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ElyseSchneiderSecondPaper 5 - 06 Aug 2009 - Main.EbenMoglen
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-- ElyseSchneider - 10 Apr 2009
| | | Finally, and underlying all of this, is the importance of education. People need to be aware of the reality faced by various sectors of our society and people directly affected by racial disparity need to be allowed the education to become a Supreme Court Justice. We can educate people through adopting meaningful participation in clinical programs and the study of social phenomena in our schools and by creating a system of free and effective education for all Americans.
Though undoubtedly a great moment, we should not lose ourselves in the historical significance of Obama’s election. The election of America’s first African American president represents a change of societal values, but whether this change can influence a transformation in the Supreme Court, depends on the steps that our generation of lawyers makes.
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- This edit addresses my comments on Erandi's first draft very much the same way you addressed my comments on your first draft of your first essay. You did some work to smooth the language here, which would have been helpful in application to your own first essay revision, and you tried to deal with my comments by incorporating the information I presented.
- But you left the major problems in argument, or aggravated them. "Reasons why" the Supreme Court doesn't do what you want commits you to proof of causation (the things you name have to be "why" cases come out as they do), but doesn't otherwise do much for you, as the "how to overcome the obstacles" account at the end shows.
- You can't carry the logical burden of showing causation. The Supreme Court that decided Brown and began enforcing the desegregation constitution was just as white and even more male, just as privileged and even more insular than the Courts of which you complain. That alone disposes of non-diverse membership as a causal factor. The authors of the fourteenth amendment may or may not have been determined to revolutionize northern society as completely as they were determined to revolutionize southern society: we can certainly notice that what they did is determined not be their actual intentions as human beings, but by the intention we ascribe to them in the interpretation of their words, which has been revolutionary indeed. Because they were the framers of the Warren Court's fourteenth amendment as well as the Roberts Court's fourteenth amendment, claiming that their non-diversity is a cause of the current rulings is also obviously wrong. "Originalism" is only a cause of results if we are non-Realists who believe that outcomes are compelled by logic. But you don't think that, so offering the rhetoric of decision as a cause of decision is a category error. The Southern Strategy, as I pointed out, is a partisan process whose goal is preserving and enhancing the power of the Republican Party. The Indiana decision, like most decisions that disenfranchise voters, benefits the party that benefits from lower voter participation. Treating Republican Party self-interest as a cause of the weakening of anti-discrimination law overlooks the phases in which the Republican Party was the party furthering anti-discrimination law, not only in the 1860s but in the 1960s: Republican legislators and Republican judges supported the Voting Rights Act once they realized it could be used as an engine to destroy one-party rule in the South. Now that they have consolidated one-party rule in the South (or seemed to have done so), they don't need the Act anymore. Partisan interest determines who expresses anti- and pro-white supremacy positions, not whether they are expressed.
- And we never do get to the real point I made in my comments. Because the US is becoming a non-white-majority society, in which African-Americans are still going to be less than 20% of the overall population, the nature of the conversation is changing irrevocably. Measures to combat present and future discriminatory behavior must assume: (1) that white supremacy is not the only reason discrimination occurs; (2) that remedies cannot be based on the assumption that the only costs will be borne by segments of the community with white skin privilege; and (3) that the value of white skin privilege in American society will at last begin to decrease substantially in the next generation. The Republican contribution to the evolution of our thinking, as I said, is the point—which is smaller than Republican ideology likes to pretend but by no means unimportant—that the equal protection clause of the fourteenth amendment sets some limits to the nature of anti-discrimination law in a complex multi-ethnic society like the United States. Getting caught up in that point is foolish: it's a subsidiary issue in the larger question how to constitute anti-discrimination law for the future so that: (1) it continues to deal with the grand problem of US history, which is the crime of slavery and its consequences; and (2) it deals with the problem in light of the actual demographic and social complexities of 21st-century American life. That's where Erandi's draft was thin, and your revision did nothing to deal with the issues.
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