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Stephen E. Gottlieb

August 31, 2010: Backwaters are comforting, misleading, and very dangerous

There's been a lot of anti-immigrant sentiment lately, expressed in English only laws, antipathy to a projected Islamic Cultural Center, and Arizona's effort to enforce the immigration laws with a desert twist. Let's focus today on fears of people who don't speak English.

Colonists came here speaking a welter of languages including Scots, Irish, French, German and many others. Jefferson thought multi-lingual ability was a mark of true intelligence. In the early republic, there were many Pennsylvania communities where German was the essential language. I encountered an old Texas community that clung to German until the troops came home from World War II.

Corporations and the military struggled with towers of babel and undertook the task of organizing and training recruits and employees so they could function. None of this is about loyalty. Few are more aware of the blessings of America than those newly arrived. Some corporations had a training program that ended with a symbolic melting pot out of which the ethnic immigrants popped as Americans.

I don't think my grandparents ever mastered English. It certainly wasn't my fathers' first tongue – though those who still remember him would be surprised to discover it. His A on an English paper was one of his proudest accomplishments.

Unlike dad, mom was not born in this country – she came as a girl of eight traveling in steerage with a twelve year old brother and spoke no English. But you wouldn't have detected an accent. Neither wanted me to learn their native language – my parents spoke Yiddish to each other when they didn't want me to understand. Many in the next generation, like me, wish we could have grown up bilingual, speaking English but understanding the language of our parents. Far from refusing to learn English, the children of non-English speakers are typically used as translators by their parents – at the bank, with the landlord, wherever. Scary? Not really except for the people who are trying to survive in a world that doesn't speak their language.

My wife has taught English as a second language. She learned to do it for the Peace Corps and has done it here when occasion required, always to people who gratefully appreciated her help. There is a skill to it, particular ways that one teaches people who are not native speakers. When my wife and I were in training to join the Peace Corps, no one set us down with books on Persian grammar. We weren't mainlined with Persian speakers. It was all oral, all patterned, so that we learned instinctively the way that small children pick up a language, by interaction.

Unfortunately we have had little opportunity to take advantage of our Persian language training since we got back except for a little nostalgic conversation with our Persian-American friends.

That points to a larger problem. Americans are trained in so few languages, that we always face a shortage of people who are fluent in other languages when we need them. Many schools stopped teaching German after World War I. Russian? Forget it. That didn't save us from having to fight Germany again and a long Cold War with Russia.

Contemporary world politics requires people fluent in Arabic, Farsi, Chinese and other languages. Sadly instead, Americans try to bleach foreign languages out of the people who might be fluent in them. It puts us at a huge disadvantage.

Where people run away from the vitality of a polyglot world to separate themselves from immigrants and people who speak strange languages, they create backwaters. Backwaters are comforting, but misleading, and very dangerous.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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August 24, 2010: Islamic Cultural Center

I find the rhetoric about the Islamic Cultural Center scary.

People generally acknowledge that the First Amendment protects the right of Muslims to erect a religious building or cultural center. But there's another clause that is as central to what it means to be an American. The last portion of Article III includes the words: "no attainder of treason shall work corruption of blood." Translated that means that guilt is personal. We do not visit the sins of the parents on the children or vice versa. Nor do we imprison siblings for the crimes of brothers and sisters. We take people as individuals. That of course is the conservative objection to affirmative action – that it is about groups, not people.

We don't trace crimes to their source and exterminate all the progeny of the wrongdoers. Nor do we punish or disadvantage them. We don't accuse Christians because other Christians have owned slaves or slaughtered innocents. Today's Jews are not responsible for the execution of Christ. And even the father of Anne Frank, who died in a concentration camp, refused to express anger at Germans as a class – some Germans killed his family, but certainly not all.

That distinction between the individual and the collective is an important part of American principles. It is a central barrier to notions like ethnic cleansing and genocide. It is the line that defines the difference between innocent civilians and legitimate military targets.

Blur that line and we are all dead.

There's some controversy over the exact text but Martin Niemoller said something like:

"THEY CAME FIRST for the Communists, and I didn't speak up because I wasn't a Communist.

THEN THEY CAME for the trade unionists, and I didn't speak up because I wasn't a trade unionist.

THEN THEY CAME for the Jews, and I didn't speak up because I wasn't a Jew.

THEN THEY CAME for me and by that time no one was left to speak up."

The principle, if it is a principle, applies to Muslims. And it should apply to Muslims just as much as to the rest of us. It should apply because no one in his or her right mind thinks Muslims as a group are guilty of anything. I was treated with kindness and respect when I lived in Iran. I certainly despise their current government. But the people I knew were lovely and kind, and the Persians showed the same dispersion of the good and the bad that is true of other peoples.

But no group is as likely in this world to be misunderstood, to have their intentions distorted by the prejudice of others. We need Muslim cultural centers where we could all drop in and remind ourselves that Muslims died in the World Trade Center just like everyone else who was there, that Muslims in America mourned those losses like the rest of us, and that our Muslim neighbors were not on those planes, were not part of those conspiracies, and that just as large a proportion of Muslims are decent, kind, loving people, as the rest of us.

What we do not want is the privilege of citizenship defined by the most prejudiced among us. May the God of all of us help us all.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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August 3, 2010: Overkill

More than two centuries ago, Jeremy Bentham explained the virtues of moderation. If you cut off people's heads for the most minor infraction, you encourage the petty thief to kill. Criminal sentencing needs to be graduated. Pure vengeance puts society more, not less, at risk.

Decades after the Rockefeller Drug Laws were past, we seem to have learned that lesson with regard to sentencing for minor drug crimes. But now apparently we need other villains whom we can punish without restraint.

One such villain we label sexual offenders. We make it almost impossible for an offender who has served his sentence to find a place to live or work, virtually guaranteeing that they will join the ranks of the underworld. They have no choice. And we label people sexual offenders whose crime was to open the pages of the wrong magazine. Our punishments are so out of proportion that finding ways for people to reintegrate into society, and live productive lives, is now a major issue.

Of course we don't just do it with drug crimes and sexual offenders. Cigarettes are clearly bad for the health of all those who breathe the smoke. So we give ourselves the privilege of constantly heaping more restrictions. But it's not OK to encourage a black market, with all their criminal trappings. And I'm not thrilled at turning on the Native Americans every time they get their hands on something that makes them any cash, casinos, now cigarettes, and saying sorry we want that. There is such a thing as going too far.

Of course the newest villain is BP. They certainly are blameworthy. But the pleasure at having a whipping boy is blinding too many people to the larger issues, the larger record of spills from off-shore wells and the transportation of petroleum by ships, trucks and pipes, and the larger record of global damage from hydrocarbons. No it's not the case that heaping enough penalties on BP will solve our problems with off-shore drilling or any drilling for oil.

The larger issue seems to be that we have lost the politics of proportion. It's all or nothing. The tea-party movement can't think of anything worth paying taxes for or any government regulation worth having. Vocal business interests shout shrill slogans about squelching innovation – as if innovation was the same thing as good and didn't also come as clothing for fraud, foul play and dangerous products. And no you can't count on the fact that most people are decent because in too many areas of life, the bad drives out the good unless we have watchdogs who are able to stop it.

The tea party makes a tea party of the Constitution. They see a clarity to two century old text that just skips over all the complex questions of meaning and intention and how the founders and the Constitution they wrote adapts to new problems in new situations – and conclude that they wrote a Constitution designed to keep us in the 18th century and unable to adapt to the 21st or to govern ourselves democratically in response to our current problems and issues. It must be nice to see things so clearly, so simplistically, that the Founders would not recognize those who claim to be their accolytes.

All or nothing is easy. Good or bad. One or the other. Moderation takes more sophisticated thought. There are more things to think about. Problems aren't so easy and answers aren't so clear cut. But we have lost the politics of moderation. Some people call that moral clarity. But attaining clarity by driving blind is immoral. Woe be it to us.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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July 27, 2010: Israel and the spread of the Muslim population

The so-called Six Day War took place while I was still working in Iran. I listened with my host on his short-wave radio to reports from the BBC. Hassan was Muslim and felt torn. He was an agricultural engineer who had studied Israeli farming methods and admired them. Iran in those days had a constructive relationship with Israel. I myself was in the Israeli embassy in Tehran.

In a straight up war with its neighbors, it was possible for everyone to come out ahead. Everyone understood Israel had the right to defend itself. Egypt, Jordan and Syria massed for an attack. Israel launched a preemptive strike. And it won some territory B that happens in wars. Little Israel had taken on most of the Arab world and won. Many Iranians admired what they had done. They didn't much care for Arabs then, even though they were Muslim.

Then the Arab states launched a surprise attack in the so-called Yom Kippur War in 1973 to make up for their losses. It was mostly a standoff but Israel's neighbors could feel that this time they stood up to Israel. The attack made Egyptian President Anwar Sadat a hero. Six years later he signed the first peace treaty with Israel.

But other than total war with its neighbors, Israel had been pursuing a policy of retaliation to punish and prevent isolated attacks. Palestinians would fire rifles or lob missiles or granades and a few days later the Israelis would launch a retaliatory strike. Even from then relatively friendly Iran, it was clear to me that such a policy of retaliation could not bring peace. But I didn't have the words to explain my feeling about it.

Something else was amiss. The Israelis seemed to believe that time was on their side. All they needed to do was to defend, retaliate and wait til everyone else came to their senses. But in those days, it wasn't even clear who the enemy was.

It's clear enough that the Arab world did not back off. But something else has happened that makes the Israeli gamble unsustainable B demographics. In much of the world, this country included, the Arab and the wider Muslim populations have been growing substantially. The people I know from that part of the world and I agree to disagree. We discuss issues respectfully and within polite limits. But in politics, the question isn't necessarily whether they are right or I am right. The question is votes. And that calculus is changing. It has clearly changed in Europe. It will inevitably change here.

So what should Obama be saying to Netanyahu? For Israel's own good, he should be scaring the pants off Netanyahu. There will be no peace, there can be no peace, while Israel is convinced it can wait out the Arab world. Peace, now, is the only path to Israel=s survival. And it had better be prepared to sacrifice a great deal for it. There is no other way.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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July 20, 2010: Politics in Afghanistan

There has been a lot of talk about how knowledge that American and other troops would withdraw from Afghanistan would encourage the Afghanis to step up to the plate and fight the Taliban on their own. That view has been convenient in the US. It suggests that Americans can withdraw without consequence for the war there.

That's really a very strange view and suggests a complete inability to put ourselves in the place of Afghanis. Even very small children understand that things look different to other people. Americans are very experienced at democracy. We should be experienced at figuring out how things look to politicians. But it has been pretty obvious that Americans have not been able to put themselves in the shoes of Afghanis, or for that matter, any of the Middle Eastern or Asian peoples.

So we just get put out with Karzai because he has not been playing according to the American rule book. Instead he has been negotiating with the Taliban. Surprise! We announce that we are going to pull out and he=s trying to make a deal with the enemy! Nor has he taken on the warlords that we have come to despise. The guy has been behaving like a politician. How could he do that? Don=t they have elections? He should be behaving like an American agent, not an Afghani politician. After all, who established the elections there and put him in office. He should be grateful. Instead, he is behaving like a politician. Amazing.

So let's play it straight. Our pull out is going to mean that the US loses influence in Afghanistan. Gratefulness is not a political strategy and the Afghanis are going to adjust to their new reality.

There are some other new realities. The world is not very tolerant of occupation of someone else's country. It does recognize retaliation. But not occupation. The world was horrified by 9/11 and it did rally behind our effort to curtail the threat, behind the initial entry into Afghanistan. And in 1990 it did rally behind teaching Saddam Hussein a lesson. But in 2003 it did not rally behind forced regime change and conquest, in Iraq. That war made our motives in Afghanistan seem much less pure and, despite initial support, the world has now recoiled against the long term occupation of Afghanistan.

All of that affects our ability to achieve our objectives. Had Mr. Bush understood the very real constraints this world imposes, we could be in a much better position now. Invasion is much easier than occupation. Occupation requires a much larger army than the US and its allies have been willing to sustain in the field. And while invasion divides and demoralizes a weaker enemy, occupation unites opposition. Which is to say that overreaction is less effective than a measured reaction.

So what now after all these mistakes? We have made the point that we will respond, with great force and very destructively to attacks on our soil. But our presence on the ground offends Afghani patriots. It's not all about the U.S. Americans need to understand that, for better or worse, people are nationalistic about their own countries. Invaders are not popular. And it puts Afghanis in danger from our attacks, and in danger from the Taliban if they cooperate with us. There are good reasons for Afghanis not to welcome us.

So it's time to return to the strong moral position America and it=s allies once had B that we will defend ourselves, we will retaliate and make anyone who would try to harm us pay dearly, but we do not seek to rule. In other words it=s time to find a way to leave Afghanistan to the Afghanis so long as they leave us alone.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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July 13, 2010: The Devil's Budgetary Deal

Let's talk about the budget. The whole business of government deficits has been a political smokescreen for decades. The Reagan Administration deliberately used deficits as a way to force cutbacks in what had been popular social programs. What the first President Bush called "voodoo economics" was a convenient way to camouflage the real objective of trying to take apart programs that had worked well, and helped to keep us out of another depression, for half a century. Reagan's budget director was explicit. But it was obvious. For decades Republicans had been screaming about deficits. Then they enlarged them. Deficits were then used as a tool to attack what had been invulnerable. Suddenly even Social Security became a problem. That was Reagan's success B or failure.

The younger George Bush did it again. All these balanced budget hawks came in and immediately decided to unbalance the budget, not because there was a problem but because a balanced budget didn't give them the excuse to cut more social programs. So they unbalanced the budget by giving large tax cuts to people who needed none and then claimed they had no money to give a hand up to people who needed one, for education, Social Security and other programs. More cuts.

When George W. Bush took office in 2001, there was no good reason for deficit spending. Despite the internet bubble, the fundamentals of the economy were strong and we'd had a decade of strong growth. Good times are times to keep the budget in balance and build up a surplus for future hard times. Clinton was onto that project.

But bad times are times for deficit spending. The very definition of a depression is when a large part of the economy starts economizing at the same time. If one business, even one city, economizes by laying off some workers, they should be able to find jobs and there should not be any significant impact on the economy. If lots of firms and governments start economizing at the same time, they create a whirlwind B less employment and less money force still more people to do the same until the economy hits bottom and we're all out of work. It just isn't true that we can all do the same things at the same time without disaster.

Now Republicans, conservatives, Tea Partyers are still screaming about the budget. They claim the budget is out of whack and they want to cut revenues even further. But I cannot accept all the Tea Party nonsense at face value. Cutting budgets now will deepen the recession. It's the wrong remedy at the wrong time.

There's a big subterfuge at work. It's not about deficits. It's a back door attack on programs they don't like but can't attack except on budgetary grounds. Who could attack education except on the claim that we can't pay for it even while they insist on cutting those sources of revenue that don=t depend on the very unfair property taxes? Who could attack Social Security except on the claim that we can't pay for it? But if they cut the budget again, all we'll have left will be the survival of the meanest and best armed bullies.

So the Tea Party budget hawks are really offering us a deal with the devil, a path to hell, when all of us will need those social programs we don't have any more. To get rid of the social programs they don't like, they're willing to put millions of people out on the street selling apples and sleeping under cardboard. I'm not willing to deal with that devil. Better to run the devil's minions out of politics.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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July 6, 2010: Conservative, Republican, Activist Courts

Republicans have complained about activist judges for decades. But actually they like activist judges who garble the law.

Here's a story in three parts of conservative, Republican, judicial activism.

Let me start in 1925 when the Federal Arbitration Act became law. Congress can regulate interstate commerce. The law said arbitration clauses were enforceable for business contracts in interstate commerce but not for employment contracts in interstate commerce. The term interstate "commerce" meant the same thing in the section mandating enforcement for commercial contracts and in the section exempting employment contracts. As a result, employment contracts were not governed by the Federal Arbitration Act.

In 1925, the Court interpreted interstate "commerce" very narrowly. As the Court then understood it, few businesses were in interstate commerce. If they were, arbitration would be enforced but not for employment contracts. Interstate "commerce" meant the same thing in the section mandating enforcement and the section exempting employment.

Part 1: In 2001 the Rehnquist Court reread the Arbitration Act. It read contracts in interstate "commerce" in section 2, mandating arbitration, broadly, the way interstate commerce is now generally understood. But it held interstate "commerce" in section 1, which exempted employment contracts, should be interpreted the way it was in 1925 B very narrowly. That turned the Act on its head so that it enforces arbitration clauses in all employment contracts. That=s activism.

Most arbitration clauses are written by large companies and presented to the rest of us in Asign here@ form. The clauses specify how arbitrators are chosen, where arbitration will take place, how much it will cost to arbitrate, and generally whether an employee will have a prayer of justice.

Anyone familiar with arbitration understands that arbitration can have huge advantages but that it can be constructed to put huge biases in the face of occasional claimants trying to take on big companies in arbitration.

Part 2: The Court has continually revised the Federal Arbitration Act to amplify the biases of arbitration. It requires arbitration despite violations of federal or state statutes. In cases flying under most people=s radar, the Court has effectively rewritten federal and state labor and consumer protection law, rewritten it wholesale, not picking on provisions that might be wrong in some way, but simply disabling federal and state protections wholesale.

Few have been aware of these cases. But Republicans and conservatives have noticed B they plan litigation campaigns to take advantage of the Court=s arbitration cases.

Part 3: Now the Roberts Court has decided that the arbitrator gets to decide whether the contracts that specify arbitration are so grossly unfair that they are illegal under an ancient doctrine known as unconscionability. So arbitrators required by company contracts get to decide whether the arbitration clauses are legal.

How they did it shows what Roberts meant by the fairness of an umpire. Prior decisions said challenges to arbitration clauses in contracts should go to a Court. So companies hand job-seekers two pieces of paper, one the "employment contract," the other just an "arbitration contract," saying sign both. To everyone but conservative judges with an ax to grind, that's one deal, one contract. But the Roberts Court said great - the case is different ? because there are two contracts, the fairness of the arbitration clauses goes to the arbitrator.

The reality is that the Roberts and Rehnquist Courts have been two of the most activist Courts in US history. They figured out that they could fly under the radar while reaching some of the Court=s most activist, and bizarre decisions.

I=ve heard it said that the Republicans own the complaint about activist courts. It=s time to hoist them on their own petard B they are the activists, largely in pursuit of special, well-heeled interests who use the law to take advantage of the rest of us. Shame on them; shame on the Court; shame on the conservative hypocrites crying activism.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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June 29, 2010: What Will the Gun Rights Decision Do?

For most people, firearms are invitations to self-destruction or murder. A significant percent of the people killed by the police are unarmed. Tests show civilians are much more likely to pull the trigger than police. I've taught a descendent of the feud between the Hatfields and the McCoys. Murder leads to demand for revenge. But as we've seen around the globe, revenge is often exacted on the innocent, widening the circle of combat.

I was on a call-in program with Alan Chartok when the Court's earlier gun rights decision came up. I commented about the danger of private paramilitaries and a caller interpreted that as meaning the decision was OK because it wasn't about paramilitaries. It is a mistake to think of weapons only in individual terms. People will do what they will with firearms. They do it in gangs, in crime syndicates, and in private paramilitaries.

Both here and around the globe private unauthorized paramilitaries train for the day when, in their own uncontrolled opinion, they will have to take law into their own hands. We've seen what Blackwater has done despite officially sanctioned training. Their misbehavior deepened our difficulties in Iraq. Elsewhere, private paramilitaries have turned themselves into the death squads that made a mockery of law, order and justice in Latin America. Paramilitaries have served so-called warlords that turned their populations into serfs and soaked their countries in civil war. Arms will be misused.

Paramilitaries also spawn loners like Timothy McVeigh who bombed the federal building in Oklahoma City and Faisal Shahzad who attempted to bomb Times Square.

Many of the takeovers by the most brutal dictators have supposedly been to quell the violence. Hitler was handed the keys to the German dictatorship on the supposition that he could stop the bleeding his own Storm Troopers were creating. The arming of a population is an invitation to mayhem and civil war.

Police rightly fight against the spread of weapons.

In the US, we are blase about the risks of private paramilitaries training in woods and on plains around the country, organized only by the most outrageous extremists because we imagine our Revolution as a popular uprising from below. In fact, we avoided the worst pitfalls of revolutions around the globe because ours was managed from the top, by state governments that reorganized themselves when freed of British governors. George Washington was chosen almost from the beginning to lead the Revolution by a national Congress meeting in Philadelphia. Our Revolution never lacked organization. It never amounted to self-appointed paramilitaries doing as they would. Thank heaven.

Politically, it's harder to tell what this decision means. Some defenders of gun rights have objected even to bans on assault weapons on the ground of a slippery slope. Perhaps this decision can satisfy them that some level of gun rights is not going away so they can accept some controls – though the gun lobby's lawyers have already said their first target will be to make it possible for people to get guns who are under court orders to stay away from women they have assaulted or threatened. That doesn't sound like the voice of reason from the gun lobby. On the other hand, perhaps the decision will invigorate those of us who think the spread of guns is a threat to civil society.

The politics of Supreme Court opinions is not fore-ordained. And the level heads among us had better make sure that this decision doesn't mark the plunge into the insane world of murder and reprisal that has dug so many graves in such a large part of this world – graves for millions of people, and graves for free and democratic government.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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June 22, 2010: Less government is what got us in trouble

The oil spill continues to fester. Apparently the government made some errors that facilitated the oil explosion and leak in the Gulf. It gave out permits it should not have given and it failed to watch closely enough to enforce safety rules. Some people will mindlessly use those errors as an attack on government, as the basis for saying we need less government, not more.

But that=s exactly what they got in the Gulf. It was a private driller=s paradise B no government, no regulation, just do whatever you pleased; nothing to stand in the way of innovation, production and cheap oil.

Except of course that the problem was that we had no government, no government to police the rules of the road, no government to represent the interests of everyone except the oilmen, no government to protect the Gulf and all the people whose livelihoods depended on the waters of the Gulf B if indeed the damage is restricted to the Gulf.

It seems to be a well kept secret but not all businessmen want an unregulated marketplace. For some businessmen, lack of regulation means that their competitors are free to degrade quality and safety. What=s worse, when competitors advance their own firms by cutting protection for our safety, those who want to protect the rest of us may be driven out of the business by those cheaper competitors, a clear and common example of Gresham=s Law B the bad drives out the good. So responsible businessmen actually seek regulation that sets a floor under everyone so that they can produce the quality products they want to produce, or produce the oil in an environmentally safer way.

I can just hear those fake know-it-alls claiming that people can choose what they want to pay for. But who got to choose the oil spill in the Gulf? And even if you could choose, knowledge is costly B it takes time to find out about the dangers we face and more time to find out how our market choices can allow us to avoid it B which companies are printing the mercury content of their fish, for example?

And if you are among the lucky one=s who make the time to get some of the information we need to live more safely, why should each of us have to spend that time when it would be much more efficient for one group of trained professionals to spend the time learning much more than any of us could individually and regulate what would otherwise be dangerous products or put the information in front of us. In other words, economically, yes, according to the rules of Adam Smith, government can be a very efficient way to solve problems.

Except for the folks with blinders on their eyes and microphones at their lips. What we need is better government, not government abdication. Oh and for all those who would be inclined to quote Jefferson, he thought so too. That's why he was involved at the founding.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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June 15, 2010: Lessons from Machiavelli and Clausewitz for the US and Israel

The world, and some of our friends in the peace movement, has an enormous double standard directed against Israel. Palestinians attack and their attacks are coordinated and serve as the avatars of foreign governments. For more than half a century they have inflicted seemingly random and unpredictable death and destruction on Israeli civilians. Most of the world ignores the damage. The Israelis strike back and suddenly everything is wrong. As George Orwell pointed out the world would choose sides based on perceptions of race.

But history cares not at all about justice. History marches to the beat of the stronger. And if people=s perceptions of justice figure in who will be stronger, history ratifies their judgment, And by that standard, it is all over. Israel is doomed. Every step it takes only further seals that doom. It doesn=t matter at all that I am saddened or find it unfair and unreasonable. Stuff happens.

Machievelli wrote many centuries ago that the wise ruler does his most oppressive acts quickly and soon and then puts it behind so people begin to forget. Israel is not the only nation to have ignored Machievelli. George Bush put us on that path in Iraq and Afghanistan. A thousand cuts each making more life dangerous, more painful, for the people we claim to want to help, confronting them with life or death choices B back the Americans or this or that other group. It has dragged out now for nearly a decade. I'm sure they are thanking us.

War changed forever when citizen armies took the field in the 18th century. It led to an arms race. And it turned the people into an object of war-making. In this world of mass warfare, victory, if it is possible at all, demands rivers of blood, sweat and tears. Globalization has changed it still more. Neither Israel nor the US can win our conflicts without substantial support both locally and worldwide. The Palestinians, al Qaeda and the Taliban have too many places to go and both we and Israel face too many limitations on our actions.

Carl von Clausewitz, the famous Prussian military theorist, wrote that war is a continuation of politics by other means. The reverse is also true. Politics is also a continuation of war by other means. And the failure of politics may make war unwinnable.

I know it is hard for the war hawks and the people who pride themselves on their toughness to understand that lesson. But misreading politics is weakness, not strength, like a bad bid in a poker game.

Refusal to read the politics accurately is a characteristic weakness of democracy. The politician who says this war should not be fought seems weak to the voters. The politician who advocates a restrained and focused response to international terrorism will often be hounded out of office. Few had the courage to risk Bush=s call to arms. Less than a quarter of the Senate voted against the War in Iraq.

But if Israel is to survive and if the US is to remain strong, we need to mature in our reactions to world politics, threats and even to terrorism B not because we surrender to it, but to have any hope of defeating it.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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June 1, 2010: Qualifications for Judicial Nominees

We have discussed on several occasions nominations of Supreme Court justices. Chief Justice Roberts famously compared the job of a justice to the job of an umpire calling balls and strikes. You stand behind the plate and if the ball travels inside that territory called the strike zone, it's a strike; if not, it's a ball. The strike zone is real and measurable, although baseball has chosen not to use high tech equipment to second guess the umps.

But how can Roberts apply that to law? The Constitution includes some wonderfully majestic and undefined phrases like due process, equal protection, freedom of speech, commerce among the several states. It includes descriptions of the powers of the president and Congress that do not discuss the modern conundrums in which we find ourselves. There is no instant replay camera that can tell us whether the ump got it right or the ump got it wrong. In the ballpark fans yell "Kill the umpire" but it's the language of partisans, not verification.

In our Constitutional Convention delegates talked about judicial discretion. They understood, in the language of James Wilson, representing Pennsylvania at the Convention, that a law might not be "so unconstitutional" that the Court would disallow it. That more or less, that "so unconstitutional", is the language of discretion. And the founders of this country, the creators of our laws, understood it very well.

So how can one apply that kind of analogy to law? As if the majestic uncertainties of our Constitution were in fact numbers in an accountants ledger? Only one who has not been exposed to other ways of understanding or one so arrogant in his or her own views not to be able to respect the thinking of others, can see the Constitution is those terms. On law faculties we discuss meanings endlessly, trying to improve our understanding of the Constitution, expecting different views and welcoming the discussion. We may be passionate. But we are not blind and deaf to the views of others, incapable of imagining other ways of understanding. But if you've never been exposed, or never learned to respect the views of others, it's possible to believe there is only one way.

Most of us start that way; as we are first exposed to the Constitution in our youth it has all sorts of meanings that seem obvious to us just as our politics seemed obvious then. But as we mature we come to understand the complexity of reality, and appreciate different ways of thinking. The Constitution is not child's play. That's why it requires judgment. And that's why the claims of people like Roberts and Scalia that the Constitution is clear and there is only one way to understand it, that we can read the text and know what it means, is either naivete or cynical manipulation. Either way it evinces a lack of respect that is inappropriate in a democracy.

Indeed lack of respect for contrary views has become a great problem in contemporary America. Many of us grew up telling each other that one of the marks of democracy is respect for the opinions of others. Members of the highest court in this land ought to be people who understand that.

So I hope Elena Kagan has strong, passionately held views, views that are quite different from the reigning ideas of Roberts, Alito, Scalia, Thomas, and often Kennedy, in the breadth of her understanding. We can do better than appoint judges whose sense of certainly is the result of cynicism, ignorance or arrogance.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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May 25, 2010: Dump Stereotypes About Government

Attorney General Cuomo opened his campaign for Governor by attacking state government. Frankly I'm tired of all these attacks coupled with the systematic failure to acknowledge all the good work being done by state government.

I'm not naive. I know there are people out there who are not doing good jobs. I know that there are programs gone awry or miscast from the beginning. That's true in all fields of life. But living in Albany I also know people who are working their hearts out for the people of New York State and I have no doubt the same is true of the other states our listeners live in.

I know these people as neighbors, former students, people I meet in community projects. When we first moved in to Albany, one of our neighbors was shortly to become the head of the Environmental Bureau of the Attorney General's office. He had offices both here and in New York City and worked long hours on the public's litigation. Some of the most exciting environmental litigation in the country was being handled in his office. The work excited and drove him. The staff he acquired continue to be recognized as experts in the field. But some years ago an election resulted in another politician running against government and he stripped the office of its experts. Sometimes it is important to recognize the quality of the work being done lest we lose it.

Right now the public outcry about the closing of state parks is an indication that the people think our Park Service is doing an important job, doing it well and deserve our support. One of my former students is the great grandson of the donor of one of those parks and he is fighting, not to get the land back, but to keep it where it belongs, in the hands of the State Park Service and open for business.

I've known a number of people in the NY State Department of Health. I doubt the public understands just how valuable the State Department of Health is. People in the Health Department are scientists. They spend their time trying to identify infections, stave off health threats and keep us healthy. They run some of the largest and most important laboratories in the nation, indeed in the world. They don't spend their time figuring out how to tell the public that they are doing a great job. But someone needs to acknowledge their work.

Another person we know works on a project trying to deal with the impact on New York's coastline. She stunned me when she told me that New York has more than a thousand miles of coast line – not just NY harbor but both sides of Long Island, both sides of the Hudson which is tidal up to Albany, and the shores of Lakes Erie and Ontario. All of these and more will be affected by rising waters, just as the health of New Yorkers will be affected by organisms that will grow in a warmer climate. Their work needs to be acknowledged so that we are smart enough to protect it.

Certainly there are mistakes being made and there are problems with the way the legislature works and other structural problems. But politics has become a war of stereotypes. And that is unhealthy. It is no more true that government employees can be painted with the same verbal brush than it is true of any of the groups we identify with, whether our ethnic, religious or racial background, or people in our niche in the economy. Maturity and common sense requires outgrowing childish stereotypes.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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May 18, 2010: Greece and the Multiplier

Americans cheered for the Greeks as they fought for and won their independence in 1830. For most of the intervening years we've had issues nearer home to think about. And Greece is far away. But recently it has been having difficulties which threaten European economies and perhaps our own.

The obvious fact is that Greece is in debt and does not seem to have the wherewithal to pay its debts. So the remedy being forced on it is austerity. Cut, cut, cut expenditures. Cut pay, cut workers, cut benefits, cut programs, just cut, cut, cut.

The problem is, however, that the cuts will also cause trouble. All the people who are employed by the Greek government, who work on government projects, or depend on government programs will now have less to spend. And so too all the people they did business with, all their suppliers and the businesses they patronized will also have less.

This is known as the multiplier effect. If you or I stop buying from one place and turn our business elsewhere, it is a drop in the bucket of the national economy. But when we all pull in our belts at the same time we call that a depression. And the repercussions become a kind of black hole that pulls the economy increasingly downward. When a country contracts the impact can be very large. There is an enormous difference between the impact of individual decisions and the systemic impact of all of us doing the same thing at the same time. When a country collapses that is much more like what happens in a depression. Countries are just too big. Think for example what happened in Michigan when GM was near bankruptcy. Size matters. So what is Greece to do?

There is something else going on in Greece. It turns out that the rate at which Greeks pay their taxes is extremely low. 98% of Greeks denied owning some forms of taxable property. The black market is huge, largely representing refusal to pay taxes. And the size of the withheld taxes is close to the size of the Greek debt. That really limits Greek options.

Is there a lesson on this side of the Atlantic? New York and many other states are contracting their expenses. That will have very predictable multiplier effects as each state shrinks its own economy and those of its neighbors and trading partners. The result is likely to deepen the depression we have been in since 2007. The extent of the multiplier and its effect on taxes will mean that states will not get out of their hole. They'll spend less. But they'll collect less. And they still won't be able to pay their debts. The world tried that solution in 1929. The result was worldwide disaster.

Turn away for a moment from the loudmouths yelling about cutting programs and taxes. Restoring some of the taxes unwisely cut by the Bush Administration actually puts money in circulation and what had been a vicious circle can become a virtuous circle in which we all gain because the taxes we pay aren't the end of the story. The taxes we pay are an investment in the economy and we benefit from the general welfare, just as most of us lose, not benefit from the economic misfortunes of others.

Of course government funds can be spent wisely or foolishly. But government investment in infrastructure and in the services that underlie a strong economy and clean food, air and water keeps on growing the economy.

It's time to toss the tea-party nonsense overboard and start making some level-headed good sense, both here and in Greece.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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May 11, 2010: Let's show some respect for those who have little else

As I left a shopping plaza a few days ago I spotted a woman, probably in her 30s, with a sign that read "Homeless veteran." I have not been able to get her out of my mind. It's not the paltry dollar or two that she wanted. It's that we as a society take so little responsibility for the tragedies in our midst.

One part of our population is hawkish about foreign affairs, ready to fight anywhere around the globe, convinced that this "superpower" should whip the pants off recalcitrant countries wherever they are. And then turn around and mock the part of our population which wants to take care of our wounded and our homeless.

Real conservatives in this country used to talk about responsibility. But the way we are treating our veterans and our homeless is totally irresponsible. Men and women who have served this country abroad and whose minds and bodies have been destroyed in the process are entitled to our help and concern.

The homeless population in the U.S. is not just a story of personal irresponsibility as some would have it. Cities have bulldozed the places the homeless used to be able to afford so that the wealthier among us would not have to see buildings that had become eyesores; now we step over the people that have become eyesores to the uncaring. Mental institutions have been closed without provision for halfway houses, outpatient services and group homes because some of us don't want them in our neighborhoods. We hound people who have paid for their crimes so that they have no path to rehabilitation, and many sleep on streets. Homelessness is not just something that happens to people; it happens in a society that has been turning its back.

Homelessness is not just something that happens to other people, people you don't know. In an urban world it's easy to lose track of people you used to know. I was rather comically attacked on a New York City subway car by someone I'd known as a schoolboy. He was angry at me because he remembered I'd scored better in some class we had together. In those days he had been class clown. Perhaps, there on the subway, he hadn't been taking his medicine. It was comical – he merely knocked himself down – but it was emotionally jarring. I had two very young children at the time and was wary but it also hit home.

Another woman I'd dated in high school had spent a career working to help the homeless. She told me a story not long ago about an evening when she and her late husband, whom I also knew back when we were in school, came home to their apartment in an expensive part of New York City. There by the front door of the building they saw a disheveled man, obviously homeless, begging for loose change. Suddenly her husband said "Joe"! A friend they had lost touch with. But life had been cruel to him. She told me they took him upstairs, cleaned him up and fed him a good meal.

A young friend of ours may have spent a year homeless out west – we'll never be sure; we only know he was identified when he finally passed away.

This is a cruel, complicated world. And I cannot subscribe to the notion that there is any shame in a heart that bleeds and a head that knows that these problems can only be ameliorated if we accept collective responsibility to handle our affairs more humanely.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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April 27, 2010: Need for true Republicans

Ronald Reagan famously said government is the problem. Lawyers are taught to be very careful about making all or nothing statements like that. The real world is usually full of qualifications. Like all categorical statements, the claim that government is the problem is false, misleading and harmful.

We now see a movement of people who are distinguished largely by their ignorance simply demanding that government do less and less with less and less. And they justify their claims with references to America's past. Actually they are ignorant of our history and merely reshape it to suit their assumptions. In fact they are undermining the great work of our ancestors in giving us a lasting Constitution with strong and independent branches designed to do a job – the job of improving the welfare of every American.

So too this movement of protestors are undermining the historic foundations of the Republican Party. The Republican Party was formed to solve America's greatest problem – the scourge of slavery. And from its beginnings it also addressed our economic and social problems. It promised federal lands to those who would work it, and built the country's great land grant universities to improve our farms and society with education.

The Republican Party was not formed as the enemy of immigrants, African-Americans or collective action to deal with common problems. It was not formed as a party of economic freedom to dump on everyone who didn't have the clout to resist.

The Republican Party was formed as the can-do party that built transcontinental railroad – it didn't stand on the sidelines and count pennies, saying developing the country was a job for business in which government had no role. It built on the tradition of positive government involvement symbolized by the Erie Canal, the canal that built New York into the Empire State, whose accomplishments continue to give this state one of the healthiest economies in the country.

The Republican Party controlled this country when we adopted the anti-trust laws and built the first public health systems. That Republican Party was not terrified by the hallucination that doing good is doing bad.

The Republican Party was not founded on the notion that anything and everything the government does is bad. It was founded on the notion that the government had a job to do to improve the health and welfare of this country. It was committed to that task. It kept the nation together, ended slavery and its economic agenda worked as well. Its land grants built the west. Its land grant colleges became our major universities and engines of American economic growth.

We need that Republican Party now. We need a Republican Party that joins in solving our racial divides, not a party that tries to hold the line against social justice. We need a Republican Party that stands for liberty, not for torture. We need a Republican Party that stands for public health, not a party that stands for the right to die of disease and gunshot wounds. We need a party whose principle is not a rejection of mutual aid but an embrace of public improvement.

It's time for real Republicans to stand proud and take back their party.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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April 20, 2010: Superpower

Americans have grown accustomed to talking about this nation as the world's superpower. We glory in the notion that we are the top dog in the international pack. It's a very dangerous conceit.

A list of the empires that thought they ruled the world should be enough to make the warning clear: the Persian, Greek and Roman empires were all humiliated when they stood astride large portions of the earth. The Chinese, Spanish, French and Germans all once thought they were the center of the earth. And not so long ago "the sun never set[] on the British Empire." The Ottoman Turks were heir to a large portion of the old Roman Empire but they were destroyed, not unlike the Roman, from both inside and out.

Being top gun means being everyone's target. It can be lonely and dangerous at the top.

We Americans like to celebrate ourselves as if our stature were somehow automatic and too many of us like to pit our virtues against any effort to improve, as if virtue exists outside the will to weed our flaws and improve our strengths.

This celebration of ourselves seems patriotic until it becomes obvious that we have been hiding our mistakes, covering our sins, and protecting ourselves from needed housecleaning. Like the corporations that become resistant to change, and the countries that allow politicians to entrench themselves as two bit dictators, countries that resist self-criticism and self-improvement are doomed to failure and destruction.

Basking in our sense of glory we are defending what we call American interests the world over, and fighting two wars against enemies that replicate themselves across the world. We have poured billions into defense against the last tactic of the terrorists. Like the French Maginot line after World War I that the Germans simply bypassed in 1939, we spend billions on airline security despite evidence that much smaller expenditures could give us virtually as much security and despite evidence that there are much more likely threats to more vulnerable facilities that remain unprotected. We are still fighting the last attack instead of thinking strategically about the next. We are providing the public with the mirage of security for political PR rather than actually protecting the public from much more realistic dangers. Self-congratulations and politicians who govern by pollsters are dangerous.

We comfort ourselves in anti-immigrant measures despite evidence that we have a surfeit of home-grown terrorists. Worse we have political movements that are bound and determined to undermine America's ability to govern itself and thereby to protect itself.

This country is suffering from an auto-immune disease, condemning government generally as if we could defend ourselves without it, and condemning as too expensive everything but the military that might make Americans safer. This country is unprepared for emergencies.

I find myself censoring the details, not wanting to put it out there, but people should begin demanding meetings with safety services officials and with the political leadership of our states and communities and start asking questions about what they are doing to deal with different kinds of possible attacks – chemical, biological, water, utilities, radioactive, the list goes on. I think you would be horrified. But we must begin to demand, not that government spend less, but that government protect us, not by assuming that we are invincible, but by taking the steps necessary to prevent real catastrophe.

Self-congratulation is a path to humiliation, defeat and destruction. I'm tired of self-congratulations and want honest self-criticism and constructive change – the only safe path to protect ourselves and our children.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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April 13, 2010: John Paul Stevens

Some of us grew up with Mozart envy, feeling over the hill when we were barely out of our teens. But then here's John Paul Stevens who has made his mark in his 80s. He announced he would retire at the end of this Supreme Court term, when he will be 90 years old, convinced that he is aging because his tennis game is slowing down.

Stevens has been something of a surprise. He joined the Court as a conservative member, usually siding with other conservatives on the Court against its liberal wing. He cut his teeth fighting affirmative action and supporting harsh treatment of criminal suspects. But Stevens kept growing on the bench – a term conservatives hate, but growing is the right word. Serving on the Supreme Court one sees the best and the worst from all over the country. One sees recurring problems. One sees how solutions don't live up to their PR. And Stevens was always big enough to learn and to grow.

Much of our protections for criminal procedure – whatever the conservatives on this Court have left of them – grew out of the Court's constant exposure to the unreliable confessions extracted by threats and lies. The Court learned as far back as the 1930s that the third degree which we rightly condemn when used in other parts of the world was doing considerable damage right here in America. And it learned that power put in the hands of police and other public officials is easily abused with terrible consequences for the innocent, for those who could be saved, and for the society that has to deal with the consequences of official abuse. Over the last sixteen years:
  • Stevens led the Court in arguing that courts had an obligation, he phrased it more modestly to win a majority, to look at new evidence showing that a convict was in fact innocent before putting him to death.
  • He argued that a state had no proper purpose in refusing to let a prisoner have DNA that remains in state files tested where it could acquit the innocent, and identify the guilty.
  • And most recently he led a majority of the Court in beating back an effort to turn back to the dark ages of the third degree, now in the form of torture practiced on people accused of terrorism, whether merely swept up in the dragnet of a war zone, turned over by perfidious bounty seekers or otherwise in American custody.
Stevens had only recently joined the Court when it decided Regents of the University of California v. Bakke, the court's first big brush with affirmative action. Stevens wrote a dissent, joined by Chief Justice Burger and by Justices Stewart and Rehnquist, taking the position that the University program violated a federal statute. Perhaps because he had come to understand how intractable the problems were, how common assumptions and social practices routinely undervalued African-Americans, by the 90s he had become a supporter. In a case testing a federal effort to help minority contractors, Stevens wrote that the Court had disregarded "the difference between a "No Trespassing" sign and a welcome mat."

In his 80s he has become the Court's most reliable voice for fairness and justice, for the very notion that the law, and the Constitution, are not indifferent to matters of human decency.

John Paul Stevens will be missed.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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April 5, 2010: Sarah Palin's Irresponsible Rhetoric

Following the vote on health care, Sarah Palin put 20 congressmen in gun sights on her Facebook page. And she followed that up with "Don't Retreat, Instead RELOAD!" She is unapologetic. According to Palin, violent language is just a fact of American life, part and parcel of our sports talk. Just how should we take that?

Students of group behavior tell us that groups are influenced by the crowd, by the rhetoric and behavior of those around them. Could a political leader push a peace loving citizen all the way to violence? Probably not. You have to be somewhat predisposed. But if people are reacting angrily already, the likelihood that some people will overreact gets larger.

Sarah Palin's gesture also mimics some of the websites that displayed the faces of abortion doctors, and showed faces crossed out when they were murdered. The Courts of Appeals found some of those pages were threats and could be enjoined by the courts. In the abortion context, doctors were murdered.

And in the past weeks, violence has been directed against some of the members of congress on her list. So far no person has been injured; the violence has been directed against property. Perhaps that's where it will stop.

But on Friday, March 19, Mike Vanderboegh blogged "To all modern Sons of Liberty: THIS is your time. Break their windows. Break them NOW." And he added:

if we break the windows of hundreds, thousands, of Democrat party headquarters across this country, we might just wake up enough of them to make defending ourselves at the muzzle of a rifle unnecessary. -http://sipseystreetirregulars.blogspot.com/search?q=muzzle

As suggested by Vanderboegh's blog, there are in fact lots of groups training to take on the U.S. Army in order to defend their definition of freedom from the rest of us. The FBI and several private organizations are tracking these groups because the danger they pose is real. People like that are armed. They have killed government workers trying to do their jobs. One of the people in that violent world blew up the federal building in Oklahoma City. We have our own home grown terrorists.

So what is Palin really up to? Is she so stupid that she doesn't know this isn't football? That there are people willing to commit murder and mayhem? That suggesting that people reload, and pointing them at targets through gun sights, is incendiary?

Generally in the law we hold that people intend and are responsible for the natural and probable consequences of their actions. The law gives people somewhat more leeway in the context of speech. But we as citizens are entitled to treat that kind of incitement as disloyal and disgusting. When politicians or anyone else suggests violence against people for their politics, it is entirely appropriate to question, nay deny, that they are loyal Americans. Loyal Americans understand that sometimes governments make decisions with which we as individuals disagree. That is the price of living in a free country, of living in America; indeed, it is the price of civilization. So my response to Palin: grow up or get out.

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 23, 2010: Government preparedness in the face of disaster

I'm delighted that the Health Care bill has passed. But everybody else is talking about it. So I'm going to talk about something else.

Our son, Eli, an engineer who has worked on the design of large buildings from Mexico to Moscow, explained some things to me about the recent quakes in Haiti and Chile.

First, the Richter scale measures the total energy of quakes, not their power at a specific point. The Port au Prince quake was very localized but consistent with very violent local shaking. The Chilean quake was enormous, spread over a very large area, which made it score very high on the Richter scale, but the violence of the shaking at any one point may have been no greater than what people felt in Port au Prince.

Second, he explained to me that subduction quakes, which are typical of the Pacific rim of the Americas, tend to cause a good deal of up and down shock waves. But earthquakes that are caused by the sliding of tectonic plates from side to side, more typical of the eastern side of the Americas, tend to cause a great deal of side to side shaking. Those two have very different effects on the buildings. Buildings that are built to support great vertical stresses may not be able to sustain much side to side stress. And local terrain also makes a large difference in the destructiveness of different types of quakes.

But, based on the reports we've seen, the biggest difference was that Chile, and specifically the Chilean government, was prepared. They had earthquake codes that required that buildings be built to withstand large quakes. That's an engineering problem and engineers can do a lot to mitigate what would otherwise be large disasters. Chile, through its government, decided that mitigation of such large natural disasters was well worth the effort, and it paid off in the recent quake, among many others. In addition, the government was prepared to move into damaged areas, with food, medical and other supplies and heavy equipment.

In Haiti there was no governmental preparedness to speak of, no significant building regulation, no appropriate plans for how to react to quakes, and only a single, damaged, airport through which to get supplies.

The Tea Party and other folk who have been yelling that government is the problem and that government should do less and less, if anything, have been missing the big issues – the difference between what we need government to do, how it should do it and whether government gets our support to do it well.

So, here, the damage to New Orleans was a government failure to do its job much more than it was the consequence of a natural disaster. We failed to plan, to regulate, to enforce and to carry out measures to mitigate disasters. We paid for the absence of government preparedness, not for intrusive over-regulation of private construction.

Conservatives argue that economics solves everything without government. But natural disasters have been with us for millenia and people still settle and set up businesses in the path of hurricanes on the Atlantic and Gulf Coasts, major flood plains and tornado alley. So much for economic theory – it simply does not reflect the facts.

We need good government, effective government, not government so starved of resources and so undermined by people who are trying to dismantle it that it cannot protect us and provide an environment conducive to life, liberty and the pursuit of happiness.

And yes, that also applies to health care.

Steve Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He is also President of the Capital Region Chapter of the New York Civil Liberties Union and served in the US Peace Corps in Iran.

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March 16, 2010: Israeli Settlements

First I need to fly my colors. In the forties, movie theaters used to show news films between double features. I remember films, when I was very small, of allied soldiers at the gates of concentration camps. I have always cared about the survival of Israel.

I was working in Iran during the Six Day War. Despite religion, many rooted for Israel. I listened to news of the war on the BBC with an Iranian who had studied in England and in Israel. He was torn but admired the tiny Israeli state. In that simpler world it seemed Israel had a shot at survival.

Israel had realized Arab states were massing forces for an attack. Israel struck first and took the lands to the River Jordan. One could argue then that Israel had a right to keep the land.

Still, it was obvious four decades ago that Israel could not permanently occupy the West Bank. Palestinians would soon outnumber the Jewish population. Israel was making peace with some of its neighbors but it could not make peace with a conquered people – there was no one to make peace with. And in fact the conflict keeps getting worse and the politics less sustainable.

It’s not about blame. There’s plenty of that to go around in the mutual killing and murder. I long believed Israel’s best chance for peace was to turn the other cheek – to defend without retaliating. That, however, is hard to accept. We’ve never been willing. So the Palestinians succeeded – Israel retaliated and Israel took the blame.

Now the conflict is past calming. Palestinians talk of a one state solution. Which of course means a fight to the death for both peoples. Like the bumper sticker says, he who has most when he dies wins"! Indeed.

The historic issue is whether Israel can take over enough land and push out so many Palestinians that further resistance becomes impossible before support for Israel simply snaps and the Arab world reclaims Palestine as it did from the Crusaders a thousand years ago.

Too many American Jews are convinced support for Israel will not evaporate. Israeli hubris in announcing settlements while Vice President Biden was on a peace keeping mission in the Middle East shows precisely the path to hell. People convinced that history needs no help may find that history proceeds without pity.

But where do we go? Foreign policy by domestic politics is unreliable. Support for throwing ultimatums at Israel could turn into antagonism toward Israel itself. Mass politics is not very discriminating. Presidents, peoples and countries are good or bad. Grays easily disappear.

Worse, we have been trying to be both supporter, supplier and peace maker. The UN cannot broker peace because it has been taking sides. Peace can’t be brokered if American support is unconditional, but imposing conditions makes us a party. And peace can’t be brokered if only one side cares about the conditions, or no sides care about the conditions.

Experts have long been saying that the settlement is obvious but no one is willing to accept it. Imposing it could solve the conflict or make us even more of a target. If everyone insists on a fight to the finish, on all-or-nothing, maybe the best we can do is stand aside and let history take its course. No one knows the best answer. It’s a very high stakes game in which everyone loses.

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 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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