How Not To: ‘White Voice,’ Blackface, and the Ethics of Representation

When is it fair to speak with someone else’s voice?

The Nation Magazine, September 10-17, 2018

In Boots Riley’s new film Sorry to Bother You, Cassius, the movie’s black protagonist, struggles to make a living as a call-center salesman. An older, more experienced black colleague named Langston comes to his rescue: “Use your white voice,” he advises. As K. Austin Collins noted recently in Vanity Fair, “The white voice is a fantasy of whiteness, as Langston explains it; even white people don’t really live up to it…. It’s what success sounds like—with the added implication that when it comes to race, success is not meted out equally.”

Indeed: Some years ago, I lost the audition to record the Audible.com version of one of my own books. A talented professional actress won the role of speaking me. She did a fine job, and her delivery was probably much better than mine—although I had to learn to hear myself in her, and to own this rendering of my words. Later, I was told that the reason I failed the audition was that my voice “did not sound black enough.”

The rub, in both scenarios, is between the “sound of success” and stereotyped accents of woe; between the plain meaning of a message and the social context that renders its messenger credible, or incredible. Who is empowered to say what about whom? That question is at the heart of many recent debates about the uses of “white voice,” “brown voice,” “blackface,” transgender casting, minstrelsy, mockery, and the complexities of appropriation. The politics of representation are never easy. “Pussy” can be a cat in Britain, a hat in New York, a satirical Riot in Russia, and a vagina in the mind of Donald Trump. It all depends on context, intent, history, time, place, and diction.

Trump impersonated a call-center worker during a 2016 campaign rally. Transliteration is dangerous, but it sounded something like “we yahr frum Indy-yah.” The “joke” was prelude to his expressing disgust at the worker’s not being American by abruptly hanging up the phone. Trump was speaking in a voice he disowned in order to mark racial and ethnic difference as contemptible; that’s why it was hurtful.

By contrast, in Sorry to Bother You, identical ideas are heard as not-identical when spoken in a white rather than a black accent. Cassius used a voice that was not “his own” to mock illogical assumptions of racial difference. That made it fair game.

At another rally, Trump delivered a ham-fisted “Asian” accent to ventriloquize Chinese and Japanese businessmen (“We want deal!”). A self-described “Asian guy” then wrote on Twitter that he wasn’t offended because “I mimic southern hicks [in the US] all the tiimmmeeeee.” The self-serving disingenuousness of such a tit-for-tat misses the point: It’s not about political correctness, or freedom of speech, but that “the voice” is a crude reduction designed to diminish anything substantive said by “hicks” and greedy Asian businessmen alike. The implication of this type of speech is that we don’t have to listen to someone who is nothing more than a funny accent.

The deeper ethical dimension of this argument centers on the use of metaphor. Metaphors allow us to give form to a phenomenon by invoking a likeness as it appears to us. They inevitably reveal our inner sorting mechanisms: Recently, I heard a man call to his small dog, “Come here, Mommy!”

What attributes does he assign to dogs and/or mothers in joining them taxonomically? How does such joinder affect his behavior toward either?

Metaphor, catachresis, anthropomorphosis, code-switching, “passing,” inflection, speaking in a different voice, satire—these all refract versions of what we receive as truth. It follows that the relentless typecasting of underrepresented religions, cultures, or ethnicities—i.e., populations generally unable to present themselves in mass media—keeps us stupidly naive. Hari Kondabolu’s documentary The Problem With Apu makes this point brilliantly by examining the intent, connotation, and effect of Hank Azaria’s “brown voicing” of Apu, The Simpsons’ most prominent South Asian character.

Everyone on The Simpsons is a caricature: bratty kids, deadbeat dads, mad scientists, stupid teachers, and so on. But the problem with Apu is that he’s a meta-caricature: an animation of white Americans performing what they imagine South Asians to be. Apu is little more than the avatar of a specific team of white television writers and producers carelessly and inaccurately mouthing how they think Indians speak—despite more than two decades of complaints from actual Indian Americans and South Asians who get bullied with Apu-isms every day, and who resent relentless requests to “do the accent.” Kondabolu repeatedly points out the faulty syllogism: In The Simpsons, Apu is the singularized cultural representation of his parents—but his complex, plural parents are not Apu.

Kondabolu’s film looks at the wider social injury of various forms of minstrelsy that are too often romanticized as “funny” or “exotic” or “typical” of “them” and “their culture.” On-screen and off, the show’s producers grow anxious when Kondabolu explains the lived consequences of their misrepresenting Indian-American experience with no humanizing countercurrent. Over and over, they question whether criticism of Apu means that they can never use accents or speak for another.

Yet humor without wholesale misrepresentation or diminishment is not impossible. What it does require are thought and research, as well as a disciplined refusal to crudely generalize. If we can’t see that Apu is a projection of white self-regard and not a “real Indian,” then we probably won’t ever grasp the insidious irony of Donald Trump blackfacing and brown-voicing the world beyond our borders, while White House–voicing—and thereby legitimizing—Alex Jones, David Duke, and possibly Vladimir Putin. When comedic reductionism becomes (sur)realpolitik, it is no longer just minstrelsy; it is disenfranchisement. We cakewalk to the polls.

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Bad Blood

by Patricia J. Williams
The Times Literary Supplement, July 20, 2018, No 6016, http://www.the-tls.co.uk

“The Beautiful Baby Competition” by Frank Brangwyn (1867–1956)
© Bonhams, London/Bridgeman Images
_______________________________________________________
Molly Ladd-Taylor
Scott W. Stern
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“They’re bringing drugs. They’re bringing crime. They’re rapists”, said Donald Trump of immigrants from Mexico and Central America, as he launched his election campaign in 2015. “Why are we having all these people from shithole countries come here?” he later asked, as President, referring to immigrants from Haiti and the African continent. In a tweet last month, while rationalizing policies that segregate, imprison and summarily deport asylum seekers, he framed the problem as one of outright pestilence: “Democrats . . . don’t care about crime and want illegal immigrants . . . to pour in and infest our country”. And Trump’s nativism is not unique among powerful American politicians: the House Speaker, Paul Ryan, has urged “higher birth rates in this country” as a way of boosting the economy. As the immigration attorney Matt Cameron wrote in a recent issue of the Baffler: “[Ryan] did this within weeks of backing massive legislative cuts to legal immigration rates and passively blocking a legislative solution to the DREAM Act that would have ensured the lives and futures of more than one million young aspiring Americans who happened to have been born in the wrong kinds of countries to the wrong kinds of parents”.
The overtly eugenic populism that has resurged in the United States recently has been shocking to some (if not enough): Lock ’em upClean ’em out. Not our children. Build that wall. The Justice Department has for some time been not only deporting but criminalizing asylum seekers, penalizing the poor and stateless merely for seeking entry to the US. Most notoriously, the government has been taking children away from their families as penalty for that supposed crime. Before Trump ordered such separations to stop, the Attorney General, Jeff Sessions, suggested that child removal would “disincentivize” others from coming. Under this programme, even infants and toddlers have been shipped thousands of miles away from their parents, to often untraceable destinations all over the continent. Some children have ended up in crowded cages and warehouses on abandoned army bases. Some of their identities have been lost in the process, so that they might never be reunited with their desperate parents. And, as Cameron sums it up, “we arrive now at this new border, a place that any person of conscience must recognize as a point of no moral return. A country that would not only rip children from the arms of their parents, but then intentionally orphan and exile them just to ‘send a message’, risks not only losing them, but itself”.
But if some contemporary US policies seem uniquely inhumane, it is important to recognize how many of them have direct historical precedent. It’s perhaps easy to see in the logic of America’s mass incarceration, or its so-called “school-to-prison pipeline”, or the internment camps where ethnic Japanese citizens were confined during the Second World War, or the enduring scar of slave auctions by which familial relationships were rendered irrelevant as children were snatched from their mothers and sold as chattel. Less well remembered, however, is the Progressive Era’s embrace of social Darwinism – a pseudoscience popular in Britain and Europe as well, but which, in America, came together as a powerfully institutionalized set of laws and enforcement mechanisms premissed on a mixture of misogyny, class bias, race panic and anti-immigrant resentment. It was during this period, from the late 1800s through to the first half of the twentieth century, that New York’s infamous Eugenics Records Office was formed to issue “pedigrees” of Nordic purity. This was the era of the Social Hygiene movement, which justified moral purges, intimate oversight of poor women’s reproductive choices, separation of children from parents, mass sterilizations, and the indefinite detention of those deemed “unfit”. This, too, was a time when the “American Plan” for eugenic manipulation flourished and grew – and which, when studied and implemented by Nazi Germany, morphed into the Final Solution.
This long-ignored history is the subject of Molly Ladd-Taylor’s Fixing the Poor: Eugenic sterilization and child welfare in the twentieth century, which studies the impact of efforts to “contain” and distinguish the variously and often incoherently defined problems of “delinquency”, “immorality”, “imbecility”, “waywardness” and “feeblemindedness”. Poor people, particularly women and girls, were suspected disproportionately of being the source of such conditions. Ideologically, “treatment” was framed as an issue of public health, but Ladd-Taylor shows that an even greater concern was sparing the public purse. Thus, sorting the “deserving” from the “undeserving” poor became a primary metric in deciding quarantine, steril­ization, education, or release. Venereal disease, prostitution and mental disability were seen not only as social contagions but also as biologically incorrigible, genetic, innate. “Pauperism” became an economic disease, a parasite on the public dole and a burden on taxpayers; its elimination was paramount.
Ladd-Taylor literally follows the money that underwrote hospitals, prisons and special schools, using the state of Minnesota as an exemplar. There, as in many states, public policy was driven to a great degree by per­ceptions of economic class as embodied. Thus, middle-class youths were often privileged as “too independent” and therefore in need of more home-training, more moral uplift, firmer parental intervention. Indeed, “delinquency” became normalized as a stage of white middle-class boys’ development. They needed “guidance, not strict punishment”, according to one judge quoted by Ladd-Taylor, because such boys had energy, initiative and “are the ones who, under proper conditions, make the very best citizens”. This belief grew out of the common law tradition of seeing the state as protector, underpinned by depictions of the juvenile court judge as a “wise and kind father”.
In contrast, the working class and very poor were treated as inherently dependent on state resources – destined for eternal pauperism, in other words. These latter became ciphers for contagion, carriers of corruption, and therefore in need of confinement. The distinction between the deserving and the undeserving rested on quite explicit assumptions of heritable worth: at one end, “innocent” delinquents needed more care and support; at the other, “dangerous” defectives warranted strict control for fear of their contaminating others and multiplying. Families were torn apart in this sorting process: those children deemed “in suitable condition of body and mind to receive instruction” were housed in institutions such as the State Public School for Dependent and Neglected Children in Owatonna, Minnesota, until they could be “placed out to work or adopted”. In the mid-1880s, the school’s superintendent, Galen A. Merrill, rationalized: “There are parents who are not worthy to rear citizens of this republic”.
A second book, The Trials of Nina McCall: Sex, surveillance, and the decades-long government plan to imprison “promiscuous” women by Scott W. Stern, looks at the same set of laws during more or less the same time frame, but through the particular experience of Nina McCall, one of many white working-class teenagers swept up by the state of Michigan’s over-zealous morality police, and whose life was upended by the ensuing nightmare. Suspected of having venereal disease seemingly for no reason other than her having been observed unaccompanied on a trip to the Post Office, McCall was, in 1918, detained for months without any semblance of due process. She lost her job and her reputation and became estranged from her family. Her vagina was probed endlessly and her body injected with mercury and arsenic, all in the name of “cure”. The relentless prodding of “suspected” young women was not accompanied by anything like scientific rigour, consistency of observation, accuracy of record-keeping, or coherence of diagnosis. McCall, once forcibly tested, was arrested based on a supposed diagnosis of syphilis, but ended up being given anti-gonorrhoeal medications.  What makes McCall unusual among the many tens of thousands of American girls also targeted is that she sued the state. It took two years for her to be partially vindicated by the Michigan Supreme Court, which recognized her right to a trial, and even so her small victory did not slow the ideological diffusion of the American Plan for moral purge. (Tellingly, the court only ruled that McCall’s detainment was unlawful because the grounds for suspecting her of infection were a little too weak.) McCall’s story is captivating as pure biography, but it is all the more remarkable documentarily: it stands as one of the few formal challenges to these laws, and one of the very few whose heart-wrenching traces were captured in a trial record.
The American Plan (not to be confused with the anti-union movement of the same name) was a programme designed to control sexually transmitted disease. It was different from the earlier French Plan instituted by Napoleon, which sought to confine prostitution by semi-legalizing it. Known as “regulationism”, the French system required sex workers to register, submit to regular genital inspections, and confine their activities to particular (red light) districts. In contrast, the American Plan never completely bought the idea of prostitution as something that could or ought to be regulated; true to its more Puritan legacy, the US set about trying to eliminate “immorality” by outlawing it. Unsurprisingly, therefore, public governance tended to treat prostitution not merely as a moral failure but as a criminal act. “Waywardness” in a woman was deemed not only a product of socialization, but reflective of innate mental deficits associated with “imbecility” or “feeblemindedness”. Anti-corruption squads composed of police, sheriffs, social workers and religious leaders, combed the streets of cities and small towns, detaining women and girls en masse and conducting crude genital probes. And it did not necessarily matter whether these “tests” resulted in diagnosis of any sort, for the conduct of these righteous teams was itself often corrupted by greed, reputational gossip, and stereotype: black and immigrant women were presumed to be looser in their conduct. Poor women could be labelled promiscuous if they merely seemed so to a detention officer. A neighbour with a grudge could call the vice squad. In addition, police received bonuses in line with the number of arrests and detentions, and policies could be touted as “successful” based on volume alone. Although the Reagan revolution is remembered for its racialized nomination of “welfare queens” and “the undeserving poor”, these too are concepts that date back to the Progressive Era.
The cruelties as well as the efficiencies underwriting this system were at least partly the legacy of practices endured by slaves in the South and indentured servants in the urban North. During nineteenth-century slave auctions women, and men, were often stripped for display, their genitals publicly inspected for signs of disease, their personalities rated for docility and passive obedience. And, given popular medical theories of the time that African and “inferior” breeds were impervious to the normal limits of pain, the bodies of black slave women and Irish immigrants disproportionately served as the experimental playground for doctors perfecting early gynaecological methods and surgical sterilization. (Those looking for detailed accounts of this might turn to Harriet A. Washington’s Medical Apartheid: The dark history of medical experimentation on black Americans from colonial times to the present, 2006, and Deidre Cooper Owens’s Medical Bondage:Race, gender, and the origin of American gynecology, 2017.)
During the Progressive Era a new kind of bureaucratic order began to have appeal. The passion for too-neat typologies advanced by some natural historians and scientists – “Conceive for a moment”, Louis Agassiz wrote in a letter in 1863, “the difference it would make in future ages . . . if instead of the manly population descended from cognate nations, the United States should hereafter be inhabited by the effeminate progeny of mixed races, half indian, half negro, sprinkled with white blood . . . . I shudder at the consequences” – became crossed with the pleasing pseudo-mathematical balance sheets of actuarialism. In 1906, the Race Betterment Foundation was established in Battle Creek, Michigan, by John Harvey Kellogg, the inventor of the corn flake and a tireless polemicist for the “purity of the gene pool”. An advocate of sexual abstinence, he campaigned against masturbation as well as racial miscegenation. His foundation became an influential force in advancing theories about the evils of sex unless it were seed sown in the “proper” advancement of racial hygiene and superior “pedigree”. His foundation sponsored many of the eugenic fairs and congresses that flourished during this period, including Fitter Family and Better Baby competitions. Around the same time, the biologist Charles Davenport founded the American Breeder’s Association, whose mission was to spread the alarm about “the menace to society of inferior blood”. Davenport, who supported ster­ili­zation of “unfit” human “stock” as well as restrictions on immigration from Eastern and Southern Europe, went on to establish the Eugenics Record Office in Cold Spring Harbor, New York, which became the enduring centre of the American eugenics movement. (Over the past half-century, the laboratory has distanced itself from those origins, becoming better known as the intellectual home of Barbara McClintock, James Watson, Francis Crick, Carol Greider and others, and for their work in molecular genetics, cancer research and the discovery of telomeres. Nevertheless, the archives of the American Eugenics Movement are still housed there, and may be studied at eugenicsarchive.org.) Davenport also believed, Ladd-Taylor points out, that Mendel’s theory of inheritance in simple organisms such as pea plants could be flatly applied to traits in human populations. He thought, wrongly, that a complex range of conditions – in those days, labelled variously as idiocy, imbecility, defectiveness and degeneracy – resulted from a single trait that could be reliably predicted by dominant and recessive patterns of transmission. This mistake was used to justify sterilization, institutionalization and segregation of “fertile feebleminded” women during childbearing years.
In 1911, John D. Rockefeller, Jr created the Bureau of Social Hygiene to counter (largely baseless) public fears of “white slavery”. In the name of science, he funded a laboratory in the New York State Reformatory for Women at Bedford, dedicated to eugenic propositions. Women “adrift” could be rounded up, quarantined and subjected to tests not only designed to ferret out venereal disease, but to sort the subjects by IQ, degree of “degenerate” disposition, and purported educability in the arts of housekeeping. Those deemed “incorrigible” or “feebleminded” might face life imprisonment; those deemed more responsive to supervised intervention and schedules of reform might eventually be hired out as domestic servants, seamstresses, or laundresses. There were institutional distinctions among homes for the feeble-minded, detention centres, reformatories and jails. Meanwhile, the application of Mendelianism to human reproduction soon became overlaid with statistical modelling. In 1877, the prison reformer Richard Dugdale had done a study entitled “The Jukes: A study in crime, pauperism, disease and heredity”, covering seven generations of “debauchery” and “degeneracy” among a rural family living in upstate New York. In 1915, this report was rewritten by Arthur H. Estabrook, who was funded by the Eugenics Record Office to foreground the role of pure heredity. This latter version made the Jukes iconic in the public imagination, Ladd-Taylor says, as “an inbreeding rural family too lazy to look for work and living in a hovel [and who] epitomized the supposed innate unfitness of poor ‘white trash’”. While Dugdale himself had urged that improved social environment was central to “fixing” such people, the practical impact of Estabrook’s take was more sinister: it frightened the public sufficiently to spawn a movement that placed great emphasis on heritability of moral and mental weakness. Fixing the Poor clearly documents how this led to broad justifications for sterilization programmes.
Under the American Plan, degeneracy was also a matter of youth, aesthetic appearance and “obvious” abnormality. Children as young as eleven, including those who had been abused or the victims of incest, could be carelessly labelled “incorrigible” if they looked “slovenly”, and quarantined or scheduled for tubal ligation. And as Susan Schweik has shown in her masterly study The Ugly Laws: Disability in public (2010), many states were also passing ordinances during the Progressive Era limiting the ability of people deemed unpleasant-looking to move about in public without licences. The limping, burnt, or blind, polio sufferers, those with shrivelled limbs, conspicuous birthmarks or speech impediments – all might be banned not only from begging but from conspicuous “display” of themselves in public. Appearance alone became a measure of how much these subjects might be able to seek employment, pursue a career, appeal to human empathy, or ask for alms. This exacting scrutiny, the measurement of brows, of jaw, of width of noses and distance between eyes, became a literal blood sport, a phrenology of racial and class supremacy. Meanwhile, the capacious label of “feebleminded” increasingly led to diminutions of respect for the personhood of those so branded. They became the to-be-controlled, incapable of “real” or human feeling, future-less yet “insatiably” needy. Both Fixing the Poor and The Trials of Nina McCall are filled with quotes from legislators, lawyers, doctors and religious crusaders that compare victims caught in this system to “vegetables”, empty vessels and the walking dead. As Stern points out, and Ladd-Taylor would agree, “feeblemindedness was more than just a mental condition; it was an indicator of morality”. Thus, it was linked inextricably to the undermining of “our civilization”.
Yet the seeming haphazardness of cate­g­or­ization disguises the degree to which the American Plan was indeed a plan: and one of its features was precisely decentralization. As Nina McCall’s story illustrates, it was a system encouraged by the federal government, but whose administration was pretty much left to individual states, where standards were both varied and incoherently pursued. Thus, overall statistics remain difficult to gather. Local administrators were granted wide discretion, making it hard to hold any given person or locality accountable for mistreatment or even death.
The goal of suppressing the fecundity of the “unfit” was further enabled by increasingly survivable forms of surgical sterilization. The first eugenic sterilization law was proposed in Michigan in 1897, and the first passed in Indiana in 1907. The Eugenics Record Office produced a Model Law that was enacted by a number of states, and by around 1918, American physicians had, according to Stern, started to see sterilization “as the most effective way of combating race degeneracy”. In 1927, that Model Law, as enacted by the state of Virginia, was tested before the Supreme Court, by the claim of Carrie Buck, an eighteen-year-old girl being held as “incorrigible” at the Virginia Colony for Epileptics and Feebleminded. Buck protested against involuntary sterilization on the grounds that it violated equal protection laws as well as her right to bodily integrity. She lost. In an infamous opinion (cited years later by Nazi doctors in their defence statements at the Nuremberg trials), Justice Oliver Wendell Holmes wrote: “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind . . . . Three generations of imbeciles is enough” (Buck vs Bell, 1927). For years after the ruling, the numbers of forced salpingectomies – by which the Fallopian tubes are entirely removed – climbed, while the standards of review fell. And in 1941, a new federal agency was created, the Social Protection Division. Its mission, Stern explains, was to “persuade local officials to enforce their own laws” to stamp out social disease. In 1946, Dwight Eisenhower, while Chief of Army Staff, endorsed a federal bill (ultimately not passed) that would have extended quarantine and prosecutions under the American Plan, further lowering the standard by replacing the words “infected persons” with persons “reasonably suspected of being infected”.
The fear of poor, dissolute and particularly of mulatta women who might “pass” as white and contaminate “pure” blood lines by infecting white men, meanwhile, became a quieter form of institutional disciplining. The Trials of Nina McCall documents efforts, during the First World War, to regulate and repress not only brothels near army bases, but to stop white soldiers from visiting black neighbourhoods as a way of preventing them from having any contact at all with black women, deemed “inevitably” promiscuous. And during the Second World War, the American Plan was applied in ways that reveal gross racial disparities. Prostitution was assumed if a white woman was merely in the presence of a black man, or, in one case, because she had been “seen repeatedly in a restaurant favored by Filipinos”. Indeed, while the data cited in both books primarily concern the mistreatment of white girls and women, the majority of women negatively affected by the American Plan were women of colour – particularly black, Chinese and indigenous. Those women’s fates are less well documented, but there are clear con­nections among perceptions of white female fragility, black contagion and the need for intervention. As the Surgeon General, Thomas Parran, opined in the 1940s, it is not the black person’s “fault” that syphilis is

  • biologically different in [the Negro] than in the white; that his blood vessels are particularly susceptible so that late syphilis brings with it crippling circulatory diseases, cuts his working usefulness in half, and makes him [an] unemployable burden upon the community in the last years of his shortened life. It is through no fault of hers that the colored woman remains infectious two and one-half times as long as the white woman.
Stern reminds readers that even as these words were being uttered, the US was still conducting the infamous Tuskegee Syphilis study of 1932–72, in which the “natural” progress of syphilis in the bodies of 622 disenfranchised black men in Alabama was observed by the United States Public Health Service, with all treatment withheld even after penicillin was discovered. The men were told only that they had “bad blood”. (To add insult to injury, they were offered free burial insurance in exchange for participation.) Civil rights debates, too, often reverted to discussions of the sexual risks of integration, says Stern: “After the 1954 decision of Brown v. Board of Education, an organization called Separate Schools denounced the black community as ‘a vast reservoir of infectious venereal diseases’ . . . . When black female citizens in Birmingham, Alabama, tried to register to vote, they were sometimes asked if they had STIs”.
Come 1963, there were official records of 63,678 sterilizations having been performed under the US sterilization laws, although actual, unrecorded numbers are likely to have been far higher. By this time the use of penicillin was changing much, if not everything. The last vestiges of federal co-ordination for the American Plan melted away, leaving individual states as the unguided, inconsistent and sometimes extreme enforcers of social values; in addition, the nascent women’s movement began to challenge norms of sexual morality. Still, both Stern and Ladd-Taylor cite instances where the invocation of the American Plan persisted until the 1970s, as in Salt Lake City, Denver, or Fresno. Significantly, Stern tells how Andrea Dworkin, then a college student, was arrested during an anti-war protest in 1965. Dworkin, who would go on to become one of the best-known feminist writers and anti-pornography advocates in the world, was taken to New York City’s Women’s House of Detention where her experience echoed Nina McCall’s testimony so many years before: “In addition to the many strip searches by hand that police and nurses made into my vagina and anus, I was brutalized by two male doctors who gave me an internal examination, the first one I had ever had. They pretty much tore me up inside with a steel speculum and had themselves a fine time verbally tormenting me as well . . . . I began to bleed right after”. Stern notes that Dworkin “would continue to bleed for days after. When her family doctor examined her, the doctor burst into tears”.
These books are impossible to read without a confused sense of both hindsight and dreadful foreboding. In The Origins of Totalitarianism, Hannah Arendt wrote that “the danger . . . is that today, with populations and homelessness everywhere on the increase, masses of people are continuously rendered superfluous if we continue to think of our world in utilit­arian terms”. That superfluity renders people disposable, mere things – “creating creatures who are alive in fact, but dead in law”, as the essayist Colin Dayan has described it. The weight of what no one wants, the extinction of those never given voice, is quietly buried in what Arendt thought of as “holes of oblivion”.
We Americans live in the present tense after all – everything is sui generis, everything popped up overnight by virtue of individual choice and choice alone. But there are echoes of the American Plan everywhere. The Sentencing Project, a public-interest research body, notes that the numbers of imprisoned women rose 646 per cent between 1980 and 2010 – 1.5 times the rate of men’s incarcer­ation during the same period. Fixing the Poor ends with a warning that “child welfare and criminal justice systems have emerged as leading instruments of eugenics control in the twenty-first century in part because they are easily reconciled with religious qualms about abortion, sterilization and reprogenic technologies”. Now as a century ago, we encourage “affluent Americans to have children, while deterring childbearing and childrearing by low-income women and single mothers, especially women with dis­abilities, drug addicts, and poor women of color”. The Trials of Nina McCall also ends on a haunting note: “Each of the laws that enabled the American Plan – those laws passed at general federal behest in 1917, 1918 and 1919 – remains on the books, in some form, to this day. Not one of them has ever been struck down by an appeals court”.

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“Women In and Out of Control,” Times Literary Supplement Podcast with Kate Webb and Patricia Williams

https://www.acast.com/tlsvoices/women-inandoutofcontrol

 

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Brett Kavanaugh: Law, Politics, and Judicial Ideology

by Patricia J. Williams

Published in The Nation Magazine, July 13th, 2018

Recently, a friend asked me why it matters whether Supreme Court nominees are “liberal” or “conservative.” She understood those words to refer only to party politics: “Aren’t legal questions confronting judges supposed to be above politics?”

I could understand her confusion. The way many media pundits have been discussing judicial ethics often conflates what is meant by liberal-conservative in the jurisprudential realm with what it means in the political realm.

My friend was quite right, of course, about the principle of separation of powers: Laws are the result of political decisions made by legislatures, and the judiciary construes and interprets the applications and limits of those laws. Thus, in order to ensure impartial decision-making, a judge’s ethical responsibility must be to place enacted law above his or her “personal political beliefs”—indeed, it’s a mantra of judges during the approval process.

But in practice, judges’ thinking is shaped by various jurisprudential movements and philosophies of interpretation, some of which have become no less contested and divided than party politics. Within the law there are theories of reading, a bit like biblical interpretation. Think of the divide within the Church of England: Nigerian bishops’ take on Anglicanism has tended toward highly literal readings of particular Biblical passages, for example, denouncing homosexuality as near-unpardonable sin. In contrast, retired Archbishop of Canterbury and Primate of All England Rowan Williams has argued that “orthodoxy should be a tool, not an end in itself.”

Just so, some judges, like orthodox religionists, read the law literally, strictly, with no allowance for connotation. Other judges read the law as Williams might, “as a tool” not an end; they read for law’s meaning in particular contexts, or based on what they deem a reasonable penumbra of attendant meanings, or expand the meaning beyond its original meaning to encompass situations not anticipated by the law’s authors or enactors at the time originally written.

For example, when constitutional protections against search and seizure were made law, there were no telephones or internet or satellite surveillance. How then, do those technologies—of bugging or data collection—fit within the meaning of privacy protections conceived long ago? Some jurists would say Congress has to make specific new laws to cover anything that is not within the original meaning of the original document as understood by the original legislators. Justice Antonin Scalia, for example, maintained that the death penalty was legal simply because at the time that the Eighth Amendment was passed, execution was considered neither cruel nor unusual. Originalists tend not to want to go beyond the meaning of the founding fathers unless Congress writes specific laws to expand that original meaning. That’s what’s at issue at the more conservative end of constitutional jurisprudence.

At the more liberal end, theories of reading tend to be looser, bending a bit to allow what the original spirit of the law was meant to cover. It asks what the authors or enactors of particular laws would or should have done had they been confronted with this contemporary issue or that new situation. (As in: Is or is not this new-fangled telegraph machine akin to delivering messages via a high-speed pony express?) Their allowance for situational ethics—i.e., interpreting a law contingent upon the service of justice—is what is generally called liberal.

But while what I have just described is exclusively about juridical modes of interpretation and construction, these semantic leanings also largely reflect and overlap with the political world views that divide Republicans and Democrats. As a very general matter, Republicans tend to advocate orthodoxies of “law and order” and strict penological enforcements like the death penalty that leave little room for context or forgiveness or changed values.

By the same token and again as a general matter, Democrats have, at least in recent history, been more associated with more capacious or inclusive meanings that expand notions of polity and citizenship beyond the category of the “white male property holders” who were the original and only enfranchised citizens allowed by the original Constitution.

Thus, while judicial ideology and political parties are technically separate realms, there is a literal-versus-connotative, right-versus-left thread that is strong and predictive, whether in the juridical or political realm.

What’s at stake right now is that Brett Kavanaugh, the man our president has just nominated to the highest court in the land, isn’t a mid-range “conservative” in the tradition of Anthony Kennedy; rather he’s an originalist, of the Clarence Thomas and Antonin Scalia sort. And if the executive, in nominating and endorsing originalism, joins power with a newly configured Supreme Court of committed literalists—i.e., an insuperable majority of ultraorthodox—and if this new alignment really proceeds to take the Constitution back in time, it means that Congress is going to have to pass new laws to explicitly keep in place our civil rights and social reforms, particularly when it comes to race, gender, sexuality, labor, public accommodation, immigration, and equal protection. I simply do not see a Republican-dominated Congress prepared to step up to that plate.

It is not only the much-discussed right to abortion that is at issue. We are going to see many, many important measures—regarding the rights of the poor, of the working class, of women, of children, of LGBTQ, of the environment, of whoever is currently deemed nonwhite—struck down by the high court. And I fear there will be insufficient political will to bring those measures back to life through legislation.

All of that said, what’s most troubling about Donald Trump’s nomination of Judge Kavanaugh is not what I have described thus far. Rather, this particular nominee has publicly stated that he thinks a president should not be prosecuted either civilly or criminally. That doesn’t accord with any judicial or political philosophy I’m familiar with. It’s terrifying. Kavanaugh seems to endorse a more-Nixonian-than-Nixon theory of absolute executive power. Such a proposition was not really taken seriously when Nixon attempted to raise it during the time of Watergate. Yet now it seems entirely possible that this theory could become reality if Trump were to assert it, for any such a claim of immunity would undoubtedly have to go before the Supreme Court, whose tremulous balance would be weighted irretrievably toward not just conservative jurists but originalists. (Not all of this is Trump’s magic either: The court’s looming ultraconservative majority has been the decades-long work of political operatives and organizations like the Federalist Society.)

In sum, it is very sinister that no matter what the Mueller investigation may find about criminal activities before or during this presidency, our Supreme Court might have sufficient power to say it simply doesn’t matter.

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Blood, Soil, and Sorrow: The Intergenerational Trauma of Family Separation

by Patricia J. Williams

As recently as last year, Republican Congressman Steve King was considered an outlier when he opined that “we can’t restore our civilization with someone else’s babies.” Now the Trump administration has endorsed this politics of blood and soil, full bore.

“They’re not innocent,” says our president of children torn from their parents at the border. “These aren’t people” is how he describes adolescents about whom he knows nothing but their nationality. Immigrants “are animals, and we’re taking them out of the country at a level and a rate that’s never happened before,” Trump adds. Their children will be put in “foster care or whatever,” according to the White House chief of staff, Gen. John Kelly.

Those children may come from abroad, but they are our babies. They represent the legacy of American policies that go back decades. After all, it was the United States that financed the infamous US Army School of the Americas and trained genocidal warlords, such as Efraín Ríos Montt, who went on to destabilize all of Central America. If countries like Guatemala and Honduras have fallen into chaos since the 1980s, it’s partly because those wars took a toll on their social structures: the trauma of families wiped out and entire villages disappeared. The refugees at our southern border are part of the blowback from the displacement of hundreds of thousands of people still seeking safety from US-financed violence.

War is one way to kill children; putting them in concentration camps is another. “Casa Padre” is where some of these children have been taken. Once a Walmart in Brownsville, Texas, the building has been converted to house nearly 1,500 boys under the age of 18. In the hallway is a huge graffito of Donald Trump’s head, oddly disembodied, looming larger than a minuscule image of the White House, above which he floats, godlike, in the sky. The mural includes a quote from The Art of the Deal: “Sometimes by losing a battle you find a new way to win the war.”  Such a bizarre civics lesson–the very name:  Casa Padre. The daddy-state as superstore….

Attorney General Jefferson Beauregard Sessions III has tried to wrap this barbarity in the sheep’s clothing of not just law but God’s law, invoking the Pauline Epistle of Romans 13. Sessions, whose very name summons two of the most notorious slaveholders of the Confederacy, uses a feint common in the antebellum South: It is God’s law, divine will, the “natural” order of things—not a policy dreamed up by President Trump and enacted at his command—that compels US government agents to treat immigrants like inventory.

Over decades, slavery hardened Americans to the tears, pleas, terror, and grief of a trade that put human beings on the auction block, took babies from their mothers and sold them to strangers. That system relied on rationalizations we encounter still: Certain classes of human beings are not “really” human; they do not feel pain to the same degree as “more civilized” classes; these “others” are incorrigibly predisposed to prevarication (or “acting,” as Ann Coulter recently dismissed the images of bereft toddlers). Above all, “they” are always kept at a distance. This “they”-making obliterates due process, equal protection, and individual justice. It justifies racial and ethnic profiling, as was done when rationalizing internment of Japanese Americans; indeed, Donald Trump has said repeatedly he thinks it’s “common sense” to punish in the plural.[1] “Go after the families,” he has said of those he deems terrorists, thus rendering extended communities of innocents mere instruments of vengeance.

We fail to recall America’s dark history at our peril. After the Civil War, juvenile-reform policies encouraged the removal of children from people deemed unfit, “feeble-minded,” “promiscuous,” or epileptic. These parents were disproportionately Irish immigrants, people of color, or unmarried women. During the first part of the 20th century, policy-makers championed not only the removal of “defective” black children from their equally “defective” parents, but also the confinement of those children in adult prisons. The rampant sadness and alcoholism that plagues American Indian reservations is related to the thousands of children who were removed from the care of their parents, who lost their mother tongues, and who were boarded at schools that “Christianized” them with neglect, beatings and sexual abuse.  Until recently, states sterilized thousands of women—and some men—for reasons that included ridding their tax rolls of the undeserving poor. Today, our government has grown indifferent to the cruelties of the so-called school-to-prison pipeline, arresting kindergartners and routinely sentencing very young teenagers as adults.

The legacies of these policies are all around us. Still, our government argues that the deliberate separation of parents and children will serve as a disincentive to others seeking to cross the border. That alone is a crime against humanity. The United States is the only member of the United Nations that has not ratified the Convention on the Rights of the Child—a text worth reading for anyone who wonders why the world has condemned the Trump administration in recent weeks. Moreover, the construction of detention camps has been outsourced to profiteers who have snatched babies away so carelessly that their identities have been lost in the shuffle.

We know that children subjected to this kind of trauma suffer catastrophic damage to the very architecture of their brains. Children who were abandoned in Romanian orphanages, for example, were found to have grown up with less cerebral white and gray matter than their peers raised by parents. Or look at our own foster-care system: It is deeply scarring, even when children are separated from their families to protect them from danger. Forty to 50 percent of children who age out of foster care become homeless within 18 months. And fully half of the nation’s homeless population were foster children at some point.

We understand all of these things, and yet we are not supposed to scrutinize this manufactured tragedy as it unfolds. The camps are off-limits to the public. Even members of Congress have been denied entry without two weeks’ notice—and the locations of many of the detention centers have been withheld, making them hard to inspect or hold accountable. We go about our daily business, not looking because we do not want to know. We pass the abandoned Walmart, this parking lot for disposable despair, this factory for future fury. And we quarantine this all-American banality of evil as the problem of “someone else’s babies,” whose torture we disown.

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A Q&A With Law Professor Katherine Franke

by Patricia J. Williams

On March 6, 2017, the Israeli Knesset, by a vote of 46 to 28, passed a law banning entry to all foreign nationals “if he or she, or the organization or the body for which he or she operates, has knowingly published a public call to engage in a boycott against the State of Israel or has made a commitment to participate in such a boycott.” The law has stirred worry, both within Israel and without, for its seeming compression of the idea of supporting boycotts as political speech or intellectual expression, and the idea of boycotts as security threat. That much is the subject of healthy debate among Israeli citizens, in universities, newspapers, as well as in the Knesset.

For noncitizens of Israel, however, the debate about boycotts and divestment has carried a different toll: Since the law’s passage, a variety of foreign individuals, NGOs, and other organizations have been banned or deported from the country, including the American Friends Service Committee. One such banning that sparked particular international concern was the detention and deportation of Columbia Law School professor Katherine Franke. I should disclose that I am also a Columbia Law professor and therefore a colleague of Franke’s. I interviewed her recently; the following is an edited transcript of the conversation. 

Patricia J. Williams

Patricia J. Williams: What happened?

Katherine Franke: I was traveling to Israel and the West Bank as part of a 20-member delegation of civil-rights leaders from the United States. When we landed in Tel Aviv on the morning of April 29, 2018, four members of the delegation, including me, were detained, interrogated, and then deported. [The rest of the delegates exited the airport without issue and proceeded to Jerusalem to start the trip.] I was told that I would be banned from entering the country—one person said it was for life, another for five years. The deportation order I received did not clarify this.

PW: What was the purpose of your trip?

KF: First, I am the chair of the Board of Trustees of the Center for Constitutional Rights, and CCR had organized the delegation. The group included lawyers and activists working on Native American resistance to the Dakota Access Pipeline; advocates fighting police violence in Ferguson; human-rights defenders in Puerto Rico; lawyers challenging the Muslim ban in the US; and the cochair of the Women’s March. We had scheduled visits with civil-rights advocates and others in Israel and in the West Bank.

Secondly, I was traveling in my capacity as Columbia faculty, to meet with two graduate students whose dissertations I am supervising. One is an Israeli citizen living in Haifa. The other is a Palestinian human-rights advocate in Ramallah who cannot get a permit from the Israelis to exit the West Bank. The only way for us to meet in person is for me to travel to Ramallah.

I had also scheduled a meeting with a scholar in Ramallah to discuss a possible collaboration between several law schools in the West Bank and Columbia for a joint human-rights masters program. Further, I had scheduled meetings with colleagues at Adalah, an NGO in Israel with whom the Center for Palestine Studies has been collaborating for several years as part of our Palestine and Law program. We had planned to discuss programming for the next academic year.

PW: Did that activity constitute the stated basis for your deportation?

KF: I was not given the opportunity to tell the immigration officer who detained me about the purpose of my trip as I just described it, because he was convinced that I was traveling to the region to promote the Boycott-Divest-Sanctions (BDS) movement. I told him I have been to Israel a half-dozen or so times, the first time in 2000 and most recently last October. All of those visits had been for work-related purposes. Several years ago I was hired by the EU to do capacity building for the Women’s Committee of the Palestinian Bar Association. Last October I was invited by Adalah to speak about academic freedom at a Palestinian Law Students conference in Bethlehem.

After I told him this trip was a mix of work and tourism the interrogation took a more hostile turn: He yelled at me: “You’re here to promote BDS in Palestine, aren’t you?” I responded that I was absolutely not. He yelled again: “You’re lying!” He then asked me if I volunteered with any groups in the US. I wasn’t sure what he was getting at, so I said I volunteer with many groups, including CCR. Then he barked: “You work for JVP, don’t you?” I said I did not work for JVP, which is true. “You’re making my job easy, you’re lying to me,” he said, at which point he showed me his cell phone, displaying what I believe was Canary Mission’s page on me. This went on for over an hour.

PW: JVP?

KF: JVP, Jewish Voice for Peace is a nonprofit membership organization based in the US that advocates for justice and peace in Israel/Palestine. JVP has institutionally endorsed the call for boycott, divestment, and sanctions against Israel (BDS). The BDS call came from civil-society groups in Palestine in 2005 as a way to engage the international community in their struggle for justice, borrowing a tactic that had been used by anti-apartheid activists in South Africa. The call asks the international community to boycott the state of Israel, divest from investments in all Israeli companies and from international companies involved in violating Palestinian rights, and that states impose sanctions on Israel until it comes into compliance with human-rights laws and norms.

The BDS movement has three primary goals: (1) ending the Israeli occupation of Palestinian land in the West Bank, Gaza, the Golan Heights, and East Jerusalem; (2) securing the rights of Palestinians living in Israel to full equality, and (3) recognizing the right of Palestinian refugees living across the globe to return their 1948 homes and properties as stipulated by UN Security Council Resolution 194. Prominent supporters of and organizations that have participated in BDS in the past include Archbishop Desmond Tutu, Angela Davis, Alice Walker, Stephen Hawking, Naomi Klein, Black Lives Matter, Dream Defenders, United Electrical, Radio and Machine Workers, Connecticut AFL-CIO, the Presbyterian Church USA, the United Church of Christ, the United Methodist Church, and several Quaker bodies.

Several years ago I served on the executive committee of JVP’s Academic Advisory Council, which has since been dissolved. I am not a member of JVP, but do work closely with them on issues of academic freedom, defense of free-speech rights, and other issues on an ad hoc basis. I am also a donor to JVP. None of this do I consider to amount to my being a “leader of JVP” or holding a “prominent role” with them. That said, even if I were a leader of JVP I would object to being banned from entering Israel on account of my political views or that of JVP.

USACBI is a related campaign calling for the Academic and Cultural Boycott of Israel. It asks academics and cultural workers to boycott any event or activity that is funded in whole or part by the Israeli government. Over 1,400 academics, myself included, and nearly 500 cultural workers have endorsed the academic and cultural boycott. This means that I will not participate in a conference funded by the Israeli government, for instance, but I do collaborate with Israeli academics and supervise dissertations of Israeli graduate students. I have not endorsed a boycott of all of Israel or all Israelis, but rather only the current Israeli government because of its human-rights record.

Nevertheless, when journalists have asked the Israeli interior minister about why I was deported the answer was: I am a prominent supporter of BDS and/or a leader of JVP.

PW: And what is Canary Mission, the site whose page you said that the immigration officers had on his cell phone?

KF: Canary Mission is one of a number of sites—AMCHA is another—that track thousands of academics and students in the United States and labels them anti-Semites based solely on their critique of Israeli government policies or their support of Palestinian rights.

PW: This is an official government site?

KF: We don’t actually know who is behind Canary Mission; the site is run anonymously.

PW: That sounds as though it may present problems of procedural fairness, if a private or anonymously sourced list of names becomes the metric for passing through a legal checkpoint.

KF: The current Israeli government seems to have outsourced the determination of who is an enemy of the state to unaccountable online entities and rumor mills, with no procedural mechanisms to counter hearsay or trolling. The individual gatekeepers—the border guards and airport security agents deciding who may enter Israel—seem to rely to some considerable degree on such sites.

PW: In recent years, universities—in Israel as well as the US—have become the sites of our most relentless head-butting about the possibilities and fears of censorship. Do you think the Law Against Damage to Israel Through Boycott poses a real-world test of those principles?

KF: It is a concern shared across boundaries, especially in Israel and Palestine. A core value of democracy is protection of academic freedom and the rights of political dissenters. Eighty Israeli law professors, representing all 13 law schools in Israel, have signed a letter protesting my deportation, stating: “Preventing a scholar from entering the country due to criticism the scholar emitted is an anti-democratic act that undermines freedom of expression and academic freedom.” Jewish law professors in the US have circulated a letter as well and a similar statement was issued by nearly 100 Jewish-studies scholars,

What is more, citizens of Israel are harmed by the denial of entry to critics of the government, denied the opportunity to meet with allies from abroad. Part of the purpose of our delegation was to meet face-to-face with human-rights defenders in Israel and Palestine in an effort to build bridges and strategies across movements.

Of equal importance is the fact that entry to Palestine is controlled entirely by the Israeli government. When scholars and advocates such as myself are banned entry into Israel, we are also effectively banned entry into Palestine, and the airport becomes nothing more than a checkpoint, a key instrument in Israel’s illegal occupation of Palestine. Thus, we cannot meet with colleagues at universities in the West Bank, such as Birzeit University outside Ramallah, Al-Quds University in East Jerusalem, or An-Najah National University in Nablus. This is particularly problematic since residents of the West Bank cannot leave without being issued a permit from the Israelis, something that is very difficult to obtain. They are already systematically restricted in their ability to attend conferences and other academic gatherings in Europe, the US and elsewhere. Our ability to travel to the West Bank is essential to Palestinian academics’ ability to engage a global community of scholars.

Finally, it is essential that scholars and human-rights activists be able to document conditions in Israel and Palestine, and to monitor the state of human-rights compliance or noncompliance. By denying entry to its critics, Israel has essentially walled itself off from international accountability to human-rights monitoring. It is right to denounce the Egyptian and Russian governments when they refuse access to human-rights inspectors, and so too we should criticize Israel when it deploys similar measures.

PW: How Israel might patrol, protect, or occupy the vast penumbral range of its borders—particularly in Gaza or the West Bank—surely raises issues of international law. Yet why is it that American academics should expect protection of the constitutional traditions of First Amendment speech and academic freedom when seeking admission to another country?

KF: While these values are embedded in our Constitution, they are not exclusive to it. Such notions reflect very basic aspects of human freedom. Free speech, liberty of movement, collective study, and exchange of ideas—these are essential to the very idea of democratic self-government and human flourishing, and are protected under international law regardless of the context. Banning the movement of scholars based on their research or political speech violates fundamental principles on which the legitimacy of any government stands.

PW: My final question: Could you say just a word about the similarity between Israel’s anti-boycott law and the growing movement to pass nearly identical laws here in the US, at both state and federal levels?

KF: As the BDS movement has gained momentum internationally, measures in the US to punish its supporters have been introduced in legislatures across the country. Since 2014, more than 100 anti-BDS measures have been introduced in state and local legislatures across the country. At least 24 states have enacted anti-BDS laws. These laws take different forms, but many of them, such as an executive order issued by New York Governor Andrew Cuomo and a law passed by the Arizona legislature in 2016, bar any business or organization that supports the boycott of Israel from bidding on public contracts and requires the state to publicize a blacklist of their names. So, for instance, the Presbyterian Church would be blacklisted and prohibited from running homeless shelters with public money because of its decision to divest from companies involved in the demolition of Palestinian homes. These laws treat constitutionally protected political activism as a form of treason. A federal judge in Kansas recently blocked enforcement of an anti-boycott law in a case brought by a public-school math coach who cannot take part in a state program to train other teachers because she refuses to sign an anti-boycott certification.

Almost every social movement has at some point deployed boycotts as a tactic to advance its political goals, along with demonstrations, picketing, strikes, sit-ins, and other forms of direct action. Yet the ardent defenders of Israel portray boycotts as a kind of hateful, dirty trick—an ironic position to take given that American Jews convinced the World Jewish Congress to call for a boycott of German goods in 1936. And when the Supreme Court considered the constitutionality of black citizens’ boycott of racist businesses in Mississippi in the 1960s, the American Jewish Congress submitted a friend-of-the-court brief coauthored by Nathan Dershowitz [Alan’s brother] arguing that “politically motivated economic boycotts have a long and honored history in America,” and that boycotts “are forms of expression undoubtedly protected by the First Amendment.”

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Nation Radio: The Legacy of Lynching

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