I Have a Dream

August 22, 2017

The North was segregated after Brown outlawed segregation in 1954. It didn’t happen by private individual choices but by government decisions that blocked banks from lending to African-Americans in both the suburbs and inner cities. Those now well documented decisions created many of the inner cities’ problems and the struggle to make equality real. But who cares?

Who cares because all the proposals to fix a huge injustice, not in the distant years of slavery but now, mean paying to help “them.” It’s fine if someone else pays. But not us, not the wealthy, the middle class or the poor.

So are there answers society could adopt?

We nibble: the Fresh Air Fund, scholarships for the African-American elite, the people who overcame all the potholes and roadblocks in their way.

In 1938, years before Brown, the Supreme Court understood that the inescapable sin of segregation was the barrier to networking. Missouri was prepared to send African-Americans to any law school in neighboring states so that they would get what Missouri called an “equal” education, but not to Missouri schools. Presaging Brown, the Court said it wasn’t equal to deny African-Americans the chance to get to know future colleagues, adversaries, judges and legislators. As Brown would say 16 years later, segregation is inherently unequal.

There lies the real problem of race – any real solution involves us all. Would we put the resources into “their” schools that we put into “ours”? Would we share some classrooms? Would we allow willing parents to send their kids to our schools or would a modest program be too much for us or the racist majority on the court in Washington?

I think there will be success for African-Americans too. Fresh out of slavery, their ancestors created a system of higher education,  fine colleges and universities which survive and thrive. Then they started the climb toward the middle class familiar to many of us. Many African-Americans joined the ranks of civil servants in the federal government. Government service had been a route out of poverty for many of our ancestors. But beginning in 1913, after years of progress, President Wilson excluded African-Americans from all but menial federal jobs, pushing educated and successful African-Americans out of the federal bureaucracy.

That story was repeated after World War II, after Brown v. Board, when federal officials denied that African-Americans had any rights the capitalist system need honor and instead used the federal agencies they controlled to block African-Americans from getting loans to build businesses or join the march to the suburbs. It wasn’t anything African-Americans did, but that deliberate undermining of their efforts and successes laid the seeds of contemporary inner city problems.

There are many more chapters to the story of the ways that the financial and political rugs were pulled from under potentially successful African-Americans and their businesses. The road of our African-American brothers and sisters has been longer, harder, more unjust than the ancestors of most of the rest of us because America made it so.

I was there in front of the Lincoln Memorial when Dr. Martin Luther King shared his glorious dream. That dream of equality belongs to all of us. All of us depend on the crucial American realization that all mankind is created equal. So, like most Americans, I thrilled to King’s words. And I admire the principled courage and dedication of Charlottesville’s counter-protestors. Their presence was an indication of the progress America has made, and their struggle reflects the distance still to travel.  King’s dream, our dream, is still a dream.

— This commentary was broadcast on WAMC Northeast Report, August 22, 2017.


Polarizing America

January 31, 2017

I’d like to give my spleen a break for a week and talk about some of the dynamics that are polarizing  America, that neither side can solve because the problem is structural. Law has contributed with crucial changes regarding political parties, the media, the draft and residential segregation (which Brown did not prevent). I’d love to hear good suggestions for countering the polarizing effects of those legal changes.[i]

Primaries originally broke up state monopoly parties. We’ve long known that primary elections push candidates apart to appeal to their parties’ most committed voters. After 1968 the primary system became the exclusive method for nominating presidents, pushing the parties further apart.

In broadcasting, three networks controlled radio and television until Congress changed copyright rules, allowing cable television expansion to over a hundred channels, and niche broadcasting to separate audiences. The courts and Federal Communications Commission also killed the Fairness Doctrine, which required broadcasters to present a balanced presentation of controversial issues of public importance. Then Congress made it almost impossible to hold any internet company responsible for even the most outrageous falsehoods published on their systems. Those media law changes made it unnecessary to pay any attention to opposing views. Plus, instead of limiting damages for defamation, as Justice Marshall suggested, the Court gave media much more complete protection.

At the Federal Housing Administration, officials long refused to insure mortgages to African-Americans, regardless of income. That prevented African-Americans from joining the march to the suburbs, drove disinvestment in their existing neighborhoods, and pushed us apart.

The end of the draft has been huge. The military had drafted people without regard to wealth, class, or geography. President Teddy Roosevelt said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.”[2] And indeed the soldiers came home with lifelong buddies from all over America. Arguments about the Vietnam war ended the draft and led to the so-called volunteer army, which doesn’t reach the same cross-section of America. That changed our attitudes toward each other, and how polarized we’ve become.

There were good reasons for the changes to the nominating system, the media, and the draft but the combined price has been to polarize us. Polarization matters. It blocks our ability to listen to each other, even to care about each other. And if we can’t care, the very notion of public welfare, what’s good for all of us, seems like self-pleading.

The market can’t pick up the slack; it fails in many ways. Worse, for market ideologues, democracy, the major counterforce to the market, seems illegitimate. In other words, the stakes are huge – the legacy of our Revolution, our Constitution, and our collective welfare. Somehow, we have to break down polarization, and restore what used to bring us together or find substitutes – for public schools, military service, media that reached across aisles, and integrated housing and communities.

I doubt the cat can be put back in the bag, especially in this polarized environment, but I’d love to hear good suggestions.

— This commentary was broadcast on WAMC Northeast Report, January 31, 2017. For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[1] For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[2] Quoted in John Whiteclay Chambers, II, Conscripting for Colossus: The Progressive Era and the Origin of the Modern Military Draft in the United States in World War I, in The Military in America from the Colonial Era to the Present 302 (Free Press, Peter Karsten, ed., rev. ed. 1986).


Sotomayor’s dissent in Utah v. Strieff, Part II

September 6, 2016

Last time I read a portion of a dissent by Justice Sotomayor.[1] The Supreme Court of Utah had held that the Utah police had violated the defendant’s constitutional rights. The United States Supreme Court overruled that decision. In the portion of her opinion I read you last time, Justice Sotomayor explained what happens, not always, but what often happens when police stop people. And she explained what the Supreme Court authorizes police to do. Justice Sotomayor explained the ways that stops of people regardless of innocence of any crime, let alone any crime deserving jail time, can injure decent citizens. I didn’t have time to read you the last part of her opinion, so I will read it now:

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes,[2] many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner.[3] But it is no secret that people of color are disproportionate victims of this type of scrutiny.[4] For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.[5]

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.[6] They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

***

I dissent.

Justice Sotomayor was born in New York City to parents from Puerto Rico. After compiling stellar records at Princeton and Yale Law School, she became a prosecutor, eventually going into private practice. She spent six years as a federal judge, another decade as a federal appellate judge, and joined the Supreme Court in 2009. She writes from every angle of the criminal justice system, as an experienced prosecutor, attorney, member of the community, and judge. Her citations are to decisions of the United States Supreme Court. Before she left the Court, Justice O’Connor wrote a stinging dissent to one of the decisions Justice Sotomayor cites.[7] She was coming to understand the enormity of what the Court has authorized. But this is the Court we have. Is this the Court we want?

— This commentary was broadcast on WAMC Northeast Report, September 6, 2016.

[1] Utah v. Strieff, 136 S. Ct. 2056, 2069-71 (2016) (Sotomayor, J., dissenting).

[2] [Dept. of Justice, Civil Rights Div., Investigation of the Newark Police Department 8, 19, n. 15  [2069]  (2014), online at https://www.justice.gov/sites /default/files/crt/legacy/2014/07/22/newark_findings_7-22-14.pdf.] at 8,

[3] See M. Gottschalk, Caught 119-138 (2015).

[4] See M. Alexander, The New Jim Crow 95-136 (2010).

[5] See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

[6] See L. Guinier & G. Torres, The Miner’s Canary 274-283 (2002).

[7] Atwater v. Lago Vista, 532 U. S. 318, 360 (2001) (O’Connor, J., dissenting).


Sotomayor’s dissent in Utah v. Strieff, Part I

August 31, 2016

I want to read you a portion of a recent dissent by Justice Sonia Sotomayor in which she explains what I think many do not understand about what happens when police stop people on the street.[1] I will skip her citations but you can read them on the website. She wrote the last part of her dissent for herself alone. I think it is well worth your hearing that portion of her dissent in Justice Sotomayor’s own words:

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.

Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact.[2] That justification must provide specific reasons why the officer suspected you were breaking the law,[3] but it may factor in your ethnicity,[4] where you live,[5] what you were wearing,[6] and how you behaved.[7] The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous.[8]

The indignity of the stop is not limited to an officer telling you that you look like a criminal.[9] The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline.[10] Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.”[11] If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’”[12]

The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.”[13] At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.”[14] Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check.[15] And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.[16]

More next time.

— This commentary was broadcast on WAMC Northeast Report, August 30, 2016.

[1] Utah v. Strieff, 136 S. Ct. 2056, 2069-71 (2016) (Sotomayor, J., dissenting).

[2] Whren v. United States, 517 U. S. 806, 813 (1996).

[3] Terry v. Ohio, 392 U. S. 1, at 21 (1968).

[4] United States v. Brignoni-Ponce, 422 U. S. 873, 886-887 (1975).

[5] Adams v. Williams, 407 U. S. 143, 147 (1972).

[6] United States v. Sokolow, 490 U. S. 1, 4-5 (1989).

[7] Illinois v. Wardlow, 528 U. S. 119, 124-125 (2000).

[8] Devenpeck v. Alford,  [2070]  543 U. S. 146, 154-155 (2004); Heien v. North Carolina, 574 U.S. ___,  (2014).

[9] See C. Epp et al., Pulled Over, at 5 (2014).

[10] See Florida v. Bostick, 501 U. S. 429, 438 (1991).

[11] Terry, 392 U. S., at 17.

[12] Id., at 17, n. 13.

[13] Atwater v. Lago Vista, 532 U. S. 318, 323-324 (2001).

[14] Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___,  182 L. Ed. 2d 566, 573 (2012); Maryland v. King, 569 U. S. ___, 186 L. Ed. 2d 1, 30 (2013).

[15] Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33-51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341-1357 (2016).

[16] A. Goffman, On the Run 196 (2014).


Silencing: Pensions, Kurds and Black Lives Matter

August 16, 2016

We watched a Black Lives Matter march pass in front of our house recently. It reminded me of something that happened in 1972, when NBC aired a documentary called “Pensions: The Broken Promise.” It described many instances in which loopholes in pension plans left people without the pensions they thought they had. The narrator called the “situation” “deplorable.” The documentary won many awards and played a part in developing public support for pension legislation which now goes under the acronym ERISA.

But a group called Accuracy in Media sued pursuant to the now defunct “fairness doctrine,” claiming that the documentary presented a “distorted picture of the private pension system” because almost nothing was presented on the positive side.[1] They wanted to censor NBC for not airing another program about all the good pensions. The U.S. Court of Appeals for the D.C. Circuit ruled in favor of NBC. The instances detailed in the documentary really happened; they were undisputed. The complaint asked NBC to air a documentary on a different issue – the overall soundness of pensions in America. The Court understood that requiring NBC to discuss the overall issue would dilute its attack on the abuses that had been allowed and had left many workers without pensions. It also might mean that broadcasters in the future would pull their punches, and avoid controversial exposes, no matter how valuable. Those consequences would neuter, rather than contribute, to public discussion of controversial issues of public importance.[2]

Let me turn to another place where the same tactic is being used. Turkey has not allowed Kurdish grievances to be raised. The government says that there are no Kurds, or no loyal Kurds; there are only Turks. So they can talk about grievances so long as they have nothing to do with Kurds. Having silenced Kurds, they then continue to fight a shooting war against the Kurds.

There have been calls for the same method of silencing in an American context today. Various groups attack Black Lives Matter because they say, accurately, that all lives matter. But the meaning of their attack is to neuter the Black Lives Matter campaign. Of course all lives matter, but African-Americans have had distinctive problems. To require Black Lives Matter to discuss the whole issue of abusive treatment of everyone would dilute their campaign, their point, and make it harder to focus on the difference in the way people are treated, the reason why Black parents have to have “the conversation” with their children about what to do if the police stop them, a conversation white parents don’t need to have. Objections to the slogan, that Black Lives Matter, is an effort to keep the veil over a serious injustice in our society.

Of course all lives matter. But most of us understand the phrase “Black Lives Matter” as meaning that Black lives matter too. That’s standard English, both because meaning in our language comes from context and because a positive statement does not imply the nonexistence of everything else. There is no negative implication that other lives don’t matter; there is only emphasis – Black lives, the lives of Black people, are important, they matter, they have been ignored, and that has to stop. Yes, Black lives do matter.

— This commentary was broadcast on WAMC Northeast Report, August 16, 2016.

[1] In Re Complaint by Accuracy In Media, Inc. Concerning Fairness Doctrine Re NBC, 40 F.C.C.2d 958 (F.C.C. 1973).

[2] NBC v. FCC, 516 F.2d 1101 (1974). Note that the 1974 decision has been vacated on other grounds and is no longer available on common online sources but is available in the hard-copy reporters.


Proposed Amendments to Overcome Citizens United

July 19, 2016

This is the third in a series on Money in Politics. Last time we discussed the difficulty of getting the Court to overrule Citizens United. Because of that, several constitutional amendments have been proposed as joint resolutions and introduced in Congress in order to undo Citizens United and overrule the idea that a corporation is a legal person. After studying them, however, it became clear they have been so sloppily drafted that no one could tell you what they would do.

None that I’ve seen addresses the associations we join. Political, civil liberties, civil rights, and environmental organizations, and professional associations, all take stands on candidates or political issues. The ACLU went to court years ago to protect its ability to take out an ad over the impeachment of President Nixon.[1]

All except the smallest are incorporated and are protected by the right of association. The First Amendment protects speech, press, assembly and petition. In combination, that’s what our associations do to influence public attitudes about major issues. They incorporate to outlast their founders, use the courts, open bank accounts, organize membership and leadership, seek tax-exempt status and protect members from liability for any mistakes the organizations make.

Those associations matter. The lasting impact that people like Rosa Parks and Martin Luther King had on the Civil Rights Movement depended on the organizations that did the advance work, and drove home the meaning of what they and other great leaders of the Movement did. That’s true of most successful political movements. Yet the proposed Amendments stop after denying that corporations have constitutional rights and authorizing legislatures to regulate them.

A literalist could read the Amendments as superseding and repealing all previous protections for the organizations we rely on to reform politics, the environment, civil rights and just about everything we care about. Nothing in the proposals protects them.

Sometimes courts hang on to interpretations of older text and neuter newer language, as the Supreme Court has with language in the amendments passed in the aftermath of the Civil War. In the absence of any language about associations, it is impossible to say what the courts would do to the proposals regarding associations.

One proposal denies that it limits the people’s rights, but it is attached to text which limits what the Court defines as part of the people’s First Amendment rights. The meaning of that exception is mysterious, just authorizing courts to figure it out.

Only two amendments mention a free press. They merely say they “shall [not] be construed to alter the freedom of the press.” That’s nice but the exceptions swallow the proposals because much of political campaigns is in or can be done by the press. Whoever controls the distinction controls the result, whether authorities can squelch the press or the press becomes the next form of improper power.

Corporations often set up subsidiaries for otherwise regulated functions, such as associations or media companies, like what Murdock did with Fox. Some media companies are owned by conglomerates. Many associations set up separate organizations for tax purposes. The NAACP set up Thurgood Marshall’s organization around 1940 to separate its legal work from other organizational work. Lawyers fashion ways to live with rules. So what would a press exception do?

Nor should media companies and political associations have a monopoly on political speech. The law should be neutral and should not protect the speech of some while shackling the speech of others.

Whatever you think of the Roberts Court, and I’m no fan, these are serious issues and no proposal addresses them. Instead they provide feel good language covering sloppy and dangerous clauses.

— This commentary was broadcast on WAMC Northeast Report, July 19, 2016.

[1] Amer. Civil Liberties Union, Inc. v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973).


Iftar

June 28, 2016

This is Ramadan, the Muslim holy month of fasting. We were invited to Albany’s City Hall for an Iftar, the evening feast after the sun-up to sun-down fast. Meetings aren’t polls and people put their best feet forward at public events. But I also know these folks. We greeted friends: a physicist, President of a Mosque on Central Avenue; an engineer who escaped repression in Iran, and ran a radio program to celebrate and protect American freedoms. We greeted a doctor whose daughter was my student and valedictorian at Albany Law, now working for the NY Attorney General. There were scientists, programmers, medical professionals, Sunni and Shi’a, Muslim, Protestant and Catholic clerics and public officials.

One woman described her six year old daughter lying awake at night, terrified, crying and asking where they’ll go if they are kicked out of this country – mother and daughter were born in the U.S., raised in this area, and have no other homeland. Her mother spoke with the girl’s first grade teacher, and the two women shared their tears – this wasn’t schoolyard bullying; the girl had been terrified by what she was hearing over the air.

Speaker after speaker rose to describe how lucky they were to reach America, how grateful they felt for the welcome they received and the chance to rebuild their lives. They celebrated America’s protection for people of all faiths, from all parts of the world, and their own determination to protect that freedom for everyone. Muslim clerics speaking to fellow Muslims, rejoiced in what America offered and encouraged them to do what they could to protect those values for all. Others spoke about the need to remember the blessings of America in times which are quite worrisome for Muslim men, women and children, and to do their best to protect America and its liberties.

Some had made the greatest sacrifice. The Muslim woman I described a moment ago explained that an older brother, also Muslim, had enlisted in the U.S. Army right after 9/11 to defend this country – serving our country which was also his, her brother was killed in action in Afghanistan. To her and to all of us he was one of the heroes of this conflict. Stereotypes must not obscure the contributions of real and good people. It was important to her, and should be important to us, to recognize the sacrifice that her brother and other Muslims have made to protect American freedoms.

Sitting there I realized I was watching the way the best of American values are renewed, revived and passed on as they have been for centuries. Sometimes we Americans show surprisingly little confidence in the strength of our ideals to flower in the hearts of immigrants. That, after all, is why they came.

Mayor Sheehan delivered a warm welcome and later pointed out to some of us that Muslims had been part of Albany since the city’s Dutch beginnings. In fact many of America’s founders made it clear that Muslims, along with Jews, deists, Protestants and Catholics were all included in the Constitution’s protections, and some took steps to make sure that Muslims and immigrants from all continents would feel welcome to come to America.

Every community has bad apples. But the bad apples in non-Muslim communities have been responsible for the vast majority of murder, arson and domestic terrorism in America. Stereotyping hasn’t protected us. Reaching out and welcoming these new Americans is much healthier.

Like many of us, immigrants and their children try to preserve the good parts of their heritage. But they came from war zones. Many risked their lives to escape. They have the strongest reasons to love and celebrate America, because they know what was in store for them or their parents in the lands of their ancestors. They’re trying hard to be helpful and constructive. It’s important that the rest of us recognize that.

— This commentary was broadcast on WAMC Northeast Report, June 28, 2016.


Professor Paul Murray’s class on the civil rights movement

May 9, 2016

Paul Murray went South as part of the Civil Rights Movement. For many years he has taught a course on the Civil Rights Movement at Sienna College and taken high school and college students on trips to see places made famous by the struggle for freedom and equality.

Professor Murray, Paul to many of us, is retiring soon. This year’s class on the Civil Rights Movement has been his last. For the last session, he held a discussion of whether the Civil Rights Movement had succeeded or failed. Just three students thought it had been a success. Paul asked why. Students brought up discriminatory policing, the impact of putting so many Blacks in prison for behavior that would not get whites prosecuted let alone incarcerated, and the extent to which Blacks still go to schools segregated by zoning and other boundaries, understaffed with fellow students who mirror their own economic backgrounds and skin color.

Gradually Paul got the students to drill deeper –hadn’t some things changed for the better, where and for whom? Elementary schools changed less than colleges and universities. Housing patterns are more segregated after the emergence of white suburbs and wealth is still very skewed. For one student, her very existence depended on the Civil Rights Movement when the Supreme Court held states could no longer ban intermarriage of whites and Blacks.

My wife commented that the world is different from what it was when she grew up in the South or even when we moved into Albany in 1979. African-Americans do many things they couldn’t then. Out shopping and dining years ago we’d just see African-Americans working as busboys and janitors. Now we see them as waiters, hosts, and salespeople. We work alongside African-American professionals, lawyers, businessmen and faculty. And when we came to Albany the city was still geographically and politically divided by faith and national origin in a way that has long since passed.

Another woman commented that being white is actually a step forward for many whites in the room, who grew up knowing that our own groups were discriminated against. Somehow all those ethnic and religious differences no longer separated good, helpful, valuable people from anyone else, and we’re all much richer for it.

The Civil Rights Movement made a difference to all of us, Black and white. A law professor years ago wrote a book about the African-American contribution to the First Amendment.[1] Much of the improvement in Americans’ sense of brotherhood was also forged in the Civil Rights Movement.

But don’t count on it. We had an integrated federal bureaucracy for half a century after the Civil War until President Woodrow Wilson drove Blacks out of the civil service. We had integrated restaurants and theaters in the South before the Klan terrorized southern Blacks, taking advantage of Supreme Court decisions that what happens in the South is no business of Congress and federal prosecutors.[2] The Supreme Court in our own time has called a halt to integration, repeating its 19th century backsliding. The schools and criminal justice system are still failing Blacks.

I don’t know how long it will take. Visitors to Paul’s class had spent their lives working for justice and we all have to keep working for it. I want to believe that our work and social relationships will gradually drive racial justice in the same way they drove the integration of ethnic groups and the gay rights movement. It’s been harder and slower regarding race but we will get there, thanks to people like Professor Murray.

— This commentary was broadcast on WAMC Northeast Report, May 3, 2016.

[1] Harry Kalven, The Negro and the First amendment (Chicago: Univ. Chicago Press, 1966).

[2] C. Vann Woodward, The strange career of Jim Crow (New York: Oxford University Press, Commemorative ed., c2002) (1955).


Why Neither Party Can Back Down on Garland

April 12, 2016

Why is blocking the Garland nomination to the Supreme Court so important to them that most Republicans won’t even meet with him let alone agree to hold a vote? Many probably think it is about gay rights and abortion. But there is much more at stake for both parties.

After the Civil War, a very different Republican Party was anxious to secure voting rights for African-Americans. They explicitly addressed the voting rights of the former slaves in both the Fourteenth and Fifteenth Amendments and addressed it by implication in several other clauses as well. Those Republicans, committed to freedom and equality, understood that if the states of the former Confederacy could exclude African-Americans from voting, the former secessionists could retake southern government. Even more important, southern control of the House of Representatives would be strengthened, because the former slaves would count as full and equal human beings in the census and therefore in the apportionment of seats in the House. If that greater southern representation could be controlled by the white secessionists without Black votes to contend with, the former secessionists would control Congress.

Republicans have now switched positions. They still want to control Congress by controlling who can vote, but now by excluding everyone except white voters and undercounting everyone except Republicans. The Court has given them the power to do that. First, the Court chose George Bush for President, stopping the count of the actual votes in Florida. It refused to subject gerrymandering to any legal standard, even though there is now a very precise formula defining the extent of gerrymandering. It has taken the lid off every measure that descendants of the former Confederacy can impose to prevent African-Americans from voting, opening the polls only when it is difficult for them to get there, moving polling places to make them harder to reach, and requiring documents for registration that are costly in both time and money to obtain. That’s the dictator’s game where the officials choose the voters instead of the voters choosing the officials. It shreds democracy. It seems it is all the Republicans have left. And if choosing their voters turns out to be insufficient, the Court has unleashed the flood of corporate treasuries on politics and undercut labor’s ability to survive as a counterweight.

Choosing their voters, and controlling political money to favor Republicans are their biggest motives for wanting to control the Court – it protects their seats and their control of states and Congress. But there are other motives. The Court has shredded the protections of ordinary citizens in product liability, fraud and breach of contract cases. It has shredded the responsibility of Republicans’ corporate friends in antitrust liability and responsibility for securities fraud. The Court has become the major enabler of corruption, a giant kickback to friends of Republicans.

If one adds Republican preference for the conservative justices’ attack on abortion and gay rights, and their defense of school segregation, the Court has defined virtually the entire Republican agenda, its social agenda, its attempt to subordinate democracy to their dominance, and its cozy relationship with corporate America. It gives the rest of us very strong reasons to stop them and to get the Court back in support of democratic government, especially taking back the Court’s blessing for legally converting a vocal minority into national rulers. It’s time to stop them in the name of democracy.

— This commentary was broadcast on WAMC Northeast Report, April 12, 2016.

 

World-Wide Radiance of the American Melting Pot

February 24, 2015

In this world the grossest of inhumanity is euphemistically described as ethnic cleansing. The mutli-directional genocide of the old Yugoslavia has become routine. Boko Haram takes aim at education and at religious difference in Africa, targeting connections with America and the west. The Islamic State and al-Qaeda in the Middle East, with tentacles into much of the Muslim world, target whoever doesn’t belong and subscribe to their version of Islam or dare question their authority, They have targeted America, England, Spain, France Norway and counting. It is terrifying how quickly decent peace-loving communities have been dismembered and destroyed.

The past is prologue, but can’t be undone. The question is what do we do now. This is partly an ideological struggle because terrorists depend on recruits. How can we handle such a high-stakes ideological struggle? One aspect of that is at home.

Urging the U.S. Supreme Court to end segregation in Brown v. Board of Education in 1954 both the Democratic Truman Administration and the Republican Eisenhower Administration explained to the Court that our respect for people of all races, faiths and national origins were central to American worldwide success, especially in the fight against Communism.

Our melting pot and mutual concern and respect define the best of America. Our unwillingness to give in to bigots and bigotry, racists and racism, our willingness to see, confront and deal with bigotry and racism, our determination to stop it, make our strongest appeal. It is our tolerance, our neighborliness, our welcome to all from everywhere that makes us the shining city on a hill that our Founders hoped we would be. It is not our bloodlines but our coming together to make ourselves and welcome each other as Americans that makes us so. That e pluribus unum is what the world admires. They want our neighborliness; they crave the American idealism that gives anyone and everyone a chance to make a decent living and a decent life. They crave the welcome that glows from our melting pot.

People dream of America in corners of the world where they are crushed as if they are worthless except for the masters’ business, worthless unless they are of the masters’ bloodlines, worthless unless they have something to offer, at least a bribe. We need to keep the dream of the American melting pot alive both for their sakes and for ours.

Our American melting pot is more important than ever to the world we inhabit. But make no mistake it is crucial here at home. If the hatreds that once fanned the Old World and now fan the so-called Third World land on our shores, none of us are safe. We were all melted in that pot and we all live or die together. There is no safety in a cauldron. We have to sustain the values of our shared tolerant American culture.  For all our sakes. We are all beneficiaries.

I pointed out last week that the American melting pot, one of our most fundamental of institutions, was the result of very deliberate decisions to educate us all together, without regard to wealth, faith, gender, national origin or spoken language, and then, finally, without regard to race. And yet, the Court that once announced Brown v. Board of Education is not helping to preserve that centuries-old melting pot. Instead it is making it easier, in some respects even forcing us to re-segregate ourselves by race, religion and wealth.[1] By doing that, the Court is plunging a dagger into the heart of America.

— This commentary was broadcast on WAMC Northeast Report, February 24, 2015.

[1] See, e.g., Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007); Zelman v. Simmons-Harris, 536 U.S. 639 (2002); and see Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press 2010); Erica Frankenberg, Chungmei Lee and Gary Orfield, “A Multiracial Society with Segregated Schools: Are We Losing the Dream?”  The Civil Rights Project Harvard Univ. (Jan. 2003) available at http://www.civilrightsproject.harvard.edu/research/reseg03/AreWeLosingtheDream.pdf (June 22, 2007).


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