Sunday, October 31, 2004

Post by Rachel F. Moran

Here are some preliminary thoughts for the meeting that may be relevant to the transformative perspective without undermining the dignity of legislation. (In fact, a truly inclusive society has the potential to enhance the legitimacy of legislation considerably.) Given my particular expertise, I am especially interested in revisiting the constitutional discourse about equality that arose out of the Court’s landmark decision in Brown v. Board of Education. This area is particularly ripe for reexamination because of the changing demographics of America’s population and the new challenges posed by demands for security and order after September 11th. Because Brown followed failed efforts to infuse federal citizenship with real meaning, the rhetoric of civil rights and the privileges of citizenship have never been fully integrated. With Asian Americans and Latinos transforming the racial and ethnic landscape, the meaning and significance of race have grown increasingly contested, and concepts of citizenship and personhood have become increasingly critical sites for understanding incorporation and belonging in the United States. To date, much of the scholarly commentary has emphasized the potential conflicts that will arise between native-born racial and ethnic minorities on the one hand and newly arrived immigrant populations on the other. Yet, it strikes me that concerns about racial profiling, racialization of Arab Americans after September 11th, and heightened security measures at the U.S.-Mexico border all demonstrate opportunities to integrate equality claims based on race or ethnicity with dignitary claims based on personhood, regardless of race or citizenship status.

Another legacy of Brown is the commonplace assumption that liberty and equality interests work at cross-purposes. This widely cited truism reflects the conflicts that arose during school desegregation, when Whites asserted that their associational rights under the First Amendment were violated in the service of advancing Blacks’ equality claims under the Fourteenth. The result has been an artificial divide between civil rights and civil liberties, one that obscures the ways in which these two sets of protections can be mutually reinforcing. The surest mark of subordination is the deprivation of basic liberties (as slavery itself demonstrates), and some of the most successful civil rights cases interweave equality and liberty arguments to good and lasting effect. Brown itself originally looked like such a decision with its strong endorsement of educational interests as well as equal treatment, but the nascent notion of a right to education eventually withered away, perhaps ultimately to the detriment of the push for Black equality. Other cases like Loving and Bakke connected equality claims to First Amendment interests in association and expression, and they have endured–the former largely without controversy and the latter despite the relentless controversy surrounding affirmative action. Plyler v. Doe is a largely underappreciated decision that adopts a strategy of linking equality claims to the capacity to flourish and be free. Plyler succeeds against the odds in gaining constitutional protection for undocumented children, even when alienage is not a suspect class and education is not a fundamental right. Plyler also offers up the intriguing possibility that liberty interests that reflect minimum dignitary claims of personhood can be a back door into constitutional scrutiny of a growing class divide that leaves some trapped in the limited life chances of poverty.

Finally, because of my interest in schools, I am sensitive to questions of local government and federalism. Traditionally, the devolution of local control has been seen as part of a conservative agenda as captured in the imagery of the new federalism. Yet, today America’s large global cities reflect a cosmopolitan ethic often not shared in the rest of the country. On recent occasions, urban populations have engaged in acts of insurrection to demonstrate the gap in values. The most salient recent example may be the effort to allow same-sex couples to marry. Yet, there are other instances of great significance, not least of which are initiatives to change the electoral process in fundamental ways to allow non-citizens to vote and to end winner-take-all, majority voting rules that fail to reflect intensity of preference. Some of the most progressive lawmaking may now be happening at the municipal level, and this emerging form of “urban citizenship” has the potential to turn the new federalism on its head.

-- Rachel F. Moran