BookTalk

  • May 11, 2015
    BookTalk
    One Mississippi, Two Mississippi
    Methodists, Murder, and the Struggle for Racial Justice in Neshoba County
    By: 
    Carol V.R. George

    Carol V.R. George is research professor of history at Hobart and William Smith Colleges. Her new book, One Mississippi, Two Mississippi: Methodists, Murder, and the Struggle for Racial Justice in Neshoba County, will be released from Oxford University Press in May 2015.

    On June 21, 1964, civil rights activist Andrew Goodman sent a postcard to his parents announcing his safe arrival in Meridian, Mississippi: “This is a wonderful town… The people in this city are wonderful and our reception was very good.”  Little more than twenty-four hours later Goodman was dead. Along with his two colleagues, James Chaney and Mickey Schwerner, Goodman was shot on a dark wilderness road by a group of local Ku Klux Klan members.

    Forty-one years later, in June 2005, Edgar Ray Killen was named the architect of the conspiracy that killed these civil rights workers. This delay of over four decades to bring a measure of justice to this case—to the families of the victims as well as to those who had supported the plan to enfranchise black voters. It was powerful testimony about the nature of historical amnesia.

    Once the Voting Rights Act of 1965 provided blacks the ballot, Americans generally—not just Mississippians—readjusted their moral compass to focus on issues other than those that once motivated movement activists. All those years, Edgar Ray Killen walked the streets of Neshoba County, Mississippi, confident that the surrounding white community would never bring charges against him, because the case had gone cold, because he was growing old, because it would resurrect bad memories, but also because at some level many believed his crime was not that horrific. Goodman and Schwerner were outsiders; Chaney, too, though he was a black resident of Meridian; and they had come into Neshoba County uninvited, with plans to disrupt the way of life most white Southerners held dear. Some whispered that “it was good they were gone,” and for Killen and his supporters, that sounded like an endorsement of what he had done.

  • May 7, 2015
    BookTalk
    Allegiance
    A Novel
    By: 
    Kermit Roosevelt

    by Kermit Roosevelt, Professor of Law, University of Pennsylvania Law School

    In 1896, in Plessy v. Ferguson, the Supreme Court upheld a Louisiana law that segregated railroad cars by race.  The Equal Protection Clause, the majority explained, prohibited discrimination that aimed to stigmatize or oppress a group, but racial segregation did not.  It was, instead, a reasonable, good faith response to the way things were.  In 1954, in Brown v. Board of Education, the Court changed its mind.  Segregation was inherently stigmatizing, it said, and anything to the contrary in Plessy was overruled.

    This pattern ‒ initial acceptance of a certain kind of discrimination followed, years later, by its rejection ‒ has repeated itself with each major civil rights movement in our constitutional history.  Plessy yields to Brown; Bowers to Lawrence; Bradwell v. Illinois (which upheld Illinois’ exclusion of women from the practice of law) to modern sex equality cases like United States v. Virginia.

    But how does this constitutional progress occur?  It is not, I’ve suggested, the work of heroic philosopher judges, discerning the true meaning of the concept of equality.  Nor does it rely on diligent historians, uncovering the understandings of the people who ratified the Fourteenth Amendment.  It happens because social movements change the minds of the American people about what is or is not oppressive, stigmatizing, or invidious.  It is the judicial recognition of a change that occurs, first and primarily, outside the courts.

    That change is the expansion of what Attorney General Francis Biddle called “the compass of sympathy” ‒ the scope of our ability to look at others and see our shared humanity.  Social movements changed the outcome of constitutional cases by convincing Americans that those who had seemed different were not so unlike them after all; that the aspirations and desires of blacks, or women, or gays, were fundamentally the same as those of the rest of society, and that what these groups sought was not special rights or unique privilege but equality and inclusion.

  • April 20, 2015
    BookTalk
    Democracy in the Dark
    The Seduction of Government Secrecy
    By: 
    Frederick A. O. Schwarz, Jr.
    by Frederick A.O. Schwarz Jr., Chief Counsel of the Brennan Center
     
    Some secrecy is necessary, but too often secrecy is used to hide illegality, embarrassment or conduct departing from American values. Contrary to conventional wisdom, however, these reasons do not explain by themselves why America’s mountains of classified documents grow ever higher. Human nature and bureaucratic incentives favor secrecy over openness.  Secrecy is seductive. Beyond the timeless link between secrecy and power, secrecy limits challenges and risky questions.  It fosters illusions of grandeur.  Fear, awe, jealousy and lethargy all help cement a culture of secrecy.
     
    Secrecy spawns more secrecy.  The more information increases and secrets proliferate, the more professionals are tempted to use secrecy to get noticed.  If you want your individual snowflake report to be read and not buried by avalanches of paper or blizzards of bytes, you better be sure it is classified and, indeed, escalate its classification to top secret or beyond. Secrecy’s seduction often blinds those with access to secrets to other valuable sources. Even though information from open sources (newspapers, magazines, TV, radio and the Internet) is often unique and valuable, many recipients of intelligence have no interest in such information, only wanting super-secret material from spies and intercepts.  Moreover, secret is often conflated with true.
     
    Escalating secrecy also adds to institutional prestige, explaining, for example, why CIA leaders fight fiercely to keep the President’s Daily Brief (PDB) super-secret. Prior to 9/11, the Bush Administration reduced PDB circulation to just six people, excluding the Attorney General, FBI Director, and White House counterterrorism chief.  During the summer of 2001, these super-secret submissions to the White House contained many dire al Qaeda predictions that something “very, very, very big” was about to happen; “spectacular”; resulting in “numerous casualties.” Had the White House publically disclosed the gist of the top-secret threat warnings, it is likely lower-level government officials would have acted on information like the disturbing number of individuals of investigative interest attending aviation schools.  Disclosure could also have led to more imaginative thinking about possible terrorist actions.  White House disclosure of the warnings might well have averted 9/11.
     
  • April 14, 2015
    BookTalk
    The Workplace Constitution
    from the New Deal to the New Right
    By: 
    Sophia Z. Lee

    by Sophia Z. Lee, Professor of Law & History, University of Pennsylvania Law School

    “Right to work” is dominating the news, making headway in union strongholds and finding sympathy on the Supreme Court.  Yet the concept of a legal “right to work” harkens back to the early Twentieth Century when this and other substantive due process doctrines were used to strike down Progressive labor laws.  The New Deal Court supposedly laid to rest this “Lochner era” (thus named for an emblematic 1905 decision holding that a New York maximum-hours law violated workers’ and employers’ freedom of contract).  So how have right-to-work proponents managed to rally successfully behind such an anachronistic term?

    The Workplace Constitution from the New Deal to the New Right provides the first legal history of the right-to-work campaign.  As it demonstrates – right-to-work strategists’ Lochner-era moniker notwithstanding – these savvy and forward-looking activists quickly replaced their substantive due process claims with ones based on the First Amendment.  In the process, they forged a modern conservative civil rights campaign that grew up alongside its liberal counterparts.

    The conservative activists who fought the union power unleashed by the New Deal had sturdy Lochner-era roots.  Even before the New Deal, employers had moderated their open-shop activism, insisting that they were anti-closed shops, not anti-union.  When activists first gathered under the right-to-work banner in the early 1940s, their argument that no one should have to join or support a union to keep a job was in keeping with that Lochner-era position.  In 1944, Hollywood mogul Cecil B. DeMille brought the first right-to-work lawsuit over a one dollar assessment levied by his union.  DeMille’s suit likewise relied on Lochner-era substantive due process claims and precedent.

    But right-to-work activists quickly updated their legal claims to fit the emerging civil rights and civil liberties regime.  Even DeMille’s suit reflected this change: On appeal, DeMille’s lawyers added First Amendment forced speech claims based on the 1943 Supreme Court decision West Virginia Board of Education v. Barnette, which found that public schools could not compel students to salute the flag.  

    In the 1950s, right-to-work advocates pursued a coordinated litigation campaign akin to the NAACP’s challenge to public school segregation.  When their cases reached the Supreme Court in the 1950s and ‘60s, First Amendment forced speech and association claims, along with post-New Deal precedents, predominated.  Over succeeding decades, right-to-work advocates eliminated substantive due process claims from even the margins of their lawsuits.  The constitutionality of union security agreements comes before the Supreme Court today strictly as a First Amendment issue.

  • March 16, 2015
    BookTalk
    Ideas with Consequences
    The Federalist Society and the Conservative Counterrevolution
    By: 
    Amanda Hollis-Brusky

    by Amanda Hollis-Brusky, professor of political science at Pomona College

    “A Vast Right-Wing conspiracy!” “The Conservative Cabal Transforming America!” “Are you now or have you ever been a member of the Federalist Society?”

    The Federalist Society for Law and Public Policy Studies has been no stranger to accusations of this kind over the years. Those on the left and the right universally acknowledge that the Federalist Society is an organization of significant consequence. But very few understand how this self-professed “society of ideas” with none of the traditional signs of political power is exerting its influence on law and the legal culture. Drawing on a trove of archival, ethnographic and original interview data, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution addresses this question head on.

    The Federalist Society – a network of more than 40,000 conservative and libertarian lawyers, academics, judges, policymakers, and journalists dedicated to reshaping the law – grew out of the frustrations of a small group of right-of-center law students who felt isolated in their left-of-center law schools in the 1980s. Inspired by the ideas and tenets of the Reagan Revolution raging outside the walls of their elite law schools, these first Federalist Society members were recruited to work as Special Assistants in the Reagan Justice Department where they heard two oft-repeated phrases: “ideas have consequences,” and “policy is people.” These two phrases would become the two main pillars of the Federalist Society as we know it today – as an organization that intellectually trains and socializes its members, exposing them to a distinctly conservative and libertarian way of thinking about the law and also encourages and facilitates opportunities for its members to put these ideas and principles into practice as lawyers, judges, etc. It is a simple formula, but one that has served them remarkably well over the past thirty years: ideas + people = policy consequences.