Monday, February 15, 2016

Alternative Constitution Day -- Going Forward from Here

Thanks to everyone who contributed to and read the essays in last week's 2016 online symposium for Alternative Constitution Day. As the essays have shown, and as current events remind us, the concerns around creating Alternative Constitution Day (and the space ACD creates for discussion of the social and legal issues important to the goal of a reconstituted United States) are present and continuing in our legal and societal framework. The dialogue started here must continue if it ultimately is to make a difference.

To keep the dialogue going, the organizers of Alternative Constitution Day have created a new blog. This new blog will provide information throughout the year about the ideas and principles Alternative Constitution Day represents and opportunities to plan and participate in ACD events in the future.

If you're interested in continuing and contributing to the dialogue, please visit the brand new Alternative Constitution Day blog.

With thanks again to all of the contributors and readers of this symposium,

Atiba Ellis

February 15, 2016 | Permalink | Comments (0)

Friday, February 12, 2016

Narrative and the Transforming Power of Alternative Constitution Day -- Professor Robin Walker Sterling Contributes to the Alternative Constitution Day Symposium

Narrative and the Transforming Power of Alternative Constitution Day

The power of Alternative Constitution Day lies in its celebration of narrative. Narrative is our most basic cultural currency, our “tool for giving meaning to experience or observation.” The holy books of the three most prominent monotheistic religions are written in parables. We spend hours binge-watching television shows. We spend millions of dollars to sit in theaters to watch plays and motives.

But as the saying goes, “until the lion learns how to write, every story will glorify the hunter.” Narratives act as cultural filters. Every dominant narrative has buried within it innumerable subsumed voices. This dynamic plays out in court opinion after opinion: for every set of facts included in the majority opinion, there is often a set of facts in the dissent so different it seems to come from a different case. Connick v. Thompson offers one telling example of this.

The law’s narrative choices can have enormous consequences. As I argued in the Maryland Law Review, the narrative choices in the Warren Court’s juvenile justice jurisprudence have allowed the profound racial disparities that dog our country’s juvenile justice system to persist. In In re Gault, the case that extended the right to counsel to juvenile delinquency proceedings, the Court eloquently detailed the narrative of the “Child Savers,” who championed juvenile courts as centers of social rehabilitation doled out by a kindly, avuncular judge.

That was the hunter’s story.

The lion’s story, the brutal narrative of system-involved children of color, was lost. The treatment black children received was devoid of the nuanced, individualized rehabilitation seemingly reserved for white children. In other words, as I discuss in my article, “black children were black before they were children, and therefore exempt from the presumption that they were amenable to rehabilitation.” Elevating the Child Savers’ narrative, the Court located children’s right to counsel in Fourteenth Amendment Due Process, with its adaptable, discretion-based process that benefitted white children, rather than the relatively more hard-shelled criminal procedural protections of the Sixth Amendment. As a result of this narrative choice, the Court enshrined the experience that was, instead of reaching for the juvenile justice system that could be. Subsequent cases would compound this misstep, and ultimately, insulate juvenile court from the Civil Rights Movement.

So let Alternative Constitution Day be about celebrating the subsumed narratives. Let it give us reason to discuss the narratives of the protesters – not rioters – after Freddy Gray’s death and the protection the First Amendment failed to afford them; of the criminally accused whose faces are reported in news stories using mug shots instead of yearbook pictures and the fitfulness of the presumption of innocence; of the hyper- incarcerated and their lived experience of the connection that the Thirteenth Amendment draws between criminal conviction and sanctioned slavery. Let us hear all the stories.

In solidarity,

Robin Walker Sterling

Robin Walker Sterling is an Assistant Professor at the University of Denver Sturm School of Law, where she co-teaches the Criminal Defense Clinic

February 12, 2016 | Permalink | Comments (0)

We Are Still Only Partially Constituted -- Professor Osamudia James Contributes to the Alternative Constitution Day Symposium

We Are Still Only Partially Constituted

The Fourteenth Amendment to the constitution was the basis on which the Court in Brown v. Board of Education declared that “separate but equal” in public accommodations was unconstitutional. Nevertheless, after hitting a high water mark in the early 1990s, American public schools are, by some measures, more segregated today than they were in 1968. Of the four elementary schools in my own community, three of the schools have almost no black children enrolled, while the fourth school appears to have them all. And with the arrival of February, many children across the country are learning about people of color in their history classes for the first time all school year (with the exception, of course, of a cursory lesson on Martin Luther King, Jr. back in January).

It is with ambivalence, then, that I reflect on alternative constitution day. It is true that the government our founders constituted in their first document was far from the “more perfect union” to which American presidents are fond of referring today. The original constitution gave power primarily to white, land-owning males, and made structural space for those males to own enslaved Africans and their descendants in the United States. Although contemplated as having a claim to the franchise, women were ultimately excluded from the document’s guarantees, a marginalization that, like the exclusion of the less wealthy and non-Whites, continues to shape our society today.

Given these glaring omissions, a celebration of the “alternative constitution,” as defined by the adoption during Reconstruction of the Thirteenth, Fourteenth, and Fifteenth Amendments, seems justified. Those amendments, however, have not preempted the racial subordination that still plagues our country. The Fourteenth Amendment, even in concert with Brown v. Board, has not delivered integrated schools. The voting guarantee of the Fifteenth Amendment has not created governing bodies that are responsive to the structural conditions that facilitate residential and educational segregation in our communities. The Thirteenth Amendment’s insistence that Blacks be given access to our notions of humanity has not ensured that my daughter will see herself in the lessons her public school teaches about who does, and does not, count in America.

These failures are about more than limited judicial doctrine or gutted legislative mandates; they are also about the will of the people subject to the reconstruction amendments. Belonging and inclusion—commitments to which the alternative constitution nods—might be conveyed through language in a document, but is only made real when individuals internalize and act upon it.   The Thirteenth Amendment may have abolished slavery, but racial subordination continues through the segregation and isolation of people of color, facilitated, in part, by the failure of individuals to examine their implicit assumptions that “good” schools and “safe” neighborhoods are necessarily devoid of non-Whites. The Fourteenth Amendment may insist on equal citizenship, but by virtue of her school’s demographics and the silence of parents on the topic, my daughter is nevertheless learning that some children are more equal than others. The Fifteenth Amendment may assert that we all have the right to participate in our democracy, but children across the country nevertheless learn that people of color are still not fully contemplated as part of the demos.

My hope, then, is that celebrations of the alternative constitution go beyond praise of the Amendments that merely addressed, on paper, the document’s original defects. Indeed, our fête of the day in 1870 where the last Reconstruction Amendment was passed should push us into conversations about how our commitments to the spirit of those Amendments have waned, and what each of us is responsible for doing in order to more fully realize their promise.

Osamudia James, Professor, University of Miami School of Law

February 12, 2016 | Permalink | Comments (0)

Thursday, February 11, 2016

The Constitution as Racial Fetish Object -- Professor Neil Gotanda Contributes to the Alternative Constitution Day Symposium

Special thanks to Atiba Ellis and Nancy Leong for their invitation. My note is inspired by my favorite law review article, Anthony Farley’s The Black Body as Fetish Object. I use fetish object as a reification of racial relations. My focus is upon the most important of racial relations – racial violence against Black bodies. From the wealth of genealogical materials, my first exemplary narrative is the Colfax Massacre and the Supreme Court’s decision in U.S. v. Cruikshank. Cruikshank is the central marker in the modern era of racial violence and colorblind ideology.

On Easter Sunday, 1873, over one hundred Whites with rifles and a cannon attacked a large group of armed freedmen who had occupied the Grant Parish courthouse to defend a Republican appointed sheriff and judge. The white Democrats attacked, set the Courthouse afire, and killed many as they tried to escape the flames and surrender. Others were executed after being taken prisoner. Over one hundred Blacks were killed.

A federal prosecution was blocked by the Supreme Court. While there are doctrinal twists to Cruikshank, I believe the decision establishes the Supreme Court as the ultimate defender of public and private violence against Black armed resistance. Using constitutional doctrines summarized by Starger, Davis and Francois as the Confederate Narrative, Cruikshank establishes a foundational principle of modern race law: armed Black resistance will be met with overwhelming military force.

My second exemplary narrative is Bobby Hutton’s death in 1968. Following an armed confrontation with Oakland police, Hutton, Eldridge Cleaver and other Black Panthers were surrounded in an Oakland house. After tear gassing, Hutton stripped to his underwear to show he was unarmed and attempted to surrender. Hutton was killed by police.

The third exemplary narrative is the occupation of the Malheur National Wildlife Refuge by armed militia. The militia, while composed entirely of Whites, did not argue directly for white supremacy over Blacks. They articulated an aggressive variation of the Confederate Narrative: states’ rights, conquest and disposition of Indian lands, and the rights of armed resistance. Federal authorities adopted tactics similar to Ruby Ridge and Waco but with greater patience for political theater. State violence was nuanced and limited.

My argument about Malheur is its peculiar constitutional formulation.   Malheur is exemplary not simply because it illustrates discrimination in administration of colorblind justice. The constitutional lesson is the non-use of disciplinary violence. The overwhelming military force exercised in Ferguson is the norm for Black resistance which carries even a hint of rebellion. In Malheur, the ideological affirmations are multiple. i) Colorblind constitutional claims to the Confederate Narrative are to be tolerated, including armed political theater. ii) The absence of armed evangelical resistance frees the Court to expand its use of religious freedom. iii) Any Black resistance outside of the disciplinary guidelines established by the Supreme Court will be treated as racial rebellion. Public and private violence is freely available against such rebellion.

When the Supreme Court has arrogated to itself the power to fetishize racial violence onto its canonical text, I can only offer this cautionary note. (PS - I am inspired by Beyoncé’s subversion of the Super Bowl.)

Neil Gotanda, Professor of Law, Western State College of Law 

February 11, 2016 | Permalink | Comments (0)

Wednesday, February 10, 2016

Race, Reciprocity, and the Rule of Law -- Professor Paul Gowder Contributes to the Alternative Constitution Day Symposium

I'm a rule of law specialist. I have a book on the subject that will be on shelves in a few days, the Rule of Law in the Real World. One of the most important things my book concludes is that the rule of law is about the reciprocal and collective self-defense of the people against the power of those who wield the state's monopoly over violence: we can only force them to do so within the law if we can trust one another to collectively stand in the defense of any of us who are subject to official abuses.

For Alternative Constitution Day, we should reflect on the way in which people of color have long been excluded from that collective bargain. Except for the brief shining moment when the Radical Republicans stood in defense of the freed slaves, public officials and the white citizenry at large were allowed for a century after the Civil War to run amok with lynchings and other violence against citizens of color, in defiance of the guarantee of full citizenship expressed in the first sentence of the Fourteenth Amendment and in defiance of the promise of the refounding.

While today we've largely put a stop to lynchings (Yet have we? What else can we call the killing of Trayvon Martin, whose 21st birthday would have been on Friday?), the Black Lives Matter movement should remind us that we have not yet put a stop to arbitrary official violence against black bodies.

People of color know this at bone-level. But how to bring it home to the whites who dominate America's political, legal, and economic systems? I think rule of law ideas can help. By allowing the police to carry out unchecked violence against people of color, the white majority undermines collective trust in the shared American commitment to keep power under control; those who leap to the uncritical defense of the police whenever another black person is killed condition themselves to tolerate the abuse of authority more generally.

This means that ignoring official violence against citizens of color has the potential to bite back at the privileged too. I think we're already seeing this, in the growth of police abuse against the population in general. Think of recent scandals about the abuse of civil asset forfeitures, about police militarization, about the Chicago Police Department's astonishing secret interrogation site—an abuse that primarily fell on black citizens, but whites could get put there too—and about how the New York Police Department felt free to throw a tantrum and stage a work slowdown to retaliate against the Mayor's having the temerity to suggest that they ought to stop ignoring the law.

The only way the American people can get official misconduct under control is to stand together and resist it wherever it appears. And that means that black lives have to matter, and not just to black folks.

Paul Gowder, Associate Professor of Law, University of Iowa College of Law

February 10, 2016 | Permalink | Comments (0)

Tuesday, February 9, 2016

Personhood and the U.S. Constitution -- Professor Saru Matambanadzo Contributes to the Alternative Constitution Day Symposium

Personhood and the U.S. Constitution

The idea of personhood has been and continues to be a contested concept in American law. There are modern struggles to expand personhood beyond its current boundaries – perhaps extending it to animals, trees, robots, or fetuses. The substance of personhood also continues to change as increased recognition of corporate personhood has restructured how we think about religious belief. Moreover, the recognition of the personhood of gay and lesbian individuals has led to a constitutional order in which states cannot exclude same-sex couples from marriage.

In historical context, legal personhood held less meaning for African Americans before the passage of the Thirteenth and Fourteenth Amendment than it does today. At its inception, the U.S. Constitution permitted the states to implement their own limitations on personhood as it applied to women, indigenous persons, and people of color. In most states, African Americans, whether enslaved or free, were limited in their access to the privileges and rights of legal personhood. Free people of African descent were denied the franchise, could not testify against white persons in court, and often had to use a guardian to bring a suit in contract or tort.

Courts endowed individuals bound by slavery with a liminal sort of legal personhood, defined by a constellation of concepts – person, personal property, real property - that limited access to humanity. This constellation of concepts defined and redefined the boundaries of personhood for enslaved persons and to affirm the rights and entitlements of slave owners. Enslaved persons were persons subject to some criminal laws and required to fulfill obligations to their masters, but could not avail themselves of most legal rights and protections. And this status as person and property entailed that enslaved persons were subject to many legal disabilities. Enslaved persons had no legal recognition as actors before law but, of course, could be acted upon. They had no recognized common law rights to make a contract, to own or devise property, or to sue or be sued in court. They could be beaten or raped by those that own them without legal recourse. And if enslaved persons were abused by those that did not own them, only their masters could recover for property damage to their persons.

This reality underwent important change after the Civil War. The passage of Thirteenth Amendment and the Fourteenth Amendment expanded the scope of legal personhood for African Americans and gave them access, at least in theory, to legal rights that many other persons long enjoyed. By eliminating chattel slavery and extending citizenship and equal protection to African Americans, as historians have argued, the United States undertook a second revolutionary project. This revolutionary project, while imperfectly executed during Reconstruction, took important steps in limiting how those recognized as legal persons could be treated as a matter of law. This revolution, however, was partial, uncertain, and incomplete. And it is still incomplete today, as fast food workers (disproportionately black and brown) organize against low paid wage slavery in the fight for $15, as African Americans struggle to assert that Black Lives Matter, and as women of color struggle for a legal order that recognizes both the right to have children and to choose when not to have children – the essence of reproductive justice.

The juxtaposition of historical and contemporary debates about legal personhood and access to constitutional protections as a person reveals the dialectical nature of personhood in law. Legal personhood is important as a starting point for recognition, and yet not adequate as an end point. Legal personhood functions only as a threshold. It answers a question – the question of who counts as a person before the law. However, that is only the starting point of analysis. The recognition that one gains as a legal person entails no inevitable answers. It contains only the potential possibility of relief and recognition – it does not guarantee it.

With solidarity in the struggle,

Saru M. Matambanadzo, Associate Professor of Law, Tulane University School of Law.

February 9, 2016 | Permalink | Comments (0)

Monday, February 8, 2016

Rethinking "We" -- Professor Darrell Jackson Contributes to the Alternative Constitution Day Symposium

Rethinking “We”

“We the People…” These are the first three words of the Constitution for the United States of America. No three words have held more power as an implied promise of democracy and, simultaneously, proven furthest from the truth. In saying “We the People,” and the words that followed, the Founding Fathers declared a government that spoke for every man, woman, and child who resided in America. However, the Founders did not consult or consider most of the voices in America because the Founding Fathers defined most bodies as inhuman or incapable. “Most” in this sense signifies an anathema to the American spirit we profess today – the fact is that the majority of bodies in America were voiceless and powerless, and the Founders enabled this in their constitutional design.

Philosophers continue to consider the ramifications and meaning of a person being considered “a problem.” As the Founding Fathers made clear, the benefits of America were never meant for the women and people of color whose toil would build the nation. “They” were simply resources. Philosophers captured the nature of the problem through the term “unwelcome beings.” To be specific, it is beings that are unwelcomed, not the bodies. Beings think, feel, and have rights. Bodies were, and are, a necessity, a resource - for slavery, mass incarceration, and other systems of domination that provide capital for the modern “few.”

An uncritical celebration of America’s Constitution leaves these facts outside of various institutional Constitution Day festivities. The uncritical celebration prefers that the festivities’ decorations remain clean and untarnished. Alternative Constitution Day does exactly the opposite.

By highlighting the Reconstruction Amendments, Alternative Constitution Day not only envisions what could have been, it envisions what should be. When we put on blinders or shroud ourselves in some illusionary flag of perfection, we fail our communities, our country, and ourselves. Moreover, we also fail the plethora of countries looking to America for guidance and direction. We signal to others that as long as you call yourself ideal or perfect, you are. It can be no surprise, then, when our statements to other countries and cultures fall on deaf ears. But when we as a society are prepared to recognize our mistakes and our faults, we permit ourselves to grow stronger and wiser.

As we exit football season and stand at the cusp of March Madness, fans take for granted that their teams will continually critically evaluate their successes and errors in the past game and the past season. It is the way their team will improve and win championships. Alternative Constitution Day does what traditional Constitution Day does not by unapologetically reviewing the bad plays and bad choices, as well as the touchdowns and slam-dunks. Only by continuing to review what went wrong, as well as what went right, can we win – a country where “We the People” resonates for all the people, a true democracy.

Darrell D. Jackson, JD, PhD, Associate Professor of Law; Adjunct Professor, African American & Diaspora Studies; University of Wyoming

February 8, 2016 | Permalink | Comments (0)

The Beauty of Constitution Day -- Professor Paul Finkelman Contributes to the Alternative Constitution Day Symposium

The Beauty of Constitution Day

Constitution Day mandates that virtually every college and university in the United States create programs to discuss and explore the Constitution. The topic is usually left up to the speaker and the institution. I have probably given 25 or 30 such talks. The majority have been on slavery, race, and the Constitution. Often I talk about how slavery was so deeply embedded into the Constitution that it took four years of civil war, some 650,000 deaths, and three Constitutional Amendments to end the system. And, as readers of this blog so fully understand, we are still living with the consequences and legacies of slavery, it abolition, and its aftermath. I have also talked about Frederick Douglass’s constitutional thought, freedom of religion, freedom of speech, voting rights, the fugitive slave laws, the Civil Rights Acts of 1866, 1875, and 1964, and how the original meaning of the Second Amendment had nothing to do with the private ownership of guns.

I have given talks in the Deep South on how slavery – and not states’ rights – was the cause of secession and the Civil War. In addition to students, the audience often includes members of the general public, who get an unexpected education in constitutional law and American history. I sometimes hand out to the audience of the full text of the South Carolina or Texas “Declaration of the Causes of Secession” or Alexander Stephens’s “Cornerstone Speech,” so they can see how slavery and assertions of racism were the true “cornerstones” of the Confederacy. These have been some the best teaching moments of my career

Last year I was at Morehead State University for Constitution Day, while that town’s most famous resident – Kim Davis – was sitting in jail for her contemptuous disregard for the Constitution, the Supreme Court, and the local U.S. District Court. In my scheduled lecture, I was able to tell my Kentucky audiences about slavery and the Constitution. While not a Confederate State, Kentucky was a slave state until the ratification of the Thirteenth Amendment. But given the issue of the moment, I spoke in 3 or 4 large undergraduate classes about the Constitution, the rule of law, marriage equality, and what religious freedom really means. I was able to explain to the students who were mostly from Eastern Kentucky, why liberty is truly “indivisible,” why civil rights have to be the same for all of us, and why a county clerk was under a legal and moral obligation to implement the rule of law for all people. Some of the students were uncomfortable having to think hard about these issues – but a large number stopped to personally thank me for these insights. Talking about Kim Davis in Eastern Kentucky -- it truly doesn’t get any better than this.

So, I guess I love Constitution Day. It provides venues for scholars to bring significant information to college students and the general public about liberty, law, and our shared history. It is a vehicle to discuss slavery, abolition, civil rights, civil liberties, and why we still need to create a regime of liberty and justice for all.

Do we need more of this? Sure. It would be great to have a Constitutional Liberty Day in February to compliment Constitution Day. But we don’t need an “alternative” Constitution day, we just need another one. But, until we get that, let’s make sure we make the most of September 17. Volunteer for the committee in your institution to make it a day about rights and liberty, about constitutional history, about civil rights. Seize the Day!

Paul Finkelman is currently the Ariel F. Sallows Visiting Professor of Human Rights Law at the University of Saskatchewan, and a Senior Fellow in the Program on Democracy, Citizenship, and Constitutionalism at the University of Pennsylvania. His most recent book is Slavery and the Founders: Race and Liberty in the Age of Jefferson (3rd ed., Routledge).

February 8, 2016 | Permalink | Comments (0)

Sunday, February 7, 2016

Speaking of Equality -- Professor Leong Contributes to the Alternative Constitution Day Symposium

Speaking of Equality

Alternative Constitution Day provides an opportunity to reflect on the defects in the Constitution of 1789 as well as in the Bill of Rights ratified in 1791. Of course there is much to admire in our founding documents. But we cannot ignore the reality that the Constitution was drafted by wealthy white property-owning men who owned and in some instances raped slaves, and who would have thought laughable the notion that many of the contributors to this symposium could own property, vote, and teach in law schools. It should be surprising to no one that these men produced a document whose flaws, more than two centuries later, we continue to work to cure. More surprising is the notion that many people celebrate Constitution Day -- the federally-funded holiday in September -- so uncritically, or that so many are so willing to gloss over the defects in our founding document.

The thoughtful essays in this symposium capture many of the reasons that we need Alternative Constitution Day. Mine will raise one of the more prosaic: that a legal culture that uncritically reveres our founders sets itself up for doctrinal mistakes.

Consider, for example, the relationship between the First and the Fourteenth Amendments. The First Amendment was ratified in 1791; the Fourteenth not until 1868, as one of the Reconstruction-era civil rights amendments. Under ordinary principles of interpretation, the First Amendment should be read in tandem with the Fourteenth Amendment, and to the extent the two conflict, the Fourteenth -- ratified three-quarters of a century later -- should understood to correct the First.

Yet this is not the manner in which the Court has interpreted either the First or the Fourteenth Amendment. The equality interests at stake in cases involving cross-burning and other forms of hate speech, such as RAV v. St. Paul and Virginia v. Black, have scarcely received acknowledgement from the Court. Indeed, the majority opinion in R.A.V. and the opinion of the Court in Black do not even mention the notion of equality. The same is true of cases that implicate both speech and women's right to reproductive freedom. In McCullen v. Coakley, for instance, the Court by a vote of 9-0 invalidated buffer zones around abortion clinics -- an exceedingly minimal regulation of speech. Although such speech undoubtedly inhibits women's equality by inhibiting access to reproductive health care, the Court made no mention of the effect of speech in perpetuating inequality. The Court's jurisprudence therefore offers no opportunity to tie these rights to the equality guarantee of the Fourteenth Amendment. Without ever explicitly saying so, the Court has interpreted the First Amendment as though it is unmodified by the Fourteenth.

Most troubling is the hysterical reaction to even the most modest proposed restriction on speech as an "assault on our civil liberties." Commentators have recognized the Roberts Court as perhaps the most "pro-First Amendment" in history, yet free speech absolutists appear to believe that the very foundations of the First Amendment are perpetually endangered.

This is not to say that the Court should uphold bans on cross-burning or ordinances prescribing buffer zones. Rather, it is to say that in a world that took the Reconstruction-era amendments and their equality guarantees seriously, discussion of speech regulation would not be met with hysterical outcry or dire predictions about imminent fascism. We would recognize the value of expression not as an absolute one, but rather as one to be weighed against other interests such as equality, liberty, and dignity. And we would recognize the project of defining our various freedoms as an ongoing attempt to improve the laws that govern our society, just as the Reconstruction-era amendments improved upon the original Bill of Rights.

Nancy Leong, Associate Professor of Law, University of Denver Sturm College of Law

February 7, 2016 | Permalink | Comments (0)

Saturday, February 6, 2016

The Women of Color-Blind Constitution: Professor Teri A. McMurtry-Chubb Contributes to the Alternative Constitution Day Symposium

The Women of Color-Blind Constitution

The phrase “history repeats itself” is a popular but false saying. History does not so much engage in repetition in spite of its unlearned mistakes as it reimagines itself by spinning them as well-intended triumphs. So it is during each election season. In 2008 when Hillary Rodham Clinton and Barack Hussein Obama faced off for the democratic presidential nomination, they were the physical manifestations of equal franchise. Each was the stumping, walking “type” of the 19th and 15th Amendments, respectively.  Senator Obama became the rhetoric of a color-blind Constitution in the form of a Black man, Clinton the rhetoric of a gender-blind Constitution in the body of a White woman.  Just as in 1870 and 1920 when the 15th and 19th Amendments were passed, in 2016 women of color are not in the politicians’ physical bodies or imaginations.

Gendered opposition to the 15th Amendment sought to elevate White womanhood by underscoring perceived intellectual deficiencies among Black people that rendered them unqualified to vote.  Many White suffragettes believed that White women were better prepared to vote than all Black people, male or female. Securing the vote for Black men demanded women of color choose between loyalty to race or gender, thus fracturing body and psyche where both were inextricably united. Hillary Clinton’s “It’s 3 a.m.” campaign advertisement echoed 19th Century claims of White female supremacy with a twist; White women were now the favored protectors of society, especially its children, all of whom needed protecting from Black men. Orlando Patterson wrote in The Red Phone in Black and White about watching the Clinton ad: “I couldn’t help but think of D.W. Griffith’s ‘Birth of A Nation,’ the racist movie epic that helped revive the Ku Klux Klan, with its portrayal of black men lurking in the bushes around white society. The danger implicit in the phone ad – as I see it – is that the person answering the phone might be a black man [Barack Obama], someone who could not be trusted to protect us from this threat.” In 2008 as in 1870, women of color chose race as a defense against racism. Like those women of color asked to march behind male allies and segregated from white suffragettes in the 1913 suffrage parade, we refused segregation and chose to march to the beat of President Obama’s drum even as its heartbeat fell out of synchronicity with our own.

Now in 2016, Hillary Clinton asks women of color to choose her as our color-blind representative female Presidential candidate, while remaining deaf to a drumbeat compelling her to dance with intersectionality.  The U.S. prides itself on “firsts” and reimagines them as ending our enduring inequities. In 2009, we inaugurated our first Black President and promptly declared our Nation “post-racial.” We would declare sexism, misogyny, and patriarchy defeated if we elected our first female president.  However doing so would perpetuate the women of color-blind Constitution where we are banished to the gap between the 15th and 19th Amendments, the shadowland between race and gender.

Teri A. McMurtry-Chubb, Mercer University Walter F. George School of Law

February 6, 2016 | Permalink | Comments (0)

Friday, February 5, 2016

Jacques Lacan, Desire, and Alternative Constitution Day -- Professor Nick J. Sciullo Contributes to the Alternative Constitution Day Symposium

Jacques Lacan, Desire, and Alternative Constitution Day 

I want to begin by expressing my profound gratitude for being able to participate in this online symposium, and that I appreciate and encourage continued critique of Constitution Day and the United States Constitution for its inability to adequately protect the rights of marginalized peoples, in turn failing to protect even those that on-face should benefit from its protection from the pernicious effects of a decidedly un-“perfect Union.” 

What I am interested in is the desire for rights, and the way these desires manifest psychoanalytically.  A desire for rights is nurtured by a refusal to submit to the Constitution’s imperfect protections, and supported by a desire for that which the Constitution does not.  

There are two traditional ways to think about Jacques Lacan’s understanding of desire.  One is that desire is the urge for the Other’s recognition, and the other is the urge or interest in what the Other lacks.  So, for example, one might desire a senior partner or romantic partner’s praise and admiration.  Or, using the second understanding, one might desire advocating for one’s own rights because the Other lacks them.  This sort of rights rivalry may explain the troubles with putting intersectional theory into practice.  Indeed, as many of us familiar with social organizing will attest, it’s difficult to build broad-based coalitions in pursuit of any number of goals.  I contend that Alternative Constitution Day meaningfully positions the second understanding of desire against the first, open up increased possibility for political participation, subjective worth, and critical engagement. 

Alternative Constitution Day is necessary because it represents a reckoning with the Other’s lack, rather than a desire for the Other’s recognition.  That the Other’s lack is our desire should not be seen as a move of consilience, but instead as a radical transformation in rights advocacy.  In order to make the Constitution matter, not as some crumbling piece of parchment, something with hollow promises, signed by well-to-do white men, people must recognize its flaws and unfulfilled promises. 

Alternative Constitution day seeks the humanity the Constitution lacks, and it is in that fissure that the possibility for rights, legal protections, and politics resides.  Rather than desire the Constitution’s recognition, and here Gerald Rosenberg seems to have made an unrecognized psychoanalytic reading of the Constitution when he critiqued the Civil Rights Movement’s hope, marginalized populations should change the framing of their efforts to aggressively pursue the very thing the Other, and here I am indebted to Paolo Freire, lacks.  This change in frame encourages an assertive political demand rather than an implicit acquiescence. 

In order to gain the Other’s recognition, we should desire it less, and desire the Other’s lack more. 

Nick J. Sciullo, J.D., Ph.D., Assistant Professor of Communication and Rhetorical Studies, Affiliate Faculty, Gender and Women’s Studies Program, Illinois College

February 5, 2016 | Permalink | Comments (0)

Thursday, February 4, 2016

Social Rights and the U.S. Constitution -- Professor Craig L. Jackson contributes to the Alternative Constitution Day Symposium


The founding culture the Nation, produced an unrepentant civil and political rights governing document, United States Constitution.  By design it is not a document which serves human social needs. This is significant considering that most of the rest of the world has some version of social rights embodied in either their constitutive documents, or  treaty obligations.  The International Covenant on Social, Economic and Cultural Rights perhaps lays at least one foundation for this conclusion as a majority of nation-states have ratified the document.  The United States, a signatory, has not. 

A glance at the Convention reveals why to those familiar with American social culture.  Where most of the world guarantees an adequate standard of living, health care and education, the United States Constitution protects due process. This is interpreted by a Supreme Court which checks the excesses of law makers against the Justices’ collective version of fairness which it defines as “implicit in a system of ordered liberty” or simply the prevailing constitutional definition of fairness at any given time. 

However, this is no naïve assessment of the state of constitutional affairs in the world today.  Most of the world does a miserable job of fulfilling its treaty obligations under the Covenant—including the Western democracies to which the United States is most often compared.  A more precise comparison of the effectiveness of western social democracy is impossible in a short article.  However, it is still possible to argue that a constitutional system without a social charter cannot come close to such guarantees, relying instead on the weak tools of civil liberties to complete the human rights circle.  The one country best equipped to make real these social guarantees declines to do so.

Under our civil and political rights document there is no right to education within the concept of due process according to the Supreme Court.  Similarly a right to food, or at least access to food, housing and other basic necessities was also disclaimed as a civil or political right under our system.  The brevity of the US Constitution does not explain the omission of social rights.  And though Justice Oliver Wendell Holmes’ argument in his dissent in Lochner v. New York that the Constitution does not lock in any particular economic or social policy, all the Court did when it discarded Lochner principles during the New Deal was to confirm that the Constitution does not restrict the latitude of legislatures, including Congress, to pass laws guaranteeing social rights..  Congress may have the discretion to pass social laws.  But it also has the discretion not to. 

Constitutional guarantees to some degree take away legislative discretion.  Treaty obligations, to the extent they are self-executing and incorporated into the body politic of a ratifying nation can do the same.  Of course judicial review depends on Justices’ interpretation of either the Constitution, or a treaty.  However a system of enumerated social rights, even if susceptible to Court interpretation, is better than none at all. 

In effect, our constitution is an incomplete document

Craig L. Jackson, Professor of Law, Thurgood Marshall School of Law, Texas Southern University, Houston, Texas

February 4, 2016 | Permalink | Comments (0)

Wednesday, February 3, 2016

"Why Alternative Constitution Day": Professors Starger, Davis, and Francois contribute to the Alternative Constitution Day Online Symposium

Why Alternative Constitution Day

Thanks to Professor Ellis and the Race and Law Prof Blog for hosting this symposium. Although the original “Constitution Day Proposal” appeared on my [Colin Starger's] blog, the proposal was actually co-written by Professors Peggy Cooper Davis, Aderson Francois, and myself. The basic idea emerged from the process of co-authoring a paper entitled “Beyond the Confederate Narrative.”

In our paper, we argue that contemporary civil rights jurisprudence remains haunted by a Confederate “oppression narrative” that interprets the Constitution in a manner that too easily defeats claims of federally guaranteed human rights. We oppose this “States’ rights” mode of interpreting the Constitution because we believe it misunderstands the revolutionary nature of the change to our constitutional order wrought by the Civil War and resulting Reconstruction Amendments. Alternative Constitution Day is a way to correct this misunderstanding and to celebrate what we see as the “true birth” of our modern commitment to human dignity. We also hope it might help spark further conversation.

So what is the Confederate narrative of the Constitution? It is a story grounded in the assumption that liberty is best protected by limiting federal power and by protecting the power and independence of States. It is also a story in which the States' reunion after the Civil War was a modest reform by which state-sanctioned slavery was ended, but States’ rights were virtually unaffected. It is the story animating the phrase “equal sovereignty.”

While the presumption underlying the Confederate narrative has innocent sources – the threat of oppressive distant rule loomed large at a time when interstate communication and travel were slow and arduous – the story has justified more than an abstract belief in the value of individual liberty and decentralized power. This view of the Constitution protected slave power, undermined the Civil War Amendments, and rationalized Jim Crow subordination. In more modern times, the narrative has defeated claims that the Constitution protects rights such as that to vote, to receive an education, or to have access to public accommodation. The same old story stands behind resistance to recognizing the right of same-sex couples to marry.

Fortunately, the Confederate narrative does not stand unopposed. There is another tradition of constitutional interpretation we call the People’s narrative. The People's narrative is one in which the nation rejected both slavery and its assault on human dignity and altered its slavery-tolerating Constitution to give the Federal government power to protect the People’s rights. This more optimistic story involves guarantees of national citizenship and national protection of citizens' rights. This is the narrative animating the Reconstruction Amendments.

Of course, we recognize that the passage of the Reconstruction Amendments did not immediately and automatically grant dignity to all. Thus, women had to wait until 1920 before enjoying the constitutional right to suffrage. The right to marriage equality is less than a year old. However, even though race- and sex-based oppression continues to this very day – as do other forms of oppression – our contemporary struggles for justice now have a profound constitutional grounding. Nothing expresses that grounding better than the Reconstruction Amendments – the last of which was ratified on February 3, 1870. That is what we celebrate today.

Colin Starger, Associate Professsor of Law, University of Baltimore School of Law

Peggy Cooper Davis, John S.R. Shad Professor of Lawering and Ethics, New York University School of Law

Aderson Francois, Professor of Law, Howard University School of Law

February 3, 2016 | Permalink | Comments (0)