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Stephen E. Gottlieb
March 9, 2010: Majority Rights
Senate rules require sixty votes to end a filibuster. With threats of filibusters, Republican senators have been blocking virtually all legislation in Washington, insisting that the majority of Americans have to live by the way that the forty percent minority are willing to allow.
In the past, the filibuster was rarely used. The big exception was its use as a major weapon of the segregated South in the 1950s and 1960s until after the murder of President Kennedy when President Johnson got the Civil Rights Acts of 1964 and 1965 through the Senate. It has never before been used as a guarantee of minority government, so that sixty senators could not go about the normal business of governing because forty senators could hold everyone hostage on everything from the routine to the critical. These Republican senators would sooner see the nation in crisis than that a Democrat should get any credit. There is nothing patriotic about that.
There was a time when people behaved that way – when South Carolinians decided that decades of northern compromises weren't enough and they demanded that they be allowed to win everything all the time. Lincoln's election was just too much – because they had lost. And they fired on Fort Sumpter.
Sore losers don't believe in democracy. They don't believe that the ballot box is supposed to settle anything. Their way or the highway. Sorry, I have zero respect for that kind of behavior.
There's nothing in the Constitution that provides for that. We do have a government of checks and balances. But the Senate is the balance, not a mere forty percent of it. And the damage is not just in the bills that are stalled in the Senate. It's also the way that bills have been reconstructed to survive what has become a minority veto of forty percent over sixty percent.
These Republicans have decided to bring the rest of the country to its knees so that they can protect the very policies that Democrats were elected to replace, to protect those who have all the money they can use, so that they can have even more, so that after all the damage done to America by the Republican version of no-holds barred capitalism, the perpetrators can take their ill-gotten gains off to tax havens and leave the rest of us holding the bag.
Holding the bag because the piper will have to be paid and the rest of us will pay it. We'll pay it by cutting Social Security. We'll pay it by living in an economy with fewer and fewer jobs. We'll pay it when bridges come down and separate us from the jobs we thought we had. We'll pay in it medical bills as our public health system deteriorates and disease becomes more rampant. We'll pay it to financial high-rollers who will find more and more ways to take our money from us. We'll pay it as refugees in our own country because we couldn't deal with global warming.
When Republicans were in office, Democrats accepted the notion that Republicans were entitled to confirmation of most of their nominees. When Democrats objected to putting ideologues on the bench, Republicans talked of a nuclear option and got Roberts and Alito on the Supreme Court, probably for decades.
It's time for a more constructive nuclear option – let Harry Reid and his colleagues in the Senate meet hardball with hardball. Democrats keep trying to govern while Republicans are making war on America and American democracy. It's time to fight back.
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 2, 2010: A History Lesson for the Radical Wrong
The new self-styled conservatives have been telling Americans that the Founders rejected central banks, that the Founders rejected business regulation, that the Founders rejected letting government into running businesses or providing services.
It's time for a history lesson. Who was it that authorized the first central bank in the US? Alexander Hamilton proposed it, the First Congress approved it, and George Washington signed it. Most of the men involved had been members of the Constitutional Convention. James Madison opposed the Bank and lost. But when he was President, he signed the bill for its successor, saying that he had been wrong. That was an instructive message. Madison told his countrymen that the Constitution was not the property of the men in Philadelphia who wrote it and that whatever he and others may have thought about the original meaning of the document could be changed over time as the people preferred to understand the Constitution and do things in a different way.
How about involvement in regulating business? Actually, when the early governments chartered corporations, it was common practice to put one or more government representatives on the corporate board. That practice continued for half a century until the country substituted what lawyers call general incorporation statutes. The purpose of those public representatives of course was to give voice to the public interest on corporate boards.
And regulation? Everything was fair game including wages and prices.
Before, during and after the Constitutional Convention, American statesmen from George Washington on down were deeply involved in figuring out how to develop the resources of the continent and improve the circumstances of its people. Washington surveyed several rivers and joined with people in neighboring Maryland and Philadelphia to secure government backing for efforts to open a route to the trans-Appalachian west.
These men were schooled in the mercantilist tradition, not capitalism. They assumed that government had the job of improving the lot of its people, not just standing back and letting history take its course. There was talk about free trade but in the 18th century it most certainly did not mean freedom from appropriate regulation. It was largely directed at tariffs, and the trade wars with Britain that led to constant argument about whether we should respond with trade restrictions of our own or open up our trade.
The anti-regulatory ideology grew up in the mid-19th century, fostered by British ideas that themselves had germinated after our Revolution, and pushed by people who had a lot to gain. Americans began battling to regain control over industry almost immediately, as farmers complained about discriminatory railroad prices for shipping their goods, others complained about monopolies which had never been popular in the US, still others fought the brutal treatment of employees. Anti-regulatory capitalism dominated for perhaps half a century in the entire two and a quarter centuries of our history.
Of course we have always believed in free men and women running their own businesses without being told by the British or anyone else that productive, and wholesome, industries could not be pursued. But we never bought the idea that you could do any darn thing you wanted without concern for your neighbors or the law.
Just the opposite. For the founding generation, the guiding star was the public good. Individual rights did not include the right to thumb your nose at economic regulation for the benefit of the rest of the population.
The next time you hear someone telling you that the Founders of this country believed in freedom from government regulation, just laugh. Theirs is ignorance masquerading as expertise, delivered with all the self-confidence of people who have never bothered to find out what actually happened, and who either don't understand or don't care about what happens to everyone else.
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 23, 2010: Bellyaching About Taxes
I'm getting tired of the constant bellyaching about lowering taxes, often by the same people yelling we should reduce the deficit or spend more for the military, wars in Iraq and Afghanistan, and sometimes both. Our tax structure is unfair, because the federal government lowered taxes by pushing responsibilities to the states, and states have done the same with local governments so that property taxes bear too much of the burden. But the notion that the top income tax rates are too high is just nonsense.
With the largest tax breaks going to very wealthy people, and only crumbs for the rest of us, their bellyaching about tax rates is cynical and unpatriotic. Send these tax hawks, so worried about the top tax rates, to live in the third world where their money will go further – send them abroad as foreign aid, while we happily do without their carping at paying for decent government. Polling data shows that half of US conservatives would plunge the country further into debt if they could have bigger tax cuts. They should be ashamed of themselves.
Americans pay lower taxes than all but a couple of industrialized countries, far lower than the EU. Our governments have been left without the ability to do what they should be doing. Americans love traveling in Europe and come back glowing about the amenities, the rail lines right to the airports, the local and intercity transport, the safety and cleanliness, the preservation of ancient structures and modern bridges. European governments take care of their people. We just let each other sink or swim and call it tough love when people work multiple jobs if they're lucky, go without health care, lose their homes when hit by unexpected medical bills, and hardworking people become homeless because minimum wages don't pay for housing.
The deficits Washington and the states face aren't an accident. They have been sold by tax hawks who want to take government away from you and me by starving it of the funds needed to do the job.
For most of us, tax reductions are crumbs dropped on our tables to make us willing to support much bigger breaks for millionaires. The real cost of those tax breaks to the rest of us, is far greater – to our health, our safety, the future of our children, and necessary government services.
Tax reductions won't do much for us. That they worked in the Kennedy Administration, or some other time, is irrelevant. Each successive break comes off lower and lower tax rates. And each time does more and more damage to government services, and increases the inequality of Americans.
Tax breaks no longer stimulate the economy. The Bush tax breaks stimulated the building of luxury homes and fueled the housing bubble. They did not stimulate the economy. Tax breaks have no real connection with stimulus. Money can be hoarded, spent on art collections, invested abroad, used for luxuries or off-shore diversions – anything but pouring the money back into the U.S. And when Americans are having a tough time making ends meet and have little to spend, the argument for private investors to invest here is weak.
The cynical irony of tax breaks is that people try to sell it by telling you it's your money, but they give your money to other people and starve the government of the funds to do a decent job at the things you and I need from government.
This isn't patriotism. It isn't good policy. It's corrupt. And it is not justifiable.
It's time for a useful nuclear option – let Harry Reid and his colleagues in the Senate meet hardball with hardball. They keep trying to govern while congressional Republicans are making war on America. It's time to fight back.
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 16, 2010: The Dangerous Game of All or Nothing
When the Republicans filibustered government to a standstill in the 90s, they took the hit for it. Now the Democrats seem intent on protecting the Republicans from having to filibuster. They are allowing the Republicans to pin the blame on the Democrats for failing to unite all of what were sixty nominally Democratic Senators behind a single bill or nomination. Somehow the Democrats learned the wrong lesson.
The loss in Massachusetts should free the Democrats from Mr. Lieberman and his idiosyncratic politics as well as from Nebraska Sen. Ben Nelson who got a one state privilege in the health care bill. Let fifty-one senators put together the best, most coherent bills they can and then let the Republicans filibuster.
Lyndon Johnson when majority leader didn't stop at crafting a civil rights bill to suit the filibusterers from the segregated South. He built a national majority and put real civil rights over the top. We need Democrats to stick to their principles.
Let me be clear. That is not necessarily the best way to govern in a democracy. The Democrats are right about that. In fact the issue is quite serious. Other countries have succumbed to dictatorship when sabotaging competing parties became more important than cooperation in a small "d" democratic way.
Americans have worried about threats from abroad rather than from within. But this scorched earth policy is very dangerous. It radicalizes people and legitimizes extremism. All or nothing thinking, our way or no way, is even more dangerous when coupled with guns and paramilitaries.
The combination of scorched earth extremism and guns has paved the way for thugs to take over American governments repeatedly. Before World War II, both Republican and Democratic machines took over cities and states by force, fraud and bribery. Our continuing distrust of parties and party bosses is a legacy of that era. The extremism of southern racists, through the KKK and similar organizations, were responsible not only for murders and lynchings but for systematically eliminating opponents and taking over the machinery of state government by force.
Paramilitary, and racist, organizations in the U.S. continue to train to save us from our own government when, in their own idiosyncratic view, the U.S. "goes too far". They object to people they call "14th Amendment citizens" – in other words, the Civil War settled nothing for them and they think only Caucasians are legitimate citizens. Such groups spawned people like Timothy McVeigh who bombed the federal building in Oklahoma City. The Iraq war created more paramilitaries. Revelations and indictments of Blackwater and Blackwater operatives reveal again how dangerous armed paramilitaries can be.
Yet the Republicans seem blind to these threats to democratic government. Their support for possession of weapons has no noticeable effect on crime but makes it hard to control domestic paramilitary organizations. They have refused to investigate armed paramilitary organizations here even after they shot and killed federal officers attempting to do their jobs. Their insistence that we disregard statutory and constitutional rules before spying on Americans or holding people in prisons brings home to America some of the prime tools of dictatorships. And their support for those who feel entitled to disrupt orderly gatherings only reflects disrespect for the rights of others and substitutes brawls for democracy.
We didn't elect Obama to be a Republican. But more important, for the sake of American democracy, it is crucial that Democrats find ways to force the Republicans to turn back from extremism before they do even greater damage. Let them filibuster. Let them pay the price. And let us restore sanity, and plain old American decency, to our political life.
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 9, 2010: Corporate Speech in Black Robes
It's good to be back, and after another successful fund drive. But Roberts, Alito, Scalia, Thomas and Kennedy continue to justify our worst fears.
Some of you will remember Tevye, in Fiddler on the Roof, singing "If I were a rich man" and saying "when you're rich, they think you really know." Tevye, of course, understood the fiction. But the five ideologues on the Supreme Court think corporations are the poor little orphans of American politics, shivering in the cold. To them, corporations have been robbed by a century of efforts to control corporate money and all will be right if we let these poor corporate outsiders back where they belong – running things.
There are some responsible arguments that well-meaning people have made in support of the decision, except that those responsible arguments run counter to what this judicial majority is about. This is a group of judges who have supported every prop for the politically powerful that have come before them on the Rehnquist and Roberts Courts – the statutory entrenchment of boss power over NY judgeships, the disenfranchisement of Indiana voters, the gerrymandering of Texas voters, let alone their attack on the Voting Rights Act. For these judges, this case is just another prop for the powerful.
Still, maybe the people can snatch victory from the jaws of the Court. Those who study election finance have been telling us for years that the best way to organize campaign finance is through public funding. Americans have been appropriately skeptical of politicians. Some of them are abominable. And every one of us, rich or poor, Republican or Democratic, have our candidates for abominable politicians. So we are very reluctant to support campaign finance. And of course those already in power are less than eager for reforms that could jeopardize their careers.
Perhaps the Supreme Court's decision, to snatch the people's remedy for improper campaign practices and put it out of our reach, will lead us all to understand the value of paying for the campaigns ourselves, through a system of public funding and related measures.
The basic point is that underfunded campaigns deprive us of the information we need to get a bead on whom to take seriously and whom to reward or punish. With public funding, candidates have less need to feel in debt to corporate dollars and their independently funded attack ads. In other words, the best remedy for political favor is to support real political independence. Candidates whose main task is to communicate with us, instead of corporate sponsors, are candidates who are much more likely to listen to us.
Unfortunately the presidential campaign fund is no longer adequate to fund a decent presidential campaign. And we have never provided for public funding for senate and congressional campaigns. Only a few states have done it at the state level. It's about time.
If we wise up about public funding of election campaigns, maybe we'll actually have reason to thank the black robed frauds in what should be the house of justice.
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 29, 2009: The Tax Revolt and Common Sense
A lot of people have been arguing that we shouldn't be "forced" to pay taxes for things we don't want to support. Some of the folks arguing that are people in office or running for office, usually as libertarians or conservative Republicans. Others have spawned revolts at the ballot box. Others are ordinary folk calling in to complain.
So let's talk sense about taxes.
First, it is important to understand that the argument that we shouldn't be "forced" to pay taxes for things we don't want to support has no logical stopping point. Roads, schools, libraries, public health, clean water, police, armies, all of us don't want to support something. And it simply isn't true that there is a collection of things we all agree about. We don't. The things I've listed seem special to many of us but disagreement is rampant anyway. So if there are some things you think government should do for you, you've really abandoned the no taxes without consent argument and you are talking about the justification for individual items. Demanding justification is very different from a sloppy you-can't-tax-me-for-what-I-don't-want-to-support argument. And that extreme libertarian position is obviously very different from the seminal American "no taxation without representation" position of our Revolution. We are represented, thank heavens, along with all of our fellow citizens who have different priorities about taxation. Anyone who has explored the writings of the Founders of this country knows that one of their strongest common beliefs was that there was a public good and government was instituted to advance it. And one of the things that George Washington did as president was to enforce the tax laws against those who disagreed with the tax on whiskey. Americans had, and have, an obligation to bend to the general good. To disagree about what that is, certainly, but the you-can't-tax-me-for-what-I-don't-want-to-support argument would have been anathema to the Founders who were actively involved in public projects to build roads, canals, banks, a postal service and other public improvements and public services.
Many of us could, and some do, get things privately. Some people can build cisterns, collect and treat their own water, send their children to private schools, afford their own medical staff or their own security forces. So some say everyone is entitled only to what they can do for themselves. There are places in this world where the rich simply wall themselves off from everyone else – but those places can be very dangerous; Haiti and parts of Central America come to mind. I think there is a strong moral argument against complaining that some people have greater need for public services. But there is also a practical argument – an argument about safety. The most dangerous places in the world are places where the gap between rich and poor is huge. It's a lot safer to put people to work and make it possible for them to earn a decent living and envision a brighter future for themselves and their children.
And it simply is not the case that public services can be provided by charity. It doesn't work. And in fact many of us who are quite willing to pay taxes are also not willing to be suckers and contribute to public projects that we think will benefit everyone if everyone doesn't contribute. Or if we think that what we can contribute won't make a difference. Economists, liberal and conservative, call that the free rider problem. The only way to serve the public is to expect the public, the whole public, to pay the bill.
So argue the particulars certainly. But these claims that you-can't-tax-me-for-what-I-don't-want-to-support only serve to mark the speakers as either uninformed or disingenuous.
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 22, 2009: Some Passivity We Can All Applaud
Many people now have told me that they dislike talk about global warming because it makes them sad. I understand and I get it. So those of you who prefer not hearing about global warming don't need to. Provided you are prepared to support the work of those who do, and to stand with the representatives who take the necessary action to prevent it. That is the moral and ethical point. Preventing it is the job of our public officials and representatives. You don't need to worry about it so long as you back those to do their job, who work to prevent it. Because the impact doesn't depend on whether we pay attention. But it does depend on action. So here's something to have our state representatives worry about for the rest of us:
My friend David Borton teaches energy engineering at RPI. David wrote in response that the NY Draft Energy Plan does not even mention passive solar energy anywhere.
Why does that matter?
As David put it to me, when you design a building to take advantage of the sun, that's as permanent as the building. No need to replace or buy anything more. The sun just keeps doing its job every year. For free.
I took a look at David's own home. He designed it so that it has one due south exposure. During the hot months here, the sun is actually so far north that a true south exposure means zero sunlight during the summer, no solar warming. But all through the colder months, the sun pours in, shredding the heating bill. There are other ways to take advantage of the sun in that simple, passive way. All it takes is thinking about it in the design stage. Government needs to think about passive solar when it lays out streets, orienting them to allow the builders and buyers to maximize their southern exposures. Or orienting government buildings to take advantage of the free energy out there. It's not rocket science. It isn't costly. And it can save a great deal of energy – and money – I think I've heard that the state might like to save some money.
The US has a great deal of influence in the world through what we build, what we sell, and through the example of what we do. We have an opportunity, even at the state level, to incorporate intelligent environmental design into the way we construct our buildings, our streets, our cities and our towns. And if we do that job well, we will have plenty to export to go with those designs.
What the sun provides does not have to be created by burning fossil fuels or building nuclear power plans. The sun doesn't pollute the air, the water or the tax bill. It's truly clean energy. We should be demanding that the state make every possible use of solar power available. So we don't have to pay for the state to burn fossil fuels and deal with all the damage the pollution causes, the carbon that is warming the world, or the particulates that are trapped in our lungs.
There is another benefit. As the state increasingly adopts sensible solar design and technology, the cost of similar improvements in our private facilities will come down. Architects in this area have poo-pooed the value of taking the environment into account, but if the state leads, more and more will learn the tools of environmental design, benefitting us all. And technology that is out of reach for most of us will also come down in price as it proliferates and give us all more opportunities not only to protect our own pockets but also to contribute to a sustainable world.
There's some passivity we can all applaud. So make our state reps do the worrying. And the benefits of solar energy will keep paying back in the New Year and every year thereafter.
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 15, 2009: A Conversation with My Doctor
I just had a conversation with a doctor who has been trying to keep me healthy for a while, a sweet man, and we often chat a bit. I asked him what he was rooting for in this health care debate. Mediare for everyone. He launched into how much it cost just in his office to deal with all the different insurance plans. They have a number of people whose full time job is to handle insurance. The cost to the practice is in six figures. With Medicare alone, they could cut that by a third.
He fleshed that out with examples of company requirements that flew in the face of the standard of care to which every patient is entitled, particularly requirements of pre-authorization whose only function is to delay needed treatment if the doctors are lucky enough to realize they have to get pre-approval.
So I asked him whether Medicare paid enough. He responded that it was certainly less than his fee but it was enough. He didn't need to become rich, but it paid the staff and other overhead and enough for himself and his partners.
Then I asked him about Medicaid. They paid so little, his office didn't bother to bill for it. If a doctor referred a Medicaid patient with a serious illness they would handle it pro bono. There isn't even a tax deduction. There has been a lot of discussion of patients going to emergency rooms. But I hadn't thought of the hidden cost to the doctors who treat patients who are uninsured.
And the change of Blue Cross from non-profit to a private for profit entity? He responded that before the change the company was much more reasonable in its reimbursement practices.
This has been a sea change among the doctors. In the 1960s, when the American Bar Association was joining the effort to make legal services available to the poor, the American Medical Association was fighting against the Medicaid and Medicare programs. But the deadweight of conflicting billing practices, the time it takes the doctors and their staffs to do the paperwork, instead of attending to their patients, has changed their minds. Many of them tell me that medicine used to be fun. They got into medicine because they enjoyed the practice. But the paperwork that takes time away from their patients and in some cases the expectations by the insurance companies that patients are only worth five minutes of a doctor's time, have taken the pleasure out of practice. So the various medical associations have changed their view. They are not afraid of government. They've learned to work with public programs.
When I served in the US Peace Corps in Iran, our doctor was provided through the US Public Health Service. Bob is still a friend and has gone on to a very successful career including a decade and a half as dean of a prominent medical school. Neither of us thought the government was the enemy or of each other as a government agent. Government, and the two of us, had jobs to do and we all did our best. As in private industry, some programs are well conceived and some are not. But generalizations about government or private industry are just garbage thrown around by people who don't know better or don't care if they do.
Stripping government of capacity to deal with problems is a serious problem. It means life much less fair, much less safe, and, in the case of health care, much shorter. All the rhetoric about the great health care in the US can't hide the embarrassing fact that life expectancy is much greater, for people of all ages, in other parts of the world. So we are either a great enough country to acknowledge reality and deal with it, or we are not.
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 8, 2009: Creeping Socialism
The Republicans have been describing a public option for health care insurance as creeping socialism. It occurred to me that I have been hearing that charge since I was a wee lad. So I looked back at the archives of the Times. It's hard to go back to when I was a boy, but back in 1936 former President Herbert "Hoover ... [said] ‘some principles ... cannot be compromised ... Either ... a society based upon ordered liberty and the initiative of the individual, or ... a planned society that means dictation no matter what you call it. . . . They cannot be mixed.' ... In his declining years ... Hoover ... [continued to worry] about 'creeping socialism.'" Indeed the "‘creeping socialism' of the New Deal" has been a common refrain ever since Roosevelt was in office. That included flood control and hydro-electric projects like the Tennessee Valley Authority.
The future President Reagan worried about "'creeping socialism" in 1961. Conservatives labeled antipoverty programs and Medicare "creeping socialism" in the 1960s. Consumer advocates were "creeping socialis[ts]" to the Advertising Federation chairman in 1973. Socialism seemed to be creeping all over the world by 1976 and hit sports big time. In the mid-70's, "golf traditionalists screamed that ... [the new U.S.G.A. handicapping system] was an index of creeping socialism". The 1982 Broncos' quarterback described the Players Association's demand for a percentage of the clubs' gross as "socialism". And Steinbrenner called revenue sharing among the clubs ''creeping socialism.''
And it's international. In 1981 Salvadoran oligarchs described a minimum wage and a six-day work week "as creeping socialism." In 1984, French politician Jean-Marie Le Pen called his election success the "creeping socialism" of the traditional French right.
In 1985, Pat Buchanan, some time Republican presidential aspirant, called New York Governor Mario Cuomo a creeping socialist for his support for the federal tax deduction for state and local taxes.
"The [1987] debates in Congress over ... housing bills were filled with angry references to ‘'interference in free enterprise,' ... ‘breaking down American self-reliance,' ... ‘creeping socialism,' ‘Communist subversion of the free-enterprise system' [and] accusations that the public-housing advocates were acting as ‘the cutting edge of the Communist front.'"
In 1993, a management executive told the Times "creeping socialism begins at the $5.05 level," referring to the minimum wage. Socialism reached cable in 1997 when a local cable company attacked a popular municipal video and telecommunications network as "creeping socialism."
Just last year the Bush Administration's efforts to stop the economic downturn were labeled "creeping socialism".
Just for fun I took a look at the National Review, although it has only been online a few years. In 1952 Senator Robert Taft defined "the fundamental issue of the campaign, as ... liberty against the creeping socialism in every domestic field."
In 2002, a contributing editor of the National Review, decried "the creeping socialism of the past 30 years." That is, mostly, Republican years. And the next year he wanted to "Disenfranchise nonmilitary government employees. Take away their vote [in order to squelch] the creeping socialism that is slowly throttling our liberties out of existence." In 2004, William F. Buckley Jr. hailed the vision of Isabel Paterson for a 1943 book attacking "creeping socialism".
For good measure let's add in the reservoirs that have delivered us clean water for over a century, the public health system that fights epidemics, the highways and bridges that have been facilitating the national economy – all public projects, all projects that help people do what they want to do without regard to income, occupation or other distinction.
Apparently conservatives are scared stiff about the possibility of lending a helping hand, so they can't stop crying wolf about "creeping socialism." It's time to outgrow childish fears. Americans don't shudder at the thought of making life better for everyone.
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, 2009: Humanitarian Policy, Population Growth and Global Warming
It is scientifically and humanly possible to increase the supply of food in this world. Some countries are approaching that issue by buying land in some of the poorest countries in order to raise enough food to feed their own populations and increase the supply of food in the country leasing or selling the land.
It is also scientifically and humanly possible to improve our ability to save many lives, especially in the poorest parts of the world as well as in our own backyard. And many private and governmental organizations are working on that effort around the globe.
But those humanitarian efforts are also tied to the fight against global warming. Increasing the supply of food and improving the health of populations, will have the predictable effect of increasing the population. Demographers talk about curves in which that impact will eventually respond to greater life expectancy, but that's a ways down the road. Meanwhile, an increase of the population will increase pressure on all of the resources that affect global warming. And global warming will have the reverse effect – it will reduce the livability of our planet, and the water, land, weather and air that make life possible or endurable.
It will be a cruel joke if our humanitarian efforts cause greater pain, sickness and suffering through the impact on the global population. Of course that is exactly what has been happening. Plainly that is not what is desired by all of us who try to alleviate what suffering we can now.
Here I want to refer to the abortion controversy but my purpose here is not to express or promote my own views. Both sides in that debate are trying to express humanistic views, about life and about not killing or torturing people, My point is only that Roe v. Wade changed the discussion from the debate about population policy that we were having before Roe to a debate about rights. And in the rights we have protected, we have not been able to protect the billions of people who will inherit an increasing inhospitable world, one whose warmer climate will sustain more disease, and less land and drinking water to provide the necessities of life. Those consequences are also part of the right to life that we all believe in. And somehow, our protection of the right to life that all of us assert has to protect the human beings who live on and will inherit this earth. The right to life is not separable in that sense. I don't believe that point separates people by their position on abortion but it does often get lost in the debate. And the debate turned population policy into one of the third rails of politics.
Some global warming is now inevitable because of the greenhouse gases already in the atmosphere. But scientists tell us that ways to slow global warming and limit how far it will go are technologically feasible. What is lacking is the political will.
Many of us got the point some time ago. But our politicians are afraid to take the necessary steps for fear of being electrocuted on the third rails of politics – taxing, spending and abortion.
We have to convince our representatives that we will back them if they use the tools of government to solve our common problem; that we support them when they use the tax system to steer us into different energy systems; we will support them when they arrange solar and wind systems in our communities; we will support them when they regulate to push industry in environmentally sounder directions, and by regulations protect those businesses that want to be greener but fear competition from those businesses that don't.
Global warming has been one of those overriding issues that have risen out of a scientifically informed public. Success requires pushing our elected representatives to take action, not just positions; to make effective rules and incentives to solve the problem, not just statements of support. Our families, our communities, our country and our world requires no less.
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, 2009: Do Prosecutors Really Have the "Right" to Frame Us?
Two men were sentenced to life imprisonment and served more than 25 years each before a prison employee, who had gotten to know them and their families, obtained a copy of the file and realized that the prosecutors had violated their constitutional obligations by not disclosing to defense counsel extensive information that tended to show they had the wrong men.
After their release, McGhee and Harrington sued the prosecutors for fabricating and using perjured testimony. The District Court and the Court of Appeals agreed they had a right to prove their case.
The Court of Appeals described the strong circumstantial evidence against someone else. It commented that " ... County Attorney ... [David] Richter was campaigning [for reelection] in the face of Schweer's unsolved murder." But instead of pursuing that evidence, the prosecuting attorneys turned to "Kevin Hughes, a 16-year old with a long criminal record" who had been picked up in Nebraska for car theft. The Council Bluffs detectives "promised [Hughes that] (1) he would not be charged with the murder, (2) he would be helped with his other criminal charges, and (3) there was a $5,000 reward available, if Hughes helped the detectives with the Schweer murder. Hughes agreed ...."
But Hughes answers left Iowa officials suspicious. Hughes repeatedly implicated others, but nothing fit the facts. So they supplied the facts and Hughes said, in effect, "Oh yeah, that's what happened." That is a textbook example of how not to do a witness interrogation. You can't tell what the witness says to save his own skin from what he actually knew. With the promises, the risks were even higher. Indeed one panel of a federal Court of Appeals described prosecutors' promises to witnesses as bribery, illegal and punishable if anyone except the prosecutors did that. What is such testimony worth?
Despite knowing that Hughes was untrustworthy, and that they had probably found the real killer, who, as plaintiffs' lawyers wrote, was "the white brother-in-law of a Council Bluffs Fire Department captain, ... [the prosecutors used] Hughes to frame Harrington and McGhee - two African-American teenagers from across the state line."
In the U.S. Supreme Court, the attorney representing the prosecutors told the Court that there is no right not to be framed by a prosecuting attorney. You heard that right. Hearing counsel say that the day before the argument, I looked forward to the backfire. He made the argument. There was no backfire.
The passion that came across in the argument was from Justice Alito who was afraid that prosecutors would be in great danger if they don't have the right to frame people. Roberts and Scalia clearly agreed. The women on the Court did their best to counter, with Stevens, probably, and Kennedy, possibly, on their side. Breyer was hard to read. Arguments are not always a reliable gauge of how they'll vote. But it was chilling that any members of the Court could defend a prosecutor's right to frame people. For anyone else, that's a crime.
The criminal provisions of the Bill of Rights were to prevent government, including prosecutors , from framing people. All the protections then known were included to avoid people being thrown into prison or executed for things they didn't do but whom the authorities, whether the king or lower officials, wanted put out of the way.
Perhaps Roberts, Scalia and Alito will wake up and remember that this is America and we are supposed to believe in freedom, decency and justice. For the moment, it seems the infamous Star Chamber has supporters on the Court.
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, 2009: Arar v. Ashcroft – Techniques of Tyrants Sanctioned in America
Maher Arar is a Canadian citizen. In 2002 his employer needed him back in Montreal from a vacation in Tunisia. Canadian officials relayed some erroneous information to American officials who picked him up en route in New York, imprisoned him, and denied him the ability to call or reach counsel.
He eventually met a Canadian consular official but the United States arranged for his "rendition" to Syria to have supposed information tortured out of him. No hearing. No opportunity to contest the charges. No opportunity to plead the Eighth Amendment bar on cruel and unusual punishment or the international Convention Against Torture which is part of American law.
In Syria he was tortured as planned. His torture was painful, continuous, and unjustified. After several weeks it became clear that he had been fingered erroneously and the torture, but not the detention in Syria, stopped. He was released to Canadian officials after a year in captivity.
The Canadian government admitted its own wrongful behavior and made a seven figure payment to Arar to atone for its behavior and help get Arar back on his feet. The U.S. has stonewalled Arar and now the U.S. Court of Appeals says no foul, Arar is not entitled to anything for the misbehavior of American officials.
I know, respect and like members of the Court of Appeals on both sides in this case. But there is no gainsaying the fact that this is a huge miscarriage of justice and a large tear in the fabric of our Constitution.
The Fifth Amendment reads "No person shall ... be deprived of ... liberty ... without due process of law." It has long been understood that the Fifth Amendment Due Process and Self-incrimination clauses protect against torture before trial while the Eighth Amendment protects against it after. Courts consistently hold that Due Process includes the right to be informed of charges, present witnesses and have the assistance of counsel. Those provisions and others in the Fourth, Fifth and Sixth Amendments, and elsewhere in the Constitution, set up a system of fair process designed to get at truth by accurate and civilized methods. It excludes entirely the techniques of tyranny.
But our constitutional safeguards embarrass our courts which have been taking them apart, authorizing the tactics of a police state. The Second Circuit has now held that Arar had no claim because it is not enough that our Constitution and law made his treatment illegal. The Court held that Congress also had to have specified what unconstitutional behavior he could sue about. In other words the Court held that the Constitution means only as much as Congress wants it to mean. To add insult to injury, the judges of our federal courts who make a great deal of their judicial "self-restraint" read the word "citizen" into an Amendment where it cannot be found so that other hapless individuals within our shores can be singled out for the grossest mistreatment.
Now all of this outrageous and unjustifiable misbehavior by American officials in the Bush Administration from the Attorney General down to the jailors in New York has been wrapped in a judicial bow of protection. I am embarrassed to call this "law" and ashamed that the lawless behavior of tyrants is protected in my country.
All of this is in the name of judicial self-restraint, avoiding second guessing the decisions of our elected officials. The judges say that they, as unelected judges, are too likely to make mistakes. Unfortunately they are most likely to get it wrong when they look for safety by circling the wagons with the very people for whom they are supposed to act as checks and balances. whether the governor has to balance the budget, and whether it's wise.
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 27, 2009: The State Budget Meets Law and Economics
New York and other states are struggling with their budgets. Governors around the country are slashing their budgets because they know that tax revenues are way down. Governor Paterson likes to say that New York has been "ground zero" for the stock market plunge and that is having an enormous impact on New York revenue.
Of course that means that all sorts of programs are being cut, from education to state services of all kinds. And programs throughout the state are struggling to make ends meet, inevitably by cutting their own budgets, laying people off and eliminating services.
To economists other than those blinded by ideology, this is just the opposite of what ought to be happening. Instead, the state should be running a full employment budget. That's a way of saying that when times are bad, the state needs to put its shoulder against the economic implosion and hold up its part of the economy. The state isn't like you or me when we lose some income. When an entity as large as a modern state government shrinks significantly, the tidal wave sweeps through the already weakened economy and makes the problem worse. Several times worse. That's what economists call a multiplier – the contraction of the New York economy will be a multiple of the contraction of the New York State Budget. It's not fiscally responsible to make bad times worse. It's not good economics. And it's not good sense. So don't do it.
But that's where economics bumps into law. The New York Constitution, Article VII, § 9 says:
The state may contract debts in anticipation of the receipt of taxes and revenues, direct or indirect, for the purposes and within the amounts of appropriations theretofore made.
There are some additional provisions but that's the gist of it. What does that mean? The provision authorizes deficit financing "in anticipation of the receipt of taxes and revenues." It doesn't say when or that the money has to come in before the end of the recession. And we know that the most likely cure for the deficit is to get the state back on its economic feet.
So let's take a look at the Court of Appeals. In the first of two cases brought under the Carey Administration, the Court of Appeals wrote:
if repayment of tax and revenue anticipation notes may only be made by creating ... a budgetary deficit ... [the next year], such borrowing ... violates constitutional limitations
In a followup case, the Court explained that the question is the honesty of the budgets, not whether there was a shortfall. It continued by pointing out that:
Depressed economic conditions can affect both sides of the balance. Catastrophies [sic], emergencies, or, in smaller scale, significant needs may arise, which, if unanticipated, may upset the balance on one side or the other. Indeed, it is unattainable for any budget plan, perfectly and honestly balanced in advance, to remain in balance to the end of the fiscal year. There must, as a practical matter, in every year be either a deficit or a surplus.
The Court's interpretation, in other words, was that the plan must be for annually balanced budgets, although honest mistakes will happen. It understood that economic conditions can change the balance.
The legal question is whether a plan to pull the state out of its troubles must be a single year plan? That's not solved by the general wording of the New York Constitution. And given what we have learned about recessions in the twentieth century, it's not clear that is the way the Constitution should be understood, whether the governor has to balance the budget, and whether it's wise.
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 20, 2009: To fight or not to fight in Afghanistan
I generally oppose war. Most wars are unnecessary and counterproductive. They not only kill, maim, create refugees and destroy families, but they often lay the seeds of future wars and create a fragile, dangerous peace. If you go to the movies, violence often seems decisive. Bam they're dead. But real life isn't so simple. World War I created the seeds of World War II. Historic conflicts in the area that was Yugoslavia created the seeds of the horror of ethnic cleansing and civil war. Each middle eastern skirmish and war has created the seeds for another. Wars tend to settle a lot less than the fighters imagine.
But I'm also a realist. I understand that some wars have to be fought. World War II was not a choice. And simply expressing unwillingness to fight allows others to reshape the world. So a description of America's defense perimeter in January 1950 that did not include Korea emboldened North Korea to attack. Sometimes the hawks are right.
But sometimes they're full of it. Iraq was a choice and we now know it was the wrong choice. There is a strong argument that the war in Afghanistan was necessary. But the wars in both Iraq and Afghanistan were poorly planned, resourced and staffed from the beginning.
Mistakes made in those early days still haunt us in both places. When our troops first rolled in, there was a possibility of resolving those conflicts in relatively constructive ways. In the early days of the war, a relatively open Iranian president sought rapprochement with the U.S. In a way that illustrates the possible gains of war – Iran saw the U.S. fighting in countries on both Iran's eastern and western borders. A sense of realism led Iran to think rapprochement with the U.S. had a lot of benefits. But the warriors in America scoffed at the very opportunity they had created. It's not surprising, in a way. If you think war is the answer, you are likely to miss the opportunities for peace, and the risks of continuing to fight.
After years of warfare, the enemy in Afghanistan has gotten stronger, and the willingness of the population to help us has declined – partly because they have seen people who cooperate with us murdered by the Taliban when we left to fight somewhere else. If we leave now, we will have strengthened the very people who pose the greatest danger to America.
In other words, the choices that President Bush had are no longer available to President Obama. What's left is a difficult and painful set of options. If Obama decides to fight, fund and staff this war, most of us will simply not have the tools to evaluate that decision. I own some peace signs but I won't stick them on my lawn. My heart will be heavy. But this time there isn't a clear answer.
Though I continue to believe that stronger American leadership in the Middle East could resolve some of the conflicts and create a peace that would make the Taliban and al Qaeda a historical irrelevance.
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 13, 2009: Global Warming – what we can do about it
A few days ago I had a chance conversation with a fine and intelligent woman who, nevertheless, did not want to hear about global warming because, she said, it made her sad. I understand those feelings. I prefer musicals to dramas for a similar reason. They're more fun.
I understand that global warming can seem painful and overwhelming. It's unacceptable to me, however, that my children and grandchild should become refugees, homeless or hungry because I wouldn't make the time to deal with the biggest threat to their future. But we can't cross over a bridge that hasn't been built. So it behooves those of us who are trying to confront global warming to make it hopeful and possible to deal with.
So let me bring up another conversation. I was sitting around with some friends, most of whom had served in the U.S. Peace Corps, so collectively we have been all over the world. And several in the group were actively involved in dealing with global warming either at work or as private citizens. One of the former Volunteers brought up the total destruction of the village in which she worked in Western Samoa, a village like all Samoan villages, on the coast because the interior of the island is volcanic and uninhabitable. It was simply washed away by storms. Sue was also pointing to the imminent destruction of a group of islands in the South Pacific. What could we do?
As members of the WAMC audience you have heard a great deal about global warming for several years. So although I could talk about global warming in my commentary that is preaching to the choir. Indeed that's a lot of what people do who are trying to make a difference. We preach to the choir. We put together meetings and events about global warming and we invite the world to come listen. So the choir comes. But that doesn't expand the audience.
So let me make a different suggestion. Each of us is a member of some organization where it is appropriate to have a discussion about topics of relevance. It could be your church or temple, a men's or women's club, a school or workplace. There are many people who can speak on the subject. The New York Secretary of State has a coastal management task force that is trying to figure out what to do with the lengthy New York coastline that will be inundated by the rising sea waters. There are people in this area who have worked with Al Gore to spread the inconvenient truth about global warming. There are scientists at the universities nearby. To find people locally you can start with http://www.350.org/ or http://theclimateproject.org/ , click on the American flag and then the button that says request presentation.
If we are going to make this globe habitable for our children and our grandchildren, we have to adopt the mantra that yes we can. We will and we must. Policies have to change. And to make them change we have to get across to more and more people that this is the top priority of our generation. It's our problem. It's our battle. We have no honorable choice but to fight it and win 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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September 22, 2009: Global Warming is About Patriotism
One of the things President Obama talked about yesterday was global warming. Let me add a few comments. Global warming is about patriotism and whether our children, grandchildren, and the children and grandchildren of our fellow Americans will have water to drink or food to eat, whether their homes will be destroyed by hurricanes, tornadoes and floods, whether they will be refugees in our own country.
If that sound like too much we'll go through that list – but serious as these are, NASA scientists have been putting numbers on the risk that the earth itself will become too warm for human habitation. Based on the science, they are making it clear to anyone who is willing to listen, that the point of no return is fast approaching. So, OK, let's talk about the smaller issues.
- Changing climate patterns make drinking water an issue by extending droughts and making new areas arid.
- The warmer climate makes food to eat an issue by inundating other places with water that drowns crops, carries topsoil to the oceans, and exposes crops to new damage and disease. It's not just the animals that are endangered but also the forests and vegetation we need.
- The warmer globe threatens our homes by making storms more violent and frequent. So-called hundred year events happen now almost routinely. Twentieth century flood control measures are proving woefully inadequate to more serious storms and flooding.
- Rising oceans will make tens of millions of Americans refugees. If you're sitting on higher ground, think of the refugees who will be camped on your doorstep – if they're so polite as to camp. Natural disasters can change the rules as people struggle to survive. For millennia, the search for food, water and land was a constant source of invasion, war, murder and rape.
- Higher ground may not be habitable either. There may not be drinkable water on that high ground and the homes may have been destroyed by storms.
- As the earth warms up, we are threatened with new forms of diseases for which we don't have immunity. As Native Americans were decimated by smallpox, brought to these shores by European settlers, we too will face devastating pandemics made possible by new higher temperatures.
It's difficult to get our minds around the enormity of the problems created by global warming. But the old cliche of crossing the bridge when we get there is totally misleading. As we start seeing the problems in our own back yards, and come to understand that the droughts, storms, floods and diseases are not just random acts, but all related to global warming, it will be too late to stop them. The only way to stop global warming is to take forceful action – now.
I own a Prius but that won't stop global warming. Stopping global warming requires government action. Governments were created to take care of the problems we couldn't solve individually. None of us can sit out global warming. There are some whose attitude is to let the deluge come once they're gone. They cannot be allowed to hurt the rest of us and our children. We all have to share the effort to get this right. We all have to pay taxes and look at windmills and solar collectors. We cannot approach global warming like just another part of life – our lives and the lives of our children will depend on solving this problem and there is no time left for the politics of not-in-my-back-yard – the solution, if there is one, has to involve us all.
Dealing with global warming requires major effort. It requires all of us to be patriots and put our country first.
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 8, 2009: Health care
I've been thinking about the health care debate. Some of it has been dishonored by thugs trying to drown out speakers, and people with no sense of integrity making the most outrageous and false claims about it. They dishonor America.
Some of the health care debate has been shadowed by claims that we have the best health care system in the world and therefore we should keep it as it is. Let's be charitable. That means that because people love their country, therefore they are unwilling to confront the possibility that some things are wrong. It does not mean they have studied or experienced health care somewhere else. So OK the translation is they are flaunting their patriotism. But let's also be clear that those who insist that we are the best and therefore we shouldn't change a thing are actually telling us to stick in a soggy rut while everyone else goes driving by. That is a form of suicide under the banner of patriotism. Real patriots are willing to look at the problems.
Actually there is a lot wrong with American health care. Doctors have been filling my ears with their complaints about the system, the time that they take not to deal with their patients but to deal with the insurance companies, their problems in getting the health care they want for their patients. We know that lot's of people are not covered by any insurance and don't have the benefits of a primary care physician. We know that the longevity of Americans is far less than many other countries in this world, both at birth and in later life. We know that health care creates a problem for firms of different sizes who have to compete with each other over health care and compete with firms and countries where health insurance is not a cost of doing business. We know that American's largest corporations have been advocates of changing the system. Claims that everything is fine will stick American health care in a soggy rut while the rest of the world drives on.
Instead of looking at evidence, doctors are forced to look at company formularies about what a particular patient's insurance company will pay for. They are not paid for the outcomes, but paid to do procedures. That payment system pushes the entire health care system toward unnecessary expenses and away from the basics which are not covered or compensated. The system skews the profession toward specialists at the cost of squeezing out the basics. Nobody has the time these days to take a basic history of what happened to the patient with the result that there are far too many mistakes made by people in a rush, a rush to see the next patient. And the quick resort to specialists by the shrinking base of family and primary care doctors means that lots of problems fall in between the cracks – when your problem is not something that this or that specialist knows about your problem is likely to be overlooked or mis-diagnosed. Claims that everything is fine will stick American health care in a soggy rut while the rest of the world drives on.
We have lots of impressive technology. And we keep talking about how technology is making things better. Actually, technology is too often used to shift costs rather than reduce them. So it takes less of the doctors' time to order tests than to spend the time examining the patient and getting the full history of what happened, but sending the patient for tests as a replacement for a thorough workup takes more of everyone else's time. Whether we get the benefits of technology depends on how we use it. And it is often misused as a substitute for the basics. The doctors know that. Those who study the system know that. Fancy machines do not mean we'll get good care.
Claims that everything is fine will stick American health care in a soggy rut while the rest of the world drives on.
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 1, 2009: Chautauqua and Ted Kennedy
One of the things my wife and I did this summer was to spend a week visiting Chautauqua. In the far western corner of NY State, Chautauqua was formed a century and a quarter ago as a summer school for Protestant Sunday school teachers. By early in the 20th century, Chautauqua had added a full cultural program including a symphony orchestra, opera, theatre, dance, music school, and sports programs, coupled with a day camp for children, and it broadened its welcome. As a friend of mine once said "Chautauqua is heaven."
After World War II, New York City school teachers, mostly Jews, discovered Chautauqua. My dad, a school teacher, started taking us there in 1955. We were welcomed and spent many happy summers there; dad spent his summers at Chautauqua until at 93 he no longer could get around.
In my first summers there I often stopped by the open amphitheatre on Sunday evenings when they held the Sacred Song Service. It was not my service, of course, but it was rooted in values I shared, and I'd listen for a while, or join my friends.
A few years ago, a college classmate invited my wife and I to visit them in Chautauqua. The night we got there they had several people over to dinner and introduced us to Rev. Dr. Joan Brown Campbell, Director of the Department of Religion at Chautauqua. Dr. Campbell was leading Chautauqua in what they call the Abrahamic Initiative. Some of the countries' great religious teachers came to Chautauqua that summer to describe the common patrimony and values of three of the world's great religions, to help us understand the shared values of these great religions.
This summer we arrived in Chautauqua on a Sunday and in the evening I stopped by the Sacred Song Service. The amphitheatre seats about 5,000. I don't know how many were there that evening but there were people in large numbers throughout the amphitheatre. This time I heard this audience reciting passages of the Bible, from the Old and New Testaments, and most wonderfully for this largely and historically Christian audience, from the Koran.
I had always known Chautauqua as a kind, tolerant and loving community. But the willingness of this American and largely Christian audience to be lead and inspired by passages from the Koran struck me deeply. How far had they come.
People come to Chautauqua from all parts of the country as they have been coming for generations. There are all kinds of religious views to be found there. The broadening of its vision reflects the best traditions of our country. I found myself very moved. Though the text is not "my" text, the embrace is ours, the welcome, the understanding that all the world's great religions share the great message of love.
I found myself thinking about that message as I watched, in tears, the funeral of Senator Edward Kennedy. For it was clear that Teddy Kennedy's vision for America, and for the world, included all of us. We have all been blessed by his life.
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 25, 2009: Innocence and Evidence Still Don't Count for our Supreme Court Injustices
With a new term of Court about to begin, it is worth spending a moment on one of the cases it decided late last term but that was pushed out of the way by other major news events. The Roberts Court still could not get it through its head that innocence matters. Osborne, an inmate who sought access to DNA evidence, may have been guilty. But the Roberts Court simply decided that once convicted there is no right to get DNA to prove one's innocence.
The Innocence Project, operating out of Cardozo Law School along with several satellites around the country has secured the release of a substantial number of people who had been convicted, many on death row, through the use of DNA testing with new and improved testing techniques.
Now the five self-styled conservative "justices" have decided once again that there is no need to conserve the life or the freedom of people who have been falsely put away. I see nothing in that decision that is either conservative or just. All they can say is that they and the society they sit on top of are and should be too busy to notice if a miscarriage of justice has taken place.
This is a continuation of the sins of the Bush White House. We lose the moral war because they deny the relevance of morality. So-called conservatives claim that it is activist and illegitimate to notice the immorality of confining or executing people who are innocent. Well then, give me activist judges who care about decency and justice.
"Justice, justice shalt thou pursue" the Bible tells us in Deuteronomy 16:20. These are the conservatives who have been telling us for years that religion belongs on the public square, supported by the state. But religion for what? Certainly it is not attached to any sort of moral claim when people in black. robes sitting on benches in courthouses show us all the sophisticated morality of people in white hoods and robes burning crosses.
Four justices dissented. It's always the same four on cases that address innocence – Stevens, Souter, Ginsburg and Breyer. They apparently frighten some self-styled "conservatives" because this quartet of justices actually notice and care about justice. What a shame that justices should care about justice.
Oh, but you say the Constitution doesn't say anything about DNA. Indeed. And if you want the Constitution to spell out with precision every term invented after the death of the founders you will reduce the Constitution to ashes, no longer good for anything. Of course that is pure hypocrisy since the self-styled judicial conservatives actually manage to find lots of things unconstitutional despite the absence of specific eighteenth or nineteenth century language. It's just that they pay no attention to morality or justice and focus only on the effect on their friends and allies, on putting Bush in the White House, supporting his and Cheney's policies, and anything that will cow the people by giving the police unaccountable discretion, even if that means throwing a young mother in jail for not wearing a seat belt, or protecting a corporation from damage awards, or from regulation against the kinds of misdeeds that ended up derailing the economy. This isn't about law. It's about whose ox is gored. The self-styled conservatives are not above throwing the law to the big fish though that has nothing to do with law, justice or morality.
For these justices, the abortion controversy has been a front behind which to hide the unfairness of everything else they have been doing. Fundamentalists, as much as any of the rest of us, should be ashamed of these people.
This Court is an abomination and should be replaced.
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 18, 2009: Our travels and global warming
We spent some time this summer in Chile. For part of that time we went down to Patagonia. We got down as far as 53 degrees lattitude. In the southern hemisphere, that's like the latitude of James Bay, Canada in the northern hemisphere. Our objective was Lago Grey in Torres del Paine, a Chilean National Park. It's supposed to be cold. And it was their winter. A Chilean researcher asked if it was cold enough for us. I said yes but actually it was in the 20s, hardly a bitterly cold day for those of us who live in the WAMC area. More significant, the guide at our hotel was explaining to us how far the glacier had retreated in just the last 10 years. It takes their boat a half hour more to get across the lake to the glacier. Out there, deep in the natural world, and as far away from urban life as you can get, they were telling us about global warming and the effect it is already having on them. It is affecting the glacier and wildlife that are objects of tourism. And it is threatening their water supply.
A few years ago, we traveled to Africa. With a colleague and friend who is native to Kenya, we headed for a Kenyan wildlife sanctuary at the foot of Mt. Kilimanjaro. Perhaps you've seen the iconic photos of the ice cap at the top. It's mostly gone. For the people in the area that has tremendous significance. All of the water in the area is provided courtesy of the glacier atop Mt. Kilimanjaro. They were telling us about global warming.
Our son went to see Glacier National Park in the U.S. When he was there the Park Service had locked it down to protect the delicate ecology which should have been ice at that season but was mush instead.
Islands in the Indian and Pacific Oceans are expecting to go under water and their leaders are actively looking for places to resettle their people. Planners in Fiji are trying to cope with damage to its tourist attractions because of global warming. Canadian ski resorts are struggling with global warming because good snow can only be found on higher ground.
Somehow it seems that people all over the globe are talking about the impact of global warming on them. But in the technologically advanced USA we have an enormous industry committed to ignorance, bound and determined to poo poo the threat of global warming that people understand on remote islands, national parks hemispheres away and third world countries.
This isn't a trivial issue. As global warming makes refugees, and wars, around the globe, the US will have more than its share of problems. Many millions of Americans live at elevations only a few feet above sea level, at the mercy of rising waters. We'll have our own refugees escaping our coasts and rivers. And that will prove only a small part of the pains that warming will cause. It is time for America to get serious about global warming. And yes, we will all have to share the pain.
There is really only one remedy that would actually make a difference and make it quickly. That is an energy tax. If we are not willing to bear a little burden to save the future of our kids and grandchildren, what are we anyway?
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 11, 2009: The Warren Court
Judge Sonia Sotomayor has now been confirmed as a Justice of the Supreme Court. I want to offer a reflection on what a Justice of the Court should do.
The conservative bete noire has been the Warren Court. They regard the Warren Court as activist, with judges who applied their own philosophies to the law. Conservatives feared Justice Sotomayor might be like the Warren Court and they regarded that as an argument against her confirmation.
It’s not hard to show that the Rehnquist and Roberts Courts are equally “guilty”, if that’s the right word, of applying their own philosophies to the law. Actually it’s almost impossible for judges to judge cases without being influenced by their own personal philosophies. We call that exercising judgment. And that’s why finding out what a judge stands for is crucial.
Which leads me back to the Warren Court. What after all was wrong with the Warren Court? No one in public life will attack that Court for declaring segregation inherently unequal. As the price of unanimity, the Court agreed behind the scenes not to rush the South to change, so one might attack the Warren Court for failing to enforce its decision in Brown. It became the Burger Court’s job to enforce Brown. But that’s not the conservative complaint.
Some people resent the Warren Court because it enforced a wall of separation between church and state, holding that our founders sought to protect religion from government. Many churches agreed. But those who sought government support for specific religious messages created the powerful, but false, slogan that the Court was against God. Those same critics attack government for getting everything else wrong, but insist that government can be good for religion. It’s a free country – they can believe that nonsense.
The big reason, though, that so many profess to loath the Warren Court is that it insisted on civilizing the way police work is done in America. No torture, no jailhouse beatings, no coercing people to make unreliable confessions, no kangaroo courts, no assuming people are guilty and leading them straight to the chair in little more than legal lynchings. The Court insisted that if we are going to take away peoples’ lives and liberty, police and prosecutors have to get real evidence and prove their case. They would have to behave according to the standards that we expect of the rest of the world and not succumb to the techniques of terror, abuse and misbehavior with impunity that we condemn around the world. Heavens, the Constitution says we are entitled to due process and the Warren Court actually demanded it.
No beatings, no suggestive line-ups or convincing witnesses to claim what they didn’t see. Honest prosecutions, with real evidence.
But it has been clear in the battles over Guantanamo, Abu Ghraib and presidential power to imprison people without the benefit of any process for as long as he wants, that a very large segment of this country doesn’t get it. Obama is treading lightly because, for that portion of the country, the risk of being called weak is much greater than the risk of being called abusive. There are many people in the prior Administration who behaved as badly as people we have prosecuted for war crimes. But the real struggle is larger than that, much larger. Too many people have yet to yet to ratify the Constitution, the one with ALL of the Amendments, including the due process clauses enshrined in two separate amendments to the Constitution.
I think we have to start taking that issue very seriously. And there’s no better place to start than by standing up for the Warren Court. It was an American court. It took our Constitution seriously. And we deserve more judges like 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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June 30, 2009: Court Stabs Integration in Ricci v. DeStefano
The Supreme Court has decided that New Haven could not throw out the firemen's exam because no African-American and only two Hispanic-American test takers passed the test. According to the Court it wasn't discriminatory because the test wasn't intended to be discriminatory.
Unfortunately it is easy to whitewash real discrimination by saying "he didn't mean it" – a formula we all learned as kids. And the Supreme Court has been very consistent in saying no, they didn't mean it, in situations in which the intention to discriminate was obvious. Perhaps just as unfortunate, the only way to check the hypocrisy of denying the obvious, is to look at what is obvious. But now that's gone.
The Court wants us to believe that there are right and wrong ways of dealing with segregation and discrimination. In fact this Court has turned its wrath on every way of dealing with the problem for the past two decades. It blocked enforcement of anti-discrimination laws by imposing requirements for proving intent that insulated the most blatant forms of discrimination from legal redress. It blocked even the most mild forms of affirmative action and voluntary efforts to bring us together. And it has been finding parts of a growing list of anti-discrimination laws unconstitutional. Chief Justice Roberts says it is a sordid business to divide us by race – it is indeed a sordid business to prevent Americans from bridging that divide.
It seems to many that we have been dealing with segregation since 1954 and now it's time to get back to normal and stop worrying about integrating America.
Actually that's wrong on both ends. Integration has been an issue in America since the founding. Nineteenth century public schools were explicitly designed to bring Americans together by class, national origin and gender. To sustain an effective armed force, the military grappled with integrating Americans across national origin and native language almost as long. By the turn of the twentieth century, business was not only reaching out to customers of all kinds but developing programs to bring together an increasingly diverse immigrant work force. Their efforts were not conceived with time limits. Unity required more than lip service. Americans knew that republican government depended on coming to grips with our common humanity. So we have been dealing with integration for a long time - just not with regard to race..
The view that we have been wiping out discrimination ever since 1954 is also wrong. The goal of racial integration has been undermined since Brown v. Board, by explicit federal policy. It is well documented that federal agencies refused to guarantee loans and discouraged banks from making housing loans to blacks at the very same time that other federal, state and local agencies were busily involved in building highways to the new suburbs. Guess what that did to school integration.
To make things worse, so-called "urban renewal" tore down black neighborhoods where the working poor had established, functioning communities, and replaced them with high rise and dangerous housing units wherever we whites decided to put them. Banks, with federal encouragement, redlined the changing inner cities, condemning them to deepening poverty and despair.
So while some blacks managed to climb on the new interracial ladder created in the wake of Brown, others found the climb to a decent living ever more difficult – and segregated. The Court doesn't call it segregation because the housing and lending decisions weren't made by school authorities. But just drive around and see the wilful blindness of the Court's majority.
So the Court compounds the error. By accusing everyone who tries to build bridges of conscious racism, the Court manages to protect the divisions among us that most of America wants to tear down. Truly its justice has been blind – blind to American traditions that have helped make this the great country many of us think should be our birthright.
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 23, 2009: Sotomayor's Resignation from a Women's Club
Judge Sotomayor's resignation from a women's club is the result of the typical conservative failure either to understand or support the fight against discrimination. Saying that women or blacks cannot get together to support each other because we have insisted that whites and men admit women and blacks is like saying that with the score 89-0 we'll all play fair from now on.
Women's clubs were formed for the obvious and entirely appropriate reason that women were starting from behind and needed a way to get into the game. We celebrate the ways that Irish, Italians, Jews, Poles, Germans and others resorted to self-help when they came to these shores. But women, blacks and Hispanics, against whom discrimination has lasted much longer in this country, are to be forbidden self-help. These conservatives criticize blacks who do not give back to their communities. But when women and minorities try to give back, to help others behind them, these so-called "fair minded conservatives" turn on them for racism or sexism.
The game is simpler and much more sinister than their rhetoric makes it appear. What has happened is that conservatives have learned to manipulate the language of equality to stop the process of equalization. These conservatives are fighting to retain what they think are their privileges against the possibility that their privileges will henceforth actually have to depend on their qualities, not the ways that they have learned to keep people out, to prevent people from access to the training and the experience and especially the contacts that ultimately make assimilation possible. They hide behind the language of treating everyone equally when in fact they are dealing from a stacked deck.
Let me take you back to 1953 before Brown v. Board was decided, before the momentous decision that required desegregation of public schools in the United States. The Court had already decided that blacks could not be denied an integrated instate graduate or professional school education, access to a previously white law school or medical college, even if the state offered instead to pay the student's tuition to the best schools in the country so long as they were somewhere else. Harvard, fine, that's in Boston. But the Court said not good enough. Nor could the state create a parallel university with all the same professors but in a separate campus – same quality but separate – separate but equal as the expression goes. Of course nothing had been equal in the past but as the legal challenges of the NAACP picked up steam, the southern states started promising to make up for lost time and in a hurry.
No thanks, the Court said. Part of what would be missing was intangible – the opportunity to get to know people with whom these young men and women would have to work or contend with, or for the law students, the judges they would have to appear before. They wouldn't have the chance to make the friendships and form the contacts on which careers are based. Long before Brown, the Court had already made it clear that separate was inherently unequal – for very practical reasons.
But recognizing that women and blacks did not have access to these contacts, conservatives decided they'd squeeze the bottleneck as tight as possible – few without those experiences and contacts would figure out how to succeed at the white man's game and white male privileges would survive. Women, blacks, Hispanics and others decided to make up for what they hadn't experienced by organizing clubs to pass on how to handle their opportunities.
So the decision of Judge Sotomayor that I regret is not the decision to join a women's club. It is the decision to resign, to close one channel of passing on the keys to success. By the way, I have a daughter who is about to start teaching at the college level, and a twenty-one month old granddaughter who learns at a prodigious rate. You go gals.
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 18, 2009: Hillel and the NY Senate
Around two thousand years ago a great Jewish Rabbi said
If I am only for myself,
Who am I?
If I am not for myself,
Who will be for me?
Looking at what has been happening at the New York State Senate through the lens of Hillel's words leads me to a somewhat more nuanced and tolerant reaction to what has been going on.
We Americans tend to be all or nothing kinds of folk. We think of people as either good or bad and if people are bad, throw the so-and-so's out, lock em up, get rid of them. If people are selfish, proud, ambitious for themselves, then they cannot be servants of the people too. Except of course we are worshipping what does not, indeed cannot exist. Politicians cannot be unambitious or modest. And they have to look out for themselves.
But those faults, and they certainly are faults whenever politicians let those desires get out of control, are not inconsistent with a real potential for good work too. Only God and the Devil are good and evil through and through.
So we should not be surprised to find that the two men who have thrown the state Senate into turmoil have done things that we can all approve, have worked for causes larger than themselves. And I think the untold story here is the maturation of the Puerto Rican community in New York. They're asking through these two men for a piece of the action. Just as the black community and all of us who have worked so long for civil rights have been celebrating the election and savvy of our first African-American president, and the rise of our first African-American New York Governor, embattled though he is, the Puerto Rican community sees itself as entitled too. These may be the wrong guys. But we didn't pick them.
Of course many of us wanted something different. Some of us want to wait until the 2010 elections so the Democrats can control redistricting. Others are upset because the turmoil comes at a bad time for our particular agendas. As it happens, I wrote one of the two senators about an issue that I knew he cared about in the past, trying to find a way to bring the civil liberties issues to the successful conclusion we envisioned so recently. So, yes, I'm one of those discomforted by the upheaval.
And yes, both men have done bad things in their personal lives and ethics. Neither is entitled to a pass on that score. But politics is about competing agendas. The mark of a good politician is to be able to handle those competing claims. And there's no need to see each other as devils.
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 16, 2009: The Iranian Election
The struggle over what is obviously a stolen election in Iran reminds me of a conversation I had with an Iranian student in Shiraz in the mid-1960s. Shiraz is in the province of Pars, and only about 25 miles from the ancient capital of Persepolis, the center of the ancient Persian empire. This student was telling me that the Shah's father had his own grandfather killed. And he immediately assured me that he would have done the same thing because his grandfather was an enemy of the Shah.
The Iranians can be a thoroughly charming, warm and caring people. I remember many of the people I knew over there with great fondness and respect. But the Iranians have endured centuries of brutality at the hands of a succession of rulers, some foreign, some home grown, some protected by western powers, that have left deep scars.
When an Iranian means to promise that he or she will do something, they say, in farsi, "on my eyes", a reference to the mogul rulers who gouged out people's eyes for disobedience. On my eyes.
Americans argue about whether we should teach our children the history of other peoples as if knowledge will destroy their patriotism. Ignorance can destroy our country. History matters regardless of whether we are aware of it.
The Iranians had one good chance for democracy, in the early 1950s. They had free elections, and a democratically chosen Prime Minister. Political scientists tell us that one of the most important indicators of the likelihood of a democratic future is the length of a democratic past. They might have built one.
Iran had been occupied by England and the U.S. in World War II. The two countries coordinated to control Iran's oil. Iran had a border with the Soviet Union, clearly the superpower in the region. And it had a Prime Minister who tried to be conciliatory to the Russians.
But the Eisenhower Administration decided that was unacceptable, and that the Prime Minister was too far to the left, so a coup was engineered in the American Embassy in Tehran. Americans didn't know or didn't remember but no Iranian forgot. We are still paying for that one mistake more than half a century ago and will likely continue paying for some time. Foreign policy is about understanding the nationalism of other people, not just celebrating American virtues. We turn aside in ignorance but we pay the penalty regardless.
I think the only things that can save the Iranian people and us, is for the Iranian military or the Iranian clergy to fight among themselves. Many democracies have emerged out of the conflict among dictatorial rulers. But short of internal dissolution among the leadership, I fear for the people who may count on the forbearance of the rulers as they come out into the streets.
Thirty one years ago a lovely Iranian professor was a house guest of ours when we lived in West Virginia. We last heard from her when she was desperately trying to get her brother out of the country. I have not been able to get word of her since, and I've been too scared for her to write her, if she and her husband are still alive. There were demonstrations then too, and I'm sure the two of them were in those demonstrations. And the authorities, though they called themselves religious, were no kinder than the mogul rulers.
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 19, 2009: Javaid Iqbal and the Bill of Rights
Many of us believe this is a free country because of our Bill of Rights. Tyrants and dictators cannot do what they do to so many unfortunate people of this world. The Constitution and the courts would stop them, and keep us free.
There is controversy over whether the Obama Administration should prosecute those who authorized torture and brutality. But plaintiffs with their own private attorneys have been going to Court trying to find justice, appealing to those people who sit on the Supreme Court and whose very title is "Justice."
Javaid Iqbal, is Pakistani, a Muslim, who has never been accused or charged with any terrorist activities although he pled guilty to an immigration charge and was returned to Pakistan. As Iqbal's case went to the Supreme Court, the question was whether it should be dismissed on the pleadings without discovery or trial.
Here is some of what Iqbal told the courts. On January 8, 2002 he was then taken to a room where 15 officers were waiting for him. Several picked Iqbal up, threw him against the wall, kicked him in the stomach, punched him in the face, and dragged him across the room. The officers screamed at Iqbal, that he was a "terrorist" and a "Muslim." Iqbal was then taken – shackled and chained around his arms, legs and waist, bleeding from his mouth and nose – to a maximum security prison.
As the District Court summarized the complaint, Iqbal and a co-plaintiff were "(1) kept in solitary... (2) prohibited from leaving their cells ... more than one hour each day with few exceptions; (3) verbally and physically abused; (4) routinely subjected to humiliating and unnecessary strip and body-cavity searches, (5) denied access to basic medical care; (6) denied access to legal counsel; (7) denied adequate exercise and nutrition; (8) housed in small cells where the lights were left on almost 24 hours a day; (9) deliberately subjected to air conditioning during the winter months and heat during the summer months; (10) deprived of adequate bedding or personal hygiene items; and (11) ... deprived of adequate food, ... [so that] Iqbal lost over 40 pounds (and suffers from persistent digestive problems)."
None of this, we now know, has been an aberration. Across the world people have been mistreated in the name of the United States out of the very playbooks of the regimes we most despise. And as we have learned, these were not merely isolated instances of officers out of control. Instead this attack on the system of justice has been organized at the top.
All this can be true, said the Supreme Court. But there is an alphabet of immunities to protect the perpetrators. The Court said Iqbal's allegations against former Attorney General Ashcroft and former FBI Director Mueller weren't "plausible", so Iqbal could be denied a chance to prove it. Those in charge could not be sued for the behavior of those under them. And they could not be sued for discrimination for setting up a program which treated all Muslims in custody as if they had already been convicted of heinous crimes – which Iqbal and many others like him never were or would be. Not "plausible" despite years of painful revelations.
So does anything differentiate the majority on this Court from the kept courts of foreign kleptocracies and dictators, putting party and connections above law and justice, fostering a culture of impunity by those with power or connections? There were no immunities available to protect President Clinton when Paula Jones' lawyers went on a fishing expedition to see if they could trap Clinton into a lie, any lie, to protect himself from their inquiries into his private faults. But immunities abound to protect those who violate the most basic liberties. According to these officeholders there is nothing wrong with discrimination so long as it is practiced by the right people. Bush v. Gore was not an aberration.
The protections we have learned to believe in are mere paper promises when the Court feels free to pick and choose who is entitled. We had better get rid of the notion that the Constitution and the Bill of Rights protect our democracy. Not as long as this Court sits.
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 12, 2009: David Souter
David Souter has announced his retirement from the U.S. Supreme Court where he served for nearly two decades.
Souter has been one of only two true conservatives on the Roberts Court. He did not join the Court with an ambition to change things. He has never been a radical, insisting that he had the one true answer and prior Courts were all off the mark. As a true conservative he has been modest about his ability to engineer the future. What time had tested should be conserved.
In that sense he is a conservative in the tradition of Republicans in New England and Rockefeller Republicans in New York who remembered that their party had written the 13th, 14th and 15th Amendments and welcomed the opportunity, at long last, to enforce them. And Souter is a conservative in the time honored tradition of Edmund Burke in England who supported the American Revolution because we were protecting what had been ours, but who opposed the French Revolution because it showed no respect for tradition, and led to a reign of terror and the Napoleonic wars.
Souter would have been at home on the Burger Court. Recognizing the challenge to create a colorblind society without compromising the ideal itself, the Burger Court balanced conflicting goals and charted a middle way. By the time Souter joined it, the Rehnquist Court had substituted a principle of blindness for the dream of a colorblind society. Looking at a perfectly segregated workforce the Rehnquist Court said the company didn't really mean it so its segregation didn't count. Souter never made that mistake.
Nor did Souter greet with equanimity the possibility of executing an innocent man as some of his colleagues did and still do. Conservatives believe in fundamental values of truth, and innocence. Souter left heartless efficiency to the radicals masquerading as conservatives.
When the Rehnquist and Roberts Courts tried to scuttle the environmental movement by rewriting doctrine, Souter refused to go along, arguing that the law did not justify it and it wasn't Souter's job to impose a vision of the environment on the country. We had state and federal legislatures and agencies entrusted with that task.
And when the Rehnquist Court changed the long settled meaning of statutes to the disadvantage of workers and consumers, Souter balked at a judicial economic policy.
None of that involved Souter creating new law.
The so-called conservatives on the Rehnquist and Roberts Courts have had an equality gap – talking about equality but refusing to rule in favor of the people who need it. And they have had a right to life gap – protecting lives in utero but refusing to protect innocent lives from execution. And they have had a democracy gap – insisting that their radical forms of misinterpretation are driven by respect for the people even while refusing to count the votes or recognize any democratic rights in any branch of election law with the single exception of protecting white voters claiming they were not over-represented enough. To Souter's undying credit, he resisted all that hypocrisy and fought for enduring American values.
It's not clear whether he will eventually recede into the fog of history. We won't find ringing phrases over his name. We won't find sharp breaks in the law with his signature. Historians and scholars looking for the big events may forget him. But Souter did what judges are supposed to do, indeed what radical conservatives have claimed that judges should do – restrain themselves, preserve the law, defer to the legislature – even while those same radicals were devising ways to do just the opposite. And for that, for the patience to do the basic if unglamorous job of judging honestly and modestly, we are all in Souter's debt. He has been a true conservative on the Court, and a real patriot.
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 5, 2009: The Second End of Reconstruction
There are two cases in front of the U.S. Supreme Court that will probably change American civil rights law radically. Four members of the Court have never been friends of civil rights law and have just been waiting for a chance to kill it. A fifth professes concern but has rarely supported it. It's hard to tell how much of a difference whatever the Court decides will make at this point. But it is not a group of people I trust for a realistic assessment of our anti-discrimination laws.
Some commentators have been arguing that we should abandon prophylactic tests to identify and prevent discrimination and just look for evidence of intentional discrimination. The problem, however, has been that it is easy to whitewash real discrimination by saying "he didn't mean it" – a formula we all learned as kids. And the Supreme Court has been very consistent in saying no, they didn't mean it, since it announced in the late 70s that the test for unconstitutional governmental discrimination would be intent, not the obvious patterns. Work force all white, but they didn't mean it. Election rules favor whites, but they didn't mean it. One searches the records in vain for a finding of intentional discrimination for about twenty years from the mid-80s when Rehnquist became Chief to just the past six years. The few recent exceptions were blatant and even so were angry split decisions.
So this Court gives me no confidence in a decent respect for equal protection of the law. The majority will mouth claims about colorblind equality but does not see discrimination when it bumps right into it and has gutted every effort to stop and prevent it. Four members of the Court have made it quite clear that while they protest about equality, they would happily go back to the days when white men could and did kick everyone around, blacks, Asians, Japanese, women, homosexuals and Native Americans – they're still doing that. That's not the America I believe in. And this is not a Court that believes in the most basic principles of decency.
After the Civil War, the era of Reconstruction lasted but a single decade before the troops were withdrawn. In that decade, Congress passed three constitutional amendments and a series of statutes. But a decade after the Civil War the Court was already finding some of those statutes unconstitutional, saying that Congress did not have the right to insist that everyone have access to places of public accommodation, restaurants, theatres and the like. White America wanted to turn aside after the horrific bloodletting of the Civil War, even though that meant that the South largely won the peace. And when white vigilantes massacred a group of blacks whose crime was trying to vote, the U.S. Supreme Court decided that there was no jurisdiction in the federal courts to try those responsible. Since no southern court or jury was willing to convict, the perpetrators went free. And the Court had authorized the reign of terror that would follow.
It wasn't instantaneous. The late C. Van Woodward described a considerable degree of interaction in the late 19th century between whites and blacks in the former rebel states. But as the century drew to a close, politicians increasingly found advantage in vicious race baiting, and a white paramilitary drove out the elected, and integrated, government of North Carolina so they could seat an all white unelected replacement. Then the reign of terror began in earnest.
Since 1986 the Rehnquist and now Roberts Court has been sending very strong signals that it will look the other way at charges of racial discrimination, discrimination in federal and state programs, discrimination in courthouses, discrimination in schools. I'd like to hope that it's too late for the race haters, that we won't turn back. But in fact enforcement of the requirement of equality in this second era of Reconstruction did not survive the Warren and Burger Courts. And Brown v. Board itself was not enforced until 1966 after the federal government started using funding for construction as a carrot for integration to support enforcement of the Court's decision. The era of actual enforcement turned out to be very short for all the bellyaching about it.
So maybe things have changed enough that the courts aren't necessary, and they had better have changed enough because the Supreme Court hasn't been willing to help for decades. This Court makes me ashamed.
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 28, 2009: To Prosecute or Not to Prosecute?
There is an effort to press the Obama Administration to prosecute those responsible for torture and it is gaining steam among many of us who have been outraged by the former Administration's sanction for torture. I have no doubt that their behavior was unconstitutional and violated many statutes. As a purely legal matter I am convinced that high up in the ranks of the Bush Administration there were a number of guilty parties who deserve prosecution and stiff penalties for their misbehavior.
But I have many doubts about whether they should be prosecuted based on what may be the likely outcome of prosecution. One strand in the conservative movement has been based on toughness. For them, the primary goal of the criminal law has been retribution. Prosecution would come straight out of their theory.
Those of us in opposition have a very different notion of social learning. We don't buy their shoot or punish approach to all problems. Our question is what will come of prosecution and how we can create a better society. We remember that putting a few members of the Nixon Administration in prison did not end dirty tricks. Impeachment of another president for his sexual behavior didn't mark the end of sexual misbehavior.
Many of us like to say we are a peaceful country. That makes us feel good but it is not true. We didn't conquer the territory from coast to coast peacefully. We took it by force from England, Spain, Mexico and the Indians.
We're a divided nation now. For the toughs masquerading as conservatives, being gentle with adversaries just seems wimpish and unrealistic. They don't believe in soft power and they are hostile to the claim. Their response to the revelations of misbehavior is not contrition but threats about what they and their supporters will do to paralyze the political system if we dare prosecute. As things stand, the perpetrators of torture and their apologists will just figure on getting even whenever they can find their way back into power. And nothing will be learned or gained.
Prosecution works best when society is united and perpetrators can be led to understand and own up to their misbehavior. Otherwise it makes martyrs and anger. I don't think we're there yet.
Hearings or a truth commission with a broad mandate to expose what happened could be helpful. Congress will have to be involved because the media do not stick long to issues that don't involve the lawmakers themselves. Hearings could deal with false imprisonment, "extraordinary rendition", and other high level misbehavior.
Could prosecution work? Perhaps if the punishment fit the crimes – fines and community service devoted to humanitarian work – and if any lenience depended on clear and convincing evidence of contrition.
Most important is to shame the perpetrators of such un-American behavior. Indeed, the wrong that calls itself the Right described as un-American, or "pinko", many in our parents' and grandparents' generations who cared about others than just themselves, and they still label "socialist" anyone and everyone who wants to show concern for our fellow man. Our job is to make clear that they should be ashamed of themselves. They are "un-American". And yes some enterprising entrepreneurs should make a buck publishing accurate lists for everyone to know who we are dealing with and what they did. Once that point is made, further punishment and prosecution may be unnecessary.
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 21, 2009: Prosecutorial misconduct: Eric Holder and the Supreme Court
I commented last week about the Court's conclusion that a prosecutor's office could not be sued for ignoring clear federal law that required it to provide exculpatory information to counsel for a defendant – information about the prosecution's main witness that might have spared the defendant twenty-four years in prison for a crime he did not commit.
This week I'd like to make it clear that the Court is consistent in its treatment of those who have been abused by government misconduct. They get the back of this Court's hand.
In 1964 the Navajo Indian tribe leased coal mining rights to a coal company, now Peabody Coal. The lease provided that the Secretary of the Interior would adjust the royalty rate at stated intervals. When the time approached and the Navajo Nation asked the Secretary to raise the rate, the Department had several economic studies done of the value of the high quality coal on the Navajo land, and each of those independent studies recommended that the rate should be set at approximately 20% of profits. No federal study ever recommended less.
Based on those studies, the Area Director of the Bureau of Indian Affairs wrote Peabody that the lease rate should be set at 20%. Peabody appealed. It also met with the Secretary privately and asked him to withhold his decision. The Secretary then directed the Deputy Assistant Secretary to withhold the decision, to tell the Tribe, as Justice Souter wrote, "that no decision on the merits of the adjustment was imminent ... and directing him to encourage the Tribe to shift its attention from the Area Director's appealed award of 20 percent and return to the negotiating table ...."
The result was a new lease in which the Tribe lost nearly 40% of the value of the coal.
There is no doubt that the Secretary acted improperly. The secretary had been given the responsibility of protecting the tribes. Instead he met privately with one side, what lawyers call ex parte, withheld a decision based on independent studies, and discouraged the Tribe about the prospect of an appropriate decision from his office. That cost the Tribe considerably.
The legal argument has not been about whether the Secretary acted properly or in good faith. The legal argument has been about whether the Secretary had an obligation to act in good faith toward the Tribe, whether its power over the lease involved a position of trust toward the Tribe.
The Navajo's effort to recoup what they lost through the misbehavior of the Secretary has been to our Supreme Court twice. The first time, in 2003, the Court decided that the Secretary had no obligation under a series of statutes which had been thought by most of us to put the Secretary under an obligation toward the Tribes, what lawyers call a fiduciary obligation.
The Tribe went back to the appellate court which decided that other statutes than the ones considered by the Supreme Court placed the Secretary under a duty toward the Tribe. The Court reinstated its decision in favor of the Tribe. Once again the case made its way to the U.S. Supreme Court. And once again this Court said the Secretary was under no statutory duty to the Tribe.
To paraphrase Thomas Hardy, thus did the U.S. Supreme Court finish its sport with the Navajo.
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 14, 2009: Prosecutorial misconduct: Eric Holder and the Supreme Court
Here is what U.S. Attorney General Eric Holder said about the prosecution of the case against former Senator Ted Stevens:
"In connection with the post-trial litigation in United States v. Theodore F. Stevens, the Department of Justice has conducted a review of the case, including an examination of the extent of the disclosures provided to the defendant. After careful review, I have concluded that certain information should have been provided to the defense for use at trial. In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial.
"The Department's Office of Professional Responsibility will conduct a thorough review of the prosecution of this matter. This does not mean or imply that any determination has been made about the conduct of those attorneys who handled the investigation and trial of this case.
"The Department of Justice must always ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice. Under oftentimes trying conditions, the attorneys who serve in this Department live up to those principles on a daily basis. I am proud of them and of the work they do for the American people."
Compare that with the recent decision in Van de Kamp v. Goldstein.
Thomas Lee Goldstein served twenty-four years in prison for a murder he did not commit. The prosecutor used the testimony of a jailhouse informant who claimed at trial that he had received no benefits for his testimony in this and other cases when in fact he had and had received multiple reduced sentences in return for his testimony. As the federal appellate Court explained, the U.S. Supreme Court nearly a decade before Goldstein’s trial, made it clear that “prosecutors' offices have a constitutional obligation to establish ‘procedures and regulations . . .to insure communication of all relevant information on each case [including promises made to informants in exchange for testimony in that case] to every lawyer who deals with it.’” [Goldstein v. City of Long Beach, 481 F.3d 1170, 1172 (9th Cir. Cal. 2007) quoting Giglio v. United States, 405 U.S. 150, 154 (1972).] But the prosecutor’s office in Long Beach, California simply ignored the U.S. Supreme Court.
So after winning his freedom, Goldstein sued the prosecutors in charge of that office for failing to abide by their responsibility to supervise and train their staff to get and provide the information to defense counsel and for failing to set up a filing system that would have made that information available to the prosecutor who handled the trial. Instead, Van de Kamp and his deputy ignored their obligation with the risk of sending people to a life in prison because of perjured testimony.
The U.S, Supreme Court should be the moral guardian of our Constitution.
Now here is what that August Court said: “prosecutors ... enjoy absolute immunity”, absolute immunity for failing to instruct their staffs to turn over exculpatory material, absolute immunity for refusing to set up a system which would make clear which witnesses had gotten promises or benefits for their testimony.
In the US Attorney’s office, Eric Holder takes responsibility.In the U.S. Supreme Court, no one takes responsibility – prosecutors can ride roughshod over innocent people, and it’s OK with this Court.
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 7, 2009: Sharing the Work in Hard Times
I grew up passionately pro-labor. I have always felt that labor unions did a great service. I have never felt that any human organization, unions included, always did the right thing. We all get some things wrong, elect the wrong people who pursue the wrong agenda. But on balance, I think unions do an important service.
But unions also have responsibilities, and some of those are legally defined. Most of the time when regulation of one kind or another defines responsibilities, it is because someone got something wrong. Either the regulated industry or union got something wrong or the regulators did.
Unions have a duty of fair representation. That responsibility was announced because some unions didn't want to represent some of their members. Some were corrupt; some were racist. So we make it plain that unions have a responsibility toward their members, all of them.
Recently labor unions in New York have been pelting the Governor with ads berating the Governor for aspects of his budget. Apparently the Governor wanted to hold on to as much of the labor force as possible, but he wanted the existing workforce to agree to a wage freeze. Many of us have been asked to do the same. And to keep people on the job, many of us feel its only fair and cooperate with a sense of shared responsibility.
Now when many of us, union, self-employed or management complained about the financial wizards who got us into this mess taking multimillion dollar bonuses when lots of people were forced out of work because of their misbehavior, our complaints made a lot of sense. We had a right to insist that they share the pain, not get rewarded for the damage they did.
So the unions would be perfectly justified, and I would cheer them on, if they insisted that cuts in salaries or jobs should be shared – with management. But of course the Governor did that straight off.
So the unions were faced with a different choice – would they agree to a freeze so that the maximum number could stay at work, or would they force colleagues onto the streets because the favored workers got their raises?
Under the law, the unions are entitled to make that choice. But it seems to me that the guys and gals facing unemployment lines aren't being well represented in that choice. Unions have to show some statesmanship too, some willingness to spread the work and share the pain. They have every right to demand that the pains are shared. But there's a big difference between giving up a raise and losing a job. I think the unions need to reevaluate the way they represent the people who'll have to face the unemployment lines.
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 31, 2009: The Speech Clause and the Summum Case
The Supreme Court recently decided a case dealing with a monument with the Ten Commandments on it. The monument itself was originally placed in the park by the Fraternal Order of the Eagles and was virtually identical with a Texas monument which the Supreme Court blessed a couple of years ago. But a different religious group also wanted to put a monument in the city park with some of its favorite aphorisms. The City said no and the Supreme Court said that was OK.
The case was argued and decided on free speech grounds because the establishment of religion issue was excluded early in the litigation. And that's where the decision gets most troubling.
Generally First Amendment law requires that government not play favorites, that government has no business blessing the speech of some and barring the speech of others. The government is supposed to let us all have our say without censorship or favoritism – in most circumstances. But the Court concluded that the monuments in the park were speech by the city government and not by any monument donor. The government was entitled to say whatever it wanted. So case closed.
That idea that government speech makes discrimination OK has been used before. Congress has allowed some organizations to retain their tax exemption despite substantial expenses for lobbying Congress while refusing the same tax exemption to other similarly situated groups. But the Court concluded that since Congress' favored group was saying things Congress liked, it was really a form of government speech so the favoritism was fine. The Court concluded in other cases that organizations that took government money could not speak freely even with their own money because whatever they said was government speech.
I think you get the point. Free speech law is not governing the rights of speakers. Instead the question is what the Court might decide to call government speech. But if the government can convert favoritism into government speech, there is little left to the First Amendment rule of neutrality, that government not take sides among speakers and viewpoints, little left to the rule that government does not have the option to let those it likes speak while silencing or taxing those it does not like. In effect whatever speakers say that government likes can get to be called "government speech" and calling it government speech lets the government do those speakers favors and gets the government off the hook for disfavoring the speech of others. That undermines the fundamentals of First Amendment law – under neutrality doctrine, favoritism is partiality and it is illegal; but under government speech rules favoritism is just government speech and that's just fine. So favoritism is legal and neutrality doctrine is irrelevant. That's an example of the way that courts can speak with a forked tongue, and undermine our most important rights as a free people.
The Summum case where all this came up again is small potatoes in this area. The members of the Court had no disagreement with the result on the facts of the case. But there was and should be plenty of concern about the way the Court got there.
Stevens and Ginsburg commented that "our decisions relying on the recently minted government speech doctrine to uphold government action have been of doubtful merit." And they expressed concern about where the doctrine could lead.
Justice Breyer went further, writing that "courts must apply categories such as ‘government speech' ... with an eye towards their purposes—lest we turn ‘free speech' doctrine into a jurisprudence of labels." Exactly. Justice Souter expressed "qualms" about the way that government speech doctrine could undermine Free Speech rules.
The government speech doctrine has not been used well and threatens to undermine constitutional protections for free speech by allowing government to mislabel favoritism as ownership.
The Court needs new and better leadership and direction.
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 24, 2009: Wailing at the Wall of Separation
A couple of years ago the Supreme Court decided that a Texas monument with the Ten Commandments was OK although a Kentucky monument was not. A few weeks ago the Court upheld another city's right to a Ten Commandment monument similar to the one in Texas, although the case raised some issues not raised in the Texas case. So what happened to the wall of separation and should we regret its loss?
The original idea of the wall was to protect religion from government. It was built up during a time of considerable hostility toward public support of religion by the states. Most Americans wanted to be free of forced exactions for religion. They didn't want to support other people's faiths and they also wanted more control over their own faiths.
The wall is comforting but impossible. Government has to do lots of things for religious organizations and structures – fire, police, water, the list goes on. And everything government does for religious institutions can then allow those institutions to spend more on other functions, religious functions. So everything depends on what is treated as legitimate, what is done for all on nonreligious grounds. The underlying idea there is neutrality.
But neutrality isn't self-defining either. Is schooling neutral because it is secular and you can do anything after school about religious education that you want? Or is schooling biased because it is secular so it implies a view about religion?
Unfortunately, no theory of the religion clauses of the Constitution is logically closed or consistent – they all have characteristic black holes, risks and assumptions that make them work and make them risky.
Still, I do truly lament the wall. Most scholarship by political scientists see communal schooling where we each educate our own in our own traditions as a good way to foment problems, intolerance and interreligious violence. Many Americans express concern about the madressas, essentially Islamic religious schools which have replaced public education in some parts of the world. The concern is that those schools are set apart, unintegrated with the rest of society and the world, free to teach hatred with no check in sight.
America has championed integrated public education since the early nineteenth century – integrated originally in the vision of Horace Mann among economic classes, so it would bring rich and poor together to understand each other better, and soon we had coeducational schools bringing boys and girls together for the benefits we thought it would bring to both. Later in the century we integrated the immigrants pouring in from eastern and southern Europe to help them learn American language and culture – we called it Americanization. And in the 20th century finally we integrated schooling across racial lines, a major achievement.
Integrated by class, integrated by gender, integrated by ethnicity, integrated by faith and integrated by race – America has created public schooling to be the common experience of the great majority of Americans. Israelis and Palestinians don't go to school together and it shows in the hostilities. The same is true in much of the world. It would be dangerous to lose our American solution of common public schooling.
But most people no longer understand the wall. Instead of seeing the wall as a protection for religion, they see it as attacking and restricting religion. The good news is that people do understand neutrality and support it. Be fair, give everyone a chance, share – these ideas have meaning confirmed by polls. I want to keep the public schools public, but ideologies don't wait for my approval. At least in that vision of fairness, there is some ground for getting together on the public square.
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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