Constitutional Law Prof Blog

Daily Read: Plessy v. Ferguson Revisited

In his essay review of the new book Separate: The Story of Plessy v. Ferguson, and America's Journey from Slavery to Segregation by Steve Luxenberg, critic Louis Menand retells the history of the Plessy v. Ferguson decision: infamous in hindsight but unnoticed in its time. Menand remarks, “even when principal figures in the case died, years later, their obituaries made no mention of it.” Menand contextualizes the case within the post-Reconstruction Jim Crow south and examines Plessy’s role in enshrining white supremacy.

Menand provides a rich discussion of Luxenberg’s hefty book (at 624 pages) which focuses its narrative on three key players in Plessy v. Ferguson: “Albion Tourgée, one of Plessy’s lawyers; Henry Billings Brown, the Justice who wrote the majority opinion; and John Marshall Harlan, who filed the lone dissent.” Menand’s assessment of the book is mixed. For example, Menand writes that the book is

deeply researched, and it wears its learning lightly. It’s a storytelling kind of book, the kind of book that refers to Albion Tourgée as Albion and John Harlan as John, and that paints the scene for us (“On a bright and beautiful night in late October 1858 . . . ”). Luxenberg does not engage in psychological interpretation. He doesn’t mention, for instance, that [Justice Henry Billings] Brown’s Yale classmates called him Henrietta because they thought he was effeminate—which might have contributed to Brown’s eagerness not to appear like a man who didn’t belong. And he dismisses in a footnote speculation that Robert Harlan, a man of mixed race who grew up as a member of John Harlan’s family, might have been a half brother. Even if he wasn’t in fact related to John, however, it might have mattered if John believed otherwise.

In short, Menand concludes that while the book is a "different way to tell the story,"  it "does not give us a new story," and observes that it "does seem a misjudgment to tell the story of an important civil-rights case as the story of three white men."

But while Menand argues that the book doesn't ultimately help with "the big historical questions," it is clear from Menand's review that the book offers deep insights into the case that constitutionalized racial segregation as equality.  In Plessy, the United States Supreme Court betrayed the promise — and meaning — of the the Fourteenth and Thirteenth Amendments to the Constitution.  By focusing at the legal actors who participated in the case, including Tourgée who argued for Plessy, Luxenberg's book is sure to attract attention from constitutional scholars and students.  I look forward to reading it.

 

Tenth Circuit: State is Immune From Federal Slavery Claim

Steven D. Schwinn, John Marshall Law School

The Tenth Circuit ruled in Mojsilovic v. State of Oklahoma that the state's sovereign immunity barred the plaintiffs' forced-labor claim under the federal Trafficking Victims Protection Reauthorization Act. The ruling ends this case.

The plaintiffs, Danijela and Aleksandar Mojsilovic, were hired by the University of Oklahoma on H-1B visas to conduct DNA sequencing and issue typing and to make transfectants and tissue cultures. Their supervisor, Dr. William Hildebrand, forced them to work longer hours than permitted by their visas, without pay, for his private corporation, Pure Protein, on threat of having their visas revoked. The Mojsilovic's sued under the TVPRA, seeking monetary damages under the Act; the University asserted sovereign immunity; and the district court dismissed the case.

The Tenth Circuit affirmed. The court ruled that Congress enacted the TVPRA under its Commerce Clause authority (and not its Thirteenth Amendment authority), and so could not abrogate state sovereign immunity under the Eleventh Amendment. In any event, the court said that any abrogation wasn't sufficiently clear in the language of the TVPRA. (The TVPRA applies to "whoever," without specifically naming "states.")

The ruling, while not surprising under the Court's abrogation doctrine, illustrates the impact of the rule that Congress cannot abrogate state sovereign immunity using its Commerce Clause authority. It means that states and state agencies can get away with trafficking, slavery, involuntary servitude, forced-labor, and the like without incurring TVPRA liability.

Congress could, of course, change this by making clear that the TVPRA is enacted under the Thirteenth Amendment and clearly abrogating state sovereign immunity.

Daily Read: Slavery and the Original Constitution

The question of whether the institution of chattel slavery is inherent in the Constitution is being debated in the popular press.

In an op-ed in the New York Times, Sean Wilentz argues that "the myth that the United States was founded on racial slavery persists, notably among scholars and activists on the left who are rightly angry at America’s racist past."  He concludes

Far from a proslavery compact of “racist principles,” the Constitution was based on a repudiation of the idea of a nation dedicated to the proposition of property in humans. Without that antislavery outcome in 1787, slavery would not have reached “ultimate extinction” in 1865.

Over at the New Republic, Lawrence Goldstone argues Wilentz is absolutely wrong.  Sure, the Constitution's framers avoided the word "slavery" in the document itself, just as in the debates they "almost always employed euphemisms such as 'this unique species of property, 'this unhappy class,' or 'such other persons.' "  Goldstone concludes that perhaps it may be correct to say that "the Constitution didn’t specifically anoint slavery as a national institution," but nevertheless "in clause after clause it tried to make certain that slavery would endure as one."

To see such matters debated in the popular press, even in such abbreviated form, has been stimulating to many ConLaw students studying the issue in class.

circa 1789 via

Daily Read: Corey Robin on Dignity (and Whitney Houston)

Over at his eponymous blog, CUNY-Brooklyn Political Science professor Corey Robin has an interesting take on the controversial passage from Justice Thomas's dissent in Obergefell criticizing the "dignity" rationale of Kennedy's opinion for the Court by stating in part that slaves" did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. " 

Robins's post, "From Whitney Houston to Obergefell: Clarence Thomas on Human Dignity," is worth a read, and even worth a listen if you are so inclined.

 

 

Daily Read: Ellis and Jones on the 50th Anniversary of the March on Washington for Jobs and Freedom

Several media and legal outlets are running impressive commentaries on this fiftieth anniversary of the March on Washington for Jobs and Freedom led by Martin Luther King, Jr.

Here are two that should not be missed.

Over at ACS blog, Law Prof Atiba Ellis writes on "The Moral Hazard of American Gradualism: A Lesson from the March on Washington."  Ellis states, "the question we must confront in 2013 is whether we have been tranquilized into the lethargy of gradualism concerning the work that needs to be done."   Ellis highlights the Court's decisions last term in Shelby and in Fisher as examples of "the new American gradualism – retrogressive action under the cover of apathy, spurred by the myth of post-racialism and the supposed fear of constitutional overreach."

And on NPR's Morning Edition, journalist Michele Norris profiles Clarence B. Jones as an attorney and "guiding hand" behind the "I Have a Dream" speech, including the famous "promissory note" metaphor.  However, Norris also highlights Jones' memoir Behind The Dream, which had "some unlikely source material."  Indeed, Jones' memoir may be more accurate than most, since his memory was augmented by transcripts of every single phone conversation he had with King, courtesy of the FBI, in a wiretap authorized by Robert Kennedy as Attorney General.  The NPR story has a link to the FBI archive on King. 

RR
[image via]

 

"Lincoln" Errs . . . And Corrects Errors

Prof. Edward Zelinsky (Cardozo) wrote last week in the Hartford Courant about a mistake in the movie "Lincoln."  The error: Lincoln wouldn't have signed the Amendment.  Zelinsky explains:

In a particularly effective scene in a movie with many more of them, President Abraham Lincoln holds aloft a pen for emphasis and forcefully declares his intent to soon sign the 13th Amendment, abolishing slavery.  The problem is that presidents do not sign constitutional amendments.  Abraham Lincoln, the best lawyer to ever serve as the nation's chief executive, undoubtedly knew this.  He would not have declared his intention to sign an amendment that was not his to sign.

But Zelinsky's willing to cut screenplay author Tony Kushner some slack:

Mr. Kushner's liberties with the details of the Constitution served a legitimate artistic mission by graphically portraying Lincoln's personal commitment to the abolition of slavery.  As the movie makes clear, the abolition of slavery via the 13th Amednment was not inevitable.  Lincoln's commitment was decisive.

As Zelinsky points out, the alternative--in which Lincoln might have said "something along the lines of wanting Congress to promptly send the 13th Amednment to the states"--is "not the stuff on which Oscar nominations are made."  Good point.

(Zelinsky also references another error: the movie's portrayal of Connecticut congressman as voting against the Thirteenth Amendment.  In fact, Connecticut's representatives voted for it.) 

But if the film committed errors, it also helped correct them--or at least one of them.  According to The Atlantic Wire, a recent immigrant from India, Dr. Ranjan Batra, after seeing the movie, researched and determined that Mississippi never ratified the Thirteenth Amendment.  Last week it did.

SDS

PRENDA - The Sex Selection Anti-Abortion Bill Fails to Pass House of Representatives, But . . . .

As the Washington Post reports, members of the House of Representatives "voted 246 to 168"  on PRENDA, HR 3541, the Prenatal Non-Discrimination Act, that bans sex-selective and race-selective abortions.  While the 246 majority voted for PRENDA, it "failed to pass as House Republicans brought it up under a suspension of normal rules that required it to earn a two-thirds majority vote."

PRENDA defines "‘‘sex-selection abortion’’ as an "abortion undertaken for purposes of eliminating an unborn child of an undesired sex," and ‘‘race-selection abortion’’ is "an abortion performed for purposes of eliminating an unborn child because the child or a parent of the child is of an undesired race."  The bill is similar to one in Arizona that did become law; the few other states that do have statutes focus on sex-selection.

As I've written elsewhere:

The specter of sex-­selection prohibitions in abortion statutes is said to pose a political dilemma for feminists,who can be “torn” between “support for reproductive autonomy” and “distaste for sex-­‐selection practices driven by a gendered and patriarchal society.” It also provokes opposing logical constructions. On one account, if there is right to an abortion for any or no reason, this includes a right to an abortion even for a problematical reason.165 On an opposing account, “[t]he right to not have a child for any reason does not logically encompass the right not to have a child for any specific reason.”  Whatever the logic, however, an interrogation of a woman’s “reason” for having an abortion demonstrates a distrust of women similar to the distrust apparent in other abortion restrictions that treat women have abortions quite differently than ungendered patients providing informed consent for other medical procedures. However, unlike other abortion restrictions such as mandatory ultrasounds or waiting periods, sex-­‐selective prohibitions are not cast as being beneficial to women or assisting decision-­‐ making; rather, they clearly seek to remove the power of a woman’s choice to terminate a pregnancy in service to a larger societal and state interest.

Indeed, PRENDA's findings on sex include:

(subsection L) Sex-selection abortion results in an unnatural sex-ratio imbalance. An unnatural sex- ratio imbalance is undesirable, due to the inability of the numerically predominant sex to find mates. Experts worldwide document that a significant sex-ratio imbalance in which males numerically predominate can be a cause of increased violence and militancy within a society. Likewise, an unnatural sex-ratio imbalance gives rise to the commoditization of humans in the form of human trafficking, and a consequent increase in kidnapping and other violent crime.

PRENDA bases this finding on the experience of nations such as China, mentioning "son preference" but not China's accompanying one-child policy.  For some, the interest in prohibiting sex-selective abortion is a "manufactured controversy."  For others, PRENDA may be part of an election year strategy.

For those teaching a summer course in ConLaw, this could be the basis of an excellent problem.  ConLawProfs might want to also consider the constitutional provisions on which Congress grounds its power, including the Thirteenth Amendment.

RR

Wisconsin Law School Conference: The Constitutionalization of Labor and Employment Law?

Wisconsin has recently been the site of several recent controversies regarding labor law, including academic labor, and the University of Wisconsin Law School Conference, The Constitutionalization of Labor and Employment Law?, on October 28-29, 2011 in Madison is sure to address some of these issues. 

Additionally, the conference organizers note that recent "U.S. Supreme Court cases have contained much legal discussion at the intersection of constitutional law concepts and the law of the workplace – both in the public-sector workplace where constitutional state action exists and in the private-sector workplace where it does not. Recent cases include: Garcetti v. Ceballos, Christian Legal Society v. Martinez, City of Ontario v. Quon, NASA v. Nelson, Engquist v. Oregon Dept. of Agricultural, and Ricci v. DeStefano."

The 5 panels are Equal Protection, 13th Amendment, Workplace Privacy, Freedom of Association and Freedom of Speech.  

More information, including registration information is here.  The "symposium fee is waived for full-time members of academia," pre-registration is required and the deadline is October 18. 

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Juneteenth

June 19th, celebrated as a commemoration of the end of chattel slavery in the United States, is not the date of the Emancipation Proclamation, issued by Lincoln on January 1, 1863, but the date that it was read aloud in Texas more than two years later accompanied by an announcement of the end of the Civil War.   The Thirteenth Amendment would be adopted by the Reconstruction Congress later that year, in December  1865.

Jim Chen, now Dean at University of Louisville Brandeis School of Law, in his article Mayteenth, 89 Minn. L. Rev. 203 (2004), available on ssrn, explained the significance of June 19, 1865:

On that day, a Union regiment led by Major General Gordon Granger landed at Galveston, Texas. The Granger regiment not only reported the two-month-old news that the Civil War had ended with Robert E. Lee's surrender at Appomattox Courthouse on April 9, 1865, but also enforced (nearly two and a half years after the fact) the Emancipation Proclamation of January 1, 1863. . . . Juneteenth is, as it were, Martin Luther King, Jr.'s birthday without the tragedy.

As an epochal event, Juneteenth managed rather remarkably to arrive both too late and too early. The two-month delay in reporting the news of the Confederacy's defeat and the two-year delay in the enforcement of the Emancipation Proclamation would prove to be trivial in comparison with the glacial pace of legal reform after the Civil War. The nominal end of slavery foreshadowed the bitter disappointment of Reconstruction and the strange career of Jim Crow. A full lifetime after the end of Reconstruction, William Faulkner described all too perfectly the grip of slavery's dead hand: “The past is never dead. It's not even past.”  Most of the slaves emancipated in 1865 never enjoyed some of the simplest and most essential civil rights. Meaningful protection of the right to vote without regard to race or color, to name merely one example, would wait more than a century. Exactly 100 years and 48 days elapsed between Juneteenth and the passage of the Voting Rights Act of 1965.

To celebrate Juneteenth, in other words, is to acknowledge unfinished business. Neither Union victory in the Civil War nor Reconstruction came close to discharging America's debt to its black citizens. Indeed, Reconstruction effectively enabled the South to win the Civil War.  Yet Juneteenth remains worth remembering and celebrating. Rail as we might (and should) against the persistence of racism in America, the preservation of the Union and the abolition of slavery define much of what is good and heroic in American history. To borrow a key word from the civil rights jurisprudence of Chief Justice Earl Warren, a negotiated peace with the Confederacy would have been “unthinkable.” At a certain level of abstraction, quibbling over the precise terms of either victory seems downright ungrateful.

Juneteenth acknowledges a fundamental truth: no matter how long it is delayed, and no matter how imperfectly it is implemented, emancipation beats the pants off enslavement. What separates Juneteenth from other commemorations of wartime victory is its sense of irony and its humility. Because of these traits, and not in spite of them, Juneteenth's celebrants understand the crucial point. However awkwardly accomplished, the outlawing of slavery is a monumental achievement worth commemorating as long as the Republic endures.

 

In his article Apology Lite: Truths, Doubts, and Reconciliations in the Senate's Guarded Apology for Slavery, 42 Connecticut Law Review CONNtemplations 1 (2009), available on ssrn, LawProf Kaimipono David Wegner argues that the United States Senate should "formally commemorate Juneteenth" to help show the sincerity of its apology for slavery and further restorative justice goals including reparations.

Among those campaigning for Juneteenth as a national holiday is US Congressperson from Texas Sheila Jackson (pictured above in 2003 via).

RR

 

Labor Day Scholarship Pick

James Gray Pope, Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude," 119 Yale L.J. 1474 (2010).  

Full article available here; abstract:

The Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the Involuntary Servitude Clause. This Article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough discussion of the interpretive issues. Under Pollock, a claimed right should be protected if it is necessary to provide workers with the “power below” and employers the “incentive above” to prevent “a harsh overlordship or unwholesome conditions of work.” Although this is not the only conceivable standard, it does fit well with the text, history, and case law of the Amendment. The absence of any racial element, which might appear dishonest in light of the fact that most of the leading cases involved workers of color, nevertheless corresponds to the Amendment’s original meaning and appears to have important advantages from a doctrinal point of view. The Article discusses the legal and philosophical justifications of various labor rights in relation to the Pollock standard, including the right to quit, the right to change employers, the right to name the wages for which one is willing to work, and the right to strike.

(image: "Native girls packing pineapple into cans," The National Archives via).

RR

Dred Scott & Harriet Scott Plaque next to Taney Statute

Justice Roger Taney, a Supreme Court Justice, lived in Frederick, Maryland and practiced law there.  Thus, it is not surprising that the town of Frederick would have a monument to Taney.  It is also not surprising that not everyone would feel Taney should be honored with a monument; Justice Taney is most most well-known for authoring the Dred Scott decision.

As reported yesterday, the town of Frederick has installed a plaque as a tribute to Dred and Harriet Scott.  As the reports note, this occurred after extensive discussions and planning (the plaque itself bears the year 2008).

RR

Lincoln's Constitution Seminar

Designed for graduate students and junior faculty in history, political science, law and related disciplines, the New York Historical Society (in NYC)  will be hosting the seminar Lincoln’s Constitution on Thursday afternoons from 1:00 to 3:00 p.m, on September 17 and 24 and on October 1, 15, 22, and 29, 2009.
The seminar will be taught by  Akhil Reed Amar (Yale College and Yale Law School) and James Oakes (CUNY Graduate Center), who is the author of The Radical and the Republican: Frederick
Douglass, Abraham Lincoln and the Triumph of Antislavery Politics, as well as The Ruling Race: A History of American Slaveholders.

The deadline to apply is August 30.  More information here.

There will also be an exhibit "Lincoln and New York" beginning October 9.

RR

Involuntary Servitude Theorizing

Both sides of the abortion debate invoke analogies to slavery.   Recently, in the National Review Online, Michael Novak's article "Notre Dame Disgrace" criticizes the university for inviting Barak Obama, arguing that "I doubt very much whether the University of Notre Dame would ever give an honorary degree to a slave owner or a propagandist for slavery."    One of the presentations scheduled for the upcoming conference on the Thirteenth Amendment, previously blogged here, is “Forced Labor, Revisited: The Thirteenth Amendment and Abortion” by Andrew Koppelman, of Northwestern University, School of Law.  In Koppleman's  previously published article, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 NW. U. L. Rev. 480 (1990), he argues:

Abortion prohibitions violate the amendment's guarantee of personal liberty, because forced pregnancy and childbirth, by compelling the woman to serve the fetus, creates “that control by which the personal service of one man sic is disposed of or coerced for another's benefit which is the essence of involuntary servitude.”' Such laws violate the amendment's guarantee of equality, because forcing women to be mothers makes them into a servant caste, a group which, by virtue of a status of birth, is held subject to a special duty to serve others and not themselves.

Outside the abortion context, doctrines and theoretical perspective of slavery and involuntary servitude continue to have valence.  For example, in an extensive essay-review I've authored and just published in Berkeley Journal of Gender, Law and Justice, available on ssrn,  I discuss a recent high profile prosecution on Long Island regarding wage slavery. (The essay springs from a book considering the writer Virginia Woolf's life and work).  

In the context of domestic violence, Joyce McConnell, now Dean of West Virginia University College of Law,  argued the applicability of the Thirteenth Amendment to the situation of domestic violence. 

In her article, Beyond Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 Yale J.L. & Feminism 207 (1992), McConnell opened with a rejection of slavery as metaphor:

When Congress debated the Thirteenth Amendment and its prohibitions against slavery and involuntary servitude, anxious members inquired whether it would alter the traditional relationship of husband and wife.  The concern materialized out of a political context in which those who sought abolition of African American chat-tel slavery and the establishment of women's rights were applying the norm of individual freedom beyond the nar-row scope of landed white men. At that time, the metaphor “women are slaves” had rhetorical currency and suggested that white women shared with African American men and women a similar legal and social status of non-identity and disability.  No matter how rhetorically useful this metaphor may have seemed then or may seem now, it was and remains grossly inaccurate and inherently racist. It obscured the fact that white women were slaveholders or beneficiaries of the slave system.  It failed to recognize that even though there were significant legal, political and social restraints on white women, they did not as a class suffer in the way that African Americans did under slavery. Finally, it ignored the fact that African American women were slaves and that other women were not, no matter what their subordinate legal or socio-economic status. So, the metaphor was and is fundamentally flawed both by its generality and its exclusion.

Id. at 207-8 (footnotes omitted).   Instead, McConnell argued, the term "involuntary servitude" is applicable.  Indeed, she discussed the fear of certain Congressmen that the prohibition of "involuntary servitude" would reshape their domestic lives and homes:

 Senator Howard worried that if the Amendment was to be enacted “a woman would be equal to a man ... [a] wife would be equal to her husband and as free ... before the law.” Representative Cox was concerned that if Congress had the power to regulate “domestic slavery” then perhaps it could exercise this power to “change the relation of ... husband and wife.” To allay his colleagues' fears, Senator Sumner the chief proponent of the Thirteenth Amendment in the Senate, argued that the right to contract and the right to maintain a family were natural rights essential to the concept of freedom. In this he implied that to regard the Thirteenth Amendment as interfering with the traditional legal relationship between husband and wife would be reductio ad absurdum. His narrow interpretation of the Thirteenth Amendment assured its opponents that the Amendment would not in any way alter the family under the law, but rather was to give everyone, regardless of their race, the right to create and maintain a family under the laws then applicable to only whites and freed slaves.  Such a family presumed the traditional authority of the husband over the wife.

Id. at 216 (footnotes omitted).   This is a passage I return to again and again, using it to provoke class discussions. 

In her article, McConnell goes on to mount a compelling argument regarding battered women as subject to involuntary servitude.  Although not explicitly based on the Thirteenth Amendment, Congressional actions addressing domestic violence such as the Violence Against Women Act and immigration remedies for battered women, fit within some of the solutions McConnell proposed seventeen years ago.  Yet McConnell's article still raises fresh perspectives.

RR