Show Transcript

ELIZABETH WYDRA: Hello everyone. I’m Elizabeth Wydra President of the Constitutional Accountability Center. Thank you so much for joining us for this episode of CAC’s Purple Chair Chat series. We normally would be coming to you from our Washington DC offices and our iconic CAC. Purple wing chairs–thus the name Purple Chair Chat. But, like so many of you across the country we have been working from home. During the covid-19 pandemic and we continue to hope that all of you are staying safe and sane and well at home as we weather these difficult times. So the Purple Chair Chat series talks about the important constitutional, political, legal issues of the day. And today, we are going to be talking about something that I’m super, super excited about and that’s the fabulous new Netflix documentary series, “Amend” hosted by Will Smith, which is all about the Fourteenth Amendment to the Constitution and the extraordinary way that it changed our nation when it was added to the Constitution after the Civil War. People might remember the 13th Amendment is what removed the stain of slavery from our Constitution after the Civil War ensuring that the institution of chattel slavery was ended across the country. But it left open the question of what does it mean to be free? What does it mean to be an equal citizen? Amend and the Fourteenth Amendment tells that story. Here’s a clip from the trailer.  

ELIZABETH WYDRA: So in many ways the Fourteenth Amendment is the Constitution that we all think about when we think about the good things about the Constitution it guarantees equality. It guarantees Liberty. It guarantees due process of law. For the first time writes the Declaration of Independence values into the Constitution. They weren’t really there before. 

And “Amend” tells the story of both the promise of the 14th Amendment and the ways in which it has failed to live up to that promise in deeply tragic, often brutal ways. And, it tells this story through the lives of real people activists and advocates and people who are impacted by the Fourteenth Amendment and it also uses the voices of a number of today’s foremost constitutional scholars and advocates and I am so thrilled that we are joined this evening to talk more about the film of the Fourteenth Amendment by two of those experts featured in the film: Melissa Murray and Karen Tumlin.  Both of whom I’ve had the pleasure of knowing and working with for quite some time and I’m so thrilled that they’re with us tonight. I’ll just give brief bios because I could talk about them and how awesome they are for the whole entire Purple Chair Chat. So I’ll just say quickly that Melissa Murray is the Frederick and Grace Stokes Professor of Law and NYU Law School and the Faculty Director of the Birnbaum Women’s Leadership Network. She’s a leading expert in family law, constitutional law, reproductive rights and justice. You probably recognize her from her many appearances on MSNBC and other shows or she gives brilliant legal commentary as well as amazing fashion.  

We’re also joined by Karen Tumlin someone who’s the founder of the Justice Action Center and a nationally recognized impact litigator focusing on immigrant rights who I have had the pleasure of working with and the trenches particularly during her time. I’m at the National Immigration Law Center. She’s successfully litigated numerous cases of national significance including a challenge that trunk administration’s effort to end the DACA program the Trump Muslim Ban as well as a constitutional challenge to Arizona’s notorious anti-immigration law SB1070. Thank you both so much for joining us tonight.  

Now our time is short. So I’ll start with Melissa so amend Starts by laying out the story of the 14th Amendment and how it worked to protect. Even if it fell far too short far too frequently against race discrimination and in the episode in which you are featured most heavily they talk about the way that those arguments using the 14th amendment’s protections against race discrimination were used by advocates for gender equality. And the way in which those arguments against race discrimination we’re used to say that gender discrimination is akin to race discrimination and should also be protected against under the Fourteenth Amendment. Can you talk a little bit more about that relationship and that pivot. 

MELISSA MURRAY: Sure. I mean, it’s a terrific point to enter on, you know, one of the things that the documentary does so brilliantly is to really show how the Fourteenth Amendment is a spine for not only the introduction of citizenship into the Constitution but the expansion of citizenship to a range of constituencies that might not have been contemplated even at the time the 14th Amendment was ratified. The Fourteenth Amendment doesn’t really speak to women at all. But of course, we know that through the efforts of a number of really fantastic women. It has been interpreted to extend to prohibit discrimination on the basis of gender as a constitutional matter and one of the first places where the relationship between the 14th Amendment and the racial equity arguments that were immediately advanced under the Fourteenth Amendment and gender discrimination come into play is through the work of Pauli Murray. And Pauli Murray is probably the civil rights advocate—the most important civil rights advocate— that you’ve never ever heard of and right now she’s undergoing something of a renaissance but for a very long time her legacy really languished, overlooked by so many and now it’s really coming to the fore but early on she talked about the idea of Jane Crow, which she related to the idea of Jim Crow and she noted that for women and for women of color in particular there was not just the stain of race and racial discrimination that you had to contend with but also the double prospect, the double disadvantage of also being a woman. So, she really talked about using the same logic of the Fourteenth Amendments racial equity arguments to then pursue a campaign of gender equity and she’s doing this early on into her career. In the 1940s, she first offers this argument as part of her third year paper at Howard University School of Law. She is dismissed handily by her professors on many of whom are some of the leading lights of the Civil Rights Movement, including Thurgood Marshall and Spottswood Robinson III, but they eventually come around to her way of thinking and they incorporate her arguments into their arguments in Brown versus Board of Education. They don’t necessarily give her credit for it. But she is a shadow architect of that movement and then later when Ruth Bader Ginsburg begins litigating gender discrimination cases under the Fourteenth Amendment. She explicitly nods not only to Pauli Murray, but also to Dorothy Kenyon and explicitly acknowledges their contributions to advancing this understanding of the 14th Amendment.  

ELIZABETH WYDRA: I’m so glad you brought up Pauli Murray both now and in the documentary because you’re absolutely right that she has been an unsung hero of this movement. But I think you’re right. Her praises are properly being sung and one of the ways that I thought the use of Pauli Murray as a storyteller not just using her arguments, but actually using her as a storyteller of the Fourteenth Amendment story in the “Amend” film is because she talks as you said about this clear intersectionality. She says they read her words in the film for have her words read out about the race and gender equality fights meet within her and then you add on to that the ways in which also her struggle to authentically live her gender identity weighs in on that as well. Can you talk a little bit more about the intersectionality fight in historical context? 

I love that they had Kimberlé  Crenshaw in the film who you know as is properly noted by Britney Packnett Cunningham in the documentary intersectionality has long been a reality and part of the argument but that term was really coined and brought into modern legal theory by Kimberlé Crenshaw and I love in the film was she Brittany Packnett Cunningham was talking about this and they cut to Kimberlé Crenshaw can you talk a little bit more about that in historical context? 

MELISSA MURRAY: No, it’s a really terrific point. The theory of intersectionality is one that Kimberlé Crenshaw advanced in the legal Academy in the 1980s and 1990s, but the idea of intersectionality as you say really does live in Pauli Murray herself, and she identifies early on that she is not simply stymied by virtue of being a woman. Although Jane Crow is very much a part of her life. She’s also stymied by virtue of the fact that she is a Black woman and she talks about this. She was a student at Hunter College at the time. It’s an all-female institution, but she feels that she is subordinated by her race by her background. She’s from the south. These are very cosmopolitan city dwellers in New York, and he or she is a kind of country bumpkin and she feels a bit out of her depth, but when she goes to Howard law school, which is a historically Black college and university she isn’t out of place because of her race, but she’s the only woman in her class and she certainly feels the weight of her gender isolation and that way and then through all of this as you’ve mentioned she’s struggling deeply with the question of her own gender identity and I’ve been using the pronouns she and her because those are the pronouns that she is used throughout her life. Again, you know, she’s coming up at a period in time where you know, we aren’t thinking in terms of day there’s and she struggles with that too, but some of the argue that it might actually be more accurate and more true to the way that she lived her life to speak of her in the sort of third person plural like it. She think she did not necessarily feel completely at home in her identity as a woman. I was constantly pressing those boundaries. So there are a lot of intersections in that gender identity, gender race. Class is a big part of her struggle. She is rubbing elbows with a lot of very prominent people Eleanor Roosevelt certainly, but she’s often on the precipice of poverty most of her life struggling to make a living because of the rampant discrimination. She experiences in the employment market her inability to get work as a lawyer her ability to find work that she finds meaningful as a lawyer. So I like it is a struggle for her on a number of different levels. 

ELIZABETH WYDRA: You know, there are lots of moments that brought tears to my eyes watching these episodes of “Amend” and I have to say, seeing Laverne Cox say Pauli Murray. We see you. I thought was incredibly powerful in the film. So when we talk about intersectionality, we talk about the ways in which multiple systems of oppression can impact people and one of those systems of oppression that is grappled with in the Fourteenth Amendment and in the documentary is immigration status. And Karen Tomlin, you are both nationally recognized immigration expert and an expert in the film talking about immigration in the Fourteenth Amendment and the Fourteenth Amendment in so many ways has incredible protections for immigrants. From setting out Birthright citizenship that grants citizenship on equal status if you are born in this country. No matter  your parents are new immigrants or Native Americans are long-standing citizens of the United States. It doesn’t matter. If you’re born here, you’re born an equal citizen to the choice to use the word persons instead of citizens, when giving clear protection for equal protection of the laws and due process. Can you talk about some of the ways in which the 14th amendment has been used to make better the lives of immigrants and how that fits into your work. 

KAREN TUMLIN:Yeah. Absolutely. It’s so nice to be with you Elizabeth and Melissa and love that we’re talking about amend and especially Pauli Murray. I think the Netflix series itself is, you know, it’s basically the “Schoolhouse Rock” for the Fourteenth Amendment. So I’m glad we’re finally getting to learn about the unsung heroes and sheroes that we should have known about all along. So, the you know the Fourteenth Amendment You think about immigration? It should be real clear or for the reasons that Elizabeth said right? Birthright citizen. It’s not like there’s any wishy-washy language. It says if you’re born here, you’re a citizen but yet we have continued to see fights around what is the true meaning? Well, they didn’t really mean undocumented immigrants that couldn’t possibly be the case, even though it has always in fact been the Constitutional meaning and then on the same hand write the equal protections causes around due process are very specifically to all persons. It shouldn’t be a lot of room for dispute here that person means everyone and when we want to talk about citizens, we talk about citizens in the Constitution and we certainly don’t do it in the Fourteenth Amendment. What it has meant to my work and I think that the documentary series is so apt when it concludes with the immigration issue. It calls it the promise you no question mark. Are we going to get there? Are we going to get to a place where it is actually clear that all persons means all persons regardless has of your immigration status or we going to have to continue to fight. So I’ll give you a quick example Plyler versus Doe is the Brown versus Board of immigration of the Supreme Court. It comes after Brown v. Board, of course, but it says all children undocumented children included have a right to a K-12 education and that’s a fundamental and important court ruling but it leaves you asking, ‘Why did we have to ask?’ And the analysis of that what you’re taught in law school is: “Well, it isn’t just because their immigrant kids. It’s a plus and we’re taught the reason why the Supreme Court gets there is well, it isn’t just education is special and it’s a very important interest and so it’s only because of that plus that we had to Due Process Clause that you get to the place where we’re protecting. And so, you know my work and the work of folks that I admire is to get the place where it’s a given that when we talk about all persons we mean regardless of the country you were born in. 

ELIZABETH WYDRA: You know, it’s so interesting that you talk about how clear the language of the 14th Amendment is when you’re talking about its protections for non-citizens. And you know, there are some things that are you know, when you’re when you’re a lawyer and talk about the Constitution there thumb some things that are harder to make the argument for some things but like the question, especially about Birthright citizenship and whether it applies to immigrants, whether due process applies to non-citizens ,like those things were specifically talked about when they were drafting the Fourteenth Amendment and so we know that the 14th amendment was intended to give due process protections to non-citizens. We know that they thought that removing someone was banishment which was thought to be a terrible punishment and obviously deserving of due process before you inflict that deprivation of Liberty. But one thing that Episode 6, the episode in which we get to see your expert commentary shows is that despite this clear promise of the Fourteenth Amendment, it has been denied over and over and over again. And I think it was very powerful the way the film laid out that the strategies that have been used to oppress intimidate, immigrants have remained remarkably and terribly consistent since we’re talking about the 19th century and Chinese immigrants up to today, whether it’s separation of families, exploitation of labor, forced removals, you know, these strategies have remained the same. You know, what do you make of that? That’s it’s you know, as I said earlier in a positive way, this film brought me to tears many times and one of those moments in a terrible way was that scene that was played of a child who is being torn apart from his parents and as you say children being used as weapons.  

KAREN TUMLIN: I think that’s such an important observation Elizabeth the consistency of the terror, the consistency of how our laws used to discriminate. I think that on the piece, I want to point out about family separation or what I would say was the Trump Administration using children as Weapons within the immigration system. Here’s the flaw of the 14th Amendment for immigration the federal government can discriminate so it protects against state and local actors from discriminating. But because the federal government Reigns supreme or has what we call plenary power over immigration. They can make distinctions between how they treat green card holders or undocumented immigrants. There are some boundaries on that but they are not the robust boundaries of the Fourteenth Amendment. And so that’s how you can allow the abuse that we saw in family separation, how you can allow without having an instant check and ultimately there was a check and it was a check of the Constitution on that family separation, but that’s how you can start down that path. And so when I look at the Netflix series together, I think what we’re really looking for is whether it’s in transgender rights or immigration is when we get to the place where our laws cannot be used as a vehicle to discriminate then we’ve gotten to all persons and sadly were not there yet at least not in the sphere of immigration. 

ELIZABETH WYDRA: Yeah, and it’s you know, I think that’s you know that search for the legal protection and recognition of just humanity and that’s you know, I think that that’s where the word persons is so important and as you said the federal government’s ability to discriminate is also has been used as a fear tactic to you know, trying to say that National Security threats are brought by immigrants and particularly immigrants of color. I think it’s very important that the documentary makes that link between the ways in which white supremacist systems have worked to perpetuate the oppression of the institution of slavery through Jim Crow laws, and there has been a through line from that to the way that this country has often treated immigrants of color by, you know, dehumanizing. Or you know, I thought that it was a very powerful end to the series as you said that they ended with immigration and this question mark. And you know, it’s I think I want to ask both you and Melissa based on the work that you do, how do you how do you answer that question mark about the 14th Amendment? Does it inspire you? What gives you hope? And that there’s a positive answer to that question. Karen do you want to go first? 

KAREN TUMLIN: Sure, I can tell you what gives me hope so there’s a there’s a short clip towards the end of episode six. It’s a group of my clients who are DACA recipients walking out at the United States Supreme Court after their hearing and Elizabeth and her colleagues have done so much to work on behalf DACA as well and they walk out of the Supreme Court and they greet the rally that is there and they begin to chant home is here and the rally chants back at them. And in that moment, I was walking behind them with the lawyers. I saw organizing and strategy of immigrant youth outside of the court meeting colliding fully within side of the court and that moment of course brought me to tears in watching this series, but it fills me with hope because I have had a front row seat to watching those leaders push for more and to do so and Murray would be proud of, in a way that is intersectional and bringing their queer identity with them and that makes me very hopeful for where we’re going.  

MELISSA MURRAY: So I will say Elizabeth and yeah, I think the stories that are told here are incredibly powerful. They’re incredibly inspirational but some parts of the documentary are quite frankly deeply pessimistic and deeply disturbing and I think if you are someone who’s been trained in the law, like a lot of people who will watch this docuseries will be, I think one of the things that does is really diminish your faith in the prospect of courts as agents of changed and I think that is unfortunate. I mean one of the first things that the documentary makes clear is that the promise of the Fourteenth Amendment is extinguished almost before it’s even had a chance to get started because of a court that is deeply, deeply conservative and not I don’t mean conservative and sort of the way we think of that today, but you know, these are justices installed by a Republican president, but who do not necessarily adhere to the vision of reconstruction that’s being advanced through the 14th amendment by The Radical Republicans at the time. And so, you know, you see the Privileges or Immunities Clause being shut down, limiting the power of the federal government to police the states and to really get the states in line. You see the 14th Amendment gets sidelined in a way that allows a sort of de facto system of chattel slavery to re-emerge in the South and to really sort of get traction and continue and persist for over two generations. And so that I think is a cautionary tale and you know, we are in a moment now where I think it would be very difficult to say that there is an opportunity of faith in the courts as of vindicators of rights and there is a moment in the documentary where they talk about the Warren court and the work that the Warren Court does and you know for gender the Brennan at the Berger court, but for much of the courts history it really has been a more regressive institution than it has been Progressive and certainly I think people would say we are perhaps moving into a period where we are likely to see the courts as more regressive in terms of a progressive agenda. And certainly I think that makes the kinds of things that Karen is talking about the Grassroots organization and activism even more important but it also signals the limits of those kinds of efforts because it doesn’t matter if we advance a progressive agenda in the legislature or on the ground If It ultimately gets to the court where it’s snuffed out. 

ELIZABETH WYDRA: Absolutely, you know, I think that that is a lesson for today that was told very well through history in the film without saying it they made a very strong argument that who sits on the courts really matters and you can get an amendment drafted past ratified as was the case with the Fourteenth Amendment and like you just said Melissa, it can be snuffed out in large measure by the courts, but one thing that gave me hope that at the end of the “Amend” documentary series was Larry Wilmore talking about the fact that the words of the 14th Amendment are broad, are progressive and they belong to us and you know, whether the courts recognize it in that moment or not. If we together if ‘we the people’ make a commitment to each other to make those words meaningful to make them a reality for all in a deeply impactful way in people’s lives. We can do that. We have the power to do that and the fact that the fourteenth amendment’s promise has failed to be a reality is a challenge to us and we as each generation need to recommit to meeting that.  

So thank you so much for joining us to Melissa and Karen. We are deeply grateful for the work that you do every day and for your insights today in this conversation and as always but especially on the 14th Amendment, please those of you who are watching if you want to learn more about the 14th Amendment go to our website theusconstitution.org. You can learn everything you ever wanted to know about the Privileges or Immunities Clause, how you can make a progressive 14th Amendment originalist argument for marriage equality and more on our website. Thank you so much for joining us to Melissa and Karen and to all of you watching at home. Thank you and be well.