Very Scary: NYT's Article Discusses Highly Partisan Revision of Texas Social Studies Curriculum

An article in the New York Times describes a disturbing list of possible revisions to the social studies curriculum in Texas public schools. The Texas Board of Education ("TBE") approved the changes, which, after a public comment period, could face possible revision before final approval.

Highly Partisan Process
The article describes contentious discussions among Democrats and Republicans within the Republican-dominated TBE. All members are elected.

Ultimately, the TBE approved the changes with a strictly partisan 10-5 vote. A conservative member of the TBE says that the changes will add "balance" to the curriculum.

Highlights With a Caveat
Although the New York Times article is clearly slanted against the proposed changes, some of them sound quite disturbing on their face (regardless of the overall slant of the article). It is unclear, however, to what extent the TBE also accepted favorable improvements to the curriculum and to what degree the proposals listed in the article represent extreme outliers.

Here are some of the details from the article.

One board member said the following:

“I reject the notion by the left of a constitutional separation of church and state,” said David Bradley, a conservative from Beaumont who works in real estate. “I have $1,000 for the charity of your choice if you can find it in the Constitution.”

This view represents the same bankrupt notion that the Constitution spells every right out with particularity. The Ninth Amendment directly refutes that concept, as does the word "liberty" in the Fifth and Fourteenth Amendments. Nonetheless, social conservatives continue to hawk this folly as solid constitutional interpretation.

This view also ignores the role of the Supreme Court to interpret the meaning of the Constitution. Conservatives might disagree with Court rulings, but students should understand that they are binding on matters related to the Constitution. Texas would do a severe disservice to its students if it does not teach them about the responsibilities and powers of each branch of government.

Another conflict centered around race:

Efforts by Hispanic board members to include more Latino figures as role models for the state’s large Hispanic population were consistently defeated, prompting one member, Mary Helen Berlanga, to storm out of a meeting late Thursday night, saying, “They can just pretend this is a white America and Hispanics don’t exist.”

“They are going overboard, they are not experts, they are not historians,” she said. “They are rewriting history, not only of Texas but of the United States and the world.”

Some changes represent blatant efforts to boost the reputation of the Republican Party. For instance:

[Conservatives] made sure that textbooks would mention the votes in Congress on civil rights legislation, which Republicans supported.

“Republicans need a little credit for that,” [Dr. Don McLeroy] said. “I think it’s going to surprise some students.”

I do not mind students learning about the Democrats' or the Republicans' racial past; in fact, I teach these issues in my law school courses. But students should also learn that, as President Johnson accurately predicted, the passage of the Civil Rights Act of 1964 cost the Democrats an entire generation of Southern whites. The Republican Party was more dominant in Northern states at the time (as it was historically). Now, due to a dramatic political realignment, its power is concentrated primarily in the South and among whites.

Also since the passage of the Civil Rights legislation, no Democratic presidential candidate has ever won a majority of white voters nationwide, due primarily to "white flight" from the Democratic Party. Republicans and Democrats deserve full "credit" for their decisions.

Even Thomas Jefferson could not escape the conservative knife:

Cynthia Dunbar, a lawyer from Richmond who is a strict constitutionalist and thinks the nation was founded on Christian beliefs, managed to cut Thomas Jefferson from a list of figures whose writings inspired revolutions in the late 18th century and 19th century, replacing him with St. Thomas Aquinas, John Calvin and William Blackstone. (Jefferson is not well liked among conservatives on the board because he coined the term “separation between church and state.”)

No Historians, Sociologists and Economists Consulted
Perhaps the worst aspect of the process of curriculum reform in Texas is that "[t]here were no historians, sociologists or economists consulted at the meetings, though some members of the conservative bloc held themselves out as experts on certain topics" (emphasis added). Playing with the minds of young people for partisan gain is reprehensible. Students deserve access to a wider variety of information. Curtailing knowledge cannot serve good ends.

Plagues and Famine Next? Gingrich and Huckabee Warn of Paganism, Abortion, and Same-Sex Marriage

Newt Gingrich and Mike Huckabee have been busy lately. Both men recently made the headlines after Gingrich called Sonia Sotomayor a "racist" and Huckabee said "Maria" Sotomayor would make the Supreme Court "extreme." Now, the two have turned to other evils (literally). At a 3-hour event held yesterday, Gingrich, Huckabee and other speakers condemned paganism, abortion, same-sex marriage, and (of course) President Obama.

Highlights and Commentary

* Paganism??? Yes! Gingrich: "I think this is one of the most critical moments in American history. . .We are living in a period where we are surrounded by paganism."

* Miracle from God's Hand = American Revolution = Proposition 8? Yes!

Huckabee told the audience he was disturbed to hear President Barack Obama say during his speech in Cairo, Egypt, on Thursday that one nation shouldn't be exalted over another.

"The notion that we are just one of many among equals is nonsense," Huckabe said. The United States is a "blessed" nation, he said, calling American revolutionaries' defeat of the British empire "a miracle from God's hand."

The same kind of miracle, he said, led California voters to approve Proposition 8, which overturned a state law legalizing same-sex marriages.

* Thomas Jefferson wanted "God" in government? Yes!

Gingrich . . . said the ties to religion in American government date to the Declaration of Independence, when Thomas Jefferson wrote
that men are endowed by God with certain inalienable rights.

Jefferson's reference to "inalienable rights" does not describe a government that enforces religious doctrine, which Jefferson did not endorse. Instead, Jefferson used that language to invoke the concept of "natural rights," which posits that certain rights exist outside of any constitutional or legislative instrument.

Conservatives, however, say they abhor the recognition of rights that do not arise from a "strict" interpretation of the Constitution or narrow understanding of "the" intent of the Framers (as if they left a paper trail of complete agreement). Using Jefferson's broad language and his embrace of natural rights, one could reasonably argue that "life, liberty and the pursuit of happiness" encompasses things like same-sex marriage, abortion, and paganism, regardless of the text of the Constitution or the framers' intent. In addition, the Constitution itself contains several important provisions that protect the generalized concept of "liberty" from infringement. This constitutional text supports recognition of a broader set of rights and liberties than conservatives usually acknowledge.

* God "Hearts" the USA more than any other place on the Earth? Yes! Huckabee: "I am not a citizen of the world . . . I am a citizen of the United States because only in the United States does citizenship start with our creator."

That's pretty powerful stuff, especially considering that "God is not a respector of persons." For purposes of law, the Constitution extends citizenship to "all persons born or naturalized in the United States and subject to the jurisdiction thereof." Neither the citizenship clause nor the Constitution mentions God or the "Creator."

By the way, the citizenship clause reverses the Supreme Court's decision in Dred Scott v. Sanford, which held that whether "slave" or "free" blacks were not "citizens" of the United States. Was this ruling divinely inspired?

Earth to Obama: Your Supreme Court Choice Is SUPPOSED to Galvanize Republicans

Democrats chose Obama because he promised change from eight years of Bush. This includes having liberal nominees for the federal courts. But many articles have portrayed Obama as seeking to avoid controversy with his choice for the Court.

But the judicial nomination process -- especially with respect to the Supreme Court -- is inherently a political battleground. Republicans know this, and so do Democrats. The political parties have known this from the start of the nation's history.

Judicial Appointments Have Always Been "Political"
Marbury v. Madison is the first case that law students read in about 99% of required constitutional law courses. The legal issue was fairly simple -- the plaintiff Marbury sought the delivery of his commission to sit as a justice of the peace of the District of Columbia. Madison, the Secretary of State, refused to deliver it at the request of newly elected President Jefferson.

The broader background facts, however, demonstrate that esteemed early Americans viewed courts in stark political terms. Before Jefferson took office, the lame duck Adams administration passed a law augmenting the size of the federal judiciary and rushed to fill the additional slots with Federalist Party nominees. Time ran out before some of the appointees could get their commissions, which they needed to sit as judges.

After Jefferson took office, he and the new Congress repealed the statute that enlarged the size of the judiciary and withheld the undelivered commissions because he did not want the Federalist Party nominees to sit in judgment of the Democratic-Republicans. In order to evade Supreme Court review, Jefferson shut down the Court for over one year. Despite this behavior, Jefferson is a exalted figure in United States history. Today, by contrast, politicians feign outrage over ideology -- that is, if their own party is not making the judicial nomination.

Politics Influences Judicial Appointments Today, and the Constitution Anticipates This Situation
Hearing the parties disingenuously assert that ideology should not play a role in the selection of judicial candidates is laughable. If both parties followed their insincere anti-ideology rhetoric, then Scalia, Thomas, Alito and Roberts would not sit on the bench, nor would Ginsburg and Breyer. Stevens and Souter are a bit more complicated. The normal script, however, describes both of these justices as Republican "errors," which supports my thesis that presidents pick candidates based on ideology.

If the Framers of the constitution did not want the process to have a political dimension, then they would not have allowed the President to make nominations and the Senate to confirm the appointments. The tremendous role of the President and Senate ensure that politics will continue to influence judicial selections.

Ideology Is Not Inconsistent With "Judging"
To say that a judge is "ideological" does not mean that a he or she lacks "judgment" or that he or she does not follow doctrine or principle. Conservatives have described Sotomayor as an ideologue, despite that fact that she has ruled against numerous civil rights plaintiffs and against the Center for Reproductive Rights in a case where she steered very closely to pre-existing precedent.

The Republicans have constructed their list of judicial nominee faux pas, and "gay marriage" has joined abortion as a potential judge-slayer. Articles in both the Washington Post and the Los Angeles Times outline the conservative (idelogical) strategy. For example, Republicans hope to go after Seventh Circuit Judge Diane Wood, if Obama picks her to replace Souter, because she dissented in a pair of cases in which the circuit upheld state bans on partial-birth abortion. But until recently, Woods' dissenting view mirrored Supreme Court doctrine on the issue, that is, until the five conservative justices -- minus O'Connor and plus Alito -- decided that Congress could ban the procedure. The majority's effort to distinguish precedent that undermined its conclusion was strained. Basically the contrary ruling happened because O'Connor left the Court, Alito replaced her, and Kennedy is squeamish about the procedure [Note: I am squeamish about medicine, which is exactly why I went to law school.].

Change Is Not More of the Same
From the very beginning of the Democratic primaries, I disagreed with my liberal colleagues who described Obama as a leftist dream come true. I suspect that many of them are beginning to see the light at this point.

Progressives, however, can push presidents to do things that they otherwise might not do. This is how broad political change has occurred historically. Unless liberals remind Obama that we did not vote for him in order for him to capitulate to Republicans or adhere to his own right-leaning instincts, then he will have no incentive to stop doing so.

Related Readings on Dissenting Justice:

Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy

Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"

Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"

Earth to Orrin Hatch: Even Conservative Judges Make Policy!

Talking Points on Souter Replacement?

Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor