Working Paper No. 08-55:
Revisiting Yick Wo v. Hopkins

Author(s):

David Bernstein

Date Posted: September 2008

Availability:
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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.