Revisiting Yick Wo v. Hopkins

12 Pages Posted: 4 Sep 2008 Last revised: 14 Dec 2008

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School, Faculty

Abstract

This essay is a comment on Gabriel J. Chin's article, "Unexplainable on Grounds of Race: Doubts About Yick Wo". I conclude that Professor Chin's revisionism is a useful corrective to the whiggish view that interprets Yick Wo as a surprisingly modern civil rights decision in an era of rampant hostility to racial minorities. But Professor Chin's revisionism goes too far, in that he downplays or ignores the elements of the Yick Wo opinion that, however haltingly or modestly, advanced equality under the Constitution: the Court's holding that resident aliens, including Chinese resident aliens, were entitled to the full protections of the Fourteenth Amendment; the Court's unwillingness to countenance racial hostility as a valid police power justification for discriminatory economic legislation; and the Court's willingness, as early as 1912, to interpret Yick Wo as prohibiting legislation intending to discriminate against ethnic minorities.

Keywords: civil rights, constitutional doctrine, due process, equal protection, fundamental rights, Jack Chin, jurisprudence, Lochner, racial classification, racial hostility, special legislation, state interference, Supreme Court, treaty case

JEL Classification: D63

Suggested Citation

Bernstein, David Eliot, Revisiting Yick Wo v. Hopkins. University of Illinois Law Review, Forthcoming; George Mason Law & Economics Research Paper No. 08-55. Available at SSRN: https://ssrn.com/abstract=1262930

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8089 (Phone)
703-993-8202 (Fax)

HOME PAGE: http://mason.gmu.edu/~dbernste

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