From the Ridiculous to the Sublime (Or, Why Idiocy Should Spark Real Conversation)

Some statements - the eye-rolling ones, the ones that engender nervous laughter and the ones that bring uncomfortable silences - too often get spun out of control and fail to emerge as "teachable moments."  Such is it with the recent declaration that one candidate and his party wishes to place some members of society "back in chains."

Putting aside that the comment was undeniably about the concept of a wholly unregulated banking system which is a proven mistake; and, putting aside that bankers themselves have admitted that their own greed requires regulation; and, putting aside that Joseph Kennedy effectively started the Securities and Exchange Commission precisely because he understood how unscrupulously the industry behaves; and, putting aside that most Americans are struggling because Wall Street was not really paved with gold; and putting aside the Revolutionary lamentation of Patrick Henry, "is life so dear or peace so sweet, as to be purchased at the price of chains and slavery?" - the nation jumped on the comment as race-bait like lions on a gazelle in a feeding frenzy.

It is not news that the Vice President said something offensive; this is the same man who forgot more than once to turn the mike off before dropping the f-bomb (now a real word) and who calmed the nation by declaring that he was too frightened to use public transit due to fears of influenza.   Indeed, it is not news that vice presidents  and candidates for the vice presidency essentially write monologues for an entire nation of comedians with their ad libs.  It is also not news that comments, such as the recent gaffe by the current vice president, send political opponents into fits of joyful apoplexy condemning the statement and accusing the declarant of fueling negativity.

Negativity is part of American politics and has ever been.  Once Washington stepped down, the mud-slinging began.  The election of 1800 included accusations by the  Federalist camp that Jefferson was the child of a racially mixed union and the Democrat-Republicans countered with Adams' slightly effeminate persona.  Equally disgraceful were the smear campaigns between Andrew Jackson and John Quincy Adams.  The list goes on, but negative campaigns are not the point.  The (again, my apologies for this phrase) teachable moment is the point.

So, here it is: schools teach that slavery was an unfortunate and ill conceived economic system which existed well before and after the colonists broke ties with Britain and ended after the Civil War.  It was bad, we were good to end it.  With the exception of some escaped and freed slaves like Frederick Douglass and Phillis Wheatley, slavery is a nameless, faceless historical relic. Only it is not. 

Northerners like to believe that individual slave holders in Southern states were the oppressors; but this is another fairy tale.  Every colony had slaves; every colony contributed to slavery.  Indeed, Northern economic concerns helped drown out early Southern voices for abolition.  Without minimizing truly heroic and visionary individuals, most American laws and people supported the institution of slavery, tacitly or overtly - even if they hated it - because the legal and economic system of the entire country supported slavery, regardless of where the practice itself continued.

Economics also encouraged indentured servitude which, similar to slavery, was eternal, brutal, hopeless and demoralizing.  Indentured servants were personal property and could be bought and sold.   As awful as the life of a white indentured servant could be, the dehumanizing chains and shackles and naked auction blocks were reserved for black slaves.

Courageously, men and women who had been deemed less than whole by their own government found the dignity and grace not only to stay and contribute to American society after freedom was declared, but to hold up the mirror of truth for this nation to live up to its own creed.  And, yet instead of gratitude, as a nation we stood idly by as thousands of African Americans were lynched, when Jim Crow laws emerged, when chain gangs existed, when public and private institutions all over this country were segregated, when African Americans could only have a dream of equality.  Indeed, the silence of today's coded language and colorblindness echoes as loudly as overt racism of our not-too-distant past. We condemn slavery at the same time we fail miserably to welcome African Americans fully into the privileges and immunities of citizenship bestowed upon all Americans.  What else is this but a badge and incident of slavery hearkening back to the unfulfilled promise of the 13th Amendment? 

This is the teachable moment.  Reference of chains and shackles made to a largely African American audience caused a collective gasp, as those of a generation ago used to whisper the word "cancer" as if to utter it out loud would somehow let out a secret no one was supposed to know.  It is not a secret to African Americans that slavery existed in this country.  African Americans are well aware that their ancestors were shackled in chains and sold at auction.  This, too, is not a secret.  It is the nation's, not the individuals' or their descendants', shame and it should not be hushed.  Only by understanding and studying this history can we ever tackle its lasting effects.

Many of the lasting effects come out in criminal contexts: Boston believed a white Charles Stuart in 1989 when he blamed a black man for attacking him and his pregnant wife until the facts revealed that he killed his own family; in 1994, a white woman, Susan Smith blamed a black man of  carjacking her and her sons when, in fact, she had murdered her own children; in 2008, a white woman, Ashley Todd, blamed a tall, black man of carving into her face when, in fact, she had mutilated herself; in 2012, Bonnie Sweeten, a white woman, was sentenced to 8 years in prison for embezzlement, but that was only after her false original story - blaming a black man of carjacking her and her daughter and stuffing them into the trunk - unraveled.  Intensive investigation revealed the fraud in each of these cases, but query why these people would decide to blame a black man for their own crimes.

When he was a senator, Vice President Biden voted for a law to have youths as young as 14 tried as adults subject to the same penalties for "serious violent or drug related crimes." He voted for a law that increased the number of crimes subject to the death penalty and mandated life in prison for three drug crimes.  But, as scholars have explained, the "war on drugs" has disproportionately become a means of incarcerating African Americans despite the greater sale and use of drugs by whites than blacks. As with most legislators, he may not have realized the effect of these laws was, indeed, to place a disproportionate number of African Americans "back in chains".

Real chains, real shackles and real humiliation accompanies every incarceration under these laws.  This topic is uncomfortable because we desperately want to believe that if we chain and shackle people today at least they "deserve" it.  Yet, barring the rare case of uncontrollable violence, it is difficult to imagine the necessity for this badge and incident of slavery to continue save to create the illusion that those incarcerated are different from those not incarcerated.  But, even if the argument for restraints succeeds, most of the irons wrap around the legs of black men.  Frederick Douglass warned, "no man can put a chain about the ankle of his fellow man without at last finding the other end fastened about his own." Everyone suffers when we are unjust in our laws their application.  Those shackles, and the chains of our inability to discuss race in meaningful ways, weigh us all down.

Given the speaker, it is fair to say that the "y'all back in chains" statement was nothing more than an unfortunate combination of words that happened to fall out of his mouth while a microphone was on.  But, race bias is real in this country; ignoring it, glossing over it, making hay of it is not going to help change anything.  The presidential campaign will continue on its own negative trajectory with or without racial allusions.  The lesson to take away is that the reason this exploded into an issue is not the ghost of Lee Atwater as an earworm to politics, but rather because we are so still uncomfortable talking about race and the continuing badges and incidents of slavery.

No one alive today is responsible for the African Slave Trade.  We do not study history to take blame or credit.  But, if we learn the truth without painting good and evil into historical portraits, we will acknowledge this past, its imprint on the present, and aim to eliminate the residue from our hearts, our minds and our legal system (and perhaps we will spend less time punishing the poor and more time seeking to establish a functional, regulated financial market).

The teachable moment grants us permission to declare that words are not merely words; shackles and chains connote mental images.  But, also words are not merely words - this country began with a profound promise to each other, that, we, the people of the United States, would strive to enhance our union by working together to establish justice and insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity - not just words but a living, breathing affirmation.

Fools Rush In

Angels in government have a long history; Jefferson asked if men could not be trusted with self governance were kings not men but angels entrusted to govern others.  Lincoln urged us to be friends seeking the better angels of our nature.  Madison explained that because we are not angels, we require "auxiliary precautions" to guarantee fair government.

It is in celebration of democracy that the system of checks and balances emerged in which the independence of the judiciary ensures a government of laws and not men.  It is precisely because we are human, full of flaws, that we require restraint which grew here in the form of an independent and impartial judiciary. 

Judicial tenure, however, requires good behavior; actions contrary to law and decency shall not be rewarded.  And, so there are in place mechanisms by which to challenge the impartiality and independence of individual judges.  In recognition of the notion of an independent judiciary, the recent Massachusetts case protects from scrutiny a judge’s thoughts and notes about individual cases.  Here in Massachusetts, the Suffolk County (Boston) District Attorney has accused a judge of bias -   according to the prosecutor, he rules in favor of defendants too often to be impartial.

To clarify: the Executive Branch has declared that the Judicial Branch protects individual liberty too much to be fair to the interests of the Commonwealth...despite the trust the people place in all of government to protect liberty.  Prior challenges to sitting judges have occurred, but for the opposite reason.  In 1973, Judge Troy was disbarred by the Supreme Judicial Court for abusing his office by, among other things, depriving criminal defendants of their constitutional rights, hiring but not paying lawyers who appeared before him, and neglecting his actual, judicial duties.   It was after Judge Margaret Scott was awarded the Kinlock Award by the Massachusetts Juvenile Police Officers Association bestowed upon those demonstrating, “excellence in his or her field of endeavor; that endeavor must be associated with our young people... [those] endowed with understanding, compassion and patience and a willingness to do more than the next person for tomorrow’s adults" that she was sanctioned for depriving those appearing before her of their individual liberties.   Understanding, compassion and patience apparently includes making up laws to convict the innocent, charging unlawful fines, and removing terrified children from the care of their loving parents.

Past judicial challenges involved the deprivation of Constitutional rights.  The current charge against the judge who shall remain nameless  may be the first time that judicial protection of liberty faces scrutiny.  Even if we put aside the question of whether the Executive Branch even has the authority to challenge the Judiciary - which may very well be prohibited by the Massachusetts Constitution Pt. 1 Art. 30, it is important to note that the judge in question was appointed by a former federal prosecutor and a Republican governor not known to be “soft on crime”.  The Executive Branch’s current disappointment in this particular judge’s interpretation of the law is less credible than Eisenhower Republicans’ disappointment in the way Earl Warren understood the federal Constitution.   But even they did not investigate him for bias due to decisions from his Court.

American history decries the prosecutors' actions against a sitting judge.  As noted in the recent opinion, John Adams spoke highly of an independent judiciary; but, he had to be disappointed in the case that assured the concept.  Politics are a nasty business and it has ever been thus.  Mr. Adams’ Federalist party reviled Mr. Jefferson’s Democratic-Republican party.  The peaceful transition of power from one to the other in 1801 is still a remarkable feat about which the United States should be proud.

The rivalry, the animosity and the disgust, indeed led to one of the greatest legal decisions of this nation’s history ensuring the independence and the impartiality of the federal judiciary which we understand now to be a fundamental aspect of all American government.  Adams lost a bitterly contested election to his former friend come rival, Thomas Jefferson.  The Adamses could not wait to leave the swamp of the Capitol and head home to Peacefield.  As one of his last acts, President Adams appointed several justices of the peace and left their signed commissions to be delivered.  No one did so and President Jefferson famously ordered them not to be delivered.  Mr. Madison, Jefferson’s Secretary of State, obliged. 

One particular appointee, Mr. Marbury, was so enraged at being denied his commission that he sued for it directly in the United States Supreme Court under a legislative provision so permitting.  The Chief Justice of the Supreme Court of the United States was none other than Adams’ appointee John Marshall who, like Adams, was an ardent Federalist.  Indeed, his appointment to the bench was part of a Federalist Party power grab - the Midnight Judges Act.  We forget how young and vulnerable this nation really was.  And, we forget that those who founded this nation were men and not angels.

Surely, Marbury presumed, Justice Marshall would see fit to grant him his commission.  So, it was an historic and game-changing moment when the Court ruled otherwise.  On the one hand, Justice Marshall minced no words chastising the president for failing to make good on his predecessor’s appointments; the commissions were signed and ready to be delivered.  On the other hand, Congress erred in its statute granting right to sue directly in the Supreme Court as Article 3, Section 2 of the Constitution grants original jurisdiction to the Supreme Court in limited circumstances.  Marbury v. Madison’s almost quaint and petty circumstances permitted the Court to become Supreme in the truest sense; there was no fear of retribution when Marshall criticized a sitting president or corrected Congress or determined a result with which no party was happy.  Whether popular or unpopular, Justice Marshall ensured an independent judiciary with this brilliant split of the baby.

Marbury, justified in his anger and his cause, lost as the court had no jurisdiction to hear the case.  Had Marbury sought his commission in an inferior court, he likely would have won, but he hedged his bets on the Federalist court.  John Adams had to rue the rushed appointment of Justice Marshall, right?  Maybe at first, as moments in nascent nations tend to try men’s souls.   But, many years after this fateful decision, in a testament to his own character, Adams declared that John Marshall was a gift to the nation and appointing him was one of his proudest accomplishments.

Putting this history into context, the current investigation of a judge sitting in a busy, low level trial court is an attack on justice itself.  American courts are courts of the people.  They are not arms of the prosecutor or platforms for the powerful.  They are, indeed, a place where individual liberties should be celebrated. 

Today, the Executive branch, in the form of the District Attorney is fighting a petty, undignified battle about which John Adams and Thomas Jefferson and James Madison would be ashamed.  For all of their differences and for all of their human foibles, our Framers genuinely believed in the rights established in the Constitution; we in Massachusetts are fortunate that one of these men was the architect of our own government.  Losing a battle in defense of democracy is noble; the Framers understood that men could more easily be likened to fools than angels and yet trusted people to do the best they could, allowing for history to answer the question of whether men could govern themselves without a monarch.

When powerful people in any branch of government abuse authority in order to deprive individuals, especially the most vulnerable among us, of their right to be heard, to find fairness and fight for liberty, we have a duty to halt that practice.  The strength of this nation rests on a foundation balancing rights, responsibilities and freedom.  Thus, when a judge of any court protects individual liberty and seeks to find the better angels in all who appear before him or her, that judge is a gift to the nation.

Where You Come In

Olympus, where the best in the world of varied sports – some we know well, others more obscure – gather and compete for gold, for glory, for honor.  As the titans of their sport convene demonstrating speed and strength, agility and power, the rest of us watch in awe.  We do not fight, we do not brutally attack our neighbors.  Instead, we take pride in our own athletes as if we had something to do with their hard work and glorious achievements and we cheer on athletes from distant lands whose stories have touched us  or whose prowess cannot be denied. We buck up those who stumble  and rejoice with history makers.   For a few weeks, we share a common bond through sportsmanship.  

We watch with amazement and believe we will never forget how the world can get together to celebrate diversity and unity in human form.  But we do forget as we collapse into routines of mediocrity and ennui.   Our daily lives are so ordinary and average that they cannot compare to the sparkle of Olympic success. 

In the 1840’s in Boston, MA  a very average man had a very noble idea about the very opposite of our great Olympians.  John Augustus asked the Court to spare a poor drunkard time in jail; he asked to bring this bedraggled man into his home to help him heal his ways and chart a new course for his life.  He then did this again and again and again – not only with alcoholics, but with thieves and wayward children.  This cobbler’s valiant efforts helped thousands of people.  He did not fly over parallel bars or score goals or move himself through water; he made shoes.

The pressure we place on ourselves taunts us to be everything or nothing at all.  Go for gold or just forget about competing.  We have decided that it matters so much where we come in, and if it is not first, it is unimportant.  There are the OnePercenters and the NinetyninePercenters.  We no longer get an education, we use college for trade school to get “good jobs at good wages.”  Literature?  History?  Art?  Thought?  Wastes of time, we moan – we want something more mechanical and concrete that will allow us to monetize whatever mediocre abilities we have for our own advantage without worry as to consequences.  We no longer think of creative ways to help our fellow citizens, we are too busy stepping over them as we climb our imaginary hill pretending we are great and glorious.

In our quest, we have forgotten how to think, how to identify and then solve problems.  High school graduates might be able to read but they cannot comprehend.  College students focus on acing tests and never learn how to broaden their thinking.  Why should lawyers analyze facts and legal conclusions of a case when the arbiter has not bothered to read it?  Why should doctors puzzle out the reason for the pain when cure-all pills are widely available?  

Education should spark curiosity and wonder; we should not think of it as a means for spitting back things someone else already knows.  We want easy, uncomplicated, fill-in-the-circle-with-a number-2-pencil tests that do not challenge us or delight us or allow us the joy of discovery.  We want success in money, perhaps in fame, and definitely in ease.  

There is "value" in certain subject matters and not others because of the possibility that they may lead to money in our pocket rather than our highest potential.  This cretin approach we have the audacity to call success.  Winston Churchill declared that success was the ability to go from failure to failure with no loss of enthusiasm.  He may have been nodding to Jefferson or Einstein or Salk.  He could not have fathomed a world where mistakes were taboo.

This brings us back to Mr. Augustus.  There is not much known of his higher knowledge or his wealth or any achievement he may have had, really. Most of us have never heard of him.  But, think of this: by putting himself in service to others with a then innovative idea, his neighbors and his city prospered.  Each person he helped who managed to get a job or provide a service or create a useful item became a wage earner able to then share and spread that wealth rather than squander public funds in a jail cell.  He met with resistance, of course, by the jailers who earned their pay by the number of humans they warehoused.  The more things change the more they stay the same.

Today, the budget for corrections dwarfs that of indigent defense, prosecution, and basic court function combined.  True, corrections officers have good jobs at good wages, but their livelihood depends on the misguided warehousing of human beings.  Just as their predecessors, they will push back.  

Think of the incarcerated not as different from “us” but as part of the fabric of our community.  If it were our child we would seek to instill some sense of self worth with education, appropriate job training; we would encourage opportunities to think, to learn, to revel in verse and prose, to contribute to the larger community in positive, meaningful ways.  

So, what to do with the disgruntled prison workers if this leads to them with fewer jobs in their selected industry?  Same thing: education, appropriate job training, and the opportunity to think, to learn, to revel in verse and prose.  This is what we are doing, with varying success throughout the nation with all industries that have died off or been transported to other markets.  Why not do this with prison personnel as well?

In this tight economy, we can and must be creative with public dollars.  Augustus began his experiment immediately following the Panic of 1837 – times were tough then as they are now.  Jobs were scarce as they are now.  Dignity was as hard to come by as it is today.

We gain nothing from long prison terms save a false feeling of superiority over our neighbors.  We harshly punish petty crime and yet we live in a nation where first offenders are committing mass murder.  We wring our hands and are shocked, shocked when we discover that the weapons were all purchased legally.  The alcohol was purchased legally, too, when the drunk driver kills a bystander.  At the risk of offending the entire legal community, the drunk drivers should be treated like the mass murderers while the poor people trying to survive in an often hopeless neighborhood should catch a break.  Why is there a “program” for the inebriated who risk harming and killing people but the “program” for the indigent is prison?

If we stopped thinking of education as a means to an end, but rather as a starting point and we stopped looking at our less fortunate neighbors as a nuisance to lock away, we could creatively work together not only to end mass incarceration but to improve our entire society and economy. Are we better off with more prisons and prisoners costing us upwards of $45k per year per inmate or spending that same money for cleaner parks, better roads, cleaner energy, auditors to keep folks honest, more crops for local produce and small animal husbandry, better and more diverse transportation?  These are really worthwhile jobs; where are our priorities?  

Those competing in the Olympics, whether they stand on the podium or not, have made personal sacrifices to achieve their mastery.  Through perseverance they have made mistakes and have learned from them.  They are exceptional.  But then, so too was John Augustus exceptional.  In difficult economic times, he saw that imposing severe prison terms for people with potential was not helping anyone.  

As the world comes together to cheer, as we celebrate America’s and the world’s diversity through great athletic achievement, let us consider that in each ordinary individual lies some level of ability.  The vast majority of us will never be world champions.  We need not attain or even pursue gold, it is okay to keep trying and failing and trying again to form a more perfect union, establish justice and ensure domestic tranquility.  Regardless of where you end up, this is where you come in.