Arizona’s immigration law at the Supreme Court: Lessons for S.B. 1070 via the Case of the 22 Lewd Chinese Women

An 1874 Case About Accused Chinese Prostitutes Shows How the Supreme Court Should Handle Arizona’s Immigration Law

An 1874 Case About Accused Chinese Prostitutes Shows How the Supreme Court Should Handle Arizona’s Immigration Law

The law, lawyers, and the court.
April 23 2012 3:22 PM

The Case of the 22 Lewd Chinese Women

A crazy 19th-century case shows how the Supreme Court should deal with Arizona’s immigration law.

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Morrison ruled against the women: They were “lewd,” he said, and the state’s codes legitimately aimed to preserve California’s “well-being and safety.” But the fight was not over. The women went to the California Supreme Court, which heard the case the following week. They lost again. They sought relief from the Circuit Court for the District of California and here, they triumphed. The court’s decision was somewhat startling. In his September 1874 opinion in the case, Justice Stephen Field (a Supreme Court justice who was hearing lower-court cases, a practice at the time), recognized that state governments could invoke “the sacred law of self-defense”—the power to exclude convicts, lepers, those afflicted with incurable disease, and others likely to become public charges. But states’ power in this arena was tightly restricted in light of the federal powers. “Whatever outside of the legitimate exercise of this right affects the intercourse of foreigners with our people,” he wrote, “their immigration to this country and residence therein, is exclusively within the jurisdiction of the general government, and is not subject to state control or interference.” Field saw state immigration laws as atavistic holdovers from slavery, when governments had sought to “exclud[e] free negroes from their limits.” And he noted that “the most serious consequences,” including war, might result from a state government’s abuse of foreign nationals. Instead of remaining hostage to codes that protected states from free black people, the law needed to protect the nation from unruly states. Finally, Field argued that the California statute violated the women’s rights under the U.S. treaty with China, the recently passed Fourteenth Amendment, and an 1870 federal law that blocked states from imposing “onerous” conditions on a singled-out group of immigrants.

San Francisco’s anti-Chinese press was outraged; would the U.S. Supreme Court sustain what the Examiner called “the monstrous perversion of law”? Field wondered, too. In announcing his decision, he suggested that the government take the case to the Supreme Court. The case, now called Chy Lung v. Freeman, was argued in 1876 and marked the first time that a Chinese litigant appeared before the United States’ highest court.

In its ruling in March, the Supreme Court upheld the women’s victory, flattening California’s statute with language that bordered on the incredulous. For Justice Samuel Miller, who wrote the decision, the law was wrongheaded for three distinct reasons. First, it swelled a petty state official like Piotrowski with an arbitrary and potentially tyrannical power that, in practice, would create “systematic extortion of the grossest kind.” As he put it, “Whether a young woman’s manners are such as to justify the commissioner in calling her lewd may be made to depend on the sum she will pay for the privilege of landing.” Second, the law led to rushed, shallow profiling. “The commissioner has but to go aboard a vessel filled with passengers ignorant of our language and our laws,” Miller wrote, “and without trial or hearing or evidence, but from the external appearances of persons with whose former habits he is unfamiliar, to point with his finger … and say to the [ship’s] master, ‘These are idiots, these are paupers, these are convicted criminals, these are lewd women, and these others are debauched women.’ ” Finally, the law granted California the license to deflate the United States’ global standing or even prompt retaliation. If state governments had the power to deny immigrants entry, the court found, “a single State [could], at her pleasure, embroil us in disastrous quarrels with other nations.”


A legislative recipe for extortion; a capricious exercise of perception and power; a dangerous usurpation of federal control: What was not wrong with California’s immigration law? “It is idle to pursue the criticism,” Miller concluded. The statute was “in conflict with the Constitution of the United States, and therefore void.”

Federal authority over immigration did not guarantee justice. Congress went on to bar the immigration of Chinese laborers in 1882. Still, the Supreme Court’s decision in Chy Lung v. Freeman stands as a rebuke to Arizona today. Like California’s lewdness code, S.B. 1070 calls for hasty estimates by government officials based on “the external appearances of persons,” rather than judgments based on “trial or hearing or evidence,” as Miller put it. The law extends a state government’s power “far beyond what is necessary, or even appropriate” to protect state residents. And it is a state law that impinges on international affairs, “whose enforcement renders the general government liable to just reclamations.”

In his 1874 opinion, Justice Field, for his part, warned that the regulation of immigration by state-level authorities would inevitably lead to superficial profiling and the abuse of power. If states could take it upon themselves to deny immigrants the right to enter the country merely on suspicion of law-breaking or immorality, he prophesied, “a door will be opened to all sorts of oppression.” One hundred and thirty-eight years later, Arizona and a handful of other states have opened that door. It is now the Supreme Court’s job to close it.