JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that the memory and legacy of Dr. Martin Luther King Jr. (MLK) calls us from complacency and careerism to act against injustice and help the poor and the oppressed, both in this country and abroad…

I thank JURIST for this opportunity to write on Martin Luther King, Jr.’s birthday. To remind me of the man, I watched vintage footage of MLK giving a Meet the Press interview on August 17, 1967. Once again, I felt his commitment to social and economic justice for the poor and the negro — the "bootless" as he called them – who were asked even then to pick themselves up by their bootstraps. I felt his commitment to and solidarity with the poor and the negro.

I also remember a photo my father, Griffith J. Davis, took of MLK in Ghana at the first inauguration after independence of Kwame Nkrumah in 1957. My father had known MLK since their days together at Morehouse College. MLK had been invited by Nkrumah with the hope that a meeting would happen between MLK and then-Vice President Nixon. That meeting did happen at a cocktail party, and in the wake of the Montgomery Bus Boycott Nixon invited King to Washington, D.C. No picture of the meeting was never published in a stateside newspaper, but it exists. MLK should be remembered not only as an actor on the domestic stage but as a prophet on the international plane even in the 1950’s, preaching for social and economic justice.

After listening to MLK's words and remembering his emphasis on direct action, I feel a call from him. It is a call to direct action — to say what I sense and hope speaks a truth to others and encourage their direct action.

First, for the law professors, MLK asks me to introduce the “my forefather was owned by a Founder” objection to originalism. "Barbary", born free in Africa in 1787 and sold into slavery in North Carolina in 1800, was owned by the Harrison family, source of one signer of the Declaration of Independence and two Presidents of the United States. Knowing of Barbary gives me a personal reason to have skepticism about the "timeless wisdom" of those who enslaved her or compromised with those who enslaved her. I invite an originalist to respond to that objection.

Second, I look to the images we all saw of Hurricane Katrina. They broke open a very old wound — a wound that MLK attempted to heal through his direct action. I remember feeling that wound and having a hard time expressing what it was. I then realized that the wound was a memory — a memory in the collective black unconscious of the slave block. The powerlessness of the people — poor old and mostly black – in such desperate straits reminded me of the powerlessness of the slave. And the overseers — whether black or white – really did not care enough about them to save them (and by that save themselves).

Third, I look at the Supreme Court confirmation hearings for now-Chief Justice John Roberts and Judge Samuel Alito. I look at their resumes and see that when they were 30-35 they spent their time as young Reagan Administration lawyers arguing for restriction of affirmative action for minorities and women. I think of them on the Supreme Court and I remember what my mother said to me, “When Thurgood Marshall was on the Supreme Court, I slept well at night.”

I think of Thurgood Marshall at the same age – in his 30’s and 40’s – and I am called back to a picture my father took (now on the home page of www.griffdavis.com) in a courtroom in Norman, Oklahoma in the late 1940’s. Marshall was representing Ada Sipuel against the University of Oklahoma as she sought to live her dream of going to that law school. At the same point in life when John Roberts and Samuel Alito were plotting strategies to keep women and minorities down, Thurgood Marshall was plotting strategies to lift women and minorities up. And MLK makes me say that it is simply unacceptable to have an Executive, Legislative, and Judiciary that is structured to keep women and minorities down. I remember President Lyndon Johnson’s “We shall overcome” in the mid’60’s and contrast that with President Bush’ attack on affirmative action announced on MLK’s 2003 birthday. I slept better with one Texan then rather than with the other now. I do not sleep well at night.

Fourth, I look at the way MLK’s words are used by elitists to keep the disadvantaged out, rather than to bring them in. Elitists focus on MLK’s non-discrimination legacy but not on his direct action for integration legacy. Day after day as I look around the United States I have this creeping feeling of a window closing — of more things having fewer blacks present, of a reversion to a kind of elitist tokenism, of an abandonment by too many of the kind of direct action social justice mission that is America at its best. It permeates this society in a sickening fashion. And MLK asks me to say that it is time to make the last first.

Fifth, as I see women and minorities climb to the top in the professions, the corporate world, government and academia, acting both domestically and internationally, I ask myself whether MLK would be satisfied with where they are or concerned about what they do. MLK’s social justice legacy never seemed to be solely about getting ahead but also about doing what was right. Diversity without a conscience smacks of a kind of opportunism — MLK asked for more than opportunism from those privileged enough to get through the door.

But maybe we are in a period when conscience is outmoded. Witnesses the rationalizations — too frequently offered by some minorities and women in the professions, the corporate world, government and academia – for torture and cruel inhuman and degrading treatment, for warrantless eavesdropping, for wars that appear to have been more of choice than necessity. If one wants to advance, one merely needs to support these efforts without conscience. But MLK did not support equal rights so that black people could torture fellow human beings. He did not support equal rights so that women could humiliate people of other cultures in dank detention centers in far away places. And MLK reminds me of the need to respect human dignity: to keep our honor clean, even in war. And he calls on me to shun and seek to prosecute those who do not respect human dignity.

Lastly, I look at my children and fear for the world they will have. We will be in Iraq for the next 25 years in some way shape or form. We will be in Afghanistan for the next 25 years in some way shape or form. Where America once stood as a beacon for the rule of law, it appears to be willing now to resort to legal euphemism to return to the law of the jungle. At home, we have come to a place where we cut the poor rather than those who have more. And as what goes around will come around, I fear for the future of my children. And MLK tells me to take action now to fight for their future.

This is what I think MLK would want me to say.

Benjamin Davis is a professor at the University of Toledo College of Law
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