Chester James Antieau reaffirms my own findings that there are Equal Protection Clauses in treaties. I found that out studying Moorish Treaties of the United States which use the phrase Equal Justice, a further investigation informed me that Equal Justice encompasses Equal Protection under the law and Due Process.
Mr. Antieau provided in 1952 that:
It is by now abundantly clear that aliens suffering under state-imposed inequalities in owning and enjoying land, in taxation, and in opportunities to work can be protected under valid treaties providing for equality to which the United States is signatory.’9
Likewise, it is established that certain state-imposed unequal burdens upon aliens can be annulled under the supremacy clause of the Constitution. 0
A good illustration is found in Hines v. Davidowitz, in which the Court set aside a Pennsylvania statute requiring the registration of aliens, on the reasoning that the federal alien registration laws left no room for state complementation. 1
Furthermore, there recurs from time to time the view that innate federal power over aliens is exclusive and hense, whether or not there is federal statutory occupation of the field, there is no room for state imposition of inequality or burden upon aliens properly admitted under federal law? 2
Although the California Supreme Court invalidated its alien land law under the equal protection clause of the Fourteenth Amendment, and specifically denied the United Nations Charter was self-executing and capable of invalidating conflicting state laws, 9 it is worth remembering that the California appellate court had ruled the alien land law unconstitutional because violative of the Charter.
Recalling that Chapter IX, Article 55 of the Charter requires that “the United Nations shall promote.., universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion,” and that in the following articles the member nations pledge themselves to take action to accomplish these purposes, the appellate court stated: “Clearly such a discrimination against a people of one race is contrary both to the letter and to the spirit of the Charter which, as a treaty, is paramount to every law of every state in conflict with it.”9′
It should be noted that Mr. Justice Black has indicated that he considers the alien land laws unconstitutional because in violation of the United Nations Charter.95 Similarly, the rights of a religious minority to equal opportunity of land enjoyment were protected by a Canadian appellate court which held that a covenant restrictive of ownership by a religious group was contrary to the public policy of the Dominion of Canada as found, in large part in this instance, in the United Nations Charter.’
The earlier-noted language of the United States Supreme Court in Hurd v. Hodge most assuredly indicates that there is an identical public policy in the United States.”7
Influenced, too, by the principles of human rights recognized and contained in the United Nations Charter, the Supreme Court of Oregon invalidated the alien land laws of that state under the Fourteenth Amendment.9
Finally, Mr. Justice Carter of the California Supreme Court has suggested that since our adoption of the Charter, state miscegenation laws are no longer constitutionally permissible.” Occasional cases indicate the possibilities inherent in the equal protection clause for insuring some substantial equality of protection and opportunity to the aliens whom we have willingly accepted, 10 but the whole host of cases upholding classification of aliens apart from citizens attest the inadequacy of the clause, under the United States Supreme Court’s older interpretation, to assure these people a decent equality.1 ‘ 1
For example, under the latest expression directly in point,”0 2 the United States Supreme Court has sustained alien land laws such as have more recently been invalidated by the supreme courts of California and Oregon. 03
Happily, the Court appears to be trending away from its earlier position and, wonderfully given true enlightenment as to the meaning of the equal protection clause of the Fourteenth Amendment by the state courts, the United States Supreme Court may yet fashion of the Clause an adequate weapon for invalidating inequalities and injustices imposed upon our alien guests.
To the extent that the spirit of the United Nations Charter stimulates the Court into an adequate utilization of the equal protection clause, it becomes itself an unnecessary judicial weapon in the armory of equality.