The Middle Shall Inherit the Earth: America’s Sin of Omission

My first job after college was as a teacher in Cotulla, Texas, in a small Mexican-American school. Few of them could speak English and I couldn’t speak much Spanish. My students were poor and they often came to class without breakfast, hungry. And they knew even in their youth the pain of prejudice. They never seemed to know why people disliked them, but they knew it was so. Because I saw it in their eyes. […] And somehow you never forget what poverty and hatred can do when you see its scars on the hopeful face of a young child. I never thought, then in 1928, that I’d be standing here in 1965. It never even occurred to me in my fondest dreams that I might have the chance to help the sons and daughters of those students, and to help people like them all over this country. But now I do have that chance. And I’ll let you in on a secret… I mean to use it.

Lyndon Johnson (1965), calling for passage of the Voting Rights Act

It wasn’t always this way. When Lyndon Johnson spoke about “all Americans,” he made it crystal clear that he was talking about the poor and people of color. Check out his 1964 election ad and compare it to one of Barack Obama’s most popular ads. Obama talks about everyone but the poor—calling for more taxes on the rich and tax cuts for the middle class. Even Clinton’s much-heralded convention speech discussed how to “empower middle class families and help poor kids.” Notice that the specter of poverty among adults was kept offstage.

Listening to the presidential debates last week, you’d be blown away to discover that one in four black Americans is living in poverty. Or that one in four Hispanic Americans is living in poverty. Or that the national poverty rate for individuals is 15 percent. Mitt Romney mentioned the poor three times, and twice only to say how the federal government should stop trying to help them—first by letting states weaken Medicaid standards, and second by letting states voucherize public education. The final time, Romney argued that “one out of six people [living] in poverty” is proof of Obama’s failing economic policy. Shortsighted as that may be, at least he mentioned the poor. Obama didn’t mention the poor once, aside from a brief nod to those “striving to get in the middle class.” How’s that for #euphemismofthenight?

 I want to hit those numbers again. One in four black Americans is living in poverty. One in four Hispanic Americans is living in poverty. These numbers should be burnt into our collective conscience until we muster the political courage to do something about it. How many presidents? 44. How many states? 50. How many black and Hispanic Americans are living in poverty? One in four.

 And yet, all we hear about is the middle class—a term so vague as to be deceptive. Those “middle class” tax cuts Obama likes to discuss actually reach individuals making up to $250,000. (A quarter of a million, by the way, puts a family in the top 3% of households—decisively not “middle” in any rational sense.) And despite now-infamous 47% comments, Romney hilariously described his upbringing at the GOP convention by saying, “I was born in the middle of the century in the middle of the country.” Middle, no doubt, is in.

This is just a month after the U.S. Census Bureau released income and poverty figures for 2011. On September 12, the agency revealed the staggering 15% poverty rate, with 46.2 million Americans in poverty. Keep in mind this is according to the OMB’s threshold for poverty, which for a family of four in 2011 was a mere $23,021. Next time a probably-rich HLS student tells you they “need” to make $160,000 defending the wealthy, powerful, and corrupt (and white), try suggesting that (perhaps) they have no idea what “need” means.

More shocking than the general poverty rates is how poverty affects children—especially children of color. Nationally, more than 1 in 5 children lives in poverty. These 16.1 million children are disproportionately black and Hispanic. According to one prominent study, 39 percent of black children and 34 percent of Hispanic children live in poverty. In many states (like Indiana, Louisiana, Michigan, Mississippi, Ohio, and Wisconsin), roughly half of all black children live below the poverty level. That’s right: Half.

Such staggering rates explain why, in a recent UNICEF study of 35 wealthy countries, the US came in 34th—between Latvia and Romania. But at least we won the Olympics, right?

You might expect these figures to cause an outcry in a nation that considers itself the best country (company?) in the world. You might expect these figures, which have remained stagnant after three consecutive years of increases, to factor in to the media’s coverage of the presidential race. After all, last year’s figures were just as unconscionable.

Yet a recent study by Fairness & Accuracy in Reporting (FAIR) confirmed what we already know: the candidates don’t discuss poverty, and the media aren’t helping. The study analyzed six months of campaign coverage by eight prominent news outlets. The results say a lot about our political and “journalistic” culture: only 17 of the 10,489 campaign stories studied (0.2 percent) addressed poverty in a substantive (their word) way, and not a single one of the eight outlets published a substantive discussion of poverty in even 1 percent of its campaign stories.

You might ask, why’s talking about poverty such a big deal? Preach to the middle class, win the election, and then make changes that benefit everyone—including the poor. But talking about poverty is such a big deal because it changes what’s politically possible in America. The more we say “we’re all in this together” but only talk about the middle class, the easier it becomes to believe that “we” doesn’t include the poor. Furthermore, you don’t always win elections (see, e.g., the eighties and the aughts). And if you fail to defend the dignity and humanity of all Americans—especially the poor—when you’re in office, it’s going to be incredibly easy for the right to undercut education, healthcare, and employment programs when they’re in office. No wonder these programs are constantly under attack—even their supposed proponents don’t like to acknowledge the people they’re designed to empower.

It makes sense why politicians and the media focus on appeasing the middle class. First, they’re the bulk of the electorate. Second, in our corporate media market, poverty doesn’t sell. And third, studies reveal that we all like to think of ourselves as middle class—in other countries, too—although more and more Americans now identify themselves as lower class.

These aren’t justifications. And they’re not excuses. They’re obstacles. Recognizing them as such means that we need to be louder and more courageous when it comes to speaking about poverty in America. We need to speak with more conviction and more honesty as we develop a shared vocabulary to discuss the racial gap in economic opportunity. Healing poverty is a moral obligation, and it’s one we’re failing horribly. It’s time to call upon our politicians, journalists, and friends to articulate the “we” in “we’re all in this together.” Otherwise, it will be the middle who inherit the earth—all because we were too meek to tell it like it is.

Romney and Obama Fight Over Who Loves Harvard Less

It is finally here. The Most Important Presidential Election Ever. The technocrat vs. the conciliator. The protean vs. the proletarian. The guy who made his dog ride on the top of the car vs. the guy who gave the Queen of England pictures and recordings of himself talking.  The electoral champion who vanquished the mighty Rick Santorum (loser of his last election six years ago by eighteen points) and Ron Paul (whose campaign may have been sabotaged by the candidate’s inability to monitor the horribly racist newsletters issued under his name) vs. the unbeatable hero who managed to defeat a supremely unpopular incumbent party during the worst financial crisis since the Great Depression when his septuagenarian opponent sat out his own campaign for a few days to look presidential.

One could imagine that a clash of such titans would focus right from the outset on the most important issues facing the country. Indeed, that is the case.  Mitt Romney and Barack Obama have commenced a smug-off over who is more closely tied to Harvard.

How to evaluate the competing claims? Well, Obama was President of the Harvard Law Review. But Mitt got a J.D./M.B.A. and was thus actually a student at Harvard for one more year than the President. They have both spoken about how much they enjoyed their time here. Both campaigns have recruited heavily from HLS.

Of course, the plain fact of the matter is that they are both “out of touch” in a sense. Ordinary people don’t run for President. It’s a waste of time to argue over whose plebian purity was more tainted by their time in Cambridge. More than anything else, the whole argument illustrates how pointless this presidential campaign will get before the country is granted a merciful reprieve in November.

And so, no one wins the who-is-more-Harvard sweepstakes.

Well, actually, hold on. Late-breaking development: there is going to be a real, actual reading group at the law school next year called “Understanding Obama.”  Romney is officially less Harvardian. He will surely win in a landslide.

John Thorlin is a 3L. His column runs Thursdays.

The views in opinion editorials, columns, and letters do not necessarily reflect the views of The Harvard Law Record. The comments posted on this Website are solely the opinions of the posters.

Indefinite Detention Under the NDAA: the Great Attack on Civil Liberties You May Not Have Heard About

On December 31, 2011, President Barack Obama signed the 2012 National Defense Authorization Act (NDAA) into law.  Many of you may not have heard of it because the holidays aren’t exactly conducive to keeping up with current events, but the NDAA represents one of the most dramatic attacks on civil liberties in this country in many years. While the NDAA contains many routine provisions related to defense spending, there are two particular provisions that should deeply trouble any American concerned with the encroachment upon civil liberties that has been the hallmark of post-9/11 America.

Section 1021 affirms that the 2001 Authorization for Use of Military Force (AUMF) authorizes detention of anybody whom the President determines was involved in the attacks of 9/11, as well as detention of anybody who substantially supports or is a member of al-Qaeda, the Taliban or associated forces.  This detention is authorized so long as the hostilities authorized by the AUMF are ongoing.  Of course, because the battle against al-Qaeda may never end, Section 1021 is essentially a de facto authorization of indefinite detention.

Section 1022 states that if an individual is detained under the authority of Section 1021, that person must be held by the military. This mandate does not apply to a citizen or lawful resident of the United States.  Put these sections together and a scary picture emerges in which a person accused of being a member of a terrorist group, or even of substantially supporting one, can be detained by the military as long as the United States is at war with al-Qaeda.

This codification of indefinite detention is chilling because it represents how quickly and drastically our nation’s discourse about civil liberties has changed in just a few years. Fewer than four years ago we elected a president who explicitly and strongly campaigned on closing Guantanamo Bay, the internationally infamous facility in which terrorist suspects were being indefinitely detained.  Now that same president is signing a bill codifying some of the practices against which he had so vigorously campaigned.  So long as George W. Bush was indefinitely detaining terrorism suspects Democrats could criticize it as representing the worst of the Bush regime and civil libertarians could decry it as a panicked overreaction to 9/11.  And while it is true that Obama had long claimed to have the authority to indefinitely detain terrorism suspects prior to the passage of the NDAA, his position could be seen as representing only the viewpoint of one president trying to arrogate power.  But now indefinite detention is not a partisan issue, nor can it be described as a panicked reaction or an overreach by a greedy branch of government.  Instead, ten years after 9/11, it has been written into our laws by a bipartisan legislature that is codifying the practices of two presidencies from two different parties.  Imprisonment without trial, that hallmark of tyranny which seems so anathema to a nation that values freedom and a governmental system based on checks on government and due process, has been written into the laws of this country with shockingly little outcry from the American people.

Another worrisome aspect of the NDAA is that it may authorize the indefinite detention even of American citizens captured within the United States.  The bill’s language is ambiguous: Section 1021 states that “[n]othing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens…” But Section 1022 says that the requirement that the detainees be held by the military does not apply to American citizens, a confusing clarification if American citizens are not eligible to be detained under 1021 in the first place.  Keep in mind that detention is authorized by a mere presidential determination that somebody has substantially supported al-Qaeda, the Taliban, or associated forces.  The prospect that a president could use this wide grant of discretion to detain American citizens should disturb all of us.  Even if we do not fear that we ourselves will ever be detained, we should fear for what happens to democratic discourse, dissent and political action when the government is given the power to imprison people without trial based on mere allegations and with minimal process.

Even though you or I may never suffer due to the indefinite detention provisions of the NDAA, we should not tolerate a system in which there is a very strong chance that people will be incarcerated for the rest of their lives without committing any crime or posing any threat to the United States.  While that may seem like an outlandish fear, our experience in Guantanamo illustrates just how fallible the Executive Branch can be in determining who needs to be confined without  trial.

The American Civil Liberties of Harvard Law encourages you all to make your voice heard and demand that Congress respect the principle that everybody deserves a day in court before being imprisoned for life.  We are circulating a petition demanding that Congress repeal Sections 1021 and 1022 of the NDAA.  To sign it, you can go to our online survey at http://hlsorgs.com/aclu/2012/02/22/sign-the-ndaa-petition-here/.

We also invite you to “The NDAA and Indefinite Detention in American Law,” a discussion with Professors Noah Feldman and Jack Goldsmith of the prime issues surrounding the NDAA.  The discussion will be co-sponsored by ACLU-HLS, the Federalist Society, and the American Constitution Society and will take place on Wednesday, February 29 from 12 p.m. to 1 p.m. at Ames Courtroom.

Ariel Schneller, Law ’12, is a member of the executive board of American Civil Liberties Union, Harvard Law School Chapter. 

Open Letter to Law Review Regarding Escalating Constitutional Transgressions by the President

We strongly urge the Harvard Law Review to invite President Barack Obama, a former President of the Law Review, to participate in a symposium organized by you to answer the contemporary constitutional crisis precipitated by the concentration of power in the Office of the President of the United States irrespective of party affiliation. The danger of an omnipotent president is institutional, not personal. Each president betters the instruction of the unconstitutional abuses and usurpations of his predecessor. The Office of the President is no longer under the law, but is the law. A true patriot, Thomas Paine sermonized, saves his country from his government.

Based on secret facts and secret law, the presidency assassinates American citizens on his say-so alone.

Based on secret evidence, the presidency detains American citizens for life without accusation or trial.

In the dark of night, the presidency employs extraordinary renditions to dispatch non-accused detainees to foreign countries for torture or worse.

Without warrants or probable cause, the presidency spies on American citizens, creating intimidating government dossiers (like the Soviet Union).

Invoking state secrets, foreign policy and executive privilege, the presidency blocks the victims of unconstitutional wrongdoing from judicial remedies, including extra-judicial killings.

Violating his constitutional duty to faithfully execute the laws, the presidency refuses to prosecute torture, illegal surveillance and other grave crimes motivated by political advantage.

The presidency usurps the war powers of Congress whom the Constitution’s makers relied upon to prevent ill-conceived military adventures abroad that bankrupt the nation at a frightful cost in human carnage. The presidential war against Libya marks the high water mark of the usurpation. It was initiated without congressional authority. It was continued in violation of the War Powers Resolution. It was fought without funds appropriated by Congress for the purpose. And the presidency claimed constitutional power to war unilaterally in the future whenever the President proclaims some national interest is at stake.

Behind closed doors, the presidency spends trillions of unaudited dollars on objectless military endeavors and bank bailouts.

The presidency issues “signing statements” to circumvent duly enacted legislation.

The presidency substitutes executive agreements for treaties to evade the Senate’s check on ill- conceived international military or economic obligations.

The presidency issues special interest regulations that enable K Street lobbyists to enrich their clients either by direct subsidy or by handicapping competitors.

In sum, the presidency of the United States commands vastly more power over Americans than did King George III whose tyranny provoked the American Revolution.

We are not alone in discerning a presidency claiming and exercising tyrannical powers. The American Bar Association, notorious for caution verging on timidity, has issued three reports on presidential excesses. See Task Force on Presidential Signing Statements and the Separation of Powers Doctrine (August, 2006); Task Force on Domestic Surveillance in the Fight Against Terrorism (February 13, 2006); and, Task Force on Treatment of Enemy Combatants (February, 2003).

The House Judiciary Committee similarly issued a report that chronicles serial constitutional violations of the presidency. See Reining in the Imperial Presidency: Lessons and Recommendations Relating to the Presidency of George W. Bush (Jan 13, 2009). George Washington University Law School Professor Jonathan Turley also delineated serial constitutional misconduct in a Washington Post Outlook article; 10 reasons the U.S. is no longer the land of the free (January 13, 2012).

Harvard Law Review is endowed with the intellectual fuel to redress constitutional waywardness. To shy from a candid examination of the presidency at this time of chronic vandalizing of the Constitution because of preoccupation with other legal issues would seem irresponsible—first cousin to Nero’s fiddling while Rome burned. We are confidant you will not shrink from your duty.

We believe your symposium should consider questioning President Obama by yourselves and a panel of renowned constitutional experts about the powers of the presidency enumerated in Article II, As Justice Louis D. Brandeis lectured, sunshine is the best disinfectant. And a more informed citizenry is the bulwark of our Republic.

We are eager to assist in any way you might request in planning and holding the symposium either in Washington, D.C. or Cambridge.

Bruce Fein, Law ’72; North Carolina Representative Walter Jones and Ralph Nader, Law ’58 signed this letter to the Harvard Law Review on January 31, 2012. A signed copy of the letter is available here.