71 Am. U. L. Rev. 579 (2021).

Abstract

The United States is undergoing a demographic transformation. Nearly one in five Americans already is Latinx, and the United States Census Bureau projects that by 2060, nearly one in three will be. Latinx will substantially outnumber every other historically underrepresented racial and ethnic minority group, and non-Hispanic whites no longer will be a majority. Those changes have unsettled traditional approaches to full inclusion.

Civil rights activists have suffered numerous setbacks, and the burgeoning Latinx population is searching for other paths to belonging. Some leaders have turned to growing Latinx market power to demand recognition and equal opportunity. These efforts rely heavily on aggregate contributions that Latinx make to the labor force, consumption of goods and services, and entrepreneurship. Advocates use these statistics to show that Latinx are vital to continued prosperity for all Americans.

Aggregate statistics do not grapple with the internal heterogeneity of the Latinx population, particularly along lines of class and immigration status. Nor do the numbers address the ways in which the law itself constrains market participation. Earlier movements to promote economic empowerment are instructive. Marcus Garvey’s Universal Negro Improvement Association (UNIA), though not a Latinx movement, mobilized working-class Black Americans to advance race pride and an enterprising spirit. That initiative foundered in the face of two implacable forces: opposition from middle-class Black leaders committed to a civil rights agenda and a capitalist system that made little room for entrepreneurship by poor people. Cesar Chavez’s labor organizing for the United Farm Workers (UFW) is the most famous mobilization to advance Latinx economic interests, and his movement continues to influence activists to this day. The UFW’s rise and fall reveal how disputes over the treatment of the undocumented and legal battles over union tactics divided the membership and drained precious resources.

These lessons of history reveal the limits of both market aggregation and traditional civil rights strategies in addressing contemporary Latinx labor force participation, political consumerism, and entrepreneurship. Aggregation conceals distinct challenges that Latinx face depending on whether they are working-class or middle-class, undocumented or legally present. For working- class and undocumented Latinx, the most essential reforms depart from a civil rights framework, requiring structural investments in human capital and comprehensive immigration reform. For middle-class and legally present Latinx, civil rights can be a useful tool in fighting discrimination on the job and in lending markets. However, new approaches will be needed to address exclusionary social networks, which create barriers to advancement at work and limit access to capital. To leverage growing numbers, Latinx therefore must forge innovative strategies that recognize the intricate interdependency of the civic square and the marketplace.

* Distinguished Professor of Law, University of California Irvine School of Law. I would like to thank faculty who provided helpful feedback during workshops at the Texas A&M University School of Law, University of Connecticut School of Law, and University of California Irvine School of Law, and I am grateful to Professor Carrie Menkel-Meadow for detailed written comments on an earlier draft as well as to Professor Luz Herrera for her helpful feedback. I also want to express my appreciation to Ajay Mehrotra and Robert L. Nelson for the American Bar Foundation’s ongoing support of a project on “The Future of Latinos in the United States: Law, Opportunity, and Mobility,” which inspired much of this work. Finally, I benefited greatly from the research assistance I received from Priyanka Amirneni, Avi Oved, and Sofia Pedroza at University of California, Los Angeles School of Law and Richard Westmoreland at University of California Irvine School of Law. I acknowledge James Baldwin’s book “The Fire Next Time” on race and civil rights as the inspiration for this title. James Baldwin, The Fire Next Time (1963).