The "Otherized" Latino: Edward Said's Orientalism Theory and Reforming Suspect Class Analysis
Despite Latinos’ growing political influence, discrimination against Latinos persists. W.E.B. DuBois wrote in 1903, “The problem of the Twentieth Century is the problem of the color line . . . .” Today, the color line has expanded beyond the white-black racial dichotomy, and Latinos stand at the forefront of our national discussion about race, politics, and society. In this discussion and amid evidence of prejudice, a central legal question arises: Does the Supreme Court’s current analytical framework for the Fourteenth Amendment Equal Protection Clause adequately protect the Latino population from discriminatory laws and state action? This Comment concludes that the Court’s case law about the suspect class status of Latinos is unclear and unlikely to effectively protect Latinos from stigmatizing legislation. This Comment will provide a new analytical framework that can guide the Court in bringing clarity to the issue and ultimately protect Latinos’ civil rights.
Part I begins by briefly examining the development of heightened scrutiny under the Equal Protection Clause for laws that discriminate based on racial and national origin classifications. Part I finds that the classification of Latinos as a “suspect group” meriting such scrutiny in fact rests on uncertain legal ground due to the Court’s confusing case law, aggravating historical factors, and current demographic patterns. It reveals that while the legal conclusions remain muddled about whether Latinos are a suspect class, the public perception of Latinos as a distinct population group has grown. This Part also explains why the application of heightened scrutiny to classifications of various national origin groups, like Mexican Americans or Cuban Americans, is insufficient to adequately protect the civil rights of Latinos as a broader population group. Part I thus advocates that the Court solidify the constitutional status of the broader Latino classification as a suspect class.
Part II examines how the Court, when determining which racial and ethnic categorizations merit suspect class analysis, often describes race as a purely biological concept. Part II argues, however, that race is not a biological concept, but is instead a social concept. It asserts that if the biological conception of race continues to prevail in suspect class determinations, then it is unlikely that Latinos, an incredibly diverse population, will fit within a coherent racial classification. As a result, the constitutional status of the Latino classification will remain in jeopardy. Part II thus urges the Court to embrace the scientific and anthropological research showing that race is in fact a socially constructed concept. It maintains that the Court must analyze race in a new and sensible way that reflects its social, instead of biological, foundations. A new framework will not only align the Court with modern science, but it will also subsequently better accommodate the Latino categorization.
Part III introduces such a new analytical framework, relying on the work of anthropologist Edward Said in his seminal work Orientalism. Said explains how the Western world developed an “us” versus “them” political dichotomy when conceptualizing the Middle East, resulting in the creation of the foreign and inferior “Other.” Part III proposes that the Court borrow this “us” versus “them” framework to rework suspect class analysis to ask whether a group has become “otherized” by the dominant Anglo-American society to an extent that subsequently warrants suspect class analysis and heightened scrutiny. By asking this new question, the Court will develop an analysis that properly foregoes a biological discussion, adequately acknowledges the social construction of race, and ultimately reflects the social and political reality of the way that discrimination operates in the United States. This new “otherization” framework will also ensure that Latinos, a population group often described as outsiders who do not speak English and who do not share American values, are sufficiently protected through the Equal Protection Clause. Part III concludes by addressing questions and critiques about the framework’s implementation.
The "Otherized" Latino: Edward Said's Orientalism Theory and Reforming Suspect Class Analysis,
U. Pa. J. Const. L.
Available at: https://scholarship.law.upenn.edu/jcl/vol16/iss3/6