By Chris Juergens
NORTHWEST ASIAN WEEKLY
Port Townsend native and Taiwanese American Robert Tsai’s 2019 book “Practical Equality: Forging Justice in a Divided Nation” discusses how lawyers and activists can utilize the court system to achieve equality and right historical wrongs in an era where the courts are becoming more conservative.
Tsai, a law professor at American University in Washington, D.C., spoke with the Northwest Asian Weekly about the key themes in his book, current legal cases relevant to immigrants, growing up in Port Townsend as an Asian American, and what distinguishes his legal philosophy from conservative jurists.
Tsai’s core thesis is that legal advocates should argue that Trump’s travel ban, the current disenfranchisement of felons, and other xenophobic, rascist, and discriminatory policies violate constitutional rights. Tsai contrasts this legal approach with the much harder task of trying to prove that a law is discriminatory against a given group. Even with Trump’s travel ban, which excludes citizens from primarily Muslim nations from entering the United States on the basis of religion, it is hard to prove in court—especially with conservative jurists—that it was made with the explicit intent to single out Muslims.
Tsai’s approach is a middle way, which in his book he describes as “another path forward through the usual tangle of lofty ideals and loss-cutting expediency.” He says that it is a “form of pragmatism […] to find other ways of doing justice when we have trouble agreeing to do it explicitly.” Tsai cites the successful challenges to New York’s stop and frisk rule and a 1934 Mississipi case where a Black defendent admitted to a crime under torture which was overturned by the U.S. Supreme Court.
Rather than try and prove that law enforcement and the judicial system singled out and mistreated an entire group of people, it was easier to prove that citizens were deprived of other rights. Cases like New York’s stop and frisk and the use of torture to extract a confession were found to violate Constitutional protections against unreasonable search and seizure and cruel punishment.
Tsai writes that “fairness can be a close approximation of equality in many situations, even if it’s not exactly the same.” In other words, minorities who receive discriminatory treatment can more easily prove they were unfairly treated through the denial of their rights without saying they were treated this way because they were minorities.
When asked about the rights of non-U.S. citizens, Tsai said that U.S. courts have ruled that people in the United States are entitled to some level of due process.
He said that the 14th Amendment, in theory, should apply to all people in the United States regardless of their immigration status, even if their protection might not be to the same level as that of a citizen. The 14th Amendment guarantees every person—without mentioning citizenship—equal protection under the law.
In regards to the current situation at the U.S. border, where migrants have been separated from their children and detained for long periods, Tsai said that technically, the 14th Amendment should apply to migrants. But he was quick to point out that where migrants are detained may make a difference.
He stated that Justice Brett Kavanaugh, the newest member of the U.S. Supreme Court, has in past cases, when he was a lower court judge, said that where a non-citizen was apprehended matters in regards to the protection under the Constitution. “It is definitely a complicated question,” Tsai stated.
While discussing his childhood, Tsai said he “basically grew up white” since there was almost no Asian American presence outside his home in Port Townsend at the time. He ate American food at school and participated in mainstream American cultural events. It was not until he went to college in southern California and interacted with many Asian Americans where he realized his identity as part of an Asian American community.
Tsai’s current research keeps him firmly rooted in the Northwest, even if he lives and works on the East Coast. He is researching and writing about the “Tacoma Method,” which was first used in Tacoma to expel Chinese immigrants en masse in 1885. The “Tacoma Method” was subsequently replicated in towns throughout the Northwest to aggressively expel Chinese immigrants.
The Northwest Asian Weekly concluded its discussion with Tsai by asking what distinguishes him from conservative jurists like Trump-appointees Neil Gorsuch and Brett Kavanaugh.
“Trump started his campaign by denouncing Muslims and Hispanic people […] Where I part ways [with these jurists] is that they are far more willing to blind themselves to nefarious motives [of the Trump administration],” Tsai said. “I would have asked where is your evidence of a threat [from people from nations included in the travel ban]. I would be much more skeptical of this administration’s claims. ”
Tsai’s book is a must-read for any concerned citizen, for both the layperson and legal scholar alike. For those without a legal background, the book is very readable and draws attention to critical rights all people have in the United States. For the legal scholar, the book helps devise practical legal strategies in the age of Trump and a conservative U.S. Supreme Court.
As such, the book refreshingly does not assume that future cases regarding equality for immigrants and minorities are already lost. Rather, the book highlights the importance of creating sound, practical arguments tailored to the current Supreme Court justices.
Chris can be reached at firstname.lastname@example.org.