Atiba R. Ellis

  • September 19, 2014
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law, @atibaellis. This post is part of our 2014 Constitution Day symposium.

    On September 17, 1787, the framers signed the U.S. Constitution. The document they approved 227 years ago is a work of genius as it provided a democratic republic that has endured economic turmoil, mass insurrection, and disasters of various sorts -- forces that have toppled other democracies.  The U.S. Constitution, the oldest enduring written constitution in the world today, has endured and preserved democracy based upon rule of law.

    Although one might point to the advantages and disadvantages of federalism, the dynamics of enumerated powers, or the political compromises that undergird separation of powers as powerful tactics the Constitution deploys, it is not in any of these mechanisms where the genius of the Constitution lies. Its true genius is its mechanism to allow we the people to reinvent our democracy as our times and ethics demand. It is this power of reinvention that has allowed our constitution to endure and matter to the world. 

    This power of democratic transition is best illustrated in the way our Constitution has been reinvented, over time, from a document that enshrined inequality to one that strives for equality. The Constitution of 1787 reflected and implemented a social theory we would not recognize or sanction today. The Constitution endorsed states’ rights (though this name would not be invented until a century later to protect slavery) and left it to the states to structure the social relations of the nation. Thus, despite a Bill of Rights that protected the rights of citizens, the Constitution allowed the chattel slavery of Africans to endure in the United States when it was being abolished in other parts of the world. The Constitution allowed women to be treated as property. Despite our hymns to constitutional genius, the lived experience of the eighteenth and nineteenth centuries was rooted in inequality.

    To focus merely on the genius of the original document (and as a consequence, elevate those times and those founders) is to fixate on an originalism that suffered subordination and endorsed a hierarchy. And, as our experience with the Civil War illustrates, the country came within a hair’s breath of being dismantled by faction and racism due to an unwillingness to recreate the United States.

    Yet our Constitution endures because it has embedded within it mechanisms by which our evolving notions of equality and justice may receive constitutional protection from the tyranny of caste and status. Though volumes have been written on this topic, it is worth remembering in our celebration of the Constitution that the amendment process and the wisdom of legislators and judges who sought to make manifest the idea of equality helped to preserve the Union at its most imperiled points. One needs only recount the work of Reconstruction, the long march from segregation to Civil Rights, the movement towards women’s equality, and our modern day same-sex marriage cases to see how the long arc of equality has progressed. And all of these changes have been enabled through an American constitutionalism that, in the words of Harper v. Virginia, is not shackled to the political theory of a particular era.

  • August 21, 2014
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law, (@atibaellis)

    In a previous post, I discussed the triumph of the Civil Rights Act of 1964. Its passage sounded the death knell of legalized white supremacy and promised an era of equal opportunity.  With the shooting of Michael Brown and the subsequent civil unrest and siege policing in Ferguson, Mo., we must recognize another reoccurrence reminiscent of fifty years ago -- protest and in response to enduring racial subjugation. 

    The Ferguson situation is about the unjustified death of a Black youth (and the fact that this happens all too often in America). This happened in the context of the reality of structural inequality in America that civil rights policy has failed to address. As I argued in that earlier post, formal equality does not go far enough to remedy the enduring legacies of white supremacy, legacies that keep repeating themselves in police violence, political underrepresentation, and minority economic stagnation. It fosters a de facto second-class society for people of color without the economic wherewithal to navigate the system. 

    This structural reality exists and replicates notwithstanding the good intentions of the law or of people who rely on formal equality as remedy. Daria Roithmayr, Ian Haney Lopez, and Michelle Alexander have provided lucid scholarly explanations of different facets of 21st century racism.  The situation in Ferguson illustrates this reality in a number of ways.

    First, the shooting of Michael Brown offers a view on the reality of the enduring abuse that people of color suffer at the hands of the police. The problems of racial profiling, the use of excessive force by police departments, and the violence suffered by Black men and boys in particular has been well documented.  To take just one source: the ACLU has written numerous accounts about racial profiling in the United States. What their work makes clear is that the police disproportionately target minorities, and particularly minority youth because of their race.  And as a recent post on their blog has made clear, such profiling, and the tragic deaths that accompany it, are all too common in the United States.  And for those minority youth that survive these encounters, they are disproportionately incarcerated. The Sentencing Project has documented not only the 500 percent increase in incarceration rates in U.S. prisons generally over the last century, but the fact that a Black male under 35 has a 1 in 10 chance of being incarcerated.

    Second, as others have noted, Ferguson is two-thirds Black and one-third white, yet its mayor and five of the six members of its city council are white. And the overwhelming majority of its police force is white. And, as The New York Times has reported, this segregated power structure is the product of a long history of racial tension. The patterns of overzealous policing and unrepresentative governance make clear that the authorities in Ferguson are out of touch with the interests of the majority of people in Ferguson. This suggests a failure of competitive politics and a resistance of the government in Ferguson to hear the interests of its people. (Even when activists in Ferguson have sought to register people to vote – presumably to encourage people to use the democratic process rather than self-help violence – this too becomes highly contested.)

  • August 1, 2014
    Guest Post

    by Atiba R. Ellis, Associate Professor, West Virginia University College of Law

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    As we celebrate the fiftieth anniversary of the Civil Rights Act, and the fiftieth anniversary of the Freedom Summer protest, it is well worth reflecting on the how the movement challenged us to not only establish formal legal equality, but also to address enduring poverty. The Civil Rights Movement sought to persuade America that all Americans are equal. The Freedom Summer riders (and the many, many more who pressed for civil rights) sought to expose the inequality and oppression in the segregated south of 1964.

    The passage of the Civil Rights Act, the Voting Rights Act, the Fair Housing Act, still impact us today.  These enactments represent significant progress towards the goal of fostering equality. Moreover, with the contemporary tide of referenda and judicial rulings on marriage equality, the Civil Rights Movement continues to evolve to protect many people who fifty years ago weren’t deemed deserving of civil rights.

    Though we think of Martin Luther King, Jr., Freedom Summer, and formal legal equality when we think about the Civil Rights Movement, we should also remember that the struggle is really, as historian Jacqueline Dowd Hall explained, a “long civil rights movement.”  Hall’s work locates the genesis of the twentieth century movement in the 1930s with the social transformations that occurred due to economic disruption of the Great Depression.  Moreover, the long arc of legal transformation to foster equality began with the Civil War and the Reconstruction Amendments.  The civil rights struggle began with confronting the subordination and poverty slavery created.

    In this sense, the long civil rights struggle had economic equality of opportunity at its core from the beginning. As Jeremy Leaming discussed on this blog, the question of racial equality in twenty-first century America is at a crossroads in light of retrenchment in civil and voting rights.  Yet racial inequality and poverty walk hand and hand and continue to affect the lived experiences of people of color.

    NPR host Michel Martin recently wrote an article in the National Journal, discussing the key obstacles that women of color continue to face in the twenty-first century.  In discussing this article on NPR’s All Things Considered (where she called her essay her own “Letter from the Birmingham Jail”) she explained how poverty creates an enduring problem for racial minorities:

    People of color particularly — but not exclusively blacks and Latinos — are connected to poverty and to disadvantage in ways that often our white colleagues don't understand. That causes you to have to think about things that they aren't thinking about. And that's the kind of thing that I really feel a need to call attention to.

    Martin’s words -- especially as they reflect her own experience navigating the intersection of race and class-- remind us that poverty daily affects the lives of people of color, no matter how affluent.  Indeed, it is a yet-to-be-fulfilled civil rights issue of the long civil rights movement.

  • August 26, 2013
    Guest Post

    by Atiba R. Ellis, Associate Professor, West Virginia University College of Law. This post is part of an ACSblog symposium on the 50th Anniversary of the March on Washington for Jobs and Freedom.

    The March on Washington for Jobs and Freedom represented the high point of the decades-long civil rights movement against Jim Crow apartheid. The March brought heightened international attention to African Americans’ demands for social, political, and economic justice.  And the March offered a snapshot of the battle to awaken the moral imagination of the country. Indeed, the progress achieved in the 1960s battle for civil, political, and economic rights could not have been made without first winning the battle for the moral imagination of the United States. 

    The movement made apparent the injustices of Jim Crow. The movement called white America’s attention to the terrorism of lynching and bombings. The movement forced Americans to consider the effects of segregated facilities. The movement demanded equal participation for African Americans in the political process. The “I Have A Dream” speech spoke for many in the movement by setting out specifically the moral question of civil rights for African Americans to the country.

    Dr. King sought not just to evoke the question, but also to show the necessity of answering the question immediately. He said that “[w]e . . . come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy.”  Yet, 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. 

    Fifty years ago, because of the public shaming of nonviolent protest, the majority society of 1963 could no longer ignore the tyranny of American apartheid. As a result, Congress passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965.  We can rightfully rejoice in the fact that America today cannot be called an “apartheid” country. But the majority society of 2013 seems to have forsaken the Civil Rights Movement’s call to moral imagination. Instead, many in society seem to have fallen victim to a new kind of gradualism.

  • June 27, 2013
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law

    In  Shelby County, AL v. Holder, the Supreme Court, in a 5-4 decision split on ideological lines, declared unconstitutional the formula used under the Voting Rights Act of 1965 to determine which states and localities must receive pre-approval of their voting rights laws. This decision, which effectively ends the preclearance practice meant to preserve minority voting rights, will transform the right to vote for years to come. Once again, relying on the myth of racial progress, the Supreme Court failed to confront the racial balkanization in voting that exists, and it ultimately crippled the role that Voting Rights Act has in limiting it.

    This lawsuit was brought by Shelby County, Ala. This county, along with the rest of Alabama, as well as Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia, Alaska, Arizona, and parts of seven other states (known as the “covered jurisdictions”) was required under Section Five of the Voting Rights Act to have any change in their election laws approved (or “precleared”) by the U.S. Department of Justice. The covered jurisdictions were selected for the preclearance requirement according to a formula set out in Section Four of the act. The formula considered the jurisdiction’s past history of voting rights violations, current violations, white and minority voting rates, and other factors.  Shelby County argued that both Section Five’s preclearance requirement and Section Four’s coverage formula were unconstitutional. The Court struck down the Section Four formula.

    Chief Justice Roberts' opinion for the five-justice conservative majority relied on two premises. First, the opinion stated that each state is due “equal sovereignty,” that is each state has power to regulate matters left to the states, including voting, to the same extent as other states. As innocuous as that might sound, consider Roberts’s second premise:  “the conditions that originally justified [the preclearance measures that justified differing treatment of states] no longer characterize voting in the covered jurisdictions.” Slip op. at 2.  Roberts pointed to substantial progress in voter participation and the increase in minority elected officials in the time from the passage of the act until now.  Id. at 13-15. Yet, Roberts continued, the current coverage formula does not reflect this reality.  “Coverage today is based on decades-old data and eradicated practices.”  Slip op. at 18.  “Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.”  Id.