and performance) in the making of Asian American subjectivity, it is important first to articulate the specific conditions that define Asian American racialization.
“A Race So Different”
Bashir’s contention in Lidless that the “iguanas were lucky [because the] Endangered Species Act was enforced” translates the actual legal conditions that occurred in Guantánamo. It is indicative of a state in which the racialized subject is at once drawn into the regulatory apparatuses of the law while the law itself exists in a state of suspension. In the Supreme Court’s landmark 2008 case Boumediene v. Bush, the High Court disappointed both Congress and the Bush administration by determining that Guantánamo detainees have the right to access and petition US courts for a writ of habeas corpus, or the right to appear before a judge and petition for release from detention.19 Lawyers for the Justice Department asserted that Guantánamo, which is technically in Cuba, is not a part of the United States and therefore not subject to US law. Two pages into a lawyer’s brief filed on behalf of one of the detainees, a Jordanian national of Palestinian descent named Jamil El-Banna, El-Banna’s lawyers refuted the government’s position by simply stating, “U.S. law applies at Guantanamo.”20 In order to illustrate this contention, the brief cited the Endangered Species Act and explained, “Animals there, including iguanas, are protected by U.S. laws and regulations, and anyone, including any federal official, who violates those laws is subject to U.S. Civil and criminal penalties.”21 In other words, iguanas had more legal protections at Guantánamo than the prisoners did. So while the law “applies” in the prison, its force is suspended in relation to the bodies of the detainees. Translating this phenomenon into a theatrical medium, Cowhig’s play gives this paradox flesh and form, allowing an audience to grasp some of its complex and contradictory implications.
This paradoxical legal status is not an invention of the GWOT. Rather, it has been a central feature of Asian American racialization in US law since the nineteenth century. The Japanese American concentration camps of World War Two, for example, bear a familiar resemblance to the suspension of the law at Guantánamo. Fred Korematsu, whose legal challenge to the Japanese American concentration camps is discussed in greater detail in chapters 3 and 4, states as much in an amicus curiae (friend of the court) brief filed in support of three men detained at Guantánamo in 2003. The brief submits that Korematsu’s experience of detention “without a hearing, and without any adjudicative determination that he had done anything wrong,” provides him with a “distinctive, indeed, unique perspective on the issue presented by the case.”22 Korematsu then concludes, “Although the specific legal issues presented in these cases differ from those the United States has faced in the past, the extreme nature of the government’s position is all-too-familiar.”23 Tracing these familiar resemblances is one of the central critical imperatives of A Race So Different.
The title of this book is drawn from another example of the “all-too-familiar” suspension of the law in its application to the Asian / Asian American body. Dissenting in Plessy v. Ferguson, the infamous 1896 Supreme Court case in which the Court maintained the constitutionality of legal segregation for African Americans, Justice John Marshal Harlan famously opposed Jim Crow laws by arguing, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”24 As many critics of the color-blind Constitution have shown, Harlan’s rhetoric of equality achieved the subordination of difference while maintaining a racial hierarchy that privileged whiteness as a neutrally central legal subject position.25 But if Harlan believed that African Americans could be provisionally included within the definition of universal legal personhood protected by the Constitution, Harlan was quick to observe that the Chinese were “a race so different from our own that we do not permit those belonging to it to become citizens of the United States . . . [and who are], with few exceptions, absolutely excluded from our country.”26 As such, even with Harlan’s limited expansion of constitutional protections to black subjects, the Chinese were produced as juridically exceptional limit figures against which the purportedly universal rights attached to US citizenship could be realized.
The problem, of course, is that Chinese people had not been “absolutely excluded” from the country. Or, more nearly, their legislative exclusion was relatively recent, having only been enacted with the 1882 Chinese Exclusion Act.27 Chinese and other Asian immigrants had been entering the country for over half a century before the act was passed and upheld by the Supreme Court in Chae Chan Ping v. United States, a ruling for which Harlan was in the majority.28 So while (on its face) the law simply excluded a group on the grounds of race and nation, the actual effect was far more complicated for Asian immigrants and Asian Americans already within the boundaries of the nation. Harlan’s rhetoric posited this “race so different” as at once within the nation while being “absolutely excluded” from it. This juridical status, simultaneously included in and excluded from the privileges and protections of the universal assurances of citizenship on the basis of race, is understood throughout this book as a state of racial exception.29
This book does not aim to (re)prove the fact of racial exception, but it is worth explaining the ways in which this concept will function here. I theorize racial exception by drawing together established theories of Asian American racialization with political theories of the state of exception as a space in which the law is in force but suspended. The term racial exception is utilized to serve as shorthand for the specifically juridical construction of Asian American subjectivity as shuttling in and out of the law, figured as always already illegal. This theorization of Asian American subjectivity is not novel, in and of itself. However, by using a term that emphasizes the juridical status of Asian Americans as simultaneously located within and outside the law, I am able to maintain focus on the importance of the law as a key factor in Asian American racialization.
The diverse populations that make up Asian America have long been cobbled together by dominant racial discourses that treat Asian Americans as perpetually foreign, always already illegal, or an invading mob and model minority that is both included within and excluded from the national body politic. During the Asian exclusion era, the US cultural imaginary struggled to manage Asian populations already within the country through a process that David Palumbo-Liu describes as the interplay of introjection and projection, creating “an image of Asians located not ‘in’ Asia nor in the United States, but of shifting and often contrary predications of ‘Asia’ into the U.S. imaginary.”30 The Asian American body began to shuttle between inclusion and expulsion, or what Karen Shimakawa defines as “national abjection,” whereby the abjection of the Asian body allows for the constitution of “stable borders/subjects.”31 As Shimakawa notes, national abjection “does not result in the formation of an Asian American subject or even an Asian American object,” because the abject is neither subject nor object.32 My use of racial exception thus serves two purposes. While relational to and compatible with introjection/projection and abjection, exception emphasizes the specific role that the law plays in the racialization of Asian Americans. Second, because the law requires a properly constituted subject in order for the body to be recognizable within legal discourse, exception explains the processes by which the law makes subjects out of bodies in order to apprehend them as such.
The concept of the exception has uniquely juridical valences born from a discussion between two Weimar-era theorists who existed on opposite ends of the political spectrum: Carl Schmitt, a conservative, Catholic jurist who ultimately joined the Nazi party, and Walter Benjamin, a Jewish, Marxist philosopher who committed suicide at the Franco-Spanish border when he could not escape the expanding sphere of Nazi occupation. Despite Schmitt’s repulsive political biography, his diagnoses of law and politics remain illuminating, provocative, and descriptively correct. In 1922, Schmitt theorized the state of exception as a moment when, during a crisis, the normative juridical order is suspended in order to protect the long-term security of the state’s constitutional order.33 For Schmitt, the exception was at the core of sovereign
