The so-called New Western Historians have shown us how to write cultural and social history from West and Southwest to East, in contrast to the traditional narrative written from East—the Pilgrims and all that—to West and Southwest. Writing political history from West and Southwest to East is more difficult, though perhaps possible. Writing constitutional history in that direction seems impossible, because of the central role African slavery played in the creation and early development of the Constitution. As this collection of articles on Hernandez v. Texas shows, the situation is different for contemporary constitutional law. The West and Southwest can become central to our understanding of the constitutional law of the twentieth and twenty-first century.
Constitutional law in the nineteenth century did confront the West and Southwest, but the issues implicated in those confrontations reflected the centrality of slavery in the constitutional law of the era. This is true of both the adjudicated Constitution and the non-adjudicated one. The Cherokee Removal cases presented a conflict among three national institutions—the national government, state governments, and the Supreme Court—in the course of implementing a national policy aimed at separating indigenous Americans from an area white Americans hoped to control. The Supreme Court’s constitutional cases, though, were about the role of states and the Supreme Court in implementing that policy. That is, they were federalism cases in the ordinary mold. (Johnson v. MacIntosh, a non-constitutional case, did deal with fundamental questions about how the encounter between indigenous Americans and newcomers would develop.)
The Louisiana Purchase opened the way for migration from the East to what was then described as the West, and later to what we now call the West and Southwest. And there were constitutional issues connected to the Louisiana Purchase, though none reached the courts. The basic issue was whether the national government had the power to acquire territory by purchase. None of the powers enumerated in Article I—and nothing obviously inherent in the executive power of Article II—seemed to authorize permanent expansion by purchase. Note, though, that the question of whether an action fell within the enumerated powers was understood at the time to be fundamentally a question of states’ rights. That is, the national government’s power was limited so as to ensure that states would continue to control matters of particularly local concern, the most important of which was slavery in the South.
It would be relatively easy to write the constitutional history of the nineteenth century with slavery and its post-1865 legacy at its heart. And, I think, scholars of constitutional law continue to see slavery’s legacy as central to the development of constitutional law in the twentieth century. In the standard story, for example, Brown v. Board of Education lies at the core of twentieth century constitutional history. Harry Kalven wrote The Negro and the First Amendment, showing how cases arising out of the civil rights movement of the 1960s transformed free speech law. The Warren Court’s revolution in constitutional criminal procedure is often described as an effort by the Supreme Court to regularize the law arising out of routine interactions between African Americans and the police in the nation’s cities.
Yet, this collection shows how the standard narrative can be displaced. Accidental facts indicate the opening: that Hernandez was decided just a week before Brown; that two central cases in the criminal procedure revolution—Escobedo v. Illinois and Miranda v. Arizona—involved not African American but Latino defendants and one arose in the Southwest. In some ways, the question is, How wide an opening does the perspective from the West and Southwest provide?
Without intending to disparage the insights on constitutional criminal procedure we can get by looking from the West and Southwest, I will focus here on equal protection law, moving from some relatively narrow doctrinal points to a broader vision of the nation’s self-understanding. We can begin by noting the transformation of the subject matter of the equal protection clause from “African Americans” to “race.” The Supreme Court suggested in the Slaughterhouse Cases that the clause was not likely to be invoked successfully on behalf of any class other than African Americans. That observation seems at best quaint today. Partly because of a deep universalism in U.S. constitutionalism, the litany, “race, religion, and national origin” rapidly became embedded in our understanding of equality’s concerns, later to be expanded to include gender, sexual orientation, age, and more.
What, though, is “race”? How do we know when people are discriminating on the basis of race? As several essays here demonstrate, Hernandez can be seen as the origin of, and perhaps the best justification for, the view that race discrimination consists of a socially constructed process of subordination, and so as the origin and justification for a view of the equal protection clause in severe tension with the now prevailing view that the clause aims at practices that are not neutral with respect to race. The anti-subordination interpretation of the equal protection clause carries with it important doctrinal consequences, such as the near-automatic validation of genuine affirmative action programs.
The view from the West and Southwest illuminates issues even from within the race-neutrality interpretation of the equal protection clause. A persistent issue within that interpretation is what to do about practices, neutral on their face, that have a racially disparate impact. Again, the account of the facts in Hernandez, and the Court’s explanation for its holding that those facts demonstrated an equal protection violation, show both why disparate impacts should be constitutionally troubling, and how to identify practices with such impacts. A less common issue that Hernandez v. Texas brings to the surface is the one directly confronted, and decided wrongly, in Hernandez v. New York: What is the constitutional status of a practice expressly grounded on a racially neutral criterion that is closely correlated with race? This question differs from that of disparate impact, because disparate effects can arise from the use of racially neutral criteria that are only loosely correlated with race (but are correlated with other facts, such as poverty, that are correlated with race). Few cases involving African Americans raise the “correlated with race” issue in as clear a form as Hernandez v. New York does. The Hernandez cases make it clear that the “correlated trait” cases cannot sensibly be resolved without paying attention to the social construction of race.
The view from the West and Southwest brings into clearer view some even broader questions. With slavery and its legacy at the center of the narrative of constitutional law, it is possible to pose the constitutional choice open to the United States as one between binationalism and integration. The black-white racial binary might be used to describe segregation, or a world in which institutions are truly separate and equal, or the world envisioned by some black nationalists. The universalist alternative is integrationism. Some of the essays in this collection show precisely how the view from the West and Southwest came to complicate the narrative. In the first instance, the question was, Given the black-white racial binary, where can law locate Mexican-Americans in the two-category system of racial hierarchy? The background and litigation posture of Hernandez v. Texas show how that question came to seem badly posed. Mexican-Americans were, from one angle, neither black nor white, and from another, were both black and white.
The next step was conceptually simple, though difficult to take in practice. The racial binary was replaced by a multi-tiered system of racial hierarchy, still with whites at the top. One might say that multinationalism replaced binationalism. And that replacement transforms quite dramatically the way we can think about race. Sustaining a vision of a binationalism of equals was enormously difficult given the history of racial subordination in the United States. Sustaining a vision of a multinationalism of equals was substantially easier—and even easier once multinationalism became understood anew as multiculturalism. The integrationist alternative did not disappear, of course, but the competition between multiculturalism and integrationism as visions of a society of equals occurred on terms much more favorable to the multicultural alternative than had characterized the position of binationalism in its competition with integrationism.
I have sketched out how the view from the West and Southwest can modify the presently prevailing modes of understanding equal protection law. A question for future research is the extent to which that view might have similar effects on the modes of understanding other parts of constitutional law. It seems clear to me that the view from the West and Southwest could affect the presently prevailing mode of understanding the constitutional organization of foreign affairs, for example, by making the Insular Cases as important as the Steel Seizure Case, and by treating cases involving national power over immigration as foundational cases—equivalent in importance to the cases involving national power over the economy.
What of other areas of constitutional law? Can the view from the West and Southwest change the way students of constitutional law understand the First Amendment? Questions of federalism? The essays in this collection of course do not offer answers to those questions. What they do, though, is make it possible to ask them. Over the next decades, we may come to see how the view from the West and Southwest helps us see the entire Constitution differently.
Mark Tushnet
Georgetown University Law Center