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
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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)