Alabama Legislative Black Caucus v. Alabama

March 31, 2015

In Alabama Legislative Black Caucus v. Alabama, decided a week ago on March 25, 2015, the Supreme Court reversed and sent back the lower court decision. The federal district court had thrown out a challenge to Alabama’s 2012 redistricting. That court held that the redistricting was not a racial gerrymander. The Supreme Court said the lower court used the wrong standard.

It’s important to understand what a decision like that does. The Supreme Court did not decide whether the redistricting violated the Constitution or not. It did not decide whether Alabama or the Black Caucus should win. It sent the case back to Alabama with instructions on how to figure out who should win.

The redistricting was accomplished by Alabama statute signed May 31, 2012, before the 2012 election. Plaintiffs filed a lawsuit later that year. The Court held a trial in mid-2013 and reached a decision throwing out the challenges in December of 2013. In 2014 the Supreme Court decided to hear the case. That Court now sends it back for more legal work.

This case was unusual for how quickly the case resulted in an opinion of the U.S. Supreme Court. Even so, after three years of legal proceedings the case is hardly over and could still take years before a resolution.

At the beginning of the proceedings, before any decision in the case, Alabama sought pre-clearance from Attorney General Eric Holder, under the portion of the Voting Rights Act which required Alabama to get the approval of the U.S. Attorney General for the electoral changes. That was called preclearance. In this case Attorney General Holder decided not to object to the districting. Only after Holder pre-cleared the statute did the judicial process get moving. But, while the case was in the lower court, the U.S. Supreme Court decided the pre-clearance provision of the Voting Rights Act was unconstitutional.[1]

Regardless of whether Alabama and Holder or the challengers had the better argument in this case, Holder pre-cleared the districting quickly but it took approximately three years for the courts to reach an inconclusive decision along the way toward ultimately deciding whether the districting is OK. The difference of course is several state and national elections. So, although it didn’t matter in this case, the time difference illustrates that one important result of the U.S. Supreme Court decision in 2013 that the pre-clearance provisions are unconstitutional, is that challengers may have to wait much longer for justice.

Secondly, this 2015 decision was written by Justice Breyer. He wrote for five members of the Court, joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan. Committees often make poor writers. In this case, although Kennedy merely signed Breyer’s opinion, Breyer had to write an opinion to satisfy Justice Kennedy and consistent with Kennedy’s prior opinions. The result is a legal analysis that is hard to pin down and could be used creatively by either the majority or the dissenters in future cases. In that respect, Justice Scalia’s criticism is surely right – this decision won’t stand up.

That doesn’t mean Justice Scalia is right on the merits. It does mean the Justices have not understood the concept of gerrymandering, have not taken seriously enough the work of political scientists to analyze gerrymandering and put the concept on a much stronger, and precise foundation.[2] Law without science is often hollow.

— This commentary was broadcast on WAMC Northeast Report, March 31, 2015.

[1] Shelby County v. Holder, 570 U. S. ___ (2013).

[2] See Brief Of Amici Curiae Professors Gary King, et al, 2006 U.S. S. Ct. Briefs LEXIS 30, in League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006). See also Stephen E. Gottlieb, In ‘Vieth,’ Court Continues to Misunderstand Gerrymandering, N. Y. Law Journal, August 19, 2004, at 4.


Is it Still the Pledge in Arabic?

March 24, 2015

You’ve heard that high school administrators in the Hudson Valley apologized for having the Pledge of Allegiance recited in Arabic for one morning during National Foreign Language Week.

Americans are funny about language. The Founders of this country took pride in knowing foreign languages and visiting other countries. From the beginning until the twentieth century we had robust foreign language speaking communities in the U.S. The Army, until World War I, had regiments recruited by area, language, ethnic group, and race. As a whole, the Army was a tower of Babel and as late as the Civil War and Spanish-American War, people of all backgrounds, speaking many of the world’s languages, served in units with their own languages. Only in the twentieth century did the military break that segregation down, putting people into units without regard to their geographic, linguistic or racial background, expecting soldiers to learn the English they needed to know.[1]

Then there was the movement to prevent children from growing up with any knowledge of German. A pair of very famous U.S. Supreme Court decisions defended the rights of parents to have their children learn German. [2] Thank heavens that President Roosevelt knew German and read Hitler’s Mein Kampf in the unexpurgated German, knew how vicious Hitler was and did everything he could to prepare America to defend against him.

And of course schools didn’t teach Russian after the War. God forbid you could read what they were doing. And more recently Persian. Somehow, while we proclaim the superiority of our way of life and its attractiveness for decent people everywhere, we are afraid that if Americans become familiar with the language of dictators, it is us that need to be afraid, not the dictators. Yet to protect national security we might need to encourage familiarity with foreign languages, even languages of those with whom we have a beef.

In the case of Arabic, it is a language spoken by many more of the victims of the jahadis than the jahadis themselves. Arabic speakers come here for the same reasons that refugees come here from all parts of the globe – for safety, for a chance to survive, and because they know that some Americans are warm and welcoming.

Their knowledge and their skills are valuable here, both their technical skills and their cultural and linguistic knowledge. Like all peoples, including other Americans, most are decent, kind, and industrious and a much smaller proportion aren’t. That’s humanity.

So it’s not such a bad idea that we learn that the Pledge can be and has been recited in all languages, that people can signify their devotion to American ideals of freedom, equality, inclusiveness and welcome, in all languages. For a country that claims to be founded on principles of freedom and equality, we are amazingly unwilling to deal with people who say things a little bit differently than we ourselves. Our culture is surprisingly conformist. Ultimately that demand for if conformity, and the fear it reflects, threatens our future much more than Arabic.

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

[1] 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 American From the Colonial Era to the Present 297-311 (New York: Free Press, Peter Karsten, ed., rev. ed. 1986): Bruce White, The American Military and the Melting Pot in World War I, in id. 317-28.

[2] Meyer v. Neb., 262 U.S. 390 (1923); Bartels v. Iowa, 262 U.S. 404 (1923).


Radicalization of Jihadi John

March 17, 2015

Identification of Jihadi John as a British citizen and college graduate has given rise to discussion about what radicalizes young people. There is no single answer but one aspect is to provide alternatives to the choice between deep frustration and dangerous radicalization.

Dreams of self-determination in much of the world have been shattered by dictators, corporate plunder and corruption of kleptocrats, too often with American backing. Dreams were shattered by the failure of pan-Arab and pan-African unity. Religious dreams were shattered by decades of repression of religious parties in the Middle East, jailing opposition leaders and attacking people over their faiths, and repeatedly denying them the fruits of victory at the polls. From the frustration of each failure came worse solutions. Our support and entanglement with repressive regimes have been a problem for us as well. And the damage is hard to undo – change creates instability and therefor danger.

The Humanitarian Law Project wanted to teach a Kurdish group how to bring their grievances to international bodies legally. Our government objected the group was on a terrorist list and teaching it peaceful ways to complain would only help it. The U.S. Supreme Court agreed and the lawyers backed off.[1]

We also have problems with radicalization. Some years ago, my research assistant and I discovered that high school history texts provided no models of citizen protest appropriate to a democracy. They systematically excluded dissent and disagreement in the name of patriotism. One of the books even pictured the Abolitionists before the Civil War as a lunatic fringe.

When people have no legitimate outlet, all hell can break out.

This country was extraordinarily lucky that the Civil Rights Movement had the leadership of wise and thoughtful people like Dr. Martin Luther King who took the path of nonviolence. They provided a path of peaceful protest, albeit protests that put the violence of the racist opposition on every TV set in the country. That reaction showed that everyone had been damaged by the repression of African-Americans, and that repression threatens democracy both because of what it does to the victors and to the losers. It showed that violence boomerangs in a democracy but does a great deal of harm – many paid with their lives for civil rights.

Many of us would just like other Americans to celebrate the virtues of America as it is. But chief among those virtues is the ability to go public with injustices and try to get them changed. That ability is also a powerful defense against home-grown violent movements. Unfortunately, it has been a well-kept secret in many schools. All too often, as in Ferguson, Missouri, we watch political leadership and police treating popular demonstrations as if they have no place in democracy, as if people are just supposed to keep their reactions to themselves.

The great Justice Louis Brandeis wrote, in 1927, that the Founders of our country

“knew that order cannot be secured merely through fear of punishment for its infraction; … that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones.”[2]

When people can’t or don’t understand how to get into that discussion, or are convinced they are powerless to participate, they are left with the hate that “menaces stable government.”

— This commentary was broadcast on WAMC Northeast Report, March 17, 2015.

[1] Humanitarian Law Project v. Holder, 561 U.S. 1 (2010).

[2] Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).


Alzheimers versus Iran

March 10, 2015

No it wasn’t treason. The Constitution defines treason as “levying War against [the United States], or in adhering to their enemies, giving them Aid and Comfort.”

The letter from forty-seven senators addressed to “the Leaders of the Islamic Republic of Iran” tells them the obvious – that we have a constitutional system in which they, forty-seven Republican senators, have the numerical strength to prevent adoption of the result of negotiations in any form other than an executive agreement. They apparently believe that the Iranian leadership had to be educated. Of course much of the Iranian leadership was educated, here.[1] The number of Iranians at all levels of government and private life in Iran who have studied in the U.S. is enormous. They know a great deal more about us than we do about them because, God forbid that we should know anything about – them! Horror. We might be corrupted by knowledge. They have no similar fear of us, despite the rhetoric of some of their fools, clearly not reflecting the majority of Iranians. They come here to study because they respect, and actually like most of us. The idea of making a grand bargain is actually attractive in Iran because most of them, in and out of government, want the U.S. on their side.

Why you ask? Because Iran’s strategic position is a big problem – a Shiite country in a sea of Sunni Muslims.[2] Their whole worldview is based on how to deal with their strategic isolation. They want power, even a bomb, not because of Israel – they know that possession of a bomb in this climate would make them more likely to be attacked, not less. They want strength to intimidate their nearer neighbors from aggression. But alliance with the U.S. would be very valuable to them. A grand bargain? If you understand what Iran needs, you’d cut through the nonsensical rhetoric on both sides and realize we could get a lot of benefits from each other, and any capable Administration would understand and strive for it.

So what’s with these senators. Actually it suggests Alzheimer’s. Some of us remember that a different Administration, a few years ago, eliminated Iraq, Iran’s major enemy in the Middle East, as any sort of threat. And then, even though Iran itself almost went to war with the Taliban,[3] that same Administration made a show of not entering into negotiations with Iran, calling it part of the Axis of Evil – self-contradictorily an Axis consisting of mutual enemies. Having messed up big time a decade ago, some are determined that if they messed up, nobody else is going to get it right. Except for the Alzheimer’s patients – they can’t remember the mistakes.

We talked for decades with the Soviets, the Communist Chinese. But not Iran – that’s off limits. The one Middle Eastern country, other than Israel, whose interests often line up with our own, is nevertheless not worth talking to. Have you ever walked into a nursing home filled with Alzheimers patients? Not all, but unfortunately a lot of them are screaming at everyone in sight and listening to no one. They can’t help it. So now we have the perfect Republican strategy – put the Alzheimers ward into the State Department, and voila, no negotiations, no strategy, no planning, no progress, but it doesn’t matter because nobody’s talking.

— This commentary was broadcast on WAMC Northeast Report, March 10, 2015.

[1] Ishaan Tharoor, Can Iran’s New U.S.-Educated Foreign Minister Mend Ties With Washington? http://world.time.com/2013/08/06/can-irans-new-u-s-educated-foreign-minister-mend-ties-with-washington/; compare Armin Rosen, Why It Doesn’t Really Matter That So Many Iranian Leaders Have Been Educated In The US, http://www.businessinsider.com/does-it-matter-if-irans-leaders-are-us-educated-2014-10#ixzz3TwmKDXlQ.

[2] See Iranian Foreign Policy Since 2001: Alone in the World (Routledge, Thomas Juneau & Sam Razavi eds.,

2013) for excellent analyses of Iranian isolation.

[3] Douglas Jehl, Iran Holds Taliban Responsible for 9 Diplomats’ Deaths, NY Times, September 11, 1998, http://www.nytimes.com/1998/09/11/world/iran-holds-taliban-responsible-for-9-diplomats-deaths.html.


Israel, Iran and American Diplomacy

March 3, 2015

Some people are angry at Israel because they are against Israel. But some of us are angry because we care so much about its survival and think it is being stupid. Popular foreign policy here and everywhere is about waving swords and shooting anyone in their way. It’s a quick and simple solution. But depend too much on the sword and die by the sword.

I’ve been rethinking what’s been going on in the Middle East. Many of us have been assuming that the conflict between Israel and Palestine was central to Middle Eastern policy and events. I have come to realize that the Palestinians have been used mostly as pawns in a very different struggle and it’s very important to understand that.

Radical foreign fighters have shown themselves willing to flock to battles all over the Middle East, except Palestine. They’re in Yemen, Syria, Iraq and Afghanistan. Palestinians have been kicked out of much of the Middle East. Theirs is not a popular cause. So why does it keep coming up?

Iran supports Hamas and Hezbollah as a way to reduce its isolation in the Sunni world. Iran has no significant beef with Israel. Ahmadinejah scored political points with inflammatory rhetoric but he and much of that rhetoric have been replaced. By seeming to make common cause with Sunnis, however, Iran hopes to make themselves harder to oppose or fight. And by directing aid to groups fighting Israel, it immunizes itself from the reaction to some Shiite forces deep in the Sunni world.

It is not in Iran’s interest to destroy Israel. Opposition to Israel is part of Iran’s foreign policy, protecting its bona fides in the Sunni Arab world. Destroy Israel and they’ll need something else. But let’s be clear – Iran can be a serious existential threat to a stupid Israel. By comparison other threats in their neighborhood are pinpricks.

Notice the opportunity that creates. The US, Iran and Israel all have things to give each other in a true, regional grand bargain. We could reduce Iran’s regional isolation because we have considerable influence with many of the regional players, Egypt, Jordan, Saudi Arabia, etc. Iran could contribute to Israel’s safety by backing off its support for Hamas and Hezbollah. And that could make a reliable peace in Palestine possible. Without external support, the Palestinians would not be nearly as threatening to Israel and a two state solution would really be possible.

I don’t mean to imply that it will be easy to get there. There’s a huge history of mistrust on both sides and both sides have good reason to mistrust the other. The nuclear negotiations, themselves difficult and sensitive, could build the mutual confidence necessary for a wider deal. Americans would have to give our leadership the support and confidence needed to work toward that goal, difficult in the face of Republican sabotage before we even know, let alone consider, whether our negotiators have proposed a constructive bargain.

The leadership of all three countries is skittish for ordinary political reasons. All three hold elections. No politician in either country wants to make a mistake on an issue like this. It would be a huge loss if fear of mistakes prevents the effort to reach a settlement of one of the big issues threatening us, Israel, the Palestinians and continually pulling the US into Middle Eastern conflicts.

I don’t have a pipeline to whatever the deal will look like. Nothing is automatic – a lot depends on our diplomacy and pressure. But major improvement is a possible outcome. So as John F. Kennedy famously told us, “Let us never negotiate out of fear. But let us never fear to negotiate.”

— This commentary was broadcast on WAMC Northeast Report, March 3, 2015.


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).


The American Melting Pot

February 17, 2015

I’d like to share with you some thoughts that came out of a short piece I was asked to write about the Roberts Court. I’d like to dedicate this commentary to Yusor Abu-Salha, who spoke on NPR’s Story Corps about how wonderful the U.S. is, where people of all backgrounds share one culture, shortly before she, her husband and sister-in-law were killed in Chapel Hill because they were Muslims, and to all the others, Christian, Jewish, Muslim, and all who have been murdered or tortured because they had what bigots defined as the wrong parents or beliefs.

You might think that the melting pot is the result of a lot of individual private decisions. But you’d be mostly wrong. Actually the melting pot is the result of a series of very public decisions. We made the decision, centuries ago, to provide a public education to everyone. That put us in the forefront of the world as an educated, progressive, productive and egalitarian society. We made the decision almost two centuries ago to provide public coeducational schooling. That put us in the forefront of the world in creating decent and progressive gender relations. We made the decision long ago to provide an education to immigrant children alongside the children who had been born here. That made us one people, regardless of where we came from. And all the private decisions in the great American melting pot took place in a world defined by our public schools.

Finally in the mid-twentieth century, the U.S. Supreme Court decided that we would treat race the same way that we had treated gender, language, religion and ethnic differences – that is, we would bring everybody into the same public schools. That opened the melting pot to still more of us so that our racial divisions are less sharp than they were a century ago – nowhere close to erased, but less sharp.

Chief Justice Roberts famously wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[1] But he wrote that in connection with a decision to prevent a pair of school districts from bringing people together across racial lines. No melting goes on with Roberts at the stove.

When decisions are made that advantage the majority, Justice Scalia makes it plain he thinks that’s just normal; he sees no need to ask whether anyone was discriminating or intending to treat minorities differently.[2] But there’s no vice versa for Scalia – any decision favoring racial minorities is automatically suspect for him. Indeed, he and Thomas have described “legal protection from the injuries caused by discrimination” as “special protection” and “favored status.”[3]

In 1782, French immigrant Hector St. John de Crèvecœur, famously wrote that immigrants “melted” easily into Americans, and freed themselves from the slavery of the Old World.[4] The same year, the Founders of our country adopted our motto, e pluribus unum, Latin for out of many one. Our Founders did all they could to welcome immigrants, making e pluribus unum a reality for us. That has been our country’s glory. That welcome has peopled our continental expanse, brought to our country the most talented and driven from all parts of the world, and allowed us all to share in the benefits of each other’s talents and accomplishments. That welcome has allowed us to build a country without the hostilities that have torn and still so blatantly tear other countries apart. There is nothing more truly American than e pluribus unum. And nothing more central to the development of our great country than the melting pot, even if some of those who now lead our highest institutions can no longer see it or enjoy its savory aroma. It was left for the British writer Israel Zangwill in 1909 to put the immigrants into “the great Melting-Pot where all the races of Europe are melting and reforming!” adding, “Into the Crucible with you all! God is making the American.”[5]

The Founders worked specifically to welcome Muslim immigrants to America. They would have been proud of the Abu-Salhas and ashamed of Craig Hicks, and would join us in cherishing the diversity of people who share decent lives in America and praying for that mutual respect everywhere.

— This commentary was broadcast on WAMC Northeast Report, February 17, 2015.

[1] Parents Involved v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007)

[2] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 515-18 (2006) (Scalia, J., dissenting in part).

[3] Romer v. Evans, 517 U.S. 620, 645, 652-53 (1996) (Scalia, J., dissenting).

[4] Hector St. John de Crevecoeur, Letters from an American Farmer (1782).

[5] Israel Zangwill, The Melting Pot: Drama in Four Acts (1909).


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