1849 California Constitutional Convention: A Question of “Race”

The 1849 Californian Constitutional Convention: A Question of “Race”

Logan Morales, Fall 2022

Following the conclusion of the Mexican – American War and the signing of the Treaty of Guadalupe Hidalgo in 1848, the United States of America gained a significant portion of Mexico’s northern territories. These territories, known as the Mexican Cession, consist of what are now the States of California, Nevada, and Utah. Portions of Colorado, New Mexico, Arizona, and Wyoming were also included in the acquisition. Despite being sparsely populated land, there were still thousands of Mexican citizens who suddenly found themselves on the other side of what used to be their northern and eastern border. Shortly after the Treaty of Guadalupe Hidalgo was signed, delegates from around the California territory met in 1849 to hold a Constitutional Convention which they hoped would pave the way for California’s admittance into the Union as a State. These delegates were made up of American settlers and native-born Californians, called Californios, who were of Mexican descent and spoke Spanish as their first and often only language. In this project I examine the 1849 Constitutional Convention in California and analyze how the delegates navigated and negotiated Mexican and American conceptions of citizenship and constitutional rights, specifically in relation to how the delegates traversed the relationship between race and suffrage.

Before the 1849 Californian Constitutional Convention can be discussed, the Treaty of Guadalupe Hidalgo must first be addressed. The reason for this is that the 1849 Convention had to operate under the framework of the Treaty of Guadalupe Hidalgo, and whatever Constitution the delegates planned on adopting could not conflict with the terms of the treaty. This is evident in the discussions had during the Constitutional Convention, in which the Treaty was referenced several times. A key issue among the delegates was interpretation and how the wording of the document could be applied or twisted to fit their agenda. Of course, the desires of the Californios and the Americans did not always line up. An example of a key passage that sparked much debate is Article VIII of the Treaty of Guadalupe Hidalgo: “Mexicans now established in territories previously belonging to Mexico…shall be free to continue where they now reside…retaining the property which they possess in the said territories.” [1] Article IX of the Treaty further reaffirms the rights of Mexican citizens who opt to become American citizens. [2]

This meant, in effect, that Mexicans who chose to stay in the newly ceded Mexican Cession territories could remain there and retain their property rights and live without fear of their property being taken from them. However, delegates to the Convention still debated the exact nature of this clause, as is applied to racial categories. The words “white” or “black” or “Indian” are not used in the Treaty of Guadalupe Hidalgo, except in reference to cross border raids by Native Tribes [3]. Therefore, the understandings of citizenship and personhood Americans were accustomed to at the time, in that whites were dominant, did not neatly apply. This was especially debated in reference to Native Tribes living in California, whom the delegates simply referred to as “Indians”. As a side note, this paper will do the same for contextual continuity. It was made clear by the Treaty of Guadalupe Hidalgo that Mexican citizens who remained in the United States became American citizens, complete with the same rights and privileges of any other American citizen. This included the limited right to vote that whites in the United States enjoyed at the time. However, this posed a problem for the delegates, who debated whether Indians were considered Mexican citizens under the Mexican Constitution, and if so the Treaty of Guadalupe Hidalgo would mandate they be considered American citizens with the right to vote. In a time when whites were the paramount race of America, the idea that non-whites would be considered equal in California under the provisions of the Treaty was difficult to reconcile and elicited a variety of opinions on the subject. Some of the delegates were in favor of all Mexicans, regardless of skin color or race, being granted the right to vote while others favored finding ways to apply more restrictive policies on the new population.

A powerful and wealthy Californio by the name of Pablo de la Guerra Y Noriega was an influential member of the Californio delegation to the 1849 Constitutional Convention. De la Guerra owned over 450,000 acres of land in California, giving him a significant amount of power in the negotiations. This power was not necessarily secure, however, and hinged on his ability to retain his holdings through various mechanisms provided by the Californian Constitution he was forming with the rest of the delegates. [4] This is also where the aforementioned issue of race came into play. In a conversation between De la Guerra and several other delegates of American origin, the question of who is counted as “white” came up. While of European Spanish origin himself [5] and theoretically considered “white”, De la Guerra pointed out that years living in the warm, sunny, and mild climate of California had turned his otherwise fair complexion, and the complexion of many other Californios, much darker than it otherwise would have been. [6] The idea that being white is a requirement to vote, or hold office, or to take advantage of the property rights of California was concerning to Californios because they were unsure whether it applied to the color of their skin, or to their racial background. [7]

Part of the reason for this confusion was because of the differences in how the Americans and Mexicans conceptualized race, and the language barrier between the two groups. An incredibly small number of Californio delegates spoke English with any proficiency, but even those who spoke English well chose to use interpreters when speaking. Once it became clear that the American delegates understood “white” to indicate racial attributes as opposed to the actual skin tone, this allayed some fears but prompted yet another issue: many Californios were of at least partial Indian ancestry.

Under Mexican law, as stated by De la Guerra, “No race of any kind is excluded from voting”. [8] For some delegates, like Edward Gilbert of San Francisco, this issue was made clear by the Treaty of Guadalupe Hidalgo and advocated for all people who were considered Mexican citizens to be granted the same privileges that white Americans had. For him, whites, blacks, Indians, and anyone in between who was a Mexican citizen should have full rights as a citizen in the new Californian state. Most other delegates, De la Guerra included, did not go this far. The delegates were primarily concerned with the status of Indians in California because so many Californios had Indian ancestry, but by large the delegates rejected the idea that people of African descent were to be treated equally. This debate was about more than racial discrimination or the belief that free white men should stand above all others. One Californio delegate in particular, Manuel Dominguez of Los Angeles, steadfastly refused to support legislation that would completely bar people of indigenous blood from voting. For the man of mixed Mexican and Indian ancestry, such provisions “would require Manuel Dominguez, a mestizo… to sign a Constitution that would disenfranchise him” [9]

The land belonging to California was vast, and comparatively little of it was populated by Americans or Californios despite being mostly owned by them. There were still regions where the only human presence were Indians who held no particular allegiance to anyone but themselves, and it is them that even the Californio delegates of partial Indian descent were concerned with. In the end, the American delegates knew that in order to maintain stability in the new Californian state they would need the support of the numerically inferior but powerful Californios, whether or not they had Indian ancestry. The debate surrounding the enfranchisement of people with Indian ancestry, while spirited at times, did not end with a climactic battle of philosophies or contested votes. In fact, it was quite the opposite: it ended primarily due to the desire to move on to other things. This was coupled with the recognition that Californio support was imperative to California’s admittance into the Union. A compromise was reached, simply stating that the California Constitution would give the state Legislature power to grant certain Indians and those of Indian descent the right to vote if the Legislature chose to do so. [10] It was understood that full-blooded Indians and Indian tribes would not benefit from this; it would only be applied to people with some Indian ancestry, like the Californios.

The 1849 Constitution outlines voting rights in Article II, which has six Sections. For the amount of debate that transpired over the issues of voting rights and the potential implications they might have on the newly formed State of California, it is quite short. Only Section 1 of Article II actually deals with voting rights, the rest of the Sections dictate policy towards electors, residency, and the method of voting which was to be conducted by ballot. [11] In summary, Article II Section 1 declares that any white male citizen over the age of 21, whether American citizens or former Mexican citizens, can vote in the State of California provided they resided in the State at least six months. [12] In regards to the enfranchisement of Indians in California, the aforementioned compromise in the previous paragraph covers that provision.

Many elements of the 1849 Californian Constitution did not last and were amended in the decades that followed, and the demographic makeup of the state changed drastically in the years that followed. Just thirty years later a new Constitutional Convention took place, replacing the 1849 Constitution with the 1879 Constitution. Like its predecessor the 1879 Constitution detailed suffrage in Article II, with most of the specifics outlines in Section 1. However there was a key difference: Indians are never mentioned. [13] The number of Indians in California had been significantly reduced through mass killings or internal deportations to Reservations. American settlers killed Indians for their land and for access to gold during the Gold Rush. They killed them for revenge for other Indian raids which may or may not have involved them, and they killed them because they hated them and they could: “The direct and deliberate killing of Indians in California between 1846 and 1873 was more lethal and sustained than anywhere else in the United States or its colonial antecedents”. [14] By the time the 1879 Constitution was written the Californios had lost all of their power, and the California Indians had mostly been exterminated. In the end, the 1849 Constitution offers a look into how the American system of white racial domination was challenged, and the 1879 Constitution illustrates how the system “corrected” itself.


[1] “Treaty of Guadalupe Hidalgo.” Article VIII. February 2, 1848. National Archives.

[2] “Treaty of Guadalupe Hidalgo.” Article IX. February 2, 1848. National Archives.

[3] Ibid.

[4] Hargis, Donald E. “Native Californians in the Constitutional Convention of 1849.” The Historical Society of Southern California Quarterly 36, no. 1 (1954): 3–13. https://doi.org/10.2307/41168450.

[5] Dorman, George. Profiles of the Signers of the 1849 California Constitution with Family Histories. Edited by Wayne Shepard. https://www.californiaancestors.org. Oakland, California: California Genealogical Society, 2020. https://www.californiaancestors.org/WordPress/wp-content/files/eBooks/Profiles_of_the_Signers_of_the_1849_California_Constitution.pdf.

[6] California. Constitutional Convention, and John Ross Browne. Report of the Debates in the Convention of California, on the Formation of the State Constitution, in September and October. Washington, D.C., Printed by J.T. Towers, 1850. https://www.loc.gov/item/10013983/.

[7] Ibid.

[8] Ibid.

[9] Parames, Jose-Daniel. “California’s ‘Liberal Moment’: The 1849 Constitution and the Rule of Law.” California Legal History 4 (2009): 477–530.

[10] 1849 California Constitution. Article II.

[11] Ibid.

[12] Ibid.

[13] 1879 California Constitution. Article II.

[14] Madley, Benjamin. An American Genocide: The United States and the California Indian Catastrophe, 1846-1873. Yale University Press, 2016.

Further Reading 

Bastian, Beverly E. “‘I Heartily Regret That I Ever Touched a Title in California’: Henry Wager Halleck, the Californios, and the Clash of Legal Cultures.” California History 72, no. 4 (1993): 310–23. https://doi.org/10.2307/25177378.

Burns, John F. “Taming the Elephant: An Introduction to California’s Statehood and Constitutional Era.” California History 81, no. 3/4 (2003): 1–26. https://doi.org/10.2307/25161698.

Hargis, Donald. “Pre-Convention Speaking, California: 1849.” Western Speech Communication Association 18, no. 3 (May 1954): 167–75.

Lothrop, Gloria Ricci. “Rancheras and the Land: Women and Property Rights in Hispanic California.” Southern California Quarterly 76, no. 1 (1994): 59–84. https://doi.org/10.2307/41171702.

Riddell, Citlali Lucia. “Californio Local Liberalisms: The Lasting Impact of Mexican Ideologies in California, 1848-1890 .” University of California, Los Angeles, 2020.

Shaler, Andrew. “Indigenous Peoples and the California Gold Rush: Labour, Violence and Contention in the Formation of a Settler Colonial State.” Postcolonial Studies 23, no. 1 (2020): 79–98. https://doi.org/10.1080/13688790.2020.1725221.

Worcester State University Fall 2022