Balkinization  

Thursday, May 17, 2012

Brown v. Brown: The Equal Protection Clause at a Crossroads

David Gans

Today marks the 58th anniversary of the Supreme Court’s landmark decision in Brown v. Board of Education, the unanimous ruling that struck down racial segregation and restored the Fourteenth Amendment’s promise of equality. While Brown is still widely celebrated as the “crown jewel of the U.S. Reports,” the sad truth is that, on the Supreme Court these days, Brown is hardly recognizable as the landmark ruling that ended Jim Crow and struck down state-sponsored discrimination treating African Americans as inferiors. In the hands of Chief Justice Roberts and other conservatives, Brown stands as a barrier against race-conscious efforts to promote equality and foster the effective participation by all persons in the civic life of nation that was at the core of Brown. In conservative hands, Brown freezes in place, not ends, continuing racial inequality.

One of John Roberts’ first landmark opinions as Chief Justice announced this new understanding of Brown and of the Equal Protection Clause. In 2007 decision in Parents Involved v. Seattle School District, Chief Justice John Roberts, speaking for four Justices, opined that Brown’s command is “to stop discriminating on the basis of race.” In a bitter dissent, Justice Stephen Breyer, also speaking for four Justices, accused the Chief Justice of undermining “Brown’s promise of integrated primary and secondary education” and turning its back on the Constitution’s guarantee of “true racial equality – not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools.” Justice Anthony Kennedy provided the fifth vote to strike down local efforts to prevent racial isolation in schools, but rejected the Chief Justice’s rule of absolute colorblindness and agreed with the dissent that governments have the authority to act “to reach Brown’s objective of equal educational opportunity.” This fight over Brown is sure to continue next Term, when the Justices consider Fisher v. University of Texas at Austin, a constitutional challenge to the race-conscious admission process at Texas’ flagship public university. In Fisher, Justice Kennedy has the opportunity to set matters rights and demonstrate to the Chief Justice that Brown is at the core of what Justice Kennedy has called our “historic commitment to creating an integrated society that ensures equal opportunity for all its children.”

Today, corresponding with Brown’s anniversary, Constitutional Accountability Center is releasing Brown v. Brown: Will the Supreme Court Interpret the Equal Protection Clause to Invalidate Measures Designed to Promote Equal Opportunity and Redress Our Nation’s Long History of Racial Discrimination?, the newest chapter in the CAC series, The Constitution at a Crossroads: The Ideological Battle Over the Meaning of the Constitution. As we explain in the introduction to the series, focusing on a dozen or more of the most ideologically charged areas of constitutional law, Crossroads attempts to map out and describe the ideological battle on the Supreme Court over the meaning of the Constitution. (Prior chapters of Crossroads, available here, tackle the ideological division on the Court over the powers of the federal government to regulate commerce among the states, to spend money to promote the general welfare, and to enforce the guarantees of the Civil War Amendments, and over the limits the First Amendment imposes on campaign finance reform designed to ensure the integrity of our democracy.)

In just a little more than half a decade, the Roberts Court has begun to reshape basic, fundamental principles of constitutional law. From Citizens United v. FEC, in which the Court expanded the case on its own motion, scheduled a second argument, and then issued a sweeping ruling discarding prior case law, to the Affordable Care Act (ACA) cases argued in March, in which the Court decided to hear just about every claim presented to it – including claims unanimously rejected by the lower courts – and scheduled six hours of argument time over three days, the Court under Chief Justice John Roberts has put itself at the center of some of the most important controversies over the meaning of the Constitution. Decisions like the Court’s 5-4 ruling in Citizens United illustrate that the Roberts Court is not only taking big cases and issuing sweeping rulings, but it is also splitting sharply along ideological lines on important questions about the meaning of our founding document. Crossroads explains what is at stake in these battles over the Constitution.

Brown v. Brown, the first of a number of Crossroads chapters on the Constitution’s protection of equality for all persons, tells the story of how conservatives on the Rehnquist and Roberts Courts have transformed Brown and the Equal Protection Clause into a powerful weapon to limit what federal, state, and local governments can do to redress our nation’s long history of racial discrimination and ensure that the Constitution’s promise of equal opportunity is a reality for all Americans regardless of race. Insisting that an identical form of strict scrutiny applies whenever the government uses race – whether to oppress racial minorities or to assist them – the Court’s rulings since the late 1980s have limited the power of government to redress racial isolation in schools, enact affirmative action programs to assist racial minorities in overcoming the lingering effects of racial discrimination, and draw legislative districts in which racial minorities have a fair chance of electing their candidate of choice. This conservative reading turns Brown on its head and threatens to limit iconic civil rights statutes, such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965, enacted by Congress to build out and enforce Brown’s understanding of constitutional principles of equality.

The Court’s conservatives have not made any serious effort to justify this dramatic transformation of the law in the name of the text and history of the Fourteenth Amendment. Nor could they. The text of the Fourteenth Amendment provides that “no State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The Framers chose this language, providing universal coverage that protected every person residing in the United States, rejecting proposals that would have prohibited all forms of racial discrimination by the state. Indeed, the Framers recognized a basic difference between oppression and assistance. During debates over the Fourteenth Amendment, the Framers explained that the Equal Protection Clause “abolishes all class legislation” and “establishes equality before the law,” but they did not believe that laws designed to assist minorities overcome the legacy of slavery and racial discrimination were in any way legally equivalent to Southern Black Codes that oppressed the newly freed slaves.

Rather than answer this history, Chief Justice Roberts and others have turned to Brown, claiming that Brown’s lesson is that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” In Chief Justice Roberts’ hand, Brown is a potent weapon against a long list of statutes that use race-conscious measures in order to realize the Constitution’s promise of equal opportunity. That is not fulfilling Brown’s promise of true racial equality, but burying it.

David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center.


Comments:

"In conservative hands, Brown freezes in place, not ends, continuing racial inequality."

In liberal hands, Brown freezes in place, not ends, continuing racial discrimination.

So the real question has to be, which is constitutionally guaranteed? Equal results, or equal treatment by the government? Because we may just have to make up our minds which we get.
 

The text of the EPC of the 14A is quite clear - we all enjoy equal protection of the laws. There is no guarantee of equal outcomes in education or earnings, nor a guarantee of diversity

By definition, equal protection of the law prohibits state action which discriminates against one race to confer benefits to another. The language of the EPC offers no qualification of the term equal.

Because the language of EPC is quite clear - equal means equal, there is no need for the justices to engage in a snipe hunt through legilative history looking for Congress critters who believed that equal did not always mean equal.

Nearly a century and a half after the fact, it is long past time we started to fully enforce the EPC with no exceptions for any form of racial preferences and discrimination.
 

Use of cant isn't going to advance our society much here. Brett speaks of "liberal hands" when the programs he opposes includes supporters the likes of Anthony Kennedy and the U.S. military.

The programs aim for "equal treatment," which requires realizing that addressing discrimination requires some degree of race consciousness.

There is no complete "equal result" as far as I can see, though there are certain basic "equal results" (such as a right to basic education) that is a legitimate goal.

Martin Luther King Jr., who he selectively appeals to, realized this too. His "liberal hands" is a model we can follow.
 

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Our Dyslexic Duo, Bert and Brat, provide simple answers to complex questions. They are of the view that the Civil War Amendments resolved issues of race after decades of slavery. But they ignore the long history of what actually happened on the ground (and hanging from trees) following these Amendments. While our Dyslexic Duo does not directly attack Brown, and indirectly seems to accept Brown, all Brown did according to them was emphasize equal rights. But they then challenge the history after Brown to the present by attacking equal results as not the equivalent of equal rights. But how does one gain equal rights when in a deep hole? Does one have to climb out by oneself? Of course the Civil War Amendments do empower Congress to take steps to enforce the Amendments. But our Dyslexic Duo take the simpletonian libertarian low road: "Climb out of that deep hole by yourselves to gain your equal rights."
 

Joe, the US military is engaging in affirmative action, which is to say, serious efforts to find more candidates, who are then subject to objective criteria for hiring and promotion. The original meaning of affirmative action. This is understandable, because in the military not promoting incompetents is a matter of life or death, it tends to focus their attention.

What I'm criticizing is 'affirmative action', the more prevalent model in government and some parts of the private sector, where racial discrimination at all steps in the process is used to achieve predetermined numbers at the expense of merit. This, unfortunately, is the real face of "affirmative action" in most contexts, and it is nothing but racial discrimination.
 

Brett criticizes "affirmative action," which came into service long after the Civil War Amendments, and reluctantly following Brown (1954). So before this "affirmative action," does Brett admit that despite the Civil War Amendments, racial discrimination existed - and not against whites? If so, is no remediation in order with the long history of racial issues during slavery and post-Civil War Amendments years up to Brown? Ip-so-fact-o, with Brown the past was erased and ip-so-fact-o equal rights actually came into existence? The recently released demographics may be making Brett a tad nervous.
 

The military supported the stereotypical targets of Brett's liberal hands ire when colleges brought affirmative action cases to the USSC. Other "liberal hands" including Gerald Ford.

There are various meanings of affirmative action. Brett has opposed some form of diversity appeals (I won't try to define his opposition there, since it tends to be variable). As I noted before, trying to obtain diversity was in place for quite some time, in some fashion back to the start.

The "real face" of affirmative action is much more complicated than your caricatures. I use the word advisedly. The military as much as anyone else has to have some sort of goals set up when they use these "objective standards." Is it okay since they are the military and not as easily stereotyped as "liberal hands"?

I appreciate that Brett at least admits to some value to AA.
 

The chapter on "Brown v. Brown:" well describes the issues in its 13 pages, in addition to identifying the SCOTUS 4 who view a colorblind Constitution as they have adorned blinders to avoid seeing reality on racial issues.

Imagine the Court's Robing Room, whether before or after the upcoming oral arguments on Fisher v. Univ. of Texas, and this conversation:

Thomas, J. "Hey, Nino, what's the difference between a Sicilian and an African?

Scalia, J. "I don't know, Uncle T, I'm colorblind. What's the difference?"

Thomas, J. "About 60 miles of Mediterranean."

Scalia, J. "Well, your guys were not good at swimming.

Thomas, J. "Yeah, those chains were a real handicap. So we all made it to America by boat, just like you Gumbas."

Scalia, J. "But we paid our own way."

Thomas, J. "Yeah, once again the chains."

In unison:

Thomas, J. and Scalia, J.: "Isn't colorblindness great?"

Feel free to vary or extend the dialog and perhaps include Roberts, C.J. and Alito, J.
 

Let's not go there.
 

Joe:

Shag generally engages this nonsense and name calling when he is out of arguments, which on this topic started with his first post.
 

It's not clear whether our Dyslexic Duo, Bert and Brat, have actually read the Brown v. Brown chapter. The arguments on 3 sides (Colorblind 4, Kennedy, J. and the "liberal" 4) are well presented. Our Dyslexic Duo presented their usual knee-jerk comments, in effect joining the Colorblind 4 in their views. Everything is so simple, at least to our yodeler, set forth in the 14th Amendment, despite the various interpretations over the years since the 1860s, now in the 5-4 phase at the Court.

Our Dyslexic Duo added nothing of significance, which makes me doubt either of them actually read the Brown v. Brown chapter. If they had, perhaps at least one of them might have presented specific arguments on the contents of the chapter.

Our yodeler in particular, now a self-published author, has engaged in extensive name-calling and nonsense, not only during his lapdog approach to Bush/Cheney, but since their Great Recession to label Pres. Obama a socialist from virtually the beginning of his term.

I do occasionally try to engage in a little humor, which our yodeler may not appreciate. This bothers me not after years of his vileness at this Blog and others. Does Scalia, J. not like to be referred to as Nino? Is he not proud of his heritage? Scalia can wise-off during oral arguments and even in his opinions from time to time.

I'm sure Thomas, J. would not appreciate being referred to as Uncle T. But there have been many such references to him over the years. One thing is very clear about Thomas, he is no Thurgood Marshall.

So what's wrong with a little "colorblind" humor? As our yodeler said earlier"

"Nearly a century and a half after the fact, it is long past time we started to fully enforce the EPC with no exceptions for any form of racial preferences and discrimination."

So not only does he have an opthalmology problem but an ignorance or avoidance of history over that nearly century and a half.
 

I'm not a big fan of your little pet names, but noted by point and left it be; "uncle tom" business is unnecessary provocative in this context, but again, stated my position, will leave it be.
 

I can only imagine what Shag would come up with if Elizabeth Warren were a Republican!
 

mls need not imagine: if Elizabeth Warren were a Republican, looking at her accomplishments in her legal field of study, and particularly her role in addressing consumer issues and resulting legislation following the 2008 Bush/Cheney Great Recession, I would vote for a Republican Elizabeth Warren. If mls wishes to challenge or critique Warren's accomplishments in the law, perhaps he could do so at his Point of Order website and increase the traffic and comments there. (I may be the only one other than mls who checks his website periodically - and one of the few who have left comments.)

It isn't clear if mls has read the Brown v. Brown chapter. If so, perhaps he should comment on it, including the positions taken by Thurgood Marshall to compare with those of the colorblind Thomas, J. referenced in the chapter. Perhaps mls wishes to avoid commenting on David Gans' post as it might disclose his roots.

Now, if Ms Warren were a Republican AND her only claim to fame was once being featured in a magazine centerfold, I might have to take another look to see if I would vote for her.
 

According to many conservatives, affirmative action is a bad thing for anyone whose last name isn't Thomas or whose first name isn't Clarence.

If Justice Scalia dies or retires with a Republican president in office, will his successor be Joe Pesci? After all, he did a great job in the title role of My Cousin Vinnie, and his ethnic heritage is the same as Scalia's.
 

Shag- say what you will about my ethic heritage, but when you belittle my blog traffic . . . Well, that really hurts!
 

Shag:

My opening post, if you read it, rejected the premise that legislative history or contemporary practices were necessary to define the perfectly clear term equal protection of the laws.

Even if you accepted the necessity of such analysis, the example of the Freedman's Bureau is unavailing for modern supporters of government racial discrimination. The FB was set up to assist refugee ex slaves in the South and not as a racial preference for all African Americans.

The language of the EPC permits no government racial discrimination for any reason - period.
 

@ mls: What have I said about your "ethic heritage"?

As to my belittling your "blog traffic," I thought I was enhancing it; without me, who might hear the tree fall in that jungle?
 

Our yodeler remains an absolutist with his:

"The language of the EPC permits no government racial discrimination for any reason - period."

Does this mean our yodeler tosses out all SCOTUS decisions on affirmative action except those in recent years where the colorblind 4 have prevailed in 5-4 decisions?
 

Shag: Does this mean our yodeler tosses out all SCOTUS decisions on affirmative action except those in recent years where the colorblind 4 have prevailed in 5-4 decisions?

Completely and absolutely.

In this next decision, the Supremes should reverse all prior precedent approving racial preferences as Brown did the equally odious separate but equal doctrine and adopt a bright line rule holding that the EPC prohibits all racial discrimination for any reason.

Let us completely and finally erase the stain of government racial discrimination from this nation.
 

While our yodeler does not directly impugn Brown v. Bd. of Education, he seems to consider Brown the tipping point of the past injustices of slavery, Jim Crow and post-Civil War Amendments' failures on the ground to actually provide equal protection of the laws to people of color. Was this a balancing of the scales of justice with all deliberate speed? Perhaps our yodeler's "bright line" rule would have rendered the 1960s civil rights acts unnecessary and unconstitutional. Let's consider the all deliberate speed aspect of Brown. How fast and successful was that? Take a look at yesterday's (5/20/12) Sunday NYT Sunday Review section lead article "Making Schools Work" by David L. Kirp for some idea as the integration of schools following Brown. Even assuming the current Constitution is colorblind, people are not. What impeded all deliberate speed? It was people. And it continues lo these many years since Brown. Perhaps our yodeler's "bright line" is blinding, thus not seeing what is actually happening on equality and lack thereof. The 14th Amendment provides for Congress to implement its provisions as surely its provisions, especially on equality after so many years of obvious inequality pre-Brown, are not self-fullfilling.
 

"to actually provide equal protection of the laws to people of color."

See, this is the point of contention: Is it only "people of color" who are entitled to equal protection under the law? If the answer is "no", and I believe it is, then there are some serious limits to what sorts of things can be done pursuing equal outcomes.
 

So it seems that Brett would revert to the status quo of pre-Brown v. Bd. of Education, since any attempt to balance the scales for people of color on equal protection would of necessity impinge upon equal protection for whites, sort of a zero sum racial theory that might result in a caste system. What's Brett's simpletonian libertarian resolution: Pull yourself up by your own bootstraps? I think deep-down Brett feels that Brown was a tad too much constitutionally.
 

Perhaps Brett's deep concerns are revealed with his words:

" ... there are some serious limits to what sorts of things can be done pursuing equal outcomes."

What has been limiting over the centuries has been the opportunity for people of color just to get to the starting line. That limitation continues with the heavy handicaps in their just getting to the starting line especially with others who have had no such limitations. Perhaps the fear of Brett and his ilk is that creating equality at the starting line by lifting such handicaps, including by remediation, may result in outcomes (think Jesse Owens) that exceed those who had not been so burdened. (Consider how but for affirmative action post-Brown might Clarence Thomas - with thanks to Thurgood Marshall - have otherwise made it to the Supreme Court and turned colorblind.)
 

This comment has been removed by the author.
 

No one here is unaware that the government has "serious limits" on its powers. There is a debate on what they are (see, e.g., argument on torture).

No one here is unaware that "all men are created equal" etc. The point made is that the 13A & 14A was specifically addressing a certain history, particularly our treatment of "people of color."

Not that Brett would appreciate AA programs he doesn't like that assists other groups. [see Wrestling with Diversity by Sandy Levinson]
 

Speaking of things that are too white, my niece is starring in Wes Anderson's "Moonrise Kingdom". It premieres in the US on May 25. Go see it.
 

Shag:

Why do you folks who support racial discrimination always leave out the discrimination part from your arguments?

There is no such thing as affirmative action, race consciousness or simply giving assistance to people of color.

There is only racial discrimination - the government providing preferences to one group and discriminating against another based upon race.

There are only two sides to this issue - you support or you oppose racial discrimination.

No amount of spin or tap-dancing changes that reality.
 

No amount of spin or tap-dancing changes that reality.
# posted by Bart DePalma : 12:42 PM


The same is true for the reality of your racism.
 

Our yodeler's:

"There are only two sides to this issue - you support or you oppose racial discrimination."

suggests this variation:

"There are only two sides to this issue - you support or you oppose equality."

Here's a variation on my response to Brett earlier to reflect which side our yodeler is on:

"So it seems that our yodeler would revert to the status quo of pre-Brown v. Bd. of Education, since any attempt to balance the scales for people of color on equal protection would of necessity impinge upon equal protection for whites, sort of a zero sum racial theory that might result in a caste system. What's our yodeler's simpletonian libertarian resolution: Pull yourself up by your own bootstraps? I think deep-down our yodeler feels that Brown was a tad too much constitutionally."

And our yodeler's deep concerns may be identical to those of Brett that I earlier noted:

"Perhaps Brett's deep concerns are revealed with his words:

' ... there are some serious limits to what sorts of things can be done pursuing equal outcomes.'

"What has been limiting over the centuries has been the opportunity for people of color just to get to the starting line. That limitation continues with the heavy handicaps in their just getting to the starting line especially with others who have had no such limitations. Perhaps the fear of Brett and his ilk is that creating equality at the starting line by lifting such handicaps, including by remediation, may result in outcomes (think Jesse Owens) that exceed those who had not been so burdened. (Consider how but for affirmative action post-Brown might Clarence Thomas - with thanks to Thurgood Marshall - have otherwise made it to the Supreme Court and turned colorblind.)"
 

Shag:

Your patronizing attitude toward "people of color" is sickening.

To start, all human beings have color. Say African Americans when you mean African Americans.

Next, African Americans are every bit as smart as you and do not require a a helping hand of the beneficent white man to succeed.

Finally, people of all shades succeed when challenged. Giving people a bye cripples them.
 

Our yodeler might Google "people of color" for an understanding of the term, which includes African-Americans as well as other minorities not considered "white," however "white" is defined. The U.S. Government has for years addressed various races, ethnicities of those in America for various purposes. Perhaps there are some significances to be addressed for purposes of honoring the Declaration of Independence and the Constitution (at least since the Civil War Amendments).

As to challenges, the slaves (African-Americans) were challenged to escape their bonds. But only a few succeeded. One doesn't have to be a historian to know why only a few succeeded. The removal of the physical chains did not provide instant equality, considering the need for education and other necessities to succeed in life. Affirmative actions were taken by many whites since the Civil War Amendments to keep African-Americans chained not in bonds but economically and otherwise. And it was not until 1954 with Brown v. Bd. of Education that some relief was provided by way of education. But those who resented that decision took affirmative actions to thwart Brown's implementation.

Perhaps our yodeler may not recall the days when Mediterranean immigrants were referred to as "dark whites," as they were the "other" for some whites (usually Anglo-Saxon). Of course, there has been the long history of Native Americans, who are specifically referenced in the Constitution from the beginning (unlike slaves). Then we had the Chinese, particularly in California. Then there were the hoards of Mexicans. Then there were Latinos. These and other "people of color" were the "others" of many of the whites (now not only Anglo-Saxons but as a result of assimilation joined by the Mediterranean formerly "dark whites") So the issues of "people of color" is not limited to African-Americans.

I'll concede that African-Americans are just as smart as I am (and based upon our yodeler's expressed vileness, much smarter than he is). I have no fear of African-Americans or other "people of color" succeeding. And based upon the history of "people of color" in America, people like our yodeler and his ilk do not want equality at the starting line for fear that they may be the losers, so they thwart efforts for balance at the starting line.
 

Take a peek at Juan Cole's Informed Comment Blog:

http://www.juancole.com/page/2

for his 5/17/12 post "Minority Births the Majority? On how the whole idea of White People is made up."

The demographics are frightening to some.
 

Shag:

"Perhaps our yodeler may not recall the days when Mediterranean immigrants were referred to as "dark whites," as they were the "other" for some whites (usually Anglo-Saxon)."

That was a couple generations before my time. Still, my Italian family's relative melanin surplus compared with WASPs was not a reason for racial discrimination on our behalf and certainly did not hold us back.

In any case, you did not mean Italians or any of the other ethnicities or races with a natural tan complexion. You were referring to African Americans. Don't use us as an excuse for your racism.

Slavery ended several generations ago. Stop using that as an excuse for your racism.

We are all Americans entitled to being treated the same by the government which works for us - period.
 

If our yodeler bothered to check out Juan Cole's post, it seems that any nuance was lost on him. And It's not clear that he checked Google for the term "people of color," that is not limited to African-Americans. Of course we all know, or should, that assimilation of African-Americans by marriage was limited during our yodeler's lifetime, as opposed to his forbears' ability to do so. (It should be noted that his forbears had not been enslaved in America or brought here in chains.)

For some reason, our yodeler singles African-Americans, ignoring the situation of Mexican/Latino/Hispanics included in the category of "people of color." I wonder why? The fear of the demographics? The fear of competing on a level playing field?

Slavery did end with the Civil War Amendments and our yodeler seems to question why all the fuss since, as those Amendments created equality ip-so-fact-o, making Brown v. Bd. of Education unnecessary.
 

"Slavery did end with the Civil War Amendments"

De jure, not de facto. The "badges" of slavery lingered on for quite some time. Of course, the USSC in 1883 (former slaveowner dissenting) thought this was being overdone and all. The blacks must stop being given 'special favorite of the laws'

http://www.oyez.org/cases/1851-1900/1882/1882_2
 

In line with Joe's comment, consider that up until the Civil War Amendments, as textualists should readily agree, the Constitution made no specific references to slaves or slavery, which history tells us was intentional on the part of the Framers (all of whom were white and many of them slaveowners). Lysander Spooner back in 1845 in a lengthy paper made claim that under the Constitution slavery was indeed UNCONSTITUTIONAL for a number of reasons, including such lack of specificity in the document. So perhaps pre-Civil War Amendments, slavery was de facto (as opposed to de jure) lawful, time for a switch what with secession and the Civil War. So "de jure," "de facto," "Let's call the whole thing off."
 

In reading through our yodeler's revisionary comments, consider Jonathan Chait's "The Conservative Fantasy History of Civil Rights" at Daily Intel:

http://nymag.com/daily/intel/2012/05/conservative-fantasy-history-of-civil-rights.html
 

"Some of It Was Fun: Working with RFK and LBJ" by Nicholas deB Katzenbach.

Recommendation in honor of his recent death and his role in the civil rights movement. Skimming it now and it is nicely down to earth.
 

While this:

http://www.usatoday.com/news/opinion/forum/story/2012-05-11/nicholas-katzenbach-civil-rights/54907044/1

may not have been part of the fun, it had to be done. As the article points out, many today were too young to have witnessed Katzenbach's courage back in 1963.
 

Off topic, passed a review of "War Time: An Idea, Its History, Its Consequences." By Mary L. Dudziak

She has guest blogged about the concept and the book is on the side panel.

http://www.thenation.com/article/167805/enduring-condition-war-time
 

A reference is made to SL's latest and that "Constitution worshipers" should be wary. Are there religious ceremonies? Prayers?

I think Prof. Levinson goes a bit over the top with all of this. The Constitution is flawed but life is flawed.
 

I note that there were over 400 comments yesterday evening on Sandy's Op-Ed at NYTimes' website. I swept through some of them, noting a familiar echo from you-know-whom. But the variety of comments suggests that a Constitutional Convention could turn into a political Tower of Babel. While I may share many of Sandy's concerns, realism has to be addressed. Yes, the Constitution is flawed, even with its several Amendments, and, as Joe notes, so is life. As my high school and college buddy (the late Joe M.) used to say, "Halitosis is better than no breath at all." That's not "Constitutional Worship," rather survival.
 

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