DEI is just a pretext to an autocratic regime change. Think Stalinism and the hunt for "enemies of the state" among scientists, doctors, military brass in the USSR, think 100x McCarthyism. DEI and "wokism" are just convenient (and rather awkward for the oligarchs and MAGA) targets.
The forest - not the trees. Focus on what's important. The chances of turning this around are small and it will not be easy - but only possible if we focus on the bigger picture.
The actions you're describing appear to be directed at violating our freedom of association for the purpose of cementing violations of our freedom of expression, specifically to repress dissent regarding public issues. The people involved in such actions should consider James Madison's rebuke of President George Washington for publicly denouncing Democratic-Republican Societies in 1794.
Madison emphasized "the President" committed "perhaps the greatest error of his political life."
Madison also explained why: “no two principles can be either more indefensible in reason, or more dangerous in practice” than the pretense that our Constitution somehow gave public officials (public servants) the power to use “arbitrary denunciations” to “punish what the law permits” so that “the Govt. may stifle all censures” on its own “misdoings; for if [people exercising political power are allowed to be] the Judge [they] will never [accept that] any censures [by mere citizens are] just.” James Madison to James Monroe, 4 December 1794 at https://founders.archives.gov/documents/Madison/01-15-02-0306.
Madison emphasized that if public officials "can suppress censures flowing from one lawful source," then they "may [suppress] those flowing from any other [source]—from the press and from individuals as well as from Societies, &c." Id. If public officials have the power to suppress any viewpoint whatsoever, then they have the power to suppress all viewpoints any official may choose to target. Our Constitution precludes any such pretense or presumption.
Madison emphasized that President Washington's "denunciation of these Societies" (by which citizens exercised rights and freedoms secured by the First Amendment) was an "attack on the most sacred principle of our Constitution and of Republicanism." James Madison to Thomas Jefferson, 30 November 1794 at https://founders.archives.gov/documents/Madison/01-15-02-0303.
Jefferson subsequently decried as a "reign of witches" the abuses of power by federal judges (and other federal officials) discriminating and retaliating against people for their political viewpoints. Thomas Jefferson to John Taylor, 4 June 1798 at https://founders.archives.gov/documents/Jefferson/01-3002-0280.
One such judge was SCOTUS Justice Samuel Chase, who was impeached by the House and nearly convicted and removed from office by the Senate because Justice Chase abused his position to retaliate against people for their political speech, in part, by knowingly denying them due process of law. Those same tactics are being abused again now.
This calls to mind Thomas Paine in the dissenting opinion of Justices Stevens, Blackmun and O’Connor in United States v. Alvarez-Machain, 504 U.S. 655, 688 (1992):
As Thomas Paine warned, an “avidity to punish is always dangerous to liberty” because it leads a nation “to stretch, to misinterpret, and to misapply even the best of laws.” To counter that tendency, he reminds us:
“He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”
If we want to know what happened to freedom of association, we need to look back over about the past year. We need to look at the blatant violation of our freedom of association by a gang of federal judges, and the failure of nearly everyone in the legal and academic communities to say anything worth hearing about the blatant and dangerous unconstitutionality of such judicial misconduct.
An undisciplined gang of federal judges publicly pretended that something in our Constitution gave them the power to punish (regulate) political and religious "viewpoints" at "Columbia University." See https://freebeacon.com/wp-content/uploads/2024/05/letter.pdf. Their express objective was to regulate political and religious "Viewpoint(s)" on "the faculty and across the administration—including the admissions office."
The judges directly violated our freedom of expression by discriminating based on viewpoint of expression (specifically, religious and political viewpoints). Then, they violated our freedom of association by declaring their extrajudicial punishment of students who merely associate with Columbia students or faculty: "we will not hire anyone who joins the Columbia University community—whether as undergraduates or law students— beginning with the entering class of 2024."
For extremely valid and vital reasons, our Constitution (Article VI) emphasizes that federal employment can be denied based on the refusal or failure to express only one viewpoint: acknowledging that the duty of every public servant is to "support this Constitution." Article VI further emphasizes that federal employment cannot be impeded in any way for any pretext based (directly or indirectly) on any sort of religious test ("no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States").
The federal judges' blatantly unconstitutional extrajudicial punishment went even further: "Columbia" is "disqualified" (by a gang of federal judges in a mere letter) "from educating the future leaders of our country." Nothing in our Constitution authorized judges to impose any punishment on any "person" (and the Fifth Amendment emphatically precluded depriving any person of any liberty) except with all "due process of law."
The copious SCOTUS precedent being flouted by the judges emphasized principles such as those emphasized or re-emphasized in Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995) (citations omitted):
"It is axiomatic that [as a general rule] the government [judges] may not regulate speech based on its substantive content or the message it conveys. In the realm of private speech or expression, government [judicial] regulation may not favor one speaker over another. Discrimination [by judges] against speech because of its message is presumed to be unconstitutional. . . . When the government [a judge] targets not [only] subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government [judges] must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction."
SCOTUS emphasized that the foregoing compelled the conclusion "that the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression." The same principles and precedents preclude judges from discriminating against students based on their association (i.e., merely being at a university) with other students, faculty or administrators whose political or religious viewpoint(s) the judges just don't like.
“[T]he First Amendment prevents [any government employee] from discriminating [in any way] against speakers" (including judges, lawyers, law students or college students) "based on their viewpoint.” Shurtleff v. City of Bos., 596 U.S. 243, 247 (2022). Government employees absolutely “may not exclude” or punish any “speech” of any person to repress any “viewpoint.” Id. at 258.
Even Courts (and even more so mere individual judges) “may not prohibit” (much less inflict extrajudicial punishment on) constitutionally-protected “modes of expression and association” even by invoking the general “power to regulate the legal profession.” NAACP v. Button, 371 U.S. 415, 428-429 (1963). “[I]t is no answer” to the First Amendment that “the purpose of” any “regulations” (court rules or rulings or letters from judges) “was merely to insure high professional standards.” Id. at 438-439. First Amendment “liberties,” including “speech, press, or association” are “indispensable.” Id. at 439.
Courts (and especially individual judges) “may not, under the guise of prohibiting [even] professional misconduct, ignore” (knowingly violate) “constitutional rights” (as they did). Id. Courts (and especially individual judges) “cannot foreclose the exercise of constitutional rights by mere labels,” e.g., attorney, discipline, judge or so-called viewpoint diversity. Id. at 429. No “regulatory measures” (court rule or ruling or letter from judges), “no matter how sophisticated,” can “be employed in purpose or in effect to stifle, penalize, or curb” law students' or attorneys' “exercise of First Amendment rights.” Id. at 439.
Despite the obvious illegality and unconstitutionality of these federal judges' misconduct, almost nobody said anything worthy of their knowledge and abilities or our Constitution. Some did far worse. One law professor (Josh Blackman) had the audacity to declare the judges' unconstitutional discrimination and retaliation a "fitting tribute" precisely because the judges targeted a particular religious and political viewpoint (which they vaguely referred to as "anti-semitism"). See https://reason.com/volokh/2024/05/06/federal-judges-to-boycott-law-clerks-from-columbia-university-due-to-virulent-spread-of-antisemitism/. Professor Blackman even added, "Other than Judge Solomson, I do not see any Jewish judges who have joined this letter. There is still time. And I don't think this program needs to be limited to federal judges."
Another professor, Ilya Shapiro, practically gloated about judicial retaliation and discrimination being "expanded to Columbia after their failed response to the antisemitic encampments and disruptions and all that. Yeah, I support that. Jim Ho, the 5th Circuit judge is a friend of mine. . . . Jim Ho’s a mensch. And Lisa Branch from the 11th Circuit. I think they’re the only ones who publicly put their name on the boycott joined by a dozen district judges. . . . I support that because, first of all, it’s prospective." https://sotospeak.substack.com/p/ep-235-cancel-culture-legal-education (transcript).
A lot of what people were doing on some campuses was egregiously wrong and should have been opposed vigorously. But in no way were those wrongs (by private individuals) made any better by federal judges knowingly violating our Constitution to usurp powers that they KNEW were not only not given to them in our Constitution, but were expressly denied to them by particular provisions of our Constitution.
A lot of lawyers, law professors and judges allowed or encouraged the obvious misconduct of those federal judges--because they shared the same political or religious viewpoints. It's no wonder that many people now believe lawyers, law professors and judges will continue to do the same regarding other violations of our Constitution.
True. And for that we should blame another gang of judges—the six SCOTUS justices who lied about our Constitution (somehow) delegating power to the President to commit criminal abuses of power.
Does thy clause offend thee? Then pluck it out. These judges are following what is to them a higher law than the Constitution and the rule of law—it is reward your friends and punish your enemies.
But there can be no "higher law," and all federal judges promised they would never pretend there was any higher law. Our Constitution (Article VI) emphasizes that "the supreme Law of the Land" is, above all, our "Constitution" and then "the Laws of the United States which shall be made in Pursuance" of our Constitution "and all Treaties" and all "the Judges in every State shall be bound thereby." Moreover, "all executive and judicial Officers, both of the United States and of the several States" are "bound by Oath or Affirmation, to support this Constitution." These judges usurped powers that plainly were not delegated to them. They violated their oaths, and they violated our Constitution.
This is all true within an agreed framework of constitutional order. However, the Constitution is not self-enforcing and adherence to its requirements depends on the maintenance of norms that provide the political will to enforce them.
That will has eroded sufficiently to so vitiate the norms as for them to be toothless. Expecting otherwise has become the equivalent of bringing a toothbrush to a street fight.
It's true that no mere piece of paper or parchment is self-enforcing. James Madison made that point when he objected to devoting effort to drafting a bill of rights ("It may be thought all paper barriers against the power of the community, are too weak to be worthy of attention.") Even so, if we pay no attention to our Constitution, neither will judges. The principles in our Constitution will be, as John Stuart Mill accentuated in On Liberty, mere "dead dogma."
Moreover, criminal statutes can be enforced by real people. One of the facts material to proving a criminal violation of constitutional rights is that the perpetrator did so "willfully," i.e., knowingly. See 18 U.S.C. 242: "Whoever, under color of any law" or "custom, willfully subjects any person" to any "deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . shall be fined under this title or imprisoned not more than one year, or both." These judges actually KNOW that their conduct violates our Constitution.
I also think there are problems with the term "Latinx", and would generally not use it. But in this case, it's the term that the student residential community and apparently many of its members uses to describe itself. If Jeffrey Snyder were to substitute another term, not only would that be disrespectful of the community's right to choose the words by which it defines itself, but it would also be a less accurate way of describing the group.
DEI is just a pretext to an autocratic regime change. Think Stalinism and the hunt for "enemies of the state" among scientists, doctors, military brass in the USSR, think 100x McCarthyism. DEI and "wokism" are just convenient (and rather awkward for the oligarchs and MAGA) targets.
The forest - not the trees. Focus on what's important. The chances of turning this around are small and it will not be easy - but only possible if we focus on the bigger picture.
The actions you're describing appear to be directed at violating our freedom of association for the purpose of cementing violations of our freedom of expression, specifically to repress dissent regarding public issues. The people involved in such actions should consider James Madison's rebuke of President George Washington for publicly denouncing Democratic-Republican Societies in 1794.
Madison emphasized "the President" committed "perhaps the greatest error of his political life."
Madison also explained why: “no two principles can be either more indefensible in reason, or more dangerous in practice” than the pretense that our Constitution somehow gave public officials (public servants) the power to use “arbitrary denunciations” to “punish what the law permits” so that “the Govt. may stifle all censures” on its own “misdoings; for if [people exercising political power are allowed to be] the Judge [they] will never [accept that] any censures [by mere citizens are] just.” James Madison to James Monroe, 4 December 1794 at https://founders.archives.gov/documents/Madison/01-15-02-0306.
Madison emphasized that if public officials "can suppress censures flowing from one lawful source," then they "may [suppress] those flowing from any other [source]—from the press and from individuals as well as from Societies, &c." Id. If public officials have the power to suppress any viewpoint whatsoever, then they have the power to suppress all viewpoints any official may choose to target. Our Constitution precludes any such pretense or presumption.
Madison emphasized that President Washington's "denunciation of these Societies" (by which citizens exercised rights and freedoms secured by the First Amendment) was an "attack on the most sacred principle of our Constitution and of Republicanism." James Madison to Thomas Jefferson, 30 November 1794 at https://founders.archives.gov/documents/Madison/01-15-02-0303.
Jefferson subsequently decried as a "reign of witches" the abuses of power by federal judges (and other federal officials) discriminating and retaliating against people for their political viewpoints. Thomas Jefferson to John Taylor, 4 June 1798 at https://founders.archives.gov/documents/Jefferson/01-3002-0280.
One such judge was SCOTUS Justice Samuel Chase, who was impeached by the House and nearly convicted and removed from office by the Senate because Justice Chase abused his position to retaliate against people for their political speech, in part, by knowingly denying them due process of law. Those same tactics are being abused again now.
This calls to mind Thomas Paine in the dissenting opinion of Justices Stevens, Blackmun and O’Connor in United States v. Alvarez-Machain, 504 U.S. 655, 688 (1992):
As Thomas Paine warned, an “avidity to punish is always dangerous to liberty” because it leads a nation “to stretch, to misinterpret, and to misapply even the best of laws.” To counter that tendency, he reminds us:
“He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”
If we want to know what happened to freedom of association, we need to look back over about the past year. We need to look at the blatant violation of our freedom of association by a gang of federal judges, and the failure of nearly everyone in the legal and academic communities to say anything worth hearing about the blatant and dangerous unconstitutionality of such judicial misconduct.
An undisciplined gang of federal judges publicly pretended that something in our Constitution gave them the power to punish (regulate) political and religious "viewpoints" at "Columbia University." See https://freebeacon.com/wp-content/uploads/2024/05/letter.pdf. Their express objective was to regulate political and religious "Viewpoint(s)" on "the faculty and across the administration—including the admissions office."
The judges directly violated our freedom of expression by discriminating based on viewpoint of expression (specifically, religious and political viewpoints). Then, they violated our freedom of association by declaring their extrajudicial punishment of students who merely associate with Columbia students or faculty: "we will not hire anyone who joins the Columbia University community—whether as undergraduates or law students— beginning with the entering class of 2024."
For extremely valid and vital reasons, our Constitution (Article VI) emphasizes that federal employment can be denied based on the refusal or failure to express only one viewpoint: acknowledging that the duty of every public servant is to "support this Constitution." Article VI further emphasizes that federal employment cannot be impeded in any way for any pretext based (directly or indirectly) on any sort of religious test ("no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States").
The federal judges' blatantly unconstitutional extrajudicial punishment went even further: "Columbia" is "disqualified" (by a gang of federal judges in a mere letter) "from educating the future leaders of our country." Nothing in our Constitution authorized judges to impose any punishment on any "person" (and the Fifth Amendment emphatically precluded depriving any person of any liberty) except with all "due process of law."
The copious SCOTUS precedent being flouted by the judges emphasized principles such as those emphasized or re-emphasized in Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995) (citations omitted):
"It is axiomatic that [as a general rule] the government [judges] may not regulate speech based on its substantive content or the message it conveys. In the realm of private speech or expression, government [judicial] regulation may not favor one speaker over another. Discrimination [by judges] against speech because of its message is presumed to be unconstitutional. . . . When the government [a judge] targets not [only] subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government [judges] must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction."
SCOTUS emphasized that the foregoing compelled the conclusion "that the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression." The same principles and precedents preclude judges from discriminating against students based on their association (i.e., merely being at a university) with other students, faculty or administrators whose political or religious viewpoint(s) the judges just don't like.
“[T]he First Amendment prevents [any government employee] from discriminating [in any way] against speakers" (including judges, lawyers, law students or college students) "based on their viewpoint.” Shurtleff v. City of Bos., 596 U.S. 243, 247 (2022). Government employees absolutely “may not exclude” or punish any “speech” of any person to repress any “viewpoint.” Id. at 258.
Even Courts (and even more so mere individual judges) “may not prohibit” (much less inflict extrajudicial punishment on) constitutionally-protected “modes of expression and association” even by invoking the general “power to regulate the legal profession.” NAACP v. Button, 371 U.S. 415, 428-429 (1963). “[I]t is no answer” to the First Amendment that “the purpose of” any “regulations” (court rules or rulings or letters from judges) “was merely to insure high professional standards.” Id. at 438-439. First Amendment “liberties,” including “speech, press, or association” are “indispensable.” Id. at 439.
Courts (and especially individual judges) “may not, under the guise of prohibiting [even] professional misconduct, ignore” (knowingly violate) “constitutional rights” (as they did). Id. Courts (and especially individual judges) “cannot foreclose the exercise of constitutional rights by mere labels,” e.g., attorney, discipline, judge or so-called viewpoint diversity. Id. at 429. No “regulatory measures” (court rule or ruling or letter from judges), “no matter how sophisticated,” can “be employed in purpose or in effect to stifle, penalize, or curb” law students' or attorneys' “exercise of First Amendment rights.” Id. at 439.
Despite the obvious illegality and unconstitutionality of these federal judges' misconduct, almost nobody said anything worthy of their knowledge and abilities or our Constitution. Some did far worse. One law professor (Josh Blackman) had the audacity to declare the judges' unconstitutional discrimination and retaliation a "fitting tribute" precisely because the judges targeted a particular religious and political viewpoint (which they vaguely referred to as "anti-semitism"). See https://reason.com/volokh/2024/05/06/federal-judges-to-boycott-law-clerks-from-columbia-university-due-to-virulent-spread-of-antisemitism/. Professor Blackman even added, "Other than Judge Solomson, I do not see any Jewish judges who have joined this letter. There is still time. And I don't think this program needs to be limited to federal judges."
Another professor, Ilya Shapiro, practically gloated about judicial retaliation and discrimination being "expanded to Columbia after their failed response to the antisemitic encampments and disruptions and all that. Yeah, I support that. Jim Ho, the 5th Circuit judge is a friend of mine. . . . Jim Ho’s a mensch. And Lisa Branch from the 11th Circuit. I think they’re the only ones who publicly put their name on the boycott joined by a dozen district judges. . . . I support that because, first of all, it’s prospective." https://sotospeak.substack.com/p/ep-235-cancel-culture-legal-education (transcript).
A lot of what people were doing on some campuses was egregiously wrong and should have been opposed vigorously. But in no way were those wrongs (by private individuals) made any better by federal judges knowingly violating our Constitution to usurp powers that they KNEW were not only not given to them in our Constitution, but were expressly denied to them by particular provisions of our Constitution.
A lot of lawyers, law professors and judges allowed or encouraged the obvious misconduct of those federal judges--because they shared the same political or religious viewpoints. It's no wonder that many people now believe lawyers, law professors and judges will continue to do the same regarding other violations of our Constitution.
Again, true but. When the criminal class stops fearing getting caught, there’s more crime.
True. And for that we should blame another gang of judges—the six SCOTUS justices who lied about our Constitution (somehow) delegating power to the President to commit criminal abuses of power.
Does thy clause offend thee? Then pluck it out. These judges are following what is to them a higher law than the Constitution and the rule of law—it is reward your friends and punish your enemies.
But there can be no "higher law," and all federal judges promised they would never pretend there was any higher law. Our Constitution (Article VI) emphasizes that "the supreme Law of the Land" is, above all, our "Constitution" and then "the Laws of the United States which shall be made in Pursuance" of our Constitution "and all Treaties" and all "the Judges in every State shall be bound thereby." Moreover, "all executive and judicial Officers, both of the United States and of the several States" are "bound by Oath or Affirmation, to support this Constitution." These judges usurped powers that plainly were not delegated to them. They violated their oaths, and they violated our Constitution.
This is all true within an agreed framework of constitutional order. However, the Constitution is not self-enforcing and adherence to its requirements depends on the maintenance of norms that provide the political will to enforce them.
That will has eroded sufficiently to so vitiate the norms as for them to be toothless. Expecting otherwise has become the equivalent of bringing a toothbrush to a street fight.
It's true that no mere piece of paper or parchment is self-enforcing. James Madison made that point when he objected to devoting effort to drafting a bill of rights ("It may be thought all paper barriers against the power of the community, are too weak to be worthy of attention.") Even so, if we pay no attention to our Constitution, neither will judges. The principles in our Constitution will be, as John Stuart Mill accentuated in On Liberty, mere "dead dogma."
Moreover, criminal statutes can be enforced by real people. One of the facts material to proving a criminal violation of constitutional rights is that the perpetrator did so "willfully," i.e., knowingly. See 18 U.S.C. 242: "Whoever, under color of any law" or "custom, willfully subjects any person" to any "deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . shall be fined under this title or imprisoned not more than one year, or both." These judges actually KNOW that their conduct violates our Constitution.
Aren't fraternities and sororities affinity groups too?
Yes, that's one of the points that I'm trying to make. All student organizations are effectively *affinity groups,* including frats and sororities
You lost me at Latinx
I also think there are problems with the term "Latinx", and would generally not use it. But in this case, it's the term that the student residential community and apparently many of its members uses to describe itself. If Jeffrey Snyder were to substitute another term, not only would that be disrespectful of the community's right to choose the words by which it defines itself, but it would also be a less accurate way of describing the group.
Precisely! That's an excellent summary of my reasoning here. On Latinx as a term, Amna and I have weighed in on its many limitations here:
https://washingtonmonthly.com/2021/05/01/does-the-term-latinx-advance-social-justice/
Everything I've seen says Latinos and Latinas do not care for the word Latinx, by huge margins.
Thanks for the link. Good piece.