Scalia’s Legacy

February 14, 2016

As my dear friend Vincent Bonventre has written, “All good Americans are saddened by the news that Justice Antonin Scalia has died.” But this is also a moment to consider his role on the Court.

For me, the principal fact is the disclaimer by Justices Thomas and Scalia that democracy has anything to do with the work of the Court. He was consistent. Stopping the counting of votes and overruling democracy in Bush v. Gore, repeatedly deciding that gerrymandering could not be determined by the courts, voting to limit access to the ballot, and overriding legislation designed to protect the equal right to vote where it had been most flagrantly denied. And of course Scalia joined the majority in the infamous Citizens United decision.

These are all part of the Court’s Republican tilt in recent years. This has not been a Court for all Americans, enforcing fair and neutral ground rules for everyone, but specifically a court with its foot on the scale making sure that the Republicans win, the Republicans control the Congress, and Republicans place an imprint on the law.

In the coming term, there are cases awaiting decision that will decide whether an independent, non-partisan commission can be charged with redistricting, what counts as gerrymandering and what is barred as retrogression in minority rights under the Voting Rights Act, among others. The Court in similar cases has been governed by a 5-4 conservative majority. In the present term, it is unlikely to be able to decide many of them, leaving lower court decisions intact, but not setting precedent for future cases. In effect, whatever the lower court decisions, the questions will remain open for the Supreme Court to decide in the future when it is back to full strength or otherwise has a majority that can reach a decision.

There are other areas of law to consider. Justice Scalia has been a consistent member of a pro-business majority that has emasculated consumer protections in state law as I have described in my new book. He also wrote the decision that emboldened gun-rights radicals to intimidate federal officials, fought against rights for gays and lesbians, and helped block even the mildest of efforts to integrate public schools.

Scalia’s sincere emphasis on textualism sometimes led him to support “liberal” outcomes as George Kannar long since demonstrated. But most of his decisions tracked conservative views far more than textualism or originalism would have supported.

So Scalia’s absence will make a big difference on the Court. The long run implications, of course, are up to the President and the Senate. Stay tuned.


For Valentines Day 2016

February 9, 2016

It’s the time of year to think about love. I used to think that if you hadn’t heard Cho Cho San sing in Madame Butterfly about that fine day when Lieutenant Pinkerton would return to her, one had never heard a love song. Musically, I still think so. But what it really communicates is longing. Is that love?

Much of what we hear as popular music, or art songs or operatic love songs are songs of longing, loss or jealousy. Where’s the love?

Contrast that with Billy Bigelow’s soliloquy in Carousel where he starts thinking of the child he and Julie are expecting. First he thinks about the things he’ll do with “my boy Bill” until he realizes that the son he is dreaming about could be a she, and then realizes the ways that he will have to provide for her. Of course he is sexist in the ways that he thinks about his son or daughter, but he is also realizing and warming to the responsibilities of a loving husband and parent. Billy comes to understand that love is about the ways he can make his family’s lives better, not merely about his own pleasure.

Billy makes a big mistake and pays with his life. But the soliloquy that Rogers and Hammerstein wrote for him says a great deal about what love is about, the ways it transcends longing and jealousy, the joys of giving, the humanity of caring. I think that says a lot about the love that many of us experience. We seek the responsibility, the opportunity as well as pleasures of truly caring about others.

For me, that includes the satisfaction of taking seriously the needs of other Americans, of all origins, faiths and colors, and openness and respect toward visitors and immigrants. Respect and concern for others is part of asking the same for oneself. Ours is a very diverse country and it will be moreso in coming years. We can teach new generations of Americans that success is just a process of stomping on others to gain advantage or we can communicate the values of mutual concern and respect – toward others, and toward ourselves. Ultimately, peace depends on how well we treat each other, and how confident others are that they can live in peace and harmony with us.

The modern world has upended some ancient accommodations among peoples. Jews lived at peace in the Muslim world for a millenium and lived precariously in the Christian world for much of the same period. Colonialism played a part in changing that for the Muslim world. The racism and classism of colonialism stirred the Muslim soul and some of that has come out as anger. That illustrates the importance, as well as the morality, of the Golden Rule, treating others as we would want to be treated. For me it also points to the satisfaction of truly caring about others.

May I end with the words of the ancient Rabbi Hillel:

If I am not for myself, who will be for me?
But if I am only for myself, who am I?
If not now, when?

— This commentary was broadcast on WAMC Northeast Report, February 9, 2016.

 


Milestones Update, February 8, 2016:

February 8, 2016

Unfit for Democracy is now available in book stores, online and on Kindle.

NEW:

Rescheduled for Friday, February 12, 2016, interview by Susan Arbetter for broadcast at a later date on WCNY’s Capitol Bureau

Added: Thursday, February 25, 2016, at 3:30, talk at the University at Albany, location to be announced

FULL SCHEDULE OF UP-COMING EVENTS:

Thursday, February 11, 2016, at 1 p.m. on WAMC, broadcast on “In Conversation with …” of the interview by Alan Chartock, CEO of WAMC, before a live audience at Albany Law School, on Jan. 26, 2016

Rescheduled for Friday, February 12, 2016, interview by Susan Arbetter for broadcast at a later date on WCNY’s Capitol Bureau

Thursday, February 25, 2016, at 3:30, talk at the University at Albany, location to be announced

Friday and Saturday, March 4-5, 2016 at “The Schmooze,” a meeting at the University of Maryland School of Law, on Constitutionalism and Democracy

Wed., March 23, 2016, at 1:30 p.m. at the Humanities Institute for Lifelong Learning, at the Delmar Reformed Church, 386 Delaware Avenue, Delmar, N.Y. This is listed as members only but may open up later.

March 24, 2016 at 7 p.m., book party at the Book House at Stuyvesant Plaza, open to the public

March 29, 2016, address at the Annual Meeting of the Westchester Chapter of the New York Civil Liberties Union

Tuesday, May 17, at noon, Book Talk, Albany Public Library, open to the public

Tuesday and Wednesday, May 24-25, 2016, at the Demos Convening at the University of Pennsylvania

AUDIO AVAILABLE:

Joe Donahue’s interview of me on the WAMC Roundtable, Jan. 25, 2016 at 11:10 a.m., is currently available as a podcast.

PLEASE get in touch with me if you are interested in arranging an event.

All good wishes,

Steve

 


Milestones update

February 3, 2016

Unfit for Democracy is now available in book stores, online and on Kindle.

COMING UP:

Tuesday, February 9, 2016 interview by Susan Arbetter for broadcast at a later date on WCNY’s Capitol Bureau

Thursday, February 11, 2016, at 1 p.m. on WAMC, broadcast on “In Conversation with …” of the interview by Alan Chartock, CEO of WAMC, before a live audience at Albany Law School, on Jan. 26, 2016

Friday and Saturday, March 4-5, 2016 at “The Schmooze,” a meeting at the University of Maryland School of Law, on Constitutionalism and Democracy

Wed., March 23, 2016, at 1:30 p.m. at the Humanities Institute for Lifelong Learning, at the Delmar Reformed Church, 386 Delaware Avenue, Delmar, N.Y. This is listed as members only but may open up later.

March 24, 2016 at 7 p.m., book party at the Book House at Stuyvesant Plaza, open to the public

March 29, 2016, address at the Annual Meeting of the Westchester Chapter of the New York Civil Liberties Union

Tuesday, May 17, at noon, Book Talk, Albany Public Library, open to the public

Tuesday and Wednesday, May 24-25, 2016, at the Demos Convening at the University of Pennsylvania

AUDIO AVAILABLE:

Joe Donahue’s interview of me on the WAMC Roundtable, Jan. 25, 2016 at 11:10 a.m., is currently available as a podcast.

 

PLEASE get in touch with me if you are interested in arranging an event.

 

All good wishes,

 

Steve


What is Limited Government Anyway?

January 26, 2016

With the presidential primaries underway, the media is choked with talk about getting the government off the people’s backs, restoring limited government, making government let the people alone. But the Koch brothers, the Tea Party, their candidates and supporters are actually saying something very different – they want government to support their definition of their rights and push everyone else out of their way, and most important they want the courts to decide in their favor when others complain that they are trespassing on public land or polluting the air, land and water in ways that injure and interfere with the lives of others. That’s government in their favor.

We lawyers talk about law as a seamless web. That sounds like an idiom but it’s actually very precise. Everything is governed by rules. Judges always decide that someone does or does not have a privilege or a right. Those are all decisions about what the law is. Law always favors someone and disfavors someone else. If someone has a privilege, then everyone else loses when that person does whatever he or she is privileged to do. The question is not, cannot be, whether there is law; the question we have to deal with is whether it is fair and whether it is good for the public. Government off the backs of some means government on everyone else’s back, often leaving you and me poor and defenseless.

Limited government, regulation off people’s backs, are the tropes we hear when a government agency or legislature takes note of bad behavior – fraud, pollution or unconscionable business practices that cause decent people great loss. Unscrupulous companies, some very large and well known, as we discovered during the 2008 financial shock, want no regulations that would set a moral floor under their behavior, allowing more moral enterprises to compete instead of being bankrupted by cut-rate competition from the scandalous moguls. The only regulations that the unscrupulous like are regulations that keeps everyone else out of their way.

So when you hear that trope, look squarely at the privilege these anti-government claimants are defending. You hear it loudest when people are claiming the right to hurt the public. That’s not a claim of freedom that would have made any sense to the Founders of our country.

When the Founders spoke and wrote about government, their central questions were what’s fair and what’s good for the public. Those was central in every aspect of their work from the definition of property rights to the rights the public retained and what the public could and should do for the benefit of the people. Concern for public welfare was central to the building of the Erie Canal that defined the path of commerce in the State of New York for a century and a half, even as the canal was replaced by roads and railroads to continue developing the path the canal had developed. Concern for public welfare was central to the establishment of schools which made Americans among the most educated people on the earth, education that was at the root of all the good things that have happened since.

The Founders believed in public spirit, not a spirit of what the public could do for one’s selfish needs, but a spirit about what each of us could contribute to the improvement of the community, the states and the nation. When President John F. Kennedy told the American people “Ask not what your country can do for you; ask what you can do for your country,” he was channeling the spirit of the Founders.

— This commentary was broadcast on WAMC Northeast Report, January 26, 2016.


Let’s take the Constitution back – from the deniers

January 22, 2016

Republicans repeat over and over that they want to take back the Constitution. That’s nonsense. Actually they are trying to destroy it. It’s important to understand where it comes from. After the Civil War, generations of Southern writers tried to win the peace after losing the War. They succeeded. There is no chance that you were not brought up familiar with elements of it.

In history, that’s called the Dunning thesis.[1] It refers to the claim that, after the Civil War, radical Republicans acted out of spite and revenge rather than out of deeply seated conviction. Historians discredited that thesis a century ago but it kept coming up in the textbooks as if no one bothered reading the historians who discredited it. In fact the Republican leadership who wrote the Fourteenth Amendment were totally committed to the ideal of equality. Thaddeus Stevens, a Republican leader in Congress, told the House he dreamed of the day when “no distinction would be tolerated in this purified republic but what arose from merit and conduct.” The Republican leadership knew and respected African-Americans and former slaves, employed them in responsible positions, welcomed them as friends and in some cases lived with them.

I have to deal with the fallout in law all the time. From the beginning of our country, Southern slaveholders tried to convince Congress and the people that the Constitution had granted Congress little or no power over the states and the country.[2] The courts repeated that formula endlessly, citing the writings of various Founders to prove their point. They are cherry-picking the data. The Convention that wrote the Constitution was dominated by nationalists; the states-righters stayed home. They wrote a powerful document. In the debates over ratification, however, both sides confused the issue. Proponents of the Constitution tried to reassure the public by saying how little the Constitution would do. Opponents tried to scare the public by saying how much it would do.

Regardless of any ambiguities in the original 1787 document, the Civil War Amendments made much of Congress’ power clear, but not to the Roberts Court. President Andrew Johnson sent Gen. Carl Schurz south to report on conditions in the former Confederate states.[3] His Report revealed the ways that former slaves were being re-enslaved by new rules, tracked, beaten or killed for trying to leave, work for themselves, or what we would call walking while Black. Most clearly Congress did give itself the power to deal with those abuses, public and private in the Reconstruction Amendments, the Thirteenth, Fourteenth and Fifteenth Amendments.

You may have heard present day self-styled conservatives who have now taken over the modern Republican Party, trying to take back what the original radical Republicans tried to do, calling African-Americans and others “Fourteenth Amendment citizens.”[4]

Americans of the Civil War generation believed that citizenship gave people a number of rights and they were determined to make sure that the freedmen had those rights. The draft of the first section of the Fourteenth Amendment, as it was brought to the floor, included the right to the privileges and immunities of citizenship, due process and equal protection – each of which overruled the notorious Dred Scott decision just a few years before the Civil War. But on the floor a motion was made to make the point indisputable: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”[5]

Those are elegant words America can be very proud of. We don’t always live up to those ideals. But those ideals justify a great deal of pride. Hold onto them and don’t believe anyone who denies them. They are nothing more than apologists or dupes of the old Confederacy and modern racists.

— This commentary was broadcast on WAMC Northeast Report, January 19. 2016.

[1] See The Dunning School: Historians, Race, and the Meaning of Reconstruction, 36-39 (Univ. Press of Ky., eds. John David Smith, J. Vincent Lowery, 2013), https://books.google.com/books?id=OcJKAQAAQBAJ&pg=PA22&lpg=PA22&dq=the+Dunning+thesis&source=bl&ots=885Fs23eFw&sig=3AN6KTp5IG5gE7DF6AfL5t-5COA&hl=en&sa=X&ved=0ahUKEwiKxdeskLHKAhXHwj4KHb11BEEQ6AEIUTAI#v=onepage&q=the%20Dunning%20thesis&f=false

[2] Prior to the Civil War, counsel argued that the southernmost states would not have joined the union if they had reason to believe that Congress would have had any power over slavery. See Groves v. Slaughter, 40 U.S. 449 at app. lvii-lviii, lxv (1841); Prigg v. Pennsylvania, 41 U.S. 536, 611 (1842); Dred Scott v. Sandford, 60 U.S. 393, 411 (1856) (Taney); and see R. Cover, Justice Accused, 234, 240-41 (1975).  Thus they argued that the commerce clause had to have a narrow meaning. The Court struggled with the meaning of the commerce clause in a group of cases involving regulation of passengers. See Mayor of the City of New York v. Miln, 36 U.S. 102, 136 (1837) and The Passenger Cases, 48 U.S. 283, 474 (1849) (Taney, C. J., dissenting).  To have treated people as subject to commerce clause jurisdiction would have enlarged the possibility of power over slavery.

[3] Carl Schurz, Report on the Condition of the South, 39th Cong., 1st Sess., SENATE, Ex. Doc. No. 2 (December 19, 1865).

[4] Garrett Epps, Trump’s Birther Libel and American History, Atlantic Online, April 12, 2011, accessed on Lexis/Nexis, Jan. 17, 2016, and see online literature of the “Freedom School,” http://freedom-school.com/citizenship/fourteenth-amendment-citizenship.html.

[5] The seminal study of the history of the Fourteenth Amendment is Horace Edgar Flack, The Adoption of the Fourteenth Amendment (Classic Reprint, 2015) (1908). For a brilliant recent discussion, see Richard Aynes, Unintended Consequences of the Fourteenth Amendment and What They Tell Us About its Interpretation, 39 Akron L. Rev. 289, 309-21 (2006).


For Whom the Bell Tolls Amid the Refugee Crisis

January 12, 2016

Wars in the Middle East are creating huge flows of refugees. If war creates refugees, we either have to have a way to stop the wars or a policy about refugees. Just saying we will or won’t let people in is a decision, not a policy. One must think past those decisions to the enormous consequences.

Countries can try to exclude refugees leaving them to fend for themselves wherever they are. Countries can also put them in camps, let them in but then leave them to fend for themselves, or help them settle. Surrounding countries can also stop them at borders, keep them in camps, or let or help them settle. The permutations produce very different results.

More than six decades ago, Arab states refused to let the Palestinians settle. Ipso facto they created a permanent Palestinian fighting force. But who would the Palestinians fight? The oppressors keeping them in the camps, or the oppressors who pushed them out of their land? Which story would they buy? Refugee issues can fester. Both Palestinians and Israelis feel their backs to the wall and feel themselves fighting for survival, with lethal results.

Incidentally at the same time, a much larger refugee crisis existed in the Indian subcontinent leading to the separate nations of India and Pakistan out of the British Raj. That land is still troubled, though neither denies the other’s right to exist. In both cases, the mass exoduses left powerful marks on the stability of the regions.

And on the US southern border what happens to the people we exclude and what happens to us because of it? Impoverished masses elsewhere are likely to do the same things that impoverished masses do here – turn to some forms of crime. I doubt, when one takes white collar crime and tax evasion into account, that crime is much more prevalent amongst the poor but it is different – mostly theft, drug dealing or prostitution for survival or quick cash.

Then there’s the effort to deport people who were brought here as small children, an effort some of the prominent Republican candidates have endorsed. Ok, what are those kids going to do when they are back in their countries of origin? Many of them will find themselves jobless because they are strangers in what Americans insist on calling their land. But those young people brought up in the United States will prove valuable to criminal enterprises abroad because they could cross the borders and pass here easily. From an American point of view, those likelihoods of crime and participation in organized crime abroad are dangerous here. Volatile borders do no one any good.

Would it be better to bring them in, settle, employ and educate them and our people too, than to insist that everyone is on their own volatile devices to deal with the cruelties of a world without mercy. And then think about the effect of refugees on the people they leave behind. Think about the letters home, and the money home. Who is the so-called Great Satan when family write back with ordinary family developments – marriages, jobs, babies – and send money.

Creating a population tsunami and then pushing people back into swirling lifeboats has consequences for all of us. “No man is an island,” wrote John Donne, “entire of itself….. And therefore never send to know for whom the bell tolls; It tolls for thee.”

— This commentary was broadcast on WAMC Northeast Report, January 12, 2016.


Follow

Get every new post delivered to your Inbox.

Join 274 other followers