Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.
Hirabayashi v. U.S.
In 1954, seventy-four years after the U.S. Supreme Court held that African Americans could not be banned from jury service by statute, and fifty-four years after it ruled that they could not be purposely excluded from venires due to their “race or color” through court, executive, or administrative action,[1] the Court found that Pete Hernandez had been denied equal protection of the laws under the Fourteenth Amendment. His constitutional rights were violated because of the de facto, systematic exclusion of Mexican Americans from the pool of potential jurors–and thus juries–in Jackson County, Texas.[2]
In arguing the case before state courts, civil rights lawyers for the appellant were confronted with a paradox: because Mexican Americans were classified as white by the government and not as a separate race, lower courts held that they were not denied equal protection and there was no violation of the Fourteenth Amendment. Attorneys for the state of Texas and judges in the state courts contended that the amendment referred only to racial, not “nationality,” groups. Since Mexican Americans were tried by juries composed of their racial group–whites–their constitutional rights were not violated. Using rhetorical analysis, I discuss the implications of the arguments in Hernandez v. Texas, which held that “nationality” groups could be protected under the Fourteenth Amendment. I analyze the language used in this and other cases about jury selection to impart how community norms helped to define and circumscribe the meaning of citizen-ship for Mexican Americans, as well as to shape their strategies to gain full and equal citizenship.
I introduce the case by providing the historical context of Mexican Americans’ social and legal status in Texas from World War I through World War II. I describe their initial efforts to challenge their de facto exclusion from jury panels. I then summarize major precedents prohibiting discrimination in jury selection and explain why Texas state courts declined to apply these to cases involving Mexican Americans. The arguments described shaped the strategies used by the attorneys in Hernandez. This introduction is followed by a close reading and analysis of the terminology chosen in the Hernandez case by the state attorneys and judges, by the attorneys for the appellant, and by the Supreme Court. I show that these choices constituted strategies to construct Mexican American’s place in the constitutional order and to define their participation as citizens. Finally, I explore the congruence of whiteness, citizenship, and American identity.
The section entitled “Citizenship and Racial Identity” further explores the themes raised by the terminology chosen in the Hernandez case, but in a broader context. In the last major section, “Citizenship as Social Standing,” I suggest that the composition of juries is an indicator of the nation’s self-understanding at a particular point in time and that Hernandez revealed America’s self-understanding to be racialized. I then discuss how the strategy chosen by the Mexican American attorneys for the appellant upheld the power of whiteness, while partially challenging America’s racialized self-understanding.
Historical Context
In 1848, the Treaty of Guadalupe Hidalgo set the framework for Mexicans who resided in the ceded territories to become U.S. citizens and established a precedent for allowing Mexicans to naturalize. Indeed, many prominent Mexican Americans participated in local governance in Texas, California, and New Mexico. However, as noted historian David Montejano shows, Mexican Americans’ influence in governance waned as they lost their property.[3] Beginning in the 1910s, Anglo “newcomers” in Texas further challenged Mexican Americans’ citizenship rights and even their very inclusion in the polity. A number of factors converged to create the conditions for discriminatory treatment of Mexicans and Mexican Americans. First, as a result of the Mexican Revolution beginning in 1910, many poor Mexicans were displaced and fled across the border. Mexican immigration increased from 0.6 percent of total immigration in 1900-1909 to 3.8 percent from 1910-1919.[4] In 1924 the proportion of Mexicans entering the U.S. legally skyrocketed to 12.4 percent of total immigration and rose to a high of 19.9 percent by 1927.[5] The sudden surge was a direct result of the passage by Congress of the Immigration Act of 1924, commonly known as the Quota Act.[6] In this act, Congress exempted immigrants from western hemisphere nations from all provisions of the act because the president wanted to maintain friendly relations with neighboring countries and had threatened to veto the act if passed without the exemption. Agricultural and industrial concerns in the upper Midwest began recruiting Mexicans, who followed the jobs. For the first time, white Americans across the nation began to consider Mexican immigrants as a threat. Second, as Montejano shows, the development of large-scale commercial agriculture in the southwest drove the demand for farm workers and for “cheap labor.” Large-scale production not only made small farms uncompetitive but also created a migratory labor force. This undermined and depersonalized long-term relationships between Anglo landowners and Mexican workers and altered the structure of social relations.
As Montejano shows, due to these changes, Mexican Americans found that their image in the minds of white Americans in the southwest was transformed. Anglos rarely distinguished between Mexicans and Mexican Americans and painted a picture of “Mexicans” as an economic and cultural threat to America. In this period, Mexican Americans increasingly were denied many of the rights of citizens. Like the African American population, many were placed in segregated schools with inferior educational resources, barred from restaurants, movie theaters, bathrooms, and public swimming pools, and denied the possibility of living in white neighborhoods.
Yet none of this segregation was formally encoded in law. For legal purposes, Mexican Americans were white. They were counted as white in the census and, unlike non-whites (other than those from Africa), were able to naturalize.[7] However, law clashed with perceptions of racial “reality,” creating a citizenship status for Mexican Americans that many considered to be legal fiction. This gap between their legal and social standing was reflected in local interpretations of the law and in the regulation of their political participation through mechanisms such as poll taxes, literacy tests, and blue ribbon jury commissions. This unequal treatment continued through the war years and into the 1950s. Mexican Americans’ unequal status was especially evident in their representation on juries. While not prohibited by law from serving, they were almost universally excluded on the grounds that they were not qualified to serve.
As early as the 1920s, civil rights activists emphasized the importance of securing Mexican American participation on juries. In this era, emerging Mexican American civic groups in Texas often addressed civil rights issues informally, through discussions with and letters to Anglo public officials requesting reform. For instance, members of the Order of Sons of America, which was established in 1921, claimed that the Order secured for Mexican Americans the rights to serve on juries and sue Anglos in Corpus Christi.[8] One noted, “‘The first thing we did was to write a request that we be admitted to the jury. I had noticed that in court cases, Mexicans were sent to jail for offenses for which Americans were given suspended sentences or let off.’ The request was acceded to, and those qualified by knowledge of English, etc., for jury service have been admitted.”[9] However, the Order’s claims to victory were shortsighted, as wholesale exclusion of Mexicans continued to be widespread in Texas.
After a lull in activism in the 1930s due to the Great Depression and repatriation,[10] in the early 1940s a small contingent of Mexican American lead-ers began a concerted attack through the courts on discrimination against Mexican Americans. These leaders’ expressed purpose was to test the state’s new Good Neighbor Policy.[11] In 1943, the Mexican Minister of Labor declared that braceros (guest workers) would no longer be sent to Texas because of the poor treatment and racial discrimination they experienced there. The Texas governor responded by issuing a proclamation prohibiting discrimination against all “caucasians,” aimed at reassuring Mexico that Mexicans and Mexican Americans would be treated as white and that Texas was a “good neighbor.”[12] These activists contacted national civil rights organizations for advice on how to test the Good Neighbor policy. In one letter M. C. Gonzalez, who brought an early, unsuccessful jury discrimination case to trial, thanked an American Civil Liberties Union (ACLU) representative for providing him with an outline of a procedure to attack jury discrimination based on the strategy used in the landmark case Norris v. Alabama.[13] A letter from the Texas Civil Rights Fund (TCF) to the Robert Marshall Civil Liberties Trust requested funds to support Mexican Americans’ cases addressing jury discrimination, the white man’s primary, school segregation, real estate covenants, and state sponsored terror. Another letter from a TCF officer to a League of United Latin American Citizens (LULAC) officer explains why they declined to litigate a jury discrimination case involving a Mexican American, demonstrating that activists carefully selected test cases.[14] This coordination resulted in several successes, including Westminster School District vs. Mendez, on school segregation, and Clifton v. Puente, on restrictive real estate covenants, and some failures, like Terrell Wells Swimming Pool v. Rodriguez. Lawyers fighting discrimination in jury selection, however, repeatedly lost their cases.[15]
The qualifications for petit jury service in Texas were: that a juror be a male citizen eligible to vote, a freeholder or householder in the county, that he be of sound mind, and that he be able to read and write.[16] In addition to these requirements, grand jurors had to be of good moral character and could not have been convicted of, or under indictment for, theft or a felony. There were two exceptions to these requirements. First, “the decisions hold that it is not necessary that a person should read and write the English language fluently.” That is, judging the ability to read and write was left to administrative discretion. Second, if the state could not find enough qualified jurors, they could disregard the payment of poll taxes as a prerequisite of the “eligibility to vote” requirement.[17] The requirement, reduced to a minimum, was to be a male citizen of the county who could, in theory, exercise the right to vote.
The jury selection process was facially neutral. A judge appointed several jury commissioners, who selected grand and petit jurors from county assessment rolls.[18] However, based on numerous anecdotal reports, it is clear that discrimination against Mexican Americans in jury selection was common. Pauline Kibbe, an advocate for Mexican Americans and Mexicans in the U.S., and executive secretary of the Good Neighbor Commission (1943-1947), estimated that by 1946 fifty counties in Texas with significant Mexican origin populations (fifteen to forty percent) had never called a Mexican American for jury service, even in civil suits. She related a remarkable story of a challenge to a jury panel with one hundred prospective Anglo jurors, despite a countywide “Mexican” population of thirty percent. “Rather than establish the precedent of allowing a Latin American to serve on either a grand jury or a trial jury, the authorities released the accused, and he has never been brought to trial.”[19]
This practice denied people of Mexican ancestry the right to equal protection outlined in the Fourteenth Amendment.[20] Because the possibility of participating in the judicial process was proscribed, it also contravened all Mexican Americans’ equal protection rights as prospective jurors. By depriving them of the opportunity to exercise their right to participate on the same terms as others, the state denied that they were peers, or equal members of the polity. Peerage implies a combination of civil and social status. Legally, Anglos could not deny that Mexican Americans were citizens, but they were able to maintain and reinforce social distance and erect legal distinctions (such as qualifications for jury service) by not treating Mexican Americans as peers.
In 1931 Alonso Perales, a lawyer and civic educator, expressed outrage about the unpunished murders of several people of Mexican descent in Willacy and Hidalgo counties in Texas. He emphasized that the presence of Mexican Americans on juries was imperative for justice. “We ought to insist that on all juries . . . there is adequate Mexican American representation. In the murder cases that I just referred to the grand juries of Willa-cy and Hidalgo counties refused to prosecute the presumed killers. Perhaps this would not have occurred if on those grand juries there had been adequate Mexican American representation.”[21] Further, he recognized the role of local officials in denying those of Mexican descent civil rights and explicitly invoked the Fourteenth Amendment as the source of his claim to equal treatment under the law. “In none of these cases did they punish the murderers, which shows that the authorities do not grant to the unfortunate victims equal protection of the laws guaranteed to us in the fourteenth amendment of the Constitution of the United States of America. In these cases the authorities were deficient in their duty due to racial prejudice or to their incompetence.”[22] Finally, he urged Mexican Americans to vote against these authorities and for officials who would truly represent them.
Securing Mexican American participation on juries remained a priority until the Hernandez case reached the U.S. Supreme Court. A lawyer for Hernandez identified jury participation as one of three principal civil rights issues, along with school desegregation and an end to restrictive real estate covenants. With optimism, he commented that Hernandez “marks the end of legal relief for our basic social ills. . . . This was the last major issue left for the courts to decide.”[23]
Clearly, jury service was viewed by Mexican American civic leaders as vital to securing their political and civil rights. The connection between civil and political rights and social equality was made explicit, and they encouraged Mexican American citizens to exercise their rights in order to influence the political process.
Prior Jury Discrimination Cases
The Civil Rights Act of 1875 guaranteed African Americans the right to serve on juries.[24] The first U.S. Supreme Court case that dealt with non-white representation on juries, Strauder v. West Virginia, held that jury service was included in the Fourteenth Amendment’s guarantee to blacks of all the civil rights enjoyed by whites and that the exclusion by statute of a particular class of people based on “color” was unconstitutional, as it would stigma-tize them and create a category of second class citizens. The Court stated, “The very idea of a jury is a body of men composed of the peers or equals (as) . . . persons holding the same legal status in society as that which he holds.” [25] But in the same year, in Virginia v. Rives, the Court did not find the de facto exclusion of blacks from juries problematic.[26] In Strauder blacks were excluded from the jury pool by statute, while in Rives they were not. In case after case, citing Rives, the Court refused to find all-white juries unconstitutional so long as selection procedures were facially neutral. Similarly, the findings in Neal v. Delaware were overlooked until Norris. [27] In Neal the Court ruled that because African American males were electors under the Fifteenth Amendment, they were also eligible for jury service, which was drawn from voter rolls. However, instead of buttressing the strong statements made in Strauder, the Court reversed on the basis that it was incredible to say that there were no blacks qualified to serve. While it ruled that the defendant made a prima facie case of discriminatory treatment, it did not shift the burden to explain the discrimination to the state. Instead, denial by the state of discriminatory intent was deemed satisfactory.
In Carter v. Texas, the Court elaborated that discrimination against blacks based on their “race or color” in jury selection was illegal, whether effected through legislation, court decree, or executive or administrative discretion.[28] However, the state courts interpreted this as prohibiting express or intentional discrimination. Until Norris v. Alabama in 1935, states were able to convince lower courts that the absence of blacks was by chance, not by design.[29]
In Norris, the U.S. Supreme Court reviewed the evidence for the first time. The Court declared that prima facie discrimination could be shown through a pattern of the absence of blacks from juries, not just jury pools. Once this was established, the burden shifted to the state to provide a convincing explanation for the underrepresentation of blacks. It promulgated the “rule of exclusion” as the standard for scrutiny, defined as “long continued, systematic and arbitrary exclusion of qualified negro citizens from service on juries, solely because of their race and color.”[30] One way to prove such exclusion was to show a dearth of names of the excluded group on jury rolls. In contrast to past cases, declarations that jury commissioners did not intend to discriminate were not accepted as evidence of nondiscrimination.[31] That is, the Court ruled on the result of jury selection procedures, rather than on the stated intent of officials. Norris’s exclusion rule was applied to cases of blacks in Texas in Smith v. Texas, Hill v. Texas, Cassell v. Texas, and Ross v. Texas.[32] Similarly, in Juarez v. Texas, the Texas court held that the systematic exclusion of Catholics from juries was barred by the Fourteenth Amendment.[33] Chief Justice Earl Warren referred to this case as analogous to Hernandez when he noted, “except where the question presented involves the exclusion of persons of Mexican descent from juries, Texas courts have taken a broader view of the scope of the equal protection clause.”[34]
Yet in all of the state level decisions on the exclusion of Mexican Americans from juries, Texas courts denied that Norris was applicable. Instead, the courts held that Mexican or Mexican American defendants had to provide proof of intent to discriminate in each case. For example, in Lugo v. Texas, three years after Norris, the Texas court held that “In the absence of a showing of an abuse of trial court’s discretion, Court of Criminal Appeals would not be authorized to disturb trial court’s finding.”[35] As in cases prior to Norris, the court ruled that the appellant did not provide evidence that there were qualified members of his group available for jury service. There were three hundred to four hundred Mexican Americans who were eligible to vote in San Patricio County. In addition, the sheriff himself testified that in his fifteen-year tenure only two Mexican Americans had been summoned and none had served. But this was not deemed sufficient evidence. The sheriff had also testified, “I know as a fact of my own knowledge that the majority of the Mexican population of this county are unable to speak intelligently in English and are unable to read and write the English language.”[36] This, coupled with the jury commissioner’s testimony that he would not have hesitated to put a Mexican American on the venire if he had known one who was qualified, outweighed indirect evidence of discrimination.[37] The court disregarded Norris and instead cited as its authority the earlier Ross v. Texas, 7 S.W. 2d 1078 (1928), which held that the absence of African Americans from venires did not indicate intentional discrimination.
Mexican American attorneys of the late 1930s and early 1940s appealed to higher state courts to invalidate such local interpretations of citizenship law. They were not successful in their initial efforts. Haney López identifies two periods in Mexican American jury discrimination cases. In Ramirez v. Texas, Carrasco v. Texas, Sanchez v. Texas, Bustillos v. Texas, and, I would add, Lugo v. Texas, the appellants argued that the dearth of Mexican American jurors constituted discrimination against the “Mexican race.”[38] The Texas Court of Criminal Appeals ruled in all of these cases except Sanchez that exclusion was not on the basis of race, but due to a lack of qualified candidates. In particular, it speculated that few Mexican Americans read, wrote, and spoke English sufficiently to perform their duties as jurors.[39] The sheriff in Lugo even questioned whether the “Mexicans” on the list were U.S. citizens.[40] In addition to speculation about their educational qualifications, Mexican Americans’ qualifications as Americans were suspect. Perhaps this is why the qualification argument was sustained even after Norris. Unlike blacks, “Mexicans” could be construed as foreigners, not native or belonging to America. However, this argument was increasingly indefensible in the 1940s, as the nation questioned its commitment to racial equality in the incipient phases of the Civil Rights movement.[41] Moreover, in the late 1940s and early 1950s Mexican Americans who served in World War II organized to win veterans’ benefits, highlighting their roles as citizens in protecting the nation. These veterans’ organizations soon began to advocate for equality for all Mexican Americans.[42]
Sanchez v. Texas ushered in a new approach by state courts and, consequently, new rhetorical strategies by the attorneys for Mexican American appellants. In Sanchez, the appellant tried once again to argue that there was discrimination against “the Mexican race” in the jury selection process. This time, the Texas Court of Criminal Appeals decision referred to the appellant as being of “Mexican descent” or “Mexican nationality” and ruled that the “long, continued, and uninterrupted failure to call members of Mexican or Spanish nationalities for jury service did not constitute denial of ‘equal protection of the law’ to one of Mexican descent . . . since nationality and race do not bear the same relation within meaning of constitutional amendment.”[43] For the first time, the appellate court took official notice of Norris, but only to deny that it applied to “nationalities.”[44] While the court also addressed the issue of Mexican Americans’ qualifications, the nationality argument was to become dominant.
In the cases that followed, Salazar v. Texas, Sanchez v. Texas, and Rogers v. Texas, state courts outlined two contentions that were to become the cornerstone of state attorneys’ arguments in Hernandez. These contentions also enabled the courts to avoid ruling on whether Mexican Americans were qualified to be jurors and to circumvent the equal protection issue. First, the justices promulgated the “two classes theory” that the Fourteenth Amendment discusses and applies to only two classes of people–the black and white races. They further claimed that “Mexicans” were part of the white race, and, therefore, as whites, they were not discriminated against when juries were constituted solely of whites. “We said in Sanchez v. State, 243 S.W. 2d 700, that ‘Mexican people . . . are not a separate race but are white people of Spanish descent.’ In contemplation of the Fourteenth Amendment, Mexicans are therefore members of and within the classification of the white race, as distinguished from members of the Negro race.”[45]
Second, they argued that “nationality groups” did not carry the same constitutional meaning as racial groups did, and because “Mexicans” were a nationality group, the equal protection clause did not apply to them. As such, they did not merit protection as a group and were required to prove any bias claims based on individual prejudice in each particular case. Underrepresentation of Mexican Americans on juries was not enough to prove intent to discriminate. Further, no court had applied Norris’s exclusion rule to nationality groups. The Texas Court of Criminal Appeals concluded that the situation had not changed, so the reasoning in Sanchez applied to Hernandez. “In the absence of a holding by the Supreme Court of the United States that nationality and race bear the same relation, within the meaning of the constitutional provision (Fourteenth Amendment) mentioned, we shall continue to hold that (given the statue was obeyed) in the absence of proof showing express discrimination by administrators of the law, a jury so selected in accordance therewith is valid.”[46]
The court concluded that Mexican Americans were requesting a special status with privileges that other nationality groups did not have. It feared this could open the floodgates to claims of proportional representation of groups on juries. This “would write into the equal protection clause proportional representation not only of races, but of nationalities.”[47] Further, it would provide Mexicans as a nationality group within the white race with special status and privileges to which other whites were not entitled. This would deny other whites equal protection. “It is apparent, therefore, that appellant seeks to have this court recognize and classify Mexicans as a special class within the white race and to recognize that special class as entitled to special privileges in the organization of grand and petit juries in this state. To so hold would constitute a violation of equal protection, because it would be extending to members of a class special privileges not accorded to all others of that class similarly situated.”[48]
Because the court did not recognize the validity of Mexican Americans’ claim to protection under the Fourteenth Amendment, it was able to ignore bias against them as a class of people and insist on proof of intentional discrimination by a juror or one of the jury commissioners in each individual case. While recognizing that Mexican Americans may have experienced discrimination, the court denied that the Fourteenth Amendment protected classes of people other than “blacks” and “whites.” As long as members of these two groups were not systematically excluded, the Constitution was not violated. The irony of absorbing Mexican Americans into the category “white” was that it denied them equal protection as a group.
In response to this shift in the court’s language, the attorneys for Mexican American appellants tried several tactics. They first bolstered the “Mexican race” thesis, supplementing it with arguments about nationality discrimination. But then they abandoned the thesis altogether by contending that they experienced discrimination despite being part of the white race. In 1946, two years after Sanchez, attorney M. C. Gonzalez, who had used the “Mexican race” argument in Lugo, replaced it with a Fourteenth Amendment claim based on nationality in Salazar v. Texas. The Texas Court of Criminal Appeals noted this shift and rejected it: “The complaint is made of discrimination against nationality, not race. The Mexican people are of the same race as the grand jurors. We see no question presented for our discussion under the Fourteenth Amendment.”[49] Perhaps in reaction to this decisive rebuff, the attorneys briefly and unsuccessfully returned to the “Mexican race” argument in Bustillos. In the next case, Sanchez v. Texas (1951), attorneys John Herrera and James DeAnda, who would later assist in the Hernandez case, pursued a dual strategy. They argued both that Mexican Americans were a race and that they were treated as a separate class.[50] The Texas Court of Criminal Appeals stated angrily, “Appellant has filed quite an exhaustive brief on the subject in which he discusses decisions of other jurisdictions which, either intentionally or loosely, refer to Mexican people as a different race. They are not a separate race but are white people of Spanish descent, as has often been said by this court. We find no ground for discussing this further.”[51] Rogers v. State, the last case before Hernandez, relied on the same arguments, which, again, were rejected. Finally, the attorneys for Hernandez formulated a new argument. They contended that Mexican Americans were members of the white race who were treated like “a class apart” and experienced discrimination in violation of the Fourteenth Amendment, which protected whites (including Mexicans), as well as blacks, from unequal treatment.
The Hernandez Case
Pete Hernandez was indicted in September 1951 for shooting Joe Espinosa.[52] His lawyers filed a motion to quash the indictment, objecting to the selection of both the grand jury commissioners and the petit jury on the grounds that it violated the equal protection and due process clauses of the Fourteenth Amendment. No Mexican American had been on a jury in Jackson County for at least twenty-five years. In addition, there were none on the list of talesmen used in selecting the jury in this case, despite the fact that there were Mexican Americans who met all of the qualifications.[53] The motion to grant a new trial was denied, as was the appeal to the Texas Court of Criminal Appeals. Carlos Cadena, Pete Hernandez’s main lawyer, appealed to the U.S. Supreme Court.[54]
Cadena moved to quash Hernandez’s indictment because “persons of his national origin” were “intentionally, arbitrarily and systematically” excluded from the jury selection process in Jackson County, thus denying him an impartial jury of his peers. Cadena’s use of the phrase “national origin” is significant. The expressions used to refer to Mexican Americans by attorneys for the state of Texas on the one hand, and by Cadena on the other, were central to establishing the terms of citizenship for Mexican Americans. This dispute over terminology was more than a matter of linguistic interest. Rather, such conceptual struggles had material consequences. In common usage, words like “race,” “nationality,” and “ancestry” were used interchangeably, and “white” was understood to designate non-Mexican, non-black persons. Indeed, Mexican Americans’ very existence as “in-between” black and white challenged the fixity of these concepts. In turn, the instability of the meaning of “white” left it open to challenge by Cadena. The Hernandez case hinged on clarification of these terms and the meanings they carried within the Fourteenth Amendment. Two key issues in the case centered around the definition of terms: whether Mexican Americans were whites, or were a separate race, and whether race and nationality could be construed similarly under the auspices of the Fourteenth Amendment.
Are Mexican Americans White?
Cadena’s argument was complex. He first showed that in common usage people contrasted “Mexicans and whites,” but not, for example, “Germans and whites.” This suggested that Mexican Americans were considered a separate race and that it was their race, not their ancestry, that was the key to the distinction. He also provided evidence that the state and federal governments distinguished “Mexicans” as a separate category alongside “negroes” and “whites,” and that Mexicans were segregated in schools, restaurants, and public swimming pools as a matter of practice, although not by law.[55] His most dramatic piece of evidence was his personal observation that the courthouse in Jackson County, where the case was originally tried, had one bathroom for whites and one for “Colored Men” that was also labeled “Hombres Aqui” (“Men Here”). Cadena stated that Anglos referred to Mexican Americans as non-white, but he insisted that they were, in fact, white. It was only because of the way Mexican Americans were treated that they could be considered a distinct class. Anglos’ mistaken perception of “Mexicans” as a race constructed a false distinction, but one that had real effects on Mexican Americans’ rights. He noted, “People of his national origin or class are . . . considered members of a distinct race, separate and apart from the other citizens of Jackson County,” implying that this was false. He blamed this on the U.S.-Mexico war, which had “aroused antagonisms” so that “‘Mexican’ became a term of opprobrium,” and this “led to the establishment of a status for ‘Mexican’ like that assigned by the dominant group to the Negro.”[56]
Cadena then entered the dispute over whether Mexicans were a “race,” a “nationality,” or both. This issue was particularly difficult because in prior decades “race” and “nationality” had been synonymous. But in the 1910s and 1920s, the equation of race and nationality was in flux. As Mae Ngai so cogently describes, nationality-based identities and racial identity decoupled for European immigrants so that they could be both ethnically German and racially white. But those immigrants we recognize today as non-whites experienced the racialization of their national origins.[57] According to Haney López, this shift for Mexican Americans began as early as the 1840s and 1850s, at the time of the battle for Texas independence and the U.S.-Mexico war. Before this, he claims, persons of Mexican nationality in the U.S. could be identified as white, black, or Indian. The racialization of Mexicans deepened considerably in the early decades of the twentieth century, as the nation grappled with the wave of new immigrants. Once racialized as “Mexicans,” their ethnic characteristics became reified and naturalized as immutable racial ones. In contrast, “Among whites, racial identity (whiteness) and ethnic identity are distinct . . . forms of consciousness.”[58]
Cadena was fighting to decouple Mexican Americans’ national ancestry from race in the hope of following in the footsteps of Germans and other “white ethnics.” He preferred to use the term “national origin” (by which he meant ancestry) in contrast to “race,” but argued that the two were equivalent for the purposes of the Fourteenth Amendment. In an appendix to his U.S. Supreme Court brief entitled “Status of Persons of Mexican Descent in Texas,” he described “natio-racial distinctions” that were used by the state to differentiate people of Mexican descent from other whites. For example, the federal census bureau compiled statistics on “Spanish speaking persons,” the category “Mexican” was used by the Selective Service in World War II, and the state of Texas also treated them as “a class apart” in studies by the Texas Department of Health. Since he did not want to admit that Anglos were correct in their categorization of Mexican Americans as non-white, he relied on the term “national origin” to explain the distinction. For example, he referred to “persons of Mexican descent” and “other white persons” in the same sentence, clearly distinguishing ancestry from race.[59]
Mexican Americans’ racial “in-betweenness” prevented them from fully assimilating into whiteness. Instead, they paired their rejection of racial minority status with an embrace of the notion that they constituted another white race. This was a cornerstone of their civil rights strategy. In fighting to secure quality education for their children in Independent School District v. Salvatierra, Mexican American activists chose to use the argument that they were “another white race” and therefore could not legally be confined to a separate (and unequal) education as blacks were. This was the first case to use the phrase “other white race” in reference to people of Mexican descent.[60] While the counsel for the plaintiffs introduced the term, the court adopted it, holding, “school authorities have no power to arbitrarily segregate Mexican children, assign them to separate schools, and exclude them from schools maintained for children of other white races, merely or solely because they are Mexicans.”[61] This case used “race” as a synonym for “nationality,” grouping Mexicans with Czechs, Germans, and other “nationality groups” who were simultaneously recognized as white.
By adopting this language, Mexican Americans were able to distinguish themselves from less desirable groups (such as blacks, Indians, and Chinese) in order to claim inclusion and equality as white American citizens. In 1931 Paul Taylor, a Berkeley social scientist, concluded that although Mexican Americans initially befriended blacks in Texas, they “have been moved toward ‘Americanization’ through their desire to protect, and also recently, to enhance, their own social position. In order to prove their American allegiance, Mexican-Americans proclaim upon occasion not only their patriotic military service, but their adoption of the race attitudes of the local white community, in so far as they apply to the black race beneath them.”[62]
The “other white race” strategy implicitly acknowledged variations in skin color, while maintaining that racially and culturally Mexican Americans were white and assimilable. The strategy was an attempt to locate themselves on a racial spectrum that allowed for a broader definition of white, yet preserved and reinforced the black/white dichotomy. By doing so, Mexican Americans identified themselves as similar to other national origin groups among whites. They were acknowledging national origin or ethnic difference while claiming whiteness. It was their whiteness that made them assimilable. Their similarity to other whites outweighed any perceived cultural differences, especially when compared to the black antithesis. Mexican Americans used Anglos’ attachment to the dichotomous definition of race as black or white to their advantage in making their claims to citizenship and American identity and to a more inclusive definition of whiteness.
Yet the argument that Mexican Americans were white was more than just a strategy used to gain easier access to the legal privileges and material benefits connected to whiteness. It was also psychologically important to them to distinguish themselves from blacks. As Roediger argues, immigrants whose racial status was “in-between” black and white gained a sense of higher status by distancing themselves from blacks. For example, in fighting against their classification as a separate race for the first (and last) time in the 1930 census, one advocate suggested that Mexican Americans could be categorized as “other White-Mexican,” if necessary, but not as “colored” because this “naturally causes the most violent feelings.”[63]
Mexican Americans rejected the use of the term “Mexican” to designate a race because it marked them as separate from and inferior to Anglos. In addition many objected to being grouped with blacks. This attitude transcended class lines. Taylor observed the irony of an Indian-looking “Mexican” cotton picker expressing a common sentiment about blacks: “Negroes and Mexicans do not mix. It does not look right to see Mexicans and Negroes together. Their color is different. They are black and we are white. It is all right for Americans and Mexicans to mix. We are both of the white race.”[64] Instead, Mexican Americans relied on their ambiguous position in the racial hierarchy–and Anglos’ dichotomous treatment of race as either black or white–to self-identify as white. In fact, some Mexican Americans found the argument used in the Hernandez case controversial because it suggested that their civil status was analogous to blacks’ and it implicitly placed them on the same social level as blacks. In a monograph celebrating the Hernandez victory, Cadena assured his audience, “It must be remembered that this decision is based strictly on a question of national origin–not race. Those of Mexican descent who decry it as classifying ‘our people’ as non-white should keep this in mind.”[65]
Attorneys for the state of Texas agreed that Mexicans were white, but only to undermine Hernandez’s claim of discrimination. They argued that Mexican Americans were white and lower courts concurred: “Mexicans are white people . . . so long as they are so treated, the guarantee of equal protection has been accorded to them.”[66] Lawyers for the state then reasoned that Hernandez had an impartial jury of his peers, composed of members of his race. That is, “Since . . . persons of Mexican descent were members of the white race, and since white Anglos sat on all juries, ‘Mexicans’ had no cause for complaint.”[67] The most common term state attorneys used in their brief to refer to “Mexicans” as a distinct group was “nationality.” They conspicuously avoided the term “race” unless declaring that “Mexicans” were white. This enabled them to discuss “Mexicans” as a distinct group, while asserting that they were part of the white race. The choice of the term “nationality” was significant because it simultaneously insisted that “Mexicans” were not of another race and marked them as different from whites, whose nationality was presumed to be American and whose ancestry was irrelevant for legal purposes. Nationality displaced the language of race by obscuring its operation. It allowed the attorneys to include Mexican Americans by ignoring real differences in treatment and yet exclude them on the basis of their purported racial identity to whites. Haney López comments that the state attorneys’ assertions of sameness “reify the essential racial difference ethnic language purports to deny.”[68] At other times, the attorneys modified their word choice and referred to Mexican Americans as being of “Mexican nationality.” This not only served to distance Mexican Americans racially, but also threw into question their true citizenship status and their very inclusion in the American polity. This conflation of the alien with the citizen betrays the common wisdom that Mexicans Americans are forever foreigners, alien to American national identity. Cadena astutely noted this, complaining, “The use of the term ‘nationality’ by the Texas court is questionable usage. Petitioner does not contend that Mexican citizens have the right to sit on Texas juries. The use of the term ‘Mexicans’ is also incorrect from the point of view of citizenship.”[69] At one point, state attorneys corrected their usage and employed the awkward clause “of Latin American origin as per names.” However, they exposed their common understanding of “Mexican” as a racial category when they commented that the use of surnames was insufficient evidence to indicate the exclusion of “persons of Mexican or Latin American blood” from jury service.[70] That is, there may have been “Mexicans” (defined racially by “blood”) who had “American” surnames. Here, they inadvertently revealed their adherence to the racializing notion that any amount of non-white “blood” marks individuals as part of the (supposedly) inferior race. Although often used metaphorically, the term “blood” is rooted in assumptions about unalterable biological heritage. In treating nationality as conceptually similar to race-as immutable and inherited–they showed that it was Mexican Americans’ racial status, not their status as citizens or peers, that was at issue.
Although state attorneys insisted that Mexicans were “white people of Spanish descent,” they often lapsed into treating Mexicans as a different race, while using the term “nationality.” For example, their brief to the U.S. Supreme Court suggested that Hernandez could only make an equal protection claim if the victim were of a different “national origin.” They argued that the record “shows both the murderer and the murdered to be of the Latin American origin as per names and that no denial of equal protection of law is shown by the record in this case, as might be otherwise vaguely inferred if the victim had been of some other national origin.”[71] This implies that the outcome was fair because the jury had no interest in punishing Hernandez based on prejudice. However, if the victim of the crime had been white, Hernandez would have had a more legitimate (though still “vague”) claim of discrimination. Presumably, if there was no bias against Mexican Americans in the selection procedure, and Hernandez was tried by an impartial jury of his peers, there should be no distinctions based on any categories, and therefore no difference in outcome; his Fourteenth Amendment claim was aimed at securing equal application of the rules governing jury selection. The state’s attorneys asked the Court to overlook the significance of race while simultaneously acknowledging its power and the possibility of discrimination. This demonstrates that for “Mexicans” the distinction between race and nationality had collapsed and that the state obscured this through the more neutral language of nationality. Clearly, “national origin” served as a proxy for “race” here.
Is “Nationality” Encompassed by the Fourteenth Amendment?
Having made a case that Mexicans were a nationality group within the white race, Cadena then tried to convince the court that nationality groups should be treated the same as racial groups under the aegis of the Fourteenth Amendment. His key argument was that failure to apply Norris’s “rule of exclusion” to Mexican Americans violated the due process and equal protection clauses because it denied them a way of proving discrimination that was available to blacks. Instead, Texas courts had held Hernandez and all those of Mexican origin to the higher standard of proving that discrimination was committed expressly against them as individuals, requiring them to show intent to discriminate in each case. Cadena commented, “persons of Mexican descent must bear this onerous burden solely because they are not Negroes; i.e., because they are white.”[72] He then retreated from contrasting “Mexicans” and blacks and returned to contrasting whites (including Mexicans) and blacks. He asserted that the Fourteenth Amendment prohibits discrimination against both blacks and whites, and that as whites, Mexican Americans should be entitled to equal protection. Thus, while partially refuting the lower court’s “two classes” theory by contending that Mexican Americans were treated as a distinct class that should be protected under the Fourteenth Amendment, he then redefined the category “white” to incorporate Mexican Americans and invoked the two class theory in defense of Hernandez. He noted, “it does not follow that the Amendment sanctions discrimination against white persons by rules of evidence which imposes (sic) upon them a burden more onerous than that which is placed on Negroes.”[73] In Cadena’s view, the category “white” was not as undifferentiated as the state of Texas assumed. He did not, however, challenge the fixity of the category “black.” Furthermore, he argued that the lower courts misinterpreted the meaning of the amendment when they denied that it applied to nationality or other groups refused representation on juries. In fact, in Strauder v. West Virginia, the U.S. Supreme Court noted that the amendment was applicable to classes based on characteristics other than race or color, although it had not yet ruled on nationality groups.[74]
The Supreme Court agreed with Cadena that exclusion on the basis of distinctions other than race can deprive a group of equal protection. It rejected the state court’s two classes theory because community prejudices change and new groups may need protection. The decision, written by Chief Justice Warren, found that: “When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated.”[75] The justices also accepted the proof Cadena offered that people of Mexican descent were treated as a distinct class. Once this was established, they recognized a pattern of de facto discrimination similar to that in Norris, even though, unlike Norris, the rules governing jury selection were ostensibly neutral. They rejected the state attorneys’ claim that the jury commissioners merely chose those best qualified for jury service. The justices wrote, “It taxes our credulity to say that mere chance resulted in there being no members of this class among the over six thousand jurors called in the past 25 years.”[76] They also rejected the state attorneys’ claim that allowing national origin claims of discrimination would lead to claims for proportional representation of groups on juries. They noted that Hernandez’s lawyers did not make this argument and that “his only claim is the right to be indicted and tried by juries from which all members of his class are not systematically excluded.”[77]
The Supreme Court, however, declined to rule on whether Mexican Americans constituted a race. It is significant that the Court consistently used the term “class” (meaning “category”), rather than “race,” to refer to Mexican Americans. While the case has been interpreted to extend the equal protection clause to national origin groups, the Court did not define people of Mexican descent as such. It merely stated that in Jackson County, Texas, Mexican Americans were treated as “a separate class” and that the equal protection clause could cover groups that have “other differences from the community norm” when those differences lead to discriminatory treatment of the class. Pointedly, the Court did not define what constituted a nationality group. In allowing Mexican Americans to remain “in-between” racial categories, it perpetuated the Gordian knot of being Mexican American: legally white, yet treated as non-white and subject to the disabilities connected with this status, they were not guaranteed recourse to the laws protecting racial minorities.
Citizenship and Racial Identity
The Supreme Court’s silence is not surprising. The law as a whole was curiously silent or ambiguous regarding Mexican Americans’ position in the racial order.[78] Informal social rules often accomplished the same end as formal, legal prohibitions. Segregation of Mexican ancestry children, for example, was a common practice through the 1940s, despite the fact that Texas law ordered segregation only of “colored” children, defined as anyone descended from a Negro.[79] But unlike blacks and some Asian groups, people of Mexican descent were placed in the position of not being assigned a definitive legal racial identity; they were classified as white by census officials, yet identified as a distinct population alongside other racial categories by state and federal agencies. Other “in-between peoples” (such as Armenians and Asian Indians) who challenged their denial of naturalization in the courts were ruled to be non-white.[80] Yet the legal classification of Mexicans, Italians, and other southern and eastern European immigrants as white was accompanied by the tacit recognition that many, in fact, were not white, according to common wisdom. Mexican Americans did not easily fit within the dichotomous racial categories that established and maintained whiteness. Recognizing or naming their difference as something other than white or black would undermine the inflexible discipline of a segregated world. “In-between peoples” destabilized the concept of racial purity that justified Jim Crow and threatened its social order. Since they clearly were not black or belonging to a race proscribed by law, Mexican Americans became white by default. The lower courts declared them juridically white, ignoring the consequences of perceived racial difference and local discriminatory treatment. While the Supreme Court acknowledged their experience of discrimination, it accepted this erasure of race, substituting a more nebulous and transitory notion of difference. Thus, the rigidity of “race” was at times advantageous and at times a serious disability to Mexican Americans’ citizenship claims. While “Mexican” was not mentioned as a racial category by laws such as antimiscegenation statutes, neither was it recognized as a category encompassing a group of people in need of protection.[81]
As a group “Mexicans” are problematic for theories of race, and particularly for whiteness, because they demonstrate that race is not solely about skin color. Rather, whiteness signifies a complex of social meanings and statuses.[82] It can include class, social power (determined by factors such as ancestry, education, and community influence), and even religion and gender. Whiteness does not carry a stable set of meanings, but always refers to social status relative to other groups. Mexican Americans, for example, could assert some of the privileges of whiteness because they were not black. Thus, it is not curious that Cadena would claim, “While legally white (anthropologically he is predominantly Indian) frequently the term ‘white’ excludes the ‘Mexican’ and is reserved for the rest of the non-Negro population.”[83] Here whiteness functions on at least four levels: legal recognition, scientific racial classification, social status, and racial “common knowledge” defined in a relational context. The latter two categories of racial classification are informal ones, based on how people apprehend their changing social world. For example, Cadeña recognizes that “Mexicans” are excluded from the category “white” and are not acknowledged as being social equals with Anglos. Further, “Mexican” is defined in comparison to what it is not: neither white, nor black. (He does not mention Asians because they did not play a large role in the social structuring of his world.) Because race is relationally constructed, its meaning and very contours change according to the context in which it is situated. The unsuccessful effort to classify “Mexicans” as a race provides a compelling argument for “an understanding of races, not as absolute categories, but as comparative taxonomies of relative difference. Races do not exist as abstract categories, but only as amalgamations of people standing in complex relationships with each other.”[84]
The one court case besides Hernandez that addressed Mexicans’ racial classification also avoided categorizing them racially, even though determining their race was precisely the question before the court. In In re Rodriguez, the court grappled with the question of whether Ricardo Rodriguez, a citizen of Mexico who was “Indian” in appearance, was eligible to be naturalized, given that statute provided only for the naturalization of free whites and Africans. The 1848 Treaty of Guadalupe Hidalgo, however, contained provisions that guaranteed the automatic conferral of citizenship on the residents of the ceded territory unless they affirmatively chose to remain Mexican citizens by declaring themselves thus or removing themselves from the U.S. within one year.[85] It thus provided for mass naturalization of former Mexican nationals regardless of their perceived race, in spite of the naturalization statute. Did this set a precedent for the naturalization of Mexican citizens? Several briefs were solicited by the court, offering various interpretations of the racial import of the law. One brief by Floyd McGown argued that most Mexicans racially were Indians, and since Indians were not eligible for naturalization, neither were Mexicans. Further, Congress inserted the word “white” in the statute to exclude all but Caucasians, and common usage of “white” would exclude Mexicans.[86] Another brief by A. J. Evans reasoned similarly, but also offered the theory that Indians originated in Asia, traveling to America over a chain of islands, and that therefore Mexicans were of the Mongolian race, and like the Chinese, were ineligible for naturalization.[87] A third brief by T. J. McMinn also argued that Mexicans were Indians and therefore ineligible, but offered a stronger condemnation of their ability to be citizens. It claimed that the Texas revolution “was fought to get rid of the ‘Mexican people,’ who, in the declaration of independence, were declared to be ‘unfit to be free, and incapable of self-government.'”[88]
A fourth, more complex, brief by T. M. Paschal addressed the argument that prior cases (In re Ah Yup, on Chinese exclusion, and In re Camille, on the exclusion of a half-Indian, half-white man from Canada) were not parallel to the Rodriguez case and were poorly decided. He then offered a reading of Elk v. Wilkins, arguing that Elk, an American Indian, was denied naturalization not because of his race, but because the state, within its sovereign rights and in accordance with a treaty, had not agreed to accept him as a citizen, despite his severance of relations with his tribe. Paschal then asked if American Indians could, in theory, be naturalized, why couldn’t Mexican Indians? Finally, he showed that collective naturalization through treaty or conquest was not uncommon historically, and had incorporated large numbers of non-whites and non-blacks.[89]
District Judge T. S. Maxey based his decision on the prior practices of the nation, rather than by settling the race question. He stated:
It is not deemed material to inquire to what race ethnological writers would assign the present applicant. If the strict scientific classification of the anthropologist should be adopted, he would probably not be classed as white. It is certain he is not an African, nor a person of African descent. According to his own statement, he is a “pure-blooded Mexican,” bearing no relation to the Aztecs or original races of Mexico. Being, then, a citizen of Mexico, may he be naturalized pursuant to the laws of congress?[90]
Maxey rejected prior cases as too dissimilar to Rodriguez’s situation. He noted that not only had Mexicans been incorporated by treaty through collective naturalization and through the admission of western states and territories to the U.S., but that anyone of Mexican descent born in the U.S. enjoyed birthright citizenship despite his racial classification. In addition to collective naturalization, the U.S. had admitted the possibility of individual naturalization of Mexicans by treaty between 1868 and 1882. He concluded, “When all the foregoing laws, treaties, and constitutional provisions are considered, which either affirmatively confer the rights of citizenship upon Mexicans, or tacitly recognize in them the right of individual naturalization, the conclusion forces itself upon the mind that citizens of Mexico are eligible to American citizenship.” Further, “whatever may be the status of the applicant viewed solely from the standpoint of the ethnologist, he is embraced within the spirit and intent of our laws upon naturalization.”[91]
Public consensus held that Mexican Americans were a “mixed race,” regardless of their legal classification as white, but there was no consensus about what this should mean for their status as citizens. Could they responsibly participate in the democratic process? Should they be accorded the same status as whites? Or, like blacks and women, should their participation as citizens be curtailed? Their mode of incorporation–the consequence of conquest–marked their citizenship as illegitimate and cast doubt on their ability to participate in the democratic process as republican citizens.[92]
Mexican Americans’ ambiguous status in the nation’s racial and social orders shaped their strategies to gain full inclusion in the polity. Usually they could argue that, as white people, they were being unfairly excluded from schooling, housing, or public facilities. The Hernandez case posed a different dilemma. Because their exclusion in Hernandez was based on the “fact” of their whiteness, they had to admit that they were treated like an inferior racial group in order to claim the protection of the Fourteenth Amendment. Yet they did not want to admit to being the same as blacks. In an era of formally sanctioned segregation, this was far too risky.[93]
In addition, many Mexican Americans did not believe that people of Mexican ancestry were non-white. For example, Gus Garcia, one of Hernandez’s lawyers, was convinced that Anglo ignorance was the only obstacle to overcome before Mexican Americans achieved social and political equality.[94] Because he viewed himself as a member of an “ethnic group” that was part of the white race, he confidently predicted, “We are not passing through anything different from that endured at one time or another by other unassimilated population groups. . . . The point to remember is this: all these other ethnic and religious groups have managed to overcome the same obstacles now besetting our path. . . .”[95] His choice of comparison to “ethnic and religious groups,” rather than to racial ones, reveals his belief in the whiteness and assimilability of Mexican Americans. He clearly believed in the promise of the melting pot.[96]
In an astute commentary on the assimilation of white ethnic groups in America, Roediger argues that Americanization involved not just acceptance as Americans, but acceptance as whites.[97] This usually was accomplished by allying one’s group with whites against another group characterized as non-white and threatening to white privilege. Like other ethnic groups, Mexican Americans sought to be accepted and were willing to enter this “Faustian pact with whiteness.”[98] For example, LULAC’s mission was to achieve this model of ethnic assimilation. Its main activities were Americanization programs and educating Mexican Americans to be conscientious citizens, but it also supported restrictions on immigration.[99] It even expelled one member for marrying a black woman.[100] LULAC members also attempted to distinguish themselves from lower class Mexican immigrants. It can be argued that the distinction between “American” and “white” disintegrates. If one is white, one is American, as whiteness is the norm. White identity first defines American identity and then is, itself, obscured. Hale summarizes, “This erasure (of whiteness) enables many to fuse their absence of racial being with the nation, making whiteness their unspoken but deepest sense of what it means to be an American.”[101] Thus, LULAC members’ campaign to be recognized as Americans was unlikely to be successful because one first must be recognized as white.
Citizenship as Social Standing
The fear that claiming discrimination meant ceding whiteness was partially rooted in Mexican Americans’ anxiety that their social status would be diminished. Political theorist Judith Shklar argues that the desire for equal citizenship is rooted less in a desire to participate in civic activities and more in a yearning for inclusion and recognition, or “social standing.” She comments, “exclusion from public life is a denial of . . . civic personality and social dignity.”[102] Her thesis that social standing is an integral element of citizenship is convincing. In Hernandez, the Texas court manipulated this combination of anxiety and desire and simultaneously raised the specter of reverse discrimination, with whites as the victims of unequal treatment. It commented:
We said in Sanchez v. State, 243 S.W. 2d 700, that “Mexican people are not a separate race but are white people of Spanish descent. . . .” In so far as we are advised, no member of the Mexican nationality challenges that statement. Appellant does not here do so. It is apparent, therefore, that appellant seeks to have this court recognize and classify Mexicans as a special class within the white race and to recognize that special class as entitled to special privileges in the organization of grand and petit juries in this state. To so hold would constitute a violation of equal protection, because it would be extending to members of a class special privileges not accorded to all others of that class similarly situated.[103]
The court knew it would be anathema to Mexican Americans to claim that they were not white because of the social stigma and civic disabilities attached to this status. It employed Mexican Americans’ reluctance to distance themselves from whiteness to argue that they were asking for special privileges.
Mexican Americans did not wish to challenge their status as whites because they recognized the value that inheres in those possessing whiteness.[104] Cadena faced a dilemma: if he claimed racial discrimination, he would be ceding his claim to whiteness, thus providing Anglos with a rationale to treat Mexican Americans as inferior. In an era of segregation, the consequences of this threat were too real and too high. The value of whiteness, after all, resides in its exclusivity. The state court understood the implications for Mexican Americans of abandoning their claim to whiteness. Thus it was able to use this vulnerability to protect the privilege of “true” whites in the legal arena by including Mexican Americans as white. Including them as white did not upset the meaning or power of whiteness because it preserved Anglo dominance and control over the legal system.
Cadena encouraged this interpretation of Mexican Americans’ role in upholding white privilege by claiming that allowing them into whiteness would not undermine it. The “other white” strategy enabled him to align Mexican Americans with Anglos. He tried to convey that Anglos’ rights were not threatened by permitting Mexican Americas to serve on juries, while simultaneously emphasizing that whiteness was valuable property to which they were entitled. He insisted that he was not asking for special privileges. Rather, he argued, Mexican Americans were denied access to jury service because of their “national origin” despite being white. He highlighted the absurdity of the state court’s suggestion that this would deny equal protection to non-Mexican whites. “Just what white citizens of Jackson county does this Court have in mind when it speaks of all others of that class similarly situated who do not have the right to sit on juries?”[105] Non-Mexican whites already sat on juries; it was only people of Mexican descent within the white race who were wrongly denied this opportunity.
Cadena puzzled over the difficulties he and others experienced in challenging what he called the “last bastion” of civil rights violations. He asked, “What, then, is peculiar about discrimination in the organization of juries that this court can read into the Fourteenth Amendment a limitation which the Supreme Court has stated in the Strauder case, is not there? . . . What is so sacred about discrimination in the organization of juries that prompts this court to shield it against the reach of the Fourteenth Amendment?”[106]
This is a good question. Jury service is one of the fundamental elements of citizenship. If voting is the most basic political right, the rights to be eligible to serve on juries and to be tried by a jury of one’s peers are central to notions of fairness in judicial procedure and civil rights. Jury service has been treated by the court as one of the incidents of citizenship and further, as one that identifies true republican citizens–those trusted to participate fully in the governance of the polity. The idea that people from the community can be trusted to exercise sound judgment is part of the liberal notion that people constitute the government. It is also part of the republican notion that community standards are determined through participation, that is, through government by the people. Jury service reflects a notion of citizenship as a collection of civil and political rights and obligations, as well as of citizenship as social standing. Earlier, juries were limited to those most respected in the community. In this case, the community did not consider Mexican Americans to be equal members, deemed both competent and fit to pass judgment on others, while the Supreme Court defined Mexican Americans legally as white, and as deserving all the rights of citizens.
The answer to Cadena’s question involves the acceptance of the Other as a peer, or social equal. While voting requirements varied–historically, in some states women and even aliens who simply declared their intent to become citizens were allowed to vote–jury service has not been so expansive.[107] Jury service is a mark of belonging. It is based on a sense of community, of responsibility for the welfare of the community, and of responsibility as citizens to uphold one another’s rights and security. It recognizes citizens not only as full members of the community, but as moral equals. In this sense, it is more fundamental to citizenship than voting. It is also more threatening to notions of who constitutes the community. While voting is an act of judgment, majority will is not threatened by the vote of a minority. But on juries, the vote of one person has a greater impact on the outcome.
Judging criminal or civil wrongs is also far more intimate than voting. It is intimate in several senses having to do with social distance and social space. First, it requires literally being in close contact and sharing physical space–the jury box–with others. Because segregation was a common practice in Texas, Anglos did not have to come into contact with Mexican Americans in daily life, which exacerbated the sense that they were not part of the community. Second, when Anglos did come into contact with Mexican Americans, it was often for work purposes, in which the white person was in a position of authority. But in a jury setting, every person’s opinion carries equal weight, and the objection of one person can determine the outcome. The notion of treating Mexican Americans as peers, with the respect that the term implies, was unthinkable for many whites. Third, jury service is intimate because it involves the act of judgment. Mexican American participation on juries would require white jurors to view them as moral equals, whose personal convictions and evaluations were worthy of consideration. Plus, because jury service entails the power to punish, this implies that those who judge are morally superior to those who are judged to be guilty. Felons can not be jurors. The power to punish sets up a paternal relationship between the juror and the defendant, which contradicted the sense of superiority over “Mexicans” that many Anglos felt. And it upended the paternal relations of authority that had been used to maintain Anglo power over the Mexican origin population. Anglos’ reluctance to include Mexican Americans highlights the importance of the composition of juries–and the identities of those absent from them–in revealing the racialized nature of America’s national self-conception. Juan Perea comments in regard to a recent case about Spanish-speaking venirepersons, “by denying them the equal protection right to be visible, responsible jurors, a right routinely associated with whites, the Court perpetuates and encourages the view that Latinos do not really belong within the community that exercises power on juries. By allowing their exclusion from the community of jury decision-makers, the Court also reinforces the outsider status of Latinos.”[108]
The declaration that Mexican Americas were juridically white was employed as a tactic by attorneys for the state of Texas to uphold the status of whites in several ways. First, the state court’s insistence that Mexican Americans were white, despite evidence of persistent discrimination, can be read as an exercise in dominant group definition of subordinate group identity. Those who control the definition of social groupings structure legal relations among groups by assigning privileges to some, and not to others. The judicial system’s recognition of groups has often been contingent on the protection of white dominance via “neutral” principles. In this case, in the absence of a separate racial classification for people of Mexican ancestry, the court adhered to the letter of the law and declared that treating them differently from whites would be unfair to other whites. The use of the “other white” strategy was Mexican Americans’ attempt to work within the parameters of Anglos’ definition of them; Cadena manipulated the definition to assert access to rights.
Second, the power to define reality by encompassing Mexican Americans within whiteness protected the control that Anglos exercised over courtroom judgments. By defining Mexican Americans as whites, state attorneys ensured that jury commissioners would not have to provide for token representation. The consequences of the state court’s decision would have been to enshrine the status quo, placing Mexican Americans beyond the protection of the Constitution. That is, becoming juridically white would have acted as a barrier to full acceptance of Mexican Americans as whites and as Americans. As insiders in whiteness, Mexican Americans had no basis from which to challenge Anglos’ perceptions or the structure of power that artfully excluded them from participation. Under the guise of neutral rules and formal equality, white privilege to judge others, but not be judged by Others, would be upheld. White control over the judicial system would have remained intact.
Third, underlying the state attorneys’ stance is the unconscious assumption that an all-white jury can be and will be impartial, and that selection procedures that are designed by the white majority are also neutral. It masks white dominance by presenting white preferences, distinctions, and choices as unbiased. Historically, this has proved to be untrue. Selection procedures have ranged from the obviously exclusionary, such as using voter rolls in the Jim Crow south and key man or blue ribbon juries, which selected only the most exemplary citizens (often defined racially), to facially neutral rules that have discriminatory impact.[109] In Hernandez Mexican Americans were not represented on juries for ostensibly race-neutral reasons, yet they still were marked as different by the state courts and attorneys. Because Cadena showed that such distinctions were commonly made, the Supreme Court concluded that an all-white jury pool in such a context “bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner.”[110] Yet, the Supreme Court assumed that neutrality could be achieved through procedures designed by those in power.[111]
By controlling the definition of whiteness, Anglos defined and maintained their social status and their control of the judicial process. An all-white jury box was powerful visual confirmation that the Anglo population exclusively held the power to judge and to punish. Thus, defining Mexican Americans as within the boundaries of whiteness was not an exercise in extending equality, but rather was a strategy of domination. Anglos’ power remained intact, as it was easy to exclude Mexican Americans on the basis of qualifications. Boundary crossing–that is, allowing Mexican Americans to be white–in actuality served to police the boundaries of power. Whites symbolically subverted the color line only in order to strengthen it. Indeed, little changed in terms of the representation of Mexican Americans on juries, as the U.S. Commission on Civil Rights reported in 1970. Several lawyers the commission interviewed that year could not recall a single case in which Mexican Americans actually served on a jury.[112] Mexican Americans’ citizenship status and ambiguous identity as white and as Americans was largely unchanged by Hernandez.
Conclusion
Today, the composition of juries is once again a matter of controversy. While most citizens think of it as a “duty,” rather than as a right or privilege, it remains significant as an indicator of the boundaries of community and of racial mistrust. For example, in Hernandez v. New York the U.S. Supreme Court held that prosecutors may use peremptory challenges to dismiss prospective bilingual jurors in cases in which testimony would be heard in their language. As long as this is not done on the basis of the venirepersons’ race or ethnicity, it is constitutionally permissible. The plurality stated, “Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”[113] The Court’s interpretation relies on a narrow definition of race and of what constitutes racial discrimination. Similar to the early jury cases, the focus is on the thoughts and subjective intentions of the state attorney. The Court noted that the prosecutor offered a reason for the challenges without being prompted to do so, which seemed to demonstrate his good will in the Court’s eyes. As long as he does not make any overtly racist statements, almost any reason for striking a venireperson can be considered race-neutral. Under this standard, the testimony of the jury commissioners in Hernandez v. Texas that they did not intend to discriminate, and instead chose the most qualified to be jurors, would be considered race-neutral.[114] A perceived effort not to discriminate erases any bias and overrides a claim to equal protection. Discrimination is conceived of as individual prejudice, as harm intentionally done by one person to another, and is not seen as unconscious or as structural.[115]
Despite ruling on whether statements could be considered race-neutral (and similar to the earlier Hernandez case), in this recent case the Court set aside the issue of the definition of race. It stated, “In holding that a race-neutral reason for a peremptory challenge means a reason other than race, we do not resolve the more difficult question of the breadth with which the concept of race should be defined for equal protection purposes.” It concluded that the peremptory challenges “may have acted like strikes based on race, but they were not based on race. No matter how closely tied or significantly correlated to race the explanation for a peremptory strike may be, the strike does not implicate the Equal Protection Clause unless it is based on race. That is the distinction between disproportionate effect, which is not sufficient to constitute an equal protection violation, and intentional discrimination, which is.”[116] The Court’s narrow assumptions about race and racial discrimination mean that prosecutors can exclude a class of people so long as they do not specifically mention skin color.
The recent Hernandez case is a logical outcome of the Court’s ambivalence about Latinos’ status as a group. Defined as a class or a nationality group, Latinos have never been treated as a racial group for equal protection purposes.[117] While the two Hernandez cases involve questions that rest on different legal distinctions that can not be addressed in detail here, the parallels between them are striking. In both cases how to classify Latinos, and whether other classifications were being used as proxies for race, were issues. In both cases, the Court set aside the question of definition of race and whether Latinos count as a race. Further, they both implicitly involved whiteness as a standard of neutrality and failed to ask whether notions of colorblindness or neutrality conceal white dominance within the justice system. And both cases suggest that Latinos’ “foreign” characteristics, such as language ability, are problematic in carrying out the duties of citizen-ship. That is, Latinos are undesirable as citizens because somehow they are not fully “American.” Their social standing delimits their participation as citizens. Ultimately, whether exclusion hinges upon race or “nationality,” the significance of exclusion is in the denial of Latinos’ status as full and equal citizens, entrusted to participate in governance of society and recognized as members of the community.
Clare Sheridan is a Senior Administrative Analyst at the School of Social Welfare, University of California, Berkeley. She wishes to thank Gretchen Ritter, Jay Mc-Cullough, Anna Law, and Anne Norton for commenting on previous drafts. The epigraph is from Hirabayashi v. U.S., 320 U.S. 81 (1943), 100.
Notes
1. Strauder v. West Virginia, 100 U.S. 303 (1880) and Carter v. Texas, 177 U.S. 442 (1900).
2. Hernandez v. Texas, 251 S.W. 2d 531 (Tex. Crim. App. 1952), rev’d, 347 U.S. 475 (1954). The appeal rested on an equal protection claim. The Sixth Amendment right to trial by an impartial jury was not incorporated into the Fourteenth Amendment to apply to the states, as well as to the federal level, until Duncan v. Louisiana, 391 U.S. 145 (1968).
3. David Montejano, Anglos and Mexicans in the Making of Texas, 1836-1986 (Austin: University of Texas Press, 1987). For a contemporary account of Mexican Americans’ loss of status and political power in California, see Maria Amparo Ruiz de Burton, The Squatter and the Don, ed., Rosaura Sanchez and Beatrice Pita (Houston: Arte Publico Press, 1992).
4. Linda B. Hall and Don C. Coerver, Revolution on the Border: The United States and Mexico, 1910-1920 (Albuquerque: University of New Mexico Press, 1988). Mark Reisler, By the Sweat of Their Brow: Mexican Immigrant Labor in the United States, 1900-1940 (Westport, Conn.: Greenwood Press, 1976), 152.
5. Note that these figures are from government statistics and do not include the many immigrants who crossed illegally to avoid payment of taxes See Reisler, Sweat of Their Brow, 183, n. 4.
6. Act of May 26, 1924, chap. 190, 43 Stat. 153. This act, targeted at eliminating immigration from southern and eastern Europe, reduced immigration to 2 percent of the nationals resident in the 1890 census and required five years of residence in a western hemisphere nation before immigrating. The bill also required all immigrants to pay a $10 visa fee, in addition to the existing $8 head tax, and to comply with the provisions of prior statutes, including being literate and not likely to become a public charge.
7. Act of March 26, 1790, chap. III, 1, 1 Stat. 103 and Naturalization Act of July 14, 1870 (16 Statutes-at-Large 254).
8. See also Jose Amaro Hernandez, Mutual Aid for Survival: The Case of the Mexican American (Malabar, Fla.: Robert E. Krieger Publishing Co., 1983), 73.
9. Paul S. Taylor, An American-Mexican Frontier: Nueces County, Texas (Chapel Hill: University of North Carolina Press, 1934), 247.
10. See Abraham Hoffman, Unwanted Mexican Americans in the Great Depression: Repatriation Pressures, 1929-1939 (Tucson: University of Arizona Press, 1974).
11. Sanchez Papers (George I), 1982-1972. “Letter from Texas Civil Rights Fund to Modesto Gomez, LULAC, December 16, 1943,” box 68, folders 4 and 5, entitled Texas Civil Rights Fund 1943 (Benson Latin American Collection, University of Texas at Austin). See Montejano, Anglos and Mexicans, 268, for a discussion of the Good Neighbor Policy.
12. Montejano, Anglos and Mexicans, 268.
13. Norris v. Alabama, 294 U.S. 587 (1935). Sanchez Papers (George I), 1982-1972. “Brief on the Issues Relating to Discrimination on Account of Race in the Selection of Grand and Petit Juries,” box 30, folder 15, entitled Jury Service 1943 (Benson Latin American Collection, University of Texas at Austin).
14. Sanchez Papers (George I), 1982-1972. “Letter from Texas Civil Rights Fund to Robert Marshall Civil Liberties Trust, June 1, 1943,” box 68, folders 4 and 5, entitled Texas Civil Rights Fund 1943 (Benson Latin American Collection, University of Texas at Austin).
15. Westminster School District vs. Mendez, 161 Fed. 2d 774 (1946), Clifton v. Puente, 218 S.W. 2d 272 (1949), Terrell Wells Swimming Pool v. Rodriguez, 182 S.W. 2d 824 (1944). Sanchez v. Texas, 243 S.W. 2d 700 (1951); Rogers v. Texas, 236 S.W. 2d 141 (1951); Bustillos v. Texas, 213 S.W. 2d 837 (1948); Salazar v. Texas, 193 S.W. 2d 211 (1946); Sanchez v. Texas, 181 S.W. 2d 87 (1944); Lugo v. Texas, 124 S.W. 2d 344 (1939); Carrasco v. Texas, 95 S.W. 2d 433 (1936); Ramirez v. Texas, 40 S.W. 2d 138 (1931).
16. “Householder” means the head of a family who rents a room within the county.
17. Sanchez Papers, “Brief,” box 30, folder 15.
18. Hernandez v. Texas, 476.
19. Pauline R. Kibbe, Latin Americans in Texas (Albuquerque: University of New Mexico Press, 1946), 229. This figure does not distinguish between citizens and noncitizens. Mexican Americans were not categorized racially in the census except in 1930, so accurate statistics are difficult to compile.
20. I consciously use the term “right” in regard to jury service By the 1950s, jury service was considered a right of citizenship. The Supreme Court ruled illegitimate the de facto exclusion of African Americans in 1935, upheld this interpretation in several cases in the 1940s, and extended it by stating that defendants had a right to a trial by an impartial jury drawn from a cross-section of the community. See Smith v. Texas, 311 U.S. 128 (1940), Glasser v. U.S., 315 U.S. 60 (1942), Hill v. Texas, 316 U.S. 400 (1942), and Cassell v. Texas, 339 U.S. 282 (1950). Several cases in the 1920s also held that women must have the opportunity to serve on juries. See State v. Walker, 185 N.W. 619 (1921), People v. Barltz, 180 N.W. 423 (1920), and Palmer v. State, 150 N.E. 917 (1926), cited in Gretchen Ritter, “A Jury of her Peers: Citizenship and Women’s Jury Service after the Nineteenth Amendment,” paper presented at the Western Political Science Association, Tucson, Arizona, 1997. Many states automatically granted women an exemption, so their participation rate was not high until the late 1960s. Furthermore, there was a movement by Congress to standardize the qualifications of jurors, eliminate prejudicial exemptions, and increase oversight by the Supreme Court. See Ernest P. Goodman, “Notes and Recent Decisions,” California Law Review 35 (1947): 142-46, and McNabb v. U.S., 318 U.S. 332 (1942).
21. Alonso Perales, El mexico americano y la politica del sur de Texas: comentarios (published by the author, 1931), 11 (my translation).
22. Ibid., 8.
23. Lawyers for the appellant, Gustavo Garcia and Carlos Cadena, printed a summary of the case themselves, A Cotton Picker Finds Justice!: The Saga of the Hernandez Case, ed. Ruben Munguia (n.d., n.p.). Cadena’s part was entitled “Legal Ramifications of the Hernandez Case: A Thumbnail Sketch,” and Garcia’s, “An Informal Report to the People.”
24. Act of March 1, ch. 114, 4, 18 Stat (pt. 3), rev’d, 109 U.S. 3 (1883). In Race, Crime, and the Law (New York: Pantheon Books, 1997), Randall Kennedy notes that only one case, Ex parte Virginia, 100 U.S. 330 (1880), tested this law.
25. Strauder v. West Virginia, 100 U.S. 303 (1880). Ibid., 308. “The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may in other respects be fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority and a stimulus to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others. The right to a trial by jury is guaranteed to every citizen of West Virginia by the Constitution of that State, and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure.” Ibid., 307-8. However, the Court held that states could specify other qualifications for jurors.
26. Virginia v. Rives, 100 U.S. 313 (1880).
27. Neal v. Delaware, 103 U.S. 370 (1881).
28. Carter v. Texas, 177 U.S. 442 (1900). Ibid., 447.
29. Law scholar Benno Schmidt notes that the U.S. Supreme Court only reversed decisions when faced with clear violations of the Sixth Amendment guarantees for a fair trial. Benno C. Schmidt, Jr., “Juries, Jurisdiction, and Race Discrimination: The Lost Promise of Strauder v. West Virginia,” Texas Law Review 61 (1983): 1401-99, 1470. In most cases, appellate courts deferred to the lower courts’ findings of facts, as reviewing evidence did not fall within their jurisdiction.
30. Norris v. Alabama, 588.
31. Impartiality in Norris’s trial was challenged partly because of the extremely prejudicial circumstances of his previous trial, Powell v. Alabama, 287 U.S. 45 (1932), which was reversed by the Supreme Court on due process grounds because effective counsel was not provided. The trials involving Norris attracted much publicity because he was one of the nine “Scottsboro boys” charged with raping two white women.
32. Smith v. Texas, 311 U.S. 128 (1940); Hill v. Texas, 316 U.S. 400 (1942); Cassell v. Texas, 339 U.S. 282 (1950); and Ross v. Texas, 341 U.S. 918 (1951).
33. Juarez v. Texas, 277 S.W. 1091 (1925).
34. Hernandez v. Texas, 478.
35. Lugo v. Texas, 344.
36. Ibid., 348.
37. Ibid., 346.
38. Ian F. Haney López, “Race, Ethnicity, Erasure: The Salience of Race to LatCrit Theory,” University of California Law Review 85 (1997): 1166-70.
39. In Ramirez, for example, the county sheriff and tax collector stated that “he did not think the Mexicans of Menard county were intelligent enough or spoke English well enough or knew enough about the law to make good jurors, besides their customs and ways were different from ours and that for that reason he did not consider them well enough qualified to serve as jurors.” Ramirez v. Texas, 139.
40. Lugo v. Texas, 348.
41. However, “foreignness” has continued to be an element of the racialization of “other non-whites.” See Robert Chang and Andrew Aoki, “Centering the Immigrant in the Inter/ National Imagination,” University of California Law Review 85 (1997): 1395-1447.
42. See, generally, Vernon Allsup, The American G.I. Forum: Origins and Evolution (Austin: Center for Mexican American Studies), 1982.
43. Sanchez v. Texas (1944), 87. The case was authored by Judge Krueger, who had also written Lugo. Krueger changed his reasons for denying that discrimination existed several times. He wrote the Bustillos decision four years later (after Salazar, which ruled on the basis of the nationality argument), which returned to the “Mexican race” argument ruling that the appellant had not proved there were enough qualified Mexican Americans. This case cited Sanchez and Lugo, ignoring Norris. The district court judge, W. D. Howe, also authored Carrasco.
44. Ibid., 90.
45. Hernandez v. State, 535. The subsequent cases are Salazar v. Texas, 193 S.W. 2d 211 (1946), Sanchez v. Texas, 243 S.W. 2d 700 (1951), and Rogers v. Texas, 236 S.W. 2d 141 (1951).
46. Ibid., 533.
47. Ibid., 536. The Supreme Court rejected the claim to proportional representation in 1880 in Virginia v. Rives. Rives claimed that neutral procedures could not provide a black defendant an impartial jury due to white prejudice, and therefore that one-third of the jury should be black. See Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy (New York: Basic Books, 1994), 105-7.
48. Hernandez v. State, 535.
49. Salazar v. Texas, 212.
50. Sanchez v. Texas (1951), 700.
51. Ibid., 701. The Texas Court of Criminal Appeals had made this argument only twice previously, once by the author of Sanchez v. Texas, Judge Beauchamp, in Salazar v. Texas.
52 The literature on Mexican American civil rights efforts offers short summaries of Hernandez v. Texas, but does little analysis of it or of its predecessors. See Richard Delgado and Vicky Palacios, “Mexican Americans as a Legally Cognizable Class under Rule 23 and the Equal Protection Clause,” Notre Dame Law Review 50 (1974): 393-418, 395; Gary
A. Greenfield and Don B. Kates, Jr., “Mexican Americans, Racial Discrimination, and the Civil Rights Act of 1866,” California Law Review 63 (1975): 662-731, 686-87; Benjamin Marquez, LULAC: The Evolution of a Mexican American Political Organization (Austin: University of Texas Press, 1993), 55; Jorge Rangel and Carlos Alcala, “Project Report: De Jure Segregation of Chicanos in Texas Schools,” Harvard Civil Rights-Civil Liberties Law Review 7 (1972): 307-91, 342-44; and Arnoldo de Leon, Mexican Americans in Texas (Arlington Heights, Ill.: Harlan Davidson, Inc., 1993), 116-17. See Haney López, “Race, Ethnicity, Erasure,” 1143-1211. This is the first article to focus attention on Hernandez.
53. According to testimony, fourteen percent of the population, eleven percent of males over twenty-one, and six to seven percent of freeholders had Spanish surnames. Further, according to the 1950 census 1,738 of the 1,865 Spanish surnamed individuals were native born (Hernandez v. Texas, 480, n. 12, and 481).
54. This summary is based on Carlos Cadena’s brief to the Supreme Court. U.S. Supreme Court, Records and Briefs, Pete Hernandez, Petitioner vs. the State of Texas (Washington: Judd and Detweiler, Printers, 1953), hereafter cited as Records and Briefs. Cadena and Gus Garcia presented the case before the Supreme Court and were aided in writing the brief by Maury Maverick, John Herrera, James DeAnda, and Chris Alderete. These men, along with a few others like Alonso Perales, George Sanchez, Ed Idar, Hector Garcia, and M. C. Gonzalez, led the key civil rights battles. Gonzalez brought Lugo v. Texas (1939) and Salazar v. Texas (1946) to trial, while Herrera and DeAnda brought Sanchez v. Texas (1951) to trial.
55. Records and Briefs, 38-40.
56. Ibid., 37 (emphasis added).
57. Mae Ngai, “The Architecture of Race in American Immigration Law: A Reexamination of the Immigration Act of 1924,” Journal of American History 86 (June 1999): 67-92.
58. David Roediger, “Whiteness and Ethnicity in the History of ‘White Ethnics’ in the United States,” in Roediger, Towards the Abolition of Whiteness (New York: Verso, 1994), 182.
59. Ibid., 108.
60. Salvatierra, 33 S.W. 2d 790 (1930). The court did allow “separation” for ostensibly legitimate pedagogical purposes, such as the inability to speak English, which rendered the impact of this decision nil until Mendez v. Westminster School District, 161 Fed. 2d 774 (CA-1947), and, in Texas, Delgado v. Bastrop Independent School District, 388 W.D. Texas (1948).
61. Independent School District v. Salvatierra, 795, emphasis added.
62. Taylor, An American-Mexican Frontier, 268-69. Taylor’s interviews and observations provide an invaluable primary resource for this era.
63. In 1930 the census classified Mexicans as a distinct race. See Mario Garcia, “Mexican Americans and the Politics of Citizenship: The Case of El Paso, 1936,” New Mexico Historical Review 59 (1984): 187-204, 199, for an account of their successful fight to have the category eliminated and be reclassified as white.
64. Taylor, An American-Mexican Frontier, 268. Mexicans and blacks worked alongside each other in the cotton fields of Texas. See Neil Foley, The White Scourge (Berkeley: University of California Press, 1997), for the relationships between blacks and Mexicans, and whiteness.
65. Cadena, “Legal Ramifications,” np. To be fair, Cadena also called for unity with other “progressive” minority groups and rejected segregating themselves from other efforts to promote racial justice.
66. Hernandez v. State, 536.
67. Cadena, “Legal Ramifications,” np.
68. Haney López, “Race, Ethnicity, Erasure,” 1205. The strategy of declaring assertions of difference irrelevant, and protecting equality by prohibiting the use of racial language, is eerily similar to the current rhetoric of the affirmative action debates.
69. Records and Briefs, 6.
70. Ibid., 14.
71. Ibid., emphasis in the original.
72. Records and Briefs, 100-101.
73. Ibid., 26.
74. Hernandez v. Texas, 477. Strauder v. West Virginia made mention of national origin: “Nor, if a law be passed excluding all naturalized Celtic Irishmen, would there be any doubt of its inconsistency with the spirit of the Amendment” (308). See also Yick Wo v. Hopkins, 118 U.S. 356 (1886), in which the Court found that the Fourteenth Amendment’s provisions “are universal in their application, to all persons under the territorial jurisdiction, without regard to any differences of race, or color, or of nationality” (Records and Briefs, 106).
75. Hernandez v. Texas, 478.
76. Ibid., 482.
77. Ibid.
78. See George Martinez, “Legal Indeterminacy, Judicial Discretion and the Mexican-American Litigation Experience: 1930-1980,” University of California at Davis Law Review 27 (1994): 555.
79. See, generally, Greenfield and Kates, “Civil Rights Act,” 680-84, and n. 92, for the Texas statutes.
80. The very apt phrase “in-between peoples” is taken from James Barrett and David Roediger, “In-between Peoples: Race, Nationality, and the ‘New Immigrant’ Working Class,” Journal of American Ethnic History (Spring 1997): 3-44 See Ian F. Haney López, White by Law: The Legal Construction of Race (New York: New York University Press, 1996) for discussion of the naturalization cases.
81. Mexicans’ indeterminate status entitled them to greater protection than other groups, such as blacks and Chinese, and afforded them a basis from which to assert legal claims. Yet it hindered efforts to secure legal remediation for discrimination. Those who appeared white also sometimes were accepted as equals by whites, despite knowledge of their “race.” This was determined, however, at individual Anglos’ discretion.
82. See the growing literature interrogating whiteness, including David Roediger, The Wages of Whiteness (New York: Verso, 1991); Roediger, “Whiteness and Ethnicity”; Theodore Allen, The Invention of the White Race (New York: Verso, 1994); Alexander Saxton, The Rise and Fall of the White Republic (New York: Verso, 1990); and Richard Delgado and Jean Stefanic, Critical White Studies (Philadelphia: Temple University Press, 1997).
83. Records and Briefs, 38, emphasis added.
84. Ian F. Haney López, “The Social Construction of Race,” in Critical Race Theory: The Cutting Edge, ed. Richard Delgado (Philadelphia: Temple University Press, 1995), 547.
85. 81 F 337 (1897). Treaty of Guadalupe Hidalgo, Article VIII, Library of Congress Online, Feb 2, 1998, http://lcweb.loc.gov/exhibits/ghtreaty. Article IX noted that Mexicans who elected to become U.S. citizens by remaining within the acquired territory “shall be included into the union of the United States and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States.” The Article also guaranteed the enjoyment of liberty and property of these residents in the meantime. This served as a basis for challenging the citizenship rights of Mexican Americans. In California, their status as U.S. citizens was resolved by People v. de la Guerra, 40 Cal. 311 (1870). Their citizenship status in Texas remained contested because the U.S Supreme Court ruled in McKinney v. Saviego, 18 How. 235 (1856), that the treaty did not apply to Texas. This case served as the basis for conflicting land claims until 1923 when an international conference was convened to settle the question. However, the treaty was most often interpreted as serving as de facto naturalization. See Richard Griswold del Castillo, The Treaty of Guadalupe Hidalgo (Norman: University of Oklahoma Press, 1990).
86. In re Rodriguez, 345.
87. Ibid., 347.
88. Ibid.
89. Ibid., 338-44. See In re Ah Yup, 1 F 223 (1878), In re Camille, 6 F 256 (1880), Elk v. Wilkins, 112 U.S. 94 (1884).
90. Ibid., 349.
91. Ibid., 350-55.
92. The legitimacy of U.S. citizens who were descendants of other conquered nations, such as Filipinos, Native Americans, and Puerto Ricans, was also challenged. See Amy Kaplan and Don Pease, eds., Cultures of United States Imperialism (Durham, N.C.: Duke University Press, 1993).
93. Hernandez was decided just two weeks prior to the landmark Brown v. Board of Education.
94. Marquez, LULAC, chap. 2, argues that some LULAC members believed racism to be the chief obstacle hindering Mexican American social and economic mobility.
95. Garcia, “Informal Report,” n.p.
96. Taylor found this attitude common among prominent Mexican Americans. One professed in regard to social discrimination, “The Mexican consul belongs to the best golf club and society club, so it shows that if we have people prepared for it they will be accepted without discrimination. . . . If prepared, you have got a chance the same as anyone else in these United States. . . . One of the worst hated people in this country is a Jew, but he has prepared himself, so he is way up now.” An American-Mexican Frontier, 265.
97. Roediger, “Whiteness and Ethnicity.”
98. Neil Foley, “Becoming ‘Hispanic’: Mexican Americans and the Faustian Pact with Whiteness,” in Reflexiones 1997: New Directions in Mexican American Studies, ed., Neil Foley (Austin: University of Texas Press), 1998.
99. Marquez, LULAC.
100. Taylor, An American-Mexican Frontier, 268.
101. Grace Hale, Making Whiteness: The Culture of Segregation in the South, 1890-1940 (New York: Pantheon Books, 1998), xi.
102. Judith Shklar, American Citizenship: The Quest for Inclusion (Cambridge: Harvard University Press, 1991), 39.
103. Hernandez v. State, 535.
104. This section is influenced by Cheryl Harris’ article, “Whiteness as Property,” Harvard Law Review 106 (1993): 1709-91, connecting whiteness with property rights.
105. Records and Briefs, 108-9.
106. Ibid, 106.
107. See Beverly Beeton, Women Vote in the West: The Women Suffrage Movement, 1869-1896 (New York: Garland, 1996) for why women were granted the vote in Utah, Colorado, Wyoming, and Idaho and Jamin Raskin, “Legal Aliens, Local Citizens: The Historical, Constitutional, and Theoretical Meanings of Alien Suffrage,” University of Pennsylvania Law Review 141 (1993): 1391-1470 on aliens.
108. Juan F. Perea, “Hernandez v. New York: Courts, Prosecutors, and the Fear of Spanish,” Hofstra Law Review 21 (1992): 1-61, 57.
109. Hiroshi Fukurai, Edgar W. Butler, and Richard Krooth, Race and the Jury: Racial Disenfranchisement and the Search for Justice (New York: Plenum Press, 1993), chaps. 2 and 3.
110. Hernandez v. Texas, 482.
111. See Abramson, We, the Jury, chap. 13; Marianne Constable, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge (Chicago: University of Chicago Press, 1994), chap. 2; and Fukurai, Butler, and Krooth, Race and the Jury, for discussions of how these issues are represented today.
112. U.S. Commission on Civil Rights, Mexican Americans and the Administration of Justice in the Southwest (Washington, D.C.: U.S. Government Printing Office, 1970), 37-38.
113. Hernandez v. New York, 111 S.Ct. 1859 (1991), 359-63.
114. Records and Briefs, 3. This comparison is problematic because the rules governing peremptory challenges and challenges for cause differ. However, for the purpose of reflection on the broader issues of neutrality and colorblindness, exploring this avenue could be fruitful. It can illuminate similarities among ways of thinking about race that escape narrow rulings. Comparison of early jury discrimination cases and current debates over jury selection procedures, the legitimacy of peremptory challenges, and jury nullification should be pursued. See, for example, Perea, “Hernandez v. New York” and Fukurai, Butler, and Krooth, Race and the Jury.
115. Charles Lawrence, “The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism,” Stanford Law Review 39 (1987): 317-88.
116. Hernandez v. New York, 1873-75.
117. One could argue that they were treated as a race in Clifton v. Puente, 218 S.W. 2d 272 (1949). Although the decision used the terminology “Mexican descent” to refer to Mexican Americans, the court concluded that racial restrictive covenants in real estate contracts were precluded by the Equal Protection Clause of the Fourteenth Amendment (274). But the Supreme Court did not discuss Mexican Americans’ status as a group. Cadena, who also worked on Clifton, noted its correspondence to Hernandez (Records and Briefs, 106), but did not argue that Mexican Americans should be protected as a racial group. The Supreme Court merely observed that the amendment had been construed in Clifton to protect people of Mexican descent (Hernandez v. Texas, 478, n. 6).
By: Clare Sheridan