Yellow by Law

09 Jun 2009 05:46pm Devon W. Carbado 

Over the past decade, scholars have paid increasing attention to Japanese-American constitutional history. For the most part, this literature focuses on the government’s decision during World War II to intern people of Japanese ancestry. But the trope of the Japanese as perpetual foreigners predates internment. My aim in this Article is to explore another historical moment in which that trope figured in constitutional discourse: 1922. In that year, Takao Ozawa attempted to persuade the Supreme Court that he was eligible for naturalization, and more particularly, that he was “white.”

Notwithstanding that Ozawa is one of a few cases in which the rights of people of Japanese descent are squarely before the Supreme Court, not a single law review article sets forth the case’s legal, political, and social context. Consequently, we know very little about how Ozawa got to the United States, how his case got to the Supreme Court, and how he shaped the timing and substance of the litigation. Nor do we know how the lawsuit figured in, helped to constitute, and was itself constituted by the civil rights consciousness of the Japanese-American community. Even less appreciated are the geo-political concerns that shaped how the U.S. and Japanese governments responded to the case as it journeyed through the courts and eventually received media attention.

This Article fills these gaps and sheds new light on the district court and Supreme Court opinions. A full telling of Ozawa’s story demonstrates how both courts drew on popular and scientific sources of racial knowledge to conclude that people of Japanese descent were neither white nor Caucasian. More importantly, the Article shows that these opinions helped to make Ozawa yellow. The inability of Japanese people to become citizens—their unnaturalizability—was not a natural pre-existing fact (existentially just there) but a legally produced reality (existentially contingent). To put the point slightly differently, Takao Ozawa was not born yellow. He became yellow—by law. This article tells the story of this racial becoming, a story within which both Oliver Wendell Holmes and Louis Brandeis are implicated.

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