Culture of Death: Who Gets to Be a Person in Mississippi?

Patricia J. Williams 

The Nation Online,  blogpost of November 3, 2011 – 12:38pm ET, http://www.thenation.com/blog/164299/culture-death-who-gets-be-person-mississippi

On November 8, Mississippi is set to vote on Measure 26, a ballot initiative that would redefine the state’s Bill of Rights to extend the protections of personhood to include “every human being from the moment of fertilization, cloning or the functional equivalent thereof.” It is striking that the measure, which is largely motivated by religious concerns about the sanctity of human existence, crops up in a state that has one of the lowest indices for overall quality of life—whenever it might begin—in the entire country: the infant mortality rate over the last decade is about 10 per 1,000 live births, with black babies dying at twice the rate of white babies. Mississippi leads the country in obesity and ranks forty-sixth in the number of state residents who have health insurance. It suffers from high death rates from cancer and heart disease. Twenty-three percent of the population lives below the poverty level, giving Mississippi the unenviable distinction of ranking dead last in the nation.

With the odds of survival so relatively skewed, it is no wonder that there might be some anxiety over preserving the very idea of life. Then, too, the legal category of “personhood” seems particularly capacious since Citizens United; if such a label protects corporations, banks and homeowners’ associations—and don’t they seem to be thriving!—what blessings might it extend to a zygote, that abstracted conception of future stock, human capital, mortal enterprise?

As I write, the seven billionth person is said to be entering this earthly dimension. That statistic has been reported with Malthusian apprehension, as well it might. The resources of the world are not infinitely replenishable; much of the planet’s ecology risks systemic collapse as a result of habitat degradation, global warming, invasive species and thoughtless exploitation; and the superpowers continue to go to war with one another over dismally non-sustainable energy sources like oil, gas and coal. Add in the uncertain-to-teetering economies just about everywhere, and it isn’t hard to fathom the dangerous contradictions of those who feel both deep resentment about the mad global competition to make ends meet, and simultaneously, a frantic “need” to propagate more of “our kind” because “we” are too few—regardless of actual numbers or common well-being. It’s as though we are walking a tightrope stretched between fetishism of the fetus and an abyss of human disposability.

When, during a recent Republican debate, the audience cheered the fact that Rick Perry had overseen more executions than any governor in modern history, there was at least a momentary shudder among the punditocracy. What did it mean that a numbered batch of bodies was cause for such applause? Perhaps this is the new metric for presidential success: executions and summary assassinations, as though the scales of justice were measured in people-poundage, with some being heavier or lighter, depending on strangely monetized equivalences. There have been too many events of late that have been framed by our political and media spokespeople as measured by some curious human exchange rate. Does the targeted killing of unindicted US citizens like Anwar Al-Awlaki and his 16-year old son “equal” resolution for the violence he may have preached? Does the grisly display of Muammar Qaddafi’s body flung in a refrigerated meat locker “account” for the lost lives in Lockerbie? And whether you deem the late Troy Davis guilty or innocent, his execution was a stark example of how much habeas corpus has been whittled away in recent years, his death an indirect product of curtailed access to judicial appeal and substantive justice—limitations that are justified with reference to “time spent,” and “tax dollars.”

Indeed, Davis’s legal representation was severely compromised by crippling cuts in state and federal funding for the Georgia Resource Center, which represented him and other indigent prisoners in post-conviction hearings. His appeal was also hobbled by the Antiterrorism and Effective Death Penalty Act of 1996, which prohibits prisoners from raising, post-conviction, evidence that they might have presented at trial, no matter how probative or substantive.

Embryos notwithstanding, we seem less and less invested in protections for the sanctity of life in the here and now. Can’t let things go on forever, after all. Costs a bundle.

Recently, the state of Texas decided to do away with the last meal for death row inmates, that terminal rite of agency, of choice, of taking leave of the sensory. From now on, the condemned will have to eat whatever hash is being dished up in the commissary. Of course, the tradition of granting requests in one’s last meal is premised on a superstition of sorts, a fiction of making peace, of showing mercy, of stilling spirit. In Louisiana’s Angola Prison, for example, the warden shares that meal with the doomed, a kind of final communion. In other places and times, a last drink or a coin to the executioner might serve as the bridge between life and impending death, a marking of the day as Unlike Any Other. The killing of a human being, whether considered legally justified or not, is momentous, mysterious, a repercussive tragedy no matter how reprehensible the record of that life. There will always be those who wreak havoc in society, and who then sneer from the grave or the brink of it; there is, no doubt, a very human urge to give them a little shove into the great beyond. But the entire purpose of just governance is to model respect and to provide restraint in the face of such urges.

When, instead, our government is viewed solely as something to protect “us” against “them” to the exclusion of it being a constitutive force as well, the social world turns into a zero-sum game, in which others’ success at survival means less for you. That mindset engenders a mean little flare of relief every time there’s news of one less ne’er-do-well post-born mouth to feed. That not-so-subtle channeling of emotion toward the facile rendering of death distracts us from the policy choices that might make life more tolerable—preventive healthcare, basic housing, public education—even in our unnatural numbers. It allows us to ignore the inconsistency between gracing the mute quiescence of a fertilized egg with personhood while failing to endow the more lively political quests of the American Dream.

License and Liberty

by Patricia J. Williams

Released: 10 Mar 2011

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Fred Phelps’s Westboro Baptist Church is an alarming coven of zealots. Somehow they find the energy to picket everything from Comic-Con (“an excuse for whores to wear skimpy get-ups”) to the funeral of Mr. Rogers (for teaching tolerance to children) to the Golden Globe Awards (because “people chase after frivolity and vanity when they ought to turn back to their Lord Jesus Christ and_Repent and Obey”). Prejudiced in the broadest sense, they maintain that Catholics are the “most hateful people on earth”; Muhammad was a “whoremonger”; and “Jews are the real Nazis.”

It’s not surprising, then, that the Supreme Court created a stir with its recent holding inSnyder v. Phelps that freedom of expression precludes the government from punishing Westboro for picketing the funerals of private citizens with hateful epithets. The opinion, however, is quite narrow — the Court held only that the political content of Westboro’s rhetoric was protected by the First Amendment against torts of intentional infliction of emotional distress — and the popular impression that Westboro is now free to shout its fire and brimstone at funerals willy-nilly is misleading. Indeed, in the incident in question, Westboro complied with police requests to stay 1,000 feet from the funeral, and all but the tops of its members’ signs were hidden from mourners’ view.

What is most interesting, therefore, about Westboro’s social challenge was not really in the suit. Indeed, the general revulsion at the Snyder decision is probably underwritten less by the particulars of the case than by concerns about the Phelps family’s sanity: about their ghoulish haunting of funerals, their open calls for hatred, the sad plight of the smallest of their children holding God Hates Fags signs, as well as the enormous publicity that always attends such a sorry little band. The issues at stake go beyond free speech and touch on communications technology, profit, celebrity and mental health. Consider, for example, what happened in the wake of Jared Lee Loughner’s rampage in Tucson, when it was reported that the Westboro church “agreed” not to protest at the funerals of the shooting victims. But agreement implies agency, rationality, capacity to contract. How did Westboro — which claims to have picketed more than 44,000 events in more than 813 cities — suddenly become so “agreeable,” anyway?

As it turned out, there was indeed an explicit bargain not to protest in exchange for airtime on two radio stations. Arrangements like this have worked for Westboro before; most notoriously, it received lots of airtime in exchange for not picketing the funerals of five Amish schoolgirls killed by a gunman in 2006. Margie Phelps, a lawyer for the church, said that such contracts were made based on how much publicity they would get: “It’s how many ears we can reach. That is our job; that is our goal.”

That Westboro was not at the Arizona funerals was good news, but the transaction behind it is worrisome. Conservative host Mike Gallagher, one of the radio personalities who “donated” an hour on his show, said, “I don’t like the idea of giving them the satisfaction of this, but I believe my radio airwaves are less important than them hurting families.” But Gallagher’s nationally syndicated show reaches millions of listeners. Was Westboro’s absence really “worth” such broad access to so “many ears”? Gallagher positioned “his” airwaves as some kind of chit to be traded according to no bounds but his own. The deal had more than a whiff of extortion about it, like children who declare that they will stop screaming only if their parents let them have that candy bar NOW! What’s at work is less free speech than plain old bullying, shot through with entertainment value — a show that will get everyone’s juices jumping, better than a fistfight on Jerry Springer.

A week before the show aired, Gallagher gave lip service to balancing the program with moderating voices. In getting his network to agree, he said that it was important to have “a skilled, intellectual theologian type” in the studio at the same time. “So we invited the great Dinesh D’Souza to also be a part of this very important broadcast.”

One hardly knows whether to laugh or cry. Dinesh D’Souza? The one who blamed the “cultural left” for 9/11 because “what disgusts [Muslims] are not free elections but the sight of hundreds of homosexuals kissing each other and taking marriage vows.” The same D’Souza who believed that torture at Abu Ghraib “didn’t represent the values of conservative America” but rather “the sexual immodesty of liberal America.” D’Souza! Who as editor of The Dartmouth Review, published a vulgar satire of Jewish students’ celebration of Succoth.

Gallagher continued: “We’ve managed to do what the courts have been unable to do, and that is stop the Westboro Baptist Church from going to hurt these particular families…. We’re very proud of that, especially in the light of…this horrendous accusation that talk-radio somehow led to the events of last Saturday…with our so-called inflammatory rhetoric.”

And so the broadcast went forth to the multitudes, on January 17, Martin Luther King Day. Phelps’s daughter Shirley Phelps-Roper spoke in a soothing rush of soft urgency, declaring that final destruction is imminent. “God hates,” she said in her agreeably dulcet way; it’s just “His perfect righteous determination.” She called the Tucson shooting a “God-smack,” and complained “the media has shut the door to the word of God.” “The federal judge in Arizona [one of the murdered victims]…is paying the down payment for putting us on trial.”

My belief in free speech extends, with some distaste, to the Mike Gallagher Show. I believe that words ought to be countered with more words. I am not sure, however, if simple ideological commitment to free speech is sufficient when the ability to have one’s words heard is so linked to wealth and to access to complex propagandistic magnifications of the human voice. And I remain very unsure if the gospel of violent vengeance, which so titillates mass media, is not providing the basis for prophecy of its own.

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American Dreams

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Diary of a Mad Law Professor

By Patricia J. Williams

This article appeared in the December 29, 2008 edition of The Nation.

December 10, 2008

 

On December 8 the front page of the New York Times featured an arresting image of three snow-white SUVs on the altar of a Pentecostal church in Detroit. Like bullocks led to sacrifice, they were parked amid a swirl of parishioners in choir robes, arms raised in song and seeming supplication. The caption revealed that they were praying for the auto industry to be saved.

It might be tempting for some to dismiss such pageantry as idolatry, this beseeched-for sustenance embodied in a once-golden calf, now a dried-up cash cow. But as passion play, it is powerfully evocative of an American spirit. If I were the proverbial Martian anthropologist, I’d see similarities between those SUV anthems and a rain dance, or the miracle of the loaves and fishes. We pray for the cod to be plentiful, we pray for the corn crop, we pray for a harvest of cars. We look for divine signs that our traditional sources of abundance have not been driven to the point of drought or extinction.

 

The American Dream is a form of worship–if more than just metaphorically so–in certain branches of evangelical and charismatic Protestantism. From Daddy Grace to Pat Robertson, from tents to televangelism, a strong line of American sectarianism converts monetary remuneration into a form of God’s grace. Even for those of us to whom this configuration is not a matter of divine will but rather the outcome of applied economic ideologies and sociopolitical narratives, its immense symbolism is worthy of serious consideration. If this recession/depression is not the work of a deity hungry for sacrifice, it might be good to take a look at the stories we tell ourselves, the ones that bind, and blind, us to the stupidity, arrogance and corruption of those who rule from the heavenly pinnacle of top-down corporate, as well as Congressional, governance.

All our civic saints are ciphers for hard work and its just rewards: Horatio Alger, the self-made tycoon. Old MacDonald, the farmer in gumboots and plaid shirt. Joe Sixpack, the factory worker with his hard hat and lunch pail. My Ántonia, the busy housewife turned plain-spoken soccer mom. We recite parables in which their evil nemeses, the sloth and the sluggardly grasshopper, starve in the winter, and deservedly so; for there is fruit on the trees for all who reach for it and lay in a store of provisions. We invent the Evil Welfare Queen and try to do away with public assistance so that she will learn to help herself. We invent the Greedy Trial Lawyer as a reason to “reform” bankruptcy so that loan forgiveness is nearly impossible for consumers to get. We invent the Fat Cat Union Member, who schemes to break the back of his honest employer by burdening business with silly perks like pensions, minimum wage and healthcare.

An economic ice age is upon us, however. As with any belief system, the loss of an idyll results in fear, anger, anxiety. When Samuel Wurzelbacher, dba Joe the Plumber, availed himself of the opportunity to ask candidate Barack Obama about taxes, he premised his question on a scenario that had nothing to do with his actual life circumstances. He was supposedly a plumber–although he was not licensed in any state as such. He was supposedly going to buy a business worth $250,000–although he had liens against him for back taxes and medical bills and earned $40,000. Joe the Plumber, an aspirational but entirely fictive reverie, was so powerful an American persona that vast swaths of the public, as well as Wurzelbacher himself, were able to dis-identify with the actual living, breathing, struggling man. “Joe” is a hard-working man of means; Sam is a hard-working person who is barely making it. The inability to reconcile the vision and the reality creates a split, a chasm in which dissatisfaction festers, leaks, then seeks a target, longs for a scapegoat.

There is no comfortable role in American iconography for the poor. The myth of inevitable mobility leaves little room for acknowledging the existence of the dispossessed. Poverty is shrugged off like foreignness when you step off the boat and sashay down the golden bricks of Main Street. We Americans believe in pulling ourselves up by our bootstraps, but in case you’ve never tried it, pulling yourself up by your bootstraps pitches you forward, flat onto your face. As our industrial base moves offshore and our fruited plains are taken over by agribusiness, the trope of the blissful drone inspired by promises of phantasmagorical wealth is revealed as unsustainable. The creed by which we profess ourselves a classless society no longer leads to redemption.

Americans are the hardest workers among industrialized nations. We grind ourselves down with the longest workweek and the fewest social protections. No pint in the pub, no rest for the weary. The very idea of being “weary” has been displaced by images of the relentlessly able-bodied bionic economic man who never stops until the body is genuinely and visibly broken. Disability checks come only when you have the marks to prove it–a bit like the way the Bush administration defines torture.

And so I think it’s time we consciously craft new prayer totems. If I were to bring an offering to the altar of the American Dream, I’d haul in an electric tram, two intercity railroad cars and a bouquet of bicycles. I’d garnish them with copies of the Universal Declaration of Human Rights. I’d hand out praise songs for the concept of human dignity and for economic rights. We ought to recognize the basic need for sustenance as a right, not bury the larger question in the vexed vocabulary of “bailouts” and “handouts.” We the people have a right to a home, to healthcare, to untainted food, clean water, a living wage and time to rest, time to develop the personal ties and social engagements that sustain the best and most pleasurable parts of a civilization.

If we could retrofit auto factories to make tanks during World War II, how hard can it be to recognize that oil dependency is killing us–literally, in wars but also with climate erosion? How hard can it be to fire the petroleum-drunk heads of the Big Three and to get those desperately hopeful parishioners back to an honest, and honorable, day’s work?

Dialogue with Matt Bai

DAILY INTEL

Matt Bai and Patricia J. Williams Argue Over Religion in Government and Homeowners’ Role in the Financial Crisis

published on New York Magazine’s website

10/30/08 at 2:00 PM

 

4Comments

Photo: Getty Images

Every day (or close to it) until November 4, a series of writers and thinkers will discuss the election over instant messenger for nymag.com. Today, The New York Times Magazine‘s Matt Bai and The Nation columnist Patricia J. Williams argue over what an Obama presidency might mean for the judiciary and abortion, the current role of religion in government, and whether homeowners aren’t partly to blame for the financial crisis.

M.B.: I read that very good piece in our paper about the judiciary under Bush. Something you’ve watched closely, no?

P.J.W.: Yes, the composition of the judiciary is one of the things that will be most important and transformational. And the article started with one of the most interesting ways in which the judiciary’s thoughts will be important: It’s not just about abortion, but about how personhood is created. If a full, righted human being exists at the moment of conception, this has all kinds of implications that pit a woman’s body against that of her “unborn child” even if that designation refers to blastocytes…

M.B.: So do you expect a President Obama, should he be elected, to apply a pro-choice litmus test? What kind of judges are we going to see?

P.J.W.: No, I don’t expect Obama to do a litmus test. He’s much too complicated a legal thinker for that. But I do think that he’ll reject flatly theological designations in this debate. He’ll appoint people who have a more traditional regard and respect for the range, the plurality of ways Americans think about the limits of bodily integrity.

M.B.: I suspect most Americans would appreciate that. Even quite religious Americans I talk to seem to have grown weary of a theological brand of government. Liberals assume that the more religious you are, the less you want to see a separation of church and state, but my sense is that’s too broad a generalization.

P.J.W.: People have long referred to this as a woman’s “choice,” but I think in recent years there’s been some recognition that it’s deeper and more complicated than that. And aside from abortion, the specter of parents choosing “designer babies,” now that that technology is proceeding apace — this has brought a new level to the complexity.

M.B.: Right — technology is changing all of these debates, or should. It’s one of the ways in which boomer leaders seem to be somewhat retro. To hear them talk, nothing around these issues has changed for 30 years, but of course everything about them has, and in a very short time.

P.J.W.: Bioethicists and disability-rights activists have also entered this debate: The potential ability to predict risk for certain conditions from DNA — long before pregnancy — this has given new dimension to the prospect of a Gattaca-like future. And this removes the obsessive focus from abortion — it’s a revisiting of a very old problem — a kind of eugenic impulse on the one hand, in tension with a free-market ideology that would make self-improvement a matter of the market. Who can afford designer genetic intervention, etc. Traditional religion gives way to a reconsideration of foundational moral and ethical precepts.

M.B.: I guess that’s the battlefield for the next 100 years. Personally, I don’t feel like I could have improved on my kids. But they’re very small. I may feel differently when my son starts playing baseball.

This issue of judicial appointments is interesting to me, because Obama has staked his vision on this more bipartisan — or post-partisan — approach. The main question is how he lives up to this at, say, the cabinet level and in his congressional relations, but the judiciary is another area where the cultural divide has really grown extreme and contentious.

P.J.W.: One of the things that troubles me most about Bush’s appointments is not just that they’ve been arch-libertarians, but that they have been inconsistent ideologues. They are libertarian free-marketeers for some things, but simultaneously allow monopolistic and oligarchic accumulations of power that subvert optimal market operation. So they seem more partisan than judicious. Activists for particular wealth interests rather than the anti-activists they tell us they are. This is particularly true when it comes to consumer rights, women’s rights, and labor rights; but also with regard to disability rights, protection of health through regulation of pharmaceutical companies. And lord knows, in permitting the ungodly consolidation of our media outlets.

M.B.: Well, but that can be said of the entire hyper-conservative ideology, right? There’s very little consistency in any extreme ideology, right or left. The more extreme you get, the harder it becomes not to undermine your own principles.

P.J.W.: I guess you could say that inconsistency is there. But I have evangelical and fundamentalist friends who adhere to a consistent set of principles even when it leads them to conclusions that are personally uncomfortable. They’re rigidly consistent, and thoughtfully so — I may not agree, and they may not even like what their moral frame guides them to do, but they don’t do what’s convenient or self-interested. And that’s the difference.

M.B.: Yeah, I get that, but evangelism isn’t necessarily a political extreme. It can be just a religious framework (though we sometimes forget that now). I mean, the inconsistency of the arch-libertarians is, to me, no more surprising than the liberals I know who live by a code of complete tolerance but who easily employ the word “redneck” and would happily tell rural Americans how they should live. Ideologies in the extreme all end up in the same basic place. This is why fascism and communism are essentially indistinguishable at the margins.

P.J.W.: But most evangelism and fundamentalist Protestant movements in the U.S. purportedly adhere to a concept of the Inerrancy of the Word. That’s all I’m referring to. And many of the judges appointed in the last eight years say they adhere to a parallel kind of strict construction of the constitution.

M.B.: Agreed. I guess I’m just saying, as one who didn’t live through the sixties, that from my vantage point and I think to many in my generation, there’s “the Word” on one side and the antiwar, anti-establishment dogma on the other. I think this is what Obama has been gingerly trying to get at for the last two years — that rigid ideologies left over from the last century aren’t up to the complexities of this one. Which is more or less where you started out.

P.J.W.: I hope you’re right about the generational divide. Though Sarah Palin is younger than Obama, isn’t she? A lot of the power of evangelical megachurches is recent; its expansion is based on a throwback but not directly tied to the Vietnam era either.

M.B.: I think the megachurches are largely about community and are largely constructive, but that’s a debate for another time, I guess … as is Sarah Palin, because I can’t even get started on my annoyance with her anti-elitism shtick…

If Obama wins, what will be the role for legal scholars on the left like you?

P.J.W.: If Obama wins … hmmm. I don’t know that our role will change. I’m basically doing the same interrogations that I did when Clinton or Carter was president. And what will not change with an Obama presidency — despite the huge global sigh of relief — is the on-the-ground mess that’s been growing for decades. Just in the area of race: It’s very significant at the symbolic level to have an African-American president, but that doesn’t erase the nightmare of our incarceration rate — and about 90 percent, is it? (or more?) are AA or Latino.

M.B.: Yes, this is the fear of a lot of African-American leaders I’ve talked to — that Obama makes it harder, in some ways, to raise these issues. Al Sharpton is very thoughtful about this. He told me the success of politicians like Obama makes the role of civil-rights leaders even more important, not less so.

P.J.W.: Or that despite the dizzying ponzi schemes that are at the root of our economic collapse, it’s being figured in some sectors as a problem of lending to too many African-Americans — were that there were enough to make that kind of difference!

M.B.: Yeah, I don’t think African-Americans are a very fair scapegoat there. Though I do think there is something to the larger idea that the housing collapse was only partly about greed and partly, too, about people willing to take unreasonable risks to attain something close to the American dream that was handed down to them.

P.J.W.: I did a column recently detailing this, but just before Eliot Spitzer went down in flames, he did a very eye-opening piece about how the Bush administration blocked the state of New York’s attempt to prosecute discriminatory lenders and credit practices. In fact, the Bush administration prohibited states from enforcing their consumer-protection laws against any bank that was not strictly within state. So I don’t think this is mostly about excesses of the American dream. This was a complete blocking of ordinary and long-standing consumer-protection laws. The administration’s stance was so extreme that it was protested by all 50 states’ attorneys general and all 50 states’ banking directors.

And that was a very bipartisan group, as you can imagine.

M.B.: Yes, I saw that piece, and it was important. But I do think there is some distinction to be made between consumers who were swindled in fine print and those who simply took the best deal a bank would give them in order to buy a house they couldn’t afford. It’s a fairness issue, because an awful lot of Americans made wise choices that sacrificed their own ambitions to the reality of their circumstances, and they ought not to be screwed for it. I know that’s not a popular sentiment, but it’s important to understand.

P.J.W.: There are certainly greedy purchasers and people who overextend stupidly, but statistically that’s not what this collapse is about — take a look at some of these contracts. They’re filled with very old scams, scams that used to be illegal. Hidden clauses that allow enormous balloon payments; subsequent modifications that change from fixed to variable rate; rate increases that exceed all definition of usury; forms of insurance that protect one’s creditors but don’t give you a dime — but that don’t reveal that with anything like clarity.

In the wake of Katrina, a lot of people discovered that that’s the kind of insurance they bought — the insurance companies pay the banks the mortgage but don’t give the homeowner a dime. It’s one reason why so many homes remain unrepaired. And it’s a form of insurance that used to be illegal or much more heavily regulated.