In May 2022, a video depicting a 25-year-old man in Hyderabad being publicly murdered by his wife’s family members in retaliation for the couple’s interfaith relationship went viral on social media in India. In March 2023, a similarly shocking incident made headlines: In the southern state of Tamil Nadu, a man of the Nadar caste had killed his 27-year-old son and injured his daughter-in-law out of disapproval for his son marrying her, a woman of Scheduled Caste, often known as Dalits.

Beyond these two particularly gory cases, there are innumerable others in which individuals who have chosen partners across religious and caste boundaries have been harassed, humiliated, excommunicated, and murdered. A recent report by the Dalit Human Rights Defenders Network showed that in cases of intercaste marriages, violence is commonly perpetuated by powerful caste groups toward the marginalized Scheduled Castes and Other Backward Classes—official terminology employed by the Indian government and used commonly.

In a society that remains deeply divided along caste and religious lines, the stakes are high for young men and women in India who dare to transgress the socially-defined boundaries of love and family alliance. While Indian law gives all citizens the right to choose their partner, in practice, state actors often play a violent role in upholding conservative social norms. Caste, homophobia, patriarchy, religious bigotry, and state norms all nourish one another and accentuate the danger to the lives of non-normative couples.

Caste is a hierarchical system in which individuals are assigned an identity based on the social group into which they are born, and each caste group oppresses those below them while being oppressed by those above them. The caste location of an individual affects almost every aspect of their life, from their friendships to their educational opportunities, their job prospects to their voting behavior. The system operates through both force and consent, and Hindu religious scriptures support it.

Castes maintain themselves through the principle of endogamy, in which people belonging to a group are restricted in terms of their choice of partner to others from the same group. Any love or marital alliance that defies this boundary is seen as transgressing the institution. Historically, some forms of intercaste marriages have been dealt with more stringently than others. Hypergamy—marriage between a man of “higher” caste and woman of “lower” caste—has remained relatively acceptable, at least in India’s rural agrarian regions. This has never been the case with hypogamy—marriage between a man of a “lower” caste and woman of an “upper” caste—which is seen as a pollution of the bloodline and social standing.

While religion is not always birth-based in the same way as caste, discouraging social reproduction outside one’s religion is likewise a quintessential mechanism through which religions maintain their boundaries. Desiring the “other,” falling in love with them and marrying them has never been a regular feature of social life in India, and the idea of it has always been a cause of distress and animosity among caste and religious groups.

At a basic level, then, acts of violence against intercaste and inter-religious couples stems from anxiety within social groups about losing control over women’s sexual and romantic choices.

The Indian state condones and even facilitates the violence against couples who cross these socially-sanctioned lines. Legally, this shouldn’t be the case. When India gained independence and drafted its constitution in the 1940s, it established citizens’ right to choose partners beyond caste and religious boundaries. In 1948, the Hindu Code Bill enshrined for Hindu women the rights of divorce and property and the right to marry a partner of her choice. Subsequently, the Special Marriage Act (1954) and the Hindu Marriage Act (1955) were passed to realize these rights. Several state-sponsored programs have offered financial support to socially transgressive marital unions, and in some Indian states, courts have ordered the creation of shelters where vulnerable couples can seek police protection from angry relatives and community or religious groups.

Yet in practice, the state does not guarantee these rights. The bureaucratic process required to take advantage of the Special Marriage Act is onerous. One male partner of an interfaith couple told me that the process was so difficult that it seemed clearly designed to discourage inter-religious marriages. “We [have been] making rounds from one government office to another for months now,” he said. “Every time, they come up with a new loophole in our documents. This time, when nothing was left, they made an excuse out of the pixel size of our photographs.”

Another way that the state creates barriers to these relationships is through policing. In order to escape from the hostility of family members and others, couples often choose to elope and run away to seek state protection elsewhere. But a 2003 report by the People’s Union for Democratic Rights argued that more often than not, the state institutions charged with providing protection in such situations—particularly the police—side with the families of the eloped women. In some cases, state actors help families forge false cases against the couple, or bring couples out from hiding and hand them over to their families. The patriarchal ideology of “honor” and its “loss” holds sway over all social groups and compels members of the police, bureaucracy, and courts to have sympathy for the women’s parents and relatives.

Why does the state play this regressive role? India’s state machinery is predominantly represented by people from “upper” caste groups. The allegiance of the people sitting at the helm of power and running state institutions lies more towards their social identities, in other words, their caste and religion, rather than in favor of fair and equal rights.

Addressing these cultural and bureaucratic barriers is becoming all the more important as India faces a new political struggle: the nascent LGBTQIA+ movement’s efforts to seek recognition of same-sex marriage. In September 2018, the Supreme Court of India scrapped Section 377 of the colonial-era penal code, which criminalized homosexuality; a historic moment for Indians outside the country’s heteronormative social and legal orders. Now, the LGBTQIA+ movement has begun to seek the recognition of same-sex marriages through petitions to the country’s Supreme Court based on the Special Marriage Act. Yet even if those petitions are successful, same-sex couples might face similar obstacles to realizing their right to a relationship with the partner of their choice as current intercaste and interfaith couples have encountered.

To make life more viable for all, India’s state needs to address these structural barriers. The state needs to improve the process of registering a marriage under the Special Marriage Act, and to sensitize its bureaucratic agents—in particular, the Registrar of Marriages and the police. Couples who ask for police protection citing danger to their lives should be protected immediately, irrespective of whether they have obtained a marriage certificate or not. Protecting basic life choices of its citizens can be a small yet important litmus test for India’s democracy.

The post When ‘Honor’—and Bureaucracy—Stand in the Way of Marriage appeared first on Zócalo Public Square.

In 2016, the leaders of several street vendor organizations from the Mexico City neighborhood of Tepito met with local officials with a request: They wanted the capital city’s new constitution to codify their right to sell in public spaces. Street vendors like them, they argued, were an essential sector of the urban economy. In exchange for their legalization, they offered to submit to regulation and taxation.

The image of vendors gathered around a table with officials is not one most would associate with Tepito, best known as Mexico City’s barrio bravo, its fiercest neighborhood. Located only a few blocks north of the city’s historic center, Tepito is synonymous with lawlessness and illicit enterprise. Beneath the bright plastic tarps that line its streets, one can buy just about anything, from pirated DVDs to Swiss watches to exotic animals. It is also the home base of the drug-trafficking and extortion racket La Unión Tepito and its rival La Fuerza Anti-Unión, whose turf wars drove a recent surge in homicides.

Tepiteños, as the area’s residents are known, have long celebrated their autonomy. They have resisted efforts to tame the area through policing or gentrification by any means necessary. The mantra “Tepito exists because it resists” is graffitied on walls and repeated by residents. Yet Tepito perseveres not from its isolation and defensiveness, but from its powerful connections. For centuries, vendors who have labored in the gray areas of the law have forged relationships with government officials to sustain their trades. Informal markets like Tepito persist with the help of state actors—not in spite of them.

The association between Tepito and illicit commerce dates to the early 20th century, when a second-hand market called the Baratillo (derived from barato, or cheap) moved to the area. The Baratillo was a colonial-era institution originally located in the Plaza Mayor—now Zócalo—that offered clothing, tools, furniture, and books. New, used, and stolen items mixed indiscriminately with one another, blurring the lines between legality and criminality. Considering the market an eyesore and a threat to public order, colonial and national officials pushed it out of the city center. In 1902, the Baratillo settled for good in Tepito, then a poor, outlying neighborhood. It flourished. By mid-century, the market and its neighborhood had become synonymous, known collectively as Tepito.

As Mexico’s economy evolved, so too did the goods on offer in Tepito. At the beginning of the 20th century, signs of the country’s nascent industrialization—telegraph wire, pharmaceutical products, scientific instruments—began appearing alongside the piles of scrap metal and old furniture. In the 1930s, shoppers could find stolen radios, as well as marijuana. During the 1970s and ’80s, vendors began specializing in fayuca, the colloquial term for contraband goods that evaded the high tariffs and import restrictions of that era. Tepito put TVs, stereos, and sneakers within reach of Mexico City’s middle and working classes. Toward the end of the century, as Mexico opened its economy to the world, piratería—pirated, or knock-off goods—began to line Tepito’s alleys. Korean and Chinese merchants gained a particular foothold.

The latest evolution in this long retail trade, narcotrafficking, has become central to Tepito’s economy since the 1990s. The organization La Unión Tepito began as a protection racket, extracting payments from local merchants in exchange for promises of security. As drug consumption in and around Mexico City soared, La Unión turned to supplying that market. But even as La Unión worked to corner the city’s retail drug trade, it remained steeped in Tepito’s core business of piratería. By 2020, the organization dominated the market for pirated goods in the capital. It even replaced Tepito’s famed “Marco Polos,” who travel to China to procure merchandise, with its own members.

Just as drugs are simply the latest iteration of merchandise to be sold in Tepito, its vendors’ political strategies—such as the 2016 rendezvous with officials— from a long tradition of activism stretching back to the baratilleros of the 19th and early 20th centuries. As early as the 1840s, vendors published letters in Mexico’s leading newspapers defending the social and economic benefits of the Baratillo. They lobbied elected officials to prevent them from disbanding the market, meeting with city councilmen in their homes and showing up at meetings. The connections between vendors and the city’s municipal government, which relied on the rents vendors paid to sell in public streets and plazas, ran especially deep. After the Mexican Revolution and the ratification of the 1917 Constitution, vendors in Tepito and elsewhere organized in unions, establishing close ties with the ruling Institutional Revolutionary Party (PRI).

Today, Tepito’s merchants belong to dozens of vendor organizations, each with its own political links. Vendors pay daily fees to the organizations’ leaders, who negotiate with Mexico City’s borough governments for access to street and sidewalk space. Those leaders also advocate for larger reforms, such as the clause in the 2016 city constitution codifying vendors’ right to earn a living by selling their wares in public spaces.

Criminal groups like La Unión Tepito have their own political strategies, which depend on incorporating police and government officials into their networks, or, less commonly, getting their associates appointed or elected to positions in local government. While some agents of the state end up on the payrolls of organized crime, others, especially those in elected office, benefit from less obviously corrupt alliances. The shadow economy is big business, and Tepito’s outsized importance gives its vendors and residents significant political clout.

No modern-day figure represents the thick connections between Tepito and the political arena than Sandra Cuevas, head of government of Mexico City’s central Cuauhtémoc borough. Raised in Tepito, where she worked in her parents’ appliance business, her governing style bears much in common with Tepito’s own personality. Deemed “ungovernable” by the newspaper El País, Cuevas has reveled in her defiance of just about everybody throughout her political career. She sparred continuously with former Mexico City mayor and now presidential candidate Claudia Sheinbaum. She has refused to back down from unpopular decisions, such as whitewashing the hand-painted rótulos on vendors’ kiosks that color Mexico City’s streetscapes and ordering some of the city’s beloved street art painted over—including murals in Tepito.

Cuevas rose to one of the highest elected offices in Mexico City with support from Tepito’s vendor organizations. She promised that she would stop the extortions from criminal groups that saddle them with payments of up to 250 pesos per day—though people claiming to act on her behalf and members of her own family have been accused of demanding such payments themselves. There are also rumors, which Cuevas denies, that she has links to La Unión.

The ascent of both Cuevas and La Unión attest to a key aspect of Tepito’s enduring power: the symbiosis between extralegal commerce, in all its forms, and the Mexican state. Though Tepito may be shorthand for lawlessness, its merchants and residents work with the government as much as against it. Contemporary vendors, like the baratilleros before them, leverage the economic value of their trades to build alliances that protect their interests. In Tepito, resistance includes the ability to straddle Mexico’s underground and official worlds, and to exploit the many linkages between them.

The post Why Mexico City’s Tepito ‘Exists Because It Resists’ appeared first on Zócalo Public Square.

Los Angeles Times editorial writer Carla Hall, who moderated the discussion, kicked it off with the words of University of Michigan legal scholar Catharine A. MacKinnon, who argues in The Free Speech Century that the First Amendment has increasingly moved from “a defense of the powerless” to “a weapon of the powerful.”

“What do you make of that?” Hall asked the panelists.

“The First Amendment protects the freedom of speech,” said UCLA School of Law professor Eugene Volokh. “It doesn’t protect the freedom of speech for the powerless. It doesn’t protect the freedom of speech for this group or that group. It protects the freedom of speech. We shouldn’t be surprised that anybody who speaks would make claims under the freedom of speech, and that the Supreme Court would protect those claims in many situations and reject them in some situations.”

But what, asked Hall, about Citizens United v. FEC, the court’s 2010 ruling that limiting political spending by corporations and individuals was a First Amendment violation?

The First Amendment cannot protect everybody except corporations and unions, Volokh said. Nodding to Hall’s employer, the Los Angeles Times, he added, “If you’re trying to suppress the speech of corporations, you’ll be suppressing the speech of newspapers and religious groups and others as well.”

Attorney Jean-Paul Jassy, who has litigated First Amendment cases in the United States Supreme Court and the California Supreme Court, agreed that the history around free speech can be as unsavory as it is triumphant. But as someone who regularly represents media companies, reporters, and nonprofits, he takes a position that freedom of speech is for everybody, even the company that owns the National Inquirer. In a case claiming the Inquirer used a “catch-and-kill” strategy to bury a story, Jassy defended the company. Citing Miami Herald Publishing Company v. Tornillo, Jassy made the argument companies can decide what they publish or do not publish. “This happens all the time, and if we start getting into that system where we examine what a newspaper or TV station publishes or puts on the air, it’s very dangerous,” said Jassy.

Turning to USC legal scholar Jody David Armour, Hall asked for his thoughts on the role of protest in free speech, citing a recent Los Angeles mayoral debate at Loyola Marymount University that activists disrupted.

They have the right to protest, said Armour, and just like in a private venue, security has the right to remove them. “Civil disobedience comes with a price tag,” he said. It’s a risk he’s taken himself, and one that can lead to change, he noted.

Battinto L. Batts Jr., dean of the ASU Cronkite School, agreed: “This thing we call democracy that we pine for is not a pretty process. It’s not a fine dining event; it’s a food fight sometimes.”

“Who are we to judge about whether that was a successful event or not because it wasn’t orderly in the fashion that we thought it would be going in?” Batts continued. “The protestors would say it was a successful event on their behalf because their perspectives were voiced. We can’t say, well, this group gets to speak, and when they get to speak, and how they get to speak, and they get to do it uncontested. That’s not freedom of speech. That’s control.”

To shut down protest speech would mean shutting down movements, said Armour. “I know there wouldn’t be a Black Lives [Matter] movement without robust freedom of speech.” After the killings of Mike Brown and Trayvon Martin, he saw Black Twitter and other Black social media take off. What if they had been shut down? “You had the movement of our generation. The generational upheaval a couple years ago was made possible by robust protection of First Amendment rights,” he said.

Before the night closed, the panelists also spoke about hot-button issues in the news today, from Sarah Palin’s libel lawsuit against The New York Times, which they don’t think the Supreme Court will hear, to Florida’s “Don’t Say Gay” bill that aims to prohibit “classroom discussion about sexual orientation or gender identity” in the state’s primary schools.

“If we’re talking about public schools, those are parts of the government,” said Volokh. Because they are agencies of the state, “it’s not a First Amendment violation because it’s all about state telling state employees what they can say as part of their state jobs.” However, were the state to tell that to private schools, that would be a clear First Amendment violation.

And, if you were wondering about what the famous free speech analogy about “yelling fire in a crowded theater” is all about, the panelists answered that as well before they wrapped. “Somebody told me that First Amendment lawyers and professor who teach it hate that phrase,” said Hall, who brought the question up.

Yes, said Jassy, in part because omitting the word “falsely” changes the meaning of the entire thing. But, there’s another subtlety to the saying, which originated in 1919 as well, he said: “It’s kind of an outdated catch phrase.” The underlying case that justice Oliver Wendell Holmes was writing it for, U.S. v. Schenck, was overturned in favor of a more modern test for immediate harm in the 1969 case Brandenberg v. Ohio. There the Supreme Court determined inflammatory speech is protected under the First Amendment unless that speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

The post In America Talk Isn’t Cheap, It’s Free appeared first on Zócalo Public Square.

From years of obsessively watching Law & Order, I had assumed my questioning would focus on the titillations mass media devours—which was how my name was associated with the crime in the first place. My involvement with the case did not begin January 31, 2015 when the 42-year-old Croatian historian William Klinger was shot twice in an Astoria park in broad daylight and left to die. After he was declared dead in a New York City emergency room, no one had informed me because I was irrelevant to his life. Three weeks later, however, I got emails and calls because the murderer claimed I was part of why Klinger had died.

Police determined that Klinger had been in the park alone with a friend, 49-year-old Alexander Bonich. They also discovered that Klinger had wired $85,000 to Bonich in order to purchase an apartment in Astoria. Anyone who knows anything about New York real estate can smell a rat in this story. An apartment in Astoria costs about $700,000, if you’re very lucky. In New York City, real estate fraud is a believable motive for killing. Bonich was arrested posthaste.

To counter the murder charge, Bonich insisted he shot Klinger out of self-defense. As Bonich told police and then a New York Times journalist, on the day of his death Klinger behaved strangely. He seemed unhinged, filled with emotional rage triggered by the fact that he had deserted his family in Europe “to meet a woman named Dominique.” With Klinger coming at him, Bonich insisted he had shot Klinger to forestall Klinger doing the same to him.

There are very few people connected with Croatian academia who share my first name. Within minutes of the New York Times article giving Bonich’s side of the story going live, a friend wrote me an email to alert me. Within an hour, my inbox was filled with queries from journalists and police. The idea that Klinger’s grieving wife and children would have to suffer the killer’s lies cut me to the quick and I responded by contacting anyone I could to set the record straight.

The New York Times immediately erased my name from the article they had published online. I gave journalists, police, and lawyers full access to all my communications with Klinger. At some point, the murderer had also asserted that Klinger and I had had a rendezvous in New York in the days prior to the shooting. To disprove this, it took just a few minutes to supply travel itineraries and credit card statements showing how I was nowhere near New York City at the time.

At Bonich’s trial three years later, I assumed I was being called to the stand to disprove assertions about Klinger’s relationship to me. Imagine my surprise, then, when two minutes into my deposition the prosecutor asked me, “What are the archives?”

In my professional life as a history professor at an elite research university, “what are the archives?” is a question that gets posed regularly, often by professors encouraging students to think about how history “gets made.” When the prosecutor asked me this question, it was in response to my explanation of how I had first met Klinger. I had said “I met him in the archives in Rijeka [Croatia],” assuming this was straightforward. When asked to elaborate, I still assumed that the question was not about the things I usually talk about when discussing archives, but about the nature of my relationship to the deceased.

Was it possible that the prosecutor feared the jury imagined we had met at some nightclub called “The Archives”? Maybe those Queens residents were picturing us drinking cocktails at a bar pretentiously decorated with old-school card catalogs, green banker’s lamps, and anachronistic maps? So, instead of answering what archives were in a professional sense, I focused on how unsexy—how all work, 8 a.m.-to-2 p.m. no fun—they are.

Here is where it became clear that all my assumptions about why I was in that courtroom were wrong. As I was explaining how archivists regularly introduce scholars to each other in the reading room, the defense attorney called out: “Judge, I’m going to object to the witness being nonresponsive.” Though the judge overruled the objection, the effect of the defense attorney’s intervention was significant.

From then on, my job in the almost 80 questions that followed was not to disabuse the court of ideas of adulterous encounters but instead to explain what this strange profession of “historian” was, and what role it played in bringing Klinger into that Astoria park on the day he died.

I told the jury how Klinger had attended some of the most prestigious institutions in Europe, how he had published widely in several languages, and how he was generally considered the expert in his field, even though he could not find permanent, full-time employment anywhere. A long-time motto repeated ad nauseam in academia is “Publish or perish.” In essence, I was there to explain how this historian perished in our profession even though he had published, and how his professional disappointment set him up for associating with someone who would kill him for real.

When reading over the court transcripts, it is hard to remember that we were all sitting together in that room because a man had died. The questions were not about Klinger or his murderer. Instead, they focused on the intricacies of how difficult it is for a historian to make a living.

I explained how historians can’t get academic jobs through individual merits in the U.S. or Europe. You need networks. I talked about “markets,” the expectations of what CVs (the academic term for resumes) should look like, and how getting noticed by universities is dependent not just on productivity but also on references from people of great esteem. With every explanation I gave, another question came up. What is a postdoc? What is an editor? What is a letter of recommendation? How does anyone get paid?

The questions kept coming because the answers I was giving made no sense to how people imagined someone survived as a professional historian. Weren’t historians like artists or writers? Wasn’t their worth and position dependent on the quality of what they produced? Or maybe they were like journalists, paid per column or through working on producing publications? Or maybe historians were like teachers, their employment opportunities dependent on the degrees they had obtained?

I’m sure it was confusing when I told the lawyers, judge, and jury about how the writing and publishing process works. I said: “People don’t make money working for journals; you do it as a volunteer for the state of the field. There are no paying jobs.” Both the defense attorney and the prosecutor had been under the impression that Klinger’s arrival in the United States would solve his miserable professional status in Europe. My testimony underscored that it was far from the truth—but that Klinger didn’t know it, and that’s what made him vulnerable.

Though he had published much and the solidity of his research was undeniable, Klinger had not proven himself as a man who worked within structures. He had never taught in an American classroom. He had no portfolio of teaching evaluations. He had not participated in a research facility where interdisciplinary collaboration was emphasized. He had almost no links within the wider profession, meaning there were few who could vouch for him to those outside his relatively obscure specialty. This also meant he could not help future students procure positions.

Klinger did history like a starving artist might: he worked alone, he published in the easiest and quickest (rather than the most prestigious) journals, and he struggled to broaden his profile. His lack of networks was partly a result of the fact that no one in Italy or Croatia would give him a permanent position. But it was also partly because he was so passionate about the researching and writing that he didn’t prioritize the other stuff.

I had explained to Klinger “at the archives” and in emails what I had said in court: procuring permanent employment in the United States is a slow, networked, highly professionalized process that proves unsuccessful for most. I had told him explicitly that there is no way to just publish, come, and get a job. But Klinger ignored me and decided instead to believe a man who told him what he wanted to hear.

Apparently, Bonich promised Klinger all: not just an apartment but also a job at Hunter College in New York City based on his qualifications, with no application, interview, or letters of recommendation required. That is as inconceivable as the $85,000 price tag for an Astoria apartment. Nonetheless, Klinger wanted to believe. The murderer also told the court Klinger had deserted his family in part because I had arranged a position for him as a journal editor in Maryland, one which would pay enough for him to build a new life for himself.

This, too, was not just a lie; it was impossible.

It didn’t matter that Klinger and I barely knew each other. It didn’t matter that the journal the killer named did not exist. It also didn’t matter that history journals do not pay book review editors. The killer told those lies because he thought they were believable, because that’s how he thought the historical profession worked. Just like Klinger, Bonich did not realize that there are almost no historians in the world who can survive on their writing, their editorships, or their qualifications. Historians in the United States are paid for how they work within institutions. And getting into the institutions is a herculean feat only the most obstinate should try to undertake.

We’ll never know how many lies Bonich told Klinger before killing him. It pains me to imagine what must have been going through Klinger’s mind right before he was shot. According to statements from Klinger’s wife published later, he was supremely happy when he arrived in the United States and believed he had a professional future waiting for him, filled with open horizons. Did he find out before the shots were fired that this was not true?

For his sake, I hope he never found out. But I cannot say the same thing for the world surrounding me. All the imaginary ideas that the media and the public have about all the humanities professions need a reality check. People whose employment is based on their expertise in history, literature, art, languages, music, philosophy, religion, theater, ethnicity, gender, and sexuality do not live “outside” professional worlds. They are not narcissistic navel-gazers, or spoiled and leftist tweed-wearers who spout off elitist ideas and pursue whatever whims their interests take. They are also not hired based solely on their educational qualifications or their publications.

What historians and other humanists are expected to do within their places of employment are a mixture of several different specializations. They are supposed to research like forensic accountants, publish like writers, instruct like teachers, institution-build like well-connected editors, promote others like agents, and administer institutional bodies like practiced CEOs.

Even those who can do all these jobs simultaneously often can’t secure employment. According to 2019 surveys, only 19 percent of recent Ph.Ds. in history programs within the United States received the kind of job Klinger believed he would get in New York City. And a large number of the 80 percent who did not gain a permanent research-geared university position had a more balanced employment portfolio than Klinger could boast.

It’s been six years since Klinger died and three years since I testified about the historical profession at his murder trial. Since then, the world this 42-year-old Croatian historian tried to enter has become even tougher to crack. Now there are even fewer jobs while the breadth of the work required for this profession has only increased. Technological know-how is increasingly required for any applicant in this increasingly digital world. Sociological and psychological know-how are now musts in environments where students are exhibiting ever more the traumatic effects of our political and economic realities. Administrative skills are ever more sought after as educational institutions’ budgets get tighter. I imagine soon deans will require proof of the ability to fundraise for new hires.

At the termination of the murder trial, Bonich was sentenced to 25 years to life in prison. In her closing arguments, the prosecutor emphasized how Bonich’s crime was premeditated, one which weaponized an “abuse of the American dream” to catch, corner, and eliminate Klinger, his prey. The judge finished his sentencing saying “[I]t was as though you were writing a play. You set about and engaged in an elaborate scheme to convince Mr. Klinger that the yellow brick road from Croatia to America goes right through you.”

Both the prosecutor and the judge were right, but Bonich was not alone in abusing a dream or writing that play. We have, too. It’s time to give up the fantasies we have about what the profession of history is, so we can better appreciate what its practitioners do and better streamline how humanists might engage with society at large.

The post The Historian and the Murderer appeared first on Zócalo Public Square.

Besides, who needed modern distractions when the history was so thrilling? The story of treason—attempts to overthrow the government or to aid our enemies—is nothing less than the story of America itself. Our country was forged in the American Revolution by people willing to commit treason against Great Britain, and the Confederate cause in the Civil War was the largest-scale act of mass treason in our history. The individual characters are riveting, from Benedict Arnold and his sordid betrayal of West Point to the poet Ezra Pound, prosecuted for treason for broadcasting fascist propaganda from Mussolini’s Italy. The accused persons represent every segment of society, from a former vice president (Aaron Burr) to the local leader of a miners’ union prosecuted for treason against West Virginia in the 1920s.

The Revolutionary War officer Benedict Arnold was a traitor to the American cause who defected to the British Army in 1780. Here, Arnold is depicted providing plans to surrender West Point to the British to his friend British Major John André. André was later captured and hanged; Arnold got away. Courtesy of C.F. Blauvelt/Library of Congress.

For many years, I worked on the book that would become The Trials of Allegiance: Treason, Juries, and the American Revolution. I could proceed at a glacial George R.R. Martin-agonizing-over-The Winds of Winter pace because there was no obvious connection to current events. In 2015, a Zócalo Public Square essayist confidently proclaimed that “We’re living in what has to be the nation’s golden age of loyalty.” The essay was headlined, “Is Treason now Just a Punch Line?”

And then that world was turned upside down with the political rise of Donald J. Trump. The first phone call from a reporter came in July 2016, after Trump publicly encouraged Russia to find Hillary Clinton’s emails. The question—which I would quickly become used to—was: “Is this treason?” And the answer (which I also quickly became used to, given the Constitution’s narrow definition of the crime), was no. But the calls kept coming, becoming a flood after Trump’s inauguration, as antennae perked up at further revelations about Michael Flynn, Russian interference in the election, the Mueller investigation, and the infamous meeting at Trump Tower.

Around this time, my literary agent asked me to write a second book about treason, one that would bring the story up to the present day, and that would lay out the byzantine law of treason in a manner accessible to interested citizens. I wasn’t sure I was ready to take on another book so quickly, but as misguided treason charges and countercharges swirled through our national debate, I came to realize that we were in a unique historical moment. If we were going to be arguing about American treason law so much, we should at least have a better understanding of what it is—and maybe even more importantly, what it is not.

All nations have treason laws to deal with the problem of disloyalty. But if those laws aren’t carefully circumscribed, they can easily become a tool of domestic oppression—a tendency the framers of the U.S. Constitution recognized all too well. In the tumultuous years prior to the adoption of the Declaration of Independence, British authorities had threatened to prosecute American tax protestors for high treason in England, far from the protections of a local jury. Prominent attorney James Wilson, who represented Pennsylvania at the Constitutional Convention, explained the problem this way at the Pennsylvania ratifying convention: “Crimes against the state! and against the officers of the state! History informs us that more wrong may be done on this subject than on any other whatsoever.” Wilson and the other framers of our Constitution accordingly chose to define the crime directly in the document itself—and to define it narrowly. Article III, Section 3 restricts the offense to “levying war against the United States” or “adhering to their enemies, giving them aid and comfort.” Although these phrases pose many interpretive difficulties, they clearly prevent treason prosecutions for offenses such as criticizing the government or organizing a political party.

There have been few actual treason prosecutions under the U.S. Constitution, and only one person, Hipolito Salazar, has been executed for treason under federal authority (a truly bizarre case from the Mexican-American War—Salazar was a Mexican citizen, tried and convicted on Mexican soil). A handful of American presidents have been traitors, though none during their time in office—and none were prosecuted. Our first five presidents all committed treason against Great Britain during the Revolutionary War, well before the adoption of the Constitution. During the Civil War, former president John Tyler committed treason when he supported military actions against the United States in his role as a member of the Virginia Secession Convention. Curiously, the older crime of treason against individual states was not definitively eliminated by the Constitution and states have occasionally brought charges, most notably the 1859 prosecution of John Brown by the state of Virginia for leading the raid on Harpers Ferry.

Other than the distinctive case of the secessionists during the American Civil War, it’s rare for disloyalty to rise to the level of treason as defined in the Constitution. So why is it that treason—or “treason”—is now so regularly discussed? There are two simple reasons: what Donald Trump does, and what Donald Trump says.

First, for many people, Trump’s conduct raises considerable suspicions about his underlying loyalty. Trump consistently seems to place Russia’s interests ahead of America’s, whether by ignoring or condoning blatant Russian misbehavior or by kowtowing to Vladimir Putin. Indeed, Trump’s consistent failure to publicly criticize Putin is perhaps the most bewildering aspect of his presidency. Many Americans fear the worst, pointing to news reports suggesting that Trump’s tangled financial dealings involve significant debts to Russian sources. It is not irrational to suspect that Russia may have all kinds of personal or financial kompromat on him.

In a colloquial sense, Trump’s conduct—far beyond the bounds of normal presidential behavior—may have betrayed the country. But nothing Trump has done (or is alleged to have done) formally rises to the level of treason as a matter of criminal law. Foreign nations like Russia are “enemies” only if we are in a state of open war with them. Despite all the covert back and forth with Russia, we are simply not in a state of open war. For similar reasons, Americans who spied for the Soviet Union, like the Rosenbergs or Aldrich Ames, were prosecuted for espionage (which doesn’t require a state of open war), not treason.

Still: “it’s not technically treason” is a strange thing to have to say about an American president.

Second, unlike any of his predecessors, Trump uses his presidential podium to routinely accuse other Americans of treason, targeting congressional Democrats, anonymous critics, James Comey, Adam Schiff, and, perhaps most notoriously, his predecessor, President Barack Obama.  In a Tweet (naturally), Trump claimed that the “ObamaBiden Administration” had committed “treason” by spying on his 2016 presidential campaign. These accusations lack even the flimsiest basis in fact or law—but unfortunately many of Trump’s supporters take him at his word. They are convinced that actual traitors permeate the Democratic party and the federal government.

We have become so numb to the excesses of Trump’s rhetoric that it is easy to forget just how extraordinary this is. Treason is a capital offense and routinely described as the highest crime in American law, worse even than murder. Accusing a fellow American of treason is (or at least used to be) one of the most significant utterances a president could possibly make. But now it often doesn’t even make the news.

Since the current excitement over treason and disloyalty is so heavily tied to Trump’s distinctive behavior and rhetoric, it will likely dissipate significantly when someone else occupies the Oval Office. At the same time, even a defeated or termed-out Trump may continue making outrageous claims from the sidelines, thus risking continued pollution of our political rhetoric.

American treason law is a rich and rewarding field, one that is absolutely central to the larger story of America itself. On some level, I suppose I should be pleased that the subject into which I have invested so many years of research is now attracting a much wider audience. But, as fascinating and surreal as it is to be queried regularly by reporters about whether the president of the United States has committed treason, I’d much prefer to live in a world where that question doesn’t arise.

The post Why ‘Treason’ Usually Isn’t Treason appeared first on Zócalo Public Square.

But the same scholars warned that the court’s conservative majority, reinforced by the recent appointment of Justice Brett Kavanaugh, also could grant greater power to corporations and curtail affirmative action, reproductive rights, and protections for immigrants and LGBT people.

The scholars—law professors with expertise in areas from guns to government regulation to education—were addressing the central question of the event, “How Will the New Supreme Court Change America?” at the National Center for the Preservation of Democracy in downtown Los Angeles. But they offered their predictions with caution and caveats, with one panelist, UCLA Law School’s Adam Winkler, noting that law professors have poor records of prognostication.

The moderator, The Wall Street Journal Supreme Court correspondent Jess Bravin, noted in his opening that the court is unique in that “it’s only answerable to itself.” And so despite the justices’ general respect for precedent, the court can break new ground. Bravin pressed the panelists on where they think that ground might lie.

Beth Colgan, a UCLA School of Law professor who teaches and researches criminal procedure and juvenile justice, pointed to the new questions technology is raising about privacy. Recent cases, including one that limited law enforcement’s use of cell phone data, and some words from the relatively new Justice Neil Gorsuch, suggest that the court is skeptical of the power that technology gives the police to gather information on our lives.

She said future cases could look at automatic license plate readers used by police and examine surveillance tactics in Baltimore, where planes fly over the city to record and store everything taking place, so that police can use it later. “I always tell my students that I fear our future robot overlords, but I think the court does too,” she said.

Winkler of UCLA School of Law, a specialist in constitutional law who has written about gun rights and corporate rights, said the newer justices—Gorsuch and Kavanaugh—seem likely to curtail the ability of administrative agencies in the government to regulate corporations. He also asked whether the logic of a recent decision, in Janus v. AFSCME, which prohibited public employee unions from collecting fees from non-union employees they represent, might be applied to challenge union prerogatives in private employment.

“If that’s the case, it’s hard to see how unions can survive even in the private workplace,” he said.

When Bravin pressed for other areas where the court could make big shifts, Winkler cited reproductive rights, which he argued have already been reduced by state laws that have forced the closing of clinics that provided abortions.

“The only question is whether the court will overturn Roe v. Wade,” Winkler said. “And I think undoubtedly that it will,” he added, to gasps from some audience members.

Justin Driver, a University of Chicago Law School professor who clerked for Justice Stephen Breyer and former Justice Sandra Day O’Connor, said he too saw change coming in reproductive rights. He noted that some justices seemed to be avoiding the mention of important abortions rights precedents in their decisions, a sign that they may be preparing to overturn those precedents.

Driver, author of the new book The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, also predicted that race-conscious college admissions and other forms of affirmative action “may be on their way out.” And he expressed concern that if states pass laws taking away public benefits from undocumented immigrants—including the right to attend public school—the current court might back the states.

Driver pointedly challenged the conventional wisdom that the U.S. Supreme Court tends to reflect the views of American society at large. He said that far more important than public opinion are the views of particular people on the Supreme Court. He suggested that if same-sex couples had not fought for marriage rights while a sympathetic Justice Anthony Kennedy was on the court—and instead waited for the current court—those rights might have not been vindicated by the Supreme Court in a 5-4 decision in 2015.

Indeed, Driver and Winkler both expressed concern that the current court’s inclination to protect the religious rights of businesses to refuse to serve LGBT customers—as in a recent case in which the court sided with a Colorado cake shop that wouldn’t bake a wedding cake for a gay couple—might portend more decisions unfavorable to gay rights. Driver said that, while Republican-appointed justices of previous generations sometimes drifted left while on the court, that seems less likely to happen with the younger GOP-appointed justices, who all had worked in the executive branch under Republican presidents.

Colgan, though, pointed out that, while the U.S. Supreme Court “sets a floor” for the law, state supreme courts and state legislatures have the ability to push forward into new legal frontiers. She expected states might be willing to lead in reform in the criminal justice arena that would go beyond what the U.S. Supreme Court could do. “Oftentimes, we put the Supreme Court on a pedestal, but it’s not the only place where we get to change the law,” she said.

During the question-and-answer session, one audience member said she found the discussion “incredibly depressing” and asked, when it comes to the Supreme Court, “what do we have to look forward to?”

Driver answered that he saw potential for progress if liberals and libertarians find common ground in advancing the law in creative ways. He thought they could succeed, for instance, in eliminating corporal punishment in schools at last. Colgan said she thought the court might rule in ways that would protect Americans against excessive fines and financial penalties—as when police seize the cars of defendants accused of low-level drug dealing.

Bravin, the moderator and veteran Supreme Court reporter, closed by urging people to go to the Supreme Court web site and listen to audio of the oral arguments. He said that while Americans are not terribly impressed by the oratory and thinking they see in Congress, Supreme Court justices do handle difficult questions thoughtfully and seriously.

“I’ve found that almost anyone who actually comes to watch a Supreme Court argument walks away having their expectations exceeded,” said Bravin, adding that people may be impressed even when they “listen to the justices that you expect to disagree with.”

The post The Supreme Court Gets Ready to Remake America, But How? appeared first on Zócalo Public Square.

From the earliest days of the republic to the present, politicians have sought to limit the ability of non-whites to vote. What has changed is the nature of suppression—either the addition of regulations, or the deregulation of parts of the process—as well as the degree to which would-be vote suppressors reveal their intentions.

The American problem with voter suppression started with a void in the original Constitution, which did not include a right to vote. This omission allowed states to suppress the votes of non-whites by various means.

In the antebellum period, the pattern of suppression was deregulatory and explicit, as Americans pursued the ideal of a “white man’s republic.” States expanded the franchise for white males by eliminating property and tax-paying qualifications for voting, while at the same time explicitly excluding women, Native Americans, and African Americans.

In 1800, only five of 16 states mandated white-only voting. By 1860, 28 of 33 states, comprising about 97 percent of the nation’s free black population, had adopted such racially restrictive suffrage. In 1860, no state imposed property qualifications for voting and only a half-dozen had tax-paying requirements. As the winners in this new political order, white men shaped the nation’s laws and policies without regard to women or minorities.

This shift in voting rights did not occur without challenge. In Pennsylvania, in 1835, William Fogg, an African American whom election officials had turned away from the polls, filed America’s first voting rights lawsuit.

In the suit, Fogg v. Hobbs, he charged that election officials had violated the state’s color-blind constitution—“all men are born equally free and independent”—by barring him from voting just because he looked black. Fogg contended that he qualified as a legal voter under Article III, Section I of the Pennsylvania Constitution of 1790, which granted voting rights irrespective of race to “every freeman of the age of twenty-one years, having resided in the State two years next before the election, and within that time paid a State or county tax.”

Fogg won his case in a lower court, but the Pennsylvania Supreme Court upheld the state’s appeal in 1837 by writing black people out of American democracy. The court ignored the state constitution and found that “no coloured race was party to our social compact,” and that there was no basis on which “to raise this depressed race to the level of the white one.”

The court did hold out hope for future generations, albeit in a perverse way, by noting that a black man’s “blood, however, may become so diluted in successive descents to lose its distinctive character; and, then, both policy and justice require that previous disabilities should cease.”

This idea of excluding blacks from the “social compact” reemerged when Pennsylvania adopted a new constitution in a convention that began on May 2, 1837, and lasted until February of the following year. This 10-month deliberation took three times longer than the convention that drafted the nation’s constitution in Philadelphia in 1789, and its delegates played on the common prejudice that African Americans lacked the moral and mental fitness needed for suffrage. They charged that unscrupulous men of wealth would buy the black vote and corrupt elections with voter fraud. They raised the specter of blacks flooding into states not just to vote, but also to hold public office. A whites-only suffrage, they argued, would preserve the integrity, independence, and virtue of the vote.

Delegate Benjamin Martin, a Democrat from Philadelphia County, spoke for the majority at the Pennsylvania convention when he said, “It is altogether futile and useless to pursue the experiment of making the African and Indian equal to the white citizen.” Perhaps thinking about the Fogg suit, Martin continued that voting rights would ill-serve blacks, because an aroused public would turn them away from the polls, thus “holding out expectations to them which could never be realized.” He warned of attracting African Americans to the state. Look to Philadelphia, he said, where blacks congregate “from all the southern States, and have so corrupted each other, that they are now in a situation far worse than the bondage from which they have escaped. It is impossible to walk through Cedar ward, in a clear warm evening, for the black population.”

African Americans countered such claims and protested “white-only” suffrage by issuing “The Appeal of Forty Thousand Citizens Threatened with Disenfranchisement to the People of Pennsylvania.” The appeal asked why the new state constitution denied “that all men are born equally free by making political rights depend on the skin in which a man is born? Or to divide what our fathers bled to unite, to wit, TAXATION and REPRESENTATION.”

The appeal said that the freedom of all depended on the freedom of the least powerful and that “when you have taken from an individual his right to vote, you have made the government, in regard to him, a mere despotism, and you have taken a step toward making it a despotism for all.”

Such appeals proved unavailing in Pennsylvania and across America. Without a guarantee of the vote in the U.S. Constitution or any federal voting rights laws, the disenfranchised black people of Pennsylvania and other states had no recourse to any authority higher than their discriminatory state constitutions and hostile state courts.

This represented a serious retreat for the country. In the 18th century, African Americans who met other qualifications could vote in most states of the new republic. But by the mid-19th century, those suffrage rights had been lost.

The Civil War changed that. After the war, African American men regained the right to vote—only to lose those rights within decades, after Reconstruction. The Fifteenth Amendment did pass in 1870, but it did not explicitly grant voting rights to minorities, it only prohibited the states from denying the right to vote based on race, color, or condition of previous servitude. After Reconstruction, states evaded the Amendment with seemingly race-neutral laws such as literacy tests and poll taxes.

It would not be until 1965 that African Americans and other racial minorities regained the vote with the passage of the Voting Rights Act.

But in the 2010s, our current decade, the U.S. Supreme Court overturned a piece of the Voting Rights Act. And struggles for full access to the ballot continue, with states restricting voting opportunities through measures such as photo voter ID laws, voter purges, felon disenfranchisement, polling place closings, and gerrymandered legislative districts. Although the players and the issues in voting rights may change over time, today’s arguments would seem familiar to those involved in the antebellum fights over voting. And the stakes are very much the same: Who has the right to vote in America and who benefits from exclusion?

The post Suppressing Voting Rights Is as Old as the Republic—But the Tactics Keep Changing  appeared first on Zócalo Public Square.

Now the 14th Amendment is again embroiled in a bitter debate, in a divided nation, over who can be a legal U.S. citizen—and who can be arrested, locked up in a cage in a Texas shopping mall, or deported. A Zócalo/Daniel K. Inouye Institute event took up the tortuous history of the 14th Amendment’s passage, and also pondered the question, “How Can Americans Defend the 14th Amendment When the Government Won’t?”

The discussion, at the National Center for the Preservation of Democracy in downtown Los Angeles, brought together Johns Hopkins University historian Martha S. Jones, constitutional law scholar Garrett Epps, National Immigration Forum executive director Ali Noorani, and Mitchell Maki, President and CEO of the Go for Broke National Education Center.

Before their exchange got underway, the evening’s theme was underscored by an emotionally resonant reading by Irene Hirano Inouye, former president and founding chief executive officer of the Japanese American National Museum in Los Angeles. She recited three excerpts from her late husband U.S. Senator Daniel K. Inouye’s keynote address to the 1968 Democratic National Convention, in which Sen. Inouye stressed the rights of all Americans, the duties of citizenship, and the importance of community—at a moment when national leaders were being assassinated, the Vietnam War was splitting the country apart, and cops were clubbing protestors outside the convention hall.

Then moderator Madeleine Brand, host of radio station KCRW’s “Press Play,” opened the conversation by asking the panelists about the historical context in which the amendment came about, and whether its guarantee of “birthright citizenship” had effectively settled the question of whether former slaves were to be treated as U.S. citizens. Indeed, the 13th Amendment had abolished slavery, but after the Civil War the citizenship status of former slaves still was an “open question,” as Jones, the historian, pointed out.

The 14th Amendment arose during the turmoil of Reconstruction, in the face of furious opposition from the Southern former states of the defeated Confederacy, said Epps, who also covers the Supreme Court for The Atlantic. Among its most virulent opponents was President Andrew Johnson, a Southerner who’d succeeded the murdered Abraham Lincoln. How close did the amendment come to not passing?, Brand asked. “The answer is, incredibly close,” replied Epps who, as a native of Richmond, Virginia, was raised with an awareness that many Southerners still hadn’t accepted the amendment, decades later. “I grew up in a place and time when my teachers told me the 14th Amendment had never been validly adopted.”

The struggle to get it passed, Epps added, “is one of the most suspenseful stories in American history” and has many parallels with today’s heated Washington polemics over immigration policy, national security, and policing of the border. Epps said there also are several commonalities between Andrew Johnson—whom he described as a racist and, euphemistically, an “eccentric”—and the current commander in chief.

But President Johnson and his white-supremacist Southern supporters ultimately lost the battle, and the 14th Amendment in subsequent rulings “remodeled” the Constitution, Epps said. In the same way that the bulk of Western philosophy is simply a footnote to Plato, Epps said, “most of our constitutional law in the 20th century was footnotes to the 14th Amendment.”

Fast-forwarding to the present, Brand asked how the amendment applies to the current legal mayhem at the southern border. “What we’re seeing now is a de-humanization of immigrants,” said Noorani, of the National Immigration Forum. “There’s almost … gradations of access to due process, depending on who you are, where you were born, and what your immigration status is.”

Historical parallels and past U.S. mistakes loomed large in the discussion, none larger than the example of Fred Korematsu, the American civil rights activist who helped lead the outcry against the internment of Japanese Americans in concentration camps during World War II, and later became a fugitive himself.

During that ignoble chapter of national history, “Due process went out the window, equal protection under the law went out the window,” said panelist Maki of Go For Broke. The Supreme Court upheld the internment policy, and showed considerable deference to President Franklin D. Roosevelt—much as the current high court has deferred to President Trump on his bitterly controversial travel ban, the panelists observed.

Maki noted that this August 10 will mark the 30th anniversary of President Ronald Reagan’s signing of the Civil Liberties Act of 1988, which, among other provisions, earmarked thousands of dollars in individual payments to Japanese-American survivors of the internment camps.

Today, as in the 1940s, a harsh crackdown on immigration has been justified by claims that U.S. security is at risk. Today, as then, a presidential administration has treated some immigrants differently from other Americans by making claims that rested on dubious evidence, or that were outright contradicted by the available evidence, the panelists said.

For example, Noorani pointed out that, in February 2017 remarks, President Trump suggested that immigrants were more likely than other Americans to be terrorists. A recent letter issued by Trump’s own Justice Department declared there was no evidence that this is true. “It’s that same twisted logic that exists today that existed 75 years ago,” Maki said.

Picking up the theme, Jones said that, in fact, “There hasn’t been a time in America when citizenship and the rights of citizenship hasn’t been a debate.”

Epps agreed. “This is a cyclical debate that goes on and on, there are no new tropes,” he said. “We just keep having to fight the same battles over and over.”

During the question-and-answer period, an audience member from Redondo Beach asked whether any laws are being broken at the border, given there’ve been increasing reports of immigrants, including children, suffering emotional, physical, and sexual abuse. Noorani replied that these questions still are under legal review and are the subjects of active debate. But even if technically no laws are being broken, as the administration asserts, “They are certainly interpreting laws in a very awful way,” Noorani said.

Another audience member asked how Americans can try to make sense of these complex interpretive questions of constitutional law—particularly given the Trump administration’s attacks on the media and attempts to treat any negative coverage of its immigration policy as “fake news.”

“We’re in a moment where we have to educate ourselves,” Jones replied. “We have to ferret out those sources that we trust.”

More broadly, the panelists concurred, supporters of the 14th Amendment’s enduring legacy must find stories that illustrate its power and importance. Of course it’s necessary to win legal arguments, Noorani said, but it’s equally necessary to tell a compelling national story about why equal rights and protection for all Americans matters, and why they must be defended.

“I think our bigger challenge,” Noorani said, “is to take these bedrock principles of our nation and help the American public to understand why they are bedrock principles.”

The post Why America Keeps Battling to Live Up to the 14th Amendment appeared first on Zócalo Public Square.

But the “Miranda rights” routinely read to suspects as a result of the 1966 Supreme Court decision that overturned his conviction have their roots in a much earlier case: that of a young Chinese man accused of murdering three of his countrymen in Washington, D.C. in 1919.

The nation’s capital had never seen anything quite like it: a triple murder of foreign diplomats. The victims worked for the Chinese Educational Mission and were assassinated in the city’s tony Kalorama neighborhood. With no obvious motive or leads to go on, the Washington police were baffled. But once they zeroed in on a suspect, they marched into his Manhattan apartment, searched it without a warrant, and pressured him to return to Washington with them. There they held him incommunicado in a hotel room without formal arrest to browbeat him into a confession.

The young Chinese man, Ziang Sung Wan, a sometime student who had been seen at the death house on the day of the murders, was suffering from the aftereffects of the Spanish flu, and the police took advantage of his distress. He was questioned day and night, even when he was in severe pain and did not wish to speak. After nine days, he was brought back to the scene of the murder and subjected to harsh interrogation. Food and water were denied, as were bathroom breaks. Racial epithets were hurled. Finally, under extreme duress, he confessed and was immediately arrested.

At trial, Wan recanted his confession, which he claimed he had made only to stop the relentless grilling by the detectives. But the judge refused to exclude it, and he was convicted of first-degree murder, which carried the penalty of death by hanging. His attorneys made their objection to the confession the centerpiece of their appeal to a higher court. But the appellate court, citing an 1897 U.S. Supreme Court precedent, sustained the verdict, ruling that only promises or threats from the police would have given cause to exclude it.

When President Warren G. Harding refused to commute Wan’s sentence, his only hope lay with the Supreme Court, to which his attorneys immediately appealed. Under the leadership of Chief Justice William Howard Taft, the Court had been passive on civil liberties, if not hostile to them. So it was a surprise to many that it chose to consider the case.

As it happened, there was good reason to accept it. In the quarter-century since the 1897 ruling, the country had been embroiled in a robust national debate about the ethics and efficacy of what had come to be called the “third degree.” Creative detectives had come up with many methods of extracting confessions from unwilling suspects, some of which amounted to nothing short of torture. As techniques like quartering suspects in pitch-dark cells, turning up the heat to “sweat” confessions out of them, and even blowing red pepper or releasing red ants into their cells were exposed, the public reaction was strongly negative. The newspapers began decrying the practices as brutal and un-American.

At the same time, there was a fierce debate going on in the judiciary as to what kinds of interrogations and police conduct actually were prohibited under the law. All of this, on top of the staggering evidence that Wan’s confession had been coerced, provided ample justification for the Supreme Court to bring order to the chaos surrounding confessions.

After oral arguments were heard, the task of drafting the opinion fell to Justice Louis D. Brandeis. The Harvard-educated jurist—an unapologetic progressive and civil libertarian and a tireless fighter for social justice, freedom of speech, and the right to privacy—was the ideal choice. All the justices eventually united behind his ruling, the power and seminal nature of which can be found in its elegance and brevity. In throwing out Wan’s confession, the Court affirmed that the Fifth Amendment permitted only voluntary confessions to be admitted as evidence in federal proceedings and that voluntariness didn’t rest solely on whether a promise or threat had been made.

Wan was retried—twice, in fact—without his confession being admitted into evidence. But after two hung juries, both with majorities favoring acquittal, the Justice Department gave up prosecuting him. His case, however, lived on as a cause célèbre.

Two important challenges lay ahead before all of America’s accused could enjoy full protection under this new principle of law. First, because Wan had been tried in the District of Columbia, where the federal government was in charge of local affairs, the new standard applied only to cases before federal courts. The privileges promised to the accused in the Bill of Rights had not yet been determined to apply to the states and localities. This convoluted process, known as the “incorporation doctrine,” actually took decades. And second, the new standard lacked clarity. For all his eloquence, Brandeis hadn’t provided a satisfactory definition of what made a confession voluntary, or instructions as to what had to be done to ensure a confession was lawful.

As a result, the concept remained open to interpretation for decades, and as the Supreme Court heard case after case in which law enforcement ran roughshod over individual rights, and defendants—especially minorities—were mistreated between arrest and trial, it became palpably clear that in order to ensure voluntariness, police behavior would again have to be addressed explicitly. But this time the remedy would not involve outlawing nefarious police practices that might negate it so much as mandating constructive behavior that would ensure it.

In writing the opinion in the 1966 case of Miranda v. Arizona, Chief Justice Earl Warren quoted liberally from Ziang Sung Wan v. United States. And he mandated safeguards that were ultimately condensed into the summary statement familiar to most Americans today as Miranda rights. They serve to inform suspects in clear and unequivocal terms that they have a right to remain silent, that anything they say may be used against them in a court of law, that they have the right to counsel and that if they are unable to afford one, an attorney will be appointed for them.

The post The 1919 Murder Case That Gave Americans the Right to Remain Silent appeared first on Zócalo Public Square.

We remember Washington’s leadership, Jefferson’s eloquence, and Franklin’s wit, but Marshall breathed life into the Constitution, elevated the judiciary, and defended the federal government’s power over feuding states. The power of judicial review and the corresponding principle that courts should not interfere with political judgments are just two of the many doctrines that Marshall wove into our Constitution.

How was it possible that a man raised with 14 siblings in a 400-square-foot, two-room log cabin on the hardscrabble western frontier of Virginia defined the Constitution and forged some of the foundational principles of our system of government?

The answer lies in Marshall’s talent for constantly reinventing himself. In scarcely two decades, Marshall rose from a sharpshooter in the Continental Army to become the Judge Advocate General at Valley Forge, the youngest member of the Virginia Council of State, acting attorney general of the Commonwealth, emissary to France, a congressional leader of the Federalist Party, U.S. secretary of state, and chief justice. All of that reinvention nurtured a genius for inventing new legal doctrines.

President John Adams nominated Marshall as chief justice in 1800, after several other men had already turned down the job. In its first decade, the Court had an average of six cases a year and none of genuine importance. Justices spent most of their time riding circuit around the country hearing local disputes argued by untrained lawyers and sharing beds with strangers in rural taverns. Who would want to be chief justice? Of Marshall’s predecessors, John Jay had quit to run for New York Governor, John Rutledge lasted six months, and Oliver Ellsworth resigned after four years.

The Supreme Court was a constitutional afterthought. No one had even bothered to plan for a courthouse in the new capital. When the Marshall Court met for the first time it was assigned to a cramped nondescript committee room on the first floor of the Capitol, which it had to share with the federal district court and the court of appeals.

As Chief Justice, Marshall transformed the Supreme Court into a co-equal branch of the federal government by insisting the Court issue one unified opinion rather than having each justice issue his own opinion, as was the custom. During his 34 years on the Court, Marshall participated in more than 1,100 decisions, more than half of which he wrote, and all but 36 of his opinions were unanimous.

What makes this record all the more remarkable is that every justice appointed to the Court to serve alongside Marshall was appointed by a Republican president hostile to Marshall’s philosophy. Yet Marshall’s personality and intellect won over his brethren despite their opposing ideologies. Marshall achieved this level of unanimity in part by arranging for the justices to live together as a fraternity in the same rooming house. They literally ate every meal together as they reasoned through their docket.

The Marshall Court faced so many questions of first impression—cases involving the reach of federal powers and the checks and balances between the federal branches, the rights of aliens and Indians, corporations and colleges, and state sovereignty. Without the guidance of past precedence Marshall had to adjudicate these novel situations, and in the process he invented much of the constitutional and international law we have today.

One example of Marshall’s creativity concerned a dispute between two claimants to land in Florida. James Foster and Pleasants Elam purchased land in Florida while it was still owned by Spain. In 1819 Spain transferred Florida to the United States under the Transcontinental Treaty, which expressly guaranteed that the United States would recognize all pre-existing land grants made by Spain. Seven years later Foster and Elam discovered David Neilson squatting on their land, and they sued him for trespass. Neilson argued that despite their Spanish title they had no legal right to the land, and the case ended up in the Supreme Court. The Constitution provides that treaties are “the supreme law of the land,” and so it seemed that Foster and Elam would be the rightful owners.

Nevertheless, Marshall issued a unanimous opinion that denied Foster and Elam their property rights despite the treaty with Spain. Marshall reasoned that not all treaties were equal under the Constitution. Some treaties were intended to have a direct effect on domestic law, while others required implementing legislation from Congress. In Marshall’s view, the Transcontinental Treaty was not intended to be “self-executing,” and since Congress had done nothing to reaffirm the property rights granted by Spain, those rights could not be recognized in a U.S. court.

Why would Marshall, a stalwart defender of property rights, concede the rights of a prior owner in this situation? One explanation is that Marshall knew that then-President Andrew Jackson had no intention of complying with the treaties negotiated with tribal nations. Most probably, Marshall reasoned that by giving the courts some leeway to decide the status of these treaties the Court could avoid a direct confrontation with Jackson. Though Marshall subsequently affirmed the rights of tribal nations in a famous decision, Worcester v. Georgia, he did so when he could command a consensus on the Court, and when he thought that case presented the best opportunity for defending Indian sovereignty.

The case of Foster & Elam v. Neilson continues to stand for the proposition that there are self-executing and non-self-executing treaties and that it is up to courts to determine whether a specific treaty has a direct effect on legal rights under our law. Though Marshall attributed this principle to customary international law, in fact, it was pure invention.

Chief Justice Marshall was a pragmatist. Though he could best be described as a progressive today, he was not an ideologue. He insisted on unanimity wherever possible and worked hard at forging a consensus on the Supreme Court. He opposed slavery, but he knew that was a longer fight, and so he pushed his colleagues toward strengthening the power of the federal government over the states in the hopes that someday Congress would regulate slavery out of existence.

Marshall had a lasting imprint on the Supreme Court and the Constitution because he sought pragmatic solutions and valued consensus. That’s what democracy requires: practical jurists and statesmen who prefer compromise to chaos.

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