Category: Race

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Stanley v. Illinois: Terminating A Rapist’s Paternal “Rights” in Maryland

In my first two posts on the mixed legacy of Stanley v. Illinois, I discussed my preferred relationship approach, some background about the family, why I think some justices may have seen the case as involving racial as well as gender equality, and how I think that could have made a difference.  In this last post, I address one aspect of the negative legacy of Stanley:  the continuing vitality in state legislatures of the idea that paternal rights should be recognized in every man, including a man whose rape of the mother resulted in the child’s conception.

Let me give you a modern example to chew on.  This year, the Maryland legislature considered and refused to pass for the ninth time a bill to remove paternal rights of men when the child’s conception occurred as the result of a rape. Remember that this is 2017, and Stanley was decided 45 years ago.  During much of the intervening 45 years, usually as the result of legislation enacted by state legislatures after Stanley, marital and non-marital fathers have had the same rights as marital and non-marital mothers to the custody and guardianship of their children and to decide about a child’s adoption, regardless of whether the parent exhibited any commitment to care.  A number of states have limited those rights where the conception occurred as the result of a rape, but not all.  Even where the rights have been limited, however, the negative legacy of Stanley lingers.  I’ll demonstrate that point by a close examination of Maryland’s most recent failed attempt.

Maryland’s legislation would have created a process to address the paternal rights of a man to a child whose conception was the result of the man’s rape of the mother.  Under the proposed legislation, the paternal rights of some of these men could be terminated.  If the rights were terminated, the man would be denied the opportunity to make claims of custody and guardianship of or access to his biological child.

Bill with the same goal have been introduced and failed in each of the prior eight sessions of the legislature.  The bill failed this time after a conference committee did not resolve the differences between the bill passed by the Senate with the bill passed by the House.  The House bill went further in terms of allowing the termination of paternal rights.  It is the better example for my analysis since, in my view, even the House bill protects paternal rights in ways that disempower women without enhancing the care and well-being of children.  I think the bill may protect only a small number of mothers who want to protect themselves and their children from an ongoing relationship with the rapist.

Under the House bill, a man’s paternal rights to a child conceived without the consent of the mother can be terminated if he is convicted of nonconsensual sexual conduct, which includes sexual assault on the mother in the first or second degree and incestuous intercourse with the mother.  In the absence of a conviction, the man’s paternal rights can be terminated if the woman proves by clear and convincing evidence that nonconsensual sexual occurred.  Even though Maryland has no marital rape exemption, the House bill also provides that a husband’s paternal rights can be terminated only if he has been convicted of nonconsensual sexual conduct.

In addition to proof of nonconsensual sexual conduct, termination of paternal rights requires a finding, based on clear and convincing evidence, that termination is in the best interest of the child.

A finding of termination eliminates the man’s right to custody, guardianship, access to and visitation with the child.  It also terminates the man’s child support obligation.  If the man is indigent, he is entitled to have counsel provided for him.

In terms of Stanley, many things are interesting about the proposed bill in addition to the fact that it followed eight previous failed attempts.

First, the bill assumes that all biological fathers are the same, just as the Stanley court assumed, and that all of them have the same rights as mothers to be recognized as parents.  In fact, after Stanley, the Court came to a more nuanced place about the rights of biological fathers to be recognized as legal fathers.  Biology, according to the Court in Lehr v. Robertson , offers a man an opportunity to develop a relationship with a child that is shared by no other man, but biology is not enough.  If a man does not seize the opportunity, the Constitution does not require a state to recognize the man’s claim to legal fatherhood.  A rapist who had no further contact with mother and child (or failed to file postcard with a state registry, as provided by New York law at the time of Lehr), therefore, could be constitutionally denied all rights to parenthood.

Second, the bill prohibits termination unless the court finds by clear and convincing evidence that termination is in the best interest of the child.  If the bill also denied paternal rights to men who fail the Lehr test, this provision would apply only to men who had some relationship with the child or who, at the very least, had admitted paternity prior to an action for termination.  But the bill doesn’t do that.  Instead, it follows the Stanley path and treats all men alike.  As a result, the bill allows for a scenario where a man who has never seen or done anything for the child may get to keep his paternal rights because the mother does not have the resources to mount a convincing case against him about the child’s best interest.

But it gets worse.  Because the bill follows Stanley’s lead of treating all men alike, regardless of prior involvement with the child, it puts impoverished women in a particularly bad position.  Take, for example, the case of a mother who needs public benefits such as cash assistance or Medicaid in order to support her child.  Recipients of these and some other public benefits are required to assign their rights to child support to the state and to cooperate in the establishment of paternity and the order of support.  If the mother persuades the state that the child is the result of a rape, she may get a waiver, but waivers are hard to come by.

Once the paternity and child support suit is brought by the state under the assignment, the father can counterclaim for custody and visitation.  No lawyer represents the mother in such a case; the lawyer who brings the original suit represents the state under the assignment, not the mother.  If the mother tries to defend against the custody and visitation claim on the basis that the child is the result of a rape, the father, if indigent, would be entitled to a lawyer paid for by the state under the House bill.  No lawyer would be provided for the mother.

Third, the bill relieves the man whose rights are terminated of the duty to pay child support.  The bill says, in effect, that child support is a quid pro quo for rights with respect to the child.  That is contrary to the usual understanding that child support is an obligation owed by people who participate in the creation of a child.  In theory, at least, child support is about the child’s well-being, not the father’s sense of entitlement or grievance.

Stanley provides something of an explanation for the anomaly.  Remember that the Stanley court requires the state to respect paternal rights to the same extent that it respects maternal rights.  In the 1970s, when feminist claims were only beginning to be heard, maternal roles and paternal roles were openly recognized as distinct.  Fathers were responsible for financial support of their children, and mothers were responsible for physical and emotional support.  Many states, including Maryland, did not place an equivalent duty of child support on mothers and fathers until five years after Stanley in a decision based in the state’s equal rights amendment.

Fathers “earned” their right to a place in a family by satisfying the financial duty.  If a father satisfied his duty, he “should” be empowered to do what fathers do in families.  The tradition makes sense of a decision to relieve a man who is deprived of the usual power to make decisions about his child from the usual duty of the father to provide financial support.  It makes no sense, however, once one rejects the traditional approach of differentiated male and female family roles or if one puts the needs of the child over a parent’s sense of entitlement.  Including this provision today, 45 years after Stanley and long after gendered roles in the provision of financial support have been rejected as a form of sex discrimination, is indefensible.

The House bill differs from Stanley in one key respect.  It provides greater protection for the married father to keep his paternal rights than it provides for the unmarried father.  The married father’s rights can be terminated only if he is convicted of nonconsensual sexual conduct; the unmarried father’s rights can be terminated upon conviction or upon clear and convincing evidence that he committed nonconsensual sexual conduct.  Of course, if Peter Stanley had been married to Joan Stanley, the state could have terminated his parental rights only upon a showing of neglect or abuse, so the case would never have gone to the Supreme Court.  The Court’s decision placed the unmarried father, Peter Stanley, in the same position he would have enjoyed had he been married to Joan Stanley.

Why is marriage a privileged status in the House bill, even though Stanley points to the opposite path?  Perhaps the answer is that the legislators want to encourage marriage.  If that’s the case, the consequence is likely to be to also privilege European-American fathers, because marriage rates, while lower now than in the 1970s, still tend to be higher among European-Americans than among African-Americans.  An equally likely motivation is a lingering allegiance among legislators to the traditional claim that a husband can’t rape his wife, no matter what the criminal law now says.

The bill is, at best, a crabbed approach to the interests of a woman who was raped, gave birth to the child and wants to raise the child.  Nonetheless, many of the bill’s features are predictable, given what the Court did in Stanley 45 years ago.  If all men and women are the same, regardless of their engagement in caring for a child, then a child should rarely be deprived of an opportunity to have a “father,” even if the “father” raped the child’s mother.  And if mothers need to be under the control of a man, a rapist might be as good as any other man.

What would a better bill look like?  A better bill would respect and valorize all parents who commit to caring for a child and avoid empowering people who assert rights without entering into relationships.  A better bill would focus on and seek better outcomes for parents who lack privilege.  A better bill would not tread on the autonomy of a committed parent because the parent is female.

I think a better bill would differ from the failed House bill in at least six ways.  Here’s my list:

  1. Paternal rights are recognized only where the biological, adoptive or marital father demonstrates a history of care for and connection with the child or otherwise satisfies the Lehr Mere biological or marital connection is not enough.  Therefore, no termination is required where the man who committed the nonconsensual sexual conduct has not satisfied Lehr, because no paternal relationship is recognized in the first place.
  2. Where a man demonstrates his entitlement to recognition as a father because he has satisfied Lehr, termination is allowed where the mother demonstrates that the child is the result of nonconsensual sexual conduct, either through evidence of the man’s conviction or through clear and convincing evidence of the conduct. No discretion is allowed for a court to deny termination, because the mother should not be forced to have a continuing relationship with a man who committed a violent act against her as extreme as first or second degree rape or incest.  If the mother decides to allow the man to have a relationship with the child, the mother’s decision provides no basis for a court to order the mother to continue the relationship.
  3. The termination proceeding follows the same procedures as are used in other termination of parental rights cases.
  4. The termination of parental rights which is ordered because of rape does not relieve the biological father of the duty to provide child support.
  5. Married and non-married fathers are accorded the same protections from termination.
  6. The duty to assign child support and to cooperate in the establishment of paternity and support is eliminated from public benefits law unless the state proves in a judicial proceeding that a mother’s claim of rape is not sustainable. The mother is entitled to have counsel provided in such a proceeding.

A bill that incorporates at least these six features, it seems to me, starts to address the negative legacy of Stanley.  Such a bill would provide sufficient procedural protections to men who are wrongfully accused of nonconsensual sexual conduct so long as they have also demonstrated a commitment to caring for a child.  At the same time, if conception occurred without the mother’s consent, the man’s claim of parenthood could be challenged with a greater likelihood of success, particularly if he has never made a commitment to the child’s care.  The mother’s opportunity to care for the child is better protected against unwarranted attacks by a man using judicial proceedings without good cause.  Most importantly, a woman who has made the commitment to care and raise a child regardless of the pain she suffered from the assault will have greater autonomy.  The law will not indulge in an assumption that a man with a biological or a marital tie to a child is entitled to the same or even greater authority than the mother has in terms of deciding what is best for the child.  Further, the mother will not have to make a choice between her parental autonomy and financial security for the child, if that security depends in any way on support from the biological father or from the state.

I’m hoping that year ten will prove to be the magic year for Maryland to come to terms with Stanley’s negative legacy and to treat rapists as they deserve when it comes to fatherhood.  I look forward to hearing from readers of Concurring Opinions about my views.

 

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Stanley v. Illinois, Race and Gender

In yesterday’s post, I introduced the 45 year old case of Stanley v. Illinois, described what we know about the Stanley family, and introduced the idea that legal parenthood should be recognized only in parents who demonstrate a commitment of care for the child. Today, I turn to what why I think members of the Court may have believed the Stanley family was African-American and what that may have meant for the decision.

If I am right that the Court could have seen the Stanley case as involving both gender equality and racial equality, there needs to be some reason to believe that at least some members of the Court would have viewed the Stanley family as African-American. I think that reason exists.

When race is not mentioned in a society where European-Americans dominate the conversation, the observer usually assumes the parties to be white. That may or may not have been true when the justices looked at Peter Stanley, however.

Think about the confounding parts of the story. For one thing, the Stanleys had children together but they weren’t married. The Stanley children were born in the 1950s and the 1960s when non-marital childbearing was much more common among African-American families than among white families. For another thing, Joan Stanley was probably employed for wages outside the home for enough time to qualify her children for survivor benefits. At the time, relatively few white women worked outside the home, but many African American women did.

As it turns out, Peter and Joan Stanley were both European-American, a fact revealed by the 1940 Census and probably confirmed by Joan’s burial being handled by a white-owned funeral home. The Court had access to neither source of information. I think it justifiable to assume, therefore, that justices could have read the record to demonstrate that Joan Stanley is an African-American woman and Peter Stanley is an African-American man.

How could the conclusion that the Stanleys are African-American influence justices to view the case differently from a case about European-American families? I think there are at least two ways the justices might have framed the case differently. Each framing has positive and negative aspects when it comes to deciding whether to recognize legal parenthood in a parent like Peter Stanley.

First is the importance of the post-Civil War amendments to the Constitution. Professor Peggy Cooper Davis has examined how the Court could have seen the Stanley case in the context of centuries-old struggles of African-Americans for legal recognition of their family ties.  Professor Davis traces Stanley back to the post-Civil War amendments to the Constitution which were motivated, in part, by the arguments of slaves and of abolitionists about family ties. They argued that one of the worst abuses of slavery was the denial by slave-owners and the law to recognize the rights of slaves to marry and to have the legal rights of parenthood with respect to their children.

Claims about family ties were amplified during the Civil War, when innumerable slaves freed themselves. Many self-emancipated people took refuge in Federal military encampments, where they confronted camp commanders with demands for marriage ceremonies and other indicia of legal and inviolable rights to parenthood of their children. They believed that legal recognition of marriage and parenthood was one of the best ways to defeat the law and practice of slave states to empower masters to separate partners from one another and to sell children away from their parents.

That’s the positive side of the story. There’s also a negative side. Some of the camp commanders looked at the thousands of self-emancipated people in the camps and wondered how to keep them under control. Some concluded that the best way was to require cohabiting people to get married regardless of whether they wanted to. Commanders appear to have been acting out of the view, largely uncontested in the middle of the nineteenth century, that the family was a place of mini-government. That mini-government was not led by an equally-empowered pair of adults. Instead, it was led by the male head of household, the husband and father. Once a woman was married, she would be subject to the authority of her husband, and the camp commander would have fewer people to worry about.

You can see Stanley as reflecting both the positive and the negative sides of the story. Stanley gets recognition as a legal father and protection from unwarranted interference in that relationship, something that slaves never had. At the same time, men in Stanley’s position also get to exercise authority over those possibly-unruly women who bear their children, even in situations where only the mother is taking responsibility for caring for the children.

The second clue to framing possibilities is the Moynihan Report, which was published only a few years before the Stanley decision.  The positive side of the Moynihan Report is that President Lyndon Johnson commissioned it because he wanted to know how to improve the lives of African-Americans. When it was published, however, it shook many people with its claim that the prevalence of female-headed households in the African-American community precluded much of the progress toward civil rights that the Johnson administration wanted to see. The “matriarchy” of the black family was described as pathological. Many people seem to have interpreted the Moynihan report as advocating policies capable of enlarging the power of men in African-American families.

Given the apparent blessing of Daniel Patrick Moynihan, a highly visible and respected public intellectual, it’s plausible that justices who wanted to advance racial equality could have thought it wise to expand the authority of fathers with respect to their children, especially when the father is African-American. At the same time, if the court understood the decision as reducing the independence of mothers with respect to their children, that result could be justified as an appropriate way to restrict some of the power of the black matriarchy. Remember that, prior to Stanley, an unmarried woman who gave birth to a child could place the child for adoption without consulting the child’s biological father. She was also the sole legal guardian of the child. In many states, a paternity finding could result in an order for child support without empowering the unmarried father to seek custody or visitation.  After Stanley, the single father could not be deprived of the rights previously exercised solely by single mothers.

If the Court had understood the Stanleys to be European-American, I wonder if it would have heard the case. After all, if Stanley were a lower-class white man, a ruling in his favor would not be viewed as advancing a racial justice agenda. Enhancing his authority as a father relative to the power of mothers has no obvious advantage in a group where marriage before childbearing is the dominant practice, because the married father already had at least equal power with the married mother in the law. All that ruling for Stanley would do, therefore, would be to enhance legal rights affecting non-marital childbearing in a group that generally avoided the practice at the time.

Any assumptions that justices may have made about seeing the Stanleys as an African-Americans were not revealed in the decision. If some justices believed, however, that a decision in favor of Stanley advanced both racial equality and gender equality, a little more explicit attention to intersecting issues would have been a good idea, particularly when it comes to issues of power. Instead, the Court ends up, I think, embedding into the law of parenthood claims about African-American families and the need for men to control the mothers of their children.

Stanley’s legacy has been that non-marital fathers have gained power and some of that gain has come at the expense of non-marital mothers. The change is positive in the many cases where both parents are actively-engaged and committed to their children. It is also positive when the father, like Stanley, demonstrates his commitment to care for the child and the mother is unavailable or uncommitted. But where the mother is committed and the father is not, the outcome gives him a chance for control over her for the sake of a child who gains no benefit.

The negative legacy of Stanley continues to support legal claims of uninvolved fathers because the Court elevated the individual rights of Peter Stanley over considerations of the relationship that Stanley had with the children. The Court might have had reason to do so if it could not otherwise advance an agenda of racial justice, but it’s hard to make that case without buying into Moynihan’s claims that black mothers are in need of male supervision. What the Court could have done instead was to explicitly recognize the intersection of race and gender and try to deal with both in fair ways. In my view, a relationship-based approach does that by respecting and valorizing the roles that men and women play in the lives of children when they commit to caring for those children.

In my next post, I’ll discuss the negative legacy of Stanley in the context of this year’s failed attempt in Maryland to restrict the paternal rights of men when the child is born as the result of the man raping the mother.

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Stanley v. Illinois and Rapist-“Fathers”

I am delighted to return to Concurring Opinions as a guest contributor.  Many thanks to Solangel for her kind invitation.

My posts this week are about the continuing influence of Stanley v. Illinois, 45 years after it was decided.  Stanley’s legacy is positive in terms of encouraging legal recognition of men as fathers to children for whom they provide care and commitment.  The legacy also includes, however, legal recognition of men as fathers in the absence of any involvement, much less care and commitment.  This part of the legacy contributes to the empowerment of men as parents at the expense, in some cases, of the empowerment of women as parents, an ironic result given the gender equality rhetoric of the decision.

One example of the negative legacy is the ongoing controversy about whether a man should enjoy legal fatherhood when his rape of the mother resulted in her pregnancy.  Later, I’ll address that controversy in the context of the recent failure of corrective legislation in Maryland.

In my view, the negative legacy of Stanley reflects unexamined and intersecting stereotypes not only about gender but also about race.  I argue that the Justices may have assumed, without evidence and without express acknowledgement, that the Stanley family was African-American.  If that speculation is correct, the court may have been pursuing what some justices saw as a racial justice agenda along with gender equality claims.  I will address in my next post where the agenda may have led the court.

First, some background.  In 1972, the Supreme Court decided that Illinois was required to recognize Peter Stanley as a parent, even though he was not married to the mother of his children when she died.  Because Stanley, as an unmarried father, was the surviving parent, the state declared the younger Stanley children parent-less and wanted to take them into care.  According to the Court, the failure of the parents to marry was not equivalent to the evidence of neglect or abuse that would be required if the state wanted to take into care the children of a mother or a married father.  The Court concluded that unmarried fathers were entitled to recognition as parents and the same level of process accorded to all mothers and to married fathers before the state could take their children.

In a concurring opinion that I wrote for Feminist Judgments a few years ago, I agree that Peter Stanley was entitled to parental recognition.  I argued that recognition should not arise solely from Stanley’s biological connection to the children, however.  Instead, Stanley’s entitlement should be based in the level of care and commitment he had demonstrated for his children.

My concurrence reflects two strands of feminist thought.  First, many feminists emphasize that caring relationships should count for more in the law.  Second, many feminists agree that law needs to take stories into account to provide context and support reality-based law-making.  In particular, courts do a better job deciding cases when they see people’s relationships to one another as meaningful, particularly relationships of support and care.  Understanding law in the context of people’s lives, their “stories,” is equally essential.  The Stanley Court did little of either.  Instead, the Court came to a broad, abstract conclusion that all people who claim parenthood through a blood relationship, marriage or adoption are the same, regardless of what any of those people have demonstrated in terms of connection with the child.

I am not arguing that a feminist Justice would have dissented; I agree with the outcome of the case.  The record, as I will discuss, demonstrates that Peter Stanley was involved with his children, shared a household with them, and was concerned for their future.  His marital status should not be cause for depriving him of parental status; only a finding of unfitness should justify that deprivation.

Where the Court and I part company is on the question of why.  The Court justifies its rule on the basis that the father has a right to be treated the same as a mother.  In my view, the parental rights of any person, whether father or mother, should turn on whether the person has a relationship with the child that demonstrates a level of commitment to the child’s care.  Where a person with a formal claim to parenthood, whether through birth, marriage or adoption, has never exercised any commitment to the child’s care, the state should be allowed to disregard that person’s claim to parenthood.

The Court’s focus on equality strikes me as not coincidental, but I’m not sure it was solely gender equality that the justices were thinking about.  In my view, at least some of the justices saw Stanley as part of the Court’s racial justice jurisprudence.  In light of this possibility, it also seems important that members of the Court probably thought Peter Stanley and his family were African-American, as I’ll discuss later.

The case is a good example of how claims about racial justice and claims about gender justice may lead to confounding results if not understood and examined contextually.  Empowering Peter Stanley to resist state intervention into his family because of his biological attachment to the children has been interpreted over the years since as empowering all unmarried fathers to be recognized as parents.  Once recognized as a parent, these men have the opportunity to restrict the autonomy of the mothers of their children in parenting decisions such as adoption and custody.  That outcome is inconsistent with preferring involved, committed and caring parents, whether male or female, over others whose connection to a child is solely formal or biological. Ironically, that outcome is hostile, in many cases, to respecting women’s equality.  The risks may be greatest for women of color.

My conclusion is that a relationship-based approach to Stanley’s claims would not have led to a different result for Peter Stanley.  Because a relationship-based approach adds context to the question of who should be recognized as a parent, further, it would help to counter the empowerment of the uninvolved parent that has been the negative legacy of Stanley.

To understand Stanley, it helps to know something about the story of the Stanley family.  The record, however, is scanty.  Here’s what we know from the record and additional research.  Peter and Joan had a long-term relationship and may have believed they were married, although no documentation was ever uncovered.  All accounts show them living together during the last few years before Joan’s death.  For the 17 or so years before that, they lived together continuously or intermittently, depending on whose account is accepted.  Their oldest child was found to be neglected at some point before her mother died.  The two younger children were born in the last few years before Joan’s death, and they were living with Joan and Peter when she died.  We also know that Social Security survivor benefits were paid for the three children, which seems to mean that Joan Stanley earned a salary for some period of time.  Money was tight, at least after Joan’s death.

Here’s some of what the Court’s record does not reveal:  whether Joan or Peter would identify themselves as African-American or European-American, what they did for a living, whether both provided economically to the family, what led to Joan’s early demise, whether Peter cared for her during her illness, and what the oldest child experienced before or after her mother’s death.

In my next post, I’ll discuss why I think members of the Court may have regarded the Stanleys as African-American and what that may have meant to them.

 

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The “Shock and Awe” Response to Hillbilly Elegy: Pondering the Role of Race

In my prior posts about Hillbilly Elegy (here and here), I’ve noted some reasons for my struggle to understand the overwhelmingly positive response to J.D. Vance’s 2016 memoir.  Actually, positive is too general a descriptor.  There is often what I call a “shock and awe” character to the response, a “there are actually people like Vance and his family out there in America” response.  Who knew?  And who knew male seahorses gestate the offspring?  Who knew the Okavango River flows inland?  Who knew the Dutch are the tallest people in the world, excepting some small African tribes?  But I digress …

It’s not clear if this initial incredulity regards (1) the white socioeconomic disadvantage and dysfunction from whence Vance comes or (2) his meteoric rise from Appalachia to Yale Law School and on to Peter Thiel’s Mithril Capital.  I’ve already opined on why we should not be surprised by the former, so in this post I’ll say more about the latter.

First, however, to illustrate just how over the top the media response to Hillbilly Elegy has been, let me quote a few reviews.  Bloomberg identified the book as “the most popular choice for best book of 2016.”  Ok, well, popularity doesn’t necessarily equate to quality, but the venerable New York Times, my own media polestar, called the book a “a compassionate, discerning sociological analysis of the white underclass.”  I’ve already explained why I don’t see it as discerning.  As for compassionate?  Maybe in the vein of Bush’s “compassionate conservatism,” but that doesn’t seem to be a thing any more–if ever it was.  I assume that The Economist reviewer would agree with me on the (lack of) compassion point because he concludes that Vance is a “conservative in the oldest and best sense.”  It’s perhaps not surprising, then, that this reviewer opines that “you will not read a more important book this year.”  In short, the reviewer falls hook, line and sinker for Vance’s tough love, personal responsibility prescription, calling it a “bracing tonic.”

One reason I am surprised by the glowing reviews (especially among left-leaning outlets) and the “millions sold” is that I would not have expected 21C Americans–particularly among the chattering classes (and I know a shocking number of law professors who have read this book)–to be so interested in a story of white class migration.  I thought Horatio Alger characters were a creature of history, that American dream, up-by-your-bootstraps narratives were yesterday’s news.  Didn’t our attraction to such delusional thinking fade once we discovered/identified/named white privilege?

In the world in which I live and work, white privilege is often referenced as if a magic bullet, a miraculous cure-all that permits people with white skin to achieve any and all that their hearts desire.  I often hear phrases like “white people’s problems” and “you’re white, you’ll be alright” tossed about casually.  At a minimum, whiteness greases the proverbial skids on the road to success, though we often treat it as much more potent than that.

Broadly speaking, the academy is highly attuned to structural racism and bias based on race/ethnicity–and appropriately so, in my opinion.  Peggy McIntosh tells us that the invisible knapsack of white privilege means that whites “can be pretty sure of renting or purchasing housing in an area which [they] can afford and in which [they] would want to live.”  (“[W]hich they can afford” is a rather important qualifier, no?)  Bernie Sanders told us during the 2016 primary:

When you’re white, you don’t know what it’s like to be living in a ghetto.  You don’t know what it’s like to be poor.

But this isn’t accurate, and surely–somewhere in the deep recesses of our memories and minds–we are aware of this inaccuracy, this failure to see or acknowledge white poverty.  Yet it seems to have taken Hillbilly Elegy‘s publication to surface that reality, however opaquely.  Still, how many of you have made the connection between what (I hope) you know about the existence of white poverty and the economic landscape depicted in this bestseller?

A majority of those experiencing poverty self-identify as white.  Yet like the academy, the media very often conflate our racism problem with our poverty/inequality problem.  See here and here.  The suggestion is often that black people are poor because they’re black, and of course there’s truth to that.  Trina Jones expresses the phenomenon eloquently:

Somehow . . . race and class become mutually reinforcing. Blacks are poor because they are Black and Blackness gets constructed as poor. That is, poverty becomes a constitutive element of Blackness. Blacks are not only lazy [and] intellectually and morally inferior, they are also poor.

So if we have conflated blackness with dependency, have we conflated whiteness with affluence, well-being, and independence/agency?  Arguably, yes.  And if we have done that, where does that leave low-income, low-education whites?  (This is a H/YUUUGE topic, of which I barely scratch the surface in this post).  If they slump or find themselves downwardly mobile or otherwise fail, we look away, ignoring or “forgetting” them (consider the headlines here and here).  If, like Vance, they ultimately succeed–if they become like “us”–we often discount that success by attributing it to their white privilege.

Given that tendency, isn’t it interesting that we’re so captivated by Vance’s story?  (Further illustrating that intrigue, did you know the movie rights to Hillbilly Elegy have been purchased and Ron Howard will be involved in making the film.  I can’t help wonder/worry what combination of “Beverly Hillbillies,” “Dukes of Hazard,” “Honey Boo Boo” “Duck Dynasty” “Deliverance” and ???? will get depicted.  Plus, who’s going to play J.D.?  Sorry, digressing again).

Furthermore, would we feel the same about Hillbilly Elegy if Vance were our colleague?  (Btw, even friends and acquaintances who liked the book are telling me they are tired of seeing and hearing Vance on CNN; guessing it’s a good thing I don’t watch TV.)  What would it be like to have Vance on your law faculty?  Would that just be too awkward given how different he is from “us”?  What if he showed up, fresh out of Ohio State, as our law student?  (that’s a topic for a future post).  Maybe we relish Vance’s story, his success as a token and at a distance, but we can probably imagine what it would feel like to have him around in the flesh, too close for comfort.  We know he wouldn’t really fit in.  And maybe part of the reason legal academics (of all people) and other elites seem to savor the story is that Yale Law School is the ultimate icing on the educational cake.  Maybe we are attached to that “up by the bootstraps” narrative after all.  Maybe Vance affirms our desire to be engaged in–and to be the products of–a meritocratic enterprise.

And that brings me to another “race” question:  Would the Black/African American equivalent of Hillbilly Elegy have spent so many weeks on the New York Times bestseller list?   Or could/would such a hypothetical book–in an era when the Obamas’ autobiographies have been valued much more highly than prior U.S. presidents–leave Hillbilly Elegy in the dust?  Maybe so.  In fact, we may already have our answer to that question in Dreams from my Father:  A Story of Race and Inheritance.   

Oh, and for the record, I love that book.  Really love it, as reflected in some of my ponderings about it in 2009.  Barack Obama is not only a much finer writer than Vance, I found his reflections more thoughtful, mature, nuanced (and maybe he had a better editor because I don’t recall him going on and on and on).  But I admit that familiarity breeds contempt, and Obama told me a story and introduced me to a world I didn’t already know.  Sadly, I can’t say the same about Vance.

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Carol Sanger Replies to Khiara Bridges: Medical Care and the “Down There” Problem

In the 1960s, a friend from ages ago went to a new gynecologist for a regular check-up.  As she lay there on the table, feet in stirrups covered with kitchen oven mitts in a gesture toward patient comfort, the doctor came in and said, “Hello, I am Dr. [Smith]. I am going to examine your body and then I will look ‘down there.’”  My friend replied, “’Down there’ is part of my body.”  (I can’t remember if she got up and left or not; it was the 60s and we were still fairly obedient.)

Whether  “down there” is part of one’s body for purposes of medical treatment is the question asked and very quickly answered by Khiara Bridges in her post “Abnormalizing Abortion.”  The answer is No, not if we use the term “medical treatment” to mean the treatment or prevention of all other medical conditions covered under Medicaid.  This was established under the Hyde Amendment, which bars federal Medicaid funds even for a pregnancy that endanger the woman’s health or life, or that was caused by rape or incest.  The “down there” issue has now become federal policy, as abortion is now a form of treatment literally segregated from the body politic.

Bridges uses About Abortion, and my interest in how abortion regulation tries to convince women not to terminate their pregnancies through moral suasion (and to punish women who do it anyway) as a point of departure toward other forms of regulation.  The Hyde Amendment isn’t a bit interested in moral suasion.  Instead, it sets a bright line rule at the poverty level that “coerces indigent women to carry their pregnancies to terms by leaving [the women] to scrape together the $300 to $3,000+ for their abortion procedures.”

Not only does the Hyde Amendment have actual power over an indigent woman by its refusal to fund an abortion procedure, but as Bridges powerfully points out, the denial of funding is rich with “discursive power” “insofar as it creates and legitimates discourses that describe abortion as ‘not healthcare.’”  Her point is that while I have focused on normalizing abortion, we ought to be attentive to just how and how forcefully law “abnormalizes” abortion by segregating it from all other healthcare.

By most people’s lights, abortion is a medical procedure even if one thinks the procedure should be illegal.  Its status as medicine is the basis of its regulation by the federal and state governments under the police power, that relic of 7th grade physics that still has purchase today in Constitutional Law.

Abnormalizing abortion through funding bans is of a piece with the battle to cover contraception under Obamacare, with the layers of regulation that treat it differently from all other procedures, and the global gag rule.  Moreover, the funding ban only applies to poor women, who are more often women of color, so that this form of maternal coercion, as Bridges points out, is tinged with race.

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Hillbilly Elegy as Rorschach Test

I have already made clear in a prior post some of the reasons I am not a big fan of Hillbilly Elegy: A Memoir of a Family and Culture in Crisis, J.D. Vance’s best selling 2016 memoir:  I think Vance is using his personal narrative to advance a neo-con agenda (and I will freely admit I don’t trust anyone who would work with Peter Thiel).  Further, I don’t think the book lives up the hype.

But lots of folks I know and respect do like the book, and they have been willing to defend it.  Following are my recollections of some of the conversations I have had about Hillbilly Elegy, most of them initiated by my friends and acquaintances rather than by me–for whatever that’s worth.  In any event, recalling these has me pondering the book as “Rorschach test,” that in which we can see what we choose to see.

Family, Luck and the Luck of Family.  When I opine that I see Vance takes too much credit for his success (which is not to say he deserves no credit) and focuses too much on the staple of conservative politics, “personal responsibility,” several friends have disagreed.  One said “No, he doesn’t take credit.  He says he got lucky by virtue of his stalwart grandparents who loved him” and kept him between the ditches (the latter part being my hillbilly paraphrase of what my friend actually said, which I don’t recall verbatim).  Ok.  Fair enough.  Yes, he appropriately gives his grandparents lots of well-deserved credit, and I relate to that.  I would never have made it to college or beyond without my mom and other key folks in my community who encouraged me and expected great things.  But family and friends as cheerleaders will not, alone, get you through college or graduate school–especially when they have never been there themselves and can rarely help you set appropriate goals.

It’s Really Complicated.  When I told another friend that I think Vance takes too much credit for his success, she (a Harvard educated lawyer) said, “Oh no. What he is saying is that it’s all very complicated.”  Well, I can hardly argue with that.  Of course it’s complicated!  But this is sorta’ like Donal Trump saying health care reform is complicated or the North Korea situation is complicated.  Are you kidding me?  The fact that the world didn’t know it was “complicated” before J.D. Vance published Hillbilly Elegy is, frankly, embarrassing.  (In this vein, read Alec MacGillis’s excellent piece in The Atlantic).  People living below, at, or hovering above the poverty line have very difficult lives–even if they are white (and I hope to return to the matter of whiteness in a dedicated way in a subsequent post).  Reports of what are now being called “Deaths of Despair” among low-education whites came out as early as 2013, such as here; among these is Case and Deaton’s high profile study in the fall of 2015.  We should know that these folks exist and that when they are able to escape the bonds of the low-income, low-education world, it pretty much requires a harmonic convergence–a small, multi-faceted miracle–every time.  It takes some combination of family support, mentoring, lucky breaks (which can include stable grandparents, like J.D.’s), sheer native ability, perseverance, grit and–yes–hard work.

Oh, I would argue that it takes “the state”!  Vance talks only vaguely of Pell Grants, government-backed student loans, or work study–or any other way that his family received any benefit from government policies, be they the EITC or food stamps or  … How about his public university degree from Ohio State?  the GI Bill?  In the last chapter, which is his policy recommendations chapter, he does refer opaquely to his grandparents’ Social Security, so there’s that.  Maybe I overlooked the structural stuff.  But for the most part, as Sarah Jones highlighted in her New Republic review, Vance writes as if the state is not an actor, either by omission or commission.  Really?  Can it be that the state was irrelevant to Vance’s class migration?  that all the state did for him is permit him to become a Marine and thereby bootcamp some discipline into him?  Is this absence of government what so many across the political spectrum find so appealing about Hillbilly Elegy?  Further, is it possible that the state can or should play little or no role in the plight of those left behind?

Memoir vs. Policy Manual.  When I told another acquaintance–a childhood  immigrant from Poland, a relatively recent University of Michigan law graduate–that I found Vance’s dalliance in policy matters annoying and regressive, she said she hadn’t really noticed, had skimmed over those parts.   She then allowed that the book probably worked better as a memoir than as a policy document.  I agreed.  But I was also somewhat puzzled that this white class migrant (her father was a truck driver, just like mine, and she, like Vance, had served in the military) had  been so taken with Vance’s narrative, his version of events.  Her own journey didn’t sound terribly different to his (though I assume the absence of extreme parental dysfunction and addiction)   That journey had, however, taken place in a major American city rather than a corner of Appalachia, which may have sufficiently differentiated it from her own to make Hillbilly Elegy interesting in her eyes.

Window into Another World.  A well educated, thoughtful and sage (yoga instructor, no less!) friend from an “old money” family back East asked me what I thought about Hillbilly Elegy.  Her book group was about to discuss it, and she said she felt the book was providing her insights into the value of relationships and people whom she would previously have dismissed as uncouth at best.  Specifically, she said that if she had met Vance’s cursing, gun-toting grandmother, she would have been entirely  disdainful–until she read the book, that is.  Hillbilly Elegy had helped her to see the value in Vance’s Mamaw.  I said, “fair enough, but read what I have written about the book,” and I passed along a partially written review.  It is self-serving to report, but my friend came back with, “yes, I can see your reflections on your upbringing are more mature and thoughtful than Vance’s. Nevertheless, I did benefit from Hillbilly Elegy as a window into another world.”  And this brings to the last of the exchanges that I will share …

Is Vance Seasoned Enough to be Publishing a “Memoir”?  As I have previously mentioned, not many written reviews of Hillbilly Elegy have been anything other than glowing.  In addition to the Sarah Jones review I have already cited and quoted, I have read very little negative commentary about the book.  Some of the few “bad” reviews I have seen were in the Daily Yonder, an online publication/blog of the Center for Rural Affairs (I know you are chuckling, but this is a serious outlet for rural perspectives and rural news).  They published three reviews, none of which was very flattering, and  two of which called out the inappropriateness (and perhaps even absurdity) of someone publishing a “memoir” at the age of 31.  One, Jim Branscome, a former managing director of Standard & Poor’s and a former staff member of the Appalachian Regional Commission, quotes Vance’s own book introduction.

I find the existence of the book you hold in your hands somewhat absurd.

Branscome then summarily agrees with the statement.  In another review, Charles L. Baker, a native of Eastern Kentucky and retired CEO of Presbyterian Child Welfare Agency, expands on that notion:

J.D. Vance lacks the maturity to see the blind spots that trouble his book… The culture he blames for spreading failure gave him some of the values that helped him succeed.  And the government he says institutionalized poverty in Appalachia helped him find a way into the middle class.

Baker’s review–like that of Sarah Jones–reminds us that Hillbilly Elegy is not just the story of Vance’s escape from Appalachia, it is the story of the multitudes left behind.  (This, of course, is why CNN regularly brings Vance on to educate the viewing public about the supposedly quintessential Trump voters).  The book’s importance is as much or more in what it says about the failures of Vance’s people as it is about Vance’s “phoenix from the ashes” success.  Don’t doubt, though, that both aspects of the book have made it especially popular among conservatives and libertarians.  Vance gets to be the poster child for Reagan’s vision of the potency of personal responsibility.  Yet many of us who have trod that path are less likely to “lean into our own understanding,” much less take so much credit for our own success without also acknowledging the many structural handicaps that hold back our communities and families of origin.

As for Vance’s maturity, I acknowledge that a childhood and youth like J.D. Vance’s will prematurely age a person.  It’s an exhausting way to live, and that which doesn’t kill you will not only make you stronger, it will often result in what I shall call premature maturity.  Nevertheless, Vance, a few years out of Yale Law, is surely nowhere close to maxing out on wisdom.  I wonder how the decades to come might lead him to reflect differently not only on his own journey, but also on what his people need, on the array of factors that are holding them back, keeping them down. (You may have heard that, in recent months, Vance has moved back to Ohio where he will be using some of the fruits of his labor to start a foundation; I anticipate a run for public office in his near future.)

I am thinking it is no coincidence that the few naysayers about Hillbilly Elegy that I have managed to identify are mostly from the region, and some of us are class migrants.  (Other important reviews of Hillbilly Elegy from those in the region are here and here; Jedediah Purdy, who grew up in Appalachia and teaches at Duke Law reviews the book here, though he is more descriptive than critical). We see a greater role for the state in places like Appalachia and the Ozarks and, like Vance, we have first-hand knowledge of the milieu.  We see the structural barriers to not only getting to Yale Law School (and few from any place or milieu even aspire to that), but the ones that keep kids from getting through high school or enrolled in community college or securing a decent blue-collar living.

In the 2016 election cycle, Democrats seem to have neglected these people and what government can (and should?) do for them.  Indeed, Hillary Clinton hardly showed up in rural America.  If liberals think Hillbilly Elegy represents some “gospel truth” about low-income, low-education whites, they may well continue down the current path of self-destruction, failing to prioritize races in rural places with large white working class populations (read more here and here).

In closing this post, let me return to Sarah Jones of the New Republic, because I can’t sum up my feelings about the election of 2016 and what working class whites need and deserve any better than she did (emphasis added):

By electing Trump, my community has condemned itself to further suffering. … Our schools will get poorer and our children hungrier. It will be one catastrophic tragedy out of the many a Trump presidency will generate. So yes, be angry with the white working class’s political choices. I certainly am; home will never feel like home again.

But don’t emulate Vance in your rage. Give the white working class the progressive populism it needs to survive, and invest in the areas the Democratic Party has neglected. Remember that bootstraps are for people with boots. And elegies are no use to the living.

I’ll be returning soon with more thoughts on other important issues that Hillbilly Elegy brings to the fore.

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On Donald Trump, J.D. Vance, and the white working class

Thanks for the opportunity to guest blog here at Concurring Opinions. Though I am a law professor on a law faculty, I plan to spend much of the time and space afforded by this blogging invitation to write more about politics and culture than about “law” in a narrow sense. Indeed, a great deal of my scholarship over the past decade has drawn heavily on politics and culture, and I’ve even had the opportunity to engage in some political punditry post-Election 2016.  I plan to write some posts about rurality, yes, but I’m also going to write a series of posts about low-income, low-education whites, a population with which we as a nation have a newfound fascination following the election of Donald Trump, who drew considerable support from this demographic segment. I hope readers will provide some feedback on these musings, as I am engaged in ongoing, more substantial writing about this population as a critical race project, exploring what is at the particular intersection of white skin privilege with socioeconomic disadvantage and distress.

I’m going to begin with some musings on J.D. Vance’s Hillbilly Elegy: A Memoir of a Family and Culture in Crisis (HarperCollins 2016), a book that has been widely reviewed—and nearly as universally praised—since its publication early last summer. If you think you’ve read all you need to know (or all you can stand!) about this bestseller, bear with me.  I’m not going to join the resounding chorus of praise you’ve you already consumed regarding Hillbilly Elegy.  Further, what I find interesting about the book is less its content than the elite, coastal reaction to it. (Yes, fellow law professors, when I say “elite,” I’m talking about us, you and me, along with the media and other privileged institutions of the narrating classes/interest public.)

Let me preface my comments by outing myself as a class migrant and a hillbilly. Vance grew up in Appalachia; I grew up in the Arkansas Ozarks, both high and/or persistent poverty white regions. I’m a first generation college graduate (and, as a law graduate, a first generation professional), and I’m not sure if Vance also is, given that his mother was a nurse.  Nevertheless, we’ve both migrated from being low-income, low-status whites to being higher status whites, largely by virtue of access to and consumption of a great deal of higher education.

Shortly after Hillbilly Elegy was published, one of my former law professors asked me, only partly tongue in cheek, if I had written the book—then quickly added, maybe “you should have written it.” (This makes for an interesting reminder that I was apparently not class passing very effectively back in law school). You get the idea: my own life story shares many similarities with Vance’s (though I’m two decades older, and upward mobility for po’ folk has declined over the 20 years that separate me from J.D.), sans the elite law degree (my J.D. is from the University of Arkansas, Vance’s from Yale).  This latter distinction may be quite significant in any number of regards, and I hope to return to that point in a subsequent post.

While I have reflected on my own class migration in some law review articles (here and here), I did not reach for the brass ring of a popular press book contract. So, alas, J.D. Vance is a millionaire, best-selling author who appears regularly on television as everyone’s  favorite “white trash ‘splainer” and I continue to toil away in the obscurity of my Ivory Tower.  All of this means, among other things, that if you think I’m too hard on Hillbilly Elegy, you can write it off as sour grapes.

Let me begin, though, by telling you what I liked about Hillbilly Elegy. First and foremost, before I started reading it, I loved the fact that someone had written a book about this milieu—my people, too, I assumed—and that the media outlets I consume (mostly liberal, all elite) were paying attention to it. I sent lots of affirming Tweets, cheering on the new book.  Second, once I finally started reading the book, I found that the memoir parts (as opposed to the social science blurbs and policy suggestions) of the book rang authentic, so much so that I found myself both laughing and crying at the tales of Mamaw and Papaw. I, too, grew up in a family of straight-talking folks who often expressed themselves in colorful language, delivered at high volume, sometimes with guns. Many of the vignettes resonated strongly with me based on my own hillbilly upbringing.

Third, I thought Vance provided an occasional insight into his people, who seem closely akin to “my people.”  For example, Vance talked about their attitudes toward Obama, noting, among other things, that “[h]is accent—clean, perfect, neutral—is foreign; his credentials are so impressive they’re frightening…he conducts himself with the confidence that comes from knowing that the modern American meritocracy was meant for him.” With this passage Vance contrasts the knowledge in his Ohio community—a realization that hit at about the time “Obama came on the scene”—that “the modern American meritocracy was not built for them.” (p. 191).  Ah, yes, meritocracy, shmeritocracy.  Guinier refers to The Tyranny of Meritocracy, a title that speaks volumes.  “Meritocracy” has actually come to be for only a select few, and they are not by and large the children of Appalachia and the Ozarks.  Read more here.

My read is that Vance is opining that the disaffection of the white working class is not so much about race as the mainstream media seem to have concluded. It is more about a growing sense that working class whites’ prospects are declining, and this has happened more dramatically as elites have come to dominate both the Democratic and Republican parties.  I also give Vance credit for calling our attention to white working class distrust of the mainstream media—even before the election made it an undeniable force. Indeed, Vance notes–months before the election of 2016–the significance among hillbillies of Alex Jones and others who perpetuate what we now call “fake news.” (p. 192)

Yet contrary to many reviewers’ opinions, I did not find Hillbilly Elegy especially well written—even acknowledging that it would take extraordinary skill to write about a life permeated by such sensitive and stigmatized matters, e.g., domestic violence, drug abuse, gun toting grandmothers. Nevertheless, a much stronger memoir of a low-income, dysfunctional white family and the author’s escape from it is Pulitzer Prize winning journalist Rick Bragg’s All Over But the Shoutin’ (1998). A much more compassionate depiction and far more incisive commentary about this milieu can be found in Joe Bageant’s Deer Hunting with Jesus: Dispatches from America’s Class War (2007). Among tales of class migration, Alfred Lubrano’s Limbo: Blue-Collar Roots, White-Collar Dreams (2005) is superb. I don’t recall those books garnering nearly as much media attention as Hillbilly Elegy, but that may be because the one thing Vance got most “right” was his timing.

So why have so many reviewers been complimentary of Vance’s writing? I have two theories. First, reviewers may be surprised that anyone who grew up with so much childhood and adolescent trauma—in Appalachia no less—is capable of writing a solid sentence, let alone a solid paragraph.  (Yes, I’m suggesting a best selling memoir should require more than that).  Alternatively, reviewers may give any graduate of Yale Law School a free pass—that is, Vance may enjoy a presumption that he is a good writer because he earned a law degree at Yale. Vance does in the book’s latter chapters acknowledge the extraordinariness of his elite education and the doors it opens (chapters 12-13).

Hillbilly Elegy is also made less readable by Vance’s distracting practice of peppering policy prescriptions (e.g., food stamps (SNAP) are bad because poor white folks abuse them (p. 139); unregulated payday lending is good because it gives poor folks choices (p. 185)) awkwardly amidst his first-person narrative. Sometimes these are accompanied by social science or other evidence to bolster a point, or to explain the psychology of a phenomenon he has experienced by virtue of his traumatic upbringing. Sarah Jones, writing in the New Republic, called the book mostly “a list of myths about welfare queens repackaged as a primer on the white working class.” (Indeed, I recently published an essay arguing that our nation increasingly views these two populations similarly, showing no more sympathy (or empathy) for poor whites than for poor blacks.) Even more problematic, to my mind, is Vance’s use of those myths to advance a regressive policy agenda.

In my next post, I’ll return with a more substantive critique of Hillbilly Elegy–and, implicitly, a commentary on the book’s fans.

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Frontal Lobe or A Softer Take on The Twenty-Fifth Amendment and Mental Illness

Gerard makes a good point about the Twenty-Fifth Amendment, but there may a related idea that helps (and shows the limits of the Amendment). Perhaps the President, as with many folks as we age, has a front lobe problem. These ideas apply to many more than the President.

There is some evidence that our frontal lobe decays as we age; when that happens executive control goes down and we are less able to manage many things. This abstract for the paper Aging, Executive Functioning, and Social Control says it all rather well

Aging is associated with atrophy of the frontal lobes of the brain, which are the seat of executive functions. Because successful social functioning often requires executive control, aging can lead to unintended social changes via deficits in executive control. In this article I review evidence that, due to losses in executive control, aging leads to increased prejudice and social inappropriateness and, under certain circumstances, increased depression and problem gambling. I then discuss theory and research suggesting possible interventions that might ameliorate unwanted social changes brought about by executive decline.

Yes. The part of our brain that is “the seat of executive functions, which include tasks such as planning and controlling thought and behavior” decay with age. This change can lead to “poor executive functioning, including reduced ability to inhibit irrelevant or unwanted thoughts.” How does this play out? It seems a variety of things can happen.

Prejudice: “Automatic or unintentional stereotypic thoughts appear to be common in most people (Devine, 1989), and it might be that older adults have greater difficulty inhibiting these stereotypic thoughts despite their efforts to avoid being prejudiced. Thus, older adults might also be more prejudiced than younger adults because they can no longer inhibit their unintentionally activated stereotypes.”

Inhibition and Social Inappropriateness: “findings suggest a dissociation between knowledge of social rules and the ability to follow them that is consistent with other types of frontal lobe damage.”

Inhibition and Depression: As I read the paper, the results are not settled except that “age-related inhibitory deficits might also contribute to late-onset depression by impairing control of excessive rumination (a tendency to focus on one’s problems without engaging in active problem solving,
which exacerbates and prolongs depression).” The paper is clear that the key issue is “those older adults who rely on inhibitory control to stop themselves from ruminating (either chronically or when confronted by negative life events) are likely to develop problems with rumination if they have poor executive control.”

Inhibition and Gambling: Again not conclusive: “Analogous to the case with late-onset depression, poor inhibitory ability is unlikely to lead to gambling problems in all or even most older adults. Rather inhibitory deficits might lead to gambling problems only among those who struggle with their
impulse to gamble. That is, people who gamble and who are impulsive by nature might be at risk for developing gambling problems as they age, due to losses in the ability to restrain their urge to gamble.”

SOLUTIONS: Apparently we are able to exercise and control earlier in the day rather than later.

Another paper notes the limits of the above findings, and both call for longitudinal studies to understand how things change as we age.

Nonetheless, although arm-chair psychology has problems, the list above seems to map rather well to President Trump’s behaviors. None of that excuses them. Unlike our parents, or us as we age, the President’s statements, orders, and actions have consequences that affect hundreds of millions, if not, billions of people. If the above is useful or interesting, I expect someone could and will track the President’s habits and look at time of day. As Gerard noted, it is unlikely these traits will rise to incapacity. And yet, as with our elders and us as we age, at some point, someone gets to run tests and see whether everything is working well. Again for the Office of the President whether we want such tests seems to be answered as no. Both or any party is not to be trusted with such a tool. But that is a problem for another time.

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Feminist Legal Theorizing about the Second Amendment: What Heller Missed

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In my previous post, I suggested that it’s long past time for a feminist analysis of the right to keep and bear arms.  Drawing on my forthcoming article, “Guns, Race, and Sex,” this part follows the Court’s lead in Heller v. McDonald by examining the ratification history of the Second Amendment.

In Heller, the Court split the provision’s text into two parts.  The majority decided that the second (“operative”) clause, supported by the first (“prefatory”) clause, equaled an individual right to possess and carry weapons for self-defense purposes–not limited to militia service.  But closer examination of the Amendment’s terms and the context surrounding its ratification suggests structural purposes extending the individual use of firearms.

Based on their experience dealing with a distant and detached sovereign, among other things, the framers were deeply troubled by the prospect of a standing army.  To them, professional soldiers would be loyal to and help empower central government.  At the same time, they recognized the need for national security.  As a result, the Second Amendment reference to the militia reflects a compromise among the framers to provide for defense, but doing so in a way that would not jeopardize state sovereignty.  Put differently, it’s another check on federal power.  Framers believed that the state’s citizens—local men—would be the best guarantors of peace.  Those men were “the people” the Amendment references, which further suggests that this phrase has structural significance.

Read More

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Feminist Legal Theorizing about the Second Amendment: Gun Violence is a Women’s Issue

Thanks so much, Naomi, for inviting me to blog this month.  It’s really an honor and pleasure to participate in the lively discussion on this forum.

Starting today, concealed weapons will be allowed on college campuses in Texas.  Ironically, this new law goes into effect on the solemn anniversary of the state’s largest mass shooting at none other than its flagship institution, the University of Texas.

More guns.  Just what we need.

After all, there haven’t been enough headlines about Black lives lost at the hands of police, or stunning murders of white police officers as they protected Black Lives Matter protesters.

Please forgive my sarcasm. I’m frustrated.  Before this year is out, I’m sure there will be more tragic slayings, more outpourings of grief and recrimination, but still no movement toward sensible reform of gun laws.

And, amidst the din, there is little to nothing coming from feminist legal circles.

Two summers ago, Nation commentator Dani McClain argued that “the murder of Black youth is a reproductive justice issue.”  Her call to action came to mind when I saw the “Mothers of the Movement” during the Democratic National Convention.  The mother of Jordan Davis, who was shot for playing his music too loud, openly hoped for a time when membership in this “club of heartbroken mothers” would shrink.

I had been puzzling over this issue for a while, struck by the no-regulation-no-time stance of the National Rifle Association.  In the context of reproductive justice, many have argued with success that the state’s interest in potential life trumps women’s fundamental interest in bodily integrity (thankfully, with Whole Woman’s Health v. Hellerstedt, the Court finally has drawn a line over which states cannot cross).  Imagine if potential gun buyers had to jump through the same hoops as women seeking abortions. As district court judge Myron Thompson stated in Planned Parenthood v. Strange, the legislature would have “a heck of a lot of explaining” to do.

Hypotheticals aside, it doesn’t take much digging to see the gendered and raced aspects of gun violence.  An August 2015 survey by the Ms. Foundation for Women showed that violence is a top concern for women.  Firearms figure prominently in the domestic violence context.  According to the Pew Research Center, gun owners are predominantly male and white—they are 82 % of firearm owners.

So, in the next three blog posts, I accept McClain’s challenge and apply a feminist analysis to the issue of guns in the nation.  Given the medium, the exploration will be brief; but, I discuss it more fully in a forthcoming article upon which my posts are drawn, “Guns, Sex, and Race:  The Second Amendment through a Feminist Lens,” which will be published in the Tennessee Law Review.

The feminist lens that I’m using is one that is intersectional and rooted in feminist legal practice:  social justice feminism (SJF). SJF emerged from practitioners responding to the calls from women of color and other marginalized women to recalibrate the women’s movement with a focus on their needs.  As my colleague Kristin Kalsem and I have explained, SJF is about uncovering and dismantling social and political structures that support patriarchy, while “recognizing and addressing multiple oppressions.” SJF methodologies focus on historical context, structural inequities, intersecting oppressions and underserved populations.  In so doing, they reveal issues liberal feminism might fail to recognize as having gender implications.

SJF’s historical method looks to the past in order identify the roots of structural inequalities and dismantle them.  In this sense, SJF follows in the footsteps of feminist and critical race theory in seeking to uncover lost histories, elevate the experiences of marginalized people, and reveal how traditional historical narratives mask and perpetuate subordination.

In the posts that follow, I will apply this methodology to the Court’s decisions in Heller v. District of Columbia and McDonald v. Chicago, cases that relied heavily on a so-called originalist telling of history.  However, SJF reveals the context omitted by the majorities in both cases—one that helped lay the foundation for a race-and gender-based social hierarchy.