Legalizing Whiteness: What Asian American Legal History Tells Us About Citizenship in the Early 20th Century

Toyosaburo Korematsu was born in East Oakland in 1919 as the third son of Kakusaburo Korematsu and Kotsui Aoki. The Korematsu family, who ran a successful flower nursery, were part of a large Japanese American community of roughly 6,000 living in the Bay Area, just a portion of the over 90,000 living in California in the early 20th century. Despite the large Japanese community he grew up in, a teacher told Toyosaburo that his name was too difficult to pronounce, so he adopted the name Fred. In his later years, he studied to be a welder and was quickly promoted to the role of foreman in one of Oakland's dockyards in 1941.

Fred Korematsu was just 22 years old when Japan attacked Pearl Harbor on December 7, 1941. The next day, President Franklin D. Roosevelt declared war on Japan and just two months later he signed Executive Order 9066, which paved the way for the incarceration and internment of Japanese Americans on the West Coast. In the weeks leading up to forced removal, Korematsu's then girlfriend, Ida Boitano, suggested that he consider plastic surgery. As an Italian American, Boitano did not face the same prejudice and discrimination although Italy had also declared war on the United States, as part of their Tripartite Pact with Germany and Japan. Her suggestion was not far-fetched, given that visual guides on how to differentiate Asians were regularly featured in magazines like Time and Life. Ultimately, he agreed. In March 1942, the month he was meant to register for relocation, Korematsu underwent plastic surgery on his nose and eyes and changed his name to Clyde Sarah, claiming to be of Spanish and Hawaiian descent.

Fred Korematsu's attempts to pass as another identity, whether white, Hawaiian or even perhaps Chinese, were unsuccessful. On May 30, 1942, Korematsu was arrested and imprisoned by the San Leandro police. In jail, Korematsu was approached by an American Civil Liberties Union (ACLU) lawyer Ernest Besig who asked if he was interested in serving as the test case for the legality of Japanese American internment. Korematsu agreed and eventually, the case would reach the Supreme Court in 1944.

Korematsu v. United States (1944) illustrates how Asian Americans navigated legal restrictions placed on them by approximating themselves to whiteness. White, as racial classification which enabled access to naturalization and citizenship, informed how the nation reinforced its understanding of legal personhood and thus, rights and protections afforded by the Constitution. Paired with the earlier Supreme Court cases of Takao Ozawa v. United States (1922) and the United States v. Bhagat Singh Thind (1923), Korematsu's case reveals how the legal construction of whiteness was formed with the intention of excluding Asians in the United States from equal protection and other Constitutional rights through the maintenance of their status of "aliens ineligible for citizenship" before 1952.

Understanding "Whiteness"

To understand the priority of whiteness when considering rights afforded through citizenship is to interrogate the borders of legal jurisdiction and immigration in the U.S. While the Constitution's Bill of Rights defined the rights of citizens, it did not explicitly mention who those citizens were until the ratification of the Fourteenth Amendment in 1868. Prior to this, citizenship was determined through a series of naturalization laws. The first, the Naturalization Law of 1790, attempted to define the contours of belonging following the American Revolution by limiting naturalization to "free white persons" and extending citizenship to children and dependents of those naturalized. At a time when an estimated 25% of Americans were Europeans immigrants, Indigenous people were considered members of foreign nations by the Constitution's Commerce Clause, the enslaved population were considered less than a full person as determined through Article I's 3/5th clause, and voting rights were entangled with property ownership, it was clear that common conceptions of "free white person" meant property-holding men of northern and western European descent.

American naturalization laws shifted after the Civil War with the imperfect extensions of civil rights to Black Americans during the Reconstruction period. With the formal abolition of slavery through the ratification of the Thirteenth Amendment in 1865, the Civil Rights Act of 1866 confirmed citizenship to all persons born in the United States regardless of race and the Naturalization Law of 1870 expanded the process of naturalization to include "aliens of African nativity and to persons of African descent." Questions soon arose on whether the new, and rapidly growing, Asian migrant population would be classified in these two categories. Responding to the demands for cheap labor, hundreds of thousands of Asians, primarily from China and Japan, migrated to the U.S. to work in railroad, mining, and agricultural industries between 1860-1910. This shift in labor demographics, especially on the West Coast, led to the anti-Asian movement which resulted in federal exclusion laws including the Page Law of 1875, the Chinese Exclusion Acts of 1882, 1888, and 1902, and the Immigration Act of 1917, which established the Asiatic-Barred Zone. Several states would adopt further restrictions on marriage (anti-miscegenation laws) and property ownership (alien land laws).

Ozawa v. United States and United States v. Thind

Perhaps the language of the Naturalization Law of 1870 and the expansion of Jim Crow laws reinforced by the Supreme Court's decision in Plessy v. Ferguson (1896) are the reasons that Takao Ozawa and Bhagat Singh Thind did not contest their quests for citizenship through the lens of blackness. Rather, both Ozawa and Thind argued that their legal belonging was based on their proximity to whiteness. Ozawa, who had migrated from Japan in his teens, attended U.S. schools, and converted to Christianity, based his argument on his successful assimilation and noticeably "pale" skin. Ozawa's assimilation was less of a determining factor, as precedent which prioritized one's race over their capacities to assimilate had already been determined in Elk v. Wilkins (1884), which determined that even voluntary separation from a tribe or nation did not ensure citizenship for a Native American person. Despite his skin being "pale in color," the Supreme Court unanimously ruled that Ozawa was not of the Caucasian race, therefore unable to naturalize and obtain citizenship.

The Supreme Court ruled on Bhagat Singh Thind's case three months after Ozawa. Thind, a World War I veteran who had fought for the U.S., applied for citizenship through the Naturalization Act of 1918, which incentivized enlistment to immigrants in exchange for naturalization and citizenship. That year, Thind successfully obtained citizenship in Washington, but it was revoked four days later. Thind then attempted to apply in Oregon, instead this time, he appealed his application's denial in the courts. As a South Asian immigrant from British controlled India, Thind argued that he should be categorized as Caucasian as he descended from the Aryan race, a determination based on the migrations and languages of Indo-European peoples. Thind's legitimate alignment with the Caucasian race was acknowledged, however, the Supreme Court unanimously decided that "free white persons" was "interpreted in accordance with the understanding of the common man." In other words, Thind was Caucasian, but not white as it was popularly understood. The Supreme Court's ruling on Thind contradicted its previous ruling in Ozawa's case.

Takao Ozawa and Bhagat Singh Thind's legal challenges demonstrated that racial construction in the United States was malleable and socially constructed through the contexts of the time. At the time of their rulings in the 1920s, the United States affirmed its investment in whiteness as a priority for citizenship. These cases reveal how Asian Americans' foreignness was prioritized through a maintenance of their classification as aliens ineligible for citizenship, despite the Court's acknowledgement of their proximity to whiteness through their physical skin color (Ozawa) and ancestral backgrounds (Thind). Furthermore, by creating a legal definition of whiteness, the United States effectively diluted the diverse European ethnicities and cultures to create a singular, ideal American identity.

Korematsu v. United States

The belief that Asian people were different from the ideal white citizen shaped Asian American experiences in the decades after Ozawa and Thind. Unlike the previous cases, however, Korematsu was not an immigrant. While he looked like the enemy, Korematsu's lawyers argued, his American citizenship, provided to him by birth thanks to the Supreme Court's ruling in the United States v. Wong Kim Ark in 1898, protected him from the processes of removal through the equal protection clause of the Fourteenth Amendment. Notably, of all the legal challenges raised about Japanese internment none came from first-generation Japanese immigrants who, like Ozawa, were permanently fixed as aliens ineligible for citizenship.

Korematsu's lawyers argued that his status as a citizen granted him the right to a fair trial and due process, and that challenges to his loyalty were based on racial discrimination, not on an imminent threat. Korematsu and his legal team were unsuccessful with the Court ruling 6-3 in favor of the United States's choice to remove and incarcerate roughly 120,000 Japanese immigrants and Japanese Americans. Thus, it can be concluded that Korematsu's actions of receiving plastic surgery and changing his name twice (once in childhood to Fred and again in adulthood to Clyde) to be perceived as less, or even not Japanese, reinforces an understanding of the prioritization of whiteness and its connections to his legal belonging in the United States, despite his citizenship.

The fact that Korematsu assumed passing as another ethnicity or race may have worked and the fact that the U.S. government decided that German and Italian Americans on the East Coast did not need to experience mass removal illustrates the role of whiteness in maintaining the rights guaranteed by citizenship. Even decades later, when financial redress for Japanese Americans who experienced internment generated support thanks to the civil rights movements of the 1960s, Justice Hugo Black admitted to the role of race and belonging in making the decision.

They all look alike to a person not a Jap. Had [Japan] attacked our shores, you'd have a large number of them fighting with the Japanese troops. A lot of innocent Japanese Americans would have been shot in the panic.
—Supreme Court Justice Hugo Black in an interview with The New York Times, 1967.

As this quote from Justice Black articulates, in the Court's eyes, Japanese Americans could never strip themselves of their enemy identity even after the legal categorization of "aliens ineligible for citizenship" was revoked through the McCarran-Walter Act of 1952. Korematsu v. United States, which has yet to be overturned, further illustrates the permanence of anti-Asian attitudes and the continued emphasis on Asian Americans foreignness (alienness) in times of national crisis, as seen with the targeting of Arab and South Asian Americans after 9/11, or the COVID-19 pandemic and the discriminations faced by those who were perceived to be Chinese. In all, Korematsu's case, paired with Ozawa and Thind's, demonstrates how the prioritization of whiteness, and the connection of whiteness to citizenship, was codified by the law in the early 20th century. Furthermore, the insistence on Asian Americans perpetual alienness led, and continues to lead, to physical and rhetorical violence on Asian-identified people in the United States.

Discussion Questions

How were Asian Americans legally viewed and constructed in the United States in the early 20th century?

In what ways does whiteness shape legal understandings of citizenship in the United States? What roles do Asian Americans play in reinforcing this understanding?

What historical context would contribute to why Asians in America, such as Ozawa and Thind, would align their positions in court with whiteness, rather than another racial determination?

Note on Vocabulary

In this essay, "white" is understood and used as a racial classification written into U.S. law, as seen in the Naturalization Law of 1790's "free white persons", or in legal records such as the Census. Whiteness, on the other hand, is used to describe a process or series of actions taken to align with legal rights and privileges afforded to "white" people in the United States.