Immigration Article of the Day: A Heritage of Bias: From Naturalization and Immigration Laws in the Late 19th to Early 20th Centuries to Contemporary Bias Against Muslims and Latines  by William D. Popkin

A Heritage of Bias: From Naturalization and Immigration Laws in the Late 19th to Early 20th Centuries to Contemporary Bias Against Muslims and Latines  by William D. Popkin 10 Indiana Journal of Law and Social Equality 340 (2022)

Abstract

Part I describes the links between contemporary bias against Muslims and Latines and its historical roots. The groups whom Americans fear change, but the script is the same. The rationales for limiting who could be naturalized as American citizens and who could immigrate to this country in the late 19th and early 20th centuries are similar to the rationales given for discriminating today against Muslims and Latines. These reasons fall into two broad categories: empirically-identifiable traits which (presumably) made assimilation into American culture difficult if not impossible; and a normative conception of who should be Americans.

The legal embodiment of this heritage of bias can be traced to a 1790 federal statute stating that only free white persons could be naturalized. Initially, whites included the northern and western Europeans who were the bulk of the U.S. population in 1790. But the arrival of new immigrants from Ireland, China, Japan, India, and southern and eastern Europe between the middle of the 19th, and early decades of the 20th century put immense pressure on the legal definition of “white” as well as on the political response to changing immigration patterns.

Part II provides a brief review of the interpretive approaches that courts used to define “white” (textualism vs. intentionalism). Most important is the “functional textualist” approach to defining statutory language, because that allowed the historical text to adapt to new circumstances—in this instance to adapt “white” to include at least some new immigrants who were considered able to assimilate into American culture.

Part III of the Article describes the negative political and legal reactions to the arrival of different groups of immigrants. Those reactions emphasized the difficulty that these immigrants had in assimilating into American culture. Each of these groups endured negative stereotypes, but Asians were treated worse than Europeans. Unlike Europeans, Asians were denied the right to become naturalized American citizens and were prevented from immigrating into the United States because they were not white. By contrast, Europeans were always considered white and were never barred from immigrating, although they were subjected to severe quota restrictions. Part IV compares the more favorable treatment of southern Italians with the less favorable treatment of Asian Indians, despite southern Italians faring no better and sometimes worse on criteria relevant to assimilation. A contributing factor in making this distinction was the assumption, associated with the eugenics movement, that Asian Indians were a different species who were genetically incapable of assimilating. But there was something else at work that disfavored Asian Indians—a normative judgment that the country should remain a homogenously white nation by favoring Europeans over Asian people of color.

The Article concludes with a reminder that restrictive assumptions about who can assimilate and who deserves to be an American persist. Bias against Muslims and Latines is simply the modern version of bias against Asian people. These patterns of thought are as embedded in the American psyche as the inclusive ideals that we profess. The hope of this Article is that remembering our history will give us a better chance of attaining those ideals than simply bathing in the warm glow of a past that never was.

KJ