Balkinization: On Racial Innocence

On Racial Innocence

Guest Blogger

For the Balkinization symposium on Tanya K. Hernández, Racial Innocence: Unmasking Latino Anti-Black Bias and the Struggle for Equality (Beacon Press, 2022).

Gerald Torres

Professor Hernández has performed an essential service for us all. Those who turn to the law to root out racism, especially anti-black racism, should study her work. And those who would hide behind their own racially marginalized status and who consider mounting some defense premised on cultural immunity, even if undertaken, or perhaps, especially if undertaken in good faith, should apply the critical method modeled in this book and reconsider.

As I read this book, I wondered who its intended audience was. Anyone raised in a Latinx community knows that there is a strong current of colorism that runs through it. It has its expression as anti-black and anti-indigenous animus. (The latter is expressed in many ways, perhaps exemplified most plainly by a sign on a bus in Peru that said, “only ring once, don’t be an Indian.”) Assessing the anti-black animus of immigrant communities is complicated because each Latin American nation has its own expression of anti-black racism that merges with white-centered U.S. anti-black racism with which most of us are familiar. Latino anti-black racism or racial attitudes are additionally complicated because of immigration, which brings with it contemporaneous racial attitudes.

Professor Tomás Jimenez documented this process of ethnic renewal for Mexican Americans in his book, Replenished Ethnicity, Mexican Americans, Immigration, and Identity. (2009). I suspect that the process described by Professor Jiménez is true to varying extents for all Latin American immigrant communities and includes more than just racial attitudes. I also believe that the gravitational pull of domestic expressions of anti-black racism, rooted as they are in the history of chattel slavery, and its current white supremacist expression, is strong enough to distort whatever racial attitudes accompanied Latino immigrants whenever they arrived. Because of the temporal dimension of immigration, analyzing racial attitudes is invariably complex. Professor Lani Guinier and I documented this in the Miner’s Canary and our contribution to The New Black. The “racial innocence” analyzed by Professor Hernández is not so much innocence as disingenuity. The pretense or claim of innocence is dressed up as an expression of solidarity that excuses racist behavior.
Differently situated legal decision makers who adjudicate questions of racial discrimination are the most apparent audience of Professor Hernández new book, which performs an essential service by reminding us that there is no legitimate defense to the claim that one racially or ethnically marginalized group cannot discriminate against another racial group. While it is true that Latinx people run the racial gamut, the pressure to conform to existing categories and their relative valorization is intense. This conformity is undoubtedly expressed as racism in its conventional, if complex, form.

Much of what Professor Hernández describes is the working out of racism in the context of Latino perpetrators and victims. Latinos always confounded US anti-black racism. As Professor Martha Menchaca documents in her article "The Anti-Miscegenation History of the American Southwest, 1837 To 1970: Transforming Racial Ideology into Law." (20 Cultural Dynamics, 2008)Texas and California adopted racial codes in the pre-civil war era that accommodated intermarriage between Mexicans and Anglos (even if the Mexicans were Afro-Mexican) to protect claims to land and other property and to skirt the prohibitions on miscegenation. These codes were designed to protect the prerogatives of propertied whites, but they also incorporated some of the racial attitudes of the Mexicans in the territories. Until white colonists could claim numerical dominance in New Mexico and Arizona territories, those areas remained territories while Texas and California became States. In addition, tracing back through the 700 years of Islamic African colonization of the Iberian Peninsula, a black presence in Mexico was there from the beginning. There is a famous saying quoted by the Pueblo historian Joe Sando, “the first white man we met was a black man.” All of this illustrates that race has always been a political category. Judge Leon Higginbotham describes analogous processes in the slave codes of Virginia when he describes the offspring of enslaved African Americans and native women in terms of their capacity to be enslaved.

This brings us back to the questions posed by Professor Hernández. How do we deal with Latino anti-black racism within US anti-discrimination laws and the context of claims of cultural immunity? The short answer is that within the doctrinal prohibitions on racial discrimination, it makes no difference what the race is of the one who commits the racist activity. If it sometimes seems to matter, that is a mistake. It may be a profoundly complicated mistake, but it is still wrong as a legal matter. Racism is an evil to be eliminated, not excused.

The idea of cultural immunity is old and should be subject to the scrutiny it deserves. Who can forget Professor Orlando Patterson defending nominee Clarence Thomas against the charges raised by Anita Hill with the claim that his alleged behavior was just a “down-home style of courting” that people viewing it from within a black cultural milieu would understand? Many members of that community disagreed. Hill obviously did.

Professor Hernández demonstrates that any argument that begins with an excuse for racist behavior based on common membership in a cultural group where the plaintiff and defendant are from the same group should be subjected to withering critique that should come from the community itself. In the Latino context, cultural immunity defenses can be especially vexing because they presume a commonality that may not exist. Lani and I wrote about the various ways Latinidad has been deployed, but the keyword is deployed. The category relies on those aspects of Latino culture that have salience in the domestic political context. Recognizing that is the critical analytic turn and ought to inform the application of anti-discrimination norms.

An easy way to see this is to consider the jurisdictional complexity of federal Indian law. More than 300 years ago, colonial authorities and the Haudenosaunee agreed to treat a serious crime consistent with the norms of the Haudenosaunee. That agreement respected the cultural and political distinctiveness of the Haudenosaunee. That political relationship is at the core of tribal and non-tribal relations. In relationship to the federal government, the category “Indian”—now coming under attack as an illicit “racial” category—encompasses over 574 distinct nations. Where federal law applies, the interpretive norms governing the statute or doctrine in question, for the most part, are uniformly applied, washing all those differences out. In matters subject to exclusive tribal jurisdiction, the norms of the various tribes apply. What those outside the tribal community might think is or ought to be immaterial. There is the inherent retained sovereignty of tribal nations that should hold outsiders at bay, or there may be a treaty that defines agreed-upon limits between the parties. The constitution does not, by its terms, apply to the tribes themselves and their internal operations.

The recent pressure to reconsider the insular cases suggests that there may be another class of parties to whom US imperial history compels us to rethink how federal law should be applied. These examples illustrate when resorting to cultural immunity ought to matter. (The Major Crimes Act, an egregious assault on tribal sovereignty, was enacted precisely to bring tribal criminal jurisdiction for some crimes into the control of the colonial powers.) There is conflict among some of the people in the territories controlled by the US over whether and to what extent federal control should be extended further
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Professor Hernández should be applauded for peeling back many layers that obscure anti-black racism. By tackling the loaded subject of Latino anti-blackness, she tells us what solidarity should look like. Without a direct confrontation of internalized racism, regardless of its cultural form, she is clear that the tools of racism will be used to blunt the power of a vital Latinidad. Then she asks: in whose service is that?

The vital challenge she puts to us is to construct anti-racist politics from the ground up and to disable legal impediments to that task even when they are deployed in a putatively solicitous manner. In the current legal and political environment, one could scarcely imagine a more critical job.

Gerald Torres is Professor of Environmental Justice and Professor of Law at Yale University. You can reach him by e-mail at gerald.torres@yale.edu.

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