Friday, June 18

The Twilight of Citizenship?

skepticI wanted to keep writing about Christmas and Advent and waiting and faith – and what all these things mean to me, a born-again skeptic. I really did. All those topics are well worth writing about. But I can’t.

For my intentions have been overtaken by events – more specifically, by the events of the death of Michael Brown in Ferguson, MO, and the death of Eric Garner, in New York City. As a skeptic, I am more predisposed to concentrate on events and trends in the City of Man, not those of the City of God, though without prejudice to the latter. For recent events do not augur well for life in the former. For all I know, Christians may be right in agreeing with the writer of Philippians 3:20: our real citizenship is in heaven. Yeah. Maybe. But we are stuck here for now, and – for now – it is important to reflect on the meaning of citizenship here and now in the terrestrial city where we all, both Christian and non-, find ourselves, the future being whatever it may. The very concept of citizenship has become problematical, at least for some of us – and I think, ultimately, for all of us. The US Constitution has a very broad and inclusive definition of “citizenship” – think “14th Amendment section 1”, think “privileges and immunities clause”, think “4th and 5th Amendments”, etc. – but, the theory being whatever it may, it is becoming increasingly evident that the definition of “citizenship,” and the obligations attached to it, are becoming more and more the province of a few and less and less the birthright of all.


First, full disclosure: speaking only for myself and for no one else, I am willing to cut the prosecutor and the grand jury some slack in the case of Officer Darren Wilson’s shooting of Michael Brown. (Same comments apply to the jury that sat in the George Zimmerman / Trayvon Martin case, by the way.) I was not there. I did not see what happened. I am not intimately familiar with all the evidence and with the witnesses’ testimony. There was no video record. I have serious and lingering questions in both cases, of course, as do most people. Moreover, even with all that slack already cut, I still disagree with Rich Lowry’s Politico opinion piece that Michael Brown’s failure to raise his hands and comply speedily enough justified what amounted to bypassing due process in favor of the impromptu imposition of a capital penalty by Officer Wilson, especially in the absence of a lethal threat against the latter. By his own admission, Lowry disregarded large tracts of evidence in arriving at that conclusion – again, because he was not there, nor was there a video record of what actually happened. But there was most assuredly a video record of what happened in the case of Eric Garner, both during the struggle with Officer Panteleo and immediately thereafter. Both videos document what, by any reasonable assessment, amounts to gross misconduct and malfeasance on the part of the New York City police, misconduct and malfeasance that rise – or, anyway, should have risen – to the level of a criminal indictment. That it did not, especially when considered in the context of similar events like that of Amadou Diallo and other instances, leads to conclusions that we can no longer avoid considering. To cite just three of the more salient examples ...


(1) The 1857 decision of the Supreme Court in Dred Scott v. Sandford was breathtakingly prescient. Now, let there be no misunderstanding of what I mean here. I concur wholeheartedly with the vast majority of, in fact, virtually all, constitutional scholars in condemning Dred Scott as a matter of law. It was atrocious, morally illiterate, and unconscionable. It remains so. But in terms of clear-eyed and unflinching discernment of the real “facts on the ground” – the way things are, not the way they should be – the Dred Scott opinion is, if anything, more relevant now than when it was first handed down 157 years ago. Prescriptively, Dred Scott was unconscionable, but descriptively it was far ahead of its time.

What has been repudiated in the interim is Dred Scott and the de jure legal culture it represented. (Even that statement has to be qualified, however … keep reading.) What has not been repudiated is the far more important de facto culture that continues to thrive in this country. During the decade between the ratification of the Reconstruction Amendments – 13, 14, and 15 – and the Compromise of 1877, but most especially in the years following the Compromise, there was an enormous gap between what the law said and what the actions of people in the Nation said. That is not surprising, and, in fact, is to be expected: the Civil War had only just concluded. Rather, what is intolerably scandalous is that, in the 150-plus years since then, that gap between what the law mandates and what is actually practiced in the streets has not narrowed appreciably. Dred Scott is still an accurate description of the latter, and Chief Justice Roger Brook Taney’s words still largely apply: “ … [the black man] had no rights which the white man was bound to respect”. In a de facto sense, the contemporary relevance of Chief Justice Taney's words are exemplified by the fact that Eric Garner even needed the permission of the NYPD just to breathe.  The grand jury in New York, strictly on its own discretion, raised the evidentiary bar so high that only an explicit declaration of intent on the part of police to harm or to kill Mr. Garner could issue in a criminal indictment – never mind that there exist on the statute books crimes like “negligent manslaughter” and “gross negligence” … even “second-degree murder”. Apparently, the only way a cop can be indicted for a wrongful death, at least of a black person, in New York City is if the cop explicitly declares a premeditated intent to kill someone, a criterion considerably more stringent than that employed in indictments of civilians involved in similar crimes. Cops (among other groups similarly privileged) are citizens. Civilians – least of all black civilians – are not. Chief Justice Taney himself could not have said it better.


(By the way, could someone please explain to me how lapel mini-cams worn by police could improve the situation?  Would a mini-cam on Officer Panteleo's lapel have changed the outcome of the grand jury's verdict? Everyone just seems to assume, with no prior justification, that this would be the case. But if a grand jury did not return an indictment of prima facie misconduct on the part of police, based on what was actually an amateur but quite good recording of an incident – no jiggling of the camera, good foreground focus on what was happening in front of the videographer, all relevant parties in the video frame, etc. – how would what would probably be a much poorer-quality video from a lapel camera, subject to the motion of the wearer’s body, interruptions due to the shocks of foot pursuit, etc., be any more conclusive? Also, it is not difficult to foresee incidents in which an officer, genuinely in fear of life and limb, would be placed in greater danger because the lapel camera prompted hesitations, perhaps unconscious, about how the video would look on the evening news – or during a post facto officer-involved-shooting investigation by a police-review board. Taking a split-second to ask “How will this play in Peoria?” could cost a cop his life. Police accountability is not necessarily to be equated with digital over-the-shoulder peeping. Besides, the very fact that we as a society are seriously contemplating a requirement that police officers wear mini-cams is in itself an index of the extent to which public trust in law enforcement has catastrophically diminished -- and not just among minority communities. The mini-cam issue is a mere epiphenomenon -- I would even go so far as to say a distraction.)

(2) Even the de jure legal culture is in the process of retrenching to the point that the qualifications for citizenship are being narrowed to a degree that the authors of, e.g., the Fourteenth Amendment – Rep. John Bingham, et al. – would have found appalling. Three examples will suffice to illustrate what I mean.

o The Supreme Court's striking down of the core provisions of the Voting Rights Act of 1965 (Shelby v. Holder ... )

The Court held unconstitutional the provisions of the Voting Rights Act of 1965 whereby the Federal government may intervene to investigate and validate voting and voter registration procedures in certain States with historical records of disenfranchising certain marginalized groups, especially racial minorities. Henceforth, unless and until Congress can formulate and implement new criteria to guide the "vetting" of States' voting and voter-registration procedures, and the criteria to be used in determining whether such procedures even have to be "vetted," AL and MI, e.g., will have to be treated on an equal footing with, e.g., CA and MA. Theoretically, of course, Congress could do just that:  update the "tripwire" criteria of the Voting Rights Act of 1965 whereby the voting and voter-registration procedures of States could be evaluated for potential abuses. But theoretically, Gov. Jan Brewer could also sponsor a "Hug An Immigrant Day" in the State of AZ. Theoretically Pastor John Hagee and Dan Savage could appear on the same stage and hug each other. Theoretically, the Pope could begin to advocate for married priests and for sacramental same-sex marriage.  Theoretically ... But in terms of the real world, the Supreme Court's decision in Shelby played directly into the hands of ...

o ... conservative Republican and Tea Party efforts to enforce stringent identification laws, ostensibly as a means of verifying certain people's right to vote

I have written about this more fully elsewhere.  A little investigation indicates the diaphanously transparent fraud of such efforts.  The data I cited in that earlier post are still relevant:

-- The Wall Street Journal -- hardly an implacable antagonist of the Republican Party -- found only about 2000 cases of real voter fraud nationwide in 12 years.

-- A study by Policy.mic came to essentially the same conclusion.

-- Ditto the Brennan Center for Justice and The American Prospect

Republicans' sudden born-again enthusiasm for voter validation reminds me of Groucho Marx's remark about Doris Day:  "I knew her before she became a virgin".

(3) The Supreme Court's holdings in Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission


The consequences of either decision individually, and certainly the consequences of both jointly, amount to nothing less than placing the electoral process on the auction block like a slab of pork-belly to be sold to the highest bidder.  This is true, not only for conservatives like Sheldon Adelson and the Koch brothers, but also for progressive activists like George Soros, Peter Lewis, and David Gelbaum.  In a strange kind of way -- and in the same kind of de facto sense in which African-Americans remain second-class citizens -- the clock has been turned back, courtesy of Citizens United and McCutcheon, to the 18th and early 19th centuries when significant influence in matters political and social was only wielded, could only be wielded, by the ueber-wealthy and well-connected and their PAC surrogates and avatars.  The rest of us ... well ... not so much.  Furthermore, and just for the record, I take no comfort from the fact that, in the wake of both Citizens United and McCutcheon liberals and progressives have just as much right to buy the electoral / political process as conservatives and the Tea Party. That process should not be for sale to anyone at all.

Just this week as I write this (10 December), an article was published in the Harvard Law Review very soberly and rigorously tracing some of the potential consequences of Citizens United and McCutcheon whereby employers could leverage both decisions to be able to legally force employees to advocate, as a condition of continued employment, causes and for candidates the employees do not support. You may be a Clinton or Warren Democrat, but if you want to keep working at the venerable PR firm of Lyon, Cheatam, and Steele, you have to campaign for Ted Cruz on weekends. Companies have always, in principle, been able to restrict the constitutional rights of employees, especially rights having to do with the First Amendment and the "due process" clauses of the Fifth and Fourteenth. EEO legislation forbidding companies to fire employees because of gender, religion, race, and (in some States) sexual orientation provide some quite limited protection. (A few cases exist in which employees have been fired for wearing the "wrong" lapel button or displaying the "wrong" candidate's bumper sticker. All quite legal.) But Citizens United and McCutcheon hold forth the realistic possibility that employers in the near future may be able, not only to restrict speech, but actually compel it, something the Supreme Court has held that the Government cannot constitutionally do even with the Pledge of Allegiance. Just as the site of the original settlement at Jamestown is slowly sinking into the Virginia swampland, so also Americans' citizenship rights seem to be sinking into a legal morass one right, one prerogative at a time.

In a way, I hesitate to discuss the Brown and Garner shootings in such a broad context, because doing so could be interpreted as diminishing the significance of those two deaths in favor of emphasizing the "big picture".  That I emphasize the "big picture" context is not to minimize the intrinsic significance of what may have been, in the former case, and almost certainly was, in the latter, legalized lynching on the part of the police.  Rather, my intent is to say that if the rights of the Michael Browns and Eric Garners are not safe, then neither are the rights of privileged, white, affluent, upper-middle-class white folks.  If I connect all the dots -- not just the dots labeled "Michael Brown" and "Eric Garner," but all the dots -- I can only conclude that we may very well be living in the twilight era of American citizenship when the political process, electoral politics -- indeed, all aspects of our life in the Nation -- are, in the most pristinely literal sense, up for sale.

It is quite understandable if sometimes you want to just throw up your hands and quit.  Quitting is a terrible idea.  But it might be wise to throw up your hands. Just in case.

Merry Christmas to all ...

James R. Cowles





  • James,
    I so appreciate your incredibly informed and reasoned posts. Can’t make comments on all your points (actually I can but won’t!).

    I think your discussing those cases in the broader context is critically important. We drown in the minutia and get trapped in the ego of individual wants. Should we all look at broader contexts perhaps we would be more compassionate, just and honest.

    Simplistically one of the bottom lines for me is the fact that guns do kill. My fear is that if all the police, armies, terrorists, citizens were armed with long stemmed roses humans would probably figure out how to make the thorns lethal.

    The bottom line below the bottom line: “God has created the world as one—the boundaries are marked out by man.”

    Keep reminding us that all us dots are connected.

    • Thank you! During the writing of the post, I had Niemoller’s statement running through my head, the one where he said that when the Nazis came for the Communists he didn’t care because he wasn’t a communist; then when they came for the trade unionist he didn’t care because he wasn’t a trade unionist; then when they came for the Jews he didn’t care because he wasn’t Jewish. He concludes by saying “Then they came for me, but there was no one left to care.”

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