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.