Book Review: Winning the War to Secure Multiracial Democracy

For decades, author and activist Steve Phillips has navigated the loosely aligned but distinct worlds of Democratic donors, progressive think tanks, community organizing, and multiracial coalition building. He has pushed Democratic party leaders to hire diverse staffers and vendors, and he has founded groups that support progressive organizing and diverse candidates. He’s also urged Democrats to win more elections by shifting resources from targeting a narrow group of white swing voters to expanding participation by voters of color.

In his new book How We Win the Civil War: Securing a Multiracial Democracy and Ending White Supremacy for Good, Phillips asserts that our nation faces a primary question of whether we are “fundamentally a white nation or a multiracial democracy.” He believes that too many progressives avoid this question (and racial issues generally) because they discount the question’s importance or because they fear political backlash from white moderates and conservatives. Phillips argues that the Civil War never truly ended and continues to this day—and that Americans need to wake up and stop contemporary efforts to destroy multiracial democracy.

In the first part of the book, Phillips asserts that in each era since 1865, Confederates and their ideological descendants have consistently used five tactics to stifle multiracial democracy: 1) never give an inch; 2) ruthlessly rewrite the laws to preserve white power; 3) distort public opinion to whitewash white supremacy; 4) silently sanction terrorism; and 5) play the long game.

For example, Phillips argues that opponents of multiracial democracy were unyielding in the 1950s when they closed rather than integrated public schools, and are unyielding today in refusing to accept that Joe Biden won the 2020 election. Multiracial democracy opponents once preserved power by erecting poll taxes and literacy tests—they now ban 24-hour voting and giving food and water to voters waiting in line. Confederate monuments and films like Birth of a Nation were once the primary tools to whitewash public opinion, and now that work is done by racialized disinformation on social media and cable news. Past government officials passively sanctioned KKK terrorism and mob lynchings, while contemporary officials obstruct investigations of white domestic terrorist networks and January 6 insurrectionists.

In the second part of the book, Phillips provides a roadmap for multiracial democracy supporters to win the Civil War. He highlights local organizations and leaders like Stacey Abrams, Tram Nguyen, and Andrea Guerrero who have successfully turned red areas blue in places like Georgia, Arizona, Virginia, San Diego, and Houston. He urges progressives to replicate these victories using four key strategies: 1) invest in visionary local leaders who are committed to the larger cause; 2) build strong civic engagement organizations; 3) develop detailed, data-driven plans to identify and mobilize underrepresented voters of color; and 4) “play the long game” to set and achieve incremental goals over several election cycles that eventually transform the electorate and public policy.
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How We Win is an unapologetically progressive organizing book. Phillips offers inspiring stories of everyday people utilizing democracy to organize and transform their communities. He shows how change happens by quoting directly from organizing strategy memos and showing data on the number of new voter registrations and door knocks needed to increase turnout and win elections. Phillips shows that multiracial democracy is not the inevitable byproduct of demographic change, but also requires strong local leaders and institutions, data, and strategy. How We Win is required reading for every volunteer and professional progressive organizer who wants to take action rather than just complain or pontificate.

Some “Make America Great Again” adherents may claim that Phillips is fueling division by declaring Civil War on all 74 million Americans who cast ballots for Donald Trump in 2020. But Phillips’s stated target is white supremacy—and rather than trying to contain this threat through appeasement he sounds the alarm to rally action against it. Phillips explicitly acknowledges the value of compromise in communities “bound together by common values and mutual respect,” but believes that in light of historical and contemporary attempts to cripple multiracial democracy, “it is nonsensical to continue to act like our opponents are people of good faith.” For Phillips, “[w]inning a war requires that you first recognize that you are in a war.”

While Phillips’s book is an important contribution because of its potential to inspire organizers and convince Democrats to fully embrace multiracial democracy, I do want to add a dose of reality.

If the Civil War was not won in 1865 or upon the passage of the Voting Rights Act of 1965, it will not be won after local organizers mobilize voters of color to transform politics in places like Florida, Georgia, North Carolina, and Texas. Granted, widespread civic engagement is essential, and policies will better reflect the interests of communities of color. But multiracial democracy will not be secure.

Top congressional staff—both Republican and Democratic—likely still will be disproportionately white. White supremacists and election deniers will still use tech platforms to distort public opinion with racialized disinformation, and invoke the need to protect their "freedoms" to incite and justify violence. While some politicians will be more responsive to voters of color, others will try to contain these voices by erecting new voting barriers. A majority of the current U.S. Supreme Court will still undermine the future of multiracial democracy by diluting the Voting Rights Act and the 14th and 15th Amendments.

Republican and Democratic politicians will still try to appeal to whites who harbor little racial animus, but feel increased cultural anxiety because the white share of the overall electorate is declining. The bulk of this group will still likely support policies they feel preserve their own status like Social Security and immigration restrictions, while opposing Medicaid, racial equity proposals, and reforms that expand the freedom to vote.

The future of multiracial democracy is bigger than any one book, election cycle, or political party. To truly secure a multiracial democracy, we will need citizens, grassroots leaders, researchers, historians, technologists, policymakers, philanthropists, strategic planners, and public education and debate to work through some big issues. The work will take time and the inclusion of diverse communities—it cannot simply be driven by a few white experts with sign off by a handful of civil rights groups.

In proactively building a new multiracial democracy, we’ll need to grapple with tough questions. How do we truly transform rather than simply retrofit institutions that were never originally designed to facilitate multiracial democracy, like the U.S. Senate and House, the Electoral College, the U.S. Supreme Court, state governments, and tech platforms? Can we truly have a healthy multiracial democracy if the concept is seen as the dominion of one major political party while being opposed by the other? When are election rules that favor a declining white population a legitimate exercise of democracy, and when are they racial entrenchment? What lessons about multiracial democracy can we learn from other countries?

How We Win is a foundational contribution to the emerging field of multiracial democracy. By centering community organizers rather than abstract manifestos, the book demonstrates an authentic commitment to democracy. How We Win is well positioned to shape election outcomes, policy outcomes, and debates about the future of multiracial democracy.
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Image of Spencer Overton

Spencer Overton is a Professor of Law at George Washington University who specializes in race, democracy, and law. He is also the fifth president of the Joint Center for Political and Economic Studies, which was founded in 1970 and is America’s Black think tank. 

Dobbs and Trump Bring Focus to Prosecutorial Discretion

“The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.” Robert H. Jackson, former Associate Justice of the U.S. Supreme Court, April 1, 1940

 U.S. Attorney General Merrick Garland will shortly decide whether to indict Donald J. Trump for one or an array of federal criminal offenses. The country is rightly focused on this case, but similar decisions are made every day by thousands of local prosecutors in counties and cities across this nation about whether to charge persons for crimes. And, just like Garland, the decisions made by these local attorneys are coming under increasing political scrutiny and criticism, mostly from elected officials in conservative states. It is yet another battleground in the fight for the heart and soul of America.

The power of local prosecutors to decide whether and how to proceed in any given case is a long-established principle in American law. Known as “prosecutorial discretion,” it is built on the idea that these local lawyers are best positioned to exercise sound judgment in handling their cases while being respectful of community standards. The ultimate backstop to this system rests with local citizens, who, in all but five states, can vote out chief prosecutors whose decisions do not reflect the views of the community they serve. Direct election of public prosecutors, and their accompanying discretion, has been the tradition in our system since the 1830s and is unique among the western democracies. Only three states--Alaska, Delaware, and Rhode Island— do not provide for local prosecutorial discretion; in those, the state controls prosecutions.

New Prosecutors and New Policies 

When prosecutors were putting more people in jail for longer periods of time, law-and-order types were content to let them operate independently. Rarely were they second-guessed, if only because the legal profession has considered prosecutorial discretion the norm and a foundation of our criminal justice system. But recently, prosecutors throughout the country began to change their approach. Public attitudes increasingly questioned whether incarceration was always the best response to certain types of crime, and newly elected local prosecutors adopted new approaches reflecting this community sentiment.

Prosecutors in Baltimore stopped prosecuting shoplifting and marijuana crimes. Prosecutors in St. Louis chose not to pursue cases that arose from recent political protests. In Portland, prosecutors would not press trespassing offenses. Some smaller jurisdictions followed suit, drawing the ire of the law-and-order types who control state legislatures, especially in Republican areas. Lawmakers in these states are now seeking to undermine prosecutorial decisions through executive orders and legislation, much like they are preempting the actions of local governments with which they disagree. Attorneys call this “supersession,” but it is just another word to describe efforts by state lawmakers to nullify the decisions of local chief prosecutors and exercise greater power over them.

These actions are proving effective. When a prosecutor in Orlando, Florida announced that she would no longer seek the death penalty, then-Governor Rick Scott responded by reassigning death-penalty-eligible cases to another prosecutor. In 2019, Pennsylvania’s Republican-controlled state legislature, in a move targeting Philadelphia district attorney and long-time reformist Larry Krasner for his aggressive prosecution of firearms offenses in Philadelphia, passed legislation to allow the state’s attorney general to take control of these violations in that city — and nowhere else in the state. And Tennessee’s legislature recently passed a bill that allows the state’s attorney general to seek a court order removing any local prosecutor who “peremptorily and categorically” refuses to prosecute certain criminal offenses regardless of the facts.

Dobbs Introduces More Controversy

The U.S. Supreme Court decision in Dobbs v. Jackson has supercharged (and complicated) the debate, as state lawmakers now confront local prosecutors who have pledged not to prosecute women and doctors who violate the plethora of new state laws restricting abortion. Immediately upon the decision in Dobbs, 89 district attorneys and attorneys general published a joint letter declining to prosecute people who “seek, provide, or support” abortions. Many of the signers were from states where access to abortion is already protected. But it also included local prosecutors from places like Orleans Parish, Louisiana, San Antonio, Texas, De Kalb County, Georgia, Jackson, Mississippi (home to the clinic that was the focus in Dobbs), and Nashville, Tennessee, all located in states controlled by abortion opponents. Their rationales differed. One prosecutor cited her office’s limited resources, stating that she will focus on “serious violent crime. . .  rather than potentially investigate women and doctors for medical decisions.” Others have emphasized their opposition to state policies that prohibit abortions under any circumstances.

Predictably, conservative state lawmakers have fought back. When Tampa Bay prosecutor Andrew Warren announced he would refrain from prosecuting women who violate Florida’s new 15-week ban on abortion, Governor Ron DeSantis went apoplectic, suspending the district attorney for a “blatant abuse of power.” Warren has since sued the state, alleging that his first amendment rights had been violated. Predicting the victor in this case is not easy. Florida law makes it easy for the governor, giving him removal power “for any . . . good and sufficient reason,” where “the ends of justice would be best served.” But with no actual case having been rejected by Warren, a court might conclude that the prosecutor is simply exercising protected speech.

Despite widespread consensus that local prosecutors have broad discretion in deciding which cases to prosecute and which to dismiss, virtually every state has laws that permit their removal by state officials. The process differs dramatically by state. In Alabama, all that is required is for the attorney general to deem removal to be “proper.” Similarly, Michigan case law states that the state’s attorney general can intervene “in any criminal proceedings in the state.” North Dakota allows “twenty-five taxpaying citizens” of a jurisdiction to request the attorney general to intervene. Kansas, Oklahoma, South Dakota, and Wisconsin allow their legislatures to direct the supersession of a local prosecutor.

State Law Vary

Other state laws impose greater hurdles to supersession. When Indianapolis District Attorney Ryan Mears stated his opposition to prosecuting abortion, the state’s Republican attorney general, Todd Rokita, grudgingly admitted that the General Assembly “has given prosecutors 100 percent discretion in filing criminal charges, including those regarding violations of Indiana abortion laws.” A similar situation exists in Texas, which has some of the strongest anti-abortion legislation in the country. A 2021 decision by Texas's highest criminal court found that the state’s attorney general is precluded from prosecuting criminal offenses without consent of the local district attorney. Hence, when the District Attorney of Dallas County, a jurisdiction of 2.6 million, joined colleagues from other large jurisdictions in stating that he would not pursue criminal charges related to abortion procedures, Attorney General Ken Paxton was left without an easy legal remedy. Instead, Republicans will have to wait for the 2023 legislative session, when they hope to pass a bill to allow district attorneys to prosecute abortion violations that occur outside of their jurisdictions.

Most state legislatures are not presently in session but expect considerable activity when they reconvene in January 2023. Much of it will involve political posturing, and crafting legislation will not be easy. The legal principles surrounding state preemption of prosecutorial discretion are thorny, issues are complex, and the stakes are high in this struggle between state lawmakers and the attorneys who are charged at the local level with enforcing the laws and protecting the public.

Prosecutorial Dilemmas

The prosecutor in our American legal system occupies a unique and powerful position. Many people believe that his or her role is to put people in jail. But while it is true that they work with law enforcement agencies to investigate and hold people accountable for violating the law, their primary role is to pursue justice. This is an ethical imperative of the job and something that distinguishes them from most others in the legal community. It requires them to exercise judgment at every stage of a case—from investigation and charging to adjudication and sentencing—all the while balancing a locality’s values, the principle of “equality under the law,” and an understanding of how his or her legal actions promotes accountability in a fair and equitable fashion. We can see this in the abortion context. With Roe now in the rearview mirror, many prosecutors are faced with draconian state laws that do not square with community standards. On the one hand, principles of the “rule of law” suggest enforcement of all statutes, independent of how objectionable they might be. If prosecutors decline to act, they risk criticism for becoming de facto policy makers, typically a legislative function. Yet a community only has so many resources, and discretion suggests independent judgment. To further complicate matters, is it proper for a prosecutor to announce in advance a decision to refrain from pressing any charges for certain categories of cases? For some, prosecutorial refusals that apply to entire categories of criminal charges or defendants are improper and illegitimate encroachments on legislative enactments. At the same time, announcing such a position in advance, which the 89 prosecutors did in their open letter about abortion, supports the notion of equality under the law, i.e., similar cases are all being treated the same. These are not easy issues to resolve.

Those who argue for easier supersession have similar dilemmas. The U.S. Supreme Court has consistently supported the concept of prosecutorial discretion, and various state supreme courts have held that state attorneys general are part of the executive, a branch of government distinct from district attorneys. This raises serious separation of powers issues. Should members of the executive be permitted to curtail the independence of prosecutors without their consent? For legislatures, the question is similar; should legislators be allowed to force an independently elected official from a separate branch to act contrary to what he or she defines as a constitutional duty or ethical imperative? Politics, of course, oozes into these deliberations, which makes them even harder to judge.

A Balanced Approach Standard

In the present political environment, these issues are not going away. And arguments suggesting that supersession makes no sense because prosecutors can always be removed by the voters are not sufficiently strong to prevent further efforts to restrain their authority. We should not expect state lawmakers to shy away from opportunities to score political points at the expense of prosecutorial discretion. All we can hope for is a better standard that recognizes supersession under certain circumstances but preserves the integrity of prosecutorial discretion. One commentator suggests that a reasonable approach is found in Pennsylvania, where statutes allow prosecutors to set their priorities and exercise their judgment but applies to them the same standard as is typically reserved for overruling the decision of a trial judge—the abuse of discretion. To invoke supersession, an attorney general must prove to a judge that a local attorney has “failed or refused to prosecute and such failure or refusal constitutes abuse of discretion.” Applying this standard in most states would better balance the exercise of prosecutorial discretion against the need for action in cases of misconduct and impropriety.

Our faith in democratic institutions has suffered greatly in recent years, partly due to the perception that they are being politicized for political gain. Any decision Merrick Garland makes will be greeted by partisan outcry; witness the remarks of House Republican Leader Kevin McCarthy threatening to investigate the Department of Justice and telling the attorney general to “clear your calendar.” But these ominous trends are also emerging in states, as lawmakers seek to overrule local prosecutors and their exercise of discretion over who and how they will prosecute. How these issues are resolved will affect how Americans view their criminal justice system in the decades ahead.

David J. Toscano is an attorney in Charlottesville, Virginia. He is a former Mayor and served 14 years in Virginia’s House of Delegates. He is the author of Fighting Political Gridlock: How States Shape Our Nation and Our Lives, University of Virginia Press, 2021, and Bellwether: Virginia’s Political Transformation, 2006-2020, Hamilton Books, 2022.

 

 

America's Own Present-Day Colonialism

As a law professor who begins every class (no matter the subject) with at least five minutes of discussion about what is happening in the world and our nation, I am struck by how recent student discussions about colonialism deride the British Empire but fail to recognize that the United States—now, today—is a colonialist empire.

America rules over and imposes second-class citizen status on five inhabited island territories in both the Atlantic and Pacific Oceans: Guam, the Commonwealth of the Northern Mariana Islands (CNMI), American Samoa, Puerto Rico and the U.S. Virgin Islands.

Everyone born in those territories (except for those in American Samoa) is an American citizen under the born-on-American-soil equals citizenship provision of the 14th Amendment of the U.S. Constitution. (“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”)

Each of the five territories has a non-voting (silent) delegate (or in Puerto Rico’s case, a resident commissioner) in the U.S. House of Representatives.  Recall that the U.S. Virgin Islands Delegate, Stacey Plaskett, was a House Manager, (a House prosecutor) on the second Trump impeachment proceeding in early 2021 (related to the insurrection at the capitol.) However, because she resided in a U.S. territory, and not a state, Plaskett, as a non-voting representative from the U.S. Virgin Islands, was barred from voting with other House members on whether and what impeachment charges should be sent to the Senate.

None of the U.S. territories has representation in the U.S. Senate and neither do they have any electors in the electoral college.  Only when the American citizens of Guam, the U.S. Virgin Islands, Puerto Rico, and those of the Commonwealth of the Northern Mariana Islands relocate to one of the 50 states can those island-born Americans vote for president - - even though each of the territories is listed on USA.gov, the official web portal of the United States federal government for states and territories.

Each of the five territories’ non-voting delegate (or commissioner) in the U.S. House has a “house.gov” website and a Washington, D.C. office (with other Congresspeople) at the Rayburn Building. Each territory’s house.gov website makes clear, to some degree, that the territories’ “head of state” is the President of the United States and that their territorial matters are overseen by an agency of the federal executive branch (Art. II of the Constitution) specifically, the U.S. Secretary of Interior and, more specifically, to the Office of Insular Affairs (OIA). With some estimates as high as 98 percent of the residents of the five inhabited territories being of minority descent, congressional oversight of the territories is tucked into committees which also oversee Indian Affairs.

This tacit emphasis on the skin color and ethnic origin of the people living in America’s territorial acquisitions took hold after America’s 1898 victory over Spain in the

Spanish-American War.  The 10 week-long conflict (what an American governmental official called a “splendid little war”) would help America catch-up to other nations of the world with empire building. America took from Spain such places as Puerto Rico and Guam, joining (at the dawn of the 20th century) the British and other European nations, in manifesting imperialistic dominance over far-away places on the globe.

The Spanish-American war whetted even more U.S. colonial expansion overseas.  Months after the war’s end, America also added American Samoa to its expanse of U.S. territories (secured from the Britain and Germany in 1899), and annexed Hawaii, where in 1893, American corporate interests (headed by a pineapple mogul named “Dole”) operating in Hawaii had forcibly removed Hawaii’s Queen and set up a white-male mainland-directed government on the Hawaiian lands.  America, in a sense of ironic foreshadowing of WW II, would use Hawaii’s Pearl Harbor in 1898 as a naval base to fight the Spanish in the Pacific theater.

According to U.S. State Department archives, for most of the 1800s leaders in Washington were concerned that Hawaii might become part of a European nation's empire so, America ultimately added Hawaii to its list of overseas territorial acquisitions. All of these territories -- whether by conquest or treaty -- would be places where the land acquisition’s inhabitants’ rights, living conditions, and quality of life would be determined by Congress in D.C.

Until the acquisitions from the Spanish-American War, America had had a systematic and methodical way of creating new states from existing territories based on both (i) Thomas Jefferson’s Northwest Ordinance of 1787 (which encouraged state-building and the admission of new states once a territory had sufficient inhabitants and a written governing document) and (ii) two provisions of Article IV, section 3 of the 1787 Philadelphia U.S. Constitution, specifically:

  1. a)     [section 3, clause 1] which gave the U.S. Congress the sole authority to admit new states into the Union.  (“New states may be admitted by the Congress into the Union” . . . with the consent of Congress”), the “equal footing doctrine”

and

  1. b)     [section 3, clause 2] which states that “Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or property of the United States,” the ownership of federal property clause.

All new U.S. states would have equal footing and equal rights as all other existing states. There would be no stepchildren states.  In the decade before the Spanish-American War (1888-1898) as the 19th century drew to a close, America followed its “all states have equal footing” doctrine and added North Dakota, South Dakota, Montana, and Washington State to the flag in 1889, as states 39 through 42, followed by Wyoming and Utah, 44 and 45 in 1890 and 1896, respectively.

But the anticipated progression from territory to statehood would stop as America, like its mother country, became an empire and extended its territorial reach in the Pacific and Atlantic Oceans.

The federal courts, starting in 1901, gave America (and Congress, specifically) “legal cover” to treat overseas territories differently from those of America’s contiguous land acquisitions.  The cases were even given an arguably pejorative name, “the Insular Cases” from the Latin “insula” meaning island, but in the day also meaning those with a primitive, isolated, or ignorant world-view.

The U.S. Supreme Court, in the case of Downes v. Bidwell (1901) addressed this solely new political question as to how the newly-acquired America territories of the American empire should be treated.

Were the new lands gathered into the American fold “as a result of a successful war” to be treated like the contiguous territories on the mainland or were they “insular” or backward possessions: “inhabited by different races, differing from us in religion, customs . . . modes of thought. . . [so much so that making] “the administration of justice according to Anglo-Saxon principles, . . . for a time [to] be impossible?”

The high court, in the Insular Cases, decided that these American territorial land acquisitions, as they were occupied by uncivilized “alien races” and “savages” who were “ignorant and lawless,” would be given a new status. They would be called “unincorporated” territories where the U.S. Constitution would not be fully followed or incorporated on those lands. These “backward places” would not be on a path to eventual statehood (like the contiguous state territories) and no one in these places could claim the rights of other states and territories.

The Supreme Court’s conclusion? The federal government would be permitted to “rule” Puerto Rico and other territories, largely without regard to the Constitution.

These cases from the 1900s are still good law today, and have been cited as precedent by the U.S. Supreme Court. This occurred as recently as April 2022, when our top court, in

U.S. v. Vaello Madero, ruled that since Puerto Rico was not a state, but only an unincorporated territory, the 3.5 million residents there (even though born Americans), and those of the other inhabited U.S. territories, are properly and constitutionally denied Social Security disability benefits provided to Americans of the other 50 states.

While Hawaii, which had extensive mainland-directed business interests, was granted statehood by Congress in 1959 (with a U.S. Senate vote or 75 (for) and 15 (against) and yes votes of 323 to 89 no votes in the House of Representatives), there was no similar effort on Puerto Rico’s behalf.  This was even though (in addition to Hawaii) other North American land acquisitions became states (Oklahoma, New Mexico, Arizona and Alaska) after Puerto Rico was taken from the Spanish.

That all born in the American island territories in 2022 can acquire American passports (so too with American Samoans although the word “national” is stamped onto their passports instead of the word “citizen”) and live in places where English is the primary language, the U.S. dollar is the currency, and where some of these places have higher rates of military service than those of the 50 states (with American Samoa having had the highest rate of military service enrollment than any other state or U.S. territory, and like Guam, where a significant percentage of the adult population has served in the military) does not obviate the deprivations and differences that American territories face when compared with U.S. states.

These deficiencies include substandard medical care, deficient broadband and wi-fi access, and substandard infrastructure for things like buildings, roads, bridges and drinking water.

And these deficiencies have been revealed to the world, last month, in the aftermath of Hurricane Fiona (a Category 1 storm).

Fiona resulted in catastrophic tropical storm warnings to U.S. territorial acquisitions of the U.S. Virgin Islands and Puerto Rico, and left practically all of Puerto Rico without electrical power.

Being a territory and not a state, has meant that FEMA funds (from the Federal Emergency Management Agency, America’s first responders to natural disasters on American soil) are slow to materialize.

Puerto Rico still has not recovered from 2017’s Hurricane Maria; millions of Americans there lost power and thousands died. FEMA, thereafter, issued an “after-action” report, admitting culpability in creating a humanitarian disaster in the U.S. territory replete with supply shortages and an inability to coordinate logistics with on-the-ground personnel.

And although President Biden, announced on September 22, 2022, that FEMA funds will be headed to Puerto Rico in the wake of Hurricane Fiona, there needs to be more to elevate our sister-territories to state-status, or, at a minimum, provide full access to the privileges of U.S. citizenship to residents of our territories.

The U.S. House of Representatives (non-voting) Delegate to the U.S. Virgin Islands, the Honorable Stacey Plaskett, on her twitter feed last month, best encapsulated the needs of the U.S. territories: “So now that Queen Elizabeth has been laid to rest, can American news networks focus on the devastation in the (ALL CAPS) AMERICA location of Puerto Rico.”

Here are two more actions the U.S. Supreme Court and Congress should take.

To our highest court: overrule the Insular Cases. When Justice Neil Gorsuch, in April 2022, upheld the denial of federal disability benefits to residents of Puerto Rico, he explained in his Vaello Madero concurrence, that he did so because “no party [to the litigation] ask[ed] us to overrule the Insular Cases.” Those cases, he said, were the product of bigotry and have no founding or support in the original words of the U.S. Constitution. The justice wrote, "[n]othing [in the U.S. Constitution] authorizes judges to engage in the sordid business of segregating territories and the people who live in them on the basis of race, ethnicity, or religion.”

And to the Congress: Nothing in the post-Civil War U.S. Constitution authorizes your continued complicity in denying rights to Americans of our current colonial territories. Make the U.S. territories (like Puerto Rico) states.

Rectify, finally, the second-class status that has, in large measure, circumscribed the lives of over 3.5 million people - - far from the mainland who call America home.

An Office You Cannot Afford to Ignore on Your Ballot

This is the eighth and final piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. You can find all the pieces in the series here.

Many things are at the top of mind for voters heading to the polls and filling out their mail-in ballots this year: abortion and health care, climate change, racial justice, gun violence, safety in schools, LGBTQ+ rights, workers’ rights, and threats to democracy. But many people bypass a race on the ballot in most states that can make a big difference on all of these issues.  Many voters are not familiar with this office, know who the candidates for it are, or how to decide who among them is best suited to the job. So, they opt not to vote for anyone for this important office. The office is state attorney general, and the 33 races for attorney general across the country are too important for voters to ignore.

The Basics

As the state’s chief legal officer, the attorney general defends and initiates lawsuits involving the state, its officers, and agencies, and the constitutionality of its laws. With broad jurisdiction and independence to act, state attorneys general play a crucial role in upholding the rule of law and protecting the rights, health, and safety of their states’ residents. The specific responsibilities of state attorneys general can vary state to state. For instance, their authority to prosecute crimes vary widely and are often limited. But in many states, they are and can be leaders on state criminal legal policy. The state attorney general can also advocate for policy changes with their positions in litigation and in Attorney General Opinions. And as a high-level government official, the state attorney general has a bully pulpit that can be used to either promote positive change or support unjust, regressive policies and laws.

Beyond the Basics

Here’s the bottom line: Just laws that protect consumers, ensure equal treatment, clean air, and safe communities are only as good as the state attorney general enforcing them. State attorneys general can choose to focus on protecting those accessing and providing reproductive health care, enforcing civil rights, workers’ rights, voting rights, environmental and consumer protections, and defending measures aimed at reducing gun violence. Or they can choose to undermine those rights and protections, and let workers, consumers, and all state residents fend for themselves.

We saw the difference that a state attorney general can make during the last Supreme Court term. The case that overturned Roe v. Wade, Dobbs v. Jackson Women’s Health, was brought to the Court and argued by Mississippi’s state attorney general. On the other hand, state attorneys general from two dozen other states filed an amicus brief urging the Court to uphold the federal constitutional right to abortion. In West Virginia v. EPA, two states’ attorneys general successfully challenged the Environmental Protection Agency’s authority under the Clean Air Act to regulate carbon-dioxide emissions from powerplants, while other states’ attorneys general supported the EPA’s authority to address climate change. Finally, in New York State Rifle and Pistol Association v. Bruen, the New York Attorney General defended the state’s 100+ year gun control regulations, while attorneys general from other distant states argued that those regulations should be invalidated. Next term, state attorneys general are again involved in prominent cases that could dramatically change voting rights in this country, and whether universities can consider race in admissions to ensure that their student body is diverse.

State attorneys general frequently appear before the Supreme Court, representing their states as parties and amici. Their arguments help shape the law and make a difference in our everyday lives. Voters must consider this important work when they have the opportunity to elect the person who will be making these arguments.

Stark Differences that Make a Difference in Our Everyday Lives

The candidates on the ballot for state attorney general frequently present stark differences in what they believe the rule of law is and whom it should protect. Those differences are apparent outside of Supreme Court litigation, in the ordinary state-level work of state attorneys general, and they can be seen in all areas of the law—from how public lands should be used or protected to which consumer protection violations to investigate and prosecute. Where one attorney general seeks more robust enforcement of state civil rights protections and works to overturn wrongful convictions, a different person in the same office will change course entirely. Some candidates have vastly different views on the legitimacy of elections themselves, with some of them openly embracing “The Big Lie,” denying the legitimacy of the 2020 presidential election, while other candidates have fought to protect the will of voters in that election.

A state attorney general candidate’s positions on state and national issues can help inform voters how they would use the resources of the office to engage in affirmative litigation and policymaking, and which state laws, officials, and agencies the candidate would focus on defending and how. Voters must learn more about the candidates before casting their ballots because state attorneys general have tremendous impact on their states, our civil rights, and our lives.

Your Vote for State Attorney General Matters

It is crucial for voters to understand what is at stake in state attorney general races. These races have implications for reproductive rights, civil rights in the workplace, health care and housing, the right to marry the person you love, and whether our voting rights are protected. In sum, most issues that voters care about are implicated in the race for state attorney general. This year, voters in 33 states and territories have a say in who fills this important role, and they must seize the opportunity.

Learn more about the role of state attorneys generals here and here. And please spread the word in your communities and encourage your family, friends, and neighbors to research the candidates and vote for their state’s attorney general and help ensure that the person holding this statewide office is committed to upholding the rule of law and civil rights, and using the law to improve the lives of all people. The office of the attorney general matters, and every vote for the office matters.

Valerie M. Nannery leads the State Attorneys General Project at the American Constitution Society. She previously served as Assistant Attorney General in the Public Advocacy Division of the Office of the Attorney General for the District of Columbia.

Why Americans are Losing Faith in the Supreme Court and Why That’s a Good Thing

On September 1, Pew Research reported that “Americans’ ratings of the Supreme Court are now as negative as – and more politically polarized than – at any point in more than three decades of polling on the nation’s highest court.” This is not a major surprise after a term in which the Court declared itself an active combatant in almost every front of the culture war: abortion, guns, religious liberty, and, soon, affirmative action. Indeed, as a foreigner who has taught constitutional law in the United States since 2018, I have always been more surprised by the Court’s persistent popularity, especially among progressives.

This puzzlement does not stem from the view that the Court is partisan, but that it is – even at the best of times – fairly conservative. If this analysis is correct, then waning public – and progressive – faith in the Supreme Court shouldn’t be feared, but welcomed as a healthy recognition of reality.

The Myth of the Warren Court

Why have progressives placed so much confidence in an institution that rarely advances their interests? The most obvious answer is a rebuttal: the Court has advanced their interests in the past, but it has been led astray by cynical Republicans who have used every dirty trick in the book to pack it with disciples of the Federalist Society.

Arguments like these usually make some reference to the lost legacy of the “Warren Court,” led by Chief Justice Earl Warren between 1953 and 1969. This Court could boast an extraordinary list of landmark cases, on issues ranging from school desegregation and redistricting to the right to counsel and police interrogations. The Warren Court was, according to the LA Times, “in the vanguard of social change.”

However, many of the Warren Court’s landmark cases nudged along or ratified social change that was already in motion. A good example is Gideon v. Wainwright (1963), which required all states to provide attorneys for defendants in criminal cases. Gideon handed a rare victory to a poor man who handwrote his petition to the Supreme Court from a miserable Florida prison cell; it also handed journalists and movie-makers the perfect story of an unlikely hero and a progressive Supreme Court dedicated to the principle of equal justice before the law.

Appealing though this story is, it overlooks the fact that Gideon was supported by twenty-three amicus briefs from state attorneys general and that thirty-five states had already guaranteed a right to counsel in all felony cases. Florida was an outlier and the Court was dragging it into line with prevailing national standards.

The Court was doing the same to the Old South in Brown v. Board of Education. Brown carefully avoided making arguments about unequal educational funding, which would have had national consequences, and the Justice Department supported desegregation because overt racial discrimination was embarrassing the United States on the international stage. Despite its caution and conservativism, Brown brutally exposed the limits of the Court’s power, as coordinated Southern resistance effectively nullified the decision until Congress passed the 1964 Civil Rights Act.

Finally, the Warren Court’s so-called “revolution” in criminal procedure was exaggerated by critics and supporters alike. The most controversial decision of this “revolution” was Miranda v. Arizona (1966), which excluded from criminal trials voluntary confessions that were obtained before defendants were informed of their constitutional rights. Miranda was politically explosive in the 1960s – as conservative legislators accused the Warren Court of taking the handcuffs off the criminals and putting them on the police – but police departments across the country soon realized that the post-Miranda world had its perks. Before, the line between a coerced and a voluntary confession was murky; now, it was clarified by the Miranda requirements, which rejected the American Civil Liberties Union’s more forceful call for lawyers to be present during all police interrogations. A conservative Supreme Court reaffirmed Miranda in 2000.

I would not claim that the Warren Court was overrated or that, in Gerald Rosenberg’s words, it provided only a “Hollow Hope” for social change through judicial action. But the Warren Court was wary of moving too far, too fast, and it undoubtedly relied on allies in the elected branches. It shows us what the Court can do as a junior partner in a progressive coalition – not what it can do as final protector of our constitutional rights and liberties.

Roe v. Wade and the Illusion of a Progressive Supreme Court

Still, the Warren Court attracts so much attention from progressives because it was unusually progressive. Prior to this era, it was conventional wisdom on the left that the Court – and indeed the entire federal judiciary – was stubbornly conservative. It had given aid and comfort to the Southern slaveocracy and its remnants before and after the Civil War; it had elevated “liberty of contract” above reasonable workplace regulations in the early 20th Century; and it had obstructed the New Deal in the 1930s.

Since the Warren era, the Court has largely reverted back to this default conservative setting. After its traumatic confrontation with the Roosevelt Administration over the New Deal, it has been squeamish about interfering with Congress’s commerce powers, but it has chipped away at the criminal procedure “revolution,” gutted the Voting Rights Act, and invalidated bipartisan campaign finance legislation.

There were some exceptions to this conservative restoration, usually enabled by the occasional liberalism of Anthony Kennedy. But the biggest exception, by far, was Roe v. Wade, decided four years after Earl Warren’s resignation. Roe, which swept away the abortion laws of almost every state in the union and created a new constitutional right to abortion, became an enduring symbol of the Supreme Court’s progressive potential, even though progressives struggled to defend its original rationale.

Now that Roe is gone, the illusion of a progressive Supreme Court seems to be slipping away, too. Amid all the pain that the end of Roe will cause, the end of this illusion is a positive development. In many areas, progressives have already turned away from the cul-de-sac of the Court and channeled their energy into an impressive variety of popular strategies.

A good example is capital punishment. In 1976, the Supreme Court backed down from a 1972 decision that effectively suspended the death penalty nationwide, and, although the Court remained willing to curb the death penalty in specific cases, the prospect of judicial abolition has been obviously impossible for at least four decades.

However, if anything, the abolition movement has only gained momentum. Last year, Virginia became the twenty-third state to eliminate capital punishment (twenty-six if we count the three – California, Oregon, and Pennsylvania – with moratoriums imposed by their governors). Executions have been in constant decline across the country since the 1990s, and federal executions had effectively ground to a halt until the vicious lame-duck killing spree carried out by the Trump Administration in late 2020 and early 2021.

As New Hampshire representative Renny Cushing recalled in a 2021 interview with the Broken Law podcast, the campaign to abolish the death penalty in his state was long, tiring, and required collaboration with the victims of capital crimes as well as the perpetrators. But, regardless of whether the institutional mechanism is legislative repeal, executive action, or state constitutional amendment, the abolition movement has achieved similar victories all over the country.

Despite the recent success of abortion rights activists in Kansas, it would be naïve to expect a cascade of popular victories for progressives in state politics. We know too well that state legislatures, in particular, can be tough nuts to crack – stubborn, gerrymandered, and unrepresentative. Nevertheless, the history of the death penalty shows that they can, eventually, be moved, while ballot initiatives, state courts, and – yes, let’s not forget – the U.S. Congress offer alternative avenues for advocacy. Finally, the protests against police brutality in the summer of 2020 (not to mention the original civil rights movement) demonstrated how all of these formal institutions could be shaken up (if not instantly reformed) by riskier and more confrontational tactics in the public sphere.

On big constitutional questions – especially abortion – the Supreme Court has now said that “The People,” not the judiciary, should decide. This call may be disingenuous. After all, the Roberts Court has also shown a taste for judicial activism when elected bodies do things that it doesn’t like. But, for now, progressives should call the Court’s bluff and make use of their large toolkit for action at the local, state, and federal levels. Although this won’t build a better society overnight, at least it won’t be a waste of time.

Harry Blain is an Assistant Professor of Political Science at California State University, Sacramento. He has taught undergraduate courses in California and New York on constitutional rights and liberties, separation of powers, the U.S. Congress, social movements, and international security. Follow him on Twitter @HBlain.  

Hispanic Dreams are the American Dream

This is the seventh piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. You can find additional resources, news, and information about the State Attorney General Project here.

I was raised in the rural Northern New Mexican village of Wagon Mound, a town with a population of 256, where my mother and brother still reside. It is a beautifully unique community, in a beautifully unique state, where our state question is whether you would like red or green chile (with an e) on your meal, and where we are a majority minority Hispanic population among a plethora of culturally diverse communities. It is also a community that, like its state, faces every struggle imaginable, from intergenerational poverty and trauma, to prevalent substance misuse and lack of educational and economic opportunity. A Norteño at heart, I grew up on food stamps and in public housing, in a community that this country too often forgets, and developed a deep conviction that everyone deserves the same opportunities to succeed, regardless of background. From the beautiful struggles of that community, I emerged with a fire and a passion to not only provide for my family, but to bring Hispanic communities everywhere with me. Much like our Latino families from all across the world who risk everything to cross borders to provide a better future for themselves and their families, as the youngest Hispanic statewide elected official in the nation at 33, I know the fear and the insecurity that comes with chasing the American Dream.

What is the American Dream for Hispanic and Latino Families Today?

Having served the State of New Mexico in elected positions for 18 years, now as Attorney General, and in the current political and cultural environments we find ourselves in America, I find myself wondering just what the American Dream means today. In my heart, I believe it is what it has always been—the opportunity to prosper and make a better life for your family. Unfortunately, our dream has always come with a struggle—barriers set up by those who want to pick and choose who gets that opportunity. Nevertheless, those who have been held back from their pursuit of this dream have always persisted, and still do. The time has never been more urgent for us to reject any attempt to smother someone’s dream because of who they are; and we must shoulder the burden of any barrier that is put in their way.

As the Hispanic and Latino population reshapes our country’s demographics in the coming decades, we must continue to do the work to make sure that we are adequately represented in positions of leadership in every boardroom, executive suite, and elected office in the nation. This work has been going on for decades, but the response from the current shrinking majority has been slow at best, and the reality I describe should already exist, yesterday. The reality is that the response, and the restrictive barriers that have come with it, are based on historical fears and misconceptions about Hispanic and Latino culture, a culture that well predates the era of the Statue of Liberty and the era of Zoot Suit Riots, and which sadly continue to persist today. Deliberate distortions, such as Hispanics and Latinos are a drain on the economy, or that we are all immigrants who do not speak English, not only erase our humanity, but they willfully ignore our massive contribution to the fabric of America. My grandfather was a decorated war hero in World War II, yet I still witness marginalization that leaves Hispanic and Latino voices often ignored and silenced in our communities, despite the reality that we are the America in the American Dream, and I am merely one example of how this will change.

Hispanic and Latino values are synonymous with the values of this country—we believe in family, hard work, and supporting all of our communities. We are multiskilled, multilingual, educated, and now more than ever are in a position to change the politics of America to reflect the reality of our presence, our identity as Americans, and to help the country grow stronger than it is today. Despite paying lip service to notions of diversity and inclusion, American institutions still fail dramatically at actually changing to adapt to our reality, but the time is now for Hispanic and Latino leaders to finish the work that has gone on for decades, and to tear down any wall that stops our families and our communities from meaningful participation and achievement of the American Dream.

Breaking Barriers for Future Generations

I have put this identity and perspective into every aspect of my work as an elected official. As Attorney General, I have fought to protect DACA recipients—most of whom are Latino and who came to our country when they were children by no choice of their own, who are now members of our military, teachers, doctors, and healthcare workers serving our communities. I have also fought for humane border policies that prioritize public safety; and I have held accountable private businesses like predatory lenders and for-profit educational institutions that prey on Hispanic and Latino people who are trying to make a better life for themselves and their families. Through this work, my office, and others across the country, has worked tirelessly to provide safe communities for Hispanic and Latino families so that they can truly prosper.

Of course, this work continues, and will continue—I know that as a Hispanic leader, I will not stop serving all of our communities until reality reflects our dreams. I am proud of who I am and where I come from; and I hope that my experience will pave the way for kids who look like me and grew up like me to achieve things I could never imagine. I know they will. I know it because our people are beautifully resilient, smart, passionate, hardworking, and again, we are the American in the American Dream.

Hector Balderas was elected the 31st Attorney General for the State of New Mexico in 2014. He previously served as the New Mexico State Auditor, State Representative, and Bernalillo County Assistant District Attorney. Learn more about Attorney General Balderas and follow him on Twitter @HectorBalderas.