Written by Hazel Weiser
This morning NPR broadcast a report on the millionaire contributors to the various Super PACS which will only fuel the vitriol of this presidential election cycle. The list of contributors, those who have given a million or more and to which PAC, is available on line. Robert Smith, the NPR reporter, focused on Steven Lund, who had set up a phony corporation to hide the fact that he had given $1 million to Restore our Future, the Super PAC supporting Mitt Romney. I could have easily slipped into cynicism, believing that Citizens United (2010) was indeed the death knell of our democracy. I could have slipped deeper into despair thinking that the U.S. Supreme Court might overturn Citizens United, but not before the Super PACS had done their damage and gotten Obama out of office. At first I tried to elicit Stephen Colbert’s satire, his Super PAC, Making a Better Tomorrow, Tomorrow. But even Stephen’s wicked humor didn’t help. That’s all I could conjure was a scene of depressed and disappointed would-be voters who might just sit out this election. I was recognizing the symptoms: cynicism, passivity, and victimhood. These are self-government’s deadly enemies.
That’s when I thought about John Payton, former President and Director-Counsel at the NAACP Legal Defense and Education Fund (LDF), who died too young and quite unexpectedly on March 22, 2012.
John Payton was the keynote speaker at the March 2010 “Vulnerable Populations, Economic Realities” conference organized and hosted by Golden Gate University School of Law and co-sponsored by SALT. He had been invited to the conference by Golden Gate’s Dean Drucilla Stender Ramey. After he brought an early morning crowd of law professors to our feet in rousing applause, Dean Ramey persuaded him to contribute his speech as the opening essay to the volume Golden Gate and SALT edited Vulnerable Populations and Transformative Law Teaching: A Critical Reader (Carolina Academic Press 2011). Two interns who spent the summer 2010 with SALT, Madeline Zuckerman and Brian Elliot, were asked to go through the essay and complete it with citations to authorities.
The title of John Payton’s essay is “The Myth of Our Post-Racial Society.” It is a guaranteed antidote against cynicism, and I wanted to share with you some of what John said that morning in 2010. (Or you can read the entire essay in Vulnerable Populations and Transformative Law Teaching: A Critical Reader. Make sure your library has a copy!)
The LDF was started by Thurgood Marshall with a mission that remains vital today: “to transform this country into the inclusive democracy it must be.” Western Europe, with its history of homogeneity, is more comfortable with the “commonality of the word ‘we’, ” John began. Our country is heterogeneous. “In our American terminology, racial diversity presents barriers to a sense of commonality.”
As a democracy, we depend upon being peers among ourselves, not necessarily equals, but peers: “people who have some equal respect about each other. It depends on that sense of commonality… .” Therefore, “we the people” must include everyone. “…if you are excluded from power, and from political participation, or unable to participate in our economic life—you are not a peer in the sense that I have used the term, you are not in the “common” in the sense that I have used the term.”
“With respect to black people, obviously race was used to prevent all commonality.” It was not just black enslaved people who were excluded, but free black people as well. The Dred Scott (1856) decision made that very clear. “Distrust, ‘otherness’ was baked right into our culture.” Despite the Civil War, the passage of the Thirteen, Fourteenth, and Fifteen Amendments, this distrust and otherness continued as Reconstruction collapsed and Jim Crow took its place. By 1896, the Supreme Court legitimized in Plessy v. Ferguson the phrase “separate but equal” which really meant “separate and degradingly unequal.”
As a trickle of black men became lawyers despite all of the barriers put up to stop them, they discovered the extraordinary power of the legal profession: the ability to serve subpoenas, require production of documents, ask questions of persons under oath, punish those people if they wouldn’t speak or spoke untruths. “We are an empowered profession in exactly those ways.” And so began the line of cases that we know so well: Missouri v. Gaines (1938) when an all-white law school was held unconstitutional; Shelley v. Kraemer (1948), white-only housing held unconstitutional; Sweatt v. Painter (1950) inferior black-only law school held unconstitutional; and Brown v. Board of Education (1954) any enforced racial segregation in public education held unconstitutional.
Here is where the John Payton antidote to cynicism takes hold: “These cases weren’t about vindicating existing rights. Black people had no rights. Those cases were about creating new rights.” There were no precedents, there were no cases to rely upon. Armed with qualitative analysis from social science and the concept of social justice, the LDF lawyers challenged legislative power that used the force of the state to subordinate black people.
And so the LDF, through the assertive and aggressive use of law, revitalized the Fourteenth Amendment. “More than that, these cases fueled a new sense of racial justice and equality. And the steady establishment of rights in those cases brought about the power to assert those rights. If you have rights, you have power.”
Here Payton distinguished between the rule of law and the rule of just law. We must be committed to the just rule of law.
“I think lawyers have special responsibilities that come from our empowered status. It is more than standing for the rule of law, it is standing for the rule of just law. Black and white. Latino, Asian-American, and Native American. Men and women. Straight and gay. Rich and poor. All of us. I believe all of us must play a role in transforming our society into the inclusive democracy it must become. Let’s get to work.”
Yes, let’s get to work.