Lochner, Parity, and the Chinese Laundry Cases

William and Mary Law Law Review, Vol. 41, p. 211, 1999

84 Pages Posted: 27 Jan 1999 Last revised: 16 Aug 2008

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School, Faculty

Multiple version iconThere are 2 versions of this paper

Date Written: January 1, 1999

Abstract

This article discusses hostile regulation of Chinese laundries in the American West from the 1860s to the early twentieth century. Anti-Chinese laundry laws generally took one of four forms: licensing legislation, maximum hours laws, zoning ordinances, and taxation. These laws were almost always facially neutral.

The laundrymen challenged dozens of laundry ordinances in court. State courts faced with legal challenges by Chinese laundrymen to laundry regulations generally upheld the laws on police power grounds, but federal courts usually invalidated them. Some of the latter opinions preceded the infamous Lochner case by decades, but anticipated Lochner's reasoning and rhetoric.

Traditional legal scholarship has criticized Lochnerian jurisprudence on three grounds: (1) judicial protection of economic liberties during the Lochner era was based on the reactionary political views of the judges involved; (2) courts invalidated progressive legislation meant to rein in corporate power and ameliorate the plight of the poor and vulnerable; and, (3) Lochnerism helped the wealthy and powerful at the expense of the rest of society, especially the poor and members of minority groups.

The history of the anti-Chinese laundry laws contradicts the received wisdom. First, pro-Chinese laundry decisions fail to reveal economic class bias, but do show the courts' commitment to natural rights/free labor theory and opposition to "class legislation." Second, the history discussed in this paper provides evidence that much regulatory legislation was neither wise nor humane, but anti-competitive and discriminatory. And, third, Lochnerism protected the vulnerable and disenfranchised Chinese from hostile regulations.

JEL Classification: K4

Suggested Citation

Bernstein, David Eliot, Lochner, Parity, and the Chinese Laundry Cases (January 1, 1999). William and Mary Law Law Review, Vol. 41, p. 211, 1999. Available at SSRN: https://ssrn.com/abstract=146952 or http://dx.doi.org/10.2139/ssrn.146952

David Eliot Bernstein (Contact Author)

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

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

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