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Wednesday, November 09, 2016

The Divided States of America

The election map from last night and the depth of devastation and fear expressed by many people today shows clearly the disparity in opinion that exists in this country with respect to some key and emotionally charged issues.  This presidential election provided empirical evidence of how divided we remain as a nation.  We are divided urban and rural, rich and poor, black and white, native-born and immigrant, and even male and female.  Both Trump and Clinton have given speeches in the last 12 hours that recognize this deep divide and both have asked their followers to assist in bridging it.  In Trump's speech, he stated, "Now it’s time for America to bind the wounds of division; have to get together. To all Republicans and Democrats and independents across this nation, I say it is time for us to come together as one united people."  These are noble sentiments, and I hope that he is truly committed to "binding the wounds of division."  In Clinton's speech, she similarly told her distraught supporters, "We have seen that our nation is more deeply divided than we thought. But I still believe in America, and I always will. And if you do, then we must accept this result and then look to the future. Donald Trump is going to be our president. We owe him an open mind and the chance to lead."  Of course, Clinton did not say that accepting the election result and giving Trump a chance to lead means falling in line with particular policies. She urged people to "never stop believing that fighting for what's right is worth it."

It is high time that we as a nation take a long, hard look at our deep wounds of division and chart a path to healing them. The first step is honestly recognizing the fact we are very, very divided. For every person who thinks "X" on a particular issue, there is another who thinks "not X."  Fortunately, we are blessed with an inspired and inspiring Constitution that can preserve liberty and civil rights and establishes a framework for a balanced and checked government. It is abundantly clear why these checks and balances are so important, and it is imperative that we, as professors, lawyers, and citizens, work our hardest to preserve these systemic protections.  But we must do even more than that.  Lawyers are fundamentally society's problem solvers.  And we have a problem of disunity.  We each need to figure out a way that we can help the people of the United States live and work and function together as a nation in a mutually respectful way. Perhaps that means a return of more decision-making authority to individual states, as was initially intended by our Founding Fathers. Perhaps that means shoring up the division of powers among the branches of the federal government. It also means working to dismantle structures that create and perpetuate societal divisions in the many contexts in which these occur.  Because I write on Fair Housing,  making real strides to integrate neighborhoods is something that immediately leaps to my mind, but there are similar inequities and divisions in all areas of the law and our society.  Like Clinton, I believe that "we are stronger together." And like Trump, I too want "a better, brighter future" for myself, my family, and my country.  Therefore, we have to unite these Divided States.

It is time to do some soul searching and consider how we really can come together and make America not only "great" but unified, effective, respectful, and worthy of respect.  Let's take a deep breath, roll up our collective sleeves, and get to work.

Posted by Andrea Boyack on November 9, 2016 at 12:47 PM in Current Affairs, Deliberation and voices, Law and Politics | Permalink


"Free EXERCISE of religion-or just freedom to believe and pray whatever you want?"

I'm glad that state benefits of marriage, which for many has a strong religious component, is now more equally secured, not favoring only some partially because of the religious beliefs of some.

Likewise, I think health related government funds should be evenly applied, not barred because of beliefs of "life" that only some faiths accept. So, like the litigants in Harris v. Mcrae, I think the Hyde Amendment in part is a violation of freedom exercise of religion.

I think free exercise is not wrongly limited when in public spheres it burdens third parties in various cases. So, e.g., if a business owner believes if is immoral for unaccompanied women to come to their establishment and refuses service, it can be actionable. OTOH, a private religious school can require such rules or the like.

So, yes, I respect a broad understanding of religious freedom myself.

Posted by: Joe | Nov 15, 2016 10:28:44 AM

Dear biff,
First of all, I think the group is very unfortunately named! There has been some debate re: changing it to Lawyers for Freedom or something of that nature. I'd prefer that name, but I'm not getting hung up on it. For me, the idea is to defend the Constitution and the rights it guaranties to individuals.

I cannot speak for anyone else, but I consider my own views rather consistent with respect to individual liberty (ahem, of course I do, right?) For example, I am not a fan of "political correctness" and am a very strong advocate of free speech.

I'm also a huge proponent of free exercise of religion, and understand and argue that mere "freedom of belief" is grossly insufficient. Freedom of religion is a cornerstone concept in our system of government, of greater historic and continuing importance than many new-fangled rights that supposedly arise under (or in the penumbra of) the Constitution. The Constitution speaks in terms of exercise of religion, and that connotes active practice of religion. Freedom of religion is, to my mind, one of the most important individual rights.

Gun control, on the other hand, raises some different issues for me. I agree that we cannot make the country gun-free, but I see no reason that we must refrain from reasonable restrictions on who can own guns, what kinds of guns can be owned, where the guns must be stored, etc. This is a public safety concern. My feelings on this are informed by a tragic accidental death of a child close to our family when I was young.

Other things I want to make sure we are protecting include racial equality (14th amendment), religious equality (14th), freedom from search/siezure/improper gov't surveillance (4th amendment), freedom of the press - without undue fear of libel for telling the truth (1st amendment), eminent domain/takings power limitations (5th amendment), etc.

Posted by: Andrea Boyack | Nov 15, 2016 6:20:18 AM

Democrats aren't going to take back the House in 2018. Nationally, Dems need to worry about the Senate, because the 2018 map has a lot of Dem senate seats up. If you're actually serious, get involved at the state level. Get Dems into the state legislatures and focus on taking back some of the state houses. That's why the Repubs have been beating the Dems like stepchildren in elections since 2008. They rebuilt at the state level. They took the states away from Obama. From there, they took the House, then the Senate, and now the White House. They took the rust belt. But keep focusing on the national house. And keep losing.

Posted by: YesterdayIKilledAMammoth | Nov 13, 2016 12:12:00 AM

Which individual rights are these leftists for?

Freedom of speech-even if it makes people uncomfortable (AKA hate speech) or just speech which comports with the left's feelings?

Freedom of the press-even when an individual wants to publish material relevant to an upcoming election?

Freedom to keep and bear arms?

Free EXERCISE of religion-or just freedom to believe and pray whatever you want?

Posted by: biff | Nov 12, 2016 10:54:17 PM

If you want to join, you can email me at Washburn and I'll add you to the group.
Isn't it nice to be part of the vanguard for rule of law & individual rights!

(Lawyers - saving society from the worst part of human nature for hundreds of year - now in the 2016 updated version!)

Posted by: Andrea Boyack | Nov 12, 2016 2:30:48 PM

For those who are concerned that Trump's administration will result in long term damage to the rule of law and individual rights, a Facebook group has been organized for lawyers and law students. It's called "Lawyers for the Left" and already has over 67,000 members! Everyone is asked to fill out a survey to see how they can help. It's invite only, so if you are interested find a FB friend who is involved and who can invite you. Many law professors have already joined.

Posted by: Anon | Nov 12, 2016 1:59:51 PM

It isn't an either/or proposition. We can & should oppose any unfair (and illegal!!!) law or policy and any unwise appointments and we can focus on 2018 and 2020. At the same time, however, we should listen to folks who were dissatisfied with the status quo under Obama and see if we can understand their issues and frame solutions to them (not those issues with which we have moral objections to - obviously. But things like "there are no jobs in my town" and "I'm stuck in a never-ending cycle of debt" -- those sorts of issues).

Posted by: Andrea Boyack | Nov 11, 2016 5:05:03 PM

I want to give Trump a chance, despite my personal antipathy towards him and his obnoxious/offensive statements and actions during his campaign, but the initial indications (culture warrior Mike Pence taking the lead in his transition team, Ben Carson possibly as Secretary of Education??) aren't positive. I'm more inclined to start focusing on 2018 and trying to get a Democrat majority in the House of Representatives.

Posted by: Ian Sirota | Nov 11, 2016 4:58:45 PM

One cannot preach checks and balances only when a president you don't agree with is in office. If you don't want to have one-man rule, you have to be against Obama's pen and phone. It just doesn't work to ignore the Constitution's checks on government action under one president and then promote them under another president.

Also, just because people have different political preferences doesn't mean they are "divided." For example, there is a clear difference in voting between men and women, yet there is no social separation between the two sexes. In fact, more men are married to women than are married to other men.

Posted by: biff | Nov 9, 2016 8:26:54 PM

Trump is notoriously prickly and has trouble cooperating and coordinating even with supposed allies, a fact which was much in evidence even after he won the GOP's nomination. The Senate is in Republican hands, but by a narrow margin, so there is almost no room for defections. Trump is not a conservative in many senses of the word, so even without his personality/character defects, he likely would have some difficulty leading his own party (or rather what has recently become his party; he seems to have actually been a Democrat for most of his adult life, to the extent that he had any political allegiance). And on top of that he is loathed by the opposing party. These may only be political constraints, rather than structural ones, but they are real. Bill Clinton had both houses of Congress the first two years of his presidency as well; look at how that turned out for him: he overreached and ended up spending the remainder of his time in office doing a passable impression of a centrist Republican.

Posted by: Curmudgeonly Ex-Clerk | Nov 9, 2016 4:54:28 PM

Respectfully, what checks remain on Trump at this point?

Posted by: anon | Nov 9, 2016 3:49:05 PM

I just read this piece by Prof. Orin Kerr (GW) on the importance of checks & balances under President Trump. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/09/the-trump-break-point/

Posted by: Andrea Boyack | Nov 9, 2016 12:56:44 PM

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