Our Human Constitution

July 13, 2020

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

July 3, 2020

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

June 22, 2020

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

May 26, 2020

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

May 19, 2020

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.


The System Subverts Our Values

May 4, 2020

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

April 27, 2020

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.


Trump’s Malfeasance Goes Viral

April 20, 2020

I read the Times’ description of the Administration’s snafus through my tears because every snafu meant a large number of unnecessary deaths.

Warnings reached America in early January from Trump’s appointees, but he didn’t trust them. Warnings came from people who dedicated their lives to protecting the rest of us, who’d become experts and never gave a fig for what they could earn in private industry, because they were dedicated to protecting us, dedicated to the God’s honest truth, not to anyone’s political fortunes. So Trump labeled them the “deep state” and ignored them too.

Public health works by moving fast to contain and avoid disasters. It took a month for him to stop some travel from China. Then he took a victory lap while the virus spread. People kept trying to alert him, but he waited because it wouldn’t make his economic messaging look good. How many people had to lay down their lives for his political messaging?

National security, medical and public health experts, people in contact with doctors in China and elsewhere, watched the virus explode and kept urging action. But still he dallied, telling everyone this would blow over. God must have decided America needed some humility, so he sent us an idiot for a president.

Delay made everything harder and costlier. Sheltering in place got harder and longer because of how far the virus had been allowed to spread. Many have already died. Many couldn’t shelter in place – doctors, nurses and everyone who makes hospitals function; and others who do critically important jobs, as aides in nursing homes, people stocking grocery shelves, making deliveries or picking up garbage – all take risks daily. The poor are not in position to survive lengthy periods of unemployment. And they’ll be the first to die when his majesty decides we should go back to our places of work and play. He’s eliminated any good choices for the great mass of Americans. Working or staying home, many will die or lose their jobs and starve. Time and delay matter. Late steps don’t erase earlier failures – they leave us chasing an ever bigger problem.

The people most at risk are the very people he doesn’t want to help. Billions for corporate welfare but pennies for the poor. He’s turning on the mass of Americans, including many who thought he’d change things in their favor. Apparently, we’re all socialists now – Trump and Republicans are socialists for the rich, doing everything government can do for them, while Biden, Sanders, Warren and the Democrats are trying to provide for the rest of us, for those who need the help.

After 9/11, I explained to a Republican congressman that his rural constituents also suffered from the attack because friends and family had found jobs in the big city. The congressman’s response to me was “I didn’t think of that.” Pandemics are different. They spread; they don’t stop at state or community lines.

The Constitution doesn’t stop us from electing fools and misanthropes. It will always be up to us. I could say “God help us,” but God, for whatever reason, leaves it to us to help ourselves. This has been hard to write. It may have been hard to hear. But the best thing Trump could do for America is to resign.

— This commentary was scheduled for broadcast by WAMC Northeast Report, on April 21, 2020.


What Lessons Will We Learn?

April 13, 2020

I’d like to look beyond this epidemic, beyond the people telecomputing and those taking bicycles to work instead of busses, beyond our fears of going to meetings to see and greet each other and work together, beyond elbow bumps at funerals as I had to recently, and think ahead to a better future.

What will we learn from this epidemic? We’ve faced horrible situations before and managed to improve ourselves based on those experiences. We don’t seem to have retained much of the lessons of 1918 but we’ve bettered ourselves in the face of other disasters.

In the Great Depression of 1929 through the 30s, many of us learned that being out of work is out of control for many of us. As the economy contracts there are fewer jobs, and people are forced to join lines to soup kitchens. We learned a degree of solidarity and learned to put compassion above blame. We learned supporting each other we could make a better world for all of us.

Others saw the mistreatment of workers. The so-called settlement houses of the early 20th century were largely efforts to improve the lives of immigrant workers. I took a college course from Franklin Roosevelt’s Secretary of Labor, Frances Perkins, who witnessed the Triangle Shirtwaist fire, which killed 146 workers, and then dedicated herself in a succession of positions to make work safer. President Franklin Roosevelt brought her to Washington where she became the soul of the New Deal.

Out of those experiences came Social Security, Unemployment Insurance, and labor laws that substituted collective bargaining for lockouts and strikes.

Then just as we began to recover from the Great Depression, we were tossed into the unimaginable horror of World War II – a struggle which took 60 million lives around the globe. Then too we responded with love and compassion to our veterans coming home, without regard to their where they came from or how they prayed. United, we had the political will to pass the GI Bill that put many veterans through schools they could not have afforded before. The progress we saw as a result was not an accident – we soon had the world’s best trained workforce and it showed in the accomplishments of our people. We had invested in the people of America, invested in each other, and together we reaped the harvest of good jobs, good incomes, real education and better health and housing.

Internationally we need to learn that everyone’s welfare matters: China and Iran affect our health here, freedom and democracy are indivisible. Eleanor Roosevelt chaired the effort to draft the UN Declaration of Human Rights. We’ve had nothing to fear from countries that adopted freedom and democracy.

I spent a decade providing legal services to the poor and met a lot of wonderful people in the process. Recently I’ve been working with a different organization that helps the needy and, again, I’ve been impressed by people working as hard as they could to support themselves, their families and their communities. Climbing out of poverty is hard as people don’t have the resources to deal with problems that are almost inevitable – unexpected bills, illness, economic changes.

What lesson will we learn now? Will we learn the lesson that everyone’s health matters, that our ability to work and play depends on everyone else’s health too? Will we remind ourselves that unemployment and poor working conditions are problems we share, not just someone else’s problems?

— This commentary was broadcast on WAMC Northeast Report, April 14, 2020.


Price gouging on the coronavirus

April 12, 2020

Trump’s major contribution to the pandemic is helping private companies price gouge for ventilators so states would have to strip their budgets to pay for them. Thank you, Mr. Trump. How very patriotic. But then is he really an American?


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