When Arizona’s notorious immigration law passed two years ago—seemingly out of nowhere—supporters said the measure would merely “mirror” and “assist” federal immigration enforcement. S.B. 1070, which comes before the U. S. Supreme Court this week, in fact contained harsh new criminal penalties against immigrants in an effort to achieve “attrition through enforcement,” as the state of Arizona puts it. (Or, as Mitt Romney has called it, self-deportation.) The Supreme Court will consider the four provisions of S.B. 1070 blocked by a federal district judge in July 2010: provisions that require state and local police to try to determine the immigration status of anyone detained if reasonable suspicion exists that they are in the United States illegally; that criminalize an immigrant’s failure to register with the federal government and carry a registration card; that make it illegal for undocumented immigrants to work or solicit work; and that permit state and local police to arrest immigrants without warrants if there is probable cause to deport them because they have committed a crime. At stake is whether federal law trumps—and thus invalidates—these contested elements of state law.
Laws like Arizona’s have become familiar as Alabama, Georgia, Indiana, South Carolina, and Utah have passed versions of immigration control. At first, these moves by the states were surprising because federal primacy over immigration policy had gone virtually undisputed over the previous 100 years. Go back further in time, however, and you see that American society has gone the way of state-based crackdowns on immigration before. About a century and a half ago, for example, California set out to seal its borders against unwelcome arrivals. As today, the state’s immigration code met legal challenges, and the resulting Supreme Court decision helped firmly establish federal authority over immigration. One critical case involved 22 Chinese women who were identified by a California official as “lewd”—i.e., prostitutes—and barred from entering the United States under state law. Its story shows how 19th-century Supreme Court justices came to disapprove mightily of state efforts to regulate immigration.
The Case of the 22 Chinese Women, as it became known, began at 1 p.m. on Monday, Aug. 24, 1874, when California’s commissioner of immigration, Rudolph Piotrowski (himself an immigrant, from Poland), boarded the American steamer Japan, recently docked at San Francisco harbor, and inspected its passengers. The ship had set out from Hong Kong, and nearly all of the 600 people aboard were Chinese. Finding 22 of the female passengers suspicious—because they were traveling without husbands or children and their replies to his questions about their domestic circumstances were “perfectly not satisfactory”—he commanded the ship’s master to pay a bond of $500 for each woman to disembark. When the master refused, Piotrowski ordered the women detained onboard and forcibly returned to Hong Kong on the ship’s next voyage. They were, he said, “lewd.”
No one ever determined whether or not the women were prostitutes, but the answer mattered a great deal. California law required any ship’s master transporting “lewd and debauched women” to pay $500 bonds to the commissioner of immigration. As it happened, California officials did not work very hard to distinguish between “lewd and debauched” women and Asian women. The state had spent the previous decades implementing laws that extorted the Chinese with the goal of expelling them. A Foreign Miner’s Tax directed at Chinese miners had siphoned off roughly one-half their earnings; a Chinese Police Tax had been charged to most persons “of the Mongolian race.” Chinese adults were prohibited from testifying against whites in criminal or civil cases and Chinese children denied access to the state’s public schools. The Chinese, it was said, were arriving in overwhelming numbers to take jobs that, however low-paying, back-breaking, and life-threatening, belonged to Americans, and their “alien” language and culture threatened American morality and civilization.
Some anti-Chinese laws proved vulnerable when brought before the California Supreme Court. Meanwhile, by the 1870s the federal government was gathering strength as it re-engineered the South. “States’ rights” was, for a long moment anyway, the shrill cry of beaten slaveholders. By the middle of the decade, expanding federal authority and the remaining California laws aimed at driving out or subordinating the Chinese were headed for a direct collision.
The day after Piotrowski ordered the detention of the 22 women, someone—likely Chinese merchants—retained lawyers for them. At the four-day trial in San Francisco, the two sides grappled over state and federal power, the women’s rights, and about what a quick inspection through an interpreter could and could not tell you about an immigrant. The state argued that California had a right to protect itself against “pestilential immorality.” The women’s lawyers countered that their clients had certificates of transit and rights under the United States’ treaty with China, which guaranteed the “inherent and inalienable right of man to change his home and allegiance.” Called to the witness stand, the women protested their innocence; many insisted they had husbands, some in China and some in the United States. When a woman named Ah Fook, who told the court she had traveled to San Francisco with her sister in search of sewing work, burst into tears, insisting on her “good intention,” the other women joined her, “making the room echo with their cries and screams.” The bewildered judge hurriedly left the bench and the women were temporarily removed from the chamber.
As the trial progressed, lewdness proved to be soft legal ground upon which to build a barrier between legal and illegal immigration. A missionary testified that dissolute women in China wore a “flowered, gaudy kind of clothing,” but other witnesses disagreed. Judge Robert F. Morrison, noting the looseness of the women’s attire, decided that there would be “no indelicacy or impropriety in gazing down their sleeves.” The women’s lawyer “performed the operation” upon several of them, finding that all wore “some dress of gaudy color and material beneath their outer garment.” Lewdness was apparently a matter for eyeball jurisprudence.