What about those demonstrations?

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

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 19^th 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.

Trump’s Scorn for America and Americans

I argued on this station that Trump should have been impeached for disloyalty. The American people understand disloyalty. They didn’t understand the significance of the articles of impeachment.

The House impeached him for trying to get a foreign government’s help for his campaign and for defying House subpoenas. The people agreed that Trump did what he was charged with, but apparently thought those actions were trivial.

Democrats didn’t bear down on the bigger issue – Trump’s disloyalty. Not only did he take money and assistance from foreign countries, itself unconstitutional, he strengthened their positions and weakened our own. He undermined institutions that kept Russia in check; isolated America from its real friends; and deluded his followers about an international pandemic. No president should be allowed to sell the welfare of this country to foreigners or rich friends. That’s disloyal.

Trump’s disloyalty goes way beyond the payoffs he accepted. Trump despises America and Americans unless they are very very rich.

• He despises American workers, providing lavish tax breaks that help his rich supporters pay peanuts to their workers, outsource and off-shore their jobs.
• He despises the American people, authorizing his rich friends to poison our air, water and climate so his rich friends can make a little more money and give him some too.
• I should add his despicable attitude toward women.
• And so great is his compassion for the American people that he’s been trying to deprive us of our health care in the middle of a health crisis.
• So great is his compassion for older Americans, for our parents and grandparents, that despite Americans’ support for Social Security, he’s trying to eliminate it with an Executive Order to defund and bankrupt it so he can say there’s no money left. His order is unconstitutional and may be overturned, but it’s disloyal to the people of America.
• He grandstands about policies that are supposed to help workers and farmers, but disrupts their lives instead.
• Trump told us he wanted to defund the Post Office to prevent us from mailing in absentee ballots, but when it became clear that the American people didn’t want their Post Offices defunded, he blamed it on Democrats. His war on the Post Office is not only a war on absentee ballots, it’s a war on the Christmas cards we send every December; it’s a war on our mail carriers, whom many of us know and like; it’s a war on voting safely without crowds that spread the virus; and it’s a war to force us to pay private carriers much more money than what we pay the Post Office to carry our mail, medicines, and bring us our Social Security checks. In other words, it’s another attempt to rip us off.
• And to cap it off, he hates our democratic system, threatening to stay on in spite of the election, so he can be dictator, and the rest of us merely subjects.

In other words, everything for Trump and nothing for America. That’s the real issue. We know he’s a fraud, claiming fake news so often it’s an obvious effort to avoid defending his behavior.

Trump is running a Ponzi scheme, trying to cover his debts and increase his own wealth by bilking the rest of us. His misbehavior is criminal. But don’t lock him up. It would be better to string him up, or at least deport him and take his passport away. Let him shine Putin’s shoes in the Kremlin.

— An edited version of this commentary was scheduled for broadcast on WAMC Northeast Report, on August 18, 2020.

 

Statues and the Arc of Justice

Let’s talk about statues. I love Michelangelo’s and was privileged to see his masterpieces in Rome. And I’m moved by Daniel Chester French’s sculpture of a seated Lincoln in the Washington memorial that bears his name. I think’s it’s ironic to tear down or even reconstruct the statue, erected by the freedmen themselves, of Lincoln with a former slave – the freedmen knew the difference between enslaving and freeing people and wanted to commemorate and honor their liberation while preserving the understanding of the great moral wrong that had been done to them.[1]

But I don’t have much feeling about Schuyler. He was a flawed man who did both good and bad. I know a fair amount of the history and statues don’t influence me much although as a teen my family took me, at my request, to see many of the iconic battlegrounds in New York where a large part of the Revolution was fought. None of those battles were fought by statues – if you are looking for an image of a statue taking action in this world, I’d recommend the statue of the Commendatore whose demons carry Don Giovanni off to a well-deserved hell in Mozart’s opera.

There is more at stake here than statues. Snowballs stop and melt if they run out of snow. Movements need victories, even little unimportant ones, if they are to keep going. Black Lives Matter is the culmination of centuries of anguish. As a lawyer, I know the legal steps that enslaved, killed and embittered the lives of so many African-Americans, and I can pinpoint the case that gave rise to a century of impunity in which the worst of this country’s racists lynched and sometimes burned African-American men, their homes and even their towns.[2] I will never forget listening to Eric Goldman, one of my professors at Princeton, describe a lynching at Coatesville, Pennsylvania.[3] As my son said to me when I asked him a technical question about 9/11, “You don’t want to know, dad.” And you don’t really want to know about Coatesville. It works only for nightmares.

As Martin Luther King put it, “The arc of the moral universe is long, but it bends toward justice”. My hero as a six year old was Jackie Robinson on the Brooklyn Dodgers, my team. It was my privilege to invite Jesse Owens, African-American winner of four Olympic medals in Hitler’s face at the 1936 Berlin Olympics, to my high school and introduce him to my class assembly, and then enjoy my classmates telling me how much they appreciated what Owens had to say. It was also my privilege as a lawyer to spend several months as a full time volunteer in the New York legal office of the NAACP – I’ve been following that arc of the moral universe and devoutly waiting for it to bend toward justice. I want history’s blacksmiths to hurry up and bend it and if it takes the loss of a few silly statues to keep the momentum going, hail, hail, I’m for it.

— This commentary was scheduled for broadcast on WAMC Northeast Report on August 11, 2020.

[1] https://www.npr.org/2020/06/27/884213464/dc-statue-of-lincoln-standing-over-a-formerly-enslaved-man-sparks-controversy

[2] United States v Cruikshank, 92 U.S. 542 (1875).

[3] I don’t know if Goldman ever wrote up his lecture but here’s a link to someone else’s reconstruction, https://timeline.com/the-forgotten-lynching-of-zachariah-walker-was-one-of-our-most-shameful-and-it-was-in-the-north-678871b13f2d.

To prevent a coup – strengthen the military spine

Two weeks ago, I commented about Jefferson’s fear of a presidential coup. Last week I spoke about using nonviolent methods to prevent a takeover by the incumbent president, who told Chris Wallace on Fox that he might not leave the White House if he loses the coming election. Afterward, I expressed my concerns and showed a copy to Ian Shapiro, a friend and polymath who’s done brilliant work on both foreign and domestic policy. He sent me back a portion of his new book on economic insecurity, The Wolf at the Door: The Menace of Economic Insecurity and How to Fight It. I quickly realized we were approaching the same problem from different angles. Insecurity makes people want to believe that Trump is leading them to better days. And getting Ian’s message across will help protect us against a presidential takeover.

The Army is a crucial player in any takeover. American military tradition is stanchly against political activity and devoted to defending the Constitution. There would be great resistance at all levels to using the military politically, especially to end politics by takeover. And because the military contains a large cross-section of America, we all influence it. Military diversity makes it harder to unite on unauthorized, unpopular activities in conflict with American military tradition, especially if they depend on secret planning.

But presidential takeovers in other countries force us to the sobering realization that a perverted commander-in-chief can pervert the military, given enough time. That makes all the work we’re doing to prepare for this election crucial to prevent White House treason – even though he’s talked about it openly. Concerted opposition to Trump and to takeovers, expressed in a vigorous campaign, make it less likely that the military will participate in a coup.

But outside the military, Trump has been constructing other forces which respond to him – using or threatening to use the National Guard, border guards and other armed federal agents in Portland[1] and elsewhere to stir up trouble where peace had reigned. Even more serious are the private militias that conduct their own training with their own arsenals. The great bulk of domestic terrorism has come from those groups. Instead of fidelity to the Constitution, they aim at violently defeating American government in order to achieve undemocratic aims in conflict with the Constitution and the law. Some American elections have been overturned by force of arms.

Unreconstructed admirers of Civil War secessionists would gladly reverse the results of the Civil War. Guns and racism have become closely entwined. Gun shows and private militias confront us with a plethora of racist and conspiracy theories making the point.[2] Their treasonous impulses fuel my strongest objections to gun rights today – guns are not being used for self-defense but for calculated murder, intimidation and political takeover.[3]

Trump’s outrageous racism and complements to racist killers are obvious efforts to get those armed but irresponsible groups behind him, ready to function as a palace guard to keep him in office regardless of the election. Private militias, like gangs and criminal cartels are dangerous because they oppose democracy, are divorced from national values, and expect to gain from violence. Instead of respecting peaceful demonstrations, they’ve spawned provocateurs in places like Portland, to give Trump an excuse for shutting democracy down. They and their standard-bearer in the White House must be stopped. And we have to keep up the fight for government of, by, and for the people.

[1] Washington Post Blogs, A violent send-off on feds’ final night at Portland courthouse, July 31, 2020 Friday 12:07 AM EST

[2] John A. Wood, THE PANTHERS AND THE MILITIAS (Lanham, MD: University Press of America, 2002); Kenneth S. Stern, A FORCE UPON THE PLAIN: THE AMERICAN MILITIA MOVEMENT AND THE POLITICS OF HATE (Norman: U. Okla. Press, 1997); Southern Poverty Law Center, “Terror From the Right: Plots, Conspiracies and Racist Rampages Since Oklahoma City,” http://www.splcenter.org/get-informed/publications/terror-from-the-right (visited Jan. 23, 2014).

[3] Stephen E. Gottlieb, Unfit for Democracy: The Roberts Court and the Breakdown of American Politics 173-77 (NYU Press, 2016).