How America treats foreigners, regardless of their legal status, is of supreme importance morally, politically, and even diplomatically. It speaks to our values, impacts our standing in the world, and may even influenced the way our own citizens are treated abroad. This is not a bleeding heart talking point, but the sober and matter-of-fact conclusion of the U.S. Supreme Court in Arizona v. U.S. (2012), as cited and recounted by the Fifth Circuit Court in Hernandez v. U.S. (2014): Continue reading
It seems that any institution that is global or multilateral in nature or name elicits visceral opposition by huge swathes of the American public. While there has long been an undercurrent of insularity and outright hostility in America towards the rest of the world, it goes without saying that under the present administration — which came to power on a platform of nationalism, protectionism, and revanchism against foreigners — the sentiment has been worsened to the point of absurdity.
The most salient recent example is our strange response to a sensible resolution at the World Health Organization (WHO) that no one would have imagined was controversial. Continue reading
Today the Fourteenth Amendment to the U.S. Constitution turns 150; as it happens, it is the same day that President Donald Trump will nominate a new Supreme Court justice to replace Anthony Kennedy, whose three-decade tenure in the court included many refinements and defenses of the often-beleaguered and contentious amendment.
More from The Atlantic:
Ratified in 1868, the Fourteenth Amendment was originally intended to allow Congress and the courts to protect three fundamental values: racial equality, individual rights, and economic liberty. But the amendment was quickly eviscerated by the Court, and for nearly a century it protected economic liberty alone. Justice Kennedy embraced all three values of the Fourteenth Amendment, invoking it to protect reproductive autonomy and some forms of affirmative action, as well as to establish marriage equality, but also to limit federal economic regulations, such as the Affordable Care Act. His replacement will determine which vision of the amendment prevails for decades to come.
Of the five sections that make up the amendment, the one most often in contention is the first, which reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
Given the context of its passage, this language is very significant, as The Atlantic again explains:
After the Civil War, many of the former Confederate states passed laws known as the “Black Codes,” which sharply limited the rights of former enslaved people. In response, on July 9, 1868, Congress ratified the Fourteenth Amendment, which guarantees equal protection under the law and also denies any state the right to deprive people of liberty without due process.
Only five years later, the Supreme Court eviscerated the amendment in the 5–4 Slaughterhouse Cases decision. As drafted by the Ohio congressman John Bingham, the amendment was intended to require states as well as the federal government to respect the fundamental liberties guaranteed by the Bill of Rights.
A decade later, in a lopsided 8–1 decision, the Court struck down the Civil Rights Act of 1875, which banned discrimination in public accommodations and transportation. Finally, in 1896, the Court upheld the doctrine of “separate but equal” in Plessy v. Ferguson, standing aside as the South constructed the Jim Crow regime. Justice John Marshall Harlan provided the only dissent. In one of the most famous passages in the history of Supreme Court opinions, he wrote: “There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”
At the same time that the Court turned away from the Framers’ vision of equal civil rights, it invoked the Fourteenth Amendment to protect economic liberties, such as freedom of contract. This period is remembered as the Lochner era, named after a 1905 decision striking down a maximum-hour law for bakers in New York. It culminated in decisions in the early 1930s that struck down the core of Franklin D. Roosevelt’s New Deal.
I remember learning a lot of this in my constitutional law class, and being quite surprised at how immediately resisted and controversial the amendment was, even to the courts. It is even more disconcerting to learn that it would be until fairly recently in American history that the Fourteenth Amendment was enacted as its framers ostensibly intended:
It wasn’t until Brown v. Board of Education in 1954 that the Court resurrected the Fourteenth Amendment’s promise of racial equality, overturning Plessy and attacking school segregation. It struck down state laws banning interracial marriage in Loving v. Virginia. And it upheld landmark civil-rights laws like the Civil Rights Act of 1964 and the Voting Rights Act of 1965. While the Court stopped short of guaranteeing equal funding for education, it did much to attack the jurisprudential foundation of Jim Crow.
At the same time, Chief Justice Earl Warren’s Court resurrected John Bingham’s vision of national enforcement of fundamental rights—most notably, by extending the protections of the Bill of Rights to the states, thereby safeguarding free speech, religious liberty, the right to counsel, and the right to be free of unreasonable searches and seizures.
More controversially, the Warren Court laid the foundation for rights not explicitly mentioned in the text of the Constitution, such as the right to privacy. In later years, the Supreme Court would build on these privacy decisions to issue decisions such as Roe v. Wade—which led to a conservative backlash against the Court.
These competing visions of economic liberty, racial equality, and personal autonomy came to a head in 1987. Justice Lewis Powell—the swing justice on Warren E. Burger’s Court—resigned. President Ronald Reagan, nearing the end of his second term, sought to place his enduring stamp on the Court by nominating the conservative legal intellectual Robert Bork. Following a bruising battle, the Senate rejected the Bork nomination, in part because he refused to recognize a constitutional right to privacy. When Anthony Kennedy embraced the right to privacy, the Senate unanimously confirmed him.
While perhaps not as well known as the first ten amendments enshrined as the Bill of Rights, the implications of the Fourteenth Amendment — and how it will be applied, broadened, or restricted — are vast, especially in light of the replacement of one of its greatest proponents.
With Kennedy leaving the Court, the future of this 150-year-old amendment is at stake. His successor will determine whether the Supreme Court interprets the amendment as allowing or prohibiting laws and policies regulating abortion, marriage, voting rights, and affirmative action. Also at stake are the scope of the Bill of Rights’ protections for free speech, gun rights, religious liberty, freedom from unreasonable government searches and seizures, and economic liberty. Strong constitutional arguments can be made for both sides of all these issues, and Justice Kennedy often held the decisive vote. His successor could determine the shape of the Fourteenth Amendment until its 200th anniversary in 2038.
What are your thoughts?
According to a Gallup poll published in January, 65 out of 134 countries surveyed saw a decline in U.S. leadership approval ratings by 10 points or more between 2016 and 2017. This includes many longtime allies and partners.
Portugal, Belgium, Norway and Canada led the declines worldwide, with approval ratings of U.S. leadership dropping 40 points or more in each country. In contrast, U.S. approval rating increased 10 points or more in just four countries: Liberia (+17), Macedonia (+15), Israel (+14), and Belarus (+11).
Americans typically brush off, if not disparage, what the rest of the world thinks of us. But in a rapidly globalizing and multipolar society, with many rising rivals, global public opinion matters. It also matters that the majority of fellow democracies — as well as countries with longstanding political, economic, historical, and cultural ties — have a lower opinion of us than dysfunctional and/or authoritarian regimes. We should want approval by fellow ostensible democratic-minded societies, not authoritarian ones.
What are your thoughts?
Since I’m pressed for time today, I figured I would stick to something light and cheeky: while most people know that the Chinese invented fireworks over a millennia ago, they may not realized that China (perhaps ironically) remains the main source of the fireworks most Americans will be using to celebrate their nation’s independence.
On this day in 1954, the CIA executed Operation PBSUCCESS, which overthrew the democratically elected Guatemalan President Jacobo Arbenz and installed military officer Carlos Castillo Armas, the first in a series of brutal U.S.-backed desposts who lasted until the 1990s.
Arbenz was only the second Guatemalan leader to be elected democratically; in 1944, a popular uprising toppled the previous U.S.-backed dictator, Jorge Ubico, paving the way for the nation’s first democratic election, which placed Juan Jose Arevalo in power. He introduced a minimum wage, near-universal suffrage, literacy programs, and a new constitution that aimed to turn Guatemala into a liberal democracy. Arbenz succeeded Arevalo in 1951, continuing his social and political reforms, including popular land policies that granted property to landless peasants.
This “Guatemalan Revolution” was disliked by the U.S., which was predisposed by the Cold War to see it — like every leftist or socially oriented movement — as communist and Soviet-backed. It did not help that Arbenz, though himself not a communist, Continue reading
On this day in 1916, Louis Brandeis became the first Jewish person to be appointed to the U.S. Supreme Court, where he would serve until 1939.
Born to immigrants fleeing antisemitism from what was then the Austrian Empire, he graduated Harvard Law at only 20 years old, with what is rumored to be the highest GPA in the school’s history.
As early as 1890, he helped develop the concept of a “right to privacy” and rallied against big banks, powerful corporations, monopolies, political corruption, and mass consumerism, all of which he felt were anathema to American values. As an attorney, he devoted most of his time to public causes, earning the moniker of the “People’s Lawyer” for his insistence on working pro bono in order to take on the most important issues of the day. He was also dubbed the “Robin Hood of the law” for his fight against railroad monopolies, defense of workers’ rights, and the conceptualization of the newly created Federal Trade Commission, which protected consumers from unfair business practices. He was also recognized for developing the “Brandeis Brief,” which relied on expert testimony from people in other professions to support his case, setting a new precedent in evidence presentation.
Brandeis’ nomination to the Court was so fraught that, for the first time in its history, the Senate Judiciary Committee held a public hearing on it. According to fellow Justice William O. Douglas, it was controversial because Brandeis was a “militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible… [and] the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court.” Indeed, opponents regarded him as an anti business “radical” and “agitator” who lacked the “dispassionate temperament” needed to be a judge. Blatant anti semitism was, of course, also a factor. But enough people came to his defense that he won the nomination 47 to 22.
Ultimately, Brandeis became one of the most influential figures ever to serve on the Court, his opinions recognized by legal scholars as some of the “greatest defenses” of freedom of speech and the right to privacy ever written by a Justice. Throughout my first year of law school, I came across many of his brilliant opinions, many of them lonely dissents in the face of familiar uphill battles against privacy violations — see his prescient dissenting opinion in Olmstead v. United States (1928):
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.
On this day in 1896, the U.S. Supreme Court ruled in the landmark case Plessy v. Ferguson that racial segregation in public transportation was constitutional under the “separate but equal” doctrine.
The effects were immediate: already significant disparities in funding for segregated schools widened, flying in the face of the vague doctrine. States that had successfully integrated blacks quickly adopted legislation that reversed the progress made during Reconstruction. These segregation laws would eventually become known as the Jim Crow system. Continue reading
As recounted in Scientific American, as early as 1631, with the publication of Cautio Criminalis by Jesuit scholar Friedrich Spee, it was discovered that torturing criminal suspects did not work. Spee came to this conclusion in the most salient way possible:
The Duke of Brunswick in Germany invited two Jesuit scholars to oversee the Inquisition’s use of torture to extract information from accused witches. “The Inquisitors are doing their duty. They are arresting only people who have been implicated by the confession of other witches,” the Jesuits reported. The duke was skeptical. Suspecting that people will say anything to stop the pain, he invited the Jesuits to join him at the local dungeon to witness a woman being stretched on a rack. “Now, woman, you are a confessed witch,” he began. “I suspect these two men of being warlocks. What do you say? Another turn of the rack, executioners.” The Jesuits couldn’t believe what they heard next. “No, no!” the woman groaned. “You are quite right. I have often seen them at the Sabbat. They can turn themselves into goats, wolves and other animals…. Several witches have had children by them. One woman even had eight children whom these men fathered. The children had heads like toads and legs like spiders.” Turning to the flabbergasted Jesuits, the duke inquired, “Shall I put you to the torture until you confess?”
Having been put in the shoes of the many innocent people maimed and executed solely on the desperate “confessions” of the tortured, Spee was roused into writing the book that helped put an end to centuries of torture as standard law enforcement practice. Hence why all Western countries — including the U.S. via its Eighth Amendment against “cruel and unusual punishment” — recognizing torture as having neither a moral nor practical place in their society. Continue reading
On this day in 1918, the Sedition Act was passed by Congress forbidding Americans from using “disloyal, profane, scurrilous, or abusive language” about the U.S. government, flag, or armed forces during the ongoing First World War. It also allowed the Postmaster General to refuse to deliver any mail that, in his discretion, fit this description.
This was actually the second act of its name and kind, with the first being passed early in the history of the republic, in 1798 (though it expired in 1801). Those convicted under the 1918 act generally received prison sentences of five to 20 years. Continue reading