Passover – A Celebration of Freedom

April 15, 2014

This is Passover, a holiday that comes straight out of the Bible, the Almighty commanding us to tell the story of the Exodus to each new generation as well as reminding ourselves. The Exodus, of course, is a story of freedom from slavery. The Biblical story is about the Hebrew exodus from slavery in Egypt. But we are very explicit about relating that story to the freedom of others.

In truth, whoever our ancestors, some were probably slaves. Some were serfs in Europe. Women and African-Americans have been bought and sold in much of the world. African-Americans and Native Americans have been enslaved in this country. The Haggadah, essentially the prayer-book for Passover, has been repeatedly rewritten in part to take account of new struggles for freedom. As we remind ourselves every year, “Not for ourselves alone do we pray, not for ourselves alone, but for all Your children.”

Sometimes it is also necessary to remind ourselves that freedom is indivisible – we all have a stake in each other’s freedom. The slavery of some makes the freedom of the rest of us less secure. I met my wife in 1966 because it was not safe for her to go to the Tehran bazaar without a male escort. White working men before the Civil War understood that their freedom was undermined by Black slavery – the terms and conditions of their employment undermined by what masters could get from their slaves, even as today the conditions of American workers are undermined by the abuse of workers all over the world, and the conditions of the middle class are affected by the abuse of less fortunate workers.

Freedom is not license and it implies caring about each other, not the freedom to ignore the plight of others.

We all grew up telling each other “It’s a free country.” But many of us don’t stop to figure out what that means. Free of taxes? Impossible; that was never true. Indeed the absence of government would reduce us all to slavery, naked and defenseless against every form of force, fraud, scam and abuse. Free to do anything you want without regard to other people? All of us used to call that idea license and distinguished it from freedom. License is uncivilized, the law of the jungle, that allowed and still allows some to enslave others.

Much of American history is about that fight for freedom and we celebrate it. Americans fought for significant freedoms. We fought for political freedom, the right to govern ourselves, the right to representation in the legislatures, the right to vote, the right to a fair trial and all the essential elements so that we would not convict and imprison the guiltless. We fought for civil freedoms – the right to buy and sell, to testify in courts, and the right to marry. Those freedoms are in our Constitution but it was only a few decades ago, in the context of the Civil Rights Movement, that the U.S. Supreme Court actually started enforcing them – another example of the indivisibility of freedom.

Freedom is the gift we share and it is the gift for which we work together. Jews try to celebrate it with family but we also celebrate it as a multi-cultural holiday. Freedom is indivisible.

— This commentary was broadcast on WAMC Northeast Report, April 15, 2014.


Supreme Court Recess Appointments Case

January 14, 2014

The Supreme Court heard argument yesterday about recess appointments. The Constitution says:

The President shall have the power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.

Presidents have made such appointments since the Washington Administration. In the eighteenth century, adjournments were lengthy because travel to one’s state or district could take months. Now senators and representatives can make the trip quickly. Since at least Ronald Reagan, presidents have made appointments during intra-session adjournments of the Senate.

Democrats under Bush and Republicans under Obama started calling lengthy adjournments “pro forma sessions.” Nothing is supposed to happen; the Senate is vacant except for a couple of senators to gavel in these pro forma sessions. The purpose is straightforward – to prevent the president, initially Bush, now Obama, from making recess appointments so the government could keep functioning. Justices, on both sides of the political aisle, described that as “intransigence” and “irresponsibl[e].” Read the rest of this entry »


Supreme Poison: Adultery and States’ Rights

November 16, 2013

A week ago my students and I went to the U.S. Supreme Court and saw the argument in Bond v. United States.

Carol Bond tried to poison Myrlinda Haynes because of an affair with Bond’s husband. Local authorities wouldn’t bother helping Haynes but sent her to the Postal Service, because poison was found in her mail and the Postal Service has the power to prosecute crimes involving the mail. The Postal Service set up a camera and caught Bond in the act. Postal inspectors arrested Bond and a federal grand jury indicted her for violating the Chemical Weapons Implementation Act.

The United States is a party to the international Chemical Weapons Convention. Congress passed a statute to implement the Convention which prohibited “knowing possession or use, for nonpeaceful purposes, of a chemical that can cause death” or other harms. Treaties and state failure to execute them were a major reason for the Constitution, which gives Congress power to pass laws that are necessary and proper for carrying them out.

But attorneys for Bond smelled an opportunity to narrow national power, arguing such crimes were local and reserved to the states. Read the rest of this entry »


We Know They’re Spying on Us But How Are They Using the Information?

August 6, 2013

We have heard a great deal under both Bush and Obama about the extent of government surveillance, with a crescendo in recent weeks. We are learning that virtually all of us turn up in government surveillance in some way.

Dan Solove, in a series of wonderful books beginning with The Digital Person, has made clear that the problem is probably much worse than that, because the government employs a variety of private companies to massage its data. And still worse because we know that data is constantly bought and sold, mixed and matched, with results that are sometimes comic and sometimes tragic – people assigned identities by insufficiently skeptical computers that confuse our records with the records of criminals or v.i.p.’s. The databases can and do make mistakes that flag innocent people and deny them the right to vote, the ability to get a loan, a mortgage or just get on a plane.  Read the rest of this entry »


The New Jim Crow

July 16, 2013

While coming to record last week’s commentary, I was listening to Michelle Alexander on Alternative Radio. If you haven’t heard her or read her book, The New Jim Crow, I strongly recommend it. Some of us knew the basic facts but she fills in the details and makes the argument brilliantly.

I want to elaborate something implicit in her talk but not fully expressed – what she described is why civil liberties matter, one of the major reasons the ACLU was formed, and why Alexander was an attorney for the ACLU of Northern California. Read the rest of this entry »


Intransigence – the Auto-immune Disease of Democracy

July 9, 2013

Obviously I’ve been following the news from Egypt like everyone else. You don’t need commentators to tell you that ousting a democratically elected government is undemocratic and unacceptable. But I want to talk about Morsi’s mistakes because they illustrate a major misunderstanding of democracy.  Read the rest of this entry »


The Can-do Attitude Meets a Changing World

May 28, 2013

Too many Americans oppose and prevent serious efforts to head off problems until they become a crisis. They think we can postpone dealing with global warming, abuses in criminal trials, predictable shortages of fuel, food or water, threats to our health, and the backlash from our military adventures in the Middle East, among others.

It could be called denial. Or maybe it’s just a part of a can-do attitude, the attitude that built America. Read the rest of this entry »


What’s up with gun rights

May 14, 2013

What’s the NRA’s big attachment to assault weapons? Why do we have to suffer the weapons of mass murder?

One NRA member from Texas told an NPR reporter, “As far as I’m concerned, if you can afford to buy a tank, you should be able to buy a tank.” He explained: “the Second Amendment was put in not to hunt, not to go plink at cans, not to shoot at targets. If and when tyranny tries to take over our country, we can fight it.” NRA President Porter, too, wants people to be “ready to fight tyranny.” Porter, told an audience last June, when he was NRA vice-president, that “We got the pads put on, we got our helmets strapped on, we’re cinched up, we’re ready to fight, we’re out there fighting every day.” Read the rest of this entry »


Trying Dzhokhar Tsarnaev

May 7, 2013

It seems clear that Dzhokhar Tsarnaev exploded bombs at the Boston Marathon. Although some wanted him tried as an enemy combatant outside of the requirements of the Constitution, the Obama Administration has brought charges in the federal courts.

It’s fascinating how some Americans treat our Constitution. On the one hand, many people make a fetish about what the Founders thought and did in the eighteenth century, and on the other many, often the same people, argue that the Constitution is simply irrelevant, doesn’t apply, can safely be ignored or forgotten.

Let’s get past that one quickly. Although the evidence so far does not fit the definition, the Constitution has a very clear notion of what to call Americans who adhere to our enemies – “traitors.” Read the rest of this entry »


A 28th Amendment

April 30, 2013

I got into a discussion about a proposed 28th Amendment to our Constitution a few days ago. Turns out there’s more than one proposal calling itself the 28th Amendment. I’m talking about the one that begins, “The rights protected by the Constitution of the United States are the rights of natural persons only.” There may be similar ones. There certainly are some calling themselves the 28th Amendment that address very different subjects and are totally misinformed. But the restriction of constitutional rights to natural persons is worth talking about. Read the rest of this entry »


Follow

Get every new post delivered to your Inbox.

Join 160 other followers