Gone With The Wind: Race And The Rule Of Law

We find ourselves, in today’s America, feeling suddenly unmoored from basic tenants and core principles.

Bedrock ideals, ethical standards, and common decencies we thought indelibly etched in our American ethos have seemingly been abandoned or trampled upon.

The rule of law—our adherence to the most fundamental legal and moral tenants of our society—appears scarily in peril. Our most critical democratic norms—those underlying judicial independence, freedom of the press, peaceful debate, transitions of power, separations of power, apolitical law enforcement, avoidance of conflicts of interest, freedom from foreign interference, abstention from the retributive use of power, commitment to truth, and more—seem threatened.

In this context, calls for a return to civility abound. Polls show most Americans feel incivility is a major problem. Many fear it is a crisis taking us down a path toward violence.

The ABA House of Delegates affirmed the principle of civility as a foundation for democracy and the rule of law and urged us as lawyers to lead by example. President Bob Carlson, in his first ABA Journal President’s Message this year, reminded us to champion civil discourse, not just in Congress, but in our daily conduct.

But is this perilous place for first principles really entirely new territory? For one answer to that question, we need only consider what it has been like to be black in America since 1619.

Core principles both of law and civility ̶ that white Americans have long had the luxury of taking for granted ̶ have for just as long been largely illusory or inapplicable to African Americans.

Social civility is a good example. We, as a country, have witnessed our expectations of civility being dashed. We are collectively aghast at rampant disregard for common decency and civility.

Yet, for African Americans, “civility” has often been a restraint—even a prison—rather than a mutually beneficial reward. The racial politics of civility are very different from our societal standards of civility. The politics of civility for African Americans are shackles on individual and social identity and expression. For centuries, Black Americans have found themselves bound to behave in ways that meet the expectations, and do not unsettle the mood, of white Americans.

If you doubt this truth, consider our current climate, in which “civility” is sometimes weaponized by the most uncivil among us to muzzle dissent. Ironically, citizens legitimately protesting the discriminately disparate enforcement of current standards of civil deportment are being attacked as uncivil. Effectively, “civility” is being used as a battering ram to push us back toward “traditional” American hierarchies where only white male propertied free landowners have a say.

Even well-intentioned people in power view “civility” as an instrument to allow people with strong opinions a civil forum to express their views. But the powerless often see the same effort as a way to “tone-police” people who do not have power, and suppress disturbing discussion.

Witness a recent discussion among a Charlottesville, VA, city council wrestling with public discourse in the wake of the deadly white nationalist attack. The mayor struggles to maintain order: “We don’t…just scream from the floor…. I see civility just as an instrument to let people with very strong opinions, very strong emotions, be in the same body to get things done.”  City Councilman Wes Bellamy responds: “I could have a conversation with you and because my vernacular is not the same and because a topic makes me more emotional and I'm more passionate about it, it doesn't mean that I'm not being, quote-unquote, "civil." It could just mean that when I was talking to you in a way that you may deem civil, you refuse to listen to me. So now you're going to have to hear me by any means necessary.”

This is not new. To the disempowered, “civility” has often been a tool to preserve racial, gender, and class hierarchy and inequality. That interpretation of civility derives from a racist citizen-versus-savage rationale. In the dawning days of our nation, Native Americans were uncivil; throughout slavery through Jim Crow and beyond, civility was wielded to suppress “uncivil” African Americans; at the turn of the 20^th Century, civility was deployed to label women advocating the right to vote as uncivil; during the 1960s civil rights movement, Rosa Parks, Martin King, Malcom, and the Black Panthers were all uncivil; in the 1980s, AIDS activists were uncivil; recently, Black Lives Matter and Colin Kaepernick were uncivil.

The term civility comes from the Latin root civilis, meaning "befitting a citizen." The ABA House of Delegates is exactly right that civility is central to our democratic construct, and that we  ̶  as officers of the court and guardians of justice  ̶  must, per force, lead by example. President Carlson is absolutely correct that we need do so not just in courts of law and council meetings and Congress, but in our daily conduct. One in six Americans have stopped talking to a family member or close friend because of the 2016 election. Divisive politicians, ravenous 24-hour news cycles, tectonic talk radio, and social media shaming have spun us collectively into camps of mutual contempt. Polls show our nation is more polarized than it has been since the civil war .

That very historical yardstick—since the civil war, though, should also help remind us that another component essential to and “befitting a citizen” is equal justice and parity in the application of legal, ethical, moral, and social standards. The recent deterioration of civility in our collective community has also picked the scab of generational racism that still afflicts certain of our communities.

Ever since they were stolen to these shores 400 years ago, Black people in America have had to calibrate their every mood, word, and action in order to meet the expectations of white America — if they were to survive the racist restrictions imposed upon them by society. We all must learn to empathetically embrace the reality that “civility” and even the rule of law have long been applied inequitably—even oppressively. We all must learn that many times in our history the consequence of “incivility” has been rewriting our social contract to make it more inclusive of historically oppressed and excluded citizens.

Challenging the status quo, however biased and discriminatory it may be, is invariably viewed as uncivil by those with a vested interest in maintaining the status quo. Pushing the boundaries is always viewed as shouting and shoving. The truth is, we had to be shoved out of slavery, shoved out of Jim Crow, shoved into women’s suffrage, shoved into AIDS awareness. Students sitting with quiet dignity at lunch counters in the 1960s were then seen as reprobates. Today they are recognized as heroes.

It is heartening that the current climate of chaos has inspired so many Americans to clamor for restoration of civility and the rule of law; that climate has also presented us all with an opportunity to recognize that for many Americans “civility” has long been a dog whistle for white power.

My two primary initiatives as Chair of this Section are designed to engage precisely these parallel issues.

Our new African American Affairs Committee is already actively orchestrating a clear-eyed look at slavery and its enduring and indelible stain, the ensuing 400 years of racism and oppression facing descendants of slaves, and the daily burdens of being Black in America and living under the weight of institutional and cultural racial oppression.

We are about to launch our Domestic Rule of Law Committee, a bipartisan group of lawyers with a shared passion and commitment for ensuring our nation upholds the rule of law here at home. This Committee will together expressly seek to rise above acknowledged policy differences and collectively champion the central, critical democratic, constitutional, legal, ethical and social norms we all hold dear.

These efforts are not only compatible, they are symbiotic strands of the same societal imperative: Healing our body politic holistically, in a way that uplifts us all.