What is Limited Government Anyway?

January 26, 2016

With the presidential primaries underway, the media is choked with talk about getting the government off the people’s backs, restoring limited government, making government let the people alone. But the Koch brothers, the Tea Party, their candidates and supporters are actually saying something very different – they want government to support their definition of their rights and push everyone else out of their way, and most important they want the courts to decide in their favor when others complain that they are trespassing on public land or polluting the air, land and water in ways that injure and interfere with the lives of others. That’s government in their favor.

We lawyers talk about law as a seamless web. That sounds like an idiom but it’s actually very precise. Everything is governed by rules. Judges always decide that someone does or does not have a privilege or a right. Those are all decisions about what the law is. Law always favors someone and disfavors someone else. If someone has a privilege, then everyone else loses when that person does whatever he or she is privileged to do. The question is not, cannot be, whether there is law; the question we have to deal with is whether it is fair and whether it is good for the public. Government off the backs of some means government on everyone else’s back, often leaving you and me poor and defenseless.

Limited government, regulation off people’s backs, are the tropes we hear when a government agency or legislature takes note of bad behavior – fraud, pollution or unconscionable business practices that cause decent people great loss. Unscrupulous companies, some very large and well known, as we discovered during the 2008 financial shock, want no regulations that would set a moral floor under their behavior, allowing more moral enterprises to compete instead of being bankrupted by cut-rate competition from the scandalous moguls. The only regulations that the unscrupulous like are regulations that keeps everyone else out of their way.

So when you hear that trope, look squarely at the privilege these anti-government claimants are defending. You hear it loudest when people are claiming the right to hurt the public. That’s not a claim of freedom that would have made any sense to the Founders of our country.

When the Founders spoke and wrote about government, their central questions were what’s fair and what’s good for the public. Those was central in every aspect of their work from the definition of property rights to the rights the public retained and what the public could and should do for the benefit of the people. Concern for public welfare was central to the building of the Erie Canal that defined the path of commerce in the State of New York for a century and a half, even as the canal was replaced by roads and railroads to continue developing the path the canal had developed. Concern for public welfare was central to the establishment of schools which made Americans among the most educated people on the earth, education that was at the root of all the good things that have happened since.

The Founders believed in public spirit, not a spirit of what the public could do for one’s selfish needs, but a spirit about what each of us could contribute to the improvement of the community, the states and the nation. When President John F. Kennedy told the American people “Ask not what your country can do for you; ask what you can do for your country,” he was channeling the spirit of the Founders.

— This commentary was broadcast on WAMC Northeast Report, January 26, 2016.


Let’s take the Constitution back – from the deniers

January 22, 2016

Republicans repeat over and over that they want to take back the Constitution. That’s nonsense. Actually they are trying to destroy it. It’s important to understand where it comes from. After the Civil War, generations of Southern writers tried to win the peace after losing the War. They succeeded. There is no chance that you were not brought up familiar with elements of it.

In history, that’s called the Dunning thesis.[1] It refers to the claim that, after the Civil War, radical Republicans acted out of spite and revenge rather than out of deeply seated conviction. Historians discredited that thesis a century ago but it kept coming up in the textbooks as if no one bothered reading the historians who discredited it. In fact the Republican leadership who wrote the Fourteenth Amendment were totally committed to the ideal of equality. Thaddeus Stevens, a Republican leader in Congress, told the House he dreamed of the day when “no distinction would be tolerated in this purified republic but what arose from merit and conduct.” The Republican leadership knew and respected African-Americans and former slaves, employed them in responsible positions, welcomed them as friends and in some cases lived with them.

I have to deal with the fallout in law all the time. From the beginning of our country, Southern slaveholders tried to convince Congress and the people that the Constitution had granted Congress little or no power over the states and the country.[2] The courts repeated that formula endlessly, citing the writings of various Founders to prove their point. They are cherry-picking the data. The Convention that wrote the Constitution was dominated by nationalists; the states-righters stayed home. They wrote a powerful document. In the debates over ratification, however, both sides confused the issue. Proponents of the Constitution tried to reassure the public by saying how little the Constitution would do. Opponents tried to scare the public by saying how much it would do.

Regardless of any ambiguities in the original 1787 document, the Civil War Amendments made much of Congress’ power clear, but not to the Roberts Court. President Andrew Johnson sent Gen. Carl Schurz south to report on conditions in the former Confederate states.[3] His Report revealed the ways that former slaves were being re-enslaved by new rules, tracked, beaten or killed for trying to leave, work for themselves, or what we would call walking while Black. Most clearly Congress did give itself the power to deal with those abuses, public and private in the Reconstruction Amendments, the Thirteenth, Fourteenth and Fifteenth Amendments.

You may have heard present day self-styled conservatives who have now taken over the modern Republican Party, trying to take back what the original radical Republicans tried to do, calling African-Americans and others “Fourteenth Amendment citizens.”[4]

Americans of the Civil War generation believed that citizenship gave people a number of rights and they were determined to make sure that the freedmen had those rights. The draft of the first section of the Fourteenth Amendment, as it was brought to the floor, included the right to the privileges and immunities of citizenship, due process and equal protection – each of which overruled the notorious Dred Scott decision just a few years before the Civil War. But on the floor a motion was made to make the point indisputable: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”[5]

Those are elegant words America can be very proud of. We don’t always live up to those ideals. But those ideals justify a great deal of pride. Hold onto them and don’t believe anyone who denies them. They are nothing more than apologists or dupes of the old Confederacy and modern racists.

— This commentary was broadcast on WAMC Northeast Report, January 19. 2016.

[1] See The Dunning School: Historians, Race, and the Meaning of Reconstruction, 36-39 (Univ. Press of Ky., eds. John David Smith, J. Vincent Lowery, 2013), https://books.google.com/books?id=OcJKAQAAQBAJ&pg=PA22&lpg=PA22&dq=the+Dunning+thesis&source=bl&ots=885Fs23eFw&sig=3AN6KTp5IG5gE7DF6AfL5t-5COA&hl=en&sa=X&ved=0ahUKEwiKxdeskLHKAhXHwj4KHb11BEEQ6AEIUTAI#v=onepage&q=the%20Dunning%20thesis&f=false

[2] Prior to the Civil War, counsel argued that the southernmost states would not have joined the union if they had reason to believe that Congress would have had any power over slavery. See Groves v. Slaughter, 40 U.S. 449 at app. lvii-lviii, lxv (1841); Prigg v. Pennsylvania, 41 U.S. 536, 611 (1842); Dred Scott v. Sandford, 60 U.S. 393, 411 (1856) (Taney); and see R. Cover, Justice Accused, 234, 240-41 (1975).  Thus they argued that the commerce clause had to have a narrow meaning. The Court struggled with the meaning of the commerce clause in a group of cases involving regulation of passengers. See Mayor of the City of New York v. Miln, 36 U.S. 102, 136 (1837) and The Passenger Cases, 48 U.S. 283, 474 (1849) (Taney, C. J., dissenting).  To have treated people as subject to commerce clause jurisdiction would have enlarged the possibility of power over slavery.

[3] Carl Schurz, Report on the Condition of the South, 39th Cong., 1st Sess., SENATE, Ex. Doc. No. 2 (December 19, 1865).

[4] Garrett Epps, Trump’s Birther Libel and American History, Atlantic Online, April 12, 2011, accessed on Lexis/Nexis, Jan. 17, 2016, and see online literature of the “Freedom School,” http://freedom-school.com/citizenship/fourteenth-amendment-citizenship.html.

[5] The seminal study of the history of the Fourteenth Amendment is Horace Edgar Flack, The Adoption of the Fourteenth Amendment (Classic Reprint, 2015) (1908). For a brilliant recent discussion, see Richard Aynes, Unintended Consequences of the Fourteenth Amendment and What They Tell Us About its Interpretation, 39 Akron L. Rev. 289, 309-21 (2006).


No Justice for the Vulnerable

December 29, 2015

In this season of charity, I’d like to talk about the fate of the less fortunate to make clear how our politics has been turning a blind eye to the damage it does.

When we aren’t responsible for the costs imposed on others, we will continue to hurt them. Economists call that externalities. Businesses don’t have to pay for the effects on our environment so most businesses continue doing global damage just as much as if they were perfectly benign. Forcing businesses to pay for workers’ injuries, forced them to take account of ways they could save money by protecting their workers – not out of the goodness of their hearts but because the legal system said they had that responsibility. When costs are internalized, they result in better overall decisions.

In the law of eminent domain, cities have to pay for taking people’s property regardless of how wonderful their plans. They have to internalize the costs their plans will do to the owners of real property. When they did urban renewal, the cities didn’t have to pay for the businesses whose customer base was destroyed, and they didn’t have to pay for forcing people into much less safe or appealing housing or projects. So cities avoided taking high priced real estate but they freely wiped out the businesses of the most vulnerable. Those costs were externalized, imposed on other people who had no choice in the matter.

In fact our system makes scores if not hundreds of thousands of innocent victims with no thought of internalizing the damage and paying any form of compensation.

When an individual is wrongly imprisoned for a quarter century and is lucky enough for someone eventually to find a way to convince the courts to let him out, with DNA or other conclusive evidence, that individual has to prove that someone was not only derelict in his or her duty, but did not have one of the many privileges that the law gives people in the criminal justice system, or that the city or state was derelict in its duty of supervision and training, before that individual has any right to compensation. Everyone in government gets to smile and say justice was done while continuing to do the kind of careless investigation and sometimes deliberate withholding of evidence that kept people in prison. They aren’t made to internalize the costs of their misbehavior.

Would police departments be so happy to retain police officers if the department budget took a big hit every time a cop guessed wrong and shot an unarmed civilian? Or would the department institute practices to make that stop?

In fact our law makes the victim or survivors prove specifically what the city should have done in training or by regulation or what the officer should have done under the circumstances. Asking only whether the officer’s behavior was reasonable, the law doesn’t take account of the reasonableness of the victim’s actions. In other words, instead of making the officer and the city responsible for their mistakes, it puts the risk of police error on the individual.

Of course that is typical of American law – protect those who don’t need it but leave the vulnerable in the gutter with a sheet and a prayer. There’s little justice in America for the vulnerable.

— This commentary was broadcast on WAMC Northeast Report, December 29, 2015.

 


Terrorism, the NRA “Solution,” and Safety at Home

December 8, 2015

For some people, the best solution to every problem is to shoot at it, and presidents aren’t leaders unless they’re yelling “charge” into battle. I want to bite off a domestic piece of that nonsense. In the wake of every terrorist tragedy, senators, sheriffs, NRA officers and supporters propose more guns, carry your guns, be ready to defend yourself, ourselves, wherever and whenever occasion arises.[1]

We have some 15,000 murders a year in the U.S., 40,000 suicides, mostly by firearms, and under 30 deaths a year from terrorism. CNN checked Obama’s comparison of deaths by firearms and by terrorism in the U.S. From 2001 to 2013, they found that people killed by terrorists in the U.S. were less than 1/1000th the number killed by firearms.[2] Firearms deaths dwarfed terrorism deaths even in 2001. Whether it’s a good tradeoff depends on what gets worse.

Note though, if we’re all armed, we’ll need to do things differently. Once we assume everyone is armed, when someone demands something, whatever it is – turn off the radio, get out of my way – are we toast if we don’t comply? Do guns become the tool of bullies? Isn’t that some of what police shootings of unarmed people reveal? Police say they were scared because someone with his back turned may have had something in his hands. Do we all get to be that scared, pulling the trigger at anyone whose safety we can’t determine? We’ll have to be suspicious. Who’s hot tempered? Who’s too scared to trust? Who’s a criminal, terrorist, gang member or bully?

America was built on trust and teamwork. Break that down and sap our strength. We might stop some terrorists but America’s strength will dissipate in squabbles and fear – like those that poison and stultify much of the Third World.

Arming ourselves will partially thwart some similarly-armed terrorists but guns can  be replaced by explosives which do their damage before anyone knows what’s happening.

A couple of decades ago a disappointed former student attacked our library – but thank heavens he attacked a glass door with an axe rather than attacking people with a gun. No school can avoid flunking some students out and no employer can avoid firing some employees. One such employee got a gun and murdered one of my clients some years ago. But the police are taught that it’s too late to react once someone starts to pull a gun. My client, armed or not, never had a chance. So now what?

There are alternatives. I’m a civil libertarian but I have no problem with cameras. Security staffs at many places have monitors showing them many parts of the building. I’m a lot happier with observe-and-respond than having a bunch of trigger-happy gun toters wandering around wondering if I or anyone else should be shot. Similarly, with the repeated police shootings of unarmed men, I’d be a lot more comfortable if they left their guns at the station for access only as needed. I’d also be much more comfortable with police departments and the FBI if they stopped bribing unreliable informants to trap people in stings, send innocent people to prison, and corrupt the Bureau in the process. Have a tool, use a tool. These are dangerous tools for routine use.

America would be much safer if we found ways to build on our principles, instead of abandoning them in the chimerical belief that we could protect ourselves better with guns.

— This commentary was broadcast on WAMC Northeast Report, December 8, 2015.

[1] See http://newyork.cbslocal.com/2015/12/03/ulster-county-sheriff-carry-guns/; http://www.nydailynews.com/news/politics/marco-rubio-slams-bill-guns-terrorists-felons-article-1.2455280; http://www.darkcanyon.net/Terrorism%20A%20Good%20Defense%20Is%20A%20Good%20Carry.htm.

[2] See https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2011/crime-in-the-u.s.-2011/violent-crime/murder; http://www.save.org/index.cfm?fuseaction=home.viewPage&page_id=705D5DF4-055B-F1EC-3F66462866FCB4E6; http://www.cnn.com/2015/10/02/us/oregon-shooting-terrorism-gun-violence/ .


Environmental Time Wasted

July 28, 2015

A news director at this station, about a decade ago, wanted me to engage in what some call pack journalism, to talk about whatever was occupying the press’s attention. I understood his point; people’s interest was already peaked. Plus the more people talk about the same things, the more it tends to sink in. But I’ve never liked piling on. If you heard it elsewhere, I feel no need to restate it. I like to bring up something else, or a different perspective. I feel more useful that way.

This week I’d like to bring up a case much less talked about than the Supreme Court term’s blockbusters on same-sex marriage and medical care. Those are very important decisions. But here’s another worth examining. On June 29, the Supreme Court decided Michigan v. EPA. According to Justice Scalia and the conservative majority, the case was about whether the EPA needed to consider the costs of regulation. According to Justice Kagan and the liberal dissenters, the case was about whether the EPA needed to consider costs separately before considering specific regulations.

Sometimes court decisions lead one down the rabbit hole with Lewis Carroll. According to Justice Kagan, the EPA did consider costs. It took costs into account in the specific regulations for each type of power plant. It considered costs by adopting ways to mitigate the cost of the required measures to catch up with up-to-date emissions control systems. It decided against more stringent controls because it decided they would not be cost-effective. And it elaborately examined the quantifiable costs and benefits. The problem: it did all that in the wrong order. The result – the rule is on hold now; the agency will have to do some work to show it studied cost the way the Court wants it done before it can reimpose regulation.

That’s one of the main purposes of taking administrative agencies to court – delay can be worth a lot of money to business and industry even if they will eventually have to comply. In other words, regulations can protect the public, but courts can delay them.

Barely mentioned was how much mercury and other toxic pollutants coal fired power plants could send into the air we breathe. Scalia and the industry said there were merely several million dollars damage to the public per year. Kagan and the EPA said the damage was in the tens of billions. Of course much of the damage cannot be measured in dollars anyway – it is about lives damaged and destroyed by mercury and other toxic pollutants.

Republicans have been fighting for years against regulation of mercury emissions. Democrats just as long have been fighting to clean the air of the kinds of things that could damage our health and our ability to lead productive lives. But consistency is the hob-goblin of little minds: Republicans would do everything possible to control addictive drugs that damage our lives, health and minds – they are used by bad people. But Republicans would not control pollutants that damage our lives, health and minds – they are emitted by good people. Democrats, of course, the reverse.

So which congressman, and which justice, is in whose pocket? Some of them apparently define good and bad people by the money in their pockets instead of the things they do to others. Whatever happened to equal justice?

— This commentary was broadcast on WAMC Northeast Report, July 21, 2015.


The Court’s attack on the “ever-normal granary”

June 30, 2015

I’ve been celebrating like many of you over the marriage equality and Obamacare decisions last Thursday and Friday. But my own celebrations are tempered by the realization that these two cases don’t symbolize any shift on the Court. Kennedy’s libertarian philosophy has paid dividends in the gay rights controversy for years. But the decision last November to hear the case challenging whether federal health exchanges could provide subsidies to those without the money to buy a health plan unassisted, turned into a trap.[1] The scale of damage that would have been done by blocking the subsidies made it impossible even for opponents of the program to shut it down. Nothing in the decision suggests that Kennedy had a change of heart about having wanted to declare it unconstitutional, and nothing suggests that Roberts had a change of heart about narrowing the commerce power, even though he had approved the individual mandate in the statute as a tax. Twenty years ago, Thomas wrote he would consider going back to the Court’s very restrictive definition of federal powers before 1937 when President Franklin Roosevelt’s appointments changed the Court’s philosophy. Apparently Scalia and Alito are on Board with him.

That brings me to raisins.

Horne v. Department of Agriculture,[2] looks like the Supreme Court is maneuvering to get us back to the era when it throttled government economic policy. Horne held unconstitutional a program to keep the supply of raisins on an even keel.

Roosevelt’s New Deal Administration had the dream of an “ever normal granary” for farmers. Their prices were spiking in both directions, making farming very difficult especially for family farmers whose resources to endure periods of low prices were limited. The statute was passed in 1937 to create the “ever-normal granary,” in order to deal with the effects of the great depression, stabilize prices, preserve supplies against shortages from drought or other natural causes and to protect farmers against “disastrous lows” from bumper crops.[3]

The result was a program to store portions of crops in government facilities when supply exceeded demand and release them in periods when yields were too low. It was a program designed by farmers for farmers.

The Horne decision used the takings clause to overrule part of that nearly eighty year old statute which had been designed to help pull the country out of the great depression of the ‘30s.

If one simply reads the words of this Roberts Court decision, it looks easy to get around. Government could use a regulation or a tax. And there are other ways to make this decision seem appropriate and unthreatening.

But I don’t believe it. This case has been part of a decade long set of challenges looking for a way to take down federal agricultural marketing policies. The attorney for the Hornes was a well-known conservative activist, professor and former judge. I doubt he handled this case just because he sympathized with the Hornes.

Similarly, when the Rehnquist Court decided United States v. Lopez in 1995 on federalism grounds all the constitutional scholars said it was insignificant, a shot across the bow but portending nothing. Within a few years it was clear they were wrong. The Court started declaring civil rights statutes unconstitutional as violations of principles of federalism that are nowhere in the language of the Constitution.

This case is not a one off. The Court has been developing takings doctrine so that it can be used to block federal regulation of the economy and the environment. The conservative faction on the Roberts Court is trying to develop legal tools to return the U.S. to a period in which we are a congerie of 50 small states instead of a single proud country. And if that happens, family farmers especially may be sorry to be free of federal regulation.

— This commentary was broadcast on WAMC Northeast Report, June 30, 2015.

[1] Linda Greenhouse, The Supreme Court’s Reality Check, NY Times blogs, June 25, 2015, http://www.nytimes.com/2015/06/26/opinion/the-roberts-courts-reality-check.html?rref=collection%2Fcolumn%2Flinda-greenhouse

[2] Horne v. Dep’t of Agric., 2015 U.S. LEXIS 4064 (2015).

[3] Mordecai Ezekiel, Farm Aid-Fourth Stage, The Nation, February 26, 1938, Vol. 146, No. 9, p. 236-238, available at http://newdeal.feri.org/nation/na38146p236.htm.


Democracy’s Future in America

June 2, 2015

The Court has now decided that states can stop judges but only judges from personally asking for campaign contributions. It left all the rest of its protections of economic privilege in place.[1] Corporations can use treasury funds to flood the airwaves with political ads. Donors can hide their contributions behind a variety of specialized corporate entities. The one-tenth of one percent of the wealthiest Americans can dominate American politics directly and through their domination of corporate treasuries.

As I explained last week, inequality in the United States is making democracy increasingly unsustainable. When the wealthy and powerful take control of the whole shebang – political money, jobs, the media – the mass of the public is left with few resources to control their government, while the wealthy and powerful have enormous resources at their disposal to control the people.

In addition, democracy is fairly explicitly under attack. Conservatives attack the voting rights of any who might vote against them. Corporations use arbitration clauses in consumer contracts and international treaties to sidestep democratic decisions and make it easier for them to tear down environmental, labor and any other regulation that the people want but the corporations dislike. Their argument against regulation of markets is a euphemism for rules that favor whatever they want to do. But their point is that democracy has no right to interfere. And they hide their contempt for democracy behind Reagan’s claim that government, democratic government, is the problem.

Both these direct attacks and the distortions of wealth on the political process create a real threat that this government of, by and for the people could perish from the earth, undermined by control over speech, press and politics and squeezed out by untouchable markets and the exclusion of democratic decision-making from anything corporations care about.

Only the Tea Party seems prepared to rebel and their exclusionary politics adds to the problem. The gun rights folk will, if anything, protect the current distribution of wealth, enforcing their prejudices. Liberals – race liberals, economic liberals, big money liberals – are hardly united.

Under domination from powerful corporate interests, we could hope at best for the crumbs off their tables. Welcome to the many so-called democracies in Central and South America, Asia and Africa, where hirelings and sycophants help control the public for the benefit of their wealthy patrons.

We could try to pull the Supreme Court off the ramparts of privilege and regain control over the use of money in politics. We could fight back by supporting independent radio stations like WAMC. Or we could hope for the best ‘til Brutus assassinates Caesar – though that could lead to the consolidation of tyranny as it did for the Romans and is now doing in the Middle East.

Can we rally to save the planet and save democracy before we have lost them both? As we used to say in Brooklyn, before the Dodgers finally won the Series, “ya gotta b’lieve.”

Next week, the primaries.

— This commentary was broadcast on WAMC Northeast Report, June 2, 2015.

[1] Williams-Yulee v. Fla. Bar, 2015 U.S. LEXIS 2983 (U.S. Apr. 29, 2015).


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