The Fourteenth Amendment prohibits a state from denying “any person within its jurisdiction equal protection of the laws.” That seems simple enough…. (More)

Listening to Latinos, Part II: The Law

This week Morning Feature explores issues that concern our Latino communities. Yesterday we looked at how the Great Recession has disproportionately hurt Latinos. Today we consider whether Latinos receive equal protection under the law. Tomorrow we’ll conclude with religion, culture, and social issues.

“any person within its jurisdiction”

That phrase is so beautifully clear. It doesn’t read “any citizen,” or “any legal resident.” In plain language, the Fourteenth Amendment directs a state to provide “equal protection of the laws” to “any person within its jurisdiction.” Even if that person is … a Latino.

The state of Texas disagreed.

In 1950, a migrant farm worker named Pete Hernandez was charged with murder in Jackson County, Texas. Hernandez was convicted by an all-white jury, and he appealed on the grounds that Latinos had been excluded from the jury pool, denying him equal protection of the laws. Texas did not bar Latinos from serving on juries by law, but while 1-in-9 Jackson County males over age 21 had Hispanic surnames, not one had served on a Jackson County jury in over 25 years. Back in 1880, the U.S. Supreme Court held in Strauder v. West Virginia that excluding jurors based on race denied equal protection to defendants of that race. And in 1935, the Court held in Norris v. Alabama that this was not limited to statutory exclusion of jurors, but included systematic informal exclusion as well. Not seating a single Latino juror in 25 years seemed like systemic exclusion, especially after Jackson County jury commissioners testified that, in selecting jury pools, they chose the people they thought were best qualified.

Maybe so, Texas argued, but that’s not a problem … because the Fourteenth Amendment was only intended to protect blacks. Latinos are white, the state said. Except for the separate elementary schools. And the restaurant with a sign saying “No Mexicans Served.” And the two men’s bathrooms in the Jackson County courthouse: one for whites and another marked “Colored Men/Hombres Aqui.”

In 1954, the U.S. Supreme Court unanimously held in Hernandez v. Texas that “any person within its jurisdiction” included Latinos. Problem solved?

“equal protection of the laws”

The Justice Department recently completed a three-year investigation of the Maricopa, County Arizona Sheriff’s Department, and found that Sheriff Joe Arpaio let his officers know “biased policing would not only be tolerated, but encouraged.” Arpaio was in the army in 1954, so maybe he hadn’t heard about Hernandez v. Texas and the Supreme Court’s ruling that the Fourteenth Amendment includes Latinos. He wasn’t alive back in 1886, when the Supreme Court held in Yick Wo v. Hopkins that the Fourteenth Amendment also includes immigrants, even those who are not citizens.

So maybe he just didn’t know that even non-citizen immigrant Latinos are persons entitled to “equal protection of the laws,” and that’s why he “promoted a culture of bias” against Latinos and “engages in racial profiling of Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about or criticize MCSO’s policies or practices.” Such ignorance of the law would be no excuse for a “culture of bias” that included botched investigations of over 400 sex crimes including 32 child molestations, many of them children of undocumented immigrants. Still, it would be more comforting to believe he just doesn’t know better, rather than to suspect Sheriff Arpaio has decided Latinos don’t deserve “equal protection of the laws,” no matter what those activist judges say.

But at least his reach is limited to one county in Arizona. Tuscon is in a different county, so they would surely be more understanding. Except for school courses in Mexican-American studies. The Arizona legislature forced the school district to shut down that program, and the district banned and confiscated the textbooks. Still, that’s only Arizona.

Except that FBI agents arrested four East Haven, Connecticut police officers last week on charges they harassed Latino citizens and business owners, after a Justice Department report last month finding the city’s police department:

… engages in discriminatory policing against Latinos, including but not limited to targeting Latinos for discriminatory traffic enforcement, treating Latino drivers more harshly than non-Latino drivers after a traffic stop, and intentionally and woefully failing to design and implement internal systems of control that would identify, track, and prevent such misconduct. The pattern or practice of discriminatory policing that we observed is deeply rooted in the Department’s culture and substantially interferes with the ability of EHPD to deliver services to the entire East Haven community.

Asked what he would do for East Haven’s Latino community in light of the discrimination charges, Mayor Joseph Maturo replied: “I might have tacos when I go home, I’m not quite sure yet.” But he apologized the next day. And an apology is as good as “equal protection of the laws,” right?

“Attrition through enforcement”

With all the focus on immigration, it’s easy to look past the smothering, day-to-day burden of discriminatory policing. Yet as Immigration Impact‘s Michele Waslin writes, the issues overlap:

“Attrition through enforcement” laws—like Arizona’s SB1070 and Alabama’s HB56—were explicitly designed to interfere with the everyday activities of immigrants and go far beyond denying unauthorized immigrants work. These laws deny access to housing, school, work, and even water and electricity to anyone who can’t prove legal status. The laws’ supporters have made it clear that making people miserable and encouraging them to leave the state is the intended consequence of their policies.

Never mind that the U.S. Supreme Court decided, in Truax v. Raich, that states can’t write their own immigration laws. That was way back in 1915. That overturned another Arizona law, but maybe the Arizona legislature just forgot. Or maybe they misunderstood. After all, that 1914 Arizona law included white people, like Austrian immigrant Mike Raich. Surely the Supreme Court didn’t think the word “person” in the Fourteenth Amendment included … everyone.

That would be too simple.

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Happy Friday!