1/ I sometimes ask students what their position on slavery would have been had they been white and living in the South before abolition. Guess what? They all would have been abolitionists! They all would have bravely spoken out against slavery, and worked tirelessly against it.
2/ Of course, this is nonsense. Only the tiniest fraction of them, or of any of us, would have spoken up against slavery or lifted a finger to free the slaves. Most of them—and us—would have gone along. Many would have supported the slave system and happily benefited from it.
3/ So I respond by saying that I will credit their claims if they can show evidence of the following: that in leading their lives today they have stood up for the rights of unpopular victims of injustice whose very humanity is denied, and where they have done so knowing:
4/ (1) that it would make them unpopular with their peers, (2) that they would be loathed and ridiculed by powerful, influential individuals and institutions in our society; (3) that they would be abandoned by many of their friends, (4) that they would be called nasty names, and
5/ (5) that they would risk being denied valuable professional opportunities as a result of their moral witness. In short, my challenge is to show where they have at risk to themselves and their futures stood up for a cause that is unpopular in elite sectors of our culture today.
For all the passion on display these days, it enjoys two very obvious things: there’s no risk to students and young people of denigration by their peers, most of whom buy their Che shirts from the same artisanal t-shirt store, and there are few, if any, occupational hazards to suffer for marching in lockstep with their buds.
But what if the overwhelming social norm was very different? As George says, it’s nonsense to claim they would all be true to their deeply impassioned belief in equality, because today, under the current social regime that overwhelmingly supports that belief, they are right in the middle of the crowd. But his challenge to the certitude of righteousness is only theoretical.
What college student would walk about campus with a t-shirt proclaiming “Abortion in Murder,” or even “Cops are people too”? They would never consider such a thing, as it’s clearly wrong in their belief system and they would be branded pariahs right before they were expelled for hate speech. It’s not that they wouldn’t buck the majority, in their brave minds, but that there is nothing they don’t support right now that isn’t the right belief. Of course, they completely miss the point, but that’s the irony of youth, absolutely certain in their being on the right side until the winds shift.
Of course, there is a group who can present evidence to prove their claim. Older criminal defense lawyers, the people who were fighting over the past 30 years for the despised defendants during the crack epidemic, the Satanic Panic, the various wars on crime that enjoyed overwhelming public support. We were pariahs. We didn’t care. And no, it’s not the same today, when we’re now on the side of marginalized and oppressed, except when we’re defending a guy accused of a sex crime, the panic of the moment.
Does that mean CDLs would have been abolitionists at the founding, before the Civil War? Nope. Even as we stood up for the unpopular, that doesn’t prove we were always on the side of “justice,” whatever that means. Rather, it means we had the fortitude, at least to the extent of what we did, to do our jobs despite having no adoring fans to tell us how cool and edgy we were.
But does our long history of fighting for the unpopular despite our being social pariahs give us any cred to question the favored ideology of the moment?
The reason I, personally, feel ok critiquing Robin DiAngelo in a way that I don’t feel comfortable critiquing Kendi or other “anti-racists” (even though I disagree with much of the ideology itself) is uhhh cowardice.
Katie Herzog is no coward. Not even a little bit, and she’s hated for it. But her point is valuable, that even a criminal defense lawyer of a certain age, say a straight white male with over 30 years of criminal defense practice under his belt, ponders whether it’s wise to challenge the views of Ibram Kendi? Beating up on Robin DiAngelo’s racial cash machine is one thing, as long as you don’t go anywhere near her gender (she’s a nutjob, but a man can’t call a woman crazy no matter how crazy she is, because that’s what oppressors do), because she’s white and gets no race points. But Kendi’s thrust is that race dictates everything and it’s not enough to not be racist, but to be affirmatively anti-racist by dedicating your life to his cause.
Can a criminal defense lawyer, having passed Prof. George’s test, express a critical opinion about Kendi, even if Herzog doesn’t feel comfortable doing so and none of George’s students would entertain such a horrifying and exhausting notion?
The Gods of Social Justice say “no.” Never having experienced the life of oppression, basking as we do in privilege, we are entitled to sit silently and listen, but never to question or challenge. Then again, the same force that drove us to be pariahs back then, back when society hated our clients and didn’t like us very much for defending them, remains intact, buried deep within our dark, dark heart.
And so I have my say, even if all the righteous folks demand I shut up or be canceled. And that, too, is evidence that I, that we criminal defense lawyers, would not have been part of the in-crowd back when slavery was the way things were.