America's Holocaust.
News From the Western Front:
July 12, 2009 at 8:07 P.M. After reviewing and correcting this essay, my revisions could not be posted at blogger. I will try again tomorrow to make all necessary revisions and corrections of inserted "errors" and to post the revised essay.
July 10, 2009 at 10:44 A.M. All images accompanying this essay have been blocked. Spacing between paragraphs may be affected, again. Insertions of "errors" in the text will probably continue as part of the cyberwarfare against these writings emanating from New Jersey.
September 2, 2008 at 11:13 A.M. new "errors" inserted and corrected.
June 20, 2008 at 5:30 P.M. new "errors" inserted in this work. I will continue to correct the text after each defacement.
April 30, 2008 at 11:55 A.M. Obstacles to posting and attacks against my defense of the rationality of religious belief are just routine stuff at this point. New "errors" were inserted in this essay at my MSN group. The Jersey Boys are vicious racists who dislike having N.J.'s criminality and fraud in legal proceedings examined, publicly. Hence, continuing criminal attempts at censorship of my writings. (See "Jay Romano and Conduct Unbecoming to the Judiciary in New Jersey" and "Maurice J. Gallipoli and Conduct Unbecoming to the Judiciary in New Jersey.")
More N.J. judicial portraits are coming up, including Peter G. Verniero's "profile" and former Chief Justice James R. Zazzali's, as well as Mark Baber's profile and others. You will see what I mean about racism.
Deember 3, 2007 at 11:53 A.M. I am unable to access the Internet or receive or send e-mails. My cable signal is blocked. I will continue to write on a legal pad. I will search for an Internet Cafe or other location where I can find a computer that will allow me to get on-line.
I. Introduction and Listing of Sources for Discussion.
I remember a "black-and-white" film ("black-and-white" is the appropriate term!) of the struggle for voters' rights where an African-American minister and other citizens attempted to register in order to vote in local elections. Was it in Alabama? Mississippi? This -- here's someone who deserves the word -- gentleman had great dignity and poise. He approached the old courthouse in a sleepy rural town, sought to enter it, when a heavy-set sheriff (Bull Connor?) and some uniformed, fascistic-types prevented him from doing so. He insisted and was punched in the face, on camera.
This gentle man continued to confront his abusers, demanding his rights, refraining from violence, while being beaten and prevented from registering to vote. This magnificent African-American religious leader was not the person humiliated in that incident. His efforts are an inspiration for me in the struggle that you are witnessing to set down these words and say these things that need saying. Being insulted in terms usually reserved for African-Americans is a great compliment today. I am flattered and heartened by the daily war against New Jersey's hackers and viruses. I wish for all of you to see the nature of my writing experience:
October 11, 2007 at 9:18 A.M. I am blocking:
http://view.atdmt.com/iview/msnnkhac001728x90...
http://ad.doubleclick.net/adj/2998.blueLithiumnetwork...
http://view.atdmt.com/MON/iview/msnnkhacssc09600...
http://ad.doubleclick.net/adj/N3577.msndc/B23878... (Senator Bob?)
When I speak of spiritual superiority in the African-American community that episode in the civil rights struggle -- and many others like it captured on film -- may be used for illustration. As I write this first draft, an African-American professor at Columbia University was confronted with a noose at her office door. Protests at the Columbia area of Manhattan have included many New Yorkers of all colors and ethnicities. More protests are scheduled, I hope, so that I may attend with my child, expressing solidarity with this offended scholar.
T-shirts bearing the picture of a noose have appeared and are available for a small fee. Soon there will be bumper-stickers bearing a noose and racist slogans. Swastikas and graffiti have appeared in several Synagogues and schools in the city. The battle of images and slogans has begun.
My essay has already been defaced, spacing has been altered, letters have been deleted by hackers. Many other works by me are defaced on a daily basis. Corrections of the same "errors" are made thirty or forty times. My book is, deliberately, not sent to distributors. The true number of visitors to this site is unknown. I am running scans 24 hours per day. Hundreds of "annoyance calls" are received routinely. Use of my computer is obstructed by viruses. Illegal spyware is directed against my computer from New Jersey government offices. (An "error" has already been inserted in this text.) I am stimulated by this reaction to persist in my struggle. ("What is it like to be tortured?")
My book will not be distributed to book sellers, despite many requests from consumers, even though I am donating all profits to the publisher. I wonder what happened to "Publish America" and whether "Anonymous," the alleged author of an scurrilous attack on me, is really Anne Milgram and the N.J. Office of Attorney Ethics (OAE). All of this harassment and cybercrime is well-known to the authorities in New Jersey, as is the participation of law enforcement and ethics officials in a criminal conspiracy to violate civil rights and in another conspiracy to cover-up that criminality -- all under the auspices of the New Jersey Supreme Court. ("New Jersey's 'Ethical' Legal System" and "Law and Ethics in the Soprano State.")
N.J.'s courts have given up any legitimate claim to respect or moral authority. The following discussion is based on the following primary sources:
Angela Y. Davis, Women, Race & Class (New York: Vintage, 1983), pp. 172-202.
Mention of Professor Davis seems to upset many people, usually people who have no idea of what she has written or why, what her struggle has been, nor any appreciation of the level of intellectual sophistication on display in her books and lectures as a philosopher "engaged" in political revolution. I am thinking of the late writings of Jean Paul Sartre. For me, Angela Davis is Sartre's ideal "engaged" political philosopher. Professor Davis studied under Herbert Marcuse in America and Theodor Adorno asked to supervise her dissertation in Germany.
James Baldwin, "Nothing Personal," in The Price of the Ticket: Collected Non-Fiction 1948-1995 (New York: St. Martin's,1985), p. 382.
Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice (New York: Basic Books, 1987), pp. 162-181, most importantly, pp. 215-239 ("The Right to Decolonize Black Minds").
Alan Bean, "Racism in Jena, Louisiana: The New Jim Crow," in International Socialist Review Sept-Oct., 2007, p. 20.
Robert Bernasconi, "The Invisibility of Racial Minorities in the Public Realm of Appearances," in American Continental Philosophy Reader (Indiana: Indiana University Press, 2000), p. 353.
Judith Butler, Precarious Life: The Powers of Mourning and Violence (New York: Verso, 2004), especially pp. 19-101.
Andrew Valls, Race and Racism in Modern Philosophy (New York: Cornell University Press, 2005).
Steven Coll, "Disparities," in The New Yorker, October 8, 2007, at p. 31.
Elissa Goodman & Al Baker, "Noose on Door at Columbia Prompts Campus Protest," in The New York Times, October 11, 2007, at p. B3.
Dredd Scott v. Sanford, 60 U.S. 393 (1856).
Martha Minow, "Identities," in Yale Journal of Law & Humanities Vol. 3, No. 1 (Winter, 1991).
Laurence Tribe, American Constitutional Law (New York: Foundation Press, 1988).
Cornel West, Race Matters (Boston: Beacon Press, 1993).
Cornel West, The Cornel West Reader (New York: Perseus, 1999).
Please bear in mind that spacing of paragraphs may be altered by hackers. Single-spacing may be impossible. Letters will be added to (or deleted from) words. Continuous attacks on this text and frustrations in the efffort to write or correct it must be expected.
There is no way to do justice in one book or essay to the tragic African-American experience within the United States legal system. I will only touch briefly on a few (for me) painful -- even unbearable -- issues that we can all help to remedy in fighting racism. Our friends and neighbors, brothers and sisters in the African-American community -- especially young people -- are enduring a Holocaust. An entire generation, once again, is being decimated, sacrificed, as life-prospects for millions are blasted away while we "others" remain apathetic and comfortable.
President-elect Barack Obama's achievement is a great symbolic step forward. However, the battle against racism and social injustice must continue as long as one person is injured or violated in his or her life-prospects by racism. Racism is a societal problem with a centuries-old culture that has been steadily eroded over the past forty years. In my opinion, the African-American and U.S. legal achievement in so short a time borders on the miraculous. Yet there is a long way to go before we can truly speak of a fully racially and otherwise equal or just society. The struggle continues.
I will not pretend that this crime at Jena, taking place at the center of American life, is only another "issue." The African-American Odyssey is the locus of this nation's deepest struggle over identity. This struggle cannot be relegated to peripheral importance. At issue in the continuing race wars is the very meaning of American history as well as of our public lives, as constructed in our Constitutional understandings of who we are as a people with a "prophetic mission." (Cornel West)
The destruction of the native-American population is not a different event. Both attempts to erase a people from history and the surface of the planet, as persons, are instantiations of the same philosophical principles resulting from incoherent premises -- principles connected to the paradoxical concept of race. I can not live in a comfortable relationship with what can only be described as evil. I won't be part of it. Not for one minute or even one second.
No one should be an attorney in a system saturated with racism, unless he or she is devoted to fighting racism. Think about that if you are a law student. In parts of America, such a struggle may well be hopeless. Nevertheless, it must continue to be waged. Many lawyers practice in that activist and progressive manner -- including many prosecutors -- even as others are all about pursuing personal power or wealth. The struggle for racial and social justice, as I understand it, cannot take place within the strictures and polite forms of America's legal culture. I cannot think of a "nice" way to chat about murder, torture, and enslavement -- especially from the point of view of victims. See chapter 5 of Duncan Kennedy's Legal Education and the Reproduction of Hierarchy (New York: New York University Press, 2004), pp. 58-72 (original edition), pp. 72-88 (new edition).
The very sight of someone like Terry Tuchin is, appropriately, a cause of indignation and outrage. Nevertheless, it is important to realize that there are many good and honest people working as prosecutors and therapists. In other words, law enforcement includes persons I respect and admire, whether in agreement or disagreement. I know judges who try to do what they can about this dilemma. However, I am convinced that the tragedy of African-Americans' relations with the legal system is a societal "problematic" unfolding at the level of politics, jurisprudence, philosophy, psychology and sociology -- even science -- all at once and shaping our national artistic imagination. (See "Amistad," "The Color Purple," and then "Crazy in Alabama.")
The metaphysical "roots" of this cluster of issues concerning race are very deep in Western thought and are linked to mind/body controversies and the ontology of the subject. ("John Searle and David Chalmers on Consciousness" and "Nihilists in Disneyworld.") Race provided a fault line separating, in eighteenth century terms, mind from body. Rationalizations of slavery are tied to the entire architecture of Western thought. Hence, removing that tumor of racism has not been easy. ("Is Western Philosophy Racist?")
No single discipline's perspective or narrow examination of the so-called "issue" will be adequate in dealing with racism in U.S. society because this bundle of problems (hence, the term "problematic") is all-pervasive, subtle, insidious -- like malignant forms of cancer -- and inescapable. I remember in the nineteen eighties several so-called "serious" efforts to show that African-Americans were "naturally" better athletes, but less "intelligent" than whites. Efforts destroyed, easily, by logical analysis. Such a destruction effort may be a future topic for me.
On this morning's news program, Nobel scientist and co-discoverer of the Double Helix, James Watson, was quoted to say: "... it is assumed that Africans are as intelligent as 'we' are when all the studies show that this is not the case." Well, there are no studies that I am aware of suggesting that persons born in Africa -- including many whites -- are less intelligent than American-born white persons. This moronic statement has nothing to do with science. Only a scientist can say something this stupid without being held accountable for the remark.
When a book like The Bell Curve could be taken seriously -- even for five minutes -- you know that American society is not yet free of racism. That thoroughly discredited book is still in print. Many others with much more to say cannot be published or see their works distributed to book sellers because a book like The Bell Curve is taking up shelf space. I don't see how one can explain such a phenomenon except for racism.
I am not suggesting that we engage in censorship, but that a little consumer power should be directed at moral ends. Don't reward publishers for putting something like The Bell Curve in bookstores. (An "error" mysteriously appeared in this paragraph since my last review of this text. I have now corrected it.) The most casual examination of ostensibly "scholarly" materials written by racists reveals glaring logical errors and fallacies undetected by reviewers, who must be blinded by conscious or unconscious racist assumptions, since no other explanation makes sense. ("David Stove and the Intellectual Capacity of Women" and "Race and the Challenge of Community in America.")
There will be enormous obstacles and harassment in writing this essay, threats and destruction attempts have already been made. I will struggle to write it anyway. We need a multidisciplinary approach that appreciates the attitudes and ideas clouding legal judgment in this area, explaining why Americans do not see what the rest of the world sees all too well that is staring us in the face.
Our penitentiaries have become slave ships. ("Amazing Grace.") We are building concentration camps in our cities to house minority young people and poor whites -- especially African-Americans -- and we cannot allow this heinous injustice to continue. Silence is complicity. Even in a torture chamber these words must be shouted to the world: "American law has become a lie for millions of powerless people in our society."
I recall Irish revolutionaries in a British prison who refused all clothing and participated in a hunger strike -- leading to several deaths -- writing messages with their own feces on prison walls: "freedom," "dignity," "respect" were among the words appearing on their walls. I am doing something similar. Perhaps someone with good reasons to understand torture and enslavement, like me, is an excellent candidate to discuss this reality of racism in America.
Racism contradicts America. Racism negates the American idea. Racism is truly un-American -- even if racism has been part of American history always -- because racism undermines the moral project of the community. Racism makes the American legal system a hideous farce for its victims. Maybe all of this helps to explain those swastikas in New Jersey in 2007. Richard G. Jones, "New Jersey Agrees to Settle Trooper's Harassment Suit," in The New York Times, October 2, 2007, at p. B2. (Organized crime group within New Jersey's State Police.)
As for the legal system, Jonathan Miller, "In Parking-Pinched Jersey City, Four Judges Are Suspected of Fixing Parking Tickets," in The New York Times, October 10, 2007 at p. B1 (matters "fixed" at New Jersey's low level criminal courts). Other judges were later found to be corrupt. I am sure that many more will be indicted soon. Finally, see "Deborah T. Poritz and Conduct Unbecoming to the Judiciary in New Jersey," then "James R. Zazzali and Conduct Unbecoming to the Judiciary in New Jersey" and "Stuart Rabner and Conduct Unbecoming to the Judiciary in New Jersey." These are the three most recent "Chief Justices" in New Jersey's legal system. In the judgment of many experts, all three should be removed from office and/or disbarred.
Nothing but racism can explain N.J. Attorney General Anne Milgram's decision to discourage persons from reporting political corruption or incompetence in the Garden State. See, "Trenton: Ex-Boxing Commissioner Sues the State," in The New York Times, January 9, 2008, at p. B5 (N.J. boxing commissioner, Larry Hazzard Sr., was ousted by Anne Milgram because Mr. Hazzard exposed errors by a subordinate.)
I am afraid the problems in New Jersey can be found both at the top of the system: "Stuart Rabner and Conduct Unbecoming to the Judiciary in New Jersey" and at the bottom of the legal barrel, "Mafia and Street Gang Alliance Broken Up in New Jersey."
The concept of race has slipped its moorings, escaping into many areas of American political and intellectual life. Race has become -- and this is indeed ominous -- a "free-floating signifier" attachable and detachable at will to dehumanized "others" in addition to its eternal connection to dark-skinned persons in America. There is only one precedent that I recall for such a development in world history. The category of "inferior" or "defective" persons in Nazi Germany during the thirties expanded to include Jews and others who were "like" Jews -- gays and lesbians, socialists, radical intellectuals, priests and weird Christians. Christians who actually lived Christian lives were sent to Auschwitz. True, there were not many such Christians.
N.J. is the American jurisdiction that comes closest to the Nazi horror. See Jill P. Capuzzo, "At Jewish Cemetery, Vandals Strike on Large Scale," in The New York Times, January 10, 2008, at p. B3. Corruption and poison in the state's legal culture makes the appearance of someone like Terry Tuchin or Diana Lisa Riccioli both understandable and much more repulsive as well as sad than a similar catastrophe would be elsewhere in America. ("An Open Letter to My Torturers in New Jersey, Terry Tuchin and Diana Lisa Riccioli" and "Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture.")
The category of "inferior" race has expanded to include immigrants, Muslims, native Americans, and women -- especially sexually "deviant" women and powerless men, men who are "like" women in the popular imagination. This phenomenon has received very little or no philosophical attention. This is true despite the essentially philosophical nature of the development.
Almost one million gay men and lesbian women died in Hitler's concentration camps. Jews and non-Jews. Hundreds of thousands of socialists, intellectuals, artists and Christian clerics were relegated to a similar fate. Perhaps a million prostitutes perished as well. Would you have been among those victims? Or would you prefer to be one of their victimizers? Are you an African-American victim of racism? Or would you prefer -- whatever your skin color -- to be one of the victimizers of your African-American neighbors? Neutrality is not an option.
"In the German concentration camps, Jews wore yellow stars while homosexualists wore pink triangles." Gore Vidal reminds us, cautioning young people not to forget: "Like it or not, Jews and homosexualists [African-Americans and Latinos/Latinas?] are in the same fragile boat and one would have to be pretty obtuse not to see the same common danger."
"Pink Triangle and Yellow Star," in United States: Essays 1952-1992 (New York: Random House, 1993), pp. 597-598.
To be a gay person anywhere is to challenge the fascist myth of "normality" -- something which is a capital offense for some would-be enforcers of normality -- and the same is true for artists or radical intellectuals, like me, who will receive the same penalty. To suggest that "love" and "family" mean whatever we want them to mean was to guarantee your own execution at the hands of Nazis and others in the twentieth century. I suggest that this insistence on the freedom to construct our own "true" interpretations and meanings, as men and women, is my unforgivable offense, according to New Jersey's criminal "power-brokers." I will not hesitate to describe New Jersey's legal structure as what it clearly is -- a sewer of corruption and incompetence. ("New Jersey is the Home of the Living Dead.")
The following statement was written by a Nazi in the late thirties. As you read this paragraph, think of the view of African-Americans expressed by American political leaders from the birth of the nation until, say, George Wallace. Today these views may be more veiled. I believe that they are still present, as evidenced by the distortion of spacing in early drafts of this essay and daily hacks into my computer. Any achievement by an African-American person will first be dismissed as worthless, then when the merits of that achievement become undeniable, people will say that the person "cheated." Intelligence is a category of guilt for "sub-humans." Eventually, someone else will claim credit for the insight. ("What is it like to be plagiarized?" and "What is it like to be tortured?")
"Who in the future is to do the heavy and dirty work which every national community based on labor will always need? ... Is it to be left to any part of our German people to occupy such slaves' positions? The solution consists in our condemning alien European stock, the Poles, Czechs, Jews, Italians" -- Italians were ostensibly "allies" of the Germans when this was written -- "and so on to these slaves' occupations."
Douglas M. Kelly, M.D., 22 Cells in Nuremberg (New York: McFadden Books, 1961), p. 13.
Does this sentiment express what many Americans feel not only about African-Americans, but also concerning the "little brown people" working for slave wages in "maquiladoras," the "rug merchants" dying in Iraq, along with working class young Americans -- who have no idea of why they are in Iraq in the first place serving as "canon fodder" in an increasingly pointless war? (See again: "Maurice J. Gallipoli and Conduct Unbecoming to the Judiciary in New Jersey" and "We don't know from nothing.")
Where are America's philosophers on this issue? With some exceptions, philosophers are mostly absent from the public discussion of these heated controversies. Philosophy cannot absent itself from this dialogue on race. Race is a philosophical construct. It means whatever we want it to mean. Biologists identify one human species, homo sapiens, with likely origins in Africa. (A new "error" was inserted in this sentence overnight.) We can't blame the scientists for this current dilemma. ("Is Western Philosophy Racist?")
Philosophers have a unique responsibility in dealing with racism. Philosophers have mostly avoided that responsibility. What efforts are being made by American philosophers to bring their subject to the people and engage in public controversies concerning our most vital concepts? Not much that I can see. Exceptions include Angela Davis and Cornel West, Jonathan Kozol and a few others, not many.
I will focus on one case in Jena, Louisiana. I will delve into intense controversies in Constitutional and substantive criminal law as well as philosophical and political controversies that are now global. This essay -- if I am able to post it and it manages to survive anticipated attacks -- is one brick tossed at the Winter Palace of American racism. It is up to each of you to pick up your own -- non-violent and peaceful "bricks" -- and to throw them at that conceptual structure. We will overcome, if we persist in this struggle. And we must perist. We must overcome the legacy of slavery because we owe it to our children to leave them in a world that is finally free of this scourge. K. Anthony Appiah, "Identity, Authenticity, Survival: Multicultural Societies and Social Reproduction," in Amy Gutman, ed., Charles Taylor: Multiculturalism (New Jersey: Princeton University Press, 1994), p. 149.
The suffering and pain of the African-American community must be seen as our own whatever we look like. More on this point later. What follows will range broadly over legal materials, philosophy, political theory, economics, science and theology as well as literature. The discussion may be described as scholarly and theoretical. However, this essay is advocacy. I offer argument and critique that is explicitly on the side of the African-American community in what can only be described as a continuing struggle for life and freedom. Nothing will alter the fact that, today, at the heart of all that is demonized in our culture we still find crucial aspects of African-American identity.
African-American identity in a postmodernist culture is no longer limited to dark-skinned persons. Guess who may be next for racists? You. An African-American in U.S. society is like a person struggling to reach the surface of a deep ocean into which he or she has been plunged, so as to breathe freely, while being chained to millions of others. That struggle to reach the surface has been taking place for 400 years. Millions of your fellow citizens are desperately trying to breathe -- just to breathe. This must be our shared struggle. We will either break the surface of the waters together and breathe freely, at last, or we all will drown together. No one should imagine that the fate of America can be separated from the situation of the African-American community. Right now, we're drowning.
The people tossing their African-American neighbors into that ocean have not noticed that there is a chain at their own ankles linking their fates to their victims' destiny. There is a surprise coming for racists everywhere. You will not want to miss it.
II. "It's got nothing to do with race."
The attorney defending the atrocity in Jena, Louisiana explained: "It's got nothing to with race." Any sane person aware of the events that I am about to describe knows that what happened in Jena has everything to do with race. I am not suggesting that this spokeperson seeking to defend the local prosecutor's actions was lying. It is much worse than that. I am sure that he was speaking sincerely, from his perspective, in detecting no racial issue at all. Ideally, any attorney uttering such absurd remarks will also be a coopted minority person willing to serve as a front-person for such evil.
I am experiencing harassment and deletion of letters as I write this essay. I wish the reader to have a clear sense of the level of harassment made possible by government technology that must be overcome to post these essays -- essays which scholars may find suggestive or instructive. All of this harassment is prohibited by law. Among the persons responsible for the harassment, I believe, are law enforcement officials from New Jersey. Each day I wonder whether I will be able to write tomorrow.
October 2, 2007 at 10:05 A.M. I am blocking:
http://view.atdmt.com/iview/msnnkhac001728x90...(NJ)http://view.atdmt.com/iview/msnnkhac00160x600...(NJ)http://view.atdmt.com/iview/msnnkhac00160x600...(NJ)(NJhttp://view.atdmt.com/iview/msnnkhac00160x600...(NJ)(NJhttp://view.atdmt.com/iview/msnnkhac00160x600...(NJ)...
On October 4, 2007 at 9:00 A.M. I was prevented from accessing this site and continuing to work on this essay. At 12:21 P.M. I managed to access the site and will resume work on this project. I am blocking:
http://view.atdmt.com/jaction/ko/msn_MSNBCHo...http://ad.doubleclick.net/adj/N3016.msnbc/B229...http://ad.doubleclick.net/adj/N3016.msnbc/B229...Onhttp://ad.doubleclick.net/adj/N3016.msnbc/B229...http://ad.doubleclick.net/adj/N3016.msnbc/B229...
October 31, 2007 at 8:59 A.M. my cable signal was blocked, denying me access to the Internet and preventing me from communicating. I am blocking:
http://view.atdmt.com/iview/msnnkhac001728x90xWBCBRB00110msn/direct;wi.728;hi.90/01...(NJ)
Harrassment and attempts to destroy this work are (and will be) content-based, emanating from New Jersey GOVERNMENT and judicial computers, despite the First Amendment to the U.S. Constitution and numerous criminal statutes prohibiting censorship. It is important to repeat this point constantly. You are witnessing public criminality by agents of the state that goes unpunished in America in 2009 and beyond. ("The Long Goodbye.")
Argument and criticism directed against racism and obvious corruption in U.S. society frightens powerful people. No wonder I have experienced torture. I am sure that I can expect more of the same, which is the best way for my adversaries -- who are enemies of the Constitution -- to prove much of what I am saying. (See again: "Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" and "What is it like to be tortured?")
October 18, 2007 at 9:30 A.M. new "errors" have appeared since my last review of this work, only yesterday. The authorities in New Jersey will remain, mostly, indifferent to these attacks, as they have been to others that I have suffered. I will continue to write. My examples include men and women such as Dr. Martin Luther King, Jr. and Malcolm X, Angela Davis and Nelson Mandela. ("New Jersey's Feces-Covered Supreme Court.")
Why is this essay especially infuriating? I am sure that you'll figure it out.
A. The Facts of the Jena 6 Case.
There are crucial facts which are mostly unreported in the mainstream press, facts excluded even from a short recent essay in The New Yorker, casting these events in a unique light given America's historical experience of racial conflict. Racism, politics, media -- especially racist ideas linked to sexuality -- become such a potent mix that mainstream journalists are still afraid of the topic. History is crucial when struggling against racism because history alone explains the otherwise inexplicable. Cornel West quotes Frederic Jameson: "History is what hurts." (See my much-attacked essay: "'History is What Hurts': An Encomium for James.")
In late August of 2006, Kenneth Purvis, a black student at the Jena High School in Jena, Louisiana, asked the principal whether he could sit under a tree in the school coutyard -- "a tree traditionally reserved for white students only." (ISR, p. 20.) The school principal answered that Purvis could sit wherever he liked because it is "a free country." The young man asked permission to sit under a tree -- usually "reserved" for white students -- and was then granted that permission by an adult in a position of authority. Mr. Purvis was "allowed" to sit under a tree and eat his lunch. The need to ask for permission is bizarre enough. The events that followed this conversation between teacher and student border on the surreal in 2006.
The next morning "three nooses hung from the tree." Take a look at the image of a lynching posted at the opening of this essay at MSN. A noose is a symbol with great power because of American experiences of lynchings and death penalties imposed, disproportionately, on African-Americans -- who were hung from trees in rural areas. We have immediately entered a new discourse (or semiotics) connecting this event to some of the most bloody and heated controversies in our national history, including the Civil War and the struggle for emancipation, a struggle which remains unfinished. See my "Manifesto for the Unfinished American Revolution" and John D. Caputo, Radical Hermeneutics (Bloomington: Indiana University Press, 1987) and James L. Marsh, Post-Cartesian Meditations (New York: Fordham University Press, 1988).
My philosophical stance is a combination of those two works. Now see "The Passion of Mumia Abu-Jamal." From an existential direction, see Frithjof Bergman, "Freedom and the Self," in On Being Free (Notre Dame: University of Notre Dame Press, 1977), pp. 79-105. (An "error" was just corrected in this last paragraph.) A Christian mapping of this emerging philosophical territory may be found in Quentin Lauer, S.J., A Reading of Hegel's Phenomenology of Spirit (New York: Fordham University Press, 1993).
Whatever else happens as a result of this event in Jena, to discuss or analyze this tragedy at all necessarily involves us in hermeneutics. See Richard Bernstein, "From Hermeneutics to Praxis," in Beyond Objectivism and Relativism (Pennsylvania: University of Pennsylvania Press, 1983), pp. 109-169 and John B. Thompson, Ideology and Modern Culture (California: Stanford University Press, 1990), pp. 28-67 ("It's got nothing to do with race!") and John Berger, Ways of Seeing (London: Penguin, 1972).
How does race affect the way that you "see" any person? Three white students admitted to "hanging" the nooses, claiming they intended nothing sinister. Notice how these white students -- who were the instigators of these events -- were treated leniently by the system. How did the system "see" those white students? LaSalle Parish school superintendent, Roy Breithaupt recommended to a disciplinary committee that a few days suspension "in-school" was sufficient punishment for a so-called "juvenile prank." (ISR, p. 20.)
I cannot imagine a non-hostile intended use of a noose in a racially divided context. A number of copycat incidents have occurred since this event, including a few emanating from mysterious sources intent upon embarassing New York or the perceived opponents of "how we've always done things." These white students should have been expelled from school. This became much more than a "juvenile prank" but something inevitably "sinister" in the archetypal language of symbols in which we live because "lynchings" are a horrible part of the collective subconscious for all Americans. See Carl Jung, Man and His Symbols (New York: Dell, 1961), pp. 1-95 ("Approaching the Unconscious").
The following day, during lunch hour, a small group of black students (mostly athletes, not all black students were "large") decided to sit under the same tree. This behavior was "expressive conduct" since it conveyed a political message. Thus, the black students' actions were protected by the Constitution, which does not stop at the schoolhouse gates. Board of Education v. Pico, 457 U.S. 853 (1983). Given some of his recent, allegedly "intemperate" remarks introducing the President of Iran at Columbia University, see also Lee C. Bollinger, "The Sedition of Free Speech," 81 Mich. Law Rev. 867, 870 (1982). (Italics and quotation marks are subject to removal on a regular basis as part of the "induced-frustration" techniques. I will make no corrections of such scarrings of this text.)
Moments later every black student at the school had joined the peacefully protesting students. Significantly, no white students were part of this protest. No whites -- not one -- saw the importance of the issue. I promise you that, if I were in the neighborhood at the time, there would have been at least one white-skinned person sitting with those so-called "scary, 'big' African-American athletes." African-Americans are much less than half of the total student population at the Jena High School. Sitting under a tree is less disruptive or rude than wearing a jacket that says "fuck the draft." However, the wearing of such a jacket was deemed protected expressive conduct. As Mr. Justice Harlan expressed it in Cohen v. California, 403 U.S. 15, 26 (1971):
"... expression conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well."
What is "scary" is not those African-American students, but the indifference to racism in the Jena community, which (obviously) is not a community. There are two Jenas. Two societies in a single city: one is white, the other is black. However, there must be only one America.
In response to the actions of African-American students, the school principal called an emergency assembly in the school auditorium. White students sat on one side, black students on the other -- this alone is a significant fact -- and every police officer in Jena attended the event, dressed in full uniform. District Attorney Reed Walters told the students that the "unrest" (Constitutionally protected speech by African-Americans was called "unrest") at the high school had to stop. Constitutionally protected conduct would not be tolerated by the authorities in Jena, just as my writings are not tolerated by New Jersey's legal/illegal authorities and their friends from Florida:
"... Turning his attention to the Black side of the auditorium, Walters said, 'I can be your best friend, or I can be your worst enemy.' Then he pulled a pen from his suit pocket and waved it with a dramatic flourish. 'I want you to understand,' he said, 'that with a stroke of my pen I can make your lives disappear!' ..." (ISR, pp. 20-21.)
Prosecutorial power is not a private force to be used by would-be tyrants. This prosecutorial responsibility is defined and circumscribed by Constitutional law and many statutes. This should be true even in New Jersey's legal ethics proceedings. Hence, such a statement, made by any prosecutor, is unethical and may be a criminal threat to minors. Mr. Walters' remarks, in that context, should subject him to ethical sanctions since -- unlike the students' conduct -- it is a threat and not a political statement. Walters uttered a threat to minors in school, where the state must act in locus prentis -- "in the place of the parents" of all students -- in order to ensure their physical and psychological safety. (A new "error" was just corrected in this sentence.)
No hostile comments were directed at the white students responsible for INITIATING the conflict. (Another "error" was inserted and corrected. January 10, 2008 at 9:49 A.M.)
October 3, 2007 at 9:35 A.M. many more phone calls from 1-800 numbers. More obstacles. Hacks:
http://view.atdmt.com/iview/msnnkhac00300x250 (NJ)
http://view.atdmt.com/iview/msnnkhac001728x90 (NJ)
Late on a Thursday night, "somebody" set fire to the central academic building at Jena High School. White authority figures "assumed" that black students were responsible. No one was charged with setting this fire. My suggestion is that this "behind-the-back" action fits the pattern of persons who "hang nooses from trees" when no one's looking, rather than students who protest (publicly) when they are outraged -- as they should have been and as I am today! -- by this blatant racism. ("What is it like to be tortured?")
A previously scheduled student dance at a social center called the "Fair Barn" was held. It was "a whites only affair." This "whites only" dance was not a source of concern to school authorities. The pervasiveness of separate cultures and facilities -- which has been described as America's "Apartheid" -- is now receiving U.S. Supreme Court blessings:
"On the final day of its 2006-07 term, the Supreme Court ruled 5-to-4 against racial integration programs in the Seattle and Louisville public school districts. At a time when American public schools are more segregated than they were in 1970, the decision is a major blow to the goal of integrated schools established in the Brown v. Board of Education decision more than fifty years ago, and threatens the integration efforts of hundreds of school districts."
Gillian Russom, "Back to 'Separate but Equal,'" in International Socialist Review, Sept-Oct., 2007, at p. 9 (emphasis added!).
There is a lot of "threatening" in response to criticisms. I will continue to criticize. Here is what I mean by America's "Holocaust":
"Nine hundred thousand of the nation's 2.2 million incarcerated individuals are Black, according to 'Uneven Justice: State Rates of Incarceration by Race and Ethnicity,' the July 2007 Sentencing Project report. If current trends continue, one in three Black males born today will wind up behind bars at some point in their lives. [Many others will be killed.] Among the more surprising statistics the report reveals is that racial disparities in sentencing are most egregious in the Northeastern and Midwestern states, not in the South. While the national Black-to-white ratio of incarceration is 5.6-to-1; in seven states: Wisconsin, Iowa, Vermont, New Jersey, Connecticut, and North and South Dakotas, the ratio exceeds 10-to-1. Iowa leads the pack, with an incarceration rate that is nearly 14-to-1 -- this in a state with a Black population that amounts to just 2.3 percent of the total." (emphasis added)
New Jersey is not far behind and is gaining on Iowa. Soon New Jersey will have the greatest proportional disparity in incarceration between African-Americans and whites. This statistic holds regardless of identical offenses committed. As of March, 2010 New Jersey may lead the nation in racist disparities in sentencing. Further dehumanization of African-Americans follows upon release from prison:
"State legislatures and the federal government have disqualified felons (mostly convicted of non-violent drug offenses) from voting as a further means of marginalizing and stigmatizing the incarcerated. Thirteen percent of Black men are disenfranchised nationally, while in Florida" -- remember those "chits"? -- "and Alabama a shocking 30 percent or more of Black men have had their right to vote taken away as a result of felony convictions." (Yes, they're "chits" all right.) I am told that the law has changed in Florida.
"Racism: Apartheid in the U.S.," in International Socialist Review, Sept-Oct., 2007, at p. 1 and http://www.isreview.org/ Dana Cloud, "The Fight for Academic Freedom in Changing Times," in International Socialist Review May-June, 2009, at p. 4. (Professors fired for politically controversial writings.)
B. The Intersection of Race and Sex.
Maybe you don't need those racist sheriffs on the courthouse steps to accomplish the same results. To deny a person the vote is to erase him or her as a human being in a democracy. Here is what I believe is missing from most accounts of this racist tragedy that makes the events in Jena all too understandable. To my knowledge, these facts were not raised or argued in court papers or appeals as of my first posting of this essay:
"After receiving a cell phone invitation from a white girl, Black athlete Robert Bailey and his friends Theo Shaw and Ryan Simmons asked the woman at the Fair Barn door if they could attend the dance. As soon as his [Robert Bailey's] foot crossed the threshold, a twenty-two year-old white man asked, 'Are you Robert Bailey?' Without waiting for an answer, the young man struck Robert full force on the jaw." (ISR, p. 21, with emphasis added.)
A white adult physically assaulted and struck -- these actions are not the same thing, legally speaking -- an African-American MINOR, as a result of an invitation extended by a young white woman to this African-American young man. All of America's most sacred taboos have now been violated in this incident. The white adult was not charged with any crime (only a misdemeanor) and he was not indicted. Other white students who joined in this attack against one African-American minor, kicking, punching and hitting Mr. Bailey, including smashing a beer bottle over his head, were not charged or disciplined at all. Not one of the white assailants was charged with a crime. Not one.
It is an insult to any intelligent person's understanding of life to suggest that these events had "nothing to do with race." However, a person may be so deluded by racist ideology as to believe (with absolute sincerity) that there is no racism in this incident. If a person has witnessed this sort of injustice, repeatedly -- usually committed by persons in authority -- who then (hypocritically) speak of ethics or legality, one becomes somewhat skeptical concerning the meaning of these words for such biased officials. ("New Jersey's 'Ethical' Legal System.")
Dozens of debaters and hackers joined in anonymous attacks against my former site "The Philosophy Cafe." Not one prevailed in any debate against me. I average 500 to 1,000 intrusion attempts per day against my computer on some weeks. Not one of those attackers will put a name to his or her efforts against me, even as I sign everything that I write. Ethics? New Jersey government computers have been identified as sources of criminal hacks into my computer. Requests for information continue to be ignored in violation of state and federal law by the authorities in Trenton. The same authorities seem uninterested in prosecuting crimes like rape, kidnapping, false imprisonment, assault, theft, conspiracies to violate civil rights, and much worse because, apparently, I happen to be the victim.
How can anyone in that notorious American jurisdiction which is symbolic of corruption and organized crime in the legal system -- namely, New Jersey -- label me "unethical" while denying me materials to which I am entitled under the U.S. Constitution? I suggest that it is New Jersey's court system and legal profession that are "unethical" and corrupt. You decide. ("Fidel Castro's 'History Will Absolve Me.'")
October 12, 2007 at 11:23 A.M. I am forced to run new scans and defend against computer attacks from New Jersey's legal officials. These people are sworn to uphold the Constitution. My security system has been damaged. A draft of a novel was defaced by hackers and had to be deleted. My private e-mails are read, erased, interfered with -- also by New Jersey hackers who have destroyed my ability to post images at my blog or profile at http://www.blogger.com/ .
I have experienced such harassment and much worse every day, for years, as I struggle to write my books. These crimes continue to go unpunished and to be repeated, every day, by the same officials who insist that I am "unethical." (See "Law and Ethics in The Soprano State" and "New Jersey is the Home of the Living Dead," and "How Censorship Works in America.")
The next day Robert saw one of the young whites who beat him. The white man retreated to his truck and brandished a "pistol-grip, pump action shotgun." This white man's action constitutes aggravated assault with an illegal weapon, illegal possession of an illegally altered firearm -- no minor or anyone can be licensed to carry such a weapon -- and yet, the white man, again, was not charged with any crime.
Robert and his friends wrestled the gun away from the white man and ran off with it because they didn't know what else to do with it. The three young African-Americans were charged with "assault and theft of less than $500." One wonders whether the illegal firearm was returned to the white young man, so that he might go on to shoot the next African-American person or anyone else that he sees.
The next day at school Justin Barker "got up in the face" of African-American Mychal Bell and admitted to being "good friends" with the whites responsible for the noose incident. Barker hollered insults at Bell as well as other African-Americans and "gave them the finger." That afternoon Barker was punched in the face, allegedly by Bell, several African-Americans joined in the scuffle. Barker sustained no serious injuries, attending a ring ceremony that evening, probably happy as a lark and proud of his battle injuries. No doubt he had been invited either to the dance or ceremony by the same young white woman who hoped to dance with Mr. Bailey.
By the end of the day, six African-American athletes: Mychal Bell, Carwin Jones, Bryant Ray Purvis, Jesse Beard, Theo Shaw, and Robert Bailey were arrested. District Attorney Reed Walters anounced that the six students were charged with -- this defies rational comprehension -- "attempted second degree murder and conspiracy to commit the same." The maximum sentence: "twenty-five to one hundred years, without parole." Young African-American men face up to 100 years in prison for a school scuffle initiated by whites. A young African-American man -- who probably was not there when the incident occurred -- will do time for crimes really committed by young whites. (Another new "error" was inserted in this text since last night.)
This legal travesty has everything to do with race. It is absurd and insane to pretend otherwise. Courts have, thus far, refrained from discussing racism associated with these events by engaging in analyses in a vacuum of pristine legal concepts abstracted from social contexts. Not discussions of applicable principles, which must be abstract, but the facts themselves are analyzed in abstraction from their cultural or historical context.
October 12, 2007 at 11:27 A.M. I am blocking:
http://view.atdmt.com/iview/msnnkhac001160x600...(NJ)
Efforts to correct and revise this work are still obstructed by much harassment, access to MSN obstructed, "errors" inserted in several essays, anonymous phone calls will be received on most days throughout the day, interference with television signals and worse is routine.
Parents of these students were reminded of the District Attorney's threat: "With a stroke of my pen, I can make your lives disappear." Refusing a plea, Mychal Bell went to trial. Bell's appointed defense counsel called no witnesses. Defendant is unlikely to have been able to spend, say, $100,000 on experts, investigators, or other preparation for trial. An all-white jury convicted Mychal on all counts, even though it appears, from the statements of witnesses, that Mychal Bell was not involved at all in the assault on Justin Barker.
A careful review of press accounts suggests that no self-defense argument was raised; no history of the events leading up to the alleged incident was offered; media accounts indicate that Mr. Bell was called "a n----." No disciplinary action was taken against the students uttering these epithets. Furthermore, the vast majority of witnesses "did not see who hit Justin Barker or identify any assailant." Despite the fact that it is admitted that there were numerous participants in this event, only one African-American student has been singled out for punishment. [ISR, p. 21.]
One witness who was not called is the school coach who, bravely, went out of his way to say that Mychal was not the student who struck Barker. Appointed Defense attorney Blaine Williams is an easy target. However, the situation is complicated. I am sure that there was pressure on Williams to "proceed" with the matter and "get rid of this case." No doubt his prospects would have "dimned" had he really defended this young man. I have no doubt that there was "behind the scenes" pressure put on the defense to allow the prosecution to make an "example of Mr. Bell." I suspect that it did not matter and the local judge did not care whether Mychal Bell actually committed the offense for which he may spend "twenty to one hundred years" of his life in prison. "Maybe he did something else." Judges have been known to make such statements.
"Don't they all look alike?" Such comments have been made in reaction to descriptions of these events. Summarizing an account of this tragic story, Alan Bean writes: "The Jena case is about a district attorney making good on his threat to destroy the lives of six talented young Black men." Now do you understand "black rage"? I do. I share it. Power intoxicates some people. Those six young men have become nearly one to two million or more incarcerated African-American men and women in America. The representation afforded to Mr. Bell is Clarence Darrow-like compared to what many African-American defendants can afford or receive. These same defendants walk into courtrooms with 2 and 1/2 strikes against them because of skin color, even if they have the best lawyers in the world. Prosecutors get many convictions.
The O.J. murder trial is not typical of the African-American experience with the U.S. legal system -- nor does it represent the level of attention afforded to most poor defendants' rights in American courtrooms. Most African-American defendants are convicted before they arrive in the courtroom. Defense counsel are subject to harassment and reprisals, often to criminal violations of their rights, and they are not uncommonly, mysteriously, subjected to ethics sanctions by the same authorities whom they defeat in legal proceedings of one sort or another, even as they are called "incompetent." For this work of targeting radicals, token minority group members are selected from the least honorable segments of their communities in order to lend a patina of legitimacy to the farce of "control" of legal power in the judicial system. ("New Jersey's Office of Attorney Ethics" and "Crimes Against Humanity in America.")
This Jena case is a grotesque legal farce worthy of New Jersey's tainted tribunals, not of any other courts in America's or any other country's legal system. This is and should be another international humiliation and disgrace for America's discredited legal system. No wonder they are trying to censor and silence me. This is painful truth which may not be spoken without consequences. So let us speak this truth whatever the consequences may be.
We are trashing our Constitution. Racist evil has taken over many areas of the American legal system. Judges do not see it. Maybe they don't want to see it. What should happen? The Louisiana attorney general should remove this case from Reed Walters (in fact, they should remove Reed Walters!), apply immediately to vacate the sentence entered against this young man, together with his new counsel, then ask for the same dismissals regarding all of these defendants -- new counsel should be someone like Morris Dees -- and also the state should, voluntarily, expunge these offenses from the records of all of the young African-Americans.
Misdemeanor charges should be brought against the whites responsible for these events, and felony weapons charges against the white teenager with an illegal "pump action shotgun" (hunting?) whom the authorities found no reason to charge with any offenses. That weapon will eventually be used to kill a cop or innocent bystander. These African-American young men and their families should sue the school, the principal who "authorized" the initial actions and failed to deal with the consequences, the town and state. None of them should settle for less than a million dollars. If you wish to help remedy this injustice, donate to support the legal defense fund:
Friends of Justice:
3415 Ainsworth Court, Arlington, TX 76016806-729-7889 or 817-457-0025 http://friendsofjustice.worldpress.com/
Mychal Bell has been behind bars since December of 2006 for a school scuffle in which he probably did not participate. I am told that he has now been released. To my knowledge Mr. Bell has not reeived an apology or compensation. Mr. Bell has asked to receive letters from supporters. I am sure that letters will be fowarded to him at his new location or through his attorney, whose name is available in court filings. I have nothing to do with any of these funds.
Mychal Bell, Inmate, A-DormLaSalle Correctional Center, 15976 Highway 165, Olla, LA 71465-4801.
$20 from a few thousand of us can help. We can all afford that much. I will provide some comments on the legal issues and absurdities that are obvious. Also, some of the philosophical and political implications of this nightmare -- which is worthy of Franz Kafka -- deserve special mention and analysis. Finally, a concluding thought on race and sexuality in the American psyche and the role of law in dealing with this issue.
III. Philosophy, Politics, and Law.
A. Philosophy.
It may be useful to begin with a dialogue concerning philosophical foundations between Angela Davis (Hegelian-Marxist-Critical Theorist) and Cornel West (Christian-Existentialist-Phenomenologist-Pragmatist). All of this is very relevant to the events in Jena, even if it does not seem that way at first. I know that this section will be difficult. It is important that theoretical foundations be examined. Furthermore, I am sure that the difficulty with theory experienced by many people is one result of the racism that I am criticizing.
Why does U.S. society not want young African-Americans to become philosophically adept? The answer should be obvious.
Davis and West are participants in America's current debate on postmodernist themes in contemporary political and legal culture. Both of these philosophers have been developing ideas during recent years that, explicitly or not, contribute to a developing American "hermeneutics of freedom" which is highly relevant to the African-American struggle. Both of these philosophers are adept at Continental philosophical argumentation and also display the logical sophistication associated with analytical styles of theorizing. Cornel West and Angela Davis can do the intellectual multitasking thing. They are among our very best philosophers at this moment in America's history. We need them to "comprehend our time in thought."
If you are a young African-American and do not know these two thinkers' works, then ask yourself: Why do you not know the ideas of Angela Davis and Cornel West? How many African-American athletes' names do you know? How many African-American entertainers do you know?
Professor Davis has earned the attention not only of feminists and political radicals, but also of students of Continental thought all over the world for her engaged work. Students (like me) detect the influence of mentors such as Herbert Marcuse and Theodor Adorno in the development of her mature philosophy. I also sense the impact of Sartre, Foucault and Malcolm X on Davis. Professor West has taken a "dual aspect" (Du Bois, Dewey, Rorty, Davidson) approach to his own philosophical work by developing a popular cultural persona (both Davis and West are frequent t.v. speakers and c-span lecturers), while preserving a scholarly presence in collections on abstruse and technical issues in academic philosophy. West and Davis have experienced racism in their lives. (For the benefit of morons who will raise the issue, Adorno's first name is spelled without a final "e.") These are two of the philosophers bringing theory to public discussions of our foundational ideas and politics.
I describe both African-American thinkers as "postmodernists" to the extent that they have recognized the unique imperatives of a media-saturated culture. Both of these American intellectuals feel compelled to bring philosophically sophisticated discussions to the electronic public square. Angela Davis and Cornel West must be included in any list of the most interesting and important American social theorists today. This is entirely apart from race. However, African-American identity makes both philosophers even more important to America's self-understanding -- and to the world's understanding of the American racial tragedy. (Yet another "error" has been inserted and corrected in this paragraph.) On postmodern political ideas, see Thomas Doherty, "Postmodernism: An Introduction," in Postmodernism: A Reader (New York: Columbia University Press, 1991), pp. 1-31.
Let's begin with Cornel West's famous identification of the partners in the contemporary political dialectic. After Professor West provides the historical context in terms of the so-called "intellectual project of the West," he identifies the opposition between Nietzsche and Hegel, Habermas against Foucault, Gadamer against Deleuze which establishes our intellectual moment. That tension between idea-clusters is present in the minds of West and Davis. This dialectic is everywhere in American jurisprudence today -- even for judges and others who have never heard of these thinkers. West's dialogue with Davis captures the dance of these ideas in America's psyche. We will need to add a few more thinkers to the American "mix" -- Judith Butler, Richard Rorty, perhaps Drucilla Cornell and Seyla Benhabib, Roberto Unger and Richard Delgado.
On the political scene the paradigmatic postmodernist politician is Bill Clinton ("where's my sax and shades?"), using aesthetics as a bridge to different people. The classic Habermasian-Rawlsian defender of the "unfinished project of modern reason" is Hillary Clinton ("we can make things better!") or Al Gore ("we need reason in public life") and Vice President Joseph Biden ("Did you think about possible retribution against American servicepeople for the torture of detainees?"). Senator (the word "President" is regularly changed to "Senator" by hackers) Barack Obama ("we must hope once more!") is somewhere between the two Clintons, politically speaking:
"It is clear that 'modern' philosophy begins in the seventeenth century, well before the Enlightenment, with the turn toward the subject and the new authority, the institutionalization of scientific reason. What we call postmodern philosophy today is precisely about questioning the foundational authority of science. [In the realm of human meanings.] This trajectory is very different from that of modernist literary practices, which in turn is quite different from that of architecture: the former, to simplify, attacks reason in the name of myth, whereas the latter valorizes reason together with technique and form." (West)
This tension between scientific reason and myth, logos (Hillary) and mythos (Bill), is transformed into our postmodernist-cultural fusion of the two (Obama/Biden):
"Note, too, the disjunction here between cultural postmodernism and postmodern politics, for Americans are politically always already in a condition of postmodern fragmentation and heterogeneity in a way that Europeans have not been; and the revolt against the center by those constituted as marginals is an oppositional difference in a way that poststructuralist notions of difference are not. These American attacks on universality in the name of difference, these 'postmodern' issues of Otherness (Afro-American, Native Americans, women, gays) are in fact an implicit critique of certain French postmodern discourses about Otherness that really serve to hide and conceal the power of the voices and movements of Others." (West)
Pay attention and get your highlighters:
"Because Deleuze (and Levinas) was the first to think through the notion of difference [Derrida]independent of Hegelian ideas of opposition, and that was the start of the radical anti-Hegelianism that has characterized French intellectual life in the last decades. This position -- the trashing of totality, the trashing of mediation, the valorization of difference outside the subject-object opposition, the decentering of the subject -- all of these features we now associate with postmodernism and poststructuralism go back to Deleuze's resurrection of Nietzsche against Hegel. Foucault, already assuming this Deleuzian critique, was the first important French intellectual who could circumvent, rather than confront, Hegel, which is why he says that we live in a 'Deleuzian age.' To live in a Deleuzian age is to live in an anti-Hegelian age so that one doesn't have to come to terms with Lukacs, Adorno or any other Hegelian-Marxists."
Cornel West, The Cornel West Reader, pp. 280-284.
Notice that the French relation to Hegel is like a passionate love affair. Whenever the French Kantian-Hegelians (Paul Ricouer, Jean-Luc Marion) are out of fashion, there is a turn to Nietzsche or Marx (Michel Foucault, Jacques Derrida). Reason and totalization or "assimilation" (Modernity) versus skepticism about reason and totalities, celebration of difference and alienation (Postmodernism).
Angela Davis says: "You will have to come to terms with me." Professor Davis refocuses a humanistic or Hegelian-Marxism on the realities of power and wealth within the fictions in which we live which are increasingly living us, like the American legal system. Power is now in a position not simply to define reality -- hence, those African-American young men in Jena are labeled as "criminals" and their white counterparts are "model citizens" -- but also to create the realities that they will then define in convenient ways. "Constructing as we perceive" realities makes us all Kant's unruly children, even if we are postmoderns denying the Enlightenment project. (Jacques Derrida) Specters of Marx. Race? What is race? It is one thing for Reed Walters and something different for you. ("Is Western Philosophy Racist?") Michael Frayn, The Human Touch (New York: Henry Holt, 2006), p. 229. (Davis-Derrida-Unger-Butler is a powerful combination in the American intellectual context.) George Lukacs, "Reification and the Consciousness of the Proletariat," in History and Class Consciousness (Cambridge: MIT Press, 1985), pp. 83-222. (The frozen abstractions and images which we may become in late capitalist society.)
Postmodernist theories "seem to recognize the centrality of the observer." Accordingly, "perception [racism?] is the permanent invention of the world." Peter Dews and others have detected a return to Kantian ideas as a third movement in post-68' French philosophy, leading to a new popularity for thinkers such as Paul Ricoeur and Emmanuel Levinas. America is still catching up in this debate, except for thinkers like West and Davis, who keep one eye on European developments and another on Anglo-American discussions as well as theoretical developments in other parts of the world. Peter Dews, Logics of Disintegration (New York & London: Verso, 1987), pp. xii-xiii.
This is a new, "protean plasticity" in our political and moral lives (Roberto Unger) calling for renewals of American revolutionary thought in the light of our media-illusion factory. Hence, in disagreement with Baudrillard, West and Davis reject "fatal strategies" (Baudrillard) and choose struggle: political revolution for Davis in alliance with Nelson Mandela and (in her estimation) Ernesto "Che" Guevara as well as Malcolm X; salvific mission for West, aligning Professor West with thinkers in Latin America such as Father Gustavo Gutierrez and Harvard Law Professor Roberto Mangabeira Unger, also Nelson Mandela's struggle against Apartheid and Dr. King's example in the American context. Alternatively, this is to fuse Robert Kennedy, William Sloan Coffin and Cesar Chavez into a political-social gospel. ("'The Prisoner': A Review of the AMC t.v. Series.")
I stand with and between those two American philosophers. So do all of the politicians I have named in this essay, both Clintons and Senator Barack Obama, Al Gore, Joe Biden and numerous politicians in both parties. African-Americans can also look to Rudy Giuliani's Strong Constitutionalism (don't let them tell you otherwise) and John McCain's humane internationalism expressed in opposition to all forms of torture.
On the Republican side, the best options for African-Americans (in my opinion) are Rudy Giuliani -- despite his p.r. problems early in his Mayoralty -- because Rudy, as I say, is an unshakable Constitutionalist, also John McCain because he has experienced incarceration and torture. I do not care who likes or approves of my values. I trust that this makes my political position clear. If you can persuade Mr. Giuliani that a position is unconstitutional, he will reject it immediately. I am sure that in a "candid" conversation, Giuliani would voice criticisms of this Jena incident that would be legally devastating. Giuliani is an excellent lawyer with experience in handling criminal cases and the same may be said of Fred Thompson.
I wish to call attention to Professor Davis' writings on prisons and women's incarceration, also to Davis' application of Marx and Engels to domestic housework from a working class perspective. I can relate to this. (See "Foucault, Rose, Davis and the Meanings of Prisons.") Here is Professor Davis "explaining" (term of art) truths to power:
"Fascism is a process, its growth and development are cancerous in nature. While today, the threat of fascism [racism] may be primarily restricted to the use of the law-enforcement-judicial-penal apparatus to arrest the overt and latent revolutionary trends among nationally oppressed people, tomorrow it may attack the working class en masse and eventually even moderate democrats. [Mumia Abu-Jamal.] Even in this period, however, the cancer has already commenced to spread. In addition to the prison army of thousands and thousands of nameles Third World victims of political revenge, there are increasing numbers of white political prisoners ... and women who have involved themselves on all levels of revolutionary activity."
This paragraph was written by Professor Davis in 1971. The statement is more timely today. Timelessness of thought is always a sign that one has encountered an important philosopher who, nevertheless, also speaks to her moment in history. This is to see the Jena 6' s real crime as "resistance to racism combined with a demand for dignity and respect as human beings." The true crime of these young African-Americans is that "they will not bend." They will not surrender their demand for respect and insistence on self-defined humanity or dignity. Neither will I nor any woman that I love. (See "Charles Taylor on Recognition.") Professor Davis says:
"No one should fail to take heed of Georgi Dimitrov's warning: 'Whoever does not fight the growth of fascism at these preparatory stages is not in a position to prevent the victory of fascism, but, on the contrary, facilitates that victory.' ... " (Substitute the word "racism" for "fascism.")
I wonder why the spacing of paragraphs was affected so severely in this essay at blogger and there have been so many problems in writing it? I am sure that I am prevented from posting images or returning to my MSN group because of the political content of the images that I have posted and my ideas. Please bear in mind the Jena 6 situation as you read these next words:
"The only effective guarantee against the victory of fascism is an indivisible mass movement which refuses to conduct business as usual as long as repression rages on." (Words written in Marin County jail by Angela Davis.) "Political Prisoners, Prisons and Black Liberation," in If They Come in the Morning (New York: New American Library, 1971), pp. 42-43, updated in Davis' defense of wages for domestic labor: "The Approaching Obsolescence of Housework: A Working Class Perspective," in Angela Y. Davis, Women, Race, and Class (New York: Vintage, 1983), p. 222. See also, Angela Y. Davis, Are Prisons Obsolete? (New York: Seven Stories, 2003), pp. 40-59 (notice the quotation from Michel Foucault that opens the chapter in Davis' book, then see my essay "Thoughts of a Domestic Revolutionary").
We cannot respond to the Jena 6 situation as just another stupid decision from America's courts. We must see that the experience of those young men is inseparable from the Scottsboro Boys and countless other racist travesties in the U.S. legal system that, collectively, create a hermeneutic challenge for all of us. We are forced to juxtapose perceptions against constructed realities. We must interpret this event, radically, in terms of what it reveals about our society -- not only the racism of officials in Jena, but (more importantly) the INDIFFERENCE to this evil on the part of mainstream media and most people choosing to ignore this hideous malignancy. This event and these young lives merit more than two minutes on the evening news, on one night, between sports and weather report. I cannot accept that U.S. media silence accompanying these public crimes of civil rights violations that you are witnessing is accidental. I am told that media coverage outside of America is growing by the day.
You cannot eliminate the truths that I am articulating in this essay by inserting "errors" in the text or further threatening me. Such tactics are expressions of fear and an unwillingness to stare this reality in the face in order to deal with the problem intelligently. We must resolve this matter, soon. ("I am Sean Bell.")
"This has nothing to do with race" becomes a self-fulfilling prophecy, if we allow ourselves to be deluded by such talk. These tragic events will then be poured into the mold of a priori racist stereotypes, making all young African-Americans into hoodlums who deserve incarceration, an identity that will be internalized by these young men themselves and others in society. That is why a fair trial for young African-Americans is almost impossible in America. It is when the victims of racism -- racism is nothing but a lethal/legal fiction based on philosophical concepts given horrying form by any of us who remain silent -- believes and accepts racism that he or she is dead, intellectually and morally dead, through the abandonment of his or her humanity.
When you believe -- as a young African-American -- that all you can be is a "gangster," then you have lost to racism. At that point, you have already been destroyed as a free person. When you accept, as a young woman of any color, that all you are is your attractiveness to men, then you have been destroyed by sexism no matter how physically beautiful you are. ("Not One More Victim.")
Philosophical slavery is claiming more young lives every day. You will not silence those of us who refuse to live with this evil one day longer by further threatening or censoring us. ("What a man's gotta do.") African-Americans must no longer be taught that they should want to be "gangsters." Exploited young women must not believe that all they are is a piece of "ass." I have heard such notions expressed by people who are much too young to have developed these ideas themselves. Young urban men must not be manipulated into violence by a culture that intends their self-destruction. The same is true for rural whites being shipped off to Afghanistan and Iraq.
August 27, 2009 at 7:58 P.M. earlier revisions of this essay were deleted, obstructions made it impossible for me to complete a reading of this essay, frustrations over the past week have prevented me from writing and my computer appears to have been damaged, once again. 26 security risks, illegal spyware, and other problems have surfaced today. I am writing from a public computer. I regret that Right-wing Cubanazos and their paid-off politicians make this violation of civil rights possible. I will focus on Mr. Leyner and Ms. Poritz, together with their unusual sexual habits in future essays. ("Deborah T. Poritz and Conduct Unbecoming to the Judiciary in New Jersey.")
These prescribed roles are coming to them -- victims of social injustices -- from media and advertising. Television is especially guilty as are forms of popular music which are not controlled by African-American young people. Please understand that this is not facile or academic idealism. It is a "real" constructivist-postmodernism that sees "reality" in America today as a battle over universals -- universals like "human," "person," "law," "beauty," and "art" among others. ("Is Western Philosophy Racist?") This battle is being fought with images, sounds, words. Why had you never heard of, say, Ben Carson (world famous neurologist and pediatric surgeon), Cornel West (philosopher), Leontyne Price (world famous soprano, prima donna), Angela Davis (philosopher, revolutionary), Charles Ogletree (Harvard Law Professor), and so many others? Coincidence? They are all African-Americans. (Another inserted "error" corrected.)
If you teach young people that they should wish to be gangsters, then how can you criticize or punish them when they fulfill those expectations? Hypocrisy? If you teach young women that they are reducible to their physical attractiveness to men, then why charge a young woman -- and not a governor who is her customer -- for prostitution? That young woman is fulfilling society's expectations of her by "selling" her "sexuality." Take a look at the magazine covers this month.
Gangsters is what power wishes young African-Americans to become. American culture is transforming young women -- especially those who are poor or minority girls -- into prostitutes, often teenage prostitutes. ("We don't know from nothing" and "Judges Protects Child Molesters in Bayonne, New Jersey.")
Sexist cultures cannot avoid becoming pimps. The average age in appearance of sexually desirable women in America media has fallen to about eighteen years of age. To seek to look eighteen years-old when you are thirty is a doomed and tragic undertaking. Brittany Murphy?
I see the victims of racism sleeping on city streets, begging for change, broken and wounded (like me), but sometimes (also like me) still fighting this evil. To live in a racist society is to dwell in a city of ghosts and zombies. Racism's victims are persons whose humanity is nearly lost through denigration, insults, destruction of creative capacity and spiritual possibilities, disconfirmed in their best identities, denied even the right to express an opinion or thought. How many Nobel prizes do they have? ("'History is What Hurts': An Encomium for James" and "Censorship and Cruelty in New Jersey" and "How Censorship Works in America.")
Are you participating in the tortures directed against me? What have you become? Are you "bored" by racism? Do you not care about those millions who will be killed by racism? Are you too busy worrying about your "success"? What kind of "success" is that? ("Stuart Rabner and Conduct Unbecoming to the Judiciary in New Jersey" and "Neil M. Cohen, Esq. and Conduct Unbecoming to the Legislature in New Jersey.")
B. "The fire next time."
West and Davis are shouting at YOU -- powerful white Americans, especially, and the entire world -- that this social reality, racism, is nothing but a construct that hurts people, including you, that is claiming more lives and types of people every day. If you want to think of a movie at this point, take another look at the Matrix trilogy interpreted as an allegory against racism. Racism is "the wool that has been pulled over your eyes." Now for James Baldwin's fiery sermon:
"The America of my experience has worshipped and nourished violence for as long as I have been on earth. The violence was being perpetrated mainly against black men, though -- the strangers; and so it didn't count. [Otherness] But, if a society permits one portion of its citizenry to be menaced or destroyed, then, very soon, no one in that society is safe. The forces thus released in the people can never be held in check, but must run their devouring course, destroying the very foundations which it was imagined they would save."
Notice James Baldwin's literary genius becoming philosophical. James Badwin is self-educated. Baldwin did not attend college. Gore Vidal responded to a comment on this point by saying: "We are all self-educated." Baldwin concludes:
"But we are unbelievably ignorant concerning what goes on in our country -- to say nothing of what goes on in the rest of the world -- and appear to have become too timid to question what we are told. Our failure to trust one another deeply enough to be able to talk to one another has become so great that people with these questions in their hearts do not speak them; our opulence is so pervasive that people who are afraid to lose whatever they think they have persuade themselves of the truth of a lie, and help disseminate it; and God help the innocent here, that man or woman who simply wants to love or be loved. ..."
The Price of the Ticket, p. 387-388.
A torturer once said to me: "Most people want to be told what to believe."
C. Politics.
Most people want to be told what to believe. An entire media-cultural system is designed to instill in young people -- whose shocking ignorance is not surprising any longer -- that we live in the best of all possible worlds; that racism is a marginal problem in America, mostly resolved by the legal system; that African-Americans are more often imprisoned because they commit more crimes, not because more crimes are committed against them. The models of identity and the picture of the world on the news is supplemented by obstacles to organization and true community. The clever young person sits in front of the t.v. alone or with family members (another "error" was just inserted and corrected) and gets the one message that matters drilled into his or her head:
" ... the message, which says, the only value in life is to have more commodities or live like that rich middle class family you're watching and to have nice values like harmony and Americanism. [What kind of Americanism?] That's all there is in life. You may think in your own head there's got to be something more in life than this, but since you're watching the tube alone you assume, I must be crazy, because that's all that's going on over there. And since there is no organization permitted -- that's absolutely crucial -- you never have a way of finding out whether you are crazy, and you just assume it, because it's the natural thing to assume."
Noam Chomsky, Media Control: The Spectacular Achievements of Propaganda (New York: Seven Stories Press, 1997), p. 22. ("'The Stepford Wives': A Movie Review" and "'Revolutionary Road': A Movie Review.")
This essay and my blogs, again, have been relegated to media silence in America. My books are suppressed. The true number of visitors to these blogs and other personal sites is not known. (25,000?) I cannot access MSN groups. No images can be posted by me. Waves of attacks against these writings makes it necessary for me to make the same corrections many times. My silence (or collapse) is the silencing of billions who are not heard in America. We must struggle against this silencing:
"Antonio Gramsci is associated with the word hegemony -- that is what makes him a crucial figure in 20th century Marxist theory. Hegemony is very close to our concept of ideology. It is the notion of the exercise of domination through political legitimacy, rather than through force. [Law school.] Hegemony is the notion of the acquisition of the consent of the governed. It is the notion that, in order to understand the modern industrial state, one has to understand its ideological power to generate consent from the masses through the creation of institutions, and organizations, and social patterns that appear legitimate to the masses of the people."
Duncan Kennedy, "Antonio Gramsci and the Legal System," in ALSA Forum, Vol 1, No. 1 (1979), p. 32.
A white person in America will not imagine that he or she is also being incarcerated with the Jena 6. America's core tension between freedom and equality is implicated in this dilemma. We are equal only to the extent that we are all free to think and "become the persons we are." If some of us are not free, then none of us are equal or really free, because some of us are only partly free, or semi-persons. (Yet another "error" found and corrected since yesterday.)
Freedom is essential to what we mean by a person. Thus, the entire American Constitutional structure collapses in lies as government power spreads in subtle and ubiquitous ways at the instant when we give in to racism. For the effects of these daily defacements of my writings and other "experiences" with New Jersey law, see again: "How to execute the innocent in New Jersey" and "Driving While Black (DWB) in New Jersey."
Racism transforms Constitutionally protected expressive conduct into legal cause for state action and threats against African-Americans. The denial of rights is the denial of humanity. Crimes committed against a minority attorney, for example, are rationalized by labeling him "unethical" for engaging in behavior generated, deliberately, by those very crimes committed against him. The same crimes are then covered up by the system. All of this takes place, secretly, like most things that matter to power in America, in violation of the Constitution. Cranking up the slander machine against me is irrelevant to what I say. It is also not very intimidating at this point in my life.
It is a crime to obstruct freedom of speech and communication, also to conspire to violate civil rights. It is another crime to cover up such a conspiracy. You are witnesses to the commission of such crimes against me, on a daily basis, by public officials in an American jurisdiction. Why is all of this ignored by prosecutors, judges, and politicians as well as journalists? Well, Cornel West points out:
"... they [most judges and politicians] tend to view people in egoist and rationalist terms according to which they are motivated primarily by self-interest and self-preservation. Needless to say, this is partly true about most of us. Yet, people, especially degraded and oppressed people, are also hungry for identity, meaning, and self-worth."
Race Matters, p. 13. ("Richard Posner on Voluntary Action and Criminal Responsibility.")
"There must be some sinister purpose to that guy's conduct. Money is probably involved. Racism or ethnic disdain has nothing to do with it." I am sure that, like Reed Walters, people saying such things in Trenton -- as they commit their crimes against me -- are sincere. Now compare: Charles Taylor, "The Politics of Recognition," in Multiculturalism, at pp. 25-73. At this point, nihilism comes into the equation as the final ingredient in the torture and "attempted" murder of an entire people:
"Nihilism is not overcome by arguments or analysis; it is tamed by love and care. Any disease of the soul [racism] must be conquered by a turning of one's soul. ...."
Race Matters, at p. 19. ("Nihilists in Disneyworld" and "Roberto Unger's Revolutionary Legal Theory.")
Ideally, as I say, it may be possible to persuade foolish or naive African-Americans and Latinos to cooperate in the destruction of their own people, or even themselves. How do we turn our souls? We must take a final civilizing step in America's racial journey. We must recognize and embrace the shared pain of slavery. We must recognize, officially and nationally, the legacy of slavery and the continuing agony of racism, no longer trying to cover-up this tragedy or Holocaust with propaganda imagery and entertainment distractions. We will find the legacy of racism and slavery -- increasingly in terms that include poor whites as part of the despised category -- within America's prisons.
This is the point of reparations. We are a suffering (but still hopeful) people. Our pain is being projected out towards others in Iraq and elsewhere -- like Cuba, maybe -- whom we are demonizing and torturing, murdering in the hundreds of thousands, even millions. This will only enhance the pain we feel. More suffering for Americans and other poor people is never "good" foreign policy.
We must not pretend that these great crimes in Jena never happened. The great crimes to which I refer have nothing to do with the actions of those African-American young men. The crimes must be placed at the doorstep of a viciously cruel, unjust, self-contradictory legal system, betraying its own priceless ideals because of the poison of racism, producing social as well as economic injustice. Justice is not a game. Justice is not a commodity. Justice is not a luxury. Justice is what you have a right to expect from the most expensive and hypocritical legal system in the world. Right now, you are not receiving justice. What you're getting is more like the opposite of justice. Am I "unethical," Mr. Rabner? Or is a legal system that rapes and tortures persons, secretly, in violation of its own organic documents "unethical"? ("What is it like to be tortured?")
Threatening me with violence will not change my mind on the Cuba issue, or any other. Requiring me to revise this essay forty or fifty times, forcing me to make identical corrections countless times, preventing me from posting this essay at Critique -- all of this helps to prove my point and illustrates the deformations of sadism, which are so visibly present in the administration of law and government in New Jersey. How many civilian casualities, including children, must now be counted in Iraq? 500,000 dead children over the past ten years? Abu Ghraib? Guantanamo?
The cancer of racism is eating away our vital organs and destroying what is left of our democracy and values -- which is less of what the Constitution intends every day of the Bush/Cheney years. No wonder this essay and essayist are under attack. See Tariq Ali, Street Fighting Years: An Autobiography of the Sixties (London: Verso, 2005), pp. 5-6. Several hundred thousand civilian deaths in Iraq by 2003, the number may have doubled by now. The kicker is that a hasty withdrawal at this juncture may produce more deaths in the millions.
We must love our African-American neighbors enough to accept the gift of their pain by making it our own with a Jewish-Christian-Islamic and secular affirmation that we are one people in mortal agony over the genocidal legal policies that are destroying millions of our children every year. James Baldwin explains:
"What it comes to, finally, is that the nation has spent a large part of its time and energy looking away from one of the principal facts of its life. This failure to look reality in the face diminishes a person, and it can only be described as unmanly. [Yes, Baldwin is being ironic.] And in exactly the same way that the South imagines that it 'knows' the Negro, the North imagines that it has set him free. Both camps are deluded. Human freedom is a complex difficult -- and private -- thing. If we can liken life, for a moment, to a furnace, then freedom is the fire which burns away illusion. [This is the hermeneutics of freedom of which this essay is an example.] Any honest examination of the national life proves how far we are from the standard of human freedom with which we began. [As an ideal.] The recovery of this standard demands of everyone who loves this country a hard look at himself, for the greatest achievements must begin somewhere, and they always begin with the person. If we are not capable of this examination, we may yet become one of the most distinguished and monumental failures in the history of nations."
"Nobody Knows My Name," in The Price of the Ticket, at p. 193.
D. Law.
How can we express all of this in law? Harvard Law Professor Duncan Kennedy writes:
"I argue that ideology influences adjudication, by structuring legal discourse and through strategic choice in interpretation. I argue that the denial of the presence of ideology in adjudication leads to political results different from those that would occur in a situation of transparency. [No more secrecy or lies from public officials complaining that others lie.] And I suggest that it would be in some sense 'better' to determine our fates without alienating our powers."
A Critique of Adjudication (Cambridge: Harvard University Press, 1997), p. 19.
The absurdity of the criminal charges against the Jena defendant, Mr. Bell -- "attempted second degree murder and conspiracy to commit the same" -- cannot be allowed to pass without criticism. Second degree murder is defined, normally, as "criminally reckless homicide." Such a crime is not something that one "attempts" by formulating an intent ahead of time, then taking some action preparatory towards effectuating the intent:
"Oh, next week, on Friday, at around 3:00 P.M., I am planning to be 'spontaneously' reckless and to create a danger to the life of a person, who just happens to be standing by, and I will further plan for that person who happens to be standing by to be X." (An "error" was inserted and corrected in this paragraph since my previous review.)
This charge is, literally, absurd and incoherent on its face. Conspiring with others to commit such an offense is even more impossible. If I had access to a law library, I would make this point in terms of Louisiana law, specifically, then I would trace the same principles to Napoleon's code civile and twentieth century French criminal law jurisprudence. Louisiana's French cultural roots are a source of pride. Those legal roots are ancient enough to find their origins in Roman law, where these criminal law concepts were first formulated.
To suggest that the Jena prosecutor deliberately manipulated the grand jury process to obtain a charge that he knew was unconstitutional and ludicrous in order to try this defendant as an adult, is to suggest that the prosecutor acted in bad faith and is subject to ethics charges as well as criminal sanctions. None of this will happen, of course, but it should. Prosecutors get away with things that result in disbarment for defense counsel.
I am aware that "rights talk" is controversial among minority and radical legal scholars. I refuse to give up on natural law or the discourse of rights. I do not see rights as individualizing and atomistic, nor incompatible with communitarian values. I believe that we need to expand and think creatively about rights theory. Roberto Unger's concepts of "destabilization rights" and "immunity rights" are very important. The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1986), pp. 84-85, 98-99 and 53-56. Even more, we need what Unger calls, "solidarity rights." Those Jena defendants have a call not simply on our concern, but are also "entitled" to our collective solidarity in their struggle:
"Informed by those ideas, doctrine might develop a series of distinguishing criteria to characterize situations suitable for the application of a more limited solidarity constraint, one that requires each party to give some force to the other party's interests, though less than to its own. [This analysis is developed in the civil context.] ... "
The CLS Movement, p. 83 and Roberto Mangabeira Unger & Cornel West, The Future of American Progressivism (Boston: Beacon Press, 2002), pp. 23-33. On the controversy concerning so-called "rights talk": Patricia Williams, The Alchemy of Race and Rights (Cambridge: Harvard University Press, 1991) and Richard Delgado, "The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?," 22 Harv. C.R.-C.L. L. Rev. 301 (1987) and finally, Kimberly Crenshaw, "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law," 101 Harv. L. Rev. 1331 (1988). (Ms. Krenshaw's article is probably more timely today than when it was written.)
The communitarian notions developed earlier in this essay -- the need for love and acceptance of shared pain -- may be fitted to a legal doctrinal structure of solidarity and communitarian rights, calling for a revolution in American Constitutional theory and not violence in the streets, violence which will certainly result soon without recognition of a people's legitimate aspirations. Especially promising, for progressives, is the area of "equal protection" doctrine under the Fourteenth Amendment balancing the "liberty" interest in that same Amendment against a radicalized egalitarianism. See chapter 7 in Derrick Bell's And We Are Not Saved, pp. 162-177.
"Having referred to norms and principles of 'equal treatment,' we can sharpen understanding of the equal protection idea by distinguishing between equality of treatment and treatment as an equal. The right to equal treatment holds with respect to a limited set of interests -- like voting -- and demands that every person have the same access to these interests as every other person. ... The right to treatment as an equal holds with regard to all interests and requires government to treat each individual with equal regard as a person." (Respect?)
Laurence Tribe, American Constitutional Law, pp. 1437-1438. Compare Ronald Dworkin, "Social Sciences and Constitutional Rights: The Consequences of Uncertainty," 8 J. Law & Educ. 3, 10-11 (1977).
For a communitarian perspective focused on the unique needs of the African-American community -- as a class -- to equal protection of the laws, see Owen Fiss, "Groups and the Equal Protection Clause," 5 Phil. & Pub. Aff. 107, 148-56 (1976). In an excellent symposium that I remember reading at volume 62 of the University of Texas Law Review, a long skeptical article by Professor Michael E. Tigar on rights theory stands out: "The Right of Property and the Law of Theft," in 62 Texas L. Rev. 1443 (1984).
One of the best discussions of principles underlying American "equal protection" doctrine was in an article some years ago in the Harvard Law Review by Professor Charles Ogletree. Unfortunately, I am unable to supply the citation to the exact issue of the Harvard Law Review in which the article appeared. As I recall, it was Professor Ogletree's "Foreword," to the Supreme Court's decisions with his analysis for that term. I am relying on a recollection of that essay that I read about twenty years ago. Professor Ogletree must be high on any list of candidates for future Supreme Court vacancies. (I expect the italics in titles to be altered on a regular basis.)
IV. Conclusion.
A communal right to treatment of each person as equal to all others, persons whose Constitutional and moral worth must not be discarded for the sake of any social "goal" identified by others, secretly, is long overdue to the African-American community and many others. After Katrina, African-Americans are visibly placed in a category of expendable "sub-humans," along with a few other subjects (like me). Charges of racism to which Mr. Bush objected are, I believe, clearly warranted in light of the failures after Katrina.
The Constitution is all that is needed to resolve the tragedy in Jena, to free those young men from slavery, finally, more than 140 years after the Civil War -- which was only another battle in America's unfinished revolution. Judge Sonia Sotomayor, if confirmed, will be a U.S. Supreme Court justice in the tradition of Thurgood Marshall and William J. Brennan, who will not be moved when fundamental rights are threatened. Please read Harold J. Berman's introduction to Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983), pp. 1-41. The final struggle for legal freedom has been a long time coming.
The American Revolution is being fought today, primarily, in a deeply flawed and yet magnificent legal system where heroism and cowardice are daily realities. The responsibility for this tragedy in Jena, as well as for its resolution, rests first and foremost with lawyers and judges. This responsibility is a matter of solemn moral obligation. It is not being discharged today. This failure of U.S. lawyers diminishes all of us. Torturing, threatening, insulting critics -- or destroying their writings -- will not solve the problems of Louisiana, New Jersey, or America. It is no answer to our sufferings to suggest that we pretend that nothing happened. I will close with some words from the writings of Peter Gable and with a question for America's lawyers and judges:
"Developed over many centuries as the cultural centerpiece of the individualist worldview that finally defeated its predecessors in the liberal revolutions of two hundred years ago, [Modernity,] the legal system that we have inherited has become both a creator and legitimator of the social alienation that envelops us. Instead of resolving conflicts in a manner designed to create community by fostering empathy, compassion, and healing, the current adversary system fosters mistrust, antagonism, and mutual deprecation. It sacrifices the longing for community on the altar of protecting the rights of the isolated individual. And this current system is constantly being reproduced through the collective work of an enormous army of elite professionals -- lawyers, judges, and law professors -- who are trained to believe unquestioningly in the system's ethical validity."
That belief is no longer sustainable, not even by its ablest proponents and defenders who must recognize that they are, increasingly, living a lie because of racism by both failing to protect individual rights and frustrating communitarian aspirations. How can you be a part of daily censorship and cruelty, Ms. Milgram? How does a Jew become Eichman, Mr. Rabner? How does a Jew become Mengele, Terry Tuchin? ("An Open Letter to My Torturers in New Jersey, Terry Tuchin and Diana Lisa Riccioli.")
"... As a society we appear to have conditioned ourselves to believe that we are not to have any fundamental new ideas that would be a next step, that would continue in our time the spiritual and political development of society to which that earlier generation made an important contribution in their time." (More "errors" inserted and corrected.)
Finally,"Our legal culture must be transformed in a direction that forsters empathy, compassion, and mutual understanding" -- a willingness to accept the pain of those who suffer from racism or comparable evils, like sexism -- "and sees the longing for connection to each other, and the healing of the alienation that divides us, to be as important to the cultural aspirations of law, and as important to the achievement of social justice, as is the protection of individual rights."
Peter Gabel, "The Law Not as Rules but as a Meaning-Creating Public Culture," in The Bank Teller and Other Essays on the Politics of Meaning (San Francisco: Acada Books, 2000), pp. 137-138. (Gabel is outlining a theory of the ultimate "solidarity right" -- authentic community.)
Has law become the guilty bystander or even complicit in the evil of racism in America?
Labels: "We Have The Wolf by the Ears."
posted by Juan Galis-Menendez @ 10:41 AM
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