Does America Need a Truth Commission?

Source: https://pursuit.unimelb.edu.au/. Used without permission.

The New Year offers a chance at restart for Americans and the world, along with the rollout of the coronavirus vaccines, and the impending inauguration of the avuncular president-elect Joe Biden. Besides that, though, it offers us all a chance to rest from collective trauma... rest from ten months (so far) of a deadly pandemic and the economic dislocation and social distancing it has wrought, rest from an unusually virulent election campaign whose overtime finally ends January 5 with the Georgia runoffs, and rest from a presidential term marked by relentless and aggressive public relations, alternative facts, erratic policy making, and outbursts of gratuitous cruelty and violence. 

One way that's been suggested to achieve national rest and reset is through a national Truth and Reconciliation Commission. A local version is underway in Iowa City, to address issues of racial justice. The nine-member commission was authorized by the City Council in June, appointed last month, and began their work before Christmas. They are charged with investigating discrimination, hosting a forum for stories of those impacted by racism, and facilitating conversations across racial lines. Commission member T'Shailyn Harrington told The Gazette: "Once you have these conversations, there's no way someone in good conscience can say instances of racial injustice don't happen in Iowa City. If there's evidence of something, there's no way you can say, 'That's fake news'" (Hermiston 2020; see also KCRG 2020). 

Priscilla B. Hayner in 2016
(Source: Independent Commission on Multilateralism. Used without permission.)

Priscilla B. Hayner, author of a major worldwide survey of truth commissions, suggests five defining features: 

A truth commission (1) is focused on past, rather than ongoing, events; (2) investigates a pattern of events that took place over a period of time; (3) engages directly and broadly with the affected population, gathering information on their experiences; (4) is a temporary body, with the aim of concluding with a final report; and (5) is officially authorized or empowered by the state under review. (Hayner 2010: 11-12)

She counted 40 truth commissions begun through 2009 (Hayner 2010: xi-xii). Hayner is a co-founder of the International Center for Transitional Justice, and has participated in quite a lot of them herself. She is, notably, more frank than sanguine in her reflections.

My interest in this topic comes from my own fatigue, as well as the strong impression that the common life that this blog celebrates has become badly torn. This interest preceded my awareness of public calls for an American truth commission, but come they have. The prolific author and former Labor Secretary Robert Reich called for one in a widely-circulated Tweet in October, promising 

It would erase Trump's lies, comfort those who have been harmed by his hatefulness, and name every official, politician, executive, and media mogul whose greed and cowardice enabled this catastrophe (quoted in Brown 2020). 

The same week, Elie Mystal presented a more detailed argument in The Nation: 

We need a form of truth and reconciliation commission precisely because our normal institutions have failed.... When a plane falls out of the sky, we don't just shrug our shoulders and say, 'Gravity has consequences.' We send in a team of experts to pick through the wreckage, figure out exactly what went wrong, hold people accountable, and make recommendations for future safety (Mystal 2020). 

Similar calls came from U.S. Senator Elizabeth Warren (D-Massachusetts) and MSNBC commentator Chris Hayes. More narrowly, Elaine Kamarck of the Brookings Institution has called for a commission to review "what went wrong" with the American government's handling of the coronavirus pandemic (Kamarck 2020).

Makeshift medical facility in North Carolina, March 2020
(North Carolina Health News. Used without permission.)

The idea is far from universally beloved. Hillbilly Elegy author J.D. Vance called the advocates "whiny," telling FOX News: 

Instead of... moving on with the life of American democratic politics, they want to go backward and punish everybody.... [R]eally what this is saying is you are going to be punished for trying to implement your ideals and principles into the work of government (Creitz 2020). 

More objectively, Harvard professor Jill Lepore argues that a commission focused on Trump would violate the American tradition of peaceful transfers of power dating back to the election of 1800. The Trump administration should be investigated by journalists, chronicled by historians and, in some cases, tried in ordinary courts. She does support proposals to use commissions to study the coronavirus response, racial injustice, and American Indian boarding schools. More broadly, 

what the nation needs, pretty urgently, is self-reflection, not only from Republicans but also from establishment Democrats and progressives and liberals and journalists and educators and activists and social media companies and, honestly, everyone (Lepore 2020).

Moreover, the record of past truth commissions is mixed. South Africa's famous post-apartheid truth commission allowed victims of violence to speak before the nation, but ignored broader impacts of the apartheid system. Commissions' capacity to accomplish nationwide reconciliation is vastly overstated (Zvogbo and Crawford 2020). Even the most successful commissions fall short of their ideal goals: A South African statement-taker told Hayner Perhaps sixty percent feel better, but those people are only healed sixty percent (Hayner 2010: 150). 

Jules Bakery in Marion is the latest metro business to close.
(Source: julesbakery.com. Used without permission.)

Maybe Lepore is right, and what we really should be doing is self-reflection. But like most Americans, I think on reflection that I'm pretty cool already. Maybe what America needs is not a Truth Commission so much as an Empathy Commission to guide us toward that self-reflection. This is definitely not to settle political scores; I'll let prosecutors and creditors deal with the President. However, we can have common life only if we are inclusive enough to know something of each other's stories, and can once again see difference as a variation of "us" rather than an alien "them." We need to not merely to affirm in words each other's humanity, we need it to feel it in our guts. Off the top of my head the commission should hear testimony from: 

• Central American refugees whose children were taken from them
• immigrants who contracted COVID in detention 
• state government officials and workers who dealt with a succession of instigated attacks while also managing elections, a recession, and the coronavirus
• people of color who have faced official or unofficial violence
• peaceful protestors who met with official violence
• police officers who have dealt with protests during a pandemic
• people who have suffered looting of their property
• people who have suffered violent crime
• health care workers on the front lines against COVID
• small business owners whose livelihoods have suffered during the pandemic
• school teachers and staff
• school age children
• parents of school age children
• people who've worked through the pandemic at meatpacking plants, grocery stores, and other "essential" but low-paying, low-security, and high-exposure jobs
• religious groups whose observances have been disrupted
• elderly and disabled people whose activities and contacts have been severely curtailed

Pitfalls immediately appear. It might well seem to be trivializing the historical pervasiveness of racial injustice by wedging it in besides all these more recent problems. We are ill-advisedly deviating from Hayter's five essential features, as (1) many of these situations are ongoing, (2) the list fails to focus on a pattern of events, and (3) it fails to focus on a single affected group of people. At the same time, the J.D. Vances of the world might see the Empathy Commission as another form of "whining," while the event itself could get entitled or political in a hurry. Maybe we'll wind up recycling some more unsubstantiated but highly colorful allegations of voter fraud. 

It's also not clear Americans all want to move on, or even have an inclusive common life. Well over 40 percent of Americans continue to support Trump's performance as President, and are not likely to want to move on from whatever he represents to them. A Pew Research Center survey this fall found 77-80 percent of both Trump and Biden voters saying about the other group, "Not only do we have different priorities when it comes to politics, but we fundamentally disagree about core American values." An even larger proportion of both camps, 89-90 percent, said election of the other candidate "would lead to lasting harm to the U.S." The severity of political conflict has grown increasingly divorced from the magnitude of policy disagreement, wrote a group of scholars in Science magazine this fall, featuring the tendency to adopt a moralized identification with one political group and against another--in other words, they are not just wrong they are "alien" and "iniquitous" (quoted in Edsall 2020).

Maybe my Empathy Commission could tone those feelings down a bit, but at this point how do we even get people to the table?

Redmond Park, Cedar Rapids, a public space with potential
in the Wellington Heights neighborhood

Though there are lots of reasons why it can be unpleasant (Cox 2020), we each of us need to learn how constructively to encounter difference. If that can happen, it will most likely happen at the local level, rather than via national television or social media. There's the Iowa City effort. There's Richmond, Virginia, where the National Trust for Historic Preservation is supporting an effort to transform Shockoe Bottom, once America's second-busiest slave market, into a "site of conscience"... part of the international network of such historic places that bring difficult history to light and spark public dialogue to address modern-day injustices (Nieweg 2019); first they had to undo a surface parking lot and block suburban-style development of a baseball stadium. Also in the Cavalier State, the legislature has legalized "jaywalking," a huge step in democratizing streets (Gordon 2020).

In a well-designed place, buttressing such conversations that a commission "authorized or empowered by the state" (Hayter again) are able to facilitate, people come together randomly, unintentionally, and frequently on the city's sidewalks. Good fences may make good neighbors, but we also need gaps in those fences where neighbors can meet in low-stakes encounters that build trust (Jenny 2020). Let's hear from Jane Jacobs again:

I do not mean to imply that a city's planning and design, or its types of streets and street life, can automatically overcome segregation and discrimination. Too many other kinds of effort are also required to right these injustices.

But I do mean to say that... tolerance, the room for great differences among neighbors--differences that often go far deeper than differences in color--which are possible and normal in intensely urban life, but which are so foreign to suburbs and pseudosuburbs, are possible and normal only when streets of great cities have built-in equipment allowing strangers to dwell in peace together on civilized but essentially dignified and reserved terms. ([1961] 1993: 94-95) 

New Bo City Market courtyard, a public space amidst drive-to urbanism,
but with easy access to core neighborhoods

Of the 2021 priorities for cities in Strong Towns's end-of-year survey, some focus on physical structures, some on financial arrangements, and only some directly on people, but all involve improving proximity. Joel Dixon (zoning), Talicia Richardson (regulation), Tamika Butler (equity), and Mike McGinn (combination of all three) in particular point out that good public space involves physical design, but also an inclusive approach to who is allowed to use that space, and how they are allowed to use it.

When it comes to encountering difference, we need the conversations that a commission can facilitate, but success requires a well-designed place. 

PRINT SOURCES: 

Lee Hermiston, "'Truth and Reconciliation Commission' Gets Started," Cedar Rapids Gazette, 20 Sunday 2020, 1C, 8C

Jane Jacobs, The Death and Life of Great American Cities (Modern Library, [1961] 1993)

The Spirit of Christmas Needs Urbanism!

Greene Square, Cedar Rapids

In Adam Hamilton's new book analyzing the meaning of Christmas for Christians, he spends a chapter on the Scriptural image of Jesus-as-light. The Gospel of John introduces Jesus with The true light, which enlightens everyone, was coming into the world (John 1:9, NRSV), and later Jesus describes himself, I am the light of the world. Whoever follows me will never walk in darkness but will have the light of life (John 8:12, NRSV).

What is this darkness, and this light? Hamilton identifies two sources of darkness: [1] moral darkness, external acts of selfishness or misguided zeal like terrorist attacks and child abuse; and [2] existential darkness, internal feelings of being lost or unloved (2020: 123-128). He goes on to describe the birth of Jesus as "God's response to both moral and existential darkness" (128), providing hope and trust in times of despair. But as the chapter continues, there is an interesting turn. As it turns out, 

We are God's plan for changing the world... for addressing injustice, for healing the wounds of injury and suffering. We are God's plan for including every person in this beloved community.... As we become children of the light, we cannot keep that light within ourselves. It is meant to spill out from us naturally and touch the lives of others. And every time it does, the light extends just a little farther, the darkness recedes bit by bit, the kingdom of God expands, and the world is changed. (140-141, emphases mine)

Hamilton illustrates this concept with the story of Kansas City's Secret Santa, who gives away $100,000 worth of $100 bills each Christmas season to people who need it (143-145). I'm ambivalent about this example, which is so striking it's easy for people to say, "Great, but I can't afford to give away $100,000 to strangers," and to dismiss it. A better example is the woman (p. 143) who helps low-income children both locally and in Africa, though again how many of us can afford to travel to Africa?

I take his main point, vividly illustrated by the collective passing of candlelight at Christmas Eve service, to be that each of us has the potential and the task to spread the light. "In our world," he warns, "you're either bringing darkness or light" (146). Without the option of sitting on the sidelines cheering on spectacular heroes like Secret Santa, we can spread the light steadily, which more often than not is going to mean incrementally. Smiles or friendly words are ways the light gets spread that are attainable for any of us.

Sometimes it can happen just by being there. In the early years of Brewed Awakenings Coffeehouse in Cedar Rapids, I invited myself to play guitar on the occasional afternoon, and when they didn't chase me away, I kept doing it. One day a woman came in and sat with her coffee by the fireplace near where I was singing. She stayed for awhile, and as she left she said, "Thank you for singing. I was feeling terrible when I came in, but your songs are funny and they made me feel better." I hadn't come there with that intention. If I'm honest with myself, my main motive was probably seeking attention. But I somehow became a vessel for the light to reach her existential darkness.

The lesson is in how many things had to come together for that to happen: There had to be a coffeehouse, or some kind of third place, for her to go for respite, that also occasionally welcomed goofy would-be songwriters. Its existence required an intrepid entrepreneur like Deb Witte, who started Brewed Awakenings, a city code that enabled it to open, and an older, low-rent building in a decent location to facilitate its takeoff. Even Secret Santa needs a place where he can efficiently encounter people to help. In suburban style development he could walk for a very long time before encountering anyone at all, whether or not they were in need of his help.

Light can get spread all kinds of ways, in all kinds of places. But if we want it to happen a lot, and Hamilton says God does so we do too, then we need the kind of places where people encounter other people on a frequent basis. In other words, we need walkable urbanism, with its short blocks, safe and interesting walks, mix of uses, and human-scaled buildings close to each other. 

In her chapter entitled "The Uses of Sidewalks: Contact," Jane Jacobs demonstrated how city design done right facilitates a series of informal, low-stakes encounters that grew social trust, community identity, personal safety, and organizing capacity:

The sum of such casual public contact at a local level--most of it fortuitous, most of it associated with errands, all of it metered by the person concerned and not thrust upon him by anyone--is a feeling for the public identity of people, a web of public respect and trust, and a resource in time of personal or neighborhood need. ([1961] 1993: 73, emphasis mine)

 City design done wrong kills those capacities:

The more common outcome in cities, where people are faced with the choice of sharing much or nothing, is nothing. In city areas that lack a natural and casual public life, it is common for residents to isolate themselves from each other to a fantastic degree. (85)

Do you want to spread the light? Have you resolved, with the woke version of Ebenezer Scrooge, to "honour Christmas in my heart, and try to keep it all the year?" Either we make progress towards walkable urbanism, or else we fail and the world gets darker.

SOURCES

Adam Hamilton, Incarnation: Rediscovering the Significance of Christmas (Abingdon, 2020)

Jane Jacobs, The Death and Life of Great American Cities (Modern Library, [1961] 1993)

SEE ALSO: 

Robert Steuteville, "My Christmas Wish: A Return to Street Grids," Public Square: A CNU Journal, 22 December 2020

David Vera-Barachowitz, Mike Flynn, and Lian Farhi, "The Post-Pandemic Street," Planetizen, 22 December 2020

Religious freedom for whom?

The Bill of Rights in the U.S. Constitution begins with religious freedom: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof... (Of course, the primacy of these phrases is due to the first two amendments proposed by Congress failing of ratification in the state legislatures, so what was to have been the third amendment got elevated to first. I'm trying to execute a rhetorical flourish here, so please keep your historical accuracy to yourself.)

(And yes, I do occasionally contemplate groups of angry white men proclaiming their 4th Amendment right to brandish automatic weapons, as well as nervous white-collar defendants pleading the 7th.)

We get very little help, alas, from the members of 1st Congress, in elaborating the meaning of those religious freedom phrases, including words like "exercise" and even "religion" (Witte and Nichols 2016: 81-95). For much of the U.S. history, the Supreme Court has wrestled with articulating a standard for deciding cases when religious people, however defined, claimed exemption from laws. In Reynolds v. U.S. (1878), dealing with the Mormon practice of polygamy, Chief Justice Morrison Waite argued that religious people were never entitled to exemptions from otherwise-constitutional laws: To permit this would be... in effect to permit every citizen to become a law unto himself. Maybe, but by the 1940s, when the religious freedom clauses began to be applied to state laws, Waite's non-standard was widely thought to be inadequate. In the 1963 case of Sherbert v. Verner, dealing with a Seventh Day Adventist denied unemployment compensation benefits for refusing to work on Saturday, the Court required a religious exemption because the state (South Carolina) had failed to demonstrate a "compelling state interest." Even when the government demonstrated such an interest, they would also need to prove that denying religious exemptions was the "least restrictive means" possible to attain that interest.

In 1990, a new Justice Antonin Scalia wrote a decision moving the standard back towards Reynolds. In deciding against members of the Native American Church whose ceremonial use of the drug peyote ran afoul of Oregon narcotics laws, Scalia wrote: We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. At another place he used the phrase a neutral, generally applicable regulatory law, which led to this standard being dubbed "general applicability." Even the general applicability standard, though, was not enough to save a Hialeah, Florida ordinance prohibiting animal sacrifices, which the Court found had been specifically aimed at thwarting the Santerian Church of Lukumi Babalu Aye.

The Supreme Court building in 2018

The general applicability standard has not worn well (Volokh 2015).  It was never overruled by constitutional amendment, but a bipartisan effort in Congress restored the compelling state interest for federal law in the Religious Freedom Restoration Act of 1993. Ironically, social conservatives who revere Scalia have proven the most restive; their efforts described by Goldford (2012) to include orthodox forms of Christianity in the original meaning of the Constitution have shifted in these changing times to... claiming religious exemptions from generally applicable laws. In 2015, the Court found 5-4 in Hobby Lobby v. Burwell that the religious owners of the Hobby Lobby Corporation were burdened by the contraceptive coverage requirement in the Affordable Care Act. The Obama administration's arguments for a compelling state interest in providing access to health care were rejected, as well as their proposals for any alternative means to achieve it. (See the companion case of Wheaton College v. Burwell, also a 5-4 decision, finding a religious college was burdened by filing a form to get exempted from the contraceptive provision.)

Most recently, there are last month's 5-4 decisions in Roman Catholic Diocese of Brooklyn v. Cuomo and Agudath Israel v. Cuomo, which found the State of New York's pandemic restrictions on public gatherings improperly applied to attendance at religious services. (See Dawid 2020, Barnes 2020.) Another decision is expected soon on a similar case from California (cf. Liptak 2020). 

Part of the problem with the pandemic cases has been the level of nuance in state restrictions. They can read like Euclidean zoning codes, making hair-splitting distinctions that leave them vulnerable to attack on grounds of favoritism. The Diocese of Brooklyn complained in their petition to the Court they were subject to onerous fixed-capacity caps while [the state was] permitting a host of secular businesses to remain open in "red" and "orange" zones without any restrictions whatsoever.... The result is that Target and Staples can host hundreds of shoppers at a time, and brokers can spend 40 hours per week working and hosting customers in poorly ventilated office buildings, but Catholics cannot attend a 45-minute Mass. When Governor Andrew Cuomo defended the measures because some Catholic and Jewish services had become super-spreader events, the plaintiff organization Agudath Israel said he had drawn targets on a map over neighborhoods of a discrete religious minority (all quotes from Barnes 2020; see also Liptak 2020). 

(The New York orders' alleged discrimination against religious exercise was disputed. Justice Sonia Sotomayor, in her dispute in Diocese of Brooklyn, argued New York treats houses of worship far more favorably than their secular comparators, noting that the orders closed movie theaters, concert venues, and sports arenas, while houses of worship only had to limit attendance. Surely the Diocese cannot demand laxer restrictions by pointing out that it is already being treated better than comparable secular institutions.)

COVID Cases by county, New York and environs
(Source: Johns Hopkins University of Medicine. Used without permission.)

Unlike Hobby Lobby and Wheaton College (Sullivan 2014), the pandemic cases don't involve arguably unresolvable issues of whether the plaintiffs are exercising religion; they unquestionably are. The issue in Diocese of Brooklyn and Agudath Israel is whether there is a compelling state interest. The unsigned majority opinion doesn't reject outright the presence of public health considerations during a pandemic that has officially killed 300,000 Americans and likely has killed 100,000 more. It is also true that America has fared far worse during the pandemic than other industrialized countries, largely because we've been unwilling to impose more stringent restrictions. (The chart at the bottom of the post compares coronavirus death rates among advanced industrial democracies. The United States, an outlier in terms of religious devotion, is not the poorest-performing of the group when it comes to keeping its citizens alive, but many of our less religious peers have done much better.) And some individuals, like health care workers and those with disabilities, are particularly at risk when the contagion is not controlled (Mogul 2020, Wilder 2020).

Yet, the decision argues, The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the first amendment's guarantee of religious liberty. If controlling a deadly pandemic is not a "compelling state interest," what state interest could possibly qualify? Does the First Amendment now require religious exemptions to all laws? I'm proud to be an American, where at most I know I'm free? 

Just like state governments struggling to rationalize pandemic restrictions, the Supreme Court needs for its own and everyone else's sake to avoid appearing arbitrary and capricious in articulating standards for its decisions. With certain notable exceptions, including the Santeria case, the free exercise clause has been interpreted in whatever way favors traditional majority culture: yes to conservative groups wanting exemptions from public health regulations, yes to evangelical business owners who don't want to insure their employees if they have to include contraception, yes to evangelical bakers who don't want to make wedding cakes for gays, no to Native American peyote users or cemetery owners, no to Mormons (at least in the 19th century). Libertarianism for me, authoritarianism for you?

Traditional majority culture has found a home in the Republican Party, as witness overwhelming white evangelical support for Republican candidates from Reagan to Trump (Gjelten 2020); meanwhile it responds to demographic and cultural change by going into a defensive crouch. "It pains me to say this," Justice Samuel Alito told the Federalist Society, "but in certain quarters, religious liberty is fast becoming a disfavored right" (Barnes 2020). Disfavored by whom? That sounds too much like President Trump trying to rediscover the War on Christmas. Five of the six Republican appointees to the Court made up the majority in these decisions. Whose favoritism matters?

In a 2014 blog post, Prof. Winnifred Fallers Sullivan of Indiana University highlights the riskiness of all free exercise jurisprudence:

The need to delimit what counts as protected religion is a need that is, of course, inherent in any legal regime that purports to protect all sincere religious persons, while insisting on the legal system's right to deny that protection to those it deems uncivilized, or insufficiently liberal, whether they be polygamist Mormons, Native American peyote users, or conservative Christians with a gendered theology and politics. Such distinctions cannot be made on any principled basis. (Sullivan 2014)

Protection versus denial is a binary choice, and like most binary choices it is a false one. We can and should agree to protect the religious liberty of all, but take into account the social costs of exercise. Native American Church members should not be driving cars while impaired by peyote, and in fact the controlled nature of their ceremonies prevents that. Religious exercise that prevents non-participants from accessing health care is a different matter, though we could address the flaws in the health care system that give rise to the question in the first place. Religious exercise that puts non-participants at significantly higher risk of contracting a deadly disease should not be arguable... unless we're claiming that protection of religious liberty can never be limited. 

Without a "principled basis" for deciding free exercise cases, and consistent application of those principles, what are we left with but the exercise of power by one group over another? "Religious freedom" is a rather lofty phrase for that.

Thanks to my colleague Dr. Meira Kensky for pointing me towards the piece by Sullivan, and other helpful suggestions.

SEE ALSO: "Rights and Our Common Life," 26 August 2015

PRINT SOURCES

Dennis J. Goldford, The Constitution of Religious Freedom: God, Politics, and the First Amendment (Waco: Baylor University Press, 2012).

John Witte Jr. and Joel A. Nichols, Religion and the American Constitutional Experiment (New York: Oxford University Press, 4th ed, 2016)

DATA

COUNTRY          COVID DEATHS       PER 100,000        % REL V IMP

Belgium                      18,054                        158                    11

Italy                             65,011                        108                    21

Spain                           48,103                        103                    22

United Kingdom         64,402                          97                    10

United States             301,006                          91                    53

France                          57,911                          86                    11

Sweden                          7,514                          74                    10

Switzerland                    5,692                          67                      9

Netherlands                  10,168                          59                    20

Portugal                          5,649                          55                    36

Austria                            4,648                          53                    12

Ireland                             2,126                          44                    22

Canada                          13,553                          37                     27

Germany                        22,475                          27                    10

Denmark                             950                          16                       9

Finland                               466                             8                     10

Norway                               393                             7                    19

Australia                             908                             4                     18

Japan                                2,649                             2                     10

South Korea                        600                             1                     16

SOURCES: New York Times interactive “Coronavirus World Map: Tracking the Global Outbreak,” 12/15/2020; Pew Center for Religion and Public Life, “The Age Gap in Religion around the World,” 6/13/2018