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date: 08 May 2021

Law and Asian American Literary and Cultural Studiesfree

  • Stewart ChangStewart ChangUniversity of Nevada, Las Vegas


The place of Asian Americans in the American national narrative has always been mediated through the laws, particularly relating to citizenship and immigration. In the 19th century, Asian Americans were marginalized and omitted from the national narrative through discriminatory laws that excluded them from naturalized citizenship, civic participation, and eventually immigration. During this era, Asians were stereotyped in literature and popular culture as threatening menaces that required restriction and surveillance, which was later exacerbated by the hostilities between the United States and Japan during World War II. Asian American writers during this era sought to challenge the stereotypical representations of Asians and provided voice to the silences produced by the discriminatory laws. Following World War II, as the United States redefined itself as the leader of the free world during the Cold War, the discriminatory laws were reformed, and Asian Americans were reconstructed into a model minority that now served the dominant narrative of America as a nation of equality and opportunity. Asian American authors in this era resisted such co-opting of Asian American experiences by writing counter-histories that challenge the grand narrative of American exceptionalism produced by seemingly progressive laws that these authors critique as reifying and perpetuating racist and xenophobic biases that continue to be applied to not only Asian Americans but also other minority groups.

As a nation constituted on the founding pronouncement, “We the People,” the narrative of the American nation is invariably tied to how citizenship is defined, both legally and discursively.1 Asian Americans have always occupied an ambiguous space within the American body politic, caught between competing discourses of inclusion and exclusion that have been determined as matters of law, primarily in respect to citizenship and immigration. As Lisa Lowe has observed,

In the last century and a half, the American citizen has been defined over against the Asian immigrant, legally, economically, and culturally. These definitions have cast Asian immigrants both as persons and populations to be integrated into the national political sphere and as the contradictory, confusing, unintelligible elements to be marginalized and returned to their alien origins.2

This article considers how Asian Americans have been ascriptively constructed in American law to serve as cultural foils to American citizenship and silenced in the process. In the 19th century, Asians were ostracized as a threatening foreign element requiring regulation and exclusion. In the 20th century, Asians were reconfigured as a model minority emblematic of the American dream to justify continued racial hierarchies elsewhere. This article identifies works of Asian American writers that provide counternarratives and counter-histories that respond to, assess, and critique the narratives that law produces, and considers how their writings seek to reclaim and re-imagine the place of Asian Americans in the American political and cultural landscape.

The silencing of Asian American subjects has been accomplished primarily through laws that sought to exclude them from rights of American civic membership, including immigration, naturalization, marriage, and property ownership.3 Perhaps the earliest example of such divestment occurred with the literal silencing of Asian American witnesses as a matter of law in People v. Hall (1854), where the California Supreme Court ruled that Chinese witnesses were barred from offering testimony against white citizens in court.4 George Hall had been found guilty for the murder of Chinese miner Ling Sing based on testimony of Chinese witnesses; the Court overturned his conviction by reasoning that California laws prohibiting African Americans and Native Americans from testifying against whites also extended to Asian foreigners. In the same way that Dred Scott v. Sandford (1857) attached inferiority to race to divest African Americans of the right to citizenship and the right to sue in court, People v. Hall employed the same rhetoric of racial inferiority to reason that Asian Americans should not be given the “right to swear away the life of a citizen” in court or any rights to civic participation.5 Whereas People v. Hall rendered the Asian community voiceless in the legal arena, the Naturalization Act of 1790, which limited the right of naturalized citizenship to free white persons, also ensured that Asian Americans would remain politically voiceless. By being rendered unable to speak for themselves within the civic realm, Asian Americans could be racialized and constructed into what Rey Chow describes as an “ethnic specimen,” a monolithic representative of a static foreign culture to be observed, scrutinized, and ultimately regulated.6

Critical race theorists such as Richard Delgado have identified the ways in which dominant culture produces a grand narrative about itself at the expense of marginalized minorities whose “voice and perspective—whose consciousness—has been suppressed, devalued, and abnormalized.”7 From the founding of the nation, the dominant culture has woven a myth of America as an exceptional nation of equality and opportunity, even while systematically excluding certain racial groups—enslaved African Americans, displaced Native Americans, and immigrant Asians—from that national narrative. Thus, critical race scholars look to counternarratives from these oppressed communities to confront and rebut myths created by dominant mainstream culture; as Margaret Chon describes, “outsider jurisprudence, whether grounded in class, gender, race or sexual orientation, has unambiguously interpreted the silence of the outsider as an ‘absence.’ Hence what makes storytelling distinctive methodologically is its emphasis on giving voice to the subaltern, the previously silent and therefore ignored or devalued legal subject.”8 For Asian American writers, storytelling becomes a means of reclaiming not only voice but also a better sense of Asian American collective culture silenced through legal mechanisms. Lisa Lowe suggests that

culture is the terrain through which the individual speaks itself as a member of the contemporary national collectivity, but culture is also a mediation of history, the site through which the past returns and is remembered, however fragmented, imperfect, or disavowed. Through that remembering—that recomposition—new forms of subjectivity and community are thought and signified.9

For counternarratives, many critical legal scholars, such as Mari Matsuda, look to “the actual experience, history, culture, and intellectual tradition of people of color in America.”10 But one distinctive obstacle for the Asian American community is the paucity of historical narratives due to many years of legal exclusion. Thus, Asian American writers have become important in creating culture and tradition for Asian American communities, which includes filling in the gaps caused by exclusion.

The Period of Exclusion: Absences and Silences

Asians did not begin immigrating en masse to the United States until the mid-19th century, largely in response to demands for unskilled laborers on projects such as the transcontinental railroad. The Chinese were the first significant group from Asia to immigrate to the United States. Because the work available to Chinese immigrants required hard and often dangerous physical labor, most recruited during this period were young, able-bodied men who came without families. Although the US government initially facilitated commerce and immigration exchange with China through the Treaty of Tianjin in 1858 and the Burlingame–Seward Treaty in 1868, Chinese laborers were eventually regarded as threatening to white labor. This was further exacerbated with the completion of the transcontinental railroad in 1869 that left approximately 10,000 Chinese laborers without work. As the United States suffered an economic recession during the years following, the Chinese were blamed for American unemployment. Initially perceived as an issue pertaining only to California, the movement for Chinese exclusion escalated to the national level as Chinese laborers were brought in to break strikes on the East Coast. At the same time, Chinatowns were condemned as sites of rampant vice, including opium use, gambling, and prostitution. This led to the stereotyping of Chinese as a “yellow peril”—foreign outsiders who threatened not only American labor but also the very moral fabric of America.

The first targets for discriminatory immigration legislation were Chinese women. While Chinese men were initially ostracized as threats to white labor, Chinese women were demonized as depraved prostitutes who threatened to sexually pollute the American family unit.11 The public policy shift toward prostitution made the “Chinese problem” less an issue of labor competition and more an issue of public morality. As a result, Congress enacted the Page Act of 1875 as the first federal law restricting immigration. The Page Act prohibited entry of immigrants deemed undesirable by Congress, including contract laborers, convicts, and prostitutes. Though worded in ways that were racially neutral, the Page Act was applied discriminatorily and effectively excluded virtually all Chinese women by presuming they were prostitutes. In 1870, prior to the enactment of the Page Act, 7.2 percent of the Chinese population in the United States was female; by 1890, that number had dropped by half, to an almost nonexistent 3.6 percent.12 The restriction on entry for Chinese women, in combination with existing antimiscegenation statutes that prohibited nonwhite minorities from intermarrying with whites, effectually blocked family formation and reproduction for Chinese immigrant men who had come earlier. These Chinese men were effectively condemned to perpetual bachelorhood while in the United States. Congress subsequently passed more restrictive legislation to halt all Chinese immigration with the Chinese Exclusion Act of 1882.

The justification for Chinese exclusion centered on constructions of the Chinese as a sexually deviant culture of bachelors, particularly in comparison to mainstream white families. In their official report to Congress, the Joint Special Committee to Investigate Chinese Immigration declared, “Family-life is a great safeguard to our political institutions” and found that “Chinese immigration involves sordid wages, no public schools, and the absence of the family” and that “the Chinaman is an adult male who has no wife, no family, no child. Our white laborers are, as a rule, married, and fathers and heads of families.”13 The committee also asserted that Chinese women “are all prostitutes or concubines, or second wives [who] are shipped here against their will and sold by their parents for this thing in China.”14 The committee concluded, “I think we shall be able to show, literally, that there is not a family, as we understand the honorable and sacred relation of the family tie, among the Chinese in the whole State, or on the entire coast.”15 As a result of the report, Congress passed the Chinese Exclusion Act in 1882, which was subsequently renewed and expanded in 1884, 1888, and 1892. The attitudes of Congress regarding the Chinese reflected popular stereotypes of Asians as a menacing yellow peril, later commercialized and disseminated in Sax Rohmer’s fictional character Fu Manchu and the accompanying trope of the “dragon lady.”16

The issue of Chinese exclusion eventually led the Supreme Court to solidify the doctrine of plenary power—or the absolute authority of Congress—over immigration. In Chae Chan Ping v. United States (1889), the Supreme Court held that plenary power allowed Congress to exclude categories of people it deemed undesirable for any reason, including race.17 In Fong Yue Ting v. United States (1893), the Supreme Court held that plenary power also extended the ability of Congress not only to exclude but also to deport.18 In Chae Chan Ping, the court mirrors the same rhetoric of assimilation that Congress had employed in its justification for exclusionary legislation, remarking how the Chinese

remained strangers in the land, residing apart by themselves, and adhering to the customs and usages of their own country. It seemed impossible for them to assimilate with our people, or to make any change in their habits or modes of living.19

The court, however, weaves the issue of nonassimilation into the rhetoric of national security as it draws a strong link between foreign affairs and immigration control. The court characterizes the Chinese as “vast hordes . . . crowding in upon us” and reasons, “if, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.”20

The Chinese Exclusion Act effectively stopped the migration of unskilled Chinese laborers, but demand for unskilled immigrant labor on the West Coast persisted. With the South devastated by the Civil War, the then separate nation of Hawai’i became the primary source of sugar for the United States, which created a spike in demand for laborers to work the plantations. Since Hawai’i followed the United States in instituting its own Chinese exclusion law, immigrants largely from Japan and the Philippines came in significant numbers to work the plantations, and they generally followed the same gendered migration patterns as the Chinese of being predominantly single men in the initial wave. After the annexation of Hawai’i as a US territory in 1900 and the passage of Organic Law that invalidated all labor contracts on the island, many of the Japanese and Filipino immigrants in Hawai’i moved to the mainland. And they eventually became significant contributors in the farming industry along the Pacific Coast. These new immigrants also became targets of racism and xenophobia, leading to further restrictive immigration laws that targeted them by race.

The Immigration Act of 1917 created the Asiatic Barred Zone that covered a larger portion of Asia, the Immigration Act of 1924 barred all immigrants ineligible for naturalization including almost all Asians, and the Tydings–McDuffie Act of 1934 reclassified Filipinos from American nationals into immigrants ineligible for entry. These immigration restrictions affected the demographics of the early Asian American community—many of the early Asian ethnic communities in the United States were first generation, with a noticeable absence of women except for the Japanese American community.21 Because of their atypical family structures due to these laws, Asians were further demonized as a deviant and unassimilable foreign menace, which led to the proliferation of racist stereotypes in popular culture and literature. Yellow peril narratives in American literature such as Pierton Donner’s Last Days of the Republic and Jack London’s “The Unparalleled Invasion,” and villainous portrayals of Chinese in other English literature, such as M. P. Shiel’s The Yellow Danger and Sax Rohmer’s The Mystery of Dr. Fu-Manchu, helped justify discriminatory treatment of Asians in the public imagination. Early Asian American authors writing in the era of exclusion gave voice to a population silenced under restrictive discriminatory laws. Though Asians were stereotyped as sexually depraved, semiautobiographical stories from writers such as Younghill Kang and Carlos Bulosan illustrate how the Asian bachelor societies that were demonized in white mainstream culture constituted a phenomenon particular to Asians in America rather than true of Asians generally.

East Goes West: The Making of an Oriental Yankee is a fictionalized autobiographical account of Younghill Kang’s experiences and his struggle to assimilate to American culture. The main character, Chungpa Han, is a Korean immigrant who enters the United States in the 1920s “just in time before the law against Oriental immigration [referring to the 1924 Act] was passed.”22 Arriving in New York with only four dollars, a suitcase full of Shakespeare’s plays, and hopes of achieving the American Dream, he holds to an idealized vision of America as the land of plenty and opportunity. Rather than be a rags-to-riches story that reifies the idea of the United States as a land of equality, assimilation, and upward mobility, the novel accounts Han’s disillusionment with the mythic narrative of the American Dream, as he finds opportunity after opportunity closed to him. American high society is interested in him not for his literary or intellectual capacity but merely for his menial labor. Han is indeed made into an “Oriental Yankee,” a man who can never gain full membership in either hemisphere—an exiled “Yankee” in the eyes of the East and yet a perpetual “oriental” foreigner in the eyes of the West.

Kang’s critique of the exclusion of Asians from the American Dream figures prominently in his depictions of failed romantic relationships. In the United States, Han meets and befriends fellow Korean expatriates To Won Kim and George Jum; the trio’s romantic pursuits become emblematic of how Asian American male assimilation is intermediated through romantic desire for white women. Jum is characterized by his infatuation with white women, which goes unrealized until he finally settles for a Korean American wife, saying in the end, “I have not failed. I have only not succeeded.”23 Ironically, Jum’s ending is the most positive of the three. Kim’s failed pursuit of a white woman ends more tragically, in his suicide. Han’s own brief pursuit of Trip, an American white woman, culminates in the two being stopped by a plainclothes policeman in Chinatown to see if she is being kidnapped by a Chinese gang member. The relationship goes nowhere, as Trip departs without giving Han her address, leaving him companionless and isolated. Many states had antimiscegenation laws that prohibited Asian men from marrying white women, and thus any hope of family life for Asian immigrant men would be with Asian women, who were themselves few and far between due to the earlier antiprostitution immigration laws. In this respect, Jum indeed represents the best fate for the Asian male immigrant subject—not failing but never truly able to succeed.

Carlos Bulosan explores the same theme in his semibiographical novel, America Is in the Heart. Elaine Kim suggests that Bulosan’s fascination with the topic of interracial relationships is more symbolic than sexual. For the Filipino immigrant, “marrying a white woman would free him from sexual oppression and emasculation, give him the possibility of a stable family life and at least partial entry into the mainstream of American life.”24 In other words, for Bulosan, the white woman becomes the figure for the American Dream. Like Han in Kang’s novel, Bulosan’s protagonist Allos has been fed the same idealized narrative of American democracy, yet over the course of the novel, he, too, becomes disillusioned. Being denied access to family relationships is only one among a litany of exclusions Filipino Americans endured, as reflected in the questions asked by attendees at the Communist meeting: “Why can’t we marry women of the Caucasian race? And why are we not allowed to marry in this state? Why can’t we practice law? Why are we denied the right of becoming naturalized American citizens?”25 At the end of the novel, however, rather than become completely disillusioned, Allos declares that he still idealizes America and that “no man could destroy my faith in America that had sprung from all our hopes and aspirations, ever.”26 As in relationships with white women, Allos may love the idea of America and what it stands for, but he can never truly attain it. However, rather than reject her, he continues to love her and place his faith in her.

In this respect, Bulosan’s ending is hopeful in suggesting that though the realities of life in America for the Asian immigrant may be bitter, the ideal of America is still worth believing in. The place of the minority writer is to not only counter the dominant narrative and expose its fictions but also to add to that narrative and contribute to its growth and evolution. Though external realities produced by legal restrictions silence and render the immigrant perspective invisible, works from Asian American writers such as America Is in the Heart and East Goes West seek to reclaim visibility and propose that the immigrant dream for a better America is as important to the national narrative as the dominant narrative. American equality may not be actualized, but it is in the heart and imagination of every immigrant. Similarly, the ending of East Goes West may be bleak, with Han imagining himself holed up in a cellar with African Americans awaiting a gruesome death by burning at the hands of a racist mob. He had dreamed of America as a land of equality and opportunity for immigrants, only to be denied access to the privileges of whiteness, as he is lumped together with other minorities because of race. In this way, East Goes West suggests that Asian Americans are not permitted to aspire to equality with whiteness but share more commonality with African Americans who were historically denied rights to citizenship, marriage and family control, free labor, and self-determination. Yet Kang’s critique of his exile in America may still be hopeful. Kang had earlier written in his first novel, Grass Roof, “The poet alone has no home nor national boundary,” and at the end of East Goes West, Han interprets his dream of death by fire as the possibility for reincarnation into a better existence.27 Through this, Kang suggests that even though the outlook for Asian Americans was bleak at the time of his cultural milieu, he as an artist is capable of imagining a future for an American identity that can abolish legal classifications of race and nationality.

In this respect, Asian American writers illustrate the potential of imagination to test and challenge the limitations of law in producing a national narrative and engage in collateral nation building from an outside perspective. The existence of Chinese paper sons during the era of exclusion demonstrates the potential of the immigrant imagination to not simply circumvent the law but also expose the fictive nature of nationality and citizenship. United States v. Wong Kim Ark (1898) ruled that under the Fourteenth Amendment, birthright citizenship extended to Chinese individuals born in the territorial United States.28 Thus, despite racial restrictions for naturalization, Chinese individuals could obtain citizenship by birth. The 1906 San Francisco earthquake and resulting fire destroyed government birth records in the city. Because there were no records to indicate otherwise, Chinese immigrants could assert that they were born in the United States to claim citizenship. Maxine Hong Kingston references this practice in China Men, where she mentions, “an authentic citizen, then, had no more papers than an alien. Any paper a China Man could not produce had been ‘burned up in the Fire of 1906.’ Every China Man was reborn out of that fire a citizen.”29 The phenomenon of paper sons represented an imaginative means by which the Chinese in the United States could virtually procreate and produce children in the midst of being physically unable to reproduce due to immigration prohibitions that kept Chinese women out and antimiscegenation statutes that prevented them from marrying interracially in the United States. The creation of paper sons was an exercise in narrative imagination that attempted to bend reproduction beyond science and genetics.30

In order to curtail the practice of paper sons, the US government used Angel Island as an immigration station between 1910 and 1940 to detain and screen entering Chinese immigrants in order to determine the veracity of their documents. Some of the earliest examples of Chinese American poetry were written by detainees of Angel Island, who etched their thoughts and experiences upon the wooden walls of the barracks. The poems were transcribed and translated in the collection Island in 1980 but were permanently preserved as historical artifacts with the Angel Island Immigration Station Restoration and Preservation Act of 2005. Though the words now commemorating Angel Island adhere to the dominant narrative of the United States as a land of opportunity, casting the immigration station as a “great symbol of the perseverance of the immigrant spirit and of the diversity of this great Nation,” the words inscribed on its walls present a different story.31 One poem, for instance, reads, “Even while they are tyrannical, they still claim to be humanitarian. / I should regret my taking the risks of coming in the first place.” As Sau-ling Cynthia Wong observes, “The angry and poignant voices of these early Chinese immigrants constitute a powerful counterdiscourse to the myth of America as a nation open to all immigrants.”32 The experiences described in the etchings by these early immigrants, who may not have been able to enter the country and set roots, also preserve a history for Asian Americans that would otherwise have been consigned to oblivion and silence.

World War II and Japanese Internment: Coercion, Assimilation, and Silence

The experiences of early Japanese Americans in the United States differed sharply from those of other Asian ethnic groups, largely as a result of American foreign policy interests during the early 20th century. The competition between the United States and Japan as rivals for the colonization of the Pacific led first to a series of mutually negotiated agreements before open hostilities finally erupted between the two countries. To avoid early tensions, the United States agreed to recognize Japanese colonial interests in Korea, and Japan agreed to recognize American colonial interests in the Philippines with the Taft–Katsura Agreement in 1905. As resistance to Japanese immigration rose on the domestic front, the United States sought a diplomatic solution by entering into the Gentlemen’s Agreement in 1907, where Japan agreed to cease issuing travel documents for unskilled laborers; however, in exchange, the United States permitted the entry of wives of Japanese men already residing in the United States. Through the importation of “picture brides” during this era, Japanese Americans were able to avoid the same bachelor community fate of other Asian immigrant groups, as they were able to form families and establish lives for themselves on the American West Coast. These families, however, would be shattered by the outbreak of war between the United States and Japan. Following the attack on Pearl Harbor, President Franklin Roosevelt issued Executive Order 9066, which enabled the military to evacuate all people of Japanese descent, including citizens, to internment camps.

Internment and the Supreme Court decisions that deemed the government’s actions against the Japanese American community constitutional exacerbated the cultural divide between second-generation Nisei Japanese Americans born in the United States and their first-generation immigrant parents. This divided Japanese Americans with regard to whether to choose resistance or advocate assimilation during and after the war. First, the Japanese American Citizens League urged the Japanese American community to comply peacefully with the evacuation and relocation orders as evidence of their loyalty. Resisters to internment such as Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui, who took their cases to the Supreme Court, were ostracized and rejected by their community rather than seen as trailblazers and role models. As part of the recruitment process, Japanese Americans were required to complete a loyalty questionnaire; the last two questions, numbers 27 and 28, asked if individuals would be willing to serve in the armed forces and if they would swear loyalty to the United States and foreswear loyalty to Japan. Like the internment resisters before them, these “no-no boys” who answered no to both questions on the loyalty questionnaire were rejected by their communities as troublemakers and traitors. Conversely, some Nisei men demonstrated their US patriotism through their willingness to join the American armed forces.

The legal case that effectively ended internment, ex parte Endo (1944), employed an assimilationist strategy.33 Unlike Korematsu, Hirabayashi, and Matsui, Mitsuye Endo complied with evacuation and internment. Her trial brief stated that she was a citizen loyal to the United States and only the United States and that her brother was serving in the US military.34 The Supreme Court ruled in her case that although the government had the power “to detain other classes of citizens, it has no authority to subject citizens who are concededly loyal to its leave procedure.”35 The same day, however, the Supreme Court issued its decision in Korematsu v. United States (1944), which upheld Korematsu’s criminal conviction for evading internment.36 As Don Tamaki explains, the Korematsu ruling sent a strong message to the Japanese American community: “The lesson was real clear. And that was anything that made you different, anything that attached you to being a minority . . . got you in trouble to the point that you could lose your freedom . . . the idea was to become as American as fast as you can . . . and put all that ethnic baggage aside.”37

In the postwar period, many Japanese Americans followed this strategy. After his release, Korematsu moved on with his life—he got married, had children, devoted himself to his work, and never talked about internment—to the point that his own children did not learn about his Supreme Court case until they read about it in high school. Natsu Taylor Saito recalls, “In the 1960s, the Japanese American internment appeared to be an aspect of history on the verge of being erased. Most surviving internees were adamant in their silence, and only the informed knew where to find those histories that had been written.”38 By adopting a largely assimilationist strategy, Japanese Americans tacitly acceded to the construction of Asians as a model minority “deemed praiseworthy for their supposedly patient, docile, and law-abiding tradition.”39 The myth of Asian model minorities who were able to rise up through hard work and perseverance became the quintessential American immigrant success story and demonstrated the accessibility of the American dream to those who assimilate to core American values. More importantly, the model minority myth overlooked the history of discrimination that Asian Americans endured in the country. As Saito continues, American history generally glosses over Japanese internment and “skips to statistical evidence of how ‘successful’ Japanese Americans have become in the intervening years.”40

An important exception to this pattern of erasure is John Okada’s 1957 novel No-No Boy. Unlike Korematsu, Hirabayashi, Yasui, or the no-no resisters, Okada lived through internment like most members of the Japanese American community—with quiet compliance and seeming assimilation. He answered yes to both loyalty questions and served in the US military as a translator of intercepted Japanese communications. Following the war, he got married, had children, and worked hard to provide for them. He became, in his own words, a man “endowed with a larger capacity for normalcy than most people.”41 Yet through his writing, Okada dared to imagine a perspective different than the one he had lived, one that gave voice to the frustrations he felt in his soul as a Nisei survivor of internment. His story of a no-no boy’s tumultuous homecoming to a fractured family raises questions concerning the fractured nature of Nisei identity and highlights the tension around assimilationism within his own community. However, at a time when American society was more interested in stories about Asian American model minorities, as suggested by the success of works such as Jade Snow Wong’s Fifth Chinese Daughter, Okada’s more sober depiction of the Japanese American wartime experience was rejected by the public at large and by his Nisei peers. As Jinqi Ling reveals, “Okada wrote and published the novel in an era when Cold War ideological drives toward U.S. nationalism and legitimation of material abundance promoted tendencies to embrace a common national character and a ‘seamless’ American culture.”42 No-No Boy did not support the dominant narrative depicting the United States as an egalitarian nation that celebrated rather than impeded diversity.

John Okada and No-No Boy had been relegated to obscurity for nearly two decades until the novel was rediscovered by Asian American activist writers and scholars in the 1970s.43 After its rediscovery, No-No Boy was praised for giving voice to the stories silenced by internment and the resulting drive toward assimilation, later becoming a canonical piece of Asian American literature. The belated praise for No-No Boy was largely a product of the rising movement of Asian American activism during the 1960s and 1970s that advocated for speaking out about experiences of oppression and for re-engagement with ethnic identity. Asian American writers became important contributors in reassessing the cultural history of Asian Americans, whose hybridized experiences were different both from their ethnic counterparts in Asia and from non–Asian Americans. Many of them rejected assimilation into whiteness and sought to challenge the model minority myth.

In this respect, Okada was ahead of his time. Around the same time that his No-No Boy was rediscovered, activists were beginning a movement for legal redress and reparations for Japanese American internment, which drew Korematsu out of his silence about internment. Suddenly, Korematsu, Hirabayashi, and Yasui were no longer seen as race traitors but as pioneers who dared stand up to systemic injustice at a time when no others would. The redress movement culminated in President Gerald Ford declaring internment a “national mistake” with Proclamation 4417 in 1976 and then President Ronald Reagan signing the Civil Liberties Act of 1988, which apologized for internment and distributed $20,000 in reparations to former internees. In his coram nobis case, Korematsu successfully overturned his conviction by bringing to light evidence uncovered by law scholar Peter Irons, which showed that the government had knowingly presented false evidence of Japanese American disloyalty and espionage in the original case.

Natsu Taylor Saito, however, critiques the narrative implicit in the redress movement for presenting “the internment [as] an aberration rather than a logical extension of the treatment of Asians in America.”44 Saito warns that ending the story of Japanese internment with redress and the coram nobis cases allows the illusion of closure and completion and “that the wrong has actually been righted.”45 Though Korematsu’s individual conviction was overturned in his coram nobis case in 1983, the Supreme Court precedent upholding the constitutionality of the evacuation and internment of a minority group based on military necessity stood for decades after. Sixty years after Japanese internment, history was repeating itself with the indefinite detention of foreign nationals suspected of being terrorists in the wake of 9/11. Though Korematsu had himself been vindicated in his own case, he submitted an amicus brief for Guantanamo detainees who were challenging their incarceration in Rasul v. Bush (2004), where he recounted his “life story” as a reminder that “throughout history, the United States has unnecessarily restricted civil liberties in times of stated military crisis.”46

The intersecting histories of Japanese internment and post-9/11 detention demonstrate the readiness of the government to scapegoat and discriminate against groups perceived as foreign in times of national crisis. Japanese internment and the Korematsu decision created the precedent for government suspension of fundamental civil liberties that define American democracy, which directly affect other minority groups in the United States, as occurred in the case of Arab Americans and Muslim Americans in the wake of 9/11. Indeed, even though the Supreme Court eventually repudiated the Korematsu decision in Trump v. Hawaii (2018), it did so in the context of upholding an executive order by President Donald Trump that targeted immigrants from Muslim countries for exclusion; as Justice Sonia Sotomayor notes in her dissent, “the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”47 In this respect, the legacy of Japanese internment is not complete, and narratives that memorialize oppression remain as important counterbalances to the idea of American progress from its racist past.

The Post–Exclusion Period: Immigrant Success and the Model Minority Myth

World War II also brought a dramatic a shift in American immigration policy. Restrictions against immigration from Asia were slowly lifted as political gestures to Asian countries allied with the United States during World War II. The Magnuson Act of 1943 lifted exclusion from China, and the Luce–Celler Act of 1946 lifted exclusion from India and the Philippines. However, the effects of the exclusionary era continued to afflict the Asian American population. Though all de jure prohibitions against immigration from Asia were eventually lifted, as a de facto matter, Asians still had difficulties immigrating due to restrictive quotas based on national origins that still existed. Following the war, however, the United States began rebuilding an image of itself as the new leader of the free world through a policy of inclusion and equality, particularly through immigration. For example, in his veto of the McCarran–Walter Immigration Bill, President Harry Truman wrote that the national origins quota

violates the great political doctrine of the Declaration of Independence that “all men are created equal.” It denies the humanitarian creed inscribed beneath the Statue of Liberty proclaiming to all nations: “Give me your tired, your poor, your huddled masses, yearning to be free.”48

As the nation became embroiled internationally in the Cold War, immigration reforms that publicized core American tenets such as equality of opportunity were utilized. These were designed to portray the American way of life as attractive to skilled migrants needed to advance Cold War efforts, starting with the Immigration Act of 1952 and culminating with the Immigration and Nationality Act Amendments of 1965.49

Peter Schuck suggests that “the Immigration Act of 1965 [w]as perhaps the most important nation shaping statute ever enacted . . . in terms of defining the future of our nation, none is more important, with the possible exception of the contemporaneous civil rights legislation of 1964 and 1965.”50 The enactment of the 1965 immigration reform was itself a symbolic gesture where the United States reaffirmed its identity as a land of equal opportunity. President Lyndon Johnson signed the bill into law at the foot of the Statue of Liberty and declared that the quota system

violates the basic principle of American democracy—the principle that values and rewards each man on the basis of his merit as a man. It has been un-American in the highest sense, because it has been untrue to the faith that brought thousands to these shores even before we were a country.51

President Johnson’s choice to sign the law at the foot of the Statue of Liberty, the archetypal icon for the immigrant seeking new opportunities in America, spoke to the core narrative of American identity and underscored the foundational principles of liberalism that linked reward and success with individual merit.

In the 20th century, Asian immigrant populations became the new poster children for this American grand narrative. The myth of Asian American success became emblematic of the ability of immigrants, who presumably came with nothing, to achieve the American dream through good values and hard work, thereby reifying the idea of America as an egalitarian meritocracy. Asian groups previously disparaged as threatening hordes were recast as model minorities to be emulated by other groups who claimed they were oppressed. Asian American authors from the postexclusion period wrote not only to fill in the silences created by exclusion but also to challenge the new model minority stereotypes that emerged as the politics of the nation shifted.

The 1965 immigration amendments set new national priorities that defined the rules of entry, which in turn determined the types of immigrants who would be able to come: skilled laborers and those with family ties. Both of these qualities are cornerstones of the model minority myth, which celebrates work ethic and strong family values.52 The demographic of the Asian American community, therefore, was largely affected by the new laws that permitted their entry. Jhumpa Lahiri’s fiction examines diasporic South Asian families in ways that implicitly register the unseen effects of these changes to immigration policy and their support of the model minority myth. For example, the short stories “Mrs. Sen’s” and “Unaccustomed Earth” depict older South Asian immigrant couples who follow the structures dictated by immigration laws: The husband comes to the United States as a skilled laborer and the wife follows but is unable to work legally.53 While the family is economically stable and educationally privileged, the values of work and family that support their model minority narrative also uphold the established gender hierarchies of both Asian and American culture. The first name of the title character of “Mrs. Sen’s” is never revealed, so that she is only identified in reference to her husband. The story accounts her growing loneliness, isolation, and dependence upon him as they continue living in the United States. In “Unaccustomed Earth,” the young mother Ruma discovers similar tensions were present in her parents’ marriage. The choices available to Ruma’s father were not accessible to his wife, who ultimately found her life in America unfulfilling. Another kind of discontent worries Ruma, who is finding it difficult to balance her family life and career, which demonstrates the remaining gaps of gender workplace reform as American women are pushed to seek equality in the workforce even while cultural expectations regarding childrearing responsibilities remain unchanged.

In both stories, Lahiri critiques how the pursuit of model minority success and assimilation has a cost. In “Unaccustomed Earth,” Ruma’s father concludes that his unfulfilling career cost him his intimate connections with family. His wife never wanted to leave India in the first place, and their migration to America strained their relationship. He, too, regrets how he had “turned his back on his parents, by settling in America. In the name of ambition and accomplishment, none of which mattered anymore.”54 Yet at the end of the story, when Ruma asks her now-widowed father to stay with her, he refuses to join an extended family. In the same way, Mrs. Sen yearns for the home that she was displaced from and mourns the absence of her family members left behind in Calcutta. Though the 1965 immigration reforms were publicized as providing relief from previous barriers and promoting family unity, Lahiri’s stories serve as reminders that immigration laws are by their nature restrictive and can easily have the effect of dividing rather than reuniting families. Only a select few are permitted in, while the majority remain shut out. Furthermore, the stories of skilled immigrants such as Ruma’s father and Mr. Sen contradict the rags-to-riches narrative typically associated with the model minority stereotype. Characters such as Ruma’s father and Mr. Sen—both attaining PhDs before coming to the United States—were specifically targeted for immigration as a result of their skills.

Refugee Policies and Perspectives: Humanitarianism as American Exceptionalism

Apart from skilled labor and family reunification, American immigration law also permits refugees to immigrate, which allowed the United States to cast itself as a humanitarian nation. However, much of this policy has been politically motivated. In the midst of the Cold War, Congress passed the Refugee Relief Act of 1953 to provide relief to refugees fleeing from Communist countries. Refugee policy eventually became more robust as US military involvement in Asia displaced thousands of refugees. Following the fall of Saigon at the end of the Vietnam War, Congress enacted the Indochina Migration and Refugee Assistance Act in 1975 as a one-time measure to evacuate Vietnamese, Cambodian, and Laotian refugees to the United States. As refugees continued to flee Southeast Asia in the following years, Congress enacted the Refugee Act of 1980. This act set forth criterion for asylum status for individuals who have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Refugee and asylum benefits, however, are just as selective and restrictive as other immigration regulations, and they are generally available only to those whose political and social views conform with American values. In Osaghae v. INS (1991), Judge Richard Posner defines “persecution” that qualifies a person for refugee status under American immigration law as “punishment for political, religious, or other reasons that our country does not recognize as legitimate.”55 Glaringly absent from the Vietnamese American community are the North Vietnamese, since they were on the other side of American political interests and therefore deemed illegitimate as potential refugees. The Vietnamese American refugee perspective is somewhat one-sided because the refugee laws permitted entry only for those who sided with the United States during the war. Asian American political scholars have found “Vietnamese refugees were a politically informed and motivated group even before coming to the United States” and that anticommunism plays a key factor in their voting interests.56 The immigration laws, in this way, prove to be a powerful determinant of how an entire sector of the Asian American community thinks and behaves.

Viet Thanh Nguyen addresses this one-sidedness of his community in his debut novel, The Sympathizer. Nguyen recognized how his own family’s immigration story was affected by a “deliberate government policy in order to encourage assimilation.”57 Nguyen was inspired to write his novel by his own memory of watching Francis Ford Coppola’s Apocalypse Now, which he says, as a Vietnamese American, created “an impossible moment for me because I didn’t know who I was supposed to identify with, the Americans who were doing the killing or the Vietnamese who were dying and not being able to speak?”58 Specifically referencing the scene where an American military inspection of a Vietnamese sampan results in the massacre of all aboard, Nguyen recalls thinking “it was an antiwar movie about the war in Vietnam, but the movie was about Americans . . . [t]he Vietnamese were silent and erased.”59 For Nguyen, the scene served as “the symbolic moment of my understanding that this was our place in an American war, that the Vietnam War was an American war from the American perspective and that, eventually, I would have to do something about that.”60 In The Sympathizer, Nguyen not only speaks out for the Vietnamese voices muted in Coppola’s film but also challenges how assimilation to American identity often involves repudiation and silencing of certain other cultural experiences that may be relevant.

Nguyen chooses for his protagonist a North Vietnamese Communist spy who is characterized by duality: he is half-Vietnamese, half-white, and a double agent who works both sides of the war. At the start of the novel, he identifies himself as “a man of two minds . . . able to see any issue from both sides.”61 His narrative does not simply provide the alternative voice of a Communist sympathizer who is excluded and therefore absent from Asian immigrant consciousness but also illustrates the hybrid and multilayered complexity of Asian American identity and what it means to navigate between multiple identities as a diasporic ethnic American. His story, written as a prison confession, is a countermemory that challenges the false binary presented to Asian Americans of having to choose between their ethnic and American identity, yet also expresses the fluidity of Asian American perspective and consciousness.

Ngyuen’s novel resists and critiques the way in which asylum law and policy forces this binary choice upon refugee subjects, which ultimately promotes American exceptionalism. In order to qualify for asylum, refugees must repudiate their countries of origin as intolerant and oppressive, while casting the United States as tolerant and progressive in comparison. Thus, asylum law often relies upon the same discourses of primitive culture that was used to justify discriminatory laws. For example, asylum claims based on gender-based persecution from China often resurrect the same construction of China as a monolithically backward patriarchal country that was used to justify the Page Act and Chinese exclusion. At the same time, the United States is portrayed as a progressive haven or rescue and refuge, which masks continuing inequities of gender still prevalent in American society.

Asian American Stories and the Law: Remembrance and Resistance

By producing literature, Asian American writers contribute to the development of Asian American culture as an equally important but forgotten facet of American culture that was silenced and marginalized by discriminatory laws. Maxine Hong Kingston, for example, engages in countermemory in her novels to challenge the assumption that national memory and history are necessarily objective. In a chapter entitled “The Laws” that appears squarely in the center of China Men, Kingston interrupts her narrative with a list of laws to illustrate how the experiences of not only the characters in her book but also all Asian Americans have been mediated through the laws. Brook Thomas has noted that because of the inclusion of “The Laws,” the publishers did not know how to classify the book and labeled it “Nonfiction/Literature.”62 The section, however, is not intended to be an exact legal chronology, and as a work of fiction, it takes creative liberties with historical accuracy. Kingston’s purposeful imprecisions in her retelling of “The Laws” serves as a reminder that American legal structures are not objective but rather mired in a history of racism and exclusion that promotes only one dominant perspective and silences others.

In China Men as well as Woman Warrior, Kingston utilizes the Hawai’ian convention of talk-story, where people engage in friendly, in-depth conversation to “learn about each other and to break the grip of the stock stories that too often determine or at least constrain our perceptual fields and hence our reality.”63 Hawai’ian talk-story incorporates multiple cultural traditions brought together on the island, reflecting the hybridity of identity there. Talk-story can also function as a form of alternative dispute resolution: that is, to solve disagreements through talking things out without resorting to formal legal mechanisms.64 By evoking talk-story, Kingston offers narrative fiction as an alternative space to dialogue for reaching resolutions for injustice. Because, as Charles Lawrence argues, American legal values cannot be objective because racism and oppression are so embedded in American legal history as to become unconscious, the American legal system cannot always offer adequate solutions to the concerns of the Asian American community.65 Kingston demonstrates the place of Asian American fiction as an alternative space to give voice to the silences that law has produced.

Critical race theorists such as Derrick Bell, Kimberle Crenshaw, and Patricia Williams argue that the American legal system has silenced and precluded the stories of people of color from its founding, and thus they look to alternative narrative spaces to expose and critically evaluate the exclusions created by the laws.66 For the last century and a half, the lives and experiences of Asian Americans have largely been negotiated through laws governing immigration and citizenship. Although the restrictive laws sought to rob them of a culture of their own, first through marginalization and exclusion and then through assimilation and hegemonization to the dominant American narrative, Asian Americans have begun to reclaim and redefine their culture since the latter half of the 20th century. Asian American writers and Asian American literature have provided a space outside of law to counter the dominant narratives that law produces and demonstrate the will of the community to resist becoming silent victims of those laws.

Discussion of the Literature

The interdisciplinary interest in “law and literature” and more broadly “law, culture, and the humanities” began growing during the 1970s and 1980s with the publication of James Boyd White’s The Legal Imagination: Studies in the Nature of Legal Thought and Expression. As the law and literature movement continued, feminist scholars Carolyn Heilbrun and Judith Resnik wrote “Convergences: Law, Literature, and Feminism” as a dissent to “the creation of a law and literature canon that excludes feminist perspectives,” pointing out that law has traditionally left the stories and viewpoints of women untold.67 Works of black feminist scholars such as Kimberle Crenshaw’s “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color,” Patricia Hill Collins’s Black Feminist Thought: Knowledge, Consciousness and the Politics of Empowerment, and Patricia Williams’s The Alchemy of Race and Rights: A Diary of a Law Professor further argued that oppression and silencing are often layered and involve multiple facets of a person’s identity, including gender, race, class, and sexuality. They and other critical race scholars emphasized storytelling as a method to uncover and resist the intersecting systems of oppression that law creates. Working within the tradition of critical race studies, works of Asian American legal scholars such as Neil Gotanda’s “Other Non-Whites in American Legal History: A Review of Justice at War,” Mari Matsuda’s “Looking to the Bottom: Critical Legal Studies and Reparations,” and Robert Chang’s “Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space” identified shared histories and collective narratives as means of countering ethnoracial fault lines and building pan-ethnic coalitions within the Asian American community and beyond.68 Subsequent scholarship such as Frank Wu’s Yellow: Race in America Beyond Black and White and Kenji Yoshino’s Covering: The Hidden Assault on Our Civil Rights looked to real-life experiences of Asian Americans as countermemories to the dominant narrative produced by law. Other works, such as Lisa Lowe’s Immigrant Acts, David Li’s Imagining the Nation: Asian American Literature and Cultural Consent, and Joshua Chambers-Letson’s A Race So Different: Law and Performance in Asian America, considered the role of literature in providing those counterhistories.69

Further Reading

  • Crane, Greg. Race, Citizenship, and Law in American Literature. Cambridge: Cambridge University Press, 2002.
  • Gutierrez-Jones, Carl. Critical Race Narratives: A Study of Race, Rhetoric, and Injury. New York: New York University Press, 2001.
  • Li, David. Imagining the Nation: Asian American Literature and Cultural Consent. Stanford, CA: Stanford University Press, 1998.
  • Lowe, Lisa. Immigrant Acts. Durham, NC: Duke University Press, 1996.
  • Ngai, Mae. Impossible Subjects: Illegal Aliens and the Making of Modern America. Princeton, NJ: Princeton University Press, 2014.
  • Wu, Frank. Yellow: Race in America Beyond Black and White. New York: Basic Books, 2002.
  • Yoshino, Kenji. Covering: The Hidden Assault on Our Civil Rights. New York: Random House, 2006.


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  • 2. Lisa Lowe, Immigrant Acts (Durham, NC: Duke University Press, 1996), 4.

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  • 4. People v. Hall, 4 Cal. 399 (1854).

  • 5. People v. Hall, at 404–405.

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  • 54. Jhumpa Lahiri, Unaccustomed Earth (New York: Knopf, 2008), 51.

  • 55. Osaghae v. I.N.S., 942 F.2d 1160, 1163 (7th Cir. 1991).

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  • 57. Terry Gross, “Author Viet Thanh Nguyen Discusses ‘The Sympathizer’ And His Escape From Vietnam.” National Public Radio, May 17, 2016.

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  • 59. Streitfeld, “*For Viet Thanh Nguyen.”

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  • 63. Robert Chang, “Facing History, Facing Ourselves: Eric Yamamoto and the Quest for Justice,” Michigan Journal of Race and Law 5 (1999): 111–131.

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  • 65. Charles R. Lawrence, “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism,” Stanford Law Review 39 (1987): 317–388.

  • 66. Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism (New York: Basic Books, 1992); Kimberle Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color,” Stanford Law Review 43 (1991): 1241–1299; and Patricia Williams, The Alchemy of Race and Rights (Cambridge, MA: Harvard University Press, 1991).

  • 67. Heilbrun, Carolyn, “Convergences: Law, Literature, and Feminism,” Yale Law Journal 99 (1990): 1913–1953.

  • 68. Neil Gotanda, "Other Non-Whites in American Legal History: A Review of Justice at War,” Columbia Law Review 85.5 (1985), 1186–1192; and Robert S. Chang, "Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space,” Asian American Law Journal at Berkeley Law 1 (1994), 1243–1323.

  • 69. Lisa Lowe, Immigrant Acts; David Li, Imagining the Nation; Joshua Takano Chambers-Letson’s A Race So Different: Law and Performance in Asian America (New York : New York University Press, 2013).