The Violence of Bigots; the Devil’s Pox on the Skin of America

November 6, 2018

October ended painfully: an anti-semitic attack in a Pittsburgh temple killed eleven; a racist attack at a Kentucky grocery store killed elderly African-Americans. Though hundreds of miles from here, friends and colleagues had losses. Close friends were married at that Pittsburgh Temple.

We missed the Sunday interfaith memorial in Albany but joined the Monday gathering at Temple Gates of Heaven in Schenectady. Approaching it, I saw friends who’d been Peace Corps Volunteers. Our job had been to extend this country’s hand of friendship to peoples abroad. Now we shared the pain from prejudice at home.

Schenectady Clergy Against Hate organized the memorial for a standing room only crowd, to share our grief for the dead, the injured, their families, and our country. The Clergy Against Hate consists of many denominations of Christian, Jewish, Islamic and eastern faiths, all of whom mourned the losses and stood for a world of love and concern. Minister Jonathan Vanderbeck, of Trinity Reform Church, told us “We stand against hate and oppression,” adding “that really carries throughout all our religious traditions.”

Our country included people of multiple faiths, origins, and languages from its founding. America’s revolutionary armies included free and enslaved Blacks, as well as Jews who had first settled in the colonies under the Dutch.

The Founders described America as a beacon shining a path from wicked, murderous hate elsewhere to an enlightened place of brother- and sisterhood. A “hundred years war” had scourged Europe in the 14th and 15th centuries. Thirty years of religious war devastated it in the seventeenth century. A global seven years’ war reached us as the French and Indian War. America’s Founders struggled to protect us from the killing, unifying us into one enlightened country, where we could learn to live with and benefit from each other.

Even before the First Amendment prohibited any establishment of religion or interference with each other’s freedom of religion, the Constitution made three references to religion, reading “no religious test shall ever be required as a qualification to any office or public trust under the United States”[1] and providing for a secular affirmation as an alternative to each provision for an oath.[2]

The Founders welcomed and encouraged immigration in order to people the continent. Most understood freedom and human rights as universal. Prominent members of the Constitutional Convention led anti-slavery societies. Southern insistence on slavery postponed the extension of freedom to all until the Civil War, after which the opening words of the Fourteenth Amendment were “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.”

Think about the importance to America of that commitment to universal human rights. By coming here, immigrants from all over the world not only shared the effort and ingenuity that built our country, they showed by their presence that others could see themselves in America. Feeling that bond, civilized countries repeatedly allied with us to protect their freedom and ours. America helped create the European Union in order to bury centuries of warfare among European countries, uniting historic adversaries lest they fight again, and pull us into yet another World War. America led in developing international institutions and alliances which project the power of American ideals to protect us and much of humanity.

Racists claiming to represent the real America, are instead ripping out the veins and arteries that power our country. They’re doing the devil’s work to destroy all that has been great about America.

So don’t forget to vote – we’ve got work to do.

— This commentary was broadcast on WAMC Northeast Report, November 6, 2018.

[1] Par. 3 of Article VI.

[2] Art. I, §3; Art. II, §1; Art. VI, §3; and the 4th Amendment.

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The Innocence Project

December 26, 2017

I want to talk about people we are less used to talking about around Christmas.

Several times a year I am guaranteed to have a good cry – whenever I get the latest bulletin from the Innocence Project. Without fail they describe at length someone who spent decades in prison, sometimes on death row, for crimes they did not commit. As a human being I am always heartbroken. As an American who believes that we all have a right to liberty, I am both sick and outraged.

And once freed, what education, training or experience do they have? Did they have a chance to start a family and are any left to warm their hearts? The dislocation of freedom is immense. I’ve met men in prison afraid to come out. Those lost decades freeze the soul as they scar past, present and future. Freedom is precious. It also unravels.

I am outraged because there are too many in this country, too many with the power, to keep people in prison, even execute them, even after it has become clear that they were innocent of the crimes for which they were convicted. Justice O’Connor, bless her heart, saw that as unacceptable, although we didn’t always agree on the facts. But the Supreme Court has not yet found the character or the will to conclude that it is unconstitutional to hold an innocent person once that becomes clear, or to sit tight and deny a hearing once evidence has been found that makes it improbable that the prisoner was guilty. The Court has refused to find a right to DNA evidence when that could prove innocence. And prosecutors repeatedly do everything they can to withhold evidence that could result in justice instead of in conviction. The Supreme Court has even said that there are no penalties for withholding evidence even when it is in clear violation of constitutional obligations.

As an American, it is an understatement to say that is no source of pride. As an attorney and a human being, it is a source of disgust – and fear. A legal process that ignores justice is a threat to us all. The purpose of the Bill of Rights and of the Fourteenth Amendment is to protect us all from the abuse of law to polish the prosecutor’s reputation or prejudices instead of serving the cause of justice. Unfortunately attorneys know that the criminal process is more like a canning factory than an effort to separate the innocent from the guilty, truth from lies, and fairness from abuse.

The ACLU and the CATO Institute, otherwise often on opposite sides, come together in support of truth and accurate decision-making. But when the issue is the rights of people accused of crime or the rights of people who have been imprisoned, too many eyes glaze over, not from tears but indifference. Yet those rights, if and when they are honored, are what differentiate us from a police state where people can be imprisoned because of their politics, their parentage or their refusal to kowtow to the unreasonable demands of authorities. These are part of the central meaning of being an American.

The people whose title is Justice of the United States Supreme Court who vote most consistently to protect the right to life of fetuses are the least likely to protect life in any other context. That is hypocrisy under black robes. The behavior of callous prosecutors and unqualified Supreme Court justices is an American disgrace.

— This commentary was broadcast on WAMC Northeast Report, December 26, 2017.


From Chaos to Monopoly – the End of Net-Neutrality

December 12, 2017

Those of us warning that American democracy is threatened have still been stunned by how fast. Political polarization elsewhere has led democracies to collapse. Polarization here has largely been the unintended consequence of a legal transformation. But the cure may be even worse.

Over the past half-century, legal changes fractured the media by helping cable television  and available broadcast channels expand. Before fake news became an industry, the fractured media promised us a more democratic marketplace of ideas. But it made us a fractured audience, no longer watching or hearing the same news.

Court decisions eliminated liability for innocent misstatements that defamed people. The fairness doctrine once required all broadcasters to provide balanced coverage of controversial issues of public import. It was dismantled in the 70s. Now TV and radio are much more one-sided. A new statute and court decisions gave internet providers immunity even for fake news. The internet rapidly became both the intended source of valuable views and information, and the unintended bastion of garbage, leaving readers, viewers and listeners much less well-informed about the competing arguments over public issues.

Meanwhile, courts and state legislatures put presidential primary elections firmly in control of the nominating system.  Primaries often drive candidates to the extremes to capture majorities of their own parties, not toward the center to capture independent voters. Instead of balancing each other, therefore, the media and nominating systems increasingly radicalized each other since the 1970s.

President Theodore Roosevelt once said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.” The draft ended in the 70s, a casualty of our disagreement about the war in Vietnam. The public schools have been hollowed out by charter schools and re-segregated with the help of suburbanization, zoning and Supreme Court decisions after Rehnquist took its helm in 1986. So neither schools nor the draft bring us together as they once did.

Federal agencies were at the heart of segregating the suburbs before and even after Brown v. Board, deepening polarization in the process. Financial institutions only compounded the damage with their sub-prime loans.

In this polarized, divided, segregated era, the Court in Washington decided the nation’s most contentious issues of race, police behavior, school prayer, abortion, equal rights for women and people with differing sexual orientations.  These were mighty battles over justice with enormous consequences. Mildred and Richard Loving could marry and live as a devoted couple near their relatives in Virginia despite their difference in racial origin.  Similar opportunities opened for women, African-Americans and members of the LGBTQ community. Some went free who would have been hanged for crimes they did not commit.

But the Court’s decisions sharpened the polarization among us. Where now can we hold a “national conversation”? In a fractured media? In a primary system designed to favor extremists? In the military tent? Or walking our kids to school? We have, unintentionally, torn the fabric of our community. Still we could rewrite some of the rules that aggravated our polarization.

But on Thursday, the Federal Communications Commission wants to eliminate net-neutrality and give a few large corporations control over what we see and hear. I’m concerned by which friends of FCC Chairman Ajit Pai would get control over our news sources. We’re going from chaos to monopoly. With Trump leading the charge against the most careful and professional news sources, it feels like we are headed to autocracy and bye-bye democracy.

— This commentary was broadcast on WAMC Northeast Report, December 12, 2017.


Proposed Amendments to Overcome Citizens United

July 19, 2016

This is the third in a series on Money in Politics. Last time we discussed the difficulty of getting the Court to overrule Citizens United. Because of that, several constitutional amendments have been proposed as joint resolutions and introduced in Congress in order to undo Citizens United and overrule the idea that a corporation is a legal person. After studying them, however, it became clear they have been so sloppily drafted that no one could tell you what they would do.

None that I’ve seen addresses the associations we join. Political, civil liberties, civil rights, and environmental organizations, and professional associations, all take stands on candidates or political issues. The ACLU went to court years ago to protect its ability to take out an ad over the impeachment of President Nixon.[1]

All except the smallest are incorporated and are protected by the right of association. The First Amendment protects speech, press, assembly and petition. In combination, that’s what our associations do to influence public attitudes about major issues. They incorporate to outlast their founders, use the courts, open bank accounts, organize membership and leadership, seek tax-exempt status and protect members from liability for any mistakes the organizations make.

Those associations matter. The lasting impact that people like Rosa Parks and Martin Luther King had on the Civil Rights Movement depended on the organizations that did the advance work, and drove home the meaning of what they and other great leaders of the Movement did. That’s true of most successful political movements. Yet the proposed Amendments stop after denying that corporations have constitutional rights and authorizing legislatures to regulate them.

A literalist could read the Amendments as superseding and repealing all previous protections for the organizations we rely on to reform politics, the environment, civil rights and just about everything we care about. Nothing in the proposals protects them.

Sometimes courts hang on to interpretations of older text and neuter newer language, as the Supreme Court has with language in the amendments passed in the aftermath of the Civil War. In the absence of any language about associations, it is impossible to say what the courts would do to the proposals regarding associations.

One proposal denies that it limits the people’s rights, but it is attached to text which limits what the Court defines as part of the people’s First Amendment rights. The meaning of that exception is mysterious, just authorizing courts to figure it out.

Only two amendments mention a free press. They merely say they “shall [not] be construed to alter the freedom of the press.” That’s nice but the exceptions swallow the proposals because much of political campaigns is in or can be done by the press. Whoever controls the distinction controls the result, whether authorities can squelch the press or the press becomes the next form of improper power.

Corporations often set up subsidiaries for otherwise regulated functions, such as associations or media companies, like what Murdock did with Fox. Some media companies are owned by conglomerates. Many associations set up separate organizations for tax purposes. The NAACP set up Thurgood Marshall’s organization around 1940 to separate its legal work from other organizational work. Lawyers fashion ways to live with rules. So what would a press exception do?

Nor should media companies and political associations have a monopoly on political speech. The law should be neutral and should not protect the speech of some while shackling the speech of others.

Whatever you think of the Roberts Court, and I’m no fan, these are serious issues and no proposal addresses them. Instead they provide feel good language covering sloppy and dangerous clauses.

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

[1] Amer. Civil Liberties Union, Inc. v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973).


Professor Paul Murray’s class on the civil rights movement

May 9, 2016

Paul Murray went South as part of the Civil Rights Movement. For many years he has taught a course on the Civil Rights Movement at Sienna College and taken high school and college students on trips to see places made famous by the struggle for freedom and equality.

Professor Murray, Paul to many of us, is retiring soon. This year’s class on the Civil Rights Movement has been his last. For the last session, he held a discussion of whether the Civil Rights Movement had succeeded or failed. Just three students thought it had been a success. Paul asked why. Students brought up discriminatory policing, the impact of putting so many Blacks in prison for behavior that would not get whites prosecuted let alone incarcerated, and the extent to which Blacks still go to schools segregated by zoning and other boundaries, understaffed with fellow students who mirror their own economic backgrounds and skin color.

Gradually Paul got the students to drill deeper –hadn’t some things changed for the better, where and for whom? Elementary schools changed less than colleges and universities. Housing patterns are more segregated after the emergence of white suburbs and wealth is still very skewed. For one student, her very existence depended on the Civil Rights Movement when the Supreme Court held states could no longer ban intermarriage of whites and Blacks.

My wife commented that the world is different from what it was when she grew up in the South or even when we moved into Albany in 1979. African-Americans do many things they couldn’t then. Out shopping and dining years ago we’d just see African-Americans working as busboys and janitors. Now we see them as waiters, hosts, and salespeople. We work alongside African-American professionals, lawyers, businessmen and faculty. And when we came to Albany the city was still geographically and politically divided by faith and national origin in a way that has long since passed.

Another woman commented that being white is actually a step forward for many whites in the room, who grew up knowing that our own groups were discriminated against. Somehow all those ethnic and religious differences no longer separated good, helpful, valuable people from anyone else, and we’re all much richer for it.

The Civil Rights Movement made a difference to all of us, Black and white. A law professor years ago wrote a book about the African-American contribution to the First Amendment.[1] Much of the improvement in Americans’ sense of brotherhood was also forged in the Civil Rights Movement.

But don’t count on it. We had an integrated federal bureaucracy for half a century after the Civil War until President Woodrow Wilson drove Blacks out of the civil service. We had integrated restaurants and theaters in the South before the Klan terrorized southern Blacks, taking advantage of Supreme Court decisions that what happens in the South is no business of Congress and federal prosecutors.[2] The Supreme Court in our own time has called a halt to integration, repeating its 19th century backsliding. The schools and criminal justice system are still failing Blacks.

I don’t know how long it will take. Visitors to Paul’s class had spent their lives working for justice and we all have to keep working for it. I want to believe that our work and social relationships will gradually drive racial justice in the same way they drove the integration of ethnic groups and the gay rights movement. It’s been harder and slower regarding race but we will get there, thanks to people like Professor Murray.

— This commentary was broadcast on WAMC Northeast Report, May 3, 2016.

[1] Harry Kalven, The Negro and the First amendment (Chicago: Univ. Chicago Press, 1966).

[2] C. Vann Woodward, The strange career of Jim Crow (New York: Oxford University Press, Commemorative ed., c2002) (1955).


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).


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