Harvard University Press Blog

The Economics of Voting Rights

Last week the U.S. Supreme Court heard arguments in Shelby County v. Holder, a case challenging a major provision of the Voting Rights Act of 1965. That provision, Section 5, holds that before making changes to voting procedures, jurisdictions in all or part of 16 states must convince the federal government that the changes won’t amount to “denying or abridging the right to vote on account of race or color.” Despite the law having been repeatedly upheld by Congress—with overwhelming support as recently as 2006—Shelby County, Alabama, argues that the law is outdated, unnecessary, and unfair.

After oral arguments and questioning made the position of the Court’s conservative Justices clear, it’s widely assumed that Section 5 will be struck down, in what Court-watcher Linda Greenhouse characterizes as an all but certain “evisceration” of the Voting Rights Act. For those seeking to understand the case, its place in the Roberts Court’s pattern of rulings on the “sordid business” of race, and how it’s happened that the Court now seems poised to give itself a power that should reside with Congress, Greenhouse’s reporting is a great place to start.

Here though, we’d like to consider a recent study of the Voting Rights Act that shows its effects to have been even broader than is often understood. The Act’s standing as a watershed moment for the extension of civil rights in this country is of course a given, but in a new book, economic historian Gavin Wright shows that the VRA was also extremely significant to the advancement of economic equality in the covered regions. In Sharing the Prize: The Economics of the Civil Rights Revolution in the American South, Wright outlines the commonly overlooked connections between the civil rights movement and the struggle for economic justice, arguing that breakthroughs like the VRA were an economic boon to African Americans with no commensurate setback for southern whites.

A key contribution of Wright’s book is the simple reminder that, on the ground and in the moment, economic concerns were always part of the push for equal rights:

From the bus boycotts of the 1950s to the sit-ins of the early 1960s, demands for equal access to services were almost always coupled with demands for jobs providing those services. In December 1955 the Montgomery Improvement Association called for “employment of Negro bus operators in predominantly Negro residential sections,” a demand that was actually quite radical for the time because of the quasi-legal powers bus drivers held. Flyers like the one [pictured below] from Warrenton, North Carolina, were circulated during public accommodations disputes throughout the region. The appeal for “equal opportunity for employment” and the complaint that stores “do not hire any Negroes in responsible jobs” are, if anything, more prominent than the demand for fountain service. In Birmingham, pickets wore sandwich boards reading “Don’t buy where you cannot be a salesman” and continued their pressure until each downtown department store hired at least one black clerk.

Honoring the Work of Patricia Williams

This Friday, Columbia Law School’s Center for Gender and Sexuality Law will host a day-long symposium honoring the work of Patricia Williams, the school’s James L. Dohr Professor of Law. Each year the symposium honors a senior scholar who has made outstanding contributions to the field of gender and sexuality law, and Williams now joins past honorees Martha Nussbaum, Judith Butler, and Justice Ruth Bader Ginsburg. Upon granting her one of its fellowships (the so-called “genius grant”) in 2000, the MacArthur Foundation recognized Williams for having created “a new form of legal writing and scholarship that integrates personal narrative, critical and literary theory, traditional legal doctrine, and empirical and sociological research.”

We’ve twice published books by Williams, including her first, 1991’s The Alchemy of Race and Rights. From its very first lines, Alchemy announced itself as a deeply personal work, braver and far more vulnerable than most anything else on a university press’s law list:

Since subject position is everything in my analysis of the law, you deserve to know that it’s a bad morning. I am very depressed. It always takes a while to sort out what’s wrong, but it usually starts with some kind of perfectly irrational thought such as: I hate being a lawyer.

That very incongruence—the disconnect between Williams’ writing and the impersonal analysis that would generally be expected from the work of a law professor—reflects the ideas of the book itself, run through with defiance of society’s need to limit by categorization.

In the book’s opening essay Williams recalls being pressed by her sister to explain what the then-in-progress Alchemy would be about. Her reply:

I am interested in the way in which legal language flattens and confines in absolutes the complexity of meaning inherent in any given problem; I am trying to challenge the usual limits of commercial discourse by using an intentionally double-voiced and relational, rather than a traditionally legal black-letter, vocabulary. For example, I am a commercial lawyer as well as a teacher of contract and property law. I am also black and female, a status that one of my former employers described as being “at oxymoronic odds” with that of the commercial lawyer. While I certainly took issue with that particular characterization, it is true that my attempts to write in my own voice have placed me in the center of a snarl of social tensions and crossed boundaries. On the one hand, my writing has been staked out as the exclusive interdisciplinary property of constitutional law, contract, African-American history, feminist jurisprudence, political science, and rhetoric. At the same time, my work has been described as a “sophisticated frontal assault” on laissez-faire’s most sacred sanctums, as “new-age performance art,” and as “anecdotal individualism.” In other words, to speak as black female, and commercial lawyer has rendered me simultaneously universal, trendy, and marginal. I think, moreover, that there is a paradigm at work, in the persistent perceptions of me as inherent contradiction: a paradigm of larger social perceptions that divide public from private, black from white, dispossessed from legitimate. This realization, while extremely personal, inevitably informs my writing on a professional level.

Her willingness to confront rather than conform to that “snarl of social tensions and crossed boundaries” gave the book a deep resonance while also establishing an interdisciplinary approach that became a model for generations of scholars. Alondra Nelson, of Columbia’s Department of Sociology and Institute for Research on Women and Gender, and a moderator of one of the symposium’s panels, recalled for us the book’s influence on her as an undergraduate: “As an aspiring academic, I was captivated by this book that featured its fearless black feminist author on the cover; she was a mentor from afar. I was forever transformed by the book’s equal measures of poetry and prose, erudition and plain-spokenness, wit and candidness.”

What Is Law?

For decades we’ve had the privilege of working with the legal scholar Ronald Dworkin, who passed away yesterday at 81. Widely considered the most influential legal philosopher of his generation, Dworkin’s work was built on his belief that morality must underlie the interpretation and application of our abstract principles of law. In one of his best-known works, 1986’s Law’s Empire, Dworkin offered a framework for the analysis of critical issues in law, addressing in the process the dominant but—to his mind—insufficient theories that then held sway. In the following excerpt from Law’s Empire he outlines the project’s aim.

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This book is about theoretical disagreement in law. It aims to understand what kind of disagreement this is and then to construct and defend a particular theory about the proper grounds of law. But of course there is more to legal practice than arguments about law, and this book neglects much that legal theory also studies. There is very little here about issues of fact, for example. It is important how judges decide whether a workman has a legal right to damages when a fellow employee drops a wrench on his foot, but it is also important how a judge or a jury decides whether the workman (as his employer claims) dropped the wrench on his own foot instead. Nor do I discuss the practical politics of adjudication, the compromises judges must sometimes accept, stating the law in a somewhat different way than they think most accurate in order to attract the votes of other judges, for instance. I am concerned with the issue of law, not with the reasons judges may have for tempering their statements of what it is. My project is narrow in a different way as well. It centers on formal adjudication, on judges in black robes, but these are not the only or even the most important actors in the legal drama. A more complete study of legal practice would attend to legislators, policemen, district attorneys, welfare officers, school board chairmen, a great variety of other officials, and to people like bankers and managers and union officers, who are not called public officials but whose decisions also affect the legal rights of their fellow citizens.

Some critics will be anxious to say at this point that our project is not only partial in these various ways but wrong, that we will misunderstand legal process if we pay special attention to lawyers’ doctrinal arguments about what the law is. They say these arguments obscure—perhaps they aim to obscure—the important social function of law as ideological force and witness. A proper understanding of law as a social phenomenon demands, these critics say, a more scientific or sociological or historical approach that pays no or little attention to jurisprudential puzzles over the correct characterization of legal argument. We should pursue, they think, very different questions, like these: How far, and in what way, are judges influenced by class consciousness or economic circumstance? Did the judicial decisions of nineteenth-century America play an important part in forming the distinctive American version of capitalism? Or were those decisions only mirrors reflecting change and conflict, but neither promoting the one nor resolving the other? We will be diverted from these serious questions, the critics warn, if we are drawn into philosophical arguments about whether and why propositions of law can be controversial, like anthropologists sucked into the theological disputes of some ancient and primitive culture.

This objection fails by its own standards. It asks for social realism, but the kind of theory it recommends is unable to provide it. Of course, law is a social phenomenon. But its complexity, function, and consequence all depend on one special feature of its structure. Legal practice, unlike many other social phenomena, is argumentative. Every actor in the practice understands that what it permits or requires depends on the truth of certain propositions that are given sense only by and within the practice; the practice consists in large part in deploying and arguing about these propositions. People who have law make and debate claims about what law permits or forbids that would be impossible—because senseless—without law and a good part of what their law reveals about them cannot be discovered except by noticing how they ground and defend these claims. This crucial argumentative aspect of legal practice can be studied in two ways or from two points of view. One is the external point of view of the sociologist or historian, who asks why certain patterns of legal argument develop in some periods or circumstances rather than others, for example. The other is the internal point of view of those who make the claims. Their interest is not finally historical, though they may think history relevant; it is practical, in exactly the way the present objection ridicules. They do not want predictions of the legal claims they will make but arguments about which of these claims is sound and why; they want theories not about how history and economics have shaped their consciousness but about the place of these disciplines in argument about what the law requires them to do or have.

Both perspectives on law, the external and the internal, are essential, and each must embrace or take account of the other. The participant’s point of view envelops the historian’s when some claim of law depends on a matter of historical fact: when the question whether segregation is illegal, for example, turns on the motives either of the statesmen who wrote the Constitution or of those who segregated the schools. The historian’s perspective includes the participant’s more pervasively, because the historian cannot understand law as an argumentative social practice even enough to reject it as deceptive, until he has a participant’s understanding, until he has his own sense of what counts as a good or bad argument within that practice. We need a social theory of law, but it must be jurisprudential just for that reason. Theories that ignore the structure of legal argument for supposedly larger questions of history and society are therefore perverse. They ignore questions about the internal character of legal argument, so their explanations are impoverished and defective, like innumerate histories of mathematics, whether they are written in the language of Hegel or of Skinner. It was Oliver Wendell Holmes who argued most influentially, I think, for this kind of “external” legal theory; the depressing history of social-theoretic jurisprudence in our century warns us how wrong he was. We wait still for illumination, and while we wait, the theories grow steadily more programmatic and less substantive, more radical in theory and less critical in practice.

The (Re)Trial of Socrates

This Thursday, at a fundraiser for the National Hellenic Museum, Socrates will once again have his day in court—or the Palmer House Hilton Hotel’s Grand Ballroom, as it were. In what’s being billed as “the biggest freedom of speech case of all times” and “the most significant legal appeal in nearly 2,500 years,” some of the country’s foremost legal minds will rule on the charges facing the father of Greek philosophy. The Honorable Richard A. Posner, Seventh Circuit Appeals Court judge and many-time HUP author will head a team of three judges presiding over the affair; the City of Athens will be represented in its case against Socrates by former U.S. District Attorney Pat Fitzgerald and former prosecutor Patrick M. Collins.

All involved would do well to heed the advice Socrates offered at trial, as set down by Plato in The Apology. Those moving to convict him, he warned, would only injure themselves. From Volume 36 of the Loeb Classical Library, in Harold North Fowler’s translation, with minor concession to this week’s proceedings:

Now I am going to say some things to you at which you will perhaps cry out; but do not do so by any means. For know that if you kill me, I being such a man as I say I am, you will not injure me so much as yourselves; for neither Pat Fitzgerald nor Patrick M. Collins could injure me; that would be impossible, for I believe it is not God's will that a better man be injured by a worse. He might, however, perhaps kill me or banish me or disfranchise me; and perhaps he thinks he would thus inflict great injuries upon me, and others may think so, but I do not; I think he does himself a much greater injury by doing what he is doing now—killing a man unjustly. And so, men of Athens, I am now making my defence not for my own sake, as one might imagine, but far more for yours, that you may not by condemning me err in your treatment of the gift the God gave you. For if you put me to death, you will not easily find another, who, to use a rather absurd figure, attaches himself to the city as a gadfly to a horse, which, though large and well bred, is sluggish on account of his size and needs to be aroused by stinging. I think the god fastened me upon the city in some such capacity, and I go about arousing, and urging and reproaching each one of you, constantly alighting upon you everywhere the whole day long. Such another is not likely to come to you, gentlemen; but if you take my advice, you will spare me. But you, perhaps, might be angry, like people awakened from a nap, and might slap me, as Patrick M. Collins advises, and easily kill me; then you would pass the rest of your lives in slumber, unless God, in his care for you, should send someone else to sting you. And that I am, as I say, a kind of gift from the god, you might understand from this; for I have neglected all my own affairs and have been enduring the neglect of my concerns all these years, but I am always busy in your interest, coming to each one of you individually like a father or an elder brother and urging you to care for virtue; now that is not like human conduct. If I derived any profit from this and received pay for these exhortations, there would be some sense in it; but now you yourselves see that my accusers, though they accuse me of everything else in such a shameless way, have not been able to work themselves up to such a pitch of shamelessness as to produce a witness to testify that I ever exacted or asked pay of anyone. For I think I have a sufficient witness that I speak the truth, namely, my poverty.

This past weekend, Fitzgerald discussed the case with NPR’s Scott Simon and explained his efforts on behalf of Athenians:

 

Give him liberty or give him hemlock.

Aaron Swartz and Prosecutorial Discretion

In the sad story of Aaron Swartz, the 26-year-old internet pioneer, organizer, and activist who took his own life on January 11th, many have questioned the doggedness with which federal prosecutors were pursuing him. Swartz, who was under indictment for allegedly downloading a large number of papers from the JSTOR database with the intention of making them freely available online, faced 13 felonies for which he was threatened with up to 50 years in prison. Despite JSTOR itself urging that the charges be dropped, prosecutors apparently insisted on prison time and a guilty plea on all counts as conditions of any bargain.

The general consensus has been that the government sought to make an example of Swartz, and that the case drove his turn to suicide at least in part. The Harvard Law School Professor Lawrence Lessig, a close friend and collaborator of Swartz’s, highlights the seeming injustice of the prosecutorial tenacity:

For remember, we live in a world where the architects of the financial crisis regularly dine at the White House—and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”

In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million-dollar trial in April—his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge. And so as wrong and misguided and fucking sad as this is, I get how the prospect of this fight, defenseless, made it make sense to this brilliant but troubled boy to end it.

Writing at The Verge, Tim Carmody offers an answer, detailing the symbolic work the justice department likely expected their prosecution of Swartz to do:

Aaron had become a target for investigation by the federal government. He was on file as a “hacker” who was willing to exploit gaps in the law and in networks in order to make his point… [In the JSTOR case], the Secret Service and US Attorney’s office, led by Assistant US Attorney Stephen Heymann and his boss Carmen Ortiz, had both the discretion and the institutional incentives to run wild on him. And that, with many, many ellipses, is how we got here… The government didn’t need to prosecute a big fish if it could make Aaron look like one. The police don’t need to stop drug kingpins if they can make anyone in a car with drugs look like one. Turning disobedience into felonies becomes the easiest thing in the world. The prosecutors wanted headlines, conviction statistics, promotions, and to make the public feel that computer crime was important and dangerous but something was being done about it. Aaron Swartz, because of his prominence in the tech community and history with PACER and SOPA, was just notorious enough to get the job done. Aaron Swartz was linkbait.

Limiting the Horror of War

From our modern vantage, warfare of the past often appears barbaric. The close quarters of combat and high death counts, all conducted at the whim of rulers, can strike us as monstrously inhumane. And yet, as James Whitman argues in The Verdict of Battle, pitched battles of the past were far more effective at containing their violence than today’s sprawling wars of idealism. In the article and video below, Whitman details the evolution of warfare, and highlights some lessons of the past.

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Pitched battles are gruesome events. Consider the description of the aftermath of the Battle of Solferino in 1859 given by Henri Dunant, the founder of the Red Cross: “The poor wounded men... were ghastly pale... They begged to be put out of their misery, and writhed with faces distorted in the grip of the death-struggle...” When we read such accounts it is difficult to imagine that anybody could regard a pitched battle with anything but horror.

Nevertheless for many centuries our ancestors thought of pitched battles as a good thing—in fact, a blessing for society. A pitched battle may be nightmarish for the soldiers who fight it, but it is a contained way of settling an international dispute. If a conflict can be decided by a day of concentrated killing on the battlefield, then violence can be prevented from spilling over to the rest of society. In fact, for many centuries staging a battle was deemed to be a perfectly acceptable, and highly desirable, legal procedure. In the Middle Ages, pitched battles were regarded as “judgments of God,” lawful ways of calling upon the Almighty to decide an international dispute. In the eighteenth century, they were regarded as settlement procedures, fought under a “tacit contract of chance.” Eighteenth-century battles were a kind of lawful wager, by which the warring sovereigns agreed to allow their conflict to be settled by the “chance of arms.”

 

To modern lawyers, such attitudes seem incomprehensible and repellant. We cannot accept the idea that international disputes could be resolved by deliberately staging a mass killing on a battlefield. The modern law of war is humanitarian law. It is founded on the proposition that war is a curse, and that conflicts should be resolved through peaceful means, with war used only as a desperate last resort.

Big Sticks and American Values

As we’re all no doubt aware, this week the eleventh anniversary of the 9/11 attacks was marked by a new surge of violence and protest against Americans abroad, including the killing of J. Christopher Stevens, the U.S. ambassador to Libya. Embassies of the U.S. and its allies remain under siege across much of the Muslim world, in a process set in motion by the release of an apparently American-made film denigrating the prophet Muhammad. Since its very first spark, this round of violence has been made fodder for political dispute in the American presidential contest, and it’s bound to remain a focus in the weeks ahead.

Writing for Al Jazeera, Columbia University professor and HUP author Hamid Dabashi notes the parallels between these events and the Iranian Hostage Crisis of 1979, which also became a force in an American presidential election. Dabashi cautions against letting political pressures dictate American response:

The trigger-happy Republicans are pushing President Obama to do something rash. Presidential candidate Mitt Romany has accused President Obama of “sympathizing” with the attackers, as Aljazeera reports that “US warships steam towards Libya coast.” This is after Sarah Palin has criticised president Obama’s shortcoming and urged him “to grow a Big Stick.” The depth of this woman’s banality seems to have no limit.

The last thing that President Obama wants to do now is what President Carter did in 1979 and try something foolish like “Operation Eagle Claw.” If I were President Obama I would invite former President Carter to the White House and hang out with him for a weekend. President Obama must do absolutely nothing.

Dabashi is equally concerned with what he sees as a concerted effort by militant factions to take this offensive film as an opportunity to reverse the momentum of the Arab Spring and “derail a world historic succession of revolutions”:

Demonstrations in both Benghazi and Cairo have categorically denounced the violence that has resulted in the death of Ambassador Christopher Stevens. It is imperative that these denunciations be amply noted—as indeed President Morsi put it succinctly:  “We Egyptians reject any kind of assault or insult against our prophet. I condemn and oppose all who... insult our prophet. [But] it is our duty to protect our guests and visitors from abroad... I call on everyone to take that into consideration, to not violate Egyptian law... to not assault embassies.”

This is the difference between Khomeini n 1979 and Morsi in 2012. Beware the false fury. The US has done enough atrocities around the globe to be blamed for just about everything—but this is a different season—this is the season of the Green Movement and the Arab Spring—do not be fooled by these zealotries of the fanatics who are trying to steal the revolution. Diplomatic immunity of even a global hubris like the United States must remain sacrosanct for civilised life to be possible.

Dabashi calls on Obama to let the Muslim world itself denounce these attacks and restore order. “This is the season of the Arab Spring,” he writes, and “binary banalities of fanatics on both sides of the divide cannot derail the course of history anymore.”

Of course, clear-eyed observers of American politics have reason to worry that the aggression with which Mitt Romney has sought to employ these events to reverse Obama’s gains in the polls may yet ensure a wielding of the “big stick” that Palin calls for. Indeed, the contest has dramatically shifted from debating the economy to chest-thumping over the projection of “American values.” Jeremy Waldron, author of The Harm in Hate Speech, discussed the use of that phrase in diplomatic and political rhetoric since the attack in Libya with Brian Lehrer today:

 

As Waldron and Lehrer discuss, American law does not allow the prohibition of hateful and deliberately provocative speech like that of the anti-Islamic film at the heart of this week’s turmoil, but the American government and its citizens are nonetheless right to denounce and reject such speech in the most certain terms possible. Still, as Waldron highlights, while there are different views about the value of hate speech, violence is never an appropriate response.

Judge Richard Posner on the "Goofy" Republican Party

Richard A. Posner, judge on the United States Court of Appeals for the Seventh Circuit, University of Chicago Law School lecturer, and many-time HUP author, has long been an influential voice in American legal theory, particularly with respect to economics. Though known for being thoroughly Chicago School in ideology, his 2008 book A Failure of Capitalism was a surprise to many who’d considered Posner unlikely to deliver a book described as “a roundhouse punch to the proposition that markets are self-correcting.” But, then again, people are used to surprises from Posner. Writing in his Wall Street Journal Ideas Market blog just last month, Christopher Shea described how Posner “continues to amaze”:

I don’t know at what point he gave up on the idea of being nominated to the Supreme Court, but he opted instead to flout all of the conventional wisdom about what a federal appeals-court judge should do (and achieve near-total professional freedom in the process): He blogs, he opines, he dissects the reaction of banks, regulators and politicians to the financial crisis in books—and he takes part, as if he were just another pundit, in a Slate “Breakfast Table” on the latest Supreme Court opinions.

Indeed, in his June 27th “Breakfast Table” post, Posner offers fairly direct remarks on Supreme Court Justice Antonin Scalia’s dissenting opinion in Arizona v. United States, the high-profile dispute over the constitutionality of Arizona’s aggressive stance towards undocumented immigrants. Posner quotes several of Scalia’s jabs at the Obama administration before deeming them “fighting words.”

The nation is in the midst of a hard-fought presidential election campaign; the outcome is in doubt. Illegal immigration is a campaign issue. It wouldn't surprise me if Justice Scalia's opinion were quoted in campaign ads. The program that appalls Justice Scalia was announced almost two months after the oral argument in the Arizona case. It seems rather a belated development to figure in an opinion in the case.

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In his peroration, Justice Scalia says that “Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrant who invade their property, strain their social services, and even place their lives in jeopardy.” Arizona bears the brunt? Arizona is only one of the states that border Mexico, and if it succeeds in excluding illegal immigrants, these other states will bear the brunt, so it is unclear what the net gain to society would have been from Arizona's efforts, now partially invalidated by the Supreme Court. But the suggestion that illegal immigrants in Arizona are invading Americans’ property, straining their social services, and even placing their lives in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it.

Then, this week, in a conversation with NPR legal correspondent Nina Totenberg, Posner acknowledged that he has become less conservative since the Republican Party “started becoming goofy.” Amid much speculation that the Supreme Court’s deliberations on health care reform were intentionally leaked so as to discredit Chief Justice John Roberts, who went against casting and expectations by siding with the Court’s liberal wing in upholding the individual mandate, Posner told Totenberg that “right-wingers who are blasting Roberts are making a very serious mistake.”

Because if you put [yourself] in his position ... what’s he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, ‘What am I doing with this crowd of lunatics?’ Right? Maybe you have to re-examine your position.

It’s impossible to know how accurately this projects the evolution of the Chief Justice’s thinking, but one can’t help but wonder if perhaps it traces Posner’s own.

The Scars of Stop-and-Frisk

W. E. B. Du Bois wrote in 1932 that “Nothing in the world is easier in the United States than to accuse a black man of crime.” Last year we asked Khalil Gibran Muhammad, author of The Condemnation of Blackness and Director of the New York Public Library’s Schomburg Center for Research in Black Culture, whether the statement still characterizes life in America:

Do I think that a statement like that holds true, even to this day? Yes. If I were to give the glib, short answer: yes. And it comes in many forms. One form is the case of New York, where we know explicitly about a policy like stop-and-frisk. A policy like that exists on the rationale that, in black and brown communities, you’ll find the most street level crime, mostly revolving around drugs or contraband guns, and so those communities should be subjected to extreme forms of surveillance, like stopping and searching people, frisking them. That is a form of accusation, the very form of surveillance and policing in those communities is, in effect, taking individual black and brown young men, and accusing them of potential criminality. There is something about the ability and the willingness for us as a society to accept that kind of treatment of young black men whose innocence should be presumed, and not in question, when they are encountered on the streets.

The statistics on the NYPD’s stop-and-frisk policy are staggering, with the New York Times reporting that in 2011 the NYPD stopped people 685,724 times, and that 88% of those stopped were not arrested or even ticketed. And 87% of those stopped were Black or Latino.

Scrutiny of the policy is at a high, with the NAACP organizing a silent march to protest stop-and-frisk in NYC this Sunday, June 17th. As the NAACP explains, silent marches have a tradition that dates back to 1917, when Du Bois led the organization’s first major public protest and demonstrated the power of thousands of people marching silently through the streets:

Silence is a powerful force that, like other forms of non-violent protest, holds a mirror to the brutality of one's opponents. On June 17, we will hold up a mirror to New York City’s stop-and-frisk policy. It is not only discriminatory, it actively seeks to humiliate innocent citizens—particularly African American and Latino men—and criminalize otherwise legal behavior.
 
Right now in our nation’s most diverse city, NYPD officials are legally empowered to stop and pat down any individual based on nothing more than their own suspicion. In 2009, the most common justification for a stop was a vague category called “furtive movements.”

The result? Blacks and Latinos are nine times as likely as whites to be stopped by police, and the searches overwhelmingly target young men of color. In one eight-block area of an overwhelmingly black neighborhood in Brooklyn, the police made 52,000 stops over a four-year period—an average of nearly one stop per resident each year.

And the vast majority of those stopped are innocent. In 2011, the NYPD stopped and questioned 685,000 New Yorkers. Of those, 605,000 walked away with no charges—only a feeling of humiliation and anger.

 People of color should not be afraid to walk down the street in their own city. On June 17th, we will proudly walk with them to assert that right. Like thousands of activists before us, we will channel the power of our silence to bring public attention to the use of racial profiling by the New York Police Department.

Also this week, the Times released a short documentary, The Scars of Stop-and-Frisk, focused on a young man in Brooklyn who says he was stopped more than 60 times before age 18. It’s a powerful story:

 

What Does it Mean to Represent a Race?

Kenneth W. Mack’s Representing the Race is a collective biography of a group of African American civil rights lawyers during the era of segregation. Mack moves away from the standard telling of 20th century American race relations (“stories of protest and accommodation, heroes and villains, assimilation and black separatism, movement building and backlash, progress and retrenchment”) to focus instead on what he calls an “enduring paradox” of race relations:

From their beginnings, Americans imagined that they inhabited a country composed of distinct racial, ethnic, and religious groups that somehow constituted a unified nation—an idea that, for some, is encapsulated in their historic national motto, e pluribus unum. Just as assuredly, since the time of the nation’s founding Americans have imagined that certain minority groups fit uneasily, or perhaps not at all, into the national whole. Among the most prominent of these groups have been African Americans, and what has connected this particular minority group to the larger nation has been its representatives—those who claimed to speak for, stand in for, and advocate for the interests of the larger group.

The usual story of black civil rights lawyers in American history is that these lawyers represented the interests of a unified minority group that wanted to be integrated into the core fabric of the nation—or, as more-recent accounts have described them, perhaps these lawyers failed at their task of representation. But the story was not so simple as either of these accounts would have it. Rather, from their beginnings, black civil rights lawyers were people caught between the needs and desires of the larger, white-dominated culture, and those of their own racial group, and there was no simple way out of that dilemma.

We recently spoke with Mack about the book, and in the video below he describes how the career of Thurgood Marshall, the most famous figure he discusses in Representing the Race, demonstrates the challenging melding of authenticity and exceptionalism still demanded of those said to “represent a race.”

 

Kenneth Mack will discuss Representing the Race at the Harvard Book Store’s Friday Forum this afternoon at 3pm.