Organize to Vote

May 2, 2017

All of those who took part in recent demonstrations – the women’s marches, Black Lives Matter and others aimed at protecting civil liberties, immigrants, the vulnerable and the less advantaged – we are not a minority.

But demonstrations aren’t enough. This country is ruled by ballots. Protests matter when ballots threaten. Nonvoters are routinely discounted. So the next step is to organize to vote.

That’s where demonstrations become a major opportunity. Those who marched can be helped to register or they can help others register and vote.

Marchers need to be asked: whether they are registered to vote; whether they are registered at their current address; whether they are registered to vote in the primaries; whether they have been getting to the polls and voting; and whether they know others, in this or any other state, who need help or encouragement to register and vote. Would you get registration forms for others?

Demonstrations can lead to votes in other ways.

Demonstrate at the Board of Elections to make a difference by showing we want to vote, we’re signing up to vote, we’re ready to vote. Let’s show up where it matters.

Demonstrate outside the 100 foot or other state defined zone where electioneering is prohibited, showing and sharing the fact and the joy that we voted, and you voted, and we performed our civic duty for each other and we did it together and we’re celebrating – those are demonstrations that can make a difference.

What’s crucial about the demonstrations we all took part in doesn’t end with the message. That’s the beginning; that’s what got us fired up and brought us together; that’s what made clear our commitment and our shared sense that acting as a people is empowering. But what matters is converting that commitment – the joy, the fire in our hearts and the messages we marched for – into votes.

Democracy depends on what happens at the voting machines. It’s run by votes and the threat of votes. Even campaign contributions are ultimately about votes. Voices are most powerful when they lead to votes. If we vote, we count. If we stay home in disdain because we’re not satisfied, we’re politically irrelevant. Vote. Count. Take back our democracy – for us, for all of us, for the people. Don’t let the moneychangers and the slick talkers take the forms of democracy for their own benefit. We vote; we count; and we celebrate.

Why look at that now? Because the organization that makes voting happen, the organization that makes the voices of the people matter at the polls and on the ballots, all that organization starts way in advance. Because every state has its deadlines. And back before the deadlines, organization is not instantaneous. Let’s create our political snowball. Let’s terrify the politicians with our strength so that they’ll actually have to behave democratically, according to the rules, principles and methods of democratic government.

Wouldn’t that be refreshing!

— This commentary was broadcast on WAMC Northeast Report, May 2, 2017.


Brotherhood

April 25, 2017

In the height of the Civil Rights Movement we used “brotherhood” to express our quest for more than tolerance, but for closeness as one human family. I’ve never found a gender-neutral term for that feeling, so I continue to use it but in a gender-neutral way – we are all family, cousins, a part of one community. As John Donne famously wrote in 1624, “never send to know for whom the bell tolls; It tolls for thee.”

Given the waves of hate crimes since the election, I’ve been thinking about brotherhood. This country is built on brotherhood, on sloughing off the ethnic, religious and physical prejudices our ancestors all brought from their old countries. By now those prejudices seem irrelevant. Many of us intermarried and were welcomed in new families. A friend told me that Bahai do it intentionally to bring people into the faith, though he was truly smitten and has a loving marriage. Most of us just happen to fall in love and old prejudices seem quaint and silly.

But brotherhood matters. Many of us watched the shredding of Yugoslavia. An exchange student from Belgrade was living with us, beside herself with grief and anger at the destruction of her country. Some had predicted Yugoslavia would explode once Marshal Tito died. But many intermarried, traveled among Yugoslavia’s regions, and young people, like our visitor, thought of themselves as Yugoslavs. But it came apart, viciously, in a blood bath of what was called “ethnic cleansing.”

Americans like to think America is and will always be ingenious, hardworking, neighborly and welcoming; that’s us – we’re the best. But many of us understand that virtues have to be nurtured, not assumed.

Early in the last century, President Teddy Roosevelt predicted “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.” The draft brought people together who had lived geographically, religiously, ethnically or racially segregated lives. As men returned from war, they introduced each other to sisters and friends, integrating families and communities. But the political strains of war in Vietnam ended the draft. Ben Downing recently urged national service on this station but we have nothing that compares with the reach and impact of the draft.

Racial segregation was made much worse by federal officials who required banks to redline cities and suburbs against loans to African-Americans no matter how strong their financial status. That left segregated school districts. Many of us still try to make our schools “great agents of democratization.” But racially homogenous student bodies make integration difficult or meaningless, and courts have made it worse.

Sports and entertainment still reflect integration. I once told Jackie Robinson’s widow how much it meant to grow up rooting for her husband. Black faces have been on national television as long as I can remember. My mother screamed with joy when William Warfield came out on stage and announced he would sing Old Man River. And I’ll never forget the sound of Marion Anderson’s voice when I heard her live. I’ve only caught glimpses of Oprah Winfrey but bless her influence. Familiarity, like minority newscasters and public officials, helps to diffuse prejudice and fear.

The Southern Poverty Law Center and the Anti-Defamation League rely on litigation to put racist groups out of business and catalogue hate groups, warning us about their activities and sharing strategies to extend the warm pull of brotherhood.

Other groups try to bring people together, to meet and appreciate each other, like the Interfaith Alliance, individual churches, temples and Muslim Community Centers, who invite people to meetings and festivals. We’ve often broken bread in the Muslim community.

But nothing matches what the draft and schools once did for so many of us. We need better ways to advance peace, justice and brotherhood.

— Most of this commentary was broadcast on WAMC Northeast Report, April 25, 2017.


Polarizing America

January 31, 2017

I’d like to give my spleen a break for a week and talk about some of the dynamics that are polarizing  America, that neither side can solve because the problem is structural. Law has contributed with crucial changes regarding political parties, the media, the draft and residential segregation (which Brown did not prevent). I’d love to hear good suggestions for countering the polarizing effects of those legal changes.[i]

Primaries originally broke up state monopoly parties. We’ve long known that primary elections push candidates apart to appeal to their parties’ most committed voters. After 1968 the primary system became the exclusive method for nominating presidents, pushing the parties further apart.

In broadcasting, three networks controlled radio and television until Congress changed copyright rules, allowing cable television expansion to over a hundred channels, and niche broadcasting to separate audiences. The courts and Federal Communications Commission also killed the Fairness Doctrine, which required broadcasters to present a balanced presentation of controversial issues of public importance. Then Congress made it almost impossible to hold any internet company responsible for even the most outrageous falsehoods published on their systems. Those media law changes made it unnecessary to pay any attention to opposing views. Plus, instead of limiting damages for defamation, as Justice Marshall suggested, the Court gave media much more complete protection.

At the Federal Housing Administration, officials long refused to insure mortgages to African-Americans, regardless of income. That prevented African-Americans from joining the march to the suburbs, drove disinvestment in their existing neighborhoods, and pushed us apart.

The end of the draft has been huge. The military had drafted people without regard to wealth, class, or geography. President Teddy Roosevelt said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.”[2] And indeed the soldiers came home with lifelong buddies from all over America. Arguments about the Vietnam war ended the draft and led to the so-called volunteer army, which doesn’t reach the same cross-section of America. That changed our attitudes toward each other, and how polarized we’ve become.

There were good reasons for the changes to the nominating system, the media, and the draft but the combined price has been to polarize us. Polarization matters. It blocks our ability to listen to each other, even to care about each other. And if we can’t care, the very notion of public welfare, what’s good for all of us, seems like self-pleading.

The market can’t pick up the slack; it fails in many ways. Worse, for market ideologues, democracy, the major counterforce to the market, seems illegitimate. In other words, the stakes are huge – the legacy of our Revolution, our Constitution, and our collective welfare. Somehow, we have to break down polarization, and restore what used to bring us together or find substitutes – for public schools, military service, media that reached across aisles, and integrated housing and communities.

I doubt the cat can be put back in the bag, especially in this polarized environment, but I’d love to hear good suggestions.

— This commentary was broadcast on WAMC Northeast Report, January 31, 2017. For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[1] For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[2] Quoted in John Whiteclay Chambers, II, Conscripting for Colossus: The Progressive Era and the Origin of the Modern Military Draft in the United States in World War I, in The Military in America from the Colonial Era to the Present 302 (Free Press, Peter Karsten, ed., rev. ed. 1986).


The March in Albany

January 25, 2017

This weekend was busy. The New York Civil Liberties Union, the National Lawyers Guild and others trained people in nonviolence and to serve as observers for the Women’s March on Washington, including a couple of training sessions at Albany Law.

Saturday I joined the Inaugurate Resistance March here in Albany. People joined the crowd from every direction, walking toward the planned start of the march. With so many people it was long before I saw anyone I knew. State Senator Neil Breslin commented to me that a march of this size had never happened in Albany. The only numbers I’ve heard seemed much too conservative – this was really big.

I saw speakers and marchers from women’s groups, Citizen Action, Upper Hudson Planned Parenthood, the Coalition Against Islamophobia, labor unions, religious leaders, community service groups, gay rights groups, and many others.

Eventually I ran into friends who’d served in the Peace Corps, or been mainstays of activism in this area. I got close enough to the rear of the platform to see the back of speakers’ heads.

A common theme was solidarity across all the causes we each primarily work on. United we stand and can protect each other. Divided we fall; we’re all vulnerable separately. All for one and one for all.

When John Dunne wrote the immortal lines, “Ask not for whom the bell tolls, it tolls for thee,” he wasn’t whistling dixie. Our welfare is bound to each others’:

  • Slavery to northern workers was both morally indefensible and a threat to their own livelihoods.
  • Sweatshops bring down everyone’s paychecks and safety.
  • Minimum wages affect everybody’s wages. It’s about whether some people can take advantage of other people, and us.
  • Abuse of women threatens our families and our children – do I have to count the ways?
  • Abuse of any of us – racial minorities, immigrants, gays, lesbians and the trans-gendered, any of us – threatens all of us.

Treating people like trash threatens us all – by example, not to mention their business, their support for us, and the damage to all of us of making some people desperate – desperate for jobs at any price, desperate for food, clothing and shelter for themselves and their families, at any price. Desperation threatens everything and everyone.

The folks at the Inaugurate Resistance March got it. We celebrated our inter-dependence and we cared about each other. I like to quote the ancient Rabbi Hillel who asked the people, “If I am only for myself, who am I?” In that crowd I enjoyed the reaffirmation of our mutual concern. Need I point out for the doubters that a major reason for our country’s success was our ability to work with each other – it matters that we see each others’ humanity, brotherhood and sisterhood.

But that cannot be enough to deal with the blowhard in Chief. The Tea Party’s example was its organizing. Their targets were primaries to take over the Republican party and publicity to take over the public agenda. Obviously it worked. And it will work for liberals too.

It must. Obama’s election was a major step toward a just, decent world. The blowhard-in-Chief is poised to take the brotherhood of mankind apart. It’s our job to make that fail, never to be resurrected, and drive its proponents out of American politics. It’s our job to keep in touch, stay united, publicly push for a decent America until the racist blowhards are sobbing in their caves. We’re the majority and we’ll make OUR muscle felt.

— This commentary was broadcast on WAMC Northeast Report, January 24, 2017.


Postmortem

November 15, 2016

I feel like I’m in mourning. The presidency has been taken by a con man and we all deserve better – those he’s duped as well as the rest of us.

  • Trump was “elected” by an “electoral college” system designed in the 18th century to protect slaveowners by augmenting their votes with 3/5 of their slaves.
  • He was “elected” by a Court unwilling to protect the voting rights of all American citizens.
  • As in 2000, when Al Gore won the popular vote but George Bush became President, the 2016 popular vote went to Mrs. Clinton. President Bush proceeded to make colossal mistakes in foreign affairs for which this country will spend a century paying.
  • Trump was elected with the votes of people who had suffered financially over the past two decades – but they voted for the very people who refused to lift a finger to provide jobs, people who don’t believe government should do anything, including good and important things, and for whom blocking anything Obama wanted to do was more important than helping fellow Americans. With Republicans benefitting from that cynical and deceitful strategy they are back in control of Congress. Good luck to the coal miners, autoworkers, steelworkers and others – they’ll need it.
  • We will now have a dirty old man in the White House as a “role model” for the worst behavior toward women.
  • And his rhetoric threatens to take apart the signal achievement of America – our mutual respect across faith, national origins, class, race, and counting – an achievement central to the status and future of the very people who voted for hate.

I am worried, crestfallen and embarrassed. What is there to do?

First, I have become a supporter of Supreme Court term limits. Rehnquist spent 34 years at the Court, Stevens 35, Scalia 30 and Thomas has been there 25. Erwin Chemerinsky, widely respected dean at the University of California at Irvine School of Law wrote:

The idea is that each justice would be appointed for an 18-year, non-renewable term. A vacancy thus would occur every two years. Vacancies that occur through resignation or death would be filled by appointing someone to serve the unfinished part of the term.

That way the Court would not be dominated by political decisions made decades ago.

Second, I would not confirm any new justice until there is agreement to reverse the decision that allowed states to monkey with their election rules to disenfranchise voters, and until there is agreement to adopt one of the mathematical rules that precisely measure gerrymandering, the level of favoritism to either party – known as symmetry or wasted voters. Some will object that those decisions are for the justices. Nonsense – the appointments clause is the political check and those decisions put the justices’ prejudices ahead of self-government and assured Republican victories, roles no judge should be playing. Those decisions were partisan, self-serving and should be ruled unconstitutional.

Third, we need to get across to people that refusing to vote because there is someone else we like better is a very bad choice because it has very bad consequences. In a democracy, to live and work together we have to be willing to compromise. It’s part of the deal.

Finally, we need to organize. 2018 is two years away and Congress will be at stake again. True patriots don’t give up.

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


Hilary

September 27, 2016

I’ve been traveling and so I’m playing catch up. But I was shocked at the reactions I heard to Hilary’s illness. I expected people to do what we do when most people get sick – wish her well and hope she can get over it quickly. What I heard was just grousing that she said she was fine.

What do you and I do when people ask how we are? “Fine how about you?” “Good, I’m fine too.” Got a cold? “Nah, I’m fine. How about you?” In America we’re taught to be tough and not complain. In fact, if I ask my students how they are, their most common answer is “Can’t complain.” I often joke back, asking what they’re doing in law school if they can’t complain. I once passed one of my best college profs and with the usual pleasantries, I asked him how he was. Prof. Babbitt leaned in toward me, with a smile on his face, and burst out “Terrible!” Then he straightened up laughing and walked on, leaving this college kid totally nonplussed. But I got the message. We’re taught to be strong; that’s the way Americans handle illness. And we admire that in others.

But people didn’t give Hilary the benefit of adhering to our standards of behavior. The woman tried to tough it out like we’re all taught to do but the press crucified her for it. Thank heavens I’m not running for president; I don’t need that nonsense. You’d of thought people would have the grace to wish her well instead of crucifying her for trying to put a strong face on an illness.

I hate to tell you folks but anyone can get sick, including presidents and candidates, whether they try to tough it out or play bluster about their health. We can argue ‘til kingdom come about what Hilary should have done. But what she did do was to behave the way we are all taught to do. How bad is that? As for me, I wish her well.

I also wish that people would give her the credit she deserves. She’s pretty obviously a very intelligent person, and had the benefit of a terrific education. She could have earned a mint as a lawyer. But she left her practice and devoted herself to public service. I respect her for that.

She was our senator here in New York and what I kept hearing was that she won a great deal of respect all over the state and in Congress because people quickly saw that she worked hard at the job, worked on the needs of the whole state, studied the problems, and worked with everyone she could to solve problems. She was our senator and she took that seriously. I respect her for that.

She’s also been criticized for the way she handled some of her husband’s mistakes. But we are all taught to forgive. Hilary did, and she was crucified for it. We used to be taught that marriage is permanent, for all time. Hilary stuck by her husband and got crucified for it.

It seems that there is no code of behavior that is good enough for Hilary. But I respect her as a person who is doing her best to work for me and for you. She ought to get a lot of credit for that.

— This commentary was broadcast on WAMC Northeast Report, Sept. 27, 2016.


Sotomayor’s dissent in Utah v. Strieff, Part I

August 31, 2016

I want to read you a portion of a recent dissent by Justice Sonia Sotomayor in which she explains what I think many do not understand about what happens when police stop people on the street.[1] I will skip her citations but you can read them on the website. She wrote the last part of her dissent for herself alone. I think it is well worth your hearing that portion of her dissent in Justice Sotomayor’s own words:

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.

Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact.[2] That justification must provide specific reasons why the officer suspected you were breaking the law,[3] but it may factor in your ethnicity,[4] where you live,[5] what you were wearing,[6] and how you behaved.[7] The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous.[8]

The indignity of the stop is not limited to an officer telling you that you look like a criminal.[9] The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline.[10] Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.”[11] If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’”[12]

The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.”[13] At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.”[14] Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check.[15] And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.[16]

More next time.

— This commentary was broadcast on WAMC Northeast Report, August 30, 2016.

[1] Utah v. Strieff, 136 S. Ct. 2056, 2069-71 (2016) (Sotomayor, J., dissenting).

[2] Whren v. United States, 517 U. S. 806, 813 (1996).

[3] Terry v. Ohio, 392 U. S. 1, at 21 (1968).

[4] United States v. Brignoni-Ponce, 422 U. S. 873, 886-887 (1975).

[5] Adams v. Williams, 407 U. S. 143, 147 (1972).

[6] United States v. Sokolow, 490 U. S. 1, 4-5 (1989).

[7] Illinois v. Wardlow, 528 U. S. 119, 124-125 (2000).

[8] Devenpeck v. Alford,  [2070]  543 U. S. 146, 154-155 (2004); Heien v. North Carolina, 574 U.S. ___,  (2014).

[9] See C. Epp et al., Pulled Over, at 5 (2014).

[10] See Florida v. Bostick, 501 U. S. 429, 438 (1991).

[11] Terry, 392 U. S., at 17.

[12] Id., at 17, n. 13.

[13] Atwater v. Lago Vista, 532 U. S. 318, 323-324 (2001).

[14] Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___,  182 L. Ed. 2d 566, 573 (2012); Maryland v. King, 569 U. S. ___, 186 L. Ed. 2d 1, 30 (2013).

[15] Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33-51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341-1357 (2016).

[16] A. Goffman, On the Run 196 (2014).


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