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.

The Bully in the Debate

September 20, 2016

People keep saying that Hilary will destroy Donald in debate. But I’m concerned. I’m bothered by the memory of one exchange between Bush and Gore in one of the presidential debates in 2000. When Gore confronted Bush with the math behind Bush’s tax proposals, Bush just responded by calling Gore’s figures “fuzzy math.” In fact, Gore’s numbers weren’t fuzzy – he had laid it right out for all to see. I concluded that Bush was trying to bully Gore and the American people by substituting insult for fact. But people reacted that Gore was a nerd and Bush would be nice to have a beer with. I think that was unfortunate largely because, as president, Bush took us into the war in Iraq with what I believe were disastrous results. This isn’t the place to refight the issues of the Bush presidency. The real problem is that Trump has never shown any dedication either to the facts or to policy detail and many Americans have shown an appetite for unsupported slogans and invective. So I’m concerned that he may try to bully Hilary in the debates and concerned about how Americans will react.

We’re not perfect and it’s clear that some of us like bullies. The big question is whether that’s just a few or a lot. We know that some people think it’s perfectly appropriate to win their disputes by brandishing their “Second Amendment” powers; that some still spank their wives and girlfriends and put them through hell so the almighty men can get what they want. We know that some people still behave as if rape is just the assertion of their own “authority,” and as if it’s perfectly appropriate to belittle women, gays, Blacks, browns, immigrants, or people who grew up in different religious traditions. Some still think it’s OK to get what they want by denying other people access to the vote, running them out of town, throwing Blacks and browns into prison, or shooting and killing young men out of fear for their skin color, scared that they meant ill by walking home. We have laws against schoolyard bullies but some adults act like them. Some people are bullies and some people like bullies.

Donald with his bullying jabs is clearly after their votes. He wants the votes of people who put others down like he does because of the color of their skin or put people down like he does because their parents brought them to America from somewhere else. He reminds people they might solve problems with their Second Amendment rights because he wants the votes of bullies who intimidate people with their Second Amendment rights.

The question that will be settled by the debates is not just how Trump will, or can, behave, but what proportion of us  are or admire bullies, what proportion of us are prepared to admire Trump supporters like leaders of the Ku Klux Klan because they appear strong, and what proportion of Americans respect careful, thoughtful and considerate behavior.

Make no mistake, this is a battle for the soul of America. Who stands for decency and who standards for hate, who stands for considerate behavior and who admires the bullies of this world?

— This commentary was broadcast on WAMC Northeast Report, September 20, 2106.

Trump’s Audience

August 23, 2016

Behind Trump’s remarks and his imperviousness to criticism is the audience he’s after.

Trump charges that this election is rigged because his audience doesn’t like who can vote. One can respond that elections have been rigged by the Court since it stopped the count in Florida to make Bush president, but that misses Trump’s and his audience’s objection. The Court has unleashed the full contents of corporate treasuries, tightened the screws on union finances, encouraged states to exclude African-Americans from the voting booths and supported gerrymandering so that Republican controlled legislatures could rig elections against Democrats. Those decisions rigged the election in Trump’s favor. But for his audience, rigging the election means including what some still call Fourteenth Amendment citizens. They object that the first sentence of the Fourteenth Amendment makes everyone born here citizens, especially Blacks and browns.

Trump’s inconsistency on foreign policy is also because of the audience he wants. While claiming Democrats are weak on foreign threats, Trump also wants to withdraw from NATO which has held the Russians at bay for over half a century. And he has told us that he would consider not coming to the aid of an attacked NATO member. Never mind speculating whether he’s a wimp, a loudmouth, or a Russian agent. The important question is who’s his audience and why? Actually extremists have imagined international conspiracies that only they can believe in. Trump clearly wants their support. That leaves the rest of us wondering whether they would be center stage if he won. Making international conspiracies the number one villain helps explain Trump’s admiration for Vladimir Putin, and his invitation to Russia to hack into the computers used by a Secretary of State. One points out in vain that’s an invitation to foreign espionage. Trump got his message across; he’s with the fringe, the conspiracy theorists, and the people with lots of hate.

Then there’s Trump’s comment that Second Amendment people might have a way of dealing with Hilary and her judicial nominees if she is elected. When questioned about those remarks Trump responded that he was just kidding. Besides, he said maybe. No advocacy there. He wasn’t trying to get anyone killed. But why did he do that?

Politicians have reasons for what they say. He was seeking support from precisely those people who could imagine using guns that way. Surely some would just like to have violent dreams. But some are more likely to act on dreams like that when encouraged by people like Trump, and will understand his words as a call to violent action, action that undermines democratic self government.

Beyond whether Trump should be expected to talk like a responsible adult, is the question whether we have the responsibility, whatever our politics, not to enjoy such language, responsibility not to reward it, but to stand tall for the real America, the America that claims to believe in law and order and in self government that celebrates our ability to disagree without threats, assaults and murder.

Trump makes statements like that because he has an audience for it. If most of that audience has the maturity and the loyalty it claims, it must be prepared to turn against candidates who misuse it. Supporters of gun rights must believe that gun owners have an obligation to act and speak responsibly and to keep political and racial hatreds away from trigger fingers.

— This commentary was broadcast on WAMC Northeast Report, August 21, 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.


I don’t get it

November 11, 2014

I don’t get it. Political scientists tell us that the advantage of democracy is that the elected officials have to act for the benefit of most of the people. And if they don’t, they lose.

So the Republican Administration of George Bush delivered war, torture and economic disaster – and the Republicans then lost the White House. But then the Republicans calculated that if they could prevent Obama from delivering any benefits, they could take over. They went on the campaign trail saying that Obama failed because he hadn’t forced them to pass what he wanted, and at the same time telling the public that he had done a great deal of damage by doing everything he wanted to do. Never mind the contradiction.

But lots of people seem to have bought it. So how’s democracy supposed to work?

All over the political spectrum people seem to be voting against their own interests, convinced by nonsense that what hurts, helps them. Hard-working people who don’t make a lot of money vote for tax breaks for the wealthiest Americans. Businessmen vote against investment in critical infrastructure they use daily.

The electoral process looks tribal to me. Science, expertise, experience, all get reinterpreted by who’s who supporting what. If Princeton economists support policies that help the poor, then those policies must be bad and must not support “me” – because my interests differ from the interests of the poor. Remember I’m middle-class. I couldn’t share the interests of the poor. Increase in the minimum wage? Forget it; I’m on salary. By the way who’d you say buys my stuff? Couldn’t be we’re all in this together!

Well most of us. See “I’m” on the side of the billionaires, even though they make infinitely more than me and won’t share a penny – that’s why they pay for so many lobbyists to squeeze the last penny out of the government, and stiff me all the way. That isn’t supposed to happen in a democracy.

Except that the plutocrats – ok that’s the old name – the super-rich, the 1/10 of 1%, or fewer, the oligarchs – cut the bottom out of the voting booths by making it harder and more expensive to vote, and by splashing money at the media and the commentators ‘til it sticks or just confuses people so they stay home – so our oligarchs can control the political system for themselves.

Will the people fight back? The damage is all over the legal spectrum. Patent and copyright law? Forget the artists and inventors. Minimum wages? Forget the workers. Infrastructure? Forget the people who drive or ride – the super-rich fly private jets or live abroad. Forget the small business that benefits from infrastructure – the super-rich got their breaks for businesses so big they don’t need to worry about regular folk – they own the markets. Taxes – guess who gets tax relief while the rest of us are left with the bill while the super-rich make noise about deficits? Wonder why we have those!

Are we letting democracy sink that low? Sounds like the dictator’s game – shrink the electorate and lavish huge benefits on your supporters.

— This commentary was broadcast on WAMC Northeast Report, November 11, 2014.

Management and Politics

November 4, 2014

Whenever something goes wrong, politicians demand someone get fired. If the Democrats are in charge the Republicans demand someone get fired and vice versa. There’s an Ebola outbreak in Africa and one person treated in a Texas hospital died, so fire the head of the national Center for Disease Control in Atlanta![1] Ambassador Stevens was killed in Benghazi so it must have been Clinton’s fault.[2] It’s easy to strike a pose of moral outrage, blame and action – fire so and so; it was on her watch. But then what? Read the rest of this entry »

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