Unexplainable on Grounds of Race: Doubts About Yick Wo

Yick Wo v. Hopkins is simultaneously celebrated as a classic equal protection case, establishing the rule against discriminatory prosecution, and lamented as the first and last case in which the Supreme Court inval-idated a prosecution as racially motivated. This essay explores why Yick Wo proved to be a dead end. It proposes that the traditional view of Yick Wo is mistaken: Yick Wo was about neither race discrimination nor prosecution. Yick Wo turned on the Court’s treatment of the conduct at issue, operating a laundry, as a constitutionally protected property right. Therefore, a forgotten but large body of cases from the Jim Crow era holds that Yick Wo is a Catch-22: Yick Wo applies when some other provision of law invalidates the statute but is categorically inapplicable to prosecutions for conduct the state has the power to criminalize. In addition, because the property interest at stake was constitutionally protected, Yick Wo’s race was irrelevant to the decision; a white person or corporation deprived of property would have had precisely the same claim. In fact, Yick Wo’s race was a barrier to, rather than a basis for, relief: he could raise a property claim only because he had a treaty right to operate a laundry on the basis of equality with others. When the treaty was inapplicable, the Supreme Court upheld race-based economic discrimination against Chinese and other Asians. Yick Wo is famous because it apparently foreshadows the antiracist jurisprudence of the post-Brown era. Read in the context of the jurisprudence of its own time, however, Yick Wo is completely consistent with Plessy v. Ferguson and stands primarily for the mundane point that a valid treaty trumps inconsistent state law.

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