Equality and Liberty

  • February 9, 2016
    Guest Post

    by Ekow N. Yankah, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University

    *This post is part of ACSBlog's Symposium Recognizing Black History Month.

    The core values of ACS, by my lights, can be captured in our commitment to both equality under the law and equality through the law. Indeed, many of our most progressive values do not require complex justification. They only require us to think truthfully about how we would structure the law when its weight is borne by those we care about the most. To that end, I hope to provoke real reflection on the way our drug policies are shaped by how much we care about those in the grip of addiction.

    Please read my op-ed in The New York Times, titled "When Addiction Has a White Face."


  • February 1, 2016
    Guest Post

    by Juan Perea, professor of law, Loyola University Chicago School of Law

    *This post is part of ACSBlog's Symposium Recognizing Black History Month.

    Most contemporary historians conclude that the American Constitution is a proslavery document. When I speak with historians about teaching constitutional law, often they are shocked that law professors typically do not teach the Constitution as proslavery. I think the general failure to teach the Constitution as a proslavery document does a major disservice both to students and to society.

    So what do I mean when I label the Constitution “proslavery?” I mean that the Constitution protected slavery and promoted slave ownership. The Constitution’s text contains several proslavery clauses. The Apportionment Clause, Article I, Section 2, added three-fifths of “all other Persons” ‒ slaves ‒ to the number of free inhabitants of a state for purposes of representation. This clause, by boosting the number of representatives in Congress for the slave states, guaranteed political protection for slavery. The same three-fifths ratio boosted the representation of slave states in the Electoral College during presidential elections. The slave import limitation, Article I, Section 9, prohibited Congress from regulating the international slave trade until 1808, 21 years after ratification of the Constitution. Not only was Congress forbidden from regulating the transoceanic slave trade, but Article V of the Constitution explicitly forbids amending the slave import limitation, one of only two such forbidden matters in the whole document. Lastly, the Fugitive Slave Clause, Article IV, Section 2, guaranteed nationally, for the first time, the right of slave owners to pursue and reclaim their slaves anywhere throughout the land.

    The Constitution thus protected slavery by increasing political representation for slave owners and slave states; by limiting, stringently though temporarily, congressional power to regulate the international slave trade; and by protecting the rights of slave owners to recapture their escaped slaves. The Constitution also promoted slave ownership by promising increased political representation while keeping unregulated the flow of slaves through the international slave trade for 21 years. Pretty significant protections, don’t you think?

    At this point one might ask, didn’t Reconstruction abolish slavery and require equal protection of the laws? Yes, the Reconstruction amendments did accomplish these things. However, the formal abolition of slavery only changed the rules of play, not the game of white domination itself. Slave codes became black codes, which became Jim Crow laws, which became race-neutral laws with outsized, unfair disparate impacts on people of color. Formal equal protection has yielded, in the main, only ostensibly race-neutral laws with heavily disparate racial impacts.

  • December 31, 2015

    by Jeremy Leaming

    Our blog owes much to those who provide us intellectually inspiring and thought-provoking pieces throughout the year on myriad constitutional and legal policy concerns. And 2015 was no different. We have many to thank in the ACS network, such as Elise Boddie, Erwin Chemerinsky, Adam Winkler, Atiba Ellis, Ann Hodges, Charlotte Garden, Nkechi Taifa, Steve Sanders, and so many others. Until our website is refreshed – and that is an ACS goal – it can be daunting and likely frustrating to make it through 53 landing-pages worth of guest posts.

    So what follows is a sampling of guest posts, symposia and blog interviews from 2015. Enjoy, and thanks to all who took time to provide material for ACSblog, and to those who read.

    Fair House Acting under attack, and before a right-wing Supreme Court, see Professor Valerie Schneider’s Jan. 20 post.

    Rutgers law professor Elise C. Boddie on MLK’s “arc of the moral universe,” and the ongoing attacks on civil rights laws, such as the Voting Rights Act, and the Fair Housing Act. (And in the indispensable Give Us the Ballot, which The New York Times’ recognized as a 2015 notable, The Nation’s Ari Berman looks at the history behind the landmark Voting Rights Act of 1965 and the modern day efforts to crush gains from the law.)

    Another must-read of 2015, ACS President Caroline Fredrickson’s book, Under The Bus: How Working Women Are Being Run Over. In this post for ACSblog, Fredrickson delves into why she wrote the book, and its importance to any discussion of labor law and policy.

    National Women’ Law Center’s Kelli Garcia on the harmful effects of attacks on abortion rights, especially, and not surprisingly, for women in abject poverty.

    In our symposium on racial inequalities in the criminal justice system, the Equal Justice Initiative’s Jennifer Taylor examined the prevalent and pernicious racial discrimination of the jury selection system. Also in that symposium, The Sentencing Project’s Nazgol Ghandnoosh explored the three sources of racial discrimination in criminal sentencing.

    In our symposium on King v. Burwell, the 2015 high-profile legal challenge from the nation’s rabid right-wing to a significant provision of the Affordable Care Act, University of Chicago law school professor David Strauss explains how “wrong” that challenge was.

    University of Indiana law school professor Steve Sanders takes on Gov. Mike Pence’s anti-gay politics behind the defense of a so-called religious liberty law. Also see, UCI Law’s Erwin Chemerinsky on the same matter, in which he concludes, “Discrimination in the form of the refusal to do business with a person because of his or her religion or race or sex or sexual orientation is wrong whether based on religion or anything else.”

    Open Society Foundation’s Nkechi Taifa on racial inequalities in the criminal justice system and some rare bipartisan concern.

    GW Law’s Alan B. Morrison on Judge Andrew Hanen’s wobbly, but troubling ruling against the Obama administration’s immigration reform efforts.

    One that The New York TimesAdam Liptak noted, a piece from Georgia State University College of Law professor Eric J. Segall on oral argument in Obergefell v. Hodges, the Supreme Court case that would, later in the summer, become a landmark equality victory. The Segall piece was part of ACSblog’s symposium on marriage equality. (Also see Chemerinsky’s thoughts on the case from the symposium.)

    Seattle law school professor Charlotte Garden takes a look at another Supreme Court case that challenges, again, longstanding labor rights of public sector teachers.  

    Racial inequalities throughout the nation remain, depressingly and fatally, dominant. WVU law school professor Atiba R. Ellis provided ACSblog numerous posts on those inequalities and why police murders that disproportionately target black men and women continue unabated, but are not being ignored – witness the work of Black Lives Matter. Ellis’s May 2015 post looks at the “Baltimore Uprising.”

    Richmond School of Law professor Ann C. Hodges on the right-wing attack on public sector labor rights in the case before the Supreme Court, Friedrichs v. Calif. Teachers Association. Also see Hodges’ ACS Issue Brief, released in late November, about Friedrichs.

    Georgetown law professor Lisa Heinzerling on the outcome of the statutory, separation of powers challenge to the health care reform law, and its impact on environmental regulations.

    In the ACSblog symposium regarding the 50th anniversary of the landmark civil rights law, the Voting Rights Act, UNC law school professor Gene Nichol looks at Chief Justice John Roberts’ out-of-touch and seriously harmful understanding of racial discrimination in voting. (Also see, WVU law professor Atiba Ellis’ piece, “Racial Majoritarian Tyranny and the Voting Rights Act of 1965.”)

    The Civil Rights Movement lost a leading figure with the death of Julian Bond. UNC law professor and civil rights leader Theodore M. Shaw provided a moving tribute.

    Kentucky county clerk Kim Davis refused to recognize marriage equality following the high court’s landmark opinion in Obergefell v. Hodges, making her an instant hero of right-wing politicians. Retired Montana Supreme Court Justice James C. Nelson, however, had a different take. For ACSblog he blasted Davis for flouting her duties to uphold constitutional principles, and for flaunting her bigotry.

    OSF’s Nkechi Taifa again provided commentary for ACSblog on the criminal justice system's continual reliance on lengthy prison sentences that disproportionately destroy black lives.

    For ACSblog’s 2015 Constitution Day Symposium, WVU law professor Atiba Ellis examined our nation’s failure to address persistent violence against black lives and communities and the constitutional failure to end that violence.

    In an interview with ACSblog, recent law school graduate Jarrett Adams discussed his arduous and very personal journey through a justice system that still disproportionately harms and destroys black lives.

  • December 23, 2015
    Guest Post

    by Kimberly West-Faulcon, Professor of Law, Loyola Law School in Los Angeles. Professor West-Faulcon holds the endowed James P. Bradley Chair in Constitutional Law at Loyola Law School, and is  author of an amicus brief filed in Fisher v. Texas. Follow on her on Twitter and Facebook.  

    Supreme Court Associate Justice Antonin Scalia’s remarks earlier this month during oral arguments in Fisher v. Univ. of Texas at Austin that African Americans may be better off in “slower track” colleges were an articulation of the counterintuitive and fully debunked theory that Black and Latino students would benefit if the Supreme Court were to rule that racial affirmative action violates the 14th Amendment Equal Protection Clause.  By the way, among the major debunkers of the so-called “mismatch hypothesis” are former Harvard and Princeton presidents and authors of the book The Shape of the River—Derek Bok and William Bowen.  Bok and Bowen’s findings contradict Scalia’s observations about the benefits of affirmative action for students of color.  How Supreme Court Justice Anthony Kennedy—the notorious “swing vote” on the current Supreme Court—reacts to Scalia’s accurate but stark articulation of the mismatch hypothesis will likely dictate the future of racial affirmative action by colleges and universities.  However, Kennedy’s rejection of the idea that Blacks are “ill-matched” to elite schools will not be enough for the University of Texas to pull out a victory in the Fisher case.  Kennedy will also have to reject another common theory long-invoked by critics of racial affirmative action policies—the theory that racial affirmative action is “classist.” 

    In specific terms, education writer Richard Kahlenberg’s charges (in a brief filed in the case) that the University of Texas considers race in a manner that is “classist” has a key similarity to Justice Scalia’s remarks—both focus on a purported negative attribute of Black students instead of either the details of UT Austin’s admissions policy, particularly its very restrained consideration of race, or the fact that, due to her less-than-stellar high school grades and SAT score, Abigail Fisher has a weak constitutional claim.  Instead, Kahlenberg encourages the Court to view 90 percent of Black students at top colleges as financially privileged enough to be considered “wealthy.”  Completely ignoring the very real “racial wealth gap” in this nation, the brief Kahlenberg submitted to the Supreme Court goes so far as to state: “a poor white student from a trailer park might add more diversity than a wealthy African American graduate of a prep school.”  This proposition is racially divisive, contrary to research findings of the educational benefits of “diversity within diversity,” and based on data that is either very weak or irrelevant.

    First, Kahlenberg’s brief claims that “nine in ten black students are middle and upper class”—interestingly, for support of this claim, he relies on a study by the former presidents of Princeton and Harvard Universities who disagree with Kahlenberg on the propriety of racial affirmative action. However, Bok and Bowen report income datanot wealth data—that 71 percent of African Americans had “family income over $22,000” and that 15 percent had family income above $70,000.  Adding 71 percent and 15 percent (86 percent) is what seems to get Kahlenberg to the “roughly nine in ten” figure.  This move completely ignores the critical fact that income and wealth are very different measures and that passing the threshold of $22,000 annual income does not make a Black family wealthy.

    Second, another weakness in Kahlenberg’s  assertion of Black “affluence” is that it relies on a study by minority mismatch expert Richard Sander based on a small sample size—“a total of 61 black respondents at elite schools” and a 2011 study by Sander in which Sander himself points out that being “upper-middle-class” “means something different” when you are Black “than what it means when applied to whites or Asians” because African Americans “have much lower wealth at a given level of income” and “middles-class blacks are much more likely to live in segregated neighborhoods with high poverty rates.” 

  • December 8, 2015
    Guest Post

    by Rachel Easter, Legal Fellow, National Women’s Law Center

    Over the last five years, politicians have enacted an onslaught of abortion restrictions—more than 280 throughout the country. Politicians designed these laws to make it more difficult— often impossible—for women to access abortion, jeopardizing a woman’s constitutional right to decide whether to have an abortion. The state of Texas has been at the center of anti-abortion efforts with HB 2, a law passed in 2013 that has already closed more than half of the clinics in the state, leaving some Texas women hundreds of miles from the closest clinic. This term, the Supreme Court will hear a challenge to parts of the Texas law in Whole Woman’s Health v. Cole, the Court’s first major abortion case in nearly a decade.

    With this case, the Court has the opportunity to reaffirm that women have a fundamental right to abortion and make clear that right is rooted in both liberty and equality. The right to abortion is part of a line of cases recognizing that matters “involving the most intimate and personal choices a person may make in a lifetime” are “central to personal dignity and autonomy.” That principle underlies constitutional protection for parental rights, the right to access contraception and abortion, and the right to marriage. These cases have traditionally been understood to stem from the Due Process Clause of the 14th Amendment, but the constitutional principles of liberty and equality are fundamentally connected. The Court’s decision in Planned Parenthood v. Casey recognizes the interrelated nature of Due Process and Equal Protection. In that case, the important truth that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives” played a key role in the Court’s decision to reaffirm women’s constitutionally protected right to abortion.

    Since that case, the connection between liberty and equality has become more explicit. In Lawrence v. Texas, the Court struck down laws criminalizing certain sexual acts between two people of the same sex because the laws both perpetuated inequality and infringed on the liberty to control certain personal relationships. And in Obergefell v. Hodges the Court held that bans on same-sex marriage subordinate same-sex couples by denying them the rights and privileges of marriage, a denial that both burdens liberty interests and “abridge[s] central precepts of equality.” In that case, the Court made clear that Due Process and Equal Protection are “instructive as to the meaning and reach of the other.…[I]nterrelation of the two principles furthers our understanding of what freedom is and must become.” Looking at HB 2 through this lens, it is clear that the law unconstitutionally burdens women’s liberty and equality interests.