US constitution and civil liberties

Subterms

    More stories

    • 225 Shares149 Views

      in US Politics

      Trump’s imperial plan is now eroding the rights of people who thought they were safe | Nesrine Malik

      by

      The imperial boomerang effect is the theory that techniques developed to repress colonised territories and peoples will, in time, inevitably be deployed at home. Repressive policing, methods of detention and controlling dissent, forcing humans to produce goods and services for overlords in the metropolis, or even mass enslavement and killing: all “boomerang” back into that metropolis. First, they are used against those who are seen as inferior; then, they are deployed even against those citizens with full rights and privileges if they dare to question authority. In short, the remote other eventually becomes the intimate familiar.Donald Trump’s second term has so far been a case study in how systems built for those whose rights have been diluted or taken away eventually devour those who were assumed to be safe from such violations. There are three ways in which this process of rebounding happens. The first is through the creation of a domestic caste system that mirrors the one outside a country’s borders, as demonstrated in the recent treatment of those foreigners with permanent US residency and valid work visas who expressed dissenting views on Gaza.Under Trump, their actions meet a threshold of insubordination that justifies their arrest, detention and deportation. The human rights of those individuals, such as due process, are cancelled. In allying themselves with Palestinians and against US foreign policy, they are demoted to the level of those Palestinians in their treatment by the US government. The tenuousness of permanent residency, valid work visas, green cards, marriage to US citizens and parenthood to American children starts to become clear. These are all conditional rights that can be stripped away if, in your alliances and solidarities, you identify yourself as a subject of American power. You mark yourself out as a citizen of the periphery daring to ask for the rights of the citizens of the core.Trump’s invocation of the 1798 Alien Enemies Act is an almost too-on-the-nose demonstration of that two-tier system. Laws that were designed centuries ago, and have only been used to create legal vacuums on US soil in order to detain foreigners, create a second class of human. Franklin Roosevelt relied on the act to create domestic internment camps during the second world war, in which more than 100,000 people of Japanese descent were detained. Another order that he issued, and that mandated the internment of US citizens, was only overturned in 2018. If it had not been, Trump would no doubt be using the law to extend arrests and detentions to US citizens for their political opinions as well.That legal infrastructure, no matter how dormant, is always open to reactivation and capture. A similar process unfolds within the workings of an immigration complex that is already opaque and reflexively punitive. The second rebound mechanism is via this sort of infrastructure. The US immigration system is a vast enterprise of bureaucracy, employment, detention centres and private companies that channels and imprisons immigrants. It is also a system that, even before Trump, was one of legal sinkholes and almost infinite licence. Border guards have the final decision-making authority on whether you enter the US, no matter what visa you are issued from an embassy abroad; customs agents have the right to search devices; and, if you are detained and deported, that whole process can happen without you being given access to a lawyer or standing before a judge. Detention for many is a state of extended limbo.Combine a system so large with a regime that enables it while weakening the judicial and legal proceedings that act as a check on its worst impulses, and you have a recipe for overreach and impunity. On his first day in office, Trump signed an executive order that gave even more power to border officials to “identify all resources that may be used to ensure that all aliens seeking admission to the United States, or who are already in the United States, are vetted and screened to the maximum degree possible”. With increased deportations of undocumented migrants being a flagship policy of Trump’s campaign, and the empowerment of Immigration and Customs Enforcement (Ice) to achieve that end, a practical and political dragnet has been cast so wide that it’s catching a lot more than intended. It is no longer only those whose skin colour, paperwork or political opinions throw them into uncertainty.Over the past few weeks, German tourists were arrested when they tried to enter the US entirely legally through the southern border, and detained for weeks before being deported. Jasmine Mooney, a Canadian citizen with a work visa, was arrested and detained for two weeks but told to “mentally prepare” herself for “months”. A French scientist was denied entry to the US when his phone was searched and messages critical of Trump were found. Those who have been added to the immigration detention prison population, from Mooney to Mahmoud Khalil, a green-card holder and recent graduate of Columbia University, testify to the state of detainees they met there. “Justice,” Khalil wrote from detention, “escapes the contours of this nation’s immigration facilities.”Which brings us to the third way in which the boomerang effect takes place – through the erosion of norms and standards, a cannibalisation of the very political systems meant to govern and protect those at the centre. On 18 March, Trump called for the impeachment of a federal judge who issued a temporary ban on deportations as ordered by the administration. The confrontation between Trump and the judiciary has precipitated a constitutional crisis that is shaking the foundations of US politics. The system of checks and balances – the equality of the legislative, executive and judicial branches under the constitution – is threatened by Trump’s open defiance and desired subjugation of all to the executive office. This is against a backdrop of the limiting of academic freedom, the violation of the first amendment, and a disregard for the US constitution described by experts as a “blitzkrieg on the law”.In this, there is something that can be seen everywhere in regimes that either have or crave absolute power. In order to seize authority and run a whole country according to the interests of a sovereign, more and more parties must be disenfranchised and repressed. The imperial form of governance is the prototype of what is required to exert control in the presence of mass dissent. But all political systems with large components that subdue a significant portion of the population cannot continue without those components overtaking the entire machine. It is a simple, almost elegant fact; something like a law of nature. But a nation that withholds its best ideals from some will end up losing them for all.

      Nesrine Malik is a Guardian columnist More

    • 188 Shares109 Views

      in US Politics

      Trump is using Mahmoud Khalil to test his mass deportation plan | Heba Gowayed

      by

      On 8 March, Mahmoud Khalil, a graduate student at Columbia University, was apprehended from university housing by Immigration and Customs Enforcement (Ice) agents. Khalil, a Palestinian and student leader at the Columbia encampments last year, was told by the arresting officers that his green card had been “revoked”, an action that only an immigration judge can decide. It has since been revealed that he is in Ice custody in La Salle, Louisiana, a detention site notorious for abuse.On Truth Social, Donald Trump celebrated the apprehension of Khalil, whom he called “a Radical Foreign Pro-Hamas Student” and bragged of more arrests to come.Khalil has not been accused, by anyone, of violating the law. Instead, his apprehension is a dangerous example of deportation as a retaliation for first amendment-protected speech. Simply put, Khalil was punished for protesting against US complicity in what is widely recognized as a genocide in Gaza. The Trump administration has exploited anti-Palestinian racism as a means to test its mass deportation goals: whitening the nation by eliminating immigrants and insisting that those who are here not challenge those in authority. Khalil’s arrest and detention reveals the fragility of our first amendment protections, of who does and does not have a voice in our nation.As a professor, I am troubled by the central role that academia, which in its ideal form is a bastion of free speech and critical thought, is playing in this assault on human rights. Universities and colleges have become consumed by a politics of consent, where to appease donors and politicians, leadership has collaborated in the targeting of their own students, and faculty largely remain silent in the face of assaults on them.As Israel began its bombardment of Gaza in October 2023, students across the nation set up encampments on their campuses, reminiscent of the anti-apartheid movement of decades past. The Gaza protests were overwhelmingly peaceful, with like-minded students from all backgrounds sharing meals and community.View image in fullscreenColumbia University administrators, for their part, called the the New York City police department to brutalize and arrest their students, criminalizing them. They have since sealed off the public spaces on their campus and restricted access to them, including illegally closing the 116th through street rather than risk any protest on the campus lawn. The brutality is ongoing: just last week, nine students from Barnard were arrested in a new escalation.Much has been written about the “Palestine exception” – the idea that advocating for Palestine is excluded from free speech protections. Well before 7 October 2023, people had been fired, sanctioned, or retaliated against for their writing and speech on issues related to the occupation of Palestine by Israel. Since then, the number has ballooned to thousands of cases as repression has intensified.In the lead-up to his arrest by Ice, Khalil reached out to Columbia twice asking for help, describing a “dehumanizing doxing campaign led by Columbia affiliates Shai Davidai and David Lederer” including a tweet by Davidai, a faculty member at Columbia, who called Khalil a “terror supporter” and tagged Marco Rubio, the secretary of state, to demand his deportation.Rubio deployed the racialized language of “terrorism” to announce that he would target international students for “visa denial or revocation, and deportation”. The announcement was applauded by Senator Tom Cotton and the House committee on foreign affairs, which tweeted from its official account: “Terrorist sympathizers are not welcome in the United States of America. Thank you @SecRubio and @POTUS for your leadership. Deport them all!”The campaign against Khalil, which White House officials admit is a blueprint for targeting other students, was successful. It was later reported that Rubio himself signed the warrant for his arrest, using a little-known provision in the law that allows the secretary of state to unilaterally determine whose presence is warranted in the nation. It means that the fate of Palestinians such as Khalil is being left to those who would dox a student, to those who want to ethnically cleanse Gaza.Democratic politicians came to Khalil’s defense even as they continued to condemn the protests that he was a part of, even as they saw it fitting to use the power of the federal government to sanction students for daring to speak out. In a statement criticizing the arrest, Hakeem Jeffries still felt compelled to describe Khalil exercising his right to protest as creating “an unacceptable hostile academic environment for Jewish students”.Columbia has not issued any statement of support for Khalil or for other immigrant students. Instead, the school updated its website stating that Ice could enter campus property without a judicial warrant in the case of “risk of imminent harm to people or property”. In other words, Columbia is endorsing that deportation – the torturous and forcible removal of a person from their life – is a fitting consequence for protest. It instructed its faculty to continue operating as “usual”.skip past newsletter promotionafter newsletter promotionThe implications of this are extraordinary and alarming. It means that as the country takes an authoritarian turn, as the laws become more McCarthyist, more draconian, this university and others are choosing to align themselves with that turn, to go above and beyond to apply the “law”, even if it means greenlighting the abduction of their students.To be sure, Columbia is not the only campus guilty of silencing pro-Palestinian voices. Last year I protested outside the City College of New York as my own students were loaded into police vans at the behest of chancellor of the City University of New York. In February, an advertisement for a Palestine studies position was removed from our hiring platform due to the intervention of the New York governor, Kathy Hochul, who deemed it to be “antisemitic” because it included the words “genocide” and “apartheid”.I am regularly in conversation with faculty who have lost their jobs, with students who have been expelled from their institutions for protest, with people across universities, across the country, who have been doxed and sanctioned and reprimanded for their voice.The tools of oppression, wielded against those students and faculty whose opinions run contrary to those who are in power, are now undermining the very foundations of this democracy. The freedom of Khalil – who is not a political symbol, but an expectant father – the freedom of everyone who raises their voice for Palestine, and the freedom of Palestinians themselves are tethered to all of our freedoms. Khalil’s safety is tied to that of every immigrant, whether on a student or an H1-B visa, or a permanent resident, or even a naturalized citizen. His freedom is tethered to everyone who cares about their right to free expression.As his case is adjudicated in the courts, which considers its legal dimensions, it is not just Mahmoud Khalil who is on trial, but the entirety of a nation teetering on the edge of authoritarianism. More

    • 150 Shares169 Views

      in US Politics

      Columbia University ‘refusing to help’ identify people for arrest – White House

      by

      The Trump administration said on Tuesday that Columbia University was “refusing to help” the Department of Homeland Security identify people for arrest on campus, after immigration authorities detained a prominent Palestinian activist and recent Columbia graduate over the weekend.The Trump White House’s press secretary, Karoline Leavitt, said on Tuesday the administration had given the university names of multiple individuals it accused of “pro-Hamas activity”, reiterating the administration’s intention to deport activists associated with pro-Palestinian protests.“Columbia University has been given the names of other individuals who have engaged in pro-Hamas activity, and they are refusing to help DHS identify those individuals on campus,” Leavitt said in a press briefing. “And as the president said very strongly in his statement yesterday, he is not going to tolerate that.”Khalil, a permanent US resident who helped lead pro-Palestinian protests at the university last year, was detained on Saturday night in an unprecedented move that prompted widespread outrage and alarm from free speech advocates.Trump described the arrest this week as the “first arrest of many to come”.The federal immigration authorities who arrested Khalil reportedly said they were acting on a state department order to revoke the green card granting him permanent residency.As of Tuesday, Khalil had not been charged with any crime. However, two people with knowledge of the matter told the New York Times that the US secretary of state, Marco Rubio, was relying on a provision of the Immigration and Nationality Act of 1952 that gives him broad power to expel foreigners if they give him “reasonable ground to believe” their presence in the US has “potentially serious adverse foreign policy consequences”. Zeteo also reported that Rubio himself “personally signed off on the arrest”.As of Monday morning, Khalil was being held at an immigration detention facility near Jena, Louisiana.On Monday evening, a federal judge in Manhattan barred his deportation pending a hearing in his case set for Wednesday.The American Civil Liberties Union and the Center for Constitutional Rights have joined Khalil’s legal team, led by his attorney, Amy Greer. Greer stated on Monday that she had spoken with Khalil and that he was “healthy and his spirits are undaunted by his predicament”.On Tuesday, 13 members of Congress – led by the Palestinian-American US representative Rashida Tlaib – issued a letter demanding his immediate release.The arrest came just days after Donald Trump’s second presidential administration canceled $400m in funding to Columbia University over what it described as the college’s failure to protect students from antisemitic harassment on campus.On Monday, the US education department’s civil rights office followed the cuts to Columbia with new warnings to 60 other colleges and universities indicating that they may face “enforcement actions” for allegations of antisemitic harassment as well as discrimination on their campuses.In Monday’s letters to the 60 higher education institutions, the federal education department’s office of civil rights (OCR) said that the schools are all being investigated in response to complaints of alleged “violations relating to antisemitic harassment and discrimination”.A department statement said it sent the admonitions under the agency’s authority to enforce Title VI of the federal Civil Rights Act, which “prohibits any institution that receives federal funds from discriminating on the basis of race, color, and national origin”.“National origin includes shared (Jewish) ancestry,” the statement said.skip past newsletter promotionafter newsletter promotionThe letters stem from an executive order signed by Trump shortly after retaking office in January that purported to “combat antisemitism”. A fact sheet corresponding to Trump’s order suggested deporting international students involved in pro-Palestinian protests.In a statement on Monday, the education secretary, Linda McMahon, said her department was “deeply disappointed that Jewish students studying on elite US campuses continue to fear for their safety amid the relentless antisemitic eruptions that have severely disrupted campus life for more than a year”.“University leaders must do better,” the former executive for the WWE professional wrestling promotion said. “US colleges and universities benefit from enormous public investments funded by US taxpayers.“That support is a privilege, and it is contingent on scrupulous adherence to federal anti-discrimination laws.”Trump had recently threatened to halt all federal funding for any college or school that allows “illegal protests” and vowed to imprison “agitators”. The president accused Columbia University of repeatedly failing to protect students from antisemitic harassment.The institution has been a focal point for campus protests against Israel’s war in Gaza. Demonstrations erupted last spring both across the US and internationally, with students calling for an end to the US’s support to the Israeli military as well as demanding that their universities divest from companies with ties to Israel.At Columbia, such protests led to mass arrests, suspensions and the resignation of the university’s president at the time. More

    • 138 Shares169 Views

      in US Politics

      US added to international watchlist for rapid decline in civic freedoms

      by

      The United States has been added to the Civicus Monitor Watchlist, which identifies countries that the global civil rights watchdog believes are currently experiencing a rapid decline in civic freedoms.Civicus, an international non-profit organization dedicated to “strengthening citizen action and civil society around the world”, announced the inclusion of the US on the non-profit’s first watchlist of 2025 on Monday, alongside the Democratic Republic of the Congo, Italy, Pakistan and Serbia.The watchlist is part of the Civicus Monitor, which tracks developments in civic freedoms across 198 countries. Other countries that have previously been featured on the watchlist in recent years include Zimbabwe, Argentina, El Salvador and the United Arab Emirates.Mandeep Tiwana, co-secretary general of Civicus, said that the watchlist “looks at countries where we remain concerned about deteriorating civic space conditions, in relation to freedoms of peaceful assembly, association and expression”.The selection process, the website states, incorporates insights and data from Civicus’s global network of research partners and data.The decision to add the US to the first 2025 watchlist was made in response to what the group described as the “Trump administration’s assault on democratic norms and global cooperation”.In the news release announcing the US’s addition, the organization cited recent actions taken by the Trump administration that they argue will likely “severely impact constitutional freedoms of peaceful assembly, expression, and association”.The group cited several of the administration’s actions such as the mass termination of federal employees, the appointment of Trump loyalists in key government positions, the withdrawal from international efforts such as the World Health Organization and the UN Human Rights Council, the freezing of federal and foreign aid and the attempted dismantling of USAid.The organization warned that these decisions “will likely impact civic freedoms and reverse hard-won human rights gains around the world”.The group also pointed to the administration’s crackdown on pro-Palestinian protesters, and the Trump administration’s unprecedented decision to control media access to presidential briefings, among others.Civicus described Trump’s actions since taking office as an “unparalleled attack on the rule of law” not seen “since the days of McCarthyism in the twentieth century”, stating that these moves erode the checks and balances essential to democracy.“Restrictive executive orders, unjustifiable institutional cutbacks, and intimidation tactics through threatening pronouncements by senior officials in the administration are creating an atmosphere to chill democratic dissent, a cherished American ideal,” Tiwana said.In addition to the watchlist, the Civicus Monitor classifies the state of civic space in countries using five ratings: open, narrowed, obstructed, repressed and closed.Currently, the US has a “narrowed” rating, which it also had during the Biden administration, meaning that while citizens can exercise their civic freedom, such as rights to association, peaceful assembly and expression, occasional violations occur.For part of Trump’s first term, Tiwana said, the US had been categorized as “obstructed”, due to the administration’s response to the Black Lives Matter protests and restrictive state laws that were enacted limiting the rights of environmental justice protesters, and other actions.skip past newsletter promotionafter newsletter promotionUnder Joe Biden, the classification went back to “narrowed”, Tiwana, said, but as of Monday, the US has been placed on the watchlist as the group says it sees “significant deterioration” in civic freedoms occurring.Tiwana noted that the US is again seemingly headed toward the “obstructed” category.While the Trump administration often say they support fundamental freedoms and individual rights, like free speech, Tiwana believes that the administration seem “to be wanting to support these only for people who they see as agreeing with them”.Historically, Tiwana said, the US has been “considered the beacon of democracy and defense of fundamental freedoms”.“It was an important pillar of US foreign policy, even though it was imperfect, both domestically and how the US promoted it abroad,” he added.But Tiwana believes that the recent actions and statements made by this US administration could empower authoritarian regimes around the world, undermine constitutional principles, and embolden those who “want to accumulate power and increase their wealth and their ability to stay in power for as long as possible”.Tiwana says that he and the organization want to draw attention to the fact that those in power in the US are, in his view, engaging in a “zero-sum politics game” that is eroding “constitutional principles and frankly, engaging in, anti American behavior”.“We urge the United States to uphold the rule of law and respect constitutional and international human rights norms,” said Tiwana. More

    • 225 Shares189 Views

      in US Politics

      Will Trump put a Fox News host on the US supreme court? Mark Tushnet can’t rule it out

      by

      Should Donald Trump get the chance to nominate a new justice to the supreme court, to join the three rightwingers he installed in his first term, he might pick “the equivalent of Pete Hegseth”, Mark Tushnet said, referring to the Fox News host who is now US secretary of defense.“Trump as a person has his idiosyncrasies, I’ll put it that way,” Tushnet said, from Harvard, where he is William Nelson Cromwell professor of law, emeritus. “And … I have thought about potential Trump nominees, and actually, what comes to mind is the equivalent of Pete Hegseth: a Fox News legal commentator.”Justice Jeanine Pirro? It’s a thought. Perhaps future historians will debate “The Box of Wine that Saved Nine”. Perhaps not.“I wouldn’t rule it out,” Tushnet said, of his Fox News theory, if not of Pirro, per se. “I don’t think it’s highly likely, but given the way those things work, and given the idea that you want people who aren’t simply judges, it’s not a lunatic thought, I guess.”The reference to “people who aren’t simply judges” is to arguments laid out in Tushnet’s new book, Who Am I to Judge?, in which he makes his case against the prevalence of judicial theories, particularly originalism, to which conservatives adhere, and calls for a rethink of how justices are selected.Tushnet is a liberal voice. Provocatively, he writes that Amy Coney Barrett, the third Trump justice who in 2022 helped remove the federal right to abortion, at least has a hinterland different from most court picks, as a member of People of Praise, a hardline Catholic sect.“I think her involvement in that group has exposed her to a much wider range of human experience than John Roberts’s background, for example,” Tushnet said, referring to the chief justice who was a Reagan White House aide and a federal judge. “And so if you’re looking for people who have been exposed to human experience across the board, I think she’s a reasonable candidate for that.”View image in fullscreenConey Barrett cemented the 6-3 rightwing majority that has given Trump wins including rejecting attempts to exclude him from the ballot for inciting an insurrection and ruling that presidents have some legal immunity. Now, as Trump appears to imagine himself a king and oversees an authoritarian assault on the federal government, reading Tushnet and talking to him generates a sort of grim humor.Looking ahead, to when Trump’s executive orders might land before the justices, Tushnet suggests “the court will put … speed bumps in the way of the administration. They won’t say: ‘Absolutely you can’t do it,’ except the birthright citizenship order.”That order, signed on Trump’s first day back in power, seeks to end the right to citizenship for all children born on American soil and subject to US jurisdiction, as guaranteed under the 14th amendment since 1868.On 23 January, a federal judge said Trump’s order was so “blatantly unconstitutional” that it “boggled” his mind. Should it reach the supreme court, Tushnet can see the rightwing justices “saying: ‘Look, yeah, if you want to do this, we’re not saying you can, but if you want to do it, you got to get Congress to go along. You can’t just do it on your own.’ So that would be a speed bump.”That said, Tushnet sometimes thinks “about how in the US, there are these traffic-calming measures that are literally speed bumps but sometimes, if you go over too fast, you fly”. Trump, he said, has licensed rightwing justices to take decisions that “may not count as speed bumps if you fly off them”.Tushnet was happy to answer a question he thinks all supreme court nominees should be asked: what’s your favorite book and favorite movie?Tushnet’s favorites are Middlemarch by George Eliot and Heaven, a 2002 film directed by Tom Tykwer from a script co-written by Krzysztof Kieślowski. He wrote his book containing such questions, he said, “because I had this longstanding sense that the [supreme court] nomination process has gotten off the rails, mostly by focusing exclusively on judges as potential nominees, and secondarily by focusing on constitutional theory.“For the past 20 years, the court … has been dominated by people whose background was as judges or appellate advocates, and historically that was quite unusual. There are always some judges but there always had been people with much broader kinds of experience, including a former president, William H Taft [chief justice between 1921 and 1930], and several candidates for the presidency, including Charles Evans Hughes [1916], Earl Warren [a vice-presidential pick in 1948], senators like Hugo Black. And those people had disappeared from consideration for the court, and that seemed to be a bad idea.”Tushnet describes a “political reconstitution of the nomination process provoked in large measure by the Republican reaction to the Warren court”, which sat from 1953 to 1969, the era of great civil rights reforms.“I think their view was the Warren court was not composed of judges, they were politicians, some called them ‘politicians in robes’, and Republicans sort of thought the way to get away from the substantive jurisprudence of the Warren court was to put judges on the court, rather than people with what I call broad experience,” Tushnet said.One justice on the current court was not previously a judge: Elena Kagan, one of the three besieged liberals, was dean of Harvard Law School, then solicitor general under Barack Obama.Tushnet “went into the project thinking that I would find more great justices who had been a politician than I actually did. When I was teaching, I would do this thing about who the justices were who decided Brown v Board of Education”, the 1954 ruling that ended segregation in public schools, “and I think it’s fair to say that not one of them’s primary prior experience was as a judge, and like seven or eight of their prior primary experiences were as a politician. And if Brown v Board is the premier achievement of the supreme court, the fact that it was decided by a court primarily made up of politicians counts in favor of thinking about politicians when appointing to the court.”“Why not do it? For me, the main feature of having been a politician is not that you’ve taken stances aligned with one or another political party at the time, but that you’ve provided reasons in many different ways, you’ve grown up amongst people with a wide range of life experiences that you’ve had to think about, as a politician, in order to get their votes, in order to get your way,” he said.Tushnet’s ideal might be Charles Evans Hughes, an associate justice from 1910 to 1916 and chief justice between 1930 and 1941, but also governor of New York, Republican candidate for president and US secretary of state.On the page, Tushnet imagines asking Hughes a question – “What constitutional theories do you use?” – and getting an appealing answer: “I try to interpret the constitution to make it a suitable instrument for governance in today’s United States.”Tushnet says modern judges and justices should say the same, rather than reach for judicial theories. His new book is in part an answer to a demolition of originalism by Erwin Chemerinsky, dean of UC Berkeley law school: “I distinguish, I think, more clearly than other people have, including Erwin, between what I call academic originalism and judicial originalism.”Either form of originalism concerns working out what the founders meant when they wrote the constitution, then advocating its application to modern-day questions. Tushnet “think[s] a good chunk of academic originalism is not subject to many of the criticisms that Erwin levels. It’s not perfect but it’s an academic enterprise, and people work out difficulties, and there’s controversy within the camp and so on.View image in fullscreen“Judicial originalism is different because it has a couple of components. One is, we now know it’s quite selective. To get originalism into the TikTok decision, for example, you have to do an enormous amount of work. It’s not impossible, but it’s not an originalist opinion, fundamentally. So [justices are] selectively originalist, or, as my phrase is, opportunistically originalist. They use it when the sources that they’re presented with support conclusions they would want to reach anyway, and the adversary process at the supreme court isn’t a very good way of finding out what they say they’re trying to find out. And so as a judicial enterprise, originalism just doesn’t do what it purports to do.”To Tushnet, the late Antonin Scalia, an arch-conservative and originalist, is “the leading candidate to be placed on a list of great justices” of the past 50 years, “because of his influence and his contributions to the court.“But one bad contribution was his widely admired writing style. Now, writing styles change over time. And having read an enormous number of opinions of the 1930s, I know there’s an improvement in readability since the 1930s. But the idea that [opinions] become more readable, accessible and memorable by including Scalia-like zingers, short phrases that are quotable and memorable, seems to be just a mistake. But he’s very influential, and so people try to emulate him … Justice Kagan does it in a gentler way. I guess my inclination would be to say: ‘If you’re going to do it, do it the way Justice Kagan does, rather than the way Justice Scalia did.’”Tushnet agrees that some of Scalia’s pugilistic spirit seems to have passed into Samuel Alito, the arch-conservative author of the Dobbs v Jackson ruling, which removed abortion rights, if while shedding all vestiges of humor.In his book, Tushnet shows how Alito’s Dobbs ruling contained a clear mistake, the sort of thing that is largely down to the role clerks play in drafting opinions, as Tushnet once did for Thurgood Marshall, the first Black American justice.“Times were quite different then,” Tushnet said. “The year I was there, the court decided 150 cases. Now they’re deciding under 50 a year … the year I was there was the year Roe v Wade was decided [1973, establishing the right to abortion, now lost]. It had been resolved fundamentally the year before, so they were just cleaning things up, but we knew these were consequential decisions.”The court will soon have more consequential decisions to make. In the meantime, talk of a constitutional crisis, of a president defying the courts, grows increasingly heated.“My sense is that we’re not at the crisis point yet,” Tushnet said. “Like many administrations before it, the Trump administration is taking aggressive legal positions, which may or may not be vindicated. If they’re not vindicated, they’re muttering about what they’ll do. That’s happened before.“My favorite example is that in the 1930s, Franklin Roosevelt, while a major decision was pending, had his staff prepare two press releases, one saying: ‘Actually the court has upheld our position,’ the other saying: ‘The court mistakenly rejected our position, and we’re going to go ahead with it anyway.’ Now, they didn’t have to issue that press release, because the court went with the administration. But, you know, muttering about resistance is not historically unusual. Resisting would be quite, quite dramatic, but we’re not there yet.”

      Who Am I to Judge? is published by Yale University Press More

    • 125 Shares199 Views

      in US Politics

      Trump’s effort to curtail birthright citizenship suffers yet another setback

      by

      Donald Trump’s effort to curtail automatic birthright citizenship nationwide as part of his hardline immigration crackdown suffered another legal setback on Friday when a second federal appeals court declined to lift one of the court orders blocking the Republican president’s executive order.The Richmond, Virginia-based 4th US circuit court of appeals on a 2-1 vote rejected the Trump administration’s request for an order putting on hold a nationwide injunction issued by a federal judge in Maryland who concluded the order was unconstitutional.“For well over a century, the federal government has recognized the birthright citizenship of children born in this country to undocumented or non-permanent immigrants,” the appeals court’s majority said.It said it was “hard to overstate the confusion and upheaval” that would result from allowing Trump’s order to take effect, as it challenged long-standing legal interpretations and practice in ways that could cause “chaos”.The panel’s majority included the US circuit judges Roger Gregory and Pamela Harris, both appointees of Democratic presidents. The US circuit judge Paul Niemeyer, an appointee of Republican former president George HW Bush, dissented, saying a nationwide injunction was “inappropriate”.It was the second time an appellate court had taken up Trump’s executive order on birthright citizenship, whose fate may ultimately be decided by the US supreme court.Another appeals court last week declined to lift a similar injunction issued by a judge in Seattle. Other judges in Massachusetts and New Hampshire have likewise enjoined the order, finding it violates the US constitution. The White House did not respond to a request for comment.Trump’s order, signed on his first day back in the White House on 20 January, directed US agencies to refuse to recognize the citizenship of children born in the United States if neither their mother nor father was a US citizen or lawful permanent resident.That order was to apply to children born after 19 February, but implementation has been repeatedly blocked by judges at the urging of immigrant rights groups and Democratic state attorneys general. It has also been rejected by the supreme court in the past. More

    • 163 Shares199 Views

      in US Politics

      Julianne Moore’s freckles? How Republican bans on ‘woke’ books have reached new level

      by

      When the actor Julianne Moore learned her children’s book, Freckleface Strawberry, a tale of a girl who learns to stop hating her freckles, had been targeted for a potential ban at all schools serving US military families, she took to Instagram, posting that it was a “great shock” to discover the story had been “banned by the Trump Administration”.Moore had seen a memo that circulated last week revealing that tens of thousands of American children studying in about 160 Pentagon schools both in the US and around the world had had all access to library books suspended for a week, while officials conducted a “compliance review” to hunt out any books “potentially related to gender ideology or discriminatory equity ideology topics”.Although whether Moore’s book would be selected for “further review” or banned entirely remains unclear, the episode brought into stark relief that the movement to ban books in the US – which has been bubbling up for several years, mostly in individual states – had reached a whole new level: the federal one.Donald Trump’s re-election, and his subsequent crackdown on diversity, equity and inclusion (DEI) programs, has many campaigners fearing that the Pentagon move to scrub its libraries of anything it opposes ideologically could be the first of a series of broad attempts to eliminate any discussions of race, LGBTQ+ issues, diversity and historical education from public schools.The Trump administration has scoffed at the idea that it is banning books, and last month it instructed the Department of Education to end its investigations into the matter, referring to bans as a “hoax”. Indeed, many deny that banning books is censorship at all – a disconnect that stems not just from the historical context of book banning, but from a semantic dispute over what it means to “ban” something.In the early 20th century, books such as Ulysses by James Joyce and The Grapes of Wrath by John Steinbeck were banned due to “moral concerns”.Likewise, the red scare of the 1950s saw increased censorship of materials perceived as sympathetic to communism, while the 1980s saw attacks against books dealing with race and sexuality, such as The Color Purple by Alice Walker, which was nearly banned two years after its release in 1984 after a parent petitioned against its use in an Oakland, California, classroom.The difference today, however, is that instead of coming primarily from conservative community organizers, the book banning movement is now coming from government – school boards, local governments and now, with the Pentagon move, even the federal government, increasingly working in lockstep.The modern wave of book bans could be said to have started with a backlash against The 1619 Project, a journalistic anthology by Nikole Hannah-Jones published by the New York Times. The project aimed to reframe US history by centering the contributions of Black Americans, but conservative politicians – including Trump – claimed it taught students to “hate their own country”.View image in fullscreenIn response, Republican lawmakers moved to ban the work in schools, marking the beginning of an intensified campaign against so-called “anti-American” literature.According to PEN America, a non-profit dedicated to defending free expression in literature, more than 10,000 book bans occurred in public schools during the 2023-2024 school year. Books that address racism, gender and history were disproportionately targeted.“The whole principle of public education is that it is not supposed to be dictated by particular ideologies that aim to censor what other people can learn and access in schools,” Jonathan Friedman, the managing director for US free expression programs at PEN America, said.Rightwing politicians, however, have increasingly used book banning as a rallying cry, portraying certain books as tools of “indoctrination” – failing to note the irony that indoctrination is the process of carefully limiting ideas, like banning books.One key figure has been the governor of Florida, Ron DeSantis. He has echoed Trump’s dismissal of book bans as a “hoax”, and spearheaded multiple attempts to reshape education to reflect only conservative values, including the Stop Woke Act, which restricts discussions on systemic racism, and the Parental Rights in Education Act, widely known as the “don’t say gay” law, which limits discussions of gender identity and sexuality in classrooms.Banned titles in Florida schools now include Beloved and The Bluest Eye by Toni Morrison, Normal People by Sally Rooney, Slaughterhouse-Five by Kurt Vonnegut, The Handmaid’s Tale by Margaret Atwood and The Perks of Being a Wallflower by Stephen Chbosky.What DeSantis and other rightwingers often say is that these efforts don’t truly constitute “bans” because they only remove books from schools, rather than totally outlawing them from being bought in the US, and therefore don’t encroach on free speech. John Chrastka, the executive director and founder of EveryLibrary, argued that this is faulty reasoning.“The private marketplace is protected by the first amendment in ways that the government is not beholden to,” he said. “The idea that because a book is still available for sale means that it’s not being banned outright is only the difference between a framework that was in place prior to the 1950s” and today.skip past newsletter promotionafter newsletter promotionHe noted that Lady Chatterley’s Lover, which was first published in 1928 in Europe, was banned in the US for several years before finally getting its American publication in 1959 in what was a watershed affirmation of the right to free speech. Realizing that the first amendment prevented them from blocking the book from US bookstores, critics turned their attention to libraries instead, a grayer area in terms of constitutional protections.DeSantis and other rightwing politicians have taken the lesson: if the constitution prevents you from banning a book from being bought or sold in Florida, the next best thing is to ban it from the places most people would have the easiest access to it – schools and libraries.“It doesn’t add up,” Chrastka added, “the idea that a teenager in a state where it’s impossible for them to get to an independent bookstore because they don’t exist any more somehow has enough liberty to buy the book when the school library is blocked from having it available for them.”Another key distinction is between banning books from classroom curriculum versus removing them from school libraries – which, unlike classrooms, are historically protected spaces for free access to ideas.“What you read for a class supports the curriculum,” says Chrastka, whereas “the school library is supposed to support independent reading. One of them is required reading and the other one isn’t, but [the reading material] is meant to be available.”The landmark supreme court case Island Trees School District v Pico in 1982, when a school board in New York removed books from its libraries it deemed “anti-American, anti-Christian, anti-Semitic, and just plain filthy”, established that school boards cannot restrict the availability of books in their libraries simply because they don’t like or agree with the content.Critics contend the new wave of book bans, although not yet about preventing sales at bookshops, fails to meet the intended purpose of libraries: to preserve and provide a variety of ideas and information that may not be readily or equally accessible to everyone.Now, many fear that once certain books are established as unacceptable in schools, the censorship could spread to colleges, bookstores and eventually nationwide bans. Even if that does not happen, experts say one of the most reliable ways to ensure ideas are suppressed is to dismantle the education system, making Trump’s repeatedly stated goal of eliminating the Department of Education a particular concern.“The vast majority of the budget for the Department of Education and the laws and regulations that make sure that the department is functional go to help students succeed and protect students who are otherwise vulnerable,” said Chrastka.With the education system having been chipped away at for decades with budgets cuts, low literacy rates and high dropout rates, book bans only make it weaker.“What we need in this country is for students to feel supported and to find their own identities, and reading is a core component of that,” Chrastka said. “Let’s let the kids discover themselves and discover their own path forward in the process.” More