Category Archives: Political Science

Do female candidates still face a “double-bind”? The answer is yes

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—Margaret S. Williams

The recent New York Times article discussing the branding of mayoral candidate Christine Quinn highlights the double-bind female candidates often face in American elections. Female candidates need to seem tough, but not too tough (see “Ms. Quinn is known to unleash anger easily” but also cared for her dying mother). Female candidates need to appear to represent women, but not too much (see the housing candidate who was slow to support paid sick leave). And, above all, the female candidate needs to be well-dressed (see references to her shoes, dress, and hairstyle).

The image female candidates promote is so delicate that revealing an eating disorder, or time in a rehab facility, could put the candidate’s front-runner status in jeopardy– more so than ties to the current establishment or a very public vote switch. Contrast this to Quinn’s chief rival for the Democratic nomination, Anthony Weiner…yes, that Anthony Weiner, of Twitter fame.

The differential treatment of women and men in politics could not clearly be more spelled out. She needs to make herself more relatable, so people will like her more.  She may have gone too far by divulging she had an eating disorder and a problem with alcohol before she was a public official. He does not appear to care what people think of him (I think that is a safe assumption, given his past tweeting behavior), nor do his past scandals while in office appear to affect his political future. And we don’t even know if his suit was Prada or Dolce & Gabbana.

It would be nice to pin all of this differential treatment on the media, but social science studies demonstrate voters judge female candidates more harshly than male candidates for the same behavior. What does all this mean for women with political ambitions? How can they overcome biases against women, both in the media and in the public’s perception of them?

Outside the United States, female candidates do not receive the same treatment—perhaps the results of elections that are more party-centered and less candidate centered. (Margaret Thatcher may be the best example of some backlash against strong female leaders.)  Different styles of election undoubtedly play a role, as they do in the electoral prospects of female candidates as well.  In our book, Contagious Representation, Frank Thames and I show how proportional representation (as opposed to single-member districts seen in the U.S.) fosters women’s participation.  But it is also possible that gender quotas, also found outside the United States, play a role here as well. Would we really focus so much on a single woman acting to represent women, or on what she was wearing, or how relatable she is if there were more than one woman in the race?

Margaret S. Williams is the co-author (with Frank C. Thames) of Contagious Representation: Women’s Political Representation in Democracies around the World (NYU Press, 2013).

A Death at Crooked Creek: Free chapter and giveaway

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Attention, lovers of mystery, history, and true crime dramas! 

There’s still time to enter our Goodreads book giveaway for A Death at Crooked Creek: The Case of the Cowboy, the Cigarmaker, and the Love Letter—and we’re giving away 3 *free* copies!  Enter now for a chance to win; the giveaway ends on May 29, 2013.

Today, we have an excerpt from the first chapter of A Death at Crooked Creek: “A Winter Journey Leads to an Inquest: 1879.” 

 

Chapter 1: A Winter Journey Leads to an Inquest: 1879 by NYU Press

Why restrict jury duty to citizens?

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—Andrew Guthrie Ferguson

[This article originally appeared in The Atlantic online. Read it here.]

A few weeks ago, the California Assembly passed legislation that for the first time would make non-citizens eligible for jury service. If passed by the State Senate, California would be the only state to decouple citizenship and jury duty.

A chorus of criticism has been raised over the proposed bill without thinking about the fundamental question it presents. Why do we limit jury service to citizens?

The answer does not lie in history. At the time of the framing of the United States Constitution, jury service was limited to property-owning white men–as, for that matter, were voting rights in most states. Recent immigrants who owned property could sit on juries, but other citizens (women and others without property) could not. Thus, as originally understood, citizenship did not define who could sit on a jury.

Nor is the answer that citizens possess some special civic knowledge. There are no educational requirements for jury service. No special “citizen training” classes. Qualification for federal jury service simply requires that the potential juror “be adequately proficient in English to satisfactorily complete the juror qualification form.” In an era where studies show that most Americans fail basic civic literacy tests (including the official government citizenship test), we can honestly wonder about this collective lack of civic knowledge. Thus, assuming that many non-citizens are equally knowledgeable (or ignorant) about American civics and law, knowledge cannot be the reason for preferring citizens.

Nor, is it about community representation. Juries, of course, have always acted as a community conscience. Community morals and judgments provide both the legitimacy for a jury verdict and a check on government power. The right to a criminal jury trial is a right to a local jury. Yet, including non-citizens on juries would not necessarily change that community dynamic. In fact, including non-citizen members of our community might provide a closer approximation of the actual community sentiment. After all, a lawful permanent resident of California (who has lived in the state for twenty years) might be much more representative of the community than a recent citizen moving from Alabama or New Hampshire.

So why has jury service been limited to citizens? Here are three good reasons.

Citizenship symbolizes and preserves self-government. In a democracy, citizens are the sovereigns and sovereigns have to govern themselves through institutions like the jury. This is a structural power – a reservation of political control to citizens. One cannot outsource the responsibility of self-government, including jury duty. Those who have been entrusted with the responsibility to govern must do the hard work of self-government.

Second, citizenship has come to define our political identity. For much of early American history, we denied full political rights to women and people of color. As a result, the battles for political equality have been framed in terms of citizenship. The Women’s Suffrage Movement explicitly linked jury service and voting in its push for political equality, knowing that just gaining the right to vote would not be enough for women to be considered full constitutional citizens. The Civil Rights Movement in the South began with a series of jury discrimination cases recognizing that jury participation symbolized a measure of constitutional equality. Those victories established that to be a full participant in the constitutional system, one had to identify as a citizen juror.

Finally, citizenship involves a legal and social relationship with the government – a granting of constitutional rights and an acceptance of civic responsibilities. American citizenship is a legal commitment to certain participatory values, including participation in juries. The badge of citizenship marks individuals as belonging to a national community that guarantees certain liberties and opportunity in exchange for democratic participation. As the Supreme Court stated in Powers v. Ohio, jury duty “affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law. Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.”

A shift to non-citizen jurors would alter this balance of sovereignty, identity, and the relationship between citizen and government. Of course, many non-citizens would make excellent jurors, just as many actual citizens make poor jurors, but the underlying legal relationships would be significantly affected. This change to non-citizens juries may come, as the history of the jury has always evolved with social norms, but such a change would restructure the current balance of rights and responsibilities in a way that Californians and others should weigh very carefully.

Most importantly, the debate over non-citizen jurors has resulted in new awareness that jury service matters. However the California legislature ultimately decides the issue, the controversy has highlighted a deep-felt sense that jury service goes to the heart of what it means to be an American citizen: It is not patriotism alone, but commitment to the participatory values of democracy. Next time you are asked to serve, wear your juror badge proudly.

Andrew Guthrie Ferguson is an assistant professor of law at the UDC David A. Clarke School of Law, and author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (NYU Press, 2013).

Misunderstanding Miranda: A Miranda warning would not endanger the Boston prosecution

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—David A. Harris

[This article originally appeared in the Pittsburgh Post Gazette. Read it here.]

Just hours after the second Boston bomber was taken alive, the government announced that it would not give the man Miranda warnings before questioning him. Instead, the Department of Justice said, the attacker would be questioned without warnings under the public safety exception.

The Obama administration’s interpretation of the public safety exception is suspect; its announcement that no Miranda rights would be given was transparently political, aimed at avoiding criticism from conservative quarters. Worst of all, the administration seemed to be telling the public that Miranda warnings are just petty rules—another instance of hyper-technical laws that get in the way of real justice. This is dead wrong, and it shows grave disrespect for the rule of law and the Constitution—the very things that make our country great.

Let’s start with a clear understanding of the Miranda warnings. Failing to give Miranda warnings does not interfere with the power of the police to make an arrest. Not giving the warnings does not affect the ability of the prosecution to try a suspect. In fact, not reading a suspect his Miranda warnings does not even violate the person’s rights.

The Supreme Court ruling in the Miranda case is actually quite specific: Warnings are required only if the police question a suspect while he is in custody and the district attorney wants to use the answers to prove guilt. That’s all.

If the Boston bombing suspect gets Miranda warnings and decides he wants to remain silent, won’t that destroy the case?

The simple answer is no—he will be prosecuted anyway and will very likely be found guilty, statements or not. Think of 1) the countless photos and videos, many of which show him with his brother and some of which reportedly show him leaving his backpack at the site of the second explosion moments before it occurred; 2) his statement of guilt made to a civilian during a carjacking, 3) the many officers who could testify they saw him at the shootout from which he escaped; and 4) any evidence police have seized from his home. In short, the evidence will be overwhelming; prosecutors won’t need a confession to convict him.

The idea that giving suspects Miranda warnings stops investigations cold and allows guilty criminals to go free is a myth, and it vastly underestimates the abilities of modern police officers to work successfully under the Miranda rules.

When police officers administer Miranda warnings, 85 percent of suspects talk to them anyway. For suspects with no criminal record, like the Boston bombing suspect, the number is 90 percent. Given what the warnings tell suspects—”anything you say will be used against you”—many people are shocked by this outcome. But it is human nature to talk, to explain, to avoid blame, and good police interrogators know how to take advantage of this. Miranda does not prevent them from getting the evidence they need.

In fact, the evidence in the Boston case is so great and the bomber’s guilt so certain that the suspect may wish to make statements—whether he gets Miranda warnings or not—for the purpose of avoiding the death penalty. The Miranda warnings won’t affect this.

What would happen if the suspect is questioned in custody without Miranda warnings and he makes statements of guilt?

The prosecution could not use those statements to prove his guilt, but it could still proceed with all the other evidence. And prosecutors could use answers given without Miranda warnings for purposes other than proving guilt. For example, they could still be used for intelligence purposes—to find other bombs or other people involved in the Boston plot or others. The statements also could still be used to prove the guilt of others involved under a conspiracy charge.

The government’s assertion of the public-safety exception to the Miranda rule bends that exception almost to the breaking point. The Supreme Court has said that Miranda doesn’t apply to police questioning that takes place in order to alleviate immediate, ongoing danger. But the authorities have already made clear that the Boston bad guys have been caught or killed and the danger is over. Perhaps the government might question the suspect about the existence of other explosives or plans, or whether he and his brother had other co-conspirators. But beyond those issues, the public-safety exception does not apply.

When our political leaders say that constitutional rights won’t be applied in pursuit of some greater good, they make our founding document sound like a collection of legal loopholes. They put us on the path that Ben Franklin warned us against when he wrote, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

At times like this, we need to stand strong with Boston—and with our own values. Anything less dishonors who we are.

David A. Harris is Distinguished Faculty Scholar and Professor of Law at the University of Pittsburgh School of Law. He is the author of Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012).

Marriage equality and the law, 1967 and 2013

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—Howard Ball

In 1967, when a good cigar only cost five cents, a very different U.S. Supreme Court, led by a very different Chief Justice (Earl Warren), faced a choice between a states rights and an equal protection of the laws argument. The same choices face the Justices this term, but I am fearful that the outcome will be very different in 2013.

In 1967, the case Loving v. Virginia came to the Court because Virginia (and 15 other states) enforced its anti-miscegenation statute prohibiting marriage between Caucasians and blacks. At this time, the jurists formed an exceedingly diverse group, much more so than the sitting Court. For one thing, the majority of them had political careers prior to joining. Thus, this intimate contact with politics gave them a much greater sense of the real world than the cloistered world of arcane legalism would have.

Also of note was that the Court was mostly composed of either moderate or liberal jurists; there were no arch conservative “originalists” such as Antonin Scalia, Clarence Thomas, and Samuel Alito sitting as we see in the current Court. And the Loving decision was but one example of the Court’s rock solid commitment to civil rights and civil liberties in the mid-20th century (1953-1969).

Virginia’s lawyers argued that in a federal system, the state has the power in the 10th Amendment to establish rights and limits regarding marriage. The lower federal courts accepted this argument, yet without a dissent, Chief Justice Warren categorically rejected it. He wrote that “the 14th Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” The Court’s commitment to racial marriage equality in Loving came even though 72% of the American public opposed inter-racial marriage that year. (In 2011, 97% of persons under 30 years approved of inter-racial marriage. Clearly, values evolved towards equality.)

In 2013, two cases are in the Supreme Court. One, U.S. v. Windsor, the plaintiff, an octogenarian lesbian whose wife of more than four decades died and who had to pay over $300,000 to the IRS because the 1996 Defense of Marriage Act (DOMA) denied federal benefits to same-sex married couples, argued that the law was an unconstitutional violation of the right of gay and lesbian couples to marry. In the second case, Hollingsworth v. Perry, lawyers challenged the constitutionality of Proposition 8, passed in 2008 by the voters in California. It invalidated an earlier California Supreme Court decision that allowed same sex marriage. The arguments by the lawyers for the gay and lesbian petitioners are based on the concept of equality in the Constitution and are reminiscent of the Loving decision.

In contrast to the expectations of petitioners in 1967, however, the outcome in 2013 is uncertain. First of all, only one sitting Justice, Elena Kagan, has any prior experience outside of the judiciary (she was the U.S. Solicitor General in the first Obama Administration). Two had prior work on the Senate judiciary committee (Stephen Breyer) and as counsel for the ACLU (Ruth B. Ginsburg). All the other members came to the Court from lower federal appellate courts, having no real political world experiences to draw upon. Furthermore, unlike the Warren Court, there is a hard and fast ideological split on the Court: five very conservative jurists and four moderates. And there has been, for more than a decade, an “appreciation” by the conservative majority of the primacy of states’ rights vis-á-vis federal power, a general wariness about the Court moving too hastily when deciding controversial social issues, and an originalist commitment to the historic values and traditions of the American society.

There are only a few options available to the Court in deciding the same-sex cases:

  1. Dismiss the cases as improvidently granted, which would leave DOMA in place and have the 9CA overturn of Proposition 8 restored,
  2. (a) Overturn DOMA, ending a federal imposition and enabling, in the 9 states and the D.C. that allow same sex marriage, all married couples to receive federal benefits, and (b) validate California’s Proposition 8, enhancing, in both cases, the principle of states’ rights in the face of federal laws.
  3. Overturn Proposition 8 and DOMA on individual rights, privacy and “equal protection” grounds, using Loving as precedent.

I am not holding my breath that the last option will be the majority’s choice. It will be one of the first two possibilities; either one will sadden but not surprise me and most Court observers. Paradoxically, unlike public opposition to racial intermarriage in 1967 rejected by a unanimous Court, in 2013, although 58% of Americans support same-sex marriage, it may be rejected by a five person majority. Oh, for the return of a good five cent cigar and the Warren Court!

Howard Ball is Emeritus Professor of Political Science and University Scholar at the University of Vermont and Adjunct Professor of Law at Vermont Law School. He is the author of At Liberty to Die: The Battle for Death with Dignity in America (NYU Press, 2012) and The Supreme Court in the Intimate Lives of Americans (NYU Press, 2002).

Two covers for Two Presidents?

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NYU Press takes a different path to publishing a book on the political gridlock in Washington DC

When NYU Press decided to publish a provocative new book, Two Presidents Are Better Than One: The Case for a Bipartisan Executive Branch, by David Orentlicher, arguing in favor of two Presidents, rather than one, it had a number of major challenges, according to Steve Maikowski, Director of NYU Press. “First, we had to ensure that the final manuscript made a very convincing and well-grounded case for such a controversial idea, and the author, a Professor of Law at Indiana University, did indeed ground his argument forcefully in both law and American history. Otherwise, we feared the book would be dismissed out of hand as implausible by pundits and the review media.”

The Press saw the book, which advances this idea of a bipartisan executive branch, as a way to break the political gridlock between the Republicans and Democrats—and especially timely and worthy of serious review attention, given the endless budget impasses and the ongoing fiscal cliff negotiations in Washington.

A far-fetched argument? Not according to the author, or to the early reviewers of the book, including Sanford Levinson, an acknowledged expert on constitutional law and professor of government at the University of Texas School of Law. Levinson wrote, “Can Orentlicher be serious in calling for a plural executive? The answer is yes, and he presents thoughtful and challenging arguments responding to likely criticisms. Any readers who are other than completely complacent about the current state of American politics will have to admire Orentlicher’s distinctive audacity and to respond themselves to his well-argued points.”

The Press was further encouraged by the very favorable pre-publication buzz the book (or rather, the idea behind the book) received from the Washington Post and Boston Globe. What seemed to be an implausible argument of a plural executive branch was called by the Globe, “a fresh lens on a problem we all complain about—and may offer useful guidance for how we should go about trying to reform our government.” Orentlichter went on to appear on ‘Fox and Friends,’ where he was met with just a twinge of cynicism, but also a whole lot of encouragement.

The book also received several excellent pre-publication reviews, including the following praise from Publishers Weekly: “As unlikely as the thought may sound, Orentlicher makes a surprisingly persuasive case for this radical change. Orentlicher delivers a compelling explanation of how such a system would better align with the framers’ original conception of the executive branch… the author has an incisive eye for the problems of contemporary government.”

With the very positive buzz circulating the book, the next challenge was how best to package and market the book to draw attention to the author’s controversial proposal. The NYU Press design and marketing team met the challenge head on, and immediately found a way to encapsulate the author’s argument in an innovative and exciting design.

In a launch meeting for the book, the discussion turned to how best to evoke visually such a two-headed being. Adam Bohannon, a designer at the Press, and Mary Beth Jarrad, marketing and sales director, decided to publish the book with two different covers—one to appeal to Democrats, and another to appeal to fans of the GOP. The Press then commissioned an illustration that would show the pairing of the Democratic donkey and Republican elephant. The result: two covers that look very much the same, but each features one of the iconic partisan images, the donkey or the elephant.

The book was released to the trade in February, with an equal number of copies of each edition in each carton shipped to wholesalers and retailers. The Press decided it would be too burdensome to track sale of each book, which would have required separate ISBNs and increased management of two titles rather than one. “We’ll probably never know which of the two editions sells the best, and as long as we sell them all, we probably will not care to know,” said Jarrad. “The next big question is, when we publish the paperback in 2014, which of the two covers should we use then.”

In memoriam: Hugo Chávez

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—Michael D. Yates

The death of Hugo Chávez saddens those struggling for a better world. He was a great champion of the impoverished workers and peasants of both Venezuela and the world, and a steadfast and bold critic of the rapacious and murderous imperialism of the United States.

Monthly Review Press is proud of the books we have published on Venezuela, books which describe, analyze, and show solidarity with the Venezuelan road to democratic socialism. A key element in building a revolutionary, new society is to ensure the health of the people. This has been one of Chávez’s singular achievements; millions of poor Venezuelans have received (free) medical care for the first time. In cooperation with Cuba, Venezuela has begun to construct a system of patient-centered, decentralized, and preventive health care, a process examined in Steve Brouwer’s Revolutionary Doctors: How Venezuela and Cuba Are Changing the World’s Conception of Health Care. Remarkably, peasants and workers are themselves trained to be doctors, in a work and study program pioneered by Cuba.

Under Chávez, Venezuela has striven to secure its political and economic independence from the United States, which has had a sordid history of intervention in the country and in all of Latin America. Not only did he help to engineer a strong economy not dependent on the United States, he never hesitated to challenge with words and deeds its imperialist practices. Given the implacable hostility of the United States to Venezuela, examined with great care by Eva Golinger in Bush versus Chávez: Washington’s War on Venezuela, it is remarkable that Chávez remained in power, winning democratic elections and surviving a Bush-engineered coup. This is a testament to the depth of his revolution and the growing power of Latin American governments to steer a course independent of the United States, a power inspired by Venezuela.

Following the failed coup in April 2002, when massive popular protest propelled him back to the presidency, Chávez sat down with Marta Harnecker and provided insights into his own political trajectory and the nature of what he called “socialism for the twenty-first century.” His words were later published in Understanding the Venezuelan Revolution (Monthly Review Press, 2005).

While Monthly Review Press must sell books to remain in operation, our main purpose has always been to promote radical thought and action in the world. We have published books in which authors have expressed the deepest admiration for Hugo Chávez, but praise for a radical leader is never our goal; it is the empowerment of the masses of workers and peasants we want to help achieve. And yet, it must be said that our love for Chávez has been amply repaid.

In April 2009, at the Summit of the Americas meeting in Trinidad, Chávez arose from his seat, walked over to Barack Obama and handed him a copy of Eduardo Galeano’s classic work of the centuries-long exploitation of Latin America by the great imperialist nations (including, of course, the United States): Open Veins of Latin America. He inscribed the book, “For Obama, with affection.” As word of this spread around the world, the English edition of the book reached #2 on Amazon’s sales charts. This was a great boon to Monthly Review Press and to our distributor, NYU Press. We were inundated with emails and phone calls, and I remember having to quickly re-read the book (which I had used in my classes when I was a teacher), so that I could write and deliver, within one day, a review to an Australian magazine.

Let us hope that as the Venezuelan revolution continues and as the imperial power of the United States someday diminishes in response to popular revolt here, it won’t be necessary for the president of one country to give such a book to the leader of another. Because Hugo Chávez’s dream and that of every revolutionary person will have been realized… That there be no rich and poor, that there be no exploiter and exploited, that there be only one healthy and happy humanity.

Michael D. Yates is a writer, editor, and labor educator. He is Associate Editor of Monthly Review and Editorial Director of Monthly Review Press.

The Future of Women’s History

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–Margaret S. Williams 

As we begin another Women’s History Month, I have to wonder how the dearth of women in public life will affect the celebration of this month in the future.  Whether we are talking about Presidential Cabinets or Fortune 500 companies, too few women are participating in public life.  The absence of women is a problem whether viewed as a loss of talent or a loss of opportunity to represent women’s interests.  But what can be done?  Some think that women need to assert themselves more, to “lean in” as it were, creating a greater presence in the workforce to gain more than what they currently have.  Others argue that change needs to come from the institutions themselves by recruiting women to higher ranking or more prestigious positions.  When talking about overcoming centuries of socialization into particular roles and fewer opportunities, it seems to me that both efforts need to be pursued.

Teaching women how to be more assertive alone will not help women achieve their goals overnight.  In fact, there is a substantive body of political science literature that says it could backfire, with women being perceived more harshly than their assertive male colleagues.  Moreover, the idea that women need to think bigger about their goals or paths to success misses the point that women are as ambitious as men—they want higher ranking office and bigger salaries.  Who doesn’t? The problem is, women see more barriers to achieving it, or they think more about the effect on their family life than men do.  Women face institutional barriers that thwart their ambitions, so institutional change needs to be a part of the conversation.

Institutional actors need to reach out to these ambitious women to help them achieve their goals.  Quotas laws (used in some countries to ensure greater participation by women), recruitment, and mentoring also need to be a part of the process for increasing women’s participation.  Even a broader discussion of how to balance work and family by those who are attempting to do so can be helpful.  But women who seek more need to make their ambitions known.  Women need to seek out mentors to help them achieve their goals, and they need to take opportunities when they are available instead of seeing all the reasons why they shouldn’t.  If there are no women willing to take the risk and aim for more power and prestige, we lose not only examples for future generations, but we may also lose any reason to celebrate this month.

Margaret S. Williams is the co-author (with Frank C. Thames) of Contagious Representation: Women’s Political Representation in Democracies around the World (NYU Press, 2013).

Supreme Court must protect minority rights

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—F. Michael Higginbotham

Recently, the Supreme Court heard oral arguments in Shelby County v. Holder, examining the constitutionality of Section 5 “pre-clearance” provisions of the Voting Rights Act. Section 5 mandates that states or portions thereof with a history of discriminatory voting laws get prior approval by the Department of Justice for any changes to their election laws. In 2009, the Supreme Court upheld Section 5, but Chief Justice Roberts indicated that the section creates “serious constitutional questions” and should be “justified by current needs.”

For 47 years, the Voting Rights Act has prohibited certain racially discriminatory election practices and given the federal government supervisory powers over jurisdictions that used such practices. This supervisory role has proven crucial to ensuring protections for racial minorities previously excluded from their constitutionally guaranteed right to vote.

In signing the bill, President Lyndon Johnson termed it “a monumental law in the history of American freedom.” He was right. Shortly after the law was enacted, 800,000 blacks registered to vote in covered jurisdictions. Few minorities were registered prior to its passage. Today, there are over 10,000 elected black officials; in 1965, there were approximately 300.

Because of this progress, some question whether Section 5 is still needed. Recent voting irregularities in the covered jurisdictions, where allegations of minority voter suppression have been lodged due to faulty election machines, purges in voter rolls, burdensome voter identification requirements, and winner-take-all at-large districting mandates, suggest that it is.

It is in this last category where Section 5 has been most effective preventing changes in election practices that would undermine the voting power of racial minorities.  The Shelby County case provides insight. Prior to local elections in 2008, the City of Calera, located in Shelby County, redrew its jurisdictional boundaries. The redrawn boundary eliminated the City Council’s only majority-black district by adding several white subdivisions adjacent to Calera while refusing to incorporate a black area located nearby. The lone majority-black district was reduced from 70 to 30 percent black, resulting in the election loss of Ernest Montgomery, the only black city councilperson.  The Justice Department would not approve the redistricting plan and, after extensive negotiations, Calera adopted a more inclusive at-large election system. A system that prevented a white numerical majority from controlling 100 percent of the six positions on the city council and that resulted in Montgomery receiving the most votes of all council candidates.

While much progress has been made over the last few decades including black registration rates equivalent to whites, racially polarized voting patterns coupled with vote prevention and dilution practices suggest a continued need for vigilance.  In  2001, the white mayor and all white city council in Kilmichael, Mississippi cancelled elections shortly after blacks became a majority of registered voters. Last year in Texas, two federal courts identified multiple examples of more sophisticated, yet equally outrageous, discriminatory redistricting practices including removing economic centers from majority-minority districts and placing them in white districts without any financial reasons for doing so, and removing minorities from such districts who have voted in prior elections  and replacing them with minorities who have not recently voted in order to maintain the appearance of a majority-minority district without the likelihood of minorities casting the most ballots. In each situation, Section 5 was used to prohibit the discriminatory practice. With so many clearly identified problems, it is hard to believe that five justices of the Supreme Court would decide that anti-discrimination protections in Section 5 are no longer “justified by current needs”.

F. Michael Higginbotham is the Wilson H. Elkins Professor of Law at the University of Baltimore School of Law. He is the author of Race Law: Cases, Commentary, and Questions and Ghosts of Jim Crow: Ending Racism in Post-Racial America (NYU Press, 2013).

Waiting for democracy

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—Andrew Guthrie Ferguson

Last November, thousands of citizens waited for hours outside polling places to cast their ballots in the presidential election. When asked why they were willing to wait, most answered in the emphatic language of democratic pride. It is our duty. It is our right. It is our calling as citizens. We are proud to.

Every day in courthouses across America, there are other lines of waiting citizens—lines for jury duty. There are lines to get into the courthouse, lines to check in, lines before you head to the courtroom for jury selection. Yet, if you ask those jurors why they were willing to wait, the language is less emphatic, less proud.

Why do we think of voting as something more connected to our democratic identity?  Why of the twin political rights of voting and jury service—the two markers of full political citizenship—do we value the right to vote more? The answer is that we misunderstand the value and values of jury service to democracy.

Why Jury Duty Matters sets out to reframe the debate by showing the importance of jury service to our democracy. To understand the value of jury service you need to understand its history, its constitutional connection, and its personal relevance to citizenship.

First, the history of the jury is the history of America. The right to a jury trial came over on the first boats to America. Jury protections can be found in the charters that founded the Jamestown and Plymouth colonies. Juries were instituted in the constitutions of each of the Thirteen Colonies and each of the new States. In fact, the denial of the right to a jury trial made it into the Declaration of Independence as one of the grievances of the colonists, helping to spark the Revolutionary War. Not surprisingly then, the right to a criminal jury trial is the only right that makes an appearance in both the original text of the United States Constitution and the Bill of Rights—under Article III and the Sixth Amendment, respectively. Further, you also have the Seventh Amendment’s right to a civil jury and the Fifth Amendment’s right to a Grand Jury.

Then, as America democratized and diversified, the jury was central to the battle for equality. The civil rights movement in the South began by challenging exclusions from jury service. The right to serve as a juror was a badge of citizenship—symbolizing equality. The women’s suffrage movement (both before and well after the Nineteenth Amendment) also involved a particular emphasis on the right to serve as jurors. Equality meant voting and having the right to jury service. Today, paralleling the progress of the various civil rights movements, jurors represent a fair cross section of society, a living symbol of equality in law.

This constitutional history is real, yet most people do not appreciate it when it comes to jury service. Jury duty is the one time where constitutional history and constitutional theory become immediately relevant, because you—the citizen—are a constitutional actor. We—the people—must act, and Why Jury Duty Matters explores why you should accept the call as a constitutional actor.

Second, the jury is a teaching moment where constitutional values come alive in practice. Participation, deliberation, fairness, equality, accountability, liberty, dissent, and the common good—these are constitutional values, and they are embedded in jury service. While voting is one form of participation, jury service is an even more fundamental contribution. It requires working through those other principles, applying due process rules to achieve fairness, deliberating with others, dissenting with tolerance, and practicing equality in a microcosm of one-person, one-vote democracy in the jury room.

These values are also values that we see in other areas of our democratic practice. But in jury service the lessons are longer, the questions deeper, and the practice harder. It is for that reason that Alexis de Tocqueville likened juries to free public schools, always open to teach the civic skills of democracy.

Finally, jury service is personally meaningful. It is the one day that you are required to act like a constitutional citizen. The argument in this book is that you should treat that jury summons like a constitutional invitation. You get to experience it for a day, or more, and hopefully learn a thing or two about your country and the Constitution.

Jury duty is Constitution duty. It is a way for citizens, ordinary folks, to connect to the constitutional principles that guide this nation. Most people see jury duty as a service they do for the court system or for the defendant or parties. But in truth, jury duty is also for the citizen. Jury duty provides constitutional lessons necessary for democracy.

So the next time you are waiting on jury duty, remember you are waiting for democracy. It is just as important as your vote.

Andrew Guthrie Ferguson is Professor of Law at the David A. Clarke School of Law at the University of the District of Columbia. He is co-author of Youth Justice in America and author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action.

WWI centennial update

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—Lisa Budreau

It appears that the nation’s plans to commemorate the Centennial of the First World War in 2014 are progressing. The WWI Centennial Commission Act (House Resolution 6364) passed by Congress and was, until recently, awaiting the President’s signature. However, the bill died on the Presidents desk. And, as the rules go, if a bill, for other than appropriations, signed by both parts of the legislature goes to the executive branch and is not signed within 10 days, it becomes law. That’s Poli Sci 101 in any university. And thus, the Frank Buckles bill, heretofore known as the WWI Centennial Commission Act, is now law but quite toothless. There’s no funding. The chairman of the commission can task government agencies as might be pertinent but on a reimbursable basis. (Read more about this here.)

In general, the bill provides for the formation of a board consisting of twelve members within 60 days after it becomes law. Plans have already begun to nominate members of this board, though unofficially. So, who will be the leader of this new Commission? Where will they be based, on the East Coast or Kansas City? What role will the American Battle Monuments Commission play in our national 4-year remembrance? They are, after all, the appointed caretakers of nearly all the American First World War commemorative constructs.

Once again, history repeats itself and commemoration remains one of the most political of all national activities, but risks becoming an exploitative process, one used to fulfill agenda far from the intended purpose of remembering the war dead.

Let’s hope that this group remembers the true meaning of commemorating this first global event. It, and our dead, deserve our respect.

Lisa Budreau is a consultant to the WWI Regional Office with the American Battle Monuments Commission, based in Arlington, VA, and Garches, France. She is author of Bodies of War: World War I and the Politics of Commemoration in America, 1919-1933 (NYU Press, 2009).

Why jury duty matters—a personal account

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—Pete Hahn

Granted, everyone hates the idea of jury duty.

I’ve been summoned for jury duty three times in the thirty-three years that I’ve been eligible, the first time twenty years ago, and most recently, this past year.  What I discovered is that my attitude is very different now than it used to be.  What do I mean by that?  Well, when I was younger, I bought into the idea that the only people who ended up serving on juries were those who were too stupid to figure out how to get out of it.  So the first time I was called, I answered every question during the voir dire process with statements intended to make me look as biased as possible.  Had I ever been accused of a crime?  Yes! (Officially?  By police? In this country?  Well, that wasn’t the question, was it?)  Did I have any relatives that were lawyers? Yes! (My sister passed the bar exam, practiced contract law for about two years, then left to start a family… but they didn’t ask whether there were any practicing attorneys in the family….)  Anything I could say to get out of serving, I said.  And it worked.  The lawyers dismissed me, and I went home, smirking about how well I had gotten over on the courts.

This year, I was called again, and things were different.  First of all, the commissioner of jurors and the welcoming judge both made speeches that acknowledged that everyone in the room just wanted to get out of it … but also explained why it was so important.  What stuck with me was not the concept of “civic duty,” but the idea of jury service as public service.  This country really does not ask much of its citizens:  you do not have to vote, you do not have to worship, you do not have to serve in the military… all that is really asked of us is that we obey the law, pay our taxes, and, when summoned, appear for jury duty.  Not much to ask for all of the freedoms we enjoy.

Secondly, the process of jury selection this time gave me more time to think about what was happening.  I’ll explain.  I was part of a group of fifty prospective jurors sent to a courtroom, from which fourteen would be chosen to serve (twelve jurors and two alternates).  The first day, eighteen people were questioned, out of whom five were selected as jurors.  The rest of us went home and came back the following day, and eighteen more of us were questioned in the morning, from whom another six were selected.  Of the remaining prospective jurors, I was literally the last one called into the jury box – thus, the last person to answer any of the judge’s and lawyers’ questions – and I had heard all of the answers that the other forty-nine people had given.  What struck me – what shocked me, actually – was the way that so many of my fellow prospective jurors exaggerated, obfuscated, and out-and-out lied to the judge to get out of being selected.  There were quite a few legitimate reasons for people to be dismissed – this was for a criminal assault case that looked like it would come down to the word of the suspect against the two officers who arrested him, so it made sense for police officers, trial attorneys, relatives of convicted criminals and assault victims to be excused.  What got to me was the large number of people who claimed that because their family’s apartment had been burglarized when they were four years old, or that Grandma’s purse had been snatched when she was seventeen, that they were not capable of being fair and impartial.

After listening to my forty-nine companions, I decided that I would simply answer the questions from the judge and attorneys, and if they wanted me on the jury, so be it.  So I told them about my sister, the non-practicing attorney, and about my two corrections officer cousins, and my minor scrapes from thirty-plus years ago – but I also told them that none of those things would get in the way of my being capable of listening and forming opinions based solely on the facts presented in this trial.  Even so, I thought that since they only needed three more people from our group of fourteen, that I, the last one called, would not be selected – which I can only describe as bittersweet.  I was wrong, though – they wanted me.  Sort of.  I was named the first alternate.  But then, on the first day of the trial, one of the twelve “real” jurors was excused due to a family emergency, so I officially became Juror Number Eight.

The wheels of justice move slowly.  Really slowly.  And this may be why jury duty gets such a bad rap.  There is a lot of sitting around, waiting to get started, being sent back to the jury room while the lawyers confer with the judge, mandatory ninety minute lunch recesses, ending for the day at 4:30 – basically, you get about four hours of actual court time in an eight-hour day.  And the testimony can be mind-numbingly repetitive and dull.  But all of this is on purpose.  You need to go slowly to establish the facts.  You need to go slowly to give everyone a chance to testify, even if it seems like they are telling the same story as the previous witness. You need to go slowly to avoid reaching hasty conclusions.  Few people today operate at such a deliberate pace, and the process can feel like a throwback to a different era, and at times you want to scream out loud, “Can we please just move this along!”

And then it happens.  The defense rests.  The judge explains the law.  And you have to decide.  Twelve people go into a room, having heard the same testimony, seen the same exhibits, listened to the same instructions from the judge – and have reached different conclusions.  And the beauty of this process begins to unfold.  You realize that everyone’s perspective is unique, everyone’s life experiences act as a filter through which they view the case, and no one knows the truth.  So you start to talk, some of you tentative, some passionate, some reasoned, some questioning, but all knowing that you need to come to a unanimous decision.  And you keep talking, and you keep listening, and you ask for clarifications of law and re-readings of testimony, trying to make sure that you are judging the case based on the law, and based on that high standard of “beyond a reasonable doubt,” and eventually the last holdout on the last count agrees with the rest of the group, and you send the note to the judge, saying “The jury has reached a verdict.”

Regardless of what that verdict is, when you, the Jury, file back into the courtroom to read the verdict to the defendant, judge, and attorneys, it is impossible not to feel the weight of the situation, impossible not to wonder whether you “got it right.”   What you realize at that moment is that this is how the system is supposed to work.  The judge doesn’t get to decide.  The D.A. doesn’t decide.  The jury decides whether the prosecution proved their case.  The defendant is presumed innocent until and unless the prosecution meets that burden of proof.  And twelve ordinary citizens got to make that decision.  And the awesome responsibility of being part of that decision, watching justice in action, being part of a system that works – I realize that serving on a jury is a privilege, not a duty.  If people only knew about this part of the process, we would have a line of citizens trying to get chosen, instead of trying to get excused.  I’m just sorry that I have to wait six more years for my next summons.

Pete Hahn lives in Westchester Country and has been summoned for jury duty three times in the last twenty years.