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E-Pluribus | November 5, 2021
Qualified immunity and the Bill of Rights, what Harry Jaffa has to say about freedom, and what are we doing to teachers.
A round up of the latest and best writing and musings on the rise of illiberalism in the public discourse:
Radley Balko: The Supreme Court has abdicated its duty to the Bill of Rights
Even as the more visible “defund the police” battle rages, there is growing discontent with another police-related issue, qualified immunity (QI). Intended as legal protection for those society asks to risk life and limb to keep the peace, Radley Balko argues that QI has morphed far beyond what was intended and shields bad cops from the consequences of their bad actions, further undermining trust in law enforcement and encouraging further bad behavior as well.
[L]egal scholars generally point to 1967′s Pierson v. Ray as the court’s first major decision affording [qualified immunity] protection to law enforcement (and other government officials) from civil liability for constitutional violations, so long as the violations were in good faith.
But that decision required courts (or juries) to determine the state of mind of the officers accused, always a difficult thing to discern. So in 1982, the court revised the policy and created qualified immunity as we know it today. To successfully sue a police officer, a plaintiff must pass a two-prong test, showing that: (A) the police violated the plaintiff’s constitutional rights, and (B) a reasonable person should have known the officers’ actions were unconstitutional under “clearly established” law.
The thinking was that officers and other government officials should not be held accountable for vague or confusing case law. But the courts have since stretched that sensible idea to preposterous lengths.
For example, in 2019, the 11th Circuit ruled that a district attorney who lied to state legislators so they’d vote against compensating a wrongly convicted man was entitled to qualified immunity because there was no clear case law stating the district attorney’s lies were unconstitutional.
In 2001, the court added more structure to the doctrine, ruling that federal courts should determine prong A before considering prong B. This was important — if fairly obvious — guidance: If the courts never rule on whether a police action is unconstitutional, it will never be “clearly established” that particular action is unconstitutional, allowing it to be repeated.
Read the whole thing.
Daniel J. Mahoney: The Politics of Freedom
Writing at City Journal, Daniel J. Mahoney reviews a new book by Glenn Ellmers on political philosopher Harry Jaffa. In an age where freedom faces existential threats once thought to be passé, Jaffa’s ideas, which incorporate the work and ideas of ancient philosophers, scripture, literature, as well as our own founders and great leaders of the past, are well worth a fresh look.
For those who remain faithful to the spirit of American republicanism, there is no doubt that the American political order is in the midst of a profound crisis. America’s founding principles have come under systematic assault in the worlds of journalism, the academy, social media, and in large and growing parts of the political class. The world’s most successful experiment in republican self-government, Abraham Lincoln’s “almost chosen nation” and “last best hope on earth,” is regularly denigrated as a hateful cauldron of racism, exploitation, and inequality. The new “woke racism,” as John McWhorter calls it, divides humanity into “privileged” oppressors—by definition beyond redemption—and “innocent” victims, who lack moral agency and are encouraged to blame others for their fate and to accept blindly the dictates of a tutelary bureaucratic state. In elite circles, traditional patriotism is held in contempt and legitimate national self-criticism has degenerated into pathological self-loathing. The disparities inherent in a vibrant, dynamic society and the diverse “factions” and divisions coextensive with “the system of natural liberty,” as Adam Smith called it, are now identified with systematic racism and discrimination. Doctrinaire egalitarianism, dogmatic relativism, and angry moralism coexist in a toxic mix. What are defenders of the old verities and decencies to do? Perhaps what’s most needed at this precarious moment is to gain clarity on our situation by returning to a principled understanding of the moral foundations of liberty, equality, and human dignity, in both a broadly human and specifically American context.
In a lively, gracefully written book that is at once learned, accessible, and challenging, Glenn Ellmers sets out to do precisely that. He turns to the life and writings of the late political theorist Harry V. Jaffa (1918–2015) for illumination about both “the soul of politics” and “the fight for America.” […]
Read it all.
Shane Trotter: The Demoralization of the American Teacher
While the substance of public education is under increasing scrutiny in recent years in the form of the Great Critical Race Theory Conversation (Argument?), Shane Trotter argues at Quillette that the system that public school teachers are forced to operate within is terribly discouraging for the teachers, counterproductive to true education, and quenches the desire of students to learn. Even a perfect curriculum is worthless if teachers are not given the tools (and freedom) they need to come alongside of parents to help children learn to think and learn to love learning.
However, the exceptional minority is too often characterized as the majority in response to anyone who would question the quality of our schools. These outliers have been made the poster child of education, meant to preclude any dialogue about what is going wrong. But amazing teachers would be much more effective in a better system. One great teacher is just a drop in the ocean—meaningful, perhaps life-changing in individual cases, and yet, not enough. Their impact can’t compare to the broader educational culture that students exist within.
As far back as 1982 the famed educator Marva Collins, who was twice asked to be the US Secretary of Education, wrote a book contending that public schools were in a state of crisis. As she asserted, “What I once assumed to be inferior education for the poor and underprivileged has become a nationwide malady that afflicts the middle and upper classes as well. I have found bad education in the places I least expected to find it.”
As with all generalizations, Collins’s statement does not tell the whole story. But that does not negate her conclusions or their long-term implications. For generations now, public education has not sufficiently met the needs of the moment. After decades of lowered standards, we are reaping what we sow. The students Collins observed are now our parents, teachers, and administrators, and what Collins perceived as “bad education” is the only system most of them have ever known.
In light of Collins’s opinion, I want to invite you to question your own educational experience. We can’t afford to keep entertaining the notion that education is not so bad. This is not an attack on the individuals involved in public education, but the institutional operating system that handicaps all educators.
Read it all here.
Conor Friedersdorf closes out an interesting discussion with Chris Hayes (click through and scroll up for the whole thing) by listing what he sees as the three types of critics of wokeness:
A take-no-prisoners thread from Ross Douthat responding to a dubious assertion by Tom Scocca on Critical Race Theory:
And finally, you’ve heard of “blackface”… but “black mouth”?