Unexplainable on grounds of race: Doubts about Yick Wo

University of Illinois Law Review

Volumn 2008, Issue 5, 2008, Pages 1359-1392

  Chin, Gabriel J ^a  

^a UNIVERSITY OF ARIZONA   (United States)

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EID: 55349104160     PISSN: 02769948     EISSN: None     Source Type: Journal    
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References (259)

1. 118 U.S. 356 (1886).
2. Richard H. McAdams, Race and Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 CHI.-KENT L. REV. 605, 615 (1998) (referring to "the pathbreaking nineteenth-century equal protection case").
3. CHARLES EVANS HUGHES, THE SUPREME COURT OF THE UNITED STATES 226 (1928).
4. Wayte v. United States, 470 U.S. 598, 630 (1985) (Marshall, J., dissenting); Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 COLUM. L. REV. 1625, 1647 (1992).
5. Earl M. Maltz, Only Partially Color-Blind: John Marshall Harlan's View of Race and the Constitution, 12 GA. ST. U. L. REV. 973, 1016 (1996);
6. see also Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50 (1959) ("the classic case"); CALVIN MASSEY, AMERICAN CONSTITUTIONAL LAW: POWERS AND LIBERTIES 701 (2001) ("[a] classic example").
7. See, e.g., PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS 1021 (5th ed. 2006);
8. JESSE H. CHOPER ET AL., CONSTITUTIONAL LAW: CASES, COMMENTS, QUESTIONS 1180 (9th ed. 2001);
9. DANIEL A. FARBER ET AL., CONSTITUTIONAL LAW: THEMES FOR THE CONSTITUTION'S THIRD CENTURY 190 (3d ed. 2003);
10. RONALD D. ROTUNDA, MODERN CONSTITUTIONAL LAW: CASES AND NOTES 652 (8th ed. 2007);
11. CHARLES A. SHANOR, AMERICAN CONSTITUTIONAL LAW: STRUCTURE AND RECONSTRUCTION 693 (3d ed. 2006).
12. Robert Heller, Comment, Selective Prosecution and the Federalization of Criminal Law: The Need for Meaningful Judicial Review of Prosecutorial Discretion, 145 U. PA. L. REV. 1309, 1315-16 (1997);
13. see also, e.g., 3 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW § 18.8, at 319 (3d ed. 1999);
14. Jack Greenberg, Reflections on Leading Issues in Civil Rights, Then and Now, 57 NOTRE DAME L. REV. 625, 634-35 (1982) ("[Yick Wo] held that a San Francisco ordinance prohibiting the operation of laundries in wooden buildings denied equal protection of the laws because almost all the laundries in wooden buildings were operated by Chinese. Moreover, white laundry operators had obtained some exemptions from the law while Chinese had not.");
15. Ann Woolhandler, Demodeling Habeas, 45 STAN. L. REV. 575, 621-22 (1993) ("The landmark equal protection decision of Yick Wo v. Hopkins . . . is generally read as one of the first cases in which the Court allowed an equal protection challenge to discriminatory administration of the law . . . .").
16. DAVID COLE, NO EQUAL JUSTICE 159 (1999);
17. see also, e.g., In re Griffiths, 413 U.S. 717, 720 (1973); William N. Eskridge, Jr., Channeling: Identity-Based Social Movements and Public Law, 150 U. PA. L. REV. 419, 486 n.229 (2001) (describing Yick Wo as "invalidating a commercial laundry ordinance because it was enforced on the basis of ethnicity rather than on the basis of its stated public safety rationale");
18. Developments in the Law - Race and the Criminal Process, 101 HARV. L. REV. 1472, 1536 (1988) ("In the first of these landmark cases, Yick Wo v. Hopkins, the Supreme Court invalidated a facially neutral municipal ordinance that was applied discriminatorily against Chinese laundry operators. In invalidating the ordinance, the Court laid the equal protection foundation for the selective prosecution defense . . . .").
19. See, e.g., BREST, supra note 6, at 371, n.67 ("The Court did intervene in some egregious instances.");
20. OWEN M. FISS, 8 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910, at 309 (1993) ("[Yick Wo] anticipated] a theory of equal protection that awaited the Warren Court Era for its full vindication . . . .");
21. LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 99 (1993) ("Such victories, alas, were rare.").
22. See, e.g., Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117 (1996) (discussing race and class bias in prosecution of domestic violence).
23. COLE, supra note 8, at 159. It is always dangerous to claim that there are "no reported cases" on a question of law, but my research assistant and I looked, and we, like many other researchers, could find none. The closest may be People v. Harris, reversing a conviction and remanding for a new trial on the ground that the defense should have been presented to the jury. 5 Cal. Rptr. 852 (Cal. App. Dep't Super. Ct. 1961). Yick Wo may have had influence below the level of reported cases. It is a near-certainty that criminal defendants have won selective prosecution motions that were not appealed, or, after filing strong motions, got spectacular plea deals or judicial or prosecutorial dismissals on pretextual grounds.
24. See, e.g., FISS, supra note 9, at 309 (noting that the Court "left Yick Wo on the books but denied it any operative effect"); RANDALL KENNEDY, RACE, CRIME, AND THE LAW 354 (1997) ("Research has uncovered no cases . . . in which a court has ruled that, on grounds of racial discrimination, a prosecutor has abused his discretion.");
25. James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521, 1539-40 (1981) ("It says something about the wide berth the judiciary has given prosecutorial power that the leading case invalidating an exercise of prosecutorial discretion is the nearly century-old decision in Yick Wo v. Hopkins. . . . Yick Wo was the first and last time the United States Supreme Court struck down a prosecution for the invalid selection of a target.").
26. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 342 n.23 (1977).
27. See, e.g., Buchanan v. Warley, 245 U.S. 60 (1917) (invalidating a municipal racial housing segregation ordinance); Guinn v. United States, 238 U.S. 347 (1915) (invalidating a grandfather clause under the Fifteenth Amendment).
28. The Court granted relief in a number of cases alleging discriminatory jury selection. See, e.g., Rogers v. Alabama, 192 U.S. 226 (1904); Carter v. Texas, 177 U.S. 442 (1900); Neal v. Delaware, 103 U.S. 370 (1880).
29. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
30. Batson v. Kentucky, 476 U.S. 79 (1986).
31. A number of commentators offer proposals for refining the Court's approach to discriminatory prosecution. See, e.g., McAdams, supra note 2; Yoav Sapir, Neither Intent Nor Impact: A Critique of the Racially Based Selective Prosecution Jurisprudence and a Reform Proposal, 19 HARV. BLACKLETTER L.J. 127 (2003);
32. Marc Price Wolf, Note, Proving Race Discrimination in Criminal Cases Using Statistical Evidence, 4 HASTINGS RACE & POVERTY L.J. 395 (2007).
33. 347 U.S. 483 (1954).
34. Yick Wo v. Hopkins, 118 U.S. 356, 357 (1886) (quoting the San Francisco ordinance).
35. Id. at 358-59.
36. Id. at 359.
37. In re Wo Lee, 26 F. 471, 476 (C.C.D. Cal. 1886).
38. In re Yick Wo, 9 P. 139, 146 (Cal. 1885).
39. Yick Wo, 118 U.S. at 368-74.
40. People v. Montgomery, 117 P.2d 437, 446 (Cal. Ct. App. 1941).
41. See infra notes 34-96 and accompanying text.
42. See infra notes 97-124 and accompanying text.
43. See infra notes 107-24 and accompanying text.
44. See infra notes 125-92 and accompanying text.
45. See infra notes 130-60 and accompanying text.
46. See infra notes 161-92 and accompanying text.
47. See infra notes 224-30 and accompanying text.
48. KENNEDY, supra note 12, at 354-55.
49. Id.
50. Id.
51. Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897).
52. See Crowley v. Christensen, 137 U.S. 86, 94 (1890) (distinguishing Yick Wo in a liquor licensing case: Yick Wo involved "a business harmless in itself and useful to the community," while here "the business is not one that any person is permitted to carry on without a license, but one that may be entirely prohibited or subjected to such restrictions as the governing authority of the city may prescribe"); Yee Gee v. City & County of S.F., 235 F. 757 (N.D. Cal. 1916) (enjoining an ordinance strictly limiting hours of work in laundries); In re Quong Woo, 13 F. 229, 233 (Field, Circuit Justice, C.C.D. Cal. 1882) (invalidating an ordinance requiring permission of neighbors to operate a laundry: "[H]e has, under the pledge of the nation, the right to . . . follow any of the lawful ordinary trades and pursuits of life, without let or hindrance from the state . . . , except such as may arise from the enforcement of equal and impartial laws. His liberty to follow any such occupation cannot be restrained by invalid legislation of any kind; certainly not by a municipal ordinance that has no stronger ground for its enactment than the miserable pretense that the business of a laundry - that is, of washing clothes for hire - is against good morals or dangerous to the public safety"); Ex parte Sing Lee, 31 P. 245, 247 (Cal. 1892) (invalidating a laundry ordinance: "It is very clear to us that the right of an owner to use his property in the prosecution of a lawful business, and one that is recognized as necessary in civilized communities, cannot be thus made to rest on the caprice of a majority or any number of those owning property surrounding that which he desires to use"); see also Royall v. Virginia, 116 U.S. 572, 583 (1886) (stating that an attorney has a "constitutional right" to practice professionally without compliance with unconstitutional licensing provision).
53. Quong Woo, 13 F. at 233.
54. Note, Discriminatory Law Enforcement and Equal Protection from the Law, 59 YALE L.J. 354, 354 (1950).
55. Note, The Right to Nondiscriminatory Enforcement of State Penal Laws, 61 COLUM. L. REV. 1103, 1103 (1961).
56. Wayne R. LaFave, The Police and Nonenforcement of the Law - Part I, 1962 WIS. L. REV. 104, 135 (citations omitted).
57. 117 P.2d 437 (Cal. Dist. Ct. App. 1941), post-conviction relief denied, 125 P.2d 108, 110 (Cal. Dist. Ct. App. 1942).
58. Girl Kidnapping Charged to White Slave Ring Suspects, L.A. TIMES, Apr. 25, 1940, at A3.
59. Slave Ring Suspects Seized After Girl Gives Officers Tip, L.A. TIMES, Apr. 23, 1940, at A1.
60. Slave Syndicate Charge Denied, L.A. TIMES, July 31, 1940, at A11.
61. 'Black Widow' Vice Convictions Sustained: Appellate Court Turns Down Pleas of Ann Forrester and Portuguese Negro, L.A. TIMES, Sept 30, 1941, at A8. Her race is not clear, although the papers mentioned the race of other defendants so often that it is unlikely that it would have gone unremarked if she were African-American.
62. The case spawned a libel suit when Liberty Magazine reported allegations that an LAPD captain and former mayor Frank Shaw's brother had worked with the ring. Blasts at Shaw Regime Mark Opening of Trial: Ex-Mayor, Seeking Damages for Liberty Article, Charged with Being Head of Corrupt Machine, L.A. TIMES, Jan. 9, 1942, at A1;
63. Capt. Contreras Denies Part in Vice Syndicate: Officer Accused by 'Black Widow' Gives Shaw Suit Testimony, L.A. TIMES, Mar. 6, 1942, at A3.
64. Something was up: the Mayor of Los Angeles asked for leniency for the Black Widow because she provided information about corruption in earlier administrations. Black Widow Plea Explained: Mayor Says Leniency Urged Because of Aid She Gave Authorities, L.A. TIMES, Nov. 14, 1941, at A2.
65. 380 U.S. 609 (1965).
66. 386 U.S. 18 (1967).
67. The colorful attorney's first Supreme Court case had been an unsuccessful appeal of his own extortion conviction. See Lavine v. California, 286 U.S. 528 (1932) (per curiam). He also appeared in Tomoya Kawakita v. United States, 343 U.S. 717 (1952), Phyle v. Duffy, 334 U.S. 431 (1948), Adamson v. California, 332 U.S. 46 (1947), and Lisenba v. California, 314 U.S. 219 (1941). See also Morris Lavine, Legendary Trial Lawyer, L.A. TIMES, Dec. 1, 1982, at C4.
68. People v. Montgomery, 117 P.2d 437, 446 (Cal. Dist. Ct. App. 1941).
69. Id.
70. Dwyer v. People, 261 P. 858, 858 (Colo. 1927).
71. Soc'y of Good Neighbors v. Van Antwerp, 36 N.W.2d 308, 310 (Mich. 1949).
72. In re Certificate of Occupancy 500 Paxinosa Ave., 66 A.2d 225, 226 (Pa. 1949).
73. See People v. Tillman, 282 N.E.2d 231, 233 (Ill. App. Ct. 1972) ("The basic premise of the equal protection clause is that the state may not discriminatorily deprive an individual of his rights. In this case, however, there is no deprivation of a right because there is no right to commit crime.").
74. See State v. Baldonado, 441 P.2d 215, 217 (N.M. Q. App. 1968) (citing Montgomery).
75. See State v. O'Connor, 265 N.W.2d 709, 714 (S.D. 1978) ("The contention of the defendant, based as it is on the Yick Wo doctrine . . . is well answered in People v. Montgomery.") (citations omitted).
76. See Sims v. Cunningham, 124 S.E.2d 221, 225 (Va. 1962) (quoting Montgomery at length).
77. See also Washington v. United States, 401 F.2d 915, 924-25 (D.C. Cir. 1968) (expressing clear skepticism of the government's claim that equal protection is inapplicable to criminal prosecutions, but not deciding the issue).
78. See Highland Sales Corp. v. Vance, 186 N.E.2d 682, 688 (Ind. 1962); Michaels v. Twp. Comm. of Pemberton Tp., Burlington County, 67 A.2d 324, 326-27 (N.J. Super. Ct. Law Div. 1949) (citing Gorieb v. Fox, 274 U.S. 603 (1927)).
79. 347 U.S. 497 (1954).
80. Hirabayashi v. United States, 320 U.S. 81, 100 (1943).
81. 198 U.S. 500 (1905).
82. Id. at 506.
83. Id. at 507-08.
84. 344 U.S. 357 (1953).
85. Id. at 359.
86. Id.
87. 366 U.S. 582 (1961).
88. Id. at 588-89.
89. 368 U.S. 448 (1962).
90. Id. at 456.
91. 321 U.S. 1 (1944).
92. See McCleskey v. Kemp, 481 U.S. 279, 309 n.30 (1987) (citing Oyler and later cases in stating that "[t]his Court has repeatedly stated that prosecutorial discretion cannot be exercised on the basis of race"); United States v. Batchelder, 442 U.S. 114, 125 n.9 (1979) ("The Equal Protection Clause prohibits selective enforcement 'based upon an unjustifiable standard such as race, religion, or other arbitrary classification.'") (citing Oyler v. Boles, 368 U.S. 448, 456 (1962)).
93. Note, The Supreme Court, 1961 Term, 76 HARV. L. REV. 75, 121 (1962).
94. See Thomas E. Kellert, The Expansion of Equality, 37 S. CAL. L. REV. 400, 415 (1964) ("However, there has been a great deal of inconsistency and uncertainty in the application of this doctrine to law enforcement agencies.");
95. Alan J. Russo, Equal Protection from the Law: The Substantive Requirements for a Showing of Discriminatory Law Enforcement, 3 LOY. L.A. L. REV. 65, 65 n.2 (1970) ("Yick Wo, however, dealt with an administrative licensing board, and some state and lower federal courts have refused to apply it to law enforcement agencies which administer penal laws.");
96. Terrill A. Parker, Comment, Equal Protection As a Defense to Selective Law Enforcement by Police Officials, 14 J. PUB. L. 223, 227 (1965) ("Whereas Yick Wo wished to carry on the lawful business of laundering in a location made illegal by lack of a permit, others seek to escape prosecution for the commission of a crime by showing that there are those who have not been prosecuted for the same crime.");
97. Comment, Constitutional Law: Intentional Discriminatory Enforcement of Criminal Statute Held to Violate the Fifth Amendment, 55 MINN. L. REV. 1234, 1235 (1971) ("The courts are split, however, as to whether the equal protection prohibition against discriminatory enforcement should be applied to cases in which a criminal statute was discriminatorily enforced.");
98. Comment, Prosecutorial Discretion in the Initiation of Criminal Complaints, 42 S. CAL. L. REV. 519, 538 (1969) ("State and lower federal courts have divided on whether to extend the Yick Wo rule, which was specifically concerned with a licensing board, to law enforcement agents.");
99. Note, Current Developments in State Action and Equal Protection of the Law, 4 GONZ. L. REV. 233, 248 (1969) ("Some courts have refused to apply Yick Wo to enforcement of penal laws on the public policy that failure to prosecute certain persons should not nullify valid penal laws . . . . Yick Wo has been distinguished also on the premise that acts which are not harmful in themselves . . . should fall within the rule, while acts which are harmful in themselves . . . should not be within the rule.").
100. Dennis J. White, Comment, Curbing the Prosecutor's Discretion: United States v. Falk, 9 HARV. C.R.-C.L. L. REV. 372, 374 (1974) ("Resistance on this ground to the extension of Yick Wo, however, has not carried over into the more recent cases.");
101. Comment, The Ramifications of United States v. Falk on Equal Protection from Prosecutorial Discrimination, 65 J. CRIM. L. & CRIMINOLOGY 62, 63 (1974) ("The invalidity of the distinction was finally settled in the Supreme Court's reassertion of Yick Wo in Oyler v. Boles. The Court clearly implied that the application of a habitual criminal statute would be overturned if the petitioner had shown deliberate discrimination. Because habitual criminal statutes deal only with felonies (which are malum in se), the Supreme Court tacitly acknowledged that Yick Wo can be used to prevent the prosecution of any type of crime.");
102. Note, United States v. Falk: Developments in the Defense of Discriminatory Prosecution, 72 MICH. L. REV. 1113, 1115-17 (1974).
103. 540 P.2d 44 (Cal. 1975).
104. Id. at 50, 55-56; id. at 58 (Richardson, J., concurring).
105. Id. at 54 n.11.
106. Id. at 49.
107. Id. at 46.
108. Id. at 52.
109. Id. (quoting Two Guys v. McGinley, 366 U.S. 582, 588 (1961)); see also Jeffrey L. Garland, Note, Murguia v. Municipal Court - The Defense of Discriminatory Prosecution, 3 PEPP. L. REV. 351 (1976);
110. Sheri L. Perlman, Note, Murguia v. Municipal Court California Recognizes the Defense of Discriminatory Prosecution, 6 GOLDEN GATE U. L. REV. 885 (1976);
111. Gregory E. Wolff, Note, The Development of the Defense of Discriminatory Prosecution: Murguia v. Municipal Court, 8 SW. U. L. REV. 687 (1976).
112. Murguia, 540 P.2d at 50.
113. Id. at 51.
114. State v. Vadnais, 202 N.W.2d 657, 660 (Minn. 1972).
115. City of Minneapolis v. Buschette, 240 N.W.2d 500, 502-03 (Minn. 1976) (citations omitted).
116. Id. at 503.
117. State v. Russell, 343 N.W.2d 36, 37 (Minn. 1984).
118. 370 P.2d 722, 724 (Or. 1962) (citations omitted).
119. 325 P.2d 794, 804 (Or. 1958).
120. Bailleaux, 370 P.2d at 724 (citations omitted). The Oregon Supreme Court was wrong. See Murguia v. Municipal Court, 540 P.2d 44, 53-54, 54 n.10 (Cal. 1975) (stating that "the great majority of California authorities have similarly recognized the availability of such a defense").
121. State v. Hodgdon, 571 P.2d 557, 559 (Or. Ct. App. 1977) (citation omitted).
122. Argument for Appellant and Plaintiff in Error at 3-6, Yick Wo v. Hopkins, 118 U.S. 356 (1886) (Nos. 1280, 1281) (assignments of error were: (1) engaging in the laundry business is a natural right; (2) restriction of those in wooden buildings is a bill of attainder; (3) the ordinance deprives launderers of property without due process of law; and (4) the ordinance is discriminatorily applied in violation of the civil rights laws, the Equal Protection Clause, and treaties with China).
123. See, e.g., Peters v. San Antonio, 195 S.W. 989, 992 (Tex. Civ. App. 1917) ("The ordinance [in Yick Wo] was seeking to destroy the right of a man to conduct a lawful business in an arbitrary and unreasonable way . . . . It was an attempt to invade and destroy a vested right, and that could not be done in an unreasonable and oppressive way.").
124. Benno C. Schmidt, Jr., Juries, Jurisdiction, and Race Discrimination: The Lost Promise of Strauder v. West Virginia, 61 TEX. L. REV. 1401, 1469 (1983).
125. Thomas Wuil Joo, New "Conspiracy Theory" of the Fourteenth Amendment: Nineteenth Century Chinese Civil Rights Cases and the Development of Substantive Due Process Jurisprudence, 29 U.S.F. L. REV. 353, 353-56 (1995).
126. Earl M. Maltz, The Federal Government and the Problem of Chinese Rights in the Era of the Fourteenth Amendment, 17 HARV. J.L. & PUB. POL'Y 223, 245-48 (1994). Professor Maltz persuasively argues that the cases involving Chinese were "largely ignored." Id. at 223. He agrees that "the Yick Wo opinion was explicitly limited to deprivations of rights that the Court deemed 'fundamental.'" Id. at 248.
127. Another important article about the jurisprudence of this era is Richard S. Kay, The Equal Protection Clause in the Supreme Court, 1873-1903, 28 BUFF. L. REV. 667 (1980).
128. 113 U.S. 703 (1885).
129. Id. at 710; see also Barbier v. Connolly, 113 U.S. 27 (1885) (upholding regulations).
130. Yick Wo v. Hopkins, 118 U.S. 356, 366-67 (1886).
131. Id. at 370.
132. Id. at 374.
133. Id. at 373-74.
134. Id. at 365.
135. Id. at 370. The lower courts agreed that the petitioners had protected property interests. See In re Wo Lee, 26 F. 471, 474 (C.C.D. Cal. 1886) ("If it is competent for the board of supervisors to pass a valid ordinance prohibiting . . . following any ordinary, proper, and necessary calling . . . except at its arbitrary and unregulated discretion . . . then . . . there has been a wide departure from the principles . . . supposed to guard and protect the rights, property and liberties of the American people."); In re Yick Wo, 9 P. 139, 142 (Cal. 1885) ("[W]e do not find that they have prohibited the establishment of laundries, but that they have, as they well might do, regulated the places at which they should be established.").
136. See Duluth & Iron Range R.R. Co. v. St. Louis County, 179 U.S. 302, 305 (1900) ("[W]e conclude that the act which, it is asserted repealed or amended the contract was void, because a mere arbitrary exercise of power giving rise, if enforced, not only to a denial of the equal protection of the laws, but to a deprivation of property without due process of law."); Lake Shore & Mich. S. Ry. Co. v. Smith, 173 U.S. 684, 699 (1899) (stating that unreasonable rate-setting legislation is "a violation of that part of the constitution of the United States which forbids the taking of property without due process of law, and requires the equal protection of the laws"), overruled by Pa. R.R. Co. v. Towers, 245 U.S. 6 (1917); Yesler v. Bd. of Harbor Line Comm'rs, 146 U.S. 646, 655 (1892) ("By the . . . constitution of Washington no private property can be taken or damaged for public use without just compensation. The similar limitation upon the power of the general government, expressed in the Fifth Amendment, is to be read with the Fourteenth Amendment, prohibiting the states from depriving any person of property without due process of law, and from denying to any person within their jurisdiction the equal protection of the laws. The amendment undoubtedly forbids any arbitrary deprivation of life, liberty, or property, and secures equal protection to all under like circumstances in the enjoyment of their rights."); Barbier v. Connolly, 113 U.S. 27, 31 (1884) (Field, J.) (noting that the Fourteenth Amendment "undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights").
137. Atl. Coast Line R.R. Co. v. N.C. Corp. Comm., 206 U.S. 1, 20 (1907).
138. Chi., Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U.S. 418, 458 (1890).
139. See Detroit Bank v. United States, 317 U.S. 329, 337-38 (1943) ("Unlike the Fourteenth Amendment, the Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress. Even if discriminatory legislation may be so arbitrary and injurious in character as to violate the Due Process Clause of the Fifth Amendment, no such case is presented here.") (citations omitted); Steward Mach. Co. v. Davis, 301 U.S. 548, 584-85 (1937) ("The Fifth Amendment unlike the Fourteenth, has no equal protection clause . . . though we assume that discrimination, if gross enough, is equivalent to confiscation and subject under the Fifth Amendment to challenge and annulment.").
140. Thus, in American Sugar Refining Co. v. Louisiana, Justice Brown, author of Plessy, explained that taxation, an interference with a property right, could not be segregated; he upheld a business tax, but added that "[o]f course, if such discrimination were purely arbitrary, oppressive, or capricious, and made to depend upon differences of color, race, nativity, religious opinions, political affiliations, or other considerations having no possible connection with the duties of citizens as taxpayers," the tax would be invalid. 179 U.S. 89, 92 (1900).
141. Yick Wo v. Hopkins, 118 U.S. 356, 368 (1886).
142. Id. at 373 (quoting City of Balt. v. Radecke, 49 Md. 217 (1878)).
143. Put another way, the passage makes perfect sense if any group is substituted for Chinese - so long as the Court is talking about vested property tights. It may be perfectly constitutional to prohibit opticians from filling prescriptions for eyeglasses. Williamson v. Lee Optical of Okla., 348 U.S. 483, 486 (1955). But denial of property rights to opticians that are freely allowed to others (e.g., "all persons but opticians may build single family homes in Zone R-1") would certainly be unconstitutional.
144. See 195 U.S. 223 (1904).
145. Id. at 240.
146. Id. at 241.
147. 278 U.S. 116 (1928).
148. Id. at 122 (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)); see also, e.g., Gorieb v. Fox, 274 U.S. 603, 607-08 (1927) (distinguishing Yick Wo, stating that "[t]he ordinance there involved vested uncontrolled discretion in the board of supervisors, and this discretion was actually exercised for the express purpose of depriving the petitioner in that case of a privilege that was extended to others"); Boyd v. Bd. of Councilmen, 77 S.W. 669 (Ky. 1903) (following Yick Wo in building permit case).
149. See Mackay Tel. & Cable Co. v. City of Little Rock, 250 U.S. 94, 100 (1919) ("Nor was there an offer to show that the circumstances of the several companies and their telegraph lines were so much alike as to render any discrimination in the application of the pole tax equivalent to a denial of the equal protection of the laws.").
150. See Breedlove v. Suttles, 302 U.S. 277, 283 (1937).
151. See 245 U.S. 60 (1917). See generally David Bernstein, Philip Sober Retraining Philip Drunk: Buchanan v. Warley in Historical Perspective, 51 VAND. L. REV. 799 (1998).
152. Yick Wo, 118 U.S. at 368.
153. Later cases explicitly applied the Fourteenth Amendment to Chinese. See United States v. Wong Kim Ark, 169 U.S. 649 (1898) (applying citizenship clause of Fourteenth Amendment to Chinese); Wong Wing v. United States, 163 U.S. 228 (1896) (holding Chinese entitled to jury trial prior to punishment for crime).
154. See Ming-sung Kuo, The Duality of Federalist Nation-Building: Two Strains of Chinese Immigration Cases, 67 ALB. L. REV. 27 (2003) (comparing Yick Wo and the Chinese exclusion case);
155. Tim Wu, Treaties' Domains, 93 VA. L. REV. 571, 615-22 (2007) (discussing Burlingame Treaty).
156. See Argument for Appellant, supra note 97, at 6-8 (citing the Declaration of Independence, the Fourteenth Amendment, sections 1977 and 1979 of the Revised Statutes (now 42 U.S.C. §§ 1981(a), 1983), section 1 of article 1 of the California Constitution, and four provisions of the treaties with China).
157. In re Tiburcio Parrott, 1 F. 481, 483 (C.C.D. Cal. 1880) (invalidating the law).
158. In re Lee Sing, 43 F. 359, 360-61 (C.C.N.D. Cal. 1890) (invalidating the law).
159. In re Tiburcio Parrott, 1 F. at 504; see also In re Ah Fong, 1 F. Cas. 213, 217 n.3 (Field, Circuit Justice, C.C.D. Cal. 1874) (No. 102).
160. See generally David Bernstein, Lochner, Parity, and the Chinese Laundry Cases, 41 WM. & MARY L. REV. 211 (1999) (reviewing cases brought by laundrymen regarding hostile legislation);
161. David Bernstein, Two Asian Laundry Cases, 23 J. SUP. CT. HIST. 95 (1999) (discussing two Asian laundry cases in their historical contexts).
162. As the circuit court opinion put it, "Can a court be blind to what must be necessarily known to every intelligent person in the state?" In re Wo Lee, 26 F. 471, 475 (C.C.D. Cal. 1886), rev'd sub nom. Yick Wo v. Hopkins, 118 U.S. 356 (1886).
163. 92 U.S. 275 (1875).
164. Id. at 279.
165. Id.
166. Treaty of Peace, Amity, and Commerce, U.S.-China, June 18, 1858, 12 Stat. 1023.
167. Additional Articles to the Treaty Between the United States and China, U.S.-China, art. V, July 28, 1868, 16 Stat. 739.
168. Id. art. VI.
169. Treaty Between the United States and China, Concerning Immigration, U.S.-China, art. III, Nov. 17, 1880, 22 Stat. 826.
170. 42 U.S.C. § 1981(a) (2000).
171. 427 U.S. 160 (1976).
172. Id. at 195-205 (White, J., dissenting). See generally Charles J. McClain, Jr., The Chinese Struggle for Civil Rights in Nineteenth Century America: The First Phase, 1850-1870, 72 CAL. L. REV. 529, 530-31 (1984) ("The evidence is simply indisputable . . . that section 1981 derives from section 16 of the Civil Rights Act of 1870, a statute that was not designed - at least not in any primary sense - to promote the civil rights of the nation's newly emancipated black citizens, but rather to respond to the plight of another aggrieved racial minority - the Chinese of California."). The treaties and 42 U.S.C. § 1981 offered protection, but what subconstitutional law giveth, it may taketh away. The next round of laws were designed to exclude Asians on the basis of race.
173. See Gabriel J. Chin, Segregation's Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. REV. 1 (1998).
174. E.g., Lau Ow Bew v. United States, 144 U.S. 47 (1892); United States v. Jung Ah Lung, 124 U.S. 621 (1888); Baldwin v. Franks, 120 U.S. 678 (1887).
175. Ex parte Hung Hang, 108 U.S. 552 (1883); Ex parte Tom Tong, 108 U.S. 556 (1883).
176. 112 U.S. 536 (1884), rev'g In re Cheen Heong. 21 F. 791 (Field, Circuit Justice, C.C.D. Cal. 1884).
177. Id. at 559-60.
178. Soon Hing v. Crowley, 113 U.S. 703, 706 (1885) ("The petition also averred that section four of the ordinance was in contravention of the provisions of the Burlingame Treaty.").
179. Under the procedure apparently applicable at the time, Field's opinion prevailed in the trial court, even though the other three judges on the panel disagreed with him.
180. See, e.g., In re Look Tin Sing, 21 F. 905, 908 (Field, Circuit Justice, C.C.D. Cal. 1884) (noting that a person of Chinese racial ancestry born in the U.S. is a U.S. citizen); In re Ah Fong, 1 F. Cas. 213, 218 (Field, Circuit Justice, C.C.D. Cal. 1874) (No. 102) (stating that "[t]he only limitation upon the free ingress into the United States and egress from them of subjects of China is the limitation which is applied to citizens or subjects of the most favored nation; and as the general government has not seen fit to attach any limitation to the ingress of subjects of those nations, none can be applied to the subjects of China. . . . The detention of the petitioner is therefore unlawful under the treaty," and discussing federal civil rights statutes implementing the Fourteenth Amendment).
181. In re Quong Woo, 13 F. 229, 233 (Field, Circuit Justice, C.C.D. Cal. 1882) (invalidating an ordinance requiring permission of neighbors to operate a laundry: "The petitioner is an alien, and under the treaty with China is entitled to all the rights, privileges, and immunities of subjects of the most favored nation with which this country has treaty relations. . . . [H]e has, under the pledge of the nation, the right to remain, and follow any of the lawful ordinary trades and pursuits of life, without let or hindrance from the state, or any of its subordinate municipal bodies, except such as may arise from the enforcement of equal and impartial laws. His liberty to follow any such occupation cannot be restrained by invalid legislation of any kind; certainly not by a municipal ordinance that has no stronger ground for its enactment than the miserable pretense that the business of a laundry - that is, of washing clothes for hire - is against good morals or dangerous to the public safety.").
182. Baker v. City of Portland, 2 F. Cas. 472, 475 (C.C.D. Or. 1879) (No. 777) ("This treaty having guaranteed to the Chinese the right to reside here permanently with the same privileges and immunities as the subjects of Great Britain, Germany and France, which certainly includes the right to labor for a living, if it includes anything, the state cannot, in the exercise of any of its admitted general powers, limit or deny this right.").
183. Ho Ah Kow v. Nunan, 12 F. Cas. 252, 256 (C.C.D. Cal. 1879) (No. 6546).
184. Yick Wo v. Hopkins, 118 U.S. 356, 368-69 (1885).
185. See infra notes 193-212 and accompanying text.
186. Davis v. Beason, 133 U.S. 333, 346-48 (1890) (upholding a law criminalizing voting by Mormons).
187. Minor v. Happersett, 88 U.S. 162, 178 (1874) (upholding the disenfranchisement of women).
188. Yick Wo, 118 U.S. at 369.
189. Id.
190. Truax v. Raich, 239 U.S. 33 (1915).
191. Id. at 41-42; see also ERNST FREUND, POLICE POWER, PUBLIC POLICY AND CONSTITUTIONAL RIGHTS 729 (1904) (asserting that states cannot prohibit aliens from working: "The federal adjucations in the matter of
192. 274 U.S. 392 (1927).
193. Id. at 396.
194. Ozawa v. United States, 260 U.S. 178, 194 (1922).
195. Chin, supra note 144, at 6.
196. Dudley O. McGovney, The Anti-Japanese Land Laws of California and Ten Other States, 35 CAL. L. REV. 7, 7 n.1 (1947); see also Gorman v. Forty-Second St., M. & St. N. Ave. Ry. Co., 203 N.Y.S. 632, 633-34 (App. Div. 1924) (finding that subjects of Great Britain are not ineligible aliens).
197. Sugarman v. Dougall, 413 U.S. 634, 654 (1973) (Rehnquist, J., dissenting). The point of these laws was rarely disguised. E.g., Mitsuuchi v. Security-First Nat'l Bank of L.A., 229 P.2d 376, 378 (Cal. Ct. App. 1951) ("[W]e note that it was the public policy of the State to prevent title to agricultural lands to vest directly or indirectly in persons of Japanese ancestry who were not American citizens.").
198. 263 U.S. 197 (1923).
199. "Declaration" was a formal legal step in the naturalization process involving filing papers, not merely an oral statement.
200. Terrace, 263 U.S. at 220.
201. Id.
202. 263 U.S. 225 (1923).
203. Id. at 233.
204. Cockrill v. California, 268 U.S. 258, 263 (1925).
205. Porterfield v. Webb, 263 U.S. 225, 233 (1923).
206. Frick v. Webb, 263 U.S. 326, 333-34 (1923).
207. See People v. Morrison, 13 P.2d 803, 804 (Cal. Ct. App. 1932), appeal dismissed per curiam for want of a substantial federal question, 288 U.S. 591 (1933).
208. Nebbia v. New York, 291 U.S. 502, 526 (1934) (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886); Terrace v. Thompson, 263 U.S. 197 (1923); Webb v. O'Brien, 263 U.S. 313 (1923)).
209. Presumably, on a federalism rationale, immigrants could not be prohibited from controlling some real property for residential purposes; if states could force them to sleep in the street that would be tantamount to forcing them to leave. But no cases have been found suggesting that courts recognized a federal constitutional right to any degree of control over land for commercial purposes of any sort.
210. 334 U.S. 1 (1948) (prohibiting judicial enforcement of racially restrictive covenants).
211. 332 U.S. 633 (1948).
212. See id. at 646-74.
213. Id. at 686 (Jackson, J., dissenting).
214. See Sei Fujii v. State, 242 P.2d 617, 630 (Cal. 1952) ("The California alien land law is obviously designed and administered as an instrument for effectuating racial discrimination, and the most searching examination discloses no circumstances justifying classification on that basis."); State v. Oakland, 287 P.2d 39, 42 (Mont. 1955) ("[T]his court now finds the Alien Land Law . . . unconstitutional and void as being in contravention of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States."); Kenji Namba v. McCourt, 204 P.2d 569 (Or. 1949). In Takahashi v. Fish & Game Comm., 334 U.S. 410, 422 (1948), seven justices held that the principle of the alien land law cases did not permit denial of fishing licenses to racially ineligible aliens. However, the Court refused to overrule the alien land cases. Id. at 420-22. Justices Reed and Jackson dissented. Id. at 427, 431.
215. 278 U.S. 123 (1928).
216. Id. at 128-29 ("Giving to the terms of the treaty, as we are required by accepted principles, a liberal rather than a narrow interpretation, we think, as the state court held, that the terms 'trade' and 'commerce,' when used in conjunction with each other and with the grant of authority to lease land for 'commercial purposes' are to be given a broader significance than that pressed upon us, and are sufficient to include the operation of a hospital as a business undertaking; that this is a commercial purpose for which the treaty authorizes Japanese subjects to lease lands.").
217. See 265 U.S. 332 (1924); see also In re Naka's License, 9 Alaska 1 (D. Alaska 1934) (determining that a Japanese citizen was entitled to a liquor license under a treaty).
218. Asakura, 265 U.S. at 341; see also, e.g., FRANCIS NEWTON THORPE, THE ESSENTIALS OF AMERICAN CONSTITUTIONAL LAW 206 (1917) ("The discrimination is none the less unconstitutional because the person discriminated against is an alien, when the treaty between the United States and the sovereignty to which the alien owes allegiance secures to the alien in the United States 'the same rights, privileges, immunities, [equal treatment], and exemptions . . . .'" (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886))).
219. Yick Wo, 118 U.S. at 374.
220. Id.
221. It remains true that states have limited authority to discriminate against noncitizens, while the national government has much broader discretion to grant or deny benefits to aliens. Compare Graham v. Richardson, 403 U.S. 365, 374-77 (1971) (state cannot deny public benefits to resident aliens), with Mathews v. Diaz, 426 U.S. 67, 84-85 (1976) (federal government can select which aliens to benefit: "The equal protection analysis also involves significantly different considerations because it concerns the relationship between aliens and the States rather than between aliens and the Federal Government").
222. Michael J. Klarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213, 235 (1991). But of course, when dealing with fundamental rights or other vested interests, discrimination is less relevant because the rights may be protected from infringement even on a nondiscriminatory basis.
223. Buck v. Bell, 274 U.S. 200, 208 (1927) (Holmes, J.).
224. Chin, supra note 144, at 12-14.
225. 130 U.S. 581, 609-11 (1889).
226. Fong Yue Ting v. United States, 149 U.S. 698 (1893).
227. Chae Chan Ping, 130 U.S. at 594.
228. Id. at 606.
229. FISS, supra note 9, at 300.
230. Chew Heong v. United States, 112 U.S. 536, 568 (1884) (Field, J., dissenting).
231. Plessy v. Ferguson, 163 U.S. 537, 561 (1896) (Harlan, J., dissenting), overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954).
232. Mathews v. Diaz, 426 U.S. 67, 80 (1976).
233. 106 U.S. 583 (1883), overruled by McLaughlin v. Florida, 379 U.S. 184 (1964).
234. Id. at 585.
235. 481 U.S. 279 (1987).
236. Id. at 291 n.8.
237. Pace, 106 U.S. at 585.
238. 163 U.S. 537 (18%), overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954).
239. Plessy approved of more than separate but equal; in 1899, Justice Harlan writing for a unanimous Court upheld a Georgia county's decision not to have a high school for African-Americans at all. See Cumming v. Bd. of Educ., 175 U.S. 528, 544-45 (1899).
240. Snowden v. Hughes, 321 U.S. 1, 11 (1944) ("If the action of the Board is official action it is subject to constitutional infirmity to the same but no greater extent than if the action were taken by the state legislature. . . . [S]tate action, even though illegal under state law, can be no more and no less constitutional under the Fourteenth Amendment than if it were sanctioned by the state legislature.").
241. Justices Field, Grey, and Harlan participated in Pace, Yick Wo, Chae Chan Ping, and Plessy; Justices Bradley and Miller participated in the first three; Chief Justice Fuller participated in Chae Chan Ping and Plessy.
242. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).
243. 113 U.S. 703 (1885).
244. Id. at 710.
245. Id. at 711.
246. Id.
247. 170 U.S. 213 (1898).
248. Id. at 222 (quoting Ratliff v. Beale, 20 So. 865, 868 (Miss. 1896)).
249. Id.
250. Id. at 225; see also Palmer v. Thompson, 403 U.S. 217, 224 (1971) ("Petitioners have also argued that respondents' action violates the Equal Protection Clause because the decision to close the pools was motivated by a desire to avoid integration of the races. But no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it."); Washington v. Davis, 426 U.S. 229, 243 (1976) ("Whatever dicta [Palmer v. Thompson] may contain, the decision did not involve, much less invalidate, a statute or ordinance having neutral purposes but disproportionate racial consequences.").
251. Soon Hing v. Crowley, 113 U.S. 703, 708 (1885).
252. See, e.g., Salsburg v. Maryland, 346 U.S. 545 (1954) (finding no equal protection violation in applying the exclusionary rule to some offenses but not to others); Gardner v. Michigan, 199 U.S. 325 (1905); Missouri v. Lewis, 101 U.S. 22, 31 (1879) ("[T]here is nothing in the Constitution to prevent any State from adopting any system of laws or judicature it sees fit for all or any part of its territory. . . . If every person residing or being in either portion of the State should be accorded the equal protection of the laws prevailing there, he could not justly complain of a violation of the clause referred to. For, as before said, it has respect to persons and classes of persons. It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances.").
253. 470 U.S. 598 (1985).
254. Id. at 608 n.10; id. at 630-31 (Marshall, J., dissenting).
255. 481 U.S. 279 (1987).
256. Id. at 293 n.12.
257. 517 U.S. 456, 466 (1996).
258. Id. (citation omitted).
259. Powers v. Ohio, 499 U.S. 400, 402 (1991).