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Annual Meeting Review: 101 Years of the 19th Amendment

By: Chris Fortier

It has been only 101 years since the 19th amendment was passed by Congress on June 4, 1919, and ratified on August 18, 1920 granting women the right to vote.  One COVID year after the 100th anniversary of its passage, a panel convened to discuss where we are. Attorney General Mark Herring joined the program along with Professor Vivian Hamilton-Watts of William and Mary Law School.  This discussion and celebration, even if delayed by a year, is still relevant to our current events. The work continues for women’s rights and voting rights as the panel pointed out, as there are still areas where we have yet to achieve equality.

Suffrage for Women

Examining the history of women’s suffrage shows that while women gained the right to vote, those rights were still subject to previously enacted race and class limitations. When going over the history of the 19th amendment, Professor Hamilton-Watts noted some shortcomings in the suffrage movement. 

Women’s suffrage shows that while it opened up rights for women to vote, those rights were still subject to race and class limitations previously enacted by Congress and the states. Professor Hamilton-Watts noted that the leaders of the movement in the 1800s did not support or recognize the ramifications of the 15th amendment. However, suffragists went for a strategy of expediency, specifically going for white women’s enfranchisement, and had to get support of southern states.  As a result, African American women continued to deal with poll taxes and literacy tests.  Asian Americans and Native Americans were not able to enjoy suffrage as various laws prevented their vote until the 1950s. Officially, the Civil Rights Act of 1965 achieved universal suffrage for all races.

Professor Hamilton-Watts noted that women are going to higher office but far fewer women hold elected office today, as 27 percent of Congress and 29 percent of state legislatures are women. Ten million more women than men participated in the 2016 and 2020 elections. However, Latina women still lag in participation.  57 percent reported struggling to manage work and family compared to 37 percent of women overall.

The Civil Rights Act created the Preclearence rule, where states and localities with a history of voting discrimination had to clear their rule change with the Civil Rights Division of the Department of Justice.  However, this rule was overturned in Shelby County v. Holder. As a result of Shelby County, states are ramping up voting restrictions.  Voting restrictions hit marginal communities disproportionately harder. Currently, states previously subject to preclearance are now passing voter suppression laws. 

Attorney General (AG) Herring noted that the Virginia Voting Rights Act passed this year created 45 days of no excuse absentee voting, removed the mandatory photo ID requirement, makes election day a state holiday, prohibits intimidation or racial discrimination from voting. If a locality wants to move precincts or change the location of the registrar’s office, it has to get permission (preclearance) from the Attorney General’s Office. Voter information was made in languages other than English. The Virginia Act also created a voter outreach and education fund.

AG Herring noted that while wording of law limiting voter participation is gender neutral, the effects of time limitations are on lead parents, primarily women. Professor Hamilton-Watts notes that limits have a disproportionate effect on women and women of color as they have less flexible hours in positions such as caregivers. 

Equal Rights Amendment (ERA)

Virginia was the 38th state to ratify the ERA in January 2020. The Constitution provides for equal protection because of the 14th amendment. While race generates strict scrutiny, sex only has intermediate scrutiny, meaning the law must be  substantially related to important government protection.  The ERA bumps up sex to strict scrutiny. Congress does not have wide-reaching jurisdiction over gender-based restriction, only limited jurisdiction.

When it came to what is missing, the ERA would give better gender-based protections with employment and gender-based violence for example, allowing for broad power to enact gender protections with the Constitutional basis. Castlelaw v. Gonzales outcome might be different as ERA would have required examination of law enforcement action for discrimination. The expressive effect of law is important as women are currently perceived as less than equal. For example, harassment or assault would be counteracted by an ERA.

AG Herring noted that every constitutional requirement has been fulfilled. When asked if there is a time limit to ratify, Herring stated that he believed there was none. He pointed out that there is no time limit to ratify amendments set out in the Constitution. As precedent, he pointed to the 27th amendment, that Virginia ratified in the 1700s but was not an amendment to the Constitution until 1992.  Congress could also remove the time limit with a bill pending to remove that time limit set in 1972. In any case, there is still work to do to make the ERA law.

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Chris Fortier is an attorney at the Social Security Administration and the multimedia editor for Invictus. He serves on the Board of Governors for the Diversity Conference. The views represented in this article do not represent those of the Social Security Administration or the Federal Government.

Juneteenth and the Official End of Slavery in the United States

By Alicia Roberts Johnson 

Many people believe or history books may tell you that slavery for African-Americans in the United States ended on January 1, 1863 when President Abraham Lincoln issued the Emancipation Proclamation which declared that all persons held as slaves within the rebellious states shall be free.  Unfortunately, while January 1, 1863 marked the end of slavery for some African-Americans in the United States, it did not mark the end of slavery for those in Texas.  Continued to be held in bondage, it was some two years later on June 19, 1865, when Major General Gordon Granger brought the good news to Galveston, Texas that the war had ended and all those in bondage were now free.  Prior to Major General Granger’s arrival in Texas, there were not enough Union soldiers in Texas to enforce the proclamation.  Upon his arrival Major General Granger would issue the following executive order to the people of Texas:

“The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, all slaves are free.  This involves an absolute equality of personal rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and hired labor.  The freedmen are advised to remain quietly at their present homes and work for wages.  They are informed that they will not be allowed to collect at military posts and that they will not be supported in idleness either there or elsewhere.”  General Orders, Number 3, Headquarters District of Texas, Galveston, June 19, 1865.

It was out of this executive order that the holiday of Juneteenth would be born and recognized as the oldest nationally celebrated commemoration of the end of slavery in the United States.  To date, 47 states and the District of Columbia recognize Juneteenth as a state holiday or ceremonial holiday and many businesses such as Target, Nike, and the National Football League have declared Juneteenth a holiday for their employees.  While Juneteenth has been celebrated by many African-Americans for well over a century now, it has recently gained increased national recognition with the development of more robust exhibits at national museums such as the Smithsonian’s National Museum of African American History and Culture, as well as through national television broadcasts.  The Commonwealth of Virginia would join in the celebration of Juneteenth on June 16, 2020, when Virginia Governor Ralph Northam issued Executive Order 66, declaring his intent to make Juneteenth a permanent state holiday.  This legislation was subsequently passed by the Virginia General Assembly in the fall of 2020 after lawmakers unanimously voted in favor of this historic legislation.  

Many communities and organizations across our nation have celebrations to commemorate Juneteenth to promote and cultivate awareness of African-American history and culture.  I encourage you to avoid using Juneteenth as just another day off, but rather use Juneteenth as a time to learn more about African-American history and the many contributions African-Americans have made and continue to make to our society.

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Alicia Roberts Johnson serves as the Chair-Elect on the Board of Governors of the Diversity Conference.

Editor’s Note: One day before this presentation, Juneteenth became a federal holiday with its first observance on June 18, 2021.

 

Editor’s Corner: FREEDOM, DIVERSITY, TOTALITARIANISM AND THE LAW

                                                              By: August Bequai, Esq.*      

I declare, that having received from the people the mandate to defend  its rights,  I regard an oppressor him who interrupts me.”                  

-Maximilien Robespierre

From its recorded inception, civilization has rested on three classes for its functioning: priests, warriors, and lawyers. Their roles and functions have varied from civilization to civilization; frequently interchanging. In Ancient Egypt and Mesopotamia, the priestly class often assumed at least two of these roles; this was not the case in Ancient Rome, Greece, India, or China.

Equally, throughout history, the forces of freedom and diversity have found themselves pitted off against the forces of autocracy; the latter favoring an absolutist mindset. With the pendulum swinging back and forth; often finding lawyers at the helm of the former. By the late 18th century, autocracy came to assume a secular absolutist mindset in the West; referred to as totalitarianism by such scholars as J.L. Talmon. Fast gaining adherents globally in the 20th century, i.e., Communism, Fascism, and extreme nationalism to the detriment of freedom and diversity.

Onset of the Totalitarian Mindset

Autocracy and dictatorships are no strangers to human history. They are found in every part of the world; there are ample examples of these throughout history. No society has been spared the pain. However, a new autocratic mindset emerged in the late 18th century; referred to now as totalitarianism. In part, the outgrowth of the writings of Hobbes, Helvetius, Voltaire, Rousseau, and other Western thinkers; further propelled by the rise of the Industrial Revolution. Further cemented in the late 19th century by the rise of Marxism, agrarian socialism, and various extreme nationalist movements.

These combined forces played no small part in unleashing the French Revolution (May 1789 to November 1799); which came to have a profound impact on world history beyond Europe. While espousing freedom and diversity, the French Revolution gave rise to a secular absolutist (totalitarian) mindset that came to view the common good as paramount to the rights of the individual. It propagated the view that rule by an enlightened elite was best for the common good; those who espoused freedom and diversity, were traitors to the common good. Such views had historically been confined to religious extreme movements.

No one personified this absolutist mindset during the French Revolution more than Maximilien Robespierre, a lawyer by training turned revolutionary. For him, the Parliamentary system of government was a fraud; a plot against the common good. Lawyers were a tool of a corrupt  elite to suppress the majority. Any legal system that espoused freedom and diversity, was to be crushed. Stalin, Mussolini, and Hitler would take Robespierre at his word.

Robespierre was not alone in his thinking. Other French revolutionaries, like Louis Antoine de Saint-Just (a former law student), shared his views. For them freedom and diversity were “the art of human pride.” Political opponents were no more than vermin: enemies of the common good to be destroyed. For Robespierre and Saint-Just, the general will was one and indivisible; freedom and diversity would only serve to undermine it.

The True Believers

Unlike past dogmas that centered around religious movements, the French Revolution promised a secular heaven on earth. The rulers of this new compact would come from the ranks of a select enlightened elite. Lawyers were shunned as impediments to revolutionary change. The French Revolution would become a model for such groups as the Left SR, Bolsheviks, Fascists, and other secular dogmatists that followed.

The idea of a (secular) supreme leader also took hold under the French Revolution. Endowed with godly wisdom, he/she would enshrine the common good, free of legal restraints. A secular papacy, leading the masses. Stalin, Mussolini, Hitler, and Mao Zedong would master that role. The law and lawyers would play no real role in this totalitarian society; they were to be used as needed.

The Lawyers 

Freedom and diversity have been part of humanity since the dawn of history. The Ancient Greeks incorporated these precepts in their legal system. They were included in the Magna Carta (1215), English Bill of Rights (1689), Virginia’s Declaration of Rights (1776), U.S. Constitution (1789), and United Nations Universal Declaration of Human Rights (1948). They are the pillars of modern democracy.

Likewise, lawyers are the guarantors of the law. Freedom and diversity would be merely talking points if lawyers failed in their duties. The absolutist mindset, if espoused by lawyers, can prove to be the nemesis of freedom and diversity. To quote Frank J. Cobb’s, “The Bill of Rights/…is the…guarantee of human freedom.” Absolutism its nemesis.

*Gus Bequai, Esq. is the editor in chief of Invictus. The views expressed are solely those of the Editor. They do not reflect the views of the Virginia State Bar or the Diversity Conference.

अग्नि Agni: The Power of Fire

By: Susan Borecki

Many years ago I took a sabbatical from my legal practice and enrolled as a student at the Ayurvedic Institute.  Ayurveda is the science of life based on the ancient Vedas.  Yoga is the most well-known Vedic discipline in the West.  Another discipline that is becoming more widely known is Ayurveda, the “Mother of all Healing.”  Health and healing according to Ayurveda begin with Agni. 

Agni is Sanskrit for fire.  Agni is hot, light, sharp, and dry.  Agni governs innumerable physiological processes including digestion and the assimilation of food at the cellular and more subtle levels.  

Digestion is key to health and wellness according to Ayurveda.  Foods are digested differently so one needs to know which foods are compatible with one another.  For example, poultry (including eggs), should not be eaten with dairy (such as milk and cheese).  Similarly, dairy should be eaten separately from fruits.  Fruits should be eaten alone, and not served on top of cereal or baked into bread or muffins.  Grains, including wheat and rice, combine well with beans, vegetables, meat, nuts, eggs and cheese.

If one’s agni is strong, the rules can be followed less stringently.  If one’s agni is poor, incompatible food combining can result in incomplete digestion.  The body is not always easily able to eliminate undigested food.  Accumulated over time, undigested food becomes a toxin called Ama.  

Ama is cold, dull, wet, heavy and viscous.  Ama can result in indigestion, fatigue and cloudy thinking.  Ama accumulation can be seen on the tongue.  A clear tongue, free of a white or brown coating, can be an indication of good agni.  A coated tongue may be a sign of ama in the body.  Ama can collect into the deep tissues and, if not addressed, can result in weight gain, dullness and ill health.

According to Ayurveda, food will absorb the ambient energies.  You can improve the quality of your digestion, therefore, by being mindful of your thoughts as you cook and eat.  Be fully present and emotionally grounded while handling food.  

Don’t argue or entertain disagreeable thoughts while cooking and eating.  And never criticize your food.  Your food fuels your activities, your thoughts and your feelings.  It also is incorporated into your tissues including the mind.  If you don’t like a particular dish, then finish it quietly or put it aside.  

You can improve your digestive fire by consuming simple, fresh and tasty meals.  Think positive, good thoughts while you cook and eat your meals.  Put off unpleasant topics for another time.  

Kindle your agni with Agni Tea:

1 quart water 
1 pinch cayenne 
2 handfuls minced fresh ginger root 
2 Tbs. cane sugar or other sweetener 
1 to 2 tsp. rock or sea salt

½ a lime, squeezed

Put the first 5 ingredients in a pot and boil for 20 minutes.  Add the lime juice and enjoy.

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This article is for entertainment purposes only and is not to be used to diagnose or treat illness.  

The Power of Breath

By: Susan Borecki, Esq.* 

“Wisdom is not acquired save as the result of investigation.” – Sankara Charya

Where did that button go?  That bright red button that opens up the hole in the courtroom floor.  It was right here a minute ago, wasn’t it?  It was under a folder, maybe.

I practice criminal law in Washington, DC.  My job is representing the accused.  I do my best to challenge the prosecutor, her witnesses, her theory, and her evidence.  If I am lucky, I also have witnesses, a theory and evidence to present.  But I am not normally so lucky.  

I attended a CLE in the early 90s called, “Only the Strong Survive.”  One of the presenters discussed the Red Button.  It was somewhere on the defense table, but was mostly elusive.  Usually, the best one could hope for is the court reporter to ask for a break.  

The presenter of this class gave a lot of pointers on preparing to defend the indefensible, how to bolster your client’s and your own confidence.  One tip I remember was labeling your trial binder with the client’s name emblazoned in large bold letters on the cover and spine.  Things you could do ahead of time so maybe you had a lot of distractions that you wouldn’t think about the red button.

But a CLE is not usually the place to look for solutions to mental or professional crises.  We have to find those elsewhere.  I did.  Let me share it with you here.

Meditation is the quieting of the endless chatter in the mind.  It is the attention to the breath that helps move one’s consciousness away from the mundane details that keep us busy and distracted.  

It’s a few moments of discipline leading to peace.  Over time, with practice, meditation stills the mind.  It gives one the confidence to find the necessary momentum, to pivot, whether it is standing one’s ground or ceding it with grace.  

The gap between two breaths contains a universe of possibilities.  

So, let’s get started.  Sit comfortably and breathe in (you didn’t need me to tell you to take off your mask, right?).  Breathe out.  Breathe out through your mouth, pushing the air out from your diaphragm.  Breathe in again, this time more deeply.  

If you haven’t closed your eyes yet, close them now.  Breathe in from your nose, filling your lungs.  Pause, if only for a nanosecond, then breathe out, again through your nose.  Give yourself the pause.  Continue breathing in and out like this for a few minutes.  Some people go for hours, but a few minutes once or twice a day is fine.  

Center your attention around your breath.  Thoughts may arise in your mind.  Ignore them.  They will drift by.  If they are important, they will be there when you are done.  Keep to the simple task of relaxing and breathing until you are done.

The answer to panic is the emptiness between breaths.  The breath can lead to space and clarity.  There is no reason to disappear.  Instead, transform and refresh by centering yourself.

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*The author has been a student of Ayurveda and its related disciplines for as long as she has practiced law. Her specialty is criminal law, and she has prevailed in a number of high profile and precedent setting cases. 

When Lawyers Reigned in the World’s Largest Company

By: August Bequai, Esq.*

“Cursed he be above all others who’s enslaved by love of money.”    

-Anacreon                    

Abraham Lincoln, Mahatma Gandhi, Nelson Mandela, and Franklin D. Roosevelt were all proud members of the legal profession. Their accomplishments and contributions to history and the law are well documented. History is not lacking in thousands of unnamed lawyers who have also played a crucial role in the evolution of their societies and the rule of law. The lawyers who reigned in the world’s  largest company-(the English East India Company; “The Company,” to historians)- are a continuum of that proud legal tradition.

A Behemoth is Born

There has never been anything like The Company in the annals of recorded human history. Today’s giant multinationals are but dwarfs when compared to this corporate behemoth. At the height of its power, The Company employed one of the largest three navies in the world, and an army of more than 200,000 well trained soldiers. It fought wars against the empires of China and India, and controlled more than fifty percent of the world’s trade at its peak. Its geographic expanse and influence were in par with those of the largest empires in history. Julius Caesar would have envied The Company.

 In the process, The Company corrupted the British political system to the point where it was said that every member of Parliament was on its payroll.  It also became a model for the corporate multinationals that followed in its footsteps. The Company’s beginnings, however, went unnoticed for many years. It was dwarfed at first by many of the trading companies that had sprung up in 16th century Europe to tap into the lucrative trade with the Indian subcontinent and Southeast Asia. Competition from Dutch and French trading companies was especially fierce. The Company’s growing financial interests, however, would embroil Britain in costly wars with China and other European countries.

Envious of the Spanish and Portuguese trade in the Americas and Asia, a small group of English merchants and investors met in a London pub on September 22, 1599, to plan the formation of a company to trade with Asia. They petitioned Queen Elizabeth for a Royal Charter; on December 31, 1600, the Charter was granted. Thus, was formed the Governor and Company of the Merchants of London trading into the East Indies.  Save for a handful of investors, few others took notice; let alone realizing that a multinational Behemoth was born.

Until 1707, The Company was officially  known as the English East India Company; after which it, came to be called the British East India Company. Informally, however, it would be referred to as The Company throughout its history. Its initial staff was small-(fewer than two dozen clerks); it made its headquarters at London’s Nags Head Inn. Years later, moving it to the fashionable India House. The Company sold stock to investors throughout Britain and Continental Europe. Its favored politicians were rewarded with both insider information and stock in The Company; whence came the term “ insider trading.”

Out of Control

By the late 18th century, The Company reigned supreme on the Indian subcontinent. It had bypassed the Dutch and French India trading companies in influence and financial returns for her investors. Many of its initial organizers and investors would become some of the wealthiest individuals in Britain; posing a serious challenge to the country’s political institutions. Her stranglehold over British politics would linger well into the mid-19th century. Promoting Leo Tolstoy to write, “A commercial company enslaved a nation.”

The Company’s lobbyists were the most numerous and best funded in the British Parliament; many having served in that institution.  The Company also retained an army of prominent legal scholars and literary figures to laud its contributions to Britain’s economy and free trade. Among them, such luminaries as Charles Lamb (England) and Ram Mohan Roy (India). The Company’s propagandists inundated the news outlets with reports of The Company’s efforts  to combat inequality, poverty, and the slave trade; neglecting to note that The Company was one of Asia’s biggest slave traders.  A prompting a late 18th century Mughal official to remark, “(The Company is) a handful of traders who have not yet learned to wash their bottoms.”

In her quest to maximize profits for her investors, The Company became embroiled in  costly military and political entanglements that historically had been the province of the British government; these would later come to roost home. Among these, a series of wars with the Mughal Emperors and princely rulers of the Indian subcontinent, conflicts with the Sultanates of East African over control of the slave trade, wars with China over the opium trade, and even entanglements in the American colonies over the tea trade. Unbeknown to many, The Company played no small role in sparking the American Revolution.  

From its inception, The Company’s policy had been to pit the various religious, racial, national and ethnic groups under its governance off against each other. Giving Siks preferential treatment over Muslims in its military; Indians over Chinese in its bureaucracy, light skin Africans over their darker brethren in commerce, and so on.  The Company’s policy of divide and conquer came to an ignominious end with the Indian Rebellion of 1857-(also known as the Sepoy or Indian Mutiny); which prompted the British government to take control of The Company’s global commercial empire. Corruption had finally given way to the rule of law.

The Final Curtain

As far back as the Middle Ages, England has had a tradition of legal reformers. They have played an important role throughout much of English history; constituting a respected and powerful segment of her political class.  As King John and those that followed him on the English throne would  find found out, the English are a nation of laws and lawyers; not of dogma or political zealots. It would only be a matter of time before Britain’s reformist lawyers; allied to their brethren in Parliament, would reign in The Company.

Serious efforts to regulate The Company commenced with enactment by Parliament of the India Act of 1784, which created the India Board; whose task it was to oversee The Company’s trading practices. When abuses by The Company continued, several of its governors-general were impeached; among these, Warren Hastings. Nevertheless, The Company’s powerful lobby was able to blunt many of the legal reformers efforts to curtail its power and influence well into the  19th century.

In 1833, under pressure from both the public and legal establishment, the British government took control over much of The Company’s trade in India; in return for an annual dividend of 10.5% to its stockholders. That dividend continued to be paid for more than 100 years.  The Company’s end as a viable business entity, however, came in 1858.  In response to the political fallout from the Indian Rebellion of 1857, reformers and the legal establishment lobbied Parliament to enact the Government of India Act; which nationalized The Company. This was followed by the East India Stock Dividend Redemption Act in 1873, which provided for the formal dissolution of The Company a year later. The final curtain had come down.

Lessons to be Learned

The Company was history’s most powerful and enduring multinational business organizations; a de facto state mobile, with few nations able to rival its wealth and influence. It became a model for many of the multinational businesses that followed in its footsteps.  It embroiled itself in both domestic and international politics and came to view itself as independent of the British state; responsible solely to its investors. It came to view British law as an impediment to its quest for wealth, and Britain’s lawyers as inconsequential blowhards.

The Times of London would write that The Company, “accomplished a work such as in the whole history of the human race no other trading Company ever attempted.”  The Times failed to note, however, that the law and the lawyers that enforced it were not inconsequential and a nuisance as The Company had come to view them; they spanned a proud tradition of more than 1,000 years of English history and were a force to reckon with inside British society and politics.

The Company and her directors, while astute in business, had failed to grasp the important role of the law and lawyers in human governance. The Company‘s wealth and arrogance had blinded it to the realities of British politics and society. While slow to act at first, when the British legal establishment finally acted, it did so decisively at The Company’s detriment. An important lesson to heed for today’s arrogant and self-absorbed multinational corporations..

Closing

The legal profession is not a cult, religion, or political dogma. Lawyers are not a monastic class, ready to evangelize to the world at large. Lawyers are one of the oldest professions in human history and will continue to serve humanity long after many of today’s multinationals and their management are long gone and forgotten. The law is the foundation that enables society to function.

Lawyers as a class, should never forget that they are part of a proud and ancient reformist tradition. Like their 19th century brethren in Britain, they are the firewall that ensures equal justice to both weak and strong alike. These are some of the important lessons we would do well to learn from how Britain’s lawyers reigned in the most powerful business entity in recorded human history.

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*The views expressed are solely those of the editor.

                                

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