Echoes of old debates


“We think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid.”

“Even aliens shall not be held to answer for a capital or other infamous crime unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.’”

— Wong Wing v. United States, 1896

The four men had traveled thousands of miles to come to the United States. Perhaps they were looking for work. Perhaps they had come to find a better life. But whatever their motives, one thing was clear — they had come in violation of specific federal laws governing immigration. And their timing could not have been worse.

They arrived in the United States in the midst of a political firestorm over the issue of illegal immigration. At the time of their arrival, there was ongoing debate about the extent of the authority of state and federal governments to bar entry to the country based solely on race or national origin, and the president had just signed controversial legislation on that topic.

Under that new federal act, the presence of these four men in the United States was a crime. Because their infraction was one of immigration law, and because they were not American citizens, they were not charged in a criminal court, but rather appeared before a non-judicial official. That official ordered them locked up in a labor camp for 60 days, and then returned to their country of origin.

Those facts sound like they could be taken right from today’s news, but they date back 125 years to the late 19th Century. And one of the men, Wong Wing, sought a writ of habeas corpus and eventually had his case decided by the United States Supreme Court.

Their case is fascinating not only for what it says about the immigration debate of the 1890s, but also for the law that it created and how portions of those court decisions support each side of the immigration debate today.

Chinese immigration to the United States began to soar following the California gold rush. Particularly in California, the issue of migrant Chinese workers became a hot-button political issue of the day, with some blaming the Chinese workers for driving down wages and increasing crime, and others claiming that they were merely hard-working people seeking a better life, persons whose labor was necessary for the workforce.

Eventually, California adopted legislation seeking to control Chinese immigration to the United States. The federal government followed suit, with President Chester Arthur signing the ‘Chinese Exclusion Act’ in 1882. The original act set a 10-year period in which Chinese workers were prohibited from entering the United States. If they did so, they were subject to a period of incarceration and then deportation. It was the first time the federal government had ever banned a specific group based on race or national origin.

Legal challenges arose, and the Supreme Court, on more than one occasion, ruled that controlling the flow of persons into the country was an exclusive power of the legislative and executive branches of government. The court went so far as to hold that even those Chinese workers who had previously been given permission to enter the United States could now have that permission revoked under the 1882 act.

But the court drew the line when it came to criminal penalties for illegal immigration. Deportation was one thing, and confining persons during the deportation process was approved by the court in 1893 as a necessary part of that process. But conviction of a criminal offense and imprisonment for that conviction specifically implicates the provisions of the 5th, 6th and 14th amendments to the United States Constitution. As such, the court ruled that no person, be they a citizen or not, can be convicted of a crime and punished for it without receiving due process of law.

The Chinese Exclusion Act was repealed in December of 1943. But the immigration debate that swirled around it reverberates to this day. Little is known of what happened to Wong Wing after his deportation, but his name remains on the lips of legal scholars today. Both the ACLU and Human Rights Watch in their arguments against current immigration policy, and the federal government in its legal briefs supporting the current policy, cited his 122-year-old case.

The full text of Wong Wing v. United States can be found in multiple sources online by simply typing the name of the case into any search engine.

By David Hejmanowski

Contributing columnist

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas and vice president of the Board of Trustees of the Central Ohio Symphony.

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