Alito and the Second End of Reconstruction

The air has rightly been filled with the consequences of the abortion decision.[1] But as that decision illustrates, the bigger problem is the Court itself.

Alito is a poor constitutional lawyer and a misanthrope. His claim that there’s no right to abort, because the Constitution doesn’t say so explicitly, and the states didn’t protect it when the liberty clauses were adopted, is nonsense. The Constitution and the Bill of Rights identify none of the specific rights that might be protected by the rights to life and liberty – none – it just says “life” and “liberty” and adds an equally general “others retained by the people.”  Roe and Casey did have a historical basis because, like those decisions, most places didn’t criminalize abortions before quickening for much of our history. But his protests notwithstanding, Alito’s theory means America isn’t the land of the free, despite the Fourteenth Amendment, because his interpretation strips out all rights except what the states chose to give – no right to marry whom you want regardless of race, color, or gender, no right to use birth control, no right to have children, no refuge from states wanting to sterilize people. In each of those cases the Court backed the states first before eventually deciding that those liberties are too important, too intimate, too fundamental, for states to deny.

Since Alito’s theory is constitutional nonsense, I have to conclude that Alito and his cronies are hostile to women’s and other human rights even though the Court’s “conservatives” cling to the rights of states[2] which are no more textually explicit than liberty, and are contrary to the explicit commands of clauses designed to protect the rights of people – the Fourteenth Amendment was designed to overrule state definitions of our rights.

Alito is part of the Court’s second attempt to nullify the post-Civil War Amendments. Within a decade of the end of the War, the Court decided the language, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” was meaningless because there were virtually no such privileges or immunities. Never mind that the original historical meaning of the phrase was intended to incorporate the Bill of Rights into the protections of the 14^th Amendment. Later, when the Court finally realized it had to apply the Bill of Rights to the states, it had to invent “substantive due process” to apply the Bill of Rights to the states through the due process clause instead of the privileges or immunities clause. Conservatives love attacking that as unhistorical, but the larger truth is that it repaired the Court’s unhistorical obliteration of “privileges and immunities.”

Now, instead of privileges and immunities, we have a Court which squirms to avoid enforcing the Reconstruction Amendments and wants to apply the Constitution as it stood before the Civil War. So Confederates get their guns, regardless of where they plan to carry or use them, and neither women nor Blacks have any rights this Court deems worth protecting.

The Court doesn’t deserve the title “Supreme” nor its demolition crew the title “Justices.” We need to pack the Court, enlarge the Court, defund the Court, get rid of it.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on July 5, 2022.

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[1] Dobbs v. Jackson Women’s Health Organization,  No. 19–1392. Decided June 24, 2022, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

[2] See Ariel L. Bendor  and Joshua Segev, The Roberts Court, State Courts, and State Constitutions: Judicial Role Shopping, 30 J.L. & Pol’y 1 (2021); Erwin Chemerinsky, The Case Against the Supreme Court, 110-18 (2014); Richard H. Fallon, Jr., The “Conservative” Paths of the Rehnquist Court’s Federalism Decisions, 69 U. Chi. L. Rev. 429 (2002).

Defund the Court

I mentioned defunding the Supreme Court to a Princeton professor after he moderated a panel on the future of democracy in America. He just sneered. Of course that only made me look closer and double down.

Most ways to deal with the Court take nonpartisan cooperation. It takes both houses of Congress to pass statutes. Because of the filibuster and two DIMOs (Democrats-in-name-only), Republicans have been able to control the Senate. There won’t be much we can do to regain a decent Court until liberals and progressives can regain control of the Senate, despite the inherent Republican tilt of the constitutional rule of equal state representation in the Senate. Nominations that would change the balance of power have zero chance. Enlarging the Court would be a nonstarter for Republicans. No statute would get through that would change the Court’s jurisdiction or protect rights that the Court wouldn’t.

But there are things that one house of Congress can do. Remember that Republicans were able to block paying the national debt until they got what they wanted in return. So let’s say I’m looking for a negotiating ploy. One House of Congress can single-handedly block the Court’s budget. The Constitution requires paying the justices, but it doesn’t say we’ve got to keep the building open, pay for clerks, marshals, heat, air conditioning or circulation, or can’t hand the building  over to a different agency or company.

On a practical level it’s not clear how difficult defunding would make life for the Court. The justices can do their research elsewhere and they can operate without paper. But defunding could make it harder to get cases to the Court or get decisions out of it. It would be a nuisance, and might get through to some of them that they are totally out of sync with democracy, human decency and the American people.

The bigger issue is political. Roosevelt couldn’t pack the Court but succeeded when the Court backed off almost immediately. There’s an argument about why it did or who, if anyone, changed their votes but the Court did back off and, within a few years, Roosevelt had named all nine members of the Court. What I’m looking for is a basis for negotiations or for the justices to back off. I want to imitate the intransigence of the Tea Party and use their unity and intransigence against them. Republicans blame Democrats for not compromising, but let them see what happens when Democrats actually behave the way Republicans do.

That leads to another point. People who despise what this Court has been doing have to build the momentum to knock it off its pedestal. There may be losses along the way but movements need a series of goalposts, votes and things to cheer. An effort to defund this Court strikes me as a step along that path.

Don’t worry about the Court’s legitimacy. The Court has blocked progress for most of its history. Its gun rights decisions now empower the gun lobby’s extremists to refight the “lost cause” of the Confederacy and suppress, or “cancel,” African-Americans. These are serious issues – the Court’s support of gun rights and suppression of voting rights threaten the continuance of American democracy. The Court’s decisions against women’s rights and health sacrifice their welfare and threaten their lives. Only extreme gun-wrongs nativists and extreme anti-women activists could imagine that this Court is legitimate. Forget it. Let’s undermine the Court, lay siege to it, drive them crazy. Then maybe we can build a Court worthy of respect.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on June 7, 2022.

Abortion and the Alito Opinion

I remember my parents discussing, many decades ago, their perception of  Catholic hospitals saving babies in preference to mothers, and Jewish hospitals as prioritizing saving the mother. I haven’t checked whether they were accurate, but the Court’s apparent position on abortion certainly does that. That’s a religious decision and it’s clearly in conflict with Jewish law, for which saving the mother is obligatory.

I don’t subscribe to the common stereotype that abortion is about patriarchy. There certainly are good legal arguments, like those made by Judge Calabresi, that prohibitions of abortion are discriminatory in fact, but that’s quite different from any intent to discriminate. I know many women who feel as strongly about abortion as any man and they are not misogynists or even conservative. Some are friends and some were my students. This is not about hostility to them – they are fine people whom we treasure. They have religious views which I respect, but don’t share, and want to dispute, contest and keep those views out of institutions which have power over those I love and care about. So, for example, I feel very strongly that it is improper for St. Peter’s Hospital to gobble up other hospitals so that it is a monopoly in many communities. Catholics and Evangelicals are themselves divided about abortion, and they and others are welcome to make their own decisions for themselves. But I want to keep official hands off the women we care about.

The Biblical injunction to “Be fruitful, and multiply” was made thousands of years ago when there were fewer people roaming the earth. But to take that injunction seriously several thousand years later one has to assume that God doesn’t change the rules as the world changes, that God hasn’t tried to teach us to update our ways of life, and that God pays no mind to the way that ancient rules have very different effects on the earth and on us now. With all due respect, I view each of those assumptions as blasphemous. What kind of a God would do that? Most people assume an all-powerful and all-knowing God. To assume that an omniscient and omnipotent God would ignore the increasing stress that population increase puts on the earth we share, ignore the catastrophe it’s already causing, and ignore the rapidity with which those harms are increasing, is to assume that God is vicious and unjust, which of course conflicts with what most of us have been taught.

Judge Calabresi, who was one of my teachers and spent ten years as Dean at the Yale Law School, pointed out that there are no generic obligations to make our bodies available to save the lives of another – no obligation to spare an unneeded kidney, bone marrow, or even blood. Women alone are handed the legal obligation to make their bodies serve the life of another under the law of some states. And the Court cares little about the right to life except the unborn. Accurately but tragically, the Court has told us that it has never decided whether it violated the Constitution to execute an innocent person. It’s just the unborn for whom the Court guarantees a right to life.

In other words there is no principle that justifies prohibitions on abortion. Courts work by principles, not by religious maxims, certainly not unless they are embodied in principles, rather than specific judgments about women. I think Roe was poorly worded and poorly explained but it was absolutely right.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on May 17, 2022.

Controlling Our Bodies Requires Saving American Democracy

— For the podcast, please click here. —

Most people don’t realize that Roe v. Wade was the brainchild of two Nixon appointees, Justice Harry Blackmun and Chief Justice Warren Burger – the so-called Minnesota twins because they had grown up together in Minnesota. Blackmun had been counsel to the Mayo Clinic and he and Burger had corresponded about abortion rights well before Roe v. Wade came to the Court. So they were ready and waiting for it.

As a moral issue Roe was about people’s rights to control their own bodies. It has never seemed a close moral case to me. But the legal implications of litigation are often much more complex than the moral issues. Roe was controversial from the beginning even among liberal law professors. I particularly remember an article by John Hart Ely criticizing the legal foundations of Roe. And Gerald Rosenberg famously argued in The Hollow Hope that women would have had a more secure right to abort without Roe. I’m in print, in an article with my friend David Schultz, disagreeing with Rosenberg.

But I want to make a different point than the ones that Ely, Rosenberg, or David and I made, that it is important to understand the price we have paid for the freedom we believe in and what that means for the future.

When Roe was decided, the Court was mopping up some of the civil rights cases in the midst of a backlash. Many of us remember the White Citizens Councils and racist violence. But most of the country was appalled. The racists had no chance of taking over the country. They had no claim to the moral high ground, and even its opponents understood that. Segregation, lynching, denials of voting rights were basically indefensible.

But Roe was a bugle call to many religious groups. The racist and religious groups reached different people despite some overlap. Church groups had a religious fervor and an organizational engine that the racists could not achieve by themselves. Karl Rove and others put many of them together. In doing so, they created a movement that threatens the core of American self-government.

Racism clearly underlies a great deal of what is happening now in the country and a large part of support for Mr. Trump. But the religious fervor of church groups built a separate movement around gender and sexual issues before some of the religious groups merged with the racists. The combination is lethal.

By nationalizing the social, gender and sexual issues on top of the Civil Rights revolution, the Court made a large group of Americans willing to attack American democracy. It was once possible, though unfair and expensive, for people who believed in the freedom to control their own bodies to rely on the law in states like New York and Massachusetts even though they’d be wise to stay out of Mississippi, Alabama, Texas and other states that had tried to destroy the country in the Civil War. But now, freedom-loving people cannot be sure of freedom anywhere in the country when American popular government is under attack by racists who recognize no rights but their own. What was a religious movement aimed at a moral issue is now fueling an attack on democracy itself.

Let’s be clear – no dictatorship, no government based on aiming weapons at its own people, supports women’s rights, privacy rights or sexual rights. In other words, with their sights trained on popular government, everything is at risk, all the freedoms we care about. The price of protecting everyone’s control of their own bodies is that we all have to fight for democracy with everything at our disposal.

— If you think I’m on target, please pass it on. This commentary was scheduled for broadcast on WAMC Northeast Report, on April 26, 2022.

Anthony Kennedy And The Future Of The SCOTUS

Welcome to Iran. Iran has a Guardian Council of men in long robes. We have a Guardian Court of nine judges in black robes. Both decide who rules. The Guardian Council of Iran decides who is allowed to run. The Guardian Court decides which party wins by blessing the vote rigging that favors Republicans – by blessing gerrymandering after the Republicans rewrote voting districts to favor themselves; by blessing registration requirements that Republicans erected to block anyone likely to vote Democratic from getting or staying registered and from voting; and by removing the protections of the Voting Rights Act against discriminatory devices in the former Confederate states and wherever discrimination had been the rule.

The Guardian Court competes with Iran’s Guardian Council for political control by limiting what labor unions can spend[1] and by overruling limits on political spending by corporations.[2] It tilts the whole electoral environment toward the rich and powerful and against workers and consumers.

The U.S. Guardian Court is nearly as effective as the Iran Guardian Council, even without Russian help. And the retirement of Justice Anthony Kennedy will make it worse. He was the only conservative who understood that vote rigging is inconsistent with a democratic constitution and sometimes acted on that understanding. With a less principled replacement, the current court will present an even bigger barrier to protecting American democracy.

This isn’t about law and all about partisanship. It’s not, in Roberts famous example, like an umpire calling balls and strikes. It’s an umpire in one ball club’s pay, corrupt even as courts across the globe are gaining the confidence to insist on clean elections. To put it another way, the U.S. court system is being corrupted by the rewards of capitalism.

Still more is at stake. Roe v. Wade,[3] protecting a right to abortion, is at stake in the changes in the membership of the Court along with a panoply of labor, consumer, environmental and civil rights protections.

Discouraged? This is the worst time to be discouraged. We can take the country back. But first we must win two elections, the 2018 legislative election and the 2020 presidential election.

Winning the 2018 legislative elections on both the state and national levels can reduce the damage. Fairer state legislatures can insist on fairer elections. Congress has the power to regulate national elections to block states from using unfair rules. And it can block Trump’s plan to abuse the census to further turn the Republican minority of voters into national dominance.

Along the way, winning in 2018 can prevent any more bad nominations to our court system. It can block the Administration’s abuse of everyone from workers to women to immigrants.

Winning in 2020 will make all that easier and it will make it possible to get the Court back. Yes I said we can get the Court back; we can end the rule by the US Guardian Council that masquerades as a Court.

The Constitution does not specify the number of justices on the Supreme Court. That is set by law.[4] The number of justices has been set as low as five and as high as ten.[5] Although a controversial proposition, it has been argued that the number can be changed by the simple process of nomination and confirmation.[6] Either way, it is not set in stone.

President Franklin Delano Roosevelt proposed to increase the number when the Court was blocking his efforts to deal with the Depression. In the event, the Court backed down without any change in the number. But the point is that it can be done and should be.

This is a time to get fired up by the efforts of the capitalists, corporations and wrong-wing religious groups to use the courts to take our country away from us. We can take it back. We must and will take it back.

— This commentary was broadcast on WAMC Northeast Report, July 3, 2018.

[1] Janus v. AFSCME, Council 31, 2018 U.S. LEXIS 4028 (2018).

[2] Citizens United v. FEC, 558 U.S. 310 (2010).

[3] Roe v. Wade, 410 U.S. 113 (1973).

[4] 28 USC § 1.

[5] Act of Feb. 13, 1801, § 3, 2 Stat. 89; Act of March 3, 1863, ch. 100, 12 Stat. 794.

[6] Peter Nicolas, “Nine, Of Course”: A Dialogue On Congressional Power To Set By Statute The Number Of Justices On The Supreme Court, 2 NYU J.L. & Liberty 86 (2006).

The Innocence Project

I want to talk about people we are less used to talking about around Christmas.

Several times a year I am guaranteed to have a good cry – whenever I get the latest bulletin from the Innocence Project. Without fail they describe at length someone who spent decades in prison, sometimes on death row, for crimes they did not commit. As a human being I am always heartbroken. As an American who believes that we all have a right to liberty, I am both sick and outraged.

And once freed, what education, training or experience do they have? Did they have a chance to start a family and are any left to warm their hearts? The dislocation of freedom is immense. I’ve met men in prison afraid to come out. Those lost decades freeze the soul as they scar past, present and future. Freedom is precious. It also unravels.

I am outraged because there are too many in this country, too many with the power, to keep people in prison, even execute them, even after it has become clear that they were innocent of the crimes for which they were convicted. Justice O’Connor, bless her heart, saw that as unacceptable, although we didn’t always agree on the facts. But the Supreme Court has not yet found the character or the will to conclude that it is unconstitutional to hold an innocent person once that becomes clear, or to sit tight and deny a hearing once evidence has been found that makes it improbable that the prisoner was guilty. The Court has refused to find a right to DNA evidence when that could prove innocence. And prosecutors repeatedly do everything they can to withhold evidence that could result in justice instead of in conviction. The Supreme Court has even said that there are no penalties for withholding evidence even when it is in clear violation of constitutional obligations.

As an American, it is an understatement to say that is no source of pride. As an attorney and a human being, it is a source of disgust – and fear. A legal process that ignores justice is a threat to us all. The purpose of the Bill of Rights and of the Fourteenth Amendment is to protect us all from the abuse of law to polish the prosecutor’s reputation or prejudices instead of serving the cause of justice. Unfortunately attorneys know that the criminal process is more like a canning factory than an effort to separate the innocent from the guilty, truth from lies, and fairness from abuse.

The ACLU and the CATO Institute, otherwise often on opposite sides, come together in support of truth and accurate decision-making. But when the issue is the rights of people accused of crime or the rights of people who have been imprisoned, too many eyes glaze over, not from tears but indifference. Yet those rights, if and when they are honored, are what differentiate us from a police state where people can be imprisoned because of their politics, their parentage or their refusal to kowtow to the unreasonable demands of authorities. These are part of the central meaning of being an American.

The people whose title is Justice of the United States Supreme Court who vote most consistently to protect the right to life of fetuses are the least likely to protect life in any other context. That is hypocrisy under black robes. The behavior of callous prosecutors and unqualified Supreme Court justices is an American disgrace.

— This commentary was broadcast on WAMC Northeast Report, December 26, 2017.

Chemicals, Infertility and Morals

You’ll be subjected to rolling commentary on innumerable aspects of the Gorsuch hearings. I prefer, as I often do, to address deeper aspects of our competing value systems that underlie the surface of our political battles. One is the human impact of our treatment of planet earth.

Human behavior is injuring our environment. But nature has ways of winning the battle. It turns out that our fertility is as fragile as the eagles’ before DDT was banned, that endocrine disruptors and other environmental toxins are damaging our ability to reproduce – they’re in our kitchens, pesticides and other purchases.[1] That can be a powerful counterattack against the human activity that is warming the globe. If we become infertile and our population plummets, America will become a sad, lonely, vulnerable place, and, quite likely, conquered by any healthier peoples left.

Nevertheless, I’m sick of making consequential arguments, to tell people that if we don’t do this or that, bad things will happen. I think the arguments I’ve been making are air tight. But the science floats over people’s heads. A women, well-enough educated to know better, told me that she chose not to think about the environment because it was too big to deal with. Her comment made clear to me that reason doesn’t reach nearly enough people. Science won’t solve anything unless we accept and act on it.

So let’s address the moral issue. No one, no business, no company or corporation has the right to put toxins in the environment, chemicals that can make it impossible for people to reproduce or kill or maim those of us alive, or make us produce deformed and handicapped children – no one and no company has that right. And they don’t have the right to change the subject, throw smoke in our eyes, saying something else is the problem when they aren’t bothering to check. We’ve had enough lies. This is not a football game where deception is a winning strategy. In human life, deception is sinful, immoral, totally unacceptable. Taking risks with other people’s lives and making excuses for it is criminal.

If there is an economic problem, then, as many labor leaders have suggested for decades, let’s share the work, or create other jobs that don’t do damage – jobs aren’t an excuse for hurting people. Hurting people isn’t a job; it’s a crime. People aren’t entitled to work at criminal enterprises.

The Cabinet and the President and the Members of Congress and the state and local governments aren’t entitled to commit the crime of murder by poisoning the environment. Pro-lifers and liberals should be united on the environmental front given the enormity of the killing, of adults, children, fetuses and sperm. We’ve all seen multiple films with populations at risk and the starship or other craft working hard to prevent destruction of civilizations. The authors of those stories were trying to portray the immorality of destroying civilizations, and they were warning us of the likelihood that we would face that problem.

How many of us are moral enough to deal with this issue? Isn’t it criminal to support the rape of the air, land, food and water that give us life? Isn’t it criminal to carelessly poo-poo the dangers? How many of our corporate and elected officials are criminals?

Those with so little respect for the lives of fellow human beings must repent, stop and stop those who do, immediately and completely.

— This commentary was broadcast on WAMC Northeast Report, March 21, 2017.

[1] https://www.nytimes.com/2017/03/11/opinion/sunday/are-your-sperm-in-trouble.html.

Choose Life

I want to focus on a serious issue that is being ignored in favor of all kinds of fake news and grandstanding. In college, I took a course on demography. That means we were looking at the explosion of population in parts of the world, which then leveled off, but at much higher levels than before. Everything we are struggling with in this twenty-first century is related to that explosion of population.

The most significant advances in our longevity were the result of public health advances, precisely the things that people don’t want to spend on right now, on our water and sewer systems. I remember my dad asking every owner of places where we stopped for the night whether the water was potable, meaning it was drinking water from which we would not get sick. That was new in his lifetime. And by the way, my dad grew up in Brooklyn, in New York City, using an outhouse. Sure many of us have used outhouses at one time or another but they are not the best protection for public health in large communities – septic systems take lots of space.

After water and sewer systems, penicillin probably made the biggest difference – it’s probably why I’m talking with you today but never met my sister who died at the age of three before the discovery of penicillin. Those advances added decades to our lives by comparison to very short advances from modern medicine and surgery.

And they are a large part of the problem of global warming. There are lots more of us burning things, driving cars, using electricity, getting what we need for business or pleasure from the furthest corners of the world. That takes energy. Energy has been produced by burning things. And so the world gets hotter, the oceans expand, tropical diseases proliferate, and life threatens to get nasty, brutish and short once again. And efforts to mitigate that will be overtaken if population continues to expand – worldwide it’s doubled in my lifetime.

So when I hear about advances in medical science, like the possible elimination of malaria, I think how wonderful for the likely victims, and then I wonder about the global impact. There is no free lunch. We can make lots of advances. But the world has its limits. More people will put more stress on the environment. And stress on the environment is already heading us toward the next major extinction – us, human beings, our children and grandchildren.

And so I think there is a trade-off between our health and our numbers. There is no human life after we are extinguished – only death and tears. So let’s be clear, I am very pro-life, but to be pro-life demands support for birth control, especially the kinds that prevent conception.

There is no so-called pro-life position that is not also a position about death. It seems to me that The Church and all houses of worship, must rethink their positions about death and destruction along with their positions about conception. The two are intertwined by laws well-beyond our ability to control. Yes the Bible says choose life, all our bibles say that in some form. But are we choosing life if we ignore the reality of death, destruction, and extinction?

— This commentary was broadcast on WAMC Northeast Report, Feb. 28, 2017.

Suckers for Trump

Let me begin by reminding you of Trump’s claims,[1] and end with some questions.

“I’m totally pro-choice” he declared and then took it back: “I’m pro-life” and told MSNBC that “there has to be some form of punishment” for a woman who has an abortion, later modified that only the doctor should be responsible. Plus he supported Planned Parenthood, and defunding them.

Remember the poor woman in Providence whose house was taken under eminent domain? “Eminent domain is wonderful” he told Fox News, and within a month told another outlet, “I don’t like eminent domain.”

He told CNN “I’m an environmentalist,” but tweeted “Global warming is a total, and very expensive, hoax!”

He once “support[ed] the ban on assault weapons and … a slightly longer waiting period to purchase a gun.” but “I don’t support it anymore.” Now he says he’s “the strongest person running in favor of the Second Amendment.”

In 2000 he said “We must have universal health care” but his campaign website read “It is not enough to simply repeal this terrible legislation,” and says he’d substitute “free market principles” on health care.

On taxes, in 2015 he described his tax plan as “a big tax reduction, including for the upper income.” On May 5 he told CNBC “I am not necessarily a huge fan of” cutting taxes for billionaires.

It’s not clear who Trump likes as people. First he refused to denounce the Ku Klux Klan and other white nationalists supporting him. Under fire he reversed course but many white supremacists, including David Duke, continue to support Trump. He’s blown hot and cold on refugees: “on a humanitarian basis, he said, “you have to” take in Syrian refugees. But now he wouldn’t. “I love Hispanics!” he tweeted on Cinco de Mayo, pictured with a taco bowl. Except of course that he wants to build a wall and send them all back to Mexico.

Donald thinks military policy is a cinch, “It would take an hour and a half to learn everything there is to learn about missiles. … I think I know most of it anyway.” He waffles on whether he would trust the Russians or not. He liked NATO, the North Atlantic Treaty Organization, which unites Europe and the U.S. militarily. “I see NATO as a good thing” he said recently but six days later decided “NATO is obsolete.”

The Middle East befuddles him. He supported invading Iraq. and crowed that “It looks like a tremendous success” but four days after that said, “The war’s a mess.”

He supported fighting in Libya: “Qadhafi in Libya is killing thousands of people, nobody knows how bad it is, and we’re sitting around, we have soldiers, all over the Middle East, and we’re not bringing ‘em in to stop this horrible carnage. … We should go in, we should stop this guy, which would be very easy and very quick.” But he said later, “I never discussed that subject.… We would be so much better off if Qadhafi were in charge right now.”

What are we supposed to make of Trump’s contradictions and about-faces? Does the adjective he uses endlessly to describe Hillary fit Trump better? Does he know what he’s talking about? I’m more interested in how we decide what he’s for? He’s inviting people to buy their own dreams. Whatever you’re for, he wants you to think he is too. Selling people their own dreams is a great sales tactic. It’s natural to believe others think like us. But if we guess wrong, who wants to be Donald’s sucker?

— This commentary was broadcast on WAMC Northeast Report, May 31, 2016.

[1] Clips collected on http://www.politico.com/magazine/story/2016/05/donald-trump-2016-contradictions-213869;  Michael P. Lynch, Truth, “Politics and the Power of Contradiction,” New York Times, May 8, 2016, at SR2, available as Michael P. Lynch, Trump, Truth, and the Power of Contradiction, http://www.nytimes.com/2016/05/08/opinion/sunday/trump-truth-and-the-power-of-contradiction.html?_r=0; “A Trump Sampler: His Changing Views,” New York Times, May 8, 2016, on page SR2, available at http://www.nytimes.com/interactive/2016/05/08/sunday-review/a-trump-sampler-his-changing-views.html.

The Earth will have its Revenge

One of the major drivers of global warming is the greenhouse gases we emit by burning fossil fuels. Another major driver of global warming and one of the ways in which we are making our earth unsustainable for human life is the population explosion. When I was young the earth’s population was around 3 billion. It has more than doubled. When we talk about the growth of population, the crucial issue is about the time it would take to double. Population can double in as little as a generation. We are on the way to an earth with 12 billion people and counting. The devastation that is causing and will cause is incalculable and will make the earth inhospitable in short order, contributing to the overuse of water, the over fishing of the oceans, the deforestation of the jungles, the overuse of carbon based fuels even while we try to flush them out of the atmosphere and every other form of damage to the earth we depend on.

That makes population policy a tremendously important issue worldwide. Years ago we used to talk about ZPG, zero population growth. The idea had been talked about for centuries but a best-selling book, The Population Bomb, written by Stanford Professor Paul Ehrlich and his wife, Anne Ehrlich, helped make it a movement in 1968. Just a few years later, the movement was hijacked by the national battle over abortion. But population growth did not suddenly become unimportant. It remains at the root of the unsustainability of the world we inhabit.

We have a choice, we can curb the growth of population voluntarily, or an angry earth will do it to us, reducing our children and grandchildren to refugees, beggars, and marauders and leaving them to die of thirst and starvation or gasping for oxygen, if they are not killed by armed bands looking for the scraps of the earth.

Naysayers like to point out that Malthus’ prediction of worldwide starvation has not yet come true. But the evidence that Malthus’ prediction is coming true is all around us. Lands once fertile are becoming deserts. Trees once crucial to a sustainable atmosphere are being chopped down at alarming rates in the southern hemisphere with worldwide consequences. Fish stocks have been shrinking and even more important, the coral reefs that are at the base of the oceanic food chain are dying. May Malthus rest in peace, but we are seeing what he feared. Human beings have never been good at listening to prophets. Those of us living now can’t claim we were not warned. We can only claim that too many people scoffed as they scoffed at the prophets of old. The earth will have its revenge.

I do not want to treat abortion as part of this problem because it raises so many separate issues and debates. But I do want to treat almost every other method of birth control as very much part of the issue. Whatever your faith, we have an obligation to life, to treat our world with the respect it deserves. Religious proclamations about populating the earth made thousands of years ago have been accomplished, and must now be subordinated to religious and secular claims about life, about treating each other as required by the Golden Rule, about protecting the soil and the air and the water that give us all life. There is no escape from that injunction. Or the earth will have its revenge. Make sure the people you elect start protecting us from world-wide disaster.

— This commentary was broadcast on WAMC Northeast Report, March 15, 2016.