Better Late Than Never…I Guess

Law students–and, one hopes, high school history students–all learn about the case of Plessy v. Ferguson. It established the doctrine of “separate but equal,” a doctrine that ensured that Black folks could continue to be separated and definitely not equal, a situation that would be legally sanctioned until the decision in Brown v. Board of Education.

A quick summary: In 1892, a White-appearing African American resident of New Orleans named Homer Plessy bought a ticket on a train; he boarded the Whites-only car, then identified himself as Black and refused to sit in the car designated for Black people. He was arrested, and the case made its way to the Supreme Court, which rejected Plessy’s argument that his constitutional rights had been violated.

The Court ruled that a law that “implies merely a legal distinction” between White people and Black people wasn’t unconstitutional. As a direct result of that ruling, restrictive Jim Crow legislation and separate public accommodations based on race became commonplace.

It wasn’t until 1954 that Plessy was overruled; the unanimous Brown v. Board of Education decision held that separate was inherently unequal. The decision prompted an enormous backlash among White Americans, especially in the South, where hundreds of private schools (segregation academies) drained White children out of public school systems.

Ever since Brown, Americans have been engaged in a culture war over efforts to actually live up to the promise of the Equal Protection Clause of the 14th Amendment. I document many of the contemporary battles of that culture war in this blog. Although progress has been painfully slow–and although sometimes, as with the travesty that was the Kyle Rittenhouse trial, we seem to be regressing– we really have made headway.

One sign of that progress was the news last weekend that Louisiana officials have voted to pardon Homer Plessy–a mere 125 years after his loss in the Supreme Court.

Now, 125 years after the shameful decision that codified the Jim Crow-era “separate but equal” fiction, the namesake of that famous case, Homer Plessy, may be pardoned. The Louisiana Board of Pardons unanimously approved a pardon Friday, according to the Associated Press, sending it to Gov. John Bel Edwards (D) for final approval.

Another–and positively heartwarming–sign of progress is the fact that descendants of Homer Plessy and John Howard Ferguson, the Judge who ruled against Homer Plessy at the trial court level, have come together to establish a foundation they have named the Plessy AND Ferguson Foundation.

From that foundation’s website:

After meeting through mutual friend and We As Freemen: Plessy v. Ferguson author Keith Weldon Medley, Keith Plessy and Phoebe Ferguson began a partnership that eventually blossomed into the Plessy & Ferguson foundation. Together, they visit schools, festivals, and academic or historical institutions, spreading their message that their mutual history can be a tool to create unity and understanding. By coming together as Plessy and Ferguson, they have seized the opportunity to pick up the torch, keeping history alive, and sharing their vision for true democracy in the 21st century.

CBS Saturday ran an interview with Keith Plessy and Phoebe Ferguson last Saturday, and it’s worth watching. They tell the story of how, after Medley introduced them in 2004, they decided to form the Plessy & Ferguson Foundation, and how they have subsequently worked to have five historical markers honoring Homer Plessy added to the New Orleans landscape.

But as the Washington Post article linked to above notes, and historians have documented, those markers and that recognition don’t — and can’t — include a historical marker at Plessy’s old address on Claiborne Avenue. His home was demolished in 1968 as part of an urban renewal project that uprooted a Black community to make way for Interstate 10–one example among many of the deliberate siting of interstate highways that destroyed Black neighborhoods or separated Black residential areas from White ones in numerous cities around the country, very much including Indianapolis.

That’s another piece of our history that needs repairing…

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The Intriguing Question

Ultimately, all societies must debate and answer a fundamental question: how should humans live together? What should–and shouldn’t– governments do? What are governments for?

Yesterday, I marveled at the bilge being produced–and consumed–by the GOP. The ability to peddle and sell it comes back to the growing differences among Americans when they answer that foundational question. Michael Flynn thinks government should impose religious conformity; a number of Republican officeholders think government should favor White Christian heterosexual males ,and they all appear to believe government has an obligation to abet GOP lawbreakers.

The current mess that those prejudices have made of American governance is one thing. A more existential issue is whether the various countries on planet Earth can come together to avert the worst consequences of climate change. According to a fascinating research paper from Yale, it turns out that the answer to that (seemingly unrelated) question also comes back to the philosophical one: what do citizens of a country think an ideal society should look like? What–and how much– do they want their governments to do?

The researchers concluded that the answer to that question is in the process of change. Here’s the lede to their report (I’ve omitted the citations.)

Individuals’ attitudes toward climate change risks and solutions are shaped by personal and social factors other than knowledge of climate change alone. One such factor is differing cultural worldviews, or values regarding how society should be structured and the role of government in addressing problems.

Two important types of cultural worldviews are egalitarianism and individualism. People with a more egalitarian worldview tend to believe that society should promote equality, social justice, participatory democracy, and diversity, and are generally more concerned about environmental hazards including climate change. They also tend to favor government actions to solve societal problems, including increased environmental regulations. In contrast, people with a more individualistic worldview are more likely to believe that society should promote individual liberty, autonomy, and opportunity. They tend to be less concerned about environmental hazards and favor greater freedom for industry. As a result, they generally oppose government intervention and environmental regulations.

Our Climate Change in the American Mind surveys have repeatedly included questions over the past 12 years that measure these worldviews among the American public. Here we report on how several key measures of these worldviews have changed among registered voters over time.

Not surprisingly, the study found that Democrats and Republicans these days have very different cultural world-views, with Democrats tending to be more egalitarian and Republicans tending to be more individualistic. The researchers report that, while their data suggests that Democrats have become more egalitarian since 2008– Republicans have remained “highly individualistic.”

Democrats are more likely to support social programs, to be concerned about the wealth gap (both domestically and between rich and poor countries), and to support various government regulations. Large majorities of Democrats think that discrimination against minorities is a very serious problem, while only 4 in 10 Republicans agree.

The Yale researchers were focused on the consequences of those very different world-views on government efforts to combat climate change, and that concern is certainly appropriate. However, I was intrigued by other questions raised by the research.

The most obvious of those questions is: what happens when political identity reflects an individual’s moral commitments? As a number of political scientists have noted, the days when both parties sought votes from the moderate middle and thus erected bigger “tents”–the days when there were a number of philosophical overlaps– are long gone. Political identity has taken on the aspects–and fervor– of religion. You can compromise on tax rates when the issue is how to raise revenue without stifling economic growth; that compromise is out of reach when one party sees taxation through a social justice lens and the other sees it as theft.

Less obvious–and arguably more consequential–is a question of language, of definition of terms. I consider myself a strong proponent of individualism and individual rights, but I see those rights in the context of America’s constitutional system. I find myself increasingly appalled by positions asserted by self-described “defenders of individual rights”: the “right” to refuse vaccination (really, the right to endanger others); the “right” to access public services without paying one’s fair share/dues; the “right” to ignore laws with which one disagrees, or that are seen as an inconvenience; the “right” to deny other Americans their equal rights….

We need to draw a line between the actual human rights that a free society must respect, and selfishness masquerading as individualism.

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Living In Wacko World

There is much that I don’t understand about the Americans who continue to support Donald Trump and the Big Lie. There’s even more I don’t understand about today’s GOP, which looks absolutely nothing like the political party to which I devoted some 35 years.

Here’s a smattering of what I don’t get:

  • How do these people explain away the hysterical refusal of the Trump mob to testify to Congress or hand over documents? If they have nothing to hide, why would they act this way? From my lawyering days, I still remember the concern of criminal defense lawyers that a client’s failure to testify would be taken by a jury as evidence that the client had something to hide; in fact, there was a standard (and undoubtedly ineffective) jury instruction to the effect that the jury should refrain from making that obvious assumption.
  • How do they justify the rage and recriminations focused on the few members of the GOP who voted to repair the nation’s decaying infrastructure–especially when Trump tried and failed for four years to have his own “Infrastructure week”? Don’t they drive on our crumbling roads and worry about our failing bridges? How do they explain to themselves and others the GOP insistence that defeating anything  President Biden wants is more important than actually getting things that obviously need to be done, done?
  • What in the world prompts Republicans to threaten “reprisals” for the indictment of Steve Bannon? Bannon was indicted for contempt of Congress. There is no quarrel with the accuracy of the charge: he publicly refused to testify to the committee investigating the January 6th insurrection, and just as publicly refused to provide documents Congress identified. If individuals can ignore Congressional subpoenas, if they can thumb their noses at lawful investigations, we are really in Wild West territory. Yet members of the GOP are warning that Democrats’ efforts to force Bannon to comply “paves the way for them to do the same if they take back the House in 2022.”  According to the Washington Post report linked above, “most high-profile GOP leaders have quickly turned Bannon’s indictment into the latest litmus test for loyalty to the former president.”

This is evidently where we are: if the rule of law gets in the way of partisan loyalties, well, the rule of law must go.

What must also go in this world-view is the First Amendment of the  U.S. Constitution.

Last week, Trump’s disgraced former national security advisor, former General Michael Flynn, spoke at a “Reawaken America” conference in San Antonio, Texas. (According to multiple reports, the conference was intended to reinforce the Big Lie that the 2020 election was stolen, and to support the argument that vaccine requirements infringe Americans’ liberties.) Flynn told the audience: “If we are going to have one nation under God, which we must, we have to have one religion. One nation under God, and one religion under God.”

The former national security adviser also characterized the investigation into the riot as “the insurrection crucifixion” and likened House Speaker Nancy Pelosi to Pontius Pilate. “This is a crucifixion of our First Amendment freedom to speak, freedom to peacefully assemble. It’s unbelievable,” Flynn said.

Flynn’s speech was one of the more explicit endorsements of what the Rightwing political fringe has clearly wanted–and what respect for the rule of law has impeded–a “Christian” nation. (Actually, a nation ruled by White Christian males.)

This is hardly the first time Flynn gets attention for his statements that seem to go against some of the basic tenets of American democracy. In May, Flynn said at a QAnon conference that a military coup like the one that took place in Myanmar “should happen” in the United States. Flynn was Trump’s national security adviser for less than a month and resigned after it was revealed he lied about conversations with the Russian ambassador to the United States. Flynn twice pleaded guilty to lying to the FBI and Trump pardoned him.

What I don’t get–what I cannot wrap my head around–is how non-mentally-ill Americans (even those who get their “news” from Fox) can look at these and so many other examples of the GOP assault on logic, democracy, reality and the rule of law and tell themselves that they are the behaviors of “true Americans.”

If gerrymandering delivers Congress to the GOP next year, we are going to be living in a very different country than the one in which most of us grew up.

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This Isn’t Governing–It’s Pandering

When he was alive, Harrison Ullmann, a former editor of NUVO, always referred to the Indiana General Assembly as “The World’s Worst Legislature.” I know a lot of states have been competing for the title lately, but he wasn’t far off.

When I was scanning the (embarrassingly thin) news covered by the Indianapolis Star, I saw that the Republicans who have gerrymandered a super-majority in Indiana’s General Assembly are preparing for the upcoming session by discussing plans to cut taxes. After all, thanks to the federal administration they routinely excoriate, the state is currently flush.

The House is considering both a reduction in business equipment property taxes and income tax rate reduction. Senate leaders have at least committed to evaluating whatever legislation the House sends their way. 

Indiana ended its 2021 fiscal year at the start of July with nearly $4 billion in reserves due in part to an influx of stimulus money, unintentionally triggering an automatic refund to taxpayers worth $545.3 million. Since then, revenues have exceeded April estimates by over $560 million…

House Speaker Todd Huston, R-Fishers, wants to see a longer lasting tax cut — assuming revenues continue to exceed expectations —  instead of relying on another automatic refund to give taxpayers more money in their pockets.

“My biggest fear is if we keep it, we’ll spend it,”  Huston said Monday during the Indiana Chamber’s Legislative Preview.

Well, goodness gracious Mr. Huston–we taxpaying citizens sure wouldn’t want that! We wouldn’t want to see you use any of those dollars to patch a few of the gaping holes in Indiana’s pathetic social safety net (TANF pays a munificent $130 per month to households with one parent and one child).

We Hoosiers know it would be too picky to expect you to earmark some of those funds to maintain any of the roads and bridges that the federal infrastructure bill will finally repair–you know, the infrastructure you “fiscal conservatives” have ignored for years.

For that matter, it is highly unlikely that the federal bill will provide Indiana with monies to repair all the crumbling roads and dangerously deteriorated bridges that need such repair. In a state served by a less irresponsible legislature, those “extra” funds might actually be put to that use. (There are 19,327 bridges in the state, and over 1100 of them are classified as structurally deficient. The state has identified 3,198 that need repairs, and has estimated the cost of doing those repairs at $2.3 billion. The feds are highly unlikely to cover all of that–even with a Hoosier as Transportation Secretary.)

We also wouldn’t want to use that money to improve public education, or to replace any of the education funding that Indiana’s legislature has siphoned off and sent to private, mostly religious schools. After all, we aren’t (yet) the worst–Indiana ranks 47th among the states for per pupil spending. That means there are three states worse than us, so no worries, right? And we do even better in teacher pay–why, we are way up there at 38th!

I hate to break it to you, GOP legislators, but “fiscally conservative”lawmakers don’t continue to ignore the multiple needs of the state in order to use an obviously temporary influx of dollars to reward the business interests that donate to their campaigns. They don’t cut taxes so that they can plead poverty when urban areas need added funds for public safety or public works, and so they can keep telling teachers the state can’t afford to pay them competitively. 

Fiscally prudent lawmakers establish sinking funds to retire bonds, plan for the ongoing maintenance of infrastructure, and pay TANF recipients enough to buy food and diapers. They fund education adequately, recognizing the importance of an educated workforce and polity. They don’t act like pigs in slop, “spending” a temporary windfall to curry favor with their donors and supporters while shortchanging everyone else.

Honest to goodness, Indiana! Stop proving Harrison Ullmann’s point!

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Electile Dysfunction

I have posted several times about the importance–the absolute necessity–of Congress passing the voting rights act. Among other important things this law would accomplish, it would do what the Supreme Court has shamefully refused to do–outlaw the gerrymandering that makes a mockery of democratic systems.

I am certainly not the only person advocating for passage of legislation that would  protect “one person, one vote.” Apparently, the message is less effective when delivered via textual arguments in columns or on blogs by people like yours truly–so when I saw this video, I knew I had to share it.

A favorite line: “passage may cause a Federal condition called accountability.”

Click through and enjoy, then pass it on!

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