WAMC: Commentators Stephen E. Gottlieb

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Stephen E. Gottlieb

May 6, 2008: The Supreme Court on voting rights: Indiana's Voter ID

Not many years ago, the U.S. Supreme Court required equality in the voting booth, equality in the way votes were counted, and equality in who could vote. But voting rights have now become a political football and the Supreme Court has been blessing the practice.

Want to draw district lines that favor Black Democrats? The Court says racial motives are impermissible; it's racial gerrymandering.
Gerrymander in favor of White Republicans? No problem, says this Court; political motives are irrelevant.
Want to count all the voters the same way? Sorry, that would embarrass then candidate Bush.

Now the Court has announced that it is OK for Indiana, and any other state, to impose expensive and difficult requirements to get photo IDs and require them in order to vote. At every step in the process, Indiana chose procedures that are unnecessary and expensive, the kind of procedures which make it unlikely that the poor, the elderly or the disabled will be able to vote. So the Indiana Democrats, or all Democrats, will now need to devote some resources to help voters get the right to vote. But that's OK, says this Court. The election is a game and victory goes to the contestant that is still standing at the end. Only Souter, Ginsburg and Breyer objected.

Republican states will find ways to make sure that people who might vote for Democrats can't get to the polls. And no doubt Democratic states will find ways to retaliate – unless of course the Court suddenly gets huffy about voters' rights.

American politics used to be that way. Instead of modeling democracy for the world, it looks like the new models are Mugabe's Zimbabwe or Musharraf's Pakistan or Boss Tweed's New York. So let the games continue.

There is no greater stake in the coming election than the possibility that some day we might once again take pride in the American Supreme 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 a member of the Board of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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April 29, 2008: They Got Away With Murder

"They got away with murder in there," Calvin Hunt, told a reporter.

Indeed they did. The U.S. has cried in horror over brutality, genocide, torture, gassing of populations, and the abuse of prisoners, when they happen in other places. But we don't seem to be able to insist on a code of decency for our own police:

New York's finest sodomized Abner Louima with a toilet plunger.
Rodney King brutally beaten by several officers while on the ground. A state jury acquitted the officers. Two were later convicted in a federal trial on civil rights charges.
Amadou Diallo unarmed, guilty of reaching for his wallet, shot 41 times. The officers, innocent on all charges.
Now Sean Bell, unarmed, shot 50 times, guilty of attending a bachelor party and climbing into a car with friends. The officers, innocent on all charges.

Not to mention, unfortunately, other national, state and local examples.

The police insist that no one is entitled to judge them, no truly independent police community review board with the power to investigate. And the abuses continue. If the police are unwilling to be accountable to the public, maybe we should start over from scratch. We could imitate the British and insist on college degrees for all officers. We could hire foreigners because we'd have no compunction about keeping them honest.

We honor many of the police for their bravery. But as we keep learning, bravery is consistent with a multitude of sins. There is simply no excuse for trigger happy cops and no reason to respect or support those cops who do not recognize or participate in constructive solution of the problem. Accountability must be the price of carrying deadly weapons.

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April 22, 2008: The Irony of Clinton and Obama

This is the day of decision in Pennsylvania. It is ironic that the Democratic nomination is between a white woman and a black man. If either wins it will mean a breakthrough - for women if Hilary is the first woman president, for blacks if Barack is the first president of color.

Before the Civil War, the abolitionist movement and the women's movement worked together. But in the Reconstruction Congress, the abolitionists secured the vote for black Americans. It took women another half century to get the vote in America.

The Civil Rights Act of 1964 had the reverse effect - women benefitted from it more quickly than blacks.

It is not unusual for politics to pit the underdogs against each other. And in this election only one can get the nomination.

Let there be no mistake. These are both events that need to happen. America is not just white or male. America is an immigrant society - we or our ancestors all got here from some where else. And our national creed is that all of us are created equal. Our politics must reflect that. It is the right thing to do. Both are just causes.

Whichever candidate we are supporting, it is important to remember that the Democratic Party supports both causes. The Democratic Party was reshaped in the twentieth century by the Civil Rights Movement and it has remained true to that great vision of equality. We cannot let the issue of race vs. gender become the wedge issue that divides the party. We have elected black governors and women governors. We will elect black presidents and women presidents. But the principle of equality is bigger, much bigger, than a single choice in one election.

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April 15, 2008: Manslaughter?

Are our public officials, the ones we put in office, responsible for what they do?

The usual rule for you and me is that we are responsible to act reasonably and if we don't, we are responsible for the damage we cause. We call the failure to act reasonably negligence. It's the rule for everything from car accidents to corporate misbehavior.

When behavior gets particularly bad and results in death, we call it manslaughter. Here is a definition used in the District of Columbia, though it is typical of most jurisdictions:

The essential elements of involuntary manslaughter, each of which the government must prove beyond a reasonable doubt, are: 1. That the defendant caused the death of the decedent; 2. That the conduct which caused the death was a gross deviation from a reasonable standard of care; and 3. That the conduct which caused the death created an extreme risk of death or serious bodily injury."

Let's examine a few facts:

George Tenet told the president there was no connection between al-Qaeda and Iraq until he was pressured to change his story. He told the Congress that the CIA never did an NIE, a National Intelligence Estimate, on Iraq, before we invaded. In fact no one wanted one because it would have aired the doubts, criticisms and contradictions that had surfaced.

The Administration accepted the word of a captive about the Iraqi-al Qaeda connection even though the man he said had met with Iraqis had actually been in the hands of the FBI in Florida at the time.

Before the invasion, the State Department was trying to figure out what would be necessary to secure the peace. The rest of the Administration was uninterested. In fact, the President wouldn't meet with the Secretary of State unless the National Security Advisor arranged the meeting. The top staff of the Army told the Administration before the invasion that it was not providing the force needed to secure the peace.

Everyone except the Administration knew that invading Iraq was far worse than a can of worms. But some in the Administration decided that no information could be relied on, so no reliable information was necessary.

So the Administration set in motion the deaths of more than 4,000 Americans, hundreds of thousands of Iraqi civilians, tied our military down, crumpled our reserves, crippled the officer corps, neglected to take care of the veterans and mortgaged our future to the Chinese.

So was the carelessness of the Administration or anyone in it negligence? Manslaughter? You decide.

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April 8, 2008: Listening to the Hearings on Iraq

What should we listen for in the discussion of the War in Iraq? Most people seem to be focused on victory or defeat. But what is the objective? Victory in terms of just holding the territory is the easy part. Even subduing the population can be accomplished with enough manpower. But what are we doing all that for?

The British spent a century pursuing foreign policy as balance of power politics. The U.S. led the world in containment politics for half a century. What is the strategic vision of how we can protect America in the future? Is it a go-it-alone position in which we pursue the Bush doctrine of preemptive war? If so I suspect we will shortly find ourselves surrounded by enemies determined to control us. It is an unsustainable policy.

Many people seem to believe that there is an inevitable conflict between the Islamic world and the west. Having lived and worked in the Islamic world I know that is bunk. But the more people in America who think in such stereotypical terms, the more this country will make it so.

But then what are we doing in the Muslim world? Muslims have many disputes among themselves. By our involvement in Iraq and in the Islamic world we are making their fights our fight. We make it easy for Muslims to displace their own anger at problems within the Muslim world toward us. What are we hoping to gain from such behavior?

It's now obvious that Iraq posed no threat to us. But having injected ourselves into their world, weapons of mass destruction become more important. Both Iran and North Korea are two examples of countries that got the message - the U.S. would not have invaded if they had a credible nuclear threat. So ultimately the Bush War is likely to lead to more, not less, proliferation, and more, not less, threat of the use of weapons of mass destruction.

What economists would call the opportunity costs of war in Iraq are huge - huge in foreign policy, huge in domestic decline.

Americans tend to believe that everything going on in the world is about the U.S. It is a naive and dangerous view. But we can make it real. God help us.

So what I want to hear is a much more intelligent approach to the world, and the part our Iraq policy needs to play toward those larger objectives.

Steve Gottlieb is Professor at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also a member of the Board of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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April 1, 2008: Medellin v. Texas

Is Texas or the Supreme Court of the United States actually a part of this country or have they seceded?

A treaty requires that when people from another country are accused of a crime and held in prison, the authorities must tell them they can contact their consulate for help. Pursuant to another treaty, the International Court of Justice concluded that the U.S. was violating our treaty obligations.

That is quite important to Americans abroad and to our diplomats. The Administration and many former American diplomats told our Court in the strongest terms that these were important treaties that protect Americans abroad, and if states are free to ignore treaties it will undermine our ability to secure international treaties favoring American interests abroad.

But Texas, the "Lone Star State," prefered to go it alone and not bother to contact the Mexican consulate. By the time Mexico found out that Medellin was in prison, Texas had tried and convicted him. It was too late to offer any help.

Another foreign national arrested in the U.S. took his case on similar facts to the Supreme Court. But the Court decided the states didn't have to obey federal treaties. So Mexico took 51 cases to the International Court of Justice. The U.S. agreed to be bound, to submit Medellin's case to the ICJ for binding resolution. The ICJ decided Texas had to comply.

And President Bush ordered Texas to comply. Prior Administrations just told the Court that it was American policy to comply with the particular international agreement and the Court generally followed suit. But Bush had to be different.

Anyway the case went back to Texas and they still didn't want to comply even though Bush was from Texas. So the case came back up to the U.S. Supreme Court, which decided never mind the treaties, never mind that we agreed to submit this case to the ICJ. Texas, being Texas, did not have to give Medellin the benefit of help from the Mexican consulate. The treaty wasn't a Texas treaty and they didn't have to abide by it. So Medellin lost.

Now until they decided to erase it, there was a clause in the U.S. Constitution that said "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the Land."

That wasn't an accident. One of the reasons the founding fathers were so anxious to write the Constitution was because the states were not honoring the treaty with England that ended the Revolution and they were concerned where that might lead. So they put that clause in there.

Now I ask you, are that Supreme Court and that Texas thing a part of the U.S. or did they leave and should we bar the door?

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March 25, 2008: Pogo and the Environment

I was once on a panel on which one of the speakers quoted Pogo: "We have met the enemy and they is us." He argued that government should not regulate pollution because each of us should make individual decisions not to pollute. I on the other hand wasn't willing to wait and watch the spoiling of the earth while we discover how many of the good people on this earth were willing to make what individual sacrifices while their neighbors continued to pollute.

Yet Pogo has a point, though I'm still looking for decisions that can have large effects. The question is what we are willing to consider?

The Bush tax cuts have not financed investment in business. They financed larger and larger mansions further into the countryside, at least before the current meltdown. The occupants will need to drive ever further to their jobs and we'll end up paving over more of the country so they can get to work.

But the problem really goes all the way back to FDR and Harry Truman. Because ever since the Great Depression our national housing policy has supported building single family homes in the suburbs and has discouraged housing in the cities. So we've been building a country that requires cars to get to everything we want to do, and we've been driving ever more miles, and polluting more and more.

Years ago I lived in St. Louis County and got a job working in New York City. I told people I was going back to nature. After they picked themselves off the floor I explained that in New York I would walk to almost everything. In fact my commute was a lovely walk across the Brooklyn Bridge. Whatever the commute, New Yorkers do a lot of walking. You have to. If you drive you're liable to park as far away as where you started.

So are we willing to rethink our housing policy and move government support from the suburbs to the cities? That could have an enormous impact on global warming. And if it gets us walking, it could even lead to a more heart healthy America.

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March 18, 2008: Video games and free speech

A young man at RPI exhibited a video game which some people regard as inflammatory. Depending on how the game is played, George Bush can come under attack. Officials at RPI were not amused and removed the game from the exhibition.

The Sanctuary for Independent Media invited the student to show at their gallery. The City of Troy was not amused. It shut the gallery down.

I lived through the assassinations of two Kennedies and Dr. King and I don't find the idea of assassinating American presidents amusing - even those I despise.

But banning the video is another matter.

Art is often, and easily, misunderstood. Apparently, this student was trying to get people to think about the collateral damage taking place in Iraq and to provoke thought about the roots of violence. A few years ago, artist Andres Serrano was trying to show that America had turned against Christ. America read his painting as meaning that Serrano had turned against Christ.

Intentions aside, how about the consequences of the video game? I remember a Nixon dart board. No one thought people would learn to assassinate Nixon by expressing their displeasure with a dart board. Liberals attack a culture of violence, in games, movies and ownership of weapons. Conservatives defend the culture as manly, patriotic and self-defensive. But many reverse positions when a conservative office-holder is under attack. So is the problem evidence or image?

Advocating people's right to legal counsel when accused of disloyalty was enough to get a place in the blacklists circulating in the 50s. Many prominent names are there for just such defense of American freedoms. They were called "fellow travelers." Censors tend to lump people together.

The problems go deeper. We tend to mark our grievances in very strident language. We've called each other some pretty nasty things. One young man walked into a California courthouse with an expression on his t-shirt that I cannot repeat on the air. The U.S. Supreme Court held he could not be punished for it. The Court understood that condemning the language tends to silence the victims and protect the perpetrators.

Power gets misused. The first person punished under a pornography law in Canada was a lesbian writer. Derrick Bell, a famed black legal scholar predicted that hate crime legislation would be used against blacks - they had, after all, lots to be angry about.

Its nice that some of us can deal with public issues in mild mannered tones. But it changes things if we throttle language - it gives the rest of us the false impression that nothing's going on. Sometimes, shock value is a value. Sometimes it's the only way to get the media, or the rest of us, to pay attention.

For the New York Civil Liberties Union, on whose board I sit, condemning censorship is a no-brainer for the simple reason that when some of us lose the right to speak, the rights of all of us are in danger.

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March 11, 2008: Ego and Politics

I usually work on commentary at least a few days in advance, often much more, then wait to see what the latest news is going to do to what I'd planned to say. I had planned to take off from Pogo's famous "We have met the enemy and they is us." I was thinking of the environment. Then Spitzer!

Unfortunately, the immediately preceding Chief Judge of the New York Court of Appeals served time in prison for harassing his ex-mistress. Thank God he was a Republican - sexual misfeasance is politically neutral. And this country would be in much better shape if Clinton'd been able to control his sexual organs. To err is human. It takes a politician to do it under a microscope in a country looking for heroes.

What would lead a man in public life to jeopardize his career and hurt his family like that? I can only think that success goes straight to the ego, leading people to think the rules are not made for them.

Our country's founders had no such conviction. They worked hard to create a government in which the governors would be subject to the same rules as the governed. They treasured the role of private citizen, and the obligation of private citizens to serve the public. They had fought against special privileges for the the royal governors, their entourages and hangers on.

Some founders had problems. Some of them went bankrupt when the value of the western lands plummeted. In those days bankruptcy meant debtors' prison. One of Washington's close friends, a major figure in the Revolution and member of the Constitutional Convention spent his last days in debtors' prison. Another who played a large role at the Convention and served on the U.S. Supreme Court spent his last days running from the process server.

Those were business transactions gone bad, though fine when done. Perhaps they also found it hard to believe that the risks that affect ordinary people could catch them too.

Make no mistake. I do not avoid candidates because of their egos or their ambitions. On the contrary, no one without ambition and a very large ego could withstand the 24/7 life that people like McCain, Clinton and Obama are sustaining now. You can't rise to the top if you don't think you deserve it. Even good old Ben Franklin gave up on humility.

We pat people on the back when we call it believing in yourself. Talking about ego is already a condemnation. Whether it's called ego, ambition or confidence, you can't get anywhere without believing in yourself. And you shouldn't get anywhere if that belief isn't tempered with the principle that the rules apply to everyone.

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March 4, 2008: Bush Administration World Wide Attack on Due Process

For decades, the United Nations has been a force in the world for human rights and democracy. Human institutions are never perfect and the UN had its share of faults. But out of the UN came the Universal Declaration of Human Rights and a long list of other efforts to secure the blessings of liberty and dignity to the diverse peoples of the globe. Around the world nations felt the pressure to accord rights to their people and to move toward ever stronger democratic institutions. Many of us have been thrilled by the resurgence of democracy on every continent over the last three decades.

Until 9/11. Since then, all the while talking cynically about freedom and democracy, the Bush Administration has pushed the Security Council to demand of all nations the peremptory seizure of people and assets, without specifying the charges or giving people the chance to disprove them - the same issues that we have been fighting over in this Administration's own treatment of detainees. This Administration has insisted that it does not have to respond to the courts. It doesn't have to prove its case before a neutral decision maker. It doesn't have to give people access to lawyers. Slowly in America the Congress and the Courts have fought back, though with very small and halting steps.

But it turns out that the Bush Administration now has the UN Security Council doing its bidding. With UN resolutions to back them up, authoritarians around the world can now say no one has the right to question them. They can pick up people or their property without allowing them to defend themselves before any tribunal.

That of course is the Kafkaesque world we have been fighting against. That is the darkness of an authoritarian world where people get picked up because someone doesn't like them or their politics or wants a bribe. That's the monster against which our greatest generation shed its blood fighting in World War Two.

The Advocate General of the European Court of Justice has now issued opinions saying that his Court cannot accede to the UN Security Council, that human rights, and particularly the right to a chance to show that one is not guilty of behavior which would justify seizing him or her or taking their property, are not up for grabs by power hungry executives. He has announced that due process of law is not a policy choice. It is the very essence of a free society.

Kim Scheppele at Princeton has been writing a book about this threat to freedom and working to alert us all. My thanks to her and my complements to ADVOCATE GENERAL POIARES MADURO for taking what used to be the American position. And shame on our home grown authoritarian. My prayers are for a president who will be willing to restore human rights and sacrifice the power to act without limit or responsibility that the Bush Administration has turned into a worldwide authoritarian creed.

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February 26, 2008: Be Done with Charisma

There is an issue in this presidential campaign that concerns me a great deal. It goes well beyond the candidates. There are some excellent people in the race: all the leading contenders have my respect and I'd happily vote for either of two in November.

What bothers me is what people make of the legacy of John F. Kennedy. Kennedy was very well spoken. He had great speech writers. And they understood our craving to serve and not just to receive.

Since Kennedy's assassination, all candidates have been compared to him, most very unfavorably. Few have had his gifts of youth, confidence, intelligence and speech. People are looking for a candidate that inspires them, a candidate they can trust. It's hard to remember now but a large portion of the American electorate chose Bush in 2000 because they trusted him.

Once elected, Americans do not like to question their presidents. After the election, Bush had the ability to convince an overwhelming portion of the American public that we should go to war in Iraq largely by unvarnished repetition - such is the power of presidential charisma. It took well more than four years before the incompetence of the current president sunk in. In the meantime, American presidents have tremendous power to do lasting damage. Their presidential image shields them from rational questioning, drives Americans to stick by their president and politicians to dive for cover, as Hilary obviously did regarding the war in Iraq.

I don't want charisma. I want judgment. I don't want Pied Piper leading us down the garden path. I want a president who is sensitive to the role of the other institutions of government, institutions designed to check the power of the president, and test his logic. This country was founded on principles of checks and balances, not the charisma of a strong man. We've seen too many leaders with charisma. Chavez in Venezuela tried to overturn the limits on executive power in their constitution; Putin in Russia has succeeded in marginalizing the institutions of democratic society - the list is long and frightening. It bears out Parkinson's law - that people will seek whatever power is in their grasp. It doesn't really matter that some of us wouldn't because those who seek power are the ones who reshape the world.

Let's get rid of this charisma thing. Let's look for knowledge, skill and judgment. Let's treat whoever wins not as some god whose word defines goodness but as a human being who gets some things right and other things wrong, and who needs all the institutions of democracy, auditors, legislators, lawyers, judges, and public interest organizations contributing the benefit of their minds to help whoever is elected maximize the good and minimize the bad that all real human beings are capable of.

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February 19, 2008: Kenya and Iraq

I have a colleague and friend in Nairobi, Kenya. James Gathii is a chaired professor at Albany Law, widely known around the world for his work. He played a part in drafting independent proposals for Kenya's constitutional revisions. People at other institutions have been writing dissertations on his work.

A few years ago my wife and I traveled around Kenya with James. Part of the time his wife, Carol, and their children were with us. Part of the time we were with James' parents, brothers and sisters. They are dear, warm, and lovely people.

They are not immune, however. After we left Kenya, Carol's brother, in the military, was shot by a thief. Now we greet every new report of violence there with foreboding. I restrain myself from writing to James too often to find out whether they are OK - James and his family have other things to do than write me back here - but when someone asks me about him I gladly use that as an excuse.

Kenya had been a rock of stability in Africa since colonial rule decades ago, led by one of Africa's great statesmen, Jomo Kenyatta. It shares a northern border with Somalia, Ethiopia and the Sudan, an area that has been steeped in violence. But Kenya resisted internal violence. One of the most important indicators of its democratic future is how long it has been a democracy. Seeing Kenya lose its footing is unsettling. Only a few years ago Kenyans celebrated a peaceful change of rule from President Moi to President Kibaki. Now this.

I also feel somewhat helpless. I can't quite figure out what I can do to help my friends and colleague. My feelings of helplessness can be summed up with the name, Iraq. This country has sunk so much of its treasure, its men and women and armaments into Iraq, that we have little ability to impact other hot spots in the world. Even with Secretary Rice finally in Kenya, we don't have the credibility to make much of a contribution to peace. Foreign affairs are quickly spinning out of American control because we are mired in the Iraqi desert.

My frustration with our limited ability to help stop the violence in Kenya is matched by my frustration with our inability to do anything to help stop the violence in Darfur, or to contribute to a positive future in other parts of the world.

Even if McCain is right about the possibility of winning in Iraq, whatever that might mean, he is wrong about American policy. We cannot keep American resources tied up in this cruel and thankless war.

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February 5, 2008: Consistency in Politics

We're all focused on the results of the primaries. I want to add a thought about the battle over who was for what when. On the Democratic side everyone agrees we should not have invaded Iraq. But some people have changed their view.

You could play that argument with Franklin Roosevelt, surely one of our greatest presidents, who led an isolationist nation into some of its finest hours as leader of the free world. Roosevelt supported the British through the lend-lease plan while telling the American people he was keeping us out of the war in Europe even as the British and the French were being driven off the beach at Dunkirk. He waited for the American people to understand the stakes, which the Japanese short-circuited with their attack on Hawaii. Roosevelt then took a nation into the war that had been unwilling to consider another European war, a nation in which many famous Americans championed Adolf Hitler; and with his leadership we destroyed the devil's Nazis. Our greatest generation, white and black, old line, ethnic, Native American and Japanese American, made a huge sacrifice in that war, and they made it behind a president who knew he could not describe for America what he was convinced the future would bring. Sometimes our greatest politicians have to bide their time, or just go along.

We live, after all, in a democracy in which the people are supposed to rule and can take down those leaders who are out of step - whether or not they will eventually prove right.

So I'm less concerned than many by who flip flopped over what. Our leaders are supposed to listen to us. They are supposed to lead when they can, and pick their fights, but never to ignore the rest of us. And I remember the scorn that greeted those of us who objected to this Administration's military designs at the time.

Democratic politicians reflect us. We have to learn not to jump to what seem like obvious conclusions, to take our time before acting on our hunches, and to give our politicians time and space to question.

I have tremendous respect for Senator Byrd from West Virginia. His eloquent voice rose to challenge the rush to Mr. Bush's war. I also remember Senator Byrd from his days as an ardent supporter of segregation. I could not have supported that Senator Byrd. But I respect his growth, his broadened understanding so that now he merits a great deal of respect - because of, not in spite of, his change of heart.

There is a debate about whom to credit for the comment that "I must follow them; I am their leader." But it is an important point. A politician who ignores how his or her decisions and actions will play on the electorate is not a politician who will have the privilege of leading anything. So what I'm looking for is a bit deeper - how will they move within the zone of political possibility. How they think through decisions? Whether their positions arise from an understanding of the world, not just what they concluded. And who they will be working with and relying on? In politics, no man or woman is an island. In a democracy we need to cut our leaders some slack. And to look for and respect signs of growth. The choice on the Democratic side is a hard choice because it is a choice between two very capable leaders.

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January 29, 2008: Economic Stimulus

Washington talks about a stimulus package. The notion is to give money to people in hopes they'll do something good with it. Local government talks about development. The notion is to direct money toward bricks and mortar in hopes it will bring in more money. Actually I think everyone is off base.

Both are right to the extent that they are thinking about investment. But neither has figured out what to do. Republican plans to give money to the wealthy won't work because it doesn't address why they would invest in a weak business or economy? Or why available funds have been allowed to lie around. That was part of the problem that led to Lord Keynes famous work and the supply-siders have never really understood it. Most of the Bush tax cuts have been spent on mansions. Some of the rest has gone overseas.

Democratic plans to give money to the working class and poor makes sense in terms of fairness and in a more isolated economy it would have primed the economic pump. But, in a global economy, a large share of that money will also travel overseas. It's less clear what it will stimulate.

Neither form of tax cut is targeted with any sense of what the problems are and how to deal with them – except, that is, targeting the constituency of either party.

Municipal projects are scatter shot in a different way. Cities and towns try to bring in business, any business, that will bring money and jobs. Each day's news brings to light yet another effort of this type. In the process these communities often give away the store and frequently fail to get the benefits in jobs and investment that they'd hoped.

I am not making an argument against government involvement in the economy. As far back as the eighteenth century, government built the first significant banks in the U.S. and created modern banking in the process. In the nineteenth and twentieth centuries, government built the transportation system – actually built and rebuilt it several times, first as canals, then railroads and finally highways. Electrification, postal services, the GI Bill and medical and agricultural research were 19th and twentieth century investments that paid off handsomely. All of these government efforts resulted in increased productivity here in the U.S.

What is lacking in the twentieth-first century is vision – what is it that our economy and our people need, not as handouts, but as investment in our futures? Investments that will enable Americans to have and maintain a high standard of living while competing successfully with products from other countries.

There are environmental, energy, educational, internet, health care, research and even regulatory investments that would have that effect. If we stop just throwing money in the national wishing well and actually start thinking about what would put this country, and its people, on a firmer footing. Our leaders in government used to have enough public spirit to do that. Let's hope they will again.

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January 28, 2008: A Warrior Nation in a Complex World

I'm tired of hearing suicide bombers described as cowards. Describing people willing to die for what they believe in as cowards is misleading and unhelpful.

But it says a lot about us. We like to describe ourselves as peace-loving. But we got to be a great nation the same way that other great nations developed – by beating everyone else around – England, Indians, Spain, Mexico, Germany, and Japan among others. Military might got us what we wanted.

But a great power has to use its strength sparingly and wisely.

We're not in a fight against the Muslim world. The vast majority are not trying to hurt or destroy us or even hostile. But fighting foolish wars without clear justification makes enemies. If we continue to fight foolish wars against Muslim nations, battle with the Muslim world can become a self-fulfilling prophecy. That's one billion people, three times the size of the U.S.

Nor will military might solve our disagreements with China. With a third of the world's population and industrializing, China is a major world power. India has another billion people. Might alone won't get us what we want in a world we share with them.

Industrialization was our big leap, the source of American might. But we have been de-industrializing while other countries are making the leap into an industrial economy. As a result, our relative advantage is diminishing. Patriotic slogans about how we're the greatest won't change the inevitable shift in power.

As world oil production peaks, power will shift to economies that use other sources of energy. Oil dominates here – for fuel, for plastics, and for pharmaceuticals made from oil. We've deployed our armed forces to protect our sources of oil. That spreads our forces thin, threatens other countries, and requires still more of our wealth and manpower to secure our sources of oil.

Many civilizations have come to an end because they were unwilling to change practices that had become unsustainable. As power shifts, it will be harder to project American military might. We have to use new strategies. Yet Americans still demand that our politicians fight over who is more or less of a warrior than the other.

The costs of this way of thinking are clear every day in Iraq. It's been costly in the international ideological war for law, order, justice, fairness, and peace. And in the destabilization of Iraq which made Iran more dangerous, not less. We failed to understand balance of power politics in foreign affairs and we will pay for that oversight.

Law cannot just depend on soldiers. It depends on widespread support and cooperation.

For a century, with some wrong turns to be sure, America made obedience to law a goal of international relations. American presidents touted the rule of law and had us join ever more complex international agreements, designed to make it clear to everyone that breaking treaties would be much more costly than keeping them, and moved more and more countries from the warpath to the bargaining table.

Being smart is not wimping out, surrender, cowardice or a lack of patriotism. Rather it is the height of statesmanship to deal with a changing world with appropriately changed means, to work toward a decent world based on a system of laws. The time to bring it about is while we are still the world's superpower. Whatever it did for us in the past, a warrior mentality is increasingly counterproductive. Substituting wisdom for war is the height of patriotism.

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January 22, 2008: Once upon a Court

Once upon a time there was a Court that tried to protect Americans' access to the political process. Once upon a time the Court insisted on ending the scandal of the white primary in which black Americans were not permitted to vote. Once upon a time the Court held that states could not make people pay for the right to vote. Once upon a time the Court held that all Americans had to be counted equally; one person gets one vote. And that great Court held that political parties did not have the right to force people to make contributions to it or to vote for it or support them in any way – it held that people have the liberty to support what they think is right without being coerced in their jobs by political parties.

That Court has been honored around the globe. Free nation after free nation set up a constitutional court to give it powers similar to that Court.

Alas that Court long since closed its doors. Then the new Court held that two citizens could count equally with one. It held that parts of the old Confederacy could rejigger their laws anytime it looked like blacks could get elected to make sure they wouldn't exercise any power. It held that votes for president didn't have to be counted. It held that citizens had no right to a legislature free of gerrymandering to protect incumbents. And now it has held that New York could design its election laws so that judges could be coerced to hire party hacks to do party business in the judges' chambers and so that the public would have little opportunity to challenge those party leaders. This Court has not found a right to vote that it supports. Instead, this court supports the right of the holders of office to choose which citizens will be allowed to vote for them.

This Court will also be honored around the globe. Dictators around the globe will have courts that imitate this Court. Dictators around the globe will want courts that bless their schemes to make sure that voters are the right voters to vote just for them.

Ah will there ever be a living Prince who'll find and kiss the sleeping beauty of what once was the American Supreme Court?

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January 15, 2008: The Candidates and the Primaries

I sat down for dinner at a recent professional meeting with some people I had just met. The woman next to me was from Canada. As the conversation turned to politics, she commented that none of the candidates, at least none of the prominent candidates, would have been candidates in Canada. There, candidates are chosen by their colleagues in Parliament as their leaders. Thus comparable candidates in this country would be Senator Reid or Representative Pelosi on the Democratic side, Senator McConnell or Representative Boehner on the Republican. For her that meant they would be people of substance, trusted by their colleagues.

Actually the delegates to our Constitutional Convention in 1787 did expect our presidential candidates to be people of substance, who had national reputations for important work already done. They would not simply be people who speak well. They would have been tested.

It did not work out that way after the first few campaigns. Andy Jackson and his supporters democratized politics. Once the primary system was perfected in the twentieth century, voters would have a large part in the selection of candidates.

So what do we want? It seems to me that we have been trying to reelect John Kennedy for the last 48 years. Kennedy was a senator but from the first he was working toward the presidency. He campaigned as an outsider, not as the natural standard-bearer of his party. From 1960 until now however we have not elected anyone directly from the Congress. Instead we have elected a series of state governors with relatively little national experience, with only Johnson, Nixon and the first Bush as exceptions.

Outside leadership has had its successes and its problems. Indeed most of our presidents, the great ones and the bad ones (yes we've had our share of those too) have been relatively inexperienced outsiders. Kennedy was having a great deal of difficulty passing legislation before he was killed. Clinton, no matter how good he now looks to some of us, was profoundly disappointing even to his supporters for missteps at the beginning of his presidency that led to the loss of the Congress. Bush suffers from a different problem. He simply had no knowledge and no understanding of how the world works. His one skill was the ability to bully people into supporting whatever he wanted, but he had no basis for understanding what he ought to do.

Nor is there anything magical about experience. Cheney and Rumsfeld had some and both have performed poorly. What my Canadian dinner companion was talking about was not merely experience which can be good or bad, but the confidence of the party. Our senatorial confirmation process does not do that job; the power of the presidency is too strong and the senators prefer to say yes. By the standards of a parliamentary democracy, none of the candidates on either side would measure up.

So all the candidates are a risk, untested where it counts, and each is beholden, not to their colleagues but to a variety of people who made their elections possible. Nevertheless all of the candidates on the Democratic side, at least those with any standing in the polls, are one term senators and only McCain on the Republican side has any significant national experience.

What people react to about McCain, however, has little to do with what he stands for and includes many people who disagree with his policies. Instead on both sides of the aisle, a large part of the contest seems to be about their sincerity. As a country we are judging the candidates for both sides the way we might judge our friends. We are not judging them the way we would judge people we would hire for our office or put in charge of our businesses.

I like to be inspired. I like Obama's ability to put important ideas into appealing language – although I was spooked by his objection to Clinton's observation that presidents and Congress had an impact on the Civil Rights Movement. For those of us who remember the troops and the marshals and the impact of federal funds on southern desegregation, not to mention the efforts of the Civil Rights Movement to get the support of the White House and the Congress, that's a very odd claim. Nevertheless eloquence galvanizes us and changes the terms of politics. Certainly Bush's ability to appeal to a portion of the electorate had something to do with his power. What people say and how they say it matters. I also like Hilary Clinton's experience. She's certainly made mistakes and she's obviously learned some lessons. As one of our favorite folk singers puts it, she's earned these lines.

So maybe my dinner companion was right. Maybe we should shift to a parliamentary system. Political scientists have been telling us for years that the presidential system doesn't stack up nearly as well as Americans like to think. I'm not sure they're right. Our primary system leads to more responsive politics. But neither am I happy with a contest of outsiders.

In the system we have, though, what I most want is a winner. So I'm weighing the odds like everyone else. And take solace in the fact that we are actually presented with a contest of very talented and able people.

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January 9, 2008: The Foreign Policy of Terrorism

Ian Shapiro of Yale has written a small gem of a book, Containment: Rebuilding a Strategy against Global Terror. Shapiro argues that the right approach to terrorism is the policy of containment, based on the work of George Kennan, as implemented over half a century by Administrations of both parties from Harry Truman through Bill Clinton.

The policy was implemented with mistakes to be sure. But it was premised on the inability of a dictatorial regime like the Soviet's to withstand the stresses of competition. Eventually, the internal poverty of the Communist empire led to its implosion in the late 1980s.

Shapiro points out that the policy has important ideological implications. It is not a policy of conquest and does not justify conquest. Hence properly implemented it can reduce conflict by reducing fear that America is planning to attack as long as other nations do not attack America.

The Bush doctrine of unilateral preventive war, on the other hand, gives no assurances of America's international citizenship and has been heightening opposition to rather than support for American policy and American security. That increases the stress on American resources and makes it less likely that we can protect our own security, let alone pursue less pressing objectives.

The Bush doctrine of preventive war becomes even more destructive when pursued on patently false grounds. The U.S. attack on Iraq was based on a strained and thoroughly politicized reading of intelligence and turned up no evidence whatever of the weapons of mass destruction and the facilities for making them on which the war was premised. Coupled with the enormous death and destruction which have resulted from the war, it means that America can not and will not be trusted with such momentous decisions.

And the Bush doctrine of unilateral preventive war threatens to go out of control. There are far more potential targets than our military could handle. Britain, France and Germany had to learn the lesson of national humility, of recognizing their own limitations and the burdens of trying to control a far-flung empire. Theirs was a painful lesson. We, of course, could learn from their experience, if we chose.

The policy of containment, by stressing international order, cooperation, and opposition to any effort by one nation to impose itself on another by force, takes a moral stand that other nations can buy into.

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December 18, 2007: Sound Bites and Crack

In a debate in Iowa, Hilary Clinton was the only Democrat who said that she would not favor early release for those convicted of crack offenses if the law were changed so that crack offenses were punished in ways equivalent to the punishment of other forms of cocaine.

The 100-1 differential in the penalties for selling crack cocaine and ordinary cocaine has resulted in much greater penalties for blacks than whites, with less chance for rehabilitation and productive return to society. When a federal judge decided to investigate whether the Department of Justice was discriminatorily charging people with crack offenses on a racial basis, the U.S. Supreme Court quashed his efforts. And so it has been a well known and widely reported fact that of those who sell drugs under any circumstances, the likelihood of punishment goes up at every stage of the criminal process for blacks, and blacks do time far out of proportion to their involvement in the drug trade.

When white kids sell some cocaine to their friends, their parents, friends, prosecutors and judges are all likely to treat it as a youthful indiscretion that they will shortly outgrow. No such assumptions are entertained for the black kids. So the white kids are returned to school. The black kids get sent to school for crime, which is what our prisons have become.

Some of us think that if white society thinks treating white kids as if they could reform if given the chance, there must be good reasons for it, reasons that can and should be applied to kids who aren't white, kids, and communities, we want to be law abiding and trustworthy. We believe that if white society thinks that you get good results by treating people as potentially decent, and rehabilitatable, then maybe we would get the same results by treating others with as much respect.

OK so there's a good argument to change the system. To try to move kids toward productive lives. But Hilary couldn't go there. Why? It's fairly obvious that she had to take a hit in the Democratic primaries in order to avoid a sound bite in the general election – Hilary would release convicts; Hilary coddles criminals. Now no self-respecting person coddles criminals. I coddle eggs but coddling criminals with the heat it takes to coddle eggs would be lethal. No one has warm fuzzy feelings toward people who break the laws. Certainly not the drug laws.

But you can't explain what you really want to do in sound bites. Productive, constructive politics, requires more than slogans and sound bites. And politicians with good hearts struggle with what will happen when we are confronted with those sound bites about how some awful folks want to coddle criminals, how they want these awful people to prey on you and me and our spouses and children. Gee I hope I never meet such awful people. Lord, above all, protect me from falling victim to those sound bites.

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December 11, 2007: IRAN and the U.S.

I was prepared to talk about the relation between Iran and the U.S. and then in the last couple of days came the revelation that the American intelligence agencies had come to the conclusion that Iran had stopped its development of nuclear weapons in 2003. Bush of course responded by labeling Iran a member of the Axis of Evil. So it's well worth putting all this in context.

There are three problems with the Bush Administration's handling of Iran: it misunderstands Iran; it misunderstands our own military; and it misunderstands America's strengths.

Hostility between the U.S. and Iran are not inevitable. Having lived in Iran and followed what has been going on, it is clear that there is a lot of support within Iran for better relations with us. But, instead, the Administration has strengthened the least friendly elements in the Iranian regime.

It has been widely reported that the Iranian government cooperated with the U.S. in Afghanistan and that it made diplomatic efforts to reach a rapprochement with us. But the Bush Administration ignored their overtures, thus strengthening the hardliners.

Iran is the closest to a democracy in the Muslim world, and its modernizing economic elites in Iran are quite friendly toward the U.S. Those facts should have put a lot of pressure on Iran's theocracy. But a bellicose Bush weakened the hand of our allies within Iran.

And a bellicose position also strengthens the hands of the hardliners in the rest of the Islamic world, including Pakistan and Indonesia, as well as Muslims within western countries.

That warlike posture is compounded by the Bush Administation's abuse of our own military. It is obvious that our servicemen and women are stretched very thin. Our Armed Forces have been designed to handle a couple of localized wars. They are in no position to take on the world and have not been constructed on the assumption that they would have to. It is crucial for American presidents to localize conflicts instead of broadening them. Even if it were a good idea to consider attacking Iran, misuse of our troops in Iraq has left us relatively weak with respect to Iran and other potential hotspots. Getting ourselves into more situations than our military can handle is only likely to hasten the transfer of world power to other countries. Only a fool forgets to assess his own resources.

America's strength had long been its moral position. We won that position at the cost of the lives of our soldiers in two World Wars. But we have been squandering the sacrifice of our Greatest Generation. That costs us dearly in the respect of potential allies and their willingness to work with us. And it costs us dearly in the enormous recruiting tool our bellicosity hands al Qaeda and similar radical groups. The wise leader calms conflicts, earns respect and dries up the well of potential recruits for terrorism.

Hotheads don't solve problems; they create them.

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November 27, 2007: The Divide in How We Think

There are many reasons why people took different positions over the proposal to provide official drivers' licenses to undocumented immigrants and I don't want to simplify too much. But there is a large divide between those who see the world in pragmatic terms and those who see the issues as defined by pure moral positions.

Security experts thought licenses would actually reduce the real, measurable problems that undocumented immigrants impose on the society. Aliens would come out of the woodwork. We'd know who they were. That would improve security. And we'd gain some control over their driving. That would improve safety.

But for others that was either nonsense or irrelevant. Many who objected thought the issue was more basic than whether the plan would lessen some problems. It was wrong. The undocumented had broken our laws by coming here and nothing should be done for them.

That's a big gulf in the way we think. For some of us, if something or someone is bad, it needs to be outlawed or punished, and never mind the consequences.

For others of us, the consequences are crucial. It would be nice to get rid of drugs or cigarettes or abusive and corrupt regimes abroad, but sometimes the consequences get in the way. I chatted with someone about Iraq. For him the war was justified because Saddam Hussein was a bad man. My comments and questions about the consequences of the war made no difference. It didn't matter whether the war resulted in the death of more or fewer people. It was a just cause. Case closed. Let's describe him as a purist. And the people who ask about the consequences, pragmatists.

The English utilitarians espoused pragmatism. It crossed the Atlantic to join here with the rough and ready Yankee and frontier spirit.

In the wake of World War II, utilitarianism got a very bad name. It simply didn't matter how many Germans supported the Holocaust. It was wrong. Case closed.

But as with most things, that's too simple. On some issues, the case is and should be closed. But policy sciences are all about the consequences of alternatives. Even dealing with the Holocaust would have posed alternatives - what way would have worked best, freed the most captives quickly, at what cost? The real world is about choices. Many of the choices are hard. But we make choices even if we refuse to think about them. And we have to live with the consequences.

This battle between purists and pragmatists helps poison our politics. Purists and pragmatists do not talk the same language and they can't come together without addressing that divide. Purists damn pragmatism as situational ethics or relativism, and pragmatists damn purists as insane.

Pragmatists rarely convince purists by citing policy outcomes. Only by talking in a moral language about right and wrong can pragmatists gain any kind of hearing by purists. Similarly purists have no chance of reaching pragmatists without talking about outcomes. Perhaps that's why they tried to speak about how the drivers licenses would be a security problem. Unfortunately, the experts did not agree. For their part, the pragmatists made no attempt to explain themselves in a moral language.

So the whole thing was frustrating all around.

I once wanted to run an ad asking whether you could go to heaven without supporting efforts to stop the killing in Central America. I wanted to challenge some religious groups who supported U.S. funding of Central American regimes that were fielding death squads and disappearances with our dollars. To pragmatists, opposing that misbehavior was a no-brainer. But the people in the organization I was working with shut me down. They were unwilling to use a religious message. I guess they were also absolutists on a different set of issues.

On so many issues, that divide needs to be crossed if we are to lower the temperature and increase the intelligence of what our government does, and does not, do.

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November 20, 2007: Global Warming Courtesy of Our Government

We are learning that global warming is gathering more speed than had been expected. This is particularly true at the poles where the ice cover is fast disappearing. The ice sheet reflected the rays of the sun back into the atmosphere. The water that is being uncovered absorbs much of the sun's heat. So the disappearance of the ice cover will speed up global warming.

So what are we doing? We have been taxing ourselves to add to global warming. We have arranged the tax code to finance the new mansions and suburbs that take more and more land out of cultivation and destroy the farmland that some of us can still remember. Plants use the sun's rays. Mansions and roads simply heat up.

Instead of making progress, we are making it worse, and we are using government to make it worse. Government tax breaks support outsourcing manufacturing to countries whose manufacturing processes pollute a good deal more than ours. Government tax breaks continue to support investment in equipment and machinery which pollute, and use forms of energy which add to global warming. Government investment in research is still going into forms of energy that increase global warming instead of reducing it. And the Administration is proposing still more research and investment into forms of energy that will add to the problem. The impact of our economy on global warming is not automatic. It is government issue. And it can be stopped and changed.

Don't be fooled by the talk about burning biomass in our cars. That has a minimal effect on global warming unless it puts more land into vegetation and doesn't burn more energy to produce and to use than current forms of energy. Otherwise it just takes petroleum to grow the plants, that we process by burning energy, into the biomass that we burn in the cars, forces us to go elsewhere for food, and puts more pressure on the remaining methods, woods and forests that help absorb the heat of the sun and use it in earth-friendly ways.

There are things we can do. We can paint our parking lots and driveways white to reflect some of the heat that comes our way. With government help, we could invest a lot more in photovoltaics that absorb the sun's rays in a form that is not heat and which generate electricity in the bargain. Government could put more land under cultivation because plants absorb some of the heat of the sun. We could demand that government invest in solar energy in our deserts and wherever there is sufficient sunlight. We could insist on wind farms wherever wind is abundant. We could, if we had the will, and if we were concerned about the lives of our children and grandchildren.

These are not decisions which affect each of us alone. They are decisions which affect our friends, our neighbors, our children and our grandchildren. When others bear the consequences of our decisions, regulation is quite appropriate. We could go green.

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November 14, 2007 - Texas and the Treaty Power

was looking at the transcript of an argument in the U.S. Supreme Court regarding whether the State of Texas is obligated to obey treaties of the United States. The conservatives on the Court seemed quite bothered by the idea that one of the States would be obligated by the language in a treaty.

These justices, for that is what we call them, are also the members of the Court most likely to claim that all we need to look at is the text of the Constitution in order to understand its meaning. So let's take a look. The second paragraph of Article VI says "all Treaties made, or which shall be made under the Authority of the United States, shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby." Seems pretty plain.

The Founders put that language there because the states had not been abiding by the language of the Treaty of Peace with Great Britain that ended the Revolution. And the Founders did not want to put state hot-heads in position to renew the conflict with England or any other nation. They crafted the language carefully so that it covered treaties made either before or after the adoption of the Constitution.

But Texas considers it beneath its dignity and some of the mighty members of the Supreme Court seem most concerned about the dignity of Texas. No doubt the treaty power is potentially broad.

So I have a suggestion which would solve many problems at once. I propose that Congress direct the President to negotiate a treaty which returns Texas to Mexico. Just imagine all the good that would do. At one stroke it would make part of Mexico a first world country. And the Mexicans would surely know how to treat all those oil barons. At the same time, it would solve a number of vexing legal and political problems within the U.S.. And then imagine the impact on the immigration authorities. They could actually deny a visa to George Bush. Now just think of the problems that would solve. Write your congressmen and senators today.

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November 6, 2007 - ISRAEL AND IRAN

There are many issues raised by the President's bellicose stance toward Iran. I want to use today's commentary to discuss the relationship between Iran and Israel, and the improbability that the President has got it right.

For starters, the President's Iraq policy undermined some of the factors that had once drawn Iran and Israel together – their mutual dislike of the folks in between. The Palestinians and all of Israel's neighbors are Sunni. Iran is largely Shiite. When I was in Iran there was an Israeli consulate. Iranians I knew there admired Israel, studied there, and many of them supported the drubbing that Israel gave its Arab neighbors. The Iranians, in fact despise the Arabs, describe them as uncivilized and accuse them of carrying on the slave trade. Relations between Sunnis and Shiites were poor. And Iraq had fought a very bloody war with Iran.

Under the Shah and even at the beginning of the Khomeini regime, Iran and Israel had decent relations as both sought allies against hostile nations in between. Even now Iran has no stake in the land dispute. Its only stake is in a pan-Islamic struggle and in religious sites. But U.S. intervention in the Middle East accentuates the Islamic, as opposed to the Sunni and Shiite struggle. It makes Iran a much bigger player in a pan-Islamic struggle than it could be in a merely regional one.

The Bush Administration had a choice. It could have tried to bring about the settlement of the Israeli-Palestinian conflict that Clinton had been working on. But that was Clinton. And it was peaceful. It was not about an opportunity for the U.S. to play Texas Gunslinger. So Bush ignored Palestine until there was lots of shooting. Then there was a role for a gunslinger. This Administration wouldn't solve a problem with their heads when they thought it could be done with guns.

But letting the problem of the West Bank and Gaza fester while relieving the Iraqi threat gave Iran an opportunity to strengthen its influence at the expense of Israel – on the theory that the enemy of my enemy is my friend. Turning a large portion of the Middle East, on both sides of the Sunni-Shiite divide into a single Axis of Evil creates a struggle between the Muslim World and the West that cannot be to the advantage of Israel. Hotheads don't solve problems; they create them.

What Israel needs are peacemakers. A half-century of war has not solved its problem. And it will not be solved until and unless this country begins to see more value in peace.

Steve Gottlieb is Professor at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America

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August 15, 2007 - Governor Spitzer, Senator Bruno and Evenhanded Justice

I've been thinking about the battle between Governor Spitzer and Senator Bruno. We've had lots of little exposés about which governor or senator used government vehicles or services when he or she should have used private ones. As government finances go this is penny ante stuff. But big or small there is some misbehavior involved in some of these instances. And so one suspects someone should be keeping track. If the state police are being used, they should have a way of accounting for the services they provide.

So what's the problem? Bruno may have made a mistake and the Governor may have caught him at it. But what fired Bruno up was that the Governor's office obviously got the state police to act for political reasons even if they should have been keeping records evenhandedly.

Interestingly there is a much bigger issue here. The U.S. Supreme Court has been unwilling to insist that prosecutors treat everyone equally. The Court< several years ago, held that the motives of the police and the prosecutors are irrelevant to what they can do. If a policeman or prosecutor is after someone he or she dislikes, fingers blacks or Latinos, Republicans or Democrats, the Court says tough. It doesn't matter.

So Bruno's anger gets at a deeper issue, the bias in the system, the profiling of certain kinds of folk, the misuse of discretion that the conservative Supreme Court says is just fine. The Court tells us that we can't give any advantages to minorities seeking to improve themselves, but we can look at the color of their skin when we decide if we're going to pull them over or give them a thorough going over. The Court tells us that bias is OK, depending on whose ox is gored.

So let's build on the recognition of the problem that Senator Bruno has brought to our attention and let's deal much more strongly with profiling, racial, religious or political; let's understand that all of us, liberals, conservatives and middle of the roaders have a stake in the evenhanded enforcement of the law.

Steve Gottlieb is Professor at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America

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July 27, 2007 - Music in the Schools

The testing that has come out of the No Child Left Behind Act focuses on reading and mathematics. In an effort to improve the "basics" some people are saying we have to sacrifice "frills" like music. Why do we teach music anyway?

As a kid I used to ask my dad that question. He was a Juillard trained musician who taught in the New York City high schools. But his answer was the musicians' version of teaching sportsmanship. That never made sense to me. We could and did learn teamwork in social studies and other subjects with team projects. Why music?

In New York at the time, music teachers taught required music classes of 70 or 80 students, many of whom had no desire to be in the room. It was a madhouse, stressful and depressing to the teachers. But there was more to the music program. Papa's pride and joy was his chorus.

Papa died at the age of 99, thirty years after he had retired. When the alumni bulletin for our high school printed an obituary, some of his students got in touch with me to tell me how much papa, or "Uncle Dave" as they called him, meant to them.

Although she doesn't remember it, my daughter once commented that musical talent in our family skipped a generation. She was absolute right and honest – I'm not very skillful. But she has built up a string program in a school district near Cleveland so that a large proportion of the children want to study violin, viola or cello! I sat anonymously in the audience one evening when she was about to conduct, and listened to parents who had no idea who I was saying "That Ms. Gottlieb, she's cool."

Aside from making me a proud son and a proud father, something much more important is going on. Some of it is about fractions. Students who are taught to read music have learned fractions – it's part of the musical language. Some of it is just about school spirit. Music is the banner that makes hearts soar. And as my wife once pointed out, for some of the kids, music is why they want to come to school at all. And for all of them, music is an activity, not sitting on their behinds all day but actively moving and creating. For many kids, music is an essential path to learning. For many more it is an important physical break that helps get the blood moving. For a few, it is a path to lifelong pleasure. Music isn't everyone's path. But activities that exercise their bodies in different ways, create school spirit and bring joy into the building are not frills.

Steve Gottlieb is Professor at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America

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July 24, 2007 - The Roberts Court looks the other way

The Roberts Court recently decided that the schools could not take explicit account of race in deciding which school a child attends. In doing so, the Court claimed that it was being true to the meaning of Brown v. Board, the 1954 decision that held that separation was inherently unequal, and unconstitutional.

But the Court has in fact lost touch with that momentous decision. Before Brown, leading to Brown, just after World War II, the Court repeatedly held that the curse of segregation was not what it did to black learning. States offered scholarships to out of state schools. But the Court responded that did not meet the states' obligation. A scholarship to Harvard would not compensate for exclusion, for separation from the people who would run the state, from the budding lawyers, judges, legislators, administrators and businessmen in the state. A scholarship to Harvard would not compensate for exclusion from the network of contacts that makes success possible.

Separation was unequal, not just because of its effect on how well the children learned. Separation was unequal because it cut black children off from the rest of us and thereby diminished their role.

And relief from segregation was not colorblind. From those decisions forward, relief for discrimination has often had to take account of race. If school districting could be race blind, new districts could be drawn that were as discriminatory as the old. The Courts had to look and did look to make sure that blacks were included. And the school districts had to look.

But other momentous changes were taking place. When Brown was decided, blacks and whites lived in much closer proximity to each other in many parts of the country. Segregation since Brown – now by other names – has continued to be government issue and has increased the physical separation of the races.

Federal agencies used their powers to prevent banks from lending to blacks who wanted to move to the suburbs. And prevent them from lending to blacks who wanted to invest in their own neighborhoods. Federal agencies financed the white move to the suburbs and forced disinvestment in black communities. Other federal and local agencies tore down black areas, calling them slums, and in the process they tore down neighborhoods, and all the social support systems that are part of functioning neighborhoods, neighborhoods that had been built on good jobs, and yes, on the work ethic. And as jobs moved to the suburbs, they were increasingly out of reach of urban blacks.

The Courts refused to make a dent in this destruction. This sorry record of official discrimination came to light after much of the damage was done. What was left was to cry over subsidiary decisions about where to put schools or housing. But the courts stayed out of that too. And the new suburbs were absolved by the courts of responsibility for the urban communities that spawned them.

For the Roberts Court, segregation now is just the result of individual decisions about where to live. So government should just let kids go to segregated schools. The Court says it would be racism to intervene. Racism to try to re-connect ourselves so that we learn mutually to understand, care and work together. That just locks in this sorry history that undercut Brown while the courts and the Department of Education were supposed to be enforcing it. But the Roberts Court prefers to look the other way.

Steve Gottlieb is Professor at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America

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July 17, 2007 - The Roberts Court and Conservative Immorality

The Roberts Court has just completed its second term. The best way to describe it is as completely dishonest.

Many arguments taken alone can seem plausible, though we might well disagree. But put together what the Court has been saying and what it has been doing and the only description is deceit.

When the Court restricts the application of federal law that deals with our problems with racial and other forms of discrimination past and present, the Court has talked about federalism. By insisting on states' rights it has curtailed federal efforts to correct the problems. But this term the Court had the opportunity to talk about federalism where state law went beyond federal law in various areas of economic regulation. Not one word about the sanctity of federalism. Instead the Court changed its long-standing interpretation of federal law to oust the states entirely of jurisdiction. The Court called this preemption. I'd call it slight of hand.

When the Court examined federal rules designed to regulate the environment or the economy, the Court suddenly interpreted federal law very narrowly, even though no state regulation was involved.

What lost in each of these cases was the people's ability to have their government solve the problems they were elected to deal with.

The conservatives have argued for years that we should not have government by judiciary. But of course they only meant the Court should stay its hand when they disagreed with the results. With their own people on the Court all bets are off. What the Roberts Court doesn't like is suddenly either illegal or unconstitutional. What it does like acquires the force of law. This is government by judiciary.

But even more upsetting to me, Roberts has concluded that where DNA evidence clearly showed that the evidence which put a man on death row was false, he should get no relief because, in Roberts view, even though the evidence was admittedly garbage, he hadn't proven his innocence beyond a shadow of a doubt. That has nothing to do with justice. Instead, Roberts treats people as so much garbage unworthy of justice.

I well remember conservative cries to impeach Earl Warren. His crime apparently was to insist that the constitution meant what it says and requires due process before we lock up or execute people, that it required equality in voting, equality in school, and concern for the defenseless. I think the conservative movement in the United States has to start owning up to its own immorality – the immorality of looking the other way when people are confined without evidence; the immorality of government by judiciary; the immorality of taking democracy out of the hands of the people for the benefit of those with the deepest pockets; and the immorality of ignoring the needy.

Steve Gottlieb is Professor at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America

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October 23, 2007 - SHOULD MUKASEY BE APPROVED?

The Senate Judiciary Committee has been interviewing retired Judge Michael Mukasey for Attorney General to take the seat left open by Gonzales. Mukasey has been unwilling to condemn any specific coercive interrogation tactics as torture. Torture, he says, is forbidden. But he can't identify it, and doesn't know it when its put in front of him.

More, Mukasey has told the committee that the President doesn't have to follow statutes. He has, according to Mukasey, constitutional authority to thumb his nose at statute law.

That, as a former federal judge should know, is simple hogwash being served up as an in-your-face dare – you guys in Congress, just get out of the way. Of course the Constitution says plainly that the Congress makes the rules for all departments of the government. And equally plainly it says that the President shall take care that the laws be faithfully executed. It means the laws, the laws passed by Congress, not the ones he makes up as figments of his own imagination.

Mukasey is serving up a piece of the discredited "unitary executive" theory and his testimony makes clear how dangerous those ideas are. But the most disturbing consequence of all is that the senators seem prepared to take this nonsense.

Does anyone in Congress have any spine? Does anyone have enough patriotism in his or her bones to stand in the way of the Bush march toward dictatorship.

Steve Gottlieb is Professor at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America

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Steve Gottlieb is Professor at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America

Back to the Top

Steve Gottlieb is Professor at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America

Back to the Top

Steve Gottlieb is Professor at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America

Back to the Top

Steve Gottlieb is Professor at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America

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