Disoriented: Asian Americans, Law, and the Nation-State 9780814772393

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Disoriented

CRITICAL AMERICA General Editors: Richard Delgado and Jean Stefancic White by Law: The Legal Construction of Race Ian F. Haney López Cultivating Intelligence: Power, Law, and the Politics of Teaching Louise Harmon and Deborah W. Post Privilege Revealed: How Invisible Preference Undermines America Stephanie M. Wildman with Margalynne Armstrong, Adrienne D. Davis, and Trina Grillo Does the Law Morally Bind the Poor? or What Good’s the Constitution When You Can’t Afford a Loaf of Bread? R. George Wright Hybrid: Bisexuals, Multiracials, and Other Misfits under American Law Ruth Colker Critical Race Feminism: A Reader Edited by Adrien Katherine Wing Immigrants Out! The New Nativism and the Anti-Immigrant Impulse in the United States Edited by Juan F. Perea Taxing America Edited by Karen B. Brown and Mary Louise Fellows Notes of a Racial Caste Baby: Color Blindness and the End of Affirmative Action Bryan K. Fair Please Don’t Wish Me a Merry Christmas: A Critical History of the Separation of Church and State Stephen M. Feldman To Be an American: Cultural Pluralism and the Rhetoric of Assimilation Bill Ong Hing

Negrophobia and Reasonable Racism: The Hidden Costs of Being Black in America Jody David Armour Black and Brown in America: The Case for Cooperation Bill Piatt Black Rage Confronts the Law Paul Harris Selling Words: Free Speech in a Commercial Culture R. George Wright The Color of Crime: Racial Hoaxes, White Fear, Black Protectionism, Police Harassment, and Other Macroaggressions Katheryn K. Russell The Smart Culture: Society, Intelligence, and Law Robert L. Hayman, Jr. Was Blind, But Now I See: White Race Consciousness and the Law Barbara J. Flagg American Law in the Age of Hypercapitalism: The Worker, the Family, and the State Ruth Colker The Gender Line: Men, Women, and the Law Nancy Levit Heretics in the Temple: Americans Who Reject the Nation’s Legal Faith David Ray Papke The Empire Strikes Back: Outsiders and the Struggle over Legal Education Arthur Austin Interracial Justice: Conflict and Reconciliation in Post-Civil Rights America Eric K. Yamamoto

Black Men on Race, Gender, and Sexuality: A Critical Reader Edited by Devon Carbado When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice Edited by Roy L. Brooks Disoriented: Asian Americans, Law, and the Nation-State by Robert S. Chang Rape and the Culture of the Courtroom by Andrew E. Taslitz

Disoriented Asian Americans, Law, and the Nation-State

Robert S. Chang

a NEW YORK UNIVERSITY PRESS New York and London

NEW YORK UNIVERSITY PRESS New York and London © 1999 by New York University All rights reserved Library of Congress Cataloging-in-Publication Data Chang, Robert S. Disoriented : Asian Americans, law, and the nation-state / by Robert S. Chang. p. cm. — (Critical America) Includes bibliographical references and index. ISBN 0-8147-1521-4 (cloth : acid-free paper) 1. Asian Americans—Legal status, laws, etc. 2. Race discrimination—Law and legislation—United States. 3. Asian Americans—Social conditions. I. Title. II. Series. KF4757.5.A75 C48 1999 342.73'0873—dc21 98-58131 CIP New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1

Contents

Acknowledgments Introduction: Becoming Asian American

I 1

2

II

ix 1

A Meditation on Borders Dreaming in Black and White: Racial-Sexual Policing in The Birth of a Nation, The Cheat, and Who Killed Vincent Chin?

11

Centering the Immigrant in the Inter/National Imagination

27

Developing a Critical Asian American Legal Studies Bridge: Introduction to Part II

45

3

Why We Need a Critical Asian American Legal Studies

48

4

Narrative Space

61

5

A Narrative Account of Asian America

76

6

Mapping Asian American Legal Studies

98

III

From Identity Politics to Political Identities

7 8

Bridge: Introduction to Part III

109

Reverse Racism! Affirmative Action, the Family, and the Dream That Is America

110

One America: An Essay in Three Parts

123

Postscript: This Ain’t Oz

136

Notes Index About the Author

139 173 180

vii

Acknowledgments

For permission to reprint materials first published elsewhere, I would like to thank the following journals and presses: American University Law Review, Asian Law Journal, California Law Review, Harvard Latino Law Review, Hastings Constitutional Law Quarterly, New York University Press, La Raza Law Journal, and UCLA Chicano-Latino Law Review. What appears in this book are substantially rewritten forms of what appeared in these earlier publications. I have benefited greatly from feedback that I received when I presented parts of this book at various venues over the past few years. These include, in roughly chronological order, the Law and Identity Workshop at Boalt Hall in Berkeley in October 1994; the 1995 Association of American Law Schools Annual Meeting; the 1995 Critical Networks Conference at Georgetown and American Universities; the 1995 Asian Pacific American Law Professors Conference at John Marshall College of Law; the Latina/o Law Professor Colloquium held in conjunction with the 1995 Hispanic National Bar Association Meeting; the Faculty Speakers Series at the Washington College of Law at American University; the 1995 AALS Workshop for Law Teachers of Color; Symposium on the Meanings of Merit at Hastings College of Law; the 1996 Western Law Teachers of Color Conference; the 1996 Asian Pacific American Law Professors Conference at UCLA; McGeorge School of Law; the Literature Department Faculty Colloquium Series at the University of California, San Diego; the Center for the Study of Race and Ethnicity, University of California, San Diego; the Legal Theory Workshop at Santa Clara University School of Law; the Center for the Study of Race at the University of Florida College of Law; and the 1998 Southern California Asian American Studies Conference at the University of California, Irvine. I am especially indebted to Richard Delgado and Jean Stefancic for their unwavering support and for their careful attention to my text. Special thanks go to Maggie Chon, Adrienne Davis, and Todd Hughes, who

ix

x | Acknowledgments

listened with great patience as I read paragraphs and pages over the phone. I would also like to thank Keith Aoki, Jerome Culp, Ibrahim Gassama, Neil Gotanda, Angela Harris, Sharon Hom, Lisa Ikemoto, Jerry Kang, Peter Kwan, Cynthia Lee, Jayne Lee, Nancy Levit, Juan Perea, Sherene Razack, Frank Valdes, and Leti Volpp for their help in developing these ideas. For excellent research assistance, I would like to thank Melinda Aiello, Chuck Coleman, Alice Hsu, Arleen Delos Santos, Roberto Hong, Lee Smith, and Tuyet Tran. My gratitude also extends to my former school, California Western School of Law, where the bulk of this book was written. I would especially like to thank Sandy Murray who, as head of faculty support, made sure that things got done. I have also had the pleasure of working with the editors of various journals and would like to thank them for their help.

Introduction Becoming Asian American

Identity has become a keyword in contemporary politics. Like any other keyword, it bears not one unitary meaning but a range of competing definitions and uses, as different actors invest different meanings in one and the same sign. So even if we are not sure about what “identity” really is, we can say that it acts as an essentially contested concept. In this sense, whatever it is, identity becomes an issue when it is in crisis. —Kobena Mercer, Welcome to the Jungle

To bastardize Simone de Beauvoir’s famous phrase, one is not born an Asian American, one becomes one. For myself, being Asian American did not occur solely through an accident of birth. I was born in Korea and came to the United States at an early age. Being Asian American is something I became and perhaps am still becoming. In a different context, Calvin Coolidge said, “We have a great desire to be supremely American.”1 Identity is understood here to be more than descriptive. Thus, my claim to an Asian American identity is to be taken as aspirational and not merely descriptive. For much of my life, I thought of myself as Oriental. I learned otherwise when my brother told me that “Oriental” was derogatory and that I was Asian American or, more specifically, Korean American. Yet rather than finding comfort in my newfound identity, I found myself feeling oddly dislocated. I began to wonder about who I had been, who I am now, and who I will become. What will be the next incarnation of my identity? Does it matter that many people continue thinking of and calling me “Oriental”? At a recent critical race theory workshop, several of us of Asian descent took a cab to a restaurant. The Pakistani cab driver expressed surprise at seeing so many “Orientals.” One member of our group tried to explain to him

1

2 | Introduction

that we didn’t like being called Oriental, that we regarded the word as a racist label, but he didn’t understand. Another person tried a different approach and asked him if there were any names that Pakistanis didn’t like to be called. Our driver became animated and wanted to tell us those words. After more efforts on our part, he finally understood our dislike of the Oriental label. Yet even the new name, Asian American, contains a certain ambiguity. In the same way that “Oriental” is defined relationally or oppositionally to “Occidental,” Asian American is defined relationally to unmodified Americans. Elaine Kim comments that even “Asian American,” “[l]ike its predecessor, ‘Oriental,’ . . . was created in the West from the need to make racial categorizations in a racially divided or, at least, a racially diverse society.”2 One might question this freedom to name oneself, powerful though it may seem, because even as it liberates us from the racist “Oriental” label, it remains firmly embedded within a racial (and perhaps racist) taxonomy. Further, it would be naive to think that those choosing their name may constitute it as they desire. The name itself becomes a site of contestation, with different groups engaged in a struggle over its meaning(s). Does “Asian American” denote an ethnic or racial identification? Phrased differently, are Asian Americans more like Italian Americans or Black Americans? Is a person of mixed ancestry, the child of Euro- and Asian American parents, Asian American? The answer to this question has serious consequences when a not-so-hypothetical university, interested in hiring an Asian American, has to decide whether such a person “counts.” Other questions arise from the way “Asian American” may erase other identities. What happens to gender, class, sexual orientation? In the context of feminist theory, there has been much criticism “from women who claim that the category ‘women’ is normative and exclusionary and is invoked with the unmarked dimensions of class and racial privilege intact.”3 The category “Asian American” has been and continues to be subject to similar criticism. What does it mean if we refer to first-generation Hmong refugees and fifth-generation Chinese Americans as Asian Americans? Or in the inverse, what would it mean for a first generation Hmong refugee and a fifth generation Chinese Americans to identify themselves as Asian Americans? Identity itself seems inadequate for this inquiry. When I went from “Oriental” to “Asian American,” how did my identity or the answer to the question of “who I am” change? Or instead of identity, perhaps Asian American describes one subject position, among others, that is available to me. Thus

Introduction | 3

depending on the context, I can occupy various subject positions: Korean, Korean American, Asian American, American. Identity is understood, then, as relational and contingent. For example, if I were to visit Korea, my poor facility with the Korean language would sometimes place me as “American” and not really “Korean”; in the United States, my position as “American” is less certain, and my “accentless” English often brings the question, “Where did you learn to speak so well?” This question is often followed by, “Where are you from?” which E. San Juan, Jr., identifies as not so far from the unasked but nevertheless present, “When are you going back?”4 This progression signals the questioner’s dream of my return. The questioner’s dream of return extends beyond wishing the return or exclusion of people who look like me. Having no external homeland, the nativist is left to construct one out of an imagined past. Unlike immigrants who are separated physically from their homeland, the nativist is separated temporally (and perhaps only temporarily) from his. But a return to the past is possible only in the future. The nostalgic recollection of an American past (or Paradise lost) is projected forward as an “America” that again might be. Faced with questions such as these, persons of Asian ancestry struggle to find our way in American society. Do we reach back to our (imaginary) homelands?5 Or do we reject them in our bid to become fully American? The Harlem Renaissance poet Countee Cullen asked similar questions in the context of African American identity. His poem “Heritage” begins this way: What is Africa to me: Copper sun, a scarlet sea, Jungle star and jungle track, Strong bronzed men and regal black Women from whose loins I sprang When the birds of Eden sang? One three centuries removed From the scenes his fathers loved Spicy grove and banyan tree, What is Africa to me? 6

Historian Arthur M. Schlesinger, Jr., cites to this poem “as evidence of a traditional African American indifference to Africa.”7 It seems, though, that Schlesinger misunderstands or has not read the entire poem. Literary critic Walter Benn Michaels comments:

4 | Introduction For although the scenes the father loved are initially presented as “unremembered” by the son, the tendency to forget (as if Africa were too distant to matter) is immediately reinterpreted as a requirement to repress (as if Africa were too near to be forgotten): “One thing only I must do/Quench my pride and cool my blood/Lest I perish in their flood, . . . Lest the grave restore its dead,” lest an apparently lost ancestral Africa turn out not only to be present but to be a force as strong or stronger than the Negro’s Americanization.8

We see then that Schlesinger misreads the ambivalence at the beginning of the poem and ignores such passages as the following: “So I lie who always hear/Though I cram against my ear/Both my thumbs and keep them there/Great drums beating through the air.”9 The Africa that he is trying to keep out is an Africa that is already inside.10 This poem ran through my head when I attended a Korean Cultural Festival at the University of California at San Diego. Drumming was a prominent part of the festival. Listening to the drums, I was thinking of the poem. I wanted those drums to be inside of me. I wanted my blood to sing with those drums. It did not happen. Instead, I felt very American as I was sitting there with the Korean drums outside of me. I asked myself, “What is Korea to me?” Is it something I have forgotten? I was three years old when I came to the United States. Or is Korea something I have repressed? I remember being a child-tyrant and forbidding my mother from speaking Korean in public. Is Korea a place? A thing? Or rather, is it an idea? What does it mean to forget or repress a place/thing/idea? What have I lost in my struggle to become American? What is it that I hope to recover? This sense of loss reminded me of the Japanese term kimin. Yuji Ichioka writes that “[t]he term kimin often appears in the writing of Japanese immigrants. Meaning an ‘abandoned people,’ this special term stems from the immigrants’ profound sense of rejection.”11 This sense of rejection was felt in a very profound way by Japanese immigrants following the attempt by a Japanese immigrant, Takao Ozawa, to become a naturalized U.S. citizen. The unsuccessful legal challenge, which was ultimately decided by the Supreme Court, entailed both the refusal of the Japanese government to support the litigation and the refusal of the United States to recognize the naturalization rights of Japanese immigrants and “contributed to their sense of having been reduced to ‘an abandoned people’ forsaken by both the mother country and the immigrant land.”12 But kimin seems too bleak. It does not capture the strength and vibrancy of various Asian immigrant groups as they struggled to make a home in the

Introduction | 5

United States. This is an ongoing struggle through which we have become and are becoming Asian Americans. Asian American, in contradistinction with Oriental, is in some sense a national identity, a claim to a proper place in America. Some perceive it to be an ethnic national identity, but I am at a loss to point to a monolithic Asian ethnicity or to some essential Asianness. This difficulty has led Yen Le Espiritu to speak of Asian Americanness as a panethnic identity.13 Other scholars such as Neil Gotanda discuss Asian Americanness as a “racialized” identity that is constructed through American orientalism (which has a different history and different specificities from European orientalisms).14 Both senses—that of a panethnic or racialized identity—link an individual with a collective identity. Yet what is my connection to others who perceive themselves (or are perceived) as Asian American? Do “we” exist only as an “imagined community”? The term “imagined community” is used by Benedict Anderson to define what is a nation: It is imagined because the members of even the smallest nation will never know most of their fellow-members, meet them, or even hear of them, yet in the minds of each lives the image of their communion. . . . [I]t is imagined as a community, because regardless of the actual inequality and exploitation that may prevail in each, the nation is always conceived as a deep, horizontal comradeship.15

This idea has a special resonance for me, especially in light of the usage by some writers, including myself, of the term “Asian America.” The titles of three recent collections each refer to “Asian America.”16 Although no authors discuss their use of the term explicitly, my intuition is that each author means something more than the narrow sense used by historian Roger Daniels, who explains: “When I speak of ‘Asian America’ . . . I mean selfconscious, residentially concentrated communities of individuals, much of whose daily business was conducted in the language of the homeland and whose chief cultural impulses came from the society the elders had left behind.”17 A survey of the contents of the collections reveals “Asian America” to denote something more than communities held together by residential segregation, language, or culture of the ancestral homeland. “Asian America” is not located in the bodies of its constituent members. Rather, “Asian America” conveys a sense of community, place, and cultural space, configured within and against the nation-form America. By “nation-form” I mean

6 | Introduction

something beyond the formal political entity known as the nation-state. America exists as an idea. Asian America, then, “is imagined because the members . . . will never know most of their fellow-members, meet them, or even hear of them, yet in the minds of each lives the image of their communion”; and Asian America “is imagined as a community[ ] because . . . [it is] conceived as a deep, horizontal comradeship.” This is not to say that Asian America is a static, stable concept. Asian America, like Asian American identity, exists as contested terrain. This struggle over Asian America and Asian American identity coincides with the larger national identity crisis occurring in the United States. The debate surrounding language, multiculturalism, and immigration is really a struggle over the meaning of America. With the end of the Cold War and the demise of the Soviet Union and the Eastern bloc against which the West had defined itself, attention in various nations has (re)turned inward. Chantal Mouffe comments on this trend in Western Europe, where the radical right has turned its attention to “the ‘enemy within,’ the immigrants, which are presented by the different movements of the extreme right as a threat to the cultural identity and national sovereignty of the ‘true’ Europeans.”18 In the United States, the threat of the “enemy within” to the cultural identity and national sovereignty of “true” Americans is supplemented by the threat of the “enemy without,” those yellow and brown hordes who are all but storming the gates. Control over our borders becomes a matter of national security. Not only is the nation-state at risk; perhaps more urgent is the claimed threat to the nation-form or idea of America. This national identity crisis, along with the anxiety it engenders, is not just a backdrop for the struggle over Asian America and Asian American identity. Rather, it is through the national identity crisis that Asian America and Asian Americans are being produced or constructed. And to reverse the gaze, it is through Asian Americans that “true” Americans come to know themselves. That which appeared natural turns out also to be produced or constructed. It is not only “Asian America” that exists as an imagined community; “America” itself is an imagined community. In looking at the history and current state of race relations, it saddens me that we have imagined our community in this way. We have allowed our imaginations to be bounded so that we are left with a nation full of borders that too easily become fault lines. We are left with people who live in transit, between their imaginary homelands and the mythic America. But let us

Introduction | 7

not forget the power of imagination. We can imagine and work toward a better community. This book is one such attempt. Part I (chapters 1 and 2) constitutes an extended meditation on the borders that operate in positive and negative ways to construct “America” as we know it. In chapter 1, I discuss the position of Asian Americans within America’s black/white paradigm. I introduce “nation” as a suppressed dimension in the racial paradigm, with family as a marker for race and nation. Family operates as a stand-in for race and nation, offering a convenient metaphor for talking about exclusion and inclusion. The story of who is permitted to become American is very much about the racial-sexual policing of the family that is America. I develop my point through three films, D. W. Griffith’s The Birth of a Nation, Cecil B. DeMille’s The Cheat, and Christine Choy and Renee Tajima’s Who Killed Vincent Chin? I examine how boundaries are constructed in different ways for different racial groups as a component of nation formation. In chapter 2, I continue my meditation on borders by examining the figure of the immigrant who embodies a central contradiction in allegories of America. America, a country of immigrants, is (once again) threatened by the immigrant. The immigrant is an ideal figure for examining the border, because an immigrant is a border crosser. However, the immigrant may learn that the border is not just a peripheral phenomenon, left behind once she has successfully entered the United States. She may learn that she carries the border with her. Although all immigrants are marked by the border, not all immigrants are marked in the same way. Some immigrants are able to “pass” while others (and sometimes even their U.S.-born descendants) remain perpetual foreigners. Part II (chapters 3, 4, 5, and 6) constitutes an attempt to develop a critical Asian American legal studies. Chapter 3 examines the current discourse on race and law, finding it lacking. This discourse has been circumscribed insofar as certain perspectives, those of Asian Americans, have largely been excluded from the conversation in traditional civil rights work and critical race scholarship. A natural solution to this problem is to include the narratives of the excluded. In chapter 4, I address two questions related to the use of narrative: why narrative should count and how narrative does count. This discussion takes place in the context of the often acerbic debate taking place in legal discourse about the use of narrative and race relations. I set forth a

8 | Introduction

framework to support the use of narrative that also serves as a theoretical framework for a critical Asian American legal studies. In chapter 5, I set forth a narrative account of Asian America, showing how narrative has been used effectively to address some of the problems facing Asian Americans. Chapter 6 maps different stages of Asian American legal studies. It examines the implications of postmodernism for Asian American legal studies and its goal of redressing oppression. One consequence of the postmodern stance I urge is that it problematizes the use of identity, such as Asian Americanness, as an organizing principle. Nevertheless, even in a postmodern world, identity retains cultural and political importance. In Part III (chapters 7 and 8), I attempt to take seriously the antiessentialist critique and the problems it poses for identity politics. I argue that we should move away from identity politics as we know it and work toward developing political identities based on shared political commitments. In chapter 7, I examine one especially divisive issue, affirmative action, and show how Asian Americans are being manipulated by neo-conservatives who claim to be interested in protecting Asian Americans from discrimination but in actuality are really interested in preserving white privilege. Chapter 8 is an essay in three parts. The first part discusses racial crossdressing to open up the space for a conscious manipulation of the boundaries of race. The second part sets forth in more detail how we might move from identity politics to political identities, using the goal of a radical and plural democracy as an organizing principle. The chapter ends with a look at Tiger Woods and the implications of multiracialism as we prepare to enter the new millennium.

1 Dreaming in Black and White Racial-Sexual Policing in The Birth of a Nation, The Cheat, and Who Killed Vincent Chin?

America dreams of race in black and white. By this I mean that the current racial paradigm has become naturalized so that race in America is generally understood to mean black and white. This notion of race limits people’s understanding and willingness to engage with the history and current situation of Asian Americans in the United States. Instead of being included as participants in conversations on race, Asian Americans are seen as interlopers. Yet this status as interloper is precisely why Asian Americans are important in discussions of race. Our existence disrupts the comfortable binary of the black/white racial paradigm in which the black racial subject is produced by and through its opposition to the white racial subject, and vice versa. The presence of other racial bodies challenges this construction of both. Inclusion of Asian Americans operates to denature—de-naturalize— the current paradigm. But what would a racial paradigm look like that was not simply black and white? How do we expand our notion of race in America without resorting to simple platitudes, statements such as, “Yellow is not black; yellow is not white.” Even accounts that place yellow between black and white in the racial hierarchy have limited power to explain how the different races have mattered in different ways in history and how racial subordination has been effected in law. Persons of Asian ancestry were juridically constructed as racially distinct from whites. The United States Supreme Court’s decisions in Ozawa v. United States (1922) and United States v. Thind (1923) established with finality the racial status of Asians as non-white.1 As non-whites, Asians were not permitted to become naturalized citizens. These cases were followed shortly by the 1924 Immigration Act that consolidated the racial bar against

11

12 | Dreaming in Black and White

Asians by prohibiting immigration by persons ineligible for citizenship.2 Asian exclusion was so successful that Asian Americans, in a sense, never really became part of the racial topography of America. However, this enforced invisibility—achieved by exclusion from the political body and through the literal exclusion from the geographic body of the nationstate—may reveal an important structural role that persons of Asian ancestry played in the formation of the modern American nation and its racial landscape. In addition to being a racial “Other” to whites, persons of Asian ancestry were constructed as a foreign “Other” to (white) Americans.3 Asians were so foreign that they were not to be allowed into the United States, let alone become citizens. Introducing this element of foreignness complicates the racial positioning of Asian Americans and reveals a suppressed, and usually unquestioned, national dimension in the way race is conceptualized. Race and nation are linked in such a way that they are necessarily constitutive of each other.4 Including the axis of nation in examining race allows us to understand the treatment of Asian Americans, blacks, Latinas/Latinos, Native Americans, and whites as part of a larger national project. It is the apparatus of the nation-state that has made and continues to make race matter. A focal point in this racial/national project is the family. Family offers a convenient way to talk about inclusion and exclusion. Walter Benn Michaels argues that, in the 1920s (the same period when Asian exclusion was completed), family became an important component in the reconceptualization of collective national identity: [I]t was in terms of familial relations (as opposed, say, to economic relations or regional or even generational relations) that the new structures of identity were articulated. America, A Family Matter was the title of Charles W. Gould’s nativist polemic of 1922. And, although Horace Kallen’s Culture and Democracy in the United States (1924) was directed against nativism, Kallen shared Gould’s model of national identity; according to him, the very idea of “nationality” was “familial in its essence.”5

Yet the importance of family and racial/national identity can be seen even earlier. In this chapter, I examine two films, D. W. Griffith’s The Birth of a Nation (1915) and Cecil B. DeMille’s The Cheat (1915), that presaged the trend discussed by Michaels. In both films, family operates as a stand-in for both race and nation and offers a convenient way to represent the dangers posed by certain bodies of color who pose a threat to the (white) American family. These dangers necessitate racial-sexual policing, a disciplining

Dreaming in Black and White | 13

of the transgressive sexuality of men of color and white women, in order to preserve the proper racial/national/familial order. I develop my discussion of Asian Americans and race/nation/family through a reading of these two fictional dramas, supplemented by the 1988 documentary, Christine Choy and Renee Tajima’s Who Killed Vincent Chin?

Policing the Family That Is “America” America is undergoing a national identity crisis, as evidenced by the debate over language, multiculturalism, and immigration.6 I see this crisis as a struggle over borders—borders that will define our national community and shape our national identity. Patricia Williams captures the sense of where we are headed in an essay entitled “Unbirthing the Nation.” In trying to understand the present crisis, she “wonder[s] how many of our present cultural clashes are the left-over traces of the immigrant wars of the last century and the beginning of this one.”7 I think her intuition is right, and there is much to learn about our current crisis by studying the late part of the nineteenth century and the early part of the twentieth. In addition to various sectional and class conflicts in the nation, the North was struggling with immigrants from eastern and southern Europe, the South was struggling with blacks, the West was struggling with immigrants from Asia, and the Southwest was struggling with Mexicans who had become American through conquest and the legal operation of the Treaty of Guadalupe Hidalgo.8 Out of this struggle, the country was reborn in its modern incarnation. The thesis that I will develop is that this rebirth was achieved through a racial compromise, one that is coming back to haunt us today. Although an examination of the Southwest and Mexican Americans—and for that matter, Native Americans—is necessary to explore fully the racial compromise on which the nation was reborn after the Civil War, I have limited the scope to white, black, and Asian, in part because of the films I have chosen to examine. Though I recognize the limitations of my choice, I will leave the fuller discussion to another time. The Racial Compromise in Black and White A classic story of rebirth can be found in D. W. Griffith’s The Birth of a Nation.9 In brief, the film tracks the breakup and reunification of the country by following a Northern and a Southern family through the Civil War,

14 | Dreaming in Black and White

Reconstruction, and Redemption. My focus is on how a divided North and South come together at the end of the film to restore the proper order with Negroes disarmed and disfranchised. In a key scene, the white Southern family is chased by the Negro militia and finds refuge in the cabin of two white Union veterans. As they fight off the militia, the intertitle reads: “The former enemies of North and South are united again in common defense of their Aryan birthright.” Together, they are ready to fight to the death. When the Negro militia is about to break into the cabin, you see one of the Union vets with his rifle upraised, ready to club to death his young daughter. Likewise, the family patriarch bares his daughter’s neck, ready to smash it with his pistol butt. Death by the hands of loved ones was preferable to capture and the (presumed) violation of the white daughters’ purity by the black bodies in the Negro militia. Klansmen come to the rescue at the last moment and are mythologized as the “defenders of white womanhood, white honor, and white glory, . . . restor[ing] to the South everything it has lost, including its white supremacy.” The improper sexual advances of blacks and mulattos have been thwarted and the racial sanctity of the white families has been preserved. The movie closes with a double marriage, the brother and sister from the Northern family marry the respective sister and brother of the Southern family, achieving through their literal union the symbolic reunification of North and South.10 The last intertitle reads: “Liberty and Union, One and Inseparable, Now and Forever!” The (re)birth of a nation. A Different Sort of Racial Compromise The rebirth of this nation, however, required more than the resolution of black/white conflict. Cecil B. DeMille’s The Cheat tells a parallel story involving Asian/white conflict, although on a smaller scale.11 It was released in 1915, the same year as Birth of a Nation. Like Birth of a Nation, which played on the white public’s fear of miscegenation generally and of the black male rapist specifically, The Cheat played on miscegenation fears, but this time the sexual transgressor is a Japanese male. Both involve white mob violence directed against men of color. The Cheat featured Sessue Hayakawa as Tori, a Japanese merchant on Long Island who enters the socialite set through his friendship with a married white woman, Edith Hardy, played by Fannie Ward. This role made Hayakawa a star, and he “became one of the most important male stars on Famous Players-Lasky’s roster and preceded Rudolph Valentino as an exotic matinee idol for female filmgoers.”12

Dreaming in Black and White | 15

The prominence Hayakawa achieved can be contrasted with the general treatment of Asians and Asian Americans in Hollywood, which had a rich tradition of featuring white actors in yellowface, including Marlon Brando, Katherine Hepburn, and the eminently forgettable actor who played Charlie Chan.13 In The Cheat, while Tori hosts a party, he guides Edith into his parlor to show her his private art collection. Gina Marchetti comments that “[w]hen Edith steps into his parlor, she enters a world that offers the forbidden possibility of a meeting of Japan and America within the sexual realm.”14 Her acceptance of a gift of Japanese cloth evidences “her willingness to be seduced by Tori’s wealth and sensuality.”15 The potential seduction is interrupted, though, by the entry of a stockbroker who informs her that all her money has been lost. The money was not hers to lose—it belonged to the Red Cross, for which she served as treasurer. The stockbroker leaves. She faints, and while she is unconscious, Tori steals a kiss. Her eyelids flutter and she comes to. Is Tori a would-be rapist or a Prince Charming? Although this ambiguity provides the film’s dramatic tension, it is ultimately irrelevant to the film’s ideological message: Tori’s transgressive foreign sexuality must be controlled whether he is the rapacious or seductive foreign Other. Edith, in dire straits, enters into an agreement whereby Tori gives her $10,000 for an unstated exchange. She restores the Red Cross fund and averts her public humiliation. In the meantime, her husband’s investments come through and he gives her the money, which she claims she lost playing bridge. She then goes to Tori’s house to give him the money. Tori refuses it, saying that was not the bargain. She says that she would rather kill herself than give herself to him. This scene is reminiscent of the scene in Birth of a Nation in which Mae Marsh jumps off a cliff to her death after being pursued by Gus, the rapacious black soldier. But here, when Tori offers Edith a gun and tells her to go ahead and kill herself, she refuses—perhaps the sexual threat of the Japanese man is not so great. After more argument, he forces an embrace. During their struggle he takes an iron from a hot brazier and brands her shoulder. This scene is heavily invested with meaning, as the opening scene shows him branding his possessions. She shoots him in the shoulder and runs off. Her husband Richard then arrives on the scene and is there when the police arrive. Richard knows his wife had been there. He takes the blame and is prosecuted for shooting Tori. After the trial, a jury of his peers pronounces Richard guilty. Edith then takes center stage and reveals the truth, baring her shoulder for all to see. This scene is shot so that the movie audience will see itself as part of the

16 | Dreaming in Black and White

courtroom crowd.16 The script calls for the men in the crowd to yell, “Lynch him! Lynch him!” and “urges men to ‘right the wrong of the white woman.’”17 The men in the crowd fight one another to get at Tori. Movie reviewers commented on the power of this scene: As noted in Moving Picture World, “the wrath of the audience bursts forth with elemental fury and there ensues a scene that for tenseness and excitement has never been matched on stage or screen.” Equally impressed, the New York Dramatic Mirror described the courtroom scene as “one of the most realistic mob scenes that has ever been produced upon the screen.”18

The 1915 Christmas Day edition of Moving Picture World describes a moviegoer who responded to this scene by muttering, “I’d like to be part of that crowd.”19 Marchetti observes that “[i]ronically, the ‘lynch mob’ in The Cheat forms within the ‘halls of justice,’ further legitimizing the viewer’s shared perspective with the angry mob.”20 The angry crowd is mollified when the judge overturns the verdict, pronouncing Richard Hardy a free man. The happy couple walk together down the aisle of the courtroom to cheers and congratulations as the movie ends. The walk down the aisle evokes a walk down another aisle with which they presumably began their matrimonial union. The courtroom is transformed into a church with the judge as minister and Edith and Richard as newlywed couple. Their union and the violence which polices their union gain legal and religious sanctification. The proper racial order has been restored and blessed. Violence, for the moment, has been deferred, although who knows what violence takes place off screen, after the credits have rolled. When the movie was re-released in 1918, the producers found it necessary to make one important change: “Since Japan fought on the side of the Allies during World War I, the villain’s ethnic, if not racial, identity was altered in the 1918 reissue that is presently in circulation.”21 A few intertitles were changed, and Tori emerged as Haka Arakau, the Burmese Ivory King. Asians do look alike, after all. Boundaries, Transgression, and the Exclusionary Project Birth of a Nation and The Cheat are both about maintaining proper boundaries that delineate the national community. In Birth of a Nation, the boundary created between black and white is, by necessity, an internal one

Dreaming in Black and White | 17

because of the continued presence of blacks within the United States. Griffith, though, had imagined a different solution: “The original ending of Birth, ‘Lincoln’s solution,’ showed masses of Negroes being loaded on ships; they were being sent back to Africa.”22 This scene, along with a quote by Lincoln against racial equality, was censored by the film industry’s National Board of Review, even though Lincoln favored emigration and spoke those words.23 Griffith had to settle for the less optimal solution of excluding them from the national community through physical terrorization, political disfranchisement, and economic disempowerment. In contrast, the ideological message behind The Cheat goes farther and holds out the possibility that the boundary against Asians may be erected at the geopolitical border. Shortly before the trial scene, the intertitle reads: “East is East and West is West and never the Twain shall meet.”24 Tori’s possession of Edith, through seduction or rape, cannot be tolerated, especially insofar as Edith represents the femininity (and hence vulnerability) of the West. But there is more. The “possibility of a meeting of Japan and America within the sexual realm” contains within it the possible meeting of Japan and America within the familial realm. If Edith and Richard represent the paradigmatic “new” American couple, Tori is a threat to the American family, and hence to the very future of America. The threat posed by Tori is twofold. The danger comes not only from Tori’s interest in Edith; remember that Edith, before coming to her senses, was interested in him. Tori is not only a desiring sexual subject—he is the object of sexual desire. This may be contrasted with the portrayal of black men in Birth of a Nation in which black men were constituted as desiring sexual subjects but never seriously the objects of white female sexual desire. This is not to say that Griffith was not worried about white female sexuality. One of his goals, “Griffith boasted, ‘was to create a feeling of abhorrence in white people, especially white women, against colored men.’”25 In The Cheat, Edith’s transgressive sexuality must be controlled just as much as Tori’s. In the film, this is achieved through the restoration of family when Edith and Richard are reunited. The reunion of Edith and Richard, like the marriages at the end of Birth of a Nation, symbolizes the restoration of the proper familial and racial order of the Union or America. Family, in both films, operates as a marker for nation, with whiteness providing the predicate for inclusion. Tori, the racialized foreigner, must be excluded from the American family, and Asians do not have to be let into the interior space of America.

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Constructing “America” through the Unifying Ideology of Whiteness Thus far, I have focused primarily on the exclusionary aspects of the boundaries constructed in the two films. The exclusionary project, though, is inextricably bound with the inclusionary one. While blackness and Asianness provided the racial predicate for exclusion in the two films, whiteness became the predicate for inclusion in the family that is America. The Unifying Force of Economic Anxiety and Entitlement Michael Rogin comments on the inclusionary project of Birth of a Nation: “The opposition between North and South in the film, as well as between immigrant and native in the history outside it, had been replaced by the opposition between white and black.”26 Whiteness, understood through its opposition to blackness, is offered here as a unifying ideology that has the power to transcend region, class, and ethnicity. But unity will come only to the extent that the (white) North and (white) South, and the (white) immigrant and (white) native, recognize their common whiteness. This is by no means a given, as whiteness is not a naturally existing phenomenon. Whiteness, like any other racial identity, exists as contested terrain and changes over time and space.27 The years following the Civil War and stretching into the early 1900s mark an important period during which whiteness was reconfigured in the United States. During this period, immigrants from Ireland (who began arriving in large numbers in the 1840s) and from southern and eastern Europe (who began arriving in large numbers in the 1890s) were portrayed as racially distinct from (and therefore a threat to) “real” Americans.28 David Roediger describes these immigrants as “not-yet-white ethnics” to acknowledge the ambiguous racial identity attributed to these groups during this period.29 As such, these immigrants faced racist and nativist hostilities, sharing commonalities with blacks and Asians in the United States. These commonalities were potentially strengthened by similar class interests as wage laborers. However, with a few notable exceptions, these commonalities did not lead to any cohesion between these outsider groups. Instead, “not-yet-white ethnics” worked actively to displace the racism and nativism directed against them by claiming “whiteness” and a proper place in America. Racism, directed against the “not-yet-white ethnics,” was displaced onto the “real” racial Other, blacks; nativism, transformed into nativistic racism, was displaced onto the “real” foreign Other, Asians.30

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A stark example comes from the participation of Irish immigrants in blackface minstrelsy and Asian exclusion. David Roediger comments that [t]he early minstrel stage, as the Black choreographer Leni Sloan has recently observed, often featured Irish immigrants beneath the blackface. Irish also took their places in the audience. Thus those most acutely experiencing the wrenching adaptation to urban wage labor helped to organize white working class longings, fantasies and dreams as projections upon supposedly oversexed, lazy and naive Black characters. That these adjectives fit the negative stereotyping of the Irish only made for greater psychic investment in minstrelsy’s illusion of white supremacy.31

This illusion of white supremacy and the claim of a shared whiteness created a sense that they were entitled to better treatment than blacks. This sense of entitlement is evident in an unattributed statement reported by Ronald Takaki by Irish workers, made during that period but containing a timeless quality: “In a country of the whites where [white workers] find it difficult to earn a subsistence,” they asked, “what right has the negro either to preference or to equality, or to admission?”32 This sense of entitlement also determined their attitude toward Chinese and later Asian immigrants. Irish American workers in the West often led the calls for the exclusion of Asian immigrants. Dennis Kearney, an Irish immigrant and one of the leaders of the Workingmen’s Party, exhorted his fellow members: ‘Are you ready to march down to the wharf and stop the leprous Chinamen from landing?’ ‘Judge Lynch is the judge wanted by the workingmen of California. I advise all to own a musket and a hundred rounds of ammunition.’ ‘I will give the Central Pacific just three months to discharge their Chinamen, and if that is not done, Stanford and his crowd will have to take the consequences.’ ‘The dignity of labor must be sustained, even if we have to kill every wretch that opposes it.’33

The Irish were not alone in this. Other white immigrant groups participated actively in deflecting racism and nativism onto Asians. An example is typified in the following resolution that was adopted by the United Mine Workers national convention in 1904: We . . . view with alarm the pouring of cheap Japanese labor into our western States. We believe Americans today, as in 1776, stand for independence and the noblest manhood; the Japanese laborer as we find him in our mines and other industries, stands for neither. . . .

20 | Dreaming in Black and White He holds firm allegiance to his native country, and scorns the idea of American citizenship. Morally and industrially he is a curse to the American nation, and should be excluded from our shores. Therefore, we pray Congress to enact a law excluding the Japanese as well as the Chinese.34

This resolution was proposed by the Wyoming delegation, which represented a largely white immigrant constituency.35 The call for racial exclusivity, motivated largely by self-interest and fear of competition, became an expression of American patriotism. Native and foreign-born whites were able to claim a common, spiritual kinship with the white founding fathers of America.

The Unifying Force of Sexual Anxiety and Entitlement The claim to whiteness is not just about asserting a proper place, through race, in the American nation. Remember that these claims were made in the context of a rightful or superior claim to jobs, franchise, and entry into the country. The racial claim of whiteness is used, then, to make economic, political, and physical inroads. It can, however, work in the reverse—economic strength, political power, and mere physical presence may be used to make racial inroads. The connecting point is sexuality.36 In a scene in Birth of a Nation, freed Negroes who are now members of the state legislature are shown holding placards that state, “Equal jobs, equal vote, equal marriage,” linking economic and political equality with miscegenation, as if one leads inexorably to the other. During this scene, the freed Negroes are shown eyeing the white women in the gallery who are removed for their own protection. Perhaps the greatest danger of equality is the prospect of miscegenation. Economic, political, educational, and residential integration lead to greater contact between the races, increasing the likelihood of interracial marriage.37 In The Cheat, it was in part the Japanese merchant’s status, wealth, and the sensuality of his possessions (acquired through his wealth) that almost seduced Edith, who embodies a developing consumer culture in which “men earn and women spend as a sign of genteel status.”38 It is noteworthy that Progressives in California believed that economic self-preservation was closely united with racial preservation. It was believed that, if the Japanese were al-

Dreaming in Black and White | 21 lowed to make economic inroads, it would only be a matter of time before they would make racial inroads. Inter-marriage and propagation of their race would impair the Anglo-Saxon racial purity so important to the Progressives’ concept of economic leadership.39

We see race, nation, economics, and sexuality as linked in such a way that all must be considered in order to make sense of any one part. The displacement of racism and nativism onto blacks and Asians proved effective. Rogin notes that “as blacks became a sign of the negative American identity, Progressives took [white] immigrants to the national bosom.”40 We might remember that Thomas Dixon, Jr., a Progressive and the author of The Clansman, on which Birth of a Nation was based, was a strong supporter of assimilation for all European immigrants, including Jews who could become white and American through their hatred of Blacks.41 Woodrow Wilson, a former schoolmate of Dixon, was once opposed to immigration by non-Nordic Europeans, but changed his position by the time he became president of the United States. During his presidency, he favored the immigration and assimilation of the Irish and eastern and southern Europeans. Also during his presidency, Wilson segregated the federal workforce and passed the 1917 Barred Zone Act, which eliminated immigration from a geographic zone that included much of Asia. Although there were setbacks in the acceptance of eastern and southern Europeans, much of the hostility was deflected onto blacks and Asians. To sum up, “not-yet-white ethnics” became white and “American” through their opposition to Blacks and Asians.42 The attribution of real racial difference and foreignness onto Asian immigrants allowed “not-yetwhite ethnics” to become white and not “really” foreign—in other words— American. If we include the national dimension, “not-yet-white ethnics,” through their claim to whiteness, became American. And so unity was gained, but through a compromise in which blacks and Asians were sacrificed. All of us are paying for this racial compromise today.

Racial-Sexual Policing in Who Killed Vincent Chin? Some have paid a greater price for this racial compromise than others. The documentary film by Renee Tajima and Christina Choy, Who Killed Vincent Chin?, tells the story of one such person who paid dearly for this racial compromise.43 Although there is no question as to who held Chin and who beat

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him with a baseball bat, the film complexifies the question of accountability to examine the link between Japan bashing and the physical violence inflicted on Chin.44 The Standard Account Vincent Chin was a twenty-seven-year-old Chinese American killed in 1982 by two white Detroit autoworkers. The standard account of the story is that it was a racially motivated killing involving the conflation of all Asian groups. According to one witness, the murdered Ronald Ebens said “that it was because of people like Chin—Ebens apparently mistook him for a Japanese—that he and his fellow employees were losing their jobs.”45 Ebens and his stepson, Michael Nitz, were charged with second-degree murder, but through a plea bargain, they pleaded no contest to manslaughter. They were given no prison time. Instead, they were each given probation for three years and fines of $3,780.46 When criticized for the light sentence, Judge Charles Kaufman defended himself by saying that in Michigan, sentences are tailored to the criminal and not just to the crime. According to him, since Ebens and Nitz had no previous criminal record, were longtime residents of the area, and were respectably employed citizens, he thought there was no reason to suspect they would harm anybody again. Hence, the light sentences.47

Judge Kaufman also defended the sentences by saying that if it had been a brutal murder, the men would be in prison. The fact that Vincent Chin lingered for four days before dying demonstrated that Ebens and Nitz had simply been administering a punishment that got out of hand. Kaufman was apparently unaware or ignored the fact that Chin’s brain had stopped functioning after emergency surgery and that he “lingered” for four days because his body was on a ventilator.48 Asian American communities were outraged by the sentences and organized to seek justice. The community group American Citizens for Justice was organized two weeks after the light sentences were handed down. They submitted a report to the Civil Rights Division of the United States Department of Justice, setting forth the factual and legal bases supporting the prosecution of Ebens and Nitz for federal civil rights violations.49 These efforts, and those of several California congressmen, led to civil rights charges being brought against the two men.

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Although both men were ultimately acquitted of the charges, the killing of Vincent Chin and the lax treatment of his killers helped to educate Asian American communities and the broader public about anti-Asian violence. However, the standard account tells a flattened story of race and/or ethnicity that ignores the dimensions of class, gender, nation, and sexuality. A Revisionist Account: The Force of Economic and Sexual Anxiety/Entitlement In order for Vincent Chin to become the focal point of organizing and politicizing people about anti-Asian violence, the unsavory parts of the narrative were suppressed. The standard narrative does not include the fact that the encounter between Vincent Chin and the two white autoworkers took place in a strip club where Chin was having a bachelor’s party.50 In the standard narrative where Chin is a victim of racial violence, we are uncomfortable with Chin’s participation in the objectification of women. The standard narrative also does not include the fact that it was Chin who threw the first punch, or the fact that in the parking lot after they were kicked out of the bar for fighting, Chin said, “Come on, you chickenshits, let’s fight some more.” This is not to say that Chin was not a victim of racial violence—my point is that this is not a simple case of an aggressor and victim and mistaken racial/ethnic identification. Bringing in the suppressed details provides a richer story involving race, nation, class, and sexuality. In the Fancy Pants Lounge, Ebens and Nitz were upset that Chin was enjoying the show. There may have been other showgirls, but one stripper was black, the other white. Chin gave a large tip to the white dancer and a small tip to the black dancer. The black dancer didn’t like the way Chin wanted to give her the tip, which we might presume was in her G-string, so she only received a small tip. We can imagine, then, that the white dancer permitted this way and got a larger tip. Furthermore, Ebens and Nitz were unhappy that Chin was enjoying the show. Why did Chin’s enjoyment make them unhappy? My thesis is that Ebens and Nitz were suffering a double displacement. People like Chin were making people like Ebens and Nitz lose their jobs. Even though Ebens was still employed as a foreman in an automobile plant, he clearly identified with laid-off autoworkers.51 But there was more. Chin was displacing them as (the rightful) consumers of sexual attention. Here we have economics, race, gender, and sexuality coming together in interesting ways. Loss of jobs entails a loss of masculinity. The loss of masculinity

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was caused by a racial and foreign Other, an Asian man who in many ways was just like them. The bonding that might normally take place between men in a strip club is disrupted by Chin’s Asianness. Further, the Asian man may be improperly consuming the sexual attention of a white woman, which, in part, he is able to do because he is doing well, economically, by displacing people like Ebens and Nitz from their jobs. We have, then, a double displacement along with a threat to racial purity, a threat to the very whiteness that provides their sense of place and entitlement in America.52 As I noted earlier, Vincent Chin throws the first punch. During the fight that ensues, Ebens hits his own stepson with a chair, causing a gash that required eleven stitches. This fight is broken up and they are forced to leave, but they encounter each other in the parking lot. Chin yells, “Come on, you chickenshits, let’s fight some more.” Ebens gets a baseball bat and Chin and his friend Jimmy Choi run away. Chin and Choi’s white friends are not menaced. Ebens and Nitz start their search. They recruit a stranger, a black man, paying him $20 to help them “find a Chinese guy” and “[bust] his head.” The search goes on for twenty or thirty minutes. Chin and Choi are spotted outside a McDonald’s restaurant. Ebens and Nitz approach them, using a parked truck to shield their advance. Chin sees them and yells to Choi to run. Choi escapes. Chin does not. Nitz grabs and holds Chin in a bear hug. Ebens strikes Chin the first of several blows with the baseball bat, a Louisville Slugger, the Jackie Robinson model. After a few more blows, Chin escapes and runs out into the street but then stumbles, falls. Ebens, standing over him, takes the first of what would be described by one off-duty policeman as homerun swings, striking the top of Chin’s head. The off-duty policeman and another who were inside the McDonald’s stop and arrest Ebens and Nitz. An ambulance arrives. The driver sees the injuries and brain-matter lying on the street. At the hospital, emergency surgery is performed but the injuries are too great. Chin is in a coma and declared brain dead. Four days later, the life support is unplugged. All in the Family In addition to racial violence and mistaken racial/ethnic identification, Ebens’s double displacement—from economic opportunities (through his identification with autoworkers who had lost their jobs) and from sexual opportunities (through Chin’s improper consumption of white female sex-

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ual attention)—marks the killing of Vincent Chin as an episode of racialsexual policing. It is ironic that this policing of the color line was accomplished not just with a baseball bat, which symbolizes America, but that the bat was a Jackie Robinson model, named after the black man who broke the historic color barrier in major league baseball. Further, this policing action was accomplished by family members, Ebens and Nitz. The fact that Nitz is not Ebens’s natural child doesn’t make him any less a part of the family. (Any)one can become part of the family that is America if you have the right contingent features. Unfortunately for Vincent, he did not have these right/white features. Race, if it is to serve as a basis for exclusion and inclusion, requires that sex be policed. Racial-sexual policing may be invoked to preserve economic and sexual entitlement. Racial-sexual policing may be driven by economic and sexual anxiety. Each of the three films I have examined features episodes of racial-sexual policing. The first film, Birth of a Nation, presents a standard narrative of race in America and the importance of controlling the black man’s transgressive sexuality. The white female body represents the national body which must be protected from violation. Both in and out of the film, this is achieved legally through antimiscegenation statutes and extralegally through lynch law. This is accompanied by a web of legal and extralegal methods to protect white privilege from economic and political competition from blacks, thus preserving the American national body as white. The film also offers the ideology of whiteness as a healing force that is able to reconcile regional (North/South) and class differences, allowing the rebirth of the American nation. The second film, The Cheat, presents a less standard narrative of America, but one that I have argued played an important part of the nation formation that was taking place around the turn of the century. In the film, the transgressive sexuality of an Asian man is presented as a threat to a white woman, and through her, the family that is America. In addition to the violence in and out of the film, the family that is America is protected by antimiscegenation statutes, and more broadly, from economic and political competition by discriminatory taxes, Alien Land Laws, licensing laws, immigration and naturalization restrictions.53 As discussed earlier, Asian exclusion was very successful. For the third film, the documentary Who Killed Vincent Chin?, we jump ahead many years to 1982. The racial compromise of the earlier era remains

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in force. Vincent Chin, born in China, was adopted at an early age by a Chinese American couple. The border and the color line are inscribed on his body, marking him as a foreign and racial Other, a legitimate target for nativistic racism. Through his construction as a foreigner—un-American— he, and others who look like him, help define America. America negotiated its earlier national identity crisis through a racial compromise driven in part by notions of economic and sexual entitlement/anxiety. As the nation approaches the new millennium, my hope is that we do not renew this racial compromise. The films are cultural documents of what happened and what came to be. If we can resist the urges that were nakedly displayed in those films, we might have a chance to enjoy this world that is bursting with color.

2 Centering the Immigrant in the Inter/National Imagination

How a nation treats the immigrant speaks volumes about the nation. This is especially true for the United States, which regards itself as a nation of immigrants. How the United States treats the immigrant is part of the “project of national self-definition . . . [which] includes not only deciding whom to admit and expel, but also providing for each alien’s transition from outsider to citizen.”1 This project of national self-definition with regard to the immigrant inevitably intersects with the national project with regard to this country’s racial minorities. A critical examination of this project may help us negotiate the tensions created by changing demographics as we decide what kind of nation we want to be. The immigrant signifies a person in a specific relation to the nation and contains within it a sense of movement—the immigrant has moved or is moving, crossing a border to get from “there” to “here.” What negotiations must the immigrant make in traversing the border to gain entry into the United States? Once “inside,” what other borders remain? The immigrant may learn after crossing the border that she has not left it behind, that the border is not just a peripheral phenomenon. She may learn, through the juridical and extrajuridical policing of the border, that she carries the border with her. Indeed, to be an immigrant is to be marked by the border. This is not to say that all immigrants are marked in the same way. Some immigrants are able to “pass” while others (and sometimes even their U.S.-born descendants) remain perpetual foreigners. One key component in the construction of “the immigrant” and its relation to “the nation” is the operation of the border in constructing national identities. The border is not something “found” on the geopolitical periphery. Instead, the border is itself a social construct, and it is through its flexible operation that the border helps to construct and contain the nation and the national community.

27

28 | Centering the Immigrant in the Inter/National Imagination

By defining the national, the border represents a bridge (and barrier) between the national and the international. The border connects (and interrupts) the inter/national such that it is the enabling condition for conceptions of both the national and the international. Some analysts, prompted by the increasing flow of information and capital across borders, have heralded the end of the nation-state.2 However, news of the nation-state’s demise is premature. Although borders have become increasingly porous to flows of information and capital, borders are constricting when it comes to the movement of certain persons. This is particularly curious, because it is the very flow of capital across national borders that helps create the flow of people. The “developed” world uses porous borders to extract resources from the rest of the world, disrupting the economies and cultures of the “developing” world. These disruptions push people out of their native lands and into “developed” nations in the form of immigrants. While “developed” nations are happy to extract resources, they seem less happy with the influx of immigrants. The result is the simultaneous and contradictory reconfiguration of nation-states through trade agreements such as GATT or NAFTA, which limit each nation-state’s exercise of sovereignty over its borders where trade is concerned,3 along with a rearticulation or renewal of the nationstate through their exercise of sovereignty over their borders when it comes to the movement of certain persons. This control is often expressed along problematic racialized lines. Stated differently, the nation-state is reasserting itself (and perhaps re-creating) itself through control over immigration. In this chapter, I begin by examining the entry of the immigrant into the racialized space of the United States. Centering the analysis on the immigrant tells us much about the political economies of race and nativistic racism, which operate to construct immigrant, racial, and national identities. I then turn to the operation of the border and its role in constructing the nation and the national community. Placing the immigrant at the center may tell us much about the complex terrain of U.S. race relations.

The Immigrant and the Inter/National Within the national sphere, the entry of the immigrant into a racialized state such as the United States offers an opportunity to examine the racial structures that undergird and constitute this nation-state. We might question official state apparatuses such as the census, which might be described as an official identity producer, and its role in (re)producing racialized sub-

Centering the Immigrant in the Inter/National Imagination | 29

jects. We might question legal doctrines such as equal protection and its role in producing racialized identities while simultaneously mandating “color-blindness” on the part of public actors.4 The point of the critique is not to abandon race but rather to examine its political economy—how race is utilized in distributing power and maintaining white privilege. Following Michael Omi and Howard Winant, I understand race to be the product of racial formation, “the sociohistorical process by which racial categories are created, inhabited, transformed, and destroyed” and as a “project[ ] in which human bodies and social structures are represented and organized” to maintain order and rule.5 Examination of the immigrant allows us to observe the dynamics of racial formation as immigrants enter the political/cultural/legal space of the United States and “become” differentially racialized as Asian American, black, Latina/Latino, and white. One feature of this differential racialization is evident in the different treatment accorded “white” immigrants when compared with those from Africa, Asia, the Caribbean, and Latin America. Fear of immigration, often discussed in generalized terms, is colored so that only certain immigrant bodies excite fear. In the midst of cries to limit legal immigration, the Immigration Act of 1990 included legislation to encourage immigration from northwestern European countries such as Ireland.6 In the midst of cries to limit illegal immigration, the figure of the Mexican border-crosser or of the Chinese boat person makes the evening news, whereas the fact that Italians constitute the largest group of undocumented immigrants in New York is obscured. After the Italians, the largest number of undocumented immigrants in New York come from Ecuador, Poland, Ireland, and Russia.7 These examples show how the “problem” of legal and illegal immigration is colored in the national imagination: fear over immigration is not articulated solely around foreignness per se; it includes a strong racial dimension. Sometimes, this racial dimension is rearticulated in cultural terms. Etienne Balibar, writing in the European context, describes the new racism, centered around the category of immigration, as a racism of the era of “decolonization,” of the reversal of population movements between the old colonies and the old metropolises, and the division of humanity within a single political space. . . . It is a racism whose dominant theme is not biological heredity but the insurmountability of cultural differences, a racism which, at first sight, does not postulate the superiority of certain groups or peoples in relation to others but “only” the harmfulness of abolishing frontiers, the incompatibility of life-styles and traditions; in short, it is what P. A. Taguieff has rightly called a differentialist racism.8

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This “differentialist racism” is precisely the basis of pluralism as articulated in the United States in the first quarter of this century. Compare Balibar’s words with those of Lothrop Stoddard, who wrote in the early part of this century: No theoretical questions of ‘superiority’ or ‘inferiority’ need be raised. . . . The really important point is that even though America (abstractly considered) may not be nearly as good as we think it is, nevertheless it is ours. . . . That is the meat of the matter, and when we discuss immigration we had better stop theorizing about superiors and inferiors and get down to the bedrock of difference.9

The dark side of pluralism entails that “the commitment to difference itself represents a theoretical intensification rather than diminution of racism, an intensification that has nothing to do with feelings of tolerance or intolerance toward other races and everything to do with the conceptual apparatus of pluralist racism.”10 In the context of immigration, this pluralist racism has a strong national dimension. In order to capture this interplay between race and nation, I use the term “nativistic racism,” where it is understood not just as an intersectional term, but where both nativism and racism are mutually constitutive of the other. While many commentators talk about racism or nativism, few talk about how the two operate together.11 History teaches us that nativist movements in the United States have never been indiscriminately directed against foreigners—they have been directed against those immigrants who can be racialized.12 For example, there were nativist movements directed against immigrants from southern and eastern Europe, immigrants who were ostensibly white. However, as John Higham demonstrates, nativism against those groups did not gain real currency until scientific racism provided a language that allowed for what he termed a “racial nativism.” Thus, they were represented as racially other to “white” Americans who originated from northwestern Europe.13 Race and nation are linked in such a way that even the racism directed against blacks contains a national dimension. Ironically, the granting of freedom and formal national membership to Blacks provided the predicate for a new form of racial nationalism, the ideology underwriting “[t]he identification of American with white (and the colonization or, failing that, segregation of blacks).”14 The demise of the master/slave relationship and the formal ban against racial discrimination necessitated new technologies of racism if white privilege were to be preserved. The Supreme Court provided

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this new technology in Plessy v. Ferguson, setting forth the “separate but equal” doctrine that marked a new development in racial thinking . . . [that] affirmed racial distinction as such; it affirmed, that is, racial distinction independent of any other legal consideration so that the relation between black and white was radically distinguished from the relation between master and slave. Slaves, in principle, could become free; blacks could never become white.15

Racial nationalism, or “the identification of American with white,” required that blacks never become American. The doctrine of “separate but equal” enabled the economic disempowerment, political disfranchisement, and physical terrorization of blacks, preserving the national community as white. Nativistic racism, or racial nationalism, has helped to construct Asian American, black, Latina/Latino, and white as simultaneously racial and national formations.16 By “national formation,” I mean the nominal form, paraphrasing Omi and Winant on racial formation, of the sociohistorical process by which national categories are created, inhabited, transformed, and destroyed, through which human bodies and social structures are organized and controlled.17 By linking “race” and “nation,” I hope to avoid universalizing “race,” recognizing the importance of temporal and spatial specificity. Keep in mind, though, that this is not a one-way process—as immigrants “become” Asian American, black, Latina/Latino, and white, these racial and national formations are themselves subject to reconfiguration. Stated more strongly, immigrants, in addition to introducing diversity, remind us of the diversity already present, that Asian American, black, Latina/Latino, and white communities are and have always been heterogeneous, hybrid, and multiple.18 While many scholars have commented on the tremendous diversity within the Asian American and Latina/Latino formulations, relatively little attention has been paid to the new immigration that is bringing an increased diversity to black communities.19 And despite the growing literature on whiteness as a racial phenomenon,20 insufficient attention has been paid to the diversity encompassed within whiteness. Examination of the immigrant, which requires us to take pluralism seriously, creates the space for an enriched discussion of what it means to be a nation. It forces us to remember that multiculturalism is not just about recognizing and respecting the presence of minority cultures against the backdrop of a dominant, white Euro-American culture; multiculturalism requires us

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to recognize and respect the heterogeneity within minority and majority communities. But make no mistake—acknowledging diversity in no way prevents identity politics; it merely requires us to rethink the way we do our politics. We cannot make assumptions about a person’s political orientation based on their racial identity. Instead, we must remember that diversity is the enabling condition for a politics of identity or, for that matter, for politics of any sort. The question then becomes what form the politics of identity will take. It might take the form of color-blind constitutionalism where racial difference is not permitted any political significance. The goal under this view is complete assimilation, which would bring about liberation from group-based oppression through the elimination of group-based difference.21 This position is typified in Justice Scalia’s pronouncement in Adarand v. Pena: To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.22

Under this conception, the only thing keeping us from the Promised Land are those who insist on the salience of racial differences. Such a position, however, fails to take into account the continuing material significance of race (and sex and national origin, among other things), despite the outlawing of formal discrimination.23 The United States remains a hierarchic society that has failed to live up to its democratic principles. We need an emancipatory politics that will move us toward what Ernesto Laclau and Chantal Mouffe describe as “a radical and plural democracy”: In the face of the project for the reconstruction of a hierarchic society, the alternative of the Left should consist of locating itself fully in the field of the democratic revolution and expanding the chain of equivalents between the different struggles against oppression. The task of the Left therefore cannot be to renounce liberal-democratic ideology, but on the contrary, to deepen and expand it in the direction of a radical and plural democracy.24

Instead of advocating sameness, the “concept of solidarity” may be invoked to establish a “chain of equivalents” between the different groups and their struggles against oppression.25 “People of color” in the United States might begin with the ideology of white supremacy, which permitted the genocide of Native Americans, the enslavement of Africans, the conquest and dispossession of Mexicans, and

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the exclusion of Asians. But white supremacy located within the confines of the nation-state tells only part of the story. There is, unfortunately, a rich history of colonialism and imperialism in its traditional and neo- forms. Once we escape the confines of a national imagination, it becomes easier to deepen the chain of democratic equivalents, linking the struggles of those who have been in the United States for generations with the struggles of those who have arrived more recently. In addition, an examination of white supremacy, colonialism, and imperialism and their relation to patriarchy may help us understand the linkages between race and gender that may be used to promote solidarity with women’s struggles; an examination of the nation-state’s relation to capital may promote solidarity with working-class struggles. Consideration of the international also allows for a critique of statism that questions the continuing viability of the nation-state and with it, current conceptions of citizenship. Current notions of citizenship appear to be tied to the archaic notion of sovereignty that one may have only one sovereign. But with technological advances in the fields of transportation and communication, immigrants are often able to participate actively in both the new country and the former homeland. Further, some countries permit multiple citizenship. With the increase in both formal and informal multiple citizenship, we see that the immigrant might truly be an inter/national actor. As the nation-state struggles with emerging transnational entities, the immigrant offers a site to critique traditional notions of citizenship. We may imagine new forms of citizenship that transcend the nation-state, but we would be naive to assume that they take emancipatory forms. We must remain vigilant against the inevitable rearticulations of racism, sexism, and heterosexism. A crucial site where racism, sexism, and heterosexism are being rearticulated is the border. With the end of the Cold War, immigrants and other outsiders have replaced the threat of communism in the national imagination of the United States. Nativistic racism polices the border in the new world/local order.

The Border and the Inter/National In the poem “Mending Wall,” Robert Frost wrote of two neighbors and their ritual in spring when each would “set the wall between [them] once again.”26 When the narrator questions the need for a wall in certain places,

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the neighbor replies as did his father, “Good fences make good neighbours.”27 He refuses to ask why, whereas the narrator is full of questions: “Before I built a wall I’d ask to know/What I was walling in or walling out,/And to whom I was likely to give offence.”28 Before the United States finishes building a wall between itself and Mexico, I would like to know what we are walling in and walling out. This preoccupation with the U.S.Mexico border is symptomatic of an unreflective nationalism that may have dire consequences for us as a nation. This unreflective nationalism and focus on borders was fueled by the end of the Cold War, which precipitated an identity crisis for the United States. Without its ideological Other, against which it had defined itself for decades, what role was the United States to take in the world? What was the new order to be? Iraq’s invasion of Kuwait provided a convenient point for unveiling the new world order, announced by President George Bush “[a]s bombs were raining on Baghdad, Basra, and miserable conscripts hiding in holes in the sands of southern Iraq.”29 The bombing of Iraq was consistent with the premises of this new world order: “unless international boundaries between sovereign nation states are respected, the alternative is chaos.”30 The end of the Cold War also allowed attention to turn inward. In the context of western Europe, Chantal Mouffe observes: Now that the enemy [communism] has been defeated, the meaning of democracy itself has become blurred and needs to be redefined by the creation of a new frontier. This is much more difficult for the moderate right and for the left than for the radical right. For the latter has already found its enemy. It is provided by the “enemy within,” the immigrants, which are presented by the different movements of the extreme right as a threat to the cultural identity and national sovereignty of the “true” Europeans.31

Thus, the possibility of chaos is not restricted to the international sphere. Chaos may come from within. For the United States, which is not at much risk of literal invasion by another nation-state, its cultural identity and national sovereignty may be perceived to be at greater risk of “invasion” by immigrants and would-be immigrants. This sense of invasion is captured in a statement by Ruth Coffey, the head of Stop Immigration Now: “I have no intention of being the subject of ‘conquest,’ peaceful or otherwise, by Latinos, Asians, blacks, Arabs or any other group of individuals who have claimed my country.”32 Although her statement might seem extreme, she is not alone in feeling overwhelmed. Many White Americans believe that the “invasion,” or com-

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ing majority of color, has already taken place. A recent poll reported in the New York Times reveals that the presence of racial minorities looms larger in the imagination of many White Americans than what really exists: Percentage of the United States population that white Americans think is Hispanic: 14.7 Percentage that is Hispanic: 9.5 Percentage that white Americans think is black: 23.8 Percentage that is black: 11.8 Percentage that white Americans think is Asian: 10.8 Percentage that is Asian: 3.1 Percentage that white Americans think is white: 49.9 Percentage that is white: 7433

This poll demonstrates that many white Americans think that the “conquest” is well under way. Anxiety engendered by these perceived demographic changes has led to a renewed policing of national and institutional boundaries. With the end of the Cold War, attention has turned inward in the United States, as it has in Western Europe. The result is that borders are closing and doors are shutting on people of color. Increasingly, in order for a justice claim to be heard, you must be able to assert membership in the national community. This is evidenced by recent political attacks on undocumented immigrants and by recent welfare reform measures that permit individual states to limit benefits to United States citizens.34 This creates a special problem for those who are perceived as foreign, because our “foreignness” weakens our claim to membership in the national community, and accordingly, our justice claims may be ignored. This attitude gives rise to the response, “If you don’t like it here, go back where you came from.” But many of us don’t have a place to go back to. For many, that place exists only as an “imaginary homeland.”35 This sense of in-betweenness, of being not quite part of the (imagined) national community and yet not belonging to an imaginary homeland, marks Asian Americans and helps demarcate the boundaries of the American national community and its national identity. Earlier in this chapter, I described nativistic racism as one facet of the oppression of Asian Americans. Naming it is crucial in helping us to recognize its operation and to combat its effects. Some of the effects of nativistic racism can be seen in the rise of the English-only movement and in such

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legislation as Proposition 187 in California, which would deny education, health care, and other social services to undocumented persons.36 In addition to a federal version embodied in the Personal Responsibility Act, Proposition 187 has spawned copycat legislation and initiatives in other states.37 These events bear a striking resemblance to what happened in the early 1900s with the Alien Land Laws, which prevented land ownership by those ineligible for citizenship. California, in 1913, was the first state to institute such a law. Other states soon followed suit.38 Although these laws targeted Asian immigrants as the only racial group ineligible for citizenship, they were written in race-neutral terms and thus survived constitutional challenge.39 Alien Land Laws gained new popularity with the advent of World War II: in 1943, Utah, Wyoming, and Arkansas instituted such laws. This legislation came shortly after the forced relocation of Japanese Americans to internment camps in these states. Like the earlier Alien Land Laws, they were instituted to discourage settlement of “ineligible aliens.”40 So those for whom the border is not so immediate, beware. If the history of the Alien Land Laws is any indication, we will begin seeing Proposition 187 clones in the heartland of America, even in such places as Kansas. For example, if a Korean national flies from Seoul and lands in Kansas, the border will be there to greet her. The border is everywhere. Although the border is everywhere, your perspective may render it invisible. It is through this invisibility that the border gains much of its power. A friend told me a story about a conversation at a party where a colleague was making fun of someone who thought that he would need a passport to visit Canada from the United States. When my friend informed the colleague that passports were often demanded of Asian Americans, the colleague was irritated that her funny anecdote was ruined. This story reminded me of an encounter I had with the border. Until then the border had been transparent to me. I thought about the U.S. border guard who stopped me when I tried to return after a brief visit to Canada. My valid Ohio driver’s license was not good enough to let me return to my country, even though the guard had just let in a white man with only a driver’s license. No passport was asked of him, yet the guard demanded mine. I told him that I did not have one and that it was my understanding that I did not need one, that a driver’s license was sufficient. We were at an impasse; my day, ruined. I asked him what was going to happen. He said he might have to detain me. I looked away. I imagined the phone call that I would have to make, the embarrassment I would feel as I told my law firm in Seattle that I would not be at work the next day, or maybe even

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the day after that—until I could prove that I belonged. I thought about my naturalization papers which were with my parents in Ohio. I thought about how I had felt when I had become a citizen. Before then, I had been an alien. Being a citizen meant that I belonged. Or so I thought. What I did not know then was that the properties of the border change depending on the contingent features of who or what is trying to get in or out. I might draw an analogy from cell biology, comparing the cell wall or membrane which is vital to the cell’s survival with the national border. Although there are obvious differences between a cell and a nation, the importance of the national border to the nation’s survival can be seen in the Supreme Court’s border jurisprudence. Congress must be able to exercise plenary power because a sovereign nation must exercise control over its borders—that’s what it means to be a sovereign entity. This relationship between a sovereign nation and its borders is made clear in the 1892 case of Nishimura Ekiu v. United States: It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.41

To hold otherwise would mean the end or death of the nation as a sovereign entity. The extremes to which the United States Supreme Court would go to safeguard this power are demonstrated in the earlier case of Chae Chan Ping v. United States. Chae Chan Ping was a laborer from China who had been in the United States since 1875. He returned to China for a visit in June 1887 and tried to return in October 1888. Before leaving, he had obtained a certificate which, under then-existing law, granted him permission to return. When he arrived in San Francisco on October 8, despite his certificate, he was denied entry. Congress, one week earlier, had passed an act that annulled the certificates. When Chae Chan Ping challenged the validity of the congressional act, the United States Supreme Court responded in simple fashion: “[if Congress] considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security . . . its determination is conclusive upon the judiciary.”42 The Court begins with the notion that the Chinese are “foreigners of a different race,” or racialized foreigners. These racialized foreigners “will not assimilate with us,” which is, of course, a direct insult to us/U.S. This refusal to assimilate makes them dangerous to our peace and security. They are the

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Yellow Peril, threatening our sense of nation and of the national. Congress must exclude them at the border, which operates like a cell membrane screening out danger, in order to preserve our nation. The (threatened) presence of the Chinese is presented as an issue of national security over which the Court in essence relinquished its responsibility to oversee the actions of Congress in matters regarding the border. Thus was born what came to be known as the plenary power doctrine. The Court went one step further in the citizenship cases, holding in essence that Asian immigrants could not become naturalized; they could not become full members of the national community even if they wanted to become citizens.43 Then World War II taught us the tragic lesson that even citizenship was not enough. The Nisei, second generation Japanese Americans and U.S. citizens by birth, were denied their place in the national community and were placed in internment camps. These restrictions were based on a sense of who belonged in the national community. These restrictions also solidified or helped to construct the country’s sense of the national community. They reinforced each other. The stronger the sense of the national community, the more natural the restrictions were, and vice versa. It is in part through the figure of Asian immigrants and their descendants as perpetual internal foreigners that the national community has been able to identify itself. Without Asian Americans, they (the “real” Americans) would not have known who they were.44 James Baldwin makes a similar point in the inverse: “If I’m not who you say I am, then you’re not who you think you are.”45 Today, new social movements comprising Asian Americans, African Americans, Latinos, Native Americans, women, and gays and lesbians are all resisting the dominant majoritarian constructions that have been imposed upon them. These subordinated, previously silenced groups are saying, “We’re not who you say we are,” thus destabilizing America’s national identity. The result: crisis.

National Identity Crisis and the Resultant Backlash Earlier, I stated that changes in demographics have created the specter of a coming majority of color. These changing demographics have created a national identity crisis that is evident in the debate over multiculturalism. Arthur Schlesinger, Jr., observes astutely that [a] struggle to redefine the national identity is taking place . . . in many arenas—in our politics, our voluntary organizations, our churches, our lan-

Centering the Immigrant in the Inter/National Imagination | 39 guage—and in no arena more crucial than our system of education. . . . The debate about the curriculum is a debate about what it means to be an American. What is ultimately at stake is the shape of the American future.46

While I agree that the shape of the American future is at stake, I part company with his conclusion that “[t]he American synthesis has an inevitable Anglo-Saxon coloration” which must be preserved through proper education if we are to avoid “disintegration of the national community, apartheid, Balkanization, tribalization.”47 An unstated subtext to Schlesinger’s fear of the disintegrating national community is taken up by Peter Brimelow, who locates the passage of the 1965 Immigration Act as the beginning of the end of “America.”48 While Schlesinger would instill the Anglo-Saxon tradition in all immigrants and minorities, Brimelow would stop the problem at the border. Both solutions, though, are motivated by a real sense of crisis. Within this broader national identity crisis, Asian Americans present a special problem. On the one hand, we are constructed as a model minority, and certain discourses try to incorporate Asian Americans into the American allegory of hard work and perseverance.49 Poor whites and other racial minorities are scolded for not being more like Asian Americans. On the other hand, our purported successes are turned upon us and we are told that there are “too many” of us. We don’t quite fit the mold of the American success story because we remain, on the surface, un-American. A real tension exists because Asian Americans are, to an extent, incorporated into the narrative of the American dream; yet our successes threaten the collapse of that dream for “real” Americans. At present, this tension is mediated through the nativistic racism that regulates the lives of Asian Americans, keeping us from transgressing too far. Let me return to my story about the U.S. border guard. When the white man presented his state driver’s license, he was immediately recognized as belonging to the national community. When I presented my state driver’s license, it was not enough to overcome the foreignness inscribed on my body. I required further investigation. As such, my place (and that of others who look like me) in the national community is less certain. This has repercussions beyond the geopolitical border, because the border is imperfect. It does not operate perfectly in excluding that which does not belong. Some people slip through, managing to escape detection. Mistakes are made. As a result, the geopolitical border is supplemented by internal policing mechanisms, formal and informal. Sometimes, the foreign element has to be isolated so that it can be monitored, controlled. The early Chinatowns, which were used to demonstrate

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the unwillingness of the Chinese to assimilate, were often the result of residential segregation. At other times, the foreign element has to be driven out, expelled for the good of society. In either scenario, however, the foreign is seen as a threat, dangerous to peace and security. Anxiety over this threat becomes exacerbated during times of economic uncertainty. Efforts are made then to further restrict membership in the national community. Measures such as Proposition 187 are directed against illegal immigrants, who are said to be the problem. They take jobs away from those who belong here. They use public services so that there is less for everyone else. Blaming illegal immigrants slides quickly into blaming all immigrants. Welfare reform measures have been passed that allow states to cut off aid even to legal immigrants.50 Although these measures focus on immigration status, problems arise because that status is not evident on an individual’s face. Foreignness then becomes a proxy for questionable immigration status. Foreignness triggers further scrutiny. This presents a special problem for Asian Americans. Because of the way the national community is constructed, Asian Americans are discursively produced as foreign. Foreignness is inscribed upon our bodies in such a way that Asian Americans carry a figurative border with us. This border, besides confirming the belonging-ness of the “real” Americans, marks Asian Americans as targets of nativistic racism. It renders us suspect, subject to the violence of heightened scrutiny at the border, in the workplace, in hospitals, and elsewhere. There is also the intrusion of physical violence. Nativistic racism directed against those of Asian descent in America has historically expressed itself in violent attacks. The killing of Vincent Chin by two white autoworkers in Detroit, discussed in chapter 1, is one variation on this theme. Another is the killing of Navroze Mody, an Asian Indian who was beaten to death in 1987 in Jersey City by a gang of eleven youths, who did not harm Mody’s white friend. No murder or bias charges were brought; three of the assailants were convicted of assault while one was convicted of aggravated assault.51 To understand the significance of this attack, it must be placed in context. Many Asian Indians, the fastest-growing immigrant group in New Jersey, settled in Jersey City. Racially motivated hostilities increased with the growth of the Asian Indian community and the transformation of Jersey City as Asian Indians opened shops and restaurants. Earlier in the month during which Navroze Mody was killed, a Jersey City gang called the Dotbusters (a reference to the bindi, the dot that Indian women often wear as a sign of marital fidelity) had published a letter in the Jersey Journal saying

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that they “would ‘go to any extreme’ to drive Indians from Jersey City.”52 Violence against the Indian community began the next day. These recent events read in some ways like a page from the book of history. They resemble other racially motivated incidents of the past, such as an incident in 1877 in Chico, California. While attempting to burn down all of Chico’s Chinatown, white arsonists murdered four Chinese by tying them up, dousing them with kerosene, and setting them on fire. The arsonists were members of a labor union associated with the Order of Caucasians, a white supremacist organization that was active throughout California. They blamed the Chinese for the economic woes suffered by all workers.53 The Chinese Massacre of 1885 also took place in the context of a struggling economy and a growing nativist movement. In Rock Springs, Wyoming, a mob of white miners, angered by the Chinese miners’ refusal to join their strike (it should be remembered that unions did not permit Chinese members), killed twenty-eight Chinese laborers, wounded fifteen, and chased several hundred out of town. A grand jury failed to indict a single person.54 I tell these stories not to point out failures of justice but to show how violence operates to regulate boundaries. This violence is spurred on by certain narratives of America which permit the pathological impulse toward nativistic racism. This violence is not confined to the geopolitical periphery. It may explode anywhere a border exists (and remember that the border is everywhere). This has serious consequences for those who carry a figurative border on their bodies. Asian Americans, as perpetual internal foreigners, are made available for “real” Americans who need to reassure themselves that the national community begins and ends with themselves, ensuring, at least momentarily, a stable notion of the national community and the fiction of a homogeneous American identity. This is a shabby foundation on which to build any nation. In order to build our nation along more egalitarian lines, we must disable this regressive construction of borders that enables the pathology of nativistic racism. In doing so, we must approach this work with “a critical awareness of how borders have been (and continue to be) systematically policed and for whose ideological benefit and material profit.”55 Last year, the Immigration and Naturalization Service (INS) conducted a sweep through six Southern states to round up and deport undocumented workers. They called it Operation SouthPAW, “PAW” standing for “Protecting America’s Workers.” The sweeps took place largely before and after the harvest. The operation was celebrated by the INS and the mainstream media as hugely

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successful in protecting America’s workers (and thus America) from encroachment by “unauthorized” workers.56 There is no question that Operation SouthPAW worked to police our borders, but who gains ideologically and materially from this policing action? The material profit here is not limited to farmers and agribusiness—all “Americans” benefit from these raids and are thus complicitous in keeping food prices low. Centering the immigrant provides one way of exposing the deeper ideological and material motivations behind certain border policing actions. The project of rescinding borders includes upsetting the boundaries that privilege any simple binary, whether it be the black/white racial paradigm, male/female, straight/queer. At times, this will be met with resistance. The challenge then is to articulate a set of political commitments around which subordinated peoples and persons of goodwill can organize. Perhaps the idea of a radical and plural democracy can motivate us. Chantal Mouffe identifies the objective of a radical and plural democracy as none other than the goal Tocqueville perceived as that of democratic peoples, that ultimate point where freedom and equality meet and fuse, where people “will be perfectly free because they are entirely equal, and where they will all be perfectly equal because they are entirely free.”57

For too long, we have been satisfied with formal equality which gives short shrift to freedom. We must not accept this impoverished form of equality. Instead, we must work toward a fusion of freedom and equality by upsetting boundaries here and there, taking down some of the walls that contain us.

Bridge Introduction to Part II

Asian Americans suffer from discrimination. Much of this discrimination is quantitatively and qualitatively different from that suffered by other disempowered groups. The qualitative difference—that Asian Americans suffer as Asian Americans and not just generically as persons of color—has certain implications for the study of Asian Americans and the law. I realize that this may raise the (obligatory) essentialist question. I do not make the claim that there is a unitary, essential Asian American experience. Such a claim would be foolhardy given the diversity encompassed in the category “Asian American” and in its intersection with gender, class, sexual orientation, and disability. However, acknowledging the limitations behind the category “Asian American” does not render the term “Asian American” meaningless. One may still talk about “Asian Americans” despite the heterogeneity, hybridity, and multiciplicity contained within the term and the bodies that constitute it and that it constitutes.1 Further, “Asian American” can be used as a “strategic identity.”2 Even though the category “Asian American” can (and perhaps should) be subverted, one can, as has been argued in the context of gay and lesbian rights, still “tak[e] advantage of a civil rights heritage that is grounded on identity politics,” despite the “desire to deconstruct the imprisoning category itself.”3 However, care must be taken when engaging in traditional civil rights work, which has a tendency to emphasize color-blindness and to deny substantial difference. To deny difference may erase Asian American identities and may be inadequate to address fully the needs of Asian Americans. Instead of traditional civil rights work, we might turn to critical race theory, a legal movement that began in the late 1980s as a racial intervention in critical legal studies and as a leftist intervention in liberal race discourse.4 Richard Delgado describes critical race scholarship as having the following themes:

45

46 | Bridge: Introduction to Part II (1) an insistence on “naming our own reality”; (2) the belief that knowledge and ideas are powerful; (3) a readiness to question basic premises of moderate/incremental civil rights law; (4) the borrowing of insights from social science on race and racism; (5) critical examination of the myths and stories powerful groups use to justify racial subordination; (6) a more contextualized treatment of doctrine; (7) criticism of liberal legalisms; and (8) an interest in structural determinism—the ways in which legal tools and thought-structures can impede law reform.5

John Calmore describes critical race theory in the following manner: [C]ritical race theory can be identified as such not because a random sample of people of color are voicing a position, but rather because certain people of color have deliberately chosen race-conscious orientations and objectives to resolve conflicts of interpretation in acting on the commitment to social justice and antisubordination.6

One problem, though, with critical race theory is that while it has made the powerful claim that race matters, it has yet to show how different races matter differently. In part II, I attempt to correct this lapse by developing a critical legal studies focused on Asian Americans. In making this distinction between traditional civil rights work, which seeks to minimize differences, and a critical Asian American legal studies with its (partial) claim of distinctiveness, it might seem that I am setting up what Anthony Appiah calls “the classic dialectic of reaction to prejudice”: The thesis in this dialectic . . . is the denial of difference. Du Bois’ antithesis is the acceptance of difference, along with a claim that each group has its part to play; that the white race and its racial Other are related not as superior to inferior but as complementaries; that the Negro message is, with the white one, part of the message of humankind. I call this pattern the classic dialectic for a simple reason: we find it in feminism also—on the one hand, a simple claim to equality, a denial of substantial difference; on the other, a claim to a special message, revaluing the feminine Other not as the helpmeet of sexism, but as the New Woman.7

However, a critical Asian American legal studies, in making its claim of distinctiveness, is not simply the antithesis to Asian American civil rights work. It is not a matter of either sameness or difference, but of both/and. Critical Asian American legal studies will provide a framework that will encompass and mediate between the notions of liberalism underlying civil rights work and the critical perspectives contained within critical race theory. I have several goals in mind:

Bridge: Introduction to Part II | 47

• A critical Asian American legal studies will recognize that Asian Americans are differently situated historically with respect to other disempowered groups. A study of race relations in the United States cannot focus solely on the relationship between the dominant white majority and each subordinate minority group. It must also focus on interethnic and interracial relations. This expansion of the study of “MajorityMinority Relations” to include “Minority-Minority Relations” represents a necessary shift in the current paradigm of racial dynamics in the United States.8 • Despite the historical differences in the treatment of different minority groups, the commonality found in shared oppression can bring different disempowered groups together to participate in each others’ struggles. • The exclusion of Asian Americans from the political and legal processes has led to an impoverished notion of politics and law that furthers the oppression of Asian Americans. A critical Asian American legal studies will offer the inclusion of Asian American voices in the form of narrative, personal and otherwise, in the practice of legal scholarship as a powerful method to combat the effects of exclusion.9 • Finally, by including narratives in law review articles, briefs, and law teaching, this legal scholarship will more effectively persuade decision-makers, practitioners, law professors, and students. First I examine the current discourse on race and the law, finding it to be circumscribed insofar as the perspectives of Asian Americans have been excluded from the conversation in traditional civil rights work and critical race scholarship. A natural solution to this problem is to include the narratives of the excluded. Next, I address two corollary questions: why narrative should count and how narrative counts. This discussion takes place in the context of the sometimes acerbic debate taking place in legal discourse about the use of narrative. I set forth an epistemological framework to support the use of narrative that also serves as a theoretical framework for a critical Asian American legal studies. I then set forth a narrative account of Asian America, showing how narrative has been used effectively to address some of the problems facing Asian Americans. Finally, I consider the implications of a postmodern epistemological stance for Asian American identity and its goal of redressing oppression.

3 Why We Need a Critical Asian American Legal Studies

Present-day attitudes about minorities often demonstrate a lack of understanding about the history and current status of Asian Americans. For example, during the spring of 1991, a national poll conducted by the Wall Street Journal and NBC News “revealed that the majority of American voters believe that Asian Americans are not discriminated against in the United States” and that “[s]ome even believe that Asian Americans receive ‘too many special advantages.’”1 The United States Commission on Civil Rights called this a misconception in 1992 and compiled evidence confirming that Asian Americans face widespread prejudice, discrimination, and barriers to equal opportunity. A first step then is to counter the misperception that Asian Americans occupy a privileged position in U.S. society. Because a comprehensive overview of Asian American history is beyond the scope of this book, I will discuss two major issues here: nativistic violence and discrimination against Asian Americans, and the “model minority” myth.2 In chapter 5 I will return to these and other issues and events that have profoundly shaped Asian American history and our current status. While all disempowered groups have suffered from exclusion and marginalization, Asian Americans have been subjected to unique forms. Traditional civil rights advocates and critical race scholars have failed to account sufficiently for these differences. A critical Asian American legal studies is needed to change the current racial paradigm, which is inadequate to support a more complete discourse on race and the law.

That Was Then, This Is Now: Variations on a Theme Part of the problem is that many people remain unaware of the violence and discrimination that have plagued Asian Americans since their arrival in this

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country. Much of this ignorance can be attributed to school textbooks that fail to include Asian Americans in the history of this nation.3 Moreover, those who know the history often fail to make the connection between this history and the ongoing problems that continue to affect Asian Americans today. I attribute this lack of awareness in part to history textbooks that “routinely omit the word ‘because.’ . . . Students must guess whether facts strung together are causally related. Texts present a ‘crabgrass’ or ‘natural disaster’ theory of history; problems unaccountably grow until they become serious, at which time they keep on going until they stop.”4 If things are going to improve, we should remember what the philosopher George Santayana said, that “[p]rogress, far from consisting in change, depends on retentiveness.”5 When I look at certain recent events, such as the rise in the incidence of hate crimes directed toward Asian Americans, or the rhetoric of the official English movement and of politicians such as Patrick Buchanan, or even the uproar caused by the sale of the Rockefeller Center and the Seattle Mariners to Japanese investors, I question how much progress we have made. When I look at those events, I see that we have not retained in our cultural memory the history of discrimination against Asian Americans, and we are left to replay variations on the tired theme of anti-Asian violence. Violence against Asian Americans Anti-Asian sentiment has historically expressed itself in violent attacks against Asian Americans. The 1982 killing of Vincent Chin in Detroit by two white autoworkers, described in greater detail in chapter 1, is one variation on this theme. Vincent Chin, a Chinese American, was punished by two white men for being of Asian ancestry and for paying attention to a white woman. People like him were displacing “real” Americans like them from their jobs; people like him were displacing “real” Americans like them from their rightful place with their women. This threat to their white masculinity and to their sense of economic and sexual entitlement drove them to hunt Vincent for twenty to thirty minutes, to sneak up on him and grab him, and to beat him to death with a baseball bat. The physical violence was then compounded by the light sentences—a fine of $3,780, probation for three years, and no jail time—given to the two attackers who, according to the judge, had simply been administering a punishment that got out of hand.6 I relate this story not to point out a miscarriage of justice, but to begin developing the thesis that the killing of Vincent Chin is not an isolated

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episode. Such violence stems from, and is causally related to, anti-Asian feelings that arise during times of economic hardship and the resurgence of nativism, the “intense opposition to an internal minority on the grounds of its foreign (i.e., ‘un-American’) connections.”7 Another variation on the theme of anti-Asian sentiment is the killing of the Asian Indian Navroze Mody, already described in chapter 2. Earlier in the month that Navroze Mody was killed, a Jersey City gang had declared it “would ‘go to any extreme’ to drive Indians from Jersey City.”8 The violence began the next day, with an attack on an Asian Indian in his home after his name had been picked out of a phone book by the assailants. One community leader declared that “the violence worked. . . . People moved out, and others thinking of moving here from the city moved elsewhere.”9 These recent events read in some ways like a page from the book of history and resemble racially motivated incidents of the past. In the late 1800s, the white supremacist organization Order of Caucasians in California blamed the Chinese for the economic woes suffered by all workers. Their tactics included threatening letters such as the following sent to people who employed Chinese laborers: Dear Sir: You are respectfully requested without further warning to discharge the Chinamen in your employ, and give your work to whites instead, whom you well know are suffering from the effects of all those heathens in our midst. Think well of the country of your adoption, and try to assist the poor white man in making an honest living. Take heed lest the course you are now pursuing shall fall upon your own head with tenfold vengeance. [Signed]— Native Americans.10

Even though many members of the Order of Caucasians were in fact immigrants from Europe, their white skins granted them functional membership as “native” Americans. In another incident, in 1877 in Chico, California, members of a labor union associated with the Order of Caucasians murdered four Chinese workers by tying them up, dousing them with kerosene, and setting them on fire while attempting to burn down the city’s Chinatown. The attackers were convicted but were released long before the end of their sentences. The Chinese Massacre of 1885 also took place in the context of a struggling economy and a growing nativist movement. In Rock Springs, Wyoming, a mob of white miners, angered by the Chinese miners’ refusal to join their strike, killed twenty-eight Chinese laborers, wounded fifteen, and chased several hundred out of town. As already mentioned in chapter 2, the

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Chinese miners were not permitted to join the white miners’ union. In this incident, like many others, a grand jury failed to indict a single person.11 My informal count, based on a very limited survey of the literature, came up with over three hundred Chinese killed in racially motivated assaults in the West between 1860 and 1887.12 Much of the violence was not documented, so we will never know the true extent of violence directed against Chinese workers. Furthermore, school textbooks and historians have failed to acknowledge the gravity of this problem. For example, a recent work by Richard Brown entitled “Historiography of Violence in the American West” limits the discussion of anti-Chinese violence to two paragraphs.13 Such lack of coverage is odd because no group except for the American Indians encountered as much violence on the Western frontier as did the Chinese.14 I could go on, but my point is not merely to relate the facts. I seek to link the present with the past. In linking these late-nineteenth-century events with present events, I may seem to be drawing improper associations by taking the events out of context. In fact, I am doing the reverse. I am placing present events into context to show that today’s rising incidence of hate crimes against Asian Americans, like the violence of the past, is fostered by a climate of anti-Asian sentiment spurred by economic troubles and nativism. As Stanley Fish stated in a different context, “I am arguing for a match at every level, from the smallest detail to the deepest assumptions. It is not simply that the books written today bear some similarities to the books that warned earlier generations of the ethnic menace: they are the same books.”15 Fish was discussing books, but there is sometimes an unfortunate link between words and deeds. Nativistic Racism The words accompanying the violent deeds of the present also grow out of the resurgence of nativism. This resurgence is apparent in some of the arguments marshaled against multiculturalism. Stanley Fish presents a cogent summary of one of the leading critics of multiculturalism, Arthur M. Schlesinger, Jr.: [Schlesinger] finds the threat in what he calls the “ethnic upsurge,” an “unprecedented . . . protest against the Anglocentric culture” that “today threatens to become a counterrevolution against the original theory of America as . . . a common culture, a single nation.” Schlesinger deplores the rejection of what he calls “the old American ideal of assimilation”—the ideal that asks

52 | Why We Need a Critical Asian American Legal Studies immigrants and minorities to “shed their ethnicity” in favor of the Western Anglo-Saxon tradition. . . . “White guilt,” he declares, “can be pushed too far,” and he predicts that the multiculturalist ethnic upsurge will be defeated by the fact that “the American synthesis has an inevitable Anglo-Saxon coloration.”16

As Fish correctly surmises, “It is clear from these quotations that for Schlesinger the danger of multiculturalism is not confined to the classroom, but extends to the very fabric of our society.”17 Some politicians have used the rhetoric of nativism to great effect, gaining support among segments of the population. An obvious example is Patrick Buchanan, who said, “Who speaks for the Euro-Americans who founded the United States? . . . Is it not time to take America back?”18 Nativism, with its message of America first, has a certain allure. Indeed, to reject its message seems unpatriotic. However, present-day nativism is grounded in racism and should be termed nativistic racism, which differs from the traditional paradigm of racism by including the element of “foreign.”19 Nativistic racism lurks behind the specter of “the Japanese ‘taking over,’” which appeared when Mitsubishi Corporation bought a 51 percent share of the Rockefeller Center and when Nintendo purchased “a piece of America’s national pastime,” the Seattle Mariners, an American League baseball team. These sentiments were not just the views of those on the fringe. When the sale of the Mariners baseball team was being contemplated, surveys revealed that a majority of Americans “disapproved of Japanese ownership in the national pastime.”20 The first problem with the notion of “the Japanese taking over” is that “Japan” did not buy Rockefeller Center; nor did “Japan” buy a piece of America’s national pastime. In both instances, private corporations made the investments. The second problem is the different treatment of Japanese investors as compared to those from other Western nations. Why is there is an outcry when Japanese investors buy institutions such as the Rockefeller Center or Columbia Pictures, but not when Westerners buy similar institutions? Moreover, the notion of the Japanese “taking over” is factually unsupported. As of January 1992, in the midst of the clamor about the Japanese buying out America, Japanese investors owned less than 2 percent of U.S. commercial property. We might compare this with the level of British investments, which far exceeds that of the Japanese investors.21 Similarly, in 1910, three years before California passed its first Alien Land Law—which targeted aliens who were ineligible for citizenship and

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prevented them from owning real property—Japanese Americans controlled just 2.1 percent of California’s farms.22 Nevertheless, Japanese Americans were perceived to be a threat of such magnitude that a law was passed “to discourage further immigration of Japanese aliens to California and to call to the attention of Congress and the rest of the country the desire of California that the ‘Japanese menace’ be crushed.”23 Through lobbying efforts by various chambers of commerce, boards of trade, merchants associations, and foreign oil and copper syndicates, the law was designed to be of limited applicability instead of one affecting all aliens. It did so by targeting Asian immigrants, particularly the Japanese, as aliens ineligible for citizenship. The naturalization statute in effect in 1913 restricted naturalization to free white persons and persons of African nativity or descent. Although the U.S. Supreme Court had yet to decide the issue of naturalization for Asian immigrants, these immigrants were apparently excluded from naturalization. By limiting the application of the Alien Land Law to aliens ineligible for citizenship, European interests were protected.24 These examples show that little has changed over the past hundred years in the way persons of Asian ancestry are seen as perpetual foreigners whose racialized bodies constitute a threat to the American way of life. It is this sense of “foreignness” that distinguishes the particular type of racism directed at Asian Americans. Understanding the way nativistic racism operates is one of the insights offered by a critical legal studies centered on Asian Americans. Bringing this to light is important because nativistic racism must first be represented and named before it can be combated.

The Model Minority Myth One barrier to bringing nativistic racism to light is that the history of discrimination and violence and the contemporary problems of Asian Americans are obscured by the portrayal of Asian Americans as a “model minority.” Asian Americans are portrayed as “hardworking, intelligent, and successful.”25 This description represents a sharp break from past stereotypes of Asians as “sneaky, obsequious, or inscrutable.”26 But the dominant culture’s belief in the “model minority” allows it to justify ignoring the unique discrimination faced by Asian Americans. The portrayal of Asian Americans as successful permits the general public, government officials, and the judiciary to ignore or marginalize the contemporary needs of Asian Americans.

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The phrase “model minority” was coined by William Petersen, a demographer-sociologist at the University of California, Berkeley. In a New York Times Magazine article in early 1966, Petersen used the term “model” in two senses: first, as a way of praising the superior performance of Japanese Americans; and second, as a way of suggesting that other ethnic groups should emulate the Japanese American example. The unstated major premise of Petersen’s argument was that Horatio-Alger-bootstrap-raising was needed for success by such “non-achieving” minorities as blacks and Chicanos, rather than the social programs of Lyndon Johnson’s “Great Society.”27

Later that year, an article in U.S. News & World Report followed up on the same theme, focusing this time on Chinese Americans: At a time when Americans are awash in worry over the plight of racial minorities— One such minority, the nation’s 300,000 Chinese-Americans, is winning wealth and respect by dint of its own hard work. In any Chinatown from San Francisco to New York, you discover youngsters at grips with their studies. . . . Still being taught in Chinatown is the old idea that people should depend on their own efforts—not a welfare check—in order to reach America’s “promised land.” Visit “Chinatown U.S.A.” and you find an important racial minority pulling itself up from hardship and discrimination to become a model of selfrespect and achievement in today’s America.28

Again, the lesson is that there is something to be learned from the self-reliance of Chinese Americans who work hard instead of relying on welfare. This “model minority” theme has become a largely unquestioned assumption about current social reality. The early articulations have been reinforced by a spate of media stories in the mid-1980s: In 1986, NBC Nightly News and the McNeil/Lehrer Report aired special news segments on Asian Americans and their success, and a year later, CBS’s 60 Minutes presented a glowing report on their stunning achievements in the academy. “Why are Asian Americans doing so exceptionally well in school?” Mike Wallace asked, and quickly added, “They must be doing something right. Let’s bottle it.” Meanwhile, U.S. News & World Report featured AsianAmerican advances in a cover story, and Time devoted an entire section on this meteoric minority in its special immigrants issue, “The Changing Face of America.” Not to be outdone by its competitors, Newsweek titled the cover

Why We Need a Critical Asian American Legal Studies | 55 story of its college-campus magazine “Asian-Americans: The Drive to Excel” and a lead article of its weekly edition “Asian Americans: A ‘Model Minority.’” Fortune went even further, applauding them as “America’s Super Minority,” and the New Republic extolled “The Triumph of Asian Americans” as “America’s greatest success story.”29

At its surface, the label “model minority” seems like a compliment. However, once one moves beyond this complimentary facade, one can see the label for what it is—a tool of oppression which works a dual harm by (1) denying the existence of present-day discrimination against Asian Americans and the present-day effects of past discrimination, and (2) legitimizing the oppression of other racial minorities and poor whites. The notion that Asian Americans are a “model minority” is a myth. But the myth has gained a substantial following, both inside and outside Asian American communities. The successful inculcation of the model minority myth has created an audience unsympathetic to the problems of Asian Americans. Thus, when we try to make our problems known, our complaints of discrimination or calls for remedial action are seen as unwarranted and inappropriate and may spark resentment. For example, Professor Mitsuye Yamada tells a story about the angry reactions of her Ethnic American Literature class to an anthology compiled by some outspoken Asian American writers. Her students were not offended by the militancy expressed by black American, Chicano, or Native American writings because they “understood” the anger expressed by the Blacks and Chicanos and they “empathized” with the frustrations and sorrow expressed by the Native American. But the Asian Americans?? [sic] Then finally, one student said it for all of them: “It made me angry. Their anger made me angry, because I didn’t even know the Asian Americans felt oppressed. I didn’t expect their anger.”30

This story illustrates the danger of the model minority myth, which renders the oppression of Asian Americans invisible. This invisibility has harmful consequences, especially when those in positions of power cannot see the problems. Programs designed to help Asian Americans learn English and to find jobs have been denied funding by policymakers and government officials who believed that Asian Americans had succeeded and needed no aid. College administrators, believing the same, have sometimes excluded poor Asian American students from Educational Opportunity Programs even though all students from low-income families are eligible for these programs.31

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In this way, the model minority myth diverts much-needed attention from the problems of many segments of the Asian American community, particularly the Laotians, Hmong, Cambodians, and Vietnamese, who have poverty rates of 34.7 percent, 63.6 percent, 42.6 percent, and 25.7 percent, respectively. These poverty rates compare with a national poverty rate of 13 percent.32 This distorted view of the current status of Asian Americans has infected not only government officials but at least one very influential member of the judiciary and legal academy. In a recent speech, Judge Richard Posner posed two questions: “Are Asians an oppressed group in the United States today? Are they worse off for lacking sizable representation on the faculties of American law schools?”33 His questions were rhetorical because he already had answers, with figures to back them up: “In 1980, Japanese-Americans had incomes more than 32% above the national average income, and Chinese-Americans had incomes more than 12% above the national average; Anglo-Saxons and Irish exceeded the average by 5% and 2%, respectively.”34 He also pointed out that “in 1980, 17.8% of the white population aged 25 and over had completed four or more years of college, compared to 32.9% of the Asian-American population”35 Unspoken but assumed in Judge Posner’s comments is the meritocratic thesis “that, when compared to Whites, there are equal payoffs for qualified and educated racial minorities; education and other social factors, but not race, determine earnings.”36 If Posner is right, Asian Americans should make as much as their white counterparts, taking into account “education and other social factors, but not race.” Yet when we look more carefully at the numbers, we find at least three anomalies that disprove the meritocratic thesis. First, Posner’s reliance on median family income as evidence for lack of discrimination in employment is misleading. It does not take into account the fact that Asian American families have more workers per household than do white families. For example, in 1980 in California, which has one of the highest concentrations of Asian Americans, white familes had 1.6 workers per family, whereas Japanese families had 2.1 workers, immigrant Chinese families had 2.0, immigrant Filipino families had 2.2, and immigrant Korean families had 1.8, although this last figure is artificially low because it does not reflect the fact that many Korean women are unpaid family workers.37 One reason for the higher number of workers in Asian American families is that more Asian American women work because of the low wages earned by male family members.38

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Second, the use of national income averages is misleading because most Asian Americans live in geographic locations that have both higher incomes and higher costs of living. In 1980, 59 percent of all Asian Americans lived in three states—California, Hawaii, and New York—each of which has higher median incomes and higher costs of living than the national averages. Only 19 percent of the general population resides in these three states.39 Further, many Asian Americans are concentrated in high-income and high-cost-of-living metropolitan areas such as Honolulu, San Francisco, Los Angeles, Chicago, and New York.40 When geographic location is considered, wage disparities become apparent. Third, the fact that Asian Americans have a higher percentage of college graduates does not mean that they have economic opportunities commensurate to their level of education. Returns on education rather than educational level provide a better indicator of the existence of discrimination. Many Asian Americans have discovered that they, like other racial minorities, do not get the same return for their educational investment as do their white counterparts.41 Posner’s meritocratic thesis therefore does not hold when these factors are taken into consideration. Japanese Americans present the strongest case for Posner because of their high household income and high educational attainment. Yet, a closer look taking into account individual income, geographic location, educational attainment, and hours worked reveals the flaws in his analysis. I use 1980 figures as Posner did, and I control for geography by considering statistics for California. In 1980, Japanese American men in California earned incomes comparable to those of white men, but “they did so only by acquiring more education (17.7 years compared to 16.8 years for white men twenty-five to forty-four years old) and by working more hours (2,160 hours compared to 2,120 hours for white men in the same age category).”42 The income disparities for men from other Asian American groups are more glaring. In California, Korean men earned only $19,200, or 82 percent of the income of white men; Chinese men only $15,900, or 68 percent; and Filipino men only $14,500, or 62 percent.43 I use figures for men because calculations are more complex when both race and gender are considered. Granted, complexity is not a good reason for avoiding this important issue, but I will defer its discussion to another place because it is buttressed by contradictory comparisons of women’s income based on race.44 The answer, then, to Posner’s question whether Asian Americans are an oppressed group in America is a resounding “Yes.” Some Asian American

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groups are better off than other racial minorities, but to point out their “successes” in order to obscure ongoing racism and to hold them up as the poster children for achieving the American Dream is offensive. To accept the myth of the model minority is to participate in the oppression of Asian Americans. In addition to hurting Asian Americans, this myth works a dual harm by hurting other racial minorities and poor whites who are blamed for not being successful like Asian Americans. This blame is justified by the meritocratic thesis supposedly proven by the example of Asian Americans. This blame is then used to campaign against government social services for “undeserving” minorities and poor whites and against affirmative action. To the extent that Asian Americans accept the model minority myth, we are complicit in the oppression of other racial minorities and poor whites. This blame and its consequences create resentment against Asian Americans among African Americans, Latinos, and poor whites. This resentment, fueled by poor economic conditions, can flare into anger and violence. Asian Americans, the “model minority,” serve as convenient scapegoats, as Korean Americans in Los Angeles discovered during the 1992 civil disturbance when almost half of the looting and violence was directed at Korean American businesses.45 According to Los Angeles attorney Angela Oh, many Korean Americans “now view themselves as ‘human shields’ in a complicated racial hierarchy,” caught between “the racism of the white majority and the anger of the black minority.”46 The model minority myth plays a key role in establishing a racial hierarchy that denies the oppression of Asian Americans while simultaneously legitimizing the oppression of other racial minorities and poor whites.

The Inadequacy of the Current Racial Paradigm Most discussions of race and the law focus on African Americans and exclude other racial minorities. To limit the discussion in this way is a mistake. Analogies may be drawn between the discrimination experienced by different disempowered groups, but care must be taken to avoid confusing one form of discrimination with another.47 The dominant group has used various methods of discrimination, legal and extralegal, against different disempowered groups. The differences between these groups must be considered in a discourse on race and the law if we are to use law as a means to help end racial oppression. Both traditional civil rights work and critical race theory have failed to account sufficiently for these differences.

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Traditional Civil Rights Work Traditional civil rights work presents two problems for Asian Americans. The first is a matter of coverage; the second, a matter of theory. By coverage, I mean that civil rights advocates sometimes forget to consider Asian Americans when they are battling discrimination. For example, when civil rights advocates have sued to correct underrepresentation of minorities on police forces, Asian Americans have often not been included in the lawsuits. The U.S. Commission on Civil Rights in 1992 reported that representation of Asian Americans was not included in a court order that required the Los Angeles Police Department to increase its representation of women, African Americans, and Hispanics.48 Asian Americans are afraid, though, to sue to be included in the existing consent decree because they fear that the entire decree, which benefits other minorities and women, could be jeopardized based on a 1989 Supreme Court decision.49 Because Asian Americans were not considered when the hiring practices of many municipalities were being challenged, and because of the problems inherent in suing later for inclusion, Asian Americans have rarely benefited from corrective measures following lawsuits. Coverage, although problematic, is not fatal. It can be corrected if civil rights advocates consider the needs of Asian Americans. The theoretical difficulties may present a greater problem. First, traditional civil rights work, with its foundation in liberal political philosophy, is based on conceptions of individual rights.50 These rights are premised on the notion of an individuated autonomous self.51 However, this individuated autonomous self may not reflect the reality of all Asian Americans and the cultures from which they come. Many Asian philosophies and cultures have at their center the concept of no-self.52 And at least one Asian language does not have a word for “I” that corresponds to “I” in English.53 Thus, for some Asian Americans, traditional civil rights work may be at odds with their self-conception and worldview. Furthermore, traditional civil rights work has often resulted in court opinions that advocate color-blind constitutionalism, which provides only incremental improvement while legitimizing white racial domination.54 This form of color-blind constitutionalism does not allow for adequate consideration of difference. Thus, traditional civil rights work, while providing some important benefits, will ultimately be unable to meet the needs of Asian Americans because of its unequal coverage and theoretical problems.

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Critical Race Scholarship Critical race scholarship presents a problem only of coverage for Asian Americans. Critical race scholars understand that differences between racial minorities are important.55 However, these differences have yet to be fully developed. As a result, critical race scholarship tends to focus on the blackwhite racial paradigm, excluding Asian Americans and other racial minorities. For example, in a recent colloquy entitled “Racism in the Wake of the Los Angeles Riots,” the Korean American–African American conflict was not addressed with the exception of two footnotes in one article and a discussion in another article of the actions taken by the Korean government to try to protect Korean citizens and immigrants.56 Nor were the perspectives of Korean Americans represented in any of the articles. While the individual authors are not to be blamed for these omissions, the colloquy, taken as a whole, has serious gaps, with the result that the colloquy, and more generally, the discourse on race and the law, is not as rich or complete as it should be. These omissions foreclosed the possibility of reaching a greater understanding for the existence of racial tensions, how they have been fostered by legal decisions, and what might be done to bridge the differences. To focus on the black-white racial paradigm is to misunderstand the complicated racial situation in the United States. It ignores such things as nativistic racism. It ignores the complexity of a racial hierarchy that has more than just a top and a bottom. Asian Americans have a vested interest in helping to flesh out the racial paradigm. A critical Asian American legal studies is needed to address the coverage problem in both traditional civil rights work and in critical race scholarship. Perceptions fostered by the model minority myth contribute to the lack of coverage. Thus, one of the tasks of Asian American legal studies is to break the silence that surrounds our oppression. An important tool in breaking this silence is the use of narrative, which will allow us to speak our oppression into existence, for it must first be represented before it can be erased.57 But before narrative can be used in this way, a space must be created for its use in legal discourse.

4 Narrative Space

No discourse takes place in a vacuum. Each situates itself, or is situated, within a certain space.1 A new discourse must create a space within which to operate. A critical Asian American legal studies, as a new discourse, is no exception—it too must create a space, showing its relation to other discourses. Some of this work has already been done. In the previous chapter, I showed that the need to develop a critical Asian American legal studies is, to an extent, a response to the inadequacy of the current discourse on race and the law. It fills the gap created by the problems of coverage and theory in traditional civil rights work and the problem of coverage in critical race scholarship. Use of narrative is an important tool in addressing the oppression of Asian Americans. Narrative as methodology developed in response to the exclusion of the disempowered from mainstream discourse. As it arises out of exclusion, “we must realize that [it] is, in the first instance, the product of damage, of damage more or less systematically inflicted on cultures produced as minorities by the dominant culture.”2 However, to call it a product of damage is not the same as to call it a damaged product. Instead, the damage has been transformed into a positive—the oppressed may claim an access to a truth that is not available to the oppressor. Narrative has captured the imagination of legal scholars writing in law and literature, feminist legal theory, and critical race theory. An important difference, though, is that the law and literature movement talks about narrative, whereas feminist and critical race scholarship “does” narrative.3 Feminist and critical race scholars employ narrative to challenge settled notions of equality, to expose oppression that might otherwise be invisible without their stories.4 However, the use of narrative in legal scholarship has been and continues to be hotly contested in the context of those two disciplines.5 Thus, Asian American legal scholarship cannot use narrative effectively without first clearing space for its use.

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The debate over the use of narrative in legal scholarship has been captured by the different-voice question. The idea of a different voice was first put forward by Carol Gilligan, who theorized that women approached moral questions differently than men. She criticized the work of Lawrence Kohlberg, a moral developmental theorist, who concluded that an abstracted, rule-based approach to moral questions was a sign of moral maturity. Gilligan noted an important defect in Kohlberg’s methodology—he had only studied boys. Gilligan, in her study, found that girls tended to emphasize relational aspects of moral questions rather than abstract rules.6 If true, recognition of these different moral orientations will have a profound effect on many institutions, especially in law, a rule-based system formulated largely without the active participation or real consideration of women. Could a similar sort of claim be made for racial minorities—that law, formulated largely without the active participation or real consideration of racial minorities, is therefore flawed, incomplete, or inadequate to address fully the needs of racial minorities? Do racial minorities speak in a “different voice” that must now be considered? A prominent African American law professor at Harvard denounced this notion of a different minority voice and criticized a number of scholars of color who had written about minority exclusion from mainstream legal discourse and institutions. Some of them employed narrative methodology,7 sparking widespread debate without any real resolution.8 Recently, the flames of this debate were fanned by Daniel Farber and Suzanna Sherry, who make basically the same charge and criticize the use of narrative by feminist legal and critical race scholars because these scholars have not yet proved by empirical evidence the existence of a different voice. They argue that although some evidence exists that men and women possess different perspectives on the law, the weight of the evidence does not support either of the strong versions of the different voice thesis: i) that the voices of men and women are so different that the former normally can neither understand nor evaluate the work of the latter, or ii) that women are in a unique position to transform legal scholarship.9

They further assert that no evidence of a voice of color has been presented and that “[m]ost critical race theorists simply postulate the existence of a difference, often citing feminist scholarship for support, and thus implicitly equating a male voice with a white voice.”10 However, as Richard Delgado notes, the critics misunderstand that “[v]oice is a false issue.”11 I would go further and say that by focusing on the

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existence of a different voice, Farber and Sherry have created the equivalent of an essentialist trap. A direct refutation of their argument, by positing the existence of a different voice for women and people of color, would be subject to charges of essentialism, which many feminists and critical race scholars reject.12 Moreover, Farber and Sherry fail to take into account that feminist theory has, for the most part, moved beyond the idea of a different voice arising out of some unitary female experience that binds all women. Instead, feminist theory has recognized for some time now that identities are contradictory, multiple, partial, and strategic, giving rise to a multiplicity of voices.13 It is time now for critical race theory to do the same, to move beyond the false issue of voice and its accompanying question of authenticity, because the use of narrative need not depend on the notion that people of color speak in a different voice. The argument I put forth is not unique to Asian Americans, but I make the argument here because space must be created for the use of narrative in Asian American legal studies. I begin by showing how perspective matters. I then briefly describe resistance to outsider stories. In the face of this institutional disapproval, outsiders can either conform to the dominant objective mode of discourse or continue telling their stories. One problem with the former is that many people find this dominant objective voice to be foreign. In the context of feminist theory, Carolyn Burke comments: “The very forms of the dominant mode of discourse show the mark of the dominant masculine ideology. Hence, when a woman writes or speaks herself into existence, she is forced to speak in something like a foreign tongue, a language with which she may be personally uncomfortable.”14 The same may apply to Asian American and other scholars of color in the academy. In addition to being foreign, the dominant voice may not adequately capture the power and intensity of dealing with racism as effectively as a narrative-based legal scholarship. In order to pursue the latter course, however, the case must be made for narrative. I describe two strategies for validating narrative. The first and, as I will argue, ultimately unsuccessful strategy takes place within the rational/empirical mode. The second takes place within postmodern or poststructural theory. In doing so, I resist the notion expressed by one commentator that “postmodern ‘theory’ can be perceived as the discourse of privileged members of society who claim to explain and justify different voice scholarship and, in so doing, attempt to colonize the writing of minorities and outgroup members.”15 There is, of course, the argument that I, as a minority-voice scholar, have been co-opted by using poststructural theory. Am I simply echoing

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Alexander Crummell, a black American who, commenting on Liberia and the future of Africa, said that the “acquisition of [the English language] is elevation”?16 Note the choice of words—English language acquisition as elevation, not simply necessary or beneficial. English language acquisition is put forth as the price of the ticket to join the “civilized” world. Jane Tompkins writes about a similar dynamic in the context of feminism: Not long ago, as organizer of an MLA session entitled “Professional politics: women and the institution,” I urged a large roomful of women to “get theory” because I thought that doing theory would admit us to the big leagues and enable us at the same time to argue a feminist case in the most unimpeachable terms—those that men had supplied. I busily took my own advice, which was good as far as it went. But I now see that there has been a price for this, at least there has been for me. . . . I now tend to think that theory itself, at least as it is usually practiced, may be one of the patriarchal gestures women and men ought to avoid.17

It is with a certain caution, then, that I proceed and make the case for poststructuralism and a critical Asian American legal studies.

Perspective Matters When the legal academy was made up almost exclusively of privileged white males, a legal scholar did not have to reveal the context from which he spoke because nearly everyone occupied the same context. This shared context fostered a false sense of acontextuality, where one could pretend to be aperspectival because only the dominant perspective was represented.18 With the entry of women and persons of color into the legal academy and with their use of personal narrative in scholarship, whether perspective matters has become a contested issue. Other disciplines recognize the importance of perspective, but law has tended to resist this notion.19 Even science, once the model for the study of law, has come to recognize that the perspective of the observer matters. One example comes from a long-standing dispute among physicists about whether light is a wave or a particle. Adherents of the wave theory, limited by their perspective, were unable to see that light sometimes behaved like a particle. Likewise, adherents of the particle theory were unable to see that light sometimes behaved like a wave. Because each group saw things from only its perspective and was unable or refused to see things from the other’s

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point of view, the groups were unable to see that, instead of being just one or the other, light could be both wave and particle.20 Another example comes from quantum mechanics and the Heisenberg Uncertainty Principle. Here, the observer, through the act of observation, plays a role in determining the spin of an electron which will either be positive or negative, but which prior to the observation was (and perhaps after the observation still is) neither positive nor negative.21 Just as science has learned that the perspective of the observer can affect, and in certain circumstances determine, what is observed, law must also recognize the importance of perspective. Laurence Tribe reminds us, “Difficult as it is to view the world from someone else’s perspective, not to make the effort is to ignore what science learned long ago.”22 The lesson from science for the legal academy is simple: Listen.

Resistance to Narrative Although more scholars are beginning to use narrative, this development has been accompanied by warnings from mainstream academics about how these narratives should be presented.23 With these warnings, storytelling becomes a risky scholarly endeavor because the stories are not accepted as evidence or, at best, are placed in the category of anecdotal evidence, which does not occupy a privileged place in the law. One critic dismisses the scholarship of some narrative legal scholars as “resembl[ing] the telling anecdotes of talented journalists.”24 This concern about the anecdotal nature of personal narrative manifests itself in resistance and doubt from audiences when they hear stories from critical race scholars. An example can be seen in audience reactions to Patricia Williams when she tells her now infamous Benetton story. As she was shopping on a Saturday afternoon in New York, she saw a sweater that she wanted to buy in a Benetton store window. This store, like many others in the city, had adopted a buzzer system. The doors were locked, and a store employee would buzz in the customers. When Williams, who is African American, pushed the buzzer and requested admission, the store employee who subsequently saw Williams’s face mouthed the words, “We’re closed.” However, several white people were shopping inside and it was two Saturdays before Christmas.25 Audiences, disturbed by her narrative, pose questions such as the following:

66 | Narrative Space Am I not privileging a racial perspective, by considering only the black point of view? Don’t I have an obligation to include the “salesman’s side” of the story? .... How can I be sure I’m right? What makes my experience the real black one anyway? Isn’t it possible that another black person would disagree with my experience? If so, doesn’t that render my story too unempirical and subjective to pay any attention to?26

These questions are similar to the questions I face when I tell my stories. I usually keep such stories to myself because when I relate them to others, I often hear doubt in their voices and in their questions. How do you know it was racism? How do you know that the same thing would not have happened to anyone else? They question the details. Did you really see the border guard smirk? How do you know that the service station was not out of gas? But I am ready for their questions. I have prepared answers. The car before me at the service station got gas, and the white man in the car in front of me at the border crossing did not have a problem with his driver’s license. Yes, I could see that far away; I have good vision. As the questions keep coming, I realize that people do not want to believe me. They do not want to see racism because it is ugly. They have learned or convinced themselves that such ugliness does not exist, at least not in such blatant forms, and not with regard to Asian Americans. From their perspective, since Asian Americans do not suffer from discrimination, I must be mistaken, deluded, or lying. And even if they believe my stories, they discount them as isolated incidents. Although the questions that Patricia Williams and I face represent common concerns when our stories are used in a discourse on law, there are also important differences. While people usually concede that African Americans suffer from discrimination, they often question its extent or pervasiveness.27 In the case of Asian Americans, however, people do not even reach the question of extent because, as discussed earlier, the majority of Americans do not believe that Asian Americans are discriminated against. Nor is this false belief in the Asian American model minority myth confined to the general public—it has infected government officials and members of the judiciary as well. This creates problems for legal storytellers when they speak about Asian Americans. Kathryn Abrams speaks generally about these concerns in an article entitled “Hearing the Call of Stories.”28 She describes these concerns as chal-

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lenges to “truth” and “typicality.” She uses “truth” in the common sense and “typicality” in the sense of “universality” or “statistical significance.” Thus, if the narrative is not true or not typical, it cannot serve as the basis for legal change. Abrams then discusses aspects of various narratives that make them either believable or problematic, and concludes that there are multiple ways that a narrative can achieve credibility—through revealed pain, through the cohering, particularized knowledge of the expert witness, through the ignition in the reader of a flash of recognition—and that many narratives already do satisfy the criterion on which challengers had argued they fell short.29

While Abrams provides useful categories and terms for discussing and evaluating narratives, she does not sufficiently address what happens when readers are “eager to discount, discredit, or otherwise distance themselves from such discussions,” a concern that she raises early in her article but to which she never returns.30 In such a situation, pointing out to “challengers” that the narrative is credible because it contains “revealed pain” or “cohering, particularized knowledge of the expert witness” or “the ignition in the reader of a flash of recognition” may not persuade a challenger to drop the challenge. This concerns me because with race narratives, the race of the narrator and the race of the reader play an important role in whether the narrative will be taken as credible. Race influences the way people perceive others. If the reader is consciously or unconsciously biased against the narrator because of her race, this bias will likely affect the reader’s perception of the narrator’s credibility. This problem is perhaps unavoidable because everyone has to some extent been affected by the “common historical and cultural heritage in which racism has played and still plays a dominant role . . . [and t]o the extent that this cultural belief system has influenced all of us, we are all racists.”31 Furthermore, race narratives, when directed toward the dominant group, almost always challenge the dominant group’s belief system, especially when the race narratives are told by critical race scholars. In such a situation, a more compelling reason to listen to and to consider narratives seriously must exist besides the possibility that narratives do what Abrams claims. In other words, an argument based on narrative integrity is insufficient to convince a reader to consider seriously the message of the narrative. In a recent article about the use of narratives in legal discourse, Daniel Farber and Suzanna Sherry echo some of Abrams’s concerns about truth and typicality but claim that “[t]he real question here is not objective ‘truth,’

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but honesty.”32 They distinguish three different statements that could be made about a described event: 1. “If you had been watching, this is what you would have seen”; 2. “The situation might not have looked this way if you had been watching, but this is how it felt to me”; and 3. “The situation didn’t feel this way to me at the time, but this is how it seems to me now.”33

They then say that “since the first standard is the ordinary understanding of truth, it would be dishonest to present statements that are only true under the second or third standards without an explicit disclaimer.”34 The unstated corollary is that it would be honest, such that one need not provide a disclaimer if one’s claim is, “If you had been watching, this is what you would have seen.” But this claim can be true if (and only if ) the perspective of the observer is irrelevant. This is true if (and only if ) an objective account is being rendered. Thus, even if one claims otherwise, this argument about honesty is really about objective truth. The result, then, is that their argument fails to hit the mark because they do not address the “real question.” When the real question about objectivity is asked, further questions are revealed. What counts as knowledge? What counts as evidence? One use of outsider stories is to demonstrate the inequities of the present situation. The disempowered find ourselves in a peculiar position because the evidence we would use to prove our oppression consists of the very stories that are now disbelieved or excluded because they are only stories. In this way, rules of evidence silence us. In order to get our stories into evidence, we need to broaden or change the very meaning of evidence. To make the case for narrative I turn now to epistemology because our theory of knowledge largely determines what counts as knowledge and what counts as evidence.

Epistemological Strategies There seem to be two ways of arguing the case for personal narrative. The first takes place within the rational/empirical mode. I use the term “rational/empirical” to denote any mode of discourse characterized by the Enlightenment premise that objective knowledge is accessible to or knowable by human beings.35 In the rational/empirical mode, an argument will be convincing if it meets certain standards of “impartiality, objectivity, evidential confirmation, comprehensiveness or completeness, and explanatory

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power.”36 Narrative would be offered to challenge the current formulation of objectivity, but not the notion of objectivity itself. In this sense, narrative reveals bias in supposed objectivity and then reconstructs it to include previously excluded perspectives. Some strands of feminist theory and critical race theory have this as their goal and rely to some extent on a version of standpoint epistemology to legitimize the use of stories of oppression. The second, more radical approach challenges the rational/empirical mode by challenging the very notion of objectivity and the accessibility of knowledge. This more radical critique is often characterized as postmodern or poststructural.37 These terms are similar, and many theorists use them interchangeably, but just as I use “rational/empirical” instead of “modern,” I will use “poststructural” as the term that specifically denotes an antifoundational epistemological stance. In challenging the rational/empirical mode, this more radical critique also challenges the standpoint epistemologies that might support the use of personal narrative. Since all standpoints are equally validated (or invalidated), there is no longer any compelling reason to privilege any viewpoint. To state it differently, my personal narrative is as relevant as your personal narrative, and since both of them are equally relevant, they are equally irrelevant.38 I will examine how poststructural theory has responded to this challenge, but first I will discuss the rational/empirical. Arguing in the Rational/Empirical Mode Mainstream academic legal discourse begins from the premise that objective knowledge exists and is accessible. I call this the rational/empirical position. My own theoretical bias tells me that this is a false premise, but I start here to show how the case for personal narrative would appear within the context of mainstream academic discourse. Different disempowered groups have developed a similar methodology that tries to reveal bias in supposedly neutral standards. Feminist legal scholars ask “[t]he woman question.” They ask “about the gender implications of a social practice or rule: have women been left out of consideration? If so, in what way; how might that omission be corrected? What difference would it make to do so?”39 Race scholars ask the race question, and so on. Those asking this type of question have come to question the use of the objective voice. The objective voice is obtained by abstracting from the individual in order to universalize the perspective of the author so that not only does the author, as an abstracted entity, speak as Everyman, but the author also

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presumes to speak for everyone. A favorite device is the use of what one commentator calls the “constitutive we.”40 This “constitutive we” appears in the work of many philosophical and legal theorists. For example, the political philosopher John Rawls uses “we” in a subtle way that includes “us” as fellow inquirers into the questions he poses.41 But who does he think “we” are?42 Jane Tompkins describes the use by authors of the first person plural as a convention in which the author establishes common ground with his reader by using the first person plural—a presumptuous, though usually successful, move. Presumptuous because it presumes that we are really like him, and successful because, especially when an author is famous, and even when he isn’t, “our” instinct (I criticize the practice and engage in it too) is to want to cooperate, to be included in the circle the author is drawing so cosily around “us.” It is chummy, this “we.” It feels good, for a little while, until it starts to feel coercive, until “we” are subscribing to things that “I” don’t believe.43

One goal of personal narrative is to discredit this “we.” For example, I might use personal narrative to show that the use of “we” is a lie because it does not include “me.” The stories of outsiders become important because they tell the story from different perspectives that may have been excluded when formulating the objective, universal “we.” It is important to remember that at this stage, personal narrative is not being offered to replace what had previously been thought of as objective: to impose my subjectivity upon everyone else only repeats the sin. Rather, personal narrative is being offered to show that objectivity may actually be a disguise for white male subjectivity, for “white solipsism,” described by Adrienne Rich as not the consciously held belief that one race is inherently superior to all others, but a tunnel-vision which simply does not see nonwhite experience or existence as precious or significant, unless in spasmodic, impotent guilt-reflexes, which have little or no long-term, continuing momentum or political usefulness.44

White solipsism takes away the subjectivity of the disempowered. One attempt to restore these lost subjectivities relies on a version of standpoint epistemology. An objectivist or liberal epistemology takes as the proper standpoint that of the “neutral, disinterested observer, a so-called Archimedean standpoint somewhere outside the reality that is being observed.”45 In contrast, standpoint epistemologies identify a certain group as victim and then “privileges that status by claiming that it gives access to un-

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derstanding about oppression that others cannot have.”46 In the context of feminism, “[t]he feminist standpoint epistemologies argue that because men are in the master’s position vis-á-vis women, women’s social experience—conceptualized through the lenses of feminist theory—can provide the grounds for a less distorted understanding of the world around us.”47 This same point can and has been made about other oppressed groups.48 A question that arises is why the viewpoint of the oppressed should be privileged. Carey McWilliams provides one answer in the introduction to Filipino author Carlos Bulosan’s America Is in the Heart: One of the best ways to view and understand a society is to see it from the bottom looking up. . . . [People at the bottom] see more . . . than those who occupy the middle and upper reaches; their view is less inhibited, less circumscribed. The view from down under exposes the deceits, self-deceptions, distortions, apostasies; it is likely to be bitterly realistic. It offers a good, if limited, guide to what the society is really like, not what it professes to be.49

But the claim that the standpoint of the oppressed is more impartial is unconvincing. It seems that the standpoint of the oppressed would be partial; it would not necessarily provide less distorted views but, instead, would provide differently distorted views. The claim of knowing what society as a whole is “really like” also seems problematic because the viewpoints of the oppressed and oppressors are quite distinct and complex. It still makes sense to include the standpoint of the oppressed, not because it has any special access to the truth, but because what is taken as truth is likely to be incomplete or distorted without the views of the oppressed. There is the further problem of identifying the standpoint of the oppressed. If oppression or subjugation provides the ground for having a less distorted view, then it would seem that a prime candidate would be the standpoint of poor, physically challenged lesbians of color. It is clear that we could add even more factors that would heighten oppression.50 Even if, for the sake of simplicity, we decide that the relevant category is that of women, we are still left with the problem of identifying this standpoint. One commentator warns that we cannot discover this standpoint “directly in women’s naive and unreflective world view,”51 because this world view, usually labeled as false consciousness, has been shaped by the dominant male perspective so that it cannot be trusted. Even with standpoint epistemology, then, not all stories of oppression are created equal. This is problematic “because of the unwillingness, central to feminism, to dismiss some

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women as simply deluded while granting other women the ability to see the truth.”52 The problem is further exacerbated because even if a standpoint of women is decided upon, and I will not ask by whom, this standpoint is open to the charge of gender essentialism, “the notion that a unitary, ‘essential’ women’s experience can be isolated and described independently of race, class, sexual orientation, and other realities of experience.”53 This charge of essentialism becomes even more damaging when it turns out that the “essential” women’s experience silences the voices of women of color.54 I address these concerns because these same problems also plague the case for personal narrative. When we listen to personal narrative, we must ask two questions: who is the narrator speaking as, and for whom is she speaking? For example, when I tell my stories, am I speaking as an Asian American for all Asian Americans? If I make this claim, then am I not privileging my voice to the exclusion of other voices? And if I do not speak for all Asian Americans, then what sort of normative conclusions can I draw from my narrative? Are my stories just stories? I think that there are no satisfactory answers to these questions, at least no answers that provide a compelling justification for using personal narrative based on standpoint epistemology. Part of the difficulty comes from the level of abstraction one deals with when arguing within the rational/empirical mode. This difficulty cannot be overcome unless these abstractions are put back into context.55 Ultimately, trying to argue for narratives in the rational/empirical mode may lead one to become skeptical of the very premise of this mode—that an objective truth or knowledge is attainable. This issue has haunted Western philosophers since ancient times without any definitive resolution. For example, Plato was never quite able to articulate a complete theory of knowledge. In his longest sustained treatment of epistemology, the Theaetetus, Plato refutes the doctrine of relativism (which made man the determining factor of all experiences) along with the doctrine of flux (which held that the only thing that exists is change) but remains unable to formulate a positive theory of knowledge.56 Thus, the questions remain. What is objective knowledge? How can we objectively know that something is objective knowledge without already knowing what objective knowledge is? This circularity is implicit in most attempts by philosophers to attain knowledge. Hegel addresses this circularity in his critique of Kant’s attempt to ascertain the possible conditions for knowledge: “What is demanded is thus the following: we should know the cognitive faculty before we know. It is like

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wanting to swim before going in the water. The investigation of the faculty of knowledge is itself knowledge, and cannot arrive at its goal because it is this goal already.”57 This demand to know knowledge may create a crisis for those having faith in objective knowledge. Thomas Nagel argues that [o]bjectivity itself leads to the recognition that its own capacities are probably limited, since in us it is a human faculty and we are conspicuously finite beings. The radical form of this recognition is philosophical skepticism, in which the objective standpoint undermines itself. . . . Skepticism is radical doubt about the possibility of reaching any kind of knowledge, freedom, or ethical truth, given our containment in the world and the impossibility of creating ourselves from scratch.58

It is important to note, though, that “[t]he skeptic does not deny that what is described as knowledge is in fact knowledge. Rather, the skeptic denies that we ever have knowledge.”59 Thus, one can be a skeptic and still believe in objective knowledge. Nagel takes this position when he says that even though objectivity is impossible to attain, we should nevertheless still try to achieve it. His method is to “think of reality as a set of concentric spheres, progressively revealed as we detach gradually from the contingencies of the self ” in order to achieve “the view from nowhere.”60 However, it is impossible to achieve an abstraction from the self that brings one to “the view from nowhere,” and even if it could be achieved, one might find that the view from nowhere is a view of nothing.61 An alternative to the problems inherent in the rational/empirical mode and philosophical skepticism may be found in a different kind of epistemology, one without foundations. Poststructuralism and the Narrative Turn Poststructuralism relies on a conception of language and knowledge that is not based on any universalist theoretical ground.62 In other words, poststructuralism is anti-foundational in nature. Stanley Fish writes: Anti-foundationalism teaches that questions of fact, truth, correctness, validity, and clarity can neither be posed nor answered in reference to some extracontextual, ahistorical, nonsituational reality, or rule, or law, or value; rather, anti-foundationalism asserts, all of these matters are intelligible and debatable only within the precincts of the contexts or situations or paradigms or communities that give them their local and changeable shape.63

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From this, it might seem that antifoundationalism is nihilistic; however, it is quite the opposite in that it provides for certainty, but only within the local, partisan point of view, which is posited as the only available point of view. And as one commentator notes, “[k]nowing that my knowledge is perspectival, language-based, culturally constructed, or what have you, does not change in the slightest the things I believe to be true.”64 Many people, though, find it disturbing that there are no external, overarching systems of legitimation.65 They want to be able to say, for example, that all Nazis are bad, all of the time. They are concerned that if Fish’s antifoundationalism is correct, then they will not be able to pass judgment on Nazis, that they will not be able to engage in meaningful social criticism. Fish responds that antifoundationalism does not prevent value judgments; it only allows value judgments to be made and to have meaning in certain contexts. Thus, to try to make a universal, ahistorical claim about all Nazis being bad is meaningless because the phrase “all Nazis are bad” has meaning only in certain contexts.66 The implication of antifoundationalism for the practice of social criticism is that it cannot provide a compelling “ought” in the rigorous sense of the word. A compelling “ought” is one that is morally and unconditionally imperative.67 But then “ought” has been on shaky ground ever since David Hume said, “’Tis not contrary to reason to prefer the destruction of the whole world to the scratching of my finger.”68 Even Immanuel Kant, a strong believer of compelling “oughts,” had difficulty with the question, “What ought I to do?” Kant stated, “So far, then, as knowledge is concerned, this much, at least, is certain and definitively established, that in respect of [that question], knowledge is unattainable by us.”69 We cannot know with certainty, with finality, what we ought to do. Yet despite this uncertainty, life went on. Morality was not destroyed, and anarchy did not ensue. The fear is that if we go down the postmodern road, we will no longer be able to practice social criticism in a compelling way, because without objectivity, Asian Americans and other disempowered groups cannot claim that our emergence from subordination “is less artificial and constructed than that which [we] have cast off.”70 This conclusion seems to be the ultimate logic of the poststructuralist critique. However, this conclusion is not as devastating as it first might seem. It does not render political action impossible; if anything, it does the opposite, in the sense that political action is all that will be left. The poststructuralist critique changes the present game, which involves the search for legitimation, by eliminating the possibility of any appeal to an external standard for legitimation. It becomes, as if it were

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ever anything but, a question of power, where no one can claim a superior legitimacy or deny the legitimacy of another’s viewpoint or story.71 Narratives, then, cannot be discounted because in this game of power there is no “objective” standard for disqualification. One “wins” by being more persuasive. Narratives, especially those about personal oppression, are particularly well suited for persuasive purposes because they can provide compelling accounts of how things are in society. These stories will carry considerable persuasive power because in our present political-legal climate, which is dominated by liberal political philosophy, oppression is bad. Oppression, when recognized, requires redress. This is the space within which a critical Asian American legal studies will make the case for social and legal reform by narrating our history and current status, taking our rightful place in the American nation.

5 A Narrative Account of Asian America

Exclusion has many faces. Its harms are insidious and its methods multifarious. One reason that exclusion is so readily able to work its harms is that, at a certain point, it becomes so pervasive that it becomes invisible. In this way, the present-day effects of exclusion become disconnected from the past. As a consequence, the oppressed are blamed for the sins of their oppressors. For example, the dominant group often condemns the existence of ethnic enclaves such as Chinatowns and decries the unassimilability of Asian Americans. In doing so, the dominant group forgets that its laws and its history helped to create these ghettos. In this way, the past is obscured, and the victim is blamed, or worse, forgotten. But since “[i]nvisibility is not a natural state for anyone,” efforts can be made to combat it, remembering that “[p] art of being visible is refusing to separate the actors from their actions, and demanding that they be responsible for them.”1 In chapter 3, I examined two informal mechanisms of oppression—nativist-inspired violence and discrimination and the racial hierarchy reinforced by the model minority myth—to show the need for a critical Asian American legal studies to address such issues. The general public views occurrences of anti-Asian violence as isolated incidents and not part of a larger pattern and believes Asian Americans to be successful and therefore not victims of discrimination. To counter this dominant mindset and make visible the problems of Asian Americans, I offer differing accounts, or what Richard Delgado calls “counterstories.”2 I tell counterstories in this chapter to show how narratives perform three related and overlapping functions: (1) reveal the real-life effects that discriminatory laws and governmental neglect have on individuals’ psyches and Asian American communities’ development; (2) counter the popular notion of Asian Americans as apolitical; and (3) effectively challenge unjust laws and correct past injustices. These functions of narrative are especially important for Asian Americans, since the

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model minority myth and the erroneous belief that Asian Americans do not face discrimination cloud and mask the oppression of Asian Americans. We must tell our stories and our history again in order to shatter the myth and other mistaken beliefs about Asian America. Only then can we bring about social change. If social and political change is ultimately a game of power and persuasion, then narratives provide both an insight into everyday realities and a moral “punch” to justify and bring about change. I will examine important areas of Asian American history and experience where narratives have or could perform one or more of the functions discussed above. This chapter is neither a comprehensive nor definitive history. It is not intended to argue solutions. Rather, it brings to view moments in Asian American history when our stories of formal and informal injustice have been most poignant, and therefore potentially most effective in bringing about change. I proceed chronologically, by first examining the immigration, naturalization, and voting-rights laws, which, as formal expressions of nativistic racism, have prevented Asian Americans from participating fully in law and politics. Second, I will examine one of the seminal events in Asian American history, the Japanese American internment during World War II and the subsequent Redress and Reparations Movement, which succeeded primarily because of the personal stories of former internees. Third, I will tell the contemporary narrative of Asian immigrant garment workers, a group that does not fit the model minority stereotype, in order to show that the myth rings false among the tremendous diversity within Asian America and to suggest that such narratives can be used to bring about social and legal change for these groups. Indeed, the many socioeconomic, cultural, and historical differences among Asian American groups make it even more imperative that Asian American issues and history are given a special voice and forum. Ultimately, however, despite these differences, all Asian Americans share certain common experiences that connect and unify us. What follows, then, is a story of the past. It is also a story of the present. I tell it now because I do not want it to be a story of the future.

Borders Everywhere America has power, but not justice. In prison, we were victimized as if we were guilty. Given no opportunity to explain, . . . I bow my head in reflection but there is nothing I can do.3

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This poem was written by an anonymous Chinese immigrant detained on Angel Island in San Francisco Bay. It was discovered on the walls of the Angel Island barracks, along with over 135 other poems written by Chinese immigrants awaiting either permission to enter the United States or orders for deportation from America.4 In the first half of this century, all immigrants from China were held at Angel Island, detained as suspects until their claims for right of entry were verified by intensive cross-examination. Often the same question would be addressed separately to the applicant and witnesses. Discrepancies could endanger the application. One former detainee, a twelve-year-old boy at the time, recalls: “Sometimes the interrogator would try to trip you, like I told him the village’s altar of worship was on the east side of the village. At the next session, he said my papa said it was on the west side. But I still said east side, and they all laughed.”5 An unfavorable decision could be appealed, but the process took a long time, and some immigrants were detained on the island for as long as two years awaiting final disposition of their cases.6 The feeling of powerlessness the poet describes reflects the culmination of discriminatory policies that began soon after the Chinese first arrived in America. Individual and community stories from this period resonate with degradation and despair. But the early history of Asian immigrants is also marked by their determined struggle against anti-Asian discrimination. Knowledge of the experience of the early Chinese immigrants provides a context for understanding the experiences of all Asian immigrant groups because other Asian immigrants encountered similar violence and discrimination when they arrived. Later arrivals, trying to avoid this discrimination, distanced themselves from earlier arrivals. For example, in an attempt to distinguish themselves from the Chinese, Japanese men wore Western-style suits when they arrived in the United States, and Japanese “picture brides who arrived wearing kimonos and wooden clogs were whisked off upon landing by their husbands to dressmakers and shoemakers to be outfitted with Victorian clothing and shoes.”7 In similar fashion, later-arriving Korean immigrants “thought that the Chinese and Japanese immigrants before them had provoked white anti-Asian reactions by retaining their old ways and keeping to themselves.”8 They tried to overcome racial discrimination by distancing themselves from the Chinese and Japanese and by becoming more “Westernized.” Asian Indians were distinguished from other Asians by European and North American scholars, who identified Asian Indians as descendants of the Aryan (white) race; many Asian Indian immigrants embraced this myth.9 Filipinos distanced themselves from the Chinese by iden-

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tifying themselves with the Malay rather than the Mongolian race.10 In essence, the discriminatory laws against the Chinese not only hurt the Chinese immigrants but, by encouraging each group to be more Western than the next, also prevented the building of coalitions among different Asian American groups. Ironically, despite these efforts by Japanese, Korean, Asian Indian, and Filipino immigrants to Westernize and to be accepted, they were treated by white Americans as merely different strains of the same “Yellow Peril” first embodied by the Chinese. The Chinese, along with thousands of other pioneers, were drawn to California by the Gold Rush, with 325 Chinese arriving in 1849, 450 in 1850, 2,176 in 1851, and 20,026 in 1852.11 They were not long in the United States before they began encountering legal and political opposition. First came discriminatory taxes imposed by the legislature. Then came discriminatory treatment in the courts, with Chinese leaders complaining as early as 1853 about the exclusion of testimony of Chinese witnesses and the fear that this exclusion was encouraging violence against Chinese workers.12 The California Supreme Court refused their pleas for justice in the 1854 case, People v. Hall, demonstrating the lengths to which the California Supreme Court would go to protect white privilege.13 George Hall, a white man, was on trial for the murder of Ling Sing, a Chinese man. At trial, the jury heard testimony from three Chinese persons and one Caucasian and found George Hall guilty of murder. The California Supreme Court reversed the conviction, holding that the Chinese testimony was improperly admitted because of a state statute preventing “blacks,” “mulattos,” and “Indians” from testifying against “whites.” The court, exercising word magic, decided that the reference to “Indians” in the statute included the Chinese, and referred to the theory that American Indians had originated in Asia and had crossed over the land bridge between Russia and Alaska and then spread throughout the Americas. As an alternative rationale, the court decided that “blacks” included other non-whites such as the Chinese because the legislature could not have intended to exclude testimony by blacks, mulattos, and Indians, only to permit testimony by Chinese persons against whites.14 This prohibition profoundly limited the chances for the Chinese, the vast majority of whom lived in California at this time, to obtain justice. The greatest formal obstacle, though, was the 1790 federal naturalization statute that permitted only “free white persons” to become naturalized.15 Following the Fourteenth Amendment and the subsequent amendment in 1870 of the naturalization statute to include persons of African nativity or descent, Asians became the only group of aliens ineligible for citizenship.16

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At the time naturalization for blacks was being considered, there were efforts by Senators Charles Sumner and Lyman Trumbull either to make the naturalization statutes colorblind or to include persons born in China. Both of their measures were soundly defeated.17 An 1878 decision by a circuit court in California solidified this bar against naturalization of Chinese aliens.18 Earlier courts had applied the naturalization statute inconsistently, but after the 1878 court decision, the Chinese were generally held ineligible for naturalization.19 Opinion was divided with regard to the Japanese and to Asian Indians, a few of whom had managed to become naturalized, but the U.S. Supreme Court eventually decided that “white persons” under the naturalization statutes did not include the Japanese and Asian Indian immigrants.20 The decision denying Asian Indians the right to naturalize nullified the citizenship of scores of Asian Indians granted before the decision. One commentator notes that “[b]y September 1926, forty-three South Asians had had their citizenship annulled while the others were to battle in the courts for years to come.”21 For at least one person, loss of citizenship was tantamount to loss of personhood. His suicide note, in which he claimed he had tried to be “as American as possible,” lamented: But now they come to me and say, I am no longer an American citizen. . . . What have I made of myself and my children? We cannot exercise our rights, we cannot leave this country. . . . I do not choose to live a life of an interned person. . . . Obstacles this way, blockades that way, and the bridges burnt behind.22

Improvements in these discriminatory naturalization statutes began during the 1940s and culminated with the McCarran-Walter Act of 1952, which finally eliminated the racial bar to naturalization.23 The damage, though, had already been done. Besides denying Asians the rights generally thought to accompany citizenship, classifying aliens into two groups—those eligible and those ineligible for citizenship—provided the basis for state discrimination. In essence, such classification permitted states to pass statutes that were race-neutral in language and thus immune to equal protection challenges, which nevertheless discriminated on the basis of race.24 Many states took advantage of this classification to outlaw ownership of land by aliens ineligible for citizenship.25 States also enacted licensing laws that prevented Asian immigrants, as aliens ineligible for citizenship, from becoming “attorneys, physicians, teachers, pharmacists, veterinarians, hairdressers, cosmetologists, barbers, funeral directors, peddlers,

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and hunters.”26 In certain parts of the country, children of Asian nativity or Asian ancestry were placed in segregated schools.27 Asian Americans were thus denied quintessential American rights, such as the right to own property, the right to choose one’s profession, and the right to send one’s children to public schools. Yet even through the hard times recounted above, Asian Americans did not passively accept these and other injustices. Most people know about Brown v. Board of Education28 and the cases leading up to it, in which African Americans challenged segregated school systems, but few people know that Asian Americans also challenged the legality of segregated schools. Chinese plaintiffs filed lawsuits as early as 1902 and 1924, challenging segregated schools as violative of their equal protection rights.29 Japanese immigrants pursued a political solution to the problem of segregated schooling.30 Although such measures ultimately proved unsuccessful, I mention them to counter the charge that Asian Americans have not faced discrimination and to challenge the myth that Asian Americans are a passive model minority. Asian Americans have worked actively to resist discrimination and have a rich tradition of struggling for civil rights. Asian American contributions to the civil rights movement have been largely ignored and are often actively denied. Even significant contributions to civil rights have been forgotten. For example, few people know that the Chinese played an important role in the enactment of Reconstruction-era civil rights legislation. Section 1981 of title 42 of the United States Code, a major tool in civil rights litigation, derives not from section 1 of the Civil Rights Act of 1866, but from section 16 of the Civil Rights Act of 1870, “a statute that was not designed—at least not in any primary sense—to promote the civil rights of the nation’s newly emancipated black citizens, but rather to respond to the plight of another aggrieved racial minority—the Chinese of California.”31 Section 16 of the 1870 Civil Rights Act was enacted because of successful lobbying efforts by leaders of the Chinese immigrant community who met with members of Congress to address the issue of justice and equality for the Chinese in America.32 While the language of section 16 is similar to that of section 1 of the 1866 Act, one key difference exists: section 16 went further in extending civil rights to all persons and not just to citizens.33 This political victory was as important as the later legal victory in Yick Wo v. Hopkins, which resulted in a broad reading of the Fourteenth Amendment that extended equal protection not just to United States citizens but “to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality.”34 Section 16 of

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the 1870 Civil Rights Act and the Fourteenth Amendment became important tools for Chinese immigrants in their efforts to secure civil rights. Test cases brought after the passage of the 1870 Act by the Chinese did remarkably well in challenging discriminatory state and local measures.35 Despite its modest successes in challenging state and local measures, the Chinese community was unable to challenge effectively the federal government’s anti-Chinese measures.36 These federal measures ultimately had a profound impact on the psyche and development of the Chinese American community. In 1882, the United States government passed the first of a series of Chinese exclusion acts, specifically targeting Chinese by severely restricting their immigration. These acts culminated in the Geary Act of 1892, an act described as “the most draconian immigration law ever passed”: Singling out the Chinese by name for discriminatory treatment, the law required that all Chinese legitimately residing in the United States obtain from the collector of internal revenue a certificate affirming their right to be in this country. If a Chinese resident were found without a certificate, he would be subject to immediate and summary deportation unless he could find one white witness to confirm that he had resided in the United States before November 17, 1880.37

This Act remained valid for over fifty years. To enforce these exclusionary immigration laws, the government set up a special immigration station in 1910 near San Francisco. Here, hundreds of would-be immigrants were detained for months and were often sent back to China. The Angel Island facility, like Alcatraz Prison nearby, was intended to be escape proof.38 The detainment of Chinese immigrants on Angel Island and the discriminatory treatment they received created a sense of alienation and powerlessness not only in the detainees, but also in those Chinese already in the United States. The detainees were treated like animals or commodities, forced to live in squalid, cramped quarters. One detainee wrote, “Curled up in an enclosure, my movements are dictated by others. Enduring a hundred humiliations, I can only cry in vain. This person’s tears fall, but what can the blue heavens do?”39 For those Chinese already in the United States, the Chinese Exclusion Acts and the detainment of Chinese immigrants on Angel Island created a “feeling among the Chinese that they were allowed into this country only on the sufferance of the dominant white majority [which feeling] helped to foster alienation and uninvolvement in the larger society.”40 The number of persons of Chinese ancestry in the United States

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dropped from 107,488 in 1890 to 61,639 in 1920.41 As their numbers dwindled, most Chinese persons remained within the security and familiarity of ethnic enclave Chinatowns while others returned to China. The decline in numbers can also be partially attributed to the gender imbalance: in 1880, the male/female ratio was 21.1 to 1; in 1920, it had dropped to 7 to 1, but this latter figure is deceptive because most of the females were small children.42 This gender imbalance greatly hindered family formation. Immigration laws were soon passed that directly attacked the development of existing Chinese communities in the United States. When it appeared that more Chinese women were immigrating, a new immigration law was passed in 1924: One of the law’s provisions prohibited the entry of aliens ineligible for citizenship. “The necessity [for this provision],” a congressman stated, “arises from the fact that we do not want to establish additional Oriental families here.” This restriction closed tightly the gates for the immigration of Chinese women. “We were beginning to repopulate a little now,” a Chinese man said bitterly, “so they passed this law to make us die out altogether.”43

This provision crippled the development of a stable Chinese American community. In conjunction with the antimiscegenation laws in many states that prevented interracial marriage, it left single Chinese immigrant men with little prospect of forming traditional families. The provision added a legal barrier to the already present geographic barrier, the Pacific Ocean, between many families. Many Chinese immigrant men had wives in China who could not rejoin their husbands in the United States because of the immigration laws. The wives were left to care for the children conceived during rare visits by their husbands.44 Other Asian American groups underwent similar experiences, although the discriminatory strategies employed against them were different. Japanese immigration had largely been curtailed by three events in the early twentieth century: (1) the Gentleman’s Agreement of 1907, when Japan stopped issuing passports to laborers; (2) President Theodore Roosevelt’s Executive Order 589 in 1907 which prevented remigration to the United States of Japanese laborers from Hawaii, Mexico, or Canada; and (3) the cessation by Japan of issuing passports to picture brides in 1920. The final bar to Japanese immigration was the Immigration Act of 1924.45 Korean immigration began later than Chinese and Japanese immigration and was curtailed by Japan, which exercised colonial authority over Korea. Approximately five hundred Korean nationals managed to leave Korea and

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enter the United States as political refugees between 1910 and 1924. This practice was halted by the 1924 Immigration Act. Korean remigration from Hawaii to the mainland was stopped by President Roosevelt in a 1907 executive order. Like the Chinese American community, the Korean American community suffered from a gender imbalance that hampered family formation. In 1920, only 25 percent of the mainland U.S. population of 1,677 Koreans was female. In 1940, the total population of Koreans remained virtually the same, 1,711.46 The situation of Asian Indians was unique because their racial or ethnographic status was unclear. Between 1910 and 1917, immigration officials tried to limit Asian Indian immigration through the use of administrative regulations. The 1917 Immigration Act, which created a geographic “Barred Zone,” effectively ended immigration by Asian Indians.47 The male/female ratio was even more skewed for this group, with the result that a number of Asian Indian men married Mexican American women.48 Filipinos faced yet a different situation because the Philippines became a U.S. territory after the Spanish-American War. Although this did not make them U.S. citizens, it meant that Filipinos were “nationals,” not aliens. As such, they had unrestricted access to the United States. In protest, Senator Millard Tydings argued, “It is absolutely illogical . . . to have an immigration policy to exclude Japanese and Chinese and permit Filipinos en masse to come into the country.”49 To solve this “problem,” he sponsored a bill that made the Philippines a commonwealth, with independence to follow in ten years. The Tydings-McDuffie Act reclassified Filipinos as aliens and limited immigration to fifty persons a year. Exclusionists were still unhappy and successfully pressured Congress to pass a bill in 1935 to repatriate Filipinos, offering them free transportation to the Philippines “on the condition that they forfeit their right of reentry to the United States.”50 This bill contains echoes of the earlier attempts to repatriate blacks to Africa. These discriminatory measures remained largely in effect until the passage of the 1952 McCarran-Walter Act, which permitted the naturalization of Asian immigrants and set token immigration quotas.51 These quotas used 1890 as the benchmark, and except for aliens from the Western Hemisphere who were exempt, quotas for each nationality were set at 2 percent of the members of that nationality living in the United States based on the 1890 census, with a minimum of one hundred for each nationality. As a result, the McCarran-Walter Act, although finally eliminating the racist limitation on naturalization, had a limited impact on Asian American communities

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because immigration from most Asian countries was limited to an annual quota of one hundred. These restrictive quotas were largely in force until 1965, when the McCarran-Walter Act was amended to abolish the national-origins system as well as the Asiatic barred zone.52 The 1965 amendments profoundly affected the development—or, as Bill Hing states, the “remaking”—of Asian America: Families moved to “make themselves whole,” and women joined their spouses. Workers, particularly in the secondary but also in the primary labor markets, immigrated to take advantage of new opportunities. Asian Americans multiplied, most often in regions and neighborhoods with the cultural and economic capacity to absorb newcomers.53

The 1965 amendments permitted my family to emigrate to the United States from Korea. As an immigrant, I entered this country in the historical context that I have set forth. To an extent, I inherited that legacy of discrimination. I am bound by the still-present stereotype of Asian Americans as “aliens,” those who do not belong here and whose presence here is not desired. When a former colleague at a law school—to whom I had been introduced several times throughout the year—mistakes me for the “copy boy” and asks if I am “doing copying for the faculty,” the figurative border that marks my body has informed him that I am not one of them. When I am stopped by the police for suspicion of possessing a stolen vehicle, their actions and my reactions take place in the context of a history of nonresponsiveness to and active harassment of Asian Americans by police.54 Maybe it was the kind of car I was driving. Maybe it was the color of my car. Maybe, just maybe, it was the color of my skin. I find myself in internal and external conflict when I talk about these things. The internal conflict comes from the fact that I am an immigrant, and as an immigrant I sometimes wonder if I have a right to complain. This point was brought home to me in an anonymous student evaluation after my first year of teaching in law school: “Leave the racist comments out. Go visit Korea if you don’t like it here. We need to unit [sic] as a country not drive wedges between us.”55 I wonder if this student is right. However, in the same way that I inherit a legacy of discrimination against Asian Americans, I also inherit a legacy of struggle, a struggle that belongs to both foreign-born and American-born Asian Americans. Early Asian immigrants were not politically insular as popular American history has painted them.56 It is our responsibility to bring our forebears back from

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the silence in which they have been placed. We must recognize that the early Asian immigrants were brave enough to raise their voices. We can do no less.

Disfranchisement When I joined the faculty at my first law school, the dean told me that I could participate in faculty meetings. On the first Tuesday of September, I felt proud to attend my first faculty meeting. I did not know then that it would be the last meeting I would attend that semester. As issues came up for decision, I voted, just like the other faculty members. It was only after the meeting that I was told that, as a legal writing instructor, I was not allowed to vote. My face turned red. I did not return. The dean had not lied to me when he told me that I was allowed to participate in faculty meetings; we simply differed in our interpretation of “participation.” From my perspective, the dean’s notion of “participation” was impoverished because I included “meaningful” as part of my definition of “participation.” To an outside observer, it might appear that I stopped going because I did not care about faculty meetings. But when you listen to my story, you will understand that this is not so. Systemic disfranchisement—whether at the level of faculty meetings or national elections—discourages many Asian Americans from participating in the political process. This is reflected in the low voter registration statistics that show Asian Americans to be “grossly underrepresented in terms of their voting power in relation to their numbers in the population.”57 This political silence has been attributed to “cultural differences, the difficulty of combining Asian Pacific American subgroups into a cohesive ‘minority’ group because of their diverse nationalities and generations, and their lack of interest in politics.”58 These reasons, however, are largely myths created to prevent the enfranchisement of Asian Americans. The low voter registration figures can be attributed to several specific barriers that prevent Asian Americans from participating in a meaningful manner.59 The greatest historical barrier to Asian American participation in the political process was the fact that Asian Americans could not become naturalized and therefore could not vote, since only citizens had that right. Some states even prohibited American-born Asians from voting.60 This historical exclusion has an inertia that carries into the present. Yet the dominant culture and, in particular, the legislature and judiciary do not understand be-

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cause they are largely unaware of this pattern of formally excluding Asian Americans. The U.S. Commission on Civil Rights reported in 1992 that formal barriers to political participation still exist: 1) apportionment policies that dilute the voting strength of Asian American voting blocks; 2) the unavailability of Asian-language ballots and other election materials; 3) problems with the implementation of the Census of Population [because no Census forms use Asian languages, and data on Asian Americans from the 1980 Census was not released until 1988]; and 4) antiAsian sentiments among non-Asian voters and the media and the consequent dearth of Asian American political candidates (which may also be partly caused by political parties that ignore the Asian American population and do not actively seek or promote Asian candidates).61

I address the first two barriers examined by the Civil Rights Commission. Two current apportionment policies dilute Asian American voting strength: (1) the splitting of the Asian American population in an area into several voting districts, and (2) the establishment of at-large election systems in areas of high Asian American population. For example, the Los Angeles Koreatown, Chinatown, and Filipinotown areas are each split into multiple districts. An example of at-large districts diluting the strength of Asian American votes can be seen in Daly City, California, where Asian Americans (primarily Filipino Americans) constitute over 42 percent of the city’s population. Yet no Filipino American was elected to the city council until 1993.62 Attempts to redress Asian American vote dilution are hindered by a U.S. Supreme Court decision which requires that a minority group “be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.”63 One problem with this requirement is that it excludes Asian Americans, many of whom are geographically dispersed, at times involuntarily, through the will of the government. Examples of willful government action include the government’s appeals to Japanese Americans after World War II not to return to their communities in California after the internment; recent urban renewal programs that have forced many Asian Americans out of ethnic communities such as Chinatowns; and the purposeful dispersal of Southeast Asian refugees throughout the United States to lessen the “burden” on a particular community.64 These policies have made it difficult to meet the geographic requirements to prove voter dilution.

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Another formal mechanism that prevents greater voter participation among Asian Americans is the use of English-only ballots. Congress, recognizing the problems with English-only ballots, amended the Voting Rights Act in 1975 and again in 1982 to provide language assistance to “language minorities.” Congress found that through the use of various practices and procedures, citizens of language minorities have been effectively excluded from participation in the electoral process. Among other factors, the denial of the right to vote of such minority group citizens is ordinarily directly related to the unequal educational opportunities afforded them, resulting in high illiteracy and low voting participation.65

However, these measures did not take into account the distinct problems facing Asian Americans. Congress, in establishing that a language minority must constitute at least 5 percent of the voting-age population, did not consider the diversity of languages and cultures among Asian Americans. Thus, even if the Asian American population in a given political subdivision were greater than the requisite 5 percent, no single Asian American language minority constituted a large enough group to benefit from the Act’s provisions. As a result, no Asian American groups were able to claim the status of a “language minority” under that amendment.66 This did not change until the voices of Asian Americans spoke our distinct problems into existence. Because Asian Americans were unable to constitute language minorities for the purposes of the 1982 Voting Rights Act, members of the community began to voice concerns and to protest the Act. Many participated in roundtable conferences on civil rights sponsored by the United States Commission on Civil Rights, expressing their “concern about Asian Americans’ lack of political representation and political empowerment and decried the dearth of Asian American elected officials and political candidates.”67 Their efforts led to the 1992 amendment to the Voting Rights Act, which led to the enfranchisement of many Asian Americans, including over 60,000 in Los Angeles alone.68 Achieving enfranchisement is only the first step toward meaningful political participation and social change. The next step is to elect legislators and appoint public officials who will address and respond to the unique needs of Asian Americans. In legislative halls, executive agencies, and judicial chambers, the law is made and implemented, but Asian Americans, perhaps more so than other disempowered groups, have not yet been able to enter these domains in a significant way. Nevertheless, the voting-rights

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example shows how legal reform can be brought about when Asian Americans participate in the political process and give voice to our oppression and needs. The 1996 Campaign Finance Scandal and the vilification of Asian/American donors reminds us that we still have a long way to go.69

Speaking Our Oppression into (and out of ) Existence In the previous chapter, I showed how the poststructural critique revealed the fallacy of the current search for political legitimation and how the real political question is and always has been about power. One way to gain power is through the use of physical force; another is through the use of verbal force. Both are “legitimate” methods of persuasion. Narratives play an important role in this game of persuasion. The use of narratives by Japanese Americans, in the form of testimony before Congress, played an instrumental role in the passage of the Redress and Reparations Act. As more groups use narratives to combat discrimination, they effectively “flesh out” the diversity within Asian America, allowing legislators and other policymakers to realize that many Asian Americans do not fit the “model minority” stereotype.

Japanese American Internment and Redress Much has been written about the internment of Japanese Americans during World War II and the Supreme Court decisions upholding the legality of the government’s actions.70 I will not repeat that discussion. Instead, I will focus on the process of breaking the silence, which, in conjunction with the work of Japanese American members of Congress, brought about redress and reparations. We were told that silence was better golden like our skin, useful like go quietly, easier like don’t make waves expedient like horsestalls and deserts.71

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Although it is difficult to determine when exactly the redress movement began, it did not receive national attention until the 1978 Japanese American Citizens League (JACL) national convention.72 In 1978, the JACL adopted redress as its priority issue and sought a “$25,000 compensation figure plus the creation of a Japanese American Foundation to serve as a trust for funds to be used for the benefit of Japanese American communities throughout the country.”73 The national attention came when Senator S. I. Hayakawa, in an interview during the convention that was carried by newspapers nationwide, called the JACL’s demand for redress “absurd and ridiculous.”74 Hayakawa’s view toward redress makes sense when you consider his attitude toward the internment, which he made clear several years before: All the people I know have a very positive attitude towards it. The ones I know in Chicago say, “We would have never gone to Chicago, if it hadn’t been for the wartime relocation. We would have all been hung along a little strip of the Pacific coast and would have never discovered San Francisco, or New York, or Chicago, Omaha, or Minneapolis, where the Japanese are scattered all over the place. So this really gave us a chance to really become Americans instead of residents of Little Tokyo in Los Angeles.”75

It should be remembered that he and his family were in Canada and had not been subject to relocation and internment. Nevertheless, the media attention that followed Senator Hayakawa’s denouncement gave Japanese Americans their first opportunity to talk publicly about an experience that many had internalized without giving voice to their anger and frustration.76 Initial reactions to the movement were mixed, both within and without the Japanese American community. Within the Japanese American “many . . . initially rejected redress for a variety of reasons. Some insisted that no amount of money could compensate them for their suffering; others saw it as a kind of welfare, while still others thought that it was best not to reopen the wounds of the past.”77 Many on the outside “were shocked that a ‘model minority’ should make such strident demands.”78 However, in 1980, the government began to respond to demands for redress with the congressional establishment of the Commission on Wartime Relocation and Internment of Civilians. The Commission held hearings in several cities at which more than 750 Japanese American internees testified about their experiences.79 This process “forced large numbers of the survivors to come to grips—often publicly at hearings or in community meetings—with their own long-suppressed feelings about their wartime experiences.”80 To many, telling their stories provided a much-needed catharsis.

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The stories also provided a compelling moral force to the claims of redress. One survivor related how he had almost destroyed his home before he was evacuated: I went for my last look at our hard work. . . . Why did this thing happen to me now? I went to the storage shed to get the gasoline tank and pour the gasoline on my house, but my wife . . . said don’t do it, maybe somebody can use this house; we are civilized people, not savages.81

Others described the conditions in the camps. Actor George Takei, best known for his role as Sulu on Star Trek, commented, “I was too young to understand, but I do remember the barbed wire fence from which my parents warned me to stay away. I remember the sight of high guard towers. I remember soldiers carrying rifles, and I remember being afraid.”82 All evacuees were given numbers; the numbering process was a particularly disheartening experience. An evacuee remarked, “I lost my identity. At that time, I didn’t even have a Social Security number, but the WRA gave me an I.D. number. That was my identification. I lost my privacy and dignity.”83 Another commented, “Henry went to the Control Station to register the family. He came home with twenty tags, all numbered 10710, tags to be attached to each piece of baggage, and one to hang from our coat lapels. From then on, we were known as Family #10710.”84 The internment left a scar on Japanese Americans and became a point of reference in their lives. A son of camp survivors remarked: When I first learned of the internment as a youth, I found that it was a difficult matter to discuss with my parents. My perception of them was that they did not speak honestly about the camp experience. Positive aspects were mentioned, if anything at all, but there always seemed to be something that was left out. My feeling was that there was much more to their experience than they wanted to reveal. Their words said one thing, while their hearts were holding something else deep inside.85

The Commission released its findings in 1982, concluding that “Executive Order 9066 and the internment that it sanctioned resulted from ‘race prejudice, war hysteria, and a failure of political leadership.’”86 The Commission also suggested five remedies, including a recommendation that an official apology be issued and that each surviving internee be given $20,000.87 The Commission’s report and recommendations as well as the work of Japanese American congressmen paved the way for the redress bill, which was passed by the House in September 1987 and by the Senate in

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April 1988.88 The government began making payments on October 9, 1990.89 Historian Sucheng Chan comments that “[t]he redress movement has been a prime example of how Asian American elected officials have worked hand in hand with community activists toward a common end.”90 But this “end” did not come about until the “model minority” broke its silence, demonstrating the power of narrative through testimony about the injustice of the internment camps and demanding that justice be done.

The Not-So-Model Minority While Japanese Americans may enjoy some apparent economic advantages compared to other Asian American groups, the reality is that many Asian Americans, particularly recent immigrants, are neither economically welloff nor politically empowered. Because the problems of these “not-so-model minorities” are rarely given voice, I will tell the stories of one such Asian American subgroup—Asian immigrant garment workers. “After sewing, laundry, cleaning and cooking, I have no breath left to sing.”91

In China, Chan Wai Fun (not her real name) worked as an office manager and sang Chinese opera. She immigrated to the United States in 1985, and, like many other Asian immigrant women who had recently arrived in America, she entered the garment industry. Like other immigrant women, Chan desperately wants to learn English in order to get a better job, but also like these other immigrants, she is trapped in her job because she does not have the time or energy to study English.92 One commentator describes the cycle of poverty reinforced by the garment and restaurant industries in Chinatown: They come over, they don’t speak English, the man gets a job in a restaurant and the woman in a garment factory down here. In a few years, they think they’ll learn English, save some money, and move out. Everyone talks about that. But . . . they’ve lived in Chinatown all ten or twenty years. They earn just enough to keep going, they’ve hardly saved at all. They don’t get exposed to English at work, they’re too tired to study at night. The job they got to tide over ends up as a life-time occupation. It’s like a vicious cycle. If they didn’t have the garment industry, or those restaurant jobs, a lot of people in Chinatown wouldn’t make it. But as long as they have those jobs, they’ll never get out of here.93

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Chan Wai Fun “works a minimum of nine-and-a-half hours a day, six days a week without benefits or overtime pay.”94 In order to hide wage violations, she and her fellow workers “keep two sets of timecards, one to punch in the time clock and one where [they] write down [their] real hours.”95 She is afraid to use her real name when interviewed because she fears reprisals from her employers. Complaining can be hazardous to one’s economic well-being: First, complaining about pay or mandatory overtime can mean facing a retaliatory dismissal and being blacklisted at other local apparel shops. Second, garment workers believe that if officials discover any labor violations in their workplaces, this will force shop owners out of business, leaving the workers themselves without jobs. Third, . . . undocumented workers fear that filing an official complaint may not only fail to improve shop conditions, but may also lead to investigations of their individual immigration statuses and possible deportation.96

Yet she is among the lucky ones in that she earns five dollars an hour for her labor.97 Many garment workers receive less than half the federal minimum wage.98 The truly unfortunate workers receive nothing at all. Four hundred fifty garment workers in San Francisco and Oakland almost learned this harsh lesson when they showed up for work on July 17, 1991, only to find their workplace doors padlocked.99 Their employers, Raymond and Yee Nor Kong, disappeared, leaving the workers with problems far greater than the immediate loss of their jobs: The Kongs had not paid them for two months, claiming that money was tight and that compensation would follow when cash became available. The Kongs had borrowed substantial sums from their employees, threatening to terminate workers who would not lend them money. Furthermore, the Kongs had ceased paying health insurance premiums, despite having deducted money from employees’ paychecks for this purpose.100

Fortunately for these workers, most of whom were Southeast Asian immigrants who spoke little English and did not understand their rights as employees, a total loss was averted. With the help of the International Garment Workers Union, the workers filed claims for lost wages and were able to prevent other creditors from seizing the Kongs’ assets before the workers were paid.101 The workers were able to recover a total of $305,000, money paid to state and federal labor officials by Byer California and The Gap, which owed that amount to the Kongs.102

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Twelve women who worked for the Lucky Sewing Company in Oakland Chinatown were not so fortunate. In May 1992, these women found themselves unemployed; without any notice, their employer, like many other garment shop owners, had closed down the sweatshop and filed for bankruptcy. These twelve workers were owed approximately $15,000 in back wages.103 Since these women knew that they had sewn dresses for San Francisco fashion designer Jessica McClintock, several of them visited the Jessica McClintock boutique in San Francisco in August. The workers were shocked to find dresses like the ones they had sewn selling for $175. One seamstress with seven years’ experience commented, “I was angry. I didn’t expect our dresses to sell for such a high price.” This worker, who was owed $3,000 for approximately two and a half months’ of work, had worked seven days a week, ten hours a day, and had not received even the $5 that she should have been paid for sewing that $175 dress.104 With the help of community activists, the workers asked Jessica McClintock to compensate them for approximately $2,000 of the $15,000.105 This figure was based on the workers’ bounced paychecks that were traced back to McClintock.106 McClintock refused, saying that she had already paid for the dresses and that under state law, she wasn’t responsible for the workers’ wages.107 A national media campaign and boycott against her goods ensued, but the garment workers remain unpaid.108 Jessica McClintock and other garment manufacturers are not at present legally liable for the labor law violations of their subcontractors because of the structure of the garment industry. The garment industry might be characterized as a chain, consisting of “the retailer, usually a department store or boutique; the manufacturer, for example, Levi-Strauss; the contractor (or ‘subcontractor’ relative to the manufacturer) or shop owner; and the garment worker.”109 In a typical transaction, the proceeds from a skirt that costs the consumer $120 is distributed along the chain as follows: “profit to the retailer is $60; profit to the manufacturer is $25; profit to the contractor is $10 at a cost to the contractor of $25, of which only $2.40 goes to the worker.”110 Manufacturers are insulated from legal liability because they characterize their relationship with contractors as independent and therefore avoid “legal responsibility for workers’ compensation, unemployment insurance and fringe benefits.”111 This system has remained firmly in place despite reform efforts. The two most recent attempts at legislative reform in California would have held manufacturers liable to some extent for labor law violations by their subcontractors and contractors. Passed by the California legislature, the bills were vetoed by Governors Deukmejian and Wil-

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son.112 I wonder what injustices might have been avoided but for the vetoes. Would we have had to wait until 1995 to learn about the seventy-one Thai garment workers who were held in virtual slavery in El Monte, California, “held in a two-story apartment complex with seven units where they were forced to work, live, eat and sleep in the place they called ‘home’ for as long as seven years”?113 Would garment manufacturers have been more diligent if they knew that they could be held liable for the abuses of the contractors they hired? The narrative accounts of the garment workers’ experiences provide moral force for bringing about such a change. Because many Asian American problems are clouded and silenced by such misperceptions as the model minority myth, change will occur only when voice is given to the stories of the disempowered. Stories such as that of Chan Wai Fun caught in a cycle of poverty, or of the workers abandoned by the Kongs, or of the woman who does not receive $5 in wages for work on a dress retailing for $175, provoke the sense of moral outrage that is often a necessary precursor for change. Law review articles detailing the abuses and arguing for garment manufacturer liability appeared in 1975, 1984, and 1992.114 Each was written or cowritten by an Asian American. But the enslavement of the Thai garment workers and the continuing abuses of wage and labor laws show that little has changed. I hope, though, that as more Asian Americans speak and “make the invisible visible”115 I will not have to read another article about this problem eight or nine years from now. I hope that there will no longer be a need for such an article.

The Common Thread Often it is easy for those of us who are relatively privileged to ignore the problems faced by many segments of the Asian American population. For example, as I sit in my office preparing for class or working on this book, I wonder what I have in common with the man who has been denied a job because of his accent.116 I wonder what I have in common with the person who cannot read the English-only ballot in the voting booth. “Not me, not me.”117

These words did not protect Nguyen Hen Van, a Vietnamese man who had been charged with theft but was tried as the defendant in a murder trial

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because the jail staff brought the wrong man from the jail cell. Even more frightening is that [t]wo testifying witnesses in the murder trial even identified Mr. Nguyen as the murderer. The actual murder defendant was Nguyen Ngoc Tieu, also Vietnamese, who was sitting in the county jail three blocks away. Even Mr. Tieu Nguyen’s lawyer, who had interviewed him for an hour only 2 weeks before the trial did not realize that the wrong man was on trial, even when Mr. Hen Van Nguyen tried to protest saying, “Not me, not me.”118

The trial was near its end when someone recognized Hen Van Nguyen as the wrong defendant and a mistrial was declared.119 Incidents such as this one call into question the reliability of eyewitness identification of Asian-American suspects by non-Asian Americans. This issue was central to a controversy involving the San Jose Police Department in 1991, which used an “Asian mug book containing 436 photographs of Asian men between the ages of 18 to 25, most of them Vietnamese” and another “mug book containing 50 photographs of mostly Samoan men.”120 At least 10 percent of the men in the Vietnamese mug book had never been arrested and an undisclosed number had never been charged or convicted. One consequence of the mug books involved a young Vietnamese man, mistakenly identified through the mug book, who was held in jail for more than three months, spent more than $20,000 in attorney fees, and lost business contracts before being acquitted by a jury. His picture had been placed in the book two years before, “merely because the SJPD [San Jose Police Department] suspected him of involvement with a different crime, although the SJPD did not even arrest or charge him in the first event.”121 Asian Americans are subject to the “they all look alike syndrome,” making them indistiguishable, often, to many non-Asian Americans.122 Besides being unable to distinguish among individual Asian Americans, whites sometimes blur the lines between all racial minorities. When I was in sixth grade, after enduring a month of name-calling by most of my classmates, I was called a “nigger” by a student. Part of me wanted to yell, “Not me, not me.” But the plea “not me, not me” provides no defense to hate. When that hate is directed not at you as an individual, but at you because of the color of your skin or the slant of your eyes, you begin to understand that any level of privilege you might attain will not protect you from hate. You are still vulnerable. I learned this at a bowling alley during my last year of law school, when a white man thought it was not right for me to be there with three white

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women. As I confronted the situation, I weighed the fact that I have a black belt in Taekwondo against the fact that a young Chinese American man had been killed three years earlier just thirty miles away in another case of mistaken racial identity. One of the assailants had commented, “I don’t like you because you’re Vietnamese. Our brothers went over to Vietnam, and they never came back.”123 I thought about the handgun that struck Jim Ming Hai Loo in the back of his head, causing him to fall on a broken beer bottle that pierced his eye and forced a bone fragment into his brain.124 I realized then that knowing self-defense does little good in a country where guns are so readily available. Incidents such as these have made me realize that no level of privilege can protect me, that no level of privilege will protect my children from hateful schoolyard name calling or the bullets of an insane, Asian-hating gunman. This last is a reference to the 1989 “Stockton Schoolyard Massacre” in which Patrick Edward Purdy fired an AK47 assault rifle in the schoolyard at Cleveland Elementary School in Stockton, California. Five Indochinese children were killed and thirty others wounded. Sixty percent of the children at the school were Southeast Asian. The national press hardly addressed the possibility that the killings were racially motivated, even after the California attorney general, John Van de Kamp, issued a report stating: “It appears highly probable that Purdy deliberately chose Cleveland Elementary School as the location for his murderous assault in substantial part because it was heavily populated by Southeast Asian children. His frequent resentful comments about Southeast Asians indicate a particular animosity against them.”125 I can try to insulate or distance myself from this by calling them isolated incidents. But because anti-Asian violence and nativistic racism exist, and to the extent that non-Asians have difficulty differentiating among Asians, any efforts to rationalize away racism only create rational lies. Upon this realization, I begin to understand that I am not so different from that Filipino man who did not get a job because of his accent or those Asian Americans who do not vote because they cannot read English-only ballots. I begin to understand that all oppression is connected and that its roots lie in the past. This oppression is not a new phenomenon; it is the tired replay of that same old deadly melody that left thirty-one Chinese miners dead and mutilated in the 1887 Snake River (Oregon) Massacre.126 Today, the massacres of Asian Americans are not always physical. Many of today’s massacres are of the spirit, because that is what racism does: it murders the spirit.127 But once the spirit goes, what is left? The time for saying “not me, not me” is over.

6 Mapping Asian American Legal Studies

A diversity of views exists within Asian American legal studies. This diversity is inevitable, and it is indeed desirable, because diversity, a term not synonymous with divisiveness, serves as a source of strength. Those engaging in Asian American legal studies will have differing theoretical commitments and methodologies, but we should still be able to speak to one another as long as we understand that we share a common goal—justice—even if we disagree about its content. The diversity of views can be seen in the different responses of Asian Americans to oppression. Although these responses may be in conflict, the very existence of a discussion moves Asian American legal studies forward. Responses to oppression may be viewed as falling within three stages: denial of difference, affirmation of difference, and liberation from difference.1 By stages, I do not necessarily imply a historical order or progression, and all three stages exist simultaneously. I set the stages out in this manner to provide a useful way of thinking about legal scholarship, and to avoid some of the divisiveness that has characterized debates among and within other groups.2 These stages may be schematized as follows: Stage One: Denial of difference. Traditional Asian American civil rights work—accepts underlying legal principles with formal equality as its goal. Stage Two: Affirmation of difference. Cultural Asian American legal studies—challenges underlying legal principles and legal institutions that may not be valid for Asian Americans because of cultural differences. Radical Asian American legal studies—challenges legal principles based on dominance theory. Stage Three: Liberation from difference. Post-structural Asian American legal studies—challenges limitations caused by categories and engages in multiple consciousness as method.

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Stage One: Denial The first stage is characterized by a denial of difference and, usually, faith in traditional civil rights work. This faith is premised on notions grounded in liberal political philosophy. The methods employed may be race neutral or race conscious. I include race-conscious methods here rather than under Stage Two because, even though race-conscious methods acknowledge race, they abandon their remedial aspects once some semblance of equality is achieved. A typical example of this is affirmative action, which is usually seen as a temporary solution or necessary evil that will be abandoned once its ends are achieved. By including race-conscious methods, I may have blurred the line between Stages One and Two, but this framework remains a useful way of talking about these issues while fulfilling the need to categorize.3 An example of a successful race-neutral effort under Stage One is the case of Yick Wo v. Hopkins, decided in 1886 by the United States Supreme Court.4 In 1880, the Board of Supervisors of the county and city of San Francisco passed an ordinance that required the board’s consent for laundry businesses to operate in wooden structures, with brick and stone buildings exempted. At the time, of the 320 or so laundries operating in San Francisco, 310 were located in wooden structures, and approximately 240 of these were operated by Chinese immigrants. Yick Wo, a native of China who came to the United States in 1861, had operated his laundry at 349 Third Street in San Francisco for over twenty years. A few months before his license was to expire in 1885, he applied for a new license. The Board of Supervisors turned him down. He was not alone—all of the two hundred other Chinese immigrants who operated laundries in wooden structures and had also petitioned the board’s permission were turned down. Of eighty or so petitions from non-Chinese persons who operated laundries in wooden structures, all were granted except one. Yick Wo, instead of paying a fine, went to jail, and from there challenged this unequal treatment. He had little success in the California courts, with the California Supreme Court deciding that the Board of Supervisors had acted within its powers and that the ordinances in question were “not in contravention of common right, or unjust, unequal, partial, or oppressive, in such sense as authorizes us in this proceeding to pronounce them invalid.”5 The fact that Chinese businessmen were singled out for different treatment was of no legal consequence to that court. The U.S. Supreme Court disagreed and reversed the decision, accepting Yick Wo’s argument that (1) although the ordinances in

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question were neutral as to race, color, and nationality, they were applied in a discriminatory fashion against persons from China; and (2) this violated the Fourteenth Amendment’s guarantee of equal protection, which applied not just to citizens but to all persons within the United States regardless of race, color or nationality.6 As a result, the race-conscious, discriminatory application of the law was held invalid and the norm of race neutrality was upheld. An example of a successful race-conscious effort under Stage One is a consent decree that set forth goals and timetables for the San Francisco Police Department to hire persons bilingual in English and Chinese.7 This is a conscious recognition of a difference that both matters and doesn’t matter. Difference (Chinese-English proficiency) matters in that the city has recognized that having employees who are bilingual in Chinese and English will aid in delivering police services and in safeguarding the public, which includes many persons with limited English proficiency. But difference here is recognized in order to make the difference not matter—persons with limited English proficiency who speak Chinese should not be denied police services because of their “difference.” Another successful race-conscious effort is the Voting Rights Language Assistance Act of 1992 (discussed in greater detail in the previous chapter), which amended the Voting Rights Act to ensure greater participation in certain districts by Asian American groups with limited English proficiency.8 By providing ballots in languages other than English in certain districts, this act tried to lessen the effect of limited English proficiency on political participation. Again, difference is acknowledged in order to minimize the effect or impact of difference. However, the tenor of the House Report on the act suggests that Congress viewed it as a temporary measure that will not be renewed once voter registration figures for Asian Americans begin to approach those of other groups.9 Thus, recognition of difference is a response to the aberration (low voter registration for Asian Americans); once the aberration disappears, difference need no longer be recognized. The norm, again, is sameness or neutrality. These examples demonstrate that Stage One focuses on formal equality and pursues either race-neutral or race-conscious remedial measures designed to deny or minimize difference. The denial of real difference in Stage One is often accompanied by a preference for assimilation as a solution to discrimination. For example, one Japanese American newspaper in 1929 urged the Nisei—second-generation Japanese Americans—to become “one hundred percent Americans” in order

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to avoid discrimination.10 This message was repeated ten years later in a 1939 editorial in the San Francisco Japanese American News (Nichi Bei) which said that the time had come to “burn a few of our bridges behind us.”11 Failure to assimilate fully, we are warned, leads to the imposition of certain penalties.12 Problems arise, though, when some people recognize the contradictions of assimilation: “I wanted to be an American. . . . I wondered why God had not made me an American. If I couldn’t be an American, then what was I? A Japanese? No. But not an American either. My life background is American. . . . [But] my looks made me Japanese.”13 Such a realization may either lead someone to try even harder to be “American,” or to reject full assimilation and accept being different. Proponents of Stage Two start from this premise.

Stage Two: Affirmation Stage Two recognizes that formal equality cannot give us what it promises. One might realize, as Neil Gotanda states, that “[a] color-blind interpretation of the Constitution legitimates, and thereby maintains, the social, economic, and political advantages that whites hold over other Americans.”14 Thus, rather than deny difference, Stage Two accepts and affirms it. In this stage, the disempowered group rejects the term “Oriental” and instead takes and reconstitutes the term “Asian American.”15 A positive identity is formulated and becomes a tool for empowerment. As such, a facet of Stage Two is its anti-assimilationist attitude. Assimilation is understood as “‘identificational assimilation’ which is the ‘development of [a] sense of peoplehood based exclusively on [the] host society . . . [and] ‘cultural or behavioral assimilation,’ a process by which ethnic group members increasingly adopt the cultural characteristics and patterns of the host society.”16 Assimilation is seen as undesirable because it “resembles the attempt to run away from ourselves, with success coming only through the negation of self, history, culture, and community.”17 An alternative to assimilation is pluralistic integration, which is based on an appreciation of American society’s culturally pluralistic nature. Integration is a problematic term, and whether you support integration or not may depend on how you define it. The ambiguous nature of integration is evident in the South African leader/martyr Steve Biko’s response to the question of integration:

102 | Mapping Asian American Legal Studies If by integration you understand a breakthrough into white society by blacks, an assimilation and acceptance of blacks into an already established set of norms and code of behaviour set up by and maintained by whites, then YES I am against it. . . . If on the other hand by integration you mean there shall be free participation by all members of a society, catering for the full expression of the self in a freely changing society as determined by the will of the people, then I am with you. For one cannot escape the fact that the culture shared by the majority group in any given society must ultimately determine the broad direction taken by the joint culture of that society. This need not cramp the style of those who feel differently.18

Pluralistic integration seems to be a good description of what Biko favored. Many people would like to think of the United States as a melting pot, that diverse groups enter the United States and evolve into unhyphenated Americans. But racial minorities understand this to be a lie. Justice Thurgood Marshall commented, “The dream of America as the great melting pot has not been realized for the Negro; because of his skin color he never even made it into the pot.”19 The same has been true for Asian Americans, who remain perpetual foreigners regardless of how many generations one’s family has lived in the United States. Pluralistic integration recognizes the melting pot as a fundamental contradiction at the heart of American exceptionalism, that anyone can become American even as the welcome mat is removed and racial minorities are denied full and equal membership in the family that is America. The characteristics of Stage Two are evident in cultural Asian American legal studies, which emphasizes cultural differences as a method to criticize legal principles and legal institutions that fail to take into account these differences. I use the term “cultural Asian American legal studies” to indicate similarities in theme, not necessarily in method, with the work of cultural feminists. One cultural feminist, Robin West, criticizes liberalism and critical legal studies for ignoring what she calls “the central insight of feminist theory of the last decade . . . [which is] that women are ‘essentially connected,’ not ‘essentially separate,’ from the rest of human life, both materially . . . and existentially, through the moral and practical life.”20 If there are “essential” differences based on the cultures of Asian America, it is important to examine their moral and political and legal implications. An example of work in this area is Carolyn Jin-Myung Oh’s article, “Questioning the Cultural and Gender-Based Assumptions of the Adversary System: Voices of Asian American Law Students.”21 In her article, Oh

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examines the cultural background of some Asian American law students and their perceptions of the adversarial system. She contrasts Western notions of individuality and self-sufficiency with the greater emphasis on family in most Asian and Pacific American cultures. She examines the possible effects of Confucian principles “which emphasize specific roles and proper harmonious relationships among people in family and society. Because harmonious interpersonal relationships are so highly valued, direct confrontation is avoided whenever possible. Being indirect or talking around the point is a significant part of the communication style of Asian groups.”22 While the scope of her article is limited to responses of Asian American and Caucasian law students to the potentially alienating legal system and their perceived roles within it, her focus on cultural explanations is an example of the kind of work that a cultural Asian American legal studies might engage in.23 Further work might be done to examine the different communication styles of certain Asian American groups that may affect, for example, their credibility as litigants and witnesses. Another area ripe for further investigation is the cultural defense. How should the judicial system deal with an immigrant woman from Japan who learns of her husband’s infidelity and tries to kill herself and her children? What is just?24 We must take care, though, not to allow cultural defenses to further the oppression of women. For example, following the Clarence Thomas confirmation hearings, Orlando Patterson, an African American professor at Harvard University, argued that “even if testimony about Thomas’s gross pornography-laden harassment was actually true, Thomas was justified in lying about it given that such behavior was recognizable (and apparently acceptable) to Black women as simply a style of ‘down home courting.’”25 However, as Kimberlé Crenshaw points out, Patterson’s “cultural defense effectively deflects criticisms of sexist attitudes and practices that subordinate Black women and other women of color in our communities.”26 In the same way, a Chinese American man who kills his wife because of her marital infidelity should not be permitted the excuse of culture.27 However, we can use differences between Asian cultures and Western cultures to question the assumptions of Stage One’s liberal political theory, which celebrates the notion of an individuated autonomous self. As mentioned earlier, many Asian philosophies have at their center the concept of no self.28 Without a metaphysical “self ” as a locus for rights, liberalism and rights talk lack coherence. Nevertheless, Stage Two of Asian American legal studies recognizes that formal equality cannot be denied to Asian Americans. Thus, Stage Two may also employ the race-neutral and race-conscious

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methods of Stage One without sharing its commitment to liberal political philosophy. Cultural Asian American legal studies must avoid the pitfall of essentialism present in cultural feminist theory.29 We must not generalize the cultural differences of certain Asian American groups or individuals in a way that excludes those who do not fit those characteristics. Thus, for example, when authors write about Confucian principles, they should be careful to note that for many Asian American groups, such as Filipinos, South Asians and many Southeast Asians, Confucian principles may not be a significant part of their cultures. In addition to the essentialist critique, there is a further danger in accepting difference, because difference, once recognized, can serve as the basis for discrimination. This is, after all, exactly what discrimination is—differential treatment based on difference. Radical Asian American legal studies operates at this juncture by focusing on differences in power, particularly on how inequality of power has constructed and legitimated racial subordination. This label, like cultural Asian American legal studies (and its connection to cultural feminism), was chosen for its affinity with radical feminism. Radical Asian American legal studies focuses on racial dominance and power to critique the current political-legal system. Its focus thus contrasts with traditional Asian American civil rights work, which treats difference as an illusion or something to get beyond; and with cultural Asian American legal studies, which celebrates difference.

Stage Three: Liberation We see, then, that though there is power in affirming the category “Asian American,” the category is also limiting, especially because it remains defined in terms of the dominant group. As long as our identity is defined oppositionally or in contradistinction to others, we are still enslaved to a degree. That the term “Asian American” can be an oppressive categorization is the starting point of the third branch of Asian American legal studies— poststructuralism—which deconstructs the category “Asian American,” emancipating its members from its limits. Only when we are free of it can we be free to give ourselves our own identity. Only in this way can we be free to embrace our identity rather than having our identity thrust upon us from the outside. The question becomes whether Asian American legal studies can survive this poststructural deconstruction of the category “Asian American.” If a

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full poststructural critique deconstructs all categories, including race, then once the category “Asian American” is deconstructed, how can it continue to serve as a useful category? This critique misunderstands deconstruction. Part of the problem lies in the word “deconstruction,” which implies a breaking down or breaking apart. Deconstruction does no such thing. It reveals things to be historically situated and socially constructed, but this realization in no way changes the current construction of the category except to remove any foundational claims.30 Deconstruction simply reveals the potential for change; a category could be constructed differently in the future, or perhaps our present could be reconstructed differently by revising or reinterpreting our past. This is why legal historiographical study will be important for Asian Americans to reconstruct our past and to take our proper place in the history of this country and its legal institutions. In no way, though, does deconstructing the category “Asian American” change the fact that I am an Asian American. My context has constructed me as Asian American. This understanding of contextual situatedness enables poststructural Asian American legal studies to use multiple consciousness as a method of understanding and participating in Stages One, Two, and Three without inconsistency. It is able to do this because it understands law as a contextual practice that has certain rules. Even while it criticizes and tries to undermine those rules, it can engage in civil rights struggles because it understands that removal of oppression is beneficial, even if it must come in stages. Mari Matsuda’s article, “Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction,” is an example of multiple consciousness at work.31 She says at the end of her article, “I have written to persuade readers of good will to adopt legal rules and ethical positions that promote linguistic pluralism. I have used existing legal doctrine, traditional liberal theory, and new critical theories in this effort.”32 She recognizes the inherent contradictions, the internal inconsistencies of doing all three, yet she is able to do it because an Asian American legal studies has a pragmatic face. It has a multiple consciousness that can assume various guises. It assumes these guises with a final goal in mind: liberation. Tremendous diversity exists within the category “Asian American.” And tremendous diversity exists among the disempowered. We must remember, though, that it is only through solidarity that we will one day be free to express our diversity. A photo in AsianWeek highlights the distance that we have yet to travel. The photo is of a demonstrator at a protest against proposed immigration legislation. The demonstrator, an elderly man with

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Asian features, holds a large placard stating: “I AM AN AMERICAN.”33 This photo reminded me of newsreels of civil rights marches of the 1960s in which Black American men held placards stating: “I AM A MAN.” In both cases, the demonstrators were asserting a claim to dignity that American society had denied them by refusing to recognize and treat them as fellow Americans and fellow human beings. In both cases, the demonstrators were asserting their right to feel at home in their own country. Each of us will take different paths as we struggle to make a home for ourselves, our families, and our communities. Whatever path we choose, we must fill our lives with passion for what we do. The passion will not come from the drumming of native blood within us. It will come from the compassion and commitment we feel for the communities we choose as our own. For those choosing Asian America, perhaps this map of Asian American legal studies will help us through our disagreements over methods and strategies to see our common goals. And as we struggle together, let us remember what Sharon Hom told the Asian American Bar of New York when they honored her for her work: “Growing up, loving to read books, I wanted to be a writer because I was convinced this was the way one could change the world, create visions of a better world, better yet, create those worlds on the written page.”34 These words demonstrate for me what is possible and what we should strive for, that it is within our power to create better worlds on the written page, worlds that we have the power to make real.

Bridge Introduction to Part III

Part III addresses the move from identity politics as we know it to the construction of political identities. It takes seriously the antiessentialist critique and the problems it poses for identity politics. I argue that we should move away from identity politics as we know it and work toward developing political identities based on shared political commitments. In chapter 7, I examine one especially divisive issue, affirmative action, and show how Asian Americans are being manipulated by neoconservatives who claim to be interested in protecting Asian Americans from discrimination but are in fact interested in preserving white privilege. Chapter 8 is an essay in three parts: Racial Cross-Dressing, The End of Innocence, and Who’s Afraid of Tiger Woods? The first part discusses racial cross-dressing to open up the space for a conscious manipulation of the boundaries of race. The second part sets forth in more detail how we might move from identity politics to political identities, using the goal of a radical and plural democracy as an organizing principle. The chapter ends with a look at Tiger Woods and the implications of multiracialism as we prepare to enter the new millennium.

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7 Reverse Racism! Affirmative Action, the Family, and the Dream That Is America

We should transform “reverse racism” from a curse to an injunction (Reverse racism!). —David Roediger, Towards the Abolition of Whiteness (1974)

I am a product of affirmative action. Thus, to imagine a world without affirmative action would require that I imagine a world without me, something that I am not inclined to do. I am reminded of a cartoon showing the philosopher Descartes saying, “I think, therefore I am.” The second frame shows him musing, “I think not, therefore . . .” The last frame is blank. I find it ironic that so many affirmative action babies can advocate against the policy responsible for their very existence. And although I disagree with much of what Stephen Carter says, I agree with him that we must invert the negative meaning attributed to the term “affirmative action baby,” and that in order to do so, we must embrace the term rather than reject it.1 Let me repeat, then, without shame that I am a product of affirmative action. And I refuse to imagine my own nonexistence. When confronting those who would abolish affirmative action on the basis of race and/or gender in education, employment, and contracting, my initial facetious response is to say, “Sure. But only if you get rid of the affirmative action policies that are putting black and, increasingly, Latino men in prison for long periods of times.” One particularly egregious statistic was produced by the Georgia criminal justice system, where 99 percent of those in prison for life under its second-drug-offender statute are African Americans.2 Results such as this do not occur without affirmative action, which takes place in the form of selective enforcement, selective prosecution, and

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selective sentencing.3 So if we are going to get rid of affirmative action, I say that we should start in the criminal justice system. I have yet to persuade the forces against affirmative action to join me in this move to abolish affirmative action in our criminal justice system, but I use this notion of affirmative action in our prisons to do two things: first, to begin contesting our stock understandings of affirmative action; and second, to see how committed the anti-affirmative action forces are to a broad vision of social justice. People often mean very different things when they talk about affirmative action. To help clarify the discussion, David Oppenheimer offers five possible, nonexclusive meanings that might come under the rubric of affirmative action: (1) nondiscrimination; (2) outreach and recruitment; (3) self-examination; (4) preference programs; and (5) quotas.4 Although these are useful in clarifying the debate, the lack of engagement that often mars conversations on affirmative action comes more from the different sides having vastly different notions of fairness or merit that inform their construction of “affirmative action.” These different notions stem in part from differing attitudes toward what the appropriate temporal framework is for understanding affirmative action.5 The forces that would save affirmative action characterize it as necessary to equalize opportunities for racial minorities and women.6 Informed by a certain notion of fairness located within an expansive temporal framework, this view allows consideration of the history of racial and gender oppression in addition to ongoing racial and gender discrimination. The forces that would destroy affirmative action offer a competing notion of fairness located within a narrow temporal framework that allows consideration only of the immediate parties to the transaction in question. A typical statement of this view takes the following form: The third answer to the embarrassment of present statistical [racial] disparity . . . is not . . . present, or even recent, racial discrimination in law faculty hiring. Rather, as plaintiff argues, the likely cause is general, diffuse social discrimination in the increasingly distant past that has made law practice (and thus law teaching) a white male bastion. That fact, of course, does not justify visiting the sins of the fathers on the sons; present-day racial discrimination against particular individuals is no remedy for past social discrimination.7

Antiaffirmative action forces characterize affirmative action as reverse discrimination or reverse racism and tell the story of the innocent white male.

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This story has captured the public’s attention in such a way that affirmative action is suffering what might be termed “death by anecdote.” The most gruesome death by anecdote that I have had the misfortune to witness took place during the 1990 United States Senate race in North Carolina between Jesse Helms, the white incumbent, and Harvey Gantt, the African American challenger. One “Helms campaign commercial displayed a white working class man tearing up a rejection letter while the voice-over said, ‘You needed that job, and you were the best qualified. . . . But it had to go to a minority because of a racial quota.’”8 I recall seeing a political cartoon after the election that showed a brown hand crumpling up an application for the United States Senate with a caption that said, “You were better qualified, but . . .” However, this cartoon came too late. Gantt had already lost the election. We see here that narrative is not the sole province of those who engage in outsider jurisprudence to further a progressive social agenda.9 Those who would save affirmative action must come up with some pretty good stories of our own if we wish to avoid this death by anecdote. But as we frame our stories, we must pay attention to the temporal dimension because the choice of temporal framework is often determinative in deciding what is “fair.” The recent appellate opinion in Hopwood v. Texas illustrates this point.10 The appellate court in this case chose a narrow temporal framework in which the actors were limited to the University of Texas School of Law, Cheryl Hopwood and the other white plaintiffs who had been rejected, and the African American and Hispanic admittees. Given this framework, the story told is of a law school that has not had de jure segregation since 1950.11 Further, according to the appellate court, “Any other discrimination by the law school ended in the 1960s.”12 After the appellate court relegated the law school’s overt discriminatory practices safely to the past, the court concluded that the law school could not have discriminated against presentday African American and Hispanic applicants. With no present-day minority victims of racial discrimination, the only victims then are the innocent white plaintiffs who have been subject to reverse discrimination.13 A narrow temporal framework and the limitation of the relevant institutional actor lead to the result that there will never be any present-day effects of a law school’s past discrimination that affects present-day minority applicants, especially as we move further, temporally, from de jure segregation. In a narrow temporal framework, the only visible “discrimination” is perpe-

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trated by the school (or employer or governmental entity) against white applicants. Although this “discrimination” seems unfair, it is only unfair within this circumscribed narrative. Change the assumptions and background conditions, and what is unfair changes. The struggle over the appropriate temporal framework becomes important as each side tries to control the stories that inform the public’s stock understandings of affirmative action. Are the anti-affirmative action forces motivated by a narrow vision that allows them to see injustice only when it affects the so-called innocent white male, or are they interested more broadly in seeking racial justice? Are they committed to reversing racism in the United States? My doubts about their commitment come from my sense that the attack on affirmative action is not an isolated phenomenon. I locate it within a larger broad-based movement organized against immigration and multiculturalism. If we are to understand the current struggle over affirmative action, we must place it within the larger social context of what might be termed a national identity crisis. America is under assault—both literally and figuratively. Or so the antiimmigrant, antiaffirmative action, antimulticulturalism forces would have you believe.14 It is literal in the sense that the invasion by and proliferation of black, brown, and yellow bodies pose a literal threat to the continued vitality and viability of America. This sense of threat is captured beautifully in a statement made by the head of Stop Immigration Now: “I have no intention of being the object of ‘conquest,’ peaceful or otherwise, by Latinos, Asians, blacks, Arabs or any other group of individuals who have claimed my country.”15 Changes in demographics have created the specter of a coming majority of color that threatens to eclipse the numerical white majority. This perceived threat is so great that white Americans already believe that the country has been overrun by racial minorities, that white Americans constitute less than half the population, when in fact, they are almost three quarters of the population.16 Given the color-ful vision of white Americans, I do not think we are ready yet for color-blindness. In addition to the literal, the assault is figurative in the sense that the very meaning of America is said to be at stake. The assault, both literal and figurative, threatens America both as nation-state and nation-form. Hence the cry to take America back, and, as my friend Sharon Hom says, to take back the world, to make everything, everywhere, America.17

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This desire to take back America might be called the nativist’s dream of return to a fictive America past, a Paradise Lost that might be regained if quick action is taken. It is political action that will take us there, through careful policing of national and institutional borders. These policing efforts are taking the form of eliminating affirmative action, closing our borders, making English our official language, and controlling the curriculum. The attack on affirmative action, understood in this broader context, leads me to doubt that those who cry reverse discrimination or reverse racism are committed to reversing racism in the United States. The return to an America past is not just a return to a former racial order; it is a return to a former gender order. The struggle over affirmative action is also operating to reinscribe patriarchy through a return to the traditional family, thus eclipsing gender. Racial minorities and feminists are colored as the enemy within who threatens the cultural identity and national sovereigny of the “true” Americans.18 And insofar as Derrick Bell’s interest-convergence theory is correct, with certain civil rights gains furthering the Cold War imperatives of the United States, the end of the Cold War and interest divergence may help to explain some of the civil rights setbacks we are enduring.19 While some may regard with nostalgia this earlier time of an America past, when America was America and men were men and women were women, a return to the old domestic order is not the America of which I dream. I first encountered affirmative action in college when I met my freshmanyear roommate. After saying hello, his first words were, “Don’t look in my closet. You’ll see all sorts of preppy clothes in there. You’re probably not into that type of thing.” He was right, but I wondered what tipped him off—my Asian features, or my black concert T-shirt from Bruce Springsteen’s Born in the U.S.A. tour. He, on the other hand, was attired as befitting a third- or fourth-generation Exeter/Princeton student, which included his Granddad’s or Great-Granddad’s Princeton Class of Nineteen-twenty-something cap. This was my first encounter with an affirmative-action baby, what is termed in admissions parlance a legacy admit. He would, of course, never admit to being an affirmative-action baby, despite what I thought was rather obvious evidence. Because of this first encounter, I have always thought of affirmative action as including legacies, athletes, musicians, the geographically diverse,

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and countless other “plus” categories that admissions committees regularly utilize. A recent investigation by the Los Angeles Times revealed that the University of California system seems to have another “plus” category, what I call the “U.C. Regents’ Friends and Family Plan.” A number of the U.C. Regents who voted to do away with any preferential treatment on the basis of race and/or gender “have privately used their influence to try to get their relatives, friends, and children of business partners into UCLA, in some cases ahead of better qualified applicants who were turned away.”20 Although not all the attempts were successful, it appears as though a number of efforts resulted in dramatic turn-arounds, where applicants headed for rejection were admitted.21 If this is not affirmative action, then I do not know what is. Yet I am often surprised when people find my conception of affirmative action to be impermissibly expansive, that awarding “pluses” to legacies, athletes, musicians, and the geographically diverse is different from awarding pluses on the basis of race and/or gender. Does it make a difference that because of the history of racial oppression, legacies are disproportionately white?22 (Even geographic diversity tends to benefit whites disproportionately.23) The counterargument, of course, is that whites are disproportionately benefited despite the fact that they are white and not because they are white. However, this distinction between despite and because falls apart once the temporal frame is expanded. Whites gain a disproportionate advantage because exclusionary policies on the basis of race ensured that elite institutions would be populated by whites whose descendants are now benefiting.24 This last statement assumes that white alumni have white children, an assumption based on the fact that even with the increase in the rate of white interracial marriage, in 1987, 99 percent of white Americans were married to other whites.25 When evaluating the role of legacies in the affirmative action debate, one should, as Stanley Fish admonishes us, consider the source.26 The preference given to legacies has been described as “the oldest form of affirmative action, dating from the efforts to exclude Jews from elite colleges in the 1920s,”27 and legacies might be described as the “real affirmative action babies.”28 In the 1920s, in the face of increasing Jewish enrollment at their schools, Ivy League administrators considered two options: quotas for Jewish students or preferences for alumni children. Harvard at first attempted to use ceilings, but this provoked serious criticisms; instead, they went to a preference for sons of alumni to squeeze out Jewish applicants. Other selec-

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tive schools adopted similar policies because none wanted to become a “dumping ground for Jews,” and they wanted “[t]o avoid being labeled ‘Jewish institutions.’”29 We can hear the echo of this fear of Jewish institutions in the jokes you may have heard about MIT standing for Made in Taiwan, or UCLA as the University of Caucasians Lost among Asians, or UC Irvine as the University of Chinese Immigrants. These jokes contain within them anxiety over the character of these institutions that has led to affirmative action of a different sort, “negative action” directed against Asian Americans.30 This negative action is motivated by the notion that there can be “too many Asians.”31 My second encounter with affirmative action also took place when I was in college, when some Asian American student groups made charges against the Princeton administration that Asian American applicants had more difficulty being admitted than Caucasians. These charges were also made against other highly selective colleges, including Harvard, Yale, Stanford, UC Berkeley, and UCLA.32 The Office for Civil Rights (OCR) conducted investigations at various schools, including Harvard. Their investigation at Harvard concluded that Asian Americans were not being discriminated against. Although Asian American applicants who were admitted did on average have stronger academic credentials (insofar as SATs and grades have meaning) than their white counterparts, much of that difference was attributed to preferences given to alumni children and athletes. Both of these groups at Harvard were largely white. OCR concluded that no invidious or intentional discrimination against Asian Americans was proven.33 The result was that the policy first instituted to keep Jews out had by now become a time-honored tradition, creating an entitlement that could not be disturbed. The entitlement, coincidentally, was disproportionately held by whites. This finding by OCR at Harvard might be contrasted with the admission policy at Stanford University, which seemed implicitly to acknowledge bias against Asian Americans, that “the overrepresentation of whites among special groups such as alumni legacies, faculty/staff children, and athletes did not work to account for the differential rate of admissions except in a relatively minor way.”34 Thus, Stanford could not rely on “legitimate” preferences as did Harvard to explain the lower admission rates for Asian Americans.

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The same can be expected at public schools where alumni preferences do not play the same role as in the Ivies.35 Unless some other factor(s) can be identified, lower admission rates for Asian American applicants is evidence of bias. And in some instances, there is evidence of the “smoking gun” variety such as a confidential UCLA memo that stated: “The campus will endeavor to curb the decline of Caucasian students. . . . A rising concern will come from Asian students and Asians in general as the number and proportion of Asian students entering at the freshman level decline—however small the decline may be.”36 In 1984, Berkeley, in rather unsubtle fashion reduced the number of Asian Americans admitted by 20.9 percent from the previous year.37 Berkeley adopted a two-tiered system in which “[s]tudents in the first tier are admitted solely on the basis of scholastic criteria . . . while students in the second tier are evaluated both on scholastic and nonacademic criteria.”38 The resort to more subjective criteria echoes the move made by Harvard in 1926 to weigh subjective characteristics such as “character, personality, and promise,” which were then used to keep Jews and Catholics out.39 Under the new system at Berkeley, Asian American applicants did well in Tier 1, but Caucasian students were admitted at disproportionate rates over Asian Americans in Tier 2. Nonacademic criteria operated against Asian Americans through outright or unconscious bias. Despite evidence such as this, white students who were never meant to be the beneficiaries of modern-day affirmative action continue to be admitted with weaker academic credentials than Asian Americans who are denied admission.40 Imagine a television advertisement depicting an Asian American student crumpling a rejection letter from Berkeley or UCLA with a voice-over: “You were better qualified, but they had to give your seat to a white student.” The problem is that conservatives have already created a different voice-over, where Asian American students are being told that their seats are going to lesser qualified blacks and Latinas/Latinos.41 Divide and conquer at its best or worst, depending on your perspective, Asian Americans are pitted against blacks and Latinas/Latinos as if there are only a certain number of seats available for minority students. This is true only if a certain number of seats are reserved for white students. Through negative action against Asian Americans, whiteness becomes a diversity category meriting a “plus” in many admissions processes, exposing that the merit and fairness rationales are a smoke screen for what is really being protected—white entitlement.42

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Though this section focuses only on the admission of Asian Americans to elite institutions of higher education, the relationship between Asian Americans and affirmative action is much more complicated. First, care must be taken to acknowledge the tremendous diversity within the Asian American community such that the relative success of Chinese Americans, Japanese Americans, and Korean Americans must not obscure the very different situation of other Asian American groups. Second, although certain Asian American groups have enjoyed a fair amount of success in admission to elite educational institutions, all Asian American groups face continuing discrimination in the work place.43 Understood in this way, affirmative action is necessary for certain Asian American groups even in the context of elite school admissions, and it is necessary if Asian Americans are to overcome the discrimination, often taking the form of a glass ceiling, that is operating to prevent our advancement. Meanwhile, Asian Americans are told by conservatives that affirmative action hurts us. Yet even as efforts are being made to dismantle affirmative action for racial minorities, no efforts are made to dismantle the preferences given to whites that hurt Asian Americans. This is the context within which Asian Americans must decide if we will let ourselves be used as pawns in the struggle over affirmative action. At a conference on the American Dilemma and the Rehnquist Court, Richard Kahlenberg, who claimed to be sympathetic to the need for affirmative action, argued that because race is so volatile, the pragmatic approach to saving affirmative action in some form would be to abandon race and move to preferences on the basis of class or socioeconomic disadvantage.44 One overlooked fact is that under such an affirmative action scheme, whites (and perhaps Asian Americans) would be its primary beneficiaries. I am being generous when I say “overlooked.” Elsewhere, Kahlenberg finesses this issue by suggesting that “class preferences will disproportionately benefit people of color in most contexts—since minorities are disproportionately poor.”45 However, in the context of admissions, the data suggest otherwise. As the dean of Stanford Law School admits, if “socioeconomic status [were] the only basis for granting preferences, a school would likely have to enroll a number of disadvantaged white students—perhaps somewhere between two and eight—to enroll one disadvantaged African American student.”46 Even Kahlenberg notes: “[W]hen you control for income, African American students do worse than white and Asian students on the SAT— due in part to differences in culture and linguistic patterns, and in part to

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the way income alone as a measurement hides other class-based differences between ethnic groups.”47 It is unclear, then, how a class-based affirmative action program would take these differences into account in such a way that whites (and perhaps Asian Americans) would not be its greatest beneficiaries. The result, with the preference for legacies left intact, is that the primary beneficiaries of preferences would be whites. In theory, this would be constitutionally permitted because this preference is given to whites despite the fact that they are white and not because of their whiteness. In practice, this would be a disaster for racial minorities. In many ways, the panel discussion was typical of many debates on affirmative action, including the fact that no one had mentioned gender. Disturbed by this omission, I asked the panelists to address the fact that affirmative action had been racialized when most studies showed that the primary beneficiaries of affirmative action had been white women.48 One of the speakers responded: “I’m opposed to affirmative action on the basis of gender.”49 I wanted to ask the moderator to declare his answer nonresponsive and to direct the panelists to answer the question, but time had expired and no answer was forthcoming. Instead, I was left to puzzle over why the debate has been racialized in such a way that gender dropped out of the picture. What are we to make of this fact that the primary beneficiaries of affirmative action have been white women? Where were their voices? It seems that a natural coalition might develop between white women and women of color based on shared gender oppression, or between white women and people of color based on more broad-based societal oppression. There have been attempts by those opposing the so-called California Civil Rights Initiative to gain support from white women.50 These efforts have largely failed. According to polls, approximately 65 percent of white women are in favor of the so-called Civil Rights Initiative that would do away with race and gender affirmative action.51 At first blush, one might wonder at this position which seems to go against their self-interest. But this depends on how one characterizes the self. Is the self a racial self? Or a gendered self? We might ask, as did Catharine MacKinnon in a different context, “What is a white woman anyway?”52 These questions are avoided or masked by the invocation of family. White women have brothers and sons, and making a heterosexist assumption, they have husbands. Insofar as affirmative action is blamed for white men not getting jobs or admission to schools, and insofar as these white

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men are seen as their husbands, brothers, and sons, this means affirmative action is hurting the families of white women—“unless affirmative action advocates can convince these women that the policy that helped them individually will not hurt their family’s economic security, white women cannot be counted on at the polls.”53 Patricia Ireland, president of the National Organization for Women, says that “initiative backers are playing on people’s worries about their jobs by arguing that affirmative action is the reason ‘a lot of white men are unemployed . . . not because of corporate downsizing, automation, computerization, all the reasons there has been a shift in the economy.’”54 Affirmative action becomes a scapegoat in precisely the same way that conservatives cast affirmative action as the cause of lower admissions rates for Asian Americans. Family can be invoked here without explicit reference to race—in 1987, 99 percent of whites were married to other whites.55 Because of statistics such as this, an appeal to family does the work of an explicit call to racial solidarity. Further, there is a national dimension such that it is not only about the American Family but is about the Family that is America. In the same way that most white Americans remain prejudiced against allowing racial others into their families,56 this same prejudice may also manifest itself in the form of anti-immigrant sentiment to prevent entry of racial others into the Family that is America.57 This reconfiguration of American national identity around family echoes an earlier reconceptualization of collective national identity in familial terms that began in the 1920s.58 This conjoining of family and nation took place during a national identity crisis that America was undergoing. In addition to various sectional and class conflicts, the North was struggling with immigrants from eastern and southern Europe, the South was struggling with blacks, and the West was struggling with immigrants from Asia. Family was invoked to mediate these conflicts. It was no accident that D. W. Griffith’s Birth of a Nation, which presaged the trend identified by Michaels, ends with a double marriage, the brother and sister from the (white) Northern family marry the respective sister and brother of the (white) Southern family.59 The brothers and sisters achieve through their literal union the symbolic reunification of North and South. The rebirth of America is achieved, and family becomes the site of American identity. Family in this context has a specific racial content: it is white. The result is that “[i]nsofar as the family becomes the site of national identity, [American] nationality becomes an effect of [white] racial identity.”60 This recon-

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ceptualization allows a policing of the boundaries of the national community along racial lines through an invocation of family.61 In the same way that the (white) family must be protected from the predations of the transgressive sexuality of men of color, the proper racial order of the Family that is America must be preserved. It was no accident that anti-immigration sentiment reached a fever pitch during this period.62 Nor is it an accident antiimmigration sentiment directed against Asian and Latino immigrants has reached a fever pitch today. And it is not a coincidence that a nationalized form of family—for example, the Contract with the American Family—has made a return to the political scene. One difference, though, is that today’s return to the traditional family located within the nation-space of America is not just a return to an earlier racial order; it embodies a return to traditional gender roles. Understood in this way, the appeal to family in the context of the antiaffirmative action movement is an attack on feminism. But unlike the backlash against feminism in the 1980s as documented by Susan Faludi,63 this attack is much more subtle. In theory, because white women have been the primary beneficiaries of affirmative action, they should be the primary targets of the antiaffirmative action forces. However, the vote of white women was considered crucial for the so-called California Civil Rights Initiative.64 So how do you avoid gender conflict, especially in light of continued discrimination against women? The key here is the relationship between family and patriarchy. Because patriarchy operates in such a way that women earn only 71 cents for every dollar a man makes,65 the economic interests of white women may be better served if their husbands, brothers, and sons do well. Instead of gender solidarity between white women and women of color, and gender conflict between white women and white men, white racial solidarity is achieved through an appeal to family. Never mind that white women are to sacrifice their own opportunities and those of their sisters and daughters. The attack on affirmative action takes place within a larger context of antiimmigration and antimulticulturalism sentiment. I see this sentiment as part of an attempt to return to an (imaginary) America past, to restore America to its former glory. A return to this former glory entails a return to a former racial and gender order. However, an explicit call for white racial solidarity to protect white male entitlement is not a politically viable strategy. Instead, the innocent white male as victim is created by cries of reverse racism or reverse discrimination. The innocent white male is then used in

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conjunction with an explict invocation of family. Together, these operate as an implicit call to white racial solidarity and mediate the potential gender conflict between white women and white men. I developed this thesis through three encounters I have had with affirmative action. One very salient fact revealed to me through these encounters is that there are an awful lot of affirmative action babies out there. And I would venture to say that most of these affirmative action babies are white. The move to abandon preferences for racial minorities while leaving intact preferences that primarily benefit whites is not about fairness or merit at all. It is about protecting white entitlement. The move to abandon preferences on the basis of gender, when discrimination against women remains rampant, is also not about fairness or merit. It is about protecting patriarchy. Put the two together, and it is an attempt to return to an America that once was. But turning back the clock is a poor way to step into the future. When my father wanted to pursue a master’s degree in English in the United States, Howard University gave him the opportunity. His year there was a tumultuous one. In addition to the race riots/rebellions that were sweeping the nation, there was much other unrest on the Howard campus. During one period of unrest, the ROTC building on campus was burned down in protest of the war in Vietnam. I am not sure what he saw in all of this. Sometimes, I wonder why he sent for my mother, my brother, and me from Korea. I am sure that he was motivated to some extent by the American dream, but I think there was more. He had a dream of America, not what it was, but what it could be. And that is the America that he wanted for us. It is the America that he taught us to work toward. Instead of a return to an America past, I urge us to dream of an America future where conditions permit us really to pursue the American dream. If we are ever to get there, we must, as David Roediger reminds us, transform “reverse racism” from a curse into an injunction: Reverse racism! It will be difficult, but let us work together to make real this dream that is America.

8 One America An Essay in Three Parts

[C]an we become one America in the 21st century? —President Bill Clinton, June 21, 1997 In the eyes of government, we are just one race here. It is American. —Justice Antonin Scalia, in Adarand Constructors, Inc. v. Pena

Racial Cross-Dressing I’m not Latino. But I could be. One feature of Latino identity is that Latinos may be of any race. I can imagine a different family history that would have placed my ancestors as laborers in Latin America or the Caribbean.1 I can imagine a secondary migration in the Asian diaspora that would then have brought them to the continental United States, and I can imagine the various identity crises they might have undergone. I can imagine intermarriage as that which took place between Punjabi Indian immigrants and Mexican Americans.2 The children would not look like me, but perhaps they would not be so different. You cannot tell by my features that I am not Latino. In what context could a person who looks like me claim a Latino identity? This question assumes that at some level, there will be resistance to such an identification. This resistance may be internal as well as external. But by invoking the history of Chinese contract laborers in Latin American and Caribbean countries, I open up the space for such an identification, even if I don’t actually claim to be Latino. But what if I were to make that claim? What are we to make of claims to seemingly inapposite identities? Can a man claim a lesbian subject position? Can a white Euro-American woman

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claim a Latina subject position? Would they simply be confused over their racial/gender/sexual positions? Francisco Valdes explains that he has, with careful qualifications, at times “claim[ed] inclusion in the lesbian category,” doing so “to poke at the sex/gender essentialisms that rigidly and absurdly confine us all.”3 He goes on to argue that “[g]ender-bending is important and (sometimes) rewarding political work.”4 But while gender-bending— and for that matter, race-bending—may indeed “do” important political work, we must approach such performances with caution. They may represent instances of appropriation—as in misappropriation—just as easily as they may represent claims to solidarity that may then operate as a basis for collective political action. Stated differently, moments of cross-dressing contain within them oppressive as well as emancipatory possibilities. The difficulty lies in telling them apart. Elaine Showalter examines the oppressive possibilities in her brilliant essay, “Critical Cross-Dressing; Male Feminists and the Woman of the Year.”5 She examines the film Tootsie, which stars Dustin Hoffman playing Michael Dorsey, a failing actor whose aspirations to stardom are realized only after he dresses in drag and transforms himself into Dorothy Michaels. As Dorothy Michaels, he becomes a television star and a role model for women.6 Indeed, one film critic, Molly Haskell, calls “Dorothy ‘the first genuinely mainstream feminist heroine of our era.’”7 Showalter comments that Michael Dorsey’s success as Dorothy comes primarily, the film suggests, from the masculine power disguised and veiled by the feminine costume. Physical gestures of masculinity provide Tootsie’s comic motif of female impersonation. Dorothy Michaels drops her voice to call a taxi, lifts heavy suitcases, and shoves a hefty competitor out of the way. Dorothy’s “feminist” speeches too are less a response to the oppression of women than an instinctive situational male reaction to being treated like a woman. The implication is that women must be taught by men how to win their rights. In this respect, Tootsie’s cross-dressing is a way of promoting the notion of masculine power while masking it.8

Showalter then moves from the film to the recent involvement of certain male critics in feminism, calling this male feminism a form of “critical crossdressing.” She observes: If some of them are now learning our language, all the better; but there is more than a hint in some recent critical writing that it’s time for men to step in and show the girls how to do it, a swaggering tone that reminds me of a

One America | 125 recent quip in the Yale Alumni Magazine about a member of the class of 1955, Renee Richards: “When better women are made, Yale men will make them.”9

Both examples show the darker forms that cross-dressing may engender. More ambiguous is the story about Micki, a postoperative male-to-female transsexual who joined a women’s support group. In telling this story, Elvia Arriola invites us to “[i]magine then, the turmoil created in this ‘womanspace’ when one day a tall, quiet woman who had shown up regularly at meetings for several weeks, suddenly came out to the group as a transsexual female. Not only that, she was a transsexual female who identified as a lesbian.”10 How do we make sense of “her” identities, both as “woman” and as “lesbian”? Arriola writes that some members of the support group felt threatened, saying that “she was nothing but a fake,” that her “self-confident demeanor betrayed that although she had given up her male identity, hints of her socialization as a privileged white male clearly remained,” and that the sex-change operation left “his sexual orientation unscathed.”11 But this controversy over whether Micki is a “woman” and “lesbian” begs the question: what do “woman” and “lesbian” mean? When that question is asked, we see that Micki’s “impersonation” brings about for her interlocutors what Marjorie Garber calls category crisis, “a failure of definitional distinction, a borderline that becomes permeable, that permits border crossings from one (apparently distinct) category to another.”12 The question then for them (and for us) is how to negotiate this crisis. We might, as did some members of the support group, decide that once a man, always a man, and call for strict policing of that boundary.13 Or we might, as did others in the support group, allow the line to be drawn differently so that it might include a person like Micki.14 But if we are going to redraw boundaries, we must do so with “a critical awareness of how borders have been (and continue to be) systematically policed, and for whose ideological benefit and material profit.”15 What are the consequences of drawing the line differently? In the context of racial passing, Elaine Ginsberg writes that there is a positive potential of passing as a way of challenging those categories and boundaries [of race and gender]. In its interrogation of the essentialism that is the foundation of identity politics, passing has the potential to create a space for creative self-determination and agency: the opportunity to construct new identities, to experiment with multiple subject positions, and to cross social and economic boundaries that exclude or oppress.16

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Although I empathize with the women who felt threatened by Micki’s presence in the group, the attitude “once a man, always a man” is indicative of the sort of essentialism that is politically limiting and potentially self-defeating. This is not to deny the power and efficacy at times of deploying a strategic essentialism.17 Nor is this to deny the power and efficacy at times of deploying a strategy of separatism.18 But recognizing Micki’s claim to a subject position as “woman” and “lesbian” allows for “agency” in a way that permits the construction of open political identities. Understood in this way, claims to seemingly inapposite identities might be sensible as claims to political identities, and not to essential ones. They disrupt the inertia of essentialist notions of identity and lay the groundwork for developing a collective political identity. We might compare these identity claims with an episode of racial crossdressing that occurred in the climactic scene of Spike Lee’s Do the Right Thing.19 Near the end of the film after fire has been set to Sal’s Pizzeria, a group of blacks and Latinas/Latinos turn to the Korean grocery store across the street. One member of the crowd, ML, tells the Korean immigrant grocer that he is next. The grocer responds, “I black.” ML explodes, telling him to open his eyes, saying “I’m black!” The grocer repeats, “I black. You, me, same. We same.” The crowd is incredulous and laughs. What could this Korean mean when he says that he is black? Is he acting out of self-interest? Or is there more? The Korean grocer’s claim to blackness is problematized by the real-life conflicts between some Asian American shopkeepers and some members of African American communities served by the shops.20 Conflicts such as this may make it difficult to imagine solidarity between blacks and Koreans, but it is precisely this difficulty that makes it important to explore, to see if there is some common political identity that might be created. We might examine the development of a “black” Afro-Asian identity in Britain. Kobena Mercer comments: When various peoples—of Asian, African, and Caribbean descent—interpellated themselves and each other as /black/ they invoked a collective identity predicated on political and not biological similarities. In other words, the naturalized connotations of the term /black/ were disarticulated out of the dominant codes of racial discourse and rearticulated as signs of alliance and solidarity among dispersed groups of people sharing common historical experiences of British racism. The empowering effect of the transformed metaphor, which brought about a new form of democratic subjectivity and agency into being, did not arise out of a binary reversal or a closed anti-white

One America | 127 sensibility, but out of the inclusive character of Afro-Asian alliances which thus engendered a pluralistic sense of “imagined community.”21

If we read the Korean grocer’s claim to blackness in Do the Right Thing against the grain of the stock story or master narrative of conflict, and read it as a sign of alliance or solidarity, we create new possibilities.22 Perhaps it is possible in the United States for dispersed groups of people to share common historical experiences of American racism to form an imagined community. Perhaps a common claim to “blackness” in American society can be a starting point for forging a people-of-color alliance. Whether “blackness” in the United States becomes a basis for forging such an alliance depends on how open “black” is, and whether Asian Americans and other people of color are willing to accept a “black” identity or subject position. Transgressive moments such as when the Korean grocer says “I black,” may help create the space for such an alliance. These examples contain within them potential successes and failures for a variety of boundary transgressions loosely collected under the term “crossdressing.” In the context of race, racial cross-dressing already contains within it the notion that there is such a thing as racial dressing, that racial identity already contains within it aspects of performativity or agency. This is implicit in Spike Lee’s film, Do the Right Thing, when one African American character, Buggin’ Out, tells another African American character, Mookie, “Stay black.” Because Mookie cannot change biology, such a statement must refer to a politico-cultural notion of “blackness.” It also acknowledges agency as to identity. To acknowledge agency is necessarily a rejection of essentialism. For the admonition “Stay black,” to make sense, there is no biological essence that makes Mookie “black” in the sense meant by Buggin’ Out. This means that you can be biologically black and not be black in the politico-cultural sense; and conversely, if racial cross dressing is indeed possible, you don’t need biology to be black.23 Perhaps all it takes is a common identification with and willingness to participate in the struggles of people who are not ourselves. Through this struggle, the borders that divide us will become blurred, as we become them, and they become us.

The End of Innocence, or, Politics after the Fall of the Essential Subject Stuart Hall, writing in the context of British cultural studies, describes the demise of the essential black subject as the end of innocence.24 We have

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seen in feminist theory and in critical race theory the debate about essentialism, along with various recuperative proposals such as intersectionality, multiple consciousness, positionality, and strategic essentialism.25 Rather than revisit those discussions, I raise the possibility of constructing new subject positions in an attempt to move us beyond the difference divide, to move us from identity politics as we now know it to political identities. In this section, I ask whether we can imagine a world where the utterance of the Korean grocer would not be greeted with incredulity. Is there a way to understand his claim that he is black as part of the logic of Hall’s pronouncement? Earlier, I argued that the current racial paradigm is inadequate and that traditional civil rights work and critical race theory must take into account the different experiences of different groups. As each oppressed group struggles to assert its place in America, it is necessary to recuperate it from its marginal position. This is often accomplished through an embrace of a new, positively formulated identity. In the context of persons of Asian descent, there was a moment in history when some student activists at UCLA in 1968 held an Are You Yellow? conference. After protests by Filipino Americans who did not consider themselves “Yellow,” and after a brief flirtation with “Oriental,” activists settled on “Asian American.”26 This new Asian American consciousness was accompanied by a struggle to regain history, a struggle to tell our own stories and to articulate our claim to rights in American society. It is through this process that we have become, and are becoming, Asian American. This is an ongoing process. While this exploration of differences remains important and is necessary to move us beyond the inherent limitations of the current black/white racial paradigm, my purpose in this chapter is different: how to account for differences while allowing us to participate in one another’s struggles. Coalition building has been advanced as a strategy to achieve this goal.27 The need for coalitions is an acknowledgment of the democratic process. It is also an acknowledgment that minorities have been unable to gain any real political voice, despite such legislation as the Voting Rights Act.28 In this sense, coalition building can be seen as a strategy of resistance. Coalition building has gained a new importance as demographic projections make it possible now to imagine a majority of color.29 This news has generated mixed reactions. In some communities, the coming majority of color exists as a specter, the new bogeyman that strikes fear into the hearts of whites afraid of no longer being the majority.30 In other communities, it

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has engendered new hope, hope that a democratic process that had allowed white dominance to reign supreme for most this nation’s history might now be used, not for what might be fair turnabout, but to achieve finally what had long been promised. This project, radical democracy, offers a way beyond coalitional politics. Coalitional politics, growing out of identity-based, interest-group politics, is an expansive form of identity politics. Insofar as you can articulate a common identity that results in common interests (or common interests that result in a common identity), coalitions are strong. But with strength comes weakness—coalitions form and dissipate depending on specific political exigencies. For example, with English-only or immigration restrictions, Asian Americans and Latinas/Latinos sometimes finds themselves in coalition against whites and blacks. With affirmative action, Latinas/Latinos and blacks sometimes find themselves in opposition to whites and Asian Americans. We must consider, then, how effective is a politics that uses identity as a central organizing principle? To what extent is identity coextensive with common interests? What does it mean when exit polls in California reveal that 47 percent of Asian Pacific Americans and 23 percent of Hispanics voted in favor of Proposition 187?31 We see, then, that identity (in its essential form) is a poor proxy for common interests. Identity is both overinclusive and underinclusive as an organizing principle for politics. This realization is the logical extension of Stuart Hall’s end of innocence. The end of innocence means that we must take seriously the insights of antiessentialists/constructionists. Identity, with its essential moorings, is inadequate for the task at hand. Instead, subject positions, as described by Chantal Mouffe, offer a better anchor: Within every society, each social agent is inscribed in a multiplicity of social relations—not only social relations of production but also the social relations, among others, of sex, race, nationality, and vicinity. All these social relations determine positionalities or subject positions and every social agent is therefore the locus of many subject positions and cannot be reduced to only one. . . . Furthermore, each social position, each subject position, is itself the locus of multiple possible constructions, according to the different discourses that can construct that position.32

This definition allows us to recognize the discursivity of subject positions, that they exist as discursive formations.33 It is within this discursive space that I propose the articulation of a new subject position, one that comes

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with political commitments. In this chapter, I will use “person of color,” although “black” has greater historical resonance. At present, the term “person of color,” as a pan-minority designation, has little political content. However, it need not be that way. The way that black consciousness was articulated by Steve Biko—not based on skin pigmentation but rather on attitudes and commitments,34 the way that “black” has been constructed in Britain as an Afro-Asian identity,35 and the way that “queer” has been disarticulated from its negative meanings and rearticulated as a positive political identity36 can also fill “person of color” with political content and political commitments such as the following: Anti-subordination; Political, economic, and cultural empowerment; Uncompromising opposition to hetero-patriarchy; Reconstruction of the meaning and language of race; Self-criticism and self-reflection; Group-criticism and group-reflection; Learning and openness to our histories; Egalitarian deliberative participatory democracy; Willingness to sacrifice and struggle; and Contextualized judgment and responsibility.37 Rather than essentializing aspects of personhood, these commitments define the contours of a consciousness. To say that you are a person of color becomes a political statement, a political act. And when someone like a Clarence Thomas seeks our support, as a person of color, we will be in a position to say, “No, you’re not.” Angela Harris, though, reminds us of the work to be done: There are no ‘people of color’ waiting to be found; we must give up our romance with racial community. If any lesson of the politics of difference can yet be identified, it is that solidarity is the product of struggle, not wishful thinking; and struggle means not only political struggle, but moral and ethical struggle as well.38

It will be a struggle to establish a “people of color” solidarity in the service of a progressive agenda, a project that might be termed radical democracy.39 Chantal Mouffe explains:

One America | 131 The progressive character of a struggle does not depend on its place of origin . . . but rather on its link with other struggles. The longer the chain of equivalen[t]s set up between the defense of the rights of one group and those of other groups, the deeper will be the democratization process and the more difficult it will be to neutralize certain struggles or to make them serve the ends of the Right. The concept of solidarity can be used to form such a chain of democratic equivalen[t]s.40

In order to set up this chain of equivalents, we must develop a greater appreciation of the interconnectedness of different forms of oppression. For “people of color,” we can begin with the ideology of white supremacy which permitted the genocide of Native Americans, the enslavement of Africans, the conquest and dispossession of Mexicans, and the exclusion of Asians. But we must not stop there if we are to deepen the democratic chain of equivalents. How are race and gender connected? And sexual orientation? Class? A progressive agenda that does not take these connections seriously will fail along all three dimensions. It will fail politically, morally, and ethically. The climactic scene in Spike Lee’s Do the Right Thing is fraught with possibility. The largely black and Latina/Latino crowd gathered in front of the Korean immigrant’s store is angry, and the shopkeeper has been told that his store is next in line to be torched. He responds by saying that he is black, just like them. What could he possibly mean? Perhaps he was motivated purely by self-interest, hoping to save his store from the fate that befell Sal’s Pizzeria. It is also possible that he was making a stronger claim, a claim of solidarity. I think it is important to note that when the body of Radio Raheem was taken away by the police, the Korean grocer followed the squad car, pounding it with his fist. Yet when he said that he was black, the onlookers responded with laughter, incredulity, a response that I believe was shared by many viewers. However, even this incredulity can be constructed in different ways. Rather than a simple rejection of the Korean grocer’s statement, perhaps their incredulity was a reflection of their shock that someone who was not black would claim to be so. Who would do such a foolish thing?41 The failure of the Korean’s statement to resonate more strongly both with the crowd that had gathered in the film and with movie audiences has to do with the fact that no chain of equivalents had been established between the experiences of Korean immigrants and African Americans. We are unable to understand because of the way the color line has been drawn.

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It is time, though, to leave innocence behind. The demise of the essential black subject teaches us that the color line is not something that exists in nature waiting to be discovered. The color line is something that is created by human actors; it is a site of contestation. I would draw the color line differently to establish a chain of equivalents that would deepen our identification with one another, strengthen our solidarity. I see this as the challenge of radical democracy—to redraw the color line, understanding identity as political, not essential. The violence that is so pregnant in that climactic scene is averted when Coconut Sid tells his friend, ML, “The Korean is all right, he’s all right.” We need more moments like this.

Who’s Afraid of Tiger Woods? April 1997 marked the fiftieth anniversary of the year that Jackie Robinson broke the color barrier in major league baseball. While I mourned the fact that such little headway was made in fifty years, the mainstream media celebrated it as an important moment in the nation’s narrative of racial progress.42 It was, in some ways, a bittersweet remembrance as the nation was forced to recall the dark days of racial segregation. But the pain or guilt was softened because those dark days were represented in grainy black-andwhite newsreels, relegated to the safety of the past. The past can then be contrasted with the present, where sports, at least on the playing field, represent one of our most highly integrated institutions,43 along with the military. Though there are still some pockets of resistance, such as in golf, even here we had Tiger Woods’s spectacular victory at the Master’s, celebrated as another breach of the color barrier.44 The victory shows that even in the highly discriminatory world of golf, hard work and merit are the keys to success. In this American allegory of racial progress, Tiger Woods, like Jackie Robinson, did not engage in the discourse of victimhood; neither asked for affirmative action.45 Instead, through their exceptionalism, they overcame racial barriers. When Jackie Robinson and Tiger Woods are put forward as role models, what exactly are we being told? I am reminded of the way Asian Americans and Cuban Americans have been constructed as model minorities, held up to show what can be achieved through hard work and to disprove the limiting effects of racism.46 Other minorities and poor whites are told to be like the “models”—if they do not succeed, it must be their fault. They should stop engaging in the dis-

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course of victimhood. Nothing is said, though, of the discursive formation known as the “innocent white male.”47 Sports are presented as the model democratic institution where all can participate, limited only by the extent of one’s abilities (read: content of one’s character). This was the message of a feature film about Jackie Robinson in which he also starred.48 The film opens with the following voiceover: “This is the story of a boy and his dream, but more than that, it is the story of an American boy and a dream that is truly American.”49 Similarly, in the closing scene, the voice-over states: “Yes, this is the Jackie Robinson story. But it is not his story alone, not his victory alone. It is one that each of us shares, a story, a victory that can only happen in a country that is truly free, a country where every child has the opportunity to become president or play baseball for the Brooklyn Dodgers.”50 Playing major league baseball is likened to being president of the United States. Not only can every child dream of both—every child has the opportunity to achieve both. Yet because the White House, Congress, the Supreme Court, and corporate board rooms in no way resemble the playing fields (or America for that matter), they cannot operate as models for racial progress. Instead, that role is left for sports, which have become the symbol of success in our nation’s narrative of racial progress. When I see mainstream media celebrations of Jackie Robinson and Tiger Woods, I worry about how this affects other discourses, other institutions. How does this affect our efforts to preserve affirmative action? Why isn’t education like sports? How do we resist the nation’s false narrative of racial progress that makes our efforts to overcome racial subordination more difficult? Instead, we see different communities struggling over the body of Tiger Woods.51 Is he African American? Asian American? Thai? Chinese? Native American? Why have certain communities become so invested in his racial affiliation or identity? What is to be gained? Should we let him “just be who he is” as he has requested? As a multiracial figure, does he represent the deracinated national body? Is the multiracial Tiger Woods the anti-racist hero of the next millennium?52 Tiger Woods forces us to ask the “race” question. The fear is that multiracial figures like Tiger Woods are complicating the already overburdened racial taxonomy in the United States. This fear may account for the apparent conflict between “[t]hose advocating . . . [for official recognition of multiracialism on the Census who] are largely multiracial persons, parents in interracial unions who advocate on behalf of their mixed-race children,

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and multiracial advocacy organizations” whereas “[t]hose opposed to such changes are largely representatives of traditional civil rights groups.”53 How are we to negotiate this tension? Are we ready to have such a discussion? But ready or not, multiracial persons are here (and actually, they have been here for a long time). Fear about the complexity of the discussion should not make us shy away from the tough questions. As we explore the tough questions, we should get a few things straight. It would be naïve to believe that multiracialism operates solely in the realm of the descriptive. Like any other racial descriptor, it is always already political. By this, I mean no more and no less than that there are no literal white, black, etc., persons. If our racial categories are not naturally existing phenomena, then these categories have been created or constructed by human agents and human institutions through specific and diffuse enactments of power. I suppose that it is possible to imagine a world where “race” might simply be a descriptor without having the sort of political and material effects that it now has. However, this would require a different history, one that has yet to be written or lived. Within our imperfect world, multiracialism may come to embody a new race-neutral position. It is neutral to race because it does not ask what your “component” races are; all it asks is that you be mixed. A multiracial category might include: Thirty to seventy percent of all African Americans. . . . The majority of Native Americans. . . . Virtually all Latinos. Virtually all Filipinos. A significant portion of Whites. . . .54 Multiracialism may constitute a new iteration of colorblindness where color will not matter because (most) everyone will be full of color. If careful attention is not paid to the political consequences of the multiracial category as it is constructed, it may become even more difficult to see and name the ongoing material impact of race on people’s lives. Is Tiger Woods the antiracist hero of the next millennium? The hope he has given can be seen in the following apocryphal story: “With each improbable victory, more is heard, more is understood. A group of same-race children are running through the playground pretending to be professional athletes. A boy of mixed race walks up and, for the first time, joins them. I can play,

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he says. I can be Tiger Woods.”55 We are told that “[s]ociety is slowly being changed,” that “Tiger Woods is changing it,” that he is “[c]hanging the face of modern America to approximate, finally, the real face of modern America.”56 And when we wonder what the real face of America is, or who this phenomenon is, we are told, “He is us.”57 This is in some ways a story of the second coming. Here is a young man who has given us his multiracial body to save us from our racialized selves, who redeems us from our racist history to allow us to step forward into the new millennium, cleansed of our racial sins. One America. Now and forever. Is Tiger Woods the antiracist hero for the next millennium? As much as I might like the answer to be yes, the answer, I fear, is no. Race in this country is a much more complicated puzzle than can be answered by the body of a young man. Perhaps we are left with President Clinton’s question, “[C]an we become one America in the 21st century?” Only time, and our efforts, will tell.

Postscript This Ain’t Oz

Toto, I’ve a feeling we’re not in Kansas anymore. —Dorothy in The Wizard of Oz

In The Wizard of Oz, Dorothy delivers the above unforgettable line upon discovering that she has left behind the black and white drudgery of Kansas and has entered a world that is bursting with color.1 The bewilderment with which she views this bright new world echoes the bewilderment with which America is confronting the changing demographics where Latinas/Latinos and Asian Americans constitute the fastest-growing racial groups in the country. But bewildered or not, America must realize and reconcile itself to the fact that it is, and always has been, full of color. America cannot afford to dream of race in black and white. To do so is to ignore the history of America where the terrain of race has always been more complex. It ignores the dispossession and systematic genocide of Native Americans. It ignores the conquest of parts of Mexico and the forced incorporation of Mexicans into America. It ignores the exclusion of Asians at the border and the way we came to embody a negative American identity against which a positive American identity could be formulated. It ignores the way different groups have been pitted against one another as each struggled to find its way and home in America. These struggles have resulted in periods of temporary stability, uneasy equilibria that mask the smoldering ashes that can explode into minor and major conflagrations. In 1982 in Detroit, these smoldering ashes exploded when an Asian American man was having a good time in a topless bar. While I don’t condone his objectification of women, he didn’t deserve what his good time got him. Two white autoworkers, whose identities as straight, white, working-class American men were somehow undermined by Vincent

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Chin’s presence and enjoyment of the show, engaged in a brutal act of racial-sexual policing. To them, Chin was not and, through their actions, never would be part of the family that is America. He could never be part of their family because the border and the color line were inscribed on his body, marking him as a foreign and racial Other against which they could know themselves and feel secure in their white American maleness. In 1992, these smoldering ashes exploded in various cities following the acquittal of the four white policemen who happened to be caught on tape beating the black Rodney King. Much of the violence in protest of the acquittal was done to the chant, “No justice, no peace.”2 Despite the later convictions of two of the police officers, it is unclear that justice has been done or that there has been a real resolution of the racial tensions underlying the violence. A calm of sorts has descended, but the question is not whether there will be another fire but rather where and when it will erupt next. America cannot afford to continue to indulge its pathological impulse toward nativistic racism that has been such an important part of its history. Walls come with costs that are not distributed evenly. (Walls also come with hidden costs to those who purport to find shelter and comfort within them.) The negative costs for legal and extralegal enforcement of the border weigh most heavily on those who are not white, those who carry the border on their features and are marked as suspect. Injustice can go unanswered for only so long. Remember, “No justice, no peace.” Why should those with power share it? Why should those who have benefited and continue to benefit from entrenched racism, sexism, and heterosexism give up anything? One might appeal to their sense of justice and fair play. While such an appeal has moral force, it has seldom succeeded. Derrick Bell has observed that progress for racial minorities has tended to occur when it has coincided with the interests of those in power.3 It seems then that racial justice, if it is to occur, must be articulated as advancing the interests of those in power. Is fear of the fire next time enough? If the history of this nation is any indication, fear of the fire will lead to greater repressive mechanisms. We should not be surprised that prison construction and private security are among today’s fastest-growing industries. What are the limits to public and private use of force? What is the role of law to be in mediating the violence that casts its shadow across the land? Much is made today of the idea of color-blindness, with the ghost of Martin Luther King, Jr., invoked to provide legitimacy. But the idea that law is to be neutral to race is over two hundred years too late. To institute

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color-blindness now is to render law incapable of redressing the sedimentation of legalized racial injustice. To institute color-blindness now without reparations is to legitimize hundreds of years of violence wreaked on bodies of color. It would leave intact accumulated white racial privilege and would attempt to cover up, without healing, the racial sores that have been produced by the racist history of this nation. Wounds that don’t heal have a way of festering. Sometimes they explode.4 Back to fire. Perhaps we shouldn’t shy away from fire. Perhaps fire will help us to forge a new America. We should remember that in nature, fire is part of the process of renewal. The increased and increasing presence of people of color might be thought of as a fire that has changed and is changing the face of America. It has precipitated a national identity crisis, a crisis that will produce the America of the next millennium. America is not a melting pot. It is fire. A fire that burns bright, burns long, burns hot. It is fire that has produced Asian Americans. As Simone de Beauvoir said of women, Asian Americans are made, not born. And as Asian Americans are made, America is remade. We’re here. And we’re not going away. If we continue dreaming in black and white, we’re going to miss out on a whole lot of color. In The Wizard of Oz, a cyclone carries Dorothy away from the black and white drudgery of Kansas and she lands in Oz, a place that is bursting with (techni)color. She has grand adventures there, only to wake up back in Kansas, disappointed at first to be back in that black and white world. The color-ful adventure was only a dream. Or was it? Her home, even though represented in black and white, turns out to be full of local color. It took Dorothy a cyclone and a bump on the head to come to that realization. I wonder what it will take for us to get there. In the meantime, although we are definitely not in Kansas anymore, we have yet to reach Oz.

Notes

notes to introduction 1. Calvin Coolidge, America’s Need for Education 56 (1925), quoted in Walter Benn Michaels, Our America: Nativism, Modernism, and Pluralism 3 (1995). 2. Elaine H. Kim, Asian American Literature: An Introduction to the Writings and Their Social Context xii (1982). 3. Judith Butler, Gender Trouble: Feminism and the Subersion of Identity 14 (1990). 4. E. San Juan, Jr., The Predicament of Filipinos in the United States: “Where are you from? When are you going back?” in The State of Asian America: Activism and Resistance in the United States 205 (Karin Aguilar-San Juan ed., 1994). 5. The phrase “imaginary homelands” is Salman Rushdie’s. See the title essay in Salman Rushdie, Imaginary Homelands: Essays and Criticism 1981–1991, at 9 (1991). 6. Countee Cullen, Heritage, in The New Negro: Voices of the Harlem Renaissance 250 (Alain Locke ed., 1992). 7. Michaels, supra note 1, at 123 (citing Arthur M. Schlesinger, Jr., The Disuniting of America 46 (1992)). 8. Id. at 123–24 (quoting Cullen). 9. Cullen, supra note 6, at 251. 10. Michaels, supra note 1, at 124. 11. Yuji Ichioka, The Early Japanese Immigrant Quest for Citizenship: The Background of the 1922 Ozawa Case, 4 Amerasia J. 1, 17 (1977), reprinted in 2 Asian Americans and the Law: Japanese Immigrants and American Law 397, 413 (Charles McClain ed., 1994). 12. Id. at 18. 13. Yen Le Espiritu, Asian American Panethnicity: Bridging Institutions and Identities 1–18 (1992). 14. Neil Gotanda, Toward Repeal of Asian Exclusion: The Magnuson Act of 1943, the Act of July 2, 1946, the Presidential Proclamation of July 4, 1946, the Act of August 9, 1946, and the Act of August 19, 1950, in Asian Americans and Congress: A Documentary History (Hyung-chan Kim ed., 1996).

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140 | Notes to Introduction 15. Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism 6–7 (Rev. ed. 1991). 16. Under Western Eyes: Writings from Asian America (Garrett Hongo ed., 1995); Reading the Literature of Asian America (Shirley Geok-lin Lim & Amy Ling eds., 1992); The State of Asian America, supra note 4. 17. Roger Daniels, Asian America: Chinese and Japanese in the United States since 1850, at xiv (1988). 18. Chantal Mouffe, The Return of the Political 4 (1993). notes to chapter 1 1. Ozawa v. United States, 260 U.S. 178 (1922); United States v. Thind, 261 U.S. 204 (1923). 2. Immigration Act of 1924, ch. 190, 43 Stat. 153 § 13(c). 3. See Neil Gotanda, “Other Non-Whites” in American Legal History: A Review of Justice at War, 85 Colum. L. Rev. 1186, 1188 (1985) (reviewing Peter Irons, Justice at War (1983)) (exploring “foreignness” as a “previously unexamined dimension of the relationship between race and law”). 4. Peter Fitzpatrick, “We know what it is when you do not ask us”: Nationalism as Racism, in Nationalism, Racism and the Rule of Law 3, 23 (Peter Fitzpatrick ed., 1995). 5. Walter Benn Michaels, Our America: Nativism, Modernism, and Pluralism 6 (1995 (quoting Kallen, Culture and Democracy in the United States 200 (1924; reprint 1970)). 6. See generally Arthur M. Schlesinger, Jr., The Disuniting of America: Reflections on a Multicultural Society (1991); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 Minn. L. Rev. 269 (1992); Kevin R. Johnson, The New Nativism: Something Old, Something New, Something Borrowed, Something Blue, in Immigrants Out! The New Nativism and the Anti-Immigrant Impulse in the United States 165 (Juan F. Perea ed., 1997); Natsu Saito, Alien and Non-Alien Alike: Citizenship, “Foreignness” and Racial Hierarchy in American Law, 76 Or. L. Rev. 261 (1997). 7. Patricia Williams, The Rooster’s Egg: On the Persistence of Prejudice 65 (1995). 8. See Rodolfo Acuna, Occupied America: A History of Chicanos 18-20 (3d ed. 1988); Suzanne Oboler, Ethnic Labels, Latino Lives: Identity and the Politics of (Re)Presentation in the United States 33 (1995). 9. D. W. Griffith, The Birth of a Nation (1915). 10. John Hope Franklin, Birth of a Nation: Propaganda as History, in John Hope Franklin, Race & History: Selected Essays 1938–1988, at 10, 15 (1989). 11. My reading of The Cheat stems from my viewing of the film, informed by

Notes to Chapter 1 | 141 the readings of the film by Sumiko Higashi, Cecil B. DeMille and American Culture: The Silent Era 101–12 (1994); and Gina Marchetti, Romance and the “Yellow Peril”: Race, Sex, and Discursive Strategies in Hollywood Fiction 14–32 (1993). 12. Higashi, supra note 11, at 110. 13. Marlon Brando played an Okinawan comic in The Teahouse of the August Moon (1956); Katherine Hepburn played a young Chinese peasant who becomes a guerilla fighter in Dragon Seed (1944). 14. Marchetti, supra note 11, at 21. 15. Id. 16. Id. at 14. 17. Script of The Cheat, quoted in Higashi, supra note 11, at 108. 18. Higashi, supra note 11, at 108. 19. Moving Picture World, 2384, Dec. 25, 1915, quoted in Marchetti, supra note 11, at 10. 20. Marchetti, supra note 11, at 15. 21. Higashi, supra note 11, at 101 (citation omitted). I viewed the 1918 version. 22. Michael P. Rogin, Ronald Reagan, The Movie and Other Episodes in Political Demonology 194 (1987) (citation omitted). 23. Id. at 217 (citations omitted). 24. This intertitle was penciled into the original script by DeMille. Higashi, supra note 11, at 108. 25. Rogin, supra note 22, at 219 (quoting Griffith). 26. Id. at 197. 27. For some critical explorations of whiteness, see Theodore W. Allen, The Invention of the White Race, Volume One: Racial Oppression and Social Control (1994); Ruth Frankenberg, White Women, Race Matters: The Social Construction of Whiteness (1993); Ian Haney Lopez, White by Law: The Legal Construction of Race (1996); David Roediger, Towards the Abolition of Whiteness (1994). 28. John Higham, Send These to Me: Immigrants in Urban America 40 (rev. ed. 1984); Roediger, supra note 27, at 184. 29. Roediger, supra note 27, at 184. 30. Id. at 66. 31. Id. at 65. 32. Ronald Takaki, A Different Mirror: A History of Multicultural America 151 (1993). 33. Alexander Saxton, The Indispensable Enemy: Labor and the AntiChinese Movement in California 118 (quoting Kearney) (citations omitted). 34. Minutes of the Fifteenth Annual Convention of the United Mine Workers of America, January 18–27, 1904, 151, quoted in Yuji Ichioka, Asian Immigrant

142 | Notes to Chapter 1 Coal Miners and the United Mine Workers of America: Race and Class at Rock Springs, Wyoming, 1907, 6 Amerasia J. 1, 12 (1979). 35. Ichioka, supra note 34, at 1–4. 36. Cf. Roger Sanjek, Intermarriage and the Future of the Races in the United States, in Race 103, 113 (Steven Gregory & Roger Sanjek eds., 1994). 37. Id. at 113–15. 38. Higashi, supra note 11, at 102. 39. Herbert P. Le Pore, Prelude to Prejudice: Hiram Johnson, Woodrow Wilson, and the California Alien Land Law Controversy of 1913, 61 S. Cal. Q. 99, 100 (1979), reprinted in 2 Charles McClain, Asian Americans and the Law: Japanese Immigrants and American Law 265, 266 (1994). 40. Rogin, supra note 22, at 195. 41. Michaels, supra note 5, at 10 (“The Jew in Dixon’s Trilogy of Reconstruction is a negrophobic American hero, a supporter of the Klan.”). 42. Roediger, supra note 27, at 187–90. Earlier, Roediger comments on “the extent to which white workers defined themselves by negation—as not Black and not Chinese.” Id. at 66. 43. This third film differs from the first two in that it is a documentary. For excellent discussions of the documentary form as it pertains to this film, see Paula C. Johnson, The Social Construction of Identity in Criminal Cases: Cinema Verité and the Pedagogy of Vincent Chin, 1 Mich. J. Race & L. 347, 419–24 (1996); Charles Musser, Film Truth, Documentary, and the Law: Justice at the Margins, 30 U.S.F. L. Rev. 963 (1996). 44. For an excellent cultural critique of Japan bashing, see chapter 3, Bashers and Bashing in the World, in Masao Myoshi, Off/Center: Power and Culture Relations between Japan and the United States 62 (1991). 45. Sucheng Chan, Asian Americans: An Interpretive History 177 (1991). The men were indiscriminate in their use of epithets, also calling him a “Chink.” American Citizens for Justice, Confidential Report on the Vincent Chin Case to the U.S. Dep’t of Justice, Civil Rights Division, 3 (June 28, 1983) (copy on file with author). 46. U.S. Comm’n on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s, at 25 (1992). 47. Chan, supra note 45, at 177. 48. Kaufman, quoted in Christina Choy & Renee Tajima, Who Killed Vincent Chin? (1988); Johnson, supra note 43, at 401. 49. See American Citizens for Justice, supra note 45. 50. In an earlier article, I did not include this information in my discussion of the Vincent Chin case, in part because I did not know what to do with that part of the story. See Robert S. Chang, Toward an Asian American Legal Scholarship, 81 Cal. L. Rev. 1241, 1252–53 (1993). This is true of most accounts of this case. See,

Notes to Chapter 2 | 143 e.g., Pat Chew, Asian Americans: The “Reticent” Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 21 (1994); Jerry Kang, Note, Racial Violence against Asian Americans, 106 Harv. L. Rev. 1926, 1928 (1993); U.S. Comm’n on Civil Rights, supra note 46, at 25. This also holds true in most accounts in standard Asian American history texts. See, e.g., Chan, supra note 45, at 176 (fight began in nightclub); Ronald Takaki, Strangers from a Different Shore: A History of Asian Americans 481 (1989) (fight began in bar); contra Roger Daniels, Asian America: Chinese and Japanese in the United States since 1850, at 342 (noting that the fight began in a topless bar but not analyzing it further). This is not to say that I or any of the other scholars mentioned here were being disingenuous; instead, we were using the example of Vincent Chin to make a limited point about the nature of racist hate violence. My point here is that the example of Vincent Chin lends itself to more complex analyses. 51. His stepson, Michael Nitz, had recently been laid off but was collecting unemployment benefits and, according to his girlfriend, was not unhappy about the situation. Who Killed Vincent Chin? 52. David Roediger refers to this psychological gain from shared white privilege as the wages of whiteness. See Roediger, Wages of Whiteness: Race and the Making of the American Working Class (1989); see also Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1741–45 (1993). 53. See Charles J. McClain, In Search of Equality: The Chinese Struggle against Discrimination in Nineteenth-Century America 12–29 (1994) (discriminatory taxes); Dudley O. McGovney, The Anti-Japanese Land Laws of California and Ten Other States, 35 Cal. L. Rev. 7 (1947); Terrace v. Thompson, 263 U.S. 197 (1923) (upholding Washington’s Alien Land Law); Porterfield v. Webb, 263 U.S. 225 (1923) (upholding California’s Alien Land Law); Su Sun Bai, Comment, Affirmative Pursuit of Political Equality for Asian Pacific Americans: Reclaiming the Voting Rights Act, 139 U. Pa. L. Rev. 731, 751 n.95 (1991) (discriminatory licensing requirements); Entry Denied: Exclusion and the Chinese Community in America, 1882–1943 (Sucheng Chan ed., 1991) (immigration restrictions); Haney Lopez, supra note 27 (naturalization restrictions); Charles J. McClain, Tortuous Path, Elusive Goal: The Asian Quest for American Citizenship, 2 Asian L.J. 33 (1995) (same). notes to chapter 2 1. Hiroshi Motomura, Whose Alien Nation? Two Models of Constitutional Immigration Law, 94 Mich. L. Rev. 1927, 1944–45 (1996). 2. See, e.g., Frances Fukuyama, The End of History and the Last Man (1992); Jean-Marie Guehenno, The End of the Nation-State (Victoria Elliot trans., 1995).

144 | Notes to Chapter 2 3. See David J. Elkins, Beyond Sovereignty (1995); Keith Aoki, (Intellectual) Property and Sovereignty: Notes Toward a Cultural Geography of Authorship, 48 Stan. L. Rev. 1293 (1996). 4. Recent Supreme Court opinions reflecting an adherence to colorblindness include Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995) (colorblindness and government contracting); Miller v. Johnson, 115 S. Ct. 2475 (1995) (colorblindness and voting districts); Missouri v. Jenkins, 115 S. Ct. 2038 (1995) (colorblindness and school desegregation). For a criticism of these decisions, all from the 1994–95 term of the United States Supreme Court, see Robert L. Hayman, Jr., & Nancy Levit, The Tales of White Folk: Doctrine, Narrative, and the Reconstruction of Racial Reality, 84 Cal. L. Rev. 377 (1996) (reviewing Richard Delgado, The Rodrigo Chronicles: Conversations about America and Race (1995)). For general criticisms of colorblind constitutionalism, see Garrett Epps, Of Constitutional Seances and Color-Blind Ghosts, 72 N.C. L. Rev. 401 (1994); Neil Gotanda, A Critique of “Our Constitution is Color-Blind,” 44 Stan. L. Rev. 1 (1990). 5. Michael Omi & Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s, at 55–56 (2d ed. 1994). 6. Dennis Conway, Are There New Complexities in Global Migration Systems of Consequence for the United States “Nation-State”? 2 Ind. J. Global Legal Stud. 31, 41–42 (citing Immigration Act of 1990, Pub. L. No. 101-649, § 132, 104 Stat. 4978, 5000 (codified as amended at 8 U.S.C. § 1153 note (Supp. V 1993))). 7. Leti Volpp, Talking “Culture”: Gender, Race, Nation and the Politics of Multiculturalism, 96 Colum. L. Rev. 1573, 1605 n.158 (1996) (citing Jeff Yang & Karen Lam, Could It Happen Here, The Village Voice, Dec. 6, 1994). 8. Etienne Balibar, Is There a “Neo-Racism”? in Race, Nation, Class: Ambiguous Identities 17, 21 (Etienne Balibar & Immanuel Wallerstein eds., 1991). 9. Stoddard, Re-Forging America 103 (1927), quoted in Walter Benn Michaels, Our America, Nativism, Modernism, and Pluralism 65 (1995). 10. Michaels, supra note 9, at 65. 11. See, e.g., Lynne Henderson, Authoritarianism and the Rule of Law, 66 Ind. L.J. 379, 380 (1991); David A. Martin, Due Process and Membership in the National Community: Political Asylum and Beyond, 44 U. Pitt. L. Rev. 165, 204 (1983); contra Kenneth Karst, Belonging to America: Equal Citizenship and the Constitution 84 (1989). 12. Even the religious-based nativism directed against Catholics had a racial component insofar as they were racialized as members of a quasi-nation owing their allegiance to the pope. See John Higham, Strangers in the Land: Patterns of American Nativism, 1860–1925 (2d ed. 1988). 13. Id. at 132. 14. Walter Benn Michaels, The Souls of White Folk, in Literature and the Body: Essays on Populations and Persons 185, 188 (Elaine Scarry ed., 1988). 15. Id. at 188–89.

Notes to Chapter 2 | 145 16. Nativistic racism or racial nationalism has also operated to construct Native American identities. Native Americans occupy a unique position in the racial economy of the United States because of their quasi-sovereign status. 17. Omi & Winant, supra note 5, at 55–56. 18. Lisa Lowe, Heterogeneity, Hybridity, Multiplicity: Marking Asian American Differences, 1 Diaspora 24 (1991). 19. For some examples of those commenting on the diversity within Asian American and Latina/Latino communities, see Pat Chew, Asian Americans: The “Reticent” Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1 (1994); Berta Esperanza Hernandez Truyol, Building Bridges—Latinas and Latinos at the Crossroads: Realities, Rhetoric and Replacement, 25 Colum. Hum. Rts. L. Rev. 369 (1994); Lowe, supra note 18. 20. See, e.g., Theodore W. Allen, The Invention of the White Race, Volume One: Racial Oppression and Social Control (1994); Ruth Frankenberg, White Women, Race Matters: The Social Construction of Whiteness (1993); Ian Haney Lopez, White by Law: The Legal Construction of Race (1996); David Roediger, Towards the Abolition of Whiteness (1994); Barbara Flagg, “Was Blind, but Now I See”: White Race Consciousness and the Requirement of Discriminatory Intent, 91 Mich. L. Rev. 953 (1993); Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707 (1993); George Lipsitz, The Possessive Investment in Whiteness: Racialized Social Democracy and the “White” Problem in American Studies, 47 Am. Q. 369 (1995). 21. Iris Marion Young, Justice and the Politics of Difference 158 (1990) (discussing Richard Wasserstrom, On Racism and Sexism, in Philosophy and Social Issues (1980)). 22. Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2119 (1995) (Scalia, J., concurring). 23. Alan D. Freeman, Legitimating Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978). 24. Ernesto Laclau & Chantal Mouffe, Hegemony & Socialist Strategy: Toward a Radical Democratic Politics 176 (1985). 25. Chantal Mouffe, Hegemony and New Political Subjects: Toward a New Concept of Democracy, in Marxism and the Interpretation of Culture 89, 100 (Cary Nelson & Lawrence Grossberg eds., 1988). 26. Robert Frost, Mending Wall, in Robert Frost’s Poems 94 (1971). 27. Id. at 94–95. 28. Id. at 95. 29. Noam Chomsky, World Orders Old and New 7 (1994). 30. Thomas Friedman, N.Y. Times Week in Review, June 2, 1992, quoted in Chomsky, supra note 29, at 7. 31. Chantal Mouffe, The Return of the Political 3–4 (1993).

146 | Notes to Chapter 2 32. Timothy Christenfeld, Alien Expressions: Wretched Refuse Is Just the Start, N.Y. Times, March 10, 1996, § 4, at 4. 33. Priscilla Labovitz, Immigration—Just the Facts, N.Y. Times, March 25, 1996, at A19. 34. See Linda S. Bosniak, Opposing Prop. 187: Undocumented Immigrants and the National Imagination, 28 Conn. L. Rev. 555, 556 n.3 (1996). 35. Salman Rushdie, “Imaginary Homelands,” in Imaginary Homelands: Essays and Criticism 1981–1991, at 9 (1991). 36. On English-only, see Antonio J. Califa, Declaring English the Official Language: Prejudice Spoken Here, 24 Harv. C.R.-C.L. L. Rev. 293 (1989); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 Minn. L. Rev. 269 (1992). On Proposition 187, see Linda Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. Rev. 1047, 1052 n.12 (1994); Bosniak, supra note 34. 37. According to one news report near the beginning of 1995, Colorado, Florida, Illinois, Louisiana, Minnesota, Missouri, Nebraska, Nevada, New York, Texas, Vermont, Washington, Wisconsin, and Wyoming were considering Prop. 187-style laws. Lourdes Medrano Leslie, Group Seeks to Give State a Prop. 187: Wants Coast-Style Law on Illegals, Ariz. Republic, Jan. 23, 1995, at B1. 38. Dudley O. McGovney, The Anti-Japanese Land Laws of California and Ten Other States, 35 Cal. L. Rev. 7 (1947). 39. See, e.g., Terrace v. Thompson, 263 U.S. 197 (1923) (upholding Washington’s Alien Land Law); Porterfield v. Webb, 263 U.S. 225 (1923) (upholding California’s Alien Land Law). 40. McGovney, supra note 38, at 9, 17. 41. Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892). 42. Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889). 43. Ozawa v. United States, 260 U.S. 178 (1922) (denying naturalization rights to Japanese immigrants); United States v. Thind, 261 U.S. 204 (1923) (denying naturalization rights to Asian Indian immigrants). For an excellent recent discussion of these cases, see Haney Lopez, supra note 20. 44. Cf. Keith Aoki, “Foreign-ness” & Asian American Identities: Yellowface, Propaganda and Bifurcated Racial Stereotypes, 3 UCLA Asian Pacific American L.J. (forthcoming 1998) (“everything they are, we are not, and vice versa”). 45. Interview with James Baldwin, CBS News (CBS television broadcast, Oct. 1967), quoted in Adeno Addis, “Hell Man, They Did Invent Us”: The Mass Media, Law, and African Americans, 41 Buff. L. Rev. 523, 528 (1993) (citation omitted). 46. Arthur M. Schlesinger, Jr., The Disuniting of America: Reflections on a Multicultural Society (1992). 47. Id. at 67. For a cogent critique of Schlesinger, see Stanley Fish, Bad Company, 56 Transition 60 (1992).

Notes to Bridge: Introduction to Part II | 147 48. Peter Brimelow, Alien Nation: Common Sense about America’s Immigration Disaster 58–73 (1995). 49. See, e.g., Success Story of One Minority Group in U.S., U.S. News & World Rep., Dec. 26, 1966, at 73, reprinted in Roots: An Asian American Reader 6 (Amy Tachiki et al. eds., 1971). 50. See Bosniak, supra note 36, at 1050–51 n.7. 51. U.S. Commission on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s, at 29. 52. Al Kamen, When Hostility Follows Immigration: Racial Violence Sows Fear in New Jersey’s Indian Community, Wash. Post, Nov. 16, 1992, at A1, A6. 53. Sucheng Chan, Asian Americans: An Interpretive History 49 (1991). 54. Paul Crane & Alfred Larson, The Chinese Massacre, 12 Annals of Wyoming 47, 47–49 (1940). 55. Vera Kutzinski, American Literary History as Spatial Practice, 4 Am. Literary History 555 (1992). 56. Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies: Hearings on H.R. 3814 before a Subcommittee of the Committee on Appropriations of the United States Senate 104th Congress, S. Hrg. 104-744, at 269, 273–81 (1997) (statement of Doris Meissner, Commissioner of the Immigration and Naturalization Service given May 9, 1996), available in 1996 WL 10163824; INS Commissioner Announces Results of Operation Southpaw, U.S. Newswire, Sept. 26, 1995, available in 1995 WL 6619818. 57. Mouffe, supra note 25, at 101 (quoting Alexis de Toqueville). notes to bridge: introduction to part ii 1. Lisa Lowe, Immigrant Acts: On Asian American Cultural Politics (1996). 2. See Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 610–12 (1990). 3. Nan D. Hunter, Life after Hardwick, 27 Harv. C.R.-C.L. L. Rev. 531, 546–47 (1992). 4. Kimberle Crenshaw, Remarks at Opening Plenary, Conference on Critical Race Theory, Yale Law School, November 14, 1997. See also Introduction, in Critical Race Theory: The Key Writings That Formed the Movement xiii (Kimberle Crenshaw et al eds., 1995). 5. Richard Delgado, When a Story Is Just a Story: Does Voice Really Matter? 76 Va. L. Rev. 95, 95 n.1 (1990). 6. John O. Calmore, Critical Race Theory, Archie Shepp, and Fire Music: Securing an Authentic Intellectual Life in a Multicultural World, 65 S. Cal. L. Rev. 2129, 2163 (1992).

148 | Notes to Bridge: Introduction to Part II 7. Anthony Appiah, The Uncompleted Argument: Du Bois and the Illusion of Race, in “Race,” Writing, and Difference 21, 25 (Henry L. Gates, Jr. ed., 1986). 8. See Shirley Hune, An Overview of Asian Pacific American Futures: Shifting Paradigms, in The State of Asian Pacific America[,] A Public Policy Report: Policy Issues to the Year 2020, at 1, 5–6 (LEAP Asian Pac.Am.Pub. Policy Inst. and UCLA Asian Am. Studies Ctr. eds., 1993). 9. Narrative would include not just the personal narrative of the author, but also actual and fictional narratives of others told by the author. See, e.g., Derrick Bell, and We Are Not Saved: The Elusive Quest for Racial Justice (1987); Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320 (1989). notes to chapter 3 1. U.S. Comm’n on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s [hereinafter Civil Rights Report], at 1 (1992) (quoting Michel McQueen, Voters’ Responses to Poll Disclose Huge Chasm between Social Attitudes of Blacks and Whites, Wall St. J., May 17, 1991, at A 16) (footnote omitted). 2. For general works discussing Asian American history, see Sucheng Chan, Asian Americans: An Interpretive History (1991); Roger Daniels, Asian America: Chinese and Japanese in the United States Since 1850 (1988); Ronald Takaki, Strangers from a Different Shore: A History of Asian Americans (1989). 3. See Racism and Sexism Resource Ctr. for Educators, Council on Interracial Books for Children, Stereotypes, Distortions and Omissions in U.S. History Textbooks 33–54 (1977). 4. Stephen E. Gottlieb, In the Name of Patriotism: The Constitutionality of “Bending” History in Public Secondary Schools, 62 N.Y.U. L. Rev. 497, 510–11 (1987). 5. 1 George Santayana, The Life of Reason 284 (2d ed. 1922). 6. Paula C. Johnson, The Social Construction of Identity in Criminal Cases: Cinema Verité and the Pedagogy of Vincent Chin, 1 Mich. J. Race & L. 347, 401 (1996). 7. John Higham, Strangers in the Land: Patterns of American Nativism, 1860–1925, at 4 (2d ed. 1988). 8. Al Kamen, When Hostility Follows Immigration: Racial Violence Sows Fear in New Jersey’s Indian Community, Wash. Post, Nov. 16, 1992, at A1, A6. 9. Id.; see also Civil Rights Report, supra note 1, at 28–29. 10. Sucheng Chan, This Bittersweet Soil: The Chinese in California Agriculture, 1860–1910, at 370 (1986); Chan, supra note 2, at 49. 11. Paul Crane & Alfred Larson, The Chinese Massacre, 12 Annals of Wyoming 47, 47–49 (1940).

Notes to Chapter 3 | 149 12. See Anti-Chinese Violence in North America (Roger Daniels ed., 1978); Chan, supra note 2, at 48–51; Daniels, supra note 2, at 58–64 (1988). 13. See Richard M. Brown, Historiography of Violence in the American West, in Historians and the American West 234, 250–51 (Michael P. Malone ed., 1983). 14. Daniels, supra note 2, at 59 n.66. 15. Stanley Fish, Bad Company, 56 Transition 60, 63 (1992). 16. Id. at 60–61 (quoting Arthur Schlesinger, Jr., The Disuniting of America: Reflections on a Multicultural Society (1992), some alteration in original). 17. Id. at 61. 18. E. J. Dionne, Jr., Buchanan’s Political Street Fight: Challenger’s Conservatism Rooted in Catholic Upbringing, Wash. Post, Feb. 15, 1992, at A1, A20 (quoting a June 1990 article by Buchanan). 19. See Neil Gotanda, “Other Non-Whites” in American Legal History, 85 Colum. L. Rev. 1186, 1188 (1985) (reviewing Peter Irons, Justice at War (1983)). 20. Mark Potts, Japanese Cleared for Seattle Baseball Deal, Wash. Post, June 10, 1992, at A1, A18. 21. See Don’t Reject Japanese Pitch, USA Today, Jan. 29, 1992, at 10A; Mike Meyers, Enduring U.S.-Japanese Rivalry Has Roots That Precede World War II, Star Trib., Dec. 8, 1991, at 1A. 22. Edwin E. Ferguson, The California Alien Land Law and the Fourteenth Amendment, 35 Cal. L. Rev. 61, 77 (1947). I refer to both Japanese-born aliens and their American-born offspring as Japanese Americans. I do not differentiate because the naturalization statutes prevented Japanese-born aliens from becoming United States citizens. 23. Id. at 62. 24. Id. at 66–67. 25. Civil Rights Report, supra note 1, at 19. 26. Id. 27. See Daniels, supra note 2, at 317–18 (citing William Petersen, Success Story, Japanese American Style, N.Y. Times, Jan. 6, 1966, Magazine, at 20). 28. Success Story of One Minority Group in U.S., U.S. News & World Rep., Dec. 26, 1966, at 73, 73, reprinted in Roots: An Asian American Reader 6 (Amy Tachiki et al. eds., 1971). 29. Takaki, supra note 2, at 474 (citations omitted). 30. Mitsuye Yamada, Invisibility Is an Unnatural Disaster: Reflections of an Asian American Woman, in This Bridge Called My Back: Writings by Radical Women of Color 35, 35 (Cherrie Moraga & Gloria Anzaldua eds., 1981). 31. Takaki, supra note 2, at 478; see also Civil Rights Report, supra note 1, at 20 (quoting U.S. Comm’n on Civil Rights, Success of Asian Americans: Fact or Fiction? 24 (1980)).

150 | Notes to Chapter 3 32. U.S. Dept. of Commerce, We the Americans . . . Asians 7 (1993) (based on 1990 Census). 33. Richard A. Posner, Duncan Kennedy on Affirmative Action, 1990 Duke L.J. 1157, 1157 (revised text of speech delivered on January 4, 1991, at Association of American Law Schools convention). 34. Id. at 1157 n.2. 35. Id. 36. Henry Der, Asian Pacific Islanders and the “Glass Ceiling”—New Era of Civil Rights Activism? Affirmative Action Policy, in The State of Asian Pacific America[,] A Public Policy Report: Policy Issues to the Year 2020, at 215, 219 (LEAP Asian Pac. Am. Pub. Policy Inst. and UCLA Asian Am. Studies Ctr. eds., 1993). 37. Takaki, supra note 2, at 475; see also Civil Rights Report, supra note 1, at 18. 38. Chan, supra note 2, at 169. 39. Takaki, supra note 2, at 475. 40. Chan, supra note 2, at 168. 41. One study reported that “for each additional year of education, whites earned $522 more, compared to $438 for Japanese, $320 for Chinese, $340 for Mexican Americans, and $284 for blacks.” Id. at 168 (citing Robert M. Jiobu’s 1976 study of American-born men in California). 42. Takaki, supra note 2, at 475. 43. Id. In New York the mean personal income for white men was $21,600, compared to only $18,900 or 88 percent for Korean men, $16,500 or 76 percent for Filipino men, and only $11,200 or 52 percent for Chinese men. 44. Compare Der, supra note 36, at 220 (“[C]ontrolling for educational and occupational status when compared to white women, Asian Pacific Islander women do as well if not slightly better, in terms of earned median income”), with Chan, supra note 2, at 169 (“But despite their high educational level, [Asian American women] receive lower returns to their education than do white women”), and Deborah Woo, The Gap between Striving and Achieving: The Case of Asian American Women, in Making Waves: An Anthology of Writings by and about Asian American Women 185, 192 (Asian Women United of Cal. ed., 1989) (“While education enhances earnings capability, the return on education for Asian American women is not as great as that for other women”). Professors Chan and Woo note two factors that Henry Der may not have considered, that Asian American women live in localities that pay higher wages and that a larger percentage of Asian American women work full-time than do their white counterparts. Chan, supra note 2, at 169; Woo, supra at 187–88. Also, the higher median income does not take into account the unpaid labor of many Asian American women in small, family-owned businesses, many of which operate with very low gross earnings. See Chan, supra note 2, at 169–70.

Notes to Chapter 3 | 151 45. See Seth Mydans, Giving Voice to the Hurt and Betrayal of Korean-Americans, N.Y. Times, May 2, 1993, § 4, at 9. 46. Id. 47. See, e.g., Trina Grillo & Stephanie M. Wildman, Obscuring the Importance of Race: The Implication of Making Comparisons between Racism and Sexism (or Other -Isms), 1991 Duke L.J. 397, 401–10. 48. See Civil Rights Report, supra note 1, at 59. 49. Id. at 59 n.53; Martin v. Wilks, 490 U.S. 755 (1989) (recognizing a right to challenge as discriminatory a consent decree that orders an employer to hire minorities). 50. See, e.g., Ronald Dworkin, Law’s Empire 381–87 (1986) (discussing three forms of constitutional rights against discrimination). 51. See Robin West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1, 5 (1988) (discussing the autonomous individual celebrated by liberal legalism). 52. See, e.g., Walpola S. Rahula, What the Buddha Taught 51–66 (rev. ed. 1974) (describing the doctrine of Anatta, which maintains that the notion of “self ” is false and that all evil in the world can be traced to the idea of self ). There is a large body of literature, much of it from critical legal scholars, that criticizes liberalism’s celebration of individualism. See, e.g., Roberto M. Unger, Knowledge and Politics 277–78 (1975). 53. ‘“In the Vietnamese language, ‘the word “I” (toi) . . . means “your servant”; there is no “I” as such. When you talk to someone, you establish a relationship.”’ Patricia Williams, Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law’s Response to Racism, 42 U. Miami L. Rev. 127, 140 (1987) (quoting Daniel Berrigan & Thich Nhat Hanh, The Raft Is Not the Shore 38 (1975)). 54. See Neil Gotanda, A Critique of “Our Constitution Is Color-Blind,” 44 Stan. L. Rev. 1 (1991); see also Alan D. Freeman, Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978) (tracing the Court’s post-Brown approach to discrimination and maintaining that a focus on rights often legitimizes oppression). Many minority scholars have criticized critical legal studies scholars, such as Freeman, for their insensitivity to minorities’ reliance on rights. See, e.g., Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want? 22 Harv. C.R.-C.L. L. Rev. 301, 305 (1987) (criticizing CLS attacks on rights and noting that CLS fails to offer substitute protection). 55. See John Calmore, Critical Race Theory, Archie Shepp, and Fire Music: Securing an Authentic Intellectual Life in a Multicultural World, 65 S. Cal. L. Rev. 2129, 2171–72 (1992). 56. Colloquy, Racism in the Wake of the Los Angeles Riots, 70 Denv. U. L. Rev. 187 (1993) (including contributions by the Honorable A. Leon Higginbotham, Jr., The Honorable Nathaniel R. Jones, Jerome Culp, Henry Richardson, Deborah

152 | Notes to Chapter 3 Post, Lynn Curtis, Kimberle Crenshaw, Gary Peller, and Anthony Cook); Jerome M. Culp, Jr., Notes from California: Rodney King and the Race Question, 70 Denv. U. L. Rev. 199, 202 nn.8–9 (1993); Henry J. Richardson III, The International Implications of the Los Angeles Riots, 70 Denv. U. L. Rev. 213, 225–26 (1993). 57. I borrow this phrase from Barbara Johnson, who said, “Difference . . . must be represented in order to be erased.” Barbara Johnson, Thresholds of Difference: Structures of Address in Zora Neale Hurston, in “Race,” Writing, and Difference, 317, 323 (Henry L. Gates, Jr. ed., 1986). notes to chapter 4 1. See Ronald Dworkin, Law as Interpretation, 60 Tex. L. Rev. 527, 541 (1982); Stanley Fish, Working on the Chain Gang: Interpretation in Law and Literature, 60 Tex. L. Rev. 551, 553 (1982). 2. Abdul R. JanMohammed & David Lloyd, Introduction: Minority Discourse— What Is to Be Done?, 7 Cultural Critique 5, 7 (1987). 3. Compare James B. White, Laws as Language: Reading Law and Reading Literature, 60 Tex. L. Rev. 415 (1982) (arguing that a legal text is like a literary text, in that each is subject to interpretation and has no determinate meaning) with Patricia J. Williams, Alchemical Notes: Reconstructing Ideals From Deconstructed Rights, 22 Harv. C.R.-C.L. L. Rev. 401 (1987) (weaving stories and meta-stories about herself and the law to critique critical legal studies). 4. See generally Symposium, Legal Storytelling, 87 Mich. L. Rev. 2073 (1989). 5. For some recent exchanges, see Randall L. Kennedy, Racial Critiques of Legal Academia, 102 Harv. L. Rev. 1745 (1989), and Colloquy, Choosing Sides in the Racial Critiques Debate, 103 Harv. L. Rev. 1844 (1990) (contributions by Scott Brewer, Milner Ball, Robin Barnes, Richard Delgado, and Leslie Espinoza) (responding to Kennedy); Mark V. Tushnet, The Degradation of Constitutional Discourse, 81 Geo. L.J. 251 (1992), and Gary Peller, The Discourse of Constitutional Degradation, 81 Geo. L.J. 313 (1992) (responding to Tushnet); Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807 (1993), and Richard Delgado, On Telling Stories in School: A Reply to Farber and Sherry, 46 Vand. L. Rev. 665 (1993). 6. See Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (1982). This work generated much controversy, including reports by some psychologists who were unable to replicate her results or who did not see such dramatic differences. 7. See Kennedy, supra note 5. 8. See, e.g., Colloquy, Choosing Sides in the Racial Critiques Debate, supra note 5; Alex M. Johnson, Jr., The New Voice of Color, 100 Yale L.J. 2007, 2061-62 (1991); sources cited supra note 5. 9. Farber & Sherry, supra note 5, at 814.

Notes to Chapter 4 | 153 10. Id. 11. Delgado, supra note 128, at 669. 12. See, e.g., Jerome M. Culp, Jr., Voice, Perspective, Truth, and Justice: Race and the Mountain in the Legal Academy, 38 Loy. L. Rev. 61, 73 (1992); Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581 (1990). 13. See Donna Haraway, A Manifesto for Cyborgs: Science, Technology, and Socialist Feminism in the 1980s, in Feminism/Postmodernism 190, 197 (Linda J. Nicholson ed., 1990). 14. Elaine Showalter, Feminist Criticism in the Wilderness, in The New Feminist Criticism 243, 253 (Elaine Showalter ed., 1985) (quoting Carolyn G. Burke, Report from Paris: Women’s Writing and the Women’s Movement, 3 Signs 844 (1978)). 15. Stephen M. Feldman, Send in the Clowns: Postmodernism, Legal Scholarship, and the Teague Rule against New Rules in Habeas Corpus Cases 349 (unpublished manuscript, on file with Georgetown Law Journal), quoted in Tushnet, supra note 5, at 343 n.1. 16. Henry L. Gates, Jr., Authority, (White) Power and the (Black) Critic, 7 Cultural Critique 19, 22 (1987) (quoting Alexander Crummell, The English Language in Liberia, in The Future of Africa 35 (1862)). 17. Jane Tompkins, Me and My Shadow, in Gender and Theory: Dialogues on Feminist Criticism, 121, 122 (Linda Kauffman ed., 1989). 18. I may overgeneralize, but there certainly was not a diversity of political opinions within the legal academy at that time. 19. See, e.g., Clifford Geertz, Local Knowledge 57 (1983); Nancy K. Miller, Getting Personal: Feminist Occasions and Other Autobiographical Acts 32 (1991). 20. See Thomas S. Kuhn, The Structure of Scientific Revolutions 12–13, 114 (2d ed. 1970). A new paradigm, wave mechanics, eventually came to explain the phenomenon. 21. See Laurence H. Tribe, The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics, 103 Harv. L. Rev. 1, 17–19 (1989) (discussing the importance of perspective to the Heisenberg Uncertainty Principle in quantum theory). 22. Id. at 38–39. 23. See, e.g., Farber & Sherry, supra note 5; Tushnet, supra note 5. 24. Tushnet, supra note 5, at 260. 25. Patricia J. Williams, The Alchemy of Race and Rights 128 (1991). 26. Id. at 50–51 27. Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 478–79. 28. Kathryn Abrams, Hearing the Call of Stories, 79 Cal. L. Rev. 971 (1991). 29. Id. at 1024. 30. Id. at 979.

154 | Notes to Chapter 4 31. Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 322 (1987) (footnote omitted). 32. Farber & Sherry, supra note 5, at 833. 33. Id. 34. Id. 35. I use “rational/empirical” rather than “modern” because modernism is a broader concept. See Dennis Patterson, Postmodernism/Feminism/Law, 77 Cornell L. Rev. 254, 263 (1992). Rational/empirical focuses on the epistemological foundationalism of modernism. 36. Alison M. Jaggar, Feminist Politics and Human Nature 354–55 (1983). 37. I understand poststructuralism to be a specific theoretical practice existing within the framework of postmodernism. See Fredric Jameson, Postmodernism, or, The Cultural Logic of Late Capitalism xvi (1991). 38. See Harris, supra note 12, at 581–82. 39. Katharine Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829, 837 (1990). 40. Kim L. Scheppele, Foreword: Telling Stories, 87 Mich. L. Rev. 2073, 2077 (1989). 41. John Rawls, A Theory of Justice passim (1971). 42. I borrow this phrase from Elizabeth Spelman’s article entitled, Simone de Beauvoir and Women: Just Who Does She Think “We” Is? in Feminist Interpretations and Political Theory 199 (Mary L. Shanley & Carole Pateman eds., 1991). 43. Tompkins, supra note 17, 132. 44. Adrienne Rich, Disloyal to Civilization: Feminism, Racism, Gynephobia, in On Lies, Secrets, and Silence 275, 306 (1979). 45. Jaggar, supra note 36, at 370 46. Bartlett, supra note 39, at 872. 47. Sandra Harding, The Science Question in Feminism 191 (1986). 48. See Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 324 (1987). 49. Carey McWilliams, Introduction to Carlos Bulosan, America Is in the Heart: A Personal History vii, xx (1973). 50. See Harding, supra note 47, at 191. 51. Jaggar, supra note 36, at 371. 52. Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence [1983], in Feminist Legal Theory: Readings in Law and Gender 181, 196 n.5 (Katharine T. Bartlett & Rosanne Kennedy eds., 1991). 53. Harris, supra note 12, at 585. 54. See id.; Elizabeth V. Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought (1988). 55. See Martha Minow & Elizabeth V. Spelman, In Context, 63 S. Cal. L. Rev. 1597, 1601 (1990).

Notes to Chapter 5 | 155 56. Plato, Theaetetus, in The Collected Dialogues of Plato 845 (Edith Hamilton & Huntington Cairns eds. & Lane Cooper et al. Trans., 3d prtg. 1964). Most commentators agree that the dialogue fails in that it does not arrive at a positive theory of knowledge. See, e.g., David Bostock, Plato’s Theaetetus (1988). 57. Jürgen Habermas, Knowledge and Human Interests 7 (1968) (quoting Hegel, Vorlesungen über die Geschichte der Philosophie). 58. Thomas Nagel, The View from Nowhere 7 (1986). 59. Patterson, supra note 35, at 265. 60. Nagel, supra note 58, at 5. 61. Cf. Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies 436–67 (criticizing what he calls critical self-consciousness, the notion that the self can exist apart from its connections to the world). 62. See Deborah L. Rhode, Feminist Critical Theories, 42 Stan. L. Rev. 617, 620 n.8 (1990). I do not discuss in detail the poststructuralist critique of objectivity. For examples of this critique, see Michel Foucault, The Archaeology of Knowledge (A. M. Sheridan Smith trans., 1972); Richard Rorty, Philosophy and the Mirror of Nature (1979). 63. Fish, supra note 61, at 344. 64. Tompkins, supra note 17, at 125. 65. See Nancy Fraser & Linda J. Nicholson, Social Criticism without Philosophy: An Encounter between Feminism and Postmodernism, in Feminism/Postmodernism, supra note 13, at 19, 21–26 (discussing and critiquing the work of postmodernist Jean-François Lyotard). 66. Stanley Fish, Lecture on Legal Theory, Duke Law School (Fall 1991). 67. See Immanuel Kant, Foundations of the Metaphysics of Morals & What Is Enlightenment? 30 (Lewis W. Beck trans., rev. 2d ed. 1990). 68. David Hume, A Treatise of Human Nature bk. 3, pt. 2, sec. 3, at 416 (L. A. Selby-Bigge & P. H. Nidditch eds., 1978). 69. Immanuel Kant, Critique of Pure Reason 635 (Norman K. Smith trans., 1929). 70. Bartlett, supra note 39, at 879. She makes this comment referring to feminists, but her statement can be generalized. 71. See generally Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972–1977 (Colin Gordon ed. & Colin Gordon et al. trans., 1980). notes to chapter 5 1. Mitsuye Yamada, Invisibility Is an Unnatural Disaster: Reflections of an Asian American Woman, in This Bridge Called My Back: Writings by Radical Women of Color 35, 40 (Cherrie Moraga & Gloria Anzaldua eds., 1981).

156 | Notes to Chapter 5 2. Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Mich. L. Rev. 2411, 2414 (1989). 3. Anonymous, Untitled, in Island: Poetry and History of Chinese Immigrants on Angel Island, 1910–1940, at 58 (Him Mark Lai et al. eds., 1980) [hereinafter Island]. 4. None of the poems which survived were written by women. Any poems that may have been written by women were lost when a fire destroyed the women’s quarters. Id. at 25–27. 5. Id. at 117 (editors’ interviewing Mr. Wong, who was twelve when he was detained on Angel Island in 1933). 6. Id. at 22. 7. Sucheng Chan, Asian Americans: An Interpretive History 46 (1991). 8. Ronald Takaki, Strangers from a Different Shore: A History of Asian Americans 277 (1989). 9. See Sucheta Mazumdar, Race and Racism: South Asians in the United States, in Frontiers of Asian American Studies 25, 26–30 (Gail M. Nomura et al. eds., 1989). 10. See Takaki, supra note 8, at 330. 11. Id. at 79. Chinese settled in Hawaii as early as 1802 and there were several Chinese sugar companies by the 1830s, although the first sizable group of Chinese arrived in 1852. Chan, supra note 7, at 26. Generally, I discuss immigration of Asians to the Hawaiian territories only in the context of further immigration to the mainland. For a discussion of Asian immigrants in Hawaii, see Takaki, supra note 8, at 132-76. 12. Charles J. McClain, Jr., The Chinese Struggle for Civil Rights in Nineteenth Century America: The First Phase, 1850-1870, 72 Cal. L. Rev. 529, 548 (1984). 13. People v. Hall, 4 Cal. 399 (1854). 14. Id. In 1863, the California Legislature codified the exclusion of Chinese testimony from both civil and criminal cases. Chan, supra note 7, at 48. It was not until the Civil Rights Act of 1870 that all persons were granted the right to give evidence, although implementation of the Act’s provisions were slow. See McClain, supra note 12. 15. U.S. Comm’n on Civil Rights, The Tarnished Golden Door: Civil Rights Issues in Immigration 10 n.38 (1980) [hereinafter The Tarnished Golden Door]. 16. U.S. Comm’n on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s, at 2 (1992) [hereinafter Civil Rights Report]. 17. Roger Daniels, Asian America: Chinese and Japanese in the United States Since 1850, at 43 (1988). 18. In re Ah Yup, 1 F. Cas. 223 (C.C.D. Cal. 1878). 19. See Civil Rights Report, supra note 16, at 2. 20. Lower courts were inconsistent in applying the naturalization statute. Com-

Notes to Chapter 5 | 157 pare In re Sadar Bhagwab Singh, 246 F. 496, 500 (E.D. Pa. 1917) (holding that Hindus are not eligible for naturalization) with In re Mohan Singh, 257 F. 209 (S.D. Cal. 1919) (holding that any Hindu is a white person and thus eligible for naturalization). The Supreme Court straightened this out in Ozawa v. United States, 260 U.S. 178 (1922); and United States v. Thind, 261 U.S. 204 (1923). For an excellent discussion of these cases, see Ian Haney Lopez, White by Law: The Legal Construction of Race (1996). 21. Mazumdar, supra note 9, at 30. 22. Takaki, supra note 8, at 299–300. 23. See Neil Gotanda, Towards Repeal of Asian Exclusion: The Magnuson Act of 1943, The Act of July 2, 1946, The Presidential Proclamation of July 4, 1946, The Act of August 9, 1946, and the Act of August 1, 1950, in Asian Americans and Congress: A Documentary History (1996); McCarran-Walter Act of 1952, 8 U.S.C. § 1101 (1988). 24. See, e.g., Terrace v. Thompson, 263 U.S. 197 (1923) (rejecting an equal protection challenge to a Washington land law that denied Asians, as aliens ineligible for citizenship, the right to own and lease land). 25. See Dudley O. McGovney, The Anti-Japanese Land Laws of California and Ten Other States, 35 Cal. L. Rev. 7, 7–8 (1947). 26. Su Sun Bai, Comment, Affirmative Pursuit of Political Equality for Asian Pacific Americans: Reclaiming the Voting Rights Act, 139 U. Pa. L. Rev. 731, 751 n.95 (1991). 27. See Westminster School Dist. v. Mendez, 161 F.2d 774, 780 (9th Cir.1947) (discussing Cal. Educ. Code § 8003-4, which required the segregation of Chinese, Japanese, and Mongolian children); see also Chan, supra note 7, at 57–59 (discussing segregated schools for Chinese children, foreign-born and American-born, in California and Mississippi, and for Japanese children in San Francisco). 28. 347 U.S. 483 (1954). 29. See Gong Lum v. Rice, 275 U.S. 78, 82–87 (1927); Wong Him v. Callahan, 119 F. 381 (C.C.N.D. Cal. 1902). 30. See Chan, supra note 7, at 59. 31. McClain, supra note 12, at 530–31. The legislative history of § 1981 and § 16 of the Civil Rights Act of 1870 is set out in greater detail in Runyon v. McCrary, 427 U.S. 160, 195–205 (1976) (White, J., dissenting). 32. See McClain, supra note 12, at 564–65. 33. Id. at 566. 34. Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). 35. See Charles J. McClain & Laurene W. McClain, The Chinese Contribution to the Development of American Law, in Entry Denied: Exclusion and the Chinese Community in America, 1882-1943, at 3, 8-15 (Sucheng Chan ed., 1991) (discussing Ho Ah Kow v. Nunan, 5 Sawy. 552 (9th Cir.1879), which successfully challenged a facially neutral San Francisco cubic-air ordinance that specifically punished

158 | Notes to Chapter 5 Chinese men by cutting off their traditional queues (braids) if they failed to pay the fine for violating the ordinance, and Yick Wo, supra note 34, which successfully challenged the discriminatory application of a facially neutral law aimed at driving the Chinese out of the laundry business). 36. McClain & McClain, supra note 35, at 16; Hiroshi Motomura, Immigration Law after a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545, 550–54 (1990). 37. McClain & McClain, supra note 36, at 18. 38. Island, supra note 3, at 13. 39. Id. at 60 (footnote omitted). 40. Id. at 28. 41. See Daniels, supra note 17, at 73 tbl. 3.3 (Chinese American Population in California and Other Western States, 1870–1940). 42. Id. at 69 tbl. 3.1 (Chinese American Population, Sex, Citizenship, and Sex Ratio, 1860–1940). 43. Takaki, supra note 8, at 235. A portion of this law that excluded wives of American citizens was repealed in 1930. Id. 44. Sylvia J. Yanagisako, Naturalizing Power: Essays in Feminist Cultural Analysis (1994). 45. Chan, supra note 7, at 55. 46. See id. at 55; Takaki, supra note 8, at 270–73. 47. Chan, supra note 7, at 55; see also The Tarnished Golden Door, supra note 15, at 9 (discussing the establishment of the Asia-Pacific Triangle, an Asiatic barred zone, designed to exclude Asians from immigrating to the United States, but exempting an area that included Persia and parts of Afghanistan and Russia). 48. Mary Isaksen Leonard, Making Ethnic Choices: California’s Punjabi Mexican Americans (1992) 49. Takaki, supra note 8, at 331–32 (quoting Senator Tydings). 50. Id. at 332–33. 51. 8 U.S.C. § 1101 (1988). 52. See Tarnished Golden Door, supra note 15, at 11 (citing Pub. L. No. 89236, 79 Stat. 911 (1965)). 53. Bill Ong Hing, Making and Remaking Asian America through Immigration Policy, 1850–1990, at 80 (1993). 54. See, e.g., Civil Rights Report, supra note 16, at 49–57 (describing numerous incidents of police neglect, harassment, and brutality toward Asian Americans). 55. Anonymous student evaluation, Spring 1993 (copy on file with author). 56. See Takaki, supra note 8, at 112–14; see also Racism and Sexism Resource Ctr. for Educators, Council on Interracial Books for Children, Stereotypes, Distortions and Omissions in U.S. History Textbooks 25 (1977). 57. Bai, supra note 26, at 737 (quoting G. Din, An Analysis of Asian/Pacific American Registration and Voting Patterns in San Francisco 86 (1984) (unpub-

Notes to Chapter 5 | 159 lished M.A. thesis, Claremont Graduate School)). Studies in areas with significant Asian Pacific American populations showed similar findings. Id. at 736–38. 58. Id. at 733 (footnotes omitted). 59. Id. at 735–48. 60. See, e.g., Cal. Const. art. II, § 1 (1911). 61. Civil Rights Report, supra note 16, at 159 (footnotes omitted). 62. See Civil Rights Report, supra note 16, at 157, 159; Benjamin Pimentel, Filipinos Finally Get Voice on Daly City’s Council, S.F. Chron., June 21, 1993, at A13. 63. Thornburg v. Gingles, 478 U.S. 30, 50 (1986). 64. See Bai, supra note 26, at 757 n.125. 65. 42 U.S.C. § 1973aa-1a (1988); H.R. Rep. No. 655, 102d Cong., 2d Sess. 3 (1992). 66. Civil Rights Report, supra note 16, at 157. 67. Id.. 68. 42 U.S.C.A. § 1973aa-1a (West Supp.1992) (amending 42 U.S.C.A. § 1973aa-1a (1988)). H.R. Rep. No. 655, supra note 65, at 8 n.19. 69. See L. Ling-chi Wang, Race, Class, Citizenship, and Extraterritoriality: Asian Americans and the 1996 Campaign Finance Scandal, 24 Amerasia J. 1 (1998). 70. See generally Ansel Adams, Born Free and Equal (1944); Peter Irons, Justice at War (1983) (telling the stories of four Japanese Americans who challenged the constitutionality of the internment orders); Japanese Americans: From Relocation to Redress (Roger Daniels et al. eds., rev. ed. 1991) [hereinafter From Relocation to Redress]; Michi Weglyn, Years of Infamy: The Untold Story of America’s Concentration Camps (1976). For an extensive bibliography of materials about the Japanese American internment, see Asian American Studies: An Annotated Bibliography and Research Guide 209–33 (Hyung-chan Kim ed., 1989). For early commentary on the Supreme Court decisions, see Jacobus TenBroek et al., Prejudice, War and the Constitution (1954); Nanette Dembitz, Racial Discrimination and the Military Judgment: The Supreme Court’s Korematsu and Endo Decisions, 45 Colum. L. Rev. 175 (1945); Eugene V. Rostow, The Japanese American Cases—A Disaster, 54 Yale L.J. 489 (1945). 71. Janice Mirikitani, Breaking Silence, in Shedding Silence 33, 33 (1987). 72. Roger Daniels, Introduction to Part VII, in From Relocation to Redress, supra note 70, at 188, 188; John Tateishi, The Japanese American Citizens League and the Struggle for Redress, in From Relocation to Redress, supra note 70, at 191, 191. 73. Id. 74. Id. at 192. 75. An Interview with S. I. Hayakawa, President of San Francisco State College, in Roots: An Asian American Reader 19, 21 (Amy Tachiki et al. eds., 1971). 76. Tateishi, supra note 72, at 192; Isao Fujimoto, The Failure of Democracy in a

160 | Notes to Chapter 5 Time of Crisis: The War-Time Internment of the Japanese Americans and Its Relevance Today, in Roots, supra note 75, at 207, 207. 77. Daniels, From Relocation to Redress, supra note 72, at 189. 78. Id. 79. Tateishi, supra note 72, at 193–94. 80. Daniels, supra note 17, at 336–37. 81. Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied 132 (1982) (quoting John Kimoto). 82. Id. at 176 (quoting George Takei). 83. Id. at 135. (quoting Betty Matsuo). 84. Id. (quoting Monica Sone). 85. Id. (quoting Michael Yoshii). 86. Chan, supra note 7, at 174. 87. Id. 88. Id. The margin of victory in the House was 243 to 141; in the Senate, 69 to 27. Id. 89. Roger Daniels, Redress Achieved, 1983–1990, in From Relocation to Redress, supra note 70, at 219, 219. 90. Chan, supra note 7, at 174. 91. Miriam C. Louie, Immigrant Asian Women in Bay Area Garment Sweatshops: “After Sewing, Laundry, Cleaning and Cooking, I Have No Breath Left to Sing,” 18 Amerasia J. 1, 10 (1992) (quoting a garment worker). 92. Id. at 10–11. 93. Harold P. Dygert III & David Shibata, Note, Chinatown Sweatshops: Wage Law Violations in the Garment Industry, 8 U.C. Davis L. Rev. 63, 83 (1975) (quoting B. de Nee & V. de Nee, Longtime Californ’: A Documentary Study of an American Chinatown 317 (1972)). 94. Louie, supra note 91, at 10. 95. Id. (quoting Chan Wai Fun). 96. Leo L. Lam, Note, Designer Duty: Extending Liability to Manufacturers for Violations of Labor Standards in Garment Industry Sweatshops, 141 U. Pa. L. Rev. 623, 640 (1992) (footnotes omitted). 97. Id. At her first job, she was paid by the piece and averaged two dollars an hour. Id. A recent survey of 230 San Francisco shops disclosed that 80 percent either did not pay overtime at all or did not pay overtime in full. Jack Viets, State Panel Hears Garment Workers’ Case, S.F. Chron., June 22, 1991, at A12. In 1990, 86 percent of the almost 1,700 garment shops visited by inspectors from California’s Department of Industrial Relations were cited for labor law violations. Dennis Hayashi, Preventing Human Rights Abuses in the U.S. Garment Industry: A Proposed Amendment to the Fair Labor Standards Act, 17 Yale J. Int’l L. 195, 197 (1992). In New York City “[i]n over 5000 investigations since 1987, the State Labor Department has found in addition to 2100 unregistered shops, 500 minimum wage viola-

Notes to Chapter 5 | 161 tions, 2000 reports of unsafe working conditions, and over 600 child-labor violations.” Lam, supra note 96, at 634. 98. Id. at 633. 99. See Steven A. Chin, Garment Firm’s Owners Sought, S.F. Examiner, July 22, 1991, at A1, A9. 100. Hayashi, supra note 97, at 195. 101. Lam, supra note 96, at 626 (footnote omitted). 102. Dexter Waugh, Stranded Garment Workers Get $305,000 in Back Pay, S.F. Examiner, Aug. 22, 1991, at A8. 103. Telephone Interview with Sharon Tang, Administrative Assistant, Asian Immigrant Women Advocates (Oct. 4, 1993); Steven A. Chin, Seamstresses Ask Designer for Pay, S.F. Examiner, Oct. 5, 1992, at A1. 104. Id. 105. Id. 106. Katharine Fong, Ripping at the Seams, S.F. Wkly., Dec. 30, 1992, at 17. 107. See Chin, supra note 103, at A1. 108. See Newsletter from Asian Immigrant Women Advocates to Supporters of the Garment Workers’ Justice Campaign (Asian Immigrant Women Advocates, Oakland, CA) (Dec. 22, 1992); Telephone Interview with Sharon Tang, supra note 355. 109. Lam, supra note 96, at 629 (footnote omitted). 110. Id. at 629 n.36 (citing statistics appearing in Steven A. Chin, Sweatshops: Bay’s Ugly Secret, S.F. Examiner, Feb. 13, 1989, at A1, A10). 111. Hayashi, supra note 97, at 199. 112. See Lam, supra note 9, at 653–54. For earlier criticisms and suggested reforms, see Dygert & Shibata, supra note 93; Barbara Koh, Note, Alterations Needed: A Study of the Disjunction between the Legal Scheme and Chinatown Garment Workers, 36 Stan. L. Rev. 825 (1984). 113. Julie A. Su, Making the Invisible Visible: The Garment Industry’s Dirty Laundry, 1 J. Gender, Race & Justice 405, 406 (1998). 114. Dygert & Shibata, supra note 93; Koh, supra note 112; Hayashi, supra note 97; Lam, supra note 96. 115. Su, supra note 113. 116. See Fragrante v. City of Honolulu, 699 F. Supp. 1429 (D. Haw. 1987), (holding that the effect of a Filipino man’s accent on his ability to communicate was valid grounds to refuse his promotion), aff ’d, 888 F.2d 591 (9th Cir.1989), cert. denied, 494 U.S. 1081 (1990). For an analysis of this case, see Mari Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L.J. 1329, 1333–40 (1991); Beatrice Bich-Dao Nguyen, Comment, Accent Discrimination and the Test of Spoken English: A Call for an Objective Assessment of the Comprehensibility of Non-native Speakers, 81 Cal. L. Rev. 1325 (1993).

162 | Notes to Chapter 5 117. Civil Rights Report, supra note 16, at 169 (quoting Nguyen Hen Van, a Vietnamese man mistakenly identified and tried as a murderer, as reported in Mixup in Court: Wrong Vietnamese Defendant Undergoes Two Days of Murder Trial, Seattle Times, Oct. 26, 1985). 118. Id. 119. Id. 120. Donna Yamashiro, “Mug Book” Issue Resolved, The Alliance (Asian Law Alliance, San Jose, CA), Fall 1991, at 5. 121. Id. 122. See Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 341 n.100; Sheri L. Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934, 940 (1984) (reporting that studies generally show that both whites and blacks have more difficulty identifying Asian faces than white and black faces). 123. Civil Rights Report, supra note 16, at 26 (citing Seth Effron, Racial Slaying Prompts Fear, Anger in Raleigh, Greensboro News & Rec., Sept. 24, 1989). Jim Ming Hai Loo was the victim of a racially charged murder that occurred outside a pool hall in Raleigh, North Carolina, in 1989. Id. 124. Id. 125. Nelson Kempsky, Chief Deputy Attorney General, State of California, A Report to Attorney General John K. Van de Kamp on Patrick Edward Purdy and the Cleveland School Killings 12 (Oct. 1989), quoted in Civil Rights Report, supra note 16, at 31. 126. Civil Rights Report, supra note 16, at 6. 127. Cf. Patricia Williams, Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law’s Response to Racism, 42 U. Miami L. Rev. 127, 139–45 (1987) (discussing how racism is a crime as painful, costly, and psychically devastating as robbery or assault). notes to chapter 6 1. My three stages follow closely the three stages used by Patricia Cain to map out feminist legal scholarship. See Patricia A. Cain, Feminist Jurisprudence: Grounding the Theories, 4 Berkeley Women’s L.J. 191, 198–205 (1989–90) (developing stages described by Clare Dalton, Where We Stand: Observations on the Situation of Feminist Legal Thought, 3 Berkeley Women’s L.J. 1 (1987–88)). For a similar comparison, see Alex M. Johnson, Jr., The New Voice of Color, 100 Yale L.J. 2007 (1991) (drawing comparisons based on three principal approaches in critical feminist theory, “difference,” “different voice,” and “dominance,” discussed by Cass R. Sunstein, Feminism and Legal Theory, 101 Harv. L. Rev. 826, 827 (1988) (reviewing Catharine A. MacKinnon, Feminism Unmodified (1987)).

Notes to Chapter 6 | 163 2. See, e.g., Randall L. Kennedy, Racial Critiques of Legal Academia, 102 Harv. L. Rev. 1745 (1989); Colloquy, Choosing Sides in the Racial Critiques Debate, 103 Harv. L. Rev. 1844 (1990). 3. See Angela P. Harris, Race and Essentialism in Feminist Legal Thought, 42 Stan. L. Rev. 581, 586 (1990). 4. Yick Wo. v. Hopkins, 118 U.S. 356 (1886). 5. In re Yick Wo, 68 Cal. 294, 299 (1885). 6. Yick Wo, 118 U.S. at 369. 7. U.S. Comm’n on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s, at 59 (1992). 8. 42 U.S.C. § 1973aa-1a (1992). 9. See H.R.Rep. No. 655, 102d Cong., 2d. Sess. (1992), reprinted in 1992 U.S.C.C.A.N. 766. 10. Ronald Takaki, Strangers from a Different Shore: A History of Asian Americans 222 (1989) (quoting Japanese American Courier, Aug. 31, 1929, Jan. 1, 1928). 11. Id. at 224. 12. See, e.g., John Calmore, Critical Race Theory, Archie Shepp, and Fire Music: Securing an Authentic Intellectual Life in a Multicultural World, 65 S. Cal. L. Rev. 2129, 2220 (1992) (discussing how black “styles of interaction” are deemed “inappropriate to the business world”); Mari Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L.J. 1329, 1333–49 (1991) (retelling the experiences of a number of employees who were penalized for not losing their “foreign” accents). 13. Takaki, supra note 10, at 225 (quoting Aiji Tashiro, The Rising Son of the Rising Sun, New Outlook, Sept. 1934, at 37). 14. Neil Gotanda, A Critique of “Our Constitution Is Color-Blind,” 44 Stan. L. Rev. 1, 2-3 (1991). 15. For example, we adopt “Asian American” in place of “Oriental,” even though “Asian American” is a term “created in the West from the need to make racial categorizations in a racially divided or, at least, a racially diverse society.” Elaine H. Kim, Asian American Literature: An Introduction to the Writings and Their Social Context xii (1982). 16. Calmore, supra note 12, at 2220 (quoting Milton Gordon, Assimilation in American Life: The Role of Race, Religion and National Origins 71 (1964)) (some alteration in original). 17. Id. at 2226. 18. Steve Biko, Black Souls in White Skins? in I Write What I Like 19, 24 (Aelred Stubbs ed., 1978). 19. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 400–401 (1978) (Marshall, J. concurring in the judgment).

164 | Notes to Chapter 6 20. Robin West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1, 3 (1988). In taking this stance, Professor West’s work is vulnerable to the essentialism critique. See, e.g., Harris, supra note 3. 21. Carolyn Jin-Myung Oh, Questioning the Cultural and Gender-Based Assumptions of the Adversary System: Voices of Asian American Law Students, 7 Berkeley Women’s L.J. 125 (1992). 22. Id. at 127 (footnote omitted). 23. Oh, however, found gender to be a better predictor of perceptions of the adversary system, although she admittedly had only a small sample of students, all from Boalt Hall School of Law. In the test group, there were twelve Asian Americans (half men, half women, of differing levels of cultural assimilation), and in the control group, there were ten Caucasians (half men, half women). Id. at 128–29. She did not take class differences into account. 24. See Leti Volpp, (Mis)Identifying Culture: Asian Women and the “Cultural Defense,” 17 Harv. Women’s L.J. 57 (1994); Doriane Lambert Coleman, Individualizing Justice through Multiculturalism: The Liberals’ Dilemma, 96 Colum. L. Rev. 1093 (1996); Leti Volpp, Talking “Culture”: Gender, Race, Nation and the Politics of Multiculturalism, 96 Colum. L. Rev. 1573 (1996). 25. Kimberlè Crenshaw, Race, Gender, and Sexual Harassment, 65 S. Cal. L. Rev. 1467, 1471 (1992) (quoting Orlando Patterson). 26. Id. at 1472. 27. See Volpp, (Mis)Identifying Culture, supra note 24. 28. See, e.g., Walpola S. Rahula, What the Buddha Taught (rev. ed. 1974); Roberto M. Unger, Knowledge and Politics 155 (1975). 29. See Elizabeth V. Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought (1988). 30. Fish often talks about the fact that poststructuralism has “no consequences.” Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies 315–55 (1989). 31. Matsuda, supra note 12. 32. Id. at 1403. 33. Candy Kit Har Chan, AsianWeek: The Voice of Asian America, Dec. 15, 1995, at front cover photograph. 34. Sharon K. Hom, Remarks for Asian American Bar Assoc. of N.Y., Annual Meeting and Awards Dinner (Jan. 25, 1996). This passage also appears in Sharon K. Hom, Performing Law: Deformations and Transformations, in Chinese Women Traversing Diaspora (Sharon K. Hom ed., forthcoming 1998). notes to chapter 7 1. Stephen L. Carter, Reflections of an Affirmative Action Baby 4–5 (1991).

Notes to Chapter 7 | 165 2. Natsu Saito Jenga, Unconscious: The “Just Say No” Response to Racism, 81 Iowa L. Rev. 1503, 1516 (1996) (citing Georgia Supreme Court Comm’n on Racial and Ethnic Bias in the Court System, Let Justice Be Done: Equally, Fairly, and Impartially 161 (1995)). 3. See, e.g., Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L.J. 214 (1983); David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283 (1995); and Floyd D. Weatherspoon, The Devastating Impact of the Justice System on the Status of African-American Males: An Overview Perspective, 23 Cap. U. L. Rev. 23 (1994). 4. David B. Oppenheimer, Understanding Affirmative Action, 23 Hastings Const. L.Q. 921, 926 (1996). 5. See Charles R. Lawrence, III, The Epidemiology of Color-Blindness: Learning to Think and Talk about Race, Again, 15 B.C. Third World L.J. 1, 7 n.24 (1995) (citing Peter Charles Hoffer, “Blind to History”: The Use of History in Affirmative Action Suits: Another Look at City of Richmond v. J.A. Croson Co., 23 Rutgers L.J. 270, 278–79 (1992)). 6. See, e.g., Randall Kennedy, Persuasion and Distrust: A Comment on the Affirmative Action Debate, 99 Harv. L. Rev. 1327 (1986). 7. Michael Stokes Paulsen, Reverse Discrimination and Law School Faculty Hiring: The Undiscovered Opinion, 71 Tex. L. Rev. 993, 1008 (1993). 8. Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1767 n.261 (1993) (quoting Andew Hacker, Two Nations: Black and White, Separate, Hostile, Unequal 202 (1992)). 9. For the use of narrative in the pursuit of a progressive social agenda, see generally, Symposium, Legal Storytelling, 87 Mich. L. Rev. 2073 (1989). See also my Chapter 4: Narrative Space. 10. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996). 11. See Sweatt v. Painter, 339 U.S. 629 (1950). 12. Hopwood, 78 F.3d at 953 (citing Hopwood v. Texas, 861 F. Supp. 551, 555 (W.D. Tex. 1994)). I find this assertion by the appellate court puzzling in light of the district court’s opinion which details the continuing failure of Texas’s system of public higher education, including its graduate and professional programs, to eliminate the vestiges of its past de jure segregation. Hopwood v. Texas, 861 F. Supp. at 555–56. In fact, it was not until 1983 that the Office of Civil Rights accepted a plan that was in conformity with Title VI. Id. at 556. 13. Hopwood, 78 F.3d at 953–54. 14. See generally Peter Brimelow, Alien Nation: Common Sense about America’s Immigration Disaster (1995); Arthur M. Schlesinger, Jr., The Disuniting of America (1991); Jared Taylor, Paved with Good Intentions: The Failure of Race Relations in Contemporary America (1992). 15. Timothy Christenfeld, Wretched Refuse Is Just the Start, N.Y. Times, March 10, 1996 § 4, at 4 (quoting Ruth Coffey).

166 | Notes to Chapter 7 16. Priscilla Labovitz, Immigration—Just the Facts, N.Y. Times, March 25, 1996, at A19. 17. See Sharon K. Hom, Remarks for Asian American Bar Association of New York, Annual Meeting and Awards Dinner, January 25, 1996. 18. Cf. Chantal Mouffe, The Return of the Political 3–4 (1993). 19. Derrick A. Bell, Jr., Comment, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518, 524 (1980). See also Mary Dudziak, Desegregation as a Cold War Imperative, 41 Stan. L. Rev. 61 (1988); John Hayakawa Torok, “Interest Convergence” and the Liberalization of Discriminatory Immigration and Naturalization Laws Affecting Asians, 1943–1965, in Chinese America: History and Perspectives (Chinese Historical Society of America ed., 1995). 20. Ralph Frammolino, Mark Gladstone, & Amy Wallace, Some Regents Seek UCLA Admissions Priority for Friends, L.A. Times, March 16, 1996, at A1. 21. Id. at A18. 22. See John K. Wilson, The Myth of Political Correctness: The Conservative Attack on Higher Education 151 (1995); John D. Lamb, The Real Affirmative Action Babies: Legacy Preferences at Harvard and Yale, 26 Colum. J.L. & Soc. Probs. 491, 509 (1993) (citing Statement of Findings of Office for Civil Rights, Compliance Review 01-88-6009 43). 23. Richard Kahlenberg, Class, Not Race, New Republic, April 3, 1995, at 21, 27. 24. See Wilson, supra note 22. 25. Roger Sanjek, Intermarriage and the Future of Races in the United States, in Race 103, 114 (Steven Gregory & Roger Sanjek eds., 1994). 26. Stanley Fish, Bad Company, 56 Transition 60, 66–67 (1992). 27. Wilson, supra note 22, at 149. 28. Lamb, supra note 22, at 491. 29. Id. at 493–94. 30. Jerry Kang, Negative Action against Asian Americans: The Internal Instability of Dworkin’s Defense of Affirmative Action, 31 Harv. C.R.-C.L. L. Rev. 1 (1996). 31. Selena Dong, Note, “Too Many Asians”: The Challenge of Fighting Discrimination against Asian-Americans and Preserving Affirmative Action, 47 Stan. L. Rev. 1027 (1995). 32. Dana Y. Takagi, From Discrimination to Affirmative Action: Facts in the Asian American Admissions Controversy, 37 Soc. Problems 578, 578 (1990). 33. Wilson, supra note 22, at 151. 34. Stanford University, 1985–86 Annual Report of the Committee on Undergraduate Admissions and Financial Aids (1986), reprinted in The Stanford University Campus Report, Nov. 12, 1986, at 14, col. 2, quoted in Grace Tsuang, Note, Assuring Equal Access of Asian Americans to Highly Selective Universities, 98 Yale L.J. 659, 670 n.77 (1989).

Notes to Chapter 7 | 167 35. See Tsuang, supra note 34, at 676. 36. Memo from Rae Lee Siporin, UCLA Director of Admissions to Undergraduate Enrollment Committee (Dec. 10, 1984), quoted in Tsuang, supra note 34, at 676 n.117. 37. Tsuang, supra note 34, at 673. 38. Id. at 662. 39. Lamb, supra note 22, at 494. 40. Tsuang, supra note 34, at 663–65. 41. Takagi, supra note 32, at 588–89. See also Frank Wu, Neither Black nor White: Asian Americans and Affirmative Action, 15 B.C. Third World L. Rev. 225 (1995). 42. See, e.g., Dong, supra note 31, at 1029; Wu, supra note 42, at 271–81. 43. See Asian Pacific American Population Report, January 1996, AsianWeek: The Voice of Asian America, Jan. 19, 1996, at 14, 15. 44. Richard Kahlenberg, Transcript of Proceedings, Conference on the Rehnquist Court and the American Dilemma (Sept. 21, 1995), in 45 Am. U. L. Rev. 567, 647–48 (1996) [hereinafter Transcript]. 45. Kahlenberg, Class Not Race, supra note 23, at 27. 46. Paul Brest & Miranda Oshige, Affirmative Action for Whom? 47 Stan. L. Rev. 855, 898 (1995). 47. Kahlenberg, supra note 23, at 27. 48. Robert Chang, Trancript, supra note 44, at 678–79. For the proposition that white women have been the primary beneficiaries of affirmative action, see Natalie J. Sokoloff, Black Women and White Women in the Professions: Occupational Segregation by Race and Gender, 1960–1980, at 18–19 (1992). 49. Mark Hager, Transcript, supra note 44, at 679. 50. Charles Oliver, Next Hot Button in California, Investor’s Business Daily, May 9, 1995, at A1. 51. Susan Sward, Generation Gap, Color Gap: Women Split on Affirmative Action, S.F. Chron., March 31, 1995, at A1. 52. Catharine MacKinnon, From Theory to Practice, Or What Is a White Woman Anyway, 4 Yale J.L. & Feminism 13 (1991). 53. Ramon G. McLeod, Family Ties Help Explain Why Women Are Split: Many Worried about Husbands’ Jobs, S.F. Chron., Mar. 31, 1995, at A4. 54. Sward, supra note 51, at A1 (quoting Patricia Ireland). 55. See Sanjek, supra note 25, at 114. 56. Howard Schuman, Charlotte Steeh, & Lawrence Bobo, Racial Attitudes in America: Trends and Interpretations 74–75 (1985, 1988 ed). 57. See, e.g., Herbert P. Le Pore, Prelude to Prejudice: Hiram Johnson, Woodrow Wilson, and the California Alien Land Law Controversy of 1913, 61 S. Cal. Q. 99, 100 (1979), reprinted in 2 Charles McClain, Asian Americans and the Law: Japanese Immigrants and American Law 265, 266 (1994).

168 | Notes to Chapter 7 58. Walter Benn Michaels, Our America: Nativism, Modernism, and Pluralism 6 (1995). 59. D. W. Griffith, The Birth of a Nation (1915). 60. Michaels, supra note 58, at 8. 61. I discuss this more fully in chapter 1. 62. See generally John Higham, Strangers in the Land: Patterns of American Nativism, 1860–1925 (2d ed. 1988). 63. Susan Faludi, Backlash: The Undeclared War against American Women (1991). 64. Sward, supra note 51, at A1. 65. Id. notes to chapter 8 1. See Ronald Takaki, Strangers from a Different Shore (1989). 2. See generally Mary Isaksen Leonard, Making Ethnic Choices: California’s Punjabi Mexican Americans (1992); see also Sucheng Chan, Asian Americans: An Interpretive History 109 (1991). 3. Francisco Valdes, Sex and Race in Queer Legal Culture: Ruminations on Identities & Interconnectivities, 5 Rev. L. & Women’s Studies 25, 30 (1996). 4. Id. 5. Elaine Showalter, Critical Cross-Dressing: Male Feminists and the Woman of the Year, in Raritan Reading 364 (Richard Poirier ed., 1990). 6. Sydney Pollack, Tootsie (Columbia Pictures, 1982). 7. Showalter, supra note 5, at 369–70 (quoting Molly Haskell). 8. Id. at 371. 9. Id. at 367. 10. Elvia Arriola, Law and the Gendered Politics of Identity: Who Owns the Label Lesbian? 8 Hastings Women’s L.J. 1, 2 (1997). 11. Id. (emphasis added). 12. Marjorie Garber, Vested Interests: Cross-Dressing & Cultural Anxiety 16 (1992). 13. Arriola, supra note 10, at 3–4. 14. Id. 15. Vera Kutzinski, American Literary History as Spatial Practice, 4 American Literary History 555 (1992). 16. Elaine K. Ginsberg, Introduction: The Politics of Passing, in Passing and the Fictions of Identity 16 (Elaine K. Ginsberg ed., 1996). 17. See generally Gayatri Chakravorty Spivak, Subaltern Studies: Deconstructing Historiography, in Selected Subaltern Studies 3, 13–15 (Ranajit Guha & Gayatri Chakravorty Spivak eds., 1988). 18. See Bill Ong Hing, Beyond the Rhetoric of Assimilation and Cultural Plural-

Notes to Chapter 8 | 169 ism: Addressing the Tension of Separatism and Conflict in an Immigration-Driven Multiracial Society, 81 Cal. L. Rev. 863 (1993). 19. Spike Lee, Do the Right Thing (Forty Acres and a Mule Filmworks 1989). 20. See, e.g., L.A. Chung, Tensions Divide Blacks, Asians: Economic Differences, Cultural Misunderstandings Set 2 Groups Apart, S.F. Chron., May 4, 1992, at A1; Jonathan Rieder, Trouble in Store: Behind the Brooklyn Boycott; Blacks v. Korean Produce Merchants, The New Republic, July 2, 1990, at 16. 21. Kobena Mercer, Welcome to the Jungle: New Positions in Black Cultural Studies 291–92 (1994). 22. Cf. Lisa C. Ikemoto, Traces of the Master Narrative in the Story of African American/Korean American Conflict: How We Contructed “Los Angeles,” 66 S. Cal. L. Rev. 1581 (1993). 23. But see Walter Benn Michaels, Our America: Nativism, Modernism, and Pluralism (1995). 24. Stuart Hall, New Ethnicities, in “Race,” Culture & Difference 252, 254 (James Donald & Ali Rattansi eds., 1992). 25. E.g., Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. L. Forum 139 (intersectionality); Angela Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581 (1990) (multiple consciousness); Mari Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, Address before the Yale Law School Conference on Women of Color and the Law (April 16, 1988), in 11 Women’s Rts. L. Rep. 7 (1989) (multiple consciousness); Katherine T. Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829 (1990) (positionality); Spivak, supra note 17, at 13–15 (strategic essentialism). 26. Yen Le Espiritu, Asian American Panethnicity: Bridging Institutions and Identities 32–33 (1992). 27. See, e.g., Symposium, Women of Color at the Center, 43 Stan. L. Rev. 1175 (1991). In particular, see the papers from the panel on Coalition Building presented by Mari Matsuda, Sharon Parker, Haunani-Kay Trask, and June K. Inuzuka. 28. See generally Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (1994). 29. See Peter Brimelow, Alien Nation: Common Sense about America’s Immigration Disaster (1995). 30. Id. 31. Efrain Hernandez, Jr., & Richard Simon, Despite Gains, Latino Voters Still Lack Clout, L.A. Times, Dec. 4, 1994, at A1. 32. Chantal Mouffe, Hegemony and New Political Subjects: Toward a New Concept of Democracy, in Marxism and the Interpretation of Cultures 89, at 89–90 (Cary Nelson & Lawrence Grossberg eds., 1988).

170 | Notes to Chapter 8 33. See Michel Foucault, The Archaeology of Knowledge 38 (A. M. Sheridan Smith trans., 1972). 34. Steve Biko, The Definition of Black Consciousness, in I Write What I Like (Aelred Stubbs ed., 2d ed., 1986). 35. Mercer, supra note 21, at 287–308. 36. See, e.g., Lauren Berlant & Elizabeth Freeman, Queer Nationality, in National Identities and Post Americanist Narratives 149 (Donald Pease ed., 1994); Steven Seidman, Identity and Politics in a “Postmodern” Gay Culture: Some Historical and Conceptual Notes, in Fear of a Queer Planet: Queer Politics and Social Theory 105 (Michael Warner ed., 1993). 37. This is a slightly modified list generated from a small-group discussion that grew out of the plenary session on Racial Formation Theory at the 1995 Critical Race Theory Workshop, Temple University, June 1995. 38. Angela Harris, Foreword: The Jurisprudence of Reconstruction, 82 Cal. L. Rev. 741, 783 (1994). 39. Ernesto Laclau & Chantal Mouffe, Hegemony & Socialist Strategy: Towards a Radical Democratic Politics 176 (1985). 40. Mouffe, supra note 31, at 100. 41. Cf. Adrian Piper, Passing for White, Passing for Black, in Passing and the Fictions of Identity 234, 251 (Elaine K. Ginsberg ed., 1996) (“no white person would voluntarily assume [blackness], even in imagination”). 42. See, e.g., Claire Smith, On Baseball: Jackie Robinson—50 Years, A Baseball Celebration; Color Issue Reaches People in Seats, N.Y. Times, Apr. 10, 1997, at B11. 43. See David Steele, Isiah Thomas Brings Equality to Ownership; First Black in True Seat of Sports Power, S.F. Chron., May 6, 1997, at D2. 44. Jerelyn Eddings, Tiger’s Triumph, America’s Gain, U.S. News & World Rep., April 28, 1997, at 8. 45. Great Time Coming: The Life of Jackie Robinson, from Baseball to Birmingham, Publ.’s Wkly, Jan. 2, 1995, at 65 (book review); John Strege, Tiger: A Biography of Tiger Woods (1997). 46. See, e.g., Pat Chew, Asian Americans: The “Reticent” Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1 (1994) (Asian Americans); Gloria Sandrino, Los Confudidos: De-Conflating Latinos/as’ Race and Nationality, 19 Chicano-Latino L. Rev. (forthcoming 1998) (Cuban Americans). 47. See David Roediger, Towards the Abolition of Whiteness: Essays on Race, Politics, and Working Class History 14 (1994). 48. Alfred E. Green, The Jackie Robinson Story (1950). 49. Id. 50. Id. 51. Janet Strudwick Smith, Am I Black, White or In Between, Ebony, Oct. 1995, at 14. Tiger Woods was criticized by the some of the Black community for claiming “90 percent Oriental, more Thai than anything.” Id.

Notes to Postscript | 171 52. Cf. Haya El Nasser, Measuring Race Varied Heritage Claimed and Extolled by Millions, USA Today, May 8, 1997, at 1A (Congressman Tom Petri has introduced the “Tiger Woods” bill, “asking for a multiracial box on federal forms”). 53. Kenneth E. Payson, Comment, Check One Box: Reconsidering Directive No. 15 and the Classification of Mixed-Race People, 84 Cal. L. Rev. 1233, 1235–36 (1996). 54. Christine B. Hickman, The Devil and the One Drop Rule: Racial Categories, African Americans, and the U.S. Census, 95 Mich. L. Rev. 1161, 1255 (1997) (citing Maria P. P. Root, Within, Between and Beyond Race, in Racially Mixed People in America 3, 9 (Maria P. P. Root ed., 1992)). 55. Bill Plaschke, History in the Making: From Ali to the Beatles to Man Walking on the Moon, Tiger Woods Could Be the Greatest Thing since Sliced Bread, L.A. Times, May 20, 1997, at C1. 56. Id. 57. Id. notes to postscript 1. The Wizard of Oz (Metro-Goldwyn-Mayer 1939). 2. See Angela Oh, Race Relations in Los Angeles: “Divide and Conquer” Is Alive and Flourishing, 66 S. Cal. L. Rev. 1647, 1650 (1993). 3. Derrick Bell, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518 (1980). 4. See Langston Hughes, Harlem, in The Collected Poems of Langston Hughes 426 (1959).

Index

Abrams, Kathryn, 66, 67 Acuna, Rodolfo, 140n. 8 Adams, Ansel, 159n. 70 Adarand v. Pena, 32, 123 Admissions and Asian Americans: Berkeley, 117; Harvard, 116; Stanford, 116; UCLA, 117. See also Legacy admissions Affirmative action: class, 118–19; in criminal justice system, 110–11; gender, 118–21; meaning of, 111; preferences for whites, 115, 117; role played by white women, 119–22. See also Admissions and Asian Americans; Legacy admissions Affirmative action baby, 110, 114, 122 African American identity, 3–4. See also Blackness Alcatraz Prison, 82 Alien Land Laws, 25, 36, 52–53, 80 Allen, Theodore W., 141n. 27 American Citizens for Justice, 22 American dream, 39, 58 Anderson, Benedict, 5 Angel Island, 78, 82 Aoki, Keith, 144n. 3, 146n. 44 Appiah, Kwame Anthony, 46 Are You Yellow? conference, 128 Arriola, Elvia, 125 Asian American: diversity within, 31, 45, 98; as an ethnic, panethnic, or racial identity, 2, 5; identity, 1–6; as an imagined community, 5–6; as racially nonwhite, 11. See also Imagined community; Oriental, as group label; Panethnicity Assimilation, 3–4, 21, 32, 101–2. See also Integration Bai, Su Sun, 143n. 53 Baldwin, James, 38 Balibar, Etienne, 29, 30

Barred Zone Act of 1917, 21, 84 Bartlett, Katherine, 154n. 39 Beauvoir, Simone de, 1, 138 Bell, Derrick, 114, 137. See also Interestconvergence theory Berlant, Lauren, 170n. 36 Biko, Steve: on black consciousness, 130; on integration, 101–2 Birth of a Nation, The, 13–14, 16–17, 18, 20–21, 25 Blackness: diversity within, 31; as a negative expression of whiteness and Americanness, 11, 18; as a political identity, 126–27 Black/white racial paradigm, 11, 58, 60 Bobo, Lawrence, 167n. 56 Borders: constructing national identities, 12, 27–28, 35, 37–38; crossings, 27–28, 36; inscribed on bodies, 27, 35, 39, 40; policing of, 6, 13, 17, 20, 25, 28, 36, 39–42 Bosniak, Linda, 146nn. 34, 36 Bostock, David, 155n. 56 Brando, Marlon, 15 Brest, Paul, 167n. 46 Brimelow, Peter, 39 Brown, Richard, 51 Brown v. Board of Education, 81 Buchanan, Pat, 49, 52 Bulosan, Carlos, 71 Burke, Carolyn, 63 Butler, Judith, 139n. 3 Byer California, 93 Cain, Patricia A., 162n. 1 Califa, Antonio J., 146n. 36 California Civil Rights Initiative, 119, 121 Calmore, John, 46 Cambodians, 56 Carter, Stephen, 110

173

174 | Index Census as official identity producer, 28, 133–34 Chae Chan Ping v. United States, 37 Chan, Charlie, 15 Chan, Sucheng, 92 Chang, Robert S., 142n. 50 Cheat, The, 14–18, 20–21, 25 Chew, Pat, 143n. 50 Chin, Vincent, 21–26, 40, 49, 136 Chinatown(s), 39, 54, 76, 87, 92 Chinese Exclusion Acts, 82–83; of 1882, 82; Geary Act of 1892, 82. See also Chae Chan Ping v. United States Chinese immigrants, early immigration pattern, 78–79 Chinese Massacre of 1885 (Rock Springs, Wyoming), 41, 50 Chomsky, Noam, 145n. 29 Choy, Christina, 7, 13, 21 Civil rights, limitations of traditional approaches, 45, 59 Civil Rights Acts: of 1866, 81; of 1870, 81, 82 Civil War, 13, 18 Clinton, Bill, 123, 135 Coalition building, 128–29 Coffey, Ruth, 34 Cold War, 33, 34, 35, 114 Coleman, Doriane Lambert, 164n. 24 Color-blindness, 32, 45, 59, 134 Columbia Pictures, 52 Commission on Wartime Relocation and Internment of Civilians, 90–91 Complicity, 42 Conway, Dennis, 144n. 6 Coolidge, Calvin, 1 Crane, Paul, 147n. 54 Crenshaw, Kimberlé, 103 Critical Asian American legal studies: cultural, 102–4; generally, 46–47; poststructural, 104–6; radical, 104; traditional civil rights work, 99–101 Critical race theory, 45–46; limited by black/white paradigm, 60 Crummell, Alexander, 64 Cullen, Countee, 3 Culp, Jerome M., Jr., 151n. 56, 153n. 12 Dalton, Clare, 162n. 1 Daniels, Rogers, 5

“Death by anecdote,” 112 Deconstruction, 104–5 Delgado, Richard, 45, 62, 76 Dembitz, Nanette, 159n. 70 DeMille, Cecil B., 7, 12, 14 Democracy: radical and plural, 32, 42, 130–31 Der, Henry, 150n. 36 Descartes, Rene, 110 Deukmejian, George, 94 Disfranchisement, 86–89 Dixon, Thomas, Jr., 21 Dong, Selena, 166n. 31 Dotbusters, 40 Do the Right Thing, 126–27, 131–32 Du Bois, W. E. B., 46 Dworkin, Ronald, 151n. 50 Dygert, Herbert P., III, 160n. 93 Ebens, Ronald, 22–25 Elkins, David J., 144n. 3 English-only movement, 35, 114 Epistemological strategies: philosophical skepticism, 73; poststructuralism or antifoundationalism, 73–75; rational/ empirical, 68–73; standpoint epistemology, 70–72 Epps, Garrett, 144n. 4 Espiritu, Yen Le, 5 Essentialism, 5, 72, 126 Executive Order 589, 83 Executive Order 9066, 91 Faludi, Susan, 121 Family: as marker for nation, 12, 14, 17, 25, 120; as marker for race, 16, 17, 25, 120–22 Famous Players-Lasky, 14 Farber, Daniel, 62, 63, 67 Feldman, Stephen M., 153n. 15 Feminism: cultural, 102–4; different voice, 62–63; radical, 104; standpoint epistemology, 70–72 Ferguson, Edwin E., 149n. 22 Filipino immigrants, 78–79, 84 Filipinotown, 87 Fish, Stanley, 51, 52, 73, 74, 115 Fitzpatrick, Peter, 140n. 4 Flagg, Barbara, 145n. 20 Foreignness: and the construction of Asian

Index | 175 American and American identities, 29, 35, 40, 41, 53 Foucault, Michel, 155nn. 62, 71 Fourteenth Amendment, 81, 82, 100 Fragrante v. City of Honolulu, 161n. 116 Frankenberg, Ruth, 141n. 27 Franklin, John Hope, 140n. 10 Fraser, Nancy, 155n. 65 Freeman, Alan D., 145n. 23 Freeman, Elizabeth, 170n. 36 Frost, Robert, 33 Fukuyama, Frances, 143n. 2 Gantt, Harvey, 112 Gap, The, 93 Garber, Marjorie, 125 Garment workers, 92–95 Gates, Henry Louis, Jr., 153n. 16 GATT, 28 Geary Act of 1892, 82 Geertz, Clifford, 153n. 19 Gender: imbalance in early Chinese American communities, 83; imbalance in South Asian communities, 84; linkage with race, 12–13, 15, 17, 20, 23–24, 33. See also Masculinity and race; Racial-sexual policing; Sexuality Gentleman’s Agreement of 1907, 83 Gilligan, Carol, 62 Ginsberg, Elaine, 125 Gong Lum v. Rice, 157n. 29 Gotanda, Neil, 5, 101 Gottlieb, Stephen E., 148n. 4 Gould, Charles W., 12 Griffith, D. W., 7, 12, 13, 17, 120 Grillo, Trina, 151n. 47 Guehenno, Jean-Marie, 143n. 2 Guinier, Lani, 169n. 28 Habermas, Jürgen, 155n. 57 Hall, Stuart, 127, 128, 129 Haney Lopez, Ian, 141n. 27 Haraway, Donna, 153n. 13 Harding, Sandra, 154n. 47 Harris, Angela P., 130 Harris, Cheryl I., 145n. 20 Hayakawa, Sessue, 14–15 Hayakawa, S. I., 90 Hayashi, Dennis, 160n. 97 Hayman, Robert L., 144n. 4

Hegel, G. W. F., 72 Heisenberg Uncertainty Principle, 65 Helms, Jesse, 112 Henderson, Lynne, 144n. 11 Hepburn, Katherine, 15 Hernandez Truyol, Berta Esperanza, 145n. 19 Hickman, Christine B., 171n. 54 Higashi, Sumiko, 141n. 11 Higham, John, 30 Hing, Bill Ong, 85 Hmong, 2, 56 Ho Ah Kow v. Nunan, 157n. 35 Hoffman, Dustin, 124 Hom, Sharon, 106, 113 Hongo, Garrett, 140n. 16 Hopwood v. Texas, 112 Hughes, Langston, 171n. 4 Hume, David, 74 Hune, Shirley, 148n. 8 Hunter, Nan D., 147n. 3 Ichioka, Yuji, 4 Identity: African American, 3–4; American, 1–6; Asian American, 1–6; as essentialist, 5; Korean American, 1–4; white, 18–20. See also Census as official identity producer; Essentialism; Identity politics; Political identities Identity crisis, national, 6, 13, 26, 34–35, 38–39 Identity politics, 32, 45. See also Political identities Ikemoto, Lisa, 169n. 22 Illegal immigration, 29 Imaginary homeland, 3, 35 Imagined community, 5–6, 35 Immigration Act of 1924, 11, 83, 84 Immigration Act of 1965, 39, 85 Immigration and Naturalization Service, 41 In re Ah Yup, 156n. 18 In re Mohan Singh, 156–57n. 20 In re Sadar Bhagwab Singh, 156–57n. 20 Integration, 101–2. See also Assimilation Interest-convergence theory, 114, 137 International Garment Workers Union, 93 Ireland, Patricia, 120 Irish: immigrants, 19, 29; racial attitudes of Irish immigrants, 19

176 | Index Jaggar, Alison M., 154n. 36 Jameson, Fredric, 154n. 37 JanMohammed, Abdul R., 152n. 2 Japanese American Citizens League, 90 Japanese American internment and redress, 89–92 Japanese immigrants, 78, 83 Jessica McClintock, 94 Johnson, Alex M., 152n. 8 Johnson, Barbara, 152n. 57 Johnson, Kevin R., 140n. 6 Johnson, Lyndon B., 54 Johnson, Paula C., 142n. 43 Johnson, Sheri L., 162n. 122 Kahlenberg, Richard, 118 Kallen, Horace, 12 Kang, Jerry, 143n. 50, 166n. 30 Kant, Immanuel, 72, 74 Karst, Kenneth, 144n. 11 Kaufman, Charles, 22 Kearney, Dennis, 19 Kennedy, Randall, 152n. 5 Kim, Elaine, 2 Kim, Hyung-chan, 159n. 70 King, Martin Luther, Jr., 137 King, Rodney, 137 Koh, Barbara, 161n. 112 Kohlberg, Lawrence, 62 Kong, Raymond, 93, 95 Kong, Yee Nor, 93, 95 Korea, 4 Korean immigrants, 78–79, 83–84 Koreatown, 87 Kuhn, Thomas, 153n. 20 Ku Klux Klan, 14 Kutzinski, Vera, 147n. 55 Laclau, Ernesto, 32 Lam, Leo L., 160n. 96 Lamb, John D., 166n. 22 Laotians, 56 Larson, Alfred, 147n. 54 Latina/Latino as racial and national formations, 31 Lawrence, Charles R. III, 153n. 27, 154n. 31 Lee, Spike, 126, 131 Legacy admissions, 115–16. See also Affirmative action

Leonard, Mary Isaksen, 158n. 48 Le Pore, Herbert P., 142n. 39 Leslie, Lourdes Medrano, 146n. 37 Levi-Strauss, 94 Levit, Nancy, 144n. 4 Lincoln, Abraham, 17 Lipsitz, George, 145n. 20 Little Tokyo, 90 Lloyd, David, 152n. 2 Loo, Jim Ming Hai, 97 Los Angeles Riots/Rebellion (1992), 58, 60, 137 Louie, Miriam C., 160n. 91 Lowe, Lisa, 145n. 18, 147n. 1 Lucky Sewing Company, 94 MacKinnon, Catharine, 119 Marchetti, Gina, 15, 16 Marshall, Thurgood, 102 Martin, David A., 144n. 11 Martin v. Wilks, 151n. 49 Masculinity and race, 23–24 Matsuda, Mari, 105 Mazumdar, Sucheta, 156n. 9 McCarran-Walter Act of 1952, 80, 84, 85 McClain, Charles J., 143n. 53 McGovney, Dudley, 143n. 53 McWilliams, Carey, 71 Meissner, Doris, 147n. 56. See also Operation SouthPAW Mercer, Kobena, 1, 126 Meritocratic thesis, 56–57 Mexican Americans, 13, 32, 84 Michaels, Walter Benn, 3, 12, 120 Miller, Nancy K., 153n. 19 Miller v. Johnson, 144n. 4 Minow, Martha, 154n. 55 Mirikitani, Janice, 159n. 71 Miscegenation: antimiscegenation statutes, 25; white fear of, 14–17, 20–21, 25 Missouri v. Jenkins, 144n. 4 Mitsubishi Corporation, 52 Model minority myth, 53–58; effect on Asian Americans, 39, 53, 55, 56, 58; effect on other racial minorities and poor whites, 55, 58, 132–33; origin of, 54 Mody, Navroze, 40, 50 Motomura, Hiroshi, 143n. 1 Mouffe, Chantal, 6, 32, 34, 42, 129, 130 Multiculturalism, 31, 114

Index | 177 Multiracialism, 133–35 Musser, Charles, 142n. 43 Myoshi, Masao, 142n. 44 NAFTA, 28 Nagel, Thomas, 73 Narrative: debate over its use, 62–63, 65–68; different voice, 62–63 National formation, 31. See also Racial formation National Organization for Women, 120 Nation-form, 5–6 Native Americans, 13, 32, 131 Nativism, 3, 12, 19–20, 21, 30, 51 Nativistic racism, 26, 30–31, 33, 39, 41, 51–53 Naturalization: racial bar to, 4, 11, 79–80 Nazis, 74 New world order, 34 Nguyen, Beatrice Bich-Dao, 161n. 116 Nguyen, Hen Van, and mistaken identification, 95–96 Nguyen, Ngoc Tieu, and mistaken identification, 96 Nicholson, Linda J., 155n. 65 Nintendo, 52 Nisei, 38, 100 Nishimura Ekiu v. United States, 37 Nitz, Michael, 22–25 Oboler, Suzanne, 140n. 8 Office for Civil Rights, 116 Oh, Angela, 58 Oh, Carolyn Jin-Myung, 102–3 Omi, Michael, 29, 31 Operation SouthPAW, 41–42 Oppenheimer, David, 111 Order of Caucasians, 41, 50 Oriental, as group label, 1–2, 5 Orientalism, 5 Oshige, Miranda, 167n. 46 Ozawa v. United States, 11 Ozawa, Takao, 4 Panethnicity, 5 Patterson, Dennis, 154n. 35 Patterson, Orlando, 103 Paulsen, Michael Stokes, 165n. 7 Payson, Kenneth E., 171n. 53 Peller, Gary, 152n. 5

People v. Hall, 79 Perea, Juan F., 140n. 6 Personal Responsibility Act, 36 Petersen, William, 54 Piper, Adrian, 170n. 41 Plato, 72 Plessy v. Ferguson, 31 Pluralism, 30, 31 Political identities, 42, 126–27, 130. See also Identity politics Porterfield v. Webb, 143n. 53. See also Alien Land Laws Posner, Richard, 56, 57 Poststructuralism, 73–75 Poverty rates, 56 Progressives, 20–21 Proposition 187, 36, 40, 129 Purdy, Patrick Edward, 97 Racial cross-dressing, 123–27 Racial formation, 29, 31. See also National formation Racial-sexual policing, 12–13, 24–25 Rahula, Walpola, 151n. 52 Rawls, John, 70 Reconstruction, 14, 81 Redemption, 14 Regents of the Univ. of Cal. v. Bakke, 163n. 19 Repatriation: of blacks to Africa, 17; of Filipinos to the Philippines, 84 Rhode, Deborah L., 155n. 62 Rich, Adrienne, 70 Richards, Renee, 125 Robinson, Jackie, 24, 25, 132, 133 Rockefeller Center, 49, 52 Roediger, David, 18, 19, 110, 122 Rogin, Michael, 18, 21 Rostow, Eugene V., 159n. 70 Runyon v. McCrary, 157n. 31 Rushdie, Salman, 139n. 5 Saito, Natsu, 140n. 6, 165n. 2 Sandrino, Gloria, 170n. 46 San Francisco Police Department and consent decree, 100 Sanjek, Roger, 142n. 36 San Jose Police Department and Asian mug books, 96 San Juan, Jr., E., 3

178 | Index Santayana, George, 49 Saxton, Alexander, 141n. 33 Scalia, Antonin, 32, 123 Scheppele, Kim L., 154n. 40 Schlesinger, Arthur M., Jr., 3, 4, 39, 51, 52 Schuman, Howard, 167n. 56 Seattle Mariners, 49, 52 Segregated schools, 81 Seidman, Steven, 170n. 36 Sexuality: transgressive desire, 15, 17, 20, 23–25 Sherry, Suzanna, 62, 63, 67 Shibata, David, 160n. 93 Showalter, Elaine, 124 Sklansky, David A., 165n. 3 Sloan, Leni, 19 Snake River (Oregon) Massacre (1887), 97 Sokoloff, Natalie J., 167n. 48 South Asians: gender imbalance in early communities, 84; immigrants, 78–79; violence against, 40–41 Spanish-American War, 84 Spelman, Elizabeth, 154nn. 42, 54 Spivak, Gayatri Chakravorty, 168n. 17 Sports as a model democratic institution, 133 Springsteen, Bruce, 114 Steeh, Charlotte, 167n. 56 Stockton Schoolyard Massacre, 97 Stoddard, Lothrop, 30 Stop Immigration Now, 34, 113 Su, Julie A., 161n. 113 Subject position, 2–3, 129 Sumner, Charles, 80 Sunstein, Cass R., 162n. 1 Sweatt v. Painter, 165n. 11 Taguieff, P. A., 29 Tajima, Renee, 7, 13, 21 Takagi, Dana Y., 166n. 32 Takaki, Ronald, 19 Takei, George, 91 Tateishi, John, 159n. 72 Taylor, Jared, 165n. 14 TenBroek, Jacobus, 159n. 70 Terrace v. Thompson, 143n. 53. See also Alien Land Laws Thomas, Clarence, 103, 130 Thornburg v. Gingles, 159n. 63 Tocqueville, Alexis de, 42 Tompkins, Jane, 64, 70

Tootsie, 124 Torok, John Hayakawa, 166n. 19 Treaty of Guadalupe Hidalgo, 13 Tribe, Laurence, 65 Trumbull, Lyman, 80 Tsuang, Grace, 166n. 34 Tushnet, Mark V., 152n. 5 Tydings, Millard, 84 Tydings-McDuffie Act, 84 Unger, Roberto M., 151n. 52 United Mine Workers, 19–20 United States Commission on Civil Rights, 48, 59, 87, 88 United States v. Thind, 11 Valdes, Francisco, 124 Valentino, Rudolph, 14 Van de Kamp, John, 97 Vietnamese, 56 Violence: against Chinese immigrants, 41, 50–51; against South Asians, 40–41, 50; against Southeast Asians, 97; as a unifying force, 95–97; generally against Asian Americans, 49–51 Volpp, Leti, 144n. 7, 164n. 24 Voting Rights Acts, 88, 100, 128 Wallace, Mike, 54 Wang, L. Ling-chi, 159n. 69 Ward, Fannie, 14 Weatherspoon, Floyd D., 165n. 3 Weglyn, Michi, 159n. 70 West, Robin, 102 Westminster School Dist. v. Mendez, 157n. 27 White, James B., 152n. 3 Whiteness: diversity within, 31; and “notyet-white ethnics,” 18, 21; as a unifying ideology, 18–21, 30–31 White supremacy, 19, 32–33, 131 Who Killed Vincent Chin?, 20–21, 25–26 Wildman, Stephanie M., 151n. 47 Williams, Patricia, 13, 65, 66 Wilson, John K., 166n. 22 Wilson, Pete, 94–95 Wilson, Woodrow, 21 Winant, Howard, 29, 31 Wizard of Oz, The, 136, 138 Wong Him v. Callahan, 157n. 29 Woo, Deborah, 150n. 44

Index | 179 Woods, Tiger, 8, 109, 132–35 Workingmen’s Party, 19 World War I, 16 World War II, 36, 38, 77, 87, 89

Yamada, Mitsuye, 55 Yanagisako, Sylvia J., 158n. 44 Yick Wo v. Hopkins, 81, 99–100 Young, Iris Marion, 145n. 21

About the Author

Robert S. Chang is an associate professor of law at Loyola Law School in Los Angeles, California. A graduate of Princeton and Duke Universities, he teaches Asian Americans and the Law, Race, Racism and American Law, Contracts, Property, and Jurisprudence. Before joining the faculty at Loyola, Professor Chang taught for three years at California Western School of Law in San Diego, California, where work on this book was supported by a faculty publication award.

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