Prominent Historians and New York Times Official’s Comments About The 1619 Project    

As explained in a prior post, in August 2019, the New York Times Magazine published what it called “The 1619 Project” to commemorate the 400th anniversary of the first slaves brought to the British Colonies in North America and to “reframe American  history by considering . . . 1619 as our nation’s birth year . . . when a ship arrived . . . in the British colony of Virginia, bearing a cargo of 20 to 30 enslaved Africans [and inaugurating] a barbaric system of chattel slavery that would last for the next 250 years. . . . Out of slavery—and the anti-black racism it required—grew nearly everything that has truly made America exceptional.” It also claimed, “One of the primary reasons the colonists decided to declare their independence from Britain was because they wanted to protect the institution of slavery.”[1]

Historians’ Letter to Times[2]

Sean Wilentz (the George Henry Davis 1886 professor of American history, Princeton University) and four other prominent American historians[3] in a letter to the New York Times Magazine applauded “all efforts to address the enduring centrality of slavery and racism in our history” while saying The 1619 Project raised “profound, unsettling questions about slavery and the nation’s past and present” and was “a praiseworthy and urgent public service.”

Nevertheless, these historians expressed “strong reservations about important aspects” of the Project, including its intent “to offer a new version of American history in which slavery and white supremacy become the dominant organizing themes.”

These historians also were “dismayed at some of the factual errors in the project and the closed processes behind it.” Moreover, they asserted, “these errors, which concern major events, cannot be described as interpretation or ‘framing.’ They are matters of verifiable fact, which are the foundation of both honest scholarship and honest journalism. They suggest a displacement of historical understanding by ideology.”

This critique continued. “On the American Revolution, pivotal to any account of our history, the project asserts that the founders declared the colonies’ independence of Britain ‘in order to ensure slavery would continue.’ This is not true. If supportable, the allegation would be astounding — yet every statement offered by the project to validate it is false. Some of the other material in the project is distorted, including the claim that “for the most part, black Americans have fought their freedom struggles ‘alone.’”

“Still other material [in the Project] is misleading. The project criticizes Abraham Lincoln’s views on racial equality but ignores his conviction that the Declaration of Independence proclaimed universal equality, for blacks as well as whites, a view he upheld repeatedly against powerful white supremacists who opposed him. The project also ignores Lincoln’s agreement with Frederick Douglass that the Constitution was, in Douglass’s words, ‘a GLORIOUS LIBERTY DOCUMENT.’ Instead, the project asserts that the United States was founded on racial slavery, an argument rejected by a majority of abolitionists . . . [while being] proclaimed by champions of slavery like John C. Calhoun.”

“The 1619 Project has not been presented as the views of individual writers — views that in some cases, as on the supposed direct connections between slavery and modern corporate practices, have so far failed to establish any empirical veracity or reliability and have been seriously challenged by other historians. Instead, the project is offered as an authoritative account that bears the imprimatur and credibility of The New York Times. Those connected with the project have assured the public that its materials were shaped by a panel of historians and have been scrupulously fact-checked. Yet the process remains opaque. The names of only some of the historians involved have been released, and the extent of their involvement as ‘consultants’ and fact checkers remains vague. The selective transparency deepens our concern.”

“We ask that The Times, according to its own high standards of accuracy and truth, issue prominent corrections of all the errors and distortions presented in The 1619 Project. We also ask for the removal of these mistakes from any materials destined for use in schools, as well as in all further publications, including books bearing the name of The New York Times. We ask finally that The Times reveal fully the process through which the historical materials were and continue to be assembled, checked and authenticated.”

Response by the Magazine’s Editor-in-Chief[4]

Jake Silverstein, Editor in Chief of the Magazine, disagreed “with . . .  [these historians’] claim that our project contains significant factual errors and is driven by ideology rather than historical understanding. While we welcome criticism, we don’t believe that the request for corrections to The 1619 Project is warranted.”

“The project was intended to address the marginalization of African-American history in the telling of our national story and examine the legacy of slavery in contemporary American life.” In so doing, the Times “consulted with numerous scholars of African-American history and related fields” plus independent research by the authors of the articles in the Project and more consultation with “subject-area experts.” In addition, “as the five letter-writers well know, there are often debates, even among subject-area experts, about how to see the past.”

For example, other historians support “the contention that uneasiness among slaveholders in the colonies about growing antislavery sentiment in Britain and increasing imperial regulation helped motivate the [American] Revolution.” One main reason for this uneasiness was the 1772 decision of the British high court that slavery was unlawful because it was not supported by English common law. Although this case “did not legally threaten slavery in the colonies,” it along with the 1775 Dunmore Proclamation by the colonial governor of Virginia offering freedom to any enslaved person who fled and joined the British Army were major reasons for slave owners to support the Revolution.

The Times believes that it is important to have a wide-ranging discussion of the many issues around slavery and its continuing impact on America, involving “academics with differing perspectives,” and the Times will be pursuing such discussions.

Conclusion

We now have two recent articles about slavery and antislavery forces involved in creating the U.S. Constitution and Government by Sean Wilentz, who was one of the five historians who wrote the above letter about The 1619 Project.[5] They provide some of the historians’ reasons for their criticism of The Project.

Foremost was Wilentz’ assertion that although slavery is important, if not central, to American history, the United States was defined, from the start, neither by American slavery alone or by American antislavery but in their conflict” and “few things if any in modern history were more unexpected than the eradication of human bondage in the Atlantic world.”

Wilentz focuses on the Constitutional Convention of 1787 and the conflicts between the small states and big states, between the states-rights proponents and the strong national government supporters and between the slavery and anti-slavery advocates and the resulting necessity for compromises prompted by their mutual belief that all of the colonies needed to be in one national government under a Constitution that was endorsed by the Convention for submittal to the states for ratification.

Some of those compromises favored the slave-holding states: no abolition of slavery in the document and an implicit bar on the new national government’s direct interference with slavery where it already existed; counting 3/5th of the slaves for representation in the House of Representative and Electoral College; a fugitive slave clause; and prevention of abolition of foreign slave trade until 1808.

Other compromises favored the anti-slavery forces: refusal to recognize slavery in national law; the national power to regulate or ban slavery in territories under national purview; and the right to ban foreign slave trade after 1808.

The Project, however, focuses in part on the causes for the Revolutionary War of 1775-83 and its claim “that one of the primary reasons the colonists decided to declare their independence from Britain was because they wanted to protect the institution of slavery.” Wilentz flatly says this is “simply untrue. Neither the British government nor the British people were ‘deeply conflicted’ over slavery” in this period. Yes, a British court in 1772 did hold slavery illegal in Britain, but this decision did not affect many slaves in that country and had no effect on the country’s foreign slave trade.[6]

The arguments of Wilentz are persuasive, but The 1619 Project should continue by encouraging scholarly and citizen debate over slavery and racism in the U.S.

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[1] Evaluation of the Report of the U.S. Commission on Unalienable Rights and Its Endorsement by Secretary Pompeo, dwkcommentaries.com (Aug. 3, 2020).

[2] Bynum, McPherson, Oakes, Wilentz & Wood, We Respond to the Historians Who Critiqued The 1619 Project, N.Y. Times Magazine (Dec. 29, 2019; updated Jan. 4, 2020).

[3] The other authors of the letter were Victoria Bynum, distinguished emerita professor of history, Texas State University; James M. McPherson, George Henry Davis 1886 emeritus professor of American history, Princeton University; James Oakes, distinguished professor, the Graduate Center, the City University of New York; and Gordon S. Wood, Alva O. Wade University emeritus professor and emeritus professor of history, Brown University.

[4] Editor’s Response, N.Y. Times Magazine (Dec. 29, 2019).

[5] See Historian Wilentz’ Response to Senator Tom Cotton on the Issue of Slavery, dwkcommentaries.com (Aug. 11, 2020).

[6] Wilentz, American Slavery and ‘the Relentless Unforeseen,’ N.Y. Review of Books (Nov. 19, 2019).

 

Historian Wilentz’ Response to Senator Tom Cotton on the Issue of Slavery 

U.S. Senator Tom Cotton (Rep., AR) recently has been criticizing The 1619 Project ‘of the New York Times. The Project, he said, was “a racially divisive, revisionist account . . . that denies the noble principles of freedom and equality on which the nation was founded” although slavery “was the necessary evil upon which the union was built.”[1] The latter comment was made by the Senator in a recent interview by Tucker Carlson of FoxNews, in which Cotton claimed to draw support from prominent American historians, one of whom was Sean Wilentz of Princeton University.

Wilentz’ Response to Cotton[2]

Although four other American historians and I have “fundamental publicized objections to the project, . . . these in no way mitigate Cotton’s serious misrepresentations of the historical record for evident political gain.”

“Senator Tom Cotton, Republican of Arkansas, has introduced a bill in Congress that would punish school districts that use The New York Times’s 1619 Project in their curriculum by withholding federal funding. In so doing, he announced in a newspaper interview that America’s schoolchildren need to learn that the nation’s Founders said slavery ‘was the necessary evil upon which the union was built.’ His statement is as preposterous as it is false: presuming to clarify American history, Cotton has grievously distorted it.”

“None of the delegates who framed the Constitution in 1787 called slavery a ‘necessary evil.’ Some of them called slavery an evil, but not a necessary one. Gouverneur Morris of Pennsylvania, for example, declared to the Constitutional Convention that he would ‘never concur in upholding domestic slavery,’ that ‘nefarious institution’ based on ‘the most cruel bondages’—’the curse of heaven on the states where it prevailed.’ The great majority of the Framers joined Morris in fighting to ensure that slavery would be excluded from national law.”

“James Madison, the most influential delegate at the convention, explicitly repudiated the idea of building the union on slavery, stating that it would be ‘wrong to admit in the Constitution the idea that there could be property in men.’ Though himself a slaveholder, Madison wanted to guarantee that the Constitution, while it might tolerate slavery in the states where it existed, would neither enshrine human bondage in national law nor recognize it as legitimate.”

“A minority of the Framers, from the lower South, disagreed, but they believed slavery was no evil at all. ‘If slavery be wrong,’ Charles Pinckney of South Carolina declared, ‘it is justified by the example of all the world.’ Far from a necessary evil, Pinckney thought slavery was a necessary good, as it had been for time immemorial. ‘In all ages,’ he claimed, ‘one half of mankind have been slaves.’”

“There was, to be sure, one delegate who resembled Senator Cotton’s description: Pinckney’s cousin, Charles Cotesworth Pinckney, also from South Carolina. At one point in the convention debates, a perturbed Cotesworth Pinckney registered a complaint, seeming to desire, Madison noted, ‘that some provision should be included in favor of property in slaves.’ That would have based the Union firmly on the constitutional right of slavery. And Cotesworth Pinckney did come close to calling slavery a necessary evil, noting that without it the Carolina economy could not survive (which was technically correct). But the convention majority, far from agreeing with anything he said, dismissed his objection out of hand.”

“The Constitution was hardly an antislavery document. Through fierce debates and by means of backroom deals, the lower South slaveholders managed to win compromises that offered some protection to slavery in the states: the notorious three-fifths clause giving an allotment of House seats and Electoral College votes based on a partial counting of enslaved persons; a twenty-year delay in authorizing Congress to abolish the nation’s involvement in the Atlantic slave trade; and a fugitive slave clause. Most importantly, the Constitution by implication barred the new federal government from directly interfering with slavery in the states where it already existed.”

“But neither did the Constitution, as Senator Cotton wrongly claims, establish slavery as necessary to the Union. It’s true that a few proslavery delegates threatened that their states would refuse to join the Union unless their demands were met. This occurred with particular force with regard to the Atlantic slave trade. A majority of convention delegates wanted to empower the national government to abolish the horrific trade, striking the first blow against it anywhere in the Atlantic world in the name of a sovereign state. Appalled, the lower South delegates, led by South Carolina’s oligarchs, threatened to bolt if the convention touched the slave trade in any way, but the majority called their bluff.”

“In the end, the proslavery delegates carved out the compromise that prevented abolishing the trade until 1808, salvaging a significant concession, though there could be little doubt that the trade was doomed. Even with this compromise, the leading Pennsylvania abolitionist Benjamin Rush hailed the slave trade clause as ‘a great point obtained from the Southern States.’ His fellow Pennsylvanian and a delegate to convention, James Wilson, went so far as to say that the Constitution laid ‘the foundation for banishing slavery out of this country.’”

“History, of course, proved Wilson wrong—but not completely wrong. With the rise of the cotton economy, based on the invention of the cotton gin, which Wilson could not have foreseen, American slavery was far from stymied, but grew to become the mightiest and most expansive slavery regime on earth, engulfing further territories—including Cotton’s own Arkansas.”

“The Framers’ compromises over slavery had little to do with it, however. The problem was not primarily constitutional but political: so long as a substantial number of Northerners remained either complacent about slavery’s future, indifferent to the institution’s oppression, or complicit in the growth of the new cotton kingdom, the Constitution would permit the spread of human bondage.”

“Even so, in fact, the Constitution contained powerful antislavery potential. By refusing to recognize slavery in national law, the Framers gave the national government the power to regulate or ban slavery in areas under its purview, notably the national territories not yet constituted as separate states. The same year that the Framers met, the existing Congress banned slavery from the existing territories north of the Ohio River under the Northwest Ordinance, a measure reflected in the Constitution, which the new Congress quickly affirmed when it met in 1789. Later antislavery champions, including Abraham Lincoln, always considered the Northwest Ordinance to be organic to the Constitution; proslavery advocates came to regard it as an illegitimate nullity.”

“In time, as antislavery sentiment built in the North, the condition of slavery in the territories and in connection with the admission of new states became the major flashpoint of conflict, from the Missouri crisis of 1819–1821 to the guerrilla warfare of ‘Bleeding Kansas.’ Proslavery champions like John C. Calhoun of South Carolina invented an argument that denied the Congress any power over slavery in the territories; Lincoln and his fellow Republicans refuted that argument. And upon Lincoln’s election as president in 1860, this constitutional issue was enough to spark the secession that led to the Civil War and Emancipation.”

Senator Cotton has some mistaken things to say about that history, too. The Framers, he asserts, built the Constitution ‘in a way, as Lincoln said, to put slavery on the course to its ultimate extinction.’ This absurdly imputes to the Framers powers of clairvoyance. Although Lincoln sometimes suggested that the Framers had purposefully designed slavery’s abolition—even Lincoln could wishfully exaggerate—the Constitution hardly ensured slavery’s doom. It took Lincoln’s and the antislavery Republicans’ concerted political efforts to vindicate the Constitution’s antislavery elements that set the stage for what Lincoln in his ‘House Divided’ speech of 1858 called ‘ultimate extinction.’”

“Far from establishing a Union based on what Senator Cotton calls the ‘necessary evil’ of slavery, the Founders fought bitterly over human enslavement, producing a document that gave slavery some protection even as it denied slavery national status and gave the federal government the power to restrict its growth—and so hasten its demise. The slaveholders, unable to abide that power, eventually seceded in an effort to form a new slaveholders’ republic, with a new Constitution built entirely on slavery: its cornerstone, as the Confederate Vice President Alexander Stephens declaimed, was ‘the great truth that the negro is not equal to the white man; that slavery—subordination to the superior race—is his natural and normal condition.’”

“As far as a Union founded on the ‘necessary evil’ of slavery is concerned, Cotton appears unaware of how profoundly the Constitution of the United States of America differed from that of the Confederate States of America.”

Wilentz’ Longer Account of the U.S. History of Slavery[3]

In November 2019, Wilentz, delivering the fourth annual Lecture in honor of Philip Roth, drew upon the novelist’s insight that history was “the relentless unfolding of the unforeseen” or “where everything unexpected in its own time is chronicled on the page [of history] as inevitable.” For “the centrality of slavery to American history,” Wilentz says, “the United States was defined, from the start, neither by American slavery alone or by American antislavery but in their conflict” and “few things if any in modern history were more unexpected than the eradication of human bondage in the Atlantic world.”

This was so even though “the ideals that propelled the American Revolution shared crucial origins with the ideals that propelled antislavery. Yet American slavery did not die out as most expected” with “revolutionary America” as a “hotbed of antislavery politics.” In fact, slavery “expanded, turning the American South into the most dynamic and ambitious slavery regime in the world” with “slaveowners [stiffening ] their resolve to affirm their property rights in human beings” and coming “perilously close to establishing an American empire of slavery.”

Conclusion

These ideas of Wilentz help us understand why he and the other four prominent American historians dissented from at least one of the major premises of The Project of 1619, which will be discussed in a future post.[4]

Although I was a history major many years ago at Grinnell College, I do not have the intimate knowledge of the slavery and antislavery conflicts that are discussed by Professor Welentz. Nevertheless, I wonder whether he is overreacting to Senator Cotton’s comment.

The Constitutional Convention in Philadelphia convened in 1787 to consider whether and how to amend the existing Articles of Confederation after Alexander Hamilton’s report on the  unsuccessful attempt to do so at the Annapolis Conference of 1786 coupled with his forceful criticism of those Articles and recommendation of the calling of a convention to “render the constitution of the federal government adequate to the exigencies of the union.”[5]

For the first two months or so of the Constitutional Convention there were debates between delegates from large and small states, between those favoring states-rights and those wanting a strong national government. “By the end of June the convention seemed in danger of dissolving, with nothing accomplished.” That, however, was prevented when the Convention accepted a proposal by Oliver Ellsworth of Connecticut (“the Great Compromise”) for equal representation of the states in the Senate and proportional representation by population in the House. Thereafter other compromises were reached, including counting three-fifths of the slaves for representation in the House.[6]

In other words, many compromises were necessary in order to obtain agreement on the new Constitution before it could be submitted to the states for ratification. Some of those compromises accommodated slavery while others did not. As Wilentz said, the Constitution “gave slavery some protection even as it denied slavery national status and gave the federal government the power to restrict its growth—and so hasten its demise.” In short, compromises with the evil of slavery were necessary in order to create the new Constitution.

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[1] Evaluation of the Report of the U.S. Commission on Unalienable Rights and Its Endorsement by Secretary Pompeo, dwkcommentaries.com (Aug. 3, 2020);  Senator Cotton Continues Criticism of The 1619 Project, dwkcommenataries.com (Aug. 10, 2020).

[2] Wilentz, What Tom Cotton Gets So Wrong About Slavery and the Constitution, N.Y. Review of Books (Aug. 3, 2020).

[3] Wilentz, American Slavery and ‘the Relentless Unforeseen,’ N.Y. Review of Books (Nov. 19, 2019).

[4]  See Historian Wilentz and New York Times Editor Exchange Views About The 1619 Project, dwkcommentaries.com (forthcoming Aug. –, 2020).

[5] Williams, Current & Freidel, A History of the United States [To 1876], pp. 170-72  (Alfred A. Knopf, New York, 1959.) (This is my book from college and comments from others with more detailed knowledge of the Constitutional Convention are solicited.)

[6] Id. at 172-77.

Ex-Cop Derek Chauvin: An Enigma in Blue?  

Yes, said a StarTribune article based on interviews of other police officers, neighbors and one family member.[1]

“Former colleagues are confounded by how the unassuming veteran street cop became the city’s most notorious officer.”  One of them, retired , said, “He’s not the devil that he’s made out to be. I don’t know what happened to him. Nobody knows. That’s the million-dollar question.” Another, Jerry Obleglo, a former U.S. Army platoon sergeant stationed in Germany with Chauvin, said Chauvin “was a regular guy, didn’t stand out, did his job, kept his uniform clean and kept his equipment accounted for. . . No complaints.” Another officer, now a retired precinct commander, said “she never thought [Chauvin] was overly aggressive.”

His only disciplinary action in Minneapolis was in 2007 when he stopped a woman on her way home from grocery shopping. She alleged Chauvin had pulled her over for going 10 mph over the speed limit, frisked her and put her in the squad car. For this Chauvin received a letter of reprimand.

Another complaint that did not result in any disciplinary action was filed by a county mental health worker. In 2013 on his way home after work, the worker was stopped by Chauvin and another officer, who ordered the worker out of his car and tried to force him down on the pavement, but who went down on his own to avoid injury. When the individual was taken to a police station, other officers determined there was a mistaken identity. Yet the mental health worker was charged with failing to comply with police orders and resisting arrest, charges that later were dropped.The worker is still angry and was not surprised to learn that Chauvin was the one who was at his car window that night. He said, Chauvin “was running around like a loose cannon.”

Chauvin provided off-duty security at a local nightclub for many years. Its owner described him as a “mellow” guy who did not talk much about himself, but quickly became aggressive on nights when there were a number of Black customers. On another occasion she said she did not know of any interactions of the two men at the club. But one wonders whether they ever had any conflicts at the club that the May 25th arrest of Floyd gave Chauvin the chance for revenge. Or that Chauvin’s pinning of Floyd that night was prompted by  jealousy of Floyd as a result of something that happened at the club.

==========================

[1] Montemayor, Bjorhus & McKinney, Those who know Derek Chauvin say they would not have predicted his killing of George Floyd, StarTribune (Aug. 8, 2020) See also these posts to dwkcommentaries.com: Derek Chauvin’s Wife’s Divorce Petition Raises Questions (July 8, 2020); Derek Chauvin’s Policing Background (July 20, 2020); Chauvin and Wife Now Charged with Minnesota Tax Crimes (July 22, 2020).

 

 

 

Court Orders Public Release of Bodycam Footage of George Floyd Arrest and Killing   

On August 7, Hennepin County District Court Judge Peter Cahill ordered the public release of the bodycam footages of the arrest and killing of George Floyd that were made by criminal defendants and former police officers Thomas Lane and J. Alexander Kueng.[1]

The Judge’s order said, “Members of the Media Coalition, as well as other media and members of the public, may obtain copies” of the footage. The order, however, did not elaborate on the rationale for his ruling, nor on how or when the footage would be released.

On July 13, the so called Media Coalition of local and national media companies had filed with the court a motion for the immediate release of this footage. The Coalition argued that the court’s allowing these videos to be viewed only at the courthouse by appointment violated state laws, court rules and the First Amendment of the U.S. Constitution.[2]

The Media Coalition consists of the StarTribune; American Public Media, which owns Minnesota Public Radio; the Associated Press; CBS Broadcasting Inc.; Dow Jones & Co., publisher of the Wall Street Journal; Hubbard Broadcasting; Hubbard Broadcasting, which owns a Minnesota television broadcaster (KSTP-TV); and the New York Times Co., among others.

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[1] Simons, Judge orders release of Minneapolis police body camera video from the night George Floyd was killed, StarTribune (Aug. 7, 2020); Judge orders release of body camera video showing Floyd killing, MPRnews (Aug. 7, 2020).

[2] Media Coalition Asks Court To Release BodyCam Footage of George Floyd Killing, dwkcommentaries.com (July 14, 2020).

 

Court Denies Ex-Officer Kueng Motion To Remove County Attorney from George Floyd Criminal Case    

On August 6, Thomas Plunkett,the attorney for former Minneapolis police officer J. Alexander Kueng filed a motion to have Hennepin County Attorney Mike Freeman removed from the team of prosecuting attorneys.[1]

According to the motion papers, Freeman ‘cannot act to protect Mr. Kueng’s right to a fair trial as they have already proclaimed his guilt in numerous public statements. Mr. Freeman has called the death of Mr. Floyd a ‘senseless death’ and that he is sympathetic to the Floyd family.” In addition, Freeman allegedly “also commented that the video of the incident from a bystander ‘is graphic, and horrific and terrible, and no person should do that.” Therefore, these papers argue, “Mr. Freeman’s comments leave no doubt that justice is not his objective in the Kueng prosecution. Mr. Freeman has fomented public anger and now seeks to taint that anger with hatred through the prosecution of Mr. Kueng. He has abdicated his duties as a prosecutor and must be removed from the case.”

Kueng’s lawyer also asserted that Freeman’s office leaked information about potential plea negotiations, which he knew “would be widely reported and have a significant impact on the local community, potential jurors, and the nation.”

The very next day (August 7) without any response from the County Attorney and without a hearing, Hennepin County District Judge Peter Cahill denied the motion. The Judge said the attorney (Thomas Plunkett) had failed to establish that there was a conflict of interest and “failed to provide legal authority for the removal of a prosecutor by the Court, even if the allegations of improper conduct are true.”[2]

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[1] Browning, Motion seeks removal of Hennepin County Attorney from case of officer charged in Floyd killing, StarTribune (Aug. 6, 2020); Assoc. Press, Ex-Cop’s Lawyer Wants Prosecutor Dropped From Floyd Case, N.Y. Times (Aug. 6, 2020).

[2]  Assoc. Press, Judge: Mike Freeman will stay on ex-cop’s case in Floyd death, StarTribune (Aug. 7, 2020.

 

British Newspaper Releases Bodycam Footage of George Floyd’s Arrest and Killing 

On August 3, a British newspaper’s website, Daily Mail.com, released about 10 minutes of the bodycam footage of former Minneapolis police officer Thomas Lane and about 18 minutes of ex-officer J. Alexander Kueng’s showing the May 25th encounter and killing of George Floyd.[1]

The Daily Mail’s online article says the footage “was leaked to DailyMail.com” and “is revealed exclusively by” that site. The article includes photos of some segments of the video as well as a button to push “Watch the full video.”  The article also includes the newspaper’s textual descriptions of what is seen on the videos and, in some instances, the newspaper’s interpretations of the encounter:

  • “It is clear from the video that Floyd was not trying to run away. He had plenty of time to leave the scene before police arrived. But instead he decided to sit in his car with two friends, giving the cops the opportunity to approach.”
  • “It shows a rookie officer terrifying Floyd by pointing a handgun at his head.”
  • “’Hey man, I’m sorry,’ Floyd says and apologizes again before Lane gets belligerent. ‘Put your f***ing hands up right now! Let me see your other hand,’ the cop is heard saying.”
  • “Floyd resisted as the cops tried to force him into the back of the car, telling them he suffers from claustrophobia and anxiety.”
  • “The tapes show in minute detail how a very distressed Floyd begs ‘Mr. Officer, please don’t shoot me. Please man,’ before the struggle that ended with his death.”
  • “It also shows how belligerent cops cursed at and manhandled the sobbing suspect, ignoring his pleas for compassion.”
  • “Floyd is even heard predicting his own death. ‘I’ll probably just die this way,’ he says.”
  • It shows an officer “callously picking a pebble from the squad car tire just inches from the dying man and seconds before he draws his last breath.”

The release of the videos was in violation of an order by Hennepin County District Judge Peter Cahill, who had made the videos available by appointment for public viewing at the courthouse on condition they not be recorded or publicly distributed. The court provided laptop computers for watching the videos to the scheduled viewers, who were required to not have their own computers and phones with them.[2]

The Daily Mail’s videos appear to have been recorded by an electronic device when they were shown on one of the court’s computers. The Daily Mail did not say how it had obtained the footages other than they had been “leaked.”

A court spokesman, Spencer Bickett, said the Court was aware of the leak, that an investigation was underway and that “The court will provide no further comment on this matter at this time.”

Minnesota Attorney General Keith Ellison stated that he was not the source of the leak and that his office “will continue to take the strictest precautions to ensure a fair trial.”

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[1] Gould, EXCLUSIVE: Police bodycam footage shows moment-by-moment arrest of George Floyd for the first time-from terror on his face when officer points gun at his head, sobbing before he’s shoved into a squad car and begging to breathe as his life drains away. DailyMaiol.com (Aug. 3,  2020); Wax-Thibodeaux, Bailey & Berman, Protests live updates: Daily Mail publishes ‘leaked’ police body-cam footage of George Floyd arrest, Wash. Post (Aug. 3, 2020); George Floyd Case: Daily Mail Obtains Body Cam Video from 2 Officers in Floyd’s Arrest Death, CBS Minnesota (Aug. 3, 2020); Assoc. Press, British Paper Publishes Police Bodycam Video of Floyd Arrest, N.Y. Times (Aug. 3, 2020); Xiong, Daily Mail publishes leaked bodycam footage of George Floyd arrest, killing, StarTribune (Aug. 3, 2020).

[2] See Gag Order in George Floyd Murder Cases, dwkcommentaries.com (July 9, 2020);  Media Coalition Asks Court To Release BodyCam Footage of George Floyd Killing, dwkcommentaries.com  (July 14, 2020); Journalist’s Report on viewing Two Bodycam Footages of George Floyd Killing, dwkcommentaries.com:  (July 15, 2020); Bodycam video shows officer pulled gun on George Floyd early on, StarTribune (July 16, 2020). See also List of Posts to dwkcommentaries—Topical: George Floyd Killing.

 

 

 

 

Evaluation of the Report of the U.S. Commission on Unalienable Rights and Its Endorsement by Secretary Pompeo  

The Draft Report of the U.S. Commission on Unalienable Rights and its immediate endorsement by Secretary Pompeo raise many issues.[1]

Here is an evaluation of three of those issues: (1)  property rights and religious freedom as the alleged paramount human rights; (2) the report’s skepticism of new and additional rights; and (3) Pompeo’s exceedingly hostile criticism of the New York Times’ “The 1619 Project.”

 Property Rights and Religious Freedom[2]

Looking at the Commission’s Report for the first time, I was shocked to read, “Foremost among the unalienable rights that government is established to secure, from the founders’ point of view, are property rights and religious liberty,” neither of which is specifically mentioned in the U.S. Declaration of Independence as an inalienable right. Moreover, the Report did not purport to document the bases for this conclusion other than inserting these unconvincing statements:

  • “For the founders, property refers not only to physical goods and the fruit of one’s labor but also encompasses life, liberty, and the pursuit of happiness. They assumed, following philosopher John Locke, that the protection of property rights benefits all by increasing the incentive for producing goods and delivering services desired by others.”
  • “‘The benefits of property rights, though, are not only pecuniary. Protection of property rights is also central to the effective exercise of positive rights and to the pursuit of happiness in family, community, and worship. Without the ability to maintain control over one’s labor, goods, land, home, and other material possessions, one can neither enjoy individual rights nor can society build a common life. Moreover, the choices we make about what and how to produce, exchange, distribute, and consume can be tightly bound up with the kinds of human beings we wish to become. Not least, the right of private property sustains a sphere generally off limits to government, a sphere in which individuals, their families, and the communities they form can pursue happiness in peace and prosperity.”

The Report then immediately and properly admits the inconsistency between the purported status of property rights as a “foremost inalienable right” and the existence of slavery when the Declaration of Independence was adopted in 1776.  Here is that admission: “The importance that the founders attached to private property only compounds the affront to unalienable rights involved at America’s founding in treating fellow human beings as property.”

In addition, the concept of property rights is not mentioned in the Report’s earlier assertions about the origins of the American concept of unalienable rights from three traditions: “Protestant Christianity, widely practiced by the citizenry at the time, was infused with the beautiful Biblical teachings that every human being is imbued with dignity and bears responsibilities toward fellow human beings, because each is made in the image of God. The civic republican ideal, rooted in classical Rome, stressed that freedom and equality under law depend on an ethical citizenry that embraces the obligations of self-government. And classical liberalism put at the front and center of politics the moral premise that human beings are by nature free and equal, which strengthened the political conviction that legitimate government derives from the consent of the governed.”

The shock of this designation of alleged “foremost” human rights makes one wonder whether it was a last-minute insertion, perhaps by Secretary Pompeo himself, who said in his speech immediately after the presentation of the Commission Report, ““The report emphasizes foremost among these rights are property rights and religious liberty. No one can enjoy the pursuit of happiness if you cannot own the fruits of your own labor, and no society – no society can retain its legitimacy or a virtuous character without religious freedom. (Emphasis added.)

Many commentators have attacked the contention that property rights and religious freedom were the “foremost” rights.

Daniel W. Drezner, a professor of international politics at the Fletcher School of Law and Diplomacy at Tufts University, asserts that “there are obvious elements of liberty  . . that are disconnected from any conventional understanding of property rights concept. The First Amendment right to peaceably assemble, for example, seems like a core aspect of liberty and yet does not quite work as a property right per se.” In addition, when the Report refers to rights that are “fundamental” and “core concept” and “absolute or nearly so” rights, it refers to the right to vote, human dignity and the prohibition against genocide and makes no connection to property rights or religious rights.

Another critique came from Akila Radhakrishnan, the president of the Global Justice Center, an international human rights organization. He said, “You’re seeing the rise of autocrats across the world. You’re giving a gift to those people, and not only taking away U.S. leadership, but giving them and feeding them arguments they’ve long been making as well.”

U.S. Senator Bob Menendez (Dem., NJ), criticized Pompeo’s designation of property rights and religious liberty as “foremost” rights while other rights were less important. This argument, the Senator said, purports to justify “the  rollback of hard-won advances for the rights of women, girls, and LGBTQ persons” and “does not  call on the U.S. Government to champion greater protections for all human rights abroad, but may in fact narrow the scope of U.S. human rights obligations and further erode America’s moral and global leadership.”  This Report, therefore, “will undermine long-standing, internationally-recognized human rights principles and a human rights framework which prior U.S. presidents and administrations have championed for decades, regardless of party.”

The Report’s elevation of religious freedom presented problems to Rori Kramer, the director of U.S. advocacy for American Jewish World Service and a former deputy assistant secretary of state and a senior foreign policy adviser in the U.S. Senate.  This decision “purposefully [confuses] the individual freedom to worship with a state license to advance a particular religious agenda [and] is a gross misreading of the United States’ founding document.”

Kramer added, the Report and Pompeo do not reveal the promotion of Pompeo’s own religious agenda that  “downplays threats to the human rights of the world’s most vulnerable groups, such as women and LGBTQI+ people.” Indeed, Pompeo’s State Department already has removed “references to sexual and reproductive health from international resolutions and statements, as well as from the work of the department itself. And he has dramatically expanded the global gag rule, the draconian policy which prohibits foreign organizations receiving U.S. funding from providing any kind of information, referrals or services about abortion.”

Tarah Demant, director of the gender, sexuality and identity program at Amnesty International USA, said: “The US government cannot unilaterally redefine which human rights will be respected and which will be ignored. The U.S. State Department’s effort to cherry-pick rights in order to deny some their human rights is a dangerous political stunt that could spark a race to the bottom by human rights-abusing governments around the world.”

A more general critique of the idea of too many subgroups demanding rights came from Elisa Massimino, the 2019-2020 Robert F. Drinan, S.J., Chair in Human Rights at Georgetown University Law Center and a senior fellow at the Center for American Progress., and  Alexandra Schmitt, a policy analyst at the Center for American Progress. They say the UDHR’s preamble expressly recognizes the inherent dignity and of the equal and inalienable rights” of all humans and makes clear that all of them are interrelated and must be treated as indivisible in order to fulfill the promise of human dignity. It is a simple and radical document — a Magna Carta for all humankind.”

Therefore, Massimino and Schmitt say, “What the global human rights movement needs right now is for the United States to fully embrace the universality and indivisibility of human rights as set out in the Universal Declaration, provide a full-throated defense of human rights abroad and engage in an honest effort to address deep and persistent rights violations at home. It’s clear that Pompeo has no intention of leading such an effort; to the contrary, he is actively undermining it. To the extent that he tries to leverage the commission’s report as cover for his campaign to “prioritize” freedom of religion over other universal rights, American officials — and Congress, in particular — must be prepared to push back.”

Skepticism of Additional Rights[3]

The Report and Pompeo are skeptical of claims for additional rights, both domestically in U.S. law and in international treaties.

The Report puts it in this manner: “The effort to shut down legitimate debate by recasting contestable policy preferences as fixed and unquestionable human rights imperatives promotes intolerance, impedes reconciliation, devalues core rights, and denies rights in the name of rights. In sum, the [U.S.] should be open to, but cautious in, endorsing new claims of human rights.”  Who could be against caution?

Pompeo also was indirect. He said, “Our dedication to unalienable rights doesn’t mean we have the capacity to tackle all human rights violations everywhere and at all times. Indeed, our pursuit of justice may clash with hard political realities that thwart effective action.” And “Americans have . . . positive rights, rights granted by governments, courts, multilateral bodies. Many are worth defending in light of our founding; others aren’t. . . . Prioritizing which rights to defend is also hard.. That’s a lot of rights. And the proliferation of rights is part of the reason why this report is so important.”

In so doing, the Report and Pompeo forget or ignore the Declaration of Independence, which does not have the force of law and which  immediately after mentioning  “certain unalienable rights” (life, liberty and the pursuit of happiness) states, “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” In other words, the U.S. Declaration expressly contemplates, if not requires, that the U.S. government under the subsequent U.S. Constitution, will enact statutes to secure these unalienable rights and thereby create additional rights.

The UDHR, which also does not have the force of law, has the same contemplation and requirement when in its Preamble, it states, “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law” and in its Proclamation states, “every individual and every organ of society . . . shall strive . . . by progressive measures, national and international, to secure their universal and effective recognition  and observance.” In other words, the UDHR expressly contemplates, if not requires, that individual governments and international organizations will adopt subsequent statues and treaties to secure the rights  of the UDHR.

The Report nevertheless favorably and correctly refers to the many “positive rights,” which “are created by, and can only exist in, civil society. Positive rights owe their existence to custom, tradition, and to positive law, which is the law created by human beings” and which “may evolve over centuries, may be legislated at a distinct moment, and may be revised or repealed.”

The Report emphasized this fact by quoting James Madison’s June 1789 speech to Congress in favor of a Bill of Rights [which was adopted in 1791). He stressed that despite different origins , “freedom is a function of positive rights elaborated in various legal codes as well as rights that belong to all human beings.” The Report also mentions that “American legislatures in the late 19th and early 20th centuries . . . began to enact protections for workers that were framed in the language of rights . . . . that entail difficult judgments about the allocation of material resources . . .[and that primarily are the tasks for legislatures.]”

Time has not stood still since 1776 when the U.S. Declaration was adopted or 1789 when the U.S. Constitution was ratified and the U.S. Government was established. The same is true with respect to the international organizations and treaties established after the adoption of the UDHR in 1948. Therefore, it is not surprising to have additional rights created over time in statutes and treaties.

Fourth, numerous commentators have criticized the Report and Pompeo on this issue.

As Molly Bangs in Truthout notes, the Report does not endorse protections against discrimination on the basis of gender, race or sexual orientation and instead asserts that “abortion, affirmative action, and same-sex marriage [are] divisive social and political controversies in the [U.S.]” This is “a signal of how the Commission and Pompeo intend to weaponize religious freedom at the expense of other human rights.”

A similar criticism came from Amnesty International, saying, the U.S. “has disgracefully sought to abandon its obligations to uphold the human rights to health and freedom from discrimination, among others. The US government is not legally allowed to unilaterally redefine its obligations under international human rights treaties, which almost all countries in the world have agreed to uphold.” According to Amnesty, the U.S. “now is seeking to deny reproductive rights, LGBTI rights and socio-economic rights, among others – which it frames as ‘divisive social and political controversies’ – by unilaterally redefining what ‘human rights’ mean.”

The Council on Foreign Relations’ Senior Fellow on Global Governance, Stewart M. Patrick, said Pompeo’s ideas, “if successful, would undermine the cause of freedom, equality and justice, both at home and abroad.” Indeed, the Report “reflects a conservative desire to roll back recent progressive advances” and it alleges, without any evidence, that “the prodigious expansion of human rights has weakened rather than strengthened the claims of human rights and left the most disadvantaged more vulnerable.” Stewart also points out the Report’s “utter disconnect from the Trump administration’s hypocritical human rights policy,” including  “the president’s curious affinity for illiberal leaders ranging from Russia’s Vladimir Putin and China’s Xi Jinping, to Turkey’s Recep Tayyip Erdogan, Saudi Arabia’s Mohammed bin Salman, the Philippines’ Rodrigo Duterte and Brazil’s Jair Bolsonar.”

Human Rights Watch had similar thoughts. While the Report expresses “concern” about a “proliferation” of human rights claims, it should have focused more on “the growing number of autocratic, authoritarian governments that brazenly cast them aside.” Therefore, this organization has submitted a formal comment to the Commission before it revises, if at all, the draft Report.

The most strident critique of the Report comes from Robert Blitt, a professor at the University of Tennessee College of Law, who says it “will only strengthen the Kremlin’s longstanding effort to undercut the international human rights system.” While the U.S.recently resigned from the U.N. Human Rights Council, Russia is campaigning for a seat on that body by promising to prevent the use of human rights issues as pretexts for interference in the internal affairs of sovereign states.

Criticism of the 1619 Project[4]

In his speech commending the Commission Report, Pompeo said, “The New York Times’s 1619 Project – so named for the year that the first slaves were transported to America – wants you to believe that our country was founded for human bondage, that America’s institutions continue to reflect the country’s acceptance of slavery at our founding. . . [and] that Marxist ideology [correctly says] America is only the oppressors and the oppressed. [This 1619 Project] is a slander on our great people. Nothing could be further from the truth of our founding and the rights about which this report speaks.”[5]

Yes, the 1619 Project sets forth important and troubling facts about the introduction of slavery into the American colonies in 1619 that are not well known or taught, that should be known by all Americans and that should not be met with Pompeo’s unjustified ad homonyms of “Marxist ideology” and “a slander on our great people.”

The Times’ introduction of this project stated its goal was “to reframe American history by considering . . .  1619 as our nation’s birth year . . . when a ship arrived  . . . in the British colony of Virginia , bearing a cargo of 20 to 30 enslaved Africans [and inaugurating] a barbaric system of chattel slavery that would last for the next 250 years. . . . Out of slavery—and the anti-black racism it required –grew nearly everything that has truly made America exceptional: its economic might, its industrial power, its electoral system, diet and popular music, the inequities of its public health and education, its astonishing penchant for violence, its income inequality, the example it sets for the world as a land of freedom and equality, its slang, its legal system and the endemic fears and hatreds that continue to plague it to this day.”

More details of this early history were provided in The 1619 Project by Nikole Hannah-Jones, a MacArthur “Genius” fellow and a Times staff writer, who authored “The Idea of America.” Here are a few of those details:

  • “Before the abolishment of the international slave trade, 400,000 enslaved Africans would be sold into America.”
  • “Chattel slavery . . . was heritable and permanent, . . ., meaning generations of black people were born into it and passed their enslaved status onto their children. Enslaved people were not recognized as human beings but as property that could be mortgaged, traded, bought, sold, used as collateral, given as a gift and disposed of violently.”
  • “Enslaved people could not legally marry. They were barred from learning to read and restricted from meeting privately in groups. They had no claim to their own children, who could be bought, sold and traded away from them on auction blocks. Enslavers and the courts did not honor kinship ties to mothers, siblings, cousins.”
  • “In most courts, they had no legal standing.”
  • “One of the primary reasons the colonists decided to declare their independence from Britain was because they wanted to protect the institution of slavery.”
  • Although the Declaration of Independence, did not apply to them, “black Americans believed fervently in the American creed” and “through centuries of black resistance and protest, we have helped the country to live up to its founding ideals.”
  • Six of the U.S. Constitution’s 84 clauses deal directly with the enslaved and their enslavement and another five clauses have implications for slavery.
  • Through their labor, they helped build “vast fortunes for white people North and South.”

Although the Commission Report does not mention these facts about 1619 and slavery, it does confess the evils of slavery in America:

  • “Respect for unalienable rights requires forthright acknowledgement of not only where the United States has fallen short of its principles but also special recognition of the sin of slavery — an institution as old as human civilization and our nation’s deepest violation of unalienable rights. The legally protected and institutionally entrenched slavery that disfigured the United States at its birth reduced fellow human beings to property to be bought, sold, and used as a means for their owners’ benefit. Many slave-owning founders, not least Thomas Jefferson, recognized that in the light of unalienable rights, slavery could only be seen as a cruel and indefensible institution. In contemplating slavery in his Notes on the State of Virginia, he wrote, “I tremble for my country when I reflect that God is just.” Nevertheless, it would take a grievous civil war, costing more American lives by far than any other conflict in the nation’s history, to enable the federal government to declare slavery unlawful. It would take another century of struggle to incorporate into the laws of the land protections to guarantee African Americans their civil and political rights. Our nation still works to secure, in its laws and culture, the respect for all persons our founding convictions require.” (Emphasis added.)

Even today, the Report admits, “the nation must be humble in light of the work that remains to be done.”  The Report also confesses, “the brutal killing of an African-American man [George Floyd] in the late spring of 2020 and the subsequent civic unrest that swept the country underscore that much still must be accomplished.”

But the Report does not trace the history of slavery in America back to its founding in 1619 or admit that for the first 157 years of that history African-American slaves had no legal basis to challenge their being held in slavery. The Report only indirectly alleges that after 1776 the slaves had an inchoate right to argue that the unalienable rights mentioned in the U.S. Declaration of Independence were contrary to slavery, but admits that it was only after the bloody Civil War and the 1865 adoption of the Thirteenth Amendment that slavery was legally abolished. The Report also admits that even that was not enough to abolish the discrimination against African-Americans with the subsequent Jim Crow laws, lynching and other discriminations.

The Times’ initial publication of the 1619 Project in August 2019 has many articles and has prompted publication of many other articles on this subject. Perhaps there are errors of fact or interpretation in these many articles, but the appropriate way to counter such errors is by dispassionate fact-based scholarly articles and books, not by wild-eyed accusations of Marxism and slander. Take note, Secretary Pompeo.

In direct response to Pompeo’s criticism of the 1619 Project, Eileen Murphy of the Times said, ““The 1619 Project, based on decades of recent historical scholarship that has deepened our understanding of the country’s founding, is one of the most impactful works of journalism published last year. We’re proud that it continues to spark a dialogue that allows us to re-examine our assumptions about the past.”

Pompeo’s Political Motives for the Report[6]

Pompeo, a former Kansas GOP congressman, is known to be eyeing a potential future presidential run, and his critics immediately pointed out that the speech endorsing the Commission report had plenty of fodder for the electoral base of the Republican Party, including the media-bashing.

There was additional fodder for that possible presidential run the very next day when Pompeo and his wife went to Iowa (an important presidential nominating state) for a speech (reprinted on the State Department website) before a gathering of a conservative Christian group opposed to divorce, abortion and other sexual orientations. There Pompeo bragged that under his leadership the State Department has a “pro-religious freedom foreign policy . . . . [and] a 100 percent pro-life foreign policy. Our administration has defended the rights of unborn like no other administration in history. Abortion quite simply isn’t a human right. . . . So we’ve reinstated the Mexico City Policy, so that not a single dime of American taxpayer money will ever go to a foreign NGO that performs active abortions anywhere in the world. In the fall of last year. . . we mobilized 20 countries to deliver a joint statement at the UN criticizing pro-abortion language in UN documents.”[7]

Conclusion

The Commission invited comments through July 30/31 on their draft report, and its website has so far posted 133 pages of such comments, which will be discussed in a future post. Thus, we and others need to wait to see if any of these comments prompt changes to the report.[8]

==========================

[1] See U.S. Commission on Unalienable Rights Report, dwkcommentaries.com (July 27, 2020); Secretary Pompeo’s Reactions to U.S. Commission on Unalienable Rights’ Report, dwkcommentaries.com (July 29, 2020).

[2] Verma, Pompeo Says Human Rights Policy Must Prioritize Property Rights and Religion, N.Y. Times (July 16, 2020); Toosi, Pompeo rolls out a selective vision of human rights, Politico.com (July 16, 2020); Borger, Pompeo claims private property and religious freedom are ‘foremost’ human rights, Guardian (July 16, 2020); Massimino & Schmitt, Pompeo’s new commission undermines universal human rights—just as planned, Wash, Post (July 17, 2020); Drezner, Let’s grade the Commission on Unalienable Rights!, Wash. Post (July 20, 2020); Senator Menendez, Menendez on Trump Administration’s Launch of Controversial Commission on Unalienable Rights’ Report (July 16, 2020).

[3] Bangs, Pompeo’s Commission on “Unalienable Rights” Prioritizes Property Over People, truthout.org (July 28, 2020); Amnesty Int’l, USA: State Department’s flawed ‘unalienable rights’ report undermines international law, amnesty.org (July 16, 2020); Rubin, The Trump administration rejects human rights principles at home and aboard, Philadelphia Inquirer (July 21, 2020); Patrick, U.S. Effort to ‘Nationalize’ Human rights Undermines Them at Home and Aboard, World Policy Review (July 27, 2020); Thoreson, US Should Focus on Rights for All, Not Rights for Some, Human Rights Watch (July 30, 2020); Human Rights Watch, Comment [on Draft Report] to Commission on Unalienable Rights (July 2020); Blitt, To Russia, With Love, Jurist (July 30, 2020).

[4] Silverstein, Introduction to 1619 Project, N.Y. Times Magazine (pp. 4-5)  (Aug. 18, 2019); “The 1619 Project” Commemorates the Arrival of Slavery in the U.S., dwkcommentaries.com (Oct. 20, 2019); Hannah-Jones, The Idea of America, N.Y. Times Magazine (pp. 14-26) (Aug. 18, 2019); We Respond to the Historians Who Critiqued The 1619 Project, N.Y. Times (Dec. 20, 2020); List of Times’ references to “1619 Project” , N.Y. Times (as of 8/2/20).

[5] Pompeo’s attack on The 1619 Project may have been precipitated or suggested by U.S. Senator Tom Cotton (Rep., AR), who has been engaged in a feud with the New York Times over its controversial publishing of his op-ed  about the use of U.S. military troops in cases of insurrection or obstruction of the laws in U.S. cities. (Tom Cotton: Send in the Troops, N.Y. Times (June 3, 2020).) One week after publication of the Commission Report, a Cotton press release said, “The . . . 1619 Project is a racially divisive, revisionist account of history that denies the noble principles of freedom and equality on which the nation was founded” as the purported justification for his introducing the Saving American History Act of 2020 to prohibit the use of federal funds to teach the 1619 Project by K-12 schools. (Cotton, Press Release: Cotton Bill to Defund 1619 Curriculum (July 23, 2020).) Soon thereafter Cotton in an interview by an Arkansas newspaper said, “As the Founding Fathers said, [slavery] was the necessary evil upon which the union was built.” (Reuters, Republican Senator Cotton Criticized for “Necessary Evil” Slavery Comment, N.Y. Times (July 27, 2020).)

[6] State Dep’t, Pompeo Speech: My Faith, My Work, My Country (July 17, 2020); Secretary Pompeo’s Reactions to the Commission on Unalienable Rights’ Report, dwkcommentaries.com (July 29, 2020).

[7] See U.S. at U.N. Global Call To Protect Religious Freedom, dwkcommentaries.com (Sept. 24, 2019); U.S. Opposition to “Abortion” and “Sexual and Reproductive Health and Rights” at U.N. High-Level Meeting, dwkcommentaries.com (Sept. 25, 2019).

[8] State Dep’t, Draft Report of the Commission on Unalienable Rights: Public Comments.

 

Ex-Officer Thao Moves for Dismissal of Criminal Charges for George Floyd Killing

On July 29, attorneys for ex-officer Tou Thau filed a motion for dismissal of the criminal charges of aiding and abetting the May 25th killing of George Floyd. The attorneys argue the prosecutors had failed to show that Thao knew that Chauvin and the other officers were going to commit a crime and  that Thao’s presence or actions at the scene were done “to further commission of that crime.”[1]

The prosecution’s response is due August 17 with the hearing on the motion set for September 11. Also to be heard at that hearing is a similar dismissal motion by ex-officer Thomas Lane.[2]

=============================

[1] Furst, Tou Thao seeks dismissal of charges in George Floyd’s killing, StarTribune (July 30, 2020); Assoc. Press, Ex-Minneapolis cop argues for dropped charges in Floyd death, mprnews.org (July 29, 2020).

[2]  Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing, dwkcommentaries.com (July 9, 2020).

 

U.S. Commission on Unalienable Rights’ Report

On July 7, 2019, the U.S. State Department launched its Commission on Unalienable Rights to conduct ”an informed review of the role of human rights in American foreign policy.” This study was to focus on “human rights grounded in our nation’s founding principles and the principles of the 1948 [United Nations] Universal Declaration of Human Rights.” The next day Secretary of State Michael Pompeo announced that the group’s chair would be Mary Ann Glendon, the Learned Hand Professor of Law at Harvard Law School, an expert on human rights, comparative law and political theory and former U.S. Ambassador to the Holy See, who would be aided by nine other eminent members.[1]

Over the next year the Commission held six public meetings with these ten distinguished speakers: (1) Michael W. McConnell, a Stanford University law professor and former federal appellate judge;  (2)  Wilfred M. McClay, a humanities professor at the University of Tennessee; (3) Cass Sunstein, a professor at Harvard Law School; (4) Orlando Patterson, a Professor of Sociology at Harvard University;  (5) Michael Abramowitz, the director of the Committee on Conscience at the U.S. Holocaust Memorial Museum; (6) Miles Yu, a Chinese-American and principal China policy and planning advisor to Secretary Pompeo; (7) Kenneth Roth, Executive Director of Human Rights Watch; (8) Diane Orentlicher, Professor of International Law at American University; (9) Martha Minow,  Harvard Law School professor and expert in human rights and advocacy for members of racial and religious minorities and for women, children, and persons with disabilities; and (10) Thor Halverssen, a Venezuelan-Norwegian businessman and human rights activist.[2]

On July 16, 2020, the Commission issued its 60-page report, which is subject to public comment through July 30 and which will be reviewed in this post. [3] Subsequent posts will examine Secretary Pompeo’s personal endorsement of that report and his conversation about the report with Chair Glendon as well as reactions from others outside the Commission.

The Report: Unalienable and Positive Rights

“The 17th century British subjects who settled, and built thriving communities along, the eastern seaboard of what they regarded as a new world brought with them a variety of traditions. . . . Among the traditions that formed the American spirit, three stand out. Protestant Christianity, widely practiced by the citizenry at the time, was infused with the beautiful Biblical teachings that every human being is imbued with dignity and bears responsibilities toward fellow human beings, because each is made in the image of God. The civic republican ideal, rooted in classical Rome, stressed that freedom and equality under law depend on an ethical citizenry that embraces the obligations of self-government. And classical liberalism put at the front and center of politics the moral premise that human beings are by nature free and equal, which strengthened the political conviction that legitimate government derives from the consent of the governed.”

Each of these “distinctive traditions that nourished the American spirit contributed to the core conviction that government’s primary responsibility was to secure unalienable rights — that is, rights inherent in all persons. The Declaration of Independence proclaims this core conviction:” ‘that all men are created equal, that they are endowed by their Creator, with certain unalienable rights, that among there are Life, :liberty, and the pursuit of happiness.”

“To say that a right, as the founders understood it, is unalienable is to signify that it is inseparable from our humanity, and thereby to distinguish it from other sorts of rights. The most fundamental distinction is between unalienable rights — sometimes referred to as natural rights in the founding era and today commonly called human rights — and positive rights. Unalienable rights are universal and nontransferable. They are pre-political in the sense that they are not created by persons or society but rather set standards for politics. They owe their existence not to the determinations of authorities or to the practices of different traditions but to the fundamental features of our humanity. . . . {S]uch rights are essential to the dignity and capacity for freedom that are woven into human nature.”

“In contrast, positive rights are created by, and can only exist in, civil society. Positive rights owe their existence to custom, tradition, and to positive law, which is the law created by human beings. Because custom, tradition, and positive law vary from country to country, so too do positive rights. In the same country, positive rights may evolve over centuries, may be legislated at a distinct moment, and may be revised or repealed.”

“To say that positive rights are not universal, however, is not to deny their importance, and to say that they are distinct from unalienable rights is not to deny that the two can be closely connected in political affairs. Unalienable rights provide a standard by which positive rights and positive law can be judged, while positive rights and positive law make the promise of unalienable rights concrete by giving expression to and instantiating unalienable rights.”

All of the above, in this blogger’s judgment, is eminently reasonable.

The Report: The Foremost Unalienable Rights

The Report, however, in this blogger’s opinion, is on shakier ground when it goes on to say, “Foremost among the unalienable rights that government is established to secure, from the founders’ point of view, are property rights and religious liberty. A political society that destroys the possibility of either loses its legitimacy.”

“For the founders,” the Report goes on to say, “property refers not only to physical goods and the fruit of one’s labor but also encompasses life, liberty, and the pursuit of happiness. They assumed, following philosopher John Locke, that the protection of property rights benefits all by increasing the incentive for producing goods and delivering services desired by others.’

‘The benefits of property rights, though, are not only pecuniary. Protection of property rights is also central to the effective exercise of positive rights and to the pursuit of happiness in family, community, and worship. Without the ability to maintain control over one’s labor, goods, land, home, and other material possessions, one can neither enjoy individual rights nor can society build a common life. Moreover, the choices we make about what and how to produce, exchange, distribute, and consume can be tightly bound up with the kinds of human beings we wish to become. Not least, the right of private property sustains a sphere generally off limits to government, a sphere in which individuals, their families, and the communities they form can pursue happiness in peace and prosperity.”

“The importance that the founders attached to private property only compounds the affront to unalienable rights involved at America’s founding in treating fellow human beings as property. It also explains why many abolitionists thought that owning property was a necessary element of emancipation: only by becoming property-owning citizens could former slaves exercise economic independence and so fully enjoy their unalienable rights.”

“Religious liberty enjoys similar primacy in the American political tradition — as an unalienable right, an enduring limit on state power, and a protector of seedbeds of civic virtues. In 1785, James Madison gave classic expression to its centrality in founding-era thinking in his ‘Memorial and Remonstrance Against Religious Assessments.’ Quoting the Virginia Declaration of Rights’ definition of religion, Madison wrote, ‘we hold it for a fundamental and undeniable truth, ‘that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.’ Freedom of conscience in matters of religion is unalienable “because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men.’”

The Report: The Universal Declaration of Human Rights (UDHR)[4]

The report endorsed the statement of Eleanor Roosevelt, a U.S. citizen and Chair of the commission that drafted the UDHR, when the U.N. General Assembly in 1948 was considering the adoption of this instrument: “[I]t is of primary importance, that we keep clearly in mind the basic character of the document. It is not a treaty; it is not an international agreement. It is not and does not purport to be a statement of law or of legal obligation. It is a Declaration of basic principles of human rights and freedoms, to serve as a common standard of achievement for all peoples of all nations” (emphasis added).

Moreover, the UDHR has ”overarching principles and structural dimensions” connected to the U.S. founding and foreign policy.

First, the UDHR “gave voice to the conscience of global humanity for the first time in history.”

Second, the UDHR “includes only those [rights] that were capable of attaining a near-universal consensus among the diverse nations represented at the UN . . . [and] were expressed in open-ended terms in order to achieve consensus and garner widespread support.”

Third, the UDHR “was written and understood as an integrated set of interlocking principles.”

Fourth, the UDHR “affirms that human dignity, freedom, equality, and community are indissolubly linked.” It makes “clear that human dignity is inherent: it pertains to human beings solely because they are human beings . . . and provides a moral standards for evaluating positive law.” Thus, “the idea of human dignity at the heart of the [UDHR}converges with the idea of ‘unalienable rights’ in the American political tradition.”

Fifth, the UDHR has the “capacity to accommodate a broadly diverse set of political, economic, cultural, religious, and legal traditions” and “can be concretely realized in different political systems . . . [allowing] significant latitude in their interpretation and application.”

The Report: Future U.S. Foreign Policy and Human Rights

  1. “U.S. Needs To Vigorously Champion Human Rights in Foreign Policy

The U.S., “ by virtue of the principles deeply inscribed in its constitutional system and its international commitments, must champion vigorously the vision that it and nearly every other nation pledged to support when they approved the[UDHR].. It is by fidelity to what is best in the nation that the United States can respond most effectively to the manifold demands of the moment. Each of the major traditions that merged in America’s founding — Biblical faith, civic republicanism, and the modern tradition of freedom — nourished the nation’s core convictions that government is properly rooted in the consent of the governed and that its first purpose is to secure the rights that all human beings share. These core convictions, and the traditions that nourish them, are a source of inspiration and strength. It is no exaggeration to say that, with people around the world counting on America to champion fundamental rights, this country’s energetic dedication to that task will have no small influence on the future of freedom.”

  1. “The Power of Example Is Enormous”

The U.S. should serve “as an example of a rights-respecting society where citizens live together under law amid the nation’s great religious, ethnic, and cultural heterogeneity.” The U.S. also needs “to recognize the gap between our principles and the imperfections of our politics and can demonstrate, as we ask of others, tangible efforts at improvements.” 

  1. “Human Rights Are Universal and Indivisible

The U.S. needs to criticize when rights in UDHR “are radically subordinated in the name of development or other social and economic objectives.”

  1. “Universality and Indivisibility of Human Rights Does Not Mean Uniformity in Bringing Them to Life”

The UDHR contemplates “some variation in emphasis, interpretation, and mode of implementation.”

  1. A Degree of Pluralism in Respecting Human Rights Does Not Imply Cultural Relativism

“The scope for diversity in bringing human rights to life is circumscribed by the duty to ‘promote and protect all human rights and fundamental freedoms,’ and by the . . . [requirement] that all rights must be exercised with due respect for the rights of others and that its rights may be subject to “such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

  1. Nation-States Have Some Leeway To Base Their Human Rights Policy on Their Own Distinctive National Traditions

Yet such policies must be “consistent with the overarching conviction affirmed in Article I of the UDHR that ‘All human beings are born free and equal in dignity and rights.’”

  1. Certain Distinctions Among [Human Rights] Are Inherent in the [UDHR] . . .,as Well as in the Positive Law of Human Rights

“U.S. foreign policy can and should consider which rights most accord with national principles and interests at any given time. Such judgments must take into consideration both the distinctive American contributions to the human rights project and also prudential judgments about current conditions, threats, and opportunities.”

However, “some international norms, like the prohibition on genocide, are so universal that they are recognized as norms of jus cogens — that is, principles of international law that no state can legitimately set aside. The application of certain human rights demands a high degree of uniformity of practice among nations, as in the prohibition of torture, while others allow for considerable variation in emphases.”

  1. Freedom, Democracy, and Human Rights Are Indissolubly Linked

This “invites a [U.S.] commitment to the promotion of individual freedom and democratic processes and institutions as central to the U.S. human rights agenda. By the same token, it counsels considerable deference to the decisions of democratic majorities in other countries, recognizing that self-governance may lead them to set their own distinctive priorities. The U.S. promotion of fundamental rights should always be sensitive to the outcomes of ordinary democratic politics and the legitimate exercise of national sovereignty, and wary of rights claims that seek to bypass democratic institutions and processes.”

  1. Social and Economic Rights Are Essential to a Comprehensive [U.S.] Foreign Policy

The U.S. was a major supporter of the indivisibility principle as well as the aspiration for “better standards of life in larger freedom” . . . in the UN Charter and the [UDHR] Preamble.” For the U.S.,  implementation of these rights were “left up to each nation.” A “minimum standard of living is essential to the effective exercise of civil and political rights.”

  1. New Claims of Rights Must Be Carefully Considered”

“The effort to shut down legitimate debate by recasting contestable policy preferences as fixed and unquestionable human rights imperatives promotes intolerance, impedes reconciliation, devalues core rights, and denies rights in the name of rights. In sum, the [U.S.] should be open to, but cautious in, endorsing new claims of human rights.”

  1. National Sovereignty Is Vital to Securing Human Rights”

The U.S. “should resist attempts at creating new rights through means that bypass democratic institutions and procedures, or that are inconsistent with the understandings on the basis of which the [U.S.] entered into international agreements. {The U.S. also] should respect the independence and sovereignty of nation-states to make their own moral and political decisions that affirm universal human rights within the limits set forth in the UDHR.”

  1. The Seedbeds of Human Rights Must Be Cultivated

“Respect for human rights must be cultivated, and the promotion of basic rights is only one element in building the kind of societies that promote human flourishing in all its dimensions. . . . The collective effort since 1948 to translate the UDHR’s broad principles of human rights into binding legal commitments through a network of treaties has achieved laudable results.”

As Eleanor Roosevelt said on the tenth anniversary of the UDHR, “Protection of human rights is a never-ending struggle, one that involves a nation’s sense of its own principles and purpose. . . . The surest protection of human freedom and dignity comes from the constitutions of free and democratic states undergirded by a tolerant, rights-respecting culture. As in the case of the United States’ distinctive rights tradition, the maintenance of the international human rights project will require attention to the ‘small places’ where the spirit of liberty is rooted, nurtured, and cultivated.”

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[1] See U.S. Commission on Unalienable Rights Is Launched, dwkcommentaries.com (July 8, 2019); State Dep’t, Charter for the Commission on Unalienable Rights; State Dep’t, Commission on Unalienable Rights, Member BiosSee also List of Posts to dwkcommentaries—-Topical: U.S. Commission on Unalienable Rights.

[2]  State Dep’t, Policy Planning Staff, Commission on Unalienable Rights; State Dep’t, Public Submissions to the Commission [on Unalienable Rights].

[3] State Dep’t, Draft Report of the Commission on Unalienable Rights (July 16, 2020).

[4] The Commission Chair, Mary Ann Glendon, is a noted authority on the UDHR. See Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House 2001). See also Human Rights Commentaries by Mary Ann Glendon, Chair of  Commission on Unalienable Rights, dwkcommentaries.com  (Nov. 2, 2019).

 

 

 

Pandemic Journal (# 27): More Reflections on the Pandemic

The July 26 New York Times proclaims the statistics of the pandemic’s toll: [1]

  • For the world, there have been 16,034,200 cases in nearly every country with 644,925 deaths while the number of new cases is growing faster than ever with a daily average of more than 200,000.
  • The U.S. (including four territories), with at least 4,190,400 total cases has the most of any country in the world while recoding 146,314 deaths. “Case numbers are surging throughout most of the United States, including in many states that were among the first to reopen. Because the number of people hospitalized and the percentage of people testing positive also are rising in many of those places, the case spike cannot be solely explained by increased testing. Still, coronavirus deaths remain well below their peak levels. And as some places reimpose restrictions, others continue to reopen their economies.”
  • The State of Minnesota has had at least 50,331 cases and 1,611 deaths. “Over the past week, there have been an average of 689 cases per day, an increase of 22 percent from the average two weeks earlier.”

The pandemic has been having and continues to have a major negative impact on the world and U.S. economies. For the week ending July 25, the initial U.S. jobless claims rose to 1.4 million. This increase was the first in nearly four months, “a sign the jobs recovery could be faltering.” Now the $600/week jobless aid is nearing an end. Evictions loom for millions who cannot afford their rent while foreclosures loom for homeowners who cannot pay their mortgages. And the U.S. federal government recorded a budget deficit of $ 3 Trillion for the 12 months ending this June.[2]

These calamities have had a disproportionate impact on our African-American brothers and sisters. For example, in Minnesota 48% of Black workers have filed for unemployment compensation versus 22% of white workers. “One of the big reasons for the unemployment disparity in Minnesota is that Black Minnesotans are more likely to be employed at hotels, restaurants, retail, health and other service-related industries that have seen the most job losses because of stay-at-home orders and other pandemic-induced slowdowns.” In addition, “the pandemic also has disproportionately hurt American Indian, Latino and Asian American employment in the state. Women, younger workers and those with less education have also taken a bigger hit.”[3]

In the midst of these immense problems and challenges, President Trump continues to lie and demonstrate his incompetence. As a result, the rest of the world is shocked and dismayed.[4] I worry that Trump will attempt in some fashion to try to steal the election.[5]

Although I am retired with good health and financial savings and thus not personally affected (so far) by these woes, I worry about the impact of these crises on my sons and grandchildren. More generally I am worried about the negative impact of these crises on people and countries all over the world and the U.S. in particular that will linger for all their lives as I believe happened to those who lived through the Great Depression of the 1930’s.

“Investing in the Future” was the sermon today at Westminster Presbyterian Church by Associate Pastor Sarah Brouwer. It drew upon Jeremiah 19: 1-14, where the Prophet sends a letter to the Jewish people who have been taken into exile in Babylon after the Babylonians had destroyed the Temple in Jerusalem. God tells the exiles, “Build houses and live in them; plant gardens and eat what they produce. Take wives and have sons and daughters; take wives for your sons, and give your daughters in marriage, that they may bear sons and daughters; multiply there, and do not decrease. But seek the welfare of the city where I have sent you into exile, and pray to the Lord on its behalf, for in its welfare you will find your welfare.”

This passage of Jeremiah continues. “Only when Babylon’s seventy years are completed will [the Lord] visit you, and I will fulfill to you my promise and bring you back to [Jerusalem]. For surely I know the plans I have for you, says the Lord, plans for your welfare and not for harm, to give you a future with hope. Then when you call upon me and come and pray to me, I will hear you. When you search for me, you will find me; if you seek me with all your heart, I will let you find me, says the Lord, and I will restore your fortunes and gather you from all the nations and all the places where I have driven you, says the Lord., and I will bring you back to the place from which I sent you [Jerusalem] into exile.”

According to Rev. Brouwer, this passage reminds us today to shed our expertise and judgment, relearn old ways and accept marginal status in the current pandemic in order later to flourish.

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[1] Coronavirus Map: Tracking the Global Outbreak, N.Y.Times (July 26, 2020, 9.21 a.m. EDT); Coronavirus in the U.S.: Latest Map and Case Count, N.Y.Times (July 26,2020, 9.21 a.m. EDT); Minnesota Coronavirus Map and Case Count, N.Y.Times (July 26,2020, 9:21 a.m. EDT); Hyatt, Minnesota COVID-19 cases up by 871; 3 more deaths reported, StarTribune (July 26, 2020). See also List of Posts to dwkcommentaries–Topical: Pandemic Journal.

[2] Davidson, Coronavirus Spending Pushes U.S. Budget Deficit to $ 3 Trillion for 12 Months Through June, W.S.J. (July 13, 2020); Kiernan, Evictions Loom for Millions Who Can’t Afford Rent, W.S.J. (July 16, 2020); Chaney & Mackrael, Jobs Recovery Shows Signs of Slowing as Coronavirus Surges, W.S.J. (July 17, 2020);Benoit, What Banks Tell Us About Business: Everybody Is Struggling, W.S.J. (July 18, 2020); Morath & Chen, As $600-a-week Jobless Aid Nears End, Congress Faces a Quandary, W.S.J. (July 19, 2020).

[3] Kumar, Half of Black workers in Minnesota have lost work during pandemic, StarTribune (July 18, 2020).

[4] E.g., Achenbach, Wan, Brulliard & Janes, The crisis that shocked the world: America’s response to the coronavirus, Wash. Post (July 19, 2020).

[5] E..g., Sonmez, Trump declines to say whether he will accept November election results, Wash. Post (July 19, 2020). See also, Election Officials’ Dread About This Year’s U.S. Election, dwkcommentaries.com (July 11, 2020).