That post spawned a substantial comment thread, in which Peter Donis wrote:
"Apologists for slavery" is not the same as "racism". Slavery is an action, that is outlawed now; it's perfectly reasonable to say that apologists for an action that is outlawed should not be tolerated. But racism is not illegal, and it's not an action, it's a belief: the law can't control what people believe, and expecting it to is unreasonable. So is not tolerating it, as a belief: in any free country, people are going to have all kinds of offensive beliefs. That's the price we pay for having a free country.
*Actions* that violate people's rights are a different matter: the Lousiana judge's action was clearly wrong and he should be at the very least censured for it. But not because it was "racist": because it clearly denied a citizen the equal protection of the laws, which is guaranteed to him by the Fourteenth Amendment. That's all that should need to be said.
Yes, it's true that racism is a belief and not an action. But it is a belief that often results in action, and the actions it produces usually end up depriving dark-skinned people of their rights. I think that's a serious problem. But as Peter correctly observes, you can't regulate belief in a free society. So what to do?
Simply relying on the law is not enough. The 14th amendment has been in force for nearly 150 years, and in that time we've had Jim Crow, Brown v. Board, Loving v. Virginia, the Civil Rights Act (two of them!), and the Voting Rights Act. We've had George Wallace proudly proclaiming "segregation now, segregation tomorrow, segregation forever." We've had lynchings and the rise of the KKK. We've had Emmet Till and Rodney King and Terence Crutcher and Michael Brown and Sandra Bland and Freddie Gray and Tamir Rice and Trayvon Martin.
Seriously, do you believe that Rene Boucher would have been charged with a misdemeanor for an assault on a U.S. senator resulting in six broken ribs if he had not been a rich white dude?
The law is not enough. And it cannot be enough in a free society. In a free society, people are free to be bigots. Racists are correct when they say that the road to tyranny is paved with government mandates. But if the law is not enough, what else is there?
Shame. The most effective way to eliminate a destructive behavior from society is not to make it illegal, it is to make it unfashionable. We wrote alchohol prohibition into the Constitution and it was an unmitigated disaster (a lesson Jeff Sessions seems to have forgotten). But tobacco use has plummeted 60% in 50 years despite remaining legal. Smoking is just not cool any more.
The way to eliminate racism is to paint racists as pathetic losers. And the best way to do that is to teach history.
I think it's really important to remember that racism was not always a dirty word in America. The Confederacy did not defend slavery as a necessary evil, nor even out of economic necessity or expediency, but rather as a straightforward logical consequence of natural law and God's will:
[T]he servitude of the African race, as existing in these States, is mutually beneficial to both bond and free, and is abundantly authorized and justified by the experience of mankind, and the revealed will of the Almighty Creator, as recognized by all Christian nations...
That's from Texas's articles of secession. Read it again. Let the words sear themselves indelibly into your soul: "mutually beneficial to both bond and free." They genuinely believed that they were doing the niggers a favor by enslaving them. They genuinely believed (and could cite scripture to prove it) that they were doing God's will.
It sounds shocking today, but it was the majority view in the Confederacy. And if you think 1860 is ancient history, George Wallace was calling for "segregation now, segregation tomorrow, segregation forever" in 1963, and continued running on an openly racist platform for fifteen more years before he finally repented in 1979 (by which time it was far too late to salvage his reputation as the quintessential racist of the 20th century).
The view that blacks are so inherently inferior to whites that they can legitimately be held as property did not magically go away after the Civil War. Most of the people who believed it before the war still believed it after. And because reconstruction was botched, in the name of state's rights and opposing federal "tyranny", these bigots taught their children, and they taught their children, and so the idea has promulgated through the generations. It has mutated and attenuated; no one openly calls for the restoration of slavery any more. It is no longer fashionable to openly call for segregation (though that doesn't stop everyone). But the idea that blacks (and hispanics and Muslims) are inferior to whites lives on.
Donald Trump and Steve Bannon and John Kelly and all of the other Confederate apologists are the intellectual and spiritual heirs of proud defenders of slavery. Whether they realize it or not, whether they consciously advocate it or not, they are advancing a point of view that is irredeemably rooted in the once-popular idea that black people should be the property of white people, and that this is the natural order of things and the will of God.
It is my firm belief that when presented with these facts, people will reject racism, that it cannot survive in the bright light of this truth. Like a vampire, racism depends on cloaking itself in darkness and obfuscation. It depends on denial. It depends on distancing itself from the past (even as it longs for a return to the past) because the truth is that it is born of slavery and inextricably linked to slavery. And thank God almighty I don't have to try to convince people any more than slavery is evil (though 150 years ago I surely would have had to).
To paraphrase MLK (who was paraphrasing Theodore Parker), the arc of history is long but it bends towards justice. Sooner or later the racists will lose, so if you want to be on the right side of history, if you want a seat at the cool kids table, if you want to be able to stand up proudly in front of your grandchildren, you must reject racism and racists. You must shun them. You must shame them. You must call them out when they try to hide behind the "honor of the Confederacy" and "states rights." You must shine the light in the dark places where this evil has festered for the last 150 years. And then, when the racists have been driven from the public square and the halls of power, maybe at long last we can raise a generation that is finally free of this scourge.
> The way to eliminate racism is to paint racists as pathetic losers. And the best way to do that is to teach history.
I don't actually disagree with this, but I would like to offer an alternative (or perhaps a complementary--there's no reason both could not be pursued) strategy.
You quoted what I posted about the Louisiana judge. My point was to focus on *what* he did wrong--he denied a citizen the equal protection of the laws--not *why* he did that wrong thing. For one thing, we can't look inside his head and know for sure why he did it. He might not know for sure himself why he did it. He might have had multiple reasons. He might have been having a bad day on top of everything else. But none of that matters if we focus on what he did wrong: he's a judge, it's his duty to uphold equal protection of the laws for everyone, and he failed to do that duty.
But let's assume for the sake of argument that he did do it primarily out of racism--or, to be more precise, out of a genuine belief on his part that black people are not entitled to the same legal protections and rights as white people. If that is actually true, then he should not be a judge. But to focus on the words "black" and "white" in that statement is counterproductive, because it implies that it is those words that are doing the important work--rather than the really important words, "are not entitled to the same legal protections and rights".
For example, suppose a black judge were to deny equal protection to a white defendant. Would that be permissible? Of course not. But that's not really a good example because it still depends on the words "black" and "white", even though it reverses their polarity, so to speak. Then suppose a male judge were to deny equap protection to a female defendant--but then we're just substituting "sexism" for "racism" and we still have the same problem, that we're focusing on the words "male" and "female" as if they were doing the important work. (And of course the same would be true if we hypothesized that a female judge denied equal protection to a male defendant.) And we could go on and on, talking about straight judges denying equal protection to gay defendants, gay judges denying equal protection to straight defendants, etc., etc., etc.
My point is that *all* of this is misguided, because, as I said above, it focuses on an irrelevant side issue--the respective group identities of the judge and the defendant--instead of focusing on the real issue: that *every* citizen is supposed to get the equal protection of the laws, and any judge that fails to do that for *any* reason is failing in their duty. And the only way to really fix that problem is to paint as pathetic losers *people who deny equal rights and equal protection*, regardless of what motivates them, particularly if it's their job to uphold them. The Louisiana judge should not be a judge, and should be painted as a pathetic loser, because he failed to do his job. Whether he failed because he's a racist or because he just had a bad day is beside the point.
Did you just say "all lives matter" the long-winded way?
The motivation (that in these cases may spring from the identities of the judge and defendant) matters if you hope to stamp out these complex problems at their root. _Perhaps_ what you say would be viable, if it was just judges and the accused, and not law enforcement, and corrections officers, and school officials, and lenders, and employers, and society.
The OP says "simply relying on the law is not enough", with examples. It seems that your contention is that it is. Where are the examples?
> The OP says "simply relying on the law is not enough", with examples. It seems that your contention is that it is.
I don't know how you got that out of my post. I said we should paint people as pathetic losers for denying equal protection and rights to everyone. That's not a legal strategy, it's a social strategy, just like the one Ron proposed.
> For one thing, we can't look inside his head and know for sure why he did it.
Oh, come on, peter, you can't possibly be that dim -- and neither could the judge. He didn't just "deny a citizen equal protection", he denied a *black* citizen equal protection by intentionally mis-construing a figure of speech that is characteristic of black culture. And he could not possibly have been unaware of this. A lawyer dog? Seriously? Give me a fucking break.
Your comment just goes down the same rabbit hole I described. To focus on the fact that the judge misconstrued a figure of speech of black culture invites the question: would it have been OK if it was a black judge misconstruing a figure of speech of white culture? And if your answer is "of course not", then what's the point of focusing on it at all, instead of on the substance--that a judge denied a defendant's rights?
(And in my post I included the case where the misconstruing is intentional, out of genuine racism. Yes, it's hard to see how this judge's action wasn't intentional. That doesn't change what I said above at all. Would it have been OK if the judge misconstrued the figure of speech by mistake? He still would have been denying a defendant's rights, and he's supposed to know better.)
> if your answer is "of course not"
And it is (of course).
> then what's the point of focusing on it at all, instead of on the substance--that a judge denied a defendant's rights?
Because of the extreme historical power imbalance between blacks and whites which persists to this day. The denial of rights was just a symptom of this much larger systemic problem.
> Would it have been OK if the judge misconstrued the figure of speech by mistake?
It doesn't matter if it was a mistake or malicious intent. This particular "mistake" was only *possible* because black culture has been marginalized. It's entirely possible that Justice Crichton has never in his life heard the word "dawg" and had no idea what it means. That is no small part of the problem.
I could leave it there, but I feel the need to point out two additional things:
First, it is hard to imagine how a judge acting in good faith could conclude that a defendant was talking about a "lawyer dog" and not feel the need to inquire if perhaps he was missing something.
Second (and this is truly ironic) he didn't even *need* to use the ridiculous lawyer-dog argument. All he had to do was point out that the request was phrased as a question: "Why don't you get me a lawyer?" That makes it plausibly ambiguous whether the defendant was asking for a lawyer or asking a rhetorical question.
The only thing worse than a racist in power is a *stupid* racist in power.
> Because of the extreme historical power imbalance between blacks and whites which persists to this day. The denial of rights was just a symptom of this much larger systemic problem.
So to you, denial of rights is only worth talking about as a "symptom"?
Anyway, I think you have it backwards. The denial of rights is the fundamental problem. The power imbalance is the symptom.
No offense (I'm a big fan) but this feels to me like a naive and overly optimistic attitude. Educating and shaming people may have the effect of causing them to suppress their racist tendencies, but racism, I believe, is an extension of tribalism which is a deeply rooted behavior. In times of troubles, people turn to their tribes for security and their suppressed racism will surface as a result.
While I don't have any easy answers, I feel like the rise of social media, which could have potentially been used to help overcome tribalism is instead having the opposite effect as it stokes peoples fears. I suspect we'll find a solution to this problem in the coming years out of necessity.
The more general issue is addressing why people feel unsatisfied and have the need to cling to their tribe. Out-of-control capitalism along with the ensuing financial inequality and rampant consumerism is probably one of the biggest factors in my opinion. I don't think a person who feels content and secure is likely to hold a negative attitude towards others though that may also be a naive and overly optimistic attitude.
> It's entirely possible that Justice Crichton has never in his life heard the word "dawg" and had no idea what it means. That is no small part of the problem.
No, it isn't, it's irrelevant. Having a defendant represented by a lawyer should be the default. It shouldn't be something the defendant has to ask for.
> he didn't even *need* to use the ridiculous lawyer-dog argument. All he had to do was point out that the request was phrased as a question: "Why don't you get me a lawyer?" That makes it plausibly ambiguous whether the defendant was asking for a lawyer or asking a rhetorical question.
No, it's just another form of irrelevant. See above.
(Personally, I would actually think worse of a judge who used the specious "rhetorical question" argument than I do of the actual judge in this case. The actual judge might simply have been stupid, as you say. A judge who uses the "rhetorical question" argument doesn't have that excuse.)
> Having a defendant represented by a lawyer should be the default.
That would be great, but that's not the world we live in.
> That would be great, but that's not the world we live in.
I'm confused about your position. Are you saying it's OK for judges to just ignore the law and the rules of criminal procedure and the rights of the defendant, as long as they don't do so in a racist manner?
Furthermore, in this case it's actually the law that the defendant getting a lawyer is the default. Here is the Louisiana Code of Criminal Procedure, Article 511:
"The accused in every instance has the right to defend himself and to have the assistance of counsel. His counsel shall have free access to him, in private, at reasonable hours."
It doesn't say anything about the defendant having to ask for counsel. So the judge is ignorant of the actual law of his own state--what I said *is* the world we live in, at least in Louisiana, the judge just doesn't know it.
> Are you saying it's OK for judges to just ignore the law and the rules of criminal procedure and the rights of the defendant, as long as they don't do so in a racist manner?
No, of course not. But you apparently are unaware of the case law:
> you apparently are unaware of the case law
What? The Supreme Court has interpreted a fundamental right out of all recognition? I'm shocked, yes, shocked! :-)
Two points about that case, though. First, it's Federal law, not State law, since the defendant was a member of the military and it was Naval investigators who did the interrogation. So different rules of procedure applied as compared with the Louisiana case; I haven't looked them up to see what they say.
Second, Davis actually said "no" when asked point blank if he wanted counsel. AFAIK the defendant in the Louisiana case was never asked point blank whether he wanted a lawyer; everyone just assumed that his request for a "lawyer dawg" meant they didn't have to probe any further.
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