The idea that the Constitution is problematic because it labels slaves “three-fifths of a person” comes up frequently in news stories and online conversations. For instance, the New York Times discussion earlier this year about House members reading the Constitution noted that, “Certainly the Republican leadership is not trying to suggest [...]]]> It’s very common to hear progressive writers criticize the racial inequality in the Constitution. One common such criticism invokes the Three-Fifths Clause — that is, writers criticize the Constitution as a document which unjustly labels slaves as merely “three-fifths of a person.” This sort of statement suggests that the Three-Fifths Clause created some sort of legally diminished status for Blacks, perhaps granting them only three-fifths of others’ rights or protections.

The idea that the Constitution is problematic because it labels slaves “three-fifths of a person” comes up frequently in news stories and online conversations. For instance, the New York Times discussion earlier this year about House members reading the Constitution noted that, “Certainly the Republican leadership is not trying to suggest that African-Americans still be counted as three-fifths of a person.”

This sort of framing, while common, reflects a fundamental misunderstanding of the Three-Fifths Clause and of what the Constitution does and does not say about race.

First of all, the Constitutional text itself was not the major legal source of the subordinated status of Blacks. In fact, the Constutition is largely silent on issues of race. It only mentions slavery a few times, never by name. (The Three-Fifths Clause is one of these mentions.)

The subordinated legal status of Blacks in America was not caused by operation of the Three-Fifths Clause or other portions of the Constitutional text. Rather, Blacks’ subordinated legal status was created by a variety of state statutes. Those state laws were the legal basis for slavery, which stripped enslaved Blacks of their freedom and rights. (A variety of other state laws also disempowered Blacks.)

Thus it is incorrect to say, referring to rights or personhood, that the Constitution reduced slaves to three fifths of a person. Rather, state laws removed essentially all human rights and protections from enslaved Blacks (and removed many rights from non-enslaved Blacks). And the Constitution permitted this. Remember, the Constitution is mostly silent on slavery. Its biggest single contribution to racial subordination was silence.

This makes clear that the idea of “three fifths of a person” in fact vastly overstates the rights held by enslaved Blacks. Under state slave laws, slaves were not treated as “three-fifths of a person” with respect to rights or protections, because they were not treated as people at all.

So, if the Three-Fifths Clause didn’t directly strip slaves of rights, what exactly did it do? It was part of a structure designed to give the South political power.

At the Constitutional Concenvention, the question arose of how to count slaves for purposes of Congressional representation. Slaves were a large population — twenty percent of the total U.S. population at the time, with much higher representation in states like Virginia. The slave state Virginia had 420,000 white citizens and 280,000 slaves. And representation in the House was (and still is) based on state population. But which population mattered? Was it a state’s free population only, or its total population including slaves? This would make a big difference.

Southern supporters of slavery wanted slaves to be fully counted for purposes of determining House seats. This would of course increase the South’s political power, since the vast bulk of slaves lived in Southern states. Meanwhile, Northern politicians argued that slaves should not be counted for representation purposes. The compromise was eventually to count slaves as three-fifths of a person, for purposes of determining House seats.

And of course, it does not explicitly mention race or slavery: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

All of this should make clear just how misguided the common misunderstanding is. The Three-Fifths Clause was not a provision which reduced slaves to three-fifths rights. In fact, this was an instance where lower numbers were preferable. Southern slave supporters were arguing in favor of a five-fifths clause, so to speak — that is, they wanted their slaves to be fully counted for purposes of determining House seats — while Northern abolitionists were arguing in favor of zero.

(Image: Wikicommons)

Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”

MGK leads a movement (Youtube)

Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on [...]]]>

Like Professor Zick, I am grateful for the invitation to share my view of the world with Concurring Opinions. I’d like to pick up where his post on strange expressive acts left off and, along the way, perhaps answer his question.

Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”

MGK leads a movement (Youtube)

Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on the one hand and, on the other, anxious and unprepared law enforcement officials. A fateful mix.

In North London in early August, mobile online social networking and messaging probably helped outrage over the police shooting of a young black man morph into misanthropic madness.  Race-inflected flash mob mischief hit the U.S. this summer, too. Most major metropolitan newspapers and cable news channels this summer have run stories about young black people across the country using their idle time and fleet thumbs to organize shoplifting, beatings, and general indiscipline. This is not the first time the U.S. has seen the flash mob or something like it. (Remember the 2000 recount in Florida?) But the demographic and commercial politics of these events in particular ought to raise eyebrows.

A half century ago, high rates of marriage were close to universal.  The one notable exception – and the subject of alarm in a much vilified report by Daniel Patrick Moynihan in 1965 – involved lower class African-Americans, whose divorce rates were high and non-marital birth rates were rising.  Today, marriage has emerged as a marker of class for the country as a whole.   For the first time ever, fewer than half of all households consist of married couples.  Moreover, just like access to health care, stable employment, and higher education, access to marriage has become a class-based affair.  According to the National Marriage Project, the likelihood of marrying, staying married [...]]]> Richard Banks,Is Marriage for White People? How African American Marriage Decline Affects Everyone (Dutton 2011).

A half century ago, high rates of marriage were close to universal.  The one notable exception – and the subject of alarm in a much vilified report by Daniel Patrick Moynihan in 1965 – involved lower class African-Americans, whose divorce rates were high and non-marital birth rates were rising.  Today, marriage has emerged as a marker of class for the country as a whole.   For the first time ever, fewer than half of all households consist of married couples.  Moreover, just like access to health care, stable employment, and higher education, access to marriage has become a class-based affair.  According to the National Marriage Project, the likelihood of marrying, staying married and raising children within marriage correlates strongly with education.   Compared to twenty years ago, the likelihood that a fourteen-year old girl will be in a family with both parents has risen for the children of college graduates and fallen substantially for everyone else.  In the midst of cries of alarms about family decay, marital stability has increased for college graduates with declining divorce rates and non-marital birth rates that have stayed below ten percent.  As in 1965, however, the notable exception to the rosy picture for family stability, at least for the elite, comes from African-Americans.   While the white   non-marital birth rate for college graduates has stayed at 2%; for African-American  college graduates, the numbers are rising and now approach the 25% level that caused such alarm at the time of the Moynihan report.  National Marriage Project, fig. S.2, p. 56.

Stanford Law Professor Richard Banks, in a book that has already triggered fireworks, courageously addresses the issue.   In Is Marriage for White People?  How the African American Marriage Decline Affects Everyone, he points out the enormous disparity between the marriage rates of black men and black women and the fact that the issue is no longer one limited to the black underclass.  While marriage has effectively disappeared from the poorest communities (the non-marital birth rates for black high school dropouts is 96%), Banks’ concern is successful African-American women.  Their marriage rates have been dropping, and their dissatisfaction with the behavior of black men is the subject of plays, movies and Banks’ book.  Banks’ explanation is straightforward: black women have been so disproportionately successful that they outnumber the men.  So, too, is his solution.  He writes the book to argue that the only realistic choice for African-American women is to marry outside the race and as a prominent African-American male, he is effectively giving them permission.

While Banks does an exceptional job describing the plight of the most talented African-American women (the book has good stories in addition to its good statistics), he punts on a number of issues.  He treats the behavior of the men as a consequence of the numbers game and, rather than exhort black men to do better by their women, he addresses the book to the women – give up, if you can, on racial exclusivity and the men, facing a more competitive market, will have to come around.  He also does not question the importance of marriage.  Some would celebrate the freedom to create a variety of family relationships and associate higher rates of marriage with male dominance.  On this issue, Banks gets a pass.  He does not take on the larger issue of family organization.  Instead, he addresses the pain of well-educated African-American women who want a committed partner in their lives and are frustrated in their inability to find one.

The most intriguing issue underlying Banks’ book, however, may be its implications for the country as a whole.  Is the experience of the African-American middle class, like the experience of poorer African-Americans a generation earlier, likely to be a bellwether for the country as a whole?  If so, is marriage a viable institution for anyone?

Banks details the gender imbalance in the black community that underlies the marriage market.  Women’s accomplishments exceed the men’s at every level. In college, there are three women for every two men (p. 38).  On the stage at graduation, the gap grows, with twice as many African-American women earning bachelor’s degrees as do the men.  In graduate school, it widens further with the women outnumbering the men by more than two to one.  (Law school has slightly better rates: in 2008, 1,109 black men graduated compared to 1,893 black women (p. 39).)  The relatively small number of men who “make it” have a large number of women from which to choose; the mismatch is exacerbated by the fact that the men are much more likely than the women to marry outside of their race (pp. 33-34).

Consider how far the logic in this book extends out — to either the African-American working class that has fallen further behind or to other races.  After all, the marriage plight of the successful – the brilliant, well-educated, disciplined, prosperous and lucky women in the African-American middle class – comes in part from the fact that they are not in the same marriage pool as the simply ordinary.  Banks sympathetically describes the difficulties in making a relationship work between a female lawyer and a male chef or construction worker, but he does not examine the growing economic inequality that has recreated class as a much more difficult boundary to cross.  International studies demonstrate that growing societal inequality tends to produce high rates of chronic unemployment, imprisonment, substance abuse and mental illness that disproportionately affect less skilled men, and effectively write off a large percentage of the men as unmarriageable.

The result is affecting the role of marriage in the country as whole.  Nationally, women of all races graduate from high school and college at higher rates than the men.  The sole remaining bastions of male predominance are the high end of the income ladder, and the more lucrative graduate and professional fields – and these elites are the only group in society for whom marriage remains the dominant form of family organization.  Banks devotes his attention to the group on the losing end of the marriage market best able to take care of itself – a successful group of women with good jobs, decent incomes, and a high degree of self-sufficiency – presumably because this is the one group for which he has a solution.

For those without college degrees of every race, male wage levels, employment opportunities, and stability have fallen while they have risen for women.  The African-American poor have never recovered from the loss of inner city jobs nor have they benefitted economically from the civil rights revolution that opened doors for highly skilled professionals.  While the mismatch between men and women produces heartache for middle class African-American women, the much greater gender imbalance in poor communities reinforces class lines and reduces the life chances of children born to everyone else.

Banks’ solution – encourage successful African-women to marry outside the race – may succeed in increasing the women’s marriage prospects.  And if it does, it may prompt better behavior from African-American men.  But it can do nothing to address the ultimate problem – a society that treats a high percentage of all men as disposable.  The result reduces the role of marriage in society as a whole and to the extent that it also reduces the resources available to the next generation, it impoverishes us all.

_______________________________________________________________________

June Carbone is the Edward A. Smith/Missouri Chair of Law, the Constitution and Society at the University of Missouri at Kansas City and Naomi Cahn is the John Theodore Fey Research Professor of Law at George Washington University Law School.  They are the co-authors of Red Families v. Blue Families:  Legal Polarization and the Creation of Culture (Oxford 2010).

When I finally got access to Lexis as an undergraduate at Carleton, one of the first things I did was run a search for something approximating a “Critical Jewish Theory”. And I came up with … virtually nothing. With one very notable exception — Stephen Feldman at the University of Wyoming (I know, I know: [...]]]> The first two areas I could say I had an actual scholarly interest in were Church/State law and Critical Race Theory. This wasn’t an accident — I got interest in CRT because the method of analysis it used really spoke to me as a Jew. It seemed to do a better job of capturing the various problems and barriers faced by members of marginalized groups beyond the standard, thin liberal story.

When I finally got access to Lexis as an undergraduate at Carleton, one of the first things I did was run a search for something approximating a “Critical Jewish Theory”. And I came up with … virtually nothing. With one very notable exception — Stephen Feldman at the University of Wyoming (I know, I know: Jewish studies in Wyoming — could it get any more cliched?) — it was a virtual dead-end. Even Professor Feldman’s work, which I admire and has influenced me greatly, focuses primarily on the American Church/State context. An important topic, to be sure, but hardly the only one which intersects with Jewish lives and areas of concern (international law, in particular, seems like a gimme).

This absence struck me as very strange. In general, the CRT movement has been pretty good about extending itself to a variety of different identities. Though the original works focused primarily on African-Americans (and really, African-American men), we now have Critical Race Feminism, LatCrit, Asian-American themed CRT, Queer Studies, and a host of others. The lack of an analogous school of discourse applied to the Jewish experience is not a function of disciplinary narrowness.

So what gives? I have some thoughts, but I don’t find any of them particularly satisfactory. The cheap answer is that CRT is a “left” movement and contemporary anti-Semitism is primarily a leftist project. I reject that for two reasons: first, because I don’t think right-wing anti-Semitism is as dormant as conservatives like to claim, and second, because the various crit movements have never really shied away from “friendly fire”. There have been some particular points of tension between CRT writers and the Jewish community — Mari Matsuda’s famous hate speech article in the Michigan Law Review strongly considered the possibility of labeling Zionism “hate speech”, one of Daniel Farber & Suzanna Sherry’s critiques of CRT was entitled Is the Radical Critique of Merit Anti-Semitic? (83 Calif. L. Rev. 853 (1995)) — but nothing severe enough to force a permanent fissure.

Possibly the best answer I have relies on the particular form in which anti-Semitism is often instantiated in the modern world. Most other -isms are predicated on inferiorizing their targets. This can be done contemptuously (as often is the case in racism), or clothed as paternalism (as often is sexism). Modern anti-Semitism, by contrast, does not treat Jews as incompetent or inferior at all. Much the opposite — it views them as hyper-powerful; a conspiratorial, parochial sect whose tentacles control the government, the media, and the banks, but whose loyalty lies only with themselves. There’s often a grudging respect to it, but the respect one gives to a particularly dangerous villain. It’s easy to see these tropes popping up again and again in “anti-Zionist” discourse worldwide, where accusations of dual loyalty are very much part of the discussion and standard Jewish interest-group lobbying is seen as uniquely nefarious and abusive. Still, the crits, focused on groups whose problem is that they don’t have enough voice or sway, are ill-equipped to talk about a group whose “problem” is that they are seen in the popular eye as being too influential. Couple this with the fact that Jews, as a group, are relatively well-off (though this flattens distinctions within Jewish subgroups) and it can be hard to see them as suffering from an “oppression” worth analyzing.

But obviously, economic wherewithal is not the alpha and omega of CRT-style analysis (after all, a considerable portion of the movement’s energy is dedicated to refuting the idea that “it’s not race, it’s class!”). And Jewish history in particular is replete with instances of Jews being placed in the role of the “buffer”, given a fair amount of influence but designed to be the targets of popular resentment. Simply taking at face value that Jews have it all and that prejudice against them has been relegated to sporadic acts of rabid hate by Klansmen is precisely the sort of quiescence that Crits tend to rebel against.

Indeed, the fact that the mechanics of anti-Semitism in particular are not adequately captured by contemporary stories of oppression is all the more reason why it desperately needs analysis akin to what CRT has provided in the context of race. And I do believe a similar approach has a lot to offer in the Jewish context. The allegedly pervasive presence of the “race card” is the old nemesis of anti-racist workers everywhere, but of late the “anti-Semitism card” has been an increasingly prominent method of dismissing claims by Jews of unfair treatment. The myth of the “Judeo-Christian” tradition (which, as a political trope, is invariably 100% Christian) acts to sublimate an independent Jewish political voice — while there are many Jews in politics, there are very few who speak “as Jews”, particularly when doing so would seriously challenge dominant conceptions of the Jewish role or place. It is highly notable, in my view, that “Judeo-Christian morality” is seen as a deeply conservative normative commitment, despite Jews being among the most socially liberal denominations in America today. That Christians politicians have appropriated Jewish experience in ways foreign to the actual Jewish political and theological tradition is an example of the boundaries on the “love” they have for us; that Jews have been unable to effectively resist is an example of our marked political limitations. And while Israel certainly has its fair share of sins, the massively disproportionate vitriol and condemnation directed its way (indeed, directed to the very concept of it existing) by international legal actors clearly implicates anti-Semitic norms (and the fact that I, an early supporter of J Street and a strong critic of the Netanyahu administration, feel compelled to verify that “yes, I can tolerate criticisms of Israel without labeling them anti-Semitic” is itself symptomatic of a discourse gone badly awry).

It’s not the case that nobody has done any writing on these topics. In addition to Feldman, Albert Memmi’s The Liberation of the Jew would have to be considered a foundational text in any “CJT” movement, and David Hirsh has recently written a stellar paper entitled Anti-Zionism and Antisemitism: Cosmopolitan Reflections (Hirsh also writes often for the Engage blog, which is essential reading for anyone interested in this subject). But there’s a lot more to be done, and I still find it odd that the disciplinary gap has persisted for this long.

Balkin’s narrative of redemption speaks of unfulfilled promises made at the nation’s founding. These promises, he argues, should guide reform. Improvement, amendment, and advancement are not merely results of blind flux, but concerted efforts to achieve the “promise[s] of the past.” He neither seeks nor engages in constitutional idolatry, but a belief that the ideals of liberty and equality imbedded into the document can mold public opinion against [...]]]> Jack M. Balkin’s profound book, Constitutional Redemption, develops an aspirational interpretation of the Constitution. The presentation is not nostalgic; rather, Balkin provides a hopeful picture of an evolving form of constitutional interpretation. His methodology requires the reexamination of existing social morality and political forms but not an abandonment of the Constitution’s commitments to standards and principles of justice.

Balkin’s narrative of redemption speaks of unfulfilled promises made at the nation’s founding. These promises, he argues, should guide reform. Improvement, amendment, and advancement are not merely results of blind flux, but concerted efforts to achieve the “promise[s] of the past.” He neither seeks nor engages in constitutional idolatry, but a belief that the ideals of liberty and equality imbedded into the document can mold public opinion against injustices that violate them.

Such a grand vision is based on faith that the Constitution’s flexible framework will be instrumental to the achievement of social justice. Balkin’s perspective is positioned with the leanings of scholars like Mark Tushnet, , Sanford Levinson, William Eskridge, and Larry Kramer, who regard social and political movements to be important actors for “shifting the boundaries” of what are considered to be reasonable and plausible alternatives to existing inequalities. According to Balkin’s perspective, the effect of civil rights groups on our understanding of the Constitution is reflected in cases like Brown v. Board of Education, Reed v. Reed, and Lawrence v. Texas. These decisions, indeed, bear witness to the ability of litigation groups–like the National Association for the Advancement of Colored People, Women’s Rights Project, and the Lambda Legal Defense and Education Fund–to integrate visionary popular activism into a constitutional framework compelling enough to alter Supreme Court decisionmaking.

I believe that in Balkin’s redemptive vision of constitutional interpretation lies, arguably, the central paradox of American history. The nation was built on the principled foundations of the Declaration of Independence, which recognizes universal inalienable rights like life, liberty and the pursuit of happiness, but from its inception the United States failed to fully carry those ideals into law. The Declaration too, I argue in a forthcoming book, offers the sort of visionary (or in Balkin’s language redemptive) possibilities that drove Abraham Lincoln’s vision of federal government and Martin Luther King, Jr.’s advocacy of reform.

While the founding document spoke in terms of liberal equality, not quite twelve years after the Declaration was signed (on June 21, 1788 when New Hampshire became the ninth sate to adopt the Constitution) the Constitution’s notorious protections of slavery became binding. That is, the Constitution was not merely a step forward in the establishment of binding institutions pregnant with redemptive possibilities but also a document that compromised some of the ideals of the Revolution. Even the ratification of the Reconstruction Amendments did not lead to immediate redemptions of those original ideals. But I believe that Balkin is correct, that the Constitution just as its legal forerunner, the Declaration of Independence, contains the necessary kernels of wisdom that allow for the national and human evolution of understanding about the significance of due process, equal protection, and the pursuit of happiness.

Balkin correctly points out that the many failures to live up to the nation’s ideals do not diminish the value of anti-classist promises the nation made to improve of people’s welfare. His redemptive model helps explain why abolitionists could condemn the nation for its gross failures while clinging to its ideals. The original documents were useful for those who condemned the nation’s existing practices and for those who sought a jubilaic plan for its reform.

A letter published in abolitionist Frederick Douglass’s newspaper, The North Star, mocked the Declaration of Independence’s assertion that “all men are created equal.” The author insisted that the document should be rewritten to say, “All men are created equal; but many are made by their Creator, of baser material, and inferior origin, and are doomed now and forever to the sufferance of certain wrongs–amongst which is Slavery!” To blacks, the writer went on to say, the Fourth of July was “but a mockery and an insult.” To the advocates of slavery, he surmised, “liberty and equality” meant no more than the noises of firecrackers, raised flags, and other raucous festivities. J.D. “The Ever-glorious Fourth”, North Star (Rochester, NY), July 13, 1849.

But there was more to be said about America; it was not merely a composite of its failures but also a set of affective and effective norms. Despite the nation’s failures, the Declaration of Independence committed the country to liberal equality. In this context, an ex-slave’s daughter described her father’s awakening when he heard the Declaration read aloud. From that moment, she wrote, “he resolved that he would be free, and to this early determination, the cause of human freedom is indebted for one of its most effective advocates.” Biography of an American Bondman, by His Daughter 15-16 (1856). Her father, William Wells Brown, successfully escaped in 1834, later to become a prolific novelist and abolitionist lecturer.

The author of Douglass’s paper reflects the failure to live up to the substance of freedom. But Brown’s experience speaks to the possibility of unfulfilled aspiration to inspire and guide individuals, and perhaps even the nation, to liberal equality. This ability to animate hope even in the course of culturally accepted injustice demonstrates the Constitution’s redemptive quality, providing visionary revitalization of existing institutions and leading to social beneficial revision.

Volume 58, Issue 5 (June 2011)

Articles

Comments

It recently occurred to me that there is a connection between the persistent belief of some Americans that President Obama is not a natural born citizen and continuing debates about the Civil War.  Both go to fundamental questions about national identity, citizenship and governance.  Almost a decade ago I wrote a quirky piece entitled Exploring White Resistance to Racial Reconciliation. The article was triggered by what I regarded as a shocking action by Congress, namely, the rejection of a 1997 proposal by a dozen Democrat and Republican congress members calling on Congress to issue [...]]]> Seems I prematurely announced my departure as a guest blogger last week.  Concurring Opinions has kindly asked me to stay on for another month, so here is my first offering for May.

It recently occurred to me that there is a connection between the persistent belief of some Americans that President Obama is not a natural born citizen and continuing debates about the Civil War.  Both go to fundamental questions about national identity, citizenship and governance.  Almost a decade ago I wrote a quirky piece entitled Exploring White Resistance to Racial Reconciliation. The article was triggered by what I regarded as a shocking action by Congress, namely, the rejection of a 1997 proposal by a dozen Democrat and Republican congress members calling on Congress to issue an apology to the descendants of kidnapped West Africans for their enslavement.  In 2008, after it became apparent that then Senator Barack Obama would be the Democrat’s presidential nominee, Congress quietly issued an apology for slavery.  Ironically, President Obama is not descended from West Africans, or to my knowledge, slaves.

In my article I speculated that this proposal was rejected because most Americans remain woefully ignorant about the causes and conflicting political agendas surrounding the Civil War.  This ignorance has been reinforced, I theorized, by popular culture, particularly films like the pernicious Birth of a Nation or Gone with the Wind, that romanticize the “lost cause.”  I offered many proposals, including better education about the Civil War, its causes and effects.

Why, you may ask, am I blogging about “old” news?  Well, a study funded by the Pew Foundation and released last month found that most Americans still consider the Civil War relevant to “American politics and political life.”  As the 150^th anniversary of the War approached, two major newspapers, The Washington Post and The New York Times, featured series or periodic articles about the War.  The Post also hosts a blog, A House Divided, “dedicated to news and issues of importance to Civil War enthusiasts across the country and around the world.”  Even my local paper, The Baltimore Sun, has a series about the War.  Maryland, although a slave-holding border state, saw many battles during the War.  Further, Maryland considers the April 17, 1861 Baltimore Riot, when Union troops passing through the City were attacked by local confederate sympathizers, to be one of the War’s first conflicts.  I celebrate these educational efforts mentioned above because most Americans still do not fully understand the reasons for this war and why it continues to bedevil the Nation.

One of the most factious long-standing debates is over the causes of the War, namely, whether it was fought over slavery or states’ rights.  According to the Pew study, 48% of Americans surveyed think that states’ rights was the main cause of the War, while 34% said slavery was the cause. Documents linked in The Times, and essays by noted historians, acknowledge that states’ rights was an issue, but that the continuation of slavery was a primary triggering cause.   Even the State of Georgia, a former confederate state, finally conceded that slavery was the cause of the War.  Nevertheless, some Americans continue to reject the historical evidence.  For example, Baltimore Sun readers, in response to a columnist’s assertion that slavery was the cause of the Civil War, challenged and vigorously debated each other.  Commentators offer various, mostly benign, explanations for the reluctance to acknowledge slavery’s role in triggering the Civil War.

Still you might say, this too is “old” news that has nothing to do with President Obama, but I urge you to read on. A subtext of my earlier post, The Entitlements Debate: Are Social Compacts Possible in Heterogeneous Countries?, was that some people in this country still cling to, or yearn for, pre-civil war Dred Scott notions of citizenship.  Nothing better exemplifies this notion more than the prolonged debate over whether President Obama was born in the United States.  Even the production of his long-form birth certificate has only slightly diminished the discussion over his right to govern the country.

In other words, the real reason that we continue to disagree about the meaning and significance of the Civil War, goes to the very idea of citizenship – to whom does this country belong, and who has the right to participate in its governance.  I remind my Constitutional Law II students that the 14^th Amendment grant of birthright citizenship was not fully accepted by the states.  For example, in 1867 Maryland rejected the Amendment waiting until 1959 when it, and California, ratified it.  Oregon (1973), Kentucky (1976), New Jersey (2003) and Ohio (2003) waited even longer.  The birthright citizenship guarantee continues to be debated today as more “brown” immigrants have children who are American citizens.

Similarly, despite the 15th Amendment’s guarantee that no citizen should be denied the vote based on “race, color or previous condition of servitude”, voter intimidation of non-white voters continues.  Hostility to this principle is reflected in the fact that Maryland did not ratify the 15^th Amendment until 1973, eight years after the Voting Rights Act.  Kentucky ratified that Amendment in 1976.  The last state to ratified this Amendment was Tennessee in 1997.

The persistent attacks on President Obama’s right to govern, as distinct from his particular policies, are couched in racial code words.  It also is arguable that a woman president might engender similar gender-based attacks.  Long gone are the days when northern European Protestant males governed this Nation by right.  Like the confederate defeat, this too is a lost cause – gone with the wind, but not a loss some Americans feel they can openly bemoan.

For the ministerial exception to apply, the plaintiff in a discrimination suit must be a “ministerial” employee. Who counts as a ministerial employee? That is the question before the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and [...]]]> In my previous blogs, I explained the basics of this judicially-created doctrine, and argued that the ministerial exception can’t really be justified by either the Free Exercise or the Establishment Clause. The main Establishment Clause justification for the ministerial exception is the fear that in adjudicating discrimination claims, courts will become entangled with theological questions or endorse one religious vision over another. In this last post, I want to argue that application of the ministerial exception can entangle a court in religious doctrine more than application of anti-discrimination law.

For the ministerial exception to apply, the plaintiff in a discrimination suit must be a “ministerial” employee. Who counts as a ministerial employee? That is the question before the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: is a teacher at a religious school who mostly teaches secular subjects but also leads students in prayer and teaches a religion class a ministerial employee? Courts do not simply defer to a religious organization’s characterization of a position, as it could insist that all its employees were ministers. Instead, courts have taken a functional approach, looking at the main duties of the employee, and essentially asking whether plaintiff’s job “is important to the spiritual and pastoral mission of the church.”

In order to decide whether a position is “important to the spiritual and pastoral mission of the church,” however, a court might have to delve into the religious beliefs of a particular religion. In ruling that a church’s music director was a minister, for example, the Fourth Circuit analyzed the religious significance of music. The plaintiff argued that she was not a ministerial employee because she merely taught people to sing and perform music. The court disagreed, noting that “music serves a unique function in worship” and concluding that the music director’s job was “an integral part of Catholic worship and belief.” In reaching this determination, the court did exactly what the Establishment Clause forbids: choose between competing religious visions. In the plaintiff’s vision of the Roman Catholic faith, music’s significance did not rise to the level of ministry, such that teaching it made her a minister. In the defendant’s vision, it did. The court essentially resolved a religious dispute about the role of music. Hosanna-Tabor potentially presents a similar risk. In determining whether Perich is a minister or not, the Supreme Court may end up resolving a religious dispute about the role of school teachers in Evangelical Lutheran Church schools.

In contrast, application of anti-discrimination laws like the ADA never requires that kind of direct grappling with religious doctrine or beliefs. Indeed, anti-discrimination cases may present no religious issues at all. To the extent they might, courts need not resolve theological disputes such as what role music or schoolteachers play in the church. Instead, they would be deciding whether a legitimate religious reason or an illegitimate secular reason (discrimination) motivated an employment decision. For example, imagine a church fires a teacher who has an extramarital affair, arguing that she violated the church’s proscription against sex outside marriage. In a sex discrimination case, the issue of whether sex discrimination has occurred depends on whether the school applies the religious policy equally to male and female teachers. The court will not have to resolve any doctrinal dispute or otherwise evaluate the religious merit of the proffered reason: no one questions the school’s religious belief that sex outside of marriage is forbidden. The court need not evaluate the plaintiff’s spirituality because no one disputes she engaged in forbidden conduct. The only question to be decided falls well within the court’s competence: determining whether the plaintiff’s evidence establishes that men and women were treated the same on this issue. In other words, the court judges the credibility of a religious reason, rather than whether something is religiously true. Judging the credibility of a proffered reason is within the court’s role and expertise. Resolving religious questions is not.

Further reading

For a more complete treatment of the ministerial exception, including explanations on why the courts would not delve into doctrinal issues when resolving discrimination claims even when defendant offers a more subjective religious justification for its adverse employment action, please check out my article: Above the Law? The Constitutionality of the Ministerial Exemption from Antidiscrimination Law.

Several other law professors have written interesting blogs about Hosanna-Tabor and the ministerial exception, including: Thomas Berg, Howard Friedman, Marci Hamilton, Rick Garnett, and Chris Lund. Most disagree with me.

Special thanks to Danielle Citron for letting me return to Concurring Opinions!

Does the Free Exercise Clause require the ministerial exception?

The simple answer is: not after Employment Division v. Smith. Employment Division v. Smith held that as long as a law is neutral and generally applicable, it does not violate the Free Exercise Clause even if it imposes a substantial burden on religion. Smith itself upheld a law that made illegal a religious sacrament. Since few would dispute [...]]]> In my previous blog on the ministerial exception, I explained the basics of this judicially-created exception. In this blog, I take a more partisan view, and argue that the religion clauses do not justify the ministerial exception. To the extent that church-clergy relations are protected, they should be protected under the freedom of association guaranteed by the Free Speech Clause.

Does the Free Exercise Clause require the ministerial exception?

The simple answer is: not after Employment Division v. Smith. Employment Division v. Smith held that as long as a law is neutral and generally applicable, it does not violate the Free Exercise Clause even if it imposes a substantial burden on religion. Smith itself upheld a law that made illegal a religious sacrament. Since few would dispute that anti-discrimination laws such as the Americans with Disabilities Act are both neutral and generally applicable, Smith should defeat any free exercise justification.

Nonetheless, lower courts have uniformly argued that Smith only applies to individual free exercise claims and not institutional free exercise claims. The arguments for this distinction are not persuasive, and they can be understood as the lower courts’ attempt to limit the impact of the unpopular Smith decision. For example, courts cite to a line of Supreme Court cases addressing church property disputes as precedent for church autonomy. Yet they overlook the Supreme Court’s most recent church property case, Jones v. Wolf, which actually applies a “neutral principles of law” approach more in line with Smith than the older cases that deferred to church hierarchies.

Doesn’t the potential entanglement with religion mean the Establishment Clause requires the ministerial exception?

The Establishment Clause may be violated if a court were to independently evaluate a minister’s spiritual or theological qualifications. For example, the court would act beyond its competence if it were to hold that a church was wrong to fire a choir director for her choice of music because the music chosen was in fact perfectly suitable for Sunday services. However, it is a mistake to assume that resolving anti-discrimination cases will lead courts to substitute their judgment for that of the religious institution on spiritual and theological matters. To start, many discrimination suits do not present any religious questions. In addition, this fear overlooks a substantial body of anti-discrimination law that ensures that courts assess only matters well within their competence. In other words, when evaluating a claim that a professor was wrongfully denied tenure, courts will consider objective data, but they will not second-guess the employer about subjective professional qualifications.

Take the retaliation claim at issue in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In terminating Cheryl Perich, Hosanna-Tabor cited issues related to her health and its disability leave policy. No mention was made of any spiritual shortcomings. Therefore, as the Sixth Circuit concluded: “a trial would focus on issues such as whether Perich was disabled within the meaning of the ADA, whether Perich opposed a practice that was unlawful under the ADA, and whether Hosanna-Tabor violated the ADA in its treatment of Perich.”

Are churches never immune from anti-discrimination suits?

Even though the religion clauses may not justify the ministerial exception, the freedom of association might shield religious organizations from some anti-discrimination claims brought by ministers. Proponents of the ministerial exception argue that religious organizations must be able to freely select their ministers and religious leaders. The freedom of association protects that choice: especially after Boy Scouts of American v. Dale, the freedom of association protects the right of all associations, religious and nonreligious, to choose leaders who will properly represent and convey the association’s message, even if it means violating anti-discrimination law. In Dale, the Supreme Court allowed the Boy Scouts to discriminate on the basis of sexual orientation on the grounds that gay Scoutmasters would undermine the Boy Scouts’ anti-homosexuality message.

At the same time, Dale makes clear that an association seeking immunity from a discrimination claim must have a message that would in some way be impaired by compliance with that anti-discrimination law. Thus, a church may assert immunity from a minister’s discrimination suit only if it first argues that its religious tenets require that discrimination. Religious organizations whose beliefs are consistent with anti-discrimination law cannot complain that compliance interferes with their expression. Unless Tabor-Hosanna argues that a disabled minister will undermine its religious message, Perich should be able to sue the religious school for violating the American with Disabilities Act.

Volume 58, Issue 3 (February 2011)

Articles

Comments

Angela is a leading scholar on topics of racial justice and critical race theory.  She is the only woman on the shortlist, as well as the only person of color. 

In addition, Angela is a longstanding supporter of LGBT rights who has written eloquently in favor of marriage equality and who signed a brief supporting marriage equality in Varnum v. Brien.

Given the backdrop of the current Iowa vacancies — they are the direct result of a homophobic right-wing smear campaign — I am thrilled to see Angela’s name on the shortlist.  I can think of no better way to respond to [...]]]> Various law blogs have mentioned the news that University of Iowa law professor Angela Onwuachi-Willig is on the short list for the Iowa Supreme Court. 

Angela is a leading scholar on topics of racial justice and critical race theory.  She is the only woman on the shortlist, as well as the only person of color. 

In addition, Angela is a longstanding supporter of LGBT rights who has written eloquently in favor of marriage equality and who signed a brief supporting marriage equality in Varnum v. Brien.

Given the backdrop of the current Iowa vacancies — they are the direct result of a homophobic right-wing smear campaign — I am thrilled to see Angela’s name on the shortlist.  I can think of no better way to respond to the anti-gay hate machine than to fill a court vacancy with a smart, articulate, energetic Black woman who is committed to LGBT rights — and to a principled and progressive feminist and antiracist legal philosophy as well.

This one-day conference will be held at TJSL’s brand-new state-of-the-art building in downtown San Diego, and will feature the annual Ruth Bader Ginsburg Lecture (founded in 2003 with generous support from Justice Ginsburg), by our Keynote Speaker, Interim Associate Dean Stacy Leeds, University of Kansas School of Law, former Justice of the Cherokee Nation Supreme Court and currently chief judge of three Indian Nation tribal courts. Her Lecture will be titled: “Resistance, Resilience, and Reconciliation: Reflections on Native American Women and the Law.”

Leeds will join a remarkable national assemblage [...]]]> It is my pleasure to invite you to Thomas Jefferson School of Law’s upcoming 10th Anniversary Women and the Law Conference, “Gender Justice and Indian Sovereignty: Native American Women and the Law,” on Friday, February 18, 2011.

This one-day conference will be held at TJSL’s brand-new state-of-the-art building in downtown San Diego, and will feature the annual Ruth Bader Ginsburg Lecture (founded in 2003 with generous support from Justice Ginsburg), by our Keynote Speaker, Interim Associate Dean Stacy Leeds, University of Kansas School of Law, former Justice of the Cherokee Nation Supreme Court and currently chief judge of three Indian Nation tribal courts. Her Lecture will be titled: “Resistance, Resilience, and Reconciliation: Reflections on Native American Women and the Law.”

Leeds will join a remarkable national assemblage of about two dozen speakers, all deeply experienced leaders of Indian Nation Tribal courts, governments, business, law practice, and academia. They will address a wide range of issues affecting American Indian women, including gender-related violence and Indian Country law enforcement, development of Tribal courts, governments, and businesses, and the intersection of Native identity, civil rights, sexism, and racism.  The conference will combine nationally known speakers with strong local community involvement, reflected in several speakers who are leaders in San Diego County and Southern California Indian Nation communities.

More information and a registration link may be found at http://www.tjsl.edu/wlc2011. There will be a free shuttle service between the conference hotel, The Handlery (a conference rate is available for rooms there), and the law school.  The full conference program is pasted below.  For further information, you should please feel free to contact the faculty organizer:

Bryan H. Wildenthal
Professor of Law
Thomas Jefferson School of Law
bryanw@gmail.com

I hope to see some of you there!

–

Thomas Jefferson School of Law

10th Anniversary Women and the Law Conference

Friday, February 18, 2011  — 1155 Island Avenue, San Diego, CA 92101

Gender Justice and Indian Sovereignty:

Native American Women and the Law

Sponsored by the TJSL Women and the Law Project

Co-Sponsored by the California Indian Law Association

Program Schedule

8:00-8:30 am: Continental Breakfast (provided) and Social Gathering

Conference registration from 8:00 am to 12:00 noon; CLE available for all panels

8:30-8:40 am: Call to Order and Welcoming Remarks

Bryan H. Wildenthal, Professor, Thomas Jefferson School of Law; Conference Organizer; and
Board Member, California Indian Law Association

Julie A. Greenberg, Professor, Thomas Jefferson School of Law, and Co-Founder, Thomas Jefferson
School of Law Women and the Law Project

Rudy Hasl, Dean and President, Thomas Jefferson School of Law

8:40-9:40 am: Panel 1, Intersectionality and Civil Rights, Part One

This panel will address the intersection of Native, Tribal, and gender identities, including a focus on gender as a factor in Tribal citizenship.

Moderator: Catherine Deane, Reference Librarian, Thomas Jefferson School of Law

Rina Swentzell, Author and Member, Santa Clara Pueblo

Gloria Valencia-Weber, Professor, University of New Mexico School of Law, and Board Member,
Legal Services Corporation

Joanne Willis Newton, Sole Practitioner (San Diego); Judge Pro Tempore, Intertribal Court of
Southern California; Member, Cree Nation of Chisasibi, Québec; and former President,
California Indian Law Association

9:40-9:50 am: Break

9:50-11:00 am: Panel 2, Intersectionality and Civil Rights, Part Two

This panel will address intersections of Native, Tribal, and other identities, focusing more broadly on racial, ethnic, and religious as well as gender identities, and considering ways in which struggles for Indian sovereignty and Native rights have played out within the broader context of civil rights movements and litigations.

Moderator: Kaimipono David Wenger, Assistant Professor, Thomas Jefferson School of Law

Kristen A. Carpenter, Associate Professor, University of Colorado Law School, and Chair,
Federal Bar Association Indian Law Conference, 2010 and 2011

Wenona T. Singel, Assistant Professor and Associate Director, Indigenous Law and Policy Center,
Michigan State University College of Law; Chief Appellate Judge, Grand Traverse Band of
Ottawa and Chippewa Indians; and Justice, Little Traverse Bay Bands of Odawa Indians

Linda Rose Locklear, Professor of Sociology and American Indian Studies, Palomar College

Lawrence R. Baca, Former President, Federal Bar Association (2009-10); U.S. Department of
Justice, Trial Attorney, Civil Rights Division (1976-2004), and Deputy Director, Office of
Tribal Justice (2004-08)

11:00-11:10 am: Break

11:10 am-12:20 pm: Panel 3, Gender-Related Violence and Indian Country Law Enforcement

This panel will address the epidemic of gender-related violence, including domestic violence, faced by many American Indian women, and the related challenges of Indian Country law enforcement, including the roles of Indian Nation governments, Tribal courts, Federal and State authorities, PL-280, and the Tribal Law and Order Act of 2010.

Moderator: Claire Wright, Associate Professor, Thomas Jefferson School of Law

Barbara Creel, Associate Professor, University of New Mexico School of Law

Sarah Deer, Assistant Professor, William Mitchell College of Law

Carole E. Goldberg, Jonathan D. Varat Professor and Faculty Chair, Native Nations Law and Policy
Center, UCLA School of Law; Director, UCLA Joint Degree Program in Law and American
Indian Studies; Justice, Hualapai Court of Appeals; Member, Indian Law and Order
Commission; and former Vice-President and Founding Board Member, California Indian Law
Association

Diane J. Humetewa, Attorney, Squire Sanders Public Advocacy LLC (Phoenix); former U.S.
Attorney, District of Arizona (2007-09); Chief Counsel, U.S. Senate Committee on Indian Affairs;
and Judge Pro Tempore, Hopi Tribal Appellate Court

12:20-1:00 pm: Break, Hot Buffet Lunch (provided), and Open Seating for Lunchtime Keynote Address

1:00-2:30 pm: Ruth Bader Ginsburg Lecture (Keynote Address) and Response (Panel 4)

The Ginsburg Lecture and response panel will address a wide range of issues affecting American Indian women, including gender-related violence and legal remedies, property law, economic development and the law, and the leadership roles of Native women in Indian law and Tribal courts and governments.

Ruth Bader Ginsburg Lecturer: Stacy L. Leeds, Interim Associate Dean, Professor, and Director,
Tribal Law and Government Center, University of Kansas School of Law; Chief Justice, Supreme
Court, Kickapoo Tribe of Oklahoma; Chief Justice, Supreme Court, Kaw Nation; and Chief
Judge, Prairie Band Potawatomi Nation District Court

Resistance, Resilience, and Reconciliation: Reflections on Native American
Women and the Law

Moderator: Marjorie Cohn, Professor, Thomas Jefferson School of Law

Angelique EagleWoman (Wambdi A. WasteWin), Associate Professor and James E. Rogers Fellow
in American Indian Law, University of Idaho College of Law, and Judge Pro Tempore, Coeur
d’Alene Tribal Court

Aliza Organick, Professor, Washburn University School of Law, and Chair, AALS Section on Indian
Nations and Indigenous Peoples

Angela R. Riley, Professor, UCLA School of Law; Director, UCLA American Indian Studies Center;
and Chief Justice, Supreme Court, Citizen Potawatomi Nation of Oklahoma

Rebecca Tsosie, Professor, Willard H. Pedrick Distinguished Research Scholar, and Executive
Director, Indian Legal Program, Arizona State University College of Law; Professor, University
of New Mexico School of Law (from Summer 2011); and Justice, Supreme Court, Fort McDowell
Yavapai Nation

2:30-2:40 pm: Break

2:40-3:40 pm: Panel 5, Building the Future: Indian Country Economic Development

This panel will address Tribal economic development, gaming, and other fields of business, the role of law in facilitating such development, and the leadership roles of American Indian women.

Moderator: Luz Herrera, Assistant Professor, Thomas Jefferson School of Law

Debora G. Juarez, Partner and Chair, Tribal Practice Group, Williams Kastner (Seattle)

Angela M. Medrano, Staff Attorney, California Indian Legal Services; President, Native American
Lawyers Association of San Diego County; former Lead Gaming Commissioner, Cahuilla Band
of Indians Tribal Gaming Agency, and Treasurer and Board Member, California Indian Law
Association

Kate Spilde, Associate Professor, San Diego State University School of Hospitality and Tourism,
and Chair, Sycuan Institute on Tribal Gaming

3:40-3:50 pm: Break

3:50-5:20 pm: Panel 6, Building the Future: Developing Tribal Governments and Courts

This panel will address the development of Tribal courts and judicial systems, as well as executive and legislative functions of Indian Nation governments, with a focus on both California and national perspectives and the leadership roles of American Indian women.

Moderator: Michele Fahley, Deputy General Counsel, Pechanga Band of Mission Indians, and
Board Member, California Indian Law Association

Abby Abinanti, Chief Judge, Yurok Tribe, and Commissioner, San Francisco Superior Court

Meredith D. Drent, Staff Attorney, San Manuel Band of Serrano Mission Indians; Justice, Supreme
Court, Osage Nation; and President, California Indian Law Association

Elizabeth Ann Kronk, Assistant Professor, University of Montana School of Law; Chief Judge,
Appellate Court, Sault Ste. Marie Tribe of Chippewa Indians; and Chair, Federal Bar
Association Indian Law Section

Devon Lee Lomayesva, Executive Director, California Indian Legal Services; Member, Steering
Committee, National Association of Indian Legal Services; Co-Founder and Board Chair,
American Indian Recruitment Programs; and former Tribal Councilmember and In-House Legal
Counsel, Iipay Nation of Santa Ysabel

Jill Elizabeth Tompkins, Clinical Professor and Director, American Indian Law Clinic, University of
Colorado Law School, and Appellate Justice, Mashantucket Pequot Tribal Nation,
Passamaquoddy Tribe, and Pokagon Band of Potawatomi Indians

Christine Williams, Sole Practitioner (Pleasanton, CA); Of Counsel, LaPena Law Corporation;
Chief Judge, Hopland Band of Pomo Indians; Appellate Judge, Northern California Tribal Court
Coalition; Consultant, California Court Appointed Special Advocates Association; Visiting
Professor of American Indian Studies, Mills College; and former President, California Indian
Law Association

5:20-5:30 pm: Closing Remarks

Bryan H. Wildenthal, Professor, Thomas Jefferson School of Law; Conference Organizer; and
Board Member, California Indian Law Association

For instance, digital expressions of hatred helped inspire the 1999 shooting of African-Americans, Asian-Americans, and Jews in suburban Chicago [...]]]> Although intermediaries’ services can facilitate and reinforce a citizenry’s activities, they pose dangers that work to undermine them.  Consider the anonymous and pseudonymous nature of online discourse.  Intermediaries permit individuals to create online identities unconnected to their legal identities.  Freed from a sense of accountability for their online activities, citizens might engage in productive discourse in ways that they might not if directly correlated with their offline identities.  Yet the sense of anonymity breeds destructive behavior as well.  Social science research suggests that people behave aggressively when they believe that they cannot be observed and caught.  Destructive online behavior spills offline, working a fundamental impairment of citizenship.

For instance, digital expressions of hatred helped inspire the 1999 shooting of African-Americans, Asian-Americans, and Jews in suburban Chicago by Benjamin Smith, a member of the white supremacist group World Church of the Creator (WCOTC) that promotes racial holy war.  Just months before the shootings, Smith told documentary filmmaker Beverly Peterson that: “It wasn’t really ‘til I got on the Internet, read some literature of these groups that . . . it really all came together.”  More recently, the Facebook group Kick a Ginger Day urged members to get their “steel toes ready” for a day of attacking individuals with red hair. The site achieved its stated goal: students punched and kicked children with red hair and dozens of Facebook members claimed credit for attacks.

Cyber hate can produce so much psychological damage as to undermine individuals’ ability to engage in public discourse.  For instance, posters on a white supremacist website targeted Bonnie Jouhari, a civil rights advocate and mother of a biracial girl.  They revealed Ms. Jouhari’s home address and her child’s picture.  The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.”  Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose.  Aside from moving four times, Ms. Jouhari and her daughter have withdrawn completely from public life; neither has a driver’s license, a voter registration card or a bank account because they don’t want to create a public record of their whereabouts.

Search engines also ensure the persistence and production of cyber hate that undermines citizens’ capability to engage in offline and online civic engagement.  Because search engines reproduce information cached online, people cannot depend upon time’s passage to alleviate the damage that online postings cause.  Unlike leaflets or signs affixed to trees that would decay or disappear not long after their publication, now search engines index all of the content hosted by social media intermediaries, producing it instantaneously.

Jeremy Waldron contends that cyber hate produces a “permanent disfigurement” of group members.  Online hate mars our social environment by visibly and publicly conveying the message that a “group in the community is not worthy of equal citizenship.”  It denigrates group members’ basic standing in society and deprives them of their “civic dignity.”  Search engines ensure that cyber hate endures, instantly accessible far into the future.

Another distinct feature of the Internet is that it can facilitate “echo chambers” of extreme views.  As Cass Sunstein explored in Republic.com 2.0, people may tailor their online news, only seeking out those who reinforce their views and filtering out contrary information.  This leads to the hardening of positions into more extreme ones.  Sunstein explained that hate groups on the internet are so extreme because they often expose themselves to only to online groups with similar views and link exclusively to hateful content.

Intermediaries should recognize these particular challenges that cyber hate in networked spaces poses to individuals’ capability to participate meaningfully offline and online.  In our upcoming article Intermediaries and Hate Speech: Fostering Digital Citizenship for the Information Age (forthcoming Boston University Law Review 2011), Helen Norton and I invoke a concept of digital citizenship to ensure that intermediaries acknowledge and address these challenges.   In so doing, we do not mean to suggest that individuals are somehow citizens of a virtual space that is unconnected from our territorial polity.  Quite the contrary, we speak of digital citizenship as it relates to individuals rooted firmly in our territorial polity.  Digital citizenship acknowledges that our networked environment can be a blow to territorial polity in ways that intermediaries need to recognize and redress.

There is a current debate concerning whether the standard of college preparedness should be written into the structures of education law.  The college preparedness argument has been rising to the fore due to the revisions to the current version of the Elementary and Secondary Education Act-popularly known as the No Child Left Behind Act (NCLBA)-proposed in the Obama Administration’s “Blue Print for Reform.”  President Obama’s suggested revisions would replace the current NCLBA math, English language arts, and science proficiency standards as a means of evaluating schools with various other measurements, including whether students at schools are being prepared to be “college and career ready.”   The proposed change to the legal federal assessment standard is driven by the administration’s view that post-secondary education is essential [...]]]>

The Pathway of Preparedness

There is a current debate concerning whether the standard of college preparedness should be written into the structures of education law.  The college preparedness argument has been rising to the fore due to the revisions to the current version of the Elementary and Secondary Education Act-popularly known as the No Child Left Behind Act (NCLBA)-proposed in the Obama Administration’s “Blue Print for Reform.”  President Obama’s suggested revisions would replace the current NCLBA math, English language arts, and science proficiency standards as a means of evaluating schools with various other measurements, including whether students at schools are being prepared to be “college and career ready.”   The proposed change to the legal federal assessment standard is driven by the administration’s view that post-secondary education is essential to individual, communal, and national competitiveness in the Twenty-First Century. President Obama has announced the goal of regaining the global lead in the proportion of the citizenry obtaining post-secondary degrees by 2020.  In the realm of education, law is increasingly being relied upon to create incentives, structures and values which have traditionally been thought to be in the realm of private production.  The traditional conception of the public school is properly being recast from a provider of information and skill, to the central institution in communal renewal.

However, the federal focus on college preparedness, as with many educational initiatives of the Obama administration, has received criticism.  Critics of this emphasis argue that college preparedness is a one size fits all category which will inevitably stigmatize students without the ability or proclivity to attend college, and thus contribute to greater levels of failure and higher school drop out rates due to psychological pressures.   Such critics contend that there are many solid middle class trade careers of value which can be viable options for students without the skill level or desire for college.   However, defenders of college preparedness are often concerned with a specific context-the inadequacy of our educational systems to address the needs of dis-empowered minority groups, especially in the urban context. College preparedness champions often believe that critics do not fully understand and/or acknowledge the causation of the extreme racial disparities in educational outcomes.

The debate over college preparedness can be seen as one iteration of the continuing philosophical divide between those who tout the importance of “high expectations” and incentives for greater minority education performance, and those who voice concern that such high expectations do not sufficiently account for the context and communal challenges of under-performing minority groups.   Critics of the “high expectations” movement, however, misapprehend the cultural and psychological impact of persistent high expectations college preparedness messaging for the following reasons:

1) The argument that such messaging will create stigmatizing inferiority complexes and lead to students dropping out of school is dubious.  The same argument is often made concerning standardized assessment.  Yet the national graduate rate for blacks and Latinos is near 50%, and has been appallingly low long before college preparedness became a hot catchphrase, and before the growth of the high stakes testing movement in the 1990′s.

2)  There is a plethora of research indicating that resilience is one of the strongest factors leading to the avoidance of high risk behavior in youth, and allowing for long term educational success.  High expectations critics are concerned about the stigmatic implications and stress caused by challenging standards.  But the high expectations camp views the life of most low-income minority students as endemically filled with daily disappointment, hardship and set-back, and believes that with the proper educational support, structure and expectations, minority youth can overcome and build skills to deal with the disappointment which is an inevitable aspect of living in the lower segments of an inequitable society.

Moreover, those critical of college preparedness standards and the “high expectations” movement perhaps too easily divide the challenges of the inequalities of the black and Latino educational landscape into those who make it, and those who are at great risk of criminal involvement, incarceration, high school drop-out, and other indicators of extreme and overt societal exclusion.  However, unfortunately, the injustice of educational inequities persists throughout all realms of society.  For example, analysis of National Assessment of Educational Progress (NAEP) skills diagnostic exams reveals discrepancies of foundational educational academic ability between blacks and Latinos on one hand, and whites and Asians on the other, even when factors such as class and family structure are controlled.   Thus, to support a high expectations college preparedness standard is not to espouse an unreasonably elitist doctrine, but is, to the contrary, to recognize that our society has accepted different and lower standards for blacks and Latinos.  Thus, while four year college graduation rates for Asians and and whites  remain around 70%, similar graduation rates for black and Latinos remain around 40%.  And to use a professional example which serves as a pipeline for leadership, the proportional law school enrollment of blacks and most Latino groups has been lowering over the past 15 years, and blacks make up only 4% and Latino’s 3% of the United State Bar, while blacks constitute 12% and Latino’s 15% of the general population.

Although black and Latino post-secondary enrollment has recently been rising, almost all of such matriculation increase has been in community colleges and for-profit trade colleges and universities.  In this regard President Obama’s proposed “college and career ready” legal standard may be dangerously malleable.  The President envisions community colleges as contributing greatly to the increase in college degrees and as an important aspect of building greater opportunity in dis-empowered minority communities.  Thus, the President has recently hosted the White House Summit on Community Colleges to build momentum for this idea.  Yet, community colleges only graduate 20% of all those who matriculate, and the average community college graduate earns only a few more thousand dollars per year than the average high school graduate.   And the greatest growth in minority post secondary enrollment has been in for-profit colleges.  Yet, for-profit education companies such as Kaplan, The University of Phoenix, DeVry, and Corinthian Colleges are becoming increasingly known for operating educational institutions which produce degrees which are unable to pay for the debt accrued for such degrees.  Moreover, Congress, The Department of Education, and the Government Accountability Office have greatly increased scrutiny of such institutions due to increasing evidence that they specifically target high-risk minorities in order to benefit from the federal financial aid that such minorities receive once enrolled.  Community colleges and for-profit universities have become low-standard dumping grounds in which black and Latino students are funnelled for educational services that are not preparing them to compete.

This is not to say that there is no need for post-secondary education outside of the four year context.  Education law certainly must account for a wide variety of skill level, and the need for, and importance of, a technically trained workforce.  However, the adoption of “college and career ready” standards must create clear incentives and accountability for all schools to prepare an adequate number of their graduates to compete at four year colleges.   Our society has accepted, tolerated, and perpetuated lower standards for blacks and Latinos, and those serving blacks and Latinos, in all levels of education.  Education law and reform is increasingly recognizing the dangers of such low standards, and is attempting to create structures through competition, incentive and accountability to raise such standards.  Increasingly schools, colleges and universities are being positioned as the central institutions for rebuilding community and achieving greater societal equality.  As this trend continues, the law must ensure that such standards are sufficiently high to create competitive opportunity for those from dis-empowered minority groups.

“Given the absence of a sufficient police presence in order to stop the looters, I strongly agree with Glenn Reynolds that such looters should be shot on sight by armed citizens. A citizen’s arrest and detention isn’t possible as a practical matter. Shooting the New Orleans looters is, under present circumstances, an appropriate response to the collapse of civic order, and a first step towards the restoration of that order.”

The necessity of shooting looters was widely-discussed.  Kerr, Solove, Volokh, Muller and I all dissented.  It’s worthwhile, then, to read this article looking back five years later [...]]]> Remember when post-Katrina New Orleans turned into a teaching moment about the importance of using guns to protect yourself?  Over at the VC, David Kopel wrote (on September 5, 2005)

“Given the absence of a sufficient police presence in order to stop the looters, I strongly agree with Glenn Reynolds that such looters should be shot on sight by armed citizens. A citizen’s arrest and detention isn’t possible as a practical matter. Shooting the New Orleans looters is, under present circumstances, an appropriate response to the collapse of civic order, and a first step towards the restoration of that order.”

The necessity of shooting looters was widely-discussed.  Kerr, Solove, Volokh, Muller and I all dissented.  It’s worthwhile, then, to read this article looking back five years later at what actually happened after the hurricane:

“The narrative of those early, chaotic days — built largely on half-baked anecdote and unfounded rumor — quickly hardened into a kind of ugly consensus: poor blacks and looters were murdering innocents and terrorizing whoever crossed their path in the dark, unprotected city.

“As you look back on it, at the time it was being reported, it looked like the city was under siege,” said Russel L. Honoré, the retired Army lieutenant general who led military relief efforts after the storm.

Today, a clearer picture of post-Katrina violence is emerging, and it is an equally ugly one, including white vigilante violence, police killings, official cover-ups and a suffering population far more brutalized than many were willing to believe. Several police officers and a white man accused of racially motivated violence have recently been indicted in various cases, and more incidents are coming to light as the Justice Department has started several investigations into poststorm civil rights violations . . .

“One case is that of a former Algiers resident, Ronald J. Bourgeois Jr., who is white and accused of being part of one of the vigilante groups. He was recently indicted by the federal government on civil rights charges in the shooting of three black men who were trying to leave the city. According to the indictment, Mr. Bourgeois, who now lives in Mississippi, warned one neighbor that “anything coming up this street darker than a brown paper bag is getting shot.””

I don’t mean to blame any of the bloggers (like Glenn Reynolds or David Kopel) who called for looters to be shot on sight.  Obviously, they were writing about the facts as they knew them.  But the retrospective story is a sobering reminder that unleashing private violence – and encouraging armed self-help – doesn’t necessarily lead to the restoration of civic order.  It may, as it turns out, result in biased, erroneous, decision making and awful tragedy.

Loic Wacquant’s Punishing the Poor: The Neoliberal Government of Social Insecurity proposes that the “hyperinflation” of the US prison population results from a change in the state’s focus: from promoting economic [...]]]> Many legal scholars wonder why even small steps toward sentencing reform are tough to make. The US has an extraordinary level of incarceration; “with about 1.6 million people in our penitentiaries and an additional 800,000 in our jails, the United States locks up its citizens at a higher rate than any other country in the world.” Are we simply worse people, or are there larger causes at work? I recently noticed two books that help frame the issue of US criminal justice in a larger context of economic change and inequality.

Loic Wacquant’s Punishing the Poor: The Neoliberal Government of Social Insecurity proposes that the “hyperinflation” of the US prison population results from a change in the state’s focus: from promoting economic security to promoting physical safety via a “zero tolerance” policy for even nonviolent offenses. As one reviewer explains,

The penal state, in Wacquant’s telling, has mushroomed up to take the place of the welfare regime, to control those populations at the margins of the market economy. In their classic book Regulating the Poor (1971), sociologists Frances Fox Piven and Richard Cloward argue that welfare rolls fluctuate in response to social unrest, swelling when the poor become politically aware and more difficult to pacify. Wacquant takes their claim a step further, suggesting that in a neoliberal age, poor people are not bought off—they are locked up.

According to Wacquant, media and law enforcement elites team up to “erect[] a garish theater of civic morality on whose stage political elites can orchestrate the public vituperation of deviant figures. . . .and close the legitimacy deficit they suffer when they discard the established government mission of social and economic protection.” Like the “security theater” lambasted by some anti-terrorism experts, the penal system explored by Wacquant is “about” far more than its stated purpose of keeping good citizens safe. Rather, it becomes what Wacquant calls “autophagous,” provoking a self-renewing cycle of recidivism, widening insecurity, and ever more crackdowns, by virtue of its very brutality. The book reminded me of Niklas Luhmann‘s social theory of “autopoetic systems,” which constitute and reconstitute themselves according to an inner logic that may have little to do with the overall health or welfare of society.

I was reminded of Wacquant’s book when I heard an extraordinary C-Span lecture by Robert Perkinson, the author of Texas Tough: The Rise of America’s Prison Empire. I’ve previously speculated on why Texas is such a darling of the Wall St. Journal editorial page, and Perkinson’s book helps piece together more clues on the state’s role in modeling penitentiary policies for the nation. Like Wacquant, Perkinson focuses on the role of race and inequality in explaining prison demographics:

More than half a century ago, at the height of Jim Crow, African Americans were going to prison at roughly four times the rate of whites; now the black imprisonment rate is seven times that of whites. If present trends continue, a third of all black men can expect to go to prison at some point in their lives. Millions more, due to felony disenfranchisement, will lose the right to vote, one of the dearest prizes of the black freedom struggle. My book, Texas Tough, is an attempt to reckon with . . . the bleak reality of persistent prejudice and unequal justice. . . . [T]he book homes in on the entwined histories of racism and the law, uncovering the origins of America’s exceptionally harsh approach to criminal justice in the broken promises and iniquitous profits of the young republic.

Texas Tough . . . relates the troubled life story of a single southern prison system, one that started out with the construction of a pine-log barracks in 1842 and that has grown into the largest, harshest incarceration complex in the United States. It describes how a plantation-based penal system, long dismissed as a brutish backwater, managed to become a pacesetter in hardline prison management; how a retributive ethos of criminal justice that developed on slavery’s frontier eventually took hold nationwide. . . . In short, it explains how the land of the free became the most incarcerated society in the history of democratic governance.

Perkinson describes the remarkable role of slave and quasi-slave labor in Texas; as I recall from his lecture, the state capitol building was first built with slave labor, and then after it was burned down during the Civil War, it was re-built with “leased convicts.” Apparently there are also farms in Texas with crops which have never been picked with “free labor;” they transitioned from slave plantations to leased convicts to prison labor. Both facts haunted me as I recently visited UT Austin for a health law conference, with the capitol building often in sight.

Both Wacquant’s and Perkinson’s book focus on how one system of punishment can rapidly become a “model.” For Perkinson, Texas displaced more humane models of rehabilitation to become a model of “getting tough” on prisoners. Wacquant worries that the resulting US system of punishment has become a model for the EU, providing parties of the right with a new model for social order that parties of the left feel powerless to critique or resist. Both authors’ theories of “contagion” reminded me of two recent works; Spencer Waller’s The Law and Economics Virus and Joe White’s treatment of stories in his work on health care finance. Building on models of memes from Dawkins and Balkin, Waller shows how certain fields are uniquely susceptible to legal economic modeling, and others have inherent structural features that resist it. Joe White shows how “herd behavior” can follow mass adoption of certain stories about efficiency and effectiveness, often in the absence of compelling information about their results:

The most striking aspect of the accounts of market behavior in health care in the 1990s is that activity appears to have been influenced by shared stories, which rose, fell, and were changed in the health policy and business communities. . . . The free flow of capital did not serve health care values such as cost control and access. . . . Behavior followed stories that in significant cases turned out to be untrue. The health care herd stampeded in one direction and then another.

The prison policy stampede appears to only be going in one direction, but may end up no more effective than the managed care merry-go-round of the 1990s (except, of course, for producing profits). My sense is that anyone who opposes prison reform will have to reckon with Wacquant’s and Perkinson’s arguments.

The [...]]]> Quick question: How many states had slave laws, at any point from 1776 independence to 1865? Think about it, and then click the link to continue.
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So, I’m putting some resources together for an article, and I assembled this map today. It is, I believe, an accurate representation of states that permitted slavery under state law (or under territory law, if they were territories in 1865) at any point between 1776 and 1865. It also tracks states which did not have any laws allowing slavery, but which have records of slaves being owned in that state.

The list, as I’ve assembled it:

States with slave ordinances: Virginia, North Carolina, South Carolina, Georgia, Alabama, Mississippi, Louisiana, Arkansas, Florida, Texas, Tennessee, Kentucky, West Virginia, Missouri, Delaware, Maryland, District of Columbia, New Jersey, Connecticut, New York, Pennsylvania, Massachusetts, Rhode Island, New Hampshire, territory of Utah, territory of New Mexico (New Mexico and Arizona).

States without slave ordinances at any point before 1865 (however those marked with * have records of some slave ownership in that state): Ohio,* Indiana,* Illinois,* Iowa,* Kansas,* Nebraska, Wisconsin,* Michigan, Minnesota, California, Oregon. (Kansas did have attempted slave laws put in place which were invalidated, during the Bleeding Kansas time period.)

Special cases:

-Maine was a slave state as part of Massachusetts prior to 1783 and Maine residents owned slaves. However Maine’s 1820 admission as a state was as a free state.
-Nevada was originally part of Utah territory which had elected slave status under popular sovereignty, but later established itself as a free territory and then state
-Vermont was part of New York briefly, but broke away in 1777 and was recognized in 1791, and did not allow slavery in its constitution.

This map and list is still a work in progress. (I haven’t yet figured out Montana and Wyoming, for instance, which were part of Nebraska territory for a while, but I’m not sure if there was slave ownership in those particular parts of Nebraska at the time, and then they became part of Dakota.)

I welcome any feedback.

A number of right wing critics have recently claimed that President Obama is seeking reparations. This includes Glenn Beck and Rush Limbaugh who have both repeatedly called health care reform a form of stealth reparations. The apparent reasoning is that health care reform will proportionately benefit Blacks as a group more than whites, because Blacks [...]]]> Henry Louis Gates writes in the New York Times that reparations discussion should include a focus on culpability of Black slave traders in Africa – a move which ultimately serves to weaken many reparations arguments. Why is the President’s advisor making these kinds of arguments — and why now? I can’t say for sure, but I suspect that it relates to the existing political environment.

A number of right wing critics have recently claimed that President Obama is seeking reparations. This includes Glenn Beck and Rush Limbaugh who have both repeatedly called health care reform a form of stealth reparations. The apparent reasoning is that health care reform will proportionately benefit Blacks as a group more than whites, because Blacks have a higher rate of uninsured individuals.

The underlying insurance statistics are clear enough — Black individuals lacking insurance make up about 19% of the group population, while the comparable percent for whites is about 10%. In fact a number of advocates (including me) have argued that this and other major statistical gaps are reasons to support reparations, because they show how slavery and Jim Crow inflict continuing harm today.

Beck and Limbaugh have flipped the argument around. Not only do they argue that reparations would be uncalled for, but they further argue that programs like health care reform which would have the effect of lessening some existing egregious racial gaps should all be treated as stealth reparations. This is not just a Wechsler-esque claim about facially neutral laws; rather it’s the much more outrageous claim that we should lock in place the current racial status quo with its many racialized injustices, and that any attempt to move from the status quo is stealth reparations.

Why does the reparations label matter? Polls show massive, overwhelming white opposition to reparations. Al Brophy summarizes poll findings in Reparations Pro & Con, and they are striking. Overall national support for reparations is between 10% and 15% depending on the poll, but poll results are incredibly racially polarized. While reparations are supported by 2/3 of Blacks in many polls, they are supported by less than 5% of whites — it’s the most racially divisive issue in polling history.

Because reparations is so anathema to whites (even most white progressives), the topic becomes a political third rail. When Limbaugh or Beck characterize health care as “stealth reparations,” it’s an attempt to tap into the huge pool of white disapproval of The R Word, and as such is a deliberate attack on Obama’s moderate-progressive multiracial coalition. And like Clinton’s denunciation of Sister Souljah, Obama and Gates are protecting the middle. He knows he can’t alienate white progressives, because he can’t win with just the Black vote. And Blacks will always be around, but centrist whites are fickle, they’re the Justice O’Connor of the electorate ready to switch sides at any time. So Gates’ article distances Obama from The scary R Word, and in doing so protects the center.

Which is not really unexpected, given the current political climate.