This Fourth of July is Yours, Not Mine

I cannot celebrate this Independence Day in a spirit of joy over “life, liberty, and the pursuit of happiness.” Yet I feel in this time that the clarity we see these days for America’s faults is now more than ever balanced by America’s possibility, that continuing yet unfulfilled promise of equality.

That possibility was born on the Third of July. This year, I will celebrate it and mourn the Fourth.

The Third of July birthday of which I speak was July 3, 1863. That day ended the Battle of Gettysburg. It saw the repulse of Pickett’s Charge, the hamstringing of the Confederate Army of Northern Virginia, and the beginning of the end of Robert E. Lee’s rebellion. July 3 signaled the long march to the eventual ruin of slavery and the Confederacy.

Admittedly, the Confederacy of the mind won the Jim Crow peace. This “Lost Cause” resisted equality and civil rights for nearly a century after Appomattox (and that same resistance under the banner of the Confederate battle flag is invoked every time the flag’s removal is protested). But the actual Civil War’s end, and the victory of the idea of equality, began at Gettysburg.

Indeed, in reflecting on the underlying meaning of Gettysburg in his famous November 1863 address, President Abraham Lincoln saw the battle as the test of whether American democracy based on rhetoric of equality could survive civil war. In his famous speech, he hoped

that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.

That cause, the New Birth of Freedom, promised an America that laid stock in Lincoln’s great cause of abolishing slavery and restoring union (even despite Lincoln’s own slow realization of the former). The bullets and blood of Gettysburg set in motion the ultimate Reconstruction of the US Constitution that promised an equal protection of the laws for all persons in the United States without yolk of slavery or differentiation based on status or race.

Unlike the America of the Founders, that promised United States actually includes me as a free Black man equal to all other men and women. It is that New Birth of Freedom that I prefer to celebrate through commemorating the victory of Gettysburg and the demise and fall of the Confederacy. For that victory sowed the seeds of a Union more perfect than the one of 1789.

This promise is an answer to African-American orator Frederick Douglass’s question, “What to the Slave Is the Fourth of July?” His Independence Day 1852 oration held a mirror to a white supremacist America that would enslave his body yet celebrate liberty:

I am not included within the pale of this glorious anniversary! Your high independence only reveals the immeasurable distance between us. The blessings in which you, this day, rejoice, are not enjoyed in common. The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by me. The sunlight that brought life and healing to you, has brought stripes and death to me. This Fourth [of] July is yours, not mine. You may rejoice, I must mourn.

Frederick_Douglass_c1855We appreciate Douglass’s assertions even more today. Indeed, the irony of Thomas Jefferson’s appeal to “life, liberty, and the pursuit of happiness” is clear when we recognize that he echoed John Locke, who pointed to “life, liberty, and property,” and thus we can read Jefferson’s rhetoric (as forced by Southern slaveholders) as a protection of his property—including his slaves. Moreover, the signers of the Declaration of Independence used their eloquent call for liberty to shroud their tax revolt which in a sense sought to reapportion more of the benefits of the transatlantic slave trade to themselves. And it is to appreciate that the original pro-slavery American constitution set the stage for our arguments about race today.

I like Douglass must ultimately morn. Even in this 244th year of the United States, Lincoln’s promised freedom and the reconstructed constitutionalism which should have followed remains desperately under fulfilled. Antiblackness still pervades and perverts promised liberty for all.

My life still remains at greater risk than a white life at police stop. I mourn for George Floyd, Breonna Taylor, Ahmaud Arbery, Trayvon Martin, Tamir Rice, and how their deaths are symbols of the many thousands gone because of extremist police violence against people of color (who’s origins are inextricably tied to slavery). To speak their names is to invoke the sign and signal of an America still addicted to anti-Black police violence. For me to invoke their memories is to remember my own life has a target on it. And so I mourn.

I mourn because my vote is devalued because of the caprice of those who suppress the votes of Black, Latinx, and poor people. I mourn for the racial wealth gap, the school-to-prison pipeline, and the fact that Black and Brown bodies suffer and die more from COVID-19.

I cannot but join Douglass in saying that an America that claims liberty and justice for all, as measured by its progress in all these structures of racism from the Founding to the present, may have improved since 1863, but ultimately America (to date) remains “false to the past, false to the present, and solemnly binds herself to be false to the future.” And thus, on this eve of Independence, the contradiction between the promise and the reality of America is clear. And I wonder whether the promise of overthrowing racial oppression once and for all is true.

But rather than despair, I, like Douglass, would say, “notwithstanding the dark picture I have this day presented of the state of the nation, I do not despair of this country.” Indeed, I am heartened by the destruction of communal symbols of racism and white supremacy—blackface, appropriated black icons, and propagandistic Confederate statues, to name a few—and I express my hope that further mindful erasure of allegiances to white supremacy through democratic deliberation continue.

But for a Fourth of July that is more joy than pain for me, the Reconstruction must actually be completed. The promise of the Third of July must be fulfilled by transforming the structures that perpetuate racist effects (even without any racist intent). That includes, among other things, reinvented policing, reimagined democracy, and a revision of the structures and ideology that perpetuate the New Jim Crow. Government of the people must protect and value all the people.

Until then, “this Fourth of July is yours, not mine.”

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.”

Big News

I have big news to share.

I have accepted a position at Marquette University Law School in Milwaukee, WI, starting this fall. I will be a full professor there. I will continue teaching my core of courses, including Election Law, Civil Rights, Race and and Trusts & Estates.

While I am saddened to leave my kind colleagues and friends at West Virginia University, I am also excited to start a new adventure. In particular, I hope to bring my voter suppression scholarship to practical use in Wisconsin as well as expand my teaching and public engagement. In short, this is a tremendous opportunity and I am looking forward to it.

ACS Election Commission Panel Appearance

screen shot of Professor Ellis speaking on the ACS election commission panel

In mid-January I had the great pleasure of pleasure of participating on a panel hosted by the American Constitution Society and held at the National Press Club in Washington D.C.  The event was entitled “The Perils and Possibilities of Election Commissions.” In light of the recent disbandment of the Pence-Kobach Commission on Election Integrity (which apparently existed to substantiate President Donald Trump’s unfounded allegations of widespread voter fraud), this conversation was a timely examination of the feasibility of national election reform driven by appointed study commissions. I was honored to get to participate, and I hope you benefit from watching the video.

You can watch the archive of the event in the video embedded below, on the ACS website, or directly on YouTube. My opening statement begins at 12:33 in the video, but I encourage you to watch and listen from the beginning and take in the full discussion of this esteemed panel.

Official ACS Description

In the nearly two decades since the controversial 2000 presidential election, numerous commissions have been formed to examine and reform our voting processes. These commissions have issued recommendations on a wide variety of subjects, including voter identification, early voting, and online voter registration, and their influence can be seen in Supreme Court decisions and how we conduct our elections at the federal and local levels. Nearly a year ago, the Trump Administration established a “Presidential Advisory Commission on Election Integrity,” which was recently dissolved amid controversy and litigation. This development presents an opportunity to better understand how commissions are supposed to function and how they shape election law and voters’ experiences. Have these election commissions made our system more fair, effective and transparent? How and to what extent have they influenced voter confidence in our elections? And what challenges persist in our election processes that might be worthy of examination by such a commission?

Introduction:
Caroline Fredrickson, President, American Constitution Society

Panelists:
Robert Bauer, Partner, Perkins Coie; Former White House Counsel; Co-Chair of the Presidential Commission on Election Administration

Atiba Ellis, Professor of Law at West Virginia University

Jenni Katzman, Director of Policy and Programs, ACS

Benjamin Ginsberg, Partner, Jones Day; Former National Counsel to Bush-Cheney Campaigns; Co-Chair of the Presidential Commission on Election Administration

Natalie Tennant, Manager of State Advocacy on voting rights and elections at the Brennan Center for Justice at New York University School of Law, Former Secretary of State of West Virginia

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.

WRAL’s “On The Record”to Discuss Voter Fraud

screenshot-2017-02-18-18-30-35I will be on WRAL-TV (Raleigh, NC viewing area) tonight at 7:00 PM on their news and discussion show “On The Record” I will be discussing recent controversies and American elections, including the recent comments by the President concerning the existence of illegal votes and other issues related to voter fraud. For those of you not in the area or who can’t watch the show live, the link to the broadcast is here.

As readers of the blog know, a main theme of my election law research considers the ramifications of the narrative of unproven voter fraud. My research on this is here, and my  blogpost in the wake of the November election that discusses the ramifications of Trump’s use of the voter fraud meme is here. And expect more research and writing from me on this issue.