Almost two centuries ago, European (especially French) elites were fearful of the democratic experiment taking place in North America. So, they dispatched Alexis de Toqueville (and Gustave de Beaumont) for a report, under the pretext of examining the U.S. penal system. The result was de Toqueville’s two-volume paean to the principle of equality and the “great democratic revolution [that] is going on among us.”
This year, the United States hosted another visitor, Maina Kiai, the United Nation’s Special Rapporteur on the rights to freedom of peaceful assembly and of association. As Max Bearak [ht: ja] explains, Kiai’s trip “was spurred by growing concerns that despite a Constitution that guarantees broad inalienable rights, the world’s supposed beacon of freedom is often not living up to international standards of equality under law.”
At the end of his trip, Kiai also published his findings, which readers will see is a much more critical analysis of the current state of democracy in America.
Like de Toqueville, Kiai begins with some history:
The United States is an impressive, complex and imposing nation in which to undertake a mission such as this. It is an economic powerhouse, a military superpower, a global engine of technological development, and one of the oldest democracies in the world.
It is also an extremely diverse nation, a nation of indigenous peoples, slaves and immigrants. It is a nation of diverse opinions and views, sometimes so strongly held that it once slid into Civil War. And it is a nation of struggle and resilience, home of one of the 20th Century’s most inspiring moments encapsulated by the Civil Rights Movement.
The experiences with various forms of diversity and complexity have not always been smooth. The country was founded on land stolen from its indigenous Native Americans; its early economic strength was built on race-based slavery against people of African descent; and successive waves of immigrants have faced discrimination, harassment or worse.
Kiai then observes, “America seems to be at a moment where it is struggling to live up to its ideals on a number of important issues, the most critical being racial, social and economic inequality, which are often intertwined.” He is particularly concerned with an issue that de Toqueville himself thought was vital to the practice of American democracy: the freedom of association. “But it is impossible to discuss these rights,” Kiani notes, “without issues of racism pervading the discussions. Racism and the exclusion, persecution and marginalization that come with it, affect the enabling environment for the exercise of association and assembly rights.”
This issue is particularly grave in the African-American community, and understanding its context means looking back at 400 years of slavery. It also means looking at the emergence of the Jim Crow laws that destroyed the achievements of the Reconstruction Era, which emerged at the end of slavery in 1865, and enforced segregation and marginalized the African-American community to a life of misery, poverty and persecution.
It means looking at what happened after Jim Crow laws were dismantled, when old philosophies of exclusion and discrimination were reborn, cloaked in new and euphemistic terms. These may have not been race-based on their face, but they have, intentionally or not, disproportionately targeted African-Americans and other minorities.
The so-called “War on Drugs” is a perfect example. From it, one out of every 15 black men is in currently jail. One out of every 13 African-Americans, meanwhile, has lost their right to vote due to a felony conviction. An aggressive emphasis on street-level “law and order” (or “broken windows” approach) policing combined with wide police discretion means that African-Americans are subjected to systematic police harassment – and sometimes much worse – often for doing nothing more than walking down the street or gathering in a group. Convictions and incarcerations dramatically increased once the “War on Drugs” was set in motion, without a corresponding increase in drug use.
Similarly the crime laws passed under the Bill Clinton administration (1993-2001), including the federal “three strikes” law, implemented aggressively against people of color have contributed to the huge rises in incarceration and exclusion of the black community further fueling discontent and anger.
The effects can often snowball: A minor criminal offense – or even an arrest without substantiated charges – can show up on a background check, making it difficult to find a job, secure a student loan or find a place to live. This marginalization in turn makes it more likely that a person will turn to crime, for lack of any other option, and the vicious cycle continues.
These discriminatory laws and practices need to be seen in the larger context. Wall Street bankers looted billions of dollars through crooked schemes, devastating the finances of millions of Americans and saddling taxpayers with a massive bailout bill. Yet during my mission I did not hear any suggestions of a “War on Wall Street theft.” Instead, criminal justice resources go towards enforcing a different type of law and order, targeting primarily African-Americans and other minorities.
There is justifiable and palpable anger in the black community over these injustices. It needs to be expressed. This is the context that gave birth to the non-violent Black Lives Matter protest movement and the context in which it must be understood.
In discussions with activists, it is clear that “Black Lives Matter” does not mean that other lives—green, purple, blue, white or other color—do not matter. The Black Lives Matter movement is simply a reaffirmation that black lives do in fact matter, in the face of a structure that systematically devalues and destroys them, stretching back hundreds of years. It is not about granting African-Americans special status or privilege. It is about a historically and continuously targeted community seeking to elevate itself to the same level that everyone else enjoys.
But, he explains, “racial inequality is not the only inequality inhibiting the enabling environment for association and assembly rights.”
Although the United States engineered an admirable recovery following the financial crisis of 2007-08, this rising tide did not lift all boats. Productivity and economic output has grown, but the benefits of these have gone primarily to the wealthiest, as the wages of average people have stagnated. This has exacerbated the problem of inequality across all demographic groups, created more resentment, and more tension; providing more reasons for people to become politically engaged – including by exercising their assembly and association rights.
This inequality has been accelerated by declining union membership in a context of laws and practices which make it difficult for workers to organize, increasing corporate power, and a free market fundamentalist culture that actively discourages unionization. A dysfunctional, polarized Congress that has seemingly lost its tradition of compromise has made things worse.
In short, people have good reason to be angry and frustrated at the moment. And it is at times like these when robust promotion of assembly and association rights are needed most. These rights give people a peaceful avenue to speak out, engage in dialogue with their fellow citizens and authorities, air their grievances and hopefully settle them. They are also a key vehicle for public participation for marginalized groups whose ability to participate in democracy may be otherwise limited by dint of being felons or migrants.
Consider, then, the difference in perspective 185 years have created: The French aristocrat thought American democracy, whose only threat was a tyranny of the majority, promoted general equality among its citizens. Today, however, the U.N. official finds that growing inequality—racial, social, and economic—in America is undermining the practice of democracy, precisely when it is most required for the majority of its “angry and frustrated” citizens.