Health Law Arrogance

There’s so much to talk about, but let’s go out for a walk or step into a shop. Unfortunately, some people pugnaciously claim the freedom to ignore health laws.

In 1824, the earliest discussion I know of by the U.S. Supreme Court, Chief Justice Marshall delivered the Court’s opinion that states have the power to protect the health of the people with “Inspection laws, quarantine laws, health laws of every description….” He added that the constitutionality “of the quarantine and health laws … has never … been denied.” And he continued that they “flow[] from the acknowledged power of a State, to provide for the health of its citizens.” Some states do that well and some badly, but Marshall’s point was that they have the power to protect their people.

The freedom to behave in ways which violate health laws and risk the health of our fellow citizens is purely selfish and unsupported by anything our forefathers fought for or wrote in our constitutional documents. Chief Justice Marshall’s decision nearly two centuries ago remains the law of this country.

Too many people corrupt the notion of freedom into the freedom to do whatever they want, no matter the risks to others. It has never meant that. That corruption survives only as an index of some Americans’ lack of public spirit.

Americans have lost an understanding of the seriousness of freedom. It was never about trivialities when government has a reasonable basis for regulation. Could you claim that you should have the freedom to risk your own life by ignoring a red light? Should the engineer have the right to nap in the cabin with the train in motion? Even if he wanted to commit suicide or didn’t care if he were killed in his sleep?

Republicans used to talk about responsibility. They were talking mostly about social conventions, particularly sexual ones. Responsibility to others lost its appeal to Republicans as law began to impose obligations in the Progressive Era at the end of the 19^th century. Law made corporations take responsibility for working conditions. Law allowed regulation of monopolies like telephone and power utilities.

Responsibility to others certainly involves costs – costs to spot and deal with poison in the waste and garbage dumped by companies; costs to deal with dangerous equipment in their shops. Protecting people from behavior that could cause damage or injury can certainly feel like a nuisance to the companies.

But with that kind of attitude at the top, no wonder that ordinary people claim the same privilege of ignoring harm to others. So-called “free marketeers” claim that privilege for their companies although their economics has long since been discredited. But now lots of people claim the right to behave without concern for the consequences for anyone else. I think Steven Pinker’s book The Better Angels of Our Nature: Why Violence Has Declined, was premature because it looks like we’re going backwards. Violence may have declined, but the Court has now authorized us to carry guns and, though still with limits, backed the ideology of the free-marketeers, the Tea Party, and the guns rights lobby that they can do a lot of what they want.

Liberalism was always about a world where everyone is free, but it was never about irresponsibility. Republicans once believed that we all have responsibilities. Being an American is about more than waving flags; it’s about showing up and helping out.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on August 25, 2020.

Our Human Constitution

Recently I spoke with a class of high school girls. They asked me to talk about the Constitution and we agreed I’d talk about how we interpret it. I wasn’t advocating any particular method. In fact, I referred to the late Justice John Paul Stevens, adopting an observation by the then sitting president of the Israeli Supreme Court, that a judge does best who “’seek[s] guidance from every reliable source.’”[1]

While talking with the girls, I finally realized how to encapsulate what I wanted to say: The Constitution is a human document, written by human beings for use by human beings. It is not self-executing. There’s nothing automatic about checks and balances. They work when people believe in and use them. They don’t work when people in power care only about favoring themselves and their friends.

That’s not a flaw in the document. There are flaws in the document. It still bears the marks of slavery  ̶  numerous clauses were designed to protect slave-owners even though the word slave does not appear. And it was written by men for men in 1787. But the men who wrote the Constitution referred to its prohibitions as “parchment barriers.” Parchment was an older form of fine paper, often used for formal documents. The Founders clearly understood that the document they wrote and ratified would prove as good as the people running it.

I didn’t draw conclusions for the girls, but I want to spell out some implications for you:

• When the president thinks he is an elected king and should control all the levers of government without being questioned or restrained and when a majority of Senators believe they should protect him, they’re simply making the Constitution irrelevant. The Constitution doesn’t protect the president or the senators; they do it for themselves.
• When the president is more intent on encouraging us to fight among ourselves over the color of our states and our skins than to work together for the good of the country, the Constitution hasn’t failed us. We’ve failed it.
• When the president turns us from leader of the free world to its laughing stock, the Constitution hasn’t failed us. He has.
• When the president encourages the most selfish among us to sacrifice the air, land, water and climate that sustain us, the Constitution hasn’t failed us. He has.
• When the president dithers for months after being warned of a coming health catastrophe, the Constitution hasn’t failed us. He has.
• In the days before we had antibiotics and other drugs, quarantines were the principle way that our governments tried to protect us from infectious diseases. When people carry weapons into the state Capital and threaten state governors over quarantines,[2] the Constitution hasn’t failed us. They have.

The Constitution is a parchment barrier. We have to do more than protect the document. We have to use it wisely.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on July 14, 2020.

[1] Judicial Discretion 62 (Y. Kaufmann transl. 1989).@ BedRoc Ltd., LLC v. United States, 541 U.S. 176, 192 (2004) (Stevens, J., dissenting).

[2] See https://www.businessinsider.com/michigan-open-carry-laws-legal-protesters-guns-at-state-capitol-2020-5 and https://www.newsweek.com/michigan-closes-down-capitol-face-death-threats-armed-protesters-against-gov-whitmer-1504241.

Testing Republican Loyalty on the Route to Dictatorship

My heart wants to talk about the momentous things happening in our country but the disloyalty of this president is too frightening to talk about anything else.

He keeps firing people who’re trying to follow the law. He’s stripping government of the people who protected us from disease, poison and catastrophe, from dangerous workplaces and frauds, leaving most of us with little ability to protect ourselves. We’re out of work, out of money and have lost control of many boards of elections. When does it become too much?

He’s allied himself with the most extreme racists, people who’ve little compunction at brandishing, intimidating, threatening the rest of us with their weapons. Who’s safe then?

FBI records have made it clear that the – I refuse to use the name they call themselves – but the alt-sickos he praises and incites are the same ones who have been responsible for the vast majority of domestic terrorism in this country. Some of you may be too young to remember Timothy McVeigh who carried out the Oklahoma City bombing that killed and injured nearly a thousand people including 19 children in a day care center. He came from the same sewer of hate. The alt-screwed up wing that Trump insists on encouraging has been the source of the mass shooters that have caused so much grief. They’ve united law-breakers with political enmity. The combination is deadly. Do we need more proof?

Encouraging violence, creating chaos and then posing as the savior is a path tyrants have followed all over the world to take power, and, gaining power, turned their followers loose on the population until everyone bows in feigned allegiance to avoid their own and their family’s arrest, rape and murder.

The other major path is to gain control of the military. Trump has been firing everyone inquiring into his misbehavior. He’s fired much of the top brass of the military for daring to say that the military must stay out of politics or otherwise stand up to him.

How far is Dangerous Donald trying to go? And what will happen to us if he gets what he wants?

If this president attempts to take over by force, who will stand in his way? Will the Senate be loyal to Trump or to America and the rule of law and democracy? Will the Army be loyal to Trump or to America, the rule of law and democracy now that he has been stripping responsible military leaders of their stripes? Will there be anyone left to say no and lead the troops against a presidential putsch? Is it too late for the Court now that they have authorized massive stripping of voters from the records? Will we stop this slide into tyranny before it’s too late?

To allow this President to take over the reins of power he believes are his, will erase all efforts to make this a more decent country. This is a real test of the loyalty of Republican Senators – to Mr. Trump, or to the Constitution that so many Republicans have so loudly proclaimed as if they alone obey it. Are they loyal to the law and its superiority over everyone, high and low, or are they devoted instead to the notion of impunity, that some people can do any damage they choose to other people, to our government and to America itself without facing justice. Frankly, I am guessing that we are going to see immense disloyalty to America and failure to insist that the president has an obligation to our country and not just to his own ambitions. If you could read the records of the Founders of our country, you would quickly discover that Trump is the man they were afraid of.

There is no second chance. Republicans must show their courage now or survive only in infamy.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on June 23, 2020.

Trump Misuse of the Pandemic

I wanted to talk about something else; the health crisis is so serious and depressing. But it’s so serious because Trump has been unwilling to be part of the solution. He tries to double down, deny the science, ignore the tragedy and let everyone who’s not a Trump supporter sink into bankruptcy or perish, while Trump and his buddies play golf, and the people he put in charge of federal agencies use the pandemic as a smokescreen behind which to destroy all the agencies and the states and the services they provide – from schools to fire, police, safety regulation and health services.

What kind of people we are is reflected in how we handle a crisis. Do we let those most in need perish while funneling everything to those least in need? Or do we protect those who need it most?

Do we protect public schools for everyone or do we make them a pay-as-you-go enterprise that only the wealthy can afford?

I’m sick of watching the Trump Administration use this crisis to double down on paying the rich and starving the public, supporting private schools and starving public ones, paying large corporations and starving mom and pop businesses.

This has been the Republican playbook – first empty public coffers with tax breaks for their friends so it looks like the federal government has to starve all the programs that serve the people – from Social Security to public health and public education.

The Trump Administration was asleep at the wheel and let the virus explode until they could claim the only way to save American workers from economic disaster is by opening up, further fanning the virus and watching workers die from the epidemic, without Trump’s loudly proclaimed but non-existent health care.

Every Senator who voted to acquit the Thief-in-Chief should be thrown out of office as traitors to America. And yes, the House should do it again, tie up this corrupt Administration on charges of:

• Lying to the American people about the seriousness of the virus
• Incompetence in stopping the pandemic while it was still manageable
• Incompetence in leaving the states to deal with it while parading around like Vladimir Putin showing off his golf game even as people died on ventilators
• Stealing from the people and letting schools, states and cities go bankrupt while profiting his rich friends

Yes, lying, stealing and incompetence are impeachable offenses, were intended to be impeachable offenses and Trump is clearly guilty.

It’s time to expose Trump and his buddies as crooks stealing the people’s money for themselves and their friends.

It’s time for Democrats to play the Tea Party’s game – no holds barred refusal to compromise until this guy is outta there. Two can play the Tea Party game and we need to do it for the people.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on May 26, 2020.

For those who can’t work from home

As the saying goes, even a broken clock is right twice a day. The fact that Trump has handled the virus badly, stupidly, doesn’t mean that everything out of his mouth is wrong even if he says it for all the wrong reasons and without any understanding of the impact.

It should be clear that the effects of shutting down the economy are very different depending on our jobs and income. The less one’s income, the more likely that one will be out of work. The higher one’s income the more likely that one can work from home. That’s not a perfect correlation. Doctors, for example, are relatively well-paid but for much of what they do, they have to come in and see patients. And some craftsmen can build or stitch things at home, whatever their incomes. But the virus and the shutdown are having class specific consequences.

Clearly efforts are being made by many to relieve the economic impact and make sure that people have food and shelter. That too isn’t perfect. The checks coming from Washington pay little attention to who needs what, to what people’s obligations, illness or other circumstances are costing them. And with Trump’s repeated efforts to defund Obamacare, people are being blocked from the insurance they need at precisely the point in their lives when they need it most, and when the medical providers need the resources to care for people. Obama still cares. Trump medical insurance doesn’t exist and never will.

And despite the myth of the welfare queen, I represented many of the poorest in my legal career and I never met a poor person who didn’t want a job. The lack of a job affected many of them emotionally. Their self-respect was tied to doing their jobs well. And you can dispense with racial stereotypes. I spent several years running an office in a Black neighborhood and several more as Assistant General Counsel of the entire New York City legal services program. I have, as another saying goes, dealt with Black and white up close and personal.

I think we need to build some hope and self-respect into what we are trying to do for people. I’d expand the opportunities of the GI Bill that put many through educational programs that gave them the chance to improve themselves when circumstances allow.

That doesn’t mean it’s easy. I think the Trump government has been wasting money on huge corporate friends that could do very well without Trump aid, and it’s wasting money on big companies, without strings attached. There’s no reason to send money to Trump’s big corporate pals without requiring that it be used to protect people’s jobs.

But government can’t do everything. Who, after all, is available to do all the things we need. It’s not just or even primarily a problem of money – the federal government has ways of expanding the money supply – it’s a problem of who’s trained to do work. We can’t have an infinite number of doctors, social workers, and on and on. There are limits. But if we Americans are good at anything, we’re supposed to be good at problem solving. And this problem needs to be addressed. Hope requires more than money – it requires a chance to crawl out of the corporate dungeons into the sunlight of jobs that pay well and can be done with decent working conditions.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on May 19, 2020.