Part I: Subnational Actors, Narcotics, and the Scope of the States' Powers
III. Evading a Federal Constitutional Challenge to Anti-Opium Law
such harms.47 When the court decided Sic, it was unable to see in opium possession such a public harm and was unwilling to set aside the nuisance-based view of the police power that still had considerable purchase in the state.
Nonetheless, the broader view of the police power that gained traction over the second half of the century presaged the greater restrictions the court would soon countenance. The court’s resolve to protect Californians’ individual liberties from state encroachment, in other words, would wane in the years ahead, As that resolve weakened, the Chinese Californians who bore the brunt of municipal and state anti-opium laws were left with one fewer place to turn to fight the narcotic legislation that targeted them. Within 25 years, the California Supreme Court would find that the state had the power to criminalize possession—the very act for which it found state authority lacking in Sic.
For a generation, local and state policymakers had passed measure after measure
targeting California’s Chinese population, only to see state and federal courts strike them down on federal constitutional grounds. Before 1868, when the states ratified the Fourteenth
Amendment, many of these cases hinged on Congress’s authority over interstate commerce.48 As early as 1857, the California Supreme Court construed the state’s imposition of a head tax on foreigners entering the state as impermissibly intruding on Congress’s power over foreign commerce. Five years later, the state supreme court struck down on the same grounds a San Francisco ordinance that levied a special tax on Chinese residents.49 By the middle of the
nineteenth century, in other words, immigrants pressing their cases under federal law had already begun to obstruct state lawmakers in their anti-Chinese agenda.50
After 1868, litigants could rely on the equal protection clause of the Fourteenth
Amendment, which allowed the federal government to intervene whenever any state denied to any person the “equal protection of the laws.” The Civil War had vastly increased the size and power of the federal government. The Reconstruction Amendments that followed promised a new, national view of citizenship and appeared to commit the federal government to protecting those rights against state encroachment.51 In the 1870s, the federal courts and the Fourteenth
48 U.S. Const. art. I, § 8, cl. 3. Courts continued to rely on the Commerce Clause to strike down anti-Chinese legislation even after litigants could rely on equal protection. See, e.g., People v. S. S. Constitution, 42 Cal. 578 (1872) (striking down a foreign-passenger bonding law as a regulation of foreign commerce).
49 People v. Downer, 7 Cal. 169 (1856); Lin Sing v. Washburn, 20 Cal. 534 (1862). San Francisco cast the special tax as protecting “free white labor against competition from Coolie Chinese labor.”
50 This is not to suggest that Chinese litigants always succeeded in challenging laws that targeted them. A notable exception is the effort to overturn California’s law banning Chinese testimony, which survived both indirect and direct challenges during the same period. See People v. Jones, 31 Cal. 565 (1867); People v. Washington, 36 Cal.
658 (1869); People v. Brady, 40 Cal. 198 (1870).
51 “The Civil War and Reconstruction,” summarizes legal historian William Forbath, “brought a national draft, a national income tax, national monetary controls, and a national welfare and educational agency for former slaves.
They had brought national citizenship and a vast expansion of federal court jurisdiction.” William E. Forbath,
“Politics, State-Building, and the Courts, 1870-1920,” Cambridge History of Law in America, Vol. II, Michael Grossberg and Christopher Tomlins, eds. (New York: Cambridge University Press, 2008): 643-696, 643-44.
Amendment thus represented a new and promising avenue to challenge baldly race-motivated acts.
And federal courts struck down both local and state anti-Chinese laws from California as violations of equal protection. The U.S. Supreme Court famously invalidated a San Francisco laundry ordinance in 1886 Yick Wo v. Hopkins, finding that city authorities had violated equal protection by forbidding all Chinese applicants from operating their laundries while allowing all others to proceed unmolested. Lower federal courts followed suit. In 1879 and 1880, the federal circuit court in California invalidated, for example, both San Francisco’s 1876 “queue
ordinance” and a state statute prohibiting commercial fishing by Chinese persons.52 The former took aim at the braids Chinese men traditionally wore and mandated that male prisoners in the county jail have their hair cut “to an uniform length of one inch from the scalp.” The court concluded that the ordinance “was intended only for” and worked a special hardship on “the Chinese in San Francisco,” and it held that the Fourteenth Amendment forbade such “hostile and discriminating legislation.” Of the fishing prohibition, the circuit court held that subjecting “the Chinese to imprisonment for fishing in the waters of the state, while aliens of all European nations under the same circumstances” remained free from punishment, amounted to a denial of equal protection.53 By the time they weighed opium restriction in earnest, California lawmakers had more than sufficient cause to fear constitutional challenges to laws inspired by racism.
Augmenting lawmaker concern was evidence that federal courts might consider more than the wording of statutes when they decided equal protection challenges. In Yick Wo, the Supreme Court expressly noted that the challenged law was “fair on its face, and impartial in appearance.” Nonetheless, it found the law had been “applied and administered by public
52 Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886); Ho Ah Kow v. Nunan, 12 F. Cas. 252 (C.C.D. Cal. 1879) (No.
6,546); In re Ah Chong, 2 F. 733 (C.C.D. Cal. 1880).
53 Ho Ah Kow, 12 F. Cas. at 253, 255-56; In re Ah Chong, 2 F. at 737.
authority with an evil eye and an unequal hand.”54 In striking down San Francisco’s “queue ordinance,” the circuit court in Ho Ah Kow also evinced a readiness to look beyond the law’s terms. It wrote that where a facially race-neutral ordinance operated only “upon a special race, sect or class,” it “may justly conclude that it was the intention of the body adopting it that it should only have such operation.”55 To survive challenge under equal protection, these cases suggested, the motivation behind municipal and state anti-Chinese laws would have to be
obfuscated by more than policymakers’ use of general terms.56 Such exacting review of state and municipal anti-Chinese measures no doubt frustrated California policymakers, even as they must have given many Chinese Californians hope that they could resort to federal challenges to fight laws passed with the bald intention to harm them.
Commentators, too, demonstrated an understanding of the federal constitutional
limitations that litigants could use to invalidate baldly racist legislation. Popular awareness of the Fourteenth Amendment is suggested by a December 1878 Sacramento Daily Union editorial bemoaning the “futility” of anti-Chinese proposals before the constitutional convention then convened. The proposals included provisions prohibiting Chinese immigration and preventing firms from hiring Chinese employees.57 Angered by what it saw as an obvious political ploy, the Daily Union editorialized:
The State cannot . . . deprive [the Chinese] of the equal protection of its laws, and if the Convention thinks it possible to make the Chinese go by any such measures as it has adopted it will find that it has merely run its head against a wall. It is perfectly safe to say that in so far as the report of the Committee on Chinese adopted the other day contemplates the application of discriminating
54 Yick Wo, 118 U.S. at 373-74.
55 Ho Ah Kow, 12 F. Cas. at 255. The circuit court in Ho Ah Kow announced an unwillingness by judges to shut their
“eyes to matters of public notoriety and general cognizance.”
56 Litigants’ equal protection challenges to anti-Chinese laws also came up short of having laws invalidated. See, e.g., Soon Hing v. Crowley, 113 U.S. 703 (1885) (finding that an earlier version of San Francisco’s laundry ordinance did not violate equal protection).
57 Sacramento Daily Union, December 21, 1878.
legislation of any kind to the Chinese, it is totally worthless and invalid. The first attempt made to carry out such provisions would expose their futility, and then the public would discover, too late, that nothing at all had been really done by the Convention.58
As the Daily Union’s coverage demonstrates, policymakers and the public in California certainly understood equal protection as an impediment to statutes targeting Chinese Californians.
Despite this history of federal and state courts invalidating anti-Chinese measures on federal constitutional grounds, Mowry did not raise a Fourteenth Amendment challenge in either Sic or in a second opium case six years later, Ex parte Hong Shin. He opted not to do so though courts had indicated their willingness to assess such statutes with an eye on lawmaker intent, and not just language, and despite open discussion by policymakers and the public of the likelihood of equal protection challenges to anti-Chinese laws. In fact, he never raised the possibility that these anti-opium statutes might have had discriminatory purpose or effect.59 He failed to raise this challenge even though, with his history of representing Chinese clients, it could not have escaped his attention that Chinese Californians had successfully used equal protection to attack laws that directly targeted them. Nor could he have failed to appreciate the underlying racialized purpose behind anti-opium measures, so widely broadcast at the time. Why would Mowry have decided not to raise equal protection in Sic and Hong Shin and argue that the laws he challenged
58 Ibid. On a separate occasion, the Daily Union criticized the “barbarism” of the convention’s anti-Chinese propositions, declaring them in “flagrant contravention of the supreme law of the land” and predicting “they would be declared unconstitutional by the Courts.” Though the daily’s focus remained on California’s inability to
circumvent the Burlingame Treaty, its editorials made clear the convention’s proposals violated both the treaties and laws of the U.S. Sacramento Daily Union, December 17, 1878.
59 See generally Pet’r’s Br., In re Sic, 73 Cal. 142 (1887); Pet’r’s Br., Ex parte Hong Shin, 98 Cal. 681 (1893). The published opinions of state courts from the late nineteenth century indicate that Mowry was not alone in opting not to raise an equal protection challenge to opium restrictions. I have found evidence of only one such claim, in an 1897 challenge to a Missouri opium den law. See State v. Lee, 38 S.W. 583 (Mo. 1897). Among the defendant’s grounds for appeal in that case was a contention that the Missouri law ran afoul of the Fourteenth Amendment by denying the defendant “equal protection with other citizens under the law.” Ibid., 583. The state supreme court dispensed with the argument without discussion. Ibid., 584. More often, Fourteenth Amendment challenges to opium restrictions focused on due process and argued that drug laws had unconstitutionally encroached on a property right. See, e.g., Territory v. Ah Lim, 24 P. 588 (Wash. 1890); Luci v. Sears, 44 P. 693 (Or. 1896).
in those cases either had racist intent or had been enforced with particular vehemence against Chinese Californians?
The narcotic laws’ formal-race neutrality and the public’s growing awareness of white opium use must have played a part in Mowry’s decision. Addressed to a practice on the rise among whites and with their underlying purpose cloaked in race-neutral terms, the Stockton and San Francisco ordinances at issue in Sic and Hong Shin did not raise the sort of easy equal protection problem that might have resulted in quick invalidation.
Moreover, Mowry may have determined not to offer equal protection challenges because, by the 1880s, federal judges had eroded much of the Fourteenth Amendment’s once-considerable potency. In a series of decisions beginning with Justice Miller’s opinion in the Slaughter-House Cases, the Supreme Court limited the Fourteenth Amendment’s reach and impeded the federal government’s ability to guarantee equality of treatment for African Americans and others.60 By reading the Amendment to apply only to “state action” and construing it to protect only the privileges of federal citizenship—a “narrow class” compared to those incident to state
citizenship—the Court rendered the Amendment a feeble vestige of what it might have otherwise been.61 By 1883, when the Supreme Court issued its decision in The Civil Rights Cases,
reaffirming the “state action” requirement and the Court’s earlier decision that the Fourteenth Amendment did not support laws reaching private violence or discrimination, equal protection had ceased to serve as an important limitation on state acts.62 In the words of William Stuntz, for
60 Slaughter-House Cases, 83 U.S. 36 (1872).
61 See Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham:
Duke University Press, 1986), 174-96; Loren Miller, The Petitioners: The Story of the Supreme Court of the United States and the Negro (New York: Pantheon Books, 1966), 109-117; Goldstone, Inherently Unequal, 130.
62 Civil Rights Cases, 109 U.S. 3 (1883).
a fifty year period beginning in 1883, “judges saw equal protection arguments as unserious” and did little to address “discriminatory treatment under formally neutral laws.”63
Before Congress began adding its own criminal statutes to police narcotics, then, federal jurists immunized local and state anti-narcotic laws—and, indeed, nearly all local and state laws, criminal or otherwise—from invalidation on federal constitutional grounds. With the threat of federal intervention into questions of state politics lower after the 1870s, lawmakers acted with increasing confidence that they had found in opium restriction a means to target Chinese Californians that would survive attack in the federal courts. They would soon begin expanding their anti-narcotic efforts, criminalizing additional practices and substances. Law enforcement officers would continue, through subsequent expansions to anti-narcotics law, to police Chinese Californians more than any other group in the population. Equal protection no longer worked to stop them.
IV. Expanding the State’s Response to Opium to Reach New Groups and Drugs