Summer Break

Dear Readers —

 We are taking a few weeks off to accommodate the end of summer holidays and the scramble toward the new semester.  We’ll be back online in mid-September.  Thanks, as ever, for reading.

Best,

The LPE Team.

Bias and Exclusion in Human Rights History

Sam Moyn  –

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I am so grateful to the blog, and the respondents who wrote in to it, for the attention Not Enough has gotten here. In my brief rejoinder, I will focus on the criticisms for the sake of ongoing discussion — most of which reveal the biases and exclusions in the book’s coverage, when it comes to the past or the present. And I want to cop to those, clearly, totally, and upfront.

Okay — actually, there are some provisos.

Bias and Exclusion in General

Julieta Lemaitre frames the case for bias and exclusion most generally but, in my opinion, least responsibly. Of course, everyone has a view from somewhere — including Lemaitre herself, who has spent as much time in and around American law schools as I have. But the important question is how inevitably local perspective affects coverage and ideology.

Unfortunately, Lemaitre’s response to this important question describes the book so misleadingly as to leave it unrecognizable. At the very least, therefore, her remarks provide an occasion to make some basic points about the book that seem like a non-negotiable basis for proceeding if the goal of future scholarship is to interrogate bias and exclusion in human rights history more usefully.

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When Splitters become Lumpers: Pitfalls of a Long History of Human Rights

Peter Rosenblum –

In the preface to Not Enough, Sam Moyn obliquely acknowledges the dramatic contrast between the new book and his breakthrough work on the history of human rights, the Last Utopia: “What makes the study of history exciting is that its infinity of sources and our change in perspective can allow two books on the same topic by the same person to bear almost no resemblance to each other….”

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For a close reader of Moyn’s work on human rights the differences between his two works are head-spinning.  Where Last Utopia attacked the very idea of historic continuity in explaining the human rights movement that emerged in the 1970s, Not Enough builds an entire narrative on continuities. The result is an aspirational history for a reformed human rights movement, a history of roads not taken – with respect to equality, in particular, which Moyn elevates to the ‘original’ position – that can still be reclaimed.  Not Enough lacks the skepticism that Moyn employed so effectively in The Last Utopia to explain how disconnected contemporary human rights was from its claimed antecedents and undermines arguments in both books. In addition, by not heeding his own lessons from Last Utopia, Moyn understates the emergent human rights movement’s inability to contest what became neoliberalism. As someone who confronted those issues at the time, it is harder to dismiss the claims of complicity.

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The New Class-Blindness

Cary Franklin —

Legal advocates have scored some major class-related victories in 2018. In January, an appellate court held that the administration of California’s money bail system violated the Fourteenth Amendment rights of indigent defendants. In February, the Fifth Circuit held Harris County’s money bail procedures unconstitutional on the ground that they keep the “poor arrestee” behind bars “simply because he has less money than his wealthy counterpart.” But holdings that explicitly vindicate the constitutional rights of people without financial resources remain rare, and that rarity bolsters the widespread perception that Fourteenth Amendment law offers virtually no protection against class-based discrimination.

It is true that class-based discrimination does not trigger heightened scrutiny under equal protection in the way that race-based and sex-based discrimination do. Fifty years ago—in the era of Gideon v. Wainwright and Harper v. Virginia Board of Elections—it looked to many as if the Court was poised to recognize the poor as a protected class (or perhaps, as Frank Michelman famously argued, to recognize a constitutional right to some form of minimum welfare). But in San Antonio v. Rodriguez and the abortion funding decisions, the Burger Court both declined to recognize the poor as a protected class and rejected the idea that the Constitution guarantees minimum welfare.

Scholars have often viewed those decisions as excising all class-related concerns from Fourteenth Amendment law. But that view has obscured an important and ongoing form of class-related constitutional protection: one that resides not in equal protection but in fundamental rights doctrine. My new article (The New Class-Blindness, forthcoming in the Yale Law Journal) examines the long-standing and often overlooked forms of class-related constitutional protection the Court has developed in the fundamental rights context. These protections have played an important role in some areas of Fourteenth Amendment law for over half a century. But they are now under attack by conservative judges, who have begun to argue, for the first time, that it is impermissible for courts to consider class at all when adjudicating Fourteenth Amendment claims.

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Uniting the Working Class Across Racial Lines

Uniting the Working Class Across Racial Lines

Daria Roithmayr – 

The Democratic Party is once again dividing into a left versus center configuration, just in time for the November Election. The catalyst for this renewed debate appears to be Alexandria Ocasio-Cortez’s massive primary upset in New York’s fourteenth district. Ocasio is a democratic-socialist who has focused on her district’s predominantly Latino and black working class, campaigning on a platform of Medicare for all, a federal job guarantee, and the dismantling of ICE. More than almost any other candidate this season, she has developed an affirmative vision of economic, social and racial dignity for all working-class Americans.

The daughter of Puerto Rican parents, she has argued that the interests of people of color should be represented in the district. Remarkably, some of her strongest support came from predominantly-white Astoria. To those who accused her of playing identity politics, she responded:

“I can’t name a single issue with roots in race that doesn’t have economic implications, and I cannot think of a single economic issue that doesn’t have racial implications. The idea that we have to separate them out and choose one is a con.”

This post serves as a follow-up to an earlier post in which I issued a call to unify the old and new working classes. In this post, I want to accomplish two things. First, I want to further uncover the relationship between race and class. In particular, I want to explore the argument that race segments the working class into less-free workers of color and more-free white labor. Second, I want to strengthen the call to unite the old and new working classes across the race-class divide.

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