Heaven in Hawaii

November 11, 2019

We were out of town most of last month and the trip back took three separate flights, all the hassle of traveling by plane, and more than 24 hours from leaving my wife’s cousin to walking into our front door. We’re still recovering from the time difference, the lack of sleep and the heat wave in heaven.

Yes, I’ve been to heaven and back and made interesting discoveries. First, some locals call it HaVaii – no W in the sound. In heaven, there are people from all over the world, down under and up top, east and west, all the continents and colors, many of whom speak six languages and everybody smiles. Yes it’s possible to pull a muscle even in heaven but when I fell two men rushed to help me – one had ancestors in Africa, the other in Europe – and both were lovely, wonderful men, determined to get me back on my feet.

Strange things happen in heaven. Mark Twain thought it very strange that human beings assume that everyone will play the harp in heaven though most wouldn’t be caught near one on earth. Perhaps equally strange, my wife got me into the ocean. I hadn’t done that in decades since our children were small. I had good memories of the Atlantic near West Palm but I forgot about the surf in Jones Beach and it played with me like I was a toy. When my wife tried to help me, it knocked us both down.  One more thing an aging reader and sitter like me has to relearn – how to face the ocean, stare it down and charge.

Life is so different in Hawaii from the constant patter from Washington about race, color, ancestry and who the heck is better than everybody else. Hawaii is proof that life can be lovely. Except that so many people, and worse, builders and hotel magnates, have made that discovery that they have changed the climate. One of our taxi drivers told us how lovely the climate was on the hill behind Honolulu. And my wife remembered it from a trip half a century ago – though we were clearly a couple by then we came home from Iran at different times and by different routes so I missed seeing Hawaii before there were clouds in heaven.

A photo of my wife was taken in D.C. with a frame that said “citizen of the world.” That is what peace means – that we are citizens of the world and recognize the same in others, treating others, all others, like we ourselves would like to be treated, the Golden Rule, or loving our neighbors as ourselves, another biblical formulation.

I’ve had that pleasure before – on the mall in Washington the day Martin Luther King told us about his dream, or in the offices of the NAACP or the legal services program, in the company of many of this area’s great folk singers, former Peace Corps Volunteers, or sometimes just on the streets of New York where people have learned to live and love together, and among other dear family, friends, colleagues and neighbors – I’ve been lucky enough to live and work largely in supportive environments. It’s a wonderful feeling, to see the love without having to watch your back. It spells peace in many languages, and heaven too.

Even heaven isn’t perfect. There are justified complaints about the way those with native Hawaiian ancestry have been dispossessed of some of what should be theirs but it’s still a joy to see the way people live and work together. On the way out, I had a chance to interview two African-American women who’ve been working there, one a military officer, and they confirmed the rewarding pleasures of living and working with people there.

There’s so much more to enjoy in the islands than beaches and breezes, luaus and leis. You’ll find great examples there of the spirit that made America great.

  • This commentary was broadcast on Nov. 5, 2019, on WAMC/Northeast Public Radio

Take America Back

March 18, 2019

It is painful to see the forces of hate killing men, women and children on many continents and here in many states, in schools and public places, taking apart the work of what we have been honoring as the greatest American generation who spilt their blood for the America they loved. It is painful and frightening to see the effort of the alt-Wrong to rip apart the free world that this country took the lead in creating. It’s painful to see terrorists crediting an American president as their inspiration for murder.

When I was a small boy, American men were fighting, and dying, in the Pacific, Africa, Italy and, after the landing in Normandy, through France and Germany. They were struggling for freedom, democracy and brotherhood. As the war ended, Truman sent Franklin Roosevelt’s widow, Eleanor Roosevelt, to the UN. Truman sent her there to make clear to the world the depth of America’s commitment to building a robust and sustainable free world. She chaired the seventeen-­member UN Commission on Human Rights and led that body in the development of the UN Universal Declaration of Human Rights. You could have drawn much of it from our own Constitution. These were American ideals on the world stage.

In 1948, the Supreme Court under Chief Justice Vinson held racially restrictive covenants unconstitutional. Then in 1952 the NAACP brought five cases to the Supreme Court challenging segregation and seeking to overrule Plessy v. Ferguson, the case that had upheld segregation in 1896. The Truman Administration told the Court that the US was being attacked around the globe because of segregation and that segregation complicated American foreign policy. Obviously important, the case was reargued after President Eisenhower took office and Chief Justice Vinson had died. Eisenhower’s Justice Department submitted its own brief to the Court, and it underscored the arguments of the Truman Administration that this country needed to end segregation. The Supreme Court agreed; in Brown and a series of cases it made clear that American government could make no distinction of race, creed or heritage in its treatment of Americans.

Americans cheered Brown and made clear it was a popular decision. We believed what they said in the Declaration, that “all men are created equal.” Americans fought a Civil War over that principle. By the time of Brown, this country had embraced people like Jesse Owens, Marion Anderson, and Ralph Bunche among many others. With some obvious and vocal exceptions, Americans embraced the end of segregation. That is the America embraced the world over, admired for its principles and its heart. That is the America that took all of us to its heart regardless of which country our ancestors came from, which faith they brought. That is the country that our ancestors embraced with both love and pride, the America they wanted to be part of and contribute to. That is the America they wanted for us. That is the America we need to take back.

An America with neither mind nor heart clearly needs a trip to see a Wizard of Oz. An America with a man in a position of power who gloats that “I could stand in the middle of Fifth Avenue and shoot somebody” with impunity is an America which actually does need to deport someone, and to wall out the orange-haired imposter before he corrupts our genetic inheritance.

— A version of this commentary was broadcast on WAMC Northeast Report, March 19, 2019.


The Sacredness, and the Uniqueness, of Brotherly Love

July 17, 2018

The ethnic slaughter in so many parts of the world – Kenya, Myanmar, Rwanda, Sudan, the former Yugoslavia, the “troubles” in Ireland, Ukraine, the blood shed at the separation of Pakistan and India – make the uniqueness of American anti-discrimination rules stand out both for their moral high ground and for their protection of human life.

They provided a way to live together in peace, even if getting there has been difficult. They provided a beacon, a light to the world, on living together. Conceived in part as a city on a hill; America was to light the world with our example. Indeed it has. That strong belief in the equality of mankind and the welcome to people from all across the globe has always been attractive.

The Enlightenment in Europe was largely about the idea of equality and learning to live with people despite differences in religion and diverse origins. America was founded on that Enlightenment ideal and, while never quite satisfying its own ideals, to an appreciable extent lived it. In the colonies, after the Revolution and until modern times, the U.S. has welcomed immigrants. Protestants, Catholics, Jews, Muslims and other faiths were here from the Founding and helped build this country. It is an experiment both in peacefulness and in the Biblical injunction to love thy neighbor, to do unto others as we would have them do unto us. It has been a religious enterprise, a nation building enterprise, and an enterprise in foreign affairs for which this nation has been justly celebrated.

Until now.

Would Ireland, India and so many other places have escaped their rivers of blood had their colonial rulers sought to bring people together in fairness, and ruled from the moral high ground, rather than striving to divide that they might conquer? To imagine is to wish for them the brilliance of the American solution.

America has brought peoples together for centuries. Public schools were conceived to bring together rich and poor, and they were soon called to bring together boys and girls. The military and large businesses made it their mission to bring people together across ethnic, religious and language boundaries that they might have unified armies and a unified workforce. Businesses created Americanization programs from which immigrants emerged proud Americans. Teddy Roosevelt told America that nothing brings men together like the military tent. Even racial prejudices have been receding in the face of integration – this nation has been celebrating African-Americans in music and the arts from the beginning of the twentieth century if not before, in sports especially since Jackie Robinson joined the Dodger lineup in 1947, and in many other areas since as having colleagues, bosses, employees, neighbors, friends and even spouses from different communities of race, religion and ethnic identity has become much more common. This march toward realizing the promise of equality has been going on for two hundred fifty years. Much of America has been shaped by that march, by its progress, by its moral growth.

Nothing has been more American than reaching out – in private groups and NGOs that have provided services abroad, and in government groups like the Peace Corps, US AID, Volunteers in Service to America, programs to acculturate immigrants here, provide the tools to leave poverty behind, and bring people from all cultures together in our schools and businesses.

Nothing has been so attractive to the world, as the fact that people everywhere could see themselves in us. It is a great heritage, a bulwark against all the beasts of the world; we must not forsake it.

— This commentary was broadcast on WAMC Northeast Report, July 17, 2018.

 


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.


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.


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).


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