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Marie A. Failinger

Reprinted with Permission Requested:  Marie A. Failinger, Yick Wo at 125: Four Simple Lessons for the Contemporary Supreme Court, 17 Michigan Journal of Race and Law 217 (Spring 2012) (322 Footnotes Omitted)


Yick Wo v. Hopkins, a staple of every Constitutional Law course, was 125 years old this past year. In a perhaps fitting commemorative, in 2010 the City of San Francisco, where Yick Wo was arrested and imprisoned, appointed its first Chinese American mayor, Ed Lee. This event was greeted by the Asian Law Caucus with the statement, This is an historic moment for our great City. It signals a new era in San Francisco government and also for the city's residents, over thirty percent of whom are Asian In a classic story of backroom politics, Lee was chosen by the San Francisco board of supervisors to complete the mayoral term of new California Lieutenant Governor Gavin Newsom. The selection of a Chinese American mayor for San Francisco is particularly poignant in light of the California legislature's 2009 resolution designating December 17th, the repeal date of the Chinese Exclusion Acts, as a day to remember Yick Wo and recognize the contribution of Chinese and other immigrants to the state of California.

Yick Wo has continued to spark academic debate, most recently incited by Gabriel Chin, who questions whether Yick Wo is really a property and treaty case rather than a race case; but the lessons of Yick Wo for constitutional adjudication reverberate beyond this debate. There are at least four fairly simple lessons the Justices can re-learn from the history behind Yick Wo. Constitutional scholars have been debating them for decades in works too numerous to mention. However, the saga of Yick Wo and the state and federal cases involving Chinese immigrants and citizens in the late 19th century (the Chinese cases) remind us of important baseline lessons for the Court's treatment of seminal social justice issues that come before the Court. These lessons are:

1. The Court should never lend its justification to the evil of class discrimination, even if it must refuse to decide a case as a consequence.

2. If the Court is going to strike at legal injustice, persistence is an important virtue. An isolated victory for civil rights, such as Yick Wo, will not make much of a difference for minority groups who are scapegoated or pursued by angry or fearful majorities when it is not followed up by similar rulings. In making such decisions, historical context is critical for Supreme Court opinions and should not be treated as irrelevant or tainted evidence in these cases.

3. The Court needs to become serious in grappling with the problem of legislative purpose in equal protection cases. While the Court has frequently acknowledged that legislative motivation is rarely pure, it has failed to set clear and realistic standards for identifying and proving invidious purpose.

4. At their core, many civil rights disputes are property disputes: they embody the litigants' understanding about who is entitled to the goods or advantages at stake. Yick Wo and the Chinese cases should remind the Court that if it simply gives in to majority assumptions about who owns the social, moral, or material resources of our country, its rulings will inevitably result in serious social harm to minority groups.