George Washington and the Pretender of Mar o Lago

Having just celebrated Independence Day, the birthday of our country, it’s worth looking at a letter from GEORGE WASHINGTON, long celebrated as the Father of Our Country, to the Marquis de LA FAYETTE who had crossed the ocean to help the Revolutionary cause. Washington wrote him from his home in Mount Vernon, on April 28^th, 1788, a few months after the Constitutional Convention, over which Washington presided. Here is what Washington wrote:

“Guarded so effectually as the proposed Constitution is, in respect to the prevention of bribery and undue influence in the choice of President …. There cannot, in my judgment, be the least danger that the President will by any practicable intrigue ever be able to continue himself one moment in office, much less perpetuate himself in it – but in the last stage of corrupted morals and political depravity: and even then there is as much danger that any other species of domination would prevail.  Though, when a people shall have become incapable of governing themselves and fit for a master, it is of little consequence from what quarter he comes.”

George must be turning over in his grave. The emoluments clauses were among those measures designed to “prevent[] bribery and undue influence.” Some of this country’s most eminent constitutional scholars challenged Trump’s violations of the emoluments clause in order to prevent him from taking bribes. The courts threw their challenges out. Mr. Trump did indeed “intrigue … to continue himself … in office.” We have been seeing what Washington described as “corrupted morals and political depravity” – a substantial portion of the Republican Party trying to undo the election, deny the results and re-install Trump in office.

Though a clear majority of the public voted against Trump and denies any validity to his claims, a significant portion of the public still supports the pretender of Mar o Lago. And the mathematics of the caucus system in the Senate and the primary election system in the states magnifies the power of the minority that would overturn the election. So we are not only seeing what Washington described as “corrupted morals and political depravity,” but a significant minority of the American public “have become incapable of governing themselves and fit for a master.” In size, it is not greatly different from the minority of the German population that supported Hitler. The difference has been the disloyalty of Chancellor Hindenburg in Germany versus the principled defense of democratic government by those in control in this country.

I don’t make that comparison lightly; the numbers are too close for comfort. And what is even more upsetting, is that a significant portion of the minority, who would overturn American majority rule and the rules of American democratic self-government, relishes that comparison – white supremacists on both sides of the Atlantic who will stop at nothing to retain power. Apparently they have nothing more to be proud of than the color of their skin, and no better arguments than violence, intimidation and murder. They are a disgrace to our ancestors and a threat to our country.

Ultimately a constitution is only as good as the people who make it work. Real Americans must fend off this disgrace and bring our country back to its senses.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on July 6, 2021.

Uncle Joe or Donald the Bully

Do you feel safer with Uncle Joe or mad Donald the bully? That’s not a close choice. Donald calls for support from the Klan, the Proud Boys, Nazis, white supremacists, and invites them to bring guns to the polls to intimidate the rest of us and heaven knows what else – steal the ballots? That’s not a world that you and I can be safe in. It beggars all the policy issues because it promises active hostility toward many of us with all the lethal power of government.

Defeating the bully in the White House isn’t all many of us want from elections. We want environmental action, reforms to bring police and prosecutors under control, nominations to bring the courts back to the side of justice after the Roberts Court gave the green light to all the abuses that squelched the Black vote in many states, tax policy that makes sense so that you and I don’t pay more taxes than billionaires like Donald Trump (who claims to be a billionaire) or Warren Buffet. Buffet had the grace to object.

Joe won’t get me all I want, though it isn’t clear anyone could. I’ve been working for equal rights since I graduated from law school, walked into the office of the NAACP in New York City and worked as a full-time, unpaid volunteer on their legal staff. Joe wasn’t my candidate in the primaries but the American people weren’t ready for her, which means we have work to do. That’s about building support within the party and the public, not about tearing the house down around us. Go for it in the primaries. Educate. Explain. Build. But in the general election, building for the future requires grace, teamwork and joining with other party members in expressions of mutual respect.

We could ask for purity if we had a parliamentary system in which minority voices get represented, not superseded by compromise candidates. But we have a presidential system and we have a person in the White House who is making clear the danger of a presidential system because of the way it can, in times like this, concentrate power.

Our system takes account of minorities in different ways. Some of us explained polarized voting to the courts. Voting is polarized when voters categorically shun candidates who take account of minority needs. Merely caring about a minority is too much. The minority is left with zero influence on the political system. Every harm done to minorities is applauded, leading to the most hateful policies. That, thank God, is not our system. When we were able to prove polarized voting, we often got courts to redesign voting districts so that minorities could elect candidates and get into legislatures. We are not in heaven and we have made mistakes but, yes, we’ve made progress.

I respect Alexandria Ocasio-Cortez and Bernie Sanders and others like them but they are supporting Joe. There is no path to success by way of Donald Trump.

Obama never got a free hand. Trump does because of the Nazis, the Proud Boys, the white supremacists, on groundwork laid by Gingrich and the Tea Party. No movement that could consistently defeat opposition candidates in primaries has taken over the Democrats. So Democratic leaders have to function as coalition builders. Build and prepare to flex our muscle in primaries. But electing the bully will cut off our democratic alternatives. He and his supporters have no respect for democracy and will do their best to close it off. They want to rule like slave-owners and tyrants.

Parties respect and cater to people they can get to the polls. Sitting elections out doesn’t convey protest. Politicians read it as no-shows, apathy, lack of interest, as people they don’t need to worry about. Let me make the point another way – the alt-wrong is terrified we’ll elect Biden and depose Trump. There’s a reason for that.

Against a New Constitutional Convention for New York State

In a week, we will be voting to decide whether to call a constitutional convention for the State of New York. The powers of the Convention would be wide open. Before going further, it is important to look at the provisions for calling the Convention:

in case a majority of the electors voting thereon shall decide in favor of a convention … the electors of every senate district of the state … shall elect three delegates at the next … general election, and the electors of the state voting at the same election shall elect fifteen delegates-at-large.

Let me repeat one crucial phrase, “the electors of every senate district of the state.” The New York Senate as we all know has been gerrymandered for many years to maximize Republican control of the Senate. Although the increasingly blue hue of our state politics has forced them into coalition with the so-called Independent Democrats, the NY Senate remains much more conservative than the Assembly, and not fairly representative of the people of the State. Everyone should be represented. Everyone’s ideas count. But everyone should be represented fairly and their ideas should be considered by a body that represents us fairly. Since the Convention would be shaped only by senatorial districts plus a few delegates chosen at large, I would not be willing to trust our future as a state to such a body.

You may have repeatedly heard me talk about gerrymandering. Many of us who have been fighting gerrymandering for years have continued to fight it regardless of who is the temporary beneficiary. Republicans should not have to accept a convention gerrymandered toward Democrats any more than Democrats should have to accept a convention gerrymandered toward Republicans, as it is now. Frankly, that alone determines my vote. End gerrymandering first and than we can talk about constitutional change.

The current New York State Constitution was adopted in 1938. In other words it was adoped near the end of the Great Depression. As such it had important provisions with the great mass of us in mind, not just the one-tenth of one percent who often think everything should favor them. That too makes it important to protect this Constitution. Of course it is not perfect. And when we get rid of gerrymandering, we may be able to fix it. But now losing this Constitution would be too dangerous.

Moreover, much that is wrong with this Constitution has nothing to do with its language and everything to do with the interpretation of the Courts. Just as I would not jettison the U.S. Constitution because of Scalia’s misreadings, so I would not jettison the 1938 New York Constitution because the courts screwed it up.

To the extent that some people believe some provisions could be improved, it would be sufficient to propose those specific improvements to the people of this state without using them as a Trojan Horse to threaten the entire document.

If any more reasons are needed, there is no reason to believe the delegates will be a step up from the legislature which already has the power to propose amendments. And I would be much more comfortable if the powers of any convention elected to revise the Constitution were limited to matters carefully defined in advance so that we could know how large a threat they pose.

I believe the people of this state would be wiser, safer and better off voting no.

— This commentary was broadcast on WAMC Northeast Report, October 31, 2017.

The Value of Democracy

Driven by the Tea Party, Republicans gave us a Congress that hasn’t been able to get much done. Saying less government is better, they take credit for getting nothing done, and leave immigration, tax policy, and health care to fester. It took the Democrats to make a deal with Trump to open the spigot even on hurricane relief.

Republican scorched earth policy is scariest for the lesson we take from it. For some of us the lesson is partisan – the other party must be defeated, fast. But for some Americans the lesson is that democracy doesn’t work, isn’t worth standing up for, honoring and protecting.

Many Americans have seen nothing but gridlock. Unlike the ways the parties worked from the 30s through the 80s, we’ve been dominated by gridlock since the mid-90s, especially when Republicans controlled Congress and Democrats were in the White House. Newt Gingrich and then the Tea Party made gridlock both their goal and tactic – if government can’t get anything done, then there is less government, never mind all the things for which we depend on government.

Republicans literally shut the government down under Clinton, only to discover that the American people didn’t like it because, from fixing potholes to carrying the mail, from sending out Social Security checks to keeping the skies safe to fly, government does lots of things we depend on.

By the mathematical logic of a majority of a majority, a minority in Congress could rule the Republican caucus and that caucus could stop everything so long as they agreed to stick together. So that minority of Congress gives us gridlock. We often talk about minority rights. But we are experiencing something else, not democracy, but it’s opposite, rule by minorities.

Elsewhere, dissatisfaction with democracy paves the way for dictatorship, in places like Syria, Iraq, and much of the Middle East and Eastern Europe. What replaces democracy is not some kinder, gentler, godly leader but kleptocracy, the rule of thieves, taking as much as possible from everyone to fatten their own pockets. Want to start a business, give the tyrant a cut. Want to export or import, the tyrant gets a cut. Courts aren’t in the business of dispensing justice; they’re in the business of looking at who is higher in the hierarchy. That’s why the flow of refugees isn’t from democracy to tyranny, but from dictatorships to freedom and democracy.

Democracy has a key secret. We can argue about who was wrong about Vietnam, Iraq, Obamacare, whatever – the people make painful mistakes – but a democratic people have the ability to vote the bastards out. Generally that gets the people better results than passing the reigns to dictators who can twist everything for their own benefit while sneezing at the people’s misfortune.

Democracy is not to be sneezed at. It is the singular American contribution to this world and we must protect it from foreign powers and political bosses who would control the people by gerrymandering, manipulating the census, keeping people from the polls or not counting their votes, We must protect it from fraud, from lying to the public, and from autocrats who claim they can fix everything if we’d just let them do whatever they want, autocrats who would have us end up like Venezuela under Maduro, Turkey under Erdogan, or like Hungary, Syria or Iraq and from so-called leaders who claim the rules don’t apply to them. We must protect it for ourselves.

— This commentary was broadcast on WAMC Northeast Report, September 12, 2017.

 

Can American Democracy Survive Trump?

Will democracy in America survive?

First remember that democracy matters. No human institutions are perfect but democracy makes it possible to remove officials without going to war. Democracy doesn’t mean anyone alone can make good things happen. Democracy reflects the collective power of people. Collectively, if the rules are followed that protect speakers, publishers, candidates and fair elections, democracy gives us the possibility – though nothing is certain – of throwing the bastards out. That’s important.

The survival of democracy depends on leaders, institutions, and the circumstances that bring out the best and worst in us. What chance do we have?

We should have been warned when Trump repeatedly expressed admiration for dictators in Russia, the Near East and Eastern Europe, when Trump invited an enemy to break into a candidate’s email and interfere in an American election, and suggested his supporters use their “Second Amendment rights” to put him into power. We should have been warned when Trump put people with strong ties to hostile powers at the top of his Administration and gave them access to American military and intelligence secrets. We should have been warned when Trump put an attorney hostile to justice in charge of the Justice Department and installed many military leaders in his government. We can’t rely on this casino mogul turned would-be strongman to preserve American democratic government.

It’s unclear whether our institutions will protect us. The Turkish military protected Turkish democracy for a century, but that tradition is now gone. Members of Trump’s party control both houses of Congress where their commitment to their party compromises their commitment to democracy. Congress seems unlikely to protect us. The Court is dominated by members of the President’s party and their treatment of the Constitution’s due process clauses has been more a threat to decent citizens than a limitation on the powers of would-be dictators.

The circumstances in which we find ourselves have ripped democracies apart across the globe. The concentration of wealth and power we have long seen and condemned abroad has become a reality here. The more that wealth and power are concentrated, the more that the wealthy and powerful circle their wagons to protect their ill-gotten gains against the rest of us, spewing nonsense about supposed trickle-down economics as if it were fact and counting on people’s gullibility. Concentration also makes people desperate, and desperation fuels the mirage of lies and makes too many of us complicit in our own subjugation.

Without reason to rely on the leaders, institutions, or circumstances, that leaves us. Can we square our shoulders and steady our minds to resist the steady babble of nonsense and not just listen to the words but watch what those in power are doing?

When you look at behavior instead of giving a pass to the mogul in the White House, you begin to notice that his actions belie his words. He has no sympathy for coal miners or others who have been shunted aside by changes in the economy but only to protect his friends’ wealth and power from us. Birnie put his finger on the problem and Trump now aggravates the concentration of wealth and power that are taking apart the lives we thought we’d built. So-called “free markets” protect the marketeers. So-called “trickle down economics” protect the concentrations from which the trickles are supposed to flow. And the flood of inconsistent tweets boggle the mind and conceal the reality.

Can we uncover the deceptions with strong minds and clear eyes while the casino mogul in the White House gambles our birthright.

— This commentary was broadcast on WAMC Northeast Report, June 13, 2017.

Democracy and Compromise

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.