Randall Kennedy

Between 1525 and 1866, more than 12 million Africans were shipped to the New World as slaves. After some 200 years, slavery was abolished, and yet another century of Jim Crow, coupled with discriminatory housing and lending policies, contributed to its legacy. Dealing with the relics of that stain on American history is part of the national dilemma. But exactly how to do it is our question; something lawmakers in Washington are also now debating. A top aide to President Joe Biden recently said that the White House will ‘start acting now’ on reparations for African Americans. Some say it’s long over-due. Reparations, they say, are important to start to address the moral injury slavery inflicted. Others say direct payments to African Americans will divide the black community, exaggerate racial tensions and prove impossible to administer. Arguing that reparations are the way to go is Cornell William Brooks, former president and CEO of the NAACP.Arguing that direct payments to African Americans are not the most effective means of addressing the legacy of slavery, and that they could have unintended consequences is Randall LeRoy Kennedy is an American law professor and author at Harvard University.

When I spoke to the Princeton University legal scholar and political philosopher Robert P. George in August, he offered a vivid zoological metaphor to describe what happens when outrage mobs attack academics. When hunted by lions, herds of zebras “fly off in a million directions, and the targeted member is easily taken down and destroyed and eaten.” A herd of elephants, by contrast, will “circle around the vulnerable elephant.” ... George was then recruiting the founding members of an organization designed to fix the collective-action problem that causes academics to scatter like zebras. What had begun as a group of 20 Princeton professors organized to defend academic freedom at one college was rapidly scaling up its ambitions and capacity: It would become a nationwide organization...Today, that organization, the Academic Freedom Alliance, formally issued a manifesto declaring that “an attack on academic freedom anywhere is an attack on academic freedom everywhere,” and committing its nearly 200 members to providing aid and support in defense of “freedom of thought and expression in their work as researchers and writers or in their lives as citizens,” “freedom to design courses and conduct classes using reasonable pedagogical judgment,” and “freedom from ideological tests, affirmations, and oaths.” ... Some of the founding members from outside of Princeton include Randall L. Kennedy, Orlando Patterson, Jeannie Suk Gersen, Janet Halley, and Cornel West at Harvard; Brian Leiter and Dorian S. Abbot at the University of Chicago; Sheri Berman at Barnard; and Kathryn L. Lynch at Wellesley.

A book review by Ronald Sullivan: A decade ago, Sudhir Venkatesh, a Columbia University professor of sociology, made quite a splash with his book “Gang Leader for a Day: A Rogue Sociologist Takes to the Streets.” His research consisted of shadowing a Chicago gang for 10 years, and it yielded valuable insights on the inner workings of the drug trade. Notwithstanding his book’s provocative title, however, Venkatesh never became a gang leader; rather, he closely observed gang life and culture by gaining unprecedented access. Georgetown law professor Rosa Brooks took this a step further, as recounted in her fascinating book “Tangled Up in Blue: Policing the American City.” Brooks did not simply observe policing in America. This highly educated, tenured professor became the police...The two stories work together to show that race and class conspire to create conditions that leave poor, Black citizens with mostly bad choices in order to survive. These choices include committing crimes. But these crimes have victims, who are mostly poor and Black. The victims of crime require and request more policing. But more policing results in the negative interactions between the police and Black citizens that have sparked so many recent protests. This is what Harvard scholar Randall Kennedy calls a “negative good” in his groundbreaking work, “Race, Crime, and the Law.” It is a “good” for police to respond to neighborhoods with heightened crime, but a “negative” when over-policing leads to harms to the very community law enforcement purports to protect. “Tangled Up in Blue” puts this tension on full display.

In the closing days of his presidency, Donald Trump has demonstrated that he can make innumerable false claims and assertions that millions of Republican voters will believe and more than 150 Republican members of the House and Senate will embrace ... In the academic legal community, there are two competing schools of thought concerning how to go about restraining the proliferation of flagrant misstatements of fact in political speech ... Rebecca Tushnet, a law professor at Harvard, wrote by email: “Those are some big questions and I don’t think they have yes-or-no answers. These are not new arguments but they have new forms, and changes in both economic organization and technology make certain arguments more or differently salient than they used to be.” ... Lawrence Lessig, a law professor at Harvard...wrote by email, that “the First Amendment should be changed — not in the sense that the values the First Amendment protects should be changed, but the way in which it protects them needs to be translated in light of these new technologies/business models.” ... Randall Kennedy, who is also a law professor at Harvard, made the case in an email that new internet technologies demand major reform of the scope and interpretation of the First Amendment and he, too, argued that the need for change outweighs risks: “Is that dangerous? Yes. But stasis is dangerous too. There is no safe harbor from danger.” ... In one of the sharpest critiques I gathered, Laurence H. Tribe, emeritus professor at Harvard Law School, wrote in an email that, “We are witnessing a reissue, if not a simple rerun, of an old movie. With each new technology, from mass printing to radio and then television, from film to broadcast TV to cable and then the internet, commentators lamented that the freedoms of speech, press, and assembly enshrined in a document ratified in 1791 were ill-adapted to the brave new world and required retooling in light of changed circumstances surrounding modes of communication.”

An article by Randall Kennedy and Ilya Somin: This presidential election season joins the last several in being attended by accusations that certain candidates are ineligible because of the requirement in Article II of the Constitution that the president be not only a citizen, but a “natural born” citizen. This time around, some have claimed that Sen. Kamala Harris is ineligible for the presidency because, though born in the United States, her parents were immigrants who had not become citizens by the time of her birth. We believe this claim is untenable. But the need to address the matter at all highlights why eligibility distinctions that turn on place of birth or status of parent ought to be abolished. That eligibility for our highest political office is conditioned by an invidious discrimination buried in the Constitution itself should be highly disturbing. In 2016, the targets were Republican candidates Ted Cruz (born in Canada to U.S.-citizen parents who had immigrated from Cuba) and Marco Rubio (also the son of Cuban immigrants). In 2008 and 2012, Barack Obama, was assailed by “birthers”who falsely claimed he was born outside the United States. Obama's 2008 GOP opponent, John McCain, came under attack because he was born in what was then the Panama Canal Zone. Such episodes are all too likely to recur. In an increasingly diverse society, it will often be possible to claim tendentiously that some candidate or other is ineligible.

The Violent Crime Control and Law Enforcement Act of 1994, commonly known as the crime bill, was sponsored by Joe Biden 26 years ago. It is often blamed for extending tough-on-crime policies that overly criminalized Black Americans. Is this narrative warranted? The issue is complicated, but we’ll do our best to make some sense of it...Former Vice President Joe Biden has been asked repeatedly about his role in creating this bill. It came up during his vice-presidential selection when Congressional Black Caucus (CBC) chair Karen Bass, who was under consideration as his running-mate, responded with a shrewd history lesson. Although Bass reported that she would have opposed the bill if she had been in Congress at the time, she said, “I understand very well why elected officials did what they did, because the masses of the people in these communities were demanding it.” ...As Yale law professor James Forman Jr. wrote in his much-cited 2017 book, Locking Up Our Own, “At the height of the [crack] epidemic, Black political and civic leaders often compared crack to the greatest evils that African Americans had ever suffered.” Writing twenty years earlier, another prominent African American scholar, Harvard law professor Randall Kennedy, argued that “Blacks have suffered more from being left unprotected or under-protected by law enforcement authorities than from being mistreated as suspects or defendants” (“Unprotected or under-protected” are interesting and important choice of words, to which we’ll return)...Let’s return to the “unprotected or under-protected” comment from Prof. Kennedy. Members of the CBC claim they want better policing for Black communities rather than more. This is complicated for people to interpret, especially when polls show that over 80% of Blacks want more police presence, not less. Often, surveys don’t ask the right type of questions about policing—questions that would get at complexity and nuance.

Before the NBA and the National Basketball Players Association announced Friday that the postseason would resume with players and the league working collectively toward social justice goals, we reached out to more than a dozen leaders to ask how they would advise NBA players to use their influence to translate political passions into tangible results...The Milwaukee Bucks spent part of Wednesday on the phone not with federal office-holders or national leaders, but with their state's attorney general and lieutenant governor. Many of the laws that govern criminal justice originate at the local and state levels, and many of the grassroots organizations and local interests that can compel reform from those with power reside in local communities. There are no simple answers to the most serious questions, and no singular route to progress. Our panel of experts offers a range of ideas to this generation of NBA players who are looking toward the next phase of their activism, excerpted below from longer conversations...How deeply do NBA players need to educate themselves in the intricacies of criminal justice reform? Randall Kennedy (Michael R. Klein professor of law, Harvard Law School): One should not expect athletes to be experts in problems involving the administration of criminal justice. There are people who have a demonstrated history of being involved in legislative activity, in litigation, in public education the way these elite players work on their games. The players have stature and some degree of financial resource, and what they are doing has been fantastic. They should link up with those who are knowledgeable and have a track record -- and who could use the help.

Despite his racism, his incompetence, his soliciting of foreign intelligence to boost his presidential bids, what may be multiple attempts at obstructing justice, and his undermining of American democracy, Donald Trump is still eligible to serve as president of the United States. And that’s because, like his running mate and their Democratic opponents in the race for the White House, he meets the two main constitutional requirements to serve as commander-in-chief: He’s over 35 and a natural-born citizen. While setting a minimum-age for the president seems somewhat arbitrary, the requirement to be a natural-born citizen is rooted in a xenophobic fear of recent immigrants as potentially disloyal Americans who might be foreign agents. It creates a tiered citizenship both legally and psychologically: Through the “natural-born” clause, the Constitution grants more rights to those who are Americans by birth than those who are Americans by choice. As a result, naturalized citizens are made to feel — whether consciously or not — that they are not actually every bit as American as their natural-born counterparts, despite what they’re told when they swear their allegiance to the United States. “We’re told various stories about our democracy,” Randall Kennedy, a professor at Harvard Law School, said in an interview. “We’re told all citizens are the same. Well, all citizens are not the same because the United States Constitution makes a distinction.” That’s why, as Kennedy has argued, the Constitution should be amended to allow naturalized citizens to serve as president... “What matters to me is that we’re not in the 18th century,” Kennedy said. “We’re in the 21st century and there are millions and millions of people who were born abroad, who have become American citizens, and are willing to give their all to the betterment of this country.”

An article by Randall Kennedy: It is no surprise that universities have become targets of the activism erupting in the wake of the killing of George Floyd. University police forces have been implicated in racist malfeasance. Universities oversee labor forces which reflect the class and racial divisions partitioning society at large. Universities are the site of cultural battles over iconography (Calhoun College at Yale, the Woodrow Wilson School at Princeton, Washington and Lee), and the propriety of taking race into account in admissions. At a time when racial reckonings have visited the NFL and Nascar, The New York Times and Vogue, Minneapolis and Mississippi, it was inevitable that they would visit campuses, too. And they have. Recently, chairs of African American studies departments at Georgetown, Notre Dame, Fordham, and other Catholic universities and colleges asserted that “systemic racism and white supremacy are problems” at their campuses. “Symbolic statements, marches, token town halls, or other typical measures to pacify our campus communities,” they warned, are insufficient “while grave inequities persist.” A letter to the trustees and president of Dartmouth from professors and staff there called for the dismantling of “structures that implicitly or explicitly work against and devalue Black, Brown, and other people of color at Dartmouth.” Faculty and staff members at the University of Chicago set forth “a set of specific and immediate actions the [university] must take to begin to repair and redress its long history of willingly enabling and directly contributing to structural racism.” If their requirements remain unmet, they said, they will decline to participate in university affairs, urge colleagues at other institutions to boycott the university, and prevent the university from using their accomplishments to launder the “neglect and derision of people of color and scholarship and teaching on race.”

In May, the North American Scrabble Players Association made a big announcement. Scopely Inc. had agreed to add the official tournament lexicon to its hot new app, Scrabble Go...Within a month, though—and in the wake of the killing of George Floyd and the Black Lives Matter protests around the country—executives at NASPA, supported by some of its membership, were fighting to permanently remove from tournament Scrabble some of the very words they had just fought to gain access to. And this week, Scrabble’s owner, the toy and game giant Hasbro Inc., announced that NASPA would delete “all slurs” from its word list and that the company would rewrite the rules “to make clear that slurs are not permissible in any form of the game.” ...I asked Harvard Law School professor Randall Kennedy about the Scrabble debate...He told me it’s understandably reasonable to be concerned that any deployment of a slur gives the word legitimation. He also said it’s healthy to question the use of words in the current climate around social justice—but not at the expense of other values. “My view is that the context in which a word is used always conditions the meaning of the word,” Kennedy told me. “If you were using a term in a setting in which it’s clear that there is no message being sent, and in fact is an agglomeration, a series of symbols—a, b, c, d, e, and the rest—I don’t see what the problem is. If the word is being used in a way that is demeaning, if the word is being used in a way that is putting down people, I’m against that. But if the word is being used in some other fashion, then that should be recognized and understood.” In his book, Kennedy argues against “eradicationists” who want the N-word to be expunged from the language. Doing so, he told me, would diminish James Baldwin, Mark Twain, “Letter From a Birmingham Jail,” Richard Pryor, Eudora Welty, and more. “I would rather more speech than less. I would rather knowledge than erasure,” he said. “I think there’s going to be a tremendous loss in this campaign of bowdlerization, this campaign of euphemism by dint of punishment if you don’t go along with it.”

An article by Randall Kennedy: Every day in every part of America, people of all backgrounds, but especially people of color, are menaced by poorly regulated police. Absent the fortuity of a video recording, the circumstances of George Floyd’s death would have probably been effectively covered up and buried. Even with the evidence at hand, securing a conviction and appropriate punishment is by no means guaranteed; police caught red-handed abusing civilians have frequently escaped accountability. At the same time, the response to Floyd’s killing has been extraordinary. People of all races, all ages, all gender identifications, and all party affiliations have raised their voices—as one. Hundreds of thousands have taken to the streets braving the risks associated with the pandemic and panicky law enforcement. They act out of grief for Floyd, determined that his killers be punished. They act out of pent-up frustration and fury, keenly aware that despite increased scrutiny of policing over the years, the grisly chronicle of avoidable police killings grows apace. They act out of solidarity with mistreated fellow demonstrators and out of a sense that their dissent is making a real difference. They act out of revulsion for the antics of President Donald Trump, who, far from displaying any compassion, tried to vilify and intimidate protesters and appeal to the nethermost instincts of his electoral base. The breadth and intensity of the expressions of bereavement, solidarity, sympathy, and hopeful demands for reform are what have made this period feel so promising. Organizers from across the spectrum of progressive activism have, to a large extent, conducted themselves admirably, eliciting broad participation, and infusing supporters with fervor and resolve. After years of often overlooked work associated with or inspired by Black Lives Matter, they have clearly honed their skills and become remarkably effective agitators. These are the organizers most responsible for drawing and channeling the massed dissent.

On CNN, Michael Smerconish talks to Professor Randall Kennedy about using the n-word in academic settings.

Among certain conservatives, an idea has started to take hold: Could Justice Clarence Thomas ever be the kind of pop-culture icon to his followers that Justice Ruth Bader Ginsburg has become to hers? Justice Ginsburg, 87, has a book to her name, a touring museum exhibition and a surprise box-office hit in a 2018 documentary about her life. She is tattooed on her fans. Her personal trainer has his own book out. She was appointed to the bench in 1993 but came to realize and embrace this level of celebrity in recent years when her dissents became liberal rallying calls, leading to the nickname homage — and then best-selling book on her life — “The Notorious R.B.G.” Justice Thomas, the Supreme Court’s most conservative member, is catching up in his own way at age 71...As Justice Ginsburg has become the flag bearer of the Supreme Court’s diminished judicial left, Justice Thomas, who spent years dissenting on the fringes, is a potent symbol for an ascendant conservative wing. “He’s the most right-wing member of the court, and we are in a right-wing moment,” said Randall Kennedy, a professor at Harvard Law School and critic of the justice. In a piece in The Nation last fall, he criticized those who he said had recently “been solicitous of Thomas” in terms of his biography and his legal thinking, writing that he’d once been the same himself.

A book review by Randall Kennedy: Appointed 28 years ago, Clarence Thomas holds the honor of having held a seat on the Supreme Court longer than any of the other current justices. He is also the nation’s second African American justice, having succeeded the first, Thurgood Marshall, in 1991. Born in Pin Point, Georgia, in 1948, Thomas grew up poor, though not destitute, and in circumstances in which he experienced both anti-black racism and the opportunities pried open by the civil rights movement. He attended Holy Cross College and Yale Law School, pursuant to admissions programs that expressly sought to assist promising black students. Upon graduating from Yale, he associated himself with Jack Danforth, an ambitious, well-connected Republican and future Missouri senator who became a lifelong mentor and door opener. Through his budding ties with the GOP, Thomas steadily rose on the rungs of the political appointee ladder.