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February 28, 2006

Civil Rights and Liberalism ::
books — tagged , , and
10:41 am

To me, the best book reviews are the ones that use a book as a starting-off point for a larger discussion about one of the book’s central themes. A truly great review is one that actually adds something to the book, which I wouldn’t have picked up on had I just read the book on its own. Interestingly, those reviews actually stand on their own, and are worth reading in their own right, even if I never pick up the book being discussed. Now, I don’t know if it’s an example of a great review, but yesterday I read this article on At Canaan’s Edge, Taylor Branch’s last installment of his three-part civil rights history, America During the King Years. What caught my eye about the review was how Benjamin Wallace-Wells ties the end of the King era to the problems facing Liberalism today:

King was just as right when he preached against the problems of the black slum or the repressive working conditions visited upon trash collectors as he was when he summoned a great moral awakening to confront the white Southern forces that kept blacks from voting. But the conflict between evil and good was not nearly so evident. Reading about King’s frustrated efforts, you can see where it’s headed. In hindsight, we anticipate the liberal politics that will mobilize behind the failed assumption that the country will invest in the condition of women or workers or the environment with the same moral vigor that led to the successes of King’s civil rights movements.

From my pespective, it is a rare social leader who is able to conjure up the same moral force that King was able to. Especially during this small slice of history in which I find myself. Indeed, in these times Liberals do in fact find themselves in a tough position, because they are at the same time so sure about the rightness of their position, yet have a hard time making that sense of rightness palpable to those who might not otherwise agree with them.

January 17, 2006

John Lewis ::
narrative — tagged , , and
10:40 pm

As a part of this year’s Martin Luther King Day celebration, my law school hosted an event with Congressman John Lewis (here’s a reasonable press release on my school’s site). His presentation was pretty excellent—combining a personal narrative about growing up poor in rural Alabama with his experiences in the civil rights movement in Selma and his current work as a Congressman. Throughout the speech was the constant theme of constant struggle—working for a just and fair society is not something that can be completed in a day or in a week, but rather is something we must commit our entire lives to.

I left feeling I was ready to do more work.

January 16, 2006

MLK and the Voting Rights Act ::
legal — tagged , , and
10:29 am

One of my favorite classes in law school has been a seminar on Civil Rights History, which I took last semester. For that class, I wrote a medium-long paper on the ways in which state and local governments attempted to circumvent the requirements of the Voting Rights Act of 1965. It was a fun paper to research, and in the end, though I did find that there continuned to be some problems with voting disparities that persisted after the Act’s passage, by and large the Act was quite effective at ending the grave disparities in voter registration in what were traditionally the most segregated states in the country.

I’m noting the VRA today because of the close relationship between the VRA and the efforts of the Civil Rights Movement. Martin Luther King understood that the right to vote was directly connected to the enfranchisement of African Americans in the American society, and until President Johnson signed the VRA in 1965 it was the main focus of his career. King’s efforts—as well as those of the larger movement—culminated in the march from Selma to Montgomery. But on their first attempt to march from Selma to Montgomery, the marchers were beaten by a group of Alabama State Troopers in a conflict dubbed “Bloody Sunday.” Within months after the marchers successfully completed the march, the Voting Rights Act was signed and the imbalance of democratic power in this country changed substantially.

Today, from what I have seen much of the struggle for equality and justice in American Society has shifted to other issues, including economic disparities and racial bias in the criminal justice system. And while there is much work to be done, the effectiveness of the Voting Rights Act in ending a major form of racism in American society continues to amaze me. And were it not for Martin Luther King’s work, it’s hard to tell whether American society would have decided that such a law was necessary.

January 13, 2006

Justice Who? ::
legal — tagged , , , , and
1:55 pm

I’m back at school, but I’m trying to keep this place in mind as my life gets more busy over the coming weeks. With that in mind, I just wanted to stop a moment a say that, despite my history of interest in all things Supreme Court, I have been quite uninterested in watching the Alito hearings because, barring some big surprise (which is becoming less of a possibility as time goes on), he will likely be confirmed. But with that, I also wanted to note the interesting discussions that are going on in the margins of the confirmation hearings. Case in point, Jack Balkin has this to say in his post on Constitutional Catechism:

No, the reason why this particular catechism has developed is that it reflects the views of the current dominant national political coalition about what constitutional questions are off the table for revision. The cases I have just mentioned were not always beyond question in the past, even years after they were originally decided. They were, at one point, controversial. But by the 1964 Civil Rights Act, Brown had entered the pantheon of cases that had to be correct, and one of the interesting side effects of the Bork hearings in 1987 was that Griswold had also entered that list. And we can be quite sure now, as a result of the Alito hearings that the list also extends to Eisenstadt—which extends Griswold to the right of single persons—and Reynolds.

One of the recurring themes in my legal education is the limited power of the Supreme Court in setting broad laws. So, even if the Court did rule that segregation of public education violates the Equal Protection clause, the idea that the federal government should activly pursue a civil rights agenda did not gain legitimacy until Congress passed the Civil Rights Act of 1964. In that regard, the decisions of the Supreme Court always seem to be in question until Congress somehow endorses the Court’s decision—typically through legislative action. With that in mind, it’s pretty interesting to see how Congress has progressed in its acceptance of some rather progressive—not to mention controversial—Supreme Court decisions, even those handed down within my lifetime. With that in mind, it makes me happy to see that, although the law moves slowly, it hasn’t totally stopped moving forward.

January 10, 2006

Alabama ::
travel — tagged , and
7:30 pm

Well, that was quite a week.

It’s hard for me to believe that we left for Alabama just last Wednesday. Over the past six days, Jessamyn and I saw a significant part of central and southern Alabama, including the cities of Birmingham and Pelham (day 1), Selma and Montgomery (day 3), and Tuscaloosa (day 5). We saw a lot of civil rights history, including the Civil Rights Institute and Kelly Ingram Park (my flickr photos), the Edmund Pettus Bridge and the National Voting Rights Museum in Selma (where I got one of my favorite photos from the trip), and the Civil Rights Memorial in Montgomery. We also saw much in the way of tourist traps in the state, including the Vulcan Statue in Birmingham and the Old Depot Museum in Selma.

One interesting observation about the two sets of historical destinations: I sensed that at one time there was a substantial disconnect between civil rights history and “other” history in Alabama. (That is, there was civil rights history, which was wholly distinct from economic history or, for lack of a better term, “mainstream” history.) However, those in charge of “mainstream” history seem to be making an effort to connect the two lines lines of narrative. For example, at the Vulcan Museum, which described the iron works in the city of Birmingham, one display talked about how the industry used to force convicts to work in the iron mills as part of their punishment around the turn of the 20th Century. According to the display, that practice was only challenged when the inhumane working conditions led to the death of a white worker. Although the display did not explicitly state that the practice was the result of racial discrimination, I could easily draw the inference.

And to top it all off, we had an excellent time staying with Jonathan and Julie, friends of ours who Jessamyn first met through her international network of librarians. If Jessamyn and I can make new friends each time we venture out of state, then I think that’s more than enough incentive to continue exploring different parts of the United States.

January 7, 2006

Edmund Pettus Bridge, through the window of the Voting Rights Museum ::
travel, photos — tagged , and
9:35 pm

Originally uploaded by gjs.

Another one of my favorite photos from the trip.

January 5, 2006

Kelly Ingram Park ::
travel, photos — tagged , and
6:25 pm

Statue, Kelly Ingram Park
Originally uploaded by gjs.

Part of a larger Civil Rights memorial at Kelly Ingram Park, much of which memorialized the lives of four girls who died when the 16th Street Baptist Church was bombed in 1963.

August 28, 2005

Legal Fiction on Judge Roberts and Race ::
legal — tagged , , , , and
3:36 pm

[This is just one of a few posts I’ll be making as I try to catch up in the online world after taking a break for a week or so.]

Legal Fiction has a great series of posts dealing with is reservations about John Roberts’ race record here, here, here, and here. Although Roberts was arguing many of the more controversial positions while working for the Reagan and Bush Administrations, the language he used suggests he relished advocating the racially insensitive, sometimes borderline racist, positions of those administrations.

I still don’t think that this means that Judge Roberts should be dismissed out of hand. But I think the Senate has a responsibility to ask how Roberts’ views on these topics have evolved over the years.

August 16, 2005

Constitution as suicide pact ::
legal — tagged , , , and
3:35 pm

The old phrase “the Constitution is not a suicide pact” is one of those nebulous statements that can be used to further two opposite political and legal agendas. On the one side, those who favor a cavalier retraction of civil liberties in the face of growing security concerns cite the statement to further the argument that the Constitution should not be rigidly adhered to if it means that it makes America “insecure.” But those who have reservations about the cite the statement in arguing that the Constitution—and the rights it protects—are not intended to be abandoned, or otherwise sacrificed, in the face of heightened security concerns. Indeed, we should equate placing limits on constitutional protections to the taking of a life.

To further explain this dichotomy, I found this three year old Slate piece about the two lines of interpretation. The first interpretation came from a dissent written by Robert Jackson, in a First Amendment case dealing with a hate-filled, white supremacist speech that ended in violence and and Terminiello, the defendant, being charged with disorderly conduct. The second interpretation originated from a majority opinion writted by the much more liberal Arther Goldberg.

Those who make the former argument—that the Constitution was not intended to place United States citizens in danger, or threaten law and order, the Jackson dissent, in which he argued that

[t]here is danger that, if the court does not temper its doctrinaire [First Amendment] logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

But those who make the latter argument—that we should not run roughshod over the rights protected by the Constitution at the first sign of possible danger—cite Justice Goldberg, who in a later case

raised the suicide-pact point in recognizing that the Constitution indeed granted Congress “broad and far-reaching” powers to require military service. Still, he asserted, those powers were limited and did not allow the government to yank citizenship as a penalty for draft-dodging without due process.

Great reading!

Update: James also reminds me that he talked about the Constitution as suicide pact a few years back.

August 14, 2005

Unlikely Heroes ::
books, legal — tagged , , , and
3:44 pm

This weekend, I finally finished Unlikely Heroes, by Jack Bass, which chronicles the story of Four Federal Appeals Court judges in the Fifth Circuit, who took on the daunting task of implementing the Supreme Court’s second Brown v. Board of Education decision (Brown II), which required segregated school systems be dismantled “with all deliberate speed” and authorized lower court judges to implement desegregation orders using “equitable principles.”

Such a task was not easy. On top of receiving vague orders from the U.S. Supreme Court, southern federal judges faced an complex, entrenched political system that institutionalized racism and subverted the civil rights of an entire class of people. Additionally, recalcitrant local officials—not to mention other judges—deliberately dragged their feet in following the orders handed down by the federal courts. But the judges chronicled in Unlikely Heroes overcame that challenge, and operated in a manner that was true to history, true to the Constitution, and true to their own sense of what was right. As the Author, Jack Bass, talks of Judge John Minor Wisdom, one of the committed desegregationist judges on the Fifth Circuit during the Brown II era:

But rare is the judge who possesses the knowledge of history and philosophy, commands the intellect and imagination, feels the sene of justice and moral imperative, and displays the integrity and courage that all combine in a single case to transform law and make a permanent impact on the legal process. Fate smiled when a judge named Wisdom not only transformed the law of school desegration in U.S. v. Jefferson, but provided the historical and philosophical foundation that placed it in the context of a larger issue.

Keeping in mind that the desegregation requirements in Brown would have meant very little if it had been ignored by the southern states and in the southern courts, the fact that Judges Wisdom, Elbert Tuttle, John R. Brown and Richard Rives were all sitting on the Fifth Circuit at the same time was truly providential. And while I do not diminish the ongoing racial intolerance that plagues American society, the fact that we have progressed so much from the segregated world before Brown is in no small part the result of the work done by these judges.

Finally, to bring the importance of this book into modern times: in the next few weeks, the Senate will be gearing for the confirmation hearings for Judge Roberts. Although I do not want to play down the importance of his potential confirmation to issues surrounding civil rights and constitutional law, at the end of the day, the judges and the courts that will have the most immediate effect on those rights are those who must take the high level, many times vague directives of the Supreme Court and apply them to the very specific facts of the situation they face in a particular case. It is in that scenario that the true meaning of a Supreme Court decision is truly born out. And in order for the decision to truly mean something—especially in the realm civil rights for an historically opressed class of citizens—a lower court judge must stare down the inequities and the hatered of an entire society. Doing that takes true heroism.

So, in short: don’t sell short the importance of inferior courts. In many ways they are just as important—if not moreso—than the Supreme Court.

Check out Unlikely Heroes at Powell’s.

August 10, 2005

At least one conservate group doesn’t like Roberts ::
politics, legal — tagged , , , , and
3:35 pm

For those of you hoping for signs that Conservatives will begin splitting in their support of cofirming Judge Roberts, I’m sure this will come as good news. JURIST Paper Chase and TalkLeft both report that a conservative advocacy group has pulled its support for John Roberts because he worked to protect the rights of gays and lesbians to be free of discrimination in the State of Colorado. From the Paper Chase article:

Public Advocate of the United States, a right-wing group based in Virginia, announced Wednesday that they would become the first conservative group to oppose the nomination of John Roberts to the US Supreme Court. The group is protesting his behind-the-scenes work on Romer v. Evans, a 1996 case where the Supreme Court overturned a Colorado constitutional provision as discriminatory towards homosexuals.

One of the main reasons I am not as up-in-arms as my liberal colleagues about the potential Roberts confirmation is that I’m not conviced that he will be an ideologue or a rubber stamp for the political agenda of extremist political groups. In fact, much of the evidence—such as his work on Romer—suggests exactly the opposite. I continue to believe that any personal views he may have about hot-button social issues, such as gay rights, is tempered by his commitment to the rights protected by the Constitution.

Now, regarding this new split: the next question will be whether other conservative groups will begin to follow the example of Public Advocate of the United States. Time will tell, I suppose.

Roberts and the Operation Rescue Brief ::
politics, legal — tagged , , , , and
3:17 pm

The Supreme Court Nomination Blog has a post on then-Principal Deputy Solicitor John Roberts’ brief in the case of Bray v. Alexandria Women’s Health Clinic. That’s the case that challenged Operation Rescue’s particular practice of protest at abortion clinics (called “rescues”). Abortion clinics filed suit in Federal Court under 42 U.S.C. 1985, seeking an order barring such protests.

Although the Supreme Court Nomination Blog maintains its position that it is difficult to deduce a Solicitor’s personal legal or political views from the briefs they write for the government, they also note that this case might be different:

More can be deduced, however, when the Government files an amicus brief in a case in which it has a less direct institutional interest at stake. The Solicitor General often stays out of such cases altogether and certainly does not feel compelled to participate. The decision to participate at all, thus, is somewhat informative. Moreover, because the Government has no clear institutional interest at stake, government officials have freer reign to choose the position that is most in line with their legal and/or political philosophies.

Interesting! We’re still in the land of speculation w/r/t Roberts’ views on abortion, but this is, I suppose, another data point worth noting.

August 7, 2005

The anti-fringe ::
politics, legal — tagged , , and
10:29 pm

I wanted to post something thoughtful about the new anti-fringe laws implemented by the British government after the bombings of last month, but it seems that the author of Legal Fiction has beat me to it. Although I understand the fear and desire for protection that inspired the new laws, the central problem with them is that they allow the very same government that came up with them to determine how they will be limited. such a system is ripe for abuse. Pubilus asks all the right questions:

Do we have enough trust that the government will only criminalize speech that is dangerous and won’t chill or limit legitimate dissent that is the lifeblood of a democracy? I don’t—for the same reasons I don’t trust Bush to decide who is or isn’t an “enemy combatant” to whom the Constitution doesn’t apply. And for the same reason I don’t trust America to be sole arbiter of whether its use of military force is justified. That’s what law and process are for—to check power and encourage deliberation and legitimacy. If it were possible to draw the line just right, I might be ok with it. But laws are administered by men, and these laws will inevitably be used for other purposes. When a line gets drawn, people (especially Muslims) will be less likely to express dissent for fear of being seen as approaching that line.

August 5, 2005

Suit challenging random NYC subway searches ::
legal — tagged , , and
10:34 am

New York Newsday, The New York Times, and the Paper Chase all reported yesterday on the suit filed by the New York Civil Liberties Union challenging the new random searches program implemented in the New York subway system after the London bombings of last month.

Random searches are a fascinating debate within Foruth Amendment search and seizure law. Like many other policies implemented in times of heighted worry, they do very little to protect public safety by preventing a bomb attack, while clearly violating the protections of the Fourth Amendment.

To show you what I mean by their ineffectiveness, here’s a hypothetical. Imagine, if you will, a group of determined suicide bombers. All of them attempt to enter a subway system. Police are in the subway system, performing random searches. Some of the may be captured by the random searches, some of them may get scared and choose not to entre. But, assuming they maintain their resolve, all of them stand a good chance of getting through the random search point. One bomber getting through means the security system failed. As the IRA once said,

[t]oday we were unlucky, but remember we only have to be lucky once. You have to be lucky always.

Ultimately, this lawsuit is a good thing, because it will force the city of New York to discern between those security measures that only appear to provide added security, and those that actually have the effect of preventing future attacks. So this suit is helpful not only because it protects civil liberties, but also because it will have the effect of helping make us all safer.

Here’s the complaint filed by the ACLU in the case (PDF). It contains significant amount of facts, but only an assertion that the search policy violates the Fourth And Fourteenth amendments. So the precise application of the law will, I presume, be worked out during the preliminary hearings.

August 3, 2005

More Kelo discussions ::
politics, legal — tagged , , and
6:36 pm

Today, the Capital Times has a couple of posts on the Supreme Court’s Kelo decision of last term. It’s an interesting dialogue because it shows the internal debate progressives are having about the decision. [In the interest of full disclosure, I should mention that I posted here my disagreement with Kelo on legal principle.]

But back to the Capital Times articles. Writing in favor of the decision was Michael May, State’s Attorney for Dane County. He argues that

[t]he decision is an excellent example of the court majority exercising judicial restraint, refusing to substitute its opinion of the public good for those adopted by democratically elected legislatures.

For Kelo to come out the other way would have been impermissible judicial activism. And that’s a bad thing:

It is bad enough that The Capital Times joins the post-Kelo hysteria in a manner that encourages these judicial activist conservatives to rewrite the law. But what is worse is that the actions of The Capital Times encourage local politicians to jump on the silly train.

OK, fair enough. I don’t agree with May’s reasoning, but I understand where he’s coming from. The court should exercise judicial restraint, and let the democratically elected legislatures make there decisions. Plus there is an even stronger reason to defer if the legislature is furthering a progessive agenda. But that position disregards the language of the Fifth Amendment, which is clearly more a restraint on governmental power, rather than an affirmative grant. Moreover, May’s position begs the question: what if legislatures were not furthering a progressive agenda, but were instead doing something terrible with their new Fifth Amendment “powers” under Kelo? In those instances, should the Courts intercede? Such a decision based on politics rather than legal principles results in inconsistent outcomes, and is bad for both law and politics since it so blurs the line between the two.

As I mentioned shortly after Kelo was decided, this is the problem that arises when legislatures are able to set the terms by which their powers are limited.

The second piece makes a similar argument to mine, but frames it as an issue of social fairness:

We believe it is the job of government to protect working families, farmers and small-business owners, not to serve as the “muscle” for big developers who want to force ordinary folks to sell attractive parcels of land to the highest bidder. Indeed, we cannot imagine an uglier manifestation of governmental overreach than the seizure of property that a family does not want to sell by a city that is serving as the agent for a corporation.

Really thoughtful positions on both sides. They’re definitely worth reading!

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