Why the Duke Case Matters

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The Seattle Public Schools recently decided to define "racism" in all its forms, including the denunciation of those who held to the importance of "future orientation" and "individual rights" (both under the "cultural racism" category). However, after being hit with a barrage of emails (including a couple from me, one of which said that according to their standards, having pensions for Seattle teachers was an act of "cultural racism," since it involved "future orientation"), the board took down the site and claims to be re-working it.

Seattle might be a long way from Durham, North Carolina, but the same disease seems to have hit both cities, and that is the denial of individual rights. I say this because in my previous articles which have strongly criticized Michael Nifong, the district attorney who is pushing these bogus rape charges, I receive a number of emails that say something to the effect that the accused lacrosse players are little more than "pampered jocks," or that the real issue is race and that there can be no functioning multi-racial society.

Whatever one wishes to make of those claims, I believe they miss the point entirely. The Duke case presents, in a microcosm, a clear picture of life in a future United States in which the Politically Correct world of the college campus becomes the legal standard for everyone. That is a world in which all events are viewed through an extremely abstract prism in which there are only "group" or "collective" rights, and where all individual rights are destroyed. Ultimately, it is the world of the Soviet Union and Josef Stalin’s "Show Trials" of the 1930s, in which we saw this whole thing in full flower.

What is happening in Durham is what would happen everywhere if the vision of the Seattle Public Schools becomes the basis of all law and social organization. It is not simply a story about a rogue prosecutor, although Nifong clearly fits that description. Some may argue — me, included — that we are well on our way and may have passed a "tipping point" in which it is all downhill to the abyss. That may be the case, although I also believe that it is my duty to fight against such barbarism while I still have the tools by which to fight. Maybe in this case I am standing up for "pampered jocks" (although the situation and the people involved are much more complex than to be described with a slur) who are part of a "hook-up" college scene that is little more than state-sponsored debauchery (given that even at places like Duke, government money pays much of the tuition). But when it comes to issues of law, I will stand up for the rights of people, even those people who are scorned by all the "respectable types."

The Duke case is an outrage on many fronts, but I argue here that the real battleground is abstract, but also very real, and that is where individual rights go against the zeitgeist of "collective rights" that are all the rage among our intellectual and political classes. The response of some black students at nearby North Carolina Central University put the whole thing into a very sad perspective:

Across town, at NCCU, the mostly black college where the alleged victim is enrolled, students seemed bitterly resigned to the players’ beating the rap. “This is a race issue,” said Candice Shaw, 20. “People at Duke have a lot of money on their side.” Chan Hall, 22, said, “It’s the same old story. Duke up, Central down.” Hall said he wanted to see the Duke students prosecuted “whether it happened or not. It would be justice for things that happened in the past.”

I doubt that Hall has heard of Nikolai Bukharin or even the Seattle Public Schools website, but his words clearly reflect support of the collectivist thought that permeated Bukharin’s work — and that ultimately led to his own execution by Stalin — and the nihilism that comes with it. In Hall’s world, there is no guilt or innocence apart from the collective. The Duke athletes are white; the accuser is black; black men wrongly were convicted of rape on false accusations during the Jim Crow era; therefore, the athletes are guilty. (Paul Craig Roberts has an excellent chapter on the nihilistic trial and execution of Bukharin in his book, The Tyranny of Good Intentions. Like so many intellectuals today, Bukharin derided individual rights as "bourgeoisie" nonsense, not knowing that he himself would be murdered by those simply following Bukharin’s instruction book.)

This seems to be the attitude of a number of people, including members of the black media, such as Cash Michaels of the Wilmington (North Carolina) Journal. Michaels has been unwavering in his support of Nifong and the prosecutions from the first day, and the blizzard of facts contradicting the prosecution’s tale has not deterred him at all from demanding charges and convictions:

…while everyone is focusing on the rape charge, critics forget Finnerty, Seligmann and Evans are also charged with forcible sexual offense — which can cover a wide range of actions against a victim’s will — and kidnapping.

If Nifong is able to prove just one of those first-degree felonies, at least one of those suspects may see the inside of a North Carolina prison for anywhere from 12 to 25 years.

Without wishing to depend on the overworked "if he were black" or "if he were white" responses, I cannot imagine that Michaels would overlook an alibi that Seligmann has given (which is backed up by electronic photographs and eyewitness testimony) if it were a black man in the dock. This tells me that influential blacks like Michaels are not interested in any other explanation, truth or otherwise.

Of course, this precisely is what happened to black males falsely accused during the Progressive Era, when the lynch law prevailed and all it took was an accusation from a white person to send a black to a horrible death at the end of a rope, or to be tortured to death in some other way by an angry mob. Whites justified these actions — which clearly eviscerated any trace of individual rights, rights of the accused, due process, and more — on collectivist grounds. No doubt, there were grievances that went back to the Reconstruction Era and before, or a thousand other grounds on which people believed they could justify their actions. Progressivists were the ones who truly established what was called "institutional racism," using their own views of evolution as the basis for their actions. Evidence did not matter, as it does not matter now in the Duke case, at least to some people who want convictions and life imprisonment for people they admit might not have committed any crimes.

Thus, if Chan Hall and Cash Michaels see this as simple "payback," then they are — grotesquely, to be sure — endorsing what was done to blacks in the 19th and 20th centuries. They are choosing to demand that individual rights be suspended in this case in favor of "collective rights," in this case, the "right" of American blacks to vengeance by falsely accusing whites and having them face some of the trials innocent black men faced during the Progressive Era and beyond. This is done, of course, in the name of "civil rights."

Nor is this attitude limited to these two men. It is the dominant way of thinking among faculty members (or at least arts and sciences faculty) at most U.S. colleges and universities. These academics long ago embraced collectivism not only in the economic sense (as long as it does not involve their own property), but also in the broader viewpoint of law and social action. Despite the dearth of evidence in the case, there remain True Believers among the feminists at Duke and, no doubt, at other institutions of higher learning as well.

Right now, most of us regard Political Correctness as something that is confined to the college campus, some government offices, and the mainstream media, as well as the mainline U.S. Protestant churches. Right now, the Duke athletes still are permitted to carry on a vigorous defense, although, as I pointed out recently, the Durham NAACP has tried to squash that right as well.

This is more than plain hypocrisy; it is "collective rights" at work. The legal theorist of the old "civil rights" movement long ago abandoned the pursuit of individual rights for the more politically promising "collective" or "group" rights. That is the driving force in feminist law, as well as the gay rights movement and, of course, "civil rights" law as well.

Keep in mind that "collective rights" cannot coexist with "individual rights." If the former prevails, it can be only at the expense of the latter. It is one or the other, and there can be no middle ground. Either Catherine MacKinnon or William Blackstone can prevail, but not both.

If Nifong is able to prevail in this case, given the evidence that has been made public so far (and I believe that the exculpatory evidence in favor of the three athletes is strong enough to stand on its own), then he will prevail only because the courts ignore individual rights.

Nifong wants to win his case, and his supporters want revenge for the wrongs committed against black men in an earlier era. None of these people are wearing white sheets and carrying torches and ropes, but, intellectually speaking, there really is no difference between the Duke case and the infamous Scottsboro Boys trials of the 1930s.

One would have hoped that the various "rights" movements of the 20th Century would not have led to a collectivist viewpoint that eviscerates individual rights, but that is what happened. Today, we are seeing this at work in the Duke case; if Nifong and his allies prevail, then there is nothing from stopping the courts from destroying the few rights individual have left. That is what ultimately is at stake here, period.

June 21, 2006

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute.

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