Elusive Equality: Reflections on Justice Field’s Opinions in Chae Chan Ping and Fong Yue Ting

For immigration scholars, Justice Field is perhaps best remembered for his majority opinion in Chae Chan Ping v. United States, the Supreme Court’s decision upholding Chinese exclusion, and credited for introducing the plenary power doctrine to immigration law. Yet, despite the opinion’s xenophobic rhetoric reflecting his personal views of the Chinese, Justice Field dissented in Fong Yue Ting v. United States, reasoning that, once they became lawful residents, the Chinese were entitled to be treated as equals under the law regardless of citizenship, a position supported by his earlier federal circuit court opinion in Ho Ah Kow v. Nunan. Regardless of one’s particular views of his opinions in these cases, it appears Field sought to balance his unfavorable personal and political views about mass Chinese immigration against his duty as a federal judge to uphold the constitutional rights of individual persons within the United States, regardless of their race and citizenship, before Congress’s plenary power. This tension between viewing immigrants as an undifferentiated mass and recognizing each immigrant as a person worthy of constitutional protection pervades contemporary debates regarding immigration today. Further, research in social psychology suggests that, within immigration policy, seldom will personhood trump membership as an organizing principle when benefiting noncitizen outsiders is perceived to come at the expense of U.S. citizen insiders. Put another way, immigration law presumes differences among citizens and noncitizens and creates others among noncitizens; thus, while it is already difficult to extend the circle of empathy beyond family and friends to strangers, it is particularly difficult to do so within a field like immigration law, which is designed to maintain boundaries between citizen and “alien.” Nonetheless, recognizing and working within these constraints, immigrant rights advocates would do well to emphasize and guard against our inherent parochialism, as Field appeared to do in Fong notwithstanding his opinion in Chae