Keeping Up With Atiba: October 2017 Edition

This has been a busy fall semester for me, and it’s only the second week of October! For this fall, I am the Boden Visiting Professor of Law at Marquette University Law School. As part of my position I am participating in several local speaking events over the next few weeks. If you are in the Milwaukee area, I would love to see you at one of these events. If you are reading this post from afar, several of my talks will be available online (see below for details).

This has been a busy fall semester for me, and it’s only the second week of October! For this fall, I am the Boden Visiting Professor of Law at Marquette University Law School. As part of my position I am participating in several local speaking events over the next few weeks. If you are in the Milwaukee area, I would love to see you at one of these events. If you are reading this post from afar, several of my talks will be available online (see below for details).

Lecture on Gill v. Whitfordacs-logo
American Constitution Society
Thursday, October 12, 12:00 pm
Eckstein Hall, Room 363, Marquette University

I will be discussing the Gill v. Whitford case that was argued last week before the U.S. Supreme Court. I will also discuss how gerrymandering poses significant issues for the right to vote in the United States. Event details here.

What Are Athlete’s Rights? Part 1 – Activism SLS-B-W_69
National Sports Law Institute of Marquette University Law School’s Annual Conference: Maintaining the Integrity & Commercial Value of Sports While Protecting Athlete’s Rights
Friday, October 13, 3:05 – 4:15 pm
Eckstein Hall, Room 144

I have the privilege of participating in a panel discussion on athlete’s activism rights with both legal scholars and practicing sports law attorneys. In particular, I will be discussing the First Amendment context in which protests by athletes occurs and how the recent #TakeAKnee protest and similar contemporary activism against racism has shifted this discussion and unearthed underlying American dilemmas regarding race. Learn more at the conference website.

tedx-logoTEDxOshkosh performance: Using Memes to Break Out of Voter Fraud Talk
Saturday, November 4, 8 am – 6 pm
Grand Opera House in Oshkosh, WI

Voter fraud talk has dominated our last two elections, and policy makers and voters have divergent views of the problem. My talk will show us how the lens of memes can help us focus on the first principles of voting and the evidence around what makes voting effective.

To learn more and to register visit the TEDxOshkosh 2017 website. If you can’t attend, my talk will be available on the website after the event and I will post a link here and on Twitter and Facebook when it becomes available.

Lecture on Civil Rights issuesacs-logo
American Constitution Society
November 9, 12:15 pm
Marquette University. Building and room TBA.

The recent resurgence of the rhetoric of white supremacy and the open reveral of recent gains in antidiscrimination doctrine by the current administration has illustrated the importance of civil rights doctrine and the fragility of the constitutional consensus around American equality. At Marquette Law this semester, I have been teaching a course entitled “Contemporary Perspectives on Civil Rights,” which has explored through the lens of race the key principles behind this antidiscrimination consensus and the tensions in their application across a variety of legal contexts. My talk will explore some of these key principles and tensions and the likelihood of their continued applicability in the Era of Trump.

On the Issues: Voting Rights
November 16, 12:15 pm
Eckstein Hall, Marquette University

I will be speaking with Molly McGrath of the American Civil Liberties Union Voting Rights Project. Together, we will discuss how voting laws have changed in recent years, and what impact those changes might be having on our elections. Since the 2010 election, more than 20 states have enacted new voting laws. They range from photo ID requirements, to limits on early voting, to changes in voter registration rules. Supporters of the changes say the goal of the legislation is to guarantee the integrity of elections and prevent voter fraud. But opponents, such as McGrath and myself, say the new laws make it harder to vote, and have a disproportionate impact on minority communities.

Event is free, but registration is required. The talk might be live-streamed, so check back here and on my social media accounts for details.

Teaching Dred Scott in the Era of Trump

I taught Dred Scott v. Sanford this week. As a teacher and scholar of civil rights, it’s my job to teach the constitutional canon and how Dred Scott, and cases fairly called its progeny, misshaped our idea of equality. And while it is unsurprising to teach this canon in a course at Marquette Law on “Contemporary Perspectives on Civil Rights,” or in any civil rights or constitutional law course, what was different this time is that I taught Dred Scott for the first time in the Era of Trump.

Of course, I’ve taught the case before in first-year Property, in my Race Racism & American Law seminar, in public lectures at WVU Law, and in seminars on three different continents. I’ve written about Dred Scott in articulating my view of “tiered personhood” and blogged about its contemporary relevance. And it is fair to say that, after teaching for over 10 years, on some level, I was used to rehearsing the case often called “pure constitutional evil.”

But this time was different.

I walked into class, ready with my practiced confrontation of this intellectual monument to Chief Justice Roger Tawny. And after answering follow-up questions from last class about a case that enforced the racial classification system on which slavery depended, I began Dred Scott by reminding my students that we were studying the origin story of American white supremacy.

But before opening the casebook, I recalled that a student suggested we frame the conversation by watching a recent viral video of Univision News journalist Ilia Calderón. I had attempted to show the video in the class prior, but due to technical difficulties, this video prefaced our discussion of Dred Scott—which was not my original plan but proved more than appropriate for discussing the case in today’s political climate.

After the video ended, I found myself dumbstruck. This Klansman and his wife had the audacity to claim his superiority based purely on the color of his skin (which echoed the race classification cases from last class). He called her a “mongrel” and a “n**ger” and threatened to burn her out of his land. And despite their claims of racial superiority, religious exceptionalism, and entitled grievance, accompanied by threats of rebellion against a government that attacks their heritage and takes their stuff, the couple claimed they are not racist and the Klan is not a hate group.

In that moment, I remembered that Dred Scott is more than precedent. It is the anti-gospel of slavery, echoed anew by this Klansman, as an effort to tell Ms. Calderón (and all of us who can imagine her situation) to keep our place or be ready to burn. My own anger welled up, and my sadness too because that Klansman’s words reminded me of the times I had been called “n**ger” by white people, or told during an internship that “deliveries were around back,” or called “Big boy” by a white senior partner in front of my peers. Watching this Klan couple’s loathing reminded me that their hearts are full of twisted grievance and their minds are the heirs of the racial hierarchy enforced by Dred Scott.

To calm myself after the video ended, I had to let silence overcome the room. As far as I could tell, the students felt some mix of anger, pity, and shock. After this pause, I explained in both legal and moral terms that the structures of racism and the ideology of white supremacy cannot be thought of in isolation. The anti-gospel of the Klan and the words of Chief Justice Tawney must be thought of as parts of a whole.

Indeed, to read Dred Scott is to read a blueprint for structural racism. American citizenship is defined to exclude all black people. Slaves are a property that can be treated with near impunity. People of color do not belong in the American political community. A black person was “so far inferior that they had no rights which the white man was bound to respect.” These are the lessons of Dred Scott, which followed through on the seeds sown in the Constitution of 1789, and which took amendment and 160 years of activism, struggle, and needless death to reverse.

And though the law has changed, the reversal is incomplete. This era—these times we live in now—echo that evil. The boundaries of personhood continue to be drawn to exclude not only race, but also gender and sexual orientation. The borders of the political community are being redrawn to wall off children who live up to the egalitarian American creed but have imperfect immigration status. The Klan and Nazis march with the impunity offered through mealy-mouthed accommodation from the White House. The structures of mass incarceration, disenfranchisement, and police brutality were built according to the same blueprint of white supremacy as Dred Scott, yet there are those who defend these still-functional monuments to slavery and Jim Crow as “law and order.”

Dred Scott and its ideological and doctrinal progeny are still with us. As much as we have moved away from being an apartheid state, as much as we have asserted through the Constitution and laws that we believe in equality, there are those of us who, by their torches, their twisted ideologies, and their policies seek to bring us back to that time. Their fire and fury—both cultural and legal—still try to burn out equality in the name of nativism and racial superiority. This is the era in which we live.

On Overstating the Case for Confederate Monuments

It is that values question we should really be asking. As far as I can tell, those who object to the removal of the statutes seem to be saying that those Confederate generals who defended slavery, secession, and white supremacy represent the values of a twenty-first century America that is becoming more egalitarian and diverse.

The Robert Edward Lee statue in Emancipation Park
The Robert Edward Lee statue in Emancipation Park

It is overstatement to say that by removing monuments to Confederate generals one is erasing all history. Commentators have wondered aloud whether this will become a long-term movement towards total eradication of history of the South. The president even suggested this by asking when this will stop. He called the removal of Confederate monuments the destruction of culture. These claims incorrectly conflate crafting historical memory with the fact that honorific statuary in public places signals the values of the modern-day community.

Memory of the Civil War and its aftermath will not suddenly be completely erased forever because statues are torn down, street names changed, buildings renamed, and the like. Culture will not be destroyed. (And as an aside, one should ask, “Who’s culture is being protected by protecting these monuments?”) The consequences of the Civil War, for good and ill, linger. Moreover, history’s memory is a lot longer than the beginning and ending of a statue, and history will continue to be useful as long as scholars, schools, and society have open and honest conversations about the past.

History is dynamic. Honorary statues are not. Communities change and values evolve and those who are honored yesterday may be disfavored tomorrow. Think about it this way–when the American Revolution concluded, as my friend and Marquette colleague Edward Fallone points out, no one objected that the history of British rule over the colonies would be erased forever when the statues of George III were torn down. Two hundred forty one years later, we literally still sing songs to sold-out audiences about the American Revolution. And Hamilton the Musical! still gets the facts right.

The communal choice of determining who is and who is not to be honored in the present day is a completely different conversation than one about the state of history. We shouldn’t confuse the two.

Who gets honored in community space ought to be a democratic conversation for each generation. Before the revolution, George III was King. After the Revolution, George III did not represent what America means anymore to the majority of Americans, so statues to him had to go. Similarly, if the representatives of the public and private will in twenty-first century America have arrived at the decision that the twentieth century images of those who committed treason and insurrection to protect nineteenth century chattel slavery no longer deserve public places of honor because those communities see themselves as dedicated to egalitarian democratic values, then it does not follow that for some sense of static history the statues should not come down. That would privilege the ideology of the nineteenth century over the reality of the voices of the twenty-first. (And, as evidence is showing, the statues at issue now went up precisely to signal the ascendancy of white supremacy, both in the 1920s at the height of Jim Crow and 1950s in mass resistance to the racial integration demanded by Brown v. Board of Education.)

One may object that the judgments of history are cruel. The vicissitudes of the future may be such that one day, Martin Luther King, Jr. memorials and street names may be arbitrarily torn down, that today’s egalitarian heroes may end up tomorrow’s villains. The people who win this argument today and see the statues torn down, the argument goes, will end up losing the argument tomorrow. That slippery-slope reasoning misses the point. To quote Hamilton the Musical, once you and I are extinct, neither of us has control over “who tells our story.” That’s just the reality. All we can do is live our lives now in a way that makes our values clear and be content to let history be the judge of that.

It is that values question we should really be asking. As far as I can tell, those who object to the removal of the statutes seem to be saying that those Confederate generals who defended slavery, secession, and white supremacy represent the values of a twenty-first century America that is becoming more egalitarian and diverse.

As to that, all I can say is those folks have a lot of convincing to do. I think I have made clear that I’m not persuaded by this. But, in the spirit of free speech, those who support the statues get to make the argument. And short of turning the protest to violence—which they did—they even get to light their citronella tiki-torches and march in Charlottesville, Boston, and wherever else. And those of us who disagree should do so, and peacefully point out the error of their ways. (Remember: the First Amendment may protect your right to object from state sanction, but it doesn’t protect you from the consequences of disagreement.)

But as the supporters of letting the legacy of the Confederacy continue to be central to our twenty-first century places of honor make that argument, my advice is to not overstate the claim by saying the removal of the Confederate generals’ statues erases history. That argument will likely cost you a lot of your audience. And they won’t forget.

Keeping Up With Atiba: SEALS 2017 Tropical Storm Edition

First of all—I’m happy to be back on the blog and sharing my work. I’ve taken time away from sabbatical, and over the next few weeks I’ll be sharing big events and projects coming up. But I wanted to kick off this post-sabbatical post by sharing what I’m up to at the Southeastern Association of Law Schools 2017 Annual Conference (SEALS).

So, I’m writing this from 30,000 feet as I look out of the window over the Florida coastline. I can see ocean, beach, and clouds, and my first reaction is—sun, shore, and scholarship—three of my favorite things.

My second thought: I’m flying into a tropical storm!

The delays caused by the storm have been minor, the storm should cross over today and move out tomorrow, so I’m hoping it will not dampen what promises to be an exciting conference. (And frankly, after attending these for years, I thought it only a matter of time before hurricane season caught up with a conference usually held in Florida in August!)

I wanted to highlight specifically the discussion groups and panels I’ll be involved in—if you can make it through the rain, stop by and dry off.

My SEALS Conference Schedule, In Brief

Monday, July 31

  • 3:00 PM: Beyond the Socratic Method in Trusts and Estates

Thursday, August 3

  • 9:00 AM: Reforming the Presidential Selection Process
  • 1:00 PM: Inside the Mind of the Outside Reviewer

Saturday, August 5

  • Book Projects and Publication in Election Law

SEALS: The Details

Today – Monday, July 31 – at 3:00 PM, I will be participating in a discussion group on teaching innovation in Trusts & Estates Law. In particular, I hope to discuss my work regarding how I have used social media and outside-the-box teaching materials to enliven my intro Trusts & Estates class. Here’s the abstract:

WORKSHOP ON TRUSTS AND ESTATES
Discussion Group: Beyond the Socratic Method in Trusts and Estates

Many trusts and estates courses have historically focused their teaching techniques on the traditional Socratic method, and much of trusts and estates scholarship has focused on the development of doctrine within the field itself. This discussion group will explore pedagogy that is expanding the ways of teaching and studying trusts and estates and related doctrines. The discussion group will address: 1) innovations in teaching, including both skills and doctrine; and 2) incorporating concepts from Elder Law, Family Law, Property, and Professional Responsibility into Trusts and Estates — and vice versa.

I will be presenting at two events on Thursday, August 3:

First, at 9:00 AM, I will be discussing my proposal for a National Primary Day (to unify all primaries on one day) as a means to improve the presidential nomination and selection process. This is part of the Constitutional Law Workshop sponsored by SEALS:

WORKSHOP ON CONSTITUTIONAL LAW
Discussion Group: Reforming the Presidential Nomination Process

This panel discusses the nature of the presidential nomination process and how it might be changed, improved, or reformed. Presidential candidates are winnowed though party primaries, and this winnowing process is controlled by the two major political parties, receiving little influence from ordinary voters and citizens. The timing of our presidential primaries, how our party primaries are conducted, how party convention delegates are chosen, and how the votes of delegates are counted are all issues that parties decide on their own. This panel examines the presidential nomination process, how it unfolds, the role that political parties play in it, and how American citizens might have more of an influence over it going forward.

Second, at 1:00 PM, I will be discussing the Promotion and Tenure process on a panel entitled “Inside the Mind of the Outside Reviewer.” The goal of our workshop is to give attendees a perspective on the process of and importance of the external review process to the overall process of gaining tenure and promotion. Read more in the abstract:

NEW SCHOLARS WORKSHOP
Inside the Mind of the Outside Reviewer

In the promotion and tenure process, mentors stress to junior faculty the need to create a scholarly agenda, to find an original niche in their field, and to place their work well. However, what is not often discussed is one very important data point in the tenure decision, the external reviewer. This panel will discuss the role of the external reviewer in the tenure process, the expectations that external reviewers have, and the strategies that pre-tenure faculty can implement early on to succeed in this critical part of the tenure evaluation process.

Saturday, August 5 at 1:00 PM, I’ll be moderating a discussion group on current book projects in the Election Law field. (I will be presenting my book proposal on voter fraud ideology and American democracy).

DISCUSSION GROUP
Book Projects and Publication in Election Law
As the recent election cycle has shown, issues surrounding election law remain germane to the public concerning the American political process. Election law, as a field, has continued to address these issues through not only scholarship and public intellectual engagement, but also through historical and contemporary book-length works that have examined key cases and issues in the field. This discussion group explores the development of this branch of book-length election law scholarship and provide an opportunity for election law scholars currently working on book-length projects to discuss their current work.

And in the coming days and weeks, I’ll write more about my book and other ongoing projects (including my Boden Visiting Professorship at Marquette University and [new addition] my upcoming TEDx talk this November. Stay tuned!

ICYMI: download the Podcast of My Voting Rights Discussion on the Legal Eagle Review

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As I noted last week, I joined NCCU Law Professors Irving Joyner and April Dawson for a discussion of the history and future of voting rights on the Legal Eagle Review radio show on WNCU. The show aired this past Sunday night. In case you missed it because you were perhaps getting ready for the train wreck that was the Oscars, the podcast of the show is now up, and you can download or stream it here: http://www.wncu.org/podcasts/legal-eagle-review-podcast-0226/ .

I will be discussing the History and Future of Voting Rights on the Legal Eagle Review Radio Show *This Sunday at 7 PM*

img_0774.jpgThis Sunday, February 26, at 7 PM ET, I will be the guest on the Legal Eagle Review radio show on WNCU-FM. I will be talking about the history of voting rights with NCCU Law Professors Irving Joyner and April G. Dawson. The discussion will emphasize the parallels between the past of racial voter suppression and the present, the impact of the Shelby County v. Holder decision on the enforcement of voting rights, and the possible futures for voting rights in the Trump era.

Tune in at 90.7 FM in the Durham, NC area or listen to the livestream here.