PEGGY COOPER DAVIS
Is this working? Oh it is, how nice. So, I echo the thanks to our conveners, and to the supporters of our conveners, but I'm going to rush, because we want to save lots of time to talk with you folks, and I have several things I want to say. I have to ask you to apply here the principle of charity that linguists sometimes talk about, and that's the principle that, if someone says something that doesn't seem to make sense, instead of saying ugh, that doesn't make sense, you think about how it might make sense, and then you might understand the person. Because I'm going to make some leaps here, and I ask you to follow along with me.
So the first thing I'm going to do is say that in 1980, I am showing my age, shortly after I was sworn in as a family court judge, a more senior judge of that *140 court looked me in the eye, she was a wonderful woman, and said, you know, we do things to families that we would not do to our own. She was a white judge speaking to a new Black colleague, and so I understood that the kinship that she was suggesting was a kinship of class, but she was a politically sophisticated woman, and so, I understood also that the ‘we’ was often white, and the ‘our own’ were white, and that the others to whom we did things that we wouldn't do to our own were people of color.
The subject of this symposium, racism in child protective systems, seems a little bit remote from the subject of my talk. The subject of my talk is Post-colonial Constitutionalism. I hope that I can quickly show you how and why those things are related. People who are familiar with the child welfare system, and I think almost everyone in this room is, or with child welfare systems in other communities, will probably agree quickly that the comparison to colonization is apt. You have an entity, a child welfare system, that assumes authority over and supervises and alters the terms of life in a community and in families that had thought of themselves as autonomous. And it does so, most importantly, as my good friends, with whom I have the honor of sharing this panel have pointed out, with a presumption of cultural or informational, if not biological, supremacy. And supremacy's the word to keep your eye on. It professes to act in the long-term interests of communities and families, as it undertakes a kind of cultural or educational conversion. Kidnapping of native children to boarding schools for socialization comes to mind, as do the orphan trains of immigrant children being shipped to more American homes farther west in the past. I want, though, to emphasize that the colonial metaphor is somewhat harsh, for child welfare agencies earnestly and sometimes honorably aim to protect children against the vices, failures, or incapacities of their parents rather than the structural forces that make it difficult for their parents to care for them. So, we can't fault the agencies for expressing this communitarian sense of responsibility. Responsibility for children with whom they have no kinship, no friendship ties, and very often, no ties of affinity. That sense is appropriate and commendable, but I will suggest to you that good governments, good child welfare agencies, like good parents, must appreciate and respect the tension between liberty and loving care. And I'll suggest that governments that are self-consciously post-colonial have things to teach us about managing those tensions.
When I see speak of post-colonial constitutionalism, I refer to constitutional principles adopted in reaction to supremacist arrogance and atrocity. The South African post-Apartheid constitution is the most prominent example. But it's joined by post-World War II constitutions of many other nations, following independence from imperial powers. The German post-Holocaust constitution, while not post-colonial in the sense that it followed independence from an imperial power, is analogous in that it is reactive to supremacist exterminations and other policies. Analysts who are more knowledgeable than I in the field of comparative law have pointed out that post-colonial constitutional policies and practices vary widely in their embrace of human rights principles and I know that's true. Nevertheless, *141 there is a burgeoning jurist prudential and political set of philosophies that are self-consciously reactive to supremacist and imperial assumptions. I want to argue that we in the United States would be a better people and would have, among other things, a much better child welfare system were we to adopt a similarly reactive stance. Now the United States is post-colonial, technically, of course, in the sense that our country was formed in rebellion against British imperial rule. We seem, however, to be in denial about our post-colonial status, and the United States is not usually thought of as a post-colonial nation. This has to do, I suppose, with the fact that the United States revolution was more a rebellion of colonizers than of indigenous people, more like a Boer war than like an indigenous or enslaved peoples' independence struggle. I suppose it also has to do with the fact that many in the United States have thought of themselves as members of a white community, alas, many still do. And colonization is typically thought of in terms of a white other binary sign. So, that said, I want to try to address three questions. How is it that we are, after all, post-colonial? Why is our post-colonial posture an especially important thing to give attention to right now? And what has all this to do with Black families in the child welfare system?
Okay. How are we post-colonial? I appreciate that we're post-colonial in an unusual way. The revolution of the 1770s was a war against distant monarchical rule, and clearly a rule against governments without representation. But British rule over the 13 colonies was not as overtly supremacist as was British rule and the rule of other countries over lands that were populated by people of color. Disregard of native sovereignty in the United States and compromise with the institution of slavery factored heavily in the United States revolutionary calculus. The declaration that we are all created equal and endowed with inalienable rights was not explicitly given the force of law. And the constitution that followed did not disavow, but only papered over, the new nation's caste structure. It contained no equal protection clause. The Bill of Rights was an afterthought that protected only against abuse from the national government, states remained free to enslave and free to disenfranchise. Citizenship was undefined and the Supreme Court was therefore able to announce in Dred Scott that African Americans could not qualify. So, I invite you to think differently. I invite you to move from the 1700's and think of the United States Civil War as a war of liberation from colonial-style oppression. And to think of the post-colonial, the post-Civil War reconstruction as the formation of a new nation that would stand well, at least, half-heartedly stand against supremacist oppression. To think of enslaved people deserting plantations and joining Union armies, to think about abolitionists also joining those armies. In other words, to think of the United States as people engaged, at least since the beginning of the Civil War, in a struggle against supremacy and hierarchy. A postcolonial people.
What are the 21st century implications of that? The idea of post-colonial constitutionalism is perhaps most easily described in reference to South Africa and South Africa's Supreme Judicial Court. Lawrence Ackerman who once sat as a *142 justice for that court has explained that respect for human dignity--I want to repeat that, respect for human dignity--informs and enriches the proper interpretation of South Africa's constitution. And he made clear that dignity is intrinsic and inalienable to every human being. Remember and responding to the indignities that Apartheid imposed on Black and brown South Africans. South Africa's constitution explicitly establishes, and its Supreme Judicial Court consciously attempts to enforce, principals of equality and human entitlement to concern and respect. In the South African case, challenging laws that criminalize same sex love making, the Supreme Judicial Court noted that the experience of subordination, of personal subordination above all, lies behind the vision of equality. The court was required by precedent to examine the impact of discrimination on members of the affected group, and the court went on to examine in detail the indignities that were imposed upon sexual minorities as a result of the laws that were being challenged, and then to interpret South Africa's constitutional guarantees of equality, respect, and non-discrimination to require invalidation of those laws.
I've written in the past about the difference between the South African court's treatment of that issue and the treatment it received at the hands of the United States Supreme Court in Bowers v. Hardwick and even in Lawrence v. Texas. I argued that when the Supreme Court of the United States, that if the Supreme Court of the United States would get over its denial of our history of slavery, war, and reconstruction, it might understand our reconstructed constitution as something with a guarantee of human freedom, with a new guarantee of citizenship, with an assurance that citizenship carries privileges and immunities, with newly encompassing protections for everyone, citizen or not, to life and liberty, I'm not going to talk here about property. Much belated guarantee of equal protection of the laws. This constitution should be understood as a constitution that mandates resistance to supremacist ways. Should it do so, it would be like the South African Supreme Court, able to interpret the constitution from a position of empathy with the experience of subordination. I speak of this kind of constitutionalism--some call it reactive, some call it post-colonial--with new inspiration of, just about a year ago, a little less than a year ago.
The reason I'm newly inspired is not so much that things are different but that I'm newly aware of things, I have to tell you. But the new inspiration for me is the unanimous decision of the highest court of India in the case in which it invalidated what the honorable justice Dr. D.Y. Chandrachud described as a colonial law that made it criminal, even for consenting adults of the same gender, to find fulfillment in love. The justice said this case involves much more than merely decriminalizing certain conduct which has been prescribed by colonial law. The case is about an inspiration to realize constitutional rights. It is about a right which every human being has to live with dignity, it is about enabling these citizens to realize the worth of equal citizenship. Above all, our decision will speak to the transformative power of the constitution, for it is in the transformation of society that the constitution seeks to assure the values of a just, humane, and compassionate existence for all of her citizens. To quote the justice again, “The goal was to transform a *143 medieval, hierarchical society into a modern, egalitarian democracy.”
What has this got to do with the child welfare system? I think you can guess. The autonomy and integrity of minority families in the United States child welfare systems depend upon deeply contested principles that have explicitly to do with liberty and are grounded in conceptions of human dignity and human right. Unlike the constitutions of South Africa and India, and many other nations that see themselves as post-colonial, indeed, unlike the overwhelming majority of nation states on this planet, we have no constitutional statement of fundamental human rights. Our Bill of Rights is there, but it's a statement of protections against the federal government only. How and whether it protects against state power, or against citizen suppression, is highly contested. We have the Bill of Rights combined with a doctrine of incorporation, a doctrine that says that some but not all of the rights conferred in the Bill of Rights were or should be incorporated into the Fourteenth Amendment, and be binding on both state and national governments, and we have the language of the reconstruction amendments themselves, the Thirteenth, Fourteenth, and Fifteenth. And we have the guarantee of a republican form of government, but I put that aside for purposes of this talk. Reliance on a partially incorporated Bill of Rights has limitations, because the language of the Bill of Rights fails to capture many rights that seem fundamental to most of us and to most of the world.
There is no explicit right of political representation, or education, or public accommodation, or bodily integrity, or family, or personal integrity. There is no explicit right of equal protection. That leaves us with the language of the reconstruction amendments, which can seem promising. The Thirteenth Amendment promises freedom, in that it forbids subordination of the human will. The Fourteenth confers citizenship with all its privileges and immunities, it guarantees to all the equal protection of the law, and it protects against denials of life, liberty, and yes, property, without due process of law. The Fifteenth suggests but does not assure a right of representation. In part, because of the Supreme Court's early and outrageously narrow interpretation of the privileges and immunities clause, the so-called due process clause, which prohibits deprivations of life, liberty, and property without due process of law, has been commandeered as the vessel for carrying fundamental human rights. It is a poor vessel. But it has been made to serve. We call the vessel substantive due process, and it was built, for the most part, in the area of family and child welfare law. It carries the right of marriage, or family recognition, the right to procreate or choose not to procreate, and the right to keep and socialize one's children. We are in the midst of a constitutional crisis over this notion of substantive due process. For the judiciary is being flooded with judges who take a dim or narrow view of it. The contest is not binary, there are many ways of addressing the incorporation of human rights into constitutional language, but it's roughly fair to say that there are two camps. There are those who would interpret the law in terms of respect for human dignity, and in light of both histories that should never be repeated, and histories of which we are proud and traditions that should be continued. And there are those that would interpret the law *144 into terms of the status quo. Those who champion interpretation in terms of the status quo cling to the principle announced in the 1997 Glucksberg case that fundamental rights are only those rights narrowly defined that have been recognized as part of the nation's history and tradition.
The history and tradition camp is gaining ground. Looking only at the top of the federal judiciary, we see Justice Roberts, who holds up Dred Scott v. Sanford as the origin of substantive due process, associating it with the Lochner Era, invalidation of the Louisiana Purchase and protection of the right to claim fellow human beings as property. Against this discrediting backdrop, he insists that adherence to, but not lessons from, history and tradition should be the lodestar for recognition of human rights. Justice Thomas argues that constitutional liberty is nothing more than freedom from physical restraint. And he has been a defender of Glucksberg's history and tradition test. Justice Alito emphasizes the importance of reliance on history and tradition and bemoans the fact that the Obergefell case may have overruled the Glucksberg's test. Justice Gorsuch's views are less clear. Off the bench, he has expressed support for incorporating respect for human dignity into our constitutional understanding. And he has, to be fair, questioned reliance on or exclusive reliance on history and tradition, but he was quick to pen an alarmingly stingy interpretation of Obergefell in one of his first opinions on the Supreme Court. And his comments about substantive due process in opinions on the circuit level have been notably guarded. Justice Kavanaugh said in his confirmation hearings that all roads lead to the Glucksberg test as the test the Supreme Court has settled on as proper for determining the scope of individual liberty. And he claimed that even a first-year law student could see that Glucksberg is inconsistent with Roe v. Wade, and with cases that upheld Roe v. Wade.
These men, and they all are men, stand as a majority that could easily limit constitutional liberty to the kinds of liberty that can be protected by allegiance to history and tradition, narrowly defined. This limitation would protect sexist, hetero-normative, and white supremacist practices against constitutional attack. It would make it harder for the family defense bar to bring to light the perspectives of parents who are judged harshly, merely because they look different or think sound and behave differently. It would make it harder for the family defense bar to even sustain itself. We've talked about the right to counsel. More broadly, it would normalize, not only in law, but also in policy and in practice, the paternalism, dare I say the patriarchy, that leads well-meaning advocates for children to distrust and disrupt rather than support viable families. That's it.
