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.
+++++
Happy Friday!
This is an appalling litany and very troubling to read. Of course all persons should be afforded equal protection, and I’m horrified that cops and courts seem to keep getting away with this kind of tripe. Of course I’m not unaware that it happens, but I guess I was hoping in my heart of hearts that it wasn’t so widespread.
I’ve spoken before of how my apartment was illegally entered by cops hunting for undocumented immigrants. But I was able to call the police department and raise cain. A Latino wouldn’t have dared.
My sister-in-law is Hispanic. Her family has been in Texas since land grant days. I hate to think what she must have endured over the years. She and her entire family.
This has to be stopped.
When I was in law school we discussed the many ways people have tried to wriggle around the Equal Protection Clause and Civil Rights and Voting Rights Acts. One day, one of my classmates stood and began to paraphrase Dr. Seuss’ Green Eggs and Ham. I don’t remember it all, but one bit was:
Although he’s since backed off the claim, Justice Antonin Scalia once argued that “any person within its jurisdiction” did not include women, and Virginia Attorney General Ken Cuccinelli says it does not include LGBTs. Because that wasn’t the “original intent,” you see….
Good morning! ::hugggggs::
Like winter, I am troubled by how widespread this is and how awful. I think as a privileged white person it is very difficult to imagine the law treating us this way. We don’t want to look at the ugliness in our past or in our present. If we can’t describe how terribly unjust things are, we will never change them.
This is too often true, addisnana:
You have shared before the story of a Latino stepson who was hassled by school officials and the police because you had given him money to buy new clothes. The school officials assumed that because he had cash in his pocket – and was Latino – he must be dealing drugs. I don’t remember the details, but perhaps you could share them again?
Discriminatory policing is widespread … but if it doesn’t happen to you or someone you know, we can easily convince ourselves it doesn’t happen at all.
Good morning! ::hugggggs::
The interesting thing about this is my reaction, “We’re not taking this. It is wrong.” and their reaction which was, “This is how we are treated and any protest would just aggravate things.” I wrote letter to the principal and the school board asking for any apology, the return of the money and jewelry they has confiscated and assurances that some sort of training would be mandated so that Latinos were not assumed to be guilty. My spouse sent the letter. My ex and his son were truly amazed at the responses that they got. It was a lesson for all of us. When reminded about the right thing to do, the school did it.
I feel fortunate that last November the voters of Suffolk County, NY, elected Steve Bellone, Democrat, to the position of County Executive. Steve relates to his relative’s immigrant past and recognizes the similarity of then to the experience of today’s Latinos. I was honored to serve on an immigrant advocacy group transition team that submitted a document asking for certain practices and laws be considered by the new administration. A lengthy document, here is a little bit of it:
That looks like a comprehensive document, Mike. Has Steve (or have you) received any feedback from county law enforcement?
Good morning! ::hugggggs::
There’s a report about the transition team this Sat, but I won’t be able to attend.