Sunday, January 01, 2017

Impossible Path to Justice, Possible Path to Injustice

The late French philosopher Jacques Derrida referred to “justice” as a term we use for impossible things. It is a word that we use for things that we can’t ever seem to resolve, about the problems of the past and the present. When a wrong is committed, justice is the word we use for things done in the name of fixing the problems that emerge from that violence, from that harm. But there is no precise science to justice, no easy way to agree upon what is the appropriate means of making amends for something. Criminal justice systems, restorative justice, reparations, apologies, these are all ways that we try to channel the trauma of the past.

There is no equation for justice equivalence. Whatever happens in the name of justice will either be too much or too little. It cannot replace what was taken away, or those who have to give up something in the name of past wrongs will insist that they shouldn’t have to sacrifice for the sins of others. But the conversation and the process of dealing with that trauma is what is critical. Justice can take many forms and appear in unexpected ways, but most scholars agree that the opposite of justice, its greatest anathema is the idea that systems of inequality, exploitation or violence simply remain in the past and disappear just because certain people wish that they would.

When explicit forms of legalized violence against others are formally repealed, whether they be imperial, colonial, patriarchal or racial, they do not vanish, they persist sometimes in less obvious forms and sometimes more difficult to recognize forms. Take for instance the Black Lives Matter movement in the US.

In the past, a black life in the US could be taken with near impunity. To kill a black person represented an economic harm, damaging someone else’s property, and wasn’t a moral crime. Even when slavery was abolished in most areas of the US a white person could still discriminate against or physically harm black lives, with either no punishment or significantly less punishment than if they had harmed a white person. Vestiges of that history persist at the personal and systematic levels, to the point where a black man has a greater chance of being killed by a police officer, and said police officer(s) will be statistically be more likely to not be punished for the death. The All Lives Matter movement is a way of trying to prevent any type of justice from taking place by pretending that the violent past that marked certain bodies as being less valuable than others is long over.

Black Lives Matter does not preclude all lives having value. If anything it is a call to remember that all lives should matter, but the demons of America’s racist past create a present where basic statistical truths indicate that some lives matters less than others.

In Guam, we deal with our own problems of this sort, in particular what can be done about the island’s continuing colonial status. There are those who argue that things such as decolonization are unconstitutional, illegal or anti-American. According to international law however, the rights to decolonization and self-determination are clear. The native inhabitants of Guam have long been denied a fair shot at deciding their political destiny, and a decolonization plebiscite will represent an important symbolic moment in reversing hundreds of years of colonial disenfranchisement. 

On September 1st of this year I sat in the US District Court of Guam to hear arguments over the case of Arnold Dave v. the Government of Guam. For those unfamiliar with the case, it deals with issues of who should vote in a political status plebiscite to help determine what should be the next political status for the island. Proponents of current Government of Guam law on this matter argue that this is not a normal vote, but a symbolic and unique exercise in order to help restore the long denied right to self-determination of the Chamorro people, who are the indigenous people of Guam. Davis contends that if he isn’t allowed to vote in this decolonization plebiscite it is a violation of his constitutional rights. On that day, two attorneys, Christian Adams representing Davis and Julian Aguon representing the Government of Guam gave arguments before Justice Tydingco-Gatewood. Both brought with them a series of cases that formed the constellation of their argument, and just like the stars of our ancestors, they each represented maps that led the audience in different directions in terms of justice and what America represents.

Adams, formerly of the Department of Justice under George W. Bush has made a name for himself in conservative media circles for proclaiming that the greatest injustice in the United States today is discrimination against white Americans, such as his client. The grotesque constellation he proposed was designed specifically to lead the court away from things such as human rights, international law, decolonization and the Chamorro people themselves. He presented a misshapen twisting of American history, which on the one hand distorted various progressive social movements that have made the US more inclusive, but also denied pernicious forms of oppression that the US has been built upon and continues to maintain, such as militarism and colonialism in the Pacific.

Aguon, who first made his name as a Chamorro author and is now an award-winning human rights attorney in the Pacific proposed a different path for the court to take on the sea of legal possibility. He wove together quite powerfully, a series of decisions and legal philosophical points meant to show the obligation of the US to support the proposed, non-binding political status plebiscite.

The arguments in a way seemed prophetic given the outcome of the US presidential election. One argument was strongly built around notions of American exceptionalism and that the US does not and should not address the wrongs of its past in any substantive way. Trump’s rise to power is derived primarily from people just like Davis, who is a member of one of the most privileged groups in human history (a white male), who is whining vociferously that he is being discriminated against and non-white groups are taking away America’s greatness from him. Their argument was based on the idea that whenever America might be forced to confront the demons or its past or present, you can deflect any intervention by blaming those who wish to talk about them and call them racists who are dividing communities.

Aguon’s argument was not necessarily tied to Hillary Clinton, but was still rooted in the vision of America that animated most of her base. The notion that the US will be improved and advanced based on its tolerance and inclusivity, not the walls the it petulantly erects. This America and Aguon’s argument was rooted in the principle that past wrongs cannot be forgotten or repressed and that concrete, albeit sometimes symbolic steps must be taken in the name of restorative justice. Decolonization is not meant to turn back time or reverse the social order. It is meant to be a process of attending to those impacts of colonization, whether they be obvious or insidiously imperceptible.

Aguon countered Adam’s arguments about the plebiscite being unconstitutional quite effectively, but pushed the court further to take seriously the possibilities for justice in terms of addressing Guam’s history and whether justice might be the opening up or the closing off of opportunities for its future. Predictably, Davis’ attorney argued that justice in this instance meant denying the particularities of Guam’s history and present. It required denying the legitimacy of international law. He argued that justice best resembled the erasure of the Chamorro people and their rights to self-determination.

Aguon proposed a far different conception of justice, but in order to perceive it the court needed to recognize that the US does not exist above the world, apart from it and should never imagine itself to be the whole world.  In his argument, the US inherits not only a history that is just as much injustice as it is innovation or progress, but also the obligation and the ability to make right what time has proven was clearly wrong. A version of the US which reveres its founding principles and best ideals even to the point where it might enact them even if it might conflict with its own interests.

As of today, we are still waiting for the judge’s decision, and can only wonder (and hope) which version of the US her and justices beyond her would invoke in their decisions.

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