Dahlia Lithwick (3:06)

Michelle, let's start where I just started, if that's okay, talking about race. Two weeks ago, Donald Trump told four women of color, the so called squad, all of whom are US Citizens, to go back to their countries of origin. This past weekend, he attacked Representative Cummings, claiming that he was somehow corrupt and calling for an investigation. But he went further, calling Maryland's seventh District a quote, disgusting rat and rodent infested mess, saying that no human being wanted to live there. I don't even know what my question is, Michelle, but I cannot quite believe we're talking about race in terms of, you know, rat infested vermin. This is not right.

Michelle Goodwin (3:47)

Well, you know, I'm glad we started there. You know, what this administration brings forth is an opportunity for us to look at a tumor that has long festered within our nation. We've pretended that it's not there. We have softened the fight against recognizing it through civil rights legislation, which has been great. The Civil Rights Act, Voting Rights Act. But those very important pieces of legislation really papered over something that we've never fully addressed and dealt with. And it's a cancer that has been in our society for a very long time. We're reluctant and resistant to recognizing it. But in this era, one of the things that I've started off talking about is to think about, you know, we're a nation that. Not for just an hour. Imagine sitting through an hour where you saw naked children in chains on a auction block and they're being bid on by the end of the movie. We probably all want to throw up. I mean, just an hour of seeing that. But imagine that it goes on for a day, and a day we'd be horrified and we'd want to know, what can we do? And a week, a month, a year, a decade, we flowed with this for centuries, seeing that advertised not just in the south, but across the country. And then the federal government supported that through the Fugitive Slave act, which really made black people open for sale anywhere. Because freed black people who were living in New York and Boston and other places suddenly became vulnerable to people from the south coming New York, coming to Boston, coming to Baltimore and literally snatching them. And all they had to do was to be brought before a magistrate with some papers. And the Fugitive Slave act did not allow black people to testify on their own behalf so some random poacher from the south could come up with some fake paperwork. And say, this Negro belongs to us and we're taking him back to Mississippi. And that happened. And so we're a country that dealt with that for not just an hour and not just a week and not just a month. And how do you get beyond that? You know, a civil rights movement maybe addresses the Jim Crow era and the urgency of lynchings and the urgency of. Of segregation and whatnot, but it doesn't necessarily address the psychology of a people who could live with that and be settled with that. And clearly, there were people who were not settled with that. There were abolitionists who fought against. But we also don't engage that history, right? We. We don't think about who are the abolitionist heroes. We don't even hold up abolitionists as heroes. We don't have statutes across the country honoring abolitionists. In fact, many died. Their stores were bombed, their churches were bombed. None of that. We've not repaid the legacy that we owe to the people who tried to make us a better nation, whether they were the white abolitionists, the black civil rights heroes. And instead, what's the battle been over the last few years? It's been to maintain the statutes of Confederate soldiers who were opposed to this country's Constitution and its aspirations for equality. Now, that should tell us something. And so what we see now with the Trump administration, basically equating the places where black and brown people live with vermin, and perhaps equating black and brown people with vermin or telling black and brown people that they need to go back to where they came from. You know, what's interesting are the reports that suggest that he's speaking to Americans who believe that. And, of course, that tells us something else about the psychology of where we are, because so many white Americans, of course, they all are immigrants themselves. Donald Trump's children, our first generation, two of his wives were immigrants. And so, you know, it's very interesting that Americans don't recognize that. They don't see his wives as immigrants who've come from countries that one could say could use their expertise, because Melania Trump is in the United States, after all, on a genius visa. And, you know, and that's not recognized. Race matters. And I'm really happy to be with you on your show to talk about it and how it does matter in our country in these times.

Dahlia Lithwick (8:31)

So, Michelle, I'm going to tell you a statistic that I used to offer my children. When Donald Trump came down the escalator at Trump Tower and called all Mexicans rapists to launch his 2016 presidential bid the number I used to. My children at the time, who were quite scared and anxious for all the reasons that you're describing. I said 0.87%. That literally was the number. I said 0.87% is the number of Americans who think in these terms. And I look back, by the way, I would adjust that number up as his. You know, I was like, okay, maybe 2.4, maybe, you know, and by the election, I was like, I was completely wrong. But I bet you never told your friends and family that 0.87% of Americans were just.

Michelle Goodwin (9:19)

No. Well, because, you know, there's a way in which black and brown people, Asian people too, you know, it's a country that refused to allow Asian people to become citizens until halfway through the 20th century. But, no, that's never a thing that I've ever shared with my daughter. And I didn't have to. You know, when I think about what children of color go through in terms of coming up in the United States, there is a double way in which they have to approach life. You know, my daughter shouldn't have to be afraid of police. There was nothing about the neighborhoods that she lived in or any of that that should have warranted that. And yet my daughter's first articulation about fear of the police to me, out of nowhere, was when she was three years old. It was chilling, actually, for my daughter in the backseat of our car. I'll never forget the day, speaking about Brute police brutality. It was very interesting because it was only a year after that that in driving from south from Kentucky to Wisconsin, that we were pulled over between Illinois and Wisconsin. And I had a friend in a car, a very close friend, who's a white psychologist, and her seat was completely leaned back so one could only see me driving. Maybe my daughter propped up in the. In a car seat and an un. An unmarked car. That could have been a taxi or it could have been an unmarked police car. I wasn't quite sure. Had been following me for miles. And I'll make this story short, but eventually it put a white light on me. Not a red and blues, because there weren't red and blues, but a white light. And I was terrified. And I pulled over. And here is the terror. Just within that time, there had been a young black girl who had been killed by police at a gas station in la, in New York. There was someone who had been killed holding up his keys. And I thought, well, if this is an officer and I don't pull over, I don't want my car being shot into, and it's my daughter. And I don't know why I'm being stopped at all. But I pulled over and I asked the gentleman to tell me why he pulled me over and if he's a police officer, and if he's not a police officer, that I would drive off. And at that time, he pulled out his baton and began beating on my car, saying, I'm a police officer, I'm a police officer. At which time my friend woke up and screamed, drive off. But I couldn't drive off. Her sense as a white woman in the car was, drive off. This is a lunatic. My sense is that if I drive off, this guy may shoot in the car and kill my daughter. Fortunately, I had a cell phone on me. This was 20 years ago. I called the police. It turned out he was a police officer. And they knew that he had followed me for over 30 miles because he had just been harassing another group of people of color some 30 miles before. These are the kinds of things that black people experience. We shouldn't. I shouldn't. My daughter should not have been terrified that night at 4 years old with someone beating on the car like that in the middle of the night for no reason, who was an officer. But that's my reality. And it's also why I can then relate to the stories of others that we might dismiss and say, well, that's because they're poor and they must have been doing something wrong. I was driving a Volvo that night at speed limit. So go figure.

Dahlia Lithwick (12:57)

So, wow.

Michelle Goodwin (12:58)

Okay, well, so the different stories, right? The different stories. I mean, sometimes we don't even have to tell our kids the different stories, but we do have to find a way to help our. Help our kids, in my case, help my students too, but. But help our kids understand and navigate. And this is where I think it is so important to think about the history, the legacy, the amazing work that's overlooked of older black Americans, many of whom have now passed on. Because when I think about my grandparents and their legacy, I mean, these are the people who were not enslaved themselves. Their grandparents were. Their parents were just a foot out of it. But these were the people who living through the promise of the United States to be a better nation post slavery reconstruction, but experience Jim Crow horrific lynchings. My maternal grandmother was born in Mississippi. She had a brother who had to escape Mississippi after a lynching, being cut down and put in a trunk of the car and driven north. But these are the people who held the promise of what the United States could be they get no credit for that. These people who really fought to make the 14th amendment come alive. The 14th amendment is what gives us equality under law for all of us, equal opportunity and due process. These are the people who really made that real. And we see it manifest. Manifest now with the Greek regard to disability rights, with regard to LGBTQ rights, with regard to women's rights. But that wasn't real before them. And you think these are the people whose houses were bombed, their churches were bombed. These are the people who put up all of the equity to fight that litigation. You know, when you think about Brown v. Board of Education in these cases, many people don't think about, well, how is that funded? You know, there was no Bill Gates writing checks in the 1940s and 50s so that we could have this litigation that would bring about desegregation in schools, in housing, in parks, and so forth. The people who funded that were poor black farmers, teachers, housekeepers, maids. We have no idea that history is all but forgotten. Nobody talks about it. They sacrificed everything for the promise of the United States living up to its ideals in its Constitution. And imagine if we only spent more time thinking about what it must have taken to have that kind of commitment to the promise of this country, that kind of steadfastness and perseverance, a kind of love for a country. Because when I think about my grandparents in that way, and I kid you not, I never once heard from them the kind of hateful, vile that I've heard coming from this administration about white people. I never so much as heard my grandmother reference the hatefulness about the people of Mississippi who were involved in so much of the worst of what we've seen. It was all really, how do you move forward and how do you do that in the right ways?

Unknown Slate Staff or Guest (16:15)

So.

Dahlia Lithwick (16:16)

So I actually wanted to add. Focus on that for one second, Michelle, because one of the really interesting for me, the sort of mental feat of Donald Trump going after Elijah Cummings and going after this actually thriving black community. As people like Nate Silver quickly pointed out, Cummings district actually has above average college education rates, home prices, a really highly functioning working class and middle class. It's actually the second wealthiest, majority black district in the entire country with a $58,000 median household income. This is not, in fact, an infested district. This is a booming district that houses some of the greatest universities and other employers in the country. One of the things that is interesting to me is he ran explicitly right in 2016 at a campaign rally.

Unknown Slate Staff or Guest (17:16)

He.

Dahlia Lithwick (17:16)

He thought he was winning African American voters by painting their neighborhoods as these hellscapes. And he's shouting at this crowd, you're living in poverty and your schools are no good and you have no jobs. And then he literally says, what the hell do you have to lose? And it's such a weird posture to say every one of you is suffering. I mean, it's exactly the opposite of, in fact, what's happening in Representative Cummings district. And I wonder why. I mean, does he think this is a way to win the black vote or is just the cynical, cynical posture here to tell white voters that all African Americans are vermin? What is he doing?

Michelle Goodwin (18:00)

Well, you know, it's a great question, and I think it could only be answered with nuance because it's complicated, because it speaks to many things. The first thing is to understand that this is an old playbook. And so if we go back to where I started, what, what do you have to tell yourself in order to see a child bid on day in and day out, and posters papering neighborhoods and in newspapers, slaves for sales, you know, mulattas for sale. How do people become mulattas only because you raped their mothers and now you're selling off your children? So what stories must people tell themselves to get through that? Right? I have to tell myself that, you know, my child here is no more than a goat, a pig, a cat, or something else. In order to sell her and make some profit right now, I have to tell myself that what I'm calling a winch right here is not a human being, even though everything about her is. Is human. And so what stories must we tell ourselves today in order to justify the positions that we have, in order to justify privilege that we have, in order to situate our privilege, right? What stories must we tell in order to say, well, this is why my school, where my child attends, must stay white. It must stay only white. My neighborhood must stay only white because otherwise these other people will infest it. We could tell ourselves different stories, and those different stories would produce a more robust America as we see, you know, Silicon Valley tells us all the time. Diversity, you know, certainly helps Silicon Valley, the people who are doing well there, people are coming from all around the world, investing in their knowledge and sharing knowledge and so forth. And so one part of this is the lie that we must tell ourselves in order to keep the United States as it is, to keep privilege as it is, to keep a. A story, a distorted story about who are the people who have benefited from a welfare state. You know, in the United States, that picture gets painted as black And Brown. But as Dr. King said, and those orations are worth looking at. You know, when white immigrants were coming to the United states in the 20th century and parts of the 19th century, they were given acres and acres of land who populated the Midwest, all that open territory. Here it is land grants, here are universities, here are high schools, all of that, right? We don't talk about that. So, you know, this story about who's vermin and how we have to keep the playbook going, it keeps us from being educated. It keeps us from, you know, seeing who has privilege. It keeps us from really thinking about entitlement. It keeps us from seeing, you know, who's benefited from the largess of the United States and, you know, and who's been subsidized in the United States. You know, it's convenient to tell the story that it's black and brown people who've been subsidized and who ruin an economy. This is what Ronald Reagan did. I mean, let's take a moment to think about Reagan, a governor of California, of all places, to launch a presidential campaign. You might think, well launch it in California. You might think, well launch it in the Midwest. You might think, launch it on the East Coast. But would you think, launch it from Philadelphia, Mississippi? Who would do that? And what is Philadelphia, Mississippi known for except the horrific murders of three young civil rights leaders? Three young people, Goodman, Cheney and Schwerner, who had gone to Mississippi to register black people to vote. It's the only thing that Philadelphia, Mississippi had been known for. And there are brutal murders. And it's from that campaign that Ronald Reagan, who's now seen as a warrior Republican compared to, you know, the stands that are now taken about amongst Republicans. But it was from there that he launches this narrative about the welfare queen, right? And it's convenient and people latch onto it. Our nation's economy is suffering because black women are on welfare, even though more white women receive assistance than black women do and, and so forth. But anyway, so this, this story about the vermin and who's rat infested and where are the infested and all of that, you know, as part of a very old playbook. But I would say this as well, it is also worth noting the fact that black people have suffered and that unemployment has been unequal and housing has been unequal. And that must be addressed too. And the last thing that I must chuckle about is that, you know, look, the New York Times has been running stories about the rat infants infestations of Manhattan, right? And Brooklyn and Whatnot. So. So, you know, again, we have to keep our eyes open. This very notion of, you know, rat infestation, please. In New York, you know, there are millions of dollars being spent in the wealthiest neighborhoods in the nation to figure out how to keep the rats down because of the way in which people live and the way they put out their trash in wealthy Manhattan and wealthy Brooklyn. So. Right. So, you know, as they, as the old folks say, keep your eyes on the prize and maybe keep your eyes open. Right.

Dahlia Lithwick (23:19)

And the Manhattan rats, you could saddle those up and, you know, I mean, they're big old rats.

Michelle Goodwin (23:24)

They are. They're carrying pizzas to their parties. Right.

Dahlia Lithwick (23:30)

But you get to something that I think is really at the heart of so much that you write and think about, Michelle, which is this problem of invisibility. It's not just, you know, black and brown people, it's black and brown women. And they get shelled from all corners under the narrative that you're describing. And I think when I think about this administration, the invisibility of black and brown women in the cabinet, in any high level positions, the idea that Elaine Chao is somehow evidence of the munificence of this administration toward women of color. Not anywhere in evidence, in judicial picks, in, you know, it's as though we're back in 1950 and you write and think about brown and black women's bodies all the time. And I wonder if maybe you can talk a little bit. This is something that more than anything else, it seems to me, whether it's what you've worked on in terms of women and mass incarceration, reproductive rights, the criminalization of pregnancy, the ease with which we slide from talking about black and brown bodies to even lower when we talk about women.

Michelle Goodwin (24:48)

And let me just say, you know, when I began my law teaching career 20 years ago, you know, my work was in ethics and biotechnology. It still is. But I couldn't help but notice and respond to the criminalization, the unequal treatment, you know, women, you know, black women who sought to carry their pregnancies to term, being arrested because they had a miscarriage, being forced into plea deals with the threat that they could go to jail for Life. And wouldn't 20 years or 10 years behind bars for a stillbirth or a miscarriage be better? And I thought, this is horrific. And Dorothy Roberts was writing about this and had few others were paying attention to this. I thought, why aren't the people who writing about criminal law writing about this? How come others who care about health law aren't writing about this, those who care about women in the law, why aren't they writing about what these women are enduring? And again, it's a long legacy. We live in a country that could look the other way at black women being reproductive chattel, physical, sexual, and then reproductive chattel. And that did so for centuries and has overlooked the contributions of these women and in many myriad, you know, ways. And so my work has focused on lifting up the experiences that these women have had. You know, I mean, I write about organ transplantation and trafficking there and, and, and have real impacts there. But this work to me really hits the soul. One can only weep at the images of the police mug shots of black women who've had their kids taken away from them because they went on a job interview and left their kid with a cell phone in a park to call them if anything happened. Or mother who was homeless, who did a job interview and left her kids in the car while she did the interview and the mug shot after. What you see are women who are trapped. You see a society that constantly shifts what the foundational line is. It used to be fine that kids could be in parks, climb trees without cell phones. I did that when I was a kid. I loved going to the park and climbing a tree. I didn't need a cell phone. Today with black mothers, some if their kids are in parks and they're 9 and 10 and 11 years old and the mothers are not there, this could lead to police being called on them and the mothers being tossed in jail. If you're wealthy and you live in a wealthy neighborhood, you don't have to worry about that. Although I will say this, and it's a point that I've been making in my writing for a very long time, and that is black women are the canaries in the coal mine. Once you begin permitting law enforcement to invade, whether it's the hospital where women are being treated, invade the privacy of families lives, and to then have precedent before courts with doing so, then everybody becomes vulnerable to it. It's not just black women. And that's the story that's being played out now. If in fact there had been closer attention to the experiences of black women in the 1980s and 90s during the United States crack scare, where black women were called crack moms and their babies were called crack babies, and in the New York Times, Washington Post, and virtually even Rolling Stone, there was so much mishandling by journalists of the stories of people's lives. The children were called defective. There were so many inaccuracies that were reported. But if during that period of time there was greater attention to the kinds of dangerous legal happenings taking place, to the abuse of prosecutorial discretion, to the abusive ways in which these women were being dragged out of hospitals in chains and shackles, literally, after getting giving birth in bloodied gowns or giving birth in prison toilets and on concrete floors, if we were a nation that cared enough to look at the experiences of black and brown women and to see that as inhumane, I don't think we would be going through what we are now that white women are now facing. Right. And this is with the attacks on abortion rights and reproductive health care more broadly. Sadly, black women were the canaries in the coal mine. The precedent was being wrought out on them. And whether this was part of the Christian right being involved in this or just simply the way in which our nation is sometimes shown such hatred against black women is a myriad. It's, it's as a blurred story there. For multiple reasons, these things perhaps were being justified. But now these are the concerns of white women, women.

Dahlia Lithwick (30:21)

I love that you just said that, Michelle, because I was reading an article you did, a law review article where you talked about how passionately even Dr. King and Coretta Scott King were fighting actually for family planning. They thought reproductive rights was right. He called it a special and urgent concern. This was, in his view, an essential component of race equality. And we've completely erased that part of the story too, right?

Michelle Goodwin (30:53)

Absolutely.

Dahlia Lithwick (30:54)

These were braided together.

Michelle Goodwin (30:56)

They were. In 1966, Dr. King receives Planned Parenthood's first Margaret Sanger Award. He receives it proudly. His wife goes to receive the award on his behalf because he was in the fields, probably being arrested. He follows up with a letter to Planned Parenthood about how proud he was to receive the award. His speech, you are absolutely right. He says that this is essential. He says that, that nothing's more cruel to, than to bring a child into the world where it's not wanted. He speaks specifically to the shifting nature of, of America going from an agrarian economy where it was normal to have eight to 10 kids, to going to a more urban setting where you cannot possibly adequately with any kind of justice, house. 10 people, 10 kids in a one bedroom tenement. He speaks to all of this. He speaks to the importance of family planning and how urgent it is that women are able to do this and that families are able to do this. He puts this within human rights terms. You know, he does that in 1970. And I think tied to that, it's important to note that it was Prescott Bush, the father of George H.W. bush, who was the treasurer at Planned Parenthood. And it was George H.W. bush, who helps to shepherd Title 10 through Congress. Title 10 provides reproductive health care for the poorest of Americans. Is in 1960s 70s, Nixon signs this law, Title 10 into law, saying, well, you know, this is just basic common sense that people should have access, poor people should have access to reproductive healthcare, contraception, pap smear screenings and other things. You think this was common sense and, and not for some eugenical reason, which is the, the line that Clarence Thomas is now writing, but just for basic, basic public safety, health, the dignity of families. And the narrative has shifted now. And I. I'm so happy that you reminded the audience of that, because many people would not know that. And they wouldn't know that there were other religious leaders who strongly supported reproductive health and rights and that supported Roe v. Wade. Right. With. With women dying and girls dying in bathtubs and on kitchen tables and in seedy motels with botched abortions. Religious leaders were also at the forefront of saying this is not right. Something much more humane needs to come into focus. And, Dalia, if I could just take a moment to share this too, because I think we're also in a space where we've given up on science. Science has gone out the door. You know, facts don't matter anymore, and they should. And here's one that's really important, and that is a woman is 14 times more likely to die by carrying a pregnancy to term than by terminating her pregnancy. Now, there are people who may not like that statistic. I mean, we shouldn't like that statistic because we should want women to be healthier during their pregnancies. We shouldn't lead the developed world in terms of maternal mortality. The United States ranks 50th in the world in terms of maternal mortality. Texas is considered the deadliest place in the developed world for a woman to give birth. It's safer to give birth in Bosnia and Saudi Arabia than it is in the United States. But that all aside, terminating a pregnancy, pregnancy is one of the safest things that a woman can do to actually save her life. Now, I'm a mother. I love my daughter. I enjoy my time with my daughter very, very much. But we've made it as if it's a loony thing for a woman to think about terminating her pregnancy. Now imagine if there were another medical condition where we knew that a person was 14 times more likely to die. Die by carrying out a. Their vision. In a certain protocol and 14 times unlikely to die by doing the other. We'd say, strongly consider the other where you're gonna live. Please do so. And we'd look at the economics of it and we'd say, wow, well, if you do the safer one, that's gonna cost us only a few hundred dollars. If you do the riskier one, that's going to cost us tens of thousands of dollars. And you may not even want to do the risky one. And here's what we have as a government that forces it's, it's like it's forcing women, pressuring women. Do the risky one. Do the one where we know you're 14 times more likely to die. And why? Because male legislators deem it so. I mean, there's more of a conversation that we could have on that. But I do think that it's important to touch on the empirics of that space.

Dahlia Lithwick (36:24)

We know you value the journalism we do here at Slate, and now more than ever, this work needs your support. The very best way to support our work is via our membership program, Slate Plus. And with a Slate plus membership, you can enjoy this and all of Slate's podcasts ad free. Plus you'll have access to exclusive bonus content from some of your very favorite Slate shows. There's a free trial to be found@free slateplus.com Amicus let's return now to our conversation with Michelle Goodwin. She's the Chancellor's professor of Law at UC Irvine School of Law. And we are talking about race, gender, and the Constitution. You know, this year when Alabama and Georgia and Ohio passed these incredibly draconian new abortion laws, what falls away if you watch the legislative debate debates is the tissue thin analysis we'd been hearing for decades that, oh, we just want women to make better choices. We want to protect them. Right. If we have admitting privileges, rules, if we have wider corridors in clinics, then they'll make better choices. And right. This is Justice Kennedy saying If cabinets.

Michelle Goodwin (37:36)

Are 10 inches higher off the floor, women will be smarter about their choices.

Dahlia Lithwick (37:40)

You know, they just, states need to see the seventh ultrasound and then they'll understand. And what you've argued in your writing, but you're saying right now that I think is just urgently important is that when the states actually turn on women and say, no, actually, now Texas says we are going to punish you because you're bad, not because we want you to make good choices, but because you're bad. And what you have just said. And I think it's so important that that tiny pivot that we all missed is not the case if you were a brown and black woman, because you were always being legislated as though you were bad. And the very framing that the Supreme Court has fallen in love with, which is right. And again, this is Justice Kennedy. No, we're not saying women are bad. We're just saying they make bad choices. Was never actually the framing for women of color. Right?

Michelle Goodwin (38:32)

That's absolutely right. You know, the difference between having absolutely no choice and a little bit of choice, but you know, the foundation as being one of infested, incapable, unseeming, and unable to think with clarity about their futures. The reality is that with brown and black women, they've been denied the opportunity to frame their futures. It's been the policing of their futures for centuries. In. And yes, there would be listeners that would say, well, clearly that's changed. There is no more slavery, Jim Crow is over. But, you know, there's spoilage in the soil. And that spoilage in the soil then rears its head in a variety of ways. And that spoilage in the soil can rear its head legislatively. If you look at who comprises the Southern legislatures, they're predominantly male and they're predominantly white. And these are the legislatures that are making decisions about women's lives. Those who are appointed or elected to the court resemble that as well. That's important to know so that when these cases go before judges, who are the judges that are listening to the stories of these women, if the cases get that far? Because, in fact, in the criminalization which we've talked about, there's a lot of plea dealing that goes on. And so these are layered systems. You know, it's a seductive thought that these are women who are acting with just pure old autonomy and whatnot. If only it could be. So. The legislative process in this space has really shackled women in a number of ways. You know, between 2010 and 2013, there were more anti abortion, anti contraception laws that were proposed and enacted than in the 30 years prior combined. And I think that that's really important for us to pay attention to as well. And that is that this isn't just something that's old. It's actually something that has been revamped. And in this revamping, it has been powered through influence, significant funding, and none of it relates to preserving, promoting women's health, women's equality. None of that whatsoever is related to that. And in fact, what we've just seen is a caucus in Congress that was all male and all White, white, deliberating about how to get rid of the Affordable Care Acts, mandates that provide protections for women. With commentary coming from this caucus about, well, I don't get breast cancer. Why should I be paying for, you know, mammograms and whatnot? That's not a reflection of a care about women. That's not a reflection about a care about women's health in this country. Not. Not at all. Not at all.

Dahlia Lithwick (41:56)

So you said something up top that I want to circle back to before I let you go, which is you said for a very long time, African Americans were collecting the money that they found in the bottom of the sofa.

Michelle Goodwin (42:13)

Yes. Church bake sales.

Dahlia Lithwick (42:17)

Trying to effectuate the kinds of changes that eradicated, at least formally, Jim Crow. And then you said. And they weren't angry. They didn't voice the kind of fury that they were entitled to voice. And I wonder if one of the things that's changing now is that a lot of people of color, for very good reason, have sort of given up on these structures, you know, on the idea that the courts are going to protect us or that the Constitution has a lane for them. And I am thinking about that. I just interviewed Heidi Schreck, who wrote and stars in what the Constitution Means to Me. And that is, in a profound way, a conversation about how women were written out of the Constitution. And the last show we did was with Marianne Franks, who makes the same point. There's no space. This is a cult that existed for white men to protect white men and to get all the stuff for white men. And that people of color and women are now feeling as though there's no place for them in that discourse. And I guess, I wonder, because this has been such an incredibly dispiriting conversation, Michelle, if you feel the same way, I mean, do you. Is there a space for you and me in conversations about the Bill of rights, the 14th amendment, the penumbras, where do we fit?

Michelle Goodwin (43:50)

It's an excellent question. So the first thing that I would say, though, is that there was fury. There just wasn't venom. Right. So. So there has been fury and, you know, amongst black folk since the time of slavery. The distinction is that I never heard at all, given what we can see on footage. The hatred, the mocking, the. The. The lynching teachings. I never once heard my forebears refer to white people as vermin, as rats, as infested in these ways. Right. So there was fury against that, but not that kind of what we hear. This. This racial hatred, this kind of spewing. But to your question with regard to, you know, where's the space for us now? You know, Professor Franks is so right. You know, the founding of this country, it was about a new day, right? You know, new Bill of Rights about equality. And there was a choice that legislators had in terms of how they could view the lives of all of the people who would be on this land. Right. Let us not go further without, you know, understanding too, what happened to Native Americans here with their land pillaged from them and robbed from them and being forced and marched off onto reservations, Right? That's part of this history as well, that genocide. And legislators and courts, they decided a different day. They decided to adopt coverture laws that would render women to be the property of their husbands. They adopted laws that said it was perfectly permissible for husbands to rape their wives. They adopted laws that said it was perfectly permissible for husbands to beat their wives. In fact, the rule of thumb comes from the rule that, you know, husband could beat a wife as much as he wanted, so long as the rod or piece of metal that he used was no, you know, wider than his thumb. These were the choices that they made. And when you look at then the court decisions along the way, you don't see women saying, well, you know, my future, I see it as just being in the home, locked down with my kids, my husband. Right? But you see court courts actually saying that. And I think that's a really important point because the narrative is this is what women wanted. But no, if you actually read the cases involving women trying to become lawyers, right, they want to practice with their husband and whatnot. Women wanting to own their own bar or work in their bar after hours and whatnot. You see the court saying, well, no, you're delicate, you lack reason. You're supposed to be in the home taking care of your kids. Kids. And so what does the future hold for us now? We've chipped away at a lot of that. And so now we do see women in positions of leadership, although we still see great and chilling racial disparities in that. I think that it's incumbent upon us to set the course for a better America. We owe that to our forebears. I owe that to the legacy of my forebears. You know, when I think about just the sacrifices that were made by them. Imagine being so intelligent and being so committed and so caring and being in a space of such ignorance. Imagine having to live through people saying such horrific things about you that are. Aren't true and that are used to bolster themselves, which are from a playbook centuries old. And knowing better than that, that and having to endure beyond that to still forge and build something better, that not just lifts you, but that lifts those ignorant white people who are doing that. Imagine fighting for better educational equality. And that ends up helping white parents who later have children with autism who want to have greater access to services in schools. And not being angry about this is the amazing legacy of those folks. It wasn't selfish. It wasn't do this just for me and mine. It was, this makes us all better. And so when I think about where we are today, yeah, we need a new Bill of Rights. We need a new reproductive justice Bill of Rights. I talk about that in my forthcoming book, Policing the Womb. Right. We do need to re situate and we need to think about our Constitution. And, you know, we're living under an older constitution. There are nations around the world that have far more recent constitutions. They've reevaluated their constitution. That's something that we need to do. But I also think we have to be committed to fulfilling the principles of the constitution that we currently live under. Enforcement matters a great deal. And at the ground level, our votes really matter. You know, very recently, my uncle Charles Mays passed. He was a field director with the naacp and he was instrumental with helping to lower the voting rights age to 18, which then would help young people be able to exercise the right to vote. I'm inspired by that legacy. I think that there is more work for us to do. I think it's in front of us. It's incumbent upon us. But you mentioned something else, Dalia, and I want to touch on it before we go. Go. And that is, are people just too frustrated? Have they just given up? Is this a time where they can no longer believe in the system of justice that we have? I will tell you that I've been inspired over the last three years by seeing some of our federal courts holding the line and saying, no, this is this. We. We will not. We will not bypass the rule of law in this country. The rule of law continues to matter. I say that our Supreme Court is a place that we ought to be concerned about because of its political polarization. It's not just ideological. It's now politically polarized. And this is very dangerous when it comes to women's equality. And we can see that from the decisions that have been rendered by this court even in this term. And so we have to. We have to be active in this democracy and we have to be mindful. And your show is very helpful with helping us to do that.

Dahlia Lithwick (50:46)

When your book comes out, I think we need an hour on that. Michelle, I think what I do want to say is I love that you have just somehow married together the hope that we see in the future, which I really do see and I'm sure you see in your students, with the hope we don't always credit to our grandparents and the people who came before who were selfless and who were thinking about a sort of larger vision of community when they did their work. We're in a kind of weirdly and I would say almost uniquely selfish moment in this country. But it is nice to hear you reference both the future and the past as modern models for how that might change.

Michelle Goodwin (51:35)

Thank you.

Dahlia Lithwick (51:36)

Dalia Michelle Goodwin is a Chancellor's professor of Law at the University of California, Irvine. She's founder and director of the center for Biotechnology and Global Health Policy at UC Irvine School of Law and its internationally acclaimed Reproductive Justice Initiative. She also serves on the executive committees and national board of the American Civil Liberties Union. And Michelle, it has been just an absolute treat to have you on the show. Thank you for the time. Time.

Michelle Goodwin (52:00)

It's been my pleasure. Thank you for having me on the show, and I look forward to the next time.

Dahlia Lithwick (52:07)

And now we have a little treat for you to wrap up today's show. I just mentioned in my conversation with Michelle Goodwin that I did a really amazing panel on Sunday night at the 92nd Street Y in Manhattan. It was a conversation with Lawrence Tribe, who is a constitutional legend professor at Harvard Law School, and Heidi Schreck, who is the author and star of what the Constitution Means to Me, which is a show happening right now on Broadway that if you think at all about the issues we talk about on this show, you must not miss. It's absolutely brilliant. What we wanted to do was bring you some of the highlights of that conversation. It really was, I think, in my view, one of the single most important conversations I've had this year. Enjoy.

Heidi Schreck (52:57)

Let me start with the Ninth Amendment, because it really, I really did fall in love with that amendment as a teenage girl reading the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. And after I'd looked up all those.

Michelle Goodwin (53:15)

Words.

Heidi Schreck (53:17)

I was like, oh, oh, this is telling me that I have rights that are not spelled out in this document. What does that mean? What are those rights? How do I find out? Who decides what could I just found it to be this, you know, I was also A kid I was like into science fiction and witches and magic. So it felt like this, a portal, like opening up into this whole other world of rights that I didn't know I had. And I also think, you know, I'm. I mean, I'm a playwright, so I think just relating that to being a 15 year old girl, not knowing who I was yet trying to imagine my own future, imagine who I might be one day. This amendment seemed to provide a space to imagine the future, which I think is in fact what it does in the Constitution. So I just became obsessed with that. And then I really became obsessed because of the ninth Amendment was William Owen Douglass, the way he talked about the penumbra. So the penumbras, you know, this kind of shadow, essentially the idea was that you could find these unenumerated rights in the penumbra of other rights. I started to learn about all of the ways that the court was able to use this idea of unenumerated rights to gain rights that maybe the founders could never have imagined we might need.

Lawrence Tribe (54:40)

There's one other thing, Heidi, about the ninth Amendment that always kind of spoke to me in a special way. Everything you're saying I think is true. I mean, the ninth Amendment is an invitation, it's a portal. I also loved science fiction, Ursula Le Guinn and Ray Bradbury and all that. But apart from that, most of the Constitution sort of doesn't talk to you like the First Amendment. Very famously, it says, congress shall make no law. I guess that's talking to Congress or Article 2, giving the President all these powers, not all the ones, of course, that Trump thinks he has the power to do anything. He says most of the Constitution sort of is internal, but there's one part and one part only that leaps off the page and talks to you. The reason it's the ninth Amendment, it says the enumeration of certain rights shall not be construed. What does that mean? It means you, the reader, cannot treat certain things about the Constitution as though they were exclusive. It tells you, it instructs you as the reader, whether you are a judge enforcing it, or a teacher teaching about it, or a student or a lawyer or an ordinary citizen. It sort of tells you how to read the thing. There's nothing else in there that gives you reading instructions. And of course the reading instructions themselves have to be interpreted. And there's a lot of debate about how to read the reading instruction of the ninth Amendment. But the very fact that it leaps off the page and started talking to me, I thought, well, I can talk Back.

Michelle Goodwin (56:18)

Yes.

Lawrence Tribe (56:19)

And that's an empowering thing. Quite apart from the content of the Ninth Amendment. It's sort of its syntax.

Heidi Schreck (56:25)

It is invitation to a dialogue. It is invitation to.

Dahlia Lithwick (56:30)

I've sat through I don't know how.

Unknown Slate Staff or Guest (56:32)

Many Judiciary Committee hearings for justices, and I find that when we get to the moment where they say, what does a judge do? And they start doing the strict construction Ouija board, we talk to the framers.

Dahlia Lithwick (56:47)

And that's what we do. You know, what would James Madison do? Wait.

Unknown Slate Staff or Guest (56:51)

And I find that so trivial. And it seems as though one of the things that you're both talking about now is trying to make that complicated, because it is complicated.

Lawrence Tribe (57:03)

Right, right, right. I mean, it's the idea that you could either engage in kind of middle dialogue with James Madison. I mean, all of that is.

Heidi Schreck (57:16)

That's also science fiction.

Unknown Slate Staff or Guest (57:17)

Yeah, yeah.

Lawrence Tribe (57:18)

Even Alito made fun of Scalia about that in one case that involved violent video games. And Alito asked the lawyer, he said, I think what Justice Scalia wants to know is what would James Madison have thought of violent video games? But of course, not even Scalia was interested in channeling what Madison would have thought. He was talking, to be fair, about the original meaning of these words. The trouble is they had numerous original meanings. They meant different things to different people, different framers, different ratifiers. They meant things to their proponents and things to their opponents. What they mean today is the issue. And I think the wonderful thing about Heidi's play is she makes it clear that that's the issue that everyone is grappling with. So that whether you are a so called originalist or not, not. The questions are still deep ones.

Unknown Slate Staff or Guest (58:10)

I think both of you actually reject kind of the idea of hagiography or passivity. I think that the whole Mueller will save us, RBG will save us, whoever the person AOC will save us. I think both of you are actually living refutation of the idea that some other person will save us. Each of you, you do it on Twitter more than anyone I know. But Heidi does it in the play. I mean, she's handing out constitutions. And I wonder if you could talk a little bit about, are people understanding the thing that you're saying, which is stop putting all your faith in a court or a constitution or a figure and put faith in yourself. Are we too far gone to understand that?

Heidi Schreck (58:57)

What I'm getting the sense of is that there are tremendous amounts of people who are ready to engage and try to make this country a better, more humane place. And there are a Lot of young people who are incredibly engaged and know much more than I did at their age about what we need to do.

Lawrence Tribe (59:14)

Well, my main way of encountering people generally is through Twitter. I mean, I get every imaginable kind of feedback. Lots of hate mail, you know, lots of violent, nasty, obscene stuff. But on the whole, people indicating that they're made more hopeful by the fact that there aren't any absolute clear answers, that it's a struggle, that they are part of the struggle, and that it's an interactive process. I mean, I may be fooling myself, but I get the sense that it makes a difference and that people out there are excited and are excited to be engaged in a process whose endpoint is unknown. But it depends on us.

Heidi Schreck (59:57)

I also think the problem with the reverence for the document is, like, I think many of us grew up reviewing it and then never really read it or knew what's in it. So you think like, oh, it's this perfect document that will keep us all safe and make sure everything's okay and I don't have to do anything. That, to me, seems like the danger of reverence. One of the reasons we pass out the Constitutions is to say, like, this is yours. You could change it if you want. I mean, the 27th Amendment got passed because some guy wrote a college paper about it and he got a C on it and then decided he was going to prove everybody wrong by getting it passed. I mean, you could. That's reductive. But.

Lawrence Tribe (60:38)

It'S close to true, though.

Heidi Schreck (60:39)

It's close to true. We are capable of shaping this document if we want to. We are capable of shaping this country if we want to.

Lawrence Tribe (60:48)

And there is no sort of. There's no Pope of the Constitution. There's no authoritative top dog that tells us what it means. The Supreme Court, as Justice Jackson once said, is not final because it's infallible. It's just treated as infallible because it's final. And it's not even all that final, you know, because its decisions can be overturned by amendment. Dred Scott was overturned by the Civil War and by the Civil War Amendments, and Plessy v. Ferguson was overturned by Brown v. Board, and hopefully Roe v. Wade won't be overturned. But, you know, that's pretty iffy. But the main point is it's something that we are sort of part of bringing to life all the time. And it's not as though there's some one authority that has the last word and then that's the end of it.

Unknown Slate Staff or Guest (61:39)

One of the things I think both of you are trying to do in your relationship to the law and the Constitution is closer to maybe biblical prophecy. Nobody ever says, like, oh, that second Samuel, he saved us. What they say is that second Samuel, like, stood there and hollered into the wind until people save themselves. And I think that for me, it's a really useful model for all the reasons you've just described of why this work that you are both doing, of telling people you're the boss of the Constitution, you're the boss of being morally and ethically serious in this mom moment. That is truly, I think, the most significant and compelling work. And I think looking at it in audience with some little people in it, I think it is what if something is going to get us out the other end, it's that. So please join me in thanking Larry and Heidi.

Dahlia Lithwick (62:48)

And that's all she wrote for this episode of Amicus. Thank you so much for listening in. If you'd like to get in touch, Our email is amicuslate.com we love your letters and you can always find us@facebook.com amicus podcast. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director of Slate Podcasts and June Thomas is senior managing producer of Slate Podcast. We'll be back with another episode in two short weeks.