Today is Martin Luther King Jr. Day, a day to honor the life and the thought of Dr. King — a hagiographed, ignored, misunderstood, overrated, and indispensable man; one of our greatest Southern heroes; an agitator and a moral witness who gave long years of his life to the cause of the Freedom Movement, and who — underneath the television specials and the holy martyr imagery that so often serves to obscure and empty out his real, fallible, challenging, essential vision — played a vital role (together with Ella Baker, Fannie Lou Hamer, Rosa Parks, and countless others) in changing the world for the better, within living memory. If he were not taken from us, Dr. King would have celebrated his 77th birthday yesterday.

Most of what I want to say today, I said last year, in GT 2005-01-17: MLK Monday. So, instead of repeating myself, I link; and having linked, I step aside for the man himself.

I have been so greatly disappointed with the white church and its leadership. … I say it as a minister of the gospel, who loves the church; who was nurtured in its bosom; who has been sustained by its spiritual blessings and who will remain true to it as long as the cord of life shall lengthen. … In spite of my shattered dreams of the past, I came to Birmingham with the hope that the white religious leadership of this community would see the justice of our cause, and with deep moral concern, serve as the channel through which our just grievances would get to the power structure. I had hoped that each of you would understand. But again I have been disappointed. I have heard numerous religious leaders of the South call upon their worshippers to comply with a desegregation decision because it is the law, but I have longed to hear white ministers say, follow this decree because integration is morally right and the Negro is your brother. In the midst of blatant injustices inflicted upon the Negro, I have watched white churches stand on the sideline and merely mouth pious irrelevancies and sanctimonious trivialities.

— Martin Luther King Jr., Letter from Birmingham Jail

And also:

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have never yet engaged in a direct action movement that was well timed, according to the timetable of those who have not suffered unduly from the disease of segregation. For years now I have heard the words Wait! It rings in the ear of every Negro with a piercing familiarity. This Wait has almost always meant Never. We must come to see with the distinguished jurist of yesterday that justice too long delayed is justice denied.

We have waited for more than three hundred and forty years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jet-like speed toward the goal of political independence, and we still creep at horse and buggy pace toward the gaining of a cup of coffee at a lunch counter. I guess it is easy for those who have never felt the stinging darts of segregation to say, Wait. But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick, brutalize and even kill your black brothers and sisters with impunity; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see the depressing clouds of inferiority begin to form in her little mental sky, and see her begin to distort her little personality by unconsciously developing a bitterness toward white people; when you have to concoct an answer for a five-year-old son asking in agonizing pathos: Daddy, why do white people treat colored people so mean?; when you take a cross-country drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading white and colored; when your first name becomes nigger, your middle name becomes boy (however old you are) and your last name becomes John, and your wife and mother are never given the respected title Mrs.; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tip-toe stance never quite knowing what to expect next, and plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of nobodiness; then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into an abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience.

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask: How can you advocate breaking some laws and obeying others? The answer is found in the fact that there are two types of laws: There are just and there are unjust laws. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with Saint Augustine that An unjust law is no law at all.

Now, what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of Saint Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority, and the segregated a false sense of inferiority. To use the words of Martin Buber, the Jewish philosopher, segregation substitutes and I-it relationship for an I-thou relationship, and ends up relegating persons to the status of things. So segregation is not only politically, economically and sociologically unsound, but it is morally wrong and sinful. Paul Tillich has said that sin is separation. Isn’t segregation an existential expression of man’s tragic separation, an expression of his awful estrangement, his terrible sinfulness? So I can urge men to disobey segregation ordinances because they are morally wrong.

…

I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the last few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in the stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate who is more devoted to order than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says I agree with you in the goal you seek, but I can’t agree with your methods of direct action; who paternalistically feels he can set the timetable for another man’s freedom; who lives by the myth of time and who constantly advises the Negro to wait until a more convenient season. Shallow understanding from people of goodwill is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice, and that when they fail to do this they become dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is merely a necessary phase of the transition from an obnoxious negative peace, where the Negro passively accepted his unjust plight, to a substance-filled positive peace, where all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open where it can be seen and dealt with. Like a boil that can never be cured as long as it is covered up but must be opened with all its pus-flowing ugliness to the natural medicines of air and light, injustice must likewise be exposed, with all of the tension its exposing creates, to the light of human conscience and the air of national opinion before it can be cured. …

… You spoke of our activity in Birmingham as extreme. At first I was rather disappointed that fellow clergymen would see my nonviolent efforts as those of the extremist. … But as I continued to think about the matter I gradually gained a bit of satisfaction from being considered an extremist. Was not Jesus an extremist for love — Love your enemies, bless them that curse you, pray for them that despitefully use you. Was not Amos an extremist for justice — Let justice roll down like waters and righteousness like a mighty stream. Was not Paul an extremist for the gospel of Jesus Christ — I bear in my body the marks of the Lord Jesus. Was not Martin Luther an extremist — Here I stand; I can do none other so help me God. Was not John Bunyan an extremist — I will stay in jail to the end of my days before I make a butchery of my conscience. Was not Abraham Lincoln an extremist — This nation cannot survive half slave and half free. Was not Thomas Jefferson an extremist — We hold these truths to be self-evident, that all men are created equal. So the question is not whether we will be extremist but what kind of extremist will we be. Will we be extremists for hate or will we be extremists for love? Will we be extremists for the preservation of injustice–or will we be extremists for the cause of justice? In that dramatic scene on Calvary’s hill, three men were crucified. We must not forget that all three were crucified for the same crime–the crime of extremism. Two were extremists for immorality, and thusly fell below their environment. The other, Jesus Christ, was an extremist for love, truth and goodness, and thereby rose above his environment. So, after all, maybe the South, the nation and the world are in dire need of creative extremists.

— Martin Luther King Jr., Letter from Birmingham Jail

Elsewhere

• GT 2005-01-17: MLK Monday: this is, as I mentioned, what I wrote last year. I still kind of like it.

• Austro-Athenian Empire 2006-01-15: Happy Actual Birthday: Roderick remembers King on just and unjust laws.

• Negro Please 2006-01-16: Repost in Honor of MLK, Jr. Day reposts his excellent tribute from two years ago

• Pseudo-Adrienne 2006-01-16: Remembering Him: Never forget them, never forget him, and never forget what he struggled and died for. The dream that we would live in a color blind society and there would be racial equality. How far have we come? Or was Dr. King’s dream unfortunately just that, a dream, and therefore– given America’s ugly history of perpetuating racism and even sexism and other forms of bigotry sanctioned by the law– too fanciful to achieve. Nonetheless, the man was on one of the twentieth century’s greatest orators and noble leaders, and symbols of justice, racial equality, and freedom.

• Chris Johanesen 2006-01-16: King’s Dream Still a Dream: Every Martin Luther King Jr day, whites all over the nation drag out King’s 1963 I Have a Dream, speech and pat themselves on the back about how far we’ve come as a just society. I suggest we try one of his other speeches for a change, Where Do We Go From Here?, from 1967: . . . I’m not saying we haven’t made progress since 1967–we surely have–but I would argue that we still have a very long way to go before we get anywhere near to realizing Dr. King’s dream.

• Black Looks 2006-01-16: Martin Luther King Day: a wonderful, meditative photo of King, and a pointer to further discussion: The legacy of Martin Luther King is discussed in this weeks Black Commentator. The promised land and why we are still waiting by Anthony Asadullah Samad.

• Echidne of the Snakes 2006-01-16: Messages from Martin Luther King remembers him through his words, including: Our lives begin to end the day we become silent about things that matter, and Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity.

• Ed Brayton, Positive Liberty 2006-01-16: Martin Luther King’s Dream: … I cannot listen to King’s I Have A Dream speech without getting goosebumps. It is one of the most inspirational speeches you will ever hear …, made more so in my view because of his invocation of the Declaration of Independence as a promissory note. … I can’t even read those words on a page without getting goosebumps. American history, as I have often said, is largely the story of perpetually extending the principles found in the Declaration to cover more and more people. It should have been enough 230 years ago to cover everyone, but change is slow and sometimes it takes a long time for the true implications of our stated principles to rise to the top. It rose through the bravery and sacrifice of Elizabeth Cady Stanton and Susan B. Anthony and so many others, through the bravery and sacrifice of Martin Luther King and Malcolm X and so many others, just as today it continues to rise through the efforts of millions of people to bring equality and liberty to so many gay Americans who are still denied the basic dignities that the rest of us take for granted. Let freedom ring, indeed.

• Dr. B’s Blog 2006-01-16: Lest you thought I forgot: The struggle continues!

• David T. Beito, Liberty and Power 2006-01-16: King, Marx, and Statism: Last January, I put up these statements from Martin Luther King, Jr. in his book, Stride Toward Freedom: The Montgomery Story published in 1957, but they are well worth repeating … This deprecation of individual freedom was objectionable to me. I am convinced now, as I was then, that man is an end because he is a child of God. Man is not made for the state; the state is made for man. To deprive man of freedom is to relegate him to the status of a thing, rather than elevate him to the status of a person. Man must never be treated as means to the end of the state; but always as an end within himself.

• to the barricades 2006-01-16: The speech that unfortunately never loses its relevance: Martin Luther King Jr, Beyond Vietnam.

• Christine C., PopPolitics.com 2006-01-16: Remembering MLK, in Words and Images: I’ve just returned from lunch with a former priest from Chicago who marched in Selma and Montgomery with Martin Luther King Jr. He vividly recalled the hoof marks embedded in the Capitol lawn from police horses brought in to scare the marchers. He spoke of receiving King’s blessing before kneeling on the first two steps of the Capitol in prayer — a prayer that had to be negotiated with police, as the group was prohibited from moving even one step higher (though one priest suggested they make a break for it and run to the top). Driving between Montgomery and Birmingham in a convertible with black and white priests, they were stopped at a highway roadblock. They were eventually let through, but the fear he felt that day is still evident, more than 40 years later.

• Fighting for a Lost Cause.net 2006-01-16: We’re still killing our prophets quotes Stephen Oates’s biography, telling the story of King’s final hours, memorial, and funeral.

• Frank Newport, Gallup Polls 2006-01-16: Martin Luther King Jr.: Revered More After Death Than Before offers some interesting statistics about how King was thought of at the time and how he is thought of today. You’ll also find some interesting statistical grist for the mill if you want to think about the politics of popular admiration. It also ought to remind you that, in the midst of all the very public demonstrations of affection for King from the white moderates and even the hard Right, how genuinely challenging and polarizing his struggle — against racism, and poverty, and imperial war — was. (And still is, when it is actually taken seriously.)

• Remember Segregation: a vivid memorial to Dr. King and the victims of segregation in the Jim Crow South

• Slate 2006-01-16: Zoom In: Celebrating Martin Luther King, a retrospective photo essay.

• Martin Luther King, Jr. Papers Project features printed volumes, electronic copies, and audio and video files of many of King’s essays, sermons and speeches.

Coda

It’s astonishing to realize that everything Dr. King was a part of, and everything he spoke out against, struggled against, and, in some tremendous cases, defeated, was happening while my parents were in college, just about 40 years ago. To think of what Dr. King’s efforts, and the efforts of the countless heroes–those whose names we know and the thousands of ordinary people who haven’t made it into the books or the teevee specials–have meant for the world in those few years. Yes, we are living through dark days, but think of what it was like just within our memory or the memory of our parents. As Dr. King put it: Let us remember that the arc of the Universe is long, but it bends toward justice.

I hope so. Happy MLK Day, y’all.

You know the rules. Here’s the quote. This is from Oliver Sacks’s Seeing Voices: A Journey into the World of the Deaf (1989). I broke the rules a bit here: rather than a single passage of a few paragraphs, I have two, because the latter one reinforces one of the important points of the former, and also because it’s damn near impossible to pick out any one thing that is the most interesting from the chapter. So here goes:

The situation of the prelingually deaf, prior to 1750, was indeed a calamity: unable to acquire speech, hence dumb or mute; unable to enjoy free communication with even their parents and families; confined to a few rudimentary signs and gestures; cut off, except in large cities, even from the community of their own kind; deprived of literacy and education, all knowledge of the world; forced to do the most menial work; living alone, often close to destitution; treated by the law and society as little better than imbeciles–the lot of the deaf was manifestly dreadful.

But what was manifest was as nothing to the destitution inside–the destitution of knowledge and thought that prelingual deafness could bring, in the absence of any communication or remedial measures. The deplorable state of the deaf aroused both the curiosity and the compassion of the philosophes. Thus the Abbé Sicard asked:

Why is the uneducated deaf person isolated in nature and unable to communicate with other men? Why is he reduced to this state of imbecility? Does his biological constitution differ from ours? Does he not have everything he needs for having sensations, acquiring ideas, and combining them to do everything that we do? Does he not get sensory impressions from objects as we do? Are these not, as with us, the occasion of the mind’s sensations and its acquired ideas? Why then does the deaf person remain stupid while we become intelligent?

To ask this question–never really clearly asked before–is to grasp its answer, to see that the answer lies in the use of symbols. It is, Sicard continues, because the deaf person has no symbols for fixing and combining ideas … that there is a total communication-gap between him and other people. But what was all-important, and had been a source of fundamental confusion since Aristotle’s pronouncements on the matter, was the enduring misconception that symbols had to be speech. Perhaps indeed this passionte misperception, or prejudice, went back to biblical days: the subhuman status of mutes was part of the Mosaic code, and it was reinforced by the biblical exaltation of voice and ear as the one and true way in which man and God could speak (In the beginning was the Word). And yet, overborne by Mosaic and Aristotelian thunderings, some profound voices intimated that this need not be so. Thus Socrates’ remark in the Cratylus of Plato, which so impressed the youthful Abbé de l’Epée:

If we had neither voice nor tongue, and yet wished to manifest things to one another, should we not, like those which are at present mute, endeavour to signify our meaning by the hands, head, and other parts of the body?

Or the deep, yet obvious, insights of the philosopher-physician Cardan in the sixteenth century:

It is possible to place a deaf-mute in a position to hear by reading, and to speak by writing … for as different sounds are conventionally used to signify different things, so also may the various figures of objects and words …. Written characters and ideas may be connected without the intervention of actual sounds.

In the sixteenth century the notion that the understanding of ideas did not depend upon the hearing of words was revolutionary.

But it is not (usually) the ideas of philosophers that change reality; nor, conversely, is it the practice of ordinary people. What changes history, what kindles revolutions, is the meeting of the two. A lofty mind–that of the Abbé de l’Epée–had to meet a humble usage–the indigenous sign language of the poor deaf who roamed Paris–in order to make possible a momentous transformation. If we ask why this meeting had not occurred before, it has something to do with the vocation of Abbé, who could not bear to think of the souls of the deaf-mute living and dying unshriven, deprived of the Catechism, the Scriptures, the Word of God; and it is partly owing to his humility–that he listened to the deaf–and partly to a philosophical and linguistic idea then very much in the air–that of universal language, like the speceium of which Leibniz dreamed. Thus, de l’Epée approached sign language not with contempt but with awe.

The universal language that your scholars have sought for in vain and of which they have despaired, is here; it is right before your eyes, it is the mimicry of the impoverished deaf. Because you do not know it,you hold it in contempt, yet it alone will provide you with the key to all languages.

That this was a misapprehension–for sign language is not a universal language in this grand sense, and Leibniz’s noble dream was probably a chimera–did not matter, was even an advantage. For what mattered was that the Abbé paid minute attention to his pupils, acquired their language (which had scarcely ever been done by the hearing before). And then, by associating signs with pictures and written words, he taught them to read; and with this, in one swoop, he opened to them the world’s learning and culture. De l’Epée’s system of methodical signs–a combination of their own Sign with signed French grammar–enabled deaf students to write down what was said to them through a signing interpreter, a method so successful that, for the first time, it enabled ordinary deaf pupils to read and write French, and thus acquire an education. His school, founded in 1755, was the first to achieve public support. He trained a multitude of teachers for the deaf, who, by the time of his death in 1789, had established twenty-one schools for the deaf in France and Europe. The future of de l’Epée’s own school seemed uncertain during the turmoil of the revolution, but by 1791 it had become the National Institution for Deaf-Mutes in Paris, headed by the brilliant grammarian Sicard. De l’Epée’s own book, as revolutionary as Copernicus’ in its own way, was first published in 1776.

De l’Epée’s book, a classic, is available in many languages. But what have not been available, have been virtually unknown, are the equally important (and, in some ways, even more fascinating) original writings of the deaf–the first deaf-mutes ever able to write. Harlan Lane and Franklin Philip have done a great service in making these so readily available to us in The Deaf Experience. Especially moving and important are the 1779 Observations of Pierre Desloges–the first book to be published by a deaf person–now available in English for the first time. Desloges himself, deafened at an early age, and virtually without speech, provides us first with a frightening description of the world, or unworld, of the languageless.

At the beginning of my infirmity, and for as long as I was living apart from other deaf people … I was unaware of sign language. I used only scattered, isolated, and unconnected signs. I did not know the art of combining them to form distinct pictures with which one can represent various ideas, transmit them to one’s peers, and converse in logical discourse.

Thus Desloges, though obviously a highly gifted man, could scarcely entertain ideas, or engage in logical discourse, until he had acquired sign language (which, as is usual with the deaf, he learned from someone deaf, in his case from an illiterate deaf-mute).

–Oliver Sacks (1989), Seeing Voices: A Journey into the World of the Deaf, pp. 13–18.

And:

When Laurent Clerc (a pupil of Massieu, himself a pupil of Sicard) came to the United States in 1816, he had an immediate and extraordinary impact, for American teachers up to this point had never been exposed to, never even imagined, a deaf-mute of impressive intelligence and education, had never imagined the possibilities dormant in the deaf. With Thomas Gallaudet, Clerc set up the American Asylum for the Deaf, in Hartford, in 1817. As Paris–teachers, philosophes, and public-at-large–was moved, amazed, converted by de l’Epée in the 1770s, so America was to be converted fifty years later.

The atmosphere at the Hartford Asylum, and at other schools soon to be set up, was marked by the sort of enthusiasm and excitement only seen at the start of grand intellectual and humanitarian adventures. The prompt and spectacular success of the Hartford Asylum soon led to the opening of other schools wherever there was sufficient density of population, and thus of deaf students. Virtually all the teachers of the deaf (nearly all of whom were fluent signers and many of whom were deaf) went to Hartford. The French sign system imported by Clerc rapidly amalgamated with the indigenous sign languages here–the deaf generate sign languages wherever there are communities of deaf people; it is for them the easiest and most natural form of communication–to form a uniquely expressive and powerful hybrid, American Sign Language (ASL). A special indigenous strength–presented convincingly by Nora Ellen Groce in her book, Everyone Here Spoke Sign Language–was the contribution of Martha’s Vineyard deaf to the development of ASL. A substantial minority of the population there suffered from a hereditary deafness, and most of the island had adopted an easy and powerful sign language. Virtually all the deaf of the Vineyard were sent to the Hartford Asylum in its formative years, where they contributed to the developing national language the unique strength of their own.

One has, indeed, a strong sense of pollination, of people coming to and fro, bringing regional languages, with all their idiosyncracies and strengths, to Hartford, and taking back an increasingly polished and generalized language. The rise of deaf literacy and deaf education was as spectacular in the United States as it had been in France, and soon spread to other parts of the world.

Lane estimates that by 1869 there were 550 teachers of the deaf worldwide and that 41 percent of the teachers of the deaf in the United States were themselves deaf. In 1864 Congress passed a law authorizing the Columbia Institution for the Deaf and the Blind in Washington to become a national deaf-mute college, the first institution of higher learning specifically for the deaf. Its first principal was Edward Gallaudet–the son of Thomas Gallaudet, who had brought Clerc to the United States in 1816. Gallaudet College, as it was later rechristened (it is now Gallaudet University), is still the only liberal arts college for deaf students in the world–though there are now several programs and institutes for the deaf associated with technical colleges. (The most famous of these is at the Rochester Institute of Technology, where there are more than 1,500 deaf students forming the National Technical Institute for the Deaf.)

The great impetus of deaf education and liberation, which had swept France between 1770 and 1820, thus continued its triumphant course in the United States until 1870 (Clerc, immensely active to the end and personally charismatic, died in 1869). And then–and this is the turning point in the entire story–the tide turned, turned against the use of Sign by and for the deaf, so that within twenty years the work of a century was undone.

Indeed, what was happening with the deaf and sign was part of a general (and if one wishes, political) movement of the time: a trend to Victorian oppressiveness and conformism, intolerance of minorities, and minority usages, of every kind–religious, linguistic, ethnic. Thus it was at this time that the little nations and little languages of the world (for example, Wales and Welsh) found themselves under pressure to assimilate and conform.

–Oliver Sacks (1989), Seeing Voices: A Journey into the World of the Deaf, pp. 21–24.

Most of this I heard on the radio yesterday evening. I add only (1) that there are no good reasons to care about constitutionality, but lots of good reasons to care about likely case law on the right of privacy, and (2) that it’s impossible to adequately convey such an oily, palavering voice in print.

DURBIN: The reason I asked you about those two cases is that neither of those cases referred to explicit language in the Constitution. Those cases were based on concepts of equality and liberty within our Constitution.

And the Griswold case took that concept of liberty and said it means privacy, though the word is not in our Constitution. And the Brown v. Board of Education took the concept of equality, equal protection, and said that means public education will not be segregated. …

Yesterday, when you were asked about one man, one vote, you clarified it. You said those were my views then, they’re not my views now.

When Senator Kohl asked you about the power and authority of elected branches as opposed to others, no; you said I want to clarify that’s not my view now.

And yet, when we have tried to press you on this critical statement that you made in that application, a statement which was made by you that said the Constitution does not protect a right to an abortion, you’ve been unwilling to distance yourself and to say that you disagree with that.

I think this is critically important, because as far as I am concerned, Judge Alito, we have to rely on the Supreme Court to protect our rights and freedom, especially our right to privacy. And for you to say that you’re for Griswold, you accept the constitutional basis for Griswold, but you can’t bring yourself to say there’s a constitutional basis for the right of a woman’s privacy when she is deciding — making a tragic, painful decision about continuing a pregnancy that may risk her health or her life, I’m troubled by that.

Why can you say unequivocally that you find constitutional support for Griswold, unequivocally you find constitutional support for Brown, but cannot bring yourself to say that you find constitutional support for a woman’s right to choose?

ALITO: Brown v. Board of Education, as you pointed out, is based on the equal protection clause of the 14th Amendment. And the 14th Amendment, of course, was adopted and ratified after the Civil War. It talks about equality. It talks about equal protection of the law.

And the principle that was finally recognized in Brown v. Board of Education, after nearly a century of misapplication of the 14th Amendment, is that denying people of a particular race the opportunity to attend schools or, for that matter, to make use of other public facilities that are open to people of a different race denies them equality. They’re not treated the same way — an African-American is not treated the same way as a black (sic) person when they’re treated that way, so they’re denied equality.

And that is based squarely on the language of the equal protection clause and the principle, the heart of the principle that was — the magnificent principle that emerged from this great struggle that is embodied in the equal protection clause.

Griswold concerned the marital right to privacy. And when the decision was handed down, it was written by Justice Douglas. And he based that on his theories of his theory of emanations and penumbras from various constitutional provisions: the Ninth Amendment and the Fourth Amendment and a variety of others.

But it has been understood in later cases, as based on the due process clause of the Fourteenth Amendment, which says that no persons shall be denied due process — shall be denied liberty without due process of law.

And that’s my understanding of it. And the issue that was involved in Griswold, the possession of contraceptives by married people, is not an issue that is likely to come before the courts again.

It’s not likely to come before the 3rd Circuit; it’s not likely to come before the Supreme Court. So, I feel an ability to comment — a greater ability to comment on that than I do on an issue that is involved in litigation.

What I have said about Roe is that if it were — if the issue were to come before me, if I’m confirmed and I’m on the Supreme Court and the issue comes up, the first step in the analysis for me would be the issue of stare decisis. And that would be very important.

The things that I said in the 1985 memo were a true expression of my views at the time from my vantage point as an attorney in the Solicitor General’s office. But that was 20 years ago and a great deal has happened in the case law since then.

Thornburg was decided and Webster and then Casey and a number of other decisions. So the stare decisis analysis would have to take account of that entire line of case law.

And then if I got beyond that, I would approach the question. And of course, in Casey, that was that was the beginning and the ending point of the analysis in the joint opinion.

If I were to get beyond that, I would approach that question the way I approach every legal issue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good decision-making.

— CQ Transcriptions (2006-01-11): U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito’s Nomination to the Supreme Court

Later the same day, from the other side of the aisle:

BROWNBACK: … Judge Alito, the Supreme Court has gotten a number of things wrong at times, too.

That would be correct. And the answer, when the court gets things wrong, is to overturn the case.

Is that — that’s the way it works, isn’t that correct?

ALITO: Well, when the court gets something wrong, and there’s a prior precedent, then you have to analyze the doctrine of stare decisis. It is an important doctrine, and I have said a lot about it…

BROWNBACK: Let me just ask you, is Plessy wrong, Plessy v. Ferguson?

ALITO: Plessy was certainly wrong.

BROWNBACK: OK. I mean, and you have gone through this.

Brown v. Board of Education, which is in my hometown of Topeka, Kansas — I was there last year at the dedication of the school house, 50 years ago — that overturned Plessy.

Plessy had stood on the books since 1896. I don’t know if you knew the number. And I’ve got a chart up here. It was depended upon by a number of people for a long period of time.

You’ve got it sitting on the books for 60 years, twice the length of time of Roe v. Wade. You’ve got these number of cases that considered Plessy and upheld Plessy to the dependency.

And yet Brown comes along, 1950s case, poor little girl has to walk by the all-white school to go to the black school in Topeka, Kansas. And the court looks at this and they say, unanimously, that’s just not right.

Now, stare decisis would say in the Brown case you should uphold Plessy. Is that correct?

ALITO: It was certainly — would be a factor that you would consider in determining whether to overrule it.

BROWNBACK: But obviously…

ALITO: Doctrine that would consider.

BROWNBACK: Obviously, Brown overturned it, and thank goodness it did. Correct?

ALITO: Certainly.

BROWNBACK: It overturned all these super-duper precedents that had been depended upon in this case, because the court got it wrong in Plessy.

BROWNBACK: Is that correct?

ALITO: The court certainly got it wrong in Plessy, and it got it spectacularly wrong in Plessy. And it took a long time for that erroneous decision to be overruled.

One of the things, I think, that people should have understood that separate facilities, even if they were absolutely equal in every respect, even if they were identical, could never give people equal treatment under the law.

BROWNBACK: They don’t.

ALITO: I think they should have recognized that.

But one of the things that was illustrated in those cases — and Sweatt v. Painter, the last one on the list, brought that out — was that, in fact, the facilities, the supposedly equal facilities, were never equal.

And the continuing series of litigation that was brought by the NAACP to challenge racial discrimination illustrated — if illustration was needed, the litigation illustrated that, in fact, the facilities that were supposedly equal were not equal.

And that was an important factor, I think, in leading to the decision in Brown v. Board of Education.

BROWNBACK: I want to give you another number, and that is that in over 200 other cases, the court has revisited and revised earlier judgments. In other words, in some portion or in all the cases, the court got it wrong in some 200 cases. And thank goodness the court’s willing to review various cases.

BROWNBACK: I want to give you an example of a couple, though, that the court hasn’t reviewed yet that I think are spectacularly wrong.

The 1927 case of Buck v. Bell; I don’t know if you’re familiar with that case. The court examined a Virginia statute that permitted the sterilization of the mentally impaired. Buck, a patient at the so-called Virginia State Colony for Epileptics and Feebleminded, was scheduled to be sterilized after doctors alleged that she was a genetic threat to the population due to her diminished mental capacity.

Buck’s guardian challenged the decision to have Carrie sterilized all the way to the Supreme Court, but in an 8-1 decision the court found that it was in the state’s interest to have her sterilized.

Majority opinion written by Justice Oliver Wendell Holmes said, We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetents.

Clearly, some precedents are undeserving of respect because they’re repugnant to the Constitution. Isn’t Plessy repugnant to the Constitution?

ALITO: It certainly was repugnant to the equal protection clause.

BROWNBACK: And the vision of human dignity.

Isn’t Buck and those sort of statements by Oliver Wendell Holmes repugnant to the Constitution?

ALITO: I think they are repugnant to the traditions of our country. I don’t think there’s any question about that.

— CQ Transcriptions (2006-01-11): U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito’s Nomination to the Supreme Court

A couple of months ago I elliptically grumbled about media coverage and analysis of the riots originating from French slums. Here’s an example of what I was on about, but from a positive angle. This is what I was talking about; this is what you should be doing.

A group of enterprising students at Swarthmore College, in Pennsylvania, has some advice for the politically disaffected: If you find the media’s Iraq coverage unsatisfactory, pick up the phone. Don’t call the Times, or CNN, or Rupert Murdoch; call Baghdad. There are a couple of Iraqi phone books available on the Internet, and plenty of interesting people willing to share their stories directly, from six thousand miles away, many of them speaking decent English. When your phone bill starts to get out of hand, try downloading Skype, software that allows two people to talk free, from anywhere in the world, using computer microphones and a headset.

Amelia Templeton, a senior history major, estimates that she has spoken with twenty-five Iraqis over the past year, and now, as she said the other day, it’s a bad idea to ask me about Iraq unless you plan on listening for a while. One of the Iraqis she spoke with, a painter named Esam Pasha, who is a grandson of the former Prime Minister Nuri al-Said, has even invited her to visit Baghdad. I was told that if I came he’d pick me up at the airport, she said. Given what that road is like, how dangerous it is going to and from the airport, that’s quite an offer.

Templeton is one of the editors at War News Radio, a weekly half-hour show broadcast on the Swarthmore campus station, and podcast over the Web, where it draws as many as three thousand listeners a day. The show’s stated aim is to rediscover the voices of real people in Iraq. …

The students began, two semesters ago, by creating a homemade sound studio, using bulletin boards and egg cartons hung from ceiling pipes. Now, thanks to the college, they’ve got proper acoustic tiling, although space heaters are still required to supplement the building’s old radiator, and the reporters sometimes wear ski jackets and hats while manning the phones. They have secured interviews, in recent weeks, with the C.E.O. of the new Iraqi Stock Exchange, an aspiring filmmaker in Baghdad, and the Sunni politician Adnan Pachachi. In one broadcast, an Iraqi doctor, referring to the mood at the checkpoints, said, Everybody feels terrified; everything around is horrible, and you expect that you may be killed at any minute. (His daughter had been shot, he said, by U.S. soldiers.)

…

We thought we were at a disadvantage not being on the ground in Iraq, Eva Barboni, a junior poli-sci major, said. But when you hear from reporters there that they can’t even leave their hotels you start to think. The sound quality afforded by Skype, it turns out, is often better than what can be achieved over the weak landlines in the Green Zone.

If you’re working for a big American network, with a film crew following you, you’re not going to get out on the streets in Baghdad, Wren Elhai, a sophomore, said. We can do a lot from here that the networks can’t do.

— Ben McGrath, The New Yorker (2005-12-19): Baghdad to Swarthmore

Is there any guarantee that by chatting up any Iraqi you happen to pick out of the phone book, you’ll get the straight story, the whole truth, or even comments that are especially interesting? No, of course not. Iraq is full of people, like any other country, and some of those people are liars, creeps, toadies, cranks, or anything else you could think of.

One drawback of the long-distance approach, of course, is that you can’t be sure whom you’re talking to. Templeton, while working on a segment about a typical Iraqi teen-ager, ended up speaking with a father she later came to suspect of being a Baath Party official. She killed the story. I thought maybe they weren’t the average, she said.

— Ben McGrath, The New Yorker (2005-12-19): Baghdad to Swarthmore

But, as I said before, There’s nothing wrong with addressing statements and then giving some reasons for taking them to be insincere or misleading. But it is totally irresponsible to make loud and confident declarations about why complete strangers are doing something when you haven’t so much as bothered to ask them or to find out what they’ve said on the matter.

The fact that so many words are daily so confidently poured forth about Iraq and Iraqis, by both amateur and professional blowhards who have not done something as simple as this, whose sole or primary sources of information are newsmedia outlets that march on through reportage while resolutely neglecting to do things as simple as this to make themselves less than ignorant about the conditions in Iraq or what ordinary Iraqis have to say about the concrete effects of the Great Powers’ policies on their own day-to-day lives, should tell you something not just about public debate in general, but also about the nature of the Iraq War and the continuing occupation in particular.

You can find information on, and broadcasts of, War News Radio at the War News Radio website.

Here’s a predictable pattern.

1. A new revelation is published or broadcast about a controversial new policy or by-product of the War on Terror. (Abu Ghraib/torture, extraordinary rendition, the outing of Valerie Plame, an alleged plan to attack Iran, secret propaganda in Iraq, FISA-free NSA surveillance of Americans, and so on.)
2. Some supporters of Washington’s foreign policy wonder whether the reporter or news organization or leaker who revealed the information might be guilty of aiding and abetting the enemy.
3. The media, Democrats, and anti-war activists are criticized for piling on, for ignoring worse crimes committed by the enemy, and for hysterically exaggerating the underlying issue.
4. Think-pieces are written about how this controversial or possibly illegal policy should actually be legalized and embraced.
5. Some self-described small-government conservatives and libertarians exasperatedly ask if critics of the policy understand that we’re at war, and explain how this latest kerfuffle illustrates why libertarians should never be invited to the grown-ups’ table when discussing foreign policy.

— Matt Welch, Hit and Run 2006-01-05

… to which we can add,

6) The critics respond with expressions of horror at the idea that some particular group of people could be treated that way — American citizens, in particular — without giving any grounds for regarding that group of people as morally or politically special.

As for myself, I’m tired of softball. So, come one, come all, and take the A Fortiori War Powers Quiz, Take One. Liberal hawks, liberal doves, progressives, leftists, anarchists, and pro- and anti-war libertarians are all invited to play. Previous respondents — Cathy Young, Bill at So Quoted, Anthony Gregory, Matt Welch, Blar, etc. etc. — are all especially invited to play. (You should note that unless you scored pretty high on Welch’s quiz, your answers to this one are unlikely to be all that interesting — the a fortiori will run from your answers to Welch’s questions toward your answers to mine, rather than vice versa. Don’t worry, surveillance hawks; the A Fortiori War Powers Quiz, Take Two will be coming in a few days, and will have more interesting diversions for you.)

Anyway, here’s how the quiz works. The unifying theme is How far is too far in the War on Terror? The question is a bit open-ended, so it helps to come down to brass tacks, with yes / no hypotheticals. First, take Welch’s quiz to get the first ten. The next thirteen are below. My answers to every one of them is No. What about yours?

1a) Should the National Security Agency or CIA have the ability to monitor foreign phone calls or e-mails without obtaining judicial approval?

1b) Should the National Security Agency or CIA have the ability to monitor domestic phone calls or e-mails with judicial approval?

1c) Should the National Security Agency or CIA have the ability to monitor foreign phone calls or e-mails with judicial approval?

2) Should the government have the ability to hold a citizen of a foreign country without charge, indefinitely, without access to a lawyer, if he is believed to be part of a terrorist cell?

3) Can you imagine a situation in which the government would be justified in waterboarding a citizen of a foreign country?

4) Are there foreign journalists who should be investigated for possible treason or other crimes against the United States? Should Sedition laws be re-introduced?

5) Should the CIA be able to legally assassinate people in countries with which the U.S. is at war?

6) Should any cops (whether concerned with terrorism or not) be given every single law-enforcement tool currently available in non-terrorist cases?

7a) Should law enforcement be able to seize the property of a suspected (though not charged) foreign terrorist, and then sell it?

7b) Should law enforcement be able to seize the property of a charged (though not convicted) American terrorist, and then sell it?

7c) Should law enforcement be able to seize the property of a charged (though not convicted) foreign terrorist, and then sell it?

7d) Should law enforcement be able to seize the property of a convicted American terrorist, and then sell it?

7e) Should law enforcement be able to seize the property of a convicted foreign terrorist, and then sell it?

Now compare and contrast with your answers to these questions with the analogous questions from Matt Welch’s quiz. Are they the same or different? If they different, what, if anything justifies the difference in your answers?

I, too, would love to know.