Tuesday, February 11, 2020

Martin Luther King Jr., the Civil Rights Movement, and American Jews

By Peter Dreier



THE RECENT UPSURGE of antisemitism — including shooting deaths and attempted murders at synagogues, Jewish stores, and Jewish homes — has shocked many Americans. But given the current political climate, especially the rise of white-supremacist hate groups, on display in Charlottesville and emboldened by the rhetoric of President Donald Trump, we should not be surprised by the expression of overt hostility toward Jews by racist fanatics. On the other hand, on Martin Luther King Day this year, many Jews and blacks will celebrate the long alliance between the two groups in the crusade for a more inclusive America. This alliance has not been without its stresses, but the rise of a common foe — Trump and the alt-right — has helped rejuvenate the bonds between Jews and blacks.

Reverend King often expressed his appreciation for the close affinity between the black and Jewish communities. In 1958, speaking at a meeting of the American Jewish Congress, King said:

My people were brought to America in chains. Your people were driven here to escape the chains fashioned for them in Europe. Our unity is born of our common struggle for centuries, not only to rid ourselves of bondage, but to make oppression of any people by others an impossibility.

In 1964, King said: “It would be impossible to record the contribution that the Jewish people have made toward the Negro’s struggle for freedom — it has been so great.”

Much has been made of Jews’ longstanding support for the black freedom movement. But the black-Jewish alliance has been a two-way street. For example, during the 1930s and ’40s, W. E. B. Du Bois, Ralph Bunche, and other prominent black intellectuals spoke out against the rise of Nazism in Europe and the United States’s reluctance to admit Jewish refugees seeking to escape from fascism. During the Holocaust, when most elite white universities in the United States refused to provide jobs for Jewish professors fleeing persecution in Europe, historically black colleges offered refuge, with schools like Howard University, Atlanta University, and Tougaloo College, among others, employing at least 53 Jewish scholars. Most recently, black leaders in New York City, Pittsburgh, Minneapolis, Los Angeles, and other cities have demonstrated their solidarity with the Jewish community in response to the recent upsurge of hatred against Jews. In New Jersey, where race-based and antisemitic hate crimes have more than doubled since 2016, the ADL and the NAACP have joined forces to educate politicians and the public about prejudice to “allow our communities to lock arms and stand together against bigotry and those who seek to distract and divide us.”

Blacks and Jews have expressed their shared goals in different ways, on the front lines of the protest movement for civil rights and in the voting booth. In 2008, for example, 90 percent of black voters (but only 43 percent of white voters) supported Barack Obama’s campaign for president against Republican John McCain, while 78 percent of Jewish voters embraced Obama — a higher proportion than any other ethnic or religious group except for blacks. In 2016, when only 37 percent of white voters supported Hillary Clinton, 89 percent of black voters and 71 percent of Jewish voters embraced the Democratic candidate against Trump. In the 2018 midterm elections that swept in a Democratic House majority, Jews and Blacks led the “blue wave”: Jewish voters gave Democrats 79 percent of their votes, while 90 percent of black voters supported Democratic candidates (by contrast, only 44 percent of whites did so). No other white ethnic or religious group came close to the Jews’ level of support for Democratic office-seekers.

On the protest front, many Americans are familiar with the iconic photograph of Rabbi Abraham Joshua Heschel marching arm in arm with Reverend Martin Luther King Jr. during the 1965 march for voting rights. Heschel later wrote: “For many of us the march from Selma to Montgomery was about protest and prayer. Legs are not lips and walking is not kneeling. And yet our legs uttered songs. Even without words, our march was worship. I felt my legs were praying.” For his part, King called Heschel “my rabbi,” and the two often shared political and theological ideas.

In January 1963, Heschel delivered a speech (and King gave the closing speech) at a meeting National Conference on Religion and Race sponsored by the National Council of the Churches, the Synagogue Council of America, and the National Catholic Welfare Conference. Heschel began his remarks by linking biblical history to contemporary struggles:

At the first conference on religion and race, the main participants were Pharaoh and Moses. Moses’s words were, “Thus says the Lord, the God of Israel, let My people go that they may celebrate a feast to me.” While Pharaoh retorted: “Who is the Lord, that I should heed this voice and let Israel go? I do not know the Lord, and moreover I will not let Israel go.” The outcome of that summit meeting has not come to an end. Pharaoh is not ready to capitulate. The exodus began but is far from having been completed. In fact, it was easier for the children of Israel to cross the Red Sea than for a Negro to cross certain university campuses.

Rabbis were involved in the Freedom Rides, the lunch counter sit-ins, local efforts to challenge racial discrimination in housing and integrate schools, and the 1963 March on Washington, where Rabbi Uri Miller gave the opening prayer and Rabbi Joachim Prinz spoke prior to King’s “I Have a Dream” oration. In 1964, 16 rabbis joined the protest campaign in St. Augustine, Florida, a hotbed of segregationist resistance. All of them were arrested with King for engaging in a nonviolent demonstration at the segregated Monson Motor Lodge. At least 25 rabbis besides Heschel participated in the Selma march the next year. Heschel also led a delegation of 800 people to FBI headquarters in New York City to protest the agency’s failure to protect the civil rights demonstrators from racist thugs and the Alabama state police.

But it wasn’t just rabbis who were on the front lines of the Civil Rights movement. More than any other white religious or ethnic group, American Jews played a significant role in many different aspects of the freedom struggle.

In 1909, Jews were among the founders of the NAACP. Joel Spingarn, a Columbia University professor, was the group’s chairman from 1913 to 1919, its treasurer from 1919 to 1930, and its president again from 1930 until his death in 1939. Through a fund established in 1917, Julius Rosenwald, part-owner of Sears-Roebuck and a pioneer in the new field of progressive philanthropy, endowed 20 black colleges (including Howard, Dillard, and Tuskegee), funded more than 5,000 schools for African Americans in the rural South, and supported the Highlander Folk School, a Tennessee-based training center for civil rights and labor activists.

In 1929, Louis Isaac Jaffe, editorial writer for the Norfolk Virginia-Pilot, won the Pulitzer Prize for his denunciation of lynching and of Harry Byrd’s segregationist political machine. When few white lawyers were willing to challenge the Jim Crow system by defending nine young black men falsely accused of raping two white women in Alabama in 1931, Samuel Leibowitz, a Jewish attorney from New York, agreed to take the controversial “Scottsboro Boys” case. And predominantly Jewish unions — the International Ladies’ Garment Workers’ Union and the Amalgamated Clothing Workers union — took the lead in organizing black workers and supporting the Civil Rights movement.

In 1949, Rabbi Julian Feibelman of New Orleans invited Ralph Bunche, the black United Nations ambassador, to speak at his Temple Sinai in New Orleans. It was the first major integrated audience in the city’s history.

In Brown v. Board of Education, the landmark 1954 Supreme Court ruling that outlawed school segregation, the Supreme Court relied on research by the black psychologist Kenneth Clark, which showed how segregation placed a stamp of inferi­ority on black children. Clark’s study had been commissioned by the American Jewish Committee, and it appeared in the amicus curiae brief the AJC submitted to the court. In 1957, at the height of the anti-integration backlash across the South, Rabbi Ira Sanders of Little Rock bravely testified before the Arkansas State Senate against pending segregationist bills.

Jewish activists represented a disproportionate number of the whites who were involved in the struggle. They were active not only in the NAACP but also in the Southern Christian Leadership Conference, the Student Nonviolent Coordinating Committee, and the Leadership Conference on Civil and Human Rights. From his earliest days as the leader of the 1955 Montgomery bus boycott, King’s closest advisor was Stanley Levison, who helped him write speeches, raise funds, organize events, and strategize. Kivie Kaplan, a vice chairman of the Union of American Hebrew Congregations (now the Union for Reform Judaism), served as the NAACP’s president from 1966 to 1975.

Although Jews made up less than three percent of the nation’s population, they made up at least half of the young people who participated in the Mississippi Freedom Summer in 1964 — especially Jewish women like Heather Booth and Vivian Rothstein, as well as future Congressman Barney Frank, who volunteered to register voters under dangerous conditions. The two architects of that effort were Allard Lowenstein (a Jew) and Bob Moses (an African American). That summer, two young Jewish volunteers from New York, Michael Schwerner and Andrew Goodman, along with a young black Mississippian, James Chaney, were mur­dered in Neshoba County by Klansmen, their bodies dumped in a secret grave. Rabbi Arthur Lelyveld of Cleveland was severely beaten in Hattiesburg, Mississippi, where he’d traveled to participate in the voting rights effort. Dr. Edward Sachar, who volunteered his medical services to the freedom marchers, nearly lost his life when his automobile was forced off a Mississippi back road by local segregationists.

The Ku Klux Klan and other segregationist groups retaliated against the Jewish community for its support for the Civil Rights movement. Between November 1957 and October 1958, they bombed temples and other Jewish buildings in Atlanta, Nashville, Jack­sonville, and Miami. Undetonated dynamite was found under synagogues in Birmingham, Charlotte, and Gastonia, North Carolina. Some rabbis and other Jewish leaders received death threats. Not surprisingly, Jews who lived outside the South were more outspoken about civil rights than Southern Jews. Unlike most white Southerners at the time, few Southern Jews favored segregation. But many Jews in Southern towns feared both physical harm and boycotts if they expressed public support for the Civil Rights movement. Instead, some supported the movement quietly, through donations to the cause.

Outside the South, Jews like Morris Milgram of Philadelphia, Rabbi Robert Marx of Chicago, and William Becker of San Francisco were among the leaders in national and local campaigns for “open housing,” to integrate public schools, and to challenge racist police practices.

Besides African-American attorneys, most of the key lawyers in the Civil Rights movement were Jews, including Bella Abzug, Jack Greenberg, Arthur Kinoy, and William Kunstler. Two Jewish folk singers composed some of the most influential civil rights songs, including Bob Dylan’s “Blowin’ in the Wind,” “Oxford Town,” and “The Lonesome Death of Hattie Carroll,” and Phil Ochs’s “Ballad of Medgar Evers,” “Too Many Martyrs,” and “Here’s to The State of Mississippi.”

The Civil Rights Act of 1964 and the Voting Rights Act of 1965 were drafted in the conference room of the Religious Action Center of Reform Judaism, under the aegis of the Leadership Conference, which for decades was located in the RAC’s building. Many local and state desegregation regula­tions were drafted in the offices of Jewish organizations.

Of course, there have also been tensions in the black-Jewish alliance. From the 1940s through the 1970s, redlining by banks and block-busting by real estate agents exploited Jews’ fears and blacks’ desperation for housing. As Jews were pushed out of urban neighborhoods by the real estate industry’s profiteering, many blacks moved into these areas. Left behind in these black communities were Jewish merchants and landlords. This triggered both black antisemitism and Jewish racism, described by James Baldwin in a 1967 essay. “When we were growing up in Harlem, our demoralizing series of landlords were Jewish, and we hated them,” Baldwin wrote.

The butcher was a Jew and, yes, we certainly paid more for bad cuts of meat than other New York citizens, and we very often carried insults home, along with the meat. We bought our clothes from a Jew and, sometimes, our secondhand shoes, and the pawnbroker was a Jew — perhaps we hated him most of all.

Jews and blacks were also pitted against each other during the Ocean Hill–Brownsville controversy in 1968, when the Jewish-led teachers’ union and black community activists clashed over control of the hiring of teachers in New York City public schools, particularly those in black neighborhoods. Yet at the same time, as African Americans were becoming a major force in big city politics, Jews were their most active white campaign volunteers and voters. For example, Jews helped elect Tom Bradley as Los Angeles’s first black mayor in 1972 and Harold Washington as Chicago’s first black mayor in 1983.

The Jewish and black communities have continued to be allies in the struggle for a more inclusive society. In the summer of 2015, Jews were actively involved in the NAACP’s Journey for Justice, an historic 860-mile march from Selma, Alabama, to Washington, DC, carrying a Torah the entire way. They marched to advance a national agenda that protects the right of every American, especially black Americans, to a fair criminal justice system, uncorrupted and unfettered access to the ballot box, sustainable jobs with a living wage, and equitable public education. The Jewish community — through the work of both individual activists and organizations — has persisted in its support for these goals.

On Rosh Hashanah in 2017, Reverend William Barber II, perhaps the most influential civil rights leader since Reverend King, spoke at the IKAR synagogue in Los Angeles. “I have come here to hear the blowing of the shofar,” said the North Carolina minister who is leading a new Poor People’s campaign, “and to call us all to become shofars for a new year and a new reality until we are one nation under God for liberty and justice for all.”

At this time of growing white supremacy and bigotry — including attacks on immigrants, African Americans, Jews, and other groups — we need to heed Dr. King’s words: “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”

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Featured image of Martin Luther King Jr. and Abraham Joshua Heschel during 1965 Selma march is courtesy of Susannah Heschel.





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Fight of the Century
Writers Reflect on 100 Years of Landmark ACLU Cases
By Michael Chabon, Ayelet Waldman

Published 01.21.2020
Avid Reader Press / Simon & Schuster
336 Pages
 

ONE HUNDED YEARS AGO, on January 19, 1920, the American Civil Liberties Union began its mission of forcing the government to live up to the 132-year-old Constitution. The organization grew out of the National Civil Liberties Bureau (NCLB), which had been co-founded in 1917 by Crystal Eastman, an outspoken attorney, and Roger Nash Baldwin, a visionary social reformer. The purposes of the NCLB were to defend freedom of speech, primarily antiwar speech, and to support conscientious objectors who opposed the United States’s entry into World War I. The New York Times denigrated the NCLB as a “little group of malcontents,” which was simultaneously “troublesome” and an “unimportant and minute minority — noisy out of all proportion to their numbers.”
Despite campaigning for re-election in 1916 on the slogan, “He kept us out of war,” after his re-election, President Woodrow Wilson reversed course and, on April 2, 1917, asked Congress for a declaration of war. Now fully embracing his role as a wartime president, Wilson announced that the “authority to exercise censorship is absolutely necessary to the public safety.” The government was quick to act. By mid-July, the US Postal Service had banned 12 pamphlets published by the NCLB. Armed with the Espionage Act of 1917 and later the Sedition Act of 1918, the government intensified its punishment of protesters and dissenters. The courts afforded little or no protection. Indeed, in 1919 the US Supreme Court upheld the convictions of Socialist Party leader Charles Schenck and newspaperman Jacob Frohwerk for publishing antiwar literature and prominent Socialist Eugene Debs for speaking out against the war.
Beginning on January 2, 1920, in the second wave of the infamous Palmer Raids, government agents in 30 cities and towns eventually rounded up thousands of dissenters and prepared over 6,300 deportation cases. In this highly agitated atmosphere, it was dangerous to disagree with the patriotic majority. Yet on January 12 and 13, 1920, Baldwin and his courageous allies gathered at the Old Chelsea, 51 West 16th Street in New York City, to form the American Civil Liberties Union (ACLU). Its first official meeting was held on January 19. Baldwin served on the 14-member Executive Committee, along with Norman Thomas and A. J. Muste. Other prominent figures, such as Jane Addams, Helen Keller, Elizabeth Gurley Flynn, Arthur Garfield Hays, and later Felix Frankfurter, served on a larger National Committee.
Today, the ACLU has 1.5 million members with affiliates in all 50 states, supported by 300 full-time lawyers nationwide and another 1,700 to 2,000 volunteer lawyers, who together handle approximately 1,400 state and federal legal cases a year. No other private organization has appeared as often in the US Supreme Court. According to a comprehensive survey published by Steven Markoff, the ACLU has been involved, as counsel of record or amicus curiae (friend of the court), in an astounding 1,000 Supreme Court published decisions.
To mark the centennial of the ACLU, several books are being published. One is Fight of the Century: Writers Reflect on 100 Years of Landmark ACLU Cases, edited by Michael Chabon, the author of numerous books including The Amazing Adventures of Kavalier & Clay, and Ayelet Waldman, the author of a memoir and several novels including Love and Treasure. They have gathered 38 writers, and, together with their own contributions, offer 40 wide-ranging essays examining some of the most important legal battles the ACLU has fought over its tumultuous first 100 years. The book includes an engaging and informative foreword by David Cole, the national legal director of the ACLU and the author of several books, including most recently Engines of Liberty: How Citizen Movements Succeed.
Cole offers a good summary of the impressive array of momentous victories the ACLU has achieved, as discussed in these pages.
Over the course of the ACLU’s first century, the courts have recognized substantial safeguards for free speech and free press; protected religious minorities; declared segregation unconstitutional; guaranteed a woman’s right to decide when and whether to have children; recognized claims to equal treatment by women, gay men, and lesbians; directed states to provide indigent criminal defendants an attorney at state expense; regulated police searches and interrogations; and insisted on the rights to judicial review of immigrants facing deportation and even foreign “enemy combatants” held at Guantanamo in the war on terror.
Cole adds that in “thousands of cases brought or supported by the ACLU, the courts have extended the protections of privacy, dignity, autonomy, and equality to an ever-widening group of our fellow human beings.”
Readers will find it refreshing to read a collection of essays about court decisions written mostly by novelists. Far be it for me to complain about the way lawyers write, but it is certainly welcome to consider the impact and relevancy of important judicial decisions outside the strict boundaries of legal and constitutional interpretation and instead through the lens of lived experiences, full of struggle, emotion, fear, resilience, hope, and triumph. As the editors put it,
we have collected essays from some of our country’s finest writers — not just because writers are and have long been among the principal beneficiaries and guardians of the First Amendment but also because they traffic, by temperament and trade, in nuance and its elucidation, in ambiguity and shades of gray.
¤
Take for example, the very first essay, by Viet Thanh Nguyen, winner of the Pulitzer Prize in Fiction for his novel The Sympathizer. The case he discusses is Stromberg v. California, an early victory against government censorship. In 1929, Yetta Stromberg, a teacher and member of the Youth Communist League, worked at the Pioneer Summer Camp in California, attended by working-class children. Each day, Stromberg conducted a ceremony during which she raised a red flag while the kids pledged allegiance to “the worker’s red flag, and to the cause for which it stands, one aim throughout our lives, freedom for the working class.” She was convicted for violating a California law passed in 1919 which banned the public display of red flags. Represented by the ACLU, Stromberg took her case to the Supreme Court, which in 1931 ruled in her favor 7-2, finding the ban unconstitutionally vague under the 14th Amendment. Two years later, California repealed the law.
Nguyen chooses to reflect on the decision by writing about his own experience as a Vietnamese refugee. He was born in the Republic of Vietnam, otherwise known as South Vietnam, whose flag was a field of yellow with three red horizontal stripes. After the fall of Saigon in April 1975, the victorious Democratic Republic of Vietnam — the North Vietnamese — adopted a red flag with a yellow star in the center as the national flag. Nguyen’s family emigrated to San Jose, and throughout the Vietnamese refugee community he saw the yellow flag as symbolizing a displaced and exiled nation. He reports that in his community “no one dared to fly the red flag because the punishment from the community would have been immediate.”
The anticommunism of Vietnamese refugees easily aligned with the anticommunism that ran deep in the United States. On August 5, 2006, with bipartisan support, the California legislature passed a law declaring the yellow flag of South Vietnam as the Vietnamese Heritage and Freedom Flag of the Vietnamese community and to be displayed at official events in which a flag for Vietnam was called for. Thus, Nguyen writes, 75 years after Stromberg, a “red flag would once again be banned.”
In 2009, while Nguyen was teaching at the University of Southern California, a controversy broke out when an anticommunist activist stapled the yellow flag around the red flag among all the flags of the world’s countries which hung from the rafters of an international building. Nguyen and a colleague called a meeting of the Vietnamese-American community on campus. One side called for forgiveness and reconciliation. “Their sentiments were noble, but perhaps these students could afford to be noble: they had won,” Nguyen writes. The other side spoke of defeat, shame, pain, and filial piety.
Nguyen reports no outcome to the meeting. Instead he observes that in “the battle over free speech, the problem lies, as it always does, when both sides believe their speech is correct.” Echoing the “more speech, not less” approach fostered by Justice Louis Brandeis and consistently supported by the ACLU, Nguyen argues that in “a democracy of plural public and private spaces, there should be enough room for all forms of speech, which is what the Supreme Court ruled in Stromberg.” He adds that “[t]hose who loudly proclaim the inherent goodness of free speech, and the evils of suppressing it, would do well to listen to their own words before preventing the words of others.”
Like Viet Thanh Nguyen, Brit Bennett, a novelist and contributor to The New Yorker, The New York Times Magazine, and The Paris Review, is also worried about flags and coerced patriotism. In her essay, she links the landmark decision in West Virginia State Board of Education v. Barnette to the recent protests of former San Francisco 49ers quarterback Colin Kaepernick. In 2016, Kaepernick chose to sit during the pregame national anthem, later explaining that he was “not going to stand up to show pride in a flag for a country that oppresses black people and people of color.” A week later, Kaepernick and teammate Eric Reid knelt during the national anthem.
After Kaepernick’s protests, Bennett wore an enamel pin on her backpack that featured “the iconic image of Kaepernick, afro picked, kneeling.” She remembers that she was surprised at the suddenness of the anger of white people in response to her pin. But for her, the issue is not the flag or the anthem. “The problem is black disobedience. A kneeling black body becomes dangerous because a disobedient black body is dangerous.”
Which brings Bennett to the Barnette case. In that 1943 case, the Court, in a 6-3 ruling, held that public schools could not constitutionally force students to salute the American flag. The ACLU filed an amicus brief in support of the Barnettes, a family of Jehovah’s Witnesses whose faith forbade making oaths to secular national symbols. Only three years earlier, in an 8-1 decision, the Court had upheld Pennsylvania’s mandatory flag salute ceremony. Writing for the majority in that case, Justice Felix Frankfurter had asserted that “national unity is the basis of national security.” Ironically, barely 20 years before that, Frankfurter had helped found the ACLU.
In Barnette, Justice Robert Jackson, speaking for the majority, now wrote that
[s]truggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. […] Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.
Notably, two years later, Jackson would take a leave of absence from the Court to serve as US Chief Prosecutor at the Nuremberg Nazi War Crimes Tribunal.
Bennett ends her essay by recalling that every day in school she and two other black kids stood in her classroom and recited the Pledge of Allegiance, despite the fact that she knew as a black woman there is no liberty and justice for all. She just wanted to put her head down and get along. She was conflicted, however, because she was deeply moved when Whitney Houston sang the National Anthem. She also kept a folded American flag for her grandfather on the mantel. “You can live this way, finding beauty within violence,” she writes, “But eventually it bowls you over, knocking you down to your knees.”
In another essay, Yiyun Li, author of six books including her recent novel Where Reasons End, tells us that when she was growing up in a Soviet-style apartment block in Beijing in the 1970s, she enjoyed examining the twice daily delivery of letters and newspapers in a neighborhood mailbox with a dangling door. One day, an unusual letter arrived addressed to her father, a nuclear physicist. It was in a foreign language. Her father explained that it was a response from an English scientist to a letter of his that had been published in a foreign physics journal. But neighbors had also seen the letter and reported her father to the authorities. He was summoned by his work unit to explain himself. He got a warning and later he was denied an anticipated transfer and was assigned instead to the Institute of Marxist Dialectical Materialism, where he was demoted to a job closer to a clerk for the rest of his life.
For Li’s father, an “epistle from abroad spelled danger, but that did not happen only in communist China.” She cites the US Postal Service and Federal Employees Salary Act of 1962, which required recipients of letters from a foreign country containing “communist political propaganda” to advise the government that they wished to receive such mail. In 1963, the post office asked Dr. Corliss Lamont if he wanted to take delivery of a copy of the Peking Review, which had been published by the Chinese government in five languages since 1958. Lamont just happened to have been a director of the ACLU for 22 years. He did not respond to the post office’s notice. Instead, the ACLU sued the government on his behalf to enjoin the statute.
In 1965, Lamont won a unanimous ruling from the Supreme Court holding that the US postmaster had violated his First Amendment rights. Imposing an affirmative obligation on an addressee to ask for such mail “is almost certain to have a deterrent effect, especially as respects those who have sensitive positions” whose livelihood may depend on a security clearance. Any addressee “is likely to feel some inhibition in sending for literature which federal officials have condemned as ‘communist political propaganda.’” According to Justice William Brennan’s opinion, the “dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.”
But Li warns that as digital communications increasingly replace snail mail, the US Border Control is “using questionable authority to search the cell phones of passengers arriving in America.” She ominously asks whether it would be far-fetched to imagine that if “the political atmosphere continue[s] as it is under the current administration, that one day we would be required to unlock our cell phones to show that in our texts and emails, we have not expressed any thoughts of disloyalty[.]”
¤
Fight of the Century is filled with engrossing stories like these, giving some of the most important court decisions of the last 100 years a human dimension and added relevance and urgency. The writers achieve this by illuminating the personal stories behind the legal decisions and by connecting their own lives to the legal issues at stake.
Elizabeth Strout, winner of the Pulitzer Prize for her 2008 novel, Olive Kitteridge, remembers wearing a black armband to protest Alexander Haig’s appearance at her university in 1981. She applauds the courage of Mary Beth Tinker, who 16 years earlier, at the age of 13, wore a black armband in her school in Des Moines, Iowa, to protest the Vietnam War. Represented by the ACLU, Tinker later won an important Supreme Court decision protecting the First Amendment rights of students.
Novelist Dave Eggers tells the chilling story of how the ACLU came to Danny Escobedo’s defense when in 1960 he was accused of murder in Chicago but denied the right to counsel during his police interrogation. Eggers warns that “we still have widespread, even epidemic, problems with forced confessions.”
In writing about the landmark 1971 Pentagon Papers decision in which the ACLU filed an amicus brief, Salman Rushdie modestly notes that he too has had “some experience of countries in which the powers that be control the information media.” Speaking of President Trump’s relentless attacks on the press, Rushdie points out that “the first step toward authoritarianism is always the destruction of people’s belief that journalism is, broadly speaking, pursuing and telling the truth.” The second step is for the authoritarian leader to say: “Just believe in me, for I am the truth.”
And it wouldn’t be the ACLU without some disagreement in the ranks, as I have learned having served on the Board of Directors of the ACLU of Southern California for over 25 years. Scott Turow, a former federal prosecutor and author of 11 best-selling works of fiction as well as two nonfiction books on the law, takes great exception to the ACLU’s support for the Supreme Court decisions in Buckley v. Valeo and Citizens United v. FEC, which struck down restrictions on campaign expenditures on First Amendment grounds. For the record, David Cole comes to the ACLU’s defense pointing out that the ACLU’s position is not that campaign finance regulation is necessarily unconstitutional, “only that the government needs to point to a compelling justification and regulate narrowly, because limiting how much citizens can spend on speech of a particular content necessarily implicates the First Amendment.”
¤
It is certainly a daunting challenge to have to choose 40 from the 1,000 cases in which the ACLU has been involved in the last 100 years. Some readers may be disappointed that their favorites are left out. If it were up to me, I certainly would have devoted an entire essay to the pivotal court decisions which validated the ACLU’s position that no matter how much we despise the Nazi ideology and its practices, the American Nazi Party had a constitutional right to peacefully march in Skokie, Illinois, the home to many survivors of the Holocaust. The ACLU lost 30,000 members over that principled stand but in time the Skokie case has come to symbolize the very essence of the ACLU: it defends those whose constitutional rights have been violated regardless of their politics, religion, nationality, sexual orientation, or beliefs.
Another very important ACLU case that deserves attention is Gitlow v. New York (1925), which was in fact the very first case argued by the ACLU in the Supreme Court. It succeeded in broadening the protections of the First Amendment by applying them against state and local laws. Although the court upheld Gitlow’s conviction based on the facts in his particular case, the Incorporation Doctrine (applying the Bill of Rights to state and local laws) has proven essential in reining in unconstitutional state statutes and local ordinances.
In Engel v. Vitale (1962) (striking down official public school prayers), Abington School District v. Schempp (1963) (striking down school-sponsored Bible reading in public school), and County of Allegheny v. ACLU (1989) (prohibiting a government-sponsored nativity scene), the ACLU won important victories upholding the separation of church and state, which deserve to be in the pantheon of ACLU victories, especially since the ACLU provided direct representation in each of these cases — a far greater commitment of time and resources than filing an amicus brief.
One final candidate for consideration is Texas v. Johnson (1989), in which the Supreme Court held that a federal statute that made it a crime to desecrate the American flag violated the First Amendment. In his concurring opinion, Justice Anthony Kennedy eloquently expressed the quandary he — and indeed the ACLU — faces in cases of this kind:
The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. […] It is poignant but fundamental that the flag protects those who hold it in contempt.
¤
As the essays in Fight of the Century confirm, it is difficult to imagine an important legal, political, or social issue which our nation has faced over the last 100 years in which the ACLU has not played a pivotal role advocating in court on behalf of the Constitution. Since it was founded by that “little group of malcontents” a century ago, the ACLU has made a unique and indelible impact on the protection and expansion of constitutional rights for everyone in the United States.
Chabon contributes his own excellent essay on the court battle over the censorship of James Joyce’s masterpiece Ulysses in the United States, featuring the clever legal tactics employed by ACLU chief legal counsel Morris Ernst (who is misidentified in the introductory summary of the case as an “ACLU cofounder”). Chabon observes that the “history of the ACLU is a history of great struggle, bitter and glorious,” but “it is first of all — a history of great lawyers.” It is certainly true that hard-working and brilliant ACLU lawyers deserve enormous credit for what they have done, and continue to do, to tenaciously and courageously defend the Constitution, often facing public condemnation and the vastly greater resources of the government. But if I had to choose whom to honor first, I would honor the clients the ACLU has represented and supported in these cases — the women and men who risked their safety, jobs, life savings, reputations, and their very liberty to stand up for what they believed in. As we celebrate the centennial of the ACLU, let’s recognize Yetta Stromberg, Fred Edwards, Marie and Gathie Barnett, Fred Korematsu, Oliver Brown, Clarence Earl Gideon, Danny Escobedo, Corliss Lamont, Estelle Griswold, Ernesto Miranda, Mildred and Richard Loving, Mary Beth and John Tinker, Dick Gregory, Sidney Street, Robert Cohen, Norma McCorvey, Kenneth Donaldson, Stephen Wiesenfeld, Jesus Morales, John Lawrence and Tyron Garner, Diane Schroer, Edith Windsor, James Obergefell, and the tens of thousands of others who have challenged injustice and inequality.
In this spirit, Fight of the Century is dedicated to “the ACLU’s clients, who for over 100 years have refused to accept injustice and have chosen to fight for civil liberties and civil rights.” Yet as many of the contributors make clear, this struggle never ends. The list of brave clients will grow as the work of the ACLU continues in the face of ever new assaults on constitutional rights.
Speaking to members of the Massachusetts Anti-Slavery Society on January 28, 1852, abolitionist Wendell Phillips eloquently put it this way:
Eternal vigilance is the price of liberty; power is ever stealing from the many to the few. The manna of popular liberty must be gathered each day or it is rotten. The living sap of today outgrows the dead rind of yesterday. The hand entrusted with power becomes, either from human depravity or esprit de corps, the necessary enemy of the people. Only by continued oversight can the democrat in office be prevented from hardening into a despot; only by unintermitted agitation can a people be sufficiently awake to principle not to let liberty be smothered in material prosperity.
At a time in our country when the “hand entrusted with power” has become the “enemy of the people,” only by continued oversight can he “be prevented from hardening into a despot” (though for many he already has). Only by the sustained agitation of active and engaged people, with the support of the ACLU as well as a host of other social justice organizations, courageous state attorneys general, independent US Attorneys, and dedicated elected officials at all levels, can we “be sufficiently awake to principle not to let liberty be smothered in material prosperity.” Eternal resistance is the price of democracy.
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How Human Rights Were Defanged from Any Truly Emancipatory Potential

By Neve Gordon JANUARY 24, 2020

The Morals of the Market

Human Rights and the Rise of Neoliberalism 
Published 11.05.2019
Verso
278 Pages    




IN THE MID-1980s, Rony Brauman, who, at the time, was the president of the leading humanitarian organization Médecins sans Frontières, established a new human rights group called Liberté sans Frontières. For the inaugural colloquium, Brauman invited a number of speakers, among them Peter Bauer, a recently retired professor from the London School of Economics. Bauer was an odd choice given that he was a staunch defender of European colonialism; he had once responded to a student pamphlet that accused the British of taking “the rubber from Malaya, the tea from India, [and] raw materials from all over the world,” by arguing that actually “the British took the rubber to Malaya and the tea to India.” Far from the West causing Third World poverty, Bauer maintained that “contacts with the West” had been the primary agents of the colonies’ material progress.

Bauer hammered on this point at the colloquium, claiming that indigenous Amazonians were among the poorest people in the world precisely because they enjoyed the fewest “external contacts.” Taiwan, Hong Kong, Malaysia, and Singapore, he continued, showed proof of the economic benefits such contacts brought. “Whatever one thinks of colonialism it can’t be held responsible for Third World poverty,” he argued.

In her illuminating new book, The Morals of the Market: Human Rights and the Rise of Neoliberalism, Jessica Whyte recounts this story only to ask why Brauman, a leading humanitarian activist, invited Bauer — whom the Economist had described as being as hostile to foreign aid as Friedrich Hayek had been to socialism — to deliver a talk during the opening event for a new human rights organization. Her response is multifaceted, but, as she traces the parallel histories of neoliberalism and human rights, it becomes clear that the two projects are not necessarily antithetical, and actually have more in common than one might think.

Indeed, Liberté sans Frontières went on to play a central role in delegitimizing Third World accounts of economic exploitation. The organization incessantly challenged the accusations that Europe’s opulence was based on colonial plunder and that the world economic system made the rich richer and the poor poorer. And while it may have been more outspoken in its critique of Third Worldism than more prominent rights groups, it was in no way an outlier. Whyte reveals that in the eyes of organizations such as Amnesty International and Human Rights Watch, for instance, the major culprit for the woes of postcolonial states was neither Europe nor the international economic order but rather corrupt and ruthless Third World dictators who violated the rights of their populations as they undermined the development of a free economy. This approach coincides neatly with neoliberal thought.

Whyte contends that we cannot understand why human rights and neoliberalism flourished together if we view neoliberalism as an exclusively economic doctrine that favors privatization, deregulation, and unfettered free markets over public institutions and government. Although she strives to distinguish herself from thinkers like Wendy Brown and Michel Foucault, she ends up following their footsteps by emphasizing the moral dimension of neoliberal thought: the idea that a competitive market was not “simply a more efficient means of distributing resources; it was the basic institution of a moral and ‘civilised’ society, and a necessary support for individual rights.”

She exposes how neoliberal ideas informed the intense struggle over the meaning of “human rights,” and chronicles how Western rights groups and neoliberals ultimately adopted a similar interpretation, one that emphasizes individual freedoms at the expense of collective and economic rights. This interpretation was, moreover, in direct opposition to many newly independent postcolonial leaders.

Whyte describes, for instance, how just prior to the adoption of the two 1966 human rights covenants — the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights — Kwame Nkrumah, the first president of independent Ghana, coined the term “neo-colonialism” to refer to a series of mechanisms that perpetuate colonial patterns of exploitation in the wake of formal independence. Nkrumah “argued that the achievement of formal sovereignty had neither freed former colonies from the unequal economic relations of the colonial period nor given them political control over their own territories,” thus preventing these states from securing the basic rights of their inhabitants. A “state in the grip of neo-colonialism,” he wrote, “is not master of its own destiny.”

Nkrumah thought that only when postcolonial states fully controlled their natural resources would they be able to invest in the population’s well-being. In the meantime, neo-colonial economic arrangements were denying African states the ability to provide adequate education and health care as well as other economic and social rights to their populations, thus revealing how these economic arrangements were welded in a Gordian knot with international politics. Any attempt to understand one without the other provided a distorted picture of reality.

Such combining of the economy with the political, however, was anathema to neoliberal thought. In 1927, exactly three decades before Ghana’s new leader led his country to independence, Hayek’s mentor, economist Ludwig von Mises, had already argued that colonialism took advantage of the superior weaponry of the “white race” to subjugate, rob, and enslave weaker peoples. But Mises was careful to distinguish colonial oppression from the economic goals of a competitive market, noting that Britain was different since its form of colonialism pursued “grand commercial objectives.” Similarly, the British economist Lionel Robbins separated the benign economic sphere from the merciless political one, writing in the 1930s that “[n]ot capitalism, but the anarchic political organization of the world is the root disease of our civilization.”

These thinkers set the tone for many neoliberal economists who have since defined colonial imperialism as a phenomenon of politics, not capitalism, while casting the market as a realm of mutually beneficial, free, peaceful exchange. In this view, it is the political realm that engenders violence and coercion, not the economic sphere. Yet, during the period of decolonization neoliberals also understood that they needed to introduce moral justifications for the ongoing economic exploitation of former colonies. Realizing that human rights were rapidly becoming the new lingua franca of global moral speak, Whyte suggests that they, like Nkrumah, began mobilizing rights talk — except that neoliberals deployed it as a weapon against states who tried to gain control over their country’s natural resources as well as a shield from any kind of criticism directed toward their vision of a capitalist market.

Their relation to the state was complicated, but was not really different from the one espoused by their liberal predecessors. Neoliberal thinkers understood that states are necessary to enforce labor discipline and to protect corporate interests, embracing states that served as handmaidens to competitive markets. If, however, a state undermined the separation of political sovereignty from economic ownership or became attuned to the demands of its people to nationalize resources, that state would inevitably be perceived as a foe. The solution was to set limits on the state’s exercise of sovereignty. As Friedrich Hayek, the author of The Road to Serfdom, put it, the “taming of the savage” must be followed by the “taming of the state.”

Shaping the state so that it advances a neoliberal economic model can, however, be a brutal undertaking, and the consequences are likely to generate considerable suffering for large segments of the population. Freed from any commitment to popular sovereignty and economic self-determination, the language of liberal human rights offered neoliberals a means to legitimize transformative interventions that would subject states to the dictates of international markets. This is why a conception of human rights, one very different from the notion of rights advanced by Nkrumah, was needed.

In Whyte’s historical analysis the free-market ideologues accordingly adopted a lexicon of rights that buttressed the neoliberal state, while simultaneously pathologizing mass politics as a threat to individual freedoms. In a nutshell, neoliberal economists realized that human rights could play a vital role in the dissemination of their ideology, providing, in Whyte’s words, “competitive markets with a moral and legal foundation.”

At about the same time that neoliberalism became hegemonic, human rights organizations began sprouting in the international arena. By the early 1970s, Amnesty International and the International Commission of Jurists were already active in numerous countries around the globe, and Americas Watch (a precursor to Human Rights Watch) had just been established. According to Samuel Moyn, a professor of history at Yale and author of the best seller The Last Utopia, it was precisely during this period that human rights first achieved global prominence. That Western human rights organizations gained influence during the period of neoliberal entrenchment is, Whyte argues, not coincidental.

Although Whyte emphasizes the writings of leading neoliberal thinkers, a slightly more nuanced approach would have framed these developments as the reflection of a conjunctural moment, whereby the rise of neoliberalism and of human rights NGOs was itself part of numerous economic, social, and cultural shifts. Chile serves as a good example of this conjuncture, revealing how a combination of historical circumstances led neoliberal economics and a certain conception of human rights to merge.

Notwithstanding the bloody takeover, the extrajudicial executions, the disappearances and wholesale torture of thousands of dissidents, Hayek’s response to Pinochet’s 1973 coup was that “the world shall come to regard the recovery of Chile as one of the great economic miracles of our time.” Milton Friedman, a key figure in the Chicago School, later echoed this assessment, describing Chile as an economic and political “miracle.” The two Nobel Prize winners were not detached observers, having provided advice to Pinochet on how to privatize state services such as education, health care, and social security, and it was Friedman’s former students, the “Chicago Boys,” who occupied central positions within the authoritarian regime, ensuring that these ideas became policy.

What is arguably even more surprising is the reaction of human rights organizations to the bloody coup in Chile. Whyte acknowledges that Naomi Klein covered much of this ground in The Shock Doctrine, where she details how Amnesty International obscured the relationship between neoliberal “shock therapy” and political violence. Characterizing the Southern Cone as a “laboratory” for both neoliberalism and grassroots human rights activism, Klein argued that, in its commitment to impartiality, Amnesty occluded the reasons for the torture and killing, and thereby “helped the Chicago School ideology to escape from its first bloody laboratory virtually unscathed.” While Whyte concurs with Klein’s assessment, she has a slightly different point to make.

To do so, she shows how Samuel Moyn contested Klein’s claim that the human rights movement was complicit in the rise of neoliberalism; he argued that the “chronological coincidence of human rights and neoliberalism” is “unsubstantiated” and that the so-called “Chilean miracle” is just as much due to the country’s “left’s own failures.” Moyn’s comment, Whyte cogently observes, “raises the question of why, in the period of neoliberal ascendancy, international human rights organisations flourished, largely escaping the repression that was pursued so furiously against leftists, trade unionists, rural organizers and indigenous people in countries such as Chile.”

She points out that the CIA-trained National Intelligence Directorate had instructions to carry out the “total extermination of Marxism,” but in an effort to present Chile as a modern civilized nation, the junta did not disavow the language of human rights, and at the height of the repression allowed overseas human rights organizations such as Amnesty International and the International Commission of Jurists to enter the country, giving them extensive freedom of movement.

Whyte explains that in focusing their attention on state violence while upholding the market as a realm of freedom and voluntary cooperation, human rights NGOs strengthened the great neoliberal dichotomy between coercive politics and free and peaceful markets. Allende’s government had challenged the myth of the market as a realm of voluntary, non-coercive, and mutually beneficial relations, and the Chilean leader paid for it with his life. By contrast, the junta with the Chicago Boys’ aid sought to uphold this myth, while using the state both to enhance a neoliberal economic order and to decimate collective political resistance. Whyte acknowledges that in challenging the junta’s torturous means, human rights NGOs arguably helped restrain the worst of its violence, but they did so at the cost of abandoning the economy as a site of political contestation.

Whyte’s claim is not simply that the human rights NGOs dealt with political violence in isolation from the country’s economic transformations, as Klein had argued. Rather, she shows that the gap between Amnesty’s version of human rights and the version espoused by postcolonial leaders, like Nkrumah, was wide. Indeed, Amnesty International invoked human rights in a way that had little in common with Nkrumah’s program of economic self-determination, and the organization was even hostile to the violent anti-colonial struggles promoted by UN diplomats from postcolonial societies during the same period. The story of human rights and neoliberalism in Chile is not, as Whyte convincingly shows, simply a story of the massive human rights violations carried out in order to allow for market reforms, or of the new human rights NGOs that contested the junta’s violence. It is also the story of the institutionalization of a conservative and market-driven vision of neoliberal human rights, one that highlights individual rights while preserving the inequalities of capitalism by protecting the market from the intrusions of “the masses.”

Expanding Whyte’s analysis to the present moment (the book focuses on the years between 1947 and 1987) while thinking of the relation between neoliberalism and human rights as part of a historical conjuncture, it becomes manifest that many if not most human rights NGOs operating today have been shaped by this legacy. One of its expressions is that rights groups rarely represent “the masses” in any formal or informal capacity. Consider Human Rights Watch, whose longstanding executive director Kenneth Roth oversees an annual budget of over $75 million and a staff of roughly 400 people. In four years’ time, Roth will outstrip Robert Mugabe’s 30-year tenure in office; while Roth has dedicated most of his adult life struggling against social wrongs, he has never had to compete in elections to secure his post. Indeed, due to the corporate structure of his organization the only constituency to which he is accountable are Human Rights Watch’s board members and donors — those who benefit from neoliberal economic arrangements — rather than the people whose rights the NGO defends or, needless to say, the “masses.” Moreover, Human Rights Watch is not exceptional within the rights-world, and even though rights organizations across the globe say they are interested in what the “people want,” sovereignty of the people in any meaningful sense, wherein the people can control the decisions that affect their lives most, is not really on the agenda.

Undoubtedly, Human Rights Watch has shed light on some of the most horrendous state crimes carried out across the globe over the past several decades. Exposing egregious violations is not an easy task and is a particularly important endeavor in our post-truth era. However, truth-telling, in and of itself, is not a political strategy. Even if exposing violations is conceived of as a component of a broader political mobilization, the truths that NGOs like Human Rights Watch have been revealing are blinkered. Given that they interpret human rights in an extremely narrow way, one that aligns quite neatly with neoliberal thought, their strategy therefore fails to provide tools for those invested in introducing profound and truly transformative social change.

From the get-go, most Western human rights NGOs had been attuned to Cold War politics and refrained from advocating for economic and social rights for decades, inventing numerous reasons to justify this stance: from the claim that the right to education and health care were not basic human rights like freedom of speech and freedom from torture, to the assertion that economic and social rights lacked a precise definition, thus rendering them difficult to campaign for. It took close to a decade after the fall of the Berlin Wall and the ongoing campaigning of Third World activists for the leading human rights organizations to acknowledge that economic and social rights, such as the right to health care, education, and social security, were indeed human rights, rights that they should dedicate at least some of its resources to fight for. But even today, almost 20 years after their integration within Human Rights Watch’s agenda, the resources allocated to the protection of these rights is relatively small, and the way that the organization strives to secure them is deeply skewed by the neoliberal view that politics and markets are separate realms and that human rights work should avoid interference with the capitalist structure of competitive markets. Wittingly or not, organizations like Human Rights Watch have not only bolstered the neoliberal imagination, but have produced a specific arsenal of human rights that shapes social struggles in a way that weakens those who aim to advance a more egalitarian political horizon.

Several years ago, Roth tried to justify Human Rights Watch’s approach, claiming that the issues it deals with are determined by its “methodology,” and that the “essence of that methodology […] is not the ability to mobilize people in the streets, to engage in litigation, to press for broad national plans, or to provide technical assistance. Rather, the core of our methodology is our ability to investigate, expose, and shame.” The hallmark of human rights work, in his view, is uncovering discrimination, while the unequal arrangement of the local and international economy leading to discrimination are beyond the organization’s purview. Not unlike the neoliberal thinkers discussed in Whyte’s book, Human Rights Watch limits its activism to formal equality, adopting a form of inquiry that ignores and ultimately disavows the structural context, which effectively undercuts forms of collective struggle.

Returning to Rony Brauman and the creation of Liberté sans Frontières, toward the end of the book Whyte recounts how in a 2015 interview he understood things differently than he had in the mid-1980s. “I see myself and the small group that I brought together as a kind of symptom of the rise of neoliberalism […] We had the conviction that we were a kind of intellectual vanguard, but no,” he laughed, “we were just following the rising tendency.”

Whyte suggests that this assessment is, if anything, too modest: rather than being a symptom, the humanitarians who founded Liberté sans Frontières explicitly mobilized the language of human rights in order to contest the vision of substantive equality that defined the Third Worldist project. Brauman and his organization benefited from the neo-colonial economic arrangements and, she notes,

were not powerless companions of the rising neoliberals, but active, enthusiastic and influential fellow travellers. Their distinctive contribution was to pioneer a distinctly neoliberal human rights discourse, for which a competitive market order accompanied by a liberal institutional structure was truly the last utopia.

The destructive legacy that Whyte so eloquently describes suggests that the convergence between neoliberals and rights practitioners has defanged human rights from any truly emancipatory potential. Formal rights without the redistribution of wealth and the democratization of economic power, as we have learned not only from the ongoing struggles of postcolonial states but also from the growing inequality in the Global North, simply do not lead to justice. So if the objectives of a utopian imagination include equitable distribution of resources and actual sovereignty of the people, we urgently need a new vocabulary of resistance and novel methods of struggle.

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Neve Gordon is a professor of human rights and international humanitarian law at Queen Mary University of London. He is the author of Israel’s Occupation(University of California Press, 2008), co-author of The Human Right to Dominate (Oxford University Press, 2015) and of Human Shields: A History of People in the Line of Fire (University of California Press, forthcoming August 2020). His Twitter account is @nevegordon.
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