Monday, January 19, 2009

The Relevance of MLK

To commemorate the official celebration of the anniversary of the birth of Dr. Martin Luther King, Jr., I thought I'd parse his "I have a dream" speech for some contemporary lessons.

1) King believed in the living Constitution:

When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the "unalienable Rights" of "Life, Liberty and the pursuit of Happiness." It is obvious today that America has defaulted on this promissory note, insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked "insufficient funds."
2) King was a Keynesian:
But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we've come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice.
Yes, I know that King was using a metaphor. Justice, we might say, is not a limited commodity. But then, the whole point of Keynesian economics is that the same is true of economic activity. That's how the metaphor works. If someone says that the government can't afford some program because the economy is too sluggish to provide the requisite tax revenues, the Keynesian refuses to believe the bank is empty, because the government can always run a deficit that will then lead to a correction.

3) A lesson for Palestinians and Israelis:
there is something that I must say to my people, who stand on the warm threshold which leads into the palace of justice: In the process of gaining our rightful place, we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred. We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again, we must rise to the majestic heights of meeting physical force with soul force.
King was much influenced by Gandhi, whose campaign of non-violent protest led to the creation of the Indian state at nearly exactly the same time that the same colonial master was relinquishing control over the territory that would become Israel and Palestine. Non-violence is not always efficacious, and Gandhi himself was notoriously naive in suggesting it might even work against Nazis. But there is no reason to think that a non-violent campaign against statelessness by Palestinians (such as this one) would fall on deaf Israeli ears, especially were it to become the dominant form of protest.

4) King was able to use clearly religious rhetoric (he was a minister after all) in a way that brought people together regardless of their particular sects or beliefs and that was unlikely to alienate non-believers:

No, no, we are not satisfied, and we will not be satisfied until "justice rolls down like waters, and righteousness like a mighty stream."
...
I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; "and the glory of the Lord shall be revealed and all flesh shall see it together.
...

And this will be the day -- this will be the day when all of God's children will be able to sing with new meaning:

My country 'tis of thee, sweet land of liberty, of thee I sing.

Land where my fathers died, land of the Pilgrim's pride,

From every mountainside, let freedom ring!

Amen.

Posted by Mike Dorf



15 comments:

Patrick S. O'Donnell said...

That was a fitting tribute: Thank you.

One quibble re: "But there is no reason to think that a non-violent campaign against statelessness by Palestinians...would fall on deaf Israeli ears, especially were it to become the dominant form of protest.

Alas, nonviolent protests and campaigns have often fallen on deaf ears or the response has been met with State repression or violence, as the story of Mubarak Awad makes painfully clear. And think, for example, of the event most often cited as the precipitating factor in the outbreak of the Second Intifada, Sharon's visit to the Temple Mount/Haram al-Sharif with more than a thousand security guards and border police:

"Sharon would have known about the 'Buraq Revolt' that led the the uprisings of 1929. Regardless, the day after Sharon's visit, Palestinians held a nonviolent demonstration. Israeli police reacted by using live ammunition, killing four young protesters. In response, across the territories, turmoil flared. An Israeli journalist reported that the army used more than one million pieces of ammunition against the unarmed demonstrators during the first few days. The early weeks of the second intifada, also called al-Aqsa intifada [after the name of the nearby mosque], were essentially another popular nonviolent upsurge."

I believe a close study of the Palestinian struggle for collective self-determination and statehood would reveal frequent reliance on nonviolent methods and techniques that often were met with appallingly disproportionate and violent responses by the state of Israel (one should not expect a nonviolence response, to be sure, but the precise nature and swiftness of the State's reliance on violence has, I believe, had a dispiriting effect on the Palestinians over time). If one studies the history of the Muslim Brotherhood in Egypt (the soil from which Hamas grew), we learn they never had a systematic principled commitment to nonviolence, nevertheless, early on the Muslim Brothers relied on approaches that were exclusively nonviolent in their struggle against the State, only to take up arms in response to the experience of the Palestinians.

The quote above was taken from a recent book that I would recommend to anyone concerned about the history of and prospects for nonviolent strategies and methods in the Palestinian resistance and struggle: A Quiet Revolution: The First Palestinian Intifada and Nonviolent Resistance (New York: Nation Books, 2007). Also of interest, at least with respect to Palestinians who are Muslim, is Abdul Aziz Said, Nathan C. Funk and Ayse S. Kadayifci, eds., Peace and Conflict Resolution in Islam: Precept and Practice (Lanham, MD: University Press of America, 2001).

I'm not saying or implying Palestinians should abandon nonviolent methods, far from it, but only that we need appreciate that such attempts are hardly novel, that they need hardly be taught any "lesson" in this regard and, finally, that there is in fact, alas, ample reason to believe that such efforts will fall on deaf ears, apart from members and supporters of Gush Shalom (http://zope.gush-shalom.org/index_en.html).

Chris said...

I don't see how the check metaphor supports the living Constitution at all. King is demanding the enforcement of old promises according to their original terms, isn't he?

Michael C. Dorf said...

In response to Chris: No, not really. In the 1845 New Jersey Supreme Court case of State v. Post, plaintiffs argued that the NJ Constitution abolished slavery but the court rejected this argument on the originalist ground that one must interpret the Declaration's "All men are created equal" in light of the framers' acceptance of slavery; and in Dred Scott, Justice Taney says basically the same thing. The characteristically originalist move is to take open-ended language and confine it to only those meanings consistent with the actions of its drafters. The living Constitutionalist move allows that the capacious language can come to be understood differently. (I realize that in recent years people calling themselves "originalists," including Jack Balkin, have been willing to construe original understanding at a sufficiently high level of generality to make it consistent with living Constitutionalism. I don't have a quarrel with that form of originalism, except to say that use of the term is likely to be confusing.)

Michael C. Dorf said...

A small clarification in response to Patrick's point: When I say that non-violent resistance could work in some context, I do not rule out the possibility that it will ALSO inspire force in response, at least for a significant time. That was certainly true for Gandhi and King. All I meant by saying that a mass commitment to non-violence by Palestinians today might succeed is that it might succeed eventually. What makes the Israel/Palestine struggle different from the Indian nationalist movement and the American civil rights movement is that both sides in the Israel/Palestine conflict can stake legitimate claims to victimhood, and both sides are of course right in that assessment. I know a fair number of Israelis who formerly supported land-for-peace and even Peace Now, who have thrown up their hands. Many of these people believe both that their own government and the Palestinian people and leadership have repeatedly missed opportunities. It's these people to whom a non-violent protest movement would appeal, in an effort to reconstruct a political center among both Israelis and Palestinians.

Chris said...

I still don't see how the check metaphor itself supports living constitutionalism. "The Founders wrote a check, but it didn't have enough zeros in it, so let's write some more in" is the analogue of living constitutionalism. "The Founders wrote a check, and I want to cash it" sounds like originalism to me.

"The characteristically originalist move is to take open-ended language and confine it to only those meanings consistent with the actions of its drafters."

I don't think the inference from actions to meanings--e.g., Dred Scott's assertion that the Founders were "incapable of asserting principles inconsistent with those on which they were acting"--is characteristically originalist. Raoul Berger was about the only one to defend that sort of move explicitly. The bulk of originalists distinguish between the principles expressed in the text and other things the Founders did. See, e.g., here (especially pp. 567-69 & n.36) and here. Mitchell Berman's reply to Balkin documents pretty extensively that virtually no one actually adopts the form of originalism Balkin says is popular.

Patrick S. O'Donnell said...

I appreciate Professor Dorf's clarification and speaking for myself assumed something along those lines was intended. But I do have to take vigorous exception to the remark that "both sides in the Israel/Palestine conflict can stake legitimate claims to victimhood, and both sides are of course right in that assessment." Now whatever the subjective assessment by Israelis, this will not do at all as anything on the order of an obective evaluation of the conflict that in no small measure has been determined by an enormous disparity of conventional power between the two sides, exacerbated by our country's ongoing economic, military, political, and legal support of that asymmetry. As Robert Fisk has asked,

"Have we forgotten the 17,500 dead –almost all civilians, most of them children and women – in Israel's 1982 invasion of Lebanon; the 1,700 Palestinian civilian dead in the Sabra-Chatila massacre; the 1996 Qana massacre of 106 Lebanese civilian refugees, more than half of them children, at a UN base; the massacre of the Marwahin refugees who were ordered from their homes by the Israelis in 2006 then slaughtered by an Israeli helicopter crew; the 1,000 dead of that same 2006 bombardment and Lebanese invasion, almost all of them civilians?"

The most recent round of conflict is a perfect case in point: at least 1,300 Palestinians killed, with thousands more wounded and left homeless (at least a third of those killed were children). The Israelis counted thirteen deaths, three of them civilians.

But it's not just the stark difference in the numbers of those killed and wounded over the years. It's the myriad forms of structural violence and daily indignities and humiliation and suffering the Palestinians have endured since the founding of the state of Israel but especially in the last several decades. The Israelis have systematically dismantled any attmepts by the Palestinians to engage in even rudimentary forms of self-governance (I'm not saying the Palestinian leadership is in anyway blameless for things like corruption, etc., only that the Israelis have ensured they are never able to bargain from a position of respectability and power: recall that it was the actions of the Israelis against Arafat and the PNA that helped to radicalize Palestinians and drive them into the arms of Hamas). If you want to read just one book that helps one gain a sense of what Palestinians face on a daily basis that is not even remotely close to the experience of daily life for Jews in the state of Israel, read Saree Makdisi's Palestine Inside Out: An Everyday Occupation. If you'd like to appreciate why a framework that posits a "parity of victimhood" so to speak is more obfuscatory than revelatory, read Sylvain Cypel's Walled: Israeli Society at an Impasse (2006). [I have a handful of posts related to this conflict over at the Ratio Juris blog should anyone care to pursue this matter a bit more.]

BTW: The author I neglected to mention above for A Quiet Revolution is Mary Elizabeth King (no relation!).

Michael C. Dorf said...

I did not say (and it would be foolish to say) that the daily lives of Israelis and Palestinians, or the number dead and wounded, are the same. I said that both sides can stake legitimate claims to victimhood. Any disagreement with THAT statement requires an incredibly selective view of history, one which overlooks the response of the surrounding Arab states to Israel's creation and the continued commitment to its destruction by many Palestinians. That is not intended as a defense of any particular Israeli action, including the recent incursion into Gaza. It is simply a diagnosis. For now, I'm going to agree to disagree with Patrick on the Israeli/Palestinian conflict, and to give him the last word if he wants it.

Now, for something completely different: With respect to originalism, I recommend Chris Eisgruber's chapter on Dred Scott in my book Constitutional Law Stories, which shows Taney to be engaged in exactly the moves I described. Chris (the commenter here, not the Provost of Princeton) says that's not originalism. Maybe yes, maybe no, but certainly what King said in the passage I quoted is not originalism either, unless originalism can mean anything. King referred to the Constitution and then quoted the Declaration. The "original public meaning" of the Constitution--the meaning that the sorts of originalists Chris has in mind care about--unquestionably permitted slavery: the 3/5 Clause, the Fugitive Slave Clause, and the Slave Trade Clause make that much clear. So on any meaningfully originalist view, the original Constitution was not an enforceable promise of equality to future generations. It's only by allowing ideals we hold--and which we might think that the framers also held but did not write into the text of the Constitution--that we can call the original Constitution a promissory note redeemable for equality.

Finally, as long as we're objecting to mischaracterizations, no living Constitutionalist would describe his position as saying: "The Founders wrote a check, but it didn't have enough zeros in it, so let's write some more in." We would instead say something like "The Founders used open-ended language but given the difficulty of amendment, ended up writing law that endured for hundreds of years, binding people with very different backgrounds and values. It would add insult to injury to exclude principles of justice, as we now understand them, from the interpretation of that open-ended language simply because the words used had a somewhat different meaning in a world long dead." Saying that we are "adding zeroes" is a way of dismissing the living Constitution project as not engaged in good-faith interpretation.

Chris said...

"Chris Eisgruber's chapter on Dred Scott ... shows Taney to be engaged in exactly the moves I described."

I agree--the "incapable of asserting principles inconsistent with those on which they were acting" bit is from Dred Scott. And I'm not saying that Dred Scott isn't a form of originalism; I just don't think that that sort of move is necessarily characteristic of any sort of originalism. And as Berman documents, it's not characteristic of originalists today.

"So on any meaningfully originalist view, the original Constitution was not an enforceable promise of equality to future generations."

Right.

"It's only by allowing ideals we hold--and which we might think that the framers also held but did not write into the text of the Constitution--that we can call the original Constitution a promissory note redeemable for equality."

I don't read MLK as saying that the original Constitution had an enforceable promise of equality. The Declaration said that all men were created equal and entitled to life, liberty & the pursuit of happiness, but that wasn't enforceable. Only the 14A made it enforceable. Nevertheless, if we're trying to explain the original public meaning of the Declaration, I think that we shouldn't be bound by the actions of the Founders, and that no actual living self-described originalist would say that we should be. I think "equal" really meant "equal," and that "men" really included slaves, but the Founders' actions were inconsistent with the principle they expressed in the Declaration.

"[N]o living Constitutionalist would describe his position as saying: 'The Founders wrote a check, but it didn't have enough zeros in it, so let's write some more in.'"

Fair enough. That was just a snark.

My basic point is just that the check metaphor suggests that the Constitution is essentially a contract, and that idea fits with originalism. We wouldn't think of importing moral ideals into the interpretation of an actual check, would we?

Patrick S. O'Donnell said...

I'll take advantage of Mike's kind and gracious offer to, if you will, give me the last word. I won't retract my statement about the problems of "victimhood parity" but do want to note that Arab states surrounding Israel have recognized its existence in both a de jure if not de facto sense and have long viewed the state of Israel as a fait accompli. And I think it is simply wrong to assert that there exists a "continued commitment to its destruction by many Palestinians." Many Palestinians depend for their livelihood on the economy of the state of Israel and close to twenty percent of its population is Arab. What Palestinians do want to see disappear is the "Zionist" character of a state insofar as that state constitutionally describes itself as "Jewish and democratic" and continues to deny equal privileges and rights of citizenship to Arabs. This is not tantamount to wishing the destruction of the state. Even Ahmedinajad's supposed call for the destruction of Israel was not an accurate rendering of what he said or apparently intended to say (cf.: http://www.antiwar.com/orig/norouzi.php?articleid=11025 here: http://www.commondreams.org/archive/2007/09/24/4057 I had another link to a word-by-word and sentence translation and discussion at Opinio Juris where we discussed this but can't access their site right now to retrieve the URL).

That's not the last word on the subject but will suffice from my end.

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