January 2016 Bar Bulletin
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The Promise of Our Constitution


On January 15, KCBA will honor the life and vision of the Rev. Martin Luther King, Jr. with keynote speaker C.T. Vivian. Dr. Vivian served as one of Dr. King’s lieutenants during the Civil Rights Movement. In November 2013, Dr. Vivian was awarded this nation’s highest civilian honor — the Presidential Medal of Freedom.

As we recognize the work of Dr. King and Dr. Vivian, I am reminded and inspired by the words and actions of others who have called out hypocrisy, who have invoked the full promise of the founding fathers, and who teach us that litigation losses can be just as important as wins. These voices remind us to learn from history so that society advances and meets its moral obligations. When I read about these moments in history, I think about the lawyers who served these individuals, stood behind courageous clients or stood for those clients in court.

Some messages are direct and biting. During an event on July 5, 1852, to commemorate the Fourth of July, Frederick Douglass noted the hypocrisy of celebrating the Fourth of July in the age of slavery:

What, to the American slave, is your 4th of July? I answer; a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciation of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade and solemnity, are, to Him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices more shocking and bloody than are the people of the United States, at this very hour.1

More than 10 years and a bloody Civil War would pass before the 13th Amendment was passed in 1865, abolishing slavery. To some — despite constitutional amendments, laws against discrimination and other acts to promote equality — the Fourth of July remains a hypocrisy.

Many women who supported suffrage had worked to support passage of the 13th Amendment and felt betrayed when the political will did not immediately lead to suffrage for women in the form of a constitutional amendment. In 1872, Susan B. Anthony, along with 14 other women, cast a vote in the presidential election. At the conclusion of Anthony’s jury trial, the judge, and not the jury, imposed a $100 fine because he disagreed with her argument that the Fourteenth Amendment protected a woman’s right to vote.

At this time, the women’s suffrage movement had encountered a split: Some campaigned for a constitutional amendment while others believed women could win the right to vote on a state-by-state basis. Throughout the early part of 1873, while waiting for her case to go to trial, Anthony traveled the state giving speeches about her arrest to promote women’s suffrage. She harkened back to the promise of the preamble of the U.S. Constitution:

It was we, the people; not we, the white male citizens; nor yet we, the male citizens; but we, the whole people, who formed the Union. And we formed it, not to give the blessings of liberty, but to secure them; not to the half of ourselves and the half of our posterity, but to the whole people — women as well as men.2

Notably, Douglass also supported women’s suffrage and, in fact, was the only male to attend the first Women’s Rights Convention in Seneca Falls. He and Anthony would remain close friends (with some disagreements over universal suffrage). Anthony also championed women’s rights at the International Council of Women at the Chicago World’s Fair in 1893.

Swami Vivekananda also attended the Chicago World’s Fair in 1893. Vivekananda is noted for promoting interfaith tolerance and introducing Hinduism to the western world. He addressed the World’s Parliament of Religions in Chicago. His words are as timely today as they were in 1893:

Sectarianism, bigotry, and its horrible descendant, fanaticism, have long possessed this beautiful earth. They have filled the earth with violence, drenched it often and often with human blood, destroyed civilizations and sent whole nations to despair. Had it not been for these horrible demons, human society would be far more advanced than it is now. But their time is come; and I fervently hope that the bell that tolled this morning in honor of this convention may be the death-knell of all fanaticism, of all persecutions with the sword or with the pen, and of all uncharitable feelings between persons wending their way to the same goal.3

Despite Vivekananda’s hope that 1893 would signify world tolerance, two world wars were around the corner. During World War II, the United States issued curfew orders and designated restricted zones that prohibited individuals of “Japanese Ancestry” from certain areas on the West Coast. Mary Asaba Ventura, a Seattle resident and natural-born citizen of Japanese descent, challenged the curfew order.4 Ventura argued that the curfew unreasonably infringed on her rights as a loyal U.S. citizen. A federal judge rejected Ventura’s application, noting that she had not been arrested for a curfew violation. The court did, however, in analyzing the curfew orders, acknowledge a risk of “blood loyalty” of Japanese to Japan.

While Ventura did not “win” in court, her willingness to file a writ of habeas corpus signified a stand against inequality. Her case was a predecessor to cases subsequently filed by Fred Korematsu and Gordon Hirabayashi, who challenged the constitutionality of Japanese internment during World War II and a curfew conviction. While Koremastu’s case was never overturned, the Department of Justice, 44 years after the decision, issued a statement acknowledging that the decision was made in error. The Ninth Circuit Court of Appeals overturned Hirabayashi’s curfew conviction in 1987.

Supreme Court Justice Anthony Kennedy has observed (in the marriage equality case), “the nature of injustice is that we may not always see it in our own times.”5 In the decision issued on June 26, 2015, Justice Kennedy wrote powerfully and lovingly about marriage equality and clarified that equality is about dignity:

It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.6

But it was something that Edith Windsor said that resonated with me. Her comment captures the hope of the justice system. Windsor was the named plaintiff in the Supreme Court decision striking down the Defense of Marriage Act and a predecessor to Obergefell. “I trust the Constitution. Sometimes there’s a mistake, but mostly we move forward. I think we’re going to win just because I think justice will prevail. Is that crazy?”

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