Lochner, parity, and the Chinese laundry.

• Author: Bernstein, David E.
• Position: Fidelity, Economic Liberty, and 1937

From the 1860s to the early twentieth century, Chinese laundrymen throughout the American West suffered from violence, boycotts, and hostile regulation of their occupation by local governments. The vast majority of Chinese laundrymen were hot permitted to vote because they were aliens ineligible for citizenship. The laundrymen therefore could not effectively defend themselves against hostile legislation in the political arena. They did, however, challenge dozens of laundry ordinances in court. This Article reviews the cases brought by the laundrymen and examines some of the lessons the cases teach.

Part I of this Article discusses the historical background of the legal battles over Chinese laundries. Anti-Chinese laundry legislation arose out of a broader, popular anti-Chinese movement in the American West. As the Chinese became increasingly prominent in the laundry industry, anti-Chinese forces inevitably targeted Chinese laundries.

Part II discusses anti-Chinese laundry legislation promulgated in California, Montana, Oregon, and elsewhere in the West. Part II also examines the legal challenges brought by the Chinese to such legislation. Anti-Chinese laundry laws generally took one of four forms: licensing legislation, maximum hours laws, zoning ordinances, and taxation. These laws almost never discriminated against the Chinese explicitly. Nevertheless, such laws were passed in order to shut down Chinese laundries, or at least to give white competitors an advantage over Chinese laundrymen.

State courts faced with challenges to laundry regulations brought by Chinese laundrymen generally upheld the laws. Federal courts, however, usually invalidated them. The courts that ruled against the Chinese found that the states' police power had a broad scope. The courts that ruled in favor of the laundrymen, meanwhile, typically held that the measures in question were not within the scope of the police power and that the Fourteenth Amendment protected the right to earn a livelihood free from unreasonable government interference. Some of the latter opinions preceded the infamous Lochner v. New York(1) case by decades, but anticipated Lochner's reasoning and rhetoric.

Professor Burt Neuborne's controversial article, The Myth of Parity, argues that federal courts are more likely to protect federal constitutional rights from hostile local majoritarian sentiment than are state courts.(2) Part III of this Article shows that the history of the anti-Chinese laundry laws provides evidence consistent with Neuborne's thesis.

Part IV of this Article argues that the history of the anti-Chinese laundry laws lends support to revisionist accounts of the origins and effects of Lochnerian jurisprudence.(3) Traditionally, constitutional scholars and historians have argued that by protecting economic rights from "progressive" legislation, post-Reconstruction courts protected the rich and powerful at the expense of the poor and helpless.(4) Moreover, this effect was purportedly intentional. A recent review essay explains that "[p]rogressive historians and New Deal constitutionalists have portrayed the jurisprudence of economic regulation from Reconstruction to 1937 as if it were designed to do little more than meet the needs of the Carnegies and Morgans at the expense of the people."(5) In particular, decisions invalidating labor laws on constitutional grounds, including the Lochner decision itself, have traditionally been seen as irredeemably reactionary. To the extent that Lochnerian judges believed that invalidation of pro-union and other progressive legislation protected the public from special interest legislation, this is seen as evidence that the legal elite was blind to economic and social realities that necessitated government intervention to ensure that labor markets functioned properly and to redress inequalities of bargaining power.(6)

The traditional view, as expressed above, is based on the implicit assumption that market outcomes were unfair to all but wealthy and corporate interests, who benefitted at the expense of the rest of society, while government regulation benefitted the public at large, especially "workers." Given consistently rising standards of living for workers during the heyday of American capitalism, when government support for labor unions was minimal,(7) the roots of this belief are obscure. Moreover, as elementary public choice economics suggests, because the wealthy as a class faced no fundamental disadvantages in the political market, there is no a priori reason to believe that economic regulations worked systematically to their disadvantage, nor has such disadvantage been demonstrated empirically.(8)

Indeed, public choice suggests that politicians often supply legislation to meet the demands of important voter constituencies, rather than to serve the interests of a public at large.(9) To put it another way, legislation tends to benefit those with political power at the expense of those who lack it. Several revisionist scholars have shown that the public at large--which faces severe coordination and information problems in opposing "class legislation" benefitting powerful interest groups--gained from the invalidation by Lochnerian courts of legislation that assisted special interests at the public's expense.(10)

Meanwhile, this author, along with a few other revisionist scholars, have started to document the negative effects of facially neutral regulatory legislation on racial minorities, particularly African American. From the 1890s on, African Americans in the South faced a fundamental obstacle to success in the political process: they were largely disenfranchised.

Legal scholars have traditionally paid little attention to how regulatory legislation impacted racial minorities, perhaps because they assume that discriminatory social norms can develop and be sustained in a free market economy, even in the absence of reinforcing state action.(11) Yet modern political economy, particularly public choice theory, challenges the wisdom of downplaying the role of state regulation, including facially neutral regulations, in enforcing discriminatory norms.(12)

In a series of articles, this author has investigated negative effects of facially neutral labor and zoning regulations on African American welfare.(13) Consistent with public choice intuitions, these laws at best failed to take the interests of African Americans into account, and at worst were intentionally used to exclude them from relevant markets. Lochnerian decisions invalidating these regulations had positive effects on African American welfare, while decisions deferring to the government's regulatory power were disastrous for African Americans.(14)

Like African Americans in the South, Chinese residents of the United States were unable to vote. Facially neutral regulation that affected the Chinese therefore provide another opportunity to test the intuition that regulatory legislation, even purportedly progressive legislation, often served to harm politically vulnerable groups, either intentionally, or because the interests of the disenfranchised groups were not taken into account in the political process. Concomitantly, one can use the history of the laundry laws to test the thesis that Lochnerian jurisprudence invalidating regulations that interfered with liberty of contract helped such groups.

As discussed in detail below, this Article documents how categories of legislation traditionally seen as "progressive," including maximum hours, zoning, and licensing laws, sometimes served as subterfuges for intentionally discriminatory policy. Meanwhile, courts that chose to incorporate Lochnerian reasoning into their Fourteenth Amendment jurisprudence protected Chinese laundrymen from legislation that intentionally discriminated against them, even when the discrimination was neither obvious nor proven at trial, and also protected them from legislation that was not intentionally discriminatory, but had severe and disproportionate negative consequences for the laundrymen. Lochnerism, then, rather than being irrelevant or even hostile to the concerns of politically powerless Chinese laundrymen, as the traditional view would suggest, was crucial to their protection.

1. CHINESE LAUNDRIES: THE HISTORICAL BACKGROUND

   Chinese immigrants began to establish laundries in San Francisco around 1848, at the start of the Gold Rush.(15) As in other Western boom towns, the population of San Francisco was disproportionately male.(16) Laundering, however, was considered women's work, unfit for a white man.(17) Before the Chinese arrived, a few Spanish-American and Native American women engaged in the laundry business in "Washerwomen's Lagoon."(18) When the Gold Rush brought thousands of single men to San Francisco, the washerwomen began to charge extremely high fees; it was "almost cheaper to discard [a shirt] and buy a new one" than to launder it.(19) Some San Franciscans even sent their laundry to Canton, China, or Hong Kong, where foreign laundries laundered shirts for twelve dollars a dozen and then returned them weeks, or even months, later.(20) Chinese residents of Hawaii soon recognized their geographic advantage and entered into the laundry business, charging eight dollars a dozen.(21) Lured initially by gold fever, a few Chinese immigrants to the United States established local laundries. By 1850, with the arrival of Chinese competition, the price for washing shirts fell to five dollars a dozen.(22)

   Although a few Chinese immigrants to the United States pioneered Chinese involvement in the laundry industry, most prospected for gold.(23) Many of these Chinese met with a great deal of initial success.(24) Their good news reached home, and Chinese immigration to the United States soared from 2176 in 1851 to 20,026 in 1852.(25)

   Hostility among white miners to Chinese competitors grew substantially with the Chinese immigration boom of 1852.(26) As the Chinese...