Cardozo and "Hispanic" identity

[Bob Sheridan]

One of the oddities of all this is that for a long time the children and 
grandchildren of immigrants wanted to become American.  That means they 
subordinated their origins and parents' language ability to what they 
wanted to become, American (English) speakers and Red-blooded 
Americans.  Later, after they'd become American, a premium was placed on 
being an ethnic.  It's like you can't win.  People want to know who you 
are, as in "What-other-than-American?", so you can be placed.  It's a 
common experience among American-born Chinese and other A-b Asians to be 
asked in Whitebread areas of the country "what-are-you?" and "American" 
doesn't count as a correct answer, because the followup question is apt 
to be "But what are you, really?"

In the U.S., Mr. Whitebread places pressure on immigrants to speak 
English.  A news report from a day or two ago notes the objection to 
allowing Spanish language materials in "American" meaning U.S. local, 
public libraries, on the theory that "they" should be learning American, 
not Spanish.

Applying one of the tools of the Conlaw discipline to the situation, the 
question is whether government may add legal pressure to private social 
pressure to conform to some general presumed 'national' standard of 
identity based on group identity in respect of language (or sexuality, 
to note another context under discussion).  When the French get on our 
nerves, French fries become, of patriotic necessity, "Freedom fries."

The case which seems to be under-famous considering the breadth of its 
principle is Palmore v. Sidoti, standing for the idea that government 
may not bow to public prejudice.  Can you imagine if this country really 
behaved that way?

Further to the idea of enforced conformity, following the forced 
conversion of Jews in Spain under threat of expulsion which came about 
in 1492 under Los Reyes Catolicos, Ferdinand and Isabella, Columbus's 
patrons, the folks who gave us America, those who converted suddenly 
became able to hold high government and church office, representing 
money and power, to the consternation of those who did the forcing.  
Suddenly you had two classes of Christians in Spain, new and old.  
Sancho Panza voiced his pride in being Cristiano viejo, old stock 
Christian, no parvenu.  New stock Christians were called marranos, which 
I understand means swine.

You also had the Inquisition, designed to root out secret Jews, those 
who privately maintained their original identity while going through 
Christian motions to maintain their new status.  Denunciations by 
neighbors became common because for example one bought candles on or for 
Friday, the beginning of the sabbath, or new linen,  presumed by 
suspicious minds to be for the ritual dining table, etc.

This business of trying to assign an ethnic identity to Cardozo or to 
Ted Williams for that matter seems to run afoul of a value in America on 
which we place some emphisis, which is that you are what you do, or 
prefer to be seen as, which latter could be just plain "American," not 
what your parentage was.  Thus the idea of a "Jewish seat" on the 
Supreme Court, initiated by Cardozo come to think of it (not a Hispanic 
seat), or a seat for a hispanic or a woman, seems 
somewhat...unAmerican.  But why change the rules now?  In some areas, 
such as New York, the balanced ticket was the important thing at 
election time, requiring the posting of a slate containing an Irish, an 
Italian, and a Jew, designated by obvious last names for the posters and 
the ballots.  Who knows, some of them might have become good public 
officials, went an old saw.

It's clear that we have never resolved our conflicts over group identity 
and this ambivalence is reflected all over Conlaw, such as in Crosson 
and Adarand, see Scalia's ringing statements about all of us being part 
of one group, American.  I think it was Brandeis who said in a Commerce 
Power context that we're all in the same boat together for sink-or-swim 
purposes.  Tell it to the people of New Orleans, post-Katrina, where 
Uncle Sam was a little slow off the dime.

rs













Marc Poirier wrote:

>
> I am responding to the post reproduced below.  (I snipped the rest of 
> the thread.)  First, I do agree that some of what went through this 
> list serve yesterday could be read as insulting or at the least highly 
> insensitive.  But I choose not to read things that way -- emails is a 
> very tricky medium for tone, and people dash things off and press the 
> send button willy-nilly.
>
> Buzan's post gets me back to the issue of identity as fundamentally 
> contextual, as outlined in my last post yesterday.  I argued for the 
> relevance of LatCrit and critical race theory to this discussion.  If 
> one uses physical characteristics as the basis for assigning identity 
> (skin color, nose shape, hair et cetera) it is easy to conceive of 
> identity as fixed rather than performed and interpreted -- an 
> individual is  Black or White based on the body, supposedly.  This 
> thinking derived in this country in large part from the American 
> slavery experience and from various attempts it generated to ground 
> race relations in the body and thus to naturalize power relations.  (I 
> hasten to point out that such attempts to naturalize identity are made 
> both from positions of dominance and of subordination.)  It's a 
> natural but fundamentally erroneous way of looking at identity.
>
> LatCrit provides a corrective to some of this thinking about identity 
> by insisting on noticing the multiple markers of identity and on the 
> fact that their significance is contextual and changes according to 
> geography, historical context, and social and political circumstance. 
> For example,  in the context of the question of Latino/a identity, is 
> being Latino/a about language, ethnicity, ancestry, national origin, 
> social status, skin color, individual self-concept?  Who decides?  In 
> what specific social and political contexts?  LatCrit tends to focus 
> on contemporary legal issues from a progressive slant, but these are 
> also precisely the questions we were bumping up against in our 
> collective consideration of whether Cardozo was "Hispanic," so that 
> Gonzalez would be the second and not the first "Hispanic" Justice.
>
> Buzan is right to look even more closely at context when considering 
> the question of the appointment of a supposedly Hispanic judge or 
> justice.  It's an interesting and instructive context.   He suggests 
> that Estrada was defined as not sufficiently Latino because of his 
> lack civic participation in Latino causes.  Buzan's post thus suggests 
> that among the fluid and negotiable markers of identity is in-group 
> self-definition, which can be at odds with personal self-definition. 
>  Also, participation in activities and rituals demonstrating a 
> personal commitment to a group's citizenship may come to the fore as a 
> marker of identity, much as they do in some religious identities. 
>  Mostly, frankly, who cares whether an individual of Latino background 
> (whatever goes into that) participates in Latino in-group defined 
> social functions?  But when an individual is being marketed to the 
> public as a member of a particular identity group, the various 
> elements that go into identity will be scrutinized by the various 
> groups that participate in the ongoing construction of identity.
>
> In the current United States political climate, claims to Latino 
> identity are particularly important, interesting and contested because 
> of the emergence of Latino/a populations as politically and 
> economically powerful, first in a number of cities and states, and 
> increasingly nationally.  All parts of the political spectrum now have 
> a stake in gaining the support of /marketing to these populations. 
> They have developed Latino/a oriented political strategies, which 
> inevitably involve attempts to define what counts as Latino/a.  Of 
> course various parts of the political spectrum will "spike" their 
> approaches to this identity with other issues of concern to them. 
>  Conservatives will try to define core Latino characteristics to 
> include those with conservative Catholic and family values; 
> progressives will try to focus on concerns about discrimination, 
> support for marginalized and non-traditional families, and economic 
> opportunity.
>
> One terminological note.  I prefer "Latino/a" to "Hispanic" for 
> several reasons, but "Hispanic" is also widely used in current public 
> discourse and emerged in the posts yesterday.  Here I have used both 
> interchangeably.  Enough for now.
>
> Warmly,
>
> Marc R. Poirier
> Professor of Law
> Seton Hall University School of Law
> One Newark Center
> Newark, NJ  07102
> 973-642-8478
>   ----- Forwarded by Marc Poirier/LWF/SHU on 09/07/2005 07:44 AM -----
> *Bert Buzan <bbuzan at gmail.com>*
> Sent by: conlawprof-bounces at lists.ucla.edu
>
> 09/07/2005 01:30 AM
> Please respond to
> bbuzan at gmail.com
>
>
> 	
> To
> 	Jeffrey Segal <jsegal at notes.cc.sunysb.edu>
> cc
> 	conlawprof at lists.ucla.edu
> Subject
> 	Re: Cardozo and Estrada
>
>
>
> 	
>
>
>
>
>
> This "insufficiently Hispanic" talk strikes me as sufficiently
> snippy/flip to be the result of a deliberate attempt to be insulting.
>
> Estrada did not get the acquiescence of a number of Latino civil
> rights groups that some other conservative Latinos have gotten, and
> will get, because of his complete lack of public involvement in any
> kind of Latino civic activity, however apolitical, or even any public,
> pre-nomination acknowledgement that he regarded Latino advancement as
> any kind of personally meaningful category.
>
>------------------------------------------------------------------------
>
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