Archive for the ‘Constitutional Law’ Category

UCLA Law Review Vol. 60, Discourse

posted by UCLA Law Review

Volume 60, Discourse
Discourse

Equality Arguments for Abortion Rights

Neil S. Siegel & Reva B. Siegel

160

  April 9, 2013 at 4:02 pm   Posted in: Constitutional Law, Law Rev (UCLA), Supreme Court   Print This Post   No Comments

Family Law and Racial Preferences

posted by Gerard Magliocca

I wanted to flag a terrific new article by Katie Eyer that will be coming out soon in the University of Pennsylvania Law Review.  Here is the Abstract:

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Family law has escaped the colorblindness revolution. During the same time frame that the Supreme Court has adopted increasingly stringent constitutional standards for even “benign” uses of race (including most notably affirmative action), the lower courts have continued to take a loose and permissive approach to many government uses of race in the family. Thus, courts have continued to regularly affirm (and to apply minimal constitutional scrutiny to) the use of race to determine foster care and adoptive placements, as well as the use of race as a factor in custody disputes between interracial parents.

This paper, drawing on heretofore unexplored historical sources, examines the Supreme Court’s role in the development of these divergent approaches to the use of race in the affirmative action and family law contexts. As those sources demonstrate, the Court has — over the last 40 years — had numerous opportunities to address the growing divide. Nevertheless the Court (and particularly its most strident affirmative action detractors) have been reluctant to do so, at least in part because of a normative endorsement of the race-based practices at issue in the family law context. Thus, the Court has avoided taking up cases involving the use of race in family law — and taken other steps to limit the reach of its doctrine in the family law arena — based on a normative perception that remaining instantiations of race in family law are, at their core, benign.

This history has profound implications for the Court’s broader race law jurisprudence. Supreme Court doctrine has — on its face — rejected the possibility of a role for normative judgments about the “benign” or “invidious” nature of particular race-based classifications in its Equal Protection doctrine. But the history of the Court’s approach to family law suggests strongly that the Court itself does in fact weigh such factors sub rosa in its approach to taking up and adjudicating race law claims. This article suggests that there are serious process, legitimacy and substantive concerns raised by such a divergence, and discusses alternatives for bringing the Court’s doctrine into greater alignment with its practice.

  April 8, 2013 at 8:25 pm   Posted in: Constitutional Law   Print This Post   4 Comments

American Founding Son

posted by Gerard Magliocca

I’m pleased to say finally that the book is now available for pre-order.  Over the weekend I will post the Introduction to SSRN so that you can see a sample.

“Gerard Magliocca has done the country a great service by writing the first biography of one of America’s most important but under-appreciated statesmen. John Bingham, the father of the Fourteenth Amendment, helped put a guarantee of individual equality into the U.S. Constitution. In this important book, Magliocca tells the fascinating story of a crucial figure in our country’s long struggle to establish justice and create a more perfect union.”

-Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School

“Gerard Magliocca makes the most of the sometimes scanty evidence to paint an illuminating portrait of Ohio Congressman John Bingham, the author of Section One of the Fourteenth Amendment and perhaps our most neglected ‘framer’ of the Constitution.  From leading the impeachment prosecution of President Andrew Johnson, to serving as Ambassador to Japan, Bingham’s life was fascinating. And so too is this book that every student of our constitutional history should read.”

-Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory & Director, Georgetown Center for the Constitution

  April 5, 2013 at 3:23 pm   Posted in: Constitutional Law   Print This Post   2 Comments

Canonizing Barnette

posted by Gerard Magliocca

After I finished my draft on The Canonization of the Bill of Rights, I realized that there was a second-order problem that I had not considered.  The paper argues that West Virginia State Bd. of Educ. v. Barnette is a canonical opinion because it completed the process (begun by Franklin Roosevelt) of making the Bill of Rights into a central constitutional text.  But when and how did Barnette become canonical?  The draft just asserts that this is true without explanation.

The answer, I think, is that the school prayer cases in the early 1960s elevated Barnette.  If you look at how Barnette was cited in the 1940s and 1950s, there is nothing special.  Starting in the 1950s, though, you see the choice quotes from Barnette appearing in dissents by Justice Black and Justice Douglas (usually in First Amendment cases, but not entirely).  Then in School Bd. of Abington Township v. Schempp, the 1963 case that held that mandatory Bible reading in public schools was unconstitutional, the Court quoted Barnette at length near the end of the opinion:

  April 1, 2013 at 8:53 am   Posted in: Constitutional Law   Print This Post   2 Comments

Bartelt’s Dog and the Continuing Vitality of the Supreme Court’s Tacit Distinction between Sense Enhancement and Sense Creation

posted by Albert Wong

Last Term, in an amicus brief in United States v. Jones, 565 U.S. __, several colleagues and I highlighted the Supreme Court’s long, albeit not always clearly stated, history of distinguishing between sense-enhancing and sense-creating technologies for Fourth Amendment purposes.  As a practical matter, the Court has consistently subjected technologies in the latter category to closer scrutiny than technologies that merely bolster natural human senses.  Thus, the use of searchlights, field glasses, and (to some extent) beepers and airplane-mounted cameras was not found to implicate the Fourth Amendment.  As the Court explained, “[n]othing in the Fourth Amendment prohibit[s] the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology” may afford.  460 U.S. at 282 (emphasis added).  In contrast, the Court has held that technologies that create a new capacity altogether, including movie projectors, wiretaps, ultrasound devices, radar flashlights, directional microphones, thermal imagers, and (as of Jones) GPS tracking devices, do trigger the Fourth Amendment.  To hold otherwise, as the Court has stated, would “shrink the realm of guaranteed privacy,” leaving citizens “at the mercy of advancing technology.”  533 U.S. at 34-36.

In fact, of the landmark cases involving technology and the Fourth Amendment during the past 85 years (from United States v. Lee, 274 U.S. 559, in 1927 to Jones in 2012), only in one instance did the Supreme Court appear to deviate from this distinction between sense enhancement and sense creation.  In that case, United States v. Place, 462 U.S. 696, and its successors, City of Indianapolis v. Edmond, 531 U.S. 32, and Illinois v. Caballes, 543 U.S. 405, the Court held that the use of trained narcotics-detection dogs (more apparently similar to using a new capacity than merely enhancing a natural human sense) did not implicate the Fourth Amendment.  In our amicus brief in Jones, we rationalized Place, Edmond, and Caballes by arguing that dogs were unique, being natural biological creatures that had long been used by the police, even in the time of the Framers.  Further, we argued, a canine sniff, unlike the use of, say, a wiretap or a thermal imager, “discloses only the presence or absence of narcotics, a contraband item.”  462 U.S. at 707 (emphasis added).  Still, the apparent ‘dog exception’ was rankling. Read the rest of this post »

  March 31, 2013 at 11:35 am   Posted in: Anonymity, Constitutional Law, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Technology, Uncategorized   Print This Post   14 Comments

Free speech rights and free speech pedagogy

posted by Aaron Saiger

I am working on a paper about student speech rights in public school that has me vacillating about whether the classic Supreme Court case of Tinker v. Des Moines Independent Community School District (1969) is a brilliant exercise in linedrawing or an utter failure. Many readers will remember that Tinker held that students could wear black armbands to school in silent protest of American involvement in hostilities in Vietnam; school officials may interfere with or punish speech only if  they reasonably forecast that it will “materially or substantially interfer[e] with the requirements of appropriate discipline in the operation of the school or collide with the rights of others.”  The Tinker rule has the nice feature of explaining why a student cannot answer a teacher’s question “What were the results of Irish potato famine?” with “US Out of Vietnam!” while she can say the same thing in the hallway. More broadly, Tinker establishes a certain kind of pedagogical regime for the hours that students spend in-school-but-not-in-class, one where students can learn how to exercise constitutional rights by practicing them, up to the point of disruption.

Tinker’s flaws were made vivid once again this week by yet another case, this one from the Fourth Circuit, involving students being prohibited from and punished for wearing to school clothing that bears the likeness of Confederate flags. Such behavior seems initially very similar to wearing a black armband to protest Vietnam; but the courts of appeals have fairly consistently held that such speech can be barred under Tinker because histories of racial tension make it reasonable for school authorities to expect disruption to result from such displays. The new case, Hardwick v. Heyward, is quite emphatic on this score, emphasizing that the mere fact that the shirts did not lead to disruption is immaterial, because it was reasonable for school officials to predict disruption; moreover past racial disputes in the school were material, because they made the prediction more reasonable. The Hardwick rationale pretty clearly means that, had there once been fistfights in the Des Moines schools about the Vietnam War, or perhaps even World War II, then the armbands could have been banned in the present. Thus Tinker is deployed to create a particularly strong kind of hecklers’ veto.

My gut reaction to this case is — who is fooling whom? Read the rest of this post »

  March 30, 2013 at 10:17 pm   Posted in: Civil Rights, Constitutional Law, Education, First Amendment, Race   Print This Post   4 Comments

The child, not the school

posted by Aaron Saiger

The Indiana vouchers program I posted about earlier, significant on its own, also partakes of a trend. The New York Times gets it:

A growing number of lawmakers across the country are taking steps to redefine public education, shifting the debate from the classroom to the pocketbook. Instead of simply financing a traditional system of neighborhood schools, legislators and some governors are headed toward funneling public money directly to families, who would be free to choose the kind of schooling they believe is best for their children, be it public, charter, private, religious, online or at home.

In particular, the Times is right that what is sought here is redefinition. Once states established and supported institutions – public schools – that parents could take or leave, so long as they educated their children somehow. The new paradigm has states instead provide a quantum of funding earmarked for each child, that parents can deploy at any educational institution of their choosing. The fact that the aid attaches to the child and follows her to her family’s chosen school is much more important than the various labels ascribed to the funding and/or the institutional provider – public, private, charter, voucher.

As people learn to function within, and get used to, this new paradigm, they will stop thinking of educational politics as the way to create good public schools, and start thinking of it in terms of how big the aid pie is and how it gets divided up. Whether a school is public or private, online or bricks-and-mortar, religious or not – these stop being political questions and start being questions that markets will resolve through supply and demand. Read the rest of this post »

  March 28, 2013 at 10:26 pm  Tags: charter schools, vouchers  Posted in: Administrative Law, Constitutional Law, Cyberlaw, Education   Print This Post   8 Comments

Vouchers ascendant?

posted by Aaron Saiger

The heartening (and unanimous) decision by the Indiana Supreme Court on Tuesday to uphold that state’s school-voucher program further undermines a dominant but false narrative in the academy, to the effect that school vouchers are a distraction with little serious political support. The opinion is notable for several reasons, and I expect to post again about some of them. Here I note only two. First, the Indiana program makes enormous numbers of children voucher-eligible. Second, the Indiana court’s analysis makes some interesting and important moves with respect to both its constitution’s religion and education clauses.

Read the rest of this post »

  March 28, 2013 at 12:13 pm  Tags: vouchers  Posted in: Constitutional Law, Education, Religion   Print This Post   4 Comments

UCLA Law Review Vol. 60, Discourse

posted by UCLA Law Review

Volume 60, Discourse
Discourse

Human Rights, Labor, and the Prevention of Human Trafficking: A Response to A Labor Paradigm for Human Trafficking

Jonathan Todres

142

  March 27, 2013 at 2:20 pm   Posted in: Constitutional Law, Law Rev (UCLA), LGBT   Print This Post   No Comments

Sequester the Filibuster

posted by Aaron Zelinsky

Last Friday, the White House withdrew Caitlin Halligan’s nomination for the D.C. Circuit (at her request). This sorry incident underscores just how broken our confirmation process has become. Halligan is eminently qualified (and not even that liberal). Vacancies in the Third Branch continue to pile up and confirmations remain stalled.

What’s to be done?

The first step – as always – is to acknowledge that we have a problem. And it’s not just a Republican problem. Democrats played similar (albeit less successful) games during the George W. Bush years.

The institutional problem is that when in control of the Presidency, the dominant party talks a lot about how nominees are entitled to an up-or-down vote. But once they lose the Executive Branch, the same folks (GOP or Dem) change their tune.

The solution to the confirmation stalemate lies in another unpopular Congressional measure: the sequester. No really. I’m serious. Legislative entrenchment is the key to solving the judicial confirmation fiasco.

The Senate should modify Rule 22 (the cloture rule) to mandate that, beginning January, 2018, if more than five appellate court vacancies exist, the Senate will proceed to up-or-down votes until fewer than five vacancies remain. In other words, sequester the filibuster.

The new rule would be politically neutral: we don’t know who would be in charge of the presidency or Senate in six years. And it wouldn’t destroy the cherished filibuster – it would only modify it, allowing Senators to filibuster some nominees who were truly objectionable, as long as they confirmed others. Of course, this won’t solve the current problem, but at least it will chart a politically neutral framework for getting us out of the mess we’ve created.

The sequester might be unwise and unpopular, but it has shown that legislative entrenchment can sometimes ‘work.’ If there’s to be a silver lining to these cuts, let it be an end to our broken judicial confirmation process.

Photo Credit: Wikipedia.

  March 25, 2013 at 10:52 am   Posted in: Constitutional Law   Print This Post   6 Comments

Do Corporations Enjoy a 2nd Amendment Right to Drones?

posted by Frank Pasquale

An emerging, “solutionist” narrative about drones goes something like this:

Yes, we should be very worried about government misuse of drones at home and abroad. But the answer is not to ban, or even blame, the technology itself. Rather, we need to spread the technology among more people. Worried that the government will spy on you? Get your own drones to watch the watchers. Fearful of malevolent drones? Develop your own protective force. The answer is more technology, not regulation of particular technologies.

I’d like to believe that’s true, if only because technology develops so quickly, and government seems paralyzed by comparison. But I think it’s a naive position. It manages to understate both the threats posed by drones, and the governance challenges they precipitate.
Read the rest of this post »

  March 24, 2013 at 1:19 pm   Posted in: Constitutional Law, Military Law, Political Economy, Privacy, Property Law, Technology   Print This Post   4 Comments

Simultaneous Office Holding

posted by Gerard Magliocca

In going through some of the ratification materials on the Constitution, one point of discussion that I found interesting is the idea that it was permissible for someone to hold federal and state office simultaneously.  This has happened in our history (most notably when Huey Long served as the Governor and the Senator of Louisiana), but I’m not sure how widespread this was in the eighteenth and nineteenth centuries.  (No examples come to mind today.)  Any thoughts on that would be appreciated.  (Structurally, it’s interesting that the Framers thought this vertical merger was not a problem while it was bad for members of Congress to hold positions in the executive or judicial branches.)

  March 22, 2013 at 10:19 am   Posted in: Constitutional Law, Uncategorized   Print This Post   6 Comments

The Canonization of the Bill of Rights

posted by Gerard Magliocca

The draft of my paper is here.  It needs some minor revisions, but the substance won’t change.

  March 20, 2013 at 5:51 pm   Posted in: Constitutional Law   Print This Post   2 Comments

Audio of FDR’s Constitution Day Address

posted by Gerard Magliocca

I’ve blogged before about Franklin D. Roosevelt’s Address on Constitution Day in 1937, which is an exceptional interesting speech that will be a central part of my next book on the New Deal.  I’ve recently come across an audio recording of the speech, which you can listen to here.  His disdain for the Supreme Court is pretty obvious.

  March 19, 2013 at 6:44 pm   Posted in: Constitutional Law   Print This Post   No Comments

Bright Ideas: Mark Weiner on his new book Rule of the Clan

posted by Deven Desai

Sometimes fortune smiles upon you. I met Mark Weiner when we started law school. My life and my work is much better for it. Mark is a scholar and more. He obtained his B.A. in American Studies from Stanford, his J.D. from Yale, and his PhD in American Studies from Yale.

His most recent project is his excellent book, The Rule of the Clan. Ambassadors, professors from all around the world, members of the 9/11 commission, and publishers have embraced the book. Mark argues, and I think rather well, that the state has a quite important role to play, and we ignore that to our peril. Publishers Weekly has said:

A nuanced view of clan-based societies … Weiner’s argument is a full-throated defense of the modern centralized state, which he sees as necessary to protect human rights: “In the face of well-intended but misguided criticism that the state is inimical to freedom, we must choose whether to maintain the state as our most basic political institution or to let it degrade.” An entertaining mix of anecdote and ethnography.

The New York Journal of Books has called the book “accessible, mesmerizing, and compelling.”

I wanted to get into how Mark came up with the project, why it matters, and, for the writers out there, the process of writing about such a complex subject but in a way that is accessible to a general audience. So I asked Mark whether we could do a Bright Ideas interview. He graciously agreed.

Mark, the book is great. I want to jump in and ask, What do you mean by “clan”?

Thanks, Deven. In my book, I consider clans both in their traditional form, as a subset of tribes, but also as a synecdoche for a pattern by which humans structure their social and legal lives: “the rule of the clan.” Clans are a natural form of social and legal organization. They certainly are more explicable in human terms than the modern liberal state and the liberal rule of law. Because of the natural fact of blood relationships, people tend to organize their communities on the basis of extended kinship in the absence of strong alternatives.

So why clans now?

Two reasons. First, the United States is involved militarily in parts of the world in which traditional tribal and clan relationships are critical, and if we don’t understand how those relationships work, including in legal terms, we have a major problem.

Let me give you an example from Guantanamo. In the book, I tell a story of a college friend who was in charge of the team there interrogating detainees from Saudi Arabia. (I should note that my friend finds torture morally repugnant and against the national interest, as do I, and that she has advocated for this view in meaningful ways.) Over the course of her work, my friend realized that because of the first-name/last-name structure of the detainee tracking system, basic information about detainee tribal affiliations hadn’t been gathered or had been lost. This meant, among other things, that we couldn’t fully appreciate the reason why some of these men had taken up arms against us in the first place—for instance, because the United States had become embroiled in their centuries-long, domestic tribal war with the House of Saud.

Our ignorance about these issues is what I call the contemporary “Fulda Gap.” Our lack of knowledge about more traditional societies hinders our ability to understand the motivations of those who oppose us and leaves us vulnerable—and, even more important, it diminishes our ability to cooperate with our friends and to assist liberal legal reformers abroad in ways that are both effective and ethical.

The second reason to study clans, and ultimately for me even more important than the first reason, has to do with our own political discourse here at home. You could say that I became interested in clans because of widespread ideological attacks against the state within liberal societies—that is, attacks on government. By this I mean not simply efforts to reduce the size of government or to make it more efficient. Instead, I mean broadside criticisms of the state itself, or efforts to starve government and render it anemic.

I think you are saying there is something about clans that helps us organize and understand our world. What is it?

It’s often said that individual freedom exists most powerfully in the absence of government. But I believe that studying the rule of the clan shows us that the reverse is true. Liberal personal freedom is inconceivable without the existence of a robust state dedicated to vindicating the public interest. That’s because the liberal state, at least in theory, treats persons as individuals rather than as members of ineluctable status or clan groups. So studying clans can help us imagine what our social and legal life would become if we allow the state to deteriorate through a lack of political will.

By the way, the idea that the state is somehow inimical to freedom—that we gain individual freedom outside the state, rather than through it—is hardly limited to the United States. It was a core component of Qaddafi’s revolutionary vision of Libya. Or consider Gandhi, who advocated for a largely stateless society for postcolonial India. Fortunately for India, his vision wasn’t realized. Instead, we owe the prospects for further liberal development there to the constitution drafted by B. R. Ambedkar.

Hold on. From Indian independence to Libyan revolution seems a long jump. Can you help me connect the dots?

Read the rest of this post »

  March 19, 2013 at 1:47 pm  Tags: clans, Constitutional Law, international law, rule of law, terrorism, War on Terror  Posted in: Articles and Books, Bright Ideas, Constitutional Law, History of Law, International & Comparative Law, Jurisprudence   Print This Post   One Comment

The Rule of the Clan – Mark Weiner’s new book

posted by Deven Desai

What is happening with the world? Is it falling apart? Is the state the problem? Is everything to big? Is everyone better off breaking into small groups? Mark Weiner has answers in his book The Rule of the Clan. Understanding clans helps us understand the problems and relationships among individual liberty, the state, domestic policy, and foreign policy.

Mark Weiner is one of the best thinkers I know. I will note that Mark is one of my dearest friends as well. Mark has authored three books. The first two have won awards. The latest, Rule of the Clan, is, to me, yet more impressive. I will be posting more about this book. But for now, here is Mark on the Brian Lehrer Show.

  March 15, 2013 at 2:05 pm   Posted in: Articles and Books, Constitutional Law, Culture, History of Law, International & Comparative Law, Law and Humanities   Print This Post   No Comments

Standing in the Same-Sex Marriage Cases

posted by Gerard Magliocca

I’d like feedback on the following question.  Suppose the Supreme Court (or the controlling concurring opinion) says that there is no standing in the DOMA and Proposition 8 appeals.  Where would that leave us?

My understanding is that such a holding would vacate the Second Circuit and Ninth Circuit opinions.  At that point, all you would have are the District Court opinions.  Then could California, for example, change its mind and appeal from that ruling in Perry to create standing for a new Ninth Circuit opinion?  (The Justice Department, I assume, will not do this for DOMA.)  Is there finality in a decision not to appeal when a case is returned to the District Court?

If these District Court opinions are final, then who else besides those litigants could get relief?  Presumably, only same-sex couples who live within the jurisdiction of the respective district courts.  Does that mean that if a couple moves to that district they are immune from DOMA or can get married?  If so, what residency is required?  Could I just rent my house to folks for a day to make them eligible?

All of this might suggest that dismissing these cases on standing grounds would be a mistake, or that not defending them on the merits was a mistake.

  March 15, 2013 at 9:31 am   Posted in: Constitutional Law   Print This Post   6 Comments

James Wilson and Modern Democracy

posted by Gerard Magliocca

I am starting to give more thought to writing something about James Wilson.  (In other words, my interest is now a step above, “Hey, he’s an interesting guy and somebody should write a new biography about him.”)  As part of my research, I am working through his major speeches, including his arguments at the Constitutional Convention.

What jumps out is that Wilson was probably the most modern Founding Father, by which I mean that his views correspond most closely to the way the Republic works today.  Granted, he had some wacky ideas too (for example, he liked a Council of Revision that would include the President and the Supreme Court), but then again so did Madison and Hamilton.  Consider his positions:

1.  Wilson was the strongest proponent of electing the President through a direct popular vote.  (That still hasn’t happened, of course, but it is closer the modern sensibility.)

2.  He was one of the strongest voices in favor of having the Senate elected based on population because he believed in one-person, one vote (at least, one eligible person, one vote).

3.  Wilson consistently argued against supermajority rules on the same principle.  For example, he wanted a majority of the House and Senate to have the power to approve treaties, which is basically the modern practice.

4.   He argued in favor of shortening the citizenship requirements for members of Congress because immigrants would make an important contribution to our democracy.

5.  Wilson was a devotee of federal authority who argued (along Hamiltonian lines) for a broad reading of implied powers.  Like Hamilton, he was an immigrant (in this case from Scotland), who lacked strong ties to any particular state.

Anyway, I’ll probably post some more tidbits as I move along through what I would call basic research at this point.

  March 13, 2013 at 1:13 pm   Posted in: Constitutional Law   Print This Post   No Comments

Doing the Wrong Thing for the Right Reason

posted by Gerard Magliocca

Lately I’ve been thinking about constitutional cases where the Supreme Court did something terrible but said something wonderful.  The first example that comes to mind is Korematsu.  The holding in that case upholding the mass detention of American citizens who were of Japanese descent is considered an embarrassment, but the opinion’s statement that all racial classifications must be subject to “the strictest scrutiny” is now central to equal protection law.

How many other decisions are there that are like this?  Another possibility in Gobitis, which upheld the mandatory flag salute for schoolchildren who objected on religious grounds but also (as I explained in a prior post) invoked the Bill of Rights in a way that broke new ground.  Other nominees?

  March 12, 2013 at 5:06 pm   Posted in: Constitutional Law, Uncategorized   Print This Post   10 Comments

Coates on Racism

posted by Frank Pasquale

I found this a particularly powerful column by Ta-Nehisi Coates on the frisking of Forest Whitaker at a New York City deli:

Last month the actor Forest Whitaker was stopped in a Manhattan delicatessen by an employee. Whitaker is one of the pre-eminent actors of his generation. . . Since the Whitaker affair, I’ve read and listened to interviews with the owner of the establishment. He is apologetic to a fault and is sincerely mortified. He says that it was a “sincere mistake” made by a “decent man” who was “just doing his job.” I believe him.

We can forgive Whitaker’s assailant. Much harder to forgive is all that makes Whitaker stand out in the first place. New York is a city, like most in America, that bears the scars of redlining, blockbusting and urban renewal. The ghost of those policies haunts us in a wealth gap between blacks and whites that has actually gotten worse over the past 20 years. But much worse, it haunts black people with a kind of invisible violence that is given tell only when the victim happens to be an Oscar winner.

The “invisible violence” extends to the newsmagazine of NYC’s billionaire mayor, to his law enforcement policies. Implicit bias is pervasive. We need not accuse any particular person of evil intent to observe the corrosive structures that reinforce it.

  March 7, 2013 at 7:56 pm   Posted in: Civil Rights, Constitutional Law, Criminal Procedure   Print This Post   No Comments

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