July 4, 2009
What to the American imprisoned is the Fourth of July?
Upon Randy Barnett's astute suggestion, I celebrated the Fourth of July this morning by reading Frederick Douglass's famed Independence Day oration from 1852, which was titled "What to the Slave is the Fourth of July?". The speech is remarkable for many reasons; it is not only a wonderful reminder of the forceful antebellum moral arguments against slavery, but it is also a fitting condemnation of those who failed to condemn slavery as inconsistent with the ideals of liberty and freedom expressed in the Declaration of Independence and in the US Constitution.
As Randy notes, historian Jonathan Bean in this piece at the National Review Online advocates for Douglass's themes to resonate through modern American politics. As Bean puts it:
[T]he words of the Sage of Anacostia remain not only relevant, but essential. Why? Douglass unfailingly opposed any man’s exercising control over another.... His principles are not the stuff of “New New Deals” but rather a brief for a “New Independence Day” based on small-government principles....
If today’s Republican party wants to move forward, it would do well to look backward, and it can begin by adding Douglass to the GOP’s annual Lincoln Day celebrations.... Democrats should also learn from Douglass....
On this Fourth of July, let us join Douglass in remembering that the Declaration of Independence laments the “swarms of Officers [who] harass our People and eat out their substance.” With new swarms of hungry officers gaining power in Washington, Douglass’s own declaration of independence offers an inspiring alternative.
I share Bean's eagerness to have both parties embrace Douglass's themes, but I approach those themes from a different perspective. As regular readers might imagine, I read Douglass's speech with my mind's eye on modern mass incarceration. Thus the title of this post, which asks what those currently imprisoned think about when seeing Americans celebrate their country's committment to liberty and freedom. Especially with US prison population starting to approach three million, these passages from Douglass's 1852 speech really stood out:
Fellow-citizens; above your national, tumultuous joy, I hear the mournful wail of millions! whose chains, heavy and grievous yesterday, are, today, rendered more intolerable by the jubilee shouts that reach them. If I do forget, if I do not faithfully remember those bleeding children of sorrow this day, "may my right hand forget her cunning, and may my tongue cleave to the roof of my mouth!" To forget them, to pass lightly over their wrongs, and to chime in with the popular theme, would be treason most scandalous and shocking, and would make me a reproach before God and the world....
What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelly to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy -- a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour....
You boast of your love of liberty, your superior civilization, and your pure Christianity, while the whole political power of the nation (as embodied in the two great political parties), is solemnly pledged to support and perpetuate the enslavement of three millions of your countrymen....
In [the US Constitution] I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT. Read its preamble, consider its purposes.
Critically, any parallels to be drawn between slavery and mass incarceration must not be taken too far: thankfully, persons are now deprived of freedom in America only for illegal acts, not merely due to the color of their skins. Many persons in prison created victims; very few can legitimately claim to be mere victims. Nevertheless, even if we believe that the state should punish severely all serious wrongdoing, Douglass's strong accusation of American hypocrisy concerning liberty and freedom should still capture our attention in our modern era of mass incarceration.
Though our national monument is a "Statute of Liberty," the United States is now the world's leader in imprisonment by a considerable margin. (As Douglass might put it, there is not a nation on the earth currently confining more humans in cages than are the people of these United States, at this very hour.) Moreover, a significant number of persons in prison have good reasons to view "shouts of liberty and equality [to be] hollow mockery" given that the "drug war" has resulted in the denial of liberty to many minorities for various nonviolent behaviors.
As stressed above, I do not mean to assert or even suggest that mass incarceration is anywhere near the modern moral equivalent of slavery. But I do mean to encourage everyone, on this day of patriotic celebration, to consider whether it is time for all Americans who are truly committed to the principles of freedom and liberty to start working against the national stain of mass incarceration before it becomes as ugly or harmful as was the national stain of slavery.
July 4, 2009 at 02:16 PM | Permalink
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Punishing people for crimes can never be as ugly as slavery . . . .
Posted by: federalist | Jul 4, 2009 3:13:49 PM
"Critically, any parallels to be drawn between slavery and mass incarceration must not be taken too far . . ."
"Punishing people for crimes can never be as ugly as slavery . . "
Nor should parallels between slavery and mass incarceration be dismissed. The crack guidelines which are still being enforced -- only minimally moderated by the 2007 Amendments embody a disparity based on race -- something the great Commission and Congress have long known. We, the United States, robbed crack defendants of years of their lives based on exaggerations that found easy -- and continuing -- longevity based on the color of the defendant's skin. Call it less "ugly" than slavery, but I'm skeptical of how much less ugly it is.
Judge Adelman wrote a very compelling article some years ago noting how the Sentencing Guidelines comprised a part of the conservative white reaction to Brown v Board of Education. A distrust of the federal bench which was too willing to vindicate the rights of people regardless of the color of their skin. I think that would be a terrific piece to run again on the Fouth of July.
Posted by: DCH | Jul 4, 2009 3:37:41 PM
Many, many inmates in America's prisons are not there due to illegal acts. The poor, in America, cannot compete in funds (money) with the prosecutor's office. Nor, are the laws that ensnare
equal. The laws are defendant unfriendly, in fact defendant hostile. He can't hire experts. I sit here alone today, not celebrating anything good about America. My son is in the middle of Kansas, 500 miles away from his family. The average daily temperatures have been 100 for weeks, and will continue to be that. The cell is 7 by 11. Two men to a cell. It is hot. He didn't do anything, but due to mental illness, he was unable to defend himself against aggressive cops and aggressive prosecutor. Kansas's laws are some of the harshest. His son, who would have been in 12th grade this fall, and who already had scholarship offers, doesn't think he can face the taunting of the other students, or the jokes about "don't bend over to pick up the soap." He may not finish school. What is fair? What is just? Nothing. Nothing at all. This is America for many poor Americans.
Posted by: DLJ | Jul 4, 2009 3:38:03 PM
Is there any staining from mass victimization by the protected lawyer client? There are 23 million FBI Index felonies, 5 million are violent. The official murder rate is 17,000, but 100,000 stay missing each year, and there may be 50,000 murders. The burden is six fold heavier on the black community.
If 2 million people are in stir, maybe millions are in stir in their homes. After dark, their streets belong to drug dealers, ho's, and carjackers.
Thank the lawyer on this Fourth of July celebrating our freedoms.
Posted by: Supremacy Claus | Jul 4, 2009 4:33:44 PM
"What to the American imprisoned is the Fourth of July?"
The meaning of the Fourth of July is not for criminals to dictate.
Is there some reason we ought to be interested in what some meth dealer or scam artist or child rapist thinks of the Fourth of July? Are they fonts of wisdom on the subject?
If reflections on the Fourth are due, perhaps it would be more fitting to ask those serving in Iraq and Afghanistan about its meaning, or the millions of immigrants who gave up a great deal, and took considerable risks, including sometimes risking their lives, to come here.
Independence Day is better assessed by those who give to the country than by those who take from it.
Posted by: Bill Otis | Jul 4, 2009 7:12:24 PM
I propose federal legislation. The police has a duty to the individual citizen, within police professional standards of due care. This would reverse the ridiculous series of SC decision saying otherwise, even when the victim has a court order violated by her murderer. If the police has no duty to the individual, there is no purpose to government.
Once that law is passed, the lawyer will make money by representing the crime victim. Then, academic lawyers would be boohooing about crime victims.
Posted by: Supremacy Claus | Jul 4, 2009 7:19:45 PM
"Independence Day is better assessed by those who give to the country than by those who take from it"
True. But do YOU give to the country or take from it without repercussion?
Meditate on that one.
Posted by: Grateful | Jul 4, 2009 7:41:36 PM
There are of course those among the "intelligensia" ever ready to wag the finger of blame at the United States. To answer them would take too much space here, but this paragraph given to me by Professor Alan Kors of the University of Pennsylvania says a great deal:
"Faced with the accomplishments of their own society, however, Western intellectuals have the sensitivities of the princess and the pea. In the midst of unparalleled social mobility, they cry 'caste.' In a society of unparalleled bounty, they cry either 'poverty' or 'consumerism,' depending on the moment of the economic cycle. In a culture of ever more varied, self-defined, and satisfying lives, they cry 'alienation.' In a society that has liberated women, racial minorities, religious minorities, and sexual minorities to an extent that no one could have dreamed possible just 50 years ago, they cry 'oppression.' In a civilization of boundless private charity, they cry 'avarice.' In an economy in which hundreds of millions have been free riders upon the risk, knowledge, capital, and military sacrifice of others, they cry 'exploitation.' In a society that broke, on behalf of merit, the seemingly eternal chains of station by birth, they cry 'injustice.'”
Posted by: Bill Otis | Jul 4, 2009 7:54:03 PM
Your little quote is great and very "conservative" but that is beside the point.
Do you contribute to a better society or do you get away with murder?
I know you will never answer that truthfully and you don't have to. YOUR words condemn you already.
Posted by: Grateful | Jul 4, 2009 8:06:09 PM
"Your little quote is great and very 'conservative' but that is beside the point."
It's very much to the point of celebrating the Fourth, which is why you don't even attempt a reply.
"Do you contribute to a better society or do you get away with murder?"
Whether I contribute to a better society is both irrelevant to the topic and not for me to judge. To those who have judged it (for example, my superiors at the Justice Department under administrations of both parties), the answer has been favorable.
If you have any evidence that I have "gotten away with murder," let's see it.
"I know you will never answer that truthfully and you don't have to."
You're right about the last part anyway.
"YOUR words condemn you already."
Quote the words to which you are referring and state the reasons they "condemn" me.
Posted by: Bill Otis | Jul 4, 2009 8:23:27 PM
Bill. What a load of BS that quote was.
(1) It's true that America doesn't have a caste society in the same sense as India, for example. But the social mobility here is hardly anything to be proud of. (2) Again, I don't know what he means by unparalleled bounty. Compared to who. India, sure. Sweden, The Netherlands. No.
The fundamental fact is that there is a lot of vague and general language in that statement that doesn't bear close examination. I am not an America hater. But I think that America has a lot of room for improvement. America should be judged based upon how closely it lives up to it's ideals, not how much better that are than some poor sop in a third world country. And I think that was the point of the OP. The parallel that America should be judged against is it's ideal, not it's neighbors condition.
Posted by: Daniel | Jul 4, 2009 8:28:06 PM
"[S]ocial mobility here is hardly anything to be proud of."
You couldn't bring yourself to be proud of the USA if your life depended on it. You apparently also couldn't bring yourself to adduce a single fact to support your breezy and (typically) negative conclusion about social mobility.
"I am not an America hater."
From what I have seen of your comments, you don't hate the country exactly, you just think it stinks.
"[The country] should be judged based upon how closely it lives up to it's ideals, not how much better that are than some poor sop in a third world country."
Try writing that in Iran and watch what happens.
Do you think that just one day of the year it might be possible to set aside your "judging" America and be grateful for what you have here -- things relatively few throughout human history have enjoyed?
Posted by: Bill Otis | Jul 4, 2009 8:48:18 PM
Your anonymous, "off the wall", ad hominem attack on Bill Otis contributes nothing to the discussion.
Posted by: mjs | Jul 4, 2009 8:58:35 PM
Daniel: "Ideals" are measured in ivory towers.
On the street, where individuals of diverse ethnic backgrounds are free to pursue their lawful ambitions, America looks pretty good to me!
Posted by: mjs | Jul 4, 2009 9:03:35 PM
"Whether I contribute to a better society is both irrelevant to the topic and not for me to judge."
Oh really? But you can be the judge of who should dictate the meaning of the Fourth of July. Because in your words, "[t]he meaning of the Fourth of July is not for criminals to dictate."
Who or what gives you license to make that determination?
You stated, "Independence Day is better assessed by those who give to the country than by those who take from it."
Tell me Bill...are you worthy of dictating who is and who is not worthy of making that assessment?
I'm playing you. You are making a general assessment of ALL those in prison without leaving room for those who have been wrongfully convicted or pushed into plea bargaining.
You bring your supervisors in to validate that you have contributed something to society--perhaps they were eyewitnesses to what you have done in your career, though they certainly have not seen those things that keep you up at night.
So I'm playing you, Bill.
I don't have to go around gathering quotes and information that fills this site about who you are. Get rid of the anger, bitterness, and hate. Life is good, not everyone is evil. People mess up, even you. Forgive yourself and move along.
mjs, this doesn't concern you. Find something that does.
Posted by: Grateful | Jul 4, 2009 9:33:11 PM
"You bring your supervisors in to validate that you have contributed something to society--perhaps they were eyewitnesses to what you have done in your career, though they certainly have not seen those things that keep you up at night."
Generally what keeps me up at night is eating a big sandwich too close to bed time.
"So I'm playing you, Bill."
Then I'd be crazy to try to have a serious conversation with you.
Enjoy your Fourth!
Posted by: Bill Otis | Jul 4, 2009 10:17:39 PM
"On the street, where individuals of diverse ethnic backgrounds are free to pursue their lawful ambitions, America looks pretty good to me!"
Posted by: Bill Otis | Jul 4, 2009 10:23:42 PM
Every day I look at myself in the mirror. God I look old - God I need a shave.
Then on my way to work I ask "does the constitution confer rights or just aspirational goals?" The Fourth Amendment has been an aspirational goal for years. At least until AZ v. Gant. Anyhow, it's the 4th we still have at least some smigin of the Fourth Amendment left. Lets party!
Meanwhile, Bill Otis lives in his fantasy world where he thinks that the poor not only have innate morals but also an understanding of history. No doubt inparted by their welfare mothers which makes them understand, why, what they do is criminal or least should be in our present societal formulation. The real issue from my perspective is how can we enculturate the poor/disaffected into society. Enculturation engenders compliance. Billy, building more jails ain't the answer.
Posted by: Ile due prince edouard | Jul 4, 2009 10:53:06 PM
With one out of every thirty one US adults either in prison, on probation or parole it should be obvious that we don't have the freedom and liberty that the founding fathers hoped to preserve. This culture of control is also no longer limited to controlling the poor. We have criminalized social and cultural behavior. The law is no longer a well defined road that citizens may walk.
The danger is that every individual who is unjustly prosecuted has family and friends who also come to believe that "the law is an ass". Those who govern will have broken the covenant with the governed.
Thanks for the thoughts.
Posted by: beth | Jul 5, 2009 12:42:31 AM
The lawyer is in utter failure in the criminal law. It allows massive criminality. It falsely prosecutes an appalling fraction of innocent defendants.
We need lawyer control laws. By Amendment, anyone who has passed 1L should be excluded from all benches, all legislative seats, and all responsible policy positions in the Executive. 1L is the indoctrination into Medieval, supernatural, garbage core doctrines, and the instilling of fear of the hierarchy of the criminal cult enterprise that has taken over the three branches of government. Its only true aim, and sole success is rent seeking, a technical phrase for armed robbery.
Posted by: Supremacy Claus | Jul 5, 2009 5:44:42 AM
It may be that people don't go to prison MERELY for the color of their skin, but it can't be denied that skin color is an important factor in whether someone is prosecuted, is convicted, and is imprisoned. Michigan, where I practice, had just under 10 million people in the 2000 census. About 80% were white, and about 14% black. A Michigan Department of Corrections publication for 2007, the last year available, showed 22,576 white inmates in our prison system, and 27,311 non-whites, as of Dec. 31, 2007. When 54% of your prison system is non-white, though only 20% of your population base is non-white, it is hard to think that the prison system is not, as actually used today, at least in part, the 21st-century version of slavery.
Posted by: Greg Jones | Jul 6, 2009 11:34:43 AM
"Enjoy your Fourth!"
Posted by: Grateful | Jul 6, 2009 8:36:55 PM