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.”

Tyranny is the common mantra of the NRA and the private paramilitaries training around this country. What do they mean by tyranny?

NRA president Porter told an audience that the NRA was “started by some Yankee generals who didn’t like the way my Southern boys had the ability to shoot in what we call the ‘War of Northern Aggression.’” That’s his name for the Civil War. So is the current NRA the boomerang now aimed at this more accepting and cosmopolitan nation, at our victory over slavery and for universal human rights? Does it fit all the fuss by the birthers? Or explain President Porter calling President Obama a “fake president” or calling Attorney General Eric Holder “rabidly un-American.” Holder, like President Obama, is African-American.

NPR’s Wade Goodwyn told us “NRA speakers” at their recent convention, “emphasized their belief that there are two Americas: the righteousness of the right and the decadence of the left.” In other words, one of the strands of fanaticism behind the NRA is political – not just that gun rights are political, but that the purpose of having gun rights is political, to change the society from one they dislike to one they like. That begins to explain the demand by NRA leadership that we protect the ability to buy and own operable assault weapons, high capacity magazines, even tanks – to take over the U.S. by force of arms.

After the Civil War, former Confederate soldiers, allowed to keep their guns, patrolled Southern states to make sure the former slaves stayed in what white southerners called their “place” – on the plantation – and shot people who tried to move. Others became marauders, outlaws, and bank robbers. Many formed the Ku Klux Klan and similar organizations to keep the South as it was before the War. Their vigilante organizations spread, with venom against Blacks, Jews, Catholics and immigrants. Immerse yourself now in the culture of the various private militias “training” around the country and you’ll find yourself immersed in that same culture of hate – fully armed and cloaked in the NRAs version of the Second Amendment.

Conservatives, terrified of revolution, once feared communists everywhere were trying to overthrow the government by force. About face. Now so-called “conservatives” defend the people who are preparing to overthrow the government by force. Both the rhetoric and the killing have grown since Obama was elected.

The more the NRA claims the unregulated right to big guns, the less we should trust them with anything more powerful than a rubber band.

— This commentary was broadcast on WAMC Northeast Report, May 14, 2013.

For quotations and additional information, see:

Bill Hutchinson, “Nutty new NRA president Jim Porter still fighting war against ‘Northern Aggression,’” New York Daily News, May 2, 2013, available at http://www.nydailynews.com/news/national/nutty-new-nra-president-jim-porter-war-guns-article-1.1333864#ixzz2TCcZthPC

Wade Goodwyn, “At NRA Convention, Dueling Narratives Displayed With Guns,” NPR, May 4, 2013, available at http://www.npr.org/2013/05/04/181025490/at-nra-convention-dueling-narratives-displayed-with-guns

Wade Goodwyn and Melissa Block, “Gun Owners, Activists Descend On Houston For NRA Convention,” NPR, May 3, 2013, available at http://www.npr.org/2013/05/03/180900101/thousands-descend-on-houston-for-nra-convention

For the NRA official statement on militias, see http://www.firearmsandliberty.com/nra.militia.statement.html

And have a look at Stanley Fish, “Is the N.R.A. un-American?” New York Times Opinionator (online blog), May 13, 2013, at http://opinionator.blogs.nytimes.com/2013/05/13/is-the-n-r-a-un-american/?hp

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.” And the Constitution specifies how to try traitors – in court with at least two witnesses to the treasonous acts. The Founders were careful because they understood that charges of treason had often been misused. Throughout the Constitution and the Bill of Rights, the Founders carefully built in protections so that we could be as sure as possible that the right people were convicted. They didn’t get careless when the crime was heinous and the stakes large. The larger the stakes, the more careful they were. Our Founders behaved like statesmen.

It took years before the U.S. Supreme Court managed to decide that the people imprisoned on Guantanamo were entitled to a decent opportunity to clear themselves of the charges against them. Sad that should be such a difficult issue in what we call “the land of the free.” And it turns out that there are a number of people who should never have been there, people the government eventually realized were not guilty of fighting us and should never have been detained. But because the Bush Administration made a fetish over being “tough,” it treated them so badly that they may well be dangerous now. Because the Bush Administraton couldn’t imagine living up to our international obligations, it refused to treat the men as prisoners of war, the better to hold them in the kind of conditions we deplored when done to our soldiers, and to make clear the hypocrisy of an American Administration that cried about rights and freedom but honored neither.

Some of us repeatedly swore our loyalty to the Constitution, and don’t think the Constitution is a fair weather document, good only when the sky is blue and we feel like basking in its sunny glow, but excess baggage when the sky darkens and our mood changes.

Some of us believed that we advanced the cause of freedom by binding ourselves together with other countries to honor human rights and liberties the world over, and standing up for those same values at home. But some of us apparently believe that freedom means you can do whatever you want to whomever you want without paying attention to the protections carefully put in place by the Founding Fathers we claim to honor. Perhaps those are the real traitors.

The current Administration, by charging Tsarnaev in federal court, stood by the legal system our Founders bequeathed us. It stands for the principles of a free society, and showcases faith in our own Constitution.

— This commentary was broadcast on WAMC Northeast Report, May 7, 2013.

]]> http://constitutionalismanddemocracy.wordpress.com/2013/05/07/trying-dzhokhar-tsarnaev/feed/ 0 sgottlieb http://constitutionalismanddemocracy.wordpress.com/2013/04/30/a-28th-amendment/ http://constitutionalismanddemocracy.wordpress.com/2013/04/30/a-28th-amendment/#comments Tue, 30 Apr 2013 20:49:17 +0000 Stephen Gottlieb http://constitutionalismanddemocracy.wordpress.com/?p=885 ]]> 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.

Lawyers are sometimes cursed with awareness of all the problems in a proposal and, initially, I opposed it for technical reasons. More, I wasn’t encouraged by the fact that its supporters were unwilling to engage in anything like a rational discussion of its problems.

But I’ve changed my mind. I’ve come to the conclusion that the headstrong passion it’s supporters possess is good reason to support the proposal. The U.S. Supreme Court clearly overreached in the Citizens United decision in which they held that corporations are entitled to all the free speech rights of natural persons, and that their spending of funds from their corporate treasuries is protected by the First Amendment. The decision has stirred passions that should be unleashed to take this country back from those who believe this country should be run by a government of the plutocrats, by the plutocrats and for the plutocrats.

I’m still skeptical of the second section of the proposal that I’ve seen, which authorizes restrictions on campaign funds generally – there are many ways that restrictions can be mishandled to guarantee that those in power cannot be challenged effectively. I and many public interest organizations and almost all political scientists would rather see publicly funded campaigns. But both public funds and campaign restrictions can be set so low that incumbents cannot be challenged. So those same supporters would prefer public funding either with optional private funding or in addition to private funding. The mantra in the political science community has been “floors, but not ceilings” on political campaign funds.

That said, bandwagons can be constructive and this one looks like one that will attract people of good will. The Supreme Court has been consistently tilting elections in this country toward their favored candidates, cutting off the counting of ballots and pre-emptively handing the 2000 election to Bush despite a majority of the country who voted for Gore. And the Court has been
• upholding restrictions on who could vote that were clearly and discriminatorily aimed at Democratic voters,
• unleashing the power of corporate money in a series of cases leading to and including Citizens United, and
• doing everything it could to advance the interests of corporations over the people they injure and defraud.

The Occupy movement woke much of the country up. But there is still a great deal of organizing to do to take our country back from the corporate boardrooms and restore democracy in America.

I doubt the proposed 28th Amendment can pass – there are too many states in the grip of the Tea Party. But the battle will rejuvenate the fight for economic justice in this country. May we meet at the barricades.

– This commentary was broadcast on WAMC Northeast Report, April 30, 2013.

But I’d like to reflect on why that is. Frankly I do not object to paying my share of taxes. That’s not because my taxes are trivial – I get a decent salary and I pay a significant proportion just like the rest of us. But, as the great Justice Oliver Wendell Holmes, Jr., said, “Taxes are the price we pay for a civilized society.” And I have no problem in doing my share.

The income tax was originally adopted because it is more fair that almost all other forms of taxes – it’s assessed on our ability to pay. We even passed a constitutional amendment to overturn a Supreme Court decision against the income tax. This year is the centennial of the ratification of the Sixteenth Amendment. Think about that – Americans all over the country wanted an income tax.

When politicians come up with different forms of taxes, sales taxes, flat taxes, whatever, they are all easier on those who can afford to pay higher taxes, and harder on those who can’t. They are described as simplified or easier and some even claim they are fairer, but the real point is to shift the burden of taxes off the people with the most and toward the people with the least.

The real problem the rest of us face, with taxes as they are, is the nuisance. April 15 is like a punch in the eye. It’s tax day and we have to do all sorts of stuff–read complicated instructions, fill out forms, and finally, make a payment. The real problem with the income tax isn’t the tax, it’s the process of making us all either turn ourselves into accountants or hire one to do the job. Online tax and computer programs are a compromise–we still have a lot of work to do, but the programs organize our inputs and do the math. And we hope they get it right.

Yet all of this isn’t necessary. There are countries with an income tax that do not have anything comparable to April 15. There’s no orgy of pulling our records together and filing a return. Income taxes are paid as seamlessly as sales taxes, without all the storm and drama, without all the fuss, and without all the political handwringing.

So ask your congressperson to look into how the British do it, for example, and see if America can’t become a place where it is relatively painless to pay our taxes, where we can proudly pay our share without the obligatory complaints about the massive burden of the process of paying. Let April 15 become a holiday to celebrate our community spirit, doing our part, for the good of the nation, for the benefits of civilization.
— This commentary was broadcast on WAMC Northeast Report, April 16, 2013.

There may be other lawyers willing to take those cases. But these aren’t small matters to the people involved. More, all of the potential clients were middle class. Two of them could or did own their own homes and had good university level teaching jobs. The third was just starting out but with a set of unique skills that should set her on a very profitable course in business.

What happens to the janitorial staff or the short order cooks, people with steady jobs but without a stack of resources to fall back on? The unemployed poor are supposed to be able to go to legal aid societies but the government doesn’t want them doing any but the most run of the mill litigation lest they actually assert their rights. And just to make sure, government backs up its legal restrictions with minimal budgets so the poor are lucky to get any representation.

We fuss about the cost of a legal education, but we have far fewer lawyers than the public deserves. High price jobs are almost all about corporate perks. You and I are lucky to find lawyers who know how to solve our more common problems. If you’ve lost a job, and find a lawyer to help you, he or she will probably have to tell you that any litigation over what your company did to you will take years and you’re going to have to find another way to survive in the interim. In the years I spent working for a legal aid society, I had to do just that repeatedly.

The New York Civil Liberties Union is suing to get the state to put sufficient resources into public defender programs so that innocent people won’t be doing jail time and it won’t be a crime to be too poor to afford legal representation. They’ve put their fingers on some real miscarriages of justice and they are trying to prevent it from continuing to happen.

The right to a lawyer, however, only covers criminal cases. And the movement for legal insurance for civil cases lost steam years ago. But I don’t know a good alternative for most people. You already have legal insurance with your car insurance policy. But except for traffic accidents, most of us don’t have insurance that can cover some of the most devastating legal insults that threaten our homes, jobs, children, health and survival. It is a huge problem. And we ought to deal with it.

— This commentary was broadcast on WAMC Northeast Report, 4/9/2013.

We’ve already seen that New York, New Jersey and Connecticut are vulnerable. Sandy’s storm surge washed over much of lower Manhattan and backed up through the tunnels onto parts of Brooklyn. More important, it put the subways and electrical grids out of operation. The City came to a standstill. Parts of Statin Island and Long Island were destroyed, stranding thousands without homes to return to. Travel to Providence, Rhode Island, and people will show you the water marks from other tidal waves that literally washed over their city, flooding downtown to a height well over my head. Or check a now hollowed New Orleans.

Facing two oceans and the Gulf of Mexico, America has a lot of coastline. Maps by feet over sea level show much of it at risk of being inundated. Much of Boston is built on fill and much of it will be underwater if the seas continue to rise. It won’t take much sea rise to bury Florida under water. Washington, D.C., is built on what was a lowland swamp, easily inundated by sea rise. The same is true on the Gulf and Pacific Coasts. Seventeen states from Maine to Hawaii have more than 1,000 miles of tidal coastline apiece, nearly 2,000 miles in New York State alone. Some 40% of the population of the U.S. lives in counties on the coast, facing the ocean or subject to high coastal hazards.

It’s easy to say it’s someone else’s problem. But who of us doesn’t have family members who headed for the big coastal cities for work, school, careers or retirement? Others frequently travel to the coasts on business. Some of my students have offices both here and in the City. All of us depend on business and trade that come through America’s port cities. John Dunne wrote centuries ago that “No man is an island, entire unto himself.” Truly none of us is an island unconnected to the coasts. This is one country and destruction of the coasts will be catastrophic for us all – not to mention the direct damage that global warming is doing by storms and droughts to the inland parts of our country.

What will America be like when something like nearly half the population become refugees, when we have to beg assistance from the rest of the world to put each other up in tents and stock refugee centers with food, water and toilets? Are we willing to make a sacrifice now to prevent that from happening? Are we willing to put up with a carbon tax to put the brakes on everything that goes into global warming? Are we patriotic enough to shoulder a piece of that burden to save our country?

— This commentary was broadcast on WAMC Northeast Report, April 2, 2013.

]]> http://constitutionalismanddemocracy.wordpress.com/2013/04/02/environmental-patriotism/feed/ 0 sgottlieb http://constitutionalismanddemocracy.wordpress.com/2013/03/27/the-gay-marriage-cases/ http://constitutionalismanddemocracy.wordpress.com/2013/03/27/the-gay-marriage-cases/#comments Wed, 27 Mar 2013 21:32:26 +0000 Stephen Gottlieb http://constitutionalismanddemocracy.wordpress.com/?p=868 ]]> Sunday night, my wife and I attended a Persian Nowruz or New Year’s festival, with many friends. We celebrated the best and happiest of the traditions they had left behind, along with other Americans who had come to take part. While celebrating the rebirth of Spring, we were also celebrating freedom with friends who had become refugees, whose humanity and efforts to use their skills to help others had become unwelcome to Iranian authorities.

Last night we celebrated freedom with another group of friends, this time in a Passover Seder at our home. We were all Americans by birth but we remembered the importance of freedom to the ancient Israelites and to the many different groups who have struggled for freedom in our own lifetimes.

On both evenings some of the conversation turned to what was going to happen in the cases dealing with the rights of gays and lesbians in front of the U.S. Supreme Court this week.

My response was to take our companions back to 1938 when the U.S. Supreme Court decided that Missouri could not satisfy its duty to African-Americans by sending them elsewhere to pursue their legal education, regardless of the quality of the education they would get. The Court had set itself on a doctrinal course that logically led to the end of segregation in Brown v. Board, but it would take another sixteen years, a World War and some crucial changes in membership on the Court before it could arrive at that conclusion. It took an act of great courage to decide Brown and we are indebted to Chief Justice Earl Warren for enabling the birth of modern civil rights law.

Now the question is how much courage Justice Anthony Kennedy has? It was Kennedy who wrote the opinion of the Court in overturning a constitutional amendment adopted by the voters of Colorado which prohibited any law which protected gays or lesbians from discrimination. And it was Justice Anthony Kennedy who held that Texas could not make a crime out of the private sexual conduct of consenting adults. But will he have the courage to decide that California cannot bar gay marriage, or that the U.S. cannot refuse to recognize marriages performed in states where it is legal?

Kennedy has rarely split from his four conservative brethren when they are united, except in free speech cases; he has been a consistent champion of the speech rights of Americans. With that exception, however, he has rarely separated himself from the conservative wing of the Court.

When Justice O’Connor was on the Court, he had her support for the results in both of the seminal gay rights cases on which he wrote the opinion, even though, in Lawrence v. Texas, she reached the same result for different reasons. Unfortunately, Justice O’Connor has retired. If Kennedy joins the liberal justices, he will almost certainly be the only conservative on the Court to do so. It’s hardly clear that he will have the courage.

So in this week of Passover, Easter and celebrations of freedom and of Spring, it is appropriate to pray for some Kennedy courage – may he stick by his libertarian principles when it will take some guts.

— This commentary was broadcast on WAMC Northeast Report, March 26, 2013.

Years ago, I wrote a friend, H. Jefferson Powell, at Duke, that I felt I had a stake in his winning his argument from Episcopal theology, in his great book, The Moral Tradition of American Constitutionalism.

Similarly, we all have a stake in the choice of a pope. The pope affects brotherhood and sisterhood across faiths. Friends in both faiths have told us that Bishop Hubbard made a very positive difference in the relation of Catholics and Jews here. His work also reflected a shift in Vatican thinking. I suspect he knew his initiatives would be supported there. Popes matter.

And the moral authority of the Papacy and the Vatican matter. Yet we are faced with a deafening silence about some of the greatest moral tragedies of our time, like the silence of the Vatican regarding the desaparecidos, the tens of thousands of people who were “disappeared” in the 1970s and 1980s in Latin America, as many as thirty thousand in Argentina alone, by military regimes in a determined struggle against democracy. Many of us remember las madres y las abuelas de Plaza de Mayo, the brave mothers and grandmothers who came daily to the capital to demonstrate for the return of their children and grandchildren. The Vatican objected then to liberation theology as it had taken root in Latin America in support of the poor and the nearly enslaved peasants. But its silence on the disappearances was deafening.

Pope Francis, in Argentina in the thick of that so-called “dirty war” on democracy, tried to save some of the people. But we are learning the Church knew a great deal about what was going on, had lists of the disappeared, the desaparecidos. Wealthy or powerful parishioners could ask the clergy for information about their children. But not the peasants. The Church was neutral about the war, the disappearances of writers, students and peasants alike whom the military feared. The sin of murder is clearly identified in the Ten Commandments. But the Vatican had nothing to say about the desaparecidos, one of the great moral issues of our time.

Of course the hot button issues have all been about sexuality and reproduction. My concern has been the way that the theological argument about abortion has blocked realistic efforts to deal with the explosion of population around the world, and in turn the way all those additional people contribute to global warming. From my point of view, global warming is one of the preeminent moral issues of our time. But the Church’s resistance to dealing with the underlying population explosion has been deafening.

One should expect isolation rather than awareness to characterize a human institution, organized as a self-perpetuating board, over thousands of years. But one has a right to expect a religious institution to be sensitive to moral issues. The American Church played a much more positive role in our own Civil Rights Movement.

So in fact I care very much who the Pope is. And I hope that the elevation of Pope Francis will yield some light on this dark chapter in Church history, and, even better, some changes that will prevent such moral obtuseness coming from what should be a preeminent moral institution of our world. We have much to hope for from the new pontiff and every good wish for his success.

 — This commentary was broadcast on WAMC Northeast Report, March 19, 2013.

Both sides in this Middle Eastern brawl have been behaving badly for decades. The Palestinians have been lobbing mortars and shooting bullets at Israeli citizens – men, women and children, farmers, commuters, schools and kibbutzim – since 1948. The only proper word for that is terrorism, the proper designation for the deliberate targeting of civilians for political purposes. Many of those attacks have been timed to scuttle peace talks by making the compliant Israelis pull out. Netanyahu and his predecessors did their bidding by remote control.

But Israel in response killed not the perpetrators but civilian stand-ins, flunking Machiavelli and every tome on suppressing conflict. Palestinians lob mortars or rockets, Israel responds with artillery, tanks and bulldozers. At some point it became impossible to tell who was doing what in response to whom. Even the Hatfields and the McCoys figured out how to end their war. Instead of pacifying the Palestinians, Israel enrages them. Instead of confining the conflict, Israel broadens it. And instead of honoring agreements not to settle in the West Bank, Israel continues to permit and defend new settlements. Those strategies turn the Palestinian problem into the Palestinian disaster, leading everyone to take up arms.

So, two outrageous combatants give us little moral ground to choose. But the continued war makes us vulnerable to continued terrorism directed at the U.S.  So, cooler, smarter heads should do something.  We have only one choice, because only the Israelis are almost completely dependent on us. Frankly, if someone else is willing to supply them, that would take the U.S. out of the conflict. But if not, as I suspect, then it is to the Israelis that we should be sending ultimatums.

Middle East experts have been telling us for years that the terms of a settlement are clear and well understood. The problem has been that no one was ready for the political pain of agreeing to those terms. We can demand Israeli action on the settlements, honoring agreements already made, and Israeli agreement on those well-understood terms, on pain of our letting them out to dry – not words and so-called messages but actual insistence and a clear policy shift, with all the machinery to put restrictions in place.

If Israel complies, we can insist on the Palestinian side of the bargain, preparing to support their state if, but only if, they comply. It will take a good deal of self-restraint on our part because there clearly are factions on both sides who would do their best to scuttle any deal by killing whoever they believe would most effectively result in an end to any peace process. At that point isolated attacks have to be addressed by the criminal process, not by armies. If Hamas or the PLO refuse, then, and only then, after sensible, gutsy and determined efforts to settle a dispute that has been embroiling the U.S. ever since the end of World War II, we can return to the defense of Israel and support for its military.  We have a right to try to get out of this thing, a moral obligation to our own people to stand up for peace, the peace that Israelis and Palestinians both claim are among the highest obligations of their sacred texts, the peace of Shalom and Salaam.

— This commentary was broadcast on WAMC Northeast Report, March 12, 2013.