The World Beyond the Tweets

July 25, 2017

News media look for succinct sound bites that encapsulate one’s message. Even so, Bush simplified political language considerably. Things were good or bad, the right or wrong thing to do. When Al Gore confronted him with carefully researched numbers, Bush simply responded that Gore’s was “fuzzy math.” That was a put-down; not an explanation. It gave people no reason to agree or disagree except the bare fact that Bush used a put down.

Even Bush tried to explain some issues in order to get public support. Unfortunately, the weapons of mass destruction claim was false, despite the lengthy explanation and pictures.

Trump clearly learned from Bush. He’s all about unsupported sound bites.  That’s why tweets work – there’s no room for explanations. The world, however, is more complex, and short tweets allow Trump to keep changing the subject, burying thoughtful responses behind a flurry of new issues.

That brings me back to two basic points: First, what he’ll do for you can’t be limited to a tweet. Behind his tweets are claims about what causes what, how things will happen, for whom, whether he will follow through or ever meant to. His tweets bully us to listen only to him, though there is nothing backing his claims. That is truly talking down to the American people, talking to us as if we can’t and don’t need anything to back up his claims.

My second basic point is that the world is more complex than a tweet.

Global warming will be expensive, forcing us to repair or rebuild infrastructure, care for the injured, leave flooded lands and rebuild homes, business, industry and the lives disrupted. It has bred extremism, disease and refugees in Africa and the Middle East by drying fertile land, burning crops, salinating and flooding coastal lands.  Yet Trump backs away from everything that would make it more manageable.

Trump claims global warming is a hoax. But the chemical and physical process by which carbon and methane trap heat and how much heating they force is very well established. Scientists have been measuring atmospheric changes in those greenhouse gasses and changing temperatures on earth with a variety of techniques. They’ve measured the loss of the Arctic and Antarctic ice shelves. So many studies by so many scientists have examined the problem in different ways that their consistent conclusions simply make Trump look like a fool, a sucker or a misanthrope.

One can willfully ignore climate change but the climate doesn’t ignore us. Even now, it’s making refugees of many island nations peoples, pushing families out of their homes in exposed areas of Hawaii, Alaska, New Jersey and Long Island. The climate is aggravating the refugee problem in Africa and creating serious problems for the free world. Storms have hit towns and cities across the country with a fury beyond living memory. Don’t be fooled by the receding waters after Hurricane Katrina made refugees out of New Orleanians and Hurricane Sandy brought New York City to a halt by flooding its subways. Those storms revealed how close we are to creating millions of refugees in our own country and destroying trillions of dollars of investment, jobs, and transportation networks that nourish our entire economy. Trump may ignore it. We can’t.

Leaders who understand the world in its complexity are crucial to our very survival. Like the Founders of America, I think immigration is a net plus, but I understand the feelings of social and economic dislocation. Aggravating the flow of refugees, however, sharpens those feelings of injury and is threatening the very institutions that have united and protected the free world since 1945. Yet Trump’s policies will aggravate the refugee problem and its consequences. This is a very dangerous game, whatever his reasons.

— This commentary was broadcast on WAMC Northeast Report, July 25, 2017.

 

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Super Precedent or Too Big to Lose

July 18, 2017

It was difficult to sit through all the sanctimonious claims of doing law by adhering to precedent by a succession of Supreme Court nominees and then read its decision in BNSF R. CO. v. Tyrrell in which the Court overruled International Shoe v. State of Washington. Senators have been grilling the nominees for years about adherence to precedent. We heard about ordinary precedent, long standing precedent, and precedent that has been used and cited numerous times.

International Shoe was decided in 1945 by legendary justices. Chief Justice Harlan Fiske Stone wrote the opinion. He was joined by Justices Douglas and Frankfurter, as well as justices Reed, Murphy, Rutledge and Burton who are less well known to the general public. There were no dissents. Justice Hugo Black concurred on the ground that the attack on the jurisdiction of the State of Washington was so frivolous it should have been dismissed out of hand. Justice Jackson was a member of the Court but recused himself and took no part. Effectively it was unanimous.

If ever a case was used and relied on it was International Shoe. Lexis, a legal database reported that International Shoe had been cited by nearly 22,000 judicial decisions at all levels of the American legal system, plus some 13,000 other sources. It showed no negative treatment.

International Shoe provided that companies could be sued either where the claim arose or where they did sufficient business to make it fair to sue them there.

Montana’s Supreme Court held that the defendant corporation could be sued in Montana “because it has over 2,000 miles of railroad track and employs more than 2,000 workers in Montana.” It other words, the company is quite busy in Montana. But the U.S. Supreme Court held that the corporation could only be sued at its home office.

In their freshman year, law students are drilled on International Shoe. Endless pages in textbooks are devoted to International Shoe. A pretty important decision indeed. But the Roberts Court didn’t like it.

Justice Sotomayor, as she often does, explained:

The majority’s approach grants a jurisdictional windfall to large multistate or multinational corporations that operate across many jurisdictions. Under its reasoning, it is virtually inconceivable that such corporations will ever be subject to general jurisdiction in any location other than their principal places of business or of incorporation. Foreign businesses with principal places of business outside the United States may never be subject to general jurisdiction in this country even though they have continuous and systematic contacts within the United States. … What was once a holistic, nuanced contacts analysis backed by considerations of fairness and reasonableness has now effectively been replaced by the rote identification of a corporation’s principal place of business or place of incorporation.  The result? It is individual plaintiffs, harmed by the actions of a farflung foreign corporation, who will bear the brunt of the majority’s approach and be forced to sue in distant jurisdictions with which they have no contacts or connection.

In other words, these companies are too big to lose. The more places a company does business, the further it can make plaintiffs travel. Even if plaintiffs can get to court over the hurdles placed by this Court, they will have to sue far away in unfamliar places. No barrier is strong enough to protect those companies which are already wealthy enough to give back to the society that protects them.

These cases have been decided under the Due Process Clause of the Fourteenth Amendments. The word “due” means appropriate. It is an invitation to craft a jurisprudence that maximizes fairness to the parties. But the Court has been going the other way, grounding judicial power on happenstance, not fairness.

The Roberts Court is not doing law. Instead it has its own economic policy. It doesn’t seem to have noticed that voters in both parties have been demanding populism in economic policy. But who elected the Roberts Court?

— This commentary was broadcast on WAMC Northeast Report, July 18, 2017.

 

 


Should We Have a New National Constitutional Convention?

July 11, 2017

There have been calls for a new national constitutional convention. They are generally cast as calls for a convention to do something specific, rather than open-ended authority to propose changes. There is an argument about whether those calls fit the constitutional definition of state initiated calls for a convention and what such a convention might do, But clearly many states think they are valid and have proposed a new convention. Indeed such calls may be only a few states shy of the required two-thirds of the states, depending on how many calls are deemed valid. So I think we should talk about it. I’ll spare you the technical argument and focus on the issues.

It should be noted that small states have disproportionate voting power in the amendment process because it is based on the number of states agreeing to amendments, not the number of votes in the states which agree.

Conservative proposals to amend the Constitution suggest that they’d use a national convention to repeal the Supreme Court’s decisions on social issues like abortion, marriage, gay rights, religion, prayer, flag desecration and segregation. And some conservative proposals would cripple the national government with states’ rights amendments, like a balanced budget amendment, repeal of the income tax, mandatory revenue sharing, and letting states veto increases in the national debt. Other conservative efforts have included reinstituting state legislative selection of U.S. Senators, and reversing progress on school integration.

Liberals can use conservative proposals to scare liberal state legislatures away from calls for a new national convention, or they can try to scare conservative state legislatures off with liberal proposals.

Liberals proposals focus on equal rights and equal votes such as the Equal Rights Amendment, abolition of the electoral college, full representation for the District of Columbia,  and overturning Citizens United. There’ve been calls to abolish the death penalty. Liberals should also fight for a Black Lives Also Matter Amendment to hold public officials responsible for the harm they do and overturn exemptions and immunities that leave decent, unarmed Americans lying dead on our streets with no one “responsible.” Liberals should fight to remove rules that allow prosecutors to ignore constitutional obligations of fair play, rules that  immunize them from any responsibility for vicious and discriminatory behavior.

These very different visions reflect both core moral commitments of each side and tactical considerations. Neither liberals nor conservatives accept the bona fides of each others’ proposals. Worse, competing interpretation of the provisions of the Constitution for calling a new convention could deepen conflict over the legitimacy of whatever a convention produced. And I doubt we’d end up with a better country.

Nor does the problem ends there. The original substitution of the Constitution for the pre-existing Articles of Confederation “illegally” ignored the rules for change spelled out in the Articles. So suppose populous states now similarly announced they were forming a government to go into effect when a majority of the public agrees – a possibility with some academic support. By contrast to continued conservative admiration for Confederate traitors who made war on the U.S., that would be a relatively honorable route toward a new Constitution.

But the larger point is that a conservative attempt to make major changes followed by a strong liberal response could br dangerous. Competing constitutions once led to violence in Rhode Island and in Kansas. Violence, as we’ve been discovering in many countries in recent decades threatens democracy whenever armed groups refuse to put down their arms.

So I’m not confident that a new convention would improve the Constitution, solve problems among or unite us. I don’t think it’s a good direction to travel.

— This commentary was broadcast on WAMC Northeast Report, July 11, 2017.

 


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