Ask the author: The imperial presidency and the Supreme Court

This week in North Philly Notes, we re-post Ronald Collins’ interview with Kimberley Fletcher, author of The Collision of Political and Legal Timethat appeared on the SCOTUSBlog on October 18. 

Welcome, Kimberley, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your book.

Question: Can you explain why you selected the title you did?

Fletcher: Thanks to you and SCOTUSblog for this wonderful opportunity to talk about my new book, and for your insightful questions.

I wanted a title that clearly reflected how I understand the growth of executive power and authority in foreign policy-making over developmental time. Many attribute the growth of presidential powers in this area to an aggrandizement of authority by the executive, the acquiescence of Congress and the state’s capacity to act under exigent circumstances. And the role of the courts has simply been to sanction this accumulation of power. However, this perspective overlooks the Supreme Court’s institutional positioning to redefine the scope and breadth of presidential powers vis-à-vis Congress. As political questions are transformed into legal disputes, the court can give meaning to values that have profound political consequences (including regime-building). Courts are therefore primed to institute change.

Question: You are a political scientist. Political scientists like the late C. Herman Pritchett (1907-1995) and others bring their own views into the mix of constitutional law in the area of presidential power. Generally speaking, in what ways might your view and that of your fellow political scientists differ from that of lawyers and law professors?

Fletcher: As a political scientist I seek to move beyond tracing how legal doctrine has changed, to include an evaluation of how various forces (both internal and external to the Supreme Court) have been instrumental in shaping constitutional law over developmental time. Specifically, the focus of my research is the intersection of legal studies (examining how law shapes and is shaped by political, economic and cultural forces) and American political development (focusing on the causes and consequences of major transformative periods in American political history). This intersection of law and politics allows for a clearer understanding of how presidential prerogatives in international affairs have been transformed by the courts over developmental time.

Question: You divide executive power in foreign affairs into two basic categories: the pre-1936 view and the post-1936 view. First, tell us a little bit about the pre-1936 view.

Fletcher: It is well documented that as orthodox republicans, the Framers inherited a well-established fear that the greatest danger to liberty lurked in the unchecked ambitions of the executive. Because of their deeply held fear of unilateral presidential power, the Framers embraced the principle of collective decision-making, the belief that the combined wisdom of legislatures is superior to that of a single executive. And the court’s early jurisprudence (pre-1936) reasserted these principles when it decided, in a variety of cases, the dual nature of collective decision-making between the president and Congress (Bas v. Tingy (1800), Little v. Barreme (1804), and the Prize Cases (1863)). The court left little doubt about the limited scope of the executive’s war power as the lion’s share rested with Congress.

Question: Now, please explain the post-1936 view.

Fletcher: The post-1936 view represents a sharp departure from early constitutional foreign affairs jurisprudence. Nineteenth-century deference to Congress in foreign affairs gave way in the 20th century to a distinct judicial conjecture favoring unilateral executive power in international relations. The court in the 1936 case United States v. Curtiss-Wright Export Corp. instituted a new constitutional order, for the first time establishing plenary powers that were not dependent on congressional delegation. The court reasoned that although the Constitution does not explicitly vest in the president the authority to conduct foreign policy, it gives that authority implicitly through the commander-in-chief clause. Although Justice George Sutherland, majority opinion writer, misappropriated Chief Justice John Marshall’s 1800 sole-organ speech and inflated presidential prerogatives, courts, in a series of cases (Japanese internment, Dames & Moore v. Regan (1981) and Regan v. Wald (1984)), have entrenched this new constitutional order, which in turn has institutionalized presidential ascendency.

Ultimately, the Supreme Court, over developmental time, has delineated the constitutional and political space that has allowed presidents to have the authority and the legislature to have the power to cooperate in a way that meets the practical realities of handling the ever-intensifying realm of international relations.

Question: As a historical matter, how does the Supreme Court’s 7-1 ruling in United States v. Curtiss-Wright Export Corp. in 1936 square with the originalism of Justices Antonin Scalia and Clarence Thomas?

Fletcher: Scalia was a staunch originalist and Thomas comes close to this view. And Justices Neil Gorsuch and Brett Kavanaugh (identified as “stalwart originalists”) also follow in this tradition. Originalists maintain that the Constitution is an enduring document and major changes need to be done through the democratic process.

Question: In several important respects, Presidents Barack Obama, George W. Bush and Bill Clinton followed in the power-aggrandizing footsteps of President Franklin Roosevelt when it came to their authority over wars and foreign affairs. Given that, and the virtual abdication of oversight power by Congress, how realistic is it to think the federal courts have any role to play here?

That is, when one combines the enormous powers conceded to the president in cases such as Curtiss-Wright, United States v. Belmont (1937), United States v. Pink (1942), Dames & Moore v. Regan(1981)Regan v. Wald (1984) and Zivotofsky v. Kerry (2015), it seems that the limits the Supreme Court placed on such powers in a handful of detainee cases (e.g., Hamdan v. Rumsfeld (2006) and Boumediene v. Bush (2008)) are paltry by comparison. What is your sense of that?

Fletcher: The federal courts have a sizeable role to play. I believe it is less about the courts ceding power and more to do with the courts advancing and redefining presidential prerogatives.

Yes, Obama, Bush II and Clinton all followed in the power-aggrandizing footsteps of FDR, but it was the CurtissWright court that provided the legal jurisprudence to successive courts and the executive branch to proceed in this vein. While subsequent courts have further empowered the executive to conduct foreign affairs, it is the Supreme Court that remains institutionally positioned to provide any limits to that power. As I show in chapter six of my book, when Bush II challenged the institutional integrity of the court to review presidential actions, the court took umbrage in the detainee cases. When the court is challenged on its supremacy over constitutional interpretation, it confronts the primary commitments of the majority coalition and (re)establishes its institutional legitimacy. So Hamdan and Boumediene both remind presidents that when they challenge the role of the court, it will push back, and it will redefine the scope of executive authority if needed. These cases also show that when both institutions (executive and legislative) violate constitutional guarantees, the court will not approve of such action. With that said, even though the court rebuked presidential prerogatives, these decisions did not adequately address the core war-making powers of the president.

Question: You discuss executive powers in the context of “pragmatic realities.” You note that “exceptional times demand exceptional measures.” In our post-9/11 terrorist world buffeted by cyber terrorism, are not all times “exceptional” ones? After all, if the terrorist threat is constant, do not “pragmatic realities” dictate “exceptional” latitude when it comes to executive powers in this realm?

Fletcher: That has certainly been the claim: In a post-9/11 terrorist world where the terrorist threat is constant, we should afford exceptional latitude to the executive branch to keep our nation safe. Although this argument has enjoyed widespread support, I would ask at what cost? As I argue in the book, it is the court’s responsibility to determine when heightened national security demands the restriction of rights. And the court strikes this balance by evaluating external factors in line with internal norms (see 1952’s Youngstown Sheet & Tube Co. v. Sawyer and the detainee cases). The executive’s claims to unrestrained power and authority during exceptional times are then bounded by the court’s determination of those claims.

Fletcher.Kimberley

Kimberley Fletcher

Question: In a recent essay in the New York Review of Books, Jonathan Stevenson wrote: “Over the past forty-five years, the effective scope of the [War Powers Act] has remained more or less the same. Hawks don’t want to press federal courts to clarify how widely it applies for fear of a ruling that would restrict executive power. Doves are afraid the courts will expand it. The courts themselves are wary, too. They tend to regard disputes between the White House and Congress about the applicability of the act as political questions inappropriate for judicial review.” If so, where does this leave Article III courts and especially the Supreme Court?

Fletcher: First, speaking to the War Powers Resolution of 1973. This act represented an abject surrender of the war power. Ultimately, Congress cannot delegate to another branch the constitutional power to decide war. Statutes, such as WPR, that intend to limit executive authority by requiring legislative oversight have been interpreted in ways that permit substantial presidential autonomy. For example, Clinton was quite aggressive in his use of military force without congressional approval by relying on executive orders and loopholes of the WPR – skirting around the strict reporting requirements by filing separate reports to Congress that regenerated the “sixty-to-ninety-day clock.”

Second, when courts invoke the political question doctrine they abdicate their constitutional obligation to review cases and controversies. That leaves us waiting for the issue to be resolved by the political branches, and, as we know, Congress is unlikely to challenge the executive directly. And, even when legislative members have brought a suit (1979’s Goldwater v. Carter and 2002’s Kucinich v. Bush) the courts have sidestepped the issue, punting it back to the political branches. Consequently, the executive branch continues to circumvent the democratic process as it forges ahead with its foreign policy agenda.

Question: 1984’s Regan v. Wald, concerning the Treasury regulation that barred travel to Cuba, was a 5-4 decision. In his dissent, Justice Harry Blackmun made a strong case that Congress intended to bar the president from expanding the exercise of emergency authority under Section 5(b) of the Trading With the Enemy Act.

Was this a case of the Supreme Court exercising its supremacy in matters of presidential power in foreign affairs, or was it an example of the court yielding to presidential supremacy?

Fletcher: As I discuss in my book (chapter five), this is a clear case in which the court was flexing its institutional muscle.

Dames (1981) and Regan (1984) were decided when the U.S. was involved in the Cold War and the political pressures placed on the administration necessitated a number of wide-ranging policies. Under these circumstances, the court contended that the executive had a significant role in the conduct of the nation’s foreign policy as the president attempted to contain the spread of communism. The court in both cases, re-engineering authority, clearly asserted its prowess in settling which branch and by what measure foreign policy was conducted.

By re-examining Regan in line with Dames, I show the extent to which the court deliberately shifted authority from Congress to the president by finding exceptions to justify and sanction the executive’s broad discretionary authority. For example, the Regan court determined that congressional silence and practice implicitly delegated to the executive the emergency authority to restrict travel unilaterally.

Question: The ability of federal courts to review the president’s powers in the domain of international affairs depends on the existence of a concrete case or controversy under Article III. Absent some concrete injury to a particular person or class of persons, who would have standing to contest the scope of presidential power? See Campbell v. Clinton (D.C. Cir., 2000) (holding that 31 House members lacked standing to contest Clinton’s conduct of the Kosovo war). How much do Article III constraints on litigants limit the Supreme Court’s ability to check presidential power?

Fletcher: To your first question. Courts have noted that to assert an institutional injury the chamber, as an institution (and not a few disgruntled legislators), must show it has been injured. The courts have a mixed history on this issue. For example, in 1939’s Coleman v. Miller the court granted standing to 21 Kansas senators because the court found that the senators represented the Senate’s institutional position. But in other instances, 2000’s Campbell v. Clinton and 2002’s Kucinich, courts have dismissed cases because of a lack of standing; a few legislators cannot represent the entire chamber. It is my sense that over time these cases have become more about challenging executive action as an institution, which in turn would require the congressional chamber to be represented in the case as a collective body and not as a few legislators.

To your second question. It is less about whether Article III constrains the court and more a question of the court claiming that Article III constrains it. By that I mean the court can conveniently determine when Article III constrains its decision-making. It is my view that in many of these cases the court could decide on the merits. A clear instance would be whether the president has the authority to unilaterally terminate a treaty (Kucinich 2002).

CollisionofPoliticalandLegalTime.jpgQuestion: You quote Norman Dorsen for the proposition that “national security has been a graveyard for civil liberties for much of our recent history.” It seems that the court’s 2010 ruling in Holder v. Humanitarian Law Project (upholding a material-support-to-foreign-terrorist-organizations restriction in context of political speech) confirms that. Once any administration invokes the “national security” mantra, isn’t that really the end of the matter when it comes to any meaningful check on that power by way of judicial review?

Fletcher: National security concerns have been expanded to include just about anything, from immigrants, refugees and separating children from migrant parents, to importing steel and aluminum. And once national security is invoked it appears as though that it is the end of the matter, as the administration cannot be challenged. But this rhetoric is a public and legal justification for policies that appear, at times, to have little association between the issue presented and viable threats to the nation. So, the courts can play an important role to determine when these claims are valid. In fact, the U.S. Freedom of Information Act permits courts to review whether national security information is properly exempt from disclosure, but it requires an active judiciary to check unjustified national security secrecy. The Supreme Court can thereby strike a necessary balance and serve as a meaningful check just as I show in several chapters of my book.

I would also add that it is incumbent upon us all — general public, media, Congress and elites — to keep our government accountable when it invokes the national security mantra.

Question: Which of the justices in the current five-member conservative bloc do you think might vote to rein in executive power in the foreign affairs area?

Fletcher: I don’t believe the court will really rein in executive power in foreign affairs unless the court’s institutional authority to review such actions is called into question (see detainee cases). Moreover, as recently as 2015 the court in Zivotofsky v. Kerry entertained no direct challenge to the executive’s claim of presidential prerogatives. Yes, the court appeared to have jettisoned the sole-organ doctrine, but the court in a very significant way, in a number of passages, continued to advance plenary and exclusive presidential powers.

In terms of the conservative bloc, Kavanaugh’s confirmation places him alongside Alito and Gorsuch, with Thomas farthest to the right and Chief Justice John Roberts situated more toward the middle. With this alignment it is hard to imagine this bloc limiting the executive’s authority, but there is always room for renegotiating the extent of presidential prerogatives statutorily. Thomas, for example, remains steadfast in supporting presidential prerogatives: The court should not “second-guess” the decisions of the executive branch (Hamdi (2004)). And Kavanaugh’s paper trail suggests he is not only sympathetic to the office of the president (in matters involving civil suits, criminal investigations or criminal prosecutions), but also that he has a robust view of executive power in the area of national security. For example, Kavanaugh went out of his way in Klayman v. Obama to argue that the metadata-collection program did not necessitate warrants because the executive had ordered the program to combat terrorism.

However, if assessments are correct and Roberts does move to the left (as we saw with his vote to uphold the constitutionality of the Affordable Care Act), then perhaps he might be the one justice to sway the balance. But that is hard to imagine given Roberts’ 2008 dissenting opinion in Boumediene. Here Roberts stated the government had devised a deliberate and careful system of procedures for those detained in the ongoing military conflict.

Question: Executive power extends beyond the particular actions of a sitting president. For example, to an unprecedented degree the Trump administration has left many foreign-policy posts unfilled. The result has been to shrink the State Department. In an interview aired on Fox News, President Donald Trump stated: “Let me tell you, the one that matters is me. … I’m the only one that matters, because when it comes to it, that’s what the policy is going to be. You’ve seen that, you’ve seen it strongly.” Assuming, hypothetically, that practice of leaving vacancies unfilled continued for whatever reasons, what role, if any, does that leave the Supreme Court in shaping the extent of presidential power?

Fletcher: Great question. When State Department positions are not filled we are potentially left with incoherent policies, or policies shaped by an underrepresentation of career foreign service officers. Consequently, we are undermining U.S. diplomacy and thus jeopardizing U.S. leadership globally. Although the lack of appointments may not be disastrous, as positions are filled in an acting capacity, these acting positions are not fully empowered and cannot remain indefinitely.

Presidents, at the end of the day, have largely been determining American foreign policy (with or without State Department help), and the court has aided in shaping the extent of presidential power in this area. This is all too evident with the 2015 Zivotofsky decision: The court determined in that case that the president has the exclusive power to recognize (or not recognize) foreign nations, so the legislature may not require the State Department to indicate in passports that Jerusalem is part of Israel.

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A Q&A with Judge Nelson A. Diaz

This week in North Philly Notes, an interview with Nelson A. Diaz, about his inspiring new autobiography, Not from Here, Not from There.

You came to America as a child—literally—in your mother’s belly. Can you discuss the experience of being part of the wave of Puerto Rican immigrants post-World War II?
During the 1940’s and 1950’s, many Puerto Ricans came to New York in search of greater job opportunities because the economic hardships confronting Puerto Rico after WWII. My mother came to New York to provide a better life for me. She was a woman who was ahead of her time because she was a working mom at a time when most mothers stayed at home with their children. She did not have a choice. She worked as a seamstress in a factory to make ends meet. Although I grew up in very humble circumstances, my mother always provided the example of love, hard work, and faith. The Marine Tiger where she landed was a famous ship used in WWII for transport of soldiers and many came to the shores of NY the same way having American citizenship since 1917. Public Policy in the availability of Public Housing made a major difference in our lives.

You grew up in Harlem and had some hardscrabble experiences. What was that period of your life like?  You talk about being in fear at age 15. What helped you get through that time and not just survive, but thrive?
Growing up in poverty does not give you many options. Violence, gangs, and drugs are all around. I had a lot of problems in school much of which stemmed from my inability to speak and read in both English and Spanish. Trying to live in two different worlds – Puerto Rican culture and American culture – was difficult. I was not doing well in school and was always struggling to get better grades. At the age of 15, I went from being a D student to an A student in one year through the saving grace of the church.

Through faith, I felt hope. Hope for my future, an expectation that better things lied ahead and a strong desire to work hard for it. Through faith, I no longer felt unworthy and I knew that I could achieve greater things, not only for myself but also for others. The intervention of people in my life made a difference.

Not From Here_smYou faced considerable discrimination in Philadelphia (e.g., passing the bar). Was there a particular experience that made you learn and grow?
Growing up as a poor Puerto Rican kid from Harlem, I always had to overcome the barriers of stereotypical attitudes: a school counselor who believes that you are not college material, or institutional or systemic bias in law schools and government, or law firms and corporate boards that lack diversity even though there are highly qualified people of color. That is why civil and human rights are important issues that I have spent my life fighting for. I have spent a lifetime breaking barriers so others can walk through the doors—whether it was becoming a founding member of Black Law Students Association and the Federation of Puerto Rican Students because I understood the power of coalitions of interest; or becoming a community activist to protest the lack of diversity and open up law school doors for others; or promoting economic development in the Latino community; or becoming the first Puerto Rican White House Fellow, where I worked for Vice President Mondale and was able to promote Latino diversity in the political arena and influence public policy both domestically and internationally; or becoming the first Latino judge in the Commonwealth of Pennsylvania; or becoming the first minority administrative judge and presiding over court reforms that brought seven years of backlogged cases to the present and saved the courts millions of dollars; or fighting for the human rights of Soviet Jews; or becoming the first American judge to sit on a Japanese Court; or fighting against segregation in housing nationwide; or promoting the inclusion and promotion of minority and women lawyers in the profession; or fighting for diversity on corporate boards. I may have been the first, but I did not want to be the last!

The history of anyone but Caucasian who had passed the Pennsylvania Bar demonstrates that until the Liacouras Bar Committee found discrimination in the Bar exam the Commonwealth of PA since its founding, the bar had only admitted 67 African Americas and no Latinos before 1969 when I entered Law School. It was apparent that it was impossible to believe that I might get admitted and the city was so segregated by neighborhoods with continuous racial conflict between neighborhood boundaries.

Eventually, your career took off with appointments as the General Counsel at HUD, and as a city solicitor who helped with immigration issues. Can you describe your experiences?
The White House Fellows program gave me an education on the world and lifted my profile in my professional life.  The Judicial appointment and election also changed the public perspective of me. Both of these appointments, including the Administrative Judge title, were avenues of increasing diversity in the workplace. Although I was flattered to have been asked to by Henry Cisneros, who is a trailblazer and friend, to become his General Counsel at HUD, I did not want to go to Washington, DC. Henry was persistent and I eventually agreed. By breaking another barrier—becoming the first minority General Counsel—I was determined to increase the numbers of minority and women lawyers hired, retained and promoted because of the shocking lack of diversity among the government attorneys. I have always felt that the inclusion of minorities and women is an important step to changing systemic bias that exists in most institutions. As Latinos, we need to select our own leaders and continue to help each other climb the ladder of success.

Your book’s title is curious, it suggests a lack of belonging. Can you discuss that?
The title of my book, “I am not from here and I am not from there/No soy de aqui, ni de alla,” is about being a Puerto Rican born and raised in New York. We are not accepted here because of stereotypes and prejudice and yet not accepted as Puerto Rican from the Islanders because we were born in the States. It begs the question so where do we belong? That is a difficult barrier to overcome. You continue striving for excellence, inclusion, and moving the agenda forward so there is equality for all. There are many examples of rejection on both sides of the Atlantic both professionally and community where Puerto Ricans resided.

My parents lived most of their lives in Puerto Rico while I lived all of my life in the United States. I visited regularly since the age of 10 was educated in the issues of both countries, despite my professional capacity and assistance was there rarely an opinion they sought or cared particularly as you can see from the major Hurricane Maria. When they used my help it was limited to educate their officials and not my expertise which normally was ignored. That never gave me pause to keep trying wherever possible.

Do you think you achieved the American Dream?
Latinos positively contribute to the wellbeing of this great country. My story demonstrates some of the many ways, Latinos contribute to America. I hope that this book is seen in a bigger context than just my story. In the backdrop of the negative and racist attitudes about Latinos being only “criminals and rapists” my story is one of many, Latinos who work hard every day to put food on the table, house their families as best as they can and educate their children to have equal opportunities for the future. Isn’t that what everyone wants – the American Dream? History has eliminated most of our contribution and we fail to tell the story of how we have made America better.  My book will hopefully inspire young people to strive for a better life.

Celebrating Banned Book Week

This week in North Philly Notes, for Banned Book Week, we blog about Prison Masculinities, edited by Don Sabo, Terry A. Kupers, and Willie London. A passage on prisoner rape prompted the entire state of Texas’ prison system to ban the book!

 

 From the Texas Civil Rights Project 2011 Human Rights Report:

Prison Masculinities, edited by Dr. Terry Kupers, M.D., Don Sabo, and Willie London, is banned because passages on pages 128-131 discuss prisoner rape. A prisoner describes how he was “humiliated telling anyone about” being sexually assaulted, and how he underwent “torture scenes” at the hands of fellow prisoners. TDCJ officials have testified they would even censor government documents that discuss prison rape. 

The book’s editor, Dr. Kupers, an expert in prison mental health care, included the passage as an “illustrat[ion of] the kind of prisoner orientation and education that is mandated by federal law – i.e. the Prison Rape Elimination Act signed into law by President [George W.] Bush in 2003.” According to Dr. Kupers, “the material in Prison Masculinities is designed to facilitate peaceful, smooth operations of the prisons and contribute to the rehabilitation of prisoners.”

About the book:

Prison Masculinities explores the frightening ways our prisons mirror the worst aspects of society-wide gender relations. It is part of the growing research on men and masculinities. The collection is unusual in that it combines contributions from activists, academics, and prisoners.

The opening section, which features an essay by Angela Davis, focuses on the historical roots of the prison system, cultural practices surrounding gender and punishment, and the current expansion of corrections into the “prison-industrial complex.”

prison masculinitiesThe next section examines the dominant or subservient roles that men play in prison and the connections between this hierarchy and male violence. Another section looks at the spectrum of intimate relationships behind bars, from rape to friendship, and another at physical and mental health.

The last section is about efforts to reform prisons and prison masculinities, including support groups for men. It features an essay about prospects for post-release success in the community written by a man who, after doing time in Soledad and San Quentin, went on to get a doctorate in counseling.

The contributions from prisoners include an essay on enforced celibacy by Mumia Abu-Jamal, as well as fiction and poetry on prison health policy, violence, and intimacy. The creative contributions were selected from the more than 200 submissions received from prisoners.

About the Editors:

Don Sabo, Professor of Social Sciences at D’Youville College in Buffalo, is author or editor of five books, most recently, with David Gordon, Men’s Health and Illness: Gender, Power, and the Body and, with Michael Messner, Sex, Violence, and Power in Sports: Rethinking Masculinity. Sabo has appeared on The Today Show, Oprah, and Donahue.

Terry A. Kupers, M.D., a psychiatrist, teaches at the Wright Institute in Berkeley. He is the author of four books, editor of a fifth. His latest books are Prison Madness: The Mental Health Crisis Behind Bars and What We Must Do About It and Revisioning Men’s Lives: Gender, Intimacy, and Power. Kupers has served as an expert witness in more than a dozen cases on conditions of confinement and mental health services.

Willie London, a published poet, is General Editor of the prison publication Elite Expressions. He is currently an inmate at Eastern Corrections. For nine years he was a prisoner at Attica.

Lessons from the juicy details of a protracted legal battle

This week in North Philly Notes, Jean Elson, author of Gross Misbehavior and Wickedness—about the notorious divorce between Nina and James Walker in early twentieth-century Rhode Island—provides some keen observations about the issues raised during the sensational trial. 

The events leading up to and taking place throughout the Walker divorce hearings raised issues that were not solely individual matters; they signified social changes evolving in American culture at the time. Acrimonious testimony often focused on incompatible views of gender, family, and class—ideas that characterized broader cultural debates of the Progressive Era. The trials raised many questions including the following:

§  Must a wife obey her husband’s orders?
James Walker viewed his opinion as the only one to be taken into consideration, and his wife, Nina, began to rebel against this.

§  Is a wife required to submit to her husband’s sexual desires?
In the late 19th and early 20th centuries, sex meant the risk of pregnancy for women, and pregnancy was a dangerous undertaking at the time, with a high mortality and morbidity rate.

§  Are children the property of their father?
During the early 20th century courts were just beginning to award custody to mothers in divorce cases. The judicial philosophy changed from viewing children (and wives) as property of the father and husband to considering a mother’s love and devotion to children as more important. Nina was fortunate that enlightened judges awarded her custody throughout the long divorce proceedings, as well as when the divorce became final.

§  Should fathers provide their children with emotional, as well as financial, support?
The new view of fathers at the time of the divorce was that they could provide love and companionship for children, rather than just moral education. This is currently taken for granted. Nina and James, as well as witnesses for each side disputed whether James was capable of providing emotional support.

§  Is corporal punishment of children to be condoned?
An important issue in the Walker case was Nina’s charge that James physically punished the children, a situation that would not have been as seriously questioned prior to the Progressive period.

Gross Misbehavior and Wickedness_sm§  Must a husband be faithful to his wife?
Nina charged James with adultery, as well as “gross misbehavior and wickedness” (a charge only acceptable in Rhode Island) with the children’s governess. Previous generations of upper class women may have been more likely to accept that their husbands had mistresses. The issue of whether James engaged in extra-marital sex was so important that James’s purported mistress was examined by doctors to determine whether she was a virgin.

§  Must a wife remain with her husband when doing so endangers her physical or mental health?
Nina claimed that her marriage endangered both of these. Whereas endangerment of physical health by a husband had long been an acceptable ground for divorce, it was only in the early 20th century that judges began to accept endangerment of mental health as a valid reason for divorce.

§  Is a wife obliged to be more loyal to her husband and his family than to her own?
James claimed that Nina’s family constantly influenced her in a way that was detrimental to the marriage, and Nina resented James’s family’s interference in their married life.

§  Should a feminist always support the woman when a husband and wife argue?
James’s sister Susan was a well-known feminist and suffragist, but took her brother’s side in the divorce dispute. She did not see the connection between the public rights of women she upheld and her own sister-in-law’s powerlessness in her own home. Nina did not make this connection between public and private rights either, and she was vehemently against giving women the right to vote, although she wanted more power in her marriage.

§  How involved should parents be in a grown child’s marriage?
Both Nina’s and James’s family were very involved in the couple’s married life, to the detriment of the couple’s relationship with each other.

§  Is it proper for a single working-class woman to befriend a married upper- class man?
Nina’s side claimed that it was completely inappropriate for James to be on friendly terms with the family governess and to correspond with her (their letters are a very interesting part of the story).

§  Is divorce the appropriate solution for a troubled marriage?
Divorce was probably the right solution for Nina and James Walker, but the Walker children were cut off forever from their father and his side of the family.

We continue to grapple with most of the above questions in contemporary American society.

Temple University Press is having a Back-to-School SALE!

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Public Security: The Most Important Theme in Rio de Janeiro

In his second Olympic-themed blog entry, Philip Evanson, co-author of Living in the Crossfire, addresses the theme of public security in Rio during the Games.

Two term Rio de Janeiro Mayor Eduardo Paes, who has easily been the most interviewed and quoted public authority for the Rio Olympic games, has said more than once that public security is the most important theme in Rio de Janeiro. For Olympics organizers, a main question always has been will public security forces be able to control Rio de Janeiro’s rising street crime and newly emboldened gangs. A much less publicized question—How can anti-Olympics protesters be repressed without violating their human rights?—has already been answered: It can’t be done. The protesters demonstrate against what they view as public money misused on the Olympics because it is needed much more for health, education and various social programs. There are also protesters—some doubtlessly the same individuals—fighting against the impeachment of President Dilma Rousseff. They see impeachment now entering its final phase as a coup d’etat by her political party opponents against Brazilian social democracy. Not discussed at all in politically charged Brazil is the fear of sabotage by opponents of the Olympics or the government—such as setting fires in Olympic installations. All of the above are the various public security fears that must haunt an authority such as Minister of Justice Alexander de Moraes. Focused on Brazilian behavior which is what he knows best, Moraes has played down the possibility of foreign ISIL inspired terrorist attacks.

In the lead up to the Olympic games, public security preparations were usually discussed as numbers of police and of funding them. Taking the lead in providing security is the state of Rio with more than 30,000 police available for Olympic duties. However, for most of 2016, the state of Rio has been broke. On June 17, 81 year old vice-governor and economist Francisco Dornelles—acting in the place of Governor Luis Fernando Pezão then undergoing treatment for lymphoma—rattled Olympic organizers when he declared that Rio de Janeiro was in a “state of public calamity.” It was the first time in Brazilian history this designation had been used to describe anything other than a natural disaster. An immediate effect was the return of 50,000 Olympic event tickets. Dornelles also took experts in public administration by surprise. They questioned whether a “state of public calamity” could be applied to a fiscal collapse. But the wily acting governor, a veteran of 30 years of political combat in Rio de Janeiro, got what he wanted. He activated an immediate transfer of 2.9 billion reais, about 900 million dollars at the current exchange rate, from the federal government to Rio de Janeiro. The money was to help strengthen public security at a time when state police forces more and more appeared not up to the job protecting the people of Rio, the athletes, and the half million tourists expected for the Olympics. The transfer meant police and other public service professionals including teachers and health workers could expect to receive their salaries. One or more local gangs took notice and responded by hijacking a truck transporting containers just arrived from Europe. The containers carried the equipment of two German TV networks for transmitting the Olympic games. The truck was later abandoned. The containers had not been opened, and the valuable equipment was untouched and safe. But the gangsters served notice that they had interests of their own. Following this show of strength, some arrangement might be expected whereby organized crime groups will play a part in keeping Rio de Janeiro safe during the Olympics. Retail and wholesale drug trafficking no doubt continues with little interference. Brazil ranks second on the list of countries in consumption of cocaine, and Rio de Janeiro is a major port for the export of cocaine to Africa and Europe.

The police began to receive back salaries dating to May. Still, on July 4, the civil police staged an event at Rio’s international airport when they received passengers with  “Welcome to Hell” English language banners, and with stuffed figures of dead, bloodied police spread on a terminal floor. The message: Police would not die for Rio if they were not being paid. An exasperated Eduardo Paes viewed the spectacle as yet one more public relations disaster. He went on CNN and in an English-language interview pronounced Rio’s public security “Horrible.” He blamed the police, and the Rio state government. He insisted the city government of Rio had nothing to do with public security which is a state responsibility. But he also knew help was on the way. The next day Mayor Paes welcomed the arrival of federal armed forces, federal police, and soldiers of the National Security Force. Together with state police, they are now conspicuously present in order to discourage crime, and reassure visitors that Rio de Janeiro is a safe haven. Accordingly, 51,000 members of security forces have been deployed in metropolitan Rio. 22,000 members of the armed forces and federal police are assigned to protect the Olympic installations, the routes and public transportation taking people to and from the games, and the Tom Jobim international airport. With security apparently well in hand, a much subdued Paes declared on July 5th that the Olympics would surely be a tremendous success and leave a positive legacy for the city of Rio.

Layout 1This optimism lasted a little over two weeks. The evening of July 21 brought news that police were arresting 13 homegrown ISIS inspired would-be terrorists. All were self-indoctrinated converts to Islam. They communicated with each other via social media. Calling themselves “Defenders of Sharia,” they pledged allegiance to ISIS as virtual acts on the internet. One suspect was said to have tried to buy weapons in Paraguay.   Minister of Justice Moraes said the individuals were clearly amateurs, and in the early stage of planning something.

The arrests and revelations clearly added to public uneasiness in Rio de Janeiro, and mobilized authorities. Would Brazilian security forces be up to the job of thwarting one or more terrorist attacks? There was skepticism as can well be imagined. But people soon learned that the project of thwarting had become internationalized. Other countries, including the United States, France, Israel and Russia with their more experienced intelligence services were present for the Olympics and working with Brazilians which brought reassurance. Intelligence and other security agents—no doubt feeling their backs to the wall after all the recent terrorist attacks in different countries—seem absolutely determined to stop terrorists at the Olympics, be they a Brazilian home grown variety, or foreigners infiltrated into Olympic crowds and groups of tourists. It’s them against us. In this spirit of providing safety, wherever crowds of people gather in Rio, there are substantial numbers of well-armed police or other security forces reinforced by plainclothes agents.

Many people in Brazil and elsewhere no doubt believe that terrorist acts cannot be stopped entirely. The Rio Olympics offer a chance to show otherwise at least for a moment when several billion people around the world are watching the games on TV.  Minister of Justice Moraes has lately declared “minimal” and “approaching zero” the probability of a terrorist attack.

Uncanny experiences explained

This week in North Philly Notes, Dennis Waskul, author of Ghostly Encounters,  writes about what prompted him to write about his uncanny experience. 

Whether you are a believer or a skeptic one fact is undeniable: people continue to report uncanny experiences with something that they believe is, or might be, a ghost. Those experiences people have, how they interpret them, and the reasons people believe (or disbelieve) are undeniably real regardless of whether one has faith in the existence of ghosts or, equally, faith in contending that ghosts are a fanciful fiction. In short, ghosts exist as a social and cultural phenomenon, the focus of our research, and the socio-cultural reality of ghosts is entirely independent of the ontology of them. Thus, in Ghostly Encounters, Michele and I have maintained an agnostic perspective on those fundamentally unanswerable questions as we spoke to people who believe they have experienced a ghostly presence and visited places alleged to be haunted. Our focus throughout this book is on the experiences people report, how people arrive at the conclusion that they have encountered a ghostly presence, what those ghosts do to and for people, and the consequences thereof.

Ghostly Encounters_smA wise sociologist, Gary Marx, once taught me to know the difference between a scholar and a fundamentalist. As Gary phrased it so succinctly, “the scholar starts with questions, not with answers.” Seen in this light, fundamentalists come in many guises, and only some of them are religious. Hence, as scholars, Michele and I sought to start with questions about the ghosts that people allegedly encounter, the unique ways that people interpret them, how those ghosts function in the lives of people, what those ghosts do to and for people. Starting with questions, instead of answers, is always at least a bit risky, and mainly because one does not know where those questions will lead, nor what experiences they might facilitate. Indeed, from beginning to end Ghostly Encounters was an incredible adventure for both Michele and I as it led us to people and places we never expected, in addition to understandings and surprising experiences that we did not anticipate. In the end, we sought to replicate that unforeseen experience for our readers with intimate and accessible forms of ethnographic writing that bring our readers inside of these lived experiences of ghostly encounters, within a highly unique organizational structure that assures unexpected surprises. While we hope our readers find the book both informative and enjoyable, above all we urge anyone interested to equally know the difference between a scholar and a fundamentalist—and to start with questions, not answers.

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