Join Me in NYC for Two Talks on November 4

I have the privilege of participating in two panels in New York City this Monday, November 4. The first is a lunchtime event sponsored by NYU Law Review and the Center on Race, Inequality, and the Law on “Race and an Exclusionary Democracy.”

The second is an evening event on the impeachment proceedings against Donald Trump and the their implications for the future of our democracy. It’s sponsored by the Sorensen Center for International Peace and Justice and the CUNY Law Office of Student Affairs.

Both events are open to the public, but require an RSVP. The details and registration links for each event are below. If you in the city Monday, I hope you will join me.

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NYU Law Review Lunchtime Series on The Anatomy of Racism and Inequality: Race and an Exclusionary American Democracy

November 4, 2019, 12:30 to 2:00 pm, Lester Pollack Colloquium
Event details
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This panel will explore how racial identity has colored American democracy and political participation.  Panelists will discuss how racism, xenophobia, and religious intolerance have impacted public conceptions of who is an American, and therefore who has the right to vote and otherwise participate in the nation’s political life.  The panelists will also consider contemporary efforts to expand and restrict active engagement in the democratic process including discriminatory redistricting efforts, voter ID laws, and felon disenfranchisement.

Panelists:

Khaled Beydoun, University of Detroit Mercy School of Law

Atiba Ellis, Marquette University Law School

Ryan Haygood, New Jersey Institute of Social Justice

Danielle Lang, Campaign Legal Center

Myrna Perez, Brennan Center for Justice

Moderated by Vincent Southerland, Center on Race, Inequality, and the Law, NYU School of Law.

 

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Critical Voices: Impeachment and Beyond

November 4 ,2019, 5:00 pm – 6:30 pm
CUNY School of Law, 2 Ct Square W, Long Island City, NY 11101
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Join the Sorensen Center for International Peace and Justice and the CUNY Law Office of Student Affairs for a panel discussion with Atiba Ellis, Ruthann Robson, and B.J. Steiner on the impeachment inquiry against President Trump and its wider implications for democracy. Natalie Gomez-Velez will preside.

Atiba Ellis is a Professor of Law at Marquette University Law School who writes on democracy, voting, and race. Ruthann Robson is a Professor of Law and University Distinguished Professor at CUNY Law who is a frequent commentator on constitutional issues. B.J. Steiner is a third-year CUNY Law student who served as a Legal Fellow at Common Cause during this past summer where he co-wrote an accountability report on the case for an impeachment inquiry of President Trump with Karen Hobert Flynn and Paul Seamus Ryan. Natalie Gomez-Velez is a Professor of Law at CUNY Law who teaches Constitutional Law and directs the Center on Latino/a Rights and Equality.

When Diversity Is At the Bottom of the List

Recently, Forbes published a news report entitled, “Chief Diversity Officers Are Set Up to Fail.” The article draws on a survey of a group of Fortune 500 Chief Diversity Officers that asked them what they need to succeed. The article points to CDOs stating that they do not having enough experience, data, or power to accomplish their role. In particular the article reported that, “All of the leaders surveyed reported that diversity and inclusion came in last on a list of eight potential business priorities for their companies.”

And interestingly, as to higher education in particular, The Chronicle of Higher Education reported on a study from September 2018 about University Chief Diversity Officers hired to increase faculty diversity. The claim there was that CDOs likely had no significant impact on the diversification of representation in higher education. The question remains for corporate and educational institutions that claim to want it: why is diversity still such a low priority?

This problem is nothing new. The disconnect between institutional priorities and achieving diversity (whatever that means, as it can mean many things to different people) seems to be indicative of our current broken attitudes towards diversity and inclusion. This brokenness can result in diversity-as-tolerance (as I’ve discussed before), which cravenly takes advantage of being seen as diverse merely to increase profits or enrollments (to the extent that, as Nancy Leong has pointed out, such institutions are willing to fake diversity) without there being an authentic commitment to inclusion and transformation of institutional culture.

The law appears particularly vulnerable to this problem. We can point to examples of the perception of a lack of commitment to diverse representation in law schoolslaw firms, and law practice generally. All of which are microcosms of the society’s shallow practices about diversity and inclusion. And this is ironic given the legal profession’s mission to protect vulnerable minorities.

Maybe “diversity” as idea is in the midst of an existential crisis. Despite good intentions diversity may appear meaningless and amorphous. Or maybe all of this reflects society’s comfort with the patterns of white supremacy, and thus the lip service to diversity is simply a cover for preserving the status quo. And maybe—a thought I would never have uttered four years ago—some people in power actually want the rising tide of renewed white heteronormative patriarchal supremacy to take us to a time when America was “great,” and authentic diversity based on equality is treated as poison.

The existential crisis that diversity faces doesn’t excuse ending the search for it. Authentic diversity is an essential predicate for American institutions, whether for-profit or nonprofit, private or public, that strive to represent all of the people. These recent thoughts about Chief Diversity Officers would suggest some basic starting places for authentic institutional diversity—finding a working definition of diversity, making that definition as part of the institutional vision, and most importantly achieving that vision by making diversity a real, measurable priority.

The priority at the bottom of the list rarely gets achieved.

Originally posted on Race and the Law Prof Blog

The Mirror of Racial Tyranny in The Civil Rights Cases

On the 135th Anniversary of the Supreme Court’s opinion in The Civil Rights Cases, it is worth reflecting on how that opinion — which came after Reconstruction but before Jim Crow—reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the power of the history of slavery and the salience of race, contributes to enduring white supremacy.

This week marks the 135th anniversary of the U.S. Supreme Court’s opinion in The Civil Rights Cases, 109 U.S. 3 (1883). While to some this is a mere historical footnote, the decision is worth remembering because it reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the salience of race, contributes to enduring structural oppression. The reasoning in The Civil Rights Cases is an object study in how to maintain white supremacy—and a mirror to our society today.

The opinion overturned the Civil Rights Act of 1875. It sought to protect recently freed African-American slaves from discrimination in the use of “inns, public conveyances on land or water, theaters, and other places of public amusement.” In striking down this nineteenth-century public accommodations law, thus allowing private businesses to deny services to African Americans because of their race, Justice Joseph P. Bradley, speaking for the 8-1 Supreme Court majority, made three arguments.

First, the Court held that the power to regulate individuals and corporations fell to the states, not the federal government. Second, to the extent Congress passed the Act under its Fourteenth Amendment authority, the Court held that the Fourteenth Amendment was limited to regulating actions by states and not private actors (a doctrine that still holds today). Finally, the Court interpreted the Thirteenth Amendment, meant to remedy the badges and incidents of slavery, as only allowing Congress to abolish denials of legal rights extending from past slavery.

The Court’s underlying rationale is truly telling: accommodation of ex-slaves in present commerce is irrelevant to past slavery and the Thirteenth Amendment. African Americans complaining of such discrimination should seek state remedies or federal remedies to the extent Congress wishes to make them. This may be true as far as it goes, and by this time we already knew that the ex-Confederate states and their agents had not been aggressive in pursuing remedies for discrimination—the reason for the 1875 law. And we also know that after this act was struck down, Congress passed no other civil rights legislation for over eighty years.

Indeed, the Court denies the possibility that racism may be tied to the caste system that slavery created. Bradley claimed that to treat discrimination in public accommodations as related to bias arising from slavery is to take “the slavery argument” too far:

It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal within in other matters of intercourse or business.

This is the kind of slippery-slope argumentation that willingly denies the past of slavery and the (obvious) interconnections between white racism, racial caste, and its more immediate outcomes.

This was done despite the dissent of Justice John Marshall Harlan, who warned that without the intervention of Congress and a more fulsome interpretation of the Reconstruction Amendments, African American citizens will not be able to “take the rank of citizen” rather than subordinated class. One hundred thirty-five years later, and it is this same battle that we fight today. As Harlan put it—and it is worth reading his argument in detail:

The difficulty has been to compel a recognition of their [African American’s] legal right to take that rank [of citizen], and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. At every step in this direction the nation has been confronted with class tyranny, which a contemporary English historian says is, of all tyrannies, the most intolerable, ‘for it is ubiquitous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.’ Today it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time it may be some other race that will fall under the ban. If the constitutional amendments be enforced [as Harlan believed they were meant to be enforced—to end racial discrimination in civil rights based on race or previous servitude] . . . there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the later to dole out to the former just such privileges as they may choose to grant.

In other words, this class tyranny betrays the values of the Constitution by interfering with the goal of Reconstruction – equality of all citizens. Class tyranny in 1883 was the weapon of those who sought to oppress on the basis of race. Class tyranny intersects with racial tyranny and can target multiple groups over time. Such class tyranny in the service of white supremacy is itself antidemocratic and against the vision of the reconstructed Constitution. And the decision narrowing the power of the national government to stand against such tyranny under the guise of narrow formalism will allow such tyranny to flourish and reinvent itself.

What of these themes do we see in 2018?

We have seen the Roberts Court deny the possibility that the larger harms of voter suppression may be tied to the historical motivations and past racially discriminatory practices of state governments. In Shelby County v. Holder, the Court relies on the claim that “the South has changed” to justify nullifying Congress’s judgment that Section 5 of the Voting Rights Act ought to be used to continue to supervise the recalcitrant ex-Confederate states in their voting practices.

We see the Court once again relying on manufactured formalism to justify hard lines between state authority and federal authority to supervise voting, immigration, education, and other racial (as well as gendered, class-based, and sexual preference-based) fault lines; and states have taken this opportunity to institute disenfranchising and discriminating practices in this space. We have seen commentators, legislatures, and judges argue that talking about race in and of itself is divisive, and that aspirations towards post-racialism should silence debate around race despite the racist actions that daily remind us about its enduring salience and power.

This post-racialism argument is the modern-day version of the “running the slavery argument into the ground.” The holders of these views (on the right and on the left) decontextualize discrimination, rely on admitted intent rather than see discriminatory actions in and through context, and rest comfortably within deep denial about how subornationist structures still dominate our society.

We can see these things in The Civil Rights Cases. It is a mirror to our 2018 society. This opinion reflects the structures and habits of mind bent towards continued white supremacy today.

(Cross-published at Race Law Prof Blog.)

Constitution Day Cross-Country Tour

I started my Constitution Day tour at my home institution, Marquette, on Monday. There I spoke to the ACS student chapter about constitutional values and the right to vote. Then I hopped on a plane and headed out to Penn State Law School for another discussion of constitutional values and their relationship to voter suppression. That was quite an adventure, as this tweet shows. The final leg of my tour takes me to the left coast and the University of Puget Sound. In fact, I am writing this post just before my flight to Tacoma. If you are in the Tacoma/Seattle area on Thursday at 5:00 pm, I hope you will join me.

Integrity, Equality, & the Fragility of the Right to Vote: A Constitution Day Lecture
University of Puget Sound
Thursday, Sept. 20 5:00 pm in the Rotunda

Constitution Day Lecture Poster2At the heart of the modern battles over the American right to vote is a tension between two constitutional values. On one side is the original Constitution and the autonomy it grants the states over the franchise. On the other are the Reconstruction Amendments and the modern demands for equality. With few textual caveats, the Constitution of 1789 gave states near-autonomy to shape the right to vote. Many states did so in a way that reflected an antebellum vision of citizenship rooted in popular (in its time) eighteenth-century notions of status, wealth, and identity—a definition that excluded many. This value of autonomy, and the social ordering underlying it, continues to influence the modern contours of voting rights despite the social transformations the United States has undergone. Yet these movements toward social transformation put the value of autonomy in tension with the value of equality, so that within a generation of the framing of the Constitution, the identity of the American citizen became a contested concept. This contest led to the post-Civil War amendment of the Constitution to include doctrines geared towards citizenry equality and the practice of federal intervention to insure enforcement of those doctrines. Thus, from a modern perspective, equality of citizens has become an important (and some may argue more important) a value as state autonomy. Yet this proposition remains a contested concept measured against the value of state autonomy. Thus, state autonomy (and its use to hold to the arguable residuary of an antebellum social order) and post-Reconstruction equality (and its use to form a new social order) continue to be at odds. This talk will offer perspectives on this competition of values within the right-to-vote context and describe how these tensions play out in the modern-day voter suppression debates.

Constitution Day 2018 — Marquette ACS TODAY at 1:00 PM CDT Room 342

Today — September 17 — is Constitution Day, the day the United States celebrates the signing of the Constitution. As part of celebrating Constitution Day, on or about September 17 educational institutions across the country have programming that discusses the Constitution in some way, shape or form.

The right to vote is of paramount importance to our constitutional framework. us-constitutionIt is this right that makes the US a democratic form of government, it is this right that is, in the words of the Supreme Court, “preservative of all other rights.”

This week I will be presenting a series of lectures regarding the Constitution and the Right to Vote. First off, today at 1:00 PM CDT here at Marquette University Law School, I will be speaking to the American Constitution Society chapter on the Right to Vote. The talk will be in Room 342 of Eckstein Hall.

This will be the first of three talks I will be giving as part of this Constitution Day lecture tour. Stay tuned for details about my talk tomorrow, September 18 at Penn State Law (University Park) and my talk this Thursday, September 20, at the University of Puget Sound.

 

Starting the Next Phase (aka First Day of School 2018 — At MULS)

I am excited to be at Marquette Law not only to talk about the ephemera of probate, but also the all too real and big picture issues around voter suppression, racial segregation, and other issues that matter greatly to the United States and to the Milwaukee and Marquette community in particular.

After a hiatus from blogging, I wanted to write today that I have returned to the blog — and that I get to start an exciting new phase in my work.

Specifically, I have arrived at Marquette University Law School — my new institutional home. Though I announced my move in March, and I moved into my office in Eckstein Hall in Milwaukee last month, MU+exterior+signageI’m excited to teach my first class here as a full-time faculty member today (during which, I’ll take my students to Dickensian England — via Youtube, of course — in the first meeting of my Trusts & Estates course).

I am excited to be at Marquette Law not only to talk about the ephemera of probate, but also the all too real and big picture issues around voter suppression, racial segregation, and other issues that matter greatly to the United States and to the Milwaukee and Marquette community in particular. I look forward to conversations around these issues (like the ones I had last year) with members of my new communities.

In that spirit, I am also returning to blogging more regularly, to speaking, traveling, and writing, and to sharing past and future major projects. So, expect more posts in the upcoming days, weeks, and months. For example, I will share (finally!) my TEDx talk on the Meme of Voter Fraud. I will also share information about a talk I will give next month on “Integrity, Equality, and the Fragility of the Right to Vote.” And this is just the beginning for this fall semester.

Stay tuned!

On Wakandan Constitutionalism or the Humanization of Blackness in Black Panther

The Black Panther movie has drawn the attention of the entire world. It is the Marvel Cinematic Universe’s highest-grossing movie. Think pieces have proliferated across the internet—and [the Race Law Prof Blog’s] symposium* is no exception.  And this boundary-breaking moment in pop culture has revolved around the unabashed humanization of Africans, the African Diaspora, and the subjugation of the African people.

In other words, despite this being a movie based on a comic book, Black Panther humanized blackness in a complicated and real-feeling way. This realization offers us a moment to have the beginnings of a different conversation about race.

To appreciate this, let’s think about how popular blockbuster films has typically portrayed blackness. While there are certainly exceptions, Hollywood has deployed numerous tropes that misrepresent and underrepresent blackness. These include the “Magical Negro” who uses powers in service as a sidekick to a usually white character, the “Black Thug,” who is intended to be a receptacle of dehumanized behavior and pathological violence, and the deracialized Black hero who is virtuous but only happens to be black.

But Black Panther, as Afrofuturistic fiction, forces us to re-imagine, confront, and defy the underlying narratives that drive those Hollywood tropes. And it unapologetically does so by, first and foremost, forcing us to imagine a world wholly owned by Africans, a world where Blackness is unbounded by white supremacy.

Wakanda is separate and apart from the white settler colonist world, yet its technology and sophistication (and its infiltrative practices and policy of noninterference) are more powerful than the nation-states of the colonialist or colonialist-influenced powers. While this utopia is imperfect and the film serves to expose its flaws—and this state-view is open to critique, as Saru Matambanazo has suggested in this symposium—this imaginative offering of Black statehood not subjugated by white settler colonialism defies the tropes that blackness is bounded by in Hollywood blockbusters.

Moreover, Black Panther humanized blackness by making it the moral norm within this cinematic construct. Wakandan blackness and Oakland blackness are the poles of the film. The alien infiltrators into this world are the two white characters, jokingly known as “the Tolkein white boys.” This defies the received-tradition of antiblackness.

Wakandian women and men are royalty, leaders, followers, citizens, and soldiers. Not the British Crown, the American President, or the Russian Federation. Wakandians own the conversations. Wakandians own the family, policy, and visionary disputes of the film. Within this dynasty built entirely apart from white supremacy, it is the Wakandans —all Wakandans—who are the whole moral agents. And T’Challa is their king and lord protector of this legacy.

N’Jadaka—aka “Erik Killmonger”—disrupts T’Challa’s Afro-utopia by making present and persistent the question of how the power of Wakanda ought to be used in relation to Black liberation. As Robin Walker Sterling pointed out during this symposium, the heart of N’Jadaka’s complaint—and his anger—is the Black privilege that Wakanda’s isolation and power allows.

But stop for a moment and appreciate that—Black privilege as a norm and a possibility rather than an oddity; Black anger as legitimate usurping political power.

Black Panther forces attention onto racial subjugation by giving N’Jadaka the most provocative and persuasive voice in the film. He demands redress for the diaspora’s dispossession through deploying the power of Wakanda to destroy white settler colonialism by force. He transforms Wakanda—for a moment—into an imperialist interventionist state powered by what Tabias Olajuawon called during this symposium a “fugitive politic” informed by “Black Combustibility.”

Let’s be clear: the film forces us to imagine Black anger as legitimate and normalized. Black anger is given a place at the table. It grants Black anger political power and vibranium weapons. But this anger is ultimately contained when T’Challa kills N’Jadaka and retakes the throne. Many see this as a failing, as if with N’Jadaka’s death the anger ends. But the film makes this reading more complicated.

The movie ends not with N’Jadaka’s death, but with T’Challa transformation. Pivotal to this is the defiance T’Challa shows in his second ancestor scene, where he confronts the tradition of nonintervention by telling T’Chaka, his father, and the host of ancestral kings that they were wrong to be passive. Thereafter, the re-awakened T’Challa accedes to N’Jadaka’s core thesis, the need for intervention to help the African dispossessed, but he fights N’Jadaka over the throne and the means. T’Challa’s victory leads to his use of soft power intervention instead of hard power. Moreover, this use of soft power shows T’Challa’s transformation from passive caretaker to interventionist leader.

The Black Panther movie thus offers us a thought experiment that imagines an empowered state (and statehood) of blackness and forces all of us—children of the dispossessed African diaspora and children of settler colonialism privilege alike—to imagine its potential scope. Nareissa Smith spoke to imagination and vision in this symposium. She rightfully puts Black Panther in the genre of films that encourage African Americans to imagine themselves anew and then “conceive a brighter, Blacker future.”

I think there is an additional possibility: Black Panther teaches us, the world at large, that Black diasporic anger has a place at the table in our political and legal discourse. Consciousness of the harm of racism can transform our thinking and challenge us to act differently and for the better. We must grow our imaginations by focusing on the evidence in front of our eyes.

Black privileged T’Challa now seeks to build bridges because he had to confront N’Jadaka’s diasporic anger and its moral claim. T’Challa had to make sense of that anger in both his final journey to the ancestors and his final confrontation with N’Jadaka. I believe T’Challa’s preparation in Wakandan constitutionalism intersected with his new awareness of diasporic anger. This synthesis transformed his imagination. T’Challa then rejects isolationism and reaches out in a humane way. Thus, T’Challa now possesses privilege and power but that privilege now incorporates race consciousness rooted in the realities of subjugation.

The real world needs more of T’Challa’s kind of consciousness raising.

For example, consider the limits of the Supreme Court’s judicial imagination around race. In an essay entitled “Normalizing Domination,” I argued that the Supreme Court’s treatment of racialized voting rights concerns represents an unwillingness “to believe what is before them by substituting other explanations for racial discrimination.” My explanation for this is the legacy of colorblind constitutionalism made manifest in a post-Shelby County v. Holder period of post-racialist retrenchment about the politics of race. The Court focuses on narrow measures of antidiscrimination success rather than broader discourses that continue to suppress poor minorities’ votes.

Black Panther would suggest that limited imagination can be turned around through taking in the evidence before our eyes and hearing the claims of the angry and dispossessed. This kind of listening requires going beyond the narrowest of measures and tendencies towards triumphalism. It requires a more expansive vision, the normalizing of the so-called “other,” the goal of actually learning from the other side and putting of privilege at risk.

For the Court, it would require embracing—rather than denying—the benefits of a constructive constitutional race consciousness meant to humanize all citizens. It requires recognizing that our constitution is dynamic and, as Justice Thurgood Marshall recognized, this dynamism is necessary to attain the freedom we have now. By changing the premise about race and the Constitution, the outcome in cases like Shelby County can too change.

I believe that judicial imagination, political imagination, and even our collective societal imagination can be transformed through these ideas. This is the larger moral of Black Panther.

*This post was originally published on the Race Law Prof Blog as part of the blog’s symposium, “Wakandan Jurisprudence: How Black Panther Challenges Us to Examine the Past, Present, and Future of Race.”