Legal Commentary

Anticipating the Obama Administration's Civil Rights Agenda

By Jack M. Balkin

President Barack Obama's July 16, 2009 speech to the NAACP struck the right chord in its call for community vibrancy, but it failed to clearly state the administration's civil rights agenda. Obama's inspirational speech no doubt set a tone for community pride and responsibility. As I read through it, however, I could not help but think that he missed an excellent opportunity to clearly present his administration's civil rights policy goals and voice support for proposed bills that are pending before Congress. To this end the President might have commented not only on the NAACP's history and current American social blights but also on whatever vision for reform he shares with the NAACP.

The one substantive proposal the President discussed in detail was health care reform, and here he hit on an issue of common interest. Most recently the NAACP has focused its energy on HIV/AIDS awareness given the relatively higher prevalence of the disease in black communities. Health care is acutely important to Latino communities as well. In 2002, a non-profit national health consumer advocacy organization, Families USA, reported that 46 percent of Latinos living in the United States were uninsured. The same organization's 2007-2008 study found that while half of the 86.7 million Americans who lacked health care coverage were whites, there was a markedly higher incidence of uninsured individuals in minority communities: 55.1% of Latinos, 40.3% of African Americans, 34% of other racial and ethnic minorities; and 25.8% of whites. Even before the President's
speech, the NAACP had been working for a patient's bill of rights and an end to disparities in health care. In touching on this issue, Obama likely gained additional support at the grass roots level for his health care plan.

Racial profiling is another issue that President Obama might have addressed in his NAACP speech rather than having it thrust upon him following the arrest of Henry Louis Gates, Jr., a leading African American scholar. It is clear from the Obama's comments in his July 22, 2009 news conference that he has thought deeply about the topic. He forthrightly stated we, as a nation, are well aware of the "long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately." The NAACP, along with many other civil rights organizations like the Southern Poverty Law Center, the Anti-Defamation League, and the Urban league, have put much effort into ending the abuses of racial profiling. Obama might have, for instance, mentioned the "End Racial Profiling Act," which Senator's Russ Feingold (WI) and Congressman John Conyers, Jr. (MI) sponsored in the 110th Congress. I am told by a congressional insider, who asked not to be named, that Senator Feingold plans to reintroduce the bill this year. Several related topics of concern that are on the NAACP's agenda, such as disparate racial prosecution and length of incarceration, also warranted at least passing comment from the President.

Along the same lines, the President may have mentioned hate crimes legislation, which the House (H. R. 1913) and the Senate (S. 909, amended by S. Amnd. 1511, which is not yet available online) have passed in different forms and now await reconciliation through a Conference Committee. I helped develop the Senate version, and plan to blog
at a later time about problems with the final result. The NAACP's centennial celebration would have been an appropriate forum for Obama to wade into this issue and to help reconcile differences between Senator Edward Kennedy's and Representative Conyer's versions.

I would have also been interested in President Obama's views about Representative Barbara Lee's bill, which the NAACP's legislative agenda supports, proposing to end the denial of food stamps to otherwise eligible ex-felony offenders. (H. R. 329). This issue ties into a subject that two bloggers on this site, Jack Balkin and Sandy Levinson, have written about: felon disenfranchisement laws. States laws that disenfranchise ex-felons currently disqualify about four million Americans, 1 in 50 American adults, preventing 13% of black males to vote. The Civil Participation and Rehabilitation Act, which was introduced in the 105th Congress and continues to have the NAACP's support, would have prohibited states from abridging any criminally convicted persons right to vote unless the individuals were serving felony sentences in a correctional institution at the time of the election. (H.
R. 329). That too would have been an important subject for the President to weigh in on.

The NAACP was founded on the equality principles in the Declaration of
Independence. In his speech, Obama referred to the NAACP's grounding in justice "to cash the promissory note of America that says to our children, all God's children, deserve a fair chance in the race of life." His words were reminiscent of King's "I Have a Dream" speech, invoking "the architects of our republic" who "wrote the magnificent words of the Constitution and the declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men would be guaranteed the inalienable rights of life, liberty, and the pursuit of happiness." The vision is grand, but it lacks the critical detail of President Lyndon Johnson's Great Society programs. A civil rights agenda is an enormous undertaking costing much political capital, but it is one for which the President's leadership is essential. The NAACP along with other civil rights organizations can help flesh out the President's agenda, but it is the Executive Branch that can most forcefully articulate specific public goals.

Full post as published by Balkinization on July 24, 2009 (boomark / email).