Archive for March, 2013
The Holy Land Gets Skunked — An Analysis (25 March 2013) by Lawrence Davidson
Part I – Something Is Rotten in the State of Israel
It is said that the devil has about him the smell of fire and brimstone (sulphur). Evil deeds are often described as “most foul.” On the other hand, people who appear, accurately or not, as always innocent are described as “smelling like roses.” There seems, then, to be a long standing, if improbable, association between behavior and smells.
The Israeli army has recently dedicated itself to demonstrating this association. Back on 6 March 2013 the Middle East Monitor reported that
Israeli forces have sprayed Palestinian homes in the village of Nabi Saleh with Skunk as punishment for organizing weekly protests against the Apartheid Wall built on occupied land. Human rights watchdog B’Tselem published a video showing Israel’s armored tanker trucks fitted with “water canons” [spraying] the foul fluid.
Skunk is a fluid so offensive smelling that people automatically retreat from anywhere or anyone doused with it.
This is not the first time the Israelis have used such noxious tactics. Zionist settlers are fond of diverting the sewage from their illegal settlements, which are usually placed on high ground, into the fields and towns of Palestinians living in the valleys below. This is apparently done with the knowledge and approval of the Israeli state.
I doubt if many of the Israelis involved in these maneuvers have ever read Dante’s Inferno. In that epic poem, Hell is a place steeped in sewage and rot, and Israeli actions seem intent on reproducing this scenario. Are the Israelis then trying to turn the Holy Land into Hell? Well, yes, for the Palestinians. To this end the settlers and soldiers mimic Dante’s demons.
Part II – Selective Smelling
How far does the bad smell of Israeli actions reach? We can be sure that it reaches as far as London, where MP David Ward of the Liberal Democratic Party recently wrote in a Holocaust Memorial book that,
having visited Auschwitz twice . . . I am saddened that the Jews, who suffered unbelievable levels of persecution during the Holocaust, could within a few years of liberation from the death camps be inflicting atrocities on Palestinians in the new State of Israel and continue to do so on a daily basis in the West Bank and Gaza.
Ward’s reference to “the Jews” have been qualified, because not all Jews support Zionism or Israel’s claim to “Judea and Samaria,” much less the pogrom-like way the Israelis are going about ethnically cleansing the areas under their control. In fact, an increasing number of American Jews are, if you will, washing their hands of Israel in general. Yet Ward was correct when it comes to the “Jewish state’s” behavior. Perhaps Mr. Ward’s confusion was a product of Israel’s constant insistence that it represents all the world’s Jews.
Not everyone seems to smell the odor emanating from Israel. Mr. Ward’s Liberal Democratic Party called him to account for daring to draw attention to the fact that foul acts continue to be committed against the Palestinians by the self-proclaimed representative of the Jews. A quiet word to Ward about avoiding generalizations would probably have sufficed but, using a process similar to those carried out by totalitarian regimes, Ward’s party ordered him “to meet with the party’s ‘Friends of Israel’ chapter to ‘identify and agree on language that will be proportionate and precise when he speaks out again on the Israeli-Palestine conflict.” He did so and issued the required apology. This smells like censorship to me.
Part III – Foul Is Fair
It’s one thing to punish someone for calling attention to Israel’s rank behavior. It is something else to insist that foul is actually fair–-to say the sewage smells like roses. Who would be reckless enough to imply such a nauseating thing and do so with a straight face before cameras with the whole world watching? How about the President of the United States? He lives in Washington D.C., where denial of Israel’s malodorous nature is almost unanimous.
President Obama had an interview with Israel’s Channel 2 TV station on 15 March 2013, just before he left to visit that country. In the interview he stated that he admires Israel’s “core values.” The Israeli journalist Gideon Levy, who has an honest nose for these things, editorially asked Obama,
which values he was talking about? The dehumanization of the Palestinians? The attitude toward African migrants? The arrogance, racism and nationalism? Is this what he admires? Don’t separate buses for Palestinians remind him of something? Doesn’t two communities living on the same land, one with full rights and the other with no rights, ring a bell . . . ?
To admire “core values” while knowing we’re talking about one of the most racist countries there is, with a separation wall and apartheid-like policies, means betraying the core values of the American civil rights movement that made the Obama miracle possible.
Nonetheless, upon arriving in Israel, President Obama said that U.S. support for the very same Israel Levy describes will “be forever.” It might be added that, at the same time, the president insisted that the Palestinians cease demanding a halt to the building of settlements, with their targeted open- sewer policies, before any further “peace” negotiations with the Israelis.
When it comes to Israel, President Obama, and most of the Congress as well, can’t tell the difference between fair and foul. That is because they live in a peculiar professional world whose parameters, in reference to Israel and Palestine, are defined by a Zionist lobby with Orwellian powers. In this special world, double-think abounds. Racism, apartheid, ethnic cleansing, and the tactical use of Skunk and raw sewage disappear and are replaced by imaginary “core values” that smell like roses.
Part IV – Conclusion
The president can privately smell garbage and call it roses all he wants. But when he tries to sell the rest of us on this connection, the credibility of his language sinks into the gutter. Remember what George Orwell tells us about the potential for harm in the misuse of political language. Misused, such language offers a “defense of the indefensible” and is “designed to make lies sound truthful and murder respectable, and give an appearance of solidity to pure wind.” That is what most politicians’ language has sunk to when it comes to Israel/Palestine.
That this should go on “forever,” as the president claims, is just hyperbole. Consider the fact that a recent CIA report calls into question the Zionist state’s ability to last for more than another twenty years. No, the bad smell coming from Israel denotes internal socio-political rot, as well as rotten tactics toward non-Jewish inhabitants. Sooner or later everyone possessing a humane conscience, to say nothing of a functioning honest nose, will refuse to have anything to do with this “apartheid-like” state.
The Wrath of the Bureaucracy – An Analysis (15 March 2013) by Lawrence Davidson
Part I – Bureaucracy
The institutions of modern society, including governments, large economic structures, and military forces, are organized in bureaucratic fashion. A bureaucracy is a form of organization that operates by means of a wide range of closely supervised departments capable of performing specific tasks in efficient ways. This division of labor, or specialization, is carried on according to well-defined rules and regulations. Therefore, the workers in a bureaucracy (i.e., the bureaucrats) perform their tasks within a compartmentalized environment that narrows their focus to the task at hand. Potentially mitigating circumstances that might call into question the task set for the worker, or the rules governing its implementation, are almost always ignored.
The command structure of bureaucracies is hierarchical, or what is called a “vertical pyramid power structure.” This is how Max Weber, the great sociologist, described this topdown arrangement and its consequences:
The principles of . . . graded authority mean a firmly ordered system of superiority and subordination in which there is a supervision of the lower offices by the higher offices. . . . Rational calculation . . . reduces every worker to a cog in this bureaucratic machine and, seeing himself in this light, he will merely ask how to transform himself into a somewhat bigger cog. . . . [Such an institution’s] specific nature. . . develops the more perfectly the more bureaucracy is dehumanized.
Out of this emerges a “bureaucratic mindset.” The bureaucrat is supposed to think of his or her assigned task and how best to accomplish it. That is what is meant by “staying with the program.” The bureaucrat is not supposed to think why the task has been assigned or what its implementation might broadly mean. Like the task itself, thinking too becomes detached from any context but that generated by the bureaucracy. This attitude is reinforced by the fact that responsibility is also compartmentalized. As long as one pursues the task efficiently, according to prescribed procedure, one is acting responsibly. Through this approach, it becomes difficult to hold any particular bureaucrat responsible for the overall impact of a policy. The task of implementation is too fragmented.
Part II – The Military Bureaucracy
No institution is a better fit for the bureaucratic structure than the military. It is a model for Weber’s “firmly ordered system of superiority and subordination in which there is a supervision of the lower offices by the higher offices.” Work goes on within a compartmentalized environment structured by rank and myriad rules and regulations. Action is focused on fulfilling specific orders normally without reference to outside consequences.
As a result, within the military bureaucracy thinking must always be within the box, which means it is done within the institution’s set thought-collective. Indeed, given the military’s particular environment, one that strives to shape the thought as well as the action of its participants, thinking can take on near totalitarian constraints. The following scenario reflects this reality. Imagine a room in which two privates sit discussing some mission-related issue. Between them there is an equality of rank and so the discussion can be relatively candid. In walks a sergeant, who joins the discussion. The sergeant’s opinion can immediately supersede those of the privates and end the discussion. We can repeat the scenario using two sergeants joined by a lieutenant or two lieutenants joined by a captain, and so on up the line. It is rank that carries the power to decide mission-related issues and not necessarily knowledge or even experience. And, once the decision is made, the senior officer’s version of reality cannot be challenged except by someone of superior rank. His or her orders must be obeyed even if a subordinate can reasonably predict disaster as a result. Thinking outside the box, and then acting on the resulting unauthorized thoughts, opinions, and conclusions, is the bureaucracy’s equivalent of criminal behavior.
At first it seems surprising just how few people in the military challenge its thought-collective. Today there are about two and a half million individuals in the U.S. military (including the reserves), and the number incarcerated in military prisons with a sentence of one year or longer is (using 2007 numbers) 1,089. Relative to the incarceration rate in the U.S. civilian society this is remarkably small. The percentage of this number that represents the willful disobeying of orders (rather than the usual criminal acts such as assault or theft) is smaller still.
While at first this might seem surprising it is not on second thought. The military is not a democracy. It is the closest thing we have to a successful version of George Orwell’s 1984. The restrictive thought- collective is reinforced not only by a rigid hierarchical culture of obedience but also by carefully cultivated peer pressure. Someone who breaks out of this “box” and does so for reasons of conscience is a rare individual indeed.
Part III – The Case of Bradley Manning
Private Bradley Manning is just such an individual. I first wrote about Manning in August of 2010, andhere is how I described him and his situation:
Bradley Manning was an army intelligence analyst with U.S. forces in the Middle East who became deeply disturbed by what his job revealed to him. Essentially, it made him a front row witness to what he described as “incredible things, awful things.” This primarily entailed the careless killing of innocent civilians. As an act of conscience he gave to the website WikiLeaks over 200,000 classified documents as well as a graphic video showing an attack on Iraqi civilians.
Manning confirmed his status as a prisoner of conscience in a statement he read at a pre-trial hearing on 2 March 2013. In the statement he described how (1) the high number of civilian deaths in Iraq, (2) the stubborn refusal of army authorities to admit to and deal with this issue, and (3) the lack of U.S. media coverage of all this “collateral damage” disturbed and “emotionally burdened” him. His response was to release the material noted above. He continued in his statement to say,
I hoped that the public would be as alarmed as me about the conduct of the aerial weapons team crew members [this refers to a particularly egregious army helicopter attack on civilians recorded on video tape and leaked to WikiLeaks]. I wanted the American public to know that not everyone in Iraq and Afghanistan are targets that needed to be neutralized, but rather people who were struggling to live in a pressure cooker environment of what we call asymmetric warfare. After the release I was encouraged by the response in the media and general public.
However, the U.S. military has shown no serious concern about what its soldiers have done, and continue to do, to civilians in the Middle East. This is because those soldiers have acted in ways compatible with the bureaucratic rules of the organization they serve. Under these conditions the killing of civilians, no matter at what frequency or number, is deemed accidental as long as the soldier follows the military’s self-prescribed “rules of engagement.” Having done so, civilian casualties become “collateral damage.” Therefore, no one is culpable. It is, of course, possible to force the military to change its behavior by making “collateral damage” so distasteful to the U.S. public that it becomes a political problem that civilian leaders must address. That is exactly what Bradley Manning was trying to do.
That is why the military has shown dramatic concern over what Bradley Manning has done. He has gone outside the box. He has broken free of and actually publicly challenged the military’s thought- collective. Since the Viet Nam War the U.S. military has eschewed the draft and embedded the journalists, so as to minimize public awareness of battlefield realities. They are not now going to let one private with a conscience bring public revulsion down on their heads. So, they have accused him of “aiding the enemy” and hope to send him to jail for the rest of his life. They hope this will be a lesson that prevents others from following in Manning’s footsteps.
It is the leaders of the military bureaucracy, and not the out-of-step private, who will probably succeed in this contest. That is because Manning’s hope that the data he released might “cause society to re-evaluate the need or even the desire to engage in counter-terrorism and counterinsurgency operations that ignore the complex dynamics of the people living in the affected environment every day” has, to date, failed. Why so?
There are some U.S. citizens who see Manning as a hero (I am one of them), and some who see him as a traitor. Manning’s target population was and still is all of the rest. Yet the sad truth is most of this remainder doesn’t care much about Manning’s fate and will, in the end, accept the government’s verdict on him. This is how I reasoned out the situation back in 2010, and I think my conclusion is still sound. On the assumption that most people are locally focused and apolitical I conclude that this vast majority are unconcerned about the Manning case because it seems not to touch their lives. And, on the assumption that the government and its allied mass media control the information flow, I conclude that most of the minority who are aware and concerned share the official view that Manning is a traitor.
That leaves a minority of the minority who are aware of the significant implications for justice and human rights involved in this case; who are aware of the broader contextual circumstances that led to Manning’s actions and the implications for future U.S. international relations implicit in those circumstances. The prediction that this minority of a minority totals “millions,” as some suggest, is almost certainly an exaggeration. However, whatever the number of his sympathizers, it is far less than is needed to either obtain justice for Manning or save the United States from its own criminal policies.
Omar Khadr, Bradley Manning and Our National Psyche – An Analysis (8/11/10)
At present there are two men sitting in prison who have never met but are nonetheless intimately connected. One is 23 year old Omar Khadr, a Canadian citizen who was with a group of Afghan resistance fighters attacked by U.S. troops in 2002 (when he was 15). The second is PFC Bradley Manning, the man who blew the whistle on the barbaric tactics used by the U.S. in both Iraq and Afghanistan. It is their different forms of resistance to a war sold to the U.S. public as “necessary” and “defensive” that binds their fate.
1. Omar Khadr was taken prisoner in 2002. The United States claimed he was a member of al-Qaida and said he met Osama bin Laden when he was 10. This made him an “intelligence treasure trove.” Al-Qaeda obliged the U.S. by describing Omar as a “lion cub” defender of the faith. In truth neither claim is real evidence of any definite organizational connection. The number of distinct resistence groups in Afghanistan runs into the dozens and al-Qaeda will breezily claim every one of them. According to General James Jones, who served as Obama’s National Security Adviser, the number of actual al-Qaeda operatives at any one time in Afghanistan is under 100 individuals. The assertion that 15 year old Omar was one them is problematic. But it was enough for the American government that he was with the resistance. Having complete power over both him and his media image, he could be made into anything the American government wanted. For instance, he is accused of throwing a grenade at American troops despite the fact that the reports of the 2002 action are confused and contradictory. There is no eye-witness evidence of Khadir’s behavior during the fighting. Nonetheless, one American soldier died at the time and Omar Khadr has been charged with his “murder.”
I think it is safe to say that Omar Khadr was a participant in the resistance to American invaders in Afghanistan. However, and this is the seminal point, no one contests the fact that he was 15 years old at the time of his capture. That made him legally a child and international law requires that child soldiers be treated as victims of an environment beyond their control, and not as an adult making a conscious choice to participate in a war. In other words, using a phrase that President Obama is fond of, according to international law this was not a “war of choice” for Omar. The Bush administration did not care for international law in general and so to get around this particular one, among others, it quite arbitrarily proclaimed that the fighters resisting U.S. troops in Afghanistan were not part of a “real” army and therefore not “real” soldiers. As nonsensical as this was, it allowed the U.S. military to deny Omar Khadr all legal rights and lock him away for eight years while they interrogated, threatened, tortured and abused him incessantly. Not surprisingly they got a “confession” out of Omar using these tactics and a military tribunal at Guantanamo Bay decided that the “confession” is admissible as evidence. President Obama has made no objection to this situation. Nor, for that matter, has the Canadian government, whose conservative majority has essentially abandoned one of its own citizens to his fate within a lawless system. In this case, at least, the old saying that military justice is a contradiction in terms is certainly correct.
2. Bradley Manning was an army intelligence analyst with U.S. forces in the Middle East who became deeply disturbed by what his job revealed to him. Essentially, it made him a front row witness to what he described as “incredible things, awful things.” This primarily entailed the careless killing of innocent civilians. As an act of conscience he gave the website Wikileaks over 200,000 classified documents and a number of videos showing attacks on Iraqi and Afghan civilians. Unfortunately, he confided in another American hacker who turned him into the government. He is presently in solitary confinement at the Marine base in Quantico, Virginia and charged with, among other things, “transmitting classified information to an unauthorized third party.” If convicted, and there seems little doubt that the military will have it any other way, he faces 52 years in prison.
The breech of security in this case was significant enough to draw comment from Secretary of Defense Robert Gates who asserted that what Manning had done was “grievously harmful.” Why so? Because, “the battlefield consequences of the release of these documents are potentially severe and dangerous to our troops, our allies and Afghan partners, and may well damage our relationships and reputation in that part of the world.” This was followed up by at least one Republican Congressman, Mike Rogers of Michigan, asserting that Manning is traitor and should be executed. On the other hand, Defense Department and administration spokesmen have been trying to minimize the effect of Manning’s action by asserting that the information he made public was “nothing new.” Just old data. It is hard to see how the government can have it both ways. But there can be little doubt that Gates was right about one thing. The information will “damage…our reputation in that part of the world” and elsewhere too. Those who have only now learned what the U.S. is doing should be appalled . Those who knew all along ought to have already been appalled.
A) The government leaders who have accused both Omar Khadr and Bradley Manning of egregious crimes would themselves be judged criminal in a world where they did not control the flow of information. As the human rights lawyer Francis Boyle has pointed out, the war in Afghanistan, as the one in Iraq, is illegal under international law. “Congress never declared war. The UN Security Council never authorized it under Article 51. And the Taliban never attacked the United States or authorized or approved such an attack.” As Stephen Lendman tells us in a fine piece on Manning published on August 7, 2010 (see the Manning link above), “FBI Director Robert Mueller, and CIA Deputy Director John McLaughlin admitted finding no link between the Taliban and 9/11.”
B) So what the heck are we doing in Afghanistan? What national interest is so mortally important that it has brought Khadr and Manning to the brink of destruction for resisting and exposing the actions of the United States? What is it that makes this a “war of necessity” according to President Obama? Here are some of the reasons that are tossed around:
1. Somehow, despite having nothing to do with the 9/11 attack, the Taliban are now among those “who are plotting to do so again.” According to the president, “if left unchecked, the Taliban insurgency will mean an even larger safe haven from which al-Qaeda would plot to kill more Americans.” Yet, after 9/11, the Taliban proved willing to negotiate the removal of Bin Laden from its territory. It was Bush Jr. who rejected that process. The present connection between the Taliban (which is not a monolithic organization) and al-Qaeda is often tenuous. Yet surely the present war with the Taliban only encourages what connection these fighters might have with al-Qaeda. Thus, a good argument can be made that al-Qaeda can be more readily combated by negotiating with the Taliban rather than trying, futilely, to destroy what is essentially an Afghan liberation movement.
2. It is all about oil and control of pipelines, etc. No doubt this has something to do with our actions, but one can compete for control of these things through commercial channels which is cheaper and far less lethal than making war in a country that has, in modern times, never been truly conquered and controlled.
3. It is those meddling pro-Israeli lobbies stirring up the pot. This too has some credence especially given our special interest politics. But the Zionists are probably only minor players in the formulation of policy for Afghanistan. The invasion of Iraq is another issue altogether.
Having thought about this, it seems to me that the process of policy formulation that landed us up to our necks in both the Afghan and Iraq quagmires was much more improvised than carefully thought through. My feeling is that you had people, none of whom gave a fig for international law, running around Washington for decades making policy in the Middle East from multiple angles: Cold War ideology, economic advantage, pro-Israeli enthusiasm, and religiously driven anti-Muslim fanaticism as well. Collectively, this produced a sixty plus year pattern of policies that put us in bed with multiple dictators and earned us the enmity of increasingly determined resistance movements. Finally, we got the 9/11 attacks. This, however, did not lead to any rethinking of our behavior in the Middle East. Rather, it led to a feeling of release. The U.S. was now justified in what almost appeared to be (at least for those in the White House) a joyful lashing out. This was accompanied by an exercise in sheer fantasy about what military might could accomplish in that part of the world.
If this is accurate, it is a mistake to believe that decisions made about policy in the Middle East are coherent, logical, and long term. They are more improvised and opportunistic. They are most often made by people who know nothing about the region and do not care about justice, rights and law either domestic or international. In short, the entire process which has brought the United States to its present plight is horribly short term, myopic and certainly unprincipled.
Conclusion – Does the public care?
Both Omar Khadr and Bradley Manning, as well as those who have rallied to their support, are betting that they can arouse public sentiment in their favor. In a letter to his Canadian lawyer, Khadr said that he wants to “show the world how unfair the system is…and show that the U.S. will eventually convict child soldiers.” Manning’s supporters have created a “Bradley Manning Support Network” to “Harness the outrage felt by millions” and to “raise awareness about his arrest, charges and court-martial.” The key question is, do most Americans, much less the world, really care?
The answer to this question is almost certainly a combination of a) no, most Americans do not care and b) yes they do care but want these two men either put against the wall and shot or sent to prison for the rest of their lives. On the assumption that most people are locally focused and apolitical I conclude that all but a minority are unaware or unconcerned about these cases because they do not seem to touch their lives. And, on the assumption that the government and its allied mass media control the information flow, I conclude that most of the minority who are aware and concerned share the official view that these men are dangerous enemies.
That leaves a minority of the minority who are aware of the greater implications for justice and rights involved in both cases; who are aware of the broader contextual circumstances that led to each man’s actions and the implications for future U.S. security implicit in those circumstances. That minority of a minority might total “millions” as Lendman suggests, but it is probably still far less than is needed to either obtain justice for Khadr and Manning or save the U.S. from its own blundering and criminal policies.
Civil Rights Takes a Hit An Analysis (5 March 2013) by Lawrence Davidson
Cultures can evolve over centuries and yet once their major parameters are set they have remarkable staying power. The notion that such parameters can be reversed in, say 48 years, is naive at best. Nonetheless, the presumption that 48 years can eliminate historical racial prejudice in the U.S. South is indeed the basis of the attitudes of a potential majority of the U.S. Supreme Court when it comes to the landmark 1965 Voting Rights Act.
Part I – The Background
The 1965 Voting Rights Act (reauthorized for an additional 25 years by Congress in 2006) requires nine southern states and parts of seven others (including Michigan, New Hampshire and New York) to submit any changes in local voting rules to the Justice Department for prior review. This was done to prevent voting procedures that discriminate against minority groups. The Justice Department has used the pre-clearance requirement, also known as Section 5, to object to more than 2,400 state and local voting changes since 1982. One might ask what are the odds that the federal government would raise frivolous and unjustified objections 2,400 times? Not likely. Thus, it is fair to conclude that racial discrimination still plays a role in the making of voting rules in many localities.
Why, after 48 years (counting from 1965), would that be so? A good part of the answer is that a culture of racism shaped the way of life, particularly in the southern United States. This was only briefly interrupted by the Civil War. After that war, there followed a period known as Reconstruction when the U.S. Armys occupation of the South interfered with ingrained racist practices. But Reconstruction lasted only a brief twelve years, until 1877, and thereafter the South reverted to racist ways under a legal regime commonly known as Jim Crow. That lasted until the Civil Rights movement of the 1960s. In other words, racism defined Southern culture and was prevalent in some of the North as well for hundreds of years.
This pervasive and long-lasting culture was reflected in local and regional laws. Laws, in turn, are to be understood as educational tools that tell citizens what society deems to be right and wrong behavior. If laws are consistently enforced over a long period of time most citizens will internalize these messages and they will become part of their moral code. Except for the 12 years of Reconstruction the South had known nothing but racist rules of behavior right up to the middle of the 20th century. And these, as a consequence, were thoroughly internalized.
What the Civil Rights laws did in the 1960s was to suddenly, and partially, reverse these educational messages. They did so partially because these laws concentrated on making discrimination illegal within the public sphere. You could no longer segregate public schools, hotels, restaurants and the like, as well as government offices. Today, African-Americans can go into the South and check into a hotel, eat at a restaurant, shop where they want to without much trouble. However, if he or she does happen to have trouble, there is recourse under the law to deal with the problem. That has now been the case for 48 years. Yet this is not nearly enough time to have the message that racial discrimination is wrong penetrate deeply into the private sphere of a region where the opposite attitude has long been the default position. My guess is that among some Southern citizens, the new egalitarian way of thinking is superficially there, and among others it is not there at all. What this means is that, if you withdraw the law, in this case Section 5, reversion to old discriminatory ways will likely be rapid.
Part II – The Supreme Court Case
An effort to rescind Section 5 of the Voting Rights Act is now under way. The political officials of Shelby County, Alabama, have brought suit, and their case (Shelby County v. Holder) is now being heard by the United States Supreme Court. Bert W. Rein, Shelby Countys attorney, argued that Alabamas voter registration rolls show that minorities are now fairly represented and so the law is unnecessary in that state. Justice Stephen G. Breyer suggested that Reins assertion demonstrates that the statute is working. Breyers statement translates into the working assumption that Alabamas good record of minority registration is there only because the law is there. Chief Justice John G. Roberts Jr. asked if the Justice Department lawyers defending the law are asserting that the citizens of the South are more racist than those in the North? It is a question that calls into question the Chief Justices knowledge of U.S. history. Historically, Southerners certainly have been more racist than many Northerners. For Bert Rein to prove his case, he should have to demonstrate that the people of Alabama, and particularly Shelby County, are now able to sustain racial equality in the public sphere without any federal oversight. On this account it is to be noted that in 2008 the Justice Department sued the state of Alabama, including Shelby County, for refusing to stop using overly large voting districts that made it almost impossible for local minority groups to elect members to city or local councils. Therefore, Justice Sonya Sotomayor observed that some parts of the South have changed. Your (Reins) county pretty much hasnt. You may be the wrong party bringing this (suit).
Rein also argues that Section 5 is unconstitutional because it singles out only certain states and regions for review while the Constitution is based on the equal application of the law. This argument has some logic to it. However, the thrust of this logic would not be to take Section 5 requirements away from areas that may still require them, but to extend the law to the entire country.
However, there are four, and perhaps five, Supreme Court justices who are less interested in the constitutional voting rights of minorities than in the rights of the states to define voting rules. This attitude caused Robert Parry, in an article posted on the Consortium News website, to describe this potential majority as neo-Confederate. Justice Anthony M. Kennedy has apparently taken just such a states rights position and described Alabama and other states as independent sovereign entities. He also asserted that times change and while the provision (Section 5) was necessary in 1965, this is 2013. Of course, times do change, but how long does it take to change a culture? The most acerbic opinions came from Justice Antonin Scalia. Scalia is generally the intellectual anchor of the courts conservative majority. He is also quite pugnacious and such aggressiveness can sometimes serve as cover for weak arguments. As in the case of Roberts, we can ask just how much history does Scalia know? Thus, in the Courts arguments on Section 5, Justice Scalia asserts that the Voting Rights Act represents the perpetuation of racial entitlement. Actually, it is more historically accurate to assert that this act is a corrective to aggressive perpetuation of white racial entitlement. Scalia went on to assert that Section 5 had created black (voting) districts by law. It just so happens that Scalia led the way in disallowing a suit (Vieth v. Jubelirer) in 2004 against the Republican-controlled Pennsylvania General Assembly for the partisan redistricting of congressional voting districts. Therefore, until he is ready to condemn such extensive gerrymandering on the part of Republicans, his complaining about black districts sounds like hypocrisy. In these apparent neo-Confederate attitudes, Justices Kennedy and Scalia are joined by Justices Roberts, Thomas and perhaps also Alito, whose final stance on Section 5 is not yet clear.
Part III – The Constitution as a Text
If the questions and answers of the justices are indicators of their positions, we have to assume that four, and perhaps five, out of the nine are ready to strike down Section 5 of the Voting Rights Act. Among the many messages that one can take away from such an action, an important general one is that socio-political progress is not inevitable. In terms of our social and political arrangements, the past and its faults are not dead and gone. They can come back. And, because the Civil Rights laws only purged the public sphere of overt racism, and have not had time to reorient the private sphere, there are plenty of Americans out there who are ready to turn back the clock on civil rights. There are even more Americans who dont care one way or another and therefore would passively stand by while this turnabout takes place.
But what about the Bill of Rights? Isnt that supposed to keep us all free? Well, the Bill of Rights was operative, at least in theory, during the period of the nations history when slavery, and then Jim Crow practices, were a daily way of life for African- Americans. The truth is that the Constitution is not an automatic protection of rights. That is because it is a text and, as such, must be interpreted. You can interpret it in a progressive and humane way that extends rights in a generous and inclusive manner, or you can interpret it in a restrictive way that only extends rights selectively.
It is dangerous to become complacent about rights. They dont come from God, they come from the community we belong to. That means it is dangerous to become complacent about who is running the community. Yet it is clear from the history of general voter participation in elections that the majority of Americans do not pay close attention to politics, and even those who do are often all too easily swayed by everything from personal appearance to silly propaganda. No, there is nothing inevitable about socio-political progress, and the Supreme Court may be about to prove that this is so.