A Scary Election

October 25, 2016

Over a century ago, populism was sweeping the country, with white and African-American workers standing together, until a scared Southern aristocracy started race-baiting. Whites took the bait, breaking the back of Southern populism. The rest of the country surged forward because their governments cared about the people, the regular people, not just the fancy financiers. But not in the South, which languished.

That race-baiting aristocracy also killed political competition, leading to the one-party South. No democracy, no concern for the people, no progress. Because race-baiting broke the back of Populism.

Trump uses rhetoric to divide the people hoping he and his cronies can conquer while the rest of us fight each other. Trump attacks everyone – immigrants, African-, Hispanic-, and Muslim-Americans, women, hard-working, warm-hearted, caring Americans of every background.

Democracy is in danger when people can’t accept the legitimacy of disagreement, drown out and threaten opponents, and don’t respect the right to vote of other people because of where they live or where their parents came from. Losing respect for others threatens democracy. Most of us believe that everyone has a right to their opinion. Democracy is in trouble when some try to shut down that right.

Democracy is threatened by campaign crowds yelling “Lock her up” and “Hang her in the streets.” Promising to appoint a special prosecutor to go after Hillary, Donald feeds their hostility to democracy. Like Italy’s Berlusconi, Donald tries to cover revelations about his behavior by throwing hate to angry crowds. Hillary responds “That happens in dictatorships, not democracies.” She’s nailed it; Trump does not want to lead a democratic country; he’s trying to sabotage it.

Trump’s racism and nativism has broken the back of the movement for economic justice. His invitation to settling the election by beating people up and using their Second Amendment rights encourages force, intimidation and even guns, to take Hillary out. Telling his supporters to prevent the polls being rigged codes Trump’s message to control the election by threats and intimidation.

Democracy is in serious trouble when police and military institutions take sides. Individuals in the uniformed services have every right to their political views. But we’ve had a tradition of keeping the military out of politics. We should be able to rely on them to protect every voter’s rights regardless of politics. The military and police need to be above politics or democracy is at risk.

Trump is trying to forge a coalition to muscle democracy out of the way.

If the self-proclaimed rich guy wins, he knows how to enrich himself and his cronies. But he pulls his supporters along with constantly repeated half-truths, lies and fabrications until they seem true because he says them so often – stringing them together like a rant overwhelming any attempt to answer because there’s too much to deal with.

Economic desperation leaves many open to his lies. But they cannot put a populist program together on the back of a divided America. They cannot get government to work on behalf of all the people, not just the super rich, by dividing over skin color, national origin and gender.

The Constitution, the Declaration, the Founders’ legacy, are in trouble when despondent and demoralized people lose faith in self-government. When democracy is in trouble, everyone is in trouble because dictators don’t take care of their people – they take care of themselves.

These same patterns have brought democracy down in many parts of the globe. But for Mr. Trump, we’re all losers and our democracy is a loser too. For Trump, only Trump counts.

— This commentary was broadcast on WAMC Northeast Report, October 25, 2016.


Democratic Decay

October 10, 2016

I wish it weren’t so, but the anti-democratic elements in this US election, and the Trump campaign, are making the dangers identified in my book seem like a near-term prediction – the well-justified revolt of the economically forgotten leading them to trust a bankrupt businessman and TV star who recycles empty promises, stereotypes and prejudices to gain their votes, the courting of the gun-toters coupled with thinly veiled threats and violence, the racist and male-chauvinist language, religious bigotry and xenophobia proposals, a candidate clearly out of control by the party he nominally represents, a demagogue repeating empty slogans until they start to seem believable, are all dangerous. Worse it seems to be a world-wide trend, Tom Gerald Daly, Time to View Democratic Decay as a Unified Research Field?, Int’l J. Const. L. Blog, Sept. 30, 2016, at: http://www.iconnectblog.com/2016/09/time-to-view-democratic-decay-as-a-unified-research-field. This clearly needs to stop.


Democracy and Compromise

September 13, 2016

Since Obama’s election, congressional Republicans and their Tea Party challengers made Obama’s defeat their overriding goal, and when they couldn’t do that, they did everything they could to make him seem like a total failure, an example of politics gone completely awry. To accomplish those goals, they refused to give him any victories – not on infrastructure, not on economic stimulus, not on judicial nominations and they tried to retract his success with the Affordable Care Act under a Democratic Congress.

The Republican decision that nothing could go forward without support of a majority of the Republicans in each house of Congress gave power to a majority of their caucus but a minority of Americans. Had dissenting Republicans been able to vote their conscience, some real negotiation would have been possible. The harsh stance driven by the Tea Party was a form of power play by a determined minority that got its hands on a way to block the congressional majority from even bringing bills to the floor.  It was not a prelude to negotiation and it was not an example of democracy at work.

On the other side of the political spectrum, many Sanders supporters argued that they could take nothing less than Sanders or a third party – even if it made a Trump victory more likely.

In this era of my-way-or-the-highway politics, it needs to be explained why democracy is and should be about compromise.

If a majority can do anything, or a majority of representatives, can do whatever they wish, then one portion of the population can be left with virtually nothing. That may be majority rule. But it has nothing to do with fairness or equality. Democracy gets its moral authority from taking everyone’s interests and needs into account. We routinely talk about the combination of majority rule and minority rights. Merely giving the majority the power to exercise power over everyone else is a definition of tyranny, not democracy. Where bargaining is possible, even small or unpopular groups can get some recognition of their needs. Where bargaining is possible, even permanent minorities can get some modicum of decent treatment. Without bargaining, permanent minorities can be stripped of virtually everything. Bargaining gives some meaning to the ideal of equality. The willingness to work things out has always been one of the things that had made America a leader of the free world.

The Founders of this country tried to force some degree of compromise by the different ways they constructed the Senate and the House of Representatives. Before the Civil War the struggle to reach compromises was all about slavery and freedom, the rare area where compromise ultimately became as impossible as it was immoral. After the war, a spirit of compromise reemerged so that America could deal with conflicts between rural and urban areas and other issues.

Sometimes compromise works better than others. Some of us remember within our own lifetimes when absolutely nothing could be done if it included any benefits for African-Americans, and the use of the filibuster to prevent any breach in the wall of segregation.

Many astute observers of democratic government point out that the system works best and most fairly when the needs of different groups of people overlap – disagreeing on some, agreeing on others. That gives groups an incentive to bargain so that everybody gets a fair shake. Even so-called nonnegotiable demands can sometimes be balanced against other similarly important demands of other groups.

Civil war becomes more likely when democracy becomes a contest over nonnegotiable demands that are beyond any form of bargaining. Democracy does not have to be a zero-sum game, where some win the brass ring and the rest merely polish the brass.

Americans need to relearn the art of compromise. Our democracy and our country will be better for it.

— This commentary was broadcast on WAMC Northeast Report, September 13, 2016.

 


Iftar

June 28, 2016

This is Ramadan, the Muslim holy month of fasting. We were invited to Albany’s City Hall for an Iftar, the evening feast after the sun-up to sun-down fast. Meetings aren’t polls and people put their best feet forward at public events. But I also know these folks. We greeted friends: a physicist, President of a Mosque on Central Avenue; an engineer who escaped repression in Iran, and ran a radio program to celebrate and protect American freedoms. We greeted a doctor whose daughter was my student and valedictorian at Albany Law, now working for the NY Attorney General. There were scientists, programmers, medical professionals, Sunni and Shi’a, Muslim, Protestant and Catholic clerics and public officials.

One woman described her six year old daughter lying awake at night, terrified, crying and asking where they’ll go if they are kicked out of this country – mother and daughter were born in the U.S., raised in this area, and have no other homeland. Her mother spoke with the girl’s first grade teacher, and the two women shared their tears – this wasn’t schoolyard bullying; the girl had been terrified by what she was hearing over the air.

Speaker after speaker rose to describe how lucky they were to reach America, how grateful they felt for the welcome they received and the chance to rebuild their lives. They celebrated America’s protection for people of all faiths, from all parts of the world, and their own determination to protect that freedom for everyone. Muslim clerics speaking to fellow Muslims, rejoiced in what America offered and encouraged them to do what they could to protect those values for all. Others spoke about the need to remember the blessings of America in times which are quite worrisome for Muslim men, women and children, and to do their best to protect America and its liberties.

Some had made the greatest sacrifice. The Muslim woman I described a moment ago explained that an older brother, also Muslim, had enlisted in the U.S. Army right after 9/11 to defend this country – serving our country which was also his, her brother was killed in action in Afghanistan. To her and to all of us he was one of the heroes of this conflict. Stereotypes must not obscure the contributions of real and good people. It was important to her, and should be important to us, to recognize the sacrifice that her brother and other Muslims have made to protect American freedoms.

Sitting there I realized I was watching the way the best of American values are renewed, revived and passed on as they have been for centuries. Sometimes we Americans show surprisingly little confidence in the strength of our ideals to flower in the hearts of immigrants. That, after all, is why they came.

Mayor Sheehan delivered a warm welcome and later pointed out to some of us that Muslims had been part of Albany since the city’s Dutch beginnings. In fact many of America’s founders made it clear that Muslims, along with Jews, deists, Protestants and Catholics were all included in the Constitution’s protections, and some took steps to make sure that Muslims and immigrants from all continents would feel welcome to come to America.

Every community has bad apples. But the bad apples in non-Muslim communities have been responsible for the vast majority of murder, arson and domestic terrorism in America. Stereotyping hasn’t protected us. Reaching out and welcoming these new Americans is much healthier.

Like many of us, immigrants and their children try to preserve the good parts of their heritage. But they came from war zones. Many risked their lives to escape. They have the strongest reasons to love and celebrate America, because they know what was in store for them or their parents in the lands of their ancestors. They’re trying hard to be helpful and constructive. It’s important that the rest of us recognize that.

— This commentary was broadcast on WAMC Northeast Report, June 28, 2016.


Political Correctness

December 15, 2015

I want to address one of the issues coming out of recent events on college campuses, not to mention the rhetoric of Mr. Trump.

Frankly, I’m fed up with the attack on what the right wing calls political correctness. Apparently some think the condemnation of racism in our social interactions is merely political correctness. It should be open season on everyone. Of course that’s a two-way street. I can think of all sorts of epithets and insulting language to hurl at people who would protect nothing but their own right to trash everyone they dislike. That of course describes Congress – the wraps are off all forms of battle. There are no rules in a knife fight as a legal scholar once titled an article. Apparently civility is the enemy.

I think of politeness as normal and proper behavior in a democratic or any society. People were civil to me in Iran regardless of their reactions to my nationality or religion. But some denounce the very idea of civility, of being polite. Civility and politeness are essential to democracy because we have to live together. They are essential to democracy because we have to work across disagreements to get even the things we all agree on done. They are essential to democracy because if we make each other the enemy we are headed toward the breakdown of all democratic institutions, starting, as the Rehnquist Court made clear, with vote counting. Polite behavior toward each other is essential because without it we are headed toward violence.

I did not grow up with prejudice against Blacks but I did grow up with plenty of other instinctive prejudices that I did not investigate because they seemed so ordinary. Nevertheless I did not go around hurling epithets at people. I eventually learned to bury those prejudices, at least those of which I am aware, and to fight against the mistreatment of those selfsame people by our government and society. But being polite was always a different issue. It was about the respect that we are bound to show all people in a democratic society.

As you all know, I teach law. And I have often taught practice skills, interviewing, litigation, trial practice. I do not teach people to walk up to the jury box and ask a juror why we should want an ethnic, racial, or religious so-and-so like you to sit in the jury box. I do teach my students that talking with people or interviewing witnesses or clients requires respectful listening and showing some understanding of what they are trying to tell you regardless of what you may think of them. That’s necessary to get the job done.

When the people become the issue instead of their behavior, politics becomes particularly dangerous. When politics is no longer about issues but about people, it’s not just whether they lose a political debate; it’s that people stand to lose everything, to lose the protection of the laws. And by the same token the oppressors become the proper subject of the laws.

From the behavior of the right, or wrong, wing, I question whether they believe in democracy, and therefore whether, by their defense of political incorrectness they, the wrong wing, are entitled to respect. Makes me want to solve our political problems by just giving Texas back to Mexico.

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

 


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).


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).


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