Alien status renders asian legal political agency null and void – we turn to rhetorical agency via story telling to speculatively re-imagine and thus reclaim the American political landscape

As a nation constituted on the founding pronouncement, “We the People,” the narrative of the American nation is invariably tied to how citizenship is defined, both legally and discursively.1 Asian Americans have always occupied an ambiguous space within the American body politic, caught between competing discourses of inclusion and exclusion that have been determined as matters of law, primarily in respect to citizenship and immigration. As Lisa Lowe has observed,

In the last century and a half, the American citizen has been defined over against the Asian immigrant, legally, economically, and culturally. These definitions have cast Asian immigrants both as persons and populations to be integrated into the national political sphere and as the contradictory, confusing, unintelligible elements to be marginalized and returned to their alien origins.2

This article considers how Asian Americans have been ascriptively constructed in American law to serve as cultural foils to American citizenship and silenced in the process. In the 19th century, Asians were ostracized as a threatening foreign element requiring regulation and exclusion. In the 20th century, Asians were reconfigured as a model minority emblematic of the American dream to justify continued racial hierarchies elsewhere. This article identifies works of Asian American writers that provide counternarratives and counter-histories that respond to, assess, and critique the narratives that law produces, and considers how their writings seek to reclaim and re-imagine the place of Asian Americans in the American political and cultural landscape.

The silencing of Asian American subjects has been accomplished primarily through laws that sought to exclude them from rights of American civic membership, including immigration, naturalization, marriage, and property ownership.3 Perhaps the earliest example of such divestment occurred with the literal silencing of Asian American witnesses as a matter of law in People v. Hall (1854), where the California Supreme Court ruled that Chinese witnesses were barred from offering testimony against white citizens in court.4 George Hall had been found guilty for the murder of Chinese miner Ling Sing based on testimony of Chinese witnesses; the Court overturned his conviction by reasoning that California laws prohibiting African Americans and Native Americans from testifying against whites also extended to Asian foreigners. In the same way that Dred Scott v. Sandford (1857) attached inferiority to race to divest African Americans of the right to citizenship and the right to sue in court, People v. Hall employed the same rhetoric of racial inferiority to reason that Asian Americans should not be given the “right to swear away the life of a citizen” in court or any rights to civic participation.5 Whereas People v. Hall rendered the Asian community voiceless in the legal arena, the Naturalization Act of 1790, which limited the right of naturalized citizenship to free white persons, also ensured that Asian Americans would remain politically voiceless. By being rendered unable to speak for themselves within the civic realm, Asian Americans could be racialized and constructed into what Rey Chow describes as an “ethnic specimen,” a monolithic representative of a static foreign culture to be observed, scrutinized, and ultimately regulated.6

Critical race theorists such as Richard Delgado have identified the ways in which dominant culture produces a grand narrative about itself at the expense of marginalized minorities whose “voice and perspective—whose consciousness—has been suppressed, devalued, and abnormalized.”7 From the founding of the nation, the dominant culture has woven a myth of America as an exceptional nation of equality and opportunity, even while systematically excluding certain racial groups—enslaved African Americans, displaced Native Americans, and immigrant Asians—from that national narrative. Thus, critical race scholars look to counternarratives from these oppressed communities to confront and rebut myths created by dominant mainstream culture; as Margaret Chon describes, “outsider jurisprudence, whether grounded in class, gender, race or sexual orientation, has unambiguously interpreted the silence of the outsider as an ‘absence.’ Hence what makes storytelling distinctive methodologically is its emphasis on giving voice to the subaltern, the previously silent and therefore ignored or devalued legal subject.”8 For Asian American writers, storytelling becomes a means of reclaiming not only voice but also a better sense of Asian American collective culture silenced through legal mechanisms. Lisa Lowe suggests that culture is the terrain through which the individual speaks itself as a member of the contemporary national collectivity, but culture is also a mediation of history, the site through which the past returns and is remembered, however fragmented, imperfect, or disavowed. Through that remembering—that recomposition—new forms of subjectivity and community are thought and signified.9

For counternarratives, many critical legal scholars, such as Mari Matsuda, look to “the actual experience, history, culture, and intellectual tradition of people of color in America.”10 But one distinctive obstacle for the Asian American community is the paucity of historical narratives due to many years of legal exclusion. Thus, Asian American writers have become important in creating culture and tradition for Asian American communities, which includes filling in the gaps caused by exclusion.