The Washington Post - USA (2021-11-23)

TUESDAY, NOVEMBER 23 , 2021. THE WASHINGTON POST EZ RE A

BY STEVE LUXENBERG

T

he twisted pursuit of racial dis-

crimination once made it a crime

to sit in the wrong railroad car.

A crime.

To test and protest that unprecedented

Louisiana law, 29-year-old Homer Plessy

volunteered himself for arrest on a June

day in 1892. Now, nearly 130 years later, he

will be pardoned for his offense. Louisi-

ana’s governor says he will approve an

application from descendants of those in-

volved in the legal battle that became

known as Plessy v. Ferguson.

Like so much of the racial reckoning

now underway, Plessy’s pardon is both

atonement and opportunity. Atonement

for treating Plessy as a criminal. Opportu-

nity to learn about and honor the long line

of 19th-century men and women on whose

shoulders he stood.

It is important to remember that Plessy

did not act alone. Like many of those who

preceded him or came after, he was part of

an organized resistance — in his case,

mostly men of mixed race in New Orleans.

They called themselves the Citizens’ Com-

mittee to Test the Constitutionality of the

Separate Car Act.

Also important to remember: Separa-

tion on trains didn’t originate in Louisi-

ana. The pernicious practice began in the

North, two decades before the Civil War, at

the dawn of the railroad age. It evolved

after emancipation, as state legislatures in

the South were looking to go beyond the

custom of separation and enact laws man-

dating it.

These laws built on each other. Missis-

sippi’s version, passed in 1888, made it a

crime for a railroad to operate a train in

that state without separate cars. A railway

was soon indicted and convicted. In 1890,

on a 7-to-2 vote, the Supreme Court upheld

the Mississippi statute.

Emboldened, the Louisiana legislature

took its giant leap a few months later.

Criminalizing passenger behavior was an

untested legal concept. That’s one reason

the Citizens’ Committee thought it might

have a chance in the Supreme Court, even

though it had rejected previous civil rights

appeals with only one justice, John Mar-

shall Harlan of Kentucky, acting as a con-

sistent dissenter.

Plessy’s arrest was carefully choreo-

graphed. Before he boarded the whites-on-

ly train car, the committee’s chief activist,

Louis Martinet, alerted the railroad. A

conductor summoned a private detective,

hired by the committee, to make the arrest.

The committee’s legal team provided the

affidavit the detective filed in court. But

Plessy wasn’t tried and convicted as

planned. Instead, the presiding judge,

John Ferguson, issued a ruling upholding

the Separate Car Act’s constitutionality,

allowing an appeal on those grounds. It

eventually made its way to the Supreme

Court.

The legal team saw Plessy as the ideal

candidate for a test case. He was light-

skinned enough to pass for White, creat-

ing the sort of confusion that suited the

committee’s Northern lawyer, Albion

Tourgée. How, Tourgée asked, could a

train conductor enforce a law that re-

quired him to know a passenger’s race,

especially in Louisiana, with its large

mixed-race population?

That novel argument didn’t move the

court. The 7-to-1 majority (one justice did

not participate) scorned Tourgée’s claim

that the 14th Amendment’s twin guaran-

tees of equal protection and due process

prohibited states from giving conductors

the power to judge race and make arrests.

Instead, Justice Henry Billings Brown’s

1896 ruling accepted and embraced racial

separation as common practice, saying

that “in the nature of things,” the

14th Amendment “could not have been

intended to abolish distinctions based

upon color, or to enforce social, as distin-

guished from political, equality, or a com-

mingling of the two races upon terms

unsatisfactory to either.”

On the legal question, Brown’s ruling

was narrower than commonly under-

stood. It declared that Louisiana’s legisla-

ture, under its “police powers” to keep

peace and order, had the authority to enact

such a law.

Plessy’s conviction came eight months

later; he pleaded guilty in order to finally

end the long case. The committee paid his

$25 fine. “In defending the cause of liber-

ty,” the committee later wrote, “we met

with defeat, but not with ignominy.”

Notably, although Plessy is often de-

scribed as the case that put forth “the

doctrine of separate but equal,” the majori-

ty ruling did not use that phrase or set

down a doctrine as such. It would take

several decades for Plessy’s importance to

grow, as courts cited the case as precedent.

That long evolution has allowed us to lay

the blame for the insidious spread of segre-

gation — in transportation, in schools, in

housing, in public accommodations — at

the door of the Supreme Court. But segre-

gation’s spread isn’t just the shame of the

Supreme Court. It is the shame of the

North, the shame of the South, the shame

of the country. Pardoning Homer Plessy is

another symbolic step in acknowledging

that shame. It is fitting that Plessy, whose

name has been associated for so long with

such an infamous ruling, is helping us on

the long road of racial reckoning.

Steve Luxenberg, a longtime associate editor at

The Post, is the author of “Separate: The Story

of Plessy v. Ferguson, and America’s Journey

from Slavery to Segregation.”

Plessy’s

pardon brings

opportunity

for atonement

A

t least we have proof that

ignorant, self-destructive

stubbornness is not a unique-

ly American trait: Witness

the big and raucous weekend protests

in Europe, Australia and elsewhere

against coronavirus vaccine man-

dates that are intended to do nothing

more sinister than save those protest-

ers’ lives.

A shocking riot in Rotterdam that

the Dutch city’s mayor called an “orgy

of violence.” A huge demonstration

that filled the streets of Vienna. Pro-

tests in Belgium, Italy and Switzer-

land. Big “freedom marches” in Syd-

ney, Melbourne and other major Aus-

tralian cities. Chaotic unrest in the

normally laid-back Caribbean island

of Guadeloupe, a French territory.

Most of those places have decreed

mandates and restrictions that go

beyond anything imposed or even

contemplated in the United States.

Some of the governments under fire

have arguably been tougher than

necessary. Austria is going all the way

— imposing a nationwide lockdown

and announcing that all citizens eligi-

ble to get vaccinated must get the jab,

period, whether they want it or not.

But the misguided anti-vaccine ral-

lying call is basically the same around

the world: We want our freedom! And

the result, sadly, is that all of us —

protesters included — will be less free

to resume our normal lives.

It is becoming clear that a new

wave of covid-19 is gathering

strength. The situation is worsening

most rapidly in Europe, where Ger-

man Chancellor Angela Merkel said

the present surge could end up being

worse than anything her nation has

seen to date. Health Minister Jens

Spahn was more melodramatic, say-

ing Monday that by the end of winter,

“just about everyone in Germany will

probably be either vaccinated, recov-

ered or dead.”

More cases but fewer deaths: Is

that some kind of paradox? Not at all.

It’s the result of the fact that nearly

60 percent of Americans, and around

80 percent of those most vulnerable

to hospitalization and death, have

been fully vaccinated against the

coronavirus. U.S. cases of covid-19 are

also rising again; according to The

Post’s tally, on Monday the seven-day

average number of cases was 92,904,

an 11.6 percent increase from Monday

of last week. But the average of daily

deaths was 1,116, a 4 .6 percent de-

crease from a week earlier.

The vaccination totals in the Euro-

pean countries now having such trou-

ble are generally as good as ours or

even better, however. And the history

of this pandemic has been that what

happens first in Europe happens next

in the United States.

If a winter wave of covid-19 is

inevitable, then, the key to minimiz-

ing it — and having something like a

normal holiday season — is, you

guessed it, vaccination. Those who

have never been vaccinated need to

get over themselves and roll up their

sleeves. And those who were vaccinat-

ed more than six months ago need to

get a booster shot.

The unvaccinated are the bigger

problem, because they are the group

most likely to be infected with the

coronavirus, to spread it to others, to

become sick enough to require hospi-

talization and — tragically and unnec-

essarily — to die.

They are the virus’s best friends

because they give it a big pool of

welcoming hosts. Come in and make

yourself comfortable, they effectively

say. Feel free to experiment with new

mutations. Maybe you’ll get lucky

and develop one that the vaccines

can’t defeat. If you do, I’ll pass it along

to my friends and family.

Of lesser but growing concern is

the fact that Americans who rushed

to get vaccinated in the spring are

not moving quickly enough to get the

one-shot boosters that are now avail-

able to all. We now know that the

protection offered by the two-dose

Pfizer and Moderna vaccines and the

single-dose Johnson & Johnson vac-

cine wanes over time. Just because

you were “fully vaccinated” in March

or April doesn’t mean you’re still

“fully vaccinated.” You should get

that booster.

Those who try to make people

believe that the vaccines “are not

preventing infection,” as Florida

Gov. Ron DeSantis (R) claimed last

week, are lying. The vaccines prevent

most infections, but not all. They

make it more difficult to transmit the

virus to someone else, but not impos-

sible. Most important, being vaccinat-

ed means that if you do get infected,

unless you also have some condition

that keeps the vaccine from boosting

your immune system — like the late

Colin L. Powell, who had multiple

myeloma — you almost surely will not

become gravely ill or die.

Anti-vaccination zealots here and

abroad who demand their “freedom”

have it exactly backward. The vac-

cines can free us from this plague, if

we will let them. The unchecked virus

offers only tyranny.

EUGENE ROBINSON

The threat

remains, stop

protesting

vaccines

BY SUSANNA SCHROBSDORFF

L

ast summer, my 20-year-old

daughter was looking for new

pants when the salesclerk de-

scribed one pair as “very slim-

ming.” My kid turned and asked with a

raised eyebrow, “Why would I want

that?”

Why, indeed? She was right to call

out our assumption that slimmer is

always better. As a woman raised on

self-deprecation and Jane Fonda

workout videos, I know I’ve got work

to do on this front.

Still, I understand why gushing

over someone else’s weight loss is so

fraught. I wasn’t surprised when

Oprah Winfrey asked Adele last week

how she was coping with the intense,

emotional debate over her new body.

The British singer has lost nearly

100 pounds and people are arguing

over how to talk about it — and even

whether to talk about it.

After being the most revered plus-

size role model on the planet (other

than Oprah herself), Adele now finds

herself on the flip side of the body

positivity movement. “I feel bad that,

you know, it’s made anyone feel horri-

ble about themselves,” she told Oprah,

adding almost apologetically that she

had not intended to lose weight, and

had just wanted to get stronger after

her divorce.

In a cover story for the November

issue of Vogue, Adele said she under-

stood why some fans were hurt; “visu-

ally,” as she put it, “I represented a lot

of women.” Commenters pointed out

that praise for thin Adele can seem

like a rejection of heavier Adele and

those who resemble her. But Adele

also pushed back on the “brutal con-

versations” being had by other women

about her body, noting that she was

being objectified by all sides.

These exchanges reveal a chasm

between our empowerment talk and

the real-world expectations women

face. Lots of us are stuck in the middle,

talking woke, but knowing that con-

ventional beauty ideals still have a

hold on us. It’s like a cultural bardo —

between a Kardashian present and a

brave Frances McDormand future.

Even Beyoncé, an icon of confi-

dence, has to navigate the tension

between how we want to see ourselves

and how the world treats us. She

wrote “Bootylicious” to reject com-

ments about her weight when she was

19. And later, in her documentary
    “Homecoming,” filmed after she had
    twins, Beyoncé gets on a scale and the
    camera zooms in on the number be-
    tween her feet: 175. “This is every
    woman’s nightmare,” she says.
    There are millions — no billions —
    of #BodyPositivity posts, TikTok vid-
    eos, ads, and articles in which we
    reassure ourselves that every woman
    is beautiful and sexy at every size and
    age. But here’s the catch: Even when
    we’re posting photos of our belly rolls
    to say we embrace them, the subject is
    still our bodies. And even as we fight
    to expand beauty standards, we are
    still connecting female appearance to
    female value.
    It’s so much easier to embrace body
    positivity for others than for our-
    selves. Someone posts about self-es-
    teem struggles and we respond with
    hearts and cries of “you’re beautiful
    just the way you are!” Meanwhile,
    we’re looking in the mirror fretting
    over back fat.
    All this positivity hasn’t put a dent

in the market for beauty treatments.

We still download diet apps in droves;

cosmetic procedures remained popu-

lar during the coronavirus pandemic

when we weren’t even going to the

dentist.

And despite progress with more

diverse models and clothing options,

those who’ve grown up in the body

positivity age are not necessarily more

liberated from insecurity than their

mothers. The selfie generation has

surely spent more time contemplating

their own image than any other. Eat-

ing disorders are on the rise among

Gen Z. And Meta research revealed

that Instagram exacerbates teen girls’

negative feelings about their bodies.

Social platforms are made to encour-

age comparisons and connect looks to

likes, which is toxic for self-esteem.

I’ve walked this confounding tight-

rope long before there was language

for it. I thought by now, I’d have

stopped caring about my size or my

grays, but I still do, which is embar-

rassing. I’ve gained and lost the same

30 pounds at least three times since I

was 16. The weight comes and goes

like ballast for stressful events such as

a divorce or the death of a parent, or a

new job.

I should probably say here that I’m

the same inside at any size. But when I

look at whichever set of clothes is too

big or too small at the moment, it

seems like they belong to another me.

I try to keep my laments to myself

these days, so as not to spread the

virus of self-consciousness, and to

avoid getting dinged by my kids, who

will surely keep showing me the way.

Susanna Schrobsdorff writes the “It’s Not

Just You” newsletter at Substack.com.

Adele’s transformation poses

challenges for some women

CLIFF LIPSON/CBS

British singer Adele sings during her television special, “Adele One Night Only,” on Nov. 14.

BY PETER KEISLER,

STUART GERSON AND ALAN RAUL

A

fter the country voted in 2020 to

elect his opponent, President

Donald Trump attempted to over-

turn America’s centuries-long

commitment to the constitutional trans-

fer of power. Assisting him was White

House chief of staff Mark Meadows, who

was acting not in service of the duties of

the president, but merely as a political

operative for a defeated candidate unlaw-

fully grasping for power.

Now, the House Jan. 6 committee is

charged with investigating the ensuing

attack that imperiled both our constitu-

tional government and the lives of our

legislators and others who served at the

Capitol. It is no wonder that the committee

has ordered Meadows to testify and supply

documents — or that President Biden has

declined to block Congress’s access by

asserting executive privilege, the doctrine

that allows a president to protect the confi-

dentiality of certain official deliberations.

Rather than comply, Meadows and his

lawyer have launched a public campaign

arguing that Biden abandoned a long-

held principle of executive privilege by

declining to accede to Trump’s attempt to

assert it. Meadows, they say, is stuck in the

middle of a “separation of powers” dis-

pute, unsure whether to obey Trump or a

congressional subpoena with which the

sitting president has agreed to comply.

But Meadows and his counsel get just

about everything wrong regarding the law

and history they invoke. Legal precedent

and settled constitutional principles mili-

tate strongly against acceding to claims of

executive privilege by a former president

seeking to cover up conduct that was both

purely political and antithetical to the

constitutional duties of his office.

First, executive privilege is an out-

growth of executive power that, as the

Supreme Court reminds us, rests in “the

President alone.” To be sure, the Supreme

Court has recognized that a former presi-

dent can argue that materials pertaining

to his administration should be privi-

leged, but given that he is a private citizen,

unaccountable to the people and possess-

ing no official authority, his views hold

limited weight against the incumbent

president. Indeed, the Supreme Court has

recognized that it is the sitting president,

as the people’s most recently elected rep-

resentative and current custodian of the

office’s interests, who is best positioned to

determine whether to assert the privilege.

Second, executive privilege exists to

protect the president’s ability to execute

duties effectively for “the benefit of the

republic.”; it therefore has limited scope.

For example, it does not shield wrongdo-

ing, and also does not extend to a presi-

dent’s political interests (any more than

it would extend to personal business

interests).

Moreover, contrary to Meadows’s asser-

tion, executive branch officials have long

testified on critical issues. President Rich-

ard M. Nixon authorized his aides to speak

on Watergate, and President Ronald Rea-

gan allowed unrestricted testimony dur-

ing the Iran-contra investigation. Senior

officials from the Bill Clinton and George

W. Bush administrations testified before

the 9/11 commission; Bush himself sat for

over three hours of questioning. And

when information was subpoenaed by the

House committee on Benghazi, President

Barack Obama ultimately allowed Con-

gress to receive evidence it sought. Mead-

ows’s counsel is simply wrong when he

argues that Biden’s decision not to assert

privilege is novel.

Meadows himself knows this. When he

served in the House, Meadows had no

problem issuing subpoenas and demand-

ing that subpoenaed executive branch

officials “come before Congress... under

oath, and tell the truth.”

But this is what is most relevant:

Executive privilege may not be invoked to

hide a president’s personal wrongdoing.

In the wake of the election, Meadows

appears to have served Trump’s interests

exclusively. Whatever the residual scope

of a former president’s power to assert

executive privilege over the objection of

the incumbent president, it could not

protect Meadows here. Meadows’s ac-

tions to aid and abet a failed candidate’s

unlawful attempt to subvert the results of

an election were not taken pursuant to

any official duty, and thus may not be

protected by invoking a privilege de-

signed solely for official actions.

Third, there is no separation of powers

dispute; both the elected executive branch

and Congress have said Meadows should

comply with the committee’s demands for

information. It is only Meadows — and

Trump, trying to assert armchair privilege

from Mar-a-Lago — who disagree.

Finally, Meadows’s counsel’s invocation

of a supposed “long-standing recognition

that senior presidential aides, present and

past, cannot be compelled to appear be-

fore Congress” also falls flat. That is be-

cause the United States judiciary has

squarely rejected such categorical immu-

nity. Even if some such immunity did exist,

it would exist at the discretion of the

president — the sitting president. Here,

any claim Meadows has to the executive

branch’s supposed prerogative of absolute

testimonial privilege is eviscerated not

only because Biden has permitted Mead-

ows to testify, but also because Meadows

was acting on behalf of Trump’s personal

interests.

Congress is entitled to obtain the sub-

poenaed information in support of valid

legislative purposes, such as clarifying the

Electoral Count Act and better protecting

its own members. And Biden, consistent

with actions taken by his predecessors

under comparable circumstances, has

found no reason to shield it. Meadows and

his counsel are free to criticize these deci-

sions. But what Meadows cannot do is

invoke a presidential privilege intended to

benefit the republic to protect his own

interests in defiance of the rule of law.

Peter Keisler served as assistant attorney

general and acting attorney general during the

George W. Bush administration. Stuart Gerson

served as assistant attorney general during the

George H.W. Bush administration and acting

attorney general during the Clinton

administration. Alan Raul served as a ssociate

counsel to President Ronald Reagan,

representing the White House during the Iran-

contra investigations.

Meadows is wrong on executive privilege