Hernandez V. Texas
Hernandez V. Texas
PROTECTING SUBORDINATED GROUPS
Brown v. Board of Education was not, as almost everyone assumes, the first decision in which the U.S. Supreme Court, newly unified under the leadership of Chief Justice Earl Warren, set to dismantling Jim Crow segregation. That distinction belongs to a jury exclusion case decided two weeks earlier, Hernandez v. Texas. Hernandez is not just the first case in which the Warren Court took on segregation; it is also the greatest early triumph in the Mexican American struggle for civil rights and the first Supreme Court case to extend to Latinos constitutional protection against discrimination, no small matter now that Hispanics constitute the largest minority group in the United States.
After a two-day trial and less than three hours of deliberation, an all-white jury in Jackson County, Texas, in 1951, convicted Pete Hernández of murder and sentenced him to life in prison. The jury’s racial composition was not an aberration for the era. The county stipulated at trial that no person with a Spanish surname had served on a trial or grand jury in more than a quarter century; more than 6,000 jurors had been seated, but in a county over 15 percent Mexican American, none had been from that group. The League of United Latin American Citizens (LULAC), then the most prominent Mexican American civil rights group in the country, agreed to help represent Hernández’s case before the Supreme Court.
A JIM CROW CASE
In deciding whether impermissible discrimination occurred, the Court considered a veritable catalog of Jim Crow oppressions. The Court noted that a restaurant in the county seat prominently displayed a sign saying “No Mexicans Served.” In addition, Jackson County residents routinely distinguished between “whites” and “Mexicans.” Business and civic groups almost entirely excluded Mexican American members. The schools were segregated, at least through the fourth grade, after which almost all Mexican Americans were forced out of school altogether. Finally, the opinion also recorded that on the Jackson County courthouse grounds there were two men’s bathrooms. One was unmarked. The other said “Colored Men” and “Hombres Aquí,” meaning, “Men Here.”
Consider more fully the underlying claim of jury exclusion. All-white juries imperiled Mexican American defendants who, such as Hernández, risked conviction by hostile and biased juries. Moreover, the Mexican American community suffered because white juries rarely and reluctantly convicted whites for depredations against Mexican Americans. Finally, determined opposition to jury exclusion arose because of its symbolism. In the context of Texas race politics, putting Mexican Americans on juries was tantamount to elevating such persons to equal status with whites. The idea that “Mexicans” might judge whites deeply violated Texas’s racial caste system. LULAC hoped Hernandez would help to topple a key pillar of Jim Crow: the belief that whites should judge all, but be judged by none but themselves.
FRUSTRATING A RACIAL ANALYSIS
Even though it challenged a Jim Crow practice, the Supreme Court did not decide Hernandez as a race case. The Court avoided a racial analysis because, strikingly, both parties argued that Mexican Americans were racially white.
As the evidence in Hernandez demonstrates, Anglos in Texas in the 1950s considered Mexicans an inferior race. This belief originated during the Anglo expansion into the Southwest in the early to mid-1800s that culminated in the expropriation of the northern half of Mexico. Initially, Mexicans in the United States, or at least the community’s leaders, resisted their racial subordination by constructing themselves as Mexican nationals and by envisioning an eventual return to Mexico. In the 1920s and 1930s, however, broad segments of the U.S. Mexican community came to see themselves as Americans. During this epoch Mexican community leaders embraced an assimilationist ideology; indeed, the label “Mexican American” emerges from this period and encapsulates the effort to both retain pride in the community’s Mexican cultural origins and to express an American national identity. Inseparable from this new assimilationist identity, however, was an engagement with American racial logic: on this score the community leaders argued that Mexican Americans were white.
These ideas found clear expression in LULAC’s arguments in Hernandez v. Texas. As in other cases, LULAC followed what it termed its “other white” legal strategy, protesting not segregation itself, but the inappropriate segregation of Mexican Americans as a white racial group. Thus, LULAC objected in its brief to the Supreme Court that, “while legally white,” in Jackson County “frequently the term white excludes the Mexicans and is reserved for the rest of the non-Negro population” (Brief of Petitioner at 38, Hernandez v. Texas, 347 U.S. 475, No. 406). Hernández’s lawyers did not argue principally that segregation was legally wrong, but that Mexican Americans were legally white.
Meanwhile, Texas also adopted the claim that Mexican Americans were white—though to preserve segregation. LULAC and others had brought at least seven challenges to jury exclusion in Texas before Hernandez. In the initial cases Texas courts relied on testimony that Mexican Americans were “ignorant” or “not intelligent enough” in ruling that no Mexican Americans were qualified for jury service. By the late 1940s, however, the Texas courts shifted to a new approach. Seeking to turn LULAC’s arguments back against them, the courts began to hold that there was no discrimination because, like every jury member, Mexican Americans were white. As the decision under appeal in Hernandez reasoned, “Mexicans are white people.… The grand jury that indicted [Hernández] and the petit jury that tried him being composed of members of his race, it cannot be said … that appellant has been discriminated against in the organization of such juries” [ Hernandez v. Texas, 251 S.W.2d 531, 536 (Tex. Crim. App. 1951)].
PROTECTING SUBORDINATED GROUPS
Confronted with contending parties who nevertheless agreed that Mexican Americans were white, the Supreme Court jettisoned an explicitly racial analysis. The case, Warren said, did not turn on “race or color.” However, Warren did not then attempt to decide the case in terms of some other form of difference, for instance national origin, ancestry, or ethnicity. Rather, the Court approached this case as concerning group subordination generally. “Community prejudices are not static,” Warren wrote, “and from time to time other differences from the community norm may define other groups which need [constitutional] protection.” For Warren, a group’s standing was “a question of fact,” something that “might be demonstrated by showing the attitude of the community” (Hernandez v. Texas, 347 U.S. at 478, 479).
In considering whether the Fourteenth Amendment commanded the Court’s intervention, Warren framed the core question as this: Are social practices based on notions of racial difference being used to subordinate? To answer this question, the Court cataloged the Jim Crow system that defined race relations in Jackson County. Hernandez struck down jury discrimination against Mexican Americans not because they were nominally a race, but because in the context of mid-century Texas, Mexicans were a subordinated group.
SEE ALSO Brown v. Board of Education, 1954 ; Civil Rights; Colonialism; Warren, Earl
Haney López, Ian. 1997. Race, Ethnicity, Erasure: The Salience of Race. California Law Review 85 (October): 1143–1211.
Haney López, Ian. 2003. Racism on Trial: The Chicano Fight for Justice. Cambridge, MA: Belknap Press of Harvard University Press.
Haney López, Ian. 2005. Race and Colorblindness after Hernandez and Brown. Chicano-Latino Law Review 25: 61–76.
Hernandez v. Texas, 251 S.W.2d 531 (Tex. Crim. App. 1952).
Hernandez v. Texas, 347 U.S. 475 (1954). http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=347&invol=475.
Olivas, Michael A., ed. 2006. “Colored Men and Hombres Aqui”: Hernandez v. Texas and the Emergence of Mexican American Lawyering. Houston, TX: Arte Publico Press.
Ian F. Haney López