Chinese Exclusion and the Open Door with China: Structural Contradictions and the 'Chaos' of Law, 1882-1910
| Published date | 01 June 2001 |
| DOI | 10.1177/a017401 |
| Date | 01 June 2001 |
| Author | Kitty Calavita |
| Subject Matter | Articles |
CHINESE EXCLUSION AND THE
OPEN DOOR WITH CHINA:
STRUCTURAL CONTRADICTIONS
AND THE ‘CHAOS’ OF LAW,
1882–1910
KITTY CALAVITA
University of California, USA
ABSTRACT
This article examines the structural contradictions underlying the difficulties
of implementing the Chinese exclusion laws first enacted by the US Con-
gress in 1882. I argue that these contradictions were grounded in the material
and ideological conditions of the period, were reproduced in the unwieldy
logic of the exclusion laws, and emerged as unresolvable enforcement dilem-
mas. Most important, the anti-Chinese racism on which the exclusion laws
were based clashed with economic interests driven by the promise of lucra-
tive trade with China. Using unpublished archival materials, the Congres-
sional Record and Congressional reports, as well as annual reports of the
enforcement bureaucracy, I show that exceptions to the exclusions for
Chinese merchants were an attempt to reconcile this contradiction, and in
turn generated formidable enforcement problems. Further, I argue that the
impossibility of making sharp binary distinctions between merchants and
‘coolies’, and the humiliating procedures involved in the futile effort to do
so, subjected the Immigration Bureau to criticism from exclusionists for their
failure to detect fraud, and from the Chinese and their advocates in the busi-
ness community for their harsh practices. The implications for sociolegal
studies more generally are examined in the conclusion.
SOCIAL & LEGAL STUDIES 0964 6639 (200106) 10:2 Copyright © 2001
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 10(2), 203–226; 017401
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SOCIAL & LEGAL STUDIES 10(2)
INTRODUCTION
FOR MOSTof the 19th century, the United States had an open-door
immigration policy. While a few selective policies were introduced in
the last quarter of the century – barring, for example, those with con-
tagious diseases, prostitutes, and those ‘likely to become a public charge’ –
these policies had little impact on the burgeoning numbers of primarily Euro-
pean immigrants arriving in the United States. Deviating substantially from
this otherwise open door were policies that related to the immigration of one
national group – the Chinese. As immigration from China increased begin-
ning in the 1850s, and as anti-Chinese sentiment in the United States spread,
Congress moved swiftly to bring Chinese immigration to a virtual halt.
When President Chester Arthur signed the Chinese Exclusion Law in
1882, barring Chinese laborers from entry into the United States, the New
York Times editorialized, ‘It is to be hoped that this settles the much-vexed
Chinese question for a time at least’ (9 May 1882: 4). Instead, the new law
turned out to be ‘full of vexatious and perplexing questions’ (Customs
Collector of San Francisco, 23 August 1883, Entry 134, Box 21), generating
‘difficulties almost insuperable’ (19 Fed. Rep. 187 [1884]), and fueling rather
than settling the controversies surrounding Chinese immigration.
I argue in this article that the difficulties surrounding the enforcement of
the exclusion policy, which was not repealed until 1943, derived from a series
of underlying contradictions, the specifics of which were grounded in the
material and ideological conditions of the period. I show that while anti-
Chinese racism created the political climate in which the exclusion laws were
passed and rigorous enforcement encouraged, lucrative commercial relations
with China demanded that exemptions be carved out for Chinese merchants
and a few other privileged groups. The conflict between political and econ-
omic interests – a conflict that was reproduced in this law that excluded the
Chinese as racially ‘inferior’ but exempted Chinese merchants as a ‘superior’
social class – complicated the enforcement process in at least two ways. First,
enforcement personnel, while encouraged to err on the side of exclusion, were
periodically called to task for their harsh interpretation of the laws, as when
Chinese anger at the humiliating examination process led to the 1905 boycott
of American goods in China. Second, the exemption for merchants unleashed
a host of problems relating to the self-contradictory assumptions – implied in
the legislation and in the discourse and practices of the inspectors – about race
as a biological condition on one hand, but offset by class status on the other,
and the use of physical markers to determine that status. While this case study
has an interesting story to tell relating to US immigration policy in this period
– and the history of Chinese exclusion in particular – its broader significance
lies in its potential contribution to sociolegal theory more generally. These
theoretical ramifications are spelled out in the conclusion of the article.
The data for this study, which focuses on the early years of the Chinese
exclusion policy, come from several sources. Most important among my
primary sources are the National Archives records in Washington, DC,
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CALAVITA: CHINESE EXCLUSION
205
which include unpublished memoranda, letters, notes, instruction circulars,
and telegrams to and from inspectors in the field and agency officials in
Washington. A variety of other US government sources, such as the Con-
gressional Record, Congressional Hearings and Reports, the Annual Reports
of the US Treasury Department and the Immigration Bureau, and published
and unpublished decisions of the Secretary of the Treasury and (after 1903)
the Secretary of Commerce and Labor, supplement the National Archives
data. Other records of the US Immigration Bureau were accessed through a
microfilm set, entitled ‘Research Collections in American Immigration:
Records of the Immigration and Naturalization Service’ (Vecoli, 1992).
THEORETICAL FRAMEWORK
A number of theoretical traditions inform this work. First, I draw from the
dialectical model put forth by Chambliss (1979) and elaborated by Chamb-
liss and Zatz (1993), Calavita (1989, 1990, 1992) and others (see Zatz and
McDonald, 1993). Chambliss has summarized this model:
[W]e propose a theory of law creation that sees law creation as a process aimed
at the resolution of contradictions, conflicts and dilemmas that are historically
grounded . . . The most important dilemmas and conflicts existing at a particular
time and place are those that are a consequence of the contradictions that inhere
in the economic, political, and ideological structures of the times (Chambliss,
1979: 156).
I employ this theoretical framework to make sense of the difficulties that
Chinese immigration inspectors complained of. However, unlike most other
applications of this essentially materialist approach,2 I propose that structural
contradictions in the political economy may reverberate in, or be reproduced
as, cultural and ideological contradictions with substantial consequences of
their own.
In addition to this dialectical model, I draw from critical race theory. Omi
and Winant (1986: x) begin their study of racial formation in America, ‘[R]ace
is not an essence. It is not “something fixed, concrete, and objective”.’
Instead, it is ‘a set of social meanings’. While race is not itself a ‘concrete’
essence, nonetheless these meanings have concrete effects, since ‘[d]ifferences
in skin color and other obvious physical characteristics supposedly provide
visible clues to differences lurking underneath’ (1986: 62–3).
As Ignatiev (1995: 1) points out in his book on the racialization of the Irish,
only by recognizing the social quality of race formation can one ‘avoid the
contradictions and howling absurdities that result from attempts to splice
genetics and sociology’. Ignatiev traces the meandering racial history of Irish
Catholics, from their assignation in 19th-century Ireland as a distinct race
(‘Celts’ or ‘Gaels’), to the racial status of Irish immigrants in mid-19th
century America as ‘niggers turned inside out’ (correspondingly, African-
Americans were ‘smoked Irish’), to their simultaneous social and racial
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SOCIAL & LEGAL STUDIES 10(2)
upward mobility in the 20th century. In a somewhat similar analysis, Brodkin
(1998: 63) describes the ‘ethnoracial assignment’ of Jews and other eastern
and southern European immigrants in early 20th-century America, linking
their ‘job degradation and racial darkening’.
Chinese exclusion policies provide a vivid example of the construction of
race as an essential biological trait that is presumed to be visible through a
series of signs and physical markers. As we will see, US immigration inspec-
tors took great pains to register the physical features and idiosyncratic marks
of Chinese entrants both for identification purposes – particularly before the
extensive use of photographs – and in an effort to sort out what were pre-
sumed to be racially inferior ‘coolies’ from the superior classes.
Recent writings on the intersectionality of race, class, and gender shed
further light on these questions. Most relevant here, Harris (1990) and Cren-
shaw (1998) note the importance of the intersectionality of race and gender,
and the distinctive location of women of color in the social, political, and legal
order. Just as Crenshaw (1998) links the courts’ inability to recognize the
intersectionality of race and gender to underlying power relations and
material interests, so too the paradoxical Congressional assumption that a
person...
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