This campaign makes me nostalgic for the draft

September 15, 2015

This campaign makes me nostalgic for the draft.

The Republican candidates have been telling us who they want to keep out, and whom they don’t like or wouldn’t lift a finger for – Mexicans, Iran, Muslims, the poor, women, peaceniks. And they make it pretty obvious whom they do like – whites, “real men,” cops, soldiers, guns, the U.S., especially the U.S. before any of us were born, and Christians. It’s all stereotypes, of course. No group of people is all good or all bad – not even conservatives, a big stretch for me. There are always gradations – people need to be judged on their behavior. But that’s too much work. Simplification is so much easier.

Let’s talk about something else they don’t like – democracy. All their blather about the free market and government is little more than an attack on democracy. In fact polls reveal that, on average, conservatives are typically less supportive of the freedoms in the Bill of Rights – except the freedom to carry guns so that, if what they define as the need arrives, you can blow whomever away. Heaven forbid we should have to live together. I glory in walking out of Penn Station in New York – it seems like the whole world is right there and managing to get along; how wonderful in this increasingly contentious world.

Oh on the subject of New York City, that’s a stereotype right there – for much of America New York City is Sodom and Gomorrah. Never mind that the City is actually composed of Americans from all over the country – their own relatives, friends and classmates – as well as a major first stop for immigrants, the same immigrant streams that composed the rest of the country. No, New York is heathen. I remember stopping downstairs for a haircut in a building where I had a temporary apartment in Ohio. The barber was a woman and as we chatted she told me that she was surprised that New Yorkers actually tried to help each other in the days after 9/11. Really – did she think we were coyotes?

It makes me nostalgic too – for the draft! There was actually a time when Americans from all over had to meet, interact, make friends, and did. They introduced each other to their eventual brides, formed business partnerships, learned to appreciate the best in each other’s backgrounds. The draft was truly the incubus of democracy. Theodore Roosevelt proclaimed “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.”[i] Got that right.

Actually the military has been working on that problem since the country was formed. Contrary to what many people think, Americans at the founding spoke many languages and have continued to speak many languages. The military struggled with whipping those disparate forces into a unified fighting team. They tried separate local units and units recruited by leaders like Roosevelt’s “Rough Riders” but they tossed all that aside and put people into those military tents without regard to their origins.

The racial divide forced the military to think again about the problem. It turned out that mixed race units in World War II came back positive about the possibilities of integration. But Vietnam was hard, a stalemate in the swamps in the middle of turmoil back home. But the military responded by making it a part of every officer’s responsibility not only to achieve racial peace and cooperation, but to make sure that soldiers of all races developed appropriately, got training and took on responsibilities leading to promotions.

As a youth I feared the draft; I knew my own physical weaknesses. For me the Peace Corps was a good choice, one that helped me develop as a human being. And there were problems with the way the draft was handled. But I miss it nonetheless. Truly national service is a very good idea for a democratic country.

— This commentary was broadcast on WAMC Northeast Report, September 15, 2015.

[i] Quoted in John Whiteclay Chambers, II, Conscripting for Colossus: The Progressive Era and the Origin of the Modern Military Draft in the United States in World War I, in The Military in America From the Colonial Era to the Present 302 (New York: Free Press, Peter Karsten, ed., rev. ed. 1986).

Grateful on the Fourth of July

July 7, 2015

As we celebrated the Fourth of July I found myself thinking back to a trip my wife and I made to visit friends on Long Island by way of the Ferry. We knew that there was a ceremony taking place at my alma mater, Yale Law School, for the swearing in of Judge Calabresi to take his seat on the federal Court of Appeals. Justice Souter was coming to perform the ceremony. And one of my classmates was already on the Court and would be there. So it would be a great party.

Judge Calabresi had been one of my teachers. His appointment to the Court was the occasion for his resigning as Dean of the Law School, a position he’d held for a decade. When it was his turn to speak, Judge Calabresi described how he and his family had left Italy in the early days of World War II when he was young. Calabresi is one of the most gifted and eloquent speakers I know and he described how America had been ready to give people like him – an immigrant and a Jew – an opportunity when they arrived. And he spoke about how he hoped to continue that tradition as a Judge, to be able to extend the benefits America had to offer to others, whether new to our shores or people we have been calling minorities.

My father and I were lucky to be born here but my mother and my grandparents were not. Looking around, the world could only impress me with the great good fortune of being born an American, in an age when America was prepared to extend opportunities to people like me as it did for Calabresi. Looking around now, we have visions of genocide on several continents. The sanctuary of America is such a special blessing. It is no wonder that so many want to come.

Like Calabresi, though not nearly as eloquent a spokesman, I grew up wanting to share and extend those blessings. I grew up understanding instinctively the blessing of what before the feminist revolution we used to call brotherhood – I keep looking for a good successor to the warmth and humanity of that term. The understanding that we are all God’s children, that none of us is an island, that the world we want for ourselves depends on extending the benefits of that world to others, is our heritage, our glory and our security.

But those glories have been hard won and have never been secure. In our own generations we have struggled to extend the benefits of America to African-Americans, Hispanic-Americans, Asian-Americans and immigrants from the various struggles of Eastern Europe and the Middle East. After the Supreme Court declared segregation inherently unequal and unconstitutional, cities all over the country, tore down the areas where minorities lived, destroyed their communities, declared them unworthy of investment, and the federal government financed white, but not black movement to the new suburbs, a move that took the jobs too, leaving in their wake poor, dysfunctional communities where once decent, striving, and thankful communities had once stood.

America has been good to me. I do not take it for granted. I want to recognize, encourage and support decent people of all colors and languages. Truly they add to the strength and the glory of this country, and brotherhood adds to the security of all of us.

— This commentary was broadcast on WAMC Northeast Report, July 7, 2015.

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

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

I don’t get it

November 11, 2014

I don’t get it. Political scientists tell us that the advantage of democracy is that the elected officials have to act for the benefit of most of the people. And if they don’t, they lose.

So the Republican Administration of George Bush delivered war, torture and economic disaster – and the Republicans then lost the White House. But then the Republicans calculated that if they could prevent Obama from delivering any benefits, they could take over. They went on the campaign trail saying that Obama failed because he hadn’t forced them to pass what he wanted, and at the same time telling the public that he had done a great deal of damage by doing everything he wanted to do. Never mind the contradiction.

But lots of people seem to have bought it. So how’s democracy supposed to work?

All over the political spectrum people seem to be voting against their own interests, convinced by nonsense that what hurts, helps them. Hard-working people who don’t make a lot of money vote for tax breaks for the wealthiest Americans. Businessmen vote against investment in critical infrastructure they use daily.

The electoral process looks tribal to me. Science, expertise, experience, all get reinterpreted by who’s who supporting what. If Princeton economists support policies that help the poor, then those policies must be bad and must not support “me” – because my interests differ from the interests of the poor. Remember I’m middle-class. I couldn’t share the interests of the poor. Increase in the minimum wage? Forget it; I’m on salary. By the way who’d you say buys my stuff? Couldn’t be we’re all in this together!

Well most of us. See “I’m” on the side of the billionaires, even though they make infinitely more than me and won’t share a penny – that’s why they pay for so many lobbyists to squeeze the last penny out of the government, and stiff me all the way. That isn’t supposed to happen in a democracy.

Except that the plutocrats – ok that’s the old name – the super-rich, the 1/10 of 1%, or fewer, the oligarchs – cut the bottom out of the voting booths by making it harder and more expensive to vote, and by splashing money at the media and the commentators ‘til it sticks or just confuses people so they stay home – so our oligarchs can control the political system for themselves.

Will the people fight back? The damage is all over the legal spectrum. Patent and copyright law? Forget the artists and inventors. Minimum wages? Forget the workers. Infrastructure? Forget the people who drive or ride – the super-rich fly private jets or live abroad. Forget the small business that benefits from infrastructure – the super-rich got their breaks for businesses so big they don’t need to worry about regular folk – they own the markets. Taxes – guess who gets tax relief while the rest of us are left with the bill while the super-rich make noise about deficits? Wonder why we have those!

Are we letting democracy sink that low? Sounds like the dictator’s game – shrink the electorate and lavish huge benefits on your supporters.

— This commentary was broadcast on WAMC Northeast Report, November 11, 2014.

A Blessing on Both Their Houses

July 29, 2014

Listeners and readers of my commentary know that I have spoken out against what I believe is Israeli misbehavior. So I get flooded with one-sided petitions condemning Israeli behavior. To make myself completely clear, I see merit and fault on both sides. I will not sign one-sided petitions.

I am reminded of my conversation with a Palestinian student who argued with me that Palestinians have the right to kill Israelis, any Israelis, military or civilian, and they have no right to shoot back, only to accept their fate. I questioned him to make sure I was hearing him accurately. What he was making clear was the attitude, or brain-washing, that dehumanized the other side. That is the attitude we have to fight against. Read the rest of this entry »

For a Better Education

July 1, 2014

A recent headline read, “Slow Common Core.” For quite a long time there has been a backlash against anything viewed as “too tough” for our kids. That is a tendency of living in a democracy. Anything tough for our kids is bad but at the same time they have to get a fabulous education that will equip them for life’s challenges. So the solution is teachers who can make everyone learn painlessly. And therefore, if anything goes wrong it’s the teacher’s fault, not the student’s. Read the rest of this entry »

Economics, Lawyers and the Risk to American Democracy

April 1, 2014

Ever notice that I frequently talk about economics. What’s a lawyer doing talking about economics? I did read and study economics but there are other reasons why economic issues are dear to this heart.

Lawyers do lots of different things. But for many of us, law is a helping profession. We work with people who are headed for bankruptcy and other events that will turn their lives upside down. We do our best to help them avoid personal tragedies – or pick up the pieces. We don’t think of clients as numbers but as people, most of whom we like and respect. We learn not to think of financial reverses as a judgment about their character, decency or personal value. It happens for all sorts of reasons, often beyond our clients’ control. When it is a mistake, it is often a part of learning how to do business or operate in this world. Some of the world’s most successful people have been through bankruptcy. Up close and personal, we care.

So the national recession wasn’t just a set of numbers for me. It was a catastrophe in the lives of many people. They were passengers on the national ship on a foggy night when the captain  crashed into another vessel. Millions of people went overboard, leaving their jobs and belongings behind. Rescuing people isn’t a choice; it’s an obligation just as it was not optional whether to pick our friends up from the wreck of the Achille Lauro. An S.O.S. has a clear and obligatory meaning.

But there is another reason. One could trace it to a famous French aristocrat who visited and wrote about the U.S. in the 1830s but statistical studies beginning after World War II keep making the point that poverty and inequality are both hostile to the survival of democracy. Historians studied the failure of democracies on multiple continents and reached the same conclusion. Others with different methodologies keep reaching similar conclusions.

It’s not a surprising conclusion. During the Great Depression in the 1930s, many were worried that we would lose our system of self-government, and some advised President Roosevelt to take dictatorial powers, but he refused. Now science has come to support common sense. Poverty can be dangerous, not only to individuals but to society. It makes people desperate and when they are, all bets are off.

With that knowledge, it is painful to me to watch Congress leave the victims of corporate shenanigans in the dirt as if they were so much trash. And as an attorney, it is particularly painful to me to watch the U.S. Supreme Court under Chief Justice Roberts doing everything in its power to play the role of the Sheriff of Nottingham, robbing from the poor to pay the rich. Many of those decisions are complex legally as well as economically but their effect on the fairness of the contracts we sign daily and on the lives of many people are extensive and often tragic. To me, the Roberts Court is threatening our democratic patrimony.

The personal suffering would be enough. The risk to our country is hard to bear.

— This commentary was broadcast on WAMC Northeast Report, April 1, 2014.


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