The Liberal State Has Its Limits – II

LAST Saturday afternoon the Reverend Al Sharpton led a group of several hundred protesters outside the Riverhead, Suffolk County court where John White, a black man, was convicted of manslaughter. John White accidentally shot and killed a young white man, Daniel Cicciaro, Jr., who, with two other angry white teenagers, trespassed on Mr. White’s property one night to threaten Mr. White and his family. Daniel Ciciaro, Jr. and his friends learned that Mr. White’s 19-year-old son, Aaron, intended to rape a female friend of the teens. At the trial, this female friend testified that it was a “hoax”; the conflict began with a bogus MySpace posting claiming that Aaron wanted to rape her. John White and his family live in a predominantly white community of Miller Place, Suffolk County. At the rally, John White re-asserted that he was simply trying to protect his home and his family when he grabbed a gun and went to face the teens. John White claimed the gun fired accidentally when Cicciaro lunged for it. Mr. White faces a potential prison term of 5 to 15 years in prison. The Reverend Al Sharpton told his supporters that the prosecution of the case was unjust. Suffolk County, he said, is not a place for equal justice for blacks and whites. The civil rights activist rallied the press’ attention at the rally. “We will raise this to a level of national attention until those young men are brought to justice”, Mr. Sharpton declared.

The mainstream media, in turn, somehow declined to broadcast the demonstration; they made no mention of the event.

The only period in recent history where it was clear to the most novice observer that deep, dysfunctional racial disparities existed throughout American society is the civil rights movement that occurred over forty years ago. But we have travel back in history at least four centuries before this, where natural law, a central European philosophical pillar anchoring the legal foundations of this republic, cemented a Manichean or bi-polar vision of American society: one white, the other black. The natural law tradition dates back to sixteenth and seventeenth century Europe, where, parroting the triumphs of natural science, British empiricists built their theories of natural rights on the most basic of human needs and desires – a vision of human beings in a state of nature. Natural rights are transformed to civil rights when the nation’s laws aim to protect all of society’s citizens, regardless of color. Or so it seems in the abstract. Since government can grant all of its citizen’s civil rights, thereby incorporating minority representation, the government reserves the right to nullify them. Herein lies another limit of the liberal state: its laws cannot adequately accommodate heterogeneous, pluralist populations (and here we speak of all ‘minority groups’, those groups based on sexual orientation, and those groups based on religious affiliation). Carl Schmitt, an influential Nazi theorist and an apologist for Hitler’s democratic rise to power, asserted that liberalism is meaningless because it requires a commitment to a heterogeneous population. Schmitt argued that a political community, to be vibrant, must be homogeneous. And, following Schmitt, Hitler sought to create a race of Aryans. According to Schmitt, liberalism stood only for marketplace and profit; the sovereign state serves no other purpose than to encourage individual greed. However well dressed a swine may be, a swine is still a swine. And since the foundation of all laws in this republic rests on natural law, all other rights are secondary. This is the precise reason why democratic participation must be vigorous at all times.

There are numerous instances in American history where legal rules lead directly to social injustice; John White’s case is a recent example. Centuries before John White’s ruling the U.S. Supreme Court ruled that fugitive black slaves were property according to natural law. There was a time when black slaves escaped their white master’s grip in a desperate search for freedom and, when they were captured (if they hadn’t been shot and killed), the courts demanded that they be given back to the bounty hunters who captured them. The courts decreed that black slaves be legally defined as property. Most state legislature fashioned Black Codes. These laws imposed unbearable restrictions on freed slaves, such as prohibiting their right to vote, forbidding them to sit on juries and limit their right to testify against white men, among other things.

In 1892 Homer Plessy was arrested for intentionally violating the 1890 Louisiana Car Act. After boarding the East Louisiana Railroad and informing the conductor that he was Negro, Homer Plessy took his seat in a coach reserved for white passengers. In Plessy v. Ferguson 163 U.S. 537 (1896), the U.S. Supreme Court declared that a Louisiana law mandating separate but equal accommodations for blacks and whites on intrastate railroads was constitutional. The Courts’ majority relied on West Chester & Philadelphia Railroad Company v. Miles 55 Pa 209 (1867), where the Pennsylvania Supreme Court relied on natural law to justify racial segregation on trains. In 1867 the Pennsylvania Supreme Court ruled that:

“Why the Creator made one [race] black and the other white, we know not; but the fact is apparent, and the races distinct, each producing its own kind, and following the peculiar law of its constitution. Conceding equality, with natures as perfect and rights as sacred, yet God has made them dissimilar, with those natural instincts and feelings which He always imparts to His creatures when He intends that they shall not overstep the natural boundaries He has assigned to them. The natural law which forbids their intermarriage and that social amalgamation which leads to a corruption of the races, is as clearly divine as that which imparted to them different natures. The tendency of intimate social intermixture is to amalgamation, contrary to the law of races” [italics mine].

The mechanics of the law afforded no option but to sanction legal segregation based on race. Plessy v. Ferguson remained the preeminent legal justification for racial segregation for the next 50 years.

Less than a month ago, the U.S. Supreme Court ruled that judges may significantly stray from existing sentencing guidelines, thereby exercising personal discretion in handing down sentences for those trafficking in crack and powder cocaine. By a ruling of 7 to 2, the Court allowed judges in lesser courts to address the abysmal racial disparity in the criminal justice system. In 1986 Congress adopted a sentencing policy on those who commit crimes involving “crack” cocaine. They are to be punished on a 100:1 ratio compared to those whose crimes involve powder cocaine. Under the sentencing guidelines, an individual who deals five grams of crack cocaine faces the same sentence as a defendant who deals 500 grams of powder cocaine. However, low-level drug dealers who deal in powder cocaine, mostly Black and Hispanic, are more easily targeted by law-enforcement than Whites, who deal with “crack” cocaine behind closed doors. The race and class bias of the new sentencing laws soon became clear: the ratio of minority to white prisoners increased exponentially. By the late 1990’s, blacks represented 58% of imprisoned drug offenders, despite constituting only 13% of the nation’s drug users. Yet the mandatory sentencing laws are not the only form of legislation undermining democracy. The Welfare Reform Act of 1996 contains a provision stating that anyone with a felony conviction for using or selling drugs is subject to a lifetime ban on receiving government financial assistance and food stamps. In 1998, Congress passed a similar bill preventing drug offenders from receiving government grants or financial aid for college education. As a result, tens of thousands of college-bound applicants have been denied federal aid because of prior drug convictions. So the liberal state does have limits that severely curtail democracy. And only a vigorous citizenry can fight to have law intersect with morality.

The writer is a recent revert to Islam and can be reached at: drummondhugh@verizon.net