The "Atmospherics" Around Constitutionalism & The Healthcare Law

By Richael Faithful

On Wednesday the House of Representatives will vote on H.R. 2, the "Repealing the Job-Killing Health Care Law Act," otherwise known as the Republican bill to repeal the health care law (Affordable Care Act). Throngs of legal scholars have defended the health care law's constitutionality--including over 100 professors who have recently signed the American Constitution Society's statement to that effect. Simply put, leading constitutional thinkers have reached a consensus that the federal government's authority exercised through the healthcare law is "unambiguous." So, if the people who think and breath the Constitution, from the ideological left and right, have no question about the law, why the fuss?

The fuss boils down to what some are describing as "radical constitutionalism" by certain political communities and constituents, namely the so-called Tea Party Movement. I use the less generous and sound-bite worthy term "selective constitutional literalism." The reason that some of the public is ignoring the constitutional experts is because they deeply believe in literal constitutional interpretation in which a person can read and point to a specific clause to refute or bolster broad claims about the law or their own rights. From this perspective all matters of law and policy are simple matters; the health care law's health care mandate provision is unconstitutional because there is no express constitutional language about the federal government's authority to require health care coverage. Why is Big Government trying to make me buy their insurance? Isn't it my right to do what I want with my money? My health is my own business, not theirs. End of story.

In reality, the health care law is really the beginning of a very interesting and important conversation not about its constitutionality, but on its opponents' socio-legal philosophy, as framed by Tom Ashbrook's On Point show, "Congress & Constitutional Arguments." Here, two constitutional scholars, a law/politics reporter, and the host illuminate that public backlash against the health care law, based on supposed constitutional principles, is little more than an isolated and selective reading of the Constitution, one which is frozen in a revisionist 1787 history.

The discussion highlighted two important points: 1) the Constitution must be read and understood in its entirety of have any coherent meaning; 2) it is fundamentally a pro-tax document which expressly invested the federal government with expanded powers over time via the Amendments; and 3) popular constitutional literalist movements are usually driven by "atmospherics" such as political and cultural skepticism of constitutional authorities (i.e. the country's first Black President, Barack Obama). The most disturbing fact is that the so-called Tea Party Movement reflects a widely-held belief that the Constitution is a literal, static, and ahistorical source of law, much like The Bible. In other words, Americans just don't get the Constitution, despite our democratic obligation as a free people to govern through it.

Most Congress watchers doubt that the repeal bill will go far, as it is expected to die in the Senate. Predictions are about the same for the law in courts, even though the issue may reach the highest court. But perhaps the most significant outcome of this debate is whether constitutional illiteracy will become real, and in effect, kill one of the most significant legislative measures of this century.

Keep Ahead: Interesting American University Law School Spring Events To Look Out For

Perhaps one of the coolest programs at American University, Washington College of Law (home of TMA) is the Founders' Day events. Dean of WCL, Claudio Grossman, through the initiative, funds a number of symposia, conferences, and events during the spring semester based on students' proposals. 

They are free, open to the public, held at WCL in Northwest DC, and usually offer lunch or dinner depending on the time (only registration is required). It's a really neat way for folks to learn about legal happenings, engage in discussion, and connect with other like-minded people.

The Special Events website contains a comprehensive list of the events here. We wanted to highlight several events:


TMA affiliated
Minority Majority: The Social and Legal Implications of a Post-White America, March 23, 6 - 8pm. Sponsored by The Modern American.


Roots & Reality II: Hip Hop, Law, and Social Justice Organizing, April 13, 10am - 2:30pm. Co-sponsored by TMA, WCL chapter of the National Lawyers Guild, Sports and Entertainment Law Society, and corporate sponsors, HBO & BET.


January
12th Annual Martin Luther King Jr. Birthday Commemoration, January 20, 4 - 6pm. Sponsored by the Office of Diversity Services. 


Responding to Anti-Muslim Bigotry, January 26, 12 - 2pm. Sponsored by the Program on Law & Government, and the Center for Human Rights & Humanitarian Law. 


Violence Against Native Women: Is the Tribal Law and Order Act of 2010 A Step Forward? January 27, 12 - 2pm. Sponsored by the Women and the Law Program. 


February
Vulnerable Populations: LGBT Youth in the Correctional System and Foster Care. February 1, 10am - 12pm. Sponsored by the Lambda Law Society and the Labor and Employment Law Forum. 


Housing Justice in the Nation's Capital: Strategies to Preserve Homes and Neighborhoods During the Foreclosure Crisis, February 3, 1 - 5pm. Sponsored by the Community and Economic Development Clinic, the Disability Rights Law Clinic, and the General Practice Clinic. 


Washington "Redskins": Pride or Prejudice? February 15, 6 - 9pm. Sponsored by the Sports and Entertainment Law Society and the Program on Information Justice and Intellectual Property. 


The Freedom Riders and the Progression to Post Racial America. February 17, 5:30 - 9:30pm. Sponsored by the Black Law Students Association. 


Keeping the Needs of Students with Disabilities on the Agenda: Current Issues in Special Education Advocacy. February 25, 9am - 5:30pm. Sponsored by the Journal of Gender, Social Policy and the Law, and the Disability Rights Law Clinic. 


Tribes, Land, and the Environment. February 25, 9am - 5pm. 


To Kill A Mockingbird: An Examination of Race and Justice 50 Years Later. February 28, 12 - 2pm. 


March 
14th Annual Hispanic Law Conference: The Role of the Legal Community in Addressing Latino Issues. March 1, 4 - 9pm. Sponsored by the WCL Latino/a Law Students Association, Hispanic Bar Associations of DC, MD, and VA, and the Latina/o Alumni Association of WCL. 


Immigration Law Conflicting with Human Rights: Families Lost Through Deportation. March 24, 9am - 5pm. Sponsored by the International Human Rights Law Clinic. 


The New "Illegitimacy": Re-visiting Why Parentage Should Not Depend on Marriage. March 25 - 26, 9 - 5pm. Sponsored by the Journal on Gender, Social Policy, and the Law, and the National Center for Lesbian Rights. 


The New Racism. March 28, 2:30 - 5:30pm. Sponsored by the Journal on Gender, Social Policy, and the Law. 


The Fourth Annual WCL Asian Pacific Americans and the Law Alumni Awards Dinner. March 30, 6 - 9pm. Sponsored by the Asian Pacific American Law Students Association and the Asian Pacific American Bar Association of DC. 


April
National South Asian Summit. April 2 & 3, 9 - 5pm. Sponsored by the South Asian Law Students Association and South Asian Americans Leading Together. 


14th Annual Sylvania Woods Conference and African Americans in the Law. April 7, 4 - 9pm. Sponsored by the Office of Diversity Services. 


Soul Food Seder. Sponsored by the Jewish Law Students Association and the Black Law Students Association. 


Tara's Crossing: LGBT Asylum-Seekers and the U.S. Immigration System. April 14, 6 - 9pm. Sponsored by the Immigrant Justice Clinic, Immigrants' Rights Coalition, and the Lambda Law Society. 


The "New" American Workday: How 9 - 5 has become 24/7. April 18, 9 - 5pm. Sponsored by the Labor and Employment Law Forum & the Labor and Employment Law Society. 


Not in the DC area? No sweat. See WCL's podcast collection to listen/watch the event you missed.


If you need practical information about transportation, accessibility, dietary accommodation requests or more, contact The Modern American at tma@wcl.american.edu, refer to this post, and we'll be glad to help. 


See you at the events!

Announcing Fall 2010 TMA Issue - Volume 6 Issue 2

The Modern American is proud to announce publication of the Fall 2010 issue. This issue features five articles and five features on issues ranging from immigrant voting to sex-segregated athletics. Plus, check out exclusive interviews from authors and our LatCrit conference highlight at our website.

Finally, tell us what YOU think. Until March 1 TMA will be conducting a Readers' Survey. A completed survey can enter you into a raffle for an ipod shuffle.

Federal Lawsuit Against Company For Not Hiring Based on "Bad Credit History"

The Equal Employment Opportunity Commission announced yesterday that it is suing test prep-giant, Kaplan, for systemically denying blacks jobs due to their bad credit history. The Title VII (Civil Rights Act of 1964) disparate impact case alleges that Kaplan has rejected applicants so often, for reasons that were not job-related, that their conduct amounted to an unlawful pattern or practice under federal law.

Employee says to manager, "We couldn't hire Jamar because, you know, of his bad credit" (wink & nod).

This is an important lawsuit in the so-called age of colorblindness. If the allegations are true, Kaplan would have used credit history as a proxy for race to deny jobs to qualified candidates. How is this possible? It's pure math.

Blacks possess a fraction of the nation's prosperity in wealth compared to whites, and the gap is actually growing despite the Obamas and the few other well-to-do black families that are in the public eye. A legacy and continued patterns of property denial/predatory access to credit, inferior education, limited job opportunities and advancement, lower earnings, among other barriers connected to past and present racism, bring in and trap Blacks into generational cycles of debt. TMA applauds the EEOC for taking on this issue, even with expected backlash from colorblind proponents.

And for a brilliant illustration of how these systemic forces severely limit individuals' choices and debt-escaping opportunities, check out this post, "If America were a monopoly game."

We couldn't have explained it better ourselves.

Progressive Legal News: Local Community Radio, Second-Parent Adoption Ruling, Lawsuit Challenging the Use of Mace Against Schoolchildren, and Consumer Rights' Case Analysis

Today we came across a number of news stories that should be of interest:

Local Community Radio Act. Timothy Karr of the Huffington Post wrote a nice summary on the passage of this little-known bill-now-law, which will open up the radio airwaves to thousands of local independent radio stations. Great news for people who enjoy a variety of news and media sources.

North Carolina Strikes Down Second-Parent Adoption. This heap of bad news is delivered via a wonderful blog, Beyond (Straight and Gay) Marriage, run by WCL's own, Professor Nancy Polikoff. Not only did the Court rule that second-parent adoption (most often the only means by which same-sex couples can adopt) is not available in the state, but the ruling invalidates all previous adoptions. Professor Polikoff is particularly angry at the biological parent of the former lesbian couple who brought this claim at the expense of North Carolina families. There are just so many reasons to be outraged--so many reasons.

Southern Poverty Law Center Says "You Can't Mace School Children." It's hard to believe that this issue has to be litigated but apparently Alabama has not received the memo that macing school children, as a form of school discipline, is not only wrong, but unconstitutional. SPLC announced that it is filing suit against the Birmingham school officials who refused to address the issue after it had been brought to their attention that armed school guards were macing children, and apparently taunting the students after the fact. Yuck. If this issue is of interest, TMA is featuring in its soon-to-be released fall issue, an essay about the transition of schools into young people prisons, by Lizbet Simmons.

Understanding a Major Consumer Rights Case, AT&T Mobility v. Concepcion. The National Campaign to Restore Civil Rights (NCRCR) Interview Series continues this week with Catholic University's Suzette Malveaux who breaks down a California arbitration class action lawsuit that may have a big ripple effect on consumer protection and the public's access to justice against corporations.

We Always Gotta Choose: Don't Ask, Don't Tell Repeal & The Dead DREAM (Act)

It was a big political weekend for justice-seeking people this weekend. With big votes on the military's Don't Ask, Don't Tell policy and the DREAM Act taking place on Saturday, analysts are still making sense of the not-so-lame-duck session. But, in the meantime, The New York Times offered perspective on the likely impact of the DREAM Act's failure on President Obama's immigration reform agenda, and MetroWeekly shared a concise, helpful history of DADT.


The Modern American is celebrating the repeal of DADT, which we've tracked in recent months, here and here, but we hope that the political season is not so virulently anti-immigrant that some positive legislation can pass next term.  

The Reverse Passing Conversation

Attention race sociologist geeks (or those interested in racial politics):

Our friends at The Root recently posted three articles, seemingly in conversation with one another, about a recently-coined phenomenon discussed in a new study called "reverse passing." It's arguably a new name for the one-drop rule, however, unlike the one-drop rule, it's individuals themselves, not the U.S. government, identifying people as Black despite White ancestry.

First among these articles, "Reverse Passing? Kidding...Right?", obviously takes a certain position; then, a few minutes later appeared a post titled, "Why Biracial Means Black," only to be followed shortly thereafter by "Passing for Black?" Each article begins by mentioning Barack Obama and delves into the history of racial politics around black identification.

We have a variety of our own views here at The Modern American, but we're interested in what you have to say? Do you "reverse pass"? Is this a misguided description? Throw in your two cents.