The Chinese in the Courts: The Fight for Civil Rights

1. The Chinese in the Courts: The Fight for Civil Rights Asian Americans and the Law Dr. Steiner

24. Stephen Field • Born in Connecticut, Field moved to California in 1849 during its Gold Rush. • Elected to the Supreme Court of California in 1857 • Appointed to the Supreme Court by Abraham Lincoln in 1863 • Field advocated passage of a federal law excluding Chinese from the United States

25. Lorenzo Sawyer • President Ulysses S. Grant appointed Sawyer in 1870 as the first judge of the Circuit Court for the Ninth Circuit. • Sawyer came to California in 1850; he was “most favorably impressed with the Chinese” he met there

26. Ogden Hoffman • The first federal judge in what was to become the Ninth Circuit, Hoffman was appointed by President Fillmore in 1851 as judge of the Northern District of California • Hoffman favored restricting Chinese immigration and thought the Chinese were an inferior race

27. Michael Les Benedict on Laisssez-Faire Constitutionalism

28. Fourteenth Amendment • No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

29. The Queue OrdinanceSan Francisco Evening Bulletin June 2, 1873 • The Board of Supervisors have passed to print an ordinance requiring the cropping of the hair of every person who is serving a term in the jail under a criminal conviction. The ordinance, while it nominally makes no discrimination as to race or condition, is aimed specially at the Chinese. … The Chinese who offend against the [lodging house] ordinance refuse to pay the fine, but go to jail and board it out.

30. The Queue OrdinanceSan Francisco Evening Bulletin June 2, 1873 • The Supervisors, casting about for some means of relief, have hit upon the plan of cropping the hair. White criminals would care nothing about this, and the ordinance would probably never be enforced against them. The loss of a pigtail is a great calamity to the Chinese. It his national badge of honor. If it is cut off he is maimed.

31. Ho Ah Kow v. Nunan (1879) • What had Ho Ah Kow been convicted of? • What would have been the purpose of that law?

32. Ho Ah Kow v. Nunan (1879) • Why did Ho Ah Kow sue Nunan, the sheriff of San Francisco?

33. Ho Ah Kow v. Nunan (1879) • What was the sheriff’s defense to the lawsuit? What argument did the sheriff make? • What was the plaintiff’s response to the sheriff’s argument? What were the plaintiff’s two objections to the ordinance?

34. Ho Ah Kow v. Nunan (1879) • We are aware of the general feeling--amounting to positive hostility--prevailing in California against the Chinese. . . . Their dissimilarity in physical characteristics, in language, manners and religion would seem, from past experience, to prevent the possibility of their assimilation with our people. And thoughtful persons, looking at the millions which crowd the opposite shores of the Pacific, and the possibility at no distant day of their pouring over in vast hordes among us, giving rise to fierce antagonisms of race, hope that some way may be devised to prevent their further immigration.

35. Ho Ah Kow v. Nunan (1879) • Besides, we cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men . . .

36. Ho Ah Kow v. Nunan (1879) • . . . and where an ordinance, though general in its terms, only operates upon a special race, sect or class, it being universally understood that it is to be enforced only against that race, sect or class, we may justly conclude that it was the intention of the body adopting it that it should only have such operation, and treat it accordingly. We may take notice of the limitation given to the general terms of an ordinance by its practical construction as a fact in its history

39. San Francisco Ordinance • The people of the city and county of San Francisco do hereby ordain as follows:Section 1. It is hereby declared to be unlawful for any Chinese to locate, reside, or carry on business within the limits of the city and county of San Francisco, except in that district of said city and county hereinafter prescribed for their location.

40. San Francisco Ordinance • Sec. 2. The following portions of the city and county of San Francisco are hereby set apart for the location of all Chinese who may desire to reside, locate, or carry on business within the limits of said city and county of San Francisco, to-wit: Within that tract of land described as follows: Commencing at the intersection of the easterly line of Kentucky street with the south-westerly line of First avenue; thence south-easterly along the south-westerly line of First avenue to the north-westerly line of I street; thence south-westerly along the north-westerly line of I street to the south-westerly line of Seventh avenue to the south-easterly line of Railroad avenue; thence north-easterly along the south-easterly line of Railroad avenue to Kentucky street; thence northerly along the easterly line of Kentucky street to the south-westerly line of First avenue and place of commencement.

41. San Francisco Ordinance • Sec. 3. Within sixty days after the passage of this ordinance all Chinese now located, residing in or carrying on business within the limits of said city and county of San Francisco shall either remove without the limits of said city and county of San Francisco or remove and locate within the district of said city and county of San Francisco herein provided for their location. • Sec. 4. Any Chinese residing, locating, or carrying on business within the limits of the city and county of San Francisco contrary to the provisions of this order shall be deemed guilty of misdemeanor, and upon conviction thereof shall be punished by imprisonment in the county jail for a term not exceeding six months.

42. San Francisco Ordinance • The ordinance passed by the City of San Francisco required the Chinese to move to an area that had been designated for slaughterhouses, tallow-rendering plants and other businesses considered to be offensive. • Before the ordinance was passed, the Chinese in San Francisco were effectively segregated in Chinatown. • Why would the city pass such an ordinance? • What other choice did the Chinese have in addition to moving to the designated area?

43. Judge Sawyer • The discrimination against Chinese, and the gross inequality of the operation of this ordinance upon Chinese, as compared with others, in violation of the constitutional, treaty, and statutory provisions cited, are so manifest upon its face, that I am unable to comprehend how this discrimination and inequality of operation, and the consequent violation of the express provisions of the constitution, treaties and statutes of the United States, can fail to be apparent to the mind of every intelligent person, be he lawyer or layman.

44. Restrictive Covenants in Seattle • None other than persons of the Caucasian race may live upon or hold title to land in this plat. (1929) • No persons of any race other than the white or Caucasian race shall use or occupy and building or any lot, except that this covenant shall not prevent occupancy by domestic servants of a different race domiciled with an owner or tenant. (1940)

45. Restrictive Covenants in Seattle • No part of said property hereby conveyed shall ever be used or occupied by any person of the Ethiopian, Malay, or any Asiatic race, and the grantee, his heirs, personal representatives or assigns, shall never place any such person in the possession or occupancy of said property, or any part thereof, nor permit the said property, or any part thereof, ever to be used or occupied by any such person, excepting only employees in the domestic service on the premises of persons qualifying hereunder as occupants and users and residing on the premises. (1928)

46. Restrictive Covenants in Seattle • No part of said property hereby conveyed shall ever be used or occupied by any Hebrew or by any person of the Ethiopian, Malay or any Asiatic Race, and the party of the second part his heirs, personal representatives or assigns, shall never place any such person in the possession of occupancy of said property of any part thereof, nor permit the said property, or any part thereof, ever to be used or occupied by any such person, excepting only employees in the domestic service on the premises of persons qualified hereunder as occupants and users and residing on the premises. (1929)

47. Gandalfo v. Hartman (1892) • Covenant in Deed • It is also understood and agreed by and between the parties hereto, their heirs and assigns, that the party of the first part shall never, without the consent of the party of the second part, his heirs or assigns, rent any of the buildings or ground owned by said party of the first part, and fronting on said East Main street, to a Chinaman or Chinamen. This agreement shall only apply to that part of lot 2, block 47, aforesaid, lying north of the alley-way hereinbefore described, and fronting on said East Main street. And said party of the second part agrees for himself and heirs that he will never rent any of the property hereby conveyed to a Chinaman or Chinamen.

48. Gandalfo v. Hartman (1892) • What is the purpose of using a covenant in a deed to specify that a property can’t be sold to a Chinese buyer? • What argument did the private party defending the restriction in the deed make? • Why did this argument fail?

49. Restrictive Covenants and the United States Supreme Court • Corrigan v. Buckley, 271 U.S. 323 (1926) • [T]he prohibitions of the Fourteenth Amendment ‘have reference to State action exclusively, and not to any action of private individuals.’ . . . ‘It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the Amendment.’ . . . It is obvious that none of these amendments prohibited private individuals from entering into contracts respecting the control and disposition of their own property. . . .

50. Restrictive Covenants and the United States Supreme Court • Shelley v. Kraemer, 334 U.S. 1 (1948) • Restrictive Covenant in Missouri Case • the said property is hereby restricted to the use and occupancy for the term of Fifty (50) years from this date, so that it shall be a condition all the time and whether recited and referred to as [sic] not in subsequent conveyances and shall attach to the land as a condition precedent to the sale of the same, that hereafter no part of said property or any portion thereof shall be, for said term of Fifty-years, occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property for said period of time against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian Race.