Monday, May 17, 2021

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 Abstract

Excerpted From: Natsu Taylor Saito, Model Minority, Yellow Peril: Functions of “Foreignness” in the Construction of Asian American Legal Identity, 4 Asian Law Journal 71 (May 1997) (136 Footnotes) (Full Document)

NatsuTaylorSaitoHardworking, studious, unassuming, thrifty. Inscrutable, sneaky, competitive. Those of Asian descent are sometimes portrayed as the “model minority,” people who are succeeding in America despite their status as minorities by working and studying, saving and sacrificing for the future. However, as the “yellow peril,” Asians and Asian Americans are also depicted as military, cultural or economic enemies and unfair competitors for education and jobs.

The positive versions of these stereotypes include images of Asian Americans as hardworking, industrious, thrifty, family-oriented, and even mysterious or exotic. It is striking that the negative images almost invariably involve the same traits. Hardworking and industrious become unfairly competitive; family-oriented becomes clannish; mysterious becomes dangerously inscrutable. As Gary Okihiro notes:

The Asian work ethic, family values, self-help, culture and religiosity, and intermarriage--all elements of the model minority--can also be read as components of the yellow peril. . . . [T]he yellow peril and the model minority are not poles, denoting opposite representations along a single line, but in fact form a circular relationship that moves in either direction.

How can such apparently contradictory images be simultaneously attributed to Asian Americans? One piece of this puzzle came to me as I pondered another inadequately explained part of Asian American legal history--the Supreme Court's decisions in the Japanese American internment cases, Korematsu, Hirabayashi, Yasui, and Endo.

The story of the incarceration of over 120,000 persons of Japanese ancestry by the United States government during World War II is a familiar one. I grew up hearing stories of my father's internment in Tule Lake, California; witnessed my uncle's participation in the drive for reparations in the Japanese American community; and, as a law student, followed with interest the coram nobis petitions through which the convictions of Fred Korematsu and Gordon Hirabayashi were vacated. But I always felt that something was missing in the legal and historical explanations of the internment.

In 1943 and 1944 the Supreme Court upheld the curfew and the evacuation and incarceration of Japanese Americans on the basis of military necessity. Most critiques of these decisions, including Justice Murphy's dissent in Korematsu and Eugene Rostow's uncompromising analysis, have focused on the dangers of combining racism and wartime hysteria, implying that the military actions and their sanctioning by the judiciary were an aberration from an otherwise relatively straightforward march toward the protection of all Americans' constitutional rights.

The coram nobis petitions were based on the 1981 discovery of evidence that the War Department had knowingly concealed information about the danger (or lack thereof) posed by Japanese Americans. Accordingly, the convictions of Korematsu and Hirabayashi were vacated on the premise that the Court would probably have decided differently had it known these facts. But is it probable that if the Court had seen the original version of General DeWitt's Final Report or knew that the Justice Department did not consider Japanese Americans a major security concern, it would have decided differently in 1943 and 1944?

In 1980, Congress established the Commission on Wartime Relocation and Internment of Civilians which held nationwide hearings. Its final report concluded, “The promulgation of Executive Order 9066 was not justified by military necessity, and the decisions which followed from it . . . were not driven by analysis of military conditions. The broad historical causes which shaped these decisions were race prejudice, war hysteria and a failure of political leadership.” Based on this report, the President issued an official apology and Congress passed legislation providing for at least symbolic redress. These, too, imply that the experience was an unfortunate detour in an otherwise honorable history of respect for the rights of citizens.

Ruling in 1986 on motions for reconsideration in the Hirabayashi case, Judge Vorhees stated, “It is now considered by almost everyone that the internment of Japanese-Americans during World War II was simply a tragic mistake for which American society as a whole must accept responsibility.” However, it is not clear to me that the internment and the judicial decisions upholding it were aberrations, or a “tragic mistake.” They are a quite logical extension of a history of law that tended, on the whole, to exclude those of Asian descent from mainstream society. They fit in quite well with the Chinese Exclusion Act, the “Gentlemen's Agreement” of 1908 excluding Japanese immigrants, the laws prohibiting the naturalization of persons of Asian descent, license and head taxes on immigrants, and laws which prohibited the ownership of land by aliens ineligible to citizenship. They also comport with a social history of discrimination, segregation, exclusion and race-based violence against Asian Americans. Yet this history is rarely discussed in the legal analyses of the internment cases.

Wartime hysteria overlaid on prejudice does not adequately explain the historical course taken. Korematsu is generally cited for establishing that race-based distinctions require strict scrutiny. How did the decision withstand its own test? Pondering these questions, I found Neil Gotanda's analysis:

A broader historical perspective is possible. Such a perspective would view the status of Japanese-Americans in American legal history as one component in the larger question of race in American law. . . . One of the critical features of legal treatment of [non-Black racial minorities--“Other non-Whites”--] has been the inclusion of a notion of “foreignness” in considering their racial identity and legal status. This previously unexamined dimension of the relationship between race and law helps shed light not only on the [Japanese American internment], but on contemporary debate as well.

“. . . It is within this dynamic--the evolution of the treatment of Other non-Whites--that the concentration camp cases are best understood. . . . [T] hese cases were crucial steps in the development of the complex links of the social and legal categories of race and alienage. Most important in this development has been the persistence of the view that even American-born non-Whites were somehow “foreign.”

Here was a piece that I had been searching for. The Japanese American internment cases could not be explained merely by race or, alternately, by alienage. Acts that could not be justified in the name of race were done in the name of alienage and vice versa. There was overlap and slippage, a legalistic sleight of hand. The racialized identification of Japanese Americans as foreign--regardless of their citizenship--allowed for otherwise unlawful actions to be taken against United States citizens.

I then realized that “foreignness” was also a missing piece in the model minority/yellow peril puzzle. The underlying constant of foreignness allows for the magical right-before-your-eyes transformation of the images of Asian Americans from positive to negative and back to positive again. Each of the images has been painted with the brush of foreignness, and it is this tinting that provides the continuity behind the changing values attributed to them.

These realizations led me wonder what ends were served by the attribution of foreignness to the racialized identity of Asians, and to conclude that it helps reinforce racial, social and economic hierarchies in the United States in two ways: first, by placing Asian Americans as a buffer zone (the “model minority”) between those identified as “black” and “white” and, second, by constructing Asian Americans as instant outsiders against whom “real Americans” (black and white) can unite in times of crisis.

This essay describes some key aspects of this process. Part II considers how foreignness evolved in the construction of an Asian racial identity. Part III discusses the role of foreignness in the portrayal of Asians as enemies; and the use of foreignness in maintaining a supply of cheap Asian labor is the focus of Part IV. Ways in which the perception of foreignness has been used to reinforce racial, social and economic hierarchies are examined in Part V. Part VI concludes the essay with a summary of these dynamics.

[. . .]

Understanding that “foreignness” is part of the racialized identity of Asian Americans first helped me to understand what was missing in most explanations of the Japanese American internment cases. Acknowledging the role of foreignness in this history helped me see why, rather than an unfortunate aberration, the internment was in many respects a logical, if extreme, extension of a social and legal history that identified all Asians as foreign, ascribed both model minority and yellow peril characteristics to them, and identified them as enemies. This allowed me to see that an underlying notion of foreignness tied together the model minority and yellow peril images that are so often used to describe Asian Americans, and explained why it was so easy to slip from one to the other.

But why did this attribution of foreignness continue, even after some Asian Americans had been in the United States for many generations? The presumption of foreignness has made it easier for Asian Americans to be used as cheap labor; easier to turn them into the yellow peril on an instant's notice; and easier to hold them up as a model minority in a way that masks real issues of discrimination and uses Asian Americans against other minorities. These phenomena, in turn, help support and maintain racial hierarchy and relationships of social and economic subordination that exist in the United States.

These patterns, of which the internment is but one manifestation, are reflected in contemporary developments as well as Asian American history. Nearly every day there is another story in the news--a new anti-immigrant initiative, an incident of anti-Asian violence, a speculation that Asian economic interests are consuming America. A common thread in these incidents is the perception that the people affected are foreign and the presumption that it is acceptable to apply lesser standards of protection to them. Recognizing this may allow us to more effectively change these patterns, both legally and socially.


Associate Professor, Georgia State University College of Law.


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Vernellia R. Randall
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Professor Emerita of Law
The University of Dayton School of Law

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