Essentially Contested America

President Obama gave a wonderfully supportive and challenging message to schoolchildren yesterday.  That there was ever a debate over whether students should see the speech in school is silly and tells us quite a bit about the divides in this country.  However, the debate regarding whether the speech should have been shown on the first day of school – some schools did not return to classes until yesterday – is more interesting.  Some, including many in Henrico County, Virginia, where I live, argued that the first day of school is too hectic to be interrupted with a message of support from the President of the United States.  If the argument is serious, rather than an attempt to avoid dealing with the merits of the speech, it is troubling.  Teachers, parents and children are required to expend a significant amount of effort before the first day of school ostensibly to make sure that everyone will be ready to learn on the first day of school.   Though the first day of school is always hectic, so are late-opening snow days and many other days.  The task for schools was to get schoolchildren together for 15-20 minutes to watch a message of encouragement from our First Role Model.  If that is a monumental or impossible task for school officials, I shudder to think what would happen if a real emergency occurred on the first day of school.   Similarly, I am surprised that school administrators would readily admit their logistical limitations to parents given that some school districts – such as Henrico County’s next door neighbor, the City of Richmond – did not find the presentation of the speech terribly onerous, with some schools even hosting dignitaries who encouraged students in the same vein as President Obama.

Two weeks ago, Professor Henry Louis Gates, Jr. got a lesson on race in America, and as a result, so have the rest of us.  A prominent Harvard scholar on race in America, Professor Gates told NY Times Columnist Charles Blow that he has generally lived in “a cocoon of racial tolerance, enlightenment and reason.”  However, on the day that he returned from a trip to China and had trouble opening his front door, he became what Blow called “a member of the Club” – the 66% of Black men in America who told the New York Times that they felt they had been stopped by the police because of their race.  We don’t know whether Officer Crowley treated the professor differently because he was Black.  Officer Crowley might not even know.  Crowley teaches other officers how to avoid racial profiling, but can he avoid his own unsconcious feelings about race?  What we do know is that Professor Gates’ belief that he was treated differently because he was Black was entirely rational, given the history of race in America and in the Boston area.  Professor Gates writes about this history in his scholarship, and he teaches about it in his classes.  On that summer day, the academic became real for Professor Gates.

I vividly remember the day that the academic became real for me.  In law school in another New England city, I learned a lot about race in America from my classes and my African American classmates.  The spring of my second year, a white female and Black male friend and I looked to rent an apartment together.  My white female friend had made the appointment to see the apartment, but when we showed up with our Black friend, we were told the apartment was no longer available.  We went to lunch together and stared at each other blankly, asking, “Did that really happen?  Are we victims of discrimination?” The same thing happened at another apartment building that afternoon.  We later confirmed with friends that lived at both buildings that apartments were still available in both buildings.  We’ll never know for sure whether we were treated differently because my roommate was Black.  What we did know was that we had  been taught another lesson on race in America.

My experience, like that of Professor Gates and Officer Crowley, is typical of how people’s experiences are “colored” by racial differences.  Often, we don’t know whether our actions, or those of other people, are motivated by racial prejudice.  The lesson we can learn from Professor Gates is that race always matters – it is unrealistic to assume that it doesn’t.  What President Obama is trying to do today with his “beer summit” is what we all need to do – recognize that race influences all of us, talk about our differences, and try to understand each other.  When we can do that, then we will have indeed learned a positive lesson about race in America.

By now most have heard of the arrest for disorderly of Harvard scholar Dr. Henry Louis Gates at his home in Cambridge and the subsequent dropping of charges.  The police report notes that the police officer involved was investigating a call of a possible break-in phoned in by one of Gates’ neighbors who saw Gates and the person who drove him home trying to get into the house by shouldering open a jammed door.  The supposed break-in was called in around12:44 pm in broad daylight.  The report, the substance of which Gates disputes, suggests that when the officer arrived at the house, Gates initially refused to identify himself.  In addition, Gates supposedly repeatedly yelled at the officer and called him racist.  However, the report also notes that Gates did provide identification, but was arrested when he continued to yell at the officer after the officer left the house.  Even if one believes the police report, which is difficult to do, it is unclear why the police officer was unable to diffuse the situation.  Police officers must deal with incredibly stressful situations quite often and this would seem to be one of the least stressful of those stressful situations, dealing with a 58-year-old man who walks with a cane and had a bronchial infection that he says rendered him unable to yell at anyone and who may or may not have been upset about being investigated for breaking into his own house.  It is difficult to imagine that the following comment occurring some time during the encounter would not have diffused the situation, given that even the report noted that Gates did cooperate enough to provide identification:  “Officer: Sir, I am just investigating a possible break-in of this residence.  I just needed to make sure that you are safe and that your neighbor was mistaken about the possible break-in. Are you sure that no one broke into the house and is hiding inside?  Sorry for the inconvenience.  Here is my name and badge number if you need to follow up.  Please have a nice day.”  Rather than attempt to diffuse the situation, it appears that the officer took umbrage at whatever Dr. Gates said to him or how Dr. Gates said it to him.  Apparently, annoying a police officer in Cambridge appears to be sufficient for some Cambridge police officers to arrest a person.  That may be the way it is, but it does not appear to be good policing.  Whether it is racialized policing is a different more complicated matter.

The attacks on our country on September 11, 2001 dramatically alerted our nation to the threat of international terrorism.  Our lawmakers responded by authorizing attacks on the country that had harbored the 9/11 terrorists, and anti-immigration measures to keep the terrorists out.  The threat of international terrorism is real, but recent events remind us that Muslim extremists from across the globe are not the only terrorist threat facing us.  Before there was 9/11, there was Oklahoma City and Timothy McVeigh, and we still are plagued by right wing extremists in this country.  Yesterday, a vocal anti-Semite and Holocaust denier, James Von Brunn, killed a security guard at the Holocaust Memorial.  As bad as the incident was, it could have been much worse.  Crowds of people were inside the museum, some waiting to attend the premier of a new play about anti-Semitism and racism, Anna and Emmett.  NPR reports that among those expected to attend was Attorney General Eric Holder.  Two weeks ago, anti-abortion activist Scott Roeder murdered George Tiller, a Wichita doctor who provided late abortions.  Now Roeder is warning of more violence, claiming that there are “many other similar events planned around the country.”  Other anti-abortion activists say this is wrong, but do they really know?

Both Von Brunn and Roeder are well known for their outspoken extermist views.  Moreover, these events are particularly disturbing given that gun sales have surged since Barack Obama was elected president.  What are our lawmakers doing about it?  Nothing.  Instead of acting to protect us, Congress recently authorized the possession of concealed weapons in national parks.  It’s about time that we started taking the treat of domestic terrorism seriously, before more innocent people are hurt.

Given the years of virulent racism that minorities in our country have faced throughout our history, it is a bit shocking to see right wingers like Newt Gingrich and Rush Limbaugh accuse Supreme Court nominee Sonia Sotomayor, the first Hispanic ever nominated to that Court, of being a “racist,” based solely on one remark that she made in a speech seven years ago.   On this subject, I highly recommend Charles Blow’s recent New York Times editorial, “Rogues, Robes and Racists.”   As Blow notes, there is no evidence in Sotomayor’s life, legal career or judicial record of her ever acting like a racist.  Blow contrasts Sotomayor’s record with that of Chief Justice John Roberts, who was reported by Newsday magazine to have made racist and sexist jokes while working in the White House for the President Reagan.  What is most significant is that Roberts didn’t just talk the talk, he has spent his entire career walking the walk, working to roll back the civil rights gains of women and minorities from the 1960s and 1970s.  As Bobby notes below, quoting Jeffrey Toobin, Roberts has continued this pattern as Chief Justice, ruling against criminal defendants, non-white civil rights plaintiffs (he ruled in favor of the white plaintiff challenging the use of race to avoid the re-segregation of Seattle public schools) and plaintiffs suing corporations.  Does that mean Roberts is a racist?  Not necessarily, but as Blow observes, there is a heck of a lot more evidence of his racism than there is of Sotomayor’s.

Blow’s editorial is so powerful and eloquent that I really don’t have much to add.  What I can add, however, is a bit of context to the speech that has gotten Sotomayor into so much hot water.  In a speech during a symposium on Latino judges, hosted by La Raza Law Journal, Judge Sotomayor said that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”  Why would Sotomayor say such a thing?  It is clear from reading her speech that Sotomayor was asked to comment on how her experience as a Latina woman colors her perception of issues on the bench.  This subject is understandable given the Critical Race Theory roots of the La Raza publication that hosted Sotomayor’s speech.  At the risk of over-simplification, one theme of critical race theory is questioning the assumption that law is neutral and un-biased, and examining the ways in which our laws reinforce the existing power structures in our society, including the privileging of the concerns of white people, men, and the rich.

I have no idea what Sotomayor thinks about critical race theory, but it is clear from her speech that she is responding to this CRT critique of the law.  In her speech, Sotomayor describes her personal experiences as a “NewYorkrican” and acknowledges that these experiences have an effect on how she sees the world.  But in a much less quoted remark at the end of the speech, Sotomayor goes on to observe, “I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”  That’s the most we can hope for from any judge, and Sotomayor’s judicial record reflects the fact that she has been pretty successful at it.

In his majority opinion striking down two local school districts’ attempts to use race as one factor in school assignments in order to reduce racial stratification in the public schools, Justice Roberts famously noted, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  I agree with Roberts’ sentiment, but I also agree with the Critical Race Theorist view that race discrimination is more complicated than Roberts’ remarks suggests – that we are all affected by unconscious bias.  Given the choice between Roberts’ overly simplistic remark and Sotomayor’s sophisticated evaluation, and the choice between their records on racial issues, I prefer Sotomayor.

A beloved tradition from the World War II era, Victory Gardens are being revived throughout the country.  This time, people are not planting those gardens to support victory over an enemy abroad, but instead to support our neighbors at home.  In the Twenty-First Century, victory gardens are not about beating Nazis, but instead about defeating hunger and malnutrition.  While the more affluent among us have been celebrating locally grown foods in recent years, far too many people without financial resources are unable to access fresh fruit and vegetables from any source.  Inner city neighborhoods have few grocery stores, and residents of those neighborhoods often lack the money to travel to shop.  All those beautiful farmer’s markets sprouting up throughout the country have not been sufficiently accessible to the poor.  That’s the reason for the new victory gardens – community or individual gardeners who pledge to give their produce to food banks and provide fresh, locally grown food for those who currently are unable to afford it.

This week, I had the pleasure of attending the plant pick up of community gardens in Toledo at the greenhouse operated by a great local organization, Toledo Grows.  The mission of Toledo Grows is to promote community gardens and gardening as a productive activity for inner city youth.  Many of these community gardens have pledged to join the Victory Garden movement.

On the plant pick up day, the greenhouse was mobbed by people of all different ages, races, ethnicities and occupations.  The one thing those people had in common was the love of gardening and food, and the interest in working with members of their community to feed people.  That experience reminded me of how diverse gardeners are, from opera fans to Nascar fans, from conservative Christians to leftwing hippies.  Victory gardens are an ideologically neutral means for us to help other people, and to be civic minded while doing something that we love.

It is absolutely impossible to understand the decline of American cities and the marginalization of the inner city without appreciating how the performance of major institutions such as the police, the educational system, and the political structure are evaluated. When an institutional goal, say, reducing murders is set by key authorities involved there are two general approaches to achieving this goal. First, good police work, job programs, better schools, and so forth might do the trick. Second, reclassify the homicides from murders to manslaughter. Watch Bill Moyers’ interview with David Simon, the executive producer and co-founder of HBO’s The Wire, here to learn how institutions “cheat the stats.”

Many conservative pundits condemn those who criticize–even fairly and justly–the United States as “the blame America first crowd.” Not only is this charge generally groundless, but the charge raises an important question about the soul of America.  Are we a nation dedicated to freedom, equality, and community or are we instead a nation dedicated to our superiority over other nations and other peoples?  Texas Republican representative Betty Brown provides a window into the soul of those who brook no criticism of the United States and when there is a clash of values, customs, or religions, these xenophobes insist that the interests of Americans–justified or not–trump the interests of people of other nationalities. A new low in this regard has recently been achieved. Representative Brown quite politely and with apparent sincerely requested that those Chinese Americans, whose first names are difficult for Americans to read, adopt more easily recognizable names. This American conceit pervades many American attitudes toward politically incorrect racial, ethnic, and national  groups. Watch the video and decide for yourself.

This year, Barack Obama’s historic candidacy for president has inspired a lot of people to think about the impact of race in our society.  The pundits are asking, “Is out country ready for a Black president?”  I believe that enough people are ready for a Black president for Obama to succeed.  But that is not because racism has been eradicated in our society.  I have a white friend who claims that race is no longer relevant in the Twenty-First Century – the real divide is along class lines.  I have a Black friend who counters that race is “everything.”  And then there is Zanesville, Ohio.

Picture this:  a map of two neighborhoods, side by side.  One neighborhood is all white, the other is virtually all Black.  Although the neighborhoods are adjacent, water service extends to only one of them – the white neighborhood.  White families have full water service, improved water pressure, lawn sprinklers, and even Jacuzzis.  Their Black neighbors don’w even have wells because chemicals has contaminated the ground around their homes.  So, they have to get water from cisterns – big tubs in their backyards that collect rain water, along with bugs and sometimes dead animals.  All of the water that they use is in these cisterns – water that they drink, use to clean, take baths in, and wash clothes.  Despite repeatedly asking local officials to extend water to their homes, these Black residents live without running water for fifty years longer than their white neighbors.

Is this a hypothetical in my Constitutional Law class?  Is this a story from the bad old days of Jim Crow before Brown v. Board of Education?  No, it’s a true story of how Jerry Kennedy and his neighbors in the Coal Run neighborhood, just outside of Zanesville, Ohio, lived until just about two years ago.  This summer, they won a $10.8 million jury verdict to compensate them for their years of deprivation.

Thanks to Jennifer Klar and the other attorneys at Relman and Dane and their co-counsel, sixty-seven people in the Coal Run neighborhood finally achieved justice and ended the outrageous conditions that they had lived in for five decades as a result of racial discrimination.  But the story of Coal Run is sobering.  How could their white neighbors tolerate this injustice?  How could the city and county officials continue to deny this basic service to the people of Coal Run for fifty years?  Zanesville should be a wake-up call for those who think that race discrimination is over in this country.

Zanesville is located in the Appalachian region of southerwest Ohio, between Columbus, Ohio and Wheeling, West Virginia.  No wonder Obama is having trouble pulling ahead in Ohio, despite the fact that our state’s economy is in such dire shape, and Ted Strickland, a white Democratic candidate for governor won in a landslide just two years ago.  It’s no mystery why Obama is having trouble in Ohio.  Just ask the folks in Coal Run.

Obama may still win in Ohio, and if he does, he will win the national election.  Even if Obama loses Ohio, he may win.  And is Obama does win, that will send a powerful message about race to the folks in Coal Run, and to all of us. 

Racism is deep-seeded, and it is passed down from generation to generation.  It would be foolish to deny it.  We can’t get beyond racism until we confront this truth.  However, if the children of Zanesville grow up under a Black president, maybe they won’t assume that Blacks are inferior, as some of their parents apparently did.  This is also the truth, and it is cause for hope.

“The essence of the liberal outlook lies not in what opinions are held, but in how
they are held: Instead of being held dogmatically, they are held tentatively,
and with a consciousness that new evidence may at any moment lead to their
abandonment.”–Bertrand Russell

An alternative way to express this “liberal outlook” is captured by a distinction between dedicated discourse and deliberative discourse. The former accepts certain canonical forms of reasoning and language and eschews, at least formally, the strategy that change should (or even can) come about because new “evidence” leads to abandoning the dedicated values of the society. Dedicated reasoning and language, though not formally closed, renders inter-discourse reasoning virtually impossible. That’s one reason ideological wars occur. One or both of the ideological factions refuse to credit the other guy’s dedicated language worthy of reconstruction and ratiocinative compromise. Deliberative communities seek fallibilistic change through a non-Enlightenment conception of practical reason. According to this pragmatist conception of practical reason, members of deliberative communities jointly attempt to formulate political truth independently of any a priori or non-deliberative standards of the right and the good. By contrast, dedicated communities seek what they regard as the truth about reality and insist upon adhering to those cultural and social givens or icons of their communities which express this truth.

The distinction between deliberative and dedicated communities is relevant to the debate between liberalism and communitarianism. Rather than viewing this debate as one between those who value community and those who do not, it is better understood as a controversy over the appropriate kind of community. Typically, liberals seek deliberative communities, while communitarians seek dedicated ones. However, a person committed to deliberativism as the method of social change can also regard deliberativism as defining a certain conception of community and the conception of the person suitable for membership. Consequently, in this view, almost every serious person is a communitarian, but some people are deliberative communitarians while others are dedicated communitarians. Communitarian democracy is an attempt to describe a deliberative community. Communitarian democrats seek freedom, equality, and solidarity for the purpose of devising joint solutions to social problems. In order to achieve this, communitarian democrats devise a civic discourse shorn of dedicated features, which values each citizen equally as a member of the community. This has implication for at least three conflicts in political and constitutional affairs. Since no irreducibly dedicated premises are possible in this civic discourse, dedicated arguments are impossible without translation into deliberative terms. This implies a particular conclusion to the debate about religion in the public square, namely, that dedicated religious discourse must be translated into its deliberative counterpart, if it has one, before it is suitable for use in public justification. Similarly, concerning multicultural conceptions of the right and the good, communitarian democrats can accept only those multicultural conceptions translatable into deliberative discourse. And, finally, communitarian democrats must guard against constitutional atrophy, the process by which initially deliberative structures become dedicated through lack of vigilance, criticism, and challenge. In a communitarian democracy, atrophied deliberative structures may be just as inefficient, unfair, and resistant to change as some decidedly dedicated structures and must be similarly avoided.

Many of the contemporary domestic and international conflicts can be explained by just how deliberative and dedicated the parties’ beliefs and values are. No one has purely dedicated beliefs and values and no one has purely deliberative ones. There always exists some combination of these forms of reasoning in any doctrine, discourse, or perspective. Just what the appropriate ratio of dedicated to deliberative discourse is appropriate is difficult to specify in advance, and most likely should be assessed and implemented pragmatically.
First Photograph: Bertrand Russell
Second Photograph: John Dewey