Has the U.S. killed a future Mandela?

I addressed this question in a Letter to the Editor published by The Washington Post online on December 11, 2013. Here is the letter, with the Post’s headline and links that the Post nicely provided for more information. (A slightly different version of this letter, revised by the Post and approved by me, was published in the print edition of December 12^th, Page A18.)

Letter to the Editor [The Washington Post online, Dec. 11, 2013]

Mandela ‘terrorist’ label calls into question U.S. drone policy

Beginning in 1988, the U.S. officially considered Nelson Mandela’s political party, the African National Congress, to be a terrorist organization. Mr. Mandela himself was placed on the U.S. terrorist watch list until 2008.

In his speech at Northwestern University, on March 5, 2012, Attorney General Eric H. Holder Jr. defended the killing of terrorists, designated as such by the executive branch, as legal and as requiring no judicial review. Mr. Holder was responding in particular to the prior Sept. 30 drone killings of U.S. citizen Anwar al-Awlaki and, two weeks later, his 16-year-old son. Prior to and since then, numerous such “terrorists” have been killed.

If the U.S. government can err so completely as to view Mr. Mandela as a terrorist threat until 2008, then it can err today in deciding who is and who is not a terrorist. If the United States had had the drone capability and “legal” rationale in 1988 that it has today, it might have killed Mr. Mandela. There may be someone who would have been a Mandela of the future had not he or she been killed, quite “legally,” by the U.S. government in a drone attack.

John L. Hodge, Jamaica Plain, Mass.

Another article, an op-ed in The Boston Globe by Boston civil liberties attorney Harvey Silvergate and his assistant, Juliana DeVries, points out the threat to freedom of speech contained in the U.S. government’s concept of a “terrorist”: “Terrorism ruling assaults civil liberties.” 

The creeping expansion of the “terrorist” label is similar to what happened in the 1950s, which led to the frequent labeling of anyone who advocated for social change from the left, including Martin Luther King, a “communist.” Many people so labeled lost their jobs and some went to jail. Similarly, as the Silvergate/DeVries article indicates, “terrorists” are being targeted and sent to jail, and perhaps killed, based not on what they do but on what they think and say and their associations.

In 1957, the U.S. Supreme Court eventually put an end to the prosecution and jailing of “communists” based on their beliefs, expressions, and associations. (See its opinions, particularly the concurring views of Justices Black and Douglas, in Yates v.United States, 354 U.S. 298 (1957).) That Court was probably more liberal than the Court today: In Yates the conservative side of the bench produced only one dissent that favored the prosecution.

The only thing that separates us from a repeat of the oppressive anti-communist crusades of the 1950s, renamed the “war on terror,” is the time between now and the potential future. What that future will be, and when it might arrive, will depend on what we do today.

Also see my prior blogs on this subject:

Why Aren't Drone Killings Human Rights Violations? (3/9/12)

 The President’s Authority to Kill (3/27/12) 

The Myth of "Race" and Remedies for Past Harm--Part II.

The New York Times published the complete "Sunday Dialogue" yesterday online and today in print, titled "The Meaning of 'Race'" (link). This consists of my initial letter (also posted here July 16), five responses from readers, and my response to the readers.

My response is reprinted here:

The Writer Responds

Most responders would seem to agree with Mr. Rumbaut: “ ‘Race’ is a social status, not a zoological one.” But, as Mr. Bennett suggests, rational arguments are not enough to change our societal reality.

That reality is not changed by a “full mixture of genetic pools,” as Mr. Bennett proposes, because that mixture already exists. The idea of “race” prevents us from seeing it. As Dr. Monac points out, people we identify by a “race” are mixed with other “races.” Anyone who observes people riding the Manhattan subways sees a broad range of mixtures.

When we cannot tell what “racial” category a person fits into, we say the person is “mixed race.” But when you mix two myths, you get a third myth. The mixing of people we now identify as of different “races” is as old as the migrations of Homo sapiens out of Africa tens of thousands of years ago.

“Race” is a mental construct, not a physical reality. It is false construct that should be abandoned, not redefined. But while discussing the construct like academics, we have avoided discussing how to remedy the harm it has caused.

JOHN L. HODGE
Boston, July 19, 2013

I address remedying the harm racism has caused in Chapter 5 of my book, How We Are Our Enemy--And How to Stop, in the section titled "Go Beyond Affirmative Action to Eliminate the Effects of Past Discrimination--and Poverty."

The Myth of "Race" and Remedies for Past Harm

My letter below was published in the New York Times (online today; in print tomorrow) criticizing the concept of "race" while affirming the need for remedies for past harm. This is an "Invitation to a Dialogue" which requests responses to NYT by Thursday. On Sunday (according to the normal procedure) NYT will reprint my letter along with responses and my reply to the responses. 

LETTER

Invitation to a Dialogue: The Myth of ‘Race’

Published: July 16, 2013

To the Editor:

What should we do about “race”?

Over many decades, those who study genetics have found no biological evidence to support the idea that humans consist of different “races.” Based on such scientific data, Ashley Montagu published “Man’s Most Dangerous Myth: The Fallacy of Race” in 1942. New discoveries have confirmed what he said then. So why, over seven decades after his book, do we keep talking and living as though biological “races” exist?

Not only are certain “racial” classifications flawed, as suggested in “Has ‘Caucasian’ Lost Its Meaning?” (Sunday Review, July 7); all “racial” classifications are inherently flawed, because they are based on the false idea of “race.”

The myth of “race” has supported the horrors of slavery, apartheid, segregation, eugenics and the Holocaust. It continues to support racism. We cannot simply ignore the harm this myth has caused and pretend that the myth never existed.

The scientific, democratic and ethical goal should be to eliminate the false idea of “race” completely. But how do we both destroy the myth and remedy the harm it has caused?

We can begin by mentally changing how we see people. When we look at someone and automatically think about that person’s “race,” we must realize that we are not seeing “race” but instead seeing an arbitrary and harmful societal classification imposed on a continuum of physical differences.

When we want to ask how someone is classified by the myth, we should always put “race” or “racial” in quotation marks (as I have done here). Such questions still need to be asked, for example, on applications for college or a job, or for the census, for the answers provide the data needed to maintain diversity in education and the workplace and to monitor and remedy the harms the myth has caused and continues to cause. The long-term goal, however, is to make these questions obsolete.

JOHN L. HODGE
Boston, July 15, 2013

The writer is a retired lawyer, former professor of philosophy and the author of books, essays and a blog on democracy, ethics and human rights.

Editors’ Note: We invite readers to respond by Thursday for the Sunday Dialogue. We plan to publish responses and Mr. Hodge’s rejoinder in the Sunday Review. E-mail:letters@nytimes.com

A version of this letter appeared in print on July 17, 2013, on page A24 of the New York edition with the headline: Invitation to a Dialogue: The Myth of ‘Race’.

Florida wild-West law gives freedom to Zimmerman

The reason George Zimmerman was recently acquitted for killing Trayvon Martin is the consequence of Florida law. In accordance with this state law, the jury instruction at Zimmerman’s trial stated, “A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.” This means that in Florida, if you have good reason to fear that someone is going to rob you or assault you, even if they are unarmed, you can shoot them dead and not be prosecuted.

In accordance with this law, the jury instruction went on to state, “If George Zimmerman was not engaged in an unlawful activity and was attacked in anyplace where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.” This is why he was acquitted.

As today’s editorial in The Boston Globe stated, “Zimmerman’s acquittal reflects a presumption that, in Florida, one can pick a fight with a stranger for entirely dubious reasons, and if that stranger seems to be gaining the upper hand — as Martin did, in Zimmerman’s account — it’s acceptable to pull out a gun and shoot.”

This kind of law is commonly referred to as “stand your ground law.” As stated by Curt Anderson in the March 22, 2012 Huffington Post, “Florida is among 21 states with a ‘Stand Your Ground Law,’ which gives people wide latitude to use deadly force rather than retreat during a fight." In other states, the law generally is that if you can safely escape from harm, you should do so, and if you cannot escape, you can only use as much force as is reasonably necessary to protect yourself or another. “Stand your ground law” is the law of the wild West that is not appropriate for civilized countries. Combine this law with the lack of gun regulation, and you have murders like that of Trayvon Martin where the murderer goes free--not because of racism in this case, but because of the law.

The only way “stand your ground” laws can be changed is by the state legislators or state courts in the states where such laws exist, or by an amendment to the U.S. Constitution. Like marriage, the law of self-defense is a matter for states. Such laws are most likely protected from federal oversight by the Tenth Amendment to the U.S. Constitution, which states, “The powers not delegated to the United States [i.e., the federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

As with marriage and health care, the sanctity of your life still depends on the state in which you live. 

VII. Is a corporation a person?

(This post is the seventh in the series on corporations--see links below for previous posts. If you like this or other posts, share it with your friends.)

A corporation is a legal person but not a human one.

Unfortunately, the criticisms of Citizens United that attack the idea that a corporation is a human person miss the point and thereby divert attention away from the real need for campaign finance reform. (See my earlier post, The Misguided People’s Rights Amendment.)

A corporation has never been considered to be the same as a human person. There is a difference between a legal person and a human person. Corporations in U.S. law are legal persons, not human ones. This difference is important and negates the attempts to mock Citizens United as affirming that corporations are the same as people.

An example of the distinction between a human person and a legal person was made evident in the U.S. Supreme Court case of Federal Communications Commission et al. v. AT&T Inc., 562 U.S. ____, 131S. Ct. 1177 (2011).

This case began with an investigation of AT&T by the Federal Communications Commission. The FCC sought certain documents from AT&T under the Freedom of Information Act. The Freedom of Information Act states that the Act does not require the disclosure of certain specified kinds of documents. Among those documents that are excluded from the Act’s disclosure requirement are "records or information compiled for law enforcement purposes" that "could reasonably be expected to constitute an unwarranted invasion of personal privacy" -- §552(b)(7)(C).

AT&T argued that, as a corporate person, it had personal privacy rights. Thus, AT&T claimed that it, as a corporation, did not have to disclose records that invaded its personal privacy. The U.S. Court of Appeals for the Third Circuit agreed with AT&T. The U.S. Supreme Court disagreed and held for the FCC.

The Supreme Court’s opinion was unanimous except for the absence of Justice Kagan who did not participate. Justice Roberts, writing for the Court, stated, “’Personal’ ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities” (my emphasis). Thus, the Court held that corporations do not have “personal privacy” for the purposes of the personal privacy exemption in the Freedom of Information Act.

Note particularly that the Court referred to corporations as “artificial entities.” The Court thus has clearly established that there is a difference between human persons and corporate persons.

As we know, Citizens United did not make use of this distinction. Why? Later in this series I will post an examination of that case. In any event, Citizens United handled difficult legal issues that cannot be easily dismissed by incorrectly mocking the Court for saying that a corporation is a human person. The Court is quite aware that a corporation is a legal person, not a human one.

Thus, those jumping on the simplistic bandwagon of “corporations are not people” are shooting themselves in the foot by not addressing the more difficult constitutional issues that Citizens United present. These are difficult issues that require careful thought, not slogans.

_______________________________________

Links to previous posts this series:

Corporations (Part I of series): Introduction—Why We Need To Know About Them (2/3/12)

                II. Corporations: Their Early Beginnings (2/18/12)

                III. Corporations--an Example of Extreme but Conditional Power (7/3/12)

                IV: The First American Corporations--pre-1776 (12/31/12)
            
                V: The Transformation of the American Corporation (2/24/13)         

            VI. A recent example of potential governmental and people power over corporations

Attack the Myth of “Race” and Keep but Modify Affirmative Action

The Chicago Tribune columnist Clarence Page, on May 5, 2013, noted the absurdity of the question on “race” contained in Question 9 of the U.S. Census: “How to update census’ race question.” (See image of Question 9 below.) In addition to checking “white,” or “black, African Am. or Negro,” or “American Indian or Alaska Native,” there are several additional choices that are Asian nationalities or ethnicities. (The term “Negro” will be dropped.) The question not only confuses “race” with ethnicity and nationality, it also implicitly affirms the false idea that “races” exist as biological entities. This lie is not something that the U.S. Government should be perpetuating.

Mr. Page begins the column by noting the confusion of a woman who considered herself “white” but who recently discovered that she had an African-American ancestor. Was she “white” or “African-American”? Her dilemma was published on TheRoot.com. That website also published a short article linking to Mr. Page’s Tribune column: “The Census Race Question Isn't Working.”

While Mr. Page criticizes the old “race” boxes, I did not think his critique went far enough. Thus, I posted the following comment to TheRoot.com article:

Yes, the Census form question on “race” makes no sense. But it needs more revision than you suggest. Genetically, there is no such thing as a “race.” (Even if they existed, most Americans are mixed with one thing or another--as the young “white” woman discovered.) “Races” are not biological realities but are mythical social constructs that falsely impose rigid categories on a continuum. It is a very powerful and harmful myth that we must expose as nothing but a myth. (This does not mean that “affirmative action” has to be ended--the harm that the myth has done needs to be remedied.) Thus, the census question should not ask about anyone’s “race,” but instead should ask, “What ‘race’ or ethnicity do others generally consider you to be?” That gets the information needed to monitor discrimination without affirming the myth. 
--John L. Hodge (author--JohnLHodge.com) 

A reader replied to my comment by noting the harm of affirmative action programs. This is my reply to his reply:

. . . affirmative action does not have to be based solely on color. It should take into consideration other factors and shift its focus to impoverished backgrounds regardless of color, but still address the past adverse effects of racism where appropriate. AA needs to change but not be abandoned.

As I argued in Chapter 5 of my book, How We Are Our Enemy--And How to Stop, the concept of affirmative action should not be abandoned. We cannot ignore the immense harm the false concept of “race” has inflicted on us. It is wrong to close our eyes and just say, “Too bad, but there is nothing we can do now.” Nonetheless, a shift needs to be made from a purely “racial” or gender-based affirmative action to focus more on remedying the effects of poverty and poor education regardless of the color, ethnicity or gender of the victims.

The point is that we can attack the myth of “race” and at the same time find ways to address the immense harm that the myth of “race” has caused and continues to cause.

The parenthetical statement in my comment, “Even if they [races] existed, most Americans are mixed with one thing or another,” is based on a book, DNA USA: A Genetic Portrait of America by Bryan Sykes .

Here is the absurd Question 9 on the U.S. Census Form:

Also see my previous post,  It’s Past Time to Relegate “Race” to History .

Confusing Science and Faith

One sure way to destroy the separation of church and state is to treat science as a “faith.” I caught a Boston Globe columnist making this mistake and today (April 6, 2013) the Globe published my response (page A8):

Don’t confuse science with faith

KEVIN LEWIS (“Uncommon Knowledge,” Ideas, March 31 [Boston Globe]) seems to misunderstand science when he asks, “Could a faith in science similarly guide your values?” The question assumes that faith underlies science in the same way that it underlies religion.

The difference between science, properly understood, and faith is that science looks to experience to challenge and modify its own concepts, whereas faith is adherence to given ideas regardless of experience.

John L. Hodge

Jamaica Plain

As I’ve argued before, the survival and growth of democracy depend on getting religion out of politics. Politics needs to be based on facts (whether certain or probable), reasoned arguments and agreements. Science belongs in politics; faith does not.

_____________________________

Links to the author's related posts and writings:

• Fight Against Religion's Continuing Intrusion Into Politics

• Get Religion out of Politics: Part I
• Get Religion out of Politics: Part II
• What's God Got To Do With It?
• Towards—Or Away From—American Theocracy?
• Dialogues on God: Three Views
• An explanation of why the values of democracy require separation of religion from government is contained in Chapter 4 of How We Are Our Enemy—And How to Stop.
• A thorough analysis of President George W. Bush’s belligerent views connecting God to the United States is contained in Chapter 3 of How We Are Our Enemy—And How to Stop.

VI. A recent example of potential governmental and people power over corporations

(This post is the sixth in the series--see links below for previous posts)

A recent event in Switzerland illustrates the continuing role of government and the people in managing corporate power. On March 3^rd, in a national referendum, 68% of Swiss voters approved a measure that gives corporate shareholders the right to vote annually on senior managers’ pay and appointments. Corporate executives who do not comply with this measure are subject to a penalty of up to three years in jail or the forfeiture of up to six years’ salary. This new measure will be written into the Swiss constitution.

Also in Switzerland, the left-center Social Democrats are pushing another measure that would cap the pay of senior corporate executives at twelve times that of the lowest paid worker. At the moment there is not a likelihood that such a measure will pass, but if it did, it would create a major upheaval in the corporate world. Nonetheless, the threat of such a measure illustrates the power the people of Switzerland can have over their corporations.

The potential danger to Switzerland of measures like these is that Swiss corporations will pull out and incorporate elsewhere, analogous to what happened in the United States beginning in the late nineteenth century when companies sought to incorporate in the states with the fewest restrictions. (See previous post: “V: The Transformation of the American Corporation”.) Corporate executives in Switzerland are making such threats in an attempt to prevent such measures from passing.

For now, however, the newly approved measure will probably have little effect on the location of corporations in Switzerland. Corporations are already drawn to the country by its low taxes, stable politics and business-friendly laws. In other words, Switzerland may be somewhat like the Delaware of Europe. But the measure approved on March 3^rd suggests that this could change.

Switzerland is not alone in seeking greater governmental control over corporate executive pay. Reuters reports, “Brussels agreed [to] a cap on bankers' bonuses last week and countries including the United States and Germany have introduced advisory ‘say on pay’ votes. Britain also wants to give shareholders a binding vote on pay and ‘exit payments’ at least every three years.” (See link below.)

However, the Swiss measure goes further than any of these proposals. In addition to enabling shareholder control over executive pay, the approved measure also requires pension funds to vote in the interest of its members and make their votes public, and also restricts the financial dealings of Board members.

Unlike the ill-advised “People’s Rights Amendment” being circulated in the U.S. (see my earlier post: The Misguided People’s Rights Amendment), the measures taken in Switzerland and under consideration elsewhere target particular problems with corporate power rather than attack corporations as a whole as though they are all alike.

The Swiss measure opens the mental door to consideration of other measures that could regulate corporate financing of elections in the U.S.

_______________________________________

References:

Reuters online: http://www.reuters.com/article/2013/03/03/us-swiss-regulation-pay-idUSBRE92204N20130303

“Executive Pay: Fixing the fat cats,” The Economist, March 9, 2013, p. 64.

Links to previous posts this series:

Corporations (Part I of series): Introduction—Why We Need To Know About                                                   Them (2/3/12)

                II. Corporations: Their Early Beginnings (2/18/12

                III. Corporations--an Example of Extreme but Conditional Power (7/3/12)

                IV: The First American Corporations--pre-1776 (12/31/12)
            
                V: The Transformation of the American Corporation (2/24/13)

V: The Transformation of the American Corporation

(This post is the fifth in the series--see links below for previous posts)

During the second half of the nineteenth century, the American corporation underwent a dramatic change.

The early American corporations, while important, were not going to dominate business. The reason: the existence of a corporation required a specific grant from a governmental body, called a “charter.”

Since a corporation is a legal entity, not a natural one, its existence requires a legal act. “The charter is a grant of authority from the sovereign. It specifies the powers, rights, and duties of the corporation.” (2), p.129.

The nature of that legal act, the charter, changed dramatically toward the end of the nineteenth century. Until this change occurred, charters were granted one by one, by legislative acts, to establish corporations to do particular things. “Approval of a charter was a political issue, involving lobbying, campaign contributions, and worse.” (3), p. 13.

Yet, corporations had an advantage over other business forms. A corporation could raise capital quickly from a wide variety of sources. The purchasers of a corporation’s shares risked no more than the cost of the shares, while they stood to gain from the corporation’s success. The corporation did not need to rely solely on the wealth of a few people. Instead, it could obtain capital from numerous less wealthy sources, and the accumulated amount of this capital could easily exceed that available from one or two wealthy investors. To fund the industrialization of the nineteenth century, such capital was essential.

In the eighteenth century, most corporations were chartered for educational, religious or charitable institutions, or to create municipalities: cities and boroughs. (See the previous post.)  In that entire century, only 335 business had received charters in the U.S. (2), p. 129.

Industry in America began its enormous growth beginning around 1825, not coincidentally the year the Erie Canal was completed. Transportation and banking infrastructure were essential to this growth. Railroads began to expand, eventually connecting the Atlantic and the Pacific coasts. Banks went from small clubs of merchants providing credit to one another to chartered institutions that were essential players in the industrial expansion. The chartering of corporations one by one was a clumsy process that needed streamlining to keep up with and expand this growth.

This need was met by state legislatures, which, beginning around 1850, began to replace the one-by-one chartering process with general laws that simply required that a corporation can be created by filling out and filing the appropriate forms. “Under a general corporation law, anybody who wanted to could incorporate, and without wasting the time of the legislators.” (2), pp. 390-91. Any restrictions on the corporation were stated in the general law for all to see. Different states imposed different restrictions, but in the beginning of this process, all states who had such laws exercised some control over what corporations could and could not do. Massachusetts and New York, for example, placed upper limits on the size of the capitalization of any corporation incorporated in its state. Some of these provisions controlled the price of shares and specified what the corporation could or could not do without shareholder approval. States also charged fees to incorporate. (2), pp. 398-99.

In spite of these restrictions, the move from one-by-one chartering to a general law of incorporating evolved into a revolutionary change that enabled corporations to become the dominant business institution of the twentieth century, as they still are today.

Once a corporation came into existence, it was not restricted to operating solely in the state of incorporation. Court decisions essentially supported the idea that the U.S. Constitution, in particular the Commerce Clause and the Fourteenth Amendment, protected the right of a business to operate across state lines. This meant that, if a corporation wanted to do business in New York, it could incorporate in another state with friendlier incorporation laws, set up a storefront in the incorporating state, and do practically all of its business in New York. (2), pp. 396-98.

The states, in turn, had an interest in drawing business to within their borders. Businesses not only paid the states’ incorporation fees, they also provided a source of income for the states through taxation, and they potentially provided jobs. One way for states to attract businesses was by removing restrictions on corporations and lowering the fees. The states began to compete to be the least restrictive. Some other states simply did not enforce the restrictions on their books. New Jersey was the first to remove all significant restrictions. In its 1896 law, “a corporation could be formed for ‘any lawful business or purpose whatsoever.’” (2), p. 396. New Jersey quickly became the preferred home of corporations. But New Jersey then took a step “backward” and increased regulatory control over corporations. (3), pp. 13-14.

In 1899, Delaware passed its liberal incorporation law and did not step “backward.” It then became the favorite state for incorporating businesses. (2), p. 399. Even though many other states followed with equally liberal incorporation laws, Delaware’s prior success allowed it to establish itself as the source of developed corporation law and judicial expertise, thus adding more certainty and stability to corporate law than other states could achieve. Delaware remains the favorite home of corporations.

By the turn of the century, the American “corporation had torn free of its past--it could be formed almost at will, could do business as it wished.” (2), 399. This was possible only because states changed their laws. But the same reasons that led them to change their laws remain as reasons they are unlikely to reverse course and change them in the future to regulate corporate power. They could but, most likely, won’t.

Still, the existence of corporations and the scope of what they can do depend on the laws of the governments that enable corporations to exist.

___________________________

References (the numbers correspond to the numbers above):

(1) John Micklethwait and Adrian Woolridge, The Company: A Short History of a Revolutionary Idea: Modern Library, 2005

(2) Lawrence M. Friedman, A History of American Law, 3^rd ed.: Simon & Schuster (Touchstone), 2005

(3) Robert W. Hamilton, The Law of Corporations, 4^th ed.: West Publishing Co., 1996.

Links to previous posts in this series:

Corporations (Part I of series): Introduction—Why We Need To Know About Them (2/3/12)

II. Corporations: Their Early Beginnings (2/18/12)

III. Corporations--an Example of Extreme but Conditional Power 
                   (7/3/12)

IV. The First American Corporations--pre-1776  (12/31/12)