World-Wide Radiance of the American Melting Pot

February 24, 2015

In this world the grossest of inhumanity is euphemistically described as ethnic cleansing. The mutli-directional genocide of the old Yugoslavia has become routine. Boko Haram takes aim at education and at religious difference in Africa, targeting connections with America and the west. The Islamic State and al-Qaeda in the Middle East, with tentacles into much of the Muslim world, target whoever doesn’t belong and subscribe to their version of Islam or dare question their authority, They have targeted America, England, Spain, France Norway and counting. It is terrifying how quickly decent peace-loving communities have been dismembered and destroyed.

The past is prologue, but can’t be undone. The question is what do we do now. This is partly an ideological struggle because terrorists depend on recruits. How can we handle such a high-stakes ideological struggle? One aspect of that is at home.

Urging the U.S. Supreme Court to end segregation in Brown v. Board of Education in 1954 both the Democratic Truman Administration and the Republican Eisenhower Administration explained to the Court that our respect for people of all races, faiths and national origins were central to American worldwide success, especially in the fight against Communism.

Our melting pot and mutual concern and respect define the best of America. Our unwillingness to give in to bigots and bigotry, racists and racism, our willingness to see, confront and deal with bigotry and racism, our determination to stop it, make our strongest appeal. It is our tolerance, our neighborliness, our welcome to all from everywhere that makes us the shining city on a hill that our Founders hoped we would be. It is not our bloodlines but our coming together to make ourselves and welcome each other as Americans that makes us so. That e pluribus unum is what the world admires. They want our neighborliness; they crave the American idealism that gives anyone and everyone a chance to make a decent living and a decent life. They crave the welcome that glows from our melting pot.

People dream of America in corners of the world where they are crushed as if they are worthless except for the masters’ business, worthless unless they are of the masters’ bloodlines, worthless unless they have something to offer, at least a bribe. We need to keep the dream of the American melting pot alive both for their sakes and for ours.

Our American melting pot is more important than ever to the world we inhabit. But make no mistake it is crucial here at home. If the hatreds that once fanned the Old World and now fan the so-called Third World land on our shores, none of us are safe. We were all melted in that pot and we all live or die together. There is no safety in a cauldron. We have to sustain the values of our shared tolerant American culture.  For all our sakes. We are all beneficiaries.

I pointed out last week that the American melting pot, one of our most fundamental of institutions, was the result of very deliberate decisions to educate us all together, without regard to wealth, faith, gender, national origin or spoken language, and then, finally, without regard to race. And yet, the Court that once announced Brown v. Board of Education is not helping to preserve that centuries-old melting pot. Instead it is making it easier, in some respects even forcing us to re-segregate ourselves by race, religion and wealth.[1] By doing that, the Court is plunging a dagger into the heart of America.

— This commentary was broadcast on WAMC Northeast Report, February 24, 2015.

[1] See, e.g., Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007); Zelman v. Simmons-Harris, 536 U.S. 639 (2002); and see Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press 2010); Erica Frankenberg, Chungmei Lee and Gary Orfield, “A Multiracial Society with Segregated Schools: Are We Losing the Dream?”  The Civil Rights Project Harvard Univ. (Jan. 2003) available at http://www.civilrightsproject.harvard.edu/research/reseg03/AreWeLosingtheDream.pdf (June 22, 2007).


Dr. King’s Message of Love

January 20, 2015

Yesterday we celebrated Martin Luther King Day. We are still much too far from a post-racial society. For the big victories of the Civil Rights Movement, we think of Brown v. Board, and the Civil Rights Act of 1964, which the Rehnquist Court did its best to chip away, and the Voting Rights Act of 1965 which the Roberts Court is doing its best to tear up. There was another victory that I’d like to talk about, just a few years after Martin Luther King shared his dream at the Lincoln Memorial.

It often seems like a postscript to Dr. King’s legacy but was actually at its very core. When the NAACP planned its attack on school segregation, they started with graduate schools, racking up a string of victories so that any other decision in Brown would have flatly violated the teaching of a whole group of recent precedents abandoning separation in law school, medical school, graduate school in one state after another. But until Brown they didn’t touch grade school. They had concluded that grade school would be the most inflammatory and most difficult because of southern fear of what they called miscegenation, marriage between whites and Blacks. There was a sense in which worrying about marriage of kids in elementary school rather than adults in graduate school seemed backwards. But they understood the fear and went with it.

Fear of intermarriage was a very big deal with reason. Sociologists have been finding that one of the main ways Americans have been putting stereotypes and prejudices behind them has been intermarriage, not just Blacks and whites, but Jews and Christians, whites and Asians, different white ethnic groups, and now the marriage of gay or lesbian children of straight families, all of us to some degree have been marrying out of our ancestral groups, introducing our families and producing children who celebrate all sides of their heritage. Marriage and intermarriage matter.

Rabbis don’t like Jews to intermarry – they’re afraid to lose another Jew to the assimilated culture. When Jeanette and I married, it was hard to find a rabbi who’d marry us. There are a lot of mixed families in our Temple, creating the loving, open community we love.

In the 1950s Mildred Delores Jeter grew up down the road from Richard Loving in rural Virginia. Richard was a white bricklayer; Mildred a young Black girl. In that part of the state, Blacks and whites often socialized, but didn’t marry. Mildred and Richard weren’t thinking of Dr. King or making a racial statement. They just fell in love, married and wanted to raise a family together. For that they were arrested, jailed, convicted and kicked out of Virginia. They were together until, tragically, Richard was killed in a traffic accident nearly twenty years later.

The year Martin Luther King shared his great dream with us, Mildred wrote to U.S. Attorney General Robert Kennedy about their inability to visit family and friends in Virginia. Kennedy sent them to the ACLU whose lawyers brought their case to the U.S. Supreme Court. In 1967 the Warren Court gave us the historic decision of Loving v. Virginia, one of its great decisions, establishing the right to marry, and marry without discrimination.

That part of the Civil Rights Movement seems resilient and lasting – we keep meeting, befriending and learning to love each other. The world changes, though slowly. It has always seemed appropriate to me that they were Mildred and Richard Loving. Dr. King’s was a message of love; love needs to run this world.

— This commentary was broadcast on WAMC Northeast Report, January 20, 2014.


Yipes – taxes for the New Year??? !!!

December 30, 2014

Some years ago I called Phil Shrag whom I knew from law school. He’d run the National Organization for the Rights of the Indigent for the NAACP and worked for the New York City Commissioner of Consumer Affairs. Phil was and is a very public spirited person. At the time he was teaching at Columbia. I don’t remember what I called him about but at some point in the conversation we made small talk. I asked him what he was teaching. Tax. That was a surprising answer since none of the things Phil had done suggested significant involvement with the tax code. But he pointed out that every public policy runs through the tax code. So it made a lot of sense.

Phil of course was right. Global warming? The tax code determines how cheap it is to buy carbon based fuels that warm the globe. And it determines whether the producers or somebody else has to pay for the cleanups, the environmental damage, dealing with the warming planet. And it determines what the carbon hawkers have to pay for threatening to obliterate our descendants and end human life on this planet. No tax – go ahead and choke the globe.

Antibiotic resistant disease? The tax code determines what cheap methods are OK to raise and sell animals and animal products. Jam animals together for “efficient” processing and they need antibiotics. The tax is on the land, not the antibiotics. Voila, it’s cheap to feed antibiotics to animals and ship them to us with resistant diseases. Of course we’ll pay the price with illness, doctors, and grieving for our dear ones – but, hey, the milk was cheap.

Landfills? Who pays for those? Do you get a break for composting, sorting, recycling or not buying so much? Nope – we all pay for garbage. But the tax could be shifted to producers and off our shoulders. Things would instantly get less wasteful.

Ever since the elder George said “Read my lips; no new taxes,” taxes have become the third rail of politics – instant suicide for any politician even to bring it up. But health, wealth and survival are right there in the tax code. We need smart taxes, that shape us the way we ought to be. The freedom to corrupt our country and our world with garbage, poison and heat isn’t legitimate freedom – that’s one person’s “freedom” to mess with another’s life, or the lives of many. That’s not freedom, not what our forefathers’ fought for, not patriotic, sensible or constructive. We need smart taxes. Now. Taxes that will make our world a better place.

So last week I wished for peace, health and good government – figuring I was on mostly safe ground. So now I’m blowing it – wishing for new, I’d rather say better, taxes. TAXES for the New Year! That Gottlieb character must be crazy.  Like a fox? Naahhh. Just nuts.  Republicans won’t allow it anyway.

Oh, devilishly inspired by Paul and Anne Ehrlich, how about a tax on more than two children per family – NO, don’t throw tomatoes, they stain. I’m out o’ here! Happy New Year everyone.

— This commentary was broadcast on WAMC Northeast Report, December 30, 2014.


Killing Garner

December 9, 2014

Are we safer with or without the police around? When juries, grand juries and prosecutors regularly decide that plain, on camera, evidence doesn’t show murder, what protects people?

It’s too dangerous to put your key in your front door like Amadou Diallo a few years ago. It took 41 bullets to meet that threat and shoot him in the back. It’s too dangerous to hold your hands up like Michael Brown in Ferguson – hands up can be interpreted as threatening. It’s too darn dangerous to complain “I can’t breathe” like Eric Garner – we know from sexual politics that people understand “I can’t” to mean “I can!” On camera they could see just how dangerous a man can be when he can’t breathe. And any Black kid with a toy gun is toast.

The police talk about bad officers. Most are not looking for a chance to show just how tough they can be toward inoffensive or defenseless people. But don’t let the so-called good cops off easily when there are no repercussions, when the “good cops” stand with the “bad cops” because it’s a dangerous job, so that there are no enforceable rules of behavior toward civilians and anything the police do goes but nothing civilians do – especially if they’re African-American. The culture of silence gives us no reason for confidence. No firings, no powers for civilian review boards, plus judges and prosecutors who stand by the cops regardless, like the judge who told me he believed my client but found him guilty because “I couldn’t do that to the police.” Are those who stand-up-for-the-cops-no-matter-what any better than the Romans who liked to watch Christians thrown to lions?

Black families have “the conversation” with their kids about how to deal with the police. Actually I’m also better off when I don’t argue with the police, don’t claim to know my rights. Most of my clients were Black. I gave them the same advice plus keep quiet and politely ask for an attorney.

Apologists for the police have used the conversation to say it was Eric Garner’s and Michael Brown’s fault that they were killed. They should have done what they were told. Then they wouldn’t be dead. But so what? I teach my law students that they should not expect their clients to know what to do and what they need to tell their lawyers. The lawyers are the professionals. The lawyers are trained. The lawyers must expect themselves to shape the encounter usefully and help the clients do what needs to be done.

It is a lot too simple and too self-satisfying to blame the victim. The Americans ISIS beheaded shouldn’t have been there if they knew what was good for them but that gave ISIS no excuse to behead them. Some women might not have been raped if they made themselves look ugly but that’s no excuse to rape them. I took part in a rape case where a young man was charged with raping an older, shriveled charwoman – not looking pretty doesn’t necessarily protect women. But no matter, none of them, pretty or ugly, young or old, should have been raped. It doesn’t help to blame the victim. Blaming Brown and Garner and Diallo and the 12 year old kid doesn’t make a lot of sense to me – none of them did anything that justified execution. Do we have to take the guns out of their hands to convince the police to use their heads?

—  This commentary was broadcast on WAMC Northeast Report, December 9, 2014.

References

On Eric Garnder’s death, http://www.nytimes.com/2014/12/04/nyregion/officer-told-grand-jury-he-meant-no-harm-to-eric-garner.html?action=click&contentCollection=U.S.&region=Footer&module=MoreInSection&pgtype=article


Libertarians on and off the Court

December 2, 2014

Most Supreme Court justices are libertarians in some sense. But what kind and for whom varies widely.

We all believe we have rights to decide lots of things for ourselves. But what are the limits? The more “conservative” the justices and others are, the closer to the Tea Party, the only limits they recognize are force and fraud. Various conservative philosophers have been very plain about that. Regulations, almost all regulations, interfere with that freedom of action.

People sign contracts every day that have draconian consequences for them, but, say the far right, you agreed to that. You signed a contract for which the only remedy is a stacked deck, arbitration in front of an arbitrator arranged by the company, and you have no right to unite with other people in the same situation to fight expensive battles together and share the costs – that’s called a class action, and the Court’s conservatives forbid it in arbitration, won’t allow the states to try to protect consumers from such restrictions on their rights. That protects the company’s liberty. And of course you had the liberty not to sign – if you read and understood the contract and had a realistic choice.

You signed a mortgage with a lender and it had all sorts of hidden costs, fees, rates and traps that put a lot of people underwater and helped to build and then break the housing bubble, and with it the economy. But, tough, you signed, say the conservatives.

Most states used to forbid usury, interest rates that no one could reasonably pay but that piled up so quickly bankruptcy was inevitable. Not any more – the Supreme Court made sure states could no longer forbid usury.

And where the conservatives on the Supreme Court couldn’t block federal law, like the antitrust laws which were intended to give us the benefit of competition and protect us from monopoly, they made it impossible to prove.

There are an endless set of examples. The company gets the liberty and you get the shaft.

But when you get the shaft, that doesn’t just affect the liberty that judges and legislatures say you have. Getting the shaft affects your real liberty – liberty to make wholesome life choices for yourselves and your families. Most of us think our liberty is limited by the effect on other people’s liberty. Giving people the shaft deprives people, ourselves and lots of others, of our very real liberty.

Most states tried to limit legal liberty to do things that harm others. There should be no liberty to foul the water we drink or the air we breathe. There should be no liberty to bury costs in fine print legalese, or propose terms that the company knows will do damage. There should be no liberty to put people into unsafe working conditions when the company could have saved their lives, saved people from collapses and explosions in coal mines, oil rigs, and similar disasters. It doesn’t matter that the workers agreed, signed a contract, took the job – the company knew and we should be able to stop it.

We too believe in liberty, but it is liberty bounded by what’s good for everyone. We have a choice between freedom for those who have the money and power to exercise it, or freedom for everyone based on some realism about what’s going to happen.

Do we care? The protectors of corporate legal liberties on the Court have a child’s idea of liberty – without responsibility. Children throwing tantrums at civilization have no place on the Court.

— This commentary was broadcast on WAMC Northeast Report, December 2, 2014.


Schwerner, Chaney, Goodman and the Voting Rights Act

November 25, 2014

Yesterday, President Obama posthumously awarded the Presidential Medal of Freedom to James Chaney, Andrew Goodman and Michael Schwerner, a Black Mississippian and two white New Yorkers, murdered fifty years ago, working to register Blacks to vote in Mississippi. They were among many who lost their lives in that struggle.

Schwerner’s widow, Rita Schwerner Bender, said the best way to honor her husband “and all the others killed or injured in the struggle for voting rights and the dismantling of Jim Crow would be the reinstatement of the Voting Rights Act and its aggressive enforcement.”[1]

At the last hearings on renewal of the Voting Rights Act, witnesses made clear that efforts to rig the process against African-Americans continue unabated, moving polling places, changing district lines, reorganizing forms of government so that Blacks could still be excluded. Because the Voting Rights Act gave the United States Attorney General power to reject changes, those efforts had not succeeded.

In Shelby County v. Holder,[2] Justice Roberts used the Act’s success against it, saying it is no longer needed because the statistics are better. Pamela Karlan, a highly-respected Stanford Law professor, told Congress:

“ if you have a really bad infection and … the doctor … give[s] you a bunch of pills, and … tell[s] you, ‘Do not stop taking these pills the minute you feel better. Go through the entire course of treatment because, otherwise, the disease will come back in a more resistant form.’ … [T]he Voting Rights Act is strong medicine, but it needs to finish its course of treatment, and that has not yet happened … [as] you have heard from other witnesses. ”[3]

Those other witnesses made clear that the efforts to undo electoral integration continues almost unabated and would come roaring back if allowed. The Court stripped the pre-clearance provisions from the Voting Rights Act and the disease came roaring back just as Prof. Karlan predicted.

Should we care about African-American voters? Absolutely. Morally, they’re people like us. Democracy has no right over peoples denied the vote.

And for our own self-interest. Martin Niemöller said of the Nazis:

First they came for the Socialists, and I did not speak out—

Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—

Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—

Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

 

As Bruce Bueno de Mesquita and his colleagues explain, the power of dictators is built on shrinking the number of people to whom he or she owes her power, and then rewarding those folk big-time.

You have no stake in southern white racist politics. If you’re Democrats, you have no stake in Republicans winning by excluding African-Americans. In Congress and state legislatures, people of good will are allies. We cannot win on the nonracial issues important to us if we allow our African-American fellow citizens to be excluded from the vote.

Those who wrote and ratified the Fourteenth and Fifteenth Amendments understood that having won the Civil War they could lose the peace if African-Americans could be prevented from voting in the former Confederate states.  We all have a stake in a society where all are represented because that is our chance for a just society in which government is not just of, by and for people who think they’re better than the rest of us.

— This commentary was broadcast on WAMC Northeast Report, November 25, 2014.

 

[1] Jerry Mitchell, Presidential medal to honor 3 slain civil rights workers, JOURNEY TO JUSTICE, The Clarion-Ledger, November 18, 2014, available at http://www.clarionledger.com/story/journeytojustice/2014/11/10/presidential-medal-of-freeom-given-three-slain-civil-rights-workers/18826791/, or http://on.thec-l.com/1ugJ0pp, visited Nov. 24, 2014.

[2] 133 S. Ct. 2612 (2013)

[3] Statement Of Pamela S. Karlan, in The Continuing Need For Section 5 Pre-Clearance, Hearing Before The Committee On The  Judiciary, United States Senate, One Hundred Ninth Congress, Second Session, May 16, 2006, Serial No. J–109–77, S. Hrg. 109–569, at 5.


War on What – Crime or the Poor?

October 14, 2014

Many of us have realized that sending troops into some areas can be counter-productive. No matter how many the Israelis kill, more Palestinians prepare to fight them. Our boots on the ground in Iraq and Afghanistan led many to take up arms against us. To them, we were the invaders.

Let me pose an analogy and see if it fits. We don’t have survey data from everywhere but what we have is telling. The Rutherford Institute, which has billed itself as “A non-profit conservative legal organization dedicated to the defense of civil, especially religious, liberties and human rights,” told the U.S. Supreme Court recently, that “the most common justification cited by New York City police for stopping individuals was presence in a ‘high crime area’” and “an additional 32% of stops were based on the time of day, and 23% of police stops were for an unspecified reason.”[i] Read the rest of this entry »


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