God and Texas

August 29, 2017

I mentioned to Ian a couple of weeks ago, as I was preparing to take a brief vacation, that I thought I had enough commentary ready for a couple of months. Ian just smiled and said it might depend on what happened. He didn’t mention a biblical flood in Texas.

There are many ways that we each address what is going on in the world. One of those is through the lens of religion. So is there a religious perspective on the flood in Texas? Of course. One could just build an ark and pray but really the religious perspective is much deeper and more important. God has set up the mechanisms that have turned human abuse of the earth’s environment into global climate change. Floods are part of the punishment for our carelessness with our natural heritage.

Notice that there is nothing in a religious perspective which contradicts a scientific one. Many scientists, religious themselves, describe their own work as trying to understand God’s work. Whether you or they think about the consequences of carbon and other greenhouse gases in our atmosphere through a religious lens or not, the results are the same. The world gets warmer and one of the consequences are storms of biblical proportions.

Biblical? A body of water the size of Lake Michigan now covers a part of Texas and the storm is far from over, still bringing waters from the Gulf and dumping them on Texas. That’s biblical. Lake Michigan is huge, over three hundred miles long and more than a hundred miles wide. Lake Michigan reaches a depth of nearly a thousand feet – I hope that doesn’t happen in Texas but parts of Texas have already had more than four feet of rain fall on them in just a couple of days and the rains still fall.

This is just one of many storms and floods that have inundated parts of the country from New York to Texas. We have a president that pulled us out of a worldwide climate agreement and scoffs at climate change. And yes it is a matter of personal as well as political responsibility. We can limit the damage by our personal behavior. And our elected leaders, can limit the damage by facing and dealing with the ways that America contributes to the changes in the environment, and the ways that America could lead and support worldwide efforts to limit the damage. Anything less merits the wrath of God.

For those who do not think of the world through a religious lens, you need only think of your families, parents, brothers, sisters, children and grandchildren. This world is on a course to become a much tougher place for all of us. The burning of carbon based fuels that are causing climate change, are also causing changes in the oceans, killing the reefs that are the basis of the oceanic food chain, killing much of the sea life that gives many of us nourishment and fishermen their livelihoods. The same process is enlarging the deserts, killing forests, and ultimately threatening the oxygen supply that we depend on for life itself. The same process is spreading disease and spawning new pathogens that will overwhelm our bodies and our medical systems.

This is murder on a global scale. And yes, people are responsible, elected politicians are responsible, and people in or out of office who willfully ignore reality and believe climate deniers’ drivel are responsible. It is our moral and religious responsibility to stop it.

— This commentary was broadcast on WAMC Northeast Report, August 28, 2019.


Is Trump responsible for violent rallies? Law says probably not.

August 29, 2017

The Hill asked me to analyze the likelihood that the president could be held legally responsible for the violence at demonstrations. For my analysis click here. As the saga of Jones v. Clinton and the subsequent impeachment made clear, high profile cases can have unpredictable results.


Blame the Supreme Court for America’s sharp political divide

August 24, 2017

August 24, 2017

In the 19th century the Supreme Court set the stage for a century of murder, intimidation and voter suppression in the southern states by nearly obliterating the application of constitutional rights to state behavior, In the 20th century, the Court’s nationalization of constitutional rights long met liberal dreams. The Court now seems poised to use the national application of constitutional rights language to satisfy conservative dreams. Both ways close the states’ rights escape valve and therefore magnify the contentiousness of national politics. And all of those choices have enormous moral costs. I elaborate on TheHill.com, at Blame the Supreme Court for America’s sharp political divide.

Happy reading, Steve


I Have a Dream

August 22, 2017

The North was segregated after Brown outlawed segregation in 1954. It didn’t happen by private individual choices but by government decisions that blocked banks from lending to African-Americans in both the suburbs and inner cities. Those now well documented decisions created many of the inner cities’ problems and the struggle to make equality real. But who cares?

Who cares because all the proposals to fix a huge injustice, not in the distant years of slavery but now, mean paying to help “them.” It’s fine if someone else pays. But not us, not the wealthy, the middle class or the poor.

So are there answers society could adopt?

We nibble: the Fresh Air Fund, scholarships for the African-American elite, the people who overcame all the potholes and roadblocks in their way.

In 1938, years before Brown, the Supreme Court understood that the inescapable sin of segregation was the barrier to networking. Missouri was prepared to send African-Americans to any law school in neighboring states so that they would get what Missouri called an “equal” education, but not to Missouri schools. Presaging Brown, the Court said it wasn’t equal to deny African-Americans the chance to get to know future colleagues, adversaries, judges and legislators. As Brown would say 16 years later, segregation is inherently unequal.

There lies the real problem of race – any real solution involves us all. Would we put the resources into “their” schools that we put into “ours”? Would we share some classrooms? Would we allow willing parents to send their kids to our schools or would a modest program be too much for us or the racist majority on the court in Washington?

I think there will be success for African-Americans too. Fresh out of slavery, their ancestors created a system of higher education,  fine colleges and universities which survive and thrive. Then they started the climb toward the middle class familiar to many of us. Many African-Americans joined the ranks of civil servants in the federal government. Government service had been a route out of poverty for many of our ancestors. But beginning in 1913, after years of progress, President Wilson excluded African-Americans from all but menial federal jobs, pushing educated and successful African-Americans out of the federal bureaucracy.

That story was repeated after World War II, after Brown v. Board, when federal officials denied that African-Americans had any rights the capitalist system need honor and instead used the federal agencies they controlled to block African-Americans from getting loans to build businesses or join the march to the suburbs. It wasn’t anything African-Americans did, but that deliberate undermining of their efforts and successes laid the seeds of contemporary inner city problems.

There are many more chapters to the story of the ways that the financial and political rugs were pulled from under potentially successful African-Americans and their businesses. The road of our African-American brothers and sisters has been longer, harder, more unjust than the ancestors of most of the rest of us because America made it so.

I was there in front of the Lincoln Memorial when Dr. Martin Luther King shared his glorious dream. That dream of equality belongs to all of us. All of us depend on the crucial American realization that all mankind is created equal. So, like most Americans, I thrilled to King’s words. And I admire the principled courage and dedication of Charlottesville’s counter-protestors. Their presence was an indication of the progress America has made, and their struggle reflects the distance still to travel.  King’s dream, our dream, is still a dream.

— This commentary was broadcast on WAMC Northeast Report, August 22, 2017.


For Peaceful Counter-protests

August 21, 2017

There is a debate that follows political activism – whether to be peaceful or violent. I’ve seen reviews of contrary scholarship. One view is that the old KKK used many of the same tactics as the modern “Alt-right,” using clownish outfits to draw in supporters so that laughter just helps their strategy and is an unhelpful response: The Ku Klux Klan Used the Same Trolling Tactics as the Alt-Right: https://psmag.com/social-justice/the-ku-klux-klan-were-memelords. Instead that scholar argues that Klan opponents at the turn of the 20th century literally beat them up. There were communities that kept the Mafia out the same way. But that view underestimates the impact of the Klan. Literally it kept a large part of the U.S. intimidated, quiet about their depredations, and unwilling to investigate or convict for a century. I don’t see good evidence that violence held the Klan in check.

The reverse view is that violence feeds the Alt-wrong. This is the same point many have made about violence in Afghanistan, Iraq and Palestine. Violence feeds the sense of discrimination that is a large part of the Alt-wrong rhetoric and sense of grievance. Thus it becomes a recruiting tool. Plus the Alt-wrong appears way more ready to use violence to harm and intimidate than any other populations in America:  Don’t respond to fascists with violence. A German town offers some helpful tips. See:

The Civil Rights Movement put a very large effort into staying nonviolent. Violence was always the tool of the enemy and demonstrations were arranged to highlight that violence for a national audience, preferably on television. That effort was much more successful in shutting the Klan down than the earlier confrontations.

I would add that the contemporary American public is much more hostile toward violence than it was in 1900, despite the posturing, violence and intimidation of the Alt-wrong. So it is very important to avoid becoming the perpetrator of violence, and to follow the tactics of Dr. King and the Civil Rights Movement of the 1950s and 60s. By contrast the antiwar movement, against the war in Vietnam, did resort to property destruction and my judgment was that they lost support in those demonstrations. I much preferred demonstrations carrying candles to St. Patrick’s Cathedral, or the reading of the names of American servicemen killed, and similarly powerful, but nonviolent demonstrations. I would follow the insight of Dr. King and the Civil Rights demonstrators in the present struggle and keep ourselves peaceful.

With all good wishes for you and for our country, Steve


Shots Fired – The Tragedy of Police Shootings

August 15, 2017

Last night I heard an episode of Radio Lab, which they call “Shots Fired,” that is far and away the best presentation I have heard about the persistent tragedy of police shootings.

They were very blunt about the part that racial prejudice plays in leading cops to make all the wrong assumptions with tragic results, as well as the disasters brought about by those cops who use positions in the police force to act out their aggressions, who are, in a word, bullies. It was also realistic in analyzing steps that a few departments have taken to break or attenuate the chains of events that lead to tragedy.

I’ve known, written and spoken about police shootings for decades and am well acquainted with the outlines of what has been going on. This program was a very well-rounded, well-done piece. It had me in tears for a full hour, but it was by no means all “touchy-feelie;” the program explored stories, facts, statistics, a support group, conversation with police administrators and some real understanding and sleuthing by some very dedicated, thorough and persistent reporters.

This is a podcast everyone should see and hear, including the police – the reporting is done in a way which can even reach police administrators who are looking for why these events happen and how they can deal with it.

Radiolab did us a service; now we need to get the story out.

For the podcast, click here.

You will see mention of a very different follow up which was not aired and is for podcast only. It examines the miscommunications which led to the killing of a white woman. The point they try to make in this second podcast is that there are multiple opportunities for miscommunications which can and did have tragic results. In this case the woman, thinking the police were intruders, came out holding a shotgun, the last trigger to the barrage of shots which killed her.

 

 


The Dagger in the Heart of Labor

August 15, 2017

Last week I spoke about labor. Next week is the anniversary of Martin Luther King’s speech at the 1963 March on Washington. I intended to connect the two. After hate intervened in Charlottesville, that’s even more urgent.

In the late 19th and early 20th centuries the Progressive Movement was making great strides on behalf of American workers and farmers. Gradually, the political parties adopted parts of the Progressives platform and many of their proposals were eventually adopted. But in the South, white elites drove a stake through the heart of the Progressive Movement by dividing workers on race. It took the Great Depression of the 1930s to wake America up.

The March on Washington that many of us remember as Martin Luther King’s great triumph was actually called by a coalition of labor leaders. Labor understood that workers had to stand together or they would be trashed together. If you could underpay African-American workers you could underpay everyone. The AFL-CIO, clear about the ways our fates interrelate, was a major supporter of the Civil Rights Movement.

But some politicians used racial prejudice to drive a wedge into support for progress, to prevent government from providing benefits and services for all of us, and then take the “savings” as tax breaks for themselves. Far more whites land on the public safety net but politicians want us to believe it’s just African-Americans. Far fewer African-Americans than whites depend on public schools but politicians want us to think money spent on schools is wasted because “they” get it. In area after area, politicians convinced many of us to starve public services. They want whites to think we would never need what African-Americans would get. They tell us we don’t want to spend anything on “them.” We should be allies, but the politics of race turns us into competitors.

Last time, I described how states and the Supreme Court have been undermining labor’s political role even as it augments management’s. So-called free market “conservatives” don’t want to do anything for the public, for you, your kids and your parents. They tell us that the market solves all problems for the deserving and only the undeserving need help, even while sanctimonious business men poison and defraud us. The real culprits want the freedom to take advantage of us while piling on more tax breaks for themselves. Racial prejudice just makes it easier for them to hide their own misbehavior.

So I want to make three points. First, racial prejudices do the greatest harm when politicians exploit them. I applaud those who condemn the violence and the perpetrators specifically. White supremacists don’t just object to policies – they hate everyone different from them. And no, Black Lives Matter is not a racist organization – objection to racism isn’t racism.

Second, the Supreme Court handed us heavily armed racists massing and marching to intimidate the rest of us. That must stop. Guns have no place in politics or public debate. Worse, white supremacists here admire Hitler, and study his path to power. Hitler’s Brown Shirts terrorized Germany. These folks are terrorists.

Third, Trump has done permanent damage to American politics. His close ties to groups which hate a large portion of America because they think we have the wrong parents is outrageous and highlights the danger of those hate groups. Trump has shown a path to power that every decent American must reject.

I was in front of the Lincoln Memorial when Dr. Martin Luther King shared his glorious dream. I thrilled to his words. But the March on Washington which we remember for Dr. King’s words was called and organized by the labor leaders of America dreaming of unity for all the working men and women of America. It is still a dream. We have to make it come true.

— This commentary was broadcast on WAMC Northeast Report, August 15, 2017.


On the Effects of Brown

August 12, 2017

To make it available on the web, I am posting this commentary originally aired on Dec. 10, 2003 together with a note describing the literature:

ON THE EFFECTS OF BROWN
Steve Gottlieb

It is easy to forget how recent are the pathologies that so many of us now routinely associate with black “ghettos”.

My dad taught music in a high school in Brooklyn. Because of the way music was handled, he had almost everyone who came through the school in his classes. When the district boundaries were changed in the early 60s he reacted with relief. The black kids who now came to the school were much easier to handle than the white toughs who now went to other schools.

In my youth black leather jackets were much scarier than black skin.

I am suggesting that the pathologies we associate with poor black ghettos are a product of the past half century.

Before Brown v. Board there was an entirely separate black economy. Riots and lynchings made it a dangerous world for blacks. But you could have all your needs taken care of without ever stepping outside of the black community from hair cuts to a plot in a cemetery. There were black doctors and black hospitals, black stores and black insurance companies. Some black communities were quite successful. Jealous whites burned the black district in Tulsa among others. Slaves had been trained in all the needed skills and one looked to their descendents until poorer whites forceably ejected them after the Civil War. In that black economy, however limited, blacks were masters in their own house.

By the time of Brown, large changes were affecting the black community. Blacks came north for jobs that had been opened by World War II. They moved into cities near those jobs.

Meanwhile, the Federal Highway Administration built the roads that opened up the suburbs. That led to an exodus. We burned a lot of gas in our old 1937 Chevy getting to old friends who’d moved out.

But the Federal Housing Administration red-lined the suburbs. That is, if you were white, you could have your mortgage guaranteed. If you were black, you were not welcome. The suburbs from their origins were lily white not because of white flight from blacks but because a house in the country had been an American dream which whites, but not blacks, were now able to realize.

They couldn’t move to the suburbs, and going all the way back to the time of Brown, what was variously called urban renewal or slum clearance tore down blacks’ homes in the cities. Blacks just called it “Negro clearance.” What happened to all those black businesses? When the government seizes property it has to pay just compensation. But only to the property owners. It assumes that lessees, i.e. most businesses, can get equivalent value elsewhere, that nothing is destroyed. But of course if the business is dependent on the neighborhood trade, it loses what we lawyers call good will and businesses call it loyal customers. As businesses were forced out, they had to start over, on the ground floor.

Minority-owned “mom-and-pop” businesses declined by half from 1960 to 1980.

Storied neighborhoods, live with business and social networks, are simply gone. Torn down to make way for offices and white owned stores. And then deserted even by the whites because there was no neighborhood left to support them – people had gone to the suburbs or been pushed out for “renewal.”

Now add Brown into the mix. all those blacks who had been shopping inside the black community could shop at Woolworth’s and other national businesses. So another economic prop was pulled out from under the black community.

Integration was not an unmixed blessing. Whole industries in the black economy disappeared and, with them, much of the capital that had been amassed. Working in the white economy meant starting the ladder at the bottom, playing by white rules and customs, and insisting on white good faith in hiring, training, educating and promoting blacks.

Ten years after Brown, Congress passed the Civil Rights Act of 1964 including provisions relating to equal employment, housing, public accommodations and government programs. Then the battle started in earnest with some defendants fighting decade long legal battles to avoid having to do anything. That was when courts started to employ the same remedies that they had for schools, telling defendants that they had talked the talk long enough and now they were going to have to do the behavior. Those orders are the origins of affirmative action.

I don’t want to make the claim that everything was better before Brown. I have lived through that transition and I know better. But I get very depressed when people claim that the black community has not shown the pluck and ingenuity and savvy and dedication to self-help that other immigrant groups have. On the contrary, they followed precisely that pattern until the fruits were systematically pulled out from under them.
—-
For a brief biliography on resegregation after Brown v. Board, see Stephen E. Gottlieb, Robin L. West, Brian Bix and Timothy D. Lytton, JURISPRUDENCE, CASES AND MATERIALS: AN INTRODUCTION TO THE PHILOSOPHY OF LAW AND ITS APPLICATIONS, 3rd. ed., 940n (LexisNexis, 2015):

Melvin L. Oliver & Thomas M. Shapiro, BLACKWEALTH/WHITEWEALTH: A NEW PERSPECTIVE ON RACIAL INEQUALITY 17-18, 51-52, 150, 174 (1995) (tracing the continued impact of FHA’s racial preference in enhanced white wealth today); Douglas S. Massey & Nancy A. Denton, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 54-55 (1993) (summarizing FHA’s role in imposing residential segregation); Kenneth T. Jackson, CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE UNITED STATES 203-15 (1985) (describing how “FHA exhorted segregation and enshrined it as public policy”); FlorenceWagman Roisman, The Lessons of American Apartheid: The Necessity and Means of Promoting Residential Racial Integration, 81 IOWA L. REV. 479, 486 (1995) (review of Douglas S. Massey & Nancy A. Denton, AMERICAN APARTHEID (“the massive new housing production fueled by the Federal Housing Administration (FHA) and Veterans Administration (VA) financing of suburban areas was a major cause of increased segregation”) (citing Charles Abrams, FORBIDDEN NEIGHBORS: A STUDY OF PREJUDICE IN HOUSING 229-37 (1955)) (“FHA adopted a racial policy that could well have been culled from the Nuremberg Laws”). See also National Comm’n on Urban Problems, BUILDING THE AMERICAN CITY 101 (1969) (concluding that “There was evidence of a tacit agreement among all groups—lending institutions, fire insurance companies, and FHA — to block off certain areas of cities within ‘red lines,’ and not to loan or insure within them” but later studies cited above found considerable and explicit documentation).

ABOUT THE AUTHOR: Steve Gottlieb is Professor at Albany Law School. His most recent book is Morality Imposed: The Rehnquist Court and Liberty in America. This commentary was broadcast December 10, 2003.


Workers, the labor movement and the Triangle Shirtwaist Fire

August 7, 2017

I was driving home from the grocery store. The radio was tuned to this station. Wanda Fisher was playing a song that I hadn’t heard but I knew what the woman was singing about – it was the Triangle Shirtwaist fire. Hundreds of girls died because the doors were locked shut. They died from the fire, the smoke or jumping from windows like people did on 9-11.

You may or may not like unions. But no one who knows the history of the workers’ movement can doubt the need for regulation. Without regulations too many workers get treated like trash – locked in, poisoned and sickened by noxious toxins and cut down by unprotected machinery. My uncle was lucky – he just lost part of an ear.

Even worse, whatever profit one business can make by treating its workers like trash pushes other businesses to treat their workers like trash. That’s what business means by the need to stay competitive, skimping on what they have to do for their employees.

Regulation is pushback. That’s why we need it and that’s why those businesses that do most of the lobbying don’t – so they don’t have to spend money on the people they think of as nothing more than the means to make profit, essentially trash.

Politicians and courts have broken up the alliance among workers, white and black, by destroying the unions that united them. A large part of the decimation of unions was done through union finances. When all workers benefit from union bargaining but don’t have to contribute to the union treasuries, most people could save their dues and be free riders on the unions’ efforts – until the union becomes unable to help because its treasury is empty. So-called “right-to-work” laws have done that in many states. Those laws prohibited the union shop in which everyone paid for the unions’ services. The laws should have been called management’s-right-to-fleece-their-workers laws because they made the relation between management and labor one sided. The U.S. Supreme Court played a part in these developments, increasingly denying unions the right to charge for their services. Labor unions have lost the majority of their former strength and most workers have no organization to support them. Without labor unions creating common agendas, workers have been much easier to divide.

In past years the Supreme Court has whittled away which unions could charge what dues, and in which unions workers could opt out of paying the full union dues even though the union had been selected as the workers’ representative in negotiations.

This past term of Court, the Supreme Court was poised to block collection of a collective bargaining fee from government workers who took advantage of union bargaining but chose not to pay full union dues. Put that together with the Court’s decision in Citizens United and you get a much clearer picture of how this Court has reshaped American politics against the working man. Scalia’s death blocked the Court from reaching a decision on that issue. But the case will surely come back in some form now that Gorsuch is on the Court.

The Court has not finished playing with the relative strength of workers and bosses or of Democrats and Republicans. It has chosen a president, in Bush v. Gore. It has reshaped political finance in Citizens United. So far it has refused to touch gerrymandering, letting its Republican friends keep themselves in power like Maduro in Venezuela or Erdoğan [phonetically Erdowan] in Turkey. We are not getting the government we deserve; we are getting what the Court dictates.

— This commentary was broadcast on WAMC Northeast Report, August 8, 2017.


Religion Chautauqua Style

August 1, 2017

Instead of the mess in Washington, let’s talk about something positive. We just got back from a brief vacation in Chautauqua. I’ve been going there whenever possible since 1955 and I think it is valuable to talk about what it has meant to me, especially in this time when discussion of religion is so fraught.

Chautauqua had been founded in 1874 as an ecumenical summer school for protestant Sunday School teachers. Before the Civil Rights Acts of 1964 and 1965, ownership of property was still restricted to Protestants, although lots of us learned to love the place regardless of religious commitments. I’ve always felt welcome, no matter whom I’m talking with, who’s running things or whose chapel I’m in. Neighbor or stranger, I’ve been included and welcomed. That welcome was important to me; it influenced me to move beyond the familiar terrain of where I grew up in my choice of college, law school and subsequent career decisions.

The spirit of Chautauqua has always taken the sermon on the mount seriously. As Ben Franklin wrote in his Autobiography, “the most acceptable service of God is doing good to man.”[1] For Franklin that service to mankind was by no means limited to people of one’s own faith.

This summer I took a seat in the amphitheater at the Sunday evening Sacred Song Service. For some years, religious gatherings in the amphitheater included material from across the Abrahamic tradition, the three great religions which all trace themselves back to the patriarch Abraham. I have heard this religious and primarily Christian congregation recite from the Qu’ran along with Christian and Jewish liturgical prayers, poetry and song. This year I was particularly struck by the inclusion of a gorgeous Native American chant.

It’s a good feeling, affirming our mutual respect and appreciation. No one is diminished as we celebrate the best in ourselves and in each other. We walk out feeling stronger, wiser, more confident. Bridges among us are also bilateral entree, enlarging our options, prospects and opportunities as well as our understanding. They amplify both the good we can do in this world as well as our own security.

We shared embraces with friends from many traditions and from all over the country, shared a home cooked dinner with a pair of old friends, both of whom are Lutheran ministers, and went out for dinner with a former student of mine here in Albany who has become a Methodist minister. There is of course nothing unusual about this. But it is worth noticing that this is one of the strengths of our country and of Chautauqua in particular.

Nor, at my recent college reunions, was I diminished by reciting a Muslim prayer at a memorial service for deceased members of my college class along with prayers from the Christian and my own Jewish tradition. We are and were all human, with the strengths and frailties common to mankind. We find a common end in death as we shared the world in life. We remember each other fondly without regard to where they prayed.

Part of what made this country a beacon for the world was that we left our prejudices behind in the old world our ancestors left. Our First Amendment is, after all, a cry for brotherhood as much as it is a restraint on government. We keep government out of the religious tent because we celebrate both the rights of all faiths and our common humanity in brother- and sisterhood.

— This commentary was broadcast on WAMC Northeast Report, August 1, 2017.

[1] The Autobiography of Benjamin Franklin With Introduction And Notes (P F Collier & Son Company, ed. Charles W Eliot, New York (1909) [available online at The Project Gutenberg EBook of The Autobiography of Benjamin Franklin, Release Date: May 22, 2008 [EBook #148] [Last updated: November 10, 2011]]


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