1/6 I didn’t listen to oral argument in the higher education affirmative action cases because I think the outcome is predetermined. And in spite of the length of the argument, the fact is the doctrine on this issue is ridiculously simple and is contained in barely 2 dozens cases 2/6 Beginning with Berea College v Kentucky in 1908 and ending with Fisher II in 2016, SCOTUS has faced a simple question: when it comes to higher education what does the US owe Black Americans for the harms of slavery and apartheid?

1/x Here's how you attack criminal justice reform using a flat out lie in a way that even ordinary good-faith folks may fall for unless they pay close attention. Lend me your ears for a moment. cc @davidminpdx @ScottHech @mjs_DC @jbouie 2/x Saturday morning, July 16, a man shot and killed two individuals during what appeared to be a home robbery in Alexandria, Virginia, a well-off city outside of DC. Here's a link to the way the story is first reported. alxnow.com/page/2/

1/7 Folks correctly point out that the Court’s insistence on setting the boundaries of individual rights based on whether they are grounded in historical traditions places the justice in the position of doing amateur history but there’s a bigger problem 2/7 The history the court “finds” always depends on the question it asks. Consider the competing questions the majority and dissent asks in Lawrence v Texas where the issue was the criminalization of same-sex intimacy.

1/9 The first race-based “parental rights” panic occurred between 1872 & 1875. It came about as a result of the debate on how to educate white & black kids in public schools. I know you’re probably shocked. It had to do with a bill titled The Civil Rights Act of 1875. 2/9 The bill had been first proposed by Charles Sumner and on its face wasn’t primarily about public education but rather about preventing racial discrimination in places of public accommodation - trains, hotels, restaurants etc.

1/x My point here is neither to thrash Mississippi, nor to let other states off the hook. In a weird way, Mississippi holds all the contradictions of US history. Prior to the war it had the largest percentage of slaves and in fact slaves outnumbered free people in Mississippi.

https://twitter.com/abfrancois/status/1487436069528289280

2/x Jefferson Davis was a product of Mississippi. But then so was Henry Foote, a former governor who defended slavery prior to the war but after the war opposed white supremacy and defended the rights of interracial couples to marry.

I’m completely comfortable making the case that, from Reconstruction to the modern era, Congress has been the hero and the Court the villain when it comes to freedom. Doesn’t matter how much the court points to Brown.

https://twitter.com/profepps/status/1429884461672505351

At the end of the civil war the court systematically butchered the reconstruction amendments and, not only has it never stopped that crime of intellectual butchery, but it has deliberately stopped Congress from exercising its enforcement powers under the 13th, 14th, and 15th.

1/15 You'll hear a lot of talk today about how what happened yesterday is extraordinary and antithetical to our history. It's important to reject that idea, not out of cynicism or pessimism but because that pretense of innocence is dangerous. Let's talk about U.S. Cruikshank. 2/15 Cruikshank is a case virtually every single con law casebook discusses though most con law professors don't necessarily spend a great deal of time talking about but it's instructive about how we frame yesterday's events.

1/x I want to explain as plainly as I can why Americans should be panicking about the fact that border patrol and ICE forces seem to be "policing" the streets of Portland. It's a personal story about why experience with thee officers. 2/x Before becoming an American citizen, I was a permanent resident. When I would travel overseas, I'd often come back through Miami airport because I'd visit my birth country. Inevitably, once I reached the customs officer, I'd get pulled out and taken to a back room.

1/x I suspect most people don’t care whether Princeton renames the Wilson school, especially if that gesture is meant to be it. But there is one saving grace about this and it is an opportunity to have a move adult view of our history, including Woodrow Wilson. 2/x So, here's a true story about 3 men: Robert Smalls, a former slave & one of the first Blacks to serve in Congress, Tomas Dixon, Jr., the author whose book & screenplay was used for DW Griffith’s Birth of A Nation, and Woodrow Wilson, the 28th President of the United States.

1/x On this Juneteeth day, I want to step back a moment and talk briefly about, not the day itself, but how close we came to that day never coming to pass when it did. #HappyJuneteenth #JUNETEENTH2020 2/x From 1850 to 1861, there were about 150 proposals for a 13th Amendment that would have made it unconstitutional to abolish slavery. In other words, while the post-war 13th Amendment abolished slavery, the pre-war versions would have done the opposite.

1/x When Mayor Bowser took office she set up yet another commission to propose statehood for DC. I was one of the pointy headed academic nerds appointed to the commission to annoyingly begin every sentence with “well actually” every time a proposal came up. 2/x The idea for DC statehood was to go with the so called Tennessee model, in which DC would write a constitution, have its people vote on it, send it to Congress to adopt it and voila. As part of the project DC came up with a map. It looks like this:

1/x On July 16, 2009, Harvard professor Skip Gates was arrested as he tried to enter his home in Cambridge. It caused a a bit of a controversy: Black Harvard Professor arrested as he tried to enter his home. 2/x problem wasn’t just that police suspected Gates of trying to break into his own house but that the officer said he felt threatened. This is funny for anyone who’s seen Gates: wire rim glasses, barely 5 feet tall, maybe 130 lbs when wet, a limp from a childhood illness.

1/3 If you follow folks like @KevinMKruse @jbouie @AdamSerwer, you’ll see they’ve been doing work all day long pushing against the idiotic claim that the 1619 project on slavery by @nytimes is an attempt to delegitimize the country. From my own scholarship I can tell you this: 2/3 The dead still rotted in the fields when Congress took up the first Freedmen bureau bills in late 1864 & 1865. During those debates - while black people were placing ads in newspapers looking for family members sold off during slavery - people called the bills divisive.

1/x The debate about busing is really a debate about Brown v. Board of Ed but it's hard to talk about that honestly because Brown is a decision everyone loves but only in the abstract. Brown is like MLK - the US loves the idea of it; the reality, not so much 2/x At about 5 pages long, Brown is ridiculously short for such a momentous decision but the opinion is more complicated than the fulsome praise it usually garners.

1/x I’ve been reading through editions of The Green Book for a project. The Green Book was a small booklet published beginning in 1936 to advise black people where they could travel safely without having to deal with Jim Crow. Here’s a picture of the cover for the 1940 edition 2/x One edition of the book described it this way: “most people who go on holiday...are seeking someplace that offers them rest, relaxation, and a refuge...The negro traveler is no different. He too is looking for vacation without aggravation.”

1/x In the next few weeks you're going to hear lots of nonsense that there's a phrase in the 14th amdt that proves birthright citizenship was never meant to apply to children of non citizens. The phrase is "subject to the jurisdiction thereof" highlighted in the screenshot below 2/x Indeed the president tweeted about the phrase this morning. It's important to understand how and why the argument is wrong. Basically what folks are arguing is that if you're not a citizen you're not subject to US jurisdiction. Here's why that's wrong.

1/x As far as SCOTUS goes, I think the lesson black people learned since slavery is to hold in the mind two things that seem to be in contradiction but are not. The first is this: the court is constructed and for the most part operates as a protector of power and the status quo. 2/x You don’t have to be a nihilistic legal realist to realize that, with some exceptions, the court has at one point or another explicitly endorsed or implicitly acquiesce to virtually every single one of the worst human rights violations and abuses in the country.

1/x Here's the irony about Kavanaugh. In the vast majority of cases, particularly those involving constitutional questions, the standard SCOTUS uses is not "of two possible answers, what is the correct one" but rather "of two possible answers, on which side should it err?" 2/x So when the court uses strict scrutiny to strike down a race-based government decision, it's not because it knows for a fact that's the correct outcome but because it believes that when it comes to race it should err on the side of forbidding these government actions.

@SeeDaneRunAgain 1/2His story is even more interesting. His first owner was his own father; his second, his half brother. He was part of the state convention from South Carolina that voted to ratify the 14th amdt. The house he bought after the war was is late slavery-owning father. @SeeDaneRunAgain 2/2 He became a federal customs inspector after retiring from congress but lost his job before he died when Woodrow Wilson fired virtually every black civil servant in the federal government because, racist that he was, he didn’t believe Blacks should be supervising whites

1/x This will be a bit of a con Law thread but it goes to the heart of a big gap in Roberts majority. Majority opinion has 4 steps. Step 1: travel ban fits within POTUS statutory authority. Step 2: when POTUS exercises statutory authority in an area 2/x in which constitution gives him broad powers (immigration) courts will defer to him. Step 3: deferring to POTUS means reviewing the stated rationale for his action (national security) under rational basis review.

The 14th amdt turns 150 years old this year on July 9. It is the closest we’ve come to writing into the constitution what we claimed in the Declaration of Independence. If you’re forced to pick one, choose the 14th - above the 1st, the 2nd, or the FIF. Sorry Dave Chappelle. 2/x I’m using this as a thread to post one tweet a day about the fourteenth amendment until its 150th anniversary on July 9th. John Bingham, republican of Ohio, is credited as the principal author of Section 1 of the amendment, which contains its substantive rights provisions.