United States v. Bhagat Singh Thind
From time to time I’m going to post about Justice Sutherland’s significant opinions, as I conduct research to see if I want to write his biography. My first example is United States v. Bhagat Singh Thind, a 1923 case that presented the issue of whether a Sikh born in India could be naturalized under the prevailing statute, which said that you had to be “white” or of “African descent.” Thind argued that he was a Caucasian (in other words, Aryan) and thus was white pursuant to the statute.
Sutherland began by explaining that the term “caucasian” was unknown in 1790 when the first naturalization statute was written. He also argued that “[i]n 1790 the Adamite theory of creation—which gave a common ancestor to all mankind—was generally accepted, and it is not at all probable that it was intended by the legislators of that day to submit the question of the application of the words ‘white persons’ to the mere test of an indefinitely remote common ancestry, without regard to the extent of the subsequent divergence of the various branches from such common ancestry or from one another.” Sutherland therefore concluded that the stature was intended “to include only the type of man whom they knew as white [in 1790]. The immigration of that day was almost exclusively from the British Isles and Northwestern Europe, whence they and their forebears had come. When they extended the privilege of American citizenship to ‘any alien being a free white person’ it was these immigrants—bone of their bone and flesh of their flesh—and their kind whom they must have had affirmatively in mind.”
He concluded with this lucid (though unfortunate) passage on the state of race relations in the 1920s:
“What we now hold is that the words ‘free white persons’ are words of common speech, to be interpreted in accordance with the understanding of the common man, synonymous with the word ‘Caucasian’ only as that word is popularly understood. As so understood and used, whatever may be the speculations of the ethnologist, it does not include the body of people to whom the appellee belongs. It is a matter of familiar observation and knowledge that the physical group characteristics of the Hindus render them readily distinguishable from the various groups of persons in this country commonly recognized as white. The children of English, French, German, Italian, Scandinavian, and other European parentage, quickly merge into the mass of our population and lose the distincitive hallmarks of their European origin. On the other hand, it cannot be doubted that the children born in this country of Hindu parents would retain indefinitely the clear evidence of their ancestry. It is very far from our thought to suggest the slightest question of racial superiority or inferiority. What we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.”
This was a unanimous opinion. Congress revised the naturalization statute to include South Asians in 1946, though large-scale immigration on the score did not begin until the 1965 Act ended the national quota system.