Hohfeld’s Covid

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This was scheduled to air on one of the holiest days of the Jewish year. I think this commentary, which was recorded a few days earlier, is appropriate because law and religion both get at very significant moral issues – in this case, how we handle Covid.

So, are you game for a little legal philosophy? Law students are generally taught traditional legal concepts but more rarely the underlying fundamental logic of the law. Now you’ll be able to lord it over all the lawyers you know.

Wesley Hohfeld was just 39 when he died in 1918. A member of the faculty at Yale Law School, he had published two remarkable articles that continue to enlighten study of the law. Hohfeld gave meaning to the phrase that law is a seamless web because there is always a rule that defines what is and isn’t OK; there is never an absence of government.

Hohfeld began by asking what it means to say I’m entitled to something? What does it mean to say I have a right, or a privilege, or freedom? We bandy those terms about as if they’re the same, with simple, obvious meanings. But Hohfeld explained that someone’s right means someone else’s duty. My right to clean air means someone else’s duty not to foul it for me. They may claim another right, like the right to ditch masks, but then we’re claiming conflicting rights.

Someone may claim the privilege of going unvaccinated without a mask. But then the owner, manager, tenant or employer has no right to kick them out. Again we’re dealing with conflicting claims of rights. We can’t have legally conflicting freedoms.

Rights talk makes us think government is the heavy when it tells us what we can’t do. But Hohfeld revealed that law and government always tell us what we can or can’t do. To say nothing commands someone because the legal implication is that one of us can do what we want and the courts will penalize those who interfere. To say I have a right means government and the courts will protect me from your interference, not the other way around.

But then how should government choose whose rights to protect? Flip a coin? Take bribes or campaign donations? Play favorites, duck bullets or consider the general welfare?

Sometimes there are reasonable ways we can protect ourselves from the consequences of others’ exercise of their rights and privileges. Then maybe it’s worth it to make us do those work-arounds.

It sounds reasonable for me to protect myself and my family by keeping our masks on. But it’s about percentages – how effective are vaccines, masks and other precautions? Everyone’s precautions affect everyone else’s chance of getting sick. If encountering too much of the Delta variant in public means unwittingly bringing it home, do we all have to wear masks both in public and at home in order to protect our families? Is our home our castle where we have a right to safety and intimacy? Or did that right or privilege just get reduced?

Because government can’t protect us all without limiting privileges others claim, it’s never true that law and government can avoid choosing whose rights are more worth protecting and whose aren’t. What people call limited government is just government that favors the rich and powerful or people who talk tough. But I think I have a right to a government that makes reasonable choices, not one that lets some people do whatever they want, as if anyone’s rights are that broad. It’s not about getting government out of our lives – law is a seamless web. I’m fed up with sloppy claims about rights to commit wrongs – whether about masks, vaccines or guns.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on September 7, 2021.

To Heal the Pandemic Economy

I’d like to give thanks for those whose lives we can save and whose futures we can restore. To do that, there’s no choice between defeating the virus and rebuilding the economy; we’ve got to do both.

People protect themselves from Covid by staying home, not shopping or dining out. Those who’ve seen the virus up close and personal won’t be coaxed back easily. Those cautions crushed the economy. Companies went bankrupt, shut their doors, closed their books, eliminated brick and mortar stores. With those changes, there could be no snap back. There’s permanent damage.

The economic depression is deadly too. People without jobs are stressed. Tempers flare as they lose jobs, businesses, homes, cars, self-respect, even their families. Stress, violence and suicide kill.

Because they’re connected, we’ve got to deal with the virus and the economy, whenever we expect an effective vaccine to be available – the virus is killing and disabling far too many much too fast. To open the economy, people must cooperate with virus driven restrictions – a nuisance but a lifesaver. The map and data on the Johns Hopkins Coronavirus Resource Center are eye-opening. There are a million new cases every week, all over the country. If people wait ‘til it hits their family, friends, town, or a vaccine’s available, it will be far too late for those infected and the economic disaster that follows.

If we cooperate to deal with the virus, there’ll be plenty we can do to restart the economy.

Government can provide emergency relief for people displaced by the depression.

Government can provide jobs by building and delivering essential public goods that private businesses can’t on their own

• roads, bridges, clean air, water, flood relief, public health services;
• postal service, electric and internet grids, and transit services that reach all corners of the country;
• the education and training American workers need to better compete and attract investment here at home;
• the basic science that made American farming, pharmaceuticals, the digital economy and industry lead the world.

We once called it a mixed economy where government and business each contributed what they could. That’s not socialism; it’s just smart. Plus projects can be targeted at areas that are hurting – if we work together as the U.S.A.

Government can target tax relief to strengthen the economy – tax relief to the bottom of the ladder where it drives markets, sales and business. Taxing the working classes to give tax relief to the wealthy doesn’t put food on the table and it doesn’t get the economy moving; it’s just a silly, corrupt bargain for campaign contributions.

Government can re-energize the economy by focusing on the welfare of American families, farmers, and workers. That’s the decent, humane way to drive demand and investment in America. To heal America we have to care about each other and develop the economy for us all.

In emergencies, Americans roll up our sleeves and help whoever’s been hurt, wherever they are. Helping each other now is crucial both to save each other from the pandemic and to rebuild the economy. That’s good old American teamwork and it’s essential.

If I were Biden, by the way, given Mitch McConnell’s intransigence, I’d follow president Truman’s example, run against the “do-nothing” Senate, and in these days of continuous campaigns, I’d start now.

 — This commentary was scheduled for broadcast on the WAMC Northeast Report, on November 24, 2020.

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.

MASK MATH

Wearing a mask substantially reduces virus transmission. Without locking in a specific number, let me explain the power of mask math. A mask that reduces your risk 80% at any distance between you, means your risk is only 20% of what it would be in the same situation without the mask. If the other person is also wearing a mask, that also reduces the risk by the same 80% and also leaves only 20% of the risk you’d otherwise have. Here’s the big MASK MATH story – to find your risk, multiply the chance of being infected by each of the masks. That brings the risk down to 4% of what it would have been. That depends on how prevalent the virus is, how far apart you stay, and whether the others are also wearing masks. But my point is that cooperation pays enormous dividends. It’s why New York City was so successful in bringing down a major outbreak. It’s not just what we do for ourselves but the collective effect is VERY powerful. It’s also why the sooner we take protective action, the more effective those protections will be because they act like multipliers, not just additions but multipliers. And that’s why the scofflaws who claim it’s their freedom to refuse to wear masks deserve good spankings. It’s time they grow up.

Stay well, all of you.

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.

Not If We Rest On Our Laurels

Americans like to say we’re no. 1, we’re the greatest, the world’s only superpower. So this is for the America greatsters. Not if we rest on our laurels, we’re not. Our genes came from all over the world. The science that’s been our glory, had many stages of development off our shores. The world doesn’t sit still waiting for the U.S. to create the next big thing. Several Asian countries have nuclear weapons. Several are challenging our digital developments, invading our privacy and platforms in ways that threaten the utility of what gets designed here.

Americans like to say we’re the richest country in the world but seldom want to do more than say it. If one examines the data, some Americans are extremely wealthy, but most of us aren’t and don’t live as well as average people in many industrialized countries. That’s in the data.

We like to say we have the world’s best health care system but it didn’t outperform everyone else in the Covid-19 crisis, and our life expectancy is not so high among westernized countries.

We developed the best education the world had known but we have largely abandoned it, abandoned the grade schools and abandoned the state colleges and universities.

We’re not the greatest if we rest on our laurels. We’re not the greatest if we treat scientific prowess as established, abandon science education from kindergarten through graduate schools and stop investing in scientific research. We’re not the greatest if we ideologically assume that government has been hamstringing our scientific prowess when in fact much American technological prowess was the result of government investment – in nuclear physics, in getting to the moon, in the initial development of the internet – programs which spawned modern broadcast and digital technology and virtually everything we use in modern life. American technological progress didn’t end with Thomas Edison; modern progress developed in tandem with government investment. Most of the important drugs we rely on depended on government investment and it’s crucial for vaccines.

We’re not the best if we assume everyone will still come to American universities while great universities develop abroad. We’re not the best if we insult everyone with our boasting and then expect them to continue coming here to study, live and work. We’re not the greatest if we continue to disparage people from eastern countries while failing to notice that they are closing the gap and even outstripping us in technological development.

We’re not the best if the method people adopt so that we are great again, let alone the best, is by dividing us against each other, blocking half the country from contributing to the extent of their abilities. Our sports teams were not at their best when we had a color line. And no field of activity will continue to rank at the top by excluding people with obvious talent. That’s just deadweight loss, using our energies to fight one another instead of building up our abilities.

No, America cannot be the best, or number 1, or great again if we rest on our laurels.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on May 12, 2020.

 

The System Subverts Our Values

This virus has been bringing out how much we depend on each other, rich and poor, black and white, men and women, immigrant and native. We used to talk about brotherhood and I’ve never found a good substitute for the vision of mutual concern and respect that people in my generation meant by brotherhood. Now two people who shouldn’t be named claim that Blue states don’t deserve help though we do a lot for the rest of the country, through our taxes, the business we generate and by repeatedly jumping to the aid of people all over this country when they suffer from natural disasters. What they’re really saying is that they feel no responsibility for those among us who need help, especially if they don’t have the skin color and ancestry that they honor.

I want to expand on how bad that is. When Mayor Sheehan was campaigning for her first term, I asked her about what the City could do for its poor. She pointed out that the City’s tax base was largely from property taxes. That meant that mayors inevitably had to focus on property values. She didn’t use the term but the implication was that Albany had to gentrify regardless of need and regardless of our values as human beings. Property taxes fund the schools and just about everything else the city does. So mayors have to function like developers.

It goes further. Suburbia contributes to the problems. Separately incorporated suburbs have no legal responsibility for city services. People there still work in the City, benefit from it, hire its workers, use all of the goods and services that are attracted to the area because of the City population. But they don’t share the legal responsibility.

The way this country has organized its laws is that only the federal government has responsibility for everyone in every part of the country and in communities at every level of the income scale and regardless of where its residents came from. When the federal government caters to the selfish instincts of those who are unwilling to help anyone else or who are only willing to help people who look like them and come from the same parts of the world, disaster is the result. You know the song:

Once I built a railroad, I made it run

Made it race against time

Once I built a railroad, now it’s done

Brother, can you spare a dime?

Just about everyone recorded it. But apparently America still has trouble sparing a dime for the people who built it and make it run. We’ve built that into the tax system and still it isn’t good enough for people who don’t want to accept responsibility for fellow Americans. On top of all the advantages they’ve given themselves they still cry about the crumbs that might fall off their tables because they might go to Blue states.

The unnamable man in the White House, the Majority Leader of the Senate and their enablers are doubling down on all the bastions of indecency they’ve already built into American law. But though they don’t understand it – and they don’t understand much – they will be bitten by the snake they’ve let loose because when the virus is free in any of the states, the people they cherish in Red states will end up in the hospital, the morgue and the graveyard. Pandemics don’t stop at political borders. We all suffer when we refuse to take care of each other.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on May 5, 2020.

No Time to be Stingy

There’s no good time to be stingy about public health. It costs more, and kills our own.

The Center for Disease Control budget was stripped for years. Congress treated whatever we couldn’t enjoy tomorrow as a waste and political pariah. That’s also true of our infrastructure, needed improvements to the electrical grid and the internet system. All have the capacity to be deadly when left without repairs and upgrades.

Cuomo’s father had a Commissioner of Health on our son’s paper route. Our sons were in the same scout troop. But what I really liked about David Axelrod was that he made NY healthier. You could smell the difference when you traveled. NY had smoke free rooms, hotels, and buildings before it caught on elsewhere. I also knew the lawyer suing Cuomo over the cigarette rules. His clients apparently thought heaven should forbid anyone or any companies from having to change their behavior for the public good. But David made our lives better.

Stingy politicians who stripped public health agencies of money and authority caused many of our troubles. Public health agencies should have power to take poison out of the air and water — but no, we have to convince legislators first. Public health agencies ought to have power to protect forests that remove carbon from the air — but, no, that’s a big political issue because some people would have to change their behavior for the public good.

A big issue a few years ago was that some state coastal commissions wanted to block building on the dunes in order to minimize flood damage. But the Rehnquist Court said no. Some people might have to change their behavior for the public good.

How expensive is the new corona virus? We’re going into a major national depression because of it. All of us will pay, not by pulling green bills out of our pockets, but because green bills won’t be in our pockets, bank accounts or credit cards to pull out. This is going to be very expensive.

But pandemics will happen again because we live too close to natural habitats. They will happen again because a warming climate will nurse new pathogens. And they will happen again because manufacturers, agribusinesses, oil companies and other extractive industries don’t want to take account of nature, the environment or the implications of their behavior on our health. If what we mean by freedom is the freedom to sicken everyone because we are too busy making short term profits, then we have freedom to die – not with dignity, but freedom to die young, sick and quarantined from everyone we love.

It’s our choice – either we agree to live by healthy business and manufacturing rules or we die by unhealthy ones. And one extra step – all changes have winners and losers. We have to be willing to find or create jobs and educational opportunities like we did with the GI bill for those who are disadvantaged by the changes. Our shelter-in-place rules for dealing with the current virus has winners and losers. We are all in this together and we have to be willing to bring everyone along somehow. That’s not charity; it’s necessary and it’s just plain fair.

And let’s be clear, taking care of public health, taking care of each other, is crucial for all of us, for our economy, for our standing and our leverage in the world. Public health is part of national security. It’s not optional.

— This commentary is scheduled for broadcast by WAMC Northeast Report, on April 28, 2020.