"Another white race:" Mexican Americans and the paradox of whiteness in jury selection

Law and History Review

Volumn 21, Issue 1, 2003, Pages 110-143

  Sheridan, Clare ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 64949171602     PISSN: 07382480     EISSN: None     Source Type: Journal    
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References (146)

1. Strauder v. West Virginia, 100 U.S. 303 (1880)
2. and Carter v. Texas, 177 U.S. 442 (1900)
3. 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)
4. David Montejano, Anglos and Mexicans in the Making of Texas, 1836-1986 (Austin: University of Texas Press, 1987)
5. 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)
6. 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)
7. Mark Reisler, By the Sweat of Their Brow: Mexican Immigrant Labor in the United States, 1900-1940 (Westport, Conn.: Greenwood Press, 1976), 152
8. 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
9. 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
10. Act of March 26, 1790, chap. III, 1, 1 Stat. 103 and Naturalization Act of July 14, 1870 (16 Statutes-at-Large 254)
11. See also Jose Amaro Hernandez, Mutual Aid for Survival: The Case of the Mexican American (Malabar, Fla.: Robert E. Krieger Publishing Co., 1983), 73
12. Paul S. Taylor, An American-Mexican Frontier: Nueces County, Texas (Chapel Hill: University of North Carolina Press, 1934), 247
13. See Abraham Hoffman, Unwanted Mexican Americans in the Great Depression: Repatriation Pressures, 1929-1939 (Tucson: University of Arizona Press, 1974)
14. 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)
15. See Montejano, Anglos and Mexicans, 268, for a discussion of the Good Neighbor Policy
16. 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)
17. Westminster School District vs. Mendez, 161 Fed. 2d 774 (1946)
18. Clifton v. Puente, 218 S.W. 2d 272 (1949)
19. Terrell Wells Swimming Pool v. Rodriguez, 182 S.W. 2d 824 (1944)
20. Sanchez v. Texas, 243 S.W. 2d 700 (1951)
21. Rogers v. Texas, 236 S.W. 2d 141 (1951)
22. Bustillos v. Texas, 213 S.W. 2d 837 (1948)
23. Salazar v. Texas, 193 S.W. 2d 211 (1946)
24. Sanchez v. Texas, 181 S.W. 2d 87 (1944)
25. Lugo v. Texas, 124 S.W. 2d 344 (1939)
26. Carrasco v. Texas, 95 S.W. 2d 433 (1936)
27. Ramirez v. Texas, 40 S.W. 2d 138 (1931)
28. "Householder" means the head of a family who rents a room within the county
29. Sanchez Papers, "Brief," box 30, folder 15
30. Hernandez v. Texas, 476
31. 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
32. 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)
33. Hill v. Texas, 316 U.S. 400 (1942)
34. and Cassell v. Texas, 339 U.S. 282 (1950)
35. 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)
36. People v. Barltz, 180 N.W. 423 (1920)
37. and Palmer v. State, 150 N.E. 917 (1926)
38. 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
39. See Ernest P. Goodman, "Notes and Recent Decisions," California Law Review 35 (1947): 142-46
40. and McNabb v. U.S., 318 U.S. 332 (1942)
41. Alonso Perales, El mexico americano y la politica del sur de Texas: comentarios (published by the author, 1931), 11 (my translation)
42. 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.)
43. Cadena's part was entitled "Legal Ramifications of the Hernandez Case: A Thumbnail Sketch," and Garcia's, "An Informal Report to the People."
44. Act of March 1, ch. 114, 4, 18 Stat (pt. 3), rev'd, 109 U.S. 3 (1883)
45. In Race, Crime, and the Law (New York: Pantheon Books, 1997)
46. Randall Kennedy notes that only one case, Ex parte Virginia, 100 U.S. 330 (1880), tested this law
47. Virginia v. Rives, 100 U.S. 313 (1880)
48. Neal v. Delaware, 103 U.S. 370 (1881)
49. Carter v. Texas, 177 U.S. 442 (1900). Ibid., 447
50. 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
51. Norris v. Alabama, 588
52. 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
53. Smith v. Texas, 311 U.S. 128 (1940)
54. Cassell v. Texas, 339 U.S. 282 (1950)
55. and Ross v. Texas, 341 U.S. 918 (1951)
56. Juarez v. Texas, 277 S.W. 1091 (1925)
57. Hernandez v. Texas, 478
58. Lugo v. Texas, 344
59. Ian F. Haney López, "Race, Ethnicity, Erasure: The Salience of Race to LatCrit Theory," University of California Law Review 85 (1997): 1166-70
60. 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
61. Lugo v. Texas, 348
62. 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
63. See, generally, Vernon Allsup, The American G.I. Forum: Origins and Evolution (Austin: Center for Mexican American Studies), 1982
64. 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
65. Hernandez v. State, 535
66. The subsequent cases are Salazar v. Texas, 193 S.W. 2d 211 (1946)
67. and Rogers v. Texas, 236 S.W. 2d 141 (1951)
68. 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
69. See Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy (New York: Basic Books, 1994), 105-7
70. Salazar v. Texas, 212
71. Sanchez v. Texas (1951), 700
72. 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
73. 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
74. 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
75. 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
76. Benjamin Marquez, LULAC: The Evolution of a Mexican American Political Organization (Austin: University of Texas Press, 1993), 55
77. 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
78. and Arnoldo de Leon, Mexican Americans in Texas (Arlington Heights, Ill.: Harlan Davidson, Inc., 1993), 116-17
79. See Haney López, "Race, Ethnicity, Erasure," 1143-1211. This is the first article to focus attention on Hernandez
80. 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 sumamed individuals were native bom (Hernandez v. Texas, 480, n. 12, and 481)
81. 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
82. 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)
83. and Salazar v. Texas (1946)
84. to trial, while Herrera and DeAnda brought Sanchez v. Texas (1951) to trial
85. Records and Briefs, 38-40
86. 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
87. 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
88. Salvatierra, 33 S.W. 2d 790 (1930)
89. 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)
90. and, in Texas, Delgado v. Bastrop Independent School District, 388 W.D. Texas (1948)
91. Independent School District v. Salvatierra, 795, emphasis added
92. Taylor, An American-Mexican Frontier, 268-69. Taylor's interviews and observations provide an invaluable primary resource for this era
93. 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
94. See Neil Foley, The White Scourge (Berkeley: University of California Press, 1997), for the relationships between blacks and Mexicans, and whiteness
95. 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
96. Hernandez v. State, 536
97. Cadena, "Legal Ramifications," np
98. 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
99. Hernandez v. Texas, 477
100. 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)
101. See also Yick Wo v. Hopkins, 118 U.S. 356 (1886)
102. 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)
103. 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
104. See, generally, Greenfield and Kates, "Civil Rights Act," 680-84, and n. 92, for the Texas statutes
105. 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
106. 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
107. 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
108. See the growing literature interrogating whiteness, including David Roediger, The Wages of Whiteness (New York: Verso, 1991)
109. Roediger, "Whiteness and Ethnicity"; Theodore Allen, The Invention of the White Race (New York: Verso, 1994)
110. Alexander Saxton, The Rise and Fall of the White Republic (New York: Verso, 1990)
111. and Richard Delgado and Jean Stefanic, Critical White Studies (Philadelphia: Temple University Press, 1997)
112. 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
113. 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)
114. 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
115. See Richard Griswold del Castillo, The Treaty of Guadalupe Hidalgo (Norman: University of Oklahoma Press, 1990)
116. In re Rodriguez, 345
117. Ibid
118. See In re Ah Yup, 1 F 223 (1878)
119. In re Camille, 6 F 256 (1880)
120. Elk v. Wilkins, 112 U.S. 94 (1884)
121. 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)
122. Hernandez was decided just two weeks prior to the landmark Brown v. Board of Education
123. Marquez, LULAC, chap. 2, argues that some LULAC members believed racism to be the chief obstacle hindering Mexican American social and economic mobility
124. Garcia, "Informal Report," n.p
125. 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
126. Roediger, "Whiteness and Ethnicity."
127. 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
128. Grace Hale, Making Whiteness: The Culture of Segregation in the South, 1890-1940 (New York: Pantheon Books, 1998), xi
129. Judith Shklar, American Citizenship: The Quest for Inclusion (Cambridge: Harvard University Press, 1991), 39
130. This section is influenced by Cheryl Harris' article, "Whiteness as Property," Harvard Law Review 106 (1993): 1709-91, connecting whiteness with property rights
131. See Beverly Beeton, Women Vote in the West: The Women Suffrage Movement, 1869-1896 (New York: Garland, 1996)
132. 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
133. Juan F. Perea, "Hernandez v. New York: Courts, Prosecutors, and the Fear of Spanish," Hofstra Law Review 21 (1992): 1-61, 57
134. 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
135. Hernandez v. Texas, 482
136. See Abramson, We, the Jury, chap. 13
137. 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
138. and Fukurai, Butler, and Krooth, Race and the Jury, for discussions of how these issues are represented today
139. 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
140. Hernandez v. New York, 111 S.Ct. 1859 (1991), 359-63
141. 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
142. Charles Lawrence, "The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism," Stanford Law Review 39 (1987): 317-88
143. Hernandez v. New York, 1873-75
144. 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)
145. 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
146. 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)