25 July 2013

Scholar in Residence (Cultural Studies, Critical Theory, Public Policy), Western New Mexico University

he Zimmerman trial decision will not be the last of such decisions rendered as the outcomes of trials involving race and the pursuit of justice in the American judicial system—this isn’t a cynical reaction to the Jury’s verdict of the Zimmerman trial, just a realistic response to the historical facts about white America and its racial minorities. This is not a blanket indictment of white America but, rather, a critique of American institutional racism anent nonwhite minority Americans. The verdicts of American trials by jury do not necessarily constitute justice. Those KKK trials in the non-repentant Confederacy states from the reconstruction 1880’s to the 1970’s did not render verdicts one would call “justice” by any stretch of the imagination. They were verdicts of “Lynch Law.” And just when many Americans were touting the belief that America was nearing the next level of post-racial consciousness, Zimmerman appears on the scene. But there are George Zimmermans everywhere in America. And we are far from a post-racial society.


Our concepts of race do not emerge from antiquity. They spring from the Age of Enlightenment in Europe. Notions of race, predicated on a matrix of ancestry, ethnicity, religion, and cultural practices, reveal how deep-seated racial prejudice is. The Jefferson ideal of equality falls short in American discussions of race. Despite the ideal, Jefferson himself believed that the differences between the races were “fixed in nature” and therefore the equality set out in the Declaration of Independence did not apply to all. Much of this philosophy has seeped into the current flap over a Harvard dissertation on Hispanics and their genetically low I.Q’s (Ortego, 2013). Next, they’ll be measuring our noses. At the core of American racial studies one finds the American School of Anthropology and its theory of polygeny—that a hierarchy of human races had separate creations. Like the Nazi school of human differences, the American anthropologist Samuel Morton developed a scheme of racial differences based on cranial capacity to prove his theory that “Caucasian and Mongolian

races had the highest cranial capacity and therefore the highest levels of intelligence, while Africans had the lowest cranial capacity and thus the lowest levels of intelligence” (Morton). Interestingly, the renowned French philosopher Gobineau whose work An Essay on the Inequality of the Human Races (1853-1855) is considered one of the earliest examples of “scientific racism.” Today, Gobineau’s views on race have been widely discredited with the growing contention that “race’ is “not a useful classificatory tool” (Yudell, 2009). Yet, everywhere “race” has become a focal topic of politics and social conversations reflecting the human propensity to differentiate human populations. Currently, according to Michael Yudell, historians and social scientists believe that the concept of “race” is a social construction. Modern racism predicates its notions of race based on the biology of hereditary genetics. This eugenic concept of race gave way to a 20th century concept of racial ideology and opposition to miscegenation in fear of weakening the white race; ergo the unalterable proposition that “neither education, nor change in environment or climate, nor the eradication of racism itself could alter the fate of non-whites” (Ibid.) In 1924, Virginia passed a Racial Integrity Act, an anti miscegenation law “to stop what it feared to be the mongrelization of the races” (Ibid.). The classification of individuals by race came to a head in the United States in the latter half of the 20th century with the U.S. Supreme Court Decision in Brown v. Board of Education in which Gunnar Myrdal’s An American Dilemma: The Negro Problem and Modern Democracy was cited prominently by Thurgood Marshall as were the cases of Westminster v. Mendez (California, 1947) and Delgado v. Bastrop (Texas, 1948), both cases of constitutionality in segregating Mexican American children. The brilliance of Thurgood Marshall’s argument put an end to the social myth of race as a legitimate classificatory tool of people. Rodolfo Acuña, the Chicano historian and author of Occupied America, proffers an acutely philosophical response to the question: Why should Latinos support justice for Trayvon Martin?
It is not only Trayvon Martin who was wronged, it was society. The law is bad and encourages this behavior toward people who look different. Look at the attacks and murders of undocumented immigrants. In supporting . . . Trayvon Martin, we are insuring that this injustice will not spread” “Sometimes you have to shout to be heard,” Web, July 17, 2013.

By and large, Acuña’s response points out that by extension Latinos are in t hat mix of racial targets for race mongerers. As the immigration brouhaha emerged in the first decade of the 21 st century, we were not exempt as racial targets. Philosophically, justice is thought of as the product of thoughtful judicial inquiry in pursuit of “the truth.” But in the adversarial system of justice that has evolved in the United States, pursuit of “the truth” has given way to pursuit of personal victory, cloaked often in the raiments of ambition, venality and/or racism. In other words, “truth” often becomes the first victim in a judicial system that emphasizes victory—at any cost—over the interests of the individual or the community (which justice ought to serve— instead, the judicial system seems to serve the interests of the rich over the poor, the interests of whites over blacks, the interests of Anglos over Mexican Americans. In the case of Mexican Americans, xenophobia has come to a head not just in Arizona but throughout the United States. Everywhere in the country, a “Round ‘em up (meaning Mexicans), Brand ‘em, then Kick ‘em out” attitude has roiled xenophobia such that clear-heads are silenced aborning. In the administration of justice for Mexicans and Mexican Americans, justice is oftentimes largely accidental which is why talking about “race and Justice: is a

misnomer; it should be “race and the legal system.” As in the case of blacks, once in the hands of the law, Latino Americans too are often seen by law enforcement officers as aliens without rights, to be abused and mistreated with impunity. This was the case with Trayvon Martin. He was seen by George Zimmerman as “the other” to be abused and mistreated with impunity simply because he was “the other.” “Contempt” often characterizes the attitude of law enforcement towards “the others,” a contempt whose roots go deep into the history of the United States, and which unless expunged will continue to produce only the bitter fruit of hatred and distrust—and God knows what kind of retaliatory responses by “the others.” Unfortunately, the trial of George Zimmerman was transmogrified into the trial of Trayvon Martin where the victim is the villain ergo deserving of death. ndeed, contempt does not characterize all law enforcement in America. Our concern here lies in the abuses of authority and power that have erupted throughout the states in recent times and the judicial verdicts which have exonerated those abuses and excesses of authority and power.


In the 1970’s a reign of police abuses plagued Mexican Americans in Texas, the effects of which are still with us. An inordinate number of Mexican Americans died while in police custody. Explanations varied, but all placed blame on the Mexican Americans in custody. In case after case involving deaths of Mexican Americans while in police custody, grand juries exonerated or no-billed law-enforcement agents (See “The Quality of Justice” by Felipe de Ortego y Gasca, LULAC Word, April 1978). As in the case of George Zimmerman, such disdain for the lives of Mexican Americans reflected attitudes of yesteryear when, for example, King Fisher, the famous Texas lawman, was asked how many men he had killed, he replied: thirtyseven, not counting Mexicans. Such disdain for the lives of Mexican Americans reflects attitudes which gave rise to the legendary “law west of the Pecos,” a law which dealt summarily with Mexican Americans and by which few—if any—juries in Texas ever convicted an Anglo for killing a “Meskin.” In Florida now it seems like “open season” for whites to kill blacks, using the “Stand Your Ground” excuse as an extension of “law east of the Pesos”—I eschew the word “defense” here. This seems to be the attitude of Representative Andy Harris (R-MD), who in a USA Today story told the American people “to get over it” [meaning the Zimmerman verdict] . . . “that’s the way the American system works” (Camia). Right! That is the way the American system works. It works to the benefit of the dominant white power structure. All of us “others” must come to the realization that altruism does not move the heart of the American judicial system. The judicial lot of “the others” will improve when they organize to protest the unequal and select application of the law. Frederick Douglas, the great black emancipator, put it best when he explained that the limits of oppression are set not by the oppressor but by the oppressed. It is time for all Americans to establish limits to all oppression against them. A people on its knees see only the heels of its oppressors; a people on its feet are something formidable to reckon with. Emiliano Zapata said it

best: It is better to die on one’s feet then to live on one’s knees. This is not a clarion call for revolution; it is a clarion call for respect (R-E-S-P-E-C-T) and dignity. The deaths of Larry Lozano , Jose Campos Torres, and Richard Morales (to name but a few of the Mexican Americans killed over the years while in police custody) still grieve us (see “Violence Must be Terminated” by Felipe de Ortego y Gasca, San Angelo Standard Times, February 15, 1978). A society of laws means that adherence to the law is everyone’s responsibility. A “free pass” for George Zimmerman for the murder of Trayvon Martin is not justice. Finding George Zimmerman “not guilty” does not mean he is innocent. It means the allwhite-female jury did not find him guilty of Second degree murder or Manslaughter as charged—by virtue of the Prosecution not making the case for those charges against Zimmerman. This takes on the character of KKK justice. Indeed, as Rudy Acuña put it: “It is not only Trayvon Martin who was wronged, it was society.” Henry David Thoreau opined that “A country of conscientious citizens is a country with a conscience. That means that every citizen bears responsibility for the conduct of the country; that every citizen is concerned about the conduct of fellow citizens” (On Civil Disobedience). Thoreau would not have said “Get over it!” Like Rudy Acuña, I too am convinced that if Trayvon Martin looked different (that is, not looked black) he would be alive today. Can we blame Trayvon Martin’s death on an “unjust law”? The “Stand Your Ground” law in Florida is an unjust law just as it is in the more than 20 states that have passed such a law. For St. Augustine, an unjust law is not law at all. And though undetermined as a quotation, Thomas Jefferson is reputed to have averred that "If a law is unjust, a man is not only right to disobey it, he is obligated to do so." For Martin Luther King, Jr., “An unjust law is a code that is out of harmony with the moral law.” These perspectives on an unjust law place President Obama on precarious ground when he asks us to respect the verdict of the Zimmerman jury by emphasizing that we are a nation of laws. He’s right, of course, but a nation whose laws do not respect its citizens is not a nation with a conscience. Characterizing the United States as a nation aspiring to be a “color blind” society papers-over the realities of the nation. The President is black: Are we “color blind” to that? The problem may be that our nation is not a “united states” but a Balkanization of fiefdoms committed to their own self-interests, not the common good of the Union. Ironically, Florida is the same state where a judge sentenced a Florida woman to 20 years in prison for firing a warning shot in an effort to scare off her abusive husband. Perhaps it’s time to take the blindfold off Lady Justice. Yes, historically we have been a nation of laws—many of them unjust. Americans have come to believe in the inerrancy of the U.S. Supreme Court—that it is the beneficent guardian of American freedoms. That’s far from the truth—particularly in an era of competing political ideologies. This myth of the U.S. Supreme Court as Guardian of American freedoms has become so much a part of the fabric of American myths that it stands un-questioned as a beacon of light in the dark night of the American soul. This is not to diminish the good work of the U.S. Supreme Court—for example, Brown v. Board of Education, 1954, which struck down the “separate but equal doctrine” of some 60 years. In 1859, however, the U.S. Supreme Court upheld the Fugitive Slave Law of 1850 when challenged by abolitionists. The turmoil of the Supreme Court’s decision to uphold the Fugitive

Slave Law of 1850 led to mass migrations of African Americans to Canada in order to escape the purview of the law which on more occasions than not ignored the distinction between African Americans who were slaves and those who were not—those who had been free their entire lives. A more pernicious decision by the Supreme Court was rendered in 1857 in the Dred Scott case with Roger B. Taney as the Chief Justice. In the Dred Scott decision, the Supreme Court ruled that no slave or descendant of a slave could be a U.S. citizen. Therefore, as a non-citizen, Scott had no legal standing to sue for his freedom in Federal Court and must remain a slave. Frederick Douglass was moved write: “There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour . . . for revolting barbarity and shameless hypocrisy, America reigns without a rival” (http:// www.history isaweapon.com/defconI/douglassjuly.html). In 1896 the Supreme Court ruled in the case of Plessy v. Ferguson that Homer Plessy, an African American, jailed in 1892 for sitting in a “white” railroad car of the East Louisiana Railroad that his rights under the 13th and 14th amendments to the Constitution were not violated by his arrest in refusing to sit in the “colored car,” establishing thus the “separate but equal doctrine.” These were shamelessly unjust decisions based on shamelessly apodictic laws that garnered favor in the 19th early 20th centuries but have no place in 21st century America. Let’s stop kidding ourselves! Faith is important, but we have to redouble our effort in the political arena that spawns presidents, senators, representatives, governors, mayors, police chiefs, district attorneys and juries who see little wrong in the killing of blacks, Latinos and gays. This is a consummation devoutly to be wished, as Hamlet would put it. Challenging but not insurmountable. WORKS CONSULTED AND CITED Acuña, Rodolfo. Occupied America: A History of Chicanos (7TH Edition), 2010. Camia, Catalina, “GOP rep on Zimmerman verdict: 'Get over it',” USA Today, July 17, 2013. Douglas, Frederick, "Narrative of the life of Frederick Douglass, an American Slave" The Heath Anthology of American Literature. Ed. Paul Lauter. Boston: Houghton Mifflin 1998 Gobineau, Joseph Arthur, Compte de, An Essay on the Inequality of the Human Races (18531855) Morton, Samuel George, Crania Americana, 1839. Myrdal, Gunnar. An American Dilemma: The Negro Problem and Modern Democracy, 1944. Ortego y Gasca, Felipe, “Violence Must be Terminated,” San Angelo Standard Times, February 15, 1978. Reprinted in LULAC Word (publication of the Texas State LULAC), March 1978. Ortego y Gasca, Felipe, “The Quality of Justice,” LULAC Word, April 1978. Ortego y Gasca, Felipe, “Mexican Americans and the Administration of Justice in Texas,” LULAC Word, May 1978. Ortego y Gasca, Felipe, “Round ‘em up, Brand ‘em, Then Kick ‘em out: American Latinos and the Rhetoric of Hate,” From Somos en Escrito: The Latino Literary On-line Magazine, May 5, 2010; posted on Facebook Poets Against Arizona SB 1070, May 6, 2010; posted on Aztlan Libre Press, May 6, 2010. Ortego y Gasca, Felipe, “The Harvard Affair on Race and IQ,” Historia Chicana, May 31, 2013.

Thoreau, Henry David. On Civil Disobedience, 1849. Yudell, Michael, “A Short History of the Race Concept,” GeneWatch, CRG Council for Responsible Genetics, Volume 22, 4, 3, July 21, 2009 

Historia Chicana
Mexican American Studies University of North Texas
Denton, Texas

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