If Martin Luther King Jr. Were Alive Today…

[NOTE: Additional material was added to the end of this post at 12:30pm today]

… he might well not agree with the Martin Luther King Jr. whom we honor today.

But so what? We honor Martin Luther King Jr. because of who he was and what he did, not because of who he might have been and what he might have done had he lived longer than he did.

I have made that point before, but it seems worth making again on every Martin Luther King day, and so I repeat those earlier posts below:

[First posted on Martin Luther King Day, 2004]

What Do We Honor When We Honor Martin Luther King? (And Who Are “We”?)

When President Bush went to Atlanta last week to lay a wreath on Martin Luther King’s grave, he was greeted with demonstrations and howls of protest. “One protester,” the Atlanta Journal-Constitution reported, “held a sign that read ‘Bush — Zionist Puppet and liar.’”

Similarly, as InstaPundit has noted, Howard Dean was greeted with similar jeers when he appeared at a memorial service for Dr. King in Des Moines. One of the organizers of that service was quoted as saying “[t]his was nothing but a conniving way for him to sneak in and take up [sic?] a vote from the African-American community.”

This objection echoed a complaint of one of the organizers of the Atlanta protest of the president’s visit, Rev. Tim McDonald, who “accused Bush, who won just 9 percent of the African-American vote in the 2000 election, of being motivated more by politics than by any admiration for King.”

King, I strongly suspect, would have looked with favor upon white politicians, of both parties, seeking black votes. But not his most vociferous heirs.

These protesters imply that King’s legacy is their private property, which they have posted with “No Trespassing” signs at every entrance. If this is their attitude, perhaps they should reconsider the wisdom of making King’s birthday a national holiday. Or, failing that but perhaps more in keeping with the race preferences they now demand in King’s name, maybe they should consider urging the president to issue an executive order proclaiming that, since only blacks are welcome to honor Dr. King, the King holiday in the future will be limited to blacks. Everyone else should report to work as usual.

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[First posted 29 January 2004]

Original Intent And Original Meaning [And Martin Luther King]

Anyone interested in following the contours of high brow Constitutional interpretation will want to read several remarkable recent posts by Larry Solum and Randy Barnett. Rather than attempt to summarize them here, I am going to exploit them instead, which means anyone wondering whether my appropriation of one of their insights is fair will have to read their originals.

Very briefly (and again, this is not a summary), about ten days ago Larry Solum posted a fascinating long post on the current state of play regarding the theory of originalism. He discussed the increasingly important distinction between “original intention” and “original meaning.” An overly simple (but I hope not inaccurate) way of illustrating this sometimes elusive distinction is to look at the debate over how to interpret the 8th Amendment’s ban on cruel and unusual punishment. An original intent interpretation would say that the ban was limited to the specific punishments that those who wrote and then approved the Amendment in fact thought were cruel and unusual (you can see the problem already of determining a collective intention). An original meaning interpretation would also rely on historical evidence, but rather than asking what punishments the framers (for lack of a better term) had in mind it would examine the contemporary understanding of the words “cruel” and “unusual.” On this view, a particular punishment might well be unconstitutional even if the framers never considered it, so long as it fell within 18th century (not our) understanding of what those words mean.

Several days before Larry’s post, Randy Barnett, who is certainly one of the most impressive advocates of and practitioners of the new original meaning scholarship, posted a short but incisive discussion of the same intent v. meaning distinction, calling it “The Next Big Issue.” Randy explained that “[o]riginally [he] was not an originalist,” but eventually he

adopted a version of originalism based not on the intentions of the framers, but on the public meaning of the text at the time of its adoption and justified, not by popular sovereignty, but by the fact that the constitution is in writing. Its writtenness is a structural feature of the Constitution that would be undermined unless its meaning remains the same until it is properly changed.

Randy’s post elicited a reply from Caltech philosopher Dominic Murphy, which he quoted and responded to here. This post, like the others, is worth looking at, as are Larry Solum’s comments on the Barnett – Murphy exchange here.

The best place to look for a full discussion of this issue, and an impressive example of the understanding to which it can lead, is Randy Barnett’s impressive new book, Restoring the Lost Constitution. I should add that yesterday my wife and I drove over the mountains and up the Valley to Lexington to hear Randy discuss his book in a talk sponsored by the Federalist Society at the Washington and Lee University law school, and his performance was dazzling. (We could have driven a shorter distance to hear him at UVa the day before, but we were still iced in.) Randy has been posting his book tour itinerary on Volokh, and anyone who can should try to attend one of his sessions.

So, what does all of this have to do with Martin Luther King? Here is where I attempt to appropriate what Larry and Randy have contributed, and I should emphasize that this is my argument, not theirs.

In a recent post discussing some of the fallout from Martin Luther King’s birthday, I asked “What Do We Honor When We Honor Doctor King? (And Who Are ‘We?)’” There had been many protests of President Bush laying a wreath on King’s grave, nearly all of them criticizing him for betraying King by his opposition to racial preferences. Indeed, nothing seems to send preferentialists around the bend and over the top faster than critics of preferences quoting King’s “I Have A Dream” speech, as we always do.

And they always respond with one version or another of “if King were alive today” he would be a strong advocate of racial preferences. I have some reservations about this assertion, but on balance I suspect it is true. After all, all King’s followers, the NAACP (which had advocated a strong version of colorblindness in court for decade after decade), and virtually the entire Democratic party did an about face on colorblindness starting in the late 1960s, and there is no compelling reason to suppose that King himself would have stood against this trend.

Taking a page from the original meaning book, however, we can see that the proper response to the posthumous King’s probable position is, So what? King’s specific intent does not determine the meaning of the principle he evoked, either for his contemporaries or for subsequent generations. [P.S. It is also worth noting, however, as Randy did in his talk, that when we play the “if X were alive today...” game, we are not talking about actual intent but predicted intent, which is far different.] Of course in this case the text in question is not so dense and opaque, like “due process” or even “equal protection.” What part of wanting people to be judged by the content of their character and not the color of their skin is so difficult to understand?

Now, King’s speech is not a part of the Constitution (at least not of its text), but it has achieved a well-deserved iconic stature. It gave voice to an understanding of equality that traces it roots back at least to some of the abolitionists, that achieved partial but limited success in the Reconstruction Amendments, and that, finally, was embedded in the Civil Rights Act of 1964 in the year following King’s delivery on the Mall.

Thus I beg to differ with a commenter on my King’’s birthday post linked above. Begrudgingly, “[f]or arguments sake,” she was willing “to admit the possibility that one can disagree with another’s ideals while still honoring the person.” I believe those of us who continue to resent benefits or burdens being based on skin color are honoring the meaning of Martin Luther King’s ideals much more fully than preferentialists who argue that if he were alive today he would agree with them.

Writing, as I am, about fifteen minutes from Monticello, it seems all too obvious to me that there are some ideals that are not discredited simply because their authors fail to live up to them.

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[Added at 12:30pm today]

Finally (now back in 2012), as I noted here, two years after the above posts (but still almost six years ago),

Thus in quoting King we honor the principle he stood for, whether or not he would have continued to stand by that principle in the future that he was denied.

But if you want to see a real case of reversing the meaning of one of the heroic, iconic events in civil rights history, you need look no further than how Michigan Gov. Jennifer Granholm and other opponents of colorblind equality in Michigan have stood the legacy of Rosa Parks on its head. (See, for example, the governor’s web site, here, and the event it links.)

Mrs. Parks was arrested for refusing to give up her seat on a Montgomery, Alabama, bus to a white passenger. (The Montgomery buses had a policy that required blacks to fill up the buses from the back to the front; whites from the front to the back; and blacks to give up their seats to whites when there were no more seats.) The principle that she, and the bus boycot that followed her arrest, demanded was, first come, first served, without regard to race.

In stark contrast, racial preferences in admissions and hiring and assigning school students to elementary and high schools based on their race stands on its head the principle that Mrs. Parks stood for when she refused to stand. Abandoning the “without regard” principle is wrong, whether the justification is compensation for past wrongs or “diversity.”

Moving from segregation farther back into our past, one of the most shameful compromises that went into framing the Constitution was the decision to count slaves (never mentioned, but called “other persons” in Article I, Section 2) as three-fifths of a person for apportionment purposes. That was shameful, but by abandoning racial equality for racial preferences liberals and the civil rights movement have abandoned a fundamental principle just as clearly as they would have if they had abandoned the principle of “One person, one vote” and demanded that each black person’s vote be counted as the equivalent of 1.3 white votes.

 

Say What?