Democracy Held Hostage: The Case of a Street Name

Claims of systemic racism can also be attacks on democracy itself. In fact, if overdone, such claims may themselves be racist. The situation would then be that of racists holding democracy ransom in the mistaken belief that the whole must be consistent with the interests of one of its parts to be legitimate; otherwise, the democratic principle of majority rule is itself presumed to be invalid. The case of the change of a street's name in Kansas City, Missouri, can serve as a case study.

On November 5, 2019, voters in Kansas City voted overwhelmingly (nearly 70%) in favor of restoring the name of a street to The Paseo (inspired in 1899 by Mexico City’s mayor, Paseo de la Reforma). A mere two months before the vote, the City Council had changed the street name to honor Martin Luther King, Jr, an American civil-rights leader in the turbulent 1960s. Members of the Save the Paseo movement said that their motive was historical preservation rather than racism. According to one member, the Paseo was “historical I people’s memory” rather than just on paper.[1] The members “were upset that the council [had] made the change without input from those who [lived] along the street.”[2] A city statute required such input, according to the members. The mayor admitted that the city had not engaged with “enough different community members.”[3] The key word here is different, for the campaign to change the street’s name to that of the civil-rights leader had been led by black pastors. So the city council made the change based on the advocacy of a segment of the population with a vested interest in the change, rather than reaching out to first ascertain whether the sort of unity that Martin King had preached could be achieved on the measure. In short, the council had put a part ahead of the whole.

For its part, the part, represented by Rev. Vernon Howard, president of the Southern Christian Leadership Conference of Greater Kansas City, claimed that racism was the main motive of the opposition to retaining the King name. “This is a white-led movement that is trying to dictate to black people in the black community who our heroes should be; who we honor; where we honor them and how we honor them,” Howard said. “This is the pathology of white privilege and that is the epitome of systemic structural racism,” he added.[4] In other words, the pathology of white privilege is the epitome of systemic structural racism. Had the reverend sought to provide a religious rather than a psychological account, he might have claimed that certain social structures are evil whereas others are sacred. A Unitarian minister in my hometown had once insisted to me that certain social structures (i.e., egalitarian systems) are sacred. I countered that a human claiming that a human artifact is divine constitutes self-idolatry.[5] He dismissed my counter-claim instantly, as if he presumed that he could not be wrong whereas I must be so. Had he also insisted that societal structures that contain inequality are pathological, I would have pointed to the over-reach of his religious basis onto psychology.

I submit that in dismissing the meaningfulness of The Paseo to people generally in Kansas City, Howard’s reductionism to racism is erroneous. Essentially, he was claiming that cases in which majority rule does not dovetail with his interpretation of black interests, the democratic principle itself is culpable as part of systemic structural racism and thus is pathological in nature. In other words, the particular interests of one segment of the whole must be consistent with the majority for the democratic principle of majority rule to be devoid of the stain of racism and thus valid.

Furthermore, in so closely relating “white privilege” to systemic racism, the reverend overlooked or dismissed outright the racism in the black community. On the morning following the vote, for example, I endured fifteen minutes of racist insults from a black woman on a local bus in Phoenix, Arizona. Her voice could be heard throughout the bus as she claimed that “whites are ugly when they age, whereas black people age good.” Furthermore, whites are red-necks whose “dominance will end someday.” As she declared herself to be a racist, I noticed that the driver, also a black women, was refusing to stop the woman. Such passive aggression can be considered tacit racism. That was not the only instance in which I had observed black racism on a Phoenix bus. Once a driver had decided not to intervene as a black woman shouted insults at a Caucasian man until the woman called the driver a racist for not having kicked the man off the bus! The reputation of the local bus drivers in the phoenix metro, including Tempe, was sordid in terms of their attitudes and bad in terms of their driving, and accountability at least regarding the latter was deliberately obstructed by First Trans, a sub-contractor of Valley Metro. The subcontractor was in denial concerning the role of its pathetic hiring of people with bad attitudes to drive the buses. Such a flawed system enabled black racism (as well as reckless driving, such as in going from 40 or 50 mph to zero in a turn lane). Put another way, systemic structural racism can be due to black privilege (and facilitated or enabled by a corrupt, incompetent organization).

The reverend’s partial account can be taken as confirmation of being a part within a whole not reflecting the whole or its interests. Holding majority rule subject to such a partial perspective is not in itself in the interests of a whole. In Kansas City, the municipal government followed a flawed process (of input) in changing the street to Martin Luther King Jr Blvd. Such a flaw is not racist even if the segment that benefitted from the flaw no longer benefits once the flaw has been corrected by the voters. In fact, for an electorate to correct its delegated government is laudable from a democratic standpoint, as the People, as the popular sovereign, is the basis of a republic. For that basis to somehow be held ransom by a part thereof undermines the foundation of democracy, whether direct or representative.

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[1] William Cummings, “Kansas City Voters Overwhelmingly Approve Mesure to Drop Martin Luther King Jr.’s Name from Street,” USA Today, November 6, 2019.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] See the last chapter of my book, God’s Gold, for an elaboration on self-idolatry.

The U.S. Supreme Court: Too Much Ideology in Jurisprudence?

Should the electorate in a republic be able to remove Supreme Court justices due to their past decisions on particular cases? Can this basis be distinguished from removing a justice for judicial incompetence? One thing is clear: the general public does not have the technical expertise to perform a “supervisor’s evaluation” on a judge. Obviously, anyone can see that someone who skips work on a regular basis is not fit for the job, but this is different than evaluating a job by the technical criteria of the profession. Distinguishing between a particular decision and general judicial approach, for example, is more difficult. Moreover, it can be difficult to balance the rights of popular sovereignty (i.e., rule by the people) against the rule of law without respect to majority opinion.

The justices of the U.S. Supreme Court in 2012.

To the extent that a justice’s interpretation of the law involves his or her political ideology given the discretion or latitude involved in jurisprudence, the electorate in a republic has a claim on who should serve as a justice. To be sure, constitutional amendment is another means by which the people can overcome a supreme court, though this route is cumbersome and limited to a particular case or area of law. The element of political ideology in a constitutional-law decision means that a clear line of separation does not exist between politics and constitutional jurisprudence. Accordingly, the following view can be criticized.

“I think it’s a mistake for a party, as a party, to state a position that a certain judge should be thrown out, because then you are introducing partisanship into a system that is supposed to be nonpartisan,” said Bob Martinez, a prominent Republican lawyer who was once the United States attorney for the Southern District of Florida. “And when you have elected officials, on the right or left, criticizing judges publicly it can become very dangerous and it can undermine the public’s faith in the judiciary.” It is also very dangerous to have a very few number of unelected citizens serving as justices making de facto final decisions involving political ideology. Moreover, the ideological differences frequently present on a bench means that partisanship is already present, even if it is subtly filtered through the prism of jurisprudence.

In the case of southeastern Florida, the institution of justice itself can be subject to severe repute—that is, whether it exists at all. Once when visiting Miami, I tried to enter a local bus at the bus-transfer-station at a regional train station. I say tried because just as I was stepping into the bus, a large black man of about 25 years old who was standing to the side just outside the bus body-slammed me against the opened bus-door to force me out of the doorway. Not all the black people had entered, and the man presumed the right to force me out with a slam. The bus driver saw the violence, and yet refused my request that he contact his company and the police. “That’s just the way it is here,” the black driver told me. "You should not have gotten on then." The sheer blatant nature of the violence and the driver’s reaction gave me the impression that anti-white racism is systemic in Miami and that the system of justice there is at best partial, or prejudiced. Days later, I mentioned the incident to a Miami Beach policeman. “We have cameras on every bus; it didn’t happen.” His attitude being obviously corrupted, I thanked him for his time and walked away. The decadence or corruption of a society is systemic in nature; it is best, therefore, simply to avoid such places even for a brief stay.

Given the corruption and anti-white racism in Miami, a political party may have good reason to target three justices sitting on Florida’s Supreme Court for presuming that the criminal justice system can afford to be sacrificed to legal technicalities. That the three justices had “judged” legal technicalities as sufficient to free a man who had tied up and lit someone on fire suggests that the plight of the justices can be tied indirectly (as enablers) to the systemic injustice in Miami-Dade. That is, Floridians looking unfavorably at the decadence in Miami "culture" may judge Florida’s justice system to be inadequate and thus in need of justices who view it as such. It can even be said that removing the justices was a duty of Floridians who oppose outright aggression in public and enabling by county employees.

The notion that political ideology, including whether the system of justice is sufficient for there to be the rule of law in a society, is somehow absent in a constitutional court’s decisions is perhaps one of the most invisible or unknown naiveties in modern Western civics. One does not have to go back to Gore v. Bush (2000) to detect the presence of an ideological agenda in constitutional court decisions. The Citizens United (2010) case, for example, also decided by the U.S. Supreme Court, involves the ideological view that money is speech and corporations are legal persons and thus having the right of free speech. These positions are not founded in jurisprudence, but rather in ideology concerning wealth and power.

Typically, a justice seeks to portray his or her ideological positions through the lenses of his method of interpreting the constitution, as if such a device rendered the moral values as judicial interpretation. For example, Justice Scalia calls his method “originalist,” “original intent,” or “textualist,” meaning that he applies the words in the Constitution as they were understood by the people who wrote, proposed, and ratified them. It so happens that this method is consistent, at least to Scalia, with his social conservatism. Capital punishment was allowed in 1787, so that practice could not have been viewed, at least by the majority of the conventions’ delegates, as cruel and unusual punishment.

The sheer ease with which Scalia claims he can make decisions on cases in which conservative social ideology is salient suggests that something more is going on than constitutional interpretation. Speaking at the American Enterprise Institute in 2012, for instance, he said, “The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.” At the very least, Scalia’s own statement does not privilege judicial interpretation; rather, he describes the possible cases in terms of social issues rather than constitutional doctrines. Put another way, if the cases involving such issues are so easy, then they could (and should) be put to the electorate as referendums. Scalia belies his own (and his colleagues’) relatively unique claim to technical expertise, and thus winds up making my point for me—more is going on in U.S. Supreme Court decisions than simply applying methods of constitutional interpretation to legal doctrines and the facts of particular cases. That “something more” can be excised and assigned to legislatures or the people.

As still another example, the U.S. Supreme Court once again weighted in on affirmative action in October 2012. The Wall Street Journal reported that the "80 minutes of intense argument revealed deep fissures among justices' views on the pursuit of diversity in higher education." The fissures just happen to go along with how liberal or conservative the justices were on social issues. In my view, whether the state governments have a compelling interest in diversity in higher education is not a judicial matter because diversity itself is an ideological value. Elected representatives, or the electorate itself, could decide the matter with more legitimacy than in relying on Justice Kennedy's view on affirmative action.

It is not impossible that a constitutional court itself could put to the electorate questions oriented to the ideological element. This would enable justices to concentrate instead on technical judicial matters, which constitute the “turf” on which the juridical expertise is based. In other words, in not being so greedy or “over-reaching,” the justices and the court itself would have more legitimacy. To those who say that putting a referendum to the people, say on whether capital punishment is cruel and unusual punishment, would introduce politics into the decision, I submit that politics are inherent in the decisions already, given the element of political or social ideology. In short, a direct relationship is possible between a supreme court and the people, bypassing the other branches of government. Just as the U.S. Government can bypass the state governments to have direct effect on the people, the U.S. Supreme Court could talk directly with the people via adding questions to the ballot. Alternatively, a court could direct the chief executive or legislature to decide or put to the people questions concerning ideology that bears on a decision. Not being elected, justices do not have legitimacy in determining such questions. Scalia’s statement reads like one that one might hear in a barber shop (or so I would imagine).

In Iowa after its Supreme Court’s decision on gay marriage, the republic’s electorate voted to remove three of the justices who had joined in the majority opinion. In effect, the majority of those citizens who voted were saying that the decision was not just one of judicial interpretation. To be sure, the court’s decision included the juridical matters of constitutional rights irrespective of majority rule, and constitutional method or interpretation more generally.  Nevertheless, the ideological question of whether marriage as an institution should be extended to couples of the same sex was also in the mix. Separating two elements in one decision and weighing the qualitatively different (though not disparate) strands is very difficult, to say the least.

A conflict of interest exists in majority rule weighing its own right against the rights of individuals or a minority faction, but it is also problematic to rely on nine unelected people to decide a society’s meaning of marriage unless there is also constitutional language on language itself (rather than more general clauses that might pertain). Interpretation without the ideological element presupposes more direct constitutional language than “due process” or “equal protection.” Accordingly, the court and the people, as well as their elected representatives, all have a role in what is regarded as “legal opinions” in constitutional law.

Sources:

Lizette Alvarez, “G.O.P. Aims to Remake Florida Supreme Court,” The New York Times, October 3, 2012. 

Mark Sherman, “Antonin Scalia: Death Penalty, Abortion, ‘Homosexual Sodomy’ Are Easy Cases,” The Huffington Post, October 5, 2012.

Jesse Braven, "Justices Clash on Affirmative Action," The Wall Street Journal, October 10, 2012.

Batting Better Than Goldman Sachs on Corporate Governance

Companies differ on how they handle personal and institutional conflicts of interest. This difference may reflect disagreement over whether a conflict of interest is inherently unethical, or whether one must be exploited for any conduct to be unethical. I take the former position: that to be in a conflict of interest is indeed inherently unethical. At the very least, being in a conflict of interest can trigger or spawn additional conflicts of interest. I point to Goldman Sachs’ response to an institutional stockholder’s corporate governance proposal as a case in point. That case can be contrasted with how the BATs board reacted in terms of corporate governance to bad public relations and a failed IPO.


The full essay is at Institutional Conflicts of Interest, available in print and as an ebook at Amazon.

Batting Better Than Goldman Sachs on Corporate Governance

Companies differ on how they handle personal and institutional conflicts of interest. This difference may reflect disagreement over whether a conflict of interest is inherently unethical, or whether one must be exploited for any conduct to be unethical. I take the former position: that to be in a conflict of interest is indeed inherently unethical. At the very least, being in a conflict of interest can trigger or spawn additional conflicts of interest. I point to Goldman Sachs’ response to an institutional stockholder’s corporate governance proposal as a case in point. That case can be contrasted with how the BATs board reacted in terms of corporate governance to bad public relations and a failed IPO.


The full essay is at Institutional Conflicts of Interest, available in print and as an ebook at Amazon.

Is States' Rights in the E.U. Racist?

Thousands of Romania’s Roma people (also known as Gypsies) headed for the wealthier Western E.U. states, setting off a clash within the European Union over just how open its “open borders” really were. Migration within the 27 states of the E.U. became a combustible issue during the economic downturn. The Union’s expansion that brought in the relatively poor states of Romania and Bulgaria in 2007 renewed concern that the poor, traveling far from home in search of work, would become a burden on the state governments of the wealthier states. The migration of the Roma also raised questions about the obligations of Romania and Bulgaria to fulfill promises their governments had made when they joined the Union. Romania, for instance, mapped out a strategy for helping the Roma, but financed little of it.

Nicolas Sarkozy of the E.U. state of France demanded in 2010 that the Romanian state government do more to aid the Roma at home. He vowed to keep dismantling immigrant camps and angrily rejected complaints from E.U. Commission officials that the French authorities were illegally singling out Roma for deportation.

Sarkozy, being oriented to state politics, tried to revive his support on the political right by deporting thousands of them, offering 300 euros, about $392, to those who go home voluntarily, and bulldozing their encampments.[1] The European Commission threatened legal action against the state of France over the deportation, calling it disgraceful and illegal. Perhaps it could also be called racist. If so, might Sarkozy’s action be comparable to a Southern state in the U.S. trying to kick black people out. That is, might Sarkozy’s action evince state rights perpetrating racism? Arizona’s immigration law requiring people being investigated by the police to show I.D. pales in comparison.  Might the association of state rights and racism have shifted from the U.S. to the E.U.? If so, it is doubtful that state rights would be marginalized in the E.U. as it has been in the U.S. on account of the association; the state governments in the E.U. enjoy more than enough loyalty by their citizens to defeat it.

More generally, this case illustrates the problems that the E.U. has had in enforcing compliance of the terms of the accession talks of new states. Prime facie, the case showcases the difficulty involved in integrating Europe, particularly as states such as Italy, Spain, France and Denmark have striven to keep out immigrants from Africa. The case of the Roma could be just the tip of the iceberg in how state rights may be fueled by racism to keep certain groups out. In other words, there could be a rather troubling pattern here, and Europeans may have been torn—looking to the E.U. to thwart the racism while supporting their state governments in keeping out “troubling” groups. It is part and parcel of the checks and balances in modern federalism that member governments can be called on their sordid policies even when they are popular within the particular states.

1.Suzanne Daley, “Roma, on Move, Test Europe’s ‘Open Borders’,” The New York Times, September 16, 2010.