When the Law is the Crime Being Committed

By David A. Love, BlackCommentator.com

When a person commits a crime, everyone has an answer as to what punishment should or should not be meted out. But what do you do when a law is a crime unto itself, and society is committing the crime?

I asked myself that question when I recently saw the film The Lemon Tree. A fictional account based on real-life stories, it centers around Salma Zidane, Palestinian woman who owns a lemon grove on the West Bank-Israel border. Zidane’s neighbor, the new Israeli defense minister, builds an upscale home near the lemon trees and the secret service declares the grove a security threat. The military erects a watchtower, and bars her from entering her lemon grove and tending to it. As the minister and his family take some of the lemons for their own use, Zidane is met with physical force, at gunpoint, when she climbs the wire fence in an attempt to enter her own grove. The minister orders the trees uprooted pursuant to military law, and Zidane, who rejects the government’s offer to compensate her, fights the decision all the way up to the Israeli high court.

The Lemon Tree makes a statement about the dysfunctional state of affairs in the Mideast, and a struggle of people who are fighting for their rights. Central to the film, in my view, is the law which allowed for the destruction and confiscation of Palestinian property on the grounds of “military necessity” (translated: Palestinian terrorist threat).

People do not think much about laws, and they question not how and why they are promulgated. In a previous commentary, I argued that a law is that which is bought and paid for. I would like to add to that definition with a secondary definition: a law endorses and legitimizes the oppressive tendencies of a given society. In order to justify an injustice, simply write it into law and legalize it. Rubber stamp it. You don’t have to justify the abhorrent practice on its merits, you simply back into it. It is now the law, so it is lawful. And the nation’s legal apparatus will bring force to bear and uphold the law.

A law can also reveal a narrative, a story that a given society wants to tell about itself, its values, and the way it deals with certain conduct. So in The Lemon Tree, the law that Salma Zidane challenges provides us with a story about Israeli-Palestinian relations: In Israel, Palestinians are second-class citizens - better yet, non-citizens - who have no rights, including the right to own land in a country that is not their own, even though this is the only home they have known. They are bad people and considered dangerous, whether men, women or children, and should be viewed as potential if not actual terrorists. That is why they are subjected to a regime of ID cards, unreasonable checkpoints and curfews. These security precautions must be taken, the argument goes, to protect Israeli families and their homes from these terrorists (Palestinians).

In the United States, we have seen recent examples of unjust laws. A nation that has all but forsaken the notion of rehabilitation in its criminal justice system, America chooses to punish people - whether through incarceration, fine, sanction, etc. - not only for the crime for which they are convicted. Rather, there are laws that add collateral punishment to a prison sentence by denying a convicted felon access to student loans for college, or by barring that person employment and licensure in many professions, access to public assistance and public housing. Yet, that person is likely expected to find employment in order to pay restitution, as a term of his or her probation or parole. As a result, people with a criminal record are unable to provide for their families and become productive members of society. Such laws articulate the narrative of a country that has decided to write off certain members of society, to banish them from participation in daily life, and pronounce them dead in a civil sense.

Another example is the Bush administration’s endorsement of torture of terror suspects. The Bush cronies started with the blatantly false assumption that torture is acceptable - although domestic and international law clearly says the practice is illegal. Hack lawyers working for former President Bush and former Vice President Cheney provided the legal cover by engaging in professional misconduct - writing memos with faulty legal reasoning declaring that torture is legal. They essentially backed into the legalization of torture by declaring torture is legal because the memos say it is legal.

Wherever you find unjust laws and a legal system that serves as the commission of a crime on society, you will find lawyers and judges as willing participants in the injustice. In the Jim Crow South and apartheid South Africa, not only were racism, racial discrimination and oppression accepted, they were the law. And there were legal tacticians who were willing and able to prop up those systems of injustice. Segregation, disenfranchisement, miscegenation laws, curfews, capital punishment and prison farms were part of a legal framework to kill Black aspirations of empowerment and self-determination.

In a similar vein, the Nuremberg laws devised by Nazi Germany sanctioned the oppression and ultimately the annihilation of European Jews, with the enforcement of these laws by sham kangaroo courts. The Nazi legal regime received their cues from the American South, with racial integrity laws that defined a Jew in ways that echoed the “one-drop rule” for Blacks under Jim Crow. The discriminatory laws disenfranchised Jews; kept them segregated and contained in ghettos; stripped them of their German citizenship; prohibited them from engaging in a profession or working in a government job; barred Jews from intermarrying and having sexual relations with Germans; excluded them from receiving social welfare and attending public schools and universities, and prohibited them from holding driver’s licenses. Jews were banned from resorts, beaches and swimming pools, barred from sleeping and dining cars on trains, and made to register for forced labor. And they were forbidden to walk in certain places at certain times of the day. All of these measures were passed under German law, under penalty of hard labor (like Jim Crow), for the sake of maintaining the purity of German blood. Nazi law defined children as “persons who are not Jews.” Being Jewish, in essence, became illegal.

Dr. Martin Luther King had much to say about unjust laws. In his April 16, 1963 Letter from Birmingham Jail, he said that unjust laws are made to be broken:

"You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may ask: 'How can you advocate breaking some laws and obeying others?' The answer lies in the fact that there are two types of laws: just and unjust…. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that 'an unjust law is no law at all'…. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal."

In our daily lives, wherever we may find ourselves in the world, we must fight the temptation to endorse unjust laws. We should resist participating in the oppression of others through the use of the law. After all, when you have blood on your hands, it is very hard to wipe them clean.

The Intelligent Racists Are the Most Dangerous Kind

By David A. Love
Published by The Black Commentator
November 1, 2007

When Nobel Prize laureate James Watson, the founder of DNA, announced that Black people are genetically inferior, I was angered, though not necessarily surprised.

And I believe that a substantial number of Americans agree with him.

Watson, upon his sudden retirement, has provided a public service by reminding us of the most pernicious and insidious forms of racism. The racism in high places, the type practiced by scholars and lawmakers, can be subtle, yet far more dangerous than the kind practiced by the lowly skinhead or neo-Nazi. And the actions and statements of the former tend to inform the misdeeds of the latter. In the end, the “expert” racist influences public policy and the promulgation of unjust laws, and encourages the proliferation of hate crimes. This always was the case.

Scientific racism began with French aristocrat Arthur de Gobineau (1816-1882) and his book, The Essay on the Inequality of the Human Races, in which he established a theory of the superiority of the Aryan race, and asserted that race is the most important factor in human history. Social Darwinism, the adaptation of Charles Darwin’s theory of evolution and “survival of the fittest” into the social realm, was used to justify imperialism, segregation and the exclusion of immigrants from “undesirable” parts of the world. This mentality gave birth to the IQ test, the ancestor of today’s standardized testocracy. Sham pseudo-scientific studies by scientists in the U.S., Nazi Germany and elsewhere, complete with cranial and other physical measurements, were designed to prove the inferiority of people of color, Jews, and European ethic groups that were not yet considered White. Under the Third Reich, scientific racism led to the Nuremberg laws, Jim Crow-style policies which stripped Jews of their rights, their livelihood and their identity, and culminated in genocide.

Systems of oppression do not necessarily need a scientific basis for remaining in power and maintaining their legitimacy—sometimes a raw power grab will suffice— but it certainly helps. “If we can show that these people are inferior by birth,” the logic goes, “there is no use in helping them, as any attempts will prove futile.”

In more recent years, American conservative philanthropy supported studies such as the 1994 book, The Bell Curve, by Harvard professor Richard J. Hernstein and Charles Murray of the American Enterprise Institute. The authors argued that differences in intelligence are better predictors of anti-social behavior, criminality, unwed pregnancy, and financial success than are socio-economic status or level of education. Not surprisingly, they found that Blacks had lower IQs than Whites or Asians, the people with the worst social behaviors have the lowest IQs, and concluded that affirmative action and social programs for the disadvantaged should be eliminated.

Now, the enemies of diversity have their sights on law students of color, who they believe cannot cut it and should be rejected from admission. For example, Richard Sander, a UCLA law professor, suggests that elite law firms do themselves a disservice by hiring unqualified lawyers of color who have lower grades. People who embrace Sander’s flawed study rely on deeply-ingrained assumptions about Black intellectual inferiority. For example, the regressive members of the U.S. Commission on Civil Rights, who subscribe to Sander’s point of view, are railing against so-called racial preferences and a gap between White and Black law student academic performance, and the American Bar Association’s commitment to diversity in law school admissions. Meanwhile, the Society of American Law Teachers (SALT) and Columbia University note that while African American and Mexican-American students have been applying to law school in constant numbers over the past 15 years—and these students are doing better than ever academically–their enrollment has been declining since 1992, even with larger class sizes.

America’s conservative movement, the opponents of civil rights, is a proxy for racism. Since the debut of the Republican Party’s Southern Strategy in the late 1960s and early 1970s, the Southern segregationist Democrats completed their exodus to the GOP—same people, different party. Just as Ronald Reagan kicked off his 1980 campaign in Philadelphia, Mississippi (where three civil rights workers were murdered in 1964) in support of states’ rights (a wink and a nod to Southern racists), today’s GOP presidential candidates scurry to kiss the brass ring of Bob Jones III, president of Bob Jones University. Until very recently, BJU enforced a campus-wide ban on interracial dating. In the end, Mitt Romney, presidential contender and empty suit, won the endorsement of that “Christian” university’s bigoted leadership.

As the now-deceased Republican strategist Lee Atwater said in 1981, “You start out in 1954 by saying, ‘Nigger, nigger, nigger. By 1968, you can’t say ‘nigger’ — that hurts you. Backfires. So you say stuff like forced busing, states’ rights, and all that stuff. You’re getting so abstract now [that] you’re talking about cutting taxes, and all these things you’re talking about are totally economic things, and a byproduct of them is [that] blacks get hurt worse than whites.”

And today, the Republicans—with their bashing and deportation of Latino immigrants, hatred of Arabs and Muslims and assaults on affirmative action—are selling themselves as the party of White nationalism because that is their only remaining selling point. After all, they cannot boast about a sound economic and fiscal policy, or tout a successful foreign policy. This selling point, that people of color are inferior and undeserving and must be kept down, has been tested since the Civil War. Wealthy landowners convinced poor Whites to fight to preserve a system of Black enslavement, which made White labor superfluous, but at least kept them one step above colored folk.

The self-described “party of Lincoln” is living on borrowed time and the memory of a president who died nearly a century and a half ago. They are unsuccessfully fighting back the tide of color in this country, and like their Jim Crow predecessors, seek to suppress the voting rights of Black and Brown people. (After all, John Tanner, the chief of the Justice Department’s voting rights division, recently argued that while voter ID laws hurt the elderly, they aren't a problem for minorities because they die before old age.) While common sense would dictate that such a strategy is doomed to failure, no one ever said that racism is rational.

The bright spot is that we will likely see fewer Black gospel minstrel shows at future GOP conventions, such as the performance by Donnie McClurkin in 2004. While former representative J.C. Watts, an African American, bemoans the GOP’s stance towards diversity, oddly he didn’t seem to object when he served as waterboy for their atrocious policies in Congress.

And people in high places—eager to deflect attention from a failed war and a disastrous economy—have created a harsh racial climate in which people of color, scapegoated, are fair game. It is no accident that as the Right makes people of color the bogeyman and enacts harsh laws against them, people of color increasingly are the victims of hate crimes and frivolous, unwarranted, race-based prosecutions. Look at the case of Megan Williams, 20, a Black West Virginia woman who was kidnapped by White supremacists, tortured for a week, beaten and sexually assaulted, and forced to eat rat droppings. In light of Williams’ plight, and the rise in the hanging of nooses, racial attacks and intimidation of African Americans around the country, Black Lawyers For Justice organized a November 3 National March Against Hate Crimes in Charleston, West Virginia. The group demands Congressional hearings on hate crimes.

Meanwhile, as prosecutors refuse to act against hate crimes, they are eager to make a football player public enemy number over dog fighting (Michael Vick), or send Black boys to prison for 10 years for consensual sex (Genarlow Wilson in Georgia), or 20 years for a schoolyard brawl with a noose-hanging White classmate (the Jena Six in Louisiana). We have a serious race problem here.

During the civil rights movement, the influential Whites Citizens’ Council, the “white-collar Klan,” kept their hands clean while their lowly Klan brethren hung nooses, burned crosses and lynched so-called agitators. Today, scientists, law professors and policymakers create the climate that allows a new wave of hate crimes to occur. We must resist the scientific racists, and replace their politicians with righteous people who believe in equality and justice for all humanity.

Copyright © 2007 by David A. Love