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Jeremy Rhee at the Intersection of Immigration Histories

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Jeremy Rhee at the Intersection of Immigration Histories Jeremy Rhee At the Intersection of Immigration Histories: Studying Max Kohler’s Engagement with Chinese Immigration Litigation On April 14th, 1904, Toy Tong boarded a railroad car in Hamilton, Ontario. Ticket in hand, he was supposedly heading for Windmill Point in neighboring Preston, Ontario. Just six miles south of Hamilton, however, Tong covertly switched trains in Caledonia, boarding one destined to Buffalo, New York. Circumventing the scrutinizing eyes of American immigration commissioners, Toy Tong entered the United States through the US-Canadian border. At least 17,300 other Chinese between 1882-1920 slipped through the northern backdoors.1 Many of them took advantage of the transcontinental Canadian Pacific Railway to bypass the better-guarded American ports of entry such as Angel Island in San Francisco Bay. However, a ​ successful border crossing alone did not guarantee successful entry.2 Indeed, just six days after ​ their departure, Toy Tong and five of his companions were arrested in Hoboken, New Jersey, by the border inspector in charge, H.R. Sisson.3 Unable to present any identification or certificates proving legitimate entry, Tong faced immediate deportation. Despite bleak prospects, Tong found an ally in Jewish American attorney, Max James Kohler.4 1 “Toy Tong v. United States, 146 F. 343,” accessed September 27, 2019, https://advance-lexis-com.revproxy.brown.edu/document/?pdmfid=1516831&crid=555b70fa-ac1e-4bde-a9f0-d492a 84dc0fc&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4W-V0P0-003B-J0FP -00000-00&pddocid=urn%3AcontentItem%3A3S4W-V0P0-003B-J0FP-00000-00&pdcontentcomponentid=6387& pdshepid=urn%3AcontentItem%3A7XX0-5ND1-2NSD-K030-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp =sp79k&earg=sr0&prid=8c3f4da2-d2dc-486b-9a50-000c824b326f. ​ 2 Canadian border crossings became highly profitable smuggling enterprises that charged Chinese immigrants from $200 to $600 ($5812-$17,500 once adjusted for today’s inflation) to transport them from Canada to Buffalo, New York. Erika Lee, “Enforcing the Borders: Chinese Exclusion along the U.S. Borders with Canada and Mexico, 1882-1924,” The Journal of American History 89, no. 1 (2002): 58, https://doi.org/10.2307/270078 ​ ​ ​ ​ 3 Official Register of the United States: Persons in the Civil, Military, and Naval Service, Exclusive of the Postal ​ Service. U.S. Government Printing Office, 1913. ​ 4 “Toy Tong v. United States, 146 F. 343.” Toy Tong was one of hundreds of immigrants Kohler represented throughout his legal career. In New York, Kohler would join and eventually lead a cohort of Jewish American lawyers in waging a legal assault on the nativism of the US immigration regime. Allies in this noble fight included the future Supreme Court Justice Louis Brandeis, the first Jewish Cabinet Secretary Oscar Straus, and prominent diplomat and activist Simon Wolf, a friend to no less than four presidents: Lincoln, Grant, McKinley, and Wilson. Even among such luminaries, Kohler’s efforts stood out. While his colleagues focused on providing legal aid to Jewish immigrants, Kohler equally represented gentile immigrants as he did Jewish ones.5 Indeed, a quick look through his “List of Cases” archived at the American Jewish Historical Society suggests that Kohler distributed his attention equally among Jews, Chinese, and “Hindus.”6 News of Kohler’s efforts on behalf of Chinese immigrants even extended across the Pacific and reached the Qing Dynasty. Wu Tingfang, then Qing ambassador to the United States, formally recognized and thanked the attorney in a personal letter for “defending the rights of [his] countrymen.”7 Historians familiar with 19th century Chinese American history may not be familiar with Kohler specifically, but it was common practice at this time for Chinese district associations to ​ employ premier legal talent, whatever their ethnicity. The Chinese Six Companies in San Francisco, for example, hired elite litigators to represent them in court for a fee of approximately $75-$100 per case.8 But Kohler was unique; he never accepted payment for his work 5 William Forbath, “Jews, Law and Identity Politics” (Annual meeting of the The Law and Society Association, Westin St. Francis Hotel, San Francisco, CA, 2014), 36. 6 Ibid. 7 Letter from Wu-Ting-Fang to Max Kohler (November 27, 1901), Max J. Kohler Papers Box 10, Folder 14 (on file with the American Jewish Historical Society). 8 Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law, Studies ​ ​ in Legal History (Chapel Hill: University of North Carolina Press, 1995), 70. representing clients in immigration cases.9 In fact, according to a colleague, Kohler once even refused a handsome retainer from immigrant community leaders. Instead, he volunteered to represent them pro bono and successfully appealed their case to the Supreme Court.10 What drove Kohler to represent countless Chinese clients and become who some scholars consider America’s first Jewish civil rights lawyer?11 Max Kohler left a significant footprint on American jurisprudence. Fellow attorneys viewed him as the leading authority on all immigration matters—his services were not only requested by immigrant coalitions, but also by congressional committees that often depended on his expertise.12 Moreover, his briefs and writings continue to be cited frequently by immigration lawyers and officials today. Despite his impressive resume, Kohler went relatively unnoticed by the public during his lifetime. At his memorial service, another colleague noted that he lived as “an inconspicuous man.”13 Judge Irving Lehman of the Court of Appeals of the State of New York believed that Kohler’s aversion to personal publicity prevented the public from ever understanding the “full value of [his] work.”14 As immigration historian Maddalena Marinari recently confirmed, modern scholarship continues to overlook Kohler in favor of his better known colleagues. Mentions of Kohler, if any, focus on his work with the Jewish immigrant 9 See Max J. Kohler Papers Box 1, Folder 12 (on file with the American Jewish Historical Society). 10 Leon Huhner, “Max James Kohler,” Publications of the American Jewish Historical Society, no. 34 (1937): ​ ​ 296-297. 11 Forbath, “Jews, Law and Identity Politics,” 7. 12 Huhner, “Max James Kohler,” 296. 13 Max Kohler, Immigration and Aliens in the United States: Studies of American Immigration Laws and the Legal ​ Status of Aliens in the United States, n.d, x. ​ 14 Irving Lehman, “MAX J. KOHLER,” The American Jewish Year Book 37 (1935): 25. ​ ​ community and has failed to properly address his equally important engagement with the Chinese.15 By relying on Kohler’s personal letters, essays, and legal briefs, this paper will construct a once forgotten chapter of his narrative and address the following questions: What role did Max ​ James Kohler play in facilitating the legal dialogue between New York's Chinese Americans and the federal court systems? What differentiated Kohler from his Jewish colleagues? What were his motivations for assisting gentile, namely Chinese, populations? In answering these questions, this paper will engage two levels of analyses. First, it will trace the historical contexts of Chinese Exclusion and detail different ways in which the state apparatus responded to Chinese acts of resistance. As this section will highlight, technologies of exclusion that had once been constructed to obstruct Chinese entry flowed seamlessly to similarly oppress others, namely Jewish immigrants.16 Second, it will situate Max Kohler’s work within said evolving historical context and identify his motivations. Ultimately, this paper will argue that Kohler’s engagement with the Chinese was motivated by his father’s revolutionary platform of Classical Reform Judaism. As this paper will illustrate, the study of Max Kohler’s life and career acts as a connective tissue of the American immigration narrative, tying together the different modes of oppression, exclusion, and entry experienced by both Asian and Jewish peoples. 15 Maddalena Marinari, email to author, 6 December 2019. Marinari is the author of Unwanted: Italian and Jewish ​ Mobilization Against Restrictive Immigration Laws 1882-1965 (Chapel Hill: University of North Carolina Press, ​ 2020). 16 Lawrence M. Friedman, Total Justice (Russell Sage Foundation, 1985), 83. ​ ​ Chinese Exclusion, Resistance, and the “Habeas Corpus Mill” (1882-1905)17 Figure 1 - Poster Celebrating the Passage of the Chinese Exclusion Act18 A poster celebrating the passage of the Chinese Exclusion Act reads: “The Democratic Chinese Exclusion Act Has Been Signed by Our Democratic President.” February 28, 1882 was indeed a long awaited day of victory for organized labor and American nativists. In their view, Chinese workers had been a vile threat to white working men since the Chinese began arriving in the United States and its territories in the 1850s.19 Complaints by organized white labor about 17 The expression “habeas corpus mill” was coined by the San Francisco Chronicle to refer to Judge Ogden ​ ​ Hoffman’s court of the Northern District of California. It has since been popularized by legal scholar Christian G. Fritz. See Christian Fritz, “A Nineteenth Century ‘Habeas Corpus Mill’: The Chinese before the Federal Courts in California,” The American Journal of Legal History 32, no. 4 (October 1988), ​ ​ https://www-jstor-org.revproxy.brown.edu/stable/845742#metadata_info_tab_contents. ​ 18 Poster from Ric Burns and Li-Shin Yu, The Chinese Exclusion Act,
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