Tuesday, September 6, 2016

What does it mean to look "presidential" (or "professorial," or "decanal," or...)?

One of the big stories of the 2016 presidential election is whether Donald Trump looks and acts presidential. This is no idle conversation.  What voters want to know is whether Trump can act like a president is supposed to act, do the things a president is supposed to do, look like a president is supposed to look.  Note that the bar for candidate Trump is very low.  Reading from a teleprompter will do.  Or not behaving like a sixth grade bully.  Note also that the point is not whether he is or can be presidential.  The point is whether he can pass for one.

Think first about what that means.  And think next about who benefits and who does not when we think about candidates, and jobs, and life, in that way.

Monday, September 5, 2016

What to make of the Puerto Rico Fiscal Control Board?

Back in June, the US Congress agreed on a bill to "solve" Puerto Rico's financial problems.  One of the solutions under the PROMESA Act (who says that politicians and their aides do not have a sense of humor?) is the establishment of a federal control board to oversee the finances of the island and the restructuring of the notorious Puerto Rican debt.  And just this past week, President Obama appointed seven members to the board, five of whom are Latin@s.

This is in-your-face colonialism for a 21st Century audience.

Friday, September 2, 2016

Alt-Right and "race realism" taken with a dose of history

The Diane Rehm show had a terrific discussion about race and immigration this week.  You can find it here.  Of particular interest to me is the conversation began by Jared Taylor, editor of American Renaissance magazine, a self-described "race-realist, white advocacy organization".  This particular exchange, early in the conversation, is particularly revealing:
REHM
Help me to understand what the term race realism means.
TAYLOR
Well, this has to do with the central element that does unite the alt-right. Among the many positions held by the alt-right, we reject the notion that race is some sort of sociological optical illusion. Race is a biological fact, whether we wish to recognize that or not, and we completely reject the idea that all races are exactly equal and equivalent and in effect interchangeable. 
TAYLOR
It's obvious that if a nation goes through substantial racial demographic change, many aspects of it will change, and a majority has the right to remain a majority. This is taken for granted in all non-white countries. You would never expect the Japanese or the Nigerians or the Mexicans to countenance some kind of immigration or other program that reduced them to a minority within a period of decades. They would laugh at it. 
REHM
Of course the United States has, from its very beginnings, taken in far more of a variety of races, some voluntarily and some otherwise. 
TAYLOR
Yes, but the very first immigration law established in 1790 by the very first Congress of the United States, when these fellows were sitting around trying to decide what sort of nation they are going to be, the very first naturalization law was going to restrict naturalizations to free, white persons of good character. 
REHM
And that's how you'd like to keep it. Is that correct? 
TAYLOR
Nations have a right to maintain some kind of cultural, racial and historical homogeneity, yes indeed. Furthermore we had an immigration policy, up until 1965, that was explicitly designed to keep the nation majority European. There was absolutely nothing wrong with this. The United States, people like to call it the American experiment. I don't like to think of my country as an experiment, a bunch of chemicals sitting over a Bunsen burner. 
TAYLOR
We have not suspended the laws of human nature in the United States of America. We are a nation like any other, and the extent to which we lose any kind of cultural, racial homogeneity, the extent that we become a multi-culti mishmash, we will become an ungovernable place...
This is breathtakingly refreshing.  It is a testament to Diane Rehm and her wonderful show.  I am particularly intrigued by Mr. Taylor’s gloss on the past.

Mr. Taylor argues that the white majority has a “right” to remain a majority.  Diane Rehm pushes back, and rightly so: the US has admitted a multitude of races and nationalities from the beginning of the country, “some voluntarily and some otherwise.” Taylor responds with the 1790 Naturalization Act, which reserved U.S. citizenship to “any alien, being a free white person.”  Mr. Taylor appears to read this language as a hardened racial classification.  One need not do so, of course; instead, this language could reflect a racialized baseline that accounted for the reality of slavery as it existed in the late 18th Century.  In other words, the language of “free white person” is simply to draw a line between black people and everyone else.

Note that this second reading is much kinder to the founding generation and their conflicted views about race.  In contrast, Mr. Taylor’s reading sides with Dred Scott and the reading of our founding generation as racist and white supremacist.  He further ascribes this view to subsequent generations, up to 1965 and the Immigration and Nationality Act, which replaced the national origins quota system with a preference system.

So there you have it.  Mr. Taylor is essentially calling into question the First Reconstruction, which overruled Dred Scott and extended rights of citizenship to the former slaves, and the Second Reconstruction, which continued the earlier struggle.  Mr. Taylor objects to racial progress, diversity and multiculturalism.  He objects to the very things that many of us see as what makes the United States an exceptional country. 

More generally, what I find most interesting about Mr. Taylor’s views is how he deploys history and his reading of our shared past in order to tell a story of where we should be as a nation.  But of course, Mr. Taylor is telling you the story he wants you to hear.  I wonder what he would say, for example, about the Treaty of Guadalupe Hidalgo and its treatment of those living in the annexed Mexican territory.  I also wonder how he would fit Hawaiian and Alaskan statehood within his narrative, or the 1917 Jones Act, which extended US citizenship to the people of Puerto Rico, or the 1924 Indian Citizenship Act, which conferred US citizenship to American Indians born in the US.  Or the McCarran Walter Act of 1952, which removed race as an exclusionary category in immigration.

I imagine he would revert back to his view of the founding generation as racist and white supremacist.


Refreshing indeed.

Wednesday, August 31, 2016

The Supreme Court has Denied the Stay Request on the NC Case

The Supreme Court denied North Carolina's application to stay the mandate of the Fourth Circuit decision that essentially struck down NC's omnibus voting law.  The Chief Justice, and Justices Kennedy, Alito would have granted the stay except for the preregistration issue.  Justice Thomas would have granted the stay in its entirety.  Some brief observations:

First, as I noted here, on a Court that is evenly divided on contentious voting issues, the courts of appeals are essentially courts of last resort.  But more importantly, they know that and they are behaving that way. The Fourth Circuit wrote the opinion it did because it knew that its decision was effectively unreviewable as long as no one defected from the liberal bloc.

Second, the fact that the conservative justices would have granted the stay (Justice Thomas in toto, the others everything but the preregistration), tells us a lot about the strength of the application for stay by petitioners (and the strength of the ideological divide on these issues).  The application for stay was very strong and obviously attractive to the conservative Justices, presumably the applicant's primary target.  The application was addressed to the soft spot in the lower court opinion, including the Fourth Circuit's understanding of intentional discrimination and the manner in which the Fourth Circuit's analysis limited the Supreme Court's decision in Shelby County.

Third, there are simply two different ways of thinking about law and political participation in this country.  One way of thinking about it appeals to liberals and the other way of thinking about it appeals to conservatives.

Lastly, liberals, particularly liberal academics, depending upon the outcome of the election, may get a chance to not only develop their theories of race and political participation (or of political participation writ large), they may see those theories implemented.  It will be interesting to see what the new scholarship on these issues will look like.  An example of what I have in mind is this recent paper by Pam Karlan.

Thursday, August 25, 2016

The D-Word: On Discrimination

I was recently reminded once again that "discrimination" is a powerful word.  I recently joined an over-forty soccer league and we had our first game recently. From my perspective, the referee was calling most of the fouls against our team and in favor of the other team.  After yet another call that went against our team, which resulted in a booking of one of our players, I ran to the referee and shouted "this is discrimination."

The accusation of discrimination upset both the referee and some of the players on the other team.   The referee proceeded to tell me that his father was black and a couple of the players on the other team, who were Latino claimed that the charge of discrimination was absurd because they were non-white.  Words were exchanged.

As it turns out, I was not accusing the referee of racial discrimination, that would have been a non-sensical accusation. Both teams (my team and the opposing team) were predominantly white.  The people of color on my team included two Latinos who could be visually identified as such, two players of Asian descent, and myself.  The people of color on the other team included at least three Latino players but at least two could phenotypically pass as Anglos.  The foul that resulted in a yellow card was called against one of my white teammates.  The referee appeared to me to be Latino and his seemed limited.

I was not accusing him of racial discrimination or of discriminating against me.  I was accusing him of favoring the other team and discriminating against my team. My accusation was not about skin color but shirt color.

But it was interesting to me how an accusation of (a) discrimination (b) by a black person is not only a conversation stopper but evokes deep anger. People get angry about being accused of racial discrimination even when they are discriminating.  And of course the ability to level a charge of discrimination is an extremely powerful weapon.  This is why some have tried to reduce the power of the charge by inventing the concept of "playing the race card."

My opponents and the referee thought I was playing the race card.  I doubt that the referee and my opponents would have a similar reaction if I had used the word "bias" or "favoritism" instead of discrimination.  Moreover, my guess (and this is only a guess) is that if one of my white teammates had leveled the charge of discrimination, the referee would have laughed it off.

I wonder what we be gained and lost, if anything,  if people of color substituted phrases like "racial bias" or "racial favoritism" and the like for "racial discrimination"?  Would a change in discourse inhibit our ability to effectively describe racial discrimination and articulate it as such or would it enhance our ability to communicate with others the cost of racial bias and how it might be addressed?

Monday, August 15, 2016

Monica Puig, citizenship and representation

A few days ago, Monica Puig won Olympic gold in tennis, the first athlete competing under the flag of Puerto Rico ever to do so.  I was sitting at my computer when I heard the news and a bolt of electricity shot through my body.   I cried the first time I saw Puig on the medal stand and heard "La Borinqueña" in the background, and cry every subsequent time I watch the clip. It took me back to my childhood, when my entire neighborhood sat around the television set and watched Wilfredo Benitez and Wilfredo Gomez win world championships in boxing.  The sense of pride is indescribable.  

Yet my passport tells me I am an American citizen.  My passport is wrong.

Friday, August 12, 2016

Caste, the 14th Amendment, and overcoming white supremacy

I just listened to a recent Diane Rehm showTwo Views On The Jim Crow South And Its Legacy, this morning. She interviews Charles Dew and Isabel Wilkerson.  From Professor Dew, I got some answers to questions I ask myself every time I see an old picture of a lynching.  From Professor Wilkerson, I got angry.  Not about what she said, but how her discussion recalled for me our 14th Amendment doctrine and its modern colorblind interpretation.  The moral equivalence of, say, Blacks growing up under Jim Crow and whites applying to college, escapes me.  If that's what the 14th Amendment really means, I am fully prepared to give it back.