COLLECTIVE MEMORY, HISTORY, AND SOCIAL JUSTICE

Sharon K. Hom
Eric K. Yamamoto**

This Article ispart of a largerproject, entitled Re-Forming Civil Rights in

Uncivil Times, that will be published as a special 2001 issue of the UCLA Amer-
asia Journal, guest edited by Professors Horn and Yamamoto. The Article describes
first the larger project, an interrogationof rights in the context of the U.S. civil rights
legacy and the development of internationalhuman rights in the twentieth century.
It then focuses criticaldiscussion on two case studies, one current and one historical
(Rice v. Cayetano and the Civil Rights Congress), and develops two theoretical
and strategic aspects of the project: (1) an analysis of the dynamics of collective
memory in framing present-day justice grievances and claims, and (2) a critique of
the complex intersection of international and domestic rights discourse and
practice.

IN TRO DU CTIO N ........................................................................................................... 1748

1. DOMESTIC CIVIL RIGHTS AND INTERNATIONAL HUMAN RIGHTS:
C HALLENGES AND POSSIBILITIES ......................................................................... 1752
II. RE-FORM ING C IVIL RIGHTS ................................................................................. 1754
III. RIGHTS, JUSTICE, AND THE STRUGGLE OVER COLLECTIVE MEMORY
(ERIC K . YA MA MOTO ) ......................................................................................... 1756
A. C ollective Mem ory ...................................................................................... 1757
B. Multidisciplinary Insights ............................................................................ 1760
C. Implications for Justice Strategies ................................................................ 1764
D. Rice v. Cayetano ........................................................................................... 1766
E. The O ffice of H awaiian Affairs ................................................................... 1766
F. Th e C hallenge ............................................................................................. 1768
G. Th e Decision ............................................................................................... 1770
H. The Battle over Collective Memory ............................................................ 1771
I. Rice Suprem acy ............................................................................................ 1773
IV. INTERNATIONALIZING U.S. CIVIL RIGHTS: HISTORICAL INSIGHTS
AND CURRENT CHALLENGES (SHARON K. HOM) ............................................... 1777
A . International Moves .................................................................................... 1779
B. How I Found/Lost My Way in the 1950s Enroute
to the Twentieth C entury ........................................................................... 1793

* Professor of Law at City University of New York, School of Law.

** Professor of Law, William S. Richardson School of Law, University of Hawaii. The Authors
thank their research assistants, Michelle Kim, May Mon Post, and Alison Lipsky for their research
and manuscript preparation assistance.

1747
1748 47 UCLA LAW REVIEW 1747 (2000)

Asking yourself a question,

that's how resistance begins-
and then asking another that question

Someone resists
And then someone else,
And then someone,
And then'

INTRODUCTION

We live in sobering times. The dawning of the new century unveils famil-
iar and persistent global and local inequalities, conflict and violence, human
suffering and environmental destruction. As the first United Nations High
Commissioner for Human Rights recognized, "the world picture of human
rights violations continues to display the same disturbing patterns and trends
that it did prior to the establishment of the United Nations."2 Indeed, despite
the current rhetoric in foundation, government, and policy circles about the
rise of civil society and the rule of law, we live in violent-uncivil-times.
Hundreds of thousands of civilian men, women, and children have been
butchered in "internal" ethnic and religious conflicts throughout the world;
and the killing continues? More than six million people are exploited in some
form of bonded labor or human servitude, including the forced prostitution
of children and women, the forced recruitment of child soldiers, and the exploi-
tation of child labor.4
Within the United States, the level of violence against people of color,
women, and gays and lesbians also signals the uncivility of the times. White
supremacists dragged James Byrd behind a truck until his body parts tore off.
Gay-bashers beat Matthew Shepard and left him to die on a fencepost.5 The
U.S. Supreme Court invalidated the Violence Against Women Act. Random

1. REMCO CAMPERT, THIS HAPPENED EVERYWHERE: SELECTED POEMS OF REMCo CAMPERT

65-66 (Manfred Wolf trans., 1997). We thank Molly Graver for sharing this poem with us.
2. Jose Ayala-Lasso, Making Human Rights a Reality in the Twenty-First Century, 10 EMORY
INT'L L. REV. 497, 498-99 (1996).
3. See MtDICINS SANS FRONTIERES, POPULATIONS IN DANGER (Franqois Jean ed. & Nora
Fitzsimmons et al. trans., 1992).
4. See Stephanie Farrior, The International Law on Trafficking in Women and Children for
Prostitution:Making it Live up to its Potential, 10 HARV. HUM. RTS. J. 213 (1997).
5. See Rene Sanchez, 'America's Largest Problem' Is Hate, President Tells Gay Group, WASH.
POST, Oct. 3, 1999, at A6 (describing the Byrd and Shepard killings as part of America's "hate
problem").
6. See United States v. Morrison, 120 S. Ct. 1740 (2000).
Collective Memory 1749

racial shootings occur with alarming frequency. In New York, Newark, Los
Angeles, and other cities, police not only admit to racial profiling of blacks
and other dark-skinned minorities, they participate in numerous racial shoot-
ings and false prosecutions of innocent people And while death penalty sup-
porters advocate for more executions more quickly, some judges and politicians
are acknowledging not only the racial disparity in death sentencing, but also
the startlingly high percentage of death penalty mistakes.8
These realities of domestic and international violence are related to the
economic violence of a global (dis)order that relegates the majority of humans
on the planet to poverty and destroys local communities and cultures. Despite
demands by developing countries for a more equitable share of the world's
resources, such as those made in the New International Economic Order
(NIEO) plan advocated by Third World countries and adopted by the United
Nations General Assembly in 1974,' the gap between poor and rich countries
continues to widen. "The problem of the problem of inequality lies not in pov-
erty, but in excess. 'The problem of the world's poor,' defined more accurately,
turns out to be 'the problem of the world's rich.""... Today, perhaps humbled
by the colossal failure of structural-adjustment approaches and short-term stabi-
lization measures that surfaced in the Asian financial crisis of 1998, even the
International Monetary Fund is deploying the language of poverty reduction."
Consider statistics from the 1999 United Nations Development Pro-
gramme (UNDP) Human Development Report" concerning the concentra-
tion of wealth worldwide.
1. By the late 1990s, the top one-fifth of the world's people lived in the
highest income countries and had 86 percent of the world's Gross
Domestic Product (the bottom fifth just 1 percent );

7. See Lynne Duke, Giuliani Hit by Barrage of Criticism: Reaction to Latest Shooting Draws Fire
from All Sides, WASH. POST, Mar. 25, 2000, at A6 (describing the shooting of Patrick Dorismond
by New York police).
8. See Raja Mishra, A Death Row Case that Begs Scrutiny; National Concern Heightens Interest
in Md. Man's Appeal, WASH. POST, Mar. 17, 2000, at Bi.
9. These demands included fairer trade, greater access to emergency funds, increased aid, debt
alleviation, and the stabilization of commodity prices. See THE DICTIONARY OF 20TH-CENTURY
WORLD POLITICS 478 (Jay M. Shafritz et al. eds., 1993).
10. C. Douglas Lummis, Equality, in THE DEVELOPMENT DICTIONARY: A GUIDE TO KNOW-
LEDGE AS POWER 38, 50 (Wolfgang Sachs ed., 1992).
11. See Walden Bello, Rethinking the Asia: Reform the Jurassic IMF, FAR E. ECON. REV., Dec.
9, 1999, at 44.
12. UNITED NATIONS DEV. PROGRAMME, HUMAN DEVELOPMENT REPORT at 2-6, U.N. Sales
No. 99.III.B.43 (1999).
1750 47 UCLA LAW REVIEW 1747 (2000)

2. Although only 10 percent of people worldwide speak English, 80

percent of internet websites appear in English;" and
3. The assets of the top three billionaires total more than the combined
Gross National Product of all the least-developed countries and their
600 million people.
In the United States, where a "rising tide" was supposed to lift all the
boats, a recent study by the Center on Budget and Policy Priorities suggests
that despite two decades of economic growth, only a small segment has bene-
fited. Economic inequality may now be at its most extreme since the Second
World War. 4 This is particularly so at the intersection of race and poverty.
Statistics tell part of the story. For instance, 46.3 percent of black children
live below the poverty line, compared to 12.3 percent of white children;' 5
blacks with Bachelors degrees earn 76 percent of the salary of similarly quali-
fied whites.16 Disparities such as these are explained in part by the persistence
of racism against people of color, particularly African Americans, at all levels
of employment. Indeed, a massive study in 1999 by the Russell Sage Founda-
tion, covering four major cities, 10,000 workers, and 3000 businesses, found
significant racial discrimination in favor of whites in institutional hiring and
promotion practices.
Other parts to this uncivil story lie beyond statistics. Despite entrenched
group economic disparities, strident and sometimes virulent political campaigns
have succeeded in legally banning affirmative action, cutting off the rights
of immigrants and their children, barring bilingual education, prohibiting gay
marriage, and paring down welfare benefits.'" The current Supreme Court also
has sharply limited the reach of civil rights laws, except in cases in which
whites claim "reverse discrimination," dissociating law from many communi-
ties' sense of justice.' That a Republican presidential candidate could turn his
flailing campaign around in South Carolina, while the state was fighting to

13. See id. at 2-5. The highest income countries also had 74 percent of the world's telephone
lines (the bottom fifth just 1.5 percent), constituted 93.3 percent of the world's internet users, and con-
sumed 84 percent of the world's paper.
14. See Cutting the Cookie, ECONOMIST, Sept. 11, 1999, at 26 (showing that the wealthiest
1 percent of households own 39 percent of the nation's wealth).
15. See ANDREW HACKER, Two NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE,
UNEQUAL 104-05 (2d ed. 1995).
16. See id. at 101-02.
17. See Russell Sage Foundation, Multi-City Study of Urban Inequality (visited Apr. 23, 2000)
<http://www.russellsage.org/programs/proj-reviews/multicity.htm>.
18. See generally William Booth, In California, Gay Marriage Battle Is a Family Feud, WASH.
POST, Oct. 22, 1999, at A2 (linking political attacks on gays to attacks on affirmative action, immigra-
tion, and bilingual education).
19. See Eric K. Yamamoto, Critical Race Praxis: Race Theory and Political Lawyering Practice in
Post-Civil Rights America, 95 MICH. L. REV. 821, 845 n.117 (1997).
Collective Memory 1751

continue government flying of the Confederate flag, and at the Bob Jones
University, which banned interracial dating as a sin,2" speaks volumes about
what Steven Steinberg calls America's "retreat from racial justice."'"
These uncivil times present urgent challenges for activists, scholars, and
everyone called to social justice. What should critical scholars, activists and
teachers do when faced with this picture of human suffering and inequitable
distribution of the world's resources and wealth? And what is the role of law
in progressive change? Certainly, law as legal theory, as an academic formation,
as a field of practice, and as competing discourses and metadiscourses, is consti-
tutive of and is constituted by multiple social and economic spheres. Through
immigration and citizenship narratives, a system of state sanctioned death, and
an impoverished and partial vision of welfare and social security, dominant
U.S. law and legal discourses define community and belonging, dignity and sur-
vival, and life and death.
As our contribution to the Symposium's theme of race and the law, we
develop here part of our larger on-going collaborative project-Re-Forming
Civil Rights in Uncivil Times. For that project we focus on law as read through
its primary code word, rights, and on race as an analytical category that is intri-
cately embedded within the shifting matrix of U.S. and global demograph-
ics." Like culture for anthropology and time for archeology, the idea of rights
constitutes one of the key foundational categories of analysis for western liberal
law traditions. Our larger project interrogates rights in the context of the U.S.
civil rights legacy and the development of international human rights in the
twentieth century, and it examines the cross moves to both domesticate inter-
national law enforcement and to internationalize civil rights strategies.

20. See Dan Baltz, Gore Seals Nomination, Bush Wins Big, WASH. POST, Mar. 8,2000, at Al.
21. See generally STEPHEN STEINBERG, TURNING BACK: THE RETREAT FROM RACIAL JUSTICE
IN AMERICAN THOUGHT AND POLICY (1995).
22. See Sharon K. Hom, Cross-Discipline Trafficking: What's Justice Got to Do with It?, in
ORIENTATIONS: MAPPING STUDIES IN THE ASIAN DIASPORA (Kandice Chuh & Karen Shimakawa
eds., forthcoming 2000).
23. The U.S. Census Bureau projects that by the year 2050, the U.S. population is expected
to grow nearly 50 percent to 394 million. The Hispanic population is expected to grow threefold to
97 million, accounting for one in four Americans, and the black population to nearly double to 61
million. Asian Americans are expected to grow in population to 34 million. The Native American
population is expected to nearly double to 4.4 million. The white population will increase but will
constitute only 75 percent of the population, a drop from its 83 percent in 1995. One in seven (13.8
percent) persons five years and older in the United States use a language other than English at home.
See U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED
STATES 9, 14, 56 (1998).
1752 47 UCLA LAW REVIEW 1747 (2000)

I. DOMESTIC CIVIL RIGHTS AND INTERNATIONAL HUMAN

RIGHTS: CHALLENGES AND POSSIBILITIES

The once potent U.S. civil rights movement of the sixties sought trans-
formation of the spirit, mind, and most of all, the daily material conditions
of peoples' lives. From Civil War abolitionists to the Montgomery Boycott
to the March on Washington, civil rights mobilized African Americans and
communities of all colors, including liberal whites, men and women, to break
down racial barriers that created and supported the inequities of existing social
and economic hierarchies.2" Civil rights as a call to action tapped into diverse
peoples' moral and ethical cores; "civil rights" meant rectifying deep injus-
tices.2" Someone remained awake, someone pointed the question, someone
resisted, then another and another.
As U.S. society moves into the next century, this progressive civil rights
legacy has been undermined by conservative political backlash and rhetorical
appropriation of rights language and its moral claims.26 The equality and
affirmative action social transformation goals of the fifties and sixties have been
challenged by the rhetoric of color blindness, racial preferences, and reverse
discrimination of the late eighties and nineties.27 Yet, this conservative civil
rights rhetoric clearly legitimates continuing inequities-witness California's
Proposition 209, the anti-affirmative action "Civil Rights Initiative."2 Narrow
civil rights laws have been largely ineffective against entrenched institutional
forms of discrimination. 29 Intraracial conflict and tensions emerge as blacks,

24. See generally THE EYES ON THE PRIZE: CIVIL RIGHTS READER (Clayborne Carson et al. eds.,
1991); see also JACK GREENBURG, CRUSADERS IN THE COURTS: HOW A DEDICATED BAND OF
LAWYERS FOUGHT FOR THE CIVIL RIGHTS REVOLUTION (1994).
25. See generally GREENBURG, supra note 24.
26. See STEINBERG, supra note 21, at 137-75.
27. See, e.g., City of Richmond v. JA.Croson Co., 488 U.S. 469 (1989). In Croson, the U.S.
Supreme Court held that the city's plan requiring nonminority contractors to subcontract a specified
quota of minority subcontractors violated the Fourteenth Amendment because it "denie[d] certain
citizens [namely, nonminority subcontractors] the opportunity to compete for a fixed percentage of
public contracts based solely upon their race." Id. at 493 (emphasis added). The Court also held that
the city failed to identify specific past discrimination against minority subcontractors that would satisfy
the "narrowly tailored" prong of the strict scrutiny test. See id. at 499; see also Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 227 (1995) (holding that "all racial classifications... must be analyzed by a
reviewing court under strict scrutiny"). In his concurrence, Justice Antonin Scalia noted that to pursue
"the concept of racial entitlement-even for the most admirable and benign of purposes-is to reinforce
and preserve for future mischief the way of thinking that produced race slavery, race privilege and
race hatred. In the eyes of government, we are just one race here. It is American." Id. at 239 (Scalia,
concurring).
J.,
28. See Yamamoto, supra note 19, at 827 n.30.
29. See Alan Freeman, Antidiscrimination Law: The View from 1989, TUL. L. REV. 1407, 1422-
41 (1990); see also Kimberl6 Williams Crenshaw, Race, Reform, and Retrenchment: Transformation
and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1332 n.3 (1988) (setting forth
Collective Memory 1753

Asian Americans, and Latinos charge each other with civil rights violations
in disputes over education and government contracting. Amid the emerging
demographic and economic fault lines, immigrants, migrant workers, women,
gays and lesbians, and the poor are claiming space at the crowded "rights"
table. °
Beyond the increasingly blurred domestic boundaries of the nation-state,
geopolitical shifts and transnational capital redefine meanings of "citizenship,"
"work," and "fair treatment,"'" and international genocide, ethnic conflict
throughout the world, indigenous peoples' claims, and truth commissions
reframe understandings of "accountability," "reparation," and "justice."32 The
foundational notion of rights itself is destabilizing. Buffeted by these inter-
national and domestic crosscurrents, "civil rights" in these "uncivil" times
has not only lost much of its transformative power, it can no longer mean-
ingfully do the progressive theoretical and strategic work it needs to do. The
domestic evidence-the movement's inability to coalesce and mobilize diverse
groups despite the persistence of vast social and economic inequalities, vio-
lence, and widespread, if subtle, discrimination.33 "Stirring the [a]shes," is how
one observer describes recent minority civil rights efforts. 4 A "post-civil
rights era" has emerged-whether as epitaph or hope remains to be seen.
Given this complex material, discursive and theoretical landscape, what
is to be done? Do we abandon civil rights altogether and search for some-
thing fresh? We think not. Despite its limitations, civil rights still carries
enormous purchase. Its rhetoric connects historically to reconstruction and
transformation. Its past practices link to mass protests, civil disobedience, and
public education.35 Its roots are embedded in established, although ideo-
logically limited and limiting, antidiscrimination law. And civil rights still

statistics showing that "[clontinuing disparities exist between African-Americans and whites in virtually
every measurable category"). See generally MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION
IN THE UNITED STATES: FROM THE 1960S TO THE 1990s (2d ed. 1994).
30. See ERIC K. YAMAMOTO, INTERRACIAL JUSTICE: CONFLICT AND RECONCILIATION IN
POST-CIVIL RIGHTS AMERICA (1999).
31. See Sharon K. Hom, Playing by Whose Rules and for What Ends?: Global Trade and Human
Rights, CHINA RTS. F., Spring 2000, at 22.
32. See generally WHEN SORRY ISN'T ENOUGH: THE CONTROVERSY OVER APOLOGIES AND
REPARATIONS FOR HUMAN INJUSTICE (Roy L. Brooks ed., 1999).
33. See Frances Lee Ansley, Stirring the Ashes: Race, Class, and the Future of Civil Rights Scholar-
ship, 74 CORNELL L. REV. 993 (1989).
34. Id. at 993.
35. See generally GERALD HORNE, THE COMMUNIST FRONT? THE CIVIL RIGHTS CONGRESS,
1946-1956 (1988) (describing the Civil Rights Congress's multifaceted civil rights program aimed at
social and economic transformations in U.S. society); see also infra Part IV. (addressing the struggles of the
Civil Rights Congress and lessons for today's civil rights and international human rights strategies).
1754 47 UCLA LAW REVIEW 1747 (2000)

signals the moral and ethical power of African Americans' struggles for freedom
and equality-for a better and fairer life for all.36

I. RE-FORMING CIVIL RIGHTS

What discursive and material strategies can we develop to both critically

build upon and move beyond this legacy? How do we reenvision in practical
terms the kind of personal and group transformation that (1) fires imaginations
and actions of broad constituencies for peaceably breaking down entrenched
social and economic barriers that impoverish many peoples' daily lives, and
(2) fosters the building of enduring relationships and the healing of conflicts
among diverse groups and communities?
The current academic literature about rights reflects several dominant
approaches.37 Most legal writing about U.S. civil rights either describes the
movement's history or focuses on technical reforms to antidiscrimination
law.38 Broader efforts tend to examine "justice" in abstract moral philosophical
terms without addressing the political challenges of translating theory for
frontline practice.39 In terms of organizational strategies, political rights work
tends toward top-down approaches-organizations and institutions crafting pol-
icy solutions and lobbying at high political levels without significant partici-
pation by or support of affected constituencies." In addition, critical theory
critiques of rights discourse and practice reveal hidden ideology and power in
law; yet, many of those critiques do not correspondingly offer workable
reconstructive strategies for healing wounds, building relationships, distributing
resources, and reordering institutions. 4'
The relationship between international and domestic rights discourse and
its implications for legal and political social justice strategies has also been under-
theorized. That theorizing is hampered by the limits of existing human rights law
and practice that marginalize economic and social rights. How can domestic

36. See generally RICHARD KLUGER, SIMPLE JUSTICE (1977) (documenting the history, context,
and meaning of Brown v. Board of Education, 347 U.S. 483 (1954)).
37. See THE POLITICS OF LAW (David Kairys ed., 3d ed. 1998) (critiquing the dominant liberal
legal approach to rights).
38. See generally CRITICAL RACE THEORY: THE CUTTING EDGE (Richard Delgado & Jean
Stefancic eds., 2d ed. 2000) (critiquing traditional civil rights approaches to legal justice). See also
Yamamoto, supranote 19 (critiquing limits of established civil rights approaches).
39. See, e.g., JOHN RAWLS, A THEORY OF JUSTICE (1971).
40. See Henry J. Steiner, Diverse Partners: Non-Governmental Organizations in the Human
Rights Movement (visited July 15, 2000) <http://www.law.harvard.edu/programs/HRP/Publications/
diversel .html> (summarizing some critiques directed at mainstream human rights nongovernmental
organizations (NGOs), based in developed countries).
41. • See generally BRUCE ACKERMAN & ANN ALSTOTT, STAKEHOLDER SOCIETY (1999);
Yamamoto, supra note 19.
Collective Memory, 1755

rights strategies of the United States draw more effectively upon international
human rights developments and at the same time inform global debates and
policies with local experience and strategies 2 International politics and eco-
nomics influence domestic conditions. Civil and human rights in the United
States are touted as models worldwide while U.S. and northern-based main-
stream human rights organizations dominate international nongovernmental
organizations (NGO) strategies. Yet, like the contemporary civil rights move-
ment, the top-down, law-focused human rights approach of mainstream tradi-
tional international human rights organizations have also been criticized for
their lack of broad-based constituency support and their tendency to focus
strategically on the first generation of civil and political rights.43
Moving across several interconnected realms-the theoretical, structural,
and relational (individual and group) and spiritual-our broader project seeks
to explore these questions to re-form civil rights.44 The project is aimed at reen-
visioning rights rhetoric and practice in concrete settings to give renewed stra-
tegic currency to a redeployment of "civil rights." Its immediate goal is to help
generate practical political and legal strategies for dismantling group barriers
to full and fair participation in the U.S. polity. Its long-range reconstructive
goal is the expansion and development of concepts, discourses, and critical
methods that engender transformative institutional and social processes. In
short, the project aims to contribute to the generation of a "culture of social
justice" in an often conflicted, multifaceted, diverse U.S. society. It endeav-
ors to reconnect civil rights and law to redistributive ethics, a broader social
justice vision and the building not only of temporary alliances but also lasting,
productive group relationships-in Pedro Casald6liga's phrase, "a committed
struggle toward human flourishing."45
To move toward this, the project reenvisions civil rights within and across
interrelated theoretical, structural, relational, and spiritual realms. The theo-
retical work calls for critical social, economic, and legal analyses. This means
generating theoretical frameworks for examining the particular and contextual,
and the structural and discursive, aspects of rights controversies. The struc-
tural work addresses individual and collective strategies that seek to transform

42. See infra Part IV.

43. See id.
44. The project seeks to reach broad, distinct, and related audiences of activists, lawyers,
teachers, and community persons interested in civil and human rights and social justice in the United
States and other countries. An initial volume will be published in part as a special "2001 Civil Rights"
issue of the UCLA Amerasia Journal. An expanded trade version will include additional visual, narra-
tive, and legal materials, including photographs, poetry, stories, and examples of strategic uses of the
"re-formed" civil rights we propose.
45. Molly Graver, Resisting Disappearance, Consmcting the World: The Spirituality of a Salvadoran
Women's Collective, in34 LISTENING: J.RELIGION & CULTURE48, 51 (1999) (quoting Pedro Casaldaliga).
1756 47 UCLA LAW REVIEW 1747 (2000)

structural and material conditions. This includes generating concrete ways to

act upon accepted responsibility for remedying specific group-based injuries
and also for rebuilding damaged social relationships. The relational and
spiritual realm explores individual and collective transformation in the context
of material realities. This aspect of our project attempts to respond to the
overarching question, "So what?" How will reenvisioned civil rights make a
difference, and for whom? What group and societal interests are at stake, and
what roles will intellectuals, activists, and other concerned citizens play?
The following parts develop two of the many aspects of our larger project.
The discussion in Part III engages the first realm-generating critical theo-
retical frameworks for examining the particular and contextual, and the
structural and discursive, aspects of rights controversies." More particularly,
it explores the dynamics of collective memory and the significance of that
group memory to how injustice is framed, rights are asserted and justice is
achieved. Those dynamics are then illuminated by an in-depth inquiry into
the battle of collective memory in the litigation of and recent Supreme Court
decision in Rice v. Cayetano.47
The discussion in Part IV builds upon the collective memory and framing
of justice discussion of Part III, and engages both the first and second realms,
with an emphasis on the latter-individual and collective strategies that seek
to transform structural and material conditions.4" More specifically, it criti-
cally references current domestic moves to internationalize legal strategies and
suggests that looking back to the marginalized history of the pre-1960s civil
rights movement is a powerful and empowering theoretical and strategic exer-
cise, with insights for more effective deployment of international human rights
law. In focusing on questions of accountability and constituency, it urges the
exploration of multiple simultaneous approaches.
In developing these ideas as a part of our larger collaborative project,
we also retain our individual authorial voices and perspectives.

III. RIGHTS, JUSTICE, AND THE STRUGGLE OVER COLLECTIVE

MEMORY (ERIC K. YAMAMOTO)

Who frames injustice in the law's eye and the public's mind? How and
with what societal effects? As these questions imply, in important ways, fram-
ing injustice is about social memory.

46. See infra Part III.

47. 120 S. Ct. 1044 (2000).
48. See infra Part IV.
Collective Memory, 1757

In an era characterized by a conservative "retreat from justice, ' 9 many pro-

gressive lawyers and activists seeking legal justice define injustice narrowly.
They focus on legal doctrine and its definition of a civil rights claim. They
then frame the injustice in language that satisfies the requirements of anti-
discrimination law-for instance, the disparate impact on racial minorities
of discriminatory practices of an Alaskan salmon cannery."0 That framing,
while legally apt, narrows public imagination and debate. In its search for
"relevant facts" and crisp argument, it relegates history and community agi-
tation to back-up roles in civil rights struggles.5'
By contrast, groups seeking social justice tend to define injustice more
broadly. To fuel political movements, they expand the law's narrow framing of
injustice and focus on historical facts to more fully portray what happened and
why it was wrong. In this way, history becomes a catalyst for mass mobilization
and collective action aimed at policymakers, bureaucrats, and the American
conscience.
Both of these approaches to framing injustice have contributed to ground
level justice efforts. But both, in their handling of history, miss something
of considerable strategic import. They miss what the 1950s' Civil Rights Con-
gress (CRC) incorporated strategically into its action plans,52 and what today's
conservative think tanks hold as a lynchpin: Social understandings of historical
injustice are largely constructed in the present. Those understandings are
rooted less in backward-looking searches for "what happened" than in the
present-day dynamics of collective memory.

A. Collective Memory

As I described in an earlier work,53 group identities, social suffering and

collective accounts of historical events evade easy description. How are his-
torical memories of group pain and loss formed by group experiences and con-
tinually re-formed by changing ideology and social circumstances? How, for
instance, do group memories of racial grievances inform current conflicts and
shape the ways in which racial wounds are aggravated or salved?

49. See STEINBERG, supra note 21, at 107-36.

50. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 642 (1989) (holding that a plaintiff
alleging a racially disparate impact bears the burden of establishing a prima facie case including
isolating and identifying specific employment practices responsible for the disparate impact).
51. See generally GERALD P. LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF
PROGRESSIVE LAW PRACTICE (1992) (describing narrow legal services and civil rights "law-
centered" approaches to political and community lawyering).
52. For Sharon Hom's in-depth discussion, see infra Part IV.
53. See YAMAMOTO, supra note 30.
1758 47 UCLA LAW REVIEW 1747 (2000)

Recent international works identify the political dimensions of memory

reconstruction by both oppressors and victims, at all levels. Individuals, social
groups, institutions, and nations filter and twist, recall and forget "information"
in reframing shameful past acts (thereby lessening responsibility) as well as in
enhancing victim status (thereby increasing power). Collective memory not
only vivifies a group's past, it also reconstructs it and thereby situates a group
in relation to others in a power hierarchy.
For instance, the recent investigation of the International Commission
on the Balkans (the Commission) revealed a tortuous postcommunist remaking
of history integral to the justification of ethnic and religious violence in the
Balkan states.54 The Commission found that Balkan leaders-Serbian presi-
dent Slobodan Milosevic, Croatian president Fanjo Tudjman, and Bosnian
Serb leader Radovan Karadzic-identified ancestral and religious strife as
the main sources of recent atrocities. The Commission also found that the
political leaders' specific characterizations of ancestral strife were unsupported
by historical circumstances. The politicians deployed falsely constructed
ancient enmities to justify the unjustifiable. According to the Commission,
the politicians "have invoked the 'ancient hatreds' to pursue their respective
nationalist agendas and have deliberately used their propaganda machines to
justify the unjustifiable: the use of violence for territorial conquest, expulsion of
'other' peoples, and the perpetuation of authoritarian systems." 5
What does this mean concretely, particularly for groups in the United
States asserting civil and human rights claims and seeking both traditional legal
and innovative cultural remedies? We start with three brief, more affirming
accounts of collective memory dynamics and justice claims.
The public portrayal of group memory transformed the process of Japanese
American redress. For Japanese Americans interned during World War II
without charges or trial because of race, the deep, wounded need to tell their
story (to remake history from their perspective) drove the 1980s redress move-
ment into the courts, legislatures, schools, and newsrooms. It was only when
scores of now-aging Japanese Americans spoke publicly for the first time
before a congressional commission in 1982, telling their stories both of loyalty
and patriotism and of loss, humiliation, and continuing hardship, did a new
story emerge. That story deeply touched even conservatives on the commis-
sion. It framed United States-generated injustice in terms of the human suf-

54. See generally LEO TINDEMANS ET AL., UNFINISHED PEACE: REPORT OF THE INTER-
NATIONAL COMMISSION ON THE BALKANS 13-26 (1996).
55. Id. at xiv.
Collective Memory 1759

fering of loyal U.S. citizens and thereby grounded $1.6 billion in reparations
and a presidential apology. 6
Yet, that emergent group memory, which so moved mainstream policy-
makers and the public, was partial. It was partial-that is, incomplete-
because the dominant story of patriotic suffering focused only on unquestioning
loyalty and acquiescence to governmental abuse. It was partial-that is,
ideological-because it erased from history fierce Japanese American resistance
to the intemment's injustice, including the constitutional challenges, 7 opposi-
tion to the military draft, and civil disobedience in the internment prisons.
This partial memory, publicly proclaimed and governmentally recognized, split
open old wounds of exclusion within the Japanese American community,
wounds only now beginning to heal.58
For many of the 10,000 Philippine citizens tortured and murdered for
their political opposition to the former Ferdinand Marcos regime, reshaping
memory became both a means to challenge injustice and a psychological
end in itself. 9 Consider the anguish of the family of Archmedes Trajano, a
college student who posed a mildly critical question to Marcos's daughter
at a forum and was whisked away, tortured for days, and thrown off a build-
ing. For his family, and thousands of others, there existed the need to create
a new memory beyond the excruciating story of personal loss and suffering-
a memory that included a sense of social justice and government accountabil-
ity. To write this new memory collectively, many families, lawyers, bureaucrats
risked much in the Philippines to aid the thirteen-year human rights multi-
district class action litigation in the United States.'
For Native Hawaiians spiritually, collective memory is ancestral-
genealogy preserved orally over generations through chants.6" For native Hawai-
ians seeking justice, collective memory integrates the ancestral with current

56. See COMMISSION ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, PER-

SONAL JUSTICE DENIED: REPORT OF THE COMMISSION ON WARTIME RELOCATION AND THE
INTERNMENT OF CIVILIANS 185-212, 245-5 2 (1982).
57. See Korematsu v. United States, 323 U.S. 214, 216 (1944) (rejecting Fred Korematsu's
due process challenge to internment); see also Eric K. Yamamoto, Korematsu Revisited-Correcting
the Injustice of ExtraordinaryGovernment Excess and Lax Judicial Review: Time for a Better Accommodation
of National Security Concerns and Civil Liberties, 26 SANTA CLARA L. REV. 1 (1986).
58. See Chris K. lijima, Reparationsand the "Model Minority" Ideology of Acquiescence: The Neces-
sity to Refuse the Return to Original Humiliation, 40 B.C. L. REV. 385 (1998) (describing the model minor-
ity ideology in reparations discourse).
59. I served as a procedural specialist for plaintiffs in the federal court class action litigation
in the United States. The trial resulted in about a $1.3 billion judgment for violation of international
human rights law. See In re Estate of Marcos, 910 F. Supp. 1470, 1470 (D. Haw. 1995) (noting that the
judgment against the Marcos estate remains unpaid).
60. See id.
61. See Catherine Kau & Melody K. MacKenzie, Religious Freedom, in NATIVE HAWAIIAN
RIGHTS HANDBOOK 229, 229-31 (Melody Kapilialoha MacKenzie ed., 1991).
1760 47 UCLA LAW REVIEW 1747 (2000)

claims of right. Native Hawaiians are still struggling with the ramifications
of the U.S. government-aided illegal overthrow of the sovereign Hawaiian
nation in 1893. They lost their government and homelands and had their
language and culture suppressed. Recounting "what happened" years ago is
difficult. "Who we were and what happened" are integrally connected to how
Hawaiians were sometimes pejoratively described by white American mission-
aries (savages and pagans), businessmen (incompetents), and politicians (a dying
race), and later by racial immigrant groups (lazy and uneducated).62 Making
the task of recounting even more difficult is the present-day reality that native
Hawaiians are building their own new understandings of "what happened" and
"who we were" partly in order to claim "what is rightfully ours." This linkage of
events to identity and then to rights implicates contemporary notions of group
and nationhood.
Thus, answering "what happened and who we were" is only partially an
exercise in factual discovery. It is also an act of historical and political con-
struction.63 And in the process of construction, answers to these questions are
shaped by pending sovereignty and reparations justice claims.
These brief accounts about the complexity of collective memory raise
two key questions: (1) How is collective memory shaped by, and in turn how
does it shape, perceptions of injustice; and (2) How can understanding col-
lective memory dynamics help transform progressive rights strategies in a "post-
civil rights" era?
Drawing upon recent works by Martha Minow,64 we sketch below insights
from multidisciplinary memory studies and outline implications for progressive
justice strategies.

B. Multidisciplinary Insights

The most significant general insight is that memories are not simply
retrieved from a brain storehouse. They are constructed and continually recon-
structed. They are not stored whole for future use but are produced by neuro-
chemicals and by complex interactions among people and their social
environments.65

62. See TOM COFFMAN, NATION WITHIN: THE STORY OF AMERICA'S ANNEXATION OF
THE NATION OF HAWAII (1998).
63. See OMI & WINANT, supra note 29, at 48-50.
64. See, e.g., MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS (1998); Martha
Minow, Remembering to Remember, Phi Beta Kappa Address at Harvard College (June 5, 1999).
65. Biology tells us that the release of neurochemicals during trauma may physically affect
cerebral tissue, and this may account for powerful recall of horrible events such as sexual abuse,
wholesale evictions, and war experiences. See John H. Krystal et al., Post Traumatic Stress
Disorder:Psychobiological Mechanisms of Traumatic Remembrance, in MEMORY DISTORTION: How
Collective Memory 1761

Cognitive science (drawing from biology, philosophy, and psychology)

thus rejects the metaphor of the brain as computer and memory as data retrieval.
It suggests that people often subconsciously choose what to remember in ways
that reflect their desires, hopes, and the cultural norms of their social envi-
ronment.66 As those hopes and desires change, memories alter. "People
change, and the meanings of their past experiences change as their ways of
interpreting the world shift. '6 7 For this reason, some historians call this kind
of contemporary remembering the "historical present."6
Moving roughly from the individual to the group, social psychology
emphasizes the importance of cultural forms and institutional practices in the
development of collective memory.69 Memories of past events, persons, and
interactions are culturally framed because they are subject to socially structured
patterns of recall, they are often triggered by social stimuli and they are con-
veyed through communal language.
Especially important in this sifting, transforming developmental process
are narrative structures .71"Narrative possibilities and constraints frame what
is remembered and ...stories reinforce a group's identity and compose the

MINDS, BRAINS, AND SOCIETIES RECONSTRUCT THE PAST 150, 154-55 (Daniel L. Schacter ed.,
1995) [hereinafter MEMORY DISTORTION]; see also EDWIN M. YODER, THE HISTORICAL
PRESENT: USES AND ABUSES OF THE PAST (1997). New studies in neurobiology "bring us closer
each day to understanding the physical operation of memory-while simultaneously teaching us the
crucial roles of narrative, culture and history in memory's actual work." MINOW, supra note 64, at 4.
66. See Gerald D. Fischbach & Joseph T. Coyle, Preface to MEMORY DISTORTION, supra note
65, at ix; see also Martin J.Conway, Autobiographical Knowledge and Autobiographical Memories, in
REMEMBERING OUR PAST: STUDIES INAUTOBIOGRAPHICAL MEMORY 67 (David C. Rubin ed., 1996)
(suggesting that memories are "created at retrieval using components like narrative, imagery, emotion
and goals.").
67. Minow, supra note 64. Martha Minow also offers an important caveat: Even though
collective memory is constructed, no person or even group can fully control that construction of
memory-culture, politics, and economics exert external forces on the process. And even though
collective memory is constructed, "some versions of the past are wrong"-"for example, the Holo-
caust did not occur." Id.
68. Cf. YODER, supra note 65, at xi-xviii.
69. Michael Schudson aptly describes this social-psychological perspective.
Memory is social. It is social ... because it is located in institutions rather than in individual
human minds in the form of rules, laws, standardized procedures, and records, a whole set of
cultural practices through which people recognize a debt to the past (including the notion
of "debt" itself) or through which they express moral continuity with the past (tradition,
identity, career, curriculum). These cultural forms store and transmit information that indi-
viduals make use of without themselves "memorizing" it.
Michael Schudson, Dynamics of Distortion in Collective Memory, in MEMORY DISTORTION, supra note
65, at 346, 346-47.
70. See id. at 347.
71. See Craig R. Barclay, Autobiographical Remembering: Narrative Constraints on Objectified
Selves, in REMEMBERING OUR PAST: STUDIES IN AUTOBIOGRAPHICAL MEMORY, supra note 66,
at 94.
1762 47 UCLA LAW REVIEW 1747 (2000)

frameworks people use to make the past meaningful. '2 Influential narratives
function in two ways. The first gives us the language, ideas and images-the
story-we need to "comprehend" the past. The second, the grand narrative,
frames the relationship of the past to the present. It shapes the past in light of
how we see (or want to see) ourselves and others in the present.
Michael Schudson vivifies this latter point in describing how differing
underlying historical narrative structures generate differing views of Native
Americans today.
If you recall the wars between the United States government and
Native Americans as part of the history of nation-budding, it is one
story; if you recall it as part of a history of racism it is another. If you
see the skeletal remains of Native Americans from long ago as part of
an impersonal history of the human species, the remains are valuable
specimens for scientific research; if you understand them as the cher-
ished property of their descendants, they deserve reverent treatment and
should be reburied according to the customs of Native American
73
groups.
Direct experiences, cultural forms, institutional practices, and political
ideology generate the underlying, or structural, narratives. They combine to
form a lens through which group history is viewed and contemporaneous stories
of the past are developed. Conversely, psychological dysfunction sometimes
occurs when'a person's or a group's culture lacks the narratives to help organize
and make meaning out of harsh events and situations. These people indi-
vidually or collectively lack one lens for coalescing coherent memories con-
necting the past to the present. 4
Because this lens is constructed, "remembering" the past is neither inno-
cent nor objective. As historian Peter Burke eloquently observes,
A way of seeing is a way of not seeing, a way of remembering is a way
of forgetting, too. If memory were only a kind of registration, a "true"
memory might be possible. But memory is a process of encoding infor-
mation, storing information and strategically retrieving information, and
there are social, psychological, and historical influences at each point. 5
Historical memory is selective.

72. Id.
73. Schudson, supra note 69, at 346.
74. See generally Jerome Bruner & Carol Fleisher Feldman, Group Narrativeas a Cultural Context
of Autobiography, in REMEMBERING OUR PAST: STUDIES IN AUTOBIOGRAPHICAL MEMORY, supra
note 66, at 291. Thus, to understand memory, let alone collective memory, we need to look at more
than science and social science. We need to draw upon narrative theory, autobiography, cultural
studies, and historical methodologies. See also Minow, supra note 64.
75. Peter Burke, History as Social Memory, in MEMORY: HISTORY, CULTURE AND THE MIND
97, 103 (Thomas Butler ed., 1989).
Collective Memor' 1763

These multidisciplinary insights are brought to bear and extended in Peter

76
Novick's recent book on collective memories of the Holocaust. Novick
examines not the Holocaust events themselves, but rather the initial postwar
silence about these events and the later political struggles among different
groups over Holocaust memory. Most important, Novick's book links the con-
temporary struggles over collective memory to present-day ideology, political
goals and identity formation.
Novick starts with a clear acknowledgment of the human horror of the
Holocaust. His focus, though, is on what he perceives to be America's preoccu-
pation with the Holocaust. The centering of the Holocaust in the American
consciousness has not occurred spontaneously. According to Novick, it is
motivated as much by political as moral concerns. As one commentator aptly
summarized, "It has come about through a confluence of sociological needs
and available cultural resources, as well as through tactical calculation. The
legacy of the Holocaust 77has been treated as a political issue and deliberately
used for political ends.
One such end is to set the record straight-to respond to gross historical
distortions. Those who contend that the Nazi's and their supporters never
exterminated Jews en mass are wrong. Another more complicated political
end, according to Novick, is the forging of a secularized Jewish identity in the
78
United States in part to maintain political and economic power.
79
Novick's well-researched work is controversial, some say polemical. Its
broad insights about collective memory, nevertheless, are instructive. Our
memories of the Holocaust in the United States have changed dramatically
over the postwar years and "the Holocaust" as a symbol is often deployed in a
wide range of settings. As Eva Hoffman observes, "[a]t each successive stage,
the understanding of that enormous event has been shaped by contemporaneous
values and ideological pressures, and at each point, the symbolism of the Holo-
80
caust has been used in the service of specific causes and interests."

76. See PETER NOVICK, THE HOLOCAUST IN AMERICAN LIFE (1999).

77. Eva Hoffman, The Uses of Hell, N.Y. REV. BOOKS, Mar. 9, 2000, at 19 (reviewing NOVICK,
supra note 76).
78. See NOVICK, supra note 76, at 85.
79. Eva Hoffman notes:
Novick puts the onus for shaping and manipulating Holocaust memory mainly on Jewish
organizations and leaders who.., have been its main inheritors in the US .... [He] wants
to ask whether the "centering" of the Holocaust in American consciousness is good for
anyone, including, and especially, American Jews. He believes it is not. He is openly
dismayed by the current forms and applications of Holocaust memory.
Hoffman, supra note 77, at 19.
80. Id.
1764 47 UCLA LAW REVIEW 1747 (2000)

C. Implications for Justice Strategies

What do these general insights about collective memory mean for people
on the justice frontlines, for people arguing for progressive deployment of civil
and human rights? At bottom, these insights mean that they cannot simply
assume, as many do, a nice two-step dance: first, dig historically to find out
"what really happened," and second, describe how those "facts" show a viola-
tion of established rights norms. That is a narrow, lawyerly approach.
The digging we must do is not only into the documentary archives, but
also into the archives of mind, spirit, and culture-then and now. In digging,
we need to acknowledge that we are not merely retrieving group memories.
We are helping construct them as .we go, within a context of not only rights
norms but also larger societal understandings of injustice and reparation. These
memories are shaped by, and in turn share, daily cultural practices as well as
major events. Collective memories can therefore differ depending on locale,
group experiences, and cultural norms.
The struggle over recognition of competing collective memories is therefore
often a struggle over the supremacy of world views, of colliding ideologies. And
through those struggles we have the potential to remake our, and society's,
understandings of justice-for good or ill.
This means that the group members, lawyers, politicians, justice workers,
and scholars possess often unacknowledged power at the very foundational
stages of every redress movement. The power resides in the potential for
constructing collective memories of injustice as a basis for redress. It also
resides in the potential for shaking (or salving) the psyche of a people. This
also means that collective memory can be put to regressive and well as
progressive use. The Balkans leaders' reconstruction of history, mentioned
earlier, is an example of the former; the Japanese American community's nar-
rative history of the intemment's human suffering, a variegated example of the
latter.
How do these general insights translate into practical strategy? We can
begin by distilling five strategic points for purposes of re-forming civil rights.
1. Justice claims of "right" start with struggles over memory. As a strategic
matter, therefore, if we seek justice by claiming civil or human rights, we must
at the outset critically engage the dynamics of group memory of injustice.
2. Group memory of injustice is characterizedby the active, collective con-
struction of the past. It is "active" because it requires present-day activity; it is
not about simply recalling past events. That memory is "collective," because
it emerges from interactions among people, institutions, media, and other cul-
tural forms. It involves "construction" because those collective memories are
not found, but rather are built and continually altered.
Collective Memory 1765

3. The construction of collective memory implicates power and culture.

Action on justice claims often turns on which memories are acknowledged by
decisionmakers. Collective memory thus is always hotly contested by those
supporting and those opposing justice claims. Indeed, struggles over memory
are often struggles between colliding ideologies, or vastly differing world views.
When outsiders begin to persuasively reconstruct historical injustice they usu-
ally face fierce opposition by those in power. That opposition seeks totally
to discredit the developing memory proffered by outsiders. Or, alternatively, it
seeks to partially transform the old memory (slavery benefited the slaves) into
a new memory (freed slaves could not handle freedom) that justifies continued
hierarchy (segregation)."
4. These contests over historicalmemory regularly take place on the terrain
of culture-of which legal process, and particularlycivil rights adjudication, is one,
but only one, significant aspect. Also significant are media-driven popular cultural
images as well as day-to-day cultural practices (including artistic expressions,
neighborhood meetings, and elder "talk-story" sessions). Who decides deter-
mines which cultural practices, images, and narratives formally frame the
memories. And those memories in turn legitimate future understanding of and
action on justice claims.8"
5. In light of the importance of power and culture, it is never enough for
societal outsiders only to frame the injustice narrowly to satisfy legal norms.
Conversely, it is always importantfor those outsiders to conceive of law and legal
process as contributors to-ratherthan as the essence of-largersocial justice strate-
gies. This means working with legal process and rights claims with dual goals:
to achieve the specific legal result and to contribute to construction of social
memory as a political tool. 3
The claims, litigation, and outcome in the recent Supreme Court case
Rice v. Cayetano84 illuminate several of these strategic points about the battles
over collective memory of injustice and the significance of those struggles to
civil and human rights and justice in the U.S. courts.

81. See Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-
Enforcing State Action, 49 STAN. L. REV. 1111, 1129-31 (1997).
82. See Horn, supra note 22 (calling for the persistent practice is justice in myriad daily, or micro-
social, settings).
83. See Eric K. Yamamoto, PracticallyReframing Rights: Cultural Performance and Judging,33
U.C. DAVIS L. REV. (forthcoming July 2000) (altering judicial perceptions by transforming
through cultural performances the framework for processing "information").
84. 120 S. Ct. 1044 (2000).
1766 47 UCLA LAW REVIEW 1747 (2000)

D. Rice v. Cayetano

In February 2000, the Supreme Court decided a case with far-reaching

effects on civil rights, human rights, and native sovereignty-the most
important Hawaiian rights case. 5 In Rice, the Court agreed with a white
American rancher's racial discrimination claim and invalidated a limitation
by which only Native Hawaiians were allowed to vote for trustees to the state's
Office of Hawaiian Affairs (OHA). s 6 Hawai'i's multiracial populace created
OHA in 1978, recognizing that native Hawaiians share with Native
Americans a "history of subjugation at the hands of colonial forces" and
that a measure of Hawaiian self-governance was needed." Rice puts at risk
not only OHA, but all federal and state programs designed to repair
continuing harms to the Hawaiian people8 resulting from the now acknowl-
edged illegal overthrow of the sovereign nation of Hawai'i in 1893.

E. The Office of Hawaiian Affairs

OHA represents descendants of pre-Western contact Hawaiian people

concerning government control over valuable "ceded lands." 9 Ceded lands
comprise one-third of the entire state of Hawai'i. They are former Hawaiian
government lands and royal lands taken by the United States upon annexa-

85. Who has a stake in this "Hawaiian" case? Certainly the indigenous Hawaiian communities,
particularly those struggling to deal politically and socially with the consequences of U.S. colonialism-
including the Hawaiians' highest rates of poverty, unemployment, incarceration, serious illness, and
homelessness. Also Native Americans, who perceive that conservatives such as Robert Bork and
Abigail Thermstrom supporting plaintiff Freddy Rice are endeavoring to fry even bigger fish, including
all nontribal American Indians who benefit from government programs. And Latinas/os-those
linking contemporary legal strategies concerning immigration, language, citizenship, and political
participation with earlier anticolonial, Chicano self-determination movements in the United States.
And finally, African Americans, Asian Americans, women, gays and lesbians, and the disabled who are
combating America's conservative "retreat from justice" in law and politics. See Eric K. Yamamoto
& Chris Iijima, The Colonizer's Story: The Supreme Court Violates Native Hawaiian Sovereignty-
Again, COLORLINES, Summer 2000 <http://www.arc.org/CLines/CLArchive/story3-2_01.html>.
86. I have provided legal counsel to, and represented in litigation, two current Office of Hawai-
ian Affairs (OHA) trustees.
87. Rice, 120 S.Ct. at 1066 (Stevens, J., dissenting).
88. See, e.g., Native Hawaiian Education Act, Pub. L. No. 103-382, § 9201-9212, 108 Stat.
3518, 3794-805 (1994) (codified at 20 U.S.C. §§ 7901-7912 (1994)) (establishing programs to facilitate
the education of Native Hawaiians); Craston-Gonzales National Affordable Housing Act, Pub. L.No.
101-625, § 958, 104 Stat. 4079, 4422-23 (1990) (providing a preference for Native Hawaiians in Hous-
ing and Urban Development housing assistance programs); Native Hawaiian Health Care Improvement
Act, Pub. L. No. 100-579, 102 Stat. 2916 (1988) (codified as amended at 42 U.S.C. §§ 11701-
11714 (1994)) (creating programs aimed at improving health care for Native Hawaiians).
89. See HAW. CONST. art. XII, H8 5-6 (establishing board of OHA trustees and defining their
powers).
Collective Memory 1767

tion of Hawai'i as a territory following the 1893 overthrow.9" That year,

annexationists sought the help of the U.S. Minister to Hawai'i, who ordered
U.S. Marines and a warship to land in Hawai'i. The invading troops and insur-
rectionists deposed reigning sovereign Lili'uokalani and seized all Hawaiian
government and royal lands.91 Upon statehood in 1959, the United States
turned over to the new state most of the ceded lands to be held in trust par-
tially to benefit "native Hawaiians."92 For over twenty-five years, the state
badly mishandled its land trust obligations to indigenous Hawaiians (or Kanaka
Maoli). 9
Partly in response to the state's mishandling, Hawai'i's diverse peoples
overwhelmingly approved the 1978 state constitutional amendment creating
OHA and its indigenous Hawaiians-only voting structure. OHA, whose assets
from ceded lands revenues now exceed one-half billion dollars, monitors the
state's use of ceded lands and spends millions annually on programs addressing
social, economic, and cultural needs of Kanaka Maoli.94 In addition to these
functions, as the constitutionally designated "receptacle" for government repa-
rations payments, OHA isseen by some Hawaiians as a transitional entity toward
Hawaiian sovereignty." In the past, the state negotiated with OHA to transfer
lands and over 300 million dollars as reparations (and legal settlement) for
the state's past misfeasance-possibly generating land and additional monetary
assets, in the eyes of some, for Kanaka Maoli self-governance."

90. See Melody K. MacKenzie, Historical Background [hereinafter MacKenzie, Historical

Background], in NATIVE HAWAIIAN RIGHTS HANDBOOK, supra note 61, at 3, 12. The 13-member
Committee of Safety, which engineered the coup, formed the Republic of Hawaii in 1893 and claimed
control over the Hawaiian government and royal lands. The Republic ceded those lands to the United
States upon annexation in 1898. See Melody-K. MacKenzie, The Ceded Lands Trust, in NATIVE
HAWAIIAN RIGHTS HANDBOOK, supra note 61, at 26.
91. See MacKenzie, Historical Background, supra note 90, at 12.
92. See Admission Act, Pub. L.No. 86-3, 73 Stat. 4 (1959) (establishing in section 5(f) a public
land trust on "ceded lands" (and the proceeds from those lands) granted or conveyed to the State
of Hawaii by the United States under sections 5(b) and 5(e), and providing that the State of Hawaii
hold the section 5() trust lands for five purposes, one of which is "for the betterment of the condi-
tions of native Hawaiians").
93. See Samuel King et al., Broken Trust, HONOLULU STAR-BULL., Aug. 9, 1997, at Al.
94. See, e.g., 1997 Haw. Sess. Laws 240.
95. See Melody K. MacKenzie, Self-Deternination and Self-Governance, in NATIVE HAWAIIAN
RIGHTS HANDBOOK, supra note 61, at 77, 89. But see ; HE ALO HE ALO/FACE TO FACE:
HAWAIIAN VOICES ON SOVEREIGNTY (1993); Samuel P. King, Hawaiian Sovereignty, HAW. B.J.,
July 1999, at 7, 8 (viewing the OHA as little more than a state agency beholden to prevailing political
powers in the state). Some Hawaiians think the OHA is "dysfunctional." See Kevin Dayton, Cayetano
Says Court's Decision Requires Action, HONOLULU ADVERTISER, Feb. 24, 2000, at Al.
96. See Trustees of the Office of Hawaiian Affairs v. Yamasaki, 737 P.2d 446 (Haw. 1987).
1768 47 UCLA LAW REVIEW 1747 (2000)

F. The Challenge

In 1996, Harold "Freddy" Rice, a Caucasian rancher who traced his fam-
ily's roots in Hawai'i back to the mid-1800s, sued Hawai'i's governor, Ben
Cayetano, to invalidate OHA's indigenous Hawaiians-only voting limitation.
Rice claimed that the limitation was nothing more than a special privilege for
a racial minority, a violation of the Fifteenth and Fourteenth Amendments
of the U.S. Constitution that prohibit racial discrimination.97 His suit, Rice
said, presented an opportunity to end racial strife in the United States.9" Rice's
high profile supporters included Robert Bork and Abigail Themstrom and the
99
conservative Center for Equal Opportunity.
More specifically, Rice argued that "Native Hawaiian" is a racial category
and that OHA's Hawaiian-only voting restriction is subject to invalidation
under the Adarand Constructors, Inc. v. Pena'0 strict scrutiny equal protection
standard of review for racial classifications.' O' Rice also contended that native
Hawaiians could not avail themselves to the Native American exception
from strict scrutiny review, recognized by the Court in Morton v. Mancari,"'
because Hawaiians are not a formally recognized "Indian tribe." 103 In 1974,
Mancari deemed Native American to be a "political" designation (reflecting
a special sovereign-to-quasi-sovereign relationship), rather than a "racial" one,
even though race clearly was integral to the designation. The Court located
federal authority for that special relationship in the Constitution's enumeration
04
of federal power over "Indian tribes.'
The state of Hawai'i, as respondent, OHA, virtually every major Hawai-
ian organization, and the federal government, as amici, countered that the
voting limitation was not a racial restriction in the traditional sense. The state

97. See Rice v. Cayetano, 120 S. Ct. 1044, 1053 (2000). Significantly, Rice did not challenge
that validity of the OHA itself.
98. See Brief for Petitioner, Rice, 120 S. Ct. 1044 (2000) (No. 98-818).
99. See Brief of Amici Curiae Center for Equal Opportunity, New York Civil Rights Coalition,
Carl Cohen and Abigail Thernstrom in Support of Petitioner, Rice (No. 98-818).
100. 515 U.S. 200 (1995).
101. See id. at 235-37.
102. 417 U.S. 535 (1974).
103. See id. at 553-55.
104. See United States v. John, 437 U.S. 634 (1978); Delaware Tribal Bus. Comm. v. Weeks,
430 U.S. 73 (1977). Neither Adarand Constructors, Inc. v. Pena nor the Court's Native American
cases following it held that Adarand overruled Morton v. Mancari. Cf. Stuart Minor Benjamin, Equal
Protection and the Special Relationship: The Case of Native Hawaiians, 106 YALE L.J. 537, 564-65
(1996) (attempting to distinguish these cases). In Rice v. Cayetano, the Ninth Circuit also held
that the OHA's voting limitation did not violate the Fifteenth Amendment because the limitation
was analogous to the voting limitation for special district elections, in which beneficiaries of the
district's programs are the only persons allowed to vote. See Rice v. Cayetano, 146 F.3d 1075,
1080 (9th Cit. 1998), aff g 963 F. Supp. 1547 (D. Haw. 1997), overruled by 120 S. Ct. 1044 (2000).
Collective Memory 1769

honed its arguments tightly around legal doctrinal requirements. Without

clearly connecting those arguments to the larger Hwaiian justice movement, it
asserted narrowly that the United States and native Hawaiians had a "special
relationship" akin to ward-guardian and that, therefore, native Hawaiians, like
Native Americans are "political" rather than "racial" minorities.'O'
In 1997, the federal district court for Hawai'i, '°6 and in 1998, the Ninth
Circuit Court of Appeals, 17 upheld OHA's Hawaiians-only vote. The courts
recognized that, even without formal tribal status, indigenous Hawaiians are
situated analogously to Native Americans. Both are first peoples in the United
States and are the beneficiaries of a special fiduciary relationship with the
government. Therefore, native Hawaiians, like Native Americans, are "politi-
cal" minorities in the United States for purposes of equal protection analysis." 8

105. See Brief for Respondent at 3-4, Rice, 120 S.Ct. 1044 (2000) (No. 98-818). The state's
brief offered a sanitized, passive, historical account:
mhe newcomers asserted or acquired title to the land and displaced the original inhabitants
from their homelands; and there eventually came an acknowledgement on the part of the
new sovereign-the United States-that with the exercise of dominion over a land that
others had once known as theirs came a special obligation to and relationship [guardian-ward]
with those once-sovereign, indigenous people.
Id. OHA framed its argument as follows: "This case thus does not involve racial discrimination, but the
power of Congress and the State of Hawai'i to fashion a limited program for the aboriginal people of
Hawai'i, similar to programs established to benefit aboriginal peoples in other States." Brief of the Office
of Hawaiian Affairs et al. as Amici Curiae Supporting Respondent at 3, Rice, (No. 98-818).
Allowing OHA's beneficiaries-Native Hawaiians-to elect the OHA trustees does
not deny other citizens of Hawaii the right to vote "on account of race." Laws that must
recognize the special status of aboriginal people are not based on race, but the aboriginal
peoples' ownership of land and self-government before Europeans took control of their lands.
Id. at 14. Neither the state's brief nor the OHA's brief explicitly characterized the OHA's creation
as a federal and state response to colonization of Hawai'i by the United States or addressed the OHA's
ancestry requirements as part of a political response to the "colonizer's" standard use of race (particularly
racial inferiority) to help legitimate political conquest. See ALBERT MEMMI, THE COLONIZER AND
THE COLONIZED 23-24 (1965).
The legal briefs also did not address the novel, compelling argument that the U.S. presence in
Hawai'i since 1893 constitutes one national sovereign's "prolonged occupation" of the territory of
another in violation of the international laws of war. That argument is currently before the Permanent
Court of Arbitration in the Hague in Larsen v. Hawaiian Kingdom. See World Court to Hear Claim
to Hawaiian Kingdom, HONOLULU ADVERTISER, Jan. 4, 2000, at A5; see also CHRISTOPHER
GREENWOOD, REVISED REPORT PREPARED FOR THE CENTENNIAL OF THE FIRST INTERNATIONAL
PEACE CONFERENCE (1999) (surveying the "Laws of War").
106. See Rice, 963 F. Supp. 1547.
107. See Rice, 146 F.3d. 1075.
108. Both the district court for the District of Hawaii and the Ninth Circuit also rejected
Rice's Fifteenth Amendment argument. As the Ninth Circuit stated:
If, as we must, we take it as given that lands were properly set aside in trust for native
Hawaiians; that the State properly established an Office of Hawaiian Affairs to [manage
affairs benefiting] exclusively for native Hawaiians and Hawaiians; and that OHA isproperly
governed by a [Hawaiian] board of trustees ... the state may rationally conclude that
Hawaiians, being the group to whom trust obligations run and to whom OHA trustees owe
a duty of loyalty, should be the group to decide who the trustees ought to be. Put another
1770 47 UCLA LAW REVIEW 1747 (2000)

Native Hawaiians, like Native Americans, should be allowed to hold natives-

only elections concerning native interests in government trust programs. Both
courts held, pursuant to Mancari, that the rational basis rather than the strict
scrutiny standard of review applied.

G. The Decision

The Supreme Court reversed. Five justices held that the "race neutrality
command of the Fifteenth Amendment" prevents a state from abridging "the
right to vote on account of race, and [the OHA voting restriction] law does
so."' 9 As developed later, Justice Anthony Kennedy's majority opinion is an
exercise in collective memory construction as the foundation for its prescribed
outcome. The opinion emphasized the dangers of racial categories generally.
Ignoring OHA's reparatory purpose and on-going federal efforts to rectify the
illegal overthrow, the opinion treated OHA's voting limitation as a simple
case of racial discrimination against non-Hawaiians."' Despite legal authority
allowing voting limitations for indigenous peoples,"' and numerous federal stat-
utes specifically describing Hawaiians as indigenous people," 2 the majority
concluded that because OHA was not a quasi-sovereign entity, it was not
entitled to restricted voting. The concurring opinion of Justices Stephen
Breyer and David Souter went further. It argued that "there is no 'trust' for
native Hawaiians here, and ... OHA's electorate, as defined in the statute,
does not sufficiently resemble an Indian tribe.""..3
In dissent, Justices John Paul Stevens and Ruth Bader Ginsburg exco-
riated the majority for its historical myopia:
The Court's holding today rests largely on the repetition of glittering
generalities that have little, if any, application to the compelling history
of the State of Hawai'i. When that history is held up against the mani-
fest purpose of the Fourteenth and Fifteenth Amendments, and against

way, the voting restriction is not primarily racial, but legal or political. Thus ... Rice's
argument fails under both the Fourteenth and Fifteenth Amendments for essentially the
same reasons.
Id. at 1079 (footnote omitted).
109. Rice, 120 S. Ct. at 1059-60.
110. See id. at 1057 ("One of the principal reasons race is treated as a forbidden classification
is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her
own merit and essential qualities.").
111. See, e.g., Brief of the Office of Hawaiian Affairs et al. as Amici Curiae Supporting Respon-
dent at 15-25, Rice, (No. 98-818) (arguing that Native Hawaiians are considered "aboriginal peoples"
under the Constitution and thus Congress has the authority to pass legislation recognizing the special
status of aboriginal peoples).
112. See, e.g., id. at 13.
113. Rice, 120 S. Ct. at 1061 (Breyer, J., concurring).
Collective Memory 1771

two centuries of this Court's federal Indian law, it is clear... that

Hawai'i's election scheme should be upheld.'
Immediately following the decision, Rice's attorney announced his intent
to file new suits under the Fourteenth Amendment to dismantle all federal-
5
and state-supported Hawaiian programs, including OHA."' Adding fuel to the
fire, Governor Cayetano stated that he would forthwith replace the sitting
OHA trustees with political appointees, provoking charges that the state was
attempting to steal OHA's assets." 6 Rice's political supporters on the con-
tinental United States trumpeted the Court's stand against "racial discrimi-
7
nation" -meaning discrimination against whites" Native Americans worried
that the Court encouraged conservatives to attack Congress' authority to deal
8
with Native Americans not formally recognized as tribal members." Hawai-
ian leaders called for civil disobedience (at airports, harbors, and the University
of Hawaii): "If the law abandons you, and what you're fighting for is social '' 9
civil disobedience."
justice, then your only viable option is non-violent

H. The Battle over Collective Memory

The Rice decision itself invalidated only the OHA voting limitation. Its
legal and practical effects, however, extend far across the social justice land-
scape. The immediacy of the reactions to the decision obscured what lay at the
core of the Court's decision: a fierce battle over conflicting histories.
As mentioned, justice struggles through claims of right are, first and
foremost, active, present-day struggles over collective memory. How a com-
munity frames past events and connects them to current conditions often
determines the power of justice claims or of opposition to them. This is cer-
tainly true of the dissonant framing of the "injustice" in Rice. Is OHA simply
about conferring racial privileges, tilting an otherwise level playing field in
favor of indigenous Hawaiians? Or is OHA part of concerted, long-term

114. Id. at 1062 (Stevens, J., dissenting).

115. See Christine Donnelly, Lawyer: Rice's Win Will Mean More Suits, HONOLULU STAR-BULL.,
Feb. 24, 2000, at Al.
116. See Pat Omandam & Richard Borreca, Despite Deal, Cayetano: Civil Protests Over OHA
"Irresponsible," HONOLULU STAR-BULL., Mar. 1, 2000, at A3.
117. See David G. Savage, High Court Strikes Race-Exclusive Voting Privilege, L.A. TIMES,
Feb. 24, 2000, at A14.
118. See David G.Savage, Justices Review Hawai'i Voting Restriction, L.A. TIMES, Oct. 7, 1999,
at A13; see also Linda Greenhouse, Justices Void Hawai'i Setup that Limits a Vote by Race, N.Y. TIMES,
Feb. 24, 2000, at A16.
119. Pat Omandam, Despite Deal, Hawaiians Plan Civil Disobedience, HONOLULU STAR-BULL.,
Mar. 3, 2000, at Al.
 1772 47 UCLA LAw REVIEW 1747 (2000)

state and federal efforts to rectify the ravages of U.S. colonialism, in which
race, economics, and politics played major roles?
The Court majority entered the fray over these conflicting histories.
Yet, the majority cast its historical framing as neutral, as uncontroversial. The
Court was not interpreting history, Justice Kennedy said, simply "recounting"
it.12° Was this the reality? According to, observers, the Court justified its
judgment by recitation of a history so selective and euphemized that the
decision stands on a one-legged edifice, readily exposed to the winds of truth
telling. 2' Or, as Justice Stevens characterized the majority's historical
narrative-"glittering generalities that have little, if any, application to the
compelling history of ... Hawaii."''
How did the majority treat indigenous Hawaiian history? Nowhere did
its opinion mention U.S. colonialism in 1898, in Hawai'i or contemporane-
ously in the Philippines and Puerto Rico. It passively described the coloni-
zation of Hawaiians as "the culture and way of life of a people ... all but
engulfed by a history beyond their control."'23 Nor did the majority acknowl-
edge specifically the destruction of Hawaiian culture through the banning of
Hawaiian language or the current effects of homelands dispossession, including
poverty, poor levels of education and health, and high levels of homelessness
and incarceration. Nor did the main opinion recognize that colonial powers
often used race to legitimate conquest, denigrating in racial terms those
colonized.'24 The opinion even failed to mention whites or Caucasians,
although white racism was central to much of recorded Hawaiian history and
Rice's claim was implicitly one of "reverse discrimination" against whites. In
addition, the majority opinion completely ignored the present-day vibrant,
wide-spread Hawaiian sovereignty and self-determination movement that gave
birth to OHA.'25
Perhaps most astonishing was the majority's dismissive treatment of two
hugely significant facts: First, there was little mention of the extraordinary
Congressional Apology Resolution of 1993 in which the United States
acknowledged explicitly each of the historical facts just recited and committed

120. Rice v. Cayetano, 120 S. Ct. 1044, 1048 (2000).

121. For example, the majority described Rice, as "a Hawaiian in a well-accepted sense of the
term" since he was a "citizen of Hawai'i." Id. at 1047. Practically no one residing in Hawai'i-native
Hawaiians and even non-Hawaiians-would consider Freddy Rice a "Hawaiian." Even the Honolulu
Advertiser, the generally conservative Honolulu daily newspaper, asked in its editorial, "Well-accepted
where? Certainly not in Hawaii." HONOLULU ADVERTISER, July 2, 2000, at A8; see also Yamamoto
& lijima, supra note 85, at 6.
122. Rice, 120 S. Ct. at 1062 (Stevens, J., dissenting).
123. Id. at 1060.
124. See MEMMI, supra note 105, at 23-24.
125. See MacKenzie, supra note 95, at 88.
Collective Memor'v 1773

126
the government to future acts of reconciliation; and second, there was
no mention that OHA and its voting limitation were created by the over-
whelming vote of Hawai'i's multiracial populace partly to rectify the legacies
of U.S. colonialism by affording Hawai'i's indigenous peoples a measure of self-
determination. As Justices Stevens and Ginsburg recognized in dissent, "it
is a painful irony indeed to conclude that native Hawaiians are not entitled
to special benefits designed to restore a measure of native self-governance
because they currently lack any vestigial native government-a possibility
27
of which history and the actions of this Nation have deprived them."'

1. Rice Supremacy

What collective story did the majority tell? Relying selectively on gen-
erally respected historical works written by two non-Hawaiians long before
28
the contemporary Hawaiian sovereignty movement, the Court majority gen-
erated a remarkable narrative reminiscent of the familiar tale of how Western
culture and law, more or less naturally, "civilized" the native savage-this time
in Hawai'i. 9
The majority began by describing how the Hawaiian people found "beauty
and pleasure in their island existence" but how life was not "idyllic" because
there was internecine warfare and that kings "could order the death or sacrifice
3
of any subject.""'3 Moreover, Hawaiians were "polytheistic."'
The majority characterized the nineteenth century missionaries not as
uninvited cultural foreigners but as civilizers who "sought to teach Hawaiians
to abandon religious beliefs and customs that were contrary to Christian
teachings."'32 It blandly described often greedy Western encroachment as a
"story of increasing involvement of westerners in the economic and political

126. The majority opinion also did not acknowledge the federal government's serious efforts
now to reconcile with Hawaiians and to repair the harms from the United States's active participation
in the illegal overthrow. See Joint Resolution to Acknowledge the 100th Anniversary of the January
17, 1893 Overthrow of the Kingdom of Hawaii and to Offer Apology to Native Hawaiians on Behalf
of the United States for the Overthrow of the Kingdom of Hawaii, Pub. L. No. 103-150, 107 Stat.
1510 (1993) (expressing Congress's "commitment to acknowledge the ramifications of the overthrow
of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the
United States and the Native Hawaiian people" and urging the President to support reconciliation
efforts, in sections 1(4) and (5)).
127. Rice, 120 S.Ct. at 1066 (Stevens, J., dissenting).
128. See id. at 1048 (citing L. FUCHS, HAWAII PONO: AN ETHNIC AND POLITICAL HISTORY
(1961), RALPH S. KUYKENDALL, THE HAWAIIAN KINGDOM (1967)).
129. See generally ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL
THOUGHT: THE DISCOURSE OF CONQUEST (1990).
130. Rice, 120 S. Ct. at 1048.
131. Id.
132. Id.
 1774 47 UCLA LAW REVIEW 1747 (2000)

affairs of the Kingdom." ' It also described the 1848 Mahele, which precipi-
tated massive foreign private land ownership, and which most Native Hawai-
ians regard as a disaster, simply as a "fundamental and historic division" of land
after which land "ownership became concentrated.' 34
The majority also identified Western disease "no doubt" as the source
of the "despair, disenchantment, and despondency" of the descendants of the
early Hawaiian people.135 It failed, however, also to connect despondency and
despair to the loss of national sovereignty, the confiscation of homelands, and
the denigration of native culture. Perhaps for this reason, the majority over-
looked the significance of the stinging 1897 protest of native Hawaiians who
signed a Petition to Congress condemning the impending U.S. annexation of
Hawai'i. 36
The Rice majority also engaged in striking historical remembering when
it characterized "[tiensions" between an "anti-Western, pro-native bloc" and
"Western business interests and property owners."'37 Turning historical events
upside-down, the Court intimated that the overthrow was justified by Queen
Lili'uokalani's undemocratic actions. Her attempt to restore "monarchical
control.., and limitO the franchise to Hawaiian subjects' 38 compelled
prodemocracy Americans to seize control. 9 In fact, Lili'uokalani was reacting
to white businessmen's imposition of a "bayonet constitution" in 1887, under
which native voters were largely excluded by property voting requirements,
and whites and foreigners achieved grossly disproportionate political power.
Finally, the majority alluded to the "Chinese, Portuguese, Japanese, and
Filipino" migrations to Hawai'i and how these immigrants faced, and over-
came, discrimination. ' 4 One implicit message: The immigrant groups picked
themselves up by their bootstraps, why haven't the Hawaiians? A second and

133. Id.
134. Id. at 1049. But see LILIKALA KAME'ELEHIWA, NATIVE LAND AND FOREIGN DESIRES:
How SHALL WE LIVE IN HARMONY? (1992).
135. Rice, 120 S. Ct. at 1051.
136. See MacKenzie, supra note 95, at 79.
137. Rice, 120 S. Ct. at 1050.
138. Id.
139. See id. The majority recited in passive voice that the Hawaiian government was "replaced"
by a provisional government and for reasons unexplained, the Queen (who was in fact imprisoned)
"could not resume her former place" despite President Grover Cleveland's displeasure with
the "actions
of the American Minister." Id. Indeed, President Cleveland authorized an investigation and declared
the overthrow illegal and called for the United States to restore the Hawaiian monarchy. See FOREIGN
RELATIONS OFTHE UNITED STATES 1894: AFFAIRS IN HAWAII 458 (1895) (also known as the "Blount
Report"). President Cleveland, however, left office before restoration of the monarchy and was
replaced by pro-annexationist President William McKinley.
140. See Rice, 120 S. Ct. at 1051. The majority failed to mention, however, the crucial dif-
ferences between people made American involuntarily through colonization and those who chose U.S.
citizenship via immigration.
Collective Memory 1775

even more troubling message: Why, when naming Hawai'i's "immigrants," did
the majority cite communities of color but omit white Americans, and why
did the majority fail to mention the deep history of white racism integral to the
dismantling of the Hawaiian nation? Are these omissions because the majority
did not see white American missionaries and businessmen as foreign settlers
but rather as natural heirs of Hawai'i?
What emerges from the Court's selective, often euphemistic, historical
framing is a simple story of racial discrimination against Freddy Rice. Hawai-
ians had a rough go of it, as did immigrant groups, but the playing field now
is pretty much leveled. According to the majority's construction of Hawai'i's
history, because there are no effects of U.S. colonization, "privileges" for
Hawaiians are not only undemocratic, they are illegal.
This, of course, is not the story Native Hawaiians tell. Generally
speaking, those supporting OHA say that race was one factor, but only one
factor, in the larger political reparations process that created OHA. Race had
to be a factor in the political response to the effects of colonization because
the colonizing process itself deployed race to help justify the overthrow and
annexation despite vehement opposition by almost all native Hawaiians.'
More specifically, the Kanaka Maoli, through entities like OHA, are not
seeking privileges or handouts. Nor are they seeking racial preferences. Rather,
they are asserting international human rights-not simply the right to be equal
but the right to self-determination; not a right to monetary entitlements but to
reparation; not a right to special treatment but to reconnect spiritually with
land and culture; not a right to fuller participation in the U.S. polity but some
form of governmental sovereignty.
The Court in Rice ignored this native Hawaiian narrative and employed
the antidiscrimination rhetoric of civil rights to defeat indigenous Hawaiian

141. See MEMMI, supra note 105, at 23-34 (describing the way that colonizers use race to legiti-
mate colonial conquest and control over people, land, and institutions); see also Eric K. Yamamoto
et al., Courts and the Cultural Performance: Native Hawaiians' Uncertain Federaland State Law Rights
to Sue, 16 U. HAW. L. REV. 1 (1994). The racialized nature of the colonization process is captured in
the statement by a U.S. Senator arguing for the U.S. annexation of Hawai'i in 1894.
Side by side on their islands were two civilizations, higher and a lower civilization. On the
side of the higher civilization were ranged the intelligence, the progress, the thrift, the aspi-
rations for enlarged liberty and for the legalization of a great destiny for Hawai'i. On the
other side was ranged the monarchy, with its narrow, contracted view of human rights,
with its semibarbarous face turned toward the past, unwilling to greet the dawning
sun.... From the very nature of things these two civilizations could not exist together
forever. One was to survive and the other would have to perish.
Id. at 23-24. The clear import of this statement is that colonization is legitimated because of racial
inferiority: The "semi-barbarous face" of Hawaiians, "turned to the past, unwilling to greet the dawn
sun," would "have to perish." Id. Contrast this racialized imagery supporting annexation with the
petition of Native Hawaiians protesting to Congress the impending annexation of Hawai'i. See
MacKenzie, supra note 95, at 79.
 1776 47 UCLA LAW REVIEW 1747 (2000)

claims, just as supporters of California's recent Civil Rights Initiative deployed

the rhetoric of equality to dismantle affirmative action.142 At bottom, then, the
Court appears to have made not one but two key choices in framing collective
memory: the first, between sharply dissonant versions of history; the second,
and underlying the first, between colliding ideologies, or desired world views.
That latter ideological choice pitted public acknowledgement of the United
States' role as colonial power and the damage wrought against erasure of that
role from public consciousness. In Rice, the majority chose erasure.
What is so troubling about the majority's ideological historicism-in
addition to concrete consequences-is that it reflects a familiar pattern.
Journalist Edwin M. Yoder warns of America's recent "amnesia" about slavery
in attempting to justify, or at least live with, racial inequity while proclaiming
a commitment to equality.
It is well to remember all this rather recent history when we are tempted
to preen ourselves on the American record of justice, and when we feel
an urge to preach on the subject of basic human rights to those else-
where who still sit in darkness. It is among our great American
susceptibilities to cherish our myths of exceptionalism and special virtue.
When the history fails to fit the myths, we bend the history."'
Historian Michael Kammen similarly observes the distortion of U.S.
memories: "[T]he combination of loyalty and stability under the oldest written
national constitution the world has, indeed, been impressive. But stability
is achieved at a price: a tendency to depoliticize the civic past by distorting
the nation's memories of it-all in the name of national unity. '"44
In closing this part we must ask whether the Court in Rice depoliticized
the civic past by distorting the nation's memories all in the name (rather than
substance) of national unity. Did it draw on conservative historical accounts
and construct a twisted memory, now inscribed in law, that comports with Jus-
tice Scalia's asserted belief that "we are just one race here. It is American?"'45
Down the road, if Rice and his national political supporters succeed in
legally dismantling native programs, the national polity will accrue huge practi-
cal and psychic costs. The United States professes fealty to both domestic civil

142. See CAL. CONST. art. I, § 31 (added by Proposition 209, the "California Civil Rights
Initiative," passed Nov. 5, 1996); see also Washington v. Davis, 426 U.S. 229, 246 (1976) (holding
that a racially neutral qualification for employment-in this case, "Test 21"-was not racially
discriminatory nor denied equal protection of the laws because a greater proportion of African
American applicants failed to qualify than any other racial or ethnic groups).
143. EDWIN M. YODER, THE HISTORICAL PRESENT: USES AND ABUSES OFTHE PAST 56 (1997).
144. MICHAEL KAMMEN, IN THE PAST LANE: HISTORICAL PERSPECTIVES ON AMERICAN
CULTURE (1997).
145. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring).
Collective Memory 1777

rights and international human rights. It expresses a commitment to justice

and, when injustice occurs, reparation.
Rice and the collective memory it legitimates distort progressive civil
rights and erase human rights. They twist a history of white racial dominance
into a justification for present-day equality for Freddy Rice. They subvert human
rights principles of self-determination and cultural development and the foun-
dational principle of democracy itself by invalidating multiracial commitments
to native Hawaiian self-governance. Equally important, by narrowly framing
history to legitimate its decision, the Supreme Court generated precedent for
forthcoming cases that undermines the principle of justice through reparation."'
"A way of seeing is a way of not seeing. A way of remembering is a way of
forgetting, too."147
'

Thus, understanding the political and cultural dynamics and strategic

import of collective memory for justice claims processed through the U.S.
legal system is an integral part, though only one part, of the larger project of
re-forming civil rights in uncivil times. Another significant part of that
project, also implicated in Rice, is grappling with the complex intersection
of international human rights and domestic civil rights. The following part
critiques key aspects of that intersection and looks back to the experience
of the CRC for insights about theoretical and practical strategies for schol-
ars and activists.

IV. INTERNATIONALIZING U.S. CIVIL RIGHTS: HISTORICAL

INSIGHTS AND CURRENT CHALLENGES (SHARON K. HOM)

Over the past fifty years, human rights discourse has emerged as the
imaginative engine and moral language of international public law reconfigu-
rations. To tell this story-in the beginning-but where to mark the "begin-
ning"? Despite what is in fact a long history of justice concerns for protection
of the weak against oppression dating back thousands of years and across dif-
ferent civilizations and religious traditions, the history of modem international
human rights law is commonly traced to international response to the atroci-
ties committed by the Nazi's genocidal extermination of millions of Jews, gyp-
sies, homosexuals, and political dissidents during World War II. The Universal
Declaration of Human Rights (UDHR), adopted by the General Assembly
in 1948, sets forth a comprehensive array of civil, political, economic, social,
and cultural rights, including the prohibition of slavery, inhuman treatment,
arbitrary arrest, and broad nondiscrimination provisions protecting the rights

146. See YAMAMOTO, supra note 30, at 172.

147. Burke, supra note 75, at 98.
1778 47 UCLA LAW REVIEW 1747 (2000)

and freedoms enumerated "without distinction of any kind, such as race, col-
our, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.""'4 Upon the occasion of the fiftieth year of the
UDHR, numerous publications, reports, and special websites reviewed the prog-
ress made in protecting human rights throughout the world.
Through the proliferation, development, and expansion of a panoply of
rights aimed at protection of groups such as women, children, refugees, and
indigenous peoples, and the intersection of these developments with environ-
mental and sustainable development movements, the international human
rights regime that has evolved faces the ever more complex challenges of build-
ing a more socially just and peaceful world. Through human rights norm build-
ing, and the proliferation of multilateral and international implementation
mechanisms, international public law state and nonstate obligations have been
established, contested and negotiated.'49 At the same time, the regime of
international human rights norms, multiple actors, institutions, and legal cul-
ture(s), are being negotiated across increasingly permeable and interrelated 150
spatial and human geographies. Although "globalization" is not really new,
the current phenomenon is marked by new markets of more than $1.5 trillion
exchanged daily, new tools of technology (the internet, cellular phones, and
media networks), and new actors including regional and global trade organiza-
tions and NGOs, and new rules on trade, services, and intellectual property.
The current world trading system, the General Agreement on Trade
and Tariffs/World Trade Organization (GATT/WTO), is premised on accep-
tance of liberal economic assumptions about the "problem" facing the
system-how to maximize aggregate economic welfare-as well as about the
"solution"-restraining government interference in markets. The objective of
the GATT/WTO system is the liberalization of trade to pursue the benefits
of comparative advantage (in other words, each country specializing) through
the elimination of trade restrictions to permit markets to function free of state
interference.' Together with the international human rights system, this trad-
ing system is shaping not only the kind of world we live in, but also the kind
of world we can imagine or aspire to work for in the future. Given the very
different premises and values served by the trade regime-such as economic

148. G.A. Res. 217A(III), U.N. Doc. A/810, art. 2 (1948).

149. However, the body of "international" public law that has emerged (including human rights
law) is,upon closer examination, still culturally situated and negotiated, emanating from specific geogra-
phies. Rooted in mercantilist, Christian, and European origins, "international" human rights are not
international. Furthermore, in the face of naked political power, international relations realists argue
human rights do not constitute "law" at all, or as some positivists argue, human rights are not judicially
enforceable rights.
150. See MALCOM WATERS, GLOBALIZATION (1995).
151. See Jeffery L. Dunoff, The Death of the Trade Regime, 10 EUR. J. INT'L L. (forthcoming 2000)
Collective Memory 1779

efficiency or aggregate wealth maximization-and those values central to

the human rights regime-including human individual and collective well-
being, security (beyond the absence of war), dignity, fairness, and equity-the
relationship between these two global regimes, trade and human rights, is
deeply controversial, contested, and ideological. The players in this ongoing
drama (or tragedy, depending upon your point of view) include governments,
multilateral institutions, transnational and domestic corporations, industry lob-
bying groups, labor unions, environmental groups, human rights groups, policy
think tanks, and the media.'52
These twentieth-century reconfigurations and the legacy of a worldview
that continues to be dominated by state-centric assumptions present difficult
questions and obstacles for the full realization of human rights and social
justice. This part first briefly references two current-though not necessarily
recognized as equally legitimate nor authoritative-strategic cross moves: the
use of domestic law to implement international human rights, and the use of
international human rights to pursue domestic rights claims-that is, the
domestication of international law and the internationalization of domestic
law. It then examines the history and strategies of the CRC, a civil rights
organization active from 1946 to 1956, and its petition to the United Nations
charging the United States with genocide,153 as an example of a radical framing
of a social justice claim, and suggests some theoretical and strategic insights
and lessons for current U.S. civil rights efforts to invoke international human
rights.

A. International Moves

U.S. civil rights scholars, lawyers, and activists are increasingly looking
toward international human rights instruments as persuasive sources for legal
strategies to address a broad range of advocacy issues presented by persistent
social and economic discrimination against disadvantaged groups or minori-
ties, homelessness and poverty, 55 the relentless march of death penalty

152. For discussion of the linkages and tensions between the trade and human rights regimes
and a critical look at the trade "rules," see Hom, supra note 31.
153. See CIVIL RIGHTS CONGRESS, WE CHARGE GENOCIDE: THE HISTORIC PETITION TO
THE UNITED NATIONS FOR RELIEF FROM A CRIME OF THE UNITED STATES GOVERNMENT
AGAINST THE NEGRO PEOPLE (William L. Patterson ed., International Publishers Co. 1970)
(1951).
154. See, e.g., Elizabeth M. Iglesias, International Law, Human Rights, and LatCrit Theory, 28
U. MIAMI INTER-AM. L. REV. 177 (1997); Natsu Taylor Saito, Beyond Civil Rights: Considering
"Third Generation" International Human Rights Law in the United States, 28 U. MIAMI INTER-AM. L.
REV. 387 (1997).
155. See, e.g., Marc-Olivier Herman, Fighting Homelessness: Can International Human Rights
Make a Difference?, 2 GEO. J. ON FIGHTING POVERTY 59 (1994); Glen St. Louis, Thinking
1780 47 UCLA LAW REVIEW 1747 (2000)

executions,"6 and the plight of immigrants and refugees. 15 7 A number of critical

U.S. scholars and activists are also increasingly looking toward international
human rights law as a resource for the development of broader domestic
antisubordination strategies and for responses to conservative legal, ideological,
and political attacks on domestic affirmative action programs and goals.'
Even Justice Ginsburg has recently suggested there are firm supports for
affirmative action in the UDHR and in a number of international conventions
such as the 1979 Convention on the Elimination of All Forms of Discrimi-
nation Against Women and the 1965 International Convention on the Elimi-
nation of All Forms of Racial Discrimination. 59
With its abysmal record of ratification of international treaties, the
United States has finally ratified the International Covenant on Civil and
Political Rights (ICCPR),'60 the Convention Against Torture and other Cruel,
Inhuman, or Degrading Treatment or Punishment (Torture Convention),' 6'
the International Convention on the Elimination of All Forms of Racial

Globally, Acting Locally: Using International Norms for Interpretative Application, INT'L DIMENSIONS,
Fall 1996, at 17.
156. See, e.g., James H. Wyman, Comment, Vengeance is Whose?: The Death Penalty and
CulturalRelativism in InternationalLaw, 6 J. TRANSNAT'L L. & POL'Y 543 (1997).
157. See, e.g., Barbara MacGrady, Note, Resort to International Human Rights Law in
Challenging Conditions in U.S. Immigration Detention Centers, 23 BROOK. J. INT'L L. 271 (1997);
Paul Meehan, Note, Combatting Restrictionson Immigrant Access to Public Benefits: A Human Rights
Perspective, 11 GEO. IMMIGR. L.J. 389 (1997).
158. See, e.g., F. Deale, Affirmative Action and Human Rights, 6 INT'L POL'Y REV. 76 (1997);
Iglesias, supra note 154; Jordan J. Paust, Race-Based Affirmative Action and International Law, 18
MICH. J. INT'L L. 659 (1997); Saito, supra note 154; Dorothy Q. Thomas, Advancing Rights
Protection in the United States: An Internationalized Advocacy Strategy, 9 HARV. HUM. RTS. J. 15
(1996).
159. See Ruth Bader Ginsburg & Deborah Jones Merritt, Affirmative Action: An International
Human Rights Dialogue, 21 CARDOZO L. REV. 253 (1999).
160. The International Covenant on Civil and Political Rights (ICCPR) was entered into
force for the United States on Sept. 8, 1992. See U.S. DEP'T OF STATE, TREATIES IN FORCE: A
LIST OF TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES IN
FORCE ON JANUARY 1, 1999, at 389 (1999). The ICCPR sets forth provisions ensuring the rights
of self-determination, legal redress, equality; life, liberty; freedom of movement; fair, public, and
speedy trial of criminal charges, privacy; freedom of expression (including trade union rights);
family; and participation in public affairs. It forbids torture; cruel, inhuman or degrading
treatment; slavery; arbitrary arrest; double jeopardy; and imprisonment for debt.
161. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (Torture Convention) was entered into force for the United States on Nov. 20,
1994. See id.at 466. The International Covenant on Economic, Social, and Cultural Rights (ICESCR)
provides for a number of rights that are directly related to rights set forth in the ICCPR, including
conditions safeguarding fundamental political and economic freedoms to the individual, conditions of
work such as fair pay, equal pay for work of equal value, safe and healthy working conditions, and
the right to form and join trade unions.
Collective Memory 1781

Discrimination (CERD),' 62 and the Convention on the Prevention and Pun-

ishment of the Crime of Genocide (Genocide Convention). The United
States has signed"6 but has not ratified, the International Covenant on Eco-
nomic, Social and Cultural Rights (ICESCR) in light of ideological and politi-
cal opposition to the economic social and cultural rights as rights. Although
the United States signed the Committee on the Elimination of Discrimination
Against Women in 1980,165 it still has yet to ratify this treaty that most com-
prehensively protects fundamental gender-based rights.
In light of these recent developments of U.S. ratification of some key
human rights treaties, these domestic "global" moves as it were, suggest that
international human rights may be further sources for supporting and expand-
ing the limited domestic discourses and strategies for protection of civil rights
and advancement of social justice goals. These domestic calls for the inter-
nationalization of domestic civil rights strategies also implicate doctrinal analy-
ses of litigation-based approaches for implementation of international human
rights in domestic courts, and national efforts to limit the domestic impact
of international law via treaty reservations or arguments based upon the non-
self-executing character of treaties or treaty provisions.' 66 At the same time, a
number of commentators have suggested that domestic laws, for example
immigration and asylum law, may be sources for developing more effective
enforcement strategies for protection of international human and women's
rights. 67
"'

While I support and encourage these strategic efforts to draw upon mul-
tiple legal regimes, especially upon international human rights law as valuable
interventions, at the same time, a more critical assessment of both the domes-
tic and international regimes would contribute to increasing the effectiveness
of these global and local moves. For example, as Justice Ginsburg has pointed
out, U.S. courts have not been that receptive to looking beyond our own
shores: The Supreme Court has mentioned the UDHR just five times, and

162. The International Convention on the Elimination of All Forms of Racial Discrimination
(CERD) was entered into force for the United States on Nov. 20, 1994. See id. at 444.
163. The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide
Convention) was entered into force for the United States on Feb. 23, 1989. See id. at 385.
164. See Philip Alston, The Committee on Economic, Social and Cultural Rights, in THE UNITED
NATIONS AND HUMAN RIGHTS: A CRITICAL APPRAISAL 473, 482 (Philip Alston ed., 1992)
[hereinafter THE UNITED NATIONS AND HUMAN RIGHTS].
165. See Roberta Jacobson, The Committee on the Elimination of Discrimination Against Women,
in THE UNITED NATIONS AND HUMAN RIGHTS, supra note 164, at 444, 445.
166. See Paust, supra note 158, at 662-64, 671-74.
167. See William J. Aceves & Paul L. Hoffman, Using Immigration Law to Protect Human Rights:
A Legislative Proposal,20 MICH. J. INT'L L. 657, 682-91 (1999); Susannah Smiley, Comment, Taking
the "Force" out of Enforcement: Giving Effect to International Human Rights Law Using Domestic Immi-
gration Law, 29 CAL. W. INT'L L.J. 339 (1999).
1782 47 UCLA LAW REVIEW 1747 (2000)

only twice in a majority decision, with the most recent citation appearing
twenty-eight years ago, in a dissenting opinion by Justice Thurgood Marshall.'68
As we develop strategic efforts that draw upon multiple legal regimes, especially
upon international human rights law as valuable interventions, I want to argue
for more nuanced and critical approaches and argue that there are also impor-
tant insights from the earlier efforts in the late 1940s into the 1950s to deploy
international strategies.
There are at least several aspects of a more critical approach to the
development of international human rights strategies for domestic U.S. civil
rights struggles-critically examining the role of ideology, the doctrinal obsta-
cles in the substantive provisions of various international human rights treaties
and instruments, the role of multiple state and nonstate actors, and the struc-
tural obstacles and discursive challenges. Reflecting a clear ideological posi-
tion, the United States for example, despite initial leadership in post-World
War II human rights drafting efforts, has strongly rejected economic, cultural,
and social rights as "real" rights. During the Reagan Administration, 1986
State Department Instructions to Embassies regarding the preparation of coun-
try reports stated that "so-called 'economic and social rights are not included
in our understanding of "internationally recognized rights." 169
The failure of the United States to ratify the ICESCR has been attrib-
utable to this historic hostility in the United States to economic, social, and
cultural rights as legal rights as well as to the "lack of consensus within the
United States as to the desirability, or philosophical and political acceptability,
of the domestic recognition of [these] rights."'' 0 Reflecting freedom of the indi-
vidual rhetoric, a U.S. representative told the Third Committee of the United
Nations General Assembly, in November 1988, that "responsible adults select
their own careers, obtain their own housing, and arrange for their own medical
care." Other strands in the U.S. government's policy arguments against the
notion of economic, social, and cultural rights as rights is the argument that
these rights should be dealt with by qualified experts such as economists,
housing experts, and health care providers, rather than injected into discussions

168. See Ginsburg & Merritt, supra note 159.

169. The Reagan years marked yet another shift in this trajectory. Again, the U.S. human rights
policy was based upon "the unqualified rejection of economic, social and cultural 'rights' as rights"
in part as an element of larger cold war strategies. Philip Alston, U.S. Ratification of the Covenant
on Economic, Social and Cultural Rights: The Need for an Entirely New Strategy, 84 AM. J. INT'L L.
365, 372 (1990). A highpoint of this movement was a speech by a State Department official seeking
to dispel a number of "myths" regarding human rights, the first of which was that 'economic and
social rights' constitute human rights." Id. at 374 (quoting Paula Dobriansky, Deputy Assistant Sec-
retary for Human Rights and Humanitarian Affairs, address Before the American Council of Young
Political Leaders, Washington, D.C. (June 3, 1988), reprinted in DEPT. STATE, BUREAU OF PUBLIC
AFFAIRS, CURRENT POL'Y, No. 1091, 1988, at 2).
170. Id.
Collective Memory 1783

on the limits and obligations of government. Another strand focuses on the

issue as an East versus West, but as Philip Alston points out this is really a
debate about the United States versus the rest of the world.'
This ideological hostility to economic, social, and cultural rights presents
political, legal, and ideological difficulties for domestic economic justice projects
looking toward international human rights as support.7 7 Despite counterrheto-
ric urging the holistic indivisibility of rights by the international community,
asserted distinctions between civil and political rights and economic, social, and
cultural rights continue to underlie the political rhetoric of countries defending
their human rights record. Distinctions between civil and political rights and
economic, social, and cultural rights are also reflected in the mandates, priori-
ties, and strategies of dominant international NGOs and domestic human rights
NGOs.
Under both the ICCPR and ICECSR, each State Party, a country that
has signed onto the documents, undertakes to respect and ensure to all indi-
viduals within its territory and subject to its jurisdiction the rights recognized
in the Covenant "without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, prop-
erty, birth, or other status." Rooted in political and ideological historical
disagreements between the socialist countries and the Western industrialized
countries, these two treaties laid the foundation for ongoing tensions between
these two generations of rights. Yet, the Vienna Declaration and Programme
of Action, the consensus document that emerged from the 1993 United
Nations World Conference on Human Rights held in Vienna, Austria, under-
scores a holistic notion of rights. It73states that "[a]ll human rights are universal,
indivisible and interdependent.'1
There are several ways in which this hierarchy of rights is understood,
defended, or contested. Within this hierarchical "generations of rights" frame-
work, a common conceptual and implementation distinction is made between
negative human rights obligations that prohibit state action that violates

171. See id. at 374-76.

172. For an historical analysis of economic rights and an argument for more effective inter-
national and national protections for the economic rights of the poor, see Frank Deale, The Unhappy
History of Economic Rights Provisions in the United States And Prospectsfor Creationand Renewal, 43 How.
L.J. (forthcoming 2000). Beginning with a broad historical summary of state welfare regimes dating
back to the Colonial era of the United States, and the role of economic rights in the framing of the
Constitution, Professor Frank Deale catalogues the ways in which U.S. and international law fail
to adequately recognize and enforce the economic rights of the poor. He suggests more effective
exploration of international and state strategies that draw on local legislative and constitutional
mechanisms.
173. United Nations World Conference on Hunan Rights: Vienna Declarationand Programme of
Action, U.N. GAOR, 48th Sess., pt. 3, 9 5, U.N. Doc. A/C.157/24 (Part I) (1993), reprinted in 32 I.L.M.
1661, 1665 (1993).
1784 47 UCLA LAW REVIEW 1747 (2000)

specified rights, and positive obligations that require states to take affirmative
steps and enact measures to ensure or protect specified rights. For example, the
ICESCR Article 2(1) provides that each State Party undertakes to take steps,
individually and through international assistance and cooperation, especially
economic and technical, to the maximum of its available resources, with a view
to achieving progressively the full realization of the rights recognized in the
present Covenant by all appropriate means, including particularly the adoption
of legislative measures. The ICESCR Article 2(3) provides that developing
countries "with due regard to human rights and their national economy,
may determine to what extent they would guarantee the economic rights
recognized in the present Covenant to non-nationals.' 74 Unlike the ICCPR,
the ICESCR appears to allow for progressive implementation, thus reflecting
an ongoing prioritization in implementation obligations on the part of States
Parties. However, whether the "progressive implementation" provision is
understood as setting forth legal obligations or aspirational goals has been
problematic and raises geopolitical, policy, and conceptual issues.
Another way the asserted differences between civil and political rights
and economic, social, and cultural rights are mapped, are along an individual
and collective divide, or along an East/West fault line. 75 ' For example, the

People's Republic of China asserts a prioritization of social-economic rights

over civil-political rights based upon the importance of collective rights. Yet,
as Xiaorong Li argues, the assertion of collectivity does not justify the priority
assigned to social-economic rights. Furthermore, the assertion of collectivity
actually masks the interest of a small political elite. "As China undergoes rapid
economic and social change, anyone, rich or poor, big or small, can find their
'individual rights' sacrificed for the 'collective interest' as interpreted by the
government."" 17 Xiaorong argues against this bifurcation of rights and
duties, and suggests that they are inextricably bound, that is, social-economic

174. International Covenant on Economic, Social, and Cultural Rights, Jan. 3, 1976, 993
U.N.T.S. 3.
175. 1 have argued that the predominantly statist assumptions and focus of the universalist/relativist
debates is incomplete, problematic, and ignores a whole range of civil society actors. I have also sug-
gested more nuanced and problematized attention to the contexts of human rights articulation and
implementation such as culture and language, but not as an intervention captured by current (and
in my view impoverished) debate about universalism and cultural relativism. See Sharon K. Hom,
Commentary: Re-positioning Human Rights Discourse on "Asian" Perspectives, 3 BUFF. J. INT'L L. 209,
251-76 (1996). At the same time, a statist emphasis also satisfies nationalist ideologies of ruling
groups in developing countries and is acceptable to transnationals who prefer to play national gov-
ernments off each other rather than be subjected to global regulation. See Sol Picciotto, International
Business and Global Development, in LAW AND CRISIS IN THE THIRD WORLD (S. Adelman & A.
Paliwala, eds., 1993).
176. Xiaorong Li, Are Social and Economic Rights "Collective"?, CHINA RTS. F., Winter 1997-
1998, at 8,10 (1997).
Collective Memory 1785

wellbeing-an adequate standard of living, including jobs, education and

health care are human goods for their own sake and form the necessary
conditions for enjoying the actual value of political-civil rights. Because both
set of rights have a collective aspect as well as a negative and positive
aspect, in order to implement these rights, governments must take positive
action and recognize that violations of both can occur as a result of its omission
as well as commission.
However, a distinction should be made between normative arguments
for the indivisibility and holistic nature of these rights and strategic advocacy
approaches for monitoring, enforcing, and implementing the various rights.
For example, human rights tools of fact-finding, investigation, public reports
and exposure of abuses, and advocacy campaigns for the release of prisoners of
conscience, have been effective for addressing violations of civil and political
rights in many parts of the world. But the realization of economic, social, and
cultural rights presents another layer of complexity in terms of measurement,
time frames and accountability. The development by the UNDP of an index
for measuring human development is one example of this kind of necessary
conceptual rethinking along with its methodological and programmatic
implications.177
As an example of structural issues, as numerous critiques have also pointed
out, the existing international human rights regime, particularly as located
within the United Nations, suffers from ineffectiveness and institutional, pro-
cedural, and political weaknesses shaped by economic and geopolitical self-
interests of nation-states and major economic actors such as multinationals
(MNCs) and transnationals (TNCs). As the major multilateral organization
that has responsibility for peace, security, and human rights protection, the
United Nations has promulgated and adopted hundreds of multilateral treaties
that address a diverse range of areas that have an impact on the lives of ordi-
nary individuals, including treaties on human rights, health, food, education,
pollution, transportation, and television.'78 Article 1 of the United Nations
Charter includes among the purposes of the United Nations the promotion
and encouragement of respect for human rights. Articles 55 and 56 of the

177. Beginning in 1990, the United Nations Development Programme (UNDP) introduced
an annual Human Development Report ranking all countries according to their "level of human devel-
opment" by a human development index (HDI). The HDI has four components: productivity, equity,
sustainability, and empowerment of people. The HDI measures the average achievement of a country
in basic human capabilities. The HDI indicates whether people lead a long and healthy life, are edu-
cated and knowledgeable, and enjoy a decent standard of living. See UNITED NATIONS DEV. PRO-
GRAMME, HUMAN DEVELOPMENT REPORT, U.N. Sales No. E.99.111.B (1996).
178. Oscar Schachter, The UN Legal Order: An Overview, in THE UNITED NATIONS AND
INTERNATIONAL LAW 3, 4 (C.C. Joyner ed., 1997).
1786 47 UCLA LAW REVIEW 1747 (2000)

United Nations Charter establish the primary human rights obligations of the
United Nations member states. Article 55 states:
[T]he United Nations shall promote higher standards of living, full
employment, and conditions of economic and social progress and
development; solutions of international economic, social, health, and
related problems; and international cultural and educational co-
operation; and universal respect for, observance of human rights and
fundamental freedoms 179
for all without distinction as to race, sex,
language, or religion.
In Article 56, all members pledge to "take joint and separate action" to
fulfill the purposes set forth in Article 55.1 s° Through a structure of charter-
based and treaty-based human rights and special ad hoc mechanisms (such
as special rapporteurs and thematic working groups),"' the United Nations has
also developed an extensive system (some critics would say an unmanageable
bureaucracy) for monitoring, investigating, adjudicating, and interpreting
human rights norms, state practices, and country conditions. The international
human rights regime that has emerged consists of "those international norms,
processes, and institutional arrangements, as well as the activities of domestic
and international pressure groups, that are directly related to promoting respect
for human rights." 182
Four recent reports have studied and assessed the agenda, performance,
and role of the United Nations as well as its future prospects. These include
Boutros Boutros-Ghali's An Agenda for Peace,"s3 Gareth Evan's Cooperationfor
Peace,' 4 the Commission on Global Governance's Our Global Neighborhood,'85
and the Report of the Independent Working Group on the Future of the
United Nations funded by the Ford Foundation, The United Nations in Its Second
Half-Century.'86 All four reports share a belief in multilateralism to replace cold

179. U.N. Charter art. 55.

180. Id. art. 56.
181. For example, in response to advocacy and lobbying from NGOs, a Special Rapporteur on
Violence Against Women, Its Causes and Consequences was appointed in March 1994. The Special
Rapporteur, Radhika Coomaraswamy was given a three-fold mandate: to collect information; to make
recommendations at national, regional, and international levels; and to work closely with other special
rapporteurs. Her preliminary issued in 1994 focused on three areas of concern: the family (including
domestic violence, traditional practices, and infanticide); the community; and the state (women in
detention, refugee women, and women in situations of armed conflict).
182. Philip Alston, Critical Appraisal of the U.N. Human Rights Regime, inTHE UNITED NATIONS
AND HUMAN RIGHTS, supra note 164, at 1, 1.
183. BOUTROS BOUTROS-GHALI, AN AGENDA FOR PEACE (1992).
184. GARETH EVAN, COOPERATION FOR PEACE (1993).
185. COMMISSION ON GLOBAL GOVERNANCE, OUR GLOBAL NEIGHBORHOOD (1995).
186. INDEPENDENT WORKING GROUP ON THE FUTURE OF THE UN, THE UNITED NATIONS
IN ITS SECOND HALF-CENTURY: A REPORT OF THE INDEPENDENT WORKING GROUP ON THE
FUTURE OF THE UNITED NATIONS (1995).
Collective Memory 1787

war protections and advocate strengthening the role of the United Nations
in security politics, waxing "eloquent about the transformational possibilities
for global politics and about the role of the UN as the prospective global
deliverer."'87 All four reports emphasize the importance of human rights as
an issue of domestic and international governance, and view human rights
as a matter of principle and as an issue of peace and security. Those involved
in the preparation of these reports are self-described liberals, holding beliefs
in progress and modernization, and unabashedly promoting the spread of
democracy, making the linkages between democracy and legitimacy, peace
and security. Boutros-Ghali states: "There is an obvious connection between
democratic practices-such as the rule of law and transparency in decision
making-and the achievement of true peace and security in any new and stable
political order."'88
Underlying the policy debates are very real constraints of resources and
the willingness of member states to fund the operations of the United Nations.
One 1991 report pointed out that
[no other [institution] in the world has [1851 governments as governors;
is required to work in six official languages and to employ citizens of
166 nationalities; and is charged with responsibilities for virtually every
facet of the human and planetary condition. To do all this it is provided
with less funds per year than Western children spend at Christmas,
and fewer staff than the civil service of a medium-size European city.t89
Or to use a U.S. comparison, "the entire staff of the UN system, worldwide of
all grades, to serve the nearly 6 billion people in 185 countries in every field
of human endeavor and need, numbers less than the civil servants in the state
of Wyoming-population, half a million."' 9 These facts are often ignored
or discounted in U.S. political debates about its billions of back dues obliga-
tions to the United Nations.
In addition to these debates and assessments of institutional mandates and
priorities, the United Nations (and international law more generally) has also
been subject to the critiques about its representatives and transparency.' 9 ' For
example, there have been numerous critiques of the small numbers of women
at the higher echelons of decision-making power within the United Nations

187. Michael N. Barnett, Bringing in the New World Order: Liberalism, Legitimacy, and the United
Nations, 49 WORLD POL. 526, 527 (1997).
188. Id. at 536 (quoting BOUTROS-GHALI, supra note 183).
189. Brian Urquhart & Erskine Childers, Towards a More Effective United Nations, in 1991 DEV.
DIALOGUE 1, 5.
190. Erskine Childers, The United Nations and Global Institutions: Discourse and Reality, 3 GLOBAL
GOVERNANCE 269, 273 (1997).
191. See Hilary Charlesworth et al., Feminist Approaches to InternationalLaw, 85 AM. J. INT'L L.
613 (1991).
1788 47 UCLA LAW REVIEW 1747 (2000)

system itself and its integration of gender concerns. At the same time, the
future of an effective and representative United Nations depends upon its
ability to reflects in its own staffing, programs, and policy decisions the goals
of equality, nondiscrimination, and equity embodied in the treaties, decla-
rations, and formal and ad hoc human rights mechanisms. At the same time,
there has always been a tension between the multilateral role of the United
Nations as representative of sovereign states and its role as representative of
peoples and individuals with universal rights that deserve the protection of the
international community. How can the United Nations maintain a legitimate
position to monitor the discriminatory practices and human rights records of
member states if its own practices reflect a gender-based discrimination or an
unequal distribution of power weighted toward the United States and a few
industrialized western countries?
Yet, despite the numerous problems facing the United Nations, it cannot
simply be written off as a male club dominated by the industrialized countries
of the north. The United Nations has responded to critiques from within and
without, and any critical assessment needs to take into account the different
factors that effect institutional change. For example, in a study of gender main-
streaming, several factors were identified as influential in the institutionalization
of gender concerns.'92 These included external pressure by NGOs, governments,
and donor governments, the effective use of indirect mechanisms, the gender
staffing levels, and a fit between organization mandate, ideology, and proce-
dures. The response of an agency to external pressure is affected by its
accountability and governance structure. In the World Bank in which voting
is weighted to economic strength, it is more responsive to the largest donors.
The ILO's tripartite governance structure of NGO representatives, employer
organizations, and trade unions, makes it the most broadly accountable of the
specialized United Nations agencies. Although the report recognizes that there
is no evidence that women in decision-making positions are more likely to
act in women's interests, the case studies of UNDP, ILO, and the World Bank
reveal that the majority of advocates for women in development, have been
women. These studies have also identified a fit between organizational mandate,
ideology and procedures, and women in development (WID)/gender concerns.
Each of the agencies studied has a different mandate that was more or less
receptive to the integration of gender into its programs. The World Bank's man-
date is to facilitate economic growth and efficiency; and the ILO's mandate is to
promote social justice. UNDP's unclear mandate left room for elaboration, for
example, the sustainable human development mandate "provides a fertile envi-

192. See S. RAZAVI & C. MILLER, GENDER MAINSTREAMING: A STUDY OF EFFORTS BY THE
UNDP, THE WORLD BANK AND THE ILO TO INSTITUTIONALIZE GENDER ISSUES (1995).
Collective Memory 1789

ronment for the promotion of WID/gender concerns."'93 This more nuanced

analysis of agencies and specialized bodies of the United Nations suggests the
importance of strategic analysis of institutional structures, cultures, and values
as the basis for developing possibilities for activist intervention.
However, because these conventions are implemented primarily through
a self-reporting system monitored by the relevant monitoring body, there is a
built-in tension between the self-interest of states and the demands of an open,
accountable human rights regime. The implementation of these treaties and
nondiscrimination provisions is also hampered by what is essentially an anach-
ronistic consent-based regime.'94 A cynical observer might note that this
multilateral self-monitoring consent-based system is not only anachronistic
in its enshrinement of state sovereignty, but also is essentially a "fox guarding
the hen house" system. The tensions and abuses are apparent if one recalls the
horrendous human rights violations perpetuated by military regimes in Haiti,
Argentina, Guatemala, and on and on. Yet, as the major multilateral organiza-
tion with a human rights mandate, the United Nations continues to grapple
with questions about its own legitimacy, efficiency, and demands for structural
reform from within and without.
However, I am not suggesting that we adopt a self-defeating realpolitik
cynicism about the existing international human rights system. Instead, as the
history of the modern human rights movement has so powerfully demon-
strated, individuals, NGOs, states, and multilateral organizations have made
progress toward incorporating fairness, social justice, peace, sustainability,
equity, and equality concerns and goals into substantive norms, procedures, and
implementation mechanisms across a range of areas.9 In order for more
effective human rights implementation strategies to be developed, mainstream
international human rights NGOs must also radically rethink their approaches
and ideological investments. For example, Makau wa Matua points out the

193. Id. at 6.
194. One example of the limits of this multilateral consent-based system is the unilateral res-
ervation power of states and the record of qualified ratification of international treaties. For example,
as of March 27, 1997, one hundred states have ratified the ICECSR without qualifications and forty
with qualifications. Eighty-seven states have ratified the ICCPR without qualifications and fifty-two
with qualifications. One hundred fourteen states have ratified Committee on the Elimination of Dis-
crimination Against Women without qualifications and forty- four with qualifications. Ideologically,
this system of unilateral state reservations qualifying international "obligations" also reflects the power
and the limits of its underlying contract metaphor and privileging of state sovereignty.
195. See Michael H. Posner & Candy Whittome, The Status of Human Rights NGOs, 25 COLUM.
HUM. RTS. L. REV. 269 (1994); Wendy Schoener, Non-governmental Organizations and Global Activism:
Legal and Informal Approaches, 4 IND. J. GLOBAL LEGAL STUD. 537 (1997); Steiner, supra note 40. For
a fuller historical account of the proliferation and expanding roles of international NGOs, see CON-
STRUCTING WORLD CULTURE: INTERNATIONAL NON-GOVERNMENTAL ORGANIZATIONS SINCE
1875 (John Boli & George M. Thomas eds., 1999).
1790 47 UCLA LAW REVIEW 17-47 (2000)

ideological alignment of international NGOs with traditional Western civil

rights organizations such as the ACLU, the conventional doctrinal reliance on
positive law, and stress on civil and political rights despite the mantra of the
indivisibility, interrelatedness, and interconnectedness of all human rights.
Mutua argues for NGOs to end "their stance of nonpartisan advocacy of
benign universality," and to reexamine
196
their relationships with powerful
Western states and institutions.
Although NGOs are in a state of flux and there is "no single inspiration
or aspiration, neither a spiritual nor secular authority ... for all within it,
no pope and no central committee,"'97 there are also important differences
that have emerged and are reflected in criticisms by Third World NOOs of
First World NGOs. First World NGOs reference their geographical bases, and
typify certain kinds of mandates, functions, and ideological orientations. These
include the assumptions of traditional western liberal values and the emphasis
on basic civil-political rights; the focus on governmental abuses rather than
socioeconomic and other factors that underlie them; and self-characterization19
of legality. 8
of as apolitical monitors, objective investigators, and defenders
In contrast, Third World NGOs tend to stress the importance of eco-social
rights, and some argue for transformative social goals. Speaking a different
"language" to describe the character of the human rights movement and the
explanations for these violations, these Third World NGOs often describe the
underlying human rights problems as based in inequitable North-South rela-
tions and point to the need to address the structures of political and economic
power and ideologies leading to violations. Finally, Third World NGOs
emphasize the community as a site for developing solutions to human rights
problems. 99
These ideological differences and the North-South tensions and disagree-
ments regarding the consequences of economic restructuring imposed by multi-
lateral lending agencies have an impact on international efforts to build
alliances across national, cultural, political, and religious differences. What
I do mean by proposing an NGO perspective from which to think about pur-
poses of the categorization problem is to suggest that whatever the differences,
there are or can be NGO stances that are distinct from and in opposition to the
geopolitical power plays of national governments and intergovernmental
organizations. Yet, it is very difficult to resist the centrifugal pull of the formal
and state-centric processes and text-centered strategies. In addition to the

196. Makau wa Mutua, INGOs as Political Actors, Proceedings of the 93rd Annual Meeting,
ASIL, Washington, D.C. (March 24-27, 1999), at 210-11; see also Steiner, supra note 40.
197. Steiner, supra note 40.
198. See id.
199. See id.
Collective Memory 1791

attention to the role of NGOs within the United Nations system, the focus
advocated by Third World NGOs on community as a source of empowerment
strategies and a context for individual rights is an important perspective to
help develop these stances.
This strategic rethinking must also include multiple simultaneous
approaches to addressing powerful transnational corporate actors °° (the new
"masters of the universe")-actors that are now largely unaccountable to any
government or international body for the consequences of their greed and
impoverishing economics. 0' As massive concentrations of capital and eco-
nomic power, multinational and transnational corporations contribute to the
inequalities between the countries of the North and the South, and the impov-
erishment of many local economies and ways of life through short-term profit
maximizing investment and exploitation of resources. Masao Miyoshi argues
that we are in a period of intensified colonialism as "TNCs rationalize and
execute the objectives of colonialism with greater efficiency and rationalism,"
and unlike the imperial invaders, TNCs are welcomed." 2 Impelled by their
profit seeking, self-concerned, "though aggressively extroverted in cross-border
movement," TNCs are not agents for progress. Rather they have no concern
for the general welfare, as they contribute to environmental destruction and
exploitation of workers with inadequate pay and care. As the effective global
campaign against the draft of the Multilateral Agreement on Investment, the
recent mass mobilizations that included teach-ins, civil disobedience, and pro-
tests in Seattle during the WTO Ministerial in 1999, and the World Bank
meeting in Washington in April 2000 all underscore, it is clear that grassroots
organizations, trade unions, human rights, development, and environmental
NGOs have and will continue to be important counterforces.
In assessing the realistic spread of voluntary corporate socially responsible
citizenship in the world, it is clear that global regulation will be powerfully
resisted. In the face of this corporate exploitation of life itself, and the per-
sistent inequity, violence, and inequality that marks the world, the problem-
atics of justice as goal, aspiration, and method must engage more than theoretical
inquiry. As the 1999 UNDP Human Development Report, entitled Globaliza-
tion with a Human Face, °3 underscores, inequalities between countries and within
countries are increasing, and globalization, while not new, is creating new

200. See WOMEN'S ENV'T & DEV. ORG., CODES OF CONDUCT FOR TRANSNATIONAL
CORPORATIONS: STRATEGIES TOWARD DEMOCRATIC GLOBAL GOVERNANCE (1995).
201. See generally DAVID C. KORTEN, WHEN CORPORATIONS RULE THE WORLD (1995).
202. Masao Miyoshi, A Borderless World? From Colonialism to Transnationalismand the Decline
of the Nation-State, in GLOBAL/LOCAL: CULTURAL PRODUCTION AND THE TRANSNATIONAL
IMAGINARY 78, 96 (Rob Wilson & Wimal Dissanayake eds., 1996).
203. UNITED NATIONS DEV. PROGRAMME, supra note 12.
1792 47 UCLA LAW REVIEW 1747 (2000)

opportunities for human advancement, but is also creating new threats to

human security and peace.
For progressive scholars and activists concerned about questions of intel-
lectual accountability and constituency, it is clear that ideas do not necessarily
have to be relegated to abstract ivory tower debates or the limited terrain of
academia. In fact, the powerful and dangerous partnership between U.S.
conservative think tanks, foundations, and academic research institutions
demonstrates that scholarship can indeed create the rhetoric, discourse, and
justification for policy and programmatic initiatives. 4 At the same time,
empirical evidence suggests that critical progressive scholarship can also shift
the dominant discourse, contribute to the development of new norms, and
reshape the material allocation of resources. For example, over the past decade
in the international arena, the concept of development that was once the code
word for economic development was expanded by the demands and visions of
sustainable and human development. Through the work of legal scholars,
women's rights activists, and international and domestic NGOs, the pervasive
violence against women throughout the world is now recognized in interna-
tional documents as a human rights violation.2"5
What is also needed is a discourse of responsibilities in addition to a
discourse of rights that inclusively embraces distributive justice principles
on individual, group, state, and global levels. A discourse of responsibilities
would position each of us as moral agents within a community of mutual obli-
gations and include actors that are marginalized by a statist focus on rights. A
discourse of responsibilities also shifts the debates regarding compensatory
justice claims and the obligations for realizing a fair and equitable allocation
of resources and community power to a more inclusive nonpolar model. A
discourse of responsibilities also has foundations in international and regional
human rights documents." 6

204. See generally JEAN STEFANCIc & RICHARD DELGADO, No MERCY: How CONSERVATIVE
THINK TANKS AND FOUNDATIONS CHANGED AMERICA'S SOCIAL AGENDA (1996).
205. See generally CHARLOTTE BUNCH & NIAMH REILLY, DEMANDING ACCOUNTABILITY:
THE GLOBAL CAMPAIGN AND VIENNA TRIBUNAL FOR WOMEN'S HUMAN RIGHTS (1994);
WITHOUT RESERVATION: THE BEIJING TRIBUNAL ON ACCOUNTABILITY FOR WOMEN'S HUMAN
RIGHTS (Niamh Reilly ed., 1996).
206. Article 28 of the Universal Declaration of Human Rights (UDHR) also states that
"[elveryone is entitled to a social and international order in which the rights and freedoms set forth
in this Declaration can be fully realized." In addition to these rights, the UDHR also suggest that
everyone has "duties to the community in which alone the free and full development of his personality
is possible." G.A. Res. 217A(III), supra note 148, at art. 29. As the prerequisite to rights, the American
Declaration of the Rights and Duties of Man sets forth individual duties including the duty to vote,
to get an education, work, hold office, render civil and military service, and even to honor your parents.
American Declaration of the Rights and Duties of Man, May 2, 1948, arts. 29-38, reprinted in
INTERNATIONAL HUMAN RIGHTS INSTRUMENTS 430.8-430.9 (Richard B. Lillich ed., 2d ed. 1990).
Collective Memnory 1793

I have argued elsewhere for a more inclusive and generative micro-ethico-

political project, which theorizes and acts upon frameworks problematizing
the institutional contexts and personal relationships that engage our lives. By
ethico-political, I refer to the conjuncture between moral philosophy and
power, an awareness of potential moral conflicts, the exercise of human agency
to make moral judgments, and the taking of political responsibility for the
consequences of these choices. I suggest the exploration of a reconstructive
agenda, "trafficking justice," in which the daily choices we make as human
agents in a variety of institutional contexts and social spheres-work, educa-
tion, family, and politics-are concrete, site specific opportunities for "doing
justice" in the here and now."'

B. How I Found/Lost My Way in the 1950s Enroute to the Twentieth Century

Against the different and related trajectories of the development of civil

rights and international human rights discourse and practice in the United
States, leaders of domestic civil rights and liberation struggles recognized early
that the domestic United States struggles were and are tied to international
struggles for social justice. For example, the National Association for the
Advancement of Colored People's (NAACP's) petition in 1947 to the United
Nations denouncing race discrimination, the Petition by the CRC in 1951
charging the United States with genocide against the "Negro People,"2"8 and
Malcolm X's call in 1965 to internationalize the domestic racial problem
are all historical examples of the recognition of the intersection of domestic
and international strategies.0 9 In the limited space of this Article, I want to focus
on the CRC and its Genocide Petition to the United Nations, as an example
of a complex multipronged strategy that included legal, discursive, grassroots
organizing, and media aspects played out on a domestic and an international
arena.
The publication of Gerald Home's seminal work in 1988, The Communist
Front? The Civil Rights Congress: 1946-19 5 6 ,1 retrieved and reconstructed the
submerged history of this powerful movement, an interracial, domestic, and
international civil and human rights movement that was so far ahead of its
times-times of government persecution of suspected "enemies," red-baiting,
and anti-Communist hysteria.21' The question mark in the book title signals

207. See Hom, supra note 22.

208. See CIVIL RIGHTS CONGRESS, supra note 153.
209. See Don T. Nakanishi, Minorities and InternationalPolitics, in COUNTERPOINT: PERSPECTIVES
ON ASIAN AMERICA 81-85 (Emma Gee ed., 1976); Thomas, supra note 158, at 18.
210. HORNE, supra note 35.
211. See, e.g., MICHAEL BARSON, "BETTER DEAD THAN RED!": A NOSTALGIC LOOK AT THE
GOLDEN YEARS OF RUSSIAPHOBIA, RED-BAITING, AND OTHER COMMIE MADNESS (1992); CEDRIC
1794 47 UCLA LAW REVIEW 1747 (2000)

Home's goal to address the errors, omissions, and tendencies of historians to

adopt the loose talk about "fronts" and Hoover's red-baiting approach when
referencing the CRC's work and its role in U.S. civil rights struggles. Indeed,
the CRC was called a "Communist Front" by the House Un-American Com-
mittee and Roger Baldwin of the ACLU; and the "most successful Commie
hoax of all time" by top "commie hunter" of the now New York World Tele-
gram."' In light of the red-baiting politics and reign of terror that silenced
and hounded individuals and destroyed "suspected" communist organizations,
the organizing success of the CRC is even more impressive. As Home puts
it, "[t]hese were indeed bleak times, particularly for reds pressing the rights of
Blacks."213
'

Formed in 1946, from a merger of the National Negro Congress (that

formed the heart of the new CRC), the International Labor Defense (that
bequeathed many of its mass mobilization strategies to the new CRC), and the
National Federation for Constitutional Liberties, the CRC focused on black
equality, labor rights, and civil liberties. At its founding meeting, the 372 dele-
gates presented speeches and papers on a wide range of concerns and issues,
including the poll tax, peonage, police terror, Jim Crow, Japanese American
indemnification, and Puerto Rican independence.2 " The leadership team for
the CRC consisted of three brilliant lawyers, Aubrey Grossman (with labor
movement expertise), Ralph Powe (a son of a sharecropper, a Tuskeegee
Graduate who worked with George Washington Carver, and a Howard Law
School graduate who coordinated the legal work), and William Lorenzo
Patterson (a grandson of a slave, who worked his way through University of
California, Hastings School of Law, formed the heart of the CRC, and who
became its secretary in 1948). As an interracial organization, with bilingual
publications, an organizational commitment to promote women in the leader-
ship network, the linking of mass civil rights strategies (boycotts, petitions,
demonstrations), grassroots organizing, carefully developed legal strategies, and
cultural strategies (CRC picnics, songs, plays, concerts, rallies, and parties),215
the work of the CRC presents critical insights even today for civil rights
and international human rights work, especially in these times of political
retrenchment and conservative backlash. Before the mega-rock benefit concerts
of the eighties and nineties," 6 the CRC was reaching out to and was supported

BELFRAGE, THE AMERICAN INQUISITION 1945-1960 (1973); ELLEN W. SCHRECKER, No IVORY

TOWER: MCCARTHYISM AND THE UNIVERSITIES (1986).
212. HORNE, supra note 35, at 13.
213. Id.at 21.
214. See id.
215. See id.
216. See Reebee Garofalo, UnderstandingMega-Events: If We Are the World, Then How Do We
Change It?, in TECHNOCULTURE 247, 253 (Constance Penley & Andrew Ross eds., 1991).
Collective Memory 1795

by prominent performers and artists, such as Paul Robeson (also trained as a

lawyer)," 7 Howard Fast, and Paulette Childress.
When we pose the larger project reconstructive questions-how do we
reenvision in practical terms the kind of personal and group transformation
that, (1) fires imaginations and actions of broad constituencies for peaceably
breaking down entrenched social and economic barriers that impoverish many
peoples' daily lives, and (2) fosters the building of enduring relationships and
the healing of conflicts among diverse groups and communities-this retrieved
history of the CRC suggests powerful practical precedents.
For its sheer eloquence of language, cogency, and brilliance of its analysis
and application of international law, its herculean mashalling of the massive
evidence, and its radical framing of the justice claim in the indictment, the
CRC's 1951 petition to the United Nations, "We Charge Genocide, 2 8 should
be required reading for all human rights lawyers, students, and scholars. Pre-
sented in the form of a powerful opening statement, the law, the indictment,
followed by the evidence, a summary, and the prayer for relief, the 1951
Genocide Petition was the First National appeal to an international body
based upon international law, the Genocide Convention. Unlike the earlier
petitions drafted by W.E.B. DuBois for the NAACP and the National Negro
Congress that sought redress for grievances suffered by blacks, the CRC
Genocide Petition "made a specific charge against the criminal, racist policies
of the U.S. Government and the destructive impact this had on national
integrity as well as its effect on world peace.""' 9 The petitioners identified
themselves as patriotic Americans and world citizens, and included Dr.
W.E.B. DuBois, Paul Robeson, Paul Robeson, Jr., Howard Fast, Jessica
Mitford, Rosalie McGee, the wife of Willie McGee who was legally lynched
in Jackson, Mississippi,20 Bessie Mitchell, the sister of one of the framed

217. As William L. Patterson powerfully summarizes:

Paul Robeson graduated from Rutgers, and then Columbia Law School in 1923. He was an
extraordinary athlete, a performer with a baritone voice of great beauty, and was brilliant.
His path led him to the privileged oak paneled Wall Street offices. Yet, "Paul's grasp of the
situation was extraordinary. The cream of the racists offered him a place in their world. If
he took it, he would have to play their game. He saw the role assigned him and rejected it."
WILLIAM L. PATTERSON, THE MAN WHO CRIED GENOCIDE: AN AUTOBIOGRAPHY 67 (1971); see
also PAUL ROBESON & LLOYD L. BROWN, HERE I STAND (1988).
218. CIVIL RIGHTS CONGRESS, supra note 153.
219. PATTERSON, supra note 217, at 175.
220. Willie McGee, a 36 year-old black veteran, father of four children, was a truck driver in
Laurel, Mississippi. Troy Hawkins, white, claimed she was raped by a man with "kinky hair." McGee
was arrested and held incommunicado for 32 days until he signed a confession that he later retracted.
The all-white jury in the first trial found him guilty after two minutes of deliberating, while a lynch
mob waited outside. The Civil Rights Congress (CRC) defended McGee through several trials,
organized worldwide protests and extensive media campaigns, and held mass protests in 1950 in Jackson,
demanding a new trial and a stay of execution. The Supreme Court issued three stays of execution
1796 47 UCLA LAW REVIEW 1747 (2000)

Trenton Six,22' and numerous other writers, artists, black leaders, journalists,
and clergy.
As Gerald Home describes, this 240 page document "hit the Cold War
world like a thunder clap-and that was certainly the intention. 222 The
Genocide Petition sold 5000 copies its first week, with 35,000 copies sold in
the first six months, and ultimately 45,000 copies sold in the United States,223
with the total sold abroad far exceeding that amount.224 With incredibly
organized and effective marketing techniques-calendars that focused on
the Genocide Petition with pictures of youths lynched, fold-outs for promoting
the book, plays and songs written for the book, and special rates set up ($1.10
per copy for up to 100 copies, 90 cents for over 100 copies), the book was sold
at union meetings, house parties, and book fairs. Copies were sent to Charles
Fielding of Yale, Supreme Court Justices William Douglas and William
Frankfurter, and virtually all third world governments.
Citing Article II of the Genocide Convention, the petition sets out the
definition of genocide as the intent to destroy, in whole or part, a national,
ethnic, racial, or religious group through acts such as: killing members of the
group, causing serious bodily or mental harm, the deliberate inflicting on the
group conditions of life calculated to bring about its physical destruction in
whole or part, imposing measures intended to prevent births within the group,
and forcibly transferring children of the group to another group.

but refused to dismiss or review the case despite new evidence that Hawkins had forced McGee to
have sexual relations with her for years by threatening to accuse him of rape. In March 1951, McGee
was put to death in the electric chair. See PATTERSON, supra note 217, at 157-58.
221. On January 27, 1948, a second-hand merchandise dealer and his wife were attacked in their
store. The dealer died and the wife and another witness described the three men who had come
into the store as white, or light-skinned blacks. Of the six men picked up, only one was light-skinned
and he had one arm, which was not mentioned by any of the witnesses. The six men, Collis English,
McKinley Forest, John MacKenzie, Horace Wilson, Ralph Cooper, and James Thorpe (the Trenton
Six), were tried by an all-white jury in fifty-five days. See HORNE, supra note 35, at 131; PATTERSON,
supra note 217, at 168 (reporting a forty-eight day trial). The six men were given the death penalty.
The CRC entered the case in August 1948, and threw all its resources into the defense and publicizing
the case. See PATTERSON, supra note 217, at 168. The CRC marshalled tremendous support for the
Trenton Six, including international media attention, U.S. and international trade unions, the Elks,
students and faculty of area colleges, including City College of New York, Rutgers, and.Columbia. See
HORNE, supra note 35, at 147-54. The case featured an "extraordinary attempt to bar the CRC lawyers
from the defense team, fierce squabbling with the NAACP and the ACLU, and an attempt to turn
the defendants against CRC." HORNE, supra note 35, at 131. Like McGee, the Trenton Six had
the support of tireless female relatives, including Bessie Mitchell, the sister of English. Ralph Cooper,
serving a life sentence, pleaded "no defense" and was freed in 1953 in exchange for placing the others
in the store. It was not until February 24, 1955 that four of the six were acquitted during a second
trial. English, the last to be released, and suffering from heart attacks and the stress of the trials, died
before the start of the third trial.
222. HORNE, supra note 35, at 167.
223. See id. at 169.
224. See PATTERSON, supra note 217, at 207.
Collective Memory 1797

Article III makes the acts of genocide, conspiracy to commit genocide,

direct and public incitement to commit genocide, attempt to commit genocide,
and complicity in genocide punishable."5
The crimes of the United States alleged in the Petition included con-
spiracy to genocide, as demonstrated by evidence of the suffering and deaths
of 10,000 blacks and the ways they were uniformly segregated, despoiled,
impoverished and denied equal protection as result of deliberate, all-pervasive
policy of the government and those who controlled it, including the federal
government, the Supreme Court, Congress, the Executive branch and all levels
of government. The Genocide Petition charged the emasculation of democ-
racy through this reign of terror, killings, and pervasive use of white supremacist
language, phrases, and talk.
The evidence and the harms included collection of evidence during
the period of 1945-1951, documenting an egregious and pervasive pattern
of harms that included lynchings, executions, mutilations, rapes, and discrimi-
nation. Each event, act, attack, murder, was carefully documented with dates,
names, and details. The acts that constituted killing members of the group
included shootings or death for failure to say "sir," to tip their hats, or to move
aside quickly enough, for "looking at a house suspiciously," resisting arrest,
complaining to a restaurant of being short-changed, for trumped up allegations
of rape, for being suspected of being armed, refusing to work without boots in
a snake-infested swamp, trying to vote, voting, asking for back pay, trade union
organizing, asking for a beer, or for sitting in a white section of a restaurant.
Other race murders included incendiary chemicals sprayed on a house in a
"white" neighborhood, being refused admittance to emergency rooms after
serious accidents, and dying with blood still on their faces while being trans-
ported three hours to a segregated hospital.2"6
As incitement to Genocide, Governor Herman Talmadge of the State
of Georgia is quoted from his radio call to action on October 22, 1949 to
defend segregation: "We will fight them in the counties and the cities ....We
intend to fight hand to hand with all our weapons, and we will never submit
one inch of encroachment on our traditional pattern of segregation." 27 ' And

Senator Allen J. Ellender of Louisiana told the Senate: "The more freedom
and the more privilege a Negro is given, the more he will abuse that
privilege. He will run wild and do violence to the society in which he
moves."22'8 As examples of Klan terror, Reverend Harrison told the Atlanta
Klan on November 1, 1948 that it was "no sin to kill a n-r for a n-r is no

225. See CIVIL RIGHTS CONGRESS, supra note 153, at 32.

226. See id. at 10-15.
227. Id. at 16.
228. Id.
 1798 47 UCLA LAW REVIEW 1747 (2000)

more than a dog., 229 And the President of United Sons of Dixie (that operated
as wartime front for Klan) chillingly stated: "We want 15,000,000 members
in the U.S., and every one of them with a good gun and plenty of ammuni-
tion. Eventually we must eliminate the Negroes from this country."'23 The
population of blacks in the United States at that time was fifteen million-
a call for one armed Klansman to "eliminate" each black. The Genocide
Petition documents killings by the police, gangs, and the Klan and a shift
from the "traditional" method of lynching to "the policeman's bullet," by
which blacks were beaten to death on chain gangs, back rooms of sheriffs
offices, country jails, police stations, and in the streets, and framed and mur-
dered by sham legal forms and a racist legal bureaucracy."'
To support its allegation of the crime of economic genocide, "deliberately
inflicting on the group conditions of life calculated to bring about its destruc-
tion in whole or in part," the Genocide Petition cited numerous incidents
and patterns of blacks being last hired, first fired, forced into city ghettos or
rural equivalents, deprived of health care, decent housing via legal segregation,
and suffering humiliation and persecution from birth to death. 232
The Genocide Petition argued that the object of all these acts of genocide
was the perpetuation of economic and political power by the few through the
destruction of political protest of the many; its method was to demoralize and
divide an entire nation; its evidence was the increase in profits and the unchal-
lenged control by a reactionary clique. In its prayer for relief, the Genocide
Petition called upon the General Assembly of the United Nations to find and
declare the guilt of the government of the United States for crimes of genocide
against the Negro people and to further demand that the U.S. government
stop and prevent the crime of genocide. The Genocide Petition also requested
condemnation of the United States for its failure to implement and observe its
international obligations under the United Nations Charter and the Genocide
Convention, and called upon the competent organs of the United Nations to
take action. Finally, the petition also requested that the question of the appli-
cability of the Genocide Convention be submitted to the International Court
of Justice."'
How did such a remarkable document come about? After analyzing the
United Nations Conventions, and building upon the CRC legal and political
work, Patterson and the CRC felt the time was ripe to bring the black struggle

229. Id. at 17.

230. Id.
231. Id. at 8.
232. Id. at 5.
233. See id.at 5, 23-24.
234. See id.at 196-97.
Collective Memory 1799

to another dimension-to the world stage, and connected to broader peace

and freedom struggles. In line with the CRC's organizational approaches,
Patterson and his drafting group polled trade unionists, educators, and promi-
nent liberals for reactions. Letters were sent out to select list of prominent
men and women at leading law schools inquiring if they believed that the
Genocide Convention would apply to the situation of blacks in the United
States. The replies fell out along a color fault-line. The majority of the blacks
polled supported the invocation of the Genocide Convention, a majority of
the white liberals did not agree, and some charged that only a Communist
could think of making such a charge. Without exception, the law faculty ada-
mantly opposed the idea as an attack that would impeach the integrity of the
nation. Even the "father" of the convention, Professor Lemkin, argued vehe-
mently that the convention bore no relationship to the U.S. government or its
treatment of blacks. Patterson writes: "This was only one instance of what
racism was doing to the minds and morality of America's men of law and
science. Obviously, no effective support for our petition was to come from that
direction. '
In December 1951, Patterson delivered the Genocide Petition to the
United Nations General Assembly in Paris, and Paul Robeson delivered it
simultaneously to the United Nations Secretariat in New York (as Robeson
had by then had his passport confiscated by the U.S. government). Widely
reported in the international press, the delivery of the petition generated a
great deal of attention and international embarrassment for the U.S. gov-
ernment that was positioning itself as the leader of the free world in the
aftermath of World War II. Professor Lemkin and others branded both
Patterson and Robeson as "un-American" elements serving a foreign power.236
The black members of the U.S. delegation, including Ralph Bunche, and the
Chairman of the NAACP, Dr. Channing Tobias, were similarly negative."'
Eleanor Roosevelt, quoted in an Amsterdam News interview on January 12,
1952, pointed to the efforts made to improve the health of blacks, and added
"[tihe charge of genocide against the colored238 people in America is ridiculous
in terms of the United Nations definition.,
However, Patterson and his drafting group had no illusions about the
role of the United Nations and clearly recognized the limits of that body in
effecting fundamental change in the behavior or laws of the member states.
Instead, the strategy was to take center stage and announce "to the world
audience that until the flagrant injustices of racism had been beaten, no quarter

235. PATTERSON, supra note 217, at 179.

236. See id. at 191.
237. See id. at 188-92.
238. Id. at 206.
1800 47 UCLA LAW REVIEW 1747 (2000)

of the globe could be safe for those seeking freedom and the enjoyment of
life's bounty."239
' That
is, the petition made the radical link between domestic
and international analyses, when it argued that genocide at home leads to
fascism and imperialism abroad; it connected the jellied gasoline in Korea
with lynchers' faggots for burning, and the lyncher and the use of the atom
bomb (American statesmen referred to the colored peoples of Asia as "asiatic
hordes").240
Like the dehumanization of blacks, the language and characterization
of nonwhites as "hordes" or "infestations" permitted their eradication. Citing
the role of media in espousing and inciting genocide, the Genocide Petition
quoted the San Francisco Argonaut in 1900: "We do not want the Filipinos.
We want the Philippines. The Islands are enormously rich, but, unfortunately
they are infested by Philipinos. There are many millions there and it is feared
their extinction will be slow."24' Yet, in a militarized, cold war anti-Communist
hysteria, the CRC called for an end to the Korean War. "White supremacy at
home makes for colored massacres abroad. 242
There are sobering and inspired and inspiring lessons here for the analysis
of the relationship between racism, imperialism, and war; between interna-
tional and domestic human rights analysis, between legal, media, cultural, and
grassroots strategies. Beyond narrow domestic U.S. legal conceptions, the
CRC petition frames the injustice with a powerful naming-genocide. This
framing narrative and language was also powerfully and violently resisted-
suggesting that the framing of the justice claim affects not only its rhetorical
power but also the nature and strength of the opposition it will call forth.
In its analysis of the responsibility of government actors, private actors, the
media, the role of racist education in a segregated America as "education for
genocide," and the role of corporate capitalism and exploitation as "genocide
for profit," the CRC Genocide Petition consciously and strategically
politicizes the U.S. colonial and imperialist past, remembering a historical
present. In contrast, the Supreme Court decision in Rice v. Cayetano was
depoliticized and masked selective ideological "recounting" of its justice claim
in the antidiscrimination rhetoric of civil rights.243 Instead of framing their
petition in the even then conventional liberal civil rights language, the CRC
framed the harm, the crimes, as individual and collective structural violence
located within a colonialist and imperialist history.

239. Id. at 175.

240. See CIVIL RIGHTS CONGRESS, supra note 153, at 7.
241. Id. at 26.
242. Id. at 7.
243. See supra Part III.
Collective Memory 1801

By linking domestic and international struggles and world peace with

oppression at home, by naming the linkages between genocide at home and
genocide abroad, the CRC created the discursive and political space to build
multiracial and international coalitions. By framing the genocide to include
economic genocide, and implicating the entire machinery of brutal state power
and the role of corporate greed,"' what the petition named "genocide for
profit," the CRC was invoking a fundamental challenge to the structural order of
power-its remedy was therefore not "access" to the table. This challenge to
the very distributive shape and destructive capitalistic values of that table
recognizes the limits of liberal equality rights-based assertions and claims.
By linking domestic and international struggles, the Genocide Petition openes
the macrojustice lens to include the distributive outcomes within a society and
the distributive outcomes between societies, which are intrasocietal equality
and an international equality. Indeed the CRC was a prototype of a domestic
U.S. civil rights NGO that addressed and transcended its national geography
and politics, that understood the indivisibility of civil, political, economic,
social, and cultural rights, and that made the connection between human
rights, peace, and imperialism. And its targets included powerful corporate
monopolies-the entities that would spawn the present-day transnational
and multinational giants.
As an influential narrative, the Genocide Petition provides the story, the
language, ideas, and images not only critically to comprehend the past and
frame the present to that reconstructed past, but it also provides the normative
story, the grand narrative for how we might envision the future. We need to
reclaim the moral urgency, theoretical insights, and strategic lessons of this
marginalized history. CRC members, volunteers, and even children and family,
were relentlessly hounded and terrorized. The oppressive use of state power
to wear down and deplete the limited resources of CRC through tax audits,
investigations, and the demand for membership and contributors' names in a
time of rampant McCarthyism, contempt trials, and imprisonment,24 is a testa-
ment to the powerful threat that CRC posed to the political and economic
power structures in place. In the end, worn down, the CRC national and
local chapters with the single exception of the Seattle chapter, voted for
dissolution. Yet, as late as 1962, Attorney General Robert Kennedy was

244. In its appendix to the Genocide Petition (Document C), the CRC presents data on monop-
oly control by Morgan and U.S. Steel, the Du Ponts's rayon, nylon, plastic, explosive, and chemical
plants, the Rockefellers and their control over the greatest natural resource of the south, petroleum,
as well as the control by Mellon and Gulf Oil Corporation over millions of acres under lease, and data
on the rubber, tobacco, cotton, meat-packing, and textiles industry giants. See CIVIL RIGHTS CON-
GRESS, supra note 153, app. at 228-33.
245. See HORNE, supra note 35, at 354-58.
1802 47 UCLA LAW REVIEW 1747 (2000)

still investigating the CRC, and it was not until just before President John
F. Kennedy's death that the U.S. Department of Justice formally dropped its
case. As yet, as Home eloquently writes, "It cannot be said that CRC went
gently into that good night of liquidation, but rather it raged and raged against
the dark dying of the light."246
'
Its leadership, including Paul Robeson and
Bill Patterson did not simply fade quietly into the night, but continued their
social justice struggles to the very end of their lives. Their legacy continued:
"Their early anti-anticommunism was vindicated during the Vietnam War.
Their anti-Jim Crow crusade paved the way for the gains of the 1960s. Their
247
tactics, like the 'freedom rides,' continue to be emulated.,
The CRC times and its resonances with present civil and human rights
struggles-witness the police brutality cases, the relentless march of death
penalty executions, the violent political and economic antialien and anti-
foreign rhetoric in the media, and government attacks on poor people-should
warn and encourage us to not go silently into the night that faces us today.
Patterson appropriately has the last word: "And now, if this great ocean
swell of militancy can be mobilized, unified, illuminated by an understanding
of the class forces of which they are victims, there will be no turning back.
No surveillance, persecution, jailing, murder of individuals can stop them. In
the end, the people must prevail."" 24

246. Id. at 354

247. Id. at 358.
248. PATTERSON, supra note 217, at 223.