Trump’s Path to Violence

June 28, 2022

There’s too much important news, but everything depends on elections working properly. And I felt sick listening to the hearings last Tuesday. Trump and his team publicly spread rumors about election workers, and skipped any process, due or otherwise. Their rumors led to vicious threats. At the hearings, a Georgia election worker told us neither she nor any of her colleagues will work the next election. She, her family and neighbors were continuously harassed. She described constant interference, phone calls, being staked out, her home invaded, racial epithets hurled at her, and told ominously she was lucky this is 2022, not 1922, referring to the lynchings that the Ku Klux Klan and similar lawless mobs of thugs would have done in 1922. The FBI told her and her family to go into hiding – for months. So vicious have the mobs been that she’s afraid even to go to the grocery store. Trump should be known by the thugs he keeps as friends. No self-respecting American has any business supporting this kind of thuggish lawlessness.

What we’re seeing is reminiscent of the racist groups that ruled the segregated states by violence, intimidation, and murder. Afraid for themselves, sympathetic whites kept their mouths shut when Blacks were attacked or when thugs and their ringleaders were implicated in other wrongdoing . Everyone tried to abide by racist rules for self-preservation. Even the future Justice Hugo Black joined the KKK as a young lawyer to expand his contacts and clients. The Klan and the racism it enforced dominated the segregated states, subjugating Blacks and cowing decent whites. The lack of freedom there wasn’t much different from what we rightly condemn in places like Saudi Arabia, Afghanistan, Putin’s Russia or Xi Jinping’s China.

In American states dominated by racists, Blacks were lynched in front of large crowds as a spectacle that often included burning as if they were bar-b-que. Onlookers took home charred body parts as souvenires. If people were lucky their homes were burned and they were merely driven out. That’s where lawlessness goes. A lecture describing one such lynching is permanently seared into my brain.

Mob violence affects us all because it establishes rule by the sword. The U.S. and states like New York passed laws to protect people from the Klan. Mobs don’t respect due process. They feed on each other heedless of factual or legal limits. There were over 6,400 lynchings between the Civil War and 1950, and more since. People were yanked out of jails lest they be acquitted. We know the innocence of some but it’s impossible to establish the guilt of any, given the complete absence of due process. Fourteen year old Emmett Till, visiting from up north, was murdered for a conversation with a white woman – he was accused of flirting or whistling at her – whether he did hardly matters. Rule by the sword knows no bounds.

Trump and his minions use weapons the way no self-respecting gun-owners would. They substitute his hunch or belief for election numbers. There’s no democracy without counting ballots. There’s no freedom if rulers are imposed by hunch or belief. There’s only egotism, greed and self-interest. It turns the rest of us into servants, serfs or slaves of the rulers. Trump’s encouragement of violence and intimidation have one end – the destruction of everything we admire about the country we’ve called home.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on June 28, 2022.


Psychopaths on the Bench

June 23, 2022

The Supreme Court says we can’t keep guns off our streets and we have to defer to the gun nuts. Well, the Supreme Court has made it’s decision – now let them enforce it. I’d fight back with everything at our disposal.


Minorities at the Convention

June 21, 2022

In this period when prejudices are being revived even as we celebrated the announcement of freedom on Juneteenth, it may be useful or comforting to see how the Founding Fathers handled diversity.

I was struck by an entry in George Washngton’s Diary for Monday, June 18, 1787 that he “Dined at the Quarterly meeting of the Sons of St. Patrick—held at the City Tavn.”[1] That’s ordinary today but Protestants and Catholics had only recently emerged from centuries of religious wars. Prejudice against Catholics remained strong. That didn’t trouble George, who had several Catholic colleagues and friends at the Convention, especially from nearby Maryland.

Franklin, trying to get the last holdouts to sign the Constitution, told a story that “in their opinions of the certainty of their doctrines … the Church of Rome is infallible and the Church of England is never in the wrong.”[2] He was most concerned by those faiths which “serv’d principally to divide us, and make us unfriendly to one another” and found the “most acceptable service of God was the doing good to man.”[3]

Significant communities of Jews had been living in Pennsylvania and New York since it was a Dutch colony. During the Convention, Jonas Phillips wrote George Washington and the members of the Convention that Jews asked not to be required to take oaths to a faith not their own.[4] The Convention met that request by prohibiting any religious test for any office under the United States,[5] and neither constitutional oath includes religious language, requiring only that the officer take an “oath or affirmation, to support this constitution.”[6]

References to Islamic people, countries and history are sprinkled throughout their work. To make it easier for Muslims from Morocco, known as Moors, to immigrate, South Carolina passed the Moors Sundry Act in 1790, designating the Moroccan Muslim American community as legally white. Apparently their religion was of little concern.[7] The main concern was to populate the country with people who would do the work needed to develop it. And they strove to avoid anything that would discourage immigration.

Both free and enslaved Blacks lived in different states but several delegates to the Constitutional Convention led Anti-slavery societies, beginning the work that culminated in the Thirteenth Amendment seventy-eight years later.

There were eight immigrants at the Constitutional Convention who built successful careers here. Alexander Hamilton, born in the West Indies, wrote many of The Federalist papers. William Paterson, from northern Ireland, presented New Jersey’s proposal, the main alternative to Virginia’s. Robert Morris, from Liverpool, signed the Declaration of Independence, the Constitution and financed the Revolution in between. President Washington appointed James Wilson, from Scotland, a distinguished lawyer and lecturer on law, to the Supreme Court. Thomas FitzSimons from Ireland, was active in the Revolution. James McHenry from northern Ireland, played a major role in the Maryland delegation. William Richardson Davie, from England, was at the Convention representing North Carolina. And Pierce Butler, from Ireland, arrived as a soldier in 1768 but resigned his commission to marry a South Carolina girl, and represented that state at the Convention.

For the votes over ratification, Pennsylvania and Maryland ordered printing the Constitution in both German and English. A Dutch version was printed New York.[8]

Let me add that both prejudice and brotherhood are contagious. Lieutenant Cable told us in South Pacific that “You’ve got to be taught To hate and fear … people whose eyes are oddly made … whose skin is a diff’rent shade ….”[9] We need to set good examples.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on June 21, 2022.


[1] James H. Hutson, Supplement to Max Farrand’s The Records of the Federal Convention of 1787, at 93 (Yale Univ. Press 1987, entry of June 18, 1787).

[2] 2 Farrand 642 (Sepr. 17. 1787) and made clear in his Autobiography that he most admired those faiths which

[3] Benjamin Franklin, Autobiography, available at https://www.gutenberg.org/files/20203/20203-h/20203-h.htm.

[4] 3 Max Farrand, The Records of the Federal Convention of 1787, at 78-80 (Yale Univ. Press 1966, petition of Sept. 7, 1787).

[5] Art. VI, &3

[6] Art. II, ‘1, &8 and Art. VI, &3.

[7] https://talkingpointsmemo.com/cafe/if-charles-pinckney-1780s-southern-politician-fought-islamophobia-we-can-too

[8] https://prologue.blogs.archives.gov/2021/09/09/constitution-day-translating-the-constitution/

[9] https://rodgersandhammerstein.com/song/south-pacific/youve-got-to-be-carefully-taught/


Guns, Prejudice and the Hearings

June 14, 2022

Shooting school children, grocery shoppers or concert audiences raise public demands for gun control. But there’s a deeper problem. Why, so far, haven’t we been able to limit the age of people who can have guns, register guns like we do cars, do background checks on all gun purchasers, deny guns to people who’ve threatened their partners or anyone else, and, especially, limit the power of the guns for sale?

For gun manufacturers and their agents, every gun is just a sale, a source of profit. Each lethal conflict worldwide sells more guns. Don’t expect much moral responsibility from gun manufacturers and traffickers.

But what conflict is the NRA trying to stoke? If not the murder of adults and children in public places, what?

At gun shows you’ll find support for conspiracy theories that are contrary to facts and make no sense – theories so illogical they couldn’t be pulled off even if some wanted to. They’re symptoms of something deeper – racial, religious and ethnic prejudices that make racists feel superior to someone. Racism can be overwhelming at gun shows, among private self-styled “militias” and the gun-brandishing crowd – heaven forbid that descendants of the people brought here in chains should be able to succeed and do well at last. Most of our ancestors weren’t here at the time, but when African-Americans have some success, most of us feel relieved. For racists, however, Black success is the problem.

It gets worse. Another theme at gun shows is freedom from what they call the “tyranny” of having to obey democratic rules. So who are they arming themselves to defend against? They have more than enough weapons to overwhelm our local sheriffs and police and already use them to intimidate local and state officials. Next target – the U.S. They make plain at gun shows their nostalgia for “the lost cause” of the Confederacy. That’s another part of their prejudice. If the South had been able to secede, prejudice and mistreatment of African-Americans would have been legal, supported by segregation, discrimination, violence and intimidation. That’s what brought them together storming the US Capitol – they want to replace the United States with a white nationalist nation, to overturn the Constitution by force and violence, a big reason why the hearings in Washington are so important.

These white nationalists and their NRA enablers are dangerous to all of us because the coup d’etat they’ve been plotting, the race war and civil war they’re trying to stoke, are all extraordinarily deadly. The American Civil War is still one of the deadliest conflicts in the history of humankind as a percentage of the population killed. Racial, ethnic or nationalist civil wars put everyone at risk. And let’s be clear – prejudice runs in packs: white nationalists in this country have aimed at all of our ancestors and their religious and ethnic prejudices are only sometimes hidden.

All of it would destroy the country we call ours. As a classmate described to me, his grandfather, the son of a Confederate officer, told my classmate that he “was glad the Union won the war, so that we had one America and did not have the institution of slavery.” Absolutely.

Those are the stakes, folks. We have to clamp down on the gun lobby, on the people who want the kind of weapons that can be used to wage war and tear this country apart again and who have no compunctions against putting those weapons in the hands of children and people who will kill us and our children in schools, parks, churches, temples and stores. Enough!

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on June 14, 2022.


Defund the Court

June 6, 2022

I mentioned defunding the Supreme Court to a Princeton professor after he moderated a panel on the future of democracy in America. He just sneered. Of course that only made me look closer and double down.

Most ways to deal with the Court take nonpartisan cooperation. It takes both houses of Congress to pass statutes. Because of the filibuster and two DIMOs (Democrats-in-name-only), Republicans have been able to control the Senate. There won’t be much we can do to regain a decent Court until liberals and progressives can regain control of the Senate, despite the inherent Republican tilt of the constitutional rule of equal state representation in the Senate. Nominations that would change the balance of power have zero chance. Enlarging the Court would be a nonstarter for Republicans. No statute would get through that would change the Court’s jurisdiction or protect rights that the Court wouldn’t.

But there are things that one house of Congress can do. Remember that Republicans were able to block paying the national debt until they got what they wanted in return. So let’s say I’m looking for a negotiating ploy. One House of Congress can single-handedly block the Court’s budget. The Constitution requires paying the justices, but it doesn’t say we’ve got to keep the building open, pay for clerks, marshals, heat, air conditioning or circulation, or can’t hand the building  over to a different agency or company.

On a practical level it’s not clear how difficult defunding would make life for the Court. The justices can do their research elsewhere and they can operate without paper. But defunding could make it harder to get cases to the Court or get decisions out of it. It would be a nuisance, and might get through to some of them that they are totally out of sync with democracy, human decency and the American people.

The bigger issue is political. Roosevelt couldn’t pack the Court but succeeded when the Court backed off almost immediately. There’s an argument about why it did or who, if anyone, changed their votes but the Court did back off and, within a few years, Roosevelt had named all nine members of the Court. What I’m looking for is a basis for negotiations or for the justices to back off. I want to imitate the intransigence of the Tea Party and use their unity and intransigence against them. Republicans blame Democrats for not compromising, but let them see what happens when Democrats actually behave the way Republicans do.

That leads to another point. People who despise what this Court has been doing have to build the momentum to knock it off its pedestal. There may be losses along the way but movements need a series of goalposts, votes and things to cheer. An effort to defund this Court strikes me as a step along that path.

Don’t worry about the Court’s legitimacy. The Court has blocked progress for most of its history. Its gun rights decisions now empower the gun lobby’s extremists to refight the “lost cause” of the Confederacy and suppress, or “cancel,” African-Americans. These are serious issues – the Court’s support of gun rights and suppression of voting rights threaten the continuance of American democracy. The Court’s decisions against women’s rights and health sacrifice their welfare and threaten their lives. Only extreme gun-wrongs nativists and extreme anti-women activists could imagine that this Court is legitimate. Forget it. Let’s undermine the Court, lay siege to it, drive them crazy. Then maybe we can build a Court worthy of respect.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on June 7, 2022.


Combatting Racism in America

June 3, 2022

The Israeli paper, Haaretz, reported that Israel had approved construction of some 4,000 units on the West Bank for Israeli settlement. The US State Department condemned the announcement. As University of Michigan Middle-East expert Juan Cole described it, Israel would take “land owned by Palestinian families and bring in squatters from Israel” to settle on their land. Now we learn that Israeli soldiers beat and kicked pall bearers at a reporter’s funeral.

I drafted commentary condemning what happened. And then Payton Gendron killed ten people at a Tops Supermarket in Buffalo. And it’s clear that the racists in this country have been buying racism and murder in all guises filled with made-up conspiracy theories and racial libels. One moment it’s Blacks, the next is Jews, and another moment its Muslims. Actually I was studying that in the 90s and Republicans blocked every effort to investigate the dangerous racism of armed private militias training around the country. Their efforts to block investigation of armed racist groups then and their embrace of racist slander now mean they own it.[1] Patriotic Republicans need to create a new party of patriots which the existing Republican Party is not.

Tut-tut – but what are we going to do about it? Suburbanization and other forms of segregation don’t work – it permitted and even encouraged a reign of intimidation and terror in the formerly segregated South; Israel segregates its Palestinians from its Jews in schools and towns and see how that is solving problems. So what should we do? Take down Trump and all his followers? Then what?

My work has had me focused like a laser on the US Supreme Court? It is a major problem. Yes, but how long will dealing with that take? I’d vote to defund all the expenses that allow it to function like a court – but who’d join me?

Real gun control? We now have an armed population like the places most likely to suffer civil war. In fact the diffusion of guns is one of the stongest indicators of a country about to fall apart.[2] Gendron’s real-time posting of the video of his attack was obviously intended to incite a race war. Some of us have been trying for years to deal with guns. Are we going to hold our breathe?

How about creating liberal militias designed to counteract the armed racist militias? That of course is an invitation to civil war in which the defenders will be blamed for starting it.

Repeal the Second Amendment? The rules for amendments will block that.

National service or restore the draft? That would force people to work together. The military  has dealt with integration more effectively than most American institutions. There has long been a movement for national service. It’s hardly clear if it has a political chance but it is one I would wholeheartedly support – it may be the one response that could change our society for the better.

Each and all of those strategies? Racism and prejudice are universal threats. We have to stamp them out all over or be consumed by them.

Here in Albany, Protestants, Catholics, Muslims, Jews, men and women, gays and straights, Blacks and whites have all prayed together, with each other and for each other’s safety and well-being. That’s as it should be.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on May 31, 2022.


[1] Kenneth S. Stern, A Force Upon the Plain: The American Militia Movement and the Politics of Hate 128 (Norman: U. Okla. Press, 1997)

[2] Unfit for Democracy: The Roberts Court and the Breakdown of American Politics, 175-77 (New York: NYU Press 2016)


Reunions and Social Change

May 24, 2022

Over this weekend I went to my college reunions – it was my class’s 60th. By tradition, we hold a parade. Starting with the Old Guard, we march, or ride in golf carts as we are able, from central campus down to the football stadium. Classes that haven’t started their march, line up along the parade route, cheering the older classes and, of course, we return the cheers to them. There’s a lot of hoopla and college spirit – but there’s more.

When I went to Princeton, it was a men’s school – there were no women in any of our classes. And our graduating class had only one Black classmate – the result of former University and US President Woodrow Wilson’s racist policies. Our Black classmate is a lovely man who’s been a great credit to the school.

As we progress from the oldest to newest classes, we pass the point where the first women were admitted and graduated, and where we can see the results of the school’s decision to end Wilson’s exclusion of Blacks from the student body. The classes lining the parade route were more and more diverse and we welcomed each other with cheers.

We were parading in 90-plus degree weather, so at the end of the route, my wife and I stopped in the campus center to cool off, get some refreshment, and, while using the necessary facilities –  where else – I struck up a conversation with a couple of students of color. As we talked, they wanted to know what I thought of the whole concept of “woke” or “wokeness.” That’s related to awareness of racial discrimination but I can’t define it precisely because it’s meaning depends on the user. It was clear they were uncomfortable with the way it was being used. One of them wanted a simple answer from me like I’m for or against it but his friend encouraged him to hear the more nuanced answer I wanted to give.

My point was that ALL movements go too far – they have to – partly because the more they accomplish the more they have to move the goalposts in order to keep going. And as movements gather adherents, some issues can become harder to discuss. That’s pretty normal human behavior. I’m not going to abandon the cause of equal and civil rights because some people have, in my view, done things that are counterproductive at the expense of the major objectives.

Princeton used to have a student body dominated by young men from the South – a tradition that actually goes back to colonial times. But some of my classmates went south with the Freedom Rides, risking their lives and bodies in busses challenging segregation in the heart of the Segregated and Klan-dominated South. Others, as lawyers, battled for equality in courts around the country. I’ve become increasingly proud of my classmates the more I’ve learned about their efforts. And all our hearts were gladdened as we paraded, seeing wonderful young men and women, of all parental, religious and racial origins, lining the route and cheering us old folks on.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on May 24, 2022.


Abortion and the Alito Opinion

May 17, 2022

I remember my parents discussing, many decades ago, their perception of  Catholic hospitals saving babies in preference to mothers, and Jewish hospitals as prioritizing saving the mother. I haven’t checked whether they were accurate, but the Court’s apparent position on abortion certainly does that. That’s a religious decision and it’s clearly in conflict with Jewish law, for which saving the mother is obligatory.

I don’t subscribe to the common stereotype that abortion is about patriarchy. There certainly are good legal arguments, like those made by Judge Calabresi, that prohibitions of abortion are discriminatory in fact, but that’s quite different from any intent to discriminate. I know many women who feel as strongly about abortion as any man and they are not misogynists or even conservative. Some are friends and some were my students. This is not about hostility to them – they are fine people whom we treasure. They have religious views which I respect, but don’t share, and want to dispute, contest and keep those views out of institutions which have power over those I love and care about. So, for example, I feel very strongly that it is improper for St. Peter’s Hospital to gobble up other hospitals so that it is a monopoly in many communities. Catholics and Evangelicals are themselves divided about abortion, and they and others are welcome to make their own decisions for themselves. But I want to keep official hands off the women we care about.

The Biblical injunction to “Be fruitful, and multiply” was made thousands of years ago when there were fewer people roaming the earth. But to take that injunction seriously several thousand years later one has to assume that God doesn’t change the rules as the world changes, that God hasn’t tried to teach us to update our ways of life, and that God pays no mind to the way that ancient rules have very different effects on the earth and on us now. With all due respect, I view each of those assumptions as blasphemous. What kind of a God would do that? Most people assume an all-powerful and all-knowing God. To assume that an omniscient and omnipotent God would ignore the increasing stress that population increase puts on the earth we share, ignore the catastrophe it’s already causing, and ignore the rapidity with which those harms are increasing, is to assume that God is vicious and unjust, which of course conflicts with what most of us have been taught.

Judge Calabresi, who was one of my teachers and spent ten years as Dean at the Yale Law School, pointed out that there are no generic obligations to make our bodies available to save the lives of another – no obligation to spare an unneeded kidney, bone marrow, or even blood. Women alone are handed the legal obligation to make their bodies serve the life of another under the law of some states. And the Court cares little about the right to life except the unborn. Accurately but tragically, the Court has told us that it has never decided whether it violated the Constitution to execute an innocent person. It’s just the unborn for whom the Court guarantees a right to life.

In other words there is no principle that justifies prohibitions on abortion. Courts work by principles, not by religious maxims, certainly not unless they are embodied in principles, rather than specific judgments about women. I think Roe was poorly worded and poorly explained but it was absolutely right.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on May 17, 2022.


Blaming Biden

May 14, 2022

Nonsense from people who should know better made my blood boil – they didn’t like the news about Alito’s abortion draft and immediately assumed Biden should have done something about it. This isn’t Putin’s Russia and there isn’t a Biden button for every ill. What should or could Biden have done? No clue. But blame Biden – he’s a convenient target and Republicans would much rather you blame him than them – it’s their talking point.

How about blaming Senators Joe Manchin and Kyrsten Sinema for refusing to support repeal of the filibuster to protect women’s rights, pass Voting Rights legislation or most of Biden’s agenda? How about blaming the fifty Republican Senators who bound themselves to fight each and every thing Biden tries to do lest he get any credit? Republicans want you to blame Biden for their own misbehavior. If we accept that nonsense we deserve the results.

Sometimes presidents can shape issues so that legislators have little choice. But on nationally polarized issues like abortion, that’s almost impossible. And on issues of partisan advantage like voting rights there are strong pressures on recalcitrant legislators to vote their personal interest. It’s not clear the president has anything to offer them. On less polarized issues a few legislators may be moved by bribes, programs or judgships he can offer them? A Judge appointed by President John Kennedy called me to ask if I’d like to know why he hadn’t decided a case? Any decision had to favor my clients. But he didn’t want Missouri to have to pay or my clients to benefit. I hope Kennedy got a LOT for appointing Meredith. Caro’s biography of Lyndon Johnson made clear that LBJ also used a lot of blackmail. How far should a president go? On which issues? Should Biden nominate another Alito or Kavanaugh in the hope of a Republican vote?

I believe Joe Biden is doing the best he can under the political circumstances, and so was President Obama. A president can’t do whatever he or she wants without strong political backing.

President Kennedy feared and opposed the March on Washington in the summer of 1963. But after he was assassinated, President Johnson and Martin Luther King worked together for civil rights legislation. Johnson made clear that King had to organize and push Congress, push Johnson, push the Senate and the House, to pass the legislation they wanted. Getting the legislation over the top required strong public support. Johnson could take care of the legislative politics if he got King’s help building the national momentum for the bills that resulted in the major legislative accomplishments of the Civil Rights Movements – the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Getting cynical is not an effective strategy to get done what we want government to do. The public role didn’t and doesn’t end on a single election day. Some of the best minds in America are focused on trying to bring about that public support. Picking up our phones, writing letters, meeting with our representatives, signing petitions, and, especially in this context, supporting and campaigning for good candidates across the country are all parts of our political job. The last thing we should do is let political trouble-makers cast blame on President Biden or anyone else for their own misdeeds.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on May 10, 2022.


I can’t resist

May 13, 2022

To the Mickey Mouse tune, all together now:

It’s Triskaidekaphobia Day,

It’s Triskaidekaphobia Day,

It’s Triskaidekaphobia Day,

Whoopee.

🙂


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