Episode 7: BONUS: The FAMILY VALUES CONSTITUTION with pEGGY cOOPER dAVIS (Copy)
Peggy Cooper Davis joined the NYU Law faculty in September 1983 after having served for three years as a judge of the Family Court of the State of New York and having engaged in the practice and administration of law during the preceding 10 years. Her 1997 book, Neglected Stories: The Constitution and Family Values, illuminated the importance of antislavery and civil rights traditions as guides to the scope and meaning of Fourteenth Amendment liberty interests.
Douglass Collective is a community of lawyers and activists working to promote a more inclusive vision of the Constitution. We believe that the abolition of slavery and the Reconstruction Amendments provide a powerful blueprint for a world where we are all more free. By raising awareness of the Constitution’s abolitionist roots, and building community and power around that vision, we will chart a more free and equal future.
Transcript
Taonga Leslie (00:00)
welcome to Reconstructed, a podcast where we talk about the Constitution, how it shapes our lives, and how we can reclaim it as a force for good. I'm your host, Taonga Lesley and today we'll be talking about the family's values constitution and the anti-slavery constitution with our guest, Peggy Cooper Davis. She has a more than 50-year career as both a practitioner and academic.
She's published two books, more than 50 articles and book chapters in the most notable law journals, including at Harvard, Yale, NYU, and beyond. And she previously to becoming an academic served for three years as a judge on the family court of the state of New York. She currently teaches at NYU. Thank you for joining us on our podcast, Professor Davis.
Peggy Cooper Davis (00:45)
My pleasure.
Taonga Leslie (00:45)
We're very excited to have you. There's so much we could dive into of your diverse scholarship. but one thread that I wanted to start with, which has been a recurring theme, title of your seminal 1997 book, Neglected Stories, The Family Values Constitution, but also talked about neglected stories and civic space. I'd love to just know a little bit about what drew you to the idea of neglected stories and what's
Kept that interesting for you.
Peggy Cooper Davis (01:16)
I once taught a course with Bob Moses, the well-known, I hope to most people, civil rights activist of the sixties. And he used to say to our students in the beginning of the course, what story do you have in your head of the constitution?
Or what story do you have in your head of the United States? And that was for him a starting point to try to understand how our students conceptualized the place of the Constitution, the origins of the Constitution, the meaning of the Constitution in their lives.
I guess the best way to respond to your inquiry is to put myself in the place of a student in one of those seminars and say that
I see the
Country as a country that was
Founded
As a result of the lives and efforts of a multitude of people.
But I found, not only with my students, when we asked what kind of story they had in their head about the Constitution or about the government, that certain stories were neglected. And the stories that were neglected were often stories that were central to the lives of people of color in this country.
I think it's that recognition that led me to the title Neglected Stories, although central theme of it came from a different place.
Taonga Leslie (02:58)
you also talk about your own experiences in law school. and I'm curious what story of the law did you have coming in to
law school if you if you can remember some of your impressions.
and how did that story of the law shift over time?
Peggy Cooper Davis (03:14)
I went to law school wanting to be a civil rights lawyer.
What was on my mind and what I expected was to learn how to be an advocate in behalf of civil rights.
What I encountered in law school to some extent served that purpose. Of course it was broader.
And I have to say it was more neglectful than I would have preferred of material that would support me in becoming a civil rights lawyer.
Taonga Leslie (03:41)
And yet you did come out of law school, you went into civil rights work, you became a judge for a while, and then you became an academic. what made you want to come back and study the law in this different way and develop these questions in a different way.
Peggy Cooper Davis (03:58)
in my early practice,
I was doing direct representation of clients
But as years went on, I was doing more and more appellate work and more and more work that involved advising people at the trial level. more and more work actually that involves theorizing about.
what the law was meant to do and how you could make it do what it was meant to do or what you thought it was meant to do.
Taonga Leslie (04:29)
So you you began moving up to this maybe higher level of abstraction.
Peggy Cooper Davis (04:34)
To some extent, I guess,
You said that I was a judge. I was a judge in the family court, the city of New York, and that's a grueling place.
place where terrible things happen to people.
you're responsible for making decisions can have terrible implications for people's lives.
sometimes young people who were charged with delinquency, but oftentimes families that were brought to the court in neglect and abuse proceedings.
I guess I gathered something of a reputation as a rebel in that court because I was
more inclined to do things that were protective of families as opposed to what my equally well-intentioned colleagues would have thought was more protective of children.
That became an uncomfortable environment for me, but more and more I realized that if I could write and theorize about that, I might be able to have more influence than sitting in court before these individual cases every day. I felt some guilt about leaving because
I felt that I could be a protector of families while I was there that I could overcome some of the biases that were very present in the system that led to premature and unnecessary breakups of families.
Taonga Leslie (05:59)
this would be good to to take us to your book, because it's neglected stories and you're also talking about family values.
The book has this kind of, think provocative then still provocative now take that there are family values embedded in the Constitution, but maybe they're not the family values that we often think or that the dominant media narrative is. And you
seem to arrive at these family values by going back to slavery and the anti-slavery movement. it's really stunning and provocative and even now. And
what first of all made you want to go back to slavery, to delve into that period, what made you think that there was something there? And what did you learn going going back to that period that you felt was relevant to to bring back to the present?
Peggy Cooper Davis (06:51)
Well, first I want to say something about why I use the term family values. my mind at that time, and I suppose still, it was a kind of right wing notion.
a phrase that was used to describe and prioritize very conservative ideas of how a family should function and what a family should be.
What I wanted to do, both as a judge in the family court and as a scholar
was to make room for different stories of what a family should be and what place in society a family should have.
So
I used the term family values in my title a bit tongue-in-cheek because I was pointing to but not wanting to endorse what I saw as conservative movements' notions of family values, which I thought were more values that people intended to impose on families than values that people.
we're willing to recognize in families.
Taonga Leslie (07:59)
From my perspective, often progressives think about individuals and maybe it's not as much in our discourse to talk about families. It seemed like you were also saying there is something about families that maybe is beyond or supplements individuals that we're being blind to.
Peggy Cooper Davis (08:20)
It's it's an important choice that a society makes.
about whether children should be principally nurtured in institutions, schools.
Communities that are established for the nurturing of children and a world in which
Children are nurtured by
Their immediate or often biological families. Now, the second world allows for a great deal more diversity. And that's one of the reasons for the tension between what the system thinks child rearing should look like and what individual families sometimes think it should look like.
And I have wanted to promote the idea that that openness to difference was a good thing and a thing that was intended to be built into our system of government, where the child was not a creature of the state.
primarily, but primarily a creature of its family and culture
Taonga Leslie (09:19)
so we haven't quite touched on how does slavery get into all of Why does slavery loom large and what lessons do we have to learn from slavery?
Peggy Cooper Davis (09:30)
slavery
is for me the neglected origin story of the constitution as it was reconstructed after the civil war.
the Reconstruction Amendments were intended to protect for everyone, not just for former slaves, and not just for people who might have been slaves, but for everyone.
Basic rights that slavery
Denied.
So the amendments made all these people who had been slaves, who had been enslaved, citizens. And the change in status from an enslaved person to a citizen.
is remarkable and significant. And there was an effort made at the time of reconstruction.
that hadn't been made at the founding of the country.
to put some flesh on this notion of what a citizen is and what rights and responsibilities citizen has.
the constitution had been reconstructed to
the smaller unit of the family to be principally responsible for.
the nurturing of children and hence for the way the culture evolved. And it would evolve in different and more open ways if the family was in control than if the state was in control.
Taonga Leslie (11:07)
just say a little bit more about why that is?
I I guess more about how slavery was not allowing for the family to be in control.
Peggy Cooper Davis (11:15)
Well you couldn't have s family in slavery. You had no legal family relations.
So although there were people who
had the relations of parent and child, etc.
That relationship was superseded by the master-slave relationship.
there wasn't
The opportunity I'm extolling to nurture values and
Shape the development of character in a small unit of the family. But everyone, children and adults, was under the control of an owner initially, and ultimately of a government that enforced the will of the owner. And that's a very different world than a world in which children are.
primarily the children of a family.
And the state needs good reason.
To interfere with that relationship or to disturb it. And that's what you see very clearly in family court, because in neglect and abuse cases, most pointedly, but also in other cases, the whole issue is about whether a young person will be left.
in the control and custody of its family or removed to be controlled and nurtured under state supervision.
And you're wondering why I prefer one to the other?
Taonga Leslie (12:38)
You know, I I am, yeah, actually,
the only thing I remember of family law is the best interest of the child standard, right? That was they said if you remember anything on the bar, do that, and I guess I remembered enough. and yet you seem to think that's not quite right, at least in from what you've experienced in family court.
Peggy Cooper Davis (12:55)
Well, I would put it differently. I would say I'm trying to question who should determine what's in the best interest of the child.
in family court you've had a disruption. some kind of trauma in the family, such that the state gets to decide what's in the child's best interest and to reshape the child's custody and living pattern in a way that it thinks best.
that should be an unusual and abnormal situation.
In my opinion.
the normal situation should be that diverse families nurture their children in diverse ways. And as a result, the population is not
So
intellectually and culturally uniform, but more diverse.
Taonga Leslie (13:48)
the Supreme Court has recognized some level of of variation and limitation on how much the government can go into families. There's been cases about the right to homeschool, whether you can have children be forced to say the Pledge of Allegiance.
but you've written that rooting things in the anti slavery experience actually may be more robust or get us to a different position than than the tack that courts have taken so far.
Peggy Cooper Davis (14:16)
Yeah, what I'm saying is that
The child is not the creature of the state.
An enslaved child was
was the property of and under the control of the master, not its parents.
when you ended slavery then you dismantled that system.
And I see a huge difference.
between the thought that a state could nurture and indoctrinate
The coming generations and a system in which families did that individually and differently.
Taonga Leslie (14:54)
in the time that you were writing this book, you were also extending it to LGBT families and partnerships in ways that came far before the
court actually extended recognition there. you also were thinking about the right to abortion in in very different ways than what the court has done.
what made you think about that expansion? how do those connect to this concept of family rights?
Peggy Cooper Davis (15:23)
It didn't so much feel like an expansion to me. it felt like following through on the principle that the state didn't control
and didn't make rigid rules about how a family should be and how a child should be nurtured and educated.
if in the United States children all went to something like a kibbutz and were nurtured there.
I don't know whether they would be supported.
if they were LGBT students, children.
They might be, but they might very well not be, right?
it's akin to the idea that you don't have a state religion.
That these kind of self-defining things are things that individuals come to. it's in the nature of things because human beings are dependent for a certain period in their lives,
that they come to those things in
My preference is that they come to those things in family units rather than in institutional units.
Taonga Leslie (16:29)
I think everybody has someone that they consider their family and that you feel a lot more trust in having the power there than than it be with the state.
the debate that comes to mind now is probably over transgender children and their access to health care, where essentially many states are and the federal government as well are just trying to ban what care parents will be able to give their children in until they come of age, right? There's this idea that well
The state has decided this is for the best, and so until you're eighteen, you don't have that choice.
Peggy Cooper Davis (17:03)
And I mean, you've said it all. It I I think that's wrong.
Taonga Leslie (17:09)
I wanna tease out a little bit more though your theory of how we should read Constitution because you are drawing from these principles from anti slavery, but you've also said it's not quite originalism.
that
we're not just going back to find out what was said or or meant at the time. Can you can you explain more about that and how you think we should be drawing on history?
Peggy Cooper Davis (17:33)
well first of all it it seems to me significant that you
Focus on reconstruction as opposed to the original founding as the moment when these things got defined.
and I think that's accurate. And I think one of the reasons they couldn't be defined at the original founding was it's too embarrassing to say everybody can have a right to family autonomy except black people. You know that wasn't gonna apply explicitly, although implicitly that's what was going on.
I'm I'm trying to think of a good example.
to help us through the distinction between a traditional originalist view and the view that I'm taking.
Taonga Leslie (18:19)
I think that they probably would balk at the idea that this has anything to do with with trans rights for one.
Peggy Cooper Davis (18:26)
Right, because
It was anathema to the founders, at least those who talked out loud about it, right?
And I'm going all the way back to the founding, but I think what you're pushing me on is it probably wasn't something that people in the Reconstruction era were really keen on either, right?
So the question, if I have to decide about a family's autonomy to address issues that have to do with a child's sexual identification and sexuality,
I'm not suggesting that you go back to
some period within six months of the end of the civil war and see how everybody felt about it. Right. I was suggesting that
You
Recognize a principle of autonomy that's kind of the opposite of slavery. So it's not just the Fourteenth Amendment that's working here, the Thirteenth Amendment is also working here, as is the 15th.
Together they're building a principle of individual autonomy.
that pulls against the idea of everybody has to do what we were doing in eighteen seventy six or whatever.
Taonga Leslie (19:51)
you've kind of raised this idea that to understand freedom, you have to understand slavery.
Peggy Cooper Davis (19:59)
Or certainly understanding slavery helps you to define freedom and understand it.
Taonga Leslie (20:06)
I'm curious about like research process itself, going deep into archives, finding out about what people were saying from the lawmakers, but also formerly enslaved folks. what was that like? And what value do you find in in going to the historical sources?
Peggy Cooper Davis (20:25)
It's very interesting because I was kind of surprised by the amount of support I got from my positions in the congressional debates around the amendments. and you know you'll see that if you crack my book. I always quoting
People in Congress
sort of spouting about their definitions of freedom and their definitions of freedom, given what's been going on in the country at the time, have to do with the opposite of slavery.
And so they're saying your child is your own, right? Not the states.
So that wasn't difficult, and it wasn't difficult to find in the culture, at least in the anti-slavery literature and among anti-slavery advocates, comparable positions about imperative, really, that individuals have a certain amount of autonomy and not be.
under the control of owners.
Taonga Leslie (21:28)
in the many years since this book came out, you've continued to build on the scholarship. You've also talked about pushing back on the Confederate narrative that you still see often in legal academia.
Peggy Cooper Davis (21:40)
And from the Supreme Court.
Taonga Leslie (21:41)
Can you talk a little bit about that? About how these stories become or stay so neglected and lost?
Peggy Cooper Davis (21:47)
Well of course there was pushback, right?
The redeemers who wanted to redeem the South, right?
wanted to push back and minimize.
The change that
anti slavery people thought the constitution had wrought.
Taonga Leslie (22:04)
so you've talked about the efforts to bury the anti-slavery narrative of the constitution.
Can you say a little bit more about that over time? Cause I think maybe it feels more to some probably more subtle. It's not we don't have the straight up Confederacy anymore, but how do you see that still shaping how we talk about things today?
Peggy Cooper Davis (22:26)
I see it all the time in constitutional jurisprudence.
You see people.
talking about the original meaning of the Constitution.
that has to do with the rejection of reconstruction.
You see people talking about redemption and they're talking about redeeming the reputations of the rebels.
And redeeming the authority.
that the rebels wanted to have.
over how people's lives could and couldn't go.
And I think you you can look at almost any
Supreme Court decision that deals with
basic rights and liberties.
And justices pulling on one side.
For
an open definition of rights and liberties and pulling on another side for a regressive one, one that goes back to what those people would say was the original understanding.
And you know, that just hasn't gone away in you see the Confederate narrative, you see the my god, those people were
all caught up in the energy and excitement of the war and they just went crazy. Right. and so we have to rein this in because it was too extreme. and we have to interpret what they did conservatively.
Because it was about
And out of control.
feeling that arose out of victory in the
And you see on the other side, no, that's not what it was about. It was about
the enforcement of some principles that had been neglected during slavery. and I I don't know. I
I think that's still very present in Supreme Court jurisprudence.
Taonga Leslie (24:32)
certainly I think l interest in legal history to prove constitutional points is a lot more present on the conservative side. And I think a lot of progressives simply don't see the value in history as much as other methods to
get to the ends they want to see or to expand rights. Roe versus Wade, the LGBT rights decisions really don't refer back to history to get where they wanted to go.
consistently throughout your career, you've been saying we need to talk about history. I'm kind of curious, yeah, why it's important to you and what you think the value is of anchoring there these movements.
Peggy Cooper Davis (25:15)
for me it's kind of simple. It's the difference between
Arguing that we should think as people thought in the past, issue by issue.
And arguing that a whole idea of what it meant to be a free citizen.
got unsettled after the Civil War.
What we need to do now is resettle it and see what's left. And a lot of what's left has to do with opposition to enslavement. It has to do with opposition to the effects of enslavement. It has to do with the idea of every person in the country being a free and autonomous person.
and nobody in the country being a slave. And that's history.
So yeah, history can tell a variety of stories.
Taonga Leslie (26:04)
there is a narrative now that well everybody's free now, right? Nobody is a slave, I suspect that you don't believe that's completely true or or not true in an uncomplicated way. So
I guess what's the remaining work that we have now on this journey that you see?
Peggy Cooper Davis (26:21)
if
you go back to the beginning of our conversation.
If I'm recalling correctly, we were talking about the extent to which
Families should be autonomous, and the extent to which they could be controlled by.
Outsiders.
Backed up by the state.
And it seems to me that's the question that persists.
So issue by issue you wanna say.
Is this something that should be decided and can usefully and safely and productively be decided in multiple sites? Or is it something that ought to be decided uniformly from the top down?
It seems to me that that's
Following the path of
Anti slavery and reconstruction.
Taonga Leslie (27:11)
As sort of practical matter, how do you see yourself applying these principles now on a day-to-day basis? and how do you think our listeners can think about this as they you know go through their lives, being that most of them are not Supreme Court justices?
Peggy Cooper Davis (27:27)
The way I think about
Most issues in constitutional law, or at least a great many issues in constitutional law, is through the lens that says this is a reconstructed constitution. And it was reconstructed to certain ends, to
preserve freedom of individuals and families.
And it should be interpreted with that understanding.
Taonga Leslie (27:54)
how does it made you think about your work as an educator?
Peggy Cooper Davis (27:58)
As a teacher,
I can teach what we've been talking about and I can present to students what I believe the history tells us.
And of course, they don't have to buy it, but I like the idea that it gets presented to them, right?
Taonga Leslie (28:16)
What would you like to see next generations continue to take your work forward and build on?
Peggy Cooper Davis (28:22)
Well, I'm very happy for your interest in it and anybody's interest in it.
I would like to see the next generation begin to understand.
That we're living under a reconstructed constitution that was reconstructed.
In response and in opposition to what was going on during slavery.
in order to liberate people from the constraints that were imposed in slavery.
And to see that that was that's not just something somebody made up, but it's explicit in the debates of Congresspeople, in the conversations between anti slavery people and pro slavery people at the time.
And I wish that
those strands of thinking were engaged more regularly they're kind of
on the Confederate side as I call it.
Pronounced and and on the
Reconstruction side too much overlooked.
Taonga Leslie (29:25)
Thank you very much, Professor Davis. This has been lovely.
Peggy Cooper Davis (29:28)
Okay, please be kind to me in the editing.
Taonga Leslie (29:32)
you won't need it. It's been wonderful. Thank you very much.