Racism, sexism, homophobia, xenophobia, repression, and the other evils that have been spotlighted by the recent election did not arise full-blown from the Trump campaign. They all trace deep roots in American society; they are brought now to the surface by demagogy.
The point of my last several posts has been that we could see this coming. That is an important insight because those who do not understand history are condemned to repeat it. This fate does not arrive by way of some dramatic punishment. Rather, it creeps into our work and our consciousness because we have not tried to understand how we got here, and just how embedded are the attitudes and ideas against which we struggle.
A good friend of mine wondered aloud how racist attitudes could have such power. I asked him to consider this: In 1964, Barry Goldwater was the Republican nominee, Lyndon Johnson the Democratic nominee. Goldwater was rightly seen as far right — for that time, anyway. Johnson carried California with almost 60% of the vote. Yet in that same election, a ballot measure called Proposition 14 carried with more than 65% of the vote. Proposition 14 repealed fair housing legislation, and amended the California constitution to forbid any legislation that would restrict the “right” of a property owner to sell or refuse to sell as the owner chose. That is, Proposition 14 constitutionalized the right to commit racial discrimination. The Supreme Court held Prop. 14 invalid in Reitman v. Mulkey, 387 U.S. 369 (1967). However, the Supreme Court vote was just 5 to 4, even though the racist basis for Proposition 14 should have been clear to anybody.
Proposition 14 was based on a twisted idea about “freedom,” and we are seeing that idea a lot lately. “Freedom” to discriminate. “Freedom” to deny marriage licenses to gay couples. And so on. We must understand the depth and breadth of the social attitudes against which we are contending.
It is true:
The philosophers have only interpreted the world, in various ways. The point, however, is to change it.
Don’t be, however, misled by these words. Suppose you want to change a tire on your car. Your tire is flat. Imagine trying to change your tire without understanding how it is attached to the car, and what purpose it has in the operation of the car. Indeed, the words “change a tire” are misleading. You cannot change your tire. It is on the wheel and it takes some kind of special machine to change it. Most likely, you are going to change your wheel. You get the point. If you want to pursue the metaphor, consider that in changing the wheel you may encounter some troublesome nuts.
So if you want to change the world, you must first understand it.
Understanding: Choosing Your Issues
1. Labor Rights. My last few posts have focused on labor rights. Those concerned with international human rights should study the network of treaties, customary law principles, labor unions, and international organizations involved in the struggle. As we have seen, multinational corporations think of the labor force in global terms, while seeking to beat back challenges country by country. We must look at the restrictions and attacks on the right to organize. These are found in domestic labor laws, international agreements such as NAFTA, and the conduct of multinationals. Just one example: Mark Thomas’s book Belching Out the Devil. Thomas has focused his work on the transnational behavior of the Coca-Cola Company around the world as it wreaks environmental harm, violently suppresses labor rights, and contributes to bad health.
Below I will name some organizations concerned with labor issues. Go to their websites and get informed. Get a subscription to Monthly Review at <monthlyreview.org>. Much of what I have been writing is based on what you can read in Monthly Review. MR Press published my book Law & the Rise of Capitalism. Go to their website and keep up with MRZine.
In other work, I have traced the development of human rights norms in the 20th and 21st Centuries. See Law & the Rise of Capitalism291-325 (2d ed. 2000); Thinking About Terrorism (2007), both available on Amazon.com. We are seeing now a growing consensus that the basic rights to a decent standard of living and to organize should be recognized and enforced. At the very least, violent suppression of movements to obtain and secure these rights may be regarded as violations of customary international law.
On the domestic front, employer attempts to defeat community organizing efforts have been successfully resisted. The resistance is based on application of traditional rights to speech and association. This is the body of law to which we must look.
2. Immigrant Rights. The waves of arrests and deportations of undocumented persons have been accompanied by wholesale denial of basic rights to counsel, to an interpreter to translate proceedings, to decent conditions of detention, and to family unity. It is no exaggeration to say that these detention facilities are concentration camps.
The denial of basic “procedural” rights is accompanied by draconian measures about who can stay and who cannot, and truncated rights to hearing and review.
3. Sexual Orientation. The progress in decisional law about gay rights has been manifest. The backlash continues in the rhetoric of politicians and in a spate of hate crimes.
4. Gender Bias. The glass ceiling is firmly in place. Resistance continues. One sidelight is that many women voted for Donald Trump despite his evident sexism and misogyny. See Susan Chira, “The Myth of Female Solidarity” (New York Times, November 13, 2016). Class may play a bigger role than gender.
5. “Ordinary” Rights. In the 1960s, we talked a lot about alienation. One of its aspects was this feeling of powerlessness. Here we are, in fragile economic circumstances, subject to biases about our gender, race, ethnicity, religion, or sexual orientation. Our jobs are in peril. We buy products that don’t work and we can’t get redress. When our landlord treats us badly, there seems to be no recourse. In the 1960s, this sense of alienation led to direct action movements that spilled out into the streets and highways and college campuses and places of work. If you are reading this post, you are probably a lawyer, a law student, or a friend of one of those.
Please understand that all this talk about rights means nothing unless lawyers are ready to take up the challenge of representing people. There are no “small” cases in this struggle. The Greek-Roman philosopher Epictetus confronted a circus strongman: “See my dumbbells,” the strongman said. “Your dumbbells are your affair,” Epictetus replied, “I desire to see their effect.”
I have seen too many young lawyers bewitched by their new and well-paid jobs. It is as though they are saying, “I upped my income in private practice; up yours.”
If you are considering going to law school, choose a law school that will not only give you the tools you need to take part in the struggle, but will nurture your desire for justice.
- Washington College of Law in Washington, D.C., has superb clinical and international human rights programs. My colleagues there have worked with students to win significant human rights victories and helped students to get good jobs continuing the work.
- Elon University Law School in Greensboro, NC, was founded with an ethos of lawyer involvement in the community.
- Northeastern Law School in Boston earns high marks for its clinical and internship programs.
- I recently went to a reunion at my alma mater, Boalt Hall at UC Berkeley. I met and talked with students working on all manner of human rights issues, domestic and transnational.
My colleague Ali Beydoun has sent me this information:
If I had to organize a master circle of committed advocates to workers rights (agricultural and rural workers) I would select the following people:
- National Employment Law Project (NELP), www.nelp.org, Catherine Ruckelshaus, General Counsel
- Farmworker Justice: www.farmworkerjustice.org, Bruce Goldstein, President
- Farm Labor Organizing Committee, www.floc.com, Baldemar Velazquez, founder
- California Rural Legal Assistance, www.crla.org, Cynthia Rice, Legal Director
- Tex Rio Grande Legal Aid, www.trla.org, Douglas Stevik, Legal Director/General Counsel
- Farmworker Legal Services of Michigan, www.farmworkerlaw.org, Tom Thornburg, Lead Attorney
- Legal Aid Justice Center, www.justice4all.org, Mary Bauer Executive Director
- Friends of Farmworkers, www.friendsfw.org, Art Read, Lead Attorney
These organizations do amazing work and are led by amazing minds.
I went online this week and found a half dozen organizations here in North Carolina that can use help. And don’t forget that local legal aid and legal services organizations provided needed services on the “ordinary” but not really ordinary issues of daily life for people whose alleged rights mean nothing without legal assistance. You may find that the first, or even the first few, organizations you contact are somehow not ready for the kind of help you are able and willing to offer. Keep trying; they too are learning how to cope with this storm.
This work can be fun. Last year, I handled a consumer product case. The amount in controversy was relatively small, and the manufacturer’s attitude was that a disgruntled consumer could safely be ignored because of the cost of litigation. It was kind of exciting to teach the manufacturer that with a little skillful lawyering, the cost-benefit analysis could shift to the consumer’s favor.
Get up. Get out. Start looking around. Don’t mourn. Organize. First of all, organize yourself. And watch this video: <youtu.be/TsovDxkIeKs>.
Don’t be lulled. As John Oliver says: This is not normal. The most dispiriting media clip of the day is from the New York Times: “Democrats May Try Surprising Strategy: Align With Trump.” I only wish it were surprising that the same folks who brought us to this crisis are now ready to practice the politics of temporizing and acquiescence.
Michael E. Tigar is Emeritus Professor of Law at Duke University and Emeritus Professor of Law at Washington College of Law. He has been a lawyer working on social change issues for many years. His books include Law and the Rise of Capitalism (Monthly Review Press, second edition, 2000), Fighting Injustice (ABA Press, 2002), and Thinking About Terrorism: The Threat to Civil Liberties in Times of National Emergency (ABA Press, 2007).