Being an American civil rights lawyer is a lot like being a doctor, except your patient has more moving parts than just one bipedal sack of meat and bones and is therefore easier to misdiagnose, as I did a couple of weeks ago.
My patient is my community, a body I think I know reasonably well (better than my own). But what happened at the trial of the Heyburn 9 was akin to having someone go through scan after scan, finding only a tiny glob of nothing conclusive, scheduling an exploratory surgery just to be safe and discovering an abdomen full of giant, bulbous, malignant tumors.
The Heyburn 9 are activists who were arrested for shutting down Louisville’s immigration court by chaining themselves to the elevator bank at the Heyburn Building downtown. This act of civil disobedience was in keeping with a grand tradition of peaceful protest in that, according to the letter of the law, it was criminal trespass. They went to trial not expecting to get off scot-free but to draw attention to the nightmarish conditions faced by a wave of desperate immigrants.
Voir dire, the process of selecting a jury, is where some preliminary diagnosing of community ills may happen. Lawyers ask questions of about 40 people at a time and figure out what kind of biases they have. Before you start asking questions, you get sheets full of biographical information on each juror. Our jury panel for the Heyburn 9 case looked great on paper. Educated, not too many silver spoons, good minority representation, nurses, teachers, bus drivers, lawyers. A community cross-section.
I asked them: “Who here thinks there should be a wall along the southern border of the United States?” About 20 hands shot up. All walks of life. Educated, uneducated, white, black, young, old, tall and small. I tried to argue to the judge that pro-wall folks should be disqualified for holding an extreme political viewpoint, but that’s a tough case to make when half the room subscribes to it.
Who can remember a time before, say, last week? But I remember when a stupid, expensive, ineffectual, racist border wall was not a mainstream position. I remember a time when it was not just bad policy, but fucking crazy talk. Fewer of us remember that than I thought and that was misdiagnosis No. 1.
Then I asked: “Who would convict Susan B. Anthony?” after first having explained that she was arrested and tried for voting, because that was illegal for women to do until about 100 years ago.
I thought this question, inspired by a particularly adept colleague, a pretty clever one. The subtext is: Who would convict Rosa Parks? Or: Who would turn in the Jews if this were Nazi Germany? Or: Who would snitch on the fornicators of Gilead? It’s a no-brainer. If you have a shred of common decency that overshadows your automatic pilot, the one that tells you, “the law is inherently good, and inherent goodness becomes the law,” you know the answer. But again, I had misdiagnosed the patient. A little over half of them would convict Susan B. Motherfucking Anthony.
The Heyburn 9 were all convicted, but no one will go to jail, and no one will pay any fines. In a way, that’s a victory. But there is an illness present; an old flare-up of the raw fear of moving forward together, a malady that makes us tear out our organs without thinking about which ones are truly diseased, a toxin that tells the central nervous system the law is good no matter what. Until that moment in voir dire, I thought this illness to be dormant, but not terminal. Now, I’m not sure.
In hindsight, I realize my error. All the preconditions for serious illness were present. As more folks realize that America is an MDMA-dispensing whorehouse in Shangri-La for some people, and a nightmare of trying to get a third job to pay for insulin for others, rifts between the classes are increasingly apparent. Financial crises, technological advances that disrupt the usual flow of capital, people of color clamoring for fairer treatment and a wave of desperate immigrants — these, too, portend sickness in what, on the surface, seems a reasonably healthy society.
All this tumult has the status quo’s bleached briefs in a bunch, so they’re doing things like putting incompetent, unpredictable Arkham escapees in charge of the entire country. Those guys, in hopes that we don’t notice their continued supervillainy, tell us to blame all sorts of the downtrodden, especially immigrants, for our woes. That way, should things get out of hand someday, the American Brahmin caste can watch us all kill each other safely from afar. We’ve seen this before in every epoch. I just didn’t quite catch it this time until the patient was supine, on the table, flayed open.
Republics are volatile experiments. They can get infected with very bad ideas, especially in times of great change and those ideas can spread to the whole organism before you know it. They often recover, but the treatment can be pretty ugly. •
Dan Canon is a civil rights lawyer and law professor. “Midwesticism”is his short-documentary series about Midwesterners who are making the world a better place. Watch it at: patreon.com/dancanon.
