The majority opinion was little more than military mumbo-jumbo. After so much jibber-jabber, the majority opinion managed to protect the sacred cow, the white female. Only in America, with its slave history and its slave culture can the best legal minds we have been able to assemble, so far, come to such a warped decision.
The slave culture in America lies just beneath the surface in every interaction between black and white. It is the albatross around the neck of America. It is the unwelcomed guest at every table. As Virginia Gov. Robert F. McDonnell (R) said on 7 Apr 2010 concerning slavery when he issued his proclamation declaring April Confederate History Month "slavery has left a stain on the soul of this state and nation. Slavery was an evil and inhumane practice that deprived people of their God-given inalienable rights and all Virginians are thankful for its permanent eradication from our borders." A little soap and sensitivity training has not been able to wash away this stain. It is a perpetual curse on our institutions.
A 3-2 decision is what I had predicted, but I anticipated that it would be a reversal and not an affirmation. This does nothing to clarify the law on these issues. This does not inspire confidence in their decisions.
I would rather it had been a 5-0 reversal or even a 5-0 affirmation. At least that would have shown that the judges were firmly convinced on the issues and the law. This decision is neither hot nor cold. It is luke-warm. Military justice is not rushing towards certainty nor egalitarian enlightenment, but rather it is sloughing towards gamorrah. What does this say about the evolution of American military justice of the moral progress of race relations in America?
Those who are looking to champion human rights at Guantanamo Bay, Cuba would be better served to look closer to home. Webster Smith might have receiveded more sympathetic attention if he had served his six month prison sentence with the terrorist suspects in Gitmo, Cuba. Those terrorists only wanted to blowup America; they did not want to fraternize with white American girls. They did not set off our slave culture racial polarizing defenses. The terrorists wanted to make war; Webster Smith wanted to make love. The mantra of the 60's, Make love not war, has no currency in the 21st Century.
More than 66 years after the court-martial of Jackie Robinson, military justice is still being used as a weapon against soldiers and sailors of color. Just as the Death Penalty replaced lynching in many Southern States, military justice has come to use due process and military law as a tool to keep Blacks in their place. The slave culture lives on in the hearts and minds of the white military lawyers along with institutionalized racism.
This entire Webster Smith saga has been like a bad dream for the Coast Guard Academy and the Smith family. It has done nothing to advance the relations between Black and white military members. To have watched this episode of Coast Guard history unfold from the midnight abduction of cadet Webster Smith from his cadet barracks to the CAAF decision is like sleep-walking backwards through American history from 1863 towards the Fugitive Slave Laws. That is how slave-catchers used to operate. Blacks are still paying the price for white guilt and white fear.
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Virginia Gov. Robert F. McDonnell (R) apologized on Wednesday 7 Apr 2010 for failing to include slavery in his proclamation declaring April as Confederate History Month. In his statement, McDonnell said slavery "has left a stain on the soul of this state and nation."
(A History of American Law, L. M. Friedman, 3rd Ed., 2005, Simon & Schuster)
An amazing piece of work that is not just a history of the American legal system, but a history of America as seen through its laws. It manages to cover everything from the development of equity law to the explosion of torts to the history of commerce and contracts, all without being pedantic or overly general.
Friedman relies on odd laws, great cases, and telling quotes to explain his story. In discussing the battle between civil and common law in California, he quotes an early California legislature which waxed poetic on the wonders of the caveat emptor rule (it apparently caused commerce to "whiten every sea, woo every breeze"). He discusses an early law in Virginia that classified slaves as real estate instead of chattel, highlighting their novel nature in English legal history. He discusses the 1878 case of Hall v. DeCuir, where the Supreme Court overturned a Louisiana state law forbidding racial discrimination on common carriers as an unconstitutional burden on interstate commerce, showing how the Court not only blocked federal anti-discrimination laws, it blocked any state attempts to staunch racial animosity, the Fourteenth Amendment notwithstanding.
Friedman also wades into such complicated debates as the one surrounding the "Field Code," first passed in New York in 1848, which began the "codification" of American law yet could only get as far as clarifying civil procedure. Codes on penal and public law would sometimes have to wait a century for passage, at least outside the so-called Wild West (which he shows was overrun by more lawyers per capita than even the developed East. In this story, the West was filled with litigators, not cowboys.)
I thought that this book might simply recapitulate some of Friedman's work in "Crime and Punishment in American History," but the sections on criminal law are brief, and usually deal with oddities and legal development. Overall, the books compliment each other nicely. Also, despite its broad title, the book focuses overwhelmingly on the nineteenth century (the colonial period is too sketchy and the 20th century is big enough that he deals with it in-depth in another book). Still, this is a great work that gave me a new appreciation for the world of the law
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