I responded last month to Martha McCluskey’s ClassCrits post, “Class as a Category of Vulnerability and Inequality.” In that initial response, I asserted that progressives need not choose between advocating mobility (the upward variety!) and advocating mobilization (collective action, labor rights) when it comes to class. I called the tension between mobilization and advocating class mobility a false dichotomy. This post takes up another issue that arose from the initial conversation: is class material or is it cultural? More precisely, will attending too much to the cultural aspects of class cause us to lose sight of its material aspects and consequences?

Of course, class has both material and cultural components—no doubt one of the reasons we increasingly refer to it as “socioeconomic status” or “SES.” I believe we must take both seriously in our efforts to empower the working class and poor. As with my prior post, I take the white working class as my starting point for several reasons. One is that I don’t hear socially conscious progressives pushing for a bifurcation that separates the material from the cultural with respect to minority groups. The other is that focusing on working class and poor whites permits us to see class more clearly. If we are looking at the group which enjoys the greatest racial privilege, we will not be tempted to collapse the class problem into the racism problem. We thus have a distinct opportunity to see just how powerful class disadvantage is. This tack it is not intended to discount the ways in which racial disadvantage exacerbates class disadvantage.

Thinking about class as culture implicates identity, and some have challenged class as a basis for identity, especially among “lower classes.” John Guillory wrote in 1993:

Acknowledging the existence of admirable and even heroic elements of working-class culture, the affirmation of lower-class identity is hardly compatible with a program for the abolition of want.

First, note that even Guillory implicitly links culture (“lower-class identity”) to the material (“abolition of want”). Second, while Guillory’s assertion may be somewhat true regarding those most materially deprived—the poorest among us—it overlooks the fact that many working-class whites are proud of that status. Jim Webb has observed, for example, that rednecks “don’t particularly care what others think of them. To them, the joke has always been on those who utter the insult.” If they suddenly got rich, they would not necessarily shed their cultural trappings. Nor would they shrug off all of the socialization and habits of their childhood and youth. Consider the “Beverly Hillbillies” as a vivid (if imperfect) illustration of the point. As many scholars have observed, class is inextricably linked to consumption, and consumption implicates not only money, but also spending priorities and taste.

Significantly, scholars have observed that culture varies more along racial and ethnic lines among the “lower” classes, while culture becomes more homogeneous as you work your way up the class hierarchy. In other words, the upper classes—regardless of race or ethnicity—tend to be more culturally like each other than they are like those of their same race or ethnicity who fall below them in the class hierarchy. This, too, is evidence of the symbiotic relationship between the cultural and the material. Given the link between being lower class on the one hand and manifesting cultural differences attributable to race/ethnicity on the other, denying cultural aspects of class for working class and poor whites seems tantamount to denying their personhood. It also overlooks a whole lot of sociological literature that sees cultural and material aspects of class as entangled.

In fact, a feedback loop exists between the material and the cultural in a range of contexts. June Carbone illustrates this in relation to family types in a forthcoming article.  Education is another context in which the two are intertwined: the working class are less likely to seek higher education and may scoff at its value in part because they know (or believe) they cannot afford it; they see it as beyond their reach.  Young people from working class families are thus far less likely than the children of professionals/the managerial class to get college degrees, which contributes to the financial insecurity of the former and keeps them in the working class.

Martha McCluskey’s post about cultural and material aspects of class arose from my discussion of Joan Williams’s new book, Reshaping the Work-Family Debate: Why Men and Class Matter.  The book is the subject of a colloquy in the Seattle University Law Review, in which Laura Kessler suggests that Williams pays too little attention to the material aspects and consequences of class by virtue of attending too much to its cultural aspects. To this, Williams responded as part of the colloquy:

Does a focus on how class is manifested as cultural difference entail overlooking the structuralist-materialist dimensions of class? Not at all: I am a material girl. But here’s the fascinating thing. Since 1970, Republicans have adopted policies that have radically increased inequality of incomes and eviscerated the economic stability of Americans who are neither rich nor poor with those very Americans’ political support.

* * *

All this is to say that, although I am a material girl, I recognize that we do not live by bread alone. Dignity and meaning-creation are equally important. So it is possible to connect with people whose economic interests do not in sync with yours if you connect with the symbols and the values that give dignity and meaning to their lives. That’s what the Republicans have done, and I propose that Democrats follow the same path.

To be clear, acknowledging culture does not let the state off the hook. In my earlier post, I discussed the role of the state regarding the increasing immobility of the working class. The state also plays roles in relation to a conception of class that attends to culture. One such role should be to prevent discrimination. Mitu Gulati and Devon Carbado have argued that anti-discrimination law should protect the "fifth black woman," the one with dreadlocks and African garb. They have asserted that whites are not faced with her dilemma—to pass or not—but they are wrong. Whites, too, must behave and dress in certain ways in order to "pass" successfully in settings where power (and wealth!) resides, e.g., elite universities, graduate and professional schools, large law firms, corporate America, middle and upper echelons of government.

Williams’s survey of ethnographic studies of the white working class suggests that turning away from working class habits, manners, and attitudes is necessary for class migrants to, well, migrate—to ascend the class ladder. They must do this in order to succeed and thereby to enhance their material well-being. Williams reports some comments made by class migrants during her book tour, noting that “they expressed anxiety that their migration in to the elite would leave them alienated from the values they grew up with and still hold dear.” At the same time, they worried that the working-class values engrained in them would inhibit “their ability to move up” and “attain professional success.” Williams was reporting there about class migrants of color, but it is high time we acknowledge that white class migrants are similarly hamstrung.

All of this points to the wrongheadedness of trying to bifurcate the cultural and material when we think about class. Clearly, each has a significant influence on the other, and we should reject a dichotomy between the two as false.

Cross posted to SALTLaw Blog and ClassCrits.

Wealth and income inequality have been getting a lot of attention in recent months--at least in the New York Times. Op-Ed columnist Bob Herbert has been especially persistent about keeping the topic on readers' radar screens; read some of his columns here, here, here, and here. Paul Krugman, Frank Rich, and Robert Frank have had a say, too. Wealth inequality was also the subject of a "Room for Debate" feature a few weeks ago.

But geographic analysis of inequality has been little examined in the mainstream media until The Economist Magazine ran a couple of stories about uneven development and spatial inequality in the March 10, 2011 issue. The first "Internal affairs: The gap between rich and poor regions widened because of the recession," analyzes various nations' spatial inequality as measured by income and GDP. This analysis shows that Britain is the nation with the widest geography-based income gap: the per capita GDP is nine times greater in central London than it is in some Welsh regions. The smallest regional spreads, on the other hand, were in Italy and Germany, where "incomes in their most affluent areas are [nevertheless] almost three times those of the poorest." The United States falls at the British end of the spectrum, coming in second for inequality across regions among the nations studied. The District of Columbia, for example, is five times as rich as Mississippi. Further, the situation has worsened in the past few years.

Between 2007 and 2009 real GDP per head in the five richest states actually rose by an average of 2%, but fell by 3% in the five poorest. Both groups outperformed the national average, a fall of more than 4%. (The biggest slumps, both by more than 10%, were in Michigan, the eighth-poorest state, and in Nevada, site of the biggest house-price crash.)

The Economist notes that this is merely a continuation of a long-standing trend, and it attributes the phenomenon, in part, to the "dependence of poorer states on manufacturing, which has suffered big job cuts over the past decade." The feature concludes that "the income gap between richer and poorer areas is likely to widen further as government-spending cuts disproportionately hurt less prosperous parts."

One of the story's big attention getters is its comparison of GDP among regions and cities of different nations.

[O]ver a quarter of regions in Britain and Italy and one-tenth of those in Germany will this year have a lower GDP per head than the municipality of Shanghai. All the American states remain richer, but Shanghai looks set to overtake Mississippi by 2015; within ten years half of all the states, including Florida, Michigan and Ohio, could have a GDP per head lower than Shanghai and Beijing.

If the comparison were at the scale of the county rather than that of the state, these Chinese cities would no doubt be shown well out-pacing our nation's persistent poverty counties.

The second Economist feature on spatial inequality, "Gaponomics," takes up the question of what should be done to respond to this problem, particularly in the context of Britain. Instead of investing in particular regions or giving tax breaks to "enterprise zones" in these downtrodden areas, The Economist offers this proposal:

[M]ake it easier for people to move. Given inherent gaps in regional productivity prospects, there is a case for boosting mobility from declining regions to prospering ones. In Britain the main problem is the fetish for home-ownership and high house prices in the south-east, partly the result of severe shortages of supply. Easing planning restrictions below the Watford Gap would be a better way of helping Britons than propping up the north.

As a ruralist, I am immediately suspicious of policies that would aggravate uneven development. Among other things, they ignore those who will remain immobile and inevitably left behind. They also ignore attachment to place as an aspect of the political economy of rural areas in particular.

This story's second proposal is far more palatable: invest in education because it results in "the single biggest reward" for the nation--even if northerners then move south with their enhanced human capital. (Regarding the latter, I am reminded of this book on the rural brain drain).

Back in the United States, a recent New York Times editorial echoes the second of these ideas in relation to New York's funding scheme for education. In "Rich District, Poor District," the editorial staff consider how two of the state's school districts will fare under the Cuomo budget: "Ilion in the economically depressed Mohawk Valley, and Syosset, a wealthy town in Long Island’s Nassau County." Needless to say, it's not a pretty picture. Here' a summary:

The cuts would scarcely affect wealthy districts that rely primarily on local taxes to support lavishly appointed schools. But they would be catastrophic for impoverished rural districts that have been starved of state aid for decades and are still reeling from cuts levied last year .... Already struggling to furnish even basic course offerings, the poorest districts would need to cannibalize themselves to keep the doors open and the lights on.

As the editors express it, the $1.1 million cut Ilion is being asked to take to its $25 million budget "would not even come to a rounding error in the state's richest districts," like Syosset, which is being asked to absorb only a $1.4 million cut to its $188 million budget. But the New York Times editors aren't just arguing that school funding should be more equitable because "it's the right thing to do," they make an argument grounded in economics: Depressed regions like that around Illion "stand[ ] little chance of attracting high-skill jobs if [their] schools are allowed to deteriorate."

Going back to The Economist articles for a moment, I noted that enhanced investment in education is one reason for the income convergence across Germany, even as spatial inequalities become more acute in other nations. The story describes "huge national and European Union funds for infrastructure, R&D and education, as well as the transfer of some manufacturing jobs from factories in the western states to the east." For some reason, Germany sees reasons to take care of its citizens where they are--not to create incentives for residents of the less affluent East to move West. I'd like to know more about those reasons because I suspect they go beyond a sentimental desire to permit people to stay where they are and the attractive orderliness of a more evenly populated. I am guessing these policies are based in part on economic calculations about the value of existing infrastructure and human capital in the historically deprived East. Better understanding those reasons might inform debates in the United States about why regional development and reducing spatial inequalities--not fueling them--makes good sense from myriad perspectives.

Some of my writings mapping the sociogeographic concept of spatial inequality onto legal conceptions of (in)equality are here, here, and here.

Cross-posted to SALTLaw.blog, ClassCrits, and Legal Ruralism.

Cross-posted from FindLaw.

In 1948, the people of California amended their constitution to establish a "single-subject rule" for constitutional amendments enacted by ballot initiative. Writing in the official ballot pamphlet, proponents argued that "[t]he busy voter does not have the time to devote to the study of long, wordy propositions and must rely upon such sketchy information as may be received through the press, radio, or picked up in general conversation."

The single-subject rule was necessary, proponents said, lest voters "be misled as to the over-all effect of [a] proposed amendment" by "improper emphasis . . . placed upon one feature . . . ."

Last month, the people of California narrowly adopted little-noticed Proposition 26, an initiated constitutional amendment whose fate will tell us much about whether the original, animating purpose of California's single-subject rule lives on today.

The Effect of Proposition 26

Prop. 26 does two things. First, it reclassifies many so-called regulatory fees as taxes, bringing them within the coverage of California's legendary Proposition 13 (which established supermajority-vote requirements for state and some local tax increases) and Proposition 218 (which established referendum and supermajority requirements for many local taxes).

Second, Prop. 26 changes the trigger for the supermajority/referendum requirement. Previously, a tax bill only faced this hurdle if it would result in a net increase in government revenues. Prop. 26 specifies, however, that a bill that increases taxes on even a single taxpayer must clear the hurdle, whatever its net effect.

So does Proposition 26 have two "subjects" or one? The standard doctrinal test for single-subject violations holds that a challenged initiative is permissible only if "all of its parts are reasonably germane to each other, and to the general purpose or object of the initiative."

If the courts may infer a "general purpose or object" from the substance of the measure, then Prop. 26 should pass this test with ease. Both of its parts cohere with the common purpose of protecting the reliance interests that some taxpayers may have in not being burdened with additional fiscal obligations to the state.

Yet this was not the purpose sold to the electorate, or stated in the proposition's "Findings and Declarations of Purpose." Prop. 26 was plainly and simply marketed as a loophole-closing measure, one which would stop politicians from evading Prop. 13 with revenue measures labeled "fees."

Not once does the proponents' argument in the ballot pamphlet even mention the new trigger for supermajority and referendum votes ("higher taxes on anyone, regardless of net revenue effects"). In all likelihood, the vast majority of Californians who voted "Yes" on Prop. 26 had no idea they were changing the trigger. And, importantly, they might well have reconsidered their vote had they understood it.

Conservatives should hate the new trigger because it subjects revenue-reducing and revenue-neutral bills to the supermajority/referendum requirement (insofar as the bill raises taxes on anyone). This will make it harder to reduce the overall size of government and to substitute new sources of revenue for the most incentive-destroying taxes presently found in the code.

Liberals should hate the new trigger because it makes it harder to achieve their public health, safety, and environmental goals (by replacing existing taxes with fees on pollution and unhealthful products).

And voters in the middle should hate the new trigger because they are the likely beneficiaries of any legislation that reallocates burdens across taxpayers without increasing taxes overall.

The only interests that stand to benefit from the new trigger are the oil, tobacco, and alcohol groups that funded the "Yes on 26" campaign. If the single-subject rule aims to thwart the bamboozlement of voters, Prop. 26 looks like a ripe target indeed.

In the remainder of this column, I'll assess the vulnerability of Prop. 26 under current law. In a companion piece to be published tomorrow, as Part Two in this series, I'll offer some doctrinal refinements that would better mesh California's single-subject jurisprudence with the purpose of the rule.

"Reasonably Germane" . . . to What?

As noted above, the California Supreme Court has implemented the single-subject requirement by assessing whether "all of the parts" of a challenged measure are "reasonably germane to each other, and to [the measure's] general purpose or object."

This test is conventionally lax. Dozens of initiatives were challenged unsuccessfully before, in Senate v. Jones (1999), the California Supreme Court finally vindicated a single-subject claim.

Jones, for present purposes, is less important for its holding than for what the Court said about voter confusion and how the Court conducted the reasonable-germaneness inquiry. Oddly enough, what the Jones Court said and what it did have strikingly different implications for Prop. 26.

Begin with voter confusion. Citing the 1948 ballot pamphlet, Jones explains that the "principal purpose of the [single-subject rule] was . . . to avoid confusion of either voters or petition signers and to prevent the subversion of the electorate's will." Jones then offers a lengthy and approving discussion of California Trial Lawyers Association v. Eu (1988), in which the intermediate court of appeals struck down a no-fault insurance proposition that included a suspiciously inconspicuous section. That section insulated the insurance industry against targeted campaign-finance regulations, and declared that legislators who receive lawful campaign contributions from insurers (among others) shall not be disqualified from participating in donor-affecting decisions.

Because there was neither a "reasonably discernable nexus between thestated object of the initiative[, lowering the cost of auto insurance,] and the campaign-finance and conflict-of-interest provisions," nor "any reference to those provisions in the initiative's ballot title and summary, or its statement of findings and purposes," the California Trial Lawyers Court concluded that the initiative at issue was an exemplar of "the potentially deceptive combination of unrelated provisions at which the [single-subject rule] is aimed."

Though it lauds California Trial Lawyers, Jones leaves some doubt about whether the "purpose" that grounds the reasonable germaneness inquiry must be the same purpose that the measure's proponents represented to the voting public. Jones evaluates the challenged initiative in terms of several hypothetical purposes advanced by proponents' lawyers, without stopping to consider which purposes actually informed voters' understanding of the proposition. In leading cases upholding ballot initiatives against single-subject challenges, however, the California Supreme Court has relied on purposes stated in or readily inferable from the measure's title and ballot summary.

In light of that practice, and of Jones's celebration of California Trial Lawyers, it is entirely possible the discussion of hypothetical purposes in Jones served only to illustrate just how badly the challenged initiative ran afoul of the single-subject rule. But Jones does give defendants an opening to argue that single-subject challenges may be met and defeated by showing that the component parts of a proposition are reasonably germane to a hypothetical purpose. Under that test, a single-subject challenge to Prop. 26 would, as noted above, almost surely be a loser--subject to one important caveat.

A Separate Test for Voter Confusion?

The caveat is this: it's not settled that a finding of "reasonable germaneness" necessarily ends the single-subject inquiry. In several cases, the California Supreme Court has considered (and rejected on the merits) plaintiffs' voter-confusion arguments after having concluded that the germaneness test was satisfied.

These precedents give plaintiffs a doctrinal toehold to argue that irrespective of "reasonable germaneness," a single-subject violation may be found in certain cases where voters were substantially confused about an important subpart of the proposition.

Alas, what the California Supreme Court has actually said in response to voter-confusion arguments flies in the face of everything that political scientists now understand--and that proponents of the single-subject rule intuited back in 1948--about how ordinary citizens vote on ballot propositions.

In Manduley v. Superior Court (2002), for example, the majority stressed that an allegedly obscure and confusing subpart of the ballot initiative had been carefully explained in the legislative analyst's report found in the voter guide. "We must assume," the majority wrote, that "the voters duly considered and comprehended these materials."

Justice Carlos Moreno, concurring, challenged this assumption: "[W]hile it is to be hoped that voters carefully study their ballot guides, the realistic premise behind the single-subject rule is that many voters do not . . . ."

The Bottom Line

Where does this leave Proposition 26? On one hand, the story of Prop. 26 resembles in important respects the story of the proposition invalidated in California Trial Lawyers. Prop. 26 includes a peculiar provision (the new trigger for supermajority/referendum votes) that has no "reasonably discernable nexus" to the purpose declared in the text of the measure and represented by its proponents to the electorate (to wit, closing the "fee label" loophole). And, as in California Trial Lawyers, the secondary provision was not noted in the description of Prop. 26 on the ballot.

On the other hand, the history of single-subject adjudication in California has been a history of judicial laxity, and the courts certainly could impute a purpose to Prop. 26 that would encompass all of its provisions, or naively conclude that both the hidden and the overt components of Prop. 26 relate to the subject of "tax limitations."

As for the risk of voter confusion, the courts could say that this is not an independent basis for single-subject invalidation, or, if it is, that the legislative analyst's careful explanation of Prop. 26, coupled with Manduley's presumption that voters "duly consider and comprehend" the analyst's report, vitiates the plaintiffs' argument.

If I were a betting man, I'd bet against a single-subject challenge to Prop. 26. But by trade I'm a law professor, not a gambler--and I'm a professor who shares Justice Moreno's conviction that the single-subject jurisprudence has too often drifted from the original purpose of the single-subject rule.

So in my next column, Part Two in this series -- which will appear tomorrow on FindLaw -- I will offer some thoughts on how to make single-subject doctrine responsive to the risk of voter confusion, and what this implies for Prop. 26.

Cross-posted from the Sacramento Bee op-ed co-authored with Marielena Hincapié, executive director of the National Immigration Law Center, published on November 28.

As early as this week, Congress might decide the fate of thousands of young Californians who would like to fully contribute to our economy, but currently are unable to do so because of their immigration status. The House of Representatives and the Senate plan to vote on the DREAM Act, which would provide undocumented young men and women of good moral character who attend college or enlist in the armed services with a pathway to citizenship.

Even if they lack the right papers, the young people who would benefit from the DREAM Act are unquestionably American. Many were brought to the United States as infants by their parents and do not remember life in the countries of their birth. Some do not even speak the language of the nations that were once home. Fighting long odds and overcoming numerous barriers, they have excelled in our educational system. Moreover, they have been members of our church congregations, Little League and soccer teams, attended our schools and become friends of our children.

The DREAMers, as undocumented students are called, now want to participate as full members of society by using their education to contribute to the work force – and work legally. Congress should act now and make that possible.

DREAMers are already integral components of our colleges and universities. Recently, the nation learned that Pedro Ramirez, who was elected by his classmates to be the student body president of California State University, Fresno, was undocumented. Co-valedictorian of his high school, Ramirez has excelled in college. How many parents would dream of having their child be student body president? Having lived in this country since he was 3, Ramirez did not even know that he was an undocumented immigrant until he began the college application process.

Because of his immigration status, Ramirez has served as student body president but, to avoid violating the law, declined the customary $9,000 stipend. So much for the stereotype that undocumented immigrants are unabashed lawbreakers. The stipend would have helped Ramirez immensely. As an undocumented student, he is not eligible for federal or state financial assistance and educational loans.

Thousands of young men and women just like Pedro Ramirez have worked hard and deeply want to contribute to this – indeed, their – great nation. Unfortunately, unless Congress passes federal legislation, there is virtually no way for them to work legally. The Immigration and Nationality Act of 1952, the federal immigration law that Congress amends in piecemeal fashion almost annually, is woefully out of sync with the nation's current economic needs.

We all benefit by ensuring that the DREAMers can live the American dream. The DREAM Act would allow us to take a first, important step toward modernizing the U.S. immigration laws by allowing those who call this country home to be permitted to fully contribute economically to the nation's well-being.

For Californians, the DREAM Act holds the promise of improving a sputtering economy. More than 500,000 DREAMers live in California. With a college education or military training, these young people have the skills and education to jump-start the economy and create a more prosperous work force.

Moreover, common sense dictates that college-educated workers – workers whom Californians invested in by providing a K-12 education – earn more and contribute more in taxes than those without such an education. It is irrational not to capitalize on the state's investment in the DREAMers as well as to deny California's employers, and tax coffers, this valuable asset. In enacting Assembly Bill 540, the California Legislature reached a similar conclusion and ensured that all graduates of California high schools would be eligible for in-state resident fees at California's public colleges and universities, a law that the California Supreme Court recently upheld.

Some argue that Congress should wait to pass a more comprehensive solution to fix the nation's broken immigration system. We firmly believe that it unquestionably is the case that the nation must eventually create a system that meets the societal and economic needs of the United States. However, to paraphrase Voltaire, the "perfect" should not be the enemy of the "good." In our estimation, the DREAM Act would be a "good," even if not a "perfect," first step toward some kind of lasting, meaningful and practical immigration reform.

Californians face many difficult decisions in putting their economic house in order. By passing the DREAM Act, Congress can help provide a cost-neutral economic stimulus that will help the Golden State's future entrepreneurs, engineers, Web designers and community leaders to contribute fully to California's economy.

Note: I also signed on to a letter that was published in the Huffington Post.  Click here to read We Cannot Afford Not to Pass the DREAM Act: A Plea from Immigration Scholars.

Photo © Lisa R. Pruitt 2010

The closing line of my recent blog post asked: "Is even democracy a luxury for the poor?"

Shortly after writing it, I came across this quote by Senator John D. Rockefeller IV, featured in the obituary of Senator Robert C. Byrd who died last week. Regarding the vast federal aid that Byrd garnered for West Virginia over the years, Rockefeller said Byrd knew that “before you can make life better, you have to have a road to get in there, and you have to have a sewerage system.”

This comment resonated with me, struck me as accurate. Yet it ran counter to my thinking about Robert C. Byrd for the past few decades. While I have always considered Byrd a fine man (well, aside from his Klan membership as a younger man) and appreciated his dedication to the Senate, I saw him primarily as a poster child for the excesses of pork barrel politics. Rarely was he in the news, it seems, without some mention of the federal aid he was able to channel to West Virginia. Indeed, his obituary in the New York Times states that he built, "always with canny political skills, a modern West Virginia with vast amounts of federal money." Elsewhere, it includes this quote from Senator Byrd himself, “I lost no opportunity to promote funding for programs and projects of benefit to the people back home.” He referred to West Virginia as "one of the rock bottomest of states."

Rockefeller's comment, however, reminded me of what was at stake with all that aid for West Virginia. It was not only welcome centers and courthouses and such. It was the state's development from an economic backwater, which requires roads and bridges. As Rockefeller observed, advanced sanitation makes a big difference, too. Indeed, it goes hand in hand with education and other health and human services in enhancing the state's human capital.

The quote from Rockefeller also reminded me of this provocative line from Aravind Adiga's The White Tiger (2008): "If I were making a country, I'd get the sewage pipes first, then the democracy." The White Tiger is a story from the other side of the world—from India—but it is related to what Byrd tried to do for West Virginia in several senses. The Indian story—like the story of many West Virginians—is about rural poverty. Its social, geographic, and economic context is the uneven development that has left rural India's residents behind while much of the rest of the nation zooms ahead in the name of progress (and, of course, capitalism). Parallels to rural West Virginia are apparent.

Photo by McKay Savage

We city dwellers don't think much about sewage pipes. We take them for granted. But lots of people in the U.S. and in India don't have them. Indeed, some don't even have clean water. (Read U.S. stories here and here.) When those living in metropolitan areas fret about roads, it is about getting a car pool lane, or sound walls, or even a whole new freeway. In rural areas, residents fret about how to get your (dirt) road graded, never mind getting it paved. (Read stories about the economic significance of road building in India, too, here and here).

Both the Rockefeller and Adiga quotes suggest the power of government to lift people out of poverty—perhaps even the nation state's duty to do so. If we agree that the government should play a role in responding to deprivation, is it fair for West Virginia to get more federal aid (assuming that it does on, say, a per capita basis) than, for example, Pennsylvania or Washington or Florida? Wouldn't it represent distributive equity to give West Virginia and similarly deprived states more? Of course, the Indian Constitution recognizes some socio-economic rights, e.g., the right to life, which has been construed to obligate the state to provide a certain healthcare and education infrastructure. The U.S. Constitution makes no similar provision, protecting only civil and political rights. (Yet, as Robert Byrd once pointed out, "The Constitution does not prohibit humble servants from delivering whatever they can to their constituents").

Constitutional and other legal mandates aside, the question remains: what should government do in the face of grossly uneven development and the resulting spatial inequalities in access to infrastructure and services? What is just and ethical? I've been writing recently about Amartya Sen and Martha Nussbaum's capabilities framework for assessing well-being, including their thinking about government's role in endowing residents with core capabilities such as those life and bodily health. I'm recalling Sen's use of the phrase "antecedent inequality" to justify giving more to those with less, to raise them to a sort of parity with the "haves." That has me reflecting on Robert Byrd's career a little differently than I previously had. I'm now wondering: is it really "pork" if it responds to antecedent inequalities? If getting sewage pipes into rural places—be they in West Virginia or India—helps rural residents achieve a minimum level of well-being, shouldn't we be doing it?

To circle back to democracy for a moment, consider this quote from Sen about the very nature of development:

Development consists of the removal of various types of unfreedoms that leave people with little choice and little opportunity of exercising their reasoned agency.

That leaves me wondering: At what point are citizens so deprived of what they need to survive—what Nussbaum refers to the as the life and bodily health capabilities—that they are effectively incapable of exercising the civil and political rights so valued by liberal democracies. Isn't the lack of sewage pipes and other basic infrastructure an "unfreedom" that cries out for development—whether in India or West Virginia?

Cross posted to SALTLaw.org/blog and Legal Ruralism.

Polling place at Murray, Arkansas
Photo © 2010 Lisa R. Pruitt

I've thought about vote buying a lot over the course of my life.   I'm not talking about how corporations and other affluent actors donate money to campaigns in hopes of swaying legislators' votes, or even lower-scale political patronage type activity.  I'm talking about the phenomenon at the individual level in what is arguably its most base and disturbing form:  The payment and acceptance of cold hard cash for one's vote in a particular political race or slate of races.

I've been thinking about vote buying again lately because I discussed it a bit in this recent essay and because a friend from Kentucky mentioned that, in the wake of the state's May 18 primary, federal investigations into vote buying are underway in several counties in the Eastern part of the state.  (Read some  news coverage of those investigations here and here.  Also, here's another interesting Kentucky story from earlier this decade.)

My interest in vote buying goes back to my childhood.  My father was involved in vote buying in the rural Arkansas county where I grew up, and he was quite open it.  I recall rather vividly one election night when he and other local men gathered at our kitchen table with the paper ballots cast that day.   If memory serves me well, they were checking to see if various people had, in fact, voted as they had been paid to do.   This was in the 1970s and 1980s in rural Arkansas, where people still cast paper ballots; in fact, I think they still do in Newton County.  My father was a life-long Democrat who bought votes on behalf of the party's local candidates, but the local Republicans engaged in the practice, too.  Indeed, the Newton County Judge (in Arkansas, the county judge is the chief elected administrative officer) was convicted of vote buying in the late 1980s and spent some time in federal prison.  U.S. v. Campbell, 845 F.2d 782 (8th Cir. 1988).

I recall questioning my mother about the hows and whys of this practice in the same way that my son now questions me about the hows and whys of things like why people don't fall out of roller coasters and what the sky is made of.   She couldn't answer all of my questions any more satisfactorily than I can answer those of my child, but some of the questions and answers included these:

• Where did my father and his cronies get the money to buy the votes?  I knew none of the people doing the buying were wealthy, and most--like my family--lived pretty much hand to mouth.  Were they spending their own money?  If so, what benefit did they get from electing the county judge or sheriff of their choice?  Getting the nearest dirt road graded came up a lot in my mom's answers to this one, which suggests that vote buying is, in part, an exercise in political patronage.  It simply bypasses campaign finance.   
• How could the vote buyer be certain that the vote seller actually delivered his or her vote?  I later understood the paper ballot system and its numbering better.  This wikipedia entry suggests other ways in which votes were and are verified.  So much for the secret ballot!  In the Campbell case, the voter simply turned her absentee ballot over to the buyer.
• How many votes did you have to buy to sway an election?  In a county where only a few thousand votes are cast in county-wide elections, not that many.  As far as I could tell, most vote buying was focused on local races, as for sheriff, assessor.
• How much did a vote cost?   Not much, apparently.  I recall my mom telling me that it was as little as $5 or $10.  According to the report in the Campbell case, the defendant bought various citizens' votes for as little as $30 each.  Some folks held out for as much as $50.  This story suggests a range of $10-$50 in eastern Kentucky, sometimes accompanied by whiskey or beer.
• Why would anyone ever sell his or her vote?  As a young person, I was capable of great righteous indignation about various things, and vote buying was one of them.  I must have taken civics class very seriously because I was truly outraged that anyone would sell his or her constitutionally endowed right to have a say in our great democracy.  And yes, I also condemned the vote buyers. 

Now that I've been studying rural poverty for several years--especially the sort of persistent poverty that marks counties like the one in which I was raised (see a map of all persistent poverty counties in the U.S. here and note that 340 of the 386 of them are nonmetro)--I'm starting to see that the answer isn't (or isn't only) that  those selling their votes (or for that matter buying them) don't share my vision of citizenship and democracy.  It may well be that those selling their votes actually need the money--I mean, really need the money.  Yes, even $10--never mind $50--may make a big difference in their lives, at least for that month.

A recent visit to my mom in Arkansas and seeing the film "Winter's Bone" have both served to remind me of the value of a $20 bill in the rural Ozarks.

All of this leaves me wondering:  Is even democracy a luxury for the poor?

Cross-posted to SALTLaw.org/blog and Legal Ruralism. 

Parthenon General Store, Parthenon, Arkansas
(not a Census Designated Place and has no Wikipedia entry)
Photo © Lisa R. Pruitt

I started writing about rural people and places in relation to the law a few years ago, motivated in part by their near total absence from legal scholarship.  I grew up in a very rural corner of Arkansas, where most of my family of origin still lives, and it struck me that lives like theirs (and formerly mine) were largely unseen and unacknowledged by legal actors at scales other than the most local (and sometimes even by those, e.g, the Sheriff).  Rural residents comprise nearly 20% of our nation's population, but they are a forgotten fifth whose lives are in many ways different to what has become a presumptive but rarely expressed urban norm in legal scholarship.   (Katie Porter's work on bankruptcy in rural contexts is an important exception).  I started studying the legal relevance of rurality about a decade ago, and I have found so much to say that I have published only within the sub-discipline I call "law and rural livelihoods" since 2006.   I expect to spend the rest of my career exploring rural people as legal subjects and rural places as context, even if it sometimes feels as if I am writing my way into the very obscurity associated with rurality itself.

It is not surprising, then, that as a consumer of legal scholarship I find myself looking for rural people, for acknowledgment of rural difference, rural context, rural society.  Of course, rural-urban difference is not relevant to every legal issue or every piece of legal scholarship, but from time to time I come across a law review article that seems to cry out for some acknowledgment of rurality.   That happened last week when I saw on ssrn.com an essay by Jonas Lerman titled "Food Fights and Food Rights:  Legislating the 'Delicious Revolution.'"  Lerman's abstract states in part:

This Essay explores some of the civil rights and human rights dimensions of American food policy.  In particular, the Essay examines the weaknesses in America’s school lunch programs, and the problem of “food deserts” – the dearth of grocery stores and farmers’ markets in

America’s poor and nonwhite urban neighborhoods. These are complex problems, involving powerful agricultural interests, difficult public health questions, urban planning, and civil rights.

This is a nicely written manuscript about important issues that get surprisingly little attention in legal scholarship:  agricultural policy, food, and child nutrition.  But I was surprised and disappointed that in 51 pages, Lerman does not use the word "rural" a single time.   Nor does he use the word "nonmetropolitan."  The word "urban," on the other hand, appears thirteen times (more if you count the footnotes).  He talks about farmers' markets, farm policy, the Farm Bill, Farmer Barack, and occasionally plain old farmers,  but he doesn't mention the fact that a whole lot of food is grown in rural and/or nonmetropolitan areas.  He talks about what is good for cities and urban children without acknowledging rural children, their families, their nutritional needs or their communities.

On the one hand, Lerman's use of the modifier "urban" can be seen as progress.   That is, by specifying urban people and contexts, he is at least not pretending to refer to all children when his real focus is those who live in cities.  There is precision and honesty in this.  Unlike many legal scholars, he is not merely assuming the urban; he's expressing it.

Now, I do understand that urban ag, slow food, and Alice Waters are hot topics these days.  I also appreciate that even (or especially!) law review articles need a little marketing.  Still, given that food insecurity and child obesity are as much rural problems as urban ones and given agriculture's importance to rural economies, I would expect rurality might play at least a cameo role somewhere in the discussion.  (Read more about rural food insecurity and food deserts here,  here, and here.)

A few days after seeing Lerman's essay, I came across Katharine Baird Silbaugh's article,  "Sprawl, Family Rhythms and the Four-Day Work Week."   Rural people and places are more visible here, even garnering a mention in the abstract.  Here's an excerpt:

This Article seeks to highlight some of the institutional practices that influence the adoption of a four-day work week, particularly those associated with sprawl. It compares the reform to school districts that operate a four-day school week as a cost-saving measure. School systems choose a four-day week because they are rural and long distances create particularly serious time and transportation costs. This comparison helps to reveal the role sprawl and its impact on commutes plays in the four-day work week reform.

Professor Silbaugh uses "sprawl" as it is most commonly used now, to refer to a metropolitan phenomenon.  Fair enough.  Of course, the word sprawl is also an accurate descriptor of the lay of the land in rural areas.  That is, one defining characteristic of rurality is low population density--residents far flung across often vast spaces.  Kudos to Professor Silbaugh for seeing this link and acknowledging what might be seen as a rural "solution" to dealing with spatially dispersed populations:  the four-day school week.  What Professor Silbaugh doesn't do (presumably because her focus is the role that "urban sprawl plays in generating worker demand for a compressed work week and citizen demand for extended service hours") is acknowledge that the four-day work week (along with the upsides and downsides she identifies) would have similar impacts on rural families.  Not only must rural children traverse great distances to get to school, rural women (and men) must traverse them to get to work.  In fact, the rate at which rural mothers work outside the home is higher than that for their urban counterparts!  Read more here.

Of course, I appreciate (and greatly enjoy myself) the latitude that legal scholars enjoy to define their research agendas and to state the parameters of each article.  It's easy for a reader to say, "but what about ...."   Those "what about" questions can can go on endlessly, and they get in the way of the laudable goal of writing shorter law review articles.  Nevertheless, some legal issues cry out for an acknowledgment of rural difference.   Authors might ask how a given law would affect rural residents?  or whether a law would operate in the same way in rural places?

Taking our nation's rural population seriously is perhaps too much to ask as we move into the second decade of an increasingly metro-centric 21st century.  But we could at least acknowledge the very existence of rural people and places more often than we do.  In the context of legal scholarship, surely the rural experience is worth at least an occasional law review footnote.  Progressive legal scholars, who generally seek to be inclusive, could start with that.

Cross-posted at SALTLaw.org/blog.

Small-town America
Photo by M. Jeremy Goldman

Anyone who is following the debate about immigration and its reform in the United States is familiar with rhetoric disputing what America's core values are as a means of supporting the competing visions for who gets to be an American—or, at least, who gets to be in America legally. Those opposing immigration talk about how the newcomers are changing America too much. Those in favor of more lax immigration laws remind us that the United States has always been a nation of immigrants.

Nowhere is this debate being waged more vigorously than in what might be thought of as America's heartland. I was reminded of that fact this morning when I read that 57% of voters in Fremont, Nebraska, population 25,576, voted in favor of an ordinance that will "banish illegal immigrants from jobs and rental homes." One of the things that makes the Fremont ordinance unusual among anti-immigrant activity by smallish local governments is that residents demanded this referendum—taking the matter all the way to the Nebraska Supreme Court—after city officials voted against such an ordinance. Interestingly, the primary reason that the city's political leaders opposed the ordinance appears to be the litigation it is likely to prompt—litigation the municipality can hardly afford. Read more here and here.

The New York Times reporting on these Nebraska events is full of small-town imagery and associations, such as the lack of anonymity that has caused community division over the ordinance to play out in especially personal acts of violence and vandalism. (Don't miss a related multimedia feature here). But what struck me most in reading Monica Davey's story today was the small-town, American values rhetoric being used by both sides. On the one hand, immigration foes in Fremont "complained that illegal immigrants were causing an increase in crime, taking jobs that would once have gone to longtime residents, and changing the character of their quiet city, some 30 miles of farm fields from Omaha." On the other, an opponent of the ordinance said it tells "the Hispanic community that the Anglo community is saying they are not welcome here. They thought they were coming to a small-town community with small-town values."

This talk about "small-town values" and the "character of their quiet city" brought to mind the stasis and homogeneity that has typically marked many rural communities, even those like Fremont that have grown into micropolitan areas. It is not surprising that static and historically homogeneous populations would have a harder time than more cosmopolitan city dwellers adjusting to the changes immigrants bring with them. Current residents of places like Fremont may conveniently forget the Scandinavian or other European immigrants who founded these heartland communities a century and half ago. Others, however, see "small-town values" reflected in the charitable act of welcoming newcomers, of being good neighbors to them. These more welcoming residents often also appreciate the work ethic and family values that Latina/o immigrants in particular bring with them. (I have written some about these issues in the Harvard Latino Law Review here; related posts and news items are here and here).

Thinking about events in Fremont—about this culture clash in the context of the American heartland—reminded me of the agrarian roots of these "quintessentially 'American' spaces" (quoting Steve Striffler, Neither here nor there: Mexican immigrant workers and the search for home, American Ethnologist (2007)). Jim Chen has written of the extraordinary influence of our nation's agrarian past (as well as its evil consequences) on law, and Barbara Pini has written of the moral high ground that farmers enjoy in the Australian context.

In light of the power of the agrarian myth and its positive popular associations, isn't it interesting that so many immigrants are—in some ways—the heirs apparent of our agrarian past? They have become our agrarian present and future in the sense that they are doing so much of the back-breaking, low-paying work associated with intensive production agriculture and how and what we now feed ourselves—from picking crops to processing slaughtered animals. Read related items here, here and here.

Just as interesting (but also deeply troubling) is how America's heartland has become the terroir (and sometimes also the site of terror) for immigration enforcement. Two examples are the National Cattle Congress-turned-immigration court that "processed" detainees from the Postville, Iowa (population 2,273) raid and the raid on a Smithfield hog processing plant in Tar Heel, North Carolina (population 70). (More examples are here).

Obscure as rural America has become in our increasingly metro-centric nation, enforcement actions like these and anti-immigrant ordinances in places like Fremont, Nebraska have made rural America some of the most hotly contested terrain in our raging national debate over immigration.

Cross-posted to SALTlaw.org.