Originalism And The Second Founding

It’s interesting (okay, infuriating) to note the highly selective “originalism” practiced by  retrograde justices on the Supreme Court. In their professed zeal to mind-meld with the nation’s earliest Founders, they entirely ignore what scholars have called “the Second Founding”–the post-Civil War passage of the 13th, 14th and 15th Amendments.

Ratified in the years immediately following the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution—together known as the Reconstruction Amendments—abolished slavery, safeguarded a set of basic national liberties, and expanded the right to vote.

Both Justice Ketanji Jackson and Heather Cox Richardson have recently reminded us of that “original” history.

President Andrew Johnson, an unrepentant racist, vetoed the 1866 civil rights bill, claiming–among other things– that it wasn’t race neutral.  It wasn’t–and it wasn’t intended to be. Congress passed it over his veto– and based the Fourteenth Amendment on it.

 The 13th, 14th, and 15th Amendments explicitly give the federal government power to protect individual rights in the states. Scholars like Akhil Reed Amar, who teaches Constitutional Law at Yale, call their passage the “second founding.”

Amar explains that the Reconstruction Amendments shift emphasis somewhat from Madison’s first concern– protecting people from unrepresentative government (see Federalist 51)–to his second: protecting minorities from the tyranny of the majority. The 14th prioritizes “ideals of liberty and equality.” 

Amar and Richardson are two of the many historians and constitutional scholars who define the period following the Civil War as a “reconstruction” or “second founding.” (Amar’s magisterial book The Bill of Rights is subtitled Creation and Reconstruction.) So it is very interesting that today’s self-described “originalists” ignore that reconstruction.

I can see two reasons for that studied avoidance: first, the clear legal meaning of those Amendments, especially the 14th, is inconsistent with their theocratic revisionism; and second, they provide clear historical evidence that Constitutional principles have evolved to meet changing times.

A 2019 article in the New Yorker focused on the work of constitutional historian Eric Foner, who has written extensively on the Reconstruction Amendments. As Foner explains, the issues central to those Amendments remain central to our politics today.

Who should vote? Who should be a citizen? What does equality before the law really mean? But, most important, and without trying to denigrate any other scholar, I lecture a lot about Reconstruction—I lecture in law schools, I lecture in history departments, I lecture to public audiences outside the academy—and I have found that there’s very little knowledge of why the Thirteenth, Fourteenth, and Fifteenth Amendments are important, or what they were trying to accomplish, even in law schools.

Foner points out that, even in the immediate wake of their passage, the Court narrowed  application of the Amendments, arguing–against the evidence–that they hadn’t really effected much change. Foner and other historians disagree.

Many years ago, when I was doing research for a book I was writing, I unearthed  contemporaneous newspaper coverage of the arguments for and against ratification of the Fourteenth Amendment. Those debates confirm Foner’s reading: the Americans who were preparing to vote on their state’s ratification of the Fourteenth Amendment believed it made very substantive expansions to the “privileges and immunities” of citizenship. It was with that understanding that they voted for (or against) ratification.

As one pundit noted during Amy Comes Barrett’s (excessively brief) confirmation hearing: “given that the Constitution was effectively rewritten by the Reconstruction Amendments, it would be great to see a Supreme Court nominee say something like “I will interpret the Constitution as it was understood in 1870.”

In 2004, the Brennan Center issued a paper explaining the real history of the Reconstruction Amendments, and the persistent failure of the Supreme Court to properly respect and interpret them.(The current court is simply a more egregious example of a longtime failure of jurisprudence.)

From the introduction to that paper

The Supreme Court’s recent turn away from civil rights and toward states rights claims legitimacy from a familiar but false history: the Constitution of 1787 carefully preserved the states sovereignty; Congress operated for 150 years within narrow constraints on its enumerated powers; the courts zealously policed the boundaries of proper federal action; and the half-century starting with the New Deal, when the Supreme Court allowed the federal government to do more or less what it wanted, was an anomaly.

None of this is true. If there is an anomalous period in the relationship between the Court and Congress, it began shortly after the Civil War … These decisions betrayed Lincoln, who had promised a new birth of freedom at Gettysburg, and the people who enacted the constitutional amendments and legislation to make that promise a reality… 

Basically, the Court continues to ignore “the widely understood meaning and purpose of those amendments at the time they were ratified.”

We have very selective “originalists”!

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Accounting For MAGA

In a recent newsletter from The Atlantic, Tom Nichols echoed a frustration of my own. He wrote that, in his lifetime, he’d seen” polio defeated and smallpox eradicated. Now hundreds of thousands of Americans are dead—and still dying—because they refused a lifesaving vaccine as a test of their political loyalty to an ignoramus.”

Ever since 2016, a significant percentage of my posts have revolved around the reality (or actually, the unreality) of that political loyalty, and my inability to understand what–other than racial grievance–might account for it.  Study after study, however, has confirmed that it is, indeed, racism that explains support for Trump and the MAGA movement.

The Guardian recently published an article building on that research. The author began by commenting on President Biden’s forceful condemnation of Trump and MAGA, and as he noted, that attribution was correct —so far as it went.

The deeper, more longstanding threat, however, was articulated by historian Taylor Branch in a 2018 conversation with author Isabel Wilkerson recounted in Wilkerson’s book Caste. As they discussed how the rise of white domestic terrorism under Trump was part of the backlash to the country’s growing racial diversity, Branch noted that, “people said they wouldn’t stand for being a minority in their own country”. He went on to add, “the real question would be if people were given the choice between democracy and whiteness, how many would choose whiteness?”

 Whiteness is the deeper threat because championing whiteness is what makes Trump powerful. People forget that Trump was not particularly well-regarded before he started attacking Mexican immigrants and signaling to white people that he would be the defender of their way of life. In the months before he launched his campaign, he was polling at just 4% in the May 2015 ABC/Washington Post poll. After stirring the racial resentment pot, his popularity took off, growing exponentially in a matter of weeks and propelling him to the front of the pack by mid-July 2015 when he commanded support of 24% of voters, far ahead of all the other Republican candidates.

Of course, Trump’s discovery of the power of racism is nothing new. (That’s why the Right doesn’t want accurate history taught in our schools.) The author quoted George Wallace’s epiphany:  “I started off talking about schools and highways and prisons and taxes – and I couldn’t make them listen. Then I began talking about n—–s – and they stomped the floor.”

People who’d dismissed Trump as a loudmouth buffoon “stomped the floor” when he began talking about (brown) Mexicans and Muslims.

The article reminded readers of Wallace, Nixon’s “southern strategy,” and the fact that David Duke–an “out and proud” Klansman–had attracted the support of 44% of Louisiana’s voters when he ran for the U.S. Senate.

The good news is that the proponents of whiteness do not command majority support. The original Confederates themselves were in the minority and represented just 11% of the country’s white population. People who enjoy majority support have no need to unleash fusillades of voter suppression legislation in the states with the largest numbers of people of color. Yet, from the grandfather clauses of the 1800s to the restrictive voting laws passed last year in the south and south-west, we are seeing an unrelenting practice of trying to depress and destroy democracy by engaging in what the writer Ron Brownstein has described as, “stacking sandbags against a rising tide of demographic change”.

It’s one thing to confirm that a majority of Americans aren’t racist. It’s another thing to ensure that the people in that majority turn out to vote. As the author says,

In order to defend democracy and win the fight for the soul of the nation, two things must happen. One is to make massive investments in the people and organizations working to expand voting and civic participation. Coalitions like America Votes Georgia and Arizona Wins played critical roles in bringing hundreds of thousands of people of color into the electorate, helping to transform those former Confederate bastions.

We also need to “name and shame” the numerous political figures who are appealing to racist sentiments in order to turn out their supporters. Too many liberals shrink from calling out those who are trafficking in racism–it seems so uncivil. But racism is also uncivil–and far more dangerous.

To ultimately prevail in this defense of our democracy, we must clearly understand the underlying forces imperiling the nation, name the nature of the opposition, and summon the majority of Americans to unapologetically affirm that this is a multi-racial country.

This is a test, and we cannot afford to fail.

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Well, At Least I’m Consistent….

Back in 2012, when I was still teaching, I published an essay in an academic journal. I recently came across it, and realized that–as the midterms approach and the GOP departs further from reality–it’s more applicable than ever, so I’m sharing it.

I titled it The Great Disconnect.

As another election season comes to a close, one lesson is abundantly clear: there is a huge disconnect between the skill sets public offices require and the sales pitches candidates are making.

Campaigns are job applications and the candidates are applicants. We voters are the folks doing the hiring. In order to make informed “hires,” we need to know two things: what competencies the job requires, and which of the “applicants” come equipped with the requisite skills as well as our preferred policy positions.

Is this election for mayor, governor or president? We need someone who understands the relevant administrative structure, who is able to assess and recruit knowledgeable technocrats and aides, who has a good grasp of economic and budgetary issues, tax policies, intergovernmental relations and the mechanics of service delivery. It is highly desirable that the applicant be aware of the competing needs and desires of the diverse constituencies to be served and have an ability to communicate with representatives of those constituencies.

Is this an election to fill a legislative seat? In addition to the skills listed above, a policy background is highly desirable—as is a demonstrated ability to work in a bipartisan way with other legislators and members of the executive branch.

If democratic processes are going to produce satisfactory results, voters need information that allows them to match the qualifications of the candidates to the requirements of the position. Unfortunately, it is impossible to sit through the avalanche of misleading 30-second spots, scurrilous Internet postings or negative direct-mail pieces that flood our in-boxes and snail-mail boxes and not conclude that the task is impossible, and that the American electoral process is badly broken.

There is no dearth of theories about what ails us: too much money, too much rigid ideology, too much partisanship, too many lobbyists, too many pundits and too few real reporters….the list is extensive, and all of the items on that list undoubtedly contribute to the sorry state of today’s politics. But these things would matter less if the electorate were better informed.

Let me just offer a couple of all-too-typical examples. In my state, a Senate candidate is currently airing a spot blasting his opponent—a sitting Congressman—for voting to raise the debt ceiling. This political attack depends for its effectiveness on public ignorance of the difference between a vote to raise the debt ceiling and a vote to add to the national debt. Large bipartisan majorities have raised the ceiling without controversy for many years, because members of both parties have understood that difference.

The national debt is a real problem. Reasonable people can disagree about the mix of “revenue enhancements” (aka taxes) and spending cuts needed to address that problem, how much stimulus is needed to get the economy moving again, and what programs might be cut without harming our still-tenuous recovery from the Great Recession. But only someone with absolutely no understanding of the economic system advocates a reckless act that would make it impossible for the U.S. Government to pay its bills—and only an uninformed voter would respond positively to such advocacy.

A more typical political attack is some variation on the theme that “Congressman X has been in Washington for Y years, but we still have problem Z.” No one who understands checks and balances and the limits on what any individual member of Congress can accomplish is going to take such a charge seriously. The fact that a political candidate believes this to be an effective argument tells us a lot about that candidate’s respect for the intelligence of the average voter.

There is another possibility, of course. It may be that these appeals are not simply cynical ploys based upon perceived public ignorance. It may be that the people who are running for office actually believe their own arguments. In several races around the country, candidates are promising to enact policies that are clearly unconstitutional. Others are promising to achieve economic results that are mathematically impossible. Knowledgeable folks tend to discount these statements as political games candidates play, but in at least some cases, it’s clear the candidates really don’t know any better.

It would be nice if we could simply shrug off the more embarrassing examples of electoral dysfunction, but the quality of our political candidates ultimately affects both the voting public and the public administrators trying to serve that public.

Just as having a crazy boss makes a private-sector worker’s job more difficult, electing people to set policy in areas they don’t understand is a major barrier to public problem solving. If members of the House Science and Technology Committee reject evidence of global climate change (last year, one member reassured a panel of climate scientists that we don’t need to worry because after the flood, “God promised in Genesis that He would not destroy Earth again, and I believe God”), where will we find the human and fiscal resources necessary to combat global warming and reduce carbon emissions? If members of the Texas Board of Education reject evolution and choose creationist textbooks that are then adopted for use throughout the country, how do conscientious science teachers do their jobs? For that matter, where will we find the next generation of competent biologists and doctors?

There are a number of things individuals might do to help clean up the current mess that is our election system. We can visit fact-checking sites to vet campaign pronouncements. We can work to reform the redistricting process. We can sign on to one of the various efforts to reverse Citizens United – the case that opened the money spigot that became the gusher of SuperPac spending. Those of us who are educators must work to raise the levels of civic literacy in this country.

And we all need to withhold our votes from those who run campaigns geared to public passions and popular ignorance.

We need to close the great disconnect.

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I Sure Hope This Is Correct..

Most of us have participated at some point in the (largely unanswerable) debate about “nature versus nurture.” Are humans hard-wired to do thus-and-so, or have we been socialized into a culture that expects/rewards it? I recently came across an article addressing a related issue: is our evident tribalism, our “us versus them” default, genetic? Or is it attributable to culture?

Here’s the lede

More than 200 million people were killed in the 20th century due to war and acts of genocide. Many of these conflicts were rooted in ethnic, national, religious, political, or other forms of identity-group conflict. The 21st century is already filled with similar horrors. For many scholars and much of the public, this pattern of between-group conflict emerges directly from humanity’s deep, evolved sense of “us” vs. “them.” To state it simply, human nature is “tribal.” It’s how we built cities, nations, empires. It’s also how each one of those things has crumbled.

But this is not true. Human intergroup conflicts and how they relate to human nature are neither about being “tribal” nor about some evolved, fixed hostility between “us” and “them.”

The argument isn’t that humans don’t create divisions/antagonisms with those they encounter; clearly, “we have the capacity to classify and develop mental shortcuts to use classifications once we have created (or learned) them”. The point is, however, that categories like “us” and “them” are flexible. They need not set up what the author calls “a conflictual relationship.” Neurobiologists have determined that the biological bases of that classification process aren’t “hard-wired.”

Rather, our neurobiology reflects a highly flexible system that can represent the self and others. Additionally, how “us” and “them” are divided can shift quickly and dynamically. This is a very different reality from the assumption of a natural, inherent “us vs. them” mentality.

Scientists have also found that humans have the capacity to have “harmonious interdependent relationships that cross group boundaries.” (Sociologists call those relationships “bridging social capital.”)

Decades of study of intergroup dynamics in primate societies, human foraging groups, and small scale societies reveals that natural selection has shaped a greater reliance on tolerant between-community relationships in humans than in any other primate species (or possibly any other mammalian species).

Even the argument that the “us vs. them” mode of existence came into being with the evolutionarily recent advent of agriculture, cities, states, and nations is not correct. Humans are neither Hobbesian beasts nor Rousseauian egalitarians; we are a species that is characterized by between-group relations that are complex and dynamic, good and bad. There is no doubt that between-group conflict had a role in our evolution. But the fossil and archaeological evidence casts substantial doubt on whether such conflict was prevalent at the level and pervasiveness to support an “us vs. them” human nature argument.

The author takes offense at the use of the term “tribalism” as a shorthand for the “us versus them” thesis–a use to which I plead guilty. He points out that the term “tribe”  identifies a societal structure that is “older,” more “primitive,” and less civilized than European forms of society, and argues that the term thus carries misleading historical and cultural assumptions. I’m not sure I agree with that characterization, but I do see his point.

But that does not mean humans are naturally peaceful or always getting along. No other species creates cash economies and political institutions, changes planet-wide ecosystems in a few generations, builds cities and airplanes, arrests and deports its members, drives thousands of other species toward extinction, and intentionally hates and decimates other groups of humans. But why all this is the case is not a simple “us vs. them” story.

The author argues that invoking the notion of “tribalism” for the world’s problems is misleading–it suggests that our conflicts are pre-ordained by our hard-wiring, when the various ways in which we “slice and dice” our fellow humans is far more malleable. We are not biologically-impelled to fight those who are dissimilar, and we are capable of defining and redefining those dissimilarities in a multitude of ways.

Today, conflict between groups, peoples, and identity clusters are entangled with extreme economic inequality and the ongoing violence of nationalism, religious conflict, racism, and sexism — all complex realities with histories, dynamic social processes, and multiple, often different, factors shaping outcomes. There is no simple “natural” explanation for the messes we create.

Ultimately, it’s the culture that determines whether we prize co-operation or conflict.

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Send In The Robots

Don’t bother; they’re here.

Along with all the other causes of social upheaval–political polarization, Russia’s increasingly unnerving nuclear threats, escalating climate change, global inflation…the list goes on…the displacement of millions of workers by automation is getting closer and closer. Maybe–as yesterday’s post suggested–this is just the start of a brave new economy. Or not.

It has always been a mystery to me why workers in and out of unions have focused all their attention and anger on off-shoring, the movement of factories to countries with lower labor costs and the ability to evade rules protecting the environment. That movement has clearly disadvantaged American workers, but it pales in comparison to the steady, seemingly inexorable march of the machines–a march they’ve basically ignored.

When I was young–admittedly a very long time ago–attendants pumped our gas. In offices, rows of secretaries typed documents for lawyers and managers, using carbon paper for the copies. Clerks checked people out at the grocery store, and we paid with cash we got from a teller, not an ATM. The list goes on. And on.

Most of us don’t think about those those clerks and secretaries, bank tellers and gas station attendants who have been replaced by automation, but that is actually what robotics looks like–not like Data or even R2D2.

Consider Flippy.

Flippy is the robot described at the link; it is making the French fries at White Castle .

The fryer station is hot and it’s dangerous. It’s frequently where workplace accidents occur. It’s also where the drive-through gets jammed up at night with people waiting on their loaded fries and chicken rings.

So Miso let Flippy keep his jaunty name but re-engineered him to start dipping fries. White Castle bought in, installing Flippy in a Merrillville, Ind., location and then several others around the country, with the aim of having 100 over the next few years. Jack in the Box execs zipped up to Pasadena for a demo.

Fries are just the beginning. Miso Robotics–the company that came up with Flippy– is developing a coffee forecaster-maker-pourer for Panera. It has also begun work on Sippy, a drink fulfillment robot that pours, seals and labels beverage orders; Sippy has already been ordered by Jack in the Box .

Then there’s Chippy, which will soon be frying and seasoning fresh tortilla chips at Chipotle.

The robots, with their articulated arms, multiple cameras and machine learning, excel at those mind-numbing tasks restaurant workers have to repeat again and again. And they aren’t sniffy about working the graveyard shift.

“We realized for a robotic solution to be a real solution for our customers, it had to have a really high customer return on investment. Which meant it had to take a meaningful amount of labor off the table,” Bell said.

As various companies test and perfect these automated substitutes for workers, it’s easy to see their appeal. Robots work 24/7, don’t need breaks, don’t shirk when the boss isn’t looking, don’t argue with (or sexually assault) co-workers, don’t get sick or require benefits.

They are also currently pricey–although as production ramps up, prices will undoubtedly come down.

But now — with restaurants facing a protracted labor shortage and robotic technology becoming both better and cheaper — restaurant brands are doing new math. How long before an initial technology investment pays off? How long will it take to train human employees to work alongside robot co-workers? And, ultimately, how many restaurant jobs will be permanently commandeered by robots?

It is that last question that will challenge policymakers. I’ve posted previously about the likely disruption when self-driving cars and trucks are safe enough to take to the roads. Millions of Americans currently make their living driving everything from big rigs to school buses to Amazon delivery vans to taxis, Ubers and Lyfts. It is highly unlikely that a significant number of those people will be able to retrain and find alternate employment.

Fast-food establishments currently face a different labor landscape, of course.

If robots are cheaper and more efficient, experts wonder, will the more than 3 million entry-level fast-food jobs be ceded to robots entirely in the future? For now, the thorny problem is there just aren’t enough humans who want to do the work.

According to the National Restaurant Association, 65 percent of restaurant owners still say finding enough workers is a central problem. In the Great Resignation, prospective hospitality workers were being lured back with the promise of fancy fitness club memberships and 401(k) plans.

Whatever happens to restaurants, automation won’t stop there.

In addition to earning our daily bread, most of us derive substantial meaning from our jobs. What will happen when those jobs are gone? I don’t know about the rest of you, but I don’t have a clue.

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