Response to School Shootings

February 21, 2018

After this latest school shooting with 17 dead, I’ve read wonderful pieces by people who lost loved ones to guns, and banal pieces by wonderful writers whose imaginations were fried by the horror. What’s left? Sometimes I try to convince, or fire the choir. Here I’m trying to understand why we can’t put the guns away.

There are many strands in our struggle over guns.

  • Some decided the Civil Rights Movement justified refighting the Civil War. There’s literature at gun shows and conclaves of gun owners that would be out of place anywhere else.
  • Some associations, like the NRA, respond to their most committed, and extreme, members. The NRA’s extremists found a way to hold and even enlarge their membership while pushing it further toward the wrong – the opposite of left is certainly not a synonym for correct.
  • Some politicians have been scaring people for decades. It’s us against them and support your police – hardly an issue until it’s used to justify shooting some people in the back – that’s against the law for everyone else and I can’t support so-called “law enforcement” that shoots people in the back.

Let me suggest another. The Founders’ divisions persist. The Founders talked and wrote about the general welfare, the opposite of selfishness. They did not glorify freedom from regulation. The record shows amazing levels of social regulation – and by the way you couldn’t keep ammunition in your house – it belonged in armories. The Founders believed in social responsibility, though they certainly did not always act the part.

On the other side, their “Don’t Tread on Me,” patriotic slogan is now taken as an emblem for extreme libertarianism. I’ve seen people so sure of their right to do whatever they wanted that they were outraged when cutting their driveway through a neighbor’s property and cutting down her flowering bushes drew a very angry response. And once the Revolution ended British restraints on westward settlements, the former colonists couldn’t wait to snatch Indian land across the Appalachians. Indians didn’t count any more than slaves did; in fact Indians were often enslaved as well as exterminated. If “we” want something, and “we” can get it, then “we” should take it. “Don’t tread on me.”

Many schools reduced violence by banning guns, but many gun enthusiasts think more kids with guns would make schools safer. Many cities reduced violence by keeping guns off the streets. To a carpenter problems can look like nails; to orthopedists problems can look like broken bones; to gun owners ….

The tools we hold invite the responses we make. They dis or disobey us, here’s my tool and it makes these surgical cuts in your internal organs. So as innumerable old western movies celebrated, you had to “hang ‘em up.” (Whoever thought those movies could teach us anything?)

It’s not just macho culture; not just about gender or sex. It’s about getting what we want, controlling the world, not sharing or living in it.

Trayvon Martin never threatened George Zimmerman even if he convinced a bizarre jury that he was in reasonable fear, but Zimmerman had a gun which made it easy to shoot a man in the back. That’s a piece of “American culture” I can do without. I much prefer people with the decency and the wisdom to try to live together in peace, paz, pacem in terris, shalom, salaam – peace in any language and the peace that we claim in all faiths.

— This commentary was broadcast on WAMC Northeast Report, February 20, 2018.

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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.


Canadian Comparative Religion Case

May 19, 2015

I’d like to tell you about a recent decision of the Supreme Court of Canada regarding religious education.[1] Quebec has a “mandatory core curriculum” which includes a Program on Ethics and Religious Culture, to teach “about the beliefs and ethics of different world religions from a neutral and objective perspective” as the Court described it. It “requires teachers to be objective and impartial” and “to foster awareness of diverse values, beliefs and cultures.” The court decided that freedom of religion required Quebec to allow a Catholic school, to teach about Catholicism from a Catholic perspective, but the Court held that the school nevertheless needed to present other faiths in a neutral way, a position that the school largely accepted.

I understand the problems with the case. I understand that there will be difficulties interpreting and enforcing the decision and the law on which it is based, and in balancing the rights of the schools and the students. But it’s also very interesting.

It has always been legal to teach comparative religion or the history of religion in public schools in the United States. The so-called “wall of separation” has always been about fairness toward all the students, denying government the power to promote any religious viewpoint over others. It has not been about total exclusion from the classroom. Here’s what our Supreme Court wrote:

While study of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not collide with the First Amendment’s prohibition, the State may not adopt programs or practices in its public schools or colleges which “aid or oppose” any religion. [2]

We perceive “exclusion” from public places and programs because litigants typically want to promote a specific religion or doctrine rather than treat us to a display of inter-faith brotherly love. Multi-faith displays aren’t generally a problem – except for the promoters. Most Americans support that kind of basic fairness. And there is much to admire in what Quebec has tried to do.

Some congregations themselves teach their young people about the differences in the ways people pray, taking them as a group on tours of other houses of worship. Sometimes the little congregation where I pray plays host to such groups, a practice I admire very much.

I’ve felt lucky over the years to spend time at Chautauqua where religious lectures and services are programmed into the Amphitheatre, so even if you don’t plan on attending you may be mesmerized just passing by, as I was a few years ago hearing thousands of people in the Amphitheatre in this historically Protestant religious community reciting a prayer in Arabic as part of what they called their Abrahamic initiative, exploring the different faiths that have roots in the religious world of the patriarch Abraham and the ancient Hebrews. They explored it by including clerics from each of those traditions.

My college experience was similar – we had to go to services, regardless of whose, and programming in the main university chapel was ecumenical – so I heard some of the world’s finest theologians of the era, regardless of faith.

I came to appreciate the fact that the finest minds of most faiths understand the similarity of their religious worlds, and the identity of unanswerable questions with which we all struggle. Most of all I appreciate what unites us and the import of that unity for us all.

Given the rise of religious war and cruelty in many parts of the world, I can’t bring myself to take brotherhood for granted. It is the hard won prize of our America.

— This commentary was broadcast on WAMC Northeast Report, May 19, 2015.

[1] Loyola High School v. Quebec, 2015 SCC 12 (2015), available at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14703/index.do

[2] Epperson v. Ark., 393 U.S. 97, 106 (U.S. 1968) quoting McCollum v. Board of Education, 333 U.S. 203, 225 (1948).


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).


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