Showing posts with label civil rights. Show all posts
Showing posts with label civil rights. Show all posts

Sunday, May 10, 2015

The policing thing


I finally want to tackle the difficult subject of present race relations in America, particularly the present debate about policing.  It’s a hard thing to write about, like abortion, because it raises such strong feelings and I do feel a little uncomfortable, not least because many people, including myself, have strong emotional feelings about it, rational or not, and it can be ugly to debate. There is even controversy about what words to use. I am using "black" and "white" to describe groups because I do not like African-American for the usual reasons and no one has ever suggested a word to me that isn’t immediately interpreted in our brains to mean black and white, whatever we may say. Who pictures Charlize Theron when we say African-American or Ayaan Hirsi Ali when we say European-American? In fact, I wonder if even Charlize and Ayaan do?

At the outset, few people could deny with a straight face that blacks in America suffered through slavery, bigotry, discrimination and other unconscionable horrors and disadvantages in the last 400 years or so.  Fewer would argue, but I still think a large majority, that if all prejudice ended today, that the effect of these four hundred years would leave blacks, in general, with a disadvantage in material wealth and connections that lead to opportunity and capital. Again, fewer, but I would still believe a majority agree that the history and stigma attached to that history has a psychological impact too, even on present day blacks who never suffered these crimes and indignities. All groups suffer discrimination at some time or another, but whether others agree or not, I cannot think of another ethnic group other than American Indians who have suffered as much over the course of centuries from discrimination and prejudice in this country.  

But, also, that was then, and this is now.  The years of slavery, oppression, Jim Crow and the like, are over.   Not that prejudice doesn’t exist and can’t be a problem with specific people, groups or institutions.  Of course we still have it.  And probably always will.  But prejudice is no group’s sole burden. There is plenty to go around. A recent Pew Group study found that there are more blacks prejudiced against whites than vice versa.  Some might say that this is only to be expected.  I have learned over time that if someone says that there is still prejudice, but not as much as there used to be, some people hear them say that there is none.  We can’t help what people hear. 
And, of course, most everything I write here is based upon generalities, as people - black, white or otherwise, have many different opinions, not necessarily consistent with those in whatever group with which they identify and I’m not implying any destiny or inherent qualities. But, the question with generalizations is rarely if you should ever make them at all (it is almost impossible to speak about many subjects without generalizing some and people are always more tolerant of their own generalizations) but what is too much and too little of a generalization? I do not know what percentage of blacks of whites believe most things, but we can say with a lot of confidence that more blacks believe OJ was innocent and believe that Michael Brown raised his hands over his head and said “don’t shoot,” than whites do and vice versa.  However, many whites, and they would tend to be more liberal than conservative in most instances (some exceptions), seem to agree with many of the arguments raised by the “black community.” 

The media, which is obviously quite influential, has weighed in heavily on the side of those who want police reform and argue that blacks are being wantonly killed by police on a regular basis. Just as one example, I read an article recently where the headline or sub-head was something like – Our argument is simple – Stop killing us.  I’ve read several op-ed’s or editorials in the NY Times even excusing violent protest and looting by blacks.  After reading sympathetically one article written by a successful author about a painful tale of a sad childhood in Baltimore because of discrimination and police abuse, I was stunned at the conclusion (and amazed the NY Times would publish it), which was a collective threat to burn Baltimore to the ground if the six officers involved in Freddie Gray’s death were not prosecuted. At first I thought I misunderstood him and read it several times. But he wrote in that paragraph that peaceful protest and singing kumbaya  doesn’t work and that the city would burn the city to the ground if they were not given what they wanted.  Fortunately, the large part of Baltimore does not agree with him – whether black or white.  I’ll come back to Baltimore later. 
Personally, I have always been more than sympathetic to the sufferings and labors of blacks throughout our history, and have admired numerous civil rights figures from the Quakers to Martin Luther King, Jr. and many who marched with him, as heroic, regardless of skin color. And even now, there are some issues between civil rights leaders on one side and government and the police on the other side, with which I agree with the former.  For one, after reading the decisions on the stop and frisk program in NYC, I had to agree that it needed to be seriously reformed, at best.  And I agree that the war on drugs has been a complete failure (as has the war on poverty) and the penalties for it fall disproportionately on minorities.  And, though I insist on waiting until I can have a fair amount of certainty as to what happened, I absolutely see some of the more highly publicized tragedies – such as with Eric Garner – as strong indication that we need constant police reform.  I would also, had I the power, fire any government employee who intentionally wrote racial slurs, as recently happened in San Francisco. And although I made ethnic jokes when young (and in my mind, the joke was always on the cracker, or the outrageousness of saying something so shocking) I would deserve to be fired too for stupidity if I did it as a government employee.  I have often stated my belief before that though I think parts of the 1964 Civil Rights Act were unconstitutional, we are a far better country because of it. Not just minorities – everyone.

But, I also believe that the absurd exaggerations surrounding a number of well publicized cases and official reactions to them in the past few years have, for the first time in many years, damaged race relations, which had steadily improved since my childhood (born the middle of ’59) and also damaged the trust of many people in government. These cases include Martin-Zimmerman, the “Duke Rape case,” the UVA race case and Brown-Wilson (i.e., Ferguson, Missouri).   In each of those cases, many in the public and in the media created false fact patterns and held to them against every bit of reason to the contrary as long as they could. In fact, protesters holding their hands in the air and saying "don’t shoot" in imitation of what appears to be a completely manufactured fact pattern from Ferguson damages race relations and decreases or eliminates sympathy for many people who are otherwise sympathetic to the “cause” or feel grave injustices have been done in some of the cases, such as with Eric Garner and, possibly Freddie Gray.
The actions of some political figures also must be called into question. Although I think he’s slowly learning the consequences of his statements and has recently tried to sound more evenhanded, President Obama has been very divisive during his two terms as have been his AG for most of that time, Eric Holder, and others, like NYC Mayor De Blasio, and, of course, professional instigators like Al Sharpton.  You can’t completely blame these people for the deaths of two officers in NY who were assassinated by a deranged man inspired by the inflamed rhetoric.  Maybe instead of the officers he would have killed his girlfriend, who he had already assaulted, or some random people. That I can’t say. But, I do believe that statements by those I just named inflamed him and contributed to why he targeted the officers.

There are many articles out there about what these politicians (and I’ll include Sharpton – he ran for president) have said and I won’t recount them all. I’ll just talk about two – Obama and De Blasio. Obama has made several unfortunate mistakes during his terms. When a black Harvard professor trying to enter his own house was questioned by a white police officer (a neighbor had reported him) and then arrested for disorderly conduct, Obama presumed it was an example of discrimination and said the police acted "stupidly." When he was criticized for getting involved in a local issue and taking sides based on skin color and was at least partially, if not completely wrong, he invited both men to the White House for a "beer summit," to quiet the criticism. But, he didn’t really learn yet. When Zimmerman shot Martin, he said publicly that Martin could have been his son – in other words, taking sides and again based on skin color. He certainly didn’t know the facts. The federal government got involved in Florida (and I don’t know if that was because of Obama or Holder or both) and Zimmerman was prosecuted by a special prosecutor on her own say so – no grand jury. We know the result. He was acquitted.  If you watched the trial, you should know why. Almost everyone, including prosecution witnesses, couldn’t help but bolster the defense.  When Michael Brown and Eric Garner were killed by police, the president weighed in again. His speaking style is usually very mild and he does make statements in favor of most police, urges only peaceful protest and the like, but he never comes out and quite says – "you know, folks, a lot of these claims turn out to be false and in this case it appears that Wilson did not murder Brown" or "I was wrong to say what I did about Martin and Zimmerman – I didn’t know the facts." He just weighs in and when wrong, forgets it.   
De Blasio, of course, really caused himself grave damage with the police, essentially his employees him, and with many in the public who disapprove of his racial positions. Some people still justify his remarks made about warning his son, who is bi-racial, but identifies as black, about the police, but if you look online at his statement, see who he surrounded himself with, and listen to the actual words, he was clearly stating that he was fearful a police officer would kill his son because he is black. It was not a surprise to me that police officers protested when two were killed by turning their backs on the mayor when he spoke at the funerals and protested by temporarily slowing down the "broken windows" approach to their jobs. Eventually it played out and allegedly he has patched it up with the police union leader, but I don’t believe it. The majority of NYers believe the police were being childish or petulant in turning their backs on him. I didn’t think so.  It was quiet and dignified and didn’t interfere with his speaking. They truly believed that he was partially at least, responsible for inspiring the type of anger that lit up the killer of two officers. Should they just forget it? The funeral was more for them than him. He was just making a political appearance. I don’t believe he should have even gone.

Both Obama and De Blasio also do something that makes it very hard for others to take them seriously as speaking for everyone when it comes to race relations.  They both appear to be under the sway of Al Sharpton, if you just go by the number of visits by him to them.  Obviously, he is a close adviser.  I’m not going on a long rant about Sharpton. If you believe he’s a good man who does good things for the “black community,” then you do.  I think he has done as much harm to race relations in this country as virtually anyone and I also believe he thinks it is all right if whites are falsely accused or even go to jail undeservedly, because blacks were so mistreated for so long.
It is critical, of course, that our justice system be as limited in discriminating against anyone because of race or ethnicity to the degree humanly possible, while at the same time – and this is the tough part – using such descriptive terms and profiling abilities as are necessary to combat crimes. As examples, there is nothing wrong with describing a person as white or black or Chinese or Irish or Hispanic, etc., in order to help locate them.  Also, where there are cultural ethnic associations conspiring to commit crimes, it is not discrimination to be aware and investigate this fact, whether it is Islamic terror groups or Russians or Pakistanis exploiting the personal injury market by manufacturing claims, using their own doctors to generate false medical reports, and so on.  You might say, what about Anglo-Saxons or Jews,  and I say, if there is some communally favored crime being committed, then, of course recognize those who congregate by their ethnicity if it might help combat it. When we investigate gangs involved in many crimes, isn’t that precisely what we do – and need to do?

Let me move on to Baltimore. A few weeks back, as is all too well known, a young man named Freddie Gray was arrested by police officers after he ran from them. He was put in a van and transported by six officers. At that point it is murky for most of us, but it appears, as best as I can tell, at some point his back was broken.  In addition, it is at least reported that they kept him in the van for an astonishing long period of time, given how short their ride was.  Eventually, some days later, he died of his injuries. That’s a very general description and I am leaving out some facts others might find important either because I don't or because I don’t trust media reports very much.
We all know what happened next - protests, then rioting, much like Ferguson, Missouri not long before.  Buildings looted and set on fire, police vehicles and police themselves assaulted and pelted by rocks. Death threats were made. The mayor told the police – and she can deny it all she wants now – to give the rioters room to destroy – but I heard her say it myself while she was addressing the public, and was surprised by it then, before she walked it back. This has been vehemently criticized by law enforcement and other mayors as a bad idea. And, of course it is.  It goes without saying that this was a small group of people, and likely gangs, involved, while most Baltimoreans were repulsed and protested the violence.

Soon after, not surprisingly, it was reported that six police officers were arrested. Despite all the screams about racism, it turned out that half of those arrested and allegedly involved were black themselves. I haven’t heard as much about racism since.  They were charged, but no grand jury has indicted, or possibly been convened as of yet.  At least, I do not know of one.
Of course, if the officers are guilty of these crimes, they should be indicted, tried, convicted and sentenced. They should not be prosecuted, as was Zimmerman, for political reasons or to pacify the press or citizens.  And that is a possibility too.

There have been some reactions that are quite discouraging to me.  First, I have read the comments in the media from many writers and heard from any number of good-hearted friends, all white, that the rioting was okay, and justified by the desperation of poor blacks in Baltimore. I am astonished by this, though I know it is well intentioned, a product of sympathy for those less fortunate, and possibly exactly how I would have reacted when I was even in my mid-20s. It is also, in my view, spectacularly wrong and dangerous.
The idea that rioting is a good idea is a bad one, whatever the reasons. I do believe in civil disobedience. But, it is when it is based on self-sacrifice and consciousness raising, à la Thoreau, Gandhi and MLK, Jr., that is both admirable and effective (in the right situation).  Looting, destroying and terrorizing, not so good.  The people I feel for during and after the rioting, were the police – and a large percentage of them were black – the employees of CVS and other businesses I saw on television – mostly black or other minority - crying because their livelihood was destroyed, and the people of Baltimore who will have to now live with more blight and possibly even higher taxes to pay for the repair and clean up of all the damage.  I cannot tell you that I believe there is never a time where government acts justifies violent retaliation - it is, for example, when democracy has completely broken down. I don't mind the people in Syria rebelling at all.  I haven’t questioned my friends for the most part, but I could have asked, so it’s okay if a desperate person burns down your house or murders your spouse? Because their belief justifies most violence. And, it is probably not true in many cases. It sure seemed that many of the rioters just wanted to steal stuff. Perhaps the majority. We don't know because it was a riot.
Another thing that has greatly disturbed me about it is the threats that were made by gangs to target the police.  Another is the statement by the attorney general that she heard the “calls” of “no justice, no peace” and responded by her charges.  It sounded like she felt the rioting was justified.  While some people have described some of the protesters as a lynch mob, and others have decried that, this is exactly what it seems like to me. Should the person responsible for law and order in the city be saying that lawlessness and disorder is okay? I don't think so.

Yet another thing that stunned me was the quick call for the federal government to get involved by Baltimore’s mayor herself, especially so quickly after Al Sharpton himself suggested that all the nation’s police should be supervised by the federal government. What mayor wants to so quickly give up sovereignty and ask the federal government to come down on it hard (as former U.S.A.G., Michael Mukasey pointed out – that’s usually what happens) unless she believes that it is out of her control and that such discrimination and abuse exists to justify it. She probably should resign, in that case.  Of course there are other cities and states where the federal government has investigated civil rights abuses by the police. I can think of L.A., Albuquerque, New Orleans, Cincinnati and Cleveland, off hand. And perhaps other cities have requested it themselves before, though I don’t recall any. But, it strikes me in this case that her request was more about ideology than management of the problem. And, Loretta Lynch, the new A.G., has announced a federal investigation. Ironically, of course, they will be investigating a force that is run by a black mayor, a black commissioner and assistant commissioner and is already or nearly made up of a majority of black officers.  The Maryland General Attorney prosecuting the Gray case is black as well.  Some would argue that this doesn't matter because Baltimore’s force has been challenged, and at least once successfully, that there is discrimination in promotions and privileges (such as getting light duty when injured). That may be so, but is hard to comprehend when so many of the leading figures are black. Are they the ones discriminating against minorities? Is the federal government going to determine that a predominantly black run department is violating the rights of blacks? Does this give some clue that this may not be about race at all, but perhaps about income or class?
I do not live in Ferguson, Missouri. I don’t live in Baltimore, though I have visited it a bit and a couple of times driven through its slums (hardly making me an expert).  I don’t know if there are systemic material problems on the police end there or not and I am not going to make a judgment based upon some highly publicized cases and media reports, when, in fact, it is possible, that under the conditions, the police, or most, may do a very good job.  Or not. And, there have been my own interactions with the police, thankfully rare enough, and sometimes I was really disappointed in how defensive or even angry they could be.  Mostly though, they were very polite, in fact, sometimes really nice, even when giving me a ticket.  When they were hostile, I tried to remember that so many people are lying to them and therefore they may presume most everyone is. That is, after all, my own presumption when I cross-examine someone on the stand.  And, I have heard too many stories from too many black men who are going about their business and are harassed or treated poorly by the police, to think they are all made up in some grand conspiracy, though we never get to hear the officer’s version unless he’s being prosecuted or his neck is on the line.

But, that doesn’t change my mind about the violent confrontation approach to protest, or those praising it. You have to draw a line somewhere.  To excuse violent protest is to ask for more violence in reaction to frustration.  And if it is good for blacks, why not any other group or criminal?  I also am amazed at the certainty people have as to the supposedly beneficial motivation of the rioters in Baltimore, who seemed most interested in wanton destruction of the lives of other black people and enriching themselves, self-glorification and attacks on the police that would have in my mind, justified a very violent response.  Whatever the truth is with regard to police abuse, I thought the police force, restrained by the mayor’s orders, was incredibly restrained, even heroic, in the face of violent provocation.
We can do more than one thing at once.  I believe in permanent ongoing government reform, including for the police and am often shocked at the benefit of the doubt we give both police officers and government officials, particularly in court.  Protest over police abuse shouldn’t be something that is seen as abnormal.  It is something we all have to care about  – when it is real, of course.  But the tactics of the protesters, the coverage of the bad leaders, rather than the good ones, and the sympathy people seem to have for violent protest have created more racial dissension than I have seen in decades. I’m far from sure that the reforms, if based upon the idea that there is a war on blacks or police regularly kill black men wantonly, will not in fact make life harder for poorer people, who will have less protection against crime perpetrated by their own neighbors. Because the part that is being ignored, of course, is that urban police in poor areas spend their days in dangerous, hostile territory.

When I was polishing this piece up for posting, I was also looking at some books online by one of my favorite linguists, John McWhorter, who happens to be black. I was not aware that he had written a book about the problems of the black community called Losing the Race, particularly in their adoption of three cults – victimization, separation and anti-intellectualism, all of which play into one another (in my view, the latter two are a subset of the first), and their choice of leaders like Sharpton. Though the book, with a few additions as to recent events, could have been written today, it was actually published in 2000.  In far more detail than I can provide on a blog, he gives statistic after statistic, anecdote after anecdote, building his case. Among the products of these cults is the conclusion held by many blacks and some whites too, that so many years of oppression insulates blacks from criticism for any wrongdoing. This, of course, is not only bad for victims, but for the black community itself - as they are the usual victims. This is the only way to understand why blacks, who are preyed upon and victimized, and regularly murdered by black men, seem to think the police are their biggest problem.
I highly recommend his book, though not least because I agree with what he writes in it (though, I’m only about 50 pages in, he summarizes it beautifully right at the beginning).  He followed it up with Winning the Race in 2006 which I suppose was supposed to a more positive counterpart to the first, though I haven’t read it and don’t know if I will.  Don’t get the idea he is an “Uncle Tom” or even a conservative (for one thing, I think he is an Obama supporter).  He also writes op-ed pieces and has written for Time Magazine, in regard to Ferguson, for example, “However, in light of what we heard last night, I feel that the Ferguson incident is instructive to America in a larger sense. The key element in the Brown-Wilson encounter was not any specific action either man took — it was the preset hostility to the cops that Brown apparently harbored. And that hostility was key because it was indeed totally justified. [Para.] The right-wing take on Brown, that he was simply a “thug,” is a know-nothing position. The question we must ask is: What is the situation that makes two young black men comfortable dismissing a police officer’s request to step aside?”

I’ve read a number of his op-ed pieces in the recent chaos and though he remains balanced and a rational voice, I don’t agree with everything he says anymore than anyone else. But, he’s an interesting thinker who is not intimidated by group think.
I have also learned by experience that some who read what I’ve written here would see it as racist or anti-black or that I completely misunderstand the problem.  As McWhorter explains, the culture is that no explanation must be listened to other than that blacks are victims only. But, the whole point is, do we want to make it better for everyone, whites, blacks and every other group, or, do we want to wallow in our own bias and prejudice and make them worse?  I get mocked from time to time by people who know I believe that moderation is often the best answer and I believe it is here. But, it is not the best answer to everything and for every situation. It is not the best answer with a Hitler and it is not with a riot, though when peace is achieved, a spirit of moderation is usually the best way to proceed. Arguably, had that been more so applied after WWI, there would have never been a WWII (which we never would have known, and our world would be somewhat different).  For me, moderation is often a recognition that we are doing our best to deal with balancing more than one value which can never be done perfectly, and often only very imperfectly. What does moderation mean to me in terms of the ongoing struggle? We have to find a way so that       

  • the words “all men are created equal” includes that the power we cede to our governments does not permit them to discriminate against individuals or groups because large numbers of that group, for whatever reason, are hostile to society or predictably dangerous

balanced against

  • the recognition that the most efficient way to protect innocent people and lives is to recognize that culture and ethnicity very often play a role in who will most likely be dangerous and not to sacrifice individuals to political correctness, whatever their color.
What I am trying to do, is get to the essence of the problem. You can fit policing, profiling or national security into that same framework. In the end, slowly, painfully and sometimes grudgingly, we will continue to try and make this country a more perfect union. Of course, it must be limited to more perfect, not perfect. 

Sunday, October 13, 2013

Political update for October, 2013 - Paradox and the fourteenth amendment

When I was in law school I had no political understanding. I don't mean I didn't have the basic political knowledge we hope (against experience) everyone has, that is, things like separation of powers and the three branches, what democracy is, blah, blah, blah - unless you are resistant, you get that by osmosis and the little bit that is covered in school that even people like me who weren't really listening can't help but absorb. But, I was already heavily invested in the partisan warfare on which I was raised (in my case, very much on the left) and which I now regularly decry and did not understand what lay underneath it all - particularly what the other side thought important. I had long been very conversant with history up to about  the 1700s. But, despite being an American law student, I knew very little about American history. Don't think I was alone - it apparently isn't necessary to know much about history or politics at all to be a lawyer and such knowledge is not even tested in applying to law schools. I also had very little understanding about how law worked. One of the things that some professors would talk about that I could understand intellectually, but not in practical terms, was about how policies and values lay underneath the law. To me and I'm sure many other of my fellow students, it should be black and white.

But, I learned, more from self-teaching and practical experience as a litigator than school.  Now, when I read cases, that is the first thing I try to understand.  When I briefly taught some college classes in constitutional law I tried to imbue that understanding in my students as much as possible for two reasons. One, because I felt I was not taught this very well in college or law school (though I was such a lazy and disinterested student, maybe I just didn't notice) and two, because it is really important. Last, it makes it so much more exciting.

There is a case before the court now that brought all this to mind.  If you don't think it is really about policies and values, take a look at the lead respondent's name:

Bill Schuette, Attorney General of Michigan, petitioner
                                             v.
Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN) et al.

Seriously, that's the name of the respondent. If you were casting a movie, you might market it as a battle between the stodgy legally constituted represented of the state majority and the scrappy minority advocates who could care less about the rules if they hold back what they see as the interests of minorities. Sounds a little like the movie Footloose.

Technically the case is about a constitutional amendment to Michigan's constitution. You may know that Michigan has been the locus of some of the most important Supreme Court educational affirmative action cases.  These cases, of course, concern race.  

In Grutter v. Bollinger (2003), the Supreme Court held in an opinion written by Justice O'Connor (at the time, the swing vote on the court - a conservative who occasionally voted with the liberals) which was joined by the four liberal justices, that Michigan's state law school could have an admissions program that favored underrepresented minorities but also considered many other race-neutral factors, was constitutional because it had a compelling interest in promoting racial diversity, which was the official legalistic question. I'm not going to go into what compelling interest means legally, but just go with this - is promoting racial diversity in colleges so important that we will allow racial preferences for certain minorities even though it violates any reasonable interpretation of the meaning of equal protection under the law in its discrimination against whites and also Asians.

Justice O'Connor started out by discussing the last affirmative action case from 1978, University of California Regents v. Bakke, in which the court banned quotas or set asides for racial or ethnic groups. In a very divided court, Justice Powell wrote an opinion which included a statement that seems like common sense: "[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal." He also held though, that it there could be racial preferences  if there was a compelling interest that was "precisely tailored" to serve that purpose and which was not unduly burdensome on others who bore no fault in our racially divided history. 

Leave aside the silliness of a majority of judges on a court deciding what is a compelling interest or too burdensome to others rather than state governments, individuals or even congress, but he found only one proffered interest which fit the bill - the schools interest in a diverse student body. He was careful to note that race/ethnicity could only be one factor among other race neutral ones.

Nevertheless, jump back to 2003 when Grutter and its sister case Gratz v. Bollinger were decided. There Justice O'Connor noted that her opinion was a deviation from a central purpose of the fourteenth amendment to do away with racial discrimination of all kinds. It astonished me and many others that, reasoning that it had been about 25 years since Bakke, she concluded that: "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

In other words, we will continue to break the constitution for twenty five years. After that minorities will be caught up and we can have equal protection as required by the Constitution.

Say, what? Even two of those who joined her opinion, Justices Ginsburg and Breyer, wrote, essentially, how would we possibly know that ("one may hope, but not firmly forecast"). Though it is impossible to listen to Justice O'Connor and feel any personal hubris, this is an incredibly hubristic or arrogant statement. It would be as astonishing as if a president made the statement in 1978: "[W]e entered intervened in Vietnam in the past 15 years or so, and there are many regrets of having done so.  We expect that fifteen years from now the United States will no longer invade other countries."

Of course, other judges opposed to the majority felt very differently. Justice Thomas wrote what I thought was one of the most interesting opinions of the last decade. He quoted the former slave and then abolititionist, Frederick Douglas:

"'[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us... . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ... And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... [Y]our interference is doing him positive injury.'  

Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the [law school]. The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination. Nor does the Constitution countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of 'strict scrutiny.'

No one would argue that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admission standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.

 The majority upholds the Law School's racial discrimination not by interpreting the people's Constitution, but by responding to a faddish slogan of the cognoscenti. Nevertheless, I concur in part in the Court's opinion. First, I agree with the Court insofar as its decision, which approves of only one racial classification, confirms that further use of race in admissions remains unlawful. Second, I agree with the Court's holding that racial discrimination in higher education admissions will be illegal in 25 years. . . I respectfully dissent from the remainder of the Court's opinion and the judgment, however, because I believe that the Law School's current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months."

It's ten years later. Now the court is determining whether a state may have a constitutional provision, voted upon by its people, banning racial discrimination. And the respondent not only rejected this constitutional amendment as being discriminatory itself -- but it won. You heard me - it won! The Sixth Circuit court has held that the constitutional amendment is discriminatory and violates the federal constitution, which requires equal protection under the law.

You already know without my telling you that lawyers and judges can so pervert the meaning of the law by  "a specious and fantastic arrangement of words, by which a man can prove a horse-chestnut to be a chestnut horse."  I love to quote Lincoln with these words, though, admittedly, his use of them to argue that he was not for the political or social equality of blacks kind of takes the sting out of it. Nevertheless, the abstract point is, when a court tells us that black means white or wrong means right, we lose faith in the institution.  Yet, the Sixth District Court of Appeals has said so. Will the Supreme Court? As so often has happened since Justice O'Connor's retirement, the answer may fall upon the shoulders of Justice Kennedy, the ultimate swing vote.

I can fantasize that everyone who wants to argue about a case has to read the briefs first.  Hah. And they are interesting here. Michigan argues a common sense reading of the equal protection and case law: "They claim that the elimination of race-based policies is endorsing race-based policies."

The Sixth Circuit relied on what is known as the "political process doctrine." Whenever I write about legal topics I have to do a lot of editing and cutting and foolishly feel as if I should apologize for doing so. I do my best to be fair but even my own self imposed if verbose space limitations don't let me put down what everyone argues and opines, and try to here even if it is an impossible task. In short, the doctrine holds that laws (including State constitutions) which targets a program or policy which primarily benefits minorities or changes the political process in such a way that it puts burdens on a minority's ability to achieve his/her goals through the process, violates the federal equal protection clause. That sounds like it might be fair at first blush - but only in a vacuum.

A former litigant, Eric Russell, submitted a "friend of the court" brief at an earlier stage which provided a litany of reasons that this doctrine leads to absurd results, but I will submit my own summary of his: If  the  doctrine is a fair interpretation of the fourteenth amendment equal protection clause, probably any modern law that tries to eradicate race as a factor automatically unconstitutionally prohibits the many laws aimed at affirmatively benefitting minorities even though, as Justice Powell wrote in Bakke and pretty much everyone agrees, one of the core purposes of the equal protection clause is to eradicate race as a factor in our laws. In fact, if you take this doctrine to its logical conclusion - the equal protection clause would itself present a paradox - by its very own terms it would itself be unconstitutional. Of course, that is not the case once you recognize a point made by Michigan - "To begin, this Court has applied the political restructuring doctrine only to laws that impede protection against unequal treatment, never to laws that preclude preferential treatment." All of a sudden, it makes sense again and I believe that may, if the case goes to the State, will be the deciding distinction.

On top of that, if the doctrine applies as the schools and other advocates desire, then neither the democratically elected legislators of a state, nor the people through an amendment of the constitution have no say once an unelected state administrator puts a policy into affect that favors a minority.

The respondents in the appeal - that is the successful plaintiff in the case - argue in a different tone than the state, though much in that of some quite famous civil rights advocates. Yes, it argues black letter law it interprets as supporting it - but it starts with a quotation from one of our presidents that I believe states one of the basic tenets of what we call liberalism or progressivism:

"Men and women of all races are born with the same range of abilities. But ability is not just the product of birth. It is stretched or stunted by the family you live with, and the neighborhood you live in--by the school you go to, and the poverty or richness of your surroundings. It is the product of a hundred unseen forces playing upon the infant, the child, and the man. . .

For Negro poverty is not white poverty. Many of its causes and many of its cures are the same. But there are differences--deep, corrosive, obstinate differences--radiating painful roots into the community, the family, and the nature of the individual. . .

Freedom is the right to share, fully and equally, in American society--to vote, to hold a job, to enter a public place, to go to school.  It is the right to be treated, in every part of our national life, as a man equal in dignity and promise to all others.

But freedom is not enough. You do not wipe away the scars of centuries by saying: Now, you are free to go where you want, do as you desire, and choose the leaders you please.

You do not take a man who, for years, has been hobbled by chains, liberate him, bring him to the starting line of a race, saying "you are free to compete with all the others," and still justly believe you have been completely fair.

Thus it is not enough to open the gates of opportunity. All our citizens must have the ability to walk through those gates.

This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity--not just legal equity but human ability--not just equality as a right and a theory, but equality as a fact and a result."

And should this case go in favor of the schools and groups advocating for minorities, I believe that perspective will be the deciding factor.

But, I want to argue something more. The two different perspectives in this case are central to the two prevalent ideology's views on the equal protection clause when it comes to discrimination.

In the general conservative's perspective, the clause requires equal treatment now, incorporating only present intentional discrimination, and not taking into consideration the past inequities of our country's racially unfair past. No one starts in a precisely equal status or providential circumstances with anyone else - and that is life - what counts is that they now have equal opportunity under the law. Thus, racial preferences are not permitted because they unfairly prejudice others who have no deserved guilt of their own in past unfairness.

In the general liberal perspective the past matters because it must by necessity have an effect on present circumstances. Where all cannot start in as equal circumstances, we must remedy it by providing benefits which are apparently unequal but allows for groups that have been traditionally discriminated against and have not flourished to do so. Most especially it must remedy past inequities due to skin color and ethnicity, even where the beneficiary has less merit than an excluded majority party or has not suffered at all from racial prejudice.

You could phrase the central issue a number of ways - for instance, you could say that one side sees "equality" as meaning everyone now has the same rules, though it be inherently unequal in result, and the other side believes equal means that past inequities must be remedied, perhaps hypothetically perfectly, even if it means that different rules apply to different races.  
 
You can agree or not with these perspectives. I believe they are presently considered more important in our national debate than any other constitutional issue and I am including those surrounding abortion. They have now been so engrained in us that they dominate the conversation legally, politically and culturally. I am not arguing here that it is deserving of this primacy or not.  It just is.

Ironically, the two perspectives are also completely the opposite of  the chronological directions the two ideologies traditionally look to - conservatives backwards and progressives forward.  But, this is no surprise as rule number one of partisan ideologies - they can switch their policy preferences on a dime if it suits them politically. But that is not the point of this piece and I'll visit it again another day.

While writing this post I happened to also watch Bob Costas give a little opinion piece on sport team names which contain indigent Americans or Indians references.  Costas clearly aimed at being balanced and first argued that while a number of teams have changed their names, those that remain are generally devoid of any ill intent. In fact, they were admiring and respectful just as are team names like The Patriots and The Pirates. This perspective is in accord with conservative perspectives. Then he said, but look at the name "Redskins." It is different than other similar team names and there is nothing respectful about it. It is still a slur even if the present usage is purely benign. Can we imagine a team named black skins or white skins? This perspective, which ignores whether the intent is innocuous or not, is from the liberal ideology - past prejudice counts and is not wiped clean by present intentions. Again, agree or disagree. My point is the centrality of the issue in our lives.

And though it is certainly  far more complex and concerns any number of issues, the central political debate this past month also is affected by this argument. For, much of the question of whether the government spends too much and whether it is worthwhile to suspend some of our government in order to demonstrate the importance of reducing spending, often concerns the issue of so-called entitlements and protecting the economic prospects of the lower class, a high proportion of whom are minorities.  

This debate should not be unexpected. It was inevitable. There was no equal protection clause in the original Constitution or Bill of Rights. It was written in the fourteenth amendment primarily in order to protect the rights of black Americans after the slaves were freed. Nevertheless, we could apply it as it is written, neutrally, without favoring any group. It is a basic tenet of equal protection cases that it protects individuals, not groups anyway.  But, on the other hand all three post Civil War amendment had remedial clauses empowering congress to enforce its provisions, and, logically, this can only be done by legislating as to groups, not individuals. For some, it takes little legal razzle dazzle to apply that to judges who now regularly act as legislators. The puzzle is endless as what doing so can result in is appointed judges not subject to election determining the validity of their constitution amendment as directly voted upon by the people of the State of Michigan, and, in the name of equality, ruling that only inequality of law is necessary to achieve a hoped for equality in fact.

As they say about quantum physics - if it makes sense to you, you don't understand it all.

About Me

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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .