Happy New Year

January 1, 2019

In keeping with the spirit of the day I’d like to share a prayer that expresses ways in which collectively we have fallen short and need to do better. My hopes for the new year are entwined in that doing better. I think it makes little difference in whose house of worship I found the language because I think we all share it though the words may vary:

We dishonor You when we dishonor our society:

For our failures of justice, … [Lord], we seek forgiveness.

For being indifferent to deprivation and hunger,

while accepting a culture of self-indulgence and greed.

For abuse of power in board rooms, court rooms and classrooms,

and for accepting the neglect of children and elders, the ill and the weak.

For permitting social inequalities to prevail,

and for lacking the vision to transcend our selfishness.

For glorifying violence and turning hastily to war,

and for allowing history to repeat itself.

For behaviors that risk the future of our planet,

and for wreaking havoc on our only true inheritance – God’s creation.

What I always liked about attending religious services is that they create a time to hear and express the finer goals of life. And so too in those words.

In thinking about each other we recognize that everybody counts, that achieving our common goals depends on recognizing the importance and humanity of all, so that we can pull together to achieve what is crucial to us all.

In thinking about the ways these values resonate in each of our faiths, we recognize how much more we are linked than divided, whether because some of our faiths were bred on the same Middle Eastern mountains and deserts, or because of the miracle by which these ideas have been repeatedly reborn across the globe.

In thinking about the transcendence of these common values of generosity, caring, fairness, justice, peace and concern for the world we share, we think about the unity among our faiths and among us as people.

The narratives of how each of our faiths came to share those values differ but we share the values – the Golden Rule, Loving our neighbors – we share a tradition of mutual care and concern of which we can be justly proud and which deserves our commitment. Indeed, it is the only path to the survival of our earthly home and the possibility that our children and grandchildren will live lives unembittered by the world collapsing around them, from fire, flood, hunger, poison, thirst or scourge. I’m thinking about Maggie and Rebecca. Perhaps you’re thinking about Jodie and Joseph. We and all our children and grandchildren share this world. And how we and they come out of it depends on how well we share it and take care of each other.

Happy New Year

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Happy Holidays to All

December 25, 2018

This is obviously a very special day. We’ve been fortunate enough to celebrate the season in many ways. Last night we celebrated a Peruvian Christmas with very dear friends, some of whom were immigrants, one who lived with us while attending college. In the Peruvian tradition we were supposed to wait ‘til after midnight to eat and share presents but the children made fast work of that!

 

A few nights ago, we took part in the Persian winter solstice celebration of Yalda with another group of friends, immigrants and proud Americans.

 

We’ve already celebrated the eight nights of the Jewish celebration of Hanukkah, a holiday that became a bit bittersweet when my dad died on the first night of Hanukkah some years ago. And before my in-laws passed, around that same time, we used to drive down to North Carolina for Christmas, a delight for the adults which they made totally overwhelming for the grandchildren.

 

Here in Albany, our daughter used to play with the Empire State Youth Orchestra for Melodies of Christmas – I still have the sweatshirt!

 

One of the members of the North Carolina part of our family made her career directing 911 emergency response teams to scenes of distress and we quickly learned how hard that was around Christmas because the tragedies she had to deal with seemed that much harder during the holidays.

 

So, let’s include everyone with words from Pete Seeger’s Letter to Eve:

 

We’ got to get aworkin’ on []buildin’ … a decent home for all o’ God’s children!

Four thousand languages in this world, means the same thing to every boy and girl

Oh-oh Pacem in Teris, Mir, Shanti, Salaam, Heiwa!

Peace, for everyone.

— This commentary was broadcast on WAMC Northeast Report, December 25, 2018.

 

 


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.


The Sacredness, and the Uniqueness, of Brotherly Love

July 17, 2018

The ethnic slaughter in so many parts of the world – Kenya, Myanmar, Rwanda, Sudan, the former Yugoslavia, the “troubles” in Ireland, Ukraine, the blood shed at the separation of Pakistan and India – make the uniqueness of American anti-discrimination rules stand out both for their moral high ground and for their protection of human life.

They provided a way to live together in peace, even if getting there has been difficult. They provided a beacon, a light to the world, on living together. Conceived in part as a city on a hill; America was to light the world with our example. Indeed it has. That strong belief in the equality of mankind and the welcome to people from all across the globe has always been attractive.

The Enlightenment in Europe was largely about the idea of equality and learning to live with people despite differences in religion and diverse origins. America was founded on that Enlightenment ideal and, while never quite satisfying its own ideals, to an appreciable extent lived it. In the colonies, after the Revolution and until modern times, the U.S. has welcomed immigrants. Protestants, Catholics, Jews, Muslims and other faiths were here from the Founding and helped build this country. It is an experiment both in peacefulness and in the Biblical injunction to love thy neighbor, to do unto others as we would have them do unto us. It has been a religious enterprise, a nation building enterprise, and an enterprise in foreign affairs for which this nation has been justly celebrated.

Until now.

Would Ireland, India and so many other places have escaped their rivers of blood had their colonial rulers sought to bring people together in fairness, and ruled from the moral high ground, rather than striving to divide that they might conquer? To imagine is to wish for them the brilliance of the American solution.

America has brought peoples together for centuries. Public schools were conceived to bring together rich and poor, and they were soon called to bring together boys and girls. The military and large businesses made it their mission to bring people together across ethnic, religious and language boundaries that they might have unified armies and a unified workforce. Businesses created Americanization programs from which immigrants emerged proud Americans. Teddy Roosevelt told America that nothing brings men together like the military tent. Even racial prejudices have been receding in the face of integration – this nation has been celebrating African-Americans in music and the arts from the beginning of the twentieth century if not before, in sports especially since Jackie Robinson joined the Dodger lineup in 1947, and in many other areas since as having colleagues, bosses, employees, neighbors, friends and even spouses from different communities of race, religion and ethnic identity has become much more common. This march toward realizing the promise of equality has been going on for two hundred fifty years. Much of America has been shaped by that march, by its progress, by its moral growth.

Nothing has been more American than reaching out – in private groups and NGOs that have provided services abroad, and in government groups like the Peace Corps, US AID, Volunteers in Service to America, programs to acculturate immigrants here, provide the tools to leave poverty behind, and bring people from all cultures together in our schools and businesses.

Nothing has been so attractive to the world, as the fact that people everywhere could see themselves in us. It is a great heritage, a bulwark against all the beasts of the world; we must not forsake it.

— This commentary was broadcast on WAMC Northeast Report, July 17, 2018.

 


The Middle Class and the Poor

December 19, 2017

This is a season in which many of us make donations to help those with less than we do. But in the larger context, we need a better understanding of the poor.

For years now, politicians have been talking about the middle class. Being in the middle class doesn’t mean that one has it made. There are unfulfilled hopes and potential financial shocks that could knock almost any of us down and out. We know that and many of us are rightly concerned about it. The market has no feelings. It dispenses with people like so much trash. That should leave all of us concerned.

But when politicians talk about the middle class, I hear something else. I hear them telling us that no one else counts, especially not the poor. Many people treat the poor like trash. We even have names for it. A lawyer working for me once described his own family as poor white trash. He was nothing of the sort of course and his family couldn’t have been either – they brought up a very decent young man.

Tom Paxton wrote a song in which he says “If the poor don’t matter, then neither do I.” I had the pleasure of telling him after one of his concerts that song was very meaningful to me. I spent about ten years as a poverty lawyer in various positions in three different states. My clients weren’t trash and they did matter. They were decent, hardworking people who had suffered some reversal. Often, just as hard as the loss of income was the blow to their pride when they were out of work. The poor don’t have a financial cushion when things go bad. They can’t retire and rely on the pensions they don’t have. I remember working to get one of my clients who did have a right to a pension – it was thirty dollars a month.

With no money coming in, they spend most of their time trying to find things cheap enough to squeeze into their meager budgets. When people are poor, they are also very vulnerable not only to emergencies but also to fraud – they have little time or capacity to compare or investigate. Everything looks like an opportunity, even though too many offers are a mirage, squeezing out what little people have left.

We in the middle class are also linked to the poor because the worse they are treated, the worse we can be treated. That’s hardly a new observation. Free laborers in the pre-Civil War north objected to the way slavery lowered what they were paid for their labor. We are all affected by everyone’s wages. When the minimum wage goes up, so do lots of other peoples’ wages as well. When wages are set or negotiated it is always done with an eye to what other people are being paid.

The poor matter in another way. It’s very damaging to all of us to treat people like trash. Treat people like trash and train them to behave like it, and train ourselves to misbehave. George Mason spoke from experience when he told the Constitutional Convention that slavery made tyrants of the slaveholders. Civilization and civility require civilized behavior from all of us.

It’s also political. For all our fussing about corruption, Commonwealth United, respect for people of all backgrounds, and other issues of concern to those of us who feel like we are in more comfortable circumstances than the poor, who are our allies? And if we want allies, are we theirs?

Tom Paxton was right, if the poor don’t matter then neither do I.

— This commentary was broadcast on WAMC Northeast Report, December 19, 2017.


What’s to blame for our divided nation? The cause can also be the cure

May 10, 2017

My views of the legal contribution to American polarization and what can be done about it have now come out as

“What’s to blame for our divided nation? The cause can also be the cure” [click here] on TheHill.com. Enjoy.


Polarizing America

January 31, 2017

I’d like to give my spleen a break for a week and talk about some of the dynamics that are polarizing  America, that neither side can solve because the problem is structural. Law has contributed with crucial changes regarding political parties, the media, the draft and residential segregation (which Brown did not prevent). I’d love to hear good suggestions for countering the polarizing effects of those legal changes.[i]

Primaries originally broke up state monopoly parties. We’ve long known that primary elections push candidates apart to appeal to their parties’ most committed voters. After 1968 the primary system became the exclusive method for nominating presidents, pushing the parties further apart.

In broadcasting, three networks controlled radio and television until Congress changed copyright rules, allowing cable television expansion to over a hundred channels, and niche broadcasting to separate audiences. The courts and Federal Communications Commission also killed the Fairness Doctrine, which required broadcasters to present a balanced presentation of controversial issues of public importance. Then Congress made it almost impossible to hold any internet company responsible for even the most outrageous falsehoods published on their systems. Those media law changes made it unnecessary to pay any attention to opposing views. Plus, instead of limiting damages for defamation, as Justice Marshall suggested, the Court gave media much more complete protection.

At the Federal Housing Administration, officials long refused to insure mortgages to African-Americans, regardless of income. That prevented African-Americans from joining the march to the suburbs, drove disinvestment in their existing neighborhoods, and pushed us apart.

The end of the draft has been huge. The military had drafted people without regard to wealth, class, or geography. President Teddy Roosevelt said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.”[2] And indeed the soldiers came home with lifelong buddies from all over America. Arguments about the Vietnam war ended the draft and led to the so-called volunteer army, which doesn’t reach the same cross-section of America. That changed our attitudes toward each other, and how polarized we’ve become.

There were good reasons for the changes to the nominating system, the media, and the draft but the combined price has been to polarize us. Polarization matters. It blocks our ability to listen to each other, even to care about each other. And if we can’t care, the very notion of public welfare, what’s good for all of us, seems like self-pleading.

The market can’t pick up the slack; it fails in many ways. Worse, for market ideologues, democracy, the major counterforce to the market, seems illegitimate. In other words, the stakes are huge – the legacy of our Revolution, our Constitution, and our collective welfare. Somehow, we have to break down polarization, and restore what used to bring us together or find substitutes – for public schools, military service, media that reached across aisles, and integrated housing and communities.

I doubt the cat can be put back in the bag, especially in this polarized environment, but I’d love to hear good suggestions.

— This commentary was broadcast on WAMC Northeast Report, January 31, 2017. For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[1] For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[2] 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 (Free Press, Peter Karsten, ed., rev. ed. 1986).


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