Hurricane Katrina: Five Years Later, And Still We Rise

By Nsombi Lambright, Executive Director of the American Civil Liberties Union of Mississippi.

I can't believe that five years have passed since Hurricane Katrina devastated Gulf Coast communities in Louisiana, Mississippi and Alabama. And although groups and advocates who were experienced in disaster recovery told us that it would take at least ten years to rebuild, I never imagined that five years later, we'd still face the same challenges. The fifth anniversary of Hurricane Katrina; are we celebrating growth and recovery, commemorating a tragedy, or both?

As I viewed the film "Trouble the Water" this week, I was mixed up inside. The ACLU of Mississippi partnered with an organization started by Katrina Survivors who relocated from New Orleans to Jackson, called Rise Above Katrina, to show the film at Tougaloo College, a historically black college in Mississippi. I met the New Orleans natives from Rise Above Katrina and hundreds of others from the Mississippi Gulf Coast immediately after Hurricane Katrina as the ACLU began to monitor the Government's overall response to the disaster as well as the disparities between services provided to white communities and people of color communities. In 2006, the ACLU participated in a U.S. delegation to Geneva to discuss the impact of these disparities to the United Nations Human Rights Committee. The ACLU also provided technical and legal assistance to Rise Above Katrina when they were threatened by law enforcement when protesting in front of the American Red Cross offices in Jackson. The group protested the American Red Cross' distribution of disaster relief funds.

As I interacted with Wilma Taylor and LaShawn Traylor and some of the other survivors, I thought about how far they'd come. Wilma is a Gulf Coast Fellow who is starting her own organization to advocate for individuals with disabilities. LaShawn is finishing her education and continuing her ministry. They've moved into new homes, celebrated births.

Life has moved on. They have risen above Katrina. However, there's still a glimpse of sadness remaining in their eyes. It's a sadness that allows you to travel into their bodies and view the pain in their souls. You hear it when they talk about loved ones who didn't make it through the storm. You hear it when they talk about their disappointment in the governments that let them down. The city of New Orleans, which did not provide transportation for people to leave; the state of Louisiana, which brought military and law enforcement in to shoot and arrest survivors; the state of Mississippi, which withheld federal dollars from everyone except homeowners; the city of Jackson, which moved everyone out of the temporary shelter of the coliseum because a Disney show was coming to town; Harrison County, the place that has not rebuilt shelters for the homeless and arrests people for not having a place to rest their heads at night.

The list of disappointments is endless. And still they rise. They rose above the storm to accomplish great things. They rose above the storm with new friends and family who were survivors too. They rose above the storm with a new sense of awareness about the importance of fighting for those who cannot fight for themselves. And even though they are still rising, they don't forget; they won't forget; they can't forget. I'll be there with them, rising too; until there is true freedom and justice for all!

[Photo courtesy of Infrogmation]

"No Rights Which the White Man was Bound to Respect": The Dred Scott Decision

by Martin Magnusson, Editor-at-Large

This month marks the 150th anniversary of the Supreme Court's infamous Dred Scott v. Sanford case, in which an African American slave sued for his freedom. Dred Scott's argument was that because he had been brought into free territories, he could not be returned to the bonds of slavery. Over the course of eleven years, his case was litigated several times over and eventually wound its way into the United States Supreme Court.

On March 6, 1857, Chief Justice Roger Taney issued what is widely regarded as the worst Supreme Court opinion ever. He noted that the question before the Court was whether African Americans are citizens of the United States and thus able to file suit in federal court. His analysis of that issue is couched in abjectly racist language:

[African Americans] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.

The response to this opinion was immediate. Rather than settle the issue of slavery, it simply inflamed public opinion and divided the country further. Frederick Douglass assailed Chief Justice Taney's opinion, noting that the rights of African Americans derive not from any judicial pronouncement, but from natural law:

We are now told, in tones of lofty exultation, that the day is lost all lost and that we might as well give up the struggle. The highest authority has spoken. The voice of the Supreme Court has gone out over the troubled waves of the National Conscience, saying peace, be still . . . The Supreme Court of the United States is not the only power in this world. It is very great, but the Supreme Court of the Almighty is greater.

This understanding of Dred Scott has now become almost universal. During his recent confirmation hearings, Chief Justice John Roberts was asked about the Dred Scott decision. He characterized it as a deplorable act of judicial fiat, claiming that it is

[P]erhaps the most egregious example of judicial activism in our history . . . in which the court went far beyond what was necessary to decide the case. And really I think historians would say that the Supreme Court tried to put itself in the position of resolving the dispute about the extension of slavery and resolving it in a particular way that it thought was best for the nation. And we saw what disastrous consequences flowed from that.

Chief Justice Roberts seems to define judicial activism as the Court's officious resolution of an ongoing national debate. It is certainly easy to decry the Dred Scott decision, which is uniformly reviled, as judicial activism. If the Court had concluded that freed slaves were entitled to full national citizenship, though, would it be as easy to characterize that conclusion as judicial activism? In a recent episode of C-SPAN's America and the Courts, Professor Mark Graber expressed his sentiment on that issue, noting that “judicial activism is when the court makes rulings that I do not like . . . I think we would all be better off if we skipped the words the 'judicial activism' from our vocabulary.”

The Dred Scott decision is remembered as dividing the nation, precipitating the Civil War and ultimately being overturned by the Thirteenth and Fourteenth Amendments. 150 years later, one might ask what the legacy of the Dred Scott decision is. Perhaps its legacy is seen most starkly in the war on terror. In a recent SSRN paper, Professors Jack Balkin and Sanford Levinson suggests that Chief Justice Taney's analysis of who is a entitled to the rights of citizenship is eerily evocative of ongoing debates over who is entitled to constitutional protections:

We get closer to understanding Taney’s logic when we think about the obligations we owe to suspected enemies of the state, and, in particular, how we should conduct what the Bush Administration terms the “global war on terror.” Surely the most dramatic example involves the Administration’s assertions of authority in a famous Office of Legal Counsel . . .  memo to engage in torture—or “cruel, inhuman, and degrading” methods of interrogation—on those persons the President deems, often by fiat, potential enemies of the country. Torture, almost by definition, requires treating another person as if he or she has no rights that the interrogator is “bound to respect.”