Norms could be more important than laws

Dear Readers, We cannot always depend on laws to hold us together.  America is the land of equal opportunity.  Thriftiness, hard work, and persistence are rewarded with riches and success.  The enduring image of “America” is the iconic Grant Wood family spreading our influence from coast to coast.  Only the lazy and shiftless fail – government assistance is a hand-down, not a hand-up.

This is a lie, and it always has been.  Success is as much about luck and ruthlessness as personal triumph.  Ideas, land, and businesses are swiped from the less fortunate; we “stole” this country from Native Americans with the introduction of non-native diseases and hollow treaties made at the barrel of a rifle.

Every Western Empire, starting with Alexander the Great in 336 B.C., has struggled with incorporating “new” cultural influences into society.  Rome was so successful for so long because while it created castes and accepted barbarians into its midst, it tolerated differences.  The Ottoman Empire, perhaps, was the last example of how a ruling authority quelled discontent by permitting “each their own.”

Our “empire” is of far briefer duration.  The open arms emblematic of the Statue of Liberty, though, show the wisdom of renewal energy derived from a “melting pot” of different cultures.  Go to any major city, especially in the north and on either coast, and you find cities knit together by cosmopolitan distinct neighborhoods, with their own language and culture.  The success of America is not in our uniformness, it is in the celebration of our differences.  We are blind to this truism.

Travel outside urban areas and you see a different America.  Diversity is drained and uniformity rules, more like what we find in Scandinavian countries.  In this sense, there are “two Americas,” only united by our laws and respect for them.

From its inception, we were a country embedded with the disease of white privilege.  The 3/5ths compromise made racism a part of our Constitution.  Waves of immigration from non-English lands, from Ireland to China, created a “pecking order” of ethnic bullying spanning generations.  Even now, Spanish-speaking enclaves are viewed with suspicion of “otherness.”

The question is how to keep the two Americas paddling toward the same goal of equality of opportunity.  Diverse America sees the lingering whiff of racism and privilege; Uniform America takes umbrage with complaints of the imperfect past.

Let me explain.  Higher education extends “legacy” offers to matriculate.  This directly perpetuates inequality, as only privileged (and white) families historically have had college access.  Moreover, school systems in privileged neighborhoods have sufficient resources dedicated to educating students, as compared with the underprivileged.  This is a product, in part, of our history of segregation.  This creates unfair societal and economic advantages on the competition ladder towards the brass ring of college.

Uniform America shakes its head and wonders why race or background matters in the selection process.  It is not exposed to inequality and does not like being told it is racist.  Hence, when it seizes power, “Diversity, Equality, and Inclusion” is perceived as evil and a vicious attack on America.

In the aftermath of Jim Crow, when we passed the Voting Rights Act, we explicitly mandated that voting districts maximize the political power of minorities.  This was to rectify the historical suppression of minority rights.  Uniform America sees this as perpetuating racism; Diverse America sees this as righting a wrong.

In a race of Red and Blue legislators trying to pick their electorate, Uniform America applauds Texas trying to politically gerrymander its congressional delegation to maximize Republican representation in Congress.  Diverse America, in states like California, is threatening to do the same thing for Democrats.  This is a mad game of musical chairs, sorting ourselves further into Uniform and Diverse America – two nations instead of one.

The United States Supreme Court, in theory, could try to make sense of this madness.  We all agree that race should not be determinative of representation, but also that it should not be impossible to have representation reflecting voters’ backgrounds and experiences in districts.  We (probably) all agree that brute political force has no place in arranging voting districts; otherwise, we end up with two Americas and no cross-over representation.

Legally, though, how can the Supreme Court come up with a standard to prevent either?  Even the idea of ensuring people of color have the numbers to “choose” their representative raises questions about how this could be achieved.  The law is powerless to save us from our divisiveness.  Norms can be just as important as statutes. 

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.