Four Reservations on Civil Rights Reasoning By Analogy: The Case of Latinos and Other Nonblack Groups

 
By: Richard Delgado

 

The protection of civil rights in the United States encompasses remedies for at least five separate groups. Native Americans have suffered extermination, removal, denial of sovereignty, and destruction of culture; Latinos, conquest and the indignities of a racially discriminatory immigration system. Asian Americans suffered exclusion, wartime internment, and discriminatory labor laws. Middle Eastern people suffer from suspicion that they are terrorists. Blacks suffered slavery and Jim Crow.
 
Yet our system of civil rights derives, in large part, from the experience of only Blacks, and aims to redress a single, momentous harm, namely slavery and its lingering effects. This is particularly true of the Thirteenth Amendment, which aims to abolish slavery and other condi- tions reminiscent of it.
 
American case law, particularly in connection with matters of race, proceeds largely through a process of analogy in which courts compare the case before them to a previous decision or statute. Nonblack groups sometimes have been able to analogize their predicaments to ones that Blacks suffer, but often this has proven difficult. Thus, afflictions that visit few Blacks, such as wartime internment and language discrimination, can easily go unremedied under American law.
 
This Essay discusses a number of obstacles that lie in the way of protecting Latinos and other nonblack minority groups under the current framework of statutory and constitutional civil rights, including the Thirteenth Amendment. After discussing drawbacks associated with a system of civil rights protection still inflected with the rhetoric and norms of the 1960s civil rights movement, the Essay closes by arguing that an increasingly multiracial society such as this one needs to develop a broader, more inclusive framework and—with Latinos in mind— sketches one.

 

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