CITYNOTES
Murphy’s Dissent

St. Patrick’s Day tends to pass unnoticed on my calendar, but this year was a little different. It fell on a Saturday, and by coincidence happened to mark the six-month anniversary of the Occupy Wall Street encampment at Zuccotti Park/Liberty Square. Crisp and sunny, the day seemed ripe for revelry. And as I made way through Brooklyn to Manhattan, I did indeed encounter plenty of green frolickers in the streets.

Jason Flores-Williams reads from “Battle of the Open Heart” (Rail, Nov. 2011) at Liberty Square on March 16, 2012. Photo by Zack Garlitos.

By the standards applied to OWS and other protesters these days, many of these folks could have been charged with the ever-so-elastic charge of “Obstructing Governmental Administration” or—if their ranks swelled in number—with “Parading without a Permit.” I heard of no such instances of reveler detentions, and I suspect that the only charges handed out to the celebrating hordes were a few Drunk and Disorderlies.

The real crackdown, of course, was at Liberty Square late that Saturday night. On dubious grounds, the N.Y.P.D. closed the plaza that is supposed to remain open 24 hours. There were 73 arrests, with some folks treated roughly. The next morning at a Left Forum panel, two students from a New England college told me how they had been detained by cops away from the plaza, and during the course of their grilling, they were asked, “Why do you want to jeopardize your education by coming down here?”

Such is the climate of intimidation towards OWS currently being created by the N.Y.P.D. Consider the threat issued to protesters by the person who is ultimately most accountable for police behavior: “You want to get arrested? We’ll accommodate you,” Mayor Bloomberg vowed, two days after the St. Patrick’s night crackdown. In the end, the mayor’s romance with the First Amendment has proved to be rather ephemeral.

As a wide range of police practices came under fire, during the previous week the mayor seemed most concerned about the folks at Goldman Sachs, whose feelings were hurt by an op-ed written by a turncoat. Meanwhile, at a City Council hearing, Ray Kelly angrily defended his department’s stop-and-frisk policy, which in 2011 saw 684,000 encounters (overwhelmingly with young black and Latino men) yield 8,000 guns, a staggering rate of inefficiency that would be accepted nowhere else in the numbers-obsessed Bloomberg administration.

In its lead editorial on Sunday, March 18, the Times called for the Department of Justice to expand its review of the N.Y.P.D., in order to focus not just on the Muslim surveillance policy but also on stop and frisk. That’s a necessary step, but in the meantime, the question remains: Where is the political opposition? Sadly, other than a few city councilmembers—Jumaane Williams, Letitia James, Melissa Mark-Viverito, and Brad Lander—nobody in higher offices wants to call out Kelly or Bloomberg.

A cynic would say that because N.Y.P.D. policies are popular, politicians are afraid to take them on. But the 58 percent support for the surveillance of all Muslims found in a recent Quinnipiac poll is not as decisive as it sounds—the numbers favoring Japanese deportation and the internment of Japanese-Americans during World War II were much higher. Besides, while New Jersey suffered plenty of losses during 9/11, its far-right governor is actually taking a progressive stand on the surveillance issue. Meanwhile, the same Quinnipiac poll found a mere 27 percent support for stop and frisk in the city’s black community (and only 43 percent in the Latino community). As these numbers suggest, it’s not just political caution that’s causing Cuomo, Schneiderman, et al., to stay on the sidelines.

All of this brings me back to St. Patrick’s Day, or to be precise, the day before at Liberty Square, when I cited the wisdom of Frank Murphy, the second Irish-American Supreme Court judge, an F.D.R. nominee. In its 1944 Korematsu decision, the court sanctioned the internment of Japanese Americans on the West Coast. Murphy, however, offered a notable dissent. In it, he wrote:

No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian, and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that, under our system of law, individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow. […]

I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution.

Murphy’s dissent surely applies to Muslims going about their everyday business and to unarmed young black or Latino males walking the streets. And I would add that even though they’re not being judged by race per se, college students from out of town are also entitled to “all the rights and freedoms guaranteed by the Constitution,” too.

Contributor

Theodore Hamm

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