The Legal Construction of Race: Mexican-Americans and Whiteness

Abstract

In light of the privileged status of whiteness and these important critical race projects, this essay seeks to examine a number of issues concerning Mexican-Americans and whiteness. In particular, this essay seeks to examine how legal actors - courts and others –constructed the race of Mexican-Americans. In this regard, the essay seeks to examine whether the law constructed Mexican-Americans as white and whether they received the benefits traditionally associated with whiteness. The essay also explores the importance of group definition and argues that an examination of whiteness and Mexican-Americans has implications for the affirmative action debate. The article also explores how the legally defined race of Mexican-Americans contrasted with the colonial discourses that developed in the American southwest and which characterized Mexican-Americans as racial Others.

In addition, the essay seeks to explain why Mexican-Americans were legally classified as white. The essay also seeks to link theory with practice. Toward that end, the essay briefly suggests how some of the insights of Critical Race Theory developed in this paper may be useful for litigators representing Mexican-Americans. Beyond this, this essay seeks to help construct LatCrit Theory. Although a number of Latinos have been important practitioners of Critical Race Theory, few articles have applied critical theory to matters of particular concern to Latinos. This essay seeks to help fill this void in the literature.

Part II of this essay describes how the courts and other legal actors constructed the race of Mexican-Americans. It concludes that for the most part legal actors constructed the race of Mexican-Americans as "white." Part III discusses the importance of legal definition - e.g., defining a group as white or in some other way –for historically oppressed groups. It analyzes how dominant-group-controlled institutions may use power over minority group identity to reinforce group oppression. Part IV observes that although Mexican-Americans were legally defined as "white, they did not receive the benefits traditionally associated with whiteness. This section argues that this illustrates a principle developed by critical theorists - the principle of marginality - which holds that legal rules and doctrines often fail to impact on society. Part V argues that the fact that Mexican-Americans did not receive the benefits usually associated with whiteness has implications for the affirmative action debate. Part VI argues that the legal construction of Mexican-Americans as white is ironic. It is at odds with the colonial discourses that developed in the American Southwest. Such discourses characterized Mexican-Americans as a racial Other. In light of their discursive production as racial Others, it is puzzling that Mexican-Americans were legally constructed as white. Part VII seeks to explain why Mexican-Americans were legally classified as “white.”

Keywords: Mexican-Americans, Latinos, race, whiteness, Critical Race Theory, LatCrit Theory, Latino Critical Theory, racial Others