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| Calmore: The civil rights rulings
of the court have not been sustainable. They were too formal to stand
up to the racism that is embedded in society and institutions.” |
Posted February 18, 2004
Calmore Laments Death of Legal Liberalism
The progress on racial and social justice issues that the Warren Court
began is now stalled, according to University of North Carolina law professor
John Calmore, who spoke on “The Cultural Legacy of the Warren Court” Feb.
16 at the invitation of the American
Constitution Society. Law professors Earl
Dudley (a law clerk of Chief Justice Earl Warren) and Lillian
BeVier also offered some comments on the Warren Court and Calmore's
talk.
“The legal liberalism represented by the Warren Court is dead and won't
come back again,” said Calmore, who teaches critical race theory. “In
every class I teach, the word ‘oppression' comes up. The oppressed live
in a condition that leaves them static, limited and expendable. That's
not something you law students experience. The Warren Court intervened
in that oppression,” most importantly in its Board v. Board of Education ruling
that outlawed racial segregation in public schools.
Calmore said he did not mean to imply that he personally, a successful
black law professor, was among the oppressed. “I stand before you personifying
the positive legacy of the Warren Court.”
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| Dudley clerked for Chief
Justice Earl Warren. |
But most African-Americans feel ambivalent about the Warren Court, he
said. “It's what [comedian] Chris Rock said: When you're an African-American
you see the United States as the uncle who paid your way through college,
but who molested you when you were young.”
Calmore characterized the Warren Court's social advances as taking three
forms. The Court succeeded in rule-shifting (finding new rights and remedies
for racial injustice), in altering the conduct of the government and
private institutions, and in shifting cultural attitudes towards new
moral standards. The attitude changes "have been more sustainable
than the court's jurisprudence,” he said. “The civil rights rulings of
the court have not been sustainable. They were too formal to stand up
to the racism that is embedded in society and institutions.”
“The genius of today is to claim that racism only exists in individuals,” said
Calmore. He did acknowledge that “easy-to-spot racism is somewhat a thing
of the past,” but went on to assert that the legacy of the Court has
been thwarted by “right-wing” resistance. “Social injustices are now
seen as natural misfortunes,” he said.
Racism has merely camouflaged itself along “a continuum of substitutes
for discrimination,” he contended. “Status relationships have not been
dismantled. Hierarchies are preserved.” As social injustices are challenged,
he said, groups break away from institutions and abandon the rhetoric
of the old point of view, but the point of view is otherwise retained. “Like
a virus, it mutates to a new form.”
Calmore urged students to take up “third-dimension lawyering,” a tactical
style he called “an advocacy response.” First-dimension lawyering is
rights-based advocacy in which cases are brought for their test values
and to produce reforms, he explained. “A reform goal is not a transformative
goal. In these cases people perceive their injuries as ones that can
be remedied in court. It's deeply faithful to legal liberalism and has
had its best days.” Second-dimension lawyering is “public action with
political ramifications. Advocacy seeks to impact the public consciousness.” It
is less a matter of whether the case is won than if it “widens public
imagination,” he said.
In third-dimension lawyering the aim is to raise the consciousness of
the client group. “Acts of resistance translate into opportunities. This
is the kind of lawyering that needs to be done now to advance social
justice.”
He told students to “resist any signs of subordination according to
gender, race, class or sexual orientation” and to insist that the student
body include a “critical mass of people of color,” especially black men.
He advised black students “not to give up on white students. Most whites
are not really racists, they are just confused.” He said white students,
besides resisting stereotypes, “must come to terms with white privilege
and what it means.”
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| BeVier: “New legal rules are not
cure-alls.” |
In concluding comments, professors Dudley and BeVier agreed with Calmore
that the courts alone cannot fix the problems in society. Issues of injustice
must also be addressed politically and individually. Dudley credited
Brown with giving a “jump start” to the civil rights movement, but noted
that it wasn't until Congress passed civil rights legislation in 1964
and 1965 that tied to noncompliance to federal funding losses that the
southern states began to act seriously against segregation. “New legal
rules are not cure-alls,” said BeVier, who noted recent news stories
about individual acts of compassion and trust that led to triumphs over
instances of suffering and injustice.
• Reported by M. Marshall
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