LAW vs. JUSTICE: My Remarks at the Germantown Jewish Centre’s 2018 Yom Kippur Program
The topic of today’s program is “Law vs. Justice.” As an attorney, I often think about the two concepts but rarely in opposition to each other. I know full well, however, that the two are not synonymous. Particularly as an African-American, there have been many occasions when I have considered the two to be in conflict. Law does not always produce justice. To the contrary, it often codifies, preserves or perpetuates injustice.
Last week, I attended a convening in Chicago of all the ACLU executive directors from around the country. A major feature of our day-and-a-half meeting was training by the Management Center on Managing a Diverse and Growing Staff. As with all of their trainings, I learned a lot. But one thing in particular the facilitator said resonated with me. She said: “Where you sit determines what you see.”
I was born and raised in Wilmington, NC — fortunately (after Hurricane Florence), my family is fine, though some remain without power. I was the third of five children, raised on welfare by a single mother, who supplemented that meager income with under-the-table work as a domestic. We were poor, often without water or electricity and occasionally food. When we were able to move to a housing project when I was in third grade, it was a major step up. At a minimum, we would always have water and electricity, which came with the apartment.
In 1984, I became the first high school graduate in my family, in a couple of generations. I was the first African-American graduate of the local private school, that had been started in 1967 as a segregation academy. When I was home for vacation the last week of August, just a few weeks ago, the confederate iconography, which usually faded into the background in years past, was more conspicuous than it had ever been. I even wrote a blog about it — that’s what nerds do on vacation. The blog talked about how little I knew or had been taught about Wilmington’s substantial role in the Civil War. Wilmington was the second most fortified city, behind Charleston, on the eastern seaboard. Of course, that I did not learn about the Wilmington Race Massacre of 1898 until I was in my late 30s/early 40s and living in New York City means that I should not have been surprised not to have been taught this history either.
I was six when I decided I would become a lawyer. I didn’t know any lawyers, and I didn’t really understand what lawyers did. I was an inquisitive kid — some might say nosey — who asked any and every visitor to our home as many questions as my little mind could conjure. On more than one occasion, I heard: “Slow down, kid. You sound like a lawyer.” And I was off to the races.
I observed and FELT the injustice around me. Mistreatment, lack of opportunity, discrimination based on race, gender and socioeconomic status were the norm. When I knew better, I decided I would become a civil rights lawyer.
Those experiences certainly color my perspective on law and justice. I daresay they inform what my experiences WITH law and justice have been, too. I also have written blogs about being racially profiled, in Wilmington and elsewhere, recounting some of those experiences.
Where I sit, frankly, is from the perspective of someone with second-class citizenship, from birth to death. [That citizenship is even lower — third or fourth — if you are poor, female, transgender and/or formerly incarcerated.] As someone who considers myself to be a second-class citizen in America, I ask, for purposes of today’s program, what does the law have to say about that? My answer is that the law, my chosen profession, is inadequate, in and of itself, to convey justice.
America prides itself on being a country defined by the rule of law. I get that. When (at least from their perspective) building a nation from scratch, shared consensus around rules, roles, and responsibilities, a system of checks and balances, the social contract — are all essential for an ordered, less chaotic society. But who makes these rules? Who is applying them and who is enforcing them? Where do they sit? The answers to these questions matter. It is why we care about Brett Kavanaugh’s nomination to the Supreme Court. And why we vote in local, state, and national elections for those who best represent our values.
Moreover, the answers to these questions explain, in part, the disparate enforcement, application, and impact of laws. And what exactly do we mean by “the law”? When I was growing up, older members of my southern family referred to the police as “the law.” We feared them. We fared no better with judges and the criminal justice system writ large. What is old is new.
We also know that the law all too often gets it wrong:
Slavery was once the law of the land.
The U. S. Supreme Court, the very highest court in the nation, created some of the very worst laws in our country’s history:
The denial of citizenship to those of African ancestry in Dred Scott.
Upholding the internment of Japanese Americans during World War II in Korematsu.
The doctrine of separate but equal in Plessy v. Ferguson.
And it’s not just the Supreme Court — federal and state courts, legislators and politicians were and are complicit, too:
Think DOMA — the Defense of Marriage Act; all the many laws regulating a woman’s right to choose or seeking to suppress the right to vote; executive orders creating a ban on Muslims entering our country.
The law has failed me on a personal basis, too. When my aunt was murdered in the early 1990s, I promised my cousins, as a fairly idealistic recent law school graduate, that her murderer would be prosecuted. We were all devastated when he was not. The life of a poor black woman — under the law — doesn’t always have much value.
That said, it is a beautiful thing when the law gets it right:
Marbury v. Madison (creating our government’s system of checks and balances); Brown v. Board of Education (separate is inherently unequal); Gideon v. Wainwright (right to counsel for the poor in criminal cases); Miranda v. Arizona (right against self incrimination); Roe v. Wade (constitutional right to an abortion); Loving v. VA (ending anti-miscegenation laws); United States v. Nixon (executive privilege is neither absolute nor unqualified); and cases upholding affirmative action, outlawing sodomy laws and allowing for marriage equality. And legislation: the Civil Rights and Voting Rights Acts of the 1960s, to name a few. Some Pennsylvania cases — Applewhite (striking down voter ID) and Whitewood (securing marriage equality before it became the law of the land) — are further examples of the law getting it right.
The law, flawed though it is, is without question a valuable tool in the fight for equality AND justice. Justice, to me, though, is the more worthy pursuit. It is bigger than the law. It’s about what is fundamentally fair.
At the ACLU, we love equality. We want the law, at a minimum, to treat us all equally and to not confer advantage to already privileged groups while disadvantaging other historically marginalized ones. We also care about justice and treating people in accordance with what they need. Acknowledging and helping to repair the misdeeds and trespasses against them. Meeting them where they are. Tikkun olam. We want social justice and racial justice, smart justice, reproductive justice, and justice for immigrants and members of the LGBT community.
Don’t get me wrong. I like rules. A lot. In fact, I took a personality test a couple of months ago that concluded: “I value rules, tradition and authority.” That said, I like justice even more and, on occasion, I find myself violating rules. Like today. Rabbi Zeff asked that I speak for about 10 minutes. I fear I am dreadfully over my time. For which I apologize.
Thank you for your time!