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Stephen E. Gottlieb
March 22, 2011: Vietnam, Afghanistan, Pakistan and Iraq
A no-fly zone in Libya seems right to me though we already know that some will use it for renewed anti-American rhetoric. To maximize the good will and minimize the risks, we will need to get out quickly.
Responding to 9/11 against the Taliban seemed necessary. But we don't seem to know how to get out. Getting into Iraq was clearly a mistake, but there too we seem pinned down, hardly able to disengage.
Part of our problem is the lingering dispute over Vietnam. I presume lots of you were hawks at the time and lots were doves. I don't know what would have happened if we'd poured more resources into that war. But some issues are clearer.
We were afraid that free states in southeast Asia would fall like dominoes if Vietnam fell to the North Vietnamese. Of course that didn't happen. We were afraid the North Vietnamese would destabilize the region. Instead they helped stop the killing fields in Cambodia. And Vietnam is now an active U.S. trading partner. They spent some thirty years after World War II fighting for their independence. Now they have a seat at the international table. And it's OK.
So despite the costs of war, which are enormous, the stakes of war are sometimes very small.
Afghanistan and Iraq are not Vietnam. We can't know whether they will look for a constructive relationship like Vietnam, or continue fighting like Hezbollah and Hamas. But the news is grim in Afghanistan. The Pakistani Army had treated the Taliban as a client. Now the client is biting back. Democratically elected leaders in Pakistan are being murdered. The fighting threatens to tear Pakistan apart from the inside.
We've already invested a decade of American treasure our soldiers, men and women killed, blown to bits, condemned to live with nightmares, flashbacks and anguish or had their families come apart because of the stress. Back home we fight each other over the crumbs left under the table by the enormous financial cost of the Afghan and Iraq wars.
We've inflicted a lot of damage for the grief they caused us on 9/11. But our continued fighting is not sending a message about how powerful we are; it's not sending a message about how much we benefit them; it's not sending a warning to the Taliban or al Qaeda.
Sometimes total victory even if it is attainable is not nearly worth the cost.
In World War II, virtually our entire country mobilized to fight. Quite properly neither Bush nor Obama has demanded that toward Iraq and Afghanistan. But we are pinned down, hindered in dealing with crises emerging while the great U.S. power looks the other way.
Americans have to stop assuming that no task is too big. That's nonsense no matter how powerful one is. We have other chores to do, other fences to mend and dykes to build tasks now too big because we're investing everything in two wars that won't be won. Even if we pacify those countries, the damage to the regions will also be at our expense.
It's time to get out. Time to stop the killing. Time to stop eating each other with recriminations over budgets that were driven by those wars. Time to show the strength and the maturity to gauge realistically what we can do and stop trying to act as if we alone of human societies don't understand limits.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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March 16, 2011: Directing Anger Where it Belongs
Let's separate the wheat from the chaff. Lots of Americans are angry. The tea party is angry about taxes and spending. Workers are angry about not having jobs or prospects. The middle-class is angry about getting squeezed. And they are all right to be angry. It doesn't follow though that the anger is directed at the causes of their problems. So let's sort it out.
When we add Social Security, income, property and other local taxes, most of us pay about 40%. But the wealthiest are paying less than 20. If all the wealthy can afford is 20%, then perforce that's all the rest of us can afford. And that's what the Tea Partiers seem to be saying. Everybody wants the tax rates the wealthy get. In fact the extraordinarily wealthy patrons who are funding the Tea Party want to pay even less.
The code is replete with all sorts of special provisions, tax breaks for this or that industry or investor, billions of dollars in subsidies to agribusiness for products that do more harm than good, billions more to make it cheaper for companies to hire foreign workers abroad than American workers here, while some of the largest corporations with billions in revenue pay less than five percent and some get more in tax credits than they owe no wonder the rest of us are complaining.
So get the government out of the tax subsidy business. Don't subsidize agribusiness, oil, ethanol, or off shore tax shelters. Eliminate all the special provisions from the code and let everyone stand on their own two economic feet without government tax code handouts. That would instantly mean that everyone from mega-corporations and billionaires to Americans who work with their hands and their backs would pay their fair share.
The second part of the problem is spending. The tea party leadership is scaring us with deficits. That is very misleading. Any decent economist will explain to you that what we should do in a recession is spend as if we had full employment that's the way to bring the economy back, and when the economy comes back the tax load gets back into adjustment. That's the benefit of a better economy. But cuts on the scale necessary to give us a balanced budget in the middle of a recession really are scary and will beggar us all.
The tea party leadership also claims that government is bad, that everything government touches turns bad. Given that most businesses fail, there is as much evidence that whatever private industry touches turns bad or needs careful regulation so that we are not swindled, injured or duped. That some programs are bad doesn't mean that all programs are bad. That some people and companies get deals they don't deserve doesn't mean that rebuilding roads, bridges, research facilities and public health systems are bad, or that we shouldn't built a better electric grid, a more robust and distributed internet or the infrastructure we will need to protect our environment from global warming.
Some projects are too big for private industry to do without government building the essential infrastructure and creating the demand. That's why government built the banking system in the eighteenth century, canals and railroads in the nineteenth, and the highway system and the internet in the twentieth just to name a few.
So yes, there's a lot to be angry about especially the way that some people are misleading a lot of Americans with bogus complaints as an excuse to get even larger breaks for themselves.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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February 22, 2011: Directing Anger Where it Belongs
Let's separate the wheat from the chaff. Lots of Americans are angry. The tea party is angry about taxes and spending. Workers are angry about not having jobs or prospects. The middle-class is angry about getting squeezed. And they are all right to be angry. It doesn't follow though that the anger is directed at the causes of their problems. So let's sort it out.
When we add Social Security, income, property and other local taxes, most of us pay about 40%. But the wealthiest are paying less than 20. If all the wealthy can afford is 20%, then perforce that's all the rest of us can afford. And that's what the Tea Partiers seem to be saying. Everybody wants the tax rates the wealthy get. In fact the extraordinarily wealthy patrons who are funding the Tea Party want to pay even less.
The code is replete with all sorts of special provisions, tax breaks for this or that industry or investor, billions of dollars in subsidies to agribusiness for products that do more harm than good, billions more to make it cheaper for companies to hire foreign workers abroad than American workers here, while some of the largest corporations with billions in revenue pay less than five percent and some get more in tax credits than they owe no wonder the rest of us are complaining.
So get the government out of the tax subsidy business. Don't subsidize agribusiness, oil, ethanol, or off shore tax shelters. Eliminate all the special provisions from the code and let everyone stand on their own two economic feet without government tax code handouts. That would instantly mean that everyone from mega-corporations and billionaires to Americans who work with their hands and their backs would pay their fair share.
The second part of the problem is spending. The tea party leadership is scaring us with deficits. That is very misleading. Any decent economist will explain to you that what we should do in a recession is spend as if we had full employment that's the way to bring the economy back, and when the economy comes back the tax load gets back into adjustment. That's the benefit of a better economy. But cuts on the scale necessary to give us a balanced budget in the middle of a recession really are scary and will beggar us all.
The tea party leadership also claims that government is bad, that everything government touches turns bad. Given that most businesses fail, there is as much evidence that whatever private industry touches turns bad or needs careful regulation so that we are not swindled, injured or duped. That some programs are bad doesn't mean that all programs are bad. That some people and companies get deals they don't deserve doesn't mean that rebuilding roads, bridges, research facilities and public health systems are bad, or that we shouldn't built a better electric grid, a more robust and distributed internet or the infrastructure we will need to protect our environment from global warming.
Some projects are too big for private industry to do without government building the essential infrastructure and creating the demand. That's why government built the banking system in the eighteenth century, canals and railroads in the nineteenth, and the highway system and the internet in the twentieth just to name a few.
So yes, there's a lot to be angry about especially the way that some people are misleading a lot of Americans with bogus complaints as an excuse to get even larger breaks for themselves.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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February 15, 2011: "So-called" Investment
After noting that China and India are "investing in research and new technologies," President Obama made investment a major theme of his State of the Union Address. The first Soviet space launch in the 50s spurred us to invest in research and education. Obama wants us to " invest in biomedical research, information technology, and especially clean energy technology an investment that will strengthen our security, protect our planet, and create countless new jobs for our people." Other countries, he added, are investing much more in infrastructure.
The appeal of that way of thinking obviously bothered Republicans. They clearly have a play-book. Obama's "investments" are Republicans' "so-called investments," repeated by Senators Hatch and McConnell, House Speaker John Boehner, Budget Chairman Ryan, Conference Chairman Hensarling, and Congressmen Paul and Hultgren, plus Fox hosts and analysts. They even snookered PBS and NBC reporters to use the phrase.
But just what does it mean to deride investments? It could mean they dislike these investments. But the Republican attack is broader: that we have no money and government always screws up investments. They want people to agree to leave everything to private industry.
Most on-going public investment is in dying industries, not emerging ones. That's not Democratic policy of course. The Republicans want to attack government investments they made in an effort to convince us Obama's proposals can't work. Do you detect a non sequitur there?
If the point is that no government investments are good, just what happened to our shared public investment in a public water supply, sewage system, public health laboratories, disease control centers and research facilities? Should we give it all back? Or the founders' public investment to get our banking system started and government investments from Jefferson's Administration to the present in the roads, bridges, canals, and railroads that helped build this country? All required government support. What's wrong now is that we aren't keeping them in repair. Better to use them til they collapse a few deaths on the highway won't cost the public much just a few poor souls who'll lose their loved ones. Sounds like the way we've treated our National Guard and many regular soldiers they volunteered so it's their problem to deal with injuries the US won't.
It also sounds like Republicans have gone bearish on America. Disinvestment is what we did to our inner cities: banks, with government complicity, redlined and refused to invest in African-American neighborhoods, so they inevitably declined. Disinvestment is an invitation to a wake.
Of course there are risks in investments. Private investors as well as public officials guess wrong. But this country was built on the spine of major public investment in our future. Many major corporations thrived because they convinced the government to back their investments from the telegraph to the telephone and beyond. Many other countries have figured out how to invest in the future. Only Republicans are afraid of our shadow, and lost the confidence that government of, by and for the people can work and lay the groundwork for a better future. Shame on them.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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February 8, 2011: A World on Fire
Congratulations to all of us on the success of the fund drive. We've all missed regular programming with so much happening, especially in Egypt, Yemen and Tunisia.
In 1793, Revolutionary France sent Edmund Genet as minister to the U.S. Finding the Washington Administration determined to remain neutral between England and France, Genet threatened to take his case to the American people. Americans were offended. We don't stand for foreign meddling in American politics.
It is a position we still uphold. Our laws forbid candidates from accepting funds from foreign sources. Many Americans don't notice the parallel when we try to influence the domestic politics of other countries. American or any foreign support is an embarrassment. It conflicts with national pride. Each nation needs to choose its leadership on patriotic grounds. Pleasing a foreign power seems almost treasonous. That's a universal reaction. Our good intentions don't overcome others' instinctive national pride.
The protests in Tunisia and Egypt bring to mind Amy Chua's fine book, WORLD ON FIRE. Chua showed that globalization and democratization could be on a collision course in much of the globe. Financial elites have diverted much of the benefit of globalization to themselves, leaving most people as poor as ever. Rising tides don't lift all boats when some can pay lobbyists in this country, bribes in other countries, or exert family influence to steer the contracts and the tax rules for their own benefit.
Too many leaders have done too little for their people and too much for themselves. It is easier for Americans to see that abroad than to recognize it here too. But it has been a nearly worldwide phenomenon. There are many here and abroad who should be cashiered.
So we, as citizens, must cheer the Egyptian and Tunisian people on. And support free and fair elections. But the risks in those two countries also reflect a deeper failure to respect their aspirations. U.S. support of their dictators severely tarnished America's reputation and the willingness of others to show us respect. Our government has put the financial interests of major international corporations (they're not even really American any more) above the interests of ordinary people, increasing popular frustration with values we proclaim. If American policy appears to drive poverty and repression, people will look elsewhere for models.
Egyptians and Tunisians will decide based on their national interest, not ours. The democratic principle we proclaim demands that we accept their choice. And we will pay the price of obvious hypocrisy if we refuse yet again.
Forbearance is a hard lesson for Americans to learn. Keeping our hands, and arms, to ourselves is a necessary lesson in the internal politics of other countries. Nationalistic reactions limit the ability of foreigners to predictably influence events. And a strong American presence will make us targets. Now that some of the most destructive weapons are becoming more available to many paramilitary groups, influence is not the same as protection.
Our respect for the democratic rights of other peoples meshes with our own self-interest. We need to stay out of other people's business. There are limits on what any nation can accomplish. Nations that ignore the limits squander their assets and soon lose their power.
While Americans and American support are often welcome, the most constructive thing America can do is to stop shipping arms to dictators, and stop assuming that we can interfere in the choices of other peoples. That applies to Egypt, Tunisia, Iraq and Afghanistan.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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January 25, 2011: Will America Lead?
With the just concluded meeting of President Obama with Chinese President Hu Jintao, it's worth thinking about the costs, and requirements of leadership.
Paul Kennedy, in his monumental Rise and Fall of the Great Powers, examined military conflict over the past five centuries. He demonstrated that national power was rooted in and preceded by the growth of the economy.
America has been a dominant world player for a long time but there is nothing automatic in strength or leadership. Our strength was not based on our genes which come from the same pools as everyone else.
- Our strength was partly based on the two oceans that long protected us from other world powers.
- Our strength was partly based on our creation of one of the largest unified markets in the world, a market that the EU now tries to emulate and only a few countries could exceed by virtue of their size.
- Our strength was partly based on our freedoms, and the ability of Americans to innovate.
- Our strength was also based on government investment, investment in our transportation, banking and educational systems, which began in the eighteenth century, investment in our public health system, beginning a century later, that rid the US of many diseases that have continued to scourge other countries, and investment in our people through measures like rural postal delivery and electrification, that put a floor of opportunity under most of America. Even the emergence of radio had a strong government stamp beginning during World War I.
- And yes, our strength was based partly on wise regulation and laws that made us accountable for our behavior, despite persistent efforts to get our legal system to look aside.
In many areas we were among the first. We improved our infrastructure before most countries did. Being among the first, means that our infrastructure is now among the oldest and least tailored to current needs. If you have been in the New York City subway system, you've seen those old mosaic, picture and artistic tiles on the subway walls that speak to the pride of the once new system. Now unless you stop to reflect on the that still vital subway system, you're likely to see a system that just looks old and often loses by comparison to subway systems encountered elsewhere.
There is a lesson here. It is that laurels are not good to rest on. For decades, America has been disinvesting in our infrastructure, letting roads, rails and bridges age and sometimes collapse. Collapsing infrastructure will not support our dreams of continued greatness. For too long Americans have been convinced that if it was good enough for our parents, it would be good enough for us. We have lost the national sense of progress through collective effort. We are coasting, but coasting we will come to a stop and watch enviously as other nations, China among them, rush past us.
World leaders do not simply cite past achievements, and they don't just pray for private investors to make the investments that the public needs. World leaders act. If we have lost the capacity for action, we have lost the will to lead. And there is no better time to start than when we need to put people back to work.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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December 21, 2010: Loyalty
I've suggested that liberals need ways to encapsulate what they are for. Previously I suggested we invest in America. Here's another theme we should strike loyalty. That's right loyalty.
Loyalty means conserving America. Teddy Roosevelt jump started the conservation movement, creating our first national parks. But instead of conserving America's land, soil, resources and rivers, government supports agricultural practices that erode the soil and send it into the Gulf and the oceans, along with pollutants that destroy the fishing grounds. There are plenty of ways to support farms and business that add lasting value to our country. Squandering our natural and economic resources is disloyal.
Loyalty means protecting each other. We spend billions to keep terrorists off planes but government supports a food supply chain that makes us sickly mountains of flesh and threatens our hearts and lungs. That's disloyal.
Loyalty means protecting our country. But failing to stop global warming quickly will submerge three American coasts, where most of our people live, and turn many fellow Americans into refugees. No help from the Republicans who want to make it all voluntary, which has meant minimal action and ever greater pollution and warming. That's disloyal.
Loyalty means giving support to our allies, not to our enemies. Supporting petroleum over alternative energy fattens the very regimes which have supported terrorists. Wiping out the balanced budget in the previous Administration put us in debt to our enemies. Giving tax breaks to the wealthy instead of rebuilding the American economy and infrastructure means sending capital abroad. That's disloyal.
Loyalty means making this world safer for America. Instead we've squandered our sons' and daughters' lives, our international good will and our world leadership to support the petroleum industry. We've sustained the terrorist recruiting effort with a foolish war in Iraq and made it harder to deal with the real challenges posed by Afghanistan, Iran and North Korea. Now we struggle to catch up as China threatens much of southern Asia.
Loyalty is not just tough talk, flexing muscles and brandishing weapons. There is no loyalty in deploying our troops on fools' errands or squandering our assets for the benefit of a few.
Loyalty means taking on the problems of the country, not standing by while millions are out of work through no fault of their own, while people are denied health care, while the innocent children of immigrants are denied an education, their parents abused out of fear of asking police for help, while women are brought here under false pretenses and turned into sex slaves, and while the vast majority of us work harder and harder so that the rich can have ever more lavish lives.
Disdain for each other isn't any form of love, "tough love" or otherwise. Loyalty is not abusing the political system in favor of minority rule and money over people.
Liberals understand loyalty to our country and to each other. This liberal proudly bleeds for those in need. And this liberal proudly stands for an America that can lead the world, not just bludgeon it. It's the only path to a bright American future.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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December 21, 2010: Loyalty
I've suggested that liberals need ways to encapsulate what they are for. Previously I suggested we invest in America. Here's another theme we should strike loyalty. That's right loyalty.
Loyalty means conserving America. Teddy Roosevelt jump started the conservation movement, creating our first national parks. But instead of conserving America's land, soil, resources and rivers, government supports agricultural practices that erode the soil and send it into the Gulf and the oceans, along with pollutants that destroy the fishing grounds. There are plenty of ways to support farms and business that add lasting value to our country. Squandering our natural and economic resources is disloyal.
Loyalty means protecting each other. We spend billions to keep terrorists off planes but government supports a food supply chain that makes us sickly mountains of flesh and threatens our hearts and lungs. That's disloyal.
Loyalty means protecting our country. But failing to stop global warming quickly will submerge three American coasts, where most of our people live, and turn many fellow Americans into refugees. No help from the Republicans who want to make it all voluntary, which has meant minimal action and ever greater pollution and warming. That's disloyal.
Loyalty means giving support to our allies, not to our enemies. Supporting petroleum over alternative energy fattens the very regimes which have supported terrorists. Wiping out the balanced budget in the previous Administration put us in debt to our enemies. Giving tax breaks to the wealthy instead of rebuilding the American economy and infrastructure means sending capital abroad. That's disloyal.
Loyalty means making this world safer for America. Instead we've squandered our sons' and daughters' lives, our international good will and our world leadership to support the petroleum industry. We've sustained the terrorist recruiting effort with a foolish war in Iraq and made it harder to deal with the real challenges posed by Afghanistan, Iran and North Korea. Now we struggle to catch up as China threatens much of southern Asia.
Loyalty is not just tough talk, flexing muscles and brandishing weapons. There is no loyalty in deploying our troops on fools' errands or squandering our assets for the benefit of a few.
Loyalty means taking on the problems of the country, not standing by while millions are out of work through no fault of their own, while people are denied health care, while the innocent children of immigrants are denied an education, their parents abused out of fear of asking police for help, while women are brought here under false pretenses and turned into sex slaves, and while the vast majority of us work harder and harder so that the rich can have ever more lavish lives.
Disdain for each other isn't any form of love, "tough love" or otherwise. Loyalty is not abusing the political system in favor of minority rule and money over people.
Liberals understand loyalty to our country and to each other. This liberal proudly bleeds for those in need. And this liberal proudly stands for an America that can lead the world, not just bludgeon it. It's the only path to a bright American future.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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November 30, 2010: Invest in America
Many of us share the feeling that the election was decided by slogans. But how could it be otherwise? A famous judge once wrote that he thought his vote unimportant because the issues were too complex even for him to decide intelligently. Understanding the issues takes considerable effort, even if following what's going on seems natural to many of us.
So there are really two possibilities. One is that most of us are attached to one or another world view and vote for candidates depending on who seems closer. And independents are people in between who are willing and able to follow in some detail and make intelligent choices. But much of the American public now treats the parties as a part of the problem rather than a part of the solution. That means that they are unattached. How else can a large part of the electorate be reached except with slogans? There is simply too much that one needs to know. That's unfortunate.
So think about this last election. You all know that I wanted much more support for the Obama Administration than the public showed. But what actually happened was the strength of democracy, rather than its weakness. Things were not going well. That much the people understood. The economic arguments are way beyond the knowledge base of most people to deal with. Even in the college educated portion of the public, few have studied economics and neither finance nor marketing are any substitute for studying macro-economics. And even for those who did, how many would have a basis to distinguish between the arguments of the Keynesians and the Chicago school? It certainly doesn't get any easier in foreign policy.
But what people can do in a democracy is demand results. They did. And at the national level, people like me lost.
We will have even less ability to shape events over the next two years than we had in the last. Which means the next two years will be about slogans. What folks like us need is a party that makes its positions clear, not buried in compromised complexity, and dares the other to filibuster. In other words, Harry Reid better show some guts.
I've actually been trying to develop some brief rallying cries that accurately reflect the liberal side of the national debate. Here's one:
Invest in America.
Invest in America because national decline doesn't advance freedom.
Invest in America because investment makes the economy grow everything else is iffy.
Invest in American infrastructure because clean food, clean air, clean water, clean elections and excellent schools make our lives richer, in resources, in health, in spirit and in business.
Invest in America, not in the illusion that people who are not investing in America now will come around if they only had more money.
Invest in America, not in the illusion that government merely stood by and watched the country grow when we know that Washington, Hamilton and the men who founded and built this country used the power of government to build the resources that America needed the canals, roads, railroads, schools and universities that became the backbone of American strength.
Invest in America; it's the soundest investment you can make.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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November 23, 2010: Show Trials and Real Trials
So a federal jury has acquitted an alleged terrorist of all but one count. And Republicans are screaming foul. We should try all alleged terrorists at Guantanamo in front of military commissions. Then they'd be convicted and we could all sleep at night.
From the criticism it seems that what's wrong with the American judicial system is that we don't do show trials. It's actually possible for an American judge or jury to conclude that the prosecutor got it wrong, that a defendant isn't guilty. It's actually possible in America that having the right to an attorney and a jury of one's peers can mean a just, fair and accurate decision.
Do terrorists deserve real trials. I was actually asked that on television. Surely terrorists are not entitled to real trials, lawyers, witnesses and the like. Lock em up. Except then, how do we know we got the right folk? That's what trials determine. How do we know that we haven't made things worse by locking up innocent people?
Of course there is a part of the world where they do show trials. The Soviet Union and Communist China were famous for show trials. The trial was the opportunity for Stalin and Mao to make an example of someone and scare everyone to death. The show trials helped to prop up the regime.
While in namby-pamby America we actually require proof, and test it with other witnesses and cross-examination and opportunity to subpoena evidence and we protect the independence of judges and juries. Somewhere in the world there are people who admire the fact that we hold real trials, where conviction means the jury was convinced. Somewhere in the world there are people who don't think it is coddling criminals to give them a real trial, not a show trial.
To attack the independence of the judiciary, to attack the judicial system because it strives to be careful, fair and accurate, is to attack the very foundations of freedom, as far too many people in this too often cruel world know all too well. The people who have no patience for justice are in fact the greatest threat to America, the most disloyal, far more dangerous than the immigrants they blame for everything.
We used to call communists with their show trials and totalitarian governments "reds" and conservatives slandered liberals as "pinkos." It's beginning to seem apropos that the networks called all the Bush states "red." Some of those who fly the Republican banner are beginning to seem more like pinkos all the time.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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November 16, 2010: Incentives
Have you heard that word "incentivizing"? I grew up saying encouraging. Either way everyone wants to incentivize. Or send messages. So someone else will do something maybe.
The Fed wants to incentivize or encourage everyone to spend money. I understand that for the Fed. That's all the power they have. They can't build anything. All they can do is manipulate the terms of trade with more or less money. Their job is to incentivize. We used to talk about how limited that was, and how the Fed could not deal with major economic problems because it doesn't have the tools. Seems like the rest of the tools have been locked in the shed and only the Fed is in running order. But all it can do is incentivize other people who just might do what they want.
Then there are the tax cut vultures. If we cut taxes, especially to people who have more money than they know what to do with, the theory is we will incentivize them to invest, and if it works, just maybe they'll invest in America, if they don't invest in China or somewhere else.
Whatever happened to good old American get up and go? Why are we all giving other people incentives to do things for us. Why don't we do things ourselves. Want investment? I'll show you some investments. Let's fix roads and bridges. Let's finish the updated water system. Let build a modern electrical grid. With solar power. Let's clean up the rivers and lakes. There's lots we can do to make a better America and update an outdated one.
But we're in a recession. Exactly. And we're spending money anyway to get other people to invest. We can spend the same money and get real value for it. We need investment. We need someone to spend the money. And we're spending it anyway wastefully. We can do it ourselves.
Ok you want business investment. Why do you think business would invest? Because there are people who want to buy their products. But that's not true until and unless we put money in the hands of people who might want to buy, and who have to buy locally.
And why should a business invest in one place or another. Everybody says "taxes" as if that's all a business manager cares about. But that's nonsense. They care about transportation. They care about the availability of all the services businesses depend on like power, reliable electricity, clean water, and plenty of all of them. They depend on a capable workforce and good places for people to live. They care about the quality of life. They care about the availability of expertise. Taxes? Just one piece of the equation. In fact a good case can be made that business does very well in many high tax states because they get all the other things they need and the very capable people who choose to live there.
We can build those things. We don't need to encourage anyone. We can do those things ourselves. Pull ourselves out of this recession and make the place more business friendly at the same time. Let's get going.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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November 9, 2010: Violent Videos
The Supreme Court heard argument in a case about a California statute banning violent video games. The law mimics almost precisely the way the Supreme Court requires that laws restricting obscenity be written: the banned acts have to be precisely described, appeal to base instincts, be patently offensive, and without any serious literary, artistic, political or scientific value. In other words, if it's worthless, it isn't speech and government can stop it.
The justices doubted whether they should prohibit another form of speech, and if they prohibited violent speech, what next? Those questions would apply equally to obscenity. But my question, and Justice Breyer's, is why we can ban pictures of naked people but not images of disgusting and worthless violence?
We commonly hear that obscenity and pornography are potentially harmful to women. Men who see it might do violent things to women. But the video games at issue do precisely that; they depict very violent behavior purely for the pain they cause. What's the point of saying that sex, which is legal, and sometimes blessed, is off limits so long as it isn't literary, but violence toward men, women, children or animals, which is illegal, and for which we put people in prison, is protected?
I once listened to an elderly women that I had long known describe to me and to her daughter her own sexual ignorance when she was married, and the pain that caused her. Some sex education would have been very helpful. I haven't heard anyone tell me they missed out on life because they hadn't seen films of people pouring gasoline on others and burning them to death.
I understand that people have dressed up their views of nudity and sex in religious garb. Yet any scripture that could be cited against sexual misbehavior also has plenty to say about misbegotten violence. There's a choice being made and I wouldn't blame it on God. The question for us is whether prudery is important more important than protecting people from the most obscene violence?
A portion of our country believes that exposing people to naked bodies or sexual behavior will ruin them for life and bring down the republic, but exposing them to violence and then handing them weapons just makes "men" out of boys. Actually, that is a much more direct threat to the republic.
Laws against porn, obscenity and violence are in tension with fundamental First Amendment principles both are designed to control people's minds, to make sure they think one way rather than the other. But it isn't any more problematic for violence. Of the two, violence seems much more dangerous to the social fabric.
If we really want to make "men" out of boys and "women" out of girls, I'd suggest national service would provide a much more valuable lesson in shared responsibility for all of us.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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November 2, 2010: Vote
I've been thinking about my retirement account. From the time George Bush entered the White my account has been flat even though my employer and I add to it every pay period.
When Obama entered the White House I decided I should put my resources into equities. Since at least the Great Depression in the 1930s, every time a Democrat entered the White House the market went up and stayed up. But every time a Republican entered the White House, the market tanked. So I figured I was ready for the good times.
Then after the first few months and a shrunken stimulus package, I watched the Republicans dig in and block every effort Obama made to try to dig us out of this recession. That left me concerned. I called one of the officers of my pension fund and had them switch my allocation toward fixed income securities and even, for the first time in my life, a money market fund because even though those things aren't expected to go up much, they aren't supposed to lose either. Yet the polls are telling us that Americans are about to reward the Republicans for obstructionist behavior designed to prevent Obama from being able to get this economy moving. That's patriotism for you.
The fact is that the Democrats have a basic understanding of what makes economies move. But all the Republicans offer is a basic understanding of how to reward their friends.
They argue that tax cuts will allow investment. But their "method" is indirect: give the money to their rich friends and those people, they hope, will invest it for us. That's indirect. And it leaks. Money in the hands of their friends goes to things that don't move the American economy. Some of it goes abroad, some goes to financial speculation. How much would go to investments in America is anybody's guess. Their friends haven't been seeing much reason to invest in America. But the Republicans don't care their friends will do fine investing in China.
But God forbid that Democrats want to make sure the money is spent in the good old U.S.A., on roads, bridges, or other infrastructure, that would be terrible. It would actually work. Republicans are terrified. That's big government. It might even be effective government, and that would be even worse. It might help to get us out of the recession and get the economy moving again. We can't have that. Better that the U.S. should rust and decay. After all, as long as their friends invest in China, they'll do fine. It's just that America won't. Who cares?
If the Republicans take over Congress and force the government to cut spending back, that will deepen the recession. But that would be OK because they'll lay the blame on Obama.
If a Republican Congress gets its tax cuts for the wealthiest, instead of domestic investment, and the funds leak out into investment in other countries and into unproductive speculation, there will be no boon to Americans who lost jobs due to the economic turndown. But that's OK because their friends will be OK.
If a Republican Congress cuts both spending and taxes, the economy will stagnate, tax collections will shrink, the deficit will grow, and the government of the people, by the people, and for the people will become ineffective and useless.
Some accomplishment. I think you should vote.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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October 26, 2010: Nanny State
The Tea Party and many Republicans object to what they call "the nanny state." Their image is of Americans who went out to the frontier, cut down trees and lived off the land, by gathering, farming, hunting, and taking care of themselves.
Such independence is impossible for the vast majority of us. We depend on employers for jobs and on investors to start new businesses even though most start-ups fail. One friend of ours left the country in embarrassment when she couldn't pay back the friends and relatives who had staked her business. No man or woman is an island. We need each other for the myriad tasks that modern living requires. But if everything we need becomes a wild west that requires maximum vigilance, little can happen. Countries without decent government services stagnate, or worse.
Our economy depends on our support for regulators who try to prevent wild swings and depressions. It's not a nanny state that protects us. It's an efficient, effective state.
Most of us are used to the fact that we don't, and can't, live independently, and seek instead a fair and efficient environment. Is it a nanny state that protects us from contaminated foods? The alternative is to let many people die. Checking the factories that prepare our food requires a common solution or it becomes much too expensive for any of us to handle.
Buy that information yourself? Consumers Union can check only a small fraction of what we consume. We could grow our own food only by sacrificing the benefits of an advanced economy while spending our time growing what we need. It's not a nanny state that protects us. It's an efficient, effective state.
Is it a nanny state that tries to protect us from global warming, foul air, dirty water, and unsanitary waste in the streets? Which of us has the resources to solve those problems for ourselves. Indeed economists of all stripes describe them as problems with fancy names external costs, free riders, coordination problems which mean it's profitable for people to do things which cause huge social problems as long as other people have to pay the costs. As a result economists agree that common, society wide solutions are essential. That's not liberal or conservative economics. It's fundamental. There are differences to be sure about the best ways to solve specific problems. But there is no solution without a political solution. It's not a nanny state that can protect us. It's an efficient, effective state.
Infant mortality is one of the best predictors of countries on the verge of revolution. The reason is clear. It is a symptom of a government that is failing to do its job. It's not a nanny state. It's not a plethora of regulation. It is failure to do the things that make life efficient and predictable, providing necessary infrastructure for commerce and for public health. Growth and progress depend on a base of predictability, health, property and opportunity. Those depend on government. It's not a nanny state that can protect us. It's an efficient, effective state.
American public investment in all the essentials for a healthy, wealthy and powerful country have been declining for decades. Don't be misled by nonsense. America needs us to go to the polls and reject those trying to take apart one of the most important American creations efficient, effective government.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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October 12, 2010: Deer in the headlights
For most of the past two years, we have had a President who has been trying to make changes and an opposition party that has been blocking everything, leveraging 40 votes with arcane senate rules to block the majority in both houses of Congress.
The country is in the worst economic crisis since the Great Depression. But the Party of No spurns efforts to bring us out of it.
One in seven Americans are now on food stamps and millions more rely on food pantries. But the Party of No says we=re spending too much on social programs. Everything costs too much except tax cuts.
People are being pushed out of their houses. But the Party of No spurns efforts to deal with abuses in the housing market. I suppose people can find cardboard for shelter.
It's getting toward winter. But helping fellow Americans isnt big on the Party of No agenda. I suppose people can burn the cardboard in trash barrels.
Pension plans and retirement savings are shrinking. But the Party of No wants to privatize Social Security so everyone can play economic roulette with their old age.
The number of people without health care rose substantially before the recent changes. But the Party of No objects to our putting all of us into the insurance system. People can die with dignity.
More people are living in poverty than at any time since 1994. But the Party of No spurns programs that would provide work for people to do. If people are desperate enough they=ll find something to do.
The Great Depression saw a serious increase in crime. But the Party of No spurns efforts to pull us out of this depression. Adversity is good for the soul.
The climate is getting harsher. But the Party of No resists effective measures to bring it under control. After all look how people helped each other after Katrina.
Global warming is making lands unfertile and helping diseases spread. But the Party of No belittles the problem. After all, global warming will be good for the chemical companies that make genetically modified seed, and the pharmaceutical companies that make pills. I suppose we should cheer global warming.
But the Party of No has a platform. They would like to bring back Herbert Hoover and the good old days when it was everyone for himself and we all starved together. Some platform. You can=t even burn the platform to stay warm.
Obama wants to invest in green technology. But the Party of No wants the Chinese to do it for us.
Obama wants to invest in roads, rails and bridges. But the Party of No wants to let our national patrimony crumble.
The Tea Party calls it freedom. Yes. The freedom to let our country decline.
Saying no to everything is like deer caught in the headlights they wont lead us to safety.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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September 28, 2010: Corruption, Bribes and Tax Cuts
What's the difference between graft, corruption, bribes and the Republican demand for tax cuts for the wealthiest people? The wealthiest folk already have more money than they know what to do with. That's why they are investing their money in bonds, money market funds, and treasury bonds. Essentially they are parking their money because investments don't look attractive. Why don't investments look attractive? Because they don't see enough BUYERS!
So the Republicans claim that they're demanding tax cuts for the wealthiest to stimulate the economy. But that is completely bogus. It's part payoff to their friends and part fig leaf for a completely unpatriotic effort to prevent the Obama Administration from digging us out of the depression.
Actually during the housing boom, the Bush Administration knew that tax cuts weren't doing anything valuable for the economy. It was all going into their mansions. But they hollered for tax cuts anyway. This is completely hypocritical and they should be plastered for it.
The Obama Administration not only has to fight the depression Bush left us with, it also has to fight obstructionists insisting on their handouts to wealthy friends, obstructionists playing guerilla tactics to prevent the economy from getting better.
The Roberts Court of course does its part to help. The decision to allow corporations to spend unlimited treasury funds in the elections licenses another form of this bribery. What's a few million in electioneering dollars if it is worth billions in changed regulations or blocked statutes that might protect people from poisonous and defective products, fraudulent sales pitches or environmental disasters. Yet that is the economics of corporate political ads. The people they support will owe them their elections and pay them back in regulations blocked and statutes rewritten. How about an $8 million investment in politics to save a $458 million timber subsidy nearly a 6,000% return! Or $1.2 million in campaign expenditures for a patent extension worth $1 billion, an 83000% return! The potential returns from politics are enormous. As shown by the two BILLION dollars the pharmaceutical industry spends on lobbying alone, followed by such industries as insurance, utilities, oil and gas, etc.
There is a reason why Warren Buffett told us that he pays less on his last dollar of income than his secretary. In fact she pays almost three times as much. And the people who made that possible owed it to the rich folk that had the clout, the money, to get the deductions Buffett's secretary and millions like her couldn't.
Of course getting all these paybacks from dollars spent on politics is perfectly legal. But morally and for the health of the American economy it's bribery payments made for favors the system should not be providing.
Frankly I'm tired of this unpatriotic political hypocrisy. The change we voted for in 2008 needs to be completed with a rout of the obstructionists in 2010.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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September 21, 2010: THE REST OF US
Congress passed unemployment relief this summer over sustained Republican objections. Having lost that battle, Republicans in Congress are still fighting to maintain tax cuts for the wealthiest Americans. There's a fundamental problem here.
James Madison recorded George Mason telling the Constitutional Convention on May 31, 1787:
We ought to attend to the rights of every class of the people. He [Mason] had often wondered at the indifference of the superior classes of society to this dictate of humanity and policy, considering that however affluent their circumstances, or elevated their situations, might be, the course of a few years, not only might but certainly would, distribute their posterity throughout the lowest classes of Society. Every selfish motive therefore, every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest than of the highest orders of Citizens. To which we should add another our own economic welfare. All business is based on people who can buy their products. When people are unemployed, bankrupted or otherwise impoverished, their hardships ripple through the entire economy. To update John Dunne, no person is an island.
So what economic sense does it make to cut taxes for the wealthy but deny unemployment compensation to people out of work? The national Republicans, the Chamber of Commerce, and their allies want everyone to pay taxes except the people who have money to pay. And they want to cut any services that require taxes, especially those that make it possible for people to make a decent living. Their economic theory must be that business people will invest regardless of who's buying and that the health of the buying public is irrelevant to business. What economic sense does that make? From the same source we get tax withholding for the wages most of us earn but no withholding for interest or dividends.
Economic policy should be based on plans for a healthy economy, or dealing with the problems that the mass of decent Americans have in an economic recession. Unfortunately a lot of conservative economic policy is based on prejudice. We're good. They're not. We deserve our advantages. They don't deserve a helping hand. Bailouts for the wealthy but not one cent for the poor. Or people yell loudly about who should be investigated keep the IRS off the backs of the super wealthy but investigate welfare cheats.
I understand that many people like feel good politics. You're terrific so you get rewards. They're not so they don't. But our economic problems are no mirage and will not be solved with comforting verbal formulas. In the face of serious national difficulties that threaten us all, the intransigence of the Republican congressional minority is a national tragedy.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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September 14, 2010: Jobs and Regulation
We need to have a serious discussion of the argument that regulations designed to protect people from injury should be limited because regulation will cost jobs. Injuries come in many shapes. Global warming will hurt us all is already doing great damage in drought, flooding and pestilence. Other products are poisoning people as well as the environment. Still others threaten direct physical injury. To which the common retort is jobs.
The website of the U.S. Chamber of Commerce includes this: "the U.S. Chamber will continue to oppose bad policies ... such as bills that jeopardize American jobs ...." And indeed the argument that regulation designed to protect society from dangerous products or from poisoning the environment we all depend on is a constant objection. So the battle rages regulation or jobs.
Jobs are important. I've used this commentary repeatedly to urge job stimulating policies. But how we protect and stimulate jobs matters. Here are some options:
- We could skip the regulation. And pay for the damage done by the unregulated industries in less visible but still significant ways in illness, hospital and other health costs, in dislocation caused by environmental damage to coastlines, droughts, or drinking water.
- We could regulate and lose the jobs and pay for those via unemployment compensation, retraining and other worker directed programs.
- We could invest in newer, safer technologies and assist industry movement in that direction with tax advantages or direct public investment, just as we invested in sewage systems, water supplies and fire companies.
- We could allow some industries to disappear and replace their productive capacity with other kinds of productive investments, both private investment in more socially desirable products, and public investment to keep the US on the cutting edge of development or to get the US back to the cutting edge in areas where we have fallen behind.
One simple reaction is that there is no free lunch. The bill will be paid. Consumers, people in the affected areas, workers, government and taxpayers, someone will have to pay the price for dealing with harmful behavior.
There is a moral issue. Jobs can't always justify harmful behavior. If they could, it would justify Barbary or Somali pirates, Mafioso and drug lords. There are ways to earn a living without hurting others.
That fundamentally is what our tort laws have said for a long time. Those are the laws that apply when you sue someone over an accident. It's a little more complex in lawsuits, but the basic idea is that if you could have avoided doing damage, you should. That's a simple moral rule.
Society has both obligations to provide jobs for people to do, ways for them to make a decent living, and to protect people from needless harm. Those are separate obligations. And neither justifies skipping the other.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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September 7, 2010: The Rewards of Obstruction
Yesterday Obama announced a new jobs and infrastructure proposal. The Republicans have already said no.
In law, if you kill to prevent a witness from testifying, the witness's out of court statements can be introduced against you. In politics, if you kill efforts to reduce unemployment so that lots of people are out of a job, and the Obama Administration won't get credit for getting them back to work, it looks like you win and Obama loses. But the American people lose. All of us. We all have a big stake in a healthy economy.
Obama understood our common stake in a healthy economy when the Bush Administration was trying to counteract the economic debacle in 2007 and 2008. Obama supported their efforts. It wasn't his or a Democratic plan, but it was the only plan, so he supported it. McCain got the point when he temporarily closed down his campaign to try to take part in the solution being crafted in Washington. That was in the last months of the Bush Administration.
Then Obama took office. The Republicans quickly decided to fight everything, to stall the Obama Administration, to bring him down at all costs. For them, politics has been more important than the country. It's not about Republican proposals, which the Democrats kept trying to incorporate but to no avail. It's all about winning the game.
There's neither loyalty nor patriotism in purely obstructive behavior, preferring to create a wasteland in order to rule over a defeated nation. They've been called "the party of no" and they glory in it. Saying "no" to the Democrats feels good. But there is no glory in extending the depression. The "party of no" is a fig leaf over the sacrifice of the great majority of Americans, those without jobs, those afraid their jobs will disappear, watching their retirement savings shrink, or taking in adult children who ought to be on their own but cannot yet support themselves because there aren't jobs for them to fill.
I suppose if we let them get away with it we deserve to lose, along with our sacred honor. But who's that "we"? The half of us that won't be duped? The kids who can't vote? How callous are we getting that some of us would back that kind of cynical abuse of the national trust. Election to office is a political trust. Misuse of office is a crime. Sacrificing the welfare of the country for political gain deserves permanent infamy.
The Tea Party is energizing the Republicans. Democrats are disappointed. I'm disappointed. But it isn't Obama I'm disappointed with. When I voted for Obama, I voted for a man who promised to do his best for us. I was not voting for a superhuman creature who could snap his fingers and change the world. I'm a grownup and I know that image is all dream and no reality. And in the real world, people who understand what needs to happen, as Obama clearly does, and who try to deliver all they can for the rest of us, deserve our appreciation, our support, our respect, not our complaints that he should have had such eloquence that no one could stand in his way.
We can lament the failure of words up to now, and replace Obama by a glib feel good devil who paves the way to hell with pretty language. Take your choice. Who, or better, what, are you for?
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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August 31, 2010: Backwaters are comforting, misleading, and very dangerous
There's been a lot of anti-immigrant sentiment lately, expressed in English only laws, antipathy to a projected Islamic Cultural Center, and Arizona's effort to enforce the immigration laws with a desert twist. Let's focus today on fears of people who don't speak English.
Colonists came here speaking a welter of languages including Scots, Irish, French, German and many others. Jefferson thought multi-lingual ability was a mark of true intelligence. In the early republic, there were many Pennsylvania communities where German was the essential language. I encountered an old Texas community that clung to German until the troops came home from World War II.
Corporations and the military struggled with towers of babel and undertook the task of organizing and training recruits and employees so they could function. None of this is about loyalty. Few are more aware of the blessings of America than those newly arrived. Some corporations had a training program that ended with a symbolic melting pot out of which the ethnic immigrants popped as Americans.
I don't think my grandparents ever mastered English. It certainly wasn't my fathers' first tongue though those who still remember him would be surprised to discover it. His A on an English paper was one of his proudest accomplishments.
Unlike dad, mom was not born in this country she came as a girl of eight traveling in steerage with a twelve year old brother and spoke no English. But you wouldn't have detected an accent. Neither wanted me to learn their native language my parents spoke Yiddish to each other when they didn't want me to understand. Many in the next generation, like me, wish we could have grown up bilingual, speaking English but understanding the language of our parents. Far from refusing to learn English, the children of non-English speakers are typically used as translators by their parents at the bank, with the landlord, wherever. Scary? Not really except for the people who are trying to survive in a world that doesn't speak their language.
My wife has taught English as a second language. She learned to do it for the Peace Corps and has done it here when occasion required, always to people who gratefully appreciated her help. There is a skill to it, particular ways that one teaches people who are not native speakers. When my wife and I were in training to join the Peace Corps, no one set us down with books on Persian grammar. We weren't mainlined with Persian speakers. It was all oral, all patterned, so that we learned instinctively the way that small children pick up a language, by interaction.
Unfortunately we have had little opportunity to take advantage of our Persian language training since we got back except for a little nostalgic conversation with our Persian-American friends.
That points to a larger problem. Americans are trained in so few languages, that we always face a shortage of people who are fluent in other languages when we need them. Many schools stopped teaching German after World War I. Russian? Forget it. That didn't save us from having to fight Germany again and a long Cold War with Russia.
Contemporary world politics requires people fluent in Arabic, Farsi, Chinese and other languages. Sadly instead, Americans try to bleach foreign languages out of the people who might be fluent in them. It puts us at a huge disadvantage.
Where people run away from the vitality of a polyglot world to separate themselves from immigrants and people who speak strange languages, they create backwaters. Backwaters are comforting, but misleading, and very dangerous.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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August 24, 2010: Islamic Cultural Center
I find the rhetoric about the Islamic Cultural Center scary.
People generally acknowledge that the First Amendment protects the right of Muslims to erect a religious building or cultural center. But there's another clause that is as central to what it means to be an American. The last portion of Article III includes the words: "no attainder of treason shall work corruption of blood." Translated that means that guilt is personal. We do not visit the sins of the parents on the children or vice versa. Nor do we imprison siblings for the crimes of brothers and sisters. We take people as individuals. That of course is the conservative objection to affirmative action that it is about groups, not people.
We don't trace crimes to their source and exterminate all the progeny of the wrongdoers. Nor do we punish or disadvantage them. We don't accuse Christians because other Christians have owned slaves or slaughtered innocents. Today's Jews are not responsible for the execution of Christ. And even the father of Anne Frank, who died in a concentration camp, refused to express anger at Germans as a class some Germans killed his family, but certainly not all.
That distinction between the individual and the collective is an important part of American principles. It is a central barrier to notions like ethnic cleansing and genocide. It is the line that defines the difference between innocent civilians and legitimate military targets.
Blur that line and we are all dead.
There's some controversy over the exact text but Martin Niemoller said something like:
"THEY CAME FIRST for the Communists, and I didn't speak up because I wasn't a Communist.
THEN THEY CAME for the trade unionists, and I didn't speak up because I wasn't a trade unionist.
THEN THEY CAME for the Jews, and I didn't speak up because I wasn't a Jew.
THEN THEY CAME for me and by that time no one was left to speak up."
The principle, if it is a principle, applies to Muslims. And it should apply to Muslims just as much as to the rest of us. It should apply because no one in his or her right mind thinks Muslims as a group are guilty of anything. I was treated with kindness and respect when I lived in Iran. I certainly despise their current government. But the people I knew were lovely and kind, and the Persians showed the same dispersion of the good and the bad that is true of other peoples.
But no group is as likely in this world to be misunderstood, to have their intentions distorted by the prejudice of others. We need Muslim cultural centers where we could all drop in and remind ourselves that Muslims died in the World Trade Center just like everyone else who was there, that Muslims in America mourned those losses like the rest of us, and that our Muslim neighbors were not on those planes, were not part of those conspiracies, and that just as large a proportion of Muslims are decent, kind, loving people, as the rest of us.
What we do not want is the privilege of citizenship defined by the most prejudiced among us. May the God of all of us help us all.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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August 3, 2010: Overkill
More than two centuries ago, Jeremy Bentham explained the virtues of moderation. If you cut off people's heads for the most minor infraction, you encourage the petty thief to kill. Criminal sentencing needs to be graduated. Pure vengeance puts society more, not less, at risk.
Decades after the Rockefeller Drug Laws were past, we seem to have learned that lesson with regard to sentencing for minor drug crimes. But now apparently we need other villains whom we can punish without restraint.
One such villain we label sexual offenders. We make it almost impossible for an offender who has served his sentence to find a place to live or work, virtually guaranteeing that they will join the ranks of the underworld. They have no choice. And we label people sexual offenders whose crime was to open the pages of the wrong magazine. Our punishments are so out of proportion that finding ways for people to reintegrate into society, and live productive lives, is now a major issue.
Of course we don't just do it with drug crimes and sexual offenders. Cigarettes are clearly bad for the health of all those who breathe the smoke. So we give ourselves the privilege of constantly heaping more restrictions. But it's not OK to encourage a black market, with all their criminal trappings. And I'm not thrilled at turning on the Native Americans every time they get their hands on something that makes them any cash, casinos, now cigarettes, and saying sorry we want that. There is such a thing as going too far.
Of course the newest villain is BP. They certainly are blameworthy. But the pleasure at having a whipping boy is blinding too many people to the larger issues, the larger record of spills from off-shore wells and the transportation of petroleum by ships, trucks and pipes, and the larger record of global damage from hydrocarbons. No it's not the case that heaping enough penalties on BP will solve our problems with off-shore drilling or any drilling for oil.
The larger issue seems to be that we have lost the politics of proportion. It's all or nothing. The tea-party movement can't think of anything worth paying taxes for or any government regulation worth having. Vocal business interests shout shrill slogans about squelching innovation as if innovation was the same thing as good and didn't also come as clothing for fraud, foul play and dangerous products. And no you can't count on the fact that most people are decent because in too many areas of life, the bad drives out the good unless we have watchdogs who are able to stop it.
The tea party makes a tea party of the Constitution. They see a clarity to two century old text that just skips over all the complex questions of meaning and intention and how the founders and the Constitution they wrote adapts to new problems in new situations and conclude that they wrote a Constitution designed to keep us in the 18th century and unable to adapt to the 21st or to govern ourselves democratically in response to our current problems and issues. It must be nice to see things so clearly, so simplistically, that the Founders would not recognize those who claim to be their accolytes.
All or nothing is easy. Good or bad. One or the other. Moderation takes more sophisticated thought. There are more things to think about. Problems aren't so easy and answers aren't so clear cut. But we have lost the politics of moderation. Some people call that moral clarity. But attaining clarity by driving blind is immoral. Woe be it to us.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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July 27, 2010: Israel and the spread of the Muslim population
The so-called Six Day War took place while I was still working in Iran. I listened with my host on his short-wave radio to reports from the BBC. Hassan was Muslim and felt torn. He was an agricultural engineer who had studied Israeli farming methods and admired them. Iran in those days had a constructive relationship with Israel. I myself was in the Israeli embassy in Tehran.
In a straight up war with its neighbors, it was possible for everyone to come out ahead. Everyone understood Israel had the right to defend itself. Egypt, Jordan and Syria massed for an attack. Israel launched a preemptive strike. And it won some territory B that happens in wars. Little Israel had taken on most of the Arab world and won. Many Iranians admired what they had done. They didn't much care for Arabs then, even though they were Muslim.
Then the Arab states launched a surprise attack in the so-called Yom Kippur War in 1973 to make up for their losses. It was mostly a standoff but Israel's neighbors could feel that this time they stood up to Israel. The attack made Egyptian President Anwar Sadat a hero. Six years later he signed the first peace treaty with Israel.
But other than total war with its neighbors, Israel had been pursuing a policy of retaliation to punish and prevent isolated attacks. Palestinians would fire rifles or lob missiles or granades and a few days later the Israelis would launch a retaliatory strike. Even from then relatively friendly Iran, it was clear to me that such a policy of retaliation could not bring peace. But I didn't have the words to explain my feeling about it.
Something else was amiss. The Israelis seemed to believe that time was on their side. All they needed to do was to defend, retaliate and wait til everyone else came to their senses. But in those days, it wasn't even clear who the enemy was.
It's clear enough that the Arab world did not back off. But something else has happened that makes the Israeli gamble unsustainable B demographics. In much of the world, this country included, the Arab and the wider Muslim populations have been growing substantially. The people I know from that part of the world and I agree to disagree. We discuss issues respectfully and within polite limits. But in politics, the question isn't necessarily whether they are right or I am right. The question is votes. And that calculus is changing. It has clearly changed in Europe. It will inevitably change here.
So what should Obama be saying to Netanyahu? For Israel's own good, he should be scaring the pants off Netanyahu. There will be no peace, there can be no peace, while Israel is convinced it can wait out the Arab world. Peace, now, is the only path to Israel=s survival. And it had better be prepared to sacrifice a great deal for it. There is no other way.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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July 20, 2010: Politics in Afghanistan
There has been a lot of talk about how knowledge that American and other troops would withdraw from Afghanistan would encourage the Afghanis to step up to the plate and fight the Taliban on their own. That view has been convenient in the US. It suggests that Americans can withdraw without consequence for the war there.
That's really a very strange view and suggests a complete inability to put ourselves in the place of Afghanis. Even very small children understand that things look different to other people. Americans are very experienced at democracy. We should be experienced at figuring out how things look to politicians. But it has been pretty obvious that Americans have not been able to put themselves in the shoes of Afghanis, or for that matter, any of the Middle Eastern or Asian peoples.
So we just get put out with Karzai because he has not been playing according to the American rule book. Instead he has been negotiating with the Taliban. Surprise! We announce that we are going to pull out and he=s trying to make a deal with the enemy! Nor has he taken on the warlords that we have come to despise. The guy has been behaving like a politician. How could he do that? Don=t they have elections? He should be behaving like an American agent, not an Afghani politician. After all, who established the elections there and put him in office. He should be grateful. Instead, he is behaving like a politician. Amazing.
So let's play it straight. Our pull out is going to mean that the US loses influence in Afghanistan. Gratefulness is not a political strategy and the Afghanis are going to adjust to their new reality.
There are some other new realities. The world is not very tolerant of occupation of someone else's country. It does recognize retaliation. But not occupation. The world was horrified by 9/11 and it did rally behind our effort to curtail the threat, behind the initial entry into Afghanistan. And in 1990 it did rally behind teaching Saddam Hussein a lesson. But in 2003 it did not rally behind forced regime change and conquest, in Iraq. That war made our motives in Afghanistan seem much less pure and, despite initial support, the world has now recoiled against the long term occupation of Afghanistan.
All of that affects our ability to achieve our objectives. Had Mr. Bush understood the very real constraints this world imposes, we could be in a much better position now. Invasion is much easier than occupation. Occupation requires a much larger army than the US and its allies have been willing to sustain in the field. And while invasion divides and demoralizes a weaker enemy, occupation unites opposition. Which is to say that overreaction is less effective than a measured reaction.
So what now after all these mistakes? We have made the point that we will respond, with great force and very destructively to attacks on our soil. But our presence on the ground offends Afghani patriots. It's not all about the U.S. Americans need to understand that, for better or worse, people are nationalistic about their own countries. Invaders are not popular. And it puts Afghanis in danger from our attacks, and in danger from the Taliban if they cooperate with us. There are good reasons for Afghanis not to welcome us.
So it's time to return to the strong moral position America and it=s allies once had B that we will defend ourselves, we will retaliate and make anyone who would try to harm us pay dearly, but we do not seek to rule. In other words it=s time to find a way to leave Afghanistan to the Afghanis so long as they leave us alone.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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July 13, 2010: The Devil's Budgetary Deal
Let's talk about the budget. The whole business of government deficits has been a political smokescreen for decades. The Reagan Administration deliberately used deficits as a way to force cutbacks in what had been popular social programs. What the first President Bush called "voodoo economics" was a convenient way to camouflage the real objective of trying to take apart programs that had worked well, and helped to keep us out of another depression, for half a century. Reagan's budget director was explicit. But it was obvious. For decades Republicans had been screaming about deficits. Then they enlarged them. Deficits were then used as a tool to attack what had been invulnerable. Suddenly even Social Security became a problem. That was Reagan's success B or failure.
The younger George Bush did it again. All these balanced budget hawks came in and immediately decided to unbalance the budget, not because there was a problem but because a balanced budget didn't give them the excuse to cut more social programs. So they unbalanced the budget by giving large tax cuts to people who needed none and then claimed they had no money to give a hand up to people who needed one, for education, Social Security and other programs. More cuts.
When George W. Bush took office in 2001, there was no good reason for deficit spending. Despite the internet bubble, the fundamentals of the economy were strong and we'd had a decade of strong growth. Good times are times to keep the budget in balance and build up a surplus for future hard times. Clinton was onto that project.
But bad times are times for deficit spending. The very definition of a depression is when a large part of the economy starts economizing at the same time. If one business, even one city, economizes by laying off some workers, they should be able to find jobs and there should not be any significant impact on the economy. If lots of firms and governments start economizing at the same time, they create a whirlwind B less employment and less money force still more people to do the same until the economy hits bottom and we're all out of work. It just isn't true that we can all do the same things at the same time without disaster.
Now Republicans, conservatives, Tea Partyers are still screaming about the budget. They claim the budget is out of whack and they want to cut revenues even further. But I cannot accept all the Tea Party nonsense at face value. Cutting budgets now will deepen the recession. It's the wrong remedy at the wrong time.
There's a big subterfuge at work. It's not about deficits. It's a back door attack on programs they don't like but can't attack except on budgetary grounds. Who could attack education except on the claim that we can't pay for it even while they insist on cutting those sources of revenue that don=t depend on the very unfair property taxes? Who could attack Social Security except on the claim that we can't pay for it? But if they cut the budget again, all we'll have left will be the survival of the meanest and best armed bullies.
So the Tea Party budget hawks are really offering us a deal with the devil, a path to hell, when all of us will need those social programs we don't have any more. To get rid of the social programs they don't like, they're willing to put millions of people out on the street selling apples and sleeping under cardboard. I'm not willing to deal with that devil. Better to run the devil's minions out of politics.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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July 6, 2010: Conservative, Republican, Activist Courts
Republicans have complained about activist judges for decades. But actually they like activist judges who garble the law.
Here's a story in three parts of conservative, Republican, judicial activism.
Let me start in 1925 when the Federal Arbitration Act became law. Congress can regulate interstate commerce. The law said arbitration clauses were enforceable for business contracts in interstate commerce but not for employment contracts in interstate commerce. The term interstate "commerce" meant the same thing in the section mandating enforcement for commercial contracts and in the section exempting employment contracts. As a result, employment contracts were not governed by the Federal Arbitration Act.
In 1925, the Court interpreted interstate "commerce" very narrowly. As the Court then understood it, few businesses were in interstate commerce. If they were, arbitration would be enforced but not for employment contracts. Interstate "commerce" meant the same thing in the section mandating enforcement and the section exempting employment.
Part 1: In 2001 the Rehnquist Court reread the Arbitration Act. It read contracts in interstate "commerce" in section 2, mandating arbitration, broadly, the way interstate commerce is now generally understood. But it held interstate "commerce" in section 1, which exempted employment contracts, should be interpreted the way it was in 1925 B very narrowly. That turned the Act on its head so that it enforces arbitration clauses in all employment contracts. That=s activism.
Most arbitration clauses are written by large companies and presented to the rest of us in Asign here@ form. The clauses specify how arbitrators are chosen, where arbitration will take place, how much it will cost to arbitrate, and generally whether an employee will have a prayer of justice.
Anyone familiar with arbitration understands that arbitration can have huge advantages but that it can be constructed to put huge biases in the face of occasional claimants trying to take on big companies in arbitration.
Part 2: The Court has continually revised the Federal Arbitration Act to amplify the biases of arbitration. It requires arbitration despite violations of federal or state statutes. In cases flying under most people=s radar, the Court has effectively rewritten federal and state labor and consumer protection law, rewritten it wholesale, not picking on provisions that might be wrong in some way, but simply disabling federal and state protections wholesale.
Few have been aware of these cases. But Republicans and conservatives have noticed B they plan litigation campaigns to take advantage of the Court=s arbitration cases.
Part 3: Now the Roberts Court has decided that the arbitrator gets to decide whether the contracts that specify arbitration are so grossly unfair that they are illegal under an ancient doctrine known as unconscionability. So arbitrators required by company contracts get to decide whether the arbitration clauses are legal.
How they did it shows what Roberts meant by the fairness of an umpire. Prior decisions said challenges to arbitration clauses in contracts should go to a Court. So companies hand job-seekers two pieces of paper, one the "employment contract," the other just an "arbitration contract," saying sign both. To everyone but conservative judges with an ax to grind, that's one deal, one contract. But the Roberts Court said great - the case is different ? because there are two contracts, the fairness of the arbitration clauses goes to the arbitrator.
The reality is that the Roberts and Rehnquist Courts have been two of the most activist Courts in US history. They figured out that they could fly under the radar while reaching some of the Court=s most activist, and bizarre decisions.
I=ve heard it said that the Republicans own the complaint about activist courts. It=s time to hoist them on their own petard B they are the activists, largely in pursuit of special, well-heeled interests who use the law to take advantage of the rest of us. Shame on them; shame on the Court; shame on the conservative hypocrites crying activism.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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June 29, 2010: What Will the Gun Rights Decision Do?
For most people, firearms are invitations to self-destruction or murder. A significant percent of the people killed by the police are unarmed. Tests show civilians are much more likely to pull the trigger than police. I've taught a descendent of the feud between the Hatfields and the McCoys. Murder leads to demand for revenge. But as we've seen around the globe, revenge is often exacted on the innocent, widening the circle of combat.
I was on a call-in program with Alan Chartok when the Court's earlier gun rights decision came up. I commented about the danger of private paramilitaries and a caller interpreted that as meaning the decision was OK because it wasn't about paramilitaries. It is a mistake to think of weapons only in individual terms. People will do what they will with firearms. They do it in gangs, in crime syndicates, and in private paramilitaries.
Both here and around the globe private unauthorized paramilitaries train for the day when, in their own uncontrolled opinion, they will have to take law into their own hands. We've seen what Blackwater has done despite officially sanctioned training. Their misbehavior deepened our difficulties in Iraq. Elsewhere, private paramilitaries have turned themselves into the death squads that made a mockery of law, order and justice in Latin America. Paramilitaries have served so-called warlords that turned their populations into serfs and soaked their countries in civil war. Arms will be misused.
Paramilitaries also spawn loners like Timothy McVeigh who bombed the federal building in Oklahoma City and Faisal Shahzad who attempted to bomb Times Square.
Many of the takeovers by the most brutal dictators have supposedly been to quell the violence. Hitler was handed the keys to the German dictatorship on the supposition that he could stop the bleeding his own Storm Troopers were creating. The arming of a population is an invitation to mayhem and civil war.
Police rightly fight against the spread of weapons.
In the US, we are blase about the risks of private paramilitaries training in woods and on plains around the country, organized only by the most outrageous extremists because we imagine our Revolution as a popular uprising from below. In fact, we avoided the worst pitfalls of revolutions around the globe because ours was managed from the top, by state governments that reorganized themselves when freed of British governors. George Washington was chosen almost from the beginning to lead the Revolution by a national Congress meeting in Philadelphia. Our Revolution never lacked organization. It never amounted to self-appointed paramilitaries doing as they would. Thank heaven.
Politically, it's harder to tell what this decision means. Some defenders of gun rights have objected even to bans on assault weapons on the ground of a slippery slope. Perhaps this decision can satisfy them that some level of gun rights is not going away so they can accept some controls though the gun lobby's lawyers have already said their first target will be to make it possible for people to get guns who are under court orders to stay away from women they have assaulted or threatened. That doesn't sound like the voice of reason from the gun lobby. On the other hand, perhaps the decision will invigorate those of us who think the spread of guns is a threat to civil society.
The politics of Supreme Court opinions is not fore-ordained. And the level heads among us had better make sure that this decision doesn't mark the plunge into the insane world of murder and reprisal that has dug so many graves in such a large part of this world graves for millions of people, and graves for free and democratic government.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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June 22, 2010: Less government is what got us in trouble
The oil spill continues to fester. Apparently the government made some errors that facilitated the oil explosion and leak in the Gulf. It gave out permits it should not have given and it failed to watch closely enough to enforce safety rules. Some people will mindlessly use those errors as an attack on government, as the basis for saying we need less government, not more.
But that=s exactly what they got in the Gulf. It was a private driller=s paradise B no government, no regulation, just do whatever you pleased; nothing to stand in the way of innovation, production and cheap oil.
Except of course that the problem was that we had no government, no government to police the rules of the road, no government to represent the interests of everyone except the oilmen, no government to protect the Gulf and all the people whose livelihoods depended on the waters of the Gulf B if indeed the damage is restricted to the Gulf.
It seems to be a well kept secret but not all businessmen want an unregulated marketplace. For some businessmen, lack of regulation means that their competitors are free to degrade quality and safety. What=s worse, when competitors advance their own firms by cutting protection for our safety, those who want to protect the rest of us may be driven out of the business by those cheaper competitors, a clear and common example of Gresham=s Law B the bad drives out the good. So responsible businessmen actually seek regulation that sets a floor under everyone so that they can produce the quality products they want to produce, or produce the oil in an environmentally safer way.
I can just hear those fake know-it-alls claiming that people can choose what they want to pay for. But who got to choose the oil spill in the Gulf? And even if you could choose, knowledge is costly B it takes time to find out about the dangers we face and more time to find out how our market choices can allow us to avoid it B which companies are printing the mercury content of their fish, for example?
And if you are among the lucky one=s who make the time to get some of the information we need to live more safely, why should each of us have to spend that time when it would be much more efficient for one group of trained professionals to spend the time learning much more than any of us could individually and regulate what would otherwise be dangerous products or put the information in front of us. In other words, economically, yes, according to the rules of Adam Smith, government can be a very efficient way to solve problems.
Except for the folks with blinders on their eyes and microphones at their lips. What we need is better government, not government abdication. Oh and for all those who would be inclined to quote Jefferson, he thought so too. That's why he was involved at the founding.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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June 15, 2010: Lessons from Machiavelli and Clausewitz for the US and Israel
The world, and some of our friends in the peace movement, has an enormous double standard directed against Israel. Palestinians attack and their attacks are coordinated and serve as the avatars of foreign governments. For more than half a century they have inflicted seemingly random and unpredictable death and destruction on Israeli civilians. Most of the world ignores the damage. The Israelis strike back and suddenly everything is wrong. As George Orwell pointed out the world would choose sides based on perceptions of race.
But history cares not at all about justice. History marches to the beat of the stronger. And if people=s perceptions of justice figure in who will be stronger, history ratifies their judgment, And by that standard, it is all over. Israel is doomed. Every step it takes only further seals that doom. It doesn=t matter at all that I am saddened or find it unfair and unreasonable. Stuff happens.
Machievelli wrote many centuries ago that the wise ruler does his most oppressive acts quickly and soon and then puts it behind so people begin to forget. Israel is not the only nation to have ignored Machievelli. George Bush put us on that path in Iraq and Afghanistan. A thousand cuts each making more life dangerous, more painful, for the people we claim to want to help, confronting them with life or death choices B back the Americans or this or that other group. It has dragged out now for nearly a decade. I'm sure they are thanking us.
War changed forever when citizen armies took the field in the 18th century. It led to an arms race. And it turned the people into an object of war-making. In this world of mass warfare, victory, if it is possible at all, demands rivers of blood, sweat and tears. Globalization has changed it still more. Neither Israel nor the US can win our conflicts without substantial support both locally and worldwide. The Palestinians, al Qaeda and the Taliban have too many places to go and both we and Israel face too many limitations on our actions.
Carl von Clausewitz, the famous Prussian military theorist, wrote that war is a continuation of politics by other means. The reverse is also true. Politics is also a continuation of war by other means. And the failure of politics may make war unwinnable.
I know it is hard for the war hawks and the people who pride themselves on their toughness to understand that lesson. But misreading politics is weakness, not strength, like a bad bid in a poker game.
Refusal to read the politics accurately is a characteristic weakness of democracy. The politician who says this war should not be fought seems weak to the voters. The politician who advocates a restrained and focused response to international terrorism will often be hounded out of office. Few had the courage to risk Bush=s call to arms. Less than a quarter of the Senate voted against the War in Iraq.
But if Israel is to survive and if the US is to remain strong, we need to mature in our reactions to world politics, threats and even to terrorism B not because we surrender to it, but to have any hope of defeating it.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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June 1, 2010: Qualifications for Judicial Nominees
We have discussed on several occasions nominations of Supreme Court justices. Chief Justice Roberts famously compared the job of a justice to the job of an umpire calling balls and strikes. You stand behind the plate and if the ball travels inside that territory called the strike zone, it's a strike; if not, it's a ball. The strike zone is real and measurable, although baseball has chosen not to use high tech equipment to second guess the umps.
But how can Roberts apply that to law? The Constitution includes some wonderfully majestic and undefined phrases like due process, equal protection, freedom of speech, commerce among the several states. It includes descriptions of the powers of the president and Congress that do not discuss the modern conundrums in which we find ourselves. There is no instant replay camera that can tell us whether the ump got it right or the ump got it wrong. In the ballpark fans yell "Kill the umpire" but it's the language of partisans, not verification.
In our Constitutional Convention delegates talked about judicial discretion. They understood, in the language of James Wilson, representing Pennsylvania at the Convention, that a law might not be "so unconstitutional" that the Court would disallow it. That more or less, that "so unconstitutional", is the language of discretion. And the founders of this country, the creators of our laws, understood it very well.
So how can one apply that kind of analogy to law? As if the majestic uncertainties of our Constitution were in fact numbers in an accountants ledger? Only one who has not been exposed to other ways of understanding or one so arrogant in his or her own views not to be able to respect the thinking of others, can see the Constitution is those terms. On law faculties we discuss meanings endlessly, trying to improve our understanding of the Constitution, expecting different views and welcoming the discussion. We may be passionate. But we are not blind and deaf to the views of others, incapable of imagining other ways of understanding. But if you've never been exposed, or never learned to respect the views of others, it's possible to believe there is only one way.
Most of us start that way; as we are first exposed to the Constitution in our youth it has all sorts of meanings that seem obvious to us just as our politics seemed obvious then. But as we mature we come to understand the complexity of reality, and appreciate different ways of thinking. The Constitution is not child's play. That's why it requires judgment. And that's why the claims of people like Roberts and Scalia that the Constitution is clear and there is only one way to understand it, that we can read the text and know what it means, is either naivete or cynical manipulation. Either way it evinces a lack of respect that is inappropriate in a democracy.
Indeed lack of respect for contrary views has become a great problem in contemporary America. Many of us grew up telling each other that one of the marks of democracy is respect for the opinions of others. Members of the highest court in this land ought to be people who understand that.
So I hope Elena Kagan has strong, passionately held views, views that are quite different from the reigning ideas of Roberts, Alito, Scalia, Thomas, and often Kennedy, in the breadth of her understanding. We can do better than appoint judges whose sense of certainly is the result of cynicism, ignorance or arrogance.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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May 25, 2010: Dump Stereotypes About Government
Attorney General Cuomo opened his campaign for Governor by attacking state government. Frankly I'm tired of all these attacks coupled with the systematic failure to acknowledge all the good work being done by state government.
I'm not naive. I know there are people out there who are not doing good jobs. I know that there are programs gone awry or miscast from the beginning. That's true in all fields of life. But living in Albany I also know people who are working their hearts out for the people of New York State and I have no doubt the same is true of the other states our listeners live in.
I know these people as neighbors, former students, people I meet in community projects. When we first moved in to Albany, one of our neighbors was shortly to become the head of the Environmental Bureau of the Attorney General's office. He had offices both here and in New York City and worked long hours on the public's litigation. Some of the most exciting environmental litigation in the country was being handled in his office. The work excited and drove him. The staff he acquired continue to be recognized as experts in the field. But some years ago an election resulted in another politician running against government and he stripped the office of its experts. Sometimes it is important to recognize the quality of the work being done lest we lose it.
Right now the public outcry about the closing of state parks is an indication that the people think our Park Service is doing an important job, doing it well and deserve our support. One of my former students is the great grandson of the donor of one of those parks and he is fighting, not to get the land back, but to keep it where it belongs, in the hands of the State Park Service and open for business.
I've known a number of people in the NY State Department of Health. I doubt the public understands just how valuable the State Department of Health is. People in the Health Department are scientists. They spend their time trying to identify infections, stave off health threats and keep us healthy. They run some of the largest and most important laboratories in the nation, indeed in the world. They don't spend their time figuring out how to tell the public that they are doing a great job. But someone needs to acknowledge their work.
Another person we know works on a project trying to deal with the impact on New York's coastline. She stunned me when she told me that New York has more than a thousand miles of coast line not just NY harbor but both sides of Long Island, both sides of the Hudson which is tidal up to Albany, and the shores of Lakes Erie and Ontario. All of these and more will be affected by rising waters, just as the health of New Yorkers will be affected by organisms that will grow in a warmer climate. Their work needs to be acknowledged so that we are smart enough to protect it.
Certainly there are mistakes being made and there are problems with the way the legislature works and other structural problems. But politics has become a war of stereotypes. And that is unhealthy. It is no more true that government employees can be painted with the same verbal brush than it is true of any of the groups we identify with, whether our ethnic, religious or racial background, or people in our niche in the economy. Maturity and common sense requires outgrowing childish stereotypes.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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May 18, 2010: Greece and the Multiplier
Americans cheered for the Greeks as they fought for and won their independence in 1830. For most of the intervening years we've had issues nearer home to think about. And Greece is far away. But recently it has been having difficulties which threaten European economies and perhaps our own.
The obvious fact is that Greece is in debt and does not seem to have the wherewithal to pay its debts. So the remedy being forced on it is austerity. Cut, cut, cut expenditures. Cut pay, cut workers, cut benefits, cut programs, just cut, cut, cut.
The problem is, however, that the cuts will also cause trouble. All the people who are employed by the Greek government, who work on government projects, or depend on government programs will now have less to spend. And so too all the people they did business with, all their suppliers and the businesses they patronized will also have less.
This is known as the multiplier effect. If you or I stop buying from one place and turn our business elsewhere, it is a drop in the bucket of the national economy. But when we all pull in our belts at the same time we call that a depression. And the repercussions become a kind of black hole that pulls the economy increasingly downward. When a country contracts the impact can be very large. There is an enormous difference between the impact of individual decisions and the systemic impact of all of us doing the same thing at the same time. When a country collapses that is much more like what happens in a depression. Countries are just too big. Think for example what happened in Michigan when GM was near bankruptcy. Size matters. So what is Greece to do?
There is something else going on in Greece. It turns out that the rate at which Greeks pay their taxes is extremely low. 98% of Greeks denied owning some forms of taxable property. The black market is huge, largely representing refusal to pay taxes. And the size of the withheld taxes is close to the size of the Greek debt. That really limits Greek options.
Is there a lesson on this side of the Atlantic? New York and many other states are contracting their expenses. That will have very predictable multiplier effects as each state shrinks its own economy and those of its neighbors and trading partners. The result is likely to deepen the depression we have been in since 2007. The extent of the multiplier and its effect on taxes will mean that states will not get out of their hole. They'll spend less. But they'll collect less. And they still won't be able to pay their debts. The world tried that solution in 1929. The result was worldwide disaster.
Turn away for a moment from the loudmouths yelling about cutting programs and taxes. Restoring some of the taxes unwisely cut by the Bush Administration actually puts money in circulation and what had been a vicious circle can become a virtuous circle in which we all gain because the taxes we pay aren't the end of the story. The taxes we pay are an investment in the economy and we benefit from the general welfare, just as most of us lose, not benefit from the economic misfortunes of others.
Of course government funds can be spent wisely or foolishly. But government investment in infrastructure and in the services that underlie a strong economy and clean food, air and water keeps on growing the economy.
It's time to toss the tea-party nonsense overboard and start making some level-headed good sense, both here and in Greece.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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May 11, 2010: Let's show some respect for those who have little else
As I left a shopping plaza a few days ago I spotted a woman, probably in her 30s, with a sign that read "Homeless veteran." I have not been able to get her out of my mind. It's not the paltry dollar or two that she wanted. It's that we as a society take so little responsibility for the tragedies in our midst.
One part of our population is hawkish about foreign affairs, ready to fight anywhere around the globe, convinced that this "superpower" should whip the pants off recalcitrant countries wherever they are. And then turn around and mock the part of our population which wants to take care of our wounded and our homeless.
Real conservatives in this country used to talk about responsibility. But the way we are treating our veterans and our homeless is totally irresponsible. Men and women who have served this country abroad and whose minds and bodies have been destroyed in the process are entitled to our help and concern.
The homeless population in the U.S. is not just a story of personal irresponsibility as some would have it. Cities have bulldozed the places the homeless used to be able to afford so that the wealthier among us would not have to see buildings that had become eyesores; now we step over the people that have become eyesores to the uncaring. Mental institutions have been closed without provision for halfway houses, outpatient services and group homes because some of us don't want them in our neighborhoods. We hound people who have paid for their crimes so that they have no path to rehabilitation, and many sleep on streets. Homelessness is not just something that happens to people; it happens in a society that has been turning its back.
Homelessness is not just something that happens to other people, people you don't know. In an urban world it's easy to lose track of people you used to know. I was rather comically attacked on a New York City subway car by someone I'd known as a schoolboy. He was angry at me because he remembered I'd scored better in some class we had together. In those days he had been class clown. Perhaps, there on the subway, he hadn't been taking his medicine. It was comical he merely knocked himself down but it was emotionally jarring. I had two very young children at the time and was wary but it also hit home.
Another woman I'd dated in high school had spent a career working to help the homeless. She told me a story not long ago about an evening when she and her late husband, whom I also knew back when we were in school, came home to their apartment in an expensive part of New York City. There by the front door of the building they saw a disheveled man, obviously homeless, begging for loose change. Suddenly her husband said "Joe"! A friend they had lost touch with. But life had been cruel to him. She told me they took him upstairs, cleaned him up and fed him a good meal.
A young friend of ours may have spent a year homeless out west we'll never be sure; we only know he was identified when he finally passed away.
This is a cruel, complicated world. And I cannot subscribe to the notion that there is any shame in a heart that bleeds and a head that knows that these problems can only be ameliorated if we accept collective responsibility to handle our affairs more humanely.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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April 27, 2010: Need for true Republicans
Ronald Reagan famously said government is the problem. Lawyers are taught to be very careful about making all or nothing statements like that. The real world is usually full of qualifications. Like all categorical statements, the claim that government is the problem is false, misleading and harmful.
We now see a movement of people who are distinguished largely by their ignorance simply demanding that government do less and less with less and less. And they justify their claims with references to America's past. Actually they are ignorant of our history and merely reshape it to suit their assumptions. In fact they are undermining the great work of our ancestors in giving us a lasting Constitution with strong and independent branches designed to do a job the job of improving the welfare of every American.
So too this movement of protestors are undermining the historic foundations of the Republican Party. The Republican Party was formed to solve America's greatest problem the scourge of slavery. And from its beginnings it also addressed our economic and social problems. It promised federal lands to those who would work it, and built the country's great land grant universities to improve our farms and society with education.
The Republican Party was not formed as the enemy of immigrants, African-Americans or collective action to deal with common problems. It was not formed as a party of economic freedom to dump on everyone who didn't have the clout to resist.
The Republican Party was formed as the can-do party that built transcontinental railroad it didn't stand on the sidelines and count pennies, saying developing the country was a job for business in which government had no role. It built on the tradition of positive government involvement symbolized by the Erie Canal, the canal that built New York into the Empire State, whose accomplishments continue to give this state one of the healthiest economies in the country.
The Republican Party controlled this country when we adopted the anti-trust laws and built the first public health systems. That Republican Party was not terrified by the hallucination that doing good is doing bad.
The Republican Party was not founded on the notion that anything and everything the government does is bad. It was founded on the notion that the government had a job to do to improve the health and welfare of this country. It was committed to that task. It kept the nation together, ended slavery and its economic agenda worked as well. Its land grants built the west. Its land grant colleges became our major universities and engines of American economic growth.
We need that Republican Party now. We need a Republican Party that joins in solving our racial divides, not a party that tries to hold the line against social justice. We need a Republican Party that stands for liberty, not for torture. We need a Republican Party that stands for public health, not a party that stands for the right to die of disease and gunshot wounds. We need a party whose principle is not a rejection of mutual aid but an embrace of public improvement.
It's time for real Republicans to stand proud and take back their party.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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April 20, 2010: Superpower
Americans have grown accustomed to talking about this nation as the world's superpower. We glory in the notion that we are the top dog in the international pack. It's a very dangerous conceit.
A list of the empires that thought they ruled the world should be enough to make the warning clear: the Persian, Greek and Roman empires were all humiliated when they stood astride large portions of the earth. The Chinese, Spanish, French and Germans all once thought they were the center of the earth. And not so long ago "the sun never set[] on the British Empire." The Ottoman Turks were heir to a large portion of the old Roman Empire but they were destroyed, not unlike the Roman, from both inside and out.
Being top gun means being everyone's target. It can be lonely and dangerous at the top.
We Americans like to celebrate ourselves as if our stature were somehow automatic and too many of us like to pit our virtues against any effort to improve, as if virtue exists outside the will to weed our flaws and improve our strengths.
This celebration of ourselves seems patriotic until it becomes obvious that we have been hiding our mistakes, covering our sins, and protecting ourselves from needed housecleaning. Like the corporations that become resistant to change, and the countries that allow politicians to entrench themselves as two bit dictators, countries that resist self-criticism and self-improvement are doomed to failure and destruction.
Basking in our sense of glory we are defending what we call American interests the world over, and fighting two wars against enemies that replicate themselves across the world. We have poured billions into defense against the last tactic of the terrorists. Like the French Maginot line after World War I that the Germans simply bypassed in 1939, we spend billions on airline security despite evidence that much smaller expenditures could give us virtually as much security and despite evidence that there are much more likely threats to more vulnerable facilities that remain unprotected. We are still fighting the last attack instead of thinking strategically about the next. We are providing the public with the mirage of security for political PR rather than actually protecting the public from much more realistic dangers. Self-congratulations and politicians who govern by pollsters are dangerous.
We comfort ourselves in anti-immigrant measures despite evidence that we have a surfeit of home-grown terrorists. Worse we have political movements that are bound and determined to undermine America's ability to govern itself and thereby to protect itself.
This country is suffering from an auto-immune disease, condemning government generally as if we could defend ourselves without it, and condemning as too expensive everything but the military that might make Americans safer. This country is unprepared for emergencies.
I find myself censoring the details, not wanting to put it out there, but people should begin demanding meetings with safety services officials and with the political leadership of our states and communities and start asking questions about what they are doing to deal with different kinds of possible attacks chemical, biological, water, utilities, radioactive, the list goes on. I think you would be horrified. But we must begin to demand, not that government spend less, but that government protect us, not by assuming that we are invincible, but by taking the steps necessary to prevent real catastrophe.
Self-congratulation is a path to humiliation, defeat and destruction. I'm tired of self-congratulations and want honest self-criticism and constructive change the only safe path to protect ourselves and our children.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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April 13, 2010: John Paul Stevens
Some of us grew up with Mozart envy, feeling over the hill when we were barely out of our teens. But then here's John Paul Stevens who has made his mark in his 80s. He announced he would retire at the end of this Supreme Court term, when he will be 90 years old, convinced that he is aging because his tennis game is slowing down.
Stevens has been something of a surprise. He joined the Court as a conservative member, usually siding with other conservatives on the Court against its liberal wing. He cut his teeth fighting affirmative action and supporting harsh treatment of criminal suspects. But Stevens kept growing on the bench a term conservatives hate, but growing is the right word. Serving on the Supreme Court one sees the best and the worst from all over the country. One sees recurring problems. One sees how solutions don't live up to their PR. And Stevens was always big enough to learn and to grow.
Much of our protections for criminal procedure whatever the conservatives on this Court have left of them grew out of the Court's constant exposure to the unreliable confessions extracted by threats and lies. The Court learned as far back as the 1930s that the third degree which we rightly condemn when used in other parts of the world was doing considerable damage right here in America. And it learned that power put in the hands of police and other public officials is easily abused with terrible consequences for the innocent, for those who could be saved, and for the society that has to deal with the consequences of official abuse. Over the last sixteen years:
- Stevens led the Court in arguing that courts had an obligation, he phrased it more modestly to win a majority, to look at new evidence showing that a convict was in fact innocent before putting him to death.
- He argued that a state had no proper purpose in refusing to let a prisoner have DNA that remains in state files tested where it could acquit the innocent, and identify the guilty.
- And most recently he led a majority of the Court in beating back an effort to turn back to the dark ages of the third degree, now in the form of torture practiced on people accused of terrorism, whether merely swept up in the dragnet of a war zone, turned over by perfidious bounty seekers or otherwise in American custody.
Stevens had only recently joined the Court when it decided Regents of the University of California v. Bakke, the court's first big brush with affirmative action. Stevens wrote a dissent, joined by Chief Justice Burger and by Justices Stewart and Rehnquist, taking the position that the University program violated a federal statute. Perhaps because he had come to understand how intractable the problems were, how common assumptions and social practices routinely undervalued African-Americans, by the 90s he had become a supporter. In a case testing a federal effort to help minority contractors, Stevens wrote that the Court had disregarded "the difference between a "No Trespassing" sign and a welcome mat."
In his 80s he has become the Court's most reliable voice for fairness and justice, for the very notion that the law, and the Constitution, are not indifferent to matters of human decency.
John Paul Stevens will be missed.
Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.
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