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Polygamy, Prostitution, and the Federalization of Immigration Law

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Polygamy, Prostitution, and the Federalization of Immigration Law COLUMBIA LAW REVIEW VOL. 105 APRIL 2005 NO. 3 ARTICLES POLYGAMY, PROSTITUTION, AND THE FEDERALIZATION OF IMMIGRATION LAW Keny Abrams* When Congress banned the immigration of Chinese prostitutes with the Page Law of 1875, it was the first restrictivefederal immigration statute. Yet most scholarship treats the passage of the Page Law as a relatively unim- portant event, viewing the later Chinese Exclusion Act as the crucial landmark in the federalization of immigration law. This Article argues that the Page Law was not a minor statute target- ing a narrow class of criminals, but rather an attempt to prevent Chinese women in generalfrom immigrating to the United States. Most Chinese wo- men migrating to the United States in the early 1870s were prostitutes or second wives in polygamous marriages. Congressfeared the unorthodox Chi- nese practices of polygamy and prostitution,believing that these customs were reflective of an underlying slave-like mentality that rendered the Chinese un- fit for democratic self-governance. By identifying and excluding Chinese wo- men as prostitutes, the law prevented the birth of Chinese American children and stunted the growth of Chinese American communities. The Page Law was an important statute not only because of its goals, but also because of its method. America's internationaltrade objectives and treaty obligations made outright restrictions on Chinese immigration untena- ble in 1875. By targeting marginalimmigrants-women, and prostitutes at that-Congresswas able to restrict Chinese immigration while maintaining a veneer of inclusiveness. Thus, in passing the first restrictivefederal immi- gration law, Congress managed to exclude a group of people by defining them as outside the boundaries of legal marriage. * Acting Assistant Professor, New York University School of Law, Lawyering Program. For their many helpful suggestions and insights, I thank Amy Adler, Barbara Allen Babcock, the late Kim Barry, Peggy Cooper Davis, Ariela Dubler, Barry Friedman, Brandon Garrett, Sally Gordon, Janet Halley, Kari Hong, Larry Kramer, Deborah Malamud, Hiroshi Motomura, William Nelson, Gerald Neuman, and Todd Stevens. Reed Davis and Nancy Rimmer provided excellent research assistance. Earlier versions of this article benefited greatly from presentations at the New York University Legal History Colloquium and the New York University Lawyering Program Faculty Workshop, and I thank everyone who participated. Finally, I want to thank Zachary Tripp of the Columbia Law Review for his thoughtful and careful editorial work. All errors are my own. COLUMBIA LAW REVIEW [Vol. 105:641 TABLE OF CONTENTS INTRODUCTION ..................................................... 642 I. CHINESE WOMEN AND THE GROWING ANIMOSITY IN THE WEST ....................................................... 648 A. The Economic Origins of Chinese Immigration ....... 649 B. Marriage, Morals, and the Threat of Chinese Women. 653 1. Chinese Marriage Customs: Polygamy and Prostitution ...................................... 653 2. The Link to Slavery .............................. 657 3. The Threat of Reproduction ..................... 661 II. IMMIGRATION LAW BEFORE THE PAGE LAW ................. 664 A. The Struggle for Control: The Federal Commerce Power Versus the State Police Power ................. 664 B. Laws Affecting Chinese Immigration Before the Page L aw ................................................. 668 1. Congress's Limited Involvement in Immigration .. 668 2. California's Anti-Chinese Statutes ................. 671 III. CALIFORNIA'S STRATEGY TESTED: THE "CASE or THE TWENTY- Two CHINESE W OMEN" ..................................... 677 A. Detention Under the 1874 Law ...................... 678 B. The Women's Testimony ............................. 680 C. The Expert Testimony ............................... 681 D. The Court's Ruling, and Ah Fook's Appeal ........... 684 E. The Federal Court Appeal: Ah Fong .................. 687 IV. THE FEDERAL EXCLUSION OF CHINESE WOMEN: THE PAGE LAw ..................................................... 690 A. Legislative History ................................... 692 B. The Statute .......................................... 695 C. Enforcem ent ......................................... 698 V. THE PAGE LAw AND THE DEVELOPMENT OF AN ANTI-CHINESE IMMIGRATION POLICY ....................................... 702 A. The Erasure of Equal Protection for Immigration: Chy L ung....................... ......................... 703 B. Paving the Way for the Chinese Exclusion Act ........ 706 C. Marriage and Post-Exclusion Act Regulation .......... 710 CONCLUSION ....................................................... 715 INTRODUCTION The regulation of marriage and morality played a pivotal role in the federalization of immigration law. Following the Civil War, as large num- bers of Chinese immigrants began to arrive on the West Coast, animosity toward the Chinese resulted in a dramatic transformation in immigration law from a relatively laissez faire, state-based system, to an extensive and restrictive federal regime. Animus toward the unorthodox Chinese prac- tices of polygamy and prostitution was an important factor animating the federalization of immigration law. Congress not only feared the Chinese 2005] POLYGAMY, PROSTITUTION, AND FEDERALIZATION 643 practices of polygamy and prostitution, but also believed that these cus- toms rendered the Chinese unfit for self-governance. Congress viewed these institutions as reflective of an underlying "slave-like" mentality, fun- damentally at odds with citizenship in a participatory democracy. Both prostitution and polygamy were deeply entrenched practices in Chinese immigrant culture-and were deeply antithetical to American conceptions of marriage as a consensual "love match." Indeed, most fe- male Chinese immigrants during this period were either prostitutes or second wives in polygamous marriages. The Fourteenth Amendment's command that "[a] 11 persons born or naturalized in the United States... are citizens of the United States"1 created an additional concern: The children of these "slave-like" Chinese immigrants would become Ameri- can citizens, and these practices would thus become part of the fabric of American democracy. To prevent this from happening, it was necessary to prevent Chinese women-especially prostitutes and second wives- from entering the country. In 1875, Congress passed the first federal restrictive immigration stat- ute: the Page Law.2 This law banned the immigration of women who had entered into contracts for "lewd and immoral purposes," made it a felony to import women into the United States for purposes of prostitu- tion, and included enforcement mechanisms specifically targeting Chi- nese women. The text, legislative history, historical context, and enforce- ment of the Page Law indicate that one of its animating purposes was to prevent the Chinese practices of polygamy and prostitution from gaining a foothold in the United States. Thus, concern about preserving tradi- tional American conceptions of marriage and family lies at the root of our federal immigration system. Both the federal and state governments targeted female Chinese im- migrants in an effort to protect traditional marriage and sexual norms. In the face of expanding federal power, California in particular struggled to maintain control over its Chinese population. To avoid the charge that it was impermissibly regulating "immigration," it crafted its exclu- sionary laws as regulations of public morals. While California could not exclude Chinese women for being "Chinese," it could exclude them by classifying them as outside the acceptable category of "wives." This proved to be a particularly effective method of regulation because such laws did not appear to directly target immigration. As the power to restrict immigration shifted from the states to the federal government, however, courts struggled to determine whether morals legislation targeting foreign prostitutes constituted regulation of vice properly exercised under the states' police power, or a foreign policy question that should be determined by the federal government. Federal courts ultimately struck down state legislation as an impermissible intru- 1. U.S. Const. amend. XIV, § 1. 2. Act of Mar. 3, 1875 (Page Law), ch. 141, 18 Stat. 477 (repealed 1974). COLUMBIA LAW REVIEW [Vol. 105:641 sion into the federal government's plenary power over international 3 relations. Virtually simultaneously, Congress passed the Page Law, inscribing the same anti-Chinese principles into a federal statute. Like the state stat- utes, the Page Law was introduced only after other attempts at directly regulating Chinese immigration had been tried and had failed. While the impediment to direct regulation of immigration at the state level was the federal courts' assertion of a federal immigration power, at the fed- eral level the impediment was the Burlingame Treaty with China, which prohibited restrictions on Chinese immigration. 4 Even though Califor- nia's statutes targeting "lewd or debauched" women had been exposed by the courts as impermissible encroachments on the federal immigration power, the Page Law sailed through Congress without any expressed con- cerns that it might contravene the Burlingame Treaty. Targeting women whose sexual behavior and familial structure fell outside an acceptable standard simply did not appear to be a restriction of immigration. By demonstrating the important role played by social ideals of mar- riage and morality
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