13

The Curious Incident of the Chinese Laundry and Equal Protection

ON JANUARY 24, 1848, A CARPENTER NAMED JAMES Marshall discovered metallic flakes near the American Fork River in north-central California while supervising the construction of a sawmill for John Sutter, a Swiss-born businessman who wanted to create the beginnings of a new city inland from the Pacific Coast. The flakes were gold. Neither Marshall nor Sutter registered a claim, both for secrecy’s sake—Sutter feared his plans for the settlement would be upended—and because, at the time, California was owned by Mexico. Just one week later, however, the Treaty of Guadalupe Hidalgo transferred control of the Southwest, including the land around Sutter’s mill, to the United States.

Everyone who had been working at or near the site, at the base of the Sierra Nevada Mountains about 130 miles northeast of San Francisco, was aware of Marshall’s find, and couldn’t care less whether a new city was built or not. Most of the crew quit to prospect for gold, unconcerned that the bulk of the land belonged to the man they had supposedly been working for. Sutter tried to kick them out without making a fuss, and his former workmen did their best not to publicize their activities to avoid being overrun themselves. But gold is not a secret easily kept, and by May 1848, word began to leak out. It was not until the following year, however, that the full-blown Gold Rush began.¹

Upwards of 80,000 would-be millionaires descended on California. San Francisco’s population exploded, growing from about 800 people in 1848 to 25,000 just two years later. Ninety percent of those 80,000 prospectors came by way of the eastern United States, either overland or by steamship, but many others came from across the Pacific, almost all of them from China. Most arriving Chinese intended to stay at “Gold Mountain” only long enough to allow them to return home rich to a country whose economy was near collapse and in which famine was widespread. At first, the hardworking Chinese were, if not welcomed, at least accepted by the other miners. But as gold became scarcer and Chinese became more plentiful—there would be 24,000 within three years—a strong backlash developed.

In 1850, California instituted a prohibitive twenty-dollar-per-month tax on foreign miners. Although the tax was repealed the following year, it was replaced in 1852 by a four-dollar-per-month tax, which was still more money than a man barely able to feed himself while working sixteen-hour days could afford to pay. Most immigrant whites could avoid the levy simply by not broadcasting their origins, but Chinese miners did not have the same option. (Mexicans, another target group, were also forced to pay or abandon their claims.)

With the tax in place and violence against those who continued to work their claims becoming commonplace, Chinese miners reluctantly gave up the hunt for gold and entered more prosaic lines of work. Some hired themselves out as workers in mining camps, where they were paid next to nothing and subjected to constant verbal and physical abuse. Others became farm laborers, while still others settled in cities—mostly booming San Francisco—and sought to open their own businesses. Most occupations were closed off, but one obvious opportunity was in laundering. Most of the men who arrived in California to hunt for gold came alone. Mining was dirty, dusty work, but washing grimy, mud-caked clothes was considered a “woman’s job.” Some of the more successful single men shipped dirty clothes to Hong Kong and waited months for their return. For the rest, since local Spanish and Native American women charged too high a price, Chinese men filled the void. Within a few years, the Chinese came to dominate the laundry business in San Francisco.

Among the less entrepreneurial Chinese, railroad construction siphoned off large numbers of laborers in the 1860s, but that opportunity eventually came to an end. Still, with the West growing quickly, there was a constant need for cheap labor, and the Chinese could be worked hard and paid little. In 1868, China and the United States signed the Burlingame Treaty, the first agreement between the Qing Dynasty and a Western power that was considered to be “equal.”² China was granted most-favored-nation trade status, immigration and economic cooperation were encouraged, and, significantly, subjects of each nation—which included American missionaries—were guaranteed full protection of the law while living or working in the other.

But whites in the West quickly soured on the deal and became determined to halt what they saw as a deluge of pollution by an inferior race. While laborers were key targets—they were widely viewed as depressing wages for white workers—Chinese women, assumed to be prostitutes, also aroused particular antipathy.

Eventually, nativists put sufficient pressure on their congressional delegations that in 1875 Congress passed the Page Act, the first law in American history that restricted the entry of specific “undesirable” elements. Horace Page, a California Republican, had introduced the bill to “end the danger of cheap Chinese labor and immoral Chinese women.” It stipulated that “the immigration of any subject of China, Japan, or any Oriental country, to the United States” must be “free and voluntary,” nor could any immigrant from those countries have “entered into a contract or agreement for a term of service within the United States, for lewd and immoral purposes.” It was “the duty of the consul-general or consul of the United States residing at the port from which it is proposed to convey such subjects” to make the determination, which he was free to do according to whatever standards he chose. In case the American foreign officer was too lenient, an additional inspection would be held when the boat docked at a domestic port.³ Since it was difficult on the gangplank of a ship to determine what a person might eventually do for a living or what a woman’s morals were, most were turned back simply for being Chinese.

While the Page Act was enacted to stanch the flow of new immigrants, the California state legislators took aim at those already in the United States. They enacted a series of laws intended to deny Chinese immigrants, almost none of whom were citizens, either employment or housing. For example, one law, an 1870 San Francisco ordinance called “the Sanitary Act,” stipulated that all housing must have 500 cubic feet of air for each occupant. The law was enforced only in Chinatown, where immigrants, most of whom were working for impossibly low wages, lived in equally cramped conditions. Conviction meant either a fine or jail for both the building’s owner and the tenants. Since almost no one could afford the fine, which could run to as much as $500 for the landlord, droves of Chinese were sent to what soon became horribly overcrowded local jails.

But although few Chinese could speak English, they had nonetheless acquired a keen understanding of how to negotiate the American legal system. Each time California or San Francisco passed a discriminatory law, Chinese businessmen hired white lawyers to bring suit in either state or federal court. And they generally won. One of the cases, in 1879, involved a city ordinance that ordered all male prisoners to have their hair cut to one inch from their scalps. This was an extraordinary humiliation of Chinese prisoners, since the “queue,” the long braid worn down their backs, was required in their society as a sign of respect to the Qing emperor. And since failure to wear the queue meant death, any man with his hair shorn could not return to China. (That preventing an immigrant from returning home was an odd way to shrink the Chinese population did not seem to have occurred to the city fathers.) When a laborer named Ah Kow was jailed under the Sanitary Law and then had his hair shorn, his lawyers contested both his imprisonment and what had become known as the “Pigtail Law.”

When the statute was upheld in state court, the decision was appealed to federal court, where Justice Field was sitting on circuit. Field was hardly a friend of the Chinese. In a run for the California state senate in 1851, he had sought to reassure white residents. “I have always regarded the immigration of the Chinese in large numbers into our state as a serious evil,” he wrote, “and likely to cause great injury to the morals of our people as well as their industrial interests.”⁴ Those sentiments were not just for public consumption. As he observed to a friend three decades later, “You know I belong to the class who repudiate the doctrine that this country was made for the people of all races. On the contrary, I think it is for our race—the Caucasian race.”⁵

Nonetheless, in Ah Kow v. Nunan, Field voided the conviction and declared the California law unconstitutional. While such a decision was already highly unusual—to say nothing of being incendiary to the white population—Field’s reasoning was more so. Calling the law “spiteful and hateful,” Field wrote:

The equality of protection thus assured to every one whilst within the United States, from whatever country he may have come, or of whatever race or color he may be, implies not only that the courts of the country shall be open to him on the same terms as to all others for the security of his person or property, the prevention or redress of wrongs and the enforcement of contracts; but that no charges or burdens shall be laid upon him which are not equally borne by others, and that in the administration of criminal justice he shall suffer for his offenses no greater or different punishment.⁶

Never before had the Fourteenth Amendment guarantee of “equal protection of the law” been used to void a state or federal statute. Equally significant was Field’s assertion that the Sanitary Law was “special legislation imposing a degrading and cruel punishment upon a class of persons who are entitled, alike with all other persons within the jurisdiction of the United States, to the equal protection of the laws.” In other words, because the language of the amendment specifically said “any person” and not “any citizen,” its protections were not reserved for the native born.⁷

But Field’s opinion was pushing against a very strong tide. Three years later, in 1882, Congress passed and President Chester Arthur signed the Chinese Exclusion Act, which denied entry into the United States to Chinese laborers, the first immigration law passed in the United States that restricted immigration of a specific national or ethnic group. The Page Act had, in theory, only prohibited laborers brought to the United States against their will, although in practice application had been much broader. The Chinese Exclusion Act, which was also applied far more broadly than its wording, would, despite the fact that the Burlingame Treaty was still on the books, halt virtually all Chinese immigration for almost a century.⁸

As with the Page Act, local laws against the Chinese proceeded in parallel to national efforts. In 1880, the San Francisco Board of Supervisors passed an ordinance that required all laundries operating within the city limits not constructed of brick or stone to obtain a special operating license. This, they claimed, was because of the extreme fire hazard created by laundries housed in wooden buildings. At the time, there were 320 laundries in San Francisco, all but ten wood framed. Ninety percent of all the city’s buildings were, in fact, of wood construction.

While, like the Sanitary Law and similar ordinances, the laundry law was evenhanded on its face, three-quarters of the city’s laundries were Chinese-owned. After the law took effect, 280 license applications were submitted. Eighty were granted—all to white owners; 200 were denied—all but one for Chinese.⁹ Not one Chinese laundry owner was granted a license.

One of those denied was the proprietor of the Yick Wo laundry. The proprietor’s name is uncertain—it may have been Lee Yick—but he had apparently come to the United States in 1861 and had been operating his business for twenty-two years. Like most Chinese immigrants, he had never become a United States citizen. Although the Yick Wo laundry had passed inspections by both the fire wardens and the health department, the proprietor was ordered to close his business down. When he refused, Sheriff Peter Hopkins arrested him. Not bothering to certify the actual identity of the man he had brought to the station, Hopkins had the man booked as Yick Wo.

When “Yick Wo” refused to pay the mandated ten-dollar fine, he was sent to jail for ten days. Hopkins had arrested 150 other Chinese laundry owners who refused to close their shops, and almost all of them were sent to jail as well.

But the Chinese Laundrymen’s Guild, the Tung Hing Tong, had become a powerful force in the city. To contest the arrests, they hired Hall McAllister, the best lawyer in San Francisco—and the highest paid. McAllister was “said to have made more money out of his profession than any lawyer in America.”¹⁰

McAllister was born in Savannah, Georgia, in 1826, a son of that state’s leading lawyer. He went to Yale, graduating in 1846, but soon after he returned home to practice, tales of riches just waiting to be picked up off the ground proved too much to resist. In February 1849, Hall McAllister, his brother Ward, and a cousin, Samuel Ward, left Georgia and almost four months later, they reached San Francisco. But none of the three had come to California to practice law. Nor did they intend to pan for gold. Rather, they would make their fortunes from the miners, not from the mines. They had hauled a stock of dry goods across America and set up two tents in a vacant lot to ply a merchant’s trade. Instead of mounting some mundane sign on the tents, they decided to be whimsical. The father of the brothers, Matthew Hall McAllister, had given the trio his old tin shingle, so outside one of the tents was hung M. HALL MCALLISTER, ATTORNEY AT LAW.¹¹

They did a brisk business, their customers either amused or confused by the sign at the entrance. But one day, a group of sailors showed up and insisted on speaking with the lawyer. Hall McAllister was reluctant to move from a venture he was certain would make him rich to one he saw as a dead-end business, representing men with little money who often felt only a passing obligation to pay.

But the sailors persisted. Their captain, it seemed, had refused to pay them for the voyage from New York—he said they had signed on for a round trip and they would get paid when the ship returned to New York. The sailors insisted the captain had promised to pay them half in San Francisco and owed them $1,000. McAllister, motivated by caprice as much as anything else, took the case.

In court, the captain presented the contract signed by each member of the crew, and sure enough, it appeared that the seamen had agreed to forgo payment until the ship returned to New York. But McAllister noticed something odd when he held the pages up to the light. Some of the original writing seemed to have been carefully erased and different text inserted in its place. He pointed out this palimpsest to the judge and won the case.

The sailors paid him half, $500, and suddenly dry goods had lost their allure. In a boomtown like San Francisco, there were always a multitude of swindles, frauds, misappropriations of funds, and violations of contract to create a steady stream of clients more than willing to pay hefty fees to a wunderkind attorney—McAllister was still only twenty-three years old. He was soon buried in an avalanche of legal work, and in his first full year as an attorney, he reportedly earned $150,000.¹²

The next year, McAllister’s father realized that the gold in California was not just what could be dug out of the earth. He decided to join his two eldest sons and journeyed to California with other members of the clan, including another son, Cutler. They opened a law firm, McAllister & Sons, and did a thriving business. Three years later, President Franklin Pierce nominated Matthew Hall McAllister to be a federal circuit court judge. After he was confirmed, he regularly heard cases in which his son was one of the lawyers, which did nothing to hurt Hall McAllister’s record of victories at trial. The elder McAllister appointed Cutler as clerk of the court, and the family triumvirate was complete.¹³

That a Hall McAllister would accept a case from the Tung Hing Tong infuriated city officials—and many of its citizens—but there was little they could do about it. They filed a more-than-one-hundred-page brief—to McAllister’s thirteen—trying to overwhelm state court judges with reasons why the laundry law was fair. And indeed, the California Supreme Court sided with the city. Soon afterward, a parallel case, re Wo Lee, was taken directly to federal court. In rendering his decision, Judge Lorenzo Sawyer lacerated the city, accusing the board of supervisors of selectively using a vaguely written law to “drive the Chinese laundrymen out of business.” He wrote further, citing, as had Field, the Fourteenth Amendment, “That it [means] prohibition to the Chinese, it seems to us must be apparent to every citizen of San Francisco who has been here long enough to be familiar with the cause of an active and aggressive branch of public opinion and of public notorious events. Can a court be blind to what must be necessarily known to every intelligent person in the State?”¹⁴ But Sawyer could go no further. He reluctantly ruled that the federal district court lacked the authority to overturn the California Supreme Court’s ruling in Yick Wo. He did, however, urge that the case be appealed to the United States Supreme Court, which he hoped would grant a speedy review.

Which it promptly did. In January 1886, the two cases were combined and heard in Washington as Yick Wo v. Hopkins. Yick Wo was not the first case that the Court had heard regarding discriminatory laws against Chinese laundrymen in California, and while the previous results would not have been encouraging to most attorneys, Hall McAllister did not need more than the narrowest of openings.

One year earlier, in January 1885, the Court had delivered an opinion in Barbier v. Connolly, a case in which, using Stephen Field’s Ah Kow opinion as precedent, the equal protection clause had been used to challenge a San Francisco ordinance prohibiting laundries from operating between ten o’clock at night and six in the morning. The law had been enacted, according to the board of supervisors, because of night washing, drying, and especially ironing, which was said to be a fire hazard and “endangered the public health and the public safety, prejudiced the wellbeing and comfort of the community, and depreciated the value of property in their neighborhood.” Since Chinese launderers were the only ones who worked through the night, they were the only ones arrested and prosecuted for violating the ordinance. They claimed that the ordinance was enacted solely to target them for prosecution, but the Court, in a unanimous opinion authored by Field himself, disagreed.

Field concluded,

The 14th Amendment does not interfere with the police power of a state to prescribe regulations to promote the health, safety, peace, morals, education, good order, and general welfare of its people . . . The fact that a special burden is placed upon a certain class does not render it class legislation or deny the equal protection of the law, as special burdens are often necessary for the general welfare . . . What regulations are necessary in the exercise of the police power, and to what business, trade, or occupation they shall apply, is a question for the legislative branch of the government to determine, and every presumption is to be indulged in favor of the validity of such a statute.¹⁵

The same could have been said about the Sanitary Law, of course, short hair being much less likely to be a conduit to disease than long hair, particularly under prison conditions, but Field never explained why this case differed from Ah Kow. Still, his opinion in Barbier is much more consistent with his overall view.

Two months later, in Soon Hing v. Crowley, the Court once again unanimously ruled, again through Justice Field, that the night work prohibition was a legitimate exercise of police power, but further that the Court was in no position to rule on the motives of those who enacted the law, even in the face of public statements that it had been directed against the Chinese.

Noting that “the principal objection of the petitioner to the ordinance in question is founded upon the supposed hostile motives of the supervisors in passing it,” Field wrote:

There is nothing, however, in the language of the ordinance or in the record of its enactment which in any respect tends to sustain this allegation. And the rule is general, with reference to the enactments of all legislative bodies, that the courts cannot inquire into the motives of the legislators in passing them except as they may be disclosed on the face of the acts or inferable from their operation, considered with reference to the condition of the country and existing legislation. The motives of the legislators, considered as to the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactments. 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 preclude 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.¹⁶

It was in that final sentence that McAllister perceived his opportunity. Although bringing an action that charged selective enforcement of the law was hardly new, using equal protection as the lever had no precedent in Supreme Court jurisprudence. In Ah Kow, Field had ruled against a statute that had been enacted with obvious prejudice, “spiteful and hateful,” not one that had merely been enforced as such. But the selectivity in granting permits left little to the imagination—“It’s not rocket science,” Justice Anthony Kennedy observed later, “to figure out that something was drastically wrong.”

So McAllister and his co-counsel based their appeal on the claim that Yick Wo and the other Chinese launderers had been denied Fourteenth Amendment guarantees, both of “due process” and, again using Justice Field’s Ah Kow opinion as precedent, “equal protection of the laws.”

His brief read,

Your petitioner and more than one hundred and fifty of his countrymen have been arrested upon the charge of carrying on business without having such special consent, while those who are not subjects of China, and who are conducting eighty odd laundries under similar conditions, are left unmolested and free to enjoy the enhanced trade and profits arising from this hurtful and unfair discrimination. The business of your petitioner, and of those of his countrymen similarly situated, is greatly impaired, and in many cases practically ruined, by this system of oppression to one kind of men and favoritism to all others.¹⁷

The Court rendered its verdict on May 10, 1886. As in Barbier and Soon Hing, the decision was unanimous, but this time for the plaintiff rather than the defendant. Justice Stanley Matthews wrote the opinion. To start, Matthews categorically denied precedent for the previous cases, which “involved simply a prohibition to carry on the washing and ironing of clothes in public laundries and washhouses . . . from ten o’clock at night until six o’clock in the morning of the following day.” Those, he said, involved an ordinance that applied to all launderers equally—even though only the Chinese worked through the night—and fell under the government’s legitimate right to legislate for the safety and well-being of its citizenry.

This case, Matthews wrote, was different. The ordinance in question gave arbitrary power to the supervisors to decide who could remain in business and who could not, all without applying known standards or giving explanation. Although Yick Wo and his co-petitioners “complied with every requisite deemed by the law or by the public officers charged with its administration necessary for the protection of neighboring property from fire or as a precaution against injury to the public health,” they were ordered to close their businesses.

No reason whatever, except the will of the supervisors, is assigned why they should not be permitted to carry on, in the accustomed manner, their harmless and useful occupation, on which they depend for a livelihood. And while this consent of the supervisors is withheld from them and from two hundred others who have also petitioned, all of whom happen to be Chinese subjects, eighty others, not Chinese subjects, are permitted to carry on the same business under similar conditions. The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which, in the eye of the law, is not justified.

As such, the California law was applied “with an evil eye and an unequal hand.” That Yick Wo and his co-petitioners were not citizens did not matter. “The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: ‘Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’” The judgments of the lower courts were therefore reversed and Yick Wo, Wo Lee, and the other launderers were set free, where they promptly sank into obscurity.¹⁸ For Hall McAllister, however, the victory in Washington was the capstone to a brilliant career and cemented his place as one of San Francisco’s most prominent citizens.¹⁹

Yick Wo v. Hopkins has long been considered one of the nation’s most important civil rights rulings, cited more than 150 times in subsequent Supreme Court opinions in cases ranging from apportionment to jury selection to loitering. But occasionally questions have also been raised as to why justices who had not seen fit to apply Fourteenth Amendment guarantees to African Americans in a string of civil and voting rights cases suddenly became sympathetic to Chinese laundrymen. The answer may be found in another unanimous decision the Court handed down the same day.

Santa Clara County v. Southern Pacific Railroad Company was a relatively banal tax case involving a new California constitution that altered the way in which property was valued. One provision denied to railroads certain deductions that were available to individuals. When the railroads refused to pay their vastly increased tax bills, state and local governments brought suit. What set the case apart were the grounds on which the railroads justified their actions.

Their brief attested,

That the provisions of the Constitution and laws of California in respect to the assessment for taxation of the property of railway corporations operating railroads in more than one county, are in violation of the Fourteenth Amendment of the Constitution insofar as they require the assessment of their property at its full money value without making deduction, as in the case of railroads operated in one county and of other corporations and of natural persons, for the value of the mortgages covering the property assessed, thus imposing upon the defendant unequal burdens, and to that extent denying to it the equal protection of the laws.²⁰

Although Justice Harlan, writing for the Court, agreed with the railroad that California had overstepped its taxing power, he did not address the Fourteenth Amendment issues in his opinion. But in the case syllabus, which appeared in the court record above Harlan’s opinion, the reporter included a statement made by Chief Justice Waite regarding that issue.

One of the points made and discussed at length in the brief of counsel for defendants in error was that “corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.” Before argument, Mr. Chief Justice Waite said: The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.²¹

While there is no direct evidence as to whether Yick Wo was decided in the laundrymen’s favor because the Court viewed them as constitutionally wronged individuals, or because the justices were protecting constitutionally wronged businesses, it would not be unreasonable to assume that the second explanation is the more likely. Regardless of what motivated the unanimous Court to rule as it did, unfair application of a facially fair law seemed to provide a tool that attorneys for African American plaintiffs could use to press for voting rights in a Redeemed South.²²