The Architecture of Race in American Immigration Law: a Reexamination of the Immigration Act of 1924 Author(S): Mae M

Home , Madison Grant

The Architecture of Race in American Immigration Law: A Reexamination of the Immigration Act of 1924 Author(s): Mae M. Ngai Source: The Journal of American History, Vol. 86, No. 1 (Jun., 1999), pp. 67-92 Published by: Organization of American Historians Stable URL: http://www.jstor.org/stable/2567407 . Accessed: 28/10/2013 21:53

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This content downloaded from 131.94.16.10 on Mon, 28 Oct 2013 21:53:09 PM All use subject to JSTOR Terms and Conditions The Architectureof Race in AmericanImmigration Law: A Reexaminationof the ImmigrationAct of 1924

Mae M. Ngai

On February4, 1929,Dr. Joseph A. Hill presenteda plan for immigration quotas basedon nationalorigin to theUnited States Senate immigration committee. Hill wasthe chief statistician ofthe Census Bureau and chairman of the Quota Board, a committeeunder the departments of State, Commerce, and Labor.Congress had mandatedthe board to allocate the quotas under the Immigration Act of 1924.That lawrestricted immigration into the United States to 150,000a yearbased on quotas, whichwere to be allottedto countriesin thesame proportion that the American peopletraced their origins to thosecountries, through immigration orthe immigrationof their forebears.1 Thiswas the third time in as manyyears that Hill had submitted a plan to Con- gress,and againmembers of Congressinterrogated him as to theaccuracy of the quotas.Hill's professional authority as one of thenation's leading demographers restedon a thirty-yeartenure at the Census Bureau and was manifest in hispatrician appearance.But determining the national origins quotas was arguably the most diffi- cultchallenge of his career. Indeed,in early1929 it wasstill not at all certainthat the system mandated in 1924would come into being. Congress had already postponed implementation of thequotas twice. The firsttwo reports submitted by the Quota Board were criticized

Mae M. Ngai is assistantprofessor of UnitedStates history at the Universityof Chicago.This essay,submitted whileshe was a graduatestudent at Columbia University,received the Louis PelzerMemorial Award for 1998. This articleis drawnfrom the author's"Illegal Aliens and Alien Citizens:United States Immigration Policy and RacialFormation, 1924-1945" (Ph.D. dissertation,Columbia University, 1998). I am gratefulto thefollowing people for their support and constructivecriticism: Eric Foner, Elizabeth Black- mar,Alan Brinkley,Gary Gerstle, Neil Gotanda,Matthew Jacobson, Ira Katznelson,Rebecca McLennan, Gary Okihiro,John Torpey, and ClarenceWalker. I also wishto thankDavid Nord and membersof the PelzerAward committeefor their suggestions and Yuji Ichiokaand AaronShapiro for assistance with illustrations.

I U.S. Congress,Senate, Committee on Immigration,National Origins Provision of theImmigration Law, 71 Cong., 2 sess.,Feb. 4, 1929, p. 16. The ImmigrationAct of 1924 stipulatedthat permanent immigration quotas wereto go intoeffect on July1, 1927. In themeantime, immigration was governedby temporaryquotas, which wereallocated to each Europeancountry at 2% of the numberof foreign-bornof each nationalityin the 1890 census.The temporaryformula gave 85% of the quotas to northernand westernEuropean nations. Act of May 26, 1924, chap. 190, 43 Stat. 153.

The Journalof American History June1999 67

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byorganizations representing Irish, German, and ScandinavianAmericans for failing to take theirpopulations fully into account.In 1928 protestsover the hardships wroughtby restrictionmounted; Young Men's ChristianAssociations (YMCAS), churchcongregations, and the League of WomenVoters petitioned Congress to admitfamilies who were unable to join men who had immigratedbefore 1924 becausethose family members lived in countrieswhose quotas were oversubscribed. The issue hung in politicalsuspension throughout the presidentialelection cam- paignof 1928. HerbertHoover had, as secretaryof commerce,signed the Quota Board'sfirst two reports. But he kickedoff his presidential campaign in Augustwith a speechthat described national origins quotas as impossibleto determine"accu- ratelyand withouthardship," an apparentappeal to Germanand Scandinavianvot- ers in the Midwest.Observers noted that Hoover'sDemocratic rival, Al Smith, opposedthe quotas in theNorth while favoring them before southern audiences.2 Duringthe winter, the nativist lobby stepped up itsown efforts,mobilizing mass petitionsto Congressfrom the American Legion, the Grange, and theDaughters of theAmerican Revolution. The patrioticsocieties took out a seriesof advertisements in the WashingtonPost, defending the "nationalorigins basis . . . [as] the onlyone whichdoes not discriminatefor or againstany" nation and exhortingmembers of Congressto standfirm against the efforts of "hyphenates"who would "playpolitics withthe nation's blood stream."3 The politicalopponents of nationalorigins quotas sought another postponement in orderto workfor the law's repeal. Congress had acceptedthe principle of national originsas fairand nondiscriminatory,but the claimto fairnesswould evaporateif thequotas could not be accuratelydetermined.4 S. W Boggs,the State Department's geographerand secretaryof the Quota Board,admitted to the Senatecommittee thatthe quotas were affected by an "elementof error"but claimedthat the "results arepractically as good as theycan be made."The strongestdefense Hill could make of theQuota Board'sthird report was, "The presentcomputations are as nearas we can geton thismatter to determiningthe national origins, practically."5

2 U.S. Congress,Senate, National Origin Provision of the Immigration Act of 1924, 69 Cong., 2 sess.,Dec. 16, 1926; U.S. Congress,Senate, Immigration Quotas on theBasis of National Origins,70 Cong., 1 sess.,Feb. 25, 1928; Petitionsin supportof S.J.Res. 122 and H.J. Res. 233-234, fromYMCA, YWCA, Leagueof WomenVoters, KiwanisClub of Milwaukee,file Sen. 70A-J17,box 179, Recordsof the UnitedStates Senate, RG 46 (National Archives,Washington, D.C.); RobertDivine, American Immigration Policy, 1924-1952 (New Haven, 1957), 40. 3Petitions in supportof nationalorigins quotas, fromDaughters of the AmericanRevolution, American Legion,Grange, file Sen. 70A-J17,box 179, Senate Records;Washington Post, [Feb. 18, 1929]; ibid., Feb. 25, 1929, p. 4; ibid.,March 2, 1929, p. 4. 'Edward Hutchinson,Legislative History of American Immigration Policy, 1790-1965 (Philadelphia,1981), 205. The legislativegenealogy of immigrationquotas turnson the endeavorsof lawmakersto make race-based lawsappear to be notracist. The firstnumerical restrictions on immigration,passed in 1921 as an emergencymea- sure,legislated quotas based on 3% of theforeign-born population in 1910, giving55% of thequotas to northern and westernEuropeans and 45% to southernand easternEuropeans. Nativists lobbied for quotas based on 2% of theforeign-born population in 1890,which reduced southern and easternEurope's quotas to 15% of thetotal. The idea of quotasbased on thenational origins of theentire population in 1920 was conceivedby Sen. David Reed of Pennsylvania,chair of theSenate immigration committee, and John Trevor, a colleagueof MadisonGrant. Reed and Trevorturned things on theirhead byclaiming that using only the foreign-born population to determinequotas dis- criminatedagainst native-born Americans. See JohnHigham, Strangers in theLand: Patternsof American Nativism, 1865-1924 (1955; New Brunswick,1985), 319-21; and Divine,American Immigration Policy, 1-51. 5 Committeeon Immigration,National Origins Provision of theImmigration Law, 8, 16, 18.

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Two weekslater the secretariesof State,Commerce, and Labor submittedthe Quota Board'sreport to thepresident. The secretaries,however, issued a caveatthat they"neither individually nor collectivelyare expressingany opinion on themerits or demeritsof thissystem of arrivingat thequotas." Nevertheless, as one of his first actsas president,Herbert Hoover proclaimed the quotas on March22, 1929.6

Both academicand populardiscourse have long criticizeddifferential immigration quotasbased on nationalorigin as discriminatory.Yet the concept of "nationalorigin"as a constitutiveelement of theAmerican nation remains inadequately prob- lematized.In partthat is becausemost scholarship on theImmigration Act of 1924 has focusedon thelegislative process leading to thepassage of thelaw. The central themeof thatprocess was a race-basednativism, which favored the "Nordics"of northernand westernEurope over the "undesirableraces" of easternand southern Europe.That is an importantstory, the richestaccount of whichremains John Higham'sclassic, Strangers in theLand, published in 1955.The narrativeof thepolitics of eugenicsand restriction,however, emphasizes the passage of the Reed- JohnsonAct as theend of thestory, the triumph of ProgressiveEra nativismand the historicalterminus of open immigrationfrom Europe. That focusdoes not ade- quately explain and may,in fact,obscure fromview other ideas about race, citizenship, and the nation thatthe new law both encoded and generated.7 More generally,the lack of criticalanalysis of "national origin"may also result from a presumptionthat nations and nationalityare normativecategories in the orderingof the world. As Eric Hobsbawm has pointed out, that presumptiononly underscoreshow powerfullythe modern nation-statehas dominated the experience of the last centuryand a half.Recent scholarshiphas emphasizedthe need to histori- cize thenation-state and thecultures, identities, and relationshipsthat it generates. Likerace, nation and nationalityare socially constructed; their legal definitions and culturalmeanings can onlybe understoodin thecontext of history.8 This articleargues that the Immigration Act of 1924 compriseda constellationof reconstructedracial categories, in whichrace and nationality-conceptsthat had beenloosely conflated since the nineteenth century- disaggregated and realignedin newand unevenways. At one level,the new immigration law differentiatedEurope-

6Frank Kellogg,William Whiting, and JamesDavis, to the President,Feb. 26, 1929, 70 Cong., 2 sess.,S. Doc. 259; Proclamationby the President of the United States of America, no. 1872, March22, 1929, 46 Stat.2984. 7Higham, Strangersin theLand; Divine,American Immigration Policy; Philip Gleason, "American Identity and Americanization,"in HarvardEncyclopedia of AmericanEthnic Groups, ed. StephenThernstrom (Cambridge, Mass., 1980); JohnHigham, Send Theseto Me (Baltimore,1981). On scientificracism and eugenics,see Carl Degler,In Searchof Human Nature: The Decline and Revivalof Darwinism in AmericanSocial Thought(New York, 1991); StephenJay Gould, TheMismeasure of Man (New York,1981); NancyStepan, The Idea ofRace in Science (London,1982); and ElazarBarkan, The Retreat of Scientific Racism: Changing Concepts of Race in Britainand the UnitedStates between the World Wars (Cambridge, Eng., 1992). 8Eric Hobsbawm,Nations and Nationalismsince 1780: Programme,Myth, Reality (Cambridge, Eng., 1992), 192. See also BenedictAnderson, Imagined Communities: Reflections on theOrigins and Spreadof Nationalism (London,1991); Gopal Balakrishnan,ed., Mappingthe Nation (London, 1996); and Paul Gilroy,The Black Atlan- tic:Modernity and Double Consciousness(Cambridge, Mass., 1992).

This content downloaded from 131.94.16.10 on Mon, 28 Oct 2013 21:53:09 PM All use subject to JSTOR Terms and Conditions 70 TheJournal of American History June1999 ans accordingto nationalityand rankedthem in a hierarchyof desirability.At anotherlevel, the law constructeda white American race, in whichpersons of Euro- pean descentshared a commonwhiteness that made them distinctfrom those deemedto be notwhite. Euro-Americans acquired both ethnicities-that is, nationality-basedidentities that were presumed to be transformable-anda racialidentity basedon whitenessthat was presumedto be unchangeable.This distinctiongave all Euro-Americansa stake in whatMatthew Jacobson has calleda "consanguinewhite race"and facilitatedtheir Americanization. But, while Euro-Americans' ethnic and racialidentities became uncoupled, non-European immigrants-among them Japa- nese,Chinese, Mexicans, and Filipinos-acquiredethnic and racialidentities that wereone and thesame. The racializationof thelatter groups' national origins ren- deredthem unalterably foreign and unassimilableto the nation.The Immigration Actof 1924 thusestablished legal foundations for social processes that would unfold overthe nextseveral decades, processes that historians have called,for European immigrants,"becoming American" (or, more precisely, white Americans), while cast- ingMexicans as illegalaliens and foredoomingAsians to permanentforeignness.9 Drawingupon MichaelOmi and HowardWinant's concept of racialformation, whichthey define "as thesociohistorical process by whichracial categories are created, inhabited,transformed, and destroyed,"this article seeks to understandthe roleof immigrationlaw and policyin theproduction of officialknowledges of race and nationality.10The articleexamines three major aspects of theImmigration Act of 1924. First,it analyzesthe invention of "nationalorigins," which applied mostly to Europeanswhile distinguishing Europeans from non-Europeans, and theattendant processby which immigration quotas were determined as practicalpolicy. The article thenexamines the evolutionof the conceptof "ineligibilityto citizenship,"a conditionthat applied to all Asians,justifying and perfectingtheir exclusion from

I MatthewJacobson, Whiteness of a DifferentColor: European Immigrants and theAlchemy of Race (Cambridge, Mass., 1998). On ethnicityand whiteness,see also JamesBarrett and David Roediger,"Inbetween Peoples: Race, Nationality,and the 'New Immigrant'Working Class," Journal of American Ethnic History, 16 (Spring1997), 3- 44. For differentperspectives on theassimilation of Europeanimmigrants in thefirst half of the twentiethcen- tury,see Thomas Archdeacon, BecomingAmerican (New York,1988); Gleason,"American Identity and American- ization";David Roediger,Towards the Abolition of Whiteness(London, 1994), 181-98; KathleenNeils Conzen et al., "The Inventionof Ethnicity:A Perspectivefrom the USA," Journalof American Ethnic History, 12 (Fall 1992), 3-4 1; and RussellKazal, "RevisitingAssimilation: The Rise,Fall, and Reappraisalof a Conceptin AmericanEth- nic History,"American Historical Review, 100 (April1995), 437-71. The assimilationof Europeanethnic groups has also beenstudied in thecontext of twentieth-centuryclass formation. For example,see LizabethCohen, Mak- inga New Deal: IndustrialWorkers in Chicago,1919-1939 (Cambridge,Eng., 1990); GaryGerstle, Working Class Americanism:The Politics of Labor in a TextileCity (Cambridge, Eng., 1989); and JamesBarrett, "Americanization fromthe BottomUp: Immigrationand theRemaking of theWorking Class in the UnitedStates, 1880-1930," Journalof American History, 79 (Dec. 1992), 997-1020. On Mexicanand Asian immigrationand racialformation,see GeorgeSanchez, Becoming Mexican American: Ethnicity, Culture, and Identityin ChicanoLos Angeles, 1900-1945 (New York,1993), 209-26; David Gutierrez,Walls and Mirrors:Mexican Americans, Mexican Immi- grants,and thePolitics of Ethnicity (Berkeley, 1995), 69-116; Neil Foley,The White Scourge: Mexicans, Blacks, and PoorWhites in TexasCotton Culture (Berkeley, 1997), 40-63; David Montejano,Anglos and Mexicansin theMak- ingof Texas(Austin, 1987), 181-96; Lisa Lowe, ImmigrantActs: On AsianAmerican Cultural Politics (Durham, 1996), 1-36; Ian Haney Lopez, Whiteby Law: TheLegal Constructionof Race (New York,1995); and Bill Ong Hing,Making and RemakingAsianAmerica through Immigration Policy (Stanford, 1990). 10Michael Omi and HowardWinant, Racial Formation in theUnited States from the 1960s to the1990s (New York,1994), 55.

This content downloaded from 131.94.16.10 on Mon, 28 Oct 2013 21:53:09 PM All use subject to JSTOR Terms and Conditions Racein American Immigration Law 71 immigration,and thatcompleted "Asiatic" as a peculiarlyAmerican racial category. Finally,the article turns to therole that immigration law playedin theracial formationof Mexicanimmigrants and MexicanAmericans. While not subject to numerical quotas or restrictionson naturalization,Mexicans were profoundly affected by restrictivemeasures enacted in the 1920s,among them deportation policy, the cre- ationof theBorder Patrol, and thecriminalization of unlawfulentry. This analysisof theImmigration Act of 1924 suggeststhat immigration law and policywere deeply implicated in a broaderracial and ethnicremapping of thenation duringthe 1920s, a remappingthat took place in mutuallyconstituting realms of demography,economics, and law.It involved,in additionto changesin immigration patternsand policy,the migration of AfricanAmericans from the South to northern citiesand thelegal justification for de factosegregation in theNorth, and thecom- pletionof thelegal process of forcedassimilation of American Indians.

The Inventionof National Origins

If the quota systemwent into effectwithout the unqualifiedconfidence of its authors,the projecthad been markedby doubt fromthe beginning.Census and immigrationrecords, upon which the Quota Boardrelied in makingits calculations, werewoefully incomplete. The censusof 1790,the nation's first, did notinclude infor- mationabout national origin or ancestry.The censusdid notdifferentiate the foreign- bornuntil 1850 and did notidentify the places of birthof parentsof thenative-born until1890. Immigrationwas unrecordedbefore 1820 and notclassified according to originuntil 1899, when it was arranged,not by politically defined nation-states, but accordingto a taxonomycalled "racesand peoples."Emigration was not recorded until1907. To complicatethings further, many boundaries in Europechanged after WorldWar I, requiringa translationof politicalgeography to reattributeorigins and allocatequotas according to theworld in 1920.12 To calculatethe quotas, the Quota Boardfirst had to conceptualizethe categories thatconstituted the system. "National origin," "native stock," "nationality," and other

II The UnitedStates Supreme Court would notsanction de juresegregation in theNorth, but it did legitimate de factosegregation based on freemarket principles in Corriganv. Buckley,which upheld the use of racialcove- nantsin realproperty. Buchanan v. Warley,245 U.S. 60 (1917); Corriganv. Buckley,271 U.S. 323 (1926). See GilbertOsofsky, Harlem, the Making of a Ghetto:Negro New York,1890-1930 (New York,1968); Donald Massey and NancyDenton, American Apartheid: Segregation and theMaking of theUnderclass (Cambridge, Mass., 1993). The Indian CitizenshipAct of 1924, whichdeclared all NativeAmerican Indians American citizens, completed the"assimilation" that stripped Native American Indians of theirsovereignty. Such citizenshipwas circumscribed by Indians'continued legal status as wards,a codificationof theirpresumed racial backwardness. Act of June2, 1924, 43 Stat.253. See FrederickHoxie, A Final Promise:The Campaignto Assimilate the Indians, 1880-1920 (Cambridge,Eng., 1995), 236-37. 12 LaVerneBeales, "Distribution of WhitePopulation as Enumeratedin 1920 Accordingto Countryof Ori- gin,"typescript, Oct. 16, 1924, file16, box 2, Reports,Correspondence, and otherRecords relating to Immigra- tionQuota Laws and NationalOrigins Statistics, ca. 1920-1936, NN-374-63, PopulationDivision, Records of the Census Bureau,RG 29 (NationalArchives); Minutes of Quota Board meeting,May 25, 1926, file 19, ibid. The conceptof "racesand peoples"used by theImmigration Bureau included sovereign countries, protonational or ethnicgroups, religions, and races.The scheduledifferentiated "Polish" from "Polish (Hebrew)," and "Italy (north)"from "Italy (south)" and listedIndians as "Hindu."

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categoriesin thesystem were not natural units of classification;they were constructed accordingto certainsocial values and politicaljudgments. Race, never explicitly men- tionedin thestatute, nevertheless entered the calculus and subvertedthe conceptual foundationsof thesystem in myriadways. For example,the boarddefined "native stock,"not as personsborn in theUnited States, but as personswho descendedfrom thewhite population of theUnited States in 1790. It defined"foreign stock" as the descendantsof all whiteswho immigratedto theUnited States after 1790.13 The law defined"nationality" according to countryof birth.But thatdefinition did notapply to theAmerican nationality. The statuteexcluded non-European peoples residingin theUnited States from the population universe governing the quotas.The law stipulatedthat "'inhabitants in continentalUnited States in 1920' does not include(1) immigrantsfrom the [WesternHemisphere] or theirdescendants, (2) aliensineligible to citizenshipor theirdescendants, (3) thedescendants of slave immigrants,or (4) thedescendants of theAmerican aborigines."'14 The Quota Board used censusrace categoriesto make its calculations.It sub- tractedfrom the total United States population all blacksand mulattoes,eliding the differencebetween the "descendantsof slaveimmigrants" and the descendantsof freeNegroes and voluntaryimmigrants from Africa. It also discountedall Chinese, Japanese,and SouthAsians as persons"ineligible to citizenship,"including descendantsof such peoplewith American citizenship by nativebirth. Finally, it leftout thepopulations of Hawaii,Puerto Rico, and Alaska,which American immigration law governedand whosenative-born inhabitants were United States citizens.15 In otherwords, to theextent that the "inhabitants in continentalUnited States in 1920" constituteda legalrepresentation of theAmerican nation, the law excisedall nonwhite,non-European peoples from that vision, erasing them from the American nationality.The practicalconsequence of thoseerasures is clearenough. In 1920 AfricanAmericans accounted for approximately 9 percent of thetotal United States population.16Had theybeen includedin thebase populationgoverning the quotas, theAfrican nations from which they originated would have received 9 percentof the totalimmigration quota, resulting in 13,000fewer slots for the European nations. Race alteredthe meaning of nationalityin otherways as well.Formally, the quota systemencompassed all countriesin the worldoutside the WesternHemisphere. China,Japan, India, and Siam each receivedthe minimumquota of 100, but the law excludedthe native citizens of thosecountries from immigration because they

"3JosephA. Hill, "The Problemof Determiningthe National Origin of theAmerican People," paper delivered at theannual meeting of theSocial ScienceResearch Council, Hanover, N.H., Aug. 1926, p. 7, file17, ibid. 14Act of May 26, 1924, sec. 12 (a), 43 Stat. 153; ibid.,sec. 11 (d). 15 S. W Boggsto W W Husband,Nov. 11, 1926, p. 3, file30, box 3, Reportsrelating to ImmigrationQuota Laws,Census Records. Aleuts and otherindigenous peoples of Alaskawere classified, not as UnitedStates citizens, butas NativeAmerican Indians or, in thelanguage of theImmigration Act of 1924, as "Americanaborigines." Act of May 26, 1924, sec. 11(d). Eliminatingthe territories from the quotas caused other problems. The 1920 census recorded7,000 nativesof Spain in PuertoRico. If theyhad been counted,Spain's quota would havesignificantly increased.Husband to JosephHill, May 6, 1922, file30, box 3, Reportsrelating to ImmigrationQuota Laws, CensusRecords. 16 U.S. Departmentof Commerce,Bureau of Census,Historical Statistics of the UnitedStates from Colonial Timesto 1970 (2. vols.,Washington, 1975), I, 9, 12.

This content downloaded from 131.94.16.10 on Mon, 28 Oct 2013 21:53:09 PM All use subject to JSTOR Terms and Conditions Race in AmericanImmigration Law 73 weredeemed to be raciallyineligible to citizenship.Thus Congresscreated the odd- ityof immigrationquotas for non-Chinese persons from China, non-Japanese persons fromJapan, non-Indian persons from India, and so on. The independent Africannations of Ethiopia,Liberia, and SouthAfrica received quotas of 100 each. Becausethe latter was a whitesettler country, this amounted to a concessionof 200 immigrationslots for black Africans.European mandatesand protectoratesin Africa,the Near East, and theFar East forexample, Tanganyika, Cameroon, Pales- tine,New Guinea had theirown quotas,which in practiceserved to increasethe quotasof GreatBritain, France, and Belgium,the nations with the largest colonial empires.(See table1.) Thus whilethe national origins quota systemwas intendedprincipally to restrict immigrationfrom the nations of southernand easternEurope and used thenotion of nationalorigins to justifydiscrimination against immigration from those nations, it did more than divideEurope. It also dividedEurope fromthe non-European world.It definedthe world formally by country and nationalitybut also byrace, dis- tinguishingbetween white persons from white countries and so-calledcolored races, whosemembers were imagined as havingno countriesof origin.This cross-cutting taxonomywas starklypresented in a tableprepared by John Trevor, an advocateof immigrationrestriction and thechief lobbyist for a coalitionof patrioticsocieties, on thenational origins of theAmerican people in 1924, whichlisted under the col- umn "Countryof Origin"fifty-three countries (from Australia to Yugoslavia)and five"colored races" (black, mulatto, Chinese, Japanese, and Indian).17 Like mostof theircontemporaries, members of Congressand the Quota Board treatedrace as evidencein itselfof differencesthat they presumed were natural. Few, if any,doubted that the Census Bureau's categories of racewere objective divisions of objectivereality. Such confidenceevinced the strength of racethinking generally as wellas theprogressivist faith in science,in thiscase, the sciences of demography and statistics.Indeed, few people doubted the census at all. The censuscarried the weightof officialstatistics; its power lay in theseeming objectivity of numbersand in itsformalization of racialcategories. Census data gavethe quotas an imprimatur thatwas nearlyunimpeachable. The censuswas invokedwith remarkable authority, as when,during the floor debate in theHouse in 1924, Rep. WilliamVaile retorted to an opponentof the nationalorigins principle, "Then the gentlemandoes not agreewith the Census!"18 Demography,and the censusitself, far from being the simplequantification of materialreality, grew in thelate nineteenthand earlytwentieth centuries as a lan- guagefor interpreting the social world. As thehistorian Margo Anderson observes, censusclassifications that defined urban and ruralpopulations, social and economic

'7JohnTrevor, "An Analysis of theAmerican Immigration Act of 1924," InternationalConciliation, 202 (Sept. 1924), 58-59. 18 TheodorePorter, "Objectivity as Standardization:The Rhetoricof Impersonalityin Measurement,Statistics, and Cost-BenefitAnalysis," in RethinkingObjectivity, ed. Allan Megill (Durham,1994), 209; David Theo Gold- berg,Racial Subjects:Writing on Race in America(New York,1997), 34. For Vaile'sstatement, see MargoAnder- son, TheAmerican Census: A SocialHistory (New Haven, 1988), 147.

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Table 1 ImmigrationQuotas Based on National Origin (AnnualQuota forEach FiscalYear, Beginning July 1, 1929) CountryorArea Quota CountryorArea Quota Afghanistana 100 Muscat(Oman)a 100 Albania 100 Nauru(British mandate) 100 Andorra 100 Nepala 100 Arabianpeninsula 100 Netherlands 3,153 Armenia 100 NewGuinea, Territory of (including 100 Australia(including Tasmania, Papua, appertainingislands) (Australian islandspertaining toAustralia) 100 mandate)a Austria 1,413 NewZealand 100 Belgium 1,304 Norway 2,377 Bhutana 100 Palestine(with Trans-Jordan) (British Bulgaria 100 mandate) 100 Cameroon(British mandate) 100 Persia 100 Cameroon(French mandate) 100 Poland 6,524 Chinaa 100 Portugal 440 Czechoslovakia 2,874 Ruandaand Urundi (Belgian mandate) 100 Danzig,Free City of 100 Rumania 295 Denmark 1,181 Russia,European and Asiatic 2,784 Egypt 100 Samoa,Western (mandate of New Estonia 116 Zealand) 100 Ethiopia(Abyssinia) 100 SanMarino 100 Finland 569 Siama 100 France 3,086 SouthAfrica, Union of 100 Germany 25,957 SouthWest Africa (mandate of Union GreatBritain and Northern Ireland 65,721 ofSouth Africa) 100 Greece 307 Spain 252 Hungary 869 Sweden 3,314 Iceland 100 Switzerland 1,707 Indiaa 100 Syriaand the Lebanon (French Iraq(Mesopotamia) 100 mandate) 123 IrishFree State 17,853 Tanganyika(British mandate) 100 Italy 5,802 Togoland(British mandate) 100 Japana 100 Turkey 226 Latvia 236 Yapand other Pacific Islands under Liberia 100 Japanesemandatea 100 Liechtenstein 100 Yugoslavia 845 Monaco 100 Morocco(French & SpanishZones andTangier) 100

SOURCE: Proclamationbythe President ofthe United States, no. 1872, March 22, 1929, 46 Stat.2984. a Quotasfor these countries available only for persons born within the respective countries who are eligibleto citizenship inthe United States and admissible under the immigration laws of the United States. classes,and racial groupscreated a vocabularyfor public discourseon the greatsocial changes takingplace in the United States-industrialization, urban growth,and, of course, immigration.In fact,the census was the favoredform of scientificevidence

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citedby restrictionistsand nativistsduring this period. That practicebegan with censusofficials. Francis A. Walker,the superintendentof the 1870 and 1880 cen- suses,was presidentof theMassachusetts Institute of Technology(MIT) and a bril- liantscholar in thenew fieldof statistics.He was also an ardentnativist and social Darwinistwho believedimmigrants from Italy, Hungary, Austria, and Russiawere "vastmasses of peasantry,degraded below our utmostconceptions . . . beatenmen frombeaten races, representing the worst failures in thestruggle for existence."'9 Analyzingcensus data, Walker developed the theory that by the 1880s immigrationwas retarding the natural birthrate of Americans,which he laudedas thehighest in the worldsince the foundingof the Republicand as evidenceof the nation's greatness.Because immigrants crowded native-born Americans from unskilled jobs, Walkertheorized, the latteradjusted to theirlimited job opportunitiesby having fewerchildren. He consideredimmigration a "shock"to the principleof natural populationincrease.20 His theoryrested on theassumption that the nation possessed a naturalcharacter and teleology,to whichimmigration was externaland unnatural.That assumption resonatedwith conventionalviews about America'sprovidential mission and the generalmarch of progress.Yet, it was rootedin a profoundlyconservative viewpoint thatthe composition of theAmerican nation should never change. Few peopledur- ingthe 1920s understood,much less accepted, the view of thephilosopher Horace Kallen,an advocateof culturalpluralism, that the Englishhad settledthe North AmericanAtlantic seaboard, not as a resultof promptingfrom Providence, but as an accidentof history.21 FrancisWalker's theory of thedeclining native birthrate and thecensus data upon whichit was basedbecame the foundation for the restrictionists' claim that immigration threatenedto overwhelmthe Americannation. It anchoredMadison Grant's thesisthat the great Nordic race was in dangerof extinction.Paraphrasing Walker, Grantwarned that upward mobility on thepart of nativeworkers was a formof race suicide."A race that refuses to do manualwork and seeks'white collar' jobs," he said, "is doomedthrough its falling birth rate to replacementby the lower races or classes. In otherwords, the introductionof immigrantsas lowlylaborers means a replace- mentof race."Similarly, a 1922 publicationby the CommonwealthClub of Cali-

'9Anderson,American Census, 133-34; FrancisA. Walker,"Restriction of Immigration,"Atlantic Monthly, 77 (June1896), 828. 20Higham,Strangers in theLand, 143; FrancisA. Walker,"The GreatCount of 1890," Forum,15 (June 1891), 406-18. See also FrancisA. Walker,"Immigration and Degradation,"ibid. (Aug. 1891), 634-44. Thereis morethan one wayto interpretsuch censusdata. Urbanfamilies tend to havefewer children than do farmfami- lies,and familiesof themiddle classes are usuallysmaller than those of thelaboring population. 21 Horace Kallen, Cultureand Democracyin theUnited States: Studies in theGroup Psychology of theAmerican Peoples(New York,1924), 98. Walker'sassumptions regarding "natural" population increase also involvedsoph- istry.In 1873 Walkercriticized that theory as ElkanahWatson had postulatedit. Notingthat the population of the UnitedStates had increasedby about one-thirdduring each of the two decadesfollowing the 1790 census, Watsonprojected population increases up to 1900 based on thatrate of growth.Walker disagreed, stating that "geometricprogression is rarelyattained, in humanaffairs." Yet in the 1890s Walkerresuscitated Watson's theory to supportthe restrictionistagenda, ignoring the criticismshe had made twentyyears before. Francis Walker, "Our Populationin 1900," AtlanticMonthly, 32 (Oct. 1873), 487-95; WilliamPeterson, The Politics of Popula- tion(New York,1964), 198-200.

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g ...... -.Ei~~~~~~~~~.1-...-:i!-f::;X::':-!t?;-:;--'VE--'L::......

JosephA. Hill thechief statistician of the Census Bureau, was chairmanof thecommittee that devised immigration quotasaccording to thenational origins of the Americanpeople, as mandatedby the ImmigrationAct of 1924. Photocourtesy of the Census History Staff U S. Bureauof the Census. fornia,a civicforum devoted to discussionof policyissues, on "Immigrationand Population"carried the subtitle,"The Census ReturnsProve That Immigrationin thePast Century Did Not Increasethe Population, but MerelyReplaced One Race Stockby Another." l22 Like FrancisWalker, Joseph Hill also came froman elite,old-line New England family.The son of a ministerand a cousinof HenryAdams, he graduatedfrom Phil- lips ExeterAcademy and HarvardCollege (as had his fatherand grandfather)and receivedhis Ph.D. at the Universityof Halle, Germany.Although Hill beganhis tenureat theCensus Bureau in 1899, twoyears after Walker's death, he held many

22 MadisonGrant, The Passing of the Great Race (New York,1916), 104; EdwardLewis, Nation or Confusion?A Studyof OurImmigration Problems (New York,1928), 79; MadisonGrant and CharlesStewart Davison, eds., The Alienin OurMidst; or, "Selling our Birthrightfor a Mess of Pottage" (New York,1930), 15; "Immigrationand Pop- ulation,"Transactions of theCommonwealth Club of California,17 (Oct. 1922), 1, copyin "Immigration,Califor- nia"file, box 2, Paul ScharrenbergPapers (Bancroft Library, University of California,Berkeley).

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of thesame views. In 1910, usingpreviously unpublished and untabulatedcensus data, Hill contributedto the DillinghamCommission's study of immigrationtwo monographsthat were of greatimportance to therestrictionist movement. The first studyanalyzed occupational distribution by nativity;the second determined differ- entialsin fecunditybetween the foreign-born,the the native-bornof foreign-born parents,and thenative-born of nativeparents. Not coincidentally,these studies pro- vided additionalempirical evidence for FrancisWalker's theory of the retarded nativebirthrate.23 Since the mid-nineteenthcentury, scientific race theoryhad revolvedaround effortsto developsystems of racialclassification and typology.In thisvein, Hill strovefor ever more precise categories of classificationand comparisonsof type.He addednew questions to thecensus in 1910 and 1920 in thehope of elucidatingdif- ferencesin raceand nationalityin increasingdetail. Hill restoredthe "mulatto" race category(which had been eliminatedin the 1900 census)as well as questionsto ascertainliteracy, ability to speakEnglish, mother tongue, number of childrenborn and living,and lengthof timein theUnited States. He was particularlyinterested in creatingindices to gauge assimilation,and he presenteddata in tablesthat made racialcomparisons convenient.24 In a sense,demographic data were to twentieth-centuryracists what craniometric data had been to racescientists during the nineteenth. Like the phrenologistswho precededthem, the eugenicists worked backward from classifications they defined a prioriand declareda causalrelationship between the data and race.Instead of mea- suringskulls, they counted inmates in stateinstitutions. If statisticsshowed that immigrantswere less healthy, less educated, and poorerthan native-born Americans, thatwas deemedevidence of theimmigrants' inferior physical constitution, intelli- gence,and ambition. UnlikeFrancis Walker, Joseph Hill did not aggressivelycampaign for restriction. He endorsedthe national origins principle in a restrainedway and otherwisescrupu- louslyavoided taking political positions. Yet, like all scientists,he broughthis own politicalviews and valuesto his work-to the questionshe asked,to the waysin whichhe classifieddata, and to theinterpretations he drewfrom the data. In Hill's case,those politics had guideda proliferationof censusdata on theforeign-born that servedthe nativist movement.25

23NewYork Herald Tribune,Dec. 13, 1939, clipping,"Career and Funeral"file, box 3, Correspondenceof JosephHill, Recordsof theAssistant Director of StatisticalStandards, Records of theChief Statistician, Adminis- trativeRecords of theCensus Bureau,RG 29 (NationalArchives); U.S. Congress,Senate, Reports of theImmigra- tionCommission, "Occupations of theFirst and Second Generationsof Immigrantsin the US and Fecundityof ImmigrantWomen," 61 Cong., 2 sess.,Jan. 12, 1910. 24 JosephHill, "Some Resultsof the 1920 PopulationCensus," Journal of theAmerican Statistical Association, 18 (Sept. 1922), 350-58; JosephHill, "Compositionand Characteristicsof Population,"typescript, [1920], file C-22, box 146, Memorandaand Notes [ofJoseph Hill], Recordsof theAssistant Director of StatisticalStandards, Recordsof the Chief Statistician,Administrative Census Records.Hill acknowledgedthat the numberof ques- tionson thepopulation schedule pertaining to theforeign-born seemed out of proportionto the relativesize of theforeign-born population. But he arguedthey were of greatvalue, especially in 1920, since"the composition of our populationas regardsrace and nativityor nationalityis, if possible,of greaterinterest and importanceat thistime than ever before." See JosephHill, "Scope of theFourteenth Census," typescript,[1917-19191, "Papers writtenby Dr. Hill" file,box 4, MiscellaneousRecords [of Joseph Hill], ibid. 25 Hill, "Problemof Determiningthe National Origin of theAmerican People," 2-3.

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That is not to saythat Hill's work was unscientificor unprofessional.To thecon- trary,he was a seriousprofessional who worked according to theestablished methods and disciplinaryrequirements of his field.As NancyStepan has pointedout, scientificracism's power lay, in largepart, in itsadherence to scientificmethodology and disciplinarystandards. If racescience were merely pseudoscience, it wouldhave had farless currency.26 In fact, Hill agonized over the methodologicalproblems in determining nationalorigins. One of themost serious problems he confrontedwas thelack of reliableinformation about the nationalorigins of thewhite native-stock population. Hill deduced thatroughly half the whitepopulation in 1920 consistedof descendantsfrom the original colonial population, but thecensus of 1790 did not recorddata on place of birth.A studyconducted by the Census Bureau in 1909,A Centuryof PopulationGrowth, classified the populationof 1790 accordingto countryof originby analyzingthe surnames of theheads of householdsrecorded in thecensus. The studyfound 87 percentof thepopulation to be English.Inde- pendentscholars believed the reportwas inaccurate,however, because it failedto recognizethat some names were common to more than one countryand that many Irish and Germannames had been anglicized.It omittedScandinavians fromthe nationalcomposition altogether. Hill too believedthe reportwas "of questionablevalue. "27 Nevertheless,Hill decidedto use A Centuryof PopulationGrowth because no otherdata existed.But afterprotests mounted from groups of Irish,German, and ScandinavianAmericans, he realizedthat the flawed report endangered the credibil- ityof theentire exercise. With the help of a $10,000grant from the American Council of LearnedSocieties, Hill enlistedHoward Barker, a genealogist,and MarcusHansen, an immigrationhistorian, to determinethe national origins of the white population in 1790. Their conclusions,based on a moresophisticated method of analyzingsur- namesand reportedto theQuota Boardin 1928, adjustedthe allocations of origins of the colonialstock considerably. Great Britain and NorthernIreland's share fell from82 percentto 67 percentof thetotal, reducing its quota by 10,000.28 Assumingthat Barker and Hansen discernedthe national origins of thepopulation in 1790 withfair accuracy, determining the nationalorigins of theAmerican populationfrom that base, following their descendants forward in timefrom 1790 to 1920,was an entirelydifferent matter. The methodologyemployed by the Quota Board analyzedthe populationin termsof numericalequivalents, not actualper- sons. Hill explainedthat the Quota Boardcould not "classifypeople into so many

26 Stepan,Idea ofRace in Science,xvi. 27Minutesof Quota Board meeting,June 23, 1926, file19, box 1, Reportsrelating to ImmigrationQuota Laws,Census Records; Joseph Hill, "Memorandumfor the Secretary," June 21, 1926, p. 3, file15, box 1, Memo- randaand Notes [of JosephHill], AdministrativeCensus Records;William S. Rossiter,A Centuryof Population Growth(Washington, 1909); JosephHill, "Notes on Prof.Jameson's Paper on 'AmericanBlood in 1775,"' typescript,[1924-1925], file20, box 2, Reportsrelating to ImmigrationQuota Laws,Census Records. 28 Hill, "Memorandumfor the Secretary,"3; AmericanCouncil of LearnedSocieties, "Report of Committee on Linguisticand NationalStocks in thePopulation of theUnited States," Annual Report of theAmerican Histori- calAssociation(3 vols.,Washington, 1931), I, 124. See also Anderson,American Census, 148 -49.

This content downloaded from 131.94.16.10 on Mon, 28 Oct 2013 21:53:09 PM All use subject to JSTOR Terms and Conditions Race in AmericanImmigration Law 79 distinctgroups of individualpersons, each grouprepresenting the number of individualpersons descending from a particularcountry." He continued, Even if we had completegenealogical records that would not be possiblebecause therehas been a greatmixture of nationalitiesthrough inter-marriage since this countrywas firstsettled. So when the law speaksof the numberof inhabitants havinga particularnational origin, the inhabitant must be lookedupon as a unit of measurerather than a distinctperson. That is to say,if we have,for example, fourpeople each of whom had threeEnglish grandparents and one German grandparent,. . . we havethe equivalent of threeEnglish inhabitants and one Ger- maninhabitant.29 Usingnumerical equivalents may have been the only available statistical method, but it revealedthe fundamental problem of thewhole project. The methodtreated nationalidentities as immutableand transhistorical,passed down throughgenera- tionswithout change. The Quota Board assumedthat even if nationalitiescom- bined throughintermarriage, they did not mix but remainedin descendantsas discrete,unalloyed parts that could be talliedas fractionalequivalents. The board's view of nationalorigin drew from the conceptof race definedby bloodlineand blood quantum,which was availablein theestablished definition of Negro.Rather thanapply the "one drop of blood" rule,however, the board conceived of intermar- riagebetween European nationalities in Mendelianterms. But is a personwith three Englishgrandparents and one Germangrandparent really the numerical equivalent of herancestors? Or does thatperson perhaps develop a differentidentity that is nei- therEnglish nor German but syncretic, produced from cultural interchanges among familiesand communitiesand shapedby the contingenciesof her own timeand place?By reifyingnational origin, Congress and the Quota Board anticipatedthe term"ethnicity," inventing it, as WernerSollors said, with the pretense of itsbeing "eternaland essential"when, in fact,it is "pliableand unstable."Sollors's view of ethnicityas a "pseudo-historical"concept triggered by "the specificity of powerrela- tionsat a givenhistorical moment" fits well the notion of immigrationquotas based on national origin.30 The Quota Boardalso ignoredintermarriage between Euro-Americans and both AfricanAmericans and NativeAmerican Indians, never problematizing the effect of miscegenationon the"origins" of thewhite population. That was becauseno concep- tualspace for such consideration existed in theabsolutism of American racial construc- tion.Thus, even as theboard proceeded from an assumptionthat all bloodlineswere inviolate,it conceptualizednational origin and racein fundamentallydifferent ways.31

29Hill, "Problemof Determiningthe National Origin of theAmerican People," 5-6. 30 WernerSollors, "Introduction: The Inventionof Ethnicity,"in TheInvention ofEthnicity, ed. WernerSollors (New York,1989), xiv-xvi. 31 On the persistentdenial of the existenceand scale of interracialmarriage in the UnitedStates, see Gary Nash, "The Hidden Historyof MestizoAmerica," Journal ofAmerican History, 82 (Dec. 1995), 941-64. See also PeggyPascoe, "Miscegenation Law, Court Cases, and theIdeology of Race in Twentieth-CenturyAmerica," ibid., 83 (June1996), 44-69; and JoelWilliamson, New People:Miscegenation and Mulattosin theUnited States (New York,1984).

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Evenwhen considered on its own terms,the task of calculatingnational origins was besetby methodological problems. The Quota Boardhad to makeassumptions to fillthe gaps in thedata. Hill acknowledgedthat his computations involved "rather arbitraryassumptions," some of which did "violenceto the facts."The most serious-and surprising,in light of Hill's long-standinginterest in immigrant fecundity-washis decision to applythe same rate of naturalincrease to all national groups.Hill alsoweighted the population figures for each decade, giving each earlier decadegreater numerical importance than the succeeding one, to allowfor a larger proportionof descendantsfrom earlier immigrants. The netresult of theseassump- tionstilted the numbers toward the northern European nationalities.32 Hill himselfexpressed concern that the entire exercise rested on so manyassump- tionsthat the conclusions might not be viable.Ultimately, Hill rationalized,arguing thaterrors in theprocess would not significantly affect the outcome. Because the law assignedone quota slot foreach 600 people in the 1920 population,Hill said, a deviationof 60,000 in the populationof any nationalitywould alterits quota by only 100. A more honestinquiry might have concludedthat determiningthe nationalorigins of theAmerican people was theoreticallysuspect and methodologi- callyimpossible. But, once PresidentHoover promulgated the quotas in 1929, the "nationalorigins" of theAmerican people, and the racialhierarchies embedded in them,assumed the prestige of law and themantle of fact.33

Eligibilityto Citizenshipand the Rule of Racial Unassimilability

The systemof quotas based on nationalorigin was the firstmajor pillarof the ImmigrationAct of 1924. The secondwas theexclusion of personsineligible to citizenship.By one account,the provisionbarred half the world'spopulation from enteringthe United States.34 Ineligibilityto citizenshipand exclusionapplied to thepeoples of all thenations of theFar East. Nearlyall Asianshad alreadybeen excluded,either by theChinese exclusionlaws or by the "barredAsiatic zone" thatCongress created in 1917. The lattercomprised the area from Afghanistan to thePacific, save for Japan, which the StateDepartment wished not to offend,and thePhilippines, a UnitedStates territory.In 1907 theJapanese government had agreedto preventlaborers from emigrat- ingto theUnited States, but nativists complained that the diplomatic agreement was ineffective.The exclusionof personsineligible to citizenshipby the Immigration Act

32SeeHill, "Memorandumfor the Secretary," 2; Minutesof Quota Boardmeeting, May 25, 1926, p. 3, file 19, box 2, Reportsrelating to ImmigrationQuota Laws,Census Records;Hill to Secretaryof State,Secretary of Commerce,Secretary of Labor,Feb. 15, 1928, in ImmigrationQuotas on theBasis of National Origin, 70 Cong., 1 sess.,Feb. 28, 1929, S. Doc. 65, p. 9; LaVerneBeales, "Committee on Distributionof Populationby National Origin,"typescript, Dec. 1, 1924, file16, box 2, Reportsrelating to ImmigrationQuota Laws,Census Records. 33Hill, "Memorandumfor the Secretary,"2; Minutesof Quota Board meeting,May 25, 1926, p. 3, file19, box 2, Reportsrelating to ImmigrationQuota Laws, Census Records;Hill, "Problemof Determiningthe NationalOrigin of the AmericanPeople," 21; Hill to Secretaryof State,Secretary of Commerce,Secretary of Labor,Feb. 15, 1928, in ImmigrationQuotas on theBasis of National Origin, 7. 34Actof May 26, 1924, sec. 13 (c), 43 Stat. 152; Paul Scharrenberg,"America's Immigration Problem," Dec. 1926, p. 4, "ImmigrationQuotas" file,box 2, Paul ScharrenbergPapers.

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of 1924 achievedstatutory Japanese exclusion and completedAsiatic exclusion. Moreover,it codifiedthe principle of racialexclusion, incorporating it intogeneral immigrationlaw, albeit through the euphemisticreference to "personsineligible to citizenship,"which remained in effectuntil 1952.35 Two majorelements of twentieth-centuryAmerican racial ideology evolved along withthe racial requirement for citizenship: the legal definition of "white"and therule of racialunassimilability. The originof theseconcepts may be foundin theNational- ityAct of 1790,which granted the right to naturalizedcitizenship to "freewhite persons."After the Civil War and thepassage of theFourteenth Amendment, Congress amendedthe Nationality Act to extendthe right to naturalizeto "personsof African nativityor descent."The latterwas a gratuitousgesture to theformer slaves. No one seriouslybelieved that "the [N]egroesof Africa[would] emigrate," a federaljudge explainedin 1880, "whilethe Indian and the Chinamanwere in our midst,and at ourdoors and onlytoo willingto assumethe mantle of American sovereignty."36 The NationalityAct of 1870 thus encoded racialprerequisites to citizenship accordingto thefamiliar classifications of blackand white.European immigrants fit intothat legal construct as whitepersons: between 1907 and 1924, nearly1.5 mil- lion immigrants,nearly all fromEuropean countries, became American citizens. Althoughnativists commonly referred to southernand easternEuropeans as "undesirableraces," their eligibility to citizenshipas "whitepersons" was neverchallenged and thelegality of naturalizingEuropean immigrants was neveran issuein public and politicaldiscourse. The ChineseExclusion Act of 1882 declaredChinese ineligible to citizenship,but it remainedunclear where Japanese, Asian Indians,Arme- nians, Syrians,Mexicans, and otherpeoples that immigratedinto the United Statesin thelate nineteenth and earlytwentieth century fit in theblack-white constructof citizenshiplaw. Although in 1906 theUnited States attorney general held Japaneseand Asian Indiansto be ineligibleto citizenship,several hundred Japa- nese and Asian Indians obtained naturalizedcitizenship during the firsttwo decadesof the century.Between 1887 and 1923 the federalcourts heard twenty- fivecases challengingthe racial prerequisiteto citizenship,culminating in two landmarkrulings by the United StatesSupreme Court, Ozawa v. UnitedStates

35 In 1882 thefirst Chinese exclusion law barredChinese laborers from entering the United States for a period of tenyears. The law was renewedtwice and made permanentin 1904. Act of May 6, 1882, 22 Stat.58; Act of May 5, 1892, 27 Stat.25; Act of April29, 1902, 32 Stat. 176; Actof April27, 1904, 33 Stat.428. The Immigra- tionAct of 1917 providedfor a "barredzone," which included parts of Arabia,Afghanistan, India, Burma, Thai- land,Indochina, the Malay States,the East IndianIslands, Asiatic Russia, and thePolynesian Islands. Act of Feb. 5, 1917, 39 Stat.874. The McCarran-WalterAct abolishedall racialrequirements to citizenship.Act of June27, 1952, 66 Stat.163. On Chineseexclusion, see MaryCoolidge, Chinese Immigration (New York,1909); Alexander Saxton,The Indispensable Enemy (Berkeley, 1971); SuchengChan, ed., EntryDenied: Exclusionand theChinese Communityin America,1882-1943 (Philadelphia,1990); and Lucy Salyer,Laws Harshas Tigers:Chinese Immi- grantsand theShaping of Modern Immigration Law (Chapel Hill, 1993). On Japaneseexclusion, see Yuji Ichioka, TheIssei: The Worldof First Generation Japanese Immigrants, 1880-1924 (New York,1988); and RogerDaniels, ThePolitics of Prejudice: The Anti-Japanese Movement in Californiaand theStruggle for Japanese Exclusion (Berkeley, 1977). On AsianIndian exclusion, see JoanJensen, Passagefrom India (New Haven, 1988). 336Actof March6, 1790, 1 Stat. 103; Act of July14, 1870, 16 Stat.25; StanfordLyman, "The Race Question and Liberalism:Casuistries in AmericanConstitutional Law," InternationalJournal ofPolitics, Culture, and Society, 5 (Winter1991), 231.

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FRAN1<, I've been Soundsout of character, Somepeople say Americans won't recog- thinkingbout the future = CHARLI. What nizeus 'tilwe have10,000 tombstones in Now ofour countrymen s yohappened?in our San Mateo cemetery. there's AmericaThe. y sayyou 3| But I think I oughta an idea! canget citizenship )J OJ}join,F upi g t citizen- byserving, so I'm ship, and thenrun for gonnajoin up... rsdn

You'vegot $10,000 in life I signedup today,but who A suddencall-up, a suddenship- insurance,so yourfamily l knowswhen I'm shipping * out,and here I am in themiddle won'thave to worry, but out?It's supposed to be a ofa raging warin Europe! ifyou don't come back militarysecret... Let's share Timeto N let'em taste aliveour cartoonist'll a last drinknow! the o steelof my runout of s-I amuraisword!

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head! Anotherto ~~~~~~~~~~~~~thetorso!

HenryYoshitaka Kiyama's Four Immigrants Manga, published in 1931, tellsthe story of Japaneseimmigrants in San Franciscoduring the early twentieth century in comic stripformat. In thisepisode, Kiyama depicts the character Charlie as both idealisticand foolish:he wantsto buyland, marry a whitewoman, and becomea citizen-all rightsthat state or nationallaws deniedto Japanesein theUnited States. Reprintedby permission from The FourImmigrants Manga: A JapaneseExperience in San Francisco,1904-1924, byHenry (Yoshitaka) Kiyama, trans. by Frederik L. Schodt (Berkeley:Stone Bridge Press, 1999).

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CHARIE ? | !DWT KILO ANy ALL I prayed foryour Well,I've also got a knack .M\ > fnORE . THEY MADE %-zAS safe returnto the forstrategy, FRAN ,, and PEACE WEV MuST spiritof Kiyomasa here'sthe bootyto and here provet itit _ , \\\WX ;) GoGOsACK BACK toTO 9 t 7 ~areIfaffKdt(,back youj

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7 ~~~~~~~~~~8 Mynext strategy's to buy some I WANT HAvE land,marry awhite woman, and wenome J AV9 builda Ho mE. Butto dothatI I thatnou MCEk CIZE NpNs3HIP SIX have tbeoea citizen,so don'tfOrgEto the next stop's City H forgett C

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UM 'NOT FoR ORIENTALS f Afterthat, Ha ha ha! YET I feellike a ,WC Guessyou don't always _ > realidiot... havea knackfor *-<~~~~~'k strategyafter all,

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Reprintedby permission from The FourImmigrants Manga: A JapaneseExperience in San Francisco,1904-1924, byHenry (Yoshitaka) Kiyama, trans. by Frederik L. Schodt (Berkeley:Stone Bridge Press, 1999).

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(1922) and UnitedStates v. Thind(1923). In each case,the court's decision turned on whetherthe petitioner could be considereda "whiteperson" within the meaning of thestatute.37 The judicialgenealogy of the rulesof racialeligibility to citizenshipfollowed a raciallogic differentfrom that of the legislativediscourse surrounding the quota laws.While the latter emphasized eugenics and thesuperiority of Nordics,scientific racetheory proved inadequate to theclassificatory challenge that eligibility to citizenship,and Asiatic exclusion generally, required of thelaw. As Ian HaneyLopez has pointedout, the federalcourts' rulings in naturalizationcases increasingly rejected scientificexplanations in favorof commonunderstandings of race. No doubtthis was becausescience was revealed to be an unreliableguide to racialexclusion. The fewpeti- tionerswho successfully litigated their status as whitepersons did so withthe aid ofsci- entificrace theories. In 1909 a federalcourt in Georgiaruled that George Najour, a Syrian,was eligibleto citizenship.District Judge William Newman stated that "fair or darkcomplexion should not be allowedto control"determinations of race. He citedA. H. Keane'sThe Worlds People (1908), whichdivided the human race into four categories,noting that Keane "unhesitatinglyplace[d] the Syriansin the Caucasianor whitedivision." Using similar logic, federal courts admitted Syrians, Armenians, and AsianIndians to citizenshipas whitepersons in sevencases between 1909 and 1923.38 In Ozawa theSupreme Court struggled with the problem of racialclassification. The Courtacknowledged that color as an indicatorof racewas insufficient,given the"overlapping of racesand a gradualmerging of one intothe other, without any practicalline of separation."Yet, the Courtresisted the logicalconclusion that no scientificgrounds for race existed.It sidesteppedthe problemof classificationby simplyasserting that white and Caucasianwere one and thesame, concluding, with circularreasoning, that Japanese cannot be Caucasianbecause they are not white.39 The Court resolvedthis problem in the Thindcase, whichit heardjust a few monthsafter Ozawa. BhagatSingh Thind, a "highclass Hindu," had arguedhis eligibilityto citizenshipas a whiteperson based on hisAryan and Caucasianroots. Cit- ing anthropologicalexperts, Thind notedthat the Aryans of India are a "tall,long- headedrace with distinct European features, and theircolor on theaverage is not as darkas thePortuguese or Spanish."Because marrying outside of casteis strictlyfor- biddenin India,Thind argued that he was a "pureAryan."40 The governmentrejected Thind's claim to whitenessas ridiculous."In thepopu- lar conception,"it stated,"he is an alien to the whiterace and partof the 'white man'sburden'. . .. . Whatevermay be thewhite man's burden, the Hindu does not

37 Census Bureau,Historical Statistics of the UnitedStates, I, 114-15; Jensen,Passage from India, 247-48; Ichioka,Issei, 211; Ozawa v. UnitedStates, 260 U.S. 178 (1922); UnitedStates v. Thind,261 U.S. 204 (1923). The possibilitythat the petitioners might be legallydefined as blackwas neverconsidered, notwithstanding legal and social precedentthat treated Asians as akin to blackpeople. It would do the governmentno good to arguethat Chineseor Indianswere black because that would have made themeligible to citizenship.See Peoplev. Hall, 4 Cal. 399 (1854); Jensen,Passage from India, 12-14; Haney Lopez, Whiteby Law, 51-52. 38 Haney Lopez, Whiteby Law, 65-77; In reNajour, 174 F. 735-36 (N.D. Ga. 1909). 39 Ozawa v. UnitedStates, 197. 40Briefof Respondentat 10, 36, UnitedStates v. Thind.

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shareit, rather he imposesit." The Courtagreed, stating, "The word[Caucasian] by commonusage has acquireda popularmeaning, not clearlydefined to be sure,but sufficientlyso to enableus to saythat its popular as distinguishedfrom its scientific applicationis of appreciablynarrower scope." In Thindthe Court dismissed science altogether.The term"Caucasian," it said,"under scientific manipulation, has come to include far more than the unscientificmind suspects."Noting that Keane includedIndians, Polynesians, and theHamites of Africain theCaucasian race, the Courtcommented dryly, "We ventureto thinkthat the average well-informed white Americanwould learn with some degree of astonishmentthat the race to whichhe belongsis made up of suchheterogeneous elements." The Courtbelieved that the originalframers of thelaw intended"to includeonly the typeof man whomthey knewas white. . . [those]from the British Isles and northwesternEurope . . . bone of theirbone and fleshof theirflesh." Furthermore, the meaningof whitereadily expandedto accommodateimmigrants from "Eastern, Southern, and Mid Europe, amongthem Slavs and thedark-eyed, swarthy people of Alpineand Mediterranean stock."Those immigrantswere "received [as] unquestionablyakin to thosealready here and readilyamalgamated with them."'41 The Court'sedict in Thind-"What we now hold is thatthe words 'free white persons'are words of commonspeech, to be interpretedwith the understanding of thecommon man" -amounted to a concessionto thesocially constructed nature of race.Moreover, its acknowledgement of theassimilability of easternand southern Europeansand its insistenceon the unassimilabilityof Asiansrendered a double meaningto assimilation.For Europeans,assimilation was a matterof socialization and citizenshipits ultimate reward. Asians, no matterhow committedto American idealsor practicedin Americancustoms, remained racially unassimilable and unal- terablyforeign.42 AlthoughOzawa and Thindapplied to Japaneseand SouthAsians, respectively, theCourt made a leap in raciallogic to applythe rule of ineligibilityto citizenship to Koreans,Thais, Vietnamese, Indonesians, and otherpeoples of Asiancountries who representeddiscrete ethnic groups and, in contemporaryanthropological terms, differentracial groups. This involveda measureof casuistry,which used retroactive and circularreasoning. In thelast paragraph of Thindthe Court applied the rule of ineligibilityto citizenshipto thenatives of all Asiancountries, saying: It is not withoutsignificance in thisconnection that Congress, by the [Immigra- tion]Act of 1917 ... excludedfrom admission into this country all nativesof Asia withindesignated limits of latitudeand longitude,including the whole of India. This not only constitutesconclusive evidence of the congressionalattitude of oppositionto Asiaticimmigration generally, but is persuasiveof a similarattitude towardsAsiatic naturalization as well,since it is notlikely that Congress would be willingto acceptas citizensa classof personswhom it rejectsas immigrants.43

41Brief for the United States, 16, 19, ibid.;ibid., 209, 211. 42 US v. Thindat 213; JeffLesser, "Always 'Outsiders': Asians, Naturalization, and theSupreme Court," Amer- asiaJournal, 12 (no. 1, 1985), 83-100. 43United States V. Thind, 215.

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Takao Ozawa (c. 1916). Ozawa emigratedfrom Japan as a child,attended the University of Californiaat Berkeley,and claimedhis rightto naturalizedcitizenship on grounds thathe had assimilated,saying "at heart I am a trueAmerican." In Ozawa v. UnitedStates (1922) and UnitedStates v. Thind(1923), the SupremeCourt ruled that Japanese, South Asians, and all Asiaticswere ineligible to citizenshipunder federallaws, restricting naturalization to "whitepersons" and "personsof Africannativity and descent." Photocourtesy of Yuji Ichioka.

In 1923, on the heels of Ozawa and Thind,the Court issued fourrulings uphold- ing Californiaand Washingtonstate laws proscribingagricultural land ownershipby aliens ineligibleto citizenship.Those laws had been passed in the 191 Os to driveJap- anese and otherAsians out of farming.In Terracev. Thompson,the Court held that the alien land laws fellwithin the states'police powersto protectthe public interest. Ironically,Japanese had takenup agricultureduring the firstdecade of the centuryin the belief that farmingwould facilitatepermanent settlement, civic responsibility, and assimilation.But if Japaneseembraced the Jeffersonianideal, the nativistswho dominated Progressivepolitics on the PacificCoast concluded thatJapan was con- spiringto take California away fromwhite people. In a typicalstatement, United

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Statessenator James Phelan, formerly the mayorof San Franciscoand forthirty yearsa leadingCalifornia exclusionist, claimed in 1920 thatJapanese land colonies in MercedCounty "would have destroyed that section for white settlement . .. and thedesirable element."44 In thealien land law cases,the Court did not addresswhether Japanese or other Asians were eligible to citizenship.That had alreadybeen decided-indeed, naturalized-byOzawa and Thind.The Courtcontended that the alien land laws did notdiscriminate against Japanese because the laws applied to all aliensineligible to citizenship,eliding the racial foundation of theconcept. The Courtheld thatit was logicaland necessaryto distinguishbetween citizens and alienswhen consider- ingland ownership, claiming, "Perfect uniformity of treatmentof all personsis nei- therpractical nor desirable.... classificationof personsis constantlynecessary [and] musttherefore obtain in and determinelegislation." The Courtasserted, "One who is nota citizenand cannotbecome one lacksan interestin, and thepower to effectually workfor the welfare of thestate, and so lacking,the state may rightfully deny him the rightto ownor leaseland estate within its boundaries. If one incapableof citizenship maylease or ownreal estate, it is withinthe realm of possibilitythat every foot of land withinthe state may pass to theownership of non-citizens."In thisway the Court bothrefined and obscuredthe racial logic embedded in theconcept of ineligibility to citizenship,rendering invisible its premise of racialunassimilability.45 Together,the naturalizationand land cases solidifiedthe concept"ineligible to citizenship,"providing the basis forAsiatic exclusion in the ImmigrationAct of 1924. Thereis no directevidence that the Supreme Court intended to influencethe characterof immigrationlegislation. But the timingof the decisions,coincident withthe congressionaldebates over immigration restriction, is striking,especially sinceOzawa and Thindhad languishedon thedocket since World War I.6 The SupremeCourt rulings on Asiansin 1922-1923 and theImmigration Act of 1924 thuscompleted the legal constructionof "Asiatic"as a racialcategory. The "nationalorigins" of Asianshad becomethoroughly racialized. This constructof race,based both on nationalityand "common"or subjectiveunderstandings of race, differedfrom the languageof eugenicsthat dominated the legislativediscourse of immigrationrestriction, which was basedon scientificrace theory. Yet, the racializationof Asiannationalities was consistentwith the overarching logic of thelanguage in theImmigration Act of 1924, which,at theformal level, was basedon categories of nationalityand not of race.The act thusfit the modern tenor of classifyingthe

T4Terrace v.Thompson, 263 U.S. 197(1923) at 221. Eight states restricted orprohibited aliens ineligible to cit- izenshipfrom taking or holding real estate: Arizona, California, Idaho, Kansas, Louisiana, Montana, New Mexico, and Oregon.The SupremeCourt also upheldalien land lawsin Porterfieldv. Webb, 263 U.S. 225 (1923); Frickv. Webb,263 U.S. 225 (1923); and Webbv. OBrien,263 U.S. 313 (1923). JamesPhelan is quotedin U.S. Congress, House, Committeeon Immigrationand Naturalization,Japanese Immigration, 66 Cong., 2 sess.,July 12-14, 1920, p. 20. On alien land laws,see Milton Konvitz,The Alien and theAsiatic in AmericanLaw (Ithaca,1946), 161, 187-89; Ichioka,Issei, 146-56. 45 Truaxv. Corrigan,257 U.S. 312, citedin Terracev. Thompson,263 U.S. at 218; Terracev. Thompson,263 U.S. at 221. 46 Ichioka,Issei, 223.

This content downloaded from 131.94.16.10 on Mon, 28 Oct 2013 21:53:09 PM All use subject to JSTOR Terms and Conditions 88 The Journalof American History June1999 worldinto nation-states and avoidingexplicit racial language in thelaw. However, theunderlying assumptions in theconstruction of thosecategories diverged in rela- tionshipto Europeansand Asiatics.The racialand nationalidentities of theformer becameuncoupled while those of thelatter became merged. The divergencepointed to a raciallogic that determined which people could assimilateinto the nation and whichpeople could not. Thus, the shift in formallanguage from race to nationalori- gindid notmean that race ceased to operate,but rather that it becameobfuscated.

FromConquered Natives to Illegal Aliens

If Congressand the Courtdefined Asiatics as definitelynot white,they found the problemof raciallyclassifying Mexicans much more vexing. In thelate 1 920s theCali- forniaJoint Immigration Committee and othernativist organizations sought to restrict immigrationof Mexicanson groundsof theiralleged racial ineligibility to citizenship. But not onlydid agriculturalinterests in the Southwestand diplomaticand businessinterests in LatinAmerica impede restrictions on immigrationfrom Mex- ico, Mexicansresisted easy racial classification because they fit no cleartype. The historyof theSouthwest as formerMexican territory, annexed by the United Statesas a resultof theMexican-American War, further complicated the meanings of race and citizenship.To be sure,Anglo-Americans never considered Mexicans theirracial equals and, moreover, regarded them with the suspicion they had histori- callyaccorded genotypically mixed peoples. Yet, paradoxically, conquest mitigated theracialization of Mexicansin theUnited States. The Treatyof GuadalupeHidalgo, whichspecified the terms of Mexico'sdefeat in 1848, gaveMexico's northern half to theUnited States and stipulatedthat all inhabitantsin theceded territorywho did noteither announce their intention to remainMexican citizens or leavethe territory in one yearwould automatically become citizens of theUnited States. American cit- izenshipin thisinstance was not consistentwith the liberal tradition of citizenship byconsent. Rather, it indicatedMexicans' new status as a conqueredpopulation.47 In 1929 Secretaryof LaborJames Davis advisedAlbert Johnson of the House immigrationcommittee (coauthor of theImmigration Act of 1924) thatthe prece- dentof massnaturalization made it impossibleto applythe rule of racialineligibility to Mexicans.The rightto naturalizeunder the terms of thetreaty had beenupheld by a federalcourt in 1897, whenRicardo Rodriguez, a thirty-seven-year-oldnative

47 Gutierrez,Walls and Mirrors,13-20; ReginaldHorsman, Race and ManifestDestiny: The Originsof Ameri- canAnglo-Saxonism (Cambridge, Mass., 1981), 210. For an estimatethat fewer than 2,000 of the75,000 Mexican nationalsin theceded territory remained Mexican citizens, see CareyMcWilliams, Northfirom Mexico: The Spanish- SpeakingPeople of the UnitedStates (New York,1968), 51-52. On citizenshipbased on territoriality,see Peter Schuckand RogersSmith, Citizenship without Consent: IllegalAliens in theAmerican Polity (New Haven, 1985), 40. The practiceof extendingcitizenship automatically was establishedbefore the Mexican-AmericanWar, in Anglo-Americansettlement of the Southwest.When Texas declaredindependence from Mexico in 1836, the TexasConstitution recognized Mexicans as citizensof therepublic. In 1845, whenTexas joined theUnion, Con- gressrecognized all the citizensof the formerrepublic as citizensof the UnitedStates. The Californiaconstitu- tionalconvention of 1849 grantedMexicans the same citizenshiprights as whitepersons. See TomasAmalguer, RacialFault Lines: The Historical Origins of WhiteSupremacy in California(Berkeley, 1993), 55-56.

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of Mexicowho had livedin San Antoniofor ten years, petitioned to becomea citizen in BexarCounty. The attorneysof thecourt contested his eligibility on grounds that"he is not a whiteperson, nor an African,nor of Africandescent." In district court,Judge Thomas Maxey noted that "as to color,he maybe classedwith the copper- coloredor red men. He has darkeyes, straight black hair, and highcheek bones." But, the judge concluded,because Rodriguez"knows nothing of the Aztecsor Toltecs, [h]e is not an Indian."48 The courtalso triedto ascertainRodriguez's understanding of and supportfor the Constitution.Rodriguez could not explainthe principlesof the Constitution,but thejudge attributedhis seemingignorance to his illiteracyand acceptedtestimony bya whiteacquaintance of Rodriguez,who said,"I knowthe man. I knowthat he is a good man,and know,. . . whateverthe principles of theConstitution might be, thathe woulduphold them if he knewwhat they were." The witnesssaid Rodriguez was peaceable,honest, and hardworking,of good moralcharacter, and law-abiding "to a remarkabledegree."49 JudgeMaxey conceded, "If thestrict scientific classification of theanthropologist shouldbe adopted,[Rodriguez] would probably not be classedas white."However, theconstitution of theTexas Republic, the Treaty of GuadalupeHidalgo, the Gads- den treaty,and otheragreements between the United States and Mexicoeither "affir- mativelyconfer[red] the rights of citizenshipupon Mexicans,or tacitlyrecognize[d] in themthe right of individualnaturalization." Noting that such agreements covered "allMexicans, without discrimination as to color,"Judge Maxey concluded that Rod- riguezwas "embracedwithin the spirit and intentof ourlaws upon naturalization."50 In reRodriguez foreshadowed Thind by acknowledgingthe subjectivityof racial identification.Despite thejudge's perception that Rodriguez was probablyIndian (or,at least,not white), the court bowed to Rodriguez'sown claimthat he was not Indian,Spanish, or Africanbut, rather, "pure blooded Mexican." Secretary of Labor Davis also recognizedthat self-identification impeded race-based immigration policy.He said, "theMexican people are of such a mixedstock and individualshave sucha limitedknowledge of theirracial composition that it wouldbe impossiblefor themost learned and experiencedethnologist or anthropologistto classifyor deter- minetheir racial origin. Thus, makingan effortto excludethem from admission or citizenshipbecause of theirracial status is practicallyimpossible."'51 Mexicans'legal status as whitepersons was unstable,however. By the late 1920s, a Mexican"race problem" had emergedin theSouthwest, impelled by contradictions wroughtby the burgeoning of commercialagriculture, an all-timehigh in Mexican immigration,and theformation of a migratory,landless agricultural proletariat and of segregatedcommunities. Immigration policy was deeplyimplicated in thereorga- nizationof the region'spolitical economy. Although Congress was unwillingto

48JamesDavis to AlbertJohnson, Feb. 14, 1929, HR71A-F16.1, Recordsof theHouse of Representatives,RG 233 (NationalArchives); In reRodriguez, 81 Fed. 337-338 (W.D. Texas,1897). 491Inre Rodriguez, 338. 50Ibid.,349, 354, 352, 354-55. 51 Ibid.at 337; Davis to Johnson,Feb. 14, 1929, p. 5, fileHR71A-F16.1, House Records.

This content downloaded from 131.94.16.10 on Mon, 28 Oct 2013 21:53:09 PM All use subject to JSTOR Terms and Conditions 90 TheJournal of American History June1999 imposequotas on Mexicanimmigration or to excludeMexicans on racialgrounds, it did seek to restrictMexican immigration by administrativemeans. In 1929 the UnitedStates consuls in Mexicobegan more strictly to enforceexisting provisions of theimmigration law-the ban on contractlabor, the literacy test, and theprovision excludingany person "likely to becomea publiccharge"-in orderto refusevisas to all Mexicanlaborers save those with prior residence in theUnited States. The policy had an immediateeffect. Immigration from Mexico, which had averaged58,747 a yearduring the late 1920s,dropped to 12,703 in 1930 and 3,333 in 1931.52 That decrease,however, was onlyin legalimmigration. Contemporaries estimated thatillegal immigration ran as highas 100,000a yearthroughout the 1 920s. Unoffi- cial entrywas notnew, as migrationacross the border had had an informal,unregu- latedcharacter since the nineteenthcentury. But duringthe 1920s Congressmade provisionsfor the enforcementof immigrationlaws thathardened the difference betweenlegal and illegalimmigration. It liftedthe statute of limitationson deporta- tionin 1924 and formedthe Border Patrol in 1925. In 1929 Congressmade unlaw- ful entrya felony,a move that was intendedto solve the problemof illegal immigrationfrom Mexico. The numberof Mexicansdeported formally under war- rantrose from 846 in 1920 to 8,438 in 1930. In addition,some 13,000Mexicans a yearwere expelled as "voluntarydepartures" in thelate 1920s and early1930s.53 By thelate 1920s theproblem of illegalimmigration became increasingly associ- ated withMexicans, as theycame to constitutehalf of thosedeported formally underwarrant and over 80 percentof all voluntarydepartures. Illegal European immigrantswho were apprehended by the Immigration Service were also morelikely to avoiddeportation. Euro-American communities had achieveda measureof political representationand could count on religiousand settlementorganizations to advocatetheir interests. Euro-American communities also had greateraccess to legal assistancethan did theirMexican counterparts. A contemporary study found that 20

52 Divine,American Immigration Policy, 62-68; U.S. Departmentof State,"Latest Statistics on Immigration fromMexico," May 12, 1930, HR71-F16.4, House Records;Census Bureau,Historical Statistics of the United States,I, 107. On theeconomic and socialtransformation of theSouthwest, 1900-1930, see CareyMcWilliams, Factoriesin theField: TheStory of Migratory Farm Labor in California(Santa Barbara,1971); Sanchez,Becoming MexicanAmerican; Gutierrez, Walls and Mirrors;Montejano, Anglos and Mexicansin the Making of Texas; LawrenceCardoso, Mexican Emigration to theUS (Tucson,1980); Mario Garcia,Desert Immigrants (New Haven, 1981); and CarlosVelez-1banfiez, Border Visions: Mexican Cultures of the Southwest United States (Tucson, 1996). 53 Manuel Garciay Griegoestimated the annual seasonal migration in the 1920s at 60,000 to 100,000. Man- uel Garciay Griego,"The Importationof MexicanContract Laborers to theUnited States, 1942-1964: Anteced- ents, Operation,and Legacy,"Working Papers in US-MexicanStudies (no. 11, 1981), 5; Robert McLean, "Tighteningthe Mexican Border," Survey, 64 (April1930), 29, 54; U.S. Departmentof Labor,Bureau of Immi- gration,Annual Report of theCommissioner General of Immigration to theSecretary of Labor, 1920-1931 (Wash- ington);Census Bureau,Historical Statistics of theUnited States, I, 115. The ImmigrationAct of 1924 liftedthe statuteof limitations,providing for the deportation at anytime of anyperson entering after July 1, 1924,without a validvisa or properinspection. Act of May 26, 1924, sec. 14, 43 Stat. 153. The 1925 statuteappropriated $1 millionto establisha land BorderPatrol, whose officers it empoweredto arrestwithout warrant any alien unlaw- fullyattempting to enterthe country "in his presenceor view."The Bureauof Immigrationconstrued the "act of entering"to be continuousuntil the alien reachedhis "interiordestination" in orderto apprehendwithout war- rantsuspected illegal immigrants anywhere within the nation's borders. Act of Feb. 27, 1925, 43 Stat. 1949. The 1929 statutemade unlawfulentry a misdemeanorand a secondunlawful entry a felony.Act of March4, 1929, 45 Stat. 1551.

This content downloaded from 131.94.16.10 on Mon, 28 Oct 2013 21:53:09 PM All use subject to JSTOR Terms and Conditions Race in AmericanImmigration Law 91 percentof aliensin deportationhearings in NewYork City had legalcounsel as com- paredto fewerthan 2 percentin theMexican border districts.54 "Illegal"became constitutive of "Mexican,"referring, not to citizensof Mexico, butto a whollynegative racial category, which comprised both Mexican immigrants and MexicanAmericans in theUnited States. The constructionof Mexicansas an illegaland illegitimateforeign presence in theirformer homeland played a central rolein thereorganization of theagricultural labor market in the 1920s.The devel- opmentof commercialagriculture required the creation of a migratorywork force and the destructionof all vestigesof the old patron-peonrelationships of mutual obligationthat had characterizedthe late-nineteenth-century ranch economy. Cast- ing Mexicansas foreigndistanced them both from Anglo-Americans culturally and fromthe Southwest as a region:it strippedMexicans of theclaim of belongingthey had had as natives,even as conquerednatives. (The formationof segregatedcom- munitiessimilarly served to detachMexicans from their claims of belonging.)The distancingwas a way by whichthe "other"was constructed,out of whatTzvetan Todorovcalled the failure(or refusal)to identifythe selfin the other.It differed fromthe colonial stance toward conquered native subjects, in whichthe otheris a wardto be converted,civilized, and otherwiseremolded in the colonialist'simage; no such sense of responsibilityinhered in commercialgrowers' relationship to migratorywage labor.Economic relations between absentee owners and migrant laborerswere impersonal. As one growertold the economistPaul Taylorin 1929, "The relationsbetween Mexican laborers and Americanemployers . . . areregulated undereconomic, not personal pressure."55 In 1930 the CensusBureau enumerated Mexicans as a separaterace, albeit with theimprecise definition of theMexican race as personsborn in Mexicoor withpar- entsborn in Mexicoand who "arenot definitelywhite, Negro, Indian, Chinese, or Japanese."Distinguishing a separaterace of illegitimateforeigners, official policy hardenedthe idea of Mexicansas a disposablelabor force and facilitatedthe depor- tationand repatriationof over 400,000 Mexicans(half of them childrenwith UnitedStates citizenship) during the Great Depression.56

54Max Kohler,Immigration andAliens in theUnited States: Studies of American Immigration Laws and theLegal StatusofAliens in theUS (New York,1936), 413. 55Tzvetan Todorov, The Conquestof America: The Questionof theOther, trans. Richard Howard (New York, 1984), 185; Paul Taylor,"Mexican Labor in theus: DimmitCounty, Winter Garden District, South Texas," Uni- versityof CaliforniaPublications in Economics,6 (no. 5, 1930), 448. 56JosephHill, "Compositionof the AmericanPopulation by Race and Countryof Origin,"Annals of the AmericanAcademy of PoliticalandSocial Science, 188 (Nov. 1936), 177-84. Hill'sclassification of Mexicanswas a halfmeasure between race and countryof origin.The censuscounted only first- and second-generationMexicans as a separaterace and continuedto countMexican Americans of latergenerations as "white."Paul Tayloresti- mated200,000 Americansof Mexicandescent in Coloradowere counted as whiteand not Mexicanin the 1930 census.Paul Taylor,"Mexican Labor in the us: MigrationStatistics IV," Universityof CaliforniaPublications in Economics,12 (no. 3, 1933). On repatriation,see Sanchez,Becoming Mexican American; Francisco Rodriguez Balderramaand RaymondRodriguez Balderrama, Decade of Betrayal:Mexican Repatriation in the1930s (Albu- querque,1995); Garcia y Griego,"Importation of Mexican ContractLaborers to the United States";Camille Guerin-Gonzales,Mexican Workers,American Dreams: Immigration, Repatriation, and CaliforniaFarm Labor, 1900-1939 (New Brunswick,1994); and AbrahamHoffman, Unwanted: Mexican Americans in theGreat Depres- sion:Repatriation Pressures, 1929-1939 (Tucson,1974).

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The unassimilabilityof Mexicansto theAmerican nation had long been argued by eugenicistsand nativists,but thehistorical circumstances of conquest,the labor market,and foreignpolicy made it impossibleto excludeMexicans formally in the samemanner as wereAsians. Nevertheless, the fundamental nature of restrictivepol- icy createdthe problemof illegalimmigration and placed it at the centerof the modernMexican race problem.

Lawmakershad invokedanthropology and scientificracism to createimmigration restrictionbased on nationalorigin, but it fellto civil servantsin the executive branchto deviseactual categories of identityfor purposes of regulatingimmigration and immigrants.Indeed, the enumeration and classificationof theAmerican people enabledsuch regulation. As VicenteRafael has suggested,the value of suchpopula- tionschedules to themodern state lay in their"render[ing] visible the entire field of [state]intervention." Thus theinvention of nationalorigins and unassimilableraces was as mucha projectof statebuilding as it was one of ideology.Indeed, if World WarI markedthe end of the"long nineteenth century," the United States emerged duringthe 1920s in fullmodern dress. Key to itsmodern persona was a comprehen- siverace policy that was unprecedentedin scope and embeddedin thelaw and in officialpractices at the federallevel. Immigration policy and its specificconstruc- tionsof raceenabled the state to demarcateand policeboth the external boundaries and theinternal spaces of thenation.57 Congress, the Quota Board, the Supreme Court, and the ImmigrationService producedand reproducedcategories of differencethat turned on both nationality and race,reclassifying Americans as racializedsubjects simultaneously along both axes.The ImmigrationAct of 1924 contributedto the racializationof immigrant groups around notions of whiteness, permanent foreignness,and illegality- categoriesof differencethat have outlivedthe racialcategories created by eugenics and post-WorldWar I nativism.Those legaciesremain with us to thisday, as Lisa Lowe has described,in "racialformations that are the material trace of history."58

57 VicenteRafael, "White Love: Surveillanceand NationalistResistance in the UnitedStates Colonization of the Philippines,"in Culturesof UnitedStates Imperialism, ed. AmyKaplan and Donald Pease (Durham, 1993), 188. 58Lowe, ImmigrantActs, 26.

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