The Problem with Privilege

I had been thinking of writing this post for a while, but I had kind of lost momentum and figured I wasn't ever going to get around to it. Then I saw this tweet:

BLM is just as peaceful as the #WomensMarch — only difference is cops aren't as willing to jump white women. Acknowledge privilege

— Amy Dentata (@AmyDentata) January 22, 2017

Here's the thing about this tweet, which is responding to the astonishing fact that at the Women's Marches yesterday, which featured four or as many as five million people protesting Donald Trump all across the country (and the world), there was absolutely zero violence, and there appear to have been zero arrests. The first sentence is absolutely true! It's true in every dimension, and it's important.

So why do the last two words rub me the wrong way so much?

I think it's because the word "privilege," as it has come to be used, carries with it a connotation of wrongfulness. But in this case it is obvious that the "privilege" enjoyed by the "white women" (who were, of course, only part of the crowds at these protests) of not being "jumped" by the police while protesting peacefully is entirely rightful. It is a privilege against wrongful treatment, one which we should all by rights enjoy. The correct remedy is not to abolish the privilege but to extend it universally; in a good world, peaceful BLM protesters wouldn't get arrested either. (Of course in a good world BLM wouldn't have to exist, but you get the point.)

This is, I think, a general fact about a whole lot of kinds of "privilege." The way privileged people are treated is the way people ought to be treated, period. A video will surface of a white man brandishing a gun at the police and being carefully subdued without a shot's being fired. We all know that this is an example of "white privilege," and it really is! A black man behaving similarly would have been dead within seconds. But the problem here is not with how the privileged white guy is being treated, it's with how the oppressed black men—and boys, and women and girls—are treated. Those of us who are privileged are, in most cases, simply being treated the way we deserve. We should all be so privileged; the horror is that so many are not.

And I'm speculating here, but I suspect this has something to do with the cocktail of grievances and resentments that fueled Donald Trump's support. Because very often, privilege does not really benefit the privileged; oppression does not really benefit the oppressor. Sometimes it does, of course. White supremacy and white privilege are among other things concerned with the distribution of scarce material resources, and the more those resources are plundered from black people the more plunder there is for white people to enjoy. Affirmative action in college admissions, for instance, has this zero-sum dynamic.* But potentially-fatal police encounters are not zero-sum. The police really could treat everyone they meet and have occasion to consider shooting the way they treat white people in that position, and doing so would benefit a whole lot of black people without taking anything from white people to do it. Oppression in these contexts is, in other words, negative-sum. It may even be, like, a bizarro version of Pareto efficient, making some people worse off and no one better off.

And so I suspect that this is part of why it rubs some people so much the wrong way to be constantly told how privileged they are. Because after all, doesn't that make it sound like they lead lives free of woe and strife? They are, after all, privileged! But of course that's not true at all. In so many cases their privilege does nothing real to benefit them, not against the baseline of rightful treatment, of what should happen. And they may have other troubles; they may even partake of other forms of oppression, e.g. along class lines. They feel in other words that their lives are hard, and are no less hard than they should be because they are write. And they're right! White men may be playing the game of life on the "easy" level of difficulty, but there's nothing really wrong with that in most cases. We liberals, who have fought for centuries to make the world a better place, are huge fans of the "easy" mode. We created it, and it is our mission to extend its bounty.

But of course these people, who are told that they are privileged and who cannot square that with their own experience and the difficulties they face in their lives, do exactly the wrong thing with the fact that their privilege does not really help them all that much. They lash out. They want to punish those who accuse them of the horrible wickedness that is being privileged, and in doing so of course they become not just privileged but defenders of privilege, not just people who benefit from racism but actual racists themselves. And to be clear, that is overwhelmingly their own fault. It's entirely their own fault, really, on any sort of moral level. Culpability for racism lies with the racists.

But we lawyers (and I am, as of a couple days ago, a lawyer) distinguish between causation and fault; the one is a subset of the other. And though it is not our fault, those of us on the left, that there are so many goddamn racists, we should probably find any way we can to reduce the number of things factually contributing to the existence of so many goddamn racists. And I suspect, though again this is extremely speculative, that this thing about the "privilege" analytical framework is part of that factual causal problem. Certainly the practice of demanding that people acknowledge their privilege, or "check" their privilege, feels almost perfectly calculated to arouse defensiveness and resentment. I suspect that the better form of outreach to these people would be to say, look, we know you're hard-working, ordinary people just trying to do your best to live a decent life. All we want is for so many of these other people to have the same chance at that that you do, which they unfortunately and unjustly do not, and for you to understand that these other people aren't as lucky as you are and to have sympathy with their struggle to obtain the "privileges" that you so rightfully enjoy. I bet that message, which I think was in large part Barack Obama's message, would piss off a whole lot fewer people.

Again, it is not our job, on any accounting of justice or responsibility, to avoid pissing these people off. It is rather their job to stop being racist. But far too many of them aren't going to do their job, and so unfortunately those of us who do care about making the world a better place for everyone, and especially for the racial minorities and other oppressed groups whose interests a powerful politics of racial resentment so threatens, are faced with a choice between trying to save people from their own goddamn racism and accepting a world with all these goddamn racists. If we're going to try to do the former, which we probably should (though it is such an aggravating enterprise and the impulse is so often to rage-quit), I feel like we'll be better served with a narrative of privilege that is less accusatory and that, where appropriate, recognizes that oppression benefits not the oppressor and that the only problem with privilege is its absence from too many people's lives.



*Of course, things like affirmative action are zero-sum only if you just take their immediate material effects at face value. I suspect that in even in these cases oppression harms the oppressor, by depriving society as a whole of the bounty which the oppressed would have produced had they been given the opportunity. This relates to the arguments for why e.g. sex discrimination in hiring practices are inefficient and irrational. Obviously the conclusion sometimes forced upon those arguments, that employers, being rational, will therefore not discriminate and so there's no need for anti-discrimination law, is a load of bull, but that doesn't mean the discrimination isn't economically irrational. (Corporate boards with more women on them perform better, etc.) And when those oppressed people are prevented from realizing their full potential, society is impoverished and that harms the oppressor class, too.

Even in cases where the raw material math works out such that the oppressors are coming out ahead, though, I still think oppression and supremacy are worse for the supreme oppressor class than equality would be. As my grandfather once said, in his masterful article defending Brown v. Board of Education:

I can heartily concur in the judgment that segregation harms the white as much as it does the Negro. Sadism rots the policeman; the suppressor of thought loses light; the community that forms into a mob, and goes down and dominates a trial, may wound itself beyond all healing.

This was a man who knew whereof he spoke, having grown up as a white man in segregated Texas. Oppression largely offers the oppressors only false promises. In exchange for some small amount of plunder taken directly from the oppressed they impoverish their own society and, on top of that, poison, perhaps irreparably, their own personal and political morality.

And of course the very next line of the same paragraph could not be more on-point:

Can this reciprocity of hurt, this fated mutuality that inheres in all inflicted wrong, serve to validate the wrong itself?

Bernie Sanders, Continued

Just a brief follow-up to my last post about Bernie Sanders. I suggested there that you need to take on forces like white supremacy and the patriarchy before you can have the kinds of economic reforms Sanders wants to have. That's not quite right; it's not really a strict chronological thing. Which is good, because the fight against white supremacy, the fight against patriarchy: these aren't really fights you win. They're fights you fight, forever if need be. If we can't have progress until those fights are won, well, we'll all be dead before we have any progress. And of course we had things like the Affordable Care Act and Dodd-Frank without vanquishing racism or whatever.

But I do think it's important to understand the fight, and to understand that these seemingly economic fights are also the fight against these various more cultural forms of oppression. And it just occurs to me--indeed, this is the impetus for this post--that not understanding this is what leads an awful lot of Democrats, apparently Sanders among them, to be just dumbfounded as to why poor white people vote Republican. Don't they know it's against their own interests?!? Well, no, maybe because they have a different conception of those interests. This is the Southern Strategy, and it's hardly the fraud Democrats often like to make it out as when we recognize that white Southerns really, really care (many of them, at least) about white supremacy, at least in its relatively more genteel modern forms. Our instinct is to just keep repeating how much better off they'll be economically under our policies, and I think that's probably a big mistake.

I don't know exactly how you fight this fight when you understand it better. Maybe you just recognize that the opposing side is in a long-term demographic decline and content yourself with beating them. I have a feeling this country won't really become the America that it's supposed to be until we actually manage to do something about the whole "white people are awful" thing, though, even if there stop being enough terrible white people to form a viable political party. In any event the demographic decline doesn't really address the sex equality stuff. What I do know, or at least what I believe, is that you can't fight it at all if you don't understand it, and you'll find yourself losing other fights you really just can't fathom why you didn't win.

On the Hyde Amendment, Single-Payer, Bernie Sanders, and Socialism

Hillary Clinton recently called for repealing the Hyde Amendment, the federal law which prohibits federal funds from being spent on abortion. That is, among other things, surprisingly radical for a candidate most known for her cautious, calculating, pragmatic manner. It's also interesting because Bernie Sanders, the generally more radical candidate opposing her, has not, to the best of anyone's knowledge, come out in favor of repealing the Hyde Amendment. Which is funny, when you think about it, because Sanders is thoroughly pro-choice, and of course is most notorious these days for his proposed single-payer health care system. In which the federal government would pay for all the health care.

But if the Hyde Amendment is still around, then that won't include abortion.

At best this would lead to a market for supplemental abortion insurance, or just to women paying for abortion out of pocket. That's the at-best scenario, and it's pretty much a nightmare from a reproductive rights perspective. The worst-case scenario would be if private insurance, and maybe even private out-of-pocket purchase of medical treatment, were actually outlawed, which would effectively outlaw abortion itself. (That would almost certainly be unconstitutional under current doctrine, certainly as to abortion and maybe more generally.)

So, the first thing to say about all this is that someone needs to ask Bernie Sanders about the Hyde Amendment. Like, yesterday. But that's not really the crux of the issue: he'll almost certainly say he supports repealing it. He assuredly does support it on the merits, and there's no great political loss to admitting it.

The deeper issue, I think, is what it says about him that he didn't think of this when he was drafting his proposal. Because, it's a big issue. In a single-payer system, every aspect of medical treatment is subject to intense politicization, and this is a country where that could get seriously problematic, very fast. This is actually one of the virtues of the liberal-capitalist order: it's very good at letting people decide what they want for themselves, and having there be people willing to give it to them (so long as they can afford it--aye, there's the rub), even if other people aren't too happy about that. Single-payer, even if it allowed private insurance around the margins, would complicate that happy "live and let live (if you're not poor)" picture a lot. That doesn't mean it wouldn't be worth doing; that "if you're not poor" part is a really big problem. But it's not just a fantasy issue. It's a genuine cost to achieving an awful lot of good, and Sanders shows no sign of recognizing that it must be paid. This is for me the big issue with the fact that, at certain points in the past, he wanted to let the states administer the new single-payer system. Really, Bernie Sanders? An awful lot of states would make decisions about what should and should not be covered that you would really not like. He's backed off that position for now, but the lack of attention to the analogous issues at the federal level, e.g. the Hyde Amendment, doesn't give me a ton of confidence that he understands the real problem here, or has good ideas for what to do about it.

And then of course there's just the fact that the politicization of medicine would add an entirely different dimension to the fight. Paul Krugman has been talking a bunch lately about how it's tough to get a single-payer system from where we are because it really would impose losses on a bunch of important stakeholders. Well, once you remember that the Hyde Amendment exists we've got a whole other fight on our hands. There's been controversy in recent years about requiring employers to provide insurance that covers contraceptives. Imagine the explosion that would ensue if we proposed to have the federal government cover the full cost of abortions for everyone. Which is not to say that we shouldn't do it! We should, in an ideal world. This is a fight that deserves to be won. That's slightly different, though, from saying that it would be won, or even that the victory would be worth the fight.* 

More to the point, perhaps, is that Sanders does not seem to anticipate that fight, or the others like it that would surely come. And this has me thinking about a recent Ta-Nehesi Coates article and its discussion of the view that Sanders and his ideological comrades have toward racial justice issues:

"[Sanders sees] black people not so much as a class specifically injured by white supremacy, but rather, as a group which magically suffers from disproportionate poverty.

This is the “class first” approach, originating in the myth that racism and socialism are necessarily incompatible."

My feeling about this is that it's almost the other way around. It's not that adopting socialism would make racism and its effects disappear. It's that racism itself, as a separate and distinct ideology, is a big part of what's stopping us from being more socialistic. There was some research, which I could probably dig up if I wanted to spend a bit of time on it, trying to figure out why, descriptively, causally, why the United States has such a meager welfare system. Ultimately the study concluded that it's all about race, or more specifically racism: American whites don't have solidarity with black people, and therefore resent having their wealth redistributed to black people in a way that middle-class Germans don't resent having their wealth given to poorer Germans. (Interestingly we can see a related phenomenon playing out in the European Union right now; it turns out the Germans and the French don't have that much solidarity with the Greeks after all, and therefore experience a similar resentment and a reluctance to support the much-poorer people of Greece.)

And similarly with issues of sex and gender. There's a lot about the social democratic agenda that is deeply threatening to the patriarchy, there really is. Just as there is with white supremacy. Someone like Sanders is right about that. But he seems to assume that this means we should focus our energy on attacking Capital (capitalized for sinister emphasis, of course), and that when we defeat it, all those identity-politics fights will take care of themselves. But I feel like if you don't appreciate the independent power of the patriarchy, of white supremacy, in American political life, then you won't appreciate the true nature of the struggle to make America better. And you'll lose. Because you'll rush headlong at the one enemy you're focused on and let yourself be surrounded by the other armies in their coalition. Better to attack each of those allies--whose support Capital needs but to whose defense Capital cannot necessarily come--in turn, and then leave the main enemy weakened and alone. But defeating white supremacy, defeating the patriarchy, that's a massive undertaking. It'll take years, decades really. Maybe generations. And it's not a fight that Bernie Sanders seems to see himself as fighting. Hillary Clinton does, if in an incremental way (though her opposition to the Hyde Amendment is impressively bold).

And that, I guess, is the socialist case for voting Hillary.



*Perhaps my favorite part of that fight would be the inevitable court case arguing that covering abortion in the single-payer system violated religious freedom. Because the logic there is damn near identical to the similar claims being made about mandated private insurance in a case like Hobby Lobby, but if we move it to the context of a government program then it becomes obviously absurd. There's no right to have the government not spend its money on things you disapprove of for religious reasons; that's absurd. We can tax you, and once we tax you it's not your money anymore. (The one exception is that we can't spend it actually supporting religious institutions you don't support, per the Establishment Clause.)

Two Points on Affirmative Action

Yesterday was the big affirmative action argument at the Supreme Court, with Fisher v. University of Texas being argued for the second time. It's long been suspected that the case could bring about the end of race-based affirmative action in America, anywhere within the ambit of the Fourteenth Amendment's "state action doctrine" at least. Not surprisingly, the oral arguments were rather high-profile, and some remarks by Justice Scalia have become especially controversial. I just have a couple of points I'd like to make, both about Scalia's comments and about those of one of his colleagues.

First, concerning Scalia, a discussion of whose remarks and the theory behind them you can find here. He was, in a rather clumsy way, invoking so-called "mismatch" theory, the idea that affirmative action ends up putting black students in schools that are too advanced for them. A sophisticated version of this analysis might focus on the fact that, as a result of unequal policies at various lower levels of the American education system, black people are in general not prepared as well for the rigors of elite universities. Scalia, of course, did not make the sophisticated version; his remarks seemed rather to suggest that black people are actually just not as smart as white people, and will therefore be overwhelmed by going to white people schools. 

One thing to say about this is that it's not true, as the Vox explainer makes clear. Anothre thing to say about it is that it's racist. But I'd like to go a little further on that last point: in a lot of ways, Scalia's remarks, and to a certain extent the broader "mismatch theory" on which they're based, were channeling the basic logic of educational segregation. Of course, the actual logic of segregation was that it was bad for black people and that this was good because white people should be kept in a position of social supremacy over black people. But the avowed logic, the "it's good for everyone" logic, would have been a lot like this. Black people, for whatever reason, whether their innate talents or a legacy of admittedly unfortunate discrimination, just aren't prepared to compete with white people on an equal basis. It wouldn't be fair to them to push everyone into integrated schools. They need separate but equal.

This isn't to say that Scalia favors segregation (though honestly, who among us really doubts that if Scalia had been around in 1954 he would've been condemning Brown v. Board of Education as a lawless judicial usurpation?). It's just to say that some of the logic and rhetoric behind the anti-affirmative action movement can very plausibly be seen as a slightly watered-down version of the arguments against racial integration in the first place.

My other comment concerns an offhanded remark from the Chief Justice. The supposed benefit of affirmative action, since just improving the status of the African-American community is apparently not good enough, is diversity, and specifically the idea that diversity on campus will be good for everyone. (Obviously, affirmative action is only okay if it benefits white people.) One of the ways in which the state of Texas was arguing that the diversity fostered by affirmative action was good for everyone was about the dynamic within individual classrooms. John Roberts was skeptical of this idea, and at one point asked the lawyer for the state, "What unique perspective does a minority student bring to a physics class?"

Mr. Chief Justice, may I humbly submit that a minority student brings to a physics class the perspective that black and Hispanic people are also, y'know, people, and might actually be smart, or have something to say about physics? A "perspective" that is too often lacking? Along with its close cousin, the "perspective" that women are also people and might actually be smart or have something to say about physics; lord knows that one's been all too absent from the classroom for ages. I've never had the opportunity to experience it directly, but my sister has, and my impression is that that feeling of being not welcome does an awful lot to discourage everyone other than white men from even trying to participate, or pursue a career in these fields. That probably has an awful lot to do with why the historically black colleges are so much better at producing black scientists. They are, to use the cliched term, a "safe space" for black people to pursue science. And unfortunately, an awful lot of science classrooms just aren't safe, in that way, because there are just so goddamn few black people or Hispanics or women or whatever already there.

You might think that, in something like math or physics, there would be no such thing as the "black perspective" or the "female perspective." You might especially think that if you really didn't have much sense of how to empathize with the plight of the oppressed. And in a way, you would be right. But it's a funny thing about science: insight can come from anyone. Even if there's no "black perspective" or "female perspective," an individual black person or woman might turn out to have an insight that could change the world, or at least be kind of interesting. And if the world is set up in such a way that they're all strongly discouraged from even bothering to try to contribute, that insight might be buried forever. Sort of like how there isn't a black way to hit a baseball, but Jackie Robinson was still damn good at it. And so was Josh Gibson, it's just that he never got the benefit of someone willing to say, hey, maybe we should give these guys a chance.

That Confederate Flag at the South Carolina Capitol is Unconstitutional

And all the streets named for Confederate generals, too.

Unconstitutional, you say? Surely not; how does a state flying some ol' flag violate anyone's constitutional rights? The answer is simple: it's about what it expresses, namely white supremacy. (People try to deny that. They have about the same success as people who try to deny global warming, evolution, or that the earth is round.) So now let's ask: are state governments allowed to express white supremacy? No! That's an easy one. Imagine if the South Carolina state legislature passed a resolution declaring the white race superior to the Negro race (and all the other ones), and that society ought to be run as a racial caste system with whites at the top and Negroes at the bottom. This wouldn't deprive any black people of any material goods or tangible rights, and yet I don't think it's all that radical to say that this would be unconstitutional. Or maybe it is, I don't know. But it seems obvious to me. I think the Fourteenth Amendment requires all states not merely to treat all of their citizens as equals but to believe that all of their citizens are equals. In practice this means they're not allowed to do anything that signifies or evinces a belief in the inferiority of some citizens, even if that thing has no tangible, non-expressive effects. And, y'know, I think it's about as safe to say that flying the Confederate flag in front of your state capitol expresses a belief in the inferiority of African-Americans as it is to say that imposing a scheme of comprehensive racial segregation expresses that belief. Hence the unconstitutionality thing. If someone wanted to sue South Carolina in federal court seeking an injunction ordering them to take the flag down, I would say without much doubt that the injunction should issue.

And the same is true in principle of all the Confederate-named streets. The only tricky part is that it's not as clear, like, at what point the street names become an endorsement of white supremacy. Calling U.S. Route 1 the "Jefferson Davis Highway" throughout much of the South is a pretty clear violation, but surely any ol' Davis St. or whatever isn't. And is the rule that there can never be any streets clearly named for prominent Confederate figures, or just that there shouldn't be too many of them? I dunno, and trying to adjudicate these sorts of claims might be a morass into which the courts would be wise not to venture, given the minimal tangible stakes. But the principle of the thing is the same. Any state "celebration" of its white supremacist history, and especially of its Confederate history, that does not in any way acknowledge and repudiate the deep evil of the Confederacy and of the ideology to which it was dedicated is itself a tacit expression of white supremacy and is hence unconstitutional.

White Male Victimization Makes Sense If You Think White Men Are Superior

Jonathan Chait has a nice little post slashing to tiny little bits the assertion by one Joseph Epstein that Barack Obama and, if she is elected, Hillary Clinton would be "affirmative-action Presidents." He notes that Epstein educes precisely zero evidence that Obama or Clinton are unqualified on the merits to be President, or especially that they are uniquely so in American history. Moreover, he notes that the period when Epstein thinks Presidents were chosen purely on the basis of merit just happened to produce 43 white men in a row, the last of whom was the son of a different President. Epstein's argument that these 43 men were elected because of their "intrinsic qualities" rather than on the basis of "accidents of [their] birth" is flatly absurd. Chait goes on to note that the general thrust of the piece, viz. that white men have become a "subaltern class," is hard to square with the fact that today's elite is still overwhelmingly comprised of white men. All of this is true.

Unless, of course, you believe that white men are categorically superior to people who aren't white men. Which, y'know, used to be a pretty mainstream position. "White supremacy" is not just the belief that white people ought to subjugate non-white people; it's the belief that white people are better than non-white people. Now, this belief is what we might, if we were being polite, call "demonstrably false," and if we were not being polite we might call "crazy." But that doesn't mean plenty of people don't still believe it. And if you have this belief, and the analogous, equally crazy belief vis-a-vis women (and mind you, the belief in its truest form isn't just that most white men are superior on the merits to most non-whites or non-men, it's that there's a categorical distinction between white men and others in terms of merit*), then the fact that any of the social elite aren't white men is evidence of a great big problem. Specifically it means that they must have attained their position through "social justice" and "victimization" politics, not through merit, because it is impossible that they have merit. If you believe in white supremacy as an axiomatic principle of reality, then Barack Obama is not, cannot be a counterexample that disproves white supremacy. He is still an inferior black person, and therefore something must be wrong with any system that allows him to be President. And when that system elected 43 white guys in a row beforehand, that was it functioning well, and on the basis of merit, since all the merit resides with the white guys.

So any time someone talks about how Obama or Clinton don't really deserve to be President, and are just "affirmative action" candidates, they're tipping you off to the fact that they are a good old-fashioned, totally unreconstructed bigot who really, truly believes that white men are superior to everyone else. Nice of them to let us know, really.



*Specifically the kind of merit that's required for things like holding public office or otherwise wielding power in society. Women are perfectly meritorious, for some things; those things just aren't being President, or anything remotely resembling being President. (...is what the crazy bigots, think, of course.)

Of Course Gangs Can Come Together More Easily Than the Parties

So I was just watching tonight's Nightly Show with Larry Wilmore and the panel (Dana Perino, Lewis Black, and some I think comedian that I didn't recognizing) were talking about a number of things but one of them was the truce between the different Baltimore gangs. And the way they were talking about this was, like, isn't it absurd how these gangs can come together but the Democrats and Republicans can't. And I was just thinking about how fundamentally wrong an understanding of politics such talk reveals. Because, like, of course! Lewis Black was saying something about how, like, these gangs, they want to kill each other, literally kill each other, and the Democrats and Republicans are just talking ideology, or whatever. But that's the thing: wanting to kill one another is way less insoluble a conflict than genuine ideological disagreement. The Crypts and the Bloods or whatever don't have any very serious disagreements about what the world should be like, except that one of them thinks the Crypts should be in power and the other think the Bloods should. They're just rivals, each striving for the same position and hence coming into (violent) conflict with one another. Democrats and Republicans, on the other hand, have the genuine moral belief that the things the other side wants to do with power, should they achieve it, would be terrible things that would make the world a much worse place. And so the truth is that it's a hell of a lot easier to compromise over an actual blood feud (or whatever exactly the divisions between gangs are) than over an ideological disagreement, especially when there's some sense of a common higher good that comes along. Like, all the different gangs are made up of people with a fairly similar political worldview, viz. the basically liberal view of race in America, and so when the city they've been fighting over suddenly gets caught up in this broader battle about race in America, well, suddenly their little struggle for power doesn't seem so important anymore, and they'll all agree on this. The Crypts think it's more important to work toward racial peace and justice than to fight for control of Baltimore, and the Bloods don't respond by being like, "oh hey, that's an opening for us to take over Baltimore!", they respond by joining in! But Democrats and Republicans cannot do this, because they do not agree about fundamental moral principles. Like, what could conceivably come along that was at such a higher level and involved issues where there isn't partisan disagreement? If, I dunno, aliens appeared and tried to invade us? Yeah, that might create partisan unity, on the issue of, let's not get conquered by aliens. That's pretty much the closest analogy to what's going on in Baltimore. And the thing is, this is not a problem. This is the nature of ideological politics, which is way better and more sensible than non-ideological politics given that, y'know, politics is important and people have different fundamental beliefs and hence if politics isn't the forum in which for those beliefs to clash something weird and probably terrible is going on (e.g., massive disenfranchisement of the underclasses or whatever). Politics where the only thing at stake is which faction gets to enjoy being in power, we've seen that. That was the Gilded Age. They call it that for a reason: it was terrible. Its politics, in particular, was terrible. Going back to that would be terrible. Now, maybe it would be nice if our society didn't feature such stark divisions along fundamental moral lines, if there were more broad consensus and solidarity about basic values and political cleavages were just about implementing those values. But why should we expect to see that? I would expect/hope that it's easier to get consensus about empirical questions, i.e., about what policies will effectuate which values, than on the values questions themselves, especially if we're stipulating the lack of the kind of major values divides that can produce divisions in empirical beliefs through motivated reasoning. Also there's always gonna be a tendency for the politics in any given place to "zoom in" on however much fundamental disagreement there is in a given society, I think. (E.g., there stop being overtly pro-slavery people, but even though the spectrum on racial issues gets narrower after that it doesn't get less contentious because the position of, say, no slavery but yes segregation stops getting coded as moderate and maybe an ally of the egalitarians and starts being coded, properly, as The Enemy, and of course people with that position suddenly start coding the egalitarians as The Enemy in return.)

Basically, politics is all about fundamental moral divisions, and those divisions are categorically less easy to overcome than a simple "we want to kill each other" sort of feud. That's natural, and anyone who doesn't instinctively see the obviousness of the Bloods and the Crypts being more reconcilable than the Democrats and the Republicans doesn't understand politics.

Moral Certainty and the Constitution

Criminal defendants are innocent until proven guilty beyond a reasonable doubt. That's the standard formulation, the modern one at least. The idea is pretty simple: criminal convictions carry severe penalties, usually imprisonment, these days for lengthy terms, and so if there's doubt as to whether or not the defendant is guilty, we shouldn't impose those penalties on them. Except that there's always some doubt about everything, so we limit it to reasonable doubt. Makes sense. Another version of the same idea, which I believe may have been used in criminal cases in the old days, is the idea of proof "to a moral certainty." Moral certainty is an old idea that seems to have been inspired as a defense against, like, philosophical skepticism. The idea is, well, okay, yes, we never really know anything absolutely for certain, but we can know things to a degree of certainty that's enough to act on. Moral certainty is basically, I would think, that degree of certainty upon which it is morally acceptable/defensible/correct to act. And of course, this standard will be more or less strict depending on the action being contemplated. Sometimes we might think it correct to act on little more than just a hunch or a suspicion, because it's not that bad if we're wrong, or because it could be very bad if we don't act and should have. In, say, the criminal law context, however, we really don't want to convict someone who doesn't deserve it, for the reasons given above, and so it takes a lot of proof to prove guilt to a moral certainty. It's all one standard, but the work it does varies by context.

I've just been reading McCleskey v. Kemp for my Capital Punishment class. That's the case where the Supreme Court rejected a challenge to the Georgia death penalty as racially discriminatory and hence a violation of the Equal Protection Clause despite an incredibly sophisticated statistical study demonstrating that death-eligible killers whose victims were white got the death penalty a lot more often than those whose victims were black. The Court was basically applying standard (twisted) Equal Protection doctrine, which holds (under the Washington v. Davis standard) that a challenge under the Equal Protection Clause bears the burden of demonstrating intentional discrimination on the basis of race or some other improper factor. Merely showing that a policy has a "disparate impact," i.e. that it's worse for black people/women/etc. than for whites/men/etc., is not enough, although a sufficiently stark disparity can be circumstantial evidence of discriminatory intent. So in McCleskey, the Court says that this study shows only the risk that race may infect capital sentencing decisions, not that any given sentence was the product of intentional racial discrimination. After all, the authors of the study conceded that they cannot prove "to a moral certainty" that race influenced any particular case.

And when I read that phrase, I just had to think, like, what does moral certainty require in this case? I mean, I actually think that the idea of moral certainty ought to doom the death penalty altogether,* but let's set that aside. The Court was asked in this case to set aside McCleskey's death sentence as having been improperly influenced by race. If McCleskey is wrong and his sentence was totally race-free, but the Court found for him anyway, well, horror of horrors, he would spend the rest of his life in jail. That's, I mean, if we consider that a by-hypothesis fair jury thought he should hang, then I guess that's not a great result, but certainly, Warren McCleskey's being imprisoned rather than executed isn't in any way repugnant to our fundamental laws or principles of justice. If, on the other hand, he was right, and his sentence was discriminatory, but the Court didn't act, well then, a black man would be executed for the specific crime of killing a white person. And that is a constitutional abomination. And so it seems to me that this is a case where the "moral certainty" standard is very low. In fact I think the "moral certainty" standard should basically be on the other side, that unless we could say to a moral certainty that race was not the deciding factor in McCleskey's case we should grant him his reprieve.

And this, I think, should hold true across constitutional law generally. People often say that our Constitution, with its multiple veto points between the bicameralism-and-presentment legislative system, the President's pardon and prosecutorial discretion powers, judicial review, etc., is designed to minimize the amount of legislating that goes on, that it is inherently biased in favor of government inaction. As Akhil Amar I think rightly notes, however, the system is not really designed to prevent any laws from passing but to prevent unconstitutional laws from passing: everyone gets a chance to disapprove a law if they think it's unconstitutional. And if we buy that understanding of the Constitution's overarching priorities, then shouldn't we have a general rule that we won't accept the risk of a constitutional violation? We already do this in places: the Miranda rule, for instance, is a clear case where the constitutional violation is not interrogating a suspect without having first informed them of their rights, it's tricking someone into confessing who doesn't know that they have a right not to, and we can't know that this isn't happening unless we provide a warning. There are other examples, but there are also lots of places where we take the opposite approach, where the Court in essence seems to view the wrongful exercise of judicial review as this terrible tragedy that we must be so very careful to avoid. But that just seems backwards. The tragedy is letting constitutional violations happen right under our noses, when we know that they might be happening, just because we can't be sure that they are. We should err, in other words, on the side of not violating the Constitution, and judges are supposed to play their part in making sure that we do.^

This is, I think, one of the strongest forms of my problem with modern equal protection doctrine and the Washington v. Davis standard: discrimination on the basis of race is, like, the greatest constitutional evil there is. It's America's original sin, we literally fought a war that culminated in a series of amendments designed to eradicate it, and the only thing that lets us even pretend to be a decent country is that beginning in 1954 we actually started trying to live up to those amendments. So why the bloody hell is the burden on the challenger to prove that there was intentional racial discrimination? Maybe some of the time when policies have a racially disparate impact it will be completely innocent, but like, so what? If we assume ad arguendo that there's this vast swath of racially disparate things governments do where we just can't tell whether or not they have discriminatory purpose, shouldn't we just not do any of those things? Like, even when we're wrong, I'm not too cut up about having governments no longer do things that disparately hurt black people. If that is the cost of my false positives, and the cost of false negatives is allowing deliberate racial discrimination to proceed, like, even under the Washington v. Davis theory that the Constitution only forbids the latter, shouldn't we still be willing to swallow an awful lot of false positives to avoid false negatives? Now, I actually think we can be somewhat more, ahem, discriminating between different disparate-impact policies, and sort out which ones are okay and which ones aren't (basically by putting stronger and stronger burdens on the government to justify its policy choices as the disparities grow wider), but the prime directive of our equal protection doctrine has just got to be making sure that, as far as is possible, we not let organs of the American government do racially discriminatory things.

And in general that we not allow constitutional violations to happen. We, the American people acting through our federal and state governments, don't have to do things. We could not do things. And so, I think, we shouldn't require moral certainty, in any very stringent sense, before courts will stop us from doing things in the name of the Constitution; rather, we should demand moral certainty that our actions are constitutional before we do them. And courts should be similarly hesitant to allow any government action, particularly action that deprives any person of life, liberty, or property, to proceed if they cannot satisfy themselves that it is constitutional. Perhaps there should be some prudential exceptions to that rule, where the practical consequences of inaction in a field of constitutional uncertainty will be truly dire, or--if this is a thing--where the potential violations feel somewhat de minimis. And the rule isn't that all legislation must prove its constitutionality beyond a reasonable doubt, as we mean that in the criminal context. But the judicial attitude should be one of vigilance, of caution not toward wielding the awesome power of constitutional review but toward failing to wield that power when the Constitution's defense required it.




*Once we admit that there's any possibility of wrongful convictions, which at this point is on par with admitting that the earth is round, then, well, we just don't have to execute people; even in cases with the most overwhelming proof of guilt of the most reprehensible crimes, we can just lock people up, presumptively forever, but then retain the ability to at least partially fix our mistakes if it turns out we made one.
^Of course, judges aren't the only ones with this responsibility; in at least some senses, legislatures have primary responsibilities for not passing unconstitutional laws in the first place. This doesn't mean, however, that legislatures should decline to pass any law that they worry the courts will invalidate; doing so would result in a gap between those laws that the courts actually do think are unconstitutional and those that the legislature can actually pass, which would be a needless limitation on the people's ability to self-govern. Rather it means that a legislature should obviously not pass any law which it itself believes to be unconstitutional, and (zooming in one level) legislators oughtn't vote for laws they think are unconstitutional. That includes laws that the courts would predictably uphold!

Regarding the Braves

The Atlanta Braves had a rather dramatic off-season, and it laid the team's priorities bare: they don't care at all about putting a good team on the field in the 2015 season, or in the 2016 season. They do care about putting a good team on the field in 2017, and thereafter. And honestly, many of their moves have been savvy ones, within that framework: they've shed a lot of talent for the 2015-16 seasons (Jason Heyward, Justin Upton, Evan Gattis, and now Craig Kimbrel) while stockpiling a lot of future value and increasing their flexibility going forward. (They also signed Nick Markakis to a four-year deal, which is a little weird but shouldn't be any crippling difficulty in 2017-18 anyway.) One possible criticism of their off-season would be that they didn't get good enough value out of their deals; for instance, many thought the return in the Jason Heyward trade was just too light. Another possible criticism would be this kind of rebuild is just generally improper: that it's a betrayal of the fans and/or the players to deliberately spend a couple of years slashing payroll below capacity and, therefore, sucking. I'm not especially interested in either of those criticisms, honestly: as to the former, who can say?, and as to the latter, I think a genuine, Andrew Mellon-style, liquidationist rebuild, wherein the team accepts being truly terrible for a few seasons while trying to build a strong organization for the future, can be the right thing to do in certain circumstances. So, especially since it results in the Mets' chief rival over the course of my lifetime being terrible for the next couple of years, I would normally not have any great problem with what the Braves are doing.

Except that it's so racist.

Because, you see, the Braves were not forced into this rebuild. This wasn't a situation where the team had drained its farm system and saddled itself with bad contracts to aging veterans and was on a path that would lead to perpetual awfulness without a rebuild. The Braves weren't great last year, tying for second place with the Mets with 79 wins, and their farm system, even prior to the supplementation it's received over the off-season, was not what you'd call barren, though also perhaps not one of the top systems in the league. Certainly the team had some problems, but going into this off-season they could quite plausibly have done the usual thing and tried to make their 2015 team a potential contender without harming the organization's long-term prospects. The thinking was that they would probably pick one of Upton or Heyward to extend long-term and trade the other, striking that delicate balance between preserving current assets and using some of those assets to replenish the pipeline. That would've been a conventional off-season for the Atlanta Braves. In other words, nothing about the baseball end of things forced them to decide that 2015 wins and 2016 wins don't matter.

No, the reason why 2015 and 2016 wins don't matter is that for those years, they'll still be stuck in their current stadium, Turner Field. It opened in 1997 (I'm practically old enough to remember!), but will be replaced before it can reach 20 years of age, and the team will move from the city proper of Atlanta to the Cobb County suburbs. A little thing about Atlanta proper versus Cobb County: the former has way more black people in it. The decision to get this new stadium build has been subject to enough criticism along racial grounds as is. I can't help but feeling like that is just compounded by their really quite flagrant declaration that they don't care about their two remaining years in the city, that they have made the completely discretionary decision to sacrifice those years that they may be better in their debut season before their new rich, white audience.

It's hard not to root for their scheme to fail--even if I weren't a Mets fan.

The Civil War Continues

In 1866, Congress proposed the Fourteenth Amendment, Section 1 of which was designed to force the states, and in particular the Southern states, to recognize equal civil rights for all, and in particular for the newly freed slaves. That Section, which is unambiguously the most important part of the current Constitution, has four operative provisions. The first overturns Dred Scott v. Sandford and declares that, yes, African-Americans are citizens of the United States. The second prohibits states from violating the privileges or immunities of American citizens. The third prevents them from depriving anyone of life, liberty, or property without due process of law, and the last requires them to provide the equal protection of their laws. These four provisions are, in essence, the terms of settlement of the Civil War.

And in that settlement, as it was originally supposed to work, it was the first two Clauses that were supposed to do most of the work of guaranteeing substantive legal equality. After all, if blacks are citizens and you can't violate the rights of citizens, well, that sounds like black people have rights. Alas the Court has basically pretended that the second provision doesn't exist and that the first one has only a narrow technical meaning rather than a richer substantive one. As a result, the last two provisions are carrying a lot of weight they weren't originally meant to; the Equal Protection Clause in particular is the central doctrinal lynch-pin for just about all of the Court's equality jurisprudence. But the reason why it's there at all, back when they thought the Privileges or Immunities Clause was a thing, was because the Privileges or Immunities Clause addressed itself only to legislatures. But everyone knew that a Southern state could write the world's most even-handed, non-discriminatory legal code and yet legally entrench massive racial oppression, by the simple device of not enforcing those equal laws equally. The paradigm example of this would be a Southern state simply not punishing people who murdered black people.

Hmmm, where have I heard that before? Or, rather, where have I heard that since?

The thing about the Civil War is that it never really ended. We stopped having battles with armies but the central question that the Fourteenth Amendment was meant to settle as the terms of the peace, the question of whether black people are full and equal members of American society, has never quite been resolved. And not just legally: Michael Brown and Eric Garner are just among the latest Civil War casualties. And the failure to punish their killers isn't just racism, it isn't just institutionalized racism, it is quite literally unreconstructed institutional racism, in the very precise sense of being the exact problem that the key Reconstruction Amendment was meant to eradicate. Having this not happen is what we fought that war over. And that means we're still fighting.

It's Not About Race, It's About Racism

I try not to watch much Fox News these days. Well, any days. I mean I've never watched any Fox News, except for that one time when Stephen Colbert went on the O'Reilly Factor. But in general I try to keep my exposure level to Fox, and to conservative media in general, to a minimum. That's the kind of thing that gets you rather criticized in some parts, but seeing a few clips of Fox's coverage of the Ferguson situation has reminded me why I have this policy. It... was kind of shocking. And disturbing.

But anyway, one of the themes of the rantings of the people on Fox was that it was wrongful of liberals generally to make Ferguson and the shooting of Michael Brown about race. So here's what I have to say about that: it's not about race. It's not about race at all. Michael Brown's shooting is not outrageous because Michael Brown was black. It's outrageous because a young man was murdered. (Yes, that's conclusory, but as far as I can tell there's no reason to think it was anything other than murder, except that the perpetrator was an on-duty cop and there seem to be people who increasingly think that it's just a logical impossibility for an on-duty cop to commit murder). It's doubly outrageous because the murderer was a member of the government, of law enforcement, sworn to protect the people. Which, you might think is a bit inconsistent with murder. And the outrage is compounded by the fact that this happens a lot. And it pretty clearly doesn't have to: other countries simply don't experience significant numbers of murders by their police officers (and also don't suffer rampant violent crime by the thus-emboldened criminals).

So where does race enter the story? Because essentially all the victims of police murder in this country happen to be black. Or to put it another way, race only enters the equation because racist, violent police officers put it there. Michael Brown's death was an outrage simply because he was human and he was murdered. The point is that he was murdered because he was black, as an awful lot of other people have been. So it's really not about race, and it's certainly not really about his race. It's about racism, and the racism which seems to spawn most of the police violence and brutality in this country. This is also, of course, why you see lots and lots of white people every bit as outraged as any black person about Ferguson (or at least very nearly; I wouldn't want to presume that those of us who don't live under this threat can quite understand just how terrifying it is). The conflict here isn't white against black, it's racists against non-racists. The former are a rather large subset of white people; the latter are a coalition of non-whites and white liberals. And those of us in the not-racist coalition are all equally outraged about Brown's death, and about the conservative indifference to his death (sorry, did I say conservative? I meant racist, it's so easy to get confused these days). We'd be equally outraged at the shooting of a white person by cops, except that, well... that doesn't happen so much.

Any guesses why that might be, Fox contributors?

::crickets::

My Problem with Washington v. Davis

Washington v. Davis is a 1976 Supreme Court case which ruled, in essence, that the Fourteenth Amendment's Equal Protection Clause is not a self-executing ban on all government policies which have racially disparate impacts. That is to say, just because some policy has a more negative effect on black people than white people is not enough to make it into a violation of the Equal Protection Clause. To be even more specific, the point is that if all the person challenging the policy can show is that such a disparate impact exists, they lose; instead they need to show that the policy had racially discriminatory intent. Now, in some sense this has to be right. Most states fund themselves predominantly through property taxes and sales taxes and therefore have regressive tax codes, unlike the income-tax-funded federal government. Black people tend to be poorer, and are therefore disproportionately burdened by regressive tax codes. But the Equal Protection Clause cannot reasonably be construed as making sales taxes off-limits. My tendency has been, therefore, to say that I more or less agree with the statement in Washington v. Davis that disparate impact alone does not make a constitutional violation, though I might want to press pretty hard on letting disparate impact be considered evidence of discriminatory intent, perhaps even in the absence of any other evidence.

But then let's consider the specifics of the case Washington v. Davis itself, and how it relates to this week's outrage in Ferguson, Missouri. The facts of the case are that two African-Americans had applied for positions in the Washington, D.C. police department, and had been rejected based on their scores on Test 21, a verbal skills test used throughout the federal bureaucracy. They sued, because as it happens, black people failed Test 21 at a much, much higher rate than white people. (Like three times higher I think, roughly 60% versus 20%.) Now, interestingly, the Court also ended up ruling that, in fact, there was no disparate impact, because the Civil Rights Act of 1964 uses a disparate impact standard. I'm not exactly sure how they got to that conclusion, and my guess, from a judicial-sociology perspective, is that the main difference between dissenters Thurgood Marshall and William Brennan and the majority was their understanding of the disparate effects of the policy.

But in any event, now let's ask the key question: assuming, for the sake of argument, that the effect of Test 21 was to result in a more-or-less all-white police force in a majority-black city, and also assuming for the sake of argument that Test 21 was adopted with absolutely, positively no intent for that to happen, but only with intent to make sure that police officers had good verbal skills (an undoubtedly good thing!), is there really no problem here? Because, as we see so dramatically in Ferguson, the police are basically the instrument of government. They are the ones who actually impose governance and law upon the people. They are the ones who wield the violent force which the government is said to have a monopoly on the legitimate use of. And they, therefore, are the ones in position to perpetrate government abuse of the people. Hell, they're in a better position to do that than legislators, whose abusive actions can be more easily challenged in and nullified by the courts. When a cop kills someone, well, there's no such thing as compensatory damages for that.

And so I think there's a very real sense in which having a police force almost exclusively comprised of members of the historically oppressor race policing a large population of the historically oppressed race is kind of, y'know, just not okay, whether or not you meant for it to happen. For similar though arguably less weighty reasons ('cause we're not talking about the people walking around with guns on their hips), I think it's just not okay to have policies in place whose result is that your state bureaucracy is segregated into an all-male group of powerful office-holders and decision-makers and an all-female secretary pool. (That's the facts of the next case in the disparate impact sequence, Personnel Administrator of Massachusetts v. Feeney.) And I become particularly skeptical of the actual facts of Washington v. Davis when I think about how easy it is for verbal skills tests to become, in essence, whiteness tests. I mean, hell, there's a reason why segregationists used literacy tests. Now, yes, there does have to be some accommodation to the perfectly legitimate government interest in making sure its people can basically communicate. But guess what? Adult black people tend to communicate with one another pretty well. So if your "verbal skills test" is flunking most of them, maybe that means you're really testing mostly for "ability to talk like a white person," something that probably isn't that necessary for being a Washington, D.C. police officer. And shouldn't that be unconstitutional, even if it was kind of accidental? If we believe that the constitution commits us to racial equality (which we do; see Brown v. Board of Education), and if we believe that it forbids systems of caste, shouldn't it just not be possible to constitutionally set a whole bunch of white dudes to police a large black population?

Big Government, but Actually

So, I've written before about how I dislike the phrase "big government," or at least the way it gets used these days. This week's disaster in Ferguson, Missouri, where yet another young, unarmed black man was shot and killed by police and where those same police have responded to the wave of protests said murder occasioned by using military equipment on their own citizenry, is, I think, a really powerful demonstration of that point. Because this is big government, real big government. This is government which is big not in its budget or in its bureaucracy but in its capacity for physical force. And let's remember, physical force is what makes a government a government. Literally, governments are defined by their relationship to violence. That's how you tell what's the government in any given area, really: you look to see who has a monopoly on the legitimate use of force. Well, I say "legitimate," because I guess they're only one competitor in the illegitimate-use-of-force market, if a rather major player. And so I think the most meaningful possible sense of the phrase "big government" has got to be a government with an aggrandized relationship to violence. Like, say, a government which has gone around equipping local police forces with military equipment mainly because it (the military equipment) was there, meaning that the so-called "War on Drugs" just had to turn itself into an actual, literal war against the American people, or rather against those of the American people who have the misfortune of dark-colored skin. That's what we're seeing in Ferguson, and that's what's really worth railing against. That and the highly-related surveillance state form of "big government." There's a pretty good reason to think that a government which is spying on its populace and which has in essence armed itself against that populace as against an enemy military power is doing something wrong, and is at the very least a pretty real threat to the people it's meant to serve. There's no great a priori reason to think that a government with many regulations or with a large budget is doing something wrong. One of these things deserves to have the derisive "big government" label slapped on it, the other doesn't. At least Rand Paul has the decency to object to both.

Planned Parenthood v. Casey Says Some Weird Stuff About Stare Decisis

I am, obviously, a fan of the result in Planned Parenthood v. Casey, at least insofar as the "result" is "we're not overturning Roe v. Wade." (And, the result is precisely that, pretty damn far; the details are relatively inconsequential.) But I'm a fan of the result because I'm a fan of the result in Roe itself. Lots of people aren't, of course, and you get the sense that Kennedy, at the very least, and probably also O'Connor are among them. They, of course, are two of the three co-authors of the plurality opinion in the case, along with Souter. And that plurality opinion is not mainly remembered for its discussion of the constitutional law of abortion, because, well, it doesn't really discuss that all that much, no doubt because a majority of those writing it didn't necessarily agree on the merits with the reasoning of Roe. So instead they talked about stare decisis. And boy do they say some weird stuff.

Oh Good

I've written before that it's important to me that Plessy v. Ferguson be considered, not just to be wrong, but always to have been wrong. To have been wrong the day it was decided. Well, I was encouraged to see the following line in a Supreme Court opinion I was just reading for class:

"...we think Plessy was wrong the day it was decided..."

Yes! The Supreme Court agrees with me!

Okay, technically that wasn't a majority opinion, it was a plurality opinion. Specifically it's the plurality in Planned Parenthood v. Casey, in the section discussing stare decisis. They (it's Souter, Kennedy, and O'Connor, though one suspects that Souter, perhaps the world's biggest fan of stare decisis, wrote that section) discuss why the overruling of Plessy in Brown v. Board of Education was consistent with the theory they used to justify upholding Roe v. Wade, despite certain reservations as to its soundness. The word at the beginning of the sentence, which I didn't include above, was "while," and what follows is a version of the way people justify Brown in light of the "changing times" or whatever: however plausible they may or may not have been in 1896, the purported factual underpinnings of Plessy (that segregation was not a "badge of inferiority," etc.) were absurd by 1954, and this therefore justified reversing the case.

Still, I doubt that Souter, Kennedy, and O'Connor would say something like that if it weren't pretty much the consensus on the Court. And my sense is that the Supreme Court usually thinks of itself, when overturning a precedent, as explicitly repudiating the older case, declaring that its reasoning was faulty from the beginning. That, I think, is as it should be; though of course there will be times when genuinely changed circumstances command a different result over time, this will be rare compared to the times when a new majority simply recognizes that the old majority got it wrong. This is likely to be especially true in the constitutional context, where, in theory, the underlying law isn't changing except by Amendment. Well, that depends on whose theory, I guess; Bruce Ackerman would disagree with me in no uncertain terms there, which is after all the point of my whole "do you think Plessy was wrong when decided?" inquisition.

I'll close with a return to the reasons why I find theories, like Ackerman's, that seem to suggest that Plessy was right for its time or whatever truly offensive rather than just wrong as an intellectual matter. If Plessy was not wrong the day it was decided, then it's not quite right to say that the Equal Protection Clause of the United States Constitution forbids racial apartheid, because obviously if it prohibits racial apartheid then Plessy could never, ever have been even a little bit right. And so I find it more than a little comforting to see the Court, even a plurality of the Court, stating explicitly that Plessy was always wrong. That simple statement commits the Court, the guardian and expositor of our Constitution, to the view that it's not just some contextual happenstance that we don't allow racial segregation. It's a matter of eternal and unchanging principle.

The Living Constitution, Post-Script: Plessy v. Ferguson Edition

A brief follow-up to my previous post about how no one really believes in the living constitution. Steve Calabresi liked to say, in the class I took with him about constitutional theory, that the first task of any good constitutional theory is to explain why Brown v. Board of Education is correct. Brown is in many ways the center-piece of the modern constitutional understanding and its relationship to society; any theory which views it as erroneous has, therefore, a fatal weakness. But I've often had the thought, especially when reading anything written by Bruce Ackerman but also when reading Jack Balkin's Living Originalism, that this is only half of the test. I don't just want a theory to tell me why Brown is correct. I want it to tell me why Plessy v. Ferguson was wrong. Now, that might sound like the same thing, since the one overturned the other. But I mean that I want a theory to tell my why Plessy has always been wrong, why it was wrong the day it was decided. Partly that's because I believe it was wrong the day it was decided. Partly that's because I think it's important that it was wrong the day it was decided. If we think Brown is right, and that it's important that it's right, which we do, I think it equally important to state clearly that the contrary result could never be the correct one under our Constitution. If Plessy was not really wrong the day it was decided, then the Fourteenth Amendment, which we think of as guaranteeing racial equality, does not really do so, because somehow Plessy was consistent with it, once upon a time.

So I found it very interesting when the article from which I drew the Newtonian-vs.-Darwinian imagery later described the holding of the Brown case thusly:

Not that Plessy v. Ferguson was wrong in 1896, the Court argued, but rather Plessy v. Ferguson had become erroneous because of what separate but equal had come to represent.

The Court, in other words, rejected my view. Plessy wasn't wrong at the time, but it became wrong, as the meaning of segregation changed or perhaps as we just grew to understand that meaning better.

But I actually think this is a perfect example of my point from my last post. Because, really? Do we really think anyone believed that? That Earl Warren did? That William Brennan did? That they thought the problem with Plessy was just that it had become outdated? I know that the architect of the Brown case, Thurgood Marshall, didn't think Plessy was correct. He was the leader of an organized movement that had been working to undermine and eventually overturn Plessy for more than half of the time between the two cases. Of course he thought Plessy had been wrong the day it was decided. Certainly my grandfather, who defended the Brown case on traditional legal grounds during the controversy it generated, though Plessy had been wrong, and obviously so. Do we really think that Warren, Brennan, Hugo Black, Felix Frankfurter thought that Louisiana's railroad segregation laws of the 1890s were constitutional? I don't think they did. I just don't buy it. I think they all thought that racial segregation was and had always been a denial of the equal protection of the laws.

But that isn't what they said. Instead they couched their opinion in the terms of a living constitution, for some reason. One way or another, they didn't want to condemn the past as strongly as their own opinions would condemn it. Which was arguably a mistake. After all, the living constitution idea, or at least what people usually mean by that phrase, really is a philosophically weak idea. It opens you up to the attack of people like Antonin Scalia and Herbert Weschler, who'll accuse you of judicially rewriting the Constitution. Better to just say, no, the ones who rewrote the Constitution were the Plessy Court, who struck out the Equal Protection Clause from the document. It might make the immediate firestorm worse, as those on the other side castigate you for repudiating their past, but in the long run I think it would lead to a more solid theoretical foundation for the new constitutional understanding.

Might the Thirteenth Amendment Have Passed Earlier?

Well, no. Obviously not, not as history actually played out. No slave state was ever going to vote for the Thirteenth Amendment (not the real one, anyway, as opposed to the proposed one that would have given slavery constitutional protection for all time), and at no time prior to the Civil War were there ever anything close to enough free states to pass an Amendment all on their own. In fact, once New York and New Jersey abolished slavery the percentage of free states never wavered more than ten percentage points away from 50% in either direction.

So obviously I'm talking about a slightly alternate history. The divergence, I think, wants to start around 1831-32, when Nat Turner's slave rebellion caused many Southern states, most prominently Virginia, to genuinely consider the future of slavery, with some advocating a move toward gradual emancipation. Obviously, that side lost the debate, but what if they had won? Could there have been enough free states and gradual-emancipation states together to pass some sort of anti-slavery amendment without a war?

In 1832, there were twelve slave states and twelve free states. Three-quarters of twenty-four would have been eighteen, so we need six more free states, or at least states perhaps willing to vote for an anti-slavery Amendment. Virginia's one. But let's also say that, had Virginia seriously moved away from slavery, the border states, the ones less Southern than Virginia, would have done so as well. That's Maryland, Delaware, and Kentucky, at the very least. Maybe Missouri as well, and that's up to five, one short of the requirement. This would have made the Missouri Compromise line the line for slavery throughout the country, east as well as west. It also wouldn't quite have been enough for an amendment. If we assume that every state which joined the Union between 1836 and the start of the war would have been aligned as it actually was, this would have been the high point for the prospects of getting the Thirteenth Amendment through ahead of its time.

If, however, Virginia and the border states had rejected the cause of "slavery today, slavery tomorrow, slavery forever" in 1832, the addition of future states might not have happened as it did. Those states probably wouldn't have signed off on national immediate abolition, but they also probably wouldn't have minded admitting more free states and tipping the long-term political balance away from slavery. Perhaps Arkansas might have been admitted as a free state, which would have brought the free or quasi-free states to 72% of the country. Adding Michigan would take that up to 73%, on the eve of the Mexican-American War. But, in this scenario, that war might well not have happened. Or, alternately, prospective free states such as Iowa and Wisconsin might have been admitted before Texas and Florida were added as slave states.

Let's suppose that happened: Arkansas, Michigan, Iowa, and Wisconsin were added to the 1832 mix, with no new slave states. That brings the total to 21 free/quasi-free states, 7 slave states: three-quarters precisely! And in that scenario, those twenty-one states would have been able to band together and pass some sort of compromise, gradual anti-slavery amendment. Perhaps prohibiting the addition of more slave states, prohibiting anyone not currently a slave from being enslaved, rolling back the fugitive slave laws, restricting the slave trade, etc. It wouldn't have been as ringing as the real Thirteenth Amendment, but it might have avoided war and after the phase-out period the practical difference would vanish.

The 1831-32 Virginia slavery debates, in other words, could have been a turning point in American history. Had the other side carried the day, it would have become awfully feasible for the opponents of slavery to achieve a political victory without resorting to a massive, bloody civil war. Now, this alternate Thirteenth Amendment might have triggered war between the seven hold-out slave states and the free majority, but they might have gone along with a sufficiently compromise-laden amendment. Hell, once they saw that the anti-slavery forces were gaining political ascendance they might have been willing to cut a deal on a Thirteenth Amendment that would gradually abolish slavery but on the most lenient terms possible. Plus, had there been a war it would've been over a lot quicker, with only a small handful of relatively small states against the entire rest of the country. American history would be an awfully lot less tragic; the future of civil rights after the abolition of slavery might even have been less of a struggle. Of course, it's probably not a matter of luck that things didn't turn out that way; the pro-slavery side won those debates for a reason, after all. But it's interesting, and a bit heartbreaking, to think about.

Why We Abandoned the 14th Amendment

In 1868 the American people ratified the 14th Amendment to the Constitution, which, if you read its text, gave every citizen a broad set of protected constitutional rights and provided every American with a strong guarantee of equality. By 1896 the Amendment was more or less a dead letter, not even prohibiting de jure racial segregation. It had already been robbed of the vast majority of its force long before then, though. In 1883 that broad set of protected rights was held to be essentially trivial in scope. And all the way back in 1873 the Amendment was held not to give Congress the power to directly regulate racial discrimination by private individuals. This is, well, weird. In one sense it's not particularly strange: after all, the America of 1896 or 1873 was in no way ready for true racial equality, or the other kinds of equality the Amendment has since been held to guarantee. But... neither was 1868 America, right? So why did it enact the damn thing in the first place? You'd almost think that something changed between 1868 and 1873. Something big, something that would seriously change our expectations about the American polity's attitudes toward a federal guarantee of individual rights and civil equality.

And you would be right. Something big did happen: we let the South back in. Eleven states joined the Confederacy during the Civil War. Precisely zero Senators or Representatives from those eleven states cast votes on the Fourteenth Amendment, yea or nay. Now, the Southern states did ratify the Amendment, but they were forced to by the all-northern Congress. People have argued that this undermines the legitimacy of the 14th Amendment. I'm not interested in that question here; the point is simply that the Fourteenth Amendment was the product of an entirely northern politics. It was also one of the last things that all-northern politics would ever get to do.

By 1873, every Southern state was back in the Union. In the 1870 census, those states made up almost exactly one quarter of the total population, and a very slightly higher percentage of electoral votes. Their addition meant that the political center of 1873 would have been around the 67th percentile of conservativeness in the 1868 all-northern political culture (assuming the entire South was to the right of that position, which feels safe, on racial issues at least). Or to put it another way, it is entirely possible that there was a genuine strong majority favoring the kind of equality the Fourteenth Amendment seems to establish and that by as early as 1873 that the American people did not want that kind of radical change. Because "the American people" changed in the interim. A political coalition favoring the Fourteenth Amendment's broad principles could easily find itself victorious in 1868 but on shaky footing at best as soon as five years later, hesitant to enforce its own creation for fear of political liability.

In a sense, then, the question is which expression of the will of the people we should treat as dominant, as legitimate. Obviously the normatively correct answer is the 1868 version. That's also why I don't really care about whether the 14th Amendment is formally illegitimate because it was enacted through coercion: as between the cause of racial (and more general) equality and the strictures of the Article V ratification process, I'll take the former every time. Without the Reconstruction Amendments, the U.S. Constitution as a whole would be illegitimate. You could try to argue, though, that we can't treat the text of the Fourteenth Amendment as a true expression of the will of the American people, that the Slaughter-House Cases, Civil Rights Cases, and Plessy v. Ferguson should essentially be retroactively read as the original intent of that Amendment because they represent the attitudes of the country as a whole.

Of course, that entire line of inquiry would depend on giving a damn about the original intent of the American people of 1868. Fortunately, what matters is not what they wanted or thought but what they did, and (except insofar as the 14th Amendment is invalid, which I don't think it is for various reasons) what they did was to guarantee to all the equal protection of the laws, and to protect the privileges and immunities of citizens of the United States. Nice and simple. But if we're puzzled by the fact that We, the People seemed to disavow our own act beginning just half a decade after we made it in the first place, we shouldn't be. We were just a different People.

It's Staggering How Wrong McClesky Is

I have been given the unfortunate task, for my constitutional law class, of coming up with a defense of McClesky v. Kemp, the case in which the Supreme Court rejected, 5-4, challenges to death penalty laws on the grounds that they were applied in racially unequal ways. Yeah. Anyway, the article that I'm reading about the case and its history suggests that part of Justice Powell's motivation in being that fifth vote was that the statistics showed discriminatory application of the death penalty mostly related to the race of the victim in a murder, not that of the defendant. The idea, I suppose, is that a black defendant is not being discriminated against on account of his race if he is sentenced to death because he killed a white guy, whereas someone else, white or black, who killed a black guy is just imprisoned for a mighty long time. But there's a deep historical perversion here. If you read the Fourteenth Amendment the way people would have before the Slaughter-House Cases eviscerated the Privileges or Immunities Clause, most of the job of guaranteeing against the invasion of substantive rights by law on discriminatory grounds had already been done. The peculiar function of the Equal Protection Clause, however, was to prevent Southern states from applying facially neutral laws in discriminatory ways. Specifically, to prevent them from having a de facto policy of acquitting, or not even indicting, white men who killed blacks, while throwing the book at blacks who killed whites. Or, to put it another way, to prevent the exact thing the NAACP's statistics showed in McClesky. The exact same thing. Okay, we don't generally let the killers of black people just plain walk of out court these days, but we let them live, as we (or at least those states that still ever execute anyone) don't those who kill whites. So yeah, sure, maybe the defendants aren't being denied the equal protection of the laws. But the victims are. Unfortunately, they can't exactly bring suit: they've been murdered, is kind of the whole point. Someone needs to be able to object, and it has to be people sentenced to die for killing whites. Honestly I think a white man so sentenced would have a valid claim, too, but certainly a black one. One way or another, though, I know that for death penalty laws to survive because their unequal application is precisely the kind envisioned by the Equal Protection Clause as most problematic is deeply perverse, and I can only hope that the next President Clinton is able to appoint that fifth Justice to get rid of the whole system.

The MPDC's Homicide Clearance Rate and What To Do About a Crime Wave

Matt Yglesias recently tweeted a link to this data from the Metropolitan Police Department of the District of Columbia, showing the city's number of homicides and the clearance rate of those homicides for every year from 2002 through 2011. The really striking part, of course, is the 95.4% closure rate in 2011. That's insane! At the beginning of the period the rate was just 55%. The percent of murders that go unsolved has, in other words, been divided by nine over the last decade in D.C. How did that happen? Did the police get nine times as effective? Or twice as effective, if we look at the yes-solved percentage? Well, that's a somewhat complicated question, and it's tough to know which of the effects at play here are to the credit of the police. But it's clear what is going on here: the MPDC has a certain murder-investigating capacity. Based on these numbers it's somewhere between 110 and 140 cases per year. But the murder rate has been falling like a stone, from 262 homicides in 2002 to just 108 in 2011. The result is that the same total amount of murder-clearing represented a much lower percentage in 2002 than it did in 2011.

Or to put it another way, I had Microsoft Excel calculate trend lines for the plot of both solved and unsolved homicides against total homicides. There's a positive correlation in both cases, of course, but the comparison between the two is an interesting one. Every extra homicide, according to these data, will on average correspond to an extra 0.325 cleared homicides. And the total homicide rate explains 79% of the variance in number of cleared homicides. But every extra homicide, of course, leads to .674 uncleared homicides (after all, it must be one or the other, so the two slopes add up to 1). In this case, though, the R-squared value is 94%. That is to say, based on the data the total murder rate provides an explanation for the changes in the number of unsolved murders which is very nearly complete. We need look basically no further to find out what determines the number of murders which go unsolved in D.C. every year. Oh, and these simple linear trend lines suggest that, if no murders were committed, 63 of them would be solved anyway. That's sixty-three out of zero murders.