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The Supreme Court opens its new term with a case that raises the stakes dramatically in the politics of fetal rights. At issue in Ferguson v. City of Charleston is whether a public hospital violates the Constitution when it tests pregnant women for drug use and turns over positive results to the police without so much as obtaining a search warrant.
Medical professionals and the general public agree that it is not desirable for pregnant women to use drugs. But this case raises a different question: Do women forfeit basic constitutional rights to equal treatment, due process and protection against unreasonable searches and seizures when they become pregnant?
South Carolina has been a leader in the movement, building ever since Roe v. Wade legalized abortion, to establish rights for fetuses. No state has done more to target pregnant women who use drugs. Starting in 1989, the Medical University of South Carolina (MUSC) invited the police and local prosecutor to help implement a policy directed at prenatal-care patients. Women who came to MUSC, the only facility for indigent patients in Charleston, were threatened with arrest if they tested positive for drugs. Some were jailed for the duration of their pregnancies (surely not an optimal environment for pregnant women's health), and others were jailed after giving birth, still in their hospital gowns. All but one were black. The crimes they were charged with--drug possession, child neglect and distributing drugs to a minor--carried penalties of two to twenty years.
South Carolina Attorney General Charles Condon has said, "There is no constitutional right for a pregnant mother to use drugs." True enough. But the Constitution does guarantee rights of personal liberty and due process, which in turn require that all people, regardless of race or gender, be treated fairly and equally under the law. And the Charleston police department has never arrested a male hospital patient and charged him with possessing drugs on the basis of a positive urine test.
The real issue is how to respect pregnant women's constitutional rights while improving their (and their future children's) chances of a good outcome. The state maintains that the "stick" of criminal intervention is necessary to make its policy of "encouraging" pregnant women to get treatment effective. But at the time the policy took effect, there was not a single residential drug-abuse-treatment program for women in the entire state. MUSC itself would not admit pregnant women to its treatment center. And no outpatient program in Charleston provided childcare so that pregnant women with young children could keep their counseling appointments.
Finally, arresting women after they give birth does nothing to promote a healthy pregnancy or newborn. This practice also hinders the basic goals of keeping families together and promoting family stability through the provision of rehabilitative services instead of punishment.
Condon has made plain his desire to challenge the premise underlying abortion law: that a fetus is not a person in the constitutional sense and has no rights of its own. In 1998 he told the Washington Times that he would be "proud" and "very pleased" to defend his policies, "even in terms of reversing Roe v. Wade."
Faced with sanctions and the loss of federal dollars when the federal government investigated MUSC for ethics violations and discrimination against African-American women, the hospital suspended its policy in late 1994. But the program's architects got a boost when the State Supreme Court ruled in 1996 that a viable fetus is a person under the children's code, a ruling that the US Supreme Court allowed to stand. Condon then instructed district attorneys around the state to prosecute for "child abuse" women who take drugs during pregnancy.
Because most women in the United States get pregnant at least once in their lives, the practical and political implications of the Supreme Court's decision in Ferguson v. City of Charleston will be enormous. Fetal rights advocates recently scored a victory in Massachusetts when a judge entered an order of protection on behalf of a fetus and took a pregnant woman into state custody. The state alleges that the woman let her last baby die shortly after birth but has not charged her with any crime. If the Court upholds South Carolina's policy, it will encourage similar actions, effectively putting American women on notice that if they become pregnant, their lives are no longer their own.
One of the most haunting images in David Riker's film La Ciudad is of the New York City skyline seen from a work site miles away from midtown. There, a group of Hispanic dayworkers scrape off bricks, carry them to a designated area and pile them neatly on top of one another. No one, including the film viewer, seems to know where he or she is. The images evoke a vivid sense of place/
no-place that reflects the condition of multitudes of Hispanic immigrants to this country--not as much the ones like my parents, whose sense of place had as much to do with their schooling as with their new geography, but immigrants who enter the global Norte in search of a way out of strife and into life itself--improvement, fulfillment of dreams, a future that will be better than now. Like many Latin American renderings of reality, the reality of La Ciudad is informed by the imaginary.
While Juan Gonzalez's Harvest of Empire deals with reality in a conventional sense--it is filled with charts, numbers and facts--his book cannot help conjuring up a series of past and present constructions of what it is to be Latino (or Hispanic, or Latin American, or Spanish-American, or Spanish-speaking, all identities modified by residence, however brief, in the Coloso del Norte). Indeed, a more diverse group is difficult to fathom, as Gonzalez makes clear not only through his facts but by the very structure of the book. He covers more than 500 years of history; the internal politics (historical and actual) of scores of countries; racial, gender and class conflicts within the multifarious national groups; varying US government immigration policies and practices; and all this in an attempt--a welcome one in my opinion--to create a sense of unity among all the ethnicities calling themselves Hispanic and living in America (capital: Washington). Imagine the difficulty: What could a Kanjobal indigenous-language-speaking peasant fleeing Guatemalan repression in 1980, who might later work in the tomato fields of South Florida, possibly have in common with a black Panamanian ex-cop (son of a West Indian) who left his country for New York out of guilt for having participated in quelling an anti-US demonstration and now is in the Air Force living in Alaska? These are two real people whose cases are discussed in Gonzalez's Harvest, or better yet, harvests. Yet in light of all the peaches and pairs, Gonzalez has made a compelling case for unity.
A veteran of sixties left politics--co-founder of the Young Lords--and now co-host with Amy Goodman of Pacifica Radio's Democracy Now!, Juan Gonzalez lays out those figures and charts in the service of what some in cultural studies might call his "subject-position," a position he never disguises in a voice of academic objectivity. His subject reads as follows: "I was born in 1947 to working-class parents in Ponce, Puerto Rico. My family brought me to New York City's El Barrio the following year and I have lived in this country ever since. As a journalist, and before that as a Puerto Rican community activist...
I have spent decades living in, traveling to and reporting on scores of Latino communities...devouring in the process every study or account of the Latino experience I could find." And his position: "Mine is the perspective of a Latino who has grown tired of having our story told, often one-sidedly, without the passion or the pain, by 'experts' who have not lived it." Indeed, we hear the voice of a hard-hitting social critic from the inside.
Gonzalez shows not only his advocacy/journalistic flair for making a convincing case but also a sense of narrative. His accounts of Puerto Rican immigration along with his own family history--a story that could have been an added segment of Riker's film--give him an air of authority, but always an authority that leaves itself open to other authorities, which includes anyone with a border-crossing tale to tell. And there are many in this book.
Gonzalez's subject-position notwithstanding, the force of the facts is a crucial dimension of his narrative. There are several important depictions of Hispanic immigrant reality in Harvest of Empire that have not been given the attention they deserve. Perhaps the most important is that The United States Empire--this designation is not taken lightly--has at once created and fed on Hispanic immigration. The expansionist policies of the nineteenth century, including the military annexation of a great chunk of Mexico, the cold war obsession with a perceived Soviet threat and the enrichment of US-based corporations through exploitation of Latin American labor and raw materials are the foundation for the desire of our neighbors to the (global) South to move to the (global) North. And once over the frontier of El Norte, Hispanic immigrants further the enrichment of US elites by providing cheap labor. For Gonzalez, this foundation places US government officials in a hypocritical position of decrying the effects of demographic movement northward--welfare payments made out of the pockets of US citizens, rising crime, drug trafficking, general social disintegration--when US financial elites have caused and benefited from them. Surely we have heard the indictment about US world domination before, especially in the pages of The Nation (not as often in the mainstream, though), but what makes Gonzalez's take unique, I think, is that he frames the critique within the specific realities of Hispanics living in the United States. Note one of many examples: The consequences of the repeated annexation of Mexican territory between 1836 and 1853 were as lucrative for the isolated yeoman culture that characterized the United States at that time as they were devastating not only for the Mexican residents living in those vast territories but for Latin America as a whole. Mexico lost half its land and major mineral resources, and the new US territory would later pave the way for cheap labor for US corporations.
Another argument in Gonzalez's "harvest" is that the Hispanic influx is different from other immigrations to this country. It is not that the Hispanic situation is unique; in fact, Gonzalez uses other immigrant experiences as models for comparison. It is rather that certain dimensions of late-twentieth-century capitalism (on the global scale) have made for differences. Hispanic immigration is occurring at a moment when multinational corporations enjoy a prosperity and control over markets that were not the case during previous periods of high immigration to the United States. In addition, the fluidity of Hispanic immigration--the fact that many Spanish speakers come here with the intention of returning, an intention realized in many cases because of the greater accessibility of travel--is different from previous patterns. Moreover, what makes Hispanic immigration different, perhaps more in quantitative than qualitative terms, is the relative importance and unity created as the result of language. The polemic over language instruction, the use of Spanish on the job and in the media, its marker as a definitive ethnic trait that transcends national boundaries, the debate about the United States as a bilingual nation by definition--all serve to strengthen Gonzalez's insistence that we as US citizens would do well to pay more attention to Hispanics regardless of the European ethnicities that, as Todd Gitlin puts it in The Twilight of Common Dreams, are chosen like flavors of ice cream. Mexican society recently witnessed a political transformation that is sure to have far-reaching consequences for all US residents. Yet if our media continue to focus their attention on the pathetic Hispanic imaginary, i.e., the Elián Show, we will remain unprepared for these repercussions.
There is no end to this in sight, says Gonzalez, which is another argument in his crop. The much-mentioned statistic that, by the mid-twenty-first century, one in four US citizens will be Hispanic is simply one projection out of many that point to the writer's hope (along with that of José Martí) that North America will come to know the other America, so that it will cure itself of its scorn. More and more Hispanics are becoming citizens; the median age of Hispanics is far younger than that of most other Americans; there is a rising political consciousness among Latinos, as well as a rising middle class; and all this is occurring as free-trade ideology is wreaking economic havoc on the people most in need of improvement of material conditions in their native lands.
No, there is no end in sight. If I may add a Midwestern story to Gonzalez's all-encompassing one, I'll point out that we've got troubles too, right here in mid-Missouri. Sedalia, Marshall and Mílan--communities that I'm sure the sophisticated Latinos of San Francisco would consider pueblachos de mala muerte (cowtowns)--have seen dramatic increases in their Hispanic populations because of work opportunities in the meatpacking industry. Outside of a few gruesome accidents and violations of child-labor laws, we don't have major problems (yet). But what if the boom economy runs out of steam? What if there are layoffs of these hard-working young women and men?
The images of La Ciudad that caught my imagination return. Perhaps the shot of the New York skyline from that working no man's land lurks in our memories because it fuses a cityscape with the lives of people, people whom we first see as others. Yet with the wide angle, we come to know them as mirrors of ourselves. Carlos Fuentes puts it poignantly when, in The Buried Mirror, he evokes without mentioning it the North/South division that is the mainstay of Gonzalez's discussion:
California, and in particular the city of Los Angeles facing the Pacific basin, the North American bridge to Asia and Latin America, poses the universal question for the coming century: How do we deal with the other? North Africans in France; Turks in Germany; Vietnamese in Czechoslovakia [before the division]; Pakistanis in England; black Africans in Italy; Japanese, Koreans, Chinese, Latin Americans in the United States. Instant communication and economic dependence have transformed the once isolated problem of immigration into a universal, definitive and omnipresent reality.
In campaign speeches George W. Bush repeats Al Gore's defense of his 1996 campaign fundraising phone calls from his government office--"there is no controlling legal authority"--so often that it's become a stock line in Bush's stump remarks. Attorney General Janet Reno's recent refusal of Republican requests to refer Gore's alleged violation of federal law to an independent counsel gave the GOP an opening to heap even more verbal abuse on Gore. Gore's words, spoken at a press conference three years ago, although including a phrase common enough among lawyers, were widely perceived at the time as defensive or evasive. His use of the phrase was judged by many commentators to have been a political mistake of the first order.
Ironically, it was also a legal mistake. There was and is "controlling legal authority" that actually favors Gore: It is the Constitution of the United States. The law he allegedly violated--Section 607 of the US Criminal Code--would very likely be found unconstitutional if it was ever tested in court.
Section 607 makes it a felony "for any person to solicit or receive any contribution...in any room or building occupied in the discharge of official duties." Attorney General Reno determined that Section 607 covers only "hard money" campaign contributions. Gore testified that he believed that the sums he was soliciting were "soft money." Thus, Reno concluded there was nothing to prosecute and no reason to appoint a special prosecutor.
But Reno's narrow technical explanation for exonerating Gore did not dispel, and may have compounded, the fallout from the "no controlling authority" rationale. A compelling constitutional authority is a much firmer vindication.
The constitutional failing of Section 607 is that it does not require proof of criminal intent. Section 607 says "any person who violates this section shall be fined under this title or imprisoned not more than three years, or both." The three-year maximum sentence makes every violation of Section 607 a felony--even when those involved had unintentionally failed to comply with the law's technical requirements. The Federal Criminal Code (like that of most states) defines a felony to include any offense punishable by imprisonment of more than a year. Every felony is also an "infamous crime" as that term is used in the Constitution. (The Fifth Amendment guarantees that no person may be prosecuted for an "infamous crime" unless a grand jury votes to charge him in an indictment.)
The concept of a felony that does not require criminal intent is jarring to every law school graduate who studied Justice Robert Jackson's classic opinion in the Supreme Court case Morissette v. United States (1952). In his ruling, Jackson traces back to Blackstone's famous eighteenth-century book of Commentaries the Anglo-American concept that a crime requires a "vicious will" in addition to a prohibited act. Jackson states the governing principle this way: "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil."
Applying this principle, the Supreme Court threw out the conviction of Morissette, who had been found guilty of the crime of "converting" (i.e., stealing) government property because he had taken and sold some rusty and apparently abandoned bomb casings that were lying around the grounds of a military bombing range. The Court roundly rejected the trial judge's instruction to jurors that Morissette's belief that the casings had been abandoned by the government was no defense against the criminal charge of stealing government property. The Supreme Court ruled that proof of a criminal intent on Morissette's part was required to convict him of being a thief.
The due process clause of the Fifth Amendment was designed to preserve the fundamental principles of fairness that the Anglo-American legal tradition recognized in Thomas Jefferson's time. The lawyers who framed, adopted and ratified the due process guarantee of the Bill of Rights were steeped in the study of Blackstone and would surely have considered a requirement to prove criminal intent for an infamous crime a fundamental principle of Anglo-American jurisprudence, a part of the "due process of law" that their Bill of Rights guaranteed.
The due process clause, along with Blackstone's Commentaries and cases such as Morissette, thus provides "controlling legal authority" that should protect the Vice President, or any other officeholder or citizen, from being prosecuted under the felony-without-fault provisions of Section 607. The Vice President and the nation would have been better served had the Attorney General recognized this as a controlling basis for denying the requests for an independent counsel--and had she done so three years ago, before Gore invoked the infelicitous phrase that there is "no controlling legal authority."
We don't have a TV at home, so we've missed the much-drubbed NBC Olympics coverage. So when a little friend of my son's said she'd been watching, I asked her if any of the events had inspired her to want to be an Olympic athlete when she grew older.
"Yeah!" she raved. "Just wait! I'm gonna be a rock star and I'll ride onto the field with my helmet on my head and my crossbow on my back and I'm gonna have a band and six backup singers, and then when they light the torch, all the soldiers I've been saving in my disk drive are gonna burst onto the screen and do a dance and then there'll be fireworks, fireworks, fireworks, boom, boom, kaBOOM! Like you've never seen before!"
Flushed from such imaginative exertions, this dangerous little person ran off with my precious son, she humming a tune by Britney Spears, he shouting a song by the Backstreet Boys. (It was a perfect fugue, by the way. Has anyone else noticed that Britney is just Lance hung upside down and played backwards?)
Each culture develops its own sense of sport, I suppose. When I travel, I confess I make up for the deprivation at home by watching a lot of hotel-room television. I am always fascinated to see the kinds of competitive sports that people will sit up late for in other parts of the world. I've been to Edinburgh during sheepherding finals (sort of a par course for sheepdogs grafted onto a running of the bulls, except with large shaggy rams. Like Babe, but vicious). I've spent time with friends in Minnesota where ice fishing--which is, I assure you, one of the slower sports known to mankind--took up Real Time in dinner party conversation.
Once I spent five days in a small German town in a university dormitory built on the site of what had been a Nazi bank vault. This being truly the belly of the beast, I was not at all surprised when the heat went out the moment I got there. Within hours, I fell sick with a raging fever, my body temperature rising with each degree the room temperature fell. As I lay shivering beneath the thin cotton blanket, I used my last ounce of strength to flick through the channels on the steel television set (which was bolted to a fixed rod hanging from the ceiling, like the ones in hospitals or prisons). Aside from the ubiquitous CNN, all the available stations were displaying the same sporting event--in German, Swiss German, Farsi, Turkish and Basque. The event in question appeared to be a particularly formal version of Austrian dressage: horses with knotted manes and beribboned tails prancing rigidly through backbreakingly unnatural placements and postures, two-stepping, then waltzing to martial music. The riders, who wore high hats and polished boots, put the animals through their paces with the reins tightened so as to hold the horses' necks upright, the bits so tight the horses looked as though they were leering. The riders were tense and ferocious. The horses were precise, wild-eyed, slobbering with foam.
In happier times, I've been to the far north, up around the Arctic Circle, where Icelandic log-tossing is what in other climes might be called "hot." These are not little logs we're talking about, if the broadcast I saw is any measure--contestants trained by hoisting Yugo minivans on their backs. Indeed, in a side event to the log-toss, they ran a course where every thirty feet or so they stopped to pick up a 350-pound block of stone and chuck it in a rain barrel. "These Icelandic strong men" the voiceover explained, "consume from eight thousand to ten thousand calories a day"--a conceivable goal if, like me, you're thinking of the energizing properties of Ring Dings and marshmallow fluff, but an impressively ambitious one when you learn that a professional log-tosser's diet is fat- and sugar-free.
In South Africa, I once watched a spoofy (I think) combat in which a white gladiator and a black gladiator battled each other up the sheer face of a wall, the goal being not just to reach the top first but to dislodge your opponent so that he has no chance of ever making it up.
Then there's Wisconsin, where, back in the eighties, I lived through three deer-hunting seasons. The season was only nine days long but with more than 600,000 licensed hunters on the prowl, around 260,000 deer could expect to meet their maker within that time. "I guess they have bad aim," said my sister dryly when she heard this bit of data, but the truth is they did indeed have exceedingly bad aim. If memory serves me, Wisconsin was the only state that actually gave blind people a license to shoot. I was told they had to wear a neon-red sign that said: blind hunter (thus giving other blind hunters the chance to duck, I suppose).
Not only did more deer die at that time of year than at any other, more Wisconsiners did too. So the real suspense of the daily television tally was always the human toll, not the animal. Lost bullets seeking their mark took shortcuts through people's breakfast nooks and open bathroom windows and attic hideaways. Stray bullets always caught people by surprise in the middle of some intensely private act. Not that every such death was a complete surprise: One year the sheriffs and game wardens got worried about hunters who shot across busy highways at deer on the other side. So they set up lots of deer decoys by the sides of lots of busy highways to catch the sort of people who would do such a thing. Many of us just hid in the basement until they thought the logic of that one over.
I'm optimistic that we humans will always express our sporting instincts in locally interesting and richly varied ways. Indeed, a recurring criticism of the NBC coverage has been precisely its homogenization of the Olympics--the sappy human interest, the weepy mood music, the breathlessly overdramatized replays. But when I think about what the youngest consumers of American sports culture are exposed to as routine athletic fare, I guess it's no wonder some of them would opt for the halftime song-and-dance act. They already know that too often the real action is played out in culturally revealing games like the Bobby Knight Memorial chair-tossing competition, Hide and Seek the Steroids, the Million Dollar Endorsement Dash, Soccer Mom Slugfest and Hockey Dad Death Match.
Open access to the broadband Internet is essential if we are to insure that a diverse range of voices has a chance of reaching out to citizens in the new era of high-speed communications.
To the Rehnquist Court, criminal justice is all too often a technical matter best left to the states.
Instead of kissing babies, this year the pols are bashing youth culture and the companies that promote it.
The project of racial reconciliation and historical correction is "constitutional" in the deepest, multiple senses of that word.
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