The pain will pass. When running against the wind, be sure to keep calm. Don’t touch your face. Do not rinse with water. Use Coca-Cola or milk instead to end the burning. If you are close enough to the police, they cannot use the tear gas on you. And in the event that you are without a gas mask, you can wrap a t-shirt around your nose and mouth and protect your eyes with goggles or something similar. The oblong teargas canisters are small enough that they can be hurled back at the shooter before too much gas is expelled. To properly douse them, be sure to arm yourself with a Poland Springs jug half-filled with water, and the canister that lands beside you, toss it inside, stand on the opening and wave away the remaining fumes as the device is extinguished. If there is fire nearby, toss the canister in the fire, and that too will neutralize it.
This was the advice given to protestors in Ferguson, Missouri in the conflagration that followed the August 2014 murder of 18-year-old Michael Brown by Officer Darren Wilson.
It was given to them over Twitter. By Palestinians.
The night of November 24, 2014, I was 3,000 miles away from home.
I’d had the Guardian Liveblog of the Ferguson Grand Jury proceedings up, and I contemplated powering through the night, despite my 8 am class the next morning. But I fell asleep.
Even knowing how the movie would end, I woke up the morning of November 25 hurting. All day, on the metro on my way to class, then back home upon discovering that class had been cancelled, I fought tears. If I wept on the 4 line to Saint-Germain-des-Prés, who would know why? Who would bother to ask?
You tell yourself that this has happened often enough that cynicism should have set in by now. Laughter with traces of madness, that should be my response. It shouldn’t still hurt this bad.
But, confirmed on Facebook, flowing through and around the massive islands of solidarity were rivers of racism, water turned to blood. It wasn’t the callousness or the severe lack of empathy that mule-kicked me in the chest, it was the people it came from. In this day and age, as interconnected as the country is, chances are you are or will be close to someone who will see you crying on a day like November 25, 2014, and will refuse to understand why.
Exhortations for calm come from all of the usual suspects. Admonitions to comb through Officer Darren Wilson’s grand jury testimony before leaping to rash judgment, entreaties not to trash the businesses of the community. All of it ran right on time. Like clockwork, assuming that with such debilitating rage, one would still want to calculate the efficient expenditure of one’s wrath.
All day long, the list of names circulated, grew longer. Victims of police shootings. Unarmed victims of police shootings. Black unarmed victims of police shootings. Another list that circulated was one containing last words. Amadou Diallo: “Mom, I’m going to college.” Trayvon Martin: “What are you following me for?” Oscar Grant: “You shot me. You shot me!” Sean Bell: “I love you too.” Michael Brown: “I don’t have a gun, stop shooting.” Kimani Gray: “Please, don’t let me die.”
A black American child today will grow up in a country where someone who looks like him or her is murdered every 28 hours by a police officer, neighborhood watchman, or vigilante.
On July 8, 2014, nine days before Eric Garner would be put in a chokehold and killed, Israel launched Operation Protective Edge.
For children in Gaza who, at that point, had made it to the age of seven, it would mark the third major bombing operation in their lifetime.
In the aftermath of the September 11 terrorist attack on the Twin Towers, one of the jokes I heard, like a repeated refrain, was “now they’ll know what it’s like to be black.” A variation: “Well, for now, at least we ain’t on the bottom no more.”
The photograph that Associated Press photographer Richard Drew took at 9:41 am that morning, of a man falling from the North Tower of the World Trade Center, became the day’s emblem. Then the decade’s. The man, the New America’s Unknown Soldier, was among somewhere between 50 and 200 other “jumpers.” Estimates differ. Medical examiners in New York City did not mark them as suicides. Except for the hijackers, every death was marked a homicide due to blunt force trauma. In the years that followed, the Falling Man came to represent everything from unmitigated despair to stoic resignation to a nihilistic sort of courage.
The 10-year revenge epic that followed, that began with the toppling of an uninvolved country’s government and ended with a black President ordering the killshot, would unite Americans of color with white Americans. Indiscriminate enlisting. The only qualification for participation in this patriotic vendetta was American citizenship and a healthy capacity to dehumanize the towelhead, the sand nigger.
The War on Terror would ferment the camaraderie borne of military fraternity.
But the existential thread was more textured. Beneath the bloodthirst, one imagines relief on the part of the black American: finally a group of people this country hates more than us.
In the black American narrative, Islam is the interloper.
As the Christian God was the slavemaster’s deity, Allah offered true liberation. The religion, divorced of the Arab, replaced by the African, and transmogrified by Black Nationalism, came to save us from our being co-opted by white tradition and admonished us to abstain from smoking, drinking, gambling, to engage in inner jihad. One hears whispery echoes of Maria Stewart in the sound the red bowtie makes when it is fitted beneath one’s shirt collar. Malcolm X claimed in a 1963 Playboy interview with Alex Haley: “A Muslim to us is somebody who is for the black man; I don’t care if he goes to the Baptist Church seven days a week. The Honorable Elijah Muhammad says that a black man is born a Muslim by nature. There are millions of Muslims not aware of it now. All of them will be Muslims when they wake up; that’s what’s meant by the Resurrection.” This was of course Elijah Muhammad’s Islam. The Apocalypse waiting for white Americans was Christian in its intensity and indiscriminateness. And it was not unreasonable to see Hitler’s Aryan racial philosophy in the genre of black supremacy espoused here.
But it had turned a Georgian ex-factory worker into a Messenger of Allah who commanded an army of thousands. And it had turned a one-time dining-hall steward and pimp and drug dealer into Malcolm X.
It had turned out black-owned stores, black-owned newspapers, black-run schools, black-owned restaurants, its own police force called the Fruit of Islam, and it purchased airtime on scores of radio stations across the country.
The problem with the Nation of Islam was that it ran perpendicular to the alliance between black Americans and American Jews during the Civil Rights Struggle. While white flight in Northern urban metropolises left behind American Jews who maintained frayed ties with the local community and who were often viewed with suspicion by those lower on the socio-economic ladder, American Jews, statistically, were one of the most actively involved non-black groups in the fight for racial equality. Of the white Northern volunteers in the Mississippi Freedom Summer project, half were Jewish. Rabbi Abraham Joshua Heschel marched arm-in-arm with Dr. Martin Luther King, Jr. in the 1965 march to Selma. On Sunday, June 21, 1964, three civil rights workers engaged in a massive voter registration drive drove forty miles from Meridian, Mississippi when they heard a black church that had been used as a training ground for Mississippi volunteers had been burnt to the ground. Their names were Michael Schwerner, Andrew Goodman, and James Chaney.
En route, the three of them, driving a blue Ford station wagon, were stopped on the road by a local deputy, arrested and booked in Neshoba County Jail, then subsequently delivered to local Klansmen who executed them.
Chaney was black. Schwerner and Goodman were Jewish.
The Israelites had come to our aid, and they brought with them the understanding that not a single stone is thrown absent of thought of the things that came before. And, in the labor, they were dying beside us.
Perhaps the biggest impediment to solidarity between the black American and the Palestinian Arab has, ironically, been the promise of participation.
Methods for interpreting the American Constitution, its intentions, its purpose and its audience are proliferative. As far as framing the issue of constitutional interpretation in the terms of constitutional construction and the role of the people in that process, the theories of minimalism, popular constitutionalism and the ethical modality are most perspicuous in affording a space for “the people” in that equation. On their face, minimalism, popular constitutionalism, and the ethical modality espoused by law professor Philip Bobbitt deal most explicitly with popular sovereignty, though they differ greatly as to where the “people” stand in relation to the federal judiciary. There exists a spectrum that sees Supreme Court Justices as actively involved in constitutional jurisprudence and the normative movements of the nation on one end and, on the other, an allowance to “the people” to exercise tradition as they see fit with the Justices either looking on in silence or giving those flashes of popular sovereign movement their stamp of approval. But in each of these, tradition is invoked and, by extension, “the people.” In each context, however, “the people” seems to mean something different, and the space provided for the “people,” thus, differs with each theory.
Lurking beneath the amorphousness of the definition of “the people” is the problem of constitutional evil, most specifically the fact that the document intended to ensure the freedom and political participation of Americans was drafted and ratified with a particular audience in mind, an original tribe. The halting expansion of political participation and of the freedoms afforded Americans has raised the issue of whether or not the Founding Document was and is a moral document. For whom are the Constitution and the freedoms embodied therein meant?
Some of the scholarly discourse centered on this very question has given rise to a “constitutional skepticism,” calling into question the document’s integrity and forcing an interrogation of its ugly parts, its evils, and the fact that it is a document that was formed during the commission of America’s Original Sin.
It is not my intention to equate the divine inspiration that powered the Bible’s construction with the intellectual and ethical acrobatics that attended the Constitution’s creation, but the problem of cognitive dissonance exists in the Christian struggling to maintain fidelity to a Bible that has been invoked to perpetrate horrors as it exists in the legislator, Supreme Court Justice, American struggling to maintain fidelity to a document whose freedoms were not initially meant for the people the document was meant to govern. Adherence to the New Testament does not necessitate breaking from the Old.
One theological understanding of the Bible is that the New Testament is a lens meant to color the Old Testament that preceded it. The analogue would be, then, that the rights-affirming amendments to the Constitution should be read the same way, as lenses that should color our view and interpretation of the Constitution that precedes them.
America’s Original Sin provides precisely an instance of the Constitution turning against the way it spins. The Fugitive Slave Act and other legislative edicts propping up the peculiar institution made rescuing fugitive slaves and aiding and abetting their rescuers not only a concrete set of prohibitions against practical action but symbolic declarations as well. Within the Constitution and within the context of its invocation, Authority was pitted against meaning. In this Binding of Isaac, Abraham has no qualms sacrificing his son, holding his son on the same plain as the ram eventually provided for sacrifice. Meanwhile, those living in a different normative universe, one where they were the ones wearing chains and bearing on their backs the expressed malice of their owners or where they were the ones watching their brethren subjugated and advocating for the institution’s abolition, found themselves in a different posture in the narrative of Abraham sacrificing Isaac. From their position, standing in the gutter with their eyes trained on the stars, slave and abolitionist alike, from the Garrisonians to the John Browns to Frederick Douglass, asked of the sky what God would dare demand such a sacrifice. What document promising a “more perfect union” would dare license chattel slavery?
Where constitutional fidelity may have been a sensible given for the majority of Americans before and after the Civil War, the devotion of minorities, particularly oppressed minorities the mechanism for whose oppression was written into the very text of the nation’s laws, to the Founding Document raises fundamental questions not only as to the moral certitude of the Document but as to the aforementioned methods of interpreting it as well. Who are “the people?” The “people” are a multitude. Science-fiction author William Gibson is alleged to have said “[t]he future is already here–it’s just not evenly distributed.” Well, the protections of the Constitution have been here; they just have not been evenly distributed.
Slavery and its attendant legal/moral conundrums have necessitated moral, ethical and spiritual gymnastics on all Americans who have sought to deal with the issue that made the Constitution turn against the way it spun. Justice Story, writing the opinion in Prigg v. Pennsylvania, reversed Edward Prigg’s conviction and held the 1788 amendment to Pennsylvania’s “An Act for the Gradual Abolition of Slavery” unconstitutional, at the same time allowing state legislatures to nonetheless pass laws that prohibited state officials from aiding, in any way, a slavecatcher in the course of his duty. The idea, by apologists of the ruling, is that Story reasoned that slavecatching, a difficult enough enterprise in some cases, was only made more difficult by the non-assistance of local authorities. A perhaps more obvious benefit, highlighted by Story apologists, is that this ruling helped preserve the Union at the time.
These spiritual and intellectual contortions did not end with the striking of the Fugitive Slave Act. Professor Derrick Bell presents post-Reconstruction as a “nadir” for black Americans which has persisted in testing the notion of constitutional fidelity to the present day. Bell writes of post-Reconstruction courts: “Judges were content to take sides by doing nothing. They exerted only that energy required to so narrowly construe seemingly applicable constitutional provisions and civil rights statutes, that one ponders why the Congress had labored at such length to produce laws that impressed the judiciary so little.”
Post-Reconstruction in this light, and the era that saw the fruits of the labor undertaken by Civil Rights Strugglers, when the rose-tint of popular constitutionalism’s theorizing is pushed to the side, reveal an America where the victories of social movements are hollowed things, such that when you knock on them to test their strength, you hear only the emptiness ringing inside them. Voter suppression laws, produced in the laboratories of state legislatures, further evince the insubstantiality of the promise of inclusiveness held in readings of popular constitutionalism and minimalism.
Professor Dorothy Roberts states that the fidelity of America’s black population to the Constitution is borne of a desire for equal citizenship, for a shot at participation in the American political experiment. This dovetails with the late John Hart Ely’s emphasis on participational rights as a way to ensure the participation of “discrete and insular” minorities in the political process. Ely, a widely cited legal scholar and former dean of Stanford Law School, had as his signal hypothesis that constitutional provisions should be read, not as efforts to establish substantive rights, but as safeguards against the infringement of procedural rights, infringements upon the right to participate in popular self-government. The representative ingredient in our democratic soup is the most important, not just a spice added on for flavor but the principal out of which the whole project is made.
But what Ely posits shatters against the same thing that reduces minimalism, popular constitutionalism, and the ethical modality to dust when they attempt to assert their populist impulses. The Old Testament was not written for the Gentiles.
Minimalism, popular constitutionalism, and the ethical modality avoid elaborating their concept of the people or the popular consciousness. One might posit that those theories operate out of a bloodless theoretical naïveté, or if one wishes to be particularly caustic, one might accuse the three methodologies of constitutional interpretation of cowardice. So far, they have ducked the issue, skirted around the whip-scarred elephant in the room. Theorists walk around that tainted space, perhaps in the belief that if it is ignored, it can be treated as anomaly, slavery a singular happenstance rather than the pervasive boil on America’s flesh. If the racial imperative that powered it is a more pervasive thing than that, if it is indeed more widespread than a specifically historical orbit of hurt, then it is perhaps unavoidable.
With the Reconstruction Amendments, we have a cure for the evils built into the Constitution of 1787.
The Fourteenth Amendment invalidated Article 1 §2’s three-fifths clause. The Thirteenth Amendment invalidated Article 4 §2’s Fugitive Slave clause. Those are the evident changes. Less evident but perhaps just as powerful is the fact that those Amendments are now inseparable from the rest of the Constitution. Not only are they part and parcel of the Constitution’s fabric, they address its deficiencies. They attempt to cure its infirmities with an element of permanence. The discretion of judges and legislators and members of the executive branch is not enough to more distinctly outline the contours of the rights that may or may not be embodied in the structure of the Constitution, as Bobbitt posits. If it is in the Constitution, it cannot be ignored. And if one is wedded to efforts at determining the intent of base-text clauses, then one must be even more invested in gauging the intent and meaning of the Reconstruction Amendments. In this brand of intratextualism, the intention behind the Thirteenth, Fourteenth, and Fifteenth Amendments is the more important element. If the historical-linguistic context of a rights-based base-text clause raises questions, the historical-linguistic context of rights-based amendments can provide answers.
Frederick Douglass, in a brobdingnagian struggle to see morality in a document that had legitimized his captivity and would not prevent any subsequent return to bondage, sought a revised interpretation that rendered the Constitution incompatible with slavery, writing: “[I]f the declared purposes of an instrument are to govern the meaning of all of its parts and details, as they clearly should, the Constitution of our country is our warrant for the abolition of slavery in every State of the Union.” Douglass interpreted the document’s pieces in light of its whole.
Due process is accorded new meaning in light of the Amendments. The Eighth Amendment must be read in light of the peculiar institution that necessitated the creation of the Reconstruction Amendments. The Bill of Rights in its entirety is now made accessible to that part of the population formerly perceived as property.
But, Medgar Evers. But, redlining. But, Michael Brown.
But, Jim Crow.
But, Addie Mae Collins, and Cynthia Wesley, and Carole Robertson and Denise McNair.
On Sunday November 23, 2014, Prime Minister Netanyahu’s cabinet approved a bill that defined Israel as the nation-state of the Jewish people. The bill, intended to be part of Israel’s basic laws, would institutionalize Jewish law as a launching point for future legislation and would delist Arabic as a second official language. Prime Minister Benjamin Netanyahu argued for the bill as an attempt to battle those who would challenge Israel’s character as a homeland for the Jewish people. “There are those, including those who deny our national rights, who would like to establish autonomy in the Galilee and the Negev,” Netanyahu contended. “Neither do I understand those who are calling for two states for two peoples but who also oppose anchoring this in law. They are pleased to recognise a Palestinian national state but strongly oppose a Jewish national state.” Despite rancorous debate and opponents arguing that the new legislation would enshrine national rights for Jewish people and exclude all other minorities in an egregious display of racism, the cabinet passed the bill with a vote of 14-7.
The cabinet had held this meeting just as it was reported by the Palestinian health ministry that Israeli forces had shot dead a Palestinian in Gaza. Five days earlier, two armed Palestinians armed with guns and axes stormed a synagogue in West Jerusalem, killing five Israelis and injuring eight others before being shot dead by Israeli police. The two men, cousins from East Jerusalem, belonged to the Popular Front for the Liberation of Palestine.
Israeli President Reuven Rivlin condemned the new bill and added his voice to the chorus that claimed that the bill would undermine Israel’s stature as a democratic state and would, in fact, undermine its very declaration of independence.
America has been forced to accept the existence of the Negro, even as its institutions continue to be geared towards the twin aims of subjugation and extinction. Israel yet refuses to accept the existence of the Palestinian Arab. Independence is a national endeavor for the Palestinian Arab. It is a personal quest for the Negro. Freedom from fear. The tribe is an Old Testament metaphor, the Negro still holding out for the promise of deliverance. And maybe the vengeful character of our God has been tempered with time. Maybe it hasn’t. But the Negro has never identified with Ishmael. Nor has the Negro ever wondered what the Philistines were up to before David decapitated Goliath. The Negro is perhaps a New Testament entity. Neither Jew, neither Arab. Neither fully assimilated nor fully rejected.
But symbols trump reality.
Though the Falling Man, that totem of tragedy, that man turned metaphor as he was falling from the North Tower of the World Trade Center on 9/11, may not have been black or brown, though he may have been white, he was American. And the allegory of the Negro as America’s Israelite will always trump the reality of the Palestinian Arab’s similarity to the Negro.
In June of 2013, I visited Hebron, a city in the West Bank.
Barricades and checkpoints. A small Arab huckster, charming our group of human rights workers in French. A mosque whose pillars still bore the bullet holes of a terrorist attack. A lower-level market with a metal grating overhead, heavy with metal bars and bricks and bottles, socks filled with feces and urine and occasional residue from acid thrown earlier, detritus that the Jewish settlers had aimed at the Palestinian market below.
At one point, we passed through a guarded trailer on Shuhada Street and on the other side of the checkpoint was a patch of ghost town. Occasional police vehicles with Hebrew on their fronts and their flanks lounged on street corners. When the muezzin chanted over the empty street, one felt haunted.
Walking down that empty street, I tried to hear the music and when I closed my eyes, I could see 1963 Birmingham as it existed in photos. The black-and-white had turned to color.
I try to listen for it now, to time-travel the way I did when I was Doaker and a piano in my house had the faces of slaves carved into it. I try to listen for the song that’s meant to carry me through the labor. I try to listen for it now a day after Darren Wilson’s exoneration. But the song has turned to static. I hear words instead.
When running against the wind, be sure to keep calm. Do not rinse with water. This pain will pass.
 Robin L. West, Constitutional Scepticism, 72 B.U. L. Rev. 765 (1992).
 41 U.S. 539 (1842).
 See generally R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (University of North Carolina Press, 1986).
 J.M. Balkin, Agreements with Hell and Other Objects of Our Faith, 65 Fordham L. Rev. 1708 (1996-1997).
 Derrick A. Bell, Jr., The Racial Imperative in American Law, in The Age of Segregation: Race Relations in the South, 1890-1945 (University Press of Mississippi), 3-28.
 Id. at 4.
 Dorothy E. Roberts, The Meaning of Blacks’ Fidelity to the Constitution, 65 Fordham L. Rev. 1761 (1996-1997).
 John Hart Ely, Democracy and Distrust (Harvard University Press, 1980).
 Frederick Douglass, The Life and Times of Frederick Douglass, 261-262 (MacMillan Co. 1962) (1892).