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•Œin the Future of Any Third Powerâ•Š Bascara FINAL.docx (Do Not Delete) 9/25/2014 9:33 AM “In the future to any third power”: “Most favored nations,” Personhood, and an Emergent World Order in Yick Wo v. Hopkins Victor Bascara† Through a discourse analysis of the 1886 decision of Yick Wo v. Hopkins, this Essay critically examines the decision’s capacity to provide terms for reconciling a coming global order with the political protections of the Constitution, especially the protections of the Fourteenth Amendment. That reconciliation involves the protected rights of Chinese launderers in San Francisco. The key terms used in the decision are “person” and “most favored nation,” and the Supreme Court crucially applies these concepts to fit “aliens and subjects of the emperor of China” as well as “China,” respectively. The decision represents a successful test of the equal protection provisions of the Fourteenth Amendment; Yick Wo expanded the terms of civil rights protections to encompass not only codified discrimination but also practiced discrimination that occurred even in the absence of explicit racial laws. This Essay argues that the decision also makes visible a convergence between claims, on the one hand, for the equal protection of the minority groups who have suffered discrimination and, on the other hand, for an assertion of equality between nations who had signed a treaty to ensure that equal treatment. The Angell Treaty between China and the United States, dated November 17, 1880, granted each “most favored nation” status. The right of the petitioners to operate laundries was therefore protected by that compact, and the majority decision explicitly invoked that agreement as well as the Fourteenth Amendment. The equal protection of persons, as such, under the Fourteenth Amendment and of the terms of equality concomitant with “most favored nation” status, come to figure the rationale of the current world order of neoliberalism under globalization. Just as the concept of the equally protected person has been the championed entity of enlightenment liberalism, the concept of the most favored nation is the protected entity of neoliberalism and global trade. By rereading the Yick Wo decision within the genealogy of † Associate Professor, Department of Asian American Studies, University of California– Los Angeles. Thanks to David Hernandez, Randall Williams, and especially Keith Camacho for comments on a much earlier version of this Essay. And many thanks to the perceptive, thoughtful, and patient, editors of the Asian American Law Journal. 177 Bascara FINAL.docx (Do Not Delete) 9/25/2014 9:33 AM 178 ASIAN AMERICAN LAW JOURNAL [Volume 21:177 globalization, we see how a prominent exercise of “official anti-racism”1 for protecting persons under the Fourteenth Amendment aligns with a coming world order of the globally pervasive “normal trade relations”2 of our times. INTRODUCTION: REGRETTABLE ACTS ....................................................... 178 I. CONVERGENT ARGUMENTS OF YICK WO V. HOPKINS ........................ 181 II. EQUALITY AND THE IDEA OF THE “MOST FAVORED NATION” .......... 186 III. YICK WO AND THE AGE OF EMPIRE ................................................... 194 CONCLUSION: YICK WO AS AN EXERCISE OF OFFICIAL ANTI-RACISM ..... 202 CODA ........................................................................................................ 206 INTRODUCTION: REGRETTABLE ACTS Coming just four years after the passage of the 1882 Chinese Exclusion Act, the Yick Wo v. Hopkins decision ruled in favor of the Chinese immigrant laundry workers and against the San Francisco Board of Supervisors. The decision had the potential of being the beginning of improved legal conditions for the Chinese in America. Or, it might have been a progressive anomaly in a long record of political and legislative acts that otherwise “adversely affected people of Chinese origin in the United States because of their ethnicity,” to borrow the phrasing of a June 18, 2012 U.S. House of Representatives resolution.3 As this House resolution demonstrates, history has provided abundant evidence to convince the House that Yick Wo was more likely an anomaly. That is, the House unanimously passed House Resolution 683, “[e]xpressing the regret of the House of Representatives for the passage of laws that adversely affected the Chinese in the United States, including the Chinese Exclusion Act,”4 a measure made possible through the determined work of Congresswoman Judy Chu, chair of the Congressional Asian Pacific American Caucus (CAPAC). The 1882 Chinese Exclusion Act was a high-water mark for exclusionary legislation that effectively closed off immigration by Chinese laborers to the United States. It was initially set for a renewable term of ten years and was renewed at the close of its first decade. The 1882 Act and its renewal in 1892 serve as compelling evidence of pervasive anti-Chinese sentiment in United States law and culture. Anti-Chinese sentiment was widespread in that era,5 and thanks to Representative Chu and CAPAC’s 1. This term comes from JODI MELAMED, REPRESENT AND DESTROY: RATIONALIZING VIOLENCE IN THE NEW RACIAL CAPITALISM, at xvii, xvi-xviii, 1–4 (2011). 2. “Normal trade relations” is the term that has come to replace the synonymous “most favored nation.” 3. H. Res. 683 (2012), available at http://www.govtrack.us/congress/bills/112/hres683/text. 4. H. Res. 683 (2012), available at http://www.govtrack.us/congress/bills/112/hres683/text. 5. The language of Yick Wo v. Hopkins indicates this anti-Chinese sentiment with its recognition of “notorious public and municipal history of the times, indicate a purpose to drive out the Chinese Bascara FINAL.docx (Do Not Delete) 9/25/2014 9:33 AM 2014] “IN THE FUTURE TO ANY THIRD POWER” 179 work, that part of history is now better known in our era.6 What then could explain how the rights of aliens, who were otherwise ineligible for citizenship and subjected to “adverse” legislation, were defended by the highest court in the land in Yick Wo? This Essay analyzes the argument, logic, and rhetoric of Yick Wo to consider the significance of a moment when the Supreme Court elaborated on the meaning of equality before the law, even when those before the law were aliens ineligible for citizenship. Despite their lack of citizenship, the petitioners were nevertheless considered “persons” under both the Fourteenth Amendment and the Angell Treaty between the United States and China. In basing its argument on both the Fourteenth Amendment’s equal protection provisions and the Angell Treaty’s invocation of the “most favored nation” clause, Yick Wo represents an early, explicit convergence between notions of geopolitical equality among nations and of the individual equality among persons, irrespective of national or imperial affiliation. In other words, the decision presents a compelling articulation of the symbiotic relationship between notions of national sovereignty in an international order (as articulated by the Angell Treaty) and notions of individual rights (as articulated by the Fourteenth Amendment). This symbiosis signals a prescient formulation of what we would now recognize as a commitment to tenets of the set of ideas, values, and practices that have come to be called neoliberalism, the set of principles that involve such developments as financial and market liberalization, deregulation, and the management of world order through multilateralism and free trade agreements.7 While this relationship between national and individual sovereignty may be symbiotic, it is not necessarily symmetrical. We could also assess whether the decision may be understood as primarily based in one argument over the other: we can consider the varying degrees to which national sovereignty served as the basis for claiming protected personhood or whether the concept of personhood provided the terms for respecting national sovereignty. Indeed, as I will analyze below, the argumentation of the decision itself provides abundant reason to reach the above conclusion of a symbiotic relationship; the bulk of the decision focuses on whether the San Francisco Board of Supervisors violated the civil rights of the defendants guaranteed by the Fourteenth Amendment rather than those Angell Treaty laundrymen, and not merely to regulate the business for the public safety.” And they even pose the rhetorical question, “Can a court be so blind to what must be necessarily known to every intelligent person in the state?” Yick Wo v. Hopkins, 118 U.S. 356, 363 (1886). 6. This critical insight is a foundational premise of the field of Asian American Studies. See Mike Murase, Ethnic Studies: Higher Education for Asian Americans, in EMMA GEE ET AL., COUNTERPOINT: PERSPECTIVES ON ASIAN AMERICA 202-223 (1976); see also RONALD TAKAKI, STRANGERS FROM A DIFFERENT SHORE: A HISTORY OF ASIAN AMERICANS 3–18 (1989). 7. This definition of neoliberalism is adapted from MELAMED, supra note 1. Bascara FINAL.docx (Do Not Delete) 9/25/2014 9:33 AM 180 ASIAN AMERICAN LAW JOURNAL [Volume 21:177 provisions that resonated with the protections of individual rights protected by the Fourteenth Amendment.8 This Essay suggests that the Yick Wo decision demonstrates how the convergence between claims for, on one hand, the equal protection of minority groups who have suffered discrimination and, on the other, an assertion of equality between nations who had signed a treaty to ensure that equal treatment, is an early example of the defense of neoliberal globalization. Making such a claim of geopolitical
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