Monday, October 29, 2018

Daily Read: Posse Comitatus and the Constitution

The reported announcement that the United States is sending "5,200 troops, military helicopters and giant spools of razor wire to the Mexican border in the coming days to brace for the arrival of Central American migrants President Trump is calling 'an invasion," raises the question of Presidential authority under the Constitution.

A good read is by Ohio State University/Mortiz College of Law Professor Dakota S. Rudesill, The Land and Naval Forces Clause, 86 University of Cincinnati Law Review 391 (2018), available on ssrn.

Rudesill.2Professor Rudesill (pictured) asks "What is the constitutional textual basis for key statutes that constrain the national security apparatus and condition the President’s ability to direct it – statutes that are neither spending limitations, nor war declarations or authorizations for the use of military force (AUMFs), nor militia laws?"

He notes that there are a series of such statutory frameworks, including the Posse Comitatus Act and its relatives which generally operates  as a default ban on active duty federal armed forces engaging in law enforcement. He argues that the best textual footing for such statutes is Article I, Section 8, Clause 14 of the Constitution. This clause gives Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.” 

Rudesill concludes:

The statutory frameworks at the heart of the national security legal regime that find textual grounding in the Forces Clause are important to the republic at any moment. There are constant and enduring operational pressures and political incentives for the Executive Branch to disregard the law and its liberty/security balancing work. These statutory frameworks are of special importance, however, in a time of chronic national insecurity: war without end against transnational terrorist networks and within cyberspace, and the alarm and constant engagement of the military and intelligence apparatus they engender. These statutory frameworks safeguard liberty in the atmosphere of uncertainty and fear that national insecurity, together with dysfunctional government and volatile politics, produces. Such anxiety was not, of course, unknown to the Framers . . . .

He contends that Courts could take up the issues, but also Congress has an important role:

Congress’s authority to govern and regulate the land and naval forces and control their Commander in Chief is contingent. The Forces Clause does not stipulate a one-way ratchet toward greater liberty protections. Congress could choose not to use the Forces Clause’s authority – it could acquiesce to harsh presidential discipline of the military, authoritarian employment of it against the people, or reckless use of it abroad. Congress could use the Clause’s authority to weaken FISA, the Posse Comitatus Act, and other liberty-protecting laws. Or, Congress could choose to use the Clause’s authority actively – and more explicitly and consistently – to balance liberty and security considerations in a manner that protects both. The Clause’s potential, like the republic’s fate, ultimately resides with Congress and the love of liberty among the people the Article I branch represents, governs, and protects.

An interesting read as the composition of Congress is at issue in the midterm election.

October 29, 2018 in Congressional Authority, Executive Authority, Scholarship | Permalink | Comments (0)

Tuesday, October 23, 2018

CFP: Kavanaugh Nomination

CFP from Journal of Civil Rights and Economic Development at St. John's University School of Law.

JCRED

An America Divided: The Kavanaugh Nomination

The nomination and subsequent appointment of Brett Kavanaugh to the Supreme Court of the United States have sparked turmoil, outrage, and even more conflict to an already extremely divided America. Many agree, on the right and left, that the Senate hearings featuring Dr. Blasey Ford and Judge Brett Kavanaugh were historic, shocking and yet also affirming of deep-seated beliefs and fears. The hearings and subsequent events have revealed fundamental disagreement about fair and effective treatment of sexual violence survivors, about due process for those accused of sexual violence and about our collective expectations of the role, the demeanor, temperament and moral conduct of judges. . . .

We welcome full-length traditional law review articles with a maximum of 75 pages, as well as shorter essays and commentaries with a minimum of 10 pages. Authors will be selected based on brief abstracts of their articles, essays or commentaries. We aim to ensure an array of perspectives, methodologies and expertise.

SUBMISSION DEADLINES:
Abstract Deadline: November 12, 2018
Selected Authors Notification Date: November 30, 2018
Final Manuscript Submission Deadline:
January 15, 2019

full call and submission details here

 

 

October 23, 2018 in Conferences, Gender, Interpretation, Scholarship, Supreme Court (US) | Permalink | Comments (0)

Saturday, October 13, 2018

CFP: Women and the Law

 

2019 Detroit Mercy Law Review Symposium: Women and the Law

Call for Papers and Presentations

Deadline: November 9, 2018

The Law Review at University of Detroit Mercy School of Law will be hosting its 103rd annual symposium: Women and the Law.

Call for Proposals

The Detroit Mercy Law Review is accepting proposals for the 2019 Symposium: Women and the Law. The Detroit Mercy Law Review Symposium will take place on Friday, March 8, 2019 (International Women’s Day) in Detroit, Michigan. Possible topics include, but are not limited to: the history of women in the law, how women have impacted the law, how the law impacts women today, how future legal decisions could affect women’s rights (e.g. if Roe v. Wade, 410 U.S. 113 (1973) were to be overturned), what challenges women still face in the legal profession, the role of gender in the law, and any other topic regarding women and the law.

Proposals should be approximately 250-500 words, double-spaced, and detail the proposed topic and presentation.

Submission Procedure

The deadline to submit proposals is Friday, November 9, 2018 at 5PM EST. All proposals should be submitted to Samantha Buck, Symposium Director, at bucksl AT udmercy.edu. Please indicate whether your proposal is for a presentation only or if you would also like to publish an article with the Detroit Mercy Law Review on your presentation topic. If you are interested in submitting an article, it will be due to the Law Review on Friday, March 15, 2019. Please submit a current CV or resume along with your proposal. We will notify chosen speakers by November 30, 2018. Preference will be given to those willing to submit an article for publication.

October 13, 2018 in Conferences, Gender, Scholarship | Permalink | Comments (0)

Sunday, September 23, 2018

CFP: ACS Constitutional Law Scholars

Screen Shot 2018-09-23 at 11.55.53 AM

The student chapter of the American Constitution Society at Barry University School of Law and Texas A&M University School of Law are hosting the Fourth Annual Constitutional Law Scholars Forum at the Dwayne O. Andreas School of Law Campus, 6441 East Colonial Drive, Orlando, FL 32807. 

The Constitutional Law Scholars Forum invites scholarly proposals on constitutional law at any stage of pre-publication development, from the germination of an idea to the editing stage.  The Forum provides an opportunity for scholars and educators to vet their work-in-progress in a welcoming, supportive environment.  (The Forum is not accepting proposals from students at this time.)

 

The deadline to submit proposals is December 1, 2018.

 There are no conference fees and meals are provided.

 

Abstract Submissions:

Email proposals to Professor Eang Ngov, engov@barry.edu, with “Constitutional Law Scholars Forum” in the subject line.  Submissions should include a short abstract (300 words maximum) and biography (150 words maximum).

Conference Organizers: 

Professor Eang Ngov, engov@barry.edu, office (321) 206 -5677, cell phone (571) 643-2691

Professor Meg Penrose, megpenrose@law.tamu.edu

September 23, 2018 in Conferences, Scholarship | Permalink | Comments (0)

Thursday, September 20, 2018

Daily Read: Some Women Legal Scholars on the First Amendment

Over at "First Amendment News" (FAN) by Ron Collins, a symposium of 15 women scholars on the current state of the First Amendment. In her forward, Kellye Testy comments on the "relative lack of women’s visibility in First Amendment jurisprudence," by noting that what “counts” as First Amendment scholarship is subject to a sexist lens and that  protecting "free speech" can be a male preoccupation given that "men who have had “free speech” want to keep speaking," but  "women’s speech has been restrained, both as a matter of formal law and of social practices, including violence."

A number of the contributions focus on free speech in the "Trump-era" or in the "internet-era" or both, including my own.

Here's the list of authors and titles, all accessible here:

Jane Bambauer, “Diagnosing Donald Trump: Professional Speech in Disorder”

Mary Anne Franks, “The Free Speech Fraternity”

Sarah C. Haan, “Facebook and the Identity Business”

Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech”

Marjorie Heins, “On ‘Absolutism’ and ‘Frontierism’”

Margot Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place”

Lyrissa Lidsky, “Libel, Lies, and Conspiracy Theories”

Jasmine McNealy, “Newsworthiness, the First Amendment, and Platform Transparency”

Helen Norton, “Taking Listeners’ First Amendment Interests Seriously”

Tamara Piety, “A Constitutional Right to Lie? Again?: National Institute of Family and Life Advocates d/b/a NIFLA v. Becerra”

Ruthann Robson, “The Cyber Company Town”

Kelli Sager& Selina MacLaren, “First Amendment Rights of Access”

Sonja West, “President Trump and the Press Clause: A Cautionary Tale”

September 20, 2018 in First Amendment, Gender, Scholarship | Permalink | Comments (0)

Wednesday, September 12, 2018

Call for Participation: UNLV Symposium on Dignity, Tradition, and Constitutional Due Process

The UNLV William S. Boyd School of Law is calling for presenters and commenters for this exciting symposium, Dignity, Tradition, & Constitutional Due Process: Competing Judicial Paradigms, March 14-15, 2019, in Las Vegas.

The Court's determination regarding which paradigm to apply [a "deeply rooted" historical paradigm, or a "dignity" paradigm] depends, of course, on which receives at least five affirmative votes in any given appeal. Until his recent retirement, Justice Anthony Kennedy usually was the deciding vote. The probable confirmation of Hon. Brett Kavanaugh to Kennedy's seat may portend severely limited use of the dignity paradigm, if not its effective demise.

Our symposium . . . explores which of these two seemingly irreconcilable standards is correct, or whether there are one or more alternative approaches the courts should use.

Here's the full call; proposals are due by October 8, 2018, to Professor Peter B. Bayer, peter.bayer@unlv.edu.

September 12, 2018 in Conferences, News, Scholarship | Permalink | Comments (0)

Tuesday, August 28, 2018

ACS Call for Papers: Junior Scholars Public Law Workshop at the AALS

The American Constitution Society is calling for papers for its Junior Scholars Public Law Workshop at the 2019 AALS Conference. The official call for papers is here; here are the details:

The American Constitution Society is pleased to announce a call for papers for a workshop on public law to be held the afternoon of Thursday, January 3, 2019, at the 2019 AALS Annual Meeting in New Orleans. A committee composed to ACS's Board of Academic Advisors will select approximately 10 papers, and each selected author will have the opportunity to discuss his/her paper, as well as the paper of another author, in depth with two experienced scholars from the ACS network, which includes Erwin Chemerinsky, Pamela Karlan, Bill Marshall, Reva Siegel, Mark Tushnet, and Adam Winkler.

Papers can be on any field related to public law, including but not limited to: constitutional law, administrative law, antidiscrimination law, criminal law, environmental law, family law, federal courts, financial regulation, public international law, society welfare law, and workplace law.

The deadline for submissions is 11:50 p.m. on October 19, 2018. Submissions should be works that will not be published as of January 1, 2019.

Submissions should be emailed in Microsoft Word or PDF format to juniorscholarsworkshop@acslaw.org. Please indicate in the subject line "Submission for ACS Junior Scholars Public Law Workshop" and include the author's name, school, and contact information in a cover email. The cover email should also identify the field(s) in which the paper falls.

Tenure-track and tenured faculty, or faculty with similar status, who have been full-time law teachers for 10 years or less as of December 31, 2018, are eligible to participate. Co-authored submissions are permissible, but each of the coauthors must be individually eligible to participate in the workshop.

Authors are limited to one submission each. Selections will be made by November 16, 2018. Authors must arrange their own travel to the AALS Annual Meeting.

Inquiries may be sent to Kara Stein, at kstein@acslaw.org.

 

August 28, 2018 in News, Scholarship | Permalink | Comments (0)

Wednesday, August 22, 2018

Check it Out: Driver on Public Education, Con Law, and the American Mind

Check out Justin Driver's (U. Chicago) expansive, meticulous, and engrossing new book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind. The title speaks for itself, but here's from the intro:

At its core, this book argues that the public school has served as the single most significant site of constitutional interpretation within the nation's history. No other arena of constitutional decisionmaking--not churches, not hotels, not hospitals, not restaurants, not police stations, not military bases, not automobiles, not even homes--comes close to matching the cultural import of the Supreme Court's jurisprudence governing public schools.

That's because of "the importance of that venue for shaping attitudes toward the nation's governing document." Still, "[i]n recent decades . . . such sentiments appear more often in the Court's dissenting opinions than in its majority opinions."

Driver tells us what to do about that.

 

August 22, 2018 in Books, News, Scholarship | Permalink | Comments (0)

Saturday, August 18, 2018

Check it Out: Chicago-Kent Symposium on the Court and American Politics

Check out Chicago-Kent Law Review's outstanding symposium issue, The Supreme Court and American Politics, edited by Profs. Christopher Schmidt and Carolyn Shapiro.

August 18, 2018 in Courts and Judging, News, Scholarship | Permalink | Comments (0)

Thursday, August 16, 2018

Check it Out: Notre Dame Law Review's Symposium on Qualified Immunity

Check out the Notre Dame Law Review's symposium issue, The Future of Qualified Immunity.

August 16, 2018 in News, Scholarship | Permalink | Comments (0)

Wednesday, August 8, 2018

Check it Out: Baude on Madison's Constitutional Liquidation

Check out William Baude's (U. Chicago) piece Constitutional Liquidation, forthcoming in the Stanford Law Review. Baude explores James Madison's idea that the Constitution's meaning could be "liquidated" and settled by practice. From the abstract:

Constitutional liquidation has three key elements. First, there had to be a textual indeterminacy. . . . Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and "the public sanction"--a real or imputed popular ratification.

Baude says that liquidation "provides a structured way for understanding . . . departmentalism," "could provide a salutary improvement over the modern doctrine of stare decisis," "is consistent with the core arguments for adhering to tradition," and "is less susceptible to some of the key criticisms against the more capacious use of historical practice."

August 8, 2018 in Interpretation, News, Scholarship | Permalink | Comments (0)

Wednesday, August 1, 2018

Check it Out: Morley on Prophylactic Redistricting

Check out Prof. Michael Morley's new piece, Prophylactic Redistricting? Congress's Section 5 Power and the New Equal Protection Right to Vote, in the William & Mary Law Review.

Morley argues that traditional remedial features of Section 2 of the Voting Rights Act are getting squeezed from two sides: (1) Boerne and reduced congressional authority to enforce the Fourteenth and Fifteenth Amendments mean that the Court will likely give a narrower reading to Section 2 (focusing only on intentional discrimination); and (2) the Court's shift to a "pro-equality" (and away from a "pro-vote") approach to the right to vote mean that courts will likely say that any legislative expansions of the franchise have to be shared equally by all. Here's what to do about it:

Courts may apply section 2 more aggressively to defendant jurisdictions or officials that have a recent history of engaging in intentional racial discrimination concerning the right to vote. They should also be more willing to allow prophylactic applications of section 2 in circumstances where direct evidence of constitutional violations (that is, intentional discrimination) would be impracticable or impossible to uncover. Finally, remedies under section 2 should not be broader than necessary to achieve its important prophylactic purposes. Section 2 runs a risk: the more it deviates from the mandates of the Court's developing conception of equal protection, and does so in a race-conscious manner that almost invariably inures to the benefit of a particular political party, the greater skepticism it will trigger in the courts. It places courts in the difficult position of reshaping both the rules of elections and the shape of electoral districts to attempt to replicate what a fair electoral outcome in the absence of past and present society discrimination would look like. Such awesome power demands careful use.

August 1, 2018 in Congressional Authority, Elections and Voting, Fundamental Rights, News, Scholarship | Permalink | Comments (0)

Monday, July 2, 2018

Daily Read: SCOTUS Justice Retirements and Political Goals

 In a recently updated and forthcoming article, Do Justices Time Their Retirements Politically? An Empirical Analysis of the Timing and Outcomes of Supreme Court Retirements in the Modern Era, by Christine Kexel Chabot (pictured) of Loyola-Chicago, she set out to explore whether or not Justices timed their retirements for political effect. 

Christine_chabotWith Kennedy's announced retirement, her empirical research of past retirements is quite relevant. She concludes:

Justices’ political retirement goals have often turned out to be wishful thinking. Some Justices found that they were relatively far removed from ideologies of party leaders (and potential successors) by the time they retired, and Justices who timed their retirements politically had limited success in obtaining like-minded replacements.

A fascinating read.

July 2, 2018 in Scholarship, Supreme Court (US) | Permalink | Comments (0)

Friday, June 29, 2018

Check it Out: Rosenthal Measures How Originalist are Originalists

Check out Prof. Lawrence Rosenthal's (Chapman) piece, An Empirical Inquiry into the Use of Originalism: Fourth Amendment Jurisprudence During the Career of Justice Scalia. Rosenthal finds

that originalism played a small role in Fourth Amendment jurisprudence during the study period . . . . Despite Justice Scalia's professed commitment to originalism, he voted on originalist grounds in only 18.63% of cases. The Court's other professed originalist, Justice Clarence Thomas, voted on originalist grounds in only 15.71% of cases. . . . Voting patterns were not markedly different for justices who do not profess fealty to originalism.

June 29, 2018 in Interpretation, News, Scholarship | Permalink | Comments (0)

Wednesday, May 2, 2018

Daily Read: The President and Defamation on Twitter by McKechnie

Apropos of the defamation complaint filed by Stephanie Clifford a/k/a Stormy Daniels which we discussed here, an excellent read is the article @POTUS: Rethinking Presidential Immunity in the Time of Twitter by Professor Douglas McKenchnie  (United States Air Force Academy; pictured) published in the University of Miami Law Review.

Douglas_McKechnieMcKenchie's article, published in 2017, considers the President's use of Twitter.  McKenchie argues that malicious defamation falls outside the “outer perimeter” of official presidential duties and thus presidential immunity is inapplicable. 

This addresses a broader issue than whether a sitting president can be sued, but uses a number of doctrines - - -  presidential immunity; immunity for executive branch officials; the constitutional implications of defamation; and the Fifth and Fourteenth Amendments’ prohibition on government action motivated by animus - - - to support its conclusion.

Worth a read.

May 2, 2018 in Equal Protection, Executive Privilege, First Amendment, Scholarship, Theory | Permalink | Comments (0)

Tuesday, April 17, 2018

Daily Read: Curing the Inequality of Privacy Protections

Whose privacy counts? Whose privacy should count?

While these questions could be asked across many doctrines, one intersection occurs in the origins of privacy, including the tort remedies for its invasion. In his article Privacy's Double Standards, available on ssrn and forthcoming in Washington Law Review, Professor Scott Skinner-Thompson argues for the necessity of equal protection standards in privacy protection torts. Centered on the tort of public disclosure of private facts, Skinner-Thompson rightly observes that it has been applied unevenly, with privileged and celebrity plaintiffs prevailing (think: Hulk Hogan v. Gawker) when more marginalized plaintiffs (such as victims of revenge porn) have not, noting that this is perhaps not surprising given the origins of the tort in "Brahman society." Skinner-Thompson discusses these cases and numerous others to support this observation (and provides a nice appendix of his research methodology).

Edgar_Degas_-_Mrs_Jeantaud_in_the_Mirror_-_Google_Art_ProjectYet rather than simply detail the disparities evinced in the cases, Skinner-Thomson argues that just as the First Amendment has shaped the doctrines of torts, so too should constitutional equality principles be applied to the inequalities in tort remedies for invasions of privacy. He argues that "to better comply with constitutional equality principles, the substance of privacy tort law must be relaxed so as to ensure that individuals in marginalized communities are able to bring claims on the same terms as privileged individuals."

His specific recommendations for reshaping the tort doctrine of public disclosure of private facts:

  • All plaintiffs, and not just well-known ones, should be able to prevail in public disclosure tort claims" even if they have shared the information at issue (for example, their HIV status, sexual orientation, or intimate photographs) within certain confines."
  • All plaintiffs should be able to prevail in public disclosure tort claims even if the defendant has not shared the information with the world at large (for less well-known plaintiffs, the interest of the world can be limited, but, for example, disclosure of one's sexual orientation to one's small community church can be equally devastating).

As Skinner-Thompson makes clear, he is not arguing that a privacy tort plaintiff  " will be able to successfully bring an equal protection challenge to the way the public disclosure tort is operating," but it is to argue that this tort could be  - - - and should be - - - inflected with equal protection concerns.  

[image: Edgar Degas, Mrs Jeantaud in the Mirror, circa 1875 via]

April 17, 2018 in Equal Protection, First Amendment, Privacy, Profiles in Con Law Teaching, Scholarship | Permalink | Comments (0)

Monday, March 26, 2018

Check it Out: Schmidt on Student Protests, from Lunch Counters to Guns

Check out Chris Schmidt's piece in the Washington Post earlier this month on student activism, from the lunch-counter sit-ins to gun control.

Prof. Schmidt also recently published The Sit-Ins: Protest and Legal Change in the Civil Rights Era with the University of Chicago Press.

March 26, 2018 in News, Scholarship, Second Amendment, Speech | Permalink | Comments (0)

Wednesday, January 31, 2018

Check it Out: Frost on Nationwide Injunctions

Wednesday, January 17, 2018

CFP: Junior Scholars

Call for submissions for Junior Scholars (1-7 years) from Yale/Stanford/Harvard Junior Faculty Forum to be held June 13-14, 2018, Harvard Law School

deadline: March 1, 2018

Yale, Stanford, and Harvard Law Schools are soliciting submissions for the 19th session of the Yale/Stanford/Harvard Junior Faculty Forum, to be held at Harvard Law School on June 13-14, 2018. Twelve to twenty junior scholars (with one to seven years in teaching) will be chosen, through a blind selection process, to present their work at the Forum. One or more senior scholars will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. The goal of the Forum is to promote in-depth discussion about particular papers and more general reflections on broader methodological issues, as well as to foster a stronger sense of community among American legal scholars, particularly by strengthening ties between new and veteran professors.

TOPICS: Each year the Forum invites submissions on selected topics in public and private law, legal theory, and law and humanities topics, alternating loosely between public law and humanities subjects in one year, and private law and dispute resolution in the next. For the upcoming 2018 meeting, the topics will cover these areas of the law:

  • - Administrative Law
  • - Constitutional Law—theoretical foundations
  • - Constitutional Law—historical foundations
  • - Criminal Law
  • - Critical Legal Studies
  • - Environmental Law
  • - Family Law
  • - Jurisprudence and Philosophy
  • - Law and Humanities
  • - Legislation and Statutory Interpretation
  • - Public International Law
  • - Race/Gender Studies/Antidiscrimination
  • - Workplace Law and Social Welfare Policy


A jury of accomplished scholars, not necessarily from Yale, Stanford, or Harvard, will choose the papers to be presented. There is no publication commitment. Yale, Stanford, or Harvard will pay presenters' and commentators' travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: Authors who teach at a U.S. law school in a tenured or tenure-track position and have not have been teaching at either of those ranks for a total of more than seven years are eligible to submit their work. American citizens or permanent residents teaching abroad are also eligible provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for fewer than seven years and that they earned their last degree after 2008. International scholars are not eligible for this forum, but are invited to submit to the Stanford International Junior Faculty Forum. We accept co-authored submissions, but each of the coauthors must be individually eligible to participate in the JFF. Papers that will be published prior to the Forum are not eligible. There is no limit on the number of submissions by any individual author. Junior faculty from Yale, Stanford, and Harvard are not eligible. 


PAPER SUBMISSION PROCEDURE:

Electronic submissions should be sent to Rebecca Tushnet, rtushnet AT law.harvard.edu with the subject line “Junior Faculty Forum.” The deadline for submissions is March 1, 2018. Remove all references to the author(s) in the paper. Please include in the text of the email and also as a separate attachment a cover letter listing your name, the title of your paper, your contact email and address through June 2018, and which topic your paper falls under. Each paper may only be considered under one topic. Any questions about the submission procedure should be directed both to Rebecca Tushnet and her assistant, Andrew Matthiesen, amattjiesen AT law.harvard.edu.

January 17, 2018 in Conferences, Scholarship | Permalink | Comments (0)

Monday, January 15, 2018

Daily Read: MLK and Affirmative Action

For Martin Luther King day, a good read is Professor David B. Oppenheimer's article Dr. King’s Dream of Affirmative Action, available on ssrn

Oppenheimer mentions the plans of the President and Attorney General Sessions to challenge affirmative action policies in higher education as a form of discrimination against white people and predicts that they will eventually use  Dr. King’s “I Have A Dream” speech as evidence that Dr. King would be supporting their position if he were still alive.  The President's Proclamation for MLK Day does not mention affirmative action (or civil rights), but does allude to King's most famous speech by including the arguably "color-blind" rejecting judgment based on "color of their skin" in favor of "content of their character." (The Proclamation states "Dr. King advocated for the world we still demand — where the sacred rights of all Americans are protected, rural and urban communities are prosperous from coast to coast, and our limits and our opportunities are defined not by the color of our skin, but by the content of our character.")

Martin_Luther_King_Jr_NYWTS_4Yet as Professor Oppenheimer argues it is simplistic - - - and incorrect - - - to conclude that Martin Luther King's political theorizing can be reduced to a convenient "color-blind" position. Oppenheimer writes:

While I have found no instance of Rev. Dr. Martin Luther King, Jr. ever using the term “affirmative action,” forty-eight years after his assassination his name is often invoked in the affirmative action debate by opponents of race-based affirmative action, who cite Dr. King’s “I have a dream” speech as evidence that he supported “color-blind” policies, and thus presumably would have opposed race-conscious affirmative action. But when we examine the historical record it is clear that while Dr. King dreamed of a time when racism – and thus race – would be irrelevant, he was a supporter of both of these forms of affirmative action. On the one hand, he spent much of the last six years of his life actively promoting what we would describe today as race-conscious affirmative action, including the use of racial quotas in employment. Specifically, from 1962-68 Dr. King orchestrated and implemented “Operation Breadbasket,” a civil rights boycott campaign that demanded employment quotas for Black American workers based on their numbers in a workforce, neighborhood or city. Yet on the other hand, with regard to class-based affirmative action, Dr. King supported a massive war on poverty.  In advocating for special benefits for poor Americans he sometimes used color-blind language and pointed out that it would benefit poor whites as well as poor Blacks, while at other times he justified it as an example of the kind of reparations to which Black Americans were entitled under the equitable remedy of restitution for unpaid wages.

In his discussion of the constitutional law doctrine and theory surrounding affirmative action, Oppenheimer includes the United States Supreme Court's reaction to organized efforts to mandate affirmative action in Hughes v. Superior Court for Contra Costa County (1948) in which the Court stated:

that the picketing here involved, and upon which the judgment of contempt is based, was for the attainment of an unlawful objective, viz.: not to induce Lucky [grocery store] not to discriminate against, but, rather, expressly to compel Lucky to discriminate arbitrarily in favor of, one race as against all others in the hiring of a portion of its clerks; and that therefore the injunction was properly issued and the judgment of contempt should stand. With this position, upon the record here, we must agree.

Oppenheimer writes that while the Supreme Court was willing to affirm the legitimacy of protesting discrimination, but unwilling to give any approval to demands for proportional hiring, the demands for "proportional hiring nonetheless persisted, and would become a critical part of Dr. King’s campaign for racial justice in the last six years of his life."

It seems pretty clear that MLK supported what is now known as  "affirmative action."

 

 

January 15, 2018 in Current Affairs, Equal Protection, First Amendment, Fourteenth Amendment, Race, Reconstruction Era Amendments, Scholarship | Permalink | Comments (0)