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SCOTUS Is Changing The Definition Of American Citizenship

In this post I discussed the Republican plan to rig SCOTUS by selecting SCOTUS nominees who would reliably vote their way on issues important to their base and their donors. They’ve succeeded. In this post I give a brief sketch of their goals for each group, the means of enforcement, and the impact on the nature and benefits of American citizenship.

1. Donors. There is an oligarchy inside our democracy, as I have been saying for over a decade. It dominates the Republican donor class. Oligarchs want the freedom to do anything they like with their money and the assets they control. They want the freedom to do whatever they think will make them richer. And they really hate the idea of taxation and all forms of redistribution of wealth. Their current goal is to weaken the ability of the federal agencies to regulate, because that reduces the value of their assets.

The first steps were legislative. The Administrative Procedures Act governs the way agencies make rules. Republicans and corporatist Democrats fiddled with it to make it harder for agencies to act quickly, and to increase the cost to the agencies of rule-making. Then the Office of Management and Budget was added as an additional check closer to the President.

Until recently the primary use of the courts was delay. Corporations and their front groups challenged every rule they didn’t like. Courts took these filings seriously, and allowed lawyers to spend years in costly litigation. Gradually courts created a new layer of rules that brought delay and increased costs of regulation. But even that wasn’t enough.

Right-wing lawyers have been arguing that there is no Constitutional basis for administrative agencies, and thus no basis for rules made by agencies. This led to the non-delegation doctrine which limited the power of Congress to delegate authority to agencies. The current version is called the major questions doctrine, which says Congress has to be very specific about what it delegates if there is a big effect. It essentially gives SCOTUS the power to overrule any agency action it doesn’t like by saying Congress wasn’t explicit. As an example, SCOTUS used the shadow docket to strike down a CDC rule extending the nationwide moratorium on evictions in Alabama Assn. Of Realtors v. Department of Health and Human Services, link here. The Court said the cost to landlords was so great that Congress had to explicitly give the agency poser to make such broad rules.

We get a similar result in National Federation of Independent Businesses v. OSHA. In another case on the shadow docket, a 5-4 majority declared that the number of people affected by a workplace safety requirement that people be vaccinated or tested weekly was really big, and only Congress could make such a big decision.

And who gets to decide if a decision is too big? Not Congress. Not the President. Not the elected representatives of the American people. Nope. SCOTUS gets to decide. In these cases the big beneficiaries are the donor class and the anti-vax Trumpists.

2. The religious fanatics. During the pandemic SCOTUS gutted the CDC rules on attendance at super-spreader events, asserting that Churches had to be treated like grocery stores. Here’s a more neutral discussion on ScotusBlog. These cases were also part of the general attack on agency rules dealing with the death and misery caused by Covid.

Of course, for the religious fanatics, the most important cases are attacks on Roe v. Wade. In the first set of cases, SCOTUS just couldn’t figure out how to stop that blatantly unconstitutional Texas bounty law. So they left it in place, seriously impacting abortion clinics in Texas.

The frontal assault is Dobbs v. Jackson Women’s Health Organization, which seeks to limit abortions to 15 weeks, or to get rid of Roe altogether. The case was argued late last year. Here’s a summary from SCOtUSBlog. A decision is expected in June, 2022, and everyone expects a big loss for citizens.

3. Cementing the outcome. It would be possible to get different outcomes if Congress actually represented the will of the majority. To make sure that doesn’t happen, state legislatures draw districts that favor the party in power in the state. In Rucho v. Common Cause, a 5-4 majority of SCOTUS said that partisan gerrymandering “is incompatible with democratic principles”, but sadly courts can’t do anything to protect democracy.

Even racial gerrymandering is fine because it’s always too close to an election, as the Court held in a bunch of shadow docket cases involving obviously racially gerrymandered districts. Here’s a discussion of the problem.

Another challenge to democracy is the idea that state legislatures can make election rules without the checks and balances of their state constitutions, including their governors and courts. This is called the independent state legislature doctrine. I love the idea that this garbage jurisprudence calls itself “doctrines”.

Each of these cases essentially means that we don’t live in a democracy, that the votes of millions of us don’t matter, and in turn, that government controlled by a minority of rich people and religious fanatics cannot be replaced by a majority of voters.

This may breing to mind the principle “one man one vote”, an idea laid out in Baker v. Carr, and the related cases of Reynolds v. Sims and Wesberry v. Sanders. Here’s the thing. Computerized map-drawing has made it so that everyone gets an equal vote, but some votes are more equal than others.

4. Citizenship. I went to law school in the early 70s, so most of the important cases we studied in Constitutional Law were Warren Court cases. I learned to think of them as giving practical effect to the rights and privileges of being a US citizen. For example, everyone has a right to counsel in a criminal case under the Sixth Amendment. Until 1963 everyone with money had that right, but those who didn’t have money didn’t have that right. Then in Gideon v. Wainwright, SCOTUS made that right a reality for every American. In the same way, everyone had a right not to incriminate themselves. That was meaningless until Miranda v. Arizona made it clear that people must be informed of their rights, including their right to have a lawyer present during interrogation.

Another group of decisions made it clear that there were limits on the ability of states and the federal government to control people’s private lives. Griswold v. Connecticut said states can’t regulate birth control for married people. Cases like this limited the ability of government at all levels to intrude on our private lives.

As a result we gradually gained a full panoply of rights as American citizens, rights which could not be infringed by federal, state and municipal governments.

In this post I cited constitutional scholars across the ideological spectrum saying that originalism and textualism were the conservative backlash against these and many other so-called liberal decisions of the Warren Court. The six conservatives now ruling over us plan to gut those decisions. They were all selected for that purpose. In the future, we will have very few meaningful rights as American citizens. The bulk of our rights will be set by states, many of which are gerrymandered so that a minority can decide what you can and cannot do.

That’s not my idea of America.

Ending American Erasure

[NB: Byline check, thanks. /~Rayne]

In my personal library I have a copy of my textbook from American Government, a mandatory class when I was in high school in Michigan from 1974-1978. Most students took this class in their senior year as it was understood they needed familiarity with government before they voted for the first time, usually within a year of becoming seniors.

Covered about week three of the school year, the subjects of immigration and citizenship followed an overview of basic forms of government, the American republican system of democracy, and the Constitution.

It was the first time in my life that coursework directly addressed any topic related to my family’s origins – specifically my father’s Chinese heritage.

This is it, all of it from that class, in three paragraphs, one of which is a footnote.

The text, Page 83:

Oriental and Personal Exclusion Policies. Congress placed the first major restrictions on immigration with the passage of the Chines Exclusion Act in 1882.[3] At the same time it barred the entry of convicts, lunatics, paupers, and others likely to become public charges. Over the next several years a long list of “undesirables” was composed; for example, contract laborers were excluded in 1885, immoral persons and anarchists in 1903, and illiterates in 1917.[4] By 1920 more than thirty groups were listed as ineligible on grounds of personal characteristics.

Footnote:

[3] The law was intended to stem the flow of “coolie labor” to the Pacific Coast; the Chinese could and did work for far less than white laborers, especially in the mines and on the railroads. By 1924 all Orientals had been excluded except for temporary visits. The policy was relaxed somewhat during World War II when provision was made for the admission of limited numbers of Chinese, Filipinos, and natives of India. Since 1952, immigration from each independent country in the Far East has been regulated by the quota system.

Page 89:

Just how broad the 14th Amendment’s statement of jus soli is can be seen from one of the leading cases in the law of citizenship, United States v. Wong Kim Ark (1898). Wong Kim Ark had been born in the United States to parents who were citizens of China. After an extended visit to China, he was refused entry to the United States by immigration officials at San Francisco. They insisted the 14th Amendment should not be applied so literally as to mean that he was a citizen. They held that as an alien he was prohibited from entry by the Chinese Exclusion Act of 1882. The Supreme Court, however, ruled that under the clear words of the 14th Amendment Wong Kim Ark was, indeed, a native-born citizen and that the Chinese Exclusion Act could not be applied to him.

Because he and his immediate family members left no documents like journals, a total of 318 words in Magruder’s American Government, fifth edition circa 1971, are all I have to understand why my great-grandfather ended up staying in Hawaii rather than coming to the U.S. mainland.

There was nothing in the textbook about other laws affecting immigration and citizenship of Chinese coming to the U.S. – nothing about:

Anti-Coolie Act of 1862
Naturalization Act of 1870
Page Act of 1875
In re Ah Yup 1878
Angell Treaty of 1880 and 1892
Geary Act 1902
In re Hong Yen Chang 1890
In re Knight 1909
Immigration Act of 1924, which included the Asian Exclusion Act
Lum v. Rice 1927

Nothing at all about state and local restrictions affecting Chinese immigrants like:

CA Foreign Miner’s Tax Law 1852
CA law barring “Chinese or Mongolian races” 1858
Pigtail Ordinance of San Francisco
Alien land laws across multiple states

And while there was a generalized discussion of the Naturalization Act of 1790 affecting naturalization of “free white person[s] … of good character,” there’s nothing about its affect on Chinese who weren’t considered white.

As recently as 2018 (!) an alien land law remained in effect in the state of Florida which denied Asian farmers the right of land ownership; the law was finally overturned by voters that year though they had rejected its repeal in 2008.

All of this is particularly galling knowing that over the course of the project, the Transcontinental Railroad was built with the labor of as many as 20,000 Chinese immigrants – enough men to populate a small city. In my American History class the achievement in which the west and east railroads were joined was covered with little more than a passing nod.

Just look at this famous photo taken at the celebration of the railroad’s completion:

Chinese immigrants made up as much as 90% of Central Pacific Railroad’s workforce. How many Chinese faces do you see in that photo? The Chinese paid dearly, hundreds having died from the dangerous work and conditions, paid far less than whites on the same job, only to be literally erased.

It’s also particular painful over the last couple of weeks observing the anniversary of the Tulsa race massacre in which Black Wall Street residents were murdered, knowing that there have been multiple massacres in American history of Chinese Americans which have gone unobserved. Granted, there have been more massacres of Black Americans throughout American history like the 1920 Ocoee massacre, but like the thousands of railroad workers the Chinese victims of white rage since the 1800s received a dearth of recognition.

How many U.S. textbooks contained references to these violent assaults on Chinese American communities during which whites drove out residents after attacking and sometimes killing Chinese Americans:

Los Angeles Chinese Massacre 1871
33 California attacks 1880s
Rock Springs Massacre 1885
Attack on Squak Valley 1885
Tacoma riot 1885
Miscellaneous mob violence in Colorado, Nevada, Oregon 1885-1886
Seattle riot 1886
Hells Canyon massacre 1887
Pacific Coast Race Riots 1907
Bellingham riots 1907

Likely none. Perhaps it’s just as well my great-grandfather never made it to the mainland, becoming an American citizen after the U.S. annexed Hawaii in 1898 and granted Hawaii’s citizens U.S. citizenship in the process of establishing the Hawaii as a territory.

It’s funny Donald Trump forgot this bit of history each time he denied Barack Obama’s U.S. citizenship, yet more deliberate erasure. Each time I heard about Trump’s birtherism I wondered if my family’s citizenship was likewise being called into question for being both brown and born in Hawaii.

~ ~ ~

All of this is to say that the rabid state-level attempts to excise teaching the truth of America’s history is another racist effort to police brown people and erase them while continuing to siphon their value (i.e., keep working and contributing to Social Security and taxes, but die early from the same kind of racist neglect extended to Americans of color through the nation’s history.)

Hello again, colonialism, this time occupying not only brown bodies but the public’s mind, whitewashing the past.

I won’t use the phrase which was honestly and earnestly applied to the body of knowledge which teaches all of America’s history, including its pre-nation origins. I respect the persons behind it, but the phrase or label has become toxic, deliberately made so by a counter movement intended to invoke a reflexive negative reaction in a particular audience.

That I will call out for what it is: it’s white supremacy and nationalism with oligarchic sponsors, attempting to sanitize its wretchedness and avoid disclosure of its ongoing toxic effect on this country by insisting the history of Black Americans is removed from classrooms.

It’s naked racism, fighting against a near-term future in which half or more of the U.S. is not white, in which people like me and my family are a part of a new majority.

It’s a raw struggle for continued domination over the narrative through which they cling to power – the falsehood that America is ever-innocent and eternally white, that its emergence over the last 402 years didn’t depend on the physical, economic, and political subjugation of non-white humans and their nations, even now on a rolling basis.

It’s desperate denialism which cannot accept this country began as multiple layers of theft, constructing an illusion of a vast and empty space waiting for European whites to fill it, suppressing the truth that forced labor by brown people helped turn this space once occupied by indigenous brown people into the precursor entity which became the largest economy in the world.

Fuck all of that. Fuck the erasure which denies people of color have been an intrinsic part of this country’s emergence and too often under violence.

~ ~ ~

No country is perfect. Absolutely none; it’s the story of humanity. A good many countries are now or have been occupiers or occupied over the history of mankind. Changes in boundaries and country names through human history often came with atrocities. There are some truly awful histories like that of the former Belgian Congo and the more recent Cambodia under Khmer Rouge, South Africa’s apartheid past, and now the horrors of the Israel-Palestine conflict and China’s carceral Xinjiang province.

In this the U.S. is not alone. It’s simply a younger country than the United Kingdom whose English forebears injected their brand of slavery into this nation’s history by bringing enslaved people of Ndongo ashore into what is now the state of Virginia.

The same nation later “discovered” Hawaii, encouraging the first wave of colonists and their European diseases which over the next hundred-plus years would wipe out roughly 80-85% of Hawaiians.

This is in part why Hawaii became a territory and is now our fiftieth state. There were too few Hawaiians left to mount a vigorous rejection of colonialism, to defend against the seizure of its monarch. Magruder’s American Government gave even less text to the process by which Hawaiians’ sovereign was deposed and its government replaced as American sugar plantation owners desired, in order to reduce taxes on their products.

I can’t recall exactly how much my American History text expended on Hawaii but I doubt it was little more than a page.

In spite of the wrongs done by Britain and then the U.S. to the small sovereign Pacific nation, it is a bulwark of islands guarding the remote mainland, its residents ready to defend their nation as they were in 1941.

The women in this U.S. Navy photo who were training to fight fires in Pearl Harbor naval shipyard aren’t all white. They are like me and my family – mixed race, some Hawaiian, some Chinese. There were more who were Filipino and Japanese. Let’s not forget war hero and former senator Daniel Inouye of Hawaii, also of Japanese heritage who served his country in WWII with distinction along with other tens of thousands of other Japanese Americans even as 120,000 more civilian Japanese Americans were interned.

These Americans didn’t withdraw and withhold their efforts because the nation which claimed their island as territory was at that time majority white. They signed up to serve the military as did many other local residents who likewise weren’t all white.

Like so many other non-white Americans — Black American descendants of slaves and later immigrants from African nations, Vietnamese and Latin American immigrants, Native Americans who were here all along, so many more — they are part of our complete history and are entitled to be remembered and taught in classrooms.

Any and all of these groups are worth more than three paragraphs. All America deserves a richer, more complete picture of itself. Their story is our story; it shouldn’t be muted, silenced, erased.

Accept the truth: this is what America looks like at its best, warts and all.

Democracy Against Capitalism: Democracy

The second half of Ellen Meiksins Wood’s book, Democracy Against Capitalism, is devoted to a discussion of the current state of democracy in the UK and the US. She begins with a discussion of ancient Athenian democracy, which she regards as a real democracy, and a good model for comparison. In Athens, there was a class of peasant farmers and artisans who were juridically free citizens. They owed no duties to tyrants or aristocrats. They possessed their own means of production, lands and tools, and worked as they saw fit with out any regard to the demands of any other class, or tyrant or government. There were slaves, to be sure.

But the free labourer enjoying the status of citizenship in a stratified society, specifically the peasant citizen, with the juridical/ political freedom this implied and the liberation from various forms of exploitation through direct coercion by landlords or states, was certainly a distinctive formation and one that signaled a unique relationship between appropriating and producing classes. Kindle Loc. 3586.

In other pre-capitalist societies, either the state or a group of aristocrats appropriated some or all of the production of the peasant class “… through various mechanisms of juridical and political dependence, by direct coercion – forced labour in the form of debt bondage, serfdom, tributary relations, taxation, corvée and so on.” Kindle Loc. 3700.

In classical Athens, all citizens, including the peasant farmers and artisans, had the right to participate in decision making on all issues. Of course, people generally deferred to experts on technical matters, such as warship design, but all were entitled to hear the presentations of the experts and to choose the one they thought best. In the same way, all participated in other political decisions. It goes without saying that this “all” didn’t include slaves and women. Even so, this is a remarkable advance for the peasant class.

This arrangement was the subject of debate among the Athenians; though it’s fair to say that pretty much everything was a subject of debate there. Wood offers a fascinating discussion of Plato’s dialog Protagoras as an example. Protagoras was perhaps the most famous of the Sophists, a group of teachers of wisdom and virtue. We only have fragments of his work directly (as opposed to the words Plato puts in his mouth), but I especially like this:

Man is the measure of all things; of things that are, that they are; of things that are not, that they are not. P. 239, The Pre-Socratics, ed. John Wainwright.

In the dialog, Socrates defines the issue as whether virtue can be taught. Roughly, Wood claims Plato argues through Socrates that virtue is philosophical form of knowledge available only to those with a privileged access to a higher truth. Obviously to Plato man is not the measure of all things; rather there is some other sphere of understanding and universal truth that eludes most people, but is available to a special few.

In the Dialog, Protagoras argues that virtue is taught from the beginning of life.

Education and admonition commence in the first years of childhood, and last to the very end of life. Mother and nurse and father and tutor are vying with one another about the improvement of the child as soon as ever he is able to understand what is being said to him: he cannot say or do anything without their setting forth to him that this is just and that is unjust; this is honourable, that is dishonourable; this is holy, that is unholy; do this and abstain from that. And if he obeys, well and good; if not, he is straightened by threats and blows, like a piece of bent or warped wood. At a later stage they send him to teachers, and enjoin them to see to his manners even more than to his reading and music; and the teachers do as they are desired. And when the boy has learned his letters and is beginning to understand what is written, as before he understood only what was spoken, they put into his hands the works of great poets, which he reads sitting on a bench at school; in these are contained many admonitions, and many tales, and praises, and encomia of ancient famous men, which he is required to learn by heart, in order that he may imitate or emulate them and desire to become like them.

That sounds like something Pierre Bourdieu might have written. We teach our young how to be virtuous in our own societies, using the social understandings we learned in the same way, and through our own experience of our culture, including our own study of the texts available to us. This argument leads to the conclusion that every citizen partakes in virtue, and that this civic virtue is the indispensable tool of democracy. Socrates takes the view that only some have access to the higher, universal virtue, and those ought to rule. Wood adds that the producers should be required to enrich and feed the chosen few.

Wainwright says that the Sophists primarily taught people how to win arguments. Those arguments might or might not be best for the community, or even virtuous or moral. Wainwright seems to favor Plato’s position. This argument is ongoing; for example, it’s a big part of Zen and the Art of Motorcycle Maintenance by Robert Pirsig.

Two thoughts.

1. Philosophy. Plato draws a distinction between appearance and reality, a dualism that survives today. Appearance is the aspect of reality that comes to the human mind mediated through our senses. Reality is something else, a deeper unchanging universal existence which only some precious few of us can grasp. One analogy is Plato’s cave, where we humans can perceive only the shadows that real things cast on the wall, not the things themselves. It’s as St. Paul says, 1 Corinthians 12.

For now we see only a reflection as in a mirror; then we shall see face to face. Now I know in part; then I shall know fully, even as I am fully known.

Reading this, it’s easy to see how St. Thomas Aquinas might have been influenced by Plato, if he had those texts, and at least by the Neo-Platonists, which he did have.

Protagoras’ view that man is the measure of all things rings true to me. I will resist the temptation to write about this in depth, but I more or less agree with the ideas Richard Rorty, the American pragmatist, discusses in his accessible collection of essays, Philosophy And Social Hope. It’s worth noting that Rorty really despises Marxism, at least dogmatic Marxism, for reasons that are baffling after reading Democracy Against Capitalism, and which are hard to square with his appreciation of E.P. Thompson’s The Making of the English Working Class, a book praised by Wood.

2. Democracy. I think Protagoras has the better argument on this point. Decisions about how society ought to operate should be made with the participation of as large a number of citizens, the people most affected, as possible. Wood agrees. She thinks that socialism comes from decisions made by a large majority of us or not at all. In our current system, we assume that it’s enough that we are represented in those decisions through our elected officials. But what does that even mean in our current version of democracy?