Yick Wo v. Hopkins

Their motives, considered as the moral inducements for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile. And in the present case, even if the motives of the supervisors were as alleged, the ordinance would not be thereby changed from a legitimate police regulation, unless in its enforcement it is made to operate only against the class mentioned; and of this there is no pretense.

 -- SOON HING v. CROWLEY (1885)

This was a unanimous opinion written by Justice Field, who was the most suspicious of property regulations, only a year before the subject of this week's episode.  This case is of some importance both as a moment in time [the win was something of a positive in a sea of inequity] and for various principles that later had more bite, but one that many probably knows less about than most of the others in the two series. The two guests, including an Asian woman professor and Josh Blackman as the conservative leaning representative, provided a good discussion.

Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application if, within the sphere of its operation, it affects alike all persons similarly situated, is not within the amendment.

The Supreme Court unanimously held for Lee Yick ("Yick Wo" was the name of the business) and its language provides various interesting sentiments with potential broad reach if desired.  A basic problem is that there is not a neutral rule that is applied to all. The policy in place gives supervisors general power to allow or disallow use to wooden buildings, which invites and in practice was found to involve discriminatory treatment.  The Fourteenth Amendment protects "persons" against that, which includes aliens, especially Chinese ones protected under treaty.

Though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will under certain conditions, nevertheless it is regarded as a fundamental political right, because preservative of all rights.

The opinion, basically the one thing we remember Justice Matthews for (he did write Hurtado v. California, an important opinion regarding the Due Process Clause), reminds us that there are limits to government, "fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions." The quoted passage later was significant in voting rights cases though even this one cited a state case that struck down a regulation deemed overly restrictive of voting rights.  The opinion did not do so, but the fact aliens (in fact those by federal law at one point not able to become citizens) are involved without recourse to voting might provide a greater grounds for court action.  See, the famous "Footnote Four."

The "Lochner Era" was not quite upon us but there was already starting to be a basic flaw -- regulations had to be "reasonable." This case was a well chosen one to show that this had to have at least some bite. The petitioners and two hundred others (Chinese subjects) were denied licenses while white owned laundries (eighty) were not.  Thus, even though the letter of the law was not discriminatory, it was applied with an "evil eye and an unequal hand."  The principle holds in other cases too including (to quote one of the guest's work) those treated like "alien citizens," that is, American citizens denied equal protection. 

It was suggested that this was really a property rights' case though we saw in the beginning that property regulations were given a broad breadth. Discrimination of Asians -- particularly immigration laws, this era one where the power was more and more found in the federal government -- was also generally upheld though there were exceptions. Wong Kim Ark protected birthright citizenship, even if the parents could not be naturalized under the laws in place.  A California case also at the very least provided a right to an education though soon it was of the segregated kind.

Such cases suggest that even if an era deemed today to have not honored personal rights provided certain limits. The Fourteenth Amendment still had some teeth.  Plus, the basic principles protected, that recognition of a certain floor, provided a germ for more. This case was specifically a race case but the ban on arbitrary class legislation was set forth more generally. The arbitrariness here was rather obvious but again the principle could hold for somewhat closer cases.  For instance, homosexuals can gain protection against open-ended power to regulate morals that in practice is done in an arbitrary way against certain groups. 

And, the importance of voting rights holds true, even if some "right to vote" is not expressly found in the federal Constitution. Thus, e.g., when being concerned with "liberty," limits on voting in particular would be of fundamental importance since it is necessary to protect rights in general. Nonetheless, there is some floor for "persons" even without the vote.