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.


Cops, Blacks, Presidents and Stereotypes

June 2, 2020

After practicing law, it’s hard to stick to stereotypes about people, whether the police, the looters, whites, presidents or anyone else. Lawyers see the best and the worst, Mother Teresa and Jack the Ripper. The good and bad aren’t predictable.

We have lots of stereotypes about African-Americans. I’ve worked in and for the Black community but I’ve never met the stereotype. Instead I’ve gotten to know a lot of wonderful people at all levels of American society.

Police? Actually I think the police are like rest of us in all other walks of life, comprised of everyone from the best to the worst. We stereotype the police. Since they’re brave, we stereotype them all as good people. Americans don’t like to call people they despise brave, but if risking death is brave, the cops share that honor with lots of the people they pursue – gangsters, gang members and terrorists. So it’s pretty obvious that I don’t see the connection between bravery and decency. There are police who heroically track down dangerous people and rescue the innocent. But there are other police convicted of everything from fraud to the murder of women and children as well as unarmed and peaceful African-Americans.

Presidents? It had to happen that we would have one who’d try to preserve his power against the wishes of the American people. He fans the flames and encourages chaos so that he can gather the military and pretend to put out fires that he fanned, using the military against domestic dissent. He stripped many of the finest military men from command to quote “work” in his White House, and when they discovered they could not behave intelligently and patriotically they resigned. Monkeying with military leadership is dangerous. And Trump is using his die-hard armed supporters with their “Second Amendment rights” as Storm Troopers in disguise. It couldn’t be clearer that he wants to become dictator. That’s the route they take – encourage violence, create chaos and then pose as the savior.

The men who created our country knew that power corrupts. They made no assumptions but tried to create checks and balances to counter against the certainty that it would happen. They didn’t figure out how to control the Senate before it made a mockery of the impeachment process. Yes, he’s guilty of lying and a cover-up, but no matter, that’s not serious enough. Is abandoning world leadership to the Russians and Chinese disloyal enough? Is a daily string of lying to the American people and making up fake quote “facts” serious enough? Is threatening insurrection with what he refers to as “Second Amendment rights” serious enough? Is there a Second Amendment right to storm state houses and threaten governors with their weapons? Is that serious enough? Is trying to poison Americans with fake so-called “cures” serious enough? Is the slaughter of a hundred thousand Americans because he dithered in dealing with disease serious enough?

Yes, along with decent and heroic officers, there are some who are intoxicated by the power of their weapons, corrupted by their stereotypes of African-Americans, and protected by a culture of silence and solidarity. But their faults are encouraged by a pretender in the White House for whom nothing is too much to keep him in power.


Hitler’s Acolyte – Trump’s Dangerous Motives

October 8, 2019

I spoke last week about the importance of the whistle-blower’s complaint. It’s also the tip of the iceberg. Burt Neuborne was ACLU legal director and a founder of NYU’s Brennan Center.  I’ve known Burt for decades. His publisher accurately describes him as a leading constitutional lawyer who’s sued every president since LBJ.

His new book raises very serious concerns about Trump’s dictatorial intentions. As Burt notes, we’ve known since 1990 that Donald Trump kept a copy of Hitler’s collected speeches by his bed and studied them carefully.

For those born later, Adolf Hitler initiated World War II and the extermination camps that were responsible for the deaths of seventy to eighty-five million people, from all continents. More than a million American soldiers were killed or wounded. That’s Trump’s idol.

Burt goes further, comparing the themes that both Hitler and Trump emphasized. Whatever else he hasn’t figured out, or doesn’t care about, Trump has been a good student of Hitler’s.

There isn’t time to lay them all out. Like Trump, Hitler fired his supporters up with racial and religious hatred, extreme nationalism, closing borders, mass detention and deportation. Almost every word from Trump is about hostility based on race, religion, national origin, closing the southern border and extreme nationalism, stirring a recipe for violence.

Hitler and Trump insulated themselves from criticism by denying the press any credibility and found ways to reach the public without going through the media. Reporters spend their days interviewing people, checking documents, records and participants in the news. Trump simply calls everything fake, and attacks the media in its entirety, though he’s obviously the biggest liar among us. Everything he says is reduced to single adjectives – fake, terrific, good, bad, etc. – without evidence or explanation while denying the obvious. Unhinging his audience from the work of everyone else means he can speak without fear that contrary argument will reach his audience’s ears, until truth becomes meaningless.

Both Hitler and Trump cemented their rule by enriching the wealthiest, giving them outrageous gains, tax cuts, and exemptions from rules meant to protect the public from death, destruction and deceit.

Both thumbed their noses at democratic, judicial and legislative processes and powers. In other words Trump cares only about himself and his ability to become a dictator in the style of his idols. Encouraging people to use what he labels their “Second Amendment rights” in politics is what Hitler did with his Brown Shirts, substituting the nozzle of their guns for ballots and elections. That’s the path to hell but it is a path, with the trappings of dictatorship, that looks good to Trump.

I’ve hesitated to call for impeachment because my priority is to oust Trump from office, however possible, before he can get further with his obvious desire for unchecked power.

That said, Trump’s refusal to obey constitutional limitations on using his office for personal gain, and to abide by statutes and congressional subpoenas, are clear indications of his thirst for power and disrespect of the work of the American Founders, the Constitution, its meaning, original or otherwise, and the system of checks and balances set up to control people like Trump. The emoluments clause was intended to limit opportunities for presidential disloyalty to America. But rather than make America great again Trump is intent on destroying America for personal gain, the ultimate form of disloyalty.

He must be removed from office.


Can American Democracy Survive Trump?

June 13, 2017

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.


War and the Separation of Powers

September 10, 2013

In 1950 Harry Truman sent troops to Korea without consulting Congress. Republican criticism did not withstand American hostility to Communism and American nostalgia for give ‘em hell Harry. It became a precedent. Read the rest of this entry »


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