Deadweight Costs and Intrinsic Wrongs of Nativism: Economics, Freedom, and Legal Suppression of Spanish

Posted: 23 Jun 1999

See all articles by Drucilla Cornell

Drucilla Cornell

Rutgers University School of Law

William W. Bratton

University of Pennsylvania Law School; European Corporate Governance Institute (ECGI)

Abstract

This Article marshals a new case for invalidating English Only regulations, which take the form of (a) "Official English," statutes that elevate English to "official" status as the language of government, and (b) "Workplace English," employer regulations, widespread in American workplaces and sustained by federal courts, that mandate English speech at all times on pain of termination. The Article centers on Latinos and Latinas to make a case for invalidation built on the value of linguistic and cultural identifications to the individual person. It shows that English Only violates the basic right of personality of non-English speaking and bilingual Americans without yielding anything of cognizable value to American society as a whole. The case has two phases.

The first phase of the case approaches value from the point of view of the person as modeled in economic theory. It draws on the economics of language difference and the economics of discrimination to undercut the cost justification for state language mandates designed to encourage immigrant assimilation and demonstrate the cost feasibility of legal intervention against Workplace English. These economics imply a complex description of the incentives of Latino and Latina immigrants. On the one hand, there remains every reason to apply the traditional view that market incentives are sufficient to assure that Latinos and Latinas learn English with a view to participating in the mainstream economy. So doing rebuts the nativist characterization of a foreign-language threat to American civilization--spontaneous order appears to be adequate to the job here. On the other hand, the economics provide no basis for predicting that the economic opportunities available to Latinos and Latinas import present incentives to disperse across the continent in the manner of earlier immigrant generations. Discrimination by white Anglos limits both their returns on human capital investment and their incentive to assimilate. Meanwhile, the economic theory of discrimination fails to support a prediction that free markets necessarily will cause this problem to disappear over time. Workplace English emerges in this analysis as indistinguishable from other discriminatory conduct barred by Title VII. Title VII coverage may be costly, however: Discriminatory employer practices may be cost reductive, and enforcement increases employer operating costs. But the ultimate cost-benefit result can depend on who bears the costs. The Article projects that the costs, modest in the first place, will be borne by Latinos and Latinas themselves, who will not differ from other Americans so far as concerns a willingness to bear the costs of life in a free and equal society.

The second phase of the Article's case approaches value from the point of view of a person as modeled in Kantian moral and political theory. It sets out in detail a theory of right that compels the accordance of suspect status to discrimination based on language. Here the Kantian ideal of the free person is connected with a description of the constitutive role identifications play in any human being's struggle to live out her life. Language rights are justified through an interpretation of what it means to treat each individual as a free person with equal dignity. This justification is grounded in turn in a description and defense of the ideal of the imaginary domain. This demands that each individual be given the moral and psychic space to evaluate, represent, and ultimately to integrate the complex realities of culture, linguistic origin, national affiliation, ethnic identity, and religious heritage. Language accordingly should be treated as a fundamental identification encompassed by each person's right of personhood. It follows that a legal system that treats Latinos and Latinas as equals recognizes them as the source of the value they bestow on the Spanish language. In contrast, an English Only regime designed to force Latinos and Latinas to speak the majority tongue in public life or in the workplace treats them as less than free persons, thereby degrading them and violating their imaginary domains. In the course of articulating this position, the Article addresses recent, more general debates on cultural rights. The Article declines to join these discussants in debating the truth about the constitution of the post-modern subject because its argument does not require an answer to the question of who we really are as subjects. This is because its central point is that such basic decisions about the meaning of identification must be left to individuals as they struggle to form their own lives. It argues that the focus of legal debates about minority rights and multiculturalism should shift away from the question as to the truth of the subject and instead ask how and why state recognition of the person demands the right of personhood. Thus changing the question allows us to rethink the ethical stakes in debates about identity politics without attaching ourselves to a simplistic or, worse yet, naturalized conception of identity. Once freedom occupies the foreground of the picture, questions about the relationship between language and culture will lead to complicated explanations. Yet this complexity in no way denies the need for language rights.

Suggested Citation

Cornell, Drucilla and Bratton, William Wilson, Deadweight Costs and Intrinsic Wrongs of Nativism: Economics, Freedom, and Legal Suppression of Spanish. Cornell Law Review, Vol. 84, P. 595, 1999. Available at SSRN: https://ssrn.com/abstract=165708

Drucilla Cornell (Contact Author)

Rutgers University School of Law ( email )

NJ
United States
973-994-7799 (Phone)
973-994-9446 (Fax)

William Wilson Bratton

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

European Corporate Governance Institute (ECGI) ( email )

c/o ECARES ULB CP 114
B-1050
Brussels
Belgium

HOME PAGE: http://www.ecgi.org

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