To all those who contacted me–the problem with access this morning was a technical glitch, and has been fixed by my genius webmaster (aka son).
It has been gratifying to see how many of you cared enough to let me know!!
CommentsWhat Women Want
Less than one week to go…Polls suggest that the gender gap will be decisive.
Speaking of the “women’s vote,” on the hundredth anniversary of the expansion of the franchise to women, Pew fielded a survey to see just where we females see the movement for gender equality–how far have we come, and how far do we still have to go?
Among those who think the country still has work to do in achieving gender equality, 77% point to sexual harassment as a major obstacle to women having equal rights with men. Fewer, but still majorities, point to women not having the same legal rights as men (67%), different societal expectations for men and women (66%) and not enough women in positions of power (64%) as major obstacles to gender equality. Women are more likely than men to see each of these as a major obstacle.
Many of those who say it is important for men and women to have equal rights point to aspects of the workplace when asked about what gender equality would look like. Fully 45% volunteer that a society where women have equal rights with men would include equal pay. An additional 19% say there would be no discrimination in hiring, promotion or educational opportunities. About one-in-ten say women would be more equally represented in business or political leadership.
I look at the charts and graphs that put numbers to these observations, and I certainly have no disagreement with the essential observations. Women are still not treated as equal in either business or political life, and the obstacles are pretty much what is portrayed.
Maybe it’s because I’m old, or maybe it’s because my own insights have been formed by personal experience–I was among an early cohort that deviated from traditional expectations for women– but I think achieving genuine equality is more complicated than such surveys suggest. Modern laws and fair-minded judges will only take us so far (and needless to say, we’re having enough trouble achieving that).
Social change is slow and difficult.
Science and technology have been huge contributors to a world in which women can be equal. It is hard to overstate the impact of the birth control pill, for example; when women could reliably control their reproduction, they were suddenly free to enter the working world. It was no longer necessary to choose between motherhood (or a sex life) and a career. You could plan for both. Meanwhile, technology has remade the world of work, making brute strength far less important than mental acuity, and opening new career possibilities for which women’s skills were well-adapted.
Social acceptance of these changes has been much slower than the changes themselves. When I graduated from law school, male attorneys were reluctantly adjusting to the newfangled emergence of what many called “lady lawyers.” Retail establishments and banks were still limiting the extension of credit to “male breadwinners.” Social expectations ingrained over generations don’t turn on a dime.
Some people welcome change. Most don’t. My students, who have grown up in a world no longer dominated exclusively by white Christian males have a very different approach to gender equality (not to mention racial equality and sexual orientation) than the old white men who were socialized in a very different time.
White men now in their 70s and 80s were born into a world that promised them a certain status, and a significant number of them–thankfully, not all– deeply resent the “uppity” women and minorities who they believe have denied them their rightful place atop society. Their misogyny gave us Donald Trump, among other things.
That generation is dying off, and my granddaughters live in a much more equal world than the one in which I grew up. It isn’t perfect, but it’s much better.
Recognizing that attitude change is generational is certainly no reason to accept discriminatory laws, or to shrug off offensive sexual behaviors, or to stop pushing for fundamental gender fairness.
On the other hand, keeping our expectations realistic helps keep our blood pressure down.
Meanwhile, we need to vote!
CommentsPrivate Prisons And The 13th Amendment
If I was compiling a list of policies the next administration needs to change, it would be truly enormous, and fairness compels me to acknowledge that not all of the entries can be attributed to Trump. Previous administrations got swept up into privatization ideology, and some of the consequences weren’t pretty.
Privatization as practiced in the U.S. wasn’t ever true privatization. In England, for example, Thatcher sold off railroads and steel mills that were then operated as private businesses–they paid taxes, and if they failed, they failed. In the U.S., what we call “privatization” is really “contracting out”–government agencies entering into contracts with private companies or not-for-profit organizations to assume primary responsibility for delivering a government service or performing a government function. Sometimes, that made sense. Often, however, it has simply been a new form of patronage.
Obviously, there’s a big difference between contracting with a private company for trash removal and authorizing a for-profit company to operate prisons.
Researchers have pointed to the often-horrific consequences of privatizing prisons, so I was interested in a lawsuit that is evidently working its way through the system in Arizona.
The complaint enumerates the issues involved in Arizona’s privatized prisons, pointing out the perverse incentives that govern performance under such contracts. Nothing really new there–the research has long illuminated the extent to which the profit motive is incompatible with proper functioning of penal institutions.
What was new (at least to me) and intriguing was the plaintiff’s assertion of a 13th Amendment claim. The 13th Amendment abolished slavery and involuntary servitude. Here are pertinent portions of the argument from the Complaint.
The amendment prohibits “all forms of involuntary slavery of whatever class or name.” Slaughter-House Cases, 83 U.S. 36, 37 (1872). That means it “denounces a status or condition, irrespective of the manner or authority by which it is created.” Clyatt v. United States, 197 U.S. 207, 216 (1905). The amendment is “a promise of freedom” which includes “freedom to go and come at pleasure and to buy and sell when [one] please[s].” Jones, 392 U.S. at 443 (internal quotation marks omitted). It is certainly not limited to those with African ancestry. “It was a charter of universal civil freedom for all persons, of whatever race, color, or estate, under the flag.” Bailey, 219 U.S. at 240-41.
“The most basic feature of ‘slavery’ or ‘involuntary servitude’” is “the subjugation of one person to another by coercive means.” United States v. Nelson, 277 F.3d 164, 179 (2d Cir. 2002). Professor Akhil Amar uses this definition of “slavery”: “A power relation of domination, degradation, and subservience, in which human beings are treated as chattel, not persons.” Akhil Reed Amar, Child Abuse As Slavery: A Thirteenth Amendment Response to Deshaney, 105 Harv. L. Rev. 1359, 1365 (1992)…
Plaintiffs are being held in cages for the financial benefit of private entities which make billions of dollars in revenue from this captivity.The private prisons receive the “fruits of prisoners’ economic value and labor.” In short: the prisoners have been effectively transformed into property, valued only in terms of their “compensated man-days.” The allegations in the Complaint plausibly state that their status falls within the Thirteenth Amendment’s scope. If holding people in captivity in this way were happening to anyone but prisoners, everyone would call it what it is: slavery. It is at minimum “involuntary servitude.”
This argument gains persuasive power from the national history Americans are only beginning to admit. Books like These Truths by Jill LePore and The New Jim Crow by Michelle Alexander testify to racists’ unremitting efforts to keep African-Americans in servitude. Criminal Justice research supports their recitation of that history, the disproportionate imprisonment of Blacks and poor people, and more recently, the unconscionable behaviors of private prison companies.
Criminals should be jailed. Government clearly has the right and duty to protect its citizens and to pursue public safety by incarcerating or otherwise sidelining dangerous people. That said, there are few governmental tasks less suited to “privatization” and the pursuit of profit.
Put this reform on our very extensive list.
CommentsDaring To Hope…
A week from tomorrow is Election Day–finally! If nothing else, it will mark the merciful end of the interminable and overwhelmingly awful commercials for local candidates. My abiding hope is for an enormous turnout and an overwhelming BLUE result.
There are some anecdotal indications that such a result is possible. Turnout for early voting has been more than robust–over a week ago, the number of early voters had already exceeded the total early vote in 2016, and it’s hard to imagine that turnout reflects enthusiastic support for Trump.
A FaceBook friend recently posted about standing in the long line for early voting in his small, reliably red Indiana town. A car drove past the line, and the driver shouted “How long have you been waiting?” Someone from the line shouted back “Four years!” and the whole line applauded.
Tim Alberta is a writer/reporter for Politico; as we’ve gotten closer to election day, he has been writing about his “hunches,” which he bases on literally thousands of interactions with voters around the country.
A couple of weeks ago, I decided it was time to start unpacking my notebookto share the most significant and unavoidable trends I’ve spotted over the past year. Inching out on a limb, I wrote about four gut feelings I had with just four weeks remaining until Election Day: Trump fatigue peaking at the wrong time; the only “silent majority” I’ve encountered on the ground; the dangers posed by mass absentee voting to the Democratic Party; and the historic deficit Trump could suffer among women voters.
With three weeks to go until Election Day, I inched out a bit farther, describing the changing landscape (literally) of yard-sign politics, the early indicators of explosive, unprecedented turnout and the fork in the road Republicans could face as soon as November 3.
In last week’s column, with just two weeks to go, he shared two more “strongly held” hunches: that the suburban realignment that has been widely reported is not–as most reporting has suggested–just a female phenomenon; and that we are “overthinking” this campaign.
With respect to suburbia, Alberta writes
Twice in the past week, I’ve been given reliable polling from the ground in battleground states that suggests something that was once unthinkable: Trump is losing college-educated white men for the first time in his presidency. The margins aren’t huge, but they are consistent with a trend line that dates to 2018, when Republicans carried this demographic by just 4 points. What the numbers suggest—in both private and public polling—is that Biden is no longer just walloping Trump among white women in the suburbs, he’s pulling ahead with white men there, as well.
We shouldn’t get carried away with this just yet. Republicanism is deep in the DNA of many of these voters, and it wouldn’t be surprising to see a last-minute lurch back in the direction of their political home.
Still, the fact that Trump is sweating college-educated white men two weeks out from Election Day tells you everything you need to know about the state of the race at this moment.
With respect to our “overthinking,” he says
More than 219,000 Americans are dead from a global pandemic. Millions of adults are home from work and millions of kids are home from school. The streets of big cities and small towns have been convulsing with anger and protest and even sporadic violence.
All of this is politically significant. All of it has contributed to an election-year environment that is fundamentally detrimental to the incumbent. But if Trump loses, the biggest factor won’t be Covid-19 or the economic meltdown or the social unrest. It will be his unlikability.
There’s an old political adage that people ultimately vote for the person with whom they’d like to have a beer. To belabor the obvious, that isn’t Donald Trump.
All across America, in conversations with voters about their choices this November, I’ve been hearing the same thing over and over again: “I don’t like Trump.” (Sometimes there’s a slight variation: “I’m so tired of this guy,” “I can’t handle another four years of this,” etc.) The remarkable thing? Many of these conversations never even turn to Biden; in Phoenix, several people who had just voted for the Democratic nominee did not so much as mention his name in explaining their preference for president.
Trump’s overwhelming need for constant attention hurts him. As Alberta points out, Trump has made himself more accessible than any president in history. He has used the White House and Twitter as performance arenas, and “like the drunk at the bar, he won’t shut up.”
Many of his own supporters are tired of having beers with Trump.
In any other year, the numerous anecdotes and the polling would reassure me–but the memory of 2016, together with Republicans’ overwhelming assault on vote integrity–are keeping me on the edge of my seat.
Fingers (and toes) crossed….
CommentsLet’s Talk About Originalism
Today, the Senate is scheduled to elevate Amy Coney Barrett–a rigid ideologue who has never tried a case– to the Supreme Court. During the fiasco that has substituted for her vetting, we’ve heard a lot about “originalism.”
A while back, a reader of this blog reminded me of Thomas Jefferson’s opinion on originalism, contained in a letter he wrote to Samuel Kercheval on July 12, 1816. Jefferson wrote
“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.”
The philosophy of “originalism” was popularized by Antonin Scalia, who tended to employ his version of it when he disapproved of those “changes in manners and opinions” and ignore it in the many cases where it was clearly unworkable.
As I have previously explained, there is a version of originalism that does work, that does keep the constitution from being simply what nine people in black robes say it is.
In that version of originalism, courts are required to protect the values and principles that the founders were clearly trying to protect. James Madison could never have anticipated new methods of communication–radio, movies, television, the internet–but he had very clear ideas about protecting expression against government censorship. He, Jefferson and several other Founders also clearly expressed their beliefs in the importance of separating government from religion. Courts today must honor the Founders’ devotion to those and other principles embedded in and protected by the Bill of Rights.
Fidelity to those principles is the only workable and intellectually honest form of originalism, and as Edwin Chereminsky recently pointed out in an editorial for the New York Times, it is definitely not the originalism of Amy Coney Barrett.
Chereminsky is a prominent legal scholar, and Dean of Berkeley’s law school, and he points to the numerous problems with Barrett’s purported “public” originalism–the notion that the constitution must be interpreted to mean what the public thought it meant when it was ratified.
In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.
Throughout American history, the Supreme Court has rejected originalism and protected countless rights that cannot possibly be justified under that theory. For example, the court has interpreted the word “liberty” in the Constitution to protect the right to marry, to procreate, to custody of one’s children, to keep the family together, to control the upbringing of one’s children, to purchase and use contraceptives, to obtain an abortion, to engage in private adult consensual same-sex sexual activity, and to refuse medical treatment.
The Dean points out that rejection of Barrett’s understanding of originalism is anything but new. He quotes the 19th century Chief Justice, John Marshall, who wrote that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.” Furthermore,
It is a myth to say that an “original public understanding” can be identified for most constitutional provisions because so many people were involved in drafting and ratifying them. In teaching constitutional law, I point to the many instances where James Madison and Alexander Hamilton disagreed about such fundamental questions as whether the president possesses any inherent powers.
Chereminsky makes a point I also make to my classes: how can “original public meaning” guide today’s courts in deciding whether the police can take DNA from a suspect to see if it matches evidence in unsolved crimes, or obtain stored cellular phone location information without a warrant?
The “public originalism” invented by Scalia and embraced by Barrett is an ahistorical cover intended to obscure and justify the judicial activism they profess to deplore–an intentionally dishonest construct allowing judges to favor the privileged and protect the status quo.
Placing Barrett on the Supreme Court dishonors both the Court and the Senators who vote to confirm her.
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