News & Commentary

The 19th Amendment inked women’s suffrage into American history, a culminating moment in an effort to win political power. But as the 100th anniversary of its ratification fast approaches, it’s essential to reflect on who the 19th Amendment excluded in practice if not on paper, and what the popular historical record of this movement leaves out. “Black women know as 1920 unfolds that many of them are still going to be disenfranchised,” professor and author Martha S. Jones tells At Liberty. “That’s not a secret. That’s an open premise of the 19th Amendment. Jones joined the podcast this week to discuss how the history of voting rights has led us to this moment. She is the Society of Black Alumni Presidential Professor and a professor of history at Johns Hopkins University. Jones is also the author of the new book, Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All. The ordained heroes of women’s suffrage — such as Elizabeth Cady Stanton, Susan B. Anthony, and later Alice Paul — often tossed out the leadership and movement-building of Black women. The absence of those voices from the popular historical record has obscured the centuries-long role that Black women have played, and continue to play, in expanding voting rights for all. In writing a book that attempts to capture “200 years of voting rights history in the U.S. from the perspective of African American women,” Jones says, she realized “that there really is no golden age of voting rights in the United States.” “What was remarkable and important for me to discover was that the history I was telling lives inside many of the women whom we recognize as of our own movement, like Stacey Abrams or Ayanna Pressley,” says Jones. “When I heard Stacey Abrams crediting Shirley Chisholm, Barbara Jordan, Sharon Pratt Kelly, Sojourner Truth, and Harriet Tubman as helping to shape her political consciousness in her imagination, I realized there really was a story to tell.”

Six months into the COVID-19 pandemic, it’s clear that among those suffering the most are those who typically get paid the least: the “essential workers” who tend to the sick, care for our elders, grow our food, stock our supermarket shelves, and operate the public transit necessary for these and other frontline workers to get to their jobs. These mostly Black and Latinx workers, also disproportionately women, already live in a state of economic precariousness. For months now, they have been asked to literally risk their lives for their paychecks. In this way, the pandemic has further exposed and deepened our nation’s fault lines of racial and gender inequality. Among the frontline workers in harm’s way are the nearly 1 million people who continue to serve up Egg McMuffins, Big Macs, and fries at the nation’s 14,000 McDonald’s restaurants. Despite the company’s vast resources — it has already paid nearly $2 billion to shareholders since the pandemic began — McDonald’s has rewarded the sacrifices of its low-wage cashiers and cooks with indifference to their safety and — when they and their loved ones get sick — refusal to grant job-protected,

One of the first and most fundamental safety precautions during the COVID-19 pandemic is to shelter in place. But that may soon become impossible for millions of people as eviction moratoriums begin to lift across the country. Tens of millions have lost their jobs due to the pandemic itself, and many are still unemployed.   Kansas City resident Tiana Caldwell is one of them. In March, she was laid off from her job teaching business skills at a local community college. Her husband, Derrick, lost his job around the same time. Both had dedicated years of hard work to their jobs, which they loved, but in the face of this global pandemic, that wasn’t enough.   The family would have lost their home if not for the Jackson County moratorium on evictions. The moratorium brought them some peace of mind, but that peace was limited. It expired on May 31, allowing landlords to resume evictions of those unable to afford their monthly rent. Now Tiana, Derrick, and their 13-year-old son A.J. may soon be without a roof over their heads. Nationally, many more families also face the possibility of eviction after the federal moratorium expired on July 25. 

When the Continental Congress appointed Benjamin Franklin as the first Postmaster General, our nation had not yet been founded. The Bill of Rights would not be drafted for another 16 years. Yet nearly two and a half centuries later, the United States Postal Service’s ability to provide every person in America with a private, affordable, and reliable means to exchange information transformed it from a mail delivery service into a baseline for the exercise of American constitutional rights. Recent news that the Postal Service’s financial condition is being used as a pretext for degrading its service – including allowing mail to go undelivered for days and scaling back the hours of or closing post offices – threatens to degrade that constitutional baseline as well. In an early response to novel coronavirus, Congress allocated $10 billion to help shore up the Postal Service’s finances, but the Treasury Department has held up those funds without explanation. Instead, Postmaster General Louis DeJoy is preparing to make dramatic service cuts, treating the USPS like a private business facing bankruptcy. This should draw universal condemnation. The U.S. Postal Service was never a business. It is an essential government service guaranteed to the American people by the U.S. Constitution and it should be preserved accordingly. To understand how the Postal Service became so central to America’s national identity and the actualization of our constitutional rights, one needs to examine its history. In the earliest days of our nation, Americans were more likely to identify themselves as citizens of their home states than of the United States. For our nation’s first generation, the Postal Service was often the only reminder the U.S. had a federal government at all. As America expanded westward, the Postal Service enabled new states like California, which otherwise would have been isolated by America’s vast Western Territories, to forge its connection with the rest of the country. Ultimately, the roads, rail stations, and rural post offices that were built or subsidized by the Postal Service drove our nation’s physical unification. Even more important were the nationwide communications the Postal Service enabled. Prior to the invention of the telegraph, the absence of a local post office made exchanging ideas with the rest of the country impossible. In America’s early decades, one of the most vital steps taken by newly established towns was to request a post office. Recognizing that receiving information was as critical to our national unity as communicating it, Congress mandated the Postal Service deliver newspapers for free or at a minimal cost. As George Washington wrote in 1788, “I entertain a high idea of the utility of periodical publications … spread[ing] through every city, town and village in America. I consider such easy vehicles of knowledge, more happily calculated than any other, to preserve the liberty, stimulate the industry, and meliorate the morals of an enlightened and free People.” Low-cost newspaper delivery endured until the Congressional Postal Reorganization Act was adopted in 1970. Prior to the 1850s, the delivery of free newspapers and of mail to isolated frontier towns caused the Postal Service to lose money. It likewise strained the Postal Service’s financial resources when, in the mid-19th century, it decided to charge the same price for all first-class letters sent within the U.S. regardless of their destination. These choices were possible then because the Postal Service was not burdened with financial self-sufficiency. Its sole mandate was to enable everyone in America to communicate affordably. In that respect, the Postal Service’s public benefit mission is more akin to the Armed Forces’ than FedEx’s, and no one is suggesting the military should pay its own way or face bankruptcy. Another important piece in the Postal Service’s preservation of civil liberties came in 1877, when the Supreme Court, in Ex Parte Jackson, ruled that “No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail.” As a result, the privacy of communications sent via the USPS is constitutionally guaranteed. Good luck getting that with Gmail. The year 2020, perhaps more than any other in American history, illustrates why Postal Service’s centuries-old mission must be upheld. The U.S. Census Bureau, which is presently racing to complete the 2020 census, is relying on the Postal Service for much of its data collection. Government health agencies are depending on the USPS to provide critical COVID-related health information and supplies. Elected officials are using the Postal Service for cost efficient and sometimes free communications with their constituents, including about support programs during the ongoing economic crisis. And as we approach the November election, state and local election boards will be relying more than ever on the USPS to conduct voting by mail, which is critical to guaranteeing the right to vote during the ongoing pandemic. Troubling though it may be, it is impossible not to worry that our unpopular president, who has already called for the delay of his own re-election vote, is seeking to degrade the Postal Service’s ability to timely deliver ballots, particularly in communities that are unlikely to vote for him. Earlier this year President Trump called the Postal Service “a joke,” but there is nothing funny about the steady degradation of an institution that breathes unimaginable life into our constitutional rights. At this critical time, Congress should do everything in its power to ensure the USPS remains vibrant and strong, and that burden falls largely on the Senate Committee on Homeland Security and Government Affairs and its chair, Sen. Ron Johnson, and the House Committee on Oversight and Reform, and its chair, Rep. Carolyn Maloney. Every member of Congress and every American, regardless of political party or philosophy, should be grateful that for 245 years “neither snow, nor rain, nor heat, nor gloom of night stays the [Postal Service’s] couriers from the swift completion of their appointed rounds.” We should ensure that “nor politically-motived cost savings” is added to that list.

This piece originally appeared in USA Today. As an organization dedicated to civil liberties, civil rights, and the rule of law, we at the American Civil Liberties Union believe that the government has both the authority and responsibility to enforce its laws — laws that promote justice, equality, and the general welfare. In recent weeks, the actions of federal agents have shown us all that the Department of Homeland Security isn’t capable of acting consistently with the Constitution, and should no longer exist in its current state. The scenes unfolding in Portland, Oregon, and elsewhere are a reminder of the red flags many have raised about DHS throughout its history: that its powers are too great, and that it lacks the oversight and management to be effective. We can preserve our freedoms and our security better by dismantling DHS and beginning anew. People across the political spectrum watched in disbelief as federal agents were deployed to American cities — despite objections by mayors and governors — to escalate violence against protesters. Paramilitary forces abducted people exercising their constitutional rights in Portland, placed them in unmarked vehicles, and took them to undisclosed locations. The tactics deployed by DHS agents are unlawful and shocking, but they are no surprise: Back in 2002, we at the ACLU called the initial blueprints for the behemoth bureaucracy “constitutionally bankrupt.”

“If you want to know the law, you must look at it as a bad man does, who cares only for the material consequences,” wrote legendary Supreme Court Justice Oliver Wendell Holmes, “Not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”    Donald Trump is a Holmesian bad man, and an even worse president, pushing the bounds of corruption and authoritarianism, unbound by norms, the rule of law, a sense of shame, or even care for others. To deal with such a bad man and bad president — one who truckles to adversaries like Russian President Vladimir Putin, flouts Congress, swims in self-enrichment, and fails to take meaningful action as Americans die by the tens of thousands on his watch — will require more than the ordinary processes, checks and balances, and honor that have guided and constrained other presidents.   Fortunately, Trump’s most recent egregious trial balloons (or warning shots) about subverting the election drew pushback from even his supporters, such as the co-founder of the Federalist Society, who called Trump’s tweet “fascistic” and “itself grounds for … immediate impeachment.” But his regime’s many efforts to repress the vote and discredit and undermine the election continue unchecked, abetted by Senate Majority Leader Mitch McConnell’s refusal to take up election security and funding bills passed by the House, and his Postmaster General’s ongoing sabotage aimed at impeding the mail-in voting that will surge because of the pandemic Trump has exacerbated.   Calm may return now to Portland, Oregon, as Trump has begun to withdraw the federal paramilitary storm troopers who just recently were sowing chaos, seizing protesters off the streets, and using force, such as rubber bullets and tear gas, without probable cause or the consent of local authorities. But Trump and his confederates, including Attorney General William Barr and Acting Homeland Security Secretary Chad Wolf, continue to threaten this unconstitutional use of force in even more cities, ginning up images for Trump’s campaign ads and perhaps even road-testing tactics to remain in power in the event Trump loses the presidential election.   This is “performative authoritarianism,” according to historian Anne Applebaum. “That these tactics are not ‘totalitarian’ doesn’t make them legal, acceptable, or normal … Citizens’ rights [were] violated in Portland. People have been hauled off the streets into unmarked vehicles.”   Trump has shown again and again that, as a Holmesian bad man, he will do whatever he can get away with. It is a lesson Trump learned from his lawyer and mentor, Roy Cohn, as testified to by his lawyer and fixer Michael Cohen (now “Individual-1’s” nemesis). The tactics were honed during Trump’s career as a discriminatory and abusive developer and landlord: When dealing with tenants, contractors, and investors, do not honor your agreements and legal, let alone ethical, obligations. Don’t worry whether you have a legitimate cause of action or defense. Rather, flout norms and fairness, manipulate deadlines, drag out payments and processes, force litigation, make remedies and responses costly and cumbersome, overwhelm with falsehoods and fatigue, grind people and institutions down with the system — in short, break the law as you please, while using the law and legal procedures themselves as tools of abuse and evasion of accountability.   Civil society groups like the ACLU and Protect Democracy have been doing what they can through public denunciation and lawsuits that challenge Trump’s abuses in Portland and nationwide, exposing illegal surveillance of Americans and Trump’s use of unaccountable officials such as Wolf. But it is not enough to deplore, to protest, or to litigate. Trump’s tactics, whether in New York or in Washington, will not be defeated solely by appeals to moral or legal obligations. Nor is Trump acting alone. The attorney general, the Senate (in the grip of McConnell and a cowed and complicit Republican majority), and too many “acting” officials, conscienceless collaborators, and pliant enablers have abetted Trump in straining and eroding our democratic system.   “Democracy is not a state. It is an act,” our late hero John Lewis exhorted from his deathbed. To confront and defeat authoritarianism, performative democracy requires all patriotic defenders of the Republic to act — and that means act effectively. We should be mindful, as Holmes wrote, that “A man who cares nothing for an ethical rule which is believed and practiced by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.” The power centers at every level in our constitutional system must show they mean business by pushing back and imposing costs using the full measure of their powers under the law.   What, then, should those with political authority and power do?   In cities like Portland, when federal paramilitaries seize people off the street or use violence against them, they commit crimes. State and local officials should charge them and arrest them, as prosecutors in Baltimore and Philadelphia have said they would do. Would Trump challenge such efforts in court? Probably. Might these efforts lead to standoffs between local police and the paramilitary? Perhaps. But criminal charges would shift the burden on to the forces of authoritarianism and send a message that those who violate the law in Trump’s name are themselves vulnerable to prosecution.   In Washington, it’s way past time to meaningfully assert congressional oversight and power. Regrettably, the Republican Senate has stood silent during, and the Democratic House of Representatives has too often allowed, Trump’s disregard of Congress’ spending enactments, the Senate’s role in confirming officials, and even the most basic requests for information necessary to congressional oversight. Even on the rare occasion when the House has defended Congress’ constitutional authority, these exertions have been ineffective and dilatory, leaving it to courts to adjudicate, let alone enforce its halting assertions.   Congress should wield its power of the purse to strip funds for illicit operations by corrupted agencies. Going further, why shouldn’t the House hold Trump’s defiant henchmen in contempt, fine them, and have the House’s Sergeant at Arms place them under arrest? Would the power of Congress be challenged in court? Probably. Might there be confrontations between the Sergeant at Arms and Trump’s minions? Perhaps. But full use of Congress’ lawful powers to stand up to a bully and his gang, to push back against a bad man, is the only way for Democratic and even Republican members of Congress to show that they give a damn about liberal democracy, and are not merely sputtering ineffectually at shameless and unconstitutional obstruction.   Nor is it only our members of Congress, governors, state attorneys general, mayors, and local prosecutors, who must act. It is we, the people who are the necessary and ultimate defenders of democracy. Like the diverse patriots protesting under the banner of Black Lives Matter, or the “Wall of Moms” in Portland, we must stand up, speak out, demonstrate, and put pressure on decision-makers. And, above all, we must vote.   Finally, there must then be a lawful reckoning — a full exposure of the corruption, complicity, and lawbreaking that have marked this regime from day one. It must be made clear to all who enable this bad man and bad president that they will be held accountable; shamed in history, in their social circles, and in the eyes of their fellow citizens; obliged to disgorge tax returns, campaign finance records, emoluments, and ill-gotten profits and prestige; prosecuted and fined or jailed where appropriate; and made to pay the price of betrayal of the American people, our values, and the rule of law that our Republic depends on.   Any hope of deterring Trump and his accomplices and enablers now — and even more importantly, building America back better when he is repudiated and gone — requires acting effectively in ways that a bad man can understand, and that the good demands.

Betty Riddle, a grandmother and university graduate, explained to the ACLU the unfairness did not hit her right away: “I didn’t realize that it wasn’t right until I asked myself, ‘Why are we paying to vote?’”   What’s worse, Florida requires returning citizens seeking to register to swear under penalty of perjury they are eligible to vote. If they cannot determine their eligibility, they risk criminal prosecution for registering. Given how difficult — even impossible — it is for returning citizens to determine if they have any outstanding LFOs, policies like these undoubtedly prevent countless people from even registering out of fear of prosecution.   Florida has proven incapable of administering its poll tax. Voters should not have to pay the price for Florida’s unworkable system. SB 7066’s system is irrational, cruel, and unfair. It is also unconstitutional.   Before Amendment 4, Florida was one of four states that permanently revoked the right to vote for all people with past felony convictions. One in 10 voting-age Floridians could not vote for life, including

Proposals to use the tracking capabilities of our cell phones to help fight COVID-19 have probably received more attention than any other technology issue during the pandemic. Here at the ACLU, we have been skeptical of schemes to use apps for contact tracing or exposure warnings from the beginning, but it is clearer than ever that such tools are unlikely to work, and that the debate over such tracking is largely a sideshow to the principal coronavirus health needs.   We have said from the outset that location-based contact tracing was untenable, but that the concept of “proximity tracking” — in which Bluetooth signals emitted by phones are used to notify people who may have been exposed — seemed both more plausible and less of a threat to privacy. Indeed, a number of serious institutions began working on this concept early in the pandemic, most notably Apple and Google, which have already implemented a version of the concept in their mobile operating systems.   Some of the problems with tech-assisted contact tracing have been apparent from the beginning, such as the social dimensions of the challenge. Smartphone ownership is not evenly distributed by income, race, or age, threatening to create disparate effects from such schemes. And even the most comprehensive, all-seeing contact tracing system is of little use without social and medical systems in place to help those who may have the virus — including access to medical care, testing, and support for those who are quarantined. Those systems are all inadequate in the United States today.   Other problems with technology-assisted contact tracing have become more apparent as the pandemic has played out. Specifically, such tracing appears to be squeezed from two directions. On the one hand, a tool shouldn’t pick up every fleeting encounter and swamp users with too many meaningless notifications. On the other, if it is confined to reporting sustained close contacts of the kind that are most likely to result in transmission, the tool is not likely to improve upon old-fashioned human contact tracing. Those are the kinds of contacts that people are likely to remember. And those memories, relayed to human contact tracers, are more likely to identify a patient’s significant past exposures than an automated app that can’t determine, for example, whether two people were separated by glass or a wall.   A difficult disease to trace   The first problem — the danger of generating far too many “exposure notifications” — is considerable. As one commentator put it, “actual transmission events are rare compared to the number of interactions people have.” Swamping users with false notifications would be useless and annoying at best, and seriously disruptive and counterproductive at worst. Ultimately, people will stop taking the notifications seriously, or just uninstall the app.   That problem is made worse by the fact that COVID-19 is a more difficult disease to trace than many. As a group of prominent epidemiologists from the University of Minnesota explained in a report on contact tracing, contact tracing is less effective when:   1. Contacts are difficult to trace, such as when a disease is transmitted through the air. Respiratory transmission appears to be the primary way COVID-19 is transmitted. Compared to the kind of contact tracing that has long been done with shut down within 72 hours of its launch, and another one had not led to any contract tracing a month after its launch. An app in North and South Dakota ran into trouble quickly when it was revealed to be sharing data with a private location-data company. Overall, state efforts so far have been plagued by “technical glitches and a general lack of interest by their residents.” A survey by Business Insider found that only three states planned to use the Apple/Google technology. Others had not decided, but 17 states reported that they had no plans to use smartphone-based contact tracing at all.   Those who have worked on privacy-preserving exposure notification apps should be commended for stepping up. They have dedicated their skills toward trying to save lives and restore people’s freedom, and they did a very good job creating a privacy-preserving approach that was not only the most likely to be trusted and effective, but also the least likely to permanently change our world for the worse.    Nevertheless, it does not appear to be working out. “A lot of this is just distraction,” Osterholm concluded of all the talk over digital contact tracing. “I just don’t see any of this materializing.” Given what we know about the technology, we are inclined to agree.

In early April, the Rikers Island jail complex in New York City suffered its first coronavirus death: Michael Tyson. Mr. Tyson, 53, had been arrested in late February not because he had committed a crime, but for a technical violation of his parole. As a retired federal probation officer, I can tell you that incarcerating someone for a technical rule violation should be a last resort. But during a pandemic, it should be ceased completely. Our federal, state, and local probation and parole systems should act immediately to protect public health and safety and choose alternatives to unnecessary incarceration.  For 22 years of service as a probation officer, I saw first-hand how difficult it is for individuals to follow all the technical rules of supervision. These conditions range from adhering to a curfew to abstaining from cigarettes and alcohol, meeting with parole or probation officers regularly, keeping treatment appointments, and maintaining employment. They regulate daily behaviors that most of us take for granted, which in many cases leads to failure. People with drug addictions are required to test negative, even though experts agree that it is normal to relapse multiple times before successfully entering recovery.  Mr. Tyson is not the only person who may have received a death sentence for a technical violation. In Arizona, where the ACLU has filed COVID-related lawsuits against both a federal and a local jail, many of the detainees are there for these types of technical violations. One person at the CoreCivic federal facility in Florence, Arizona was sent back to prison for smoking a cigarette in the hallway of their halfway house.  Probation and parole officers are taking a heavy-handed response to minor infractions in Arizona and across the country. One recent study found that 45 percent of all state prison admissions were a result of probation and parole violations, and 25 percent were due to technical violations — the same kind Mr. Tyson allegedly committed. In normal times, these are troubling statistics. In the middle of a pandemic, they are deadly. Social distancing and other important safety practices like handwashing and wearing masks are not happening in correctional facilities. Jails and prisons account for most of the country’s worst hotspots for COVID-19. Unnecessary incarceration is dangerous not only to incarcerated people and corrections officers but to all of us. People in jail are usually there less than a month, plenty of time to contract the virus and bring it home with them. The phenomenon has been documented: In Illinois, one in six of all coronavirus cases were linked to people who were jailed and released from the Cook County jail in Chicago. This is a fixable problem. Parole and probation officers have vast discretion in responding to technical violations. Now more than ever, officers should not register formal violations that result in incarceration for technical violations. We can also stop issuing violations for minor infractions and work with our agencies to design a series of graduated responses that do not jump straight to incarceration.   The current approach to community supervision is putting all of us at risk. To stop more avoidable deaths like Mr. Tyson’s, probation and parole officers and our agencies should take immediate action and suspend the use of incarceration for technical violations. It is our responsibility and duty to guard against the unique dangers of this pandemic and to protect the community.