Atiba Ellis

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+signage I’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).

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

On the Alabama Special Senate Election: Meme of Voter Fraud Edition

Late Wednesday night, the campaign to elect Judge Roy Moore to the vacant Alabama Senate seat sought to enjoin the Secretary of State for Alabama from certifying the result of the December 14, 2017 special election where Moore lost to Doug Jones. The basis: allegations of rampant voter fraud apparently among and related to African American voters that need to be investigated. Fortunately for us, an Alabama judge denied the motion to enjoin the certification and dismissed the complaint with prejudice.

It is easy to write this off as a last-ditch attempt of a disgraced candidate to stop the inevitable. But we should reflect on the larger context. Once again, the meme of voter fraud — the rampant supposition without proof that illegal voters (largely voters of color) are distorting our elections through voter impersonation — rears its head again as a direct weapon to suppress the votes for Jones. This use of the specter of voter fraud as weapon against the word of voters, particularly minority voters, is nothing new. And it’s the new normal in the post-Trump world.

As you know, Jones defeated Moore largely due to the significant turnout of the Black vote and anemic moderate Republican vote. The day after the election, I argued that this happened despite voter suppression laws seemingly designed to stymie the transformative power that a fully enabled and mobilized African-American vote would represent.

Yet, the day after the election the meme of voter fraud emerged. In this case, the meme apparently starts publicly here, when Bill Mitchell (@mitchellvii), who is, apparently, “a famously outspoken Trump supporter,” tweeted this:

Bill Mitchell's tweet alleging voter fraud in the Alabama Senate special election

And there’s the meme of voter fraud in one tweet — the explanation for the higher turnout that swung the election was not lack of enthusiasm for a candidate who allegedly sought sexual relations with teenage girls, or the Alabaman African-American turnout that rivaled 2012 or 2016 turnout (coupled with lagging moderate white conservative turnout). It was voter impersonation — Mississippian voters impersonating Alabaman voters. The comments to this tweet included accusations of election rigging by outsiders, a “mysterious convoy of black buses,” and something completely random about the War on Christmas.

On December 13, Twitter responded with sarcastic comments like this:

Asia Chloe Brown's tweet responding to Bill Mitchell

But with the December 27 complaint by the Moore campaign, the meme is once again elevated to a last-ditch adversarial tool with the apparent end to subvert the will of the people. Yet the campaign’s complaint basically makes the same argument uttered in the tweets and comments. (1) irregular high turnout by black voters raises suspicion of voter fraud; (2) rumors of voter impersonation voter fraud by outsider voters raise concern; (3) outside partisan involvement (what other people call “politics”) raises suspicion; and (4) statistical analyses by election fraud experts raise suspicion. Moreover, in a quite-odd paragraph 22 of the complaint, we also see the Moore campaign seeking vindication of the truthfulness of their candidate in relation to the allegations that he sought sexual relations with teenage girls:

Paragraph 2 of Roy Moore's complaint

This, somehow, bolsters Judge Moore’s credibility.

Clearly this is a last-ditch effort to forestall the conclusion reached by the Alabama Secretary of State, the Republican Party, President Trump, and, in at least this instance, an Alabama judge — that Jones beat Moore fair and square.

And yet, these allegations should be situated in the larger context of the evolution of the meme of voter fraud into a political weapon designed to distort elections, which started as long ago as 2000 in the hotly contested race between then-Senator John Ashcroft of Missouri and the late governor of Missouri, Mel Carnahan. In the face of a loss to a dead man, the Ashcroft camp argued that dead voters in Missouri tipped the balance. Nothing came of this as Ashcroft went on to be Attorney General and, through investigations by his Department of Justice, put in-person voter impersonation voter fraud on the map. And this leant credence to the movement for voter identification laws.

More famously and recently, President Trump argued via Twitter that the participation of “illegal voters” (read, illegal immigrants) were the reason why he lost the popular vote by nearly three million votes. A year later, President Trump has offered nothing in the way of proof to support this allegation. Also, in the election of 2016, Pat McCrory, who lost the governor’s office in North Carolina to then-Attorney General Roy Cooper, alleged a mass conspiracy of voter fraud denied him the election. Like Moore, McCrory filed objections and when those objections were denied, he sought a recount. The recount, and a subsequent audit by the North Carolina Board of Elections showed few irregularities, including several hundred miscast votes by former felons, some double voting, and one — ONE — vote out of the 4.5 million cast in the North Carolina 2016 gubernatorial race that could have been forestalled by voter identification laws. Voting errors are to be expected, and in North Carolina, those errors certainly did not amount to a grand conspiracy by the Democrats — what McCrory alleged — to steal the election.

Moore’s post-election litigation in the face of the door closing on his campaign fits this same pattern. And, true to form, a judge has declined to equate rumor and innuendo with proof — or even concern — sufficient to stop the mechanisms of democracy from working. The influence of political outsiders, the rumors of black votes being bussed in from Mississippi, and higher than expected African American turnout in predominantly African American counties (which, by the way, was at the same rate as for Clinton last year, as I noted earlier) does not equate to a mass conspiracy of voter fraud.

Alleging a mass conspiracy of voter fraud with nothing but rumor is a bad play. No major state or national election has been reversed because of the meme of voter fraud. Yet it persists because it is a political statement. It is a politics that exists around the idea that the meme is real, and therefore such subversion ought to be opposed. This kind of paranoia can motivate voters. And so, it becomes the equivalent of a party line.

On another level, this use of the meme of voter fraud to attempt to thwart an election is really another battle in the war over American identity. In Alabama, we saw the power of the black vote met with unbelievable conspiracy theories. To make such a claim of voter fraud without tangible proof is to engage in identity politics of the worse kind. It is to delegitimize the votes of citizens because of a set presumption against their citizens’ worthiness through complaining about their votes’ validity. This parrots our too tragic history of violence against minority voting by legislative means.

But it is also the old tactics of voter suppression coming into their own in the era of Trump. This won’t be the last you will hear of the meme of voter fraud.

Give Us the Ballot: On the Alabama Special Senate Election, Voter Suppression, and the Black Vote

In May 1957, Martin Luther King, Jr. gave a landmark speech in Washington, DC. This address, entitled, “Give Us the Ballot” was King’s vision about how Black voting power could transform the apartheid South. In particular, he said: “Give us the ballot, and we will fill our legislative halls with men of goodwill and send … Continue reading “Give Us the Ballot: On the Alabama Special Senate Election, Voter Suppression, and the Black Vote”

“Give us the ballot, and we will fill our legislative halls with men of goodwill and send to the sacred halls of Congress men who will not sign a ‘Southern Manifesto’ because of their devotion to the manifesto of justice.”

Maybe we had a foretaste of King’s foresight as we watched the African American vote defeat Judge Roy Moore and elect Doug Jones to the U.S. Senate from Alabama, a state at the heart of Trump conservatism. And maybe we also saw a glimpse of how an empowered Black vote can be a threat to establishments that rely on their marginalization.

But let me confess up front that I predicted Moore would win—and win outside of the margin of error–because of how Alabama had been dominated by Trump in the 2016 election and how Alabamans had elected Moore twice to statewide office (after he had been removed once and suspended once from his judgeship for violating the U.S. Constitution).

And I also knew that Alabama’s strict voter identification law, its efforts to make such identification less available, and its efforts to modulate (but not eradicate) the collateral consequences of criminal convictions that bar voting all made Alabama a focal point of the voter suppression wars.

Thus, this election was both a referendum on the divisive gender and racial politics of Donald Trump and a test of the ability of the Black community to surmount the effects of voter suppression. And I was a pessimist about both.

In a world absent the allegations that Moore had romantically pursued teenage girls while a District Attorney, absent his Islamophobic stances, and absent the prominence given to various reactionary claims, e.g., all the amendments after the Tenth are “problematic,” I probably would have been right. But all this came to light, and it demobilized white voters and energized Black voters. And that cost Moore the election.

Exit polls reveal that Black voters overwhelmingly voted for Jones and white voters voted overwhelming for Moore. Here’s the data as summarized by the Washington Post:

Roy Moore Doug Jones Alabama senate election exit poll chart from the Washington Post

This was a perfect storm to cause the defeat of Trump’s chosen candidate in the heart of the Trump campaign’s base.

But the data makes two key points: first, the base of white Republican voters voted overwhelmingly for Moore despite the rhetoric and the accusations. This echoes the outcome of the 2016 election. However, fewer moderate Republicans voted for Moore; they instead supported Jones. Had there been more Republican party unity, or a more respectable candidate, the Republicans would probably have won. And presumably, in the next election cycle, Alabama Republicans will unite behind a more respectable candidate.

But this is not to deny the strength of Black voting power. African American voters were consistent with their performance in 2016 in opposing the Trump-Moore politics. This to me is a glimmer of King’s prophesy of how African Americans would use the vote to oppose white supremacy in the name of justice. They compared Moore to Jones and selected the person who they thought was “a man of goodwill.”

This happened despite the post-Shelby County, Alabama v. Holder era of voter suppression to use voter ID laws, racial gerrymandering, and structural efforts to make it more difficult for poor black Alabaman voters. I have previously discussed Alabama’s voter identification laws and the strong risk that such IDs would be unavailable to poor black voters due to DMV closings in the Black Belt (the counties in Alabama which are over 80% black and where there is high poverty). In a recent academic paper, I extend these arguments to talk about how there is a little-discussed structural problem when it comes to failing to prioritize the right to vote—and that structural misgiving can have voter suppression consequences. I have also discussed the Supreme Court’s ruling on the Alabama legislature’s effort to racially gerrymander state districts to pack black voters and preserve white Republican political power.

In short, Alabama is a front line of the post-Shelby County voter suppression wars.

Black voters turned out despite the barriers, and the efforts of civil rights groups to overcome the barriers deserve praise. Between that and the white voters who damned him by few votes, Moore lost.

It is tempting to argue that Black voters’ ability to organize and vote despite voter suppression means voter suppression claims are overblown. That reasoning is faulty. Being able to surmount an illegitimate difficulty doesn’t make the difficulty any less illegitimate. Moreover, numerous federal courts have used the Voting Rights Act of 1965 to strike down voter identification laws because of their potentially disparate discriminatory impact.

The evidence brought in court included academic studies, the documentation of the intent to suppress minority votes, and the statistical risk of disparate effects. It all supports the claim that strict voter identification laws, arbitrary and last-minute changes in the timing of voting, and arbitrary enforcement have been used in concert to unnecessarily intimidate and unduly burden the right to vote (rather than making voting more efficient or secure). This battle continues in Alabama and elsewhere to secure the legacy of the right to vote.

King foresaw what that legacy could be. He knew that the African American electorate could transform the South if voter suppression barriers were removed and African Americans brought the vote to bear. Roy Moore’s defeat by African American voters gave us a glimpse of this transformative power. But it’s also a reminder that the voter suppression war can still be lost.

And it also forces us to wonder anew if this new era of voter suppression exists because of fear of the Black ballot.

Cross-posted on Race and the Law Prof Blog.

Transformations

While on sabbatical this spring, in addition to beginning my book project, I had the opportunity to work on two papers regarding race and voting in the outgrowth of the 2016 election. While these papers take different methodological approaches, they both address the problems of race in politics in the Era of Trump and how race come to shape political considerations in twenty-first century America.

We live in an era that aspires to put the Jim Crow legacy behind us, and yet racial discrimination continues to dominate our political, legal, and cultural conversations. Recognizing that legacy and thinking seriously about how to end it is the dominant theme of these two papers.

Our doctrines mandating antidiscrimination in the law of politics are designed to protect the minority from domination by a racial majority. While this concept is easy to state, the hard questions arise when politicians improperly consider race in politics, as they have in the wake of Shelby County v. Holder. Race consciousness is impossible to avoid in tasks like calibrating voting qualifications and drawing electoral districts, but courts are currently having to determine when the act of drawing the rules of voting is an act that places an impermissible disadvantage on a racial minority in order to maintain one’s political advantage. This problem lies at the heart of my paper, When Political Domination Becomes Racial Discrimination: NAACP v. McCrory and the Inextricable Problem of Race in Politics. Where doctrine has grappled with political racial domination, with the election of Donald Trump, American politics seems to have entered an era of the open re-emergence of white identity politics. But this centering of whiteness is nothing new, and its enduring power comes in part from the fact that its justifications and subordinations are often explained away. And thus, in the words of Sara Ahmed (who’s article prompted the CUNY Law Review’s publication of the collection in which my article appears) racial domination is explained away as “something else.” In Normalizing Domination, I bring this insight to bear in the law of politics.

Article Abstracts and Full-Text Links

South Carolina Law Review logo When Political Domination Becomes Racial Discrimination: NAACP v. McCrory and the Inextricable Problem of Race in Politics, South Carolina Law Review Vol. 68 (2017).
In North Carolina State Conference of the NAACP v. McCrory, the United States Court of Appeals for the Fourth Circuit struck down North Carolina’s 2013 omnibus voting law due to its discriminatory effect and the fact it was passed with an intent to abridge the ability of African Americans to vote. This decision represents a landmark victory for voting rights advocates against strict voter identification laws and other similar regulations that foster voter suppression. It also represents a remarkable and extraordinary use of the Arlington Heights doctrine to address the race or politics problem in election law. This Article examines the McCrory decision with an eye towards parsing out how the court arrived at this due care approach. It then confronts the uncertain future of McCrory considering the difficulties in distinguishing impermissible racial motives and permissible political motives, the uncertain judicial future of the post-Shelby County Voting Rights Act, and the academic literature disfavoring race-conscious remedies. The Article concludes optimistically by noting that whether McCrory represents a momentary victory in the larger attack against the Voting Rights Act or whether it stands as good law for the foreseeable future, the opinion offers a well-reasoned approach that accomplishes the ends of the Constitution and the Voting Rights Act through offering a race-conscious intersectional approach grounded in the reality of voter suppression in North Carolina.

City University of New York Law Review logo
Normalizing Domination, CUNY Law Review Vol. 20: Iss. 20 (2017).
In the 2016 election, a sufficient majority of white voters in key battleground states elected Donald Trump president. In voting for Trump, these voters, as part of the minority of voters that supported Trump, had to, through their vote, either embrace or ignore his racist, sexist, xenophobic, and homophobic rhetoric. Though it is impossible to know which, their votes nonetheless served to “normalize domination”—that is, their act of legitimizing Trump’s rhetoric made the absurd or incendiary commonplace and acceptable. Even before the 2016 election, institutions and individuals have normalized of the ideology of white supremacy by camouflaging it with other normative values while at the same time allowing it to flourish and reinvent itself. It asserts an epistemology of failing to know racism–a key component of what scholars know as post-racialism – as a means of achieving colorblindness. The late great Derrick Bell recognized how the underlying structure of American politics is defined by domination that embraces white identity politics as central. Thus, the institutions that continue American democracy seek to organize the American political and legal structure to protect such domination. This short essay focuses on this problem through a brief examination of the American law of politics and argues for a new race consciousness can be used as a compass to understand the structure of political domination and thus subvert such domination to create an egalitarian society.

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).

Lecture on Gill v. Whitford
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
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.

TEDxOshkosh 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 issues
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 reversal 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.

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.