1893: “The statute defined colored as ‘all persons of mixed blood descended from Negro ancestry. Thus Mexicans in the state were segregated by custom rather than by law…” (Foley)

1893: state segregation law for schools still defines “colored” as “Negro ancestry” / BB&W, 129

Second, Plessy v. Ferguson did not apply to Mexicans, inasmuch as they were officially recognized as “white.” In Texas, for example, the legislature passed a law in 1893, six years before the Supreme Court mandated “separate but equal” facilities for blacks and whites, that required separate schools for the state’s white and “colored” children. The statute defined colored as “all persons of mixed blood descended from Negro ancestry.”[11] Thus Mexicans in the state were segregated by custom rather than by law, and school districts defended the practice on the grounds that Mexican children did not speak English and spent part of the school year with their families as migrant agricultural workers. When Mexican American civil rights activists were able to show that Mexican children were arbitrarily segregated, regardless of English-language facility, the courts generally ruled in favor of the plaintiff Mexican Americans.[12]

Neil Foley, "Partly Colored or Other White: Mexican Americans and Their Problem with the Color Line," in Beyond Black and White: Race, Ethnicity, and Gender in the U.S. South and Southwest, ed. Stephanie Cole and Alison M. Parker, 123-144 (College Station: Texas A&M University Press, 204), 129.

 

  1. [11]C. H. Jenkins, The Revised Civil Statutes of Texas, 1925, Annotated, (Austin: H. P. N. Gammel Book Co., 1925), vol. 1, p. 1036.
  2. [12]See Guadalupe San Miguel, Jr., “The Origins, Development, and Consequences of the Educational Segregation of Mexicans in the Southwest,” in Chicano Studies: A Multidisciplinary Approach, ed. by Eugene E. García, Francisco Lomeli, and Isidro Ortiz (New York: Teachers College Press, 1984), pp. 195-208.

“because they are not of our race, which is unworthy, as they say, to belong to the human species” (Cortina, qtd. in Carrigan and Webb)

Many Mexicans had indeed turned to “banditry” as a result of white mob violence…

Another Mexican who greatly angered whites was Juan Cortina. Between 1859 and 1873, Cortina and his gang engaged in a series of bitter and bloody confrontations with the U.S. military along the Texas border. Cortina proclaimed to be an instrument of divine retribution sent to avenge those murdered and dispossessed by whites. Cortina reserved particular wrath for the local and state authorities who continued to tolerate the lynching of his people. He once observed: “There are to be found criminals covered with frightful crimes, but they appear to have impunity until opportunity furnish [sic] them a victim; to these monsters indulgence is shown, because they are not of our race, which is unworthy, as they say, to belong to the human species.”[74] Scholars have described Murrieta, Vásquez and Cortina as “social bandits” who raided in retaliation against the forces of racism that repressed Mexicans throughout the Southwest.[75]

Mexicans’ retaliatory actions often served only to compound racial conflict. Retaliatory raids provoked whites to further reprisals against Mexicans. This in turn strengthened the bitter resolve of the recalcitrant Mexicans. A vicious circle of violence and retribution was therefore created. In October, 1859, Texas Rangers lynched Thomas Cabrera, a leading member of the Cortina gang. An enraged Cortina immediately launched an assault on white settlers near Brownsville, Texas.[76] The persistence of these raids provided whites with an excuse to condemn all Mexicans as dangerously criminal people whose presence in the Southwest posed a continued threat to white settlement. Francisco P. Ramírez of the Spanish-language newspaper El Clamor Público understood the danger of retaliatory action. He wrote on July, 1856, that “the Mexicans are growing tired of being run over and having injustices committed against them; but to take up arms to redress their grievances, this is an act without reason.”[77]

William D. Carrigan and Clive Webb, "Muerto por Unos Desconocidos (Killed by Persons Unknown): Mob Violence against Blacks and Mexicans," in Beyond Black & White: Race, Ethnicity, and Gender in the U.S. South and Southwest, edited by Stephanie Cole and Alison M. Parker (College Station: Texas A&M University Press, 2004), 54-55.

 

  1. [74]S. Dale McLemore, Racial and Ethnic Violence in America, second edition (Newton, Mass.: Allyn and Bacon, Inc., 1983), pp. 219-21; Jerry D. Thompson, ed., Juan Cortina and the Texas-Mexico Frontier 1859-1877 (El Paso: University of Texas at El Paso Press, 1994), p. 6; Jerry D. Thompson, “The Many Faces of Juan Nepomuceno Cortina,” South Texas Studies 2 (1991): 88, 92; Webb, Texas Rangers, p. 176.
  2. [75]Social banditry and Mexican outlaws are discussed in Pedro Castillo and Albert Camarillo, eds., Furia y Muerte. John Boessenecker believes that most Mexican bandits were not social bandits. See Boessenecker, “Pio Linares: California Bandido,” The Californians 5, no. 6 (Nov.-Dec. 1987): 34-44.
  3. [76]Matt S. Meier and Feliciano Rivera, The Chicanos: A History of Mexican Americans (New York: Hill and Wang, 1972), pp. 101-102; Thompson, “Many Faces,” p. 89; Thompson, Juan Cortina, p. 102, notes 1 and 3; Lyman L. Woodman: Cortina: Rogue of the Rio Grande (San Antonio, Tex.: Naylor, n.d.), pp. 21-22; “Report on the Accompanying Documents of the Committee on Foreign Affairs on the Relations of the U.S. with Mexico,” U.S. House, No. 701, 45th Cong., 2nd sess., Serial Set 1824, pp. 75-76.
  4. [77]El Clamor Público, July 26, 1856. English translation from Zaragosa Vargas, ed., Major Problems in Mexican American History (Boston and New York: Houghton Mifflin Company, 1999), p. 147.

Haney Lopez, WHITE BY LAW, further discussion and reading references on In re Rodriguez (1897)

White By Law, p. 242. Notes to Chapter 3.

35. In re Rodriguez, 81 F. 337, 349 (W.D. Tex. 1897).

36. Id. at 354. Despite the admission of Rodriguez to citizenship, Mexicans in the Southwest suffered considerable legal repression in the decades after the U.S. conquest of that region. See generally RODOLFO ACUñA, OCCUPIED AMERICA: A HISTORY OF CHICANOS (3rd. ed. 1988). The history of legal resistance to such repression is examined in George Martínez, Legal Indeterminacy, Judicial Discretion and the Mexican-American Litigation Experience: 1930-1980, 27 U.C. DAVIS L. REV. 555 (1994).

37. The Supreme Court subsequently drew into question the holding in Rodriguez. Morrison v. California, 291 U.S. 82, 95 n.5 (1933). The Court wrote: “Whether a person of [Mexican] descent may be naturalized in the United States is still an unsettled question. The subject was considered in Matter of Rodriguez, but not all that was there said is consistent with later decisions of this court.” For a commentator’s criticism of Rodriguez on the grounds that Mexicans are not “white persons,” see Gold, supra, at 499-501.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 242.

Other Readings to Track Down from Haney Lopez footnotes

‘Other Non-Whites’ reading ref.

White By Law, p. 238, Ch. 2, n. 36. Neil Gotanda contends that separate racial ideologies function with respect to “other non-Whites,” meaning non-Black racial minorities such as Asians, Native Americans and Latinos. Neil Gotanda, “Other Non-Whites” in American Legal History: A Review of Justice at War, 85 COLUM. L. REV. 1186 (1985). Gotanda explicitly identifies the operation of this separate ideology in the Supreme Court’s jurisprudence regarding Asians and citizenship. Neil Gotanda, Asian American Rights and the “Miss Saigon Syndrome,” ASIAN AMERICANS AND THE SUPREME COURT: A DOCUMENTARY HISTORY 1087, 1096-1097 (Hyung-Chan Kim ed., 1992).

Mexican Americans as a legally cognizable class / Civ. Rights Act of 1866.

White By Law, p. 251, Ch. 5, n. 20. See, e.g., Richard Delgado and Vicky Palacios, Mexican Americans as a Legally Cognizable Class Under Rule 23 and the Equal Protection Clause, 50 NOTRE DAME LAW. 393 (1975); Gary A. Greenfield and Don B. Kates, Jr., Mexican Americans, Racial Discrimination, and the Civil Rights Act of 1866, 63 CAL. L. REV. 662 (1975).

“The yellow or bronze racial color is the hallmark of Oriental despotisms…” / “The White race was … ‘peculiarly fitted for self-government'” (Haney Lopez)

(Cf. 1836 Declaration from Texas on “unfit to govern themselves,” etc., which is cited in briefs in In re Rodriguez.)

The prerequisite cases also naturalized Whiteness by linking cognitive and cultural traits to physical difference. The prerequisite courts tied temperament, culture, intellect, political sophistication, and so on to physical features, treating questions of behavior as innate elements of human biology rather than as aspects of acquired identity.[16] Reconsider the justification offered by one court for the racial bar on Asian naturalization: “The yellow or bronze racial color is the hallmark of Oriental despotisms.”[17] This language draws a direct link between race and political temperament, thereby making culture a function of racial rather than social variability. This view of race seems to undergird the prerequisite laws, rendering fitness for citizenship not a question of learned behavior but of innate predispositions. To see this, contrast the remark about “despotism” with the view commonly held at the turn of the century that the White race was, as a leading scholar put it, “peculiarly fitted for self-government. It submits its action habitually to the guidance of reason, and has the judicial faculty of seeing both sides of a question.”[18] Whites qualified for citizenship because they were fit by nature for republican government; non-Whites remained perpetual aliens because they were inherently unfit for self-rule. Putative differences in temperament and culture were naturalized as “racial” differences.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 162.

 

  1. [16]SMEDLEY, supra, at 27.
  2. [17]Terrace v. Thompson, 274 F. 841, 849 (W.D.Wash. 1921).
  3. [18]FRANCIS PARKMAN: REPRESENTATIVE SELECTIONS 380-82 (William Schram ed., 1938), quoted in THOMAS GOSSETT, RACE: THE HISTORY OF AN IDEA IN NORTH AMERICA 95 (1963).

“Racism and prejudice, it is clear, played a fundamental role in encouraging mob violence against Mexicans … [1920s] ‘I would not think of classifying Mexicans as whites'” (Carrigan and Webb)

1920s: “I would not think of classifying Mexicans as whites.” / BB&W 50 (From Taylor interviews.)

Economic competition, although a significant force, does not sufficiently explain the history of anti-Mexican or anti-black mob violence. If mobs had considered only economics, they would have been just as likely to murder or expel any group standing in their way. But, in fact, mobs specially targeted Mexicans in the southwestern United States. Racism and prejudice, it is clear, played a fundamental role in encouraging mob violence against Mexicans. Mexicans were portrayed as a cruel and treacherous people with a natural proclivity toward criminal behavior. Racist stereotypes abounded in private correspondence, contemporary literature, and the popular media. “The lower class of Mexicans, on the west coast, appear to be a dark, Indian-looking race, with just enough of the Spanish blood, without its appropriate intelligence, to add a look of cunning to their gleaming, treacherous eyes, wrote Theodore T. Johnson in 1849.[54] In April, 1872, the Weekly Arizona Miner exclaimed: “Bad Mexicans never tire of cutting throats, and we are sorry to be compelled to say that good Mexicans are rather scarce.”[55] These assumptions, legitimated by pseudoscientific research, remained prevalent well into the twentieth century. A track foreman interviewed in the late 1920s in Dimmit County, Texas, observed: “They are an inferior race. I would not think of classing Mexicans as whites.”[56]

William D. Carrigan and Clive Webb, "Muerto por Unos Desconocidos (Killed by Persons Unknown): Mob Violence against Blacks and Mexicans," in Beyond Black & White: Race, Ethnicity, and Gender in the U.S. South and Southwest, edited by Stephanie Cole and Alison M. Parker (College Station: Texas A&M University Press, 2004), 50.

 

 

  1. [54]Theodore T. Johnson, Sights in the Gold Regions and Scenes by the Way (New York: Baker and Scriber, 1849), p. 240. Another early example of Anglo prejudice against Mexicans can be found in T. J. Farham, Life, Travels, and Adventures in California and Scenes in the Pacific Ocean (New York: William H. Graham, 1846), pp. 356-57.
  2. [55]Weekly Arizona Miner, Apr. 26, 1872.
  3. [56]Paul S. Taylor, Mexican Labor in the United States: Dimmit County, Winter Garden District, South Texas (Berkeley: University of California Press, 1980), p. 446 (quote). For additional accounts of prejudicial views towards Mexicans, see Robert Lee Maril, Poorest of Americans: The Mexican Americans of the Lower Rio Grande Valley of Texas (Notre Dame, Ind.: University of Notre Dame Press, 1989), pp. 10-11, 30, 33, 41-47, 49, 51-54, 79, 81, 151-55; Américo Paredes, “With His Pistol in His Hand,” in Chicano: The Evolution of a People, ed. by Renato Rosaldo, Robert A. Calvert, and Gustav L. Seligmann, Jr. (Malabar, Fla.: Robert E. Krieger Publishing Company, 1982), p. 101; Richard Griswold del Castillo and Arnoldo De León, North to Aztlán: A History of Mexican Americans in the United States (New York: Twayne Publishers, 1996), p. 30; Frank W. Johnson, A History of Texas and Texans (Chicago: American Historical Society, 1914), vol. 1, p. 516; Mark Reisler, “Always the Laborer, Never the Citizen: Anglo Perceptions of the Mexican Immigrant during the 1920s,” in Between Two Worlds: Mexican Immigrants in the United States, ed. by David G. Gutierrez (Wilmington, Del.: Scholarly Resources Inc., 1996), pp. 25-29.

“Frustrated at having been beaten out by the lower prices of their Mexican rivals, white competitors resorted to murdering cartmen, driving off their oxen and burning their carts and freight. Economic rivalry with Mexicans continued to inspire retributive action by whites throughout the late nineteenth and early twentieth centuries.” (Carrigan and Webb)

1857: Cart War in context of Anglo lynchings of Mexicans. / BB&W 49

Although the California gold rush witnessed some of the worst acts of mob violence against Mexicans, whites also resorted to savagery–in order to secure economic supremacy–on other occasions. Actions during the Texas “Cart War” of 1857 exemplify this. During the 1850s, Texas businessmen developed a freight-hauling service between Indianola and San Antonio. Frustrated at having been beaten out by the lower prices of their Mexican [50] rivals, white competitors resorted to murdering cartmen, driving off their oxen and burning their carts and freight. Economic rivalry with Mexicans continued to inspire retributive action by whites throughout the late nineteenth and early twentieth centuries. In 1898, a group of Gonzales, Texas men–probably poor white sharecroppers in competition with Mexican immigrants–posted this warning: “Notice to the Mexicans. You have all got ten days to leave in. Mr. May Renfro and brother get your Mexicans all off your place. If not, you will get the same they do. Signed, Whitecaps.” In the 1920s, alarm at the increasing number of Mexican laborers who settled in the Rio Grande valley contributed to the growth of the local Ku Klux Klan.[53]

William D. Carrigan and Clive Webb, "Muerto por Unos Desconocidos (Killed by Persons Unknown): Mob Violence against Blacks and Mexicans," in Beyond Black & White: Race, Ethnicity, and Gender in the U.S. South and Southwest, edited by Stephanie Cole and Alison M. Parker (College Station: Texas A&M University Press, 2004), 49ff.
  1. [53]Waco Times-Herald, Feb. 17, 1898; David J. Weber, ed., Foreigners in their Native Land: Historical Roots of the Mexicans (Albuquerque: University of New Mexico Press, 1973), p. 153; George P. Garrison, Texas: A Contest of Civilizations (Boston: Houghton Mifflin Co., 1973), p. 274; Frank W. Johnson, A History of Texas and Texans (Chicago: American Historical Society, 1914), vol. 1, pp. 515-16; J. Fred Rippy, The United States and Mexico (New York: F. S. Crofts & Co., 1931), pp. 179-80; Charles C. Alexander, The Ku Klux Klan in the Southwest (Lexington: University of Kentucky Press, 1965), p. 24. For further evidence of economic competition precipitating mob violence, see Mary Romero, “El Paso Salt War: Mob Action or Political Struggle?” Aztlán 16, nos. 1-2 (1985): 119-38.

“In the name of racially regulating behavior, laws CREATED racial identities” — Tennessee use of “mulattoes, mestizos, and their descendants” (Haney Lopez)

Second, positive law has created the racial meanings that attach to physical features. In a sense, this is the heart of the prerequisite cases, which at root embody the efforts of the courts to inscribe on the bodies of individual applicants the term “White” or “non-White.” These cases established as legal precedent the racial identities of the various faces and nationalities entering the United States at the turn of the century. Again, however, the racial prerequisites to naturalization are not the only laws that explicitly defined racial identities. Almost every state with racially discriminatory legislation also established legal definitions of race. It is no accident that the first legal ban on interracial marriage, a 1705 Virginia act, also constituted the first statutory effort to define who was Black.[6] Regulating or criminalizing behavior in racial terms required legal definitions of race.[7] Thus, in the years leading up to Brown, most states that made racial distinctions in their laws provided statutory racial definitions, almost always focusing on the boundaries of Black identity. Alabama and Arkansas defined anyone with one drop of “Negro” blood as Black; Florida had a one-eighth rule; Georgia referred to “ascertainable” non-White blood; Indiana used a one-eighth rule; Kentucky relied on a combination of any “appreciable admixture” of Black ancestry and a one-sixteenth rule; Louisiana did not statutorily define Blackness but did adopt via its Supreme Court an “appreciable mixture of negro blood” standard; Maryland used a “person of negro descent to the third generation” test; Mississippi combined an “appreciable amount of Negro blood” and a one-eighth rule; Missouri used a one-eighth test, as did Nebraska, North Carolina, and North Dakota; Oklahoma referred to “all persons of African descent,” [119] adding that the “term ‘white race’ shall include all other persons”; Oregon promulgated a one-fourth rule; South Carolina had a one-eighth standard; Tennessee defined Blacks in terms of “mulattoes, mestizos, and their descendants, having any blood of the African race in their veins”; Texas used an “all persons of mixed blood descended from negro ancestry” standard; Utah law referred to mulattos, quadroons, or octoroons; and Virginia defined Blacks as those in whom there was “ascertainable any Negro blood” with not more than one-sixteenth Native American ancestry.[8]

The very practice of legally defining Black identity demonstrates the social, rather than the natural basis of race. Moreover, these competing definitions demonstrate that the many laws that discriminated on the basis of race more often than not defined, and thus helped to create, the categories they claimed only to elucidate. In defining Black and White, statutory and case law assisted in fashioning the racial significance that by themselves drops of blood, ascertainable amounts, and fractions never could have. In the name of racially regulating behavior, they created racial identities.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 118-119.
  1. [6]Finkelman, supra, at 2088. According to Finkelman, “This act also made the first stab at defining who was actually black. The law declared that anyone who was a child, grandchild, or great grandchild of a black was a mulatto under the statute. this meant that persons who were of one-eighth African ancestry were black for purposes of Virginia law.” See generally A. Leon Higginbotham, Jr., and Barbara K. Kopytoff, Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 GEO. L. J. 1967 (1989).
  2. [7]See Raymond T. Diamond and Robert J. Cottrol, Codifying Caste: Louisiana’s Racial Classification Scheme and the Fourteenth Amendment, 29 LOY. L. REV. 255, 265 (1983) They argue that “[s]tate supported or initiated discrimination required racial definitions. The law could not separate what it failed to categorize.”
  3. [8]Paul Finkelman, The Color of Law, 87 NW. U. L. REV. 937, 955 n. 96 (citing PAUL MURRAY, STATES’ LAWS ON RACE AND COLOR [1950]).

“Antimiscegenation laws… sought to maintain social dominance along specifically racial lines, and at the same time, sought to maintain racial lines through social dominance” (Haney Lopez)

Naturalization and immigration laws are not, however, the only or even the most important laws that have influenced the appearance of this country’s populace. More significant may be the antimiscegenation laws, which appeared in the statutes of almost every state in the union until they were struck down by the Supreme Court in 1967.[3] These laws purported merely to separate the races. In reality, they did much more than this: they acted to prevent intermixture between peoples of diverse origins so that morphological differences that code as race might be more neatly maintained.[4] Antimiscegenation laws, like lynch laws more generally, sought to maintain social dominance along specifically racial lines, and at the same time, sought to maintain racial lines through social domination. As Martha Hodes argues, “racial hierarchy could be maintained primarily through the development of a rigid color line: if blacks and whites did not have children together, then racial categories could be preserved.”[5] Cross-racial procreation erodes racial differences by producing people whose faces, skin, and hair blur presumed racial boundaries. Forestalling such intermixture is an exercise in racial domination and subordination. It is also, however, an effort to forestall racial blurring. Antimiscegenation laws [118] maintained the races they ostensibly merely separated by insuring the continuation of “pure” physical types on which notions of race are based in the United States.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 117ff.
  1. [3]The Supreme Court declared antimiscegenation laws unconstitutional in Loving v. Virginia, 388 U.S. 1 (1967). See generally ROBERT J. SICKELS, RACE, MARRIAGE, AND THE LAW (1972).
  2. [4]See VIRGINIA DOMINGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA, 56-62 (1986); Paul Finkelman, The Crime of Color, 67 TUL. L. REV. 2063, 2081-87 (1993).
  3. [5]Martha Hodes, The Sexualization of Reconstruction Politics: White Women and Black Men in the South after the Civil War, 3 J. OF THE HIST. OF SEXUALITY 402, 415 (1993).

“Black was a generic term encompassing all non-Whites” in People v. Hall, California 1854 (Haney López)

California – People v. Hall (1854) — Chinese testimony grouped with Black and Indian by construction, “Black” as generic term =df non-White, the reverse of arguments made in Texas 1845 state convention. / WBL 51ff

Unsurprisingly, this early social treatment of Chinese as akin to Blacks also found legal expression. For example, in the 1854 case People v. Hall the California Supreme Court heard the appeal of a White defendant challenging his conviction for murder. He appealed on the grounds that he was convicted only through the testimony of a Chinese witness, and that this testimony should have been excluded under an 1850 statute providing that “no Black, or Mulatto person, or Indian shall be allowed to give evidence in favor of, or against a White man.”[6] The court agreed with the defendant that the Chinese witness was barred from testifying by the 1850 statute, reasoning that Indians originally migrated from Asia, and so all Asians were conversely also Indian, and that, at any rate, “Black” was a [52] generic term encompassing all non-Whites, and thus included Chinese persons.[7] This legal equation of Chinese and Black status was not temporally or geographically unique. Three-quarters of a century later and across the country, Mississippi’s Supreme Court reached a similar decision, holding in 1925 that school segregation laws targeting the “colored race” barred children of Chinese descent from attending schools for White children.[8] Given their social and legal negroization, it may well have been easier for the Chinese and other immigrants to argue their qualification for citizenship as Blacks rather than as Whites.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 51ff.

 

  1. [6]Ozawa, supra, 260 U.S. at 198.
  2. [7]Ichioka, supra, at 9-17.
  3. [8]