Will history be the judge? Does the arc of history bend? Figures of speech both reflect and shape our expectations.
My constitutional law professor thought the courts should have ended “separate but equal” education not by finding it unconstitutional, but by enforcing equal funding for all schools, making segregation financially unsustainable. It is easy from this distance to consign him to the wrong side of history. We call “the right side” the one that wins out in the long run as accepted and wise. Three problems with this notion:
When truth is stranger than fiction, a little old-fashioned murder and mayhem offers respite. Crime Writers of Color led me to FIB agent Jade Harrington (Don’t Speak, below) a few months back. Other novels of presidential elections may ease the weeks ahead.
“What was a restaurant, Grandpa? What was it like to go to school with kids who weren’t in your pod?”
If you are tempted to write dystopian science fiction set in the After Time, start now. In the tale playing in my head, food shortages from perpetual fires and hurricanes have driven the United States into a rigid caste system, with the ruling class leaving the rest just enough food to perform essential labors. As loss of habitat increased human-wildlife interactions and resultant pandemics, extended family groups within each caste have withdrawn into fortified pod-housing. Story line: Teens from different castes form a forbidden friendship and scheme to cross the militarized border into Canada.
This is fiction, not prediction. We could just as well emerge into greater compassion, personal and economic security, freedom, justice, and mutual respect. It would be welcome but not the basis for a page-turner. In that world, you might prefer to write historical fiction about the Before Time and how so much, temporarily, went so wrong.
“The court has no troops at its command. It doesn’t have the power of the purse. And yet, time and again, when the court says something, people accept it.”
- Ruth Bader Ginsburg on NPR’s All Things Considered, July 24, 2019
Isn’t it odd how the fate of a major legislative act can hang on a single vote in a 5-to-4 Supreme Court decision? People accept it because we envision justices above the political fray, guided only by wisdom, precedent, and the Constitution. Their decision stands until a future court overturns it, perhaps again by a single vote.
Such cases were extremely rare in the 1800s and early 1900s.* Courts strove for unanimity and consensus, debating behind closed doors until they could speak with a single voice. The proportion of closely split decisions rose gradually after the 1930s. Brown v. Board of Education (1954) was unanimous; Roe v. Wade (1973), 7 to 2; Citizens United v. FEC (2010), 5 to 4.
I wonder if the rise in 5-to-4 decisions heightens the frenzy around each Supreme Court nomination. Focus shifts from the whole court to individual justices, and from their wisdom and experience to their potential vote on a given issue. Gamesmanship increases. “Settled law” begins to look provisional. Over time, might this trend weaken the court’s perceived authority and our system of checks and balances? Might it be better to defer judicial action until the argument for change is so strong, the evidence so overwhelming, that at least seven of the nine justices can agree?
*A single vote decided an annual average of only 2.6% of cases in 1901-1910, compared to 23% in 1981-1990. Robert E. Riggs, “When Every Vote Counts,” Hofstra Law Review, 1993.
My first case as a juror was a civil suit in federal court. The central question was whether police applied excessive force in using a stun gun to remove a noisy drunk from an icy rooftop after the neighbors complained.
Two lessons stay with me decades later. First, thinking you’re unbiased doesn’t make you so. I hope we all meant it when we promised we could judge impartially based on the evidence. As foreman, I wanted to throttle a juror who insisted whatever a cop said must be true, and another who said the same of any complaint against a cop. We took as many days to agree on a verdict as to hear the evidence.
Second, it’s not always as simple as yes or no. Could the police have restored neighborhood peace without the stun gun? Of the four who testified, we thought one had the skills to talk the guy off the roof. Unfortunately, that cop was down on the street. The less articulate cop on the roof, if he hadn't had the stun gun, might have gotten into a tussle in which he and the noisy drunk would have slid off the roof and broken both their necks.
Spain remained neutral in World War I. While combatants censored the press to sustain morale and hide any vulnerability, Spain had no such concerns. Spanish newspapers freely reported a raging influenza in May 1918 and the months that followed. The earlier cases recorded at Fort Riley, Kansas, in March got no publicity. Americans and others, hearing nothing but reassurance from their own governments, took Spain to be the epicenter.
No one knows for certain the birthplace of the “Spanish flu” of 1918-19, which killed more people than the war. The Spanish called it the French flu. Germans called it Flanders fever. It spread fast, and everyone blamed somebody else.
For Americans, calling the epidemic “Spanish” fits a long, unsavory linkage of germs with foreigners and immigrants. We had the Asian flu of 1957-58 and the Hong Kong flu of 1968-69. And then there was H1N1 or the swine flu of 2009-2010, first detected in a ten-year-old boy in California. Remember how everyone called it the American flu?
You don't? Neither do I.
In the Boston Tea Party of 1773, a rowdy mob of American colonists dumped a shipload of tea into the harbor to protest a new tax. Unruly demand for change is a deep-rooted American tradition. So is the call for “law and order” to defend the status quo.
Against wider suffrage. In Rhode Island in the 1840s, armed protesters demanded voting rights for all white men regardless of wealth. Opponents formed a Law and Order Party to preserve the old colonial charter, which allowed only men of property to vote.
Against abolition. “Bleeding Kansas” in the 1850s was awash in violence between pro-slavery and anti-slavery factions. A pro-slavery Law and Order Party accused its opponents of criminal fanaticism and met bloodshed with bloodshed.
Against alcohol. In the later 1800s and early 1900s, temperance sentiment was strongest among Protestants of English descent. Disdainful of beer-drinking Irish and German Catholic immigrants, they formed local Law and Order Leagues to enforce anti-liquor ordinances.
In each case, law and order won out in the short run. The expanded-suffrage leader in Rhode Island was sentenced to life in prison. Questioning the legality of slavery in Kansas could bring five years imprisonment. The 18th Amendment made Prohibition federal law. In the longer run, social change proved beyond the power of law and order to prevent.
No country or organization could have done it alone. Just as viruses aren’t constrained by international boundaries, neither are successful efforts to conquer them. Last week’s certification of Africa as free of wild poliovirus is an achievement in global partnership.
African soccer teams in the 1990s raised awareness with a campaign to “Kick Polio Out of Africa.” African rulers and frontline health workers worked hard for that goal. WHO did strategic planning. UNICEF managed vaccines. CDC headed a global laboratory network. Massive support came from Rotary International, the Bill & Melinda Gates Foundation, and dozens of donor governments.
Collaboration and commitment made this achievement possible. What other viruses might we conquer if we decide to work together?
My city-bred mother relished the novelties of rural West Virginia. She drove my brother and me to hand pumps outside one-room country schoolhouses, church ladies’ quilt sales on farmhouse lawns, and Eleanor Roosevelt’s experimental community at Arthurdale. The mailbox at the end of our street, which excited me with the possibility of a new Donald Duck or Mickey Mouse, inspired her for its tie to the birthplace of Rural Free Delivery.
Urban door-to-door mail delivery became common after the Civil War. Farmers asked, why must we travel miles into town to pick up our mail, when we pay as much for stamps as everyone else? Pressure from the National Grange and the Farmers’ Alliance overcame Congress’s reluctance to fund vehicles, road improvements, and rural carriers. The Post Office began experimental routes in West Virginia in 1896. RFD expanded quickly and became permanent in 1902.
Long before American farm families had radios, telephones, or electricity, RFD connected them to the wider world. Rural delivery would never turn a profit. That was not the intent. Like roads and schools, universal postal service helped unite the nation and served the public good.
In my grade school long ago, each day began with the Pledge of Allegiance and a patriotic song. Recent events have me asking, to what were we pledging? The flag is a potent symbol, but of what?
Nation emphasizes people; country emphasizes place. “One nation indivisible” asserts a shared American culture, which my teachers called a melting pot. Historian Frederick Jackson Turner thought an American ethos of self-reliance and individualism arose from the interaction of people with place on the American frontier. “A thoroughfare for freedom beat across the wilderness,” we sang. “Through every mountainside, let freedom ring.”
What our public officials and military personnel swear to uphold, however, is neither people nor place, nor any individual or agency, but the United States Constitution. The patriotic songs in my grade school didn’t mention it. It lacks the clarion call of “land of the free, home of the brave” or the tenderness of “land that I love . . . my home, sweet home.” Only in high school and beyond did I realize the Constitution's primary claim on my allegiance as an American.
I'm a historian who writes novels and literary nonfiction. My home base is Madison, Wisconsin.