Constitutional Law

emmacaterine

Does Stop And Frisk Still Matter?

trump-hillaryLast night’s first presidential debate between neoliberal savior Hillary Clinton and Nazi billionaire Donald Trump had plenty of lies and misinformation, mostly of course coming from Trump who cobbles his statements together from Breitbart and your grandpa’s racist email chains. But there was one thing where, as wrong as Trump was, Clinton was actually more wrong, and that was the claim that stop and frisk was ruled unconstitutional.

The date is March 12, 2015 and I’m at Cardozo Law School for a presentation called “Policing, Conflict, and Change.” Like all CLEs and legal events I was mostly there to look for potential husbands so that I can be an unapologetic Marxist firebrand and not worry about, you know, a job. But in all seriousness I was mostly there to see all-star attorney Darius Charney of the Center for Constitutional Rights who for our purposes you should know as the lead counsel of Floyd v. City of New York. While my involvement in policing issues for the past few years means I’m not naive to what difference any one case can make, I still thought that so soon after the case that the room would be at the very least hopeful for turning back the tide. But another panelist, Professor Jeffrey Fagan, opened the panel with a somber tone that would be held throughout the discussion (and my apologies for this being an imprecise quote): “I was asked to come here today to speak about the Fourth Amendment, which is somewhat ironic because there is not much left of the Fourth Amendment.”

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emmacaterine

The End of Dodd-Frank Part 3: The Chilling Effect of Capitalism on Stability in the Congo

lumumba-colonialists-e1422029833605The third part of this series on the Dodd-Frank Act is the most unusual because, at first, it seems to have nothing to do with finance at all. Instead it comes down to a trial about the First Amendment in 2015. Let’s give some background:

Coltan is short for Columbite-tantalite – a black tar-like mineral found in major quantities in the Congo. The Congo possesses 64 percent of the world’s coltan. When coltan is refined it becomes a heat resistant powder that can hold a high electric charge. The properties of refined coltan is a vital element in creating devices that store energy or capacitors, which are used in everything from the smart phone you may be using to read this to the laptop I am using to write it.

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emmacaterine

Atomizing Black Students

Few things pique the fury of the right wing quite like affirmative action. While affirmative action refers to a broad political range of actions taken to empower or uplift the disenfranchised, conservatives and even many liberals see affirmative action as one thing: cheating. That people of color who benefit from affirmative action are not working as hard, not achieving as much, and still asking for all the “rewards” of a college education or secure living wage job. This social narrative of cheating is as old as the Protestant work ethic, but in a world where media access has made us increasingly more empathetic to each others struggles, the capitalists are rightly concerned that we are gradually becoming more non-receptive to these arguments. Some capitalists are going with the flow, embracing diversity as just a new commodity to be owned by the bourgeoisie to exploit the working class. Other capitalists are worried about even conceding this ground, that it would create conditions of “racial balancing” (reparations, returning land to communities, etc.) that could seriously disrupt the social hierarchies that have helped sustain capitalism for the past 500 years. Outside of the tech industry and the nonprofit industry, this line in the sand attitude is the one held by most capitalists. While groups like McDonald’s and Victoria’s Secret will have anti-discrimination policies, these are meant to govern the relations between the lowest workers and their immediate management. In Fisher v. University of Texas (2013), there were many amicus briefs from major corporations filed in support of affirmative action.

However, these briefs can fairly be seen in totality as a PR move rather than a political move. Because groups that these corporations and their executives fund also filed amicus briefs, but in support of the petitioner. The CATO Institute, the Center for Individual Rights, the American Civil Rights Union, Judicial Watch Inc., Center for Constitutional Jurisprudence, and most of the judges on the majority opinion receive donations and funding from major corporations like Coors-Miller, the Koch Brothers, Walmart, Amway, BNY Mellon, Olin Corporation, and the Alleghany Corporation. Most of these corporations are international conglomerates that have controlling stakes in the majority of businesses in the United States, particularly through financing. William C. Richardson is a great example of this: in 2007, he was on the board of both Kellogg (filing for affirmative action) and BNY Mellon (filing against affirmative action through their various think tanks). It is also no coincidence that Richardson is now part of the Exelon Committee on Corporate Governance and CEO Emeritus of the W.K. Kellogg Foundation. This duality is necessary to maintain the illusion that the corporations which directly sell to individual consumers are on our side and care about the things that we care about. If it was clear that all the corporations were against working people, especially working people of color, it would necessarily create consciousness beyond the alienation that is experienced in the society of the corporate spectacle. This atomizing of individuals is the main purpose of constricting and preventing affirmative action.

Sandra Day O’Connor, as much as I wish it were not so, is one of the most important judges in the history of the United States. Particularly she was successful in laying the framework for a neoliberal border for affirmative action to not go beyond in Grutter v. Bollinger and Gratz v. Bollinger. Basically, the standard was placed on a scale of “racial quotas/balancing” to “holistic, individual diversity evaluation with a good faith effort to pursue race-neutral means.” This holistic standard has not satisfied either side: as represented by Justice Ginsburg, it is seen as unnecessary “subterfuge” that bounces around the issue of affirmative action, and as represented by Justice Thomas, it is seen as a standard that perpetuates racial classifications. These sides were pitted against one another in Fisher I, but the Court failed to deliver a strong opinion overruling Grutter or Gratz. Instead, Kennedy attempted to gut Grutter by saying that the “good faith consideration of race-neutral alternatives” had to be a “good faith demonstration of race-neutral alternatives” to a court. As such the case was remanded back to the Texas court. But what happened next was very surprising: the Texas court doubled-down, stating that because race was so entangled in a holistic review of diversity that it would create more of a racial classification to try to eliminate race from the admissions method.

The CATO Institute perhaps phrased the conservative view best in an amicus brief to the Court for the upcoming Fisher II case when they said that holistic review was “opaque” and as such could hide “racial balancing.” Here I believe the CATO Institute is being more intellectually astute, albeit with astounding amorality, about the issue than many of their liberal counterparts. They have recognized that Sandra Day O’Connor’s attempt to make holistic review into a tool that atomizes people failed, that the social understanding of race is such that any classification of race opens a window to the ability to recognize people not as individual failures but rather as people who as a community have been exploited and oppressed. To give it a Trotskyist spin, CATO recognizes that affirmative action could be used as a transitional program to raise consciousness among people of color. That what is blamed on “individual failings” is more accurately tied to legacies of history and the material oppression carried out by corporations and the state. From Columbus Day to Abraham Lincoln being portrayed as against racism, the capitalists try their best to create hegemonic narratives that deny any history that could provide an explanation for the poverty and violence of communities of color outside individual “laziness”, “savagery”, etc. Affirmative action’s danger to the ruling class has never been that it would allow the lazy to get rich or even, as Clarence Thomas would say, that it will make people have negative perceptions of people of color. Rather, the danger is that it would awaken people to the possibility that they deserve not only the facade of “equality of opportunity,” but reparations for the 500 years of colonialism and white supremacy waged against their communities.

Yikes! Reparations are a quick way to summon the ire of even the more liberal capitalists. And the liberals who support affirmative action will do everything in their power to avoid it. They will claim that their support for affirmative action derives from “diversity” being a compelling governmental interest, particularly for its ability to “break down stereotypes” and thus allow “all students to explore, develop, and express their individuality” (from the NAACP’s amicus brief in Fisher). Joshua Civin, counsel to the director of litigation at the NAACP Legal Defense Fund, Inc., wrote the following in an op-ed for The American Constitution Society:

An admissions system that relies exclusively on class rank may overlook students who take intellectual risks by enrolling in demanding classes outside their comfort zone.  Or prodigies who focus all their energy on a subject in which they excel.  Or late bloomers like Albert Einstein.

In an op-ed about use of racial classifications in university admissions, Civin does not cite any of the reasons why racism specifically could impact students. Instead, he cites race-neutral, capitalist-appealing  traits like taking risks, being a prodigy, and commodifying their talents. And wouldn’t an example of a scientist who could not start work as early as their white counterparts because of economic and social constraints be more appropriate, like Roger Arliner Young? As Ta-Nehisi Coates wrote in his essay “The Case for Reparations”:

This confusion about affirmative action’s aims, along with our inability to face up to the particular history of white-imposed black disadvantage, dates back to the policy’s origins…America was built on the preferential treatment of white people—395 years of it. Vaguely endorsing a cuddly, feel-good diversity does very little to redress this.

There will be no happy ending to this story through any definition of affirmative action established by the Supreme Court. Whatever hopes there were to use affirmative action as a tool to build consciousness were squashed when the CATO Institute and their associates realized how dangerous even an atomized version of affirmative action could be. But there is hope. You cannot atomize reparations. You can not say that reparations need to be handed out as part of individualized holistic assessments of welfare benefits. And most importantly, there is no race-neutral gloss of why we should support reparations. There are plenty of questions to be answered: how would reparations intersect with transferring ownership of the land and property to communities? How would reparations work on an international scale? But the simple assertion of supporting reparations already takes us far past the pathetic standards held in Grutter and Fisher. Who knows where they could take us.

Struggles for reparations have already seen some unprecedented victories in the past few years. Here are just a few:

Survivors of Chicago Police Torture

The people of Jamaica

The people of Haiti

Farmer-Paellmann v. Brown & Williamson

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emmacaterine

Chattel Slavery, Peonage, and Labor Under Capitalism

In a class I am taking that focuses on constitutional law, we have spent the first two weeks focusing on state action and consequentially the Fourteenth Amendment, from the initial limitations prescribed by the Civil Rights Cases in 1883 to the synthesis of the Edmonson-Lugar rule, which defines when private conduct constitutes state action (in the Edmonson case, this involved a private corporation being sued for personal injury damages using peremptory challenges to get ride of two Black people from the jury. Because the jury is a state function, and peremptory challenges have no use outside of the courtroom, and finally because being discriminated against by a jury after being discriminated against by the corporation would be an aggravation of the injury facilitated by the state, it constitutes state action. If you could not tell from this complicated process (and particularly the Shelley v. Kraemer factor in the rule is something that confuses even learned legal scholars), placing private action in the public sphere of deserving protection from discrimination is arduous and limited. We actually worked through a number of state action cases, including Edmonson, before we got to the Civil Rights Cases. And the professor had us do a rather illuminating exercise, where we hypothetically went back in time and could write the majority opinion ourselves based on our own interpretations. When I did this, I certainly had a more open interpretation of the 14th amendment is necessarily limited by its language:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Michael Parenti has a fascinating lecture on the real history of fascism, and one of the many assertions he makes about the misconceptions of fascism is that it was intentionally spurred by the actions and investment of global capitalists, from German captains of industry to infamously IBM, Coca-Cola, and Henry Ford. And then Parenti compares many of the tactics to those used by Ronald Reagan. But he makes sure to state that he is not asserting that Reagan was a fascist. After all, rather than pushing for a state cult like the Third Reich, Reagan appointed as many people into positions of power as he could that did not believe in the functions of government they were supervising. From the perspective of the United States entrance into World War II, it was a competition to see which form of capitalism would win: one with a state to strong-arm the working class vs. one with a state that passively allows private actors to strong-arm the working class. The 14th Amendment is a great example of this capitalist state theory, and it should be noted that the decision to weaken the 14th Amendment was made by the moderate section of abolitionists. Conversely, the radical abolitionists like Frederick Douglass, Thaddeus Stevens, and Wendell Phillips were all outraged by the limitations of these amendments. And Representative John A. Bingham, author of the amendment, would garishly reveal his political allegiances when he was implicated in the Credit Mobilier scandal.

As a Trotskyist, I believe in a transitional programme, including with the way I study (and hopefully one day practice) the law. Of course it is vital for us to be autonomous from the capitalist system in order to present a true, rather than assimilatory, alternative, but I want to learn how to use the capitalist law in ways that can build working class consciousness and movement. Needless to say, the limitations of the Fourteenth Amendment were rather disheartening. But that is only one portion of the Civil Rights Cases: they also made a case for the Thirteenth Amendment not offering protection to the legislation either. The Thirteenth Amendment, while including that unfortunate provision on carceral slavery, is far more powerful in that it does not require state action: it prohibits slavery for all parties. Unquestionably this Amendment was the greatest legal victory by the abolitionist movement. But in the Civil Rights Cases, the majority opinion makes the case that the discrimination against free Black peoples before the abolition of slavery demonstrates that anti-Black discrimination is not a “badge or incidence” of slavery. With the current historical record, and of course not viewing it through a lens of perpetuating white supremacy, we know this to be an utter falsehood, as the state-instituted forms of anti-Black discrimination dealing with public accommodations specifically arose in order to dehumanize Black people and thus make them ideal subjects for chattel slavery. And the Black Codes in particular still influence modern anti-Black discrimination today.

Seeing how completely the Civil Rights Cases Thirteenth Amendment arguments could be dismantled, I wondered why we see so little modern day uses of the Thirteenth Amendment. When I asked my professor about this, one part of her answer was to look at the peonage cases. While there are plenty of cases that exemplify the grotesque labor conditions of the South for Black workers, I am going to focus on the case of Pollock v. Williams because of the then Attorney General’s interpretation of it having major implications for the development of capitalism following the loss of the chattel slavery labor source. Florida had a state statute, making it a crime to leave a job without repaying an advance made by the employer to the worker. We continue to see this method of peonage used today in both legal (i.e. crowdworking per its initial labor investment in marketing oneself and bidding for jobs) and black market contexts (i.e. human trafficking in which the laborer is “indebted” to the person who provided them transportation to the country they work in). The Supreme Court struck down Florida’s statute, saying that the purpose of the Thirteenth Amendment went beyond the restrictive context of disallowing slavery; the Court stated that the Thirteenth Amendment was meant to “maintain a system of completely free and voluntary labor throughout the United States.” Attorney General Biddle took this opinion a step forward: as Risa L. Goluboff writes, Biddle believed the Thirteenth Amendment “meant the creation and protection of a unitary, national labor market.” Herein we see the capitalist motivation for Attorney General Biddle to go after peonage laws: like fascism on a macro-scale, peonage laws were meant to entrust the state with steering the labor market in ways that privileged corporations. Biddle foresaw that this methodology would create economic crisis as chattel slavery had done before it. His motivation was largely what David Harvey describes as capitalism’s tendency to move around, rather than solve, its economic crises. As Marxists we of course know that no matter how unitary or nationally-cohesive, capitalism will always bring itself to crisis again.

Nevertheless, the struggle against peonage laws (and it should be noted there were huge community forces behind this resistance as well) fits into a transitional programme regardless of the capitalists. As noted by Jennifer Roesch, “a discussion of the relationship between racism and capitalism has never been more relevant [than today].” Because of how pervasively anti-Black racism under-girds United States capitalism, it is necessary to prioritize targeting those racist structures even if it fails to create an alternative to capitalism in the short-term. For this reason, I think the next big 13th Amendment cases lie in going after these “crowdworking” companies. “Crowdworking” is the neoliberal globalization of the peonage system, only disguising the “advance” as a payment through labor rather than a payment through currency. It conforms with Biddle’s idea of a unitary, though international rather than national, labor market. Thus it is clearly an action to build further consciousness, rather than repeating the actions and frameworks of Biddle. Certainly it is a more complicated issue than this simple brief outline, but I sincerely hope that with the success of the Black Lives Matter movement will come a renewed interest in dismantling the racist exploitation in capitalist labor markets using the Thirteenth Amendment.

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