World-Wide Radiance of the American Melting Pot

February 24, 2015

In this world the grossest of inhumanity is euphemistically described as ethnic cleansing. The mutli-directional genocide of the old Yugoslavia has become routine. Boko Haram takes aim at education and at religious difference in Africa, targeting connections with America and the west. The Islamic State and al-Qaeda in the Middle East, with tentacles into much of the Muslim world, target whoever doesn’t belong and subscribe to their version of Islam or dare question their authority, They have targeted America, England, Spain, France Norway and counting. It is terrifying how quickly decent peace-loving communities have been dismembered and destroyed.

The past is prologue, but can’t be undone. The question is what do we do now. This is partly an ideological struggle because terrorists depend on recruits. How can we handle such a high-stakes ideological struggle? One aspect of that is at home.

Urging the U.S. Supreme Court to end segregation in Brown v. Board of Education in 1954 both the Democratic Truman Administration and the Republican Eisenhower Administration explained to the Court that our respect for people of all races, faiths and national origins were central to American worldwide success, especially in the fight against Communism.

Our melting pot and mutual concern and respect define the best of America. Our unwillingness to give in to bigots and bigotry, racists and racism, our willingness to see, confront and deal with bigotry and racism, our determination to stop it, make our strongest appeal. It is our tolerance, our neighborliness, our welcome to all from everywhere that makes us the shining city on a hill that our Founders hoped we would be. It is not our bloodlines but our coming together to make ourselves and welcome each other as Americans that makes us so. That e pluribus unum is what the world admires. They want our neighborliness; they crave the American idealism that gives anyone and everyone a chance to make a decent living and a decent life. They crave the welcome that glows from our melting pot.

People dream of America in corners of the world where they are crushed as if they are worthless except for the masters’ business, worthless unless they are of the masters’ bloodlines, worthless unless they have something to offer, at least a bribe. We need to keep the dream of the American melting pot alive both for their sakes and for ours.

Our American melting pot is more important than ever to the world we inhabit. But make no mistake it is crucial here at home. If the hatreds that once fanned the Old World and now fan the so-called Third World land on our shores, none of us are safe. We were all melted in that pot and we all live or die together. There is no safety in a cauldron. We have to sustain the values of our shared tolerant American culture.  For all our sakes. We are all beneficiaries.

I pointed out last week that the American melting pot, one of our most fundamental of institutions, was the result of very deliberate decisions to educate us all together, without regard to wealth, faith, gender, national origin or spoken language, and then, finally, without regard to race. And yet, the Court that once announced Brown v. Board of Education is not helping to preserve that centuries-old melting pot. Instead it is making it easier, in some respects even forcing us to re-segregate ourselves by race, religion and wealth.[1] By doing that, the Court is plunging a dagger into the heart of America.

— This commentary was broadcast on WAMC Northeast Report, February 24, 2015.

[1] See, e.g., Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007); Zelman v. Simmons-Harris, 536 U.S. 639 (2002); and see Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press 2010); Erica Frankenberg, Chungmei Lee and Gary Orfield, “A Multiracial Society with Segregated Schools: Are We Losing the Dream?”  The Civil Rights Project Harvard Univ. (Jan. 2003) available at http://www.civilrightsproject.harvard.edu/research/reseg03/AreWeLosingtheDream.pdf (June 22, 2007).


Dr. King’s Message of Love

January 20, 2015

Yesterday we celebrated Martin Luther King Day. We are still much too far from a post-racial society. For the big victories of the Civil Rights Movement, we think of Brown v. Board, and the Civil Rights Act of 1964, which the Rehnquist Court did its best to chip away, and the Voting Rights Act of 1965 which the Roberts Court is doing its best to tear up. There was another victory that I’d like to talk about, just a few years after Martin Luther King shared his dream at the Lincoln Memorial.

It often seems like a postscript to Dr. King’s legacy but was actually at its very core. When the NAACP planned its attack on school segregation, they started with graduate schools, racking up a string of victories so that any other decision in Brown would have flatly violated the teaching of a whole group of recent precedents abandoning separation in law school, medical school, graduate school in one state after another. But until Brown they didn’t touch grade school. They had concluded that grade school would be the most inflammatory and most difficult because of southern fear of what they called miscegenation, marriage between whites and Blacks. There was a sense in which worrying about marriage of kids in elementary school rather than adults in graduate school seemed backwards. But they understood the fear and went with it.

Fear of intermarriage was a very big deal with reason. Sociologists have been finding that one of the main ways Americans have been putting stereotypes and prejudices behind them has been intermarriage, not just Blacks and whites, but Jews and Christians, whites and Asians, different white ethnic groups, and now the marriage of gay or lesbian children of straight families, all of us to some degree have been marrying out of our ancestral groups, introducing our families and producing children who celebrate all sides of their heritage. Marriage and intermarriage matter.

Rabbis don’t like Jews to intermarry – they’re afraid to lose another Jew to the assimilated culture. When Jeanette and I married, it was hard to find a rabbi who’d marry us. There are a lot of mixed families in our Temple, creating the loving, open community we love.

In the 1950s Mildred Delores Jeter grew up down the road from Richard Loving in rural Virginia. Richard was a white bricklayer; Mildred a young Black girl. In that part of the state, Blacks and whites often socialized, but didn’t marry. Mildred and Richard weren’t thinking of Dr. King or making a racial statement. They just fell in love, married and wanted to raise a family together. For that they were arrested, jailed, convicted and kicked out of Virginia. They were together until, tragically, Richard was killed in a traffic accident nearly twenty years later.

The year Martin Luther King shared his great dream with us, Mildred wrote to U.S. Attorney General Robert Kennedy about their inability to visit family and friends in Virginia. Kennedy sent them to the ACLU whose lawyers brought their case to the U.S. Supreme Court. In 1967 the Warren Court gave us the historic decision of Loving v. Virginia, one of its great decisions, establishing the right to marry, and marry without discrimination.

That part of the Civil Rights Movement seems resilient and lasting – we keep meeting, befriending and learning to love each other. The world changes, though slowly. It has always seemed appropriate to me that they were Mildred and Richard Loving. Dr. King’s was a message of love; love needs to run this world.

— This commentary was broadcast on WAMC Northeast Report, January 20, 2014.


Killing Garner

December 9, 2014

Are we safer with or without the police around? When juries, grand juries and prosecutors regularly decide that plain, on camera, evidence doesn’t show murder, what protects people?

It’s too dangerous to put your key in your front door like Amadou Diallo a few years ago. It took 41 bullets to meet that threat and shoot him in the back. It’s too dangerous to hold your hands up like Michael Brown in Ferguson – hands up can be interpreted as threatening. It’s too darn dangerous to complain “I can’t breathe” like Eric Garner – we know from sexual politics that people understand “I can’t” to mean “I can!” On camera they could see just how dangerous a man can be when he can’t breathe. And any Black kid with a toy gun is toast.

The police talk about bad officers. Most are not looking for a chance to show just how tough they can be toward inoffensive or defenseless people. But don’t let the so-called good cops off easily when there are no repercussions, when the “good cops” stand with the “bad cops” because it’s a dangerous job, so that there are no enforceable rules of behavior toward civilians and anything the police do goes but nothing civilians do – especially if they’re African-American. The culture of silence gives us no reason for confidence. No firings, no powers for civilian review boards, plus judges and prosecutors who stand by the cops regardless, like the judge who told me he believed my client but found him guilty because “I couldn’t do that to the police.” Are those who stand-up-for-the-cops-no-matter-what any better than the Romans who liked to watch Christians thrown to lions?

Black families have “the conversation” with their kids about how to deal with the police. Actually I’m also better off when I don’t argue with the police, don’t claim to know my rights. Most of my clients were Black. I gave them the same advice plus keep quiet and politely ask for an attorney.

Apologists for the police have used the conversation to say it was Eric Garner’s and Michael Brown’s fault that they were killed. They should have done what they were told. Then they wouldn’t be dead. But so what? I teach my law students that they should not expect their clients to know what to do and what they need to tell their lawyers. The lawyers are the professionals. The lawyers are trained. The lawyers must expect themselves to shape the encounter usefully and help the clients do what needs to be done.

It is a lot too simple and too self-satisfying to blame the victim. The Americans ISIS beheaded shouldn’t have been there if they knew what was good for them but that gave ISIS no excuse to behead them. Some women might not have been raped if they made themselves look ugly but that’s no excuse to rape them. I took part in a rape case where a young man was charged with raping an older, shriveled charwoman – not looking pretty doesn’t necessarily protect women. But no matter, none of them, pretty or ugly, young or old, should have been raped. It doesn’t help to blame the victim. Blaming Brown and Garner and Diallo and the 12 year old kid doesn’t make a lot of sense to me – none of them did anything that justified execution. Do we have to take the guns out of their hands to convince the police to use their heads?

—  This commentary was broadcast on WAMC Northeast Report, December 9, 2014.

References

On Eric Garnder’s death, http://www.nytimes.com/2014/12/04/nyregion/officer-told-grand-jury-he-meant-no-harm-to-eric-garner.html?action=click&contentCollection=U.S.&region=Footer&module=MoreInSection&pgtype=article


War on What – Crime or the Poor?

October 14, 2014

Many of us have realized that sending troops into some areas can be counter-productive. No matter how many the Israelis kill, more Palestinians prepare to fight them. Our boots on the ground in Iraq and Afghanistan led many to take up arms against us. To them, we were the invaders.

Let me pose an analogy and see if it fits. We don’t have survey data from everywhere but what we have is telling. The Rutherford Institute, which has billed itself as “A non-profit conservative legal organization dedicated to the defense of civil, especially religious, liberties and human rights,” told the U.S. Supreme Court recently, that “the most common justification cited by New York City police for stopping individuals was presence in a ‘high crime area’” and “an additional 32% of stops were based on the time of day, and 23% of police stops were for an unspecified reason.”[i] Read the rest of this entry »


The Anti-Union Court

July 1, 2014

The Court decided yesterday in Harris v. Quinn that at least some of the employees who work under a collective bargaining agreement don’t have to share in the costs of negotiating that agreement. The Court says it violated their First Amendment rights. How many unions and employees it will apply to is still unclear but this is not the first move the Roberts Court has made in that direction.[i] Sometimes the patterns matter much more than the individual decisions, whether good or bad. Read the rest of this entry »


Passover – The Indivisibility of Freedom

April 15, 2014

This is Passover, a holiday that comes straight out of the Bible, the Almighty commanding us to tell the story of the Exodus to each new generation as well as reminding ourselves. The Exodus, of course, is a story of freedom from slavery. The Biblical story is about the Hebrew exodus from slavery in Egypt. But we are very explicit about relating that story to the freedom of others. Read the rest of this entry »


Supreme Court Recess Appointments Case

January 14, 2014

The Supreme Court heard argument yesterday about recess appointments. The Constitution says:

The President shall have the power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.

Presidents have made such appointments since the Washington Administration. In the eighteenth century, adjournments were lengthy because travel to one’s state or district could take months. Now senators and representatives can make the trip quickly. Since at least Ronald Reagan, presidents have made appointments during intra-session adjournments of the Senate.

Democrats under Bush and Republicans under Obama started calling lengthy adjournments “pro forma sessions.” Nothing is supposed to happen; the Senate is vacant except for a couple of senators to gavel in these pro forma sessions. The purpose is straightforward – to prevent the president, initially Bush, now Obama, from making recess appointments so the government could keep functioning. Justices, on both sides of the political aisle, described that as “intransigence” and “irresponsibl[e].” Read the rest of this entry »


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