Op-Ed: An enlightened California judge paved the way to fight Trump’s travel ban more than a century ago


The U.S. Supreme Court will soon decide on the legality of President Trump’s travel ban, a policy that has provoked immense division and cries that we have entered “unprecedented” territory.

In fact, neither the ban nor the legal clash over it are without precedent. The case will be decided within legal bounds established by a Supreme Court justice named Stephen J. Field, a Californian who took his seat on the court 155 years ago this month. Field’s rulings over Chinese laborers became the cornerstone of constitutional law regarding foreigners who wish to start a new life in America.

Appointed by President Lincoln during the Civil War, Field was the court’s first westerner and one of its fiercest, most iconoclastic justices. He left New York City for California in 1848 at the start of the Gold Rush — if not to strike it rich, then to provide legal services to those who might.


He found San Francisco “strange and wild,” a Babel-like tent city hosting “every nation under Heaven,” including Chinese immigrants, many of whom had received news of the Gold Rush before Americans in Boston or New York.

By the early 1870s, California had four workers for every job, but Chinese workers — mostly young men eager to work for a fraction of the wages paid to white workers — continued to pour off steamers. Back then, San Francisco was no sanctuary city. It would have been far more inhospitable had it not been for Field.

Field first showed courage against a growing tide of anti-Chinese sentiment in 1874, when he struck down a California law that let state officials arbitrarily refuse landing to “lewd” foreigners.

“I have little respect for that discriminating virtue which is shocked when a frail child of China is landed on our shores,” Field wrote at the time, after 21 young Chinese women were detained at port, “and yet allows the bedizened and painted harlot of other countries to parade our streets.”

Five years later, Field declared unconstitutional San Francisco’s infamous “pigtail ordinance,” which required the hair of male prisoners to be clipped to one inch. The decree was cast as a sanitary measure, but Field saw through that reasoning, ruling correctly that, in fact, it was “wanton cruelty” targeting Chinese men who wore long braids out of piety.

No matter how courts rule, in other words, an enlightened public opinion always has the last word.


Field’s decisions destroyed his presidential ambitions, but they cemented his reputation as the “protector of the Chinese.” For years afterward, Chinese laborers gathered to greet him when he arrived for his annual stay at San Francisco’s Palace Hotel.

Hostility toward Chinese immigrants soon went national. Congress suspended Chinese immigration in 1882 with the Chinese Exclusion Act. In 1889, Field held that excluding Chinese immigrants, as a basic exercise in sovereignty, was indeed constitutional, in Chae Chan Ping vs. United States.

But when Congress passed a law that threatened to uproot and deport 93,445 lawful Chinese residents in 1892, Field objected furiously. His colleagues upheld the law, in Fong Yue Ting vs. United States, but Field dissented, condemning what he saw as approval of an inhumane “despotic power.” President Cleveland and much of Congress, thankfully, lacked the will to enforce the law, so the mass deportation never took place.

Field’s positions eventually won in the court of public opinion. Although Congress retains near unlimited power to keep out non-citizens who lack legal rights to be here, we have come to accept that immigrants who do receive permission to pass through our gates should enjoy almost all of the basic liberties and property rights that citizens do. The Trump administration admitted as much when it revised its original travel ban to not affect foreign nationals with visas.

Cleveland’s solicitor general in the deportation case, George A. Jenks, argued that America’s most dangerous enemies were not armed invaders but “alien races” who “debase our labor and poison the health and morals of [our] communities.” But Trump’s solicitor general, Noel Francisco, has conceded that if the court finds the travel ban was in fact motivated by racial or religious hostility, the justices are empowered to block it.

The long tradition of our courts has been to let presidential proclamations speak for themselves, without looking at concealed motives. Although the Supreme Court was asked to consider whether Trump invoked “national security” as a pretext for hostility toward Islam, a majority of the justices are likely to avoid the question.

This, too, would be following precedent set by Justice Field, who argued that courts of law should avoid political or ethical thickets by evaluating whether a president has the power to act, not whether that power is exercised with honorable motives. The “moral aspects” of a president’s actions, Field said, ought to be judged “before the public, in the halls of Congress, and in all the modes by which the public mind can be influenced.”

No matter how courts rule, in other words, an enlightened public opinion always has the last word.

Joseph Tartakovsky is the former deputy solicitor general of Nevada and the author of “The Lives of the Constitution: Ten Exceptional Minds that Shaped America’s Supreme Law.”

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