A Chinaman's Chance (13 page)

Jin ri wei dong mo,

ming zao shi chun fen.

Jiao ti liang nian jing,

tou sha mu lou ren.

Today is the last day of winter,

Tomorrow morning is the vernal equinox.

One year's prospects have changed to another,

Sadness kills the person in the wooden building.

Today busloads of students every week take the ferry across the foggy bay and disembark at Angel Island. They walk the compound, run their fingers through the etched characters in the walls. Students are given assignments to reflect on the poems, to imagine being coached for an interrogation, to search out their own families' records of arrival and processing. Some will reflect later on the lesson. Some might even tell their parents about the experience. Most will not. Most will step back on the ferry and return through the mists and live out the deep irony of our liberty: that in America we are free to forget, that only in America does the phrase “That's history” mean that something need no longer be remembered.

3.

It's the start of Constitution Week in mid-September. I'm in Philadelphia, in a vaulting glass and steel building called the National Constitution Center. Sitting next to me is Benjamin Franklin, getting ready for his speech. Jefferson is somewhere nearby; I just saw him. I look out the window and see a parade of Americans in Revolutionary Era garb with militia colors flying. They are marching across the mall from Independence Hall. They are the Sons of the American Revolution, each man a lineal descendant of our founding generation. They are here to celebrate the 225th birthday of the Constitution.

As the Sons stream in with their spouses, many of them Daughters of the American Revolution, they look like a group that has a routine for events like this. What they don't realize is that in a few minutes, some Chinese guy is going to be leading them in a ceremony they didn't sign up for and aren't sure at first whether to like. To the Sons and Daughters of the Revolution, American citizenship is like a birthright.

But what few people know is that it took a Chinaman to make American citizenship an
actual
birthright. His surname was Wong, although he was American-born—and that would prove to be crucial. In 1890, eight years after Chinese exclusion was enacted, a cook named Wong Kim Ark left San Francisco, the place of his birth, to visit relatives in China. When he returned, he was denied entry, on the idea that he was a Chinese subject to exclusion. He argued—or, rather, his white lawyers argued—that the language of the Fourteenth Amendment's citizenship clause was plain: all persons born or naturalized in the United States are citizens of the United States. Though his parents were Chinese nationals and though the law barred any more Chinese from entering the country, Wong Kim Ark had been born in the United States. His case made its way up the federal courts, and eight years later, thirty years after the ratification of the Fourteenth Amendment, the Supreme Court ruled in his favor.

The Court didn't do so out of a love of the Chinese. There was much antiquarian futzing about in the majority opinion, unearthing ancient precedents from the Saxon tribes of middle Europe and parsing the etymology of the word “jurisdiction.” But in the end the text of the amendment was immovable, and to read it against the Chinese would be, in the words of Justice Horace Gray, “to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.”
That
wouldn't do. And so, in
United States v. Wong Kim Ark,
a race-blind principle of birthright citizenship became the law of the land—and it happened because a Chinese American had exercised his right to seek remedy in a court of law. To test whether America was a nation of its word.

—————

Joseph and Mary Tape were a remarkable American couple. They were pioneers—he an immigrant from China (born Jeu Dip) who started as a milk deliverer and hustled his way into building a thriving business helping other Chinese immigrants navigate American bureaucracy; she a Chinese girl from darkest Shanghai sent to America on a contract of indentured servitude who had run away from her procurers, had ended up in a home for orphans and former prostitutes, had taken the surname of the matron of the home (Mrs. McGladery), had made herself a respectable wife, and now kept an upright Victorian household. They raised their children in a middle-class San Francisco neighborhood, away from Chinatown, counting as friends many prominent whites. At the same time, they were involved in Chinese community associations and spoke out against the very discrimination that made brokers like Joseph necessary (and prosperous). They were among the first Chinese American couples in America to live life as a Chinese American couple, integrated yet not wholly isolated from their roots. But when it came time for their seven-year-old daughter Mamie to begin school, they were utterly shocked when she was barred at the schoolroom door.

The year was 1884. Congress was further tightening the ban on Chinese; Wong Chin Foo was tangling with Denis Kearney. Wong Kim Ark was working in a restaurant in Chinatown. In her subtle biography of the Tapes,
The Lucky Ones
, Columbia University historian Mae Ngai describes how in this period norms and expectations about the visibility and voice of Chinese people were in flux. It was possible for Chinese Americans to live in the very epicenter of the anti-Chinese movement and to use the law, the sword being wielded against them, also as a shield to protect them. Mamie Tape—“That Chinese Girl,” as one headline put it—had been turned away from a school where white girls and boys were being educated. Her parents protested to the school board, but that body and the state's superintendent of public education had firmly upheld the customary and statutory ban on any “Mongolian” child in the San Francisco public schools. The Tapes hired a lawyer, who called Mamie's exclusion a blatant violation of the Fourteenth Amendment's guarantees of equal protection and due process. The Superior Court agreed, and the California Supreme Court affirmed in March 1885.

Hurley v. Tape
today stands as a historical highlight of anti-anti-Chinese litigation, part of a vast tapestry of such cases woven throughout the mid- and late-nineteenth century by many more litigants and advocates than contemporary Americans realize. Chinatown mutual aid associations typically funded the litigation, sometimes with support from Chinese consulates in cities like San Francisco, and enlightened white members of the bar typically represented the plaintiffs. Some cases, like
Yick Wo v. Hopkins
(ordinances designed to put Chinese laundries out of business, even if race-neutral on their face, are invalid if discriminatory
as applied
), are cornerstones of modern constitutional law. Many others are unknown except to legal historians. The index of
In Search of Equality,
Charles McClain's classic study of anti-Chinese law in California, lists dozens of such cases from this period:

Ah Chong, In re

Ah Din, People v.

Ah Fong, In re

Ah Hee v. Crippen

Ah Hund, Welch v.

Ah Ping, In re

Ah Pong, Ex parte

Ah Quan, In re

Ah Sing (Case of the Chinese Waiter)

Ah Wing, In re

Ah Yup, In re

Awa, People v.

Baldwin v. Franks

Case of the Twenty-Two Women

Chae Chan Ping v. United States

Chew Heong, In re

Chin Ah On, In re

Chin Ah Win

Chin Yen, People v.

Chin Tow v. United States
 . . .

And yet the Tapes' victory was in two senses ambiguous. First, the school board had anticipated an unfavorable ruling and as a practical matter bypassed it by creating within the public school system a separate school for “Chinese and Mongolian” children. So although white taxpayers would now have to fund Mamie's education, at least their children wouldn't have to partake of it. This stratagem would later be enshrined by the 1896
Plessy v. Ferguson
ruling, in which the Supreme Court held Jim Crow's “separate but equal” scheme to be a valid form of equal protection.

But the bigger reason why the Tapes' victory was ambiguous is that, as Ngai astutely observes, their argument had rested in part on the claim that they and their children were not actually very Chinese. They had claimed in their depositions that their daughter had had only white playmates since she was a toddler, didn't dress like other Chinese, would “look just as phunny amongst them as the Chinese dress in Chinese look amongst you Caucasians.” Joseph was a Christian and had cut off his queue fifteen years earlier, and they took formal family portraits together “in the American costume.” They were, in sum, the very model of a would-be white family.

This, of course, was a devil's bargain—a claim that their assimilation should trump their ancestry, that their choice of white cultural norms should outweigh their unchosen genotype. It was a gambit not uncommon in their times, this declaration, in Ngai's apt phrase, “of mistaken identity.” Homer Plessy, the African American passenger barred from a white train car in Louisiana, had himself made the double argument that a whites-only segregation policy violated his equal protection rights as a black man and that, moreover, he didn't look black.

Sometimes courts were silent on the question of just how colored a plaintiff was perceived to be. Other times, they weighed in with great certainty about the demarcation of race and caste, opining that a South Asian, though Caucasian, could not possibly be white, or that someone a quarter black was irredeemably black. In Mamie's case, the court was silent on the Tapes' not-really-Chinese claim, basing its ruling entirely on equal protection grounds and state law. But in the Tapes' earnest brief were all the tensions of being the most liked of the despised: an unstable oscillation between claiming to be, on the one hand, Americans who happened to be Chinese and, on the other, Americans in spite of being Chinese. This was an age when thesis and antithesis sat side by side without any imminent prospect of synthesis. It was an age when “equal protection of the laws” could be at once sanctified and defiled. Mr. and Mrs. Tape, in reaching to transcend their Chineseness, underscored it; in asserting their Americanness, redefined it. Securely insecure, they are every Chinese American's progenitors.

4.

A sampling of the headlines in the
New York Times
about Wen Ho Lee, from March 6, 1999, through October 4, 2000:

Breach at Los Alamos: A Special Report; China Stole Nuclear Secrets for Bombs, U.S. Aides Say

U.S. Fires Scientist Suspected of Giving China Bomb Data

An Earlier China Spy Case Points Up Post–Cold War Ambiguities

Though Suspected as China Spy, Scientist Got Sensitive Job at Lab

China Spy Suspect Reportedly Tried to Hide Evidence

Suspect in Atom Secrets Case Publicly Denies Aiding China

Lee's Defenders Say the Scientist Is a Victim of a Witch Hunt About China

Scientific Groups Complain to the Attorney General About Treatment of Weapons Scientist

Files in Question in Los Alamos Case Were Reclassified

Justice Dept. Replaces Top Prosecutor in Nuclear Secrets Case

Discrimination Inquiry Begun at Weapons Lab

FBI Agent Gave Faulty Testimony in Weapons Case

Accused Scientist to Go Free on Bail in Los Alamos Case

Judge Doubts U.S. Claims Against Scientist

A Vanishing Security Case

Judge Attacks U.S. Conduct

Clinton Criticizes Officials' Actions Against Scientist

Reno Orders Internal Inquiry into Handling of Secrets Case

Officials Disagree on How Lab Scientist Became Spy Suspect

At a glance, this list of headlines suggests an arc—of betrayal, then of redemption; from accusation to exoneration. What a list like this does not capture, though, is the relative size, space, and placement—on the page and in the civic psyche—these various headlines occupied at various times. There was a straightforward progression: as time went on and the explosiveness of the initial headlines proved illusory, as the administration began to backtrack, the headlines shrank, and the stories fell off the front page.

Wen Ho Lee spent nine months in pretrial solitary confinement. He was nearly sixty when his detention began. He had been a naturalized citizen of the United States for twenty-five years. He was kept in shackles for all but one hour every day. Still, he fought the system. He had lawyers and advocates combating the media-political shadow conspiracy to smear him. He sued the federal government. He sued the newspapers.

In the end, every charge but one was dropped. He accepted a plea agreement in which he admitted to mishandling of sensitive documents and was sentenced to time served. The newspapers paid him a settlement to end his litigation against them. But that news was a whisper compared to the screams of disloyalty that had introduced him to his compatriots. And the only apology at the end of his case came not from his persecutors in the justice system or at the
New York Times
but from the federal judge in the final ruling on his case—Judge James A. Parker, appointed to the US District Court for the District of New Mexico by President Ronald Reagan in 1987. Judge Parker said:

Dr. Lee, you're a citizen of the United States and so am I, but there is a difference between us. You had to study the Constitution of the United States to become a citizen. Most of us are citizens by reason of the simple serendipitous fact of our birth here. So what I am now about to explain to you, you probably already know from having studied it, but I will explain it anyway.