What’s Behind the Violence against Asians in America
Only a few weeks ago a young man was captured on video knocking down three elderly Asians in Oakland Chinatown. Those attacks came on the heels of an 84 year old Thai gentleman knocked down and killed during his daily walk in San Francisco, and a Filipino elder slashed in the face while on a New York Subway. In its statement about Anti-Asian violence, the Philadelphia Mayor’s Commission on Asian American Affairs announced: “Unfortunately, even here in Philadelphia, there have been verbal and physical attacks, as well as other displays of racism, directed at Asian Americans. In 2020, the Philadelphia Commission on Human Relations (PCHR) received 28 reports of acts of hate against members of the AAPI community—19 were confirmed as incidents of hate or bias, representing 34 percent of the 56 total hate or bias incidents confirmed by the agency.”
Even after past President Donald Trump, with his repeated references to “China virus,” has left office, the stigma of Asian Americans as perpetual foreigners remains. Two erroneous assumptions flow from being stereotyped as “perpetual foreigners:” (1) that we are not entitled to the protections of the U.S. Constitution or the Federal civil rights laws and (2) that we are responsible for the acts or omissions of Asian countries to which our ethnicity is assigned.
The first assumption is unfounded, and Asians have had to serve time behind bars to vindicate those rights. As the U.S. Supreme Court has recognized in Yick Wo v. Hopkins (1886), persons are protected by the equal protection clause of the 14th Amendment to the Constitution. Whether Asian Americans are citizens or not, we are persons entitled to the Constitutional protections. In U.S. v. Wong Kim Ark (1897), the U.S. Supreme Court recognized that persons of Chinese descent born in the U.S. acquired U.S. citizenship under the birthright citizenship provision of the 14th Amendment.
The second assumption derives from the discredited stereotype that we are citizens of the Asian countries regardless of our Asian ethnicity. In Korematsu v. U.S. (1944), the U.S. Supreme Court ascribed dual citizenship to 120,000 Japanese Americans as justification for their evacuation into internment camps. Implicit here is that Asians are all the same, regardless of the country to which our ethnicity is ascribed. We saw this with the 1982 murder of Vincent Chin, who was blamed for the high unemployment in Detroit from the importation of Toyota, Honda, and Nissan cars. Mr. Chin was neither of Japanese descent nor employed by any Japanese manufacturer. His killers Ron Ebens and Michael Nitz never served any time for their acts. Now we see Vietnamese, Cambodians, Filipinos, and other non-Chinese Asians being killed or attacked for the “Wuhan Flu” or the “China Virus.”
Perpetrators of violence and murder against Chinese and Asians going unpunished has longstanding precedent in California Supreme Court Justice Hugh Murray’s opinion in People v. George Hall (1854), where he held that Chinese witnesses could not testify against George Hall for the murder of Ling Sing, because Chinese were “Indians.” Under California’s Criminal Procedure Act of April 16th, 1850, “No Black or Mulatto person, or Indian, shall be allowed to give evidence in favor of, or against a white man.”
Even though Chinese persons were not mentioned in the Act, Chief Justice Murray went beyond the text of the law to include Chinese witnesses: “..the name of Indian, from the time of Columbus to the present day, has been used to designate, not alone the North American Indians, but the whole of the Mongolian race..” George Hall walked free despite three Chinese witnesses to his crime.
Only 17 years later, following a white mob riot in Los Angeles Chinatown, America witnessed the largest mass lynching in U.S. history. The white mob lynched 17 Chinese persons and knifed another two to death. Eight members of the mob were convicted and sentenced to 2-6 years in prison. Upon appeal, the California Supreme Court reversed the convictions and set all eight men free. The perpetual foreigner myth has reinforced the belief that people who commit violence against Asian Americans will not be held to account by the law.
The origin of this perpetual foreigner history is the 1856 Dred Scott v. Sandford decision in which the U.S. Supreme Court held that African American slaves had no rights that the white man was bound to respect, even if they had been freed. The Naturalization Law of 1790 limited eligibility to citizenship to “free, white persons.” Justice Roger Taney interpreted that to mean “that citizenship at that time was perfectly understood to be confined to the white race.” After the Civil War and the passage of the 14th Amendment, African Americans acquired the right to citizenship by birth and the amendment of the 1790 Naturalization Act to include persons of “African nativity and descent.” Mexican Americans acquired the right to citizenship by the Treaty of Guadelupe-Hidalgo after the Mexican American War. Asians inherited the “free white person” bar to naturalization until 1952 with the passage of the McCarran Walters Act. So Asian American history is intimately tied to Dred Scott’s experience of fighting white supremacy.
It is not a question of which racial group suffered more or where you fall on the color chart. According to Justice Murray in People v. Hall, Chinese belonged to “the more degraded tribes of the (Indo-Mongolian) species.” The question is what have you done to raise awareness about the history behind the racist events we experience today and to change the laws and conditions that have enabled hate crimes. Baked into the tariff war started by the previous administration, the anti-China rhetoric, whether for election campaigns or for ostracism of Chinese American scientists, continues to fuel the foreigner stereotype and encourage more violence. The absence of Asian American and Ethnic Studies in our schools directly contributes to what outwardly appears as random violence against Asian Americans. If Asian American lives matter, then our history in the United States belongs in the school books.
Tsiwen Law is an attorney, and adjunct lecturer of Asian American legal history, and a past governor-at large of the Pennsylvania Bar Association.