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be naturalized may be put in the same class as one who cannot be naturalized, and thus imply that the former as a farmer is as much of a menace as the latter. Then they bid us to trust Congress for the conclusion that one who is a voluntary alien may be accorded more favorable treatment than one who is an alien by compulsion. They say that the Japanese in Washington are not discriminated against on account of their race or color because those of other races and other colors who choose not to become naturalized are treated in like fashion. In California they are not treated in like fashion. Here, then, the reason fails. In the opinion in the California case, race and color are not mentioned. They might, however, be mentioned with safety, for they are not mentioned in the Fourteenth Amendment. It is in the Fifteenth Amendment that the words "race" and "color" occur, and there they relate only to the rights of citizens of the United States to vote.
Enough has been said to show the artificiality of seeking to justify the discrimination against ineligible aliens on purely political grounds. If under the equal-protection clause we must, as Mr. Justice Butler seems to assume, justify discriminations that are favorable as well as those that are unfavorable, the political justifications fail when we come to discrimination in favor of aliens who with the opportunity to take steps toward citizenship prefer not to do so. It must seriously be questioned also whether political considerations underlie any of the discriminations in the alien land laws. Incapacity for suffrage can hardly be regarded as a menacing sign of lack of interest in the state or lack of power to work for its welfare when women were so long left unfranchised and yet not thought of as a menace on the land. The state is a community as well as a political entity, and interest in and work for the welfare of the community are not precluded by exclusion from political power as they are not ensured by possession of political power. Foreign allegiance is a bird of different feather, but foreign allegiance is not California's line of demarcation. Moreover it is hard to see how from any distinctly state point of view foreign allegiance is of more significance on the farm than in the mine or factory. There is an incomplete sequitur in the assumption that proper canons for the exercise of national power are necessarily proper canons for the exercise of state power.
This is not to say that the canons for the exercise of state power are necessarily different from those for the exercise of national power. It is quite possible that there is something in common in
the test of a desirable citizen and the test of a desirable farmer. It would of course be monstrous for a state to withhold all means of livelihood from aliens whom Congress chooses to admit, as the Supreme Court has fully recognized. Yet it is still open to proof that reasons motivating denial of citizenship may be sufficient reasons for exclusion from certain occupations. A Maryland court was of the opinion that even in 1890 there was a sufficient relation between the Constitution and the liquor traffic so that the legislature might wisely confine saloon-keepers to "those who, being natives of the country, might reasonably be supposed to have a regard for its welfare; or who, not being natives, had, as required by the naturalization law, proven by credible testimony before a Court of Justice, that they were attached to the principles of the Constitution of the United States, and were well disposed to their good order and happiness." So it may be with farming. That the President and the Senate have some such idea may be inferred from their failure to include farming in the occupations listed in the Treaty with Japan. Again, however, such reasons can not be deemed purely political. Thus we are still left with our conclusion that Mr. Justice Butler's references to political distinctions afford no adequate justification for California's choice of farming as the one occupation in which noneligible aliens are restricted or for California's favor to the nondeclarant eligible as contrasted with the ineligible.
There is, however, a more fundamental question which remains for answer. Do we need any justification for favorable discrimination? If there are adequate reasons for excluding the noneligible alien, what concern is it of his whether others who might also have been excluded have been left to their own devices? Does the discrimination in favor of others render more onerous the discrimination against him? Some favorable discriminations undoubtedly have this effect. Sometimes a restraint is less irksome if it is more general. Barbers forbidden to work on Sunday can hardly care that legal writers may still ply their trade on that special day, but they may seriously object to an an exception in favor of barbers who work in hotels. They may very wisely wish that all possible Sunday shaves be saved for Monday. When the complaint is made on the ground of discrimination, should it not appear that the person restrained is really prejudiced because the restraint is not
59 Cases cited in note 40, supra.
60 Trageser v. Gray (1890) 73 Md. 250, 254, 20 Atl. 905.
wider? Should one be entitled to relief under the equal-protection clause on the ground of unfavorable discrimination when one would not be a bit happier if the discrimination were removed by making the restraint universal?
From the cases it is clear enough that discriminatory restraint can run afoul of the equal-protection clause even though all that the complainant really objects to is the restraint. Quite often it seems that courts place their decisions on the ground of unconstitutional discrimination where their aversion is really to the restraint on individual liberty and yet the restraint is not such as to make it wanting in due process of law under established precedents. An effort to systematize the decisions under the equal-protection clause is not likely to meet with much success. The cases represent a congeries of particular judgments rather than any uniform line of doctrine. Yet it seems clear that a discriminatory restraint such that the restraint would not be mitigated by extension of it to others requires much less justification than one which imposes additional hurt because of the discrimination. What the ineligible alien really objects to is that he loses desired access to the land rather than that some other aliens do not. When, Sampson-like, he seeks to share his fate with others, he deserves but slight consideration. Mr. Justice Butler's justifications for the favorable treatment accorded to other aliens may not be very good and still be good enough for practical purposes. In the absence of hampering treaties, the alien land laws might be extended to all aliens. It would be going rather far to say that California, because it had done less than it might, had done more than it could.
One discrimination which the ineligible alien did not see fit to complain of is that between agricultural land and other land. Some ingenious advocate might have urged that an ineligible alien suffered an unconstitutional injury under the equal-protection clause because he was restrained only in respect to agricultural land and not in respect to all land. Such an absurdity would hardly be worth mentioning but for the fact that a similar one has had the august sanction of the Supreme Court. In Truax v. Corrigan Chief Justice Taft lays down that employers are denied the equal protection of the laws by being foreclosed from enjoining picketing employes when they still may pursue that remedy against others.
61 (1921) 257 U. S. 312, 66 L. Ed. 254, 42 Sup. Ct. Rep. 124.
Certainly the employer is not prejudiced because his loss of injunctive relief is partial rather than complete; and the minority of the court were justified by all the precedents in declaring that the plaintiff can not complain of a discrimination from which he does not suffer. The employer is himself treated differently in different situations and the essence of his equal-protection objection is that he is not treated as harshly in all cases as he is in some. Yet Chief Justice Taft asserts that equal protection means equal protection against all similarly situated as well as for all similarly situated. This is one of the clearest cases in which an inhibition disliked for intrinsic reasons not sufficient to declare it unconstitutional under the dueprocess clause is found wanting under the equal-protection clause on fantastic reasoning. In logic this was no more absurd than it would have been to grant the ineligible alien relief under the equalprotection clause because he suffers only in respect to agricultural land rather than in respect to all land. It certainly would have been unwarranted for the court to have pursued such logic for the benefit of those who lack "interest in, and the power to effectually work for the welfare of, the state."
It may be questioned whether the equal-protection issue was worth the preponderant attention which it receives in Mr. Justice Butler's opinions. His discussion follows a terse rejection of the due-process complaint. This is by far the more fundamental one from the standpoint of the suffering alien. His interest in what happens to him is far more vital than his interest in what does not happen to somebody else. It is clear enough that citizens could not be kept from acquiring an interest in agricultural land. Once it is established that an alien has no due-process objection to such exclusion, the discrimination against him in favor of citizens is readily justified. It needs but little additional justification to sustain the discrimination in favor of embryo citizens. Yet Mr. Justice Butler adduces reasons of a political character which fail completely when he comes to the discrimination in favor of aliens who might renounce their foreign allegiance but do not choose to do so. In so doing he calls in question the character of the political justification on which the due-process issue was decided. He invites inquiry whether the reason relied on to justify the discrimination and the restraint was the real reason motivating the legislation or merely a fortunate excuse.
If the canons of equal-protection are amorphous, those of dueprocess are almost equally so. The problem in each case is one of comparing the detriment to the individual with the benefit to the public. If the injury is slight the compensating benefit need not be so great as where the injury is more serious. So, too, if the legal quality of the individual interest is precarious, it requires less justification to curb it or qualify it than it does to deal adversely with an interest of higher legal order. Thus corporations which depend for their continued existence on the grace of the state have less protection against burdensome regulation than does an individual. Inheritances which might be prohibited may be taxed more whimsically than property generally. Drastic regulations of foreign commerce are sustained where equally drastic regulations of interstate commerce would be seriously suspected, since Congress might put an embargo on all foreign commerce but not on all interstate commerce. In pre-arid times it was fully recognized that the power to forbid the liquor traffic carried with it a power to impose all sorts of drastic and vexatious restrictions on any traffic that was permitted. Where the enterprise or the enterpriser is in a general state of constitutional insecurity, courts are not very fussy in finding justification for restraints less onerous than others that might constitutionally be imposed. Thus constitutional complaints are sometimes dismissed because the complainant is not entitled to much consideration, without any careful inquiry into the question whether what has been done to him has sufficient inherent justifications of its own.
In this class of cases fall those with which we are now dealing. The alien was something of a pariah at common law and it has always been assumed in this country that "each state, in the absence of any treaty provision to the contrary, has power to deny to aliens the right to own land within its borders."62 This recital leads Mr. Justice Butler easily to the affirmation that "state legislation applying alike and equally to all aliens, withholding from them the right to own land, cannot be said to be capricious or to amount to an arbitrary deprivation of liberty or property, or to transgress the due-process clause." This rests the due-process part of the decision solely on the inherent weakness in the position of the alien. It is only when
62 Terrace v. Thompson (1923) 263 U. S. 197, 217. 63 Ibid., 218.