The Nixon Pardon As a Constitutional Rorschach Test

Gerard N. Magliocca

The next time I teach Constitutional Law I plan to use President Ford's pardon of Richard Nixon and Ford's speech defending the pardon as an introduction to some themes in the course. Ford's pardon is a great way to consider the exercise of constitutional discretion. Everybody agrees that Ford was authorized by Article II to pardon Nixon. But was that the right choice?

Ford's pardon raises two starkly different accounts on the rule of law. One is that the pardon was wrong because the failure to hold Nixon criminally accountable for his misconduct undermined the rule of law. The other is that the pardon avoided a divisive trial that would have damaged the rule of law in the eyes of many people (at least this is what Ford said).

Your view on Ford's pardon is probably correlated with your view of what should happen to Donald Trump. If you think that the pardon was correct, then you would be less inclined to think that Trump should be prosecuted. If you think that the pardon was incorrect, then you would be more inclined to think that Trump should be prosecuted.

You can watch Ford's speech here. Happy New Year!

LevinsonFest on Voting Rights Collected Posts

Guest Blogger

Ashley Moran

Below are collected posts on the LevinsonFest 2022 roundtable on voting rights.

1. Ashley Moran, LevinsonFest on Voting Rights

2. Joseph Fishkin, From Baker v. Carr to Bush v. Gore with Sandy Levinson

3. Pamela S. Karlan, Rights, Structures, and Our Undemocratic Constitution

4. Alex Keyssar, Sisyphus and Lingering Whiggishness: A Few Semi-Random Observations

5. Nicholas O. Stephanopoulos, Proportional Representation—Brooding and Omnipresent to the End

6. Ciara Torres-Spelliscy, Dark Money in Florida Politics Highlights where Professor Levinson was Right

7. Sanford Levinson, Comments on the LevinsonFest Voting Rights Panel

Ashley Moran is a Lecturer and Postdoctoral Fellow with the Comparative Constitutions Project at UT-Austin and Distinguished Scholar with UT’s Robert Strauss Center for International Security and Law. You can contact her at ashleymoran@utexas.edu.

Comments on the LevinsonFest Voting Rights Panel

Guest Blogger

This post was prepared for a roundtable on Voting Rights, convened as part of LevinsonFest 2022.

Sanford Levinson

First I must express my continued thanks to the persons actually behind this remarkable project, Richard Albert, Ashley Moran, and Trish Do. And my thanks also to Jeff Tulis for moderating this particular gathering. Quite obviously, my deepest thanks as well to the participants. As I said at the outset of the Zoom gathering—and on other Levinsonfests as well—I very much feel described by the old Sesame Street staple, “Which of these things (or persons) does not belong with the other?” Throughout my career, I have been privileged (and tolerated) in being able to flit among quite a few different fields, but I hope that I’ve never confused myself with those who have genuinely mastered any of the given areas that I have been allowed to invade. I am certainly interested in the broad area of voting rights and have accepted every invitation to any symposium that has invited me to participate and to write something relevant to the topic. But that does not in fact add up to deep scholarly expertise of the kind instantiated in those who honor me with their presence. So I’m especially pleased to read (and to comment) on what they had to say and grateful, of course, to Jack Balkin for continuing to open Balkinization to the material produced during these “Levinsonfests.” 

Nick Stephanopoulos opens his contribution by reference to my “influential 1985 article, Gerrymandering and the Brooding Omnipresence of Proportional Representation: Why Won’t It Go Away?” 33 U.C.L.A. L. Rev. 257 (1985) published as part of a symposium (of course) on voting rights. Pam Karlan also hones in that piece from long ago, as does Joey Fishkin. I confess that I’ve never had the sense that it has been “influential, though I’m quite surprised to discover that it has apparently been cited 111 times. But perhaps that touches on how one measures “influence” within the sometimes strange world occupied by legal academics. For whom, after all, do we write and hope to influence?

Dark Money in Florida Politics Highlights where Professor Levinson was Right

Guest Blogger

This post was prepared for a roundtable on Voting Rights, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Ciara Torres-Spelliscy

“There is no such thing as a perfect electoral system, any more than there is a perfect political society.” said Professor Sandy Levinson on November 7, 2016. But surely we can do better than what has happened recently in Florida elections with dark money funding bogus candidates to trick voters.

Because of Florida’s most famous resident, a petulant ex-president with a mounting list of legal problems, the press has largely missed a slowly unraveling scandal in Florida’s state elections. The local press has dubbed this the ghost candidate scandal.

The scandal broke through after the 2020 election, when Republicans in the state got caught running bogus no-party-affiliated candidates to help the election of certain Republicans, especially in the Florida Senate. But the practice of running these fake/bogus/insincere/charlatan/ghost candidates happened in the 2018 election too. It’s possible this underhanded practice goes back even earlier.

This may partially explain why the Florida legislature is so tilted towards Republicans when the Florida voting population is nearly evenly split between Democrats and Republicans. According to Pew in 2020: “Democrats and Republicans now make up similar shares of Florida’s registered voters (37% and 36%, respectively)[.]” In the Florida legislature 23 of 40 senate seats are held by Republicans and 76 of 120 house seats are held by Republicans.

Proportional Representation—Brooding and Omnipresent to the End

Guest Blogger

This post was prepared for a roundtable on Voting Rights, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Nicholas O. Stephanopoulos 

Like Pam Karlan, I want to say a few words about Sandy Levinson’s influential 1985 article, Gerrymandering and the Brooding Omnipresence of Proportional Representation: Why Won’t It Go Away?. Sandy wrote this piece before the Court decided its first partisan gerrymandering case in 1986. Sandy nevertheless anticipated one of the central themes of the Court’s partisan gerrymandering jurisprudence—a concern that eventually helped to doom the cause of action in 2019. This concern was that, if the Court recognized partisan gerrymandering claims, it would eventually be compelled to impose proportional representation on American legislatures. Only proportional representation, went the argument, ensures fairness for partisan, racial, and other political groups. As Sandy put it, proportional representation is “the only political system that offers substantively equal promise to participants in electoral struggles.” 

However, proportional representation (supposedly) has its own flaws that make it an unattractive candidate for judicial (or other) imposition. One problem is that it typically requires multiple parties to ally in the legislature to create a governing coalition. This feature “makes it practically impossible for a strong government to be formed out of the congeries of political parties, each organized around a narrow base of issues.” A second defect is that parties under proportional representation often get to choose their own slates of nominees, without any popular participation. Granted this discretion, parties tend to “pick[] their slates more in response to the imperatives of internal party politics than by consideration of something so abstract as the public good.” And third (and stemming from the second flaw), proportional representation is said to change the political culture for the worse—so that it fixates on political parties instead of nonpartisan virtues like civic republicanism. Per Sandy, it’s “hard to imagine anyone sympathetic to the republican ideal endorsing an electoral scheme that . . . relies on institutionalized parties even more than does the single-member district system.”

Sisyphus and Lingering Whiggishness: A Few Semi-Random Observations

Guest Blogger

This post was prepared for a roundtable on Voting Rights, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Alex Keyssar 

Although I am not a legal academic (or even a lawyer), I have for years been a consumer of Sandy’s writings. (Or at least a portion of them; I think he writes faster than I read.) I have counted on him to offer a forthright (and sometimes curmudgeonly) take on matters I care about, to probe beneath surfaces, discern inconsistencies and pursue implications—all with his trademark blend of learning about constitutional law, political theory, and American history. For that, I can only thank him. 

Since I’m ill equipped to comment constructively on Sandy’s legal views, I’m going to slip into the guise of an intellectual historian—or even literary critic!—and focus my brief remarks on a tension that I think runs through many of his writings, a tension that may be common to democracy scholars of our generation (and even those a bit younger). That tension could be characterized simply as “optimism” versus “pessimism,” but those labels are too flaccid. It is also a tension between mind and heart, between the perception that our political problems (and the legal and intellectual problems that accompany them) may resist solution and the hope—with a hint of Whiggishness—that things will improve and work out alright because they always have in America. In Sandy’s work, that has yielded a recurrent and characteristic authorial stance: “the critic as Sisyphus.” 

Let me explain – or at least elaborate a bit. Sandy’s intellectual posture in his writing (or at least the writings that I know) is invariably that of the rigorous, unyielding critic: of received wisdom, widely accepted interpretations and proposed solutions to thorny problems (not to mention Scotus decisions). In “One Person, One Vote: A Mantra in Need of Meaning,” for example, he concluded that we don’t have a clear idea how that popular mantra applies to all circumstances, leading (among other things) to some incoherence and inconsistency in the drawing of legislative district boundaries. More than a decade earlier, he pointed out that we lack a cogent conception of who should belong to the “community” of voters – even puckishly suggesting that it might make more sense to have loyalty oaths than to rely on the purely formal category of citizenship. Similar issues are broached in “Who Counts?” “ Sez Who?” (2014). In each of these articles he illuminates inconsistencies of both theory and practice, as well as the absence of practice grounded in widely accepted principles.

Draft Symposium Essay on Section Three

Gerard N. Magliocca

"Background as Foreground: Section Three of the Fourteenth Amendment and January 6th" can be found here. I will update the draft after the January 6th Report is released. In the meantime, Happy Holidays!

Rights, Structures, and Our Undemocratic Constitution

Guest Blogger

This post was prepared for a roundtable on Voting Rights, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Pamela S. Karlan[1] 

On the eve of the Supreme Court’s hearing Davis v. Bandemer, 478 U.S. 109 (1986), the case where the Court launched its now-abandoned effort to articulate judicially enforceable limits on political gerrymandering, Sandy Levinson published Gerrymandering and the Brooding Omnipresence of Proportional Representation: Why Won’t It Go Away?, 33 U.C.L.A. L. Rev. 257 (1985). There, in characteristically clear language, Sandy explained that “the only thing clear about constitutional meaning in regard to representation is that it is unclear.” This disarray, Sandy suggested, “depend[ed] on whether one gives priority in one’s political theory to rights or structures.” If one were to focus solely on rights—such as the right to cast a ballot and, in the words of the Voting Rights Act “hav[e] such ballot counted properly and included in the appropriate totals of votes cast”—Sandy explained that constitutional values of “fair and effective representation” (the phrase from Reynolds v. Sims, 377 U.S. 533 (1964)) might “require[e] something radically different from the present system.” Single-member geographically based districts, with their winner-take-all character inevitably waste large numbers of votes (all the votes cast for losing candidates) and fail to effectively represent groups that are geographically diffuse. At-large elections are even worse along this dimension. Moreover, a rights-based theory focused on electoral inputs ignores the central fact that voting is a means to an end and that end is decisionmaking within representative bodies. Sandy emphasized that although Reynolds had used soaring individualist rhetoric, it had also rested on the idea of democratic majoritarianism. Thus, Sandy explained, a pure rights-based theory might require some method of proportional representation for electing candidates. 

But, Sandy continued, rights are not everything. Structure matters as well. We might decide to reject proportional election systems because those systems could “create a political structure that would make the maintenance of other central constitutional values more difficult.” They might produce political instability, or deny voters the ability to elect the candidates they prefer. More profoundly, because “electoral systems inevitably help to shape the character of the purported individuals who constitute the polity,” the single- and narrow-issue political parties that a proportional system might produce could cause citizens to think in a more partial and single-issue way across their interactions with one another. 

At the end of the piece, Sandy seemed to adopt the position that the judiciary was not “the best body to cure the discomfort, especially if one doubts that it can be removed with only narrow surgery.” But his “skepticism about the propriety of courts getting involved in assessing the substantive fairness of gerrymanders” hardly left him satisfied with “the way we have chosen to structure our political institutions.” To the contrary. Scholars, citizens, and legislatures might have a duty to seek “significant structural reform” to the electoral process. Much of Sandy’s work over the past two generations has taken up that duty. Works like Our Undemocratic Constitution have powerfully shaped how we think about the profound flaws in our current constitutional structure.

Should Progressives Embrace Originalism?

Andrew Coan

A Mixed Bag in the Year-End Fiscal Legislation

David Super

     Congressional negotiators just made public their year-end fiscal legislation.  The bill, which likely will pass on Friday, addresses the fiscal year that began October 1 and, in some instances, future years.  House Republicans early on made clear their disinterest in this project so negotiations involved the four forces whose approval legislation requires:  the House majority, the Senate majority, the Senate minority, and the President.  On some key matters, negotiators were unable to agree, leaving difficult issues unsettled indefinitely.  On a surprising number of matters, however, they found compromises.

     The core of the package was appropriations for federal fiscal year 2023.  Had negotiators failed, the result would be a year-long continuing resolution (CR) freezing programs at current levels without adjustment for inflation.  With full-year CRs highly likely in each of the next two years – and possibly longer if divided government continues beyond 2024 – getting discretionary programs necessary funding adjustments was rightly a top priority for Democrats.  (The largest domestic programs – including Social Security, Medicare, and Medicaid – receive funding under permanent legislation, some of which includes inflation adjustments.  But the much more numerous programs that depend on annual appropriations –

from the EPA and the National Park Service to the TSA, air traffic control and the administration of federal benefit programs – could seriously erode under a nominal-dollar freeze, reducing key services and conveying an impression of governmental incompetence.) 

     In the end, eleven of the twelve annual appropriations bills were rolled into omnibus legislation to receive funding increases.  The Pentagon will receive the largest increases, but domestic and international discretionary programs also will benefit.  Final cost estimates should become available late today or tomorrow. 

     The one exception was the appropriations bill for the Department of Homeland Security.  Negotiators could not reach agreement on immigration-related riders Republicans sought.  As a result, Homeland Security and related functions will be subject to a full-year continuing resolution at frozen funding levels.  New funding for DHS could have supported both positive and troubling activities.

     Several other pieces of legislation will be attached to the omnibus appropriations bill.  Some of these, such as reform of the Electoral Count Act, will no doubt be addressed by experts in those fields.  I will confine myself to matters focusing on low- and moderate-income people. 

     Funding for public benefit programs in the territories has been chronically inadequate throughout this country’s history, a remarkable example of lingering de jure discrimination against a population 98% composed of people of color.  (I am about to submit a law journal article on how to understand this disparity.)  The omnibus does not remotely repair this deficit, but it does provide substantial new money for Medicaid in Puerto Rico over the next five years while providing permanent increases for the other territories.  Some aggressive moves by the Biden Administration to bolster Puerto Rico’s funding unilaterally appear to have provided needed leverage.

     Republicans long have complained that the Biden Administration has continued the pandemic-driven temporary expansions of Medicaid and nutrition assistance programs too long.  Although an end to these measures was expected during 2023, Republicans wanted to legislate this end badly enough that they agreed to permanent, structural improvements to programs in both areas in exchange for a date-certain end to the temporary measures.  The estimated savings from an early end to the temporary expansions also provided fiscal offsets making the permanent improvements possible.  Over the medium- and long-term, these improvements will bring much more aid to low- and moderate-income people than the benefits lost by accelerating the end of the pandemic measures. 

     Among the improvements are permanent “continuous eligibility” for children in Medicaid.  This will prevent children from losing eligibility due to often-temporary increases in their family income over the course of a year.  The legislation also will make permanent a version of the highly successful pandemic program providing children food during summers when school meal programs are closed.  The existing Summer Food Service Program for Children serves only about one in seven eligible children due to difficulties securing sponsors. 

     Missing from the legislation is any improvement in the Child Tax Credit, which significantly reduced child poverty during the last half of 2021 under a temporary expansion in the American Rescue Plan Act.  Although Democrats dramatically reduced what they were seeking, Republicans refused even to negotiate on a tax package.  As a result, various tax breaks that business interests had sought – and that children’s advocates insisted should only move in tandem with a partial restoration of the Child Tax Credit expansions – also were not included.  If children’s advocates can maintain the link between corporate tax breaks and the expanded Child Tax Credit, business interests may pressure the new House majority into making the concessions that Senate Republicans rejected this time. 

     Unfortunately, negotiators did agree on largely regressive retirement savings changes that will funnel more money to the affluent while doing little for low- and middle-income people who can face serious struggles during retirement.  Democrats have trouble resisting even badly-designed retirement proposals.

     Overall, this is a surprisingly good package, even if it falls far short of what many progressives had hoped to achieve.  This is the most that could be expected with a rapidly expiring House Democratic majority and just 47 Democrats in the Senate (along with two Independents who are fairly reliable and one who is decidedly less so). 

     The next two years look to be unusually unproductive legislatively, with House Republicans likely too divided, too partisan, and too dependent on their most extreme Members to make deals even on highly favorable terms.  Senate Republicans knew that and drove a hard bargain.  Still, the improvements are real and will be lasting.  This deal was more than worth doing. 

     The next two years likely will be consumed with responding to extremist House Republicans’ attempts to weaponize threats of a government shutdown (blocking appropriations for 2024 and 2025) or a federal government default (blocking increases in the debt limit).  If President Biden proves as weak a negotiator as President Obama was, this could result in serious, lasting harm to government’s ability to meet basic human needs.  On the other hand, if he stands his ground in insisting that these measures are basic obligations of whomever is in power, we could see a lasting move away from brinksmanship and crude extortion in the federal government. 

     Although theoretically Democrats could have tried to raise the debt limit through budget reconciliation during this lame-duck session, that was never a realistic prospect.  Any attempt to do so would certainly have ended all negotiations with Senate Republicans over the important gains in the omnibus appropriations bill.  It also might have failed if Sen. Sinema had defected.  And ultimately, it should be unnecessary. 

     House Republicans have had no qualms about increasing the deficit and raising the debt limit when Republicans were in the White House.  Democrats resisted foolish advice to hold the debt limit hostage even when the cause of rising debt was the egregious Trump tax cuts.  This ought to provide more than enough leverage for the President to cast blame on House Republicans for any partial government shutdowns and for him again to mobilize business leaders to warn Republicans off flirting with default over the debt limit. 

     @DavidASuper1

From Baker v. Carr to Bush v. Gore with Sandy Levinson

Guest Blogger

This post was prepared for a roundtable on Voting Rights, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Joseph Fishkin

Most writers and scholars (perhaps most people in general?) tend to believe that a really good argument is one that has a strong thesis and captures the complete truth of the matter—or, failing that, is at least truer than all available alternatives (the first-past-the-post theory of how to win an argument, if you will). This debate-like approach to scholarly writing is common in many fields, but it might be especially common in law because of some central practices and norms of law. Courts need to resolve cases one way or the other; lawyers write briefs explaining how right their side is and how wrong the other side is. All this helps bolster one idea of what a good argument sounds like. 

One of Sandy Levinson’s virtues as a scholar, writer, and person, is that he’s less than indifferent to this idea of what scholarship is about. He often wants to provoke his readers to rethink their assumptions, to consider seemingly heretical claims and arguments, and/or to see the multi-layered, sometimes internally contradictory, usually imperfectly-thought-out nature of the conceptual foundations of whatever area of law he is writing about. (His occasional self-deprecating self-identification as a “crank” is a disarming way of facilitating this relationship with a reader or interlocutor: it invites readers to consider what he is saying without focusing too much on whether they fully agree.) To me, as a reader, admirer, and friend, this makes Sandy’s work more absorbing and generative than a lot of scholarship, and perhaps also a bit more honest.

Nozick vs. Kant on libertarianism

Andrew Koppelman

Robert Nozick’s Anarchy, State, and Utopia (1974) is the most important scholarly work of libertarian philosophy.  Published just three years after John Rawls’s A Theory of Justice, it appeared at an opportune political moment.  It immediately became the most prominent foil to Rawls, who was widely understood to offer a social contract theory that justified a redistributive welfare state.  Nozick’s book is beautifully written and fun to read.  (A lot more fun than Rawls’s dry-as-dust prose.)  Its style is exciting and digressive, constantly darting off on interesting tangents.  Nozick must have been marvelous in the classroom.

It is not generally understood how much Nozick owes to a far lesser-known thinker, Murray Rothbard.  Tracing that connection, and particularly Nozick’s attempted deployment of Kant to shore up the holes in Rothbard’s philosophy, reveals that Anarchy, State, and Utopia is massively overrated, its claims unsalvageable. 

I explain at the Los Angeles Review of Books Philosophical Forum, here.

The January 6th Committee's Criminal Referral on Insurrection

Gerard N. Magliocca

While the full report of the Select Committee is still not public, we do know that the Committee referred to the DOJ recommendations for criminal charges against Donald Trump. One of those criminal referrals involves incitement or engagement (among other things) of "insurrection."

Let me just clarify two things. First, neither this referral, nor a subsequent prosecution and conviction for insurrection, is necessary to conclude that Donald Trump is barred from serving again as President under Section Three of the Fourteenth Amendment. The evidence and legal analysis in the report supporting the referral, though, will be useful for election officials, litigants, and courts that must address that issue next year. Second, the referral does not "trigger" Section Three as some media reports are suggesting. Section Three was triggered on January 6th, 2021.

I'll have more to say when the full report is released.  

Balkinization Symposium on Tanya K. Hernández, Racial Innocence-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Tanya K. Hernández's new book, Racial Innocence: Unmasking Latino Anti-Black Bias and the Struggle for Equality (Beacon Press, 2022).

1. Jack Balkin, Introduction to the Symposium.

2. George A. Martinez, Racial Innocence: Latino Bias, Reality Construction and the Epistemology of Ignorance.

3. Rhonda Reaves, Anti-Black Bias and the Allure of “Whiteness”.

4. Berta Esperanza Hernández-Truyol, Real Life Awakenings – Debunking Latines’ Racial Innocence.

5. Catherine Powell, Afrofuturism Blues in an Age of Racial Innocence.

6. Gerald Torres, On Racial Innocence.

7. Darren Lenard Hutchinson, Unmasking the Complexity of Race.

8. Linda C. McClain, Social Distance, Social Reproduction, and Dismantling “Latino Anti-Black Bias”: A Comment on Tanya Katerí Hernández, Racial Innocence.

9. Tanya Katerí Hernández, James Baldwin and Latino Racial Innocence.

LevinsonFest on Voting Rights

Guest Blogger

Ashley Moran

We’re pleased to share a timely and thought-provoking set of essays from our recent LevinsonFest 2022 roundtable on voting rights. The roundtable includes essays from Joseph Fishkin (UCLA), Pamela Karlan (Stanford University), Alex Keyssar (Harvard University), Nicholas Stephanopoulos (Harvard University), and Ciara Torres-Spelliscy (Stetson University), as well as a response from Sandy Levinson (University of Texas at Austin).

The event recording is also available on the Voting Rights Panel webpage. We hope you enjoy the discussions!

Ashley Moran is a Lecturer and Postdoctoral Fellow with the Comparative Constitutions Project at UT-Austin and Distinguished Scholar with UT’s Robert Strauss Center for International Security and Law. You can contact her at ashleymoran@utexas.edu.

Deneen and Vermeule on liberalism

Andrew Koppelman

I’m a liberal who takes conservatives seriously.  A lot of the work I do aims to engage respectfully with conservative thought.  I try to stay open to the strongest arguments on the other side.  For instance, when I wrote Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed, a critique of libertarianism, I was surprised to find that I had more sympathy for some of Hayek’s arguments than I had expected to.

So when the Notre Dame Law Review invited me to a conference on “Liberalism, Christianity, and Constitutionalism,” I was happy to have the opportunity to engage with the most prominent contemporary Christian critics of liberalism, Patrick Deneen and Adrian Vermeule.  My forthcoming paper is now on SSRN.

The engagement was disappointing.  I have written about my admiration for some of Vermeule’s earlier work, but their critiques of liberalism – more sustained in Deneen than in Vermeule – do not rise to that standard.

Both of them claim that liberalism’s relentless logic tends to destroy communities and traditions.  Their descriptions of liberalism are distorted.  The allegations of logic and inner necessity promise that we will be given some account of the alleged mechanism.  The language of historical inevitability is reminiscent of Marx.  He however developed a detailed, articulate account of the alleged inner logic of capitalism, in order to show that it would inevitably alienate and immiserate the working classes.  Marx turned out to be wrong.  But at least one could tell what he was claiming.

James Baldwin and Latino Racial Innocence

Guest Blogger

For the Balkinization symposium on Tanya K. Hernández, Racial Innocence: Unmasking Latino Anti-Black Bias and the Struggle for Equality (Beacon Press, 2022).

No writing on race today should ever be done without 1) considering the work of James Baldwin, and 2) being in meaningful conversation with the contemporary scholars you respect.  I am honored that this book symposium enables me to do both. I wish to express profound gratitude to Jack Balkin and Linda McClain in organizing the book symposium and to all the participants for their generosity of time in carefully assessing what Racial Innocence has to offer. 

It was exactly 60 years ago, that Baldwin articulated the concept of racial innocence in his essay “A Letter to My Nephew” in The Progressive Magazine, and later included it in his seminal book The Fire Next Time. In it he observes:

[T]his is the crime of which I accuse my country and my countrymen  . . . that they have destroyed and are destroying hundreds of thousands of lives and do not know it and do not want to know it . . . but it is not permissible that the authors of devastation should also be innocent.  It is the innocence which constitutes the crime.

Racial Innocence extends the Baldwin insight to examining how people of color themselves commit the crime of racial innocence.  The Latino community serves as the case study for the book. Blogger Gerald Torres importantly questions whether racial innocence is more a reflection of disingenuity than of true innocence. Like Baldwin, I do not believe that the two are mutually exclusive when innocents “do not know and do not want to know” how they are implicated in systems of oppression. Admittedly, constructing and maintaining the mindset of racial innocence in a world of evident racial disparities certainly entails concerted effort. Blogger George Martinez aptly characterizes this as an “epistemology of ignorance.” However, regardless of the extent of effort involved, it is the self-image of innocence that does the deleterious work. Blogger Linda McClain’s work on the “rhetoric of bigotry” also supports this premise.  This is because the national framing of bigotry as being the opposite of beliefs we sincerely hold, only reinforces the inclination to resolutely hold onto a self-image of innocence. 

The book’s study of Latinos forcefully underscores the harm that the racial innocence mindset unleashes in normalizing racial hierarchies and abdicating any responsibility for addressing them. That Latinos are a racially diverse pan-ethnic group viewed “as people of color” further entrenches the notion that a “Latino-style” allegiance to colorism is not as serious as US-style racism. Not as serious for Latinos to address nor for courts to apply anti-discrimination law to. Yet, labeling Latino racial attitudes as less serious relies on ignoring the existence of Afro Latinos.

Social Distance, Social Reproduction, and Dismantling “Latino Anti-Black Bias”: A Comment on Tanya Katerí Hernández, Racial Innocence

Guest Blogger

For the Balkinization symposium on Tanya K. Hernández, Racial Innocence: Unmasking Latino Anti-Black Bias and the Struggle for Equality (Beacon Press, 2022).

Linda C. McClain

Racial Innocence: Unmasking Latino Anti-Black Bias and the Struggle for Equality, by  Professor Tanya Katerí Hernández, is a courageous book and a vital addition to a growing body of work helping readers to recognize and to dismantle anti-Blackness and structural racism in the United States. (Two powerful examples are  Isabel Wilkerson’s Caste: The Origins of Our Discontents and Claudia Rankine’s Just Us: An American Conversation). In Racial Innocence’s skillful melding of personal narrative with scholarly inquiry,  I also found some illuminating resonances with Undoing the Knots: Five Generations of American Catholic Anti-Blackness, by Professor Maureen H. O’Connell.  In challenging the premise that “Latinos can’t be racist” with powerful stories, case law, and statistics, along with personal and familial narratives,  Professor Hernández demonstrates the limits of viewing anti-Black racism as being solely about “White non-Hispanics” (12).  As Professor Rhonda Reaves observes in this symposium, Racial Innocence challenges “the traditional notion that race in the United States coalesces around a Black/White binary and that only Whites can engage in racist behavior.” In a generative exchange between Leslie Espinoza and Angela Harris, Embracing the Tar-Baby: Lat-Crit Theory and the Sticky Mess of Race (published both in California Law Review and La Raza Journal), these two scholars candidly explored the tension between, on the one hand,  criticisms by LatCrit theorists of the “black-white paradigm” in the U.S. for making “other non-whites invisible”  and, on the other, a defense of  “[B]lack exceptionalism,” which centers the “black-white paradigm” because Black people must be placed at the “center” of “any analysis of American culture or American white supremacy” (10 La Raza L.J. 517; 85 Calif. L. Rev. 1603). They candidly addressed the worry (citing Ian Haney-López) that the embrace of “ethnicity” (rather than race) by Latino/as could implicitly be a rejection of “blackness” and an accommodation of the “white over black” hierarchy.  Twenty-five years later, Racial Innocence carefully and unflinchingly charts “Latino discrimination against Afro-Latinos and African Americans” to disrupt the narrative that “Latino anti-Blackness is a made-up problem” and to reveal how this bias contributes to the racial caste system (5-6, 10).