Heather Cox Richardson's Blog, page 144
July 5, 2023
July 5, 2023
Yesterday the official account of the Republican National Committee tweeted Independence Day greetings with a graphic of the Liberian flag, which has one star, rather than that of the United States, which has fifty.
Even more troubling was the tweet from Senator Josh Hawley (R-MO) attributing to founder Patrick Henry a false quotation saying that “this great nation was founded, not by religionists, but by Christians; not on religions, but on the Gospel of Jesus Christ.” Historian Seth Cotlar noted that the quotation actually came from the April 1956 issue of a virulently antisemitic white nationalist magazine, The Virginian.
Also yesterday, Trump-appointed judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana issued a preliminary injunction saying the First Amendment prevents the government from trying to stop the spread of disinformation.
Doughty has become the judge Republican attorneys general seek out in their challenges to the Biden administration, and in this case, that judge shopping appears to have paid off. In a lawsuit brought by the attorneys general of Louisiana and Missouri, Doughty temporarily prevented employees of the Federal Bureau of Investigation and the Department of Health and Human Services from talking to social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
At stake is the belief among right-wing figures that government officials and social media companies have teamed up to silence them, although in fact, studies show that social media algorithms actually amplify right-wing political content and that social media companies are reluctant to remove it out of fear of backlash from extremists. Right-wing complaints stem from the removal of disinformation during the pandemic, and of accounts linked to the violence of January 6, 2021.
For years, the government has worked with social media companies to try to address terrorism, images of child sexual abuse, and disinformation about the pandemic and elections. But disinformation has become a key political tool for the Republicans, and going into the 2024 election season, they have doubled down on the disinformation that the 2020 presidential election was fraudulent and flooded the media with that lie.
Fittingly, as Philip Bump pointed out in the Washington Post today, Doughty’s injunction accepts right-wing allegations at face value, meaning he cites as a mark against the administration something that, in fact, didn’t happen.
Foreign accounts have amplified right-wing lies, and the injunction specifically targets the FBI’s Foreign Influence Task Force, which leads the push to identify and stop malign foreign influence in our social media.
But there is a new twist there: Russia’s Yevgeny Prigozhin—the man who recently led his Wagner Group soldiers toward Moscow to demand changes in Russian military leadership—was key to the 2016 Russian disinformation campaign, and Reuters reported on Sunday that he announced on Saturday that his media company, including a troll factory that sought to influence public opinion in the U.S., is shutting down.
That the injunction claims to protect free speech by forcing people to stop communication was not lost on observers. Harvard constitutional law professor Laurence Tribe called the injunction “blatantly unconstitutional” and noted: “Censoring a broad swath of vital communications between government and social media platforms in the name of combating censorship makes a mockery of the first amendment.” Tribe joined law professor Leah Litman to eviscerate the “breathtaking scope” of the order.
The Department of Justice appealed the order today. It will go to the right-wing Fifth Circuit Court of Appeals.
Disinformation is also behind the attempt of far-right House members to undermine the Department of Justice and the Federal Bureau of Investigation, both of which maintain the rule of law in the United States. The FBI was key to investigating Russia’s attempt to help former president Trump win the 2016 presidential election and the efforts to overturn the results of the 2020 presidential election, while the DOJ has been central to making sure that those who have broken the law are held accountable.
Right-wing Republicans, many of whom are implicated in the events surrounding the 2020 election, insist that the FBI—overseen by Trump appointee Christopher Wray—and the DOJ are improperly targeting them. They are calling for Wray to be fired and Attorney General Merrick Garland, who heads the DOJ, to be impeached. Barring that, they want to starve the department and the bureau by slashing their budgets.
Trump attacked the FBI and the DOJ from the beginning of his presidency, and today the House investigation into the FBI and DOJ includes the Oversight, Judiciary, and Ways and Means Committees. It is currently centered on right-wing insistence that President Biden’s 53-year-old son, Hunter, received a lenient deal from the DOJ and that the DOJ retaliated against an IRS whistleblower about the case. Legal analysts say that, in fact, the younger Biden got a harsher deal than others and point out that David Weiss, the U.S. attorney overseeing the case, was appointed by Trump.
On June 7, Weiss told Jordan in a letter that Garland had given Weiss full authority over the case; on June 30, Weiss wrote to deny that the DOJ had retaliated against a whistleblower, reiterating that he had “been granted ultimate authority over this matter.” Wray is scheduled to testify before the House Judiciary Committee, chaired by Representative Jim Jordan (R-OH), on July 12. Jordan is a key critic of what he claims is FBI focus on Republicans.
Disinformation was a key factor in the rise of Russian president Vladimir Putin to the authoritarian power he now holds. The importance of insisting on the rule of law was the point of a BBC report today on a brutal attack on Russian investigative journalist Elena Milashina and lawyer Alexander Nemov in Chechnya, while they were on their way to court for the sentencing of the wife of a federal judge who was kidnapped by security forces in retaliation for the activism of her son. The two were abducted, beaten, stabbed, and tortured.
“This story,” the BBC said, translating from the Russian newspaper Moskovsky Komsomolets, “is a test of whether society and the state can protect the law, in other words, itself. The law is the foundation of any state. Take it away and everything falls apart. And instead of civilization you get chaos and destruction. The law must always function and apply to everyone. In recent times, we have seen how certain people have been above the law. In place of the judge with his gavel—thugs with sledgehammers. And this is the result.”
Also yesterday, Guardian journalist Luke Harding reported that Kyiv says Russians have placed explosives on top of two nuclear reactors at the Zaporizhzhia nuclear power station. This station is in an area occupied by Russian forces. Nonetheless, Russian social media accounts are spreading the accusation that Ukraine is about to attack and damage the station.
U.S. nuclear expert Cheryl Rofer notes that the situation in Zaporizhzhia is different from the conditions that led to other nuclear crises. The Chernobyl nuclear plant in Ukraine, then part of the Soviet Union, that melted down in 1986 had a different kind of reactor, and the Fukushima reactor in Japan was fully operational right up until the moment the 2011 earthquake hit, making it much hotter than the Zaporizhzhia reactor is currently.
Regardless of the relative danger, though, Rofer reinforces the dangers of authoritarian government when she concludes: “The danger to the plant is wholly Russia’s responsibility for starting the war and occupying the plant.”
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Notes:
https://www.nytimes.com/2023/07/04/business/federal-judge-biden-social-media.html
https://blog.twitter.com/en_us/topics/company/2021/rml-politicalcontent
https://www.nytimes.com/2023/02/09/business/free-speech-social-media-lawsuit.html
https://www.washingtonpost.com/technology/2023/07/04/biden-social-lawsuit-missouri-louisiana/
https://www.politico.com/f/?id=00000189-2209-d8dd-a1ed-7a2de8d80000
https://www.washingtonpost.com/politics/2023/07/05/social-media-biden-ruling/
https://nucleardiner.wordpress.com/2023/07/04/the-danger-at-zaporizhzhia-nuclear-power-plant/
https://www.politico.com/news/2023/07/05/house-gop-escalating-doj-attacks-00104475
https://www.documentcloud.org/documents/23866522-1688232702416-20230630_out_jordan_david-weiss
Twitter:
SethCotlar/status/1676468360002043911
stengel/status/1676324020852084736
tribelaw/status/1676582650629193728
tribelaw/status/1676577438652874753
BVanGrack/status/1676347282764058626
BBCSteveR/status/1676489642969821186
lukeharding1968/status/1676312736202911756
NOELreports/status/1676252874815291392
rgoodlaw/status/1676730134248710144
July 4, 2023
July 4, 2023
As soon as I caught this image at the Holland Harbor Light in Holland, Michigan, in March, I knew I would post it tonight. Our nation is a work in progress, as it has always been, but there is a whole new generation stepping into the fray.
Happy Independence Day.
We’ll get back to work tomorrow.
July 3, 2023
July 3, 2023
And on July 4, 1776, the Second Continental Congress adopted the Declaration of Independence, declaring: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the Pursuit of Happiness.”
For all the fact that the congressmen got around the sticky little problem of Black and Indigenous slavery by defining “men” as “white men,” and for all that it never crossed their minds that women might also have rights, the Declaration of Independence was an astonishingly radical document. In a world that had been dominated by a small class of rich men for so long that most people simply accepted that they should be forever tied to their status at birth, a group of upstart legislators on the edges of a continent declared that no man was born better than any other.
America was founded on the radical idea that all men are created equal.
What the founders declared self-evident was not so clear eighty-seven years later, when southern white men went to war to reshape America into a nation in which African Americans, Indigenous Americans, Chinese, and Irish were locked into a lower status than whites. In that era, equality had become a “proposition,” rather than “self-evident.”
“Four score and seven years ago,” Abraham Lincoln reminded Americans, “our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.” In 1863, Lincoln explained, the Civil War was “testing whether that nation, or any nation so conceived and so dedicated, can long endure.”
It did, of course. The Confederate rebellion failed. The United States endured, and Americans began to expand the idea that all men are created equal to include Black men, men of color, and eventually women.
But just as in the 1850s, we are now, once again, facing a rebellion against our founding principle, as a few people seek to reshape America into a nation in which certain people are better than others.
The men who signed the Declaration of Independence on July 4, 1776, pledged their “Lives, [their] Fortunes and [their] sacred Honor” to defend the idea of human equality. Ever since then, Americans have sacrificed their own fortunes, honor, and even their lives, for that principle. Lincoln reminded Civil War Americans of those sacrifices when he urged the people of his era to “take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”
Words to live by in 2023.
July 2, 2023
July 2, 2023
On July 2, 1776, the Second Continental Congress passed a “Resolution for Independence” declaring “That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.”
Also known as the “Lee Resolution,” after Virginia delegate Richard Henry Lee, who had proposed it, the resolution was the final break between the king and the thirteen colonies on the North American continent that would later become the United States of America.
The path to independence had been neither obvious nor easy.
In 1763, at the end of what was known in the colonies as the French and Indian War, there was little indication that the colonies were about to start their own nation. The war had brought an economic boom to the colonies, and with the French giving up control of land to the west, Euro-American colonists were giddy at the prospect of moving across the Appalachian Mountains. Impressed that the king had been willing to expend such effort to protect the colonies, they were proud of their identity as members of the British empire.
That enthusiasm soon waned.
To guard against another expensive war between colonists and Indigenous Americans, the king’s ministers and Parliament prohibited colonists from crossing the Appalachians. Then, to replenish the treasury after the last war, they passed a number of revenue laws. In 1765 they enacted the Stamp Act, which placed a tax on printed material in the colonies, everything from legal documents and newspapers to playing cards.
The Stamp Act shocked colonists, who saw in it a central political struggle that had been going on in England for more than a century: could the king be checked by the people? Colonists were not directly represented in Parliament and believed they were losing their fundamental liberty as Englishmen to have a say in their government. They responded to the Stamp Act with widespread protests.
In 1766, Parliament repealed the Stamp Act but linked that repeal to the Declaratory Act, which claimed for Parliament “full power and authority to make laws and statutes…to bind the colonies and people of America…in all cases whatsoever.” This act echoed the 1719 Irish Declaratory Act, which asserted that Ireland was subordinate to the British king and Parliament. It also imposed new taxes.
As soon as news of the Declaratory Act and the new taxes reached Boston in 1767, the Massachusetts legislature circulated a letter to the other colonies standing firm on the right to equality in the British empire. Local groups boycotted taxed goods and broke into warehouses whose owners they thought were breaking the boycott. In 1768, British officials sent troops to Boston to restore order.
Events began to move faster and faster. In March 1770, British soldiers in Boston shot into a crowd of men and boys harassing them, killing five and wounding six others. Tensions calmed when Parliament in 1772 removed all but one of the new taxes—the tax on tea—but then, in May 1773, it tried to bail out the failing East India Company by giving it a monopoly on tea sales in the colonies. The result would be cheaper tea in the colonies, convincing people to buy it and thus establishing Parliament’s right to impose the tax.
Ships carrying the East India tea sailed for the colonies in fall 1773, but mass protests convinced the ships headed to every city but Boston to return to England. In Boston the royal governor was determined to land the cargo. On December 16, 1773, colonists dressed as Indigenous Americans boarded the Dartmouth, tied to a wharf in Boston Harbor, and tossed the tea overboard. Parliament promptly closed the port of Boston, strangling its economy.
In fall 1774, worried colonial delegates met as the First Continental Congress in Carpenters’ Hall in Philadelphia to figure out how to stand together against tyranny. In Massachusetts a provincial congress stockpiled weapons and supplies in Concord and called for towns to create companies of men who could be ready to fight on a minute’s notice.
British officials were determined to end the rebellion once and for all. They ordered General Thomas Gage to arrest Boston leaders Samuel Adams and John Hancock, who were rumored to be in Lexington, and to seize the supplies in Concord. On the night of April 18, 1775, the soldiers set out. The next morning, on the Lexington town green, the British regulars found several dozen minutemen waiting for them. The locals began to disperse when ordered to, but then a shot cracked through the darkness. The regulars opened fire. Eight locals were killed, another dozen wounded.
The regulars marched on to Concord, where they found that most of the supplies had been removed. Then, when they turned to march back to Boston, they found their retreat cut off by minutemen firing from behind boulders, trees, and farmhouses. Seventy-three regular soldiers were killed, another 174 were wounded, and 26 were missing. There were 96 colonial casualties: 49 killed, 41 wounded, and 5 missing.
Before disbanding the year before, the First Continental Congress had agreed to meet again if circumstances seemed to require it. After the events at Lexington and Concord, they regrouped in Philadelphia in late spring 1775, down the street from Carpenters’ Hall in the Pennsylvania State House, a building that we now know as Independence Hall.
The Second Continental Congress agreed to pull the military units around Boston into a Continental Army and put George Washington of Virginia in charge of it. But delegates also wrote directly to the king, emphasizing that they were “your Majesty’s faithful subjects.” They blamed the trouble between him and the colonies on “many of your Majesty’s Ministers,” who had “dealt out” “delusive presences, fruitless terrors, and unavailing severities” and forced the colonists to arm themselves in self-defense. They begged the king to use his power to restore harmony with the colonies. By the time the Olive Branch Petition made it to England in fall 1775, the king had already declared the colonies to be in rebellion.
In January 1776, a 47-page pamphlet, published in Philadelphia by newly-arrived immigrant Thomas Paine, provided the spark that inspired his new countrymen to make the leap from blaming the king’s ministers for their troubles to blaming the king himself. “In the following pages I offer nothing more than simple facts, plain arguments, and common sense,” Paine wrote.
Paine rejected the idea that any man could be born to rule others, and he ridiculed the idea that an island should try to govern a continent. “Where…is the King of America?” Paine asked in Common Sense. “I’ll tell you Friend…so far as we approve of monarchy…in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.
“A government of our own is our natural right: And when a man seriously reflects on the precariousness of human affairs, he will become convinced, that it is infinitely wiser and safer, to form a constitution of our own in a cool deliberate manner, while we have it in our power, than to trust such an interesting event to time and chance. If we omit it now, some [dictator] may hereafter arise, who laying hold of popular disquietudes, may collect together the desperate and the discontented, and by assuming to themselves the powers of government, may sweep away the liberties of the continent like a deluge.”
“We have it in our power,” Paine wrote, “to begin the world over again.”
As Common Sense swept the colonies, people echoed Paine’s call for American independence. By April 1776, states were writing their own declarations of independence, and a Virginia convention asked the Second Continental Congress to consider declaring “the United Colonies free and independent States, absolved from all allegiance to, or dependence upon, the Crown or Parliament of Great Britain.” On June 7, Lee put the resolution forward. Four days later, the Congress appointed a committee to draft such a declaration.
Congress left time for reluctant delegates to come around to the resolution, so it was not until July 2 that the measure passed. “The Second Day of July 1776, will be the most memorable Epocha, in the History of America,” Massachusetts delegate John Adams wrote to his wife, Abigail, on July 3. While we celebrate the signing of the final form of the declaration two days later, the adoption of the Lee Resolution marked the delegates’ ultimate conviction that a nation should rest not on the arbitrary rule of a single man and his hand-picked advisors, but on the rule of law.
[Image: Adoption of the Resolution Calling for Independence from England; 7/2/1776; Reports on Administrative Affairs of the Congress; Papers of the Continental Congress, 1774 - 1789; Records of the Continental and Confederation Congresses and the Constitutional Convention, Record Group 360; National Archives Building, Washington, DC.]
Notes:
https://avalon.law.yale.edu/18th_century/contcong_07-08-75.asp
John M. Barry, Roger Williams and the Creation of the American Soul: Church, State, and the Birth of Liberty (New York: Viking, 2012).
https://www.gutenberg.org/files/147/147-h/147-h.htm
https://www.archives.gov/milestone-documents/lee-resolution
https://www.nps.gov/inde/learn/historyculture/resources-declaration-secondcontinentalcongress.htm
https://www.nps.gov/mima/learn/historyculture/april-19-1775.htm
July 1, 2023
July 1, 2023
It has been such a long, rough, complicated week I just wanted something peaceful and beautiful to post for tonight before I fall into bed. Peter came through.
[Photo, “Sea Glass” by Peter Ralston.]
Notes: You can find Peter and his wife Terri in the gallery in Rockport, Maine, or here: https://www.ralstongallery.com/
June 30, 2023
June 30, 2023
Today the Supreme Court followed up on yesterday’s decision gutting affirmative action with three decisions that will continue to push the United States back to the era before the New Deal.
In 303 Creative LLC v. Elenis the court said that the First Amendment protects website designer Lorie Smith from having to use words she doesn’t believe in support of gay marriage. To get there, the court focused on the marriage website designer’s contention that while she is willing to work with LGBTQ customers, she doesn’t want to use her own words on a personalized website to celebrate gay marriages. Because of that unwillingness, she said, she wants to post on her website that she will not make websites for same-sex weddings. She says she is afraid that in doing so, she will run afoul of Colorado’s anti-discrimination laws, which prevent public businesses from discriminating against certain groups of people.
This whole scenario of being is prospective, by the way: her online business did not exist and no one had complained about it. Smith claims she wants to start the business because “God is calling her ‘to explain His true story about marriage.’” She alleges that in 2016, a gay man approached her to make a website for his upcoming wedding, but yesterday, Melissa Gira Grant of The New Republic reported that, while the man allegedly behind the email does exist, he is an established designer himself (so why would he hire someone who was not?), is not gay, and married his wife 15 years ago. He says he never wrote to Smith, and the stamp on court filings shows she received it the day after she filed the suit.
Despite this history, by a 6–3 vote, the court said that Smith was being hurt by the state law and thus had standing to sue. It decided that requiring the designer to use her own words to support gay marriage violated the First Amendment’s guarantee of free speech.
Taken together with yesterday’s decision ruling that universities cannot consider race as a category in student admissions, the Supreme Court has highlighted a central contradiction in its interpretation of government power: if the Fourteenth Amendment limits the federal government to making sure that there is no discrimination in the United States on the basis of race—the so-called “colorblind” Constitution—as the right-wing justices argued yesterday, it is up to the states to make sure that state laws don’t discriminate against minorities. But that requires either protecting voting rights or accepting minority rule.
This problem has been with us since before the Civil War, when lawmakers in the southern states defended their enslavement of their Black (and Indigenous) neighbors by arguing that true democracy was up to the voters and that those voters had chosen to support enslavement. After the Civil War, most lawmakers didn’t worry too much about states reimposing discriminatory laws because they included Black men as voters first in 1867 with the Military Reconstruction Act and then in 1870 with the Fifteenth Amendment to the Constitution, and they believed such political power would enable Black men to shape the laws under which they lived.
But in 1875 the Supreme Court ruled in Minor v. Happersett that it was legal to cut citizens out of the vote so long as the criteria were not about race. States excluded women, who brought the case, and southern states promptly excluded Black men through literacy clauses, poll taxes, and so on. Northern states mirrored southern laws with their own, designed to keep immigrants from exercising a voice in state governments. At the same time, southern states protected white men from the effects of these exclusionary laws with so-called grandfather clauses, which said a man could vote so long as his grandfather had been eligible.
It turned out that limiting the Fourteenth Amendment to questions of race and letting states choose their voters cemented the power of a minority. The abandonment of federal protection for voting enabled white southerners to abandon democracy and set up a one-party state that kept Black and Brown Americans as well as white women subservient to white men. As in all one-party states, there was little oversight of corruption and no guarantee that laws would be enforced, leaving minorities and women at the mercy of a legal system that often looked the other way when white criminals committed rape and murder.
Many Americans tut-tutted about lynching and the cordons around Black life, but industrialists insisted on keeping the federal government small because they wanted to make sure it could not regulate their businesses or tax them. They liked keeping power at the state level; state governments were far easier to dominate. Southerners understood that overlap: when a group of southern lawmakers in 1890 wrote a defense of the South’s refusal to let Black men vote, they “respectfully dedicated” the book to “the business men of the North.”
In the 1930s the Democrats under President Franklin Delano Roosevelt undermined this coalition by using the federal government to regulate business and provide a social safety net. In the 1940s and 1950s, as racial and gender atrocities began to highlight in popular media just how discriminatory state laws really were, the Supreme Court went further, recognizing that the Fourteenth Amendment’s declaration that states could not deprive any person of the equal protection of the laws meant that the federal government must protect the rights of minorities when states would not. Those rules created modern America.
This is what the radical right seeks to overturn. Yesterday the Supreme Court said that the Fourteenth Amendment could not address racial disparities, but today, like lawmakers in the 1870s, it signaled that it would not protect voting in the states either. It rejected a petition for a review of Mississippi’s strict provision for taking the vote away from felons. That law illustrates just how fully we’re reliving our history: it dates from the 1890 Mississippi constitution that cemented power in white hands. Black Mississippians are currently 2.7 times more likely than white Mississippians to lose the right to vote under the law.
The court went even further today than allowing states to choose their voters. It said that even if state voters do call for minority protections, as Colorado’s anti-discrimination laws do, states cannot protect minorities in the face of someone’s religious beliefs. In her dissent, Justice Sonia Sotomayor wrote that for “the first time in its history,” the court has granted “a business open to the public a constitutional right to refuse to serve members of a protected class.”
It is worth noting that segregation was defended as a deeply held religious belief.
Today, using a case concerning school loans, the Supreme Court also took aim at the power of the federal government to regulate business. In Biden v. Nebraska the court declared by a vote of 6 to 3 that President Biden’s loan forgiveness program, which offered to forgive up to $20,000 of federally held student debt, was unconstitutional. The right-wing majority of the court argued that Congress had not intended to give that much power to the executive branch, although the forgiveness plan was based on law that gave the secretary of education the power to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs…as the Secretary deems necessary in connection with a…national emergency…to ensure” that “recipients of student financial assistance…are not placed in a worse position financially in relation to that financial assistance because of [the national emergency]”.
The right-wing majority based its decision on the so-called major questions doctrine, invented to claw back regulatory power from the federal government. By saying that Congress cannot delegate significant decisions to federal agencies, which are in the executive branch, the court takes on itself the power to decide what a “significant” decision is. The court established this new doctrine in the West Virginia v. Environmental Protection Agency case, stripping the EPA of its ability to regulate certain kinds of air pollution.
“Let’s not beat around the bush,” constitutional analyst Ian Millhiser wrote today in Vox, today’s decision in Biden v. Nebraska “is complete and utter nonsense. It rewrites a federal law which explicitly authorizes the loan forgiveness program, and it relies on a fake legal doctrine known as ‘major questions’ which has no basis in any law or any provision of the Constitution.”
Today’s Supreme Court, packed as it has been by right-wing money behind the Federalist Society and that society’s leader, Leonard Leo, is taking upon itself power over the federal government and the state governments to recreate the world that existed before the New Deal.
Education Secretary Miguel Cardona called out the lurch toward turning the government over to the wealthy, supported as it is by religious footsoldiers like Lorie Smith: “Today, the court substituted itself for Congress,” Cardona told reporters. “It’s outrageous to me that Republicans in Congress and state offices fought so hard against a program that would have helped millions of their own constituents. They had no problem handing trillion-dollar tax cuts to big corporations and the super wealthy.”
Cardona made his point personal: “And many had no problems accepting millions of dollars in forgiven pandemic loans, like Senator Markwayne Mullin from Oklahoma had more than $1.4 million in pandemic loans forgiven. He represents 489,000 eligible borrowers that were turned down today. Representative Brett Guthrie from Kentucky had more than $4.4 million forgiven. He represents more than 90,000 eligible borrowers who were turned down today. Representative Marjorie Taylor Greene from Georgia had more than $180,000 forgiven. She represents more than 91,800 eligible borrowers who were turned down today.”
In the majority opinion of Biden v. Nebraska, Chief Justice John Roberts lamented that those who dislike the court’s decisions have accused the court of “going beyond the proper role of the judiciary.” He defended the court’s decision and urged those who disagreed with it not to disparage the court because “such misperception would be harmful to this institution and our country.” But what is at stake is not simply these individual decisions, whether or not you agree with them; at stake is the way our democracy operates.
Norman Ornstein of the American Enterprise Institute didn’t offer much hope for Roberts’s plea. “It is not just the rulings the Roberts Court is making,” he tweeted. “They created out of [w]hole cloth a bogus, major questions doctrine. They made a mockery of standing. They rewrite laws to fit their radical ideological preferences. They have unilaterally blown up the legitimacy of the Court.”
In a shot across the bow of this radical court, in her dissent to Biden v. Nebraska, Justice Elena Kagan wrote that “the Court, by deciding this case, exercises authority it does not have. It violates the Constitution.”
—
Notes:
https://www.theguardian.com/law/2023/jun/29/supreme-court-lgbtq-document-veracity-colorado
https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf
https://www.supremecourt.gov/opinions/22pdf/22-506_nmip.pdf
https://babel.hathitrust.org/cgi/pt?id=pst.000017809641&view=1up&seq=7
https://www.vox.com/scotus/2023/6/30/23779903/supreme-court-student-loan-biden-nebraska-john-roberts
https://twitter.com/Acyn/status/1674881920352542720
https://twitter.com/HeidiReports/status/1674815501107707913
June 29, 2023
Today the Supreme Court handed down a decision in Students for Fair Admissions, Inc., v. President and Fellows of Harvard College. Students for Fair Admissions is an organization designed to fight against affirmative action in college admissions, and today it achieved its goal: the Supreme Court decided that policies at Harvard and the University of North Carolina that consider race as a factor in admissions are unconstitutional because they violate the guarantee of equal protection before the law, established by the Fourteenth Amendment.
The deciding votes were 6 to 2 in the case of Harvard—Justice Ketanji Brown Jackson recused herself because she had been a member of Harvard’s board of overseers—and 6 to 3 in the case of the University of North Carolina.
In the case of the two schools at the center of this Supreme Court decision, admissions officers initially evaluated students on a number of categories. Harvard used six: academic, extracurricular, athletic, school support, personal, and overall. Then, after the officers identified an initial pool of applicants who were all qualified for admission, they cut down the list to a final class. At Harvard, those on the list to be cut were evaluated on four criteria: legacy status, recruited athlete status, financial aid eligibility, and race. Today, the Supreme Court ruled that considering race as a factor in that categorical fashion is unconstitutional.
The court did not rule that race could not be considered at all. In the majority decision, Chief Justice John Roberts wrote that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
How much this will matter for colleges and universities is unclear. Journalist James Fallows pointed out that there are between 3,500 and 5,500 colleges in the U.S. and all but 100 of them admit more than 50% of the students who apply. Only about 70 admit fewer than a third of all applicants. That is, according to a study by the Pew Research Center, “the great majority of schools, where most Americans get their postsecondary education, admit most of the people who apply to them.”
The changing demographics of the country are also changing student populations. As an example, in 2022, more than 33% of the students at the University of Texas at Austin, which automatically admits any Texas high school student in the top 6% of their class, were from historically underrepresented populations. And universities that value diversity may continue to try to create a diverse student body.
But in the past, when schools have eliminated affirmative action, Black student numbers have dropped off, both because of changes in admission policies and because Black students have felt unwelcome in those schools. This matters to the larger pattern of American society. As Black and Brown students are cut off from elite universities, they are also cut off from the pipeline to elite graduate schools and jobs.
More is at stake in this case than affirmative action in university admissions. The decision involves the central question of whether the law is colorblind or whether it can be used to fix long-standing racial inequality. Does the Fourteenth Amendment, ratified in 1868 to enable the federal government to overrule state laws that discriminated against Black Americans, allow the courts to enforce measures to address historic discrimination?
Those joining the majority in the decision say no. They insist that the framers of the Fourteenth Amendment after the Civil War intended only that it would make men of all races equal before the law, and that considering race in college admissions undermines that principle by using race in a negative manner, involving racial stereotyping (by considering race by category), and lacking an endpoint. “Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice,” the majority opinion reads.
In a concurring opinion, Justice Clarence Thomas wrote that affirmative action actually made racial tensions worse because it “highlights our racial differences with pernicious effect,” prolonging “the asserted need for racial discrimination.” He wrote: “under our Constitution, race is irrelevant.” “The great failure of this country was slavery and its progeny,” Thomas wrote. “And, the tragic failure of this Court was its misinterpretation of the Reconstruction Amendments.”
Those justices who dissented—Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—pointed to the profound racial discrimination that continued after the Civil War and insist that the law has the power to address that discrimination in order to achieve the equality promised by the Fourteenth Amendment. “The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality,” Sotomayor’s opinion begins. “The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind.”
In her concurring opinion concerning the UNC case, Jackson noted that “[g]ulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the ‘self-evident’ truth that all of us are created equal.”
If this fight sounds political, it should. It mirrors the current political climate in which right-wing activists reject the idea of systemic racism that the U.S. has acknowledged and addressed in the law since the 1950s. They do not believe that the Fourteenth Amendment supports the civil rights legislation that tries to guarantee equality for historically marginalized populations, and in today’s decision the current right-wing majority on the court demonstrated that it is willing to push that political agenda at the expense of settled law. As recently as 2016, the court reaffirmed that affirmative action, used since the 1960s, is constitutional. Today’s court just threw that out.
The split in the court focused on history, and the participants’ anger was palpable and personal. Thomas claimed that “[a]s [Jackson] sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today.” Her solution, he writes, “is to unquestioningly accede to the view of elite experts and reallocate society’s riches by racial means as necessary to ‘level the playing field,’ all as judged by racial metrics…. I strongly disagree.”
Jackson responded that “Justice Thomas’s prolonged attack…responds to a dissent I did not write in order to assail an admissions program that is not the one UNC has crafted.”
She noted that Black Americans had always simply wanted the same right to take care of themselves that white Americans had enjoyed, but it had been denied them. She recounted the nation’s long history of racial discrimination and excoriated the majority for pretending it didn’t exist. “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems.”
“Today, the Supreme Court upended decades of precedent that enabled America’s colleges and universities to build vibrant diverse environments where students are prepared to lead and learn from one another,” the Biden administration said in a statement, warning that “the Court’s decision threatens to move the country backwards.” In a speech to reporters, Biden called for new standards that take into consideration the adversity—including poverty—a student has overcome when selecting among qualified candidates, a system that would work “for everyone… from Appalachia to Atlanta and far beyond.”
“While the Court can render a decision, it cannot change what America stands for.”
—
Notes:
https://www.collegetransitions.com/college-selectivity/
https://www.washingtonpost.com/politics/2023/06/29/affirmative-action-scotus-decision-full-text-pdf/
Twitter:
AshaRangappa_/status/1674437450851049472
neal_katyal/status/1674422760519659520
June 29, 2023
June 28, 2023
In Chicago today, President Joe Biden gave a historic speech at the Old Post Office Building downtown. In it, he was crystal clear that he has launched a new economic vision for the United States to stand against that of today’s Republicans. As he has said since he took office, he intends to build the economy “from the middle out and the bottom up instead of just the top down.”
His vision, he said, “is a fundamental break from the economic theory that has failed America’s middle class for decades now.”
That theory is “trickle-down economics,” the idea that cutting taxes for the wealthy and for corporations while shrinking public investment in infrastructure and public education will nurture the economy. Under that theory the most important metric was a company’s bottom line, Biden pointed out, so companies reduced costs by taking factories and supply chains overseas to find cheap labor, leaving “entire towns and communities…hollowed out.” It also meant cutting taxes, which led to dramatic cuts in public investments in infrastructure, research, social programs and so on, with the idea that concentrating money in a few hands would prompt private investment in the economy. That investment would, the theory went, provide more jobs and enable everyone to prosper.
This is the worldview that the Republicans have embraced since 1980 and that, Biden said, has “failed the middle class. It failed America. It blew up the deficit. It increased inequity. And it weakened…our infrastructure. It stripped the dignity, pride, and hope out of communities one after another…. People working as hard as ever couldn’t get ahead because it’s harder to buy a home, pay for a college education, start a business, retire with dignity. [For] the first time in a generation, the path of the middle class seemed out of reach,” Biden said.
Biden came into office determined to reverse this policy by investing in the American people rather than in tax cuts. With the help of a Democratic Congress, the president backed legislation that invests in infrastructure, repairing our long-neglected roads and bridges, and in supply chains and manufacturing. Rather than scaring off private investment, as the trickle-down theory argued, that public investment has attracted more than $490 billion of private money into new industries. Manufacturing is booming. Together, infrastructure and manufacturing have created new jobs that pay well.
Central to Biden’s vision is the idea that the prosperity of the United States rests on its working people, rather than its elites. In Chicago he emphasized his administration’s focus on training and education, as well as its emphasis on the trades and unions. He also emphasized economic competition, noting that business consolidation has stifled innovation, reduced wages, made supply chains vulnerable, and raised costs for consumers.
To reduce the deficit that has exploded in the past decades and to pay for new programs, Biden reiterated the need for fair taxes on the wealthy and corporations after decades of cuts. “Big Oil made $200 billion last year and got a…$30 billion tax break,” he said, while billionaires pay an average of 8% in taxes, less than “a schoolteacher, a firefighter, or a cop.” He called for “making the tax code fair for everyone, making the wealthy and the super-wealthy and big corporations begin to pay their fair share, without raising taxes at all on the middle class.”
“We’re not going to continue down the trickle-down path as long as I’m president,” Biden said. “This is the moment we are finally going to make a break…. Here’s the simple truth about trickle-down economics: It didn’t represent the best of American capitalism, let alone America. It represented a moment where we walked away… from… how this country was built…. Bidenomics is just another way of saying: Restore the American Dream because it worked before. It’s rooted in what’s always worked best in this country: investing in America, investing in Americans. Because when we invest in our people, we strengthen the middle class, we see the economy grow. That benefits all Americans. That’s the American Dream.”
Biden often points to the New Deal of the 1930s as his inspiration. In that era, under Democratic president Franklin Delano Roosevelt, Congress responded to the economic crash spurred by unregulated capitalism by passing a wide range of laws that regulated business and protected workers, provided a basic social safety net including Social Security, and promoted infrastructure.
In his speech accepting the 1932 Democratic presidential nomination, FDR condemned the policies of his predecessors that turned the government over to businessmen, declaring that “the welfare and the soundness of a nation depend first upon what the great mass of the people wish and need; and second, whether or not they are getting it.” He pledged to give the American people a “new deal” to replace the one that had led them into the Depression, and to lead a “crusade to restore America to its own people.”
But FDR was not the first president to see ordinary Americans as the heart of the nation and to call for a government that protected them, rather than an economic elite. FDR’s distant relative Theodore Roosevelt, a Republican, made a similar argument as president thirty years earlier. Responding to a world in which a few wealthy industrialists—nicknamed “robber barons”—monopolized politics and the economy, he called for a “square deal” for the American people.
“[W]hen I say that I am for the square deal,” TR said in 1910, “I mean not merely that I stand for fair play under the present rules of the game, but that I stand for having those rules changed so as to work for a more substantial equality of opportunity and of reward for equally good service.” He called for conservation of natural resources, business regulation, higher wages, and “social” legislation to create a “new nationalism” that would rebuild the country. Overall, he wanted “a policy of a far more active governmental interference with social and economic conditions in this country than we have yet had, but I think we have got to face the fact that such an increase in governmental control is now necessary.”
But TR didn’t invent the idea of government investment in and protection of ordinary Americans either. In his New Nationalism speech, TR pointed back to his revered predecessor, Republican president Abraham Lincoln, who believed that the government must serve the interests of ordinary people rather than those of elite southern enslavers. When South Carolina senator James Henry Hammond told the Senate in 1858 that society was made up of “mudsills” overseen by their betters, who directed their labor and, gathering the wealth they produced, used it to advance the country, Lincoln was outraged.
Society moved forward not at the hands of a wealthy elite, he countered, but through the hard work of ordinary men who constantly innovated. A community based on the work and wisdom of farmers, he said in 1859, “will be alike independent of crowned-kings, money-kings, and land-kings.” In office, Lincoln turned the government from protecting enslavers to advancing the interests of workingmen, including government support for higher education.
Biden has recently embraced the term “Bidenomics,” a term coined by his opponents who insist that their embrace of tax cuts is the only way to create a healthy economy. But Bidenomics is simply a new word for a time-honored American idea.
—
Notes:
https://www.newyorker.com/news/our-columnists/joe-biden-tries-to-change-the-narrative-on-the-economy
https://www.americanantiquarian.org/Manuscripts/cottonisking.html
https://www.abrahamlincolnonline.org/lincoln/speeches/fair.htm
June 28, 2023
How History Shapes the Present
The mechanics of finishing a book are a lot less interesting than it seems like they ought to be. The upshot of that grinding away is that since I finally wrapped the book I have been starving for new ideas. Not so much new facts— I get those every day— but new theories and new fields.
One of the first things I picked up was Mary Beard’s S. P. Q. R.: A H…
Some News from HCR
Hi Folks:
I have taken it easy for a couple of weeks as I recovered from the new book, and I am now feeling dangerously chipper.
Some of you have noticed that in the past I have occasionally snuck paywalled pieces onto the Letters from an American homepage under the heading “On My Mind,” but have not emailed them both because I loathed the idea of clutte…
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