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  • Sandeep Prasanna 2:25 pm on March 30, 2012 Permalink | Reply
    Tags: constitution, , english only, foreign language, german american, , mexican american, nebraska, , tucson   

    “Inimical to our own safety”: regulating heritage languages 

    With the country waiting for the Supreme Court to release its decision on the constitutionality of the Patient Protection and Affordable Care Act, I thought it would be fun to revisit an older Supreme Court decision — one where the Court directly considered the benefits and disadvantages of foreign language learning.

    I was inspired to check out this case, Meyer v. Nebraska, 262 U.S. 390 (1923), by a section in Lane Greene’s fantastic book You Are What You Speak: Grammar Grouches, Language Laws, and the Politics of Identity, where Greene described it in the context of fervent “English-only” activism in the US.

    The suit in Meyer v. Nebraska was brought against a teacher who had been caught teaching German reading skills to a 10-year-old child in a parochial school in Nebraska. This was back when German was still commonly spoken in the Midwest by recent immigrants. The relevant statute read in part as follows:

    Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language than the English language.

    Section 2. Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eighth grade …

    [The statute discusses penalties.]

    Section 4. Whereas, an emergency exists, this act shall be in force from and after its passage and approval.

    Prior to the U.S. Supreme Court taking up the case, the Nebraska Supreme Court affirmed the validity of the statute. They wrote:

    The Legislature had seen the baneful effects of permitting foreigners … to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety. …

    It was to educate them so that they must always think in that language, and, as a consequence, naturally inculcate in them the ideas and sentiments foreign to the best interests of this country. …

    The obvious purpose of this statute was that the English language should be and become the mother tongue of all children reared in this state.

    The U.S. Supreme Court reversed the decision of the Nebraska Supreme Court, holding that the statute infringed on the rights guaranteed by Section 1 of the Fourteenth Amendment (“… [n]o state shall deprive any person of life, liberty or property without due process of law…”). Specifically, the Court held that the statute unfairly infringed on the teacher’s right to teach, as part of his occupation, as well as the right of parents to engage that teacher in instructing their children.

    Moreover, they noted that the sole purpose of the statute was to inhibit the teaching of modern languages alone, even though, they note, “Mere knowledge of the German language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable.” Later, they write that foreign language learning is “not injurious to the health, morals or understanding of the ordinary child.”

    But, lest you think the Supreme Court was being too progressive, they still warn:

    The desire of the Legislature to foster a homogeneous people … is easy to appreciate. Unfortunate experiences during the late war [World War I] and aversion toward every character of truculent adversaries were certainly enough to quicken that aspiration.

    Still, the means used were too intrusive, they concluded.

    I’m in Tucson, Arizona, right now, working on a handful of legal projects with U.S.-Mexico border human rights organizations. The small-town reasoning evident in the Nebraska Supreme Court’s decision — foreign languages are bad, and they are dangerous for our youth and for American ideals — are alive and well today, not least in Tucson, where many people regard the exercise of Mexican-American pride as an assault on the US itself.

    The Tucson Unified School District board recently decided to remove its Mexican-American studies courses in response to a finding by the Arizona Schools Chief that the program promoted racial disharmony. Regulating identity in our schools and fostering homogeneity with dire warnings of a multicultural dystopia don’t seem to have gone out of vogue yet, 89 years after Meyer‘s implicit remonstrances.

    But, as Lane Greene writes, there’s nothing to fear from the teaching of heritage languages — because they’ll probably be lost within two generations, anyway, through the inexorable march of the American monoglot machine. As an Indian-American, I can offer anecdotal support — for better or worse, few among my cohort speak our heritage languages fluently, and those who do still speak English fluently. Of course, anecdotes aren’t data, so here are hard numbers: Hispanics in America today are learning English more rapidly than German Americans at the turn of the century — 95% of surveyed second-generation Hispanic children located in the heavily Hispanic areas of San Diego and South Florida spoke English fluently, and 40% spoke no Spanish. Hardly the bilingual disharmony English-only activists warn of.

    Greene writes:

    It is, to put it simply, nearly impossible to raise a child in the United States without the child learning English; it would require isolation from the outside world bordering on child abuse. Children born in America, and even those arriving at a young age, inevitably pick up English.

    This fact, of course, does little to quiet the English-only activists.

     
    • johnwcowan 4:23 pm on March 30, 2012 Permalink | Reply

      There’s a deeper question, though: can you be a real American and not speak English? Civic nationalists say “of course”, ethnic (which often means racialist) nationalists deny it.

      • Sandeep Prasanna 9:30 pm on March 30, 2012 Permalink | Reply

        Surely even the most fervent “ethnic nationalists” can’t deny that Native Americans who don’t speak English are American? (Or can they?) Also, a frequently debated question: can a monolingual person who doesn’t speak one of the languages that government documents are regularly translated into (e.g., Spanish, sometimes French, sometimes Chinese) fully participate in American civic life?

        • Dani 10:02 am on March 31, 2012 Permalink

          Plenty of native, English-speaking Americans do not participate in American civic life.

        • johnwcowan 12:36 am on April 2, 2012 Permalink

          Ethnic nationalists don’t care about Native Americans; most of them speak only English anyway.

    • Dani 9:59 am on March 31, 2012 Permalink | Reply

      During my time teaching in a heavily Hispanic (>85%) high school, I noticed that the only students who did not speak English were those who had immigrated to the US within the previous 5 years. Students who had arrived earlier spoke passable, if not fluent, English. Students born in the US to immigrant parents spoke English fluently and unaccented, even if their parents spoke only Spanish.

      As you said, if a problem exists, it is that so many of my students barely knew Spanish.

    • Peregrin 5:52 am on April 4, 2012 Permalink | Reply

      From my own experience I’ve found that first/second generation immigrants and their children have a much easier time learning the English language in America than, for instance, here in the UK. Although there is also a presence of ethnic “ghettoes” in the US, it seems to be more prevalent in some of the larger cities in England and Scotland. For example, here in London, especially the inner-city, it is possible to be born in an area or neighbourhood and never actually attain a full grasp of ‘native’ London English or British English. Cockney has been largely replaced by what’s called Multicultural London English (MLE). So while such individuals do learn a form of English, this variation is one based on the evolution and development of local varieties and ‘second-language’ English. Although many do understand the difference between the registers and can switch accordingly, there are those who, chiefly in the more impoverished areas, can only speak this variety with any real fluency.

      A similar situation can be observed in Sweden. Speaking from personal experience, I found that some of the neighbourhoods and suburbs of Stockholm, Gothenburg, and Malmo, with large immigrant populations tended to exhibit this ‘second-language’ trait. There are men and women in their twenties and thirties who have been born in these suburbs having only a tentative grasp of Central Swedish (or Rikssvenska). A famous example is that of Rinkeby Swedish (Rinkebysvenska), named after the Stockholm suburb; it borrows heavily from Turkish, Arabic, Persian, Serbo-Croat, Syriac, and Kurdish.

      • Sandeep Prasanna 7:34 pm on April 15, 2012 Permalink | Reply

        This is really interesting. I wonder to what extent the political structures/laws regarding immigration and immigrant communities influence those patterns.

  • Sandeep Prasanna 3:38 pm on March 9, 2012 Permalink | Reply
    Tags: constitution, , , , law school, may, , parsing, shall, , united states   

    Parsing the Constitution 

    Some of the most delightful moments for an ex-linguistics student in law school are when legal analysis clearly intersects with linguistic analysis. That connection was part of what drove me to come to law school. This semester, for me, that close relationship has appeared most often in Contracts and Constitutional Law, two fields which depend heavily on the parsing of text to divine original and apparent meaning.

    Seth Barrett Tillman, currently a lecturer in the Department of Law at the National University of Ireland, Maynooth (Ollscoil na hÉireann, Má Nuad) and previously an attorney and law professor in the United States, has written extensively on the interpretation of clauses in the U.S. Constitution.

    In a piece that appeared in the American Journal of Legal History in 2010, Nora and Seth Tillman put forth the argument that our modern understanding of the words shall, may, and will in the Constitution are not consistent with their usage in the late 18th century, when it was written.

    [W]here a word once had multiple meanings, but only one variant is now remembered and understood, we may be seriously mistaken when we ascribe near certainty to our understanding of how a constitutional term was used.

    As we understand it, prevailing eighteenth century American usage, distinguished shall (indicating futurity) from will (indicating the emphatic tense), as it is still spoken in Anglo-English. Whereas today, we Americans conjugate will as “I will, you will, he will,” and shall as “I shall, you shall, he shall,” in the eighteenth century, the dominant American usage (following southern English standards) was will (I will, you shall, he shall) and shall (I shall, you will, he will).

    [W]e suggest that standards … may have been of import to [the drafters], and, for that reason, knowledge of those (long moribund) standards may be a useful tool with regard to determining original public meaning …

    It’s a short, fascinating piece. Read it here: Nora Tillman & Seth Barrett Tillman, A Fragment on Shall and May, 50 AM. J. LEGAL HIST. 453 (2010). (Opens PDF.)

    Tillman also debated Northwestern Law Professor Steven G. Calabresi in 2008 in the University of Pennsylvania Law Review PENNumbra. Tillman argues that the Constitution did not require Barack Obama to relinquish his Senate seat upon inauguration as President.

    He bases this argument over the precise definition of the word “officer” and whether the President falls into that category, drawing upon Article II, § 4 (the Impeachment Clause), Article II, § 3 (the Commissions Clause) and Article I, § 9, clause 8 (the Foreign Emoluments Clause) to make his point.

    Calabresi rebuts, noting that the rub for Tillman’s argument rests in Article I, § 6, clause 2.

    A fun read. Find it here: Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. PA. L. REV. PENNumbra 134 (2008). (Opens PDF.)

     
  • John Stokes 2:26 pm on February 7, 2012 Permalink | Reply
    Tags: 9th circuit, California, constitution, , gay marriage, gay rights, , prop 8, proposition 8   

    Prop 8: The importance of being ‘married’ 

    The 9th Circuit ruled today that California’s Proposition 8 was unconstitutional, saying that it violated the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution. For a summary of the ruling and a link to the opinion itself, check out SCOTUSblog.

    Most of us probably remember that Prop 8 was the anti-gay-marriage initiative that California adopted a couple years ago. More specifically, though, Prop 8 was a public initiative that amended the California Constitution to prevent same-sex couples from obtaining the official designation of ‘married.’ It left in tact all of the rights afforded to gay and lesbian couples — the same rights that married opposite-sex couples are entitled to — but it forbade them officially to call these relationships ‘marriage.’

    One might argue–as indeed the proponents of Prop 8 did–that if none of the substantive rights of gay couples were taken away, the lack of official designation shouldn’t be a constitutional problem. Having the rights, after all, is more important than what they are called. But the 9th Circuit disagreed:

    All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite sex couples.

    –  Perry v. Brown. 9th Circuit 10-16696. (from Judge Reinhardt, writing for the panel that decided the case)

    In other words, what you call something does matter. And this is a powerful idea. The 9th Circuit says it doesn’t care if you leave the substantive rights in tact; it doesn’t matter if you maintain all the other entitlements that come along with the word ‘marriage.’ No– certain words have such special significance, such special power, that to deny access to their use alone is enough to violate a right.

    So indeed – the 9th Circuit’s ruling came down to the fundamental importance of being, specifically and officially, ‘married.’

     
    • John Stokes 2:40 pm on February 7, 2012 Permalink | Reply

      “Had Marilyn Monroe’s film been called ‘How to Register a Domestic Partnership with a Millionaire,’ it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.”

      -Judge Reinhardt putting the point slightly differently

    • johnwcowan 2:57 pm on February 7, 2012 Permalink | Reply

      Note that there is also an equivocation on married. In Romer v. Evans, gay people were denied certain rights tout court. But, as the anti-marriage-equality folks are forever pointing out, no adult in America is denied the right to marry as such — only the right to marry certain other adults.

      I hope that when the Supremes take this up, as they inevitably must either now or later, that they will look back to Loving v. Virginia, which also purported to allow everyone the right to marry, just not people of another color. The Court struck that one down, and just before Mildred Loving died in 2008, she expressed herself on the subject of gay marriage: she was for it.

      • John Stokes 3:25 pm on February 7, 2012 Permalink | Reply

        Good point. The biggest problem with relying on Loving is that it was a race case and thus triggered strict scrutiny. Sexual orientation only gets rationality review. So it’s not clear that Loving would help on the Equal Protection front.

        But there’s still some language in Loving that could buttress the Due Process claims. “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

        This is reminiscent of the language in right-to-privacy cases, e.g. Griswold, Roe, and Casey, saying the state can’t make reproductive decisions for you (the freedom to make these decisions is a fundamental right, so laws that limit that right are put under strict scrutiny). This got pushed farther in Romer and Lawrence, where the Court said the state can’t make decisions about private sexual activity/partners. So the Loving language might be employed to extend the claim to decisions about who to marry — saying that this, too, is a fundamental right and thus gets analyzed under strict scrutiny.

    • John Stokes 10:45 pm on February 7, 2012 Permalink | Reply

      Meant to post this earlier, another good point from a close friend: The whole reason that Prop 8 was passed in the first place was that its proponents thought the word “marriage” was special to them. If the point were the rights associated with the word, they would either have done nothing or passed an initiative that affected the substantive rights of same-sex couples. Instead, the focus was on whether or not same-sex couples could use the term itself — an important difference.

    • Laura Heymann 2:52 pm on February 8, 2012 Permalink | Reply

    • John Cowan 1:58 am on February 11, 2012 Permalink | Reply

      The three levels of scrutiny are judge-made law, and judges can change them.

      • John Cowan 4:31 am on February 12, 2012 Permalink | Reply

        I’ve read the whole opinion and dissent now, and it seems clear that the court remains within the bounds even of rational-basis scrutiny. There is no constitutional right to be on welfare, but a law that prevented Greek-Americans from receiving welfare would be facially unconstitutional, even though people of Greek descent don’t constitute a suspect class. By analogy, there is no constitutional right to marry, but given that people are allowed to marry, removing that right from a particular group is not the kind of law that our constitution allows our legislatures to pass.

        As for the dissent, it’s not so much about rational-basis review as about irrational-basis review. The learned judge seems to think that it’s perfectly fine for a legislature (or the sovereign people) to criminalize the making of strawberry ice cream if they believe that eating strawberry ice cream increases the likelihood of criminal behavior (which is undoubtedly a legitimate state purpose). The fact that that idea is preposterous seems to make no difference to him.

  • The Diacritics 10:36 am on October 12, 2011 Permalink | Reply
    Tags: constitution, debate, election, john, , necessary and proper,   

    Necessary and Proper: the Supreme Court aren’t linguists 

    (Posted by John)

    As I watch the beginnings of the Republican presidential primary season unfold, there’s one mantra I’ve heard espoused time and again: our government is too big. With debates about spending and entitlements (not to mention the health care law) as fierce as they’ve been in my lifetime, the question of the appropriate role of government appears to be coming to a head in a serious way.

    One clause of the Constitution, in particular, has had massive influence on this debate. That clause is the Necessary and Proper Clause. The Necessary and Proper clause says that Congress has the authority “to make all laws which shall be necessary and proper for carrying into execution [its enumerated powers].” This is basically a mandate for Congress to do the things that it needs to do in order to carry out its explicitly stated powers (e.g. levying taxes). The real debate, though, is how wide a mandate this clause actually grants. And as it turns out, answering that question depends greatly on…you guessed it, linguistics!

    What’s the right interpretation?
    So what does necessary and proper actually mean? For most people, and particularly those keen on limiting the scope of government, it means that any act Congress wishes to justify under the Necessary and Proper clause must be both necessary and proper. The “and” requires that both conditions be satisfied in order for an act to be authorized.

    This makes some sense. If I say “John and Sandeep have written posts for The Diacritics blog,” I mean that both John and Sandeep write posts, not just one or the other of them. This interpretation puts severe limits on what the government can do, too: anything that is not necessary to the execution of some explicitly stated Constitutional power is prohibited. Lots of people believe this to be the correct interpretation. And for those who do, the federal government has a long history of greatly overstepping its legitimate authority.

    But lets look a little closer at what this interpretation of the Necessary and Proper clause entails. What, for example, happens when there is more than one possible method by which Congress could undertake to levy taxes? If there are multiple options, any of which would suffice, precisely none of them is necessary. Thus, on the “strict and” interpretation of the Necessary and Proper clause, whenever there are multiple courses of action, Congress may not choose any of them. In my opinion, this is not a desirable outcome. It’s not that Congress is never allowed to pass a law to carry out an explicitly stated power. It’s that Congress may only do so when there is one option and one option alone. If this reading is to be a tenable one, some kind of work still needs to be done.

    There’s another legitimate, but lesser-known, interpretation of “[the authority to make] all laws necessary and proper” that doesn’t suffer from the “strict and” defect. To get at it, consider the following: God loves all creatures great and small. Obviously this does not mean “God loves all creatures that are both great and small.” This is a nonsense sentence. It is actually parsed something like: “God loves all creatures great and [all creatures] small,” or “God loves all great creatures and all small creatures.”

    Why, then, is it not legitimate to read “all powers necessary and proper” to mean “all powers necessary and all powers proper”? This reading is at least plausible, and it doesn’t suffer from the “strict and” problem of limiting action whenever there’s a choice. This is also the reading that proponents of larger government (perhaps only implicitly) might adopt.

    What the Court has said
    The Supreme Court has, over the course of our nation’s history, ranged across the spectrum in its reading of the clause. Unfortunately, they generally aren’t the greatest of linguists, despite the fact that John Marshall’s famous McCulloch v. Maryland opinion does recognize the “strict and” problem.  His solution to it is, essentially, reading the word “necessary” out of the Necessary and Proper clause. He adopts a purposive understanding: for Marshall, if the underlying goal of the act was to carry out some explicitly stated power, you were probably good to go. This meant that Congress couldn’t enact laws under the pretext of, say, regulating interstate commerce, but with the actual purpose of, say, prohibiting intrastate child labor. While this is not a linguistically plausible reading, it is perhaps a decent one from a policy standpoint: it avoids the “strict and” limitation on government but does try to set out some limit on federal power.

    The Court has treated this reading variously since then. Up until the New Deal Era, the Court was serious about keeping the federal government out of purely intrastate commerce, for example. But as we know, for most of the 20th Century, the Necessary and Proper clause was read as an essentially unlimited federal mandate. The Court ruled that the underlying purpose of a statute no longer mattered, and that any action that, considered in the aggregate, had an affect on interstate commerce was within the scope. Whether you use a Kleenex when you sneeze, taken across the entirety of the population, without doubt affects interstate commerce, and thus could have been regulated.

    Only recently has the Court begun to walk this unlimited mandate back. We’ll see how their reading evolves over the course of the next decade, as the debate about government’s size rages on.

    In the end, whichever reading you choose is fine by me.  But it will be interesting to see what those in Washington, presidential candidates and Supreme Court alike, have to say on the topic.

     
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