How American law keeps forgetting the Spanish half of the map—and how to fix it
By a regulated optimist who grades in pencil, votes with both hands, and still believes maps should tell the truth.
I. The method that misplaces a continent
In recent years, the Supreme Court has asked judges to test certain rights and regulations against "history and tradition." The words feel neutral, even comforting—like walking the family farm before making a will. But methods make worlds. In New York State Rifle & Pistol Association v. Bruen (2022), the Court framed its inquiry as an Anglo-American tradition and discounted contradictory practices in the territories, calling them "transitory." The upshot is a jurisprudence that privileges a particular archive—English, Protestant, Atlantic—while treating the equally American Spanish and Mexican legal inheritances as background noise.
That is an error of method and of map. The United States is not a monoculture accreted from London; it is a bilingual legal civilization assembled from London and Madrid/Mexico City—ratified on paper in 1848 with the Treaty of Guadalupe Hidalgo, and practiced in water ditches, land ledgers, and parish minutes ever since.
If "history and tradition" are to mean anything more than selective memory, they must include the Spanish rooms of the Republic.
II. The treaty that made us bilingual (in fact if not in court)
The Treaty of Guadalupe Hidalgo ended the U.S.–Mexico War and transferred a continental swath—today's California, Nevada, Utah, New Mexico, most of Arizona and Colorado, and parts of Kansas, Oklahoma, and Wyoming. The National Archives' summary is blunt about the scale. Yet the treaty was not just a real-estate deed; it was a promise of continuity: property and civil rights of Mexican citizens in the ceded territories would be "inviolably respected," and those residents could become U.S. citizens. Whether the United States kept that promise is a century-long argument; that the promise exists is not.
You cannot read that instrument and still maintain—straight-faced—that only Anglo traditions count as American for constitutional purposes.
III. How the land moved (and why it still matters)
The post-war Congress created institutions to translate Spanish/Mexican titles into U.S. law. Sometimes that translation worked; often it did not. In California, the Supreme Court announced in Botiller v. Dominguez (1889) that no title dependent on a Spanish or Mexican grant had validity unless presented to and confirmed by the federal land board within a statutory window—a rule that voided some long-held titles when families failed to surf new paperwork. Read the opinion today and you can hear the gears of dispossession click.
Across the Southwest, Congress then created a special tribunal—the Court of Private Land Claims (1891–1904). In thirteen years it adjudicated >35 million acres, with appeals straight to the U.S. Supreme Court. Even after it closed, fights persisted for decades. The Federal Judicial Center's history is a civil-servant's chronicle of how law rearranges ground.
These are not curiosities. They are the scaffolding of property, water, and municipal governance for tens of millions of Americans. A doctrine that filters "tradition" through only Blackstone and Boston will misread half the ledgers of the continental West and Gulf.
IV. The ditch that proves a constitution
If you want to see a living Spanish-American institution still governing people's daily rights and duties, go stand beside an acequia in New Mexico in April. The ditch is not a postcard; it is a corporation in law, with a mayordomo who allocates turns by beneficial use and a membership that sues, votes, and cleans as a civic rite. New Mexico statutes still speak this grammar plainly: acequias are bodies corporate; their officers distribute water according to long-standing custom and state law.
"History and tradition," if honest, would treat the acequia as decisively American—no less than a New England town meeting—because it is exactly that: a local constitution with shovels.
V. Language as infrastructure, not ornament
Our "unknown hemisphere" is not just land; it is language. When public institutions pretend that English alone is "neutral," they smuggle a hierarchy into service delivery. Federal law—quietly, pragmatically—has said otherwise for half a century. In Lau v. Nichols (1974), a unanimous Court held that a school district's failure to provide meaningful language assistance to non-English-speaking students violated Title VI. The decision did not constitutionalize bilingual education; it did something more durable: it made comprehensibility a civil-rights baseline.
Congress then recognized a similar truth about voting. The 1975 amendments to the Voting Rights Act added Section 203, requiring certain jurisdictions to provide bilingual ballots and election materials where language-minority citizens would otherwise be excluded. The Justice Department explains it without romance: this is how a multilingual demos becomes a single electorate. The Census Bureau publishes who's covered—because rights need lists, not sermons.
"History and tradition" that forgets Lau and Section 203 is not history; it is nostalgia with a robe.
VI. How a method narrows a nation
Return to Bruen for a moment—not for its bottom line on guns, but for its method. The opinion reads the Second Amendment through an Anglo-American history of public carry and then discounts territorial regimes as too brief to count. Note the sleight of hand: the United States acquires vast Spanish-Mexican jurisdictions as territories, then doctrine later treats those territories' practices as legally weightless, precisely because they were territories. This is not neutral; it is self-erasing.
A similar narrowing happens when courts demand a "founding era" pedigree for regulations or rights but treat 1848 as an afterthought. For the Southwest and Florida, 1848 (and 1821) are founding moments every bit as constitutive as 1789 or 1868. The legal culture of acequias, land grants, and bilingual municipal life is not a hobby; it is tradition in any honest sense.
VII. The stakes you can touch
Methods sound abstract until you feel them in your hands:
Land & Water. When disputes over easements, riparian access, or communal rights arise, courts that only trust Anglo treatises will undervalue Spanish/Mexican concepts (community ditches; neighborhood governance) that state statutes already enshrine. New Mexico's code says acequias are corporate persons with enumerated powers; that ought to matter when federal doctrines go fishing for "tradition."
Guns & Public Space. Territorial law is a poor cousin in modern historical tests. But in places that were Spanish/Mexican territories, the regulation of weapons carried meaning in urbanized plazas and mission towns quite different from frontier myth. If territorial practices are always "transitory," the archive is pre-emptively biased.
Ballots & Schools. If bilingual ballots and language-access rights are treated as "recent" policy rather than as the continuation of a long American habit of Spanish civic life, they become easier to trim and harder to defend as tradition. Lau and Section 203 are not novelties; they are a mid-course correction back to who we already were.
VIII. A better way to do "history and tradition" (five rules)
1) The Parity Rule
When doctrinal tests ask for "history," courts should presume parity between Anglo and Spanish/Mexican sources in jurisdictions that were part of New Spain or Mexico. Territorial law counts, especially where it reflected pre-existing civil institutions (acequias, cabildos, land grants).
2) The 1848 Baseline
In the Southwest, treat 1848 (Guadalupe Hidalgo) as a founding moment for rights-tradition analysis. If 1791 and 1868 matter nationwide, so should the legal settlement that brought a third of the country into being.
3) The Treaty Canon
When reading statutes or constitutional claims that intersect with property and local institutions in the Mexican Cession, courts should favor constructions consistent with the treaty's protection of property and civil rights. This is simply textualism with all the text.
4) Living Custom, Not Museum Pieces
Where state law still recognizes Spanish-derived institutions, give decisive weight to that living practice. An acequia's bylaws and elections are not anthropology; they are law.
5) Archive Integration
Require government litigants to brief Spanish/Mexican legal sources (translated where necessary) when they rely on "history and tradition" in affected regions. Historians have already done the work; doctrine should stop pretending those shelves are optional. For language-rights cases, brief Lau and Section 203 not as policy preferences but as settled civil-rights infrastructure.
IX. The classroom, the clerkship, the city hall
You do not need to sit on a bench to repair the method.
Law schools should pair Blackstone with Las Siete Partidas in property and remedies courses where the jurisdiction's history warrants it, and assign Treaty of Guadalupe Hidalgo alongside the U.S. Constitution in legal history modules. Students heading to New Mexico water practice should read the statutes that still speak Spanish by habit if not by tongue.
Judicial education should include short primers on land-grant adjudication and the Court of Private Land Claims, because today's title fights often carry those bones.
City/County counsel should treat language access as procurement: a deliverable with metrics, grounded in Lau and Section 203. That's not kindness; that's compliance and legitimacy.
X. Three scenes (because policy is a room, not a headline)
San Luis Valley, May. The mayordomo reads the roster while snowmelt sparkles like broken glass. A teenager translates the safety briefing into Spanish without being asked. This is not nostalgia; it is governance: a corporation in statute, a covenant in practice.
County courthouse, Arizona. A title dispute rises from an 1840s grant never presented to the federal board in time. The clerk pulls Botiller v. Dominguez and sighs at how a deadline turned a family history into air. The judge wishes someone had taught this in first-year property.
School board, California. Budget night. The superintendent proposes trimming bilingual aides. A parent quotes Lau, then holds up a sample Section 203 ballot from a neighboring county. The board quietly finds money. Tradition, it turns out, is also a line item.
XI. The counterargument, answered fairly
A principled originalist will say: We do not ignore Spanish sources; we just demand continuity with the Constitution as adopted and amended. Fair. But the Constitution after 1848 sat atop a new people and a new legal ecology. If "history and tradition" are the test, then ours—not just England's—must populate the record. To exclude Spanish/Mexican practices because they were "territorial" is to erase precisely those regions the United States chose to adopt. That is not fidelity; it is foreshortening.
XII. A brief owner's manual for the next brief
If you are a lawyer writing one of these cases next term, steal this checklist:
- Treaty hook: Cite the National Archives' text/summary of Guadalupe Hidalgo and explain how your claim fits its property/civil-rights guarantees.
- Title history: If land at issue traces to a Spanish/Mexican grant, summarize Botiller and the Court of Private Land Claims and why their legacy counsels caution before declaring traditions "Anglo-only."
- Living law: If water or commons are involved, attach the New Mexico acequia statutes as exemplars of current Spanish-derived governance.
- Civic language: In voting/education cases, anchor requests in Lau and Section 203 as settled federal baselines—not extras.
- Method point: Quote Bruen's "Anglo-American" formulation and explain why an Americas-wide archive better fits the Constitution's actual people and places in your jurisdiction.
XIII. Epilogue: the meridian and the mirror
Borges, our patron saint of difficult libraries, reminds us that maps betray their makers. A method that asks only the English shelves to speak will draw a nation half-lit, with empty rooms where people still live. Vonnegut would shrug and say: "So it goes—unless we fix it." And the professor in me, regulated and optimistic, will offer the dullest, bravest repair: cite better. Bring the Spanish rooms into the record until the method has no choice but to see the house entire.
At solar noon, the shadow vanishes for a minute and things stand as themselves. In law, that minute is called clarity. We will earn it when "history and tradition" means all of ours.
References (validated)
- Treaty of Guadalupe Hidalgo — National Archives "Milestone Documents" overview (cession, rights; signed Feb. 2, 1848)
- Botiller v. Dominguez, 130 U.S. 238 (1889) — California titles dependent on Spanish/Mexican grants invalid unless timely presented to the federal board; Justia text and summary
- Court of Private Land Claims (1891–1904) — Federal Judicial Center history (35+ million acres adjudicated; appeals to the Supreme Court)
- New Mexico Acequia Statutes — Acequias as bodies corporate (NMSA §73-2-11); mayordomo distribution by beneficial use (NMSA §73-2-21)
- Lau v. Nichols, 414 U.S. 563 (1974) — Title VI requires meaningful language access in public schools; Justia summary
- Voting Rights Act §203 — DOJ Civil Rights Division explainer (language-minority provisions); U.S. Census determination files for covered jurisdictions
- Bruen opinion (2022) — Supreme Court slip opinion (emphasis on "Anglo-American" historical tradition; territorial practice discounted)
- Rosina Lozano, An American Language — scholarly overview of Spanish as a civic language in the U.S. (JSTOR landing page)
This is the seventh in the Sol Meridian series exploring the hidden continuities that shape American public life. A legal analysis of how constitutional interpretation can better reflect America's bilingual legal heritage.