Category: General Law

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The Status of the Bill of Rights

Today’s oral argument in Times v. Indiana strongly suggest that the Supreme Court will incorporate the Excessive Fines Clause of the Eighth Amendment. On the eve of Bill of Rights Day, the comments from Justice Gorsuch and Justice Kavanaugh were especially interesting.

Justice Gorsuch said at one point: “[Most of the incorporation cases took place in the 1940s. … And here we are in 2018 still litigating incorporation of the Bill of Rights. Really?” Justice Kavanaugh added: “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”

These comments indicate that there is nothing left to selective incorporation except the selective grant of certiorari. In other words, in practice the Supreme Court accepts that everything in the Bill of Rights is fundamental  The few provisions that remain outside of that circle (for example, grand juries and civil juries) will only remain unincorporated because the Court will choose not revisit its nineteenth century cases that so held.  The Bill of Rights has scaled the constitutional heights in the way that John Bingham and Justice Hugo Black foresaw long ago.

 

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Memoir of Justice Stevens

Justice Stevens is publishing a memoir in April. According to a New York Times article on the book, the Justice provides some behind-the-scenes discussion of at least one decision (Heller) from his time on the Court where none of the Justice’s papers are available.

This leads me to make a modest suggestion. Justice Stevens should release (when the memoir comes out in April) any materials from his papers that he relies upon in the book. For instance, he says that he circulated a draft dissent in Heller before Justice Scalia circulated his draft opinion. Let’s see that. He also says he persuaded Justice Kennedy to ask Justice Scalia for changes in Heller. What is that assertion based upon?

I think that these are fair questions. How can the accuracy of his accounts of the Court’s internal deliberations be assessed without access to the primary sources?

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Citations to the Preamble

In reading through Bushrod Washington’s opinions, one practice of note was his citation of the Preamble as authority. For example, in a case involving a state law, he said something along the lines of “This law cannot be valid because the Constitution was meant to create a more perfect union.”

Makes me wonder if there’s a paper (perhaps already written) on the original public meaning of the Preamble. Or the way in which the Preamble was cited.

 

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Breaking Ties in Legislatures

I came across something interesting today. When the House of Commons has a tie vote, the Speaker breaks the tie. (In the British Parliament, the Speaker is a non-partisan parliamentarian rather than a party leader.) In doing so, the Speaker follows a convention to always vote against (1) motions that would curtail debate; (2) amendments to a bill; and (3) final passage of a bill. The theory behind this is that only a majority should be able to do any of these things, and a tie means there is no majority.

Contrast this with the practice in the United States Senate. The Vice-President just votes as he thinks best (though, in practical terms, he takes the position of the President). John Adams established this precedent in casting the first vote to break a tie. I wonder to what extent Adams thought about this.

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The dark history of the whiteness of milk, part 2

My post last week told the story of the Chinese Exclusion Act through the lens of food, illustrating the ways in which perceived links between physical and mental strength (or weakness) and diet were used to perpetuate racist ideologies under the guise of science.

This week’s post turns its focus to milk specifically, and the role it played in the first half of the 20th century in perpetuating racist ideology and promoting notions of western superiority, modernity, and an idealized form of white masculinity.

Milk: the perfect modern food

During the first half of the 20th century, milk was seen as the cornerstone of a healthy diet and the white northern European identity. During that time, the US and Europe heavily promoted milk-drinking and celebrated dairy milk as a nutritionally “perfect” food that improved public health on a wide scale. School milk programs served milk free of charge to students on both sides of the Atlantic from at least the 1940s onwards; the practice continues to this day and is embedded into both US and EU regulations and dietary policies (Cohen 2017, Gaard 2013, DuPuis 2002, DuPuis 2007, Wiley 2014).

Dairy milk also symbolized modernity and western progress in the first half of the 20th century. As a “natural” food that could be improved through modern technological development like pasteurization and homogenization, the idea of dairy milk as a healthful, modern food was tied to the politics of a healthy and modern nation state. Dairy milk was portrayed in the US, Europe, and Australia as white and clean, a modern beverage for modern people (DuPuis 2002, Jönsson 2005, Nimmo 2010)—and, as the 1939 “Road to Health” ad below depicts, a “perfect food” for perfect—happy, healthy, white, nuclear—families.

        

 

White milk for white bodies

Milk wasn’t only used to promote storybook images of happy white families; it was also used to promote explicitly racist ideologies. These racist narratives about milk permeated society through scientific publications and were reinforced through visual representations in popular culture.

Scientific experts considered dairy milk to be directly linked to the success and superiority of white northern Europeans as a race. The respected University of Wisconsin nutrition scientist E.V. McCollum wrote in his widely-read 1918 book The Newer Nutrition that:

[t]he peoples who have made liberal use of milk as a food, have, in contrast [to non-milk drinking peoples], attained greater size, greater longevity, and have been much more successful in the rearing of their young. They have been more aggressive than the non-milk using peoples, and have achieved much greater advancement in literature, science and art. They have developed in a higher degree educational and political systems which offer the greatest opportunity for the individual to develop his powers. Such development has a physiological basis, and there seems every reason to believe that it is fundamentally related to nutrition (DuPuis 2007, McCollum 1918).

In 1928, USDA publicist T. Swann Harding linked perceived “dietary deficiency to a deficiency in national character” among people from China and other Asian countries where dairy was not a central component in most people’s diets. “Today,” Harding wrote, “the Chinese is peaceful, sequacious, unprogressive, unenterprising, nonperservering; his stature is poor, his physique bad, his mortality high” (DuPuis 2007, Harding 1928).

The US National Dairy Council published a pamphlet in the 1920s associating dairy milk with the perceived superiority of white bodies:

The people who have achieved, who have become large, strong, vigorous people, who have reduced their infant mortality, who have the best trades in the world, who have an appreciation for art, literature and music, who are progressive in science and every activity of the human intellect are the people who have used liberal amounts of milk and its products (DuPuis 2002).

A 1930s publication about the agricultural history of New York echoed these sentiments:

A casual look at the races of people seems to show that those using much milk are the strongest physically and mentally, and the most enduring of the people of the world. Of all races, the Aryans seem to have been the heaviest drinkers of milk and the greatest users of butter and cheese, a fact that may in part account for the quick and high development of this division of human beings (Hedrick 1933).

My research into the historical connections between milk and racist ideologies led me to two deeply offensive, explicitly racist images that ran as magazine advertisements from 1916. These images starkly illustrate the deeply ingrained racist narrative at the time that milk represented whiteness and ink represented blackness. I wrestled in putting together this blog post with whether to include these images, as I take seriously the possible implications of potentially giving them new life and attention. My wrestling led me to Dr. David Pilgrim, curator for the Jim Crow Museum of Racist Memorabilia and author of several books including Understanding Jim Crow: Using Racist Memorabilia to Teach Tolerance and Promote Social Justice. Dr. Pilgrim is also the current owner of one of the racist images I came across. In deciding to share these images here, I felt it important to share the story behind Dr. Pilgrim’s acquisition of the image in question, along with countless other pieces of racist memorabilia he has collected over the years.

“I am a garbage collector, racist garbage,” reflects Dr. Pilgrim in his essay, The Garbage Man: Why I Collect Racist Objects. He goes on to recount the following anecdote (note: the redactions of the N-word below are my own):

I have a 1916 magazine advertisement that shows a little black boy, softly caricatured, drinking from an ink bottle. The bottom caption reads, “N****r Milk.” I bought the print in 1988 from an antique store in LaPorte, Indiana. It was framed and offered for sale at $20. The salesclerk wrote, “Black Print,” on the receipt. I told her to write, “N****r Milk Print.”

“If you are going to sell it, call it by its name,” I told her. She refused. We argued. I bought the print and left. That was my last argument with a dealer or sales clerk; today, I purchase the items and leave with little conversation.

In his essay, Dr. Pilgrim explains that the mission of the Jim Crow Museum “is straightforward: use items of intolerance to teach tolerance. We examine the historical patterns of race relations and the origins and consequences of racist depictions.” He goes on to explain that:

Many Americans understand historical racism mainly as a general abstraction: Racism existed; it was bad, though probably not as bad as blacks and other minorities claim. A confrontation with the visual evidence of racism — especially thousands of items in a small room — is frequently shocking, even painful.

Shocking and painful, yes. And yet, I share these images in the hopes that in doing it so serves the mission of Pilgrim’s Jim Crow Museum, namely “the belief that open, honest, even painful discussions about race are necessary to avoid yesterday’s mistakes.” I am grateful to Dr. Pilgrim for his permission to share the image from his collection (which I have redacted, but which can be seen in full here), and for all he does to get people talking about diversity and race relations in meaningful ways.

    
Library of Congress, Prints & Photographs Division, Visual Materials from the NAACP Records [reproduction numbers LC-USZ62-35731 and LC-USZ62-35732]. These images can be seen here and here

Milk Makes Men

Dairy milk has been associated not only with whiteness but also with a particular form of idealized white masculinity: a US advertisement for milk from the 1930s depicts a blond-haired, blue-eyed boy holding a bottle of milk with the words “Milk Makes Men” across the bottom of the page. In Sweden, an advertisement from the 1940s shows a muscular light-skinned, blond-haired boy holding a massive glass of milk under the words “the milk boy is healthy and strong” next to an image of a scrawny, slumped-over dark-haired boy drinking from a small coffee cup under the words “the coffee boy is feeble and weak.” These images remind me of James Leonard Corning’s “effeminate rice eaters” rhetoric from 1884 (see last week’s blog post for more on that). Where Corning linked physical and mental weakness and emasculation to plant-eating and people of color, these ads from half a century later linked strength and idealized masculinity to milk-drinking and whiteness.

  

The association between dairy milk, whiteness, and a particular form of idealized white masculinity persists today. In 2000, Superman—perhaps the very epitome of idealized white masculinity—was featured with a milk moustache in the famous Got Milk? ad campaign.

A 2012 ad for a product called “Maxi-Milk” featured a white, bare-chested man with rippling muscles suspended in air, gripping a rocky cliff with one hand and drinking a bottle of Maxi-Milk with the other. “Milk for Real Men,” the ad proclaims, a modern-day iteration of rhetoric dating back over a century.

   

Advertising is not the only place where milk is linked to notions of whiteness these days. US dietary guidelines—in particular their focus on milk and other dairy products as an essential and significant component of a healthy diet—have been accused of being racist for decades (Freeman 2013). More on that next time.

Bibliography

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One Further Thought on the OLC Memo

In Noel Canning, strong evidence was presented that recess appointments were understood originally to mean the recess between sessions of the Senate. From this point, it follows that Congress could (and probably had to) give the President the power to make interim appointments during a session when the Senate was on a break. Thus, there was no conflict between the two so long as the interim appointment was time limited or there was some clear norm that a formal nomination would quickly follow for Senate consideration.

Given the modern interpretation of the Recess Appointment Clause (in other words, that these picks can happen whenever the Senate says that it is in recess), and the fact that a President might want to avoid Senate confirmation for one of these positions, I think that there is a conflict or a problem. In practice, though, if Whitaker does nothing of consequence until a nominee is chosen, then I doubt a court will gainsay the OLC Memo’s conclusion.

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The OLC Memo on the Acting Attorney General

The memo is very thorough, and I’m almost convinced that the Whitaker appointment is legal. Here is my remaining constitutional question.

I’m still not clear on what the point of a recess appointment is if the President can simply make an “acting” appointment. One thought is there is some profound difference between being the “acting” somebody and the real somebody. In formal terms, though, I do not see why that is the case. Now you could also say that the “acting” appointment is more time-limited than a recess appointment. But that’s not true when, as in this case, we are near the end of a Congress.

My position is that Whitaker is lawfully the Acting Attorney General today, but that his appointment can only run until the end of this Congress. To say that a statute can grant an “acting” appointment beyond the duration of a recess appointment strikes me as wrong. If any of the examples cited in the memo actually did that, though, then I would have to reconsider my position.

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Vanderbilt Law Review, Volume 71, Number 5

The Vanderbilt Law Review is pleased to announce the publication of our October 2018 issue:

ARTICLES

Adam N. Steinman, Access to Justice, Rationality, and Personal Jurisdiction, 71 Vand. L. Rev. 1401 (2018).

Kent Barnett, Christina L. Boyd & Christopher J. Walker, Administrative Law’s Political Dynamics, 71 Vand. L. Rev. 1463 (2018).

Christopher R. Leslie, Hindsight Bias in Antitrust Law, 71 Vand. L. Rev. 1527 (2018).

Thomas Ward Frampton, The Jim Crow Jury, 71 Vand. L. Rev. 1593 (2018).

ESSAY

James D. Nelson, The Trouble with Corporate Conscience, 71 Vand. L. Rev. 1655 (2018).

NOTES

Ahsin Azim, Common Sense: Rethinking the New Common Rule’s Weak Protections for Human Subjects, 71 Vand. L. Rev. 1703 (2018).

Madison Tate Santana, Trafficked in Texas: Combatting the Sex-Trafficking Epidemic Through Prostitution Law and Sentencing Reform in the Lone Star State, 71 Vand. L. Rev. 1739 (2018).

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Andrew Johnson in Messages and Papers of the Presidents

In my edition of Messages and Papers, here’s part of the essay on Andrew Johnson, which gives the standard view of him in the 1920s.

“In integrity of purpose, in personal and moral courage, in intensity of patriotism he has no superior among our Presidents. That his impeachment marks one of the most dangerous epochs of American history there can now be no question among people whose opinion is at all worthy of respect. Even intelligent Republicans now take this view of the matter. Not long since in a lecture before a college in this city, Mr. Justice John M. Harlan, of the Supreme Court of the United States, stated that as his opinion. He is certainly a competent witness. . . .

If a true history of the United States is ever written, while Andrew Johnson will not stand in the front rank of American statesmen, he will unquestionably stand in the front rank of American patriots. He did more, and risked more, to preserve the Union that was done by all the men combined who voted for his conviction.”

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Call For Papers

ALPS will hold its 10th Annual meeting at Syracuse University, in Syracuse New York, May 16-18. The dates include a pre-conference reception on the evening of May 16; full day meetings on May 17-18, each with continental breakfast, lunch, and light reception; and an optional field trip during the day on May 16. Field trip detail will be available prior to registration and tentatively include a visit to the Oneida Indian Nation of New York. The Oneida Indian Nation is one of the original members of the Haudenosaunee people (also known as the Six Nation of the Iroquois). 
 
Paper submissions on any subject related to property law and the practices that shape property norms and institutions are welcome. ALPS has a strong commitment to international and interdisciplinary diversity, and paper topics reflecting that commitment are encouraged. ALPS accepts both individual paper submissions and proposals for fully formed panels (usually 3 to 4 presenters, sometimes including films or multimedia outputs). Individually organized sessions of full panels may have as few as 3 presenters; all sessions with individually submitted papers will typically have at least 4 presenters. Submissions may be of full paper drafts and completed projects, or early works-in-progress. 
 
More details are available here