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Latinos and American Law discusses the historical significance of some landmark cases of the country's highest court involving Latinos/Hispanics. Of interest are not only the rulings themselves, but also the interaction between Latino/Hispanic individuals and communities in the United States and the American legal system. Through areas such as education, the administration of criminal justice, voting rights, employment, and immigration, those legally trained as well as non-lawyer readers will gain a greater appreciation of the subtle complexities of the issues facing Latinos and their interactions with the American legal system. Relatively few books have addressed how the legal system has impacted Hispanics, although in recent years the topic has received greater attention, and law review articles and other academic disciplines have more developed studies of Latinos.
The Supreme Court considers only a small number of cases appealed to the Court. These are a fraction of all cases filed in federal and state courts throughout the United States. Obviously missing from this discussion are tens of thousands of cases involving Latinos in the American legal system, the vast majority of which, while directly affecting lives, are decided by state courts, lower federal courts, or other courts. While these include cases generally unknown to the vast majority of Americans or people in law schools, some are very well known, such as Gonzalez v. Reno (11th Cir. 2000). Instead, this book is confined to legal dramas played out at the summit of the American legal system. Focusing on the Supreme Court makes sense because the Supreme Court is a unique institution in the United States, with a unique role in American history and the legal system. The names of landmark Supreme Court cases such as Scott v. Sandford (1856) (aka the Dred Scott case), Plessy v. Ferguson (1896), Brown v. Board of Education (1954), Miranda v. Arizona (1966), and Roe v. Wade (1973) are widely known and form the basis for discussions about issues in American society. The Supreme Court is at the pinnacle of the American legal system's judiciary branch. All federal courts are subservient to the Supreme Court, and matters involving constitutional or other federal issues are also reviewed from the courts of the states and other jurisdictions.
The American legal system developed from the British common law system, and therefore traces its roots to a source different from that of the legal systems of most European and Latin American countries, commonly referred to as civil law jurisdictions, where the Napoleonic codes form the basis of substantive law. At a theoretical level, this distinction is significant because the American legal system, like its other common law counterparts throughout the former British Empire and Commonwealth countries, tends to focus more on case law, precedents, judicial reasoning, and stare decisis, while the systems related to civil law jurisdictions focus more on the language of the codes and works of legal scholars interpreting the codes. Black's Law Dictionary defines stare decisis as "the doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation." In reality, and in practice, over time these two polar theoretical extremes have blended. For instance, every one of the United States' jurisdictions now have statutes that are functionally the equivalents of the codes and which "codify" common law rulings or other legislative enactments. Similarly, in part due to technological advancements making information easier to obtain and in part due to the influence of the American legal system, civil law countries have increasingly used prior rulings in making judicial determinations of particular legal disputes.
Latinos and American Law analyzes issues of particular significance to Latinos as well as cases involving legal issues that are important to the American legal system generally and where Latinos were key participants. Latinos and American Law tries to promote understanding and to further the great ideals of the United States legal system: liberty, equality, and a government of laws and rules. Latinos and American Law is generally organized chronologically and divided according to the Supreme Court's various historical eras by reference to the Chief Justice at the time (e.g., the Warren Court, the Rehnquist Court, etc.). The introduction provides a historical backdrop for understanding the general role of Latinos in the American society and legal system. Each chapter focuses on one landmark Supreme Court case of significance to Latinos in the American legal system, beginning with a discussion of background factors, including relevant general legal issues. Then, each chapter walks through the opinion, or opinions, since in many of these cases the Court was divided and some justices wrote opinions separate from the Court's official opinion, either agreeing or disagreeing with the Court's ruling. The chapters then conclude with a brief analysis of the opinion's significance and post-decision events of note. While many cases involve constitutional issues, others do not. Some involve interpretations of legal statutes such as Title VI or Title VII of the Civil Rights Act of 1964 and provisions of the Voting Rights Act of 1965. This distinction is significant because the Court is the final arbiter on constitutional issues, but not of non-constitutional laws, which a subsequent Congress may choose to amend if Congress disagrees with a ruling from the Court on statutory issues. A ruling from the Court on constitutional issues generally can only be challenged either (1) by a subsequent case before the Supreme Court seeking to overrule or modify that decision, or (2) by constitutional amendment.
The legal issues and each chapter of the book describe legal situations as diverse as the groups comprising Latinos, including ethnic, geographic, and other differences. The Court's rulings reflect the times, including the politics of the times. Frequently, the Court's rulings were pro-government. Of the cases in this book, the only "pro-government" ruling that involved legislation made for the benefit of Latinos is Katzenbach v. Morgan (1966), a case whose ruling has been subject to extensive criticism. Also noteworthy is the gap between the Court's rhetoric and the results of its holdings. Several cases highlight how narrow and formal construction of anti-discrimination laws can render them virtually meaningless in protecting relatively politically powerless groups. Portions of the book involve aliens/immigrants' rights, an issue that frequently came to the Court's attention during the Burger Court (1969-1986). The first two chapters, as well as the cases from the Warren Court (1952-1968), highlight the fact that the roots or origins of Latinos/Hispanics in the United States stand independently and apart from immigration, or alienage, issues. Botiller v. Dominguez (1889) reflects the role of the Court as part of a conquering government in the Southwest after the U.S.-Mexican War of 1846. Balzac v. Porto [sic] Rico (1922) reflects the Court's role as co-governing colonial institution over Puerto Rico. Some of the opinions in Latinos and American Law reflect that the Court, at times, applies laws and constitutional protections differently depending on the places (specifically the U.S.-Mexican border region, other immigration points, and Puerto Rico). These places are largely inhabited by Latinos/Hispanics. Hernandez v. Texas (1954) challenged the American legal system's general binary white/black views of race and ethnicity. The Warren Court served as an instrument of social change during the post-World War II, Cold War, and Civil Rights eras.
"Latino" and "Hispanic" are used interchangeably in this book to refer to the people in the historical context of their existence within the United States who are characterized as having a Spanish surname and/or who emigrated from (or whose ancestors originated in) a predominantly Spanish-speaking country. The terms "Hispanic" or "Latino" include not only members of the three largest ethnic groups generally characterized by people having a Spanish surname and/or who speak Spanish as a primary language in the country of their origin—Mexican-Americans, Puerto Ricans, and Cubans—but also Dominicans, Guatemalans, and other Central Americans, as well as Colombians, Argentinos, and other South Americans. Many have questioned whether these terms make any sense at all. Until the United States government and the governments of subdivisions of the United States began using these terms, no one had been born a "Hispanic" or a "Latino," and the terms lack the precision of being born a woman or a man or even, to a lesser extent, black or white. Earl Shorris writes, "there are no Latinos, only diverse peoples struggling to remain who they are while becoming someone else." Most people would agree that those born and raised in Latin America would not conceive of themselves as "Latino" or "Hispanic" as those terms are used in the United States, as opposed to boliviano, ecuatoreano, mexicano, or nicaraguense, for example. Linda Chavez makes the point with a slightly different perspective: "Before the affirmative action age, there were no Hispanics, only Mexicans, Puerto Ricans, Cubans, and so on."
Not all Latinos/Hispanics speak Spanish. For some, English is the only language. Not all Latinos/Hispanics have Spanish surnames or first names. In light of all of the differences across subgroups of Latinos, one might wonder if we should even use these characterizations. From a legal perspective, however, such terms have come to have some import. Justice William Douglas provided a persuasive rationale in a dissenting opinion when the United States Supreme Court refused to accept certiorari (the writ most commonly used by people who seek to have the Supreme Court accept the discretionary review of their case from a lower court) in a class action suit brought on behalf of "Indo-Hispano" children seeking publicly funded bilingual education in New Mexico's public schools, Tijerina v. Henry (1970). In Tijerina, the federal district court refused to recognize the putative or proposed class because its membership was too vague. According to Justice Douglas, "One thing is not vague or uncertain, however, and that is that those who discriminate against members of this and other minority groups have little difficulty in isolating the objects of their discrimination."
Joan Moore and Harry Pachón, in Hispanics in the United States, note also that the geographical spread beyond the "traditional" population zones (Cubans in Florida, Mexican-Americans in the Southwest, and Puerto Ricans in the Northeast) and the increasing number of Hispanics in the United States via immigration and high fertility rates have created a convergence of interests at some levels. Since the first census of the twenty-first century, Latinos/Hispanics are now considered "the largest minority group" in the United States. In the context of the American legal system, the Supreme Court in Hernandez v. New York (1991) recognized Latinos/Hispanics as a group in that it used those categories to consider a challenge to the fairness of jury selection where all the Hispanic/Latino jurors were struck from a criminal jury.
The flip side of classifying people is defining those not in the classified group. The two most important groups in relation to Hispanics are white Americans and black Americans because the United States as a society has viewed itself predominantly as bi-racial (black or white). The legal system has reflected this bi-racial view of the United States, and Hispanics (like Asian-Americans and others) do not neatly fit in one category or the other. Also, white Americans are the "majority" in the United States and are most heavily represented in the power structure; traditionally, black Americans have been the largest "minority" group in the United States and were the leaders and focus of the Civil Rights movement of the 1950s and 1960s as well as anti-discrimination laws passed in the nineteenth century. Other relevant groups to Latinos in the American political reality include Asian-Americans and Native Americans. Of particular importance is the fact that Asian-Americans and Native Americans are found in great preponderance in the West and Southwest, much like Mexican-Americans.
Legal systems generally mirror the societies in which they exist, since laws are in essence the rules governing societal norms. The American legal system is no exception, and whereas race has played a central role in aspects of the American legal system, until recently, Latinos/Hispanics were largely considered an anomaly or an afterthought within the black-white legal and societal structure. Additionally, norms generally applicable to nationals of other countries (foreign nationals) have at times been applied to Latinos, even when those Hispanics are citizens, such as in the case of Puerto Ricans.
Peter Skerry describes Mexican-Americans as "ambivalent" in deciding whether they should be considered a "minority" or an "ethnic group." These two terms are loaded with connotations, and he suggests that "minority group" means "a victimized racial claimant group" while "ethnic group" means a cultural immigrant group. Skerry refers to blacks as the prototypical "minority" and non-Hispanic Anglos like the Irish as "ethnics." Mexican-Americans and other Latinos are not ambivalent. Rather, the fact that Hispanics do not fit neatly into the black-white binary of American society and the legal system creates what may be perceived by some as ambivalence. Indeed, the very composition of Latinos/Hispanics—a mixed racial and ethnic background, whether it be mestizo, mulatto, or ladino—was one thing American society and the legal system sought to prevent since the seventeenth century through laws such as those forbidding mixed marriages, which the Supreme Court only declared unconstitutional in Loving v. Virginia (1967). Whereas in the American context, mixed marriages and the children of mixed couples have been traditionally viewed as exceptions or aberrations, in Latin America, after five hundred years of Spanish colonialism and miscegenation, people of mixed ancestry are common, if not the norm. Throughout the history of United States, interactions with Latin America and with Latin Americans have traditionally reflected conflicts at the cultural level, involving different predominant religious views, as well as at the economic or political level. How this group has interacted with the highest level of the American legal system is the focus of this book.
While focusing on some landmark cases, Latinos and American Law does not discuss, highlight, or exhaust every significant or landmark Supreme Court case involving Latinos/Hispanics in the American legal system. Nor does the book attempt to address every issue involving Latinos/Hispanics in the American legal system. Rather, Latinos and American Law seeks to open a dialogue and provide a one-volume resource, not conclusive, definitive answers.