“I sometimes feel that I’m Alice in Wonderland,” said Margaret Marshall, M.Ed. ’69, former chief justice of the Massachusetts Supreme Judicial Court, during an online panel discussion late last week about the progress—and retreat—of American gender and racial equality. Born in South Africa, Marshall became an anti-apartheid student activist in the 1960s before emigrating to the United States to escape political persecution. “And yet here I am again, in the United States, this country which has given me every possible opportunity,” she said, “and I am listening to people talk about how we should restrict the vote to people who are educated”—an argument with jarring echoes, she said, to apartheid-era white South Africans she remembered from her youth. “I think that we are not a democracy unless everybody can vote easily, readily, without barriers, without targets, without qualifications, without showing endless identifications,” Marshall continued. “I think it is the single greatest challenge to our democracy at the present time.”
Marshall, a former Harvard general counsel, was joined in the online discussion by Conant University Professor and political theorist Danielle Allen, as well as endowment and investment manager Jane Mendillo, who served as CEO of the Harvard Management Company from 2008 to 2014 and was the first woman to manage the University’s endowment. The event was hosted by Concord Museum, to coincide with its special exhibition, Every Path Laid Open: Women of Concord and the Quest for Equality.
Kicking off the conversation, the museum’s executive director, Tom Putnam, asked a question that the three speakers would spend the next hour answering, in one aspect or another. He wanted to resolve what he called the “cognitive dissonance” of, on the one hand, undeniable social progress for marginalized communities, and, on the other, rising levels of inequality, which heavily affect those same communities. “So,” Putnam asked, “where are we making progress? And where do you see signs of retreat?”
The long push for women’s equality, Allen said, “has been more or less a steady forward movement. We can talk about real progress.” More recently, there’s real progress and forward movement, too, in the campaign for LGBTQ rights. But for African American equality, she said, the story is different. “It has really been a matter of moments of expansion followed by contraction”: Reconstruction’s racial emancipation after the Civil War leading into the Jim Crow era, the civil-rights era of the 1960s followed by racial backlash and a system of mass incarceration with “racial animus” built into its structures.
“Over the last 50 years, there have been these two dynamics,” she explained. “One, of this increase in income inequality and wealth inequality that has affected the whole country. And then the other, this rise of mass incarceration. And the two things really sort of work together to trap people in the lower registers of our income spectrums….And insofar as African Americans were already there at the bottom, trying to start working their way up, the trap was particularly dire.” She continued: “That's really where we find ourselves now, as we're trying to unlock something that's like a sort of steel trap that really has been built in the last 50 years. And I think it's a whole-of-society effort to unlock that trap.”
Regarding equality in gender and sexuality, Mendillo spoke of the growing (but still small) number of women serving on corporate boards or as CEOs. Progress there, she said, “comes in fits and starts.” Mendillo described the tricky transition from higher education to corporate careers for women and for racial minorities—people from underrepresented groups can often “come out of college strong” but still don’t get the same opportunities as their white and male counterparts.
And Marshall, who wrote the 2003 decision legalizing same-sex marriage in Massachusetts—which made the Commonwealth the first state in the nation to grant gay and lesbian couples that right—spoke of the remarkable recent success of the gay-rights movement. But she also cautioned: “When people used to ask me, wasn’t I surprised at how fast the revolution had taken place? I like to remind people that it was more than 50 years ago that the first gay couple went to a court for the first time to ask that their marriage be recognized.” That case, Baker v. Nelson, was appealed all the way to the U.S. Supreme Court, which in 1972 declined to hear the case in a one-sentence order. “With barely a slap of the hand, it was dismissed as wholly meaningless, ridiculous,” Marshall said. “So it depends on where you’re sitting in history.”
A few moments later, Mendillo chimed in. “As the parent of a gay child,” she said, “I have been inspired and moved by Chief Justice Marshall.” She noted that Massachusetts was only the sixth jurisdiction in the world to allow same-sex marriage. “So the [state] constitution may have been written that way a long time ago, but it was interpreted very progressively under your Supreme Court.”
Again and again, though, the conversation kept turning back to race, with its seemingly (or at least so far) intractable issues of inequality. At one point, Putnam asked Allen, who earlier this year declared herself a candidate for Massachusetts governor, about the widening imbalance of power in the electoral college. At what point do constitutional protections for voters in the political minority endanger the rights of racial minorities living throughout the country?
Explaining that constitutional democracy is about “empowerment,” Allen answered that both kinds of protections—for political minorities and for racial minorities—are important. The problem with the electoral college, she said, is that over time it has been altered in ways that warp its operation. . “Now, it's weighted too far in the direction of protecting less populous places,” she said. One major problem: the 1929 law that capped the size of the House of Representatives at 435. Until then, the legislature’s size changed with every census. “Congress was supposed to keep going growing with the size of the population. And if that had happened, then the relative weighting between more populous and less populous places in the electoral college would have shifted over time as well.” (As for the filibuster, the Senate rule that requires 60 votes, rather than a simple majority, to move from debate on a bill to a vote on its passage, Allen said, “I don’t give that any constitutional credit at all.…Get rid of it, I say.”)
Toward the end of the discussion, Allen talked about author Ralph Ellison, who wrote Invisible Man as well as a 1970 essay that is a favorite of Allen’s, titled “What America Would Be Like Without Blacks.” Ellison, she said, “really taught me in a deep way how to knit our stories together”—how American history includes the stories of black people and other racial minorities, of those with every sexuality and gender identity, of women. “I think we really need that knitting,” she said. “Honestly—just in order to understand who we are as a society.”
