Revisiting Yick Wo v. Hopkins

University of Illinois Law Review

Volumn 2008, Issue 5, 2008, Pages 1393-1404

  Bernstein, David E ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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EID: 55349116433     PISSN: 02769948     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (67)

1. Gabriel J. Chin, Unexplainable on Grounds of Race: Doubts About Yick Wo, 2008 U. ILL. L. REV. 1359.
2. 118 U.S. 356 (1886).
3. Chin, supra note 1, at 1390-91.
4. Professor Chin apparently mistakes the language of the 1866 Civil Rights Act, codified at the time at section 1977 of the Revised Statutes, for the language of a "statute implementing the treaty" with China.
5. See Barbier v. Connolly, 113 U.S. 27, 32 (1885); Butchers' Union Slaughter-House & Live-Stock Landing Co. v. Crescent City Live-Stock & Slaughter-House Co., 111 U.S. 746, 758-59 (1883) (Field, J., concurring); Civil Rights Cases, 109 U.S. 3, 23-24 (1883).
6. See Richard S. Kay, The Equal Protection Clause in the Supreme Court: 1873-1903, 29 BUFF. L. REV. 667, 688-89 (1980).
7. The Court treated race discrimination the same as any other category. It stated that the Fourteenth Amendment "extends its protections to races and classes, and prohibits any State legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the laws." Civil Rights Cases, 109 U.S. at 24. See generally Kay, supra note 6, at 6% (concluding that during this period, "the objection to discrimination on grounds of race may be merely a special case of the objection to classifications not reasonably related to a police power objective").
8. Indeed, Richard Kay claims that no class legislation claims brought to the Supreme Court succeeded before Yick Wo. Kay, supra note 6, at 689-95.
9. By contrast, many state courts interpreted the ban on class legislation more broadly. E.g., State v. Loomis, 22 S.W. 350, 353 (Mo. 1893) (concluding that a law banning mining and manufacturing businesses from paying wages in scrip was unconstitutional class legislation); State v. Goodwill, 10 S.E. 285, 288 (W. Va. 1889) (same); Godcharles v. Wigeman, 6 A. 354 (Pa. 1886) (same); Ex parte Westerfield, 55 Cal. 550 (1880) (holding that a law that prohibited baking on Sunday was unconstitutional class legislation).
10. See Mo. Pac. Ry. Co. v. Mackey, 127 U.S. 205 (1888).
11. Id. at 209.
12. Id.
13. Similarly, a law banning the sale of margarine to benefit dairy farmers, passed constitutional muster because "[t]he statute places under the same restrictions, and subjects to like penalties and burdens, all who manufacture, or sell, or offer for sale, or keep in possession to sell, the articles embraced by its prohibitions, thus recognizing and preserving the principle of equality among those engaged in the same business." Powell v. Pennsylvania, 127 U.S. 678, 687 (1888).
14. See Pace v. Alabama, 106 U.S. 583, 585 (1883).
15. See, e.g., Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 570 (1902) (invalidating an antitrust law that exempted only farmers and ranchers); Cotting v. Goddard, 183 U.S. 79, 114-15 (1901) (Harlan, J., concurring for six Justices) (invalidating a mine inspection law because it applied only to one of the many mining companies in the state); Gulf, Colo., & Santa Fe Ry. Co. v. Ellis, 165 U.S. 150, 166 (1897) (invalidating a law that allowed plaintiffs with small claims against railroads to recover fees and costs if the railroad initially refused to pay the claim and then lost at trial); Kay, supra note 6.
16. See David E. Bernstein, Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism, 92 GEO. L.J. 1 (2003). For example, the Supreme Court upheld laws regulating the payment of wages by mining and railroad companies. See, e.g., Rail & River Coal Co. v. Yaple, 236 U.S. 338 (1915) (requiring that coal miners' pay be based on the prescreened weight of the coal that they produced); Keookee Consol. Coal Co. v. Taylor, 234 U.S. 224 (1914) (requiring railroads to pay their employees in orders redeemable for cash, not scrip); Erie R.R. Co. v. Williams, 233 U.S. 685 (1914) (requiring railroads to pay their employees semimonthly and in cash).
17. 113 U.S. 703 (1885).
18. Id. at 710-11 (emphasis added).
19. Id. at 708-09.
20. 163 U.S. 537 (1896).
21. Id. at 551 ("Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences.").
22. E.g., Strauder v. West Virginia, 100 U.S. 303 (1879).
23. See Plessy, 163 U.S. at 552 ("If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.").
24. 129 U.S. 114, 124 (1889).
25. 139 U.S. 462, 468 (1891).
26. The Supreme Court ultimately held that the Equal Protection Clause was the primary constitutional barrier to class legislation, see Truax v. Corrigan, 257 U.S. 312, 333-34 (1921), but some late nineteenth-century opinions suggested that equal protection and due process could be used interchangeably in this regard.
27. See Powell v. Pennsylvania, 127 U.S. 678, 691 (1888) (Field, J., dissenting); In re Quong Woo, 13 F. 229 (Field, Circuit Justice, C.C.D. Cal. 1882). Professor Chin cites Quong Woo as an example of the Supreme Court's broad, Lochnerian interpretation of due process at this time, but that is far too much to read into a solo opinion written by the Court's most economically libertarian Justice.
28. Powell, 127 U.S. 678. And even Field would very likely have vigorously dissented from Lochner's holding that the Due Process Clause banned the government from regulating the hours of labor of ordinary occupations. Writing for the Court in Soon Hing v. Crowley, he dismissed the notion that the Fourteenth Amendment protects "the right of a man to work at all times." 113 U.S. 703, 709 (1885).
29. See Michael G. Collins, October Term, 1896 - Embracing Due Process, 45 AM. J. LEGAL HIST. 71 (2001).
30. See, e.g., Allgeyer v. Louisiana, 165 U.S. 578 (1897). Passing references to constitutional protection of liberty of contract were made in Frisbie v. United States, 157 U.S. 160, 165-66 (1895) (Brewer, J.), and Hooper v. California, 155 U.S. 648, 661-63 (1895) (Harlan, J., dissenting).
31. 113 U.S. 27 (1885).
32. Yick Wo v. Hopkins, 188 U.S. 356, 366-68 (1886).
33. Professor Chin and other commentators, see, e.g., Kay, supra note 6, at 689-95, have suggested that this is the essence of the opinion, so it is worth reiterating that at this point the Court is only showing why prior precedents with related facts are not dispositive, not providing the rationale for its ultimate holding.
34. Yick Wo, 118 U.S. at 368.
35. Id. at 368.
36. Chin, supra note 1, at 1364.
37. Id.
38. Yick Wo, 118 U.S. at 368.
39. SAMUEL FREEMAN MILLER, LECTURES ON THE CONSTITUTION OF THE UNITED STATES 660 (1893).
40. See, e.g., 2 JOHN W. BURGESS, COMPARATIVE CONSTITUTIONAL LAW 211 (1891);
41. CHRISTOPHER STUART PATTERSON, UNITED STATES AND THE STATES UNDER THE CONSTITUTION 265 (1888).
42. MILLER, supra note 39.
43. Yick Wo, 118 U.S. at 369.
44. Id.
45. Id.
46. Id. at 373.
47. Id. at 373-74.
48. Chin, supra note 1, at 1373.
49. After noting that this language "leaves room for the argument that the case broke new ground by holding that racial discrimination as a general matter 'is not justified,'" Professor Chin concludes that Yick Wo did not ultimately speak to race discrimination at all. Id. at 1376.
50. See generally CHARLES J. MCCLAIN, IN SEARCH OF EQUALITY: THE CHINESE STRUGGLE AGAINST DISCRIMINATION IN NINETEENTH-CENTURY AMERICA (1996);
51. David E. Bernstein, Lochner, Parity, and the Chinese Laundry Cases, 41 WM. & MARY L REV. 211 (1999).
52. Yick Wo, 118 U.S. at 374 (emphasis added).
53. My view that Yick Wo in general, and the unanimity of the opinion in particular, can be explained in part by federalism concerns is elaborated upon in Bernstein, supra note 49, at 274-76. If the Court had wished to rule in favor the Board of Supervisors, it had ample "cover" to do so. While the Court adopted the Petitioner's claim that eighty non-Chinese owners of wooden laundries were granted permits, the government's brief claimed that only two permits had been issued to laundry owners of wooden laundries, albeit both to whites. The government also argued that it had a plausible police power reason for denying the Chinese laundry permits - their laundries, unlike white laundries, had wooden rooftop scaffolding that presented a special fire hazard. Brief for Respondents in Error, Yick Wo v. Hopkins, 1885 WL 18153 at *1-2, *13-14, *20, *41. Given the Justices' unanimous willingness to accept pretexts for anti-Chinese laundry regulations a year earlier in Soon Hing v. Crowley, it seems likely that the unanimous opinion in Yick Wo must be explained by something other than an " internalist" account of legal doctrine. My suspicion is that the anti-Chinese riots that spread throughout the West in 1885-86 persuaded the Court that it needed to assert ultimate federal authority over Chinese immigration.
54. 245 U.S. 60, 81 (1917); see David E. Bernstein, Bolling, Equal Protection, Due Process, and Lochnerphobia, 83 GEO. L.J. 1253, 1270-71 (2005);
55. David E. Bernstein, Philip Sober Restraining Philip Drunk: Buchanan v. Warley in Historical Perspective, 51 VAND. L. REV. 799 (1998);
56. David E. Bernstein & Ilya Somin, Judicial Power and Civil Rights Reconsidered, 114 YALE L.J. 593, 626-40 (2004). For additional cases holding, implicitly or explicitly, that deprivations of liberty could not be justified by prejudice based on race or ethnicity, see Farrington v. Tokushige, 273 U.S. 284 (1927); Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).
57. See Bernstein & Somin, supra note 52 (discussing the Court's issuance of several surprisingly relatively liberal opinions regarding the rights of African-Americans in the 1910s).
58. Chin, supra note 1, at 1384.
59. See, e.g., Terrace v. Thompson, 263 U.S. 197 (1923) ("Appellants' contention that the state act discriminates arbitrarily against Nakatsuka and other ineligible aliens because of their race and color is without foundation.").
60. Moreover, given Buchanan v. Warley and later cases to the same effect, such as Harmon v. Tyler, 273 U.S. 668 (1927) and Richmond v. Deans, 281 U.S. 704 (1930), to accept Professor Chin's understanding of the relationship between Buchanan and the alien land law cases, one would have to believe the dubious proposition that the Court was far more sympathetic to African-American claims to live in integrated neighborhoods at this time than to the rights of persons of Asian descent to own any land whatsoever.
61. 223 U.S. 59 (1912).
62. Id. at 63 (citation partially omitted). Justice Holmes's suggestion is surprising, given that he tended to be unsympathetic to claims of discrimination by minorities, even by the standards of the day. See G. EDWARD WHITE, JUSTICE OLIVER WENDELL HOLMES: LAW AND THE INNER SELF 335, 341-42 (1993).
63. Quong Wing v. Kirkendall, 130 P. 2 (Mont. 1913). For a more detailed discussion of Quong Wing, see David E. Bernstein, Two Asian Laundry Cases, 24 J. SUP. CT. HIST. 95 (1999).
64. Chin, supra note 1, at 1373. Professor Chin cites Professor Joo, whose claim is actually more modest: "[T]he Yick Wo line of cases, although primarily based on the rhetoric of equal protection, embodies the main characteristics of Lochner-era substantive due process jurisprudence with regard to economic rights." 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, 356 (1995).
65. The extent to which opposition to class legislation motivated the "substantive due process" cases of the Lochner era is a subject of dispute among scholars. See, e.g., Barry Cushman, Some Varieties and Vicissitudes of Lochnerism, 85 B.U. L. Rev. 881, 883 (2005) (reviewing the controversy).
66. The matter is complicated, however, by the Court's apparent belief that denial of procedural due process with regard to property rights amounted to a "substantive" taking of property without just compensation. See Dobbins v. Los Angeles, 195 U.S. 223, 239 (1904). This is an illustration of the danger of applying modern concepts such as "substantive due process" anachronistically. Due process was not formally divided into substantive and procedural components until after the New Deal era. Previously, the Due Process Clause was thought to bar arbitrary interferences with property and liberty, regardless of how accomplished.
67. I've made this mistake in previous writings. See David Bernstein, Note, The Supreme Court and "Civil Rights," 1886-1908, 100 YALE L.J. 725 (1990).