“Judging The Supreme Court”: A Disturbing Picture, The Court Is Guilty Of Failing To Adequately Enforce The Constitution
After 227 years of history, how should we judge the United States Supreme Court? All of my years of studying, teaching, and practicing Constitutional law have convinced me that the Supreme Court has rarely lived up to lofty expectations and far more often has upheld discrimination and even egregious violations of basic liberties.
My disappointment in the Court is historical and contemporary. Its preeminent task is to enforce the Constitution in the face of majorities that would violate it. The Court is thus especially important in protecting minorities and in safeguarding rights in times of crisis when passions cause society to lose sight of its long-term values.
For the first 78 years of American history until the ratification of the 13th Amendment in 1865, the Court enforced the institution of slavery. For 58 years, from 1896 until 1954, the Court embraced the noxious doctrine of separate but equal and approved Jim Crow laws that segregated every aspect of Southern life. Nor are egregious mistakes by the Supreme Court on race a thing of the past. The Roberts Court has furthered racial inequality by striking down efforts of school boards to desegregate schools and by declaring unconstitutional crucial provisions of the landmark Voting Rights Act of 1965.
The Court also has continually failed to stand up to majoritarian pressures in times of crisis. During World War I, individuals were imprisoned for speech that criticized the draft and the war without the slightest evidence that the expression had any adverse effect on military recruitment or the war effort. During World War II, 110,000 Japanese-Americans were uprooted from their lifelong homes and placed in what President Franklin Roosevelt referred to as “concentration camps.”
During the McCarthy era, people were imprisoned simply for teaching works by Marx and Engels, and Lenin. In all of these instances, the Court failed to enforce the Constitution. Most recently, the Roberts Court held that individuals could be criminally punished for advising foreign organizations, designated by the United States government as terrorist organizations, as to how to use the United Nations for peaceful resolution of their disputes or how to receive humanitarian assistance.
For almost 40 years, from the 1890s until 1937, the Court declared unconstitutional more than 200 federal, state, and local laws that were designed to protect workers and consumers. The Court even declared unconstitutional the first federal law designed to prevent child labor by prohibiting the shipment in interstate commerce of goods made by child labor. Minimum-wage and maximum-hour laws were frequently invalidated.
Even the areas of the Supreme Court’s triumphs, like Brown v. Board of Education and Gideon v. Wainwright, accomplished less than it might seem. American public schools remain racially separate and terribly unequal. Criminal defendants in so many parts of the country, including in death-penalty cases, have grossly inadequate lawyers.
The Court’s decisions from the last few years — preventing employment discrimination suits and class actions against large corporations, keeping those injured by misconduct of generic drug makers from having any recovery, denying remedies to those unjustly convicted and detained — illustrate what has historically been true: The Court is far more likely to rule in favor of corporations than workers or consumers; it is far more likely to uphold abuses of government power than to stop them.
What should we do about it?
Some scholars urge the abandonment of judicial review, but I reject that conclusion. The limits of the Constitution are meaningful only if there are courts to enforce them. For those I have represented over my career — prisoners, criminal defendants, homeless individuals, a Guantánamo detainee — it is the courts or nothing.
But I believe that there are many reforms that can make the Court better and, taken together, make it less likely that it will so badly fail in the future. I propose a host of changes, including instituting merit selection of court justices, creating a more meaningful confirmation process, establishing term limits for court justices, changing the Court’s communications (that is, televising its proceedings), and applying ethics rules to the court justices.
The Supreme Court’s decisions affect each of us, often in the most important and intimate aspects of our lives. I think that we need to focus on the Court’s long-term and historical performance. If we do, it is a disturbing picture and there is only one possible verdict: The Court is guilty of failing to adequately enforce the Constitution.
But it can and must get better in the years and decades ahead.
By: Ewin Chemerinsky; The National Memo, January 5, 2014; Originally Posted at The Washington Spectator
“Servants Are Not Like Us”: Ferguson, Immigration, And ‘Us Vs Them’
In his brilliant book At Home: A Short History of Private Life, Bill Bryson describes the relationship between servants in mid-19th-century England and their masters/employers: “Perhaps the hardest part of the job was simply being attached to and dependent on people who didn’t think much of you….Servants constituted a class of humans whose existences were fundamentally devoted to making certain that another class of humans would find everything they desired within arm’s reach more or less the moment it occurred to them to desire it.” Poet Edna St. Vincent Millay, once poor herself, noted, “The only people I really hate are servants. They are not really human beings at all.”
It strikes me that many reactions we’ve seen to the events in Ferguson, Missouri, and President Obama’s recent executive action on Immigration are bound by a common attitude: ignorance, disregard, and dehumanization by a white majority of an underclass of people of color. The Caucasian (and rapidly shrinking) majority in America is largely ignorant of the lives led by African Americans and undocumented Hispanics. There seems to be a proactive disregard for knowing or caring about their lives and plight. And this ignorance and disregard are enabled through a dehumanizing of both groups—not overtly, of course (we at least know how not to sound racist)—and an attitude that all too often is in agreement with Millay’s sentiment that “they are not really human beings at all.”
Humankind has a really bad track record with those who are regarded as “other” by the majority. Perhaps the attitudes toward and treatment of those considered to be “other” have their roots in prehistory. When competing tribes of homo sapiens encountered one another, there was often survival payoff in regarding the opposing tribe as being utterly “other,” not like “us,” and to be resisted at all costs. Such sentiment is at the heart of every war.
There may even be a physiological basis to our apprehension about the “other.” After all, our bodies are hard wired to recognize the difference between “me” and “not me.” That is what allows us to recognize bacteria and other foreign matter in our bodies and answer with an aggressive immune system response which attacks and rids the body of these threats to our well-being.
The problem, of course, is that the “me vs. not me” response can serve us poorly in the more social sense. When we assign a primitive “not me” status to another individual or social group, it can—and does—take us down a destructive path. Taken to its logical conclusion, the “not me” judgment can lead us to regard other human beings as not human at all! And that is where the trouble really begins.
The disdain that masters once showed for their servants is today more apt to be played out systemically on a classification or group of people, rather than on individuals. “They” are not like “us.” I can remember during the Vietnam War, it was fairly common to hear Americans say about the Vietnamese (and Asians in general): “they just don’t value human life the way we do.” In other words, while we value our soldiers and remember that each one of them is a husband/son/father, the same humanity doesn’t apply to our enemies.
Broad generalizations are made about African-Americans, born out of attitudes from the days when slavery treated them as non-human chattel to be bought and sold, and Jim Crow laws perpetuated their status as underlings. Immigrants from Central America are characterized as brazen gold diggers who come here to “drop” their babies on American society and its social safety net.
Today’s hot debate about the fate of millions of undocumented people in America, most from countries to the south, belies a similar dehumanization. Opposition to the President’s executive order, and the resistance to dealing with immigration legislatively, both involve an inherent “they’re not like us” attitude. And yet, the yearning for a better life for oneself and one’s children—the overwhelming explanation given for coming north—is a sentiment known to every human being and family on earth. Yet, many do not find in this shared, human yearning a reason to regard immigrants as “like us” rather than “not like us.”
Oddly enough, many who hold this “not like us” attitude are religious people. And yet, a central teaching of the Abrahamic faiths—Judaism, Christianity, and Islam—is that all human beings are children of God, equal in value and worth to God. Isn’t it strange that religious people would embrace a “not like us” stance toward people of color, in direct and overt opposition to the teaching of their religions, all the while claiming to be faithful adherents?
Religion could—and should—be part of the solution here, rather than part of the problem. Significantly, many churches are actively and aggressively advocating for the justice and compassion for those in our midst who are undocumented. Some churches are serving as “sanctuary” for those fleeing injustice—an encouraging return to a time when church buildings were “safe houses” for those fleeing unjust treatment by the authorities.
It is significant that President Obama alluded to scripture in making his case for better treatment for the undocumented in his executive action. In his address, the President noted, “We were strangers once, too.” Throughout the Hebrew Scriptures of the Old Testament, Jews are reminded that they too were once treated as strangers and “the other,” enslaved by Egypt, and in return must welcome the stranger and treat them with compassion and respect. And with the exception of Native Americans, all of us here in the United States came here as immigrants, as the President reminded us (making the case for “us” over “not like us”).
The outraged reaction all across America to the non-indictment of Officer Darren Wilson in the shooting of Michael Brown is an appropriate response to being treated as “other,” and “not really human beings at all.” That kind of treatment leads to rage—at first, quietly borne internally, and eventually erupting in an outward expression of sheer “out-rage”; that is, an outward expression of the rage within the victim of such treatment.
White America would do well to focus not on the burning of a couple of cars and vandalism (no one is excusing such behavior), but on the reasons such rage is felt in the first place. This has long stopped being primarily about the death of an unarmed young black man in St. Louis. It is about the victimization of an entire group of people at the hands of a white majority who views them as “other” and “not really human beings at all” in a country that has broken its promise of “liberty and justice for all.”
The secret to solving our immigration “problem,” as well as the “problems” posed by race in Ferguson and all across America, begins with overcoming our tendency to extrapolate from our obvious differences to a broader, more dangerous, “not like me” attitude that borders on complete dehumanization. Our wariness of difference and diversity all too often leads us into “not like me” thinking. Instead, we need to focus on the reality that although almost everyone is different from me in some respects, we remain far more alike than different.
At the end of the day, this is not “us versus them.” Because there is no “them.” Only “us.”
By: The Rt. Rev. V. Gene Robinson is a Senior Fellow at the Center for American Progress, Washington, DC; The Daily Beast, November 27, 2014
“The Parties Of No”: Then And Now, Dire Consequences For The Nation’s Poorest Citizens
In 1874, Republicans suffered one of the greatest electoral reversals in American history, losing 170 seats and their commanding House majority to the Democratic opposition. Although not apparent at first blush, the recent Republican victory has a great deal in common with this Democratic landslide 140 years earlier. And if history is any guide, the upcoming Congressional realignment will again have dire consequences for the nation’s poorest citizens.
Although the conservatives of the post-Civil War era went under the banner of the Democratic Party, their policies and strategies were similar to today’s Republicans. Both exploited ailing economies and unpopular administrations in the White House to advance their programs of obstruction and fiscal retrenchment.
Above all else, what unites 19th-century Democrats and 21st-century Republicans is their dogged opposition to federal spending, especially on social services for the nation’s neediest. Today’s Party of No has attempted to block the Obama administration on a number of these measures — from food stamps and welfare to unemployment benefits and health care — even at the risk of a national credit default.
Yet long before today’s Republicans made obstruction their raison d’etre, Gilded Age Democrats turned “No” into a political rallying cry, and, in the process, rolled back some of the era’s most important social reforms.
One of their first targets was the Freedmen’s Bureau, a federal agency established in 1865 to aid the nation’s recently emancipated slaves. In providing rations, medical care, education and employment opportunities to freed African Americans, the Bureau was one of the great progressive institutions of the era, despite a chronic shortage in funding.
Democrats, however, protested vigorously with arguments that, to this day, remain central to the conservative critique of federal intervention on behalf of blacks. Nineteenth-century Democrats stressed that self-help, not dependence on the federal government, was the only path forward for African Americans, and that such so-called charity would injure the “character” and “prospects” of a newly emancipated class of citizens. They insisted that public spending on a single group was not only unfair, but financially unsustainable as well. One newspaper captured several of these concerns by dubbing the Bureau a “department of pauperism.” In 1872 Congress abruptly shut down the Bureau, and with that, millions of freed slaves lost one of their only allies in the struggle against violent racism in the South.
One hundred and forty years has done relatively little to shift the conservative position on taxation. Reducing the tax burden on the rich is a Republican mainstay, even as income inequality soars to Gilded Age-esque extremes. Meanwhile, Tea Party-affiliated politicians like Ted Cruz promote a flat tax, which would put disproportionately greater strain on lower earners.
Although they lacked the Reaganite vocabulary of trickle-down economics, 19th-century conservatives similarly pushed for lowering taxes on the rich. After the Civil War, Southern conservatives shifted the burden onto the poorest citizens, namely freed slaves. Whereas taxes on landed property were astonishingly low (.1 percent in Mississippi, for example), blacks often had to pay poll or “head” taxes that could amount to a substantial portion of their yearly income. The result was a system in which wealthy landholders could end up paying less overall in taxes than the hired hands who worked their land.
On the issue of voting rights, today’s Republicans have more in common with Gilded Age Democrats than any current political party should. As many have pointed out, the voter ID laws backed by Republican policymakers disproportionately affect poor people, minorities, and college students, key constituents in the Democratic base. Conservative efforts in this regard may not mark the return of Jim Crow, as some have suggested, but they certainly undermine key provisions of the Voting Rights Act of 1965.
Like today’s Republicans, yesterday’s Democrats recognized the electoral gains to be made in keeping certain voters from the polls. Thus they waged a national campaign against black male voting rights, which had been secured in 1870 by the 15th Amendment. In particular, they exploited the Amendment’s vagueness by introducing literacy, property and educational tests to severely limit black suffrage and thereby inaugurate the age of Jim Crow by the turn of the century.
To be clear, Republicans today differ from their conservative predecessors in certain crucial respects. No serious Republican leaders currently advocate the systematic disfranchisement of an entire race, nor would they condone the sort of racial violence that conservatives deployed in post-Civil War America.
Nonetheless, the parallels are disconcerting. Once again a bitter American electorate has empowered a party without an apparent political vision beyond repeals and rollbacks. And once again that party pursues the regressive goal of lowering taxes on the rich while dismantling federal programs for the poor.
When Americans gave up on the possibility of progressive reform in the 1870s, they ushered in an age of rapidly growing racial and economic inequality. We can only hope the repercussions won’t be so serious this time around.
By: Kevin Waite, PhD candidate in American History, University of Pennsylvania; The Huffington Post Blog, November 17, 2014
“Imagine; The Democratic States Of America”: Is It Finally Time For Us Northeners To Encourage The South To Go Its Own Way?
I have a confession to make: I’m prejudiced against the South. You might even call me an anti-Southern bigot.
I’m not proud of it. It’s just a fact. I grew up a liberal, secular Jew in New York City and southern Connecticut — a Yankee through and through. The thought of “my” America being yoked together with a region that fought a bloody, traitorous war to defend the institution of slavery and a way of life based upon it — well, it just felt morally grotesque. That this same region persisted in de jure racism (backed up by brutal violence) right up through the decade prior to my birth in 1969 only made it more galling.
I became more conservative in my 20s. But it was the conservatism of the urbane, formerly left-liberal, mostly Jewish neocons, which is (or at least used to be) the furthest thing from the Southern, populist wing of the Republican Party that, in our time, sets the tone and agenda for the party as a whole. And as I’ve moved a few clicks back in the direction of my youthful liberalism over the past decade and become an unapologetic anti-Republican, my distaste for the South hasn’t diminished.
That’s why I get a little kick out of it any time I hear someone make an argument in favor of Southern secession — whether it’s a Southerner who wants to get the hell out of Obama’s godless Euro-socialist dystopia or a Northern liberal wishing the yokels would do exactly that.
Sure, Lincoln was willing to sacrifice vast quantities of blood and treasure to keep the South from bolting for the exits. But that was eons ago. And some days — like today, less than a week from the likely seizure of the Senate by the Southern-dominated GOP — I find myself wishing the South would make another go of it.
Today, the Democrats control the Senate by a margin of 53 to 45. Two senators, Bernie Sanders of Vermont and Angus King of Maine, call themselves independents but caucus with the Democrats, bringing their effective total up to 55 seats. The House of Representatives, meanwhile, is held by the Republican Party by a margin of 233-199.
But without the 11 states of the Confederacy? Whoa boy. By my calculations, Democrats (with Sanders and King) would control the Senate by a wildly lopsided margin of 49 to 29 seats. And the House — entrenched power-base of the post-Gingrich GOP backed up by jimmy-rigged gerrymandering? Without the South, Democrats would hold the House easily, 160-135.
Then there’s the White House, where even with the South the Democrats hold an electoral edge rooted in ideology and demographics. If the 2012 election had been held in a post-secession America, Barack Obama’s 332-206 Electoral College romp would have become a monumental wipeout of 290-88. As for 2004, it would have gone from a relatively narrow win (286-251) for George W. Bush to a John Kerry landslide of 251-133.
Without the South, the country could very well be renamed the Democratic States of America.
Secession would have numerous policy implications. The deficit would likely shrink, since despite the South’s fondness for anti-government rhetoric and ideology, the region benefits substantially more from federal programs than it pays into the federal treasury. Serious gun control legislation might actually make it through Congress. ObamaCare would probably work better (the South has led the way in refusing to expand Medicaid), but it might also be possible to pass the kind of sweeping reform of the health-care system (single payer) that proved impossible for Obama.
In sum, the U.S. without the South would look an awful lot more like Canada and Europe than it currently does — while the newly independent Confederate States of America would likely look like, well, nowhere else in the civilized world. Rates of poverty, already among the highest in the nation, would probably leap higher still. Guns would be ubiquitous. Without a meddlesome Supreme Court to uphold reproductive rights, women in the New Confederacy might find it impossible to obtain abortions. Something similar would probably hold for gay rights (not just with regard to marriage, but even including sexual activity itself) and, of course, for African American voting rights. (Ten out of 11 states in the South have passed voting restrictions in the past four years. Imagine what would happen without what remains of the Voting Rights Act and the oversight of federal courts?)
So what do you say? Is it finally time for us Northeners to encourage the South to go its own way?
I’d be inclined to say yes, except for one thing. I have family members in the Midwest who hold views as conservative as those that prevail across wide swaths of the South. If it’s ideology and culture (rather than region) that divides us, then shouldn’t these Fox News aficionados join in the exodus? And come to think of it, my neighbor down the street in the Philadelphia suburbs has a Tea Party bumper sticker on his pickup truck. Maybe he’d be better off relocating somewhere south of the Mason-Dixon line, too.
You get the idea.
The dysfunction of our public institutions and the ideological polarization and self-segregation of our culture can easily convince us that we lack any common ground with those on opposite sides of the various conflicts that divide us. And yet here we are, sharing the same soil, the same history, the same democratic norms and ideals. If we don’t want to set a centrifugal precedent that states and even smaller groups of citizens are free to break off from the country and set out on their own at the first sign of tension — a precedent that if acted on with any regularity could easily lead to the dissolution of the nation itself — we need to accept that we’re stuck with each other and have no responsible choice but to learn, somehow, to get along.
Maybe that Lincoln fellow was onto something after all.
By: Damon Linker, The Week, October 29, 2014
“Shameful And Historically Illiterate”: Dear Fox News; Please Stop Using Asian Americans To Attack Black People
“Talking Points does not—does not—believe in white privilege.”
That was Fox News host Bill O’Reilly’s big, brave pitch during his third-person “talking points” segment on Tuesday’s edition of The O’Reilly Factor. The peg for the segment was the uproar and race issues surrounding the police shooting of Michael Brown in Ferguson, Missouri, this month. O’Reilly was blasting the idea of people citing “white privilege” to help explain anger or inequality in a predominantly black community. He railed against a perceived failure of black leaders to spark a “cultural revolution” in their “precincts,” and the lack of personal responsibility instilled in young African Americans.
Of course Bill O’Reilly doesn’t believe that the concept of white privilege exists. (Neither does much of the rest of Fox News.) He has denied the existence of such a privilege for white Americans in previous segments, including one in which he falsely claimed that Harvard Kennedy School was requiring freshmen to take a class on the subject.
O’Reilly’s latest salvo of white-privilege denialism has already been mocked and (rightly) criticized enough. But one aspect of his crotchety monologue that was particularly unappealing was how he invoked the general economic and academic successes of Asian Americans in order to highlight the supposed failings of African Americans.
“So, do we have Asian privilege in America?” the Fox host asked rhetorically. “Because the truth is that Asian-American households earn far more money than anyone else.”
O’Reilly also compares the statistic on Asian-American children raised in single-parent households (13 percent) to that of African Americans (a “whopping” 55 percent) to make the point that Asian families in this country are stronger. This is a favorite bugaboo of O’Reilly’s, and in the past he’s even said that First Lady Michelle Obama should come on his show and tell black teens, “You stop having sex; you stop getting pregnant.”
O’Reilly has made the Asian-privilege point before. He’s also praised Asian folks by asserting that, “Asian people are not liberal, you know, by nature” because “they’re usually more industrious and hard-working.” (It’s worth noting that not all Asian demographics fit neatly into this positive stereotype that colors the way O’Reilly talks about Asian citizens.)
First, let’s be consistent and call this phenomenon “yellow privilege.” So, sure, you could reasonably argue that there is a general yellow privilege that people who look like me enjoy in the United States. For instance, Asian-American men under the age of 35 have a far lower chance of being wrongly accosted by a police officer than a young black man would. The difference is that, unlike white people, we don’t have a bitter, well-paid armada of commentators to go on TV and complain about black people every time someone brings said privilege up.
But the real reason O’Reilly’s black-yellow comparison is so annoying and intellectually dishonest is because it is patently bizarre to compare the Asian-American experience to the African-American one. Such a crass talking point—one that uses the favorable stats of one minority group to attack the culture of another—overlooks, or at least glosses over, some of the most obvious facts and tragedies in our nation’s history. Generations of Asian Americans did not endure the traumas, legacies, and residual effects of slavery, Jim Crow, and decades of racist housing policy. These are factors that O’Reilly mentions only as an aside, preferring to talk more about the importance of getting black kids to “speak properly” and behave themselves in public.
Asian Americans and African Americans have had very different experiences in America, a complicated reality that O’Reilly and many of his colleagues do not seem eager to tackle. But at least his commentary in the wake of the Michael Brown tragedy has been more refined than some of his co-workers—a thought that is less a compliment to Bill, and far more indicative of the kind of organism that Fox News has become.
By: Asawin Suebsaeg, The Daily Beast,August 27, 2014
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