COMMON LAW, UNCOMMON HYPOCRISY
Thursday, April 23, 2015
By Larry Delano Coleman, Esq.
At this writing, Loretta Lynch, the U.S. Attorney for the Eastern District of New York, twice previously confirmed by the United States Senate, remains unconfirmed as the nation’s next Attorney General, her nomination sitting in Senatorial purgatory. There, this extraordinary public servant’s nomination has dallied for a longer time than those of all of her predecessors’ combined, over five months. What’s up?
More than partisan politics is implicated here, apparently. President Barack Obama, a two-term Democrat, and former Illinois Senator, whose nominee Loretta Lynch is, has had an acrimonious relationship with Congressional Republicans throughout his tenure, to be sure. Still, more must be at issue here, one would suspect, given this inordinate length of time, with no Senate vote or Senate opposition. There must be more at issue here than: “Shall this black woman succeed Eric Holder, Jr., our first black Attorney General, who was formerly U.S. Attorney for Washington, D.C.?
Perhaps, a power-tipping point has been reached, or at least sensed, with Loretta Lynch, in American history. What else can explain this dour dilatoriness, this lack of political will? Given that the weekly—if not daily—shootings and killings of unarmed black men and boys by municipal police has ratcheted to the forefront of national—indeed global—consciousness, thanks to social media, one really wonders? This tragic spike has spurred mainstream media to step-up its coverage, albeit reluctantly, considering intrinsic, media cross-ownership patterns prevalent in American capital.
Power is at play, as power is in play, here. Not just politics or race. Unjust power!
Both politics and race have long worn the garments, the vestments, the shrouds and hoods adorning American power, shielding it from view; indeed, expediting its rule. But, power in America, is rooted in private capital, and is its Machiavellian use and abuse. Power is as American as cherry pie, to paraphrase H. Rap Brown, of SNCC.
Power, raw Machiavellian power, induced the ruling colonists to declare their “independence” from Great Britain in 1776, following the James Somerset decision in 1772, in England. That seminal decision outlawed African slavery on British soil, though not in its then-colonies. It may be the greatest, most fateful, English (or American) common law decision ever handed down! African chattel slavery was the basis of American agricultural and mercantile power, both in the North and South. Fearing this critical loss of capital, which the slaves’ free labor principally comprised, the callous colonists waged a fierce war against their British “oppressors” for their pretensive “independence” from taxation and tariffs and arbitrary laws—all ruses and excuses—slavery being their prize. That these patriots of freedom were themselves enslavers, was patent hypocrisy only blithely acknowledged by these insidious men.
This fact, that contradiction, seemed to trouble Thomas Jefferson in the first draft of his Declaration of Independence, when African colonial slavery is imputed to King George of England. His “mysterious obligation” to conceal “politically sensitive information behind codes and ciphers” hardly seems becoming of our third President, who was also member of the nation’s leading organization of learned men, the American Philosophical Society. Even so, many such myths and mysteries appear in Jefferson’s 1785 classic, NOTES ON THE STATE OF VIRGINIA, “Query XIV, ‘The Administration of Justice and Description of the Laws’".”
Slavery was the prize to be preserved at all costs, not one to be left to “cross and pile,” or random chance, to quote Jefferson, because it was spectacularly profitable. Much lip-service and grade-school homage has been given to fellow-Virginian’s, Patrick Henry’s excited utterance, “give me liberty or give me death.” However, its true applied meaning was more probably: “give me slavery or give me death!’
Jefferson’s anti-slavery language that was politically, and hypocritically, omitted from the original Declaration of Independence reads as follows:
“he has waged cruel war against human nature itself, violating it's most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. this piratical warfare, the opprobrium of infidel powers, is the warfare of the CHRISTIAN king of Great Britain. determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, & murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.”
The Civil War, 1861-1865, proved that the root of American will, rule, and power was economic slavery. All else was surfeit, window-dressing. Of course, the slaves themselves—all African descended—had something to say, indeed, had much to say, about American power’s dispensation, since they represented its most powerful base.
When the base moves, all above it must move. Slavery’s base moved, variously, creatively, continuously. It moved by “manumission.” That is where freedom was recompensed to slaves, for their free services rendered to some ethical masters, either pursuant to state law or private agreement or pangs of conscience, before manumission was outlawed by some states. The base moved by buying its freedom, becoming thousands of “free blacks;” by armed revolt (either plotted or carried out); or shipboard mutinies (“The Amistad” and “The Creole”) or—the big one—by running away by the tens of thousands to the North, or elsewhere, and to Canada.
After the Civil War battered loose American ‘capital,’ a brief period of paradigmatic economic readjustment followed. Known as “Reconstruction,” this saga included the assassination of President Abraham Lincoln. Soon, a modified economic paradigm reconstituted itself in, and by the means of, “Hayes-Tilden Compromise of 1877.”
Therein, yet-unnamed deal-makers conceded to the South its own ways, pursuant to its vaunted “heritage,” respecting handling of blacks. As part of the deal, cabalists accorded to the North, the Presidency, in the person of Rutherford B. Hayes, an Ohio Republican. Federal troops remaining in the South were also removed. Soon the “Solid South” was properly “reconstructed” as black progress entered its lowest point, after slavery, its “nadir.” Nadir is a term popularized by historian Rayford Logan, of Howard University, to describe demonic mayhem, lawlessness, cheating, stealing and lynching of blacks, by whites, with the cooperation or open acquiescence of white supremacists in and out of court, in law enforcement circles, federal or state!
The, as-yet-anonymous, big-money, deal-makers behind American economic will, rule, and power then made a tacit rapprochement, brother-to-brother, North to South. They secretly sealed a grand Caucasian concord. They settled a very narrow Presidential election commission battle. Congress did not resolve it due to fear of another threatened civil war being actively discussed. The fulcrum was black rights.
That commission comprised a total 15 persons, all-white men: five from the House of Representatives, five from the U.S. Senate, and, interestingly, five from the U. S. Supreme Court. The Judiciary thereby abandoned its formal, traditional, role as final arbiter of Constitutional disputes, and became complicit in Constitutional perfidy.
As explicated in the 1876 United States v Cruikshank decision crowning “states’ rights” as king, the U.S. Supreme Court’s Reconstruction-era jurists, had permitted the wanton massacre of 200, unarmed black men—and a few whites-- in Colfax, Louisiana, to go unpunished! The Court did so, when it reversed the federal criminal convictions of well-armed white assailants, many of them ex-Confederate soldiers in law enforcement. These, then-Republican-party- affiliated, blacks had rallied to assume their seats in the Louisiana legislature, following a hotly contested election for Governor, which they, then-Republicans, had fairly won, and which a federal judge had affirmed and confirmed. The desperate and defeated Democrats refused to accept defeat, and came heavily armed to the Colfax Parish Courthouse. There they killed the poorly-armed, politically-assertive blacks, after their surrender!
In its ruling the Supreme Court held that the Bill of Rights was applicable only to the federal government and not to state governments. It also held that American governance consisted of two governments, one federal—having only limited delegated powers—and state governments, having all other powers. Accordingly, the First Amendment’s right of assembly was a states’ right for the states to protect, not a federal one, which could be prosecuted in federal court. Similarly, the Second Amendment, it held, did not confer the right to bear arms, which pre-existed the Constitution; rather, it was a limitation on the power of the national government to interfere with that “right.” The Second Amendment, it said: “does not restrict private citizens from denying other citizens the right to keep and bear arms, or any other right in the Bill of Rights.” The Court also ruled that the Due Process and Equal Protection Clauses applied only to state action, and not to actions of individuals: "The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another."
The aftermath of Cruikshank is well-stated, in the Wikipedia article above, to wit:
“African Americans in the South were left to the mercy of increasingly hostile state governments dominated by white Democratic legislatures; neither the legislatures, law enforcement or the courts worked to protect freedmen. As Democrats regained power in the late 1870s, they struggled to suppress black voting through intimidation and fraud at the polls. Paramilitary groups such as the Red Shirts acted on behalf of the Democrats to suppress black voting. From 1890 to 1908, 10 of the 11 former Confederate states passed disfranchising constitutions or amendments, with provisions for poll taxes, residency requirements, literacy tests, and grandfather clauses that effectively disfranchised most black voters and many poor white people. The disfranchisement also meant that black people could not serve on juries or hold any political office, which were restricted to voters; those who could not vote were excluded from the political system.
“The Cruikshank ruling also allowed groups such as the Ku Klux Klan to flourish and continue to use paramilitary force to suppress black voting. As white Democrats dominated the Southern legislatures, they turned a blind eye on the violence. They refused to allow African Americans any right to bear arms.”
Of further note, the five- judge majority in Cruikshank were Republican appointees, 3 by Lincoln and 2 by Grant, as noted by Wikipedia, cited above. Double woes!
Loretta Lynch might forestall further GOP voting suppression attempts. That possibility is sufficiently plausible to give partisan pause to Republican Senators.
Cruikshank contained multiple hypocrisies. It was written by Republican judges to exonerate white Democrats, who had murdered black Republicans, who had successfully enforced presumed federal rights in a federal court. Instead, quite horribly, all criminal indictments and convictions were dismissed as defective by the Supreme Court. Five of that Court’s members later sat upon the Presidential commission election of 1877, which was facially deliberating a political and economic compromise to the controversial Hayes-Tilden election of 1876!
Be it hypocrisy or conflict, it is the U.S. Supreme Court’s conduct is now part of American “Reconstruction” history, as surely as Obama, Holder, and now Lynch!
No recourse was to be found for black people in those terrible days: the Old South was “reconstructed,” and with it, its evil, diabolical ways: lynching! Lacking now commercial value or marketability, and demonized as inferior, demagogic politicians exploited “lost cause” white supremacists romanticism to start a black stampede from the South. By carrying out all forms of mob lynching: hangings, burnings at the stake, drownings, bushwhacking, etc., many blacks were forced to flee for their lives!
Worse still, although slavery had ended—Hallelujah!--their former, highfalutin, Republican friends had fled back to “whiteness,” leaving them to take the brunt of unrestrained Rebel retribution, without the money, jobs, land, seed, tools, rights, political status, privileges, or immunities, which were their just due as spoils of war.
Cruikshank’s legacy still lingers, residually. Arguably, it is encoded in Loretta Lynch’s too-long-stalled nomination, as it is in Barack Obama’s presidency. The unpunished police-killings of unarmed black men are being tacitly superintended by this ghoulish case law. Its present day progeny is identified in the Department of Justice Ferguson, Missouri investigation and report.
One very big, comparable case mentioned is that of Graham v. Conner. That case takes away the objective, ‘reasonable man’ standard, so much ballyhooed in American common law and maliciously substitutes, “a reasonable officer ‘on the scene’ perspective” for assaying the propriety of using excessive or deadly force in police cases, most of whose victims are overwhelmingly black men. Such ‘on the scene,’ exculpatory, and heavily pro- police-biased standard must be used in jury instructions and in all pretrial motions that are filed to dismiss criminal charges.
The Department of Justice Report states:
“The use of excessive force by a law enforcement officer violates the Fourth Amendment. Graham v. Conner, 490 U.S. 386, 394 (1989); Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1207-09 (8th Cir. 2013). The constitutionality of an officer’s use of force depends on whether the officer’s conduct was “‘objectively reasonable’ in light of the facts and circumstances,” which must be assessed “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. Relevant considerations include “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.; Johnson v. Caroll, 658 F.3d 819, 826 (8th Cir. 2011).” P.28-29
It also states:
"the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments–in circumstances that are tense, uncertain, and rapidly evolving–about the amount of force that is necessary in a particular situation."
So, too, must an Attorney General, make similar decisions in deciding prosecutions of police, and municipalities facing citizen unrest in city after city, North and South. These factors figure prominently in Loretta Lynch’s extremely prolonged, Attorney General, confirmation process in this era of viral, video renditions of surging police brutality, notwithstanding, or because of, a black man’s Presidency, Barack Obama’s.
#30
https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjdsbJQe0_8jyZh0oIUxw6L2Uto5j8qyK9FSbGp2CrSfNT0Uj4wFlEBXSFYWhBRiv4E1W96DzV348z40njk3Iz071WAD2ct3w9z3Gy9V5C4Wh7Sis4M_qdb250aC4dZguXtCkUhnNxH_MQ/s1600/gaspar-yanga1.jpg
Black historical roots in the Vera Cruz region dating back to 16-17th century's Yanga, escaped slave, maroon, and freedom fighter, helped to inspire the French defeat giving rise to the Cinco de Mayo celebration that is celebrated on May 5! Viva Mexico!
http://www.commdiginews.com/history-and-holidays/the-international-scope-of-cinco-de-mayo-16735/
http://www.blackhistoryheroes.com/2011/05/gaspar-yanga-1570-african-slave-revolt.html?m=1
http://www.commdiginews.com/history-and-holidays/the-international-scope-of-cinco-de-mayo-16735/
