book review forward -Reply

[Stephen M. Feldman]

Professor Jamar writes that "minorities tend to be quiet and go along with
indignities rather than causing a fuss."  I agree.  But I strongly disagree
with his conclusion that it is not "really especially meaningful."  I fully
understand how and why members of outgroups often just "go along" and avoid
confronting "indignities."  In fact, I usually fall into that position
(though, based on the title of my book, some of you might not believe this).
Nonetheless, this type of silence helps bolster the dominant cultural
narratives or prejudices that lead to such indignities.  The meaningful of
outgroup silence was evident in Lynch v. Donnelly.  In chapter 10, I wrote:
"Members of the subcultural [out]group go unheard (and sometimes unseen) by
members of the dominant cultural and other subcultural groups.  Indeed, in
the face of cultural imperialism, outgroup members sometimes figuratively
(and sometimes literally) stop speaking, so that there is nothing to be
heard.  In Lynch, for example, the Court supported its conclusion by noting
that, prior to that lawsuit, nobody had complained about the cr che even
though it had been publicly displayed for forty years.  To the Court, this
silence meant that the cr che had not generated dissension--apparently,
everybody happily supported the Christmas display.  The Court overlooked the
possibility, however, that Christian cultural imperialism had produced the
silence of religious outgroup members.  Silence can bespeak domination, not
consensus" (at 264-65).

Stephen M. Feldman

>Echoing Michael McConnell's point - non-Christians win cases all the time
>under Title VII and similar state laws, so I'm not really sure that the
>point about who wins and who doesn't under the free exercise clause is
>really looking broadly enough.  I suspect that until recently relatively
>few cases of by any group were brought under the free exercise clause, and
>if they were, I would think most would have been settled.
>
>Also, minorities tend to be quiet and go along with indignities rather than
>causing a fuss.  So do majority members for that matter.  So I don't think
>this is really especially meaningful - though it is worth noting in the
>"for what it's worth" category or as something that could lead to
>uncovering a real problem if examined more broadly.
>
>I put it in the category with my "Native American's always lose" theory of
>Constitutional jurisprudence - it sure seems that way, and maybe there is
>something about the Native American history and culture and the nature of
>the claims made that simply are not well accommodated by the Anglo-American
>individual -rights based legal edifice we have constructed.  But those
>speculations and observations are just that - speculations and observations
>and ought not be pushed too far.  Sort of like the idea that 11% of the
>population is displacing 85% of the population from the job force - taking
>their jobs.  One or two or a dozen examples of individuals feeling
>displaced does not seem to carry much force in the face of the wage
>disparty and in the vast difference in overall unemployment rates between
>blacks and whites in the U.S.  But, as Reagan and Clinton understood, the
>personal narrative is much more compelling than broad statistics.  And so
>it is with this little bit of data.
>
>A final comment - I also think that there is quite a marked difference in a
>nuanced observation in a scholarly journal and a dynamite charge in a book
>or article targeted more broadly to an audience less aware of the
>statistical problems and real state of affairs.
>
>Cheers,
>Steve Jamar
>
>Steven D. Jamar
>Professor of Law
>Director LRW Program
>Howard University School of Law
>2900 Van Ness Street NW
>Washington, DC  20008
>
>vox:  202-806-8017   fax:  202-806-8428
>email:  sjamar at law.howard.edu
>
>The more you know, the more you know you don't know.
>