For Ruth Bader Ginsburg

September 29, 2020

I dearly wanted to talk about Justice Ginsburg last week. But because a family member needed my help it was impossible. There are new issues, but Ginsburg, a Justice who actually believed in justice, is worth a few more words.

Ginsburg was one of the few members of the Court whose legacy as an attorney was as important as her legacy as a justice. Ginsburg often fought for women’s rights by fighting for men’s. Fighting for equal rights is fighting for both.  Her insight about how to fight for women’s equality wasn’t obvious and some feminists disliked it. Catherine MacKinnon famously said Ginsburg’s strategy meant getting women what was important for men. But it was doable and created the legal foundation for many feminist advances.

Ginsburg’s battle for women’s rights built on Thurgood Marshall’s battle for equality – his clients just wanted the same rights as other people. And just as Marshall was able to pivot from separate but equal to separate is unequal, Ginsburg was able to pivot from the same rights to equivalent rights, by changing the field of vision. Marshall could eventually argue for the equal right to participate, mingle and network. Ginsburg could eventually argue for women’s health even though men’s and women’s bodies and illnesses differ. The issue could never be which body part we were going to rescue from cancer. She could move on to arguing for jobs and education for women. The law builds on small steps. Without small steps, law often stops short. Ginsburg’s work, running the women’s rights project of the ACLU and fighting for male as well as female clients, brilliantly exposed the inequality of law toward women and made it unacceptable.

Some people think if you’re for women or African-Americans you’re against everyone else. Ginsburg was for justice. On the Court she became a leader in the fight to treat African-Americans equally and for affirmative action to include them despite the segregation, violence and financial abuses that repeatedly took the fruits of their successes away. She also fought for workers’ rights, for the jobs of people injured or fired, for their rights to organize. Ginsburg championed the rights of the nation’s working and vulnerable people, of all colors, backgrounds and gender.

She also understood how the argument for equality can be turned against women as it has been turned against African-Americans, by treating remedies for mistreatment as unequal injuries to everyone else. Some people balk at efforts to create equal opportunities for others but Ginsburg never lost sight of justice for all, understood that the battle for equal concern and respect had never been won, and fought to give everyone the opportunity to contribute to our world to the best of their abilities.

It seems impossible for many people to understand that we are all better off sharing than fighting. We – you, me, the great mass of working people of America and the vulnerable too – are all better off when everybody contributes – the economy, the opportunities, the jobs are bigger and better. Consumers buy more and contribute more. Legal, scientific and commercial breakthroughs benefit us all. Ginsburg’s legacy, like Einstein’s, isn’t limited by gender or faith. Their contributions changed all our lives as well as America’s position in the world.

In Jewish tradition, people live on in memory. Ruth, we’ll never forget you.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on September 28, 2020..

The alt-Stinkers Steal Black Lives Matter Signs

September 25, 2020

First the complaint about having to see it. Then the sign taken from Temple property. May the thief rot in you know where.

Of course, Black lives matter

September 21, 2020

I was on a Mohonason panel, talking with students about the Civil Rights Movement. The panel included Reggie Jackson, an African-American folk singer who sang on the front lines of the iconic demonstrations, his friend, Greg Greenaway, a southern-born white deeply committed to civil rights, and Nell Stokes, an activist raised in the segregated South before moving here and spending her life fighting for freedom. I have enormous respect for all of them. I was invited because I walked over from my apartment to the March on Washington where Dr. King delivered his I Have a Dream speech, and because I worked on civil rights in several legal offices.

We concluded by talking about what to say when people disparage African-Americans. I responded that I talk about Frank.

Frank died a few years ago. Before I knew him or even that he was Black, I listened to West Virginia DAs trading stories about how good a lawyer Frank was. A few days later I met Frank, a colleague at the West Virginia College of Law, respected statewide, eventually on the state Supreme Court, whose books on West Virginia law were the bible for state lawyers. The Cleckleys and Gottliebs got together many times. When the Department of Justice recommended him to President Carter for appointment to the Fourth Circuit, Frank didn’t want me to tell anyone that he believed his ancestors were slaves on the plantation of Rosalind Cleckley Carter’s ancestors – he wanted the job on his merits. Carter made a more political choice.

Though respected throughout West Virginia, Frank never felt safe traveling around the state to defend people. And Frank told me his brother had been shot in the back by a policeman in Cleveland. But Frank couldn’t protect his brother. For a Black man, a flashing light in his rear window raises the question whether he will survive the encounter or die on the street. You and I don’t feel that. But every hair triggering fear, every assumption of bad intentions, is stacked against a man with Black skin.

In dealing with prejudice, it doesn’t help to say that kind, capable, hard-working, people come in all colors. So, I talked about Frank, trying to make a dent.

I can talk about kind people, capable people, hard-working people. I don’t know what it takes to make a dent. Barbara Morris was a fighter when necessary. She ran the legal staff of the NAACP in New York City and threw me some of the toughest legal questions around. The organization was facing very serious challenges. It took the profession, not just me, another decade to figure out answers to what she was concerned about. She also gave me excellent advice about planning my legal career. But she had to fight just to get a decent apartment. She was Black and a woman. Not good enough for an apartment.

Marttie Thompson grew up in Mississippi, started law school but, lacking the money to finish, clerked for the bar, which meant he worked in a lawyer’s office and learned on the job. I often represented Marttie at meetings and saw the respect people had for him. But Marttie refused to join the Board of the bar association dominated by New York’s major firms because it was so recent when they finally admitted African-American lawyers as members. Later, Marttie became Regional Director of the federal office supervising many legal services programs. He tried his best to make his life matter.

Justice Sandra Day O’Connor agreed to keynote a conference I was organizing here when John Baker became dean. Every Albany lawyer wanted to be at the dinner with her, overwhelming original plans. The Board wanted John to let everyone come and I wanted to keep it for the participants. John and I immediately did battle but emerged close friends. He introduced the first course at the law school on not-for-profit corporations – dealing with the world of museums, theatres, and organizations trying to provide for all the things government refuses to take care of. And he himself volunteered regularly. John tried to make his life matter.

All of them were kind, decent people. What else does it take before one’s life matters? Of course, Black Lives Matter. And because they are so often targeted by bigots, it’s important to say that.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on September 22, 2020.


Kleptocracy’s Long-Term Consequences

September 18, 2020

America, until recently, was one of the world’s cleanest places to do business. You didn’t have to pay people off to do what you wanted – indeed you couldn’t. Regulation was not about having a handout – it was about protecting the public. Public servants weren’t allowed to take anything for doing their jobs – from the president on down. Your job was your job. Taking anything was corrupt.

That’s changed. The power of campaign contributions helped undermine the moral spine of the American economy. Lobbyists and campaign contributors who spent enough on campaigns got huge perks for their companies and stuck the costs to you. The gains are enormous. You and I would be happy with 5-20% returns on investments. Kevin Philips calculated returns to investments on large campaign contributions ranging from 5 thousand percent to 1.4 million percent.[1] Pretty good for a day’s work.

Trump compounded that. He made it clear that everything was up for sale, up to and including American foreign policy. Americans didn’t understand the two-century old language of the Constitution and had no understanding of the significance of the emoluments clauses. Those clauses said simply that America is not up for sale. Corruption is a crime and presidents must be above it. Yet Trump was ready to bend American foreign policy to reward the Russians – so grateful was he for their illegal help in the campaign that he virtually took apart the free world that had been a thorn in Putin’s side. Trump has also been prepared to ignore all sorts of damage to public health from toxins in the air, water, food and drugs in order to please his contributors. Just please keep the money flowing. And stay in Trump properties. Anything to publicize Trump properties.

The consequences are visible all around the world. People live well where government stays on the up and up.[2] People live in poverty where the government is corrupt. Democracy does not survive corruption.[3] When everyone is on the take, no institutions are reliable.

It was obvious in Iran. They had very well-trained people but never mind trying to get anything done. You need what they called parti, what we call influence. Projects that were supposed to be built waited years or decades until someone who cared and had the necessary connections demanded its completion. Sometimes, in the years I was there, projects awaited the Shah’s imminent arrival when they would suddenly be done so he could see it. But how many projects could the Shah check on himself.

Corruption is the beginning of the end. When everything is up for grabs, nothing important to the country’s welfare gets done. Some people call that capitalism, but when capitalism lives without boundaries, the people live without, and the country flounders. It loses all the sinews, infrastructure, education, training and research that make the country strong. Conservatives once understood that. But Trump’s people aren’t principled – thieves couldn’t care less.

Conservatives kept yelling “Love it or leave it” in the sixties and seventies, meaning don’t try to fix it. But if we don’t fix the corruption you can say good-by to America as number one anything. We’re on the downward slide, where the slope is very steep, and when you hit bottom there are no handholds left to climb back out. That America is not great or number one; that America is a third world laughingstock – you thought you were so great, but look at you now.[4] And none of us will live well except maybe the tenth of the one percent.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on September 8, 2020.

[1] Kevin Phillips, Wealth and Democracy 326 (2002).

[2] Adam Przeworski, Democracy and Development: Political Institutions and Well-Being (2000).

[3] Bruce Bueno de Mesquita and Alastair Smith, The Dictator’s Handbook: Why Bad Behavior Is Almost Always Good Politics (New York: Public Affairs, 2011); Bruce Bueno de Mesquita, Alastair Smith, Randolph M. Siverson and James D. Morrow, The Logic of Political Survival (2003).

[4] Let me recommend Rex Smith, “Is this what our collapse looks like?” Albany Times Union, Sept. 5, 2020, A7 for an excellent discussion from a complementary perspective.

Hitler’s revenge

September 18, 2020

Hitler’s revenge lives in the White House, committing treason.

Are you better off than you were four years ago?

Are you in the 0.1%

Beware the traitor’s call for “patriotism.”

What’s So Scary About Government Programs?

September 14, 2020

Every economist understands that there are some things a capitalist economy won’t do for us. I won’t bore you with the technical reasons, but there are lots of things that depend on government. Trump and his Republican friends assume that calling them socialist will scare you away. Let’s understand that their claim is flawed from the get-go because public health, Armed Forces, police, fire departments and many others are all socialist in that sense. The interesting question is why they are trying to tar the programs they call socialist?

The answer is simple – money for them and their much too rich supporters. If we had no postal service, their rich friends could deliver letters and packages to us at a much higher price. It bothers them that the Postal Service can do it cheaper, but it bothers them even more that their friends don’t get the money. The Postal Service siphons business from commercial carriers of letters and packages.

Why don’t Republicans like Social Security? You could buy yourself a retirement insurance package, except that it would be much more expensive, and it wouldn’t be guaranteed, but friends of Republicans would get the money. Some of us also care that some people who live paycheck to paycheck couldn’t even buy themselves retirement insurance, let alone disability insurance and the other things Social Security covers.

Trump and his Republican allies want to keep downsizing the Center for Disease Control, the Food and Drug Administration, and the Federal Trade Commission, so drug companies could go to town without federal regulation to protect us. The things they sell us would be cheaper to make if they didn’t have to test them to see if they work. They’d prefer we go back to the era of snake oil. All that means more money for Friends of Trump and Friends of Republicans. That’s corrupt – taking private advantage from stripping government programs that benefit us.

The Weather Service is anathema because private companies could do that. They didn’t, of course. It took national investment to set up all the weather instruments on land, water, in the air, and up in space. But now that the public has made all those investments and dedicated people did it very well, Trump, Republicans and their well-heeled friends want the money they could get from everything the Weather Service created with public funds.

Obamacare is another. The Obama Administration got the insurance companies behind them because Obamacare expanded their market, but Obama’s coalition couldn’t get a public option because there wasn’t anything in a public option for Republicans and their well-heeled friends. Apparently, Republicans would rather that sick people die.

Unemployment insurance gives people a chance to find a decent job, not just whatever unlivable wage they’re offered. If we become serfs as in the Tsar’s Russia or wage-slaves here, it will undercut all our salaries. Guess who that helps?

Free public schools give people a chance. But private owners want to siphon ever more money out of the public system, and to undercut teachers’ pay besides. Quality? You must be joking. Without public schools you’d be subject to the tender mercy of private owners, like the people who tried to learn something from Trump’s fraudulent academy. And many couldn’t afford any education. Uneducated Americans wouldn’t have a chance and would have to accept the most meagre survival wages and the longest hours to serve the crudest bosses. That’s what it’s all about – money and power.

So, when Trump and Republicans attack programs as socialism, understand the fraud behind their message. It’s all for them and their friends. They’re not interested in protecting us or a chance for a good life for ourselves or our kids.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on September 15, 2020.

Real Patriots

September 2, 2020

Real patriots pitch in.

Real Americans pitch in to protect America’s beauty, climate, air and water;

Real Americans pitch in to protect life, liberty, equality, justice;

Real Americans pitch in to protect government of, by and for the people;

Real Americans pitch in to help each other, from California, to the New York Island; from the Redwood Forest, to the Gulf stream waters;

Real Americans pitch in to protect each other from violence and disease;

Real Americans respect each other, celebrate each other’s arrival for a better life, and how we all enrich our country;

Real Americans help out; and

Real patriots pitch in

The jerk in the White House is a scaredy cat

September 1, 2020

Are you scared of placards? Trump is scared of placards.

The jerk in the White House doesn’t know the difference between placards and weapons.

The jerk in the White House is a scaredy cat, scared of lettered cardboard.

Yes, pass it on.

What about those demonstrations?

August 31, 2020

The Black Lives Matter movement is being waylaid by provocateurs and others who want to use the opportunity to loot stores or, as one hoodlum did, shoot people on camera and then, apparently craving notoriety, tried to give himself up to police who ignored him because he’s white and they were convinced all bad things are black.[1]

That’s part of the reason Martin Luther King was so determined that his people be completely nonviolent. People like John Lewis had their heads cracked. Four little Black girls were blown up in their church. Emmet Til and lots of others were murdered, including white people working in solidarity with the African-American population struggling for freedom. How many murders, how many lynchings does it take to convince people that the African-Americans were innocent victims, not perpetrators.

Thousands of people were killed and lynched. Do we have to go through that again. We’re taught the police are brave. How brave do you have to be to shoot people in the back? How brave do you have to be to shoot a woman asleep in her bed, or a man putting his key in his door, or keep a knee on a man’s throat as he dies? None of them were armed. But seven shots paralyzed Jacob Blake. 41 shots killed Amadou Diallo – who never had a chance or a weapon. Abner Louima was attacked and sexually brutalized by police. When will it be enough? When will it ever stop?

We’re told there are good cops, that most cops are good cops. I’d be delighted if they’d act the part, if they’d stop the bad ones from committing murder, if they’d participate in drumming people like that out of the force. One former policeman in our area came here to live because he had exposed massive corruption in the New York City Police Department and, regardless of those supposedly good cops, cops drove him out of town, initially by attempted murder. Where are those good cops when we need them?

Where people aren’t allowed to protest in peace, they may have to find a different way to protect themselves while making their point. Perhaps they’d do better putting Black Lives Matter t-shirts on everyone and circulating on busy streets without congregating or waving signs. Perhaps they’d do better using the time working on the election. Do Trump, and other bigots, with and without guns, have to be driven out of power, before it’s possible to deal with the real violence? There’s what’s called a ground game to be fought to win this election – letters, calls, information, rides – lots of organizations are working on it and lots of people are trying to help out. People of color need friends in high places to get what they deserve. Martin Luther King was in league with President Johnson – King was the greater man but Johnson had the power. Perhaps the demonstrators would do better to skip the streets and take the White House. Perhaps that would deny Trump and the hoodlums who support him anything to scare people with. Perhaps going for votes would outfox them and put the truly violent elements in our society in their cages.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on September 1, 2020.

[1] CBSN, Chicago, reported: “As for Rittenhouse showing up with his hands in the air, appearing to turn himself in, the sheriff said officers did not realize what he was trying to do.”

Health Law Arrogance

August 24, 2020

There’s so much to talk about, but let’s go out for a walk or step into a shop. Unfortunately, some people pugnaciously claim the freedom to ignore health laws.

In 1824, the earliest discussion I know of by the U.S. Supreme Court, Chief Justice Marshall delivered the Court’s opinion that states have the power to protect the health of the people with “Inspection laws, quarantine laws, health laws of every description….” He added that the constitutionality “of the quarantine and health laws … has never … been denied.” And he continued that they “flow[] from the acknowledged power of a State, to provide for the health of its citizens.” Some states do that well and some badly, but Marshall’s point was that they have the power to protect their people.

The freedom to behave in ways which violate health laws and risk the health of our fellow citizens is purely selfish and unsupported by anything our forefathers fought for or wrote in our constitutional documents. Chief Justice Marshall’s decision nearly two centuries ago remains the law of this country.

Too many people corrupt the notion of freedom into the freedom to do whatever they want, no matter the risks to others. It has never meant that. That corruption survives only as an index of some Americans’ lack of public spirit.

Americans have lost an understanding of the seriousness of freedom. It was never about trivialities when government has a reasonable basis for regulation. Could you claim that you should have the freedom to risk your own life by ignoring a red light? Should the engineer have the right to nap in the cabin with the train in motion? Even if he wanted to commit suicide or didn’t care if he were killed in his sleep?

Republicans used to talk about responsibility. They were talking mostly about social conventions, particularly sexual ones. Responsibility to others lost its appeal to Republicans as law began to impose obligations in the Progressive Era at the end of the 19th century. Law made corporations take responsibility for working conditions. Law allowed regulation of monopolies like telephone and power utilities.

Responsibility to others certainly involves costs – costs to spot and deal with poison in the waste and garbage dumped by companies; costs to deal with dangerous equipment in their shops. Protecting people from behavior that could cause damage or injury can certainly feel like a nuisance to the companies.

But with that kind of attitude at the top, no wonder that ordinary people claim the same privilege of ignoring harm to others. So-called “free marketeers” claim that privilege for their companies although their economics has long since been discredited. But now lots of people claim the right to behave without concern for the consequences for anyone else. I think Steven Pinker’s book The Better Angels of Our Nature: Why Violence Has Declined, was premature because it looks like we’re going backwards. Violence may have declined, but the Court has now authorized us to carry guns and, though still with limits, backed the ideology of the free-marketeers, the Tea Party, and the guns rights lobby that they can do a lot of what they want.

Liberalism was always about a world where everyone is free, but it was never about irresponsibility. Republicans once believed that we all have responsibilities. Being an American is about more than waving flags; it’s about showing up and helping out.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on August 25, 2020.

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