3 5 9C o m p o n e n t s o f L e g a l R e a s o n i n g(3) These are the features that justified declaring the ordinance in Yick
Wo unconstitutional.
(4) There are no important enough differences between Yick Wo and
Plessy to justify distinguishing the precedent.
(5) Yick Wo ought not to be overturned.
(6) If a precedent is similar to a present case in the respects that
justified the decision in the precedent, and if the precedent ought
not to be either overturned or distinguished, then the present case
ought to be decided in the same way as the precedent.
∴(7) The statute in Plessy ought to be declared unconstitutional.
This argument is now valid, but validity does not get us very far. We still
need to know whether its premises are true.
Clearly, the crucial question is this: How do we determine which features
of the precedent are needed to justify that decision? What we need to do is
to extract a general rule of law that provides the best justification for the
precedent decision.
The most obvious way to argue that a certain feature is important is to
look at the written opinion in the precedent and see what the Court said—
more specifically, what reasons it gave for its decision. In Yick Wo, the Court
wrote:whatever may have been the intent of the ordinances as adopted,... though the
law itself be fair on its face and impartial in appearance, yet, if it is applied and
administered by public authority with an evil eye and an unequal hand, so as
practically to make unjust and illegal discriminations between persons in similar
circumstances, material to their rights, the denial of equal justice is still within
the prohibition of the Constitution.Here the Court explicitly announces that the intent of the ordinance and its
appearance (for example, whether the ordinance explicitly mentions race or
ethnic background) did not matter to their decision. The Court also declares
that it did matter that the ordinance in practice creates inequalities in rights.
Such official pronouncements by a court have considerable force for future
courts in legal arguments.
Another way to determine which factors matter is to apply the nec-
essary condition test or the sufficient condition test from Chapter 10 to
a group of precedents. These tests had to be passed by each side in the
Plessy case. Plessy claimed that a sufficient condition of unconstitution-
ality is that a law has a discriminatory effect on the rights of a particular
racial or ethnic group. This claim would fail the sufficient condition test if
there were any precedent still in force in which a law was found to have a
discriminatory effect but the law was not held unconstitutional. Because
there was no such precedent, the sufficient condition test does not exclude
Plessy’s claim that discriminatory effect is sufficient by itself to make a
law unconstitutional.97364_ch18_ptg01_351-382.indd 359 15/11/13 11:38 AM
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