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Legal History Informs What We Need to Do. A Peaceful Revolution is How We Do it.

Wars result from poor history learning. We must learn from our history and embrace discomfort to create permanent social change to create justice for all humanity.

Demonstration
Demonstration By Jonathan Stutz

“And make no mistake: no profession is more honorable than law. The defenders of the Constitution, the guardians of our liberty, the advocates of just causes, no matter how unpopular, the protectors of the powerless, the wise counselors of our society – that is the role of American lawyers.”

–Bob Wright, University of Virginia School of Law Graduation 2002

This part of Bob Wright’s commencement message spoke to me because it addressed what I believed as a younger, new, idealistic lawyer, but what I still believe today after over 30 years in practice, despite perhaps sometimes becoming somewhat jaded in the daily grind of the business of law practice. Consequently, rekindling my own idealism, I cannot sit by silently and simply watch what is happening in the United States and around the world.

When I was in High School, I was lucky to take two classes from our most eccentric teacher: Introduction to Philosophy and Russian History. In the classroom, this teacher had taken quotes, put them on poster boards, and hung them from the ceiling. Two quotes stood out to me then. “War results from poor history teaching” and “War results from poor history learning.”

Over time, the word “War” has come to mean human crisis … human suffering … human inequity.

Whether we use the term War or Human Suffering, the essential element is humanity.

Humanity is defined as compassionate, sympathetic or generous behavior or disposition – the quality or state of being humane. 

Compassionate. Sympathetic. Generous

We, humans, created this definition.

We don’t need to talk here about the opposite nor discuss the behavior of those who are failing to demonstrate the qualities of being human. I see it. I’m taken aback by the behavior. I stare at the television screen in shock.

What’s more important today is that we come together as individuals, as citizens, as Humans to stare inequity in the face and with our individual voices, and with a unified voice say, “NO MORE.”

Over 200 years ago, this country was founded on that principle: “NO MORE.”

Revolutionaries took a stand against tyranny and oppression. Our country was founded on the Freedom of being human. Human beings are not perfect and our history reveals the imperfection every step of the way. But we can, and should, do better. The application of these principles, in that older time was certainly deeply flawed. But the principle stands. It is “self-evident.” No more “poor history learning.”

A lawyer’s world is painted with the stories of legal cases and constitutional amendments. The history of our laws gives us perspective and meaning.

The inequality of race relations is plain throughout the history of the United States. It is a history that should never have been, but it was. Every lawyer studied this history and knows it well. It is this history of inequity for people who just happen to have more melanin in their skin that is at the forefront of what is happening today. But we need to learn from our history.

The American revolution declared freedom for “We the People” and adopted these words:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”

Three significant points come from this one sentence.

“All men.” I’m ignoring the issue of gender for today and let’s just agree that the word “Men” means human.

“Created equal.” Equal means equal, not less than or more than. This is a simple math problem.

“Life, Liberty, and the Pursuit of Happiness.” Life is an absolute right and no one, no government, should threaten it. Liberty is as precious as life because to have no liberty is to have no life. You aren’t guaranteed happiness, but you have the right to pursue it.

These were wise words. But the ideals underlying these words did not blossom immediately.

Eighty-one years later, Dred Scott, a slave, challenged the law, based upon these ideals.  After a convoluted history of moving to and from slave and non-slave states, he finally sought his freedom through the legal system. He eventually won at trial and acquired his freedom. That freedom was short lived because his “owners” appealed to a higher court and the decision was reversed.

The case made its way to the United States Supreme Court, which ruled against Dred Scott, stating that a person of African descent was not a US Citizen and not entitled to the protections of the federal legal system. The decision also went on to state that the Constitution protected the property rights of its citizens and because Dred Scott was the owner’s “property,” he must remain the owner’s slave and property. (Dred Scott v. Sandford, 60 U.S. 393 (1856).)

Then we had a war.

The Civil War resulted, in part due to this decision in Dred Scott.

I want to pause here because the other night, as I was watching the news reporting on the massive demonstrations across this country, one of the leaders of the demonstration in Washington D.C. made a comment to the effect that this is the first time that we have a movement large enough to effect change beyond lip service followed by return to business as usual.

It is not the first time.

We actually went to War on this issue once before.

Are we potentially at another tipping point where war is possible? Yes, we are because so many have failed to learn from our own history. It may not be a war of the armies of the sovereign states, lining up in quaintly named battles, but it may be the modern version of civil war with riots, destruction, guerrilla rebel groups, retaliatory aggression, and the general trampling of civil rights. The federal military v. American citizens. Has it already begun? Can we learn from history?

The Civil war started in 1861, four years after the Dred Scott decision and three years after Dred Scott died.

During the Civil War, Lincoln issued the Emancipation Proclamation which declared all slaves free in the rebellious states. In other words, slaves in states which had not rebelled were not freed. Slaves in states who were no longer rebelling were not freed. It wasn’t until after the war ended in 1865 that the 13th Amendment was adopted abolishing slavery once and for all. The ideal was established, though only on paper.

This brings us to Homer Plessy in 1896, thirty-one years after the Civil War. Homer Plessy was  7/8 white and 1/8 black. He purchased a first-class ticket on a train. He boarded and sat in a vacant seat in a car marked “White Only.” He was arrested and imprisoned. The train had cars for white people only and cars for black people only. Louisiana law banned whites from sitting in the black cars and banned blacks from sitting in the white cars. The case eventually made its way to the United States Supreme Court.

The Supreme Court ruled against Homer Plessy and established the “separate but equal” doctrine which led to massive segregation from separate drinking fountains to separate schools.  The Supreme Court said that the amendments that resulted from the Civil War protected only political and civil rights, such as voting and serving on juries, but did not guarantee equal social rights, such as sitting anywhere on a train. The Court also went on to say that the 13th Amendment abolished slavery and did nothing else. Plessy’s arguments that separate treatment stigmatized an entire group of people as inferior fell on deaf ears.

One lone voice on the Supreme Court disagreed. Justice John Marshall Harlan highlighted that segregation created a class system that could not be tolerated under the U.S. Constitution. But one dissenting opinion on the Supreme Court does not make law. The remaining eight voices established the law that separate was still equal. (Plessy v. Ferguson, 163 U.S. 537 (1896).)

What followed the Plessy case was a series of laws in many states to keep people of color from having a voice. Using social separation, far from equal, the laws were designed to prevent people of color from having any political or civil voice. Even worse, the system perpetuated a social class destined for poverty, generation after generation, assuring little practical chance for the full pursuit of happiness. That social class persists, in practice, in the whole country, not just in the formerly, formally segregated states.

Then in the 1940’s, another War highlighted the existence of racism in this country and revealed that racism was not restricted to persons of African descent. Mass numbers of Japanese Americans were incarcerated into Concentration Camps during World War II, stripped of their homes, their property, their liberty, and the pursuit of happiness. The United States Supreme Court, again, turned a blind eye and upheld the forced relocation. However, for the first time, a Justice of the Supreme Court used the word “racism.”  Justice Frank Murphy wrote his dissenting opinion stating that the treatment of Mr. Korematsu went “over ‘the very brink of constitutional power’ and [fell] into the ugly abyss of racism.” He dissented because he felt the Supreme Court decision legalized racism. (Korematsu v. United States, 323 U.S. 214 (1944).)

Did it take a racist act against a group of people who were not of African descent to finally get to the heart of protecting humanity? It may have. Because it wasn’t until the mid-50’s that this country finally re-addressed the separate but equal doctrine.

In 1954, Justice Harlan’s point of view from 1896 was finally adopted in Brown v. Board of Education. The Brown court agreed that separate was not equal. The result was desegregation, bussing, and still more demonstrations and riots and the advent of affirmative action. (Brown v. Board of Education, 347 U.S. 483 (1954).)

But let’s face reality. The problem is systemic and unresolved still in 2020. It took a pandemic, plus utter lack of leadership, to finally get to a tipping point where, now, the entire world is literally up in arms. George Floyd is the spark.

Racism is not limited to any one group of people. Nor is it limited to any geographic area. The recent demonstrations world-wide make it clear that people who are even slightly different from those in power are treated with inequity. But in this country, even if your particular ancestors were not treated equally, those of African descent have suffered the hardest and longest. Carrying the banner “Black Lives Matter” is not a limitation. It is a clear demonstration that those who have been oppressed the longest and most cruelly should take the lead. But if you are a person who has ever been suppressed, oppressed, held back, or mistreated because of anything that makes you different, grab the banner “Black Lives Matter” and stand with everyone.

The history of case law and treatment of those of African descent reveal the systemic prejudice and racism that has existed far too long in this country. If we want America to be great and be the leader it should be on the world stage, every person in this country needs to take up the banner.

Is there a War coming? Possibly. But let that War be one without weapons. Let it be the War for Humanity. It is time for the revolution, but it can be a revolution without violence. A Peaceful Revolution. Rioting and violence may even be justified, but as a practical and inevitable matter, it results in reaction, convenient anti-change polarization, civil oppression, and the further curtailment of the civil liberties of all Americans. We are already seeing it.

What will make a difference is for each person’s consciousness to be elevated. It requires speech, free speech and free press. It requires giving names to each person who suffers the loss of dignity. It requires retired military men and women to speak out against tyranny and trampling of basic constitutional rights. It requires caring police officers to join the fight, take the knee, and march alongside peaceful protestors. And, it requires us lawyers, to set aside business, and remember our noble purpose to be the “guardians of our liberty” and “advocates of just causes.”

It requires us to tell the stories of history and the stories of ordinary people who suffer the loss of dignity. We learn from stories. We remember through stories. The stories must be told and retold. We must tell the stories that create discomfort. We must hear the stories that give us discomfort. It is only through these stories and our discomfort that change will actually happen.

I am a lawyer. I’m proud to be a lawyer. To my colleagues, this is the opportunity for you to take one small step to show the world that we, lawyers, are the defenders of the Constitution and we must jealously guard Constitutional rights to protect the Rights of Humanity – all of Humanity.

We must join the Peaceful Revolution.

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