Saturday, April 14, 2007

Hippity Hop

PG has a nice post regarding the whole flap about how rappers use the word "ho" too. The sight of a load of middle age White men waxing lyrical (so to speak) over the dangers of hip hop is pretty hilarious, if a bit obnoxious. The irony is that I don't actually like most rap music (with a few exceptions), but I'm constantly pressed into defending it from increasingly ridiculous charges by people who really don't know the genre (I'll bite off my left thumb if more than two of the concern-trolls focusing on this issue have ever listened to more than 5 complete rap songs).
Surely if you can take the time to put Ludacris lyrics into a cartoon, you actually listened to the song (the same one infamously cited in an appellate opinion) and might have noticed that Ludacris clearly distinguishes "hos" from other women. While I find it hypocritical to deprecate a woman's promiscuity or actual prostitution while availing yourself of it, and am uncertain of whether I'd rather be a 'ho or a housewife in his binary, Ludacris explicitly is not singing about all women: "Not all, just some / You ho who you are." (From whence comes, I suppose, Chris Rock's claim that women will dance to the most misogynistic music and when Rock points out how awful the lyrics are, women will retort, "He ain't talking about me.")

Within my limited knowledge of rap, black women who are seen as strong don't get dissed even by rappers; Sir Mix-a-Lot actually paid tribute to their attractiveness: "You can have them bimbos, I'll keep my women like Flo-Jo." There's probably someone who has picked on Secretary Rice, but that's an unfortunate side-effect of political disagreement. Ludacris had a much-publicized beef with Oprah when she criticized his lyrics on her show, and neither he nor the other rappers she called out seem to have taken the fight to the studio -- indeed, Ludacris even urged his fans not to boycott her.

I'm not saying that all rap is exactly a model of female empowerment. There's a fair bit of misogyny involved. But on the other hand, rap scores points for being the most politically conscious music currently out there. And of course, cherry-picking a few songs is kind of ridiculous when you're claiming to condemn an entire musical genre.

Unfortunately, despite being White, I feel my Whiteness credentials aren't sufficiently strong enough anymore to rehabilitate hip-hop before my predominantly White audience (this is what happens when you focus on racial issues too much--the "enhanced racial standing" you enjoy begins to slowly fade away). So instead of offering up the concluding line myself, I'll defer to a man whose White-cred is unassailable: Roger Ebert:
Rap has a bad reputation in white circles, where many people believe it consists of obscene and violent anti-white and anti-female guttural. Some of it does. Most does not. Most white listeners don't care; they hear black voices in a litany of discontent, and tune out. Yet rap plays the same role today as Bob Dylan did in 1960, giving voice to the hopes and angers of a generation, and a lot of rap is powerful writing.

I grew where you hold your blacks up/ Trap us, expect us not to pick gats up/ Where you drop your cracks off by the Mack Trucks/ Destroy our dreams of lawyers and actors/ Keep us spiralin', goin' backwards. --Jay Z, "Dope Man."

A Story Is Worth A Thousand Words

I'm not a fan of fiction. Yet, oddly enough, I am a fan of stories. By stories I mean actual, real life events, told in the form of a story. I believe stories can bring across important truths that are obscured in dry, academic prose or even passionate speech and argument. One of my interests as a scholar is on incorporating storytelling into approved, official legal discourse.

As you all know, I have a deep and abiding interest in issues of racial justice. I write on a variety of issues on the topic, but one of the more interesting and distressing ones is racial profiling, and the general treatment of (mostly young) Black men by the police. You can read a wide variety of polemics on why racial profiling is bad, ineffective, or immoral. But the tales of racial profiling rarely make it out, because the people being targeted are primarily poor and don't have access to major media arms to publicize their stories. I excerpted from a stellar Washington Post article once that was an exception to this rule. And now, I want to share another story, which I will leave without comment.

The author is andre douglas pond cummings, and he is a law professor at West Virginia University. Prior to that, he was a corporate attorney for the prestigious Chicago firm of Kirkland & Ellis, which was his position at the time of these events.
While practicing corporate law at Kirkland and Ellis in Chicago, once a week (or sometimes twice) I quietly left the firm at 7 P.M. or so, to participate in a formal inner city youth mentoring project. I drove due west from downtown Chicago, 200 W. Randolph Street, to the "west side" near Grand Avenue and Monticello, one of the many "west side" neighborhoods in Chicago, where I met up with several young men and women, typically between the ages of fourteen and eighteen, and drove them to a local church where we did homework together for two hours or so. I engaged in this mentoring program all three years that I lived and worked in Chicago, prior to entering the legal academy. Up close and personal, I witnessed a variety of astonishing incidences:

As a reward for homework well done and high marks received, I planned to meet several of my mentees on a Friday night at 9 P.M. for dinner and a movie downtown in "the Loop." On this particular Friday night, I could not break away from K & E to make my 9 P.M. appointment with the mentees. By the time I was able to finish my work it was 10:30 P.M. or so. I immediately retrieved my car and drove out west to see if the disappointed youngsters would at least like to grab a late dinner in downtown Chicago. After picking up two young men, the three of us were accosted by two members of the Chicago Police Department ("CPD"). The two officers quickly turned into six and before we knew what was going on we had been cuffed, searched, my vehicle had been tossed and we had been tussled and menaced by the officers. Constitutional search and seizure violations were plentiful. Apparently, I had trespassed into a "well known" drug area, and that my interaction with two young black males indicated a "clear" drug transaction.

Once I was able to force the officers to realize that I was a practicing attorney, the four "extra" officers disappeared quickly, and we were left standing at the rear of my car, the contents of our pockets strewn across the trunk, my vehicle car doors open and contents of my glove box strewn about, and having heard enough threats to "stay out of this well known drug area" to last a good long time. This experience, where I was personally bullied and where attempts to physically intimidate all three of us had been exercised, was one that I could not let pass. I wrote a letter to the supervising lieutenant in that police precinct and clearly delineated the experience and made demands on the police department as to how I thought they should appropriately respond to the clear constitutional violation of our Fourth Amendment rights. The initial officers on the scene had an internal affairs investigation opened into their behavior on that evening and both were required to hire attorneys to represent their interests. Some of my demands were met by the CPD while the eventual conclusion to the investigation was a finding of "no cause." Apparently, we needed more witnesses than the three of us involved in the police malfeasance, in order to effectuate suspensions of these officers.

As we continued on our way toward downtown Chicago, one of the high school students remarked that he was unfazed by this incident. "Happens every day," he stated nonchalantly.

Here is the letter Professor cummings relayed to the Chicago Police, requesting an investigation:

Friday, April 13, 2007

A Friday Round-Up

I wasn't the best of bloggers this week, so I give you a round-up of material I meant to post on but never got around to.

In the context of the White House "losing" those emails, Glenn Greenwald reminds us that we've heard this excuse before. This administration has a history of "losing" key documents when the heat is on.

Powerline explains the mysterious lack of Voting Rights cases brought by the Bush Administration against efforts to disenfranchise Black voters: There are none left! Racism is over! Whites and Blacks live in perfect harmony, and the fairies run free amid sharing glen!

Come on, is that the best you got?

Condi Rice deflects the pressure to run for President by saying she wants to go back to Stanford (where she is a tenured professor). I can't help but wonder what her reception among the students there will be (I'm thinking Kissenger at Georgetown).

For my part, I've always found Rice to be competent if nothing else, which is far more than I can say for her colleagues. I think her cousin, Constance Rice, hit the right mark: "I admire Condoleezza. I just think she's hanging around the wrong crew right now."

Concurring Opinion's Nate Oman offers up the secular case for Establishment. Oman notes that the history of establishment has supported the view that it has the effect of moderating the church and ushering in a more secular society. This post, of course, mirrors the religious case for separationism, which holds that establishing a church tends to degrade and weaken religion. Interesting bonus fact: The last established church in America? The Unitarians in Massachusetts.

Also at the Co-Op, a post on the process by which Iraqis make claims against the US for civilian deaths. They can be tough to read--this one features a female US soldier crying next to the body of the Iraqi soldier in colleague had just killed (the US offered $4,000 in compensation to the family).

BlackProf has, unsurprisingly, a bevy of great posts centering around the Imus scandal. I can't excerpt them all, so here's a list:

Adrien Wing: Women's Sports Foundation Responds to Imus

Paul Butler: Hip-Hop and the "H" Word

Darren Lenard Hutchinson (out of retirement!): Beating Up Imus and Other Idiots: How "We" Construct Racism

Angela Onwuachi: On Becoming Don Imus: What Happens When Insults Go Unanswered?

Melissa Harris-Lacewell: On Forgiveness for Imus and Misunderstanding the Movement

Melissa Harris-Lacewell: A Little On The History of the "Nappy Headed Ho"

Matt Yglesias unpacks the stats on the surge in interracial marriages since Loving v. Virginia. Certainly a better surge than the one in Iraq!

Finally, the Blogging the Bible project is at the Book of Job. Definitely interesting.

Quick Thoughts on the Duke Lacrosse Case and Other Innocent Folk

LGM documents what happens to innocent men who aren't rich enough to afford top-flight legal talent and don't have DNA evidence that can "prove" their innocence. Fernando Bermudez was ID'd in a shooting by five witnesses. The problem is they were all coerced into making the ID, and have all since recanted. He's still in prison. This was the part that made me want to bang my head against a wall:
The reason is based in the prevailing wisdom of the American justice system, which views recantations as untrustworthy, acts not of conscience, but of sympathy or bribery or coercion. That view is so deeply ingrained that one judge, rejecting one of Mr. Bermudez’s appeals in 1995, said candidly that five recantations were simply too many to believe.

Wow is that annoying. Quick poll: Are all five witnesses more likely to recant their testimony because they've all been bribed, or because there was a systematic problem in how their testimony was obtained in the first place that they're trying to correct? Of course, if only two of the witnesses recanted, I have no doubt this same judge would point to the other three as proof that the conviction is still valid.

I bring this up, because the now exonerated Duke Lacrosse players say that their ordeal has exposed them to the manifest injustices in the criminal justice system. I don't doubt it. They've pledged to work to reform some of these excesses, and I wish them all the luck in the world towards it. The Duke players had access to excellent lawyers, constant media exposure (which must have been painful but also is responsible for publicizing much of the exonerating evidence), and DNA evidence. Many people can't count on any of that. One hopes that these recent events can spark reform efforts that benefit not just innocent upper-class Whites, but innocent men like Mr. Bermudez.

I've been waiting to hear from the feminist blogosphere on this development in the Duke case. Commentary by feminist bloggers can be found at Alas, a Blog, Feministing, Feministe, Reverse Paranoia, and Slant Truth. They're hardly of one mind, and my links don't necessarily signal agreement. But they're thinking hard about the implications of the announcement. And that's worth noting.

For my part, I do now believe that these men were innocent of rape. That does not mean that a sexual assault did not occur (other people were at the party that night). It doesn't mean that one did, either--I don't know. That they are innocent also does not mean that they are particularly good people--one has an assault conviction, another spouted some pretty racist stuff, and its relatively uncontested that the folks at the party harassed the stripper at the party, probably using racial language. But that falls through the wayside. I've stated before that I am terrified of being falsely accused of a crime. In all likelihood, that's what these men went through. They deserve our empathy for that. And I'll reiterate my hope that their story encourages us to make reforms in our legal system so that it is less likely to railroad innocent men who can't afford top-notch legal talent to prison.

Thursday, April 12, 2007

86ing the Voter Fraud Panic

Following up on my post regarding the Bush Administration's fraudulent presentation of voter fraud evidence, the New York Times did the legwork on voter fraud prosecutions for the 2006 election.
Five years after the Bush administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews.

Although Republican activists have repeatedly said fraud is so widespread that it has corrupted the political process and, possibly, cost the party election victories, about 120 people have been charged and 86 convicted as of last year.

Most of those charged have been Democrats, voting records show. Many of those charged by the Justice Department appear to have mistakenly filled out registration forms or misunderstood eligibility rules, a review of court records and interviews with prosecutors and defense lawyers show.

Let's see...86 convictions, across four years, even assuming they were all in one electoral jurisdiction (unlikely), that gives us....almost no impact on the democratic process!

So am I saying people who do commit voter fraud shouldn't be prosecuted? No. Well, except sometimes yes. Like in this case:
Ms. Prude’s path to jail began after she attended a Democratic rally in Milwaukee featuring the Rev. Al Sharpton in late 2004. Along with hundreds of others, she marched to City Hall and registered to vote. Soon after, she sent in an absentee ballot.

Four years earlier, though, Ms. Prude had been convicted of trying to cash a counterfeit county government check worth $1,254. She was placed on six years’ probation.

Ms. Prude said she believed that she was permitted to vote because she was not in jail or on parole, she testified in court. Told by her probation officer that she could not vote, she said she immediately called City Hall to rescind her vote, a step she was told was not necessary.

“I made a big mistake, like I said, and I truly apologize for it,” Ms. Prude said during her trial in 2005. That vote, though, resulted in a felony conviction and sent her to jail for violating probation.

Careless? Sure. Worthy of criminal prosecution? I don't think so. Greatest threat to democracy ever? Oh please.

Rich Hasen of the Election Law Blog (Loyala-Los Angeles) comments:
Together, these two reports show that despite tremendous efforts by the DOJ and others to ferret out instances of voter fraud taking place at polling places (as opposed to, for example, vote buying occurring with absentee ballots), there is very little evidence at this point. It is now incumbent upon those who still believe a great deal of voter fraud is taking place at the polls to come forward with a plan with sound methodology to show that such fraud is occurring on any kind of scale that would justify efforts such as the new recent onerous voter identification laws that have been put in place by some legislatures. But some who raise the fraud arguments do not appear to have an interest in relying on more than anecdote. The stories show the unfortunate politicization of election administration reform efforts in recent years.

The litany of laws that put ever-higher hurdles to voting is truly staggering (for my source-demanding friends, Publius is citing to NYU's Brennan Center for Justice) is staggering. The laws work to disenfranchise disempowered communities--and that's when the administrators aren't deliberately targeting them for removal from the rolls. They stop some people who can't vote legally, sure, but they disenfranchise many, many more law abiding US citizens whose right to vote is constitutionally protected. This is a travesty. And given the history that I already mentioned, it's a travesty that we have no valid plea of ignorance towards.

Wednesday, April 11, 2007

Passing Over Jewish Voices

This story from Jews on First, about a Texas law under consideration that would mandate schools carry elective Bible courses, illustrates an interesting point from my Religion Clauses as Anti-Subordination Principles article. The obvious route to go would be that the proposed curriculum closely mirrors Biblical interpretations favored by evangelical protestants. That's definitely a concern, but one that is quite easily addressed within the prevailing separationist paradigm. It's actually this anecdote that I want to pursue briefly:
Texas legislators are moving full speed ahead with a bill mandating elective Bible classes in the state's public high schools that appears crafted to facilitate use of a fundamentalist Protestant curriculum. Jewish groups have opposed that sectarian curriculum, but they were unable to testify at a hearing scheduled during Passover.

Scheduling a hearing on a bill of obvious importance to the Jewish community during Passover? Is it possible that this was deliberate? Well, while I'm not a fan of one of the bill's authors, I still doubt it. It strikes me as very unlikely that the scheduling was anything more than an unfortunate coincidence. I don't think it was motivated by malice.

But let's unpack this a little. I'm guessing that the folks scheduling this hearing were either unaware of Passover, or ignorant to its importance to the Jewish community. And so they scheduled debate on a day that most Jews couldn't attend. To understand why I think this is significant, try to imagine a similar situation, but with Christians as the disadvantaged group. What are the odds this hearing would be scheduled for Easter or Christmas morning? Is the legislature even in session during those times? Simply by virtue of its majority status, the dominant religion gets a whole package of intrinsic benefits, one of which is that there will rarely if ever be a case where a major political hearing will be scheduled to conflict with a major holiday--even if the topic isn't one that's important to them qua Christians. And if a conflict does occur, it is more likely that the legislature will respond to their concerns by rescheduling or offering an alternative venue for their views to be expressed.

This anecdote was brought up due to the irony Jews not being able to testify against a bill they opposed as Jews, but that's actually only a tangential point. If the legislature had been holding a critical hearing on, say, expanding healthcare for the poor or revamping educational funding, the same analysis would apply. Jews still wouldn't be able to attend, it still would be bad, and it still would be difficult to imagine important business being conducted on Easter Sunday. It's also important to note that a strict separationist approach would have little to say about this situation. If there was proof that the sponsors of the bill were deliberately trying to exclude Jewish testimony, that might be cause for worry. But without that proof, there is nothing "religious" about why the date and time were chosen for the testimony, and it is difficult to see how from a separationist perspective their decision could be condemned. It's these little things that structure the system in favor of dominant paradigms, and one of the reasons why it is important to be especially cognizant of the practices and perspectives of minority groups which may be lost when following Standard Operating Procedures designed by and for a Christian majority.

UPDATE: I've been made aware that the legislature did in fact schedule another hearing later on to accommodate Jews who wished to testify. This is excellent to hear, and while it may have been better not to have scheduled the original hearing on Passover in the first place, this is the right way to remedy that oversight.

I'll Show You A Fraud

The topic of the day is voter fraud, as this article detailing Bush administration "edits" to a report on voter fraud has been racing around the blogosphere. Basically, a bipartisan panel concluded that there was a solid consensus that voter fraud in the 2006 elections was minimal--specifically, "there is widespread but not unanimous agreement that there is little polling place fraud." By some magical coincidence, this rather definitive conclusion was morphed by Bush's political appointees into "there is a great deal of debate on the pervasiveness of fraud."

Obviously, I have a lot to say as to how this impacts the voter fraud/voter disenfranchisement debate. Since placing more stringent laws to combat voter fraud will inevitably deter some legitimate votes (and vice versa, more liberal voting laws make it easier to commit fraud), a fair examination of the issue needs to look at whether the we should care more about fraud or disenfranchisement, because from a policy perspective we can only pursue one or the other. I have blogged at length on this point before, and the empirical data is beyond question that voter disenfranchisement is a more serious problem than voter fraud. Voting rights expert Spencer Overton has estimated that there is 1000:1 ratio of legitimate to fraudulent votes deterred caused by imposing voter ID requirements. Indiana managed to justify its voter ID law on fraud-prevention grounds, despite never having a prosecuted instance of voter fraud in the history of the state. In the America we live in today, the quantity of evidence that voter disenfranchisement is a more serious problem for electoral integrity than voter fraud rivals that for gravity. The mendacity of the boys who cry fraud is akin to Young Earth Creationists, except that I'm more inclined to chalk up the former to pure hackery, with the latter ascribed to mere ignorance.

But before we get there, I think it's important to link this revelation into the scandal d'jour for the Bush administration--the attorney purge. There is a nexus point between the two stories, and it stems from a concerted conservative effort to lock out of democratic participation its political enemies--often racial minorities. Quoteth Josh Marshall:
You have to put all these pieces together to see the whole picture. The Republican party is heavily invested in hyping and inventing claims of voter fraud which they then use to stymie legitimate voter registration drives and institute 'ballot integrity' efforts which have the actual goal of limiting voting by racial minorities and under-income voters. The truth can hurt but that's the unvarnished truth. And the backdrop to the US Attorney Purge was a concerted effort to enlist US Attorneys to put the power of the state criminal prosecution apparatus behind this partisan gambit.

This is a crucial point. The firings of the New Mexico and Oregon attorneys, especially, are being linked to these public servant's refusal to pursue politically motivated voter fraud charges against Democrats. These activities have a long and sordid history in America. Scott Lemuiex summarizes:
It should be noted as well that the use of ostensibly neutral franchise-restricting measures to suppress the vote along racial and class lines has an extensive and incredibly ugly history in this country. A lot of people aren't aware of this, but even in its most conservative periods, the Supreme Court wouldn't allow direct violations (or transparent evasions, like the grandfather clause) of the 15th Amendment. But the use of facially neutral techniques like poll taxes and literacy tests allowed states to disenfranchise African-Americans anyway. "Vote ID" laws, felon disenfranchisement that results in the purging of some non-felons, and other techniques repeat the pattern at a lower (but, in a tightly divided electorate, potentially decisive) level.

Consider this passage from Michael J. Klarman's magisterial work on the Jim Crow era, From Jim Crow to Civil Rights:
Southern whites carefully avoided open contravention of the [15th] amendment. They assumed that the implementation of explicit racial conditions on suffrage would prompt federal intervention—either court action or reduction of southern congressional representation under section 2 of the Fourteenth amendment. Thus, in 1910, southern politicians were alarmed by Maryland’s disfranchisement proposal, which denied that the Fifteenth Amendment was binding and expressly qualified the suffrage based on race. Critics thought the nation would ‘not submit without a protest to the barefaced nullification’ of the Fifteenth Amendment and feared that Maryland’s scheme would endanger more subtle disfranchisement measures. Even southern state courts might have felt compelled to invalidate laws expressly barring black political participation, much as they reversed convictions of blacks where jury commissioners had deliberately and openly excluded blacks jurors. In 1904, a Georgia court invalidated a law forbidding blacks from voting in municipal elections.

Yet most white southerners thought the Fifteenth Amendment was illegitimate. A leading Louisiana disfranchiser stated a prevalent view when he called the amendment ‘the greatest crime of the Nineteenth Century’; crazed Republicans bent on partisan gain had imposed ignorant ‘negro domination’ on the South. Deterred from explicitly nullifying the amendment, white southerners generally felt ‘morally justified in evading and defeating [its] admitted purpose.’ Disfranchisers were not subtle about their objectives. At the Virginia convention, Carter Glass acknowledged that his mission was ‘to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every negro voter who can be gotten rid of, legally.’(33)

We tell the history of racist oppression in America as one of Southerners openly and proudly passing laws that said, in substance, "No Blacks." But often times, that wasn't what happened, and they specifically drew up the laws to pass formalist muster.

Here's a primary source from the era saying much the same thing:
Largely through the foresight and sagacity of the late Hon. J.Z. George, the Mississippi Constitution of 1890 securely guards against the registration of Negroes in large numbers. Its provisions relating to the prerequisites to registration as an elector, impose the following requirements: Two years of residence in the state; one year of residence in the election district; payment of all taxes for the preceding two years (the applicant must produce evidence to the satisfaction of the election officials that all taxes have been paid); freedom from disqualification by a prior conviction of certain crimes; payment of a poll tax; and a literacy requirement.
Large numbers of Negroes are automatically disqualified from the exercise of the franchise by moving from one county to another to make crops at the first of each year.

Most the [sic] Negroes in Mississippi are poverty-stricken. That fact, coupled with the natural improvidence of the race, will lead to a default of many in the payment of taxes….
In specifying those crimes which would disqualify a citizen from exercise of the privilege of voting, upon conviction, the compilers of the Mississippi Constitution listed those offenses which the irresponsible and impulsive class of uneducated Negroes are most prone to commit….
The illiteracy of the Negro population of the South is well known. Few have more than the rudiments of education. Wholesale disqualification would follow the imposition of a literacy test, in the event of any general tendency of Negroes to apply for registration. The Mississippi Constitution requires that an elector shall
‘be able to read any section of the constitution of this state; or he shall be able to understand the same when read to him, or give a reasonable interpretation of the same.’

The constitution leaves to the choice of the election officials the selection of the section to be interpreted. The most illiterate white man could readily give a clear interpretation of the provision that ‘The governor shall be at least thirty years of age,’ but it would tax the wits of any Negro applicant not educated in law (and lawyers may not serve as jurors) to adequately explain just what is meant [*203] by the provision that ‘The writ of habeas corpus shall not be suspended,’ or that ‘Ex post facto laws shall not be passed.’[J.F. Barbour, Note and Comment Mississippi Law Journal 8 (1935): 196-204, pp. 201-203]

Barbour, mind you, wrote this in an article agreeing that laws which explicitly forbade Blacks from voting or serving on juries were unconstitutional. This was the section where he explained why acceding to that formalistic principle would not threaten White Supremacy.

I stress these points because we simply cannot discuss this issue blind to the history behind these sorts of policies, and the manner in which formally neutral voting laws were a key pillar in America's racist hierarchy. The willful blindness exhibited on this issue is simply unbecoming of genuine deliberative dialogue, and ought to be called out more often.

Here's a round-up of other views

Steve Benen

Hilzoy's post explains why, if you want to steal an election, voter fraud is a really dumb way to do it.


PoliBlog offers a strong and sober analysis of the story.

Mark Kleiman discusses the Bush Administration's efforts to suppress reports contrary to their policy on voter fraud and related issues.

Politburo Diktat certainly sounds like "a conservative whose been mugged by reality" in this post.

Brilliant at Breakfast: "It can no longer be denied: Republicans will rig the system to ensure Republican power by any means necessary. The question now is this: What are we going to do about it?" Maybe a bit hyperbolic, but its tough to argue with the trend line.

Kevin Drum finds the "great deal of debate" line echoing eerily of global warming "skeptics." No kidding.

And finally, Matthew Yglesias' short but sweet post has been a reference point for many of the top bloggers--for good reason.

2011 Will Be a Bit of a Let Down

It's accepted students week at Carleton today, and wouldn't you know it if we're in the middle of our second snow storm this April! Not just flurries, mind you--it's really coming down, and it's sticking.

Somehow, I think we might be looking at a bit of a yield-dip for the entering class of 2011.

Tuesday, April 10, 2007

Originalism and the ERA

Ilya Somin and Eugene Volokh have been making the argument that passing the Equal Rights Amendment (ERA) would mean the end of a great many policies that liberals (including feminist liberals) are very much enamored with (or at least don't want to see categorically abolished). This would include female-only sports teams, affirmative action programs for women, bars on women in combat, or single-sex bathrooms.

Responding to the criticism that judges would simply not interpret the ERA in this manner (similarly to how they haven't--yet--interpreted the 14th Amendment or the Civil Rights Act as barring affirmative action), Somin argues that the times have changed on the Supreme Court and progressives can no longer count on liberal majorities to establish precedents and interpretations in their favor on these issues.
This argument is not wholly implausible, but it ignores the massive differences between the judiciary today and that of the 1960s and 70s which created the dominant interpretations of the Civil Rights Act. At that time, the judiciary was overwhelmingly liberal and nontextualist. As a result, they were willing to deviate from the text to reach liberal results, especially at a time when Congress and the president largely approved of their objectives (as did even Republican President Richard Nixon, who supported affirmative action). Today, the judiciary is largely made up of judges appointed by conservative Republican presidents Reagan, Bush I, and Bush II, all of whom tried hard to pick judges with strong conservative credentials and (to a lesser extent) textualist approaches to constitutional and statutory interpretation. For example, almost 60% of today's federal court of appeals judges were appointed by conservative Republican presidents. With the replacement of Justice O'Connor (who waffled on the issue) by Justice Alito, the Supreme Court also has a majority hostile to affirmative action. And today's presidency is often held by conservative Republicans. Congress, even under the Democrats, is unlikely to have the kind of strong liberal majority that existed in the 60s and 70s.

What Somin doesn't mention, however, is that these conservative judges often at least nominally claim to adhere to originalism, not just textualism. And it is beyond clear that liberals do not intend the ERA to be interpreted in a manner that would preclude favored liberal policies. Indeed, the tone of Somin and Volokh's posts seems premised on this point--that liberals giddily pushing for passage of the ERA don't know what they're getting into (and certainly don't intend to live in a world where the aforementioned policies are deemed unconstitutional). While Volokh and Somin focus on the plain text itself (and agree that their interpretations are certainly plausible ones), the scholarship on the ERA (especially in recent years when it has seemed all but dead) has come primarily from the feminist left, which has created a paper trail that points rather strongly in the direction of an ERA not meant to embody an anti-differentiation principle (which is how Somin and Volokh read it).

So we are faced with an interesting conundrum for conservative judges nominally tied to originalism. The original intent, meaning, and understanding of this amendment almost has to be read in accordance with the scholarship that has been its primary exposition over the past 20 years or so. This scholarship embodies not just liberal, but relatively radical leftist positions on the relationship of law to subordination--positions that I'm a fan of, but conservatives tend to rail against with wild abandon.

Personally, I'm in agreement with Somin that conservative judges political opposition to many of these liberal policies will guide their interpretations, and originalist rhetoric will be co-opted or subsumed to that end. If so, that should drive a pretty large stake through the heart of the claim that originalism is a more "objective" philosophy of judicial interpretation--as opposed to just another guise by which judges install their preferences into law.

Life Meets Doonesbury

I just clicked a banner ad for Walden College.

Monday, April 09, 2007

Obama Drops Fox/CBC Debate

Joining John Edwards, Barack Obama has announced he will not participate in the Democratic candidates debate co-hosted by Fox and the Congressional Black Caucus. While Obama had also withdrawn from Fox's planned debate in Nevada, the CBC's sponsorship made Obama's decision far riskier. Obama has been fighting persistent rumors that he is being rejected by the Black community due to his unconventional background and African (as opposed to African-American) father. To my mind, that's BS, and the reason that Black voters aren't automatically flocking to Obama is because they are intelligent people who will vote for who they think is the best candidate, not whoever can wave the right color swatch.

That notwithstanding, it definitely has been hurting Obama that he hasn't been able to solidify his support in the Black community, and the CBC debate must have been an awfully tempting venue to try and get his message out to them. He will still participate in another CBC debate co-hosted by CNN.

The Netroots, unsurprisingly, is quite pleased. Praises sing from DKos, Steve Benen, MyDD, and FireDogLake. In fact, I haven't seen a single liberal blog condemning him. But I'll admit that these are mostly White (or non-African-American) sources--I'm curious if Black Democrats feel differently--their opinion is the crucial one here, I feel. BlackProf--one stop shopping for Black political/legal commentary--hasn't written anything on it yet. Pam Spaulding, however, is quite pleased with Obama as well, lending credance to the notion that the CBC is out of line with mainline Black Democrats.

The Short Version

This is an abbreviated version of my aforementioned article. It runs a bit long at 30 pages (if you're interesting in reading it, but not all of it, Sections II and IV are the heart of the argument.), so I'm putting down a greatly truncated version here (an implication of which is that the argument is better and more complete in long-form). If this piques your interest, please download a free copy of the article to peruse at your own leisure.


Theoretical Problems with Strict Separationism

In my paper I outline several problems with strict separationism. However, by and large the most prominent is how strict separationism encourages legislatures to pass so-called “generally applicable” laws. These laws are distinguished by the fact that they do not single out or otherwise “notice” religion in any way whatsoever. They apply equally to persons of all (or no) religious faith. It is obvious that a “general” law can have drastically different implications for different faiths. For example, a law categorically barring the consumption of wine would be devastating for Catholics but relatively inconsequential for Buddhists (I’ll use this as an example because I trust the Catholic practice at issue is familiar; I’m not expressing an opinion as to whether Catholics are disadvantaged faith). However, from a religious liberty perspective the problem is the burdens these generally applicable laws distribute will inevitably fall overwhelmingly on minority religions. This is not necessarily a result of overt hostility to minority faiths. Laws will rarely stand in opposition to Christian religious practice, because most legislators are Christians and will be aware of the potential conflict (and won’t want to harm their own faith). Lawmakers are simply more likely to notice when majority practice might be implicated in a law (or be responsive to constituent reports of religious burden or hardship) than if a politically powerless minority sect faces similar problems. Even if made aware of this religious hardship, it may be difficult for a legislator to conceptualize the burden a law places on an uncommon or unfamiliar religious practice, and fairly weigh that against the interests the proposed law is meant to achieve.

Despite being saddled with an intrinsic bias, however, the rhetoric of a “neutral” or “generally applicable” law implies that deviations are a demand for special rights or privileges and thus would constitute religious favoritism. Insofar as minority faiths do inevitably deviate from a norm based on a Christian template, their requests for accommodation would be a facial violation of strict separation and will be summarily rejected. An exemption for Catholics to our “no drinking wine” law could not survive such review, for example. Hence, strict separation will only treat disfavored groups equally insofar as they are similar to or consistent with the dominant paradigm. But if we are to conceive of the religion clauses as protecting religious distinctiveness (that part of having the religious freedom to be Jewish means not having to make your practices Catholic), this schema is a wholly inadequate defense of religious liberty.

The Anti-Subordination Alternative

There is an alternative to the separationist formulation of the First Amendment that is consistent with our desire to protect minority religious traditions. Instead of mandating strict separation in all cases, including those in which that doctrine is interpreted to require state suppression of minority religions under the guise of “neutrality,” the First Amendment “should be read to protect minority religious beliefs and practices from being burdened by government and…equalize the status of minority religions before the government with that of majority faiths.” This is freedom of religion as an anti-subordination principle—concerning itself primarily with the status of religious minorities and insuring that they are placed on equal footing with majority faiths.

Anti-subordination is not a constitutional “test” as much as an outlook or a framing point that directs what ends the legal system desires the religion clauses to achieve. Ruth Colker articulates the view of anti-subordination as believing that “it is inappropriate for certain groups in society to have subordinated status because of their lack of power in society as a whole.” This is contrasted with the “anti-differentiation perspective,” which holds that “it is inappropriate to treat individuals differently on the basis of a particular normative view [about their group membership].” In other words, if we are committed to treating two groups equally under anti-differentiation, we must treat them precisely the same, while if we are committed to equality as anti-subordination, we must treat them in a manner so as to equalize their status in society, which may require disparate treatment. Anti-differentiation manifests itself in separationism insofar as the principle facially condemns disparate treatment between religions, as well as between religion and irreligion. It is thus officially agnostic to the manner which equal treatment might yield unequal effects or results. Anti-subordination sees the harm not necessarily in the particular treatment government metes out to religious or secular actors, but in the resulting effects such treatment has on those groups’ equal status in society. To return to the wine case, anti-differentiation would notice only that Catholics and Buddhists are being treated the same, and that an exemption would treat them differently (and thus unequally, and thus illegitimately). An anti-subordination stance would notice that the wine law impacts Catholics and Buddhists differently, and that it has the effect of subordinating the Catholic faith by proscribing a crucial element of its faith. Moreover, if an exemption were granted, Buddhists would not see themselves as being disadvantaged or subordinated to Catholicism (assuming they too received exemptions in analogous cases where they are on the bottom). Using an anti-differentiation principle would do nothing to “protect” Buddhists and would do serious damage to Catholicism. So anti-subordination would advocate granting the exemption, differential treatment notwithstanding.

Articulating the First Amendment from this framework would, in my opinion, yield significantly different jurisprudence. By recognizing that difference is a relative term, it would reject the “original entitlement” the dominant party claims by virtue of its dominance, by which the subordinated party’s difference/deviation is made into a justification for unequal treatment. Generally speaking, a view from the perspective of the minority group will not condition equality on sameness with the majority, but rather will define equality as equal entitlement to pursue their own conception of the good. At the very least, an affirmative effort to include subordinated perspectives into legal discourse would enhance their moral and democratic legitimacy, for as Iris Marion Young argues, “Normative judgment is best understood as the product of dialogue under conditions of equality and mutual respect. Ideally, the outcome of such dialogue and judgment is just and legitimate only if all the affected perspectives have a voice.” Insofar as some voices are not represented in the status quo, legal actors must proactively work to insure that the voice of the minority—be it Jewish, Muslim, Atheist, or other—is included and fairly considered in the proceedings.


1) Isn't this biased in favor of minorities?
Well, yes and no. What anti-subordination recognizes is that different groups, in order to be truly equal in society, may need different treatment. Laws are written with the majority in mind and their interests should be protected via democratic processes. The same can’t necessarily be said for minority groups. This is why we have judicial review in the first place. So in that sense, it provides a different type of review for minorities, because they’re in a different situation in our society and polity than majorities. Ironically enough, though, in many of these cases the legislatures were quite protective of minority rights, carving out exemptions for faiths which requested it, only to see their laws struck down as religious favoritism. In that case, anti-subordination acts as a constraint on courts to stop them from interfering with the democratic process as it tries to accommodate religious difference.

What I will say is that if we understand the religion clauses as expressing a constitutional aspiration that all faiths (or all those compatible with basic liberal premises) should be free to exercise their religion in their own autonomous and distinctive manner, then we will almost definitely have to pay special attention to minorities whose faiths and practices are unfamiliar or strange. You can’t see through a wall (of separation), and this blindness is a major obstacle to writing legislation and policies compatible with religious pluralism.

2) What about the human sacrifice religion?
To go into a bit more technical constitutional nomenclature, anti-subordination would in large part restore the Sherbert test (largely abandoned by the Supreme Court in the 1990s) for Free Exercise cases, which demands that laws which impede on religious practice be supported by a “compelling state interest.” This is the same standard that the Court uses to analyze other rights claims—free speech, freedom of assembly, equal protection, etc.. Though it is a stringent standard, certainly it is not impossible to meet, and preventing killings (along with a wide array of other rules necessary to keep intact a liberal, civilized society) would easily survive it. The point is to enshrine religious pluralism (including the right to distinction from prevailing norms) as a constitutional value. This clearly does not mean this value cannot be “trumped”—but we should be explicit when we do so, and what I’m rejecting is that an “anti-differentiation” or “strict separation” principle is strong enough to trump by itself.

3) What counts as a “minority” faith anyway?
This, actually, is the toughest question. In general, I mean “non-Christian” faiths, because America is a Christian dominated polity. Our very conception of religion is premised around a Christian template (for example, there have been reams of paper written on how the constitutional privileging of belief over action is a Christian model that was designed to stand in contrast to Judaism, which holds the reverse), every legislator is aware (or soon will become aware) of basic Christian religious practices, and there is close to zero chance of an American polity passing a law severely burdening mainstream Christian religious practice. Nonetheless, I recognize that certain Christian sects may be likely to face severe burdens that rise to the level of subordination (Jehovah’s Witnesses are the obvious example).

The tougher case would be a village or town that is overwhelmingly of a non-mainstream religion. I do not oppose the existence of minority-dominated localities—in addition to the fact that many religious traditions require this sort of seclusion, such an opposition would be fundamentally biased: nearly every town is Christian-dominated—there is no reason why disadvantaged groups should be “locked in” to minority status at every level of governance if they desire some level of local autonomy or a community where their culture is the norm (and not an “exemption” or “accommodation”). That notwithstanding, in such situations it is still quite fair to examine whether or not a Christian “minority” is being treated fairly and equally. In short, anti-subordination is aware of the potential for subordination of the nationally dominant faith in a minority-comprised locality. However, it does not view the mere existence of such locales as constituting subordination.

Publication Announcement

I'm proud to announce that my first law review article, "When Separation Doesn't Work: The Religion Clauses as Anti Subordination Principles," will be published in the upcoming Spring 2007 edition of the Dartmouth Law Journal. Here's the abstract:
Since the Warren Court era, strict separation between church and state has been the hallmark of liberal religion clause jurisprudence. Separation between church and state has been understood to protect minority religions from majoritarian oppression, preventing dominant religious faiths from using the state apparatus to instill an official orthodoxy or creed. Minority faiths, cognizant of these risks, have thus dutifully supported strict separationism as their preferred legal principle.

Yet strict separation may not be to the optimal benefit for religious minorities. Using the experience of Jews in America, I take a critical view of the separation of church and state, showing how both in theory and in practice it takes inadequate account of religious difference and thus is intrinsically biased in favor of dominant religious paradigms (Christianity or secularism). At the same time, separationism is indifferent or even hostile to the particularistic needs of less prominent sects. I then use these observations to construct a new, more egalitarian religion clause jurisprudence, based on the principle of anti-subordination. This principle, inspired by similar critiques of neutral principles made by the legal feminist and critical race theory movements, would articulate an establishment and free exercise perspective that sees as its goal the equalization of status between majority and minority faiths in America.

You can download a draft copy here at SSRN.

UPDATE: Too long? Don't feel like downloading the whole thing? Here's my blog-only abbrieviated form. For those of y'all too lazy to dive into a 30-page paper by someone you barely know.

Sunday, April 08, 2007

Make No Mistake

It's lines like this that are going to push Obama to the Democratic nomination and the Presidency:
Mr. Obama was approached by a woman, her eyes wet. She spoke into his ear and began to weep, collapsing into his embrace. They stood like that for a full minute, Mr. Obama looking ashen, before she pulled away. She began crying again, Mr. Obama pulled her in for another embrace.

The woman left declining to give her name or recount their conversation. Mr. Obama said she told him what had happened to her 20-year-old son, who was serving in Iraq.

“Her son died,” he said. He paused. “What can you say? This happens to me every single place I go.”

The next day, at the rally here, Mr. Obama described the encounter for the crowd. The woman, he said, had asked if her son’s death was the result of a mistake by the government. “And I told her the service of our young men and women — the duty they show this country — that’s never a mistake,” he said.