I have long said, in the history of the United States, we should be wary of people who lead with the value known as "liberty." "Liberty" was often the rallying cry of slaveholders dating back to Patrick Henry, and later Confederates, and then, starting in the 1950s and 1960s, the soft language about "liberty" to refuse service at public accommodations as deprivation of private conscience. One hears this language in those who wish to refuse public accommodation services to gays and lesbians, this time with the qualifier, "religious liberty."
We now have the spectacle of Senator Rand Paul (R-TN), who, in the past, has said his so-called "libertarian" principles would have caused him to oppose the 1964 Civil Rights Act, now refusing to support the anti-lynching bill which Congress is on the verge of passing.
I listened to Rand Paul's speech in favor of his amendment to limit the scope of the legislation to serious bodily injury or death, and thought, maybe he is not so off here. The proposed statute's title says "Lynching," a word which has long implied death, torture, or severe beatings by a group of individuals for racially motivated reasons. As phrased, this statute would appear to expand the term "lynching" to include someone getting shoved or someone getting a mere cut no different than what happens in a touch football game--but with racial or ethnic animus. But, then, I went through the proposed statute's wording in detail and went through the previous legislation upon which it is built. It was then I realized Senator Paul is playing a con game that is, sadly, consistent with the history of legislative obstruction racists in Congress have long perfected, going back to the Constitutional Convention, let alone the Antebellum period, meaning before the US Civil War (1861-1865).
Let's start with the language of the bill, which is, again, on the verge of passing in the Congress. It states, after a long preamble of "Whereas'es":
Sec. 3. LYNCHING
(a) Offense.—Chapter 13 of title 18, United States Code, is amended by adding at the end the following:
Ҥ 250. Lynching
Whoever conspires with another person to violate section 245, 247, or 249 of this title or section 901 of the Civil Rights Act of 1968 (42 U.S.C. 3631) shall be punished in the same manner as a completed violation of such section, except that if the maximum term of imprisonment for such completed violation is less than 10 years, the person may be imprisoned for not more than 10 years.
I then reviewed 18 USC 245, 18 USC 247, and 18 USC 249 to see what they state. 18 USC 245 is a law which sanctions persons who act, under alleged authority of law, to deprive other persons of rights to participate in what are delineated as "federally protected activities." 18 USC 247 makes it federal crime for a person to damage religious property or obstruct, through threat of force, persons in the exercise of religious beliefs, with an additional component for racist or other similar motivation. 18 USC 249 is the federal hate crimes statute.
What I noticed about the three statutes, 245, 247, and 249, is none of them had any wording that included "conspiracy," "aid," "abet," etc. Note now the language of proposed 18 USC 250 "Lynching" expressly using the word "conspiracy" to add to three other statutes. The use of the word "conspiracy," then, goes to the very definition of lynching in the sense of multiple people being involved in the violation of another person's civil rights.
However, there is already a section for "conspiracy" to violate civil rights in the same statutory chapter, 18 USC 241. The statute states in part:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same. (Underline added)
Therefore, prosecutors across the United States have already had the right to prosecute two or more persons who conspire to violate 245, 247, and 249. The proposed statute, then, appears to be symbolic, which is why nearly all members of Congress, including the modern John C. Calhoun, Senator Mitch McConnell (R-KY), are supporting this bill. The reason for the long preamble of the proposed statute is, therefore, to provide the nation with a history lesson about lynching, and most importantly, Congress' own failure to pass the legislation. This makes the preamble to the legislation more substantive and important than the actual legislation--and makes the legislation essentially a resolution in statutory guise. Here is an op-ed by an African-American journalist, Stacey Patton, who has written extensively on institutional and unofficial violence against African-Americans, on the token symbolism of this bill.
Sadly, as we know from long observation, Congress loves nothing more than symbolic acts, virtue signaling, and the like. If one watches Senator Kamala Harris (D-CA) speak after Rand Paul's speech, one hears little but emotion and outrage from her, which is, knowing how intelligent and sharp she is, merely grandstanding and virtue signaling, a specialty in which Senator Harris excels. Harris, who, as District Attorney in San Francisco, liked to lock up poor, minority mothers to somehow make their children attend school with more regularity, says nothing in her outrage that would show us how this bill would result in any substantive change in the law. Instead, Harris sputters in emotionally-laden rage, which is perfect for MSNBC "commentary."
However, I am not here to defend Rand Paul. I write to condemn Rand Paul's objection and proposed amendment because his words and actions are also symbolic. We already have "conspiracy" embedded within the statutes 245, 247, and 249, which would include a simple cut, abrasion, or wound that heals in little time or is merely temporary. And, contrary to Paul's concern trolling, there is no evidence police officers have been hampered in apprehending people accused of crimes nor have there been abuses of the existing laws regarding deprivation of federal civil rights. Rand himself admits, ever so quickly and slightly in his remarks, the symbolism involved in the bill. And Harris, working herself up in a quivering faux outrage voice little different from the woman in Central Park trying to sic police on a black man for having the temerity to request she follow dog leash rules in that park, faintly admits, at one point, the bill's symbolism.
Is one symbolic gesture worse than the other? Yes. Rand's symbolism is far worse. Rand is arguing for a narrowly-conceived, technical legal wording in a one-line statute (apart from a long preamble), which itself is based upon word-police political correctness concerning the word "lynching." For Rand Paul, who ranted against political correctness, when demanding more attention be made regarding the Obama administration's response to the 2014 ebola virus situation, as the virus came from, hmmmm, Africa, his sudden concern for politically correct language is hypocrisy in an odious cause. When placed in the context of symbolism and virtue signaling, what we see is Rand Paul's action is not virtue-signaling. Instead, Paul is vice-signaling in acting to block passage of a bill that merely represents recognition of the US Congress' own failure to protect African-Americans from official and unofficial violence for over a century after the Civil War.
In Rand Paul's action to block the bill, Paul is symbolically upholding and re-affirming the history of racism within the US Congress itself, no matter how much he may otherwise protest, and no matter how much he claims to want to stop police militarization, and his claim in his speech that he may support ending the "qualified immunity" for police officers. Again, Rand Paul is the man who has already publicly said he would have opposed the 1964 Civil Rights Act (pathetically trying to draw some distinction between property rights and civil rights in that context, which is practically speaking, impossible). He is also insensitive to the very reasonable argument that much of the modern libertarian movement was founded, and developed, in concert with racism-based opposition to the civil rights movement, particularly in the American South, including Paul's state of Kentucky, than with any true concern for "liberty of conscience" or "freedom" of the "individual." When all of this is considered, Paul's symbolism in offering a symbolic amendment to a symbolic bill is insulting and ugly--especially when Rand acted on the day of George Floyd's funeral, and ten days of grief, outrage, protests, and rioting.
Yes, when this bill passes, and Trump signs the bill, and when Senators Cory Booker and Kamala Harris do their victory laps on MSNBC and CNN, I will be saying, as did Ms. Patton above, this bill is vacuous, symbolic virtue signaling, and that what is necessary are real structural reforms and accountability to combat deep institutional and informal racism in our society. However, it is important to notice, right now, what Rand Paul has done, and acknowledge how deep the racism in our society goes in whatever we choose to argue about nearly anything else. Rand Paul has shown us once more why anyone who studies the Antebellum period, especially, should not be fooled by the sectional arguments over tariff policy, internal improvements, the continental railroad, or any number of issues, or think the ensuing Civil War was about anything equal to or greater than slavery and racism in American society. Whatever we Americans argue about, then or now, there is, embedded within the arguments, the continuing deep stains of racism. To not acknowledge that simple fact is to miss the significance of the debates over those other issues that are otherwise separate from racism in American society. This is not to say there are not substantive policy disputes concerning tariff legislation, internal improvement legislation, and the like. However, I am saying these disputes can never be properly understood without recognition of the emotionally laden argument over race, from slavery, through Jim Crow, and through our present age of mass incarceration.
Rand Paul can pass all the lie detector tests in the world (assuming lie detector tests are valid), and tell us, at gunpoint, how he is not racist. However, his actions speak louder than any denial about where he stands in the continuing argument over racism in American society. The sad part is how Booker, Harris, Klobuchar, and Biden before them, have been accomplices, for their own self-promotion, in that continuing argument.
In Rand Paul's action to block the bill, Paul is symbolically upholding and re-affirming the history of racism within the US Congress itself, no matter how much he may otherwise protest, and no matter how much he claims to want to stop police militarization, and his claim in his speech that he may support ending the "qualified immunity" for police officers. Again, Rand Paul is the man who has already publicly said he would have opposed the 1964 Civil Rights Act (pathetically trying to draw some distinction between property rights and civil rights in that context, which is practically speaking, impossible). He is also insensitive to the very reasonable argument that much of the modern libertarian movement was founded, and developed, in concert with racism-based opposition to the civil rights movement, particularly in the American South, including Paul's state of Kentucky, than with any true concern for "liberty of conscience" or "freedom" of the "individual." When all of this is considered, Paul's symbolism in offering a symbolic amendment to a symbolic bill is insulting and ugly--especially when Rand acted on the day of George Floyd's funeral, and ten days of grief, outrage, protests, and rioting.
Yes, when this bill passes, and Trump signs the bill, and when Senators Cory Booker and Kamala Harris do their victory laps on MSNBC and CNN, I will be saying, as did Ms. Patton above, this bill is vacuous, symbolic virtue signaling, and that what is necessary are real structural reforms and accountability to combat deep institutional and informal racism in our society. However, it is important to notice, right now, what Rand Paul has done, and acknowledge how deep the racism in our society goes in whatever we choose to argue about nearly anything else. Rand Paul has shown us once more why anyone who studies the Antebellum period, especially, should not be fooled by the sectional arguments over tariff policy, internal improvements, the continental railroad, or any number of issues, or think the ensuing Civil War was about anything equal to or greater than slavery and racism in American society. Whatever we Americans argue about, then or now, there is, embedded within the arguments, the continuing deep stains of racism. To not acknowledge that simple fact is to miss the significance of the debates over those other issues that are otherwise separate from racism in American society. This is not to say there are not substantive policy disputes concerning tariff legislation, internal improvement legislation, and the like. However, I am saying these disputes can never be properly understood without recognition of the emotionally laden argument over race, from slavery, through Jim Crow, and through our present age of mass incarceration.
Rand Paul can pass all the lie detector tests in the world (assuming lie detector tests are valid), and tell us, at gunpoint, how he is not racist. However, his actions speak louder than any denial about where he stands in the continuing argument over racism in American society. The sad part is how Booker, Harris, Klobuchar, and Biden before them, have been accomplices, for their own self-promotion, in that continuing argument.
