Tuesday, May 26, 2020


Article Index


The Chinese cases pose a continuing affront to the promise of equal protection that the Court has enunciated in many modern cases, particularly in affirmative action cases. We cannot forget them in a time when the Court seems reluctant to discern any legislative purpose but a benign one, unless the government is dabbling in religion or dares to put a racial classification on the face of a statute. We cannot certainly forget them in a time when the Court seems reluctant to assume that racial and ethnic minorities are especially at risk in a majority-rule system roiled by economic and social anxiety. There is a glaring contrast between the Court's persistent and aggressive role in supporting the civil rights movement of the early 1960s and its painful attempts to ignore the hostility leveled against the Chinese by local, state, and federal governments in the late nineteenth and early twentieth centuries.

The Chinese cases should be a reminder to the Court of what will happen if it validates the fear-producing legislation aimed at the other, especially the immigrant. They should make the Court think carefully about the social and political backlash if it fails to conscientiously and persistently assume its role in the constitutional scheme as a protector of minority interests. It is a small victory that some federal judges, despite racist biases operating in their own private lives, believed that the honor of the law and the nation's treaty promises outweighed contemporary views about the claimed social inferiority of the Chinese. It is a perhaps small victory that Yick Wo is remembered as the constitutional promise we make to minorities. But it is a significant defeat that we do not all remember the tragic circumstances that brought Yick Wo to the U.S. Supreme Court.



. Professor of Law, Hamline University School of Law.