Go Down, Moses

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NOTE: I’ve given some thought to posting over Christmas and into the new year and decided not to do so but rather to republish this piece from November 17, 2014 and let it sit at the head of the blog for a while. The context in which I wrote it is clear in the text, I think. If you’re looking for my advent pieces for this year you’ll find them listed in the sidebar.

Oh boys, take me back,
I want to ride in Geronimo’s Cadillac!

These are night thoughts. Looking over the past year I see that I haven’t written much. I could perhaps defend myself by pointing out that I was seriously ill last summer. But besides being a cop-out that doesn’t account for time outside the six weeks or so of my illness and recovery. I’m now thinking the real reason for my relative silence is that I’m more and more persuaded that my country is in a sort of semi-fascist historical trough, the kind we have experienced from time to time in the past, when the worst of us as a people and the worst of our social and political potential are in charge. I’ll not dilate upon this much. The mere fact that here in Saint Louis we are waiting for the Ferguson grand jury verdict like armies on the eve of a great battle says multitudes to me, with the governor provocatively having already called up the National Guard and declared a 30-day state of emergency. I plan to do what I can to help with the sanctuary effort of my church in the event of widespread protest. I’ve already made clear what I think about the murder of Michael Brown; but until the law of the land changes there will be more Michael Browns, and their deaths will continue the procession of wrongs without remedy that our present governing classes seem not only willing but also sometimes eager to inflict upon the rest of us.

Why we tolerate this deplorable state of affairs I’m not certain. But at the end of a long and disappointing summer, I’m proposing to myself as a tentative analytic that it is less a function of our divisions as a people than a sign that we have lost heart. The liberal state in our time has become bogged down in bureaucratic confusion and thralldom to the corporate interests that have been its chief financial underwriters in recent years. It has also fallen victim to a kind of paranoia of which our globally ambitious surveillance effort is one arm and our local epidemic of publicly supported police violence is another. These two phenomena have grown vigorous while and because nobody is steering the ship of state.

And in the absence of governance we have experienced the growth of a spate of power centers, industries if you will, that have developed huge economic appetites and require steady streams of human fuel while producing equally steady streams of human waste. Witness the growth of higher education which now discharges the majority of its clients with burdens of debt that will consign them to the human waste pile from the beginning of their post-college lives (I don’t say their careers because most of these students will not have careers in the way that their parents had them). Or witness the growth of the prison industrial complex, our chief contemporary human landfill.

I think the real significance of the economic crash of 2008 may turn out to be that it was the end of our culture’s ability to meet citizen demand for the means to the good life, or the introduction of permanent scarcity and its accompanying social consequences. We mounted no serious effort to overcome or mitigate the consequences of the 2008 crisis as we did in the 1930s during the great depression. We now experience the same social ills that afflicted us during that terrible period, but we have made no corresponding efforts to cure them. In the absence of governance our chief response to the deplorable state of our republic is helplessness. We have become expert at turning away from cruelty. Some of us wring our hands and cast about for partial and/or inadequate remedies for the suffering we see around us, and others (many of them turning handsome profits from the misery of their fellow creatures) smile, talk about trickle-down economics, and support laws against feeding the homeless.

Several times now I’ve said that I want to write something about why I love my country, but I’ve almost come to the conclusion that one cannot love a country such as ours. One experiences one’s country through its history and one’s small participation in it. That is sometimes very difficult to love. An honest modern person will acknowledge the fear and disgust that political engagement sometimes generates. A more serious person may suspect that patriotism is grounded in a need to escape from that fear and disgust, as Leguin’s Genly Ai puts it, or in the terror of history, to steal from Eliade. More to the point, perhaps, my desire to express love of my country may be a desire of the boy I once was, and still am deep down somewhere. That boy would have written a peroration that quoted Walt Whitman and Robert Frost—God love him. He could love his country for what he thought it might become and bracket his knowledge of the occupied place his country actually was.

But when my now near octogenarian mind plays over remembered experiences in which I have felt the most intense pleadings of love I naïvely associated with my country, I find that these are grounded in particular historical moments and in awareness of being, or having been, imbedded in the complex ecologies of particular places. I have a great love for the plains of West Texas where I did most of my growing up; for the high deserts of northern New Mexico where I was born. I went to school in these places and was loved and fostered by teachers who knew of my father’s death in the war, as I became that boy who loved Frost and Whitman but perhaps lacked some toughness they may have had. For in those environs more than the deer and the antelope played: Geronimo, Cochise, Kit Carson, Charles Goodnight, Sul Ross, William Bonney, Cynthia Ann and Quannah Parker, Lew Wallace, Padre Martinez and Bishop Lamy, my own mother and father, and many another had their day, came and went, loved and hated and sometimes killed one another and one another’s kin.

I love and will always love the memory of the serendipitous regions of North Carolina where I lived for fifteen years. There the speech of the people lounges on a great porch crowded with wisteria, its branches sometimes thicker than my arm. There music rises up out of the pine barrens and tobacco fields like the flash of a bug zapper in the night. There Moses still shouts, “Let my people go!” And I now have arrived with a new love in my heart on the banks of this continent’s great river, for the old brick and mortar city where I now reside, named for a not-so-good French king, where great barges push their cargoes up and down river and the progeny of immigrants past and present from Somalia to Bosnia to Italy and Poland to the Sudan to Thailand and Vietnam to Mississippi and Alabama (and Texas) contend for space amongst gangways, bluffs, and caves, where the great silent water flows by in the night, laden now with ice floes to which morning may bring eagles searching for fish.

For many years I sought to love my country thinking the betrayals I experienced, that all lovers of justice have experienced in the past sixty plus years, were aberrations that would in the long run be put right. But guess what, those betrayals are the norm. For all the high-sounding stuff in our founding documents and hymns to our exceptionalism, we Americans are just like everybody else. We rob and rape and steal and kill and cheat our friends, and we hope to get away with it, just as we think we have escaped our country’s genocidal past. Indeed we have become skilled at creating complex abstract denials of that past that proclaim our righteousness in getting away with it (at this moment in our history we are doing a lot of that). For a while I thought I couldn’t love my country because Country (capital C) is another abstraction, but that’s only partly true. I can love abstractions all the way from the third law of thermodynamics to the music of Bach. But there are abstractions and abstractions, depending on the way the knife cuts. Maybe I can love my country’s history but not the hypocrisy of it, just as I love my friends and my kin and their places and mine and the memories they generated, but reject much of our foolishness, like the blackface act that friends and I once performed on my high-school stage. Or maybe I both love and need the hypocrisy too. Or maybe love and despising aren’t that far apart. Clearly I both love and despise memories I, myself, have generated; and perhaps that’s part of it too.

I mention Eliade above. Eliade’s distinction between linear and cyclic time rests on the difference between the historical and the cosmic. One’s engagement in the life of one’s country plunges one into history, into the political, into the constant ebb and flow and strife of events, essentially meaningless in itself, but perhaps touched by love. If in the final analysis, love of one’s country is grounded in the concreteness of places and people and events rather than in their ideological trappings, then one can also love people with whom one disagrees and is sometimes angry, perhaps even people whose ideas one despises, as one loves oneself. These possess materiality. They have existential force and stand out from the stream of experience. There is no taint in loving them. They are real and whole, and one’s love is a response to their reality and wholeness. Love urges us to find meaning in things and sometimes cures anger and the other historical passions. This is what Faulkner meant when he described Old Ben, the bear, as taintless and incorruptible. It requires a cosmic perspective too, to care about land, to struggle against the ruination of land and people and animals. Enmeshed in history there is only the struggle that is today. It is from a cosmic perspective that beauty and the possibility of a deeper love emerge, even love for the terrible darkness of the worst we do, and that is as it must be. There is no place else for us to go.

I have seen these ways of God: I know of no reason
For fire and change and torture and the old returnings.
He being sufficient might be still. I think they admit no reason; they are the ways of my love.
Unmeasured power, incredible passion, enormous craft: no thought apparent but burns darkly
Smothered with its own smoke in the human brain-vault: . . .

If one can love speech and voices and music, abstracted from their agents or not, perhaps one can also love history that one deplores. Geronimo lies buried at Fort Sill. He, and the folk he killed, and the folk who made him a prisoner and a caricature in his own place, are all long dead. In his grave and in the memories he generated, Geronimo is timeless. If there is a saving grace in humanity, if there is any real human hope, it is not in prophetic politics as Whitman would have had it. It is in place, in land and water, in the topsoil that Wendell Berry reveres, in song, in the twang of the banjo and the yelp of the coyote, and in the names of things and people, in our clumsy and beautiful bodies, in the gristle and boniness of us, and in our stubborn persistence. Finally perhaps, it is in the peace that may come to us as we contemplate these things at the end of a long day when greed and the other savage hungers have receded. At such times without sleep as new snow stirs the darkness outside one’s window one can, almost surprisingly, find oneself native to the places one has lived, to one’s times and ways and kinships. In and amongst these things we live and move and have our being. And in and amongst them too, we lie down at last.

into my own again

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I wrote this essay two years ago in the fall. West Texas is on my mind again, perhaps because I’m going there in a few days for my fifty-ninth high school reunion. I want to write an essay about why I love my country. This isn’t it, but I thought I’d post it again for a while because whatever love I have, whether I like it or not, grows out of some hardscrabble not unlike that around my grandparents’ little house in Las Cruces, shown here in a photograph I talk about.

Recently I was sent a collection of family photographs. Among them is this snapshot taken outside the farmhouse in Las Cruces, New Mexico, where my father and his brothers and sister did much of their growing up. My father is the tall one in the middle with his hands on my grandmother’s shoulders. Her youthful appearance startles me. The elderly woman on the far left is my great grandmother, Melissa Peterson. The farm in Las Cruces was a homestead. Only my uncle Bill (standing just behind Mrs. Peterson and my aunt Frances) was born there. My father, his brother Randolph (the one with the silk handkerchief in his pocket), and his sister were born at an earlier homestead near Sayre, Oklahoma. There’s no date on this photo, but I think it was taken in 1930 or ’31. The subjects seem to be dressed in their best, on their way somewhere.

Except for my father they would all live long lives. Mrs. Peterson lived to be 82; my grandmother and two of her children would live almost a century, reaching the age of 99. Uncle Randolph, the eldest of my grandmother’s children, would live to be 94. And except for Mrs. Peterson they would all find themselves far away from Las Cruces at the end of their lives, most of their experience shaped largely by their country’s mid-century adventures in the far east. All of my grandmother’s children went to college. As I look at these images of them, see the hardscrabble under their feet and the house with its look of temporariness, I am thinking how remarkable that is.

I’ll not tell all I know of their stories now. My father and my uncle Bill were already in medical school, I think; uncle Randolph on his way up the corporate ladder in what would become AT&T. My aunt Frances would marry a man who became a Brigadier and travel widely. My grandmother, once her children were launched, would travel widely as well, living in Honolulu for a while and finally settling in Seattle. But the various fulfillments of these separate destinies were long ahead of them all in 1930—what strikes me in this photo is the seeming anticipation in their demeanor, and a certain innocence.

My title is borrowed from a poem of Robert Frost’s that anticipates the end of a long life as a time of certainty. The poem’s speaker imagines that friends he left behind, should they catch him up at the end of life’s journey, would discover him to be not “changed from him they knew— / Only more sure of all [he] thought was true.” These are the thoughts of a young man, part of Frost’s first book, A Boy’s Will, published when the poet was thirty-eight years old. At this distance they seem a recipe for closed mindedness.

**********

I recalled the lines from Frost as I was thinking about some lines from a much longer ago dead poet, Henry Howard, Earl of Surrey:

Martial, the things that do attain
The happy life, be these, I finde.
The richessse left, not got with pain:
The frutefull ground, the quiet minde:

After I factor out the mindset of the landed aristocrat, there remains in this translation of Surrey’s the still attractive classical ideal of the quiet mind; though Surrey’s own mind was less than likely to be quiet. Like Martial he lived in turbulent times. He led a dangerous life as a Catholic in the twilight of Henry VIII’s reign and was ultimately executed as a traitor. He was perhaps 30 years old when he died.

But the ideal of the quiet mind need not be thought youthful, nor need it presuppose certainty. It is a stoic ideal, conceived as a response to uncertainty and frustration, a consciousness that seeks its own in the midst of political and other stresses; and it’s sometimes held up as a goal of liberal education, a mind both copious and quiet, “liberally furnished with objects of contemplation,” to paraphrase Dr. Johnson, another latter day stoic, who between herculean labor and coping with Tourette’s syndrome and other afflictions, had plenty of mental noise in his life.

I’ve just finished a week’s reading that included, in addition to various consumables (by which I mean newspapers, blogs, media, etc.), John Gardner’s Grendel, which my class discussed last week, S. C. Gwynne’s Empire of the Summer Moon, a popular meditation on the the winding down of the Indian wars in the southwest (yet another retelling of the story of Cynthia Ann Parker, the exploits of her son, Quannah, and the capitulation of the People), and Wendell Berry’s Home Economics.

I turned to Gwynne on the recommendation of friends I encountered in my home town of Abilene, Texas where I recently attended the 57th reunion of my high-school graduating class and was struck by the realization that my grandparents had arrived in western Oklahoma around 1901 in the aftermath of the turbulent events Gwynne’s narrative brings to mind. From Gardner I took away (again—I’ve read Grendel many times now) what seems the quite reasonable claim that Whitehead was right to assign the name of God to that which limits action and energy and therefore calls forth “the entire multiplicity of eternal objects.”

And I turned again to Berry because I am trying to formulate for myself a rationale for the liberal arts in contemporary university education. I’ve previously written about Berry’s essay, “The Loss of the University.” But now I’m more interested in his thoughts on sustainability and his claim that community has economic value, because it seems to me that whatever case we make for the liberal arts in our day has got to take into account the material conditions required for their study and the material benefits of the same. If we can’t make the case that the liberal arts have practical, economic value, it is hard to argue that they have cultural or spiritual value. As Berry puts it with respect to community, “Can there be a harvest festival where there is no harvest?”

**********

Two years ago I asked my class to read Alasdair MacIntyre’s After Virtue. It’s a beautiful book, though I don’t agree with much of it, including its core argument. MacIntyre says, in a preface to the third edition, that he was not yet a Thomist at the time he wrote the book (1981); but what I think I loved about After Virtue when I first read it in the mid-eighties was its insistence on the importance of a conception of human nature. Without such a conception (and I like Aristotle and Thomas about this too) the Enlightenment notions of liberty and equality are pretty empty. Something more is required, it seems to me, as a ground for these notions than the naked assertion of self-interest—some notion of human good, potential or real, immediate or lost. Adam Smith, often cited as the godfather of neoliberal economics, believed in a moral sentiment, physically present in human being.

The enlightenment tradition has tended to emphasize private judgment, private enterprise, etc., as opposed to centralized coordination. This was liberating in the eighteenth century, when people could still be put to death for witchcraft. Now, when “The notion that every action is is both a private experience and a a public utility,” as Whitehead says, has all but died out, individual beliefs and practices tend to be asserted as near absolute private entitlements. We see this on both sides of the political spectrum, but it has particularly emerged recently in the argument against government mandated health care. Obamacare, so called, infringes on my right of self-determination. Government, so we are told, has no right to tell me, as a sovereign individual, that I have to purchase health insurance. It’s the old seat-belt argument.

Here is Aquinas’s fifth proof of God, the one I like the best:

The fifth way is taken from the governance of the world. We see that things which lack intelligence, such as natural bodies, act for an end, and this is evident from their acting always, or nearly always, in the same way, so as to obtain the best result. Hence it is plain that not fortuitously, but designedly, do they achieve their end. Now whatever lacks intelligence cannot move towards an end, unless it be directed by some being endowed with knowledge and intelligence; as the arrow is shot to its mark by the archer. Therefore some intelligent being exists by whom all natural things are directed to their end; and this being we call God.

I don’t like this because I think it succeeds as a proof. Its conclusion in no way follows from its premises. As an argument, it’s an exercise in question begging. But it’s beautiful, and beauty is truth in a way; though Keats claimed too much for the idea.

Still, my point here is that without such a conception of intelligence grounded in the material stuff of the world, the enlightenment conceptions of liberty and equality degenerate into empty assertions of individual autonomy that are easily transformed into the right to bear arms, the right not to purchase health insurance, the right not to wear a seat belt, etc. And politics aside, without such a conception the fundamental issues of ethics and aesthetics degenerate into cost benefit analysis that deserves comparison with the excesses of medieval scholasticism, or into empty claims about the timeless worth of things that we know only as inferences and extrapolations.

**********

At this point in my life I am more uncertain than I have ever been about the things I hold dear, though I am pretty comfortable in my skin. I tend to think that certainty, not uncertainty, is the enemy of life. None of us knows when he will die–that’s the fundamental uncertainty–and I don’t need to be certain about the ideas that I use, because my practice constantly confirms their usefulness. Unlike MacIntyre I embrace and celebrate democratic pluralism. To be sure, it gives us Sarah Palin and the gun toting folks in Arizona and elsewhere. But it also gives us what I identify, following Richard Rorty, as liberal hope.

Uncertainty seems basic to the hope for a better world. An uncertain person, such as I am, tends to embrace bounded ambition in regard to the potential for historical accomplishment, or social progress. But the person who seeks certainty seeks an establishment, a city on a hill, the end of history. I think history and the end of history both abide in the moment, and I am content with that. I embrace the long tradition of uncertainty in Christian mysticism. (See, for instance, “The Cloud of Unknowing.”) Rather than doctrine, I embrace prayer. I find common prayer particularly efficacious, though I have no belief in, or knowledge of, a personal god.

I am not uncomfortable with any of this, perhaps because I am a poet and grounded in poetry. I read, for instance, the ending of “Little Gidding,” as it draws together the poet’s personal quest with Dante and Julian of Norwich, as a method of being. Here are the lines:

We shall not cease from exploration
And the end of all our exploring
Will be to arrive where we started
And know the place for the first time.
Through the unknown, unremembered gate
When the last of earth left to discover
Is that which was the beginning;
At the source of the longest river
The voice of the hidden waterfall
And the children in the apple-tree
Not known, because not looked for
But heard, half-heard, in the stillness
Between two waves of the sea.
Quick now, here, now, always?
A condition of complete simplicity
(Costing not less than everything)
And all shall be well and
All manner of thing shall be well . . .

And I think of truth as but one of the conditions of thoughts that one loves. The difficulty of Truth and Truth establishments is that they drive truth (small t) out of the room. In this regard I am remembering something from Hannah Arendt, in one of her letters to Mary McCarthy, “The chief fallacy is to believe that Truth is a result which comes at the end of a thought-process. Truth, on the contrary, is always the beginning of thought; thinking is always result-less. That is the difference between ‘philosophy’ and science. Science has results, philosophy never. Thinking starts after an experience of truth has struck home, so to speak. . . .”

I’ve learned a lot from MacIntyre, even though I don’t agree with him about much. I particularly don’t agree that Aristotle needs vindication. Aristotle remains with us, as Plato does, perfectly available to the next thinker who might wish to use him as Aquinas used him, just as the Homeric poems remain available to poets. I’m not entirely sure of this, but I think MacIntyre’s use of Aristotle may be perverse. It’s not an adventurous use in any case, as Whitehead’s use of Plato is adventurous, for instance.

“In my end is my beginning.” All my grandmother’s children went to college. I loved college so much that I’ve never wanted to leave. Though I’ve knocked around a bit and seen a bit of the world, I remain primarily a mental traveler, like Joyce Cary’s “randipole Billy Blake,” perhaps not unlike my grandmother’s children, too—on my way somewhere unknown, unknowing.

secure in our persons

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Between the years of 1969 and 1972 I had a brief love-hate relationship with a 1959 Porsche. The model on the right is from 1958 and somewhat cleaner than the car I owned, but in all other respects that’s my car. Also during those years I commuted back and forth four days a week from Durham, N. C., where I lived, to Fort Bragg, N. C., where I was attached to a branch of North Carolina State University.

My work was in the evenings. Usually I finished teaching at 9:30 and drove back to Durham after that. I didn’t drive the Porsche much because it wasn’t entirely dependable and I had visions of being stranded in the dark on the lonely farm road between Spring Lake and Lillington. But on one particular night, when circumstance had dictated that I drive the Porsche, I had an interesting encounter.

Somewhere on that dark stretch of road I mention, full of curves and declivities that could fill up with fog and make for chancy driving, especially in an old vehicle with a six-volt electrical system, I noticed that a car behind me kept moving up uncomfortably close to my rear bumper and then falling back. At some point I began to move over as far as I could to the right edge of the road (which had no shoulders) and blink my lights to invite the car to pass, but to no avail.

Finally I saw a flashing blue light and pulled off the road onto a grassy patch. After I showed the policeman my bona fides, I was asked what I was doing on the road at night. And though I had every right to be where I was and knew I had broken no law, I explained politely that I worked at NCSU Ft. Bragg and was on my way home to Durham after an evening of teaching my classes.

The policeman then told me that he had stopped me because I seemed to be driving erratically, weaving about on the road, and he had feared I might be drowsy. Both he and I knew that I had only been weaving about because his intrusive headlights had alarmed me, but I thanked him for the warning nevertheless. He returned my bona fides, reminding me to be careful, and allowed me to go on my way.

I had been profiled. I was driving a strange foreign car on a N. C. farm road at night where I didn’t belong. I don’t know what that young police officer thought he would find in my car, but he was surprised not to find it and a bit chagrined, I thought. These days I would likely have been ordered to get out of my car, perhaps required to submit to a search. That was then.

XXX

The dog days finally arrived in St. Louis last week as the streets of Ferguson cooled down. Sunday’s Post Dispatch carried a full page ad from the National Association of Police Organizations expressing support for Officer Darren Wilson and portraying police nationwide as suffering public servants intent upon the protection of citizens and grief stricken that “a life was cut short in this case.” It’s a well-crafted letter, but its claim of solidarity with the motto “To Serve and Protect” rings false to me in light of the spectacle we have witnessed in this city. To my mind the militarized and provocative police response to citizen outrage over the killing of Michael Brown is of a piece with the killing, itself; and both are cases which display the disturbing fact that citizen control of police has become a mere myth. Police are out of control, and the law protects them.

To be sure there were looters among the protesters. Shots were fired. Molotov cocktails were thrown. Some journalists abused their freedom. But most arrests were for procedural violations, mouthing off at police, stepping off a sidewalk, failure to move rapidly when ordered to do so by police. A few carefully crafted photo ops showing Captain Ron Johnson of the Missouri Highway patrol hugging protesters hardly weigh in the balance existentially, however much they may have done from a public relations standpoint. In spite of the change on the ground after Governor Nixon replaced local police with the Highway patrol, what we have seen in this city, and what we continued to see as protests continued, is far more correctly characterized by a statement from a Los Angeles police officer quoted in Daily Kos several days ago [emphasis added].

Regardless of what happened with Mike Brown, in the overwhelming majority of cases it is not the cops, but the people they stop, who can prevent detentions from turning into tragedies. […]

Even though it might sound harsh and impolitic, here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me. Most field stops are complete in minutes. How difficult is it to cooperate for that long?

Much has been written about the lack of transparency in official responses to the shooting of Michael Brown, but lack of transparency is hardly the issue when Ferguson police have seemed inclined to shield Oficer Wilson and to portray Michael Brown as a criminal. And in the final analysis whether Brown was armed, how many times he was shot, whether his hands were up, indeed all the aspects of this miscarriage of justice that “shock the conscience,” will carry little, if any, weight in law. For present law is so skewed in favor of police power as to make it well-nigh impossible to hold a police officer accouuntable for injuring or killing a citizen, no matter how egregious the officer’s conduct may have been.

The stern likelihood is that there will be no justice for Michael Brown. The probability is that Officer Wilson, who (as the Post Dispatch pointed out in an early editorial) is being given all the benefit of the due process his actions denied Michael Brown, will be found to have acted within established guidelines for police conduct. What actually happened in the Brown/Wilson confrontation may remain in dispute. And even if clear and irrefutable evidence emerges that Wilson shot Brown after Brown had made a gesture of surrender, a court would only have to find that Wilson had a “reasonable perception of being threatened with bodily harm” in order to exonerate him.

Even if the officer made a mistake in shooting, that will not be enough to support criminal charges so long as his mistake was reasonable — a determination in which the officer will receive some benefit of the doubt because of the split-second judgments that he had to make.

Or again:

Experts on police shootings say the investigation, including the grand jury deliberations, will focus on whether Wilson had a reasonable perception of being threatened with bodily harm. The experts say it does not matter how many bullets Wilson fired. Police are trained to shoot at the center of mass and stop the threat.

The Supreme Court established the reasonable expectation standard in the 1989 Graham v. Connor decision, denying redress under the fourteenth Amendment to a diabetic victim of police brutality who had been assaulted in a situation where he had committed no crime, had sustained multiple injuries including a broken foot, and then had been unceremoniously dumped in his front yard by police when they could find no crime to charge him with. The court also narrowed the fourth amendment protection in this case requiring that the defendant prove that police had injured him “maliciously and sadistically for the very purpose of causing harm,” in effect requiring proof of premeditation, a standard so high as to render citizen redress almost impossible. The consequence of this deplorable decision has been to give police carte blanche to abuse citizens. And of course the most egregious abuse this decision has fostered has fallen upon members of socially marginalized groups, racial and ethnic minorities, the mentally ill, the elderly.

Nevertheless it appears that there is popular support for the standard. St Louis Police shot and killed Kajieme Powell a few days ago, an apparently mentally ill man who behaved erratically, brandished a knife, and called out to police to kill him. Acording to a witness, “The man was agitated and animated. He said, ‘Kill me!’ They didn’t have any alternative.” Nobody seems to be questioning that assessment. Police killed the man, declared the incident to be suicide by cop, and that was that. The Supreme Court’s mapulation of law regarding the bill of rights over the past half century or more now allows police to kill citizens even when police behavior “shocks the conscience.” And with a handy citizen witness whose conscience was not shocked by the Powell shooting, everything seems perfectly copacetic. (See James Boyd White, Justice as Translation, 103ff., re “shocks the conscience”).

Senator Claire McKaskill intends to conduct hearings into the police militarization that was on display in Ferguson over the past few weeks. We should all support those hearings. But unless Congress and the courts act to restrict police power to conduct searches and seizures, there’s very little hope of changing the culture of policing or the relationship between police and citizens. Here’s the fourth amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Long before the appearance of privacy issues that inform most popular concern over the fourth amendment these days, citizens of this country were no longer secure in our persons. And after all is said and done about the many economic, societal, and historical injustices that may have combined to produce the spectacle we have witnessed in Ferguson, Missouri over the past several weeks, it is the loss of the right to be secure in our persons that ought to disturb us the most.