Wednesday, February 8, 2017

Betsy DeVos and the Fight of our Lives

“The greatest success of the Freedmen’s Bureau,” wrote W. E. B. Du Bois in 1901, “lay in the planting of the free school among Negroes, and the idea of free elementary education among all classes in the South.” This was a key moment in the history of the United States, a time when the country wrestled with the meaning of freedom once slavery formally ended in 1865.  To President Andrew Johnson, freedom was simply the absence of chains, nothing more.  To Republicans in Congress, however, freedom meant much more.  Critically for us today, freedom for the African American community after the Civil War meant to be literate, that is, “the ability to get an education.” 

But the South would not take the success of these Freedmen’s schools lightly.  Again, Dubois:
The opposition to Negro education was bitter in the South, for the South believed an educated Negro to be a dangerous Negro. And the South was not wholly wrong; for education among all kinds of men always has had, and always will have, an element of danger and revolution, of dissatisfaction and discontent. Nevertheless, men strive to know. It was some inkling of this paradox, even in the unquiet days of the Bureau, that allayed an opposition to human training, which still to-day lies smouldering, but not flaming.
Education can be revolutionary, dangerous, yet a central aspect of our freedom.  Hence the status quo opposes it. This is the reason why Freedmen’s Bureau agents were under constant threat of private violence.  This is also why the Klan targeted Freedmen’s schools.   And this is why, during the Civil Rights Movement, Freedom Summer in 1964 featured Freedom Schools, which sought to empower K-12 students to become active and engaged citizens.

This history flashes in front of my eyes as I think about the fight over the nomination of Betsy DeVos for Secretary of Education.  

This might be the fight of our lives.  Much can be said about DeVos’ lack of qualifications for the position she now holds, or the obscene amounts of money she spent in order to further her cause, or how much money she gave members of Congress who then voted on her nomination.  One can also debate the fact that Secretary DeVos “wants to use America’s schools to build ‘God’s Kingdom.’”

In today’s New York Times, Ross Douthat buys none of this.  He cannot understand why so much effort and angst was placed on the DeVos nomination.  After all, he writes, “we have an education secretary who perhaps errs a little too much on the side of choice-as-panacea, overseeing (with limited powers) an American education bureaucracy that pretty obviously errs the other way.”  Striking the right balance between these competing sides is key.  But as an empirical matter, he cannot understand why the nomination deserved the level of political controversy that it received. So how does he make sense of it?  In the end, it wasn’t all that hard.  It was those pesky unions, liberal bastions of old school bureaucratic waste; it was those pesky suburbanites, who love their public schools; and it was an “older culture-war bogeymen:” fears of “a looming theocracy.”

This is nonsense.  The fight over the DeVos nomination is not a new fight.  This is a fight at the heart of the meaning of American citizenship.  This was true in 1865.  This was true in 1964.  This is true today.

When you think about Secretary DeVos, remember DuBois: "men strive to know."  Back in 1901, DuBois could write that "opposition to human training lies smouldering, but not flaming."  The fight over the nomination of Betsy DeVos makes clear that the fight is not only flaming today, but ablaze.

Friday, February 3, 2017

On the Constitutionality of Trump’s Immigration and Refugee Ban

On January 27th, President Trump signed an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The order bars Syrian refugees from entering the United States indefinitely, and it bars refugees generally for 120 days. The order also blocks citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for 90 days. And chaos ensued. Scenes from airports across the country were heart-breaking, as people were kept from reuniting with relatives; protesters galvanized; the acting Attorney General was fired for instructing the Department of Justice not to enforce the order. There are at the moment 13 lawsuits challenging the order, with many more sure to come.

Unsurprisingly, polling on the issue breaks down along party lines. According to a recent Reuters poll, 51 % of Republicans strongly agree with the actions of their president; 53% of Democrats strongly disagreed.

One question looms large above all others: could these bans possibly be constitutional?

It depends on who you ask. The bans are either in violation of the 1st Amendment’s Establishment Clause, or else they fall within the plenary power doctrine, an area of the law that is understood to confer upon the political branches almost unfettered power, free from judicial review. 

Thinking about the question in this way, however, misses the mark. 

What do we mean when we ask whether something is unconstitutional? We generally use the term in an ontological sense, as if the Constitution exists in Platonic form and we can both decipher its meaning and apply to any situation. Thus, to the question whether the President’s actions are constitutional, we turn reflexively to the document and the prior meanings we ascribe to it. The courts need only recognize and apply these prior meanings. 

But this is not the right question. The question is not whether existing law stands in the way of the President’s actions. Rather, the question is whether the federal courts will choose to stand up to the President. If and when they do, the rest is easy. 

I am not encouraged. Think about the political context, and talks of nuclear option for the Senate confirmation process. Think also about the firing of Acting Attorney General Sally Yates, and the President’s response to the court decisions that followed his executive orders. Think about Terror. The War on Terror.

Will the court’s stand up to the President? I don’t know. What I do know is that nothing in the Constitution will help federal judges answer that question.

Thursday, January 19, 2017

Obama frees Oscar López Rivera

Early this week, President Obama commuted the sentence of Oscar López Rivera, a Puerto Rican activist serving a 70-year sentence for a variety of charges, including seditious conspiracy, that is, conspiracy to destroy or overthrow the US government.  Notable figures who supported, and sometimes lobbied very aggressively for, Mr. López Rivera’s pardon include Nobel Peace laureates Mairead Maguire of Northern Ireland, Adolfo Pérez Esquivel of Argentina and Archbishop Desmond Tutu of South Africa; Alejandro García Padilla, governor of Puerto Rico; former US president Jimmy Carter; former Democratic presidential candidate Bernie Sanders; and Lin-Manuel Miranda.  

This is a remarkable list.  But it is not unanimous.  Some commentators are angry.  According to Charles Lane, for example, "this is the Obama pardon you should be mad about."  An article on "The Federalist" argues that the pardon "trades a terrorist for votes."  And a piece in the Breitbart News Network brands López Rivera a "domestic terrorist" and labels his freedom "a cause for leftist Latinos."

The facts surrounding López Rivera's incarceration are fuzzy and very much dependent upon one's point of view.  But the basic sketch is as follows. López Rivera  was born in Puerto Rico in 1943 and moved to Chicago at the age of 14.  He served in Vietnam at the age of 18 and was awarded the Bronze Star.  Upon returning to Chicago, López Rivera became a community organizer and leader for the independence of Puerto Rico.  He eventually joined a group called  Fuerzas Armadas de Liberación Nacional, or FALN.  Ultimately, FALN claimed responsibility for over 120 bombings around the United States between 1974 and 1983, which led to 6 deaths and many more injuries.  But the bombings connected to Mr. López Rivera were those from the Chicago area, and which led to his conviction, did not result in injuries.  This is consistent with López Rivera's assertions that he focused on not endangering people's lives.  As he told the Guardian last year, “For me, human life is sacred. We called it ‘armed propaganda’ – using targets to draw attention to our struggle.”

Whatever you think of Mr. López Rivera and his past, his pardon raises a much larger question for me.  The is a question that I have thought about for a long time, as has every Puerto Rican: What is the status of the island?  There is only one honest answer to this question, irrespective of one's politics: Puerto Rico is a colonial territory of the United States.  I don't really know how else to put it.  Puerto Ricans first became US citizens courtesy of the Jones Act of 1917.  But this is a curious kind of citizenship, because it is not accompanied by political rights and representation.  It can only be described as second-class citizenship.  The island remains at the whim of Congress on issues that do not involve fundamental rights.  US citizens on the island do not have a voting member of Congress, nor are they represented in the Electoral College.  This should be inconceivable under the US Constitution.  The status of Puerto Rico and its citizenry reminds me of what political theorists label "Happy Slaves."  Consent theory and US constitutionalism fail as applied to the people of Puerto Rico.  The status of the island is indefensible.

This is not to argue that Puerto Rico should be a state, or a commonwealth, or an independent nation.  Those are much harder questions.  The question of the status of Puerto Rico as it exists today is an easy question.  Too easy.

Once we understand the status of Puerto Rico for what it is, colonial rule for a modern American audience, the case of López Rivera turns far more complex and his pardon becomes much easier to see and understand.  His case reminds me of Hamilton and the founding generation.  This is a generation that took up arms in defense of their liberty at the hands of what they deemed to be a tyrannical government.  López Rivera is following in their footsteps.  He took arms against colonial rule.  Any seditious conspiracy of which he is accused pales in comparison to what Washington and his generation did, taking arms against the King.  Think also of what the founding generation did in the hot summer of 1787, meeting illegally in Philadelphia in order to "form a more perfect union."  Can we defend the actions of the founding generation while refusing to similarly defend López Rivera?  maybe we can.  But it would not be easy.  

And most commentators are not even trying.

Wednesday, January 18, 2017

Three Lessons of "Hidden Figures"

I just saw a film that sent electric shocks through my body from beginning to end.  The film was "Hidden Figures."  The film tells the story of three remarkable African American women who worked for NASA in the post-war South and in so doing helped the United States reach space.  The film made me laugh, but also cry.  The film inspired me, but also enraged me.  Watching the film, I turned to my 12-year-old boy too often to try to explain the unexplainable.  How do you explain "Freedom Summer" and the "Freedom Rides"?  How do you explain and try to make sense of segregation and the need to walk to a bathroom half a mile away because the bathroom next to your working space is "for whites only," only to return to your desk and find your supervisor in your face because you disappeared for too long?  What do you say when your child asks you, "when did the Klan stop killing people"?

What do you say?

As I watched the film, three over-arching lessons kept racing through my mind.  The first was about the film itself and the history it depicts.  Where did these moments in history go?  Where have they been?  And how do these movies help us recover them?  The film reminds me of the early history of Reconstruction, and particularly the writings of the Dunning School.  This early history understood the freedmen as lazy, unenlightened, and undeserving of the rights that Reconstruction had granted them.  This is no longer the way we remember this period .  How do we explain this change in the historiography of Reconstruction?  This question forces us to ask more general questions: What is history? Who owns it? How do we change it?  How do we make sense of the past?

In thinking about these questions, it is important to remember Eric Foner's warning about revisionist history:
It’s hard for people not versed in history to get the point on why historical interpretation changes. In the general culture “revisionist historian” is a term of abuse. But that is what we do. Revising history is our job. So every historian is a revisionist historian in some sense.
This is what "Hidden Figures" means to me.  History is full of hidden figures.  It is important to reflect on who they are, why they are hidden, and who is hiding them.

The second lesson is about the Constitution.  Our Constitution.  The film offers a subtle lesson about the Constitution and its meaning as lived experience.  One of the three central characters in the film, Mary Jackson, wants to be an engineer yet needs to fulfill some graduate-level courses, which are offered by the University of Virginia through the local high school. The local white high school.  The year was 1961.  Brown v. Board of Education was decided in 1954.  The question whether Ms. Jackson could have taken courses at the local high school should have been settled by Brown, but it was not.  The courtroom scene is important for what it teaches us about our Constitution and the scope of our rights.  Ms. Jackson goes to court to enforce Brown, yet the judge reminds her that this is Virginia.  He ultimately allows her to go to school, but only night school.

The lesson is clear.  The Constitution is nothing but words on paper.  By itself, the Constitution means nothing, but it can mean everything.  The Constitution, those words on paper, are whatever we want them to be.  If you need an explicit example, look no further than the history of the Fifteenth Amendment.  The freedmen came to the polls in large part through the Reconstruction Act of 1867, which forced the former confederate states to allow Blacks to vote and take office as a pre-condition of rejoining the Union.  The Fifteenth Amendment nationalized what the Reconstruction Act had imposed on the South three years earlier.  This is the climax of Black political participation in the 19th Century.  Then, like a slow burn, Black voter turnout began to dwindle.  By the turn of the century, the Fifteenth Amendment had come to mean nothing.  It was a dead letter.  In some parts of the country, Black political participation had decreased by large percentages, in some places by 100%.

This is a remarkable development.  How does it make sense for Dr. King to ask for the ballot in 1957 in a world where the 15th Amendment is the law of the land?  This takes us back to the earlier question: what is the Constitution?  The Constitution is whatever we decide that it is, understood through the sweat and tears of political struggle.  Put a different way: constitutional rights are not given to us.  They never have been and never will be.  In the brave new post-2016 election world, this is a crucial lesson.  The upcoming women's march on Washington is a fitting start.  But it is only a start.

The third lesson is about talent.  And merit.  And the promise of equality.  The women in the film were clearly talented and met whatever definition of merit one wishes to adopt.  And yet, as we raced the Soviets to the moon, we cast them aside.  Racism is really that powerful.  How do we overcome it?  How do we overcome and move past years of oppression and discrimination? That is the question of our time.  But this is not a new question.  One popular conservative answer is that only our stubborn refusal to see and use racial categories will help us to overcome race and racism.  I wish I could believe that.  This is not to say that we will not get there.  It is to say, however, that we have been trying to overcome racism for generations.

Katherine Johnson, the woman at the center of the movie, did get the Presidential Medal of Freedom in 2015.

By our first Black president.  

Wednesday, January 4, 2017

Who speaks for the poor?

This election season was disappointing, to put it mildly.  Infuriating, even.  But not for the obvious reasons.  The election of Donald Trump did not infuriate me or disappoint me as much as it embarrassed me, for what I take to be obvious reasons.  The presidency always stood for something much bigger than all of us.  That is no longer true.  This is not what I want to write about today, however.

The 2016 election cycle took me back to my law school days, a time when I first came upon the Rodriguez case.  This is San Antonio Independent School District v. Rodriguez, decided in 1973.  The case challenged a Texas funding scheme for its public schools that both set a minimum funding threshold for every school in the state but also relied on local property taxes for supplemental revenue.  This reliance on property taxes led to vast and obvious inequalities among schools, since richer schools had a much more robust property tax base than poorer schools.  This was obvious to anyone who cared to pay attention.  Thus the question that reached the Supreme Court in 1972: does this obvious and severe funding inequality violate the equal protection clause, that is, the principle that all persons must be treated equally?  Put a different way: could such severe funding inequality possibly conform with the constitutional norm of equality?

This was not a crazy question, nor was it a question with an obvious answer, not in 1973 and not today.  Reasonable minds can disagree.  The three-judge panel held that the funding scheme violated the Constitution, both because wealth was a suspect class and education was a fundamental right.  This meant that the state must provide a compelling reason for its funding scheme but it could not do so.  The panel struck down the plan yet gave the state ample time to come up with a new funding scheme.  The US Supreme Court disagreed, in a 5-4 decision authored by Justice Lewis Powell, and upheld the Texas scheme. 

I remember reading the case and trying to make sense of it.  It was easy enough to make sense of the case as a legal issue.  Once the Court decided the threshold questions -- whether wealth was a suspect class or education a fundamental right -- the rest of the opinion followed as a matter of course.  There was nothing there.  But that was precisely the point.  Why in the world was wealth not a suspect class or education a fundamental right?  On the wealth issue: how could the state pick winners and losers from the moment a child steps on public school grounds?  How could such stark inequalities in funding meet constitutional norms?  On the education issue: whatever happened to Brown and its language about the importance of public education in modern society?  This was another way of asking, whatever happened to the Warren Court?

And that was the point.  The Nixon election in '68 had brought about the expected change in the Court's composition.  This is what follows when a president nominates 4 new justices in the span of four years.  This is another way of saying that elections matter.  As others have written, this is the most direct way to affect constitutional change outside the amendment process.  Nixon did that.  Faced with a chance to extend Brown to its logical resting place, or to continue the trend begun by the Warren Court to recognize wealth as a suspicious category, the Burger Court chose neither.  And poor children, whom in the Rodriguez case were mostly children of color, lost again.  No surprise there.

The Rodriguez case offers two lessons worth remembering.  The first is implied in the prior passage: judicial nominations matter and the worldviews of those who take to the bench.  Too often, we speak of courts as a faceless monolith, but doing so serves to hide the real faces and ideologies of those who make some of the most important decisions in our society.  Take Rodriguez, for example.  Earlier, I referenced the lower court panel, which sided with the plaintiffs.  What I did not say was that two of the members of that panel were nominated by President Johnson, and the third was nominated by President Kennedy.  And that matters.  These three judges read the same record facing the Supreme Court yet interpreted it differently.  Where the lower court saw the stark inequalities in the state scheme and demanded a compelling state interest in accordance with recent Warren Court cases, the Supreme Court saw the same facts and could not find "any evidence that the financing system discriminates against any definable category of 'poor' people" and concluded that "the Texas system does not operate to the peculiar disadvantage of any suspect class."  Importantly, Rodriguez was a 5-4 decision.  The Supreme Court was itself closely divided on these questions.

The question was obvious to me then, and it is obvious to me today.  I agree with the lower court in Rodriguez that the Texas scheme violates the equal protection clause.  The poor are a suspect class and education is a fundamental right.  Maybe this makes me an activist, or a liberal, or a believer in a living constitution. If so, I find myself in good company.  This is Heller, the Second Amendment case.  This is Citizens United, the campaign finance case.  This is any race case decided by the Rehnquist or Roberts Court.  So there is really no need for sanctimony.

As for the bigger question, and the second lesson in Rodriguez: who speaks for the poor?  We are asked to believe that the Republican Party, and its plutocratic flag-bearer, speak for the poor.  We are asked to believe that the party of Trump speaks for the poor.  We are asked to believe that the same man who paid no taxes, created Trump University and swindled many, and bankrupted myriad properties in order to achieve his own financial gain, speaks for the poor. We are asked to believe that Trump read Michael Harrington and found religion.  

We are asked to believe the unbelievable.  

So this is what we have left.  A few generations ago, the Democratic Party spoke for the poor and we could dream of a Great Society.  Judges appointed by Democratic presidents sought to understand the Constitution thusly, but Republican judges thwarted that effort.  Yet the Republican nominee rode that very issue all the way to the White House.  

It is hard not to be disappointed, and infuriated. 

And the question remains: who, then, speaks for the poor?