Of Law and Langauge

Yale Law Professor Jack Balkin has a really fantastic post up on the "other side" of the Critical Legal Studies movement. A good deal of CLS scholarship was based around "trashing" liberal conceptions of rights and "neutral" procedures. They argued that law and legal texts were inherently malleable, and would always be bent to serve the interests of the socially powerful at the expense of the weak. Even the very language of the law--centered high-minded ideals like "justice" and "equality", could be manipulated to serve the interests of ruling elites. So it is that many people now understand, say, Affirmative Action as a violation of the equality principle, rather than its instrument. Thus, while CLS thinkers often believed that law is simply another form of politics, law actually has a particular danger not present in other forms of politics. Law, far more than ordinary politics, has the potential to corrupt our very moral categories themselves.

There is more than a grain of truth to this. But as CLS evolved and began to dialogue with its offspring in the race and feminist movements, a counterthread began to emerge. This talk of rights and justice and ideals is certainly not immune to being enlisted in the service of regression. But, as many veterans of the civil rights movement noted, the fact that legal discourse was constructed around these categories meant that they had grounds to at least make claims. Rights were something Black people could stake out, and it is an inherently superior frame for the debate than "pure" power politics. Because law channels elite discourse into terms like justice, advocates can choke them with those words. "How can you do this?" can easily be responded to with "Because I can." "How can you call this just?" is not as easy to dodge out of.

The relative autonomy of law from politics-- rather than its complete autonomy-- simultaneously posed a threat and a promise. The threat was that law would fail to do much more than ratify and legitimate the interests of the powerful; the promise was that it could hold off the worst excesses of power by giving people discursive and institutional tools to talk back to power, to restrain its selfishness and inhumanity, and to imagine finer, better visions of human association.

The threat and the promise of law were joined together inseparably. What gave law its power to legitimate was its ability to re-describe unjust and unfair events, social practices and institutions in terms of valued ideals of human association like consent, freedom, equality and fairness. In the hands of lawyers and politicians, law could disguise, mystify and legitimate great injustices using the very ideas and ideals we admire. But law could only do this because it appealed to these values and claimed to be trying to put them into practice through law. That is, the recourse to law forced the powerful to talk in terms in which the powerless could also participate and could also make claims.

The CLS critique of law was thus Janus-faced. On the one hand, powerful people used law to subordinate others and secure their own interests under the guise of promoting laudable goals like freedom, equality, liberty, consent, community and human dignity. On the other hand, by choosing to speak in the language of law, powerful people and interests could be called to account because they tried to legitimate what they were doing in these terms. The people they took advantage of could always argue that this was a misuse of law, an illegitimate attempt at mystifying rhetoric. They could then appeal to the values that law sought to protect to promote better, juster, and more humane practices and forms of human association.

Law is often overstated as a tool for liberation. But then, it is often underestimated as well. Law has the ability to force the discussion into terrain advantageous for liberators. It does not guarantee results, but it may make the fight just a little fairer.

"We Call Them Terrorists"

Brad Plumer discusses the stock conservative arguments against the proposed Hate Crimes law winding its way through Congress. Though there are some unbelievably dumb arguments against this bill (that it equals slavery, or that it's a massive Jewish conspiracy), the ones Plumer hits are at least somewhat serious and plausible.

There appear to be four main objections to the hate crime bill. First, that it will infringe on free speech rights. The bill seems rather carefully crafted to distinction between violent actions and discriminatory speech, with the latter still enjoying protection. So, as Plumer puts it, Tony Perkins can still gay-bash as often as he wants, so long as he doesn't start actually physically attacking them. I'm fine with that distinction. The second argument is that local law enforcement doesn't need the help. But at worst, then, we have a redundancy, and there are plenty of examples where local cops could either use extra resources, or aren't equipped to handle hate crimes, or simply don't care that gay people get beaten up. I am not sufficiently confident in the ability of local police forces in very conservative areas to take seriously hate and violence against gay and lesbian Americans--especially when it doesn't rise to the sensationalized violence that brings national cameras. The third is that the bill doesn't protect certain other classes, like members of the armed forces or the elderly. The problem is that's the Republicans' fault--color me unsympathetic. And the fourth is that the bill may not deter hate crimes. But as Plumer points out, even if true, deterrence is not the only reason we have criminal laws.

And this is the critical point. This bill is principally a statement about motives, not victims. Indeed, this is why the bill covers me if my attacker simply thinks I'm gay. And it covers me if a radical gay activist decides to go on a killing spree against straight people. The point is that the state of mind of the attacker--be it to "send a message to the queers" or "give heterosexuals a taste of their own medicine"--is particularly condemnable. We all agree that motive matters when talking about culpability. Murdering mom to get the inheritance is worse than murdering her in a drunken rage, is worse than murdering her because she physically abused you. We know this. And much of the distinctions in criminal law are defined by what we, as a society, have to say about particular motives. In this case, the motive that gay Americans are subhuman. The motive that they do not deserve to be members of our community. The notion that all gay people, not just the particular victim of the violence, is worthy of being attacked and abused. This bill sends an important message about what is and is not tolerated in the American community:

But many if not most hate-crime offenders refuse, even after incarceration, to admit that what they did was morally wrong. This is because they believe they are acting on the unspoken wishes of their previously homogeneous community, and thus taking action on a moral plane all their own.

This is why it's important for communities to stand up and be counted when hate crimes occur in their midst. Making public their utter condemnation of such acts sends an important message to the would-be perpetrators: the community does not condone violence to expel outsiders. Using the stiff arm of the law to back that message up is essential, especially when the need is so clear.

Conversely, pretending that a swastika on a synagogue is just another case of vandalism, or treating (especially in law enforcement terms) a "fag bashing" as just another bar fight, sends quite another message, one that in the mind of a hate-crime perpetrator equates with approval. A slap on the wrist is too often seen as a pat on the back; equanimity as forbearance.

You saw this all the time in Southern lynch-law cases. Even though killing is against the law, the perpetrators of those hate crimes had every reason to believe that the community tacitly condoned the sentiments motivating the act. Even if they would prosecute the murders (and that was rare enough), nothing was done to breakdown the notion that the motivation, too, was immoral. In such a context, it is so important to be very explicit in sending the opposing message. The South needed to be told--in the clearest possible way--that not only was murder wrong, but that the entire desire to force Black Americans into submission was reprehensible and rejected by the broader community.

As Steny Hoyer pointed out in a breath-taking floor speech (scroll to Hoyer's second clip), in America today we also know of people--people of faith, even--who kill and slaughter because they hate the group their targets belong to. We call them terrorists. They attack us, by their own admission, not because they have met us and dislike us, and not because they are drunk. They attack us because we're Americans. Or Christian. Or Jewish. And despite the fact that murder remains illegal, we have anti-terrorism laws to deal with these people. As we should. The action of these men exists on a different moral plane from run-of-the-mill murderers. Murderers' victims are limited. Terrorists target the entire group towards whom they express their hate. When Nasrallah orders rocket attacks on Israeli civilians, I'm affected too, because his stated motivation is to kill Jews across the world. The slaughter is meant to send a message to me, as well, and I hear it loud and clear.

The people who kill to express hate, to strike fear across whole populations and groups, are terrorists. There can be no distinctions. And so, the Americans who would kill gay and lesbian Americans, like those who would bomb abortion clinics, like those who engaged in lynchings in the south, are terrorists. Their motive is hate. They believe that the people are behind them. Our job, our duty, is to prove them wrong in the most emphatic of terms. That's the message of this bill. And that's why it needs to be passed.

Classless

Missouri Democratic Senator Claire McCaskill was invited to speak at her daughter's graduation ceremony at St. Joseph's Academy. Then the Archbishop objected, due to her views on abortion and stem cell research. So she was disinvited.

[Archbishop] Burke is not new to controversy or to politicizing his religious views. He was behind the effort to deny John Kerry and other progressive Catholic politicians eucharist. Last week he tried to derail a benefit concert by Sheryl Crow for a local Catholic hospital because of her support for stem cell research. Apparently he put politics over critical funding for the hospital. He resigned his position on the board of directors for the hospital when they refused to cancel the concert.

Lovely. As the above-linked post states, the odds McCaskill was going to turn this into a pro-abortion rally ranges from slim to none. There is no doubt that a sitting US Senator would make for an excellent role model for the graduates of this academy. Unfortunately, the Archbishop decided to make a political point on the backs of teenagers.

Classy.

Incest and Sinai

Did you know Rhode Island exempts Jews from its law barring Uncle-Niece incest and marriages? This is to allow Jews to fulfill certain commandments laid out in Leviticus. While Jews no longer condone Uncle-Niece incest (centuries-old Talmudic interpretation has essentially nullified the doctrine entirely), it does kind of give lie to cheap talk about "a code of conduct stretching back to Sinai" being against incest. There's a weird tendency among some authors to assume that "bad things" are exactly interchangable with "things the Bible condemns." It's not true, and often times it leads to really sloppy writing. Not to mention, an atrophy of critical thinking on our part as to why we think Uncle-Niece incest is wrong. As this case demonstrates, always deferring to our ancestry can lead to some dangerous and unforeseen commitments.

The Rhode Island law isn't exactly an anomaly, either, though its the only one to single out Jews. Several other states have exceptions to Uncle-Niece incest and marriage laws (Minnesota and Colorado permit it for "aboriginal cultures"), and Oregon doesn't bar Uncle-Niece incest at all (though it does not recognize marriages). I suspect most of these laws are relics of some form--I doubt any would pass today. It's just an interesting legal and historical note that I never knew.

It certainly would make for an interesting case example for my paper on Jews and American Church/State relations, though.

When Election '08 Isn't Close Enough

You'd think that it'd be Democrats who'd be the ones angling to change the powers-that-be in Washington prior to the '08 election. After all, we're the ones who recognize believe this administration is a complete and utter disaster. That's why the impeachment talk keeps bubbling up. But, as so often is the case, we are perpetually being one-upped by our friends on the right. And so, here is conservative luminary Thomas Sowell:

When I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can’t help wondering if the day may yet come when the only thing that can save this country is a military coup.

But remember, I'm the traitor.

Incidentally, Sowell is reputed to be very bright, and perhaps in his academic work he is, but this column reads like the work of 8th grade member of the Young Republicans club. It's a stream of consciousness rant that just tries to pack in as many non-sequiturs and weakly connected (not to mention warranted) conservative talking points as possible onto a page. It'd be amusing if it was a known moron like Ann Coulter, but Sowell is supposed to pass for a conservative intellectual. Is this really the best they've got?

Via The Plank

Blackroots Awakening

Blackprof contributor and GW Law Professor Spencer Overton has a fantastic post on how the controversial CBC/Fox News debate has really awakened the Black Netroots community (Blackroots). Overton notes that for many years the Black community has been stuck in a MLK/Malcolm X model of leadership, headed up by a few charismatic but unelected leaders, relatively unaccountable, and very top-down. The rise of the Blackroots offers an alternative mechanism for the liberal Black community to assert power and influence, outside the traditional channels. This is how there could be such a groundswell in the Black community against the debate, despite its endorsement by the epicenter of Black political power, the Congressional Black Caucus.

The New Target

Over at Tapped, Garance Franke-Ruta notes that the VRWC has begin to turn its sights away from Hillary Clinton and towards Barack Obama. Bad news for John Podhoretz's book, but probably a good strategic move.

Thus far, the breathless anti-Obama screeds by the right have not been impressive. But perhaps they'll get somewhere, if they can resist not snickering like second grade school children over his middle name for the next 15 months (though nothing would make me happier).

Ever To The Left

The new president of the American Jewish Congress has pledged to restore the group's progressive domestic policy focus. I particularly like the increased emphasis on outreach to other ethnic groups and organizations, including Muslim groups. Jews have always been an integral part of "Rainbow" coalitions, and I think it is important to nourish that activism and assuage concerns that the contemporary Jew is still as committed civil rights and equality for all Americans as we have been in years past.

In recent years, the AJC had been getting a reputation for moving to the right, even occasionally (and unjustly) being called a "conservative" organization. Much of this has been overstated, but I'd just as soon nip things in the bud on that count. Jews remain overwhelmingly liberal, our political commitments are strongly in line with the Democratic Party mainstream, and it's important for the broader political community to feel that our organizations accurately represent the views of the American Jewish population writ large.

Now Who's Authentic?

From the NYT's profile of Barack Obama's relationship with his pastor, a somewhat controversial figure who proudly advocates Black liberation from the pulpit:

In the 16 years since Mr. Obama returned to Chicago from Harvard, Mr. Wright has presided over his wedding ceremony, baptized his two daughters and dedicated his house, while Mr. Obama has often spoken at Trinity’s panels and debates. Though the Obamas drop in on other congregations, they treat Trinity as their spiritual home, attending services frequently. The church’s Afrocentric focus makes Mr. Obama a figure of particular authenticity there, because he has the African connections so many members have searched for.

Isn't that ironic? The knock on Obama was that he was not sufficiently "authentic" as a Black man, because his ancestry did not stem from the Atlantic Slave Trade. But now it turns out that he's extra-authentic, because he's comparatively closer to his African roots than most of his Black peers.

I think this entire issue of authenticity is a rather silly question, and one primarily concocted by the media to boot. Obama, like all candidates, has the obligation to prove to the Black community that he understands their concerns and has the commitment and the chops to advance their interests as President. Insofar as the Black community is not just flocking to Obama like sheep, that's the reason: They're not sheep, they're savvy voters, and they'll make Obama earn their vote just like any other politician.

Racial Geography: The Indian Question

A comment dropped by PG on my "French Model" post mentioned the status of Indian-Americans in American racial discourse. She points to their exclusion from the traditional Black/White binary, but I think the problem is yet deeper than that, and when I try and speak of Indian-Americans from a racial prism, I run into all manner of problems.

Here's the deal. I think America has, for now, settled on roughly the following divisions in race: White, Black, Latino, Native American, and Asian. Arab strikes me as being seen more as an ethnicity than a race, but that may be changing with the whole "clash of civilizations" rhetoric surrounding the war on terrorism (there's some really interesting literature about how Arabs "won their Whiteness" in legal cases back when America still made serious racial distinctions in its immigration laws). But aside from Arabs, Indians are the group that really gets left out. But it's interesting as to why.

In terms of racial stereotyping, I feel like Indians should be grouped with their geographic compatriots, (East) Asians. Aside from the fact that Indians are from, well, Asia, they are viewed in much the same way by Whites as Asians are. The stereotypes are predominantly (not completely) positive. They are seen as academically advanced, even nerdish. Mockery tends to be based around accent (the most prominent uniquely Indian negative stereotype, the Apu-type shopkeeper, is based heavily around this). Sometimes they are seen as competitive threats (taking our jobs), but are not usually considered inferior (sort of like Jews). They are not seen as particularly criminal or violent. Interracial relationships between Whites and Indians, like White/Asian pairs, are relatively accepted compared to other cross-racial mixes.

Yet, I don't think that when most people talk about Asians as a race, they include Indian-Americans. Why is this? In America, race is inextricably linked to color. That's why the binary races are called "White" and "Black". Archaically, you'd see Native Americans called the "red" race ("Redskins"), Asians "yellow", Indians "brown", and Latinos "tan." Today most of that has fallen by the wayside except White/Black. But the mental linkage remains, and let's face it--east Asians and Indians are of a different color. Hence, I think we have a lot of trouble placing them as part of the same race.* It'd ruin our neat framework that unites race and color.

Ideally, the tension Indians bring out between color-centric and characteristic-centric manners of racial categorization would help reveal some of the instability of racial categories, and would lead to some more critical dialogue about what it means to be part of a "race". Unfortunately, America as a nation seems to have a collective inability to deal with complexity ("John Kerry is too nuanced for me!"), so that's out of the question. What we get instead is Indians being dropped out the conversations entirely, so we don't have to deal with the issues they raise to our basic conceptual schema. Similarly, non-Arab Muslim states are either simply grouped as the same as their Arab neighbors (Iran, Pakistan), or relatively ignored when talking about how Muslim governments do or do not perform (Turkey, Indonesia). Arab=Muslim=Simple. Arabs being of many religions, and Muslims being of many ethnicities, is not simple. Intersectionality questions, ditto ("Black AND Woman? One at a time!").

So to answer your concern, PG, the reason Indians are absent from American racial discourse is because they ruin our neat conceptual frame. Stop complexifying our simple little world.

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*To be clear, I don't think we actually follow any of our racial categorization procedures to their logical conclusion, because it would expose the concept of race as the absurdist fantasy that it is. Color doesn't fit because it's nearly impossible to distinguish the hue of Latinos from that of Southern Europeans. Stereotypes don't work because they don't actually track groups neatly like we pretend that they do. Biology doesn't work because ethnically related groups are spread out too far to keep our idea of "distinct" races--Finns and Koreans are more closely related to each other than they are to their geographic neighbors, but no racial categorization scheme I've seen has grouped them together.

UPDATE: I'm withdrawing the Finn/Korea connection claim because I've been unable to find significant corroberating evidence beyond my original source (my tour guide when I was in Finland). I have noticed some similarities in physical appearance, and have since read some evidence for the linguistic connection, but it isn't strong enough to base a claim on.