an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
is in no danger of becoming a Jewish theocracy, at least of the Maimonidean
version. Maimonides insisted that members of
the Sanhedrin pull out all stops defending condemned persons. Texas prefers death row lawyers
who are good losers. The question the
Supreme Court is now considering is whether to sanction the execution of Robert L. Roberson, whose co-counsel at crucial points seemed more interested in defending themselves than their client.
Maimonides in The Book of Judges celebrates last minute reprieves for capitally sentenced
prisoners. As the condemned is being led to
execution, an announcement is made, “If there is anyone who knows a rationale
leading to his acquittal, let them come and tell us.” If anyone claims to have a rationale, the
court is reconvened and reconvened as often as any person provides a rationale
for avoiding the execution. The prisoner
gets two additional cracks at the apple.
Two scholars accompany the condemned to the execution and make
every effort to discover a reason why the execution should not be carried out. Rabbis brag about their capacity to find reasons to forestall executions.
Kretzer and James Volberding, two lawyers in Texas who represent death
sentenced prisoners, have a differently philosophy, what we might call the “old college try” theory
of criminal defense. They take a shot at
a first habeas hearing. If they lose,
then they write the prisoner a letter declaring their defense at an end. They urge their “client” to be a good sport and accept his or her fate. Unlike the sore losers at many anti-death penalty organizations,
who fight to the very bitter end, Kretzer and
Volberding inform their client that they consider it too much of a bother to consider grounds for a subsequent habeas petition or clemency. After all, a true gentleman resigns in a bad position and does not require his or her opponent to proceed to checkmate. In their efforts to ensure this gentlemanly spirit of their defense of death row inmates, Kretzer and Volberding threaten with sanctions any less supporting lawyer
who tries to pursue appeals for their “client.” Apparently, Justice Sotomayor
aside, the Supreme Court thinks that is constitutional.
the last year, Kretzer and Volberding have established new gentlemanly
standards for defending capitally sentenced persons. Volberding represented convicted murderer Robert
L. Roberson at his state federal habeas corpus hearing and failed to
investigate whether trial counsel had been ineffective during the penalty
phase, despite substantial evidence supporting such a Sixth Amendment
claim. Kretzer successfully petitioned to become co-counsel with Volberding for Roberson during Robertson's federal habeas appeal. After becoming co-counsel for Roberson , Kretzer spent substantial energy demonstrating that Volberding, his comrade in arms, had not been ineffective at the
state habeas corpus proceeding. When
Roberson unsportingly sought counsel that would represent his interests rather
than those of his lawyers, Kretzer first misrepresented the nature of his
appointment to the Fifth Circuit, claiming that he was lead counsel who acted independently of Volberding, and then sought to prevent pro se counsel from
appealing the adverse (to Roberson) decision to the Supreme Court.
Roberson has the advantage of something more than Jewish law and basic decency
on his side when the Supreme Court considers his petition for certiorari this week. Federal statutory law
requires that capitally sentenced defendants be represented by experienced
attorneys. Martinez v. Ryan (2012) mandates that convicted defendants do not
waive their constitutional rights when their counsel negligently fails
to make the appropriate argument in a state habeas corpus proceeding. Common sense dictates that an attorney
considering whether the previous representation of a condemned person fell
below legal standards not be the person who did the original
representation or the legal buddy of that attorney. As the author of the leading treatise of legal ethics in Texas declares, "Not only do [Mr. Kretzer and Mr. Volberding] appear to have had conflicts of interest, they also appear to have acted in a manner evidencing the adverse effects of those conflicts--to their client's detriment."
What the justices will do is unclear. On the bright side, the
justices do not appear to like persons who represent death row inmates. On the less bright side, the court seems to
appreciate death row lawyers who are satisfied with the old college try. If, as some of the justices believe, the
United States needs a religious revival, perhaps we might start with religious
principles for defending persons sentenced to death, at least when they
seem to receive far more support in the actual text of federal law and judicial
precedent than do other religious principles being urged upon the court Posted
by Mark Graber [link]
Soul, Self, and Society
With a little less than a year to go until Election Day, 2016, the campaign for the Presidency and control of Congress is more that heating up -- it is already in full fever. Having been treated to five full debates on the Republican side, and three on the Democratic side, with more to follow, the contours of the coming campaign are becoming clearer, even if the identity of the presidential candidate, at least for the Republicans, remains in doubt. In a recently published book, Soul, Self and Society: The New Morality and the Modern State (Oxford University Press 2015), I try to explain why the two parties line up the way they do, at least on domestic issues. My suggestion is that our society is undergoing a truly momentous social transformation -- the transition from one moral system to another.
The essence of such a transition is that some members of the society will remain loyal to the older morality, while other members will embrace the new one. No one will have any trouble identifying which of the two political parties are aligned with each of these positions. What I attempt to explain in the book is why the issues cluster as they do, and why they arouse such intense reactions, even when their direct effects are limited. To take just a few examples, the scope of federal economic regulation is entirely unrelated to same sex marriage, and yet people's positions on these issues are strongly correlated. Funding for Planned Parenthood represents an almost invisibly small portion of the federal budget, and abolishing the death penalty would only mean that a few dozen people, rather than having their lives terminated, would now be able to spend the remainder of their time in prison. Yet these issues arouse towering passions and often influence the way that people vote.
Somewhat surprisingly, neither the traditional morality that is currently declining nor the new one that is displacing it has a generally accepted name. In the book, I describe the first as the morality of higher purposes and second as the morality of self-fulfillment. The morality of higher purposes began to develop in the eleventh and twelfth centuries, as the decline of central governments in the Western World (the process that led to feudalism) was gradually reversed. At the same time, the Christian religion, which had achieved dominance by adapting itself to the sensibilities of Early Medieval warrior chieftains, became increasingly more spiritualized. The system of morality that evolved in conjunction with these developments maintained that moral action in the political sphere consisted of serving the king, or the state, and moral action in the personal sphere consisted of striving for salvation in the afterlife. The morality of self-fulfillment is the product of the previous two hundred years, the crucial turning point being the late eighteenth century. It maintains that the government should serve the people's needs and that moral action in the personal realm is to follow rules that enable each person to live the most fulfilling or rewarding life that he or she possibly can.
One reason why two such basic principles have thus far gone unnamed is that most observers have not interpreted the current turmoil as a transition between two conflicting moralities, but rather as the demise of our one prevailing moral system. From this perspective, the old morality needs no further name because it is regarded as morality itself, while the new morality deserves no name because it is not morality at all. This view, somewhat surprisingly, is not only prevalent among those who bemoan the old morality’s decline, but also among those who welcome it.
But this is not an accurate description. In the book, I categorize moral rules (for convenience) as fitting within three concentric circles: one's relation to oneself, one's relations with people one knows, ranging from intimates to friends, and one's relationship to the larger society. Within each area, the new morality of self-fulfillment imposes as many obligations on individuals as the morality of higher purposes, but they are distinctly different ones.
Whenever I read about campus agitations I am struck by the willingness of students today to enlist university officials to help them engage in protest and to protect them from any fallout. The latest example (via Paul Caron) is the case of a 2L at Ohio State Law School. The details are sketchy but the basic story seems to be thus: The 2L student published an op-ed in which she described abortion as the "number one killer of Black Americans." The column generated criticism. Somebody (allegedly another student) posted a message to the author's Facebook page which she construed as a threat. In a subsequent column entitled "Standing Up for the First Amendment" the 2L explains that in response to this Facebook message she "went to my law school administrators to express concern about my safety." The result (she says) was that several law school deans met with her and "instead of practicing tolerance for my views and simply looking into my concern . . . lectured me on how my faith-based beliefs about abortion in my writing might harm my legal career" and "picked apart my article line by line, as I sat there visibly upset and in disbelief." Now, the 2L seeks to "inspire millennial conservatives on campuses nationwide to stand up for what they believe in and to stop letting bullies silence their views and infringe upon their rights."
It is surely an odd view of the First Amendment on campus that when your speech gets some push back the appropriate response is to hurry to a dean.
To be a member of an
historically disadvantaged group is to be a member of a group with a contested
past, present and future. Americans
cannot stop talking about race, gender, sexual orientation and the like because we disagree on
how past discriminations affect the present, we disagree on what policies are
necessary to combat remaining discriminations, we disagree on what a future
world without discrimination would look like and we think resolutions of these disagreements vital for a just society. To be a member of an historically disadvantaged group, for these reasons, is to
be talked about and scrutinized far more than members of groups whose status on
campus and in society is far less contested.
The consequence is inevitable tensions between free speech and equality,
particular for those of us who think of ourselves as left-center, committed to
achieving a proper balance between values that are not entirely harmonious.
For persons on the moderate
left, affirmative action programs and the latest pronouncements from the
university diversity office are precisely the sort of matters that ought to be
the subject of intense public debate.
They are not truths from which we allow the stupid to dissent only because,
as John Stuart Mill suggested, responding their stupidity or bigotry keeps
those truths vital. Rather, numerous
issues of race, gender, sexuality, ethnicity and the like are matters on which
human reason has yet to resolve certain very fundamental issues. We may favor affirmative action and think
conservatives vastly underestimate the influence of past discriminations on
present statuses. Nevertheless, what
might be called the squishy left thinks that reasoning people might disagree on
issues as diverse as the use of race conscious measures in college admissions, the
explanations for wage gaps between men and women and the proper etiquette for Halloween
customs on campus. Debate over what costumes students should wear
is vital for the same reason debate over the best response to ISIS is
vital. Both are matters on which human
capacities and policies are likely to be improved through the interchange of
Persons on the moderate left
also recognize that debating what constitutes egalitarian policies (and how, if
at all, egalitarian concerns should be balanced against other concerns)
generates new inequalities. Given the
state of contemporary knowledge, we will inevitably be talking about some
people more than others. We ask about
the status of African-Americans in the United States for more than the status
of Norwegian-Americans because throughout American history, at the present time
and for the foreseeable future, the status of African-Americans in the United
States has been, is and will be more problematic that the status of Norwegian
Americans. We talk about the rights of
Mary and Mary’s family far more than the rights of Joe and Mary’s family because
throughout American history, at the present time and for the foreseeable
future, the status of Mary and Mary’s relationship has been, is and will be more
contentious than the status of Joe and Mary’s relationship. In short, if you are a member of an
historically disadvantaged group, the conversation at a university is far more
likely to be about your rights, including your right to be a member of that
community, than anybody else’s rights, including their right to be a member of
that community. You are scrutinized for
more than your peers because your place on campus remains far more contestable
than their place. The ultimate cause of that scrutiny may be past discriminations, but its existence is also a consequence of fair dispute over the present significance of those past discriminations.
There is no good solution to
this conflict between free speech and equality values for the simple reason
that persons of color, women, members of sexual minorities and the like will
not have equal status on our campuses and in our society until a social
consensus is reached on what constitutes equal status. Until then, all we can do is attempt to
persuade each other, understanding that the first commitment of every
university must be to the principle that human advancement is best achieved by good faith
persuasive efforts, but knowing that those efforts at good faith persuasive efforts
inevitably burden some persons more than others. Posted
by Mark Graber [link]
Wednesday, November 25, 2015
Confirmed: The Iran JCPOA ain't a treaty (or an executive agreement, for that matter)
The very practical reason the Supreme Court should decide the DAPA case this Term
The parties in United States v. Texas, No. 15-674, disagree about when Texas ought to be required to file its brief in opposition to the federal government's petition for certiorari: Texas has requested an extension until January 20, 2016. The United States, on the other hand, has asked the Court to set a deadline of December 29, 2015 for Texas's response, so that the Court can consider the petition at its January 15, 2016 Conference. If the Court were to grant the petition on January 15, the case could be argued in April without much, if any, adjustment to the ordinary merits briefing schedule. The Solicitor General has further informed the Court that if the petition-stage briefing does extend into January, and the Court does not consider and grant the petition until a Conference after January 15, he will move the Court to set oral argument for a special May session so that the Court can decide the case this Term. (The Court has heard arguments in important cases in May before--including, for example, in Raines v. Byrd, the first "Line-Item Veto Act" case, in which the Court accepted the case on April 23, 1997, heard oral argument after full briefing on May 27, and issued a split (7-2) decision on June 26.) More on the details of this timing dispute from Lyle Denniston here.
Regardless of how long an extension the Court grants Texas to file its brief in opposition, the Court should set argument in the case this Term, and decide it by the end of June 2016, for a very practical reason--one that can be seen clearly by considering the two principal, possible dispositions of the case. If, on the one hand, the Court affirms the decision of the Fifth Circuit, then the date of decision will not have had any practical impact: the status quo will continue from today into the future, whether the Court acts in June 2016 or in January or June 2017. But on the other hand, if the Court reverses the court of appeals, and rules for the federal government, then any delay in the decision will necessarily result in irremediable harms to the government and to the DAPA aliens and their families during the period between June 2016 and whenever the Court were to decide the case next Term.
As I explained here last week, the court of appeals issued a decision with a very odd, if not counterintuitive, disposition: The government is not enjoined from implementing its policy to forbear from removing the DAPA-eligible aliens from the United States--indeed, the court of appeals in effect acknowledged that Congress has afforded the Secretary of Homeland Security the broad and unreviewable discretion to implement such a removal-forbearance policy. Therefore, the DAPA aliens presumptively will not be removed, and presumably will remain in the United States, unless and until Jeh Johnson or his successor decides to remove some or all of them. However, the court of appeals also held that Secretary Johnson is effectively prohibited from authorizing employers to hire such aliens, notwithstanding a decades-old regulation that provides for such "work authorization."
This creates the anomalous situation (the SG refers to it as a "half-measure") in which more than four million aliens--all of whom by definition already have long ties to the community--will presumably remain in the United States, without substantial fear of being removed, but cannot become part of the legal workforce. Those aliens, therefore, either (i) will be unemployed--and thereby will not only be unable to support their children (who are U.S. citizens and permanent residents), but will actually impose a heavy burden on their extended families and communities--or (ii) will work "off the books," typically on a pay scale that depresses the wage market for all other employees, and the federal and state governments will then be unable to collect employment-related taxes.
Given that status quo situation, let's look at what would happen under the possible dispositions of the appeal by the Supreme Court:
If the Court affirms the judgment below, the status quo will continue indefinitely into the future (i.e., until Congress or DHS changes it): Most of the DAPA aliens will remain in the United States, but the Secretary will not be able to authorize employers to lawfully hire them. If this is the Court's disposition, then it will not have mattered whether it issued its decision in June 2016, or January 2017, or June 2017, or any other date: Throughout the entire period, and beyond, the government and the aliens will be in exactly the position they find themselves in today.
If, however, the Court reverses the judgment below, and holds that the Secretary does have the legal authority to authorize employers to hire the DAPA aliens, it will mean two things: First, well, employers will then be able to lawfully hire such aliens. But second--and more importantly for purposes of the timing question--it will mean that between today and the date of the Court's decision, the Secretary will have been denied his lawful authority to authorize such hiring, and employers and the DAPA aliens will have been prevented from entering into open, lawful work arrangements, even though (as the Court will have held in this scenario) they ought to have had the lawful opportunity to do so. In other words, the aliens will have been unemployed, or working "off the books," even though they would and should have been able to be working openly all that time, if only the lower courts had not erred. (There is another, related possibility: The Court might hold that Texas lacks Article III standing to challenge the policy and the work authorization. If so, the Court would not opine on the lawfulness of the policy, but it would nonetheless conclude that the district court lacked the authority to enjoin DHS's actions--in which case employers should still have been able to hire the DAPA aliens during the period in question, but would have been prevented from doing so.)
And so, in this second possible scenario, it matters a great deal when the Court issues its (hypothetical) reversal. If, for example, it issues such a decision in June 2017 rather than in June 2016, that will have meant unemployment or off-the-books employment of millions of aliens for an entire year, even though the law did not, in fact, compel such a situation (or, at a minimum, that there was no warrant for the trial court to enjoin the work authorization). And that, in turn, will mean the imposition of real, palpable costs for millions of families, and the government and other workers (in terms of tax revenues and wage scales)--costs that cannot be remediated.
For this reason alone, the Court should hear and decide the case this Term, regardless of what it decides about the petition-stage briefing schedule.*
One, other, related consideration is worth flagging, too: It is possible Texas will argue that the court of appeals did not go far enough: Texas might ask the Court to hold, as it alleged in its complaint, that the Secretary has abused his discretion not only in authorizing employers to hire the DAPA aliens, but also in forbearing to remove such aliens. (As I discussed last week, that removal forbearance was, in fact, the focus of the criticisms and defenses of the DAPA policy until very recently.) If Texas does seek such a disposition, then it, too, has an interest in a decision of the Court this Term, because Texas, too, will be seeking a change in the status quo. If, for example, the Court were to hold that DHS cannot forbear removal, and must continue to remove such aliens, then a decision in June 2017 will have meant an extra year of the presence in the United States of such aliens as DHS would have been able to remove in that time period.
* In its motion, Texas notes that when the court of appeals denied the government's motion to stay the preliminary injunction pending appeal, the Solicitor General did not ask the Supreme Court to stay that injunction. That earlier decision by the government, however, does not in any way affect or undermine the argument I've offered in the text: It remains true that expedition of the case would minimize palpable and irreparable harms if the Court rules for the government, whereas there'd be no downside to expedition if the Court affirms the Fifth Circuit.
In any event, the SG's decision not to seek an earlier stay from the Court is not inconsistent with his current request for the Court to decide the case this Term. For one thing, the standards for such a stay are much more demanding than the "standards" (basically, the Court's own preference) for when the case is to be scheduled for argument. Moreover, a stay would have affected what would have happened between last summer and next in a way that could have resulted in a very confusing and awkward back-and-forth dynamic: Employers would have been free to hire the aliens as of May or June of 2015, but only with the prospect that the Supreme Court might hold that such hiring was unlawful in June of 2016 or 2017--which would presumably then mean they'd have to fire those employees who had previously been hired. Posted
by Marty Lederman [link]
Khaitan on Discrimination Law
Tarunabh Khaitan’s valuable book, A
Theory of Discrimination Law, proposes a general account of a type of
law that now can be found in many countries.He proposes four conditions which are individually necessary and
cumulatively sufficient to make a norm of discrimination law: the norm should
have some connection with a ground that divides all persons between two or more
groups, at least one of whose members must be significantly more disadvantaged
in relation to members of another group defined by the same ground; and the
norm must be designed to distribute the direct substantive benefits or burdens
in question to some, but not all, members of a protected group.The book analytically disaggregates the
elements of antidiscrimination law thus defined.It also aims to specify the conditions under
which it makes sense for such a law to operate.The consequence is a work that is both analytic and normative.It is executed with admirable care.It convincingly establishes that this kind of
law is a transnational phenomenon with distinctive characteristics.
The book is impressive but somewhat frustrating.
Chapter Five is entitled “The Point of Discrimination Law.”That point, Khaitan thinks, is to make an
adequate range of valuable opportunities available to everyone.But he observes, as many commentators on
antidiscrimination law do not, that only some members of the protected group
benefit from the law.This point is worth
emphasizing.William Julius Wilson noted
long ago that both antidiscrimination law and racial preferences benefit the
black people who are best qualified, and so have been least injured by racism.(The Truly Disadvantaged 109-24 (1987).So the benefit to a limited number of people
must lead to some benefit to all the members of the group.
This benefit, Khaitan thinks, is a general elimination of
discriminatory behavior.“It is only the
cumulative effect of a critical mass of such [legal] actions, including the
deterrent effect of the threat of these actions and the internalization of the
antidiscrimination norm, which systematically connects the antidiscrimination
duty with its broader purpose of ameliorating relative group
disadvantage.”(192-93)If this broader purpose is understood, then
it is possible to dispel certain characteristically American confusions that
regard discrimination as an ordinary tort, like carelessly breaking someone’s
leg, and focusing exclusively on the intentions of the alleged
discriminator.The legitimacy of
antidiscrimination law depends on “its assumptions about a complex, dynamic,
and contested set of social facts.”(246)
This is a valuable corrective to the Supreme Court’s tendency,
noted long ago by Alan Freeman, to regard discrimination as merely "the
misguided conduct of particular actors" in "a world where, but for
the conduct of these misguided ones, the system of equality of opportunity
would work to provide a distribution of the good things in life without racial
disparities and where deprivations that did correlate with race would be
'deserved' by those deprived on grounds of insufficient 'merit.'"(Legitimizing
Racial Discrimination Through Antidiscrimination Law, 62 Minn. L. Rev.
1049, 1054 (1977).)The demand that any
civil rights claimant show that he is the individual victim of intentional
discrimination implies "that Black Americans can be without jobs, have
their children in all-black, poorly funded schools, have no opportunities for
decent housing, and have very little political power, without any violation of
Khaitan’s correction, however, does not answer Wilson’s concern.
Even if deterrence is perfect and
discrimination is eliminated – even if unconscious, discriminatory behavior is
eliminated - discrimination might not be the only reason why the group is
In the contemporary United States, for example, discrimination
is certainly one reason why so many black Americans are poor and marginalized.But another is the continuing consequence of
a long history of marginalization, the social consequences of a punitive war on
drugs, and the disappearance of industrial jobs in the rust belt. The
consequence is a self-sustaining pattern of disadvantage that itself is a
powerful driver of racism.In obstetrics
wards on the south side of Chicago right now, there are newborn boys who, we
can feel confident, will commit stupid, pointless homicides in 16 years, and
others who will be the victims of those homicides.The high crime rate among African-Americans
itself reinforces old American tropes about black male dangerousness.Stopping discrimination won’t stop this from
happening.It would require intervention
on a massive and expensive scale, of a kind that the United States today shows
no interest in.(We don’t know enough
about what kinds of intervention would work, but we’re not investing much in
the way of resources to find out.)The
conditions Freeman described in 1977 are still with us.No clarification of or change in
antidiscrimination law is likely to fix it.
I argued, in my book Antidiscrimination
Law and Social Equality, that discrimination law only makes sense as part
of a larger project of changing cultural norms to eliminate such malign
ideologies as racism and sexism.Those
ideologies, and patterns of group disadvantage, form a self-sustaining cycle,
in which each reinforces the other.Discrimination
law can only be one element of the larger project of disrupting this cycle of
reproduction of a racist social reality.It can’t do the job itself. A
theory of medical care presupposes a theory of disease.
Khaitan acknowledges this. “The antidiscrimination duty, even
when effectively implemented, is likely to make but little impression upon
relative group disadvantage, and at best prevent its exacerbation. The reason
is simple. In order to make its imposition legitimate in a liberal state, the
duty had to be action-regarding and wrong-sensitive, and limited to a small set
of duty-bearers. ... Given these limitations, its impact on abiding, pervasive,
and substantial advantage gaps between groups is likely to be small. This does
not, of course, make the duty pointless. It plays an important role in seeking
to ensure that this advantage gap does not widen. Group dominance is
self-reinforcing. If the duty just manages to resist its expansionary
pressures, it would be successful. But that merely maintains the status quo,
which is freedom-inhibiting, even as it prevents it from worsening. Unraveling
relative group disadvantage will take more than successful internalization of
the antidiscrimination duty by its bearers. It calls for a good deal of
affirmative action.” (216-7) It is for this reason that he underscores the
“importance of acknowledging the conceptual and normative continuity not only
between the prohibition on direct and indirect discrimination but also between
this prohibition on the one hand and the provision for affirmative action on
the other.” (165)But of course
affirmative action won’t end relative group disadvantage either.
Khaitan notes at the end of his book that there might be,
outside his data set, “countries that have sought to address the problem of
relative group disadvantage through tools entirely distinct from (and, perhaps,
more effective than) discrimination law.”(249)This raises a serious
question about the point of discrimination law.It may be that discrimination law aims at remedying group disadvantage,
and does so, but less effectively than other tools.If this is so, than any defense is radically
incomplete.High fructose corn syrup is
a way of preventing death by starvation.The body must have glucose, but that is not a defense of high fructose
corn syrup, because there are other ways of preventing starvation and delivering
glucose that are far healthier.Sometimes
discrimination law is the right tool for the job.Sometimes it isn’t.A theory of discrimination law ought to be
able to tell us which is which.
Next month, the Supreme Court will consider Sue Evenwel’s
bid to change the way state and local governments draw election districts.Demanding that state and local governments
across the nation change the way they draw legislative lines, Evenwel argues
that it is unconstitutional for states to draw districts based on total
population, creating districts of substantially equal numbers of people.Evenwel’s arguments—which fly in the face of
our Constitution’s promise of equal
representation for all—would undermine minority representation both in Texas,
the state Evenwel is suing, and throughout the nation.Recent events in Yakima, Washington, provide
a good example.
The town of Yakima—an agricultural community 140 miles east
of Seattle—is forty percent Hispanic, but, until this year, had never elected a
person of Hispanic origin to the town’s city council.This year, a federal district court held that
Yakima’s at-large system of elections for city council violated the Voting
Rights Act by denying Hispanic voters an equal opportunity to elect their
candidate of choice, and ordered the town to draw single-member districts
composed of substantially equal population.Earlier this month, in elections
held under these court-ordered boundaries, threeHispanic candidates won election to office, ending the exclusion of Hispanics from
But the town of Yakima is now using every avenue to undo
these historic gains, claiming—as Evenwel does—that the Constitution does not
permit state and local governments to draw districts composed of substantially
equal numbers of people if those districts do not contain approximately the
same number of eligible voters.Yakima
argues that the Hispanic voters’ claim under the Voting Rights Act should be
dismissed because creating single-member districts in order to make it possible
for the Hispanic community to elect its candidate of choice would result in
“severe malapportionment of eligible voters.” Represented by defense counsel in
the Voting Rights Act litigation, Yakima has even gone so far as to file an amicus
brief in the Supreme Court supporting Evenwel’s attack on the principle of
equal representation for equal numbers of people.
As this example illustrates, Evenwel’s far-reaching
arguments, if accepted by the Court, would not only wreak havoc with our democracy,
requiring states to change the way they draw district lines, but it would also
make it harder to draw election boundaries that ensure that racial minorities have
an equal chance to elect representatives of their choice.Evenwel’s argument would undermine the
protections afforded by the Voting Rights Actand take political power away from
urban population centers where racial minorities overwhelmingly live, giving
it to whiter, more rural areas.This is no
accident.Ed Blum—the mastermind behind Evenwel’s
case—wants to stop
states from creating majority-minority districts
that help ensure equal political opportunities for all regardless of race.Denying equal representation to unnaturalized
immigrants, children, and others who lack the franchise won’t alone accomplish
Blum’s goal, but it would make it harder to draw election boundaries that
ensure that minorities have a fair chance at the polls.Among the losers—if Blum succeeds in
eliminating the guarantee of equal representation for equal numbers of
people—will be racial minorities in places like Yakima, who will, once again, find
it harder to have their voices heard.
David Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center and a co-author of CAC's brief in Evenwel v. Abbott. This post is cross-posted at Text and History.
Congressman Aedanus Burke is not a household name, but during the First Congress he contributed something distinctive to legal discourse by criticizing Madison's proposal for what became the Bill of Rights as "a tub to a whale." What Burke meant was that the amendments were meaningless, just like the wooden tub that a crew would throw into the water as a decoy to direct whales away from a ship.
While Burke turned out to be wrong about importance of the first set of amendments, I have been reflecting lately (as part of my next book) on how the constitutional construction of the Bill of Rights acts as a distortion or a distraction comparable to a tub to a whale. The Constitution does not say that the first set of amendments are a bill of rights. Furthermore, that term was not commonly applied to those amendments until long after the Founding, and even then there was disagreement about if the first eight, the first nine, or the first ten were the Bill of Rights.
Now an obvious question here is, "Well, what's the harm of calling some part of the first set of amendments the Bill of Rights?" One possible answer is that the exclusion of the Reconstruction Amendments from that category places too much emphasis on the Founding and not enough on what happened after. The focus on the Bill of Rights during the early twentieth century occurred while Jim Crow was firmly entrenched, and thus prior to, say, 1950 thinking of the Fourteenth Amendment as part of the Bill of Rights was impossible. Nothing prevents that sort of redefinition now, of course, but constitutional inertia can be powerful. FDR tried to get around this problem by pitching the idea of a "Second Bill of Rights" that protected economic equality, but that slogan never caught on.