Yick Wo re-revisited: Nonblack nonwhites and fourteenth amendment history

University of Illinois Law Review

Volumn 2008, Issue 5, 2008, Pages 1427-1440

  Joo, Thomas W ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 55349149393     PISSN: 02769948     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (74)

1. 2008 UNIV. ILL. L. REV. 1359.
2. 118 U.S. 356 (1886).
3. See 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 (1995).
4. Chin, supra note 1, at 1376.
5. On this trend, see generally, e.g., G. EDWARD WHITE, THE AMERICAN JUDICIAL TRADITION: PROFILES OF LEADING AMERICAN JUDGES 106 (3d ed. 2007).
6. See Plessy v. Ferguson, 163 U.S. 537 (1896).
7. See Allgeyer v. Louisiana, 165 U.S. 578 (1897). Allgeyer did not state whether E. Allgeyer & Co., the plaintiffs business, was incorporated, but its contracting counterparty was. Id. at 580. According to the Court, both businesses "had the right to enter into a contract." Id. at 592.
8. Chin, supra note 1, at 1382.
9. The 1880 Treaty was a "modification" of the previous treaties between the U.S. and China, signed in 1869 and 1858. It permitted the U.S. to restrict, but not prohibit, Chinese immigration and guaranteed Chinese subjects the right "to go and come of their own free will." Treaty on Immigration, U.S.-China, art. II, Nov. 17, 1880, 22 Stat. 826. The Chinese Exclusion Acts, which prohibited new Chinese immigration and prohibited the re-entry of Chinese residents who exited the United States, abrogated the 1880 Treaty. Nonetheless, the Court upheld the Exclusion Acts immediately after Yick Wo, casting further doubt on Chin's insistence that Treaty rights were important in Yick Wo. See Chae Chan Ping v. United States, 130 U.S. 581 (1889).
10. Chin, supra note 1, at 1364.
11. Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Article VI of the 1868 Treaty had similar language.
12. The 1868 Treaty (known as the Burlingame Treaty), not mentioned in Yick Wo, enumerated a few specific, noneconomic rights not relevant to the case, such as freedom of religion and the right to attend public schools on par with subjects of the most favored nation. See Additional Articles to the Treaty Between the United States and China, July 28, 1868, 16 Stat. 739.
13. Yick Wo, 118 U.S. at 369 (emphasis added).
14. Id. Chin states that section 1977 of the Revised Statutes (predecessor to the current 42 U.S.C. § 1981) was passed to implement the Treaty. Chin, supra note 1, at 1381-82. The legislative history of the statute, however, clearly indicates that it was passed, in 1870, to protect Chinese rights under both the 1868 Treaty and the Fourteenth Amendment. See CHARLES J. MCCLAIN, JR., IN SEARCH OF EQUALITY: THE CHINESE STRUGGLE AGAINST DISCRIMINATION IN NINETEENTH-CENTURY AMERICA 36-38 (1994) (quoting resolution introduced by Senator Stewart, sponsor of the bill that became section 1977); see also Runyon v. McCrary, 427 U.S. 160, 192 (1976) (White, J., dissenting). Furthermore, the Yick Wo Court's brief mention of the statute suggests that it understood the statute as an implementation of the Amendment alone and not of the Treaty.
15. Because the statute was passed "accordingly," the Amendment is also necessary to support the statutory argument.
16. 118 U.S. at 369.
17. Id. at 374.
18. Chin states that the case arose "in an era where the Court believed the Constitution robustly protected economic rights," particularly the right to pursue a harmless occupation. Chin, supra note 1, at 1365. To be clear, Yick Wo was not decided "in" such an era, but marked the turning point from an era that did not recognize such rights to one that did. Economic rights had been recognized in the Ninth Circuit, largely thanks to Justice Field implementing his Slaughter-House dissenting views, but not yet by the Supreme Court. See Howard Jay Graham, Justice Field and the Fourteenth Amendment, 52 YALE L.J. 851, 883 (1943).
19. See 83 U.S. (16 Wall.) 36, 66-67 (1873).
20. Id. at 71-72.
21. Id. at 74-76. Rights of national citizenship include those enumerated in the Constitution and international law. Id. at 79-80.
22. Id. at 80-81.
23. Id. at 81. The Court's discussion clearly implies that the butchers were not black, although the opinion does not mention their race. In any event, regardless of their race, the ordinance in question did not appear to have been aimed at oppressing blacks.
24. CHARLES FAIRMAN, MR. JUSTICE MILLER AND THE SUPREME COURT, 1862-1890, at 197-98 (Harvard Univ. Press 1939) (citing Munn v. Illinois, 94 U.S. 113 (1877) and the other Granger Cases).
25. See WHITE, supra note 5, at 106; see also Davidson v. New Orleans, 96 U.S. 97, 107-08 (1878) (Bradley, J., concurring) (articulating an early version of "substantive due process" by arguing that courts must consider the "cause and object" of a burden on private property as well as the procedure by which it was imposed).
26. As I have argued elsewhere, Field's Ninth Circuit had a critical influence on Yick Wo. See Joo, supra note 3, at 363-65. Yick Wo closely resembles the Ninth Circuit opinion below, In re Wo Lee, 26 F. 471 (C.C.D. Cal. 1886), down to its curious reliance on a Maryland state case, Baltimore v. Radecke, 49 Md. 217 (1878).
27. In an 1882 oral argument, Justice Miller claimed he had never heard any Justice espouse the theory and noted that Slaughter-House had not conclusively rejected it. FAIRMAN, supra note 24, at 186-87 (quoting oral argument in San Mateo County v. S. Pac. R.R. Co., 116 U.S. 138 (1885)). San Mateo raised the question of whether railroad corporations were "persons" protected under the Amendment. While that case was dismissed as moot, a related case, Santa Clara v. S. Pac. R.R. Co., 118 U.S. 394 (1886), decided the same day as Yick Wo, stated, without elaboration, that the Amendment applies to corporations.
28. ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION 580-81 (1988).
29. 109 U.S. 3 (1883).
30. Chief Justice Waite was probably the only exception. Although he was a Republican, appointed by President Grant, he was the author of Munn v. Illinois and remained tolerant of state economic regulation. See WHITE, supra note 5, at 106.
31. See John P. Frank, Are the Justices Quasi-Legislators Now?. 84 NW. U. L. REV. 921, 921 (1990).
32. See LEE EPSTEIN & JEFFREY A. SEGAL, ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS 94 (2005); Frank, supra note 31, at 921.
33. See, e.g., Santa Clara v. S. Pac. R.R. Co., 118 U.S. 394 (1886); Wabash v. Illinois, 118 U.S. 557 (1886).
34. See Chi., Milwaukee & St. Paul Ry. v. Minnesota, 134 U.S. 418, 461 (1890).
35. See generally EDWARD S. CORWIN, LIBERTY AGAINST GOVERNMENT (1948).
36. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 386-88 (1798).
37. See, e.g., Wynehamer v. People, 13 N.Y. 378 (1856); CORWIN, supra note 35, at 114-15.
38. See Dred Scott v. Sandford, 60 U.S. 393, 450-52 (1856).
39. Chin, supra note 1, at 1374.
40. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW § 11.1 (7th ed. 2004).
41. Chin, supra note 1, at 1387-88; see also Gabriel J. Chin, The Plessy Myth: Justice Harlan and the Chinese Cases, 82 IOWA L. REV. 151 (1996);
42. Gabriel J. Chin, The First Justice Harlan by the Numbers: Just How Great Was "The Great Dissenter?", 32 AKRON L. REV. 629 (1999); Joo, supra note 3, at 364.
43. Chin, supra note 1, at 1373.
44. Id.
45. Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886).
46. See, e.g., Barbier v. Connolly, 113 U.S. 27 (1884); Davidson v. New Orleans. 96 U.S. 97, 105 (1878); Munn v. Illinois, 94 U.S. 113 (1876).
47. For example, Chin's article does not mention Slaughter-House, the leading Fourteenth Amendment case at the time, or the Granger Cases, which directly addressed economic rights.
48. Chin, supra note 1, at 1376.
49. See Jack M. Balkin, "Wrong the Day It Was Decided": Lochner and Constitutional Historicism, 85 B.U. L. REV. 677, 679 (2005) ("[T]he conventions determining what is a good or bad legal argument about the Constitution . . . change over time in response to changing social, political, and historical conditions.");
50. Mark Tushnet, Interdisciplinary Legal Scholarship: The Case of History-In-Law, 71 CHI.-KENT. L. REV. 909, 918, 925 (The typical use of history in law "acknowledges the contradictory data and explains them away," with little emphasis on "historical forces.").
51. Chin, supra note 1, at 1372.
52. See Frick v. Webb, 263 U.S. 326 (1923); Webb v. O'Brien, 263 U.S. 313 (1923); Porterfield v. Webb, 263 U.S. 225 (1923); Terrace v. Thompson, 263 U.S. 197 (1923).
53. See Chin, supra note 1, at 1383 & n.166.
54. Ironically, however, Terrace itself cites Yick Wo for the proposition that the Fourteenth Amendment applies to aliens. See 263 U.S. at 216.
55. Treaty of Commerce and Navigation, U.S.-Japan, Feb. 21, 1911, 37 Stat. 1504.
56. See id. art. XIV.
57. See id. art. I. The Alien Land Laws arguably violated these provisions by denying land ownership to Japanese while offering it to "native citizens" and aliens who could naturalize.
58. Id.
59. Terrace, 263 U.S. at 222.
60. Although the Court held that the language alone was sufficient to conclude that the Treaty did not apply, it also pointed to the Secretary of State's 1912 letter to Japanese officials, which makes the same textual argument as the Court and claims that a Japanese diplomat recognized that the various American states might have diverse laws about alien land ownership. See id. at 223 (citing Terrace v. Thompson, 274 F. 841, 845 (W.D. Wash. 1921)). Although the Secretary's interpretation deserves consideration, it is an after-the-fact interpretation by an interested party. The other party, Japan, evidently construed the Treaty otherwise. Furthermore, the relevance of the 1912 letter is questionable, as the Alien Land Laws challenged in the cases were not passed until 1920 and 1921. See Keith Aoki. No Right to Own?: The Early Twentieth-Century "Alien Land Laws" as a Prelude to Internment. 40 B.C. L. REV. 37, 55-59, 60 (1998).
61. See Jordan v. Tashiro, 278 U.S. 123 (1928).
62. See Aoki, supra note 58, at 45.
63. See id. at 53-54.
64. Id. at 62-63.
65. Id. at 47.
66. Terrace v. Thompson, 263 U.S. 197, 220-21 (1923) (quoting Terrace v. Thompson, 274 F. 841. 846 (W.D. Wash. 1921)).
67. See Plessy v. Ferguson, 163 U.S. 537 (1896).
68. David Bernstein has argued that substantive due process provided racially "neutral principles." David E. Bernstein, Lochner, Parity, and the Chinese Laundry Cases, 41 WM. & MARY L. REV. 211, 292-93 (1999). That argument is beyond the scope of this paper, but in any event, other laws and practices of the day were openly racist and limited the value of economic rights to nonwhites.
69. See Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).
70. Mari Matsuda, We Will Not Be Used, 1 ASIAN PAC. AM. L.J. 79, 80 (1993).
71. See Eric K. Yamamoto, Critical Race Praxis: Race Theory and Political Lawyering Practice in Post-Civil Rights America, 95 MICH. L. REV. 821, 821-23 (1997).
72. See Lisa C. Ikemoto, Traces of the Master Narrative in the Story of African American/Korean American Conflict: How We Constructed "Los Angeles," 66 S. CAL. L. REV. 1581, 1585-90 (1993). Ikemoto also notes that the divisive process also works in reverse: the "Americanness" of blacks is sometimes invoked to highlight the undesirable "foreignness" of Asians and other immigrants. Id.
73. See Chae Chan Ping v. United States, 130 U.S. 581 (1889).
74. Yamamoto, supra note 69, at 890-91.