The Wrong Mile

Much has been made of the Supreme Court of the United States recently voting that the practice of Affirmative Action, at least as implemented in giving students from certain non-White backgrounds an advantage in admissions, is in violation of the United States' Constitution and (allegedly) it's founding principles. There has also been a fair amount of discussion of the partisan split in the vote, with the six Conservative justices voting that the practice is unconstitutional, and the three Liberal justices dissenting. (Although Republican and Democrat may be more accurate. While, theoretically, the justices of the Supreme Court are non-partisan, Presidents and Congress know what they are doing well enough that only a staunch partisan has any real chance of being seated. One may was well call a bowl a bowl.)

The varied and sundry commentary tends to completely ignore, or only briefly touch on, the broader issue at hand. Part of the Conservative majority's reasoning appears to be that racial preferences were never intended to a long-term solution. While one could argue that the circumstances leading up to the fact that certain groups of people were systematically kept out of selective (and many non-selective) colleges and universities in living memory were literally centuries in the making, the majority reasoned that surely they could be fixed in a couple of generations. And maybe they could have, if the correct remedies were put in place. And this is the shortcoming of the earlier efforts at affirmative action; the problem they were solving was not the correct one.

There is a widespread and quite popular idea that the United States is a meritocracy. Some people will dispute, and quite strenuously, any statement to the contrary. But what is "merit?" In college admissions, merit was commonly defined a combination of grades and scores on certain standardized tests. (At least, when sports isn't involved.) While this is often taken to be measuring a combination of academic rigor and willingness to apply oneself to one's studies, a lot of what is actually being measured is the quality of one's education. And because of the way in which the United States tends to fund education, all schools are not created equally. Equal protection under the law, has, generally speaking, not been considered to mean "equal access to quality in public goods." So while an aggrieved White or Asian student can have their case go all the way to the Supreme Court, students of any racial background, or their parents, who understand that their schools are under-resourced, and therefore deliver sub-standard educations, have no nationwide legal remedy. For that matter, they often lack local ones.

Because schools are often funded by the communities or municipalities wherein they reside, wealthy places have better schools. And better schools lead to better outcomes. Those better outcomes lead to greater wealth. Which leads to the ability to access better schools. And the opportunity hoarding that Affirmative Action was designed to dent continues. It's also worth noting that American housing policy, especially as concerns home loans, had been (and in some ways, still is) implemented, in some cases, intentionally, in ways that locked certain groups out of higher-income neighborhoods, even when they had the income to buy into them.

Colleges and universities were given the task of determining which students, whose scores wouldn't make the cut, would have been good enough had they had the same access to quality in education as their wealthier and higher-status counterparts. The Supreme Court voted that this last-mile intervention was inappropriate. But it doesn't now, and hasn't in the past, given accountability to anyone for fixing the tangle of historical problems that selectively set so many students back starting from the first mile of their education journeys.

Swerve

I, like a majority of people, I think, don't have bumper stickers on my car. The practice of using my vehicle to communicate some or another message about myself or about my politics (outside of what people might guess, assume or glean from the fact that I have a car, and what sort it is) has never really spoken to me.

But I have come across some really funny bumper stickers in my travels, like this one, that I saw today...

Blurred

It's also another thing that we're seeing on this court more generally; it's a pretty anti-defendant stance, rulings that are not helpful for criminal defendants in the federal system. And, again, that's sort of part of a longer trajectory: there was a short period in the 60s where there were all these rulings expanding criminals', um, or criminal defendants' rights, and we've gone in the other direction since then. Um, and this is just another way that this court is like really, going even more in, in the direction of, um, ruling against defendants.
Amelia Thomson-DeVeaux, Politics Podcast: How The Supreme Court Will Shape The 2024 Election. FiveThirtyEight.com.

As is my habit, I've quoted a bit from the podcast, to ensure that I pulled all of the context, but what stood out for me was Ms. Thomson-DeVeaux's stumble over "criminals'" vs. "criminal defendants'," rights. In part, because I think it provides a good explanation for the phenomenon she describes. For all that the justice system is supposed to operate under a presumption of innocence up to at least the point where a person is convicted of a crime, it's more accurate to presume that it often operates under a presumption of guilt. This is partly because in a system as large as that of the United States, presuming that people who enter the system are guilty, and pushing to formalize that presumption with a conviction as quickly as possible, is a matter of efficiency. There simply aren't enough courts for every defendant to have full jury trials; accordingly, the system would be hopelessly backlogged (similarly to American immigration courts) were every defendant to avail themselves of their rights. Part of it is a certain confidence that the the American justice system is (despite quite a bit of evidence to the contrary) knowledgeable and competent enough to only intake those people who are actually guilty of the crimes for which they are being pursued. Part of it is ignorance of the fact that there are numerous places where the system may choose to, or choose not to, exercise discretion. And part of it is the believe that once a person is convicted of certain acts, they'll simply always be a criminal.

That last part is important. Contact with the criminal justice system tends to snowball, as people with arrest records, even for relatively minor offenses, can quickly find that it's difficult to find work or housing, which tends to incentive criminal behavior as a means of survival. The sort of pretty street crime that straited people tend to engage in also happens to be precisely the sort of crime that most frightens people. And while there are federal defendants in prisons for white-collar crimes or violations of the public trust, a lot of them are there because the offenses they are charged with are part of the amorphous idea of crime that underpins people's fears.

And so, even when someone is considered innocent until proven guilty of the crime[s] for which they are being tried, their prior history lands them squarely in the category of "criminal" in the minds of many. And there is a large constituency for the idea that "criminals" should have, if not no rights, as few as can be managed. And for all that there is an impression that judges are somehow a superior class of people who are somehow above the prejudices of the public at large, they are drawn from that very public. To the degree that the public conflates criminal defendants with criminals, it's going to have an effect on the judiciary; even at the highest levels.

In the end, I suspect that there will have to be a greater need for human capital for things to change. Right now, warm bodies are easy to find when needed. And as with any resource glut, it's easy to overlook people who fall short of some or another standard when there are plenty more where they came from who will do. That the United States is large enough that the nearly 160,000 people currently in federal custody (about half of whom for drug use offenses) are effectively not missed by the labor force means that there isn't much incentive to get people out of prison so that they can be doing productive work. And if they are released, that same lack of economic incentive to employ them means that they have few options that will keep them away from the circumstances, people and behaviors that got them into trouble in the first place. And if they end up being defendants again, they're likely to find the courts, like the public, have little sympathy for them, having decided that they know all they need to.

Dead Letters

The United States, like pretty much every nation on Earth, professes ideals that it has not, does not and/or will not actually live up to as a matter of day-to-day life. Part of this is that people often see themselves as being better about attaining their ideals than they really are, and part of it is that often, those ideals aren't about the people who set them down. Rather they're pot shots at other people. Take "In God We Trust." Rather than genuinely being an assertion of faith in some Christian idea of a divine plan that would create some or another outcome, it was intended as a means of differentiating the United States from the Union of Soviet Socialist Republics, which was, as a matter of state policy, atheist (due to that whole "opiate of the masses" idea).

The same can be said of a lot of the Declaration of Independence. While it's generally considered, in American folklore, to be an assertion of the rights of free people, it's really a wrapper for a long bill of grievances against King George III. Grievances that have, for the most part, been completely forgotten by Americans at large. Most people are in the United States are aware of the sentence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness," and that's really about it.

For a while, there was some interest in one of the grievances that didn't make it into the final document, namely:

he has waged cruel war against human nature itself, violating it's most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. this piratical warfare, the opprobrium of infidel powers, is the warfare of the CHRISTIAN king of Great Britain. determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, & murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.

The general complaint is that the signing of the Declaration was delayed by two days specifically to remove this mention of the transatlantic slave trade, this by way of explaining why John Adams had predicted that July 2nd would be the date that people would celebrate. While it's true that the South Carolina delegation had objected to anti-slavery language in the document, a number of other changes were made to the document.

In any event, the penultimate grievance in the document has become a new source of controversy:

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

(Note that this was also edited from Mr. Jefferson's original, in which it was two separate passages.)

Some Native American tribes and activists have latched into this statement as a way of pointing out that the "all men" who were "created equal" didn't include them, either.

The fact of the matter is that it didn't include a lot of people. The Declaration would likely have been a much more honest document had it read "all Englishmen," since that's pretty much what most of the people involved had in mind.

"There's this moment of shocking people to the realization of how racist the Declaration of Independence was toward Indigenous peoples," Joseph M. Pierce, a citizen of the Cherokee Nation, tells Axios. He takes a selfie with the shirt every July Fourth.

But that shouldn't be shocking to anyone.

Part of the problem is the way history is taught in the United States. While students tend to learn history in primary and secondary school, those levels teach a fairly simple and superficial understanding of the subject. And part of that is teaching early American history in a way that implies that the Founding Fathers of the United States set up a system that more or less matches what we have now, rather than modern American government, and society, being something that they wouldn't recognize, and likely wouldn't consider either wise or legitimate.

But a lot of this comes down to an understanding that people who hold what we now understand to be racist viewpoints are bad people, rather than simply people. And that sets up a conflict with the heroism that is broadly ascribed to people like Benjamin Franklin, Thomas Jefferson et cetera, especially among Conservatives, who tend to link their understanding that the United States is exceptional now, to the idea that the people who founded it were exceptional then, rather than being, for the most part, wealthy people who had material interests to look out for.

Native Americans, like Black people before them, are going to have a hard time making a dent in the heroic, romantic story that's in place concerning the founding and building of the United States, because most people, frankly, don't care. Some people are invested in the story, and what they believe it says about themselves, but for most people, it's simply an old story, about people long dead.

Cut Twice

The presidential campaign of Governor Ron DeSantis is said to have put out a video attacking former President Donald Trump for previously voicing support for LGBT Americans in the wake of the Pulse nightclub shooting. I looked for the video, to see it for myself, but it seems to have disappeared from Twitter, along with tweets from DeSantis campaign staffers defending it. In any event, fellow psuedo-candidate for the Republican nomination Chris Christie, said: "They’re trying to divide us further. And it’s wrong. It’s absolutely wrong."

Calling out other people as "divisive," or noting that "they're trying to divide Americans" has become a common line of attack in American politics. Which, given the nature of American politics, makes about as much sense as criticizing scissors for cutting things.

The entire structure of the two-party system divides the voting populace of the United States into factional camps. And the parties themselves put a great deal of time and effort into recruiting for their factional camp by demonizing the other factional camp. And given a contested primary election for the Republican nomination, the candidates are going to be looking for voters to support their camp, to the exclusion of the other camps. Even the Log Cabin Republicans, who were among those calling out the DeSantis campaign as "divisive," said: "Ron DeSantis and his team can’t tell the difference between commonsense gays and the radical Left gays." That sounds like attempting to make a pretty stark division to me... (I would also note that the DeSantis War Room calling a recent Supreme Court ruling  a "Sad day for affirmative-action advocates," didn't warrant the same reaction from other Republicans. Likely because they don't care for affirmative action advocates, either.)

The public, generally speaking, is on board with this approach. Not only do political constituencies expect to be told that they're on the side of right and justice, but also that those people support rival candidates are some combination of irrational, gullible or deliberately unethical. There's nothing unifying about leaning into the politics of grievance when the objects of people's rage, anxiety, ignorance and distrust are their fellow countrymen.

And that's, broadly speaking, what the DeSantis campaign was doing. It was leaning into the resentments and fears that conservative Republicans have towards the LGBT community. The Log Cabin Republicans might think that it's only queer people who lean Left who are "pushing their radical sex and gender policies on children," but I'm pretty sure that the DeSantis campaign understands that for most Republican primary voters, if someone's LGBT, they're likely a Democrat. And they were using that in an attempt to paint Donald Trump as someone who supported people they disliked.

Republican intra-party complaining about divisiveness will, for the most, go away once the nomination has been decided, and the attacks are all aimed at President Biden, other Democratic politicians and Democratic voters as a group; mainly because Republicans are nearly entirely unified in their anger and prejudices. There won't be any upside, therefore, in bucking the trend. Knowing this, the complaining about it now seems disingenuous. But it has been some time since American politics was not defined by disingenuity, and it will be a long time before it stops being so.