Ethnicity and the Constitution: Beyond the Black and White Binary Constitution

William & Mary Law Review, Sep 2017

By Juan F. Perea, Published on 02/01/95

A PDF file should load here. If you do not see its contents the file may be temporarily unavailable at the journal website or you do not have a PDF plug-in installed and enabled in your browser.

Alternatively, you can download the file locally and open with any standalone PDF reader:

https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1751&context=wmlr

Ethnicity and the Constitution: Beyond the Black and White Binary Constitution

Ethnicity and the Constitution: Beyond the Black and W hite Binar y Constitution Juan F. Perea 0 0 Juan F. Perea, Ethnicity and the Constitution: Beyond the Black and White Binary Constitution, 36 Wm. & Mary L. Rev. 571 (1995), https://scholarship.law.wm.edu/wmlr/vol36/iss2/6 - ETHNICITY AND THE CONSTITUTION: BEYOND THE BLACK AND WHITE BINARY CONSTITUTION JUAN F. PEREA* I used to stare at the Indian in the mirror. The wide nostrils, the thick lips .... Such a long face-such a long nose-sculpted by indifferent, blunt thumbs, and of such common clay. No one in my family had a face as dark or as Indian as mine. My face could not portray the ambition I brought to it. What could the United States of America say to me? I remember reading the ponderous conclusion of the Kerner Report in the sixties: two Americas, one white, one black-the prophecy of an eclipse too simple to account for the complexity of my face.' I. INTRODUCTION Are there just two Americas, defined by blackness and whiteness, struggling to define some mutual accommodation in society? If we define our Americas by race, are there not other Americas, less frequently recognized, whose ethnic voices must inform our public discourse about race? For too long, the real ethnic complexity of American society has been submerged, hidden by a discussion that counts only race as important and only black or white as race. What of the rest of us, neither black nor white, not fitting neatly into either category? What of "other" Americans of color? This Essay discusses "other" Americans, Latinos and Asian * Copyright © Juan F. Perea (1995). Associate Professor of Law, University of Florida College of Law. The Author would like to thank Professors Mark Brodin, Toni Massaro, Martha Minow, Kenneth Nunn, and Michael Olivas for helpful and insightful comments on earlier drafts of this Essay. I would also like to thank Ms. Alise Johnson, Esq. and Ms. Lynette Eaddy for expert research assistance. I would like to dedicate this Essay to the memory of my friend Dr. George E. Pozzetta, late Professor of History at the University of Florida, whose untimely death deprived us of much collegiality, much humor, and much insight regarding ethnicity in the United States. 1. RICHARD RODRIGUEZ, DAYS OF OBLIGATION 1 (1993). Americans among them, and their treatment under the Constitution.2 The Essay explores the degree of constitutional protection for expressions of ethnicity. Ethnicity has most frequently been considered by the Supreme Court under its concept of "national origin."3 It has become a constitutional truism that the Constitution protects individuals against discrimination because of their national origin.4 The concept of discrimination because of national origin, however, may have outlived its usefulness for many Americans. Most of the discrimination we currently label "national origin" discrimination is actually discrimination because of ethnic characteristics.5 Although the Court has recently referred to a constitutional prohibition against discrimination because of ethnicity or language,6 the Court seems to be using the term "ethnicity" as part of its unclear conception of "race."7 The Court's language reveals and creates confusion and obscures discrimination.8 To the extent that the current constitutional prohibition 2. I do not discuss the constitutional status of Native Americans in this Essay, as such a discussion would be beyond its limited scope. For excellent discussions of the treatment of Indians under American law, see ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST (1990); Robert A. Williams, Jr., Documents of Barbarism: The Contemporary Legacy of European Racism and Colonialism in the Narrative Traditions of Federal Indian Law, 31 ARIZ. L. REV. 237 (1989). 3. Cf., e.g., Lau v. Nichols, 414 U.S. 563 (1974) (interpreting "national origin" provision of Title VI of the Civil Rights Act of 1964 to require language assistance for children whose primary language was Chinese and who spoke no English). With respect to Title VII of the Civil Rights Act and the Constitution, the Court has done virtually nothing to protect ethnicity. See, e.g, Hernandez v. New York, 500 U.S. 352, 355 (1991) (finding the peremptory exclusion of bilingual jurors to be "race-neutral" under the Equal Protection Clause). See generally Juan F. Perea, Ethnicity and Prejudice: Re-Evaluating "NationalOrigin"DiscriminationUnder Title VII, 35 WM. & MARY L. REV. 805 (1994). 4. See Hernandez v. Texas, 347 U.S. 475 (1954). 5. GORDON ALLPORT, THE NATURE OF PREJUDICE 89, 108-109, 113, 131-32 (2d ed. 1988); see Perea, supra note 3. 6. Hernandez v. New York, 500 U.S. at 355. 7. Id. at 371. For an excellent analysis of the Court's varied uses of the term "race" to perpetuate the racial subordination of nonwhite Americans, see Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 STAN. L. REV. 1 (1991). 8. In the related context (...truncated)


This is a preview of a remote PDF: https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1751&context=wmlr

Juan F. Perea. Ethnicity and the Constitution: Beyond the Black and White Binary Constitution, William & Mary Law Review, 2018, Volume 36, Issue 2,