Wednesday, June 17, 2009

Kuo on Nation Building, Yick Wo, and Chinese Exclusion

The Duality of Federalist Nation-Building: Two Strains of Chinese Immigration Cases Revisited is an article by Ming-Sung Kuo, Max Planck Institute for Comparative Public Law and International Law. It appeared in the Albany Law Review (2003). Here's the abstract:
This Article aims to provide a systematic understanding of Wo v. Hopkins and the Chinese Exclusion Case by situating them in the context of American nation-building during the period following the end of the Civil War. Both the protagonists in these two cases are Chinese immigrants while the judicial attitudes toward them in these two cases were completely different. Thus, theses two cases have long been separately categorized in the scholarship and the jurisprudence of constitutional law. Nevertheless, this 'dichotomist position' will be called into question when the structural similarity and temporal proximity between these two cases are considered. This Article seeks to achieve a comprehensive reading of these two cases and to assess how this new perspective can contribute to our understanding of the course of American constitutional development. My argument is that as a transitional period in the wake of the turbulent Civil War and Reconstruction and at the turn to the 'American age,' the 1880s exhibited the dual ambitions of consolidating the ideal of a nation in the federalist scheme and of burnishing its image of a national sovereign in the imperial era. This duality of a federalist nation-building project is the presupposition needed for a comprehensive understanding of Yick Wo and the Chinese Exclusion Case.

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