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.

 


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.


How Can We Protect American Workers

March 11, 2017

Trump’s power, and his policies on jobs, immigrants, religious and ethnic hatreds and the Alt-wrong are all related.

Scholars of intolerance tell us that threat breeds hate. I suspect that all we can say about why immigrants and Muslims are really good people only makes those who feel threatened feel more threatened, because instead of talking about their needs we’re praising someone else.

So I want to talk about the needs of Americans who feel threatened economically and what can be done regarding their economic losses, recognizing that the disfunction in American politics is partly due to the desperation of workers who’ve lost once good jobs.

Protecting American workers is crucial both because people suffer when they can’t find good jobs, and because desperate or threatened people take dangerous risks at the polls and elsewhere. We must protect workers both for their sakes and for ours; it’s much the same thing.

It’s our job because government fiscal, tax, programmatic and other policy decisions daily determine how many jobs there are. Some people can make their own opportunities, but, to be fair, most good, decent, hard-working people can’t.

What can we do about it? Sometimes it helps just to set out the options. Here are the choices I can see:

FDR created unemployment compensation and Nixon proposed a negative income tax – safety-net approaches based on direct income transfers. Many object, including those who benefit from handouts, tax loopholes, deductions, farm price supports, subsidies etc. – the tax code and the budget are replete with them. But direct financial transfers are one possibility.

A second approach is to pay for jobs indirectly through trade policies. All three presidential candidates talked about that. I understand the fear of foreign competition even though there are reasons to look for other solutions for American workers: limiting foreign imports hides the cost in the price of things we buy, and isolates the American economy from developments elsewhere. It also might not work; actual hiring decisions would rest on other people’s decisions. But we can’t overcome the fear if we can’t commit to other steps, and all the talk about the risk to Social Security fans that fear.

A third approach, the conservative free market approach, is not really a solution for the working person at all – it simply puts the monkey on workers’ backs to find jobs or starve.

A fourth approach is to create new jobs by government action – fiscal stimulus, infrastructure development, and investment in science and education, all of which call for construction, maintenance and technical jobs. That’s what Obama called for but Congress drastically whittled his effort down.

Why can’t government be employer of last resort? That would automatically support a minimum wage, create better communities, and make life better for all of us. It’s not the free lunch some people worry about; it’s a job. What’s so terrible about giving people what Tom Paxton called “a job of work to do”? There’s plenty to do if we were willing to invest in our people, our workers, our infrastructure, and our environment. Sometimes spending a little can make the community more attractive and the economy zing while providing a decent income to people who need a job.

Some countries use all of those methods and have quite robust economies.

Those are the alternatives I can see: the free marketeers’ defining it away as the workers’ problem, the safety net approach of income transfers, paying indirectly through trade policies or subsidies for the appearance of helping workers, or creating jobs through fiscal stimulus or hiring people to do needed work. My preference is to put people to work – that way protecting others is good for us all. One way or the other, standing up for each other is essential.

— This commentary was broadcast on WAMC Northeast Report, March 7, 2017.


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).


Is Democracy in America Coming Apart?

December 6, 2016

I wrote Unfit for Democracy to warn that American democracy could collapse in coming decades. But the problems are coming home to roost sooner than I expected.

How the economy treats people matters. That was the starting point for my work and, since World War II, for political scientists studying the survival or breakdown of democracy. But the American economy has been leaving lots of people behind. In my book I argued that the Supreme Court was diluting the value of ordinary Americans’ economic rights in favor of the wealthiest people and corporations. I feared the danger to democracy as people became more and more desperate.

I also worried the Court wasn’t enforcing the Bill of Rights for ordinary people and feared would-be dictators could take advantage of it. And I worried because the Court permitted politicians to fix the voting mechanisms to make fair elections almost impossible.  Changes made after the 2010 census allowed Republican-dominated legislatures to lock Democrats out of Congress and the majority of state legislatures for the foreseeable future. That Court-sanctioned gerrymandering now blocks fair representation in Congress and in many states. Trump kept claiming that the system was fixed, implying that it was fixed against him, but the Court allowed the Republican Party to block access to the polls in many states.[1] The election was partly fixed, in favor of the Republicans and Mr. Trump.

I also worried that legal changes underlying changes in the media and the primary systems were contributing to the polarization of America. As Jim Hightower once titled a book,  There’s Nothing in the Middle of the Road but Yellow Stripes and Dead Armadillos. I thought that was dangerous.[2]

Now we are finding out that only a quarter of Americans still believe that it is important to live in a democracy. And we’ve elected a president who befriends autocrats – autocrats who destroyed democratic governments, censored the press, put opponents in prison, and took over.

Once that happens, the people who wanted to break the system down have no voice in what the new system does. Autocrats around the globe become kleptocrats – they steal from everyone for themselves and their friends. In commentary earlier this year I described that as the Sheriff of Nottingham syndrome – the sheriff from the Robin Hood legend who took from the poor to fill the pockets of King John. Corruption in democracies doesn’t hold a candle to what autocrats do to their people financially, how opportunities suddenly depend on the dictators’ favor, how freedom disappears, real freedom, the freedom to walk around out of prison and take care of one’s family. Those folks who were so ready to break the system are likely to be among the first broken by it.

The Court won’t protect us. Those with power have no motive to protect us, but only to keep their own advantages. The rich will have more, not less control. Just look around at how Trump is deepening the threats:

  • His worldwide set of conflicts of interest become opportunities for Trump enterprises in the pattern of third-world kleptocracies;
  • He proposes to cut benefits for ordinary Americans, leaving more for himself and friends;
  • He selects America’s wealthiest to run our economy;
  • He rants about asserting “Second Amendment rights” at the polls as if menacing people at polling places advances democracy;
  • He rants about throwing people in jail – starting with his political opponent – though that threatens democratic competition;
  • He seems to think that winning means he can do whatever he wants.
  • And he and the Republicans seem to believe recounts are legitimate only for themselves – not to protect and enforce the voters’ choices.

If American democracy collapses, it will be the biggest victory for the world’s worst people. As Trump pounds on the pillars of democracy, we will have to do all we can to preserve the American democratic way of life.

[1] Unfit for Democracy, at 195-204.

[2] Id.  at 153-67; Law and the Polarization of American Politics, 25 GEORGIA STATE L. REV. 339 (2008).

— This commentary was broadcast on WAMC Northeast Report, December 5, 2016.

 


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