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Latinos and the Law

Summary and Keywords

Latino Americans have intersected with the law in complicated ways throughout American history. Latinos themselves are a diverse and heterogeneous racial, ethnic, and cultural group, with members hailing from all parts of the Spanish-speaking world and representing all variations on the spectrum of race. Each group has a unique origin story, but all have been shaped by law and legal process. Legal historians and legal scholars explore the role of law in incorporating Latino groups in American society, the effects of law on Latino communities, and the struggles of Latino lawyers, activists, and ordinary people against legal discrimination and for equality. The civil rights story of Latinos bears strong resemblance to that of African Americans: In each case, members have been subjected to de jure and de facto discrimination and social subordination. But the Latino civil rights story has unique valences, particularly in the areas of language discrimination and immigration law and policy. Latino legal history demonstrates the complex ways that Latinos interact with the color line in American law and politics.

Keywords: Latinos, legal history, civil rights, Mexican Americans, Puerto Ricans, Cuban Americans, Central Americans, discrimination, segregation, race, immigration, refugee law, language rights, borderlands

The legal history of Latinos is rich and varied. Three facets of that history are particularly important: the role of law in conquest and colonization; the development of legal controls on immigration; and the history of Latino civil rights struggles. The law played a critical role in incorporating former Spanish territories and persons of Spanish descent in the American polity in the 19th and early 20th centuries. Race was a preeminent theme in conquest and legal incorporation; from the mid-19th century onward there was confusion in courts, state legislatures, and Congress over whether to treat those of Mexican, Latin American, and Caribbean descent as white. Commonly, Latinos were treated as white by law but nonwhite in social and cultural practice. Legal definition as white did not protect Latinos from rampant persecution and discrimination. The pathway to full inclusion as American citizens was long, contested, and violent. In the case of citizens from Puerto Rico, the process is still unfinished.

Immigration law has been one of the most difficult and potent areas of legal interaction for Latinos, even those who are natural-born citizens rather than immigrants. The 20th century witnessed the rise of the racialized architype of the “illegal alien” in political and legal discourse. This trope has been used to justify further restrictions on migration as well as substandard legal treatment of Latinos in the U.S. For good and ill, immigration law has played a crucial role in shaping the modern-day Latino community.

Legal struggles over rights to education, jury service, and voting also proved central in shaping the nation’s Latino communities. Attorneys for various civil rights organizations challenged discrimination in court, leading to seminal decisions in American jurisprudence. Civil rights attorneys today continue to challenge unequal treatment of Latinos, which is sometimes disguised as cultural discrimination rather than race or national origin discrimination. The continuing persistence of a “black/white paradigm” in both the courts and scholarly discourse makes the diverse experiences of Latino Americans harder to see.1 Latino legal history has an important role in bringing these diverse experiences to light.

Origins, Conquest, and Legal Heritage

Most Latino Americans today trace their roots back to the Spanish conquest of the New World and the resulting mix of European, indigenous, and African influences. In the 19th century, ideologies of Manifest Destiny, white supremacy, and economic imperialism contributed to two wars with dramatic consequences for the ethnic composition of the United States: the Mexican-American War (1846–1848) and the Spanish-American War (1898). The country expanded considerably in the 19th century with the addition of the southwestern states in 1848 and Puerto Rico, Guam, and the Philippines in 1898. These lands were populated by hundreds of thousands of persons of Spanish descent who became residents of the United States. The incorporation of former Spanish colonial lands and peoples into American territory in the 19th century was a legal process, governed by treaties, property law, and interpretations of the federal Constitution. Yet it was also a violent and brutal process. Law did not shield residents of these areas from mistreatment; in many cases, the law in fact perpetuated it. Much of the legal history of Latinos in the 19th century explores this fraught relationship between law and violence in the borderlands and the Caribbean. Historians describe the myriad ways that Latinos resisted or adapted to conquest and its aftermath.

The U.S.-Mexico Borderlands

Mexican Americans trace their origins to Spanish colonization of Mexico and other parts of Latin America, as well as to indigenous peoples and those of African descent brought as slaves to those regions. Spanish colonizers came to the modern-day southwestern United States beginning in the 16th century. Mexico gained independence from Spain in 1810 and thereafter struggled to secure its northern border against incursions by American settlers from the East. American interest in Mexican land led to the revolt of American settlers in Texas and eventually to the Mexican–American War. With U.S. victory in the war and the signing of the Treaty of Guadalupe Hidalgo in 1848, Mexico lost close to half its territory.

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Figure 1. Map by John Disturnell showing territory governed by Mexico in 1847. Texas was a part of Mexico until 1845. This map was appended to the Treaty of Guadalupe Hidalgo.

Image courtesy of the National Archives and Records Administration.

Mexican residents of the region became American citizens by default: The treaty specified that Mexicans in the area would become American citizens unless they declared their intention to remain Mexican citizens within one year of the signing of the treaty.2 The treaty also promised the protection of Mexican landholdings.

Many communities in the Mexican Cession remained majority mexicano and continued to be governed by those of Mexican descent for several decades after the war. Power-sharing regimes developed between Mexican Americans and Anglo-Americans, and legal institutions could provide important sites for maintaining social status. In New Mexico, for example, Mexican American elites gained and retained positions of power in the territorial legislature and the courts, particularly in justice of the peace and probate courts.3 In parts of California, Texas, and Arizona, Spanish language remained relevant in the realms of commerce as well as in the courthouse. The absence of any real border enforcement allowed residents to maintain connections to Mexico and create lasting patterns of circular migration. Mexican Americans continued to utilize some customs from Spanish and Mexican law but also found appeal in elements of American law. Some Mexican American women, for example, found that American law provided opportunities to increase their power and status in the family due to more liberal provisions of divorce and domestic law.4

Although the rich cultural and legal heritage of Spain and Mexico continued in the borderlands, this was increasingly challenged as more Anglo-American settlers moved west seeking land, wealth, and greater political power and bringing notions of white racial superiority with them. Residents of Mexican descent found their land ownership called into question. States, Congress, and territorial governments adopted legal procedures that weakened the guarantees of property protection provided in the Treaty of Guadalupe Hidalgo. In New Mexico, for example, the territorial Court of Land Claims demanded that claimants not only provide title documents for land grants—some of which dated from the Spanish colonial period—but also prove that their title had been granted by a legitimate authority in the Spanish or Mexican government, thereby tying land claims to Mexico’s tumultuous political history. Courts and administrative bodies in the region imposed American understandings of private property ownership over land grants rooted in Spanish and Mexican legal traditions to effectively disenfranchise those owners.5 Legal interpretations were not the only threats to ownership: Many lost property due to the cost of litigation, the workings of market capitalism, or outright and violent land grabbing. Losses extended not only to private land holdings but also to those communal landholdings that were the centerpieces of towns and pueblos throughout the region.6

Loss of property was directly correlated with loss of political and economic power across the region and made those of Mexican descent far more vulnerable to discriminatory treatment in the courts.7 Vigilante violence against Mexican Americans, including lynchings, rape, and mass executions, was common throughout the 19th century.8 Conditions only worsened in the early 20th century. When a small contingent of mexicanos attempted a violent uprising in south Texas in 1915, the Texas Rangers—a state-sanctioned police force—terrorized the region for three years, torturing and killing thousands of innocent persons of Mexican descent.9 When mine workers of Mexican descent in Bisbee, Arizona, protested unfair wages and dangerous working conditions in 1917, the mining company and local law enforcement officials organized a mass deportation, removing over a thousand striking workers to the sweltering desert.10

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Figure 2. Armed men marching striking workers toward railroad cattle cars during the Bisbee Deportation in Arizona on July 12, 1917.

Courtesy of the Arizona Historical Society.

During the Great Depression, federal, state, and local officials, as well as some civilian mobs, contributed to the unlawful removal to Mexico of more than four hundred thousand persons of Mexican descent, including the deportation of those who were American citizens.11 These historical flashpoints underline the vulnerable status of Mexican American citizens in the polity as well as the failure of American courts to protect them.

The promises of the Treaty of Guadalupe Hidalgo, which supposedly were enforceable as a matter of both domestic and international law, ultimately rang hollow. As Richard Griswold del Castillo concludes, “[w]ithin a generation the Mexican Americans who had been under the ostensible protection of the treaty became a disenfranchised, poverty-stricken minority.”12 Jim Crow segregationist practices were firmly in place in many southwestern towns by the 1920s. As prominent Mexican American attorney and activist M. C. Gonzáles recalled of that era, “In those days, from El Paso to Brownsville, all along the highways you would see restaurants dotted with signs: ‘No Mexicans Allowed’ and we couldn’t go into restaurants, swimming pools and theaters . . . We couldn’t go to a barber shop, the movies; we couldn’t do many things.”13 Anglo-American lawmakers, politicians, and business leaders in the Southwest and West had used law to accomplish what was in essence a second conquest, subjugating those of Mexican descent to unequal treatment in a way that the Treaty of Guadalupe Hidalgo had not. But rather than give up on the American justice system, Gonzáles and many others turned to the courts in the 1920s and 1930s to attempt to guarantee civil rights under the Constitution and to fulfill the promise of full citizenship for Mexican Americans.

The Caribbean: Puerto Rico, Cuba, and the Dominican Republic

Puerto Ricans, Cubans, Dominicans, and other Latinos with Caribbean roots also have a path to membership rooted in Spanish colonial history and conquest, followed by American imperialism. The Treaty of Paris in 1898 ended the Spanish-American War and granted the United States control of the Spanish holdings of Puerto Rico, Guam, and the Philippines.

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Figure 3. Map of the West Indies and the Caribbean, Herman Moll, Atlas Minor, 1732.

Geographicus Rare Antique Maps.

Spain also gave up any claims to Cuba, but Congress passed legislation guaranteeing Cuba’s independence after a brief period of American occupation. American forces controlled the island for three years until handing over power to an independent Cuban government in 1902. Congressman Henry Teller, who introduced the law guaranteeing Cuba’s independence, was concerned about competition in the beet and sugar industries, but his amendment also found wide support from those who did not want to grant Cubans American citizenship because of their race and religion. These same fears of a nonwhite population governed the drafting of the Treaty of Paris, which did not guarantee Puerto Ricans citizenship but instead stated that “the civil rights and political status of the native inhabitants of the territories . . . shall be determined by Congress.”14 It gave no timeframe for that process. Congress took a first step at defining status in the Foraker Act of 1900, which declared, somewhat nonsensically, that Puerto Ricans were “citizens of Porto Rico” [sic].15

This congressional ineptitude led to confusion for judges and administrators, who were unsure initially what to do with Puerto Ricans. The 1904 case of Gonzalez v. Williams provides an instructive example. Puerto Ricans had been traveling to the United States since the 19th century, but migration increased after annexation.16 One such traveler was Isabel Gonzalez, a pregnant woman who traveled from the island to be with her husband, who was working in a factory in New York City. She was denied entry at Ellis Island due to government officials’ assertions that she was “likely to become a public charge.” The application of this ground was often used to bar the entry of nonwhite migrants, particularly women traveling alone; Mexican and Chinese migrants were commonly denied entry under the public charge exclusion ground during this time. At issue in Gonzalez’s case was whether immigration laws should apply to her at all. Officials treated her as an alien immigrant, despite the fact that Puerto Rico had become part of the United States after the Treaty of Paris, and they detained her at Ellis Island. Gonzalez challenged her detention with the help of prominent Puerto Rican attorney and politician Federico Degetau y González.17

Latinos and the Law

Figure 4. Federico Degetau y González (1862–1914), lawyer, politician, and first Puerto Rican Resident Commissioner in Congress.

Image courtesy of the National Archives and Records Administration.

The case made its way to the Supreme Court, where the majority held that Puerto Ricans were not aliens and did have the right of admission to the mainland. Although the court resolved the issue of migration rights, it did not clarify anything else about Puerto Rican citizenship, including whether Puerto Ricans had fundamental rights such as the right to vote or serve on juries. The Gonzalez case left Puerto Ricans as subjects rather than citizens, even with an unimpeded right to travel to the mainland United States.18

Congress finally clarified the Puerto Rican citizenship question in 1917 when it passed the Jones Act.19 But the act granted only partial citizenship to Puerto Ricans: Residents of Puerto Rico could not vote in state or federal elections, had no elective representative in Congress, and were subject to congressional ability to override any of the decisions of the Puerto Rican government. “For the first time in [American] history,” writes José Cabranes, “citizenship was granted to a people without the promise of eventual statehood and without the full panoply of rights guaranteed by the United States Constitution.”20 In its terms it was literal second-class citizenship, or what Rogers Smith has aptly called “but another perfumed kind of colonial subjectship.”21

At issue in this period was not just the status of Puerto Ricans but also of the island itself. The annexation gave rise to the series of cases on constitutional authority known as the Insular Cases, which hashed out the rights and obligations of the territorial relationship. The Insular Cases are comprised of close to two dozen cases decided by the Supreme Court between 1901 and 1922 that developed the “doctrine of incorporation,” which justified Puerto Rico’s continuing treatment as an “unincorporated territory” rather than as an incorporated territory on its way to statehood.22 The doctrine allowed the U.S. government to keep the benefits of ownership of the islands without the potential costs of adding the so-called “alien races” to the polity.23 The cases created a novel in-between status, of neither independence nor statehood, departing from the revolutionary traditions at the founding of governance only with consent of the people. It also allowed for the continuation of subordinate status for Puerto Ricans themselves, since Congress was not compelled to grant full citizenship rights to the residents of an unincorporated territory as they would have been to the residents of a state. Today this struggle continues, as Puerto Ricans still do not have all the rights of American citizenship.

The Treaty of Paris did not spell the end of American imperialist ambitions in the Caribbean. In 1916, U.S. forces began an eight-year occupation of the Dominican Republic, spurred by a desire to forestall hostile European intervention in the Caribbean and to safeguard significant economic interests in the region. The U.S. occupation contributed to the rise of a centralized military apparatus on the island, which the infamous Dominican dictator Rafael Trujillo would use to his advantage when he came to power in 1930.24 Dominicans who migrated to the United States in large numbers starting in the 1960s were inheritors of the legacies of American intervention.

Citizenship and Race in the New Territories

Racism and xenophobia were express factors in Congress’s unwillingness to incorporate emigrating populations from the U.S.-Mexico borderlands and the Caribbean. Many lawmakers were loath to grant full membership to those who were racially, linguistically, and culturally diverse.25 Debates in Congress were explicit about this: Legislators described the populace of Puerto Rico as “mongrels” and bemoaned their “ignorance and inferiority.”26 A similar dynamic played out in statehood debates for New Mexico and Arizona. Texas and California became states in 1845 and 1850, respectively, but New Mexico and Arizona were not admitted until six decades later due in large part to concerns in Congress about the predominance of Mexicans and Native Americans in the populace of those places.27 Building on the nativism surrounding the annexation of Puerto Rico, as well as a long tradition of anti-Mexican rhetoric dating from the 19th century, lawmakers argued that large numbers of Mexican Americans in the territories were not capable of self-government and were an “alien” population, threatening in their use of Spanish and their Catholic cultural and religious traditions.28 Against these odds, territorial leaders finally prevailed after sixty-two years of petitioning for statehood, and New Mexico and Arizona joined the union as states in 1912.

Debates over statehood illustrate the enduring confusion in the 19th and early 20th centuries about where those of Spanish descent fit into the American racial order. American courts and lawmakers often disagreed on how to categorize and treat those persons under the extant laws that maintained racial segregation. Only “free white persons” were eligible to naturalize as American citizens when the Treaty of Guadalupe Hidalgo was signed in 1848. Yet the treaty guaranteed that Mexicans living in the area would become American citizens, with no reference to racial preference or exclusion. As Laura Gómez writes, the treaty in essence performed a group naturalization that “promoted a legal definition of Mexicans as ‘white’.”29 But the legal definition was in tension with the racial order, since many Mexican Americans were of indigenous and African heritage as well and appeared to white Americans as nonwhite or, in Gómez’s apt conception, “off-white.” After 1870, persons of “African descent” were also eligible to naturalize, but persons of Asian origin were explicitly barred from naturalization. The courts refused naturalization petitions of others as well, including persons of mixed racial heritage.30 Some Anglo-Americans challenged the ability of Mexican immigrants to become naturalized citizens.31 In the case of In Re Rodríguez in 1897, the Western District Court in Texas considered the naturalization petition of Ricardo Rodríguez, a citizen of Mexico who had lived in San Antonio for ten years.32 Anglo-American politicians in San Antonio challenged Rodríguez’s petition in court, claiming that Texas Mexicans could not naturalize because they were neither white nor black. The controversy around Rodríguez’s citizenship spurred protests and counterclaims. More than two hundred men of Mexican descent rallied in support of Rodríguez. Some in the Anglo community supported him as well, including one man who testified to Rodríguez’s good character. After a year of legal maneuvering, the court finally approved his petition for naturalization based not on a determination that he was phenotypically “white” but rather on the citizenship guarantees in various laws, including the Treaty of Guadalupe Hidalgo, the law of the Republic of Texas, and the Texas state constitution. The court noted that Rodriguez might fail the “strict scientific” definition of whiteness but that he was white by default, given that prior laws had “collective[ly] naturalized” those of Mexican descent. Mexicans and Mexican Americans essentially became “white by treaty,”33 but confusion about whether they were legal and socially white, black, or something else continued unabated into the 20th century and would shape the contours of Latino civil rights struggles into the 21st century.

By 1920, the population of persons of Spanish descent in the United States had grown to more than one million.34 In acquiring the Mexican Cession and Puerto Rico and admitting Arizona, California, and New Mexico as states, the union became far more diverse. These colonial and territorial origins set up the pathways for increased migration in the 20th century. They also shaped American law in significant ways. The acquisition of Puerto Rico influenced discussions of the Constitution and the role of empire in the American legal tradition for decades to come. Some Spanish and Mexican legal traditions continue in force in many parts of the Southwest.35 Most notable among these is the community property system, based on Spanish and Mexican civil law, which recognizes joint ownership of marital property by both husband and wife. Law was a key factor in determining how and when Latinos became a part of the United States in the 19th century, but the law was also shaped in turn by interactions between Latinos and the legal system. This give and take would continue into the 20th century, with the growth of the federal immigration regime and the dramatic increase in Latin American and Caribbean migrations.

Immigration Law and the Shaping of the Latino Community

While Latinos in the United States today trace their roots to the lands that formed the Mexican Cession or to the Caribbean under Spain, many others are the descendants of immigrants who arrived later in the 20th century, or are immigrants themselves. As a result, laws about immigration have indelibly shaped the Latino population of the United States, which, as of 2010, numbered more than 50 million, or 16 percent of the overall population.36 Today, due to particularities of immigration law and inequalities in the economies of Latin American countries, the United States has a population of more than 11 million undocumented migrants, the majority of them of Mexican descent.37 As unauthorized migrants, these persons have no path to citizenship, have no political rights, and have limited civil rights. They are but a small part of the overall Latino population, which is predicted to reach almost one-third of the overall U.S. population by 2060. The growth of this community has not been happenstance but is the result of specific laws passed and policy choices made over the course of the past 150 years since the birth of the federal immigration regime in the 1880s.

Boundary Drawing

Throughout most of the 19th and early 20th centuries—and in stark contrast to today—migration of Mexicans and other Latin American citizens across the southern land border faced little political or social resistance. The U.S.-Mexico border was largely a political fiction, a line on a map rather than an enforced demarcation of sovereignty.38 Migration from the “Western Hemisphere”—a term of art referring to Latin America, Canada, and the Caribbean—was for the most part welcomed and encouraged, both in practice and law. Agricultural interests relied on a steady stream of migrant labor. Lawmakers generally left this intact, even while passing harsh, racially restrictive immigration laws limiting Asian, African, and selected European immigration throughout the 1910s and 1920s. In part because of lobbying by agribusiness, Mexican immigrants were not included in the infamous National Origins Quota Act of 1924 that drastically limited or prohibited migration from southern and eastern Europe, Asia, and Africa. In that same year, however, Congress created the Border Patrol, a police force tasked with enforcing immigration laws. Bureaucrats administering immigration law also began barring the entry of Mexicans through administrative routes, since they were unable to do so through the Quota Act itself.39

Initially, the Border Patrol was concerned more with Asian migrants, crossing over from Mexico, than with Mexican migration. But the creation and deployment of this policing force set in motion today’s militarization of the border, attaching criminality to long-standing practices of border crossing by those of Mexican origin.40 Mexicans were caught in a continuing cycle of “invitation and exile,” as U.S. employers sought their services and immigration officials attempted to deport them.41 Restrictive immigration laws and procedures in the 1920s and 1930s laid the groundwork for the racialized idea of the “illegal alien.”

Postwar Expansion

The post-World War II period witnessed a softening in attitudes toward migration, as the economy rebounded and employers sought a ready supply of cheap labor. Migrants from Latin America and the Caribbean sought economic gains and, in some cases, a refuge from conflicts in their own countries. Workers from Puerto Rico were particularly in demand, since, as citizens, they were not subject to restrictive immigration practices. Puerto Rican migration rose exponentially after World War I: The Puerto Rican population of the U.S. mainland expanded from just eleven thousand in 1920 to more than one million by 1970.42 Dominican immigration was also on the rise after World War II. Between the 1960s and the 1990s, Dominicans migrated in numbers between twenty-five thousand and fifty-one thousand per year. More than 60 percent settled in New York City, becoming that city’s largest foreign-born population by 1990.43

Mexican immigration grew considerably after World War II with the introduction of the first official guest-worker program. Known as the Bracero Program, it was created by U.S. agencies in 1942. From 1942 to 1964, various iterations of the program brought in millions of Mexican laborers, who were offered employment but not permanent immigration status or a path to citizenship.44 These networks of labor migration fostered further economic migration, contributing to the growth of a transnational labor force.

In the Cold War era, passage of immigration and refugee laws was part of a broader strategy to destabilize communism around the globe. The various provisions allowing for Cuban migration are the most striking example of the deployment of immigration law in the service of political goals. Cubans, who now comprise 3.5 percent of the U.S. Latino population,45 migrated to the United States in increasing numbers in the 19th century, establishing roots in Florida in particular. But the number of migrants remained relatively low until Fidel Castro’s rise to power in 1959 and the resultant introduction of communism in Cuba. Hundreds of thousands of Cubans fleeing the oppressive regime left in the 1960s, 1970s, and 1980s, aided by U.S. government policies to provide a safe haven to them.46 Cuban migrants were treated initially as exiles rather than immigrants and given temporary refuge. As more Cubans migrated, Congress created policies such as the Cuban Adjustment Act of 1966, which gave them a fast-track to permanent residence and American citizenship.47 Congress and the executive branch continued to authorize various forms of discretionary admission for Cubans. Until the 1980s, Cuban migration was virtually unlimited in American law, unlike the migration of those from Latin America and other countries in the Caribbean. As one scholar has remarked, “No other country’s nationals had it so easy.”48

The 1960s brought major immigration reform for all immigrants, not just for Cubans. The racialized immigration quota scheme in place since the 1920s came under increasing criticism during the 1950s and 1960s.49 Congress finally eliminated the national origins quota system with the passage of the Immigration Act of 1965, also known as the Hart-Celler Act.50

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Figure 5. President Lyndon B. Johnson signing the Immigration Act on Liberty Island in New York, October 3, 1965. Yoichi Okamoto, White House Photo Office.

Image courtesy of the LBJ Library, A1421-33a.

The act introduced the modern framework of immigrant admissions, which prioritizes for permanent residence those immigrants with family connections or employment offers in the United States. The focus on family reunification created strong networks of immigrants who were able to take advantage of the stability and continuity that family could provide. The act also introduced refugee admissions as a separate category. The refugee category enabled thousands of those who were fleeing communist governments around the globe to become permanent residents.

In many ways, the 1965 act was a major liberalizing force. The act included a nondiscrimination clause specifically meant to remove race as a factor in immigrant admissions. It significantly increased the opportunities for those from Asia, Africa, and southern and eastern Europe to migrate to the United States. Through the refugee category, it provided the first statutory pathway to citizenship for those fleeing government repression. But the 1965 act also had negative consequences for some migrants. Notably, it was the first immigration act to set a numerical cap on migration from the Western Hemisphere, including from Mexico. This cap was set at an unrealistically low number, which contributed to the growth of undocumented migration since it did not reflect long-standing cross-border relationships and enduring labor needs.51 The refugee category did not provide admission for all those fleeing government persecution; instead, it limited admission to those from the Eastern Hemisphere who were fleeing communism, or to refugees from the Middle East. Oddly, it provided no statutory basis for Cuban refugees to enter, instead continuing the ad hoc process of allowing Cuban entry through special acts of Congress and the discretion of the executive branch. (The act also included a provision for admitting annually a small number of refugees fleeing natural disasters, but this was never utilized.)52

The limitation in the refugee category to those fleeing communist oppression or the Middle East had devastating consequences for refugees from Central America in the 1970s and 1980s who were trying to escape civil war, economic devastation, and the violence and repression of right-wing authoritarian governments. Between 1976 and 1996, hundreds of thousands of Central Americans died due to conflicts in their countries. More than one million were internally displaced and more than two million sought refuge in Mexico, the United States, or Canada.53 The U.S. government played a direct part in fomenting instability in the region: During the Reagan era, the country propped up brutal right-wing regimes in El Salvador and Guatemala and funneled resources to the contra rebels in Nicaragua, who were attempting to overthrow a socialist government. The 1965 act provided no refugee pathway for those trying to escape the death squads and torture authorized by right-wing governments in the region.

Congress finally abandoned the statutory preference for those fleeing communism with the passage of the Refugee Act of 1980. This act adopted the United Nations’ definition of a refugee as a person who is seeking asylum based on a “well-founded fear” of persecution based on “race, religion, nationality, membership of a particular social group, or political opinion.” The act allowed for both individual claims of asylum from migrants in-country as well as the blanket admission of refugees from overseas, as designated by the President in consultation with Congress. Even with communism dropped as a specific criterion, however, chances for asylum were exceedingly slim for Central American migrants. By 1990, ten years after the passage of the Refugee Act, only 10 percent of refugee admissions from abroad came from countries that were not communist or communist dominated.54

Legal pathways to the United States were largely closed off, so most Central American refugees entered the country in the 1970s and 1980s without documentation, by crossing the U.S.-Mexico border surreptitiously. The majority settled in California, Texas, or Florida and in major metropolitan areas. Their arrival, and the actions of the U.S. government to deport them, contributed to legal developments in immigration and refugee law. In the 1980s and 1990s, lawyers challenged the disparate treatment of Central American refugees and defended the due process rights of migrants. In Orantes-Hernandez v. Thornburgh, decided by the Ninth Circuit Court of Appeals in 1990, lawyers demonstrated that officials with the Immigration and Naturalization Service (INS) had been pressuring Salvadoran immigrants to accept voluntary departure, interfering with their right to counsel, arbitrarily limiting communications with family members and access to information, and generally making it difficult if not impossible for detainees to apply for asylum. The court affirmed that the INS had demonstrated “a pattern and practice of pressuring or intimidating” Salvadoran migrants and issued a permanent injunction to prevent due process violations in the future.55 In American Baptist Churches v. Thornburgh in 1991, a California district court approved a class action settlement that forced the INS to renew consideration of thousands of asylum applications of Guatemalan and Salvadoran migrants. The ABC settlement, as it is called, concluded that the government had applied asylum law to deny the claims of refugees based not on whether they had a “well-founded fear” of persecution but instead on legally irrelevant considerations like the nature of the relationship between the United States and the sending country, or foreign policy or border enforcement concerns.56

Cases like these did not alter the overall statutory framework of immigration and asylum law but provided important protections at the margins for immigrants. The refugee crisis inspired a new generation of immigration activists, giving rise to the Sanctuary Movement of the 1980s, in which churches and concerned citizens across the country protested immigration policies and provided shelter for Central American migrants in church buildings, helping to draw attention to the deplorable conditions faced by refugees.57 As Susan Bibler Coutin notes, legal efforts on behalf of Central American refugees “not only addressed the legal situation of these immigrant groups but also created new legal expertise, encouraged immigration attorneys to pursue policy changes in addition to representing individual clients, and contributed to a network of immigrant-rights groups across the United States—groups that still exist and can be mobilized for other causes as well.”58

The Immigration Act of 1965, for all its omissions and exclusions, was a high-water mark in the era of bipartisan openness to migrants. From the 1970s onwards immigration policy became increasingly more restrictive. In the 1980s and 1990s, Congress passed a series of laws that further criminalized unlawful entry and made it harder for those who did not have legal status to ever be able to reenter the country legally, most notably the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act, both passed in 1996.59 Unlike in earlier eras of American history, unauthorized migrants in the 21st-century have few if any ways to regularize their status.60 All immigrants are potentially subject to a massive deportation machinery; in recent years, the budget for immigration control and enforcement has exceeded the budgets of all other federal law enforcement agencies combined.61 The proliferation of immigration enforcement and the criminalization of immigrants has negative consequences for Latino communities across the country. Enforcement actions can destabilize families and workplaces and threaten the civil rights of immigrants and citizens alike. The legacy of these intertwined 20th-century policies—contract labor recruitment followed by the criminalization of undocumented migration—can be seen in the presence today of more than 11 million undocumented immigrants, as well as in enduring, racialized stereotypes of Mexicans as quintessential “illegal aliens.”

Latino Civil Rights Movements in the 20th Century

The intricacies of immigration law and policy help explain the demographic composition of today’s Latino population and also demonstrate the myriad ways that individuals become American. But how did Latinos experience being American? Essential to understanding the experience of Latinos with American law is a close look at the civil rights struggles of these populations, which have had to fight against various forms of discrimination on the basis of race, national origin, language, and alienage status, among others. Law has been both an obstacle and a force of liberation in these struggles.

Many Latinos resident in the United States in the 20th century faced de jure and de facto discrimination and social stigmatization.

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Figure 6. Russell Lee, “Discrimination. Dimmitt, Texas,” 1949.

Russell Lee Photograph Collection, Dolph Briscoe Center for American History, University of Texas at Austin.

Mexicans and Mexican Americans in the Southwest were the victims of racialized violence, including lynching and rape.62 Mexican Americans were subject to miscegenation laws in some states, including Arizona, Oregon, North Carolina, and Virginia, where officials either considered them to be of “Indian” or “Negro” heritage and therefore unable to marry whites or of “Spanish” heritage and unable to marry blacks or Indians.63 Puerto Ricans, Dominicans, Cubans, and other migrants from Latin America in the North and Midwest were the targets of discriminatory treatment in housing, the workplace, and policing. Puerto Ricans, like African Americans, were not immune just because they were natural-born citizens. As historian Carmen Teresa Whalen notes, “wherever they settled, Puerto Ricans confronted discrimination in several realms, including employment, police relations, education, politics, religious institutions, access to public spaces, and the provision of social services.”64

Latino communities responded with proactive strategies to overcome disparate treatment in the law. Numerous civil rights organizations emerged in the 20th century. Mexican Americans founded the League of United Latin American Citizens (LULAC) in 1929 in Texas, seeking, in part, “to use all the legal means at our command to the end that all citizens in our country may enjoy equal rights, the equal protection of the laws of the land and equal opportunities and privileges.”65

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Figure 7. Members in attendance at the first LULAC convention in 1929 in Corpus Christi, Texas.

LULAC Archives, the Nettie Lee Benson Latin American Collection, University of Texas Libraries, University of Texas at Austin.

The American GI Forum (AGIF), founded in Texas in 1948, initially formed to seek benefits for Mexican American veterans who were mistreated by the government but soon expanded into other realms of civil rights law. In 1968, Mexican American attorneys founded the Mexican American Legal Defense and Education Fund (MALDEF) in San Antonio. Puerto Rican attorneys founded the Puerto Rican Legal Defense and Education Fund (PRLDEF) in New York in 1972. Union organizing was also a key part of the overall strategy to secure equality. In 1962 Dolores Huerta and Cesar Chavez cofounded the labor union United Farm Workers of America (UFW), which secured better wages and working conditions for hundreds of thousands of laborers. The UFW used law to its advantage, defending the rights of workers in court and contributing to passage of protective legislation like the Agricultural Labor Relations Act in California.66 These national organizations were most prominent, but there were also countless state and local organizations that fought for the rights and well-being of those of Latino heritage. Civil rights groups brought hundreds of cases to the courts, including seminal cases that secured rights to equal education and to jury service for Latino Americans.

Civil rights struggles across regions coalesced around a group of common issues: school segregation, exclusion from jury service, language discrimination, residential segregation, and racialized restrictions on property ownership. Because of the “in-between” racial status of Latinos—protected as “white” in some legal categories but not treated that way in others—discriminatory treatment was often hard to challenge head-on in civil rights litigation. Litigation occurred against a backdrop of confusion and contest over whether Mexican Americans and other Latinos were a race, an ethnicity, or something else. Answers to these questions mattered because only certain categories of identity were protected by civil rights legislation.

Education and Segregation

Throughout the Southwest and the West, municipalities and school boards segregated students of Mexican descent in separate schools, commonly justifying such practices on the basis of race, language differences, claims about the biological inferiority of Mexican children, or the differing needs of migrant families. Schools in these communities had not always been this way—in the late 19th century, children in many communities, like El Paso, Texas, attended school side by side.67 But the growth of compulsory education and the influx of white settlers from the East contributed to rampant segregationist practices. By 1930, 90 percent of the school districts in South Texas had separate “Mexican” and “white” schools. More than 80 percent of districts in California with significant Mexican populations had segregated schools.68 Unlike the segregation of African American schoolchildren, the segregation of children of Mexican descent was not mandated by law. Instead, Anglo-American officials and local school boards simply chose to segregate children of Mexican descent, although the law did not require it.

The campaign against school segregation of Mexicans and Mexican Americans in the Southwest began in the 1920s and continues today. In one of the earliest documented cases, Romo v. Laird, the plaintiff sued the school district in Tempe, Arizona, arguing that his children, who were of Mexican descent, should be allowed to attend the “white” school, rather than the “Spanish-Mexican” school to which they were assigned. The court held in favor of the plaintiff, allowing his children to attend the other school, but the school district ultimately prevailed, justifying separate schools on the basis of instructional differences—that is, the need to provide instruction in Spanish—rather than on the basis of race.69 LULAC became involved in school litigation in the 1930s and 1940s, pushing forward seminal cases, including Mendez v. Westminster School District in California and Delgado v. Bastrop Independent School District in Texas. The Mendez decision, decided by a California federal district court and affirmed by the Ninth Circuit in 1947, was a vital precursor to Brown v. Board of Education in 1954, which declared school segregation of African Americans unconstitutional.

Latinos and the Law

Figure 8. Gonzalo and Felícitas Méndez, lead plaintiffs in Mendez v. Westminster. In 1943, their three children were denied entry to the “white” school in the district because they were, in the words of school officials, “too dark.”

Source: KCETLink Media Group.

In Mendez, the district court recognized that “social equality” is a core value of the American public schooling system and that the schools “must be open to all children by unified school association regardless of lineage.”70 It was the first time a federal court had acknowledged that separating students by race or national origin violated the Fourteenth Amendment’s guarantee of equal protection of the laws. Lawyers for the legal defense fund of the NAACP took note of the case, filing an amicus brief that previewed the brief it would later file in Brown.71

The district court decision in Mendez was a watershed moment, but it was dampened by the appeals court ruling. The Ninth Circuit Court of Appeals affirmed the ruling of the federal district court but not on constitutional grounds; rather, the court held that the segregationist practices were unlawful because they had not been implemented pursuant to California state law. The decision seemed to say that such segregation might have been lawful, in line with the “separate but equal” rationale of Plessy v. Ferguson, if the state legislature had mandated it. It left in place California state laws that allowed for the segregation of American Indian and Asian children and raised many questions.72 What significance did the decision have for Mexican-origin children in other states? Would other courts follow the rationale of the district court and declare “Mexican schools” unconstitutional? Were there other permissible bases for the customary separation of children of Mexican descent from white children?

Seeking to clarify the ruling and end segregation in Texas, LULAC and AGIF joined forces to bring another case to the courts in 1948. In Delgado v. Bastrop Independent School District, the plaintiffs were Mexican American parents whose children had been sent to segregated schools in central Texas. The district court judge ruled for the parents and declared the segregationist practices of the school district unconstitutional. The court permanently enjoined the district from segregating children of Mexican descent and made school officials themselves liable for noncompliance.73

Mendez, Delgado, and Brown were watershed cases in that they declared school segregation unconstitutional. Yet the struggle for educational equality had only begun. School districts across the South and Southwest were notorious for noncompliance: Officials would simply ignore court orders or find other ways to justify segregation that were just as damaging. As Guadalupe San Miguel, Jr., notes, civil rights activists entered the “era of subterfuge,” when “a multitude of practices—for example, freedom of choice plans, selected student transfer and transportation plans, and classification systems based on language or scholastic ability—were utilized by local school districts to maintain segregated schools.”74 Discrimination was less overt after Mendez and Delgado but no less deplorable in outcome. Over the next several decades, Latino civil rights groups and attorneys were pivotal in bringing forward suits challenging new forms of unequal treatment in education, particularly disparities in school financing. Civil rights groups have also promoted and protected bilingual education.75

Jury Service and the Paradox of Race

Mexican Americans were systematically excluded from jury service in the first half of the 20th century.76 In a landmark case in 1954, Hernandez v. Texas, the Supreme Court declared such exclusion unconstitutional, rebutting the lower court’s assertion that claims of discrimination were not valid since Mexicans “are not a separate race but are white people of Spanish descent.”77

Latinos and the LawClick to view larger

Figure 9. Pete Hernandez, defendant in Hernandez v. Texas, flanked by two of his lawyers, Gustavo García and John J. Herrera, circa 1953.

Image courtesy of the Dr. Hector P. García Papers, Mary and Jeff Bell Library Special Collections and Archives, Texas A&M University–Corpus Christi.

Lawyers for petitioner Pete Hernández, who were supported by LULAC and AGIF, demonstrated that not only had no Mexican American jurors served on the jury that convicted him, but that no jurors of Spanish or Mexican descent in Jackson County, Texas, had been selected for jury service out of the six thousand total jurors called in the prior twenty-five years, even though they were 14 percent of the population of the county.78 Paradoxically, the Texas court condoned the exclusion of Mexican Americans from juries by categorizing them on the white side of the black/white divide. In other words, according to the Texas court, no remedy was necessary for such blatant race discrimination because Mexicans were white and therefore were represented whenever a white person sat on a jury.

At issue before the Supreme Court in Hernandez was not just the specific question of jury service but also the general applicability of the Fourteenth Amendment’s equal protection clause to persons of Mexican descent. Until then, the Fourteenth Amendment was commonly held to prevent discrimination against former slaves, not discrimination against all persons of color. The Supreme Court, in a unanimous opinion, spoke resoundingly in Hernández’s favor: “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. The Fourteenth Amendment is not directed solely against discrimination due to a ‘two-class theory’—that is, based upon differences between ‘white’ and Negro.”79

The Hernandez case demonstrates the paradoxical relationship of Latinos to race in American legal history. Texas state law supported the notion that Mexicans were de jure white while simultaneously perpetuating rampant de facto discrimination against Mexican Americans in schools, on juries, and in other areas of public life. Prior to the 1950s, courts did not interpret the Fourteenth Amendment to bar many forms of discrimination based on race or national origin; the amendment was interpreted narrowly to prohibit only the most egregious state-based forms of racial discrimination against blacks. Because Plessy v. Ferguson was still the law of the land, Jim Crow practices were allowed to flourish, and there was little to gain legally for Latinos by associating as nonwhite. As historian Nancy MacLean notes, government policies throughout the 20th century, “by permitting discrimination against nonwhites, steered Mexican Americans to define themselves publicly as white and seek gradual advance through assimilation to the white mainstream.”80 The initial strategy of LULAC was assimilationist: In its early years, the organization stressed the importance of speaking English, proclaiming loyalty to the United States, and serving as model citizens. But as LULAC and AGIF took on greater challenges, such as school segregation, it became clear that another approach was needed, one that confronted head-on the realities of long-standing practices of discrimination and segregation.

A decade after Hernandez, Congress passed the Civil Rights Act of 1964, which prohibited discrimination based on race, color, or national origin in public accommodations, employment, and other realms. The act created a new path for Latino activists, making it possible to “embrace nonwhite identity without assuming the risk involved when discrimination was legal,” MacLean writes.81 In the 1960s, Latinos, like other minority groups, gained much stronger protections against discrimination based on skin color, ancestry, or national origin.

But as with the school desegregation suits, victory in the courts and Congress did not always translate to victories in practice. Few Mexican Americans were serving on Texas juries, despite the Hernandez ruling. Texas attorney and activist Pete Tijerina experienced this firsthand in his practice. His Mexican American clients routinely appeared before all-white juries; when Tijerina complained to the judge, he was largely ignored.82 This experience led Tijerina, with the advice and assistance of Jack Greenberg of the NAACP Legal Defense Fund, to create MALDEF in 1967. MALDEF proceeded to take on the essential work of monitoring and enforcing the court-ordered rulings achieved by LULAC and other organizations as well as lobbying legislators and mounting new civil rights challenges in the courts.

Language Discrimination

Civil rights laws provide significant protections for Latinos, but they also have major gaps that allow for continued discrimination, especially where discriminatory intent is difficult to prove or where discriminatory treatment is not on the basis of a protected category. Various forms of discrimination experienced by Latinos have been dismissed as merely “cultural discrimination,” not subject to protection under the Fourteenth Amendment or federal civil rights statutes. Latinos have frequently been the objects of race discrimination thinly veiled as cultural discrimination, and therefore not subject to legal prohibition. As Thomas Saenz, president and general counsel of MALDEF, noted in 2013, “the Latino community’s experience has, for decades, been one of discrimination not often posed as racial discrimination. Instead, the community has regularly experienced discrimination by proxy. . . .”83

Language discrimination has been a particularly persistent proxy for race and national origin discrimination.84 Language discrimination plays out in education policy, jury service, access to public information, conditions of employment, and other key areas of civic life. The federal Constitution declares no official language, but states and municipalities have introduced various forms of English-only laws in many different levels of government, including in state constitutions. English-only movements tend to flourish during times of nativist backlash. As of 2010, more than half the states had some form of “English-only” law, with twenty-two of those laws added after 1981.85 The laws range in their severity, from mild versions akin to listing the state bird and state flower to robust versions that prohibit government communication in any language other than English. Discrimination based on language is difficult to attack given that language is not an expressly protected category under the Fourteenth Amendment or in most major federal civil rights statutes. While not explicitly based on race, the practical effect of such laws is to further marginalize those of Spanish descent and to limit access to education, voting rights, and civic participation.86

Literacy tests for voting are one example of language discrimination. Beginning in the Jim Crow era, various states passed laws limiting the franchise to those who were literate in English, with no exceptions made for those who might be literate in another language, such as Spanish. Literacy tests had various aims, including ensuring that only “educated” citizens could vote. They were also often explicitly nativist in tone. In 1916, one supporter of New York’s election law, which required the ability to read and write in English, noted that the “mental qualities of our race” are exposed to “danger” from the infusion of unworthy immigrants; a literacy test for voting would at least keep such prospective citizens out of the ballot box.87 New York’s restrictive law was particularly galling to the thousands of Puerto Rican residents of the state, who had full voting rights on the mainland after 1917 but had been educated in U.S. government-approved Spanish-only public schools on the island. The Voting Rights Act of 1965 remedied many of the most egregious practices of disenfranchising persons of color, including a provision to protect Spanish-speaking Puerto Rican voters. White registered voters and members of the New York City Board of Elections, supported by the state attorney general, contested this provision of the Voting Rights Act in Katzenbach v. Morgan; nevertheless, the court upheld the provision, noting it was “well within congressional authority to say that this need of the Puerto Rican minority for the vote warranted federal intrusion upon any state interests served by the English literacy requirement.”88

Although Katzenbach was a victory for the Puerto Rican community, the case did not bar literacy tests outright. More robust protections came instead in the form of further congressional enactments. In 1970, Congress amended the Voting Rights Act to eliminate all literacy tests in affected areas; in 1975, Congress created specific, express protections for language minorities. These statutory changes were in part a victory for groups like PRLDEF, which challenged English-only practices in the courts.

During this same era the California Supreme Court, in the 1970 case of Castro v. State, invalidated a state constitutional provision that limited the franchise to those who could read English. The first California constitution in 1850 was decidedly polyglot: It declared official recognition of both English and Spanish and mandated publishing government documents in both languages. The constitution was amended in a time of nativist fervor in the late 19th century as politicians and activists sought to limit the voting power of nonwhites. In striking down the provision almost one hundred years later, the Supreme Court noted the irony that would have resulted had they not done so: It would “indeed be ironic if petitioners, who are the heirs of a great and gracious culture, identified with the birth of California and contributing in no small measure to its growth, should be disenfranchised in their ancestral land, despite their capacity to cast an informed vote.”89

Since the voting rights victories of the 1970s, language discrimination has moved into new realms. Organizations continue to fight to improve rights of access to voting materials in other languages, since the 1975 amendment to the Voting Rights Act declared this a requirement in only some jurisdictions. Egregious voting rights violations continue, such as that identified by the U.S. Department of Justice in Berks County, Pennsylvania. In the 2003 case of United States v. Berks County, a federal district court found that there was “substantial evidence of hostile and unequal treatment of Hispanic and Spanish-speaking voters at the polls.” Poll workers made frequent derogatory comments, made demands for identity documents not required by law, and turned away Hispanic voters because “they refused to ‘deal’ with Hispanic surnames.”90 The Berks County case demonstrates that de facto discrimination continues even with the safeguards of the Voting Rights Act.

Discrimination against those who can speak more than one language has emerged in the realm of jury service, threatening the civil rights victory achieved in Hernandez v. Texas in 1954. In Hernandez v. New York, decided in 1991, the Supreme Court upheld a prosecutor’s use of a peremptory challenge to remove bilingual jurors from a jury panel on the basis that bilingual jurors might not rely on the Spanish interpreter’s translation of the trial testimony.91 In the same year, the Third Circuit Court held in Pemberthy v. Beyer that “the Equal Protection Clause does not prohibit a trial attorney from peremptorily challenging jurors because of their ability to understand a foreign language the translation of which will be disputed at trial.”92 The upshot of this line of cases is to make the ability to speak two or more languages a liability for the right to jury service, with an inevitably discriminatory effect on Latinos who are more likely to be bilingual. The irony is that, as the United States becomes increasingly multilingual, it is more possible that one will not be judged by a jury of one’s peers.

Latinos and the Law Today

The civil rights struggles of the 20th century ensured great gains for Latinos in the United States, but there are still challenges. The battles for voting rights and against school segregation continue. Schools today are in fact more racially segregated than they were in the civil rights era, due in part to profound and systemic inequalities in the public education system as well as increased residential segregation.93 Puerto Ricans experience ongoing concern about second-class citizenship and the lack of political representation. Mexican Americans face anxiety about state-sanctioned discrimination against undocumented immigrants, which inevitably places all those who “look Mexican” into suspicion, as well as about continued militarization of the U.S.-Mexico border, which threatens to cut off key binational relationships and further marginalize those who live in the region. And, of course, there is the enduring question of how to bring an estimated 11 million undocumented migrants, a large portion of whom are of Mexican descent, out of the shadows.

At the same time, there are countless notable accomplishments in the realm of law. President Barack Obama nominated and the Senate confirmed Justice Sonia Sotomayor, a Latina of Puerto Rican heritage and the first Hispanic member of the nation’s highest court.

Latinos and the LawClick to view larger

Figure 10. Supreme Court Justice Sonia Sotomayor, 2009.

Image by Steve Petteway. Collection of the Supreme Court of the United States via Wikimedia Commons.

There are numerous high-level judges, cabinet members, and other lawmakers of Latino heritage. There is widespread popular recognition of the growing political power of Latinos, who are projected to be close to a third of the U.S. population by 2060.94 It is inevitable that Latinos will shape legislation and jurisprudence in dramatic ways in the years to come, as the judiciary, Congress, and the laws come to better reflect the populace.

Discussion of the Literature

Scholarship on Latinos and the law spans disciplines, time periods, and regions. As with histories of other racial and ethnic minority groups and of women, the work expanded dramatically after the 1960s and the growth of multicultural studies in universities and law schools. Important early studies of Latino history that include discussions of law include Albert Camarillo, Chicanos in a Changing Society; David Montejano, Anglos and Mexicans in the Making of Texas; Leonard Pitt, Decline of the Californios; and Robert J. Rosenbaum, Mexicano Resistance in the Southwest. Significant as well has been the addition of more scholars of color in the legal academy, who have given greater attention to the role of law in constituting race and ethnic identity. Groundbreaking theoretical work has emerged from what is known as the “LatCrit” movement, which applies the tenets of critical race theory to the Latino experience. Critical race theory explores the role of law in creating or combating conditions of racial inequality. These scholars primarily publish law review articles and monographs on contemporary legal issues, but their analysis is often informed by or based on history. Key articles are compiled in The Latino/a Condition: A Critical Reader, edited by Richard Delgado and Jean Stephancic. Delgado, Stephancic, and Juan F. Perea authored a casebook, Latinos and the Law, that contains key cases and commentary.

Historical writing on Latinos and the law, like legal history generally, tends to be one of several types: explorations of seminal court cases and legislation; histories of major Latino rights organizations and their accomplishments; or nuanced community studies that discuss law in more indirect ways. (On this last area, see particularly Katherine Benton Cohen’s Borderline Americans, Benjamin Johnson’s Revolution in Texas, and Martha Menchaca’s The Mexican Outsiders.) A few areas stand out for the richness of the literature. Scholars have been writing about the disposition of Mexican land grants after American occupation for over a century, and the work has continued to improve in its depth and analysis. Translating Property by María E. Montoya is notable in this field. Another topic that has received significant attention is the annexation of Puerto Rico and the resulting contest over American empire. Christina Duffy Ponce and Sam Erman, among others, are writing important work in this area. In more recent years, historians have produced robust work on the growth of the Mexican American civil rights movement, particularly the contributions of Mexican American organizations to school desegregation. Michael Olivas, Cynthia Orozco, and Guadalupe San Miguel, Jr., have made important contributions here.

Most authors address specific Latino groups—such as Mexican Americans or Puerto Ricans—or specific legal cases rather than attempting to write synthetic legal histories of all groups of Spanish descent. This makes sense, given the diversity of Latino experiences and the artificial nature of the categorization as “Latino,” but it also raises questions about whether historians are missing important points of collaboration or conflict between different Latino groups. It is interesting to think of how this notion of a “Latino” legal history may change over time. What is the effect on various Latino groups of being characterized in law and popular culture as similar when in fact there are deep differences of culture, class, and race across these groups? Looking more synthetically can give historians a chance to interrogate the idea of “Latino” itself.

A few substantive areas stand out as ripe for further historical work. The majority of scholarship in Latino legal history focuses on Mexican Americans and, to a lesser extent, Puerto Rican Americans. There is a need for more work on the legal history of Latinos other than Mexican Americans, particularly Central Americans and those from the Caribbean. Another area that could benefit from more analysis is the relationship of Latinos and immigration law after 1965. Historians would do well to explore further the consequences of increased immigration restriction on Latino communities, the rise of state and local attempts at immigration enforcement, and the tightening link between immigration and criminal law. There are many community groups and civil rights organizations, such as PRLDEF, that scholars have yet to place in full historical context. Finally, the study of Latinos and the law should open up a rich vein of transnational work, providing opportunities to study the ways that domestic law and legal culture can cross borders.

Primary Sources

As with all legal history, the primary sources for Latino legal history are court cases, legal briefs, legislation, statutes, and ordinances. State archives, such as the Online Archive of California, are an excellent resource. Legal historians also examine a wide range of related materials including newspapers, contemporaneous legal commentary (in law reviews and other law-related periodicals), and the memoirs and archives of lawyers, judges, and important litigants. Relevant organization archives include the records of PRLDEF (Center for Puerto Rican Studies, City University of New York), LULAC (Nettie Lee Benson Latin American Collection, University of Texas at Austin), and MALDEF (Department of Special Collections, Stanford University Libraries, Stanford, California). Also of note are the papers of Dr. Hector P. García, the founder of the AGIF (Special Collections, Bell Library, Texas A&M University–Corpus Christi) and the Mexican American/Latin@ Manuscript Collections at the University of Texas at Austin.

Oral history collections can be excellent resources for exploring the attitudes of ordinary people toward law. The Bracero History Archive collects the stories of laborers who participated in the first guest worker program, from 1942 to 1964. For history relevant to Texas Latinos, the Handbook of Texas Online is a helpful resource. Several sites provide statistical information on Latinos in the United States, both historical and contemporary, including most notably the Pew Research Center and the Migration Policy Institute. Civil rights organization websites can also be useful; note particularly those of PRLDEF and MALDEF.

Further Reading

Burnett, Christina Duffy, and Burke Marshall, eds. Foreign in a Domestic Sense: Puerto Rico, American Expansion and the Constitution. Durham, NC: Duke University Press, 2001.Find this resource:

    Delgado, Richard, and Jean Stephancic, eds. The Latino/a Condition: A Critical Reader. New York and London: New York University Press, 1998.Find this resource:

      Delgado, Richard, Juan F. Perea, and Jean Stefancic. Latinos and the Law: Cases and Materials. St. Paul, MN: Thomson/West, 2008.Find this resource:

        Erman, Sam. “Citizens of Empire: Puerto Rico, Status, and Constitutional Change.” California Law Review 102 (2014): 1181–1242.Find this resource:

          García, María Cristina. Havana, U.S.A.: Cuban Exiles and Cuban Americans in South Florida. Berkeley: University of California Press, 1996.Find this resource:

            García, María Cristina. Seeking Refuge: Central American Migration to Mexico, the United States and Canada. Berkeley: University of California Press, 2006.Find this resource:

              Gómez, Laura E. Manifest Destinies: The Making of the Mexican American Race. New York and London: New York University Press, 2007.Find this resource:

                Lee, Sonia Song-Ha. Building a Latino Civil Rights Movement: Puerto Ricans, African Americans, and the Pursuit of Racial Justice in New York City. Chapel Hill: University of North Carolina Press, 2014.Find this resource:

                  Menchaca, Martha. The Mexican Outsiders: A Community History of Marginalization and Discrimination in California. Austin: University of Texas Press, 1995.Find this resource:

                    Montoya, María E. Translating Property: The Maxwell Land Grant and the Conflict over Land in the American West, 1840–1900. Lawrence: University Press of Kansas, 2005.Find this resource:

                      Ngai, Mae M. Impossible Subjects: Illegal Aliens and the Making of Modern America. Princeton, NJ, and Oxford: Princeton University Press, 2004.Find this resource:

                        Olivas, Michael, ed. “Colored Men” and “Hombres Aquí”: Hernandez v. Texas and the Emergence of Mexican-American Lawyering. Houston, TX: Arte Público Press, 2006.Find this resource:

                          Orozco, Cynthia E. No Mexicans, Women, or Dogs Allowed: The Rise of the Mexican American Civil Rights Movement. Austin: University of Texas Press, 2009.Find this resource:

                            Perea, Juan F., ed. Immigrants Out! The New Nativism and the Anti-Immigrant Impulse in the United States. New York: New York University Press, 1997.Find this resource:

                              Soltero, Carlos. Latinos and American Law: Landmark Supreme Court Cases. Austin: University of Texas Press, 2006.Find this resource:

                                Strum, Philippa. Mendez v. Westminster: School Desegregation and Mexican-American Rights. Lawrence: University of Kansas Press, 2010.Find this resource:

                                  Tirres, Allison Brownell. “Lawyers and Legal Borderlands.” The American Journal of Legal History 50 (2010): 157–199.Find this resource:

                                    Notes:

                                    (1.) Juan F. Perea, “The Black/White Binary Paradigm of Race: The ‘Normal Science’ of American Racial Thought,” California Law Review 85 (1997): 1213.

                                    (2.) Treaty of Guadalupe Hidalgo, U.S.–Mex., February 2, 1848, art. VIII, United States Statutes at Large 9: 922.

                                    (3.) Laura E. Gómez, Manifest Destinies: The Making of the Mexican American Race (New York and London: New York University Press, 2007), 87–98; see also Allison Brownell Tirres, American Law Comes to the Border: Law and Colonization on the U.S./Mexico Divide, 1848–1890 (PhD dissertation, Harvard University, 2008).

                                    (4.) Miroslava Chávez-Gárcia, Negotiating Conquest: Gender and Power in California, 1770s to 1800s (Tucson: University of Arizona Press, 2004).

                                    (5.) María E. Montoya, Translating Property: The Maxwell Land Grant and the Conflict over Land in the American West, 1840–1900 (Lawrence: University Press of Kansas, 2005), 168–182.

                                    (6.) Peter Reich, “Dismantling the Pueblo: Hispanic Municipal Land Rights in California since 1850,” American Journal of Legal History 45 (2001): 369.

                                    (7.) David Montejano, Anglos and Mexicans in the Making of Texas (Austin: University of Texas Press, 1987), 235–252.

                                    (8.) William D. Carrigan and Clive Webb, “The Lynching of Persons of Mexican Origin or Descent in the United States, 1848–1928,” Journal of Social History 37 (Winter 2003): 411–438; and Linda Gordon, The Great Arizona Orphan Abduction (Cambridge, MA: Harvard University Press, 1999), 254–274.

                                    (9.) Benjamin Heber Johnson, Revolution in Texas: How a Forgotten Rebellion and Its Bloody Suppression Turned Mexicans into Americans (New Haven, CT: Yale University Press, 2003).

                                    (10.) Katherine Benton-Cohen, Borderline Americans: Racial Divisions and Labor War in the Arizona Borderlands (Cambridge, MA: Harvard University Press, 2009).

                                    (11.) Francisco E. Balderrama and Raymond Rodríguez, Decade of Betrayal: Mexican Repatriation in the 1930s, rev. ed. (Albuquerque: University of New Mexico Press, 2006).

                                    (12.) Richard Griswold del Castillo, The Treaty of Guadalupe Hidalgo: A Legacy of Conflict (Norman: University of Oklahoma Press, 1990), 86.

                                    (13.) Cynthia E. Orozco, No Mexicans, Women, or Dogs Allowed: The Rise of the Mexican American Civil Rights Movement (Austin: University of Texas Press, 2009), 30.

                                    (14.) Treaty of Peace Between the United States and the Kingdom of Spain, U.S.–Spain, December 10, 1898, United States Statutes at Large 30: 1754.

                                    (15.) Foraker Act, April 12, 1900, United States Statutes at Large 31 (1900): 77.

                                    (16.) Carmen Teresa Whalen, “Colonialism, Citizenship and the Making of the Puerto Rican Diaspora,” in The Puerto Rican Diaspora: Historical Perspectives, eds. Carmen Teresa Whalen and Victor Vázquez-Hernández (Philadelphia: Temple University Press, 2005), 2–4.

                                    (17.) Christina Duffy Burnett, “They Say I Am Not an American . . .: The Non-Citizen National and the Law of American Empire,” Virginia Journal of International Law 48 (2008): 659–718.

                                    (18.) Sam Erman, “Citizens of Empire: Puerto Rico, Status and Constitutional Change,” California Law Review 102 (2014): 1213–1225.

                                    (19.) Jones Act, March 2, 1917, United States Statutes at Large 39 (1917): 951.

                                    (20.) José A. Cabranes, “Citizenship and the American Empire: Notes on the Legislative History of the United States Citizenship of Puerto Ricans,” University of Pennsylvania Law Review 127 (1978): 391–492, 490.

                                    (21.) Rogers Smith, “The Bitter Roots of Puerto Rican Citizenship,” in Foreign in a Domestic Sense: Puerto Rico, American Expansion and the Constitution, eds. Christina Duffy Burnett and Burke Marshall (Durham, NC: Duke University Press, 2001), 380.

                                    (22.) Scholars disagree on the total number of cases included, ranging from six to twenty-three. See Christina Duffy Burnett, “A Note on the Insular Cases,” in Foreign in a Domestic Sense, 389–392.

                                    (23.) See Juan F. Perea, “Fulfilling Manifest Destiny: Conquest, Race and the Insular Cases,” in Foreign in a Domestic Sense, 155–160.

                                    (24.) Bruce Calder, The Impact of Intervention: The Dominican Republic During the U.S. Occupation of 1916–1924, rev. ed. (Princeton, NJ: Markus Weiner Publishers, 2006), xxvi; and Ellen D. Tillman, Dollar Diplomacy by Force: Nation-Building and Resistance in the Dominican Republic (Chapel Hill: University of North Carolina Press, 2016).

                                    (25.) Downes v. Bidwell, 182 U.S. 244, 286–287 (1901).

                                    (26.) Smith, “Bitter Roots,” 379.

                                    (27.) Gómez, Manifest Destinies, 71–78; and Perea, “Fulfilling Manifest Destiny,” 140–166.

                                    (28.) John Nieto-Phillips, The Language of Blood: The Making of Spanish-American Identity in New Mexico, 1880s–1930s (Albuquerque: University of New Mexico Press, 2005).

                                    (29.) Gómez, Manifest Destinies, 83.

                                    (30.) Ian Haney Lopez, White by Law: The Legal Construction of Race, rev. ed. (New York: New York University Press, 2006).

                                    (31.) Arnoldo De León, In Re Ricardo Rodríguez: An Attempt at Chicano Disenfranchisement in San Antonio, 1896–1897 (San Antonio, TX: Caravel Press, 1979).

                                    (32.) In re Rodríguez, 81 F. 337 (W.D. Texas, 1897).

                                    (33.) Ariela J. Gross, “‘The Caucasian Cloak’: Mexican Americans and the Politics of Whiteness in the Twentieth-Century Southwest,” The Georgetown Law Journal 95 (2007): 337–392, 347.

                                    (34.) Brian Gratton and Myron P. Gutmann, “Hispanics in the United States, 1850–1990: Estimates of Population Size and National Origin,” Historical Methods 33 (2000): 142.

                                    (35.) See Joseph W. McKnight, “The Spanish Legacy to Texas Law (Part I),” The American Journal of Legal History 3 (1959): 222–241; and Joseph W. McKnight, “The Spanish Legacy to Texas Law (Part 2),” in The American Journal of Legal History 3 (1959): 299–323.

                                    (36.) U.S. Census Bureau, “The Hispanic Population: 2010,” May 2011.

                                    (37.) Jeffrey S. Passel and D’Vera Cohn, “Unauthorized Immigrant Population Stable for Half a Decade,” September 2016, Pew Research Center.

                                    (38.) Rachel St. John, Line in the Sand: A History of the Western U.S.-Mexico Border (Princeton, NJ, and Oxford: Princeton University Press, 2011).

                                    (39.) Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton, NJ: Princeton University Press, 2004), 75–90.

                                    (40.) Kelly Lytle Hernández, Migra! A History of the U.S. Border Patrol (Berkeley: University of California Press, 2010).

                                    (41.) Gilbert Paul Carrasco, “Latinos in the United States: Invitation and Exile,” in Immigrants Out! The New Nativism and the Anti-Immigrant Impulse in the United States, ed. Juan F. Perea (New York: New York University Press, 1997), 190–204.

                                    (42.) Whalen, “Making of the Puerto Rican Diaspora,” 3.

                                    (43.) David M. Reimers, Other Immigrants: The Global Origins of the American People (New York: New York University Press, 2005), 146–147.

                                    (44.) Deborah Cohen, Braceros: Migrant Citizens and Transnational Subjects in the Postwar United States and Mexico (Chapel Hill: University of North Carolina Press, 2011).

                                    (45.) U.S. Census Bureau, “Hispanic Population.”

                                    (46.) María Cristina García, Havana, U.S.A.: Cuban Exiles and Cuban Americans in South Florida (Berkeley: University of California Press, 1996).

                                    (47.) “Cubans and Cuban Americans,” in Latinos and the Law: Cases and Materials, eds. Richard Delgado, Juan F. Perea, and Jean Stefancic (St. Paul, MN: Thomson/West, 2008), 81–106.

                                    (48.) Mary Ellen Fullerton, “Cuban Exceptionalism: Migration and Asylum in Spain and the United States,” Inter-American Law Review 30 (2004): 158.

                                    (49.) Whom Shall We Welcome? Report of the President’s Commission on Immigration and Naturalization (Washington, DC: U.S. Government Printing Office, 1953).

                                    (50.) Immigration and Nationality Act of 1965, June 30, 1968, United States Statutes at Large (1968) 79: 911.

                                    (51.) Gabriel J. Chin and Rose Cuizon Villazor, eds., The Immigration and Nationality Act of 1965: Legislating a New America (New York: Cambridge University Press, 2015).

                                    (52.) Brian Soucek, “The Last Preference: Refugees and the 1965 Immigration Act,” in The Immigration and Nationality Act of 1965: Legislating a New America, eds. Gabriel J. Chin and Rose Cuizon Villazor (New York: Cambridge University Press, 2015), 171–196.

                                    (53.) María Cristina García, Seeking Refuge: Central American Migration to Mexico, the United States and Canada (Berkeley: University of California Press, 2006), 14.

                                    (54.) García, Seeking Refuge, 96.

                                    (55.) Orantes-Hernandez v. Thornburgh, 919 F. 2d 549 (9th Cir. Cal. 1990).

                                    (56.) American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991).

                                    (57.) Geraldo L. Cadava, Standing on Common Ground: The Making of a Sunbelt Borderland (Cambridge, MA: Harvard University Press, 2013), 198–206.

                                    (58.) Susan Bibler Coutin, “Falling Outside: Excavating the History of Central American Asylum Seekers,” Law and Social Inquiry 36 (2011): 579.

                                    (59.) 110 Stat. 1214; 110 Stat. 3009.

                                    (60.) Daniel Kanstroom, Deportation Nation: Outsiders in American History (Cambridge, MA: Harvard University Press, 2007), 1–20.

                                    (61.) Doris Meisner, Donald M. Kerwin, Muzaffar Chishti, and Claire Bergeron, “Immigration Enforcement in the United States: The Rise of a Formidable Machinery,” Migration Policy Institute, January 2013.

                                    (62.) Carrigan and Webb, “Lynching of Persons,” 411–438.

                                    (63.) Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (Oxford and New York: Oxford University Press, 2009), 121–122.

                                    (64.) Carmen Teresa Whalen, “Colonialism, Citizenship and Community Building in the Puerto Rican Diaspora,” in The Puerto Rican Diaspora: Historical Perspectives, eds. Carmen Teresa Whalen and Victor Vázquez-Hernández (Philadelphia: Temple University Press, 2005), 229.

                                    (65.) “Constitution, League of United Latin American Citizens, 1929,” reprinted in Orozco, No Mexicans, Women, or Dogs, Appendix 3.

                                    (66.) Jennifer Gordon, “Law, Lawyers, and Labor: The United Farm Workers’ Legal Strategy in the 1960s and 1970s and the Role of Law in Union Organizing Today,” University of Pennsylvania Journal of Labor and Employment Law 8 (2005): 1–72.

                                    (67.) Allison Brownell Tirres, “Lawyers and Legal Borderlands,” The American Journal of Legal History 50 (2010): 195.

                                    (68.) Philippa Strum, “‘We Always Tell Our Children They Are Americans’: Mendez v. Westminster and the Beginning of the End of School Segregation,” Journal of Supreme Court History 39 (November 2014): 309.

                                    (69.) Romo v. Laird, No. 21617, Maricopa County Superior Court (1925), cited and discussed in Richard R. Valencia, Chicano Students and the Courts: The Mexican American Legal Struggle for Educational Equality (New York: New York University Press, 2008).

                                    (70.) Mendez v. Westminster School District, 64 F. Supp. 544, 549 (S.D. Cal. 1946).

                                    (71.) Strum, “They Are Americans,” 320.

                                    (72.) Strum, “They Are Americans,” 321.

                                    (73.) Delgado v. Bastrop Independent School District of Bastrop County, docketed, No. 388 (W.D. Tex. June 15, 1948).

                                    (74.) Guadalupe San Miguel, Jr., “Let All of Them Take Heed”: Mexican Americans and the Campaign for Educational Equality in Texas, 1910–1981 (College Station: Texas A&M University Press, 1987), 134.

                                    (75.) San Miguel, “Take Heed”; and Jeffrey F. Sutton, “San Antonio School District v. Rodriguez and Its Aftermath,” Virginia Law Review 94 (2008): 1963–1986.

                                    (76.) Clare Sheridan, “Another White Race: Mexican Americans and the Paradox of Whiteness in Jury Selection,” Law and History Review 21 (Spring 2003), at 110–116.

                                    (77.) Hernandez v. State, 160 Tex. Crim. 72, 78 (Tex. Crim. App. 1952).

                                    (78.) Hernandez v. Texas, 347 U.S. 475, 480–482 (1954); Steven H. Wilson, “Brown over ‘Other White’: Mexican Americans’ Legal Arguments and Litigation Strategy in School Desegregation Lawsuits,” Law and History Review 21 (Spring 2003): 161.

                                    (79.) Hernandez, 478.

                                    (80.) Nancy MacClean, “The Civil Rights Act and the Transformation of Mexican Identity and Politics,” Berkeley La Raza Law Journal, 18 (2007): 127.

                                    (81.) MacClean, “Civil Rights Act,” 127.

                                    (82.) “Testimony of Pete Tijerina,” December 13, 1968, in U.S. Commission on Civil Rights, Hearing Held in San Antonio, TX, December 9–14, 1968 (Washington, DC: U.S. Commission on Civil Rights, 1968), 653–655; and San Miguel, “Take Heed,” 169–172.

                                    (83.) Thomas A. Saenz, “One Advocate’s Road Map to a Civil Rights Law for the Next Half Century: Lessons from the Latino Civil Rights Experience,” 2013 Latinos and the Law Lecture, NYU Review of Law & Social Change 38 (2014): 621.

                                    (84.) Juan F. Perea, “Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English,” Minnesota Law Review 77 (1992): 269–373, 371.

                                    (85.) Michael A. Zuckerman, “Constitutional Clash: When English-Only Meets Voting Rights,” Yale Law & Policy Review 28 (2010): 353–377, 356; and Sandra Del Valle, Language Rights and the Law (Multilingual Matters, 2003), 55.

                                    (86.) Perea, “Demography and Distrust.”

                                    (87.) III New York State Constitutional Convention 3012 (Rev. Record 1916), cited in Katzenbach v. Morgan, 384 U.S. 641, 654 (U.S. 1966).

                                    (88.) Katzenbach v. Morgan, 384 U.S. 641, 653 (1966).

                                    (89.) Castro v. State, 466 P. 2d 244, 243 (Cal. 1970).

                                    (90.) United States v. Berks County, 250 F. Supp. 2d 525, 529 (2003).

                                    (91.) Hernandez v. New York, 500 U.S. 352 (U.S. 1991).

                                    (92.) Pemberthy v. Beyer, 19 F. 3d 857, 858 (3d Cir. 1994).

                                    (93.) Gary Orfield, “Schools More Separate: Consequences of a Decade of Resegregation,” July 2001, The Civil Rights Project, Harvard University.