Change will not come if we wait for some other person or some other time. We are the ones we've been waiting for. We are the change that we seek. (1) INTRODUCTION
What the election of President Obama means for America is widely debated. Some argue that it illustrates that America is now a post-racial society and people of color should cease to discuss race and cease to point to racial prejudice as a cause for any suffering or structural inequities. (2) That position is misguided, at best, for even our President and his family have been subjected to racial insult. (3) Some suggest that as a result of his election racist hate crimes and hate groups are actually on the increase. (4)
Others argue that the election of a black president means nothing racially for the country, saying the vote reflected the economic recession, the Iraq War fears or the disillusionments with the former administration's policies, (5) and not racial progress. (6) The theory that Obama's election signals no racial change is also short-sighted. (7) As was suggested by the inauguration ceremony, (8) his election is the fruit of a civil rights movement fought valiantly by warriors, such as Fred Gray Sr. (9) who this symposium issue honors. It also signals unspoken alliances of common causes among blacks, (10) Latinos/as, (11) including those who are Roman Catholics, (12) white women, (13) and younger voters. (14)
So, looking back on the year since President Obama's historic election, this Symposium questions what will be the Obama Effect on America? Furthermore, what effect does this election suggest regarding the responsibilities for legal professionals specifically? Many participants at the Fred Gray Civil Rights Symposium thought it too early to measure the Obama Effect. I agree with them in part, and I disagree in part. I agree that the long-term effects are thus far immeasurable. However, my thesis is that the election of President Obama is already manifesting itself in the racial tension created in America since the historic election. The election creates a necessary racial tension in America that can lead to much progress. Thus, the long-term effect is in the hands of the people, especially legal professionals seeking positive racial change in America. Legal professionals can now use the racial tension from the Obama Effect to facilitate positive movement and progress towards a better society. As declared by Fred Gray Sr. "all legal professions [should be] guardians of justice." (15)
The purpose of this paper is to address how the Obama Effect of the 2008 Presidential election, coined by this author as the blackening of America, has created law-centered racial tensions in education, political involvement or patriotism, and religion. This paper also suggests resulting responsibilities for legal professionals who seek to confront this tension and socially engineer an American society with more justice, if not actual justice, for all.
Part I of this paper will address the historic role of racial tension. Part II will cover how the election has led to a blackening of America. Part III will discuss the Obama Effect and the resulting tensions from this blackening of America in education. Part IV will look at the Obama Effect in political involvement or patriotism. Finally, Part V will consider the Obama Effect on religion. Throughout each part of this paper I will also try to reflect on some possible responses by legal professionals to this racial tension.
HISTORICAL TENSIONS AND RESPONSES
Many years ago civil rights leader Reverend Dr. Martin Luther King Jr. said that for change to occur a visible tension must be created. (16) More specifically King stated:
[Tension] seeks to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent resister may sound rather shocking. But I must confess that I am not afraid of the word "tension." I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half-truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depth of prejudice and racism to the majestic heights of understanding and brotherhood. (17) As indicated in the quote above, King called for those who believe in justice to be nonviolent "gadflies." (18) Applied to America today, King's thesis is calling for those, including legal professionals, who seek justice to create a tension by annoyingly and irritatingly questioning a status quo of subjugation which has been built on a "bondage of myths and half-truths" and has emanated "from the dark depth of prejudice and racism." (19) Although King described the necessity of lawfully-created tensions during the civil rights movement, those tensions facilitated constructive racial advancement years before King's birth and before the birth of the sixties' civil rights movement.
Long before King's time, the seceding southern states unwittingly created a political tension that posed an opportunity not only for moral (20) tension, but also constructive change in the condition of those black people regarded as three fifths of a person for some white purposes, (21) and not a person or citizen at all for other white purposes. (22) President Abraham Lincoln kept this tension at the forefront in saving the Union. (23) In order to save the Union, Lincoln determined he would have to free the slaves, which he did. (24) Lincoln's action was not a result of a pronounced moral decision. Lincoln did not decide suddenly that racial injustice was unlawful or immoral. Rather, Lincoln succeeded in moral racial progress, i.e., freeing the slaves from a lawful condition of dehumanization, because of the tension in the Union created over other matters. As Lincoln stated:
I would save the union. I would save it the shortest way under the Constitution. The sooner the national authority can be restored; the nearer the Union will be "the Union as it was." If there be those who would not save the Union, unless they could at the same time save slavery, I do not agree with them. If there be those who would not save the Union unless they could at the same time destroy slavery, I do not agree with them. My paramount object in the struggle is to save the Union, and is not either to save or to destroy slavery.... What I do about slavery, and the colored race, I do because I believe it helps to save the Union.... (25) This is evidence that Lincoln's actions did not occur specifically for the humanity of the slaves, but because the slavery issue and other issues had posed a division, rather a tension, in the country operating as one nation. Although people celebrate Lincoln for taking the step to free the slaves, his own views reflect his inner racial tension. For example, he hoped that the freed slaves would leave America, as he thought it best for whites and blacks to be separated. (26)
Lincoln had hoped that by preserving the Union and freeing the slaves, "the nearer the Union will be 'the Union as it was.'" (27) In fact, however, the Union never was the same. Acting on the momentum of their freedom, immediately after the Emancipation Proclamation, black former slaves, and now citizens, voted and elected representatives as their participation as full citizens continually-increased. (28) This created a tension in the southern states despite many vocal whites in the south who sought to maintain the status quo of nonwhite racial subjugation, in contradiction of the 13th amendment. (29) So after the Emancipation Proclamation and the beginning of Reconstruction, the national government, representing the Union, faced a tension created by the desires of blacks to live free and peaceful lives as citizens juxtaposed against the desires of some whites who wanted to create, if not de jure, a de facto form of slavery continuing racial subjugation. (30) Rather than confronting this tension and fully utilizing this nation's power to forge principles of equality, the national government retreated and racial progress was stifled, if not outright smothered. Even the Supreme Court participated in smothering the extended freedom for blacks in order to smolder the building tension. In the Civil Rights Cases, (31) for example, the United States Supreme Court halted the progress of the bold Reconstruction Congress's action to eliminate racial discrimination in many public arenas. Additionally, the Court halted those operating with private ownership, such as lodging places and dining establishments. It ruled that this private racial discrimination was not a badge or incident of slavery. It said that it was time for the recently freed slaves to "cease to be the special favorites of the law." (32) Outlaw groups such as the Ku Klux Klan emerged and operated under the cloaked outright support, or complicit silence, of legal actors. (33)
In another example of governmental response intended to cover up the constructive racial progress and hide the tension brewing from the hopes of blacks for democratic representation, the state of Mississippi formed a state commission called the Sovereignty Commission. The commission, funded with taxpayer dollars, had a primary purpose of subjugating blacks and maintaining a segregated society. (34) It seems oddly unjust that black citizens in Mississippi, dutifully paying their state taxes, helped to support their own subjugation! (35) Mississippi did not officially disband this Commission until the 1970s, (36) long after the Brown v. Board of Education (37) decision in 1954.
Similarly, beginning in the 1940s, the civil rights movement created a tension to dismantle a Jim Crow system of...