Dow v. United States

Racial limitations to American immigration originated with the Naturalization Act of 1790, which defined eligibility for citizenship as confined to "any alien, being a free white person who shall have resided within the limits . . . of the United States for a term of two years".^[6]: 31 While the abolition of slavery resulted in a codicil to this policy in 1870, granting people "of African nativity or African descent" the right to naturalize, a series of prohibitive laws including the Page Act of 1875, the Chinese Exclusion Act of 1882, and the Alien Contract Labor Law of 1885 further restricted immigration from Asia based on race and class ideology.^[7]: 36 The Chinese Exclusion Act, as noted by Erika Lee, is remarkable for "establish[ing] Chinese—categorized by their race, class, and gender relations as the ultimate category of undesirable immigrants—as the models by which to measure the desirability (and "whiteness") of other immigrant groups".^[7]: 37 It is precisely this metric of "whiteness" which would be contested in dozens of court cases asserting the right of immigrants who did not fit neatly into a black/white racial schema to naturalize.

Several naturalization cases prior to Dow v. United States were decided based on what historians called the applicants' "racial prerequisites". Within these cases, judicial opinion as to how to appropriately measure a petitioner's "whiteness" was split between justices using "common knowledge rationales, appeal[ing] to popular, widely held conceptions of races and racial divisions",^[6]: 4 and "scientific evidence" rationales, which "justified racial divisions by reference to the naturalistic studies of humankind".^[6]: 4 Both rationales were used to exclude applicants for naturalization in the case of In re Ah Yup (1878), as well as in the United States Supreme Court case Ozawa v. United States.^[6]: 5

In the case of Syrian immigration, the "whiteness" of applicants had been affirmed in In re Najour (1909), In re Mudarri (1910), In re Ellis (1910), and Ex Parte Shahid (1913).^{[6]: 164–165} In the case of In re Najour, the petitioner's application for citizenship was granted based on a "scientific evidence" rationale. In his opinion on the case, District Judge Newman argued that the term "free white persons", "refers to race, rather than to color, and fair or dark complexion should not be allowed to control, provided the person seeking naturalization comes within the classification of the white or Caucasian race".^[8] Conversely, both Ex Parte Shahid and Ex Parte Dow were decided using "common knowledge" rhetoric. In Ex Parte Shahid, District Judge Henry Smith, although ultimately denying Shahid's application based on the petitioner's illiteracy, also alluded to racial ineligibility, writing with regard to the Naturalization Act of 1790: "it is safest to follow the reasonable construction of the statute . . . and understand it as restricting the words 'free white persons' to mean persons as then understood to be of European habitancy or descent".^[9]

Many Syrians saw the rulings prior to Dow v. United States and general consensus as an insult to their character. There was an understanding among the Syrians and former Ottoman subjects that whiteness was very important in the United States. They very quickly learned this after entering the US. In immigration records, they were originally referred to as white, and they realized it was important to keep this status. For example, Elkourie, a physician and president of the Syrian Young Men's Society in Birmingham, Alabama, stated that the Syrians were semitic and since most Jews at the time coming from Europe were considered semitic and white, Asian Semites should be considered white as well.^[10] This was Elkourie's way of persuading Americans that whiteness is more than just skin color, but character. He stated that “Semitic was the original civilizer, developer and intermediator of culture and learning" in order to appeal to those who believed those hailing from Asia were uncivilized.^[11] Therefore, a majority of Syrian-Americans saw the consensus that Syrians were not white as a sort of mistake that needed correcting.^[11]

Ex Parte Dow was decided on February 18, 1914, in District Court, E.D. South Carolina. Henry Smith, the same presiding District Judge who had ruled a year earlier in Ex Parte Shahid denied Dow's application for citizenship based on a rejection of the "scientific evidence" that Syrians are Caucasian. In his opinion on the case, District Judge Smith states with regard to the association of "whiteness" with Caucasian, "it is based upon a construction which would exclude some people generally known and termed as white, and include those who have been always considered as not forming a part of the white race".^[12]: 6 While the Judge admits that, unlike in the case of Ex Parte Shahid, the applicant had, "performed all the necessary formalities and would apparently from his intelligence and degree of information of a general character be entitled to naturalization",^[12]: 1 he ultimately rejects Dow's petition for naturalization based on the fact that, "the applicant is not that particular free white person to whom the act of Congress has donated the privilege of citizenship in this country with its accompanying duties and responsibilities".^[12]: 9

Following the ruling in Ex Parte Dow, members of Charleston, South Carolina's Syrian population organized fundraising and awareness campaigns to raise support for a judicial appeal.^[4]: 256 The resulting case, In re Dow, was decided on April 15, 1914, and followed the same ideological conflict between "scientific" and "common knowledge" of race. Arguments on behalf of the applicant focused on a contemporary understanding of anthropology and race which posited that Syrians are members of a "Semitic nation", and are therefore entitled to inclusion as members of the "Caucasian or white race".^[13]: 4 District Judge Henry Smith again demurred from this line of reasoning based on the assumption that "White persons", to the average citizen of the United States in 1790, would have meant Europeans.^[13]: 27 Using this "common knowledge" conceptualization of race, District Judge Henry Smith once again rejected George Dow's application for citizenship.^[13]: 30