News and Features
During the Kosovo crisis of last year, it was commonplace if not routine to hear two mantras being intoned by those who had decided that "never" would be about the right time to resist ethnic cleansing with a show of force. We were incessantly told (were we not?) that NATO's action would drive the Serbs into the arms of Slobodan Milosevic. And we were incessantly told (were we not?) that the same NATO action would intensify, not alleviate, the plight of the Kosovar refugees. Now there has been an election that was boycotted by almost all Kosovars and by the government of Montenegro. And even with the subtraction of these two important blocs of opposition voters, it is obvious that Milosevic has been humiliated, exposed, unmasked, disgraced.
Every five years the psychologist Judith Wallerstein updates her ongoing
study of 131 children whose parents were going through divorce in Marin
County, California, in 1971, and every five years her warnings about the
dire effects of divorce on children make the headlines, the covers and
the talk shows. Her new book, The Unexpected Legacy of Divorce,
ups the ante: She now believes that parents should grit their teeth and
stay together, so traumatized were her interviewees even into their 20s,
contending with drugs and drink, bad boy-friends, unsatisfactory jobs,
low self-esteem and lack of trust in relationships. Before you young
cynics out there say welcome to the club, remember: This is not a
moralistic sermon dreamed up by Dr. Laura, the Pope, your relatives or
even Judith Wallerstein. This is science.
But what if it isn't? Scholars have long been critical of Wallerstein's
methods: She had no control group--kids just like the ones in her study
but whose unhappily married parents stayed together. (In her new book
she has attempted to get around this flaw by interviewing a "comparison
sample" of people from intact families who went to high school with her
subjects, but the two groups are not carefully matched.) She generalizes
too quickly: Can sixty Marin County families really stand in for all
America? Are the seventies us? Doesn't it make a difference that fathers
today are more involved with their kids both before and after divorce,
that mothers are better educated and better able to support themselves,
that divorce is no longer a badge of immorality and failure? It never
occurs to Wallerstein, either, that the very process of being
interviewed and reinterviewed about the effects of parental divorce for
a quarter-century by a warm, empathetic and kindly professional would
encourage her subjects to see their lives through that lens. "Karen" may
really believe divorce explains why she spent her early 20s living with
a layabout--blaming your parents is never a hard sell in America--but
that doesn't mean it's true.
The media tend to treat such objections rather lightly. Wallerstein's
critics "don't want to hear the bad news," wrote Walter Kirn in
Time's recent cover story. The real bad news, though, is the way
Wallerstein has come to omit from her writings crucial information she
herself presented in her first book about her research, Surviving the
Breakup, published in 1980.
How did Wallerstein find her divorcing couples, and what sort of people
were they? In her new book, she writes that they were referred by their
lawyers "on the basis of their willingness to participate." Surviving
the Breakup gives quite a different picture: "The sixty families who
participated in this study came initially for a six-week divorce
counseling service. The service was conceptualized and advertised as a
preventive program and was offered free of charge to all families in the
midst of divorce. Parents learned of the service through attorneys,
school teachers, counselors, social agencies, ministers, friends, and
newspaper articles." In other words, Wallerstein was not just offering
people a chance to advance the cause of knowledge, she was offering free
therapy--something she today vehemently denies ("Naturally I wanted to
be sure that any problem we saw did not predate the divorce. Neither
they [the kids] nor their parents were ever my patients"). Obviously,
people who sign up for therapy, not to mention volunteering their kids
for continuing contact, have problems; by choosing only therapy-seekers,
Wallerstein essentially excluded divorcing couples who were coping well.
Today, Wallerstein provides no information about the psychological
well-being of the parents before divorce, but in her 1980 book, she is
very clear about how troubled they were. Only one-third displayed
"generally adequate psychological functioning." Fifty percent of the men
and almost as many women were "moderately troubled"--"chronically
depressed, sometimes suicidal individuals...with severe neurotic
difficulties or with handicaps in relating to another person, or those
with longstanding problems in controlling their rage or sexual
impulses." Fifteen percent of the men and 20 percent of the women "had
histories of mental illness, including paranoid thinking, bizarre
behavior, manic-depressive illnesses, and generally fragile or
unsuccessful attempts to cope with the demands of life, marriage, and
family." Some underwent "hospitalization for severe mental illness,
suicide attempts, severe psychosomatic illnesses, work histories ridden
with unsatisfactory performance, or arrests for assault." It's not for
me to say whether a sample in which two-thirds of the participants range
from chronically depressed to outright insane represents the general
public--but attributing all their children's struggles to divorce is
The way Wallerstein describes her sample has changed also. In a table in
her 1980 book, she places 28 percent of the families in the two lowest
of five social-class rankings, as defined by the Hollingshead index, and
23 percent in the highest. In the new book, these figures are mentioned
in passing, but at the same time she calls all the families "middle
class"--including a famous wife-beating TV executive and his former
spouse, a wealthy travel agent who spent her life globe-trotting. All
are now "educated," as well, including the substantial percentage of
parents (24 percent of the mothers and 18 percent of the fathers at
initial contact in 1971) who hadn't been to college. Gone too are such
relevant facts from the earlier book as that one-third of the couples
had "rushed into a precipitous marriage because of an unplanned
pregnancy" and that half the wives, "because of their age and lack of
job experience, were viewed realistically as unemployable."
In short, what we have here are not generic white suburbanites who threw
away workable marriages in order to actualize their human potential in a
Marin County hot tub. We have sixty disastrous families, featuring crazy
parents, economic insecurity, trapped wives and, as Wallerstein does
discuss, lots of violence (one-quarter of the fathers beat their wives;
out of the 131 children, thirty-two had witnessed such attacks). How on
earth can she claim that divorce is what made her young people's lives
difficult? The wonder is that they are doing as well as they are.
How the New York Times convicted Wen Ho Lee.
Let's give up some applause for Dick Cheney for affirming in deed, if not words, that homosexuality is perfectly consistent with traditional family values. The decision for a Republican candidate for the vice presidency to have an avowed homosexual at his side through virtually every hour of his campaign is a bit risky. It means taking on the forces of intolerance on the right wing of his party, a wing that at one time included Cheney and, more prominently, his wife.
However, now that Cheney has granted his lesbian daughter a major role in his campaign, is it not time for the candidate to distance himself from a Republican platform that would deny equal rights protection to all homosexuals? Evidently homosexuals can be reliable workers, and it should be illegal to discriminate against folks like Mary Cheney simply because of their sexual orientation.
"I think of her as sort of my aide-de-camp," candidate Cheney said in paying tribute to his daughter Mary in an interview last week with the New York Times: "She keeps all the paper flow coming to me; everything sort of funnels through her. More than that, she knows me. She has no qualms about telling me when she thinks I'm wrong, or when I need to do something. Mary will always come in and lay it right on me. My experience over the years is that's invaluable in a campaign. Everybody wants a good relationship with the candidate--not everybody will level with you. Mary levels with you."
One would accept such excellent skills to be valuable to any employer not biased by prejudice against gays. Yet anti-discriminatory laws are needed precisely because not all employers have had the opportunity to learn from their own offspring that homosexuals are indeed normal people.
Given that Mary Cheney is proving so valuable in the campaign, would Cheney, the person who'd be next in line to become commander in chief of the armed forces if George Bush wins, still stick to his oft-expressed view that homosexuals not be allowed to serve in the military? Would his daughter be more inclined than heterosexuals in the military to undermine morale by acting in indecorous ways?
The Republican platform declares that homosexuality is "incompatible" with military service and even stands "united" with the Boy Scouts in that organization's avowed policy of excluding gays. Does Dick Cheney believe that the Girl Scouts are amiss in not following the example of the Boy Scouts, and would he be in favor of excluding his own daughter from playing a role in that organization?
These questions are not intended to be cute or to pull the candidate's chain. They go directly to the hypocrisy in which we treat homosexuals as dangerous freaks unless we happen to be friends with, or related to, one.
Ignorance is the essential ingredient in hate. Dick Cheney probably didn't know his daughter was gay when he compiled one of the most viscously anti-gay voting records in Congress. He was one of only 13 representatives in 1988 who voted against funding for AIDS testing and research at a time when that was conveniently thought to be an exclusively gay disease, and one of only 29 that same year to vote against a Hate Crimes Statistics Act.
Perhaps he would vote differently now that his daughter, whose judgment he trusts in all important matters, has determined that she is indeed a homosexual. Should a woman of such sound thought and strong moral principles not be the best judge of her essential sexual nature? Or should we continue to be guided by the bigotry of legislators and religious proselytizers? It is still against the law in Texas to perform homosexual acts; does Mary Cheney have to retreat to Colorado to legally make love?
Yes, it would be best if such decisions could be left in the private realm, as the Cheneys now ask in refusing to discuss their daughter's sexuality. But it's too late for such niceties because the hate-mongers and their respectable allies in the Republican Party have for decades exploited homosexuality as a hot political issue. It is they who have thwarted every legislative effort to grant to homosexuals the same rights afforded all other citizens.
One can understand why Mary Cheney does not now want to become a poster woman for gay rights. But she is, by her father's witness, living proof that being gay is perfectly compatible with leading a moral, public-spirited and fully enriched family values life. She is a role model that even the political right might be forced to respect.
Neoconservatives are serial grave-robbers. Back in the early eighties, Norman Podhoretz tried to claim both Ronald Reagan and George Orwell as part of his meshuggeneh mishpocheh. Now, say what you will about the dimwitted defender of right-wing terrorism and the scrupulously honest symbol of the Anglo-American democratic left, they do not belong in the same political movement. Honest admirers of both men pointed out the fallacy in this transparent tactic, but two decades later, no cure has been found. Last seen in the neocons' trunk leaving the literary graveyard were the intellectual remains of the liberals' liberal, the critic Lionel Trilling.
Trilling never uttered so much as a sympathetic syllable about the neocon/Reaganite worldview to which his would-be inheritors became so attached after his death in 1975. Yet there he was, sitting atop a pyramid of Reagan-worshipers--people whose politics he never endorsed and whose style of argument he abhorred--in a chart accompanying a Sam Tanenhaus-authored encomium to the neocons in the New York Times a few Saturdays ago. The trick with Trilling is really no different from that with the refashioned Orwell. (Ironically, as John Rodden notes in his 1989 study, The Politics of Literary Reputation, it was Trilling's introduction to a 1952 reissue of Homage to Catalonia that was almost singularly responsible for securing the writer's reputation in the United States as a kind of secular saint.) Both men wrote witheringly of those intellectuals who gave their hearts and minds over to Stalinism, prescribing tough-minded scrutiny in the face of emotional appeals. In a foreword to a 1974 edition of The Liberal Imagination, Trilling pointed out that his early essays were inspired by "a particular political-cultural situation" he identified as "the commitment that a large segment of the intelligentsia of the West gave to the degraded version of Marxism known as Stalinism." With Trilling safely unable to respond, the neocons twist these words in order to apply them to liberalism itself.
Podhoretz has long been critical of his ex-teacher for what he termed his "failure of nerve" that was part of "an epidemic of cowardice" he detected in anyone who failed to agree with him. Writing in The Atlantic Monthly, Nathan Glick notes that "besides being a disloyal deprecation of a former friend and mentor," these claims "have the scent of ideological self-serving. They come with particular ill grace from a writer who treats his own seven-year flirtation with the New Left as not only easily forgivable but also proof of his editorial flair for riding the tide of political fashion." In fact, as Glick points out, Trilling viewed liberalism as "a political position which affirmed the value of individual existence in all its variousness, complexity, and difficulty." Nothing, however, could be further from the neoconservatives' creed--one that has served, in the view of Leon Wieseltier, editor of a generous new collection of Trilling essays called The Moral Obligation to Be Intelligent, as "the anti-intellectualism of the intellectuals." By inventing a genealogy that goes back to Trilling, Wieseltier notes, "They enhance their intellectual self-esteem. They have this view that everyone to the right of the left is Neoconservative, or a Neoconservative who dares not speak its name."
In fact, the critics of the counterculture whose writings have held up best during the past thirty years are those who never gave themselves over to the neocon temptation--who never became apologists for Reagan and Bush, much less Pat Robertson and Jerry Falwell. Liberal and socialist anticommunists like Daniel Bell, Nathan Glazer, Irving Howe, Michael Harrington, Alfred Kazin and Garry Wills led a relatively lonely intellectual life in the eighties, as Podhoretz, Irving Kristol, Elliott Abrams and Jeane Kirkpatrick were all toasting themselves at the Reagan White House. But contrary to Tanenhaus's apologia, it is their works--together with Updike's Rabbit and Roth's Zuckerman extravaganzas--to which historians will one day turn to comprehend the combination of ignorant arrogance and small-minded self-delusion that captured both American extremes in the final decades of the twentieth century.
Another oddity of Tanenhaus's article was the news that the forever-ricocheting Michael Lind, who mimicked Podhoretz recently with his own McCarthyite tract on the Vietnam era, is writing a manifesto to try to revive the neoconservative creed he once savaged. His co-author is Ted Halstead, president of the New America Foundation. Here history repeats itself as farce. First-generation neocons hijacked liberal institutions like Commentary and Partisan Review (and, sadly, much of The New Republic) and gave them over to conservative purposes. Halstead's organization (with which I was briefly associated) now takes precious funds from progressive donors and redistributes them to the likes of the right-wing Lind and the conservative, isolationist, foreign-policy writer Robert Kaplan. Halstead has even boasted of trying to hire George W. Bush's chief speechwriter. "Fool me once, and shame on you," explained the sage engineer of the Star Ship Enterprise, Mr. Scott. "Fool me twice, and shame on me."
* * *
Babs in Toyland: The famously sensitive liberal icon Barbra Streisand recently played the first in a long series of "farewell performances" in New York and LA, gouging fans to the tune of $2,500 per ticket. The worthy cause? Another twenty million or so for the greater glory of Barbra Streisand Inc. Streisand herself destroyed the political economy of concert-going in the mid-nineties by charging in the hundreds for tickets. Today the Eagles and Billy Joel jack up prices to $1,000 apiece. The Stones routinely charge $350; the Who, $250. Both bands were a hell of a lot better in the pre-Streisandified seventies, when I saw them for about two-weeks' allowance. Yes, I know, markets, supply and demand, blah, blah, blah. But could we please put an end to the deification of multimillionaire rock stars who shake down their own fans? (Rock critics rarely make this point, because they get free tickets.)
Ben Katchor had been a bit of a cultural phenomenon for nearly a decade before he became a MacArthur fellow--a first for a cartoonist--this summer; is this the beginning of comic-strip artists being recognized as "real" artists?
Activists have achieved power. Now they need to figure out how to use it.
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."
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