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.


Milestones update – 1/5/16

January 5, 2016

January 5, 2016

NYU Press tells me that Unfit for Democracy will be available in book stores on January 8.

I will be talking about the book and the issues it raises:

  • with Joe Donahue on the WAMC Roundtable, Jan. 25, 2016 at about 11:10 as a preview to the program at Albany Law on the following day, 90.3 FM
  • with Alan Chartock, CEO of WAMC, at Albany Law, on Jan. 26, 2016 at 1 p.m., for airing later, open to the public;
  • at the Humanities Institute for Lifelong Learning, on Wed., March 23, 2016 in Delmar, NY, at 1:30 p.m. This is listed as members only but they may open it up later – I’ll keep you posted;
  • at the Book House at Stuyvesant Plaza on March 24, 2016 at 7 p.m., open to the public;

and I will be taking part in related discussions at:

  • the Schmooze at the University of Maryland School of Law on March 4-5;
  • the Demos Convening on May 24-25 at the University of Pennsylvania.

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

Meanwhile, a very Happy New Year and all good wishes,

Steve


Muslims and the barbarians laying claim to Islam

January 5, 2016

 

President Obama commented a few weeks ago that Muslims in America must do more to stop Muslim violence and many have suggested that the Muslim community has not been doing enough to stop it.[1] That struck me as very false, given my own contacts in the Muslim community. So I reached out to learn what is happening in the Muslim community.

All communities have their share of nut-jobs and criminals but that is no more true of Muslims than the rest of us. Several white self-styled Christian groups have been much more dangerous to Americans. Muslims point out that the much larger phenomenon of non-Muslim violence has not been treated as reason for shame by members of other religious groups.[2]

Muslims repeatedly point out that the ideology of ISIS, ISIL, DAESH or whatever we call it, is out of step with Islamic practice and preaching here and around the globe, un-Islamic and fundamentally heretical. There are always exceptions, but generally fighters are not being nurtured in the mosques. In fact ISIS recruits typically do not start with any strong Muslim or other religious faith – they are empty inside looking for a cause.[3]

Muslims warn that nationalism fuels violence. We talk about reaction to “boots on the /ground.” Muslim scholars make a broader point, here in Arun Kundnani’s words:

“We all know the ‘war on terrorism’ kills more civilians than terrorism does; but we tolerate this because it is ‘their’ civilians being killed in places we imagine to be far away. Yet colonial history teaches us that violence always ‘comes home’ in some form: … as refugees seeking sanctuary … the re-importing of authoritarian practices first practised in colonial settings, or indeed as terrorism. The same patterns repeat today in new forms.”[4]

Moreover we are confused about who the enemy is. There is considerable evidence that Saudi Arabia was behind the development of ISIS as an effective fighting force precisely to draw America into support of Middle Eastern dictatorships and to quash the Arab Spring. I think there are many factors that gave rise to ISIS and plenty of blame to go around, but they did quash the Arab Spring, whatever chance that awakening might have had, and Saudi Arabia and other Sunni states did help bring ISIS into being.[5]

Muslim scholars and commentators argue that revolution and revolutionaries are spawned by failure to adhere to western ideals, support for authoritarian rulers, bombing by planes, drones and other military attacks that kill civilians and leave communities in shambles, and by trading arrangements that support slave labor in many parts of the globe.

As Chris Giannou, former chief surgeon for the International Committee of the Red Cross, told the Alternative Radio audience, Muslims, Arabs, Asians, Africans “love [Americans] for your values. They hate you for your hypocrisy, because you do not live up to your values. The vast majority of the American public has absolutely no idea of what their government does in their names around the world.”[6]

Telling us what they think we want to hear is an occupational hazard of politicians – that’s how they get elected. But Americans need to see through self-congratulatory claims about how good America is and how bad everybody else is, and resist the call to solve every problem by killing ever more people. It’s not good for our security, our country or our the world. It is crucial to resist the urge to enlarge this conflict, crucial to keep it as small as possible. That’s the best way to put it out with the least damage.

— This commentary was broadcast on WAMC Northeast Report, January 5, 2016.

[1] See President Obama, Address to the Nation, December 6, 2015, https://www.whitehouse.gov/the-press-office/2015/12/06/address-nation-president.

[2] http://www.salon.com/2015/12/09/my_daughter_is_not_tashfeen_malik/.

[3] See Murtaza Hussain, Why the Islamic State is Not Really Islamic, The Intercept, Sep. 26 2014, 12:38 p.m., https://theintercept.com/2014/09/26/isis-islamic/.

[4] Violence comes home: an interview with Arun Kundnani, OPENDEMOCRACY 22 November 2015, https://www.opendemocracy.net/arun-kundnani-opendemocracy/violence-comes-home-interview-with-arun-kundnani.

[5] See the remarks of Vice-president Joe Biden at https://www.youtube.com/watch?v=25aDP7io30U; Ron Paul, , Are We in a Clash of Civilizations?  [RonPaulLibertyReport] https://www.youtube.com/watch?v=opYwBt9x64k&t=2m28s; Khaled Abou El Fadl, The End of the Arab Spring, the Rise of ISIS and the Future of Political Islam, ABC Religion and Ethics 23 Apr 2015, http://www.abc.net.au/religion/articles/2015/04/23/4221874.htm.

[6] See Chris Giannou, Understanding the Middle East, University of Denver, Denver, Colorado 4 April 2014, Alternative Radio, http://www.alternativeradio.org/products/giac002.


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