Restricting Liberty in the Name of Equality

Robust equality is a relatively recent part of the American constitutional landscape, rooted in a limited way in the Declaration of Independence and then formally embraced in the Constitution’s 14th Amendment, ratified in 1868, though it took another near century to buttress that guarantee with meaningful legal force. By contrast, liberty—e.g., of religious exercise, of speech, and of the press—and its attendant guarantee of non-deprivation without due process of law, go back to the nation’s founding if not decades and in some cases centuries before.

In recent years, however, with great domestic and international dynamics at work, there has ascended into prominence and influence a norm of equality or nondiscrimination, or an unabashedly pursued equality of outcome, effectively supplanting the centrality of individual or group liberty as the citizen’s core constitutional guarantees.

Part of this has been achieved by legitimate historical and other academic research and theorizing, though it should be noted that at times the neutrality of those undertaking such efforts may rightly be questioned. Part of this sea change, though, has come from a public and university-sanctioned tolerance for the suppression of viewpoints that conflict with the modern ethos of equality, variously defined. Many of these developments, moreover, have resulted from outside pressures—from interest groups to like-minded accrediting organizations—that seemingly leave the institutions with little choice but to comply with their dictates.

As repeatedly documented by, among others groups, the Foundation for Individual Rights in Education and the Center for Campus Free Speech, colleges and universities ironically have sometimes been the most egregious censors of speech under the banner of equality (or of perceived equal treatment), which perversely betrays a subordination of the time-honored values of truth-seeking and knowledge propagation to relatively fleeting interest-group pressures and ideological expediency.

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NAACP Leader: Photo ID Lawsuit Carries on 140 Years of Voting Rights Struggles

With its challenge to Wisconsin’s voter ID law, the NAACP is carrying on a struggle for voting rights that dates back to the post-Civil War era, James Hall, president of the Milwaukee branch of the NAACP, told the Law School’s Mike Gousha and an audience of more than 100 during an “On the Issues” session last week.

Hall, president of the organization since January 2011, emphasized the importance of voting and the long history in America of disenfranchising minorities and low income people by use of rules about voting. “There is so much repeating history,” he said.

The NAACP suit against the law, passed by the Wisconsin legislature in 2011 and requiring people to present an acceptable form of photo identification at the polls, led to a Dane County judge putting a halt to enforcement of the law through a temporary injunction a week ago. More legal action in that suit and other challenges to the law is expected in advance of the statewide election on April 3.

Hall, a practicing lawyer whose NAACP position is unpaid, said there were fewer than 20 prosecutions for voter fraud in Wisconsin in recent years. “Why, all of a sudden, this move to require a photo ID?” Hall said. “Certain types of people don’t have that.” Many of them are African American, he said. “In fact, it is a disenfranchisement law.”

The law was supported generally by Republicans and opposed by Democrats. Supporters said it was a sensible way to reduce chances of voter fraud, while opponents said its practical effect would be to put up barriers to voting for many low income people who don’t have drivers licenses.

Hall told Gousha that the civil rights organization, founded in 1909, remains very relevant. “across the country and particularly here in Milwaukee.” He said the city has some of the largest disparities in the country between African Americans and whites when it comes to income, employment, incarceration, and educational achievement.

Milwaukee and its leaders have not responded with the intensity that is needed to deal with the problems facing many black people in Milwaukee, Hall said. He said, “No, there is not the sense of urgency we would like.” He said the NAACP wants to work together with people from throughout the Milwaukee area in solving problems. “It is in our enlightened self-interest to address these disparities,” he said.

The Eckstein Hall session may be viewed by clicking here.

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The Civil Jurisdiction of Indian Tribes

This is the fourth in a series of posts addressing commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post dealt with casinos, taxation, and hunting and fishing rights; the second focused on the relationship between the unique legal treatment of Indian tribes or their members and the U.S. Constitution’s guarantee of equal protection; and the third explored the criminal jurisdiction of tribes. This post will examine the civil jurisdiction of tribes, both over members and especially over non-members, in each its three major forms: regulation, taxation, and adjudication.

As noted in the last post, tribal jurisdiction (not unlike federal and state jurisdiction) is uniquely limited in a manner that reflects the place and circumstances of tribes on the American legal landscape. In particular, each tribe is said to retain its original or inherent jurisdiction—the sovereign authority possessed prior to European contact and the subsequent formation of the United States—except insofar as such jurisdiction has been (1) relinquished or ceded by tribe itself through a treaty or other agreement, (2) expressly abrogated or taken away by Congress, or (3) deemed by the judiciary, especially the U.S. Supreme Court, to have been implicitly lost by virtue of the tribe’s historical circumstances and contemporary status.

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