Kenneth Mack

A book review by Kenneth Mack: What’s wrong with the democratic experiment? As the United States faces what many believe are existential threats to its political processes, and fragile political systems around the world slip into new, technologically savvy variants of authoritarianism, many commentators say we are suffering a crisis of democracy. Some point to recent departures from bedrock norms that govern the conduct of government and the role of free speech in civic life, with campus debates over matters such as sexual harassment and unpopular speakers as examples of a new generation that has yet to learn the lessons of its forebears. Others argue that the nation’s political heritage is the problem rather than the solution, pointing to undemocratic governmental features such as the electoral college, as well as recent efforts by groups with declining electoral numbers to gerrymander legislatures, suppress Black and Latino votes, and engage in hardball politics to sustain illegitimate legislative, executive and judicial power. Ellis Cose, the eminent journalist, grapples with both explanations for our present crisis in his pithy and thought-provoking book, “The Short Life and Curious Death of Free Speech in America.” Cose contends that the death of traditional free-speech norms might in fact be a good thing, given our current challenges. That might sound like heresy coming from a veteran journalist, and Cose knows it.

It was a presidential election befitting the past four years, unprecedented and contentious...The Gazette asked scholars and analysts across the University to reflect on lessons learned in a variety of areas...Tomiko Brown-Nagin: “This election crystalized American promise and American peril. Fifty-five years after passage of the Voting Rights Act and 100 years after ratification of the 19th Amendment, the fundamental right to vote — the essence of a democracy —remains ferociously contested and deeply cherished. Turnout was extraordinary! An estimated 67 percent of eligible voters cast ballots — almost 160 million people — the greatest number in more than 100 years...At the same time, we witnessed a concerted effort to suppress the vote, to intimidate voters, and to delegitimize legally cast votes.” ... Sandy Levinson: “What we learned was that the uncertainty of this election is entirely a function of the crazy way that Americans elect their president, which is through the Electoral College. This means, for example, that [President] Trump gets nine electoral votes for carrying the two Dakotas plus Wyoming, which collectively have only about 200,000 more residents than New Mexico, which contributed only five votes. What remains an ‘interesting’ question, if one is an academic, is why Americans persist with such a truly dysfunctional system of presidential election.” ... Carol Steiker: “What I have learned in this election is that despite, or perhaps because of, the anger and divisiveness that have marked this political season, it is possible to substantially shift the needle on popular political engagement. We are seeing levels of voter turnout in this election not seen in more than a century, since William Howard Taft defeated William Jennings Bryan in 1908.” ... Kenneth Mack: “What I have learned from this election so far is both a lot and a little. Historians typically look at elections as vehicles for possible political, economic, or social change. Certainly in the run-up to this year’s election we’ve seen some things change significantly. We have the first woman of color on a major party ticket (who now seems poised to become vice president), Black candidates seeming to run competitively statewide in several Southern states, and efforts to suppress minority voting of a kind we haven’t seen in decades.” ... Yochai Benkler: “ The right-wing propaganda feedback loop, anchored in Fox News and talk radio and supported by online media, has played two critical roles in the election. The first, and most foundational, is that throughout the presidency of Donald Trump it offered an alternative reality, in which the president was a strong, effective leader hounded by an alliance of Democrats who hate America and Deep State operatives bent on reversing the victory of Trump, the authentic voice of the people.”

This year’s riven, pandemic-complicated election has been unusual on many fronts and undeniably historic, marking the first time a woman of color has been nominated for vice president by a major political party. But there have been other surprising contests in the nation’s history. American saw its first woman presidential nominee and its first Black vice presidential pick in 1872, just seven years after the end of the Civil War. All of it was owing in large part to the women’s suffrage movement and radical feminist Victoria Woodhull, who ran for president against the incumbent, Ulysses S. Grant, as the nominee of the Equal Rights Party and chose (without his knowledge or consent) abolitionist Frederick Douglass as her running mate. For Woodhull, a polarizing political activist who was considered an eccentric by many, it would be the latest of many firsts — a self-declared clairvoyant, she had already been the first woman in the country to own a brokerage firm and to start a weekly newspaper...But while Woodhull was clear about her presidential intentions, she never informed her running mate, Douglass, who never even acknowledged he had been nominated...Douglass also likely didn’t recognize the vice presidential nomination in 1872 because he was already supporting a different presidential candidate, said Kenneth Mack, a historian and Lawrence D. Biele Professor of Law at Harvard Law School...Douglass was a lifelong supporter of women’s suffrage despite splitting with activists in his support of the 15th Amendment, which gave Black men the vote but left women disenfranchised. “Thousands of Black people were being murdered across the South. And Douglass gave his famous speech saying, ‘This is a matter of life and death,’ and he really meant life and death,” said Mack...What would Douglass have thought of the country’s recent elections? “It’s impossible to translate from the 19th century to today … but certainly the principle that Douglass stood for, that the most vulnerable people in our society should have access to the ballot in order to protect their interests, that ballot access should be expanded rather than contracted, was his position all the way through. And he supported women’s suffrage because he thought that women needed the ability to look out for their own interests rather than to supposedly have men look out for them,” said Mack.

Tamika Palmer's voice broke as she spoke about the city of Louisville, Kentucky's $12 million settlement and planned reforms after the killing of her daughter, Breonna Taylor, during a botched police raid...Standing right behind her was Benjamin Crump, an attorney nicknamed "Black America's attorney general" by civil rights activist Reverend Al Sharpton. Crump, 50, has represented the distraught families of a lengthy list of slain African-Americans in recent years, as they have faced some of the darkest moments of their lives in the public glare. They include the families of Trayvon Martin, a Black teen shot dead in Florida; Ahmaud Arbery, a Black jogger killed in Georgia; and George Floyd, a Black man whose death in police custody in Minnesota sparked global protests this year. Crump says one of his main roles is to keep the spotlight of media attention on the victims and their families. "It's no guarantee that you will get to the court of law, but you first have to win in the court of public opinion if you're a minority in America who was killed by the police," Crump said in an interview with Reuters earlier this month. By focusing public attention on his clients, Crump is following in the footsteps of decades of civil rights lawyers, but with new tools like social media and smartphone videos at his disposal, civil rights experts say. "He's effective in getting attention paid to his cases and putting pressure on local authorities to act in the interest of his clients," said Kenneth Mack, a professor at Harvard Law School. "And to some extent, that's more than half the job at this moment." Like many plaintiffs' lawyers in the United States, Crump works on a contingency basis and receives a cut of the final settlement. Crump's payments have not been made public but plaintiffs' attorneys frequently receive around a third of the settlement amount.

As protests for racial justice take to the streets, we remember one of the most important civil rights lawyers of the mid-20th century: Loren Miller. Miller worked on landmark U.S. Supreme Court cases, like Shelley v. Kraemer, which resulted in racially restrictive housing covenants being ruled unconstitutional, and Brown v. Board of Education, which ended legal segregation in public schools. He was also an influential writer and activist. Host Giovana Romano Sanchez interviews writer and researcher Dr. Amina Hassan and Harvard professor Kenneth Mack about Miller’s life, work, and significance in today’s racial politics.

An article by Kenneth Mack: The air was hazy on a January night in 2018 when Isabel Wilkerson, the journalist and author of a much-lauded narrative account of the Black migration out of the American South, arrived in Delhi. Wilkerson’s visit had been prompted by a book she was writing that used the Indian caste system to illuminate America’s racial hierarchy. It was her first trip to India, but one aspect of what she saw there seemed instantly familiar. She quickly discovered that, as an African American woman schooled in the folkways of race in her home country, she could easily distinguish upper-caste Indians from Dalits, or Untouchables. In turn, “Dalits . . . gravitated toward me like long-lost relatives.” Patterns of deference and social performance marked caste onto her hosts’ bodies, even when Indians did their best to shake them off. Wilkerson spent much of the 2010s researching and writing her book, just as the United States was moving in a direction that seemed to validate its thesis. A series of killings of African Americans, often by police officers, helped birth a new anti-racist social movement. Athletes knelt, monuments to slavery began to come down, reparations for enslavement and its long aftermath became a mainstream idea, and the politics of White grievance took over the White House. When she finished her book, she titled it “Caste: The Origins of Our Discontents.” Wilkerson’s thesis is that Americans’ current obsession with race is somewhat misplaced, for there is a deeper and more intractable system that hides behind the chimera of race, and that system is properly called American caste.

An article by Kenneth Mack: In our present racial crisis, the words of the writer and essayist James Baldwin have reemerged and become ubiquitous in American public discourse. Baldwin’s writings, sometimes shorn of context, are now quoted endlessly on social media and have been prominently displayed during protests against police brutality. Documentary filmmakers and feature film directors, including Academy Award winner Barry Jenkins, have mined his work for their craft. The noted writer and theater critic Hinton Als has curated a multimedia art exhibit dedicated to a complex representation of his life and persona. In addition, Baldwin’s queerness — his status as a gay black man — seems to invest his words with a special prescience for us. Baldwin achieved the height of his fame in the middle of the 1960s, when the novelist and former boy preacher’s beautiful and evocative words seemed to capture the stakes of the black freedom movement like nothing else — particularly for white liberals. It is that prophetic aspect of Baldwin that Eddie S. Glaude Jr., chairman of Princeton’s African American studies department, seeks to recover in his book “Begin Again: James Baldwin’s America and Its Urgent Lessons for Our Own.” The strength of Glaude’s book depends on how well he makes the case that Baldwin speaks directly to our times. “Begin Again” is, in fact, two different books. The first takes the reader on a deeply researched tour of Baldwin’s essays and actions from the mid-1960s forward. Glaude wants to rescue Baldwin’s legacy from many critics who contend that his art and insightfulness declined once he became an international icon and felt the need to speak for black America. Indeed, Baldwin’s novels and essays from the late ’60s on often received tepid or negative reviews. He sympathized with the emerging black power movement but endured withering, homophobic criticism from figures like Eldridge Cleaver.

A week in the life of Ben Crump — last week, to be precise. Tuesday in Houston to attend George Floyd’s funeral, where the Rev. Al Sharpton introduced Crump as “black America’s attorney general, probably because we don’t feel like we have one.” Wednesday in Washington to testify before the House Judiciary Committee on racial profiling and police reform. Thursday in Louisville, to convince the city council to pass a law in Breonna Taylor’s name banning no-knock warrants, which passed unanimously. Friday, a return to Houston. The coronavirus pandemic slowed much of the world but the killing of black Americans continued, often at the hands or bended knee of the police. And it didn’t slow Attorney Crump, as he’s known to clients and associates...Police brutality in America, Crump argues, dates its origins to colonial slave patrols in the early 18th century. But “videos have changed everything. They’ve shifted believability,” says Kenneth Mack of Harvard Law School. Generating publicity in advance of trial has a history among civil rights attorneys, including Marshall, Mack says. “Crump’s engaged in multimedia advocacy,” he says. “Putting pressure on state authorities to investigate cases that otherwise would not be investigated.” In a case like Floyd’s, while Minnesota is prosecuting the officers, Crump appeals to the House for reforms and the U.N. to intervene. The legal team often files or sues for public records, advocates for tougher sentencing and uses the media to challenge police accounts.

... Crump is an attorney of our times, as much a creature of the green room as the courtroom. In a nation lousy with lawyers, he has become the go-to advocate for families who have lost relatives to police brutality, as though his is the only name on the list. ... Police brutality in America, Crump argues, dates its origins to colonial slave patrols in the early 18th century. But “videos have changed everything. They’ve shifted believability,” says Kenneth Mack of Harvard Law School. Generating publicity in advance of trial has a history among civil rights attorneys, including Marshall, Mack says. “Crump’s engaged in multimedia advocacy,” he says. “Putting pressure on state authorities to investigate cases that otherwise would not be investigated.”

... To understand the significance of Juneteenth, a blending of the words June and 19th, we asked some members of the Harvard community what the holiday means to them. ...David Harris, Ph.D.’92, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School: "Juneteenth is a defining day. However empty the promise of freedom often appears to have been, Juneteenth has remained a day uniquely celebrated by the descendants of the formerly enslaved." ...Kenneth Mack, Lawrence D. Biele Professor of Law at Harvard Law School; affiliate professor of history at Harvard University: .".. We commemorate Abraham Lincoln in various ways, but we don’t have a national commemoration of the triumph over slavery, which has to be one of the most important moments in American history. One should consider Juneteenth in that context. The best case to be made for Juneteenth would be as a commemoration of both the legacy of slavery and the success of the movement to abolish formal slavery in the United States."

A headline-making protest that drew enormous crowds to the streets of Boston started with a tweet — and three college students. After three days of watching protests sweep across the country in the wake of the killing of George Floyd, a 46-year-old Black man, in Minneapolis, Amel Viaud of Mattapan decided it was time for her community to stand up...Young people have the megaphone, and they say they won’t give it up until the country has fully reckoned with the police violence and systemic racism threatening their communities and lives...Young people organizing for racial justice follow in a long tradition. “There have been successive waves of youth activism outflanking the traditional African-American and civil rights leadership" dating back to the 1930s, said Kenneth Mack, a Harvard Law School professor who studies the history of race in the law. He pointed to the example of Representative John Lewis, who as a young man chaired the Student Nonviolent Coordinating Committee, a civil rights group that both collaborated with and challenged the tactics of established figures like Martin Luther King Jr. “In that sense, what’s happening right now is very continuous with the past,” Mack said. To Mack, it is no surprise that today’s young people, and Black youth in particular, are leading a new wave of civil rights protests. “I think it’s become hard for young people to avoid images of the movement today,” he said. Teens and young adults are steeped in videos of Black people dying at the hands of police officers, political hashtags and slogans, and images of protests — all of which circulate rapidly online. “We have an entire generation of young people now who have grown up debating these issues," Mack said.

The economic fallout is here. As a result of the coronavirus pandemic, Americans are losing their jobs, watching small businesses around them close up shop, and fretting about their retirement savings. It’s a bleak scenario that has lawmakers scrambling to soften the blow: Yesterday, Congress passed a relief package that temporarily mandates paid sick and family leave for some workers, expands unemployment insurance, and increases funding for food stamps and Medicaid—and that could be only the beginning of the government’s response...More recently, the same dynamic played out with the Affordable Care Act. Though the law was fairly unpopular when it first passed, it drew more support from Americans over time. In fact, while the GOP ran on repealing the law for the better part of a decade after its passage in 2010, Republicans quickly changed their message from “repeal” to “repeal and replace” when it became clear that most Americans didn’t want the law to go away—a tacit acknowledgement that the country would not be returning to a pre-ACA era. Even when Republicans controlled the White House and both chambers of Congress at the start of Donald Trump’s presidency, they repeatedly failed to overturn the ACA—though the administration has undermined the law in other ways.“The attempt to delegitimize the Affordable Care Act is to delegitimize the idea that government can actually do things to help the lives of citizens,” Kenneth W. Mack, a Harvard University law professor, told me.