Don’t get all cocky, you 13 original colonies.
Yes, yes, 250 years, congratulations, enjoy the cake. But here on the West Coast, a whole continent away from your powdered periwigs and your Philly bell-ringing, 1776 was a banner year, too.
Unbeknownst to you — and truth be told, unbeknownst to the people here — the future of these United States, the modern nation, was being shaped in California, too.
Granted, it was only a seed, hardly even a seedling. In Spanish California, mission-building was on the 1776 checklist. A new San Gabriel mission was being built, five years after Franciscan missionaries had founded the original mission in a flood zone, which flooded.
In the San Francisco Bay, on June 29, 1776, the same day that the Continental Congress was taking a breather to pore over Thomas Jefferson’s eloquent and incendiary declaration, newcomers from Spain knelt in an arbor of rushes to celebrate the first mass of the future Mission Dolores. They’d soon start building their presidio fort a few miles away, the twin foundations of Spain’s God and empire.
That name — “dolores,” meaning sorrows — “seemed appropriate given what was to come,” San Francisco historian Alec Scott told me. For Native Americans like the Ohlone, who watched that first mass that turned out to be the founding of San Francisco, 1776 was the first of many increasingly bad years.
The Spanish, who had at first just flitted along the coast in their galleons, had begun marching inland and overland from Mexico with crosses and soldiers and soldiers’ families. That conversion and conquest crusade brought disease and defeat to native Californians, whose numbers and ways of life would be all but exterminated by the time the United States of America celebrated its first 100 years.
From that July day in 1776, it would be about 75 years — a human lifetime — before early Californians would put a constitution on paper, a document with some roots in Mexico’s constitutional rights and rules and traditions.
Both constitutions were a compilation of promises intended if not always delivered, but with elements arguably more enlightened on some matters than the early governing documents drawn up in the East by the sons of the Enlightenment — among them, slavery and women’s property rights.
Fast-forward through many decades: Spain’s Latin American empire, which had so brutally begun in the early 16th century, was breaking into independent nations by the 19th. Mexico won its independence in 1821. The long exploitation of Indigenous Americans, and the looming power of U.S. slave states on Mexico’s borders, made a ban on slavery both an ethical and a strategic imperative in Mexico’s new constitution.
Preserving slave ownership, along with resisting political overreach from Mexico City, were principal reasons that the Mexican state of Texas fought to break free of Mexico. Texas became a U.S. state in 1845 and seceded from the union to join the Confederacy at the start of the Civil War.
Father Hidalgo, the priest who raised the cry of independence in 1810, demanded that slave owners free the enslaved at once, “grant them the necessary freedom documents,” or risk the death penalty.
Admittedly, the loopholes and evasions of language meant that although slavery was illegal, indentured servitude and debt-bound slave wages actually left many Native Americans still ruthlessly exploited.
But however imperfect in practice, Mexico’s constitution explicitly banned slavery, while the original United States constitution, without ever using the word ”slave,” upheld slavery and enforced slave owners’ rights over persons “held to service or labor.”
Here’s where David Hayes-Bautista weighs in. He’s a professor of medicine and director of the Center for the Study of Latino Health and Culture at UCLA’s medical school. He’s also written books about early California, among them “El Cinco de Mayo” and “The Latino Big Bang in California.”
As he put it, did East Coast Americans ever think “a bunch of Mexicans on the Pacific Coast have anything to do with America? Yes, we did — a lot!”
He connects the dots between Spanish and Mexican laws and traditions that stood in marked contrast with U.S. laws and traditions, but which made their way into California’s first constitution, in 1849, and influence the state to this day.
When it was adopted, California’s Article I, Section 18 decreed: “Neither slavery, nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this State.” A year later, California entered the union as a free state, resetting the national debate on free versus slave states, eleven years before the Civil War.
California’s new Anglo power brokers wrangled over who would have the right to vote. Not Black people, and not Native Americans — who were, at that moment and for the last time, the most populous group in California. This, as you’ll read, was a matter for debate.
And not women. The California constitution didn’t use the word “woman,” only “wife.” Still, they were given rights that many Mexican and Spanish women enjoyed, but no woman under the original U.S. constitution had.
Here’s California Article XI, Section 14: “All property, both real and personal, of the wife, owned or claimed by marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as to that held in common with her husband. Laws shall also be passed providing for the registration of the wife’s separate property.”
This was radical stuff in 1776, when Abigail Adams, the redoubtable wife of John, the founding father and future president, was pleading with her husband to “remember the ladies.” It was still controversial in 1849, when only a few U.S. states were just beginning to catch up with California in married women’s property rights.
“That women have property rights independent of husbands is an old Iberian tradition,” Hayes-Bautista told me. “When a woman married under Iberian law, she didn’t lose anything — she kept her own property.”
A year after the 1849 constitution, the state legislature created the groundwork of today’s “community property” law by defining anything acquired during marriage as “common property.”
That “was an important contribution,” Hayes-Bautista said, and it was in striking contrast to the English law that original American laws had copied. “Coverture” essentially erased a married woman’s legal identity, including any right to her own property. As an 18th century English jurist wrote, “… the husband and wife are one person in law” — and that one was the husband.
The male-female suffrage distinction was easy, but in California, who, exactly, was a white male?
Both the 1789 U.S. Constitution and the 1849 California constitution extended the right to vote only to white men — but the definition of “white” included Mexican Californians who chose to become U.S. citizens.
In the United States, the savage arithmetic of the “one-drop rule” practice, codified in the early 20th century, decreed that anyone with ascertainable traces of Black African heritage — even to the hyperbolic single drop — was legally Black.
In Latin America, as Hayes-Bautista explained, after centuries of Indigenous and Spanish intermingling, racial and ethnic lines were fluid, with myriad, subtle gradations of color, lineage and heritage. An absolute definition of “white” was practicably impossible, and the white Anglos flooding into California in 1849 also knew better than to alienate the settled “Californio” population by disenfranchising it, even when most of those “Californios” of old Mexican families had Native American and sometimes Black family roots.
The debate around the early constitution was over whether “white” meant actual skin color, or ethnic origin, or family heritage. Pio Pico, the last governor of Mexican California, was — like many of the settlers who had founded the city of Los Angeles in 1781 — probably a man with Afro Mexican origins.
What was practiced in Spanish and Mexican America, says Hayes-Bautista, was a class distinction that he called “colorism.” It was a social and cultural observance, he noted, versus “racism,” where laws and regulations enforce race divisions and status.
“Latinos are what I call racially ambiguous,” he remarked, and continue to be right down to the present day, defying definition by pollsters, census-takers and others.
In his medical research, Hayes-Bautista has studied every census since the first one, in 1790. Race and ethnicity definitions were always changing, he said — sometimes based only on what the census taker concluded based on the appearance of who opened the household’s door to him.
“In the 1960 census, the census takers [alone] determined race — they didn’t ask,” said Hayes-Bautista. As an example, “if Obama’s mother opened the door” to the census taker, baby Obama would have been entered as white. “If his father opened the door — Black.”
In 1970, the father’s race was applied to children, and in 1980, the mother’s, he said. “So how scientific is this concept? It’s crazy … and they’re always trying to stuff ‘Latino’ into the race category,” as opposed to ethnicity.
And the census is still trying to figure out how to ask questions to sort out race, ethnicity and origins.
One more California legal and constitutional regulation — a very disputatious, valuable and complicated one — derived from Spanish and Mexican practices, very different from East Coast ones: water.
Part-time rivers and waterways, and the meager rainfall in Baja and in California, gave form to what are called riparian water rights. As the state’s Water Resources Control Board defines it, riparian rights let landowners use some of the water flowing past their property, but they can’t divert it from the stream or river to dam it up for future use — “use it or lose it.”
But the gold seekers, the ‘49ers, immediately set to digging ditches and canals to divert water, and so the new state soon allowed that practice, too. It was called “appropriative rights,” but was sometimes subject to earlier water use claims called “first in time, first in right” that went back to the days of pueblos. To this day, cities like L.A. retain water rights from those pueblo days.
In the 19th century, Californians fought over water rights with guns; today, they fight over them with lawsuits. Eastern Seaboard states often use an English-based version of riparian rights, but while there’s rarely enough water to satisfy all of California’s needs and demands, those other states have an abundance that hasn’t often put their water rules to the test. But climate change might soon have something to say about that.
The state’s 1849 constitution has been altered a lot over the years. Its requirement that California be officially bilingual, with its official proceedings recorded in English and Spanish, was removed 30 years later.
But its original progressive elements have not only lasted, but become the law of the entire land — from sea to shining sea. As Hayes-Bautista asks, which constitution “looks more like the America we have today?”