June 2, 2020
By Patricia Sohn
On the same day in May, 2020, two seemingly unrelated countervailing events occur.
Revelers in Missouri hold a pool party with large crowds of guests in close quarters, with no masks, spreading whatever remnants of Covid-19 they may. Such an event endangers the entire country, given the rapid airborne spread of the virus. Officials warn of dire consequences if social distancing emergency Orders and guidelines are not followed. But they make no arrests. According to video captured at the event, the overwhelming number of guests are white. Apparently, police are unaware that Emergency Orders are Law, albeit not statute – when the violators are white.
Also on May 25th, George Floyd, a black man, was strangled and asphyxiated to death with a knee hold to the neck that apparently affected one or both of his neck arteries to the extent that he did not get sufficient blood to his brain. At the same time, two additional officers put pressure on his back, making him unable to respire. The officer charged with murder in the case had multiple complaints against him within the Minneapolis police system. One of the officers involved was subject of a lawsuit.
Police are trained extensively in use of lethal force, including the lines between safe and unsafe use of neck holds and other pressure to the neck area. Even elementary martial arts or self-defense training for non-experts like myself informs and warns about using pressure to this area. In my very limited personal experience, the demonstrations and warnings in this area are extensive and emphatic.
The white officer involved was shown on video applying pressure and then releasing that pressure, applying pressure, and then releasing that pressure again – all with his knee. He appeared to enjoy the activity, and even appeared to see himself as giving a sort of public demonstration on the application of such force, looking out to some perceived audience. He had a calm smirk on his face as if to say, I’m not afraid of this guy. See?! That is my read of the video, for what it is worth.
George Floyd was suspected of passing a counterfeit $20 U.S. bill. He was suspected, which means alleged, not proved. Even if it were true that he did pass such a counterfeit bill, cruel and unusual punishment, torture, terrorizing, unlawful imprisonment, and death are not the punishments for doing so, and a police officer is not judge and jury. By my read of the press, most Americans seem on the same page about this part of the issue.
I have seen no inquiry into the question of how Mr. Floyd may have acquired such a counterfeit dollar. Counterfeiting requires big money; it requires exceptionally high-tech art and printing facilities. It is the sort of thing that one might be forced, under duress, to test in practice for the makers of such counterfeiting endeavors. I have seen no suggestion of any likelihood that George Floyd might have been actively involved in counterfeiting himself. So, if he did indeed pass such a bill, where did he get it? And why?
The riots are supremely unfortunate and also supremely predictable. The George Floyd incident is only representative of abuse that African-Americans and other People of Color everywhere in the country experience every day. In my own observation as a political ethnographer of the Middle East – one who is nonetheless an American, born and bred, who grew up in Alaska, Vermont, and Florida – People of Color experience the greatest amount of abuse in the courtroom rather than at the hands of the police, per se. That is, while we hear about deaths at the hands of police – which are important and must be answered – it is nonetheless the everyday abuse at the hands of Courts that creates the greatest injustice and, thus, the greatest amount of fury and rage over time among People of Color in the United States of America. To my own observation as a scholar who has published about comparative judicial politics, that is, the politics of courts and constitutionalism outside the U.S. (particularly in Israel), here it appears to me that the greatest problem lies at the local level in lower courts, which are rarely reviewed in either their dockets or judicial decisions. That is, by contrast to some other countries (including France, Israel, and Japan), which have standardized, systematic, randomized and effective annual review processes of judicial docket and decision making for individual judges, executive and legislative branches at the state level in the U.S. do a supremely poor job of regulating and reviewing courts on what cases they accept de novo, and whether their decision making actually relates to statute or Constitution as written.
The idea that judges — unlike every other human actor in the political system — can be trusted to act wisely and within statute and Constitution without effective annual review of their dockets and decision making is highly unrealistic. For some countries, it is seen as the height of irresponsibility, veritably throwing all-powerful human individuals at society like randomized swords to act without restraint. That is, at best it creates an environment of fear and unpredictability at the local level for at least some individual citizens; at worst, it creates arbitrary rule, something one step from authoritarianism in practice. By our Constitution, Law as enforced in Courts must be transparent, easy to understand, have predictable outcomes, and be applied equally to all individual citizens. Today, in practice, it is opaque, obfuscating, and contingent. Said differently, today in practice Law and Courts may be a bit more transparent and predictable if you are white, secular, and wealthy. If you are a Person of Color — or if you are white and either poor or religious — it is arbitrary rule and capricious par excellence.
By some reports, some lower court judges in the country believe that Common Law means that they can create law de novo in the courtroom, and that statutes passed through legitimate political processes by citizens and legislators alike are nothing more than “guidelines.”
For African-Americans and People of Color, these daily acts over the course of nearly 60 years since the supposed end of Jim Crow create the sort of rage seen in the riots we are experiencing today. That is, again, the riots are terrible and predictable at the same time.
It is no secret that there is a widespread feeling in communities of color around the country that judges do not follow statute or Constitution when it comes to People of Color. Works in sociology and criminology have shown, decisively, over the course of more than forty years – absolutely systematically in my opinion – severe race and gender bias in application of the law, in arrests, in the plea process, in courtroom decisions, in sentencing, and of course in prisons as well. Only a few of those issues lie with police. Most of them lie in the courtroom, and with the environment created by self-restrained or not-self-restrained courts when it comes to treatment of People of Color. At the very least, People of Color report severely differential treatment. Those reports, in my view, correspond with national, Federal statistics — particularly relating to drug crimes and arrests. It is a travesty to the extent that I believe we can no longer call ourselves a Democracy, if ever we should have.
That is, the Federal government acts as a Democracy. In local practice, however, in too many places, we range from democratic to arbitrary to authoritarian rule when it comes to individuals of color, and women. Whether it is a matter of states — and which states — is beyond my ability to comment, as I am trained in Comparative, and especially Middle East, not American politics. I leave that question to the Americanists among us. However, as a well-traveled, informed citizen and political ethnographer I can say that this point appears to apply to the local level in most states.
We are not a Democracy if you are a person of color, or a woman. Important rights are not applied; in some places, this behavior is systematic, hidden, and thus difficult to report. No one can be expected to litigate or battle for their rights every day. The burden is on the state to enforce rights and to ensure that public officials — who are on the pay of the people — enforce them actively. More to the point, if rights are not respected in practice, they do not exist, and we cannot call ourselves either a Democracy or a rule of law society.
It is a Constitutional Crisis. At the local level, living in the South, many people do not believe the Constitution applies to them, or to their treatment of individuals in their communities. Even some local authorities believe that the Constitution does not apply to them, or to their agency or institution in practice. How we reached such a state is beyond me, but it appears to be the case.
Rights do not exist where they are not practiced.
I have heard even colleagues at the national level suggest that everyone has to fight for their rights as a philosophical point. That is not true. If you want to be a rule of law society and a Democracy, you respect rights in practice. If you do not practice them – for everyone – at the local level, then Comparativists like me among us will begin to highlight it in Comparative terms. If you want to descend into repressive law instead of organic solidarity, we will begin to be compared to less enviable countries and polities.
For scholars, it is the difference between mechanical and organic solidarity. A rule of law Democracy rules by organic solidarity. If you do not have organic solidarity, you do not have Democracy; that is, in our case, you do not have buy-in by those claiming to be the majority hegemon. Without it, we are nothing more than a post-slavery, post-Apartheid political system; that is, still deeply informed by slavery and Jim Crow at the levels of society, institutions, and daily practices in both.
The problem with racism in this country is at the local level. We all live at the local level. It is locally that people engage in racism, misogyny, breach of other people’s rights, illegal processes, and civil rights violations within and among citizens and local authorities. People know when they are doing it. They are neither stupid, uneducated, nor uninformed. They just think that they can get away with it. As long as no one who cares is watching and enforcing statute and Constitution, they do get away with it. To the extent that they do, we are not a Democracy in practice. If we are not a Democracy in practice, we are not a democracy in fact.
Fix it, in my view, or expect more of the same (e.g., riots) not for a few days or months, but for decades. I think, very unfortunately, that this is our American Spring. Or, because it began at the end of May, perhaps we should most aptly call it, the American Summer.
In my own view, Trump stands the greatest chance of addressing the issue and correcting it. The heritage of Southern Democrats is so full of dissimulation, corruption, back-stabbing promises, racism, and misogyny that many of us will never trust that party on issues of race or gender — at least, not in the South.
I am not making a slam on the South. It would be inappropriate to make such a claim, as this problem is country-wide. The West Coast is no better; it demonstrates its daily assaults on the humanity and equanimity of People of Color and women in its own ways. Civil rights violations are conducted daily at the level of society and state at the micro-level around the country. Courts and plea processes are the worst culprits at the institutional level. Anyone who wants to say racism and misogyny are Southern and Midwest problems is drowning in false consciousness.
When I hear people talk about it out loud – for some people do have that audacity – the rhetorical line is usually related to “we” white people being “here” first. Asians first arrived to the Americas at least 10,000 years ago. Asian traditions suggest that we have been here ever since. Those are different from Anglo-American traditions. No surprise. Each people represented within this beautiful country has its own traditions. It is the effort to create shared traditions that have and will continue to assist us to build solidarity — unity across the myriad of peoples who make up the U.S. citizenry — and to keep it.
Spain arrived to the Americas in the late 15th century. Africans arrived with them. England arrived later, in the early 17th century. In no way did Anglo-Saxon, Northern European, or even Germanic peoples get “here” first.
Perhaps it is time to begin re-framing the political rhetoric on “nativism,” e.g., who does the United States of America belong to, and who belongs to the United States of America. Africans, Asians, Native and Latin Americans were part of the construction of this country from start to present at the levels of institutions, infrastructure, culture, society, and politics. The “history” of exclusions since the arrival of Anglo-Saxon peoples from both political franchise and societal hegemon suggests Apartheid, not Democracy. We were used to help build the institutions – and not given credit for that, or infrastructure, culture, society, politics, etc. These exclusions remain a present in local practices and should make Connecticut – and most of us – blush at claiming us to be a Democracy in any way other than white, and maybe even, still, white-and-male.
Correct the problem in local practices or expect at least one generation of American Summer. Maybe two. That is my prediction.
It is no gift to accept and treat everyone – even people whose skin color or gender you fear – with the rights that apply to us all on paper. It is the simple question of whether you will be called a Democracy – by me, by some other scholars, by the rest of the World, and by history. Believe it or not, we have a finger on rhetoric. You do not get to call yourselves a Democracy if you do not behave as a Democracy at the level of local practice in both society and state institutions – all state institutions. If we continue in this line, we may begin to be compared to regions such as Eastern Europe – albeit we as a much larger, Federated system – and we may find it increasingly difficult to have leverage as a “Light of Democracy” in international affairs. And we should be just that, because we have been and are a light of Democracy in many ways. But, race and gender are our Achilles’ heel. Our approach to these issues at the micro-level must be healed.
And, unlike states’ rights advocates, I believe the Federal level, the Federal Government, does an exceptional job on these issues most days of the year. I believe it is the states that are failing us on these issues, in particular by not engaging in self-regulation of officials of all branches of government. If we do not self-regulate our own officials, how will we ever self-regulate in terms of our citizenry? We cannot expect our citizens to do better than our officials in their everyday practices.
Conceptually, I think, there needs to be a shift, particularly within the judicial system, from Control to Consent. Written statute and Constitution are the social and political contract that bind citizens to the nation-state. Without respect and equal enforcement of them, we have lost the consent of the governed. Without the consent of the governed, there is no legitimacy to rule.
Every society reaches a tipping point. This, I believe, is ours. And, while no one likes violence – I, in particular, advocate against violence and favor non-violent civil disobedience, only when very necessary, and in the traditions of Gandhi and Mandela – severe upheaval is inevitable if the country does not force itself all the way to the local, individual level to live by the principles it claims in written statute and Constitution. Upheaval is no reasonable person’s preference, but it is an historical likelihood under those conditions — or, at the very least, a strong possibility. To the extent that we do not practice Democracy, we are not a Democracy. And that is a shame, because our political system – on paper – is as perfect as any political system that was ever created by a human society. In that, I am a true believer. The goals are valid, they are Right. Call me a True Believer in the American Way. I will not give up on it; in my humble opinion, neither should any of us.
Dr. Patricia Sohn, Ph.D. is an associate professor. She specializes in Middle East (MENA) and Israel/Palestine politics, and particularly the intersection of religion and politics, courts and politics, and gender politics. She has interests in historical institutional, political sociological, micro-level, and grassroots analysis of state and society. A prime example of the American melting pot, she has heritage from Prussia, the Philippines, Spain, Ireland, and Holland.
Note: The views herein represent only myself, not my employer. -PJS