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 Abstract

Excerpted From: Rachel F. Moran, The Pocketbook next Time: from Civil Rights to Market Power in the Latinx Community, 71 American University Law Review 579 (December, 2021)(404 Footnotes) (Full Document)

In recent years, leading members of the Latinx business community have been calling for a new path to full integration into American life, one that relies more on market power than on civil rights. According to these leaders, much of the real growth in productivity in the United States reflects Latinx contributions to the economy. As a result, all Americans are dependent on Latinx as a source of continued economic expansion and prosperity. Because of this critical role, these leaders believe Latinx will eventually assume their rightful place in our nation's life, not through the civic square but through the free market. There is a certain logic to these demands for Latinx recognition. After all, the need for workers, especially in low-wage jobs, has fueled much of Latinx migration to the United States. Recent calls for economic respect and empowerment do not, however, single out low-wage labor markets or reckon with income and wealth inequality. On the contrary, these nascent efforts typically aggregate the impact that all Latinx have on the economy, and much of the case for recognition rests at least as much on entrepreneurship as on labor force contributions.

The strategy of aggregation perhaps should come as no surprise, given its well-developed roots in both the civil rights and business worlds. The addition of the Hispanic-origin classification to the U.S. Census was, after all, a product of lobbying by both social justice activists and Spanish-language media executives. While activists sought recognition to bolster an anti-discrimination agenda, executives wanted acknowledgment of their market share to boost advertising revenue.

When Latinx began to push for official recognition of the Hispanic-origin classification in the 1960s, they were a small fraction of the U.S. population and substantially outnumbered by Black Americans. Today, however, that demographic picture has changed dramatically. Latinx already make up nearly 19% of the U.S. population, and according to U.S. Census Bureau projections, that number will jump to nearly 28% by 2060. When Latinx reach this milestone, non-Hispanic whites are projected to account for 43.6% of the population; Black Americans, 14.3%; and Asian Americans, 9.3%. This kind of demographic transformation is unprecedented in American history. Never before has a historically underrepresented racial or ethnic group been expected to make up such a large share of “We the People,” nor have non-Hispanic whites ever been projected to become a minority population.

In the push to create the Hispanic-origin classification, an early coalition of civil rights reformers and media executives obscured some significant differences in how aggregation works for these two interest groups. Those distinctions have become more evident with the Latinx population's rapid growth. A civil rights model turns on both aggregation and disaggregation. Members are aggregated to form an identifiable constituency but are disaggregated to form a discrete and insular minority. Activists and government officials alike make normative judgments in setting the boundaries of racial and ethnic categories. Aggregation can express solidarity, while disaggregation signals exceptionalism. As the Latinx population expands, normative claims about the category have come under increasing scrutiny. Latinx have grown more internally diverse, casting doubt on the cohesiveness of the group, and the population is achieving formidable numbers, raising questions about whether it is still discrete and insular. Dramatic population growth does not pose similar problems for aggregation under a business model. For those who argue that the marketplace is the path to full belonging, cumulating the impact of Latinx economic activity remains an unqualifiedly powerful tool. Rising numbers reflect increased influence without triggering any concerns about whether Latinx should be treated as a minority.

Today's calls for Latinx economic recognition openly diverge from civil rights strategies. As I explain in the first Part of this Article, there are several reasons for the shift besides sheer population growth. Even in the 1960s and 1970s, when Latinx were undeniably a minority and the civil rights movement was in its heyday, advocates had trouble gaining recognition for unique concerns related to linguistic and cultural differences. Then, beginning in the 1980s, civil rights activists faced numerous setbacks, as federal officials increasingly embraced a neoliberal philosophy that emphasized personal responsibility. That ideological turn, with its professed faith in individual choice and free markets, fueled heavy Latinx migration to meet workplace demands while entrenching profound inequalities in wealth and income. For many recent Latinx immigrants, virtue became synonymous with a work ethic, born of the neoliberal gospel of self-reliance and upward mobility that motivated much of their migration in the first place. For these workers and their families, immigration status was central to a landscape of opportunity in the United States, displacing a focus on civil rights.

In truth, the neoliberal impulse to import cheap immigrant labor has always been a Faustian bargain, one that ultimately pits economic advantage against political cohesion. To stave off debates over demographic change and our shared national identity, Congress capped legal migration, which inevitably resulted in large numbers of workers arriving without proper documents. That policy allowed Latinx to meet the American economy's need for low-wage labor without substantially altering the complexion of the nation's citizenry--at least in the short term. Quite predictably, the undocumented population swelled in the intervening decades, even as Congress remained unwilling to enact comprehensive immigration reform. Yet, over the long term, policy inertia has not been a safeguard against a reckoning with the nation's shifting racial and ethnic make-up. Any firewall between the workforce and the polity has been breached by a new generation of Latinx youth, many of them birthright citizens and all of them socialized into America's norms and ideals.

In the next Part of the Article, I explore how recent calls for Latinx economic empowerment rely on aggregation to elide the internal heterogeneity of this community, including many of the intense flashpoints surrounding immigration and American identity. Business leaders have treated all forms of economic participation as a good without interrogating the situation of low-wage Latinx workers, many of whom are undocumented. By sidestepping these issues, proponents of an economic path to full inclusion treat aggregation as an unmitigated virtue. Business leaders characterize the growing Latinx workforce as a source of prosperity for all Americans and eschew any efforts to mobilize to get a bigger share of the economic pie. In this way, those who make the business case for Latinx integration remain a benign voice for free enterprise and avoid the deep divisions that economic inequality brings to the Latinx community as well as the general population.

In the third Part of the Article, I review powerful lessons from history, which show that the quest for economic inclusion is not likely a straightforward matter of aggregation. Two previous initiatives to advance economic participation are particularly instructive: Marcus Garvey's Universal Negro Improvement Association (UNIA) and Cesar Chavez's United Farm Workers (UFW). During the period following World War I, Garvey, a Caribbean immigrant, called for a pan-African movement to advance economic self-reliance and self-determination among Black Americans. In contrast to leaders of the National Association for the Advancement of Colored People (NAACP), he rejected a civil rights campaign that depended heavily on a political process dominated by whites. In fact, Garvey considered the NAACP's initiatives antithetical to genuine Black autonomy, and he supported the creation of Black enterprises as a way to empower the community. That vision inspired the largest social movement among Black Americans ever seen in the United States, but the effort came to naught when federal officials imprisoned Garvey and ultimately deported him. Garvey's defeat marked a significant turning point in addressing inequality in the United States. Advocacy would focus on a domestic paradigm of civil rights, while largely ignoring the imperatives of a global economy.

By the 1960s and 1970s, when Cesar Chavez mobilized farmworkers, the dilemma of a transnational labor force figured prominently in his organizing efforts. In some ways, Chavez's movement was a study in contradictions. He melded social justice with labor organizing, even as he refused to define the UFW in strictly racial and ethnic terms. Though Chavez preached compassion, he struggled to deal with the impact of undocumented immigration on his fledgling movement. Even as Chavez characterized the UFW as labor organizing pure and simple, he departed substantially from a model of business unionism, looking beyond specific workplaces to think broadly about America's agricultural industry as part of a global market. Reflecting that wider perspective, UFW organizers deployed innovative tactics like marches and boycotts to bring powerful growers to the bargaining table.

In the final Part of the Article, I bring the lessons of history to bear on contemporary calls for economic participation as a path to full inclusion in the United States. Both Garvey and Chavez addressed the material conditions of the most severely disadvantaged, and today's efforts could benefit from a similar sensitivity to dimensions like class and immigration status. That awareness would diversify the interventions needed to ensure meaningful access to market participation for all Latinx, whether the focus is labor, consumption, or entrepreneurship. With respect to labor, for example, disciples of Cesar Chavez have inspired modern-day organizing efforts among immigrant workers. Over time, labor unions have come to appreciate the benefits of reaching out to the immigrant workforce, and now immigrants are helping to revitalize, though not wholly resuscitate, labor unions. These gains have been modest, however, and much of the community's future success depends on the intergenerational mobility of Latinx youth. That mobility is far from assured, and even when Latinx join the ranks of the middle class, they may encounter barriers to advancement in the workplace. Traditional civil rights strategies can reach only some of these obstacles to participation.

As for consumption, Latinx activists have built on Chavez's insight that consumers can be powerful allies in the quest for worker dignity-- but only sporadically. Immigrants have orchestrated media campaigns and boycotts to highlight their contributions to the economy and demand reforms to labor and immigration policy. Activists combine these tactics with civil rights strategies like marches and rallies that challenge systemic inequality. So far, however, Latinx have not consistently tapped into political consumerism, an increasingly popular kind of lifestyle politics that allows individuals to vote with their dollars. The limited use of consumerism is somewhat surprising, given the Latinx population's growing market power and the increasing popularity of this strategy. Perhaps that lack of consumer mobilization reflects larger problems in identifying sustained reform agendas that inspire people to alter their market behavior.

In the spirit of Garveyism, there also has been increasing attention to the rise of Latinx entrepreneurship. Not all Latinx start businesses as a voluntary act of self-empowerment. In some instances, economically vulnerable Latinx are entrepreneurs of necessity because they lack opportunities in the conventional job market. Regardless of whether Latinx face daunting prospects or relatively propitious circumstances, lack of access to capital is a serious impediment to launching a successful business. Members of the Latinx working class have few ways to draw on traditional sources of capital, and even middle-class Latinx do not have the same ability to attract capital as their white counterparts. As a result, although Latinx are disproportionately likely to be entrepreneurs, they often must self-finance their businesses or turn to family and friends for funds. Moving beyond aggregation reveals how limited access to capital makes Latinx enterprises precarious despite a widespread spirit of entrepreneurship. Here, too, traditional civil rights strategies cannot address all the problems, which instead require new ways to open privileged social networks that allocate opportunity.

The newfound market power of the Latinx community may well offer unprecedented opportunities to demand full inclusion in the United States. That said, it is also true that simple aggregation of labor force contributions, buying power, or entrepreneurial activity will not be enough to leverage full-bodied reform. Instead, advocates must devise strategies that address the varied challenges facing Latinx with different employment opportunities, household income and wealth, and access to capital. Otherwise, aggregation will conceal the ways in which the civic square and the market are integrally connected. Especially for the most financially vulnerable, government policies--for instance, in the area of immigration--can dramatically expand or contract opportunities to work or start a business. Adding up the outcomes of economic activity can draw attention to growing Latinx market participation, but without innovations that promote equal opportunity, free enterprise alone will not be the foundation for a path to full belonging.

[. . .]

The rise of neoliberalism undoubtedly has weakened the civic square's importance as a pathway to full inclusion. Recent research tells a hopeful story about the market as an alternative route to belonging for Latinx. This work identifies powerful trends that are independent of today's crimped interpretation of civil rights and the vagaries of polarized politics. In the market, raw numbers matter, and Latinx already represent more than a discrete and insular minority when it comes to labor, consumption, and entrepreneurship.

That said, simply adding up the numbers will not be enough to realize the full inclusion that Latinx seek. Reformers must rely on a range of strategies to empower Latinx in widely disparate economic situations. As a result, the optimal power of Latinx' market share will be unleashed only when government officials address ongoing barriers to access, such as limited education, precarious immigration status, and discrimination in the financial world. To leverage growing numbers, then, Latinx must forge innovative approaches that recognize the intricate interdependency of the civic square and the marketplace.

Distinguished Professor of Law, University of California Irvine School of Law.

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