Our Human Constitution

July 13, 2020

Recently I spoke with a class of high school girls. They asked me to talk about the Constitution and we agreed I’d talk about how we interpret it. I wasn’t advocating any particular method. In fact, I referred to the late Justice John Paul Stevens, adopting an observation by the then sitting president of the Israeli Supreme Court, that a judge does best who “’seek[s] guidance from every reliable source.’”[1]

While talking with the girls, I finally realized how to encapsulate what I wanted to say: The Constitution is a human document, written by human beings for use by human beings. It is not self-executing. There’s nothing automatic about checks and balances. They work when people believe in and use them. They don’t work when people in power care only about favoring themselves and their friends.

That’s not a flaw in the document. There are flaws in the document. It still bears the marks of slavery  ̶  numerous clauses were designed to protect slave-owners even though the word slave does not appear. And it was written by men for men in 1787. But the men who wrote the Constitution referred to its prohibitions as “parchment barriers.” Parchment was an older form of fine paper, often used for formal documents. The Founders clearly understood that the document they wrote and ratified would prove as good as the people running it.

I didn’t draw conclusions for the girls, but I want to spell out some implications for you:

  • When the president thinks he is an elected king and should control all the levers of government without being questioned or restrained and when a majority of Senators believe they should protect him, they’re simply making the Constitution irrelevant. The Constitution doesn’t protect the president or the senators; they do it for themselves.
  • When the president is more intent on encouraging us to fight among ourselves over the color of our states and our skins than to work together for the good of the country, the Constitution hasn’t failed us. We’ve failed it.
  • When the president turns us from leader of the free world to its laughing stock, the Constitution hasn’t failed us. He has.
  • When the president encourages the most selfish among us to sacrifice the air, land, water and climate that sustain us, the Constitution hasn’t failed us. He has.
  • When the president dithers for months after being warned of a coming health catastrophe, the Constitution hasn’t failed us. He has.
  • In the days before we had antibiotics and other drugs, quarantines were the principle way that our governments tried to protect us from infectious diseases. When people carry weapons into the state Capital and threaten state governors over quarantines,[2] the Constitution hasn’t failed us. They have.

The Constitution is a parchment barrier. We have to do more than protect the document. We have to use it wisely.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on July 14, 2020.

[1] Judicial Discretion 62 (Y. Kaufmann transl. 1989).@ BedRoc Ltd., LLC v. United States, 541 U.S. 176, 192 (2004) (Stevens, J., dissenting).

[2] See https://www.businessinsider.com/michigan-open-carry-laws-legal-protesters-guns-at-state-capitol-2020-5 and https://www.newsweek.com/michigan-closes-down-capitol-face-death-threats-armed-protesters-against-gov-whitmer-1504241.


The Case for Black Reparations

July 6, 2020

Many years ago, one of my professors at law school, Boris Bittker, wrote a book called The Case for Black Reparations. Bittker was known mostly for his work on taxation, but he cared and wrote a great deal about race. One year at Reunions, he took my wife and me to see a pair of very interesting films about the confinement of Japanese-Americans on the West Coast in internment camps during World War II, and the experience of Japanese-Americans in Hawaii, many of whom served in the American military. Bittker’s book on black reparations went through the issues in a very lawyerly way as if he were arguing to a court. But let me describe it on a very human level.

First the white slavers stole the freedom of Africans. Then they stole many of their lives, and, of those who survived, they stole the fruits of Black labor. When finally, the slaves were legally freed, White Supremacists stole it all again: the lives of African-Americans by lynching, their labors by a century of intimidation that virtually re-enslaved them. And when finally they found places where they could prosper, White Supremacists, many in the white robes of Klansmen, burned those places to the ground – the Black Wall Street in Tulsa,  Rosewood in FL;  changed election results by murder in places like Colfax County, Louisiana,  and Wilmington, North Carolina; and went on murderous rampages in a number of northern cities.  When whites made programs that helped build white wealth – like Social Security and Unemployment Insurance – jobs held by Blacks were excluded by statute. When Blacks sought good jobs, discrimination shut them out. When segregation finally became illegal, African-Americans had to start again on the ground floor of white men’s businesses, where once again they were given little for their effort – how many times do Trump and his white supremacist supporters insist on making their own wealth by stealing the labors of African-Americans?

And when they engage in peaceful protest, they’re told it’s unseemly behavior. Heaven forbid a Black man take a knee, or complain that Black Lives Matter. We aren’t supposed to focus on righting the wrongs to our African-American friends, colleagues, clients, customers and citizens.

So yes, there’s a strong case for reparations. I understand we’re not equally responsible nor equally beneficiaries of the wrongs done. But we Americans quite ordinarily help each other when we can. And, anyway, that’s a problem for the tax code – if the rich make the poor pay for reparations, it will be just as unfair as everything else the rich make others pay for. It matters how it’s done.

I have, however, one reservation. The most important thing that we can do for our African-American brothers and sisters is to secure their safety. We’ve all been talking about that nonstop for quite a while as each new case surfaces of African-Americans viciously and needlessly killed.  I’ve been commenting about that for years and have worked to fight it in the courts. I’m not sure what road gets there first, so that my friends, colleagues and former clients can enjoy their lives, family, property and careers in safety. That will take more than money. It will take effort and commitment to turn so-called law enforcement around so that it enforces the law for the benefit of everyone, including people of color. Few things would give me greater joy or peace of mind than to be able to share this life in peace and justice with all of you.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on July 7, 2020.

 


Heaven in Hawaii

November 11, 2019

We were out of town most of last month and the trip back took three separate flights, all the hassle of traveling by plane, and more than 24 hours from leaving my wife’s cousin to walking into our front door. We’re still recovering from the time difference, the lack of sleep and the heat wave in heaven.

Yes, I’ve been to heaven and back and made interesting discoveries. First, some locals call it HaVaii – no W in the sound. In heaven, there are people from all over the world, down under and up top, east and west, all the continents and colors, many of whom speak six languages and everybody smiles. Yes it’s possible to pull a muscle even in heaven but when I fell two men rushed to help me – one had ancestors in Africa, the other in Europe – and both were lovely, wonderful men, determined to get me back on my feet.

Strange things happen in heaven. Mark Twain thought it very strange that human beings assume that everyone will play the harp in heaven though most wouldn’t be caught near one on earth. Perhaps equally strange, my wife got me into the ocean. I hadn’t done that in decades since our children were small. I had good memories of the Atlantic near West Palm but I forgot about the surf in Jones Beach and it played with me like I was a toy. When my wife tried to help me, it knocked us both down.  One more thing an aging reader and sitter like me has to relearn – how to face the ocean, stare it down and charge.

Life is so different in Hawaii from the constant patter from Washington about race, color, ancestry and who the heck is better than everybody else. Hawaii is proof that life can be lovely. Except that so many people, and worse, builders and hotel magnates, have made that discovery that they have changed the climate. One of our taxi drivers told us how lovely the climate was on the hill behind Honolulu. And my wife remembered it from a trip half a century ago – though we were clearly a couple by then we came home from Iran at different times and by different routes so I missed seeing Hawaii before there were clouds in heaven.

A photo of my wife was taken in D.C. with a frame that said “citizen of the world.” That is what peace means – that we are citizens of the world and recognize the same in others, treating others, all others, like we ourselves would like to be treated, the Golden Rule, or loving our neighbors as ourselves, another biblical formulation.

I’ve had that pleasure before – on the mall in Washington the day Martin Luther King told us about his dream, or in the offices of the NAACP or the legal services program, in the company of many of this area’s great folk singers, former Peace Corps Volunteers, or sometimes just on the streets of New York where people have learned to live and love together, and among other dear family, friends, colleagues and neighbors – I’ve been lucky enough to live and work largely in supportive environments. It’s a wonderful feeling, to see the love without having to watch your back. It spells peace in many languages, and heaven too.

Even heaven isn’t perfect. There are justified complaints about the way those with native Hawaiian ancestry have been dispossessed of some of what should be theirs but it’s still a joy to see the way people live and work together. On the way out, I had a chance to interview two African-American women who’ve been working there, one a military officer, and they confirmed the rewarding pleasures of living and working with people there.

There’s so much more to enjoy in the islands than beaches and breezes, luaus and leis. You’ll find great examples there of the spirit that made America great.

  • This commentary was broadcast on Nov. 5, 2019, on WAMC/Northeast Public Radio

Take America Back

March 18, 2019

It is painful to see the forces of hate killing men, women and children on many continents and here in many states, in schools and public places, taking apart the work of what we have been honoring as the greatest American generation who spilt their blood for the America they loved. It is painful and frightening to see the effort of the alt-Wrong to rip apart the free world that this country took the lead in creating. It’s painful to see terrorists crediting an American president as their inspiration for murder.

When I was a small boy, American men were fighting, and dying, in the Pacific, Africa, Italy and, after the landing in Normandy, through France and Germany. They were struggling for freedom, democracy and brotherhood. As the war ended, Truman sent Franklin Roosevelt’s widow, Eleanor Roosevelt, to the UN. Truman sent her there to make clear to the world the depth of America’s commitment to building a robust and sustainable free world. She chaired the seventeen-­member UN Commission on Human Rights and led that body in the development of the UN Universal Declaration of Human Rights. You could have drawn much of it from our own Constitution. These were American ideals on the world stage.

In 1948, the Supreme Court under Chief Justice Vinson held racially restrictive covenants unconstitutional. Then in 1952 the NAACP brought five cases to the Supreme Court challenging segregation and seeking to overrule Plessy v. Ferguson, the case that had upheld segregation in 1896. The Truman Administration told the Court that the US was being attacked around the globe because of segregation and that segregation complicated American foreign policy. Obviously important, the case was reargued after President Eisenhower took office and Chief Justice Vinson had died. Eisenhower’s Justice Department submitted its own brief to the Court, and it underscored the arguments of the Truman Administration that this country needed to end segregation. The Supreme Court agreed; in Brown and a series of cases it made clear that American government could make no distinction of race, creed or heritage in its treatment of Americans.

Americans cheered Brown and made clear it was a popular decision. We believed what they said in the Declaration, that “all men are created equal.” Americans fought a Civil War over that principle. By the time of Brown, this country had embraced people like Jesse Owens, Marion Anderson, and Ralph Bunche among many others. With some obvious and vocal exceptions, Americans embraced the end of segregation. That is the America embraced the world over, admired for its principles and its heart. That is the America that took all of us to its heart regardless of which country our ancestors came from, which faith they brought. That is the country that our ancestors embraced with both love and pride, the America they wanted to be part of and contribute to. That is the America they wanted for us. That is the America we need to take back.

An America with neither mind nor heart clearly needs a trip to see a Wizard of Oz. An America with a man in a position of power who gloats that “I could stand in the middle of Fifth Avenue and shoot somebody” with impunity is an America which actually does need to deport someone, and to wall out the orange-haired imposter before he corrupts our genetic inheritance.

— A version of this commentary was broadcast on WAMC Northeast Report, March 19, 2019.


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


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.

 


Threats to Democracy – The Shadow Knows How to Divide and Conquer

January 16, 2018

Right after Trump won, a cousin offered to send me some anti-Hillary literature that she thought I’d find convincing. I responded that if Hillary had won, she and I would be safe. But Trump’s victory emboldened those who would be perfectly happy exercising what Trump euphemistically called their Second Amendment rights, getting rid of people who don’t fit their racial and religious criteria. They were already on the streets. That left neither of us safe.

Nor is the problem just what some of his supporters believe and do. His campaign and rhetoric were about who should not be here. He continually appeals to his most extreme supporters, people who barely conceal their admiration for Hitler.

Many of us have been talking about how polarized our politics have become. Polarized politics is dangerous because it is a predicate for autocracy. If people become convinced that they can’t live with the other side’s victory, that life is too dangerous, democracy becomes unsustainable. When a live and let live attitude is gone, democracy can’t be trusted.

Trump can’t be trusted. Trump stands for exactly the kind of politics that makes democracy feel more dangerous than valuable. During the campaign, he told his supporters to express their “second Amendment rights” at the polls, sending chills down the spines of loyal Americans. When neo-Fascists showed up to demonstrate in Charlottesville fully armed to sow fear and intimidation, and one of their sympathizers murdered a peaceful and unarmed woman in the crowd, Trump blamed their opponents for the carnage. To Trump and his white supremacist supporters, evil is racial – Hispanic, immigrant, Puerto Rican, or Muslim, Blacks, Jews, minorities and women. When he tried to export his racist friends to the Brits, they told him to stay out of Britain. Bless the Brits. They get what this country used to stand for – we are [quote] “one nation … indivisible, with liberty and justice for all.” Liberty and democracy are “indivisible”; they are and must be for ALL.

A descent into racism, Nazi or otherwise, would not make America great again. It would destroy our country. One of the things I found fascinating in the papers of the UN Commission on Human Rights which produced the UN Declaration of Human Rights, was that human rights was not an American idea foisted on the world. Hatred of the Nazis came from across the globe, all continents, all its peoples. What they saw, regardless of economic or political system or religious or ethnic heritage was that the Nazis were a threat to everyone. All countries worked with the single-minded goal that there should be no more Hitlers, no more Nazi control of any country. The world had defeated the Nazis and they weren’t about to have to do it again.

Trump doesn’t get or care that democracy depends on our agreement that all Americans are legitimate Americans, all Americans need to be respected and cared about, and all Americans need to feel safe here, or he is wielding the demonization of some of us precisely to end self-government.

When I was a kid, there was a radio program that some of you will remember. It’s tag line, voiced by actor Frank Readick Jr., was “what evil lurks in the hearts of men, the Shadow knows.” I make no claim to knowing what evil does or doesn’t lurk in the heart of Trump. But threatening America from the inside, he is the biggest threat to the survival of America since our Civil War.

— This commentary was broadcast on WAMC Northeast Report, January 16, 2018.

 

 


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.


Blame the Supreme Court for America’s sharp political divide

August 24, 2017

August 24, 2017

In the 19th century the Supreme Court set the stage for a century of murder, intimidation and voter suppression in the southern states by nearly obliterating the application of constitutional rights to state behavior, In the 20th century, the Court’s nationalization of constitutional rights long met liberal dreams. The Court now seems poised to use the national application of constitutional rights language to satisfy conservative dreams. Both ways close the states’ rights escape valve and therefore magnify the contentiousness of national politics. And all of those choices have enormous moral costs. I elaborate on TheHill.com, at Blame the Supreme Court for America’s sharp political divide.

Happy reading, Steve


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.


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