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http://ssrn.com/abstract=1075563
 
 

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Unexplainable on Grounds of Race: Doubts about Yick Wo


Gabriel J. Chin


University of California, Davis - School of Law


University of Illinois Law Review, Vol. 2008, p. 1359, 2008
Arizona Legal Studies Discussion Paper No. 07-30

Abstract:     
Yick Wo v. Hopkins is simultaneously celebrated as a classic equal protection case, establishing the rule against discriminatory prosecution, and lamented as both the first and last case in which the Supreme Court invalidated 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 Yick Wo 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 anti-racist jurisprudence of the post-Brown era. Read in the context of the jurisprudence of its own time, it is completely consistent with Plessy v. Ferguson, and stands for only the mundane point that a valid treaty trumps inconsistent state law.

Number of Pages in PDF File: 53

Keywords: Constitutional law, Yick Wo v. Hopkins, discriminatory prosecution, race and criminal law, equal protection clause, selective prosecution, chinese

JEL Classification: K14, K11, K42, K4

working papers series


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Date posted: December 21, 2007 ; Last revised: November 16, 2008

Suggested Citation

Chin, Gabriel J., Unexplainable on Grounds of Race: Doubts about Yick Wo. University of Illinois Law Review, Vol. 2008, p. 1359, 2008; Arizona Legal Studies Discussion Paper No. 07-30. Available at SSRN: http://ssrn.com/abstract=1075563 or http://dx.doi.org/10.2139/ssrn.1075563

Contact Information

Gabriel Jackson Chin (Contact Author)
University of California, Davis - School of Law ( email )
Martin Luther King, Jr. Hall
Davis, CA 95616-5201
United States
520-401-6586 (Phone)
530-754-5311 (Fax)

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