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 globalization, we see how a prominent exercise of “official anti-racism” for protecting persons under the Fourteenth Amendment aligns with a coming world order of the globally pervasive “normal trade relations” of our times.
“In the future of any third power”: “Most favored nations,” Personhood, and an Emergent World Order in Yick Wo v. Hopkins,
21 Asian Am. L.J. 177