Hostname: page-component-586b7cd67f-2brh9 Total loading time: 0 Render date: 2024-11-23T19:11:33.876Z Has data issue: false hasContentIssue false
  • English
  • Français

“Another White Race:” Mexican Americans and the Paradox of Whiteness in Jury Selection

Published online by Cambridge University Press:  28 October 2011

Clare Sheridan
Get access Rights & Permissions [Opens in a new window]

Extract

In 1954, seventy-four years after the U.S. Supreme Court held that African Americans could not be banned from jury service by statute, and fifty-four years after it ruled that they could not be purposely excluded from venires due to their “race or color” through court, executive, or administrative action, the Court found that Pete Hernandez had been denied equal protection of the laws under the Fourteenth Amendment. His constitutional rights were violated because of the de facto, systematic exclusion of Mexican Americans from the pool of potential jurors—and thus juries—in Jackson County, Texas.

Type
Forum: Whiteness and Others: Mexican Americans and American Law
Information
Law and History Review , Volume 21 , Issue 1 , Spring 2003 , pp. 109 - 144
Copyright
Copyright © the American Society for Legal History, Inc. 2003

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Strauderv. West Virginia, 100 U.S. 303 (1880) and Carterv. Texas, 177 U.S. 442 (1900).

2. Hernandez v. Texas, 251 S.W. 2d 531 (Tex. Crim. App. 1952), rev'd, 347 U.S. 475 (1954). The appeal rested on an equal protection claim. The Sixth Amendment right to trial by an impartial jury was not incorporated into the Fourteenth Amendment to apply to the states, as well as to the federal level, until Duncan v. Louisiana, 391 U.S. 145 (1968).

3. Montejano, David, Anglos and Mexicans in the Making of Texas, 1836–1986 (Austin: University of Texas Press, 1987).Google Scholar For a contemporary account of Mexican Americans' loss of status and political power in California, see Burton, Maria Amparo Ruiz de, The Squatter and the Don, ed., Sanchez, Rosaura and Pita, Beatrice (Houston: Arte Publico Press, 1992).Google Scholar

4. Hall, Linda B. and Coerver, Don C., Revolution on the Border: The United States and Mexico, 1910–1920 (Albuquerque: University of New Mexico Press, 1988).Google ScholarReisler, Mark, By the Sweat of Their Brow: Mexican Immigrant Labor in the United States, 1900–1940 (Westport, Conn.: Greenwood Press, 1976), 152.Google Scholar

5. Note that these figures are from government statistics and do not include the many immigrants who crossed illegally to avoid payment of taxes See Reisler, Sweat of Their Brow, 183, n. 4.

6. Act of May 26, 1924, chap. 190, 43 Stat. 153. This act, targeted at eliminating immigration from southern and eastern Europe, reduced immigration to 2 percent of the nationals resident in the 1890 census and required five years of residence in a western hemisphere nation before immigrating. The bill also required all immigrants to pay a $10 visa fee, in addition to the existing $8 head tax, and to comply with the provisions of prior statutes, including being literate and not likely to become a public charge.

7. Act of March 26, 1790, chap. III, 1, 1 Stat. 103 and Naturalization Act of July 14, 1870 (16 Statutes-at-Large 254).

8. See also Hernandez, Jose Amaro, Mutual Aid for Survival: The Case of the Mexican American (Malabar, Fla.: Robert E. Krieger Publishing Co., 1983), 73.Google Scholar

9. Taylor, Paul S., An American-Mexican Frontier: Nueces County, Texas (Chapel Hill: University of North Carolina Press, 1934), 247.Google Scholar

10. See Hoffman, Abraham, Unwanted Mexican Americans in the Great Depression: Repatriation Pressures, 1929–1939 (Tucson: University of Arizona Press, 1974).Google Scholar

11. Sanchez Papers (George I), 1982–1972. “Letter from Texas Civil Rights Fund to Modesto Gomez, LULAC, December 16, 1943,” box 68, folders 4 and 5, entitled Texas Civil Rights Fund 1943 (Benson Latin American Collection, University of Texas at Austin). See Montejano, Anglos and Mexicans, 268, for a discussion of the Good Neighbor Policy.

12. Montejano, Anglos and Mexicans, 268.

13. Norris v. Alabama, 294 U.S. 587 (1935). Sanchez Papers (George I), 1982–1972. “Brief on the Issues Relating to Discrimination on Account of Race in the Selection of Grand and Petit Juries,” box 30, folder 15, entitled Jury Service 1943 (Benson Latin American Collection, University of Texas at Austin).

14. Sanchez Papers (George I), 1982–1972. “Letter from Texas Civil Rights Fund to Robert Marshall Civil Liberties Trust, June 1, 1943,” box 68, folders 4 and 5, entitled Texas Civil Rights Fund 1943 (Benson Latin American Collection, University of Texas at Austin).

15. Westminster School District vs. Mendez, 161 Fed. 2d 774 (1946), Clifton v. Puente, 218 S.W. 2d 272 (1949), Terrell Wells Swimming Pool v. Rodriguez, 182 S.W. 2d 824 (1944). Sanchez v. Texas, 243 S.W. 2d 700 (1951); Rogers v. Texas, 236 S.W. 2d 141 (1951); Bustillos v. Texas, 213 S.W. 2d 837 (1948); Salazar v. Texas, 193 S.W. 2d 211 (1946); Sanchez v. Texas, 181 S.W. 2d 87 (1944); Lugo v. Texas, 124 S.W. 2d 344 (1939); Carrasco v. Texas, 95 S.W. 2d 433 (1936); Ramirez v. Texas, 40 S.W. 2d 138 (1931).

16. “Householder” means the head of a family who rents a room within the county.

17. Sanchez Papers, “Brief,” box 30, folder 15.

18. Hernandez v. Texas, 476.

19. Kibbe, Pauline R., Latin Americans in Texas (Albuquerque: University of New Mexico Press, 1946), 229.Google Scholar This figure does not distinguish between citizens and noncitizens. Mexican Americans were not categorized racially in the census except in 1930, so accurate statistics are difficult to compile.

20. I consciously use the term “right” in regard to jury service By the 1950s, jury service was considered a right of citizenship. The Supreme Court ruled illegitimate the de facto exclusion of African Americans in 1935, upheld this interpretation in several cases in the 1940s, and extended it by stating that defendants had a right to a trial by an impartial jury drawn from a cross-section of the community. See Smith v. Texas, 311 U.S. 128 (1940), Glasser v. U.S., 315 U.S. 60 (1942), Hill v. Texas, 316 U.S. 400 (1942), and Cassell v. Texas, 339 U.S. 282 (1950). Several cases in the 1920s also held that women must have the opportunity to serve on juries. See State v. Walker, 185 N.W. 619 (1921), People v. Barltz, 180 N.W. 423 (1920), and Palmer v. State, 150 N.E. 917 (1926), cited in Gretchen Ritter, “A Jury of her Peers: Citizenship and Women's Jury Service after the Nineteenth Amendment,” paper presented at the Western Political Science Association, Tucson, Arizona, 1997. Many states automatically granted women an exemption, so their participation rate was not high until the late 1960s. Furthermore, there was a movement by Congress to standardize the qualifications of jurors, eliminate prejudicial exemptions, and increase oversight by the Supreme Court. See Goodman, Ernest P., “Notes and Recent Decisions,” California Law Review 35 (1947): 142–46CrossRefGoogle Scholar, and McNabb v. U.S., 318 U.S. 332 (1942).

21. Alonso Perales, El mexico americano y la politica del sur de Texas: comentarios (published by the author, 1931), 11 (my translation).

22. Ibid., 8.

23. Lawyers for the appellant, Gustavo Garcia and Carlos Cadena, printed a summary of the case themselves, A Cotton Picker Finds Justice!: The Saga of the Hernandez Case, ed. Ruben Munguia (n.d., n.p.). Cadena's part was entitled “Legal Ramifications of the Hernandez Case: A Thumbnail Sketch,” and Garcia's, “An Informal Report to the People.”

24. Act of March 1, ch. 114, 4, 18 Stat (pt. 3), rev'd, 109 U.S. 3 (1883). In Race, Crime, and the Law (New York: Pantheon Books, 1997), Randall Kennedy notes that only one case, Ex parte Virginia, 100 U.S. 330 (1880), tested this law.

25. Strauder v. West Virginia, 100 U.S. 303 (1880). Ibid., 308. “The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may in other respects be fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority and a stimulus to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others. The right to a trial by jury is guaranteed to every citizen of West Virginia by the Constitution of that State, and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure.” Ibid., 307–8. However, the Court held that states could specify other qualifications for jurors.

26. Virginia v. Rives, 100 U.S. 313 (1880).

27. Neal v. Delaware, 103 U.S. 370 (1881).

28. Carter v. Texas, 177 U.S. 442 (1900). Ibid., 447.

29. Law scholar Benno Schmidt notes that the U.S. Supreme Court only reversed decisions when faced with clear violations of the Sixth Amendment guarantees for a fair trial. Schmidt, Benno C. Jr, “Juries, Jurisdiction, and Race Discrimination: The Lost Promise of Strauder v. West Virginia,” Texas Law Review 61 (1983): 1401–99, 1470.Google Scholar In most cases, appellate courts deferred to the lower courts' findings of facts, as reviewing evidence did not fall within their jurisdiction.

30. Norris v. Alabama, 588.

31. Impartiality in Norris's trial was challenged partly because of the extremely prejudicial circumstances of his previous trial, Powell v. Alabama, 287 U.S. 45 (1932), which was reversed by the Supreme Court on due process grounds because effective counsel was not provided. The trials involving Norris attracted much publicity because he was one of the nine “Scottsboro boys” charged with raping two white women.

32. Smith v. Texas, 311 U.S. 128 (1940); Hill v. Texas, 316 U.S. 400 (1942); Cassell v. Texas, 339 U.S. 282 (1950); and Ross v. Texas, 341 U.S. 918 (1951).

33. Juarez v. Texas, 277 S.W. 1091 (1925).

34. Hernandez v. Texas, 478.

35. Lugo v. Texas, 344.

36. Ibid., 348.

37. Ibid., 346.

38. López, Ian F. Haney, “Race, Ethnicity, Erasure: The Salience of Race to LatCrit Theory,” University of California Law Review 85 (1997): 1166–70.Google Scholar

39. In Ramirez, for example, the county sheriff and tax collector stated that “he did not think the Mexicans of Menard county were intelligent enough or spoke English well enough or knew enough about the law to make good jurors, besides their customs and ways were different from ours and that for that reason he did not consider them well enough qualified to serve as jurors.” Ramirez v. Texas, 139.

40. Lugo v. Texas, 348.

41. However, “foreignness” has continued to be an element of the racialization of “other non-whites.” See Chang, Robert and Aoki, Andrew, “Centering the Immigrant in the Inter/National Imagination,” University of California Law Review 85 (1997): 1395–1447.CrossRefGoogle Scholar

42. See, generally, Allsup, Vernon, The American G.I. Forum: Origins and Evolution (Austin: Center for Mexican American Studies), 1982.Google Scholar

43. Sanchez v. Texas (1944), 87. The case was authored by Judge Krueger, who had also written Lugo. Krueger changed his reasons for denying that discrimination existed several times. He wrote the Bustillos decision four years later (after Salazar, which ruled on the basis of the nationality argument), which returned to the “Mexican race” argument ruling that the appellant had not proved there were enough qualified Mexican Americans. This case cited Sanchez and Lugo, ignoring Norris. The district court judge, W. D. Howe, also authored Carrasco.

44. Ibid., 90.

45. Hernandez v. State, 535. The subsequent cases are Salazar v. Texas, 193 S.W. 2d 211 (1946), Sanchez v. Texas, 243 S.W. 2d 700 (1951), and Rogers v. Texas, 236 S.W. 2d 141 (1951).

46. Ibid., 533.

47. Ibid., 536. The Supreme Court rejected the claim to proportional representation in 1880 in Virginia v. Rives. Rives claimed that neutral procedures could not provide a black defendant an impartial jury due to white prejudice, and therefore that one-third of the jury should be black. See Abramson, Jeffrey, We, the Jury: The Jury System and the Ideal of Democracy (New York: Basic Books, 1994), 105–7.Google Scholar

48. Hernandez v. State, 535.

49. Salazar v. Texas, 212.

50. Sanchez v. Texas (1951), 700.

51. Ibid., 701. The Texas Court of Criminal Appeals had made this argument only twice previously, once by the author of Sanchez v. Texas, Judge Beauchamp, in Salazar v. Texas.

52. The literature on Mexican American civil rights efforts offers short summaries of Hernandez v. Texas, but does little analysis of it or of its predecessors. See Richard Delgado and Palacios, Vicky, “Mexican Americans as a Legally Cognizable Class under Rule 23 and the Equal Protection Clause,” Notre Dame Law Review 50 (1974): 393–118, 395Google Scholar; Greenfield, Gary A. and Kates, Don B. Jr, “Mexican Americans, Racial Discrimination, and the Civil Rights Act of 1866,” California Law Review 63 (1975): 662–731, 686–87CrossRefGoogle Scholar; Marquez, Benjamin, LULAC: The Evolution of a Mexican American Political Organization (Austin: University of Texas Press, 1993), 55Google Scholar; Rangel, Jorge and Alcala, Carlos, “Project Report: De Jure Segregation of Chicanos in Texas Schools,” Harvard Civil Rights-Civil Liberties Law Review 7 (1972): 307–91, 342–14Google Scholar; and Leon, Arnoldo de, Mexican Americans in Texas (Arlington Heights, Ill.: Harlan Davidson, Inc., 1993), 116–17.Google Scholar See Haney López, “Race, Ethnicity, Erasure,” 1143–1211. This is the first article to focus attention on Hernandez.

53. According to testimony, fourteen percent of the population, eleven percent of males over twenty-one, and six to seven percent of freeholders had Spanish surnames. Further, according to the 1950 census 1,738 of the 1,865 Spanish surnamed individuals were native born (Hernandez v. Texas, 480, n. 12, and 481).

54. This summary is based on Carlos Cadena's brief to the Supreme Court. U.S. Court, Supreme, Records and Briefs, Pete Hernandez, Petitioner vs. the State of Texas (Washington: Judd and Detweiler, Printers, 1953)Google Scholar, hereafter cited as Records and Briefs. Cadena and Gus Garcia presented the case before the Supreme Court and were aided in writing the brief by Maury Maverick, John Herrera, James DeAnda, and Chris Alderete. These men, along with a few others like Alonso Perales, George Sanchez, Ed Idar, Hector Garcia, and M. C Gonzalez, led the key civil rights battles. Gonzalez brought Lugo v. Texas (1939) and Salazar v. Texas (1946) to trial, while Herrera and DeAnda brought Sanchez v. Texas (1951) to trial.

55. Records and Briefs, 38–40.

56. Ibid., 37 (emphasis added).

57. Ngai, Mae, “The Architecture of Race in American Immigration Law: A Reexamination of the Immigration Act of 1924,” Journal of American History 86 (June 1999): 67–92.CrossRefGoogle Scholar

58. David Roediger, “Whiteness and Ethnicity in the History of ‘White Ethnics’ in the United States,” Roediger, in, Towards the Abolition of Whiteness (New York: Verso, 1994), 182.Google Scholar

59. Ibid., 108.

60. Salvatierra, 33 S.W. 2d 790 (1930). The court did allow “separation” for ostensibly legitimate pedagogical purposes, such as the inability to speak English, which rendered the impact of this decision nil until Mendez v. Westminster School District, 161 Fed. 2d 774 (CA-1947), and, in Texas, Delgado v. Bastrop Independent School District, 388 W.D. Texas (1948).

61. Independent School District v. Salvatierra, 795, emphasis added.

62. Taylor, An American-Mexican Frontier, 268–69. Taylor's interviews and observations provide an invaluable primary resource for this era.

63. In 1930 the census classified Mexicans as a distinct race. See Garcia, Mario, “Mexican Americans and the Politics of Citizenship: The Case of El Paso, 1936,” New Mexico Historical Review 59 (1984): 187–204, 199Google Scholar, for an account of their successful fight to have the category eliminated and be reclassified as white.

64. Taylor, An American-Mexican Frontier, 268. Mexicans and blacks worked alongside each other in the cotton fields of Texas. See Foley, Neil, The White Scourge (Berkeley: University of California Press, 1997)Google Scholar, for the relationships between blacks and Mexicans, and whiteness.

65. Cadena, “Legal Ramifications,” np. To be fair, Cadena also called for unity with other “progressive” minority groups and rejected segregating themselves from other efforts to promote racial justice.

66. Hernandez v. State, 536.

67. Cadena, “Legal Ramifications,” np.

68. Haney López, “Race, Ethnicity, Erasure,” 1205. The strategy of declaring assertions of difference irrelevant, and protecting equality by prohibiting the use of racial language, is eerily similar to the current rhetoric of the affirmative action debates.

69. Records and Briefs, 6.

70. Ibid., 14.

71. Ibid., emphasis in the original.

72. Records and Briefs, 100–101.

73. Ibid., 26.

74. Hernandez v. Texas, 477. Strauder v. West Virginia made mention of national origin: “Nor, if a law be passed excluding all naturalized Celtic Irishmen, would there be any doubt of its inconsistency with the spirit of the Amendment” (308). See also Yick Wo v. Hopkins, 118 U.S. 356 (1886), in which the Court found that the Fourteenth Amendment's provisions “are universal in their application, to all persons under the territorial jurisdiction, without regard to any differences of race, or color, or of nationality” (Records and Briefs, 106).

75. Hernandez v. Texas, 478.

76. Ibid., 482.

77. Ibid.

78. See Martinez, George, “Legal Indeterminacy, Judicial Discretion and the Mexican-American Litigation Experience: 1930–1980,” University of California at Davis Law Review 27 (1994): 555.Google Scholar

79. See, generally, Greenfield and Kates, “Civil Rights Act,” 680–84, and n. 92, for the Texas statutes.

80. The very apt phrase “in-between peoples” is taken from Barrett, James and Roediger, David, “In-between Peoples: Race, Nationality, and the ‘New Immigrant’ Working Class,” Journal of American Ethnic History (Spring 1997): 3–44Google Scholar See López, Ian F. Haney, White by Law: The Legal Construction of Race (New York: New York University Press, 1996)Google Scholar for discussion of the naturalization cases.

81. Mexicans' indeterminate status entitled them to greater protection than other groups, such as blacks and Chinese, and afforded them a basis from which to assert legal claims. Yet it hindered efforts to secure legal remediation for discrimination. Those who appeared white also sometimes were accepted as equals by whites, despite knowledge of their “race.” This was determined, however, at individual Anglos' discretion.

82. See the growing literature interrogating whiteness, including Roediger, David, The Wages of Whiteness (New York: Verso, 1991)Google Scholar; Roediger, “Whiteness and Ethnicity” Allen, Theodore, The Invention of the White Race (New York: Verso, 1994)Google Scholar; Saxton, Alexander, The Rise and Fall of the White Republic (New York: Verso, 1990)Google Scholar; and Delgado, Richard and Stefanie, Jean, Critical White Studies (Philadelphia: Temple University Press, 1997).Google Scholar

83. Records and Briefs, 38, emphasis added.

84. López, Ian F. Haney, “The Social Construction of Race,” in Critical Race Theory: The Cutting Edge, ed. Delgado, Richard (Philadelphia: Temple University Press, 1995), 547.Google Scholar

85. 81 F 337 (1897). Treaty of Guadalupe Hidalgo, Article VIII, Library of Congress Online, Feb 2, 1998, http://lcweb.loc.gov/exhibits/ghtreaty. Article IX noted that Mexicans who elected to become U.S. citizens by remaining within the acquired territory “shall be included into the union of the United States and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States.” The Article also guaranteed the enjoyment of liberty and property of these residents in the meantime. This served as a basis for challenging the citizenship rights of Mexican Americans. In California, their status as U.S. citizens was resolved by People v. de la Guerra, 40 Cal. 311 (1870). Their citizenship status in Texas remained contested because the U.S Supreme Court ruled in McKinney v. Saviego, 18 How. 235 (1856), that the treaty did not apply to Texas. This case served as the basis for conflicting land claims until 1923 when an international conference was convened to settle the question. However, the treaty was most often interpreted as serving as de facto naturalization. See Castillo, Richard Griswold del, The Treaty of Guadalupe Hidalgo (Norman: University of Oklahoma Press, 1990).Google Scholar

86. In re Rodriguez, 345.

87. Ibid., 347.

88. Ibid.

89. Ibid., 338–44. See In re Ah Yup, 1 F 223 (1878), In re Camille, 6 F 256 (1880), Elk v. Wilkins, 112 U.S. 94 (1884).

90. Ibid., 349.

91. Ibid., 350–55.

92. The legitimacy of U.S. citizens who were descendants of other conquered nations, such as Filipinos, Native Americans, and Puerto Ricans, was also challenged. See Kaplan, Amy and Pease, Don, eds., Cultures of United States Imperialism (Durham, N.C.: Duke University Press, 1993).Google Scholar

93. Hernandez was decided just two weeks prior to the landmark Brown v. Board of Education.

94. Marquez, LULAC, chap. 2, argues that some LULAC members believed racism to be the chief obstacle hindering Mexican American social and economic mobility.

95. Garcia, “Informal Report,” n.p.

96. Taylor found this attitude common among prominent Mexican Americans. One professed in regard to social discrimination, “The Mexican consul belongs to the best golf club and society club, so it shows that if we have people prepared for it they will be accepted without discrimination…. If prepared, you have got a chance the same as anyone else in these United States…. One of the worst hated people in this country is a Jew, but he has prepared himself, so he is way up now.” An American-Mexican Frontier, 265.

97. Roediger, “Whiteness and Ethnicity.”

98. Foley, Neil, “Becoming ‘Hispanic’: Mexican Americans and the Faustian Pact with Whiteness,” in Reflexiones 1997: New Directions in Mexican American Studies, ed., Foley, Neil (Austin: University of Texas Press), 1998.Google Scholar

99. Marquez, LULAC.

100. Taylor, An American-Mexican Frontier, 268.

101. Hale, Grace, Making Whiteness: The Culture of Segregation in the South, 1890–1940 (New York: Pantheon Books, 1998), xi.Google Scholar

102. Shklar, Judith, American Citizenship: The Quest for Inclusion (Cambridge: Harvard University Press, 1991), 39.Google Scholar

103. Hernandez v. State, 535.

104. This section is influenced by Cheryl Harris' article, “Whiteness as Property,” Harvard Law Review 106 (1993): 1709–91, connecting whiteness with property rights.

105. Records and Briefs, 108–9.

106. Ibid, 106.

107. See Beeton, Beverly, Women Vote in the West: The Women Suffrage Movement, 1869–1896 (New York: Garland, 1996)Google Scholar for why women were granted the vote in Utah, Colorado, Wyoming, and Idaho and Raskin, Jamin, “Legal Aliens, Local Citizens: The Historical, Constitutional, and Theoretical Meanings of Alien Suffrage,” University of Pennsylvania Law Review 141 (1993): 1391–1470CrossRefGoogle Scholar on aliens.

108. Perea, Juan F., “Hernandez v. New York: Courts, Prosecutors, and the Fear of Spanish,” Hofstra Law Review 21 (1992): 1–61, 57.Google Scholar

109. Fukurai, Hiroshi, Butler, Edgar W., and Krooth, Richard, Race and the Jury: Racial Disenfranchisement and the Search for Justice (New York: Plenum Press, 1993)CrossRefGoogle Scholar, chaps. 2 and 3.

110. Hernandez v. Texas, 482.

111. See Abramson, We, the Jury, chap. 13; Constable, Marianne, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge (Chicago: University of Chicago Press, 1994), chap. 2Google Scholar; and Fukurai, Butler, and Krooth, Race and the Jury, for discussions of how these issues are represented today.

112. U.S. Commission on Civil Rights, Mexican Americans and the Administration of Justice in the Southwest (Washington, D.C.: U.S. Government Printing Office, 1970), 37–38.Google Scholar

113. Hernandez v. New York, 111 S.Ct. 1859 (1991), 359–63.

114. Records and Briefs, 3. This comparison is problematic because the rules governing peremptory challenges and challenges for cause differ. However, for the purpose of reflection on the broader issues of neutrality and colorblindness, exploring this avenue could be fruitful. It can illuminate similarities among ways of thinking about race that escape narrow rulings. Comparison of early jury discrimination cases and current debates over jury selection procedures, the legitimacy of peremptory challenges, and jury nullification should be pursued. See, for example, Perea, “Hernandez v. New York” and Fukurai, Butler, and Krooth, Race and the Jury.

115. Lawrence, Charles, “The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism,” Stanford Law Review 39 (1987): 317–88.Google Scholar

116. Hernandez v. New York, 1873–75.

117. One could argue that they were treated as a race in Clifton v. Puente, 218 S.W. 2d 272 (1949). Although the decision used the terminology “Mexican descent” to refer to Mexican Americans, the court concluded that racial restrictive covenants in real estate contracts were precluded by the Equal Protection Clause of the Fourteenth Amendment (274). But the Supreme Court did not discuss Mexican Americans' status as a group. Cadena, who also worked on Clifton, noted its correspondence to Hernandez (Records and Briefs, 106), but did not argue that Mexican Americans should be protected as a racial group. The Supreme Court merely observed that the amendment had been construed in Clifton to protect people of Mexican descent (Hernandez v. Texas, 478, n. 6).