the executive orders that were issued when he took office. so, this idea that immigration is a matter of national security and, therefore, the aliens do not have rights in matters of entry and removal, that comes from the chinese exclusion cases, but it is under girded our entire history of immigration law since that time. >> and it all began with the period of time that we're talking about right now. martin in starksville, mississippi, you're on. welcome.
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>> caller: my name is martin. i'm from starkville, mississippi and i am an american chinese born and raised in the mississippi delta. mississippi . and my question is how does it the case in 1886 affect the american born chinese in mississippi. and let me mention one other thing that my great grandfather helped build the transcontinental railroad back in the 1860s. >> and how did your family get from the west coast from the united states down to mississippi? >> well, they didn't come from the west coast. they came directly as i understand it from china to mississippi because cotton in the 1940s and 1950s was king back then, and there were jobs
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here then. but even before then they came after the railroad and the gold rush was built. >> thank you very much for your call. >> that's fascinating. pleased to meet you, sir. the important case for chinese born in america it was a case that came a few years later in 1988 called juan kim ark. and in that case the court affirmed the meaning of the first clause of the 14th amendment that all persons born are naturalized in the united states are subject to the jurisdiction thereof our citizens of the united states. so that case affirmed birthright citizenship for chinese-americans born to chinese immigrants in the united states. and in that case the court didn't actually have a big love for chinese people. the wording of the constitution
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is pretty clear-cut and if we deny it the chinese will jeopardize the citizenship of all the europeans. >> to add to that it was a test of the meaning thereof. it was a very strong beef that people of chinese descent were always subject to chinese jurisdiction. the same theology continued these people were so loyal to the emperor of japan even if they'd been in it united states for decades. so the juan kim was important that said it didn't matter if they're born here. >> how they were processed their entry into the united states you're going to be visiting with our cameras angel island. if you've been to san francisco
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you've heard about alcatraz. we visited that to tell us more about what it it was like for chinese immigrants being processed there. >> angel island becomes a checkpoint for immigrants. what the u.s. does is they build barracks to house immigrants. and this is a replica of those barracks. they brought their clothes, their best clothes because they wanted to present themselves well and appear like they were worthy of being here in the u.s. and they brought whatever it is they needed to occupy themselves during that time.
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they had an inspection office where immigrants were interviewed because somebody already here in the u.s. had to sponsor an immigrant in order for the u.s. to verify you were in fact a real relative. they would first ask all the questions to the sponsor and then the sponseree had to answer those questions. they asked about where they lived, how they lived their lives in china, where the water source was, which direction the house faced, who lived in the house. if you got all the answers right he was allowed entry onto u.s. soil. if you didn't he was deported. you had to go through a health inspection. what the inspectors were looking for was spreadable diseases that would be a threat to the society
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here. and if you were found to have some disease i believe you were not allowed entry. they didn't get their interview right when they arrived. they had to wait their turn. and sometimes that waiting period could be months. sometimes it was years, two years. they were not helpless but they were trapped for a while on angel island. >> did the chinese exclusion laws help to solidify the creation of china towns in major cities all around the united states, and did those become safe harbors for chinese? >> china towns are the by-product of two things. on the one hand they're the product of segregation because chinese are not allowed to live anywhere else either by law or by custom. but at the same time they become ethnic communities and they do promote a closeness of people,
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solidarity. so i think both of those things are the case. >> while we're talking about them, what's happening to them today around the united states? >> well, you know, china towns are often in close to downtown areas near central business districts so the real estate is really valuable. so there's a lot of pressure on chinese communities. buildings are bought by others. they want them evicked. that's happening in los angeles right now. there are people fighting evictions in l.a. china town, new york china town right up against wall street. so there's a lot of gentrification going on, young professionals moving in. >> that's why i'd like to spend our last 15 minutes talking about the 20th century of all of
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this. >> caller: hello, i wondered if the -- case and the 14 amendment would have any effect on the dreamers today? >> okay, thank you. i'm going to rurch that for just a little bit. that's a good question. dennis, clive, iowa, go ahead, please. >> caller: thank you. i wanted to follow up on a suggestion i believe from the gentleman earlier when he seemed to indicate that it can be understood better to economic freedom or liberty as opposed to discrimination. are you suggesting it was a harbinger or precursor of lochner? >> thank you. >> so those who don't know at home lochner verses the people
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of new york and new york passed law limiting how many hours a week a baker could work, and this was actually a criminal statute. there was a test case there as well, and a baker deliberately worked more than 80 hours a week and the court struck down the new york law to find it violated the liberty of contract. this was a liberty interest protected by the constitution. the lochner era as it's often called didn't really begin into the late 1980s and early 1900s. it referenced class legislation
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that's passed with a pretext. >> you've made the point both of you that anti-chinese laws continued and anti-chinese discrimination continued for about 60 more years in the united states. in 1943 congress passed the m magnusun act. what progress did the act make for chinese? >> well the magnusun act i think has to be understood as a world war ii era act. japan was making a lot of hay over the fact that the chinese were excluded from the united states, and they said what kind of ally is that that excludes your people, so chinese exclusion was repealed as a war measure and to kind of squelch
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that negative propaganda coming out of japan. but it really wasn't to help the chinese people immigrate because they applied a quota ra of 105 alyear. that applied not just to people ipchine but all chinese people around the world. if you were a chinese person in cuba or wherever you were subject to that 105 quota, but it was important because it repealed the ban on naturalization. so chinese who were in this country as residents could naturalize and also opened up to women. >> 20 years later congress passed the nationality act. what did it do? >> this was a significant law, and perhaps the most important aspect of this law it eliminated the quota system where people of certain countries could apply
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based on whether the countries was desirable or not. this law said now the issue of immigrant visas cannot be discriminated on the basis of nationality. to bring this to the present day, that's a core compone tonight the challenge of president trump's travel ban of whether this was announced to nationality based discrimination in violation of the 1965 immigration and nationality act. >> in 2012 congress issued a formal apology to chinese americans for their struggles in emigrating to the united states during the 19th and early 20th century. u.s. representative judy choo of chinese descent sponsored that resolution. here's her on the floor talking about it. >> the chinese like my grandfather did not have the legal right to become naturalized citizen. he had been here legally since 1904 but unlike nonchinese immigrants he was forced to
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register and carry a certificate of residence for all-times for nearly 40 years or else be deported. he could only be saved if a white person vouch fed for him. these laws are why we ask for this expression of regret. last october the u.s. senate did its part to write history bypassing their own resolution regret for these hateful laws. it did so unanimously with bipartisan support. and today the house should also issue its expression of regret. it is for my grandfather and for all chinese americans who were told for six decades by the u.s. government that the land of the free wasn't open to them that we must pass this resolution. we must finally and formally acknowledge these ugly laws that were incompatible with america's founding principles. we must express the sincere regret that chinese americans
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deserve. by doing so we will acknowledge that discrimination has no place in our society, and we will reaffirm our strong commitment to preserving the civil recognizes of people from every race and from all background. >> and in fact both houses of congress did pass such resolutions. we've learned this case has important implications for immigration policy and commerce in the united states. we're going to focus on the immigration questions. for example, the caller that asked about the implication for dreamers and daca. does it? >> well, the dreamers are people who came to the united states as fairly young people. they either came here illegally or they came here with a proper visa and they overstayed. the dreamers don't have a constitutional right to
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citizenship because they were not born in the united states. what they do have is a right to petition congress and congress should grant them naturalization, that's been an ongoing status. that is currentby being held up in the courts as president trump tried to rescind it and the courts hold you can't do this. eventually whatever the courts resolve they grant the question whether the dreamers will get permanent citizenship. >> related to that a viewer on twitter asked could our guests go into more detail regarding the legal treatment of people born or live in u.s. possessions such as guam or the u.s. virgin islands. >> well, perhaps the most famous person is john mccain. he was born in the panama canal zone. there was a question whether he was a natural born citizen. fast forward to 2016 we have ted
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cruz, a senator from texas. he was born in canada to american parents, and the question was he a natural born citizen, and some people said he was, some people said he wasn't. but if you're born in guam or american sumowa to this day you're not a natural born citizen bah because the cases mentioned suggested the full flag, the full constitution does not extend to these territories. you're a citizen by statute, but if congress repealed that statute you'd be less than a citizen and yald not be entitled to hold the rights, privileges that citizens receive. >> also mccain and cruz are citizens by statute. they're not 14th amendment citizens. they derive their citizenship from the citizenship of a parent. they're natural born but they're not birthright citizens. >> they say they are. >> i don't think they are. >> this is an interesting whole other program i think we could
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have. our last caller for this program is dennis in whitmore, iowa. >> caller: my question would be based on the facts today they say this is a human rights violation. >> i had difficulty hearing the question. >> would the same situation today be seen as a human rights violation? >> well, the phrase human right as has a very distinct meaning in terms of the international law. our courts do not apply international law. they apply domestic law. i can't speak to what the hague would say to our immigration policy but the plenary power doctrine established in dhas, that is congress has complete power over immigration for the most part stands to this day or some would hope to chip away at
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that doctrine but it's still in the books how we can deny entry to people from various countries. >> a lot of people can make an argument their human rights are being violated. the problem is one of jurisdiction and standing. the united states doesn't have to recognize anything an international court says to it. and in the case of immigration it will not go by what any external court says. but can i add something about the dreamers which i think is important? josh is absolutely right they don't have a birthright citizenship because they're not born in the united states, but they are the generation that benefitted from the pliler decision of 1982, a supreme court case that said undocumented children have the right to an education. they're talking about k-12 education. this was challenging a texas case that was going to deny school children who were undocumented access to the texas public schools. and the supreme court struck that down. they said it violated the 14th
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amendment and you could not punish children and assign them -- consign them to a life of illiteracy and marginalization. so that's 1982. fast forward the dreamers who come out in 2010 that's the pliler generation. that's the generation who went to school and then hit a wall, couldn't get a job, couldn't get a driver's license, maybe some of them went to college and then they hit another wall. so we gave -- recognize this right of these young people to go to school and i don't think it should be snatched away from them. >> i want to get to a wrap on this case. so robert will be our last caller for the program. go ahead, please. yes, sir, question? >> caller: i have a comment. this supreme court case is one of the rarest supreme court cases to get mentioned in a hollywood movie because the bridges spy which is true story
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of a soviet spy swapped later with a downed pilot. his lawyer killed a federal judge that says 1886, and as you've mentioned the due process cannot be denied to a non-citizen, and so he feels that his client is being denied his due process rights. and then later on he argues before a supreme court in 1960, again, the same argument for his client. >> thank you so much. fun to get some contemporary movie treatments into these historic cases. we have just a few minutes. i'm going to look at the legal and historical legacy of this. you mentioned more than 150 citations in subsequent cases. you had a top five. we're going to put those on-screen, please. regions of the university of
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california v. bakke. you've talked about most of those. give us a little preview of the citation with bakke which is our final case. >> bakke was a famous case that validated university of california's affirmative action policy. in that case the court said that a quota system, right, setting aside a certain number of seats for racial minorities was unconstitutional. but the court cited that the guarantees of equal protection are, quote, universal application to all persons without regard to differences of race. so here you have it being cited against affirmative action policy, the idea using race in a
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positive fashion was also unconstitutional. this is very controversial idea. today justice harlan then plessy case says our constitution is color-blind. there's a distinct legacy here when you can use race for a positive fashion and when can you use race for a negative fashion, that's something vigorously contested today. >> so we're going to have ourselves come full circle. this is a 14th amendment case particularly emphasizing the provision that says nor shall any state deprive any person of life, liberty or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws. what is a historical summation for us? what is the important of the case to american society over time? >> it means that we can't
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discriminate against immigrants. we can't with hold from them rights we give citizens. the two main recognizes citizens have that immigrants do not have are the right to be present meaning you can't be thrown out of the country and the right to vote. other than that all people in this country have the same rights, and i think that's really important because we're a very diverse country. we have a large immigrant population. it's about 13% of our population, but i think it's really important that we have a society that treats everybody equally. >> historical importance of the case. >> the key aspect of -- is it teaches a lesson to the courts even if a facially neutral law exists, that the law on its face doesn't mention religion that courts are empowered to look behind the face of that statute to find proper motivation and that something the court has done quite often over the last several decades.
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>> thank you for helping us understand this 1886 case. special thanks to our friends at the national constitution center who helped us with the selection of the cases for this entire series. thanks for being with us. we have 12 cases all together and we hope you'll be with us for more of this journey as we learn about significant supreme court cases and the impact on our society.
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>> tonight on american history tv our series landmark cases produced in cooperation with the national constitution center we explore the issues, people and places involved in some of the most significant supreme court cases in our nation's history. we begin at 8:00 eastern with gideon v. wainwright. and then at 9:35 eastern griswold v. connecticut that banned the prescription and use of birth control. the supreme court ultimately ruled the statute to be unconstitutional. watch landmark cases tonight on c-span 3 and anytime at >> american history tv on c-span 3 exploring the people and events that tell the american story every weekend. coming up this weekend, saturday
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at 8:00 p.m. eastern on lectures in history we look back to 2012 and hear from phyllis about the roots and modern-curve movement. and four police training films from the 19:60s. at 6:00 p.m. eastern on american artifacts a tour of the ellis island immigration muse. ch and at 7:00 p.m. eastern historians talk about recent debates over removing historical monuments. exploring the american story. watch american history tv this weekend on c-span 3. >> live now to capitol hill for a house hearing on what's being done to reopen schools during the coronavirus pandemic.
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