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If one walked into the Jackson County, Texas Courthouse in the early 1950s, one would have noticed two signs above the entrance to the men's lavatories. Inside were two toilets. One toilet remained unmarked while the other toilet held a segregated designation stating, “Hombres aqui,” or “Men here." [1] This sign marked a clear social separation. This sign showed America that there was another race beside African Americans that received discrimination in the usage of facilities. Most of all, this sign reflected the skewed legal culture of Texas.
Problems with the social placement of Mexican Americans began with the Treaty of Guadalupe Hidalgo, which failed to clearly designate the social status Mexican Americans. This created a social paradox. Like the Constitution, the open interpretation of the social status of Mexican Americans was decided upon by those in power, namely white elites. In Texas, Mexican Americans received a unique social station. Mexican Americans were regarded as “legally white but not socially white.” Over time, Mexican Americans experienced discrimination similar to African Americans, yet were not subjected to the full gamut of discrimination because Mexican Americans were legally regarded as part of the white race. While this bi-racial system worked for Texas for a century, it soon failed because of legal exclusion of Mexican Americans by white control.[2]
The landmark case of Hernandez v. Texas was the first step to cure the legal exclusion of Mexican Americans before Texas law. According to Chief Justice Earl Warren, the “Hombres aqui” sign above the toilets was a major piece of evidence clearly showing Texas had created a faulty bi-racial system that must be changed, however, the most important part of the Court's decision was the expansion of the due process clause beyond whites and African Americans. Mexican Americans no longer had to be referred to as the “other white” but could now emerge, form a separate racial class, and take the first steps towards realizing full rights under the United States (US) Constitution as well as under Texas state law.[3]
Part One: Creation of the “Other White”
Today, Mexican Americans are recognized as an independent race or at the very least, part of the Hispanic racial designation. Until the decision of Hernandez in 1954, Mexican Americans were commonly grouped as part of the white race or placed in a subcategory known as the “other white.” The relegation of Mexican Americans as inferior whites created a juxtaposition of the races in Texas. Mexican Americans received the legal benefits of being counted as white, however, their inferior status garnered them the social discrimination associated with African Americans. In order to properly separate themselves as a distinct class and gain full access to civil rights, Mexican Americans had to overcome the improper social status placed upon them by the misinterpretations of white elites from the Treaty of Guadalupe Hidalgo in 1848.[4]
Formally ending the Mexican-American War in 1848, the Treaty of Guadalupe Hidalgo helped secure citizenship for Mexican Americans. The treaty stipulated that persons of Mexican descent remaining in the land ceded to the US had two choices. First, a Mexican citizen may announce their intent to remain a citizen of Mexico and have restricted access to full American rights, such as not being able to vote or second, become a full citizen of the US after one year and renounce any claims to Mexican citizenship. While the treaty provided a conclusive decision to Mexican or American rights, the treaty was a failure because it did not set forth any guidelines for the creation of Mexican Americans as a separate racial class. Whether this was an oversight or not to be included in the treaty is regardless because the exclusion of such language allowed interpretation of racial recognition to be left to Anglo-American state and federal officials. The only certainty that Mexican Americans had in relation to their racial recognition was that they were definitely not African American.[5]
Mexican Americans struggled to gain equality before Anglos because of fears created by a drastic increase in the Mexican American population. Historian David Montejano contends that Mexican Americans' influence in government declined as their rights to property declined. In the first quarter of the twentieth century, the population of Mexicans skyrocketed as many poor and displaced Mexicans crossed the border into America as Anglo business owners in the Midwest began to recruit them as a cheap source of labor. In addition to Midwest companies, the South, particularly Texas, saw a large-scale development of agriculture, in which Mexicans were used as the primary labor force. Due to the rapid influx of Mexican Americans, for the first time, Anglos considered the increasing Mexican American population an economic and cultural threat. This led to Anglos creating a social structure of segregation that was not encoded by law but rather by local custom.[6]
The new basis to socially segregate Mexican Americans was the same way as African Americans, completely ethnic. Both groups experienced similar forms of segregation in Texas that included schools with inferior resources for educating the youth, restricted access to restaurants, movie theaters, public swimming pools, separate restroom facilities, and denial of residency within any white neighborhood. The lone difference in the social segregation of Mexican Americans and African Americans lay in the determination before the law, as Mexican Americans were still considered white. As both groups began to seek greater rights and equality before the law, both had to achieve success in separate ways. Whereas African Americans had the advantage of proving a denial of equal protection before the law, Mexican Americans had to prove a denial of due process. The refusal of jury service provided an avenue in which Mexican Americans could expose the refusal of equal rights under Texas state law as well as the US Constitution.[7]
Part Two: Legal Subjugation by Jury Selection
How did jury selection become the main argument of Mexican Americans to show that due process was not being fulfilled? First, the state of Texas showed racial negligence by purposefully excluding Mexican Americans on petit and grand juries. Second, exclusion of jury service armed Mexican Americans with evidence of failure to execute the full rights of citizenship, which was protected by the due process clause of the Fourteenth Amendment, not social preference.
Why did Texas exclude Mexican Americans from jury selection? As previously stated, the beginnings of the exclusion lay in the view of Mexican Americans as a cultural and economic threat. Apparently, there existed a great fear of the politicization of Mexican Americans as Anglos believed that the moral inferiority of Mexican Americans disqualified them from one of the key rights of citizenship, jury selection. According to historian Clare Sheridan, “Judging criminal or civil wrongs is also far more intimate than voting.”[8] She opines that whites excluded Mexican American in jury selection because the jury box requires close contact and sharing physical space. Previously, the sharing of any proximity or space was dictated by Anglos to Mexicans. Jury selection would remove this power from Anglos and make the process non-arbitrary, which was not a power Anglos were willing to cede. Sheridan's second reason for exclusion of Mexican Americans from jury selection was the refusal of Anglos to cede moral judgment to an allegedly inferior race.[9] Just as with space, Anglos had created a tradition of establishing the moral judgment and forcing Mexicans to abide by it. Jury selection would place Anglos on equal moral standing with Mexicans, meaning the convictions and evaluations of Mexicans would have as much value as white. Social exclusion was not enough. Anglos felt they had to find a way to exclude Mexican American citizens from jury selection that could legally stand.[10]
Anglos attacked Mexican Americans' proficiency with the English language as a means of exclusion from jury selection. Historian Steven F. Wilson argues, “Many Anglo school officials believed, or at least pretended to believe, that all Mexican-descended students lacked English proficiency.”[11] Apparently, the belief that Mexican Americans lacked English proficiency spread and was enough to satisfy the various commissioners that selected juries as the state later conceded in Hernandez that no person of Mexican American or Latin American descent had served on a jury in Jackson County in over twenty-five years prior to the decision of Hernandez . Kevin Johnson of the University of Houston Law Center, states that 14% of the population in Jackson County was of Mexican heritage, as well as 11% over the age of 21 (the minimum age of eligibility for jury service) had surnames of Spanish origins in 1954.[12]
After being indicted for the murder of Joe Espinsosa, Pedro (Pete) Hernandez faced an all-white jury in Edna, Texas and was quickly found guilty. While an all-white jury was not unusual in Jackson County, Texas, Hernandez was the first to successfully challenge the legal validity of a discriminatory jury selection process. How could an all-white jury properly represent the community as well as remain impartial? Hernandez appealed his case before the Texas Court of Criminal Appeals, where he lost as the Court found no error by Jackson County in selecting what they had determined to be “eligible jurors” according to Texas state law and practice. The state affirmed that the Fourteenth Amendment was only for the protection of African Americans, not Mexican Americans and left Hernandez with one option, the US Supreme Court. On October 12, 1953, the Supreme Court granted a writ of certiorari and announced the hearing for the coming term.[13]
Part Three: Arguing Due Process
The only way for the Hernandez case to successfully have any effect in overturning Mexican American subjugation to the Jim Crow laws of Texas was to challenge the interpretation of the doctrine of due process of the Fourteenth Amendment of the US Constitution. The burden to prove the case by due process allowed the lawyers of the Hernandez case a greater range of evidence by showing the Supreme Court specific local examples of the social relegation of Mexican Americans by Anglos in Texas. Next, the team had to argue that social relegation required the usage of the due process clause to protect the equal rights of Mexican Americans before the law.
While some may point out that the Sixth Amendment provided the Hernandez defense team with a clear argument of a partial jury, this line of reasoning would not have been as beneficial to Mexican Americans. The best outcome would have been a retrial, possibly at a different venue, with a newly selected jury. Arguing a partial jury would not have shown true social separation between Mexican Americans and Anglos, only that some, if not all, of the jurors had a predisposition against Mexican Americans. The Sixth Amendment of the US Constitution reads:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.[14]
As far as the Court was concerned, there existed no failure in the Hernandez trial that would have allowed application of the Sixth Amendment protections. The case was tried in Jackson County, Texas, the scene of the crime. The trial was speedy, as Michael Olivas notes that Pete Hernandez was indicted of murder by grand and petit juries within 24 hours of the murder. Pete Hernandez was aware of the crime of murder, was confronted by witnesses against him, and had counsel for his defense. The only argument Hernandez could use the Sixth Amendment for was against a partial jury, however, the burden of the argument was narrowed to proving partiality among each individual juror, not discrepancies in the jury selection process. In addition, this would have restricted any ruling by an appellate court to apply for a retrial of the original Hernandez case. This was not the goal. The goal was to show discrimination of Mexican Americans in Texas and prove that the Jim Crow laws held a double standard that needed to be broken. Due process was the only valid argument.[15]
The Hernandez defense team first had to show the Court that racial separation had occurred. Before the Supreme Court, the League of United Latin American Citizens, arguing on behalf of Hernandez, presented evidence proving racial separation had occurred in Jackson County, Texas. First was a sign above a prominent restaurant that read “No Mexicans Served,” a documented list of residents that routinely socially differentiated between “whites” and “Mexicans,” a list of business and civic groups that excluded Mexican Americans, examples of segregated schools, and the most blatant of all signs, the “Hombres aqui” toilet sign on the Jackson County courthouse. Jackson County's population was 15% Mexican American, proving that it constituted a significant segment. Yet, not a single juror in twenty-five years had a Spanish surname, leaving the assumption that no Mexican American had served on a jury for the given time. Ian Haney Lopez also adds that the dearth of Mexican Americans on a jury had been longer than twenty-five years, to a point that no one could remember the last time a Mexican American had sat on a jury in Jackson County, Texas. [16] The end result was that Jackson County was guilty of systematic exclusion of Mexican American and had clearly shown that racism was not static nor was racism limited to African Americans alone.[17]
The argument of jury exclusion of Mexican Americans was that social separation led to the non-fulfillment of Constitutional rights of Mexican American citizens as well as the privileges of full citizenship, including jury duty, had been denied by Anglo-controlled Texas. The Hernandez defense team argued that the rights of the Fourteenth Amendment had been violated and that due process had not been served. The first Section of the Fourteenth Amendment of the US Constitution reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[18]
The Hernandez team argued that the exclusion of Mexican Americans from jury lists was an abridgement of privileges of US citizens and a failure to ensure due process. Using the precedent of Norris v. Alabama , the Hernandez team opined that the Fourteenth Amendment applied to Mexican Americans because they constituted a significant portion of Texan society and their rights had been clearly limited by Anglo-controlled Texas. Norris stated that the “systematic or arbitrary exclusion of Negroes from jury lists based solely on race or color was a denial of equal rights.”[19] If African Americans could not be excluded from jury lists, how could Mexican Americans be excluded, especially with the designation of Mexican Americans being “legally white”?
Part Four: The Decision, Criticisms, and Why It Matters
Decided on May 3, 1954, the Supreme Court overruled the Texas Court of Criminal Appeals and found that the exclusion of Mexican Americans from jury lists violated the due process clause of the Fourteenth Amendment. The Court also found there existed more classes than two standard designations of white and Negro and in Texas, “Mexican Americans constituted a separate class, distinct from ‘whites.'” The Court overturned the conviction of Pete Hernandez in Jackson County and a re-trial was ordered, taking place in Refugio County, Texas on November 15, 1954.[20]
Yet, the decision has been criticized by a small number of historians, seeing the gains made as a matter of circumstance and not law. With all the gains from the decision of the Supreme Court, the Court did not designate Mexican Americans as a separately recognized class. Kevin R. Johnson states that the decision was influenced by the background of Chief Justice Earl Warren. According to Johnson, Warren had experienced one of the “most concentrated and well-publicized periods of anti-Mexican violence in California in the entire twentieth-century,” leading one to believe that Warren made this decision out of appeasement rather than out of due process. Ian Haney Lopez states that the Hernandez decision is flawed, “Because in Hernandez , the Court could not rely on race per se, however, it was forced to explain why groups deserve Constitutional protection in general and thereby pushed to identify social practices rather than the nature of group identity as the core issue.” Lopez opines that the Court's decision in Brown v. Board of Education was completely opposite of Hernandez . In Brown , the Court stated that individual groups could be protected because of race, not social practice. To Lopez, this shows that the Court was ready to protect one but not all.[21]
Despite any criticism of the outcome, this case does matter. Hernandez opened America's eyes to realize that there is a brown, not just black and white. This case showed that everyone is entitled to full Constitutional rights of due process, not just minority classes. Hernandez also set the precedent for the decision of Brown to eradicate public discrimination. For the first time in their history, Mexican Americans had a landmark Supreme Court case of their own that specifically ensured them equality before the law. While the fight for equal rights and the fulfillment of promises continues today, one thing is for certain, none of us will ever again be forced to enter a toilet designated, “Hombres aqui.”[22]
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